UNITED STATES REPORTS VOLUME 267 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1924 FROM JANUARY 19, 1925, TO AND INCLUDING (in part) APRIL 13, 1925 ERNEST KNAEBEL REPORTER GOVERNMENT PRINTING OFFICE WASHINGTON 1925 The price of this volume is fixed under the Act of July 1, 1922, c. 267, 42 Stat. 816, at $2.75 per copy, delivered. Sold by the Superintendent of Documents, Government Printing Office, Washington, D. C. ii JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS 1 WILLIAM HOWARD TAFT, Chief Justice. OLIVER WENDELL HOLMES, Associate Justice. WILLIS VAN DEVANTER, Associate Justice. LOUIS DEMBITZ BRANDEIS, Associate Justice. GEORGE SUTHERLAND, Associate Justice., PIERCE BUTLER, Associate Justice. EDWARD T. SANFORD, Associate Justice. HARLAN FISKE STONE, Associate Justice.2 HARLAN FISKE STONE, Attorney General.2 JOHN G. SARGENT, Attorney General.3 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 p. IV, post. 2 On January 5, 1925, President Coolidge nominated Harlan Fiske Stone, of New York, to fill the place left vacant by retirement of Mr. Justice McKenna. The nomination was confirmed by the Senate, and Mr. Stone was commissioned, on February 5, 1925. He took the oath in open court, and ascended the bench, on March 2, 1925. 3 On March 17, 1925, President Coolidge nominated John G. Sargent, of Vermont, as Attorney General, to succeed Mr. _ Stone, resigned. The nomination was confirmed by the Senate and the appointment made on that day and Mr. Sargent took the oath on the day following. nr SUPREME COURT OF THE UNITED STATES October Term, 1922.1 Order of Allotment of Justices. 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, Harlan Fiske Stone, Associate Justice. For the Third Circuit, Louis Dembitz Brandeis, Associate Justice. For the Fourth Circuit, William H. Taft, Chief Justice. For the Fifth Circuit, Edward T. Sanford, Associate Justice. For the Sixth Circuit, James C. McReynolds, Associate Justice. For the Seventh Circuit, Pierce Butler, Associate Juètice. For the Eighth Circuit, Willis Van Devanter, Associate Justice. For the Ninth Circuit, George Sutherland, Associate Justice. March 16, 1925. 1 For next previous allotment, see 266 U. 8., p. ix. IV TABLE OF CASES REPORTED. Page Agee, Continental Casualty Co., v................ 610 Alaska, Pacific Am. Fisheries v.............. 589 Alejandrino v. Quezon............................ 591 Alexsen, Carr v.................................. 607 Alworth-Stephens Co., Lynch Executrix v..........364 Ambrose, Chicago & Alton R. R. Co. v..............598 American Ry. Co. of Porto Rico, Lopez v.......... 603 American Sugar Ref. Co., Small Co. v..............233 American Surety Co., et al. v. Butterworth-Judson Co. et al...................................... 387 Anderson, Myers v................................ 609 Archibald McNeil Co., United States v............ 302 Asphalt Belt Ry. et al., Smyth, et al v.......... 326 Atchison, Topeka & S. F. Ry. Co. v. Collins...... 609 Atchison, Topeka & S. F. Ry. Co., Stevens v...... 603 Atchison, Topeka & S. F. Ry. Co. v. United States.. 591 Austin Nichols & Co. v. S. S. Isla de Panay......260 Bacon & Matheson Forge Co. v. United States...... 585 Baltimore Grain Co., Federal Trade Comm, v....... 586 Banco di Roma v. Philippine National Bank........ 592 Barber, Rousso v................................ 596 Barclay & Co. v. Edwards, Collector.............. 442 Barker, Ex Parte................................ 577 Bartlett & Kling v. United States................ 573 Barton v. Leyte Asphalt & Mineral Oil Co......... 606 Bauch, United States v........................... 611 Bauer Cooperage Co. v. Maxwell Co................ 604 Bauer Cooperage Co. v. Stark..................... 604 Bauer Cooperage Co. v. Union Sav. Bank & Trust Co............................................. 604 V VI TABLE OF CASES REPORTED. • Page Becher v. United States......................... 602 Belshe, Seaboard Air Line Ry. Co. v............. 608 Birnbaum v. United States....................... 602 Black v. Black.................................. 571 Blundell, Executor v. Wallace................... 373 Bd. of County Comm., United States v............ 587 Bd. of Directors, Miller Levee Dist. No. 2 v. Prairie Pipe Line Co.................................. 573 Bodkin, Wells, Adrnx. v......................... 474 Bohm v. Chicago, M. & St. P. Ry. Co............. 600 Bohler, Collector v. Callaway................... 479 Booth, Greene v................................. 598 Boston & Maine R. R., Proprietors of Locks and Canals Merrimack River v...................... 573 Bourland, Fort Smith Light & Traction Co. v..... 330 Bowers v. Coxe.................................. 408 Bowers v. Kaufman............................... 408 Brambini v. Superior Court of California........ 584 Brambini v. United States....................... 584 Brooks v. United States......................... 432 Brooks Co. v. United States..................... 455 Browne v. Union Pac. R. R. Co................... 255 Brownstein v. United States..................... 600 Buck v. Kuykendall.............................. 307 Buffington v. Georgia........................... 606 Bush & Sons Co. v. Maloy........................ 317 Butterick Co. v. Federal Trade Comm............. 602 Butterworth-Judson Co. et al., American Surety Co. v .................................... 387 Butterworth-Judson Co. et al., Fidelity & Deposit Co. v......................................... 387 Butterworth-Judson Co. et al., United States v.. 387 Cairo, Truman & So. R. R. v. United States...... 350 California, McCalla Co. v....................... 585 Callaway, Bohler, Collector v................... 479 Camden Fire Ins. Ass’n. v. U. S. Manufacturers Export Ass’n...................................... 606 TABLE OF CASES REPORTED. VII Page Canard v. Snell............................,. 578,596 Cannon Mfg. Co. v. Cudahy Packing Co............. 333 Carolina-Tennessee Power Co., Hiawassee River Power Co. v.................................... 586 Carr v. Alexsen.................................. 607 Carroll et al. v. United States.................. 132 Catchings, Ex parte............................ 571 Center v. United States......................... 575 Central Leather Co. v. S. S. Goyaz............... 594 Central R. R. of New Jersey et al., Newark, City of, et al. v....................................... 377 Chapin v. Walker................................. 577 Chapman, Cowokochee v............................ 571 Ches. & Ohio Ry. Co. v. Nixon.................... 590 Ches. & Ohio Ry. Co. v. Thompson Mfg. Co......... 588 Chestatee Pyrites & Chemical Co., ex rei. United States, Work v................................. 185 Chevrolet Motor Co. of California, Southern Pacific Co. v............................................ 611 Chicago & Alton R. R. Co. v. Ambrose............. 598 Chicago G. W. R. R. Co. v. Schendel.............. 287 Chicago, M. & St. P. Ry. Co., Bohm v............. 600 Chicago, M. & St. P. Ry. Co. v. Coogan........... 589 Chicago, M. & St. P. Ry. Co. v. United States.... 403 Chippewa Springs Corp. v. Morand Bros............ 592 Cholskos v. United States........................ 604 Chrisp v. Davis.................................. 572 Christopher, Williams v.......................... 605 Clay v. District Court of Colorado............... 574 Clegg v. City of Spartanburg..................... 611 Coamo, The...................................... 220 Cody, Crowson v.................................. 579 Collector of Customs, Compania General de Tabacos de Filipinas v............................... 598 College Point Boat Co. v. United States........... 12 Collins, Atchison, Topeka & S. F. Ry. Co. v...... 609 Collins v. Gibson................................ 605 Collins, Southern Pacific Co. v.................. 609 VIII TABLE OF CASES REPORTED. Page Colora v. New Jersey............................ 576 Colorado, District Court, Clay v................ 574 Colorado, New Mexico v........................... 30 Colorado, New Mexico v.......................... 582 Commission, Ohio Utilities Co. v................ 359 Compania General de Tabacos de Filipinas v. Collec- tor of Customs.................................. 598 Continental Casualty Co. v. Agee................ 610 Coogan, Chicago, M. & St. P. Ry. Co. v.......... 589 Cooke v. United States.......................... 517 Cooley v. Ozment................................ 609 Corby Estate v. City of St. Joseph.............. 578 Cornell S. S. Co., United States v.............. 281 Coty, Ivory Novelties Trading Co. v............. 611 County of Tuolumne v. R. R. Comm, of California.. 584 Court of Industrial Relations of Kansas, Wolff Pack- ing Co. v....................................... 552 Cowokochee v. Chapman........................... 571 Coxe, Bowers v.................................. 408 Coxe, United States v........................... 408 Crampton, O’Mara v.............................. 575 Crane, Sala v................................... 585 Crowson v. Cody................................ 579 Crowther v. Larson.............................. 593 Cudahy Packing Co., Cannon Mfg. Co. v........... 333 Cullen v. United States......................... 593 Curtis Ex parte................................. 582 Daugherty, United States v............. '....... 590 Davis, Agent v. Newton Coal Co.................. 292 Davis, Chrisp v................................. 572 Davis, Hurr v................................... 572 Davis v. Mabee.................................. 599 Davis v. Michigan Trust Co..................... 591 Davis v. Pringle................................ 588 Davis v. Weiss.................................. 588 TABLE OF CASES REPORTED. IX Page Davidson, United States v...................... 597 Davisson v. New Mexico......................... 574 Derby v. Steam Tug Panther..................... 606 Disconto-Gesellschaft v. U. S. Steel Corp, et al. 22 Dodd v. Westmoreland........................... 595 Donnelly v. Massachusetts...................... 603 Drumright, Tiger v............................. 578 Duffy v. Pitney................................ 595 Duncan, Johnson v.............................. 600 Durand v. First State Bank of Philipsburg...... 582 Dysart et al., Yeiser v........................ 540 Dyson, Lowe v.................................. 574 Dyson, McCarthy v.............................. 574 Edwards, Collector, Barclay & Co. v.............. 442 Evans v. United States......................... 595 Ewing v. Shauver.............................. 601 Ex parte Barker................................ 577 Ex parte Catchings............................. 571 Ex parte Curtis................................ 582 Ex parte Glavadanovic.......................... 579 Ex parte Grossman............................... 87 Ex parte Mebane................................ 571 Ex parte Sanders............................... 583 Federal Coal Co., Flanagan v................... 222 Federal Trade Comm. v. Baltimore Grain Co........ 586 Federal Trade Comm., Butterick Co. v........... 602 Federal Trade Comm. v. Hammond, Snyder & Co.. 586 Federal Trade Comm. v. H. C. Jones Co.......... 586 Fenner & Beane v. Holt......................... 605 Ferguson v. Pitney............................ 595 Fidelity & Deposit Co. v. Butterworth-Judson Co. et al.......................................... 387 Fidelity Trust Co., Lederer v................... 17 Fink v. Tod.................................... 571 First Nat. Bank of Mobile v. United States....... 576 X TABLE OF CASES REPORTED. Page First State Bank of Philipsburg, Durand v....... 582 Flanagan v. Federal Coal Co..................... 222 Florida, Whitten v.............................. 608 Foley v. New York, 0. & W. Ry. Co............... 605 Forbes, Ragan v................................. 599 Fort Smith Light & Traction Co. v. Bourland.....330 Fort Smith Spelter Co. v. Gas Co................ 231 France & Canada S. S. Corp. v. Midland Linseed Products Co................................... 599 Fulton Bank v. Hozier........................... 276 Garvey v. United States......................... 604 Gas Co., Fort Smith Spelter Co. v...........'.... 231 Georgia, Buffington v.......................... 606 Georgia Comm, et al., Western & Atlantic R. R. v.... 493 Georgia, Singleton v............................ 579 Gibson, Collins v............................... 605 Gilseth v. Risty................................ 584 Glavadanovic, Ex parte.......................... 579 Government of Mexico, Oliver Am. Trading Co. v.. 596 Goyaz, S. S., Central Leather Co. v............. 594 Goyaz, S. S., Schmoll Fils & Co. v................. 594 Grayson et al. v. Harris et al.................. 352 Green Consolidated Copper Co., Hallenberg v..... 582 Greene v. Booth................................. 598 Gross, Robling v................................ 610 Gross, Smith v.................................. 610 Grossman, Ex parte................................ 87 Guardian Savings & Trust Co. v. Road Imp. District. 1 Guardian Sav. & Trust Co. v. Road Imp. Dist..... 580 Hallenberg v. Green Consolidated Copper Co...... 582 Hamilton Michelson & Co., United States v....... 603 Hammer v. United States......................... 591 Hammond Snyder & Co., Federal Trade Comm. v.. 586 Hardie Co. v. Lambom............................ 594 Harris et al., Grayson et al. v................. 352 TABLE OF CASES REPORTED. xi Page Hartford Accident & Indemnity Co. v. Southern Pacific Co..................................... 590 Hiawassee River Power Co. v. Carolina-Tennessee Power Co...................................... 586 Hoeffner v. National Steamship Co............. 600 Holt, Fenner & Beane v....................... 605 Horowitz v. United States..................... 458 Hozier, Fulton Bank v......................... 276 Hunter v. United States....................... 597 Hurley, Mullen v...............................607 Hurr v. Davis................................ 572 Indian Refining Co. v. Taylor................. 575 Isla de Panay S. S., Nichols & Co. v.......... 260 Isla de Panay S. S., Sanchez v. ............. 260 Isla de Panay, The........................... 260 Isla de Panay.S. S., Tolibia & Co. v.......... 260 Ivory Novelties Trading Co. v. Coty........... 611 Janson, McCullough v.......................... 608 Johnson v. Duncan............................ 600 Johnson, Keith v.............................. 590 Jones Co. H. C., Federal Trade Comm, v........ 586 Kansas, Court of Industrial Relations of, v. Wolff Packing Co.................................... 552 Kaplan v. Tod................................. 229 Kaufman, Bowers v............................ 408 Kaufman, United States v...................... 408 Keith v. Johnson.............................. 590 King v. United States......................... 593 Kling & Bartlett v. United States............. 573 Kuras v. Michigan Central R. R. Co............ 596 Kuykendall, Buck v............................ 307 Lackner v. Starr.............................. 601 Lamb, Selvage v............................... 597 Lambom & Co., Small Co. v..................... 248 XII TABLE OF CASES REPORTED. Page Lambom, Hardie Co. v.......................... 594 Lancaster and Wallace, Receivers v. McCarty et al.. 427 Larson, Crowther v............................ 593 Law, United States v.......................... 608 Lederer v. Fidelity Trust Co................... 17 Lee v. Lehigh Valley Coal Co. et al............542 Lehigh Valley Coal Co. et al., Lee v.......... 542 Lewis v. Roberts.............................. 467 Leyte Asphalt & Mineral Oil Co., Barton v...... 606 Lichauco, Tan Pho v........................... 602 Llama, The..................................... 76 Lopez v. Am. Ry. Co. of Porto Rico............ 603 Lorillard Co. P., United States v............. 471 Louisville & Nashville R. R. v. United States.. 395 Loveland & Hinyan, Pere Marquette Ry. Co. v.... 601 Lowe v. Dyson.................................. 574 Lynch, Executrix v. Alworth-Stephens Co....... 364 Mabee, Davis v................................ 599 Mabee, Mellot v.............................. 599 Magnolia Petroleum Co. et al., Price v........ 415 Maloy, Bush & Sons Co. v...................... 317 Margolin v. United States..................... 588 Massachusetts, Donnelly v..................... 603 Massachusetts Trust Co., McPherson v.......... 592 Maxwell Co., Bauer Cooperage Co. v............ 604 McCalla Co. v. California..................... 585 McCarthy v. Dyson............................. 574 McCarty et al., Lancaster and Wallace, Receivers v.. 427 McCullough v. Janson.......................... 608 McCurdy, Samuels v ........................... 188 McGovern, United States v..................... 608 McNeil, Reich v............................... 601 McNeill & Sons Co., Archibald, United States v.... 302 McPherson v. Massachusetts Trust Co........... 592 Mebane, Ex parte............................ 571 TABLE OF CASES REPORTED. xm Page Mellot v. Mabee............................. 599 Merchants Mutual Automobile Liability Ins. Co. v. Smart........................................ 126 Merritt v. United States................ 338 Michigan Central R. R. Co., Kuras v.......... 596 Michigan Trust Co., Davis v.................. 591 Middleton & Co., United States v............. 603 Midland Linseed Products Co., France & Canada S. S. Corp, v...................................... 599 Miller et al., Swiss National Insurance Co. v. 42 Mills, St. Louis-San Francisco Ry. Co. v..... 589 Missouri Pac. R. R. Co. v. Road Imp. Dist.... 587 Missouri Pac. R. R. Co., v. Stroud........... 404 Mitchell et al. v. United States............. 341 Mixer, Modern Woodmen of America v........... 544 Modern Woodmen of America v. Mixer........... 544 Morand Bros., Chippewa Springs Corp. v.. .... 592 Moore, E. N. v. United States..........‘..... 593 Moore, G. L. v. United States................ 599 Morse v. United States........................ 80 Mountain Water Supply Co., Sagamore Coal Co. v.. 592 Mullen v. Hurley............................. 607 Mullen v. United States...................... 598 Murphy Wall Bed Co. v. Rip Van Winkle Wall Bed Co......................................... 594 Myers v. Anderson............................ 609 Nahmeh v. United States...................... 122 Naponiello, United States v................... 577 National Steamship Co., Hoeffner v........... 600 Newark, City of, et al. v. Central R. R. of New Jersey et al.................................... 377 New Jersey, Colora v......................... 576 New Mexico v. Colorado........................ 30 New Mexico v. Colorado........................ 502 New Mexico, Davisson v....................... 574 New Mexico v. Texas........................... 583 XIV TABLE OF CASES REPORTED. Page Newton Coal Co., Davis, Agent v............... 292 New York, 0. & W. Ry. Co., Foley v............ 605 Nichols & Co. v. S. S. Isla de Panay.......... 260 Nixon, Ches. & Ohio Ry. Co. v.....•........... 590 North Pac. Steamship Co. v. Soley............. 583 Nyquist v. United States...................... 606 Ohio Utilities Co. v. Commission.............. 359 Oklahoma v. Texas............................... 7 Oklahoma v. Texas............................ 452 Oklahoma v. Texas............................. 580 Oliver Am. Trading Co. v. Government of Mexico... 596 Olson & Olson v. U. S. Spruce Production Corp.. 462 O’Mara v. Crampton............................ 575 O’Shaughnessy v. United States............ 610, 611 Ozment, Cooley v.............................. 609 Ozment, Wingo v............................... 609 Pacific Am. Fisheries v. Alaska............... 589 Panama R. R. Co. v. Vasquez................... 589 Panther, Steam Tug, Derby v.................. 606 Parker v. Texas............................... 604 Patt v. United States......................... 598 Patton v. Tod................................. 607 Pearson v. United States...................... 423 Pennsylvania R. R. Co., Pennsylvania R. R. Fed. No. 90 v...................................... 203 Pennsylvania R. R. Co., Pennsylvania System Brotherhood v.......................................219 Pennsylvania R. R. Fed. No. 90 v. Pennsylvania R. R. Co...................................... 203 Pennsylvania System Brotherhood v. Pennsylvania R. R. Co...................................... 219 Pere Marquette Ry. Co. v. Loveland & Hinyan.... 601 Philippine National Bank, Banco di Roma v...... 592 Pitney, Duffy v............................... 595 Pitney, Ferguson v...................... • • • 595 TABLE OF CASES REPORTED. xv Page Prairie Pipe Line Co., Bd. of Directors, Miller Levee Dist. No. 2 v.................................... 573 Price v. Magnolia Petroleum Co. et al........... 415 Pringle, Davis v............................... 588 Proprietors of Locks and Canals, Merrimack River v. Boston & Maine R. R.............................. 573 Quezon, Alejandrino v........................... 591 Ragan v. Forbes................................. 599 R. R. Comm, of California, County of Tuolumne v.. 584 Read v. United States........................... 596 Reich v. McNeil................................. 601 Rip Van Winkle Wall Bed Co., Murphy Wall Bed Co. v........................................... 594 Risty, Gilseth v................................ 584 Rives, United States ex rel., Work v............ 175 Road Imp. Dist., Guardian Savings & Trust Co. v... 1 Road Imp. Dist., Guardian Savings & Trust Co. v.... 580 Road Imp. Dist., Missouri Pac. R. R. Co. v....... 587 Roberts, Lewis v................................ 467 Robeson Process Co. v. Robeson.................. 597 Robeson, Robeson Process Co. v.................. 597 Robling v. Gross................................ 610 Ross v. South Dakota........................... 601 Rousso v. Barber................................ 596 Rudd, Walbridge-Aldinger Co. v.................. 594 Sagamore Coal Co. v. Mountain Water Supply Co... 592 St. Augustine, City of, St. Johns Elec. Co. v.... 607 St. Johns Elec. Co. v. City of St. Augustine..... 607 St. Joseph, City of, Corby Estate v............. 578 St. Louis, K. & S. R. R. Co. v. United States.... 346 St. Louis-San Francisco Ry Co. v. Mills......... 589 Sala v. Crane................................... 585 Salt Lake County v. Utah Copper Co.............. 610 Samuels v. McCurdy........................... 188 Sanchez v. S. S. Isla de Panay.................. 260 XVI TABLE OF CASES REPORTED. Page Sanders, Ex parte.............................. 583 Sanford & Brooks Co. v. United States.......... 455 Santa Fe Pac. R. R. Co. v. Work................ 511 Schendel, Chicago G. W. R. R. Co. v............ 287 Schmoll Fils & Co. v. S. S. Goyaz.............. 594 Seaboard Air Line Ry. Co. v. Belshe............ 608 Selvage v. Lamb................................ 597 Shauver, Ewing v............................. 601 Shewan & Sons, Inc. v. United States............ 86 Sigmon, Yadkin R. R. Co. v....................*. 577 Singleton v. Georgia........................... 579 Smale v. United States......................... 602 Small Co. v. American Sugar Ref. -Co........... 233 Small Co. v. Lamborn & Co.................... 248 Smart, Merchants Mutual Automobile Liability Ins. Co. v.......................................... 126 Smith v. Gross................................. 610 Smyth et al. v. Asphalt Belt Ry. et al......... 326 Snell, Canard v............................ 578, 596 Soley, North Pacific S. S. Co. v................... 583 South Dakota, Ross v........................... 601 Southern Pacific Co. v. Chevrolet Motor Co. of California ........................................ 611 Southern Pacific Co. v. Collins................ 609 Southern Pacific Co., Hartford Accident & Indemnity Co. v.....................:.................... 590 Spartanburg, City of, Clegg v.................... 611 Standard Oil Co. v. United States............... 76 Standard Oil Co. v. United States.............. 591 Stark, Bauer Cooperage Co. v................... 604 Starr, Lackner v............................... 601 Steam Tug Panther, Derby v.................... 606 Steamship Coamo, United States v............... 220 Steele v. United States No. 1................. 498 Steele v. United States No. 2................. 505 Stein, et al. v. Tip Top Baking Co............. 226 Stevens v. Atchison, Topeka & S. F. Ry. Co...... 603 TABLE OF CASES REPORTED. xvn Page Stroud, Missouri Pac. R. R. v..........i......... 404 Superior Court of California, Brambini v....... 584 Swiss National Insurance Co. v. Miller et al... 42 Tan Pho v. Lichauco.... ’...................... 602 Tayloe v. United States....................... 576 Taylor, Indian Refining Co. v................. 575 Taylor v. Voss....................'............ 588 Texas, New Mexico v........................... 583 Texas, Oklahoma v............................. 7 Texas, Oklahoma v............................ 452 Texas, Oklahoma v............................ 580 Texas, Parker v................................ 604 Thompson Mfg. Co., Ches. & Ohio Ry. Co. v...... 588 Thornton v. United States...................... 589 Tiger v. Drumright ............................ 578 Tip Top Baking Co., Stein et al. v............. 226 Tobias v. United States....................... 593 Tod, Fink v.................................... 571 Tod, Kaplan v.................................. 229 Tod, Patton v.................................. 607 Tolibia & Co. v. S. S. Isla de Panay........... 260 Traylor Engineering & Mfg. Co. v. Worthington Pump & Mach. Co................................ 600 Union Pacific R. R. Co., Browne v.............. 255 Union Savings Bank & Trust Co., Bauer Cooperage Co. v.......................................... 604 United States v. Archibald McNeil & Sons Co.... 302 United States, Atchison, Topeka & S. F. Ry. Co. v... 591 United States, Bacon & Matheson Forge Co. v.... 585 United States, Bartlett & Kling v.............. 573 United States v. Bauch......................... 611 United States, Becher v........................ 602 United States, Birnbaum v................ .... j 602 United States v. Bd. of County Comm............ 587 United States, Brambini v...................... 584 42684°—25----II XVIII TABLE OF CASES REPORTED. Page United States, Brooks v............................ 432 United States, Brooks Co. v........................ 455 United States, Brownstein v....................... 600 United States v. Butterworth-Judson Co. et al......387 United States, Cairo, Truman & So. R. R. v......... 350 United States, Carroll et al v..................... 132 United States, Center v............................ 575 United States ex rel. Chestatee Pyrites & Chemical Co., Work v........................................ 185 United States, Chicago, M. & St. P. Ry. v.......... 403 United States, Cholskos v........................ 604 United States, Cooke v..............•.............. 517 United States v. Cornell S. S. Co.................. 281 United States v. Coxe.............................. 408 United States, College Point Boat Co. v............. 12 United States, Cullen v............................ 593 United States v. Daugherty......................... 590 United States v. Davidson.......................... 597 United States, Evans v............................ 595 United States, First Nat. Bank of Mobile v......... 576 United States, Garvey v............................ 604 United States v. Hamilton Michelson & Co........... 603 United States, Hammer v............................, 591 United States, Horowitz v.......................... 458 United States, Hunter v............................ 597 United States v. Kaufman........................... 408 United States, King v.............................. 593 United States v. Law............................... 608 United States v. Lorillard, P. Cq.................. 471 United States, Louisville & Nashville R. R. v..... 395 United States, Margolin v.......................... 588 United States v. McGovern.......................... 608 United States v. Archibald McNeil & Sons Co........ 302 United States, Merritt v........................... 338 United States v. Middleton & Co.................... 603 United States, Mitchell et al. v................... 341 TABLE OF CASES REPORTED. XIX Page United States, Moore, G. L. v...................... 599 United States, Moore E. N. v....................... 593 United States, Morse v.............................. 80 United States, Mullen v............................ 598 United States, Nahmeh v............................ 122 United States v. Naponiello.............5.......... 577 United States, Nyquist v........................... 606 United States, O’Shaughnessy v................. 610,611 United States, Pearson v........................... 423 United States, Patt v ...:......................... 598 United States, Read v.............................. 596 United States, St. Louis, K. & S. R. R. Co. v......346 United States, Sanford & Brooks Co. v.............. 455 United States, Shewan & Sons Inc. v................. 86 United States, Smale v............................. 602 United States, Standard Oil Co. v................... 76 United States, Standard Oil Co. v.................. 591 United States v. Steamship, Coamo.................. 220 United States, Steele, No. 1, v.................... 498 United States, Steele, No. 2, v................... 505 United States, Tayloe v........................... 576 United States, Thornton v......................... 589 United States, Tobias v........................... 593 United States, Waldeck v.......................... 595 United States v. Waterman........................ 611 United States, Wilmering v.....................'.... 605 United States ex rel Rives, Work v................. 175 United States Manufacturers Export Ass’n., Camden Fire Ins. Ass’n. v .......................... 606 United States Spruce Production Corp., Olson & Olson v........................................... 462 United States ‘Steel Corp, et al., Disconto-Gesell-schaft v . 22 Utah Copper Co., Salt Lake County v................ 610 Vasquez, Panama R. R. Co. v........................ 589 Voss, Taylor v..................................... 588 XX TABLE OF CASES REPORTED. Page Walbridge-Aldinger Co. v. Rudd................. 594 Waldeck v. United States....................... 595 Walker, Chapin v............................. 577 Wallace, Blundell, Executor v.................. 373 Wallace and Lancaster, Receivers v. McCarty.....427 Waterman, United States v...................... 611 Weiss, Davis v................................. 588 Wells, Admx. v. Bodkin......................... 474 Western & Atlantic R. R. v. Georgia Comm. et al.. 493 Westmoreland, Dodd v........................... 595 Whitten v. Florida............................. 608 Williams v. Christopher........................ 605 Wilmering v. United States..................... 605 Wingo v. Ozment................................ 609 Wolff Packing Co. v. Court of Industrial Relations of Kansas......................................... 552 Work, Santa Fe Pac. R. R. Co. v................ 511 Work v. United States ex rei. Chestatee Pyrites & Chemical Co................................... 185 Work v. United States ex rei. Rives............ 175 Worthington Pump & Mach. Co., Traylor Engineering & Mfg. Co., v.............................. 600 Yadkin R. R. Co. v. Sigmon..................... 577 Yeiser v. Dysart et al......................... 540 TABLE OF CASES Cited in Opinions Abrams v. United States, 250 U. S. 616 441 Adams v. Milwaukee, 228 U. S. 572 199 Adams v. Otterback, 15 How. 539 272 Adkins v. Children’s Hospital, 261 U. S. 525 541,566 Aetna Life Ins. Co. v. Dunken, 266 U. S. 389 358 Agnew v. Haymes, 141 Fed. 6.31 158 Alaska Smokeless Co. v. Lane, 250 U. S. 549 183,517 Alexander v. United States, 201 U. S. 117 111 Alexandria, The City of, 28 Fed. 202 274 Allen v. Commonwealth, 188 Mass. 59 346 Allen v. Smith, 173 U. S. 389 181 Alsberg v. United States, 285 Fed. 573 . 125 American Fur Co. v. United States, 2 Pet. 358 152 American Ry. Express Co. v. Caldwell, 244 U. S. 617 . 498 American Storage Co. v. Chicago, 211 U. S. 306 199 American Sugar Refining Co. v. Newman Grocery Co., 284 Fed. 835 237 Amos v. United States, 255 U. S. 313 148,170 Anderson v. Marten [1908] A. C. 334 78 Anderson County Comm’rs v. Beal, 113 U. S. 227 254 Anonymous (1674), Cases in Chancery, 238 110 Antelope, The, 12 Wheat. 546 87 Apollon, The, 9 Wheat. 362 159 Arizona v. Copper Queen Mining Co., 233 U. S. 87 317 Ash v. United States, 299 Fed. 277 159 Atchison, T. & S. F. Ry. v. Harold, 241 U. S. 371 273 Atlantic Coast Line R. R. v. Corporation Commission, 206 U. S. 1 332 Atlantic Works v. United States, 46 Ct. Clms. 57 341 Austin v. The Aidermen, 7 Wall. 694 450 Axtell v. United States, 286 Fed. 165 125 Baars & Co. v. Mitchell, 154 Fed. 322 400 Baillie v. Kell, 4 Bing. N. C. 638 16 Baker v. Baker, Eccles & Co., 242 U. S. 394 29 Ballinger v. Frost, 216 U. S. 240 184 Baltimore & Ohio R. R. v. United States, 261 U. S. 592 340 Baltimore & Ohio R. R. v. United States, 261 U. S. 385 340 Bank of America v. Whitney Central National Bank, 261 U. S. 171 335 Bank of Metropolis v. New England Bank, 1 How. 234 281 Barbee v. Weatherspoon, 88 N. C. 19 83 Barbour v. Georgia, 249 U. S. 454 195,197,201 Barbour v. State, 146 Ga. 667 203 Barnes v. Alexander, 232 U. S. 117 394 XXI XXII TABLE OF CASES CITED. Bartemeyer v. Iowa, 18 Wall. 129 194 Bartlett v. Smith, 11 M. & W. 483 511 Bartram v. Daimett (1676), Finch, 253 110 Beavers v. Haubert, 198 U. S. 77 82 Beer Co. v. Massachusetts, 97 U. S. 25 194 Begerow, In re, 136 Cal. 293 83 Benson v. Henkel, 198 U. S. 1 83 Benson v. Palmer, 41 App. D. C. 561 83 Bessette v. W. B. Conkey Co., 194 U. S. 324 111 Billings v. United States, 232 U. S. 261 451 Binderup v. Pathe Exchange, .263 U. S. 291 307,328 Blacklock v. Small, 127 U. S. 96 330,543 Blamberg Bros. v. United States, 260 U. S. 452 124 Blanset v. Cardin, 256 U. S. 319 376 Bluefield Co. v. Public Serv- ice Comm., 262 U. S. 679 364 Board of Water Supply, Mat- ter of, 211 N. Y. 174 346 Bodkin v. Edwards, 255 U. S. 221 587 Boom Co. v. Patterson, 98 U. S. 403 345 Bordeau v. McDowell, 256 U. S. 465 576 Boston Deep Sea Fishing & Ice Co. v. Ansell, L. R. 39 Ch. Div. 339 16 Bowditch v. Boston, 101 U. S. 16 254 Bowling v. Harrison, 6 How. 248 272 Boyd v. United States, 116 U. S. 616 147 Boyle v. Northwestern Na- tional Bank, 125 Wis. 498 395 Brainard v. Clapp, 10 Cush. 6 383 Branan v. Atlanta & West Point R. R. 108 Ga. 70 247 Brawley v. United States, 96 U. S.168 576 Brewer Oil Co. v. United States, 260 U. S. 77 587 Brezin, Re, 297 Fed. 300 415 Brolan v. United States, 236 U. S. 216 439 Brooks-Scanlon Co. v. Railroad Commission of Louisiana, 251 U. S. 396 333,568 Brown v. Alton Water Co., 222 U. S. 325 578 Brown v. Hitchcock, 173 U. S. 473 517 Brushaber v. Union Pacific R. R., 240 U. S. 1 451 Bryan v. Kennett, 113 U. S. 179 369 Buck, Re, P. U. R. 1923, E. 737 313 Buck v. Kuykendall, 267 U. S. 307 324,385 Bulkley v. Naumkeag Steam Cotton Co., 24 How. 386 274 Bullock v. Railroad Comm., 254 U. S. 513 568 Bunger v. State, 146 Ga. 672 203 Burke v. Southern Pacific R. R., 234 U. S. 669 402 Burnap v. United States, 252 U. S. 512 507 Butterworth v. Hoe, 112 U. S. 50 184 Calhoun v. Massie, 253 U. S. 170 541 Caminetti v. United States, 242 U. S. 470 437 Campbell v. United States, 266 U. S. 368 345 Campbell v. Wadsworth, 248 U. S. 169 356 Campbellsville Lumber Co. v. Hubbert, 112 Fed. 718 7 Carlo Poma, The, 255 U. S. 219 327 Carlsen v. Cooney, 123 Wash. 441 313 Carpenter v. Williams, 9 Wall. 785 358 Carpenter Steel Co. v. Norcross, 204 Fed. 537 16 Carroll v. United States, 267 U. S. 132 504 Central Trust Co. v. Garvan, 254 U. S. 554 59 TABLE OF CASES CITED. XXIII Champion Lumber Co. v. Fisher, 227 U. S. 445 430,584 Chappell v. United States. 160 U. S. 499 327,458 Chesapeake & Ohio Ry. v. Public Service Comm., 242 U. S. 603 332 Chicago v. Taylor, 125 U. S. 161 346 Chicago & Alton R. R. Co. v. Tranbarger, 238 U. S. 67 193 Chicago, B. & Q. Ry. v. Babcock, 204 U. S. 585 491 Chicago, B. & Q. Ry. v. United States, 220 U. S. 559 291 Chicago, etc. Ry. v. Minneapolis Civic Assn., 247 U. S. 490 337 Chicago Great Western R. R. Co. v. Basham, 249 U. S. 164 579 Chicago Great Western Ry. v. Kendall, 266 U. S. 94 485 Chicago & Northwestern R. R. Co. v. Ochs, 249 U. S. 416 496 Chicago, R. I. & Pac. Ry. v. Hardwick Elevator Co., 226 U. S. 426 408 Chicot County v. Sherwood, 148 U. S. 529 349 Chin Yow v. United States, 208 U. S. 8 229 Citizens’ Bank v. Cannon, 164 U. S. 319 330 Citizens’ Bank v. Opperman, 249 U. S. 448 579 Claassen v. United States, 142 U. S. 140 441 Clallam County v. United States, 263 U. S. 341 466 Clark, Ex parte, 208 Mo. 121 537 Clark Distilling Co. v. Western Maryland Ry., 242 U. S. 311 194,437 Clements v. Erlanger, 46 L. J. N. S. 375 116 Cleveland & Pittsburgh R. R. Co. v. Cleveland, 235 U. S. 50 573 Clough v. London & Northwestern Ry., L. R. 7 Exch. 26 16 Collins v. Loisel, 262 U. S. 426 85 Commercial Trust Co. v. Miller, 262 U. S. 51 59 Commissioner of Patents v. Whiteley, 4 Wall. 522 184 Commonwealth v. Carey, 12 Cush. 246 161 Commonwealth v. Dana, 2 Met. (Mass.) 329 150,503 Commonwealth v. Hamilton, 129 Mass. 479 85 Commonwealth v. Phelps, 209 Mass. 396 161 Commonwealth v. Street, 3 Pa. Dist. & Co. 783 158 Commonwealth v. Wright, 158 Mass. 149 165 Conley v. Mathieson Alkali Works, 190 U. S. 406 336 Connolly v. Union Sewer Pipe Co., 184 U. S. 540 252 Continental Wall Paper Co. v. Voight, 212 U. S. 227 252 Cooley v. Board of Wardens, 12 How. 299 119 Cornish v. United States, 299 Fed. 283 539 Cory v. Burr, 8 App. Cas. 393 78 Cotzhausen v. Nazro, 107 U. S. 215 152 Covell v. Heyman, 111 U. S. 176 82 Coyle v. Oklahoma, 221 U. S. 559 418 Crandall v. Nevada, 6 Wall. 35 314 Crane, v. Campbell, 245 U. S. 304 194,201 Crary v. Devlin, 154 U. S. 619 358 Creswill v. Knights of Pythias, 225 U. S. 246 358 Crowell v. M’Faddon, 8 Cr. 94 163 Crowley v. Christensen, 137 U. S. 86 194 Cummings v. National Bank, 101 U. S. 153 488 Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282 225 Dana, In re, 68 Fed. 886 84 XXIV TABLE OF CASES CITED. Davis v. Kennedy, 266 U. S. 147 577 Davis i). Wakelee, 156 U. S. 680 488 Davis v. Wolfe, 263 U. S. 239 291 Dawson v. Columbia Trust Co., 197 U. S. 178 543 Decatur v. Paulding, 14 Pet. 497 177 Delaney v. Plunkett, 146 Ga. 547 199,203 Delaware, etc. R. R. v. Converse, 139 U. S. 469 254 Delaware, Lackawanna & Western R. R. v. United States, 231 U. S. 363 401 Deming v. United States, 1 Ct. Clms. 190 461 Dillon v. O’Brien and Davis, 16 Cox. C. C. 245 158 Director General v. Kastenbaum, 263 U. S. 25 161 Di Rienzo v. Rodgers, 185 Fed. 334 230 Dorchy v. Kansas, 264 U. S. 286 . . 562,564 Dower v. Richards, 151 U. S. 658 358 Dovle v. London Guarantee Co., 204 U. S. 599 111 Dunlap v. Black, 128 U. S. 40 183 Dunman v. South Texas Lumber Co., 252 S. W. 274 239 Duplex v. Deering, 254 U. S. 465 210 Dustan v. McAndrew, 44 N. Y. 72 228 Earle v. Commonwealth, 180 . Mass. 579 346 Eberle v. Michigan, 232 U .S. 700 197 Egan v. Hart, 165 U. S. 188 358 Elk v. United States, 177 U. S.529 157,165 Elrod v. Moss, 278 Fed. 123 . 157,504 Enterprise Irrigation Dist. v. Canal Co., 243 U. S. 157 259 Equitable Life Assurance Society v. Brown, 213 U. S. 25 349 Erie R. R. Co. v. Purdy, 185 U. S. 148 585 Escanaba Co. v. Chicago, 107 U. S. 678 382 Essgee v. United States, 262 U. S. 151, 155 576 Ettor v. Tacoma, 228 U. S. 148 346 Evans v. Gore, 253 U. S. 245 450 Evans v. United States, 153 U. S. 608 441 Ewert v. Robinson, 289 Fed. 740 369 Ewing v. Burnet, 11 Pet. 41 237 Farmer v. First Trust Co., 246 Fed. 671 16 Farmers and Mechanics National Bank v. Wilkinson, 266 U. S. 503 578 Farrell v. O’Brien, 199 U. S. 89 574,587 Fauntleroy v. Lum, 210 U. S. 230 467 Federal Trade Commission v. American Tobacco Co., 264 U. S. 298 586 First National Bank of Gadsden v. Winchester, 119 Ala. 168 337 Flint v. Stone Tracy Co., 220 U. S. 107 451 Floyd Acceptances, The, 7 Wall. 666 1 392 Fore River Shipbuilding Co. v. Hagg, 219 U. S. 175 467 Forni v. United States, 3 Fed. (2d) 354 504 Fort Smith Light & Traction Company v. Bourland, 267 U. S. 330 497 Fox, In re, 51 Fed. 427 82 Francis v. McNeal, 228 U. S. 695 411 Frese v. Chicago, Burlington & Quincy R. R. Co., 263 U. S. 1 577 Freston, In re, 11 Q. B. D. 545 111 Fulwood v. Fulwood (1585), Toothill, 46 110 Gaines v. Thompson, 7 Wall. 347 183 Galban Lobo & Co. v. United States, 285 Fed. 665 125 Gardner v. Michigan, 199 U. S. 325 199,202 TABLE OF CASES CITED. XXV Garfield v. Goldsby, 211 ü. S. 249 184 Garland, Ex parte, 4 Wall. 333 120 Geddes v. Anaconda Mining Co., 254 U. S. 590 252 Gelston v. Hoyt, 3 Wheat. 246 163 George, The, 1 Mason, 24 161 Georgia Railroad v. Wright, 125 Ga. 589 489 German Alliance Ins. Co. v. Lewis, 233 U. S. 389 129,567 Getchell v. Page, 103 Me. 387 158 Gila Valley Ry. Co. v. Hall, 232 U. S. 94 511 Gloucester Ferry Co. v. Penn- sylvania, 114 U. S. 196 437 Gompers v. Bucks Stove & Range Co., 221 U. S. 418 111 Gompers v. United States, 233 U. S. 604 116 Goto v. Lane, 265 U. S. 393 575 Gouled v. United States, 255 U. S. 298 148,170 Great Northern Railway v. Merchants Elevator Company, 259 U. S. 285 497 Green v. Royal Arcanum, 206 N. Y. 591 551 Greene v. Henkel, 183 U. S. 249 83 Greene v. Louisville R. R. Co., 244 U. S. 499 489 Greene’s Case, 6 Appeal Cases, 657 111 Guarantee Co. v. Title Guar- anty Co., 224 U. S. 152 413 Gulf Oil Corp. v. Lewellyn, 248 U. S. 71 337 Hacker, In re, 73 Fed. 464 84 Hale v. Henkel, 201 U. S. 43 576 Hall v. Payne, 254 U. S. 343 183,517 Hallanan v. Eureka Pipe Line- Co., 261 U. S. 393 562 Hamilton v. Kentucky Dis- tilleries Co., 251 U. S. 146 197 Hamilton v. Rathbone, 175 U. S. 414 369 Hammer v. Dagenhart, 247 U. S. 251 438 Hammock v. Farmers’ Loan & Trust Co., 105 U. S. 77 237 Hammond v. Johnston, 142 U. S. 73 259 Hanley v. Kansas City Southern Ry., 187 U. S. 617 408 Hart Steel Co. v. Railroad Supply Co., 244 U. S. 294 337 Haseltine v. Bank, 183 U. S. 136 575 Hatch v. Oil Co., 100 U. S. 124 400 Hauselt v. Harrison, 105 U. S. 401 393 Heald v. District of Columbia, 259 U. S. 114 130 Henderson Bridge Co. v. Henderson City, 173 U. S. 592 358 Hendrick v. Maryland, 235 U. S. 610 315 Henfield’s Case, Fed. Case No. 6360 115 Henry v. Henkel, 235 U. S. 219 83 Hester v. United States, 265 U. S. 57 151 Hiawassee River Power Co. v. Carolina-Tennessee Power Co., 252 U. S. 341. 573 Hickey, Ex parte, 12 Miss. 751 119 Heitler v. United States, 260 U. S. 438 577 Higgins v. Anglo-Algerian S. S. Co., 248 Fed. 386 270,273 Hill v. United States, 149 U. S. 593 586 Hipolite Egg Co. v. United States, 220 U. S. 45 437 Hoffman v. McClelland, 264 U. S. 552 280,327 Hohorst, Petitioner, 150 U. S. 653 • 184 Hoke v. United States, 227 U. S. 308 437 Hollingsworth v. Duane, 12 Fed. Cas. 359 537 Horstman Co. v. United States, 257 U. S. 138 586 Houck v. State, 106 Oh. St. 195 159 XXVI TABLE OF CASES CITED. Houston Coal Co. v. United States, 262 U. S. 361 307 Houston & Texas Ry. v. United States, 234 U. S. 342 428,498 Howat v. Kansas, 258 U. S. 181 564 Hughes v. State, 145 Tenn. 544 157 Hulbert v. Chicago, 202 U. S. 275 573 Hurley v. Commission of Fisheries, 257 U. S. 223 316 Hurtado v. California, 110 U. S. 516 574 Hyatt v. Vincennes Bank, 113 U. S. 408 369 Illinois v. Economy Power Co., 234 U. S. 497 358 Illinois Central R. R. v. United States, 265 U. S. 209 398,401 Improvement Co. v. Munson, 14 Wall. 442 254 Indiana v. Kentucky, 136 U. S. 479 42 Ingersoll v. Coram, 211 U. S. 335 393 Insurance Co. v. Folsom, 18 Wall. 237 307 International Harvester Co. v. Kentucky, 234 U. S. 579 336 Interstate Commerce Comm. v. Humboldt S. S. Co., 224 U. S. 474 184 Interstate Land Co. v. Maxwell Land Grant Co., 139 U. S. 569 349 Interstate Motor Transit Co. v. Kuykendall, 284 Fed. 882 314 Ireland v. Woods, 246 U. S. 323 579 Isonomia, The, 285 Fed. 516 123 Jefferson v. Fink, 247 U. S. 288 . . 376 Jenkins v. Davies, 10 Ad. & El. N. S. 314 . 511 Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1 572, 574, 578, 579, 582, 583, 584, 585, 586. Jones v. United States, 1 Ct. Clms. 383 461 Joslin Mfg. Co. v. Providence, 262 U. S. 668 345 Kane v. New Jersey, 242 U. S. 160 314 Kansas City So. Ry. v. Albers Comm. Co., 223 U. S. 573 358 Kearney, Ex parte, 7 Wheat. 38 116 Keehn v. United States, 300 Fed. 493 510 Kelly, In re, 26 Fed. 852 85 Kendall v. United States, 12 Pet. 524 177 Keokuk & Hamilton Bridge Company v. Salm, 258 U. S. 122 486 King and Codrington v. Rodman (1630), Cro. Car. 198 110 Klebe v. United States, 263 U. S. 188 427,586 Kneeland v. Connally, 70 Ga. 424 158 Knowlton v. Moore, 178 U. S. 41 450 Knox v. Alwood, 228 Fed. 753 485 Kurtz v. Moffitt, 115 U. S. 487 157, 164 Kurtz v. State, 22 Fla. 36 85 Labor Board Case, 261 U. S. 72 210 Lake Erie & Western R. R. Co. v. Cameron, 249 U. S. 422 496 Lake Superior & Mississippi R. R. v. United States, 93 U. S. 442 403 Lambert v. United States, 282 Fed. 413 159 Lane v. Hoglund, 244 U. S. 174 184 Lang v. New York Cent. R. R., 255 U. S. 455 291 La Tourette v. McMaster, 248 U. S. 465 129 Laura, The, 114 U. S. 411 119 Law v. United States, 266 U. S. 494 307 Lawton v. Steele, 152 U. S. 133 199 Lemke v. Farmers Grain Co., 258 U. S. 50 226 TABLE OF CASES CITED. XXVII Levy Leasing Co. v. Siegel, 258 U. S. 242 240 Levy Leasing Co. v Siegel, 194 App. Div. 482 ' 241 Lewis v. United States, 92 U. S. 618 413 Litchfield v. Register and Receiver, 9 Wall. 575 183 Lithographic Co. v. Sarony, 111 U. S. 53 119 Locke v. United States, 7 Cr 339 • ‘ 161 London & Mediterranean Bank, In re, Wright’s Case, L. R. 7 Ch. App. 55 16 Lorde, In re (D. C.), 144 Fed. 320 468 Lottery Case, 188 U. S. 321 437 Louie v. United States, 254 U. S. 548 328 Louis, The, 2 Dodson 210 163 Louisiana v. Sauvinet, 24 La. Ann. 119 119 Louisville Cement Co. v. Interstate Commerce Comm,, 246 U. S. 638 184 Louisville & Nashville R. R. Co. v. Central Iron Co., 265 U. S. 59 397 Louisville & Nashville R. R. Co. v. Garrett, 231 U. S. 298 232 Louisville & Nashville R. R. Co. v. Greene, 244 U. S. 522 489 Louisville & Nashville R. R. Co. v. Layton, 243 U. S. 617 291 Louisville & Nashville R. R. Co. v. United States, 258 U. S. 374 402 Louisville & Nashville R. R. Co. v. United States, 267 U. S. 395. 404 Louisville & Nashville R. R. Co. v. Woodford, 234 U. S. 46 585 Lubriko Co. v. Wyman, 290 Fed. 12 16 Lumiere v. Mae Edna Wilder, Inc., 261 U. S. 174 336 Macleod, Matter of, 6 Jur. 461 116 Madigan In re (D. C.), 254 Fed. 221 468 Madisonville Traction Co. v. Saint Bernard Mining Co., 196 U. S. 239 6 Margiasso Ex parte (D. C.), 242 Fed. 990 468 McCarthy v. De Armit, 99 Pa. St. 63 161 McClure v. Township of Oxford, 94 U. S. 429 350 McCran v. Erie R. R., 95 N. J. Eq. 653 383 McCray v. United States, 195 U. S. 27 451 McCulloch v. Maryland, 4 Wheat. 316 450 McElwee v. Metropolitan Lumber Co., 69 Fed. 302 400 McLaren v. Fleischer, 256 U. S. 477 476 McMillan Contracting Co. v. Abernathy, 263 U. S. 438 327 McSherry v. Heimer, 132 Minn. 260 503 Menefee v. Frost, 123 Fed. 633 543 Meriwether v. Garrett, 102 U. S. 472 6 Metcalf v. Weed, 66 N. H. 176 503 Meyer v. Nebraska, 262 U. S. 390 566, 569 Michaelson v. United States, 266 U. S. 42 117 Michigan Public Utilities Comm. v. Duke, 266 U. S., 571 315 Middleton & Co. v. United States, 273 Fed. 199 125 Milam v. United States, 296 Fed. 629 159 Milburn, Ex parte, 9 Pet. 704 83 Milinari v. Maryland, 263 U. S. 685 576 Miller v. Kaliwerke Aschersleben Aktien-Gesellschaft, 283 Fed. 746 29 Milwaukee Electric Ry. v. Milwaukee, 252 U. S. 100 • 332 Minneapolis & St. Louis R. R. v. Gotschall, 244 U. S. 66 291 XXVIII TABLE OF CASES CITED. Missouri v. Iowa, 7 How. 660 40 Missouri & Kansas Interurban Ry. Co. v. Olathe, 222 U. S. 185 575 Missouri Pacific Ry. v. Lara-bee Flour Mills Co., 211 U. S. 612 315 Missouri Pacific Ry. v. Kansas, 216 U. S. 262 332 Missouri Pacific R. R. Co. v. Western Crawford Road Improvement District, 266 U. S. 187 587 Mitchell, Ex parte, 1 La. Ann. 413 84 Morgan v. United States, 14 Wall. 531 77 Moore v. Douglas, 230 Fed. 399 468 Morris & Essex R. R. v. Central R. R., 31 N. J. L. 205 383 Mugler v. Kansas, 123 U. S. 623 194,202 Mullee, In re, 7 Blatch. 23 119 Muller v. Globe & Rutgers Fire Ins. Co., 246 Fed. 759 78 Munn v. De Nemours, 3 Wash. C. C. 37 162 Muse v. Arlington Hotel Co., 168 U. S. 430 584 Mutual Life Insurance Company v. HÜ1,193 U. S. 551 562 Myers v. United States, 264 U. S. 95 117 National Bank v. Insurance Co., 104 U. S. 54 281,395 National Insurance Co. v. Wanberg, 260 U. S. 71 129 National Mahawie Bank v. Peck, 127 Mass. 298 395 National Paper & Type Co. v. Edwards, Collector, 292 Fed. 633 452 Neagle, In re, 135 U. S. 1 115,508 Ness v. Fisher, 223 U. S. 683 183,517 Nevitt, In re, 117 Fed. 448 119 New Jersey Foundry & Machine Co. v. United States, 49 Ct. Cis. 235 341 New York v. Sage, 239 U. S. 57 345 New York County Bank v. Massey, 192 U. S. 138 395 New York, N. H. & H. R. R. v. United States, 251 U. S. 123 402 New York, N. H. & H. R. R. v. United States, 258 U. S. 32 402 New York Tunnel Co., In re, 159 Fed. 688 468 Ng Fung Ho v. White, 259 U. S. 276 • 229 Nishimura Ekiu v. United States, 142 U. S. 651 230 Northern Pacific Ry. v. North Dakota, 236 U. S. 585 358 Northern Pacific Ry. v. Schoenfeldt, 123 Wash. 579 313 Northern Pacific Ry. v. Solum 247 U. S. 477 408 Northwestern Life Ins. Co. v. Riggs, 203 U. S. 243 129 Oelricks v. Ford, 23 How. 49 272 Ohio Valley Co. v. Ben Avon Borough, 253 U. S. 287 364 Oklahoma v. Texas, 260 U. S. 606 • ■ 42 Oliver American Trading Co. v. Mexico, 264 U. S. 440 328 Olsen v. Smith, 195 U. S. 332 326 Oregon-Washington R. R. v. United States, 255 U. S. 339 402 O’Shea v. O’Shea and Parnell, 15 P. & D. 59 111 Otis v. Watkins, 9 Cr. 339 163 Pacific Ins. Co. v. Soule, 7 Wall. 433 450 Packard v. Banton, 264 U. S. 140 314 Paine Lumber Co. v Neal, 244 U. S. 459 * 252 Park v. United States, 294 Fed. 776 159 Parker, Ex parte, 120 U. S. 737 ■ 184 Parker, Petitioner, 131 U. S. 221 184 Patton v. Tod, 297 Fed. 385 230 Paul v. Virginia, 8 Wall. 168 46,71 Pearson v. United States, 267 U. S. 423 586 TABLE OF CASES CITED. xxix Peck & Co. v. Lowe, 247 U. S. 165 447 Peckham v. Henkel, 216 U. S. 483 82 Pennsylvania Lumbermen’s Mutual Fire Ins. Co. v. Meyer, 197 U. S. 407 335 Pennsylvania R. R. v. Labor Board, 261 U. S. 72 205 People’s Tobacco Co. v. American Tobacco Co., 246 U. S. 79 336 Peterson v. Chicago, R. I. & Pac. Ry., 205 U. S. 364 336 Pettibone v. United States, 148 U. S. 197 210 Phila. & Read. Ry. v. McKibben, 243 U. S. 264 335 Phipps v. Earl of Angelsea (1721), 1 Peere Williams, 696 110 Piedmont Power & Light Co. v. Graham, 253 U. S. 193 575, 587 Pierce v. Creecy, 210 U. S. 387 83 Pierce v. United States, 252 U. S. 239 439, 441 Pierce Oil Corporation v. Hopkins, 264 U. S. 137 315 Pine River Co. v. United States, 186 U. S. 279 87 Pinkerton v. Verberg, 78 Mich. 573 165 Pittsburgh, etc. Ry. v. Fink, 250 U. S. 577 397 Pleasants v. Fant, 22 Wall. 116 254 Pollard, In re, L. R. 2 P. C. 106 116 Prentis v. Atlantic Coast Line Company, 211 U. S. 210 487 Price Fire & Water Proofing Co. v. United States, 261 U. S. 179 340 Purity Extract Co. v. Lynch, 226 U. S. 192 . 194, 203 Pusey & Jones Co. v. Hansen, 261 U. S. 491 6 Putnam, In re (D. C.), 193 Fed. 464 ¿68 Queen v. Bernardo, 23 Q. B. D. 305 111 Queen Insurance Co. v. Globe & Rutgers Fire Ins. Co., 263 U. S. 487 77 Railroad Commission v. Eastern Texas R. R., 264 U. S. 79 333 Railroad Commission v. L. & N. R. R. Co., 148 Ga. 442 496 Railroad Commission v. Mobile & Ohio R. R., 244 U. S. 388 332 Railroad Commission v. Southern Pacific Co., 264 U. S. 331 497 Railway Companies v. Keokuk Bridge Co., 131 U. S. 371 383 Raine v. United States, 299 Fed. 407 510 Ramsey v. Tacoma Land Co., 196 U. S. 360 71 Randall v. Brigham, 7 Wall. 523 536 Randall v. Howard, 2 Black, 585 350 Reduction Co. v. Sanitary Works, 199 U. S. 306 199 Reid v, Colorado, 187 U. S. 137 437 Rex v. Buckenham (1665), 1 Keble 751 110 Richards v. Washington Terminal Co., 233 U. S. 546’ 346 Richmond County v. Steed, 150 Ga. 229 488 Riddle v. Dyche, 262 U. S. 333 575 Riverside Oil Co. v. Hitchcock, 190 U. S. 316 183,517 Road Imp. Dist. v. St. Louis Southwestern Ry., 257 U. 8. 547 6 Roberts v. United States, 176 U. S. 221 184 Robertson v. Baldwin, 165 U. S. 275 116 Rogers v. Hennepin County, 240 U. S. 184 358 Rohan v. Sawin, 5 Cush. 281 157,161 Rose v. State, 171 Ind. 662 503 XXX TABLE OF CASES CITED. Roth v. National Automobile Mutual Casualty Co., 202 N. Y. App. 667 130 Rothlisberger v. United States, 289 Fed. 72 503 Ruppert v. Caffey, 251 U. S. 264 197 Russell Motor Car Co. v. United States, 261 U. S. 514 15 Rodd v. Verage, 177 Wis. 295 119 St. Louis & S. F. R. R. v. Conarty, 238 U. S. 243 291 St. Louis Co. v. Prendergast Co., 260 U. S. 469 317 St Louis, I. M. & So. Ry. v. Taylor, 210 U. S. 281 291 St. Louis, K. & S. R. R. Co. v. United States, 267 U. S. 346 351,352 St. Louis S. W. Ry. v. Alexander, 227 U. S. 218 335 Salem Trust Co. v. Manufacturers’ Finance Co., 264 U. S 182 543 Salinger v. Loisel, 265 U. S. 224 85 Santowsky v. McKay, 249 Fed. 51 485 Savin, Petitioner, 131 U. S. 267 535,537 Schall v. Camors, 251 U. S. 239 411,471 Schich v. United States, 195 U. S. 65 117 Schierling v. United States, 23 Ct. Cis. 361 341 Schlosser v. Hemphill, 198 U. S. 173 575 Schmidt v. Department of Public Works, 123 Wash. 705 313 Schreiber v. Lateward, 2 Dick. 592 116 Schuyler National Bank v. Bollong, 150 U. S. 85 585 Scow 6-S, The, 250 U. S. 269 222 Selo ver, Bates & Co. v. Walsh, 226 U. S. 112 46 Sharp v. State, 102 Tenn. 9 119 Sharp v. United States, 191 U. S. 341 345 Shields v. Barrow, 17 How. 130 543 Silverthorne Lumber Co. v. United States, 251 U. S. 385 148, 170 Slater v. Savannah Sugar Refining Corp., 28 Ga. App. 280 251 Small Co. v. American Sugar Ref. Co., 267 U. S. 233 253 Smith v. Apple, 264 U. S. 274 327,328 Snyder v. United States, 285 Fed. 1 159,168 Southern Ry. v. Reid, 222 U. S. 424 408 Southwestern Tel. Co. v. Public Service Comm., 262 U. S. 276 364 Spalding & Bros. v. Edwards, 262 U. S. 66 226 Special Reference from Bahama Islands, In the matter of, App. Cas. (1893) 138 111 Speidel v. Henrici, 120 U. S. 377 350 Sperry Oil Co. v. Chisholm, 264 U. S. 488 418 Stacey v. Emery, 97 U. S. 642 155, 161 Stadelman v. Miner, 246 U. S. 544 579 Standard Chemicals, etc. Corp. v. Waugh Chemical Corp., 231 N. Y. 51 239 Stanley v. Schwalby, 162 U. S. 255 87 Stansell v. Levee Board, 13 Fed. 846 7 State v. Howat, 116 Kan. 412 565 State ex rel. v. Howat, 109 Kan. 376 564,565 State v. Magee Publishing Co., 29 N. Mex. 119 State v. Western & Atlantic R. R. Co., 136 Ga. 619 488 Steel v. Railroad, 165 Mo. App. 311 408 Steen v. Modern Woodmen of America, 296 Ill. 104 550 Stewart, In re, 118 La. 827 537 TABLE OF CASES CITED. xxxi Stoehr v. Wallace, 255 U. S. 239 59 Strassburger, In re, 4 Woods 557 413 Stuart v. Laird, 1 Cranch, 299 119 Studley v. Boylston Bank, 229 U. S. 523 395 Supervisors v. Rogers, 7 Wall. 175 7 Supreme Council of the Royal Arcanum v. Green, 237 U. S. 531 551 Sutton v. United States, 256 U. S. 575 341 Sutton v. United States, 289 Fed. 488 504 Taylor v. Goodrich, 25 Tex. Civ. App. 109 119 Taylor v. L. & N. R. R. Co., 88 Fed. 350 489 Taylor v. Parker, 235 U. S. 42 . 375 Taylor v. United States, 3 How. 197 163 Taylor & Sons v. Julius Levin Co., 274 Fed. 275 . 16 Telluride Power Co. v. Rio Grande, etc. Ry., 175 U. S. 639 358 Tempel v. United States, 248 U. S. 121 341,345,586 Terminal Taxicab Co. v. District of Columbia, 241 U. S. 252 567 Terry, Ex parte, 128 U. S. 289 534,535 Texas & Pacific Ry. v. Rigsby, 241 U. S. 33 291 Texas Co. v. Brown, 258 U. S. 466 575 Thomas of Chartham v. Benet of Stamford (1313), 24 Selden Society, 185 110 Thompson, The, 3 Wall. 155 161 Toledo Company v. United States, 237 Fed. 986 539 Toop v. Ulysses Land Co., 237 U. S. 580 574,575,587 Treat v. White, 181 U. S. 264 450 Trinidad Asphalt Mfg. Co. v. Trinidad Asphalt Refining Co., 119 Fed. 134 15 Truax v. Corrigan, 257 U. S. 312 358 Tucker v. Seaman, 17 How. 225 183 Tynan v. United States, 297 Fed. 177 504 Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113 451 Union Lime Co. v. C. & N. W. Ry. Co., 233 U. S. 211 496 Union Pacific Ry. v. Chicago, etc. Ry., 163 U. S. 564 382 Union Pacific R. R. Co. v. • Weld County, 247 U. S. 282 488 Union Stock Yards Bank v. Gillespie, 137 U. S. 411 280,395 Union Tool Co. v. Wilson, 259 U. S. 107 ' 111 Union Trust Co. v. Westhus, 228 U. S. 519 578 United States v. Adams, 9 Wall. 554 458 United States v. Alexander, 148 U. S. 186 346 United States v. American Brewing Company, 296 Fed. 772 510 United States v. Ames, 99 U. S. 35 349 United States v. Andrews, 207 U. S. 229 400 United States v. Atlantic Dredging Co., 253 U. S. 1 456 United States v. Babcock, 250 U. S. 328 183 United States v. Biwabik Mining Co., 247 U. S. 116 369,371,373 United States v. Borkowski, 268 Fed. 408 . 503 United States v. Child & Co., 12 Wall. 232 344, 352 United States v. Chung Shee, 71 Fed. 277 85 United States v. Cohen Grocery Co., 255 U. S. 81 238 United States v. Coolidge, 1 Gall. 488 114 United States v. Cramp & Sons Co., 206 U. S. 118 349 United States v. Evans, Crabbe 60, 25 Fed. Cas. 1033 413 XXXII TABLE OF CASES CITED. United States v. Great Falls Mfg. Co., 112 U. S. 645 344 United States v. Greene, 100 Fed. 941 83 United States v. Haas, 167 Fed. 211 85 United States v Hack, 8 Pet. 271 ’ 412 United States v. Harris, 177 U. S. 305 164 United States v. Hendee, 124 U. S. 309 507 United States v. Herron, 20 Wall. 251 412 United States v. Hudson, 7 Or. 32 114 United States v. Investment Co., 264 U. S. 206 41 United States v. Isham, 17 WaU. 496 21 United States v. Jahn, 155 U. S. 109 327 United States v. Ju Toy, 198 U. S. 253 230 United States v. Kaplan, 286 Fed. 963 156 United States v. KeUer, 288 Fed. 204 510 United States v. Lehigh Valley R. R. Co., 254 U. S. 255 337 United States v Lynch, 137 U. S. 280 ' . 584 United States v. Marrin, 170 Fed. 476 82 United States v. Mouat, 124 U. S. 303 507 United States v. New River Co., 265 U. S. 533 407 United States v. New River Collieries Co., 262 U S. 341 301 United States v. New York, 160 U. S. 598 187 United States v. 1960 Bags of Coffee, 8 Cr. 398 163 United States v. North American Co., 253 U. S. 330 345 United States v. Northwestern Express Co., 164 U. S. 686 46,71 United States 4?. O’Connor, 294 Fed. 584 510 United States v. One Black Horse, 129 Fed. 167 152 United States v. Pacific R. R., 120 U. S. 227 199 United States v. Pridgeon, 153 U. S. 48 577 United States v. Purcell Envelope Co., 249 U. S. 313 14 United States v. Realty Co., 163 U. S. 427 181,346 United States v. Reddin, 193 Fed. 798 84 United States v. Ringgold, 8 Pet. 150 87 United States v. Schurz, 102 U. S. 378 184 United States v. Shea, 152 U. S. 178 286 United States v. Smith, 124 U. S. 525 507 United States v. Spearin, 248 U. S. 132 456 United States v. Speed, 8 Wall. 77 14 United States v. State Investment Co., 264 U. S. 206 41 United States v. Stratton, 88 Fed. 54 341 United States v. Syrek, 290 U. S. 820 . 510 United States v. Trans-Missouri Freight Ass’n, 166 U. S. 290 567 United States v. Wilson, 7 Pet. 150 109 Van Brocklen v. Smeallie, 140 N. Y. 70 228 Vandalia R. R. v. Public Service Comm., 242 U. S. 255 315 Veazie Bank v. Fenno, 8 Wall. 533 450 Viglotti v. Pennsylvania, 258 U. S. 403 576 Von Baumbach v. Sargent Land Co., 242 U. S. 503 371 373 Walker v. Brown, 165 U. S. 654 393 Wall v. Parrot Silver & Copr per Co., 244 U. S. 407 316 Washington v. Miller, 235 U S 422 355 Webb v. Buckalew, 82 N. Y. 555 485 TABLE OF CASES CITED. XXXIII Weber v. Freed, 239 U. S. 325 437 Weeds, Inc. v. United States, 255 U. S. 109 238 Weeks v. United States, 232 U. S. 383 147,158, 168, 170 Weiss v. Mohawk Mining Co., 264 Fed. 502 371 Wellesley v. Duke of Beaufort, 2 Russell & Mylne, 639 111, 116 Wells, Ex parte, 18 How. 307 109 Western Turf Association v. Greenberg, 204 U. S. 359 46 Western Union Tel. Co. v. Polhemus, 178 Fed. 904 383 Western Union Tel. Co. v. Speight, 254 U. S. 17 408 Wetmore v. Markoe, 196 U. S. 68 470 Wheeler v. United States, 226 U. S. 478 576 Whitfield v. Aetna Life Ins. Co., 205 U. S. 489 129 Wilder Manufacturiing Co. v. Com Products Co., 236 U. S. 165 252 Willard Co. v. United States, 262 U. S. 489 576 Williams Cooperage Co. v. Schofield, 115 Fed. 119 15 42684°—25--------in Wilson v. Ill. So. Ry., 263 U. S. 574 488 Wilson v. United States, 11 Ct. Cis. 513 461 Wilson v. United States, 221 U. S. 361 576 Wilson & Co. v. Smith, 3 How. 763 281 Willson v. Black Bird Creek Marsh Co., 2 Pet. 245 381 Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 522 541,564 Wood v. United States, 16 Pet. 342 163 Work v. McAlester, 262 U. S. 200 183 Work v. Mosier, 261 U. S. 352 183 Work v. United States, ex rel. Rives, 267 U. S. 175 186 Wright-Blodgett Co. v. United States, 236 U. S. 397 587 Yazoo & Mississippi Valley R. R. v. Clarksdale, 257 U. S. 10 29 Zartarian v. Billings, 204 U. S. 170 230 Zinsmeister v. Rock Island Canning Co., 145 Ky. 25 228 TABLE OF STATUTES Cited in Opinions 1789, March 2, c. 22, 1 Stat. 1866, July 27, c. 278, 14 Stat. 627 ........................ 166 292......................... 514 1789, July 31, c. 5, 1 Stat. 1867, Mar. 2, c. 167, 14 Stat. 29 ......................... 150 457 ......................... 34 1790, Aug. 4, c. 35, 1 Stat. 1869, Apr. 10, c. 24, 16 Stat. 145 ...................... 167 45 ......................... 398 § § 48-51.................... 151 1871, Mar. 3, c. 123, 16 Stat. 1793, Feb. 18, c. 8, 1 Stat. 580 ..................... 398 305, § 27.............. 151 1874, June 22, c. 400, 18 Stat. 1799, March 2, c. 20, 1 Stat. 194................... 514,515 627, § 65 412,413 1875, Mar. 3, c. 139, 18 Stat. 1799, March 2, c. 22, 1 Stat. 474.................. 33 627, § § 68-71............ 151 1875j 3> c‘ Wi/^‘¿¿at 1815, March 3, c. 94, 3 Stat. 50g 398 23 i................ . .151, 167 1876> ^ug. 1,19 Stat.' 665 ’ ’’ 35 1816, Apr. 27, c. 110, 3 Stat. 1879j Mar c 125j 20 Stat. 315......................... 152 347 § 472 1822, May 6, c. 58, 3 Stat. 1880, May 14,”c’89,’21 Stat. 682 ........................ 152 14i § 2................... 477 1834, June 30, c. 161, 4 Stat. 1882 Aug 5 c 390 22 gt t 729, § 20................ 152 26^ & 403 1850, September 9, c. 49, 9 1884, ¿¡ar c g> 2'3 g^’^' 315 ,0=;™ iV ’ * V/ W ’¿7 V 1887, Feb. 4, c. 104, 24 Stat. 1856, May 17, c. 31, 11 Stat. (see ’Inters^te Com_ 1856,’ June 3, c.’41,’ ii Stat. 1 A May 2, c. 182, 26 Stat. 1861, February 28, c. 59, 12 S 61................. 354 Stat 172 34 1890, July 2, c. 647, 26 Stat. 1862, July l,’c.‘ 120,’12 Stat. 209 (Sherman Act)....... 251 489, § 3................. 516 1892, July 26, c. 251, 27 Stat. 1864, May ’ 12,’ c.’ 84, ’ 13 Stat. 270 ................... 477 73, § 3.................. 403 1893, Mar. 2, c. 196, 27 Stat. 1865, Jan. 30, 13 Stat. 567.. 516 531 (Safety Applicance 1865, Feb. 28, c. 67, 13 Stat. Act)............... 289 441 .......................... 152 § 2................... 290 1866, July 4, c. 168, 14 Stat. 1893, Feb. 13, c. 105, 27 Stat. 88 , § 3................. 404 445 (Harter Act).......267 1866, July 18, c. 201, 14 Stat. § 4 .............. 272,274 178 .......................... 152 § 5 .................. 273 XXXV XXXVI TABLE OF STATUTES CITED. 1894, May 4, c. 68, 28 Stat. 71............................417 1898, July 1, c. 541, 30 Stat. 544, § 63a....................468 1899, Mar. 3, c. 429, 30 Stat. 1253, § 174.................. 153 1900, June 6, c. 813, 31 Stat. 672, § 6......................417 1902, June 17, c. 1093, 32 Stat. 388 ................... 475 1902, June 30, c. 1323, 32 Stat. 500 ................... 357 § 6............................ 354 1902, July 1, c. 1351, 32 Stat. RA 1902, juiy'i,’c.’1362,’32 Stat. 641.......................... 374 1903, Feb. 5, c. 487, 32 Stat. 797 (see Bankruptcy Act) § 5........................ 469 1904, Apr. 28, c. 1824, 33 Stat. 573, § 2............... 376 1906, Mar. 23, c. 1130, 34 • Stat. 84.................. 379 1906, Apr. 26, c. 1876, 34 Stat. 137, § 23.......... 375,376 1906, June 16, c. 3335, 34 Stat, 267, §§6,7,8... 417 § 8.........................421 1907, Feb. 20, c. 1134, 34 Stat. 898, § 20.............. 230 1907, Mar. 2, c. 2534, 34 Stat. 1229, § 5.............. 230 1907, Nov. 16, 35 Stat. pt. 2, p. 2160......................419 1908, Apr. 22, c. 149, 35 Stat. 65 (Employers’ Liability Act)............... 289 1909, Aug. 5, c. 6, 36 Stat. 11, § 38........................ 371 1910, Mar. 26, c. 128, 36 Stat. 263 ................... 230 1910, Apr. 14, c. 160, 36 Stat. 298 (see Safety Appli- ance Act).................... 289 § 4........................ 290 1910, June 20, c. 310, 36 Stat. 557..................... 33 1912, Jan. 6, 37 Stat. 1723.. 38 1913, Feb. 14, c. 55, 37 Stat. 678.......................... 377 1913, Mar. 4, c. 166, 37 Stat. 1016..........................414 1914, Sept. 2, c. 293, 38 Stat. 711 (see War Risk Insurance Act) § 5.......................... 77 1916, July 11, c. 241, 39 Stat. 355.......................... 314 1916, Aug. 9, c. 301, 39 Stat. 441 (see Interstate Commerce Acts)...................... 429 1916, Aug. 29, c. 415, 39 Stat. iSR 95R 1916, Aug.’ 29, c. 418,’ 39 ~ Stat. 619..................... 348 1916, Sept. 6, c. 448, 39 Stat. 726, § 2 .................... 572, 573, 574, 578, 579, 582, 583, 584, 585, 586. 1916, Sept. 8, c. 463, 39 Stat. 756, §§ 2, 10, 12 (a).. 367 § 12 (a)..............369 1917, Feb. 5, c. 29, 39 Stat. 874, § 10.............221 § 19........................ 230 §§ 35, 36............ 222 1917, Feb. 5, c. 29, 39 Stat. 874, § 19......................230 1917, Mar. 2, c. 146, 39 Stat. 969 153 1917, Mar. 2,' c. 153, 39 Stat. 999 (see Bankruptcy Act). 469 1917, Apr. 6, c. 1, 40 Stat. 1.. 348 1917, June 15, c. 29, 40 Stat. 182............................... 15, 17 1917, June 15, c. 30, 40 Stat. 217.......................... 501 § 6................... 506 1917, Aug. 10, c. 53, 40 Stat. 276 (see Lever Act)...... 237, 252, 299, 305 1917, Oct. 3, c. 63, 40 Stat. 300, § 400 ............... 472 1917, Oct. 6, c. 79, 40 Stat. 345 ...... 342 § 5................... 392 1917, Oct. 6, c. 106, 40 Stat. 411 § 2 43,44,46,49,50 1917, Oct. 16, 40 Stat. 1707 343 1917, Dec. 7, c. 1, 40 Stat. 429 .......................... 348 1917, Dec. 14, 40 Stat. 1731. 343 1918, Mar. 21, c. 25, 40 Stat. 451 ...... 303 § 3................... 348 TABLE OF STATUTES CITED. XXXVII 1919, Feb. 24, c. 18, 40 Stat. 1057 ...................... 20 § 218 (a).............411 § 233 (b)............ 448 §§ 700, 702 ................ 472 § 1100....................... 20 § 1310 (c).................. 473 1919, Feb. 28, c. 69, 40 Stat. 1189........................314 1919, Mar. 2, c. 94, 40 Stat. 1272 (see Dent Act) 339, 466 § 5................ 176, 186, 187 1919, Mar. 3, c. 98, 40 Stat. 1302, § 2...................425 1919, July 11, c. 6, 41 Stat. 35 ................... 47, 60, 69 1919, Aug. 8, c. 42, 41 Stat. 277 ....................... 379 1919, Oct. 22, c. 80, 41 Stat. 297 ....................... 237 1919, Oct. 28, c. 85, 41 Stat. 305 (Prohibition Act) 163, 305 § 22........................ 107 § 25........... 143, 159, 500, 507 § 26. . 144, 154, 155, 156, 159 § 28........................ 155 §29......................... 154 1919, Oct. 29, c. 89, 41 Stat. 324 (Motor Vehicle Theft Act)..............435 §§ 2, 3, 4, 5................436 1920, Feb. 28, c. 91, 41 Stat. 456 (see Transportation Act)........... 205, 207, 208, 209, 210, 218, 219, 300, 304, 306, 329 § 402 ..................... 4^97 § 405 ................ 407 1920, Mar. 9, c. 95, 41 Stat. 525 ...................... 87,123 § 2 124,125,126 § 3..................... 124 1920, June 5, c. 241, 41 Stat. 977 ...................... 44,45 § 9........................ 49 1921, Feb. 15, c. 47, 41 Stat. 1099 ...................... 379 1922, July 1, c. 277, 42 Stat. 822 ....................... 380 1921, July 2, c. 40, 42 Stat. 105 ........................ 44,68 § 5............................ 48 1921, Aug. 23, c. 77, 42 Stat. 174 ........................ 380 1921, Nov. 9, c. 119, 42 Stat . 212........................* 314 1921, Nov. 23, c. 134, 42 Stat. 222 .................. 167 § 6........................144,510 1921, Nov. 23, c. 136, 42 Stat. 227, §§ 217, 217 (a), 232-............ 448 § 233 .................... 448,449 1921, Nov. 23, c. 137, 42 Stat. 322, §5............180,181,182 1922, Sept. 14, c. 305, 42 Stat. 837 .................. 327,577 1923, Mar 4, c. 285, 42 Stat. 1511 ...".................48,55 Constitution. See index at end of volume. Revised Statutes: § 649 306 § 700 .................... 306 § 725 .................... 535 § 780 .................... 508 § 970 ................ 155,164 § 1014................ 81, 83, 85 § 2140........... 152, 153, 154 § 2172 ................... 230 § 2630 ................... 508 § 3059 ................... 153 § 3061 .............. 152, 154 § 3148 ................... 508 § 3186.................... 414 § 3386 ................... 472 § 3394 ................... 472 § 3462 ................... 509 § 3466 .................. 413 § 3648 ................... 392 § 3964 ................... 315 § 9985 ................... 407 Bankruptcy Act........... 130 § 1 (11)..............469 § 1 (15)............. 469 § 3b................. 470 § 17 ............ 469,470 § 28................. 414 § 63a.................468 § 63a (1)........ 469,470 § 63b................ 471 § 64a................ 411 xxxviii TABLE OF STATUTES CITED. Criminal Code. Judicial Code—Continued. § 338 ...................... 577 § 242.... 14,340,343,456 Dent Act............. 339, 466, 467 § 247 ................ 487 § 1 .................... 340,341 § 250 ... 43,176,186,515 §§2,3,4..................... 178 § 266 ........... 314,494 § 5... 176, 178, 180, 186, 187 § 268 ............... 535 Employers’ Liability Act... 289, Lever Act 237, 299, 304 291,292 §§ 4, 5, 6 . 238,252 Espionage Act.............. 510 § I®.....303, 305, 306, 307 Interstate Commerce Acts... 429 o - § ^5 ........... • ...306 g i qQO Safety Appliance Act......289 § (1) (4) (6) '(id)' ' §§ 2, 4.............. 290 5 (11) (12), (H).' . 407 German Art.............. 251 «¿in 7107 Trading with Enemy Act. |iAij"':::::::::::i4OT §2-..................43.« Judicial Code. | ................. | 94.................... 99»’ 9g? Transportation Act...... 205, § ............. ’=00 207, 208, 209, 210, 218, 1 ,00...................219, 300, 329 ! .........LAI § 206a....... 301,304,306 fl®................. 424,340 459 | .............’2n;216 8 324' vn '407 430 379’ S02> 303> 304' 305> 373 111’ W8 ™ Sq 306, 307a................................ 211 6®’ 584 585 ¿6 ’ P 308’ 309 ............ 212 8 93R ’ ’ W ^ 397 § 310’ 3U> 312....... 216 S 238.........307,312,327, § 313................ 213 334,435,467,499,506 Tucker Act............. 340,345 § 241................... 381,475 War Risk Insurance Act, § 5. 77 (B) Statutes of the States and Territories Arkansas. Idaho. 1919, Act. No. 322....... 5 1915, Session Laws c. 11. 201 1920, Act. No. 45........ 5 Kansas. Colorado. 1920, Laws c. 29 (Indus- 1901, Laws c. 37........ 36 trial Relations Act).. 559, -o 560, 561 •ion? t qi mi Maryland. 1907, Laws, page 81.... 191 1099 T „„„ „ 4m 2 A ono 1910’, Acts o£ix 22......... 484 Massachusetts^ 401 § ''' 323 1910, Civil Code § 4317. 488 i^ , n , 1910, Code § 2664...... 496 ^arq1? Resolves’ 1914, Park’s Ann. Code i«Sr TJ «h’p«;i" ' ’ 346 §§ 1002, 1002a, 18p64^te d Resolves’ 1003, 1004 .. 489 1898 Acts'and Resolves’, P%rkiSi C° e Am . c. 551................................. 346 § 1116k.........491 Missouri. 1915, Nov. 17 § 2...... 191 1919, Revised Statutes § 20..... 192 §§ 9985, 9990....... 405 1915, p. 77............ 199 Nebraska. 1917, March 28 ... 192,201 1922, Compiled Stats. 1918, Acts of, p. 232.... 485 § 3031............. 540 TABLE OF STATUTES CITED. xxxix New Jersey. Railroad Acts, § 16..........383 1860, Laws, c. 64... 379,382 1914, Laws, c. 123..... 379 1914, Laws, c. 123, § 4.. 385, 386 1915, Laws, c. 242, §§ 5, 13 .......... 379,385 1921, Laws, c. 151...........380 1922, Laws, c. 9.............380 New York. 1918, Laws, c. 182.......... 127 1921, Laws, c. 154 ......... 380 1922, Laws, c. 43 .......... 380 Oklahoma. 1907-8, Laws, c. 49, art. 2, p. 484........ 419 1907-8, Laws, c. 49, art. 4, p. 490...... 419 Oklahoma—Continued. 1909, Laws, c. 28, art. 1, p. 440 .............. 419 1909, Laws, c. 28, art. 2, p. 448 .............. 419 1910, Revised Laws, § 8341........... 374,376 1917, Laws, c. 253, p. 462 ....................... 419 1921, Comp. Stats. § 11224.............. 374 Texas. Revised Statutes, Art. 708.................... 429,430 Washington. 1921, Laws, § 4 c. 111... 312 315,316 CASES ADJUDGED IN THE SUPEEME COUET OF THE UNITED STATES AT OCTOBER TERM, 1924. GUARDIAN SAVINGS & TRUST COMPANY, TRUSTEE, v. ROAD IMPROVEMENT DISTRICT NO. 7 OF POINSETT COUNTY, ARKANSAS. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 389. Argued January 8, 1925.—Decided January 19, 1925. When state legislation has authorized and confirmed assessments of benefits on lands of a special improvement district and the mortgaging of these taxes as security for bonds to be sold to the public, and has provided in terms for collection of the taxes through a receiver to be appointed by a state court to pay the bonds in case of default, and the bonds are bought by the public upon this assurance, the power thus conferred upon the state court may be exercised by the federal District Court, in a suit to foreclose the mortgage in which jurisdiction otherwise exists through diversity of citizenship. P. 6. 298 Fed. 272, reversed. Certiorari to a decree of the Circuit Court of Appeals which reversed a decree of the District Court and directed that the bill be dismissed. The decree of the District Court was made in a suit brought by a trustee for bondholders, alleging diversity of citizenship, against a road improvement district, to foreclose a mortgage covering the assets of the district, including assessments for benefits already made and confirmed against the lands of the district. The decree directed a receiver to collect these taxes to-the extent necessary to pay outstanding bonds and coupons. 42684°—25--1 1 2 OCTOBER TERM, 1924. Argument for Petitioner. 267 U. S. Mr. G. B. Rose, with whom Mr. D. H. Cantrell, Mr. J. F. Loughborough and Mr. A. W. Dobyns were on the briefs, for petitioner. The question is whether the statute creates a substantive right, or whether it deals merely with a remedy. If a substantive right is given, it will be enforced in the federal courts, according to the practice established in those tribunals. If only a remedy is given, unknown to federal jurisdiction, that remedy must be sought in the state courts. Along with every mortgage there goes the right to the appointment of a receiver, where that course is essential to the protection of the mortgagee’s interests. An improvement district is merely a creature of the Legislature, and the Legislature can impose upon it such liabilities as it deems fit. The Legislature has provided that so long as there is no default in the payment of the bonds, the property owners shall have a right to pay their taxes through the county collector. It has provided also that in case of such default the taxes shall be collected by a receiver appointed by the court on the application of the bondholders. That this right to the appointment of a receiver is a substantive one of the greatest value must be apparent to this Court, from its long and painful experience in matters of mandamus against public corporations. By the terms of the statute creating the district, the bondholders were solemnly assured that if there should be default for thirty days in the payment either of principal or interest of the bonds a receiver would be appointed. It was upon the faith of this assurance that they bought the bonds. The law under which an obligation is issued enters into it and forms a part thereof, as completely as if fully set forth therein. It would be monstrous to hold that this solemn promise held out to the bondholders as an inducement to buy the bonds did not confer upon them GUARDIAN SAVINGS CO. v. ROAD DIST. 3 1 Argument for Respondent. a substantive right which will be enforced by the federal courts. This is particularly the case because the appointment of a receiver in a suit to foreclose a mortgage lien is a part of the ordinary equity jurisdiction of the federal courts; so that there is no attempt in the state statute to grant a remedy unknown to those courts, but merely to create a right which those courts will enforce in the manner provided by their rules and the practice in chancery. What are substantial remedial rights is illustrated by numerous decisions of this Court. Holland v. Chdllen, 110 U. S. 15; Devine v. Los Angeles, 202 U. S. 313; The Case of Broderick's Will, 21 Wall. 503; Ellis v. Davis, 109 U. S. 485; Farrell v. O'Brien, 199 U. S. 89; Sutton v. English, 246 U. S. 199; Gormley v. Clark, 134 U. S. 338; Louisville & N. Ry. Co. v. Western Union Tel. Co., 234 U. S. 370; Reynolds v. Crawfordsville Bank, 112, U. S. 405; United States Mining Co. n. Lawson, 134 Fed. 769, 207 U. S. 1. This case comes exactly within the principle of the exception laid down in Pusey & Jones Co. n. Hanssen, 261 U. S. 491. See also Butz v. City of Muscatine, 8 Wall. 575; Bronson v. Kinzie, 1 How. 311; Howard v. Bugbee, 24 How. 461; Bamitz v. Beverly, 163 U. S. 118, Sheffield v. Witherow, 149 U. S. 574. Mr. Henry D. Ashley, with whom Mr. J. F. Gautney was on the brief, for respondent. United States courts will not assume all jurisdiction that the State courts could assume. Heine v. Board of Levee Commissioners, 19 Wall., 655. The right to have a receiver appointed for the purpose set out in the Act is not substantive but is purely remedial. No court has an inherent right to appoint a receiver to collect or levy taxes. 4 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. The right to levy and collect taxes can only be acquired by express delegation from the legislative body and can be exercised by no other body or person than the one designated by the Legislature. The appointment of the receiver to levy and collect taxes is not on account of the equity powers of the Chancery Court of Poinsett County, but on account of an express delegation from the Arkansas Legislature. The right, therefore, is purely remedial and is not substantive so as to be administered by any other court. The court erred in exercising jurisdiction herein, the Chancery Court of Poinsett County having first acquired jurisdiction. Kline v. Burke Construction Company, 260 U. S. 226. A proceeding had in a proper court for the laying out of a public road is in the nature of a proceeding in rem and binds all the world. Milcreek Tp. v. Reed, 29 Pa. St. 195; Farmers Loan & T. Co. v. Lake St. Elevated, 177 U. S., 51. Section 13 of Act 322 provides that the Board of Commissioners shall enforce the collection by chancery proceedings in the Chancery Court of Poinsett County in the manner provided by Sections 23 and 24 of Act 279. Sec. 23 provides “Said proceedings and judgment shall be in the nature of proceedings in rem.” The case brought in the United States District Court was a proceeding in rem and the suit in the Chancery Court of Poinsett County was begun before the suit in the United States District Court. Mr. Justice Holmes delivered the opinion of the Court. This is a bill in equity brought by the petitioner against Road Improvement District No. 7 of Poinsett County, Arkansas. It alleges that the District was organized under acts creating the District and in the second GUARDIAN SAVINGS CO. v. ROAD DIST. 5 1 Opinion of the Court. statute confirming the District’s assessment of benefits; that after the assessment the District issued its negotiable bonds, as authorized by the acts; that the bonds are in the hands of innocent purchasers for value before maturity; that, as also authorized, the bonds are secured by a mortgage of the assessments and all other assets of the District, to the plaintiff as trustee for the bondholders; and that by the terms of the acts after a default for more than thirty days in payment of interest or principal, a receiver shall be appointed to take charge of the affairs of the District. A default is alleged and is explained by a decree of the Chancery Court of Poinsett County that set aside the assessment securing the bonds and enjoined the District from paying any money belonging to it. The plaintiff and the bondholders were not parties to the suit and the decree saved their rights, but of course it prevents their getting any payment until they are relieved. The District Court made a decree for the plaintiff and directed a receiver appointed by it to collect the taxes theretofore levied to the extent necessary to pay the outstanding bonds and coupons. The Circuit Court of Appeals held that the District Court had no jurisdiction and ordered the bill to be dismissed. 298 Fed. 272. The acts from which the District got its existence and power were Act No. 322 of the State for 1919, and Act No. 45 of the Acts of 1920, the second being an amendment of the first and a declaration and enactment that the assessments of benefits have been made and are confirmed. The plan of the first was that the assessment should be made at the outset and that thereupon the county court should enter an order ‘ which shall have all the force of a judgment’ that there should be assessed upon the real property of the district a tax sufficient to pay the estimated cost of the improvement with ten per cent, added, in the proportion of the benefits, to be paid in annual instalments, not to exceed ten per cent, for any 6 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. one year. The tax is made a lien upon the land and in this way a security is created and the statute allows it to be mortgaged, as was done in this case. If any bond or coupon is not paid within thirty days of its maturity it is made the duty of the Chancery Court of Poinsett County to appoint a receiver to collect the taxes and pay what is due, and power is given to direct the receiver to foreclose the lien on the lands. The ground on which jurisdiction was denied by the Circuit Court of Appeals was that the power to levy and collect taxes was a legislative function of the State which could not be usurped by a federal court. But while that may be true as a general doctrine, it cannot apply when a State has authorized and confirmed an assessment and a mortgage of it as security for bonds that the public is invited to buy, and has provided in terms for a collection by a receiver appointed in equity if there should be a default. There is no longer any legislative act to be done, and there is no usurpation of powers in following the course provided by state law. It seems to be recognized in Meriwether v. Garrett, 102 U. S. 472, that a receiver might be appointed by a Court of Chancery when that remedy was contemplated by the contract, as it fairly may be said to have been contemplated here. The subject matter of the mortgage and the possible foreclosure of the lien require the intervention of such a Court if right is to be done. In the argument before us there was some suggestion that the chancery power was confined to the state court named in the statute. But the decisions have done away with such a limitation and it was not relied upon by the Circuit Court of Appeals. Madisonville Traction Co. v. Saint Bernard Mining Co., 196 U. S. 239; Road Improvement District v. St. Louis Southwestern Ry. Co., 257 U. S. 547, 555. The state law is not merely an enlargement of the remedial powers of a local court as in Pusey & Jones Co. v. Hanssen, 261 OKLAHOMA v. TEXAS. 7 1 Syllabus. U. S. 491, it recognizes the inadequacy of the remedy at law and is an attempt to give to purchasers of bonds the assurance of adequate relief against shortcomings that experience has taught the business world to apprehend. We see no reason why it should not succeed. Campbellsville Lumber Co. v. Hubbert, 112 Fed. 718. Stansell v. Levee Board, 13 Fed. 846. Supervisors v. Rogers, 7 Wall. 175. The respondent attempted to open the general merits of the case. If there is anything in the effort, which we do not imply, we shall leave that for further consideration below. The Circuit Court of Appeals regarded the case as stopped at the outset by want of jurisdiction. In that we think it erred. Decree reversed. STATE OF OKLAHOMA v. STATE OF TEXAS. UNITED STATES, INTERVENER. IN EQUITY. No. 13, Original. Orders entered January 19, 1925. Receivership Orders: 1 and 2. For payments to Kirby Petroleum Company by way of reimbursement for expense of drilling certain wells prior to receivership. 3. Requiring one Testerman to accept within 40 days moneys hereinbefore allowed him (265 U. S. 516, Par. 11) in discharge of claim; otherwise claim to be deemed abandoned and moneys paid to Secretary of Interior for United States. 4. Requiring contesting claimants as to expense of drilling of Burke-Senator well prior to receivership to adjust differences and accept reimbursement (265 U. S. 516, Par. 13) or show cause why claims should not be denied and moneys paid to Secretary of Interior for United States. 5 and 6. Pursuant to stipulations, moneys derived from certain wells to be paid to persons named as trustees, to hold pending determination of rights of rival claimants through litigation in Texas courts. 8 OCTOBER TERM, 1924. Orders. 267 U. S. 7. Motion of Texas for leave to file claim of interest in part of impounded funds denied because claim not presented within time hereinbefore limited (265 U. S. 518, Par. 18,) and of inequitable results were it now entertained. 8. Conflicting claims to funds derived from various wells referred to a special master to take evidence and report it with findings of fact, conclusions of law and recommendations; special directions as to time limits of proceedings, exceptions, authority to subpoena witnesses, use of existing evidence, allowances and expenses of master. 9. Disputed funds referred to in par. 8, may be paid over by receiver in accordance with stipulations of claimants effecting settlement or providing for further settlement by media other than this Court, provided such stipulations be filed before time fixed for taking of evidence by special master. On consideration of the thirteenth report of the receiver herein the court makes the following orders: 1. The receiver is instructed to pay the net proceeds derived from well 155 amounting to $4,514.47, to the Kirby Petroleum Company by way of partly reimbursing it for expense incurred by it or its predecessor in drilling that well prior to the receivership—such payment to be in full discharge of all possible claims against the receivership by reason of that work and expense. 2. The receiver is instructed to pay a balance of $1,097.76 out of the net proceeds of well 156 to the Kirby Petroleum Company on its claim for expense incurred by it or its predecessor in drilling that well prior to the receivership—such payment to be in full discharge of all possible claims against the receivership by reason of that work and expense. 3. Unless within forty days from this date Tom Testerman shall accept the moneys directed to be paid to him by paragraph 11 of the order of June 9, 1924, in discharge of the claim therein described, he shall be deemed to have abandoned that claim and the moneys reserved to cover the same shall be paid over by the receiver to the Secretary of the Interior, as the representative of the United OKLAHOMA v. TEXAS. 9 7 Orders. States, as a part of the net impounded funds derived from the receiver’s operations within the river-bed area. The receiver is instructed to deliver or transmit forthwith to Tom Testerman a copy of this order. 4. Unless within forty days from this date the operators who presented claims for reimbursement out of the proceeds of well 139 (known as the Burke-Senator well) for the cost of drilling that well prior to the receivership shall adjust the differences between them and accept reimbursement as contemplated in paragraph 13 of the order of June 9, 1924, they are directed to show cause, within five days after the expiration of that period, why those claims should not be denied and why the moneys reserved to cover them should not be paid over to the Secretary of the Interior, as the representative of the United States, as part of the net impounded funds derived from river-bed wells. The receiver is instructed to deliver or transmit forthwith to such claimants copies of this order. 5. Pursuant to a stipulation made and presented by the conflicting claimants thereto, the receiver is instructed to pay the balance of the net royalty interest in the proceeds of wells 97, 98, 99, 100, 102, 109, and 119 to A. H. Carrigan, as the joint agent and trustee of such claimants, to the end that he, according to such stipulation, may deposit such moneys in the First National Bank of Wichita Falls, Texas, there to be held to await the outcome of litigation now pending in the courts of Texas to determine the rights of such claimants in such royalty interest. 6. Pursuant to a stipulation made and presented by the conflicting claimants thereto, the receiver is instructed to pay to Rhea S. Nixon, Receiver of the Southwest Petroleum Company and trustee of certain claimants, 27/96 of the net balance of the operating interest in the proceeds of well 180 (after deducting the overriding royalty belonging to C. J. Ferguson), and also to pay to the Security 10 OCTOBER TERM, 1924. Orders. 267 U. S. National Bank of Wichita Falls, Texas, 1/6 of the said balance—the 27/96 to be held by Rhea S. Nixon, as receiver and trustee, to await the outcome of litigation now pending in the courts of Texas to determine the rights of those who are claiming interests therein, and the 1/6 to be held by the Security National Bank to await the outcome of litigation now pending in those courts to determine the rights of those who are claiming interests therein. 7. The motion of the State of Texas presented January 16, 1925, for leave to file a claim for a royalty or owner’s interest in a part of the impounded funds in the receiver’s custody is denied,—because, as appears from the receiver’s thirteenth report before mentioned, no claim thereto was presented by that State within the period prescribed by paragraph 18 of the order of June 9, 1Q24, because that period has long since expired, and because to permit such a claim by the State to be presented and entertained at this time would unreasonably prolong the receivership and would be inequitable to other claimants whose claims were seasonably presented. 8. The several conflicting claims to impounded funds derived from wells 152,153,154,157,159,160,162,165,169, 170 and 172 presented to the receiver under paragraph 18 of the order of June 9, 1924, and reported in his thirteenth report before mentioned, are referred to Joseph M. Hill, Esquire, of Fort Smith, Arkansas, as a special master, with directions that such special master take the evidence bearing on such claims and report the same to the court, together with his findings of fact, conclusions of. law and recommendations in the premises, for the ultimate consideration and action of the court. The evidence shall be taken at Wichita Falls, Texas, and the taking thereof shall begin February 16, 1925, and shall proceed with reasonable expedition and be concluded not later than March 7, 1925. The report of the special master shall be 7 OKLAHOMA v. TEXAS. Orders. 11 filed with the clerk within thirty days after the evidence is taken, and shall be printed by the clerk. Claimants shall have fifteen days after the filing of the report within which to prepare, print and file exceptions to it accompanied by supporting briefs. The special master shall have authority to issue subpoenas to secure the attendance of witnesses, and also authority to employ competent stenographic and clerical assistance. Claimants shall be permitted to introduce and use in evidence any documents or other instruments appearing in the printed records in this cause without procuring new exemplifications thereof or presenting other proof of their authenticity or identification. The special master shall receive an allowance covering his actual expenses and a reasonable compensation for his service. This allowance, together with the cost of his stenographic and clerical assistance and the cost of printing his report, shall be charged against and be borne by the several claimants in such proportions and in such manner as the court hereafter may direct. Each claimant, however, shall make to the clerk an advance payment of fifty dollars towards such costs within twenty days from this date; and in default thereof the claimant shall be deemed to have abandoned his claim. 9. If, before the time fixed for taking evidence under the last paragraph, the several conflicting claimants to any particular fund make and present to the receiver a stipulation adjusting their differences and settling their rights to such fund, or providing that the fund shall be paid over to a trustee of their selection to await an adjustment or adjudication of their claims through some medium other than this court, the receiver shall be authorized to give effect to such stipulation and to pay over the fund as therein provided, and the stipulation shall operate to withdraw the claims covered by it from the reference to the special master. 12 OCTOBER TERM, 1924. Argument for Appellant. 267 U. S. COLLEGE POINT BOAT CORPORATION v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 121. Argued November 17, 1924.—Decided January 19, 1925. 1. Claimant’s preparations to perform its contract for furnishing supplies to the Navy were stopped as the result of steps taken by the Navy Department, for the purpose of avoiding useless production, without manifested intention to cancel the contract and without giving the notice requisite to the exercise of the unconditional right of cancellation existing under the Act of June 15, 1917, (Russell Motor Car Co. v. United States, 261 U. S. 514,) pursuant to which the contract was made. Held, that there was no cancellation as a matter of law, and that the stoppage of performance was an anticipatory breach. P. 15. 2. The Government’s right of cancellation, under the above statute, is continuing and not lost by delay in exercising it. P. 16. 3. This continuing right of cancellation, limiting the value of the other party’s right to require performance, curtails his damages for an anticipatory breach by the Government, so that prospective profits are not recoverable. Id. 4. There is no general rule that a party can not exercise a right to cancel a contract when himself in default. Id. 5. Held, that a default on the part of the Government was insubstantial and did not render inequitable delayed exercise of its right to cancel the contract. Id. 6. The right, to cancel conferred by the Act of June 15, 1917, is not made dependent on a tender of 75% of the amount offered by the Government in settlement. P. 17. 58 Ct. Clms. 380, affirmed. Appeal from a judgment of the Court of Claims rejecting a claim for loss of profits anticipated under a contract with the United States, performance of which was stopped by the Government. Mr. Julian C. Hammack and Mr. Bynum E. Hinton, for appellant. The mere presence in a contract of a right of cancellation by one party, does not relieve that party from lia- COLLEGE POINT BOAT CO. v. U. S. 13 12 Opinion of the Court. bility for breach of the contract. Kenney v. Kniqht, 119 Fed. 475. Also the mere presence in a contract of the right of cancellation, if not exercised in accordance with that right, does not affect the measure of damages for breach. The injured party in such a case is entitled to recover his proven prospective profits. Philadelphia etc. R. R. Co. v. Howard, 13 How. 307. The law is generally well settled that a party who is himself in default of performance cannot rescind. 13 Corpus Juris 614, § 662. It is also well established that a party cannot cancel a contract, even though a right to do so is expressly written in the contract, after a liability has occurred. This is so even where the extent of the liability is not then determinable. Black on Rescission and Cancellation, § 480. As the contract has not been cancelled, no question of the application of the Act of June 15, 1917, is involved. Therefore Russell Motor Car Co. Case, 261 U. S. 514, is not decisive of the case at bar. That case, moreover, is otherwise clearly distinguishable on the facts. There was no taking of this contract by the government. The stoppage of the physical work had to do with the subject-matter and could not constitute a cancellation or a taking of the contract. Omnia Commercial Co. v. United States, 261 IL S. 502. Mr. Alfred A. Wheat, Special Assistant to the Attorney General, with whom Mr. Solicitor General Beck was on the brief, for appellee. Mr. Justice Brandeis delivered the opinion of the Court. On October 25, 1918, the College Point Boat Corporation agreed to manufacture for the Navy Department 2,000 collision mats. The United States agreed to pay therefor $641,200, and to supply the required canvas. On 14 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. November 11, 1918, the Armistice was signed. Soon after, the Navy Department informed the Corporation that the mats would probably not be needed, suggested that it stop operations, and asked it to submit a proposition for cancellation of the contract. This notification and request were received before the process of manufacture had been begun; but the Corporation had expended large sums in necessary preparations. Negotiations for settlement followed. They extended over nearly eight months and proved inconclusive. Without prejudice to the rights of either party, the United States made a partial settlement by taking over at cost raw materials which the Corporation had purchased or contracted for. In November, 1919, this suit was brought in the Court of Claims to recover the further amounts claimed. The court found that, in addition to the amounts covered by the partial settlement, expenditures had been made, services rendered and charges incurred aggregating $5,112.42 in cost or value. For that amount it entered judgment. The claimant contended that the United States was under the ordinary liability of one who, having contracted for goods to be manufactured, without cause gives notice that he will not accept delivery; and that it was liable, also, for the prospective profits. United States v. Speed, 8 Wall. 77; United States v. Purcell Envelope Co., 249 U. S. 313, 320. The court found that the Corporation was ready, willing and able to perform the contract; and that if it “ be entitled to prospective profits on the contract work, the amount of such profits it would be entitled to recover, after allowing for its release from the care and responsibility which would have attended full performance of the contract, would be $123,980.” As a conclusion of law, the court ruled that no part of these prospective profits was recoverable, because the United States had cancelled the contract. 58 Ct. Clms. 380. The case is here on appeal under § 242 of the Judicial Code. COLLEGE POINT BOAT CO. v. U. S. 15 12 Opinion of the Court. There is no finding of fact that the contract was cancelled. Nor do the facts found warrant the conclusion that there was in law a cancellation before the suit was begun. The contract did not contain any clause authorizing cancellation other than for default by the plaintiff. There was no such default. The United States actually did have an unconditional right of cancellation. For the contract was made pursuant to the Act of June 15, 1917, c. 29, 40 Stat. 182. By virtue of the statutory provision, as was later held in Russell Motor Car Co. v. United States, 261 U. S. 514, the right to cancel became, by implication, one of the terms of the contract. But, so far as appears, neither party knew that the United States had such a right. The Navy Department failed to give the notice requisite to terminate the contract. Its sole objective in suggesting that preparations for the performance of the contract be stopped was to avoid useless production. The Corporation necessarily acquiesced. The parties negotiated, seeking to find a basis on which they could agree to cancel and liquidate the obligation of the Government. In the negotiations, and in the agreements which embodied the partial settlement, the Navy used language inconsistent with an intention to exercise a right of cancellation. As its efforts to procure consent to cancel proved futile, stopping the work was an anticipatory breach. The question remains whether the measure of damages recoverable for this breach is the same as it would have been if the Government had not possessed the right of cancellation. A party to a contract who is sued for its breach may ordinarily defend on the ground that there existed, at the time, a legal excuse for nonperformance by him, although he was then ignorant of the fact.1 He 1H. D. Williams Cooperage Co. v. Schofield, 115 Fed. 119, 121; Trinidad Asphalt Mfg. Co. v. Trinidad Asphalt Refining Co., 119 Fed. 134, 138. 16 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. may, likewise, justify an asserted termination, rescission, or repudiation, of a contract by proving that there was, at the time, an adequate cause, although it did not become known to him until later.2 An unconditional right to cancel can be availed of for the purpose of terminating a contract, even after suit brought, unless some intervening change in the position of the other party renders that course inequitable. Compare Clough v. London & Northwestern Ry. Co., L. R. 7 Exch. 26, 33 et seq. Ignorance of its right doubtless prevented the Navy Department from taking, shortly after the Armistice, the course which would have resulted legally in cancelling the contract at that time. But the right to cancel was not lost by mere delay in exercising it; among other reasons, because the statute conferred upon the Government also the power to suspend the contract. The right remained effective as a limitation upon the Corporation’s right to have the Government accept and pay for the mats. This continuing right of cancellation, which was asserted later, in court, operated to curtail the damages recoverable. It limited the value of the plaintiff’s right to require performance,, and hence the amount and character of the loss for which compensation must be made. Prospective profits were not recoverable. The Corporation contends that the United States had broken its agreement even prior to its notification to stop preparations for the performance of the contract; and that a party in default cannot exercise a right to cancel. There is no such rule of general application. The default referred to was not substantial. By the terms of the 2 Carpenter Steel Co. y. Norcross, 204 Fed. 537, 539-540; Fanner v. First Trust Co., 246 Fed. 671, 673; E. H. Taylor, Jr., & Sons v. Julius Levin Co., 274 Fed. 275, 282; Lubriko Co. v. Wyman, 290 Fed. 12, 15; Boston Deep Sea Fishing & Ice Co. v. Ansell, L. R. 39 Ch. Div. 339, 352; In re London & Mediterranean Bank, Wright’s Case, L. R. 7 Ch. App. 55; Baillie v. Kell, 4 Bing. N. C. 638, 650. LEDERER v. FIDELITY TRUST CO. 17 12 Syllabus. contract the United States was to furnish the canvas within thirty days, that is, on November 25. It did not do so. Two weeks before that date the Armistice had been signed. On December 3, the Corporation requested that the canvas be supplied. On December 6 it received from the Navy notice that the mats would probably not be needed. Neither these facts, nor any other found, render inequitable a delayed exercise of the right to cancel. It is also urged that the Navy did not tender to the Corporation 75 per cent, of the amount which it offered in settlement. The right to cancel conferred by the Act of June 15, 1917, is not made dependent upon such tender. The Corporation made no demand for that amount. Moreover, for aught that appears, it has actually received a larger percentage. With the amount awarded by the lower court, it will receive full compensation. Affirmed. EPHRAIM LEDERER, COLLECTOR OF INTERNAL REVENUE FOR THE FIRST DISTRICT OF THE STATE OF PENNSYLVANIA,!;.FIDELITY TRUST COMPANY. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 184. Argued January 15, 16, 1925.—Decided January 26, 1925. 1. Railroad equipment certificates issued by a trust company as security for money advanced by a syndicate to purchase equipment leased by the trust company to a railroad under contract for periodical payments, as rentals, and ultimate acquisition of title by the latter, and which are payable with interest to bearer or registered holder from the rentals thus to be paid by the railroad,— held subject to stamp tax, under Title XI, §1100 and schedule A (1) of the Act of February 24, 1919, c. 18, as in the category of “instruments . . . issued by any corporation . . . known generally as corporate securities.” P. 20. 289 Fed. 1009, reversed. 42684°—25-------2 18 OCTOBER TERM, 1924. Argument for Respondent. 267 U. S. Certiorari to a judgment of the Circuit Court of Appeals which reversed a judgment of the District Court in favor of the petitioner, in an action brought by the respondent to recover the amount of a stamp tax paid under protest. Mr. Alfred A. Wheat, Special Assistant to the Attorney General, with whom Mr. Solicitor General Beck was on the brief, for petitioner. Mr. H. Gordon McCough, with whom Mr. Janies McMullan was on the brief, for respondent. For a proper consideration of this subject it is essential that a clear understanding be had of the nature of the certificates in question. A railroad company, needing additional rolling stock, goes to its banker, who undertakes to arrange for the building of the cars needed according to specifications furnished and the hiring of the same to the railroad company under a form of bailment, by which, on payment, of all rental reserved, the railroad company is given the option to purchase the equipment for one dollar. The operation is financed by the banker arranging with a trust company to receive subscriptions for the purchase of the desired rolling stock, to contract with the car builders for the purchase of the same, and as agent for the owners to lease the equipment to the railroad company at rentals agreed upon, and to issue to the subscribers certificates evidencing their equitable ownership and certifying that out of the rentals to be received by the trustee the holders will be entitled to the amount of such certificates with dividends as stated. It is to be observed that the certificate is not a certificate of indebtedness; that there is no debtor; that it is merely the declaration of'the trustee, as agent of the holder of the certificate, that it will collect for his benefit and that of other owners the rentals expressed in the LEDERER v. FIDELITY TRUST CO. 19 17 Argument for Respondent. lease and distribute the same pro rata. If not paid at maturity no action of debt would lie upon such certificate. Equipment certificates are frequently referred to by writers on economics and finance as bonds or notes or corporate securities. Such description is quite proper where the certificates referred to are the direct obligation of the railroad company lessee, but not where the certificates are in the form of those taxed in the case at bar. The Government’s argument that the form of the agreement is for practical purposes immaterial is directly at variance with the decision of this Court in United States n. Isham, 17 Wall. 496, that the liability of an instrument to stamp duty is determined by the form and face of the instrument. The words of the statute are definite, precise, grammatically expressed and free from ambiguity. The tax is imposed on “ all instruments (however termed) issued by any corporation (with interest coupons or in registered form) known generally as corporate securities.” The equipment certificate here taxed is not a certificate of indebtedness or a corporate security. It is not the obligation of a corporation to pay money owing by it, nor does it evidence an indebtedness secured on the property of a corporation. It is a mere declaration of trust and defines the holder’s ownership of the equipment leased to the railroad company and the extent of his interest in the moneys to be received as rental therefor. Neither the railroad company nor the trust company is indebted to the certificate holders. The railroad company is obligated to pay rental for the use of certain equipment, and the trustee, to which such rental is paid, has to turn over to each certificate holder his proportionate share when and as received. The certificate is merely the evidence of the holder’s equitable ownership of an undivided interest in the equipment leased to the railroad company and the rentals pay- 20 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. able therefor. How, then, can such muniments of title be termed “ corporate securities ”? See Edwards v. Chile Copper Co. 273 Fed. 452. “ In the interpretation of statutes levying taxes it is the established rule not to extend their provisions, by implication, beyond the clear import of the language used. Gould v. Gould, 245 U. S. 151; United States n. Merriam, 263 U. S. 179. Mr. Justice Holmes delivered the opinion of the Court. This is a suit by the Fidelity Trust Company to recover $450 and interest, paid by it under protest for internal revenue stamps which the Collector, Lederer, required it to attach to railroad equipment certificates drawn in a form set forth. The parties agree that the only question is whether these certificates are subject to a stamp tax under the Act of February 24, 1919, c. 18, Title XI, § 1100, and Schedule A (1); 40 Stat. 1057, 1133, 1135* The section imposes a tax according to the schedule and the material part of the schedule is as follows: “ 1. Bonds of indebtedness: On all bonds, debentures, or certificates of indebtedness issued by any person, and all instruments however termed, issued by any corporation with interest coupon or in registered form, known generally as corporate securities, on each $100 of face value or fraction thereof, 5 cents.” The question more narrowly stated is whether the certificates are instruments issued &c. known generally as corporate securities. The Circuit Court of Appeals reversing the judgment of the District Court held that they were not within the schedule, that “ no indebtedness is involved or obligation incurred by the trustee to the holder, but it is simply a certificate of the holder’s right to proportionate participation in a rental when paid.” 289 Fed. 1009, 1012. A writ of certiorari was granted by this Court. Using a familiar device the Fidelity Trust Company agreed to furnish and let to the Interstate Railroad Com- 17 LEDERER v. FIDELITY TRUST CO. Opinion of the Court. 21 pany 500 specified cars and the lessee agreed to pay $90,000, being one-tenth of the cost of the cars, annually at certain dates, and three per cent, half yearly on the part then unpaid. When the whole amount should be paid the trustee agreed to sell the cars to the railroad company for one dollar. As part of the same transaction by an instrument reciting that subscriptions had been secured through certain bankers to a fund, to be known as Interstate Railroad Equipment Trust, Series “ C,” for the payment of the price of the railroad equipment described in the lease, and that the trustee proposed “ to secure to the parties subscribing ” to the fund the payment thereof in ten annual instalments with interest at six per cent., the trustee covenanted with the railroad on receipt of the money subscribed to issue to the bankers the certificates in question here. The essential features are that the bearer or registered holder is entitled to one share of $1,000 in Interstate Railroad Equipment Trust, Series “ C,” in accordance with the above agreement, referred to; that the principal shall be payable at the dates of the payments by the railroad, one-tenth of the certificates, identified by number, each year, and in the meantime dividends will be payable as evidenced by dividend warrants attached, principal and interest payable in gold &c., “ but only from and out of the deferred rentals when paid as provided in ” the lease referred to. The petitioner asks us to look through the form of the arrangement and give it a somewhat different meaning. The respondent on the other hand says in the language of United States v. Isham, 17 Wall. 496, “ whatever upon its face [the instrument] purports to be, that it is for the purpose of ascertaining the stamp duty.” We are content to adopt the respondent’s rule for this case, as upon any rule the result seems to us clear. As a matter of common speech, to which the statute refers, we have no doubt that these instruments would be 22 OCTOBER TERM, 1924. Syllabus. 267 U. S. known as corporate securities. They would be called so more accurately than some other documents which we believe also would be known generally by that name. Their purpose, as stated in the agreement of the trustee with the railroad, is to secure payment to the holder with interest. They do nothing else. We do not regard the precise limits of the Trust Company’s undertaking as important. If it were only to collect and pay money received by the Company under the secured contract of the Railroad it would be a security for money payment. But the counsel for the Company seemed not prepared to argue that the Company could not put the money received from the Railroad into its general account without a breach of trust, and give the certificate holder cash or a check for his interest or principal. But be the undertaking greater or less, the security better or worse, we cannot regard these certificates as anything but corporate securities by general understanding and in fact. Judgment reversed. DIRECTION DER DISCONTO-GESELLSCHAFT v. UNITED STATES STEEL CORPORATION, PUBLIC TRUSTEE, EGREMONT JOHN MILLS, ET AL. BANK FÜR HANDEL UND INDUSTRIE v. UNITED STATES STEEL CORPORATION, PUBLIC TRUSTEE, ENGLISH ASSOCIATION OF AMERICAN BOND AND SHAREHOLDERS, LTD., ET AL. APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. Nos. 676 and 677. Argued January 9, 1925.—Decided January 26, 1925. 1. Certificates of shares in a New Jersey corporation, endorsed in blank and owned and held by German corporations, were seized DISCONTO-GESELLSCHAFT v. U. S. STEEL CO. 23 22 Argument for Appellants. • in London during the late war by the Public Trustee, a corporation sole appointed under the English law to be custodian of enemy property. Held that the ownership of the paper was dependent upon the law of the place where it was at the time, viz., England, and, as the things done in England transferred the title to the certificates to the Public Trustee by English law and as, by the law of New Jersey and the law of England, the owner of such certificates may write a name in the blank endonsement and thus entitle the nominee to obtain registration on the books of the corporation and issuance of new certificates to himself, the Trustee was entitled to pursue this cause as against the German corporations, there being no assertion of power by the United States to the contrary. P. 28. 2. Consequently, a decree of the District Court recognizing this right and directing the New Jersey corporation to issue new certificates to such nominee on surrender of the old ones properly endorsed did not deprive the German corporations of property without due process of law. Id. 300 Fed. 741, affirmed. Appeals from two decrees of the District Court in suits brought by the appellant German corporations to establish their titles to shares of stock of the Steel Corporation, the certificates for which, endorsed in blank, were seized at London during the War and passed to the Public Trustee of England, as custodian of alien property. 'The defendants were the Steel Corporation, the Public Trustee, and stockholders of record who disclaimed interest. The title to the shares, with the right to registration, and accrued dividends, was adjudged to be in the Public Trustee. Mr. John Weld Peck and Mr. John Wilson Brown, III, with whom Mr. Alfred K. Nippert was on the briefs, for appellants. Our entire case is based on the proposition that a seizure of certificates in Great Britain does not constitute a seizure of the shares of the New Jersey corporation represented thereby. Chicago Rock Island Co. v. Sturm, 174 U. S. 710. 24 OCTOBER TERM, 1924. Argument for Appellants. 267 U. S. The basis of jurisdiction is actual power and its existence must be determined by close adhesion to the actual facts. The question here is not as to where fictions of convenience have, from time to time, thrown shares for purpose of taxation, administration and the like. The question is:* Where can power be exerted so as actually, irrevocably and effectively to subject all that there is of a share of stock to that power? The answer is, obviously: Where the corporation is and there only. Jurisdiction of property, separate from its owner, can be acquired and exerted only when, and to the extent, that such property is actually within the territorial jurisdiction. Pennoy er v. Neff, 95 U. S. 714; Boswell v. Otis, 9 How. 336; Cooper n. Reynolds, 10 Wall. 308; Mc-Elmoyle v. Cohen, 13 Pet. 312; D’Arcy v. Ketchum, 11 How. 165; Thompson v. Whitman, 18 Wall. 457; McDonald v. Maybee, 243 U. S. 90; Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194. A seizure of shares of stock, to be effective, must be real and actual as opposed to anything constructive. Miller v. United States, 11 Wall. 268; Phoenix Bank v. Risley, 111 U. S. 125; Chase n. Wetzlar, 225 U. S. 79. Since a share of stock is intangible, incorporeal (Miller v. Kaliwerke, 283 Fed. 746), and in the nature of a chose in action (Jellenik v. Huron Copper -Co., 177 U. S. 1), it is fundamentally incapable of manucaption. Yet it is clear that in the absence of statute one in position to compel the issuing corporation may, by compulsion, derive all the fruits of any particular shareholder’s rights, and neither the shareholder nor any other not having power to compel the corporation can oust from that position of advantage. Therefore it seems further clear that it is only at the corporate domicile that a seizure of a share, in any sense real and actual, can be made. DISCONTO-GESELLSCHAFT v. U. S. STEEL CO. 25 22 Argument for Appellants. Shares similar to those in suit have such existence at the corporate domicile as to found jurisdiction in rem, and may be levied upon, attached, and garnished by service on the corporation, although the certificate, its holder, and its owner be outside the jurisdiction. Jellenik v. Huron Copper Mining Company, 177 U. S. 1; Hudson Navigation Company v. Murray, 223 Fed. 466; Schultz v. Diehl, 217 U. S. 594; 54 Fed. 896; Ashley v. Quintará, 90 Fed. 84; Einstein v. Georgia Southern Ry. Co., 120 Fed. 1008; Gundry v. Reakirt, 173 Fed. 167; Shaw v. Goebel Brewing Company, 202 Fed. 408; Gideon v. Representative Securities Corporation, 232 Fed. 185; Harvey v. Harvey, 290 Fed. 653; Andrews v. Guayaquil Ry., 69 N. J. Eq. 211, (affirmed) 71 N. J. Eq., 768; Sohege n. Singer Mfg. Co., 73 N. J. Eq., 567; Amparo Mining Co. v. Fidelity Trust Co., 75 N. J. Eq., 555. The Jellenik decision has been applied and strictly followed by the federal courts in determining the validity of the seizure of shares of stock by the Alien Property Custodian of the United States under the provisions of the Trading with the Enemy Act. Columbia Brewing Co. v. Miller, 281 Fed. 289; Garvan v. Marconi Wireless Co., 275 Fed. 486; See particularly Miller v. Kaliwerke, etc., 283 Fed. 746. Shares cannot be captured except at some domicile of the corporation where transfer can be enforced. The presence of endorsed certificates beyond such domicile is not enough. ♦ Baker v. Baker, 242 U. S. 394; Ashley v. Quintará, 90 Fed. 84. The English cases and writers upon international law sustain this view. Dicey Digest of Law of England; The Attorney General v. The New York Breweries Co., 1 Q. B. (1898), 205; Attorney General v. Bouwens, 4 Meeson & Welsby, 171-191; Stem v. The Queen, 1 Q. B. (1896) 211; Winans v. The King, 1 K. B. (1908), 1022; New York Life Insurance Co. v. Public Trustee, 40 Times L. R. 430; Cassiáy v. Ellahorst, 110 O. S. 405, 1924. 26 OCTOBER TERM, 1924. Argument for Appellants. 267 U. S. That the certificates were endorsed does not alter the case. Colonial Bank v. Hepworth, L. R. 36 Ch. Div. 36, 53, 54. Yazoo and Mississippi Railroad v. Clarksdale, 257 U. S. 10, presented no question of the situs of shares. The weight of American authority is that foreign attachment does not lie against shares of a non-resident corporation merely by the seizure of the certificates. Baker v. Baker, supra; Christmas v. Biddle, 13 Pa. St. 233 (1850); Winslow v. Fletcher, 53 Conn. 391; Tweedy v. Bogart, 56 Conn. 419; Sheep & Wool Co. v. Traders Bank, 104 Ky. 90; Gundry v. Reakirt, 173 Fed. 167; Pinney v. Neville; 86 Fed. 97; Armour Brothers Banking Co. v. St. Louis Nat. Bank, 113 Mo. 12; Richardson v. Bush, 198 Mo. 174; Ireland v. Globe Milling Co., 19 R. I. 180; Maertens v. Scott, 33 R. I. 356; Daniel v. Gold Hill Mining Co., 28 Wash. 411; Reid Ice Cream Co. v. Stephens, 62 Ill. App. 334; Smith v. Downey, 8 Ind. App. 179. International law is clear and sweeping in its principle that incorporeal things including rights can be seized only by seizure of the corporeal thing to which the right is attached. Were that not so, any sovereign might by his own laws situate incorporeal things within his jurisdiction and then proceed under color of right established by his law to possess the thing corporeal, in whatsoever country it was situate. Phillimore’s Int. L. (3d Ed.J, Vol. 3, at page 817 et seq.; The Antelope, 10 Wheat. 66; Wisconsin v. Pelican Insurance Co., 127 U. S. 265. The principles here considered are strikingly like those involved in Baglin v. Cusenier, 221 U. S. 581. No confirmations of the treaty of Versailles apply. Mr. Wm. Averell Brown, with whom Mr. Kenneth B. Halstead was on the brief, for United States Steel Corporation. DISCONTO-GESELLSCHAFT v. U. S. STEEL CO. 27 22 Opinion of the Court. Mr. Frederick R. Coudert, with whom Mr. Howard Thayer Kingsbury and Mr. Mahlon B. Doing were on the brief, for Public Trustee. Mr. Justice Holmes delivered the opinion of the Court. These are bills in equity in similar form each raising the same question. In each the plaintiff is a German corporation and the interested defendants are the Public Trustee, an English corporation sole appointed to be custodian of enemy property during the late war, and the United States Steel Corporation. Each plaintiff claims one hundred identified shares in the Steel Corporation and seeks to be declared owner of the same, to have new certificates issued to it and the outstanding certificates cancelled on the books of the corporation, and to recover past dividends declared but unpaid. The cases were submitted by them upon an agreed statement of facts, and the District Court after a discussion that leaves nothing to be added dismissed the bills. The decree declared the Public Trustee to be entitled to the shares and directed the Steel Corporation to issue new certificates to his nominee on surrender of the old ones properly endorsed. 300 Fed. 741. As is usual with shares which it is desired to deal in abroad these shares were registered by tens on the Steel Corporation’s books in the name of some well-known broker or the like domiciled in England, and the assignment and power of attorney to transfer the shares printed on the back of the certificate was signed by the broker in blank so that the certificate passed from hand to hand. The Disconto-Gesellschaft had bought a hundred shares and held the certificates thus indorsed in its London branch. The Bank fur Handel had bought the same number and pledged them with an English banking house in a running account. On March 27,1918, an order of the Board of Trade in pursuance of statutory powers purported to vest in the Public Trustee the rights of the 28 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. Disconto-Gesellschaft to the shares and the right to take possession of the documents of title. On April 30, 1917, a similar order had been made as to the Bank fiir Handel’s stock. The Public Trustee thereupon seized the certificates in London as was regular and lawful under the laws of England while the war was going on and freed the pledged securities from the lien upon them by a sale of other stocks. He claims a title confirmed by the Treaty of Berlin and the Treaty of Versailles. The plaintiffs set up that a decree recognizing his title would deprive them of their property without due process of law. The appellants, starting from the sound proposition that jurisdiction is founded upon power, overwork the argument drawn from the power of the United States over the Steel Corporation. Taking the United States in this connection to mean the total powers of the Central and the State Governments, no doubt theoretically it could draw a line of fire around its boundaries and recognize nothing concerning the corporation or any interest in it that happened outside. But it prefers to consider itself civilized and to act accordingly. Therefore New Jersey having authorized this corporation like others to issue certificates that so far represent the stock that ordinarily at least no one can get the benefits of ownership except through and by means of the paper, it recognizes as owner anyone to whom the person declared by the paper to be owner has transferred it by the indorsement provided for, wherever it takes place. It allows an indorsement in blank, and by its law as well as by the law of England an indorsement in blank authorizes anyone who is the lawful owner of the paper to write in a name, and thereby entitle the person so named to demand registration as owner in his turn upon the corporation’s books. But the question who is the owner of the paper depends upon the law of the place where the paper is. It does not depend upon the holder’s having given Value or taking without notice of DISCONTO-GESELLSCHAFT v. U. S. STEEL CO. 29 22 Opinion, of the Court. outstanding claims but upon the things done being sufficient by the law of the place to transfer the title. An execution locally valid is as effectual as an ordinary purchase. Yazoo & Mississippi Valley R. R. Co. v. Clarksdale, 257 U. S. 10. The things done in England transferred the title to the Public Trustee by English law. If the United States had taken steps to assert its paramount power, as in Miller v. Kaliwerke Aschersleben Aktien-Gesellschaft, 283 Fed. 746, a different question would arise that we have no occasion to deal with. The United States has taken no such steps. It therefore stands in its usual attitude of indifference when title to the certificate is lawfully obtained. There is no conflict in matter of fact or matter of law between the United States and England and therefore Baker v. Baker, Eccles & Co., 242 U. S. 394, does not apply. We deem it so plain that the Public Trustee got a title good as against the plaintiffs by the original seizure that we deem it unnecessary to advert to the treaties upon which he also relies or to the subsequent dealings between England and Germany showing that both of those nations have assumed without doubt that the Trustee could sell the stock. We think it unnecessary also to repeat what was said below as to the possibility of the United States making a claim at some future time. Decree affirmed. 30 OCTOBER TERM, 1924. Syllabus. 267 U. S. THE STATE OF NEW MEXICO v. THE STATE OF COLORADO. IN EQUITY. No. 12 Original. Argued December 2, 3, 1924.—Decided January 26, 1925. 1. A line surveyed and marked in 1868 as the location of the parallel designated as the common boundary of the Territories, and later the States, of Colorado and New Mexico, was adopted and recognized by the United States as the true location and boundary, both during the existence of the two Territories and thereafter while New Mexico remained a Territory and Colorado was a State; it was likewise accepted and relied on by the State of Colorado from her admission in 1876, and by the State of New Mexico from her admission, in 1912, until she brought this suit against Colorado in 1919, wherein she claimed that another survey and location, made in 1903 under an appropriation from Congress, and which had been accepted by the General Land Office from 1904 to 1908, and approved in 1908 by a joint resolution of Congress which was vetoed by the President, should be established as the true location of the boundary. Held: (a) That New Mexico, upon her admission as a State, was bound by the previous recognition and adoption of the earlier location by the United States, her predecessor, and could not be heard to disavow the boundary thus recognized. P. 41. (6) The effect of this recognition of the earlier location by the United States was not impaired by the temporary recognition of the later one by the General Land Office. Id. (c) After Colorado’s admission as a State, her right to rely upon the boundary previously established could not be impaired by any subsequent action of the United States. Id. (d) New Mexico was bound also by her own recognition and adoption of the earlier line upon and after her admission to statehood. Id. 2. The boundary between the States of Colorado and New Mexico is the line of the 37th parallel as surveyed and marked by Darling from the Macomb monument westwardly to the 109th Meridian, and as surveyed and marked by Major and Preston from the said Macomb monument eastwardly to the Preston monument on the 103rd or Cimarron Meridian. P. 39. NEW MEXICO v. COLORADO. 31 30 Argument for Plaintiff. This was an original suit brought in this Court by the State of New Mexico against the State of Colorado to settle a controversy over their common boundary. New Mexico’s bill was dismissed and a decree was directed, under Colorado’s cross-bill, for a resurvey and remarking of the line found by the Court to be the true one, in accordance with Colorado’s contention. Mr. Frank W. Clancy, for complainant. First, it is clear that the later, or Carpenter, survey is as good as can be made. Second, the earlier, Darling, survey is inaccurate, defective, and in part a work of pure fiction. Third, the General Land Office must have been thoroughly convinced of the utterly worthless character of the Darling survey, when it directed the making of a new and independent survey of the 37th parallel with an accompanying destruction, as far as possible, of all evidence on the earth’s surface of the Darling line. Fourth, Congress presumably took the same view when it authorized that new survey, and, later, passed a resolution adopting the Carpenter line. Fifth, New Mexico has not recognized the Darling line as a boundary. It could not acquiesce in such a matter until it became a State, January 6, 1912; and this suit was brought with reasonable diligence thereafter. Sixth, the United States while recognizing the Darling line for years, only because nobody questioned it, finally repudiated it and tried to destroy it. The recognition was by no means continuous. Missouri v. Iowa, I How. 660, differs widely on the facts and is inapplicable. Seventh, even the State of Colorado, through its legislature, in 1901, shows a lack of certainty as to the Darling line which it now claims to have recognized ever since 1868. Messrs. Oliver Dean, Assistant Attorney General of Colorado; W. C. Williams, Attorney General, and Delph 32 OCTOBER TERM, 1924. Argument for Defendant. 267 U. S. E. Carpenter, Special Counsel, with whom Mr. Charles Roach, Deputy Attorney General, was on the brief, for defendant. I. The Darling-Major line was established by the United States when both Colorado and New Mexico were Territories and both States are bound by that boundary line. Missouri v. Iowa, 7 How. 660; Missouri v. Kentucky, 11 Wall. 395; Indiana v. Kentucky, 136 U. S. 479; Alt v. Butz, 81 N. J. L. 156; Billingsley v. Bates, 30 Ala. 376; Climer v. Wallace, 28 Mo. 556; Mayor etc. of Liberty v. Burns, 114 Mo. 426; Granby Mining etc. Co. v. Davis,, 156 Mo. 422; Ameson v. Spawn, 2 S. Dak. 269; Goodman v. Myrick, 5 Ore. 65; Jones v. Kimble, 19 Wis. 429; Washington Rock Co. v. Young, 110 Am. St. R. 678. II. The surveys of the Darling-Major line made in 1868 and 1874 are the senior surveys of the boundary line and must prevail over the junior survey made by Carpenter in 1902. The Carpenter survey is not shown to have been made by proper authority. It. was simply a new and independent survey, and does not purport to show the line as originally established. Original survey of lands, upon the faith of which property rights have been based and acquired, controls over surveys subsequently made which injuriously affect such rights. Washington Rock Co. v. Young, 29 Utah 108; Clement v. Parker, 125 U. S. 309. A subsequent survey cannot alter or control an original survey. When this can be traced or proved it must govern. Diehl v. Zang er. 39 Mich. 601; City of Racine v. Emerson, 85 Wis. 80. III. The Darling-Major line is the boundary between these States by reason of the recognition and acceptance thereof by the Territories and later by the States of Colorado and New Mexico and by the United States from the time of the survey thereof until the time this suit was filed. NEW MEXICO v. COLORADO. 33 30 Opinion of the Court. New Mexico is not only bound by the acts of the United States in surveying, establishing, monumenting and thereafter recognizing and adopting the Darling-Major line as the true boundary, but is also estopped by'the doctrines of long possession, prescription, laches and acquiescence from now asserting a different boundary. Rhode Island v. Massachusetts, 4 How. 591; Indiana v. Kentucky, 136 U. S. 479; Virginia v. Tennessee, 148 U. S. 503; Louisiana v. Mississippi, 202 U. S. 1; Maryland v. West Virginia, 217 U. S. 1. IV. The Carpenter survey has no legal status as a boundary line because it was made without the consent of the State of Colorado, never received the approval of the State, was rejected by Congress and has always been disregarded by every department of the Government of the United States. Mr. Justice Sanford delivered the opinion of the Court. This is a suit in equity, within the original jurisdiction of this Court, brought by the State of New Mexico against the State of Colorado, in 1919, to settle a controversy as to the location of their common boundary line. Under the Acts of Congress under which they were admitted into the Union and their respective Constitutions, this is the 37th parallel of north latitude between its intersections with the 103rd and 109th meridians of longitude west from Greenwich.1 The only dispute is as to the location of this line. Different surveys have been made. New Mexico alleges in its bill that the true line is that which was surveyed xThe 26th and 32nd meridians west from Washington. Colorado: Act of Mar. 3, 1875, c. 139, 18 Stat. 474; Constitution, Art. I. New Mexico: Act of June 20, 1910, c. 310, 36 Stat. 557; Constitution, Art. I, Sec. 2. 42684°—25--------3 34 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. and marked by Howard B. Carpenter in 1903, and prays that this be decreed to be the boundary. Colorado, in an answer and cross bill, alleges that the true line is that which was surveyed and marked by Ehud N. Darling in 1868, and extended by John J. Major and Levi S. Preston in 1874 and 1900; and prays that this line be decreed to be the boundary, and that, in so far as necessary, it be restored and remarked. The case has been heard on evidence taken by examiners, supplemented by a stipulation of the parties. The material facts are these: The Territory of New Mexico was established in 1850,2 and the Territory of Colorado in 1861.3 Under the Acts of Congress their common boundary was the 37th parallel, between the 103rd and 109th meridians. In 1867 Congress made an appropriation for the a survey of the thirty-seventh parallel of north latitude, so far as it constitutes the northern boundary of the Territory of New Mexico.”4 The Commissioner of the General Land Office employed Ehud N. Darling, a surveyor and astronomer, to make this survey. He made the survey in 1868, and filed his field notes in the Land Office. In accordance with his instructions, he adopted as the northeast corner of New Mexico a stone monument that had been established by Capt. J. N. Macomb, an Army Engineer, in 1859, to mark the intersection of the 37th parallel with the 103rd meridian, and, taking this as his beginning point, surveyed and marked the line of the parallel, as determined by astronomical observations and calculations for latitude, westwardly to the 109th meridian, a distance of over 331 miles. As shown by the field notes he established on this line eleven “ astronomical monuments,” with “ mile comers,” usually marked 2 9 Stat. 447, c. 49. 812 Stat. 172, c. 59. 414 Stat. 457, 466, c. 167. NEW MEXICO v. COLORADO. 35 30 Opinion of the Court. stones, at the end of each mile where the nature of the ground made this possible, otherwise locating the mile corners by triangulation. In 1869 the Commissioner of the General Land Office approved these field notes, and published an official11 Map of the Boundary Line between Colorado & New Mexico on the 37th Parallel North Latitude,” made in conformity to them. Several years later the Commissioner of the General Land Office employed John J. Major, a surveyor and astronomer, to survey and mark the remaining portion of the southern boundary of the Territory of Colorado, extending along the 37th parallel to the 102nd meridian. Major made this survey in 1874, and marked the line of the parallel between the Macomb monument and that meridian. The field notes of this survey were filed in the Land Office and approved by the Commissioner. In 1876 the State of Colorado was admitted into the Union, with the same southern boundary line as that of the Territory.5 Some years later the 103rd meridian was established on a line known as the 11 Cimarron Meridian,” intersecting the 37th parallel a short distance east of the Macomb monument. Thereafter the United States Surveyor General employed Levi S. Preston, a deputy surveyor, to resurvey and retrace the north boundary of New Mexico between the Macomb monument and the Cimarron meridian. Preston made this survey in 1900, retracing and remarking this portion of the Major line, and established at the intersection of that line and the Cimarron meridian, about two miles east of the Macomb monument, a sandstone comer since known as the Preston monument. The field notes of this resurvey were filed in the office of the Surveyor General and approved by him. B President’s Proclamation, Aug. 1, 1876, 19 Stat. 664. See note 1, supra. 36 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. In 1901 the State of Colorado appointed a commissioner to resurvey and remark a portion of its southern boundary line as surveyed and established by Darling, on which one of his astronomical monuments had disappeared and a number of mile corners could not be found.6 Both the Territory of New Mexico and the Interior Department were invited to join in this resurvey, but neither did so; and it was made by the Colorado commissioner alone. In 1902 an examiner of surveys in the General Land Office, on an inspection of about sixty miles of Darling’s original line, reported that but few of the comers then remained, and that the line was evidently erroneously established between identified monuments; and the Commissioner urged that the entire southern line of Colorado be resurveyed and reestablished. Thereupon, on the recommendation of the Secretary of the Interior,7 Congress made an appropriation for 11 the resurvey and reestablishment, on the line of the thirty-seventh parallel of north latitude, of the boundary line between the State of Colorado and the Territories of New Mexico and Oklahoma ” between the 102nd and 109th meridians.8 The Commissioner of the General Land Office employed Howard B. Carpenter, a surveyor and astronomer, to make this resurvey. He was not directed to retrace the lines previously established, but to make an independent survey, and was specifically instructed to “ obliterate ” all evidences of the corners and monuments that had been set by Darling. Carpenter completed this resurvey in 1903, and filed his field notes in the Land Office in 1904. These were approved by the Commissioner. Carpenter sur- 6 Colorado Laws, 1901, c. 37. 7 57th Cong., 1st Sess., H. R. Doc. No. 604. 8 Act of July 1, 1902, 32 Stat. 552, 574, c. 1351. The 37th parallel was also the common boundary of Colorado and Oklahoma, between the 102nd and 103rd meridians. NEW MEXICO v. COLORADO. 37 30 Opinion of the Court. veyed an entirely different line from the Darling and Major-Preston lines. His new line commenced on the 109th meridian, at some distance north of the Darling line, and ran for the greater portion of the boundary north of that, line, although crossing it shortly before reaching the Macomb monument and running for the remainder of the distance somewhat to the south of the Darling and Major-Preston lines. Taken as a whole, its effect, if established as the boundary, would be to transfer a large strip of territory from Colorado to New Mexico, including the greater portions of one town and two villages, and five post offices. Carpenter established on his new line eight stone astronomical monuments, and mile corners, marked by iron posts, wherever it was practicable; and whenever he found one of Darling’s mile comers or astronomical monuments, after noting its location, either destroyed it completely or obliterated the marks upon it. After the Commissioner’s approval of the Carpenter line the General Land Office ceased to recognize the Darling and Major-Preston line as the boundary between Colorado and New Mexico in so far as related to the public lands, as it had theretofore done, and for a time recognized the Carpenter line as the boundary. In 1908 Congress passed a Joint Resolution accepting the line of the Carpenter survey “ as the proper location of the thirty-seventh parallel and the true boundary line ” between the States of Colorado and Oklahoma and the Territory of New Mexico.9 This resolution was, however, vetoed by the President; and no further action was taken by Congress. After this veto by the President the General Land Office abandoned its recognition of the Carpenter line, and thereafter continued to recognize the Darling and Major-Preston line as the boundary. 9 60th Cong., 2d Sess., Sen. Doc. No. 604. 38 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. In 1912 the State of New Mexico was admitted into the Union, with the same northern boundary line as that of the Territory.10 In 1917 about forty miles of Darling’s original line included in the resurvey that had been made by the Colorado commissioner, were resurveyed and restored under the direction and with the approval of the Commissioner of the General Land Office. In addition to the foregoing matters the stipulation of the parties recites:—“ That, except as may otherwise be shown by the record in this case as now made, for more than thirty years the position of the Darling line, from the Macomb Monument to the . . . 109th meridian of longitude West from Greenwich, remained undisputed and the correctness of its technical execution unquestioned, and, as so established, the said Darling line has been recognized and acquiesced in by the United States, by the Territory and State of Colorado, by the Territory of New Mexico and by the State of New Mexico except as otherwise indicated by the bringing of this suit, and has been and is now recognized and accepted by the Land Department of the United States, in its surveys of the public domain, as the boundary line between Colorado and New Mexico from the Macomb Monument westward, except so far as may otherwise appear (if it does otherwise appear) by the record in this case; that from 1868 to the present time the Territory and later the State of Colorado . . . has claimed and exercised dominion and sovereignty, and now claims the same, over the territory down to the boundary as established by said Darling and no farther; that county lines have been formed, towns and settlements have grown up, school districts, election districts, voting precincts, and land districts and water districts have been created with reference to said 10 President’s Proclamation, Jan. 6, 1912, 37 Stat. 1723. See note 1, supra. NEW MEXICO v. COLORADO. 39 30 Opinion of the Court. line; public officers have been elected, property has been assessed and taxes levied and collected under the authority of the Territory and State of Colorado, and its courts of both civil and criminal jurisdiction have exercised jurisdiction in all places north of said Darling line and the Territory and State of New Mexico has exercised like jurisdiction in all places south of said line; that government postoffice[s] have been established as being in Colorado when north of said line and as in New Mexico when south of said line, and that public land surveys on both sides of said line have been closed thereon, lands have been disposed of, rights acquired and political boundaries in both Colorado and New Mexico have been fixed by reference to said fine. That since 1874 the Major survey and marking of the 37th parallel of North latitude . . . westward to the Macomb Monument has been the recognized and accepted South boundary of Colorado between said points and since the acceptance of the Preston survey, retracement and remarking of said line, in the year 1901, said line as remarked and retraced by Preston between said Macomb Monument and the Preston Monument, at the intersection of said parallel with the Cimarron Meridian, has been and now is the recognized and accepted boundary between Colorado and New Mexico at all points between said Monuments.” There is some evidence, of a very general nature, as to the relative correctness of the location of the line of the 37th parallel as established by Darling, Major and Preston, and by Carpenter. It may well be that neither is entirely correct. We have no occasion, however, to determine this question, or to settle the precise location of the parallel line as an original matter, since, upon the uncontradicted facts, it is entirely clear that the line of the parallel as surveyed and marked by Darling westwardly from the Macomb mounment, and by Major and Preston from the Macomb monument to the Preston 40 OCTOBER TERM, 1924. Opinion of the Court. 267 U.S. monument, must be now taken as the established boundary between the two States. There is no question as to the portion of this line between the Macomb monument and the Preston monument, since it is expressly agreed that since this line was surveyed by Major in 1874 and resurveyed by Preston in 1901 it “ has been and now is the recognized and accepted boundary between Colorado and New Mexico at all points between said Monuments.” The remainder of the line as surveyed and marked by Darling from the Macomb monument to the 109th meridian, must likewise be held to be the recognized and established boundary. From 1868, when Darling ran and marked the line of the 37th parallel, to 1919, when this suit was brought, a period of more than half a century, his line was recognized and acquiesced in, successively, as the boundary between the two Territories, between the State of Colorado and the Territory of New Mexico, and between the two States. In Missouri v. Iowa, 7 Howard 660, which involved the location of the boundary Une between the two States running with “ the Indian Boundary line,” it was held that governments are bound by the practical line that has been established as their boundary, although not precisely a true one; and that as the United States before either of the States had been admitted into the Union and after Missouri had been admitted but while Iowa still remained a Territory, had recognized and adopted the line of a certain survey as the “ Indian boundary line ” and was committed to that line as the boundary of Missouri, Iowa when admitted was bound by the recognition and adoption of that line by the United States, her predecessor, and could not be heard to disavow it as the boundary. So here, the United States, from 1868 to 1876, while still owning the public domain and having paramount jurisdiction as to territorial boundaries, recognized NEW MEXICO v. COLORADO. 41 30 Opinion of the Court. and adopted the Darling line as the true location of the parallel and the boundary between the two Territories, and thereafter, from 1876 to 1912, while retaining paramount jurisdiction as to New Mexico, recognized this lino as the boundary between the State of Colorado and the Territory of New Mexico; and the State of New Mexico on being admitted into the Union was bound by the previous recognition and adoption of this line by the United States, her predecessor, and cannot be heard to disavow the boundary thus recognized. The effect of this recognition of the Darling line by the United States was not impaired by the temporary recognition of the Carpenter line by the General Land Office, from 1904 to 1908. The United States had resumed its recognition of the Darling line several years before New Mexico was admitted as a State. Further, after Colorado had been admitted into the Union in 1876 its right to rely upon the line previously established could not be impaired by any subsequent action on the part of the United States. Thus, after the Land Department has surveyed and disposed of public lands, the rights therein acquired are not affected by corrective surveys subsequently made by the Department. United States v. Investment Co., 264 U. S. 206, 212, and cases there cited. And, independently of these matters, New Mexico is bound by its own recognition and adoption of the Darling line, from 1912 to the beginning of this suit, after its admission to statehood. Missouri v. Iowa, supra, p. 677. It results that the bill of New Mexico, praying the establishment of the Carpenter line, must be dismissed; and that, under the cross bill of Colorado, the Darling and Major-Preston line must be decreed to be the boundary between the two States. This boundary line should now be resurveyed and remarked by a commissioner or commissioners appointed by the court; such action to be subject to its approval. 42 OCTOBER TERM, 1924. Syllabus. 267 U. S. Missouri v. Iowa, supra, p. 679; Indiana v. Kentucky, 136 U. S»479, 519; Oklahoma v. Texas, 260 U. S. 606, 640. The parties may submit within thirty days the form of a decree to carry these conclusions into effect. Bill dismissed and decree directed under cross-bill. SWISS NATIONAL INSURANCE COMPANY, LIMITED v. THOMAS W. MILLER, AS ALIEN PROPERTY CUSTODIAN, AND FRANK WHITE, AS TREASURER OF THE UNITED STATES. APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. No. 132. Argued November 18, 1924.—Decided February 2, 1925. 1. Where a corporation was an “enemy” within the definition of the Trading with the Enemy Act because doing business in Germany, the enemy status of its property then seized in this country was not changed by a subsequent cessation of such business. P. 44. 2. The fact that an enemy corporation ceased to be an enemy when the war was ended by the Joint Resolution of July 2, 1921, did not entitle it to a return of its seized property; for, by § 12 of the Trading with the Enemy. Act, such claims were to be settled by future direction of Congress. Id. 3. Clause 1 of § 9-b of the Trading with the Enemy Act, as amended June 5, 1920, c. 241, 41 Stat. 977, which provides for return of seized enemy property whose owner was and remains a “ citizen or subject ” of a nation other than Germany, Austria, Hungary or Austria Hungary, cannot be construed as including corporations. So held in view of the use of “ citizen or subject ” in other clauses of the section relating only to natural persons, and more particularly because the 6th clause of the same section makes a special classification of partnerships, associations and corporations, allowing return of property if they were and remain entirely owned by subjects or citizens of nations other than those above mentioned. P. 45. 4. Whether the terms “ citizen or subject ” are broad enough to include corporations depends upon the intent to be gathered from the legislation in which they occur. P. 46. SWISS INSURANCE CO. v. MILLER. 43 42 Opinion of the Court. 5. Clause 11 of § 9-b of the Trading with the Enemy Act, added by the amendment of March 4, 1923, c. 285, 42 Stat. 1511, amounts to a legislative construction of clause 1, as above construed. P. 48. 53 App. D. C. 173 (289 Fed. 571) affirmed. Appeal from a decree of the Court of Appeals of the District of Columbia affirming a decree of the Supreme Court of the District which dismissed the appellant’s bill against the Alien Property Custodian and the Treasurer of the United States, to recover securities seized and held under the Trading with the Enemy Act. Mr. Hoke Smith, for appellant. • Mr. Merrill E. Otis, Special Assistant to the Attorney General, with whom Mr. Solicitor General Beck was on the brief, for appellees. Mr. Chief Justice Taft delivered the opinion of the Court. This is an appeal from the Court of Appeals of the District of Columbia under Section 250 of the Judicial Code. The Swiss National Insurance Company filed a bill in equity against the Alien Property Custodian and the Treasurer of the United States in the Supreme Court of the District to recover securities to the value of about one million dollars. These it had before the War deposited in the various state treasuries because required by the state laws as a condition of doing insurance therein. The Alien Property Custodian had seized them in November, 1918, as property of an enemy, under the definition of Section 2, par. (a) of the Trading with the Enemy Act, approved October 6, 1917, c. 106, 40 Stat. L. 411, that the word “ enemy ” should be deemed to mean and include for the purpose of the Act “ any . . . corporations incorporated within any country other than the United States and doing business within” the “territory (including 44 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. that occupied by the military and naval forces) of any nation with which the United States is at war.” The plaintiff’s petition admitted that at the time of the seizure the plaintiff was doing business in Germany, and was then an enemy of the United States under the definition, and that the seizure was lawful. It is further conceded in argument that the stock of the plaintiff corporation was largely held by Germans, and a failure to aver the contrary in the petition makes this fact a part of the case on the motion of defendants to dismiss the bill. The grounds stated in the bill for its recovery of the securities were threefold—first, that since the seizure the company had ceased to do business in Germany; second,» that the war had been officially declared ended, and, third, that by virtue of the amendment of the Trading with the Enemy Act, approved June 5, 1920, c. 241, 41 Stat. 977, the plaintiff became expressly entitled to the recovery sought. The motion of defendants was granted, and the bill dismissed. The decree of the District Supreme Court was affirmed by the District Court of Appeals. The first contention, that because the company had ceased to do business in Germany after the seizure the Alien Property Custodian lost his right to continue to hold the property, can not be sustained. A change like this could not take away the status of the seized property as enemy property. The withdrawal from business in Germany might well involve a transfer of something of value from the plaintiff to enemy citizens or subjects and strengthen the enemy resources. Second, it is argued that as the War ended by Joint Resolution of July 2, 1921, 42 Stat. 105, the plaintiff thereby ceased to be an enemy and was entitled to a return of its property without express legislation giving such a right. It is clear from Section 12 of the Trading with the Enemy Act, 40 Stat. 411, 424, that Congress did SWISS INSURANCE CO. v. MILLER. 45 42 Opinion of the Court. not intend that such a right should exist. One clause of that section provides: “After the end of the War any claim of any enemy or of an ally of enemy to any money or other property received and held by the Alien Property Custodian or deposited in the United States Treasury, shall be settled as Congress shall direct.” The argument for the appellant is that when the War ended, it ceased to be an enemy and so the words quoted do not apply to it. This is an impossible construction of the section. After the end of the War, there could be no enemy in the sense in which the appellant argues. The word “ enemy ” used in Section 12 of course refers to the person who or corporation which fulfilled the definition of an enemy during the war. It follows that the right of the appellant to recover its property must depend on the Congressional direction subsequent to the original Act. This brings us then to the amendment to the Trading with the Enemy Act of June 5, 1920, 41 Stat. 977. The third argument of the appellant is then directed to the question whether the appellant comes within the classes of enemies given the right to recover their property from the Alien Property Custodian by the 1920 amendment. Section 9, paragraph a, of that amendment provides for a return by order of the President to a person not an enemy claiming an interest in property seized by the Custodian, and, failing such order, allows a suit in equity to recover the property or money due. Par. b gives a similar opportunity to anyone who is the owner of property seized and held by the Custodian, if the President finds the owner to have been in one of eight defined classes at the time of the seizure. The first class among these is: “A citizen or subject of any nation or State or free city other than Germany or Austria or Hungary or Austria-Hungary, and [who] is at the time of the return 46 OCTOBER TERM, 1924. Opinion of the Court. 267U.S. of such money or other property hereunder a citizen or subject of any such nation or State or free city ”. The sixth class is this: “A partnership, association, or other unincorporated body of individuals outside the United States, or a corporation incorporated within any country other than the United States, and [which] was entirely owned at such time by subjects or citizens of nations, States or free cities other than Germany or Austria or Hungary or Austria-Hungary and is so owned at the time of the return of its money or other property hereunder.” It is urged for appellant that it is a citizen of Switzerland and is thus included with those favored in the first class. Section 2 of the original Trading with the Enemy Act approved October 6, 1917, c. 106, 40 Stat. 411, and unrepealed provides that: “ The word ‘ person ’ as used herein shall be deemed to mean an individual, partnership, association, company or other unincorporated body of individuals, or corporation or body politic” and the word 11 enemy ” is declared to be equally inclusive. But there is in the Act and its amendments no such definition of the words citizen or subject. The term citizen or subject may be broad enough to include corporations of the country whose citizens are in question. Paul v. Virginia, 8 Wall. 168; Selover v. Walsh, 226 U. S. 112; Western Turf Association v. Greensburg, 204 U. S. 359. Whether it is so inclusive in any particular instance depends upon the intent to be gathered from the context and the general purpose of the whole legislation in which it occurs. United States v. Northwestern Express Co., 164 U. S. 686, 689. The first clause of paragraph b refers to a citizen or subject who may change his nationality which could hardly refer to a corporation. The second and third clauses describing the 2nd and 3rd classes refer to married women and obviously the term citizen or subject in them includes only natural persons. Clause 4 SWISS INSURANCE CO v. MILLER. 47 42 Opinion of the Court. concerns a citizen or subject of Germany accredited to the United States as the wife or child of a diplomatic officer, of course, a natural person. Clause 5 describes a citizen or subject transferred after arrest to the custody of the War Department evidently only a natural person. In clause 6, the subjects or citizens therein referred to are the owners of partnerships, associations or incorporated bodies indicating that they, too, are natural persons. The context would, therefore, seem to show that the words are not used in the paragraph to include more than individuals. Where, as in the amendment to Section 9 of the year before, July 11, 1919, c. 6, 41 Stat. 35, a proviso was intended to include individuals and corporations, the word persons is used in connection with the words citizens or subjects and thus no doubt is left of the inclusive effect of the proviso. The foregoing inferences as to the narrower scope of the term citizen in paragraph b are not conclusive though they are persuasive. But the strongest and to us the convincing argument that the language of clause 1 of par. b was not intended to include corporations is the especial mention of partnerships, associations and corporations in clause 6 as a different classzfrom that of clause 1 of the same section. That class is partnerships, associations, corporations, who were enemies under the Act because of the business they did in Germany or Austria-Hungary, but whose owners as partners, associates or stockholders were not enemies either at the time of the sequestration or at the time of the return. It was evidently intended by Section 9-b not to allow any individual enemies to be favored unless they as women only acquired their status as enemies because of marriage to a male enemy, or unless they were diplomatic representatives of the enemy countries, or members of their families, and the property involved was within 48 OCTOBER TERM, 1924. Opinion of the Court. 267 U.S. the United States because of their diplomatic service, or unless they were enemies interned in the United States during the War and were living in the United States at the time of the return of their property. There was an obvious purpose to exclude all other individual Germans or Austrians from the privileges of the section and it was to carry out this exclusion that clause 6 was drafted to cover especially the subject of corporations, partnerships and associations in which Germans or Austrians should have no interest. It was of a piece with the subsequent provision of the 5th section of the Joint Resolution of July 2, 1921, ending the War (42 Stat* 105, 106, c. 40), designed to retain in custody the property of all German and Austrian nationals deposited with the Custodian in order to aid this country and its nationals in collecting claims for losses against the two enemy governments. The design was further subsequently revealed, though not so closely adhered to, in clause 11, added to Section 9, par. b, by the second amendment to the Trading with the Enemy Act (42 Stat. 1511, 1513, c. 285), by which property could be returned to non-German or non-Aus-trian corporations provided that Germans or Austrians did not own fifty per cent, of the stock. Clause 11 of the second amendment was in fact a legislative construction of clause 1 of par. b of Section 9 in the amendment of 1920 as we construe it, because otherwise and according to the contention of the defendants, a non-German or non-Austrian corporation though doing business in Germany or Austria could, under clause 1 and without clause 11, recover its property whatever its stock ownership. Had no clause 6 been inserted in the Act, possibly the words citizens or subjects of clause 1 might have been held to include corporations; but, with a specification of them as a separate class, it would violate an obviously sound rule to include them by construction in clause 1 also as citizens or subjects. SWISS INSURANCE CO. v. MILLER. 49 42 McReynolds, J., dissenting. Much has been said in respect to the intent of Congress to be liberal in this series of acts as shown by the correspondence of the Attorney General and his subordinates with the Congressional Committees; but nothing has been called to our attention that seems to us to have real significance in respect to the exact point in this discussion. In order to supply some reason or occasion for clause 6, if clause 1 is to be held to include corporations as citizens or subjects, it is suggested for appellants that the clause was intended to cover German and Austrian corporations entirely owned by citizens of the United States or of other countries than Germany or Austria. We think this a far fetched argument to explain the very general words of this clause when such a purpose might have been easily attained by specific provision for such exceptional instances. Under the appellant’s construction of clause 6, the improbable overlapping duplication of clause 1 and clause 6 is so manifest that we think the construction must be rejected. We concur, therefore, with the conclusion of the Court of Appeals, and the District Supreme Court. Affirmed. Mr. Justice McKenna participated in the consideration of this case and concurred in the opinion prior to his resignation. The separate opinion of Mr. Justice McReynolds. This cause requires interpretation of Section 9, Trading with the Enemy Act, approved October 6, 1917, c. 106, 40 Stat. 411, 419, as amended by the Act of June 5, 1920, c. 241, 41 Stat. 977, copied below.* *Sec. 9. (a) That any person not an enemy or ally of enemy claiming any interest, right, or title in any money or other property which may have been conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian or seized by him hereunder and held by him or by the Treasurer of the United States, or to whom 42684°—25-------4 50 OCTOBER TERM, 1924. McReynolds, J., dissenting. 267 U. S. Section 2 of the original Act, which has remained unchanged, declares— “ The word ‘ person/ as used herein, shall be deemed to mean an individual, partnership, association, company or other unincorporated body of individuals, or corporation or body politic; ” and that the word “enemy ” shall be deemed to mean— “(a) Any individual, partnership, or other body of individuals, of any nationality, resident within the territory (including that occupied by the military and naval forces) of any nation with which the United States is at war [or an ally of such nation], or resident outside the United any debt may be owing from an enemy or ally of enemy whose property or any part thereof shall have been conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian or seized by him hereunder and held by him or by the Treasurer of the United States may file with the said custodian a notice of his claim under oath and in such form and containing such particulars as the said custodian shall require; and the President, if application is made therefor by the claimant, may order the payment, conveyance, transfer, assignment, or delivery to said claimant of the money or other property so held by the Alien Property Custodian or by the Treasurer of the United States, or of the interest therein to which the President shall determine said claimant is entitled: Provided, That no such order by the President shall bar any person from the prosecution of any suit at law or in equity against the claimant to establish any right, title, or interest which he may have in such money or other property. If the President shall not so order within sixty days after the filing of such application or if the claimant shall have filed the notice as above required and shall have made no application to the President, said claimant may, at any time before the expiration of six months after the end of the war institute a suit in equity in the Supreme Court of the District of Columbia or in the district court of the United States for the district in which such claimant resides, or, if a corporation, where it has its principal place of business (to which suit the Alien Property Custodian or the Treasurer of the United States, as the case may be, shall be made a party defendant), to establish the interest, right, title, or debt so claimed, and if so established the court shall order the payment, conveyance, transfer, SWISS INSURANCE CO. v. MILLER. 51 42 McReynolds, J., dissenting. States and doing business within such territory, and any corporation incorporated within such territory of any nation with which the United States is at war [or an ally of such nation] or incorporated within any country other than the United States and doing business within such territory. . . For many years appellant has been incorporated under the laws of Switzerland. Prior to 1917 and continuously thereafter until 1922 it did an insurance business in Germany. From 1910 until November 18, 1918, it carried on the same business within several of our States, and as security for its obligations deposited many domestic assignment, or delivery to said claimant of the money or other property so held by the Alien Property Custodian or by the Treasurer of the United States or of the interest therein to which the court shall determine said claimant is entitled. If suit shall be so instituted, then such money or property shall be retained in the custody of the Alien Property Custodian, or in the Treasury of the United States, as provided in this Act, and until any final judgment or decree which shall be entered in favor of the claimant shall be fully satisfied by payment or conveyance, transfer, assignment, or delivery by the defendant, or by the Alien Property Custodian, or Treasurer of the United States on order of the court, or until final judgment or decree shall be entered against the claimant or suit otherwise terminated. (b) In respect of dll money or other property conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian or seized by him hereunder and held by him or by the Treasurer of the United States, if the President shall determine that the owner thereof, at the time such money or other property was required to be so conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian or at the time when it was voluntarily delivered to him or was seized by him was— (1) A citizen or subject of any nation or State or free city other than Germany or Austria or Hungary or Austria-Hungary, and is at the time of the return of such money or other property hereunder a citizen or subject of any such nation or State or free city; or (2) A woman who at the time of her marriage was a subject or citizen of a nation which has remained neutral in the war or of a nation which was associated w’ith the United States in the prosecu- 52 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. bonds—a million dollars. On the latter date—a week after the armistice—the Alien Property Custodian took possession of these bonds, and either he or the Treasurer of the United States now holds them. Claiming the sequestered securities or their proceeds under Section 9, Subsection (b), appellant began this proceeding in the Supreme Court, District of Columbia, November 28, 1921. That court held the corporation could not prevail because subjects of Germany held some of its stock; and upon motion dismissed the bill. The Court of Appeals affirmed the decree. The corporation came within the term “ enemy ” solely because of its business within Germany; but tion of said war, and who prior to April 6, 1917, intermarried with a subject or citizen of Germany or Austria-Hungary and that the money or other property concerned was not acquired by such woman either directly or indirectly from any subject or citizen of Germany or Austria-Hungary; or (3) A woman who at the time of her marriage was a citizen of the United States (said citizenship having been acquired by birth in the United States), and who prior to April 6, 1917, intermarried with a subject or citizen of Germany or Austria-Hungary and that the money or other property concerned was not acquired by such woman either directly or indirectly from any subject or citizen of Germany or Austria-Hungary; or (4) A citizen or subject of Germany or Austria or Hungary or Austria-Hungary and was, at the time of the severance of diplomatic relations between the United States and such nations, respectively, accredited to the United States as a diplomatic or consular officer of any such nation, or the wife or minor child of such officer, and that the money or other property concerned was within the territory of the United States by reason of the service of such officer in such capacity; or (5) A. citizen or subject of Germany or Austria-Hungary, who by virtue of the provisions of sections 4067, 4068, 4069, and 4070 of the Revised Statutes, and of the proclamations and regulations thereunder, was transferred, after arrest, into the custody of the War Department of the United States for detention during the war and is at the time of the return of his money or other property hereunder ■Jiving within the United States; or 42 SWISS INSURANCE CO. v. MILLER. 53 McReynolds, J., dissenting. it is admitted that enemy subjects owned and controlled a majority of the capital stock. Apparently the sequestration was permissible—its propriety after cessation of hostilities is not for our determination. As an incorporated citizen or subject of Switzerland appellant claims to come within Paragraph (1) of the amended Act— “(1) A citizen or subject of any nation or State or free city other than Germany or Austria or Hungary or Austria-Hungary, and is at the time of the return of such money or other property hereunder a citizen or subject of any such nation or State or free city.” (6) A partnership, association, or other unincorporated body of individuals outside the United States, or a corporation incorporated within any country other than the United States, and was entirely owned at such time by subjects or citizens of nations, States, or free cities other than Germany or Austria or Hungary or Austria-Hungary and is so owned at the time of the return of its money or other property hereunder; or (7) The Government of Bulgaria or Turkey, or any political or municipal subdivision thereof; or (8) The Government of Germany or Austria or Hungary or Austria-Hungary, and that the money or other property concerned was the diplomatic or consular property of such Government. [Or] (9) An individual who was at such time a citizen or subject of Germany, Austria, Hungary, or Austria-Hungary, or who is not a citizen or subject of any nation, State, or free city, and that such money or other property, or the proceeds thereof, if the same has been converted, does not exceed in value the sum of $10,000, or although exceeding in value the sum of $10,000 is nevertheless susceptible of division, and the part thereof to be returned hereunder does not exceed in value the sum of $10,000: Provided, That an individual shall not be entitled, under this paragraph, to the return of any money or other property owned by a partnership, association, unincorporated body of individuals, or corporation at the time it was conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian, or seized by him hereunder; or (10) A partnership, association, other unincorporated body of individuals, or corporation, and that it is not otherwise entitled to the 54 OCTOBER TERM, 1924. McReynolds, J., dissenting. 267 U. S. On the other hand the insistence is that although the words “ citizen or subject ” often include corporations as well as natural persons, this is not necessarily true but depends always upon the intent disclosed by context and other accompanying circumstances. Further, that although corporations would normally fall within the words of Paragraph (1), without more, the contrary intent is disclosed and they are excluded therefrom by the provisions touching certain corporations found in Paragraph (6)— “A partnership, association, or other unincorporated body of individuals outside the United States, or a return of its money or other property, or any part thereof, under this section, and that such money or other property, or the proceeds thereof, if the same has been converted, does not exceed in value the sum of $10,000, or although exceeding in value the sum of $10,000, is nevertheless susceptible of division, and the part thereof to be returned hereunder does not exceed in value the stun of $10,000: Provided, That no insurance partnership, association, or corporation, against which any claim or claims may be filed by any citizen of the United States with the Alien Property Custodian within sixty days after the time this paragraph takes effect, whether such claim appears to be barred by the statute of limitations or not, shall be entitled to avail itself of the provisions of this paragraph until such claim or claims are satisfied; or (11) A partnership, association, or other unincorporated body of individuals, having its principal place of business within any country other than Germany, Austria, Hungary, or Austria-Hungary, or a corporation, organized or incorporated within any country other than Germany, Austria, Hungary, or Austria-Hungary, and that the control of, or more than 50 per centum of the interests of voting power in, any such partnership, association, other unincorporated body of individuals, or corporation, was at such time, and is at the timp. of the return of any money or other property, vested in citizens or subjects of nations, States, or free cities other than Germany, Austria, Hungary or Austria-Hungary: Provided, however, That this subsection shall not affect any rights which any citizen or subject may have under paragraph (1) of this subsection;— Then the President, without any application being made therefor, may order the payment, conveyance, transfer, assignment, or delivery SWISS INSURANCE CO. v. MILLER. 55 42 McReynolds, J., dissenting. corporation incorporated within any country other than the United States, and was entirely owned at such time by subjects or citizens of nations, States, or free cities other than Germany or Austria or Hungary or Austria-Hungary and is so owned at the time of the return of its money or other property hereunder.” Also, that the purpose to exclude corporations from Paragraph (1) is further accentuated by the legislative construction disclosed by Paragraph (11), adopted March 4, 1923, c. 285, 42 Stat. 1511, 1513— “(11) A partnership, association, or other unincorporated body of individuals, having its principal place of of such money or other property held by the Alien Property Custodian or by the Treasurer of the United States, or of the interest therein to which the President shall determine such person entitled, either to the said owner or to the person by whom said property was conveyed, transferred, assigned, delivered, or paid over to the Alien Property Custodian: Provided, That no person shall be deemed or held to be a citizen or subject of Germany or Austria or Hungary or Austria-Hungary for the purposes of this section, even though he was such citizen or subject at the time first specified in this subsection, if he has become or shall become, ipso facto or through exercise of option, a citizen or subject of any nation or State or free city other than Germany, Austria, or Hungary, (first) under the terms of such treaties of peace as have been or may be concluded subsequent to November 11, 1918, between Germany or Austria or Hungary (of the one part) and the United States and/or three or more of the following-named powers: The British Empire, France, Italy, and Japan (of the other part), or (second) under the terms of such treaties as have been or may be concluded in pursuance of the treaties of peace aforesaid between any nation, State, or free city (of the one part) whose territories, in whole or in part, on August 4, 1914, formed a portion of the territory of Germany or Austria-Hungary and the United States and/or three or more of the following-named powers: The British Empire, France, Italy, and Japan (of the other part). For the purposes of this section any citizen or subject of a State or free city which at the time of the proposed return of money or other property of such citizen or subject hereunder forms a part of the territory of any one of the following nations: Germany, Austria, or Hungary, shall be deemed 56 OCTOBER TERM, 1924. McReynolds, J., dissenting. 267 U. S. business within any country other than Germany, Austria, Hungary, or Austrian-Hungary, or a corporation, organized or incorporated within any country other than Germany, Austria, Hungary, or Austria-Hungary, and that the control of, or more than 50 per centum of the interests or voting power in, any such partnership, association, other unincorporated body of individuals, or corporation, was at such time, and is at the time of the return of any money or other property, vested in citizens or subjects of nations, States, or free cities other than Germany, Austria, Hungary or Austria-Hungary: Provided, however, That this Subsection shall not affect any rights which any citizen or subject may have under Paragraph (1) of this subsection.” to be a citizen or subject of such nation. And the receipt of the said owner or of the person by whom said property was conveyed, transferred, assigned, delivered, or paid over to the Alien Property Custodian shall be a full acquittance and discharge of the Alien Property Custodian or the Treasurer of the United States, as the case may be, and of the United States in respect to all claims of all persons heretofore or hereafter claiming any right, title, or interest in said property, or compensation or damages arising from the capture of such property by the President or the Alien Property Custodian: Provided further, however, That except as herein provided no such action by the President shall bar any person from the prosecution of any suit at law or in equity to establish any right, title, or interest which he may have therein. (c) Any person whose property the President is authorized to return under the provisions of subsection (b) hereof may file notice of claim for the return of such property, as provided in subsection (a) hereof, and thereafter may make application to the President for allowance of such claim and/or may institute suit in equity to recover such property, as provided in said subsection, and with like effect. The President or the court, as the case may be, may make the same determinations with respect to citizenship and other relevant facts that the President is authorized to make under the provisions of subsection (b) hereof. (d) Whenever a person, deceased, would have been entitled, if living, to the return of his money or other property hereunder, then 42 SWISS INSURANCE CO. v. MILLER. McReynolds, J., dissenting. 57 The proviso of Paragraph (11) sufficiently repels the suggestion that it restricts Paragraph (1)—“This subsection [paragraph] shall not affect any rights which any citizen or subject may have under Paragraph (1) of this subsection.” Reporting, June 21, 1917, (H. Rep. 85, 65th Cong., 1st Sess.), the House Committee on Interstate and Foreign Commerce recommended passage of the original Trading with the Enemy Act, and said— “The chief objects of this bill are (1) to recognize and apply concretely, subject to definite modifications, the principle and practice of international law interdicting trade in time of war, and (2) to conserve and utilize upon his legal representative may proceed for the return of such property as provided in subsection (a) hereof: Provided, however, That the President or the court, as the case may be, before granting such relief shall impose such conditions by way of security or otherwise, as the President or the court, respectively, shall deem sufficient to insure that such legal representative will redeliver to the Alien Property Custodian such portion of the money or other property so received by him as shall be distributable to any person not eligible as a claimant under subsections (a) or (c) hereof. (e) No money or other property shall be returned nor any debt allowed under this section to any person who is a citizen or subject of any nation which was associated with the United States in the prosecution of the war, unless such nation in like case extends reciprocal rights to citizens of the United States; nor in any event shall a debt be allowed under this section unless it was owing to and owned by the claimant prior to October 6, 1917, and as to claimants other than citizens of the United States unless it arose with reference to the money or other property held by the Alien Property Custodian or Treasurer of the United States hereunder. (f) Except as herein provided, the money or other property conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian, shall not be liable to lien, attachment, garnishment, trustee process, or execution, or subject to any order or decree of any court. (g) This section shall not apply, however, to money paid to the Alien Property Custodian under section 10 hereof. 58 OCTOBER TERM, 1924. McReynolds, J., dissenting. 267 U. S. a basis of practical justice enemy property found within the jurisdiction of the United States. . . . Citizens cannot be permitted directly or indirectly to augment the material resources of the enemy by commercial intercourse, and the necessity for this interdiction is more obvious today than at any period of the world’s history. Never were the industrial, commercial and financial resources of belligerent nations so vital to the success of war as now. It is not extravagant to affirm that the effective organization of these resources is more likely to determine the result of the present conflict than armies and navies. Therefore, everything reasonably possible should be done to prevent our enemy from reaping the advantages of commercial transactions with the people of the United States. To summarize, the purpose of the bill is not to create new international rules or practices, but to define and mitigate them.” In a favorable report on the same measure, August 31, 1917, (S. Rep. 113, 65th Cong., 1st Sess), the Senate Committee on Commerce said— “ The purpose of this bill is to mitigate the rules of law which prohibit all intercourse between the citizens of warring nations, and to permit, under careful safeguards and restrictions, certain kinds of business to be carried on. It also provides for the care and administration of the property and property rights of enemies and their allies in this country pending the war. The spirit of the Act is to permit such business intercourse as may be beneficial to citizens of this country, under rules and regulations of the President, which will prevent our enemies and their allies from receiving any benefits therefrom until after the war closes, leaving to the courts and to future action of Congress the adjustment of rights and claims arising from such transactions. Under the old rule warring nations did not respect the property rights of their enemies, but a more enlightened opinion prevails 42 SWISS INSURANCE CO. v. MILLER. McReynolds, J., dissenting. 59 at the present time, and it is now thought to be entirely proper to use the property of enemies without confiscating it; also to allow such business as fire insurance, issuance and use of patents, etc., to be carried on with our enemies and their allies, provided that none of the profits arising therefrom shall be sent out of this country until the war ends.” The intent to conserve and utilize enemy property upon a basis of practical justice and to prevent the owners from receiving benefits therefrom until after the war, but without ultimate confiscation, is clear. And, where the words permit, the statute and its amendments should be liberally interpreted to that end. By executive orders the President vested certain wide powers, conferred upon him by the Trading with the Enemy Act, in the Alien Property Custodian; and that officer diligently proceeded to sequestrate property which, as he held, belonged to enemies. See Central Trust Co. v. Garvan, 254 U. S. 554, 567; Stoehr v. Wallace, 255 U. S. 239, 245; Commercial Trust Co. n. Miller, 262 U. S. 51, 56. Reporting to the President, February 22, 1919, (Senate Doc., vol. 8, pp. 9, 13) the Custodian said— “At the close of business on February 15, 1919, 35,400 reports of enemy property had been received. The property of each enemy person is treated in the office as a trust and administered by an organization which is built upon the general lines of a trust company. The number of separate trusts now being administered amounts to 32,296 [at one time, it is said, they amounted to 50,000— Senate Hearing, S. 3852, July 27, 1922, p. 21], and have an aggregate value of $502,945,724.75. About 9,000 of these cases are covered by reports in which the administration has not yet reached the stage of valuation. When the entire number of trusts reported shall have been finally opened on the books and the readjustment of values consequent upon appraisal shall have been com- 60 OCTOBER TERM, 1924. McReynolds, J., dissenting. 267U.S. pleted, it is safe to say that the total value of the enemy property in the hands of the Alien Property Custodian will reach $700,000,000. . . . “ The legislative intent was plainly that all enemy property, concealed as well as disclosed, should be placed entirely beyond the control or influence of its former owners, where it cannot eventually yield aid or comfort to the enemy directly or indirectly. Until the peace terms are finally signed and the ultimate disposition of enemy property determined by the act of Congress, it shall be the firm purpose of the Alien Property Custodian to carry out the will of the Congress in respect thereto. Neither litigation nor threat of litigation ought to be interposed to stay that purpose.” During hostilities and thereafter he sequestered the property of enemy subjects, of citizens of the United States, of associated nations and of neutrals, found in the Philippine Islands, the Hawaiian Islands, the Virgin Islands, Porto Rico, and throughout continental United States. It included practically all forms of tangible and intangible assets—industrial plants, chemical and woolen mills, steamship lines, banks, land and cattle companies, salmon factories, mines of gold, silver and other metals, corporate bonds and shares of stock, real estate, trusts represented by securities, liquid assets, thousands of patents (5700), trade-marks, prints, labels and copyrights, etc., etc. The 'individual items varied in value from one dollar to thousands, even millions of dollars. The enactment was novel, and gave rise to many troublesome questions of fact and law. After the conclusion of hostilities insistent demands were made for return of the property belonging to citizens of the United States, of associated powers, of neutrals, and of the states partly composed of territory detached from Germany or Austria. The Act of July 11, 1919, c. 6, 41 Stat. 35, added to Section 9 a proviso which gave right of recovery to sub- SWISS INSURANCE CO. v. MILLER. 61 42 McReynolds, J., dissenting. jects of associated nations whose property had been sequestrated solely because of residence within territory occupied by enemy forces, e. g., Belgium and Northern France. There were several hundred cases of French and Belgian property taken solely because the owners were in such occupied territory. [H. Comm. Hearings 1920, vol. 232-1, part 8, p. 11.] This amendment (copied in the margin *) applied to “ a person who was an enemy or ally of enemy ” and “ is a citizen or subject of such associated nation.” The words“ citizen or subject ” include “ person,” and “ person,” according to the statutory defi- * Provided, however, That in respect of all property heretofore determined by the President to have been held for, by, on account of, or on behalf of, or for the benefit of a person who was an enemy or ally of enemy, if the President, after further investigation, shall determine that such person was an enemy or ally of enemy solely by reason of residence in that portion of the territory of any nation associated with the United States in the prosecution of the war which was occupied by the military or naval forces of Germany or Austria-Hungary, or their allies, and that such person is a citizen or subject of such associated nation, then the President, without any application being made therefor, may order the payment, conveyance, transfer, assignment, or delivery of such money or other property held by the Alien Property Custodian, or by the Treasurer of the United States, or of the interest therein to which the President shall determine such person entitled, either to the said enemy or to . the person by whom said property was conveyed, transferred, assigned, delivered or paid over to the Alien Property Custodian. And the receipt of the said enemy or of the person by whom said property was conveyed, transferred, assigned, or delivered to the Alien Property Custodian, shall be a full acquittance and discharge of the Alien Property Custodian or the Treasurer of the United States as the case may be, and of the United States in respect of all claims of all persons heretofore or hereafter claiming any right, title, or interest in said property, or compensation or damages arising from the capture of such property by the President or the Alien Property Custodian: Provided further, however, That except as herein provided no such action by the President shall bar any person from the prosecution of any suit at law or in equity to establish any right, title, or interest which he may have therein. 62 OCTOBER TERM, 1924. McReynolds, J., dissenting. 267 U. S. nition, includes “ corporation.” The same meaning of a citizen or subject ” should be accepted wherever they occur in the section. March 31, 1920, the Attorney General advised the House Committee on Interstate and Foreign Commerce (H. Rep. 1089, 66th Cong., 2nd Sess.)— “ The Secretary of State has written to me that this Government has recognized that the provinces of Alsace and Lorraine have now become a part of France and that, in his opinion, the continued retention by the Alien Property Custodian of property of residents of these provinces who have acquired French nationality under the Versailles treaty of peace cannot fail to have an unfavorable effect upon the relations of the United States and France. The Secretary of State expressed the view that the Trading with the Enemy Act should be so amended as to allow the return of this property. He suggested that I recommend to Congress an amendment .to this effect. “ The Secretary of State also points out that this Government has recognized the Republics of Poland and Czechoslovakia and the Kingdom of the Serbs, Croats and Slovenes, and that for this Government to retain the property of persons who are citizens of those countries and resident within their borders would have a prejudicial effect upon the relations between the countries in question and the United States. The Secretary of State’s recommendation was that any amendment to the Trading with the Enemy Act should be broad enough to authorize the return of property belonging to citizens of these countries. He also felt that the amendment should cover the cases of residents of territory which may be allotted, under treaties yet to become effective, to an allied or associated power (as, for example, Trieste), as well as territory which, under plebiscites to be held in accordance with treaty provisions, may be allotted to a neutral country (as, for example, that portion of Schleswig which may be allotted to Denmark). 42 SWISS INSURANCE CO. v. MILLER. McReynolds, J., dissenting. 63 “ I am herewith forwarding to you a draft of a bill to amend Section 9 of the Trading with the Enemy Act, which I believe will provide the relief requested by the Secretary of State.” May 5, 1920 (H. Rep. 1089, 66th Cong., 2nd Sess.), the Secretary of State wrote to the Attorney General— “ I have the honor to refer to my letter of March 23, 1920, concerning an amendment to Section 9 of the Trading with the Enemy Act, authorizing the release of property taken over by the Alien Property Custodian belonging to enemy persons who, by virtue of the peace treaties, become citizens, subjects or nationals of countries other than Germany, Austria or Hungary. In addition to the classes of property referred 8. Co. v. West India S. S. Co. 169 Fed. 275; (c) voyage charter, or contract of affreightment; Texas Co. v. Hogarth Shipping Co. 256 U. S. 619. The demise and ordinary time charter are alike in that, under both forms, the vessel is let or hired for an agreed period of time, and hire is to be paid, at a specified rate, from the beginning to the end of the charter period, unless there is some express exception providing for suspension of hire. The principal difference between the two forms is that Under a demise the ship’s officers and crew become, even in matters of navigation and care of the vessel, the agents of the charterer, while under an ordinary time charter the officers and crew remain the agents of the owner with respect to the navigation and care of the ship. The third class referred to is obviously not involved in the case at bar. The error in the appellant’s argument lies in its failure to recognize the fact that even if the charters here did not constitute a demise (which the lower court held they did), they must still fall in the second class, as time charters; and, in either class, the contract is for the use of the vessels UNITED STATES v. CORNELL S. S. CO. 285 281 Opinion of the Court. for an agreed period of time, with the corresponding promise to pay hire from the beginning to the end of the agreed period. Even under ordinary time charters, the law requires continuous payment of hire from beginning to end of the entire period, where the charters do not contain any exceptions. Carver on Carnage of Goods by Sea (6th Ed.), p. 741; Scrutton on Charter Parties and Bills of Lading (10th Ed.), 382; Atlantic Fruit Co. v. Solari, 238 Fed. 217; The Santona, 152 Fed. 516; Havelock v. Geddes, 10 East. 555; Ripley v. Scaife, 5 B. & C. 167. In the absence of a specific exception in the contract, the only excuse which the charterer could offer for the cessation of hire, even under a time charter not constituting a demise, would be a frustration of the adventure. The Frankmere, 262 Fed. 819, 278 Fed. 139; The Clave-resk, 264 Fed. 276; The Isle of Mull, 278 Fed. 131. The Government cannot now support its position by a belated suggestion that it is entitled to an off-set on account of alleged negligence of the owner of the tugs Mr. Justice McReynolds delivered the opinion of the Court. This proceeding was instituted to recover the sum of deductions made by the United States from monthly bills rendered by appellee for the hire of tugs. During 1917 and 1918, under informal charters evidenced by letters, appellee hired twelve tugs to the United States for use in and about New York Harbor. The specified price was “ for each and every day of the charter period,” and the owner agreed “ to furnish everything for these tugs with the exception of coal and water which you are to furnish.” The vessels reported for service in accordance with the several contracts and the plaintiff rendered monthly bills 286 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. at the per diem rate stated therein. Those for December, 1917, were paid as rendered. Thereafter deductions were made which amounted in all to $24,822.48. They were based upon the vessels’ logs, kept by their captains and engineers as directed by the Army Transport Service, and were entered if a boat reported with a short crew, or not in condition to perform the service required, or if too long a time was consumed in taking on supplies. The owner saved its rights through proper claims and protests. While in the service of the United States the “ Ira M. Hedges ” sank. It was raised and repaired by and at the expense of the owner, and was subsequently used by them. One of the challenged deductions was for loss of time incident to this accident. “ During the time when the tugs hereinbefore mentioned were in the service of the Government, the Army Transport Service had the entire use of the tugs and they were subject at all times to the orders and directions of the officers of the Government, and at no time during the period did the plaintiff have the use of and [it] did not in any way interfere with or direct the operations of the said tugs.” The United States maintain that the owner did not part with possession, command and navigation during the charter periods; that the charter was for service, and not a demise; and that consequently they rightly made deductions for the time the vessels were not at their disposal. Relying upon the doctrine approved in United States v. Shea, 152 U. S. 178, the Court of Claims concluded that the charter amounted to a demise and that the deductions were not permissible. It accordingly sustained the claim of the owner, appellee here. Accepting the facts as found, we agree with that conclusion and affirm the judgment. Affirmed. CHICAGO G. W. R. R. v. SCHENDEL. 287 Argument for Petitioner. CHICAGO GREAT WESTERN RAILROAD COMPANY v. SCHENDEL, ADMINISTRATOR OF THE ESTATE OF RING, DECEASED. CERTIORARI TO THE SUPREME COURT OF THE STATE OF MINNESOTA. No. 422. Argued January 6, 1925.—Decided March 2, 1925. 1. Where a freight car with defective automatic coupler was moved with the train from the main line to a siding to be cut out and left there, held that the use, movement or hauling of the car, within the meaning of the Safety Appliance Act, had not ended when a brakeman went between it and the next car to detach the chain and was injured by the movement of the car by gravity as the engine was cut off; that he was within the protection of that statute; and, under the Employer’s Liability Act, his assumption of the risk, or contributory negligence in going between the cars with knowledge of the danger and without notice to the engineer did not bar his right of action. P. 291. 59 Minn. 166, affirmed. Certiorari to a judgment of the Supreme Court of Minnesota which affirmed a judgment for damages recovered against the railroad company for personal injuries of a brakeman resulting in death. Mr. Asa G. Briggs, with whom Mr. Charles H. Weyl, Mr. Allan Briggs and Mr. Allen V. Junkin were on the briefs, for petitioner. The facts do not bring the case within the Safety Appliance Act. The car had come to rest on the sidetrack and had ceased to be “ used ” as contemplated by the act. The association of the word “ used ” with the words “ hauled or permitted to be hauled on its line ” clearly indicates that the use must be associated with or related to the transportation or hauling of a crippled car, either in transportation from place to place' or of the car from the place where found to be defective or insecure to the 288 OCTOBER TERM, 1924. Argument for Petitioner. 267U.S. place of repair. It does not mean such use of the car elsewhere or in other relation than such hauling or movement. McCalmont v. Penn. R. Co., 273 Fed. 231; s. c. 283 Fed. 736. Let us examine the immediate facts of the case. The draw-bar had pulled out on the main line. The car was then chained up and hauled onto the sidetrack, to be cut out of the train. During this movement nothing occurred. The car was safely hauled to a place on the siding where it was to remain. Having so been placed on this sidetrack, it ceased to be “ used ” by the carrier. From this time on, then, the Safety Appliance Act did not govern the case. If intending to permit a car to stand still constituted a violation of the act, the company could have no alternative but to violate. If they hauled the car they violated the act, and if they did not haul the car they violated the act. See Boldt n. Penn. R. Co., 245 U. S. 441. The defective draw-bar did not proximately contribute to the injury in this case. Gilman v. Central Vermont Ry., 107 Atl. 122; McCalmont v. Penn. R. Co., supra; Great Northern Ry. Co. v. Wiles, 240 U. S. 444; Rittenhouse v. St. L. etc. Ry. Co., 252 S. W. 945; Davis v. Hand, 290 Fed. 73; Phillips v. Penn. R. Co., 283 Fed. 381. The deceased would not have been in the position he was except for the defect in the coupler. Beyond this there is no connection between the defective coupler and his injuries. Douglas v. Washington Terminal Co., 298 Fed. 199. The probability that an injury would be caused by the alleged violation of the Safety Appliance Act was so unlikely, under all the circumstances, that it could not reasonably be foreseen. Lang v. New York Cent., 255 U. S. 455. Otos Case, 239 U. S. 42, distinguished. CHICAGO G. W. R. R. v. SCHENDEL. 289 287 Opinion of the Court. Mr. Tom Davis, with whom Mr. Ernest A. Michel was on the brief, for respondent. Mr. Justice McReynolds delivered the opinion of the Court. The Supreme Court of Minnesota affirmed a judgment in favor of respondent for damages resulting from the death of his intestate, Ring, fatally injured while in petitioner’s service and while both were engaging in interstate commerce. The original action was based upon the Federal Employers’ Liability Act, c. 149, 35 Stat. 65, 66, and the Safety Appliance Act of 1893, c. 196, 27 Stat. 531, as amended in 1910, c. 160, 36 Stat. 298, 299. While the freight train upon which Ring served as brakeman was upon the main line at Budd, Iowa, a drawbar pulled out of a car. Thereupon the crew chained this car to the one immediately ahead. The engine pulled the whole train onto the adjacent siding, which lies on a gentle grade, and stopped. The intention was to detach the damaged car and leave it there. The plan was to cut off the engine, bring it around back of the train, remove the rear portion, couple this to the forward portion and move on. Acting under the conductor’s direction, Ring asked the head brakeman to tell the engineer to proceed; and then, without the knowledge of either of the others, he and the conductor went between the crippled car and the next one, in order to disengage the connecting Qhain. While they were working there the engineer cut off the engine, the car ran slowly down the grade, and Ring, caught by the chain, suffered fatal injuries. A rule of the company provided that employees should advise the engineer when they were going between or under cars and must know that he understood their purpose before they put themselves in any dangerous position. Ring gave no such warning, although familiar with the rule and with the grade upon which the train stood. 42684°—25------19 290 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. Petitioner insists: (1) The facts do not bring the case within the Safety Appliance Act since the car had come to rest on the side-track and had ceased to be “ used,” within the meaning of the statute. (2) The defective draw-bar did not proximately contribute to the injury. (3) The violation of the rule by Ring constituted negligence subsequent to and independent of the question of a defective safety appliance and was a proximate cause of the injury. It is provided by the original Safety Appliance Act— “Sec. 2. That on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” The amendment of 1910 directs— “ Sec. 4. That any common carrier subject to this Act using, hauling, or permitting to be used or hauled on its line, any car subject to the requirements of this Act not equipped as provided in this Act, shall be liable to a penalty of one hundred dollars for each and every such violation . . . Provided, That where any car shall have been properly equipped, as provided in this Act and the other Acts mentioned herein, and such equipment shall have become defective or insecure while such car was being used by such carrier upon its line of railroad, such car may be hauled from the place where such equipment was first discovered to be defective or insecure to the nearest available point where such car can be repaired, without liability for the penalties imposed by Section four of this Act, or Section six of the Act of March second, eighteen hundred and ninety-three, as amended by the Act of April first, eighteen hundred and ninety-six, if such movement is necessary to make such repairs and CHICAGO G. W. R. R. v. SCHENDEL. 291 287 Opinion of the Court. such repairs cannot be made except at such repair point; and such movement or hauling of such car shall be at the sole risk of the carrier, and nothing in this Section shall be construed to relieve such carrier from liability in any remedial action for the death or injury of any railroad employee caused to such employee by reason of or in connection with the movement or hauling of such car with Equipment which is defective or insecure or which is not maintained in accordance with the requirements of this Act and the other Acts herein referred to. . . The Employers’ Liability Act provides that in an action under it for injury or death of an employee, “ such employee shall not be held to have assumed the risks of his employment [or to have been guilty of contributory negligence] in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.” Former opinions have adequately explained the purpose of these enactments. St. Louis, Iron Mountain & Southern Ry. Co. v. Taylor, 210 U. S. 281, 295; Chicago, Burlington & Quincy Ry. Co. v. United States, 220 U. S. 559; St. Louis & San Francisco R. R. Co. n. Conarty, 238 U. S. 243; Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33; Minneapolis & St. Louis R. R. Co. v. Gotschall, 244 U. S. 66; Lang n. New York Central R. R. Co., 255 U. S. 455; Davis v. Wolfe, 263 U. S. 239. Louisville & Nashville R. R. Co. v. Layton, 243 U. S. 617, must be understood as in entire harmony with the doctrine announced in St. Louis & San Francisco R. R. Co. v. Conarty, and not as intended to modify or overrule anything which we there said. Under the circumstances disclosed, we think it clear that the use, movement or hauling of the defective car, within the meaning of the statute, had not ended at the time of the accident. To cut this car out of the train so 292 OCTOBER TERM, 1924. Syllabus. 267 U. S. that the latter might proceed to destination was the thing in view, an essential part of the undertaking in connection with which the injuries arose. The things shown to have been done by the deceased certainly amount to no more than contributory negligence or assumption of the risk, and both of these are removed from consideration by the Liability Act. When injured he was “ within the class of persons for whose benefit the Safety Appliance Acts required that the car be equipped with automatic couplers and draw-bars of standard height. . . . His injury was within the evil against which the provisions for such appliances are directed.” St. Louis & San Francisco R. R. Co. v. Conarty, supra. He went into the dangerous place because the equipment of the car which it was necessary to detach did not meet the statutory requirements especially intended to protect men in his position. We find no material error in the judgment below, and it is Affirmed. DAVIS, DIRECTOR GENERAL OF RAILROADS, ETC., OPERATING PHILADELPHIA & READING RAILWAY, v. NEWTON COAL COMPANY. DAVIS, DIRECTOR GENERAL OF RAILROADS, ETC., OPERATING PENNSYLVANIA RAILROAD, v. NEWTON-COAL COMPANY. ERROR TO THE SUPREME COURT OF THE STATE OF PENNSYLVANIA. Nos. 709 and 710. Argued January 12, 1925.—Decided March 2, . 1925. 1. While coal which plaintiff had purchased through contracts with producers was in course of transportation over railroads then under Federal Control, it was commandeered by the Director General of 292 DAVIS v. NEWTON COAL CO. Argument for Plaintiff in Error. 293 Railroads, acting under orders of the Fuel Administrator, for use in operating the railroads, and he paid the producers the prices fixed by the Fuel Administrator, which were the same as the prices named in plaintiffs’ contracts. Held (a) That the plaintiff was entitled to be paid the difference between prices thus paid to its vendors and the market value, which was higher. P. 301. (6) That by § 206 (a) of Transportation Act, 1920, actions therefor could be maintained in the state court against the agent designated by the President under that Act. P. 301. 281 Pa. St. 74, affirmed. Error to a judgment of the Supreme Court of Pennsylvania affirming recoveries from the Director General of Railroads, as agent under the Transportation Act, 1920, on account of coal seized and appropriated for operating railroads while under Federal Control. Mr. Wm. Clarke Mason, with whom Mr. John Hampton Barnes and Mr. Charles Myers were on the brief, for plaintiff in error. At the time of the transactions, January and February, 1920, the war with Germany had not terminated and therefore any powers which the Government had incident to the war still remained. Hamilton n. Kentucky Distilleries Co., 251 U. S. 146. It must be assumed that all of the orders made by the President or his agents under § 25 of the Lever Act were made “ for the efficient prosecution of the war ” unless the contrary appears on the face of such orders. The orders here definitely show that they were made on account of the war emergency. All of the orders, both executive and those made by the Fuel Administration, refer to the Act of Congress of August 10th, 1917. The executive order of October 30th, 1919, states in its preamble “. . . whereas it is necessary to restore and maintain during the war certain of said rules, regulations, orders and proclamations . . .” 294 OCTOBER TERM, 1924. Argument for Plaintiff in Error. 267 U. S. The Fuel Administration order of October 31st, 1919, states that it is made on account of the “ present emergency ” and it must be assumed that this means the war emergency. It would be a most unwise policy to allow courts to enquire into the motives of the executive branch of the Government in making orders during the war emergency in order to determine their validity. The state court in its opinion, however, said that the testimony showed that the Fuel Administrator in issuing the orders under consideration did not act on account of the war emergency but on account of the threatened coal strike and, therefore, the orders were invalid. Section 2 of the Lever Act provides “ that in carrying out the purposes of this Act the x President is authorized to create or use any agency or agencies.” Congress delegated certain of its powers by this act to the President and the Fuel Administrator was the President’s duly authorized agent in issuing orders, so that these orders were substantially the acts of Congress and, therefore, the first answer to the reasoning of the court below is that the court has enquired into the motive of Congress in determining the validity of the orders. The second answer is that there is no evidence to justify the finding that the orders were issued solely because of the coal strike, but on the contrary the evidence shows that the conditions existing because of the war emergency were made more alarming by the additional shortage due to the strike. The conclusion* of the State Supreme Court is in direct conflict with decisions of this Court. Commercial Trust Co. v. Miller, 262 U. S. 51. The fact and date of the termination of the war had not been ascertained and proclaimed by the President in the manner fixed by Congress at the time the events under consideration took place, and this fact of termination was not ascertained and proclaimed until after the orders which are attacked in these cases were suspended. DAVIS v. NEWTON COAL CO. 295 292 Argument for Plaintiff in Error. The orders under consideration did not violate the Fifth Amendment by the method provided to fix compensation. The question must be approached in . the light of the facts, and the answer must take into consideration the identity of the divertee. The diversion was by the agency of the Fuel Administrator and the use of the diverted coal was by the Director General of Railroads, which were the first preferred consumers on the fuel administration list. If the railroads had been privately operated at the time of diversion this case would present substantially the facts found in Morrisdale Coal Co. v. United States, 259 U. S. 188, and the conclusions should be the same as there. If the fact of Government operation requires the diversion to be treated as a requisitioning under § 10 of the Lever Act for use by the United States of America, then a totally different case is developed. In the latter event the sole cause of action would seem to be under that section of the Lever Act, and the rule of United States v. New River Collieries Co., 262 U. S. 341, would probably apply. In several decisions of the lower federal courts the constitutionality of the Lever Act has been assumed, and there seems to have been but one federal decision which has discussed and adjudicated the constitutionality of the applicable sections of the Lever Act, Ford v. U. S. 281 Fed. 298. This Court reversed that decision (264 U. S. 239), but did so solely on the ground that the Lever Act did not apply to the coal involved. See Lajoie v. Milliken, et al., 242 Mass. 508. Congress is given certain powers in war time which even the Fifth Amendment does not limit or restrict. The power to restrict the liquor traffic is one, as stated in Hamilton v. Kentucky Distilleries Co., supra, at page 156, for the reason that this is an appropriate means of increasing war efficiency. Is not this war efficiency just as much affected by the use, distribution and price of coal? 296 OCTOBER TERM, 1924. Argument for Plaintiff in Error. 267 U.S. The contracts between the Coal Company and the shippers, show that the Coal Company agreed that the coal to be shipped under the contracts would be subject to the regulations of the Fuel Administration, including of course the orders, such as those under consideration, to be thereafter issued. In the case of Vogelstein v. United States, 262 U. S. 337, this Court held that one who cooperated with others in putting into effect and maintaining a price established by the Government could not later recover a greater price, and the same reasoning would seem to apply to the claim of the defendant-in-error. Morrisdale Coal Co. v. United States, 259 U. S. 188. The origin of the Fuel Administrator and the Federal Agent is in the federal statutes, and both are agencies of the President. One derived his powers, however, from the Lever Act and the other from the Transportation Act. There is no authority given to the Federal Agent under § 206 of the latter act to answer for the acts of the agencies of the Fuel Administration under § 10 of the Lever Act, or under the general power of condemnation of the Federal Government, but merely for those causes of action for which the carriers would have been otherwise liable. The Director General as Federal Agent, plaintiff-in-error in these cases, admits his liability under the orders of the Fuel Administrator to pay the proper price for coal lawfully diverted to the Director General and lawfully used by the Director General in the operation of the railroads. He has assumed that the payment of the price fixed by the Fuel Administration discharged this liability; but if authority was lacking to fix such price, then for the coal lawfully diverted he is liable for such price as may be judicially determined. The clear distinction which this Court has drawn between the several capacities in which the Director General functioned is found in Dahn v. Davis, 258 U. S. 421; 292 DAVIS v. NEWTON COAL CO. Argument for Defendant in Error. 297 Dupont v. Davis, 264 U. S. 456; North Carolina Ry. Co. v. Lee, 260 U. S. 16; Missouri R. R. v. Ault, 256 U. S. 554; Davis v. Donovan, 265 U. S. 257; Davis n. O’Hara, 266 U. S. 314. Mr. Allen S. Olmsted, 2d, with whom Mr. Wm. A. Glasgow, Jr., was on *the brief, for defendant in error. The post-war fuel regulations of 1919-20 were not within the President’s statutory power to regulate the distribution of coal “ whenever in his judgment necessary for the efficient prosecution of the war.” The Government, having taken and used the coal, must pay its fair value, judicially determined. Section 25 of the Lever Act, which gives the President power to fix prices, also provides that in fixing the prices, he shall cause a careful inquiry to be made into costs and other factors affecting the price. There is no pretense that such an inquiry was made here. The price paid by the divertee of this coal was fixed in a series of orders, of which the latest is dated May 24, 1918. The Government control of prices had been lifted on January 31, 1919, and there followed nine months of free trading. Suddenly on October 30, 1919, the President revived the 1918 prices. Current prices, as this record shows, and the trial court found, were far higher than the 1918 prices. Under such circumstances we submit that, even though the diversions were lawful, the 1918 prices were not binding, and therefore, even though the Director General were a private citizen, the payment of the 1918 price would not protect him in a suit by the owner of the coal. But the Director General was not a private citizen. A suit against him “ is an action against the United States.” Davis v. O’Hara, 266 U. S. 314, and cases cited. Corona Coal Co. v. United States, 263 U. S. 527. Plaintiff-in-error stresses the dual capacity of the Director General. As Fuel Administrator he diverted the coal; as Railroad 298 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. Operator he received it. This is but another way of saying that the Government both took and used the coal. How much must it pay for it? Even the plaintiff-in-error, in answering that question, concedes that the rule of United States v. New River Collieries Co. 262 U. S. 341, would probably apply. National City Bank v. United States, 275 Fbd. 855, s. c. 281 Fed. 754, 263 U. S. 726; Vogelstein v. United States, 262 U. S. 337. This suit was properly brought against the Director General under § 206a of the Transportation Act, 1920. If the orders were invalid, the taking was wrongful and all who participated in the transactions were trespassers in their own wrong. That the Director General is liable for torts committed by railroad employees is well settled. Missouri Pacific R. Co. v. Ault 256 U. S. 554; Director General v. Kasteribaum, 263 U. S. 25. If the taking be assumed to be lawful, the Director General is none the less liable. In the pleadings he admits he is the proper defendant and counsel reiterates that admission. These suits come exactly within the language of the statute. The cause of action arises out of Federal Control. It is of such character as prior to Federal Control could have been brought against a corporate carrier; for surely an action lies against a corporation to recover the value of property to which it has rightfully obtained title, e. g., by eminent domain, or under contract. It is, we submit, irrelevant that an action would also lie against the United States eo nomine, under § 10 of the Lever Act. Mr. Justice McReynolds delivered the opinion of the Court. These causes present the same points of law and were heard together both here and below. No disputed ques^-tion of fact remains. In 1919 defendant in error, a DAVIS v. NEWTON COAL CO. 299 292 Opinion of the Court. Pennsylvania corporation, doing business at Philadelphia, contracted with producers for large quantities of bituminous coal, f. o. b. the mines, subject to the regulations of the United States Fuel Administration. During January and February, 1920, while thirty-three cars of coal consigned to the corporation under these contracts were moving over the Philadelphia & Reading Railway, the Director General of Railroads took possession of them and used the fuel for operating trains on that line. Eighty cars loaded with the same character of coal and moving on the Pennsylvania Railroad were similarly treated. The claim is that the Director General took this action under lawful rules and orders of the President, acting through the Fuel Administrator and pursuant to the Lever Act, approved August 10, 1917, c. 53, 40 Stat. 276, 279, 284. The producers of the coal were paid the prices specified in the contracts of purchase, as required by the Fuel Administrator; and it is now maintained that nothing more can be demanded by the owner. The owner’s claim is for the difference between the amount received by producers and the market value of the coal—approximately $1.44 per ton. The Lever Act conferred upon the President certain powers to regulate the prices and distribution of fuel, to be exercised for the efficient prosecution of the war. August 23, 1917, he delegated these powers to a Fuel Administrator, who freely used them during the continuation of hostilities. Shortly after the armistice substantially all such regulations were suspended and the Administrator ceased to function; but his appointment was not canceled or revoked. On October 30, 1919, the President undertook to restore former orders and to empower the Fuel Administrator, as occasion might arise, to change or make regulations relative to the sale, shipment and apportionment of bituminous coal as the latter might think necessary. The next 300 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. day the Administrator delegated to the Director General of Railroads the power to divert coal upon the railroads as might seem “necessary in the present emergency to provide for the requirements of the country.” March 19, 1920, the President suspended all fuel regulations. Seeking to recover the difference between the amounts paid to the shipper—the purchase price—and the market value of the coal, defendant in error commenced these proceedings (June, 1921), in a state court at Philadelphia, against the Agent appointed by the President under the Transportation Act, 1920, c. 91, 41 Stat. 456, 461. Judgments went for it and were affirmed by the Supreme Court. 281 Pa. 74. The latter court held: That the war with Germany had ceased prior to October 30, 1919, and the purpose of the President’s order then issued was to meet an emergency incident to the miners’ strike—not to provide for the efficient prosecution of the war. Also that seizure and use of the coal by the Director General rendered the United States liable for just compensation, measured by market value. And, further, that the Director General was not an innocent third person to whom property has been delivered by the sovereign for the public welfare, but an agency of the United States for operating the railroads, and, under the Transportation Act, 1920, plaintiff in error might be sued upon claims arising therefrom. The plaintiff in error now insists: That the order of October 30, 1919, and the regulations issued by the Fuel Administrator and the Director General of Railroads acting thereunder, were authorized by the Lever Act. That by diverting the coal to1 himself the Director General incurred no obligation except to pay the amounts due the shippers under the sale contracts—the compensation fixed by the orders. That the act of the Director General in diverting the coal to himself and its use on the railroads imposed no liability for which an action can be main- DAVIS v. NEWTON COAL CO. 301 292 Opinion of the Court. tained against the Agent provided for by the Transportation Act. From the facts stated it appears, plainly enough, that one hundred and thirteen cars of coal belonging to defendant in error were seized by the United States while upon the lines of carriers under their control and thereafter appropriated and used in the operation of such roads. The taking was for a public use. The incantation pronounced at the time is not of controlling importance ; our primary concern is with the accomplishment. As announced in United States v. New River Collieries Co., 262 U. S. 341, 343, 344, “ where private property is taken for public use, and there is a market price prevailing at the time and place of the taking, that price is just compensation ” to which the owner is entitled. Also, “ the ascertainment of compensation is a judicial function, and no power exists in any other department of the Government to declare what the compensation shall be or to prescribe any binding rule in that regard.” Transportation Act, 1920, § 206(a)— “Actions at law, suits in equity and proceedings in admiralty, based on causes of action arising out of the possession, use, or operation by the President of the railroad or system of transportation of any carrier (under the provisions of the Federal Control Act, or of the Act of August 29, 1916) of such character as prior to Federal control could have been brought against such carrier, may, after the termination of Federal control, be brought against an agent designated by the President for such purpose, which agent shall be designated by the President within thirty days after the passage of this Act. Such actions, suits, or proceedings may, within the periods of limitation now prescribed by State or Federal statutes but not later than two years from the date of the passage of this Act, be brought in any court which but for Federal control would have had jurisdiction of the cause of action had it arisen against such carrier.” 302 OCTOBER TERM, 1924, Syllabus. 267 U. S. If the Philadelphia & Reading Railway Company or the Pennsylvania Railroad Company, while operating its own line, had seized and used the coal as the United States did while they operated those roads, the jurisdiction of the state court of actions to recover damages or compensation would be clear. And so, under the Transportation Act, that court properly entertained the proceedings now before us. Affirmed. UNITED STATES v. ARCHIBALD McNEIL & SONS CO., INC. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA. No. 444. Argued January 9, 12, 1925.—Decided March 2, 1925. 1. In the absence of a bill of exceptions or special findings, the jurisdiction of the District Court over a law case tried by stipulation without a jury is determinable, on direct appeal to this Court, only upon the questions of law apparent on the face of the pleadings. P. 307. 2. An action in the District Court to recover just compensation for goods alleged to have been commandeered or requisitioned under the Lever Act, may be brought, under § 10 of that statute, in the District where the seizure occurred. Id. 3. Where a statement of claim filed in the District Court under § 10 of the Lever Act sought recovery of the value of coal alleged to have been requisitioned under that act by the President through the Fuel Administrator and used by the United States in the operation of various railroads—“ a public use connected with the common defense,”—held that objections raised by demurrer, in terms questioning the jurisdiction upon the grounds that there had been no preliminary determination of value, and partial payment, as contemplated by the statute, and that the cause of action was for a diversion of the coal, under § 25, remediable only by action against the agent designated by the President under § 206 (a) of the Transportation Act, 1920,—did not go to the jurisdiction of the court but concerned the merits. Binderup v. Pathe Exchange, 263 U. S. 291. Id. Affirmed. UNITED STATES v. McNEIL & SONS. 303 302 Argument for the United States. Jurisdictional appeal, under Judicial Code, § 238, from a judgment of the District Court awarding compensation for coal taken by the Government. Mr. Aljred A. Wheat, Special Assistant to the Attorney General, with whom Mr. Solicitor General Beck was on the brief, for the United States. Whatever the allegations in the statement of claim to the effect that the suit was brought under § 10 of the Lever Act by reason of the fact that the President had commandeered coal pursuant to the provisions of that act, when it appeared that the coal was not thus commandeered but was really diverted by the Fuel Administrator for the use of railroad companies which were at the time being operated under federal control, the suit should have been dismissed, for the District Court had no jurisdiction to entertain a suit against the United States for coal thus diverted and thus used. If these two railroads had not been under government control at this time, and the coal had been diverted to their use by the Fuel Administrator under preference regulations and the railroads had not paid for it, it will undoubtedly be conceded that the only remedy would lie in separate actions against each railroad company. Compliance with regulations of the Fuel Administrator, even though a loss is thereby incurred, will not support an action against the United States. Morrisdale Coal Co. v. United States, 259 U. S. 188; Pine Hill Coal Co. v. United States, 259 U. S. 191. The fact that the railroads were under federal control does not alter the principle. While federal control lasted the plaintiff could have sued the Director General for this coal under the Act of March 21, 1918, c. 25, 40 Stat. 451, and General Order No. 50. Missouri Pacific R. Co. v. Ault, 256 U. S. 554. After federal control ceased the plaintiff could have sued the Agent designated by the 304 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. President under § 206 (a) of the Transportation Act of February 28,1920, c. 91, 41 Stat. 456, 461. Each railroad operated under federal control was operated as a separate entity. Missouri Pacific R. Co. v. Ault, supra. Therefore on a cause of action arising out of federal operation of the Boston & Maine Railroad suit must be brought against the Agent designated by the President, and service must be had on an agent of the Boston & Maine Railroad or some person designated by the President, and the action must be brought in a court which would have jurisdiction over the Boston & Maine Railroad. The Lever Act was passed August 10, 1917, while the railroads were under private operation. At that time no suit could have been maintained against the United States under the Lever Act arising out of the use by a railroad corporation of coal obtained by it through the Fuel Administrator. Pine Hill Coal Co. v. United States, supra. After the Federal Control Act of March 21, 1918, and General Order No. 50, any suit for coal used upon any railroad under federal operation must have been brought against the Director General in a court which but for federal operation would have jurisdiction of a suit against the railroad company, and after federal control ceased, on March 1, 1920, the suit must have been brought against the Agent appointed by the President under that Act. Here was a complete, adequate, and, we claim, an exclusive remedy. Mr. George Deming, for defendant in error. Mr. Charles H. Burr was on the brief. Mr. Justice McReynolds delivered the opinion of the Court. Seeking to recover $17,422.32 as compensation for 3,840.9 tons of bituminous coal, defendant in error, a UNITED STATES v. McNEIL & SONS. 305 302 Opinion of the Court. Connecticut corporation, instituted this action against the United States by filing statement of claim in the United States District Court, Eastern District of Pennsylvania. It alleged— That jurisdiction of the action arises under the Fifth Amendment and the tenth section of the Lever Act, c. 53, 40 Stat. 276, 279. That the coal in question had been shipped from the mines under valid contracts during the first part of October, 1919, was owned by the claimant, and prior to October 30, 1919, was at Port Richmond Piers, Philadelphia, or at Port Reading Piers, New Jersey. That “ by virtue of the authority conferred by the aforesaid Act of Congress, the President of the United States, acting by and through the Fuel Administrator at Port Richmond Piers, Philadelphia, or at Port Reading Piers, New Jersey, commandeered and requisitioned ” this coal during November and December, 1919. “ The said coal was commandeered and requisitioned from or through the Commissioner of the Tidewater Coal Exchange, the Superintendent of Transportation of the Philadelphia & Reading Railroad Company, the Shipping and Freight Agent of the United States Railroad Administration at Port Reading Terminal Piers, New Jersey, the Bituminous Coal Distribution Committee, the Regional Coal Committee, the Philadelphia & Reading Railroad Company, the Port Reading Railroad Company, the Federal Treasurer at Port Reading Terminal Piers of the United States Railroad Administration, and the Jamison Coal & Coke Company, the vendors of the said coal to the plaintiff. All of the aforesaid coal was received, accepted, retained and used by the United States of America, and used in the operation of various railroads, to wit: Boston & Maine Railroad, Maine Central Railroad; which said use was a public use connected with the common defense.” That the fair and reasonable value of the coal was $4,536 per ton f. o. b. the mines; that nothing has been 42684°—25------20 306 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. paid to claimant on account of said coal so commandeered and requisitioned, and it should have judgment for the value thereof with interest. A motion by the United States to dismiss the action upon the ground that the claimant was a citizen of Connecticut and therefore the court lacked jurisdiction, was overruled. Thereupon, the United States interposed a demurrer and set up that the court had no jurisdiction of the cause; that the statement of claim showed no cause of action; that under the Lever Act district courts of the United Stateshave jurisdiction of actions only after determination by the President of the value of the property taken, expression of dissatisfaction by the owner, and payment of seventy-five per centum of the determined amount; that the complaint sets forth a diversion of coal under § 25 of the Lever Act, not a requisition under § 10, and that the remedy, if any, was to sue the Agent designated by the President under § 206 (a) of the Transportation Act, 1920, c. 91, 41 Stat. 456, 461. This was overruled and the United States answered. It was stipulated by counsel that, “ a jury trial being waived, the issues of fact in this case may be tried and determined by the court without the intervention of a jury, in accordance with §§ 649 and 700 of the United States Revised Statutes.” The cause was heard by the court upon the pleadings and evidence. What purports to be a transcript of the latter is printed; but it was not made part of the record by bill of exceptions. The trial judge filed an opinion and entered judgment for the claimant. No special findings were asked or made. The cause is here by direct writ of error. The parties agree that only the question of jurisdiction is open. For the United States it is said, “ the court below was without jurisdiction to render the judgment, and that is the sole question presented.” 302 BUCK v. KUYKENDALL. Syllabus. 307 As the record contains no bill of exceptions, upon this direct writ of error we can review only questions of law apparent on the face of the pleadings in so far as they directly relate to the court’s jurisdiction. Insurance Company v. Folsom, 18 Wall. 237; Law v. United States, 266 U. S. 494; Judicial Code, § 238. Jurisdiction was invoked under the Lever Act. The claim is for something alleged to have been commandeered or requisitioned by the President, as provided by § 10, and this section confers jurisdiction without qualification upon district courts to hear and determine controversies directly resulting from such action. Houston Coal Co. v. United States, 262 U. S. 361, 365. Proceedings in the district where the seizure actually occurred are not forbidden, and seem entirely appropriate. The allegations of the complaint were sufficient to set out a substantial claim under a federal statute. Accordingly, there was jurisdiction in the court to pass upon the questions so presented. Binderup n. Pathe Exchange, 263 U. S. 291, 305. Affirmed. BUCK v. KUYKENDALL, DIRECTOR OF PUBLIC WORKS OF THE STATE OF WASHINGTON. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF WASHINGTON. No. 345. Argued November 25, 1924.—Decided March 2, 1925. 1. Section 4, of c. Ill, Laws of Washington, 1921, which prohibits common carriers for hire from using the highways by auto vehicles between fixed termini or over regular routes without having obtained from the Director of Public Works a certificate declaring that public convenience and necessity require such operation, is, primarily, not a regulation to secure safety on highways, or to conserve them, but a prohibition of competition, and, as applied to one desirous of using the highways as a common carrier of pas- 308 OCTOBER TERM, 1924. Argument for Appellant. 267 U. S. sengers and express purely in interstate commerce, is a violation of the Commerce Clause, besides defeating the purpose expressed in acts of Congress giving federal aid for construction of interstate highways. P. 315. 2. A party who has received no benefit from and who does not rely upon a statute, is not estopped from assailing it as unconstitutional merely because he vainly endeavored to comply with it. P. 316. 295 Fed. 197, 203, reversed. Appeal from a decree of the District Court dismissing a bill for an injunction. See 295 Fed. 197; id. 203. The opinion is printed as amended by order, June 8, 1925. Mr. Merrill Moores, with whom Mr. W. R. Crawford was on the briefs, for appellant, submitted. The Federal Highway Act and the adoption of the provisions thereof by the State of Washington constitute a contract protected by the Federal Constitution. The provisions of the state law, c. Ill, of the Laws of 1921, as amended, preventing unimpeded traffic on federal-aided highways or granting an exclusive privilege to use them in certain traffic, impair this contract and are unconstitutional. They create a monopoly; they discriminate against and prohibit the free use of these highways for traffic. McGehee v. Mathis, 4 Wall. 145; Seabright v. Stokes et oil., 3 How. 151; Neil, Moore & Co. v. Ohio, 3 How. 720; Achison v. Hudleson, 12 How. 291. In § 2 of the federal act the term “ reconstruction ” was defined as including the widening or rebuilding of highways or any portion thereof, to make a continuous road sufficiently wide and strong to care adequately for “ traffic ” needs. Section 8 provides that such highways must be built to adequately meet existing and probable future “ traffic ” needs and conditions. Further, the Secretary of Agriculture must approve the types and width, and consideration must be given probable character and extent of future “ traffic.” BUCK v. KUYKENDALL, 309 307 Argument for Appellant. Section 18 vests the Secretary with sole authority to administer the law, protecting the highways and the safety of “ traffic ” thereon. Interstate commerce consists of intercourse and traffic between the citizens of different States. The term “ traffic ” is not one of restriction, but embraces all uses of such public highways by any means or instrument of transportation, whether or not there is a charge for the use of the means or instruments by the owner thereof to others for transportation. If § 4 of the state law, prohibiting the use of such public highways, except by one person or corporation in the same territory using such highway, is constitutional, then the State can prohibit the free use of such highways by any class either of motor vehicles or of persons, and the entire meaning of the Federal Highway Act and the protection thereof can be destroyed and a favored few would have absolute monopoly in “ traffic ” thereon. The provision of the state law requiring a certificate or license to engage in interstate commerce, is unconstitutional. McCall v. California, 136 U. S. 104; Gloucester Ferry Co. v. Penn., 114 U. S. 196; Crandall v. Nevada, 6 Wall. 35; Welton v. Missouri, 91 U. S. 275; Hall v. DeCuir, 95 U. S. 485; Chicago & N. W. R. Co. v. Fuller, 17 Wall. 560; Luxton v. North River Bridge Co., 153 U. S. 525; Dayton-Goose Creek R. Co. v. United States, 263 U. S. 456. A state law requiring the obtaining of a license to engage in interstate commerce in the State is unconstitutional and can not be defended as a police measure. Crutcher v. Kentucky, 141 U. S. 47; Brennan v. Titusville, 153 U. S. 289; Sault Ste. Marie v. International Transit Co., 234 U. S. 335; Kansas S. R. Co. v. Kaw Valley Drainage Dist., 233 U. S. 75; Barrett v. New York, 232 U. S. 14; Wagner v. Covington, 251 U. S. 95; Kir- 310 OCTOBER TERM, 1924. Argument for Appellant. 267 U. S. meyer n. Kansas, 236 U. S. 568; Carlsen v. Cooney, 123 Wash. 441. A state law granting an exclusive privilege to engage in the business of interstate commerce over the public highways is unconstitutional. Gibbons v. Ogden, 9 Wheat. 1; Long v. Miller, 262 Fed. 363; Pensacola Tel. Co. v. West. Union Tel. Co., 96 U. S. 1; United States v. Union Pacific R. Co., 160 U. S. 1; West v. Kansas Natural Gas Co., 221 U. S. 229; St. Clair County v. Interstate Etc. Co., 192 U. S. 454. The provisions of the state law are arbitrary and void. The appellant was prohibited from entering the State of Washington, carrying persons from Portland, Oregon, at reduced fares. It is claimed that these provisions are constitutional on the ground that Congress has not legislated on the subject. We contend that the “ Federal Highway Act,” furnishes a complete answer. Even if that Act had no application, the inaction of Congress is equivalent to a declaration that such interstate commerce shall remain free and untrammeled. Missouri v. Kansas City Nat. Gas. Co. 265 U. S. 298; Penn. v. West Virginia, 262 U. S. 553; Wabash St. L. & P. R. Co. v. Illinois, 118 U. S. 557; South Covington Ry. v. Covington, 235 U. S. 538. The power vested in Congress to regulate commerce among the States cannot be stopped at the boundary line of the State, and the absence of a law by Congress is equivalent to its declaration that the importation of the article of commerce into the States shall be unrestricted. Leisy v. Hardin, 135 U. S. 100; Lyng n. Michigan, 135 U. S. 161; Welton v. Missouri, 91 U. S. 275; Gloucester Ferry Co. v. Penn., supra; Brown v. Houston, 114 U. S. 622; Walling v. Michigan, 116 U. S. 446; Vance v. Vandercook Co., 170 U. S. 457; Hall v. De Cuir, supra. BUCK v. KUYKENDALL. 311 307 Argument for Appellee. Mr. Wm. J. Hughes also appeared for the appellant. Mr. John H. Dunbar, with whom Mr. H. C. Brodie was on the briefs, for appellee. A person who has invoked the benefit of an unconstitutional law can not in a subsequent litigation aver its unconstitutionality as a defense. Pierce Oil Co. v. Phoenix Refining Co., 259 U. S. 125; Wall v. Parrot Silver & Copper Mining Co., 244 U. S. 407; Grand Rapids & Indiana Ry. Co. v. Osborn, 193 U. S. 17; Shepard n. Barron, 194 U. S. 553; Pierce v. Somerset Ry. 171 U. S. 641; Electric Co. v. Dow, 166 U. S. 489; Fielden v. Shelby County, 145 U. S. 1; Great Falls Manufacturing Co. v. Garland, 124 U. S. 581. The state statute does not violate the federal highway acts. Buck v. Kuykendall, 295 Fed. 197; Liberty Highway Co. n. Michigan Public Utilities Comm. 294 Fed. 703. The state act does not violate the Commerce Clause of the United States Constitution. It has been repeatedly recognized by this Court that in matters affecting interstate commerce the States may legislate with reference to local needs where there has been no congressional legislation with respect thereto. Minnesota Rate Cases, 230 U. S. 352; Missouri Pacific Ry. Co. v. Larabee Flour Mills Co., 211 U. S. 612; Atlantic Coast Line v. Georgia, 234 U. S. 280; Missouri Kansas & Texas Ry. Co. v. Harris, 234 U. S. 412; Hendrick v. Maryland, 235 U. S. 610; Kane v. New Jersey, 242 U. S. 160; Chicago, Milwaukee & St. Paul Ry. Co. v. Public Utilities Comm. 242 U. S. 333; Penn. Gas Co. v. Public Service Comm. 252 U. S. 23. Congress has passed no act relative to interstate transportation by motor vehicles, and it has been held in numerous cases that legislation of the character here involved is of a local nature. It has also been repeatedly recognized by this Court and the lower federal courts, that the States may, under 312 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. their police power, pass acts which indirectly affect interstate commerce, and that the regulation and use of the public highways of the State is a proper exercise of the police power. Hendrick v. Maryland, supra; Kane v. New Jersey, supra; Interstate Motor Transit Co. v. Kuykendall, 284 Fed. 882; Northern Pac. Ry. Co. n. Schoenfeldt, 123 Wash. 579; Schmidt v. Department of Public Works, 123 Wash. 705; Camas Stage Co. n. Kozer, 209 Pac. 95; Geo. W. BusK& Sons Co. v. Maloy, 143 Md. 570; Liberty Highway Co. v. Michigan Public Utilities Comm, supra. The state act does not violate the Fourteenth Amendment. Hendrick v. Maryland, supra; Geo. W. Bush & Sons Co. v. Maloy, supra; Camas Stage Co. v. Kozer, supra; Lutz n. City of New Orleans, 235 Fed. 978; Hadfield v. Lundin, 98 Wash. 657; Ex parte Dickie (W. Va.) 85 S. E. 781; Carson v. Woodram, (W. Va.) 120 S. E. 512; Davis v. Commonwealth of Mass., 167 U. S. 43; Gundling v. Chicago, 177 U. S. 183; West Suburban Transportation Co. n. Chicago & W. T. Ry. Co., (Ill.) 140 N. E. 56; Lane v. Whitaker, 275 Fed. 476; Lieberman n. Van De Carr, 199 U. S. 552. Messrs. John E. Benton and Carl I. Wheat filed a brief as amici curiae. Mr. Justice Brandeis delivered the opinion of the Court. This is an appeal, under § 238 of the Judicial Code, from a final decree of the federal court for western Washington dismissing a bill brought to enjoin the enforcement of § 4 of chapter 111 of the Laws of Washington, 1921. That section prohibits common carriers for hire from using the highways by auto vehicles between fixed termini or over regular routes, without having first obtained from the Director of Public Works a certificate declaring that 307 BUCK v. KUYKENDALL. Opinion of the Court. 313 public convenience and necessity require such operation. The highest court of the State has construed the section as applying to common carriers engaged exclusively in interstate commerce. Northern Pacific Ry. Co. v. Schoen-jeldt, 123 Wash. 579; Schmidt v. Department of Public Works, 123 Wash. 705. The main question for decision is whether the statute so construed and applied is consistent with the Federal Constitution and the legislation of Congress. Buck, a citizen of Washington, wished to operate an auto stage line over the Pacific Highway between Seattle, Washington and Portland, Oregon, as a common carrier for hire exclusively for through interstate passengers and express. He obtained from Oregon the license prescribed by its laws. Having complied with the laws of Washington relating to motor vehicles, their owners and drivers (Carlsen v. Cooney, 123 Wash. 441), and alleging willingness to comply with all applicable regulations concerning common carriers, Buck applied there for the prescribed certificate of public convenience and necessity. It was refused. The ground of refusal was that, under the laws of the State, the certificate may not be granted for any territory which is already being adequately served by the holder of a certificate; and that, in addition to frequent steam railroad service, adequate transportation facilities between Seattle and Portland were already being provided by means of four connecting auto stage lines, all of which held such certificates from the State of Washington.1 Re Buck, P. U. R. 1923 E, 737. To enjoin interference by its officials with the operation of the projected 1An additional ground for refusing the certificate was that the applicant did not appear to have financial ability. This ground of rejection does not require separate consideration; among other reasons, because the plaintiff later asserted, in his bill, that he possessed the requisite financial ability, and the motion to dismiss admitted the allegation. 314 OCTOBER TERM, 1924. Opinion of the Court. 267 U. 8. line, Buck brought this suit against Kuykendall, the Director of Public Works. The case was first heard, under § 266 of the Judicial Code, before three judges, on an application for a preliminary injunction. They denied the application. 295 Fed. 197. A further application for the injunction made after amending the bill was likewise denied. 295 Fed. 203. Then the case was heard by the District Judge upon a motion to dismiss the amended bill. The final decree dismissing the bill was entered without further opinion. See also Interstate Motor Transit Co. n. Kuykendall, 284 Fed. 882. That part of the Pacific Highway which lies within the State of Washington was built by it with federal aid pursuant to the Act of July 11, 1916, c. 241, 39 Stat. 355, as amended February 28, 1919, c. 69, 40 Stat. 1189, 1200, and the Federal Highway Act, November 9, 1921, c. 119, 42 Stat. 212. Plaintiff claimed that the action taken by the Washington officials, and threatened, violates rights conferred by these federal acts and guaranteed both by the Fourteenth Amendment and the Commerce Clause. In support of the decree dismissing the bill this argument is made: The right to travel interstate by auto vehicle upon the public highways may be a privilege or immunity of citizens of the United States. Compare Crandall v. Nevada, 6 Wall. 35. A citizen may have, under the Fourteenth Amendment, the right to travel and transport his property upon them by auto vehicle. But he has no right to make the highways his place of business by using them as a common carrier for hire. Such use is a privilege which may be granted or withheld by the State in its discretion, without violating either the due process clause or the equal protection clause. Packard n. Banton, 264 U. S. 140, 144. The highways belong to the State. It may make provision appropriate for securing the safety and convenience of the public in the use of them. Kane v. New Jersey, 242 U. S. 160. It may impose fees with a 307 BUCK v. KUYKENDALL. Opinion of the Court. 315 view both to raising funds to defray the cost of supervision and maintenance and to obtaining compensation for the use of the road facilities provided. Hendrick v. Maryland, 235 U. S. 610. See also Pierce Oil Corporation v. Hopkins, 264 U. S. 137. With the increase in number and size of the vehicles used upon a highway, both the danger and the wear and tear grow. To exclude unnecessary vehicles—particularly the large ones commonly used by carriers for hire—promotes both safety and economy. State regulation of that character is valid even as applied to interstate commerce, in the absence of legislation by Congress which deals specifically with the subject. Vandalia R. R. Co. v. Public Service Commission, 242 U. S. 255; Missouri Pacific Ry. Co. v. Larabee Flour Mills Co., 211 U. S. 612. Neither the recent federal highway acts, nor the earlier post road acts, Rev. Stat. § 3964; Act of March 1, 1884, c. 9, 23 Stat. 3, do that. The state statute is not objectionable because it is designed primarily to promote good service by excluding unnecessary competing carriers. That purpose also is within the State’s police power. The argument is not sound. It may be assumed that § 4 of the state statute is consistent with the Fourteenth Amendment; and also, that appropriate state regulations adopted primarily to promote safety upon the highways and conservation in their use are not obnoxious to the Commerce Clause, where the indirect burden imposed upon interstate commerce is not unreasonable. Compare Michigan Public Utilities Commission v. Duke, 266 U. S. 571. The provision here in question is of a different character. Its primary purpose is not regulation with a view to safety or to conservation of the highways, but the prohibition of competition. It determines not the manner of use, but the persons by whom the highways may be used. It prohibits such use to some persons while 316 OCTOBER TERM, 1924. Opinion of the Court. 267U.S. permitting it to others for the same purpose and in the same manner. Moreover, it determines whether the prohibition shall be applied by resort, through state officials, to a test which is peculiarly within the province of federal action—the existence of adequate facilities for conducting interstate commerce. The vice of the legislation is dramatically exposed by the fact that the State of Oregon had issued its certificate which may be deemed equivalent to a legislative declaration that, despite existing facilities, public convenience and necessity required the establishment by Buck of the auto stage line between Seattle and Portland. Thus, the provision of the Washington statute is a regulation, not of the use of its own highways, but of interstate commerce. Its effect upon such commerce is not merely to burden but to obstruct it. Such state action is forbidden by the Commerce Clause. It also defeats the purpose of Congress expressed in the legislation giving federal aid for the construction of interstate highways. By motion to dismiss filed in this Court, the State makes the further contention that Buck is estopped from seeking relief against the provisions of § 4. The argument is this: Buck’s claim is not that the Department’s action is unconstitutional because arbitrary or unreasonable. It is that § 4 is unconstitutional because use of the highways for interstate commerce is denied unless the prescribed certificate shall have been secured. Buck applied for a certificate. Thus he invoked the exercise of the power which he now assails. One who invokes the provisions of a law may not thereafter question its constitutionality. The argument is unsound. It is true that one cannot in the same proceeding both assail a statute and rely upon it. Hurley n. Commission of Fisheries, 257 U. S. 223, 225. Compare Wall v. Parrot Silver & Copper Co., 244 U. S. 407, 411. Nor can one who avails himself of the benefits conferred by a statute deny its validity. 307 BUSH CO. v. MALOY. Syllabus. 317 St. Louis Co. v. Prendergast Co., 260 U. S. 469, 472. But in the case at bar, Buck does not rely upon any provision of the statute assailed; and he has received no benefit under it. He was willing, if permitted to use the highways, to comply with all laws relating to common carriers. But the permission sought was denied. The case presents no element of estoppel. Compare Arizona v. Copper Queen Mining Co., 233 U. S. 87, 94 et seq. Reversed. Mr. Justice McReynolds dissented and delivered a separate opinion in this case and the one next following. See post, p. 325. GEORGE W. BUSH & SONS COMPANY v. MALOY ET AL., CONSTITUTING THE PUBLIC SERVICE COMMISSION OF MARYLAND. ERROR TO THE COURT OF APPEALS OF THE STATE OF MARYLAND. No. 185. Argued January 16, 1925.—Decided March 2, 1925. 1. A statute of Maryland, 1922, c. 401, prohibits common carriers of merchandise or freight by motor vehicle from using public highways over specified routes without a permit; requires a commission to investigate the expediency of granting a permit when applied for, and authorizes it to refuse if it ¡deems the granting of the permit prejudicial to the welfare and convenience of the public. Held unconstitutional as applied to one desirous of .using the highways as a common carrier in exclusively interstate commerce. Buck v. Kuykendall, ante, p. 307. P. 323. 2. The facts that the highways here in question were not constructed or improved with federal aid, and that refusal of the permit is not mandatory under the statute but in exercise of a broad discretion vested in the commission, do not affect this conclusion. P. 324. 143 Md. 570, reversed. 318 OCTOBER TERM, 1924. Argument for Plaintiff in Error. 267 U. S. Error to a judgment of the Court of Appeals of Maryland which affirmed a judgment dismissing a bill for an injunction. Mr. William L. Rawls and Mr. George Weems Williams for plaintiff in error. The proprietary interest of the State of Maryland in its highways gives it no power to prohibit their use for the purpose of transporting goods for hire in interstate commerce, where the vehicles employed are such as are freely permitted by the State to be used upon its highways. The fact that Congress has enacted no legislation affecting or regulating interstate motor transportation does not leave the States free to prohibit such transportation. By virtue of the commerce clause of the federal Constitution, the right to engage in interstate commerce cannot be denied by any State, and the question as to whether or not the public interest will be promoted by any limitation upon this right is one exclusively for the determination of Congress. Gibbons v. Ogden, 9 Wheat. 1; Pensacola Tel. Co. v. Western Union Co., 96 U. S. 9; Poole v. Electric Ry. Co., 88 Md. 533; Peddicord n. R. Co., 34 Md. 463; Adams Express Co. v. New York, 232 U. S. 14. That § 4 of the Act of 1922, was intended to deal with this right to engage in interstate business, and was not concerned with the safety of the public upon the highways, appears not only from the language of the section, but is also clear from the fact that other sections of the article of the Code of Maryland, to which this act was an amendment, namely, Article 36, §§ 133-200, made elaborate and detailed provisions respecting the “rules of the road ” and the operation of automobiles thereon. The only aspect of public safety within the purview of the act, as construed by the Maryland Court of Appeals, is the reduction of the number of motor trucks upon the 317 BUSH CO. v. MALOY. Argument for Plaintiff in Error. 319 highways resulting from the elimination of the trucks of any common carrier whose use are not essential to the needs and convenience of the public. This is but the assertion after all, of the power to determine what the needs and convenience of the public are with respect to interstate transportation, and of the right on the part of the State to exercise a power which has been delegated exclusively to Congress. When there has been no attempt to restrict by legislation the use of the highways by the public generally, and when they are freely opened to everybody else, it is manifest that whatever may be the power of the State with respect to a carrier engaged in domestic commerce purely, it cannot under such circumstances exclude carriers engaged in interstate commerce solely upon the fragile ground that their exclusion will result in the lessening of the number of vehicles upon the road and will to that extent promote the safety of the traveling public. If common carriers in interstate commerce could be excluded on any such ground when using exactly the same vehicles which are freely permitted upon the highways, then for the same reason the State would have the power to select any other form of interstate commerce and impose the same restrictions upon it, thus giving it control over the whole field of interstate commerce in so far as the use of its highways in that connection is concerned. It cannot escape notice that the several recent decisions of the state and lower federal courts upon this subject, (Northern Pacific Ry. Co. v. Schoenfeldt, 123 Wash. 570; Interstate Motor Transit Co. v. Kuykendall, 284 Fed. 882; Liberty Highway Co. v. Michigan Public Utilities Co., 294 Fed. 702; Interstate Transit Company n. Derr et al., 228 Pac. 624) in effect concede that there is no peculiar power vested in the States by reason of their mere ownership of their highways; for they all announce that the legislation of the States undertaking to regulate 320 OCTOBER TERM, 1924. Argument for Defendants in Error. 267 U. S. interstate travel over highways is only sustainable in the absence of regulation by Congress. The failure of Congress to enact legislation is equivalent to the declaration of freedom from any state interference. Oklahoma v. Kansas National Gas Co., 221 U. S. 229. In a long line of cases this Court has held that a State has no power whatever to require the obtaining of a license from it as a prerequisite to engaging in interstate commerce. Adams Express Co. v. New York, supra; Crutcher v. Kentucky, 141 U. S. 47; Western Union Telegraph Co. v. Kansas, 216 U. S. 1. The right to transport goods in accustomed ways, and to use existing instrumentalities for that purpose upon complying with the conditions imposed upon the public generally, is clearly interstate commerce, national in character. Distinguishing Pennsylvania Gas Co. v. Public Service Comm., 252 U. S. 23; Port Richmond & B. P. Ferry Co. v. Hudson County, 234 U. S. 317. See Sault Ste. Marie v. International Transit Co., 234 U. S. 333. Mr. Thomas H. Robinson, Attorney General of the State of Maryland, and Mr. Edward H. Burke, Assistant Attorney General, for defendants in error. The State, at the cost of many millions of dollars to the taxpayers, has established a fine system of improved public highways, and is expending millions more in the extension, improvement and maintenance of this system. Some of the public highways over which the plaintiff in error seeks to operate its motor trucks, as instrumentalities of interstate commerce, were built by and are owned by the State, and others are the property of certain counties of the State. The State has declared that certain carriers of passengers, as well as common carriers of merchandise or freight by means of motor vehicles, shall not operate their motor trucks over streets and public highways of the State without permission granted by the Public Service Commission. 317 BUSH CO. v. MALOY. Argument for Defendants in Error. 321 Jitney busses and taxi-cabs for the public transportation of passengers, and common carriers of freight and merchandise, are numerous, and all are operating their motor vehicles by the permission of the State. It is common knowledge that large trucks, such as the plaintiff in error proposes to use, are not only dangerous to the persons and property of other users of the road, but are destructive of the highways themselves and interfere a great deal with the convenience of travel. If the position of the plaintiff in error be sustained, common carriers of freight or passengers by simply incorporating in an adjoining State and confining themselves to interstate commerce would escape all control of the State in matters of vital interest to the people. The principles controlling in a case like this, where Congress has taken no action with respect to the interstate transportation involved, are stated in Minnesota Rate Cases, 230 U. S. 352. By reason of difference in the character, construction, width and location of roads and the strength of bridges in the various States, it appears doubtful if any general system or uniformity of regulation could be adopted, and as the matter admits of such “diversity of treatment according to the special requirements of local conditions,” it has been left with the States until Congress sees fit to act. Hendrick n. Maryland, 235 U. S. 610, and Kane n. State, 242 U. S. 160, support our contention. That there is a necessity for regulation is evidenced by the fact that no less than thirty-one States of the Union have enacted statutes on the subject. The question, therefore, narrows itself into one of reasonableness vel non of the Maryland statute. The right asserted by the plaintiff in error is not the right of travel over the highway in the customary and ordinary way, but the privilege of making the highway itself a place of business. It is this special and extraor-42684°—25--------21 322 OCTOBER TERM, 1924. Argument for Defendants in Error. 267 U. S. dinary use of the highway that the statute is designed to regulate. In ex parte Dickey, 76 W. Va. 576; Schoenfeld v. Seattle, 265 Fed. 726; Nolen v. Riechman, 225 Fed. 812; State v. Darazza, (Conn.) 118 Atl. 81; Gizzarelli v. Presbrey, (R. I.) 117 Atl. 359. The Maryland Act, recognizing that “the movement of motor vehicles over the highways is attended by constant and serious danger to the public, and is also abnormally destructive of the ways themselves ”, was designed, as found by the Court of Appeals, “to restrict to the needs of the public the number of motor vehicles used in the transportation of freight or merchandise upon any one route and thereby avoid the additional injury and damage to the roads or highways, and the danger to persons traveling thereon, that would result from the use of a greater number than the needs and convenience of the public require.” The public for whose protection the Maryland statute was passed are all those who use the highways in the exercise of the right to travel over them which is common to all and which is freely accorded to all alike by the State, whether engaged in intrastate or interstate commerce. The Act, therefore, in so far as it assures and protects the common and ordinary right of citizens of other States in the use of the highways, so far from unreasonably restricting and forbidding interstate commerce, is in aid of such commerce. The width of the road, the character of its construction, the strength of the bridges, the amount of ordinary and customary travel on the road, the special and extraordinary uses to which it may have already been subjected, are all circumstances to be taken into consideration in determining whether or not an additional burden upon the road by way of a freight motor bus line is “prejudicial to the welfare and convenience of the public.” There must be some limitation upon such rights as are asserted by the plaintiff in error in this case. To make BUSH CO. v. MALOY. 323 317 Opinion of the Court. the exercise of such rights depend upon the welfare and convenience of the public and to restrict or deny them if their exercise be prejudicial to such welfare and convenience, is both reasonable and necessary. Crutcher v. Kentucky, 141 U. S. 47, and Adams Express Co. v. New York, 232 U. S. 14, distinguished. Neither by the Act of 1922 nor by the order of the Commission complained of is it required that the plaintiff in error shall obtain a permit from the Commission as a condition of carrying on interstate commerce. Neither the Act nor the order imposes any direct or indirect burden or restriction upon the plaintiff’s right to engage in interstate commerce. The only effect of the order is that it cannot operate its trucks over the highways of the State as it has done and proposes to continue to do. Neither the Act nor the order is a commercial regulation. Mr. Justice Brandeis delivered the opinion of the Court. A statute of Maryland prohibits common carriers of merchandise or freight by motor vehicle from using the public highways over specified routes without a permit. The Public Service Commission is charged with the duty to “ investigate the 'expediency of granting said permit ” when applied for ; and it is authorized to refuse the same if it “deems the granting of such permit prejudicial to the welfare and convenience of the public.” Laws of Maryland, 1922, c. 401, § 4. George W. Bush & Sons Co. applied for a permit to do an exclusively interstate business as a common carrier of freight over specified routes, alleging its willingness and intention to comply with all applicable regulations concerning the operation of motor vehicles. After due hearing the permit was denied. This suit was brought in a court of the State to restrain the state officials from inter- 324 OCTOBER TERM, 1924. Opinion of the Court. 267 U.S. fering with such use of the company’s trucks. The bill alleged, and it was admitted by demurrer, that the highways were not unduly congested; that they are so constructed that they can carry burdens heavier than that which would be imposed by plaintiff’s trucks; that the operation of its trucks would impose no different burden upon the highways than the operation of the trucks of the same kind and character by private persons, which was freely permitted; and that, in refusing the permit, the Commission had considered merely “ whether or not existing lines of transportation would be benefited or prejudiced and in this way the public interest affected.” The plaintiff claimed that, regardless of permit, it was entitled to use the highways as a common carrier in exclusively interstate commerce. The trial court dismissed the bill. Its decree was affirmed by the highest court of the State. 143 Md. 570. The case is here on writ of error under § 237 of the Judicial Code. This case presents two features which were not present in Buck v. Kuykendall, ante, p. 307, decided this day. The first is that the highways here in question were not constructed or improved with federal aid. This difference does not prevent the application of the rule declared in the Buck Case. The federal-aid legislation is of significance, not because of the aid given by the United States for the construction of particular highways, but because those acts make clear the purpose of Congress that state highways shall be open to interstate commerce. The second feature is that here the permit was refused by the Commission, not in obedience to a mandatory provision of the state statute, but in the exercise, in a proper manner, of the broad discretion vested in it. This difference also is not of legal significance in this connection. The state action in the Buck Case was held to be unconstitutional, not because the statute prescribed an arbitrary test for the granting of permits, or because the Director of 317 BUSH CO. v. MALOY. McReynolds, J., dissenting. 325 Public Works had exercised the power conferred arbitrarily or unreasonably, but because the statute as construed and applied invaded a field reserved by the Commerce Clause for federal regulation. Reversed. The separate opinion of Mr. Justice McReynolds, delivered in this case and the one immediately preceding it, ante, p. 307. I am of opinion that the courts below reached correct conclusions in these causes. The States have spent enormous sums in constructing roads and must continue to maintain and protect them at great cost if they are to remain fit for travel. The problems arising out of the sudden increase of motor vehicles present extraordinary difficulties. As yet nobody definitely knows what should be done. Manifestly, the exigency cannot be met through uniform rules laid down by Congress. Interstate commerce has been greatly aided—amazingly facilitated, indeed—through legislation and expenditures by the States. The challenged statutes do not discriminate against such commerce, do not seriously impede it, and indicate an honest purpose to promote the best interests of all by preventing unnecessary destruction and keeping the ways fit for maximum service. The Federal Government has not and cannot undertake precise regulations. Control by the States must continue, otherwise chaotic conditions will quickly develop. The problems are essentially local, and should be left with the local authorities unless and until something is done which really tends to obstruct the free flow of commercial intercourse. The situation is similar to the one growing out of the necessity for harbor regulations. State statutes concerning pilotage, for example, have been upheld although they 326 OCTOBER TERM, 1924. Statement of the Case. 267 U. S. amounted to regulation of interstate and foreign commerce. “They fall within that class of powers which may be exercised by the States until Congress has seen fit to act upon the subject.” Olsen v. Smith, 195 U. S. 332, 341. SMYTH ET AL. v. ASPHALT BELT RAILWAY COMPANY ET AL. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF TEXAS, TRANSFERRED FROM THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT, PURSUANT TO THE ACT OF CONGRESS OF SEPTEMBER 14, 1922. No. 206. Argued January 20, 1925.—Decided March 2, 1925. 1. The propriety of a transfer of a case from the Circuit Court of Appeals will be inquired into by this Court of its own motion. P. 327. 2. A decree of the District Court dismissing a bill “ for lack of jurisdiction ” but in the absence of any challenge of the court’s jurisdiction as a federal court, and based upon a conclusion, after full hearing upon pleadings and evidence, that the acts sought to be enjoined were not violative of rights claimed by the plaintiff under a federal statute,—held, not to involve the jurisdiction of the District Court as a federal court, and not appealable directly to this Court, but to the Circuit Court of Appeals. P. 328. 3. When the District Court lacks jurisdiction as a federal court it is without power to impose costs on the plaintiff. P. 330. 292 Fed. 876, returned to the Circuit Court of Appeals. Appeal from a decree of the District Court which dismissed a bill by which the appellants sought to enjoin condemnation of their land for railway purposes. The case was transferred to this Court by the Circuit Court of Appeals, to which the appeal was taken. It' is now returned to that court. SMYTH v. ASPHALT BELT RY. 327 326 Opinion of the Court. Mr. Robert H. Kelly, with whom Mr. T. W. Gregory and Mr. Frank Andrews were on the brief, for appellants. Mr. Mason Williams and Mr. J. D. Wheeler, with whom Mr. R. J. Boyle and Mr. G. W. Wharton were on the brief, for appellees. Mr. Justice Brandeis delivered the opinion of the Court. This is an appeal from a decree of the federal court for western Texas which dismissed a bill in equity with costs. There was a full hearing upon pleadings and evidence. The plaintiffs had moved for an interlocutory injunction; the defendants to dismiss the bill. 292 Fed. 876. The decree recited, as the ground for dismissal, “ that the court is without jurisdiction.” The plaintiff took an appeal to the Circuit Court of Appeals, assigning fifteen errors, of which only a few referred in any way to jurisdiction. The appellate court was of opinion that, under the rule declared in United States v. Jahn, 155 U. S. 109, it was without jurisdiction, because the jurisdiction of the District Court had been challenged and the decision there was in favor of the defendants. The Court of Appeals, therefore, transferred the case to this Court, pursuant to the Act of September 14, 1922, c. 305, 42 Stat. 837. See McMillan Contracting Co. v. Abernathy, 263 U. S. 438. Whether the transfer should have been made is the preliminary question requiring decision, although not raised by counsel. Smith v. Apple, 264 U. S. 274, 275. If the jurisdiction of the District Court as a federal court was the question there in issue, and was the only question, it is clear that, under § 238, this Court alone had jurisdiction of the appeal, Chappell v. United States, 160 U. S. 499, 508; The Carlo Poma, 255 U. S. 219, and it was proper to transfer the case, Hoffman v. McClelland, 264 U. S. 552. But if the question, called one of juris- 328 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. diction by the lower courts, was not, in fact, a question of the jurisdiction of the federal court as such, but whether the action complained of violated a federal law, Louie v. United States, 254 U. S. 548; Binderup v. Pathe Exchange, Inc., 263 U. S. 291, 304-308, or whether a power possessed by the court should be exercised, Smith v. Apple, 264 U. S. 274; Oliver American Trading Co., Inc. v. Mexico, 264 U. S. 440, then the appeal was properly taken to the Circuit Court of Appeals. The proceedings in the District Court, including its opinion and decree, and the briefs filed in this Court, show that at no time was the jurisdiction of the trial court as a federal court questioned there; and that its jurisdiction as a federal court was clear. The suit was brought as one “ arising under the Constitution and Laws of the United States ” and particularly under the Act to Regulate Commerce as amended. The sum involved was alleged to exceed three thousand dollars exclusive of interest and costs. All the defendants were alleged to be citizens and residents of the district. All were duly served. All appeared generally, answered and introduced evidence. The motion to dismiss assigned the grounds therefor; and lack of jurisdiction of the court as a federal court was not one of them. Lack of merits, lack of equity, and lack of that status which alone would entitle a private individual to sue were the objections urged. Lack of jurisdiction over the subject matter was also asserted in terms, but the pleadings and the opinion of the District Court show that this expression was not intended as a challenge of the jurisdiction of the court as a federal court, but as a denial of fundamental allegations in the bill essential to a cause of action and to the relief under the federal statute invoked. The bill alleged that the plaintiffs owned a tract of land in Texas; that the two corporate defendants, and another defendant, who was the receiver of one of them, were 326 SMYTH v. ASPHALT BELT RY. Opinion of the Court. 329 purposing to construct a railroad across the land ; that, to this end, they were proceeding under a statute of the State to condemn, in the name of one of these corporations, a right of way over the land; that the proposed railroad is in fact an extension of the line of the other railroad corporation which is engaged in interstate commerce; that the new line is intended to be used in interstate commerce and that, irrespective of intention, it will be required by the laws of Texas to be open to such commerce; that it cannot legally be constructed without there first having been obtained from the Interstate Commerce Commission a certificate of public convenience and necessity as provided in paragraphs 18 to 20 of § 1 of the Act to Regulate Commerce as amended by Transportation Act, 1920, c. 91, 41 Stat. 456, 477, 478; that the proposed condemnation of plaintiffs’ land was undertaken without first having secured such certificate; and that this action violates plaintiffs’ rights under the federal statute. The District Court said in its opinion: “ Since the plaintiffs’ right to injunction rests upon provisions of an Act of Congress regulating interstate commerce, the Court would be without jurisdiction unless the facts show: (1) That the Asphalt Belt Railroad Company is owned and controlled by the San Antonio, Uvalde & Gulf Railroad Company, an interstate carrier, thus constituting it an extension and branch of the latter road, or (2) that the A. B. Company is obliged by law, and its purpose is, to carry on business as an interstate carrier. The trial court found, on the evidence and as matter of law, that the railroad which had instituted and brought condemnation proceedings was an independent intrastate carrier; that it was not obliged to conduct an interstate business; and that, hence, its action in instituting condemnation proceedings, without first obtaining a certificate from the Interstate Commerce Commission, was 330 OCTOBER TERM, 1924. Statement of the Case. 267 U. S. not in contravention of the federal law. It is on this ground, and this only, that the District Court declared the bill should be dismissed for lack of jurisdiction; meaning obviously that, upon the facts found, it was not warranted in enjoining the condemnation proceedings, and not that as a federal tribunal it was without power to entertain the suit and inquire into the matters alleged in the bill. This conclusion is confirmed by the fact that the plaintiffs were ordered to pay “ all costs.” If the District Court had lacked jurisdiction as a federal court, it would have been without power to order the plaintiffs to pay costs. Blacklock v. Small, 127 U. S. 96; Citizens’ Bank v. Cannon, 164 U. S. 319. The cause must be Returned to the Circuit Court of Appeals with directions to proceed. FORT SMITH LIGHT & TRACTION COMPANY v. BOURLAND ET AL., CITY COMMISSIONERS OF THE CITY OF FORT SMITH, ARKANSAS. ERROR TO THE SUPREME COURT OF THE STATE OF ARKANSAS. No. 220. Argued January 22, 1925.—Decided March 2, 1925. An order in effect requiring a street railway company to continue operating a part of one of its lines, though it was unremunerative and must be practically rebuilt at great expense to conform to a change of street grade, and though the railway as a whole, under existing rates, was not earning a fair return, held not arbitrary and not violative of the due process clause of the Fourteenth Amendment. P. 332. 160 Ark. 1, affirmed. Error to a judgment of the Supreme Court of Arkansas which affirmed a judgment dismissing a bill brought by the Traction Company to set aside an order made by the FORT SMITH TRACTION CO. v. BOURLAND. 331 330 Opinion of the Court. City Commissioners denying it leave to abandon a part of one of its lines. The opinion is here printed as amended by an order of April 27, 1925, which also denied a petition for rehearing. Mr. R. M. Campbell, with whom Mr. Joseph M. Hill and Mr. Henry L. Fitzhugh were on the brief, for plaintiff in error. Mr. Sam R. Chew, Mr. Harry P. Daily and Mr. Geo. W. Dodd appeared for defendants in error. Mr. Justice Brandeis delivered the opinion of the Court. The Fort Smith Light & Traction Company owns and operates in that city a street railway system with about 22 miles of Une. Included in the system is a line extending, for a third of a mile, on Greenwood Avenue. Under the law of Arkansas, a street railway is not permitted to abandon any part of its line without leave of the city commission which exercises the powers of a public utility commission. The company applied to that board for leave to abandon the line on Greenwood Avenue because it was, and would be, unremunerative. It appeared, among other things, that the city had concluded to change the grade of Greenwood Avenue; that in accepting its franchise the company had agreed to conform to the city ordinances; that these required a street railway, in case of any change in the grade of a street, to make the grade of the tracks conform thereto; that the cost of so relaying the tracks on Greenwood Avenue was estimated at $11,000; that the allocated daily earnings of this small part of the system were $2.40, the cost of operating it $8.25; and that the total net earnings of the system in 1922 were $16,000, which amount is about 1.7 per cent, of $934,540, the estimated value of the property. The 332 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. request to abandon the Greenwood Avenue line was denied. This suit was then brought in a court of the State to set aside the order on the ground, among others, that it deprived the company of its property in violation of the due process clause of the Fourteenth Amendment. The trial court denied the relief sought. Its judgment was affirmed by the highest court of the State. 160 Ark. 1. The case is here on writ of error under § 237 of the Judicial Code. The Greenwood Avenue line had been in operation nearly twenty years. No change in conditions had supervened which required the commission to permit the abandonment, unless1 it were the fact that this particular part of the system was being operated at a loss; that continued operation would involve practical rebuilding of that part of the line; that such rebuilding would entail a large expenditure; and that the system as a whole was not earning a fair return upon the value of the property used and useful in the business. The order complained of does not deal with rates. Nor does it involve the question of the reasonableness of service over a particular line. Compare Atlantic Coast Line R. R. Co. v. Corporation Commission, 206 U. S. 1, 23-27; Railroad Commission v. Mobile & Ohio R. R. Co., 244 U. S. 388. It merely requires continued operation. We cannot say that it is inherently arbitrary. A public utility cannot, because of loss, escape obligations voluntarily assumed. Milwaukee Electric Ry Co. v. Milwaukee, 252 U. S. 100, 105. The fact that the company must make a large expenditure in relaying its tracks does not render the order void. Nor does the expected deficit from operation affect its validity. A railway may be compelled to continue the service of a branch or part of a line, although the operation involves a loss. Missouri Pacific Ry. Co. v. Kansas, 216 U. S. 262, 279; Chesapeake & Ohio Ry. Co. v. Public Service Commission, 242 U. S. 603, 607. Compare Railroad Commis- 330 CANNON MFG. CO. v. CUDAHY CO. 333 Statement of the Case. sion v. Eastern Texas R. R. Co., 264 U. S. 79, 85. This is true even where the system as a whole fails to earn a fair return upon the value of the property. So far as appears, this company is at liberty to surrender its franchise and discontinue operations throughout the city. It cannot, in the absence of contract, be compelled to continue to operate its system at a loss. Brooks-Scanlon Co. v. Railroad Commission of Louisiana, 251 U. S. 396. But the Constitution does not confer upon the company the right to continue to enjoy the franchise or indeterminate permit and escape from the burdens incident to its use. Affirmed. CANNON MANUFACTURING COMPANY v. CUDAHY PACKING COMPANY. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF NORTH CAROLINA. No. 255. Argued January 28, 1925.—Decided March 2, 1925. 1. Defendant, a Maine corporation, marketed its products in North Carolina through a subsidiary, an Alabama corporation which it completely dominated through stock ownership and otherwise, but a distinct corporate entity which did not act as the defendant’s agent but bought the defendant’s goods and sold them to dealers to be shipped directly from the defendant. Held, (a) That the defendant corporation did not thereby do business in North Carolina so as to be present there and suable in the federal court. P. 334. (6) That the concentration of the Alabama corporation’s stock in the defendant’s single ownership and the legal consequences of this under the Alabama law did not have the effect of rendering its business in North Carolina the business of the defendant for purposes of jurisdiction. P. 337. 292 Fed. 169, affirmed. Appeal from a judgment dismissing an action on contract for want of jurisdiction over the defendant corporation. 334 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. Mr. C. W. Tillett, Jr., with whom Mr. E. T. Cansler and Mr. C. W. Tillett were on the brief, for plaintiff in error. Mr. J. Harry Covington, with whom Mr. Thomas Creigh, Mr. R. B. Webster, Mr. Frank M. Shannonhouse and Mr. John M. Robinson were on the brief, for defendant in error. Mr. Justice Brandeis delivered the opinion of the Court. Cannon Manufacturing Company, a North Carolina corporation, brought, in a court of that State, this action against Cudahy Packing Company, a Maine corporation, for breach of a contract to purchase cotton sheeting for use in packing meat. The defendant appeared specially for the purpose of filing a petition for removal to the federal court for western North Carolina; and the order of removal issued. In that court the defendant, appearing specially, moved that the summons be set aside and the action dismissed for lack of jurisdiction. The ground of the motion was that the defendant was not doing business within the State and had not been served with process. The only service made was, as the sheriff’s return recites, the delivery of a copy of the “ summons and complaint to Cudahy Packing Company of Alabama, agent of defendant, Frank H. Ross, to whom papers were delivered, being process agent of Cudahy Company of Alabama.” The District Court, concluding upon the evidence that the defendant was not present in North Caroline, entered a final judgment dismissing the action. 292 Fed. 169. The case is here under § 238 of the Judicial Code, the question of jurisdiction having been duly certified. The main question for decision is whether, at the time of the service of process, defendant was doing business within the State in such a manner and to such an extent 333 CANNON MFG. CO. v. CUDAHY CO. 335 Opinion of the Court. as to warrant the inference that it was present there. Bank of America v. Whitney Central National Bank, 261 U. S. 171. In order to show that it was, the plaintiff undertook to establish identity pro hoc vice between the defendant and the Alabama corporation. The Alabama corporation, which has an office in North Carolina, is the instrumentality employed to market Cudahy products within the State; but it does not do so as defendant’s agent. It buys from the defendant and sells to dealers. In fulfilment of such contracts to sell, goods packed by the defendant in Iowa are shipped direct to dealers; and from them the Alabama corporation collects the purchase price. Through ownership of the entire capital stock and otherwise, the defendant dominates the Alabama corporation, immediately and completely; and exerts its control both commercially and financially in substantially the same way, and mainly through the same individuals, as it does over those selling branches or departments of its business not separately incorporated which are established to market the Cudahy products in other States. The existence of the Alabama company as a distinct corporate entity is, however, in all respects observed. Its books are kept separate. All transactions between the two corporations are represented by appropriate entries in their respective books in the same way as if the two were wholly independent corporations. This corporate separation from the general Cudahy business was doubtless adopted solely to secure to the defendant some advantage under the local laws. The objection to the maintenance of the suit is not procedural—as where it is sought to defeat a suit against a foreign corporation on the ground that process has been served upon one not authorized to act as its agent. Pennsylvania Lumbermen’s Mutual Fire Insurance Co. v. Meyer, 197 U. S. 407; St. Louis Southwestern Ry. Co. n. Alexander, 227 U. S. 218, 226. See Philadelphia & Read- 336 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. ing Ry. Co. v. McKibben, 243 U. S. 264. The obstacle insisted upon is that the court lacked jurisdiction because the defendant, a foreign corporation, was not within the State. No question of the constitutional powers of the State, or of the federal Government, is directly presented. The claim that jurisdiction exists is not rested upon the provisions of any state statute or upon any local practice dealing with the subject. The resistance to the assumption of jurisdiction is not urged on the ground that to subject the defendant to suit in North Carolina would be an illegal interference with interstate commerce. Compare International Harvester Co. v. Kentucky, 234 U. S. 579, 587-9. The question is simply whether the corporate separation carefully maintained must be ignored in determining the existence of jurisdiction. The defendant wanted to have business transactions with persons resident in North Carolina, but for reasons satisfactory to itself did not choose to enter the State in its corporate capacity. It might have conducted such business through an independent agency without subjecting itself to the jurisdiction. Bank of America v. Whitney Central National Bank, 261 U. S. 171. It preferred to employ a subsidiary corporation. Congress has not provided that a corporation of one State shall be amenable to suit in the federal court for another State in which the plaintiff resides, whenever it employs a subsidiary corporation as the instrumentality for doing business therein. Compare Lumiere v. Mae Edna Wilder, Inc., 261 U. S. 174,177-8. That such use of a subsidiary does not necessarily subject the parent corporation to the jurisdiction was settled by Conley v. Mathieson Alkali Works, 190 U. S. 406, 409-11; Peterson v. Chicago, Rock Island & Pacific Ry. Co., 205 U. S. 364; and People’s Tobacco Co., Ltd. v. American Tobacco Co., 246 U. S. 79, 87. In the case at bar, the identity of interest may have been more complete and the exercise of control over the subsidiary CANNON MFG. CO. v. CUDAHY CO. 337 333 Opinion of the Court. more intimate than in the three cases cited, but that fact has, in the absence of an applicable statute, no legal significance. The corporate separation, though perhaps merely formal, was real. It was not pure fiction. There is here no attempt to hold the defendant liable for an act or omission of its subsidiary or to enforce as against the latter a liability of the defendant. Hence, cases concerning substantive rights, like Hart Steel Company v. Railroad Supply Co., 244 U. S. 294; Chicago, etc. Ry. Co. v. Minneapolis Civic Association, 247 U. S. 490; Gulf Oil Corp. v. Lewellyn, 248 U. S. 71; and United States v. Lehigh Valley R. R. Co., 254 U. S. 255, have no application. The plaintiff contends, on a further ground, that the defendant was present in North Carolina. The argument is that there is no such thing as a corporation sole under the laws of Alabama; that three stockholders are necessary in order to sustain the existence of a corporate entity; that where the number of members falls below three the entity falls into a state of suspense; that the defendant, in fact, owned all the stock in the Alabama corporation; that the directors of the latter could not have been bona fide directors because not stockholders; that its franchise was suspended, First National Bank of Gadsden v. Winchester, 119 Ala. 168; and that therefore what was done in North Carolina must have been done by the defendant. No Alabama case has been cited, or found, which determines the effect, in that State, of such alleged suspense. Nor has any case been cited, or found, which determines what would be its effect under the law of North Carolina. It is not contended that the Alabama corporation was dissolved ipso facto by this concentration of its stock—or that its property became, in law, that of the defendant. It may be that upon the concentration of its stock in the hands of the defendant, the franchise of the Alabama corporation became subject to 42684°—25------22 338 OCTOBER TERM, 1924. Syllabus. 267 U. S. forfeiture in a judicial proceeding by the State; or that thereby its status was reduced from a corporation de jure to one de facto. But whatever might be other legal consequences of the concentration, we cannot say that for purposes of jurisdiction, the business of the Alabama corporation in North Carolina became the business of the defendant. Affirmed. MERRITT v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 159. Argued January 5, 1925.—Decided March 2, 1925. 1. Action by a sub-contractor in the Court of Claims, held not maintainable under the Dent Act, §§ 1 and 4, the petition not showing an agreement with the plaintiff entered into by or under authority of the Secretary of War, or performed, etc., prior to November 12, 1918, or a claim presented before June 30, 1919, or that, before a payment was made by the Government to the prime contractor, the plaintiff had made expenditures, etc., “ with the knowledge or approval of any agent of the Secretary of War duly authorized thereunto.” P. 340. •2. Where a contractor, upon settling with the Government under the Dent Act, induced the claimant to release his sub-contract for less than was due him by fraudulently misrepresenting to him the basis upon which the settlement was made, and the Government, learning this, exacted a repayment to itself from the contractor of of an amount equal to that of which the claimant had thus been defrauded, but it did not appear that the exaction was for the claimant’s benefit, held, that the claimant had no cause of action to recover this amount from the United States under the Tucker Act, since the United States was under no express contract to pay the claimant and none was to be implied in fact. P. 340. 3. The Tucker Act does not give a right of action against the United States in those cases where, if the transaction were between private parties, recovery could be had upon a contract implied in law. Id. 4. The practice of the Court of Claims does not allow a general statement of claim in analogy to the common counts, but requires MERRITT v. UNITED STATES. 339 338 Opinion of the Court. a plain, concise statement of the facts relied on, not leaving the defendant in doubt as to what must be met. P. 341. 58 Ct. Clms. 371 affirmed. Appeal from a judgment of the Court of Claims dismissing the petition on demurrer. Mr. L. B. Perkins for appellant, submitted. Mr. L. A. Widmayer was also on the briefs. Mr. Alfred A. Wheat, Special Assistant to the Attorney General, with whom Mr. Solicitor General Beck, Mr. As-sistant Attorney General Lovett and Mr. Roscoe R. Koch, Special Assistant to the Attorney General, were on the brief, for the United States. Mr. Justice Brandeis delivered the opinion of the Court. In July, 1918, or earlier, the United States contracted with the Panama Knitting Mills for a quantity of khaki at $3.20 a yard. In June, 1919, this contract was cancelled by a new agreement between the Government and the Mills, made pursuant to the Dent Act, March 2, 1919, c. 94, 40 Stat. 1272. Under the cancellation agreement the Government adjusted its liability by accepting delivery of half of the khaki originally contracted for, paying the contract rate together with the carrying charges. The Mills had a sub-contract with the plaintiff for the supply of the khaki. By falsely representing that the Government compelled settlement on the basis of $2.50 a yard plus the carrying charges, the Mills induced the plaintiff to release it, on that basis, from the sub-contract. When the Government learned of the fraud thus perpetrated, it exacted from the Mills a repayment of $5,210.02—the difference between the amount actually paid by the Government and what would have been paid if settlement had been made on the basis of $2.50 a yard. 340 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. This suit was brought in March, 1923, to recover from the United States the sum so repaid. The Court of Claims dismissed the petition on demurrer for failure to state a cause of action. The case is here on appeal under § 242 of the Judicial Code. Plaintiff cannot recover under the Dent Act. There are three obstacles. It does not appear, as required by § 1, that, prior to November 12, 1918, an agreement with the plaintiff, express or implied, was entered into by the Secretary of War, or “ by any officer or agent acting under his authority, direction, or instruction, or that of the President.” Baltimore <& Ohio R. R. Co. v. United States, 261 U. S. 385; Baltimore & Ohio R. R. Co. v. United States, 261 U. S. 592. It does not appear, as required by § 1, that any such agreement had been “performed . . , or expenditures . . made or obligations incurred upon the faith of the same . . prior to ” November 12, 1918. Price Fire & Water Proofing Co. v. United States, 261 U. S. 179, 183. It does not appear, as required by § 1, that the claim sued on was presented before June 30, 1919. The Dent Act affords relief although there is no agreement “ executed in the manner prescribed by law,” but only under the conditions stated. The plaintiff is not helped by § 4 which deals with sub-contracts; among other reasons, because it does not appear, as therein prescribed, that, before the payment made by the Government to the prime contractor, the plaintiff had “ made expenditures, incurred obligations, rendered service, or furnished material, equipment, or supplies to such prime contractor, with the knowledge and approval of any agent of the Secretary of War duly authorized thereunto.” Plaintiff cannot recover under the Tucker Act, Judicial Code, § 145, 24 Stat. 505. The petition does not allege any contract, express or implied in fact, by the Government with the plaintiff to pay the latter for the khaki on MITCHELL v. UNITED STATES. 341 338 Syllabus. any basis. Nor does it set forth facts from which such a contract will be implied. The pleader may have intended to sue for money had and received. But no facts are alleged which afford any basis for a claim that the repayment made by the Mills was exacted by the Government for the benefit of the plaintiff. The Tucker Act does not give a right of action against the United States in those cases where, if the transaction were between private parties, recovery could be had upon a contract implied in law. Tempel v. United States, 248 U. S. 121; Sutton v. United States, 256 U. S. 575, 581. For aught that appears repayment was compelled solely for the benefit of the Government, under the proviso in § 1 of the Dent Act, which authorizes recovery of money paid under a settlement, if it has been defrauded. The practice of the Court of Claims, while liberal, does not allow a general statement of claim in analogy to the common counts. It requires a plain, concise statement of the facts relied upon. See Rule 15, Court of Claims. The petition may not be so general as to leave the defendant in doubt as to what must be met. Schierling v. United States, 23 Ct. Clms. 361; The Atlantic Works v. United States, 46 Ct. Clms. 57, 61; New Jersey Foundry & Machine Co. v. United States, 49 Ct. Clms. 235; United States v. Stratton, 88 Fed. 54, 59. Affirmed. MITCHELL ET AL. v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 176. Argued January 15, 1925.—Decided March 2, 1925. 1. The Act of October 6, 1917, c. 79, 40 Stat. 345, to increase facilities for testing ordnance materials, appropriated money to pay for buildings, land, etc., “ and damages and losses to persons . . . resulting from the procurement of the land,” and provided that, if land and improvements could not be procured by purchase, the 342 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. President was authorized to take them over, with all appurtenant rights, and the United States should make just compensation therefor, to be determined by the President; and that if the amount so determined were unsatisfactory to the person entitled, he should be paid 75% of it and be entitled to sue tjae United States under Jud. Code, §§ 24 and 145, to recover such further sum as added to the 75% would make up just compensation. Held:— That persons whose land was taken and who accepted the compensation fixed by the President, were not thereby precluded from claiming additional compensation under the Fifth Amendment, as for a taking of their business, or from claiming damages under the Act itself for the loss of the business. P. 344. 2. It is a settled rule that damages resulting from a loss or destruction of business incidental to a taking of land are not recoverable as part of the compensation for the land taken. Id. 3. By its reference to “losses ... resulting from procurement of land” the above Act doubtless authorized the Secretary of War to consider losses resulting from destruction of business when procuring land by agreement, but it is not to be construed as a departure from the settled policy of Congress to limit compensation for a taking of land to interests in the land taken. P. 345. 58 Ct. Clms. 443; affirmed. Appeal from a judgment of the Court of Claims rejecting, after full hearing, a claim for compensation for destruction of appellants’ business resulting from the taking of their land and other land in the vicinity. Mr. Horace S. Whitman and Mr. William L. Marbury, with whom Mr. Robert H. Archer and Mr. Robert H. Archer Jr. were on the brief, for appellant. Mr. Alfred A. Wheat, Special Assistant to the Attorney General, with whom Mr. Solicitor General Beck and Mr. Randolph S. Collins were on the brief, for the United States. Mr. Justice Brandeis delivered the opinion of the Court. Pursuant to the Act of October 6, 1917, c. 79, 40 Stat. 345, 352, the President declared that the large tract of 341 MITCHELL v. UNITED STATES. Opinion of the Court. 343 land in Maryland now known as the Aberdeen Proving Ground was needed for that military purpose. Proclama* tions, October 16, 1917 and December 14, 1917, 40 Stat. 1707, 1731. The land was thereafter acquired under that Act from the several owners either by purchase or by eminent domain. Among the parcels acquired by eminent domain was one of 440 acres belonging to the plaintiffs and used by them in the business of growing and canning corn of a special grade and quality. The establishment of the proving ground resulted in withdrawing from such use the available lands especially adapted to the growing of this particular quality of com. Plaintiffs were consequently unable to reëstablish themselves elsewhere in their former business. For their land, appurtenances and improvements, the President fixed $76,000 as just compensation. For the business, he made no allowance. The sum awarded was accepted without protest. In 1921 this suit was brought to recover $100,000 as compensation for the loss of their business. The Court of Claims, after a hearing upon the evidence, entered judgment for the defendant. 58 Ct. Clms. 443. The case is here on appeal under § 242 of the Judicial Code. The Act appropriated $7,000,000 for “ increasing facilities for the proof and test of ordnance material, including necessary buildings, construction, equipment, land, and damages and losses to persons, firms, and corporations, resulting from the procurement of the land for this purpose.” It then provided that, if the land, appurtenances and improvements could not be procured by purchase, the President was authorized to take over the immediate possession and title for the United States; that just compensation to be determined by the President should be made therefor; and that if the compensation so determined should prove unsatisfactory to the person entitled to receive it, he was to be paid seventy-five per cent, of that amount and was to be entitled to sue for whatever 344 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. further sum was required for just compensation. Plaintiffs make two contentions. The first is that, because the business was destroyed, they can recover, under the Fifth Amendment, as for a taking of the business upon a promise implied in fact, under the doctrine of United States v. Great Falls Manufacturing Co., 112 U. S. 645. The second contention is that, under the terms of the Act, they can recover damages for loss of the business although it may not have been taken. In support of each contention, they rely, among other things, upon the findings of fact that, before the passage of the Act, a representative of the War Department had given assurance publicly that compensation would be paid not only for the land taken by the Government but also for all injuries and losses sustained by any person as a result of the establishment of the proving ground; and that, both before and shortly after the passage of the Act, the Secretary of War had given somewhat similar assurances. The mere fact that compensation for the taking of the land was fixed by the President and was accepted does not bar recovery on the present claim, whether the suit be deemed to be upon a promise implied in fact for a taking or for the recovery of statutory damages. The claim now asserted is on account of property other than that for which the Act provided that compensation should be made upon the President’s determination. Acceptance of the award did not operate, under the doctrine of United States v. Childs & Co., 12 Wall. 232, as a voluntary settlement of this claim. There are, however, other obstacles to a recovery. The Act authorized the taking only of “ land and appurtenances and improvements attached thereto.” And it did not declare that compensation should be made for losses resulting from the establishment of the proving ground. The special value of land due to its adaptability for use in a particular business is an element which the owner MITCHELL v. UNITED STATES. 345 341 Opinion of the Court. of land is entitled, under the Fifth Amendment, to have considered in determining the amount to be paid as the just compensation upon a taking by eminent domain. Boom Co. v. Patterson, 98 U. S. 403, 408; New York n. Sage, 239 U. S. 57, 61. Doubtless such special value of the plaintiffs’ land was duly considered by the President in fixing the amount to be paid therefor. The settled rules of law, however, precluded his considering in that determination consequential damages for losses to their business, or for its destruction. Joslin Manujacturing Co. n. Providence, 262 U. S. 668, 675. Compare Sharp v. United States, 191 U. S. 341; Campbell v. United States, 266 U. S. 368. No recovery therefor can be had now as for a taking of the business. There is no finding as a fact that the Government took the business, or that what it did was intended as a taking. If the business was destroyed, the destruction was an unintended incident of the taking of land. There can be no recovery under the Tucker Act if the intention to take is lacking. Tempel n. United States, 248 U. S. 121. Moreover, the Act did not confer authority to* take a business. In the absence of authority, even an intentional taking cannot support an action for compensation under the Tucker Act. United States v. North American Co.. 253 U. S. 330. By including in the appropriation clause the words “ losses to persons, firms, and corporations, resulting from the procurement of the land for this purpose,” Congress doubtless authorized the Secretary of War to take into consideration losses due to the destruction of the business, where he pùrchased land upon agreement with the owners. But it does not follow that, in the absence of an agreement, the plaintiffs can compel payment for such losses. To recover, they must show some statutory right conferred. States have not infrequently directed the payment of compensation in similar situations. The constitutions of some require that compensation be made for con- 346 OCTOBER TERM, 1924. Syllabus. 267 U. S. sequential damages to private property resulting from public improvements. Chicago v. Taylor, 125 U. S. 161; Richards v. Washington Terminal Co., 233 U. S. 546, 554. Others have, in authorizing specific public improvements, conferred the right to such compensation.1 Ettor v. Tacoma, 228 U. S. 148; Joslin Manufacturing Co. v. Providence, 262 U. S. 668. Congress had, of course, the power to make like provision here. Compare United States v. Realty Co., 163 U. S. 427. But the mere reference in the appropriation clause to losses “ resulting from the procurement of the land for this purpose ” does not confer such a right. The settled policy of Congress, in authorizing the taking of land and appurtenances, has been to limit the right to compensation to interests in the land taken. The only act called to our attention in which was conferred a right to compensation for injury to property other than an interest in the land taken is the statute involved in United States v. Alexander, 148 U. S. 186, which was passed more than forty years ago, and in which the injury provided for was a direct result of the taking. We need not consider other objection^ to a recovery! Affirmed. ST. LOUIS, KENNETT & SOUTHEASTERN RAILROAD CO. v. UNITED STATES ET AL. APPEAL FROM THE COURT OF CLAIMS. No. 229. Argued January 23, 1925.—Decided March. 2, 1925. 1. A railroad company in a contract with the Director General of Railroads expressly accepted the covenants and obligations of the latter and the rights arising thereunder “ in full adjustment, settlement, satisfaction, and discharge of any and all claims and rights 1See, for example, Earle v. Commonwealth, 180 Mass. 579; Allen v. Commonwealth, 188 Mass. 59; Mass. Acts and Resolves, 1895, c. 488, § 14; 1896, c. 450; 1898, c. 551; Matter of Board of Water Supply, 211 N. Y. 174. ST. LOUIS, ETC., RAILROAD v. U. S. 347 346 Opinion of the Court. at law or in equity, which it now has or hereafter can have against the United States, the President, the Director General or any agent or agency thereof by virtue of anything done or omitted, pursuant to the acts of Congress herein referred to,” viz., the Federal Control Act, the Act of Aug. 29, 1916, c. 418, 39 Stat. 645, and the Joint Resolutions of April 6 and December 7, 1917, 40 Stat. 1, 429. Held, that a claim of the railroad under § 3 of the Federal Control Act for a deficit in operating income, etc., previously incurred under federal control, was settled and released by the contract, and that allegations in the company’s petition denying this effect and intention were mere conclusions of law, not admitted by demurrer. P. 348. 2. Ordinarily, the defense of release, or accord and satisfaction, must be pleaded in bar; but where the fact appears either in the body of the petition or from an exhibit annexed, the defense may be availed of-on demurrer. P. 350. 3. The agreement was within the authority of the Director General. Id. 58 Ct. Clms. 339 affirmed. Appeal from a judgment of the Court of Claims dismissing the petition on demurrer. Mr. S. S. Ashbaugh, with whom Mr. G. B. Webster was on the brief, for appellant. Mr. Sidney F. Andrews and Mr. A. A. McLaughlin, with whom Mr. Solicitor General Beck was on the brief, for the United States. Mr. Justice Brandeis delivered the opinion of the Court. This is an appeal from a judgment of the Court of Claims which dismissed the petition on demurrer. The plaintiff owns a short-line railroad which it operated, but which is alleged to have been under federal control from January 1 to July 1, 1918. The suit was brought to recover, for that period, amounts representing the deficit in operating income, under maintenance of way and equipment charges, and the rental value of the property, 348 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. which are claimed under § 3 of the Federal Control Act, March 21, 1918, c. 25, 40 Stat. 451, 454. There was annexed to the petition as an exhibit the copy of a contract between the plaintiff and the Director General of Railroads, dated February 26, 1919. It deals, in the main, with the mutual relations of the parties for the period after July 1, 1918, but section 3 of the contract provides as follows: “.The Company . . . expressly accepts the covenants and obligations of the Director General in this agreement set out and the rights arising thereunder in full adjustment, settlement, satisfaction, and discharge of any and all claims and rights at law or in equity, which it now has or hereafter can have against the United States, the President, the Director General or any agent or agency thereof by virtue of anything done or omitted, pursuant to the acts of Congress herein referred to. 11 This is not intended to affect any claim said Company may have against the United States for carrying the mails or for other services rendered not pertaining to or based upon the Federal Control Act.” The acts of Congress referred to in the contract were the Federal Control Act, the Act of August 29, 1916, c. 418, 39 Stat. 619, 645, and the Joint Resolutions of April 6, 1917, and December 7, 1917, 40 Stat. 1, 429. The Government assigned as a ground of demurrer that the copy of the contract annexed to the petition showed that the claims sued on had been settled and that the United States had been released from any liability to the plaintiff. The petition alleges, among other things, 11 that section 3 thereof does not contain and was not intended to contain any receipt or acknowledgment of any consideration by or in favor of the plaintiff for the use of said railroad property during said six months from January 1 to July 1, 1918; ” that the section refers only to other provisions; ST. LOUIS, ETC., RAILROAD v. U. S. 349 346 Opinion of the Court. and that the “ plaintiff gained nothing by the execution of this contract, and by it no rights were lost.” The contention is that these allegations are admitted by the demurrer; and that for this and other reasons section 3 can not properly be construed to apply to claims of the character of those sought to be recovered, because these “ did not arise out of the contract or because of anything contained in it.” The allegations in the petition as to the meaning, application and effect of section 3, being conclusions of law, are not admitted by the demurrer. United States v. Ames, 99 U. S. 35, 45; Chicot County v. Sherwood, 148 U. S. 529, 536; Equitable Life Assurance Society v. Brown, 213 U. S. 25, 43. The legal effect of the instrument remains that which its language imports. Interstate Land Co. v. Maxwell Land Grant Co., 139 U. S. 569, 578. The contract here in question appears to have been carefully drawn. It is the standard form short-line or co-operative contract said to have been executed by more than a hundred railroads.1 The language employed in section 3 to embody the agreement for settlement and release of claims is so clear and comprehensive as to leave on its face no room for construction. United States v. Wm. Cramp & Sons Co., 206 U. S. 118, 128. And we do not find in any other part of the contract any provision which prevents the application of the release clause to the claims here in suit. There is no contention that the contract as written does not express the actual agreement, nor a prayer that, because of mutual mistake, it should be reformed. The petition contains allegations which indicate that originally it was intended to challenge the validity of the contract because of duress, lack of consideration, and want of power in the Director General to enter into the same. 1 For the form of the cooperative contract, see United States Railroad Administration, Director General of Railroads, Bulletin No. 4 (revised), 1919, p. 80; Report of the Director General, 1924, pp. 36-38. 350 OCTOBER TERM, 1924. Syllabus. 267 U. S. But the plaintiff’s brief declares that the sole question before the Court is whether section 3 of the contract is a settlement or waiver of the claim in suit. And more specifically: “ It is not alleged nor now claimed that the contract was wholly and absolutely void because of total lack of consideration, or because the same was executed under forceable and legal duress.” Any claim based on a lack of authority in the Director General is clearly unfounded. There is in the brief a suggestion that the lower court erred in giving effect to section 3 because “ the contract was set out as an exhibit to the petition not as a part thereof, but merely for the purpose of showing to the court that the cause of action set out in the petition . . . [was] entirely independent of and arose outside of the contract itself.” The suggestion is unsubstantial. Ordinarily the defense of release or accord and satisfaction must be pleaded in bar. But where the fact appears either in the body of the petition, or from an exhibit annexed, the defense may be availed of on demurrer. Compare Randall v. Howard, 2 Black, 585, 589; McClure v. Township of Oxford, 94 U. S.. 429, 433; Speidel v. Henrid, 120 U. S. 377, 387. Affirmed. CAIRO, TRUMAN & SOUTHERN RAILROAD COMPANY v. UNITED STATES ET AL. APPEAL FROM THE COURT OF CLAIMS. No. 230. Argued January 23, 1925.—Decided March 2, 1925. 1. An agreement between a railroad company and the Director General of Railroads for settlement and release of claims like the agreement in St. Louis, etc. R. R. Co. v. United States, ante, 346, considered and held within the authority of the Director General; and binding on the railroad, even if without consideration, it being under seal, and operative on the claim in question. P. 351. 2. Allegations held not sufficient to charge duress. P. 352. 58 Ct. Clms. 336 affirmed. CAIRO, ETC. RAILROAD v. UNITED STATES. 351 350 Opinion of the Court. Appeal from a judgment of the Court of Claims dismissing the petition on demurrer. Mr. S. S. Ashbaugh, with whom Mr. G. B. Webster was on the brief, for appellant. Mr. A. A. McLaughlin, with whom Mr. Solicitor General Beck and Mr. Sidney F. Andrews were on the brief, for the United States. Mr. Justice Brandeis delivered the opinion of the Court. This is an appeal from the judgment of the Court of Claims which dismissed the petition on demurrer. Plaintiff’s claim is in character the same as that sued on in St. Louis, Kennett A* Southeastern R. R. Co. v. United States, decided this day, ante, p. 346. It is presented in the same manner; and the Government makes the same defense. The provision for settlement and release of claims here relied upon is substantially the same as in that case. But, in other respects, the contract is entirely different. It is in the form, known as the per diem contract, which contains no operative provision other than that providing for settlement and release of claims. The rest of the document consists of recitals and the testimonium clause. The consideration for the settlement and release is therein stated to be “ obtaining the advantages of the two days’ free time or reclaim allowance and such other co-operation as is accorded to it by the Director General of Railroads.” The petition alleges that the Director General gave no more than he would have been obliged by law to give had no agreement been made. This is not true. But it is, in any event, without legal significance. The plaintiff’s agreement embodying the release was under seal. Hence, it is binding even if without a consideration. The petition alleges, also, that the agreement 11 was accepted by the 352 OCTOBER TERM, 1924. Syllabus. 267 U. S. officers of the plaintiff for the purpose of saving for themselves such rights, privileges, and conveniences as were indicated by the Director General, and was signed for this purpose only and not otherwise, and for the supposed concessions set out in the contract itself.” The allegation does not charge facts constituting legal duress; United States v. Child & Co., 12 Wall. 232, 244. Nor is it claimed that the agreement is void because of duress. As in the St. Louis Company case, the Director General clearly had authority to enter into the agreement in question. Affirmed. GRAYSON ET AL. v. HARRIS ET AL. ERROR AND CERTIORARI TO THE SUPREME COURT OF THE STATE OF OKLAHOMA. No. 187. Argued January 16, 1925.—Decided March 2, 1925. 1. Judgment held reviewable by certiorari and not by writ of error. P. 353. 2. Paragraph 6 of the Supplemental Creek Agreement, confirmed by Act of June 30, 1902, c. 1323, 32 Stat. 500, declares that descent and distribution of land and money provided by Act of March 1, 1901, c. 676, 31 Stat. 861, shall be in accordance with c. 49 of Mansfield’s Digest of the Statutes of Arkansas, in force in the Indian Territory, but contains provisos, (a) that only citizens of the Creek Nation and their Creek descendants shall inherit lands of the Creek Nation, but (6) that, if there be no person of Creek citizenship to take descent, then the inheritance shall go to non-citizen heirs in the order named in said chapter 49. Held, That the preferred right of Creek citizens to inherit Creek allotted lands applies not only to inheritance immediately from the original allottee but also in subsequent stages of devolution, so that where an allotment made originally in the names of deceased Creek freedmen was inherited from them by an heir who was a Creek citizen, upon her death it descended to her more remote kindred, who were Creek citizens, in preference to her next of kin who was neither a Creek citizen nor a descendant of a Creek citizen. P. 355. GRAYSON v. HARRIS. 353 352 Opinion of the Court. 3. Where the state court decided as a pure matter of fact that plaintiffs were Creek citizens, but by error of law denied them their resultant federal right to preference in inheritance of Creek lands, held, that the finding of fact was not so related to the denial of federal right as to be reexaminable in this Court. P. 357. 4. The rule that, when the decision of a state court may rest upon a non-federal ground adequate to support it, this Court will not take jurisdiction to determine the federal question, has no application where the non-federal ground might have been considered by the state court, but was not. P. 358. 90 Okla. 147 reversed. Error and certiorari to a decree of the Supreme Court of Oklahoma which reversed a decree in favor of Grayson et al. in their suit to recover an interest in a Creek Indian allotment and for an accounting for oil and gas extracted from it. Mr. Robert M. Rainey, with whom Messrs. Streeter B. Flynn, William Neff, Lewis E. Neff, Jess W. Watts and Charles G. Watts, were on the briefs for petitioners. Mr. Robert F. Blair, for respondents. Mr. Justice Sutherland delivered the opinion of the Court. This is a suit brought in a state court of Oklahoma to determine title to an undivided half interest in certain lands in that state lying within the former Creek Nation. The case is here both on error and certiorari. 263 U. S. 696. The latter is the appropriate remedy, and the writ of error will be dismissed. Defendants in error claim title through one Gloria Grayson, and it is admitted that they acquired by mesne conveyances, and have, whatever title she had. The lands were originally allotted in the names of two freedmen, citizens of the Creek Nation, who had died prior to the allotment, leaving Gertrude Grayson and another as 42684 °—25----------23 354 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. their only Creek heirs at law; and ownership of an undivided half interest in the lands passed to each of them. Gertrude Grayson died intestate and without issue in 1907, leaving as her next of kin her maternal grandmother, Cloria Grayson, who was not a Creek citizen nor a descendant of a Creek citizen, and these plaintiffs in error, remote kindred in various degrees, all of whom were Creek citizens. This was prior to the admission of Indian Territory and the Territory of Oklahoma as the State of Oklahoma, and by the Act of May 2, 1890, c. 182, 26 Stat. 81, 95, § 31, the general law in force in Indian Territory in respect of descents and distributions was chapter 49 of Mansfield’s Digest of the Statutes of Arkansas. If this law applies, it is conceded that Cloria Grayson succeeded to the half interest of Gertrude Grayson as her sole heir at law ; in which event title of defendants in error is good and plaintiffs in error have no case. The contention on behalf of plaintiffs in error, however, is that the rights of the parties are controlled by the provisos found in paragraph 6 of the supplemental Creek agreement, ratified and confirmed by the Act of June 30, 1902, c. 1323, 32 Stat. 500, 501, as follows: “ 6. The provisions of the act of Congress approved March 1, 1901 (31 Stat. L., 861), in so far as they provide for descent and distribution according to the laws of the Creek Nation, are hereby repealed and the descent and distribution of land and money provided for by said act shall be in accordance with chapter 49 of Mansfield’s Digest of the Statutes of Arkansas now in force in Indian Territory: Provided, That only citizens of the Creek Nation, male and female, and their Creek descendants shall inherit lands of the Creek Nation: And provided further, That if there be no person of Creek citizenship to take the descent and distribution of said estate, then the inheritance shall go to noncitizen heirs in the order named in said chapter 49.” GRAYSON v. HARRIS. 355 352 Opinion of the Court. In addition to claim of title, defendants in error denied that plaintiffs in error were Creek citizens and alleged in bar adverse possession of the lands for the applicable statutory period. The trial court found for plaintiffs in error on all issues and rendered a decree in their favor. Upon appeal the state supreme court reversed the decree upon the assumption that the provisos in paragraph 6 related only to the devolution of the allotment from the allottee—that is, the first succession—and that, since Gertrude Grayson was not the allottee but inherited her half interest by operation of law, the provisos had no application. 90 Okla. 147. The effect of this ruling was to read into the provisos a limitation which plainly is not there, apparently induced by the belief that a literal interpretation would lead to absurd and unwise results. The conclusion is not in accord with the prior views of this court, to which the state supreme court gave no consideration. In Washington v. Miller, 235 U. S. 422, it was held that the proviso, that only citizens of the Creek Nation and their Creek descendants should 11 inherit lands of the Creek Nation,” looked to the future as well as to the present. The theory had been advanced that lands which had passed into private ownership were no longer lands of the tribe (that is to say, no longer “ lands of the Creek Nation ”) and, therefore, not within the words of the proviso. Answering that theory this court said (p. 427): “We think the words indicated were merely descriptive of the body of lands which were being allotted in severalty and subjected to the incidents of individual ownership, that is, the lands in the Creek Nation. In that sense they would include the lands as well after allotment as before. The section as a whole shows that it looked to the*future no less than to the present, and was intended to prescribe rules of descent applicable to all Creek allotments. Nothing in the provisos indicates that they were to be less comprehensive. Their purpose was to 356 OCTOBER TERM, 1924. Opinion of the Court. 267 IT. S. give Creek citizens and their Creek descendants a preferred right to inherit, and no reason is perceived for giving such a preference where a citizen entitled to an allotment died before receiving it that would not be equally applicable if he had died after it was received.” In the present case stress is laid by defendants in error upon the use of the word “ allotments ” in the phrase “ to prescribe rules of descent applicable to all Creek allotments,” and it is insisted that the court meant thereby to limit the operation of the proviso to lands in their descent from the allottee and not thereafter. The word was not used in that restricted sense, but in the broader sense which includes all Creek lands which had gone through the process of allotment. The purpose and policy of the provisos rest upon tribal rather than family sentiment, a sentiment which put the interests of the tribe above those of the family, and regarded the claims which spring from tribal membership rather than those arising from close degrees of kinship. This view is expressed in the later case of Campbell v. Wadsworth, 248 U. S. 169, 175, dealing with the Seminole agreement of 1899. Under the provision in that agreement, that if any member of the tribe die after enrollment the lands, etc., to which he would be entitled if living “ shall descend to his heirs who are Seminole citizens,” it was held that the lands of an Indian, enrolled as a Seminole, did not descend to his wife and daughters, enrolled only as Creeks. Answering the position of the state supreme court that only 11 the most powerful and impelling reasons ” could induce it to hold that the Indians intended to- exclude their own children from sharing in their property after death, this court said: “ While it is true that it seems unnatural for the Indians to have preferred more distant relatives to their own children in providing for the descent and distribution of their property, yet from the terms of the act before us, and also 352 GRAYSON v. HARRIS. Opinion of the Court. 357 from the provisions of the Supplemental Creek Agreement that 1 only citizens of the Creek Nation, male and female, and their Creek1 descendants shall inherit lands of the Creek Nation ’ (32 Stat. 500), it is clear that with the Indians the interests of the tribe were paramount to those of the family and it was with a knowledge of the mode of life of their primitive people, better and more intimate than the courts can now command, that they determined that this paramount purpose would best be served by giving to children born of mixed marriages the tribal status of their mother.” The lands of the Creek Nation were tribal lands and the evident purpose of the Indians was to continue at least a semblance of that status so far as it could be done consistently with their distribution in severalty. With the wisdom of that purpose we have nothing to do. It is enough that Congress respected it and gave to it the sanction of law. On behalf of defendants in error, it is asserted: (1) that there was an entire absence of proof that plaintiffs in error are citizens of the Creek Nation, and we are asked to review the record in that respect in order to determine whether there was any basis for the claim of federal right; and (2) that an examination of the record will show that the plea of the statute of limitations was fully established and, therefore, the decision of the state supreme court reasonably may be affirmed on that non-federal ground. The point that the evidence fails to show that plaintiffs in error were Creek citizens presents a pure question of fact. The trial court found they were. The state supreme court expressly affirmed the finding, and, recognizing the existence of the federal question in the case, put its decision denying the federal right upon an erroneous view of the law. The denial was not the result of the finding of fact, nor is that finding so intermingled with the conclusion of law in respect of the federal right as to cause 358 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. it to be necessary to consider the matter of fact in order to pass upon the federal question. See Aetna Life Ins. Co. et al. v. Dunken, 266 U. S. 389; Truax n. Corrigan, 257 U. S. 312,324—325, and cases cited; Nor. Pac. Ry. v. North Dakota, 236 U. S. 585,593; Creswill v. Knights of Pythias, 225 U. S. 246, 261; Kansas City So. Ry. v. Albers Comm. Co., 223 U. S. 573, 591. The effect of the finding was to establish the existence of a preliminary fact, related to the federal right only in the sense that it brought the case within the reach of the federal law relied on and called for a determination of the federal question then presented. In other words, the finding simply established a condition, not as a basis upon which to rest a decision of-the question of federal right one way or the other, but upon which that question became an issue for consideration and determination. In such case, the ordinary rule applies that the decision of the state court upon a question of fact can not be made the subject of inquiry here. Telluride Power Co. v. Rio Grande, etc. Ry., 175 U. S. 639, 645; Illinois v. Economy Power Co., 234 U. S. 497, 523-524; Dower v. Richards, 151 U. S. 658, 668, et seq.; Crary v. Devlin, 154 U. S. 619; Egan v. Hart, 165 U. S. 188, 192; Carpenter n. Williams, 9 Wall. 785, 786. Nor need we inquire into the defense of the statute of limitations. The decision now under review entirely ignores it. The rule that, when the decision of a state court may rest upon a non-federal ground adequate to support it, this court will not take jurisdiction to determine the federal question, has no application where, as here, the non-federal ground might have been considered by the state court but was not. Rogers N. Hennepin County, 240 U. S. 184, 188-189; Henderson Bridge Co. v. Henderson City, 173 U. S. 592, 608. It is said that in an earlier opinion the state supreme court ruled in favor of defendants in error upon the two points last discussed. But that opinion, it appears, was OHIO UTILITIES CO. v. COMMISSION. 359 352 Statement of the Case. withdrawn and the present decision, rendered after a rehearing, is the only one open to our consideration. The decree of the state supreme court is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Writ of error dismissed. Decree reversed. OHIO UTILITIES COMPANY v. PUBLIC UTILITIES COMMISSION OF OHIO. ERROR TO THE SUPREME COURT OF THE STATE OF OHIO. No. 210. Argued January 20, 21, 1925.—Decided March 2, 1925. 1. In determining the reproduction value of the plant of a public utility as a basis for fixing its rates, there should be a reasonable allowance for organization and other overhead charges that necessarily would be incurred in reproducing it; and the amount of such allowance is a matter of estimate not dependent on proof of actual expenditures originally made to defray such charges. P. 362. 2. An order of a state commission, affirmed by the state supreme court, fixed rates for an electric company allowing a return of less than 5% upon the value of its property, this result being reached by arbitrarily refusing any allowance for preliminary organization expenses, and by arbitrarily reducing allowances for interest during the construction period, working capital, value of buildings and plant equipment, and operating expenses, below the amounts established as reasonable by the undisputed evidence before the commission, Held that the return was so inadequate as to result in depriving the company of property without due process of law; and that the company was not accorded the sort of judicial inquiry to which under the decisions of this Court it was entitled. P. 361. 108 Ohio St. 143, reversed. Error to a judgment of the Supreme Court of Ohio which affirmed an order of the Ohio Public Utilities Commission reducing the rates chargeable by the plaintiff in error for electricity. 360 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. Mr. Timothy S. Hogan and Mr. J. C. Martin, for plaintiff in error. Mr. John W. Bricker and Mr. Burch D. Huggins, with whom Mr. C. C. Crabbe, Attorney General of Ohio, and Mr. Granville Barrere were on the brief, for defendant in error. Mr. Justice Sutherland delivered the opinion of the Court. The Ohio Utilities Company is engaged in supplying gas and electricity for light, heat and power to various communities in Ohio. In 1920 it filed with the Utilities Commission rate schedules for gas and electrical service in the Village of Hillsboro. The rates were protested and the commission ordered a hearing. Pending a decision, the company was allowed to collect the rates in accordance with its schedule upon condition that it would return to its customers any excess over the rates finally fixed, for the due performance of which it furnished a bond. After a hearing and rehearing, the commission reduced the electrical service rates set forth in the company’s schedule, and fixed the same for residence and commercial lighting at twelve cents per kilowatt hour for the first two hundred hours per month and ten cents per kilowatt hour for all over two hundred hours, and for private garage automobile charging a minimum of one dollar per month net. As a basis for these rates, the commission found that the fair value of the physical property of the company used and useful in the furnishing of electrical service to consumers in Hillsboro was $138,521; to which allowances were added as follows: taxes during construction, $1,081; interest during construction, $1,500; to maintain an adequate stock of materials and supplies, $1,071; working capital for carrying on the electrical service in Hillsboro, $2,882;—bringing the value of the property, as of August 30, 1920, for rate making purposes, to the total sum of OHIO UTILITIES CO. v. COMMISSION. 361 359 Opinion of the Court. $145,055. The commission further found that the reasonable operating expenses (including an allowance of $3,000 for taxes) in furnishing such electrical service for a period of one year should be $37,608, and a reasonable annual allowance for depreciation should be $7,252, (being five per centum of the value) making a total of $44,860. The commission then found that a reasonable return to the company for the period of one year would be $8,703, and estimated that the rates fixed would produce the aggregate of these two sums, namely, $53,563. Upon error to the state supreme court the order of the commission was affirmed. 108 Ohio State 143. The order of the commission is assailed as confiscatory and, therefore, in contravention of the Fourteenth Amendment. The specific grounds of complaint in respect of the order, so far as necessary to be stated and considered, are as follows: (1) the value of the property should have been fixed at $154,655.93; (2) under the evidence, the allowance for operating expenses, including taxes, should have been at least $38,744.85; (3) the return to the company should have been on the basis of eight per cent, upon the value stated in (1), or $12,372 annually. Property valuation. An examination of the record shows that the engineers of the commission made an itemized inventory and valuation of the company’s property, based on reproduction value less depreciation, from which it appears that the aggregate fair value of the property for rate-making purposes was $154,655.93. This valuation was confirmed by the oral testimony of the engineers; it was acquiesced in by the company; and we find no substantial evidence in the record to the contrary. The commission accepted the valuation of its engineers in all respects except that it rejected or reduced the amount of the following items: preliminary organization expenses, $5,000, rejected outright; interest for one year’s construction period, reduced from $4,507.98, as estimated and 362 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. recommended, to $1,500, a reduction of $3,007.98; working capital, being one-twelfth of the annual operating expenses and cost of coal for one month, reduced from $4,198.42 to $2,882, a reduction of $1,316.42. It also appears that the engineers’ valuation of the buildings and plant equipment, $122,276.15, was carried into the commissioner’s computation at the round sum of $122,000. The aggregate, therefore, of the rejections and reductions is $9,600.55. The item of $5,000 seems to have been rejected upon the ground that there was no proof of actual expenditure. Reproduction value, however, is not a matter of outlay, but of estimate, and should include a reasonable allowance for organization and other overhead charges that necessarily would be incurred in reproducing the utility. In estimating what reasonably would be required for such purposes, proof of actual expenditures originally made, while it would be helpful, is not indispensable. The commission’s chief engineer, explaining the appearance of the item in his report, called attention to the account system prescribed by the commission, which, among other things, provided that under the head of “ organization ” was included incorporation fees paid to the government and other fees and expenses incident to organizing the utility and placing it in readiness to do business, attorney’s fees, cost of preparing and issuing certificates of stock, etc., etc., and testified that the item was an estimate made as the result of an investigation by the commission’s engineer on the spot. There was no testimony to the contrary; and the company, in view of the concession, evidently deemed it unnecessary to produce evidence upon the point. That such expenditures in a substantial amount would necessarily be made in reproducing the utility is clear; it is not suggested that the estimate of the engineers is excessive or unfairly made; and the rejection of the entire amount cannot be regarded as otherwise than arbitrary. OHIO UTILITIES CO. v. COMMISSION. 363 359 Opinion of the Court. The reduction of the item for interest seems to be of like character. The engineers’ estimate was based upon their conclusion that it would require one year for the construction of the plant; and interest at six per cent, was allowed on the estimated cost for half of that period. There is no justification in the record, so far as we can see, for a reduction of the item to an amount which is less than one-third of the engineers’ estimate. The item for working capital was carefully worked out by the commission’s own engineers; there was no evidence to the contrary; and the reduction seems to have been equally capricious. The curtailment of the estimated value of the buildings and plant equipment by the sum of $276.15 finds no explanation in the record, and probably was a sacrifice to the easy convenience of round numbers. Operating expenses. The commission’s engineers reported and testified that the actual operating expenses for the year ending February 28, 1921, were $38,744.85,—to which should be added the amount of a reasonable depreciation allowance, fixed by the commission itself at $7,252. We are unable to find any evidence in the record which impeaches the accuracy of the sum of these expenses, or which casts doubt upon their fairness as a measure of the necessary annual operating expenses. Yet the commission reduced the amount to $37,608, a difference of $1,136.85. The commission found, it is true, that the plant had been inefficiently operated. But we find no evidence to this effect in the record and none has been called to our attention. To the contrary, the commission’s engineer who examined the property and accounts of the company testified that he considered the expenditures of the company were reasonable and that the plant was efficiently and economically managed. Return. As bearing upon the amount of return to which the company is entitled, a summary of the fore- 364 OCTOBER TERM, 1924. Syllabus. 267 U. S. going may now be considered: value of property for rate-making purposes, $154,655.93; annual amount of income based upon rates fixed by commission, $53,563; operating expenses, together with amount of annual depreciation allowed by commission, $45,996.85; leaving a balance as return to the company of $7,566.15, or less than five per cent, upon the value of the property. That this is so plainly inadequate as to result in depriving the company of its property without due process of law may not be doubted. See Bluefield Co. v. Pub. Serv. Comm., 262 U. S. 679, 692-695, and cases cited; 5. W. Tel. Co. v. Pub. Serv. Comm., 262 U. S. 276, 288. From the foregoing, it is evident that the state supreme court did not accord to the plaintiff in error that sort of judicial inquiry to which under the decisions of this court it was entitled. Bluefield Co. v. Pub. Serv. Comm., supra, p. 689; Ohio Valley Co. v. Ben Avon Borough, 253 U. S. 287, 289. Judgment reversed and cause remanded for further action not inconsistent with this opinion. LYNCH, EXECUTRIX, ETC. v. ALWORTH-STEPHENS COMPANY. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 273. Argued January 7, 8, 1925.—Decided March 2, 1925. 1. The interest of a corporate lessee of a mine under a lease for a term of years obliging it to mine a minimum tonnage of ore annu^ ally and to pay the lessor, owner of the fee, a stated royalty per ton mined, is property within the meaning of § 12a of the Income Tax Law of September 8, 1916, which provides that the net income of corporations organized in the United States shall be ascertained by deducting from gross income, among other things, “ a reasonable allowance for the exhaustion ... of property arising out of its use,” and specifically, in the case of mines, “ a reasonable allowance LYNCH v. ALWORTH-STEPHENS CO. 365 364 Opinion of the Court. for depletion thereof not to exceed the market value in the mine of the product thereof which has been mined and sold during the year,” etc. United States v. Biwabik Mining Co., 247 U. S. 116; Von Baumbach v. Sargent Land Co., 242 U. S. 503, distinguished. P. 368. 2. As the mining goes on, the property interest of the lessee in the mine, and that of the owner, are lessened, and in both cases the extent of this exhaustion, with the consequent deduction to be made under the above statute, is arrived at by determining the aggregate amount of the depletion of the mine, based upon the market value of the product, and allocating that amount in proportion to the interests of owner and lessee, severally considered. P. 370. 294 Fed. 190, affirmed. Certiorari to a judgment of the Circuit Court of Appeals which affirmed a judgment of the District Court (278 Fed. 959) for the present respondent in its action to recover back from an internal revenue collector the amount of an income tax, paid under protest. Upon the death of the defendant, his executrix was substituted. Mr. Solicitor General Beck and Mr. Merrill E. Otis, Special Assistant to the Attorney General, for petitioner. Mr. W. D. Bailey and Mr. Horace Andrews, with whom Messrs. J. L. Washbum, Oscar Mitchell and William P. Belden were on the briefs, for respondent. Mr. Justice Sutherland delivered the opinion of the Court. The federal income tax return made by respondent (a corporation organized in the United States) for the year 1917 showed the sum of $10,253.21 due the government for income and excess war profits taxes for that year; and this amount was paid. Thereafter, the Commissioner of Internal Revenue assessed respondent with an additional tax of $17,128.44, which respondent was forced to pay and did pay under protest, and to recover which this 366 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. action was brought against E. J. Lynch, a collector of internal revenue, to whom the payment had been made. Lynch subsequently died and his executrix was substituted as defendant. The federal district court for the district of Minnesota, where the action was brought, rendered judgment in favor of respondent for the amount. 278 Fed. 959. The circuit court of appeals affirmed the judgment, 294 Fed. 190; and the case is here upon certiorari. 264U. S. 577. The facts from which the controversy arose, are not in dispute, and, for present purposes, may be shortly stated. Prior to March 1, 1913, respondent had leases upon two definitely described tracts of land in Minnesota containing deposits of iron ore, known as the Perkins mine and the Hudson mine. The leases, unless sooner terminated by the lessee in the manner therein provided, ran for a period of fifty years and obliged respondent to mine and remove at least fifty thousand tons of iron ore annually from the Perkins and twenty-five thousand tons annually from the Hudson and to pay the lessor, owner of the fee, a royalty of thirty cents per ton upon each ton of ore extracted. Respondent subleased the lands upon terms not necessary to be stated further than that the sublessee of the Perkins was to pay respondent a royalty of seventy-five cents per ton and the sublessee of the Hudson a royalty of sixty cents per ton, or forty-five cents and thirty cents, respectively, per ton more than was made payable by respondent to the lessor owner. Before March 1,1913, both tracts of land had been fully explored and the deposits of ore therein developed to such an extent that the entire amount of tonnage was known with substantial accuracy, and the properties were demonstrated to be of great value. On that date it was known that these ore bodies would be entirely worked out and the mines exhausted within seven years; and this in fact happened. The market value of the ore in the mines LYNCH v. ALWORTH-STEPHENS CO. 367 364 Opinion of the Court. during that entire time exceeded seventy-five cents per ton; and it sufficiently appears that during such time respondent and its sublessees were in possession of the lands engaged in mining and removing the ore therefrom. Without repeating the formula followed in arriving at the result, it is enough to say that the trial court found that, under the leases, the respondent had a property interest in these ore bodies, the fair market value of which, as of March 1, 1913, was 71.9 per cent, of the total royalties which would be received under the subleases, and such royalties constituted the sole source of respondent’s income. Thereupon, the lower courts held that respondent was entitled to deduct from its gross income for 1917 a sum equal to 71.9 per cent, thereof for depletion, and that only the balance remaining was subject to income and excess profits taxes. Such taxes, properly computed, amounted to the sum returned and originally paid by respondent and no more. The applicable law is found in §§ 2, 10 and 12 (a) of the Act of September 8, 1916, c. 463, 39 Stat. 756, 757-758, 765, 767. Section 10 imposes a tax of two per centum upon the total annual net income received from all sources by every corporation, etc., organized in the United States. Section 12 (a)1 provides that such net 1Sec. 12. (a). In the case of a corporation, joint-stock company or association, or insurance company, organized in the United States, such net income shall be ascertained by deducting from the gross amount of its income received within the year from all sources— Second. All losses actually sustained and charged off within the year and not compensated by insurance or otherwise, including a reasonable allowance for the exhaustion, wear and tear of property arising out of its use or employment in the business or trade; (a) in the case of oil and gas wells a reasonable allowance for actual reduction in flow and production to be ascertained not by the flush flow, but by the settled production or regular flow; (b) in the case of mines a reasonable allowance for depletion thereof not to exceed the market value in the mine of the product thereof which has been 368 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. income shall be ascertained by deducting from the gross amount of the income, among other things, “ a reasonable allowance for the exhaustion ... of property arising out of its use . . . ; (b) in the case of mines a reasonable allowance for depletion thereof not to exceed the market value in the mine of the product thereof which has been mined and sold during the year for which the return and computation are made, . . ” Section 2 contains the following provision (p. 758): “(c) For the purpose of ascertaining the gain derived from the sale or other disposition of property, real, personal, or mixed, acquired before March first, nineteen hundred and thirteen, the fair market price or value of such property as of March first, nineteen hundred and thirteen, shall be the basis for determining the amount of such gain derived.” Upon the foregoing facts and under these statutory provisions, the question presented for consideration is whether the relation of respondent to the mines which were the source of its income, was such that it was entitled to deduct from the gross amount of such income a reasonable amount for exhaustion or depletion. Upon the part of the petitioner the contention is that the leases do not convey to the lessee the ore bodies but are contracts of rental conferring only the right to use and occupy the premises and mine the ore, which, so long as it remains in the ground, is the property of the fee owner. It is, therefore, insisted that by the extraction of the ore, only the property of the fee owner is depleted and such owner alone is entitled to an allowance therefor. On the other mined and sold during the year for which the return and computation are made, such reasonable allowance to be made in the case of both (a) and (b) under rules and regulations to be prescribed by the Secretary of the Treasury: Provided, That when the allowance authorized in (a) and (b) shall equal the capital originally invested, or in case of purchase made prior to March first, nineteen hundred and thirteen, the fair market value as of that date, no further allowance shall be made; , , , LYNCH v. ALWORTH-STEPHENS CO. 369 364 Opinion of the Court. hand, respondent contends that under the leases the lessee, as well as the lessor, owns a valuable property interest in the mines and by the terms of the statute each is entitled to deduct from gross income a reasonable allowance for depletion, the lessee for exhaustion of the leasehold interest and the lessor for exhaustion of the fee interest as lessened by the interest of the lessee, such deduction to be allowed according to the value of the interest of each in the property, the entire allowance, however, not to exceed the total market value in the mine of the product thereof mined and sold during the taxable year. It is, of course, true that the leases here under review did not convey title to the unextracted ore deposits, United States v. Biwabik Mining Co., 247 U. S. 116, 123; but it is equally true that such leases, conferring upon the lessee the exclusive possession of the deposits and the valuable right of removing and reducing the ore to ownership, created a very real and substantial interest therein. See Hyatt v. Vincennes Bank, 113 U. S. 408, 416; Ewert v. Robinson, 289 Fed. 740, 746-750. And there can be no doubt that such an interest is property. Hamilton v. Rathbone, 175 U. S. 414, 421; Bryant v. Kennett, 113 U. S. 179, 192. The general provision in § 12 (a), Second, is that the deduction from gross income shall include a reasonable allowance for the “exhaustion ... of property.” There is nothing to suggest that the word “ property ” is used in any restricted sense. In the case of mines, a specific kind of property, the exhaustion is described as depletion, and is limited to an amount not exceeding the market value in the mine of the product mined and sold during the year. The interest of respondent under its leases in the mines being property, its right to deduct a reasonable allowance for exhaustion of such property, if there be any, during the taxable year results from the 42684°—25----------24 370 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. plain terms of the statute, such deduction, since the property is an interest in mines, to be limited to the amount of the exhaustion of respondent’s interest caused by the depletion of the mines during the taxable year. We agree with the circuit court of appeals, 294 Fed. 194, that, “The plain, clear and reasonable meaning of the statute seems to be that the reasonable allowance for depletion in case of a mine is to be made to every one whose property right and interest therein has been depleted by the extraction and disposition ‘of the product thereof which has been mined and sold during the year for which the return and computation are made.’ And the plain, obvious and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.” It is said that the depletion allowance applies to the physical exhaustion of the ore deposits, and since the title thereto is in the lessor, he alone is entitled to make the deduction. But the fallacy in the syllogism is plain. The deduction for depletion in the case of mines is a special application of the general rule of the statute allowing a deduction for exhaustion of property. While respondent does not own the ore deposits, its right to mine and remove the ore and reduce it to possession and ownership is property within the meaning of the general provision. Obviously, as the process goes on, this property interest of the lessee in the mines is lessened from year to year, as the owner’s property interest in the same mines is likewise lessened. There is an exhaustion of property in the one case as in the other; and the extent of it, with the consequent deduction to be made, in each case is to be arrived at in the same way, namely, by determining the aggregate amount of the depletion of the mines in which the several interests inhere, based upon the market LYNCH v. ALWORTH-STEPHENS CO. 371 364 Opinion of the Court. value of the product, and allocating that amount in proportion to the interest of each severally considered. We are referred to Weiss v. Mohawk Mining Co., 264 Fed. 502, where the circuit court of appeals for the sixth circuit reached an exactly opposite conclusion to that announced in the present case by the courts below. . The opinion in that case was apparently made to rest upon the decision of this court in United States v. Biwabik Mining Co., supra, which, in turn, followed Von Baumbach v. Sargent Land Co., 242 U. S. 503. These cases, however, arose under the corporation tax law of 1909, c. 6, 36 Stat. 11, 112, § 38, imposing a special excise tax with respect to the carrying on or doing business by a corporation, etc., measured by its net income, in the ascertainment of which, among other things, there was authorized a deduction of “ a reasonable allowance for depreciation of property.” The Sargent Land Co. case concerned the owner and lessor of mining property, while the Biwabik Mining Co. case concerned a lessee of mining property. It was held in both cases, as we hold here, that the leases under consideration did not convey title to the ore in place. Whether the lessees had property interests such as we have determined here, was not considered. Both decisions, expressly in one and implicitly in the other, turned, primarily, upon the scope of the word “depreciation.” In the Sargent Land Co. case this appears expressly from the following extract (pp. 524-525): “We do not think Congress intended to cover the necessary depreciation of a mine by exhaustion of the ores in determining the income to be assessed under the statute by including such exhaustion within the allowance made for depreciation. It would be a strained use of the term depreciation to say that, where ore is taken from a mine in the operation of the property, depreciation, as generally understood in business circles, follows. True, the value of the mine is lessened from the partial exhaustion of the property, and, 372 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. owing to its peculiar character, cannot be replaced. But in no accurate sense can such exhaustion of the body of the ore be deemed depreciation. It is equally true that there seems. to be a hardship in taxing such receipts as income, without some deduction arising from the fact that the mining property is being continually reduced by the removal of the minerals. But such consideration will not justify this court in attributing to depreciation a sense which we do not believe Congress intended to give to it in the Act of 1909.” And this view is immediately emphasized by putting in contrast with the “depreciation ” of the 1909 Act, the “ reasonable allowance for the exhaustion ... of property ” of the income tax provision of the Tariff Act of 1913 and the exhaustion and depletion provisions of the Act of 1916, heretofore quoted. “These provisions,” the court concluded (p. 525), “were not in the Act of 1909, and, as we have said, we think that Congress, in that act, used the term ‘ depreciation ’ in its ordinary and usual significance. We therefore reach the conclusion that no allowance can be made of the character contended for as an item of depreciation.” The decision in the later case of the Biwabik Mining Co., it is true, rests upon the predicate that the lessee was not a purchaser of the ore in place, but that was because the decision of the lower court—that the lease as applied to the situation there developed, was “ in every substantial way pro tanto a purchase ”—presented that question as the one to be met. The lower court thought that the case of the lessor (Sargent Land Co.) was to be distinguished from that of the lessee (Biwabik Mining Co.) upon the theory that, while the royalties paid to the former might properly be called income, the receipts of the latter resulted from- the sale of capital assets and were not income. But this court rejected the assumed distinction as unsound and decided the case upon that point without referring to the question of deduction on account BLUNDELL v. WALLACE. 373 364 Syllabus. of depreciation. Evidently, it was taken for granted in the lower court that under the decision in the Sargent Land Co. case, the latter point was no longer open; and it was passed there, as it was here, without comment. Considering the Sargent Land Co. and the Biwabik Mining Co. cases together, it is apparent that in respect of the matter of depreciation under the Act of 1909, in the opinion of this court, lessor and lessee stood upon the same footing, neither being entitled to an allowance; but it was plainly recognized that if the statutory allowance had been for exhaustion or depletion, as in the later acts, an entirely different question might have been presented as to both interests. We find nothing in either case out of harmony with the conclusion reached by the lower courts, in respect of the construction and application of the pertinent provisions of law which are now under review. Affirmed. Mr. Justice Butler took no part in the consideration or decision of this cause. BLUNDELL, EXECUTOR, ET AL. v. WALLACE. ERROR TO THE SUPREME COURT OF THE STATE OF OKLAHOMA. No. 276. Argued January 29, 1925.—Decided March 2, 1925. 1. Section 23 of the Act of April 26, 1906, disposing of the affairs of the Five Civilized Tribes, which provides: “ Every person of lawful age and sound mind may by last will and testament devise and bequeath all of his estate, real and personal, and all interest therein/' was intended (save the proviso limiting full-bloods) to enable the Indian to dispose of his estate by will on the same footing as any other citizen, notwithstanding restrictions previously imposed against alienation of allotments (e. g., by Choctaw-Chickasaw Supplemental Agreement, July 1, 1902, §§ 12 and 16), leaving the regulatory local law of wills free to operate as in the case of other persons and property. P. 375. 374 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. 2. Hence the will of a married half-blood Choctaw woman devising her homestead and surplus allotments is subject to the provision of the Oklahoma law (Rev. L. 1910, § 8341), forbidding any woman while married to “ bequeath more than two-thirds of her property away from her husband.” Id. 96 Okla. 26, affirmed. Error to a decree of the Supreme Court of Oklahoma which affirmed a decree in favor of the plaintiff, Wallace, in his suit to quiet title to an interest in certain Choctaw Indian allotments. Mr. Reford Bond, for plaintiffs in error, submitted. Mr. John B. Dudley, with whom Mr. W. L. Farmer and Mr. Cicero I. Murray were on the brief, for defendant in error. Mr. Justice Sutherland delivered the opinion of the Court. This is a suit to quiet title to a one-third interest in homestead and surplus lands originally allotted to Patsy Poff, a half-blood Choctaw Indian woman, under the Act of July 1, 1902, c. 1362, 32 Stat. 641. She died August 7, 1916, David H. Poff, her husband, surviving. By her will made in 1912, which was duly probated, she devised the entire allotment to Juanita and Oleta Blundell, her great granddaughters, bequeathing to her husband only a nominal sum. Defendant in error asserts title through mesne conveyances vesting in him the interest of David H. Poff. His suit is based on the provisions of § 8341, Rev. Laws Okla. 1910 (§ 11224 Comp. Stats. Okla. 1921), which reads: “ Every estate and interest in real or personal property to which heirs, husband, widow, or next of kin might succeed, may be disposed of by will: Provided, that no marriage contract in writing has been entered into between the parties; no man while married shall bequeath BLUNDELL v. WALLACE. 375 373 Opinion of the Court. more than two-thirds of his property away from his wife, nor shall any woman while married bequeath more than two-thirds of her property away from her husband; Provided, further, that no person who is prevented by law from alienating, conveying or encumbering real property while living shall be allowed to bequeath same by will.” Plaintiff in error contends that this statute as applied to Patsy Poff’s will is in direct conflict with § 23 of the Act of Congress of April 26, 1906, disposing of the affairs of the Five Civilized Tribes, c. 1876, 34 Stat. 137, 145, and, therefore, invalid. Section 23 is as follows: “ Every person of lawful age and sound mind may by last will and testament devise and bequeath all of his estate, real and personal, and all interest therein: Provided, That no will of a full-blood Indian devising real estate shall be valid, if such last will and testament disinherits the parent, wife, spouse, or children of such fullblood Indian, unless acknowledged before and approved by a judge of the United States court for the Indian Territory, or a United States commissioner.” There was an amendment in 1908 in a detail not important here. It was held below- that the state statute applied; that there was no conflict with the federal statute; that defendant in error was entitled to recover, and the decree went accordingly. 96 Okla. 26. A brief reference to the state of the law at the time of the passage of § 23 will help to clear the way for a correct determination of the question. By §§12 and 16 of the supplemental agreement with the Choctaws and Chicka-saws, ratified by the Act of July 1, 1902, supra, lands of the kind here involved were declared to be inalienable during specified periods of time. It is settled that this restriction against alienation extended to a disposition by will, Taylor v. Parker, 235 U. S. 42; and, but for § 23, it is plain that the devise in question, at least as to the homestead, would have been without effect. 376 OCTOBER TERM, 1924. Opinion of the Court. 267 U.S. But, it must be borne in mind, the restriction was in respect of the specified lands and did not affect the testamentary power of the Indians to dispose of their alienable property, which power, on the contrary, has been fully recognized, first, by an extension of the appropriate laws of Arkansas over the Indian Territory, and then, upon the admission of the State of Oklahoma, by the substitution therefor of Oklahoma law. Taylor v. Parker, supra; Jefferson v. Fink, 247 U. S. 288, 294. The general policy of Congress prior to the adoption of § 23, plainly had been to consider the local law of descents and wills applicable to the persons and estates of Indians except in so far as it was otherwise provided. Thus, by § 2 of the Act of April 28, 1904, c. 1824, 33 Stat. 573, the laws of Arkansas, theretofore put in force in the Indian Territory, were expressly “continued and extended in their operation, so as to embrace all persons and estates in said Territory, whether Indian, freedmen, or otherwise,” and jurisdiction was conferred upon the courts of the Territory in the settlement of the estates of decedents, .etc., whether Indian, freedmen, or otherwise. Section 23 must be read in the light of this policy; and, so reading it, we agree with the ruling of the state supreme court that Congress intended thereby to enable “ the Indian to dispose of his estate on the same footing as any other citizen, with the limitation contained in the proviso thereto.” The effect of § 23 was to remove a restriction theretofore existing upon the testamentary power of the Indians, leaving the regulatory local law free to operate as in the case of other persons and property. There is nothing in Blanset v. Cardin, 256 U. S. 319, cited to the contrary, which militates against this view. That case involved the will of a Quapaw woman devising her restricted lands away from her husband. It was held that § 8341 of the Oklahoma laws did not apply because it was in conflict with an act of Congress. But the act there NEWARK v. CENTRAL R. R. 377 373 Syllabus. considered was very different from the one now under review. There the authority to dispose of restricted property by will was limited by the provisions of the Act of February 14, 1913, c. 55, 37 Stat. 678, that the will must be “ in accordance with regulations to be prescribed by the Secretary of the Interior,” and that no will “ shall be valid or have any force or effect unless and until it shall have been approved ” by that officer. By this language the intent of Congress to exclude the local law and to establish the regulations of the Secretary as alone controlling was made evident; and it was so held. But here the federal statute contains no provision of like character ; it is without qualification except in the single particular set forth in the proviso; and, clearly, it does not stand in the way of the operation of the local law. __________________ Affirmed. CITY OF NEWARK, ET AL. v. CENTRAL RAILROAD COMPANY OF NEW JERSEY, ET AL. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 351. Argued November 21, 24, 1924.—Decided March 2, 1925. 1. New Jersey, by empowering a railroad company to have as many tracks within its specified right of way as it might deem necessary, and to erect suitable bridges to accommodate them, including draw bridges over navigable waters crossed, impliedly consented that, in the maintenance and improvement of the railroad, a draw bridge over Newark Bay, originally constructed with two tracks, might be replaced by a better one accommodating four tracks upon substantially the same location. Ls. N. J. 1860, c. 64. P. 381. 2. Both state and federal governments having consented to this replacement, it is unnecessary to decide whether the acts of Congress and approval of the plans by the Chief of Engineers and Secretary of War would be sufficient without the consent of the 378 OCTOBER TERM, 1924. Counsel for Parties. 267 U. S. State, or whether the legislation of Congress supersedes the laws of the State, respecting navigable waters wholly within New Jersey. P. 384. 3. The replacement in question was not within Ls. N. J. 1914, § 4, c. 123, as amended; requiring approval by the state Board of Commerce and Navigation of plans for water front development undertaken since the passage of that act. P. 385. 4. Nor, was approval necessary by the Port of New York Authority, a body corporate and politic created by compact between New Jersey and New York with the consent of Congress. P. 386. 5. The fact that the railroad’s bridge was not included in the comprehensive plan for the development of the Port of New York (embracing Newark Bay) adopted pursuant to the said compact, does not make it unlawful or deprive the company of power to construct it. Id. 297 Fed. 77; 287 id., 196, affirmed. Appeal from a decree of the Circuit Court of Appeals affirming a decree of the District Court which dismissed a bill brought by the City of Newark to enjoin the Railroad Company from constructing a bridge over Newark Bay. Jersey City and the State of New Jersey intervened as complainants. The Port of New York Authority, a body politic established by compact for the development of the Port of New York District, including Newark Bay, was made a defendant and answered, leaving its duties in the matter to the decision of the court. The bill was dismissed on motion of the Railroad, upon the ground that it did not state a cause of action. The two cities and the State appealed. Mr. George W. Wickersham, with whom Messrs. Jerome T. Congleton, Corporation Counsel of the City of Newark; Edward L. Katzenbach, Attorney General of the State of New Jersey; Thomas J. Brogan, Corporation Counsel of the City of Jersey City, and Paxton Blair, were on the briefs, for appellants. Mr. Richard V. Lindabury, with whom Mr. Charles E. Miller was on the brief, for the Central Railroad Company of New Jersey. NEWARK v. CENTRAL R. R. 379 377 Opinion of the Court. Mr. Julius Henry Cohen, for the Port of New York Authority. Mr. Justice Butler delivered the opinion of the Court. This suit was brought by the City of Newark to enjoin the construction of a bridge across Newark Bay. Jersey City and the State of New Jersey by leave of court intervened as parties complainant. Under the authority of c. 64, Laws of New Jersey, 1860, the defendant company constructed and has since maintained and used a double-track wooden railroad bridge, with bascule draws, across Newark Bay. It is below Newark, between Elizabeth and Bayonne, and crosses the channel at an angle of about 66 degrees. Newark Bay is a navigable estuary, and its waters at this place are wholly within the State of New Jersey. The company proposes, and has commenced, to construct upon substantially the same location a substitute bridge of masonry and steel with four tracks and vertical draws. It claims that the acts of Congress of August 8, 1919, c. 42, 41 Stat. 277, and February 15, 1921, c. 47, 41 Stat. 1099, and the Bridge Act of March 23, 1906, c. 1130, 34 Stat. 84, with the approval of its plans by the Chief of Engineers and Secretary of War, confer authority to construct the bridge in question without the consent of the State. But the company also insists that, if the authority of the State is necessary, it was granted by the act of 1860. Appellants maintain that the source of power to construct a bridge over navigable waters wholly within one State is in the State itself; that the concurrent consent of both state and federal governments is necessary before such a bridge lawfully may be erected; that the authority granted by the act of 1860 does not extend to the new bridge, and that under laws of New Jersey (c. 123, Laws of 1914, and c. 242, Laws of 1915) the approval of the 380 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. substitute bridge by the state Board of Commerce and Navigation is necessary. The complaint alleges that the City of Newark owns real estate above the bridge on the westerly shore of the bay, and has expended large sums for improvements thereon, consisting of warehouses, slips, docks and other facilities of commerce, known collectively as Port Newark Terminal; that neither the present nor the proposed bridge is necessary to the operation of the railroad; that, because of the threatened construction of the proposed bridge, complainant has been unable to secure tenants for the terminal property; and that, if any bridge shall be constructed between Elizabeth and Bayonne, the free and unobstructed access of vessels to the Newark Terminal will be prevented and the value of the terminal . destroyed. The complaint shows that the defendant the Port of New York Authority is a body corporate and politic, established by a compact between New Jersey and New York for the creation of the Port of New York District, and for the comprehensive development of that port. Congress gave its consent to the agreement. C. 151, Laws of New Jersey, 1921; c. 154, Laws of New York, 1921; c. 77, 42 Stat. 174. The district extends as far north as Irvington on the Hudson, New York, as far east as Long Beach, Long Island, as far south as Atlantic Highlands, and as far west as Summit, New Jersey, and so includes Newark Bay and the site of the bridge. See opinion of District Court in this case, 287 Fed. 196, 201. Pursuant to the compact, a comprehensive plan for the development of the Port of New York was approved by both States and consented to by Congress. C. 9, Laws of New Jersey, 1922; c. 43, Laws of New York, 1922; c. 277, 42 Stat. 822. Appellants insist that Congress, by creating and adopting as its instrumentality the Port Authority, qualified the license granted by the United States to the company by imposing as an additional requirement the approval of that body. 377 NEWARK v. CENTRAL R. R. Opinion of the Court. 381 The petition of intervention of Jersey City adopts the allegations of the complaint and shows that within its territorial limits it has much shore land on Newark Bay and the Hackensack River, which is a continuation of the bay, and that it owns lands on these waterfronts, on which it has expended large sums for the construction of wharves and other improvements. The petition states that the construction of the proposed bridge will cause that city irreparable injury. The petition of intervention of the State of New Jersey calls attention to the provisions of the acts of 1914 and 1915, and alleges that the company has not obtained the approval of its plans for the proposed bridge by the Board of Commerce and Navigation. The complainant and interveners pray judgment that the defendant company is without right or power to build the proposed bridge; that it would be an unlawful purpresture and public nuisance; and that its construction without the permission of the New Jersey Board of Commerce and Navigation and the Port Authority is unlawful, and for an injunction. The defendant Port Authority answered. The defendant company moved to dismiss the complaint on the ground that it failed to state a cause of action. The motion was granted by the District Court (287 Fed. 196), and its decree was affirmed by the Circuit Court of Appeals. 297 Fed. 77. Complainant and interveners appealed to this court. Judicial Code, § 241. By the legislation empowering the company to construct, maintain and use the railroad, the State of New Jersey consented to the construction of the bridge in question. At the time the bridge was built, there was no applicable legislation by Congress. And it was within the power of the State to authorize its construction. Willson v. Black-Bird Creek Marsh Company, 2 Pet. 245, 252; 382 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. Escanaba Company v. Chicago, 107 U. S. 678, 683. Chapter 64, Laws of New Jersey, 1860, provides: “That it shall and may be lawful for the Central Railroad Company of New Jersey to extend their railroad from some point in their track in the city of Elizabeth, to some point or points on New York bay, in the county of Hudson, at or south of Jersey City; and for that purpose, in its construction and completion, maintenance, use and enjoyment, all and every provision of the act entitled, ‘An act to incorporate the Somerville and Easton Railroad Company ’ [approved February 26, 1847], and of the several supplements thereto, shall extend and be applicable to the railroad now authorized to be constructed, in every respect as if the same had been originally authorized under the said act to which this is a supplement. [§1] . That the said railroad company shall construct a suitable bridge over any navigable water that they may cross, with a pivot draw with two openings, each of seventy-five feet in width, at right angles to the main channel, located at a point convenient for navigation . . . ” (§2.) Section 6 of the act of incorporation of 1847 confers upon the president and directors of the company “ all the rights and powers necessary and expedient to survey, lay out, and construct ” the railroad “ not exceeding one hundred feet in width, with as many sets of tracks and rails as they may deem necessary . . . and to erect embankments, bridges, ferries, and all other works necessary to lay rails and to do all other things which shall be suitable or necessary for the completion or repair of the said road or roads.” These laws conferred on the company not only the powers expressly defined, but also those which fairly are incidental thereto. Union Pacific Ry. Co. v. Chicago, &c. Ry. Co., 163 U. S. 564, 581. Necessary bridges are essential parts of the railroad; they are stretches of railroad over water. As to bridges over navigable waters, the act of 1860 specified draws and the num- NEWARK v. CENTRAL R. R. 383 377 Opinion of the Court. ber and width of openings. But it did not prescribe the number of tracks or other elements which were to constitute the railroad. The company was empowered to have as many tracks, within the width specified, as it deemed necessary. That the company in the first instance might have built a four-track bridge of permanent materials such as is now proposed, instead of the smaller wooden structure, cannot be doubted. The powers granted were not exhausted by the construction of the tracks and bridge first provided. Its charter was of unlimited duration. Bridges, as well as other elements of the property, must be replaced when they wear out or become inadequate. The company was empowered to maintain and improve its railroad, as it might from time to time find necessary or expedient. It was not bound to have its performance limited to the capacity of the bridge first constructed, but it was free to add to its transportation facilities by laying down additional tracks over waters crossed by its bridges as well as upon land. Plainly, authority to provide, as needed, better and stronger bridges having additional tracks is to be regarded as within the purposes of and incidental to the powers expressly given. See Railway Companies v. Keokuk Bridge Co., 131 U. S. 371, 385, 389; Brainard v. Clapp, 10 Cush. (Mass.) 6,10; Western Union Telegraph Co. v. Polhemus, 178 Fed. 904, 906. This case is not like Morris and Essex Railroad Co. v. Central Railroad Co., 31 N. J. L. 205, or McCran v. Erie Railroad Company, 95 N. J. Eq. 653. In the former, the company, having laid out its railroad in accordance with the charter, was held to be without power to add a branch or spur. In the latter, it was held that a change of a part of the line shortening a curve could not be made without complying with § 16 of the Railroad Act of New Jersey, requiring the consent of the Riparian Commission (now the Board of -Commerce and Navigation) and the payment of compensation to that body for land under water 384 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. taken by the company. Here no extension, branch, spur, or change of route is involved. The replacement was authorized by the United States. The act of August 8, 1919 authorized the company to construct a bridge suitable to the interests of navigation, between Elizabeth and Bayonne, in accordance with the Bridge Act of March 23, 1906. The latter requires the plans and specifications to be approved by the Chief of Engineers and Secretary of War (§ 1), and provides that, whenever Congress shall authorize a bridge over navigable waters of the United States, the authority shall cease unless construction be commenced within one year and completed within three years. § 6. The company failed to commence construction within one year. But the act of February 15, 1921 made the time for commencing and completing the bridge two and five years respectively from the date of its passage. The Chief of Engineers and Secretary of War, December 29, 1922, approved the plans. The supremacy of the power of Congress to regulate commerce with foreign nations and among the States and of the regulations made by the exertion of that power is so well known as not to require citation of authority. Undoubtedly, that power extends to the navigable waters of Newark Bay and to the plans for the replacement of the bridge in question. As both state and federal governments have authorized or consented to the construction of the bridge, we need not decide whether the acts of Congress and approval of the plans by the Chief of Engineers and Secretary of War would be sufficient without the consent of the State, or whether, in respect of the navigable waters of Newark Bay wholly within the State of New Jersey, the legislation of Congress supersedes the laws of the State. The laws of New Jersey do not require approval of the plans for the proposed bridge by the state Board of Commerce and Navigation. 377 NEWARK v. CENTRAL R. R. Opinion of the Court. 385 Section 4, c. 123, Laws of 1914, provides: “All plans for the development of any water front upon any navigable water or stream of this State, or bounding thereon . in the nature of individual improvement or development, or as a part of a general plan which involves the construction, change, alteration or modification of a dock, wharf, pier, bulkhead, bridge, pipe line, cable, or any other similar or dissimilar water front development, to be undertaken subsequent to the passage of this act, shall first be submitted to the said commission [the Board of Commerce and Navigation. §§ 5, 13, c. 242, Laws of 1915], and no such development . . . shall be commenced or executed without the approval of this commission first had and received . . .” And it declares that any such development or improvement commenced or executed without such approval shall be deemed to be a purpresture and a public nuisance. The company in February, 1917, June, 1918, and February, 1922, applied to that board for the approval of its plans for the proposed bridge. All its applications were denied. Nevertheless, the company is free to insist that such approval was not required. See Buck v. Kuykendall, 2^7 U. S. 307. The plans for the new bridge to replace the old one are not shown by any allegations of fact to constitute a “ plan for the development of any water front.” The construction or replacement of a railroad bridge across a bay or river is not necessarily a11 water front development.” The company was empowered under the act of 1860 not only to construct and maintain its railroad and the existing double-track bridge across the bay, but also to replace that bridge by another having additional tracks, whenever the company found it expedient so to do. We find nothing in the act to indicate an intention to require the plans for such replacement to be submitted to the state board. It is plain that the construction to be undertaken by the company for the maintenance and betterment of its rail-426840—25---------25 386 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. road bridge over the bay is not a “ water front development to be undertaken subsequent to the passage ” of c. 123, Laws of 1914. Approval by the Port Authority of the company’s plans for the proposed bridge was not required. There is no provision in any of the laws relating to the Port Authority, or to the comprehensive plan for the development of the port, which requires such approval. And the Port Authority does not claim that the company was required to obtain its permission. In its answer, it prays the court “ to determine its legal duties in the premises,” and expresses willingness to pass on the application for a permit if the court shall determine one is required. The complaint alleges that the bridge is not included in the comprehensive plan, and that the existing and proposed bridges “ are in conflict therewith, obstructive thereof, and inimical thereto.” But the fact that the bridge is not included does not make it unlawful, or leave the company without authority to construct it. It does not appear that the Port Authority has attempted, or has power, to deprive the company of its right to maintain, improve and use that part of its railroad. The assertion that the bridge is in conflict with the comprehensive plan is not supported by any facts alleged in the complaint or in the answer of the Port Authority. The pleader’s naked assertion is not enough to support the contention that the consent of the Port Authority was required. Decree affirmed. U. S. V. BUTTERWORTH-JUDSON CORP. 387 Statement of the Case. UNITED STATES ET AL. v. BUTTERWORTH-JUDSON CORPORATION ET AL. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 338. Argued December 9, 10, 1924.—Decided March 2, 1925. 1. Under the Act of October 6, 1917, § 5, c. 79, 40 Stat. 383, the Secretary of War was authorized to advance money to a contractor for carrying out a contract for producing and furnishing supplies of picric acid to the War Department and could provide the “ adequate security ” called for by the act by requiring the balances of the advanced funds be kept in special deposits subject to a lien in favor of the Government, in addition to requiring a collateral note of the contractor and surety bond. P. 392. 2. Under a contract for the erection of a plant, and manufacture and delivery to the Government of picric acid, the Government advanced the contractor moneys, to be deposited at interest in special bank accounts separate from the contractor’s other funds, such money to be drawn on only for specified purposes, and the balance thereof to be accounted for to the Government, either by deliveries of the acid at a specified price or by return of the amount, less authorized deductions, Held, (assuming that the title passed, establishing the relation of debtor and creditor,) that the purpose and effect of the special accounts were to provide security for the United States and that an equitable lien upon them existed in its favor, although not expressly reserved in the agreement. P. 393. 3. An equitable lien reserved by the United States as security for the proper use or return of funds advanced to a contractor, which under the agreement were deposited in special bank accounts for the purpose of providing such security,—held superior to the right of the"banks (they having notice of the agreement,) to set off such deposits against debts owed them by the contractor. P. 394. 297. Fed. 971, reversed. Appeal from a decree of the Circuit Court of Appeals affirming a decree of the District Court which dismissed, as to defendant banks, a suit brought by the United 388 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. States against the Butterworth-Judson Corporation and its receivers, the banks and several surety companies. The bill sought an accounting under a contract between the first named defendant and the United States, and to apply the balances of special deposits made by the contractor with the banks to the amount found due under the contract—also a decree for any deficiency against the surety companies on bonds furnished by the contractor. The contractor, receivers and surety companies answered and also filed counter claims against the banks, seeking to have the special account deposits paid over to the United States. The banks’ motions to dismiss the bill and counter claims were sustained by the courts below. Mr. William Marshall Bullitt, with whom Mr. Solicitor General Beck and Mr. Victor House, Special Assistant to the Attorney General, were on the brief, for the appellants. Mr. William C. Breed, with whom Mr. Edward J. Red-ington was on the brief, for National Newark & Essex Banking Company of Newark, N. J. Mr. David Paine, with whom Mr. Michael H. Cardozo, Jr., was on the brief, for Chase National Bank, et al. Mr. Justice Butler delivered the opinion of the Court. The United States, plaintiff below, and certain surety companies, defendants below, appeal from a decree of the Circuit Court of Appeals, 297 Fed. 971, affirming that of the District Court dismissing the complaint as to certain banks, defendants below, and dismissing counterclaims set up against the banks in the answers of the surety companies. The decree also dismissed counterclaims against the banks, set up in the answer of the U. S. V. BUTTERWORTH-JUDSON CORP. 389 387 Opinion of the Court. Butterworth-Judson Corporation and its receivers, defendants below. They have not appealed. The controversy concerns the right of the banks, as against appellants, to set off against debts owing to them by the Butterworth-Judson Corporation the deposit balances remaining with them in special accounts. The Butterworth-Judson Corporation, a contractor, and the United States made an agreement, dated May 9, 1918. The contractor agreed to select a site and, for a profit of one dollar and no more, to design, construct and equip thereon a plant for the production of picric acid, and to manufacture for the United States 72,000,000 pounds for 53 cents per pound. The entire cost of the plant was to be paid by the United States. The contractor was to make all necessary expenditures for the construction work, and the United States from time to time was to reimburse it therefor. The United States agreed to recommend to the War Credits Broad an advance payment to the contractor of $1,500,000, upon such terms as the board might prescribe; and also agreed that, if the board should require interest on the advance payment, it would reimburse the contractor as a part of the cost and expense of the latter under the contract. The United States reserved the right to cancel the agreement at any time that its need for the plant or output ceased. It agreed in such event to reimburse the contractor for its expenditures, to assume all its outstanding obligations incurred under the contract, and to pay for all the picric acid wholly or partly manufactured; and it agreed, in case of cancelation before 18,000,000 pounds were delivered, to pay three cents per pound for the undelivered portion up to that amount. The same parties made a supplementary agreement, dated May 22, 1918. The United States agreed to advance $1,500,000 to the contractor. The contractor agreed to account for the advance with interest, by applying that 390 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. amount to the payment of vouchers covering deliveries of picric acid. The contractor reserved the right at any time to repay in cash. If the United States did not recoup, through the deliveries of picric acid, the total amount of the advance with interest, the contractor was required to “ return to the Government, on demand, any balance of the said advance and interest after deducting the total of any recoupments made as hereinabove provided, together with all liquidated accounts that may be due and owing under the Principal Agreement from the Government to the contractor.” The contractor agreed to give the United States, as collateral security for the recoupment or return of the above mentioned advance and any interest due, its demand note for $1,500,000, bearing six per cent, interest, and to furnish a bond in the sum of $750,000, with surety, for the performance of the agreement. The United States reserved the right, in case of failure of the contractor to comply with the agreement, to sell the note and apply the proceeds to the repayment of the advance, accounting to the contractor for the surplus, if any. But it agreed not to negotiate or demand payment of the note, so long as the contractor was not in default, and to return the note and bond upon complete performance. And the agreement contained the following: “The contractor shall deposit the money advanced hereunder in special accounts in banks, separate from its other funds, and shall draw on said accounts only in payment of expenditures made and obligations incurred in designing, constructing and equipping the plant specified in the Principal Agreement, and for other equipment and for material, labor and overhead expense, required in the direct performance of the Principal Agreement, unless otherwise authorized in writing by the War Credits Board.” It was stipulated that the contracting officer might require the contractor to deposit in the special accounts the funds paid by the Government, reimbursing U. S. v. BUTTERWORTH-JUDSON CORP. 391 387 Opinion of the Court. the contractor for expenditures made from such advance payment. The contractor was to collect from the banks with which such accounts were kept such interest as is usually allowed for similar accounts, and credit or pay that interest to the Government. The bonds provided for in the principal and supplementary agreements were furnished. The United States advanced $1,500,000 to the contractor, and the latter gave its note as agreed. The contractor deposited the money with defendant banks in special accounts, and entered upon the performance of the agreement. It made withdrawals from these accounts for the specified purposes, and from time to time deposited therein the sums paid to it by the United States in reimbursement of its expenditures. The banks at all times knew that the moneys deposited by the contractor in the special accounts consisted exclusively of the advance payment and replenishments, and that all deposits and balances in these accounts were held pursuant to the principal and supplementary agreements. Shortly after the Armistice, the plant being less than half completed, the United States terminated the principal agreement. No picric acid had been manufactured. The United States reimbursed the contractor and assumed all the latter’s obligations under the principal agreement. It was shown in a creditors’ suit in the District Court that the contractor was unable to pay its debts, and April 22, 1922, the court appointed receivers who are defendants in this case. Neither the contractor nor its receivers accounted to the United States for any part of the advance of $1,500,000 or interest, except $348,-550, leaving unaccounted for, as the United States claims, $1,151,450. The total of the balances in the special accounts on April 22, 1922, was $519,631.99. On that day, the contractor was indebted to each of the banks in an amount in excess of the balance in the special account with it, and each bank set off the amount of such deposit against the debt owed by the contractor. 392 OCTOBER TERM, 1924. Opinion of the Court. 267 U. 8. The suit was for an accounting and to have the balances in the special accounts applied on the amount found unaccounted for and due the United States on the settlement of the account between it and the contractor. In affirming the District Court, the Circuit Court of Appeals held that the advance payment was for supplies purchased and thereafter to be delivered, and that the Secretary of War had no authority to retain title to the moneys advanced and make the contractor agent of the United States for its disbursement; that the supplementary agreement created no relation of trust or agency between the parties, but only that of debtor and creditor. It held that the doctrine of trust, or equitable lien, or equitable assignment, did not apply, and that the banks had the right of set-off. The appellants maintain that the United States had an equitable lien on the balances in the special accounts, and that the banks, having notice of the lien, could not set off the deposits against the debts owed them by the contractor. The advance payment was made under the authority of an act of Congress of October 6, 1917, § 5, c. 79, 40 Stat. 383, which provides: “ That the Secretary of War and the Secretary of the Navy are authorized, during the period of the existing emergency, from appropriations available therefor to advance payments to contractors for supplies for their respective departments in amounts not exceeding thirty per centum of the contract price of such supplies: Provided, That such advances shall be made upon such terms as the Secretary of War and the Secretary of the Navy, respectively, shall prescribe and they shall require adequate security for the protection of the Government for the payments so made.” The act was intended to relax, during the period of the war, the strict rule against advances of public money. See R. S. § 3648. The Floyd Acceptances, 7 Wall. 666. The act plainly authorized advance payments, such as that covered by U. S. V. BUTTERWORTH-JUDSON CORP. 393 387 Opinion of the Court. the supplementary agreement. It left the terms to the discretion of the Secretary of War, subject to the duty to require adequate security, but the act did not specify or limit the amount or kinds of security to be taken. A lien upon and right over the balances in the special accounts required to be kept is clearly within the meaning of the word “ security,” as used in the act. The power of the Secretary to exact such a lien or right in addition to the collateral note and surety bond cannot be doubted. The agreements made the balances in the special accounts security for the obligations of the contractor and so created an equitable lien in favor of the United States. The established rule as to the creation of equitable liens is stated in Walker v. Brown, 165 U. S. 654, 664: 1‘ The doctrine may be stated in its most general form that every express executory agreement in writing, whereby the contracting party sufficiently indicates an intention to make some particular property, real or personal, or fund, therein described or identified, a security for a debt or other obligation, or whereby the party promises to convey or assign or transfer the property as security, creates an equitable lien upon the property so indicated, which is enforceable against the property in the hands not only of the original contractor, but of his heirs, administrators, executors, voluntary assignees and purchasers or encumbrancers with notice.” See also Hauselt v. Harrison, 105 U. S. 401, 405; Ingersoll v. Coram, 211 U. S. 335, 368; Pomeroy’s Equity Jurisprudence (4th ed.) §§ 1233, 1234, 1235. It may be assumed that the United States did not retain title to the advance payment, and that when it was made it became the property of the contractor, and also that the contract contemplated that the relation of debtor and creditor might arise. The contractor’s obligation, subject to its right at any time to repay the Government in cash, 394 OCTOBER TERM, 1924. Opinion of the Court. 267 U. 8. was to account for the amount of the advance with interest, by deliveries of the picric acid at the agreed price, or to return that amount to the United States, after making the authorized deductions, if any. The contractor’s note and the surety bond were given to secure performance of the agreement. And the requirement that the contractor deposit the money in special accounts in banks, separate from its other funds, and collect and account for interest on deposit balances, and draw on such accounts only for the purposes specified and return the balance of the advances, was additional security. It was to make more certain the performance of the agreement. The purpose and effect of the special accounts was to identify and keep separate the advance payment and replenishments, to limit the use of the fund to the purposes specified, and so to make it available as security to the United States. Failure of the agreement expressly to grant a lien on or declare these balances to be additional security is not significant. See Barnes v. Alexander, 232 U. S. 117, 121. The Armistice came, and the United States terminated the agreement before there was any production at the plant. The advance and replenishments were not wholly expended, or accounted for by deliveries of picric acid. The contractor was bound to “ return ” and the United States was entitled to demand and have “ any balance of the said advance ” remaining after the deductions authorized. The agreements show that the parties contemplated that the need for picric acid might cease before the advance payment was covered by deliveries; and bound the contractor, in that event, to return the balances in the special accounts to the United States. This case is plainly within the rule. Ordinarily, the relation existing between banks and their depositors is that of debtor and creditor, out of which the right of set-off arises. As a general rule, in the LOUISVILLE & NASHVILLE R. R. v U. S. 395 387 Syllabus. absence of an agreement to the contrary, a deposit, not made specifically applicable to some other purpose, may be applied by the bank in payment of the indebtedness of the depositor. See Studley v. Boylston Bank, 229, U. S. 523, 528; New York County Bank v. Massey, 192 U. S. 138, 145; National Mahawie Bank v. Peck, 127 Mass. 298, 300. But a bank having notice that a deposit is held by one for the use of or as security for another has only such right of set-off as is not inconsistent with the rights of the latter. Here, the banks had knowledge of the agreements, under which these balances constituted security for the advance made by the United States. By acceptance of the moneys furnished in accordance with the agreement, their right of set-off was made subject to the rights of the United States and the obligations of the contractor. See National Bank v. Insurance Co., 104 U. S. 54, 71; Union Stock Yards Bank v. Gillespie, 137 U. S. 411, 421; Boyle v. Northwestern National Bank, 125 Wis. 498, 507. The appropriation of these balances by the banks cannot be sustained. Decree reversed. LOUISVILLE & NASHVILLE RAILROAD COMPANY v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 29. Argued December 4, 1924—Decided March 2, 1925. 1. Contracts for sale and delivery of coal to the United States, construed, with the advertisements, specifications and conduct of the parties, as providing for delivery on cars at the mine; so that title passed then and the railroad transportation, on government bills of lading, was subject to land-grant rates. P. 397. 2. Provisions in such contracts for service by the vendor in transferring the coal to barges at railroad destination, compensation therefor to be included in price of coal; and reserving right of United States to test coal after transportation and reject it if 396 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. not up to specifications,—held not inconsistent with passing of title at time of delivery on cars at the mine. P. 400. 3. Where the United States contracted for coal to be shipped by rail and delivered at a vessel, use of government bills of lading, and payment of freight by the United States at land-grant rates, were not enough to sustain a finding that the coal was the property of the United States when hauled by the railroad. P. 401. 4. When a railroad company, entitled to charge the United States the full tariff rate, charges and receives the reduced land-grant rate with full knowledge of the facts, it is bound by its acquiescence and cannot recover the difference. Id. 5. Where, under its tariff, the right of a railroad to charge extra for switching and transferring coal at destination depends upon road-haul revenue being equal to as much as a stated rate per ton, land-grant deductions from the latter allowed the United States are not to be considered in determining its liability to such extra charges. P. 402. 57 Ct. Cis. 268, affirmed. Appeal from a judgment of the Court of Claims rejecting the Railroad’s claim for transportation, switching and handling of freight for the United States. Mr. Benjamin Carter, for appellant. Mr. Blackburn Esterline, Assistant to the Solicitor General, for the United States, submitted. Mr. Justice Butler delivered the opinion of the Court. This action was brought in the Court of Claims to recover the amount by which tariff-rate freight charges on certain coal were reduced by government land-grant deductions; and also to recover certain charges for switching and handling. The court made findings of fact, and gave judgment for defendant. 57 Ct. Cis. 268. One of the lines of appellant’s railroad enters Alabama from the north and extends southerly through Decatur, Birmingham and Flomaton to Pensacola, Florida, and thence easterly to River Junction, Florida. This is a land-aided LOUISVILLE & NASHVILLE R. R. v U. S. 397 395 Opinion of the Court. line. Appellant has another line extending southwesterly from Flomaton to Mobile. At Mobile and Pensacola, it owns wharves and hoists for transferring coal from cars to boats, and has constructed switches from its main line to the wharves. All of these were built without government aid. The wharves and hoists at Mobile are operated by a coal company and those at Pensacola by appellant. All the coal in question came from mines in the Birmingham district and was purchased by the United States for engineering work at Mobile, Pensacola and other places on or near the Gulf, except 250 tons bought for the use of the U. S. S. Tonopah. It was transported on government bills of lading and was carried in whole or in part by the use of such land-aided railroad. The coal was furnished to the United States under a contract with the Gulf States Coal Company of March 15, 1915, a contract with the Imperial Coal and Coke Company of August 21, 1916, advertisements, specifications, bids and acceptances without formal contracts between November 2, 1914 and September 10, 1917, and a bid and acceptance as of April 8, 1915, for the Tonopah. The Court of Claims held that all shipments, except those made under the contract of March 15, 1915, were subject to land-grant deductions. Appellant maintains that none was subject to the reduced rates. We are of opinion that all the coal, except that furnished the Tonopah, was delivered to and became the property of the United States before it was hauled by appellant, and was entitled to the reduced rates. The general rule is that, if a consignee accepts a shipment, he becomes liable as a matter of law for the full amount of freight charges. Louisville and Nashville R. R. n. Central Iron Co., 265 U. S. 59, 70; Pittsburgh, &c. Ry. Co. v. Fink, 250 U. S. 577, 580. Under the landgrant acts, the United States was entitled to the reduced 398 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. rates if the coal when hauled was its property. Acts of May 17, 1856, June 3, 1856, and March 3, 1857, 11 Stat. 15, 17, 200; Acts of April 10, 1869, and March 3, 1871, 16 Stat. 45, 580; Act of March 3, 1875, 18 Stat. 509. Illinois Central R. R. v. United States, 265 U. S. 209. But the mere use of government forms of bills of lading is not conclusive on the question of ownership of property at the time of transportation, and does not give the United States the right of transportation at land-grant rates. See Transportation Involved in Furnishing Articles by Contractor, 20 Comp. Dec. 721, 723. The contract of March 15, 1915, was made pursuant to advertisement and specifications. The specifications, which were attached to and made a part of the contract, show that, in order to permit the United States to take advantage of land-grant rates, the form of proposal contemplated either “ delivery of the whole quantity at the mine, from which shipment will then be made on Government bill of lading to Mobile, Pascagoula, or Gulfport, as may be necessary, or delivery of about 7,000 tons at Mobile, Ala., about 5,000 tons at Pascagoula, Miss., and about 6,000 tons at Gulfport, Miss.” And it was specified: “ The United States will select the method of delivery which under the proposals received proves to be most economical and advantageous. If mine delivery is selected, the coal will be ordered in carload lots for shipment on Government bills of lading to be furnished by the contracting officer, but the contractor will be required to transfer it from cars to barges belonging to the United States and will therefore include in his price his cost for so transferring the coal at all three points of delivery. ... If prices based on delivery at Mobile, Pascagoula, and Gulfport prove to be more advantageous, then these prices will be accepted and order will be given for carload lots or less as may be required on board United States barges or in bunkers ” at the three places LOUISVILLE & NASHVILLE R. R. v U. S. 399 395 Opinion of the Court. named. The contract contains the following: “ In conformity with the advertisement and specifications hereunto attached, which form a part of this contract, the said contractor shall furnish and have delivered on United States barges, or in bunkers, from hoists, in carload lots, at Mobile, Alabama, when requested, eighteen thousand short tons, more or less. . . . Coal to be shipped on Government bill of lading, to be furnished by the contracting officer, the United States to' pay railroad freight charges between Dixiana [where the mines were located] and Mobile and the contractor to provide for transferring the coal from cars to United States barges and to pay all demurrage charges that may accrue.” The United States reserved the option to call on the contractor to tow the coal from Mobile to Pascagoula and Gulfport and agreed to make additional payments for that service, and also reserved the right to inspect and test the coal after transportation and to reject such as did not conform to specifications. The purchase price was to be paid after delivery and final acceptance. The language “shall furnish and have delivered on United States barges . . if it stood alone, might be taken to indicate that delivery was to be made after transportation. But when read, as it must be, with the advertisement and specifications, and in the light of what was done, it appears with reasonable certainty that delivery at the mines was contemplated. The specifications distinctly show that, if mine delivery should be selected, the coal would be ordered in carload lots and shipped on government bills of lading. In harmony with that provision, the contract required shipment in carload lots on forms of bills of lading furnished by the contracting officer, and bound the United States to pay freight charges from the mine to Mobile. This meant that the contractor was not to be concerned with or responsible for the transportation by rail. But, if delivery 1^1 in 4 ly 400 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. at gulf ports had been selected, the contractor would have been bound to hire the carrier and to pay the freight. The provisions of the contract and specifications together amount to a declaration of the parties that there was to be delivery of the whole quantity at the mine, and the conduct of the parties was in harmony with that purpose and inconsistent with an intention that delivery to the United States should be made after transportation by rail was ended. The general rule is that title passes from seller to buyer with the delivery of the goods. All the coal except that furnished the Tonopah was delivered by the seller to the United States at the mines on board railroad cars of appellant, a common carrier designated by the United States by the furnishing of government bills of lading. It must be held that title passed at the time of such deliveries. See United States v. Andrews, 207 U. S. 229, 240, 243. The contract contemplated service by the contractor, as well as the sale of coal. The contractor agreed to have the coal transferred from cars to government barges, his compensation therefor to be included in the price, and agreed for specified prices to tow it to points on the Gulf coast, if requested so to do, and also undertook to furnish and deliver at various places some 9,000,000 gallons of fresh water for steam and drinking purposes. The services were not essential to or part of the sale, and, as against the other facts found, the agreements to transfer and tow the coal do not indicate that the parties intended that delivery by the seller to the purchaser should not be made until after transportation. Hatch v. Oil Co., 100 U. S. 124, 137; McElwee n. Metropolitan Lumber Co., 69 Fed. 302, 305; H. Baars & Co. v. Mitchell, 154 Fed. 322, 326. The United States reserved the right to inspect and test the coal after transportation and to reject it, if found not to conform to specifications. None of the coal was LOUISVILLE & NASHVILLE R. R. v U. S. 401 395 Opinion of the Court. rejected. This right was not inconsistent with transfer of title to the United States at the time of delivery of the coal on cars at the mine. Delaware, Lackawanna & Western R. R. v. United States, 231 U. S. 363, 371, 372; Illinois Central R. R. v. United States, supra. By the contract of August 21, 1916, the seller expressly agreed to deliver the coal on railroad cars at the mines at Dixiana. Deliveries of the coal furnished without formal contracts were covered by specifications which were the same as those forming a part of the contract of March 15, 1915. The conclusion that the coal furnished the Tonopah was to be delivered at the mine is not sustained by the facts found. Under the invitation to bid, proposal and acceptance, delivery was to be made alongside the vessel at Pensacola. The coal was transported on government bills of lading. The United States paid the freight less land-grant deductions. The use of government bills of lading and the payment of reduced charges by the United States are not sufficient to sustain a finding that the coal was the property- of the United States when hauled by appellant. There is nothing to indicate that title passed before delivery at the vessel. We agree with the Court of Claims that acceptance of payment of the land-grant rates concludes appellant. Its conduct was inconsistent with an intention to claim the amount of land-grant deduction, as to any of the coal. Appellant rendered bills as to the coal furnished under the above mentioned contracts of March 15, 1915 and August 21, 1916, upon which it stated the basic rate and the amount to be deducted on account of land grant, and claimed the net remaining after the deduction. There was no evidence tending to show that, in presenting its bills at land-grant rates, appellant did not act with full knowledge of all the facts. Settlements for transporting some of the coal were made after the commencement of 42684°—25--------26 402 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. this suit, April 26, 1916, but before the amended and supplemental petition was filed, January 9, 1922. Appellant did not protest against any land-grant deductions. It is bound by its acquiescence and consent and cannot recover the amounts deducted. Oregon-Washington R. R. Co. v. United States, 255 U. S. 339, 345; New York, New Haven & Hartford R. R. v. United States, 251 U. S. 123, 127; New York, New Haven & Hartford R. R. v. United States, 258 U. S. 32; Louisville & Nashville R. R. v. United States, 258 U. S. 374. The Court of Claims was right in disallowing additional pay for switching cars to wharves or for transferring coal from cars to boats. The tariff rates on this coal for bunkerage and purposes other than export or coastwise traffic were $1.10 per short ton via Flomaton to Mobile or Pensacola. Under the tariff the cost of transferring such coal from cars to vessels at Mobile and Pensacola was assumed by appellant, where the road-haul revenue was $1 per ton or more; but if such revenue was less there was an additional charge of ten cents per ton, plus $2 per car for switching, subject to a maximum of $1 per ton. After land-grant deduction, the balance to be paid in money was less than a dollar per ton. But the land grant, made many years ago in aid of the railroad enterprise, was not a mere gift or gratuity. See Burke v. Southern Pacific R. R. Co., 234 U. S. 669, 679. The carrier’s obligation to haul property of the United States at reduced rates was a part of the consideration for which the land grant was made. Part of appellant’s compensation for hauling the coal was paid in land, and the balance was paid in money. It cannot be said that the total was less than a dollar per ton. Judgment affirmed. C., M. & ST. P. RY. v. UNITED STATES. 403 Opinion of the Court. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 83. Argued December 4, 1924.—Decided March 2, 1925. A railroad company which made out and presented freight bills to the Government for net transportaton charges after making land grant deductions, and accepted without protest payment of the amount so claimed,—held not entitled to recover upon the ground that the Government should not have been allowed the deductions. 58 Ct. Cis. 33, affirmed. Appeal from a judgment of the Court of Claims re-. jecting the Railroad’s claim for transportation of freight. Mr. Benjamin Carter, for appellant. Mr. Blackburn Esterline, Assistant to the Solicitor General, for the United States, submitted. Mr. Justice Butler delivered the opinion of the Court. Appellant brought this action, October 29, 1917, to recover the amounts by which freight charges on certain materials transported over its railroad were reduced by the application of government land-grant rates. All the freight was transported on government bills of lading and moved in whole or in part by the use of appellant’s land-aided lines of railroad. The shipments, including coal, sand, cement, piling and lumber, were made in the years 1909 to 1916, inclusive. Some of appellant’s lines of railroads were constructed by the aid of land granted by an Act of Congress of May 12, 1864, § 3, c. 84, 13 Stat. 73. See Lake Superior & Mississippi R. R. Co. v. United States, 93 U. S. 442; Act of August 5, 1882, c. 390, 22 Stat. 261. The appellant deemed the United States to be entitled to have its property transported over such 404 OCTOBER TERM, 1924. Syllabus. 267 U. S. lines at 50 per cent, of the tariff rates. Two of appellant’s lines of railroad in Minnesota were constructed by the aid of land granted by an Act of Congress of July 4, 1866, § 3, c. 168, 14 Stat. 88. Appellant made no charges for the shipments that moved over these lines. Appellant alleged that when it received and transported such freight it believed it belonged to the United States, and had no intimation that the shipments were private property until the latter part of 1916. The Court of Claims held that all the shipments belonged to the United States, and that it was entitled to transportation of its property at 50 per cent, of the tariff rates on the aided lines first above referred to and to free transportation on those last mentioned, and found that it was not shown whether appellant was informed as to the title to the property. The court further found that in every instance appellant made out and presented freight bills to the Government for the net charges after making proper land grant deductions, and that the payment of the full amount so claimed was made and accepted without protest. Appellant is not entitled to recover. Louisville & Nashville R. R. v. United States, decided this day, ante, p. 395, and cases cited. Judgment affirmed. MISSOURI PACIFIC RAILROAD COMPANY v. STROUD. CERTIORARI TO THE SPRINGFIELD COURT OF APPEALS OF THE STATE OF MISSOURI. No. 168. Argued January 14, 1925.—Decided March 2, 1925. Where a carrier has two routes by which freight may move between two points within a State, one route wholly within the State and the other partly through another, a prospective shipment which, following the carrier’s practice and in the absence of preference MISSOURI PACIFIC R. R. CO. v. STROUD. 405 404 Opinion of the Court. expressed by the shipper, would move over the latter route, is to be governed by the Interstate Commerce Act, in respect of the carrier’s duty to avoid discrimination in furnishing cars, and a State regulation in that regard is therefore inapplicable. P. 407. 212 Mo. App. 512, reversed. Certiorari to a judgment of the Court of Appeals of Missouri affirming, with a reduction, a judgment for treble damages recovered by Stroud from the Railroad Company, under Rev. Stats. Mo. §§ 9985, 9990, for discrimination in furnishing freight cars. Mr. Thomas T. Railey for petitioner. Messrs. Edw. J. White, Jas. F. Green, and J. C. Sheppard, were on the brief. Mr. George H. Moore, for respondent, submitted. Mr. Justice Butler delivered the opinion of the Court. This action was brought by the respondent against the petitioner in the Circuit Court of Ripley County, Missouri, to recover treble damages under §§ 9985, 9990, Revised Statutes of Missouri, 1919. The petitioner is a common carrier of freight and passengers for hire by railroad in Missouri and other States. Section 9985 contains the following: “ It shall be unlawful for any such common carrier to make or give any undue or unreasonable preference or advantage to any particular person . . . in the transportation of goods ... or to subject any particular person ... to any undue or unreasonable prejudice or disadvantage with respect to such transportation . . .” Section 9990, among other things, makes the carrier liable to any person injured by a violation of the above quoted provision for three times the amount of damages sustained. June 12, 1920, respondent, who was engaged in the lumber business, had 20,000 feet of hardwood lumber 406 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. ready for shipment at Oxly, Missouri, a station on petitioner’s railroad, and applied for two cars on which to ship the lumber to Saint Louis, Missouri. The petitioner failed to furnish him any cars until August 19, 1920. After he had ordered the cars, and 'before they were delivered, other shippers at Oxly applied to the petitioner for, and were furnished, cars for the transportation of lumber. Respondent alleged that by § 9985 petitioner was prohibited from so discriminating against him, and that as a result of such unlawful discrimination he was damaged in the sum of $1,000. The complaint alleged the foregoing facts, but contained no allegation that respondent attempted to designate any route, intrastate or interstate, for the transportation of his lumber. The answer denied the discrimination and alleged that petitioner moves its cars from Oxly to Saint Louis over two routes: one wholly within the State of Missouri; the other by way of Thebes, crossing the Mississippi River at that point and running through the State of Illinois into Saint Louis; that the usual and regular way of routing cars loaded with lumber at Oxly and consigned to Saint Louis would be over the latter route through the State of Illinois and would be interstate commerce, and that § 9985 has no application to the facts stated in respondent’s complaint. The first trial resulted in a judgment for respondent which was reversed on appeal. 210 Mo. App. 311. However, the Court of Appeals held that, under these sections, an action lies for damages for discrimination in furnishing cars for the shipment of lumber which could have gone over either an intrastate or interstate route. At the second trial, petitioner’s superintendent of transportation testified that, under the routing circular then in force, respondent’s lumber would have been hauled over the interstate route; that the line on the Missouri side of the river passes over Iron Mountain and other Ozark MISSOURI PACIFIC R. R. CO. v. STROUD. 407 404 Opinion of the Court. hills, and that the routing through Illinois over the more level line is made as a matter of operating convenience and economy. There was no other evidence on the point. Cf. 210 Mo. App. 316. Respondent did not attempt to designate any route, intrastate or interstate, and there is nothing to show that he expressed or had any preference in respect of the route. At the close of all the evidence in the case, the petitioner requested the court to instruct the jury to return a verdict for petitioner. The court refused to do so, and, notwithstanding the fact that respondent’s lumber would have moved over the interstate route, submitted the case to the jury. There was a verdict of $1,000 for respondent, and judgment was entered for three times that amount. Petitioner appealed. 212 Mo. App. 512. The Court of Appeals held that respondent was not entitled to a verdict in excess of $502.50, and ordered that, if respondent filed remittitur, judgment for $1,507.50 would be affirmed. The remittitur was filed and judgment entered accordingly. The case is here on certiorari. § 237, Judicial Code. Congress, in the exertion of its power over commerce among the States, has enacted laws for the regulation of the furnishing of cars to shippers. Interstate Commerce Act, §1, (3), (4), (6), (10), (11), (12), (14); §3 (1); §15 (1). See United States v. New River Company, 265 U. S. 533, 541. Section 3, c. 104, 24 Stat. 380 (as amended February 28, 1920, § 405, c. 91, 41 Stat. 479) is very similar to § 9985, and contains the following : “ That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or for any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or dis- 408 OCTOBER TERM, 1924. Syllabus. 267 U.S. advantage in any respect whatsoever.” It is elementary and well settled that there can be no divided authority over interstate commerce, and that the acts of Congress on that subject are supreme and exclusive. Transportation from Oxly to Saint Louis over the route partly within and partly outside of Missouri is interstate commerce. Hanley v. Kansas City Southern Ry. Co., 187 U. S. 617, 620; Western Union Telegraph Co. n. Speight, 254 U. S. 17. It was shown that the shipment would have moved by that route. The record discloses no facts which would impose upon petitioner any obligation to haul respondent’s lumber over the intrastate route. See Northern Pacific Ry Co. v. Solum, 247 U. S. 477, 482. The state law has no application to the furnishing of cars to shippers for the transportation of freight in interstate commerce. Chicago, Rock Island & Pacific Ry. v. Hardwick Elevator Co., 226 U. S. 426, 435; Southern Ry. Co. v. Reid, 222 U. S. 424, 435; Steel v. Railroad, 165 Mo. App. 311, 317. Judgment reversed. UNITED STATES AND BOWERS, COLLECTOR OF INTERNAL REVENUE, v. KAUFMAN, TRUSTEE IN BANKRUPTCY OF FINKELSTEIN, ET AL. UNITED STATES AND BOWERS, COLLECTOR OF INTERNAL REVENUE, v. COXE, RECEIVER OF JONES AND BAKER, BANKRUPTS. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. Nos. 515 and 516. Argued January 13, 1925.—Decided March 2, 1925. 1. A tax assessed under Revenue Act of 1918 upon the income of a partner, is a tax against the individual and not the partnership, UNITED STATES v. KAUFMAN. 409 408 Opinion of the Court. whether or not his income was derived from partnership business. P. 410. 2. In proceedings in bankruptcy against a partnership the partnership assets must first be applied to the payment of the partnership debts, and the United States is not entitled to any priority of payment out of such assets for a tax due it from an individual partner, except to the extent of the share of such partner, if any, in the surplus remaining after the payment of the partnership debts. Bankruptcy Act, §§ 5f, 64 (a); Rev. Stats. §§ 3466, 3186, as amended, considered. P. 411. 298 Fed. 11, affirmed. Certiorari to judgments of the Circuit Court of Appeals affirming orders of the District Court, in bankruptcy, which denied the right of the United States to have the income taxes of individual partners paid out of the assets of their bankrupt firms in preference to the claims of partnership creditors. Mr. Merrill E. Otis, Special Assistant to the Attorney General, with whom Mr. Solicitor General Beck was on the brief, for the United States. Mr. J. M. Hartfield, with whom Mr. Alfred C. Coxe Jr. and Mr. William St. John Tozer were on the brief, for respondents. Mr. Justice Sanford delivered the opinion of the Court. These two cases were heard together in the Circuit Court of Appeals. They involve a single question relating to the extent of the priority of the United States in the collection of taxes in bankruptcy proceedings. In 1921, on an involuntary petition filed in the Southern District of New York, Finkelstein Brothers, a partnership, and the individual partners thereof, were adjudged bankrupts. In 1923 the Collector of Internal 410 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. Revenue filed proof of claim for an income tax assessed against Abraham Finkelstein, one of the partners, for the year 1919. It is stipulated that the income on which this tax was based “ was derived from the business of the copartnership.” No individual assets of Finkelstein had come into the hands of the trustee, and the partnership assets were insufficient to yield any surplus after the payment of the partnership debts. The Collector claimed that the tax against Finkelstein should be paid out of the partnership assets prior to the partnership debts. The referee denied this claim, and ordered that the partnership assets first be applied to the payment of the partnership debts. This order was affirmed by the District Judge. In 1923 an involuntary petition in bankruptcy was filed in the same court against Jones & Baker, a partnership. A receiver was appointed, who collected and held the partnership assets. Before an adjudication of bankruptcy the partnership offered a composition to its creditors at less than the full amount of their claims. This was confirmed by the District Judge. Before the partnership assets were distributed, the Collector of Internal Revenue filed proofs of claims against the individual partners for income taxes assessed against them for the years 1918, 1919 and 1920. It does not appear that the income on which these taxes were based was derived from the business of the partnership. The Collector claimed that these taxes should be paid out of the partnership assets prior to the payments to the partnership creditors. The District Judge denied this claim of priority. On appeals to the Circuit Court of Appeals both orders of the District Court were affirmed. 298 Fed. 11. Writs of certiorari were granted by this court. 266 U. S. 596. 1. These taxes were assessed against the individual partners and due from them to the United States. They were neither assessed against, nor due from, the partner- 408 UNITED STATES v. KAUFMAN. Opinion of the Court. 411 ships. The tax assessed against Finkelstein was none the less an individual tax because the income on which it was based was derived from partnership business. The Revenue Act of 1918, 40 Stat. 1057, c. 18, § 218 (a), under which it was assessed, specifically provided that “individuals carrying on business in partnership shall be liable for income tax only in their individual capacity.” The provision that in computing the income of each partner there should be included his distributive share of the income of the partnership, whether distributed or not, did not change the nature of the tax or make it one against the partnership. 2. The Bankruptcy Act gives the United States no priority of payment out of partnership assets for a tax due from an individual partner. Section 64(a), which provides that “ the court shall order the trustee to pay all taxes legally due and owing by the bankrupt to the United States ... in advance of the payment of dividends to creditors,” manifestly relates to the payment of the taxes out of the estate of the bankrupt from whom they are “ due and owing.” Where the bankrupt owing the tax is a member of a partnership, it gives the United States no priority of payment out of the partnership estate. The Bankruptcy Act clearly recognizes the separate entity of the partnership for the purpose of applying the long-established rule as to the prior claim of partnership debts on partnership assets and of individual debts on individual assets, and “ establishes on a firm basis the respective equities of the individual and firm creditors.” Francis v. McNeal, 228 U. S. 695, 700; Schall v. Camors, 251 U. S. 239, 254. Section 5f provides that: “The net proceeds of the partnership property shall be appropriated to the payment of the partnership debts, and the net proceeds of the individual estate of each partner to the payment of his individual debts. Should any sur 412 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. plus remain of the property of any partner after paying his individual debts, such surplus shall be added to the partnership assets and be applied to the payment of partnership debts. Should any surplus of the partnership property remain after paying the partnership debts, such surplus shall be added to the assets of the individual partners in the proportion of their respective interests in the partnership.” The intention of Congress that the partnership assets shall be first applied to the satisfaction of the partnership debts, and that only the interests of the partners in the surplus remaining after the payment of partnership debts shall be applied in satisfaction of their individual debts, is plain. It is urged, however, on the authority of United States v. Herron, 20 Wall. 251, 255, and other cases, that as the United States is not named in this section of the Bankruptcy Act it is not bound by the rule for marshalling assets thereby established. But, however this may be, it is clear that, independently of the provisions of this section, the priority of payment of taxes given the United States by § 64(a) extends only to the bankrupt’s share in the surplus of the assets of a partnership of which he is a member. This follows from the decision in United States v. Hack, 8 Pet. 271, 275, a case arising under the Act of March 2, 1799,1 providing that if the maker of any bond given to the United States for the payment of duties became insolvent or committed an act of bankruptcy, the debt due the United States on such bond should be first satisfied. The maker of such a bond had become insolvent. He had no individual property, and the assets of an insolvent partnership of which he was a member, were insufficient to pay the partnership creditors. It was held, on these facts, that the United States was not entitled to priority of satisfaction out of the partnership assets, since the Act merely gave it priority of pay- 13 Laws, U. S. 136, 197; 1 Stat. 627, 676, c. 20, § 65. 408 UNITED STATES v. KAUFMAN. Opinion of the Court. 413 ment out of the property of its debtor, and the rule was too well settled to be questioned that his interest in the partnership property was his share in the surplus after the partnership debts were paid, and that such surplus only was liable for his separate debts. To the same effect is United States v. Evans, Crabbe, 60, 25 Fed. Cas. 1033, a case arising under the same Act. These decisions are directly applicable to § 3466 of the Revised Statutes— on which the United States relies—which incorporated the provisions of the Act of 1799 and similat Acts of August 4, 1790, and March 3, 1797, in the general provision that whenever any person indebted to the United States is insolvent, the debts due to the United States shall be first satisfied, and that this priority shall extend to cases in which an act of bankruptcy is committed. And in so far as this section, under the rule stated in Guarantee Co. v. Title Guaranty Co., 224 U. S. 152, may now be applicable in bankruptcy proceedings, it must be held that any priority of payment to which the United States is entitled for a debt due it from an individual partner, extends only to his share in the surplus of the partnership assets. There is no conflict between the decisions in these cases and in Lewis v. United States, 92 U. S. 618, 624, and In re Strassburger, 4 Woods 557, 23 Fed. Cas. 224, on which the United States relies. In the Lewis Case the members of the firm of Jay Cooke & Co. had been adjudicated bankrupts, and a trustee had been appointed who held their individual assets and those of the firm as well. This firm was not indebted to the United States, but another firm, of which several of the bankrupts were members, was so indebted. On these facts it was held that the bankrupt members of such other firm, as to its indebtedness, stood to the United States in the relation of “ individual debtors,” and that under the priority given to debts due the United States by § 3466 of the Revised 414 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. Statutes, recognized and reaffirmed in § 28 of the Bankruptcy Act of 1867, it was entitled, as a creditor of these individual bankrupts, to priority of payment out of their individual estates. There was, however, no suggestion that the United States as a creditor of these individual bankrupts was entitled to priority of satisfaction out of the partnership assets of Jay Cooke & Co. In the Strassburger Case, Mr. Justice Bradley, sitting at circuit, while explicitly recognizing the rule that where one member of a firm is indebted to the United States, its priority extends only to his interest in the surplus of the partnership assets, held that as the United States had a judgment against both members of the firm, it was entitled to priority of payment thereof out of their joint property in preference to their joint creditors. Whether a correct result was reached we need not inquire. And if to any extent the reasoning in this case may be in conflict with that in the Hack Case, it cannot be approved. Nor is the contention of the United States strengthened by the provision in § 3186 of the Revised Statutes, as amended by the Act of March 4, 1913, c. 166, 37 Stat. 1016, that the amount due the United States from any person as a tax shall be a lien on all property and rights to property belonging to such person. To whatever extent this statute may be now applicable in a bankruptcy proceeding, under its very terms the lien includes only the property of the person owing the tax; and in the case of a partner owing an individual tax, it extends only to his interest in the surplus of the partnership property. It results that in proceedings in bankruptcy against a partnership the partnership assets must be first applied to the payment of the partnership debts, and that the United States is not entitled to any priority of payment out of such assets for a tax due it from an individual partner, except to the extent of the share of such partner, if any, in the surplus remaining after the payment of the partnership debts. PRICE v. MAGNOLIA PETROLEUM CO. 415 408 Syllabus. 3. The United States also relies, independently of the foregoing matters, upon the decision in Re Brezin (D. C.) 297 Fed. 300, 306, in which it was held that as the individual partners, instead of drawing out their distributive shares of the income of the partnership from year to year had left a large portion thereof in the partnership business, the United States had a claim in the nature of an equitable lien for the collection of their individual income taxes which it could follow into the partnership property. Whether br not this case was correctly decided on its peculiar facts, it has no application to either of the present cases, in which no such facts appear. The decree of the Circuit Court of Appeals is Affirmed. PRICE ET AL. v. MAGNOLIA PETROLEUM COMPANY ET AL. ERROR TO THE SUPREME COURT OF THE STATE OF OKLAHOMA. No. 14. Argued November 13, 14, 1923.—Decided March. 2, 1925. The Oklahoma Enabling Act provided that sections 33 of the public lands, theretofore reserved, should be apportioned and disposed of as the legislature might prescribe; that, where any of the lands granted the State were valuable for minerals, they should not be sold before January 1, 1915, but might be leased for periods not exceeding five years on royalties, providing that agricultural lessees in possession should be reimbursed by the mining lessees for damages done their interests by mining operations; that the lands “ if sold ” might be appraised and sold at public sale, under such regulations as the State might prescribe, the preference right to purchase at the highest bid being given the lessee “ at time of such sale ”—Held, that an agricultural lessee was not entitled under the act to compel a sale of the land covered by his lease in order that he might purchase it; and that the State was authorized, finding the tract valuable for oil and gas, to execute an oil and gas lease to other parties, subject to the surface rights of the agricultural lessee. Act of June 16, 1906, §§ 8, 10, c. 3335, 34 Stat. 267. P. 421. x86 Okla. 105, affirmed. 416 OCTOBER TERM, 1924. Opinion of the Court. 267 IT. S. Error to a judgment of the Supreme Court of Oklahoma reversing a decree in favor of the plaintiffs in error, Price and wife, in a suit brought by the Petroleum Company to enjoin them from interfering with its operations under an oil and gas lease on land covered by a prior agricultural lease to Price. The State intervened to assert its ownership of the land and uphold the oil and gas lease. Mr. E. E. Blake, with whom Messrs. J. F. Sharp, C. B. Stuart, M. K. Cruce, and W. C. Stevens were on the brief, for plaintiffs in error. Messrs. B. B. Blakeney, George E. Merritt and A. T. Boys, for defendants in error. Messrs. George F. Short, Attorney General of the State of Oklahoma, C. W. King, Assistant Attorney General, W. H. Francis and Herbert Ambrister were also on the brief. Mr. Justice Sanford delivered the opinion of the Court. The subject matter of this controversy is a tract of land held by the State of Oklahoma as part of its public land, on which it made two leases: the first an agricultural lease to William T. Price; the second an oil and gas lease to the Magnolia Petroleum Co. The Magnolia Company brought a suit in equity in a district court of the State to enjoin Price and wife from interfering with its operations under the oil and gas lease. They made defense, alleging that the oil and gas lease was invalid and impaired their preference right under the agricultural lease to purchase the entire tract, including the oil and gas therein. The State, as intervener, asserted its ownership of the land and the validity of the oil and gas lease. The District Court, on final hearing, entered a decree in favor of Price and wife. This was reversed by the Su- PRICE v. MAGNOLIA PETROLEUM CO. 417 415 Opinion of the Court. preme Court of Oklahoma, which adjudged and decreed that the oil and gas lease to the Magnolia Company was valid, and that Price and wife be perpetually enjoined from interfering with its operations. 86 Okla. 105. The federal questions presented rest, in substance, upon the contention that as applied in this case the Oklahoma acts under which the gas and oil lease to the Magnolia Company was executed, deprived Price, as the agricultural lessee, of a preference right to purchase the land in its entirety, vested in him by the Oklahoma Enabling Act of 1906. The tract in controversy is a quarter of a section numbered 33 lying within the lands formerly included in the Territory of Oklahoma that were opened to settlement by an Act of June 6, 1900? This Act provided that sections 13 and 33 in each township should not be subject to entry, but should be “ reserved ” for “ university, agricultural colleges, normal schools and public buildings of the Territory and future State of Oklahoma.” Prior to statehood the Territorial Leasing Board made short term agricultural leases on these reserved lands, with preference rights of re-leasing.2 The Enabling Act of June 16, 1906,3 by § 7 and § 8, granted to the State, upon its admission, sections 13, 16 and 36 in the several townships of the Territory of Oklahoma, for the use and benefit of universities, colleges and schools, as therein specified. By § 8 it was provided that sections 33 theretofore reserved for charitable and penal institutions and public buildings, should “ be apportioned and disposed of as the legislature of said State may prescribe”; and, further, that “ Where any ... of the lands granted by this Act to the State . . . are valuable for minerals,” 131 Stat. 672, c. 813, § 6. 2 Act of May 4, 1894, c. 68, 28 Stat. 71. 8 34 Stat. 267, c. 3335. 42684°—25-------27 418 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. including gas and oil, they should not bo sold by the State before January 1, 1915, but might be leased for periods not exceeding five years, at a fixed royalty in addition to any bonus offered, “ Provided, however, That agricultural lessees in possession of such lands shall be reimbursed by the mining lessees for all damage done to said agricultural lessees’ interest therein by reason of such mining operations.” By § 10 it was provided that “said sections thirteen and thirty-three, aforesaid, if sold, may be appraised and sold at public sale . . . under such rules and regulations as the legislature of said State may prescribe, preference right to purchase at the highest bid being given to the lessee at the time of such sale, but such lands, may be leased for periods of not more than five years . . . : Provided, That before any of the said lands shall be sold . . . the said lands and the improvements thereon shall be appraised by three disinterested appraisers . . . and in case the leaseholder does not become the purchaser, the purchaser at said sale shall . . . pay to . . . the leaseholder the appraised value of said improvements, and to the State the amount bid for the said lands, exclusive of the appraised value of improvements.” The terms and conditions of the Enabling Act were accepted by the State of Oklahoma by an “ irrevocable ” ordinance. Coyle v. Oklahoma, 221 U. S. 559, 564; Sperry Oil Co. v. Chisholm, 264 U. S. 488, 493. And the State by its constitution accepted all grants of land made by the United States under the Act, “ for the uses and purposes and‘upon the conditions, and under the limitations for which the same are granted.”4 The state constitution placed the sale and rental of the public lands in charge of Commissioners of the Land Office.5 By subsequent acts of the legislature it was'pro- 4Art. XI, § 1. °Art. VI, § 32. PRICE v. MAGNOLIA PETROLEUM CO. 419 415 Opinion of the Court. vided: That the Commissioners should have an appraisal made of all lands granted the State for educational and public building purposes, showing the value of the lands and of the improvements thereon, and the names of the lessees occupying them;6 that when any tract of the public lands was known or deemed by the Commissioners to contain oil or gas or to be valuable for such purposes, they should segregate the oil and gas deposits from the surface use and interest, thereby withdrawing the land from sale until they terminated such segregation, and might separately lease the oil and gas interest therein;7 that the Commissioners should sell certain of the public lands, including sections 33 granted to the State for charitable institutions and penal buildings, at public auction, at which any lessee holding a lease thereon should “ have the preference right to purchase ” at the highest bid;8 and that the reserved lands whose proceeds were to be used for penal, charitable and public buildings, should be leased until sold as provided by law.9 Oklahoma was admitted as a State in November, 1907.10 The quarter section in controversy was not known then or for many years thereafter as oil and gas land. It was then held by one Click under an agricultural lease from the Territorial Leasing Board to January 1, 1908, with “ a preference right ” of re-leasing. This right of re-leasing was not questioned by the State. The lease was extended for two successive years, first under a general statute,11 and then under rules of the 6 Laws, 1907-8, c. 49, art. 2, p. 484. 7 Laws, 1907-8, c. 49, art. 4, p. 490; modified in immaterial respects, by Laws, 1917, c. 253, p. 462. 8 Laws, 1909, c. 28, art. 2, p. 448. 9 Laws, 1909, c. 28, art. 1, p. 440. 10 Proclamation of the President, Nov. 16, 1907, 35 Stat. pt. 2, p. 2160. 11 Laws, 1907-8, c. 49, art. 2, p. 484. 420 * OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. Commissioners. In January, 1909, the land and the improvements thereon were appraised. In October, Price purchased the interest of the lessee. After January 1, 1910, he continued to occupy the land and pay rentals thereon to the Commissioners, and was recognized by them as the lessee. In 1911, the Commissioners, after advertisement, sold at public sale the three other quarters of the same section 33, and other public lands in the vicinity. There is evidence that Price appeared at this sale and requested the officers in charge to sell his quarter section also, and that this was refused, the reason given being that it had not been advertised. There is no evidence that he thereafter requested, at any time, that a sale be made of this quarter section. In 1913, the Commissioners leased Price this quarter section, for agricultural and grazing purposes, until December 31, 1914. The lease recited that it was subject to the right of the State to sell the land at any time and that, upon such sale, Price, as lessee of the land, should be entitled to purchase the same at the highest bid, subject to the conditions provided by law; and also provided that he should have 11 the preference right ” to re-lease the land as provided by the laws of the State. This lease was subsequently extended for one year; and thereafter Price, without any formal extension or renewals of the lease, continued in possession of the premises and paid rentals to the Commissioners, and was in such possession, holding over as the agricultural lessee recognized by the Commissioners at the time this suit was commenced. His status as a lessee has not been questioned in any way, and the case has been tried by all parties on the theory that he has the full rights of an agricultural lessee of the land. In 1915, the Commissioners declared this quarter section valuable for mineral purposes, and adopted a motion segregating the same, and withholding it from sale. And PRICE v. MAGNOLIA PETROLEUM CO. 421 415 Opinion of the Court. in 1919 they executed the oil and gas lease to the Magnolia Company that is now in controversy. The lease contained a provision that the Company should be liable to the surface lessee for all damage accruing to the surface interest. This liability the Company has never disputed. The Supreme Court of Oklahoma held, in substance, that Price had no right either under the Enabling Act or the Oklahoma statutes to require the State to sell the land at any time; and that the action of the Commissioners in withholding the land from sale, segregating the oil and gas, and leasing the same to the Magnolia Company, was in accordance with the provisions of the State statutes, and not in violation of any right vested in Price as an agricultural lessee either under those statutes or under the Enabling Act. The underlying federal question presented is based upon the contention that under the provisions of the Enabling Act, constituting a trust upon which the public lands were granted to the State, Price, as an agricultural lessee, was vested with the preference right to purchase the land as an entirety and to require the State to sell the entire interest in the same, and that the Oklahoma statutes authorizing the segregation of the oil and gas and the execution of a separate lease thereto, as applied in this case, impaired the value of the fee in the land and deprived Price of his preference right to purchase the land as an entirety, in violation of the due process clause of the Fourteenth Amendment. We cannot sustain this contention. By § 8 of the Enabling Act it was provided that sections 33 should be apportioned and disposed of “as the legislature . . . may prescribe ”; and, further, that where any of the lands granted to the State “ are valuable for minerals ” they should not be sold before January 1, 1915, but might be leased upon royalty, provided that the mining lessee 422 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. should reimburse the agricultural lessee for damage done by the mining operation. This authority to make mining leases clearly applied not merely to the land then known to be valuable for minerals but to such as might thereafter be found to be valuable for such purposes; and it did not require the State to sell such lands at any time, but merely prohibited their sale before the date specified. It impliedly authorized the making of mining and agricultural leases upon the same land. Furthermore § 10, by its specific terms, did not require the State to sell sections 33 at any time, but merely provided that “ if sold ” they might be appraised and sold at public sale, under such rules and regulations as the State might prescribe, the preference right to purchase at the highest bid being given to the lessee “ at the time of such sale.” We think it clear that these provisions of the Enabling Act, read together, gave the State entire discretion as to the time of selling these lands and the extent to which they should be sold. They did not require that all or any part of them should be sold, but merely provided that “ if ” the State sold them they must be sold in the manner prescribed, and the preference right of purchase be given the lessee in possession at the time of sale. The State was not bound to sell them at any time, or at all, but might retain them as long as it deemed proper, and make meanwhile such leases as it desired not in conflict with the provisions of the Act. There was no provision in the Act, and none is implied, that the agricultural lessee might require the State to sell the land in its entirety whenever he desired to purchase the same; and nothing that gave him any right to purchase the land in its entirety or that prevented the State from executing oil and gas leases, as well as agricultural leases, whenever it deemed this the most advantageous method of realizing the full value of the lands for the public purposes for which they were granted to it. Plainly it was not in- PEARSON v. UNITED STATES. 423 415 Syllabus. tended that the mere making of an agricultural lease should put the State at the mercy of the lessee, and require a sale of the land before its value had been ascertained or the available revenue derived from it. In short, the preference right of purchase given the lessee by the Act was merely the preference right of purchasing the land in the condition in which it might be when and if the State chose to sell it; and not a right to compel the State to sell it, either in its entirety or otherwise, whenever he wished to buy. It results that the Oklahoma statutes under which, as held by the Supreme Court of the State, the Commissioners were authorized to withhold this quarter section from sale and to execute the oil and gas lease to the Magnolia Company, did not impair any right vested in Price as an agricultural lessee by the provisions of the Enabling Act, or deprive him of any right as such lessee in violation of the Fourteenth Amendment. In so far as the other federal questions presented were in issue under the pleadings or raised in the court below, they are necessarily answered by what we have already said, and need not be considered in detail. They show no error in respect to any federal question. And the judgment is Affirmed. PEARSON ET VIR v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 264. Argued January 28, 1925.—Decided March 2, 1925. Where the Government erected and used buldings on leased land with the oral permission of the lessee, and subsequently removed them, although the lessors contended that the right to do so had expired by the terms of the lease, held; (a) That, in the absence of proof that the Government had knowledge of the terms of the lease or of the lessors’ acquiescence in the user, no relation 424 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. of landlord and tenant existed between the lessors and thè United States under the lease from which an agreement of the latter to pay for the property could be implied. P. 426. (b) The Government having removed the buildings under claim of right, no agreement to pay as for property taken for public use could be implied. P. 427. 58 Ct. Cis. 485, affirmed. Appeal from a judgment of the Court of Claims dismissing the petition on demurrer Mr. George F. Williams, with whom Mr. Henry C. Clark was on the brief, for appellant. Mr. Solicitor General Beck and Mr. Alfred A. Wheat, Special Assistant to the Attorney General, were on the brief for the United States. Mr. Justice Sanford delivered the opinion of the Court. This action was brought under the Tucker Act1 by Margaret W. Pearson and her husband to recover the value of buildings and improvements erected by the War Department on leased premises and removed after the expiration of the lease. The United States demurred to the petition on the ground that it did not state a cause of action within the jurisdiction of the court. The demurrer was sustained, and the petition dismissed. 58 Ct. Cis. 485. The petition shows the following facts: On September 11, 1917, the claimants leased to the Chamber of Commerce of Jacksonville, Florida, a tract of land, to be used solely for federal camp purposes, for the maximum term of three years. The lease provided that all buildings and improvements placed upon the land during said term by the lessee, its successors or assigns, should re- 1 Act of March 3, 1887, 24 Stat. 505, c. 359; Jud. Code, § 145. 423 PEARSON v. UNITED STATES. Opinion of the Court. 425 main “ the exclusive property of the lessee, its successors or assigns,” and might be removed within the period of three months after the expiration of the lease. Shortly after the execution of the lease the Chamber of Commerce agreed “ verbally ” with the War Department that the land might be used and occupied as a portion of a training camp for United States troops; and the claimants acquiesced in and consented to its use and occupancy by the United States under and subject to the terms, conditions and provisions of the lease. The land was thereafter included in Camp Joseph E. Johnston. The War Department erected thereon a base hospital, homes for nurses and other buildings, and placed extensive improvements thereon. By a general provision in an Act of March 3, 1919,2 this and other Camp hospitals were “ permanently transferred to the Treasury Department for the use of the Public Health Service,” with so much of their equipment, sites and leases, and such other buildings and land as might be required. The lease to the Chamber of Commerce expired on September 11, 1920. On December 9, 1920, the plaintiff’s attorney wrote the Commanding Officer of Camp Johnston that by the terms of the lease all right of occupation and of entry and removal of buildings would cease on December 11, and that on that date the property should be finally surrendered to the plaintiffs without further removal or molestation of any of the property remaining thereon; and suggesting a conference in reference to the matter. The Commanding Officer replied to him that the hospital had been transferred to the Public Health Service, to which his letter had been referred, and with which the matter should be taken up. After some fur--ther correspondence, the Surgeon General of the Public Health Service, on March 28, 1921, wrote the claimants’ 2 40 Stat. 1302, c. 98, § 2. ' 426 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. attorney, describing the land as the Pearson Tract “ occupied by the United States,” and stating that: “ Owing to the necessity of salvaging certain materials placed upon the property by the Government and now needed elsewhere for hospital purposes, the use of the premises will be required until about May 1, 1921.” On April 6 the claimants’ attorney replied reiterating the claim that under the terms of the lease all buildings, etc., were then part of the property and legally were no longer subject to removal; and suggesting a conference and proper adjustment of the matter. Without replying to this letter the Public Health Service continued to tear down and remove all the buildings and improvements that had been placed upon the land, and completed such removal by the end of June, 1921. The petition alleges that the value of the buildings and improvements thus removed exceeds $100,000, and prays judgment against the United States for the full value of the property “ removed as aforesaid from said lands in violation of the rights of petitioners.” 1. The petition does not allege any contract by the United States, either express or implied in fact, to pay the claimants the value of the buildings and improvements removed by it. Nor does it set forth facts on which such a contract will be implied. It does not appear from the petition that the United States stood in any contractual relation with the claimants, as an assignee of the lease or otherwise. On the contrary it appears that it merely used the land under the oral permission of the Chamber of Commerce. And while the claimants allege, in general terms, that they acquiesced in and consented to such use and occupancy subject to the terms of the lease, it is not shown that the War Department either knew this fact or had any knowledge of the terms of the lease. Therefore, whatever may be the construction and effect of the lease as to the right of LANCASTER v. McCARTY. 427 423 Syllabus. removing buildings and improvements, or the implied obligation of the lessee or its assigns in regard thereto, the petition fails to show that as between the claimants and the United States there existed any relationship of landlord and tenant under the lease from which an agreement to pay for the property can be implied. 2. The petition shows no ground of recovery on an implied agreement upon the part of the Government to pay the claimants for property taken for public use. No recognition of the plaintiffs’ title is alleged in the petition. On the contrary the facts shown plainly indicate that the buildings and improvements were removed by the Government as its own property under the claim of * right. Under these circumstances no agreement to pay for them can be implied. Whether the Government’s claim was well or ill founded, is immaterial. If it was unfounded, and the claimants’ property rights violated, the cause of action therefor would be one sounding in tort, for which the Tucker Act affords no remedy. Klebe v. United States, 263 U. S. 188,191, and cases cited. The demurrer was rightly sustained, and the judgment is Affirmed. | ----------------- • I LANCASTER ET AL., RECEIVERS OF THE TEXAS & PACIFIC RAILWAY, v. McCARTY ET AL. ERROR TO THE COURT OF CIVIL APPEALS FOR THE SECOND SUPREME JUDICIAL DISTRICT OF THE STATE OF TEXAS. No. 148. Submitted December 11, 1924.—Decided March 9, 1925. The second Cummins Amendment, (August 9, 1916, c. 301, 39 Stat. 441,) authorizing carriers to limit liability upon property received for transportation to the value declared in writing by the shipper, where the rates are based on such value pursuant to authority from the Interstate Commerce Commission,—held applicable, and controlling the state law, in respect of a claim for damage to goods 428 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. shipped intrastate between two points in Texas subject to tariff and classification adopted by the carrier pursuant to an order of the Commission requiring the carrier to remove discrimination against interstate commerce resulting from lower intrastate rates. Shreveport Case, 234 U. S. 342. P. 430. 248 S. W. 816, reversed. Error to a judgment of the Court of Civil Appeals of Texas sustaining a recovery from the receivers of the Railway for damages to goods shipped. Mr. T. D. Gresham and Mr. F. H. Prendergast for plaintiffs in error, submitted. No brief filed for the defendants in error. Mr. Chief Justice Taft delivered the opinion of the Court. This was a suit for damages in* the County Court of Eastland County, Texas, by the defendants in error, partners as the Cisco Furniture Company, to recover from the plaintiffs in error, the Receivers of the Texas & Pacific Railway, $198 for injury to two rugs and to three chairs shipped by the Furniture Company from Fort Worth, Texas, over the Railway to Cisco, Texas, and $20 for attorney’s fees exacted by a state statute for the delay of the Railway in allowing and paying the claim. The real issue here is whether the amount of the damages for the admitted injury should be measured by the statutory law of Texas or by the regulations of the Interstate Commerce Commission with respect to the classification of traffic and fixing of rates, as directed by it in accordance with the decree by the Commerce Court of the United States, affirmed by this Court in Houston & Texas Railway Co. v. United States, 234 U. S. 342, known as the Shreveport Case. The damage to the chairs is not involved. The question arises only as to the two rugs. The transporta- LANCASTER v. McCARTY. 429 427 Opinion of the Court. tion began at Fort Worth, Texas, and ended at Cisco, Texas. It was carried on under a bill of lading according to the forms of the Interstate Commerce Commission, which provided that the rates should be 70 cents per 100 pounds on rugs classified as not exceeding in value $75. The bill of lading was stamped with the following notation: “Valuation on rugs less than $75 per 100 pounds.” The rugs in the transit were much damaged by acid and were said to be worth but $5 apiece after the damage. The shippers claim that their value when shipped was $95 apiece. Under the valuation noted on the bill of lading, their value could not have exceeded $60 because each rug weighed 40 pounds. The Texas Court of Civil Appeals, which was the highest court to which the case could be brought (because the Supreme Court of Texas held that it had no jurisdiction), relied upon Article 708 of the Revised Statutes of Texas, which provides that railroad companies within the State shall not limit or restrict their liability, as it existed at common law, by any general or special notice, or by inserting exceptions in the bill of lading, or by memorandum given upon the receipt of the goods for transportation, or in any other manner, and that any such special agreement shall be invalid. These rugs were shipped March 13,1920, after the second Cummins Amendment to the Interstate Commerce Act (August 9, 1916, 39 Stat. 441, c. 301), which permits to carriers a limitation of liability upon property received for transportation concerning which the carrier shall have been authorized by order of the Interstate Commerce Commission to establish and maintain rates dependent upon the value declared in writing by the shipper, or agreed upon in writing as the release value of the property. In such a case, such declaration or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released. 430 OCTOBER TERM, 1924. Opinion of the Court. 267 U.S. The writ of error is brought here under § 237 of the Judicial Code, on the ground that this order of the Interstate Commerce Commission fixing the classification and rates thereunder is an authority exercised under the United States which by the contention of the shippers was drawn in question, and its validity denied by the state court. Champion Lumber Company v. Fisher, 227 U. S. 445, 451. It is not disputed, therefore, that, if the order of the Interstate Commerce Commission and the Western Classification No. 56 apply, the judgment of the Court of Civil Appeals of Texas should be reversed; if Article 708 R. S. of Texas applies, the judgment should be affirmed. The Shreveport Case began by an application of railway carriers running west from Shreveport across the Texas State line to Houston and Dallas, to set aside an order of the Interstate Commerce Commission, on the ground that it exceeded its authority. The order was made in a proceeding initiated by the Railroad Commission of Louisiana before the Commission. The complaint in that proceeding was that the carriers maintained unreasonable rates from Shreveport, Louisiana, to various points in Texas, and that the carriers, in the adjustment of their rates over their respective lines, discriminated in favor of traffic within the State of Texas and against similar traffic between Shreveport and Texas points; that Shreveport competed in business with Houston and Dallas, and that the rates from Dallas and Houston east to intermediate points in Texas were much less, according to distance, than from Shreveport westward to the same points, with conditions similar in all respects. The difference was substantial, and injuriously affected the commerce of Shreveport. The Commission found that interstate rates out of Shreveport to main Texas points were unreasonable, and it fixed maximum rates for that traffic. It also found that the rates from Houston and Dallas 427 LANCASTER v. McCARTY. Opinion of the Court. 431 eastward to Texas points were so low as to be a discrimination and an undue and unlawful preference against Shreveport and against its interstate commerce. Accordingly, the carriers were directed to desist from charging higher rates from Shreveport to Dallas and Houston, respectively, and intermediate pointSj than were contemporaneously charged for the same carriage from Dallas and Houston to Shreveport for equal distances. The Commerce Court sustained the order, and so did this Court, leaving it to the Railroad Company to bring about the equality required either by decreasing the rates from Shreveport to the Texas points between that city and Dallas and Houston, or by increasing the intrastate rates from Houston and Dallas eastward to the Texas points between those cities and Shreveport. This Western Classification, which the carrier applied in this case, was adopted by the railroads under the authority of the Interstate Commerce Commission thus sustained in the Shreveport Case. That authority rested on the supremacy of federal authority in respect to interstate commerce. The intrastate rates fixed by the Texas State Railway Commission from Houston and Dallas eastward to Texas points were a discrimination against the interstate traffic between Shreveport and those same points; and, therefore, it was held to be within the power of the Interstate Commerce Commission, in preventing such unlawful discrimination under the Interstate Commerce Act, to direct the railways to ignore the Texas Commission rates and to establish rates, not unduly discriminating against interstate commerce, in intrastate traffic. Such an order, of course, included classification as well as rates. The two are so bound together in the regulation of interstate commerce that the effect of both must be reasonable and without undue discrimination. The Interstate Commerce Commission, therefore, had full authority to issue this order for the adoption of the Western Classification 432 OCTOBER TERM, 1924. Syllabus. 267 U.S. for intrastate points between Houston and Cisco, both in Texas. The conflict between the Revised Statutes of Texas and the order of the Interstate Commerce Commission can only be settled by recognition of the supremacy of the federal authority. It is plain from the agreed statements of facts that the only recovery which could be had under the Western Classification in this case was less than $60. The limitation of liability was in accordance with the second Cummins Amendment, was properly agreed to, and was binding upon the shipper as well as the carrier. The judgment of the Court of Civil Appeals must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed. BROOKS v. UNITED STATES. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH DAKOTA. No. 286. Argued January 30, 1925.—Decided March 9, 1925. 1. The Act punishing the transportation of stolen motor vehicles in interstate or foreign commerce is within the power of Congress. P. 436. 2. The third section of this act punishes anyone who transports or causes to be transported, in interstate or foreign commerce, a motor vehicle, knowing it to have been stolen, and the fourth section punishes the acts of receiving, storing, concealing, disposing of, etc., “ any motor vehicle, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen.” Held, that § 4 is constitutional, since its purpose is merely to make more effective the regulation of § 3 and it applies only where the act of storing, concealing, etc., is a final step in the use of interstate (or foreign) transportation to promote the scheme of unlawfully disposing of the stolen vehicle and of withholding it from its owner. P. 439. 3. When the constitutional question upon which a writ of error from this court to the District Court was founded is decided against 432 BROOKS v. UNITED STATES. Argument for Plaintiff in Error. 433 the plaintiff in error, non-federal questions arising in the record must also be decided. P. 439. 4. In an indictment charging that defendant, knowingly, unlawfully and feloniously transported and caused to be transported in interstate commerce, between places designated, a touring automobile, (stating its value) the property of A, which said automobile theretofore (stating a time) had been stolen from A, and that the defendant did not have A’s consent to transport it between the places named, “ all of which he,” the defendant, “ then and there well knew,” the concluding allegation of scienter is to be applied to the whole narrative preceding; so that the charge that defendant knew, when he transported it, that the automobile was stolen, is sufficiently definite. P. 439. 5. Where a defendant is convicted, by a general verdict, upon several counts of an indictment, and is given the same term of imprisonment under each count, to run concurrently, error in the court’s charge, applicable to only one of the counts, is not ground for reversing sentence on the others. P. 440.. Affirmed. Error to judgment and sentence imposed by the District Court for violation of the “ National Motor Vehicle Theft Act.” Mr. Joe Kirby for plaintiff in error. The indictments fail to inform the accused of the nature and cause of the accusation, under Article 6, and seek to deprive him of his liberty without due process of law contrary to Article 5, of the Bill of Rights. The first counts charge Brooks with knowingly transporting the vehicle and not with transporting a vehicle known by him to have been stolen. Probably nothing is more elementary in criminal law than that the charge in the indictment must be positive, direct, certain and specific, must cover every act necessary to constitute the crime sought to be charged and that nothing can be added by inference or intendment and meet the constitutional requirements. In other words, there must be an accusation, not a dragnet. 1 Chitty C. L. Page 171; 1 Bish. N. C. P. §§ 508-520; 1 Wharton C. P. (Kerr) 42684°—25---------28 434 OCTOBER TERM, 1924. Argument for Plaintiff in Error. 267 U. S. § 194. The same criticism applies to the second count. This guilty knowledge must have been in the mind of the defendant under the first count at the time he transported the car and under the second count at the time he stored or concealed it. It should have been, but has not been, alleged in the indictment. Peterson n. United States, 213 Fed. 920; Fredericks v. Tracy, 33 Pac. (Calif.) 750; Sir Nicholas Pointz, Cro. Jac. 214; United States v. De Barre, 6 Biss. 358; 2 Bishop N. C. L. § 1140; Foster v. State, 106 Ind. 272. . The National Motor Vehicle Theft Act is not authorized under the commerce clause of the Constitution and is in conflict with Art. 10 of the Constitution. Dobbins v. Comm’rs., 16 Pet. 435 Burlington v. Day, 11 Wall. 113. The Act in question does not regulate interstate commerce. Bailey v. Drexel Furniture Co., 259 U. S. 20; Hammer v. Dagenhart, 247 U. S. 251. When this Court upheld the constitutionality of the White Slave Law, Hoke v. United States, 227 U. S. 308; the Pure Food and Drug Act, Hipolite Egg Co. v. United States, 220 U. S. 45; and the Anti-Lottery Act, Champion y. Ames, 188 U. S. 321, it went to the very extreme limit. Even if Congress possessed the power to enact § 3 of the act in question, still there must be some point in the procedure where this interstate control will cease, where the State can again assume jurisdiction over the vehicle. In interstate commerce this has been, we believe, always determined by the article reaching its primary destination. In the present case, the destination in the movement of the cars was the defendant’s garage in Sioux Falls. Whatever was done with the cars after they reached their destination in interstate movement would be clearly beyond the federal jurisdiction and a question solely for the state courts. In fact we think a careful reading of § 4 will disclose that such was the purpose of Congress. By the act of June 3, 1902, 32 Stat. 285, Congress sought to assume jurisdiction over migratory and 432 BROOKS v. UNITED STATES. Opinion of the Court. 435 insectivorous birds. In United States v. McCullagh, 221 Fed., 288, the District Court held the act unconstitutional, pointing out that the power to pass such an enactment was not conferred either by the general welfare clause or by the interstate commerce clause. The same view was strongly expressed in State N. Sawyer, 113 Me. 458. The court below also erred in excluding the wife of the defendant, when called asi a witness for the purpose of contradicting and impeaching the testimony of the government witnesses, whose statements were given in her presence. Johnson v. United States, 293 Fed. 383; Jin Fuey Moy n. United States, 254 U. S. 189; Rosen v. United States, 245 U. S. 467; United States n. Reid, 12 How. 361; Logan v. United States, 144 U. S. 263; Benson v. United States, 146 U. S. 325; Adams v. United States, 259 Fed. 214; Wigmore on Evidence § 601. Mr. Assistant Attorney General Donovan, with whom Mr. Solicitor General Beck and Mr. Harry S. Ridgely were on the brief, for the United States. Mr. Chief Justice Taft delivered the opinion of the Court. This is a writ of error to the District Court for the District of South Dakota brought by Rae Brooks to reverse a judgment against him of conviction under two indictments for violation of the Act of Congress, of October, 1919, known as the National Motor Vehicle Theft Act. The writ of error issued under § 238 of the Judicial Code, because the case involves the construction or application of the Constitution, in that the chief assignment of error is the invalidity of the Act. The Act became effective October 29, 1919 (41 Stat. 324), and is as follows: 11 Chap. 89.—An Act to punish the transportation of stolen motor vehicles in interstate or foreign commerce. 436 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. “ Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the National Motor Vehicle Theft Act. 1 1 Sec. 2. That when used in this Act: “(a) The term ‘motor vehicle’ shall include an automobile, automobile truck, automobile wagon, motorcycle, or any other self-propelled vehicle not designed for running on rails; “(b) The term ‘ interstate or foreign commerce ’, as used in this Act shall include transportation from one State, Territory, or the District of Columbia, to another State, Territory, or the District of Columbia, or to a foreign country, or from a foreign country to any State, Territory, or the District of Columbia. “Sec. 3. That whoever shall transport or cause to be transported in interstate or foreign commerce a motor vehicle, knowing the same to have been stolen, shall be punished by a fine of not more than $5,000, or by imprisonment of not more than five years, or both. “ Sec. 4. That whoever shall receive, conceal, store, barter, sell, or dispose of any motor vehicle, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be punished by a fine of not more than $5,000, or by imprisonment of not more than five years, or both. “ Sec. 5. That any person violating this Act may be punished in any district in or through which such motor vehicle has been transported or removed by such offender.” The objection to the Act can not be sustained. Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty or the spread of any evil or harm to the people of other States from the State of origin. In doing this it is merely exercising the police power, for the benefit of the public, 432 BROOKS v. UNITED STATES. Opinion of the Court. 437 within the field of interstate commerce. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 215. In Reid v. Colorado, 187 U. S. 137, it was held that Congress could pass a law excluding diseased stock from interstate commerce in order to prevent its use in such a way as thereby to injure the stock of other States. In the Lottery Case, 188 U. S. 321, it was held that Congress might pass a law punishing the transmission of lottery tickets from one State to another, in order to prevent the carriage of those tickets to be sold in other States and thus demoralize, through a spread of the gambling habit, individuals who were likely to purchase. In Hipo-polite Egg Co. v. United States, 220 U. S. 45, it was held that it was within the regulatory power of Congress to punish the transportation in interstate commerce of adulterated articles which, if sold in other States than the one from which they were transported, would deceive or injure persons who purchased such articles. In Hoke v. United States, 227 U. S. 308 and Camin etti v. United States, 242 U. S. 470, the so-called White Slave Traffic Act, which was construed to punish any person engaged ip enticing a woman from one State to another for immoral ends, whether for commercial purposes or otherwise, was valid because it was intended to prevent the use of interstate commerce to facilitate prostitution or concubinage, and other forms of immorality. In Clark Distilling Co. v. Western Maryland Railway Co., 242 U. S. 311, it was held that Congress had power to forbid the introduction of intoxicating liquors into any State in which their use was prohibited, in order to prevent the use of interstate commerce to promote that which was illegal in the State. In Weber v. Freed, 239 U. S. 325, it was held that Congress had power to prohibit the importation of pictorial representations of prize fights designed for public exhibition, because of the demoralizing effect of such exhibitions in the State of destination. 438 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. In Hammer v. Dagenhart, 247 U. S. 251, it was held that a federal law forbidding the transportation of articles manufactured by child labor in one State to another was invalid, because it was really not a regulation of interstate commerce but a congressional attempt to regulate labor in the State of origin, by an embargo on its external trade. Articles made by child labor and transported into other States were harmless, and could be properly transported without in jurying any person who either bought or used them. In referring to the cases already cited, upon which the argument for the validity of the Child Labor Act was based,, -this Court pointed out that, in each of them, the use of interstate commerce had contributed to the accomplishment of harmful results to people of other States, and that the congressional power over interstate transportation in such cases could only be effectively exercised by prohibiting it. The clear distinction between authorities first cited and the Child Labor Case leaves no doubt where the right lies in this case. It is known of all men that the radical change in transportation of persons and goods effected by the introduction of the automobile, « the speed with which it moves, and the ease with which J evil-minded persons can avoid capture, have greatly en- > couraged and increased crimes. One of the crimes which have been encouraged is the theft of the automobiles themselves and their immediate transportation to places remote from homes of the owners. Elaborately organized conspiracies for the theft of automobiles and the spiriting them away into some other State, and their sale or other disposition far away from the owner and his neighborhood, have roused Congress to devise some method for defeating the success of these widely spread schemes of larceny. The quick passage of the machines into another State helps to conceal the trail of the thieves, gets the stolen property into another police jurisdiction 432 BROOKS v. UNITED STATES. Opinion of the Court. 439 and facilitates the finding of a safer place in which to dispose of the booty at a good price. This is a gross misuse of interstate commerce. Congress may properly punish such interstate transportation by any one with knowledge of the theft, because of its harmful result and its defeat of the. property rights of those whose machines against their will are taken into other jurisdictions. The fourth section merely makes* more effective the regulation contained in the third section. The third section punishes the transportation of a stolen automobile with knowledge of the theft. The fourth section punishes the receipt, the concealment, the storing, the bartering, the sale, or the disposition of such stolen vehicle, moving as interstate commerce, or as a part thereof, with knowledge of its having been stolen. Of course, this section can and does apply only to the storing or concealment of a stolen automobile with knowledge of its theft, as a final step in the use of interstate transportation to promote the scheme of its unlawful disposition and the withholding of it from its owner. For these reasons, we think that § § 3 and 4 are withjn the power of Congress. The constitutional question brought this case directly to this Court. Being here, the other questions arising on the record must be decided. Pierce n. United States, 252 U. S. 239; Brolan v. United States, 236 U. S. 216. It is objected that the counts of the indictments failed to inform the defendant of the nature and cause of the accusation. There were two indictments with two counts each. One charged violation of § 3 in the first count and of § 4 in the second count, as tO’ one automobile. The second indictment made the same charges as to a second automobile. The charge in one, under § 3, was that defendant “knowingly, unlawfully and feloniously did transport and cause to be transported in 440 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. interstate commerce” from Sioux City, Iowa, to Sioux Falls, South Dakota, a touring automobile, describing it as of $1,000 value, the property of and belonging to one W. C. Wendt of Omaha, Nebraska, which said automobile theretofore, on September 7th, A. D. 1921, had been stolen from Wendt, and that the defendant did not have the consent of the owner to transport it from Sioux City to Sioux Falls, “ all of which he, the said Rae Brooks, then and there well knew.” The argument is that this does not sufficiently charge that the defendant knew that the automobile was stolen when he transported it. We think it does; that it is a reasonable construction to hold that the last words refer to the whole previous narration. The third objection is that there is no evidence of the defendant’s guilt, and that the jury should have been so advised. We have read the evidence and read the charge of the court. The charge of the court submitted the issues properly to the jury except possibly in one respect, to which we shall refer. It appeared that Brooks, the defendant, owned a garage in Sioux Falls, South Dakota, and that he went to Sioux City, Iowa, and obtained these two automobiles, which had been stolen, and transferred them to Sioux Falls. We can not say that the circumstances were not such that a jury might properly infer that the defendant knew that they were stolen and had acquired them and transported them to South Dakota for the purpose of profiting by the transaction in stolen goods. It is said that there was no evidence after the cars were stored in Sioux Falls that the defendant made any effort to secrete, conceal or store them with guilty knowledge. It is not necessary for us to examine into this question or another mooted by the defendant’s counsel. He contends that under the charge of the court the jury might have been led to convict the defendant on the second count in each indict- BROOKS v. UNITED STATES. 441 432 Opinion of the Court. ment, on the theory that he became aware of the stolen character of the cars only after he reached Sioux Falls, and stored them after he became aware of their stolen character in Sioux Falls. This, he says, was an erroneous application of the 4th section, because, if his connection with the transportation was innocent, his subsequent criminal concealment of the stolen property would be disconnected with interstate commerce and be only a crime against the State. We do not think it necessary to pass on this question, for the reason that the verdict of the jury was general, that the defendant was found guilty on both the counts of each of the two indictments and that the defendant was sentenced to eighteen months on each indictment and each count, the sentences to run concurrently. As the convictions can be sustained on the first count in each indictment under the verdict, there is no ground for reversing the case because of error in charging as to the second count. Claassen v. United States, 142 U. S. 140, 146; Evans v. United States, 153 U. S. 608, 609; Abrams v. United States, 250 U. S. 616, 619; Pierce v. United States, 252 U. S. 239, 252. There are some objections made to the form of some questions put by the District Attorney. We do not think they are shown to have been sufficiently prejudicial to justify a new trial. The judgment of the District Court is Affirmed. 442 OCTOBER TERM, 1924. Argument for Plaintiff in Error. 267 U. S. BARCLAY & COMPANY, INCORPORATED v. EDWARDS, COLLECTOR OF 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. No. 547. Argued November 24, 1924.—Decided Dec. 15, 1924. 1. The taxation by Congress of the income of domestic corporations derived from sale abroad of goods bought or made by them in this country is not a tax on exports; nor does it violate due process of law because a like tax is not imposed on the income similarly derived by foreign corporations. National Paper Co. v. Bowers, 266 U. S. 373. P. 447. 2. The exemption of foreign corporations is equally valid whether complete or only partial. Revenue Acts of 1918 and 1921 considered. P. 448. 3. The power of Congress in laying taxes is very wide; and the Fifth Amendment does not apply to discrimination between taxpayers based on a classification that is not arbitrary and capricious, but reasonable. P. 450. Error to a judgment of the District Court dismissing an action to recover money paid under protest as a federal income tax. The case here (547) was first decided on December 15, 1924, upon authority of National Paper & Type Co. v. Bowers, No. 320, decided on the same day and reported in 266 U. S. 373. Due to a motion for rehearing, the opinion was withheld from publication. It is now printed, following the opinion overruling the motion. Mr. P. J. McCumber, with whom Mr. Franklin Grady and Mr. Homer Sullivan were on the briefs, for plaintiff in error. The assessment and collection of the alleged tax was not the exertion of the power of taxation but a confiscation 442 BARCLAY & CO. v. EDWARDS. Argument for Plaintiff in Error. 443 of property, in violation of the Fifth Amendment. See 32 Op. A. G. 336; Sullen v. Attorney General, 5 H. & N. 711; State ex rel. Manitowoc Gas Co. v. Wisconsin Tax Comm., 161 Wis. Ill; St. Clair v. Cox, 106 U. S. 350; Zambrino n. Galveston Ry., 38 Fed. 449; De Beers v. Howe, 5 B. T. C. 198; Goerz v. Bell, 2 K. B. 136; Corpus Juris, Vol. 14A, § 3945. Congress recognizes that foreign corporations transacting business within the United States, are resident in the United States, by referring in par. 1 of § 217 (a) of the Revenue Act of 1921 (42 Stat, c. 136) to such foreign corporations as “ resident foreign corporations.” Treaty rights have been granted under which foreign corporations carry on business in the United States. Income from the business of manufacturing goods in one jurisdiction and selling them in another is taxable at the place of manufacture, Underwood Typewriter Co. n. Chamberlain, 254 U. S. 113; Shaffer v. Carter, 252 U. S. 37. The income of foreign corporations, from goods manufactured by them within the United States and exported and disposed of or sold in foreign countries, was earned within the United States. It is clearly established that discrimination in taxation which is made to depend on nationality oi allegiance, is arbitrary, oppressive or capricious, and hence in violation of the “due process of law” provision of the Fifth Amendment: See Cooley on Taxation, (3d & 4th eds. p. 23); Cooley’s Const. Limit’s, pp. 707, 708 and 723; Dent v. West Virginia, 129 U. S. 114; Am. Sugar Ref. Co. v. Louisiana, 179 U. S. 91; Lappin n. District of Columbia, 22 App. D. C. 68; Yick Wo v. Hopkins, 118 U. S. 356; Brushaber v. Union Pacific R. R. Co., 240 U. S. 1. It is submitted that it would be impossible to draft a law taxing income which would be more “ wanting in basis for classification ” or wherein any more “gross and patent inequality” in taxation would result 444 OCTOBER TERM, 1924. Argument for Plaintiff in Error. 267 U. S. than that which is complained of here. Compared with the competing foreign corporations the occupation is the same, the circumstances and conditions under which this competition is carried on are identical; and hence it would be impossible to discriminate against the plaintiff in error in this case without basing the classification on nationality or allegiance, or something equally arbitrary and capricious, which is precisely what this Court has said Congress cannot do without thereby taking property contrary to due process of law. The fundamental principle is equality in application of the law. Truax v. Corrigan, 267 U. S. 334; Hurtado v. People of California, 110 U. S. 516; Smyth v. Ames, 169 U. S. 466; Hayes v. Missouri, 120 U. S. 68. The due process of law principle applies to income taxes with respect to a situation like that of the plaintiff in error. Shaffer v. Carter, 252 U. S. 37, 54, holds in effect that the due process clause of the Fifth Amendment restricts Congress to the condition that taxes on income derived from the business of manufacturing for export and exporting, in order to be valid, must be imposed equally on all persons under like circumstances and conditions. That the tax discrimination against plaintiff in error violates due process of law, see Raymond v. Chic. Union Tract. Co. 207 U. S. 20; Truax v. Raich 239 U. S. 33. It cannot be seriously suggested that a discrimination which violates this clause when it is directed against the alien does not violate the clause when directed against the citizen. To so contend would be equivalent to asserting that .Congress has power to force American citizens to expatriate themselves in order to “ obtain support in the ordinary fields of labor ” or to protect their property in the United States from injury or confiscation. See Slaughter House Cases, 111 U. S. 746, 757; Soon Hing v. Crowley, 113 U. S. 703, 709; Heisler v. Thomas Colliery Co. 260 U. S. 245, 255; Sou. Ry. Co. v. Greene, 216 U. S. 442 BARCLAY & CO. v. EDWARDS. Argument for Plaintiff in Error. 445 400, 418; Flint v. Stone Tracy Co. 220 U. S. 142, 161 ; Western Union Tel. Co. v. Frear, 216 Fed. 199, 202. Peck v. Lowe, 247 U. S. 165, declared that the status of the net income from exporting and selling abroad “ is not different from that of the exported articles prior to the exportation It is evident that if such net income did not have this status, it would necessarily be related to the activities of exporting, and hence to tax it would be in violation of par. 5, of § 9 of Article I of the Constitution. That a tax on such net income, irrespective of whether the goods are sold within or without the State, is like a tax on property in the State, is held by this Court in United States Glue Co. v. Oak Creek, 247 U. S. 321, and in Underwood Typewriter Co. v. Chamberlain, supra; and is confirmed in Shaffer v. Carter, supra. Hence, if Congress is not restrained by the “ due process of law ” clause of the Fifth Amendment from making the discrimination in favor of foreign corporations which is here complained of Congress would not be restrained from making a discrimination exempting foreign corporations from the payment of customs duties on articles imported into the United States while imposing such duties on American corporations; or from making a discrimination exempting foreign corporations from the taxes paid by manufacturers, producers, and importers on domestic sales, while imposing such taxes on sales by American corporations; or from making a discrimination exempting foreign corporations in the business of insurance, or banking, or building, or any other business in the United States, from income or profits tax, or capital stock tax, or any other sort of tax which Congress can impose, while levying such tax upon American corporations engaged in like business. The tax constituted a direct burden on and impediment to plaintiff in error’s business of exporting, in violation of par. 5 of § 9 of Article I of the Constitution. Peck v. 446 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. Lowe, supra. See Darnell & Son v. Memphis, 208 U. S. 113; Woodruff v. Parham, 8 Wall. 123; Brown v. Houston, 114 U. S. 622; United States Glue Co. v. Oak Creek, supra. It is to be noted that the law under which the tax was assessed, known as the Revenue Act of 1918 (40 Stat, c. 18) provided in § 213 (c) that nonresident alien individuals should have the same exemption that was granted to foreign corporations by § 233 (b) of that act with respect to income derived from the business of exporting carried on in the United States. It is well known in commercial circles that there are many firms or partnerships engaged in the exporting business in the United States which are composed of alien individuals, of whom nearly all are nonresident aliens. Mr. Solicitor General Beck, with whom Mr. Nelson T. Hartson and Mr. Robert P. Reeder were on the brief, for defendant in error. Mr. Chief Justice Taft delivered the opinion of the Court. On December 15, 1924, Mr. Justice McKenna delivered the opinion of this Court in the case of the National Paper and Type Company against Frank K. Bowers, Collector, [266 U. S. 373] No. 320 of the present Term. That case was heard at the same time with this. They ’ were suits to recover taxes which it was claimed had been illegally collected, for the reason that the statutes under which they had been exacted deprived the taxpayers of their property without due process of law. The statute attacked in No. 320 was the income tax of 1921, that in this case was the income tax of 1918. The plaintiffs in the two cases were corporations of this country engaged in the business of the purchase and manufacture of personal property within the United States, and the sale thereof without the United 442 BARCLAY & CO. v. EDWARDS. Opinion of the Court. 447 States. Their objection to the taxes, both of 1921 and of 1918, was that they were subjected to a tax on all of their net income, including profits made by them in the sale of their goods abroad, while foreign corporations, engaged in the same business of buying and manufacturing goods in this country and selling them abroad, were not taxed upon their whole net income but were exempted from a tax on all or a part of it. Another objection to the tax was that the tax in both instances was a tax on exports. That was disposed of by this Court in opinion No. 320 by reference to the case of Peck & Company v. Lowe, 247 U. S. 165. The Court further pointed out that, in respect to what was called discrimination in favor of foreign corporations, Congress might adopt a policy calculated to serve the best interests of this country in dealing with citizens or subjects of another country and might properly say, as to earnings from business begun in one country and ending in another, that the net income of foreign subjects or citizens should be left to the taxation of their own government or to that having jurisdiction of the sales; that the question of taxing foreign corporations on such income might properly be affected by the consideration that domestic corporations had the power of the United States to protect their interests and redress their wrongs in whatever part of the world their business might take them, while the foreign corporations must look to the country of their origin for protection against injury or redress of losses occurring in countries other than the United States. Having disposed of No. 320 for these reasons in favor of the Government, by affirming the judgment below, a short opinion was delivered by Mr. Justice McKenna in No. 547, in which he said that the charge of invalidity in that case was on the same grounds as those set up in No. 320; and that, upon authority of the decision in No. 320, the judgment should be affirmed. 448 OCTOBER TERM, 1924. Opinion of the Court. 267 U. 8. A petition for rehearing seeks now to differentiate the present case from that considered and decided in No. 320. The Revenue Act of 1918, 40 Stat. 1076, provided for a tax of 12 per cent, on the net income in excess of certain credits upon domestic corporations, but contained this provision in case of foreign corporations, under § 233 (b): “ In the case of a foreign corporation gross income includes only the gross income from sources within the United States, including the interest on bonds, notes, or other interest-bearing obligations of residents, corporate or otherwise, dividends from resident corporations, and including all amounts received (although paid under a contract for the sale of goods or otherwise) representing profits on the manufacture and disposition of goods within the United States.” (40 Stat. 1077.) The Revenue Act of 1921 taxed the net income (meaning the gross income, less certain deductions) of domestic corporations. 42 Stat. 252, 254. The same section, No. 232, provided that “ In the case of a foreign corporation, the computation should be made in the manner provided in § 217. The relevant parts of §§ 217 and 233 were as follows: “ Sec. 217 (a). That in the case of a non-resident alien individual or of a citizen entitled to the benefits of section 262. . . . “(e) Items of gross income, expenses, losses and deductions, other than those specified in subdivisions (a) and (c), shall be allocated or apportioned to« sources within or without the United States under rules and regulations prescribed by the Commissioner with the approval of the Secretary. . . . Gains, profits and income from (1) transportation or other services rendered partly within and partly without the United States, or (2) from the sale of personal property produced (in whole or in part) by the taxpayer within and sold without the United States, or produced (in whole or in part) by the taxpayer 442 BARCLAY & CO. v. EDWARDS. Opinion of the Court. 449 without and sold within the United States, shall be treated as derived partly from sources within and partly from sources without the United States. Gains, profits and income derived from the purchase of personal property within and its sale without the United States or from the purchase of personal property without and its sale within the United States, shall be treated as derived entirely from the country in which sold. . . . (42 Stat. 243, 244, 245.) 11 Sec. 233. .. . “(b) In the case of a foreign corporation, gross income means only gross income from sources within the United States, determined (except in case of insurance companies subject to the tax imposed by section 243 or 246) in the manner provided in section 217.” (42 Stat. 254.) Counsel contend in their petition for rehearing that the Revenue Act of 1921 provided, with respect to the manufacture within the United States by foreign corporations of goods which they sold in foreign countries, that the income derived should be allocated to sources within the United States, and imposed a tax on that part of such income allocated to manufacture, whereas the Revenue Act of 1918, under which this case arose, exempted from tax all income of foreign corporations derived from the manufacture or purchase of goods within the United States which they sold or disposed of in foreign countries. But we do not think that that distinction makes any difference in the application of the principle upon which the judgment in No. 320 was based. Whatever the difference between the acts, whether the foreign corporations were wholly exempted or only partially exempted, they constituted a class all by themselves and could be properly so treated by Congress because of the considerations suggested in the opinion in No. 320. The attack made upon the law of 1921 for discrimination against American corporations in favor of foreign corporations was quite as 42684°—2'5------29 450 OCTOBER TERM, 1924. Opinion of the Court. 267 U.S. vigorous in the briefs of counsel for the plaintiffs in error in No. 320 as in No. 547, and rested on the same argument; and while the exemption of the net income of foreign corporations from manufacture in United States did not exist in the Act of 1921 as in the Act of 1918, the question of discrimination in the two cases only differed in extent and did not call for any real distinction in deciding them. The question where an income is earned is always a matter of doubt when the business is begun in one country and ended in another. As pointed out by the plaintiff in error in his brief in No. 320, much of the business in such foreign trade in addition to the manufacture is done in the United States in storehouses and docks and in other ways after the manufacture, but whatever of that might be equitably allocated as done in the United States is exempted from taxation of foreign corporations by the Act of 1921. Thus exactly the same question presents itself as in No. 320. It is only a difference in degree. The power of Congress in levying taxes is very wide, and where a classification is made of taxpayers that .is reasonable, and not merely arbitrary and capricious, the Fifth Amendment can not apply. As this Court said, speaking of the taxing power of Congress, in Evans v. Gore, 253 U. S. 245, 256: “ It may be applied to every object within its range ‘ in such measure as Congress may determine ’; enables that body ‘ to select one calling and omit another, to tax one class of property and to forbear to tax another ’; and may be applied in different ways to different objects so long as there is ‘ geographical uniformity ’ in the duties, imposts and excises imposed. McCulloch v. Maryland, 4 Wheat. 316, 431; Pacific Insurance Co. v. Soule, 7 Wall. 433, 443; Austin v. The Aidermen, 7 Wall. 694, 699; Veazie Bank n. Fenno, 8 Wall. 533, 541, 548; Knowlton v. Moore, 178 U. S. 41, 92, 106; Treat y. White, 181 U. S. 264, 268-269; McCray n. United BARCLAY & CO. v. EDWARDS. 451 442 Opinion of the Court. States, 195 U. S. 27, 61; Flint v. Stone Tracy Co., 220 U, S. 107, 158; Billings v. United States, 232 U. S. 261, 282 ; Brushaber v. Union Pacific R. R. Co., 240 U. S. 1, 24-26.” The power of Congress to make a difference between the tax on foreign corporations and that on domestic corporations is not measured by the same rule as that for determining whether taxes imposed by one State upon the profits of a manufacturing corporation are an imposition of tax upon a subject matter not within the jurisdiction of the taxing State. Cases on that subject like Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113, have no application to the question here. Considerations of policy toward foreign countries may very well justify an exemption of the foreign corporations from taxes that might legitimately be imposed on them, but which Congress does not think it wise to exact. Such considerations justify a different classification of foreign corporations doing business in the United States, either of manufacture or of purchase, and making profit out of that business in other countries, from that which would apply to its own corporations. The injustice thought to be worked upon domestic corporations engaged in sales abroad, by a different classification, for purposes of taxation, of foreign corporations similarly engaged, is an argument, not for the constitutional invalidity of the law before a court, but for its repeal before Congress. The opinion of Mr. Justice McKenna applying the same principles in this case to those applied in No. 320 was entirely justified, and the petition for rehearing is Overruled. The original opinion is as follows: Mr. Justice McKenna delivered the opinion of the Court. The plaintiff in error is a domestic corporation engaged in business as a manufacturer. It is subjected to 452 OCTOBER TERM, 1924. Decree. 267 U. S. an income tax from which foreign corporations are exempted. It charges invalidity on the same grounds as those set up in No. 320, [266 U. S. 373,] and brought suit to recover the amount' of the tax. Its complaint was dismissed on motion of the District Attorney upon the authority of National Paper & Type Company v. Edwards, Collector of Internal Revenue, 292 Fed. 633, and judgment went on the merits. The cause was submitted with No. 320, just decided. It presents the same contentions, based upon the same grounds. And upon the authority of our decision in that case, the judgment below is Affirmed. STATE OF OKLAHOMA v. STATE OF TEXAS. UNITED STATES, INTERVENER. IN EQUITY. No. 13, Original. Decree entered March 9, 1925. Decree reciting and confirming the report by commissioners of the survey, location and marking of a part of the boundary between Texas and Oklahoma, along the Fort Augur Area; adjudging that the line shown by the report and maps be established as the true boundary between the two States along the part of Red River so designated, subject to future changes by erosion and accretion; and directing transmission of authenticated copies of the decree and maps to the chief magistrates of the two States. Announced by Mr. Justice Van Devanter:1 On consideration of the report of the commissioners, heretofore selected to run, locate and mark portions of the boundary between the States of Texas and Oklahoma along the south bank of the Red River, showing 1 Other orders in the case of this date will be found among the per curiam decisions, post, pp. 580, 582. 452 OKLAHOMA v. TEXAS. Decree. 453 that they have run, located and marked the portion of such boundary along the Fort Augur Area—such report being as follows: 11 To the Chief Justice and the Associate Justices of the Supreme Court of the United States: “ Continuing our work as commissioners designated in the decree of March 12, 1923 (261 U. S., 340), in the above entitled cause, we have run, located and marked upon the ground the boundary between the States of Texas and Oklahoma along the Red River from the Big Bend Area westward to a southerly extension of the west line of range sixteen west in Oklahoma, in accordance with the decree and the principles announced in the opinion delivered January 15, 1923 (260 U. S., 606), and in the manner stated in our report of April 25, 1924 on the Big Bend Area. We have called this portion of the boundary the ‘ Fort Augur Area.’ “ The maps, which accompany and are made a part of this report, are identified as follows: Map No. 4: Cadastral Map of the Texas and Oklahoma Boundary, Fort Augur Area, scale 2,000 feet to the inch; Map No. 5: Topographic Map of Texas and Oklahoma Boundary, Fort Augur Area, in four sheets, Nos. 1, 2, 3 and 4, scale 500 feet to the inch, contour interval 2 feet; and, a Road Map: Showing location of Reference Monuments, scale one mile to the inch. “ There are no oil wells within three hundred feet of the boundary in the Fort Augur Area. “ The survey of this area was begun June 13, 1923, and completed October 10, 1924, the triangulation being done in 1923 and the other work being done after June 1, 1924. “ The location of the boundary, reported herein, is that position which existed on September 3, 1924. 454 OCTOBER TERM, 1924. Decree. 267 U. S. “ The field notes of the boundary survey and tabulations of technical data follow:2 11 Five copies each of the report and maps have been today sent by registered mail to the Attorney General of the United States, the Attorney General of Texas and the Attorney General of Oklahoma. We have also filed with the clerk of the court fifty copies of the report and maps for the use of such private interveners as may apply for them. Thirty additional copies of the report and maps have been filed with the clerk for such disposition as the court may direct. “ The originals of the three maps hereinbefore named are bound with the original report, and appear in the following order: Road Map showing location of Reference Monuments; Map No. 4; and, Map No. 5, Sheets Nos. 1, 2, 3 and 4. 11 Respectifully submitted, “ARTHUR D. KIDDER, “ARTHUR A. STILES, “ Commissioners. “ Washington, D. C., January 5, 1925.” And no objection or exception to such report being presented, although the time therefor has expired; It is now adjudged, ordered and decreed that the said report be in all respects confirmed. It is further adjudged, ordered and decreed that the line delineated and set forth in the report and on the maps accompanying the same and referred to therein be established and declared to be the true boundary between the States of Texas and Oklahoma along the part of the Red River designated in such report subject however to such changes as may hereafter be wrought by the 2 The field notes and tabulations, covering 30 pages of the report, are here omitted; as are also the maps. Copies of these matters, when desired, may be obtained in the Clerk’s Office; or in the offices of the Chief Executives of the States of Oklahoma and Texas. SANFORD & BROOKS v. UNITED STATES. 455 452 Counsel for Parties. natural and gradual processes known as erosion and accretion as specified in the second, third and fourth paragraphs of the decree rendered herein March 12, 1923, 261 U. S. 340. It is further ordered that the Clerk of this court do transmit to the chief magistrates of the States of Texas and Oklahoma copies of this decree, duly authenticated under the seal of this court, together with copies of the maps which accompanied the report of the commissioners. SANFORD & BROOKS CO. v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 175. Argued January 15, 1925.—Decided March 9, 1925.. 1. Where a Government contract for dredging expressly required prompt, written protest against any order for work outside the specifications, written modification of the contract if altered materially, and written orders for extra work, held that oral protests by the contractor, a claim for additional compensation and a favorable advisory opinion thereon by a government official, were insufficient to establish that these contract provisions were inapplicable or waived, or that a new, oral agreement for compensation quantum meruit was substituted by implication. P. 457. 2. A motion to remand to the Court of Claims for further findings should be submitted at the first term of the entry of the case so that the Court may determine whether the motion shall be passed upon in advance, or postponed until the hearing on the merits. P. 458. 58 Ct. Cis. 158, affirmed. Appeal from a judgment of the Court of Claims rejecting a claim for additional compensation for dredging. Mr. William L. Marbury, with whom Mr. Horace S. Whitman and Mr. Charles Clagett were on the brief, for appellant. 456 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. Mr. Merrill E. Otis, Special Assistant to the Attorney General, with whom Mr. Solicitor General Beck was on the brief, for the United States. Mr. Justice Brandeis delivered the opinion of the Court. Sanford & Brooks Co. agreed with the United States to dredge a channel at a fixed rate per cubic yard of material dredged. Payment for the number of yards dredged was made at the contract rate. Later, this suit was brought to recover additional sums, as upon a quantum meruit. One claim was that the material to* be removed within the contract lines had been misdescribed in the specifications; and the rule applied in United States v. Atlantic Dredging Co., 253 U. S. 1, and United States v. Spearin, 248 U. S. 132, was invoked. Another claim was that, through a mistake of the Government’s representative, work had been done outside the limits prescribed by the contract, and that this was more burdensome. The Court of Claims, after a hearing upon the evidence, entered judgment for the defendant. 58 Ct. Cis. 158. The case is here on appeal under § 242 of the Judicial Code. The appeal was filed in this Court on September 20, 1923. It was not reached for argument until January 15, 1925. On January 9, 1925, the plaintiff filed, with its brief on the merits, a motion to remand. The document, including appendices, contained 65 printed pages. The reliance in this Court was wholly upon the motion to remand. The claim on account of work inside the contract lines was not insisted upon here. The claim for work outside the contract lines was urged in the brief on the merits, but at the argument plaintiff conceded that, upon the findings of fact made, there could be no recovery. The contention then presented was that this Court could not come to a proper decision on SANFORD & BROOKS v. UNITED STATES. 457 455 Opinion of the Court. this claim without having findings as to the existence or non-existence of eight additional alleged facts; and that to this end the cause should be remanded to the lower court. The Government objected to the allowance of the motion to remand on the grounds that the findings already made were definite; that they included all material facts; and that, if the additional facts asserted were found, these would not change the legal result. The objections are, in our opinion, sound. Plaintiff asserts that the additional findings would show that, when the erroneous location of the work was discovered, it made oral protest to the contracting officer of the Government against continuance of the work outside the contract lines; that it protested orally against payment for such work at the contract price; that, during the progress of the work, it made claim for payment upon a quantum meruit basis; that, seven months after the completion of the work in question, the Judge Advocate General gave an opinion on this claim favorable to the plaintiff; that the Assistant Secretary of War approved of the opinion; that he directed that negotiations be had with plaintiff* concerning the amount of additional compensation to.be paid; but that no agreement was reached. These, with other minor additions to the facts as found, are relied upon by plaintiff to show that, as to this work, the express provisions in the written contract which required prompt written protest against any order for work outside of the specifications, written modification of the contract if it was altered materially, and written orders for extra work, were all inapplicable or waived; and that a new oral agreement providing for compensation quantum meruit was substituted by implication. We are of opinion that the findings sought, if made, would be of no avail to plaintiff. Oral protests, a claim for additional compensation and a fa- 458 OCTOBER TERM, 1924. Syllabus. 267 U. S. vorable advisory opinion thereon, would be facts clearly insufficient to establish plaintiff’s contentions. Moreover if those facts could conceivably affect the result, the motion should, as a matter of discretion, be denied because of the delay in filing it. A motion to remand for further findings, even if based wholly upon matter included in the original record on appeal, should be submitted at the first term of the entry of the case so that this Court may determine whether the motion shall be passed upon in advance of the hearing on the merits or be postponed until such hearing. Compare United States v. Adams, 9 Wall. 554, 559. Where, as in this case, the motion is based largely upon matter not appearing in the record on appeal, the reasons for insisting upon promptness in making an application to remand are particularly persuasive. Diligence in this respect is essential to the orderly and expeditious administration of justice. Compare Rule 14 of this Court gov-l erning petitions for certiorari for diminution of the record. Chappell v. United States, 160 U. S. 499. Affirmed. HOROWITZ v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 74. Argued October 15, 1924.—Decided March 9, 1925. 1. The United States, when sued as a contractor, can not be held liable for an obstruction to the performance of the particular contract resulting from its public and general acts as a sovereign. P. 460. 2. So held, where the Government, having sold silk to the claimant, did not ship it promptly, owing to an embargo placed on freight shipments of silk by the United States Railroad Administration, so that the claimant lost his opportunity to resell at a profit. 58 Ct. Cis. 189, affirmed. HOROWITZ v. UNITED STATES. 459 458 Opinion of the Court. Appeal from a judgment of the Court of Claims dismissing the petition upon demurrer. Mr. Raymond M. Hudson for appellant. Mr. M. E. Otis, Special Assistant to the Attorney General, for the United States. Solicitor General Beck, As-sistant Attorney General Ottinger, and Mr. Wm. M. Offley, Special Assistant to the Attorney General, were on the brief. Mr. Justice Sanford delivered the opinion of the Court. This action was brought by Horowitz, under the Tucker Act,1 to recover damages for the alleged breach of a contract relating to the purchase of silk from the Ordnance Department. The petition was dismissed, on demurrer, for failure to state a cause of action. 58 Ct. Cis. 189. The petition alleges, in substance, these facts: On December 20, 1919, the claimant, a resident of New York, submitted a bid for certain Habutai silk offered for sale by the New York Ordnance Salvage Board. At that time the “ Chief of the Textile Division of New York City,” agreed, “ on behalf of such Board,” that the claimant would be given an opportunity to re-sell the silk before completing the payment of the purchase price, and that the “ departments of the Government having jurisdiction in matters of this kind ” would ship the silk—which was then in Washington—within a day or two after shipping instructions were given. On December 22 he was notified by the Board that the sale of the silk to him had been “ approved ”; and he thereupon paid part of the purchase price. On January 30, 1920, he sold the silk to a silk company in New York. On February 16 he paid the balance of the purchase price, and wrote the Board to xAct of Mar. 3, 1887, 24 Stat. 505, c. 359; Jud. Code, § 145. 460 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. ship the silk at once, by freight, to the silk company. Two days later he was notified by the Board that it had received the shipping instructions and had ordered the silk to be shipped. Thereafter the price of silk declined greatly in the New York market, until March 4. On that date the “ claimant learned . . . that the silk was still in Washington, and had not been shipped because the Government through one of its agencies, the U. S. Railroad Administration, had prior to March 1, 1920, placed an embargo on shipments of silk by freight, and the shipment of Habutai silk for claimant had been held up.” Afterwards the Government shipped the silk to the consignee, by express. It arrived in New York “ on or about March 12.” The consignee then refused to accept delivery on account of the fall in prices. And “ by reason of the Government’s breach of the contract and agreement in placing an embargo, and failing to ship the silk either by express or freight prior to March 4,1920, the price of silk having declined, the claimant was forced to sell the said silk for $10,811.84 less than the price the consignee had agreed to pay for same had it been delivered in time.” The petition alleges that the claimant is entitled to recover from the United States the said sum of $10,811.84, “ for and on account of the violation of the said agreement;” and prays judgment therefor. We assume, without determining, that the petition shows a valid contract with the Salvage Board for the sale of the silk and its prompt shipment after the receipt of shipping instructions. The sole breach of this contract which is alleged is the failure to ship the silk prior to March 4, 1920. This, according to the averment of the petition, was caused by an embargo placed by the Railroad Administration on shipments of silk by freight. Neither the validity of this embargo nor its effect in delaying the shipment is challenged by the petition. 458 HOROWITZ v. UNITED STATES. Opinion of the Court. 461 It has long been held by the Court of Claims that the United States when sued as a contractor cannot be held liable for an obstruction to the performance of the particular contract resulting from its public and general acts as a sovereign. Deming v. United States, 1 Ct. Cis. 190, 191; Jones v. United States, 1 Ct. Cis. 383, 384; Wilson v. United States, 11 Ct. Cis. 513, 520. In the Jones Case, supra, the court said: 11 The two characters which the government possesses as a contractor and as a sovereign cannot be thus fused; nor can the United States while sued in the one character be made liable in damages for their acts done in the other. Whatever acts the government may do, be they legislative or executive, so long as they be public and general, cannot be deemed specially to alter, modify, obstruct or violate the particular contracts into which it enters with private persons. . . . In this court the United States appear simply as contractors; and they are to be held liable only within the same limits that any other defendant would be in any other court. Though their sovereign acts performed for the general good may work injury to some private contractors, such parties gain nothing by having the United States as their defendants.” It was upon this ground that the demurrer in the present case was sustained by the Court of Claims. We think this was correct, and the judgment is Affirmed. 462 OCTOBER TERM, 1924. Argument for Plaintiffs in Error. 267 U. S. OLSON ET AL., CO-PARTNERS, DOING BUSINESS UNDER THE FIRM NAME OF OLSON BROS. OR OLSON & OLSON v. UNITED STATES SPRUCE PRODUCTION CORPORATION. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF OREGON. No. 128. Argued March 5, 6, 1925.—Decided March 16, 1925. 1. Where a federal statute excludes jurisdiction in state as well as federal courts, a judgment of a District Court dismissing the case for that reason is not reviewable here directly under Jud. Code § 238. P. 467. 2. The Dent Act, which provides for adjustment of certain classes of claims against the United States through the Secretary of War and by suit in the Court of Claims, did not purport to confer jurisdiction on that court over a suit against the United States Spruce Production Corporation, which, though a federal agency, is a corporation of the State of Washington. P. 466. 3. An action against the Spruce Corporation to recover for work done, materials furnished or destroyed and profits lost in consequence of a government requisition prior to the Dent Act, held within the jurisdiction of the state court and of the District Court on removal, whatever the merits. Id. Reversed. Error to a judgment of the District Court dismissing an action for want of jurisdiction as a federal court. Mr. 0. A. Neal, with whom Messrs. R. H. Cake, John C. Murphy and F. R. Salway were on the brief, for plaintiffs in error. The United States Spruce Production Corporation is a distinct corporate entity and may be sued as any private corporation. Sloan Shipyards Corp. v. Fleet Corp, 258 LT. S. 549; The Lake Monroe 250 U. S. 246; Com. Finance Corp. n. Landis, 261 Fed. 440; Gould Coupler Co. v. 462 OLSON v. U. S. SPRUCE CO. Argument for Plaintiffs in Error. 463 Fleet Corp., 261 Fed. 716; Lord & Burnham Co. v. Fleet Corp., 265 Fed. 955; Bank-Russo-Asiatique of London v. Fleet Corp., 266 Fed. 897; Ingram Day Lumber Co. v. Fleet Corp., 267 Fed. 283; United States v. Salas, 234 Fed. 842; Panama R. R. v. Curran, 257 Fed. 768; Ingersol Rand Co. v. Fleet Corp., 187 N. Y. S. 695; Eichberg v. Fleet Corp., 273 Fed. 886; In re Eastern Shore Shipbuilding Corp., 274 Fed. 893; American Cotton Oil Co. v. Fleet Corp., 270 Fed. 296; United States v. Strang, 254 U. S. 491; Krichman v. United States, 254 U. S. 616. The United States Spruce Production Corporation was organized under the laws of the State of Washington, which creates it a body politic and corporate with power to sue and be sued in any court of law or equity where it may transact business. This is a statement of a power which is incidental to every corporation. The doctrine of government immunity has but little place in this country. United States v. Lee, 106 U. S. 196; Gould Coupler Co. v. Fleet Corp., 261 Fed. 716; Fed. Sugar Ref. Co. v. U. S. Sugar Equalization Bd. 268 Fed. 585. Exclusive ownership of stock by the United States does not make the corporation immune from suit. United States v. Strang, 254 U. S. 491; Salas v. United States, 234 Fed. 842; Panama R. R. v. Curran, 256 Fed. 772; Bank of U. S. v. Planters’ Bank, 9 Wheat. 904; Bank of Ky. v. Wister, 2 Pet. 318; Brisco v. Bank of Ky., 11 Pet. 257. The creation by Congress of a corporation to facilitate discharge of a governmental function does not in itself imply immunity from suit. Osborn v. Bank, 9 Wheat. 738; McCulloch v. Maryland, 4 Wheat. 315; Farmers’ Bank v. Dearing, 91 U. S. 29; Thompson v. Union Pac. R. Co., 9 Wall 579; Davis v. Elmira Savings Bank, 161 U. S. 275; United States v. Union Pac. R. Co., 98 U. S. 569; Luxton v. North River Bridge Co., 156 U. S. 525. 464 OCTOBER TERM, 1924. Argument for Defendant in Error. 267 U. S. Mr. Alfred A. Wheat, Special Assistant to the Attorney General, with whom Mr. Solicitor General Beck was on the brief, for defendant in error. The court below had no jurisdiction of the cause of action alleged. There was no attempt to allege a cause of action against the Corporation based upon any contract made by it for its own benefit or anything done by it in its corporate capacity. The cause of action set forth is under the so-called Dent Act. It is, in express terms, an action brought because the Secretary of War had rejected a claim under the Dent Act. That is its sole basis. But under that act the Court of Claims has exclusive jurisdiction, Nassau Smelting & Refining Works v. United States, 266 U. S. 101. The only things specifically alleged to have been done by plaintiffs were prior to the 19th day of August, 1918, when the corporation was organized; and it is alleged that thereafter the corporation took over and assumed control of and undertook the work theretofore carried on or directed by the Spruce Production Division, and, acting through and by the same officers, “ further promised and assured plaintiffs that they would be compensated therefor” and “thereby ratified and confirmed all that had been • theretofore done and/or promised by said Spruce Production Division.” The only allegations with respect to prior promises of compensation were that the plaintiffs “ would be reimbursed by the Government.” The case presented, therefore, is not one calling for determination of the question whether the Spruce Corporation is generally immune from suit, and such was not the basis of the decision by the court below. As to the status of the Spruce Production Corporation, see Clallam County v. United States, 263 U. S. 341; Erickson v. United States, 264 U. S. 246. The suit is not against the corporation upon contracts made by it, in its own behalf, or upon work done for it at its request. The 462 OLSON v. U. S. SPRUCE CO. Argument for Defendant in Error. 465 suit is for compensation which agents of the War Department had promised would be paid by the Government of the United States for work done pursuant to authority conferred by acts of Congress upon the President and Secretary of War. While ordinarily the question of liability of an agent would go to the merits, rather than to the jurisdiction of the court, nevertheless, where the allegation is that the agent was an agent of the United States—a division of its War Department—that what it did was done in behalf of the United States, and pursuant to authority of acts of Congress; that its promises were of compensation to be made by the United States; and where it appears that Congress has provided a special and exclusive remedy under such circumstances, the conclusion would seem to follow that no court other than the court specified in the act of Congress has jurisdiction of the subject matter of the controversy. Furthermore, the Dent Act waives the provision of law in favor of the United States relating to the manner prescribed for executing the agreements, and limits the liability of the United States by excluding prospective or possible profits. The United States has therefore consented to be sued in a class of cases which could not theretofore have been brought against it. It has provided for itself a special and partial defense to such claims, and has prescribed a specific court in which such matters may be litigated. No other court, therefore, has jurisdiction to entertain a suit against a Government agent based upon such a claim and subject to such a limit of liability. Looked at in this way, the question seems clearly to be one of jurisdiction. Though the defendant named is the corporation, nevertheless the allegations themselves are to the effect that it is not the real party in interest. The suit is a mere device to avoid the jurisdiction prescribed by Congress, and to seek a judgment, binding 42684°—25---------30 466 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. upon the property of the United States, in a tribunal deemed more favorable and under circumstances less onerous. It appearing, therefore, that the suit “ does not really and substantially involve a dispute or controversy properly within the jurisdiction of said court,” it was properly dismissed. Judicial Code, § 37. Mr. Justice Holmes delivered the opinion of the Court. This case comes here directly from the District Court by a writ of error and a certificate that the action was dismissed upon the ground that the Court had no jurisdiction. The suit was begun in a Court of the State of Oregon and removed. It was brought against the corporation described in Clallam County v. United States, 263 U. S. 341, to recover for work done, materials furnished or destroyed, and profits lost, during the year 1918, in consequence of a requisition by the Government that the plaintiffs should devote their logging camp to the production of airplane timber alone. The declaration is long and suggests throughout an effort to state a case under the Dent Act, March 2, 1919, c. 94; 40 Stat. 1272; and to account for this suit by the fact that the plaintiffs’ claim under that Act was disallowed. The assurances and promises relied upon seem to have been the assurances and promises of successive agents of the United States that the United States would pay for what the plaintiffs were asked to do. The Court below seems to have regarded the Dent Act as giving the only remedy in cases like this, although the supposed cause of action arose before that Act was passed; and according to the certificate treated the statute as excluding jurisdiction elsewhere. If the suit were against the United States, as no Court has jurisdiction over the 462 LEWIS v. ROBERTS. Syllabus. 467 United States except when it is granted, the ruling might have been correct. But this suit is against a corporation of the State of Washington, brought originally in a Court of Oregon to enforce a supposed liability in contract. Even if a statute of the United States created a bar, it would be unusual if the act went to the jurisdiction rather than to the merits, Fauntleroy v. Lum, 210 U. S. 230, 235; and if the statute went further it would be more likely to exclude jurisdiction in all other Courts rather than merely in Courts of the LTnited States as such. If the statute excluded jurisdiction in State as well as United States Courts the case could not be certified under § 238 of the Judicial Code. Fore River Shipbuilding Co. v. Hagg, 219 U. S. 175, 178. But the Dent Act does not contemplate suits against corporations in the Court of Claims, and we perceive no ground for the ruling as certified. It well may be that the Court was right in deciding that the allegations were not sufficient to justify a suit against the corporation, and our judgment is without prejudice to a judgment dismissing the case upon the merits. But it was error to decide that there was a want of jurisdiction and therefore the judgment must be reversed. Judgment reversed. LEWIS v. ROBERTS. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 284. Argued January 29, 1925.—Decided March 16, 1925. Under § 63a of the Bankruptcy Act, including among provable debts “(1) a fixed liability, as evidenced by a judgment . . absolutely owing at the time of the filing of the petition . .”, a judgment founded on a tort (personal injuries caused by negligence) is a provable claim. P. 468. 294 Fed. 171, reversed. 468 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. Certiorari to a decree of the Circuit Court of Appeals affirming a decree of the District Court which confirmed an order of a referee in bankruptcy disallowing the petitioner’s claim. Mr. H. L. Black for petitioner. No appearance for respondent. Mr. Justice Sanford delivered the opinion of the Court. The petitioner, Lewis, recovered a judgment against the Montevallo Mining Company for personal injuries caused by its negligence. The Company was thereafter adjudicated a bankrupt in the Northern District of Alabama. Lewis filed in the bankruptcy proceeding a proof of claim upon the judgment. The District Court confirmed an order of the referee disallowing this claim, upon the ground that a judgment founded upon a tort was not provable in bankruptcy. This decree was affirmed by the Circuit Court of Appeals. 294 Fed. 171. The writ of certiorari was then granted. 264 U. S. 578. This decision is in conflict with an unbroken line of decisions in other Circuit Courts of Appeals and in the District Courts. Re New York Tunnel Co. (C. C. A.), 159 Fed. 688, 690; Moore v. Douglas (C. C. A.), 230 Fed. 399, 401; Re Putnam (D. C.), 193 Fed. 464, 468. And see Re Lorde (D. C.), 144 Fed. 320; Ex parte Margiasso (D. C.), 242 Fed. 990; In re Madigan (D. C.), 254 Fed. 221. We think these prior decisions were correct. Section 63a of the Bankruptcy Act,1 entitled “ Debts which may be Proved,” provides that: “Debts of the bankrupt may be proved and allowed against his estate which are (1) a fixed liability, as evidenced by a judg- 1 Act of July 1, 1898, c. 541, 30 Stat. 544. 467 LEWIS v. ROBERTS. Opinion of the Court. 469 ment . . . absolutely owing at the time of the filing of the petition. . . . ” Section 1, (11) declares that the word. “ debt ” as used in the Act shall, unless inconsistent with the context, be construed to include “ any debt, demand, or claim provable in bankruptcy.” It is clear that a judgment for tort is provable under the express provisions of § 63a(l). The language is broad and unqualified. It includes 11 a fixed liability ” evidenced by a judgment ex delicto as well as by a judgment ex contractu, and makes the one as well as the other a provable “ debt.” There is nothing in the language or in the context which suggests its limitation to judgments founded on debts or warrants the reading in of such a limitation. This conclusion is confirmed by a consideration of other provisions of the Act. By § 17, as originally enacted, it was provided that: “ A discharge in bankruptcy shall release a bankrupt from all his provable debts, except such as . . . (2) are judgments in actions for fraud, or obtaining property by false pretenses or false representations, or for wilful and malicious injuries to the person or property of another.” 2 This express exception of certain judgments for torts from the “ provable debts ” released by a discharge, plainly indicates that Congress understood that under § 63a judgments for torts were “ provable debts ”, and is strongly persuasive as a construction of that section. Furthermore, if a judgment for tort is not a provable claim in bankruptcy under § 63a, it could not, under § 1, (11), be considered in determining whether one against whom an involuntary petition has been filed, is insolvent within the meaning of § 1, (15), providing that 2 By the amendments of 1903 and 1917 the word “ judgments ” in clause 2 was changed to “ liabilities ”, and other changes were made which are not here material. 32 Stat. 797, c. 487, § 5; 39 Stat. 999, c. 153. 470 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. “ a person shall be deemed insolvent . . . whenever the aggregate of his property . . . shall not . . . be sufficient in amount to pay his debts.” The result of this would be that a person having property in excess of his other debts could not be, adjudged an involuntary bankrupt under § 3b of the Act, although owing judgments for tort exceeding the amount of his property. Clearly Congress did not intend so anomalous a result. The trustee contends, however, that despite the broad language of § 63a(l), the decision in Wetmore v. Markoe, 196 U. S. 68, necessarily leads to the conclusion that only judgments founded in debt are provable claims. It was there held that under § 17 of the Act the arrears of alimony previously awarded to the wife of the bankrupt for the support of herself and their minor children under a final decree of absolute divorce was not a provable debt which was released by the bankrupt’s discharge. The ground of the decision was that the court could look into the proceedings to determine the nature of the liability which had been reduced to judgment; that a decree awarding alimony was not in any just sense a debt which had been put into the form of a judgment, but rather the legal means of enforcing the obligation of the husband to support his wife and children which was imposed upon him by the policy of the law; and that it could not be presumed, in the absence of a direct enactment, that Congress intended that the Bankruptcy Act should be made an instrument by which the wife and children should be deprived of the support which it was the purpose of the law to enforce. It is clear that this decision rested on the peculiar and exceptional nature of a decree for alimony. There was no suggestion in the opinion that an ordinary claim ex delicto that had been previously reduced to judgment was not a provable debt; and we think that its reasoning neither leads to nor warrants such a conclusion. UNITED STATES v. LORILLARD CO. 471 467 Counsel for Parties. Nor is there anything to support this conclusion in Schall v. Camors, 251 U. S. 239, which dealt solely with unliquidated claims arising in tort, not previously reduced to judgment, and held merely that such unliquidated claims, not being included in the enumeration of provable debts under § 63a, could not be liquidated and proven under the provisions of § 63b. The decrees of the District Court and of the Circuit Court of Appeal are reversed, and the cause is remanded to the District Court for further proceedings in accordance with this opinion. Reversed and remanded. UNITED STATES v. P. LORILLARD COMPANY. APPEAL FROM THE COURT OF CLAIMS. No. 319. Argued March 13, 1925.—Decided March 23, 1925. By Rev. Stats. § 3386, as amended, a drawback on tobacco, etc., subsequently exported, on which the tax has been paid by affixing stamps before removal from the factory, is allowed “ equal in amount to the value of the stamps found to have been so affixed.” Held applicable to an additional tax on cigarettes imposed by the Act of February 24, 1919, payment of which would have been treated in practice as evidenced by the stamps already on the goods, if they had not been removed, but which, in view of their removal, took the form of a “ floor tax.” C. 18, Title VII, §§ 700, 702, 40 Stat. 1057, 1116. P. 473. ♦ 58 Ct. Cis. 541, affirmed. Appeal from a judgment of the Court of Claims allowing recovery, by way of drawback, of taxes on cigarettes, which were exported. Mr. Merrill E. Otis, Special Assistant to the Attorney General, for the United States. Mr. Solicitor General Beck, Mr. Assistant Attorney General Lovett, Mr. Nelson T. Hartson, Solicitor of Internal Revenue, and Mr. Robert H. Littleton, were on the brief. 472 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. Mr. M. C. Elliott, with whom Mr. W. B. Bell and Mr. Forest Hyde were on the brief, for appellee. Mr. Justice Holmes delivered the opinion of the Court. This is a suit brought by the P. Lorillard Company to recover by way of drawback a tax paid by it upon 153,-050,000 cigarettes of its manufacture exported after the tax had been paid. The Company recovered in the Court of Claims and the United States appeals. The total was $3 a thousand and was collected under successive Acts as follows. A tax of $1.25 per thousand was imposed by Rev. Sts. § 3394 and was paid in the usual way by stamps for the amount, bought and attached to the original packages before they were removed from the factory. An additional tax of 80 cents per thousand was imposed by the Act of October 3, 1917, c. 63, § 400 ; 40 St. 300, 312. The cigarettes had not been removed, and the Company paid the additional tax but without attaching new stamps, the practice being to treat the payment as so much added to the cost of the old ones. Then the Act of February 24, 1919, c. 18, Title VII, § 700; 40 St. 1057, 1116, in lieu of the internal-revenue taxes then imposed, raised the tax to $3 per thousand to be paid as before by attaching and cancelling stamps. By § 702, if the goods had been removed from the factory and were held for sale on the day after the Act, a ‘ floor tax ’ equal to the difference between the sum already paid and $3 was to be paid. These goods had been removed and the Company, having previously paid $2.05, paid the additional 95 cents. Between August 29 and November 21, 1919, these cigarettes were exported. By Rev. Sts-. § 3386, amended, Act of March 1, 1879, c. 125, §16; 20 Stat. 347, a drawback on tobacco, &c., on which the tax has been paid by suitable stamps, &c., affixed before removal, is allowed, ‘ equal in amount to the value of the UNITED STATES v. LORILLARD CO. 473 471 Opinion of the Court. stamps found to have been so affixed.’ The Commis-sioner of Internal Revenue allowed the claim for the $2.05 paid under the two earlier Acts, but rejected that for the 95 cents paid under the last. The Court of Claims gave the Company judgment for $145,397.50, the amount of the rejected claim. The argument for the Government stands on a strict adhesion to the letter of the statute giving the drawback and a narrow interpretation of even the letter of the Act. It contends that only the value of the stamps attached before removal from the factory can be recovered, and, while admitting that the second payment made after the stamps had been bought and attached c&n be taken as adding to- their value, it denies that the payment of what the statute calls a floor tax, paid after removal of the goods, can be added in a similar way. But we are of opinion that the Court of Claims was right. When it is considered that at the time the Act allowing the drawback was passed the tax was collected wholly by stamps, it seems evident that Congress meant to carry the policy of the Constitution against taxing exports beyond its strict requirement and to let the event decide about the tax. In this case if the cigarettes still had been in the factory, the additional payment would have been treated as made for the stamps already on, if that fiction was necessary to secure the rebate. We see no insuperable difficulty in adopting the same device for a payment of the same amount under the same Act by the same people for the same goods, after they had left the factory. And if the payment should be made by a third person who had purchased from the manufacturer it seems to us that if necessary he also might be taken to stand in the manufacturer’s shoes, and still to make the payment on account of the stamps. Our opinion perhaps gets some confirmation from § 1310(c) 474 OCTOBER TERM, 1924. Statement of the Case. 267 U.S. of the Act of 1919, but we rest it upon what we have said. A protest was not necessary at the time of payment because, apart from other reasons, at that time the event creating the right to the drawback had not come to pass. Judgment affirmed. WELLS, ADMINISTRATRIX OF THE ESTATE OF CHARLES E. WELLS, DECEASED, v. BODKIN ET AL. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 144. Argued March 6, 1925.—Decided April 13, 1925. The Act of May 14, 1880, confers a preference right of entry upon the successful contestant of a homestead claim and provides that, should the person who initiated a contest die “before the final termination of the same ”, the contest shall not abate, but that his heirs, who are citizens of the United States, may continue the prosecution and shall be entitled to the same rights under the act that the contestant would have if his death had not occurred. Held: 1. That, where the contestee relinquished and the contestant made her homestead application within the time allowed and later died, her heirs were entitled, in prosecuting the application, to preference over a stranger to the contest whose homestead application was made on the same day as the decedent’s. P. 476. 2. The fact that an heir applying had himself made a homestead entry in his own right was no obstacle, when he relinquished it under permission of the Secretary of the Interior for the purpose of availing himself of the inherited right of entry. P. 478. 289 Fed. 245 affirmed. Appeal from a decree of the Circuit Court of Appeals which affirmed a decree of the District Court dismissing a bill whereby the appellant’s decedent sought to have 474 WELLS v. BODKIN. Opinion of the Court. 475 the appellees declared trustees for himself of a tract of land patented to them under the public land laws.1 Mrs. Susie Wells, pro se, submitted. Mr. Patrick H. Loughran, for appellees. Mr. Chief Justice Taft delivered the opinion of the Court. This is an appeal from the United States Circuit Court of Appeals for the Ninth Circuit under § 241. It was a bill in equity to have Patrick H. Bodkin and Arabella Bodkin, patentees of a quarter section of public land in the county of Riverside, California, declared trustees for the complainant Charles E. Wells. In May, 1903, one Geiger made a homestead entry of the land in dispute. In September of that year the land was withdrawn from public entry by the Secretary of the Interior under the Reclamation Act. 32 Stat. 388. Florence V. Bodkin filed a contest against the entry of Geiger on the 30th of January, 1908, pending this withdrawal. In March, 1908, Geiger filed a relinquishment of his entry, and in July, 1908, the contestant was notified by the local land office that she had a preference right of entry for a period of thirty days after the land should be restored to entry. On April 18, 1910, the land was restored to settlement, and to public entry on May 18, 1910. On the latter date Charles E. Wells, after having made a settlement, and Florence V. Bodkin, the contestant, each made a homestead application for the land. The applications on the same day were suspended for investigation as to the character of the land by the Surveyor General. On May 22, 1912, the suspension was removed and the land again restored to public entry. On June 3, 1912, the local land office rejected the homestead application of Wells and 1 Charles E. Wells, appellant, died while this appeal was pending in this Court, and his administratrix was substituted as appellant. 476 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. allowed the application of Florence Bodkin; and this decision was affirmed by the Commissioner of the General Land Office on November 13, 1912. On May 27, 1913, the Secretary of the Interior reversed the decision of the Commissioner, because it appeared that on the 25th of March, 1912, before the suspension for investigation was removed, Florence Bodkin had died; and held that she had acquired no rights by her application to enter that would descend to her heirs. On August 29, 1913, the Secretary on rehearing overruled this decision and held that the contestant might have acquired rights by her application to enter that would have descended to her heirs, but denied a rehearing to her heirs, who were her father and mother, Patrick H. Bodkin and Arabella Bodkin, on the ground that Patrick H. Bodkin had made a homestead entry in his own right on other lands, and this precluded him and his wife from perfecting the application for a homestead as heirs of the contestant. Accordingly, the entry of Florence V. Bodkin was canceled and the application of Wells was allowed. But this was changed on January 3, 1914, when the Secretary of the Interior, in the exercise of his supervisory authority, decided that Patrick H. Bodkin, the father of the deceased contestant, might elect within thirty days to relinquish his own homestead entry on other lands and make a new entry based on the application of the deceased contestant, his daughter, with his wife as co-heir. The father thereupon relinquished his own homestead entry and, upon the entry of himself and his wife of the quarter section here in controversy, the patent issued to him. The District Court dismissed the bill, and this ruling was affirmed by the Circuit Court of Appeals. Under the decision by this Court in the case of McLaren v. Fleischer, 256 U. S. 477, Florence V. Bodkin, as the successful contestant of the homestead entry of Geiger pending the withdrawal of the land from public entry 474 WELLS v. BODKIN. Opinion of the Court. 477 under the Reclamation Act, had thirty days after the land was restored to public entry within which to exercise her preference right of entry as a homesteader of the land. Had she lived, therefore, no question would have arisen here. The controversy arises on the effect of the proviso of § 2 of the Act of May 14, 1880, 21 Stat. 141, entitled “An Act for the Relief of Settlers on Public Lands,” as amended by the Act of July 26, 1892, c. 251, 27 Stat. 270. The second section as amended reads as follows: “ Sec. 2. In all cases where any person has contested, paid the land office fees, and procured the cancellation of any pre-emption, homestead, or timber-culture entry, he shall be notified by the register of the land office of the district in which such land is situated of such cancellation, and shall be allowed thirty days from date of such notice to enter said lands: Provided, That said register shall be entitled to a fee of one dollar for the giving of such notice, to be paid by the contestant and not to be reported: Provided further, That should any such person who has initiated a contest die before the final termination of the same, said contest shall not abate by reason thereof, but his heirs who are citizens of the United States, may continue the prosecution under such rules and regulations as the Secretary of the Interior may prescribe, and said heirs shall be entitled to the same rights under this act that contestant would have been if his death had not occurred.” The contention on behalf of the appellant is, that the relinquishment of the Geiger entry, upon which the contestant won the contest, was the final termination of it and that, thereafter, the contestant had only a mere right to make an application to enter, and that the statute had made no provision for succession or descent with reference to that, because the contest here is not with Geiger but is with Wells, who, having made a settlement of the land, filed his application on the same day that the contestant did. We think this a very narrow and 478 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. unwarranted construction of the meaning of the section. We concur in the opinion of the Secretary of the Interior when, in discussing this question, he said, 42 L. D. 340, 342: “ To restrict the term used, ‘ the final termination of the ’ contest, to the termination thereof as regards the contestee, only, would be contrary to the reason and purpose of the act. No interest of the contestee called for the enactment of such a law. The interest of the contestant, however, based upon a consideration, the payment of the costs of contest on the promise of a prospective right of entry, called for just such an enactment which should secure to such contestant and to his heirs that for which such consideration had been given by him, in part if not wholly, as in the present case; and good faith on the part of the United States with such contestant required such an enactment to apply to all cases where the contestant’s death intervenes before the right of entry given him inchoately with his privilege of contest is merged into actual entry or otherwise extinguished in some of the ways indicated.” Further objection is made that the circumstance that Patrick H. Bodkin had himself made a homestead entry in his own right deprived him and his wife, co-heirs of the contestant, their daughter, of the capacity to inherit The only objection to the inheritance was that under the homestead laws an entrymari can not perfect title to two homesteads. If he chooses to relinquish one, it removes objection to his perfecting the other, certainly when he does this under the permission granted him by the Secretary of the Interior. As the Circuit Court of Appeals said in this case, the question whether the heir should be required or permitted to relinquish a homestead entry in his own right was one between him and the United States, with which the appellant had no concern. Tine decree is affirmed. BOHLER v. CALLAWAY. Syllabus. 479 BOHLER, TAX COLLECTOR OF RICHMOND COUNTY, GEORGIA, ET AL. v. CALLAWAY, EXECUTOR OF THE ESTATE OF J. B. WHITE, DECEASED. CALLAWAY, EXECUTOR OF THE ESTATE OF J. B. WHITE, DECEASED, v. BOHLER, TAX COLLECTOR OF RICHMOND COUNTY, GEORGIA, ET AL. APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF GEORGIA. Nos. 170, 171. Argued January 14, 1925.—Decided April 13, 1925. 1. Refusals to grant interlocutory injunctions to stay proceedings before a board of arbitration, held not res judicata in favor of the validity of those proceedings. P. 485. 2. The provision in Georgia for reviewing tax assessments by arbitration; Code 1910, § 1059; Acts 1910, pp. 22, 24, Parks Ann. Code, 1914, § 1116 (d); was superseded by Acts of 1918, No. 270, p. 232, which substitutes a petition in equity to enjoin excessive assessments. P. 485. 3. Where the only remedy afforded by the state law to a tax payer against an invalid tax is by a proceeding in equity in the state court, purely judicial in character, to enjoin excessive assessment, the federal court has jurisdiction of a bill to enjoin collection in which it is set up that the tax violates the federal Constitution. P. 486. 4. If the administration of the tax laws of a State is shown to result in a systematic and intentional discrimination against the plaintiff, the federal court may grant injunctive relief allowed by the state law without deciding the federal constitutional question upon which jurisdiction of the bill is based. P. 489. 5. Evidence held sufficient to show such systematic underassessment of property in Georgia, particularly of stocks and bonds, as justified a decree holding invalid an assessment of plaintiff’s securities at full market value, and reducing it to 25%. P. 489. 480 OCTOBER TERM, 1924. Statement of the Case. 267 U. S. 6. In cases of this kind it is proper to call as witnesses tax officials of the State and county, because of their experience in assessing property, to testify to the existence of systematic and intentional undervaluation. C. B. & Q. Ry. v. Babcock, 204 U. S. 585, distinguished. P. 491. 7. To avoid addition of interest, a tender of money in discharge of a disputed tax should not be tied to the condition that it be received in full payment. P. 492. 291 Fed. 243 affirmed. These are an appeal and a cross appeal direct from the District Court for the Southern District of Georgia, under § 238 of the Judicial Code, because involving the application of the Federal Constitution. The bill sought to enjoin the levy of executions on delinquent tax assessments of the tax receiver of Richmond County, Georgia, against the estate of J. B. White, for the seven years, from 1911 to 1917. The assessments were as follows: Tax Assessment, 1911 $1,000,866.87 $13,552.20 “ 1912 1,399, 161. 67 18,888.68 “ 1913 1,558,300.83 22,751.19 “ 1914 1,548,735.38 21,527.42 “ 1915 1,439, 160.83 21,011.75 “ 1916 1,509,936.00 22,347.05 “ 1917 1,623,567.52 25,490.01 The aggregate amount of the executions was $145,-568.30, with interest thereon to the date when issued, July 28, 1918; of $70,764.01, or a total of principal and interest of $216,332.01. The bill of the complainant, who was White’s executor, asked an injunction on two grounds. One was that in the sum assessed were national bank stocks, which under § 5219 R. S. should have been assessed for taxation' in New York City where the banks were and not in Georgia, 479 BOHLER v. CALLAWAY. Statement of the Case. 481 and also stock in a Georgia railway exempt from taxation by the state law. The second ground was that the assessment of the stocks and other securities was at their full market value, whereas in Georgia and in Richmond County property of this class in the hands of others was generally and intentionally assessed by the taxing officers at less than 25 per cent, of such value, and that such discrimination was unlawful under the statutes and constitution of Georgia and would work a denial of the equal protection of the laws in violation of the Fourteenth Amendment of the Federal Constitution. J. B. White, a native of Ireland, came to Georgia in 1866, and resided there continuously until 1909. He never was naturalized. In 1909 he went abroad and died at Genoa, Italy, in March, 1917, leaving a will, in which he described himself as of Richmond County in that State, and named the complainant, E. H. Callaway, as his executor. The executor probated the will and filed an inventory of the estate in the Court of the Ordinary. During the seven years—1911 to 1917—White had returned for taxation his real estate in Richmond County, amounting to 8600,000, and 8300 of household and kitchen furniture, but no other personal property. After the probate of the will, the tax receiver of the county demanded of the executor returns for taxation for seven years on the securities shown in the inventory. The certificates of stock and the bonds were physically in possession of Henry Clews & Company in New York. The executor insisted (though he subsequently abandoned the claim) that they were not subject to taxation in Georgia, for the reason that White was a nonresident. The tax receiver withdrew his demand. Thereafter, the Board of County Commissioners directed institution of proceedings in mandamus to compel the tax receiver to assess this property as delinquent. The suit for mandamus, 42684°—25-------31 482 OCTOBER TERM, 1924. Statement of the Case. 267 U. S. though it did not go to a rule absolute, brought out from a member of the firm of Clews & Company evidence of the exact amount and value of the property which White’ had left with them. The tax receiver then made the assessments at full market value. The executor demanded arbitration as provided by § 1059 of the Georgia Code of 1910 and the General Arbitration Act—Acts of Georgia of 1910, pp. 22, 24, as codified in Park’s Annotated Code, (1914), § 1116 (d). The latter section directed the County Tax Receiver to assess property at the valuation fixed by the taxpayer in the return, if satisfactory, and if not, within thirty days to make an assessment on the best information he could procure, and notify the taxpayer. The latter might by a demand within twenty days have the question of true value referred to arbitrators, one selected by him, one by the tax receiver, and a third by the other two and, in default of their agreement, by the Board of County Commissioners. In this case the executor selected his arbitrator, the tax receiver his, and the county commissioners selected the third. On the day of the meeting of the arbitrators, the State applied to the Superior Court of the County for an injunction to prevent their further proceeding; but the application was denied. The issue was then heard by the arbitrators, the State and county appearing and taking part therein by counsel. The arbitrators made an award fixing the valuation at 25 per cent, of the market value of the securities, and the same was “ fastened in tax digest of the County for the year 1917.” The tax collector calculated the taxes due and submitted the amount to the executor as $27,-980.88. This sum the executor tendered as full payment of the taxes due. On advice of counsel representing the State, the collector declined it. The State and county then filed a second petition in the Superior Court to enjoin the tax receiver and the tax collector from making the assessments and collections according to the arbitra- 479 BOHLER v. CALLAWAY. Statement of the Case. 483 tion. The Superior Court held the petition insufficient on demurrer and dismissed the application. Meantime the first application to enjoin the proceedings in arbitration reached the Supreme Court, and the Superior Court was sustained in refusing the injunction. Georgia v. Callaway, 150 Ga. 235. When the second application for injunction reached the Supreme Court, two of the judges out of six (only four being present) held that an Act of 1918 (Acts of Georgia of 1918, No. 270, p. 232) repealed the section of the Act of 1910 on which the arbitration had proceeded and rendered it void, and that therefore the original assessments made by the tax receiver were valid, the executions could issue and no injunction was necessary. Of the other two judges, one held that the Act of 1918 did not prevent the arbitration proceedings in which the State participated. The other held that the State had not put itself in a position to object to the assessment of the arbitrators, because its only complaint was that the award was fraudulent and it had not made out its case; and that the effect of the Act of 1918 it was not necessary for the court to decide. So an injunction was a second time refused. Georgia n. Callaway, 152 Ga. 871. The second decision was made March 4, 1922. On March 9th following, tax executions on the assessments made by the tax receiver July 28, 1919, including those on the stock of the national banks of New York City, were issued. The executor thereupon again tendered payment of taxes and interest under the award of the arbitrators to the tax collector, which was again declined. On March 22, 1922, the bill in the present case was filed, and after a hearing before three judges, a temporary injunction was issued by the District Court. The State and the county and the tax officials were made defendants, and filed answers. Among other objections by them to the equitable relief sought was that, though the 484 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. complainant in his bill admitted that there was due from him $27,980.88 to the tax receiver, it had not been paid, and the bill should be dismissed. Thereafter, on the 25th of September, 1922, the executor tendered the sum of $27,980.88, and it was accepted, without prejudice to the rights of any of the parties in the pending litigation. The executor then upon leave of court amended his bill and made the averment of the payment. The District Court after a full hearing sustained its jurisdiction, held that the award of the arbitrators was invalid and that the State and county were not estopped by the state court orders to attack it, enjoined execution of the assessments on the national bank and Georgia railway stocks as non-taxable, found unlawful discrimination in the assessments on the other securities, enjoined collection thereof to the extent of 75 per cent., and decreed against the complainant interest on the 25 per cent, of the assessments already paid by him, from the date of his first tender until their actual payment. The cross appeal of the executor raised in his assignments of error the validity of the award of the arbitration and the question of interest. Mr. E. H. Callaway, with whom Mr. Wm. M. Howard was on the brief, for appellant in No. 171, and for appellee in No. 170. Mr. Benjamin E. Pierce, with whom Mr. George M. Napier, Attorney General of Georgia, Mr. Wallace B. Pierce and Mr. Wm. K. Miller were on the brief, for appellees in No. 171, and for appellants in No. 170. Mr. Chief Justice Taft, after stating the case as above, delivered the opinion of the Court. First. A primary and preliminary question is that of the validity of the arbitration and award. The proceeding was initiated and award made under the Act of 1910, 479 BOHLER v. CALLAWAY. Opinion of the Court. 485 but it was not begun until July 28, 1919, a year after the Act of 1918 claimed by appellants to have repealed the arbitration provision, was enacted.' The executor contends that the refusal of the state Supreme Court to enjoin the arbitration board from proceeding, was res judicata as to its validity. There were no defensive pleadings. It was a decision upon an interlocutory injunction and was presumably made in the exercise of judicial discretion upon a balance of convenience as to halting the proceeding of arbitration before its conclusion. Chicago Great Western Ry. n. Kendall, 266 U. S. 94, 100. The court pointed out that the ruling it affirmed was only a pendente lite injunction. 150 Ga. 235. Neither the court nor counsel referred to or considered the Act of 1918. Its effect upon the arbitration proceeding does not seem to have been called to the attention of either. To give finality to such a temporary ruling would be contrary to the principles governing estoppel by judgment. Santowsky v. McKay, 249 Fed. 51; Knox n. Alwood, 228 Fed. 753; Webb v. Bucka-lew, 82 N. Y. 555. When the case came again to the Supreme Court, on the second application for injunction by the tax authorities, it was dismissed for varying reasons of the four judges. Certainly, in view of the holding by two of them that the Act of 1918 repealed the provision for arbitration, it could not be said to be a judgment binding the parties to the validity of the award. We agree with the District Judge that no estoppel grew out of the injunction suits. Second. Did the Act of 1918 render the award a nullity? Two of the state Supreme Court judges held that it did. Four federal judges have agreed with them. The sections of the act of 1918 here applicable were the first, third, fifth, seventh, and eighth. By the first section, when the owner of property had omitted to return the same for taxation at the time and for the 486 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. years the return should have been made, he, or, if he was dead, his personal representative, was required to return the property for taxation for each year it was delinquent. By the third section, when such property was of the class which should have been returned to the tax receiver of the county, the latter was to notify in writing the delinquent, or, if dead, his personal representative, requiring a return within twenty days. By the fifth section, if the delinquent or his personal representative refused to return the property after notice, the tax receiver was to assess the property from the best information he could obtain as to its value, for the years in default, and to notify such delinquent of the valuation, which should be final unless the person or persons so notified raised the question that it was excessive, in which event the further procedure should be by petition in equity in the Superior Court of the county where such property was assessed. By the seventh section, if the delinquent or his personal representative disputed the taxability of such property, he might also raise that question by petition in equity. By the eighth section, all laws and parts of laws in conflict with the act were repealed. As already stated, by the laws in force before 1918, the remedy for the delinquent taxpayer was, in case of excessive assessment, to demand arbitration in 20 days. Obviously, the Act of 1918 gave to the taxpayer an opportunity to file a petition in equity to enjoin excessive assessment as a substitute for his previous remedy by arbitration. The repealing section, though not specific, was quite broad enough to end a resort to arbitration under the old law. Third. Had the federal court jurisdiction to entertain the bill and enjoin the enforcement of the executions issued upon the assessments? Appellants cite Keokuk & Hamilton Bridge Co. v. Salm, 258 U. S. 122, as indi 488 OCTOBER TERM, 1924. Opinion of the Court. 267U.S. Section 4317 of the Civil Code of Georgia (1910) is as follows: “ Payments of taxes or other claims, made through ignorance of the law, or where the facts are all known, and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party, are deemed voluntary and can not be recovered back, unless made under an urgent and immediate necessity therefor, or to release person or property from detention, or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule.” In Georgia the statutory methods for levy, assessment and collection of taxes are not merely cumulative—they are exhaustive. Richmond County v. Steed, 150 Ga. 229; State n. Western & Atlantic R. R., 136 Ga. 619. It would seem to follow that the only remedy intended to be furnished in Georgia in such a case as this was by injunction in equity against excessive assessments. If the remedy by law is doubtful, equitable relief may be had. Wilson v. III. So. Ry., 263 U. S. 574, 577; Union Pacific R. R. v. Weld County, 247 U. S. 282, 285, 286; Davis v. Wakelee, 156 U. S. 680, 688. The case seems to be quite like that of Cummings v. National Bank, 101 U. S. 153, in which, under a statute of Ohio authorizing a suit for injunction to prevent the collection of illegal taxes, it was held that a bill would lie in the federal court to enjoin the collection of a tax as illegal because it discriminated against the shares of a national bank. Another objection to the bill is that the assessments made in July, 1919, have become final by the delay, because this bill was not filed until March 11, 1922. It is argued that, as the petition in equity takes the place of the arbitration proceeding and the arbitration proceeding had to be begun within twenty days after the notification to the taxpayer of the assessment, in some way or other the 20-day limitation is projected into the new act. 479 BOHLER v. CALLAWAY. Opinion of the Court. 48$ No statutory time limitation which would bar the resort to a petition or a bill in equity as filed in this case has been pointed out to us by counsel, and we can not infer one. We come now to the issue of discrimination. By the constitution of Georgia, Article 7, § 2, it is provided that “ All taxation shall be uniform upon the same class of subjects, and ad valorem on all property subject to be taxed within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.” By the laws of Georgia all real and personal property, including stocks and securities in corporations in other States owned by citizens of Georgia, is to be returned and taxed at its fair market value, i. e., what it would bring at cash sale when sold in such manner as it is usually sold. Park’s Annotated Code of Georgia (1914), §§ 1002, 1002 a, 1003 and 1004. It is well settled that if the administration of the tax laws of a State is shown to result in an intentional and systematic discrimination against a complainant by a bill in a federal court, the court may grant relief by injunction under the state law without deciding the federal constitutional question upon which jurisdiction of the bill is based. Louis. & Nash. R. R. v. Greene, 244 U. S. 522, 527; Greene v. Louisville R. R., 244 U. S. 499, 508, 514-519; Taylor n. L. & N. R. R., 88 Fed. 350; Georgia Railroad v. Wright, 125 Ga. 589, 602, 603. Complainant’s evidence to show that the valuation of real and personal property by the county officials was far below the market value in Richmond County and throughout the State of Georgia, is convincing. It consists of reports and admissions by the Comptroller General and the State Tax Commissioner, the chief taxing officers of the State, and of the testimony of past and present taxing officials of a great number of counties, BOHLER v. CALLAWAY. 487 479 Opinion of the Court. eating the contrary. That was a bill in equity by a bridge company to enjoin a tax assessment by county assessors on a railroad bridge, because of discrimination. The- assessment made by the county assessors was subject to revision by a board of review, required to give a hearing and to correct the assessment as should appear just. The payment of taxes was not to be enforced by distraint or levy, but by legal proceedings in a civil suit for the collection of a debt in which the owner might appear and defend on any legal ground, including discrimination. The complainant there brought his bill without taking any of the steps offered by the statute as an administrative remedy, and ignored the defense he might make in the suit to collect the tax. The question here is different. The remedy to be taken by the taxpayer against excessive assessment is by petition in equity. That is a judicial proceeding. Such a proceeding is not administrative, as the appeal to the Supreme Court was in the case of Prentis n. Atlantic Coast Line Co., 211 U. S. 210. Nothing in the Georgia decisions shows that the petition here provided was other than a regular application to a court of equity for relief by injunction. Nothing indicates that the court was to make administrative assessment. It was only to enjoin excessive assessment. No reason existed why a federal court sitting in the same jurisdiction might not grant equitable relief to the taxpayer against the executions on the assessments, provided there were stated in the bill ground for federal equity jurisdiction. This was a suit of a civil nature under § 247 of the Judicial Code, and arose under the Constitution of the United States. It was properly in equity because there was no adequate remedy at law, the assessments being final except as subject to equitable intervention. The Georgia law gives no right of action to recover taxes voluntarily paid, even under protest on the ground that they were illegally assessed and collected. 490 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. some having large cities, and others without such cities, in different parts of the State. In his report of 1920, the State Tax Commissioner said he thought it wise not to require more than 35 per cent, of the true value of real estate as a minimum basis for equalizing purposes, and he finally approved a comparative statement of counties showing the highest per cent, of true value of lands returned to be 60 and the lowest 25. The evidence further showed that the assessment of intangible personalty was at a much less percentage of true value than that of real estate. The fact seemed to be that stocks and bonds were not generally returned at all, and when they were returned they were assessed at a mere nominal figure. The condition in respect to the low valuations was attributed by several of the taxing officials, who were witnesses for the complainant, in part to the arbitration method. They said that if they attempted to impose anything like the real value, an arbitration was demanded, and the invariable result was a reduction of the assessment, so that there had come to be a generally understood acquiescence by county officials in low percentages. It was quite apparent that the undervaluation of both realty and personalty by county taxing officials in Richmond County and elsewhere in Georgia had become systematic and intentional. It would seem from the evidence and the reports that not more than 10 per cent, of stocks and bonds was taxed at all. The Comptroller General’s report for 1912 said that the system of assessment of such property was but little better than voluntary contributions of taxpayers to State’s revenue. The recognition of these conditions seems to have led equalizers and assessors in fairness to scale down the assessment of stocks and bonds when returned. Hence, we find that the Board of Tax Assessors of Richmond County, a body whose duty it was to receive the regular annual returns from the tax receiver and equalize them as between individuals, Park’s 479 BOHLER v. CALLAWAY. Opinion of the Court. 491 Annotated Code (1914) § 1116 (k), in determining the value of the White estate for taxing purposes for 1918—a current assessment the next year after those here in suit— fixed the value of the same stocks and bonds and intangibles at $250,000, or about 18 per cent, of their market value. Two of the assessors by affidavit testified from their experience that such percentage was at a higher rate than that at which such property when returned was usually assessed. The tax receiver who returned the property in this case at its full market value for the seven years, testified before the Board of Arbitration that neither he nor the Board of Appraisers had ever taxed real estate at more than two-thirds of its value, mortgages or stocks at more than 50 per cent., and county property at more than 33^ per cent. Objection is made to the testimony of tax officials in this case, especially to that of the tax receiver who fixed the 100 per cent, assessment in the present case, and to that of the members of the Board of Tax Assessors and Equalizers who assessed the value of the White estate for the year 1918. It is based upon the language of this Court in C. B. & Q. Ry. v. Babcock, 204 U. S. 585, 593. We do not think that the citation has application here. That was a case where members of a state railway assessing board were called by the taxpayers and subjected to an elaborate cross-examination with reference to the operation of their minds in valuing and taxing the particular railroads whose assessment was there in question. It was held to be improper thus to impeach official awards. The witnesses in this case were not subjected to cross-examination as to the reasons for their official action in this case. They were called because they were men of long experience in assessing property in the county and State to testify to the existence of a systematic and intentional undervaluation of the property of others—of property generally. 492 OCTOBER TERM, 19*24. Opinion of the Court. 267 U. S. The court, in reaching a conclusion as to the percentage to which the valuation here should be reduced in order fairly to avoid discrimination, fixed 25 per cent., the same as that in the award of the Board of Arbitration. It is insisted that the action of the board, because its power to make an award was abolished by the law of 1918, wras not admissible evidence. It is quite true that the award might be of doubtful competency if offered as independent evidence, but the fact that the award was made an issue in the pleadings and evidence and was a part of the record, suggests a difference. But even if it ought not to have been considered, the other evidence sustaining the conclusion of the court was ample. The evidence which the defendants offered was of a stereotyped character from the state and county officials of many counties, in which it was said that they all struggled to obey the law; but nothing which was said by them was any real contradiction of the affidavits already referred to, or of the reports of the state officials already commented on. There only remains to consider the question of interest made by the executor on his cross appeal. The District Court exacted interest on the amount found to be due and which the executor admitted to be due, from the time of the first tender by him at the time of the award of the arbitrators until the final tender some three years later when the amendment to the bill was filed. We think this was right. The tenders of the complainant were with a condition attached, namely that the money to be received was to be received in full payment of the claim. The complainant had no right to impose such limitation. If he owed the money, as he admitted he did, he should have paid it without restriction, and his withholding it for three years requires that he pay interest on it during the time of detention. Decree affirmed. WESTERN & ATLANTIC v. PUBLIC COMM. 493 Counsel for Parties. WESTERN & ATLANTIC RAILROAD v. GEORGIA PUBLIC SERVICE COMMISSION ET AL. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF GEORGIA. No. 209. Argued January 20, 1925.—Decided April 13, 1925. 1. A rule of a state public service commission that railroad switching service to which shippers are entitled by law or by rule of the commission, whether or not granted voluntarily by the railroad, shall not be discontinued without the consent of the commission after notice and hearing, is reasonable and within the police power of the State. P. 496. 2. An order of a state commission requiring a railroad to continue to furnish switching service to a shipper on an established industrial siding does not deprive the railroad of property without due process, in violation of the Fourteenth Amendment, merely because the switching, separately considered, may not be profitable to the railroad, or may even involve a loss. P. 496. 3. Under § 402 of the Transportation Act, 1920, the power to order establishment or abandonment of such side tracks, though employed largely for interstate commerce, is not with the Interstate Commerce Commission but with the States. P. 497. 4. A bill to enjoin a state commission from enforcing an order requiring the plaintiff railroad to maintain service on an industrial switch track, will not lie upon the ground that the service creates undue discrimination between interstate shippers in cost of transportation, since this is a question which must be presented to the Interstate Commerce Commission. P. 497. Affirmed. Appeal from a decree of the District Court- refusing a temporary injunction in a suit to restrain the appellee commission from enforcing an order requiring the appellant railroad to maintain service on an industrial side track. Mr. Fitzgerald Hall, with whom Messrs. H. C. Peeples, Frank Siemens, and William Waller were on the brief for the appellant. Mr. W. E. Watkins, for appellees. 494 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. Mr. Chief Justice Taft delivered the opinion of the Court. The Western & Atlantic Railroad Company, an interstate common carrier, filed this bill in the District Court of the United States for the Northern District of Georgia against the Georgia Public Service Commission and its members, to enjoin the enforcement of an order of the Commission requiring the railroad to furnish switching service on an industrial siding to the National Bonded Warehouse, Inc., of Atlanta, Georgia. In accordance with the limitations of § 266 of the Judicial Code, an application was made for a temporary injunction to a court consisting of a Circuit and two District Judges. The application was denied and this appeal was taken. The industrial siding in question diverges from the main line of the Railroad Company, and was built many years ago for the convenience of industries then located on it. At the present time J. K. Shippey and the National Bonded Warehouse are the only industries served by it. The siding is all upon the right of way of the Railroad Company. On August 2, 1923, the Railroad Company notified the Warehouse Company, that unless it signed a standard form of contract in respect to the sidetrack, its use and maintenance, which had been submitted to it, the service would be discontinued after August 15th. The Warehouse Company made complaint to the Public Service Commission. The Commission advised the Railroad Company that no application from the Company had been made to the Commission for such authority, which, under its Rule 14, was necessary before the service could be discontinued. However, on August 28th a full hearing was held by the Commission with the parties present, and as a result of such hearing it was ordered that, effective WESTERN & ATLANTIC v. PUBLIC COMM. 495 493 . Opinion of the Court. immediately on receipt of the order, the Railroad Company should restore the service. Thereupon this bill was filed. The bill avers that the Warehouse Company’s premises are two city blocks, or 1600 feet, from the Railroad’s public team tracks, which are adequate in size and construction conveniently and properly to handle all the public business, including that of the Warehouse Company; and that since the discontinuance of switching service on August 15th, conformably to the notice given, the Railroad has been ready to serve that industry on public team tracks; and that industrial sidings like the one in question have been put in without any care to avoid undue discrimination between interstate, shippers in cost of transportation. It says that of the business done over the side track 85 per cent, is interstate. The Railroad Company therefore avers that if it does not continue the service as required by the order, it will be subject to penalty under the Georgia state law, and that if it obeys the order it will be guilty of undue discrimination under the interstate commerce law, and so will be subject to a heavy penalty in the federal jurisdiction. The bill further alleges that the side track is out of repair and that in order to put it in proper condition it will require an expenditure of $440, that the receipts from the switching are but a small part of the cost of it and that enforced compliance with the order will thus deprive the Company of its property without due process of law. The order made by the Commission was based on its General Order 14, promulgated December 23, 1909, which provided that any and all facilities and privileges enjoyed by shippers to which they were entitled by law or any rule of the Commission, whether granted by voluntary action on behalf of the railroad companies or otherwise, should not be discontinued without the consent of the Railroad Commission. 496 OCTOBER TERM, 1924 Opinion of the Court . 267 U. S. The three-judge court refused the application, on the ground that Rule 14 had not been complied with. Rule 14 is a reasonable rule and the Commission was fully justified in refusing to sanction a discontinuance of service until a petition had been filed with the Commission and a showing made. The doubt which arises in our minds is whether the Public Service Commission, by its consent to a full hearing of the issue without a formal petition and an order based on the merits, did not waive the defect of a petition. The action of the Company in discontinuing the service without a petition was arbitrary and defiant, but the subsequent action of the Commission seems to have condoned the fault in such a way as to prevent our making it a reason for not looking farther into the issues now raised by the Company in its bill. It is said that the requirement of the continuance of the service deprived the Company of its property without due process of law, in violation of the Fourteenth Amendment, because the service rendered by the sidetrack was much greater in out-of-pocket cost than the compensation. This can not be sustained. The service has been rendered for years. It was a voluntary arrangement, and under its statutory powers (§ 2664, Georgia Code, 1910) was made irrevocable by the Public Service Commission under Rule 14, except by consent of the Commission. The spur track was for a public purpose. Union Lime Co. n. C. & N. W. Ry. Co., 233 U. S. 211. The requirement that such a service should not be discontinued without notice and hearing was clearly within the police power of the State. Chicago & Northwestern R. R. Co. v. Ochs, 249 U. S. 416; Lake Erie & Western R. R. Co. v. Cameron, 249 U. S. 422; Railroad Commission v. L. & N. R. R. Co., 148 Ga. 442. Even if the cost of the switching is more than what is received for it, we can not determine on any showing made by the Company that the switching does not work a benefit WESTERN & ATLANTIC v. PUBLIC COMM. 497 493 Opinion of the Court. in the increased business that the Company gets, or may get, by reason of the added facilities furnished by the switching. The switch is a small part of the whole railway, and the mere fact that the switching may not be profitable by itself can not be held to be a confiscation of property, even if it involves a loss. See Fort Smith Light & Traction Company v. Bourland, 267 U. S. 330. It seems to be the contention of the Company that, since 85 per cent, of the business done on the side track is interstate commerce, the power to order its establishment or abandonment is vested in the Interstate Commerce Commission, and that the state commission is without authority in the premises. Such a claim is in the teeth of the Transportation Act of 1920, 41 Stat. 456, c. 91, § 402, par. 22, which provides that the authority of the commission conferred by § 402 over the extension or abandonment of interstate railway lines shall not extend to the construction of spur industrial or side tracks. See Railroad Commission n. Southern Pacific Co., 264 U. S. 331, 345. The question whether the continuance of the service on this industrial track violates the Interstate Commerce Act as unduly discriminatory, is one that involves issues not primarily for the courts, but is for the Interstate Commerce Commission. It requires a consideration by experts of the benefit of the use of such a siding as compared with that of other sidings, in connection with the rates in interstate commerce, to determine whether there is undue discrimination between shippers. The Railroad Company is therefore in no position to appeal to the courts on this ground until it has invoked the investigation and decision of the Interstate Commerce Commission upon the concrete facts in a proper manner. See Great Northern Railway v. Merchants Elevator Co., 259 U. S. 285, 291, and the cases cited on page 295. If 42684 °—25-----32 498 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. and when the Commission shall have made such an investigation and have found the existence of undue discrimination, its order may well not be a specific direction against a continuance of service on a particular siding, but an order upon the Company to remove the undue discrimination between interstate shippers, giving discretion to the Company to adopt a satisfactory method of meeting the requirement. Compare Houston & Texas Railway v. United States, 234 U. S. 342, 360; American Ry. Express n. Caldwell, 244 U. S. 617, 624. In any event, relief can not be had by this bill, on the ground of undue discrimination, at the present stage of the controversy. Affirmed. STEELE v. UNITED STATES No. 1. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 235. Argued March 11, 1925.—Decided April 13, 1925. 1. Description, in a search warrant, of a building as a garage used for business purposes, giving its street and one of its two house numbers, held sufficiently definite, under the circumstances, for search of the whole building, which had three street entrances, and means of access between its parts on the ground and upper floors, and was used in conducting an automobile garage and storage business. P. 502. 2. A search warrant sufficiently describes the place to be searched if it enables the officer, with reasonable effort, to identify it. P. 503. 3. A warrant authorizing search of a building used as a garage, and any building or rooms connected or used in connection with the garage, held to justify search of the upper rooms connected with the garage by elevator. P. 503. 4. Search of rooms in a building used by a business held not unlawful under Prohibition Act § 25, because one of the rooms, not searched and in which no liquor was found, was slept and cooked in by an employee of the business. P. 503. STEELE v. UNITED STATES NO. 1. 499 498 Opinion of the Court. 5. Description of articles to be searched for as “ cases of whiskey ” held sufficient. P. 504. 6. Where an experienced prohibition agent saw cases labeled " whiskey”, which looked to him like whiskey cases, being unloaded at a building which, as he ascertained, had no permit to store whiskey, there was probable cause for warrant and seizure. P. 504. Affirmed. Appeal from a judgment of the District Court refusing to vacate a search warrant, under which the appellant’s premises were searched and quantities of whiskey, gin and alcohol were found and seized. See also the next case, post, p. 505. Mr. Meyer Kraushaar, for appellant. Solicitor General Beck, Assistant Attorney General Willebrandt, and Mr. Mahlon D. Kiefer, Special Assistant to the Attorney General, were on the brief for the United States. Mr. Chief Justice Taft delivered the opinion of the Court. This is an appeal, under § 238 of the Judicial Code, direct from the District Court, being a case involving the application of the Federal Constitution. The judgment complained of denied a petition of Steele for an order vacating a search warrant, by authority of which Steele’s premises were searched and a large amount of whiskey and other intoxicating liquor was found and seized. He contends that the search warrant violated the Fourth Amendment, because not issued upon probable cause, and not particularly describing the place to be searched or the property to be seized; and because the search conducted under the warrant was unreasonable. The affidavit for search warrant was as follows: “Southern District of New York, ss: “ Isidor Einstein, being duly sworn, deposes and says: I am a General Prohibition Agent assigned to duty in 500 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. the State of New York. On December 6, 1922, at about 10 o’clock A. M., accompanied by Agent Moe W. Smith, I was standing in front of the garage located in the building at 611 West 46th Street, Borough of Manhattan, City and Southern District of New York. This building is used for business purposes only. I saw a small truck driven into the entrance of the garage and I saw the driver unload from the end of the truck a number of cases stencilled whiskey. They were the size and appearance of whiskey cases and I believe that they contained whiskey. A search of the records of the Federal Prohibition Director’s office fails to disclose any permit for the manufacture, sale or possession of intoxicating liquors at the premises above referred to. “ The said premises are within the Southern District of New York and upon information and belief, have thereon a quantity of intoxicating liquor containing more than one-half of one per cent of alcohol by volume, and fit for use for beverage purposes, which is used, has been used and is intended for use in violation of the Statute of the United States, to wit, the National Prohibition Act. “ This affidavit is made to procure a search warrant, to search said building at the above address, any building or rooms connected or used in connection with said garage, the basement or sub-cellar beneath the same, and to seize all intoxicating liquors found therein. 11 Isidor Einstein. “ Sworn to before me this 6th day of December, 1922. Sami. M. Hitchcock, U. S. Commissioner, Southern District of New York.” The search warrant issued by the Commissioner followed the affidavit in the description of the place and property to be searched and seized and was directed to Einstein as General Prohibition Agent. Section 25, Title II, of the National Prohibition Act, c. 85, 41 Stat, 305, 315, provides for the issue of a search STEELE v. UNITED STATES NO. 1. 501 498 Opinion of the Court. warrant to seize liquor and its containers intended for use in violating the Act, and provides that the search warrant shall be issued as provided in Title XI of the Espionage Act of June 15, 1917, c. 30, 40 Stat. 217, 228. Under that Title, in conformity with the Fourth Amendment, the warrant can be issued only upon probable cause, supported by affidavit, particularly describing the property and place to be searched. The judge or commissioner must before issuing the warrant examine on oath the complainant and any witness he may produce, and require their affidavits or take their depositions in writing and cause them to be subscribed by the parties making them. The affidavits or depositions must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist. If the judge or commissioner is satisfied of the existence of the grounds for the application, or that there is probable cause to believe their existence, he must issue a search warrant, signed by him with his name of office, to a civil officer of the United States duly authorized to enforce or assist in enforcing any law thereof, stating the particular grounds or probable cause for its issue and the names of the persons whose affidavits have been taken in support thereof, and commanding him forthwith to search the person or place named, for the property specified, and to bring it before the judge or commissioner. If the grounds on which the warrant was issued be controverted, the judge or commissioner must proceed to take testimony in relation thereto, and the testimony of each witness must be reduced to writing and subscribed by each witness. If it appears that the property taken is not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the judge or commissioner must cause the property to be restored to the person from whom it was taken; but if it appears that the 502 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. property taken is the same as that described in the warrant, and that there is probable cause for believing the existence of the grounds on which the warrant was issued, then the judge or commissioner shall order the same retained in the custody of the person seizing, or to be otherwise disposed of according to law. The facts developed before the Commissioner on hearing this petition for return of the seized goods were these: Einstein and Moe Smith were prohibition agents. They saw a truck depositing cases in a garage on the opposite side of 46th Street from where they were. Einstein crossed the street and saw they were cases stenciled as whiskey. Einstein left his companion to remain in the neighborhood until he could get the warrant, and in somewhat more than an hour returned with it and made the seizure. The building searched was a four-story building in New York City on the south side of West 46th Street, with a sign on it: “ Indian Head Auto Truck Service—Indian Head Storage Warehouse, No. 609 and 611.” It was all under lease to Steele. It was entered by three entrances from the street, one on the 609 side, which is used, and which leads to a staircase running up to the four floors. On the 611 side there is another staircase of a similar character, which is closed, and in the middle of the building is an automobile entrance from the street into a garage, and opposite to the entrance on the south side is an elevator reaching to the four stories, of sufficient size to take up a Ford machine. There is no partition between 611 and 609 on the ground or garage floor, and there were only partial partitions above, and none which prevented access to the elevator on any floor from either the 609 or 611 side. The evidence left no doubt that, though the building had two numbers, the garage business covering the whole first floor and the storage business above were of such a character and so related to the elevator that there was no real STEELE v. UNITED STATES NO. 1. 503 498 Opinion of the Court. division in fact or in use of the building into separate halves. The places searched and in which the liquor was found were all rooms connected with the garage by the elevator. One of them was a room on the second floor with a door open toward the elevator, in which, when Einstein made his search, three men were bottling and corking whiskey. There was a room on one of the floors, flimsily boarded off, in which an employee had a cot and a cook stove. The prohibition agents seized 150 cases of whiskey, 92 bags of whiskey, and one 5-gallon can of alcohol, on the third floor on the 609 side. On the second floor, 33 cases of gin were seized on the 609 side and six 5-gallon jugs of whiskey, 33 cases of gin, 102 quarts of whiskey, and two 50-gallon barrels of whiskey, and a corking machine, were taken on the 611 side of the building. The description of the building as a garage and for business purposes at 611 W. 46th Street clearly indicated the whole building as the place intended to be searched. It is enough if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended. Rothlisberger v. United States, 289 Fed. 72; United States v. Borkowski, 268 Fed. 408, 411; Commonwealth n. Dana, 2 Mete. 329, 336; Met cal j v. Weed, 66 N. H. 176; Rose n. State, 171 Ind. 662; MeSherry v. Heimer, 132 Minn. 260. Nor did the search go too far. A warrant was applied for to search any building or rooms connected or used in connection with the garage, or the basement or sub-cellar beneath the same. It is quite evident that the elevator of the garage connected it with every floor and room in the building and was intended to be used with it. The attempt to give the building the character of a dwelling house by reason of the fact that an employee slept and cooked in a room on one of the floors was of 504 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. course futile. Section 25 of the Prohibition Act forbids the search of any private dwelling unless it is used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose, such as a store, shop, saloon, restaurant, hotel or boarding house. It provides that 11 private dwelling ” is to 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. Certainly the room occupied in this case was not a private dwelling within these descriptions, but more than this, it was not searched and no liquor was found in it. Fomi v. United States, 3 Fed. (2d) 354. The search warrant properly described the building searched as a garage and one for business purposes. Then it is said that the property seized was not sufficiently identified in the warrant. It was described as “ cases of whiskey,” and while there is no evidence specifically identifying the particular cases which were seized as those which Einstein saw, the description as “ cases of whiskey ” is quite specific enough. Elrod n. Moss, (C. C. A. 4th) 278 Fed. 123, 129; Sutton v. United States, 289 Fed. 488 (C. C. A. 5th); Tynan v. United States, 297 Fed. 177 (C. C. A. 9th); Fomi n. United States, 3 Fed. (2d) 354 (C. C. A. 9th). Finally it is said there was no probable cause for the warrant and the seizure. Einstein, a man of experience in such prosecutions and in such seizures, saw the name “ whiskey ” stenciled on cases and said they looked like whiskey cases. He ascertained by his own investigation of the official records that there was no permit for the legal storage of whiskey on these premises. In a recent case we have had occasion to lay down what is probable cause for a search. Carroll v. United States, 267 U. S. 132. “ If the facts and circumstances before the officer’ are such as to warrant a man of prudence and caution in STEELE v. UNITED STATES NO. 2. 505 498 Syllabus. believing that the offense has been committed, it is sufficient.” What Einstein saw and ascertained was quite sufficient to warrant a man of prudence and caution and his experience in believing that the offense had been committed of possessing illegally whiskey and intoxicating liquor, and that it was in the building he described. The search warrant fully complied with the statutory and constitutional requirements as set forth above, the liquor was lawfully seized and the District Court rightly held that it should not be returned. The decree is affirmed. Affirmed. STEELE v. UNITED STATES No. 2. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 636. Argued March 11, 1925.—Decided April 13, 1925. 1. A judgment upholding a search warrant on a petition to vacate it is res judicata as to the competency of the person to whom the warrant was directed and as to probable cause for its issuance; so that the petitioner cannot subsequently raise the question in a criminal proceeding against him by objecting to evidence of seizure under the warrant. P. 507. 2. Section 6 of Title XI of the Espionage Act, adopted in the Prohibition Act (Title II, § 25), authorizes a search warrant to be issued “ to a civil officer of the United States duly authorized to enforce or assist in enforcing any law thereof”—Held, that this is not meant to be confined to officers of the United States in the limited Constitutional sense, but includes a general prohibition agent appointed by the Commissioner of Internal Revenue. P. 507. 3. In a prosecution for illegal possession of intoxicating liquor, in which the results of a seizure under a search warrant are offered against the defendant, the court, in deciding upon the competency of the evidence, determines whether under the facts'and law there was probable cause for the warrant, and this question is not for the jury. P. 510. Affirmed. 506 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. Error to a sentence under the National Prohibition Act. See also the case preceding, ante, p. 498. Mr. Meyer Kraushaar, for plaintiff in error. Solicitor General Beck, Assistant Attorney General WUlebrandt, and Mr. Mahlon D. Kiefer, Special Assistant to the Attorney General, were on the brief for the United States. Mr. Chief Justice Taft delivered the opinion of the Court. This is a direct writ of error under § 238 of the Judicial Code to a conviction in the District Court of John F. Steele on an information in the District Court, for unlawfully, willfully and knowingly possessing a quantity of intoxicating liquor in violation of the National Prohibition Act. The prosecution grew out of the seizure of whiskey and gin upon a search warrant, at 611 West 46th Street, New York City, the validity of which we have had occasion to examine in the case just preceding. The question here is as to the competency of the evidence of seizure under the search warrant which we there found sufficient. In addition to the grounds urged in the last case, the validity of seizure is attacked because the search warrant was issued to a general prohibition agent, when under § 6 of Title XI of the Espionage Act of June 15, 1917, (c. 30, 40 Stat. 217, 228), such a warrant must be issued “to a civil officer of the United States duly authorized to enforce or assist in enforcing any law thereof.” The argument is that the prohibition agent is appointed by ,the Commissioner of Internal Revenue, and therefore is only an employee and not a civil officer of the government in the constitutional sense, because such an officer under Article 2, Section 2 of the Constitution 505 STEELE v. UNITED STATES NO. 2. 507 Opinion of the Court. can only be appointed either by the President and the Senate, the President alone, the courts of law or the heads of departments. It should first be said that Steele is not in a position to raise this question. He might have raised it in the preceding case, but he did not do so, and did not assign error on account of it in his appeal to this Court. The refusal to vacate the search warrant and to return the liquor seized was a final decree. The question is therefore res judicata as against him. But even if this were not so, we do not think the objection well taken. We think that the expression “ civil officer of the United States duly authorized to enforce, or assist in enforcing, any law thereof,” as used in the Espionage Act, does not mean an officer in the constitutional sense; that Congress in incorporating the provision in § 25, Title II, of the National Prohibition Act, did not so construe it and had no intention thus to limit persons authorized to receive and serve search warrants. It is quite true that the words “ officer of the United States,” when employed in the statutes of the United States, is to be taken usually to have the limited constitutional meaning. Burnap v. United States, 252 U. S. 512; United States n. Mouat, 124 U. S. 303; United States v. Smith, 124 U. S. 525. But we find that this Court in consideration of the context has sometimes given it an enlarged meaning and has found it to include others than those appointed by the President, heads of departments, and courts. United States v. Hendee, 124 U. S. 309. The emphasis of the words of description in the Espionage Act is really on the limitations that the person designated shall be a civil and not a military agent of the government and shall be one “ duly authorized to enforce or assist in enforcing any law of the United States.” It is not to be supposed that Congress wished to exclude from those empowered to' receive and execute 508 OCTOBER TERM, 1924. Opinion of the Court. 267 U. 8. search warrants persons usually called officers who are in their duties most widely employed to enforce or assist in enforcing laws. Thus deputy marshals of the United States are appointed by the United States marshal under whom they serve (§ 780, Revised Statutes), and he and his deputies have in each State the same power in executing the laws of the United States as the sheriffs and their deputies in such State in executing the laws thereof. The deputy marshal is not in the constitutional sense an officer of the United States, and yet marshals and deputy marshals are the persons chiefly charged with the enforcement of the peace of the United States, as that is embraced in the enforcement of federal law. In re Neagle, 135 U. S. 1, 68, 69. A deputy marshal is engaged in serving all sorts of writs and is called upon to exercise great responsibility and discretion in the service of some of them in dealing with the persons and property of individuals and in the preservation of their constitutional rights. The'same thing may be said of deputy collectors of customs. Under § 2630, a collector of customs, with the approval of the Secretary of the Treasury, may employ within his district such number of proper persons as deputy collectors of customs as he shall deem necessary, and such deputies are declared to be officers of the customs, and the collector may exercise his powers and perform his duties by deputy. And one of the chief functions of the collectors of customs and of the deputy collector is the seizure of goods which have not paid a tax, as seen by Chapter 10 of Title 34 of the Revised Statutes. Deputy collectors of internal revenue are to be appointed by the Collector of Internal Revenue; § 3148 R. S. He may appoint as many as he thinks proper. Each deputy is to have the like authority which by law is vested in the collector himself, and distraint and seizure in the assessment and collection of taxes are authorized by Ch. 2, Title 35: 505 STEELE v. UNITED STATES-NO. 2. 509 Opinion of the Court. The National Prohibition Act in Title I, § 5, reads: “ The Commissioner of Internal Revenue, his assistants, agents, and inspectors, and all other officers of the United States whose duty it is to enforce criminal laws, shall have all the power for the enforcement of the War Prohibition Act or any provisions thereof which is conferred by law for the enforcement of existing laws relating to the manufacture or sale of intoxicating liquors under the laws of the United States.” Title II, § 28, is: 11 The Commissioner, his assistants, agents, and inspectors and all other officers of the United States whose duty it is to enforce criminal laws shall have all the power in the enforcement of this act or any provisions thereof which is conferred by law for the enforcement of existing laws relating to the manufacture or sale of intoxicating liquors under the law of the United States.” Section 3462 of the Revised Statutes is one of the laws thus referred to in the foregoing sections, and provides: “ That the several judges of the circuit and district courts of the United States and commissioners of the circuit courts, may, within their respective jurisdictions, issue a search-warrant, authorizing any internal revenue officer to search any premises within the same, if such officer makes oath in writing that he has reason to believe, and does believe, that a fraud upon the revenue has been or is being committed upon or by the use of said premises.” Again, Title II, § 1, of the Prohibition Act, reads: “Any act authorized to be done by the commissioner may be performed by any assistant or agent designated by him for that purpose.” Again, Title II, § 26, reads: “ When the commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting, in violation of the law, intoxicating liq- 510 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. uors in any wagon, buggy, automobile, water or air craft or other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law.” The foregoing would seem to indicate that lawful seizures were not to be confined to constitutional officers. Again, in § 6 of the Act Supplemental to the National Prohibition Act, 42 Stat. 222, it is provided that any officer, agent or employee of the United States engaged in the enforcement of this Act or the National Prohibition Act, or any other law of the United States, who shall search any private dwelling as defined in the National Prohibition Act, without a warrant directing such search, shall be guilty of a misdemeanor. This justifies an inference that Congress expected searches to be made with search warrants by officers, agents or employees. The question whether a prohibition agent has the power and right to serve a search warrant as provided in the Espionage Act, and § 25 of Title II of the National Prohibition Act, has led to some difference of opinion among the judges of the Circuit Courts of Appeals and also of the District Courts, but the weight of authority as indicated by the decisions is strongly in favor of the broader construction which vests the power and duty to receive and serve a search warrant in prohibition agents appointed by the Commissioner of Internal Revenue. Raine v. United States, 299 Fed. 407 (C. C. A. 9th); Keehn v. United States, 300 Fed. 493 (C. C. A. 1st); United States v. American Brewing Co., 296 Fed. 772; United States v. O’Connor, 294 Fed. 584; United States v. Syrek, 290 Fed. 820; United States v. Keller, 288 Fed. 204. The second question which is raised here by proper exception and assignment is whether the defendant had the right to have submitted to the jury the issue of fact SANTA FE PAC. R. R. v. WORK. 511 * 505 Syllabus. whether there was probable cause to issue the warrant, with direction that if the jury found that there was not probable cause, it should ignore the evidence resulting from the seizure and acquit the defendant. There are two answers to this assignment of error. One has already been referred to, that the fact of the existence of probable cause in the issue of the search warrant was res judicata, made so by the judgment of the court in the case preceding that the property could not be returned to Steele. The second answer is that the question of the competency I of the evidence of the whiskey by reason of the legality or otherwise of its seizure was a question of fact and law for the court and not for the jury.. Gila Valley Ry. Co. v. Hall, 232 U. S. 94, 103; Bartlett v. Smith, 11 M. & W. 483; Doe dem. Jenkins v. Davies, 10 Ad. & El. N. S. 314; • | 5 Wigmore, Evidence (2d Ed.) § 2550. The judgment of the District Court is affirmed. 1 Affirmed. ! ----------------- « SANTA FE PACIFIC RAILROAD COMPANY v. ’ WORK, SECRETARY OF THE INTERIOR. I APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. No. 302. Argued March 18, 19, 1925.—Decided April 13, 1925. 1. The construction of a law of the United States was “drawn in question by the defendant” within the meaning of § 250, par. 6 of the Judicial Code permitting appeals to this Court from the Court of Appeals of the District of Columbia, where the Secretary of the Interior, as defendant, secured the dismissal of plaintiff’s bill upon the ground that the lieu land selection in controversy was not permitted by an Act of Congress. P. 515. 2. Under the Act of June 22, 1874, providing that railroads may relinquish lands appertaining to their land grants which are found in possession of actual settlers, etc., and select an equal quantity of other lands in lieu thereof from any of the public lands “not mineral ” within the limits of the grant, not otherwise appropriated 512 OCTOBER TERM, 1924. Argument for Appellant. 267 U. S. at the date of selection, “ to which they shall receive title the same as though originally granted,” a railroad company is not entitled to lieu-select coal land, even though coal and iron lands are not excluded from its land grant but are declared therein not to fall within the term “ mineral.” P. 516. 54 App. D. C. 161; 295 Fed. 982, affirmed. Appeal from a decree of the Court of Appeals of the District of Columbia, which affirmed a decree of the Supreme Court of the District, dismissing a bill to restrain the Secretary of the Interior from canceling a railroad lieu selection. Mr. F. W. Clements, with whom Mr. Alexander Britton was on the brief, for appellant. In determining what is meant by “public lands not mineral,” as used in the act of June 22, 1874, that act must be construed as in pari materia with the granting act; and when so construed, the lands are considered as non-mineral notwithstanding the presence of valuable deposits of coal. There is nothing in the act of 1874 limiting the selection of lands in lieu of those relinquished to other “ lands equal in quantity and value,” as said by the court below.' Congress undoubtedly had a defined policy in permitting the large transcontinental railroads to take under their grants lands containing iron or coal products. These railroads were great undertakings opening up country practically unexplored, and coal and iron were necessary products, not only in construction, but in later maintenance of the proposed railways. Nothing had occurred to change this policy, and the construction of the act of ’74 should be in line with the constructive policy so clearly defined in the original granting acts; and surely the generosity of the companies in relinquishing that which belonged to them, in order to protect unfortunates misled, furnishes no reason for changing this policy or penalizing the companies. SANTA FE PAC. R. R. v. WORK. 513 511 Opinion of the Court. The act of 1874 provided that the grantee company should receive title to the lieu selection as though originally granted. In other words, the lieu lands were to be taken in place of those surrendered, as the surrendered lands might have been taken under original grant. This left both the companies and the individual as though the provision protecting those coming after definite location had been incorporated in the original grant. Nothing could be fairer, and if this were the purpose of Congress it could not have been more clearly expressed. The granting act of 1866 permits selection within the enlarged or indemnity belt of lands containing valuable deposits of coal where taken in lieu of agricultural lands lost within the primary or place limits of the grants. The Secretary’s action in refusing to approve the Company’s selection is arbitrary, in that he exceeded his power and authority in taking into consideration in determining its validity the facts with respect to the possible coal contents and the valuation of the lands in that regard. Mr. Harry L. Underwood, Special Assistant to the Attorney General, with whom Solicitor General Beck and Assistant Attorney General Wells were on the brief, for the appellee. Mr. Chief Justice Taft delivered the opinion of the Court. The bill in this case was filed by the Santa Fe Pacific Railroad Company, incorporated under an Act of Congress, against the Secretary of the Interior to enjoin him from canceling a certain selection of lieu lands, and to command him to recall the order for such cancellation and to refrain from any further action except to issue a patent therefor in accordance with the rights of the plaintiff. '42684°—25-----------33 514 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. By Act of Congress, July 27, 1866, 14 Stat. 292, Congress made a grant of lands in New Mexico and Arizona to the Atlantic & Pacific Railroad Company in aid of the construction of a railroad of that name. The company defaulted on its bonds, the mortgage was foreclosed, and a sale effected to the Santa Fe Pacific Railroad Company, the complainant, which became possessed of all the rights granted by the Act of July 27, 1866, to the mortgagor company. The grant of 1866 covered every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of the railroad line, not reserved, sold, granted or otherwise appropriated, at the time that the line of the road was designated by the filing of a plat in the General Land Office. The granting act provided further that the word “mineral ” when it occurred in the Act should not be held to include iron or coal. The Act of June 22,1874, c. 400, 18 Stat. 194, provided: “That in the adjustment of all railroad land grants, whether made directly to any railroad company or to any State for railroad purposes, if any of the lands granted be found in the possession of an actual settler whose entry or filing has been allowed under the preemption or homestead laws of the United States subsequent to the time at which, by the decision of the land office, the right of said road was declared to have attached to such lands, the grantees, upon a proper relinquishment of the lands so entered or filed for, shall be entitled to select an equal quantity of other lands in lieu thereof from any of the public lands not mineral and within the limits of the grant not otherwise appropriated at the date of selection, to which they shall receive title the same as though originally granted. And any such entries or filings thus relieved from conflict may be perfected into complete title as if such lands had not been granted: Provided, That nothing herein contained shall in any manner be so 511 SANTA FE PAC. R. R. v. WORK. Opinion of the Court. 515 construed as to enlarge or extend any grant to any such railroad or to extend to lands reserved in any land grant made for railroad purposes.” Pursuant to this legislation, the Railroad Company, on December 1, 1921, filed in the proper local land office an application to select the subject of the controversy here, being a forty-acre tract, the quarter of a quarter section within the primary or place limits of the grant in Arizona, in lieu of a tract of the same area in the same limits which it had relinquished because of a homestead claim coming within the terms of the Act of 1874. The filing was accepted by the local land office, but was rejected by the Secretary of the Interior because the land applied for was embraced in a coal withdrawal. The view of the Secretary was that the Act of June 22, 1874, did not authorize the selection of coal land in lieu of the land relinquished. The argument of the Railroad Company is that as the granting Act of 1866 declared that 11 mineral ” in that act should not include coal or iron, the same construction should be given to the same word in the Act of June 22, 1874, in so far as selections made by the appellant are concerned. The Supreme Court of the District sustained a motion to dismiss the bill for want of equity, and this action was affirmed by the Court of Appeals. The question whether this Court has jurisdiction of the appeal is raised on behalf of the Secretary of the Interior. We think it has under the 6th paragraph of § 250 of the Judicial Code, which permits an appeal from the Court of Appeals of the District in cases “ in which the construction of any law of the United States is drawn in question by the defendant.” Certainly the Secretary of the Interior, as the defendant herein, by his contention that the Act of 1874 does not permit the Railroad Company to select lieu lands which are coal lands, draws in question the construction of a law of the United States. 516 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. The Act of 1874 was passed to help homestead and other settlers who were in hard case because they had established their settlement after the grant to the Railroad Company was held to have attached. The question when it did attach was for a long time doubtful and the subject of litigation. This Act of 1874 was intended to induce the railroad companies to relinquish such lands thus illegally occupied as against them by promising in lieu thereof other lands of equal area in both odd and even sections within the prescribed limits. The act applied not only to railroad grants in which the term “ lands not mineral” did not exclude iron or coal lands, as in this case, but also to similar grants, of which there were several, in which the phrase “ not mineral ” was used in its usual sense and excluded iron and coal. E. g., see grants to Union Pacific R. R. and Central Pacific, 12 St. 489, 492, c. cxx., § 3; Joint Resolution Jan. 30, 1865, 13 Stat. 567. It would seem to be impossible, therefore, to give a meaning to the phrase “ not mineral ” in the Act of 1874 which should mean including coal in some cases and excluding coal in others. More than this, the settlers who were to be aided by the Act of 1874 were those who made homestead or preemption filings. Coal lands were not subject to such entry or disposition. As the lands which the railroad companies were invited to relinquish could not be known coal lands, it is not to be inferred that Congress intended that the railroad companies should in compensation acquire coal lands by their lieu selections. This construction of the Act of 1874 accords with the action of the Department of the Interior since its passage. Not until this case had the precise question been mooted so as to invoke a formal decision of the Secretary; but the record discloses that it has been the uniform practice of the General Land Office in its printed forms furnished under the act to confine such lieu selections to lands not COOKE v. UNITED STATES. 517 511 Syllabus. known to contain coal, iron or other minerals, and that railroad companies generally have acquiesced therein by furnishing proofs of the non-coal and iron character of the land selected. It has also been insisted on behalf of the Secretary that the discretion vested in him by Congress in supervising the selection of lieu lands and in executing the laws of 1866 and 1874 is quasi judicial, and that it may not be controlled through mandamus or injunction by the Courts, unless his conclusion can be said to be capricious or arbitrary, or so unreasonable as not to be debatable. To sustain this claim, the cases of Riverside Oil Co. v. Hitchcock, 190 U. S. 316, 324; Ness v. Fisher, 223 U. S. 683, 692; Alaska Smokeless Coal Co. v. Lane, 250 U. S. 549, 555, and Hall v. Payne, 254 U. S. 343, and a number of earlier cases are cited. See Brown v. Hit chock, 173 U. S. 473, 478. It may be that the authority of these cases would require us to yield to the contention made on behalf of the Secretary in this regard. We are not, however, required to decide this point. The case against the construction of the Act of 1874 urged by the Railroad Company is so clear that we prefer to put our decision directly on the merits of that issue. Affirmed. COOKE v. UNITED STATES. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 311. Argued March 20, 1925.—Decided April 13, 1925. 1. On the day following a trial in the District Court in which a verdict had been rendered against his client, in a case in which other necessary proceedings remained pending, and while the court was engaged in trying another case, but during a short recess, an attorney at law addressed a letter, marked “ personal,” to the District Judge and caused it to be delivered to him at his chambers next the court room, in which the writer not only advised the 518 OCTOBER TERM, 1924. Statement of the Case. 267 U. S. judge of the desire of his client to have another judge try four other cases yet to be heard, and of his own desire to avoid the necessity of filing in those cases an affidavit of bias under § 21, Judicial Code, by inducing the judge voluntarily to withdraw, but also evinced his heat over the judge’s conduct in the case lately tried and characterized it in severe language personally derogatory to the judge. Held that in the latter aspects the letter was contemptuous. P. 532. 2. When a contempt is committed in open court, it may be adjudged and punished summarily upon the court’s own knowledge of the facts, without further proof, without issue or trial, and without hearing an explanation of the motives of the offender. Ex parte Terry, 128 U. S. 289. P. 534. 3. But where the contempt was not in open court, though constituting “misbehavior in the presence of the court ” within the meaning of Rev. Stats. § 725, due process of law requires charges and that the accused be advised of them and be given a reasonable opportunity to defend or explain, with the assistance of counsel, if requested, and the right to call witnesses in proof of exculpation or extenuation. P. 535. 4. Where the alleged contumacy was committed by sending a letter to the judge in chambers, and eleven days thereafter an order reciting the facts and adjudging contempt was entered and an attachment thereupon issued under which the accused was arrested forthwith and brought before the court and, upon admitting authorship of the letter, was pronounced guilty because of it and of extraneous facts referred to by the judge as in aggravation, and was forthwith punished, without being allowed to secure and consult counsel, prepare his defense and call witnesses, or to make a full personal explanation,—Held that the procedure was unfair and oppressive and not due process of law. P. 537. 5. Where conditions do not make it impracticable and the delay will not injure public or private rights, a judge, in a case of Contempt consisting of a personal attack upon himself, may properly ask that the matter be heard by a fellow judge. P. 539. 6. In this case, decided that the judge who imposed the sentence reversed should invite the Senior Circuit Judge of the Circuit to assign another judge to sit in the second hearing. P. 539. 295 Fed. 292, reversed. Clay Cooke and J. L. Walker were each sentenced for thirty days’ imprisonment for contempt by the United COOKE v. UNITED STATES. 519 517 Statement of the Case. States District Court for the Northern District of Texas. The case was taken on error to the Circuit Court of Appeals for the Fifth Circuit, which affirmed the sentence of Cooke and reversed that of Walker. By certiorari, Cooke’s sentence was brought here. Walker was defendant in a series of suits growing out of the bankruptcy of the Walker Grain Company. One of the cases, numbered 984, after a long jury trial resulted in a verdict against Walker of $56,000. The next day, while the court was open and engaged in the trial of another cause, and during a ten minutes’ recess for rest and refreshments, Walker, by direction of Cooke, delivered to the District Judge in his chambers, adjoining the court room, and within a few feet of it, a letter marked “ Personal ”, as follows: “ Fort Worth, Texas, February 15, 1923. “ Hon. James C. Wilson, Judge U. S. District Court, Fort Worth, Texas. “ Dear Sir: “ In re No. 985, W. W. Wilkinson, Trustee, vs. J. L. Walker; in re No. 986, W. W. Wilkinson, Trustee, vs. Mass. Bonding Company et al.; in re 266, Equity, W. W. Wilkinson, Trustee, vs. J. L. Walker; in re 69, Equity, Southwestern Telegraph & Telephone Co. vs. J. L. Walker, in re No. 1001, in Bankruptcy, Walker Grain Company. “Referring to the above matters pending in the District Court of the United States for the Northern District of Texas, at Fort Worth, I beg personally, as a lawyer interested in the cause of justice and fairness in the trial of all litigated matters and as a friend of the Judge of this Court to suggest that the only order that I will consent to your Honor’s entering in any of the above mentioned matters now pending in Your Honor’s Court, is an order certifying Your Honor’s disqualification on the ground of prejudice and bias to try said matters. 520 OCTOBER TERM, 1924. Statement of the Case. 267 U. S. “ You having however proceeded to enter judgment in the petition for review of the action of the Referee on the summary orders against the Farmers’ & Mechanics National Bank and J. L. Walker and Mrs. M. M. Walker, you, of course, would have to pass upon the motion for a new trial in those matters, and also having tried 984, W. W. Wilkinson, Trustee, vs. J. L. Walker, you will, of course,, have to pass upon the motion for a new trial in said cause. “ I do not like to take the steps necessary to enforce the foregoing disqualification, which to my mind, as a lawyer, and an honest man is apparent. 11 Therefore, in the interest of friendship and in the interest of fairness, I suggest that the only honorable thing for Your Honor to do in the above styled matters, is to note Your Honor’s disqualification, or, Your Honor’s qualification having been questioned, to exchange places and permit some judge in whom the defendant and counsel feel more confidence to try these particular matters. 11 Prior to the trial of cause No. 984, which has just concluded, I had believed that Your Honor was big enough and broad enough to overcome the personal prejudice against the defendant Walker, which I knew to exist, but I find that in this fond hope I was mistaken, also, my client desired the privilege of laying the whole facts before Your Honor in an endeavor to overcome the effect of the slanders that have been filed in Your Honor’s Court against him personally and which have been whispered in Your Honor’s ears against him, and in proof of which not one scintilla of evidence exists in any record ever made in Your Honor’s Court. 11 My hopes in this respect having been rudely shattered, I am now appealing purely to Your Honor’s dignity as a Judge and sense of fairness as a man to do as in this letter requested, and please indicate to me at the earliest moment Your Honor’s pleasure with respect to the mat- 517 COOKE v. UNITED STATES. Statement of the Case. 521 ters herein presented, so that further steps may be avoided. “ With very great respect, I beg to remain, “ Yours most truly, Clay Cooke.” Eleven days after this, on the 26th of February, the court directed an order to be entered with a recital of facts concluding as follows: “ Therefore, since the matters of fact set forth herein are within the personal knowledge of the judge of this Court, and since it is the view of this Court that said letter as a whole is an attack upon the honor and integrity of the Court, wherein it charges that the judge of this Court is not big enough and broad enough to truly pass upon matters pending therein, and wherein it charges in effect that the judge of this Court has allowed himself to be improperly approached and influenced and whispered to by interested parties against a litigant in the Court, and since it is the view of this Court that such an act by a litigant and his attorney constitutes misbehavior, and a contempt under the law and that the threats and impertinence and insult in said letter were deliberately and designedly offered with intent to intimidate and improperly influence the Court in matters then pending and soon to be passed upon, and to destroy the independence and impartiality of the Court in these very matters, it is ordered that an attachment immediately issue for the said J. L. Walker and Clay Cooke, and that the Marshal of this Court produce them instanter before this Court to show cause, if any they have, why they should not be punished for contempt.” The marshal arrested the defendants and brought them to court. The following statement shows in substance what then occurred: “ Judge Wilson: At this time I will call the contempt matter against Clay Cooke and J. L. Walker, attachment having been issued for these respondents. 522 OCTOBER TERM, 1924. Statement of the Case. 267 U. S. “ I have requested Judge J. M. McCormick, of Dallas, to be present and act as a friend of the Court in this proceeding, and have also requested the District Attorney, it being in its nature a criminal matter, to act.” Mr. Clay Cooke said that he had not known of the attachment until that morning, that he would like time to prepare for trial and get witnesses for their defense, that there might be extenuating circumstances which would appeal to the court’s sense of fairness and justice in fixing whatever penalty might be imposed and that he had attempted to secure counsel but through illness or absence of those he sought he had failed up to that time. Judge Wilson intimated that he would not postpone the matter, and said: “ There is just this question involved, and as stated by counsel representing the Court, these facts are within the personal knowledge of this Court. Did you deliver this letter to the Judge of this Court? “ Mr. Clay Cooke: Is your Honor asking me? “ Judge Wilson: I am stating the question—and does that Under the law constitute contempt? If you have any defense, you have not suggested any. This Court would be glad to give you ample time to file any pleadings pertinent and secure any evidence that might support or tend to support it, but unless you desire now to state that you have some defense you care to file and present, and indicate what that defense is to this charge, then I shall direct that this proceeding go forward, and you are fully protected, since the higher Courts are open to you to correct any error, even to the Supreme Court, that the Judge of this Court might commit here. Now if you have any defense that is pertinent to this order, state what it is.” Mr. Cooke began to dictate a statement to be filed by him, to the effect that he and Walker believed that they had a good defense, and that the matters of fact stated COOKE v. UNITED STATES. 523 517 Statement of the Case. in the letter as to the bias and prejudice of the judge were true. “ The Court: That does not constitute any defense. “ Mr. Clay Cooke: I’ll state then something otherwise— “ Judge Wilson: Repeating the insult does not constitute any defense. “ Mr. Clay Cooke: I am not trying to repeat the insult, if your Honor please ... I am now stating my good faith. “ Judge Wilson: I mean this, that the Court is not permitting it stated—you may if you regard that as proper, you may state it in your bill of exceptions in concluding the record. “ Mr. Clay Cooke: That affiant had heretofore been on friendly relations with said Judge James C. Wilson— “ Judge Wilson: That is a matter that is wholly immaterial here it don’t make any difference how friendly. “ Mr. Clay Cooke: I am stating my good faith in writing the letter. And affiant believed in writing said letter that he would relieve the said Judge of the embarrassment of finding the necessary statutory affidavits of disqualification, and if said letter— “Judge Wilson: Now the Court is not caring anything about your suggesting the disqualification of the Court; that is your right before these important trials, but you did not avail yourself of that privilege. You understood as a lawyer how to proceed in order to suggest the disqualification of the Judge. “ Mr. Clay Cooke: I am going to state why I did not proceed— “ Judge Wilson: That does not constitute any defense to this contempt charge. “ Mr. Clay Cooke: Can I put that in about writing the letter? Can I put that in later? “ Judge Wilson: You may. 524 OCTOBER TERM, 1924. Statement of the Case. 267 U. S. 11 Mr. Clay Cooke: That affiant wrote said letter without any intention on his part of incurring contempt proceedings and without any thought of contempt and believed that said letter would not be so construed. That affiant has the highest regard for this Court as a Judge; that affiant believed in good faith the Court had heard things concerning—” Then Mr. McCormick, for the court, interposed an objection that there ought not to be an accentuation of the contempt in the letter by a repetition of innuendoes and reflections on the court or by including them in the record. Mr. Clay Cooke said he had dictated and sent the letter after advising with reputable counsel who had read it and believed it proper. 11 The letter itself was not carefully read by myself.” 11 Judge Wilson: I would like to know who said reputable counsel are.” Mr. Clay Cooke said it was his partner, Mr. Dedmon. He said the letter was dictated and was not read by his client, J. L. Walker, that he had not made the contents public and intended it only for the judge’s eye to relieve him from embarrassment, that the purpose was most friendly. After repeating a desire for counsel and the investigation as to the law of contempt in its application to this case, Mr. Cooke referred to the statement he had been attempting to dictate and asked that he might make it fuller because of certain interruptions and to put in anything relevant to his defense. “You may add—I have not heard any defense suggested here yet, but you may add any, however, if you think of any later. Read the order, Mr. District Attorney.” The District Attorney then read the order for the arrest of the defendants set forth in the record in said cause, the defendants were directed to stand up and the court addressed them as follows: 517 COOKE v. UNITED STATES. Statement of the Case. 525 “Judge Wilson: The findings of fact, all of which are within the personal knowledge of this Court, will be made in the order entered: “Now, gentlemen, it is a matter almost of common knowledge that the Courts may be lawfully criticised the same as any other branch of the government, and that it is not unlawful or a contempt of the Court for any person, including newspapers, to pass criticisms upon the judiciary, including the Federal Courts and the judges regardless of their truth or falsity, when those criticisms are concerning past matters not at the time pending in the Courts. This law is based upon sound principle. Every branch of the Government needs constructive criticism; when it is such it is wholesome and helpful; no judge I think welcomes it more nor fears it less than the Judge of this Court. But it is altogether a different proposition and is unlawful and clearly constitutes a contempt of Court for any litigant or attorney to pass such in the presence of the Court, not in a respectful, but in a contemptuous and slanderous manner concerning matters then pending and later to be disposed of by the Court. “ It is obvious upon a reading of this letter that you deliberately designed to improperly influence the Court in these pending matters wherein no disqualification is suggested, and you were very careful to suggest that the Court was not disqualified in certain matters, and it is the view of the Court that it was your thought and aim to destroy the independence and the very impartiality of the Court as to those matters. “And I have some more things I should like to remind you gentlemen of, your conduct and course as litigant and as an attorney of this Court, in many respects, has been reprehensible. You have filled your pleadings with scandalous charges against trusted officials of this Court. You have charged that the Referee in Bankruptcy, the attorneys for the petitioning creditors and the Trustee in Bankruptcy entered into a corrupt conspiracy to do 526 OCTOBER TERM, 1924. Statement of the Case. 267 U. S. many unlawful things all to deprive you, J. L. Walker, of your rights, in this Court. And not only that, but while the jury were deliberating in cause No. 984, and though in charge of the marshal of this Court, you both of you being a party to it, employed a private detective to follow and shadow them with a view of reporting to you any corrupt conduct on their part; and you, J. L. Walker, after the jury had rendered its verdict of fifty-six thousand dollars against you, you employed this same detective, whose sworn statement I hold in my hand, to follow the foreman of the jury, Mr. E. G. Thomas, an honorable and respected citizen of Tarrant County, stating that you expected him to meet some one and be paid off, in other words, to receive bribe money for his verdict in said cause. And not only that, but you gave this same private detective to understand, that another one of the jurors, an honorable citizen of Parker County, had been improperly approached and influenced as a juror in this case— “Mr. J. L. Walker: Your Honor, pardon me, but I would like to state that J. L. Walker did but what he is in position to prove, and I have it in my pocket— “ —Mr. Marshal, cause this man to desist. “ Mr. J. L. Walker: I beg your pardon I thought I had the right to speak now. “Judge Wilson: No, you haven’t got a right. Your time to reply is passed. 11 In view of all this, it is not surprising that you men would deliver this letter to the Court with the utterly false statement in it that this Court had permitted himself to be improperly influenced and whispered to by interested parties against a litigant in this Court. It is a simple and easy matter to analyze the character of any man who is expecting every other man to act dishonestly and corruptly. “ Your whole course, as I say, has been contemptible, not only in this matter, and it is not surprising that you delivered this letter to the Court and is surprising that COOKE v. UNITED STATES. 527 517 Statement of the Case. you did not state more in the letter, and of course you are in contempt, if you are not, you have your remedy, and you, J. L. Walker, I sentence to the Tarrant County jail for thirty days and the payment of a five hundred dollar fine— “ Mr. McCormick: I doubt whether your Honor has the authority to assess both fine and imprisonment. The statute says you may punish by c fine or imprisonment.’ I believe I would suggest that you visit such fine as you see fit, or such imprisonment, but not both. “ Judge Wilson: I assess a punishment of thirty days against each of these respondents.” Mr. Cooke asked that a bond be fixed pending appeal. “ Mr. McCormick: An appeal does not lie in such a case. The evidence, gentlemen, if at all, must be reviewed by writ of error, if reviewed at all. “Mr. Clay Cooke: The statement of the Court is he will consider a writ of error or appeal. In this case we will have sixty days— “Judge Wilson: Take these respondents to jail, Mr. Marshal. “Mr. McCormick: If they are going to take the full sixty days on the matter— “ Judge Wilson: No, there is not going to be any sixty days, the higher Court is going to pass upon this matter at once. . . . “ Mr. Dedmon: Did your Honor fix the amount of the bond? “ Judge Wilson: One thousand dollars. I am not allowing them bond, not releasing the defendants. It is a writ of error bond. “ Mr. Dedmon: You mean you are not going to let them appeal from the order adjudging them to spend thirty days in jail? “ Judge Wilson: If they perfect this appeal, I might release them from jail—show that they are going to appeal it and do it in a hurry.” 528 OCTOBER TERM, .1924. Argument for Petitioner. 267 U.S. Mr. Edwin C. Brandenburg, with whom Messrs J. A. Templeton, G. A. Stultz, W. E. Spell, and E. Howard McCaleb were on the brief, for petitioner. Petitioner’s conviction was obtained without due process of law. He was sentenced without any affidavit or other authentic charge being brought, against him, or any notice of the offense charged, Phillips S. & T., Co., v. Amalgamated Ass’n., 208 Fed. 335; Sona n. Aluminum Castings Co., 214 Fed. 936. Even the purported charge states no offense against the laws of the United States. If everything in the purported charge were admitted to be true, it would merely mean that the judge held certain private “ views ” as to certain private, confidential acts of the defendant, and these views might or might not be justified by the facts. Ex parte Hudgins, 249 U. S. 378; Ex parte Craig, 274 Fed. 185. Petitioner was not informed of the nature and cause of the accusation. The statute was in no respect complied with. The petitioner was arrested on a warrant that neither charged an offense nor contained a certified copy of any charge, and was immediately committed to jail for 30 days. Sona v. Aluminum Castings Co., supra; Gompers v. Bucks Stove & Range Co., 221 U. S. 418; Ex parte Robinson, 19 Wall. 505; Windsor v. McVeigh, 93 U. S. 274; Gdlpin v. Page, 18 Wall. 350; In re Holt, 55 N. J. L. 384. Petitioner was denied the assistance of counsel for his defense. No notice was given him of the charge, though the trial judge consumed ten days after receiving the letter in which it appears he engaged the services of a special prosecutor from another city, formulated the charge, prepared for the prosecution; then, after such careful preparation, a marshal is sent out to bring petitioner under arrest instanter before the court, where he COOKE v. UNITED STATES. 529 <517 Argument for Petitioner. is denied all reasonable opportunity to consult counsel, or to obtain the assistance of counsel for his defense. The fact that this is a criminal prosecution and that defendant was denied the assistance of counsel for his defense can not be, and is not, denied. It is the assistance of counsel that the Constitution guarantees. The right of counsel, even if granted, without the right of consultation is barren and fruitless. The arrest, the alleged hearing, the conviction and the incarceration of defendant all occurred in a very short space of time in the forenoon, and defendant during all of that time was in the custody of the marshal or before the bar of the court in custody, with no opportunity either to employ or consult with counsel. Defendant was not allowed to plead to the charge, and the common law right to purge himself by his oath was denied him. Craig v. Hecht, 260 U. S. 714. The only objection to the letter apparently urged in the purported charge is the statement of the defendant’s former opinion that the judge was big enough and broad enough to overcome the bias and prejudice admittedly existing, and the conclusion that he was mistaken therein. This is not a contempt. It is merely the statement of a truth, which this record clearly discloses. It is an unfortunate situation that a lawyer may, with flattery and praise, seek to and actually influence judicial action, but he cannot speak the truth with candor without being sent to jail. This is not as it should be. Ex parte Robinson, supra; Hovey v. Elliott, 167 U. S. 409; McVeigh n. United States, 11 Wall. 259; Windsor v. McVeigh, 93 U. S. 277; Galpin v. Page, 18 Wall. 350; In re Pittman, 1 Curt. (U. S.) 186. Petitioner was convicted without being confronted by any witnesses or evidence against him, and there is no evidence of guilt in the record to sustain the conviction. The record on appeal was wrongfully altered after the appeal was perfected by arbitrarily striking out def end-426840—25—34 530 OCTOBER TERM, 1924. Argument for the United States. 267 U. S. ant’s answer and motion in arrest of judgment, and for a new trial; and the court’s refusal to act on the same was a refusal to perform the duties required of it by law; and striking the papers from the record on appeal after appeal was perfected was an invasion of the province and jurisdiction of appellate courts, and deprived petitioner of substantial legal rights. A sentence imposed for an offense not charged is void. . Mr. Merrill E. Otis, Special Assistant to the Attorney General, with whom Solicitor General Beck was on the brief, for the United States. Petitioner was guilty of contempt, § 725, Rev. Stats. This act is not the source, of course, of the power of the federal courts to punish contempts. It but restricts their inherent power. Under it they can only punish as contempt “ the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice.” Petitioner’s act in writing and delivering the letter, wTas in the “ presence of the court.” In re Savin, Petitioner, 131 U. S. 267. It was also “ misbehavior ” to say to the judge in writing, as the petitioner here did, that in a case just ended and in which a motion for a new trial was pending, he had proved himself not big enough and not broad enough to restrain his bias and prejudice against a litigant; that in his conduct of the trial he had manifested such prejudice and bias; and that he was possessed of this prejudice and bias against the litigant because he had permitted slanders to be whispered in his ears; to say to the judge that the petitioner’s hopes that the judge would conduct himself as a judge should had been shattered by the judge’s conduct, and not only shattered but rudely shattered; to say all of these things, and in substance they were all said in the petitioner’s letter, was patently to offer insult to the court and openly to impeach his honor both as judge and man. Certainly it is no' defense 517 COOKE v. UNITED STATES. Argument for the United States. 531 to say that there were parts of the letter that were not improper, or that much of it might lawfully have been incorporated in an affidavit to disqualify the judge in cases not yet tried. There remains the offending language which had no reference to the cases yet for trial but referred solely to the case still pending on motion for new trial. Petitioner was accorded a fair hearing. The word “ warrant ” as used in the Fourth Amendment has never been held to include an attachment to answer for contempt of court. It has been repeatedly held that in a case of a direct contempt neither affidavit, notice, rule to show cause, nor other process, is a necessary prerequisite to the court’s jurisdiction to punish the contempt. In re Terry, 128 U. S. 289. The petitioner waived any objection to the basis of the attachment by pleading orally and in writing to the charge upon its merits. This objection is contained in none of the assignments of error. Neither Phillips S. & T. Co. v. Amalgamated Ass’n., 208 Fed. 335, nor Sona v. Aluminum Castings Co., 214 Fed. 936, was a case of direct contempt committed in the presence of the court. No formal charge whatever was necessary in case of a contempt committed in the presence of the court. The statute does not require that the “ misbehavior,” if committed in the presence of the court, must also be of such character as to “ obstruct the administration of justice.” That qualification is required only as to misbehavior not committed “ in the presence of the court.” Ex parte Hudgins, 249 U. S. 378; Ex parte Craig, 274 Fed. 177 distinguished. Article IV of the Amendments providing that “ In all criminal prosecutions, the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation,” is one of those constitutional limitations which this cburt said in the Hudgins Case, supra, did not apply to a contempt committed “in the presence of the 532 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. court.” Moreover, the record clearly shows that in truth and fact the petitioner was fully informed as to the charge against him before he undertook to state his defense. As for Article VI, relating to the right of counsel in all criminal prosecutions, the inapplicability of this amendment, with its several guarantees, including that of trial by jury, to a proceeding for the summary punishment of contempt in the presence of the court is so well recognized that discussion of it is idle. One charged with a direct contempt committed in the presence of the court has not the right to plead formally to the charge. Here again the Hudgins Case is in point and decisive. The most petitioner was entitled to was opportunity to deny authorship of the offending letter, since it was delivered by the hand of another although in his presence. But he admitted authorship. There was nothing that might have been proper subject matter of any further hearing. Such hearing as he was entitled to he had. Petitioner was deprived of no legal right by any failure to transmit to the Circuit Court of Appeals what purported to be an answer admittedly offered for filing after writ of error had been allowed. Mr. Chief Justice Taft, after stating the case as above, delivered the opinion of the Court. The first objection to the sentence of the court, made on behalf of the petitioner, is that the letter written to the judge is not a contempt of the court. Section 21 of the Judicial Code contains the following: “ Whenever a party to any action or proceeding, civil or criminal, shall make and file an affidavit that the judge before whom the action or proceeding is to be tried or heard has a personal bias or prejudice either against him or in favor of any opposite party to the suit, such judge shall proceed no further therein, but another judge shall be designated in the manner prescribed in the section last 517 COOKE v. UNITED STATES. Opinion of the Court. 533 preceding, or chosen in the manner prescribed in section twenty-three, to hear such matter. Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term of the court, or good cause shall be shown for the failure to file it within such time. No party shall be entitled in any case to file more than one such affidavit; and no such affidavit shall be filed unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith.” It is said that all that the petitioner intended to do by this letter was to advise the court of the desire of his client to have another judge try the four cases yet to be heard, and of his own desire to avoid the necessity of filing an affidavit of bias under the above section in those cases by inducing the regular judge voluntarily to withdraw. Had the letter contained no more than this, we agree with the Circuit Court of Appeals that it would not have been improper. But we also agree with that court that the letter as written did more than this. The letter was written the morning after the verdict in the heat of the petitioner’s evident indignation at the judge’s conduct of the case and the verdict. At least two weeks would elapse before it was necessary to file an affidavit of bias in the other cases.1 The letter was written and delivered pending further necessary proceedings in the very case which aroused the writer’s anger. While it was doubtless intended to notify the judge that he would not be allowed to sit in the other cases, its tenor shows that it was also written to gratify the writer’s desire to characterize in severe language, per- 1 The next term of the court at Forth Worth would have been the second Monday in March (Judicial Code, § 108) so that the affidavit required by § 21 for disqualification need not have been filed before March 2nd. The letter was written February 15th. 534 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. sonally derogatory to the judge, his conduct of the pending case. Though the writer addressed the judge throughout as “Your Honor”, this did not conceal but emphasized the personal reflection intended. The expression of disappointed hope that the judge was big enough and broad enough to overcome his personal prejudice against petitioner’s client and that the client would have the privilege of rebutting the whispered slanders to which the judge had lent his ear, and the declaration that his confidence in the judge had been rudely shattered, were personally condemnatory and were calculated to stir the judge’s resentment and anger. Considering the circumstances and the fact that the case was still before the judge, but without intending to foreclose the right of the petitioner to be heard with witnesses and argument on this issue when given an opportunity, we agree with the Circuit Court of Appeals that the letter was contemptuous. But while we reach this conclusion, we are far from approving the course of the judge in the procedure, or absence of it, adopted by him in sentencing the petitioner. He treated the case as if the objectionable words had been uttered against him in open court. To preserve order in the court room for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Such summary vindication of the court’s dignity and authority is necessary. It has always been so in the courts of the common law and the punishment imposed is due process of law. Such a case had great consideration in the decision of this Court in Ex parte Terry, 128 U. S. 289. It was there held that a court of the United States upon the commission of a contempt in open court 517 COOKE v. UNITED STATES. Opinion of the Court. 535 might upon its own knowledge of the facts without further proof, without issue or trial, and without hearing an explanation of the motives of the offender, immediately proceed to determine whether the facts justified punishment and to inflict such punishment as was fitting under the law. The important distinction between the Terry Case and the one at bar is that this contempt was not in open court. This is fully brought out in Savin, Petitioner, 131 U. S. 267. The contempt there was an effort to deter a witness, in attendance upon a court of the United States in obedience to a subpoena, while he was in a waiting room for witnesses near the court room, from testifying, and the offering him money in the hallway of the courthouse as an inducement. This was held to be “ misbehavior in the presence of the Court ”, under § 725 R. S. (now § 268 of the Judicial Code). The Court, speaking by Mr. Justice Harlan, said (page 277): “We are of opinion that, within the meaning of the statute, the court, at least when in session, is present in every part of the place set apart for its own use, and for the use of its officers, jurors and witnesses; and misbehavior anywhere in such place is misbehavior in the presence of the court. It is true that the mode of proceeding for contempt is not the same in every case of such misbehavior. Where the contempt is committed directly under the eye or within the view of the court, it may proceed 1 upon its own knowledge of the facts and punish the offender, without further proof, and without issue or trial in any form,’ Ex parte Terry, 128 U. S. 289, 309; whereas, in cases of misbehavior of which the judge can not have such personal knowledge, and is informed thereof only by confession of the party, or by testimony under oath of others, the proper practice is, by rule or other process, to require the offender to appear and show cause why he should not be punished. 4 Bl. Com. 286.” 536 OCTOBER TERM, 1924. Opinion of the Court. .267 U.S. This difference between the scope of the words of the statute “in the presence of the court,” on the one hand, and the meaning of the narrower phrase “ under the eye or within the view of the court,” or “ in open court ” or “in the face of the court,” or “in facie curiae/’ on the other, is thus clearly indicated and is further elaborated in the opinion. We think the distinction finds its reason not any more in the ability of the judge to see and hear what happens in the open court than in the danger that, unless such an open threat to the orderly procedure of the court and such a flagrant defiance of the person and presence of the judge before the public in the “ very hallowed place of justice,” as Blackstone has it, is not instantly suppressed and punished, demoralization of the court’s authority will follow. Punishment without issue or trial was so contrary to the usual and ordinarily indispensable hearing before judgment, constituting due process, that the assumption that the court saw everything that went on in open court was required to justify the exception; but the need for immediate penal vindication of the dignity of the court created it. When the contempt is not in open court, however, there is no such right or reason in dispensing with the necessity of charges and the opportunity of the accused to present his defense by witnesses and argument. The exact form of the procedure in the prosecution of such contempts is not important. The Court in Randall v. Brigham, 7 Wall. 523, 540, in speaking of what was necessary in proceedings against an attorney at law for malpractice said: “All that is requisite to their validity is that, when not taken for matters occurring in open court, in the presence of the judges, notice should be given to the attorney of the charges made and opportunity afforded him for explanation and defence. The manner in which the proceeding shall be conducted, so that it be without oppression or unfairness, is a matter of judicial regulation.” 517 COOKE v. UNITED STATES. Opinion of the Court. 537 The Court in Savin, Petitioner, 131 U. S. 267, applied this rule to proceedings for contempt. Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation. We think this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either to the issue of complete exculpation or in extenuation of the offense and in mitigation of the penalty to be imposed. See Hollingsworth v. Duane, 12 Fed. Cases 359, 360; In re Stewart, 118 La. 827; Ex parte Clark, 208 Mo. 121. The proceeding in this case was not conducted in accordance with the foregoing principles. We have set out at great length in the statement which precedes this opinion the substance of what took place before, at and after the sentence. The first step by the court was an order of attachment and the arrest of the petitioner. It is not shown that the writ of attachment contained a copy of the order of the court, and we are not advised that the petitioner had an exact idea of the purport of the charges until the order was read. In such a case, and after so long a delay, it would seem to have been proper practice, as laid down by Blackstone, 4 Commentaries, 286, to issue a rule to show" cause. The rule should have contained enough to inform the defendant of the nature of the contempt charged. See Hollingsworth v. Duane, 12 Fed. Cases 367, 369. Without any ground shown for supposing that a rule would not have brought in the alleged contemnors, it was harsh under the circumstances to order the arrest. After the court elicited from the petitioner the admission that he had written the letter, the court refused him time to secure and consult counsel, prepare his defense and call witnesses, and this although the court itself 538 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. had taken time to call in counsel as a friend of the court. The presence of the United States District Attorney also was secured by the court on the ground that it was a criminal case. The court proceeded on the theory that the admission that the petitioner had written the letter foreclosed evidence or argument. In cases like this, where the intention with which acts of contempt have been committed must necessarily and properly have an important bearing on the degree of guilt and the penalty which should be imposed, the court can not exclude evidence in mitigation. It is a proper part of the defense. There was a suggestion in one of the remarks of the petitioner to the court that, while he had dictated the letter he had not read it carefully, and that he had trusted to the advice of his partner in sending it; but he was not given a chance to call witnesses or to make a full statement on this point. He was interrupted by the court or the counsel of the court in every attempted explanation. On the other hand, when the court came to pronounce sentence, it commented on the conduct of both the petitioner and his client in making scandalous charges in the pleadings against officials of the court and charges of a corrupt conspiracy against the trustee and referee in bankruptcy, and in employing a detective to shadow jurymen while in charge of the marshal, and afterwards to detect bribery of them, in proof of which the court referred to a sworn statement of the detective in its hands, which had not been submitted to the petitioner or his client. When Walker questioned this, the court directed the marshal to prevent further interruption. It was quite clear that the court considered the facts thus announced as in aggravation of the contempt. Yet no opportunity had been given to the contemnors even to hear these new charges of the court, much less to meet or explain them, before the sentence. We think the procedure pursued was unfair and oppressive to the petitioner. 517 COOKE v. UNITED STATES. Opinion of the Court. 539 Another feature of this case seems to call for remark. The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indispensable. But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency. The substitution of another judge would avoid either tendency but it is not always possible. Of course where acts of contempt are palpably aggravated by a personal attack upon the judge in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. But attempts of this kind are rare. All of such cases, however, present difficult questions for the judge. All we can say upon the whole matter is that where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place. Cornish v. The United States, 299 Fed. 283, 285; Toledo Company v. The United States, 237 Fed. 986, 988. The case before us is one in which the issue between the judge and the parties had come to involve marked personal feeling that did not make for an impartial and calm judicial consideration and conclusion, as the statement of the proceedings abundantly shows. We think, therefore, that when this case again reaches the District Court to which it must be remanded, the judge who imposed the sentence herein should invite the senior circuit judge of the circuit to assign another judge to sit in the second hearing of the charge against the petitioner. 540 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. Judgment of the Circuit Court of Appeals is reversed and the case is remanded to the District Court for further proceedings in conformity with this opinion. Reversed. YEISER v. DYSART, ET AL. ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA. No. 130. Submitted October 24, 1924.—Decided April 13, 1925. A State may restrict the fees chargeable by attorneys at law in cases arising under the state workmen’s compensation act without depriving them of property or liberty of contract in violation of the Fourteenth Amendment. P. 541. 192 N. W. 953, affirmed. Error to a judgment of the Supreme Court of Nebraska ordering that the right of the plaintiff in error to practise as attorney at law be suspended unless he refund to a client a fee received and paid in violation of a provision of the state workmen’s compensation law, providing that in cases thereunder the pay of the attorney should be fixed by the court and invalidating any contract for other and further pay. John 0. Yeiser, pro se. No brief filed for defendants in error. Mr. Justice Holmes delivered thè opinion of the Court. Upon a report of the respondents, a committee of members of the bar, the plaintiff in error was ordered to be suspended from the right to practise as attorney unless he should refund to a client a fee received by him of $620 and interest within a time fixed. The ground of the order was that by § 3031, Comp. St. 1922, only such sum could be demanded for services in bringing a suit under the workmen’s compensation act of the State as the Court 540 YEISER v. DYSART. Opinion of the Court. 541 should allow, and that a contract for other and further pay was void. The Supreme Court of the State, while crediting the plaintiff in error with an honest belief that the statute had a narrower meaning, made the order complained of, and the case is brought here on a contention that the statute as construed unreasonably restricts the liberty of contract and contravenes the Fourteenth Amendment by depriving the plaintiff in error of his liberty and property without due process of law. The plaintiff in error recognizes that this Court is bound by the construction given to the State law by the State Court, yet wastes a good deal of argument in the effort to prove the construction wrong. When the constitutional question is reached, late cases are relied upon for the general proposition that unreasonable interference with freedom of contract cannot be sustained. Adkins v. Children’s Hospital, 261 U. S. 525; Charles Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 522. But the question is specific, whether we can pronounce this law unreasonable, against the opinion of the legislature and Supreme Court of the State. The Court adverts to the fact that a large proportion of those who come under the statute have to look to it in case of injury and need to be protected against improvident contracts, in the interest not only of themselves and their families but of the public. A somewhat similar principle has been sanctioned by this Court. Calhoun v. Massie, 253 U. S. 170. When we add the considerations that an attorney practises under a license from the State and that the subject matter is a right created by statute, it is obvious that the State may attach such conditions to the license in respect of such matters as it believes to be necessary in order to make it a public good. Of course a reasonable time from the issue of the mandate of this Court will be allowed for the plaintiff in error to comply with the judgment affirmed. Judgment Affirmed. 542 OCTOBER TERM, 1924. Opinion of the Court. 267 U.S. LEE, INDIVIDUALLY AND AS TRUSTEE OF LEWIS C. PAINE v. LEHIGH VALLEY COAL COMPANY & KATE P. DIXON. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 222. Argued January 22, 1925.—Decided April 13, 1925. In a suit by one of two lessors against the lessee to construe and establish the lease and obtain accounting for both lessors, charging fraud by lessee, the other lessor is a necessary, if not an. indispensable, party, and, for the purpose of determining original jurisdiction of the District Court through diversity of citizenship, must be aligned with the plaintiff. P. 543. Affirmed. Appeal from a decree of the District Court dismissing a bill for want of jurisdiction. Mr. H. M. Hitchings and Mr. Frank Wolcott, for appellant, submitted. Mr. Charles W. Pierson, with whom Mr. Allan Mc-Culloh and Mr. Campbell Locke, were on the brief, for appellee. Mr. Justice Holmes delivered the opinion of the Court. This is a bill brought against the Lehigh Valley Coal Company, lessee of a coal mine, by John Alden Lee, who owns one-half of the mine in his own right and as trustee for his brother. Kate P. Dixon owns the other half. The bill seeks a construction of the lease and of an agreement made on behalf of the plaintiff’s interest on January 21, 1913; a declaration that certain parts of the agreement are a fraud upon the plaintiff and Kate P. Dixon; an account to the plaintiff and Kate P. Dixon from the Coal Company, and that the lease may be declared to be, and to have been since January 21, 1913, in LEE v. LEHIGH VALLEY COAL CO. 543 542 Opinion of the Court. full force and effect. The Coal Company is a corporation of Pennsylvania, the plaintiff Lee a citizen and resident of New York, and Kate P. Dixon is a citizen and resident of Pennsylvania. She is made a defendant, the bill alleges, because of her refusal to be made a plaintiff ‘ and because to make her such party plaintiff would oust the Court of jurisdiction.’ The bill was dismissed for want of jurisdiction by the District Court, we presume on the ground that, so far as appeared, the arrangement of the parties was merely a contrivance for the purpose of founding a jurisdiction that otherwise would not exist. Dawson v. Columbia Trust Co., 197 U. S. 178, 181. The plaintiff and appellant now argues that Kate P. Dixon is not a necessary party. When a defendant seeks to remove a suit from a State Court to the District Court, of course he is entitled to contend that a party joined by the plaintiff is not a necessary party and therefore does not make the removal impossible by defeating the jurisdiction. Salem Trust Co. v. Manufacturers’ Finance Co., 264 U. S. 182. It is a different question whether the plaintiff can repudiate the effect of his own joinder, can retain a party to the relief sought and yet keep him on the wrong side in order to avoid the effect of his own act. Without inquiring whether the plaintiff could have main-tained the suit alone had he so elected and had he found it impossible to join Kate P. Dixon, obviously she was a 1 necessary ’ even if not an indispensable party. (Shields v. Barrow, 17 How. 130, 139.) It would be hard upon the Coal Company to compel it to submit to an adjudication upon the lease, upon a fraud alleged to have been committed against both owners, and to an account, in the absence of one of the lessors. The joinder of both is much more than a mere form. As both are named they must be arranged upon the side on which they belong. Menefee v. Frost, 123 Fed. 633. Blacklock v. Small, 127 U. S. 96. Decree affirmed. 544 OCTOBER TERM, 1924. Argument for Petitioner 267 U. S. MODERN WOODMEN OF AMERICA v. JENNIE V. MIXER. CERTIORARI TO THE SUPREME COURT OF NEBRASKA. No. 308. Submitted March 18, 1925.—Decided April 13, 1925. 1. Becoming a member of an incorporated beneficiary society is more than a contract; it is entering into a complex and abiding relation; and the rights of membership are to be governed by the law of the State of the society’s incorporation. P. 551. 2. Hence other States, irrespective of where the certificate of membership was issued, cannot attach to a membership rights against the society which are refused by the law of the domicil. Id. 3. Where a by-law of such a corporation provided that absence of any member unheard of should not give any right to recover on any benefit certificate until the member’s expectancy of life had expired, and this was upheld by the Supreme Court of its domiciliary State even as against memberships antedating the by-law, held that a decision of a court of another State denying it this effect failed to give full faith and credit to the domiciliary charter. Royal Arcanum v. Green, 237 U. S. 531. Id. 197 N. W. 129, reversed. Certiorari to a judgment of the Supreme Court of the State of Nebraska which affirmed a judgment for the plaintiff (here respondent) in an action on a benefit certificate. Mr. Nelson C. Pratt, with whom Messrs. Truman Plantz, Frank M. McDavid, George G. Perrin, and George H. Davis were on the briefs, for petitioner. The question whether payment of assessments shall cease at the expiration of seven years’ unexplained absence of the member or shall continue to be paid for the period of the expectancy of life of the member is one which affects the financial interest of every member of the society. Royal Arcanum v. Green, 237 U. S. 531; Steen v. Modern Woodmen of America, 296 Ill. 104; Hartford Life Insurance Co. v. Ibs, 237 U. S. 662. MODERN WOODMEN v. MIXER. 545 544 Argument for Petitioner. When the petitioner came into Nebraska it brought its charter with it, and its power to do any given thing is to be determined by that charter and the interpretation of it by the courts of Illinois. The Nebraska courts failed to give full faith and credit to the decision and judgment of the court of Illinois in the case of Steen v. Modern Woodmen, 296 Ill. 104. Where either the application or the benefit certificate contains an agreement on behalf of the member to be bound by after-enacted by-laws, after-enacted by-laws are valid and the member is bound thereby. The application made by the member and the benefit certificate provide that the laws, rules and usages of the society then in force, or which might thereafter be enacted, are part of the contract between the member and the society. The contract, therefore, provided that the member should be bound by all the laws that were legally enacted by the petitioner subsequent to the time of the issuance of his benefit certificate. Hall v. Asso-ciation, 69 Neb. 601; Funk v. Stevens, 102 Neb. 681; Knights of Pythias v. Mims, 241 U. S. 574; Apitz v. Supreme Lodge, 274 Ill. 196; Steen v. Modem Woodmen, 296 Ill. 104; Thomas v. Knights of Maccabees, 85 Wash. 665; Hollingsworth v. Supreme Council, 175 N. C. 615; Reynolds v. Supreme Council, 192 Mass. 150; Case v. Supreme Tribe, 106 Neb. 220; Supreme Lodge v. Smyth, 245 U. S. 594; Langnecker v. Grand Lodge, 111 Wis. 279; Norton v. Catholic Order of Foresters, 138 la: 464; Korn v. Mutual Assurance Society, 6 Cranch 192; Crites v. Modern Woodmen, 82 Neb. 298; Hartford Life Insurance Co. v. Ibs, 237 U. S. 662; Supreme Council v. Green, 237 U. S. 531; Hartford Life Insurance Co. v. Barber, 245 U. S. 146. The statutes of the State of incorporation, the charter or articles of association, benefit certificate and laws of 42684°—25------35 546 OCTOBER TERM, 1924. Argument for Petitioner. 267 U. S. the society enter into and are parts of the contract of membership between a fraternal beneficiary society and its membership. Baldwin v. Begley, 185 Ill. 180; Fulen-weider v. Royal League, 180 Ill. 621; Sabin v. Phinney, 134 N. Y. 423; Shipman v. Protected Home Circle, 174 N. Y. 398; Union Mutual Association v. Montgomery, 70 Mich. 587; Supreme Lodge v. LaMalta, 95 Tenn. 157; Gaines n. Supreme Council, 140 Fed. 978; Van Schoon-hoven v. Curley, 86 N. Y. 187; Sharpe v. Grand Lodge, 108 Neb. 193; Farmers v. Kinney, 64 Neb. 808; Reife v. Rundle, 103 U. S. 222; Kirkpatrick v. Modem Woodmen, 103 Ill. App. 468. The provisions of the Constitution and of the act of Congress by which the judgments of one State are to have faith and credit given them in another State establish a rule of evidence rather than of jurisdiction. Wisconsin v. Pelican Ins. Co., 127 U. S. 265; Steen v. Modem Woodmen, supra; Harrison v. Insurance Co., 102 la. 112; Russ v. War Eagle, 14 la. 363; Mobile, Jackson & P. C. R. R. Co. v. Turnipseed, 219 U. S. 35; There is no vested right in a rule of evidence, and parties may by contract provide that a different rule shall apply in determining controversies that may arise between them. Roeh v. Business Men’s Association, 164 la. 199; Steen v. Modem Woodmen, supra; Chicago, B. & Q. R. R. v. Jones, 149 Ill. 361; Lundberg v. Interstate Business Men’s Ass’n., 162 Wis. 474; People n. Rose, 207 Ill. 352; Chicago Transfer R. R. v. Chicago, 217 Ill. 343; Munn v. Illinois, 94 U. S. 113; Western Union v. Comm. Mill Co., 218 U. S. 406; Martin n. Railroad Co., 203 U. S. 284. The petitioner in transacting business in its home State is controlled by its charter, as interpreted by the courts of such home State, and, in a like manner when it transacts business in a State other than the State of its incorporation, it necessarily carries its charter with it, for that is the law of its existence. Royal Arcanum v. Green, MODERN WOODMEN v. MIXER. 547 544 Argument for Petitioner. 237 U. S. 531; Reynolds v. Arcanum, 192 Mass. 150; Hartford Life Ins. Co. v. Ibs, 237 U. S. 662; Hollingsworth v. Supreme Council 175 N. C. 615; Sovereign Camp W. 0. W. v. Wirts, 254 S. W. (Tex.) 637; McClement v. Supreme Court I. 0. F., 222 N. Y. 470; Supreme Council v. Gallery, 278 Fed. 500; Canada Southern R. R. v. Gebhard, 109 U. S. 527; Nashua Sav. Bank v. Anglo-American Loan Co., 189 U. S. 221; Bernheimer v. Converse, 206 IT. S. 516; Palmer v. Welsh, 132 Ill. 141; Supreme Lodge v. Hine, 82 Conn. 315; Supreme Colony v. Towne, 87 Conn. 644; Reife v. Rundle, 103 U. S. 222; North American Union v. Johnson, 142 Ark. 378. The right of a corporation to modify the terms of a contract of membership depends upon the power of the corporation. Supreme Lodge K. of P. v. Knight, 117 Ind. 489; Wright v. Minnesota Mutual Life Ins. Co., 193 IT. S. 657; Korn v. Society, 6 Cranch 192; Society n. Korn, 7 Cranch 396. The full faith and credit clause requires that the public acts of every State shall be given the same effect by the courts of another State that they have by law and usage at home. Smithsonian Institute v. St. John, 214 IT. S. 19; Railroad Co. v. Wiggins Ferry Co., 119 U. S. 615; Hancock National Bank v. Farnam, 176 IT. S. 640; Flash v. Conn, 109 U. S. 371; Royal Arcanum v. Green, 237 IT. S. 531; Graham v. First National Bank, 84 N. Y. 393; Canada Southern R. R. v. Gebhard, 109 U. S. 527. If the legislature has not limited the charter powers of foreign beneficiary societies, the charter as interpreted by the courts of the home State is controlling. Thomas N. Matthiessen, 232 IT. S. 221; Nat. Bldg. & Loan Assn. v. Brahan, 193 IT. S. 635; New York Life Ins. Co. v. Cravens, 178 IT. S. 389; Pinney v. Nelson, 183 IT. S. 144; Knights of Pythias v. Meyer, 265 IT. S. 30; Nelson v. Nederland Life Ins. Co., 110 la. 600; American Fidelity Co. v. Bleak- 548 OCTOBER TERM, 1924. Argument for Respondent. 267 U.S. ley, 157 la. 442; Dworak v. Supreme Lodge, 101 Neb. 297; Dolan v. Supreme Council, 152 Mich. 266; Weiditschka v. Maccabees, 188 la. 183; Dennis v. Modern Brotherhood, 119 Mo. App. 210; distinguishing McElroy v. Insurance Co., 84 Neb. 866; Rye v. New York Life Ins. Co., 88 Neb. 707; Mutual Life Insurance Co. v. Cohen, 179 U. S. 262; Mutual Life Ins. Co. v. Hill, 193 U. S. 551; American Fidelity Co. n. Bleakley, 157 la. 442; Prudential Ins. Co. v. Cheek, 259 U. S. 530. Mr. J. J. McCarthy and Mr. George W. Learner for respondent, submitted. The case should have been brought up by a writ of error instead of certiorari. Judicial Code § 237, as amended by Act of Feb. 17, 1922, 42 Stat. 366. The contract sued upon was delivered and first became effective in the State of South Dakota. There is neither pleading nor proof as to the laws of that State. The law of South Dakota is therefore presumed to be the same as the law of Nebraska. This is true as to both statutory and common law. Stark v. Olsen, 44 Neb. 646; Council Bluffs v. Griswold, 50 Neb. 753; Bannard v. Duncan, 79 Neb. 189; Haggin v. Haggin, 35 Neb. 375; Scroggin v. McClelland, 37 Neb. 644; Chapman v. Brewer, 43 Neb. 890; Smith v. Mason, 44 Neb. 610. The presumption must therefore be indulged that the by-law relied upon by the appellant is, under the law of South Dakota, unreasonable, void and of no effect; because that is the conclusion reached by the court of Nebraska. Mixer v. M. W. A., 197 N. W. 129 (this case); Garrison v. M. W. A., 105 N. W. 25; 178 N. W. 842. The contract in suit should be construed and enforced according, to the law of the place where made. The record shows that the insured made application to the local camp at Elk Point, South Dakota, to become a 544 MODERN WOODMEN v. MIXER. Argument for Respondent. 549 member thereof, and provided in his application that no right should accrue to him until he had been adopted and made the payments required at adoption, and that the certificate should only be delivered to him after adoption, all in accordance with the by-laws of the society; and the endorsement upon the certificate shows that this is what was done, and that when he was adopted into the local camp the certificate was delivered to him and he accepted it and paid the dues and charges required. So that all of the acts which made the certificate a contract took place in South Dakota, and not in the State of Illinois, the appellant acting by and through its local camp and the officers thereof as its agents, and the insured acting for himself. It is therefore quite immaterial that the Constitution of the United States provides that full faith and credit must be given to certain records and acts of each State when they become important in some other State. The general rule is that the construction of a contract of insurance and the rights and obligations of the parties thereto must be determined by the law of the place where the contract is made. Equitable Life Assurance Society v. Pettus, 140 U. S. 228; Mutual Life Ins. Co. v. Cohen, 179 U. S. 263; Supreme Council v. Meyer, 198 U. S. 508; Life Ins. Co. v. McCue, 223 U. S. 234; Inger-sol v. Ins. Co., 156 Ill. App. 568; Wilde v. Wilde, 95 N. E. 295; Green v. Supreme Council, 124 N. Y. S. 398; Head v. Ins. Co., 147 S. W. 827 (Mo.). The rule of law in Nebraska is that seven years of unexplained absence is presumption of death, and this petitioner attempted by a private contract in the way of a by-law to change the law of Nebraska. Nebraska courts have held this by-law unreasonable. If Nebraska shall be compelled to follow the Illinois decision, then all foreign corporations will have an advantage over domestic corporations. 550 OCTOBER TERM, 1924. Opinion of the Court. 267U.S. Mr. Justice Holmes delivered the opinion of the Court. This is a suit by the beneficiary, of a certificate issued by a fraternal beneficiary society incorporated in Illinois. The member to whom the certificate was issued was the plaintiff’s husband and the ground of recovery is that the husband had disappeared and had not been heard of for ten years before this suit was brought. His expectancy of life according to the tables had not expired and the defence is a by-law of the Corporation to the effect that “ long continued absence of any member unheard of shall not . . . give any right to recover on any benefit certificate . . . until the full term of the member’s expectancy of life, according to the National Fraternal Congress Table of Mortality, has expired, . . . and this law shall be in full force and effect any statute of any state or country or rule of common law of any state or country to the contrary notwithstanding.” The only facts that need be mentioned are that the certificate seems to have been issued in South Dakota, although there was no allegation or proof concerning the law of that State, and that it was issued in 1901, while the by-law relied upon was not adopted until 1908. But the by-law has been held valid and binding upon the members of the Corporation by the Supreme Court of Illinois, although they had become members before the change. Steen v. Modern Woodmen of America, 296 Ill. 104. The Supreme Court of Nebraska affirmed a judgment for the plaintiff, seemingly, from the cases cited, on the ground either that the rule of evidence must be determined by the lex fori, or, more probably, that the bylaw was unreasonable. 197 N. W. 129. The result is that if the validity of the by-law ought to be determined by the laws of Illinois, the plaintiff is allowed to recover upon a state of facts which the contract expressly stipu- MODERN WOODMEN v. MIXER. 551 544 Opinion of the Court. lates shall not give her that right. A writ of certiorari was issued by this Court. 265 U. S. 576. The indivisible unity between the members of a corporation of this kind in respect of the fund from which their rights are to be enforced and the consequence that their rights must be determined by a single law, is elaborated in Supreme Council of the Royal Arcanum v. Green, 237 U. S. 531, 542. The act of becoming a member is something more than a contract, it is entering into a complex and abiding relation, and as marriage looks to domicil, membership looks to and must be governed by the law of the State granting the incorporation. We need not consider what other States may refuse to do, but we deem it established that they cannot attach to membership rights against the Company that are refused by the law of the domicil. It does not matter that the member joined in another State. In the above cited case Green became a member of a Massachusetts corporation in New York, and the State Court held on ordinary principles of contract that his rights were governed by New York law. Green v. Royal Arcanum, 206 N. Y. 591, 597. But the decision was reversed and it was held a failure to give full faith and credit to the Massachusetts charter as construed by the Massachusetts Court that Green was relieved by decree from paying assessments increased by the corporation after his contract was made. We are of opinion that the decision in that case governs this, and that the judgment must be reversed. Judgment reversed. 552 OCTOBER TERM. 1924. Syllabus. 267 U. S. CHAS. WOLFF PACKING COMPANY v. THE COURT OF INDUSTRIAL RELATIONS OF THE STATE OF KANSAS. ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS. Nos. 207 & 299. Argued Nov. 20, 1924.—Decided April 13, 1925. , 1. When a judgment entered by a state court is modified by another entered after a rehearing, the second supersedes the first, and a writ of error to the second alone is proper for review in this Court. P. 561. 2. A decision of a state Supreme Court that provisions of a statute of the State are separable is conclusive on this Court in the case. P. 562. 3. A judgment of reversal is not necessarily an adjudication by the appellate court of any other than the questions in terms discussed and decided. Held that the former decision of this Court in this case (262 U. S. 522) holding the Kansas Industrial Relations Act unconstitutional in so far as it permitted the fixing of wages in plaintiff in error’s packing plant, and reversing the judgment of the Kansas Supreme Court for that reason, was neither an adjudication that the entire act was invalid nor an adjudication that its provisions for fixing hours of labor were valid. P. 562. 4. The Industrial Relations Act of Kansas, which seeks to promote continuity of operation and production in the industries to which it relates by compelling employer and employees to submit their controversies to compulsory settlement by a state agency, is, as applied to a manufacturer of food products, unconstitutional, not only so far as it permits compulsory fixing of wages, (as previously decided, 262 U. S. 522,) but also, and for the same reasons, in the provision for compulsory fixing of hours of labor, since the-compulsion in both these features alike is but part of a system by which the act seeks to compel owner and employees to continue in business on terms not of their own making, which infringes the rights of property and liberty of contract guaranteed by the due process of law clause of the Fourteenth Amendment. P. 563. 5. Whether a power conferred on a state agency to fix hours of labor would be valid if it were conferred independently, and made either general or applicable to all business of a particular class, is not considered. P. 569. 114 Kans. 304, 487, reversed. WOLFF PACKING CO. v. INDUS. COURT. 553 552 Argument for Plaintiff in Error. Error to a judgment of the Supreme Court of Kansas entered, upon rehearing, after receipt of the mandate issued from this Court upon a previous reversal, 262 U. S. 522. The judgment awarded a mandamus to compel obedience to an order of the Kansas administrative agency called the Court of Industrial Relations, in so far as it purported to fix the hours of labor and pay for over time in the meat packing plant of the plaintiff in error. Mr. D. R. Hite, with whom Messrs. John S. Dean and Harry W. Colmery were on the brief, for plaintiff in error. The mandate and judgment of this Court required the vacation of the judgment of the Kansas Supreme Court as a whole and did not authorize its modification upon the original record, § 709 Rev. Stats.; Cowdrey n. Bank, 139 Cal. 293; Davis v. Healey, 22 N. J. 115. The object of the Industrial Court Act is the compulsory arbitration of disputes between employers and employees in designated industries, endangering continuity of operation of such industries. The act was not concerned with the health of employees engaged in operating such industries. Howat’s Case, 109 Kan. 376; Industrial Court v. Packing Co., 109 Kan. 645; Industrial Court v. Packing Co., Ill Kan. 501; Dorchy v. Kansas, 264 U. S. 286; Packing Co. v. Industrial Court, 262 U. S. 522. Bunting v. Oregon, 243 U. S. 426, is not authority for upholding the order of the industrial court fixing hours and conditions of labor. Packing Co. v. Industrial Court, 262 U. S. 522; Lochner v. New York, 198 U. S. 45; Dorchy v. Kansas, supra; Adkins v. Childrens Hospital, 261 U. S. 525. Considered as a statute authorizing an order fixing hours and conditions of labor for packing house employees, the act creating the Court of Industrial Relations encounters the Fourteenth Amendment. Packing Co. v. In- 554 OCTOBER TERM, 1924. Argument for Défendant in Error. 267 U. S. dustrial Court, supra; Lochner n. New York, supra; Dorchy v. Kansas, supra; Allgeyer v. Louisiana, 165 U. S. 578; Adair v. United States, 208 U. S. 161; Coppage v. Kansas, 236 U. S. 1; Truax v. Raich, 239 U. S. 33; Prudential Insurance Co. n. Cheek, 259 U. S. 530; Smyth v. Ames, 169 U. S. 467; Hairston v. D. & W. Ry. Co. 208 U. S. 606; Mugler v. Kansas, 123 U. S. 661; St. Louis Ry. Co. v. Arkansas, 235 U. S. 350; People v. Road Co. 9 Mich. 285; Cooley’s Const. Lim’ns. 7th ed. p. 838; Brick Co. v. Perry, 69 Kan. 300; Howard n. Schwartz, 77 Kan. 609. The parts of the order sustained by the Kansas Supreme Court are void because the necessary effect is to increase the operating expenses of the packing company against its will, notwithstanding the income of the company was and is insufficient to pay the cost of raw material and operating expenses, including the increase of wages required to be paid by such order. Reagan v. Farmers Loan & Trust Co. 154 U. S. 362; Railway Co. v. Mills, 253 U. S. 206; Pa. Coal Co. v. Mahon, 260 U. S. 393. Mr. John G. Egan and Mr. Chester I. Long, with whom Messrs. Charles B. Griffith, Randal C. Harvey and Austin M. Cowan were on the brief, for defendant in error. After reversal and direction to take further proceedings not inconsistent with the opinion of the Supreme Court of the United States, a state court has authority to determine questions not decided by the higher court and to modify its judgment accordingly. The authorities uniformly hold that a judgment of reversal is not an adjudication of any question other than the one actually discussed and decided. Mutual Life Ins. Co. v. Illinois, 193 U. S. 551; Erie Ry. Co. v. Western Trans. Co. 204 U. S. 220. See also: In re Potts, 166 U. S. 263; Murphy v. Utler, 186 U. S. 99; Sou. Building Etc., Co. v. Carey, 117 Fed. 325; Gt. Northern Ry. Co. n. West. Union Tel. Co., WOLFF PACKING CO. v. INDUS. COURT. 555 552 Argument for Defendant in Error. 174 Fed. 321; Taenzer v. Railway Co. 191 Fed. 543; General Inv. Co. v. Ry. Co. 269 Fed. 235. The application of the rule to the case at bar is exemplified by the recent case of Hallanan v. Eureka Pipe Line Co., 261 U. S. 393. In the cases cited above, no distinction is made in cases where further evidence was introduced and the pleadings amended in the lower court and those where no further proceedings were had except the entering of a decree pursuant to the mandate. The question of the validity of the statute and order relating to hours of labor was not determined by this court in the former appeal. The Kansas Industrial Court law, in so far as it authorizes fixing hours of labor in plaintiff in error’s packing plant and penalizes overtime, is valid. The Supreme Court of Kansas, from the start of this litigation, has interpreted the statute as having among its purposes the protection of the health of the workers, and has recognized the fixing of hours of labor as a method of protecting their health. That Court has construed the statute to empower the Court of Industrial Relations to take jurisdiction of this controversy between the Wolff Packing Company and its employees over hours of labor. This jurisdiction can be sustained though the provision of the statute declaring the packing industry to be affected with a public interest be ignored. The opinion of this Court when this case was here before did not say that the business of meat packing might not to any extent be affected with a public interest. The opinion does not intimate that the legislature may not to some extent remove obstacles to the continued or efficient operation or service of the meat packing industry. That the State may to some extent at least remove such obstacles is plain from the establishment by States and by National Government of boards of mediation, conciliation or arbitration to settle disputes between employers and employees. 556 OCTOBER TERM, 1924. Argument for Defendant in Error. 267 U. S. In addition to taking jurisdiction of a controversy which may endanger the continuity or efficiency of service of the meat packing industry, the Court of Industrial Relations may, under § 7 of the act, take jurisdiction of a controversy that may “ affect the production or transportation of the necessaries of life affected or produced by said industries or employments, or produce industrial strife, disorder or waste, or endanger the orderly operation of such industries, employments, public utilities or common carriers, and thereby endanger the public peace or threaten the public health.” For the purpose of this argument, we can pass the question as to the power of the Court of Industrial Relations to take jurisdiction of a controversy which “ may endanger the continuity or efficiency of service of any of said industries,” and consider the other cases where, under § 7, it may take jurisdiction. To some extent the State may intervene to keep open a market to its producers of live stock, to protect the supply of meat food, to prevent the obstruction, crippling or breaking down of the meat-packing industry and the interruption or the loss of employment of the workers therein. An injury to the employer in the industry or to the employees is an injury to public welfare. The interruption or loss of employment of the workers means a deprivation to them and their families and a blow to the prosperity of the community in which they live. The dispute at this plant concerning hours of labor presented a controversy that affected the production of the necessaries of life produced at the plant, caused industrial strife, disorder and waste, injured the orderly operation of the plant, and thereby endangered the public peace and threatened the public health. The facts presented in the controversy come within the provisions of § 7 authorizing the Court of Industrial Relations to take jurisdiction. The dispute over hours of labor was one of WOLFF PACKING CO. v. INDUS. COURT. 557 552 Argument for Defendant in Error. the grounds of the controversy. The court properly took jurisdiction and ordered relief which, if carried out, would remove one of the causes of the controversy and would do away with injuriously long hours of labor. This relief was within the purview of the statute and within the power of the State. The act is uniform in its operation and there is no denial of the equal protection of the laws. Radice v. New York, 264 U. S. 292. All manufacturers of food products are equally subject to the Industrial Court law. so far as it is valid. Hours of labor in packing plants are a proper subject for regulations under the police power. Holden v. Hardy, 169 U. S. 366; Bunting v. Oregon, 243 U. S. 426; Adkins v. Childrens Hospital, 261 U. S. 525; Radices. New York, supra. The Court of Industrial Relations has found the fact that prolonged hours of labor are detrimental to the health of the worker, and to the public welfare, in the plant of the plaintiff in error, and this finding is supported by the evidence in the record, and has been approved by the Kansas Supreme Court. This finding is entitled to the same consideration given that of the legislature in Holden v. Hardy, supra; Bunting v. Oregon, supra; Radice v. New York, supra. But the validity of the order in question concerning hours does not depend in any respect on the public interest or lack of public interest in the meat packing industry. This was important on the question of wages, but not as to hours of labor. In neither the Holden, Bunting nor Radice cases, cited above, was the nature of the business considered except its effect on the health of the worker, and practically all the industries affected thereby were impressed with no public interest whatever, and certainly not as much as is conceded to the packing industry in the first decision of this case. Hours of labor is a proper subject for regulation in any industry where prolonged hours are detrimental to the 558 OCTOBER TERM, 1924. Argument for Defendant in Error. 267 U. S. health of the workers. The portions of the statute relating to hours are valid despite the invalidity of the wagefixing provisions. Dorchy v. Kansas, supra; State v. Howat, 107 Kan. 423; State, ex rel., v. Howat, 109 Kan. 376; The State v. Howat, 116 Kan. 412. There is no inconsistency between these decisions and the case of Hill v. Wallace, 259 U. S. 44, where this Court found invalid certain sections of the futures trading act (c. 76, 42 Stat., 178), and likewise found other sections invalid because so interwoven with the invalid regulations that they could not be separated. See United States v. Reese, 92 U. S. 214. All that is necessary here, and all that has been done by the State Supreme Court, is to strike out the invalid word “ wages ” and the invalid provisions relating to wages only. An important distinction between this case and the cases of Hill v. Wallace and United States n. Reese, is that in both of those cases a federal statute was involved, and it was the primary duty of this Court to decide whether such statutes were severable. But in the case at bar a state statute is involved, and the duty of determining its severability falls upon the state court, and the state court has held the statute to be severable. The order affects women as well as men. Freedom of contract as to hours of labor must yield to police power. Wilson v. New, 243 U. S. 332; Bunting n. Oregon, supra; B. & 0. R. R. Co. v. I. C. C., 221 U. S. 612; M. K. & T. v. United States, 231 U. S. 112; Holden v. Hardy, supra; Mueller v. Ore., 208 U. S. 412; Bosley v. McLaughlin, 236 U. S. 385; Miller v. Wilson, 236 U. S. 373; Riley v. Mass., 232 U. S. 671; Atkin n. Kansas, 191 U. S. 207; Arizona Copper Co. n. Hammer, 250 U. S. 400; New York Cent. Ry. Co. v. White, 243 U. S. 188; New York Cent. Ry. Co. v. Bianc, 250 U. S. 596. See, also, Central Lumber Co. v. South Dakota, 226 U. S. 157; Middleton v. Texas Power & Light Co., 249 U. S. 152; German Alliance Ins. Co. n. Lewis, 233 U. S. 389; Na- WOLFF PACKING CO. v. INDUS. COURT. 559 552 Opinion of the Court. tional Safety Deposit Co. v. Stead, 232 U. S. 58; Mani-gault v. Springs, 199 U. S. 472; Grand Trunk W. R. R. Co. v. R. R. Commas. of Indiana, 221 U. S. 400. The act is not invalid because it operates only when there is a controversy. Miller v. Wilson, 236 U. S. 373. The claim of confiscation is not well founded. The fact that an industry is doing business at a loss cannot defeat a proper exercise of the police power. In all cases where an exercise of the police power was challenged, and the point of the loss to the individual has been raised, it has been decided adversely to such contention (except in price-fixing cases). Mugler v. Kansas, 123 U. S. 623; California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306; Hadacheck v. Sebastian, 239 U. S. 394; Hebe Co. v. Shaw, 248 U. S. 297; Atlantic Coast Line v. Goldsboro, 232 U. S. 548. The plaintiff in error has proven no operating loss due to limitation of the hours of labor of its employees. Chicago & Grand Trunk Ry. Co. v. Wellman, 143 U. S. 339. The burden was upon the Packing Company to establish that the order of the Industrial Court was confiscatory. Mr. Justice Van Devanter delivered the opinion of the Court. This was an original proceeding in mandamus in the Supreme Court of Kansas to compel the Wolff Packing Company to put into effect an order of a state agency, called the Court of Industrial Relations, determining a dispute respecting wages, hours of labor and working conditions in a slaughtering and packing plant owned and operated by the company. The order was made in a compulsory proceeding under a Kansas statute, called the Industrial Relations Act, c. 29, Laws 1920, Special Session, and consisted of 19 distinct paragraphs—some fixing wages, some fixing hours of labor and pay for overtime, and others prescribing working conditions. After a hear- 560 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. ing, the Supreme Court eliminated the paragraphs relating to working conditions, because made without the required notice, and awarded a peremptory writ of mandamus commanding obedience to the other paragraphs; 109 Kan. 629; 111 Kan. 501. That judgment was brought to this Court for review and was reversed with a direction that the case be remanded for further proceedings not inconsistent with the opinion rendered at the time. 262 U. S. 522. After receiving the mandate, the state court vacated its original judgment; eliminated the paragraphs relating to working conditions and those fixing wages; also eliminated from the paragraphs fixing hours of labor the clauses relating to pay for overtime; and awarded a peremptory writ of mandamus commanding obedience to what remained of the last paragraphs. 114 Kan. 304. On a rehearing, the court modified that judgment by awarding a peremptory writ of mandamus to compel obedience to the paragraphs fixing hours of labor, including the clauses relating to pay for overtime. 114 Kan. 487. The paragraphs to which obedience was thus finally commanded are as follows: “ 3. A basic working day of eight hours shall be observed in this industry; but a nine-hour day may be observed not to exceed two days in any one week without penalty: Provided, however, That if the working hours of the week shall exceed forty-eight in number, all over forty-eight shall be paid for at the rate of time and one-half: furthermore, in case a day in excess of the eight hour day shall be observed more than two days in any one week, all over eight hours, except for said two days in said week, shall be paid for at the rate of time and one-half, even though the working hours of the week may be forty-eight hours or fewer.” “ 14. Workers paid by the week or day, if employed within the plant and not within the office or sales department, shall be subject to hours of work and overtime WOLFF PACKING CO. v. INDUS. COURT. 561 552 Opinion of the Court. as other employees under the terms of finding No. 3 hereof.” “ 19. In departments operating twenty-four hours a day and seven days a week, each employee therein shall be entitled to one day off each week. In other departments work performed on Sunday and legal holidays shall be paid for at the rate of time and one-half»” The order, according to its terms, was to remain in force until changed by the Court of Industrial Relations or by agreement of the parties with the approval of that agency. The company has brought the case here again—this time on two writs of error. One covers the judgment first entered after receipt of the mandate of this Court, and the other covers the judgment entered on the rehearing. The first of these writs can serve no purpose and must be dismissed. The rehearing was seasonably requested and the judgment entered thereon became the final judgment, the other being superseded by it. Throughout the mandamus proceedings the company insisted that the Industrial Relations Act, on which the order was based, was in conflict with the provision of the Fourteenth Amendment that no State shall deprive any person of liberty or property without due process of law. This insistence was wholly rejected when the original judgment, heretofore reversed, was rendered, and was largely rejected when the judgment on the rehearing was given. When the case was first before this Court the discussion at the bar and in the briefs chiefly related to the validity of the parts of the Act permitting the fixing of wages; and the opinion then delivered particularly dealt with that question;, the ultimate conclusion, as expressed therein, being: “We think the Industrial Court Act, in so far as it permits fixing of wages in plaintiff in error’s packing 42684°—25------36 562 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. house, is in conflict with the Fourteenth Amendment and deprives it of its property and liberty of contract without due process of law.” That conclusion, without more, required a reversal of the judgment of the state court. The parts of the Act permitting the fixing of hours of labor were not specially dealt with, and were not affected by the decision, save as the reasons on which it proceeded might be applicable to them. The reversal was with a direction that the case be remanded for further proceedings not inconsistent with this Court’s decision, and therefore the mandate operated particularly to require that the parts of the Act permitting the fixing of wages be regarded as invalid. In the proceedings which followed the receipt of the mandate, the state court held that the other parts of the Act were separable from those permitting the fixing of wages, and also pronounced them constitutional. As the question of separability was a state question, the decision of that court thereon is conclusive here. Dorchy v. Kansas, 264 U. S. 286; Hallanan v. Eureka Pipe Line Co., 261 U. S. 393, 397. The decision on the constitutional question is all that we can review. Both parties rely on our decision when the case was first here. One insists that by reversing the original judgment of the state court, and not merely a part of it, we adjudged the invalidity of the entire Act; and the other that by particularly declaring the provisions permitting the fixing of wages invalid and saying nothing about the provisions permitting the fixing of hours of labor we impliedly held the latter valid. Both contentions are wrong. “A judgment of reversal is not necessarily an adjudication by the appellate court of any other than the questions in terms discussed and decided,” Mutual Life Insurance Company n. Hill, 193 U. S. 551, 553. The company next contends that the decision, even though not in terms determining the question of the valid- WOLFF PACKING CO. v. INDUS. COURT. 563 552 Opinion of the Court. ity of the provisions permitting the fixing of hours of labor, recognized and gave effect to principles which are applicable to that question and if applied will solve it. A survey of the Act and of the decision will show that this contention is well taken. The declared and adjudged purpose of the Act is to ensure continuity of operation and production in certain businesses which it calls “ essential industries.” To that end it provides for the compulsory settlement by a state agency of all labor controversies in such businesses which endanger the intended continuity. It proceeds on the assumption that the public has a paramount interest in the subject which justifies the compulsion. The businesses named include, among others, that of manufacturing or preparing food products for sale and human consumption. The controversies to be settled include, among others, those arising between employer and employees over either wages or hours of labor. The state agency charged with the duty of making the settlement is the Court of Industrial Relations. Although called a court it is an administrative board. It is to summon the disputants before it, to give them a hearing, to settle the matter in controversy—as by fixing wages or hours of labor where they are what is in dispute—to embody its findings and determination in an order, and, if need be, to institute mandamus proceedings in the Supreme Court of the State to compel compliance with its order. The order is to continue in effect for such reasonable time as the agency may fix, or until changed by agreement of the parties with its approval. The employer may discontinue the business (a) where it can be conducted conformably to the order only at a loss, or (b) where for good cause shown the agency approves; and individual employees may quit the service in the exercise of a personal privilege, but may not induce others to quit or combine with them to do so. With these qualifications both employer 564 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. and employees are required to continue the business on the terms fixed in the order, violations and evasions being penalized. The authority given to the agency to fix wages or hours of labor is not general, nor is it to be exerted independently of the system of compulsory settlement. On the contrary, it is but a feature of that system and correspondingly limited in purpose and field of application. No distinction is made between wages and hours of labor; both are put on the same plane. In the fixing of wages regard is to be had for what is fair between employer and employees, and in the fixing of hours of labor regard is to be had for what are healthful periods; but neither is to be fixed save in the compulsory adjustment of an endangering controversy to the end that the business shall go on. The following excerpt from the opinion of the Supreme Court of the State in State ex ret. v. Howat, 109 Kan. 376, 417, explains the pervading theory of the Act: 11 Heretofore the industrial relationship has been tacitly regarded as existing between two members—industrial manager, and industrial worker. They have joined wholeheartedly in excluding others. The legislature proceeded on the theory there is a third member of those industrial relationships which have to do with production, preparation and distribution of the necessaries of life—the public. The legislature also proceeded on the theory the public is not a silent partner. When the dissensions of the other two become flagrant, the third member may see to it the business does not stop.” On three occasions when the Act was before us we referred to it as undertaking to establish a system of “ compulsory arbitration.” Howat v. Kansas, 258 U. S. 181, 184; Wolff Packing Company v. Court of Industrial Relations, 262 U. S. 522, 542; Dorchy v. Kansas, 264 U. S. 286, 288. The Supreme Court of the State in a recent opinion criticizes this use of the term 11 arbitration.” WOLFF PACKING CO. v. INDUS. COURT. 565 552 Opinion of the Court. State v. Howat, 116 Kan. 412, 415. We recognize that in its usual acceptation the term indicates a proceeding based entirely on the consent of the parties. And we recognize also that this Act dispenses with their consent. Under it they have no voice in selecting the determining agency or in defining what that agency is to investigate and determine. And yet the determination is to bind them even to the point of preventing them from agreeing on any change in the terms fixed therein, unless the agency approves. To speak of a proceeding with such attributes merely as an arbitration might be subject to criticism, but we think its nature is fairly reflected when it is spoken of as a compulsory arbitration. Of course, our present concern is with the essence of the system rather than its name. In this connection it is well to observe that in the opinion last mentioned the state court recognizes that the system, while intended to be just between employer and employees, proceeds on the theory that the public interest is paramount, as was explained in State ex rel. v. Howat, supra. The survey just made of the Act, as construed and applied in the decisions of the Supreme Court of the State, shows very plainly that its purpose is not to regulate wages or hours of labor either generally or in particular classes of business, but to authorize the state agency to fix them where, and in so far as, they are the subjects of a controversy the settlement of which is directed in the interest of the public. In short, the authority to fix them is intended to be merely a part of the system of compulsory arbitration and to be exerted in attaining its object, which is continunity of operation and production. When the case was first here the question chiefly agitated, and therefore discussed and decided, was whether the authority to fix wages as an incident of the compulsory arbitration could be applied to a business like that of the Wolff Company consistently with the protec 566 OCTOBER TERM, 1924. Opinion of the Court. 267 IT. S. tion which the due process of law clause of the Fourteenth Amendment affords to the liberty of contract and rights of property. The question was answered in the negative and the Act was held invalid in so far as it gives that authority. The subject was much considered and the principles which were recognized and applied were distinctly stated. At the outset the Court pointed out that the Act assumes as a “ necessary postulate ” that the State, in the interest of the public, “ may compel those engaged in the manufacture of food and clothing, and the production of fuel, whether owners or workers, to continue in their business or employment on terms fixed by an agency of the State if they cannot agree.” Then, after referring to the limited privilege of withdrawing from the business or employment which the Act accords to owners and employees who may be dissatisfied with the determination, the Court said [534]: 11 These qualifications do not change the essence of the act. It curtails the right of the employer on the one hand, and of the employee on the other, to contract about his affairs. This is part of the liberty of the individual protected by the guarantee of the due process clause of the Fourteenth Amendment. Meyer v. Nebraska, ante, 390-While there is no such thing as absolute freedom of contract and it is subject to a variety of restraints, they must not be arbitrary or unreasonable. Freedom is the general rule, and restraint the exception. The legislative authority to abridge can be justified only by exceptional circumstances. Adkins v. Children’s Hospital, 261 U. S. 525.” Various matters which were relied on as justifying the attempted restraint or abridgement were considered and pronounced inadequate. Among them was the assumption in the Act that a business like that in question—preparing food for sale and human consumption—is so far WOLFF PACKING CO. v. INDUS. COURT. 567 552 Opinion of the Court. affected with a public interest that the State may compel its continuance, and, if the owner and employees cannot agree, may fix the terms through a public agency to the end that there shall be continuity of operation and production. This assumption was held to be without any sound basis and its indulgence by the state legislature was declared not controlling. The court recognized that, in a sense, all business is of some concern to the public and subject to some measure of regulation, but made it plain that the extent to which regulation reasonably may go varies greatly with different classes of business and is not a matter of legislative discretion solely, but is a judicial question to be determined with due regard to the rights of the owner and employees. Care was taken to point out that operating a railroad, keeping an inn, conducting an elevator and following a common calling are not all in the same class, and particularly to point out the distinctions between a quasi-public business conducted under a public grant imposing a correlative duty to operate, a business originally private which comes to be affected with a public interest through a change in pais, and a business which not only was private in the beginning but has remained such. The conclusion was that power to compel the continuance of a business because affected with a public interest is altogether exceptional. On this subject the Court said: “ An ordinary producer, manufacturer or shopkeeper may sell or not sell as he likes, United States n. TransMissouri Freight Association, 166 U. S. 290, 320; Terminal Taxicab Co. v. District of Columbia, 241 U. S. 252, 256, and while this feature does not necessarily exclude businesses from the class clothed with a public interest, German Alliance Insurance Co. v. Lewis, 233 U. S. 389, it usually distinguishes private from quasi-public occupations.” “ It involves a more drastic exercise of control to impose limitations of continuity growing out of the public 568 OCTOBER TERM, 1924. Opinion of the Court. 267 U. S. character of the business upon the employee than upon the employer; and without saying that such limitations upon both may not be sometimes justified, it must be where the obligation to the public of continuous service is direct, clear and mandatory and arises as a contractual condition express or implied of entering the business either as owner or worker. It can only arise when investment by the owner and entering the employment by the worker create a conventional relation to the public somewhat equivalent to the appointment of officers and the enlistment of soldiers and sailors in military service.” “ The penalties of the act are directed against effort of either side to interfere with the settlement by arbitration. Without this joint compulsion, the whole theory and purpose of the act would fail. The State cannot be heard to say, therefore, that upon complaint of the employer, the effect upon the employee should not be a factor in our judgment.” “ The power of a legislature to compel continuity in a business can only arise where the obligation of continued service by the owner and its employees is direct and is assumed when the business is entered upon. A common carrier which accepts a railroad franchise is not free to withdraw the use of that which it has granted to the public. It is true that if operation is impossible without continuous loss, Brooks-Scanlon Co. n. Railroad Commission, 251 U. S. 396; Bullock v. Radroad Commission, 254 U. S. 513, it may give up its franchise and enterprise, but short of this, it must continue. Not so the owner [in another field] when by mere changed conditions his business becomes clothed with a public interest. He may stop at will whether the business be losing or profitable.” Applying these principles, the Court was of opinion that the business in question is one which the State is without power to compel the owner and employees to continue. WOLFF PACKING CO. v. INDUS. COURT. 569 552 Opinion of the Court. On further reflection we regard the principles so stated and applied as entirely sound. They are as applicable now as they were then. The business is the same and the parties are the same. So, we reach the same conclusion now that we reached then. The system of compulsory arbitration which the Act establishes is intended to compel, and if sustained will compel, the owner and employees to continue the business on terms which are not of their making. It will constrain them not merely to respect the terms if they continue the business, but will constrain them to continue the business on those terms. True, the terms have some qualifications, but as shown in the prior decision the qualifications are rather illusory and do not subtract much from the duty imposed. Such a system infringes the liberty of contract and rights of property guaranteed by the due process of law clause of the Fourteenth Amendment. “ The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect.” Meyer v. Nebraska, 262 U. S. 390, 399. The authority which the Act gives respecting the fixing of hours of labor is merely a feature of the system of compulsory arbitration and has no separate purpose. It was exerted by the state agency as a part of that system and the state court sustained its exertion as such. As a part of the system it shares the invalidity of the whole. Whether it would be valid had it been conferred independently of the system and made either general or applicable to all businesses of a particular class we need not consider, for that was not done. It follows that the state court should have declined to give effect to any part of the order of the state agency. No. 207. Writ of error dismissed. No. 299. Judgment reversed. 267 U. S. OCTOBER TERM, 1924. Decisions Per Curiam, Etc. 571 DECISIONS PER CURIAM, FROM JANUARY 13, 1925, TO AND INCLUDING APRIL 13, 1925, NOT INCLUDING ACTION ON PETITIONS FOR WRITS OF CERTIORARI. No. 698. United States ex rel. Fink v. Tod, Commissioner of Immigration. Certiorari to the Circuit Court of Appeals for the Second Circuit. January 13, 1925. Judgment reversed with costs; and cause remanded to the District Court of the United States for the Southern District of New York with directions to discharge the petitioner, upon confession of error by Solicitor General Beck, for respondent. Mr. Max J. Kohler and Mr. Louis Marshall for petitioner. No. 172. Cowokochee v. James A. Chapman and R. M. McFarlin. Argued January 15, 1925. Decided January 15, 1925. Writ of error dismissed. Mr. Lewis C. Lawson for plaintiff in error. No appearance for defendant in error. See post, p. 572. No. —, Original. Ex parte: In the Matter of Frank C. Mebane. Submitted January 12, 1925. Decided January 19, 1925. Motion for leave to file a petition for a writ of mandamus herein denied. Mr. Benjamin Catchings for petitioner. No. —, Original. Ex parte: In the Matter of Benjamin Catchings. Submitted January 12, 1925. Decided January 19, 1925. Motion for leave to file a petition for a writ of mandamus herein denied. Mr. Benjamin Catchings, pro se. No. 534. Ellis N. Black v. Lura W. Black. Error to the Supreme Court of the State of Ohio. Motion to 572 OCTOBER TERM, 1924. Decisions Per Curiam, Etc. 267 U. S. dismiss submitted January 12, 1925. Decided January 19, 1925. Per Curiam. Dismissed for the want of jurisdiction upon the authority of section 237 of the Judicial Code, as amended by the act of September 6, 1916, c. 448, sec. 2, 39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5, 6. Mr. Frank Davis, Jr., for defendant in error, in support of the motion. Mr. John S. Black, for plaintiff in error, in opposition to the motion. No. 165. 0. H. Chrisp v. James C. Davis, Director General, as Agent. Error to the Supreme Court of the State of Arkansas. Submitted January 14, 1925. Decided January 19, 1925. Per Curiam. Dismissed for the want of jurisdiction upon the authority of section 237 of the Judicial Code, as amended by the act of September 6, 1916, c. 448, sec. 2, 39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5, 6. Mr. Leslie C. Garnett and Mr. J. Merrick Moore for plaintiff in error. Mr. A. A. McLaughlin for defendant in error. No. 186. Nicodemus B. Hurr et al., v. Everett W. Davis et al. Error to the Supreme Court of the State of Minnesota. Submitted January 15, 1925. Decided January 19, 1925. Per Curiam. Dismissed for the want of jurisdiction upon the authority of section 237 of the Judicial Code, as amended by the act of September 6, 1916, c. 448, sec. 2,39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5, 6. Mr. Robert C. Bell for plaintiffs in error. No appearance for defendants in error. No. 172. Cowokochee v. James A. Chapman et al. Error to the Supreme Court of the State of Oklahoma. Argued January 15, 1925. Announced January 19, 1925. OCTOBER TERM, 1924. 573 267 U. S. Decisions Per Curiam, Etc. Per Curiam. Dismissed for want of jurisdiction upon the authority of section 237 of the Judicial Code, as amended by the act of September 6, 1916, c. 448, sec. 2, 39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5, 6. Mr. Lewis C. Lawson, for plaintiff in error. No appearance for defendant in error. (Judgment entered January 15, 1925.) See ante, p. 571. No. 217. Bartlett & Kling v. United States. Appeal from the Court of Claims. Argued for appellant January 21, 1925. Decided January 21, 1925. Judgment affirmed, without prejudice. Mr. Benj. Carter for appellant. Solicitor General Beck and Mr. Merrill E. Otis, Special Assistant to the Attorney General, for the United States. No. 190. Proprietors of the Locks and Canals on Merrimack River v. Boston and Maine Railroad. Error to the Land Court of the State of Massachusetts. Argued January 19, 1925. Decided January 26, 1925. Per Curiam. Dismissed for the want of jurisdiction upon the authority of Hulbert v. Chicago, 202 U. S. 275, 280; Cleveland & Pittsburgh R. R. Co. v. Cleveland, 235 U. S. 50, 53; Hiawassee River Power Co. v. Carolina-Tennessee Power Co., 252 U. S. 341, 344. Mr. H. M. Davis, with whom Mr. Felix Rackeman was on the brief, for plaintiffs in error. Mr. A. R. Tisdale for defendants in error. No. 213. Board of Directors of Miller Levee District No. 2 v. Prairie Pipe Line Company. Appeal from the Circuit Court of Appeals for the Eighth Circuit. Argued January 21, 1925. Decided January 26, 1925. Dismissed for the want of jurisdiction upon the authority of Shulthis v. McDougal, 225 U. S. 561, 569; Southern 574 OCTOBER TERM, 1924. Decisions Per Curiam, Etc. 267 U. S. Pacific Co. v. Stewart, 245 U. S. 359, 362; Barnett v. Kunkel, 264 U. S. 16, 21. Mr. Henry Moore, jr., for appellant. Mr. W. H. Arnold, jr., with whom Messrs. W. H. Arnold, T. J. Flannelly, and H. C. Black were on the brief, for appellee. No. 221. John Clay et al., Copartners, etc., v. The District Court of the Twelfth District of the State of Colorado, etc. Error to the Supreme Court of the State of Colorado. Argued January 22, 1925. Decided January 26, 1925. Per Curiam. Dismissed for the want of jurisdiction upon the authority of section 237 of the Judicial Code, as amended by the act of September 6, 1916, c. 448, sec. 2, 39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5, 6. Mr. P. A. Wells and Mr. Wm. V. Hodges, for plaintiff in error. Mr. LaFayette Twitchell for defendant in error. No. 228. Ben C. Davisson v. State of New Mexico. Error to the Supreme Court of the State of New Mexico. Motion to dismiss submitted January 23, 1925. Decided January 26, 1925. Per Curiam. Dismissed for the want of jurisdiction upon the authority of (1) Farrell v. O’Brien, 199 U. S. 89, 100; Toop n. Ulysses Land Co., 237 U. S. 580, 583; (2) Hurtado v. California, 110 U. S. 516. Mr. Milton J. Helmick and Mr. John W. Armstrong for defendant in error in support of the motion, submitted. No brief filed for plaintiff in error. No. 203. Matthew Lowe v. Benjamin E. Dyson, U. S. Marshal and No. 204. William P. McCarthy v. Benjamin E. Dyson, U. S. Marshal. Error to the District Court of the United States for the Southern District of Florida. 267 U.S. OCTOBER TERM, 1924. Decisions Per Curiam, Etc. 575 Argued January 19, 1925. Decided January 26, 1925. Per Curiam. Affirmed, upon the authority of Riddle v. Dyche, 262 U. S. 333, 335; Got? v. Lane, 265 U. S. 393, 401. Mr. Merwin S. Bobst for plaintiffs in error. Solicitor General Beck and Assistant Attorney General Donovan for the United States. No. 760. Indian Refining Company v. John C. Taylor. Error to the Supreme Court of the State of Indiana. Motion to dismiss submitted January 26, 1925. Decided February 2, 1925. Per Curiam. Dismissed for want of jurisdiction, upon the authority of (1) Toop n. Ulysses Land Co., 237 U. S. 580, 583; Piedmont Power & Light Co. v. Graham, 253 U. S. 193, 195; (2) Texas Co. v. Brown, 258 U. S. 466, 477, 478. Mr. U. S. Lesh, for defendant in error, in support of the motion to dismiss. Mr. James W. Noel, Mr. John Wallace Young and Mr. Richmond Wied, for plaintiff in error, in opposition to the motion. No. 247. Joseph O’Mara v. Harry C. Crampton. Error to the Supreme Court of the State of Indiana. Argued January 26, 27, 1925. Decided February 2, 1925. Per Curiam. Dismissed for want of jurisdiction upon the authority of Missouri & Kansas Interurban Ry. Co. v. Olathe, 222 U. S. 185, 186; Haseltine v. Bank, 183 U. S. 130, 131; Schlosser v. Hemphill, 198 U. S. 173, 175. Mr. Henry W. Moore for plaintiff in error. Mr. Henry Adamson, for defendant in error, submitted. No. 251. G. L. Center v. United States. Error to the District Court of the United States for the Western District of South Carolina. Argued January 27, 1925. Decided February 2, 1925. Per Curiam. Affirmed, upon 576 OCTOBER TERM, 1924. Decisions Per Curiam, Etc. 267 U. S. the authority of Bordeau v. McDowell, 256 U. S. 465, 475. Mr. Assistant Attorney General Donovan for the United States. Mr. Richard A. Ford, for plaintiff in error, submitted. No. 242. Forrest P. Tayloe v. United States. Appeal from the Court of Claims. Argued January 26, 1925. Decided February 2, 1925. Per Curiam. Affirmed, upon the authority of Brawley v. United States, 96 U. S. 168, 173; Willard Co. v. United States, 262 U. S. 489, 494. Mr. Harry Peyton for appellant. Mr. Alfred A. Wheat, Special Assistant to the Attorney General, with whom Solicitor General Beck was on the brief, for the United States. No. 271. Anthony Colora v. State of New Jersey. Error to the Court of Errors and Appeals of the State of New Jersey. Submitted January 29, 1925. Decided February 2, 1925. Per Curiam. Affirmed, upon the authority of Viglotti v. Pennsylvania, 258 U. S. 403; Molinari v. Maryland, 263 U. S. 685. Mr. Edmund A. Hayes for plaintiff in error. Mr. Joseph E. Stricker for defendant in error. No. 288. First National Bank of Mobile v. United States. Appeal from the District Court of the United States for the Southern District of Alabama. Argued January 30, 1925. Decided February 2, 1925. Per Curiam. Affirmed, upon the authority of Essgee v. United States, 262 U. S. 151, 155; Hale n. Henkel, 201 U. S. 43, 69; Wilson v. United States, 221 U. S. 361, 382; Wheeler v. United States, 226 U. S. 478, 490. Mr. Merrill E. Otis, with whom Solicitor General Beck was on the brief, for the United States. Mr. Gregory L. Smith, for appellant, submitted. 267 U. S. OCTOBER TERM, 1924. Decisions Per Curiam, Etc. 577 No. —, Original. Ex parte Barker. February 2, 1925. Per Curiam. Application for leave to file petition for a writ of habeas corpus denied, upon the authority of section 338 of the Criminal Code; United States v. Pridgeon, 153 U. S. 48, 63; Application for leave to proceed in forma pauperis denied. No. 250. Yadkin Railroad Company et al. v. Ada Sigmon, Administratrix, etc. On writ of certiorari to the Supreme Court of the State of North Carolina. Argued January 27, 1925. Decided February 2, 1925. Per Curiam. Reversed, and remanded for further proceedings, upon the authority of Davis v. Kennedy, 266 U. S. 147; Frese v. Chicago, Burlington & Quincy R. R. Co., 263 U. S. 1, 3. Mr. S. R. Prince, with whom Mr. H. O. B. Cooper, Mr. B. S. Womble and Mr. L. E. Jeffries were on the brief for petitioners. Mr. T. D. Maness for respondent. No. 275. Dennis B. Chapin v. D. A. Walker, United States Marshal. Appeal from the District Court of the United States for the Western District of Texas. Submitted January 29, 1925. Decided February 2,1925. Per Curiam. Cause transferred to the Circuit Court of Appeals for the Fifth Circuit, upon the authority of the act of September 14, 1922, c. 305, 42 Stat. 837; Heitler v. United States, 260 U. S. 438. Mr. C. M. Chambers, for appellant. Solicitor General Beck, Assistant Attorney General Donovan and Mr. H. S. Ridgley for the United States. No. 341. United States v. Lucia Naponiello et al. Error to the District Court of the United States for the Northern District of Illinois. Motion to dismiss submitted November 17, 1924. Decided March 2, 1925. Per 42684’—25----37 578 OCTOBER TERM, 1924. Decisions Per Curiam, Etc. 267 U. S. Curiam. Dismissed for the want of jurisdiction upon the authority of Farmers and Mechanics National Bank n. Wilkinson, 266 U. S. 503; Union Trust Co. v. Westhus, 228 U. S. 519, 522-524; Brown v. Alton Water Co., 222 U. S. 325, 331-334. Mr. Charles N. Goodnow for defendants in error in support of the motion. Solicitor General Beck and Assistant Attorney General Donovan for the United States in opposition to the motion. No. 562. Corby Estate v. City of St. Joseph. Error to the Supreme Court of the State of Missouri. Motion to dismiss submitted January 12, 1925. Decided March 2, 1925. Per Curiam. Dismissed for the want of jurisdiction, upon the authority of section 237 of the Judicial Code, as amended by the act of September 6, 1916, c. 448, sec. 2, 39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5, 6. Mr. John E. Dolman for plaintiff in error. Mr. H. K. White for defendant in error. No. 226. Sallie Canard v. R. E. Snell, Jr., et al. Error to the Supreme Court of the State of Oklahoma. Argued January 22, 23, 1925. Decided March 2, 1925. Per Curiam. Dismissed for the want of jurisdiction upon the authority of section 237 of the Judicial Code, as amended by the act of September 6, 1916, c. 448, sec. 2, 39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5, 6. Mr. Lewis C. Lawson for plaintiff in error. Mr. Joseph C. Stone for defendants in error. See post, p. 596. No. 254. Joseley Tiger v. Aaron Drumright et al. Error to the Supreme Court of the State of Oklahoma. Argued January 27, 28, 1925. Decided March 2, 1925. Per Curiam. Dismissed for the want of jurisdiction upon the authority of section 237 of the Judicial Code, as 267 U.S. OCTOBER TERM, 1924. Decisions Per Curiam, Etc. 579 amended by the act of September 6, 1916, c. 448, sec. 2, 39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5, 6. Mr. Lewis C. Lawson for plaintiff in error. Mr. Malcolm E. Rosser for defendants in error, submitted. No. 267. W. C. Singleton v. State of Georgia. Error to the Supreme Court of the State of Georgia. Submitted January 29, 1925. Decided March 2, 1925. Per Curiam. Dismissed for the want of jurisdiction, upon the authority of section 237 of the Judicial Code, as amended by the act of September 6, 1916, c. 448, sec. 2, 39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5, 6. Mr. G. Y. Harrell and Mr. John C. Cooper for plaintiff in error, submitted. No brief filed for defendant in error. No. 590. J. C. Crowson v. Michael Cody et al. Error to the Supreme Court of the State of Alabama. Submitted December 8, 1924. Decided March 2, 1925. Petition for rehearing denied. Per Curiam. Dismissed for the want of jurisdiction upon the authority of section 237 of the Judicial Code, as amended by the act of September 6, 1916, c. 448, sec. 2, 39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5, 6; Ireland y. Woods, 246 U. S. 323, 328; Stadelman v. Miner, 246 U. S. 544, 546; Chicago Great Western R. R. Co. y. Basham, 249 U. S. 164, 165; Citizens’ Bank v. Opperman, 249 U. S. 448, 450. (See 266 U. S. 590.) Mr. W. A. Gunter for plaintiff in error. Mr. Fred 8. Ball for defendants in error. No. —. Ex parte: In the matter of Ivan Glava-danovic. March 2, 1925. Motion for leave to file a petition for a writ of mandamus herein denied. Ivan Glavadanovic pro se. 580 OCTOBER TERM, 1924. Decisions Per Curiam, Etc. 267 U.S. No. 389. Guardian Savings & Trust Company, Trustee, v. Road Improvement District No. 7 of Poinsett County, Arkansas. Order entered March 2, 1925. Order. It is ordered by this court that the direction in the opinion heretofore filed [ante, p. 1] to send the case back to the District Court of the United States for the Eastern District of Arkansas is changed, and the case sent back to the Circuit Court of Appeals for the Eighth Circuit for further proceedings, and the mandate already issued shall be amended accordingly. No. 13, Original. State of Oklahoma v. State of Texas, United States, Intervener. In Equity. Orders entered March 9, 1925. The report of the boundary commissioners herein of the work done and the time employed and expenses incurred in the survey, marking and mapping of the boundary between the States of Texas and Oklahoma, along the Red River in the Big Bend and Fort Augur areas pursuant to the decree of March 12, 1923, (261 U. S. 340) is approved and adopted. Compensation of commissioners fixed, to be charged, with the expenses shown in the report, as part of the costs of the case, to be borne and paid for by the three parties in the proportions specified in said decree, the parties to be credited with amounts already advanced. [For the decree delivered on this day reciting and approving the report of survey along the Fort Augur area and establishing the boundary accordingly, see ante, p. 452.] Motion of the National Petroleum & Refining Company for an order directing the receiver to recharge the expenses relating to well 169 denied. Motion of the Supreme Oil Company, Sam Barkley and The Farmer’s State Bank of Burkburnett, Texas, for particular relief specified therein, denied. On consideration of the showing made by the Kirby Petroleum Company in response to the fourth paragraph 267 U. S. OCTOBER TERM, 1924. Decisions Per Curiam, Etc. 581 of the order of January 19, 1925 [ante, p. 9], the receiver is instructed to pay to such company $2,904.13 out of the net proceeds derived from well 139—such payment to be in .full discharge of all claims against the receivership by reason of the work done and expenses incurred by such company and its predecessor, the Bass Petroleum Company, in drilling that well prior to the receivership. The objection made by Tom Testerman to the allowance and payment of this claim is overruled. On consideration of that part of the thirteenth report of the receiver which shows at page 17 that certain net proceeds derived from wells within the portion of the receivership area adjudged to be in the State of Texas are without any known claimant, or belong to persons whose whereabouts are not known and who have not applied for them although warned to do so by due public notice, it is ordered that so much of such proceeds as remain thus unclaimed on April 15, 1925, be paid over to the State of Texas to the end that that State may take such action concerning the same as may be appropriate in respect of unclaimed property within the State. In making this payment the receiver is instructed to specify the well from which each fund was derived and otherwise to identify it as nearly as may be practicable. The receiver is instructed to pay over to the Secretary of the Interior, as the representative of the United States, within ten days after the date of this order $1,100,000.00 out of the remaining net impounded funds derived from river-bed wells and from interest or other additions to such funds. The receiver is instructed to continue the disbursement of the funds in his custody according to the instructions and orders heretofore given, and otherwise to prepare for closing up the receivership during the present term of this court. 582 OCTOBER TERM, 1924. Decisions Per Curiam, Etc. 267 U.S. Final compensation of receiver and his counsel fixed, and payment authorized as expenses of the receivership. The above orders were announced by Mr. Justice Van Devanter. No. 12, Original. State of New Mexico v. State of Colorado. In Equity. Motion for modification of decree submitted March 2, 1925. March 9, 1925, petition for modification of opinion in this cause denied. Messrs. F. W. Clancy, 0. A. Larrazolo and Jay Turley for complainant. Messrs. Wm. L. Boatright, Victor E. Keyes, Delph E. Carpenter, Oliver Dean and Chas. Roach, for defendant. No. —, Original. Ex Parte In the matter of Nicholas J. Curtis. March 9, 1925, motion for leave to file petition for mandate herein denied. Nicholas J. Curtis, pro se. No. 705. Axel W. Hallenborg v. Green Consolidated Copper Company et al. Error to the Supreme Court of the State of New York. Motion to dismiss submitted March 2, 1925. Decided March 9, 1925. Per Curiam. Dismissed for the want of jurisdiction upon the authority of section 237 of the Judicial Code, as amended by the act of September 6, 1916, c. 448, sec. 2, 39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5-6. Mr. Samuel Brennan, with whom Mr. Joseph B. Cotton and Mr. Roy F. Wrigley were on the brief, for defendants in error in support of- the motion to dismiss. Mr. Edward L. Blackman for plaintiff in error in opposition to the motion. No. 309. Frank Durand et al. v. First State Bank of Philipsburg. Error to the Supreme Court of the 267 U. S. OCTOBER TERM, 1924. Decisions Per Curiam, Etc. 583 State of Montana. Submitted March 2, 1925. Decided March 9, 1925. Per Curiam. Dismissed for want of jurisdiction upon the authority of section 237 of the Judicial Code, as amended by the act of September 6, 1916, c. 448, sec. 2, 39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5—6. Mr. H. L. Maury for plaintiffs in error. Mr. R. E. McHugh and Mr. Milton S. Gunn for defendant in error. No. 364. North Pacific Steamship Company v. William T. Soley. Error to the Supreme Court of the State of California. Submitted March 2, 1925. Decided March 9, 1925. Per Curiam. Dismissed for want of jurisdiction upon the authority of section 237 of the Judicial Code, as amended by the act of September 6, 1916, c. 448, sec. 2,39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5-6. Mr. Ernest Clewe for plaintiff in error. Mr. Henry Heidelberg and Mr. Warren H. Pillsbury for defendant in error. No. —, Original. Ex parte: In the Matter of A. A. Sanders. March 9, 1925. Motion for leave to file a petition for a writ of habeas corpus herein denied. A. A. Sanders, pro se. No. 3, Original. State of New Mexico v. State of Texas. March 10, 1925. Order. It is ordered that the order heretofore made in this case, dated December 4, 1924, appointing Charles Warren, Esq., as special master, be amended by adding the following: “ The master may in his discretion receive a brief of an amicus curiae whom the court has already permitted to file a brief in this cause.” 584 OCTOBER TERM, 1924. Decisions Per Curiam, Etc. 267 U.S. No. 248. Oluf O. Gilseth v. A. G. Risty et al. Error to the Circuit Court of Minnehaha County, South Dakota. Motion to dismiss submitted March 9, 1925. Decided March 16, 1925. Per Curiam. Dismissed for want of jurisdiction upon the authority of (1) section 237 of the Judicial Code, as amended by the act of September 6, 1916, c. 448, sec. 2, 39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5-6; (2) Champion Lumber Co. v. Fisher, 227 U. S. 445, 450, 451; Muse v. Arlington Hotel Co., 168 U. S. 430, 435; United States v. Lynch, 137 U. S. 280, 285. Mr. William G. Porter for defendants in error in support of the motion to dismiss. Mr. C. 0. Bailey in opposition to the motion to dismiss. No. 238. A. Brambini et al. v. United States et al. ; and No. 259. A. Brambini et al. v. Superior Court of the State of California, etc., et al. Error to the Supreme Court of the State of California. Argued March 9, 1925. Decided March 16, 1925. Per Curiam. Dismissed for want of jurisdiction upon the authority of section 237 of the Judicial Code, as amended by the act of September 6, 1916, c. 448, sec. 2, 39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5-6. Mr. Robert Ash, with whom Mr. R. P. Henshall was on the brief, for plaintiffs in error. Messrs. W. B. Wheeler, Edward B. Dunford and U. S. Webb, were on the brief for defendants in error. No. 281. County of Tuolumne et al. v. Railroad Commission of the State of California et al. Error to the Supreme Court of the State of California. Argued March 9, 10,1925. Decided March 16,1925. Per Curiam. Dismissed for want of jurisdiction upon the authority of (1) section 237 of the Judicial Code, as amended by the OCTOBER TERM, 1924. 585 267 U. S. Decisions Per Curiam, Etc. act of September 6, 1916, c. 448, sec. 2, 39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5-6; (2) Schuyler National Bank v. Bollong, 150 U. S. 85, 88; Erie R. R. Co. v. Purdy, 185 U. S. 148, 154; Louisville & Nashville R. R. Co. v. Woodjord, 234 U. S. 46, 51. Mr. William Grant, for plaintiffs in error. Mr. A. P. Cutten and Mr. Carl I. Wheat, with whom Mr. Hugh Gordon and Mr. Wm. B. Bosley were on the brief, for defendants in error. No. 321. E. E. McCalla Company et al. v. People of the State of California. Error to the District Court of Appeal, Second Appellate District, of the State of California. Argued March 10, 1925. Decided March 16, 1925. Per Curiam. Dismissed for want of jurisdiction upon the authority of section 237 of the Judicial Code, as amended by the act of September 6, 1916, c. 448, sec. 2, 39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5-6. Mr. F. L. Guerena, with whom Mr. U. S. Webb was on the brief, for defendant in error. Mr. Samuel Herrick for plaintiff in error, submitted. No. 356. Cattina Sala v. A. Crane et al. Error to the Supreme Court of the State of Idaho. Motion to dismiss submitted March 10, 1925. Decided March 16, 1925. Per Curiam. Dismissed for want of jurisdiction upon the authority of section 237 of the Judicial Code, as amended by the act of September 6, 1916, c. 448, sec. 2, 39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5-6. Mr. John P. Gran for defendants in error, in support of the motion to dismiss. Messrs. C. C. Moore, Cyrus Drain and Dale D. Drain for plaintiff in error, in opposition to the motion to dismiss. No. 196. Bacon & Matheson Forge Company et al. v. United States. Appeal from the Circuit Court of 586 OCTOBER TERM, 1924. Decisions Per Curiam, Etc. 267 U. S. Appeals for the Ninth Circuit. Argued March 9, 1925. Decided March 16, 1925. Per Curiam. Judgment affirmed upon the authority of Hill v. United States, 149 U. S. 593, 598; Tempel v. United States, 248 U. S. 121, 130; Horstman Co. n. United States, 257 U. S. 138, 146; Klebe v. United States, 263 U. S. 188, 191; Pearson n. United States, ante, p. 000. Mr. Alfred A. Wheat, Special Assistant to the Attorney General, with whom Solicitor General Beck and Mr. Randolph S. Collins were on the brief, for the United States. Mr. William H. Graham and Mr. James Kieper for appellants, submitted. No. 48. Federal Trade Commission v. Hammond, Snyder & Company; No. 49. Federal Trade Commission v. Baltimore Grain Company; and No. 50. Federal Trade Commission v. H. C. Jones Company, Inc. Error to the District Court of the United States for the District of Maryland. Argued March 12, 1925. Decided March 16, 1925. Per Curiam. Judgments affirmed upon the authority of Federal Trade Commission v. American Tobacco Co., 264 U. S. 298. Mr. James A. Fowler, with whom Solicitor General Beck and Wm. H. Fuller were on the brief, for plaintiff in error. Mr. R. E. Lee Marshall for defendant in error. . No. 650. Hiawassee River Power Company v. Carolina Tennessee Power Company. Error to the Supreme Court of the State of North Carolina. Motion to dismiss or affirm submitted March 16, 1925. Decided March 23, 1925. Dismissed for want of jurisdiction upon the authority of (1) section 237 of the Judicial Code, as amended by the act of September 6, 1916, c. 448, sec. 2, 39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 267 U. S. OCTOBER TERM, 1924. Decisions Per Curiam, Etc. 587 U. S. 1, 5-6; (2) Farrell n. 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. J. C. Martin for defendant in error in support of the motion to dismiss or affirm. Messrs J. Crawford Biggs, John H. Frantz and R. M. McConnell for plaintiff in error in opposition to the motion. No. 269. Missouri Pacific Railroad Company v. Walnut Ridge-Alicia Road Improvement District. Error to the Supreme Court of the State of Arkansas. Motion to dismiss or affirm submitted March 16, 1925. Decided March 23, 1925. Judgment affirmed upon the authority of Missouri Pacific R. R. Co. v. Western Crawford Road Improvement District, 266 U. S. 187. Messrs. G. B. Rose, D. H. Cantrell, J. F. Loughborough and A. W. Dobyns for defendant in error in support of the motion to dismiss or affirm. Messrs. Thomas B. Pryor, Edward J. White and Harry L. Ponder for plaintiff in error in opposition to the motion. No. 767. United States v. Board of County Commissioners of Osage County, Oklahoma, et al. Appeal from the Circuit Court of Appeals for the Eighth Circuit. Argued March 18, 1925. Decided April 13, 1925. Per Curiam. Decree affirmed, upon the authority of Wright-Blodgett Co. v. United States, 236 U. S. 397, 402; Bodkin v. Edwards, 255 U. S. 221, 223; Brewer Oil Co. v. United States, 260 U. S. 77, 86. Mr. S. W. Williams, Special Assistant to the Attorney General, with whom Solicitor General Beck and Assistant Attorney Wells were on the brief, for the United States. Mr. Preston A. Shinn for appellee. 588 OCTOBER TERM, 1924. Decisions Granting Certiorari. 267 U.S. PETITIONS FOR CERTIORARI GRANTED, FROM JANUARY 13, 1925, TO AND INCLUDING APRIL 13, 1925. No. 771. James C. Davis, Agent, etc., v. Abraham Weiss, Administrator, etc. January 26, 1925. Petition for a writ of certiorari to the Municipal Court of the City of Boston, State of Massachusetts, granted. Mr. Arthur W. Blackman for petitioner. Mr. Benjamin Rabalsky for respondent. No. 663. Chesapeake & Ohio Railway Company v. A. F. Thompson Manufacturing Company. March 2, 1925. Petition for a writ of certiorari to the Supreme Court of Appeals of the State of West Virginia granted. Mr. C. N. Davis and Mr. C. W. Strickling for petitioner. Mr. Henry Simms and Mr. Lewis A. Staker for respondent. Nos. 786 and 787. James C. Davis, Federal Agent, etc., v. E. H. Pringle, Trustee. March 2, 1925. Petition for writs of certiorari to the Circuit Court of Appeals for the Fourth Circuit granted. Mr. A. A. McLaughlin for petitioner. Mr. Nath. B. Barnivell and Mr. F. H. Horlbeck for respondent. No. 720. Harold Taylor, Trustee under the Will of Mary E. Erskine, Deceased, et al., v. Harry W. Voss, Trustee. March 2, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Mr. Harold Taylor for petitioners. Mr. Henry B. Walker for respondent. No. 858. Joseph P. Margolin v. United States. March 2, 1925. Petition for a writ of certiorari to the OCTOBER TERM, 1924. 589 267 U. S. Decisions Granting Certiorari. Circuit Court of Appeals for the Second Circuit granted. Mr. Benjamin S. Kirsh and Miss Susan Brandeis for petitioner. The Attorney General for the United States. No. 844. Pacific American Fisheries v. Territory of Alaska. March 9, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Mr. E. S. McCord, Mr. Warren Gregory and Mr. R. E. Robertson for petitioner. Mr. John Rust-gard for respondent. No. 864. Oscar Thornton et al. v. United States. March 9, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit granted. Mr. E. K. Wilcox and Mr. John W. Bennett for petitioners. The Attorney General for the United States. No. 872. Panama Railroad Company v. Agapito Vasquez, as Administrator, etc. March 9, 1925. Petition for a writ of certiorari to the Supreme Court of the State of New York granted. Mr. Richard Reid Rogers for petitioner. Mr. Frederick R. Grover, Mr. Cletus Keating and Mr. Vernon S. Jones for respondent. No. 876. St. Louis-San Francisco Railway Company v. Odell Mills, as Administratrix of the Estate of Ira S. Mills, Deceased. March 9, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit granted. Mr. Forney Johnston for petitioner. No appearance for respondent. No. 891. Chicago, Milwaukee & St. Paul Railway Company v. Edith F. Coogan, Special Administratrix, 590 OCTOBER TERM, 1924. Decisions Granting Certiorari. 267 U.S. etc. March 16, 1925. Petition for a writ of certiorari to the Supreme Court of the State of Minnesota granted. Mr. F. W. Root and Mr. O. W. Dynes for petitioner. Mr. Lyle Pettijohn for respondent. No. 922. Hartford Accident & Indemnity Company of Hartford v. Southern Pacific Company et al. March 16, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit granted. Mr. E. C. Brandenburg for petitioner. No appearance for respondents. No. 931. Henry P. Keith, Late Collector, etc., v. Emma B. Johnson, as Administratrix, etc. March 23, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals, for the Second Circuit granted. Solicitor General Beck tor petitioner. Mr. Sidney V. Lowell for respondent. No. 960. United States v. James Daugherty. April 13, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit granted. Solicitor General Beck, Assistant Attorney General Donovan and Mr. H. S. Ridgely for the United States. Mr. John Spalding Flannery for respondent. No. 966. Chesapeake & Ohio Railway Company v. Annie Nixon, administratrix. April 13, 1925. Petition for a writ of certiorari herein to the Supreme Court of Appeals of the State of Virginia granted. Mr. Randolph Harrison for petitioner. No appearance for respondent. 267 U.S. OCTOBER TERM, 1924. Decisions Denying Certiorari. 591 No. 972. Jose Alejandrino v. Manuel L. Quezon et al. April 13, 1925. Petition for a writ of certiorarLto the Supreme Court of the Philippine Islands granted. Mr. Claro M. Recto for petitioner. Mr. Pablo G. Corinsta and Mr. Guillermo B. Guervara for respondents. No. 993. Charles Hammer v. United States. April 13, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Mr. Robert H. Elder for petitioner. No appearance for respondent. No. 897. James C. Davis, Director General, etc., v. Michigan Trust Company, Receiver, etc. April 13, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit granted. Mr. A. A. McLaughlin for appellant. Mr. Stuart E. Knappen for appellee. No. 898. Atchison, Topeka & Santa Fe Railway Company v. United States. April 13, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Mr. Homer W. Davis and Mr. John G. Drennan for petitioner. Solicitor General Beck for the United States. PETITIONS FOR CERTIORARI DENIED OR DISMISSED, FROM JANUARY 13, 1925, TO AND INCLUDING APRIL 13, 1925. No. 778. Standard Oil Company v. United States et al. January 19, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit 592 OCTOBER TERM, 1924. Decisions Denying Certiorari. 267 U.S. denied. Mr. George W. P. Whip for petitioner. Mr. Solicitor General Beck, Mr. J. Frank Staley Special Assistant to the Attorney General, Mr. Arthur M. Boal and Mr. Frederick R. Conway for respondents. Nos. 792 to 799. Sagamore Coal Company et al. v. The Mountain Water Supply Company and others. January 19, 1925. Petition for writs of certiorari to the Supreme Court of the State of Pennsylvania denied. Mr. Edwin W. Smith, Mr. E. C. Higbee and Mr. William M. Robinson for petitioners. Mr. George W. Woodruff, Mr. George E. Alter and Mr. James S. Moorhead for respondents. No. 809. Henry S. McPherson, Trustee v. Massachusetts Trust Company. January 19, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. Joseph B. Jacobs for petitioner. No appearance for respondent. No..830. Banco di Roma, plaintiff in error, v. Philippine National Bank. January 19, 1925. Petition for a writ of certiorari herein denied. Mr. Carroll G. Walter, for plaintiff in error, in support of the petition. Mr. John T. Loughran, for defendant in error, in opposition to the petition. No. 777. Chippewa Springs Corporation v. Morand Brothers, Inc. January 26, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. A. C. Paul and Mr. E. S. Rogers for petitioner. Mr. George A. Chritton for respondent. OCTOBER TERM, 1924. 593 267 U. S. Decisions Denying Certiorari. No. 811. E. N. Moore et al. v. United States. January 26, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Robert Ash for petitioners. The Attorney General for the United States. No. 812. Glen C. Tobias v. United States. January 26, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Walter W. Stevens for petitioner. The Attorney General for the United States. No. 813. Martin J. Cullen et al. v. United States. January 26, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Harry A. Chamberlin and Mr. Thomas P. White for petitioners. The Attorney General for the United States. No. 814. Thomas V. King v. United States. January 26, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Harry A. Chamberlin and Mr. Thomas P. White for petitioner. The Attorney General for the United States. No. 820. David Crowther v. Winford P. Larson. January 26, 1925. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia denied. Mr. Frank A. Whiteley for petitioner. No appearance for respondent. No. 821. David Crowther v. Winford P. Larson. January 26, 1925. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia denied. 42684°—25——38 594 OCTOBER TERM, 1924. Decisions Denying Certiorari. 267 U. S. Mr. Frank A. Whiteley for petitioner. No appearance for respondent. No. 823. Walbridge-Aldinger Company v. A. J. Rudd et al. January 26, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Charles West and Mr. Everett Petry for petitioner. Mr. I. L. Underwood, Mr. William F. Tucker and Mr. Huletle F. Aby for respondents. No. 835. Central Leather Company v. Steamship Goyaz, Her Engines, etc., et al. January 26, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. D. Roger Englar and Mr. Oscar R. Houston for petitioner. Mr. William A. Purrington and Mr. Frank J. McConnell for respondents. No. 836. Schmoll Fils & Company v. Steamship Goyaz, Her Engines, etc., et al. January 26, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. D. Roger Englar and Mr. Oscar R. Houston for petitioner. Mr. William A. Purrington and Mr. Frank J. McConnell for respondents. No. 801. Murphy Wall Bed Company et al. v. Rip Van Winkle Wall Bed Company. February 2, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. William K. White for petitioners. Mr. A. W. Boyken for respondent. No. 817. William M. Hardie Company v. Arthur H. Lamborn et al. February 2, 1925. Petition for a writ 267 U. S. OCTOBER TERM, 1924. Decisions Denying Certiorari. 595 of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Samuel Williston and Mr. H. A. Hauxhurst for petitioner. Mr. Louis 0. Van Doren for respondents. No. 827. Charles V. Duffy, Former Collector, etc., v. John 0. H. Pitney et al., Executors, etc. February 2, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Solicitor General Beck for petitioner. Mr. Corwin Howell for respondents. No. 828. Frank C. Ferguson, Collector, etc., v. John 0. H. Pitney et al.. Executors, etc. February 2, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Solicitor General Beck for petitioner. Mr. Corwin Howell for respondents. No. 842. T. A. Evans v. United States. February 2, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. E. W. Bradford for petitioner. The Attorney General for the United States. No. 846. Harry Dodd, Trustee in bankruptcy, etc., v. Eugenia S. Westmoreland. February 2, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Walter S. Dillon for petitioner. Mr. Robert C. Alston for respondent. No. 850. Leslie Waldeck et al. v. United States. February 2, 1925. Petition for a writ of certiorari to the 596 OCTOBER TERM, 1924. Decisions Denying Certiorari. 267 U. S. Circuit Court of Appeals for the Seventh Circuit denied. Mr. Ronald C. Oldham for petitioners. The Attorney General for the United States. No. 863. Mary Kuras, Administratrix, etc., v. Michigan Central Railroad Company. February 2, 1925. Petition for a writ of certiorari to the Court of Appeals of Lucas County, State of Ohio, denied. Mr. Frank S. Monnett for petitioner. No appearance for respondent. No. 226. Sallie Canard v. R. E. Snell, Jr., et al. Error to the Supreme Court of the State of Oklahoma. March 2, 1925. Petition for writ of certiorari herein denied. Mr. Lewis C. Lawson for plaintiff in error. Mr. Joseph C. Stone for defendant in error. See ante, p. 578. No. 780. Jacques Rousso v. Reuben E. Barber et al. March 2, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Joshua R. H. Potts and Mr. George B. Parkinson for petitioner. Mr. Moseley Arthur Keller for respondent. No. 824. Oliver American Trading Company, Inc., v. Government of the United States of Mexico et al. March 2, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Robert F. Greacen and Mr. Alfred Hayes for petitioner. Mr. Jerome S. Hess and Mr. Harold B. Elgar for respondents. No. 831. William J. Read v. United States. March 2, 1925, Petition for a writ of certiorari to the Court of 267 U.S. OCTOBER TERM, 1924. Decisions Denying Certiorari. 597 Appeals of the District of Columbia denied. Mr. Harold Harper and Mr. Eugene Underwood for petitioner. The Attorney General for the United States. No. 843. Clyde Hunter v. United States. March 2, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Clair McTuman, William R. Higgins, Charles M. McCabe and Merrill Moores, for petitioner. Solicitor General Beck and Assistant Attorney General Willebrandt for the United States. No. 845. Robeson Process Company v. Jaöob S. Robeson et al. March 2, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. A. M. Houghton, Mr. Julius M. Mayer and Mr. F. P. Warfield for petitioner. Mr. Clair W. Fairbank and Mr. Irving M. Obright for respondents. No. 860. Mary H. Selvage v. Brockenbrough Lamb, Trustee. March 2, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Robert W. Talley for petitioner. Mr. James E. Cannon for respondent. No. 861. United States v. Maurice P. Davidson, Trustee, etc. March 2, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Solicitor General Beck, Mr. Chauncy G. Parker, Mr. E. M. Allison, Jr., and Mr. Henry M. Ward, for the United States. Messrs. John M. Woolsey, John S. Sheppard, Delbert M. Tibbetts and Alvin C. Cass, for respondent. 598 OCTOBER TERM, 1924. Decisions Denying Certiorari. 267 U. S. No. 837. John Mullen et al. v. United States. March 9, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. C. B. Tinkham for petitioners. The Attorney General for the United States. No. 855. William A. Greene, as Trustee in Bankruptcy, etc., v. J. L. Booth, as Trustee in Bankruptcy, etc. March 9, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Walter B. Allen for petitioner. Mr. Challon B. Ellis for respondent. No. 862. J. W. Patt v. United States. March 9,1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Bryan H. Tivnen and Mr. Michael M. Doyle for petitioner. The Attorney General for the United States. No. 868. Chicago & Alton Railroad Company v. Mary Ambrose, Administratrix, etc. March 9, 1925. Petition for a writ of certiorari to the Kansas City Court of Appeals of the State of Missouri denied. Mr. Charles M. Miller and Mr. Silas H. Strawn for petitioner. Mr. Mont T. Prewitt for respondent. No. 869. Compania General de Tabacos de Pilipinas v. The Insular Collector of Customs. March 9, 1925. Petition for a writ of certiorari to the Supreme Court of the Philippine Islands denied. Mr. Harry W. VanDyke for petitioner. Mr. A. W. Brown for respondent. OCTOBER TERM, 1924. 599 267 U. S. Decisions Denying Certiorari. No. 877. Howard S. Mellot v. Charles R. Mabee et al., Trustees in Bankruptcy, etc. March 9, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Donald F. Melhorn for petitioner. Mr. Allen J. Seney for respondent. No. 878. Clyde A. Davis, Trustee in Bankruptcy, etc. v. Charles R. Mabee et al. March 9, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Donald F. Melhorn for petitioner. Mr. Allen J. Seney for respondent. No. 880. Terrell M. Ragan, Trustee v. Allan Forbes, Trustee. March 9, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. Jacob J. Kaplan for petitioner. Mr. William D. Turner for respondent. No. 882. France and Canada Steamship Corporation, as Owner of the Schooner Oakley C. Curtis, etc. v. Midland Linseed Products Company. March 9, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Carroll G. Walter and Mr. Chas. D. Francis for petitioner. Mr. Herman S. Herturg for respondent. No. 883. George L. Moore et al. v. United States. March 9, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Bryan H. Tivnen and Mr. Michael M. Doyle for petitioners. The Attorney General for the United States. 600 OCTOBER TERM., 1924. Decisions Denying Certiorari. 267 U. S. No. 884. Traylor Engineering and Manufacturing Company v. Worthington Pump and Machinery Cor-poration. March 9, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Messrs. Frank B. Fox, Henry N. Paul and George Wharton Pepper for petitioner. Mr. James Rice and Mr. Chas. H. Hawson for respondent. No. 886. Louis Brownstein et al. v. United States. March 9, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Archibald Palmer for petitioner. The Attorney General for the United States. No. 889. Alden W. Bohm v. Chicago, Milwaukee & St. Paul Railway Company. March 9, 1925. Petition for a writ of certiorari to the Supreme Court of the State of Minnesota denied. Mr. F. M. Miner for petitioner. Mr. F. W. Root and Mr. 0. W. Dynes for respondent. No. 890. Christina M. Hoeffner, as Administratrix, etc. v. National Steamship Company. March 9, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. C. S. Mauk for petitioner. Mr. Joe Crider, Jr. and Mr. J. Hampton Hodge for respondent. No. 895. C. W. Johnson, Trustee in Bankruptcy of Johnson & Company, Bankrupts v. Sallie B. Duncan. March 9, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. OCTOBER TERM, 1924. 601 267 U. S. Decisions Denying Certiorari. Mr. Emile Steinfeld for petitioner. Mr. James Garnett for respondent. No. 900. Samuel Reich, Trustee in Bankruptcy, etc. v. Kenneth W. McNeil. March 9, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. William H. Comley for petitioner. Mr. Edward M. Grout for respondent. No. 396. John C. Ross v. State of South Dakota. On writ of error to the Supreme Court of South Dakota. March 16, 1925. Petition for a writ of certiorari herein denied. Mr. U. S. G. Cherry and Mr. Holton Davenport for plaintiff in error in support of the petition. Mr. Byron S. Payne for defandant in error in opposition to the petition. No. 834. Joseph L. Lackner, Administrator v. Merritt Starr, Surviving Partner of the Firm of Miller & Starr. March 16, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Charles H. Aldrich, Charles S. Cutting and Donald F. McPherson for petitioner. Messrs. Thornton M. Pratt, Fletcher Dobyns, Albert L. Hopkins and John S. Miller, Jr., for respondent. No. 892. Pere Marquette Railway Company v. Loveland & Hinyan et al. March 16, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. John C. Shields for petitioner. Mr. Clare J. Hall and Mr. Joseph R. Gillard for respondents. No. 904. P. W. Ewing v. E. B. Shauver et al. March 16, 1925. Petition for a writ of certiorari to the Circuit 602 OCTOBER TERM, 1924. Decisions Denying Certiorari. 267 U. S. Court of Appeals for the Eighth Circuit denied. Mr. John E. Semmes, Jr., for petitioner. Mr. Henry William Hart for respondents. No. 906. The Butterick Company et al. v. The Federal Trade Commission. March 16, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Herbert Noble, Scott Scammell, Julius M. Mayer and Hartwell P. Heath for petitioners. Solicitor General Beck and Mr. William H. Fuller for respondent. No. 917. Edward Smale, Jr., et al. v. United States. March 16, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Everett Jennings for petitioners. The Attorney General for the United States. No. 941. Morris M. Becher v. United States. March 16, 1925. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Charles H. Tuttle and Mr. Frank Hogan for petitioner. The Attorney General for the United States. No. 942. Morray E. Birnbaum v. United States. March 16, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Otto S. Bowling for petitioner. The Attorney General for the United States. No. 945. Tan Pho et al. v. Faustino Lichauco, as Guardian, etc. March 16, 1925. Petition for a writ of 267 U. S. OCTOBER TERM, 1924. Decisions Denying Certiorari. 603 certiorari to the Supreme Court of the Philippine Islands denied. Mr. Frederick C. Fisher and Mr. Clyde A. DeWitt for petitioners. No appearance for respondent. No. 326. Thomas F. Donnelly v. Commonwealth of Massachusetts. On petition for writ of certiorari to Superior Court of Middlesex County, State of Massachusetts. March 20, 1925. Dismissed for want of prosecution. Mr. Thomas F. Donnelly for petitioner. No appearance for respondent. No. 928. William Stevens v. Atchison, Topeka & Santa Fe Railway Company. March 23, 1925. Petition for a writ of certiorari to the Supreme Court of the State of New York denied. Mr. George S. Brengle and Mr. D. Roger Englar for petitioner. Mr. Gardiner Lathrop, Mr. Homer W. Davis and Mr. S. G. Bristow for respondent. No. 912. Carlos M. Ramirez Lopez v. American Railroad Company of Porto Rico. March 23, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. José A. Poventud for petitioner. Mr. Francis H. Dexter for respondent. No. 939. United States v. Hamilton Michelson & Company et al. March 23, 1925. Petition for a writ of certiorari to the Court of Customs Appeals denied. Solicitor General Beck and Assistant Attorney General Hoppin for the United States. No appearance for respondents. No. 943. United States v. Middleton & Company, etc., et al. March 23, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Cir- 604 OCTOBER TERM, 1924. Decisions Denying Certiorari. 267 U. S. cuit denied. Solicitor General Beck and Mr. J. Frank Staley, Special Assistant to the Attorney General, for the United States. Messrs. E. Willoughby Middleton, Alfred Huger and Julian Mitchell for respondents. No. 948. Bauer Cooperage Company v. Edgar Stark, Executor, etc.; No. 949. Bauer Cooperage Company v. Union Savings Bank & Trust Company; No. 950. Bauer Cooperage Company v. Lawrence Maxwell Company; and No. 951. Bauer Cooperage Company v. Edgar Stark, Executor, etc. March 23, 1925. Petition for writs of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Murray Seasongood for petitioners. No appearance for respondents. No. 953. Nick Cholskos v. United States. March 23, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Francis B. Kavanaugh for petitioner. No appearance for respondent. No. 959. Marcus Garvey v. United States. March 23, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. George Gordon Battle for petitioner. Solicitor General Beck and Assistant Attorney General Donovan for the United States. No. 696. John C. Parker v. State of Texas. April 13, 1925. Petition for a writ of certiorari herein to the Court of Criminal Appeals of the State of Texas dismissed 267 U. S. OCTOBER TERM, 1924. Decisions Denying Certiorari. 605 for failure to submit the same within the time prescribed, in rule 37, paragraph 4. Mr. Emil T. Simmang for petitioner. No appearance for respondent. No. 854. Minnie M. Williams, etc., Executrix, etc., et al., v. Freeman B. Christopher. April 13, 1925. Petition for a writ of certiorari to the Court of Appeals of Franklin County, State of Ohio, denied. Mr. David F. Pugh and Mr. L. R. Pugh for petitioner. Mr. James N. Linton for respondent. No. 871. Ella Foley, Administratrix v. New York, Ontario & Western Railway Company. April 13, 1925. Petition for a writ of certiorari to the Court of Errors and Appeals of the State of New Jersey denied. Mr. John W. Townsend for petitioner. Mr. John A. Hartpence and Mr. Albert C. Wall for respondent. / ____________________ No. 955. Patrick J. Collins et al., etc. v. Anna C. Gibson. April 13, 1925. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia denied. Mr. George E. Sullivan for petitioner. No appearance for respondent. No. 956. Fenner & Beane v. T. G. Holt. April 13, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Burt W. Henry, John E. Hall, Warren Grice, Charles J. Bloch and L. C. Going for petitioner. No appearance for respondent. No. 957. Warren W. Willmering v. United States. April 13, 1925. Petition for a writ of certiorari to the 606 OCTOBER TERM, 1924. Decisions Denying Certiorari. 267 U.S. Circuit Court of Appeals for the Fifth Circuit denied. Mr. J. TF. Morrow for petitioner. The Attorney General for the United States. No. 963. Sven Nyquist v. United States. April 13, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Edward J. McCrossin for petitioner. The Attorney General for the United States. No. 973. Michael J. Derby, Owner, etc. v. Steam Tug Panther, Her Engines, etc., New York Marine Company, Claimant. April 13, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Pierre M. Brown for petitioner. Mr. James K. Symmers for respondent. No. 996. Camden Fire Insurance Association v. United States Manufacturers Export Association. April 13, 1925. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Dix W. Noel and Mr. Arthur W. Clement for petitioner. Mr. John A. McManus for respondent. No. 840. James D. Barton v. Leyte Asphalt & Mineral Oil Company, Limited. April 13, 1925. Petition for a writ of certiorari to the Supreme Court of the Philippine Islands denied. Mr. Augustus T. Seymour for petitioner. Mr. John Walsh for respondent. No. 965. F. G. Buffington v. State of Georgia. April 13, 1925. Petition for a writ of certiorari to the OCTOBER TERM, 1924. 607 267 U. S. Cases Disposed of Without Consideration by the Court. Court of Appeals of the State of Georgia denied. Mr. M. B. Eubank for petitioner. No appearance for respondent. CASES DISPOSED OF WITHOUT CONSIDERATION BY THE COURT, FROM JANUARY 13, 1925, TO AND INCLUDING APRIL 13, 1925. No. 173. Walter Carr v. A. Alexsen, Master, et al. Appeal from the District Court of the United States for the Eastern District of Virginia. January 14, 1925. Dismissed with costs, on motion of Mr. J. C. Matthews. Mr. Harry K. Wolcott and Mr. Daniel Coleman also appeared for the appellant. No appearance for appellee. No. 131. St. Johns Electric Company v. City of St. Augustine, etc., et al. Appeal from the District Court of the United States for the Southern District of Florida. January 19, 1925. Dismissed, per stipulation. Mr. George C. Bedell for appellant. No appearance for appellee. No. 167. St. Johns Electric Company v. City of St. Augustine et al. Appeal from the District Court of the United States for the Southern District of Florida. January 19, 1925. Dismissed, per stipulation. Mr. George C. Bedell for appellant. Mr. P. H. Odom for appellee. No. 211. R. V. Mullen v. J. P. Hurley et al. Appeal from the Circuit Court of Appeals for the Eighth Circuit. January 20, 1925. Dismissed with costs, pursuant to the 16th Rule, on motion of Mr. H. L. Johnson for appellees. Mr. W. A. Chase for appellant. No. 340. United States ex rel. Hyman Patton, etc. v. Tod, as Commissioner of Immigration. January 26, 608 OCTOBER TERM, 1924. Cases Disposed of Without Consideration by the Court. 267 U. S. 1925. Dismissed, per stipulation, on motion of Solicitor General Beck for respondent. Mr. A. S. Gilbert for petitioner. No. 253. Seaboard Air Line Railway Company v. 0. T. Belshe. Error to the Supreme Court of the State of North Carolina. January 26, 1925. Dismissed with costs, on motion of Mr. Murray Allen for the plaintiff in error. Mr. Clyde A. Douglass, Mr. William C. Douglass and Mr. Robert N. Simms for defendant in error. No. 263. Burnard Whitten v. State of Florida. Error to the Supreme Court of the State of Florida. January 28, 1925. Dismissed with costs, on motion of Mr. W. D. Bell for the plaintiff in error. No appearance for defendant in error. No. 244. United States v. DeWitt T. Law. Error to the District Court of the United States for the District of Montana. February 2, 1925. Dismissed, on motion of Solicitor General Beck for the United States. Mr. DeWitt T. Law, pro se. No. 330. United States v. Herbert H. McGovern. Error to the District Court of the United States for the District of Montana. March 2, 1925. Dismissed, on motion of Solicitor General Beck for the United States. No appearance for defendant in error. No. 245. A. R. McCullough et al., Copartners, etc., v. Olaf Anton Janson. Error to the Circuit Court of Appeals for the Ninth Circuit. March 2, 1925. Dis- OCTOBER TERM, 1924. 609 267 U. S. Cases Disposed of Without Consideration by the Court. missed with costs, on motion of Mr. 0. P. Stidger and Mr. J. Hampton Hodge for plaintiffs in error. No appearance for defendant in error. No. 291. L. H. Myers et al. v. Charles H. Anderson et al., Copartners, etc., et al. On writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit. March 2, 1925. Dismissed with costs, per stipulation of counsel. Mr. George C. Bedell and Mr. I. L. Purcell for petitioners. Mr. Giles J. Patterson for respondents. No. 485. Atchison, Topeka & Santa Fe Railway Company v. Richard E. Collins et al., etc. ; and No. 486. Southern Pacific Company v. Richard E. Collins et al., etc. Appeals from the District Court of the United States for the Northern District of California. March 2, 1925. Dismissed, per stipulation. Mr. E. W. Camp and Mr. Gardiner Lathrop for appellant in No. 485. No appearance for appellees in No. 485. Messrs. Max C. Sloss, Henley Clifton Booth and William F. Herrin for appellant in No. 486. No appearance for appellees in No. 486. No. 788. Winchester Cooley v. C. C. Ozment, Receiver. Error to the District Court of the United States for the District of New Mexico. March 2, 1925. Dismissed with costs, on motion of Mr. E. L. Medler for the plaintiff in error. No appearance for defendant in error. No. 789. T. M. Wingo v. C. C. Ozment, Receiver. Error to the District Court of the United States for the District of New Mexico. March 2, 1925. Dismissed with costs, on motion of Mr. E. L. Medler for the plaintiff in error. No appearance for defendant in error. 42684°—25-------39 610 OCTOBER TERM, 1924. Cases Disposed of Without Consideration by the Court. 267 U. S. No. 879. Continental Casualty Company, etc., et al. v. Alfred W. Agee, Administrator, etc. On petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit. March 2, 1925. Dismissed, on motion of Mr. William W. Ray for the petitioners. Messrs. James L. DeVine, James A. Howell and Charles R. Hollingsworth for respondent. No. 888. Patrick J. O’Shaughnessy et al. v. United States. Error to the District Court of the United States for the Southern District of Alabama. March 2, 1925. Writ of error dismissed as to plaintiffs in error Benjamin Cody and Percy H. Kearnes, on motion of Mr. Harry H. Smith for plaintiffs in error. The Attorney General for the United States. No. 924. T. Frank Smith v. Sam L. Gross, U. S. Marshal. On petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit. March 9, 1925. Dismissed, on motion of Messrs. J. M. McCormick, F. M. Etheridge and 5. M. Lepturch for petitioner. No appearance for respondent. No. 925. L. J. Robling v. Sam L. Gross, U. S. Marshal. On petition for Writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit. March 9, 1925. Dismissed, on motion of Messrs. J. M. McCormick, F. M. Etheridge and S. M. Lepturch for petitioner. No appearance for respondent. No. 312. Salt Lake County v. Utah Copper Company. Error to the Circuit Court of Appeals for the Eighth Circuit. March 16, 1925. Dismissed with costs, on motion of Mr. Charles C. Richards for the plaintiff in error. No appearance for defendant in error. OCTOBER TERM, 1924. 611 267 U. S. Cases Disposed of Without Consideration by the Court. No. 357. W. F. Clegg et al., etc., v. City of Spartanburg et al. Error to the Supreme Court of the State of South Carolina. March 16, 1925. Dismissed with costs, on motion of Mr. Sam J. Nicholls for the plaintiffs in error. Mr. Horance L. Bomar for defendant in error. No. 888. Patrick J. O’Shaughnessy et al. v. United States. On writ of error to the United States District Court for the Southern District of Alabama. March 23, 1925. Writ of error dismissed as to plaintiffs in error Harry B. O’Connor, Daniel L. Jemison, Geronimo Perez, and James F. Daves, on motion of Mr. Harry H. Smith for the plaintiffs in error. The Attorney General for the United States. No. 393. United States v. A. E. Bauch et al.; No. 394. United States v. C. F. Waterman et al.; and No. 395. United States v. A. E. Bauch. Error to the District Court of the United States for the Eastern District of Washington. April 13, 1925. Dismissed, on motion of Solicitor General Beck for the United States. No appearance for defendants in error. No. 38. Ivory Novelties Trading Company v. Francois Joseph de Spoturno Coty. On writ of certiorari to the Circuit Court of Appeals for the Second Circuit. April 13, 1925. Dismissed, per stipulation. Mr. Charles H. Tuttle and Mr. William J. Hughes for petitioner. Messrs. F. D. McKenney, Hugo Mock and Asher Blum for respondent. No. 672. Southern Pacific Company v. Chevrolet Motor Company of California. Error to the District 612 OCTOBER TERM, 1924. Cases Disposed of Without Consideration by the Court. 267 U. S. Court of the United States for the Northern District of California. April 13, 1925. Dismissed with costs, on motion of Mr. Henley C. Booth for the plaintiff in error. No appearance for defendant in error. APPENDIX General Orders in Bankruptcy, Promulgated April 13, 1925. It is ordered by the court that General Order in Bankruptcy No. 5, entitled “ Frame of Petition,’’ be amended by adding at the end thereof the following sentence: Petitioners in involuntary proceedings whose claims rest upon assignment or transfer from other persons shall annex to one of the duplicate petitions all instruments of assignment or transfer, and an affidavit setting forth the true consideration paid for the assignment or transfer of such claims and stating that the petitioners are the bona fide holders and legal and beneficial owners thereof, and whether or not they were purchased for the purpose of instituting bankruptcy proceedings. And it is further ordered that the following rules be adopted and established as an additional General Orders in Bankruptcy: XXXIX Representation of Creditors by Receivers or Their Attorneys Neither a receiver nor his attorney shall solicit any proof of debt, power of .attorney, or other authority to act for or represent any creditor for any purpose in connection with the administration of the estate in bankruptcy or the acceptance or rejection of any composition offered by a bankrupt. 613 614 APPENDIX. XL Receivers and Marshals as Custodians A receiver or marshal appointed by the court to take charge of the property of a bankrupt after the filing of a petition shall be deemed to be a mere custodian within the meaning of Section 48 of the Bankruptcy Act, unless his duties and compensation are specifically enlarged by order of the court, upon proper cause shown, either at the time of the appointment or later. XLI Waiver of Right to Share in Composition Deposits Before confirming a composition the judge of the court shall require all creditors and other persons who may have waived their right to share in the distribution of the deposit made by the bankrupt, for claims, fees, or otherwise, to set forth in writing and under oath all agreements with respect thereto with the bankrupt, his attorney, or any other person, and shall also require an affidavit by the bankrupt that he has not directly or indirectly paid or promised any consideration to any attorney, trustee, receiver, creditor, or other person in connection with the composition proceedings, except as set forth in such affidavit or the offer of composition, and that he has no knowledge of any such payment or promise by any other party. XLII Compensation of Attorneys, Receivers, and Trustees 1. Every attorney, receiver, and trustee seeking an allowance of compensation from a bankrupt estate for services rendered shall file with the referee a petition under oath, setting forth a full and detailed statement of such services and the amount claimed therefor, and, in the case of an attorney or receiver, the amount of the APPENDIX. 615 partial allowance, if any, theretofore made. And such petition shall be accompanied by an affidavit of the applicant stating that no agreement has been made, directly or indirectly, and that no understanding exists, for a division of fees between the applicant and the receiver, the trustee, the bankrupt, or the attorney of any of them. In the absence of such petition and affidavit no allowance of compensation shall be made. 2. Such petition shall be heard at a meeting of creditors; and the referee in sending the notice of such meeting prescribed by Section 58 of the Bankruptcy Act, shall state by whom and in what amount the allowance of the compensation is asked. XLIII Fees and Expenses of Attorneys for Petitioning Creditors The court may deny the allowance of any fee to the attorney for petitioning creditors or the reimbursement of his expenses, or both, if it shall appear that thé proceedings were instituted in collusion with the bankrupt or were not instituted in good faith. XLIV Appointment of Attorneys for Receivers or Trustees In any District in which there is a city having at the last Federal census a population of 250,000 or more, no attorney for a receiver or a trustee shall be appointed except upon the order of the court, which shall be granted only upon the petition of the receiver or trustee, stating the name of the counsel whom he wishes to employ, the reasons for his selection, and the necessity for employing counsel at all; and there shall be submitted with this petition an affidavit of the person recommended, showing that he is not employed by or connected with the bankrupt or any person having an interest adverse to the receiver, trustee, or creditors. 616 APPENDIX. XLV Auctioneers, Accountants, and Appraisers No auctioneer or accountant shall be employed by a receiver or trustee except upon an order of the court expressly fixing the amount of the compensation or the rate or measure thereof. The compensation of appraisers shall be provided for in like manner in the order appointing them. • INDEX. ABANDONMENT. See Const. Law, XII, 3. Page. ACCORD AND SATISFACTION. See Claims, 7; Pleading. ACCRETION. See Oklahoma v. Texas..........452 ACQUIESCENCE. See Claims, 12; Lease, 1. ADMIRALTY: 1. Proximate Cause of Loss of Insured Vessel accidentally punk while under control of foreign naval officer. Standard Oil Co. v. U. S..................................................... 76 2. Fraud on Consignee, evidence of held insufficient. Austin Nichols & Co. v. Isla de Panay......................................260 3. Bills of Lading; Trade Usage. Evidence of ship’s captain held insufficient. Id. 4. Id. Damage to Shipment; Harter Act. Ship not liable to consignee by estoppel or otherwise for damage due to weakness of containers known to ship’s agent and master, where bills of lading exempted ship from liability for such weaknesses. Id. 5. Demise, what amounts to and liability of owner under. U. S. v. S. S. Co......................................... 281 6. Suits in Admiralty Act; Venue. Against United States where libelant resides or where vessel found. Nahmeh v. U. S............................*............................. 122 7. Id. Costs and Interest. Against United States. She-wan v. U. S.............................................. 86 AGENCY. See Principal and Agent. ALIENS: 1. Naturalization; Deportation. Alien has not “entered” United States, nor “dwelling” or “found” here, pending temporary suspension of deportation. Kaplan v. Tod.........228 2. limitation, of five years on liability to deportation. Id. 3. Penalty, on S. S. Co. for illegal landing. The Coamo... 220 617 618 INDEX. ANCILLARY JURISDICTION. See Jurisdiction. page. ANTI-TRUST ACT. See Contracts, 8. ASSUMPTION OP RISK. See Employers Liability Act. ATTORNEYS. See Const. Law, XII, 9. BANKRUPTCY. See Const. Law, XII, 7. 1. Partnership Assets, application of. U. S. v. Kaufman.. 409 2. Taxes. Priority of United States. Id. 3. Judgment on Tort, a provable claim. Lewis v. Roberts. 467 BANKS. See Insolvency. Right to set off deposits against debt of depositor. U. S. v. Butterworth-Judson Corp........................387 BENEFICIAL SOCIETIES. See Insurance. BILLS OF EXCEPTIONS. See Procedure, 8. . BILLS OF LADING. See Admiralty, 3, 4. BOUNDARIES: Between States. Actual location of between territories recognized by United States and two States afterwards created, determinative and cannot be impaired by subsequent acts of General Land Office or United States. New Mexico v. Colorado.................................... 30 Id. Decree Fixing. Oklahoma v. Texas................452 BRIDGES. See Waters. CANCELLATION. See Claims, 14; Contracts, 15-18. CARRIERS. See Admiralty, 2, 3, 4; Aliens, 3; Claims, 6, 7, 11-13; Const. Law, IV, 4, 5; Const. Law, XII, 3-6; Employers Liability Act; Federal Control Act; Interstate Commerce Acts; Jurisdiction, VI; Safety Appliance Acts; Railroads. Switching Service, power of state to prevent discontinuance of. Western & Atl. R. R. v. Pub. Service Comm.....493 CHARTER. See Admiralty, 5; Insurance; Railroads. INDEX. 619 CLAIMS. See Lease. Page. 1. Dent Act. Decisions of Secretary of Interior under, not reviewable by mandamus. Work v. Rives................. 175 See Work v. Chestatee Co.................................. 185 2. Id. Requisites under for cause of action in Court of Claims. Merritt v. U. S................................338 3. Tucker Act. Contract must be expressed oi implied in fact, not merely implied in law. Id. 4. Pleading, rules of in Court of Claims. Id. •5. Lever Act; Venue of action for value of requisitioned coal. U. S. v. McNeil & Sons.......................... 302 6. Transportation Act; Venue; Damages. Action for coal seized by Director General of Railroads under orders of Fuel Administrator. Davis v. Coal Co....................... 292 7. Federal Control Act, deficit of operating income under; release of by contract with Director General. St. Louis R. R. n. U.S.............................. I.. 346 See Cairo R. R. v. U. S.....................................350 ■8. Damages for Real Property. Acceptance of compensation tendered under Act Oct. 6, 1917, for land does not preclude claim of additional compensation, under Act and Fifth Amendment, for taking and loss of business. Mitchell v. U. S341 9. Damage to Business, incident to taking property, not recoverable under Act 1917. Id. 10. Implied Contract to Pay. None when taking was under claim of right. Pearson v. U. S........................423 11. Land Grant Rates. Use of government bills of lading and payment at land grant rates, insufficient to support finding that coal was property of United States, when hauled. L. & N. R. R. v. U. S......................... 395 12. Id. Acquiescense. Though entitled to full tariff, receiving and accepting land grant rates binds Railroad by acquiescence. Id. ■Ch. M. & St. P. R. R.y. U. S..........................403 13. Id. Not to be deducted from regular rate in determining right of United States to exemption from switching charge under tariff. L. & N. R. R. v. U. S............ 395 14. Prospective Profits Not Recoverable, upon breach of contract by United States where Government had right to cancel. College Point Boat Co. v. U. S................. 12 620 INDEX. COLORADO. See Boundaries. Page. COMITY. See Const. Law, XI, 6. COMPACTS. See Waters. CONFLICT OF LAWS. See Insurance; Judgments, 3. CONSTITUTIONAL LAW. See Contracts; Criminal Law. I. General. P. 620. II. Judiciary. P. 620. III. State Boundaries. P. 620. IV. Commerce Clause. P. 620. V. Contract Clause. P. 621. VI. Exports. P. 621. VII. Ex Post Facto Laws. P. 621. VIII. Full Faith and Credit Clause. P. 621. IX. Pardons. P. 621. X. Fourth Amendment. P. 621. XI. Fifth Amendment. P. 622. XII. Fourteenth Amendment. P. 622. I. General. 1. Legislative History, bearing on construction of statutes and Constitution. Carroll v. U.S........................... 132’ 2. Practice and Acquiescence, considered in construing the Constitution. Ex p. Grossman................................. 87 3. Unconstitutional Statute, party not estopped from assailing by vain endeavor to comply with it. Buck n. Kuykendall .................................................... 307 II. Judiciary. See Jurisdiction. Independence of Judiciary, consistent with power of President to pardon criminal contempts. Ex p. Grossman........... 87' III. State Boundaries. A boundary location between territories, later States, acquiesced in and acted on, can not be disturbed by subsequent action of the United States or either State. New Mexico v. Colorado.................................................. 30 IV. Commerce Clause. See Interstate Commerce Acts. 1. Contract of Sale, when deemed an interstate commerce transaction. Flanagan v. Coal Co............................ 222 INDEX. 621 CONSTITUTIONAL LAW—Continued. Page. 2. Contract of Sale. State License Law, can not make such contracts invalid. Id. 3. Motor Vehicle Theft Act, punishing receipt, concealment or storing of stolen motor vehicle moving in interstate commerce, constitutional. Brooks v. U. S........................ 432 4. State Highway, use of by common carrier motor vehicles for interstate transportation not subject to regulation by State for controlling competition on ground of public convenience. Buck v. Kuykendall................................. 307 See Bush Co. v. Maloy............................................. 317 5. Id. Whether or not highways federal-aided, immaterial. Id. Id. 6. Alternative Interstate and Intrastate Routes, when shipment governed by federal law. Mo. Pac. R. R. v. Stroud.. 405 V. Contract Clause. Rate Regulation. Rights of purchaser of gas under contract with private corporation not impaired by conversion of corporation to public utility and increase of its rates by state authority. Ft. Smith Spelter Co. v. Clear Creek Oil.. 231 VI. Exports. Tax on Income from sales abroad of goods exported, not tax on exports. Barclay v. Edwards.......................... 442 VII. Ex Post Facto Laws. Liquor Law. State law making possession of intoxicating liquors unlawful, though lawfully acquired before enactment of law, not ex post facto. Samuels v. McCurdy........... 188 VIII. Full Faith and Credit Clause. Corporate Charters. Rights of members against incorporated beneficiary society, determined by law and decisions of State of incorporation, binding on courts of other States. Modern Woodmen v. Mixer..................................... 544 IX. Pardons. Criminal Contempt, pardonable by President. Ex p. Grossman...................................................... 87 X. Fourth Amendment. 1. Searches and Seizures, denounced only when unreasonable. Carroll v. U. S................................... 132 622 INDEX. CONSTITUTIONAL LAW—Continued. page. 2. Searches and Seizures. Distinction between search without warrant of house or other fixed structure and vehicles, such as motor cars. Id. 3. Id. Amendment not violated by search, under Prohibition Act, of passing motor car, believed with reasonable cause to be engaged in illegal transportation of liquor. Id. 4. Id. Evidence, procured by search and seizure,—when admissible in criminal prosecution. Id. 5. Search Warrant. Sufficiency of description of premises and goods. Steele v. U. S. No. 1........................... 499* XI. Fifth Amendment. See Claims, 8. 1. Contempt Proceeding, notice and fair hearing required, when contempt not in open court. Cooke v. U. S...............517 2. Expropriation; Damages. Coal taken for government operation of railroads, must be paid for at market value and not at lower price fixed by Fuel Administrator. Davis v. Coal Co.................................................... 292: 3. Id. Damages, limited to property interests taken. Mitchell v. U. S............................................341. 4. Taxation. Discrimination between tax payers based on classification, allowable when not arbitrary. Barclay v. Edwards.................................................... 442: 5. Foreign Law. Seizure and transfer of stock certificates under, recognized as passing title enforceable against corporation here. Disconto Gessellschajt v. U. S. Steel Corp.. 22; 6. Arrest of person for trial in a district through which he is traveling to stand trial in another, does not violate due process even though it be breach of comity. Morse v. U.S. 801 7. Obscure Statute. Lever Act forbidding “unjust or unreasonable” charges, and agreements to exact “excessive prices,” for necessaries, void under due process clause, both as standard for determining validity of. contract and in criminal prosecution. Small Co. v. Am. Sugar Ref. Co........233 Small Co. v. Lamborn & Co................................... 248- XII. Fourteenth Amendment. See XI, supra. 1. Prohibition Law. Destruction of valuable liquors, under law passed after their acquisition by owner does not deprive him of property without due process of law. Samuels v. McCurdy.................................................... 188: INDEX. 623- CONSTITUTIONAL LAW—Continued. Page. 2. Prohibition Law. Notice. Order for such destruction, due process though made without notice to owner. Id. 3. Street Railway; Abandonment of unremunerative branch— prohibition of not arbitrary. Ft. Smith L. & T. Co. v. Bourland............................................ 330. 4. Switching Service. Power of State to require continuance of though unprofitable or involving loss to carrier. Western & Atl. R. R. v. Pub. Service Comm........... 493; 5. Public Utility Rates. Allowance of estimated organization and other overhead charges in determining reproduction value of plant. Ohio Utilities Co. n. Commission.359 6. Id. Allowance of less than 5% return on value of electric plant, by arbitrary procedure, held denial of due judicial inquiry and deprivation of property without due process. Id. 7. Liability Insurance. State may require that insurance policy issued to indemnify motor vehicle owner against liability to persons injured through negligent operation, shall provide that insolvency or bankruptcy of insured shall not release company from liability and that injured person may maintain action against it. Merchants Co. v. Smart.... 126> 8. Employer and Employee. Statute for compulsory fixing of hours of labor, infringes property rights and liberty of contract. Wolfl Co. v. Kansas Indust. Ct..............552 9. Attorneys Fees, restriction of consistent with right of property and liberty of contract. Yeiser v. Dysart.... 540 CONSTRUCTION. See Contracts; Statutes. CONTEMPT: 1. Criminal Contempt, “ offense against United States ” under Constitution, pardonable by President. Ex p. Grossman................................................... 87 2. Id. No substantial difference between executive power of pardon in our government and King’s prerogative under common law of England. Id. 3. Notice and Fair Hearing. Required when contempt not in open court. Cooke v. U. S.............................517' 4. Substitution of Another Judge, where contempt is personal attack. Id. 624 INDEX. Page. CONTRACTS. See Admiralty, 5; Claims, 2, 10, 11; Const. Law, IV, 1, V, XII, 9; Insurance; Lease; Sales. 1. Offer and Acceptance, freedom from variance. Small Co. v. Am. Sugar Ref. Co................................... 233 2. Mistake of Copyist, corrected by construction. Id. 3. Statutory Standard. Lever Act, forbidding “excessive prices ” for necessaries, invalid under Fifth Amendment as test of validity of contract of sale. Id. Small Co. v. Lamborn & Co........................................ 248 4. Lever Act. Construed as to power of President to fix profit on sugar, and as to prohibition of hoarding. Id., Id. 5. Resale of Goods, after refused by buyer; duty of seller. Id., Id. 6. Vendors Lien. Duty to resell goods commences when vendor takes possession; and reasonable time for reselling begins then to run. Small Co. v. Am. Sugar. Ref. Co..........233 7. Mutuality. See Small Co. v. Lamborn & Co..................248 8. Anti Trust Act, objection under must be inherent in contract itself. Id. 9. Advancements: Security. Authority of Secretary of War to advance moneys to contractor and provide security by requiring balances to be kept in special deposits. U. S. v. Butterworth Co............................................ 387 10. Equitable Lien, of Government for moneys so advanced, when impliedly reserved in such contracts. Id. 11. Id. Equitable lien of Government superior to bank’s right of set-off against debts owed bank by contractor. Id. 12. Construction. Contracts between United States and seller of coal, construed by acts of parties, advertisements and specifications. L. & N. R. R. v. U. S................. 395 13. Sale. Title. Reservation of right by United States to test coal after transportation not inconsistent with passing of title at the mine where bought. Id. ' 14. Implied, of United States to pay market value, where coal expropriated by Director General of Railroads, though lower price fixed by Fuel Administrator. Davis v. Coal Co. 292 15. Right of Cancellation. No general rule that party cannot exercise the right when in default. College Point Boat Co. v. U. S................................................ 12 INDEX. 625 CONTRACTS—Continued. Page. 16. Right of Cancellation. Tender not condition to cancellation by Government under Act June 15, 1917. Id. 17. Id. Anticipatory Breach. When stoppage of performance by Government anticipatory breach and not cancellation of contract under Act June 15, 1917. Id. 18. Id. Right of Cancellation under this statute is continuing, not lost by delay. Id. 19. Specialty. Seal dispenses with consideration. Cairo R. R. v. U. S........................................350 20. United States. Public acts of as sovereign when not pleadable as defense to its action on contract. Horowitz v. U. 8............................................. 458 CORPORATIONS. See Const. Law, V, VIII, XI, 5; Jurisdiction. 1. Stock Transfer, right to where certificate endorsed in blank has been transferred by proceedings in foreign country. Disconto Gesellschaft n. U. S. Steel Corp....... 22 2. Rates. Effect of exercise of power by private gas company to become a public utility on rights of consumer under pre-existing contract. Ft. Smith Co. v. Clear Creek Co.... 231 3. Where Suable. Effect of dealing through subsidiary and owning all its stock on liability of parent corporation to suit in federal court in foreign State. Cannon Mfg. Co. v. Cudahy Co................................................333 COSTS. Award of, and interest, against United States under Suits in Admiralty Act. Shewan v. U. S........................ 86 COVENANT. See Lease. CRIMINAL LAW. See Aliens, 3; Const. Law, XI, 6, 7; Search Warrant. 1. Indictment. Allegation of scienter applicable to series of facts preceding, not merely to last antecedent. Brooks v. U. ..............................................432 2. Concurrent Sentences. When defendant convicted on several counts and, sentenced concurrently on all, error in court’s charge as to one count, insufficient to reverse conviction on others. Id. 42684°—25--------40 626 INDEX. CRIMINAL LAW—Continued. Page. 3. Probable Cause, for search without warrant of motor vehicle for illicit liquor. Carroll y. U. S..... 132 4. Arrest. Upon search and finding liquor, transporter may be arrested without warrant, without reference to whether transporting be felony or misdemeanor. Id. 5. Removal Proceeding. Finding by District Court in habeas corpus that indictment fails to charge criminal offense, not res judicata as to sufficiency of indictment, or as to validity of bench warrant issued by court in which indictment pending. Morse v. U.S................. 80 DAMAGES. See Admiralty, 4; Claims, 6, 8, 14; Contracts, 14 ; Eminent Domain ; Interstate Commerce Acts, 5 ; Sales. DEMISE. See Admiralty, 5. DEMURRER. See Pleading. DENT ACT. See Claims, 1, 2. DEPOSITS. See Contracts, 9. DESCENT AND DISTRIBUTION. See Indians; Public Lands. DIRECTOR GENERAL OF RAILROADS. See Claims, 6, 7; Federal Control Act. DISCRIMINATION. See Const. Law, XI, 4; Interstate Commerce Acts, 3, 4. DURESS: Allegations of held insufficient. Cairo R. R. v. U.S.350 EMINENT DOMAIN. See Claims, 5, 6-10; Const. Law, XI, 2. Damages, limited to interests in property taken; do not include consequential loss of business. Mitchell v. U. S.... 341 EMPLOYER AND EMPLOYEE. See Const. Law, XII, 8. EMPLOYERS LIABILITY ACT: Contributory Negligence and Assumption of Risk, do not affect recovery where injury contributed to by violation of Safety Appliance Act. Chicago G. W. R. v. Schendel...287 ENEMY. See Trading with the Enemy Act. INDEX. 627 EQUITY. See Injunctions. Page. 1. Ancillary Jurisdiction. Fulton Bank n. Hozier.....276 2. Scope of Relief. Incidental claim for damages falls with denial of main part of bill. Pa. Fed. v. P. R. R......203 EROSION. See Oklahoma v. Texas............................452 ESPIONAGE ACT. See Prohibition Act, 4. ESTOPPEL. See Admiralty, 4; Claims, 12; Const. Law, I, 3. EXPORTS. See Const. Law, VI. EVIDENCE. See Criminal Law, 3; Verdict. 1. Of Trade Usage. Austin Nichols & Co. v. Isla de Panay. 260 2. Of Fraud, on consignee in issuing clean bill of lading. Id. 3. Sales. Evidence of fairness of resale made by seller after buyer rejected goods. Small Co. v. Am. Sugar Ref. Co.... 233 Small Co. v. Lamborn & Co............................. 248 4. Of Systematic Underassessment of stocks and bonds. Bohler v. Callaway.......................................479 5. Id. Tax Officials may be called. Id. 6. Search and Seizure, evidence procured by,—when admissible in criminal prosecution. Car roll v. U. S......... 132 Steele v. U.S........................................... 499,505 7. Judicial Notice, of geographical relations of a place and its activities in the illicit liquor trade. Carroll v. U. S.... 132 FEDERAL CONTROL ACT. See Claims, 5-7. Director General of Railroads, authority to settle claims of railroads arising under federal control. St. Louis R. R. v. U. S. . .s.. .v... 346 Cairo R. R. v. U. S......................................350 FEDERAL QUESTION. See Jurisdiction; Procedure. FELONY. See Criminal Law, 4. FINDINGS. See Procedure, 10. FORECLOSURE. See Jurisdiction, IV, 11. FOREIGN LAW. See Judgments, 3. 628 INDEX. FRANCHISE. See Railroads. Page. FRAUD: No Evidence of on consignee in issuance of clean bill of lading notwithstanding known weakness of casks containing goods. Austin Nichols & Co. v. Isla de Panay.....260 FUEL ADMINISTRATOR. See Claims, 5-7. FULL FAITH AND CREDIT. See Const. Law, VIII. HABEAS CORPUS. See Judgments, 2. Comity, between courts, does not prevent jurisdiction over arrested person. Morse v. U.S......................... 80 HARTER ACT. See Admiralty, 4. HIGHWAYS. See Const. Law, IV, 4, 5. HOMESTEAD. See Public Lands. HUSBAND AND WIFE. See Indians, 3. IMMIGRATION. See Aliens. INDIANS: 1. Descent of Creek Allotments, under supplemental agreement, goes to remote Creek heir in preference to non-Creek next of kin. Grayson v. Harris...................352 2. Wills. Mixed blood Indians of Five Civilized Tribes, empowered by Act April 26, 1906, to dispose of restricted allotments by will, subject to regulations of local law. Blundell v. Wallace................................. 373 3. Id. Wife forbidden by Oklahoma law to will more than % of her property away from husband. Id. INDICTMENT. See Criminal Law, 1. INHERITANCE. See Indians; Public Lands. INJUNCTIONS: 1. Refusal to Grant, against tax proceedings, when not res judicata. Bohler v. Callaway.....................479 2. Condition Precedent. When application to Interstate Commerce Commission, condition precedent to suit by carrier to enjoin state regulation on ground of discrimination between shippers. Western & Atl. R. R. y. Comm...492 3. Railroad Labor Board. Decisions of no basis for restrain- ing railroad from exercising legal rights. Pa. Fed. y.P.R.R. 203 INDEX. 629 INSOLVENCY. See Const. Law, XII, 7. Page. Ancillary Jurisdiction. Receivership of insolvent stock brokers, does not empower District Court to settle claim of customer as against bank in which his payment was deposited by the firm. Fulton Bank v. Hosier.............276 INSURANCE. See Admiralty, 1; Const. Law, XII, 7. 1. Beneficiary Societies; Action on Certificate. Rights of member determined by law of State of incorporation, irrespective of place where certificate contract made. Modem Woodmen v. Mixer................................... 544 2. Id. Accrual of Action. Valid to stipulate that right of disappeared member shall not accrue until expiration of his life expectancy. Id. INTEREST: 1. Against United States, under Suits in Admiralty Act. Shewan v. U.S.................................... 86 2. Id. Under War Risk Insurance Act. The Llama.... 76 3. Avoidance. Tender should not be conditioned upon ac- ceptance as payment in full. Bohler v. Callaway......479 INTERNATIONAL LAW. See Boundaries; Judgments, 3; Waters. INTERSTATE COMMERCE ACTS. See Const. Law, IV, 4; Employers Liability Act; Federal Control Act; Safety Appliance Acts. For actions maintainable in state courts under Transportation Act § 206 (a), see Davis v. Coal Co................ 292 1. Extension of Line, under Transportation Act. Smyth v. Asphalt Ry...................................................326 2. Side Tracks. Under § 402 f Transportation Act, power to order establishment or abandonment is with States. Western & Atl. R. R. v. Pub. Service Comm................493 3. Side Tracks; Discrimination; Injunction. Question whether state order requiring side track discriminates between shippers must first be decided by Interstate Commerce Commission before carrier can sue for injunction. Id. 4. Discrimination in Car Service. Federal and not state law applicable where, under carrier’s practice, shipment would move over interstate route and shipper expresses no preference for alternative intrastate route operated by same carrier between same points. Mo. Pac. R. R. v. Stroud............ 405 630 INDEX. INTERSTATE COMMERCE ACTS—Continued. Page. 5. Damage to Goods. Second Cummins Amendment authorizing limitation of liability, held controlling over state statute as to liability of carrier in intrastate shipment governed by tariff and classification adopted under order of Interstate Commerce Commission. Lancaster n. McCarty....................427 6. Railroad Labor Board. Effect of its decision on right of carrier to determine its dealings with employees. Pa. Fed. y. P. R. R...................................................... 203 Pa. Brotherhood v. P. R. R.......................................219 JUDGE. See Contempt, 3, 4. JUDGMENTS. See Criminal Law, 1, 2; Injunctions, 1; Jurisdiction; Procedure. 1. Against Bankrupt, founded on tort, provable claim. Lewis v. Roberts............................................. 467 2. Habeas Corpus. Finding that indictment does not charge offense justifying removal, not res judicata as to sufficiency of indictment, or bench warrant, in court of trial. Morse v.U.S......................................................... 80 3. Foreign Judgment; Stock Ownership. English proceedings involving seizure and disposition of stock certificates of American corporation endorsed in blank, operated to transfer title, and right of transferee to transfer on books recognized here. Disconto-Gesellschaft v. U. S. Steel Corp.............. 22 4. Rehearing. Judgment as modified after rehearing supersedes one first entered, and is the one to which writ of error directed. Wolff Co. v. Court Ind. Rei....................... 552 5. Separability of State Statute, decision of state court conclusive. Id. 6. Reversal. Judgment of not necessarily adjudication of any other than the questions in terms decided and discussed by appellate court. Id. 7. Search Warrant. Judgment upholding on petition for return of goods seized, res judicata upon objection to evidence of seizure in subsequent criminal prosecution. Steele v. U. S. No. 2..................................................... 505 JUDICIAL NOTICE. See Evidence, 7. JURISDICTION. I. Generally, p. 631. II. Jurisdiction of this Court: (1) Over District Court, p. 631. (2) Over Courts of District of Columbia, p. 632. (3) Over State Courts, p. 632. INDEX. 631 JURISDICTION—Continued. Page. III. Jurisdiction of Circuit Court of Appeals, p. 632. IV. Jurisdiction of District Court, p. 632. V. Jurisdiction of Court of Claims, p. 633. yi. Jurisdiction of State Courts, p. 633. See Const. Law, XI, 5; Contempt; Interstate Commerce Acts, 3; Procedure. Federal and local questions. See I, 5; II, (1), 3; II, (2); II, (3), 2-5; III; IV, 1, 2, this title. Finality of judgment, for purposes of review. See II (3), 6, 7. Jurisdiction of Courts of District of Columbia. See Mandamus. I. Generally. 1. Comity. Whether arrest violates comity of courts not question of jurisdiction. Morse v. U.S.................. 80 2. Inquiry Mero Motu into jurisdiction over transferred cause. Smyth v. Asphalt Belt Ry........................... 326 3. Mandamus. Not allowable to control statutory discretion of executive official in construing statute against claim for gratuity. Work n. Rives................................... 175 Work v. Chestatee Co.......................................... 185 4. Enjoining State Tax. Where State administrative remedy exhausted. Bohler v. Callaway............................. 479 5. Id. Federal Question. Injunctive relief without deciding constitutional question. Id. II. Jurisdiction of this Court. (1) Over District Court. 1. Jurisdictional Appeal, must involve jurisdiction of District Court as federal court. Smyth v. Asphalt Belt Ry............... 326 2. Id. Judgment dismissing for want of jurisdiction, not reviewable under Jud. Code § 238 where federal statute excludes jurisdiction in state as well as federal court. Olson v. U. S. Spruce Corp............................................462 3. Non-Federal Question, decided when constitutional ques- tion is decided against plaintiff in error. Brooks n. U.S.... 432 4. Law Case Without Jury. Bill of exceptions or special findings necessary to determine question of jurisdiction not apparent on pleadings. U. S. v. McNeil & Sons.................. 302 632 INDEX. JURISDICTION—Continued. Page. (2) Over Courts of District of Columbia. Construction of Federal law. When “ drawn in question by defendant ”, Jud. Code, § 250. Santa Fe Pacific v. Work... 511 (3) Over State Courts. 1. Certiorari or Error. See Grayson v. Harris...... 352 2. Finding of Fact. When not so related to federal question as to be reexaminable. Id. 3. Non Federal Ground, must be actual basis of decision to avoid reexamination of federal question. Id. 4. Id. Affirmance, where judgment sustained on local ground. Browne v. Union Pac. R. R........................... 255 5. Id. Separability of State Statute. Decision of State court conclusive. Wolff Co. v. Kansas Indus. Ct............. 552 6. Judgment of Reversal. Effect confined to questions in terms decided and discussed by appellate court. Id. 7. Judgment on Rehearing. Supersedes one first entered, and is the one to which writ of error directed. Id. III. Jurisdiction of Circuit Court of Appeals. Over Decree Dismissing BUI, “ for lack of jurisdiction ” based really on denial of claim of right under federal statute. Smyth v. Asphalt Belt Ry.........................................326 IV. Jurisdiction of District Court. See II (1), supra. 1. Jurisdiction or Merits. Validity of claim under federal statute goes to merits and not to jurisdiction as federal court. Smyth v. Asphalt Belt Ry..............................326 2. Id. Questions whether statutory prerequisites to suit against United States complied with, and whether suit should not have been against federal agent under Transportation Act held not jurisdictional. U. S. v. McNeil & Sons.............. 302 3. Venue. Action under Lever Act for value of requisitioned coal. Id. 4. Id. Suits in Admiralty Act. See Nahmeh v. U. S........... 122 5. On Removal, of case against state corporation which was federal agency. Olson v. U. S. Spruce Corp...................462 6. Over Foreign Corporations. Corporation not present in State though doing business by subsidiary of which it owns all the stock. Cannon Mfg. Co. v. Cudahy Co................. 333 7. Id. So held even if such ownership violates law of State of subsidiary’s incorporation. Id. INDEX. 635 JURISDICTION—Continued. Page. 8. Amount in Controversy. In action for agreed price of goods, where plaintiff rescinded, and resold goods for his own account. Stein Co. v. Tip-Top Co........................ 226. 9. Diverse Citizenship. Necessary party plaintiff to be aligned as such. Lee v. Coal Co.......................... 542 10. Ancillary Jurisdiction. Controversy must have direct relation to assets drawn in court’s control by principal suit. Fulton Bank v. Hozier........................................ 276 11. Improvement Taxes; Collection through Receiver. When jurisdiction exercisable by District Court in suit to foreclose mortgage. Guardian Trust Co. v. Road Dist...... 1 V. Jurisdiction of Court of Claims. See Claims. Dent Act. Did not confer jurisdiction on Court of Claims over suit against corporation, which, though a federal agency, was nevertheless a state corporation. Olson v. U. S. Spruce Corp................................................... 462 VI. Jurisdiction of State Courts. See II (3), supra. 1. Transportation Act § 206 (a), actions under for market value of property expropriated by Director General of Railroads, maintainable in state courts. Davis v. Coal Co....292 2. Action against Federal Agency, which is a state corporation, for work done, materials furnished, etc. Olson v. Spruce Production Corp........................................462 JURY. See Verdict; Search Warrant, 2. LAND GRANT RATES. See Claims, 11-13. LEASE. See Parties; Taxation, 5. 1. Acquiescence of Lessor, in use of leased property by United States with permission of lessee, does not bind Government to covenants of lease, in absence of evidence that such acquiescence was known to it. Pearson v. U. S.......423 2. Under Oklahoma Enabling Act. Agricultural lessee not entitled to compel sale, that he might purchase land himself. Price v. Magnolia Co................................415 3. Id. State authorized to execute oil and gas lease to other parties subject to surface rights of agricultural lessee. Id. LEVER ACT. See Contracts, 3, 4. LIBERTY. See Const. Law, XII, 8. LICENSE. See Const. Law, IV, 1. 634 INDEX. LIEN. See Contracts, 6, 10-11. . Page. LIMITATIONS. See Aliens, 2; Contracts, 6. MANDAMUS: Construction of Statute, (Dent Act), by Secretary of Interior, not controllable by mandamus. Work v. Rives. 175 Work v. Chestatee Co............................... 185 MINES AND MINERAL LANDS. See Lease, 3; Public Lands, 3; Taxation, 5. MISDEMEANOR. See Criminal Law, 4. MISTAKE. See Contracts, 2. MORTGAGES. See Jurisdiction, IV, 11. MOTOR VEHICLE THEFT ACT: Punishment of transportation, receipt, concealment or storing of stolen motor vehicle in interstate commerce, constitutional. Brooks n. U. S.....................................432 NATURALIZATION. See Aliens, 1. NAVIGABLE WATERS. See Waters, 1. NEGLIGENCE. See Employers Liability Act. NEW MEXICO. See Boundaries. NOTICE. See Const. Law, XII, 2; Contempt, 3. OFFICERS: “ Officer of the United States ”. See Steele v. U. S. No. 2.. 505 OIL. See Lease, 3. OKLAHOMA. See Indians, 3; Lease, 2. Boundary, in Fort Augur Area. Oklahoma v. Texas...452 PARDON. See Contempt, 1. PARTIES. See Const. Law, I, 3. Necessary. Both of two lessees necessary plaintiffs in suit against lessor to construe and preserve lease, and for accounting, etc. Lee n. Coal Co...................... 542 PARTNERSHIP. See Bankruptcy, 1; Taxation, 6. PENALTY. See Aliens, 3. PERSONAL INJURIES. See Employers Liability Act. INDEX. 635 PLEADING. See Claims, 2; Criminal Law, 1. Page. Release; Accord and Satisfaction,—when apparent in petition or its exhibits may be availed of by demurrer. St. Louis R.R.v.U.S................................... 346 PORT OF NEW YORK AUTHORITY. See Waters, 2. POSSESSION. See Contracts, 6. PRESIDENT. See Contempt, 1. Power, to fix prices. Small Co. v. Am. Sugar Co......233 Small Co. v. Lamborn & Co............................248 PRICES. See Claims, 6, 8; Contracts, 3, 5, 6. PRINCIPAL AND AGENT: Subsidiary of Corporation. Residence not necessarily that of parent company for purposes of federal jurisdiction. Cannon Mfg. Co. v. Cudahy Co......................... 333 PROBABLE CAUSE: See Carroll v. U. S................................. 133 Steele v. U.S. No. 1.................................498 PROCEDURE OF THIS COURT. See Jurisdiction. For other matters appertaining to Procedure, see Admiralty, 6, 7; Bankruptcy; Claims, 2, 4-6; Const. Law, XI, 5, 6; Id. XII, 2; Contempt; Corporations, 3, (venue); Costs; Criminal Law; Equity; Evidence; Habeas Corpus; Injunctions; Insolvency; Interest; Interstate Commerce Acts; Judgments ; Jurisdiction; Mandamus; Parties; Pleading; Search Warrant; Taxation, 8, 9; Verdict; War Risk Insurance Act. Receivers. See I, 3, infra; Insolvency; Jurisdiction, IV, 11; Taxation, 8, 9; I. Original Cases. 1. Boundaries. Settlement of line between New Mexico and Colorado. New Mexico v. Colorado........................ 30 2. Boundary Decree, as to Fort Augur Area. Oklahoma v. Texas....................................................452 3. Receivership Orders, respecting claims and disbursements of funds. Oklahoma v. Texas........................... 7 II. Appellate Cases. 1. Jurisdictional Appeal, must involve jurisdiction of District Court as federal court. Smyth v. Asphalt Belt Ry.... 326 636 INDEX. PROCEDURE OF THIS COURT—Continued. Page. 2. Jurisdictional Appeal, will not lie when federal statute excluded jurisdiction in state as well as District Court. Olson v. U. S. Spruce Corp...............................462 3. Reversal. Judgment of not necessarily adjudication of any other than question in terms decided and discussed by appellate court. Wolff Co. v. Kansas Indus. Ct.......... 552 4. Rehearing. Judgment as modified after rehearing supersedes one first entered, and is the one to which writ of error directed. Id. 5. Transferred Cause, inquiry mero motu into jurisdiction over. Smyth v. Asphalt Belt Ry.......................... 326 6. Certiorari or Error. See Grayson v. Harris.......... 352 7. Bill of Exceptions or Special Finding, necessary to determine question of jurisdiction not apparent on pleadings, where case tried without jury. U. S. v. McNeil & Sons.... 302 8. Federal Question. State Court Affirmed where judgment sustained by local ground. Browne v. Union Pac. R. R. Co. 255 9. Federal Question, not decided when other grounds suffice. Bohler n. Callaway.......................................479 10. Federal Question. Finding of Fact. When not so related to federal question as to be reexaminable. Grayson v. Harris............................................... 352 11. Non-Federal Question, decided when federal question decided against plaintiff in error. Brooks v. U. S.........432 12. Non-Federal Ground, must be actual basis of decision to avoid reexamination of federal question. Grayson v. Harris. 352 13. Non-Federal Ground, judgment of state court resting on, affirmed. Browne v. U. Pac. R. R........................ 255 14. Non-Federal Ground. Separability of state statute. Wolff Co. v. Kansas Indus. Ct............................... 552 PROHIBITION ACT: 1. Searches and Seizures under. Carroll v. U. S......... 132 2. Right to Arrest, offender found transporting liquor in vehicle, independent of whether offence is misdemeanor or felony. Id. 3. Search Warrant. Premises searchable under § 25. Steele v. U. S. No. 1.............................................. 499 4. Id. Officers who may execute under this Act and Espionage Act. Steele v. U. S. No. 2.............'............ 505 INDEX. 637 PUBLIC LANDS: Page. Boundaries between States. See Boundaries. Land Grant Rates. See Claims, 11-13. 1. Homestead Contest. Preference right of contestant’s heirs to prosecute application. Wells v. Bodkin............474 2. Oklahoma Enabling Act. Rights of agricultural lessee of oil land and power of State to make mineral leases. Price v. Magnolia Co....................................1...... 415 3. Railroad Lieu Selection. Under Act June 22, ’74, does not extend to coal land, though such included as “ not min- eral ” in original grant. Santa Fe Pacific v. Work......511 PUBLIC UTILITIES. See Const. Law, V, XII, 3-6. RAILROADS. See Carriers; Claims, 11; Const. Law, XII, 4; Employers Liability Act; Interstate Commerce Acts; Safety Appliance Acts; Taxation, 1; Waters, 1. Scope of Franchise, as authorizing changed construction of bridge and additional tracks. Newark v. Central R. R.... 377 RATES. See Const. Law, V, 1, XII, 5; Interstate Commerce Acts, 5. RECEIVERS. See Insolvency; Procedure, I, 3; Jurisdiction, IV, 11. RELEASE. See Claims, 7. RESCISSION. See Claims, 14; Contracts, 15-18; Sales. RESIDENCE. See Aliens, 1. RES JUDICATA. See Judgments; Injunctions, 1. SAFETY APPLIANCE ACTS: Disabled Car on Siding—when statute remains applicable. Chicago G. W. R. R. v. Schendel........................ 287 SALES. See Const. Law, IV, 1, XI, 7; Contracts, 1-8, 13; Taxation, 3, 4. Damages. Right of seller to recover agreed price after rescission, without deducting amount realized on resale of goods. Stein v. Tip-Top Co.............................. 226 SEARCH WARRANT. See Criminal Law, 3, 4; Judgments, 7. 1. Probable Cause, description of place and goods, and power of officer. Steele v. U. S. No. 1....................... 499 638 INDEX. SEARCH WARRANT—Continued. Page. 2. Probable Cause. Question of fact and law for court, in ruling on admissibility of results as evidence in criminal prosecution—not for jury. Steele v. U. S. No. 2..505 SECRETARY OF INTERIOR. See Claims, 1. SECRETARY OF WAR. See Contracts, 9. SENTENCE. See Criminal Law, 2. SET OFF. See Contracts, 11. STATES. See Boundaries; Const. Law. STATUTES: Consult titles indicative of subject matter and table at beginning of volume. See Judgments, 5. 1. Uncertainty. Lever Act forbidding unreasonable or excessive prices void in civil as well as criminal aspects. Small Co. v. Am. Sugar Ref. Co.................................... 233 Small Co. v. Lamborn & Co........................... 243 2. Unconstitutional Statute. Party not estopped from assailing by vain endeavor to comply with it. Buck v. Kuykendall................................................. 307 3. “ Citizen or Subject ”—may or may not include corporation, according to intent. Swiss Ins. Co. v. Miller..... 42 4. Legislative Construction, by amendment. Id. STOCKBROKERS. See Insolvency; Corporations. STREET RAILWAYS. See Const. Law, XII, 3. SUITS IN ADMIRALTY ACT. See Admiralty, 7; Costs; Interest, 1. TAXATION. See Const. Law, VI; Evidence, 4; Injunctions, 1; Jurisdiction, I, 4. 1. Stamp Tax. Railroad equipment securities issued by Trust Company held subject to. Lederer v. Fidelity Trust Co............................................................. 17 2. Id. Rebate on tobacco withdrawn for export. U. S. v. P. Lorillard Co................................................471 3. Income Tax, discrimination in as between domestic and foreign corporations. Barclay v. Edwards..................442 INDEX. 639 TAXATION—Continued. Page. 4. Income Tax. Exports. Tax on income derived from sale abroad of goods exported, not tax on exports. Id. 5. Id. Mines. Lessee of mine entitled to deduct from gross income for exhaustion of his property interest through removal of the ore. Lynch v. Alworth-Stephens Co............364 6. Id. Partners. Income of partner from partnership business taxable against individual, not the partnership. U. S. v. Kaufman................................................... 408 7. Priority, of United States. Id. 8. Special Assessments, collection of through Receiver in District Court. Guardian Trust Co. v. Road Dist............. 1 9. Assessment in Georgia. Arbitration replaced by petition in equity. Bohler v. Callaway.............................479 TENDER. See Interest, 3. TEXAS: Boundary, in Fort Augur Area. Oklahoma v. Texas.....452 Boundary between Texas and New Mexico. New Mexico v. Texas........................................ 583 TRADE USAGE. See Admiralty, 2. TRADING WITH ENEMY ACT: 1. Seized Property. Of Swiss corporation not returnable because of cessation of its business in Germany which made it an “ enemy ” or because of ending of war. Swiss Ins. Co. v. Miller.............................................. 42 2. Corporations, not included in Clause 1, § 9b of the Act as amended. Id. 3. Id. " Citizen or Subject ” does not include corporation. Id. TRANSPORTATION ACT. See Interstate Commerce Acts. TUCKER ACT. See Claims. UNITED STATES. See Admiralty; Boundaries; Claims: Const. Law, XI, 2; Contracts, 9-20; Costs; Interest, 1; Jurisdiction, II, 2, Y, VI, 1, VI, 2; War Risk Insurance Act. VENDORS LIEN. See Contracts, 6. 640 INDEX. VENUE. See Jurisdiction, IV, 3; VI. Page. VERDICT: Duty to direct when evidence conclusive though not free from conflict. A. B. Small Co. v. Lambom & Co...248 WAR CONTRACTS. See Claims; Contracts, 9 et seq. WARRANT. See Criminal Law, 3, 4; Search Warrant. WAR RISK INSURANCE ACT: United States liable to ordinary incidents of suit and payment of interest. Standard Oil Co. v. U.S....... 76 WATERS: 1. Railroad Bridge. Replacement, with additional tracks, impliedly authorized by original authority from State of New Jersey to construct. Newark n. Cent. R. R............... 377 2. Id. Approval by Port of New York Authority created by compact between New Jersey and New York with consent of Congress, unnecessary. Id. 3. Id. Omission to include in plan for development of Port of New York does not prohibit company from constructing necessary bridge. Id. WILLS. See Indians, 2. WITNESSES. See Evidence. WORKMENS COMPENSATION ACTS: Attorneys Fees. Yeiser v. Dysart540 o