UNITED STATES REPORTS VOLUME 273 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1926 From January 3, 1927 (in part) TO AND INCLUDING APRIL 11, 1927 ERNEST KNAEBEL REPORTER UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON 1927 Under the Act of May 29, 1926, 44 Stat. 677, copies of this volume may be purchased from the Superintendent of Documents, Government Printing Office, Washington, D. C., at cost plus 10 per cent. n 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. JAMES CLARK McREYNOLDS, Associate Justice. LOUIS D. BRANDEIS, Associate Justice. GEORGE SUTHERLAND, Associate Justice. PIERCE BUTLER, Associate Justice. EDWARD T. SANFORD, Associate Justice. HARLAN FISKE STONE, Associate Justice. JOHN G. SARGENT, Attorney General. WILLIAM D. MITCHELL, 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. in SUPREME COURT OF THE UNITED STATES. October Term, 1926.1 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 Justice. For the Eighth Circuit, Willis Van Devanter, Associate Justice. For the Ninth Circuit, George Sutherland, Associate Justice. March 16, 1925. * IV 1 For next previous allotment, see 268 U. S., p. IV. IV TABLE OF CASES REPORTED. Page. A Cargo of 3,253 Tons of Coal, United States, substituted for Bergman v........................... 696 A Cargo of 3,248 Tons of Coal, United States, substituted for Miller v............................ 696 Ackerson v. United States....................... 702 Adams, United States Steel Products Co. v........ 680 Adler, Mueller v................................ 774 Aeby, Missouri Pacific R. R. Co. v.............. 679 Aetna Insurance Co. v. Hyde..................... 681 Aetna Life Ins. Co. v. Bundscho................. 716 Aetna Life Ins. Co., Kimble, Administrators, v... 757 Aetna Life Ins. Co., Tooley, Executrix, v....... 755 Alaska S. S. Co., Ellamar Mining Co. v.......... 780 Albrecht v. United States......................... 1 Albury v. United States......................... 706 Alexander, Commissioner, Tucker v............... 689 Alexander Milburn Co. v. Union Carbide & Carbon Corp...................................... 757 Allen, Collector, Shukert, Executrices, v....... 545 Allen, Ohio ex rel., v. Lutz.................... 654 Allen v. New York, Philadelphia & Norfolk R. R. Co. 756 Allen, Toledo, St. Louis & Western R. R. Co. v... 688 Allison, Executrices, Dodge v................... 774 Alvey-Ferguson Co., Schoenhofen Brewing Co. v... 743 American Chain Co. v. Weaver, Inc............... 699 American Exchange Irving Trust Co., Executor, v. United States............................... 751 American Railway Express Co. v. Harris....... 695 American Railway Express Co. v. Kentucky...... 269 American Railway-Express Co. v. Kriger....... 672 V VI TABLE OF CASES REPORTED. Page. American Railway Express Co. v. Rose, Executors.. 743 American Railway Express Co. v. Royster Guano Co. 274 American Railway Express Co. v. United States.... 750 American Refining Co. v. United States......... 777 American Refining Co., United States, v........ 777 American Security Co. v. Steel’s Consolidated, Inc.. 752 American Smelting & Refining Co. v. Carson...... 695 American Surety Co., McInnes, Receiver, v.......707 Amos v. United States.......................... 713 Amsinck & Co., Bliss Syrup Refining Co. v....... 768 Amsinck & Co., Grainger Brothers Co. v......... 768 Amsinck & Co., Hughes Co. v.................... 768 Anastasopoulos v. Steger & Sons Piano Mfg. Co.... 769 Anderson, Taylor Co. v.......................... 681 Anderson v. United States...................... 700 Anderson, Collector, McNeir v...................692 Anthony v. Kozer............................... 651 Appelbaum, State Bank v....................... 712 Appelgate, Margay Oil Corp, v...................666 Archer, Sischo v............................... 731 Archimedes, The, Jackson v...................... 679 Arkansas Land & Lumber Co., Mellon, Director Gen- eral v ...................................... 676 Arkansas Valley Interurban Ry. Co., Public Utilities Comm, v .................................... 770 Arkell & Douglas, Inc., United States v........ 735 Armstrong v. De Forest......................... 734 Armstrong v. United States..................... 766 Arnold v. Collins............................. 717 Arnold, Maison Dorin Societe Anonyme v..... 766,767 Arnold, Administrator, United States v......... 683 Arocho v. Porto Rico........................... 760 Ashbough v. United States...................... 728 Atchison, Topeka & Santa Fe Ry. Co. v. Mappin, Administratrix.....................;........... 729 Atkin v. Baier................................. 716 Atkinson, Oklahoma Coal Co. v................ 773 TABLE OF CASES REPORTED. vn Page. Atlantic Coast Line R. R. Co. v. Florida ex rel. Burr.............................'........ 691*730 Atlantic Coast Line R. R. Co., Standard Oil Co. v.. 691 Atlantic Coast Line R. R. Co. v. Standard Oil Co. of Ky......................................... 691 Atlantic Coast Line R. R. Co. v. Standard Oil Co. of N. J........................................712 Atlantic Coast Line R. R. Co. v. Wimberley, Administrator .................................... 673 Atlantic Refining Co., Hodgman v................ 731 Attleboro Steam & Electric Co., Public Utilities Comm, v...................................... 83 Auburn & Alton Coal Co. v. United States........ 714 Auchenback, Philadelphia & Reading Ry. Co. v.... 761 Austin Machinery Co., Buckeye Traction Ditcher Co. v......................................... 747 Automatic Ticket Register Co., National Electric Ticket Register Co. v......................... 764 Ayer, Inc., Federal Trade Comm, v.............. 759 Baier, Atkin v.................................. 716 Bailey v. United States......................... 751 Baker, Kansas City v............................ 666 Baker, Shown, Trustee, v........................ 733 Baker, Receiver, v. United States............... 732 Ballard, Mutzenbecher v......................... 766 Baltimore & Ohio R. R. Co. v. Hines, Administrator ...................................... 761, 762 Baltimore & Ohio R. R. Co. v. Moore, Administrator ........................................... 727 Baltimore & Ohio Southwestern R. R. Co. v. Hill, Administrator..................................... 738 Bank of Montreal v. Beacon Chocolate Co......... 744 Banta v. United States.......................... 715 Banton, Tyson & Brother—United Theatre Ticket Offices v..................................... 418 Baragano v. Porto Rico.......................... 782 Barker Painting Co. v. Brotherhood of Painters.... 748 VIII TABLE OF CASES REPORTED. Page. Barnps v. Southern Pacific Co................... 766 Barnes, Trustee, v. Schatzkin................... 709 Barnett v. United States........................ 709 Barrett Co. v. United States.................... 227 Bartlett, Conner v.............................. 661 Bartoncini v. United States..................... 636 Barusch v. Brainard, Trustee.................... 699 Bauchspies v. Central R. R. Co. of N. J......... 763 Bayer, Pacific Power & Light Co. v.......:....;. 647 Beacon Chocolate Co., Bank of Montreal v......... 744 Bedford Cut Stone Co. v. Journeymen Stone Cutters’ Assn..................................... 677 Beech-Nut Packing Co. v. Lorillard Co........... 629 Beery v. Houghton............................... 671 Begley v. Erasime............................... 655 Belridge Oil Co., United States v............... . 733 Belvin v. United States......................... 706 Benford v. Georgia.............................. 635 Benham, Ex parte................................ 644 Benham v. United States......................... 721 Bennison, Mellon, Director General, v........... 77$ Bergron v. Hellsten............................. 700 Betts v. United States.......................... 762 Billington, Stewart v.........i. . . .............. 755 Bilodeau v. United States....................... 737 Binford, International-Great Northern R. R. Co. v.. 694 Bingham, Mendez v............................... 745 Birmingham Belt R. R. Co. v. Hendrix, Administratrix .......................................... 758 Bissett, Lehigh Valley R. R. Co. v.............. 738 Black & White Taxicab Co. v. Brown & Yellow Taxicab Co................................... 690 Bliss v. Graves................................. 724 Bliss Co. v. United States...................... 677 Bliss Syrup Refining Co. v. Amsinck & Co........ 768 Blount, Administratrix, United States v......... 769 Board of Public Works of Los Angeles, Miller v.. 781 TABLE OF CASES REPORTED. IX Page. Bobkowski v. Curran, Commissioner............... 740 Bogigian v. Long................................ 746 Boorman v. Edwards & Deutsch Lithographing Co.. 738 Booth-Kelly Lumber Co., Oregon & California R. R. Co. v......................................... 707 Bothwell, Receivers, v. Buckbee, Mears Co........ 689 Bovard v. United States......................... 701 Bowers v. Fuller............................... 346 Bowers v. New York & Albany Lighterage Co........346 Bowers v. Seaman................................ 346 Bowers, Collector, v. Frew...................... 682 Bowers, Collector, Mitchel v................... 759 Boyle, Union Pacific R. R. Co. v................ 741 Brainard, Trustee, Barusch v.................... 699 Breaux v. Louisiana............................. 645 Brein v. State Department of Health............. 640 Brewer, Canal-Commercial Trust & Savings Bank v........................................... 638,643 Brian v. United States.......................... 643 Brockett, Land v................................ 757 Broderick & Bascom Rope Co. v. Luckenbach S. S. Co............................................ 741 Bronx Gas & Electric Co., Ottinger v............ 772 Brotherhood of Painters, Barker v............... 748 Brown, Receivers, Miller v...................... 733 Brown & Yellow Taxicab Co., Black & White Taxicab Co. v....................................... 690 Brundage, Receiver, Harkin v.................... 682 Brunskill, Graves v.......................,..... 726 Brunswick-Balke-Collender Co., Victor Talking Machine Co. v..................................... 670 Buchanan, Mechanics & Metals National Bank v... 715 Buchhalter v. Solomon........................... 640 Buckbee, Mears Co., Bothwell, Receivers, v....... 689 Buckeye Traction Ditcher Co. v. Austin Machinery Co.............................................. 747 Buder v. Franz...................................756 X TABLE OF CASES REPORTED. Page. Bundscho, Aetna Life Ins. Co. v............... 716 Burr, Florida ex rel., Atlantic Coast Line R. R. Co. v................................... 691,730 Burr, Florida ex rel., Seaboard Air Line Ry. Co. v................................... 691,729 Burton Coal Co., United States v................. 337 Byars v. United States......................... 28 Calcasieu National Bank v. Campbell........... 720 California Eiseman v................. 663 California, Ives v............................... 663 California, Nelson v............................. 641 California Prune & Apricot Growers, Inc., El Reno Wholesale Grocery Co. v..................... 765 California Prune & Apricot Growers, Inc., Higgins v. 781 California Wine Assn., United States Shipping Board Emergency Fleet Corp, v..................... 683 Cammack, Texas & New Orleans R. R. Co. v....... 720 Campbell, Calcasieu National Bank v............. 720 Campbell v. United States..................... 722 Canady, Jennings v............................ 728 Canal-Commercial Trust & Savings Bank v. Brewer.................................. 638,643 Cantrell v. United States..................... 768 Carelli v. Ohio............................... 710 Carnegie Steel Co. v. Colorado Fuel & Iron Co. 731 Caron Corp. v. Muraour et Cie................. 729 Carroll v. United States...................... 763 Carson, American Smelting & Refining Co. v.... 695 Carter v. United States..................... 701 Cate v. United States......................... 742 Catz American Shipping Co. v. United States Ship- ping Board Emergency Fleet Corp............. 747 Celluloid Co. v. Massachusetts............ 723,778 Central National Bank of Marietta, Administrator, v. Dodson..................................... 724 TABLE OF CASES REPORTED. XI Page. Central R. R. Co. of N. J., Bauchspies v........ 763 Chambers, Emlenton Refining Co. v............... 731 Charleston Mining Co. v. United States.......... 220 Chase National Bank, Sayles v................... 708 Checa, United States ex rel., v. Williams....... 724 Chesapeake & Ohio Ry. Co. v. Leitch............. 678 Chesapeake & Ohio Ry. Co., Linstead, Executrix, v.. 690 Chicago & Northwestern Ry. Co., Eveland v... 680, 775 Chicago & Northwestern Ry. Co., Williams v...... 670 Chicago & North Western Ry. Co. v. Industrial Comm, of Ill.................................. 757 Chicago & North Western Ry. Co. v. Michigan Public Utilities Comm..............•............... 779 Chicago Great Western R. R. Co. v. Jackson....... 770 Chicago, Indianapolis & Louisville Ry. Co. v. Craw- ford.......................................... 754 Chicago, Rock Island & Pacific Ry. Co. v. Howe- McCurtain Coal Co............................. 734 Chicago Steamship Lines v. United States Lloyds... 698 Chillicothe Furniture Co. v. Revelle, Receiver... 741 Chin Hen Youe, Damon ex rel., v. Johnson, Commissioner ...................................... 772 Chin Set Wong v. Johnson, Commissioner........... 774 Chin Wey v. Wixon, Commissioner................. 650 Chin Wing Dip, Damon ex rel., v. Johnson, Commissioner ..................................... 655 Christoulas v. Curran, Commissioner............. 704 Clark v. United States.......................... 774 Claussen, United States ex rel., v. Curran, Commissioner ...................................... 688 Clay v. City of Eustis......................... 781 Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., New York Central Securities Corp, v............ 664 Cocke, Morgan’s Louisiana & Texas R. R. & S. S. Co. v........................................ 656 Coggins Co., Kunihiro v......................*.... 723 XII TABLE OF CASES REPORTED. Page- Collado v. Girona............................ 644 Collins, Arnold v............................ 717 Collins, Weksler v........................... 779 Collins, Administratrix, v. Erie R. R. Co.... 702 Colonial Transp. Co. v. United States........ 727 Colonial Trust Co., Duffy v............... l. ..... 765 Colorado Fuel & Iron Co., Carnegie Steel Co. v.... 731 Commander of the S. S. Giuseppe Verdi, Maniglia v. 779 Commissioner of Immigration, United States ex rel. Vajtauer v................................... 103 Conley v. Wollard, Administrator............. 674 Conner v. Bartlett .......................... 661 Contreras v. United States................. 673 Converse v. United States.................... 708 Copeland v. United States................... 708 Coppard, Trustee, v. Martin.................. 753 Corona Cord Tire Co. v. Dovan Chemical Corp.... 692 Cosmano, United States ex rel., v. Davis, Secretary of Labor...................................... 738 Cotterman v. United States................... 732 Craig v. St. Louis-San Francisco Ry. Co...... 714 Craven, Detroit United Ry. v................. 713 Crawford, Chicago, Indianapolis & Louisville Ry. Co. v...................................... 754 Crider, Fisher v. :.......................... 655 Cripple Creek & Colorado Springs R. R. Co., United States ex rel., v. Interstate Commerce Comm. 706 Croker, White v........ 715 Cropper Knitting Mills v. Franklin Knitting Mills.. 761 Cunningham v. Potts.......................... 652 Curdts v. South Carolina Tax Comm............ 669 Curran, Commissioner, Bobkowski v............ 740 Curran, Commissioner, Christoulas v.......... 704 Curran, Commissioner, Menaregidis v............. 704 Curran, Commissioner, Spremulli v ............... 754 Cur ranf Commissioner, United States ex rel. Claussen v.......................................... 688 TABLE OF CASES REPORTED. xm Page. Curtis & Company Mfg. Co., United States v...... 771 Cusmano v. United States............... 773 Cutchoque, Steam Tug, Lehigh Valley R. R. Co. v.. 703 Dad’s Auto Accessories, Inc. v. City of Nashville... 770 Dale v Indiana......................... 776 Damon ex rel. Chin Hen Youe v. Johnson, Commissioner ........................... 772 Damon ex rel. Chin Wing Dip v. Johnson, Commissioner ............................. 655 Damon ex rel. Fong Hang Leong v. Johnson, Commissioner ............................. 649 Damskibs Aktieselsk Orient v. Grace & Co........ 748 Daugherty, Kentucky ex rel., v. Von Zedwitz. 735 Daugherty, McGrain v................... 135 Davis, Laveirge v.................... 714 Davis v. McFarland..................... 754 Davis, Secretary of Labor, United States ex rel. Cos-mano v................................. 738 Davis Sewing Machine Co. v. United States....... 324 Day, Trainer v......................... 740 Day v. Union Switch & Signal Co........ 756 De Coster, Philippine Sugar Estates Development Co. v717 De Forest, Armstrong v.................... 734 De Forest Radio Telephone Co. v. United States... 236 De Land, Receiver, Security Trust Co., Receiver, v.. 713 Delaware, Lackawanna & Western R. R. Co., Ex parte.................................. 647 Delaware, Lackawanna & Western R. R. Co. v. Rell-stab................................... 685 Delaware, Lackawanna & Western R. R. Co. v. Town of Morristown................. 686 Denver, City and County of, v. Stenger. 657 Derby Oil Co. v. Motter, Collector..... 762 Detroit Terminal R. R. Co. v. Pennsylvania-Detroit R. R. Co.............................. 758 XIV TABLE OF CASES REPORTED. Page. Detroit United Ry. v. Craven.................... 713 Deutsche Bank of Berlin v. Zimmermann........... 780 Dickinson v. New England Power Co............... 748 Dickinson, Receiver, v. United States........... 663 Dingess Rum Coal Co., Steel & Tube Co. v......... 714 Di Santo v. Pennsylvania......................... 34 District Court, Lapique v... :.................. 635 District Court, Stewart v....................... 755 D’Olier v. United States....................... 700 Dodge v. Allison, Executrices................... 774 Dodson, Central National Bank of Marietta, Administrator, v..................................... 724 Donham v. West-Nelson Mfg. Co................... 657 Dovan Chemical Corp., Corona Cord Tire Co. v.... 692 Do Wing v. Johnson, Commissioner................ 651 Drake v. Thompson............................... 744 Duby, Morris v.............................. 641, 651 Duckett & Co. v. United States.................. 680 Duff, Rauch v................................... 720 Duffy v. Colonial Trust Co...................... 765 Duluth Street Ry. Co., Railroad & Warehouse Comm, v....................................... 625 Dunlap v. United States......................... 764 Dunn v. Louisiana............................... 656 Du Pont de Nemours & Co., Josey Guano Co. v.... 696 Eastman Kodak Co. v. Southern Photo Materials Co............................................ 359 Edelstein, Washington ex rel., v. Huneke........ 747 Edenfield v. United States...................... 660 Edgeley, International-Great Northern R. R. Co. v.. 694 Edmonds v. Town of Haskell...................... 647 Edwards & Deutsch Lithographing Co., Boorman v. 738 Eiseman v. California........................... 663 Eisner, Collector, Rice v....................... 764 Electric Reduction Co., Lewellyn, Collector, v... 676 Electro Bleaching Co., Paradon Engineering Co. v.. 728 TABLE OF CASES REPORTED. xv Page. Ellamar Mining Co. v. Alaska S. S. Co........... 780 El Reno Wholesale Grocery Co. v. California Prune & Apricot Growers, Inc....................... 765 Ely-Norris Safe Co., Mosier Safe Co. v.......... 132 Emlenton Refining Co. v. Chambers............... 731 Equitable Trust Co., Trustee, v. First National Bank. 684 Erasime, Begley v............................... 655 Erie R. R. Co., Collins, Administratrix, v......... 702 Errtte, Village of Terrace Park v. \. 710 Esther M. Rendle, The, v. United States......... 730 Eustis, City of, Clay v...'..................... 781 Eveland v. Chicago & Northwestern Ry. Co.... 680,775 Exchange Building Co., Peebles v................ 761 Ex parte Benham................................. 644 Ex parte City of New York....................... 650 Ex parte Delaware, Lackawanna & Western R. R. Co........................................... 647 Ex parte Franklin & Abbeville Ry. Co............ 670 Ex parte Jameson................................ 650 Ex parte Lake Charles & Northern R. R. Co........ 670 Ex parte Leather................................ 661 Ex parte Louisiana Western R. R. Co............ 669 Ex parte Maison Dorin Société Anonyme......... 673 Ex parte Malleable Iron Range Co............... 661 Ex parte Morgan’s Louisiana & Texas R. R. & S. S. Co........................................... 669 Ex parte Phillips.............................. 662 Ex parte Semaphoric Indicator Co............... 661 Ex parte Whitman............................... 644 ■ Ex parte Whitmann............................. 654 Fajardo v. Philippine Islands;...................733 Fall, Secretary of Interior, Pueblo of Santa Rosa v........................................ 315,678 Farina Bus Line & Transp. Co., City of Hammond v.. 675 Farmers National Bank of Burlington, Kansas Flour Mills Co. v................................... ’727 XVI TABLE OF CASES REPORTED. Page. Farrington v. Tokushige..................... 284,677 Federal Life Ins. Co. v. Rascoe................. 722 Federal Trade Comm. v. Ayer, Inc................ 759 Federal Trade Comm. v. Pacific States Paper Trade Assn........................................ 52 Federal Trade Comm. v. Procter & Gamble Co....... 718 Federal Trade Comm., Procter & Gamble Co. v.... 717 Ferguson v. Florida............................. 663 Ferguson, Executor, v. United States............ 660 Fetty, Land Company of Florida v................ 764 Fetzer, Johnson v..........~.. 751 Finance & Guaranty Co. v. Oppenheimer, Trustee.. 689 Firestone Tire & Rubber Co., Universal Rim Co. v.. 711 First National Bank of Hartford v. City of Hartford. 548 First National Bank of Henryetta, Larabee Flour Mills Corp, v.................................. 727 First National Bank of Ogden v. First National Bank of Rigby....................................... 760 First National Bank of Rigby, First National Bank of Ogden v...................................... 760 First National Bank of St. Paul, Minnesota v.....561 First National Bank of Trinidad, Equitable Trust Co., Trustee, v ............................... 684 First Reinsurance Co. of Hartford, Munich Reinsurance Co. v...................................... 666 Fisher v. Crider................................ 655 Fisher, Guy v.................................. 762 Five Hundred Cases of Tomatoes v. Leggett & Co.. 761 Flagstaff, Town of, v. Walsh.................... 695 Flint, Robbins Dry Dock & Repair Co. v.......... 679 Florida, Ferguson v............................. 663 Florida v. Mellon, Secretary of Treasury......... 12 Florida ex rel. Burr, Atlantic Coast Line R. R. Co. v......................................... 691,730 Florida ex rel. Burr, Seaboard Air Line Ry. Co. v.............................?........... 691,729 Floyd, Miller Lumber Co. v...................... 673 TABLE OF CASES REPORTED. xvn Page. Fong Hang Leong, Damon ex rel., v. Johnson, Commissioner ....................................... 649 Fong Suey Chong v. Nagle, Commissioner.......... 667 Ford v. United States............................ 593 Ford Hydro-Electric Co. v. Neeley................ 723 Fox, Gorieb v.................................... 687 Francis v. Williams.............................. 693 Franklin & Abbeville Ry. Co., Ex parte........... 670 Franklin Knitting Mills, Cropper Knitting Mills v.. 761 Franz, Buder v................................... 756 Frew, Bowers, Collector, v....................... 682 Friedenwald v. Friedenwald....................... 763 Fuller, Bowers v................................. 346 Gallagher v. Hannigan, Trustee................... 667 Galveston, City of, Hayman v.. 414 Galveston Dry Dock & Const. Co. v. United States.. 725 Gardiner, Louisiana & Western R. R. Co. v....... ^ 280 Garfield, Receiver, v. Mallory S. S. Co.......... 703 Gay v. United States............................. 705 General Outdoor Advertising Co., Williams v....... 721 General Petroleum Corp. v. County of Kern......... 640 Georgetown National Bank v. McFarland............. 568 Georgia, Benford v............................. 635 Georgia, Johnson v.............................. 635 Georgia, Rhodes v................................ 775 Geraghty, Potter v................:.............. 773 Gibson v. National Bond & Investment Co........... 668 Gillespie v. United States....................... 730 Gilmore v. Illinois.............................. 772 Girona, Collado v................................ 644 Givens, United States ex rel., v. Work, Secretary of Interior....................................... 711 Goff, Yaselli v................................ 677 Goldman v. Illinois............................. 637 Goldstein v. United States....................... 750 Gonzalez, Lopez v................................ 727 42847°- -27-II XVIII TABLE OF CASES REPORTED. Page. Goodbody, Receiver, v. Pennsylvania R. R. Co..... 665 Goodyear, Administrator, Mellon, Director Gen- eral, v....................................... 684 Goodyear Tire & Rubber Co. v. United States.. 100, 692 Gorieb v. Fox ................................. 687 Gould, McMaster, Receivers, v................... 677 Grace & Co., Dampskibs Aktieselsk Orient v....... 748 Grace & Co. v. Kaisha.......................... 717 Grace & Co. v. Panama R. R. Co................. 715 Gracie v. United States....................... 748 Grainger Brothers Co. v. Amsinck & Co.......... 768 Grannis, Liberty Warehouse Co. v................ 70 Grantham, Mellon, Director General, v............ 707 Graves, Bliss v................................ 724 Graves v. Brunskill............................ 726 Great Northern Ry. Co. v. Minnesota............ 658 Great Northern Ry. Co. v. Sutherland, Alien Property Custodian................................ 182 Griffith, Kansas ex rel., Knights of the Ku Klux Klan v ........... 664 Gubler, Oregon Short Line R. R. Co. v............ 709 Guggenheim v. United States.................... 704 Gulf, Mobile & Northern R. R. Co. v. Myers. 766 Gulf, Mobile & Northern R. R. Co. v. Touchstone.. 691 Gulf Refining Co. v. Phillips.................. 697 Gulf Refining Co. v. Sandlin................... 697 Guy v. Fisher.................................... 762 Hall, Louisville & Nashville R. R. Co. v....... 653 Hammond, Oregon & California R. R. Co. v....... 707 Hammond, City of, v. Farina Bus Line & Transp. Co......................................... 675 Hammond, City of, v. Schappi Bus Line.......... 675 Hannigan, Trustee, Gallagher v................. 667 Hanover Fire Ins. Co. v. Merchants Transp. Co.... 758 Hardee, Horton v.....................1. 714 Harkin v. Brundage, Receiver................... 682 TABLE OF CASES REPORTED. XIX . Page. Harmon v. Tyler................................. 668 Harris, American Railway Express Co. v........... 695 Harris, Receiver, Hudson v...................... 743 Harris, Receiver, Owens v........................ 743 Harry, James-Dickinson Farm Mortgage Co. v....... 119 Hart v. Keith Vaudeville Exchange........... 703, 704 Hart v. North................................... 637 Hart v. United States........................... 694 Hartford, City of, First National Bank of Hartford v. 548 Hartford Accident & Indemnity Co. v. Southern Pacific Co.................................... 207 Harvey v. Louisiana............................. 635 Haskell, Town of, Edmonds v.................... 647 Havard, Rosengrant v........................... 664 Hawkins v. United States....................'.,.. 740 Hayman v. City of Galveston..................... 414 Hecht, United States ex rel., Oppenheim v......... 769 Heddon’s Sons, Inc., South Bend Bait Co. v 737 Heiner, Colector, McDowell, Executrix, v........ 759 Hellmich, Collector, v. Misouri Pacific R. R. Co........................................ 242, 678 Hellsten, Bergron v............................. 700 Henderson County v. Woodmen of the World......... 721 Henderson Tire & Rubber Co. v. Reeves........... 744 Hendrix, Administratrix, Birmingham Belt R. R. Co. v......................................... 758 Henry v. Henry................................. 698 Herndon, Nixon v................................ 536 Hicks v. United States..........................‘736 Higgins v. California Prune & Apricot Growers, Inc.. 781 Highway Construction Co., McClelland v......... 765 Hill, Administrator, Baltimore & Ohio Southwestern R. R. Co. v.................................. 738 Hines, Administrator, Baltimore & Ohio R. R. Co. v..................................... 761,762 Hodgman v. Atlantic Refining Co................. 731 Holyoke Street Ry. Co., Interstate Busses Corp. v... 45 XX TABLE OF CASES REPORTED. Page. Hood v. United States............................ 765 Hopkins v. Southern California Telephone Co......685 Horowitz v. United States........................ 697 Horton v. Hardee................................. 714 Houghton, Beery v............................. 671 Houston Printing Co., Pulitzer Publishing Co. v.... 694 Howe-McCurtain Coal Co., Chicago, Rock Island & Pacific Ry. Co. v.............................. 734 Hoxie v. United States........................... 755 Hudson v. Harris, Receiver....................... 743 Hughes Co. v. Amsinck & Co....................... 768 Huneke, Washington ex rel., Edelstein v.......... 7^1 Hunnicutt v. United States....................... 768 Hurley Motor Co., Myers v......................... 18 Huron Navigation Corp. v. United States...........778 Huron Navigation Corp., United States v.......... 777 Husted, Piedmont Coal Co. v.................... 726 Hyde, Aetna Insurance Co. v..................... 681 Illinois, Gilmore v.............................. 772 Illinois, Goldman v.............................. 637 Illinois, Michigan v............................. 637 Illinois, New York v........................ 640,642 Illinois, Wisconsin v........................ 642, 644 Illinois Central R. R. Co. v. United States.. 710, 752 Indiana, Dale v................................. 776 Industrial Comm, of Ill., Chicago & North Western Ry. Co. v ..................................... 757 Industrial Engineering Co. v. United States....... 659 Inge, Seaboard Air Line Ry. Co. v................ 753 Ingenohl v. Olsen & Co........................... 541 Ingram-Day Lumber Co. v. McLouth................. 684 International-Great Northern R. R. Co. v. Binford.. 694 International-Great Northern R. R. Co. v. Edgeley.. 694 International-Great Northern R. R. Co. v. Texas Co....................,........................ 771 International Trust Co., Myers v................. 380 TABLE OF CASES REPORTED. xxi Page. Interstate Busses Corp. v. Holyoke Street Ry. Co... 45 Interstate Commerce Comm., United States ex rel. Cripple Creek & Colorado Springs R. R. Co. v... 706 Ives v. California............................. 663 Jackson, Chicago Great Western R. R. Co. v......770 Jackson, McIntosh, Comptroller of Currency, v.... 697 Jackson v. S. S. Archimedes.................... 679 Jacob Reed’s Sons v. United States............. 200 James v. Norfolk & Western Ry. Co.............. 662 James-Dickinson Farm Mortgage Co. v. Harry...... 119 James-Dickinson Farm Mortgage Co. v. Seimer.... 700 Jameson, Ex parte.............................. 650 Jenkins v. United States....................... 649 Jennings v. Canady............................. 728 Jezewski v. United States..................... 735 Johns, Trustee, v. Pacific-Southwest Trust & Savings Bank......................................... 753 Johns, Trustee, v. United Bank & Trust Co....... 753 Johnson v. Fetzer.............................. 751 Johnson v. Georgia............................. 635 Johnson v. Whitney Co.......................... 734 Johnson, Commissioner, Chin Set Wong v......... 774 Johnson, Commissioner, Damon ex rel. Chin Hen Youe v..................................... 772 Johnson, Commissioner, Damon ex rel. Chin Wing Dip v........................................ 655 Johnson, Commissioner, Damon ex rel. Fong Hang Leong v...................................... 649 Johnson, Commissioner, Do Wing v............... 651 Johnson, Commissioner, Quon Quon Poy v..........352 Johnson, Commissioner, Seid Man v.............. 775 Jones v. Mississippi........................... 639 Jones v. United States......<.................. 701 Jones, Trustees, v. Prairie Oil & Gas Co....... 195 Jones & Co., United States Shipping Board Emergency Fleet Corp, v............................ 683 XXÎI TABLE OF CASÉS REPORTED. Page. Jordan, United Verde Copper Co. v.............. 734 Jordon, United Verde Extension Mining Co. v..... 734 Josey Guano Co. v. Du Pont de Nemours & Co...... 696 Journeymen Stone Cutters’ Assn., Bedford Cut Stone Co. v........................................ 677 Kaisha, Grace & Co. v........................... 717 Kansas ex rel. Griffith, Knights of the Ku Klux Klan v....................................... 664 Kansas City v. Baker........................... 666 Kansas Flour Mills Co. v. Farmers National Bank of Burlington................................ 727 Kattenburg, Qualsett v......................... 645 Keeler v. Myers................................ 668 Keith Vaudeville Exchange, Hart v........... 703, 704 Kelley, New State Land Co. v.................... 720 Kelley v. Oregon................................589 Kelly v. Watkins............................... 671 Kemp v. United States.......................... 703 Kendrick v. Kendrick........................... 758 Kentucky, American Railway Express Co. v........ 269 Kentucky ex rel. Daugherty v. Von Zedwitz....... 735 Kercheval v. United States..................... 685 Kern, County of, General Petroleum Corp, v...... 640 Kessler & Co. v. United States................. 700 Kiel, Missouri ex rel. Luechtefeld v............... 659 Kimble, Administrators, v. Aetna Life Ins. Co... 757 King, Missouri-Kansas-Texas R. R. Co. v.......... 680 Knickerbocker Merchandising Co. v. United States.. 729 Knoxville, City of, Knoxville Ice & Cold Storage Co. v........................................ 776 Knoxville Ice & Cold Storage Co. v. City of Knoxville........................................ 776 Kny, Executrix, v. Miller, Alien Property Custodian. 778 Konsoute v. Pennsylvania R. R. Co.............. 747 Kornhauser v. United States.................... 692 Kozer, Anthony v............................... 651 TABLE OF CASES REPORTED. XXIII Page. Kozer, Martine v............................... 651 Kriger, American Railway Express Co. v......... 672 Ku Klux Klan, Knights of the, v. Kansas ex rel. Griffith..................................... 664 Kunihiro v. Coggins Co........................ 723 Kunihiro v. Lyon Brothers Co................... 723 Lake Charles & Northern R. R. Co., Ex parte.... 670 Lam Young, Nagle, Commissioner v............... 682 Lamar Life Ins. Co., Ponder v.................... 703 Lambom v. National Bank of Commerce of Norfolk........................................... 688 Lambom v. S. S. Texas Maru..................... 736 Land v. Brockett............................... 757 Land Company of Florida v. Fetty............... 764 Landers, St. Louis-San Francisco Ry. Co. v..... 695 Lange v. United States......................... 708 Langstaff v. Lucas, Collector...;.............. 721 Lapique v. District Court...................... 635 Larabee Flour Mills Corp. v. First National Bank of Henryetta................................. 727 Larkin v. New York............................. 639 Larsen v. Texas................................ 776 Laskolin v. United States...................... 735 Lau v. United States........................... 739 Laveirge v. Davis............................. 714 Leach & Co. v. Peirson......................... 676 Leather, Ex parte............................... 661 Le Blanc, Watson, Trustee, v................... 724 Lee v. United States........................... 736 Lee, United States v........................... 686 Leggett & Co., Five Hundred Cases of Tomatoes v.. 761 Lehigh Valley R. R. Co. v. Bissett............. 738 Lehigh Valley R. R. Co. v. Steam Tug Cutchoque.. 703 Leitch, Chesapeake & Ohio Ry. Co. v............ 678 Lemieux v. United States....................... 749 Lentz, McGarry v............................... 716 XXIV TABLE OF CASES REPORTED. Page. Lewellyn, Collector, v. Electric Reduction Co.... 676 Ley & Co. v. United States....................... 386 Liberty National Bank v. McIntosh, Comptroller of Currency...................................... 783 Liberty Warehouse Co. v. Grannis.................. 70 Liggett & Myers Tobacco Co. v. United States..... 675 Linstead, Executrix, v. Chesapeake & Ohio Ry. Co... 690 Livingston v. United States...................... 648 Loi Hoa, Nagle, Commissioner, v.................. 682 Long, Bogigian v................................. 746 Long v. Louisiana................................ 653 Lopez v. Gonzalez............................... 727 Lorillard Co., Beech-Nut Packing Co. v............629 Los Angeles, County of, Marblehead Land Co. v.... 646 Los Angeles & Salt Lake R. R. Co., United States v.. 299 Lothrop v. Oregon-Washington R. R. & Nav. Co.... 742 Lothrop v. Southern Pacific Co................... 742 Lothrop v. Spokane, Portland & Seattle Ry. Co....742 Louisiana, Breaux v.............................. 645 Louisiana, Dunn v................................ 656 Louisiana, Harvey v.............................. 635 Louisiana, Long v................................ 653 Louisiana & Western R. R. Co. v. Gardiner........ 280 Louisiana Western R. R. Co., Ex parte............ 669 Louisville & Nashville R. R. Co. v. Hall......... 653 Louisville &.Nashville R. R. Co. v. United States.... 321 Lucas, Collector, Langstaff v................... 721 Lucey Manufacturing Corp. v. Morlan.............. 744 Luckenbach S. S. Co., Broderick & Bascom Rope Co. v........................................ 741 Luckenbach S. S. Co. v. Union Oil Co............. 741 Luechtefeld, Missouri ex rel., v. Kiel........... 659 Lutz, Ohio ex rel. Allen v....:.................. 654 Lyon Brothers Co., Kunihiro v.................... 723 Macken v. City of Waterbury...................... 646 Maguire & Co. v. United States.................... 67 TABLE OF CASES REPORTED. XXV Page. Maison Dorin Societe Anonyme v. Arnold..... 766, 767 Maison Dorin Societe Anonyme, Ex parte........ 673 Malleable Iron Range Co., Ex parte............ 661 Malleable Iron Range Co. v. United States.... 674, 688 Mallory S. S. Co., Garfield, Receiver, v............ 703 Mammoth Oil Co. v. United States.............. 686 Maniglia v. Commander of the S. S. Giuseppe Verdi......................................... 779 Mappin, Administratrix, Atchison, Topeka & Santa Fe Ry. Co. v................................ 729 Marblehead Land Co. v. County of Los Angeles... 646 Margay Oil Corp. v. Applegate................. 666 Margulies, United States ex rel., v. McCarl, Comptroller General................................ 696 Marsh, Southern Industrial Institute v........ 747 Marshall, Red Ball Transit Co. v.............. 782 Martin, Coppard, Trustee, v................... 753 Martine v. Kozer.............................. 651 Mason v. Routzahn, Collector.................. 687 Massachusetts, Celluloid Co. v................ 723, 778 Mathieu, Moore & Co. v......................... 733 Mattox v. United States....................... 769 Maul v. United States......................... 684 Maumee Valley Electric Co., City of Toledo v... 717 McCarl, Comptroller General, United States ex rel. Margulies v................................. 696 McCaul Co., United States ex rel., v. Mellon, Secretary of Treasury............................. 654 McClelland v. Highway Construction Co......... 765 McDowell, Executrix, v. Heiner, Collector..... 759 McFarland, Davis v. . 754 McFarland, Georgetown National Bank v.......... 568 McFarland, United States v...................... 688 McGarry v. Lentz.............................. 716 McGrain v. Daugherty.......................... 135 McGrew Coal Co. v. Mellon..................... 752 McGuire v. Railroad Labor Board............ 770 XXVI TABLE OF CASES REPORTED. Page. McGuire v. United States........................ 95 Mcllhenny Co., Trappey v...................... 699 McInnes, Receiver, v. American Surety Co........ 707 McIntosh, Comptroller of Currency, v. Jackson... 697 McIntosh, Comptroller of Currency, Liberty National Bank v......................................... 783 McKee, Trustees, v. Rudolph.................... 710 McKinney, United States v...................... 716 McLendon v. United States...................... 729 McLouth, Ingram-Day Lumber Co. v............. 684 McMahon, United States v...................... 782 McMaster, Receivers, v. Gould.................. 677 McNeir v. Anderson, Collector...................692 Meadows v. United States....................... 702 Mebane, Receiver, v. Staten Island Ry. Co....... 659 Mechanics & Metals National Bank v. Buchanan... 715 Mellon, McGrew Coal Co. v...................... 752 Mellon, Director General, v. Arkansas Land & Lumber Co......................................... 676 Mellon, Director General, v. Bennison.......... 776 Mellon, Director General, v. Goodyear, Administrator............................................ 684 Mellon, Director General, v. Grantham.......... 707 Mellon, Director General, v. New York & New Jersey Transp. Co................................... 726 Mellon, Director General, v. Skinner........... 776 Mellon, Director General, v. Stoneham.......... 776 Mellon, Director General, v. Wilson............ 776 Mellon, Secretary of Treasury, Florida v........ 12 Mellon, Secretary of Treasury, United States ex rel. McCaul Co. v................................ 654 Menaregidis v. Curran, Commissioner............ 704 Mendez v. Bingham.............................. 745 Mercantile Trust Co. v. Wilmot Road Dist........ 676 Merchants Transp. Co., Hanover Fire Ins. Co. v.... 758 Michaux, Nobles of the Mystic Shrine v. ..I....... 690 Michigan v. Illinois........................... 637 TABLE OF CASES REPORTED. XXVlt Page. Michigan, Ruthenberg v.......................... 782 Michigan Public Utilities Comm., Chicago & North Western Ry. Co. v............................ 779 Midland Oil Co., Thigpen v...................... 658 Miller v. Board of Public Works of Los Angeles... 781 Miller v. Brown, Receivers...................... 733 Miller v. City of St. Paul...................... 728 Miller v. Oregon................................ 657 Miller, Sioux City Bridge Co. v................... 723 Miller, United States v.......................... 683 Miller, Alien Property Custodian, Kny, Executrix, v. 778 Miller & Lux, Inc., v. Railroad Comm, of Cal..... 764 Miller Lumber Co. v. Floyd...................... 672 Milton Dairy Co., Willcuts, Collector, v........ 687 Minnesota y. First National Bank of St. Paul..... 561 Minnesota, Great Northern Ry. Co. v.............. 658 Mississippi, Jones vi .. 639 Missouri ex rel. Leuchtefeld v. Kiel............ 659 Missouri ex rel. Wabash Ry. Co. v. Public Service Comm.......................................... 126 Missouri-Kansas-Texas R. R. Co. v. King......... 680 Missouri-Kansas-Texas R. R. Co. v. United States... 725 Missouri Pacific R. R. Co. v. Aeby.............. 679 Missouri Pacific R. R. Co., Hellmich, Collector, v........................................ 242, 678 Missouri Pacific R. R. Co. v. Porter............ 341 Missouri Pacific R. R. Co. v. Wellborn.......... 694 Mitchel v. Bowers. Collector.................... 759 Mitchell v. United States....................... 693 Montana v. Sunburst Refining Co................. 722 Moore, Administrator v. Baltimore & Ohio R. R. Co.................................... .:......727 Moore & Co. v. Mathieu......................... 733 Morgan’s Louisiana & Texas R. R. & S. S. Co. v. Cocke........................................ 656 Morgan’s Louisiana & Texas R. R. & S. S. Co., Ex parte.......................................... 669 XXVIII TABLE OF CASES REPORTED. Page. Morlan, Lucey Manufacturing Corp, v............. 744 Morris v. Duby.............................. 641,651 Morristown, Town of, Delaware, Lackawanna & Western R. R. Co. v........................... 686 Mosier Safe Co. v. Ely-Norris »Safe Co.......... 132 Moss v. Sherburne, Trustees..................... 710 Motter, Collector, Derby Oil Co. v.............. 762 Mueller v. Adler................................ 774 Mueller & Co., Pennsylvania R. R. Co. v........... 749 Munich Reinsurance Co. v. First Reinsurance Co. of Hartford...................................... 666 Munroe, United States v........................ 775 Muraour et Cie., Caron Corp, v.................. 729 Murphy, Trustees, v. Vellacott, Trustee......... 767 Mutzenbecher v. Ballard........................ 766 Myers, Gulf, Mobile & Northern R. R. Co. v....... 766 Myers v. Hurley Motor Co......................... 18 Myers v. International Trust Co................. 380 Myers, Keeler v668 Nagle, Commissioner, Fong Suey Chong v........... 667 Nagle, Commissioner, v. Lam Young............... 682 Nagle, Commissioner, v. Loi Hoa................. 682 Nagle, Commissioner, Seif v.................... 737 Nagle, Commissioner, Wong Hay Poy v............. 645 Nagle, Commissioner, Yip Wah v. 667 Nashville, City of, Dad’s Auto Accessories, Inc. v... 770 Nashville, City of, Street Piano Co. v.............. 775 National Bank of Commerce of Norfolk, Lamborn v. 688 National Bank of Commerce in St. Louis v. Pierce.. 730 National Bond & Investment Co., Gibson v......... 668 National Electric Ticket Register Co. v. Automatic Ticket Register Co............................ 764 Nations, United States v........................ 735 Neeley, Ford Hydro-Electric Co. v............... 723 Nelson v. California............................ 641 Nelson v. Potts................................. 652 TABLE OF CASES REPORTED. XXIX Page. Nelson v. Walrod................................. 745 Netherlands American Steam Nav. Co., Wagner v.. 725 Neuberger, United States v................... 685,777 New England Power Co., Dickinson v............... 748 New State Land Co. v. Kelley..................... 720 New York v. Illinois......................... 640, 642 New York, Larkin v. .y....;. 639 New York, City of, Ex parte....................... 650 New York & Albany Lighterage Co., Bowers v.. ... 346 New York & Cuba Mail S. S. Co. v. United States.. 719 New York & New Jersey Transp. Co., Mellon, Direc- tor General, v .............................1.. 726 New York Central Securities Corp. v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co......... 664 New York Life Ins. Co. v. United States...... 711, 712 New York, New Haven & Hartford R. R. Co. v. Sullivan....................................... 754 New York, Ontario & Western Ry. Co. v. United States......................................... 652 New York, Philadelphia & Norfolk R. R. Co., Allen v. 756 Nichols, Collector, Sylvester Co. v................. 760 Nixon v. Herndon................................. 536 Nobles of the Mystic Shrine v. Michaux........... 690 Noel, Collector, Parrott v....................... 754 Norfolk & Western Ry. Co., James v.............. 662 North, Hart v.................................... 637 Northern Ore Co., Sylvia Lake Co. v. 695 Northwestern Mutual Life Ins. Co. v. Wiggins..... 746 Nose v. Webb..................................... 772 Noveck, United States v.......................... 202 O’Brien, Schmolke v 646 O’Flyn, Schroeder, Trustee v. 739 Ohio, Carelli v. 710 Ohio, Tumey v.................................... 510 Ohio ex rel. Allen v. Lutz....................... 654 Oklahoma, Oklahoma Natural Gas Co. v........... 257 XXX TABLE OF CASES REPORTED. Page. Oklahoma, St. Louis-San Francisco Ry. Co. v.....77Q Oklahoma v. Texas.............................. 93 Oklahoma Coal Co. v. Atkinson.................. 773 Oklahoma Natural Gas Co. v. Oklahoma............257 Olsen & Co., Ingenohl v......................... 541 O’Neill v. United States....................... 749 Oppenheim, United States ex rel., v. Hecht..... 769 Oppenheimer, Trustee, Finance & Guaranty Co. v.. 689 Oregon, Kelley v............................... 589 Oregon, Miller v............................... 657 Oregon & California R. R. Co. v. Booth-Kelly Lumber Co......................................*.. 707 Oregon & California R. R. Co. v. Hammond........ 707 Oregon Basin Oil & Gas Co. v. Work, Secretary of Interior..................................... 660 Oregon Short Line R. R. Co. v. Gubler.......... 709 Oregon-Washington R. R. & Nav. Co., Lothrop v.... 742 Ottinger v. Bronx Gas & Electric Co............. 772 Owens v. Harris, Receiver...................... 743 Pacific Mail S. S. Co. v. Wilson............... 690 Pacific Mail S. S. Co., Wilson v.................... 686 Pacific Power & Light Co. v. Bayer............. 647 Pacific States Paper Trade Assn., Federal Trade Comm, v.....................'................. 52 Pacific-Southwest Trust & Savings Bank, Johns, Trustee, v ................................... 753 Panama R. R. Co., Grace & Co. v................ 715 Pan American Petroleum & Transport Co. v. United States...................................... 456 Pandit, United States v.......................... 759 Paradon Engineering Co. v. Electro Bleaching Co... 728 Parrott v. Noel, Collector................:.... 754 Pawling & Co. v. United States.............. 665, 705 Pearson, Administratrix, St. Louis-San Francisco Ry. Co. v....................................... 711 Peck, Trustee, Union Trust Co. v............... 777 TABLE OF CASES REPORTED. XXXI Page. Peebles v. Exchange Building Co................. 761 Peirson, Leach & Co. v.......................... 676 Pennsylvania, Di Santo v........................' 34 Pennsylvania R. R. Co., Goodbody, Receiver, v... 665 Pennsylvania R. R. Co., Konsoute v.............. 747 Pennsylvania R. R. Co. v. Mueller & Co.......... 748 Pennsylvania R. R. Co., Timken Roller Bearing Co. v......................................... 665 Pennsylvania-Detroit R. R. Co., Detroit Terminal R. R. Co. v..................................... 758 Pharr, Trustee, v. United States................ 732 Phelps v. United States......................... 678 Philadelphia & Reading Ry. Co. v. Auchenbach.... 761 Philippine Islands, Fajardo v................... 733 Philippine Sugar Estates Development Co. v. De Coster........................................ 717 Phillips, Ex parte .c.............................. 662 Phillips, Gulf Refining Co. v................... 697 Piedmont Coal Co. v. Hustead.................... 726 Pierce, National Bank of Commerce in St. Louis v.. 730 Ponder v. Lamar Life Ins. Co . ................ 703 Popham v. United States......................... 718 Porter, Missouri Pacific R. R. Co. v............... 341 Porto Rico, Arocho v............................ 760 Porto Rico, Baragano v.......................... 782 Potter v. Geraghty.............................. 773 Potts, Cunningham v............................. 652 Potts, Nelson v................................. 652 Pressed Steel Car Co. v. United States.......... 780 Prairie Oil & Gas Co., Jones, Trustees, v....... 195 Procter & Gamble Co. v. Federal Trade Comm...... 717 Procter & Gamble Co., Federal Trade Comm, v.....718 Public Service Comm., Missouri ex rel. Wabash Ry. Co. v......................................... 126 Public Utilities Comm. v. Arkansas Valley Interurban Ry. Co.................................... 770 Public Utilities Comm. v. Attleboro Steam & Electric Co............................................... 83 XXXII TABLE OF CASES REPORTED. Page. Pueblo of Santa Rosa v. Fall, Secretary of Interior...................................... 315,678 Puget Sound Power & Light Co. v. City of Seattle.. 753 Puget Sound Power & Light Co., City of Seattle v.. 752 Pulitzer Publishing Co. v. Houston Printing Co.. 694 Qualsett v. Kattenburg......................... 645 Quon Quon Poy v. Johnson, Commissioner......... 352 Railroad & Warehouse Comm. v. Duluth Street Ry. Co........................................... 625 Railroad Comm, of Cal., Miller & Lux, Inc. v....... 764 Railroad Labor Board, McGuire v................ 770 Rascoe, Federal Life Ins. Co. v................ 722 Rauch v. Duff.................................. 720 Rawleigh Co., Sparkman v....................... 782 Rayher, Trustee, United Cigar Stores Co. v........ 699 Red Ball Transit Co. v. Marshall............... 782 Red Wing Malting Co. v. Willcuts, Collector..... 763 Reese v. United States........................ 739 Reeves, Henderson Tire & Rubber Co. v........... 744 Reinecke, Collector, Wickwire v................ 687 Rellstab, Delaware, Lackawanna & Western R. R. Co. ......................................... 685 Revelle, Receiver, Chillicothe Furniture Co. v...... 741 Rhodes v. Georgia.............................. 775 Rice v. Eisner, Collector...................... 764 Richmond, City of, Stege v. 648 Richmond Screw Anchor Co. v. United States...... 679 Riggs v. United States........................ 719 Riggs v. Workman............................... 719 Ritterman, United States v.................. 261, 685 Robbins Dry Dock & Repair Co. v. Flint......... 679 Roberts v. Yegen............................... 715 Rose, Executors, American Railway Express Co. v.. 743 Rosenberg Bros. & Co., United States Shipping Board Emergency Fleet Corp, v...................... 682 TABLE OF CASES REPORTED. XXXIII Page. Rosengrant v. Havard........................... 664 Ross v. United States.......................... 735 Rossi v. United States........................ 636 Rossy v. Zeno.................................. 737 Routzahn, Collector, Mason v................... 687 Royster Guano Co., American Railway Express Co. v. 274 Rubsamin v. Schultz........................... 745 Rudolph, McKee, Trustees, v.................... i 710 Russell v. United States....................... 708 Ruthenberg v. Michigan........................ 782 Sacramento Navigation Co. v. Saiz............. 326 St. Louis-San Francisco Ry. Co., Craig v....... 714 St. Louis-San Francisco Ry. Co. v. Landers...... 695 St. Louis-San Francisco Ry. Co. v. Oklahoma..... 779 St. Louis-San Francisco Ry. Co. v. Pearson, Administratrix ...................................... 711 St. Louis & San Francisco R. R. Co. v. Spiller.. 680 St. Paul, City of, Miller v.................... 728 Saiz, Sacramento Navigation Co. v.............. 326 Salzer v. United States........................ 771 Samuel & Sons v. Second National Bank of Toledo.. 720 Sandlin, Gulf Refining Co. v...................... 697 Seyles v. Chase National Bank.................. 708 Schappi Bus Line, City of Hammond v........... 675 Schatzkin, Barnes, Trustee, v..................... 709 Scheib v. United States........................ 701 Schmolke v. O’Brien.......................... 646 Schoenhofen Brewing Co. v. Alvey-Ferguson Co.... 743 Schroeder, Trustee, v. O’Flyn.................. 739 Schultz, Rubsamin v............................ 745 Schutte v. Sutherland, Alien Property Custodian... 778 Seaboard Air Line Ry. Co. v. Florida ex rel. Burr. 691, 729 Seaboard Air Line Ry. Co. v. Inge.............. 753 Seaboard Air Line Ry. Co. v. Standard Oil Co. of N.J.......................................... 712 Seaboard Air Line Ry. Co. v. United States...... 672 42847°—27-III XXXIV TABLE OF CASES REPORTED. Page. Seaman, Bowers v................................ 346 Seattle, City of, v. Puget Sound Power & Light Co.. 752 Seattle, City of, Puget Sound Power & Light Co. v.. 753 Second National Bank of Toledo, Samuel & Sons v.. 720 Security Trust Co., Receiver, v. De Land, Receiver.. 713 Seid Man v. Johnson, Commissioner............... 775 Seif v. Nagle, Commissioner..................... 737 Seimer, James-Dickinson Farm Mortgage Co. v. 700 Selling, Wemme Co. v............................ 760 Semaphoric Indicator Co., Ex parte.............. 661 Semple & Co., United States v................... 698 Shanks, Swiss Oil Corp, v....................... 407 Shaw v. Western Assurance Co.................... 698 Shelby Iron Co., United States v.................. 571 Sherburne, Trustees, Moss v......................710 Shields v. United States....................... 583 Shown, Trustee, v. Baker........................ 733 Shukert, Executrices, v. Allen/Collector........ 545 Siff v. United States........................... 653 Simmons v. Swan................................ 675 Sinclair v. United States.............. 737, 741 Sinclair Refining Co. v. Smith.................. 725 Sioux City Bridge Co. v. Miller................. 723 Sischo v. Archer................................ 731 Skinner, Mellon, Director General, v.............. 776 Smith, Sinclair Refining Co. v725 Smith v. United States Shipping Board Emergency Fleet Corp................................... 747 Smith v. Wilson.......................... 388 Smyer v. United States................... 333 Snook, Sofge v.................................. 745 Societe Anonyme v. Arnold................... 766,767 Sofge v. Snook.................................. 745 Solomon, Buchhalter v.................... 640 South Bend Bait Co. v. Heddens’ Sons, Inc... 737 South Carolina Tax Comm., Curdts v.............. 669 South Daviess County Drainage Dist., Wabash Ry. Co. v751 TABLE OF CASES REPORTED. XXXV Page. Southern California Tel. Co., Hopkins v.. 685 Southern Industrial Institute v. Marsh... 747 Southern Pacific Co., Barnes v........... 766 Southern Pacific Co., Hartford Accident & In- demnity Co. v.......................... 207 Southern Pacific Co., Lothrop v................... 742 Southern Photo Materials Co., Eastman Kodak Co. v.................................. 359 Southern Ry Co., Taylor v................ 767 Southern Surety Co. v. United States..... 643 Sparkman v. Rawleigh Co.................. 782 Spear v. United States................. 635 Spiller, St. Louis & San Francisco R. R. Co. v...... 680 Spokane, Portland & Seattle Ry. Co., Lothrop v.... 742 Spremulli v. Curran, Commissioner........ 754 Spurway, Receiver, Wehby v.................. 1.. 722 Spurway, Receiver, Winsett v............ 722 Standard Electric Stove Co. v. Toledo, St. Louis & Western R. R........................... 711 Standard Oil Co. v. Atlantic Coast Line R. R. Co... 691 Standard Oil Co. of Ky., Atlantic Coast Line R. R. Co. v712 Standard Oil Co. of N. J., Atlantic Coast Line R. R. Co. v. 712 Standard Oil Co.' of N. J., Seaboard Air Line Ry. Co. v. 712 Standard Transp. Co. v. United States.... 732 State Bank v. Appelbaum.................. 712 State Department of Health, Brein v. 640 State Industrial Board v. Terry & Tench Co.. 639 Staten Island Ry. Co., Mebane, Receiver, v.. 659 S. S. Archimedes, Jackson v........ 1'... 679 S. S. Texas Maru, Lamborn v.............. 736 Steam Tug Cutchoque, Lehigh Valley R. R. Co. v.. 703 Steam Tug Esther M. Rendle v. United States. 730 Steel & Tube Co. v. Dingess Rum Coal Co..... 714 Steel’s Consolidated, Inc., American Security Co. v.. 752 XXXVI TABLE OF CASES REPORTED. Page. Stege v. City of Richmond....................... 648 Steger & Sons Piano Mfg. Co., Anastasopoulos v.... 769 Stenger, City and County of Denver v............. 657 Stewart v. Billington........................... 755 Stewart v. District Court....................... 755 Stoneham, Mellon, Director General, v............. 776 Stratton v. United States....................... 750 Street Piano Co. v. City of Nashville........... 775 Submarine Signal Co. v. United States........... 713 Sullivan, New York, New Haven & Hartford R. R. Co. v......................................... 754 Sullivan, United States v........................ 689 Sunburst Refining Co., Montana v................ 722 Sutherland, Alien Property Custodian, Great Northern Ry. Co. v................................... 182 Sutherland, Alien Property Custodian, Schutte v.... 778 Sutherland, Alien Property Custodian, Zimmermann v.......................................... 780 Swan, Simmons v...................._............ 675 Swiss Oil Corp. v. Shanks....................... 407 Sylvester Co. v. Nichols, Collector............. 760 Sylvia Lake Co. v. Northern Ore Co.............. 695 Tarn v. United States........................... 758 Taylor Co. v. Anderson......................... 681 Taylor v. Southern Ry. Co....................... 767 Taylor, United States v......................... 773 Tendier v. Tendier............................ 693 Terrace Park, Village of, v. Errett............. 710 Terry, Webster v709 Terry & Tench Co., State Industrial Board v....... 639 Teter v. United States......................... 706 Texas, Larsen v.. .*............................ 776 Texas, Oklahoma v................................ 93 Texas & New Orleans R. R. Co. v. Cammack......... 720 Texas Co., International-Great Northern R. R. Co. v....................................... 771 TABLE OF CASES REPORTED. xxxvil Page. Texas Maru, The, Lambom v..................... 736 Texas Pipe Line Co. v. Ware....................742 Thigpen v. Midland Oil Co..................... 658 Thompson, Drake v............................ 744 Thompson v. Vogue Co.......................... 706 Thomson v. Thomson............................ 638 Timken Roller Bearing Co. v. Pennsylvania R. R. Co. 665 Tokushige, Farrington v..................... 284, 677 Toledo, City of, v. Maumee Valley Electric Co 717 Toledo, St. Louis & Western R. R. Co. v. Allen. 688 Toledo, St. Louis & Western R. R., Standard Electric Stove Co. v................................. 711 Tooley, Executrix, v. Aetna Life Ins. Co...... 755 Touchstone, Gulf, Mobile & Northern R. R. Co. v.. 691 Toxaway Mills v. United States................ 781 Trainer v. Day............................... 740 Trappey v. Mcllhenny Co....................... 699 Trenton Potteries Co., United States v........ 392 Tubbs v. Washington...................;........732 Tucker v. Alexander, Commissioner............. 689 Tumey v. Ohio................................. 510 Tyler, Harmon v............................... 668 Tyson & Brother v. Banton..................... 418 Uihlein v. Wisconsin.......................... 642 Union Carbide & Carbon Corp., Alexander Milburn Co. v..._................................... 757 Union Oil Co., Luckenbach S. S. Co. v . \. 741 Union Pacific R. R. Co. v. Boyle.............. 741 Union Switch & Signal Co., Day v756 Union Trust Co. v. Peck, Trustee.............. 767 United Bank & Trust Co., Johns, Trustee, v........ 753 United Cigar Stores Co. v. Rayher, Trustee..... 699 United Cigar Stores Co., United States v.......... 681 United States, Ackerson v..................... 702 United States, Albrecht v....................... 1 xxxvin TABLE OF CASES REPORTED. Page. United States, Albury v......................... 706 United States, American Exchange Irving Trust Co., Executor, v................................... 751 United States, American Railway Express Co. v... 750 United States v. American Refining Co........... 777 United States, American Refining Co. v............. 777 United States, Amos v........................... 713 United States, Anderson v ....................... 700 United States v. Arkell & Douglas, Inc...........735 United States, Armstrong v.....766 United States v. Arnold, Administrator.......... 683 United States, Ashbaugh v....................... 728 United States, Auburn & Alton Coal Co. v........ 714 United States, Bailey v.......................... 751 United States, Baker, Receiver, v................. 732 United States, Banta, v.......................... 715 United States, Barnett v......................... 709 United States, Barrett Co. v.................... 227 United States, Bartoncini v....................... 636 United States v. Belridge Oil Co................ 733 United States, Belvin v.......................... 706 United States, Benham v....................... 721 United States, Betts v.......................... 762 United States, Bilodeau v........................ 737 United States, Bliss Co. v...................... 677 United States v. Blount, Administratrix......... 769 United States, Bovard v ......................... 701 United States, Brian v............. J............. 643 United States v. Burton Coal Co................. 337 United States, Byars v........ 28 United States, Campbell v....................... 722 United States, Cantrell v....................... 768 United States, Carroll v ......................... 763 United States, Carter v.......................... 701 United States, Cate v........................... 742 United States, Charleston Mining Co. v ........... 220 United States, Clark v.......................... 774 TABLE OF CASES REPORTED. XXXIX Page. United States, Colonial Transp. Co. v............ 727 United States, Contreras v...................... 673 United States, Converse vi...................... 708 United States, Copeland v....................... 708 United States, Cotterman v....................... 732 United States v. Curtis & Company Mfg. Co........ 771 United States, Cusmano v......................... 773 United States, Davis Sewing Machine Co. v.........324 United States, De Forest Radio Tel. Co. v........ 236 United States, Dickinson, Receiver, v............ 663 United States, D’Olier v.............. X.......^. 700 United States, Duckett & Co. v................... 680 United States, Dunlap v.......................... 764 United States, Edenfield v....................... 660 United States, Ferguson, Executor, v............. 660 United States, Ford v............................ 593 United States, Galveston Dry Dock & Const. Co. v.. 725 United States, Gay v............................. 705 United States, Gillespie v....................... 730 United States, Goodyear Tire & Rubber Co. v.. 100, 692 United States, Goldstein v..................... i. 750 United States, Gracie v.......................... 748 United States, Guggenheim v. 704 United States, Hart v............................ 694 United States, Hawkins v......................... 740 United States, Hicks v......................... 1 736 United States, Hood v........................... 765 United States, Horowitz v........................ 697 United States, Hoxie v.......................... 755 United States, Hunnicutt v...i.................. 768 United States v. Huron Navigation Co............. 777 United States, Huron Navigation Corp, v.......... 778 United States, Illinois Central R. R. Co. v:... 710, 752 United States, Industrial Engineering Co. v...... 659 United States, Jacob Reed’s Sons v............... 200 United States, Jenkins v......................... 649 United States, Jezewski v........................ 735 xl TABLE OF CASES REPORTED. Page. United States, Jones v............................ 701 United States, Kercheval v...................... 685 United States, Kemp v............................. 703 United States, Kessler & Co. v.................... 700 United States, Knickerbocker Merchandising Co. v.. 729 United States, Kornhauser v....................... 692 United States, Lange v.......................... 708 United States, Laskolin v.......... 735 United States, Lau v.............................. 739 United States v. Lee.............................. 686 United States, Lee v ............................ 736 United States, Lemieux v........................ 749 United States, Ley & Co. v........................ 386 United States, Liggett & Myers Tobacco Co. v..... 675 United States, Livingston v...................... 648 United States v. Los Angeles & Salt Lake R. R. Co.. 299 United States, Louisville & Nashville R. R. Co. v... 321 United States, Maguire & Co. v.................. 67 United States, Malleable Iron Range Co. v... 674, 688 United States, Mammoth Oil Co. v................. 686 United States, Mattox v....................... 769 United States, Maul v...'..................... 684 United States v. McFarland.................... 688 United States, McGuire v...................... 95 United States v. McKinney..................... 716 United States, McLendon v..................... 729 United States v. McMahon.......................... 782 United States, Meadows v...................... 702 United States v. Miller....................... 683 United States, Missouri-Kansas-Texas R. R. Co. v.. 725 United States, Mitchell v..................... 693 United States v. Munroe.......................... 775 United States v. Nations...................... 735 United States v. Neuberger.................... 685,777 United States, New York & Cuba Mail S. S. Co. v.. 719 United States, New York Life Ins. Co. v... 711, 712 TABLE OF CASES REPORTED XLI Page. United States, New York, Ontario & Western Ry. Co. v......................................... 652 United States v. Noveck........................ 202 United States, O’Neill v....................... 749 United States, Pan American Petroleum & Transport Co. v.........*............................ 456 United States v Pandit......................... 759 United States, Pawling & Co. v............... 665, 705 United States, Pharr, Trustee, v............... 732 United States, Phelps v.......................... 678 United States, Popham v........................ 718 United States, Pressed Steel Car Co. v......... 780 United States, Reese v....................... 739 United States, Richmond Screw Anchor Co. v....... 679 United States, Riggs v......................... 719 United States v. Ritterman................. 261,685 United States, Ross v.......................... 735 United States, Rossi v......................... 636 United States, Russell v......................... 708 United States, Salzer v.......................... 771 United States, Scheib v........................ 701 United States, Seaboard Air Line Ry. v......... 672 United States v. Semple & Co................... 698 United States v. Shelby Iron Co................ 571 United States, Shields v....................... 583 United States, Siff v............................ 653 United States, Sinclair v..................... 737, 741 United States, Smyer v........... \. 333 United States, Southern Surety Co. v........... 643 United States, Spear v...................... 635 United States, Standard Transp. Co. v.......... 732 United States, Steam Tug Esther M. Rendle v...... 730 United States, Stratton v...................... 750 United States, Submarine Signal Co. v.......... 713 United States v. Sullivan...................... 689 United States, Tarn v................ i758 United States v. Taylor...................... 773 XLII TABLE OF CASES REPORTED. Page. United States, Teter v........................... 706 United States, Toxaway Mills v................. 781 United States v. Trenton Poteries Co............392 United States v. United Cigar Stores Co........ 681 United States, United States Fidelity & Guaranty Co. v..:......................... ...726 United States, Utah Construction Co. v............ 745 United States, Virginian Ry. Co. v................ 718 United States, Walker v......................... 726 United States, Washer v......................... 705 United States, Waxman v........................ 716 United States, Webb v.......................... 718 United States, Weeke v..................... 662,751 United States, Weinstein v. 699 United States, Whalen v749 United States, White Oak Coal Co. v............ 756 United States, Wichita Falls v................. 750 United States v. Wisconsin..................... 769 United States, Wong Tai v....................... 77 United States, Wosinski v..................... 735 United States, Zeidler v.......................... 724 United States ex rel. Checa v. Williams........ 724 United States ex rel. Claussen v. Curran, Commissioner ......................................... 688 United States ex rel. Cosmano v. Davis, Secretary of Labor........................................ 738 United States ex rel. Cripple Creek & Colorado Springs R. R. Co. v. Interstate Commerce Comm.. 706 United States ex rel. Givens v. Work, Secretary of Interior..................................... 711 United States ex rel. Margulies v. McCarl, Comptroller General ;............................. 696 United States ex rel. McCaul Co. v. Mellon, Secretary of Treasury..................................... 654 United States ex rel. Oppenheim v. Hecht........ 769 United States ex rel. Vajtauer v. Commissioner of Immigration................................. 103 TABLE of cases reported. xtiii Page. United States, substituted for Bergman, v. A Cargo of 3,253 Tons of Coal.......................... 696 United States, substituted for Miller, v. A Cargo of 3,248 Tons of Coal........................... 696 United States Fidelity & Guaranty Co. v. United States......................................... 726 United States Lloyds, Chicago Steamship Lines v.. 698 United States Shipping Board Emergency Fleet Corp. v. California Wine Assn........................ 683 United States Shipping Board Emergency Fleet Corp., Catz American Shipping Co. v.......... 143 United States Shipping Board Emergency Fleet Corp. v. Jones & Co.................................. 683 United States Shipping Board Emergency Fleet Corp. v. Rosenberg Bros. & Co...................... 682 United States Shipping Board Emergency Fleet Corp., Smith v............................... 747 United States Shipping Board Emergency Fleet Corp. v. Western Union Tel. Co..................... 681 United States Steel Products Co. v. Adams....... 680 United Theatre Ticket Offices v. Banton........ 418 United Verde Copper Co. v. Jordan.............. 734 United Verde-Extension Mining Co. v. Jordan..... 734 Universal Rim Co. v. Firestone Tire & Rubber Co.. 711 Utah v. Work, Secretary of Interior............ 649 Utah Construction Co. v. United States......... 745 Vajtauer, United States ex rel., v. Commissioner of Immigration.................................. 103 Vellacott, Trustee, Murphy, Trustees, v........... 767 Vogue Co., Thompson v........... .'1............ 706 Von Zedwitz, Kentucky ex rel. Daugherty v....... 735 Victor Talking Machine Co. v. Brunswick-Balke Collender Co................................. 670 Virginian Ry. Co. v. United States............. 718 Wabash Ry. Co., Missouri ex rel., v. Public Service Comm........................................... 126 XLIV TABLE OF CASES REPORTED. Page. Wabash Ry. Co. v. South Daviess County Drainage Dist........................................ 751 Waggoner Estate v. Wichita County............. 113 Wagner v. Netherlands American Steam Nav. Co... 725 Walker v. United States....................... 726 Walrod, Nelson v.;............................ 745 Walsh, Town of Flagstaff v.................... 695 Ware, Texas Pipe Line Co. v..................... 742 Washer v. United States....................... 705 Washington, Tubbs v........................... 732 Washington ex rel. Edelstein v. Huneke........ 747 Waterbury, City of, Macken v.................... 646 Watkins, Kelly v . 671 Watson, Trustee, v. Le Blanc................ 724 Waxman v. United States....................... 716 Weaver, Inc., American Chain Co. v........... 699 Webb, Nose v.................................. 772 Webb v. United States......................... 718 Webster v. Terry.............................. 709 Weeke v. United States................... 662, 751 Wehby v. Spurway, Receiver.................... 722 Weichers v. Weichers.......................... 762 Weinstein v. United States................ 699 Weksler v. Collins............................ 779 Wellborn, Missouri Pacific R. R. Co. v........ 694 Wemme Co. v. Selling.......................... 760 West-Nelson Mfg. Co., Donham v................ 657 Western Assurance Co., Shaw v........ 698 Western Union Tel. Co., United States Shipping Board Emergency Fleet Corp, v............... 681 Whalen v. United States.................... ... 749 White v. Croker............................... 715 White Oak Coal Co. v. United States........... 756 Whitman, Ex parte............................. 644 Whitmann, Ex parte............................ 654 Whitney Co., Johnson v........................ 734 Wichita County, Waggoner Estate v............... 113 TABLE OF CASES REPORTED. XLV Page. Wichita Falls v. United States.................. 750 Wickwire v. Reinecke, Collector................. 687 Wiggins, Northwestern Mutual Life Ins. Co. v....746 Willcuts, Collector, v. Milton Dairy Co......... 687 Willcuts, Collector, Red Wing Malting Co. v..... 763 Williams v. Chicago & Northwestern Ry. Co....... 670 Williams, Francis v............................. 693 Williams v. General Outdoor Advertising Co...... 721 Williams, United States ex rel. Checa v......... 724 Wilmot Road Dist., Mercantile Trust Co. v....... 676 Wilson, Mellon, Director General, v............. 776 Wilson v. Pacific Mail S. S. Co................. 686 Wilson, Pacific Mail S. S. Co. v.................690 Wilson, Smith v. 388 Wimberley, Administrator, Atlantic Coast Line R. R. Co. v.:....................................... 673 Winsett v. Spurway, Receiver.................... 722 Wisconsin v. Illinois....................... 642, 644 Wisconsin, Uihlein v........................ 642 Wisconsin, United States v....................... 769 Wixon, Commissioner, Chin Wey v................. 650 Wollard, Administrator, Conley v................ 674 Wong Hay Poy v. Nagle, Commissioner............. 645 Wong Tai v. United States....................... 77 Woodmen of the World, Henderson County v........ 721 Work, Secretary of Interior, Oregon Basin Oil & Gas Co. v..................................... 660 Work, Secretary of Interior, United States, ex rel. Givens v...................................... 711 Work, Secretary of Interior, Utah v............. 649 Workman, Riggs v................................ 719 Wosinski v. United States....................... 735 Yaselli v. Goff................................. 677 Yegen, Roberts v............................... 715 Yip Wah v. Nagle, Commissioner.................. 667 XLvi TABLE OF CASES REPORTED. Page. Zeidler v. United States...................... 724 Zeno, Rossy v................................. 737 Zimmermann, Deutsche Bank of Berlin v......... 780 Zimmermann v. Sutherland, Alien Property Cus- todian .................................... 780 TABLE OF CASES CITED IN OPINIONS. Page. Aaron v. Ward, 203 N. Y. 351 430 Abbott v. Anderson, 265 Ill. 285 382 Abbott Co. v. United States, 242 Fed. 751 6,9 Ada, The, 250 Fed. 194 218 Adams v. New York, 192 U. S. 585 99,646 Adams v. Tanner, 244 U. S. 590 443 Adams Exp. Co. v. Cron-inger, 226 U. S. 491 283,346 Addyston Co. v. United States, 85 Fed. 271; 175 U. S. 211 398 Adkins v. Hospital, 261 U. S. 525 437,446,657 Adler, In re, 103 Fed. 444 383 Aetna Co. v. Dunken, 266 U. S. 389 553 Aetna Ind. Co. v. Auto-Trac. Co., 147 Fed. 95 499 Agnello v. United States, 269 U. S. 20 30,99 Alaska Coal Co. v. Lane, 250 U. S. 549 661 Alaska S. S. Co. v. United States, 259 Fed. 713; 253 U. S. 113 345 Albert Dumois, The, 177 U. S. 240 214 Albrecht v. United States, 273 U. S. 1 207,606 Alfrey v. Colbert, 168 Fed. 231 23 Alice State Bank v. Houston Co., 247 U. S. 240 66 Alpha Cement Co. v. Massachusetts, 268 U. S. 203 43 Page. Alvey v. Reed, 115 Ind. 148 23 Amer. Banana Co. v. United Fruit Co., 213 U. S. 347 621 Amer. Column Co. v. United States, 257 U. S. 377 397 Amer. Mfg. Co. v. St. Louis, 250 U. S. 459 92 Amer. Ry. Exp. Co. v. Kentucky, 190 Ky. 636 271 Amer. Ry. Exp. Co. v. Kentucky, 273 U. S. 269 280 Amer. Ry. Exp; Co. v. Levee, 263 U. S. 19 283 Amer. Tobacco Co. v. United States, 221 U. S. 106 396, 398,399,400 Amer. Washboard Co. v. Saginaw Mfg. Co., 103 Fed. 281 133 Ames v. Kansas, 111 U. S. 449 174 Amos v. United States, 255 U. S. 313 30,99 Anderson v. Dunn, 6 Wheat. 204 168,173 Anderson v. United States, 260 Fed. 557 81 Anvil Co. v. Humble, 153 U. S. 540 375 Ard v. State, 114 Ind. 542 10 Armour Co. v. United States, 209 U. S. 56 82 Armour & Co. v. North Dakota, 240 U. S. 510 40 Armstrong v. Norris, 247 Fed. 253 382 Arrowsmith v. Harmoning, 118 U. S. 194 273 Ashby v. White, 2 Ld. Raym. 938; 3 Id. 320 540 XLVII XLVIII TABLE OF CASES CITED. Page. Askren v. Cont. Oil Co., 252 U. 8. 444 * 43 Aspen Co. v. Billings, 150 U. 8. 31 657 Atchison &c. Ry. v. Harold, 241 U. 8. 371 283 Atchison &c. Ry. v. Nichols, 264 U. S. 348 126 Atl. Coast Line R. R. v. Georgia, 234 U. 8. 280 40 Attleboro Co. v. Narragansett Co., 295 Fed. 895 85 Ayers, In re, 123 U. 8. 443 18 Bailey v. United States, 5 F. (2d) 437 602 Bain, Ex parte, 121 U. 8.1 8,602 Baker v. Cureton, 49 Okla. 15 198 Ballmann v. Fagin, 200 U. 8. 186 113 Baltic Mining Co. v. Massachusetts, 231 U. 8. 68 43 B. & O. R. R. v. Settle, 260 U. S. 166 43 B. & O. R. R. v. United States, 261 U. S. 385 202 B. &. O. R. R. v. United States, 261 U. S. 592 202,660 Bank v. Hall, 160 Mass. 171 384 Bank v. Shackelford, 239 U. S. 81 223 Bank of Amer. v. Whitney Bank, 261 U. S. 171 122 Bank of Athens v. Shackleford, 239 U. S. 81 671 Bank of U. S. v. McLaughlin, Fed. Cas. No. 928 259 Barkhamsted v. Parsons, 3 Conn. 1 623 Barnett v. State, 4 Tex. App. 72 530 Barnsdall v. Bradford Co., 225 Pa. St. 338 119 Barr v. Craig, 2 Dall. 151 24 Barrett v. Van Pelt, 268 U. S. 85 672 Barron v. Baltimore, 7 Pet. 243 641 Barrows v. Farnum’s Lines, 254 Mass. 240 50,51 Bartell v. United States, 227 U. S. 427 81 Page. Bartels v. Iowa, 262 U. S'. 404 299 Bartlett v. Okla. Oil Co., 218 Fed. 380 23 Bartlett v. Smith, 11 M. & W. 483 605 Bates Co. v. United States, 58 Ct. Cis. 392 387 Beall v. New Mexico, 16 Wall. 535 640 Bedding Co. v. United States, 266 U. S. 491 202 Beechley v. Mulville, 102 Iowa 602 400 Bell v. Bell, 181 U. S. 175 359 Bell’s Gap R. R. v. Penna., 134 U. S. 232 669 Benefactor, The, 103 U. S. 239 214 Bennett v. State, 4 Tex. App. 72 527 Benson v. Henkel, 198 U. 8.1 621 Berry v. United States, 259 Fed. 203 206 Bertenshaw, In re, 157 Fed. 363 382 Bilby v. Stewart, 246 U. S. 255 648 Bills of Lading, In re, 64 I. C. C. 347 345 Bilokumsky v. Tod, 263 U. S. 149 111,112,649,651,655 Bishops’ Case, 12 St. Trials 331 623 Blair v. United States, 250 U. S. 273 158 Blitz v. United States, 153 U. S. 308 405 Block v. Hirsh, 256 U. S'. 135 437,452 Blum, In re, 9 Mise. 571 606 Board of Trade v. United States, 246 U. S. 231 395,401 Bodkin v. Edwards, 255 U. S. 221 223 671 Booth v. Illinois, 184 U. S. 425 273,453 Bonner v. Gorman, 213 U. S. 86 273 Bonham’s Case, 8 Coke 118a 524 Bordentown, The, 40 Fed. 682 330 TABLE OF CASES CITED. XLIX Paga Boston, Petitioner, 223 Mass. 36 381 Boston v. Baldwin, 139 Mass. 315 534 Boston R. R. v. Cate, 254 Mass. 248 • 50 Boston R. R. v. Hart, 254 Mass. 253 50 Boston Store v. Amen. Graph. Co. 246 U. S. 8 401 Bourgogne, The, 210 U. S. 95 214,215 Bowman v. Cont. Oil Co., 256 U. S. 642 43,413 Boyd v. United States, 116 U. S. 616 32 Bramble v. Calmer, 78 Fed. 497 328 Brass v. Stoeser, 153 U. S. 391 434,435 Brede v. Powers, 263 U. S. 4 4 Brewer Oil Co. v. United States, 260 U. S. 77 223,671 Brodie v. Cardiff Corp., [1919] A. C. 337 329 Bromberg v. Self, 16 Ala. App. 627 385 Brown, In re, 62 Kan. 648 606 Brown v. Alton Co., 222 U. S. 325 657 Brown v. Elliott, 225 U. S. 392 622 Brown v. McCune, 5 Sandf. 224 22 Brown v. United States, 257 Fed. 703 6,8 Brown v. Walker, 161 U. S. 591 17,113 Brown Co. v. Feldman, 256 U. S. 170 437,452 Brown Co. v. Kentucky, 217 U. S. 563 412 Buchanan v. Warley, 245 U. S. 60 541,668 Buck v. Kuykendall, 267 U. S. 307 51 Bucklin v. United States, 159 U. S. 682 587 Budd v. New York, 143 U. S. 517 434,435 Buder, Ex parte, 271 U. S. 461 390,652 42847°—27——iv Page. Bulwer’s Case, 7 Co. 2 b. 3 b. 623 Burdeau v. McDowell, 256 U. S. 465 99 Burford, Ex parte, 3 Cr. 448 5 Burnham v. Morrisey, 14 Gray, 226 165 Burrill v. Stevens, 73 Me. 395 124 Burton v. United States, 202 U. S. 344 12, 621 Bush Co. v. Maloy, 267 U. S. 317 51 Butler v. Boston S. S. Co., 130U. S. 527 214,215 Buttner v. Adams, 236 Fed. 105 123 Cabin Mining Co. v. Hall, 53 Okla. 760 198 Cade v. Daly, [1910] 1 Ir. Ch. 306 400 Cal. Reduc. Co. v. Sanitary Works, 199 U. S. 306 528 Camp v. Gress, 250 U. S. 308 122 Campbell v. Haverhill, 155 U. S. 610 284 Capital Bank v. Nat. Bank, 172 U. S. 425 666 Carey v. State, 70 Oh. St. 121 534 Carmen v. Fox Corp., 269 Fed. 928 26 Carney v. United States, 295 Fed. 606 8 Carolina Glass Co. v. Mur- ray, 240 U. S. 305 116 Carrollton v. Bazzette, 159 Ill. 284 429 Carter v. Glass, 44 Mich. 154 124 Carter v. Roberts, 177 U. S. 496 657 Cartersville v. Lyon, 69 Ga. 577 530 Cau v. Tex. & Pac. Ry., 194 U. S. 427 343 Causey v. United States, 240 U. S. 399 ’ 506,508, 510 Cecil v. Green, 161 Ill. 265 449 Cement Assn. v. United States, 268 U. S. 588 400 Central Co. v. Cushman, 143 Mass. 353 400 L TABLE OF CASES CITED. Page. Central Co. v. South Dakota, 226 U. S. 157 453 Central Coal Co. v. Hartman, 111 Fed. 96 376 Central Trust Co. v. Garvan, 254 U. S. 554 191,194 Central Trust Co. v. Lueders, 239 U. S. 11 667 Chaloner v. Sherman, 242 U. S. 455 122 Chamberlain v. United States, 270 U. S. 347 653 Champlain Co. v. Brattleboro, 260 U. S. 366 92 Chapman, In re, 166 U. S. 661 167,168,171,176,178 Chapman v. Scott, 10 F. (2d) 690 593 Chappell Co. v. Sulphur Co., 172 U. S. 474 669 Charleston Co. v. United States, 273 U. S. 320 671 Charleston R. R. v. Varnville Co., 237 U. S. 597 346 Chastleton Corp. v. Sinclair, 264 U. S. 543 437,452 Chattanooga Fdry. v. Atlanta, 203 U. S. 390 284 Ches. & O. Ry. v. Thompson Co., 270 U. S. 416 672 Ches. & Pot. Tel. Co. v. Manning, 186 U. S. 238 430 Chicago v. Greer, 9 Wall. 726 499 Chicago &c. R. R. v. Coleman, 18 Ill. 297 500 Chicago &c. Ry. v. Arkansas, 219 U. S. 453 40 Chicago &c. Ry. v. Brewsher, 6 F. (2d) 947 284 Chicago &c. Ry. v. Coogan, 271 U. S. 472 673 Chicago Junction Case, 264 U. S. 258 312 Chicago June. Ry. v. King, 222 U. S. 222 223, 671 Chicago T. T. R. R. v. Vandenberg, 164 Ind. 470 125 Chin Yow v. United States, 208 U. S. 8 106, 358,649,651,655 Christian v. United States, 8 F. (2d) 732 10 Page. Christie v. Durden, 205 Ala. 571 25 Church v. Swetland, 243 Fed. 289 124 Citizens Bank v. Durr, 257 U. S. 99 • 413 City Council v. Pepper, 1 Rich. 364 529 Civilta, The, 103 U. S. 699 330 Claasen, In re, 140 U. S. 200 534 Claassen v. United States, 142 U. S. 140 402 Clark v. Lamb, 2 Allen 396 529 Clark v. Nash, 198 U. S. 361 453 Clark v. Willett, 35 Cal. 534 319 Clayton v. Tibbens, 298 Fed. 18; 288 Fed. 393 199 Cleave v. Jones, 7 Exch. 421 605 Clifford v. Brandon, 2 Camp. 358 442 Clifford v. Dryden, 31 Wash. 545 593 Clifton v. United States, 4 How. 242 402 Coal Co. v. Pub. Ser. Comm., 84 W. Va. 662 86 Coastwise, The, 230 Fed. 505; 233 Fed. 1 331 Cobbey v. Buchanan, 48 Neb. 391 23 Coe, In re, 183 Fed. 745 382,383 Cohens v. Virginia, 6 Wheat. 264 433 Colcord v. Young, 31 Fla. 594 534 College Point Co. v. United States, 267 U. S. 12 201,235,236 Collins v. Miller, 252 U. S. 364 654 Collins v. Texas, 223 U. S. 288 417 Collister v. Hayman, 183 N. Y. 250 441 Colorado v. United States, 271 U. S. 153 50 Colquhoun v. Brooks, 21 Q. B. D. 52 611,612 Columbia, The, 73 Fed. 226 330 332 Columbia Co. v. Miller, 281 Fed. 289 193 Commrs. v. Lytle, 3 Oh. 289 530 TABLE OF CASES CITED. LI Page. Commonwealth v. Bow, 177 Mass. 347 442 Commonwealth v. Emery, 11 Cush. 406 530 Commonwealth v. Gillespie, 7 S. & R. 469 621 Commonwealth v. Hayden, 163 Mass. 453 157 Commonwealth v. Johnson, 5 S. & R. 195 525 Commonwealth v. Kenny, 12 Mete. 235 112 Commonwealth v. Macloon, 101 Mass. 1 621 Commonwealth v. McLane, 4 Gray 427 529 Commonwealth v. O’Brien, 12 Cush. 84 443 Commonwealth v. Potter, 254 Mass. 520 50 Commonwealth v. Ramunno, 219 Pa. St. 204 593 Commonwealth v. Reed, 1 Gray 472 530 Commonwealth v. Rubin, 165 Mass. 453 98 Commonwealth v. Ryan, 5 Mass. 90 530 Commonwealth v. Smith, 11 Allen 243 621 Cone v. Forest, 126 Mass. 97 99 Connors v. United States, 158 U. S. 408 82 Consol. Turnpike Co. v. Norfolk &c. Ry., 228 U. S. 326 638 Com Ref. Co. v. Eddy, 249 U. S. 42? 40 Corwein v. Hames, 11 Johns. 76 529 Cotting v. Kansas City, 183 U. S. 79 434 Coulter v. L. & N. R. R., 196 U. S. 599 • 413 Councilmen v. Bank, 120 Fed. 165 259 Covington Co. v. Kentucky, 154 U. S. 204 90 Cox v. Hart, 260 U. S. 427 192 Craft v. McConoughy, 79 Ill. 346 400 Craig v, Hecht, 263 U. S. 255 645 Page. Craig v. Renaker, 201 Ky. 576 408 Crane v. Johnson, 242 U. S. 339 417 Crawford v. Burke, 195 U. S. 176 124 Crawford v. Neal, 144 U. S. 585 671 Cream of Wheat Co. v. Grand Forks Co, 253 U. S. 325 413 Crescent Oil Co. v. Mississippi, 257 U. S. 129 40 Crew Levick Co. v. Pennsylvania, 245 U. S. 292 43 Crocker v. United States, 240 U. S. 74 500 Crumpton v. United States, 138 U. S. 361 375 Cuebas v. Cuebas, 223 U. S. 376 359 Cumberland Co. v. De Witt, 237 U. S. 447 383 Cummings v. Chicago, 188 U. S. 410 17 Curlee Co. v. Hamm, 160 Ark. 483 382 Cuyahoga Co. v. Nor. Realty Co, 244 U. S. 300 648 Dahnke-Walker Co. v. Bondurant, 257 U. S. 282 64 Dansereau, Ex parte, 19 L. C. Jur. 210 166 Danville Bldg. Assn. v. Pickering, 294 Fed. 117 103 Danzer & Co. v. Gulf &c. R. R, 268 U. S. 633 656 .Datesh v. State, 20 Oh. N. P. (N. S.) 273 517 Davidson v. New Orleans, 96 U. S. 97 413 Davis v. Coblens, 174 U. S. 719 405 Davis v. Cohen Co, 268 U. S. 638 381 Davis v. Farmers Co, 262 U. S. 312 37,373 Davis v. Roper Co, 269 U. S. 158 672 Davis v. Wallace, 257 U. S. 478 116 Dawson v. Kentucky Co., 255 U. S. 288 413 LII TABLE OF CASES CITED. Page. Day v. Savage, Hobart 85 524 Dees, Ex parte, 46 Cal. App. 656 454 Del. & Hud. Co. v. United States, 266 U. S. 438 309 Denver &c. R. R. v. Denver, 250 U. S. 241 130 Des Moines Bank v. Fairweather, 263 U. S. 103 550,564 Detroit Ry. v. Paper Co., 248 U. S. 30 131 Diamond Glue Co. v. U. S. Glue Co., 187 U. S. 611 39 Dimes v. Canal, 3 H. L. C. 759 522 Di Santo v. Pennsylvania, 273 U. S. 34 50,89 Dively v. Cedar Falls, 21 Iowa 565 529 Diveny v. Elmira, 51 N. Y. 506 528 Dod v. Monger, 6 Mod. 215 99 Doe v. Davies, 10 Ad. & El. N. S. 314 605 Dorchy v. Kansas, 264 U. S. 286 131 Dowdell v. Dist. Court, 139 Fed. 444 213,216 Dowdell v. United States, 221 U. S. 325 9,606 Dozier v. Alabama, 218 U. S. 124 64 Dueber Co. v. Howard Co., 55 Fed. 851 400 Duff v. Keaton, 33 Okla. 92 199 Duluth v. R. R. Comm., 167 Minn. 311 627 Dun v. Lumbermen’s Assn., 209 U, S. 20 223,671 Dunlop v. Munroe, 7 Cr. 242 370 Dunlop v. United States, 165 U. S. 486 82 DuPont Co. v. Davis, 264 U. S. 456 349 Dushane v. Benedict, 120 U. S. 630 27 Easter day v. McCarthy, 256 Fed. 651 403 Eastman Co. v. Blackmore, 277 Fed. 694 378 Easton Co. v. Caminez, 146 App. Div. 436 385 Page. Eddings v. Boner, 1 Ind. Terr. 173 9 Eddy v. Smith, 13 Wend. 488 24 Edison Co. v. U. S. Light Co., 52 Fed. 300 259 Edison Co. v. Westinghouse, 34 Fed. 232 259 Egan v. McDonald, 246 U. S. 227 199 Eidman v. Martinez, 184 U. S. 578 350 Emmich v. United States, 298 Fed. 5 207 Emmons Coal Co. v. N. & W. Ry., 272 U. S. 709 662 Engel v. O’Malley, 219 U. S. 128 40 Erb v. Morasch, 177 U. S. 584 40 Erie R. R. v. Linnekogel, 248 Fed. 389 407 Erie R. R. v. Pub. Util. Comm., 254 U. S. 394 40,130 Erie R. R. v. Shuart, 250 U. S 465 283 Euclid v. Ambler Co., 272 U.S. 365 448,452,672 Evans v. Gore, 253 U. S. 245 522 Fairbank v. United States, 181 U. S. 283 174 Fairchild v. Hughes. 258 U. S. 126 74 Falvey v. Massing, 7 Wis. 630 166 Faneuil Bank v. Meloon, 183 Mass. 66 384 Farinelli v. United States, 297 Fed. 198 8,10 Farmers Bank v. Fed. Res. Bank, 262 U. S. 649 125 Farmers Bank v. Wilkinson, 266 U. S. 503 658 Farmers L. & T. Co. v. Denver R. Co., 126’Fed. 46 27 Farrell v. O’Brien, 199 U. S. 89 636,638,639,645, 646,647,655,656,659 Farson v. Bird, 248 U. S. 268 648 Fed. Trade Comm. v. Amer. Tobacco Co., 264 U. S. 298 174 Fed. Trade Comm. v. Beechnut Co., 257 U. S. 441 401 TABLE OF CASES CITED. LIII Page. Fed. Trade Comm. v. Paper Assn., 273 U. S. 52 400 Ficklen v. Shelby County, 145 U. S. 1 43 Fidelity Co. v. Courtney, 186 U. S. 342 499 Fidelity Co. v. Louisville, 245 U. S. 54 413 Fillippon v. Albion Co., 250 U. S. 76 586,588 Findley v. Smith, 42 W. Va. 299 522 Fine v. St. Louis Schools, 39 Mo. 166 529 Fink v. Commrs., 248 U. S. 339 199 Finn v. Brown, 142 U. S. 56 188 First Nat. Bank v. Hartford, 273 U. S. 548 563, 567,568,569,570 Flagg v. United States, 233 Fed. 481 33 Forbes, In re, 128 Fed. 137 383 Foreman v. Mariana, 43 Ark. 324 530 Ft. Smith Co. v. Arkansas, 251 U. S. 532 413 Fourth Nat. Bank. v. Mead, 216 Mass. 521 384 Francis v. McNeal, 228 U. S. 695 382,383 Fred W. Chase, The, 31 Fed. 91 330 French Republic v. Saratoga Co., 191 U. S. 427 66 Frey v. Cudahy Co., 228 Fed. 209 373 Frohwerk v. United States, 249 U. S. 204 602 Fullerton Co. v. Nor. Pac. Ry., 266 U. S. 435 656 Fulweiler v. St. Louis, 61 Mo. 479 529 Furrer v. Ferris, 145 U. S. 132 671 Gage & Co. v. Bell, 124 Fed. 371 319 Galveston &c. Ry. v. Texas, 210 U. S. 217 43 Gardner v. United States, 5 Ind. Terr. 150 606 Garfield v. N. Y. &c. R. R., 248 Mass. 502 341 Paga Garman v. United States, 34 Ct. Cis. 237 , 500 Garvan v. Marconi Co., 275 Fed. 486 193 Garvan v. Shares, 276 Fed. 206 193,194 Gavieres v. United States, 220 U. S. 338 12 Georgia v. Tenn. Copper Co., 206 U. S. 230 16 Gen. Inv. Co. v. Lake Shore Ry., 260 U. S. 261 372 Gen. Inv. Co. v. N. Y. C. R. R., 271 U. S. 228 664 Gerino. Ex parte, 143 Cal. 412 418 German Ins. Co. v. Kansas, 233 U. S. 389 434,448,452 Germany v. State, 62 Tex. Cr. Rep. 276 418 Giacolone v. United States, 13 F. (2d) 108 97 Gibson, In re, 154 Mass. 378 198 Gifford v. Wilcox, 81 Ind. App. 378 25 Gila Valley Ry. v. Hall, 232 U. S. 94 605 Giles v. Harris, 189 U. S. 475 540 Godat v. McCarthy, 283 Fed. 689 97 Goldberg v. United States, 277 Fed. 211 81 Goldman v. United States, • 245 U. S. 474 375 Goldsmith v. Koopman, 140 Fed. 616 123 Goto v. Lane, 265 U. S. 393 602,645 Gouled v. United States, 255 U. S. 298 30,32,99 Graham v. United States, 231 U. S. 474 445 Granby Co. v. Webster, 98 Fed. 604 103 Grant v. Poillon, 20 How. 162 218 Grant Co. v. Laird, 212U.S. 445 124 Grant Ship Co. v. Rohde, 257 U. S. 469 665 Gray v. Lessington, 2 Bosw. 257 25 LIV TABLE OF CASES CITED. Page. Gray v. United States, 14 F. (2d) 366 6 Greeley v. Smith, Fed. Cas. No. 5748 259 Green v. C. B. & Q. Ry., 205 U. S. 530 373 Green v. Frazier, 253 U. S. 233 453 Green v. Menominee, 233 U. S. 558 321 Greene v. L. & I. R. R., 244 U. S. 499 413,670 Gregory v. Railroad, 4 Oh. St. 675 522 Griffith v. Connecticut, 218 U. S. 563 452 Grossman, Ex parte, 267 U. S. 87 157 Guerrero, Ex parte, 69 Cal. 88 527 Guild v. Butler, 122 Mass. 498 . 385 Gulf &c. Ry. v. Dennis, 224 U.S. 503 131 Gulf &c. Ry. v. Texas, 204 U. S. 403 43 Gund Brewing Co. v. United States, 204 Fed. 17 9 Haddock v. Bronaugh, 92 Okla. 197 199 Hale v. Henkel, 201 U. S. 43 113,157,158,352 Hall v. Payne, 254 U. S. 343 649 Hamilton, The, 207 U. S. 398 214,215 Hamilton Co. v. Wolf Bros., 240 U. S. 251 66 Hanley v. Kansas City Ry., 187 U. S. 617 90 Hanover Co. v. Metcalf, 240 U. S. 403 544 Harriman v. I. C. C., 211 U. S. 407 . . 174 Harrington v. Victoria Co., L. R. 3 Q. B. D. 549 500 Harris v. Moreland Co., 250 U. S. 702 667 Harris v. Thomas, 217 S. W. 1068 418 Hartmann v. L. & N. Ry., 39 Mo. App. 88 125 Hartson v. United States, 14 F. (2d) 561 81 Page. Harvey v. Pocock, 11M. & W. 740 99 Haskell v. Aluminum Co., 14 F. (2d) 864 373 Haverty Co. v. United States, 286 Fed. 985 103 Hawes v. Georgia, 258 U. S. ! 124 Hayes v. Missouri, 120 U. S. 68 669 Heard v. Pierce, 8 Cush. 338 158 Hebe Co. v. Shaw, 248 U. S. 297 40 Hebert v. Louisiana, 272 U. S. 312 646,653 Heckman v. United States, 224 U. S. 413 507,508,510 Heim v. McCall, 239 U. S. 175 417 Heisler v. Colliery Co., 260 U. S. 245 669 Heitler v. United States, 260 U. S. 438 636 Hendrick v. Maryland, 235 U. S. 610 52 Henry v. Dick, 224 U. S. 1 242 Herbert v. Balto. County, 97 Md. 639 527 Herman v. Oconto, 100 Wis. 391 500 Hesketh v. Braddock, 3 Burr. 1847 524,529 Hess & Co., In re, 136 Fed. 988 113 Hetel v. B. & O. R. R., 169 U. S. 26 379 Hetrick v. Lindsey, 265 U. S. 384 515 Hijo v. United States, 194 U. S. 315 648,650 Hill v. Wells, 6 Pick. 104 530 Hillyer v. Bennett, 3 Edw. Ch. 222 25 Hindman v. First Nat. Bank, 112 Fed. 931 123 Hines Trustees v. Martin, 268 U. S. 458 117 Hines Trustees v. United States, 263 U. S. 143 313 Hiriart v. Ballon, 9 Pet. 156 640 Hoadley v. Nor. Transp. Co., 115 Mass. 304 125 TABLE OF CASES CITED. LV Page. Hoffman v. McClelland, 264 U. S. 552 636 Holcomb v. Cornish, 8 Conn. 375 157 Holcraft v. Mellott, 57 Ind. 539 27 Hollibaugh v. Hehn, 13 Wyo. 269 606 Home Tel. Co. v. Los Angeles, 227 U. S. 278 416 Hooker v. Knapp, 225 U. S. 302 309 Hopkins v. Orr, 124 U. S. 511 640 Horner v. Hamner, 249 Fed. 134 382 Homer v. United States, 143 U. S. 207 621 Hor'owitz v. United States, 262 Fed. 48 82 Houston v. Moore, 5 Wheat. 1 346 Hoyt v. Sprague, 103 U. S. 613 198 Hubbard v. Tod, 171 U. S. 474 66, Hufifaker v. Commonwealth, 124 Ky. 115 593 Hughes v. Jones, 116 N. Y. 67 312 Hull v. Burr, 234 U. S. 712 641, 653,654,661,663,664 Hunter v. Mut. Ins. Co., 218 U. S. 573 280 Huntington v. Attrill, 146 U. S. 657 126 Hurley v. United States, 300 Fed. 75 97 Hyde v. United States, 225 U. S. 347 403,622 Hyde Park Co. v. Peck Co., 176 Ky. 513 581 Ills. Cent. R. R. v. United States, 265 U. S. 209 663 Ills. Cent. Ry. v. I. C. C., 206 U. S. 441 311 Indian Contract, 18 Op. Atty. Gen. 497 321 Int. Harvester Co. v. Kentucky, 234 U. S. 216 398 Int. Harvester Co. v. Kentucky, 234 U. S. 579 373 Page. Int. Land Co. v. Marshall, 22 Okla. 693 26 Int. Com. Comm. v. L. & N. R. R., 227 U. S. 88 312 Iowa v. Carr, 191 Fed. 257 506 Iowa Cent. Ry. v. Iowa, 160 U. 8. 389 273 Irrigation Dist. v. Farmers Canal Co., 243 U. S. 157 273 Irvine, Ex parte, 74 Fed. 954 113 I. T. S. Co. v. Essex Co., 272 U. S. 429 369 Jackson v. Gates Oil Co., 297 Fed. 549 199 Jacobson v. Massachusetts, 197 U. 8. 11 417 Jamal v. Dawood, [1916] 1 A. C. 175 341 Janvrin, Petr., 174 Mass. 311 627 Japhet v. McRae, 276 S. W. 669 118 Jelke v. United States, 255 Fed. 264 81 Jemima Co. v. Rigney, 247 Fed. 407 631 Jenkins v. Neff, 186 U. 8. 230 552 Jett Bros. Co. v. Carrollton, 252 U. S. 1 655,658 Johnson, In re, 167 U. 8. 120 9,10 Johnson v. People, 72 Colo. s 218 400 Johnson v. United States, 157 U. S.320 375 Johnston v. United States, 87 Fed. 187 6,10 Jones v. Buckell, 104 U. 8. 554 370 Jones v. Chicago &c. Ry., 80 Minn. 488 125 Jones v. O’Brien, 251 S. W. 208 119 Jones Bank v. Yates, 240 U. S. 541 552 Joplin Co. v. United States, 236 U. S. 531 602 Jordan v. United States, 299 Fed. 298 8,9 Joslyn v. Cadillac Co., 177 Fed. 863 499 Joy v. St. Louis, 138 U. S. 1 128 LVI TABLE OF CASES CITED. Page. Justices v. Fennimore, 1 N. J. L. 190 530 Kadish v. Young, 108 Ill. 170 j 341 Kane v. New Jersey, 242 U. S. 160 52 Kansas City Ry. v. Albers Co., 223. U. S. 573 552 Kansas City Ry. v. I. C. C., 252 U. S. 178 311 Kansas City Ry. v. Wolf, 261 U. S. 133 656 Keck v. United States, 172 U. S. 434 81,268 Keehn v. Stein, 72 Wis. 196 11 Keen v. Coleman, 39 Pa. St. 299 22 Keike v. United States, 217 U. S. 423 658 Keilman v. United States, 284 Fed. 845 8 Keller v. Pot. Elec. Co., 261 U. S. 428 74,628 Kelly v. United States, 250 Fed. 947 6,8 Kennedy v. Howard, 74 Ind. 87 593 Kennedy v. United States, 265 U. S. 344 207 Kentish v. Gardiner, 15 R. I. 296 522 Keogh v. C. & N. W. Ry., 260 U. S. 156 378 Ker v. Illinois, 119 U. S. 436 605 Kern River Co. v. United States, 257 U. S. 147 150 Keyser v. Farr, 105 U. S. 265 206 Keyser v. Hitz, 133 U. S. 138 188 Kidd v. Alabama, 188 U. S. 730 413 Kidd Co. v. Musselman Co., 217 U. S. 461 274 Kilbourn v. Thompson, 103 U. S. 168 170,176 Kimball v. Kimball, 174 U. S. 158 131 King v. Oliver, 2 Wash. C. C. 429 319 Kipley v. Illinois, 170 U. S. 182 663,666 Kirkham v. Wheeler-Osgood Co., 39 Wash. 415 23 Page. Klebe v. United States, 263 U. S. 188 648,650 Klinger v. Missouri, 13 Wall. 257 648 Knauer v. United States, 237 Fed. 8. 82 Knewel v. Egan, 268 U. S. 442 645 Knickerbocker S. S. Co., In re, 139 Fed. 713 113 Knowlton v. Moore, 178 U. S. 41 174 Kuhn v. Fairmont Coal Co., 215 U. S. 349 199 Kwock Jan Fat v. White, 253 U. S. 454 106,357 Lake Shore R. R. v. Ohio, 173 U. S. 285 40 Lamar v. United States, 240 U. S. 60 4 621 Lane, In re, 125 Fed. 772 383 Lane v. Santa Rosa, 249 U. S. 110 316 Lane County v. Oregon, 7 Wall. 71 17 Lau Ow Bew v. United States, 144 U. S. 47 168 Laura, The, 114 U. S. 411 157 Lease of Indian Lands, 18 Op. Atty. Gen. 235 321 Leefe, Matter of, 2 Barb. Ch. 39 531 Legman v. United States, 295 Fed.474 33 Lehigh Valley R. R. v. United States, 243 U. S. 412 309 Leisy v. Hardin, 135 U. S. 100 43 Leloup v. Mobile, 127 U. S. 640 43 Lemieux v. Young, 211 U. S. 489 274 Lemke v. Farmers Grain Co., 258 U. S. 50 64,116,390 Lester v. Smith, 83 Okla. 143 198 Levin v. United States, 5 F. (2d) 598 207 Levy Co. v. Siegel, 258 U. S. 242 452 Liberty Bank v. Bear, 265 U. S. 365 383 TABLE OF CASES CITED. LVII Page. Liberty Co. v. Grannis, 273 U. S. 70 314 Lincoln v. Orthwein, 120 Fed. 880 379 Lipke v. Lederer, 259 U. S. 557 198 Lipshitz v. United States, 269 U.S. 90 69 Liverpool Co. v. Brooklyn Terral., 251 U. S. 48 332 Locke v. United States, 7 Cr. 339 402 Loder v. Jayne, 142 Fed. 1010 400 London v. Wood, 12 Mod. 669 524 London Bank, v. Mayor, 1 C. P. D. 1 611 Los Angeles &c. R. R. v. United States, 4 F. (2d) 736; 8 F. (2d) 747 309 Louisiana v. Garfield, 211 U. S. 70 649 Louisiana v. McAdoo, 234 U. S. 627 661 Louisville &c. R. R. v. United States, 58 Ct. Cis. 622 324 Louisville &c. R. R. v. West . Coast Co., 198 U. S. 483 434 Love v. Butler, 129 Ala. 531 578 Lowe v. Summers, 69 Mo. App. 637 166 Lowery v. Peterson, 75 Ala. 109 578 Luckenbach S. S. Co. v. United States, 272 U. S. 533 387 Lumber Assn. v. United States, 234 U. S. 600 397 Lumiere v. Wilder, 261 U. S. 174 122 MacGreal v. Taylor, 167 U. S. 688 23 24 Main v. Williams, 152 U. S. 122 329 Maine v. Grand Trunk Ry., 142 U. S. 217 43 Mallen v. Ruth Oil Co., 230 Fed. 497 ; 231 Fed. 845 199 Malley v. Bowditch, 259 Fed. 809 103 Maple Assn. v. United States, 268 U. S. 563 400 Page. Marion Co. v. Perry, 74 Fed. 425 259 Marron v. United States, 8 F. (2d) 251 33 Marshall v. Gordon, 243 U. S. 521 173,176 Martin v. Hunter’s Lessee, 1 Wheat. 304 174 Massachusetts v. Mellon, 262 U. S. 447 18,74 Mason v. United States, 244 U. S. 362 113 Mason v. United States, 260 U. S. 545 506 Mason Co. v. United States, 56 Ct. Cis. 238 387 Mason Co. v. United States, 260 U. S. 323 387 Matthews, v. Huwe, 269 U. S. 262 515 Maxwell v. Bugbee, 250 U. S. ’ 525 413 McCall v. California, 136 U.S. 104 37,41 McChord v. L. & N. R. R., 183 U. S. 483 314 McDonald v. Oregon R. R., 233 U. S. 665 273 McIntyre v. Kavanaugh, 242 U. S.138 123 McKiernan v. Patrick, 4 How. (Miss.) 333 319 McLean v. Denver &c. R. R., 203 U. S. 38 40 McMillan Co. v. Abernathy, 263 U. S. 438 116 McPherson v. Blacker, 146 U. S. 1 157 Meccano, Ltd. v. Wanamaker, 253 U. S. 136 131 Meek v. Centre Co., 268 U. S. 426 383 Meeker v. Lehigh Valley R. R., 236 U. S. 412 284,311 Meguire v. Corwine, 101 U. S. 108 500 Mercantile Bank v. New York, 121U. S.138 556,558,560,564 Merchants Bank v. Richmond, 256 U. S. 635 550,551 Merchants Exch. v. Missouri, 248 U.S. 365 40,92 LVIII TABLE OF CASES CITED. Page. Merchants Whse. Co. v. Mc- Clain, 112 Fed. 787 103 Merritt v. United States, 267 U. S.338 202 Met. Water Co. v. Kaw, 223 U. S. 519 657 Mexican Cent. Ry. v. Pinkney, 149 U. S. 194 76 Meyer v. Nebraska, 262 U. S. 390 299 Meyers v. Shields, 61 Fed. 713 528 Mid-Nor Oil Co. v. Walker, 268 U. S. 45 640 Miles Co. v. Park Co., 220 U.S. 373 399,401 Miller v. Assurance Co., 233 Mo. 91 319 Miller v. Gesellschaft, 283 Fed. 746 193,194 Miller v. Rouse, 276 Fed. 715 188 Miller v. United States, 6 F. (2d) 463 6,8 Millers Underwriters,?;.Braud, 270 U. S. 59 639,665 Mills v. Lehigh Valley R. R., 238 U. S. 473 311 Minnesota v. Bank, 273 U. S. 561 558 Minnesota v. Nor. Sec. Co. 194 U. S. 48 18 Minnesota &c. R. R. v. Minnesota, 193 U. S. 53 124 Minnesota Rate Cases, 230 U. S.352 88 Missouri v. Kan. Gas Co., 265 U.S. 298 86,87,88,89,90,92 Missouri v. Lewis, 101 U. S. 22 534,669 Missouri &c. Ry. v. Harriman, 227 U. S. 657 . 283 Missouri &c. Ry. v. Harris, 234 U. S. 412 283 Missouri Pac. Ry. v. Omaha, 235 U- S. 121 Mitchell v. Overman, 103 U. S. 62 359 Moore v. Cotton Exch., 270 U. S. 593 64,65 Moore v. Fidelity Co., 272 U. S. 317 390,652 Page, Morgan v. Daniels, 153 U. S. 120 671 Morgan v. Devine, 237 U. S. 632 12,206 Morrison, In re, 147 U. S. 14 214 Morse v. United States, 270 U. S.151 672 Moses v. Johnson, 88 Ala. 517 578 Moses v. Julian, 45 N. H. 52 522 Motion Picture Co. v. Universal Co., 243 U. S. 502 242 Mueller v. Engeln, 75 Ky. 441 581 Mugler v. Kansas, 123 U. S. 623 446,453 Mumma v. Potomac Co., 8 Pet. 281 259 Munhall v. Mitchell, 178 Mo. App. 494 319 Munn v. Illinois, 94 U. S. 113 430 4.39 434,435,447,449,452,455 Murdock v. Memphis, 20 Wall. 590 131 Murphy v. California, 225 U. S. 623 453 Murphy v. Sardell, 269 U. S. 530 657 Murray v. Hoboken Co., 18 How. 272 352,523,655 Murrell, The, 195 Fed. 483; 200 Fed. 826 331 Muskrat v. United States, 219 U. S. 346 74 Musser v. Good, 11 S. & R. 247 525 Mutual Co. v. Martell, 222 U.S. 225 453 Mutual Film Corp. v. Ohio Comm., 236 U. S. 230 449 Mutual Res. Assn. v. Phelps, 190 U. S. 147 274,280 Myers v. United States, 272 U. S.52 157 Napier v. A. C. L. Ry., 272 U. S.605 346 Nash v. Minn. Trust Co., 163 Mass. 574 124 Nash v. United States, 229 U. S. 373 396,398,402,657 TABLE OF’CASES CITED. LIX Page. Nashville &c. Ry. v. Alabama, 128 U. S. 96 40 Nassau v. Brightwood (Do., 265 U. S. 269 383 Nat. Bank v. Anderson, 269 U.S.341 . 550, 551,556,557,560,564 Nat. Bank v. Colby, 21 Wall. 609 259 Nat. Ins. Co. v. Wanberg, 260 U. S. 71 453 Neblett v. Macfarland, 92 U. S. 101 505 Nelson v. United States, 201 U. S. 92 158 Ness v. Fisher, 223 U. S. 683 649,661 Nettie Quill, The, 124 Fed. 667 328,330 Nettleton’s Appeal, 28 Conn. 268 522 Nevada Bank v. Portland Bank, 59 Fed. 338 123 New Boston, Petition of, 49 N. H. 328 529 New Jersey v. Sargent, 269 U. S. 328 74,75 New Mexico v. Lane, 243 U. S. 52 649 New Orleans Co. v. New Or- leans, 164 U. S. 471 314 New York v. Davis, 7 F. (2d) 566 611 New York v. Miln, 11 Pet. 101 43 New York &c. R. R. v. Deis- ter, 253 Mass. 178 50 New York &c. R. R. v. New York, 165 U. S. 628 40 New York &c. Ry. v. United States, 273 U. 8. 652 312 New York Cent. R. R. v. New York, 186 U. S. 269 663,666 New York Cent. R. R. v. United States, 212 U. S. 481 83 New York Cent. R. R. v. White, 243 U. S. 188 452 New York Tr. Co. v. Eisner, 256 U. S. 345 17 Neyland, In re, 184 Fed. 144 382 Ng Fung Ho v. White, 259 U. S. 276 358 Page. Noah v. United States^ 128 Fed. 270 206 Noble Bank v. Haskell, 219 U. S. 104 453 Northern Belle, The, 9 Wall. 526 330 Nor. Pac. Ry. v. North Dakota, 236 U. S. 585 552 Nor. Pac. Ry. v. Washing- ton, 222 U. S. 370 3.46 Northwestern Ins. Co. v. Wisconsin, 247 U. S. 132 413 Norton v. Whiteside, 239 U. S. 144 641,653, 654,661,663,664 Norwich, The City of, 118 U. S. 468 214,215,216 Norwich Co. v. Wright, 13 Wall. 104 214 Nuendorff v. Duryea, 6 Daly 276 449 O’Brien v. Jones, 274 S. W. 242 119 Oklahoma v. A. T. & S. F. Ry., 220 U. S. 277 17 Oklahoma Co. v. Love, 252 U. S. 331 452 Oklahoma Gas Co. v. Russell, 261 U. 8. 290 628 Old Dominion S. S. Co. v. Virginia, 198 U. S. 299 92 Oliver Co. v. Lord, 262 U. S. 172 673 Oliver Co. v. Mexico, 264 U. S. 440 665 Omaha v. Olmstead, 5 Neb. 446 530 Oneida Corp. v. Job Co. 252 U. S. 521 654 Opinion of Justices, 251 Mass. 594 52 Opinion of Justices, 247 Mass. 497 453 Opinion of Justices, 247 Mass. 589 455 Oregon, The, 158 U. S. 186 219 Ore.-Wash. Co. v. Washing- ton, 270 U. S. 87 346 Osborne v. Mobile, 16 Wall. 479 43 Oscanyan v. Arms Co., 103 U. S. 261 500 Otis v. Parker, 187 U. 8.606 453 LX TABLE OF CASES CITED. Page. Ownbey v. Morgan, 256 U. S. 94 523,656 Oxley Co. v. Butler, 166 U. S. 648 640,658,666 Pack v. Freeholders, 20 N. J. L. 457 522 Packard v. Banton, 264 U. S. 140 52,428 Pacific Tel. Co. v. Kuykendall, 265 U. S. 196 628 Pacific Tel. Co. v. Oregon, 223 U. S. 118 646,647 Page v. Rogers, 211 U. S. 575 223,671 Palliser, In re, 136 U. 8. 257 621 Palmyra, The, 12 Wheat. 1 218,219 Papoose Oil Co. v. Swindler, 95 Okla. 264 199 Parker, Ex parte, 74 S. C. 466 166 Parker v. Rule’s Lessee, 9 Cr. 64 351 Passenger Cases, 7 How. 283 43 Patapsco Co. v. Board, 171 U. S. 345 39 Patterson v. Mobile Co., 271 U. S.131 390 Paul, In re, 5 Alb. L. 442 606 Peace v. Atwood, 13 Mass. 324 522 Pearson v. United States, 267 U.S. 423 648,650 Pease v. Rathbun Co., 243 U. S.273 640 Peck, Matter of, 206 N. Y. 55 384 Peik v. C. & N. W. Ry., 94 U. S. 164 43 Pendleton v. Russell, 144 U. S. 640 259 Pennoyer v. Neff, 95 U. S. 714 273 Pennsylvania v. West Virginia, 262 U. S. 553 90,93 Pennsylvania, The, 154 Fed. 9 218 Penna. Co. v. McCann, 54 Oh. St. 10 125 Penna. Coal Co. v. Mahon, 260 U. S. 393 438 Page. Penna. Gas Co. v. Pub. Ser. Comm., 252 U.S. 23 87, 88,89,92 Penna. R. R. v. Labor Board, 261 U. S. 72 314 Penna. R. R. v. Pub. Ser. Comm., 250 U. S. 566 346 People v. Amanna, 203 App. Div. 548 400 People v. Ewer, 141 N. Y. 129 449 People v. Flynn, 7 Utah 378 593 People v. Gardner, 130 N. Y. Supp. 202 9 People v. Hildebrand, 71 Mich. 313 11 People v. Hoym, 20 How. Prac. 76 449 People v. Keeler, 99 N. Y. 463 165,178 People v. King, 110 N. Y. 418 430, 441,449 People v. Milk Exch., 145 N.Y. 267 400 People v. Newman, 109 Mise. 622 453 People v. Pfanschmidt, 262 111.411 112 People v. Schregardus, 226 Mich. 279 97 People v. Sheldon, 139 N. Y. 251 400 People v. Steele, 231 Ill. 340 444,454 People v. Thompson, 283 Ill. 87 444 454 People v. Weller, 237 N. Y. 316 428,453,455 Peoples Co. v. Am. Tob. Co., 246 U. S. 79 371,372 Peoples Gas Co. v. Pub. Ser. Comm., 270 U. S. 550 86 Peri v. People, 65 Ill. 17 593 Peugh v. Davis, 96 U. S. 332 578 Phila. & R. Ry. v. McKibbin, 243 U. S. 264 122 Phila. S. S. Co. v. Pennsyl- vania, 122 U. S.326 43 Phillips Co. v. Grand Trunk Ry., 236 U. S. 662 656 Piedmont Co. v. Graham, 253 U. S.193 636,638,639, 645,646,647,655,656,659 TABLE OF CASES CITED. LXI Page. Pierce v. New Hampshire, 5 How. 504 43 Pierce v. Society, 268 U. S. 510 299 Pittsburg Coal Co. v. Louisiana, 156 U. S. 590 92 Plumley v. Massachusetts, 155 U. S. 461 433 Poleskey v. United States, 4 F. (2d) 110 6,8,11 Ponzi v. Fessenden, 258 U. S. 254 150,591,593 Postal Tel. Co. v. Tonopah R. R., 248 U. S. 471 252 Postum Co. v. Cal. Fig-Nut Co., 272 U. S. 693 74 Pothier v. Rodman, 261 U. S. 307 636 Poultry Assn. v. United States, 4 F. (2d) 840 401 Prentis v. Atl. C. L. Co., 211 U. S. 210 628 Price Co. v. United States, 261 U. S. 179 202 Prigg v. Pennsylvania, 16 Pet. 539 157,346 Pritchard v. Norton, 1Q6 U. S. 124 125 Probasco v. Raine, 50 Oh. St. 378 528 Procter Co. v. United States, 225 U. S. 282 309 Providence S. S. Co. v. Hill Mfg. Co., 109 U. S. 578 214, 215,218 Provost v. United States, 269 U. S. 443 102 Prudential Ins. Co. v. Cheek, 259 U. S. 530 274 Pullman Co. v. Kansas, 216 U. S'. 56 51 Pullman Co. v. Pennsylvania, 141 U. S. 18 43 Pure Oil Co. v. Minnesota, 248 U. S. 158 40 Quarg, Ex parte, 149 Cal. 79 444,454 Queen v. Gaisford, 1 Q. B. Div. 381 526 Queen v. Rand, L. R. 1 Q. B. 230 526 Queen v. Recorder, 8 El. & Bl. 637 526 Page. Quirk, In re, 1 F. (2d) 484 97 Railroad, Ex parte, 95 U. S. 221 261 R. R. Comm. v. Sou. Pac. Co., 264 U. S. 331 130 Railroad Co. v. Howard, 20 Mich. 18 522 Ramsay Co. v. Bill Assn., 260 U. S. 501 378 Ranger v. Railroad, 5 H. L. C. 72 522 Rathbone v. Stocking, 2 Barb. 135 24 Raydure v. Board, 183 Ky. 84 410,412 Raymond v. Chicago Trac. Co., 207 U. S. 20 416 Reagan v. Farmers Co., 154 U. S. 362 628 Real Silk Mills v. Portland, 268 U. S. 325 37,39,50,89 Red “C” Oil Co. v. Board, 222 U. S. 380 40 Reed’s Sons v. United States, 273 U. S. 200 660 Regina v. Day, 3 F. & F. 526 593 Regina v. Garrett, Dears. C. C. 232 621 Regina v. Hammond, 9 L. T. R. (N. S.) 423 526 Regina v. Russell, 2 Car. & Mar. 247 157 Regina v. Stone, 23 Ont. 46 606 Remus v. United States, 291 Fed. 501 602 Rex v. Brisac, 4 East 164 621,622 Rex v. Great Chart, Burr. S. C. 194 526 Rex v. Johnson, 7 East 65 623 Rice v. Butler, 160 N. Y. 578 26 Richardson v. Green, 130 U. S. 104 359 Richmond &c. R. R. v. Mitchell, 92 Ga. 77 125 Ridgeland v. Gens, 83 S. C. 562 11 Rigor v. State, 101 Md. 465 593 Ripper v. United States, 178 Fed. 24 29 Risty v. C. R. I. & P. Ry., 270 U. S. 378 116 LXII TABLE OF CASES CITED. Page. Riverside Co. v. Hitchcock, 190 U. S. 316 649 Robbins v. Gorham, 25 N. Y. 588 157 Roberts Co. v. Emmerson, 271 U. S. 50 666 Robertson v. Labor Board, 268 U.S.619 374 Robinson v. Farrelly, 16 Ala. 472 578 Robinson v. Seaboard Bank, 247 Fed. 1007 384 Robinson v. United States, 261 U. S. 486 665 Rogers v. Rawlings, 298 Fed. 683 581 Rogers v. United States, 270 U. S. 154 202,387 Rosen v. United States, 161 U. S.29 82 Rosenberg Bros. v. Brown Co., 260 U. S. 516 122 Rossini v. United States, 6 F. (2d) 350 4 Roszcynialla, In re, 99 Wis. 534 • 606 Russell Co. v. United States, 261 U. S. 514 201,235,236 Ryan, Ex parte, 10 Nev. 261 593 Ryan v. United States, 5 F. (2d) 667 6 St. Louis Adv. Co. v. St. Louis, 249 U. S. 269 453 St. Louis &c. Ry. v. Arkansas, 240 U. S. 518 40 St. Louis &c. Ry. v. Starbird, 243 U. S. 592 283 St. Louis &c. Ry. v. United States, 268 U. S. 169 672 St. Louis S. F. Ry. v. Mills, 271 U. S. 344 673 St. Louis S. W. Ry. v. Arkan- sas, 235 U. S. 350 413 St. Louis S. W. Ry. v. United States, 264 U. S. 64 312 Salinger v. Loisel, 265 U. S. 224 643 Salinger v. United States, 272 U. S.542 602,643 Sanborn v. Carleton, 15 Gray 399 155 Sanger v, Hibbard, 104 Fed. 455 23 Page. San Pedro &c. R. R., 75 I. C. C. 463 ; 97 I. C. C. 737; 1031. C. C. 398 307 Santa Rosa, The, 249 Fed. 160 213 Saunders v. Evans, 8 H. L. C. 721 611,612 Savage v. Jones, 225 U. S. 501 40 Savage v. United States, 270 Fed. 14 82 Savings Union v. Long, 123 Cal. 107 319 Sayward v. Denny, 158 U. S. 180 640,658 Seaboard Air Line Ry. v. Blackwell, 244 U.S. 310 42 Seaboard Air Line v. Padgett, 236 U. S. 668 645, 646,647,655,656,659 Seaboard Air Line v. United States, 261 U. S. 299 236 Seven Bells, The, 241 Fed. 43 330 Scheer v. Keown, 29 Wis. 586 11 Schlesinger v. Wisconsin, 270 U. S. 230 642 Schlitz Co. v. Houston Co., 250 U.S. 28 633 Schmidinger v. Chicago, 226 U. S. 578 453 Schmidt v. United States, 2 F. (2d) 367 10 Schwab v. Doyle, 258 U. S. 529 350 Scotland, The, 118 U. S. 507 214 Scottish Ins. Co. v. Bowland, 196 U.S. 611 352 Shafer v. Farmers Grain Co., 268 U. S.189 37,39,50,89,93 Shaffer v. Carter, 252 U. S. 37 413 Shapiro v. United States, 235 U. S.412 658 Sheridan v. Allen, 153 Fed. 568 352 Shulthis v. McDougal, 225 U.S. 561 260,641, 653,654,661,663,664,666 Silverman v. Rubenstein, 162 N. Y. 733 385 Silverthorne Co. v. United States, 251 U. S. 385 30,99 TABLE OF CASES CITED. LXIII Page. Simpson v. State, 92 Ga. 41 621 Simpson v. United States, 241 Fed. 841 6,7,9 Sims v. Everhardt, 102 U. S. 300 22,23,24 Singleton v. State, 71 Miss. 782 593 Sioux City Co. v. Dakota, 260 U. S. 441 670 Six Carpenters, 8 Coke 146(a) 98 Skrainka v. Scharringhausen, 8 Mo. App. 522 400 Slaughter House Cases, 16 • Wall. 36 541 Sligh v. Kirkwood, 237 U. S. 52 40,92 Smith v. Alabama, 124 U. S. 465 40 Smith v. I. C. C., 245 U. S. 33 310 Smith v. State, 20 Ala. App. 442 10 Smith & Sons, In re, 193 Fed. 395 213 Solomon v. People, 15 Ill. 291 9 Sonneborn Bros. v. Cureton, 262 U. S. 506 43,64 South Covington &c. Ry. v. Kentucky, 252 U. S. 399 40 Sou. Pac. Co. v. Denton, 146 U. S. 202 76 Sou. Pac. Co. v. I. C. C., 219 U. S. 498 182 Sou. Pac. Co. v. Schuyler, 227 U. S. 601 553 Sou. Pac. Co. v. United States, 268 U. S'. 263 663,672 Southern Ry. v. King, 217 U. S. 524 42 Southwestern Co. v. Texas, 217 U. S. 114 412,413 Staats Co. v. Security Bank, 243 U. S. 121 667 Standard Mfg. Co. v. United States, 226 U. S. 20 398 Standard Oil Co. v. Graves, 249 U. S. 389 43 Standard Oil Co. v. United States, 221 U. S. 1 396, 397,398,399,400 State v. Bishop, 7 Conn. 181 606 State v. Browning, 70 S. C. 466 606 Page. State v. Coal Co., 29 R. I. 254 400 State v. Craig, 80 Me. 85 531 State v. Crane, 36 N. J. L. 394 522 State v. Edwards, 86 Me. 102 432 State v. Fitzgerald, 51 Minn. 534 606 State v. Frear, 138 Wis. 173 166 State v. Hufford, 28 la. 391 9 State v. Keefe, 17 Wyo. 227 593 State v. Kelley, 118 Ore. 397 590 State v. Kinney, 41 Iowa 424 606 State v. McClain, 13 N. Dak. 368 10 State v. McCray, 74 Mo. 303 11 State v. Moore, 12 N. H. 42 99 State v. Munson, 111 Kan. 318 9 State v. Nolte, 111 Oh. St. 486 520 State v. Piver, 74 Wash. 96 621 State v. Simmons, 39 Kan. 262 9 State v. Turner, 170 N. C. 701 11 State v. Turner, 34 Ore. 173 330 State v. Volk, 144 Minn. 223 10 State v. Watson, 20 R. 1.354 606 State v. Wenzel, 77 Ind. 428 9 State v. Wilson, 38 Conn. 126 591,593 State Freight Tax, 15 Wall. 232 429 State Tax on Ry. Receipts, 15 Wall. 284 43 Steamship Co. v. Joliffe, 2 Wall. 450 131 Stebbins v. Riley, 268 U. S. 137 414 Steele v. United States, 267 U. S. 505 605 Steinberg v. United States, 14 F. (2d) 564 • 205,207 Stephens County v. Mid- Kansas Gas Co., 113 Tex. 160 117,118 Stewart v. Emerson, 52 N. H. 301 124 Stickney v. I. C. C., 164 Fed. 638 ; 215U.S.98 309 Stockwell v. Township, 22 Mich. 341 522 LXIV TABLE OF CASES CITED. Page. Stoehr v. Wallace, 255 U. S. 239 * 194 Stoffela v. Nugent, 217 U. S. 499 506 Strang v. Bradner, 114 U. S. 555 123 Strassheim v. Daily, 221 U. S. 280 620 Stratton’s Ltd. v. Howbert, 231 U.S. 399 673 Strauder v. West Virginia, 100 U. S. 303 541 Stuart v. Bank, 19 Johns. 496 522 Stuart v. Laird, 1 Cr. 299 174 Sturgis v. Champneys, 5 Myl. & C. 97 27 Sullivan v. Hill, 73 W. Va. 49 166 Sunday Iron Co. v. Wakefield, 247 U. S'. 350 670 Sutherland v. Guaranty Trust Co., 11 F. (2d) 696 188 Swift & Co. v. United States, 196U. S. 375 64,399 Talcott v. Friend, 179 Fed. 676 123 Tang Tun v. Edsell, 223 U. S. 673 358 Taylor v. Commrs., 105 Mass. 225 522 Taylor v. L. & N. R. R., 88 Fed. 350 670 Tempel v. United States, 248 U. S.121 648 Terminal Co. v. Dist. of Col., 241 U. S. 252 432,453 Terrace v. Thompson, 263 U. S. 197 453 Terry, Ex parte, 128 U. S. 289 157 Texas v. I. C. C., 258 U. S. 158 74 Tex. & Pac. Co. v. R. R. Comm., 232 U.S. 338 223,671 Texas Co. v. Brown, 258 U. S. 466 43,413 Texas Co. v. Daugherty, 107 Tex. 227 . 117 Texas Transp. Co. v. New Orleans, 264 U. S. 150 37,39,43 Page. Tierney Coal Co. v. Smith, 180 Ky. 815 199 Tiger v. Fewell, 271 U. S. 649 655 Tisi v. Tod, 264 U. S. 131 106, 649,651,655 Titanic, The, 204 Fed. 295 213 Thomas v. Matthiessen, 232 U. S. 221 123 Thomas v. Mt. Vernon, 9 Oh. 290 530 Thomas v. People, 67 N. Y. 218 593 Thompson v. Cayser, 243 U. S. 66 ’ 400 Thornton v. United States, 271 U. S. 414 81 Tobin v. Spann, 85 Ark. 556 23 Tool Co. v. Norris, 2 Wall. 45 500 Toop v. Land Co., 237 U. S. 580 630,638,639, 645,646,647,655,656,659 Tracy v. Ginzberg, 205 U. S. 170 273 Transportes v. Almeida, 265 U. S. 104 665 Trenton Co. v. Oliphant, 58 N. J. Eq. 507 400 Trist v. Child, 21 Wall. 441 500 Trono v. United States, 199 U. S. 521 639 Truax Corrigan, 257 U. S. 312 273,552 Turf Assn. v. Greenberg, 204 U. S. 359 449 Turnbull v. Payson, 95 U. S. 418 188 Turner v. Beacham, Fed. Cas. No. 14252 218 Turner v. Maryland, 107 U. S. 38 39 Twining v. New Jersey, 211 U. S. 78 641 Tyler v. Court, 179 U. S. 405 528 Union Bank v. Memphis, 189 U. S. 71 116 Union Co. v. Pub. Ser. Corp., 248 U. S. 372 91 Union Tank Co. v. Wright, 249 U. S. 275 43 TABLE OF CASES CITED. LXV Page. Union Trust Co. v. Wes thus, 228 U. S. 519 657 United Drug Co. v. Rectanus Co., 248 U. S. 90 544 United States v. Abilene & Sou. Ry., 265 U. S. 274 312 United States v. Adams Exp. Co., 230 Fed. 531 6 United States v. Alaska S. S. Co., 253 U. S. 113 313 United States v. Barnes, 222 U. S. 513 611 United States v. Baugh, 1 Fed. 784 5,7 United States v. Bernstein, 267 Fed. 295 438 United States v. Borkowski, 268 Fed. 408 29 United States v. Brown, 8 F. (2d) 630 33 United States v. Candelaria, 271 U. S. 432 320 United States v. City Bank, 19 How. 385 261 United States v. Clark, 298 Fed. 533 97 United States v. Cohen Co., 255 U. S. 81 398 United States v. Cooper, 295 Fed. 709 97 United States v. Corbett, 215 U. S. 223 330 United States v. Detroit Co., 200 U. S. 321 506 United States v. Drawdy, 288 Fed. 567 602 United States v. Elton, 222 Fed. 428 113 United States v. Falloco, 277 Fed. 75 33 United States v. Freight Assn., 166 U. S. 290 397, 398,399 United States v. Hall, 131 U. S. 50 5 United States v. Hartwell, 6 Wall. 385 330 United States v. Illig, 288 Fed. 939 10 United States v. Ills. Cent. R. R., 244 U. S. 82 309,652 42847°—27---V Page. United States v. Isham, 17 Wall. 496 103 United States v. Joe, Fed. Cas. No. 15, 478 7 United States v. Ju Toy, 198 U. S. 253 358,650 United States v. Katz, 271 U. S. 354 660 United States v. Kelly, 277 Fed. 485 29 United States v. Kelso, 86 Fed. 304 8 United States v. Lawrence, 26 Fed. Cas. No. 15, 572 207 United States v. Linseed Co., 262 U. S. 371 397 United States v. Mann, Fed. Cas. No. 15,717 7 United States v. Mann, 160 Fed. 552 336 United States v. Maxwell, Fed. Cas. No. 15,750 5,7 United States v. McDonald, 293 Fed. 433 6,9 United States v. Michalski, 265 Fed. 839 5 United States v. Midwest Oil Co., 236 U. S. 459 486 United States v. Morgan, 222 U.S. 274 4,6 United States v. Murphy, 16 Pet. 203 535 United States v. Nat. Malleable Co., 6 F. (2d) 40 9 United States v. Newton Tea Co., 275 Fed. 394 6 United States v. Noble, 237 U. S. 74 119 United States v. N. Amer. Co., 253 U. S. 330 648,649 United States v. Noveck, 271 U. S. 201 204 United States v. Oregon Co., 260 U. S. 290 350 United States v. P. & R. Ry. Co., 237 Fed. 292 9 United States v. Quaritius, 267 Fed. 227 5 United States v. Rabino wich, 238 U. S. 78 207 United States v. Rachmil, 270 Fed. 869 206 LX VT TABLE OF CASES CITED. Page. United States v. Rauscher, 119 U. S. 407 614,615,616,619 United States v. Reilley, 20 Fed. 46 5 United States v. Rhodes, 30 Fed. 431 206 United States v. St. Paul &c. Ry., 247 U. S. 310 350 United States v. Saline Bank, 1 Pet. 100 113 United States v. San Jacinto Co., 125 U. S. 273 150 United States v. Schallinger Co., 230 Fed. 290 7 United States v. Schrader, 252 U. S. 85 401 United States v. Schurman, 177 Fed. 581 5 United States v. Shepard, Fed. Cas. No. 16,273 5,7,9 United States v. Simon, 248 Fed. 980 5 United States v. Sing Tuck, 194 U. S. 161 357,358,650 United States v. Skinner, 218 ‘ Fed. 870 113 United States v. Slusser, 270 Fed. 818 33 United States v. Smith, 40 Fed. 755 5 United States v. Smith, 94 U. S. 214 340 United States v. Spokane Co., 206 Fed. 999 259 United States v. Standard Oh Co., 154 Fed. 728 8 United States v. State Inv. Co., 264 U. S. 206 223,671 United States v. Stinson, 197 U. S. 200 506 United States v. Strickland, 25 Fed. 469 6 United States v. Sweet, 245 U. S. 563 224 United States v. Traffic Assn., 171 U. S. 505 398 United States v. Thompson, 251 U. S. 407 4, 6 United States v. Trinidad Co., 137 U. S. 160 507,510 United States v. Tureaud, 20 Fed. 621 6,10 Page. United States v. Union Pac. R. R., 98 U. S. 569 374 United States v. Union Pac. Ry., 160 U. S. 1 218 United States v. Va. Chern. Co., 163 Fed. 66 9 United States v. Waller, Fed. Cas. No. 16,634 7 United States v. Weiss, 293 Fed. 992 602 United States v. Wells, 225 Fed. 320 6,9,10 United States v. Wyckoff, 271 U. S. 263 340 Van Oster v. Kansas, 272 U. S. 465 646 Victor Co. v. Kemeny, 271 Fed. 810 378 Virginia, Ex parte, 100 U. S. 339 17 Virginia, The, 266 Fed. 437 213 Vogue Co. v. Hat Co., 6 F. (2d) 875 631 Vollmer v. United States, 2 F. (2d) 551 6 Vulcan Co. v. Hercules Co., 96 Cal. 510 400 Wabash Co. v. Black, 126 Fed. 721 405 Wabash &c. Ry. v. Illinois, 118 U. S. 557 43,92 •Wagner v. Lyndon, 262 U. S. 226 116 Wagner v. United States, 3 F. (2d) 864 6,8 Walters v. Western &c. R. R., 69 Fed. 679 259 Ward v. Fellers, 3 Mich. 281 27 Ware v. Mobile, 209 U. S. 405 64,65 Warren v. Keep, 155 U. S. 265 671 Wash. Sec. Co. v. United States, 234 U. S. 76 223,671 Wash. Irr. Co. v. Krutz, 119 Fed. 279 500 Waterman v. Clark, 76 Ill. 428 27 Waterworks Co. v. Owensboro, 200 U. S. 38 416 Watson v. Maryland, 218 U. S. 173 417 TABLE OF CASES CITED. LXVII Page. Watson v. State Comp., 254 U. S. 122 .413 Watts & Co. v. Unione Austriaca, 248 U. S. 9 131 Webb v. O’Brien, 263 U. S. 313 453 Weeks v. United States, 216 Fed. 292 6,8 Weeks v. United States, 232 U. S. 383 30,99 Weigle v. Curtice Bros. Co., 248- U. S. 285 40 Weil v. Black, 76 W. Va. 685 621 Weller v. New York, 268 U. S. 319 426,429 Wellmaker v. Terrell, 3 Ga. App. 791 527,531 Wentworth v. Sawyer, 76 Me. 434 99 Western Union Co. v. Foster, 247 U. S. 105 64 Western Union Co. v. Kansas, 216 U. S. 1 51 Wetton, In re, 1 Cromp. & J. 459 593 Wheeling v. Black, 25 W. Va. 266 522,523,530 Wilckens v. Willet, 1 Keyes 521 165 Wilder v. Keeler, 3 Paige 167 384 Wiley v. Sinkler, 179 U. S. 58 540 Williams v. Johnson, 239 U. S. 414 199 Page. Williamson v. United States, 207 U. S. 425 81 Wilson, Ex parte, 114 U. S. 417 ' 7 Wilson v. New, 243 U. S. 332 437 Wilson v. State, 57 Ind. 71 157’ Winder v. Caldwell, 14 How. 434 27 Wisconsin v. Pelican Ins. Co., 127 U.S. 265 • 17 Wolf v. United States, 283 Fed. 885 81 Wolff Co. v. Court, 262 U. S. » 522 431,438,455 Work v. Louisiana, 269 U. S. 250 224,225 Work v. Rives, 267 U. S. 175 661 Wright v. Barnard, 248 Fed. 756 124 Wright v. Butler, 6 Wend. 284 . 24 Wright Co. v. United States, 236 U. S. 397 223,671 Xenia Bank v. Stewart, 114 U. S. 224 499 Yaffee v. United States, 276 Fed. 497 6,8,9 Yee Hem v. United States, 268 U. S. 178 78 Yick Wo v. Hopkins, 118 U. S. 356 541 Zucht v. King, 260 U. S. 174 125 TABLE OF STATUTES CITED IN OPINIONS. (A) Statutes of the United States. Page. 1798, May 3, c. 36, 1 Stat. 554................... 167,174 1817, February 8, c. 10, 3 Stat. 345................. 167 1842, August 31, c. 279, 5 Stat. 577....-.......... 501 1845, March 3, c. 75, 5 Stat. 788 .............. 222,224,225 1851, March 3, c. 43, 9 Stat. 635 (Limitation of Liability Act).....................213 1857, January 24, c. 19, 11 Stat. 155, § 1.. 167,168,172,174 1862, January 24, c. 11, 12 Stat. 333 .............. 167 1864, June 3, c. 106, 13 Stat. 99 550 1864, June 11, c. 1'21, 13 Stat. 124, §§ 2, 3................ 7 1866, June 27, c. 140, 14 Stat. 74, § 2................... 352 1868, February 10, c. 7, 15 Stat. 34 ................. 550 1870, May 31, c. 114, 16 Stat. 142, § 8................. 7 1877, February 27, c. 69, 19 Stat. 240 ................ 502 1887, February 4, c. 104, 24 Stat. 379 (Interstate Commerce Act), § 1, par. 18....... 127,130 § 19a.....’.... 307,312,313 § 20a.............. 282,314 § 15a..................314 § 5....................314 1887, July 5, c. 217, 23 Stat. 107 ...................... 202 1889, March 2, c. 382,25 Stat. 858, §§ 3, 5........ 150,344 Page. 1890, July 2, c. 647, 26 Stat. 209 (Sherman Anti-Trust Act)...........394 § 2.....................367 | 4.................... 150 § 7 ........... 367,371,372 1891, February 28, c. 384, 26 Stat. 796....-....... 225,227 1893, February 13, c. 105, 27 Stat. 445 (Harter Act), § 3.......................327 1894, July 16, c. 138, 28 Stat. 107 § 6...................224 1894, August 27, c. 349, 28 Stat. 509, §§ 73, 74..... 371 1897, February 11, c. 216, 29 Stat. 526................ 486 1898, July 1, c. 541, 30 Stat. 544 (Bankruptcy Act), § la..................381 § 5a....................381 § 12 .............. 381,383 § 14 .............. 381,382 1901, March 2, c. 803, 31 .Stat. 895................. 202 1906, June 12, c. 3078, 34 Stat. 240....?....... 202,502 1906, June 29, c. 3591, 34 Stat. 584 (Hepburn Act), §§2-7.......... 309 § 7.................... 282 1906, June 30, c. 3914, 34 Stat. 697................ 502 1906, June 30, c. 3935, 34 Stat. 816................ 150 1907, March 2, c. 2564, 34 Stat. 1246 (Criminal Appeals Act)............... 205 LXIX LXX TABLE OF STATUTES CITED. Page. 1908, May 27, c. 199, 35 Stat. 312 197 1909, February 9, c. 100, 35 Stat. 614 (Opium Act)................. 78 § 2(c)................. 79 1909, March 4, c. 321, 35 Stat. 1088 (Criminal Code), § 225 .................. 337 1910, March 23, c. 115, 36 Stat. 243 .............. 323 1910, June 18, c. 309, 36 Stat. 539, § 1............ 309 § 7....................253 §13................... 312 1910, June 25, c. 421, 36 Stat. 847................. 487,501 1910, June 25, c. 423, 36 Stat. 851..................... 237 1911, March 3, c. 231, 36 Stat. 1087.....:........ 540 1912, August 24, c. 389, 37 Stat. 539 .............. 335 1913, March 1, c. 92, 37 Stat. 701 (Valuation Act)......307 1913, March 4, c. 148,37 Stat. 891..,.............. 501,503 1913, October 22, c. 32, 38 Stat. 208............... 308 1913, December 23, c. 6, 38 Stat. 251, § 24..... 558,560 1914, January 17, c. 9, 38 Stat. 275 ............... 78 1914, June 30, c. 130, 38 Stat. 392 .................... 501 1914, September 26, c. 311, 38 Stat. 717 (Federal Trade Commission Act), § 5.... ’58 1914, October 15, c. 323, 38 Stat. 730 (Clayton Act), § 4........... 372 § 5...................369 § 12 ..... 367,370,372,374 § 15 ................ 150 1915, March 3, c. 83, 38 Stat. 928 .................... 501 1915, March 4, c. 176, 38 Stat. 1196 (Cummins Amendment) ............... 283,284 1916, August 29, c. 417, 39 Stat. 556 .............. 501 Page. 1916, September 6, c. 448, 39 Stat. 726, § 2.......655 § 6...................672 1916, September 7, c. 461, 39 Stat. 752............. 558,560 1917, February 5, c. 29, 39 Stat. 874 (Immigration Act), § 1...........354 § 16 ........'... 354,357 § 17..................354 § 19..................354 1917, March 4, c. 180,39 Stat. 1168 ................... 501 1917, June 15, c. 29, 40 Stat. 182 .................. 232,502 1917, June 15, c. 30, 40 Stat. 217 (Espionage Act), Tit. XI, §§3-6....... 29 Tit. XI, §§ 15, 16, 21... 98 1917, October 6, c. 106, 40 Stat. 411 (Trading with the Enemy Act), § 7....................... 188 § 7(a) .............. 184 § 7(c)............... 193 § 7(e)............... 194 § 9.................. 194 § 12............. 189,192 § 17............... 184 1918, July 1, c. 114, 40 Stat. 704 ............ 237,240,502 1918, March 28, c. 28,40 Stat. 423, § 1................ 189 1918, October 16, c. 186, 40 Stat. 1012..........'... 104 1918, November 4, c. 201, 40 Stat. 1020.......... 502 § 1 ... 187,189,191,192,193 1919, February 24, c. 18, 40 Stat. 1057, § 250(d).. 350 § 253 205,206 § 401 ............ 546,547 § 402(c) ....;.... 546,548 § 500................ 246, 247,248,251,254,255,256 § 501 ......... 246,255,256 Tit. XI, § 1100, Sched. A............... 101,102 1919, March 2, c. 94, 40 Stat. 1272 (Dent Act).......... 201 TABLE OF STATUTES CITED. IXXI Page. 1919, July 11, c. 9, 41 Stat. 131........................ 502 1919, October 28, c. 85, 41 Stat. 305............. 96 Tit. II, § 2............ 29 § 3 600,617 § 25 98 §29 600 1920, February 25, c. 85, 41 Stat. 437 (Leasing Act) 487,501 1920, February 28, c. 91, 41 Stat. 456 (Transportation Act)........ 283,284 Tit. IV, § 400, (1), (2), (3).....................343 (6) .... 344,345 § 415 344 §421...........314 § 433 ........ 307 § 441 .... 344,345 1920, May 29, c. 214, 41 Stat. 631....................-... 155 1920, June 4, c. 228, 41 Stat. 812................ 487, 501,509 1920, June 5, c. 251, 41 Stat. 1008, § 1...... 104,110 § 2................ 105,110 1920, June 5, c. 253, 41 Stat. 1015....................... 502 1921, March 3, c. 124, 41 Stat. 1252 .............. 155 1921, July 12, c. 44, 42 Stat. 19.9. 509. 1921, November 23, c. 136, 42 Stat. 227, § 250(d).......... 347,348, 350,351,352 § 250(g)................325 § 253 ............. 205,206 § 500 .......... 246,247,251 § 501 ................. 246 Tit. XI, § 1100, Sched. A.................101,102 1922, March 20, c. 103, 42 Stat. 422................ 155 1922, May 26, c. 202, 42 Stat. 596......................... 78 1922, June 7, c. 210, 42 Stat. 624........................ 307 1922, September 14, c. 305, 42 Stat. 837.......i....... 636 Page. 1922, September 21, c. 356, 42 Stat. 858, Tit. I, sched. 14, par. 1429.. 266 § 484(a)....................269 § 593(a)........... 267,268 § 593(b)....... 600,601,617 1923, February 20, c. 98, 42 Stat. 1264................. 155 1923, March 4, c. 267, 42 Stat. 1499 .......... 557,561 1924, February 8, c. 16, 43 Stat. 5.......... 151,491,501 1924, February 21, c. 39, 43 Stat. 15..........;........ 151 1924, February 27, c. 42, 43 Stat. 16................. 151 1924, April 2, c. 81, 43 Stat. 33......................... 155 1924, May 26, c. 190, 43 Stat. 165, § 23.............. 110 1924, June 2, c. 234, 43 Stat. ' 253, § 278 (d), (e).....351 1924, June 7, c. 303, 43 Stat. 578...................... 155 1925, February 13, c. 229, 43 Stat. 936 ... 3,67,73,78, 201,237,265,325,355, 368,389,390,593,636, 662,667,668,675. § 1 643,645 § 14 228,636 1925, March 4, c. 549, 43 Stat. 1286................. 155 1926, February 26, c. 27, 44 Stat. 9, §278 (d), (e). 351 § 301............... 15,16 1927, February 25, ,c. 191, 44 Stat. 1224, § 24..... 558,560 Constitution. See Index at end of volume. Revised Statutes. § 101 859 § 102 859 § 103 859 § 104 859 § 346 150 § 350 ................. 150 § 359 ................. 150 § 360 ................. 150 § 361.................. 150 § 362 ................. 150 § 367 ................. 150 LXXII TABLE OF STATUTES CITED. Revised Statutes—Con. Page. § 859 ................ 168 § 914................72,76 § 1036 ............... 587 § 1552 ............... 501 § 1993 ............ 353,357 § 2103 ............... 320 .§2116 ................ 320 § 2275 ............... 225 § 2276 ............ 225,226 § 2319 ............... 486 § 2329 ............... 486 § 2347 ............... 507 § 2348 ............... 508 § 2350 ............... 508 § 2865 ............... 268 § 3190 ............. 352 § 3194 ............... 352 § 3197 ............... 352 § 3199 ............... 352 § 3200 ............... 352 § 3203 ............... 352 § 3617 .............. 502' § 3618 ............... 502 § 3709 .............. 202 § 3732 ............ 202,502 § 3733 ............... 502 § 3846 ............ 334,336 § 4045 ........ 334,335,336 § 4046 ............... 336 § 4282 ............... 214 § 4283 ....... 211,214,331 § 4284 .......... 211,214 § 4285 ........... 211,214 § 4286 ............... 214 § 4287 ............... 214 § 4339 ............... 614 § 5136 ............... 560 § 5219....... 550,551,555, 557,558,559,560, 561,562,564,566, 567,568,569. § 5272 ............... 615 § 5275 ............... 615 Criminal Code. Page. § 37..... 78,600,602,607, 616,618,624 § 125 204,205,206 § 225 .............. 337 Judicial Code. § 24 (11), (12), (14)... 540 § 177 236 § 185 150 § 207 .............. 652 § 212 150 § 237 127,343,409, 550,563,653,654, 655,668,675. § 237(a).......... 35,593 § 238 3,73,78,105,116, 121,154,184,355,389, 416, 636, 645, 667, 668 § 238(a)............. 116 § 239 96 § 240 394,662,666 § 240( a)............ 265 § 241 222 § 242 67,101,200, 228,237,387 § 243 ....... 228,237,387 § 266 ... 48,389,390,391 § 274(a).............. 76 Carmack Amendment........ 282, 283,344,345 Cummins Amendment.. 344,345 Dent Act.............. 201,202 Federal Trade Commission Act..................... 58 Harter Act.... 327,328,329,331 Hepburn Act................309 Interstate Commerce Act... 307, 310,311,314 Opium Act............ 78,79,81 Prohibition Act........... 584 Sherman Anti-Trust Law... 72 Valuation Act...... 307,308,310 (B) Statutes of the States and Territories. Arkansas. Page. Crawford & Moses Dig., §§ 843, 844 ........... 342 California. Penal Code, § 526....... 454 Connecticut. 1923, Pub. Acts, c. 48... 453 Hawaii. page. 1920, Sp.'Sess., Act 30.. 290, 291-296 1923, Sess. Ls., Act 171.. 290 1925, Sess. Ls., Act 152 ........>........... 290,297 TABLE OF STATUTES CITED. LXXIII Illinois. Page. 1923 Laws, p. 322....... 454 1925, Rev. Stats., c. 38, §§ 587-593 (Syndical- ism Law)............. 112 Indiana. Burns’ Ann. Stat. 1926, §§ 4681^685 ............ 37 Kentucky. Constitution, §§ 171, 172.....................410 1917 Acts, c. 7, p. 40... 409, 410,411,412 1918 Acts, c. 122, § 3... 409, 410,411 1922, Acts, c. 83 (Declaratory Judgment Law).. 71,72,73,76 1922, Carroll’s Stats., § 162.................... 408 1922, Carroll’s Stats. § 4019a, sub. sec. 10.... 569 § 4092 ................. 569 1924 Acts, c. 10.......72,73 Louisiana. 1914 Acts, No. 223...... 282 Massachusetts. 1921 Gen. Ls., c. 211.... 381 1924 Acts & Resolves, c. 497 453 1925 Acts, c. 280....... 48 Gen. Ls., c. 1159, §§ 45, 48A, 49 ............. 48,49 Michigan. Cahill’s Comp. Ls. 1922, § 7164(1)-7164(9) ... 37 Minnesota. 1911 Ls., c. 285...... 563 1917 Ls., c. 130...... 563 1921 Ls., c. 416...... 563 c. 445 ...... 563 1921 Gen. Ls., c. 278.... 626 1913 Gen. Stats., § 2316 . 563 § 2301 ............ 563 1923 Gen. Stats., § 2023. 563 § 1980 ............ 563 Missouri. 1925 Ls., p. 323, (Rail- road Clearance Act) .. 130 New Jersey. 1923 Laws, c. 71........ 454 New York. e 1910 Ls., c. 349......... 37 1911 Ls., c. 578......... 37 New York—Continued. Page. 1922 Laws, c. 590. § 167 427,429 § 168 426,428 § 169 426 § 172 427,428,429 Penal Code, §§ 484, 514, 517, 831, 833, 1140a, 2074, 2145 .......... 449 § 1534 ......... 453 Personal Property Law, § 17................... 193 Town Law, § 217.........449 Village Law, § 90, par. 25 .................... 449 Ohio. 1913, 103 Oh. Ls. 290... 520 1920, 108 Oh. Ls. 388... 520 1920, 108 Oh. Ls. 1182.. 520 Gen. Code, § 4248 ..... 519 § 4255 ........... 519 § 4258 ........... 519 § 4259 ........... 519 § 4262 ........... 519 § 4270 ........... 520 § 6212-13......... 516 § 6212-15......... 516 § 6212-17......... 516 § 6212-18......... 516 § 6212-19......... 517 § 6212-20 ........ 516 § 6212-37 .... 517,518 §§ 10359, 10361 .... 517 §§ 13716, 13717 .... 516 §§710-183,710-187 . 37 Page’s Gen. Code, §§ 3657, 12600-2........ 449 Oklahoma. 1921 Stats., c. 34, Art. V, § 5361................. 260 1921 Comp. Stats., § 1431................. 198 Oregon. Laws, § 1893 .......... 590 § 1576 ........... 591 Pennsylvania. 1863 Ls., p. 582 ........ 36 1919 Ls., July 17....'. 35 1921 Ls., May 20, p. 997. 35 Philippine Islands. Code Civ. Pro., § 311(2) ............... 543,544,545 LXXIV TABLE OF STATUTES CITED. Texas. Page. 1920, Compl. Stat., Tit. 62, Art. 3973, a, b, c.. 121 1920, Compl. Stat., Art. 5739,5741,5745 ...... 417 1920, Compl. Stat., Art. 7510................. 117 1923 Stats., Art. 3093a.. 540 1919, Gen. Ls., c. 43.... 121 1925, Gen. Ls., c. 5..... 389 Constitution, Art. XVI, § 31..............417,418 Virginia. Page. 1904 Code, § 1294g, subsec. 2-3........... 279 Wisconsin. 1923 Stats., § 70.11.... 551 § 70.31 551 § 74.73 550 § 224.02 555 §224.03 554 (C) Treaties. Page. 1842, August 9, 8 Stat. 576 (Treaty between Great Britain and United States).....................614 1921, August 24, 42 Stat. 1946 (Treaty of Vienna).... 192 1921, August 25,42 Stat. 1939 (Treaty of Berlin).... 192 Page. 1924, May 22, 43 Stat. 1761 (Treaty between United States and Great Britain) ..................... 600 Art. 1.................... 607 Art. II...... 607,608,610,617 Art. Ill.................. 608 Art. IV....................609 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1926. ALBRECHT et al. v. UNITED STATES. ERROR TO THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ILLINOIS. No. 9. Argued November 23, 1926.—Decided January 3, 1927. 1. An arrest under a federal warrant based on affidavits verified before a notary public—a state official without authority to administer oaths in federal criminal proceedings—is in violation of the Fourth Amendment. P. 5. 2. An information can not be filed by a United States attorney without leave of court. P. 5. 3. The official oath of the United States Attorney may be accepted as sufficient verification of an information. P. 6. 4. Where an information gave the court to understand and be informed etc., “ on affidavits ” referred to, the invalidity of the affidavits and their use with the information as a basis for applying for and issuing warrants of arrest, did not affect the validity of the information. P. 6. 5. Where the information is valid but the warrant of arrest is based on insufficiently verified affidavits, the irregularity of the warrant may be waived. P. 8. 6. Mere giving of a bail bond without objection to the warrant does not waive invalidity of the warrant, or operate as a general appearance. P. 9. 7. Objection to arrest upon the ground that affidavits supporting the warrant are defective should be by motion to quash the warrant, not the information. P. 9. 8. A motion to quash a warrant issued upon insufficiently verified affidavits is too late if the defendant is in court and the affidavits have been amended before the motion is filed. P. 10. 42847°—27---1 1 2 OCTOBER TERM, 1926. Argument for Plaintiffs in Error. 273 U. S. 9. Punishing the same person for the distinct offenses of possessing and then selling the same liquor in violation of the Prohibition Act is not double punishment violating the Fifth Amendment. P. 11. Affirmed. Error to a judgment of the District Court sentencing the plaintiffs in error upon each of nine counts of an information charging violations of the Prohibition Act. Mr. Charles A. Houts, with whom Messrs. Samuel W. Baxter and D. E. Keeje were on the brief, for the plaintiffs in error. An information, when made the basis of an application for warrant of arrest, must be supported by an affidavit showing probable cause. 2 Op. Atty Gen. 266; Weeks v. U. S. 216 Fed. 292; United States v. Michalski, 265 Fed. 839; Keilman v. United States, 284 Fed. 845; United States v. Illig, 288 Fed. 939; United States v. McDonald, 293 Fed. 433; In re Gourdian, 45 Fed. 842; United States v. Tureaud, 20 Fed. 621; Ex parte Bur-jord, 3 Cranch 448. The affidavits filed originally with the information were sworn to before a notary public and were therefore insufficient, United States v. Schilling er Produce Co., 230 Fed. 20. The affidavits which were on file at the time the warrant issued’were nullities, and the information was unsupported by any affidavit which would be sufficient under the laws of the United States. The affidavits could not be lawfully amended. United States v. Tureaud, supra; United States v. Michalski, supra; Rice v. Ames, 180 U. S. 371; United States v. Morgan, 222 U. S. 275; People v. Clark, 280 Ill. 160; People v. Honaker, 281 Ill. 291; People v. Powers, 283 Ill. 438. The objection that the information was filed without proper affidavit, or proof of probable cause, was timely and properly made by the motion to quash. United States v. Tureaud, supra; Weeks v. United States, supra; 3 ALBRECHT v. UNITED STATES. Opinion of the Court. 1 Sampson v. United States, 241 Fed. 841 ; United States v. McDonald, supra; United States n. Schelling er Produce Co., supra. Amending the affidavits after the issuance and execution of the warrant, by substituting new affidavits, did not have the effect of validating the information as originally filed, and the arrest made thereon, prior to the amendment of the affidavits. United States v. Tureaud, supra; Rex v. Inhdb. of Barton, 9 Dowl. 1021 ; Coles Crim. Informations, p. 51 ; United States v. Casino, 286 Fed. 976; 1 R. C. L. 774. The affidavit itself must be sufficient to state facts which justify the issuance of a warrant and the officer is required by law to satisfy himself of the sufficiency of the affidavit and let the circumstances call for the issuance of a warrant. United States v. Borkoski, 268 Fed. 408; Ripper v. United States, 178 Fed. 24; United States v. Kaplan, 286 Fed. 963. Neither count of the information charges an offense under the laws of the United States. The judgment and sentence with respect to certain counts is unlawful as imposing double punishment. Muncy v. United States, 289 Fed. 780. Solicitor General Mitchell, with whom Assistant Attorney General Willebrandt and Mr. John J. Byrne, Attorney in the Department of Justice, were on the brief, for the United States. Mr. Justice Brandeis delivered the opinion of the Court. This direct writ of error to the federal court for eastern Illinois, was allowed under § 238 of the Judicial Code prior to the amendment of February 13, 1925. Albrecht and his associates were sentenced to either fine or imprisonment upon each of nine counts of an information charging violations of the National Prohibition Act. 4 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. There is no contention that the offences charged could not be prosecuted by information. See Brede v. Powers, 263 U. S. 4, 10; Rossini v. United States, 6 F. (2d) 350. The claims mainly urged are that, because of defects in the information and affidavits attached, there was no jurisdiction in the District Court and that rights guaranteed by the Fourth Amendment were violated. Several important questions of practice are presented which have not been passed upon by this Court, and on which there has been diversity of opinion in the lower courts, due in part to language in the opinions in United States v. Morgan, 222 U. S. 274, 282, and in United States v. Thompson, 251 U. S. 407, 413-414. The information recites that it was filed by the United States Attorney with leave of the court; and the truth of this allegation has not been questioned. A bench warrant issued; and the marshal executed it by arresting the defendants. When they were brought into court, each gave bond to appear and answer; was released from custody immediately; and was not thereafter in custody by virtue of the warrant or otherwise. At the time of giving the bonds, no objection was made to-either the jurisdiction or the service by execution of the warrant; and nothing was done then indicating an intention to enter a special appearance. On a later day, the defendants filed a motion to quash the information; declared in the motion that they “specifically limit their appearance in the cause for the purpose of interposing ” it; and protested that the court was without jurisdiction. The main ground urged in support of the objection was that the information had not been verified by the United States Attorney; that it recited he “ gives the court to understand and be informed, on the affidavit of I. A. Miller and D. P. Coggins ”; and that these affidavits, which were annexed to the information, had been sworn to before a notary public—a state official not authorized to admin- 5 ALBRECHT v. UNITED STATES. Opinion of the Court. 1 ister oaths in federal criminal proceedings. Compare United States v. Hall, 131 U. S. 50. With leave of court, new oaths to the affidavits were immediately sworn to before the Deputy Clerk of the Court, and additional affidavits, also sworn to before him, were filed. Thereupon, a new motion to quash, setting forth the same grounds, was filed by the defendants; and this motion extended to both the information and the warrant. It also was denied; and a demurrer interposed upon the same ground was overruled. Then, upon a plea of not guilty, the defendants were tried, with the result stated; and a motion in arrest of judgment was denied. As the affidavits on which the warrant issued had not been properly verified, the arrest was in violation of the clause in the Fourth Amendment which declares that “ no warrants shall issue but upon probable cause, supported by oath or affirmation.” See Ex parte Burford, 3 Cranch 448, 453; United States v. Michalski, 265 Fed. 839. But it does not follow that because the arrest was illegal, the information was or became void. The information was filed by leave of court. Despite some practice and statements to the contrary, it may be accepted as settled, that leave must be obtained; and that before granting leave, the court must, in some way, satisfy itself that there is probable cause for the prosecution.1 This is done some- 1The great majority of the lower courts dealing with the subject have insisted that the district attorney secure leave of court before filing informations, and have refused to grant leave except upon a showing of probable cause. United States v. Shepard, Fed. Cas. No. 16,273; United States v. Maxwell, Fed. Cas. No. 15,750; United States v. Baugh, 1 Fed. 784; United States v. Reilley, 20 Fed. 46; United States v. Smith, 40 Fed. 755; United States v. Schurman, 177 Fed. 581; United States v. Quaritius, 267 Fed. 227. In some districts the United States attorney has been permitted to file an information upon a purely formal allegation of leave, but the court determined the question of the existence of probable cause upon a motion of the defendant to withdraw leave. United States v. Simon, 248 Fed. 980; 6 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. times by a verification of the information, and frequently by annexing affidavits thereto. But these are not the only means by which a court may become satisfied that probable cause for the prosecution exists.* 2 The United States Attorney, like the Attorney General or Solicitor General of England, may file an information under his oath of office; and, if he does so, his official oath may be accepted as sufficient to give verity to the allegations of the information. See Weeks v. United States, 216 Fed. 292, 302. It is contended that this information was not presented on the official oath of the United States Attorney; that instead of informing on his official oath, he gave “ the court to understand and be informed on the affidavit [s] ” referred to; and that, for this reason, the information is to be likened, not to those filed in England by the Attorney General or the Solicitor General, but to those exhibited there by Masters of the Crown upon information of a private informer; that the latter class of informa- Ya flee v. United States, 276 Fed. 497. The statements in Ryan v. United States, 5 F. (2d) 667, and Miller v. United States, 6 F. (2d) 463, that the United States attorney may file informations as of right, are based upon an incidental remark in United States v. Thompson, 251 U. S. 407, 413-414, which must be disregarded. 2 A few cases have considered a verification essential to the validity of an information. United States v. Tureaud, 20 Fed. 621;. United States v. Strickland, 25 Fed. 469. Compare Johnston n. United States, 87 Fed. 187; United States v. Wells, 225 Fed. 320. See United States v. Morgan, 222 U. S. 274, 282. The opposite conclusion was reached after great deliberation in Weeks v. United States, 216 Fed. 292, since followed by many cases. Reference may be made to United States v. Adams Express Co., 230 Fed. 531; Simpson v. United States, 241 Fed. 841; Abbott Bros. Co. v. United States, 242 Fed. 751; Kelly v. United States, 250 Fed. 947; Brown v. United States, 257 Fed. - 703; United States v. Newton Tea & Spice Co., 275 Fed. 394; United States v. McDonald, 293 Fed. 433; Vollmer v. United States, 2 F. (2d) 551; Wagner v. United States, 3 F. (2d) 864; Poleskey v. United States, 4 F. (2d) 110; Gray v. United States, 14 F. (2d) 366. 7 ALBRECHT v. UNITED STATES. Opinion of the Court. 1 tions were required by Stat. 4 & 5, W. & M. C. 18, to be supported by affidavit of the person at whose instance they were preferred; that this requirement for informations of that character became a part of our common law; and, that, because the affidavits were not properly verified, the information could not confer jurisdiction. The practice of prosecuting lesser federal crimes by information, instead of indictment, has been common since 1870.3 But, in federal proceedings, no trace has been found of the differentiation in informations for such crimes, or of any class of informations instituted by a private informer comparable to those dealt with in England by Stat. 4 & 5, W. & M. C. 18. The reference to the affidavits in this information is not to be read as indicating that it was presented otherwise than upon the oath of office of the United States Attorney.4 The affidavits were doubtless referred to in 3 Two different courts, having before them criminal informations, were able to say, as late as 1870, that there had been no use of that procedure known to them up to that time. United States v. Shepard, Fed. Cas. No. 16,273; United States v. Cultus Joe, Fed. Cas. No. 15,478. See also Abbott’s United States Practice, Vol. II, 177. Story writing in 1833, said that there was very little use of informations except in civil prosecutions for penalties and forfeitures. The Constitution, § 1780. In 1864, Congress passed a statute which provided for a summary criminal proceeding, begun by sworn complaint, in cases involving minor offenses by seamen. Act of June 11, 1864, c. 121, §§ 2, 3, 13 Stat. 124. In 1870 was passed a statute authorizing prosecution by indictment or information for crimes against the franchise. Act of May 31, 1870, c. 114, § 8, 16 Stat. 142. While there was probably a sporadic use of informations in criminal proceedings during the first eighty years of the government, as in United States v. Mann, Fed. Cas. No. 15,717 (1812), the use did not become general until after 1870. After 1870 prosecutions by information became frequent. See United States v. Waller, Fed. Cas. No. 16,634; United States v. Maxwell, Fed. Cas. No. 15,750; United States v. Baugh, 1 Fed. 784. See also, Ex parte Wilson, 114 U. S. 417, 425. 4 Compare Simpson v. United States, 241 Fed. 841. Contra, United States v. Schallinger Produce Co., 230 Fed. 290. 8 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. the information, not as furnishing probable cause for the prosecution, but because it was proposed to use the information and affidavits annexed as the basis for an application for a warrant of arrest. If before granting the warrant, the defendants had entered a voluntary appearance, the reference and the affidavits could have been treated as surplusage, and would not have vitiated the information.5 The fact that the information and affidavits were used as a basis for the application for a warrant did not affect the validity of the information as such.6 Whether the whole proceeding was later vitiated by the false arrest remains to be considered. The invalidity of the warrant is not comparable to the invalidity of an indictment. A person may not be punished for a crime without a formal and sufficient accusation even if he voluntarily submits to the jurisdiction of the court. Compare Ex parte Bain, 121 U. S. 1. But a false arrest does not necessarily deprive the court of jurisdiction of the proceeding in which it was made. Where there was an appropriate accusation either by indictment or information, a court may acquire jurisdiction over the person of the defendant by his voluntary appearance.7 That a defendant may be brought before the court by a summons, without an arrest, is shown by the practice in prosecutions against corporations which are necessarily commenced by a summons.8 Here, the court had juris- 5 Compare Weeks v. United States, 216 Fed. 292; Poleskey v. United States, 4 F. (2d) 110; Miller v. United States, 6 F. (2d) 463. See also Kelly v. United States, 250 Fed. 947; Brown v. United States, 257 Fed. 703; Keilman v. United States, 284 Fed. 845; Carney v. United States, 295 Fed. 606; Wagner v. United States, 3 F. (2d) 864. 6 Compare Yafiee n. United States, 276 Fed. 497; Farinelli n. United States, 297 Fed. 198, 199. See Jordan v. United States, 299 Fed. 298. 7 See cases cited in note 5, supra. 8 The leading case on the use of summons in criminal prosecutions against corporations in the federal courts is United States v. Kelso, 86 Fed. 304, followed in United States v. Standard Oil Co., 154 Fed, 9 ALBRECHT v. UNITED STATES. Opinion of the Court. 1 diction of the subject matter; and the persons named as defendants were within its territorial jurisdiction. The judgment assailed would clearly have been good, if the objection had not been taken until after the verdict.9 This shows that the irregularity in the warrant was of such a character that it could be waived. Was it waived? And, if not, was it cured? The bail bonds bound the defendants to “be and appear ” in court “ from day to day ” and “ to answer and stand trial upon the information herein and to stand by and abide the orders and judgment of the Court in the premises.” It is urged there was a waiver by giving the bail bonds without making any objection. We are of the opinion that the failure to take the objection at that time did not waive the invalidity of the warrant or operate as a general appearance.10 An objection to the illegality 728; United States v. Virginia-Carolina Chemical Co., 163 Fed. 66; John Gund Brewing Co. v. United States, 204 Fed. 17; United States v. Philadelphia & R. Ry. Co., 237 Fed. 292; United States v. Nat. Malleable & S. Castings Co., 6 F. (2d) 40. 9 See Dowdell v. United States, 221 U. S. 325, 332; Jordan v. United States, 299 Fed. 298; Yaffee v. United States, 276 Fed. 497; United States v. McDonald, 293 Fed. 433, 437. Compare In re Johnson, 167 U. S. 120; Simpson v. United States, 241 Fed. 841; Abbott Bros. Co. v. United States, 242 Fed. 751. 10 There has been no discussion, in the federal courts, of the possible effect of a bail bond as a waiver of the right to object to an illegal arrest. In United States v. Shepard, Fed. Cas. No. 16,273, and United States v. Wells, 225 Fed. 320, the court quashed informations because of the illegality of the arrest, though the defendants had given bond without objecting to the illegality, but the question of waiver was apparently not pressed upon the courts. The trend of authority in the state' courts does not consider that giving bond is a waiver, since the defendant must give bond or go to jail, and will ordinarily have little knowledge of his legal rights. People v. Gardner, 71 Mise. 335, 130 N. Y. Supp. 202; State v. Simmons, 39 Kan. 262 (but compare State v. Munson, 111 Kan. 318). Compare Solomon v. People, 15 Ill. 291; State v. Hufjord, 28 la. 391. See Eddings v. Boner, 1 Ind. Terr. 173, 179-180, Contra, Stately. Wenzel, 77 Ind, 10 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. of the arrest could have been taken thereafter by a motion to quash the warrants, though technically the defendants were then held under their bonds, the warrants having performed their functions. But the first motion to quash was not directed to the invalidity of the warrant. As that motion to quash was directed solely to the information, it could not raise the question of the validity of the warrant.11 The motion to quash the warrant was not made until after the government had filed properly verified affidavits by leave of court. Thereby the situation had been changed. The affidavits then on file would have supported a new warrant, which, ijf issued, would plainly have validated the proceedings thenceforward. Compare In re Johnson, 167 U. S. 120. There was no occasion to apply for a new warrant, because the defendants were already in court.11 12 The defect in the proceeding by which they had been brought into court had been cured. By failing to move to quash the warrant before the defect had been cured, the defendants lost their right to object. It is thus unnecessary to decide whether it would have been proper to allow the amendment, and deny the mo- 428. It is of course possible that giving bail plus very little else may amount to a waiver. Ard v. State, 114 Ind. 542; State v. McClain, 13 N. Dak. 368. 11 There has been confusion as to the proper method of taking an objection to an illegal arrest. Some cases in the lower federal courts have apparently allowed it to be taken by a motion to quash the information or indictment. United States v. Illig, 288 Fed. 939. Compare United States v. Tureaud, 20 Fed. 621; Johnston v. United States, 87 Fed. 187; United States v. Wells, 225 Fed. 320. Later decisions require that the objection be taken to the warrant, not to the information or indictment. FarineUi v. United States, 297 Fed. 198, 199; Schmidt v. United States, 2 F. (2d) 367. Compare Christian v. United States, 8 F. (2d) 732, 733. 12 Compare Smith v. State, 20 Ala. App. 442; State v. Volk, 144 Minn. 223. 11 ALBRECHT v. UNITED STATES. Opinion of the Court. 1 tion to quash, if the attack on the warrant had been made before the amendment of the affidavits.13 There is a claim of violation of the Fifth Amendment by the imposition of double punishment. This contention rests upon the following facts. Of the nine counts in the information four charged illegal possession of liquor, four illegal sale and one maintaining a common nuisance. The contention is that there was double punishment because the liquor which the defendants were convicted for having sold is the same that they were convicted for having possessed. But possessing and selling are distinct offenses. One may obviously possess without selling; and one may sell and cause to be delivered a thing of which he has never had possession; or one may have possession and later sell, as appears to have been done in this case. The fact that the person sells the liquor which he possessed does not render the possession and the sale necessarily a single offence. There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction. The precise question does not appear to have been discussed in either this or a lower federal court in connection with the National Prohibition Act; but the general principle is well established. 13 See the action of the lower court described in Poleskey v. United States, 4 F. (2d) 110. As to allowing, after objection taken, the amendment of the process by which the defendant has been brought into court, see People v. Hildebrand, 71 Mich. 313; Town of Ridgeland v. Gens, 83 S..C. 562; Keehn v. Stein, 72 Wis. 196 (but see Scheer v. Keown, 29 Wis. 586). Compare State v. McCray, 74 Mo. 303. In State v. Turner, 170 N. C. 701, 702, the court said: “Even if one is wrongfully arrested on process that is defective, being in court, he would not be discharged, but the process would be amended then and there, or if the service were defective it could be served again.” 12 OCTOBER TERM, 1926. Statement of the Case. 273 U. S. Compare Burton v. United States, 202 U. S. 344, 377; Gavieres v. United States, 220 U. S. 338; Morgan v. Devine, 237 U. S. 632. The remaining objections are unsubstantial and do not require discussion. Affirmed. FLORIDA v. MELLON, SECRETARY OF THE TREASURY, et al. No. —, Original. Rule to show cause argued November 23, 1926.— Rule discharged January 3, 1927. 1. To come within the original jurisdiction of this Court, a suit by a State must be for redress of a wrong, or enforcement of a right, susceptible of judicial redress or enforcement. P. 16. 2. The federal inheritance tax law is constitutional, and must prevail over any conflicting provisions of state laws or constitutions. P. 17. 3. The constitutional requirement of uniformity in excise taxation (Art. I, § 8, cl. 1) is satisfied when by the provisions of a tax law the rule of liability under it is the same in all parts of the United States. P. 17. 4. The fact that the provisions of the federal act allowing deduction of State inheritance taxes in computing the federal tax can not be availed of in Florida, since that State by her constitution is forbidden to tax inheritance, does not sustain an allegation that the federal tax will directly injure her revenue by inducing the withdrawal of property from the State. P. 17. 5. A State can not, as parens patriae, represent her citizens in a suit to protect them from unconstitutional inequalities alleged to result from a federal tax law. P. 18. Leave to file bill denied. Upon a rule to show cause why the petition of the State of Florida to file a bill of complaint in this Court should not be granted. The proposed bill sought to enjoin the Secretary of the Treasury and the Commissioner of Internal Revenue from attempting to collect federal inheritance taxes in Florida. 13 FLORIDA v. MELLON. Argument for Complainant. 12 Messrs. John B. Johnson, Attorney General of Florida, and Peter 0. Knight, with whom Mr. James F. Glen was on the brief, for the complainant. The Constitution never contemplated that Congress could pass an excise tax law which would depend upon affirmative action by the several States to make it uniform in force and effect. It requires that an excise tax law, within itself, shall be uniform throughout the United States. The Estate Tax provision of the Revenue Act of 1926 was passed to coerce States into adopting estate or inheritance tax laws. If Congress could rebate 80 per centum, it could just as legally rebate 100 per centum of the tax, and the State not imposing a tax of this kind would be the only State paying such a tax to the Federal Government. Each State is supposed to raise revenue from the sources and in the manner most advantageous to itself, its citizens and to its business. These necessary taxes are bound to come from the earnings of its citizens in some form or other. One State may deem it to its advantage to raise a large part of this revenue from death duties, thus relieving other classes of its property and business from the burden. Another may deem it to its advantage to raise its revenues from other sources than death duties. Yet each State imposes its burden on the earning power of its citizens. Florida raises her revenue from other sources than death duties and income taxes. A majority of the States have combined and intend to force Florida to pay death duties, or estate taxes, for the support of the United States Government, when these same death duties or estate taxes paid by other States go to pay the expenses of state governments. The Constitution never contemplated such a condition. The Federal Government has no power by taxation or otherwise to control the internal affairs of the State in any matter not in conflict with the powers delegated to the United States, or inhibited to the State, by the Constitution. Texas v. White, 7 Wall. 14 OCTOBER TERM, 1926. Counsel for Defendant. 273 U. S. 700. The Estate Tax provision was not passed for the purpose of raising federal revenue. It was directed primarily at the State of Florida. It was not passed to obtain revenue from the tax-paying estates in Florida, but to nullify a constitutional provision of the State. Pollock v. Farmers Loan & Trust Co., 157 U. S. 429. Section 3224 Rev. Stat., is intended to be applicable only to individual controversies relating to specific taxes, and not to taxes sought to be imposed upon a large class under color of an unconstitutional statute. It approaches reductio ad absurdum to suggest that there must be universal submission throughout the United States to an unconstitutional statute, followed by tens of thousands of claims or suits for the recovery of taxes paid under it. Hill v. Wallace, 259 U. S. 44; Graham v. Dupont, 262 U. S. 234. In the present case we have an Act of Congress operative in Florida, against.the will of the State and its citizens, to which obedience must be yielded, if it is constitutional. That Act directly seeks and requires the removal from the State of property to the extent of several millions of dollars per annum. Its removal will diminish the revenues of the State. The Act directly discriminates in its effect against the State of Florida, as compared with other States. Those considerations, and others, particularly the fact that it cannot be denied that the representatives of Florida decedents questioning the constitutionality of the Act will have a justiciable controversy, distinguish this case from Massachusetts v. Mellon, 262 U. S. 447, and bring it within the category of Missouri v. Holland, 252 U. S. 416. Solicitor General Mitchell, with whom Mr. Robert P. Reeder, Special Assistant to the Attorney General, was on the brief, for the defendant. 15 FLORIDA V. MELLON, Opinion of the Court. 12 Messrs. Edward A. Harriman and Thomas B. Adams filed briefs as amici curiae by special leave of Court. Mr. Justice Sutherland delivered the opinion of the Court. The State of Florida seeks leave to file a bill of complaint against the defendants, citizens of other states, to enjoin them from attempting to collect in Florida inheritance taxes imposed by § 301 of the Revenue Act of 1926, c. 27, 44 Stat. 9, 69-70. A rule upon the defendants to show cause why such leave should not be granted was issued and answered. The complaint alleges that under the constitution of Florida no tax on inheritances can be levied by the state or under its authority; that by § 301 of the act referred to certain graduated taxes are imposed on the estates of decedents subject to the following provision: “ The tax imposed by this section shall be credited with the amount of any estate, inheritance, legacy, or succession taxes actually paid to any State or Territory or the District of Columbia, in respect of any property included in the gross estate. The credit allowed by this subdivision shall not exceed 80 per centum of the tax imposed by this section, and shall include only such taxes as were actually paid and credit therefor claimed within three years after the filing of the return required by section 304.” It is further alleged that the defendants are officers of the United States and are seeking to enforce the provisions of § 301; that citizens of Florida have died since the act was passed, leaving estates subject to taxation under the terms of that section; that defendants have required and are requiring the legal representatives of such decedents to make returns under that section, and unless such action is restrained, it will result in the withdrawal from Florida of several million dollars per annum and thus diminish the revenues of the state derived 16 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. largely from taxation of property therein; that the state is directly interested in the matter because it raises by taxation a sufficient amount of revenue to pay the expenses of the state government otherwise than by imposing inheritance taxes or taxes on incomes; and that the provisions of the said section constitute an invasion of the sovereign rights of the state and a direct effort on the part of Congress to coerce the state into imposing an inheritance tax and to penalize it and its property and citizens for the failure to do so. It is further alleged that the state is directly interested in preventing the unlawful discrimination against its citizens which is effected by §301 and in protecting them against the risk of prosecution for failure to comply with the enforcement provisions of the act; that the several states, except Florida, Alabama, and Nevada, levy inheritance taxes, but by reason of the provisions of its constitution Florida cannot place its citizens on an equality with those of the other states in respect of the tax in question, and [therefore] the tax is not uniform throughout the United States as required by § 8 of Article I of the federal Constitution. The allegations of the bill suggest two possible grounds upon which the asserted right of complainant to invoke the jurisdiction of this court may be supported: (a) that the state is directly injured because the imposition of the federal tax, in the absence of a state tax which may be credited, will cause the withdrawal of property from the state with the consequent loss to the state of subjects of taxation; and (b) that the citizens of the state are injured in such a way that the state may sue in their behalf as parens patriae. Neither ground is tenable. While judicial relief sometimes may be granted to a guasi-sovereign state under circumstances, which would not justify relief if the suit were between private parties, Georgia v. Tennessee Copper Co., 206 U. S. 230, 237, nevertheless, it must appear that the state has suffered FLORIDA v. MELLON. 17 12 Opinion of the Court. a wrong furnishing ground for judicial redress or is asserting a right susceptible of judicial enforcement. The mere fact that a state is the plaintiff is not enough. Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 287 ; Oklahoma v. A., T. & Santa Fe Ry., 220 U. S. 277, 286, 289. The act assailed was passed by Congress in pursuance of its power to lay and collect taxes, and, following the decision of this court in respect of the preceding act of 1916, New York Trust Co. v. Eisner, 256 U. S. 345, must be held to be constitutional. If the act interferes with the exercise by the state of its full powers of taxation or has the effect of removing property from its reach which otherwise would be within it, that is a contingency which affords no ground for judicial relief. The act is a law of the United States made in pursuance of the Constitution and, therefore, the supreme law of the land, the constitution or laws of the states to the contrary notwithstanding. Whenever the constitutional powers of the federal government and those of the state come into conflict, the latter must yield. Ex parte Virginia, 100 U. S. 339, 346; Brown v. Walker, 161 U. S. 591, 606; Cummings v. Chicago, 188 U. S. 410, 428; Lane County v. Oregon, 7 Wall. 71, 77. The contention that the federal tax is not uniform because other states impose inheritance taxes while Florida does not, is without merit. Congress cannot accommodate its legislation to the conflicting or dissimilar laws of the several states nor control the diverse conditions to be found in thè various states which necessarily work unlike results from the enforcement of the same tax. All that the Constitution (Art. I, § 8, cl. 1) requires is that the law shall be uniform in the sense that by its provisions the rule of liability shall be the same in all parts of the United States. The claim of immediate injury to the state rests upon the allegation that the act will have the result of inducing potential tax-payers to withdraw property from the state, 42847°—27----2 13 OCTOBER TERM, 1926. Syllabus. 273 U.S. thereby diminishing the subjects upon which the state power of taxation may operate. The averment to that effect, however, affords no basis for relief, because, not only is the state’s right of taxation subordinate to that of the general government, but the anticipated result is purely speculative, and, at most, only remote and indirect. Minnesota v. Northern Securities Co., 194 U. S. 48, 68-70. If, as alleged, the supposed withdrawal of property will diminish the revenues of the state, non constat that the deficiency cannot readily be made up by an increased rate pf taxation. Plainly, there is no substance in the contention that the state has sustained, or is immediately in danger of sustaining, any direct injury as the result of the enforcement of the act in question. See In re Ayers, 123 U. S. 443, 496; Massachusetts v. Mellon, 262 U. S. 447,488. Nor can the suit be maintained by the state because of any injury to its citizens. They are also citizens of the United States and subject to its laws. In respect of their relations with the federal government “ it is the United States, and not the State, which represents them as parens patriae, when such representation becomes appropriate; and to the former, and not to the latter, they must look for such protective measures as flow from that status.” Massachusetts v. Mellon, supra, pp. 485-486, It follows that leave to file the bill of complaint must be denied. Rule discharged and leave denied. MYERS v. HURLEY MOTOR COMPANY. CERTIFICATE FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. No. 65. Argued December 9, 1926.—Decided January 3, 1927. 1. The fact that a contract made in infancy was induced by the infant’s fraudulent misrepresentation of his age, does not estop him from disaffirming the contract and maintaining his action to recover money paid under it. Sims v. Everhardt, 102 U. 8. 300. P. 22. MYERS v. HURLEY MOTOR CO. 19 18 Argument for Myers. 2. But where the action is for money had and received, equitable principles apply defensively, and by way of recoupment, to prevent a recovery of that to which the plaintiff is not in equity and good conscience entitled. P. 23. 3. The infant, representing himself as of age, bought and obtained possession of an automobile, upon conditional sale, but paid only part of the price. The vendor took back the car. In an action by the vendee, who disaffirmed upon reaching his majority, the vendor was equitably entitled to recoup from the amount which the vendee had paid, the amount which the vendor was required to expend to put the car in as good condition as it was when so sold and delivered. P. 27. Response to questions certified by the Court of Appeals of the District of Columbia, on appeal from a judgment recovered on a counterclaim by the Motor Company, in an action by Myers to recover money and money’s worth paid in infancy on the purchase of an automobile. Mr. George P. Lemm for Myers. An estoppel is not applicable to infants. Sims v. Ever-hardt, 102 U. S. 300; Tobin v. Spann, 85 Ark. 556; Tucker v. Moreland, 10 Pet. 58; Conrad v. Lane, 26 Minn., 389; Burdett N. Williams, 30 Fed. 697; Price v. Jennings, 62 Ind. Ill; Raymond v. General Motorcycle Sales Co., 230 Mass. 54. In Sims v. Everhardt, supra, we find the established rule to be that an infant, who avoids a purchase by him under a contract of a conditional sale and returns the article purchased, is not required to account to the seller for wear, tear, and depreciation for the article while in his hands. MacGredl v. Taylor, 167 U. S. 688; McCarthy v. Henderson, 138 Mass. 310; Whitcomb v. Joslyn, 51 Vt. 79. In the case under consideration, the specific consideration which passed to the infant plaintiff, namely, the automobile, was returned to or taken possession of by the 20 OCTOBER TERM, 1926. Argument for Hurley Motor Co. 273 U. S. defendant. Plaintiff has done all the law requires of him as a condition to the avoidance of his contract. Mr. Henry C. Clark, with whom Messrs. Roger J. Whiteford and Walter B. Guy were on the brief, for the Hurley. Motor Co. Infancy is an equitable shield which may be lost by unconscionable conduct. Equity, through the doctrine of parens patriae, undertook to relieve against the difficulties which resulted from undue limitation of the capacity of an infant. This took the form of authorizing transactions through guardians, which disposed of the infant’s property, and also of upholding acts of the infant which equity would have required him to perform. Infants are not enveloped in absolute incapacity; they are not exempted from all responsibility. The privilege of infancy is not a privilege to cheat civilly any more than to cheat criminally. MacGreal v. Taylor, 167 U. S. 688; Fitts v. Hall, 9 N. H. 441; Kilgore v. Jordan, 17 Tex. 341; Eckstein v. Frank, 1 Daly 334; Parker v. Hayes, 39 N. J. Eq. 469; Rice v. Boyer, 108 Ind. 472; Commander v. Brazil, 88 Miss. 668; La Rosa v. Nichols, 92 N. J. L. 375. We are not dealing with an innocent infant, or one who has been imposed upon, but with an infant admittedly guilty of positive fraud. Nothing is offered in mitigation of the fraud. The only response is his attempt to hide behind his few months minority, a brazen attempt to use the privilege afforded for his protection as a sword of iniquity. The infant in Sims v. Everhardt, 102 U. S. 300, was compelled by the clear duress of her husband to execute a deed. The innocence of the infant is conspicuous throughout the opinion. This Court not only recognized, but placed its approval upon the distinction between an innocent infant and one guilty of positive fraud, at the time it denied certiorari in Carmen v. Fox Film Corp., 255 U. S, 569. MYERS v. HURLEY MOTOR CO. 21 18 Opinion of the Court. Mr. Justice Sutherland delivered the opinion of the Court. The facts which give rise to the questions of law in respect of which the instruction of this court is asked, are set forth in the certificate as follows: “ Clarence H. Myers, plaintiff in error, on the 28th day of April, 1923, then a minor of the age of 20 years, represented to the defendant company that he was 24 years of age, and engaged in the hacking business in the District of Columbia; whereupon he contracted with defendant for a Hudson touring car at the price of $650.00, upon terms set out in a c mditional sales contract. Plaintiff turned in as cash payment a Ford touring car at the price of $250.00, which was subsequently sold by defendant company for that price. Plaintiff subsequently made payments on the contract to the amount of $156.12, making a total payment on the contract of $406.12. “ On October 3, 1923, plaintiff being in default in his payments, defendant company repossessed itself of the Hudson car, under the terms of its sale agreement. Plaintiff attained the age of 21 years on October 21, 1923, and, on the 1st day of November following, disaffirmed his contract and demanded the return of $406.12, the amount paid upon the contract. Upon defendant’s refusal to comply with plaintiff’s request, the present suit was brought in the Municipal Court of the District of Columbia by plaintiff to recover $406.12, the amount paid by him. “ Defendant company set up, as a counter claim, the amount of $525.96, supported by a bill of particulars, showing that this amount was required in the way of repairs and expense >to place the Hudson car in as good condition as it was when sold to plaintiff. The Municipal Court gave judgment upon defendant’s plea of set off for the full amount of $525.96, from which the case was brought to the Court of Appeals on writ of error. 22 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. “ The misrepresenation by plaintiff of his age, supported by evidence that he had the appearance of a man of 24, at the time the contract was made, and the depreciation in the value of the Hudson car from hard and abusive usage, are not denied by plaintiff, and may be accepted for the purpose of this case as conceded facts. Neither does it appear that any deception or misrepresentations were made by the defendant in order to induce the making of the contract, nor that the contract was in any respect an unfair one. Plaintiff rests his case entirely upon his absolute right, on becoming of age, to disaffirm his contract, and recover the amount which he had paid thereon, regardless of any damage the defendant may have sustained, either from his misrepresentation as to his correct age, or from his abusive use of the Hudson car which resulted in the depreciation above set forth.” Two questions are certified: 1. Is the plaintiff, by reason of the misrepresentations as to his correct age, estopped from maintaining an action to recover the amount paid under the conditional sales contract upon the purchase price of the Hudson car? 2. If the plaintiff is not so estopped, may defendant, by way of affirmative defense against plaintiff’s claim, set off the amount paid for the repair of the damaged Hudson car, or so much thereof as will equal plaintiff’s claim? First. In Sims v. Everhardt, 102 U. S. 300, 313, which was a suit in equity, this court said: “Without spending time to look at the reason, the authorities are all one way. An estoppel in pflis is not applicable to infants, and a fraudulent representation of capacity cannot be an equivalent for actual capacity. Brown v. McCune, 5 Sandf. (N. Y.) 224; Keen v. Coleman, 39 Pa. St. 299. A conveyance by an infant is an assertion of his right to convey. A contemporaneous 23 MYERS v. HURLEY MOTOR CO. Opinion of the Court. 18 declaration of his right or of his age adds nothing to what is implied in his deed. An assertion of an estoppel against him is but a claim that he has assented or contracted. But he can no more do that effectively than he can make the contract alleged to be confirmed.” The statement that the authorities are all one way in holding that an estoppel in pais is not—that is to say, is never—applicable to infants, at least of doubtful accuracy when made, is clearly incorrect at the present time. A review shows that many, perhaps the major part, of the state decisions hold that in equity the rule is otherwise. See Bigelow on Estoppel (6th Ed.) 627; 1 Williston on Contracts, § 245. In any event, the most that can be said is that the decisions upon that subject are conflicting and to some degree in confusion. The doctrine of the Everhardt case, however, was followed in MacGreal v. Taylor, 167 U. S. 688, 696, and has been made the basis of decisions in several of the lower federal courts, Bartlett v. Okla. Oil Co., 218 Fed. 380, 391; Alfrey v. Colbert, 168 Fed. 231, 235; Sanger v. Hibbard, 104 Fed. 455, 457; and has become the established federal rule. Likewise it has been accepted and followed by many of the state courts. See, for example, Tobin v. Spann, 85 Ark. 556, 559; Cobbey v. Buchanan, 48 Neb. 391, 394; Kirkham v. Wheeler-Osgood Co., 39 Wash. 415, 424; Alvey v. Reed, 115 Ind. 148, 149. In this state of the matter, we are not disposed now to reexamine the question in the light of the conflict of authority; but, following the Everhardt case, we hold that the doctrine of estoppel in pais cannot be invoked to defeat plaintiff’s action. Second. While adhering to the determination in the Everhardt case, that the doctrine of estoppel in pais does not apply to an infant, we are of the opinion that this does not require us, under the facts of the present case, to deny defendant the benefit of its affirmative defense. 24 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. In the Everhardt case, there was a dismissal by the court below on the ground that it did not appear that there was a disaffirmance by the complainant within a reasonable time after she attained her majority. The bill offered to do equity (p. 301), but this court, in reversing the decree and remanding the cause, expressed no opinion in respect of the equities by which a decree for complainant might be conditioned. The effect of an affirmative defense such as we have here was neither involved nor considered. Whether an infant who fraudulently misrepresents his age and thereby induces the making of a contract can, when he brings a suit in equity in respect of the matter, be compelled to do equity, is a question not concluded by that decision. In MacGreal v. Taylor, supra, after first calling attention to the fact (p. 698) that the opinion in the Everhardt case did not deal with the counter-equities, this court said (p. 700): “A court of equity will look at the real transaction, and will do justice to the adult if it can be done without disregarding or impairing the principle that allows an infant, upon arriving at majority, to disaffirm his contracts made during infancy.” Here the action brought by the quondam infant is one for money had and received—the payments under the disaffirmed contract having been either in money or in property converted into money before the disaffirmance. Such an action, though brought at law, is in its nature a substitute for a suit in equity; and it is to be determined by the application of equitable principles. In other words, the rights of the parties are to be determined as they would be upon a bill in equity. The defendant may rely upon any defense which shows that the plaintiff, in equity and good conscience is not entitled to recover in whole or in part. Rathbone v. Stocking, 2 Barb. 135, 145-147; Barr v. Craig, 2 Dall. 151, 154; Wright v. Butler, 6 Wend. 284, 290; Eddy v. Smith, 13 Wend, 488, MYERS v. HURLEY MOTOR CO. 25 18 Opinion of the Court. 490; Christie v. Durden, 205 Ala. 571, 572; Gifford v. Wilcox, 81 Ind. App. 378, 381. It has been held that where an infant after coming of age seeks the aid of a court of equity to avoid a contract, under which he has received property, and restore to him the possession of obligations with which he has parted, he will be required, wholly irrespective of his own good faith in the transaction, to do equity, which may extend to compelling him to make full satisfaction for the deterioration of the property due to his use or abuse of it. In Gray v. Lessington, 2 Bosw. 257, the plaintiff, alleging her infancy, brought suit to rescind a contract of sale and to cancel a mortgage and unpaid notes. A decree in her favor imposed the condition that she should restore the property and account for the deterioration arising from its use. The court, sustaining this on appeal, said (p. 262): “And when it becomes necessary for her to go into a court of equity, to cancel her obligations, or regain the pledge given for their performance, seeking equity, she must do equity. Making full satisfaction for the deterioration of the property, arising from its use, is doing no-more. Presumptively, she has derived from the use of the property a profit, or benefit, equivalent to such deterioration. Whether that presumption is, under all circumstances, conclusive, it is not necessary to say, since there is nothing in this case to rebut the presumption. The deterioration here, is found to have resulted from the use which she has enjoyed; and if it resulted from an abuse of the property, the plaintiff’s equity is no greater.” The same rule is recognized in Hillyer v. Bennett, 3 Edw. Ch. 222, 225. In that case, after pointing out that the acts and deeds of an infant are voidable at his election, that if sued at law or in equity he may plead his infancy in bar, and that if he has agreed to sell and deliver 26 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. personal property he may disaffirm the contract and bring trover to recover it back, the vice-chancellor said: “ But if, after he comes of age, he seeks to disaffirm and avoid his contract in a court of equity and files his bill there for the purpose of obtaining its aid, in restoring to himself the possession of the property he has parted with, a court of equity must deal with him as it would with any other adult party and require him to do equity before he shall have equity done unto him. He must restore what he received when he parted with the property which he seeks to get back; especially, if it appears that the other dealt with him in ignorance of the fact of his nonage. This equitable and just principle is recognized by Woodworth, J., 7 Cowen, 183, and is warranted by several cases there cited.” See also, 1 Story’s Equity (11th Ed.) §240; Carmen v. Fox Film Corporation, 269 Fed. 928, 931; Rice v. Butler, 160 N. Y. 578; International Land Co. v. Marshall, 22 Okla. 693, 708. How far the equitable maxim, that he who seeks equity must do equity, applies generally in suits brought for relief because of infancy, we need not inquire; nor do we need here to go as far as the authorities just cited. The maxim applies, at least, where there has been, as there was here, actual fraud on the part of the infant. When an infant of mature appearance, by false and fraudulent representations as to his age, has induced another person to sell and deliver property to him, it is against natural justice to permit the infant to recover money paid for the property without first compelling him to account for the injury which his deceit has inflicted upon the other person. Our conclusion that the affirmative defense is available in this action does not rest upon the doctrine of estoppel, though the result may be the same. It recognizes the MYERS v. HURLEY MOTOR CO. 27 18 Opinion of the Court. plaintiff’s right to repudiate his promise and sue for the return of his payments, and his immunity from a plea of estoppel in so doing. Its effect is not to enforce the disaffirmed contract directly or indirectly, but to allow him to invoke the aid of the court to enforce an equitable remedy arising from the disaffirmance, only upon condition that “ seeking equity, he must do equity.” And. the application of the maxim is not precluded because defendant’s claim might not be enforceable in any other manner. 1 Pomeroy’s Equity, § 386; Sturgis v. Champ -neys, 5 Myl. & C. 97, 102; Farmers’ Loan & Trust Co. v. Denver, L. & G. R. Co., 126 Fed. 46, 51. The question remains whether defendant should have judgment for the amount by which its expenditures exceeded plaintiff’s demand. We are not advised of any statutory rule upon the subject applicable in the District of Columbia; and the matter must be determined in accordance with general principles. Thè defense, in effect, is that the plaintiff was guilty of tortious conduct to the injury of the defendant in the transaction out of which his own cause of action arose. In such case it is well settled that the relief is by way of recoupment—that is, that the amount of defendant’s damage can be allowed only in abatement or diminution of plaintiff’s claim— and that defendant cannot, at least in that action, recover any excess. Winder v. Caldwell, 14 How. 434, 443; Dushane v. Benedict, 120 U. S. 630, 642; Ward v. Fellers, 3 Mich. 281, 287-291; Waterman v. Clark et al., 76 Ill. 428, 430; Holcraft v. Mellott, 57 Ind. 539, 544. It follows that the first question should be answered in the negative and the second question in the affirmative, with the qualification that the amount allowed defendant shall not exceed the amount of plaintiff’s claim. It is so ordered. 28 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. BYARS v. UNITED STATES. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 72. Argued November 29, 1926.—Decided January 3, 1927. 1. A state search warrant, based on an information alleging that affiant “ has good reason to believe and does believe defendant has in his possession ” intoxicating liquors and instruments and materials used in the manufacturing of such liquors, can not, under the Fourth Amendment, sustain a federal search of defendant’s house and seizure therein of counterfeit internal revenue stamps. P. 29. 2. Evidences of crime discovered by a federal officer in making a search without lawful warrant may not be used against the victim of the unlawful search where a timely challenge has been interposed. P. 29. 3. Constitutional provisions for the security of person and property are to be liberally construed, and “ it is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.” P. 32. 4. When a federal officer participates officially with state officers in a search, so that in substance and effect it is their joint operation, the legality of the search and of the use in evidence of the things seized, is to be tested, in federal prosecutions, as it would be if the undertaking were exclusively his own. P. 32. 4 F. (2d) 507, reversed. Certiorari (268 U. S. 684) to a judgment of the Circuit Court ■ of Appeals which affirmed a conviction of Byars for unlawful possession of counterfeit “ strip ” stamps. Mr. Claude R. Porter for the petitioner, submitted. Mr. Gardner P. Lloyd, Special Assistant to the Attorney General, with whom Solicitor General Mitchell was on the brief, for the United States. Mr. Justice Sutherland delivered the opinion of the Court. Petitioner was%convicted in the federal district court for the southern district of Iowa upon two counts for unlaw- 29 BYARS v. UNITED STATES. Opinion of the Court. 28 fully having in his possession with fraudulent intent certain counterfeit strip stamps of the kind used upon whiskey bottled in bond. The stamps were admitted in evidence oven the objection of petitioner that they had been obtained by an unlawful search and seizure. A timely motion previously made by the petitioner to return or impound the stamps was overruled. The judgment of conviction was affirmed by the court of appeals. 4 F. (2d) 507. The stamps were found in executing a search warrant issued by the judge of a state municipal court and addressed to “ any peace officer of Des Moines, Polk County, Iowa,” directing search for intoxicating liquors and instruments and materials used in the manufacture of such liquors. The information upon which the search warrant was issued states only that affiant “ has good reason to believe and does believe the defendant has in his possession ” such intoxicating liquors, instruments and materials. The warrant clearly is bad if tested by the Fourth Amendment and the laws of the United States. C. 30, Title XI, §§ 3-0, 40 Stat. 217, 228-229; c. 85, Title II, § 2, 41 Stat. 305, 308. See Ripper v. United States, 178 Fed. 24, 26; United States v. Borkowski, 268 Fed. 408, 410-411; United States v. Kelly, 277 Fed. 485, 486-489. Whether it is good under the state law it is not necessary to inquire^ since in no event could it constitute the basis for a federal search and seizure, as, under the facts hereinafter stated, it is insisted this was. Nor is it material that the search was successful in revealing evidence of a violation of a federal statute. A search prosecuted in violation of the Constitution is not made lawful by what it brings to light; and the doctrine has never been recognized by this Court, nor can it be tolerated under our constitutional system, that evidences of crime discovered by a federal officer in making a search without lawful warrant may be used against the victim of 30 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. the unlawful search where a timely challenge has been interposed. Weeks v. United States, 232 U. S. 383, 393; Gouled v. United States, 255 U. S. 298, 306; Amos v. United States, 255 U. S. 313; Silverthorne Lumber Co. v. United States, 251 U. S. 385, 391; Agnello v. United States, 269 U. S. 20, 33. The warrant directs the officer to search certain described premises and, if any of the liquors, instruments or materials set forth in the information are found, to seize the same and keep them until final action be had thereon. It was put into the hands of Mr. Densmore, a local officer in charge of the night liquor bureau of the police station in Des Moines, Iowa, and he, together with three others, proceeded to make the search in circumstances which can best be shown by quoting from the testimony given upon the hearing of the motion to impound or return the property seized. Mr. Densmore testified as follows: “As I came down stairs, I asked the Captain about Mr. Adams who was there, and I asked him to go with me. Mr. Adams is the Federal Prohibition Agent, stationed here in Des Moines, Iowa, an officer of the government, operating under the Treasury Department. I met him after the warrant had been sued out, and asked him to go with me. I had the warrant at that time. It was in the police station of the city that I met Mr. Adams and requested him to come along. I had not discussed this case with Mr. Adams before that. He went with me from the city building on the search. As far as I know, he did not have any warrant or any authority to go into that residence other than the authority that I may have given him under the warrant I had. The search and seizure was made entirely upon the authority of the warrant that I had obtained at the City Hall. Arriving at the residence, I assigned each man a room. I assigned Adams a room. We found no intoxicating liquors there. The only thing that we found that we took were the stamps in- 31 BYARS v. UNITED STATES. Opinion of the Court. 28 volved in this case. Mr. Taylor found part of them, and Mr. Adams found part of them. Mr. Adams kept the stamps he found in his possession and those found by Mr. Taylor were turned over to him right at that time. The ones that Adams found and the ones that were given to him were taken possession of by Adams right there in the house of A. J. Byars, immediately after the service. Neither myself or any of the other city officers had possession of those stamps after that evening. There was never any prosecution attempted in the city courts or such courts as I was connected with so far as these stamps were involved.” Mr. Adams, the federal prohibition agent, testified: “ I remember assisting in the search of the residence of A. J. Byars on the 22nd day of April, 1924. Officers Densmore, Taylor, DeHaven and Davis were with me. I met them in the Captain’s office at the police station in the city of Des Moines and accompanied them to make the search. I had no authority for going into the house other than the search warrant that the officers had secured from the state authorities. The only authority that I had for going into the house of Mr. Byars was on account of the search warrant that Mr. Densmore had. I searched the kitchen. I found some of the stamps that were involved in this case there in the kitchen. I took possession of them then and there, and have retained them ever since. I have retained the stamps that I found and those that were handed me there in the house. I was not present with Mr. Taylor in the room when he found the stamps, but they were brought to me in the dining room by Mr. Taylor, and I took possession of them then and there, and I have retained possession of all the stamps from that time until this. They were never delivered to the state officers or used by them. I do not know of any violation of any state law that they could be used for. I knew there was no state law governing the possession of 32 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. these stamps, and as a Federal Officer, I took possession of what I found, and those found by the State Officer, and have had them in my possession ever since and receipted to the Police officers at the Station that evening after the return from the raid, for the stamps found.” While it is true that the mere participation in a state search of one who is a federal officer does not render it a federal undertaking, the court must be vigilant to scrutinize the attendant facts with an eye to detect and a hand to prevent violations of the Constitution by circuitous and indirect methods. Constitutional provisions for the security of person and property are to be liberally construed, and “ it is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.” Boyd v. United States, 116 U. S. 616, 635; Gouled v. United States, supra, p. 304. The attendant facts here reasonably suggest that the federal prohibition agent was not invited to join the state squad as a private person might have been, but was asked to participate and did participate as a federal enforcement officer, upon the chance, which was subsequently realized, that something would be disclosed of official interest to him as such agent. The house to be searched contained only four rooms—a dining room, a kitchen and two bedrooms. We are not prepared to accept the view that the local officer thought a force of four men would be insufficient to search these limited premises; and it is significant, in that connection, that he did not ask his superior officer for additional help, but inquired particularly for Adams, who, he knew, was the federal agent. The stamps found were not within the purview of the state search warrant, nor did they relate in any way to a violation of state law. Those found by the agent were held by him as of right and without question; those found by the state officer were considered by both the local officer 33 BYARS v. UNITED STATES. Opinion of the Court. 28 in charge and the federal agent as things which concerned the federal government alone and then and there were surrendered to the exclusive possession of the federal agent,—a practical concession that he was present in his federal character. We cannot avoid the conclusion that the participation of the agent in the search was under color of his federal office and that the search in substance and effect was a joint operation of the local and federal officers. In that view, so far as this inquiry is concerned, the effect is the same as though he had engaged in the undertaking as one exclusively his own. Similar questions have been presented in a variety of forms to the lower federal courts, but nothing is to be gained by attempting to review the decisions, since each of them rests, as the present case does, upon its own peculiar facts. But see and compare Flagg v. United States, 233 Fed. 481, 483; United States v. Slusser, 270 Fed. 818, 820; United States v. Falloco, 277 Fed. 75, 82; Legman v. United States, 295 Fed. 474, 476-478; Marron v. United States, 8 F. (2d) 251, 259; United States v. Brown, 8 F. (2d) 630, 631. We do* not question the right of the federal government to avail itself of evidence improperly seized by state officers operating entirely upon their own account. But the rule is otherwise when the federal government itself, through its agents acting as such, participates in the wrongful search and seizure. To hold the contrary would be to disregard the plain spirit and purpose of the constitutional prohibitions intended to secure the people against unauthorized official action. The Fourth Amendment was adopted in view of long misuse of power in the matter of searches and seizures both in England and the colonies; and the assurance against any revival of it, so carefully embodied in the fundamental law, is not to be impaired by judicial sanction of equivocal methods, 42847°—27---3 34 OCTOBER TERM, 1926. Counsel for Parties. 273 U. S. which, regarded superficially, may seem to escape the challenge of illegality but which, in reality, strike at the substance of the constitutional right. Judgment reversed. DI SANTO v. PENNSYLVANIA. ERROR TO THE SUPREME COURT OF THE STATE OF PENNSYLVANIA. No. 288. Argued October 27, 1926.—Decided January 3, 1927. A state law requiring persons, other than railroad or steamship companies, who engage within the State in the sale of steamship tickets or orders for transportation to or from foreign countries, to procure a license, by giving proof of moral character, paying a small annual fee, and filing a bond as security against fraud or misrepresentation to purchasers, is a direct burden on foreign commerce, contravening the commerce clause of the Constitution, and cannot be sustained as a proper exercise of the state police power to prevent possible fraud. P. 35. So held as applied to one who was authorized by four steamship companies to sell their tickets at a specified place and who was supplied by them with tickets, advertising matter, schedules of sailings, and other information, and authorized by them to collect the money for the tickets sold and required to give bonds to the respective companies and to account to each for moneys received for its tickets, less a percentage for his remuneration. 285 Pa. 1, reversed. Error to a judgment of the Supreme Court of Pennsylvania, sustaining a conviction of Di Santo, for selling steamship tickets without first having procured a license as required by a law of that State. Messrs. William H. Neely and John H. Neely, Jr., for the plaintiff in error. Messrs. Philip S. Moyer and E. Le Roy Keen, with whom Mr. George W. Woodruff, Attorney General of Pennsylvania, was on the brief, for the defendant in error. DI SANTO v. PENNSYLVANIA. 35 34 Opinion of the Court. Mr. Justice Butler delivered the opinion of the Court. Plaintiff in error was indicted in the Court of Quarter Sessions of Dauphin County, Pennsylvania, for a violation of an Act of the Legislature of July 17, 1919, as amended by the Act of May 20, 1921, P. L. 997, requiring licenses to sell steamship tickets or orders for transportation to or from foreign countries. The indictment alleged that, December 14, 1921, without having obtained a license so to do, plaintiff in error held himself out as authorized to sell tickets and orders for transportation as agent of certain steamship companies, and that he engaged in the sale of such tickets. There was no controversy as to the facts; and, by direction of the court, the jury returned a verdict of guilty. Plaintiff in error, by motion in arrest of judgment, challenged the validity of the Act on the ground that it contravenes the commerce clause of the Federal Constitution. The court held the statute valid, and sentenced him to pay a fine. On appeal the Superior Court held the Act unconstitutional and reversed the judgment. The Supreme Court reversed the Superior Court and reinstated the judgment of the trial court. The case is here under § 237(a) of the Judicial Code. The Act of 1921 provides that no person or corporation, other than a railroad or steamship company, shall engage within the State in the sale of steamship tickets or orders for transportation or shall hold himself out as authorized to sell such tickets or orders without having first procured a license. It requires every applicant to cause his application to be advertised in specified publications, to furnish proof that he is of good moral character and fit to conduct the business, to give a list of the steamship lines, not less than three, for which he is agent, and to file a bond in the penal sum of $1,000 conditioned that he will account to all interested persons for moneys received for tickets and orders and that he will not be guilty 36 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. of any fraud or misrepresentation to purchasers. The license is granted on approval of the Commissioner of Banking and payment of a fee of $50.00, and may be renewed on payment of a like fee annually. The license may be revoked for fraud, misrepresentation, or failure to account. Any person carrying on this business without license is declared guilty of a misdemeanor and liable to fine or imprisonment or both. The state Supreme Court declared that the Act is one to prevent fraud; and held that it does not require an agent or servant of the steamship companies to have a license, but that plaintiff is not such an agent, and that he occupies a position in the nature of an independent contractor, and is required to obtain a license. Plaintiff represented four steamship companies operating steamships between the United States and Europe. Each of them gave him a certificate authorizing him to sell, at a specified place in Harrisburg, tickets and orders for transportation entitling persons therein named to passage on such steamships; and required the certificate to be posted in his office. This is in accordance with the Pennsylvania Act of 1863, P. L. 582, regulating the display of certificates by steamship agents; and a copy of that Act was printed on the certificate. The companies furnished plaintiff in error books of tickets having stubs on which to make record of tickets sold, advertising matter to be used by him, schedules of sailings, notices of cancelations of sailings, and information as to the immigration and customs services; and they authorized him to collect money for tickets sold. He usually received 25 per cent, of the price when applications were made for the tickets. He gave each company a bond to account; and transmitted immediately to his respective principals the amounts received by him. The soliciting of passengers and the sale of steamship tickets and orders for passage between the United States DI SANTO v. PENNSYLVANIA. 37 34 Brandeis and Holmes, J. J., dissenting. and Europe constitute a well-recognized part of foreign commerce. See Davis v. Farmers Co-operative Co., 262 U. S. 312, 315. A state statute which by its necessary operation directly interferes with or burdens foreign commerce is a prohibited regulation and invalid, regardless of the purpose with which it was passed. Shafer v. Farmers Grain Co., 268 U. S. 189, 199, and cases cited. Such legislation cannot be sustained as an exertion of the police power of the State to prevent possible fraud. Real Silk Mills v. Portland, 268 U. S. 325, 336. The Congress has complete and paramount authority to regulate foreign commerce and, by appropriate measures, to protect the public against the frauds of those who sell these tickets and orders. The sales here in question are related to foreign commerce as directly as are sales made in ticket offices maintained by the carriers and operated by their servants and employees. The license fee and other things imposed by the Act on plaintiff in error, who initiates for his principals a transaction in foreign commerce, constitute a direct burden on that commerce. This case is controlled by Texas Transport Co. v. New Orleans, 264 U. S. 150, and McCall v. California, 136 U. S. 104. Judgment reversed. Mr. Justice Brandeis, with whom Mr. Justice Holmes concurs, dissenting. The statute is an exertion of the police power of the State. Its evident purpose is to prevent a particular species of fraud and imposition found to have been practiced in Pennsylvania upon persons of small means, unfamiliar with our language and institutions.1 Much of the 1A similar statute had been enacted in New York, with the approval of Governor (afterwards Mr. Justice) Charles E. Hughes. Laws of New York 1910, c. 349, amended by Laws of New York 1911, c. 578. And similar laws have been enacted also in other States. Indiana, Burns’ Ann. Stat. 1926, §§ 4681-4685; Michigan, Cahill’s Comp. OCTOBER TËRM, 1Ô2Ô. Brandeis and Holmes, J. J., dissenting. 273 U. S. immigration into the United States is effected by arrangements made here for remittance of the means of travel. The individual immigrant is often an advance guard. After gaining a foothold here, he has his wife and children, aged parents, brothers, sisters or other relatives follow. To this end he remits steamship tickets or orders for transportation. The purchase of the tickets involves trust in the dealer. This is so not only because of the nature of the transaction, but also because a purchaser when unable to pay the whole price at one time makes successive deposits on account, the ticket or order not being delivered until full payment is made. The facilities for remitting both cash and steamship tickets are commonly furnished by private bankers of the same nationality as the immigrant. It was natural that the supervision of persons engaged in the business of supplying steamship tickets should be committed by the statute to the Commissioner of Banking.* 2 Although the purchase made is of an ocean steamship ticket, the transaction regulated is wholly intrastate—as much so as if the purchase were of local real estate or of local theatre tickets. There is no purpose on the part of Laws Mich. Ann. Supp. 1922, § 7164(1)-7164(9); Ohio Gen. Code, §§ 710-183-710-187. 2 In 1910 there were 410 of such banking businesses in Pennsylvania. Report of Immigration Commission, vol. 37, p. 209. The Commission found, also, that of the businesses (in Pennsylvania and elsewhere) examined by it, “ 94 per cent, of the concerns engaged in the business of selling steamship tickets were at the same time engaged in the business of immigrant banking. This shows that the relation between the two is so close as to warrant the classification of them as interdependent. . . . Having made the start, it is natural that he should continue to leave with the agent for safe-keeping his weekly or monthly surplus, so that he may accumulate a sufficient amount for another remittance or for the purpose of buying a steamship ticket to bring his family to this country or for his own return to Europe.” Ibid., p. 212. 39 DI SANTO v. PENNSYLVANIA. Brandeis and Holmes, J. J., dissenting. 34 the State to regulate foreign commerce. The statute is not an obstruction to foreign commerce. It does not discriminate against foreign commerce. It places no direct burden upon such commerce. It does not affect the commerce except indirectly. Congress could, of course, deal with the subject, because it is connected with foreign commerce. But it has not done so. Nor has it legislated on any allied subject. Thus, there can be no contention that Congress has occupied the field. And obviously, also, this is not a case in which the silence of Congress can be interpreted as a prohibition of state action—as a declaration that in the sale of ocean steamship tickets fraud may be practiced without let or hindrance. If Pennsylvania must submit to seeing its citizens defrauded, it is not because Congress has so willed, but because the Constitution so commands. I cannot believe that it does. Unlike the ordinance considered in Texas Transport Co. v. New Orleans, 264 U. S. 150, this statute is not a revenue measure. The license fee is small. The whole of the proceeds is required to defray the expense of supervising the business. Unlike the measure considered in Real Silk Mills v. Portland, 268 U. S. 325, 336, this statute is not an instrument of discrimination against interstate or foreign commerce. Unlike that considered in Shafer v. Farmers Grain Co., 268 U. S. 189, 199, it does not affect the price of articles moving in interstate commerce. The licensing and supervision of dealers in steamship tickets is in essence an inspection law. Compare Turner v. Maryland, 107 U. S. 38. The fact that the sale of the ticket is made as a part of a transaction in foreign or interstate commerce does not preclude application of state inspection laws, where, as here Congress has not entered the field, and the state regulation neither obstructs, discriminates against, or directly burdens the commerce. Patapsco Guano Co. v. Board of Agriculture, 171 U, 8. 345; Diamond Glue Co. v. 40 OCTOBER TERM, 1926. Brandeis and Holmes, J. J., dissenting. 273 U. S. United States Glue Co., 187 U. S. 611; McLean v. Denver & Rio Grande R. R. Co., 203 U. S. 38, 54; Red “C” Oil Mjg. Co. v. Board oj Agriculture, 222 U. S. 380; Savage v. Jones, 225 U. S. 501; Sligh v. Kirkwood, 237 U. S. 52, 62; Merchants Exchange v. Missouri, 248 U. S. 365; Pure Oil Co. v. Minnesota, 248 U. S. 158; Hebe Co. v. Shaw, 248 U. S. 297; Weigle v. Curtice Brothers Co., 248 U. S. 285; Armour Co. v. North Dakota, 240 U. S. 510; Corn Products Refining Co. v. Eddy, 249 U. S. 427; Crescent Oil Co. v. Mississippi, 257 U. S. 129. To require that the dealer in tickets be licensed in order to guard against fraud in the local sale of tickets certainly affects interstate or foreign commerce less directly than to provide a test of the locomotive engineer’s skill, Smith v. Alabama, 124 U. S. 465; or eyesight, Nashville, Chattanooga, & St. Louis Ry. v. Alabama, 128 U. S. 96; or requiring that passenger cars be heated and guard posts placed on bridges, N. Y., N. H., & H. R. R. Co. v. New York, 165 U. S. 628; or requiring every railway to cause three of its regular passenger trains to stop each way daily at every village containing over three thousand inhabitants, Lake Shore cfc Michigan Southern R. ,R. Co. v. Ohio, 173 U. S. 285; or to require trains to limit within a city their speed to six miles an hour, Erb v. Morasch, 177 U. S. 584; or to establish a standard for the locomotive headlight, Atlantic Coast Line R. R. v. Georgia, 234 U. S. 280; or to prescribe “full crews,” Chicago, Rock Island & Pacific Ry. v. Arkansas, 219 U. S. 453; St. Louis, Iron Mountain and Southern Ry. Co. v. Arkansas, 240 U. S. 518; or to compel the providing of separate coaches for whites and colored persons, South Covington, etc., Ry. v. Kentucky, 252 U. S. 399; or to compel a railroad to eliminate grade crossings, although the expense involved may imperil its solvency, Erie R. R. Co. v. Public Utility Commissioners, 254 U. S. 394, 409-412—state requirements sustained by this Court. See also Engel v. O’Malley, 219 U. S. 128, 138, 41 DI SANTO v. PENNSYLVANIA. Brandeis and Holmes, J. J., dissenting. 34 It is said that McCall v. California, 136 U. S. 104, requires that the Pennsylvania statute be held void. McCall was an employee of the railroad, not an independent solicitor or dealer. Di Santo, as the state court found the facts, was not an employee of a steamship company, nor an agent authorized to act for one; and it ruled, as a matter of statutory construction, that, if he had been such, he would not have been required by the statute to be licensed. It found him to be an independent dealer or contractor, “ a free lance ” authorized by the several steamship companies “ to sell tickets or orders entitling the persons therein named to passage upon steamers,” but “with no obligation to any particular company,” except to remit the net amount payable by him to the company for a ticket or order sold. ' Moreover, the fee imposed by the San Francisco ordinance was an occupation tax, not an inspection fee. Here, the Pennsylvania court found that the statute did not produce any revenue. On the facts, the McCall case is distinguishable from that at bar. If, because of its reasoning, it is thought not to be distinguishable, it should be disregarded. The doctrine of stare decisis presents no obstacle. Disregard of the McCall case would not involve unsettlement of any constitutional principle or of any rule of law, properly so called. It would involve merely refusal to repeat an error once made in applying a rule of law—an error which has already proved misleading as a precedent. While the question whether a particular statute has the effect of burdening interstate or foreign commerce directly presents always a question of law, the determination upon which the validity or invalidity of the statute depends, is largely or wholly one of fact. The rule of law which governs the McCall case and the one at bar is the same. It is that a State may not obstruct, discriminate against, or directly burden interstate or foreign commerce. The question at bar is whether, as applied to existing facts, 42 OCTOBER TERM, 1926. Brandeis and Holmes, J. J., dissenting. 273 U. S. this particular statute is a direct burden. The decision as to state regulations of this character, depends often, as was said in Southern Railway v. King, 217 U. S. 524, 533, “ upon their effect upon interstate commerce.” In that case, the Georgia blow post law was held constitutional, as not being a direct burden. In Seaboard Air Line Ry. v. Blackwell, 244 U. S. 310, the same statute was held, on other facts, to be void, because shown to be a direct burden. Each case required the decision of the question of law. Each involved merely an appreciation of the facts. Neither involved the declaration of a rule of law. It is usually more important that a rule of law be settled, than that it be settled right. Even where the error in declaring the rule is a matter of serious concern, it is ordinarily better to seek correction by legislation. Often this is true although the question is a constitutional one. The human experience embodied in the doctrine of stare decisis teaches us, also, that often it is better to follow a precedent, although it does not involve the declaration of a rule. This is usually true so far as concerns a particular statute whether the error was made in construing it or in passing upon its validity. But the doctrine of stare decisis does not command that we err again when we have occasion to pass upon a different statute. In the search for truth through the slow process of inclusion and exclusion, involving trial and error, it behooves us to reject, as guides, the decisions upon such questions which prove to have been mistaken. This course seems to me imperative when, as here, the decision to be made involves the delicate adjustment of conflicting claims of the Federal Government and the States to regulate commerce.3 3 See “ The Compact Clause of the Constitution.—A Study in Interstate Adjustments,” by Felix Frankfurter and James M. Landis, 34 Yale Law Journal 685, 720-725, and cases there cited; “Judicial Determination of Questions of Fact Affecting the Constitutional Validity of Legislative Action,” by Henry Wolf Bikie, 38 Harvard Law Review 6. 43 DI SANTO v. PENNSYLVANIA. Stone, J., dissenting. 34 The many cases on the Commerce Clause in which this Court has overruled or explained away its earlier decisions show that the wisdom of this course has been heretofore recognized.4 In the case at bar, also, the logic of words should yield to the logic of realities. Mr. Justice Stone, dissenting. I agree with all that Mr. Justice Brandeis has said, but I would add a word with respect to one phase of the matter which seems to me of some importance. We are not here concerned with a question of taxation to which other considerations may apply, but with state regulation of what may be conceded to be an instrumentality of foreign commerce. As this Court has many times decided, the purpose of the commerce clause was not to preclude all state regulation of commerce crossing state 4 See Pierce v. New Hampshire, 5 How. 504, 554, overruled by Leisy v. Hardin, 135 U. S. 100, 118; Osborne v. Mobile, 16 Wall. 479, overruled by Leloup v. Port of Mobile, 127 U. S. 640, 647-648. See State Tax on Railway Gross- Receipts, 15 Wall. 284, qualified by Philadelphia S. S. Co. v. Pennsylvania, 122 U. S. 326, 342; Peik v. C. & N. W. Ry. Co., 94 U. S. 164, qualified by Wabash, St. L. & Pac. Ry. Co. v. Illinois, 118 U. S. 557; Pullman’s Palace Car Co. v. Pennsylvania, 141 U. S. 18, qualified in Union Tank Line Co. v. Wright, 249 U. S. 275; Maine v. Grand Trunk Ry. Co., 142 U. S. 217, qualified in Galveston, Harrisburg & San Antonio Ry. Co. v. Texas, 210 U. S. 217; Texas Co. v. Brown, 258 TJ. S. 466; Bowman v. Continental Oil Co., 256 U. S. 642; Askren v. Continental Oil Co., 252 U. S. 444, and Standard Oil Co. v. Graves, 249 U. S. 389, all qualified in Sonneborn Bros. v. Cureton, 262 U. S. 506. Compare the discussion of City of New York v. Miln, 11 Pet. 101, in Passenger Cases, 7 How. 283; that of Ficklenv. Shelby County Taxing District, 145 U. S. 1, in Crew Levick Co. v. Pennsylvania, 245 U. S. 292, 296, and in Texas Transport Co. v. New Orleans, 264 U. S. 150; that of Gulf, Colorado & Santa Fe Ry. Co. v. Texas, 204 U. S. 403, in Baltimore & Ohio Southwestern R. R. Co. v. Settle, 260 U. S. 166, 173; that of Baltic Mining Co. v. Massachusetts, 231 U. S. 68, in Alpha Cement Co. v. Massachusetts, 268 U. S. 203. 44 OCTOBER TERM, 1926. Stone, J., dissenting. 273 U. S. lines, but to prevent discrimination and the erection of barriers or obstacles to the free flow of commerce, interstate or foreign. The recognition of the power of the states to regulate commerce within certain limits is a recognition that there are matters of local concern which may properly be subject to state regulation and which, because of their local character, as well as their number and diversity, can never be adequately dealt with by Congress. Such regulation, so long as it does not impede the free flow of commerce, may properly be and for the most part has been left to the states by the decisions of this Court. In this case the traditional test of the limit of state action by inquiring whether the interference with commerce is direct or indirect seems to me too mechanical, too uncertain in its application, and too remote from actualities, to be of value. In thus making use of the expressions, “ direct ” and “ indirect interference ” with commerce, we are doing little more than using labels to describe a result rather than any trustworthy formula by which it is reached. It is difficult to say that such permitted interferences as those enumerated in Mr. Justice Brandeis’ opinion are less direct than the interference prohibited here. But it seems clear that those interferences not deemed forbidden are to be sustained, not because the effect on commerce is nominally indirect, but because a consideration of all the facts and circumstances, such as the nature of the regulation, its function, the character of the business involved and the actual effect on the flow of commerce, lead to the conclusion that the regulation concerns interests peculiarly local and does not infringe the national interest in maintaining the freedom of commerce across state lines. I am not persuaded that the regulation here is more than local in character or that it interposes any barrier INTERSTATE BUSSES v. HOLYOKE RY. 45 34 Statement of the Case. to commerce. Until Congress undertakes the protection of local communities from the dishonesty of the sellers of steamship tickets, it would seem that there is no adequate ground for holding that the regulation here involved is a prohibited interference with commerce. Mr. Justice Holmes and Mr. Justice Brandeis concur in this opinion. INTERSTATE BUSSES CORPORATION v. HOLYOKE STREET RAILWAY COMPANY. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. No. 343. Argued October 27, 28, 1926.—Decided January 3, 1927. 1. The Massachusetts law requiring a license and a certificate of public convenience and necessity for such operation of motor vehicles on public highways for intrastate carriage of passengers for hire as affords a means of transportation similar to that afforded by a railway company, is not shown in this case to work a direct interference with or burden upon the interstate business of the plaintiff bus company, which carries both interstate and intrastate passengers. P. 50. 2. The burden is upon the plaintiff bus company to prove that the enforcement of the act would prejudice its interstate passenger business. P. 51. 3. The act cannot be evaded by unnecessarily using the same vehicles and employees for both classes of passengers. P. 51. 4. A State has power reasonably to regulate and control the use of its public highways in the public interest, not directly burdening or interfering with interstate commerce. P. 52. 5. The Massachusetts act is not arbitrary or unreasonable; and the plaintiff, not having applied for a license under it, had no standing to attack its validity under the due process clause of the Fourteenth Amendment. P. 52. Affirmed. Appeal from a decree of the District Court dismissing the bill in a suit by the plaintiff bus company to enjoin 46 OCTOBER TERM, 1926. Argument for Appellant. 273 U. S. the defendants—a street railway company, some of its officers, and various public prosecuting officials of Massachusetts—from taking steps to enforce a Massachusetts statute regulating common carriers of passengers by motor vehicle. Mr. Edward H. Kelly for the appellant. Appellant is engaged in interstate commerce in the transportation of passengers between Hartford, Connecticut, and Greenfield, Massachusetts. Persons traveling on appellant’s vehicles from Connecticut cannot be carried by motor bus north of Springfield unless appellant transports them, because local operation is prohibited without obtaining the licenses, permits and certificates prescribed by Chapter 159, Section 45, General Laws of Massachusetts, as amended by Chapter 280 of the Laws of 1925. Appellant has undertaken to transport its interstate passengers to destination by the mode of transportation they have chosen in Connecticut, but can only do it at a loss and in partly empty vehicles, unless it is permitted to accommodate on the same vehicles such local traffic as is offered. Appellant not only is deprived of the revenue earned in carrying its interstate travelers north of Springfield, but travelers from Connecticut points wishing to go north of Springfield, will not patronize appellant’s busses in Connecticut owing to inconvenience of changing to some other mode of travel in Springfield and vice versa; so that the enforcement of this law necessarily imposes on plaintiff a large loss of revenue from interstate traffic in addition to that which might be received from local traffic. If the requirements of Chapter 159 are held to apply to the business done by appellant, then it must be conceded that it restricts, burdens and impedes interstate commerce. Pullman Co. v. Kansas, 216 U. S. 56; Western Union Tel. Co, v. Kansas, 216 U. S, 1, INTERSTATE BUSSES v. HOLYOKE RY. 47 45 Argument for Appellant. Under the rule of the Kansas cases, Massachusetts could not pass a law imposing a tax on appellant’s entire capital stock or otherwise burdening its interstate business as a condition of permitting it to do a local business. Can it then prohibit it entirely from doing such business, or can it prohibit such local business on interstate vehicles, except on condition that appellant obtain a license from every city and town through which its vehicles pass on their interstate journey? Has it power to prohibit local business entirely and yet remain powerless to annex to its permission to do local business an unconstitutional condition? Would it be any more a burden on interstate commerce to grant permission to do a local business only on condition of paying an unconstitutional tax or submitting to confiscatory rates for such business than to prohibit local business entirely? Is the latter less of a burden than the former? Would a law or regulation of Massachusetts be held constitutional, which prohibited a railroad from carrying passengers upon its interstate trains between Springfield and Boston, without first obtaining a license from each town through which the train passed, and a certificate from the State Public Utilities Commission? Or could it entirely forbid the railroad from carrying passengers between points within the State upon interstate trains? The error of Barrows v. Farnum State Lines, 254 Mass. 240, and related cases is in treating this regulation as a general police regulation. Herndon v. Chicago, 218 U. S. 157. In giving consideration to the respective spheres of state and federal control of commerce no analogy can be drawn from their respective powers in the matter of levying taxes. Gibbons v. Ogden, 9 Wheat. 1. The District Court erred in holding that the business carried on by this plaintiff came within the purview of Chapter 159, as amended. 48 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. That Act, if held applicable, is in conflict with the Fourteenth Amendment in that it provides no appeal from an arbitrary and unreasonable exercise of power, and in that it permits suits and prosecutions so numerous, and the imposition of so many different fines and penalties, as to compel submission to the arbitrary exercise. As a police regulation applicable to interstate commerce, Chapter 159 must be held to be unreasonable. Mr. David H. Keedy, with whom Mr. William H. Brooks was on the brief, for the appellees. Mr. Justice Butler delivered the opinion of the Court. This suit was brought by appellant against the Holyoke Street Railway Company, its president and general manager, police and prosecuting officers of a number of cities and towns, the chief of the state police, and the district attorneys of the Western and’Northern Districts of Massachusetts. Its purpose is to restrain the enforcement of a state statute relating to common carriers of passengers by motor vehicles as in conflict with the commerce clause of the Constitution of the United States and with the due process clause of the Fourteenth Amendment. The case was heard before a court of three judges (§266, Judicial Code) on an agreed statement of facts; and a final decree dismissing the complaint was entered. Sections 45, 48A and 49 of c. 159, General Laws, as amended by c. 280, Acts of 1925, contain the provisions attacked: No person shall operate a motor vehicle upon a public way in any city or town for the carriage of passengers for hire so as to afford a means of transportation similar to that afforded by a railway company by indiscriminately receiving and discharging passengers along the route on which the vehicle is operated, or as a business between fixed and regular termini, without first obtaining a license. The licensing authority in a city is its council, INTERSTATE BUSSES v. HOLYOKE RY. 49 45 Opinion of the Court. in a town is its selectmen; and, as to public ways under its control, is the metropolitan district commission. No person shall operate a motor vehicle under such license unless he has also obtained from the Department of Public Utilities a certificate that public convenience and necessity require such operation. Anyone operating under a license from local authority and a certificate from the department is declared to be a common carrier and subject to regulation as such. Violations of §§45-48 or of any order, rule or regulation made under them are punishable by fine or imprisonment or both. And the Act gives to the Supreme Judicial and Superior Courts jurisdiction in equity to restrain any violation upon petition of the department, any licensing authority, ten citizens of a city or town affected by the violation, or any interested party. Neither license nor certificate is required in respect of such carriage as may be exclusively interstate. The material facts stipulated are: For many years, the appellee Holyoke Street Railway Company has been a common carrier of passengers by street railway in Massachusetts through Holyoke, South Hadley, Granby, Amherst and into Sunderland. Appellant is engaged in the business of transporting passengers for hire by motor vehicle, and operates busses between Hartford, Connecticut, and Greenfield, Massachusetts. It has operated its busses between Hartford and Springfield since December 1, 1924, and north of Springfield to Greenfield since about December 15, 1925. Its route in Massachusetts passes through Springfield, West Springfield, Holyoke, Granby, Amherst, Sunderland, Deerfield and Greenfield. With certain exceptions not here material, all its busses run the whole distance between Hartford and Greenfield. It transports persons from one State into the other, and also those whose journeys begin and end in Massachusetts. Both classes of passengers, intrastate and inter- 42847°—27---4 50 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. state, are carried in the same vehicles. Intrastate passengers constitute a very substantial part of the whole number carried in Massachusetts. Appellant maintains an office and garage at Springfield and advertises its route and rates. The busses are operated between fixed termini in Massachusetts. They operate regularly on public ways parallel to and alongside the tracks of the street railway company and afford means of transportation similar to those furnished by that company. They stop regularly and also on signal to receive and discharge passengers. The operation of the busses in competition with the street railway has resulted in substantial loss to the latter. Appellant has not obtained a license from any of the cities or towns served by the street railway company. And that company, its president and counsel have caused plaintiff’s employees to be arrested and prosecuted and intend to continue to prosecute them for operating without obtaining the licenses and certificate required by the statute. The statutory provisions in question have been sustained by the highest court of Massachusetts. New York, N. H. & H. Railroad v. Deister, 253 Mass. 178; Barrows v. Farnum’s Stage Lines, 254 Mass. 240; Boston & M. R. R. v. Cate, 254 Mass. 248; Boston & M. R. R. v. Hart, 254 Mass. 253; Commonwealth, v. Potter, 254 Mass. 520. And these decisions were followed by the district court in this case. Appellant’s principal contention is that the Act contravenes the commerce clause. If as applied it directly interferes with or burdens appellant’s interstate commerce, it cannot be sustained regardless of the purpose for which it was passed. See Shafer v. Farmers Grain Co., 268 U. S. 189, 199; Real Silk Mills v. Portland, 268 U. S. 325, 336; Colorado v. United States, 271 U. S. 153, 163; Di Santo v. Pennsylvania, ante, p. 34. The Act existed in some form before interstate transportation of pas- INTERSTATE BUSSES v. HOLYOKE RY. 51 45 Opinion of the Court. sengers for hire by motor vehicle was undertaken. Its purpose is to regulate local and intrastate affairs. Barrows v. Farnum’s Stage Lines, supra. No license from local authorities or certificate of public convenience and necessity is required in respect of transportation that is exclusively interstate. Cf. Buck v. Kuykendall, 267 U. S. 307; Bush Co. v. Maloy, 267 U. S. 317. The burden is upon appellant to show that enforcement of the Act operates to prejudice interstate carriage of passengers. The stipulated facts do not so indicate. The threatened enforcement is to prevent appellant from carrying intrastate passengers without license over that part of its route which is parallel to the street railway. Its right to use the highways between Springfield and Hartford is not in controversy. While it appears that in Massachusetts both classes of passengers are carried in the same vehicles, it is not shown what part of the total number are intrastate or interstate. The record contains no information as to the number of persons, if any, travelling in interstate commerce on appellant’s busses over the part of the route competing with the street railway. It is not shown that the two classes of business are so commingled that the separation of one from the other is not reasonably practicable or that appellant’s interstate passengers may not be carried efficiently and economically in busses used exclusively for that purpose or that appellant’s interstate business is dependent in any degree upon the local business in question. Appellant may not evade the Act by the mere linking of its intrastate transportation to its interstate or by the unnecessary transportation of both classes by means of the same instrumentalities and employees. The appellant relies on Western Union Tel. Co. v. Kansas, 216 U. S. 1; and Pullman Co. v. Kansas, 216 U. S. 56. But there the State was using its authority as a means to accomplish a result beyond its constitutional power. 52 OCTOBER TERM, 1926. Syllabus. 273 U. S. There is no support for the contention that the enforcement of the Act deprives it of its property without due process of law. Undoubtedly, the State has power in the public interest reasonably to control and regulate the use of its highways so long as it does not directly burden or interfere with interstate commerce. Packard v. Banton, 264 U. S. 140, 144; Kane v. New Jersey, 242 U. S. 160; Hendrick v. Maryland, 235 U. S. 610. Cf. Opinion of the Justices, 251 Mass. 594, 596. The terms of the Act are not arbitrary or unreasonable. Appellant has not applied for and does not show that it is entitled to have a license from the local authorities or a certificate of public necessity and convenience from the department. Plainly, it has no standing to attack the validity of the statute as a violation of the due process clause. Decree affirmed. FEDERAL TRADE COMMISSION v. PACIFIC STATES PAPER TRADE ASSOCIATION. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 71. Argued December 8, 1926.—Decided January 3, 1927. 1. Where the facts stipulated before the Federal Trade Commission showed that wholesale dealers dominating the trade in a certain commodity in several States were members of local and general trade associations; that uniform prices in intrastate sales were fixed and diligently enforced by the local associations, and in the case of one of them, were, by understanding among its members, to be applied to sales made outside of the State; that each local association applied the local prices to sales made locally but filled by direct shipment from outside mills; and that the salesmen of each, in making sales beyond its State, habitually quoted prices from the same lists which were controlling locally—the Commission was justified in inferring that such use of the lists in sales over the state line lessened competition and fixed prices in interstate commerce, FED. TRADE COM. v. PAC. PAPER ASSN. 53 52 Argument for Petitioner. although it did not appear expressly that the fixed prices were made obligatory by rule, or were adhered to, in such interstate business. P. 61. 2. An understanding, express or tacit, that agreed prices will be followed in interstate sales, is enough to constitute transgression of the law. P. 62. 3. Organized maintenance of uniform prices in local business may lend probative significance and weight to facts pointing in the direction of like restraint in interstate business. P. 62. 4. Agreements between wholesalers, by which they fix prices to be charged retailers within the State for goods to be shipped on the wholesaler’s order from mills directly to the retailer or to the wholesaler for delivery to him, are agreements to fix prices in interstate commerce, in cases where the seller elects to procure the goods and their shipment from mills outside the State. P. 63. 5. An order of the Federal Trade Commission forbidding agreements fixing prices for sales to be filled by shipments from outside the State, and the making or distributing of price lists to be used in such sales, is valid. P. 66. 6. A respondent in certiorari who did not seek review for himself is not entitled to question the correctness of the decree of the court below. P. 66. 4 Fed. (2d) 457, reversed in part. Certiorari (268 U. S. 684) to a judgment of the Circuit Court of Appeals reviewing, and in part setting aside or modifying, an order of the Federal Trade Commission, requiring the respondents to cease and desist from certain practices which are described in the opinions, here and in the court below. The respondents, included, besides individuals, five local trade associations whose members were wholesale dealers and jobbers in paper, two associations or conferences made up of two or more of the local associations, and a general association, the membership of which was drawn from all five of the local associations. Mr. Adrien F. Busick, with whom Solicitor General Mitchell and Mr. Bayard T. Hainer were on the brief, for the petitioner. Agreements by which wholesalers fix prices to be charged retailers within the State for paper shipped on 54 OCTOBER TERM, 1926. Argument for Petitioner. 273 U. S. the wholesaler’s order direct from mills outside the State to the wholesaler’s retail customers are agreements to fix prices in interstate commerce. “ Commerce among the States is not a technical legal conception, but a practical one drawn from the course of business.” Swift & Co. v. United States, 196 U. S. 375. It exists apart from any contract. Whenever commodities flow in a constantly recurring stream from one State to another, this flow constitutes commerce itself. Swift & Co. v. United States, supra; Dahnke Milling Co. v. Bondurant, 257 U. S. 282; Lemke n. Farmers’ Grain Co., 258 U. S. 50; Stafford v. Wallace, 258 U. S. 495; Chicago Board of Trade v. Olsen. 262 U. S. 1. All negotiations and contracts looking to the introduction of commodities from one State to another are a part of the commerce and within the regulating power and protection of the commerce clause. Crenshaw v. Arkansas, 227 U. S. 389; Robbins v. Shelby County Taxing Dist., 120 U. S. 489; Stewart v. Michigan, 232 U. S. 665; Rearick n. Pennsylvania, 203 U. S. 507; Dozier n. Alabama, 218 U. S. 124; Davis v. Virginia, 236 U. S. 697. The purchase of commodities within one State, though the transaction be one entered into and performed wholly within the State, is a part of interstate commerce, where the proof is that the commodity so purchased is, after purchase, habitually shipped beyond the limits of the State. Dahnke Milling Co. v. Bondurant, supra; Lemke v. Farmers’ Grain Co., supra. Likewise the sale at destination after interstate shipment and before the goods are commingled with property within the State is a part of interstate commerce. Swift <& Co. v. United States, supra; Stafford v. Wallace, supra. Thus all of the transactions immediately connected with the movement of the goods, both at the point of origin of the movement and at destination, are a part and parcel of the commerce. See Addyston Pipe Co. v. United States, 175 U. S. 211; Western Union Tel. Co. N. Foster, 247 U. S. 105; Missouri FED. TRADE COM. v. PAC. PAPER ASSN. 55 52 Argument for Petitioner. v. Kansas Gas Co., 265 U. S. 298; Peoples Nat. Gas Co. v. Pub. Serv. Comm, of Pa., 270 U. S. 550. The fact that the contracts ¿)f sale between the wholesalers, members of the associations, and their retail customers are negotiated within the State, does not take the transaction out of interstate commerce. Where goods are brought into the State to satisfy contracts of sale previously made, the transactions are interstate commerce not subject to state regulation. Western Union Tel. Co., v. Foster, supra; Sonneborn v. Cureton, 262 U. S. 506. The fact that the wholesaler’s contract with the retailer does not in terms require the former to ship direct from the mill does not defeat federal jurisdiction. See cases cited and Western Oil Ref. Co. v. Lipscomb, 244 U. S. 346. Nor is the absence of any privity of contract between the mill owner and the retail customers of the wholesalers in any way controlling in determining whether the agreements with respect to these direct shipments are subject to federal control. Western Union Tel. Co. v. Foster, supra. Ware & Leland v. Mobile County, 209 U. S. 405, distinguished. But even if the sales by the wholesalers to their retail customers for direct shipment from without the State were not a part of interstate commerce, the agreements fixing prices on such sales so directly affect and burden interstate commerce as to be within federal control. The use in interstate commerce of the list of agreed prices binding with respect to sales within the several States, lessens competition in interstate commerce and may be prohibited by the Federal Government. The conclusion which the Commission drew from the admitted evidentiary facts is a conclusion of fact unmixed with any question of law. Levins v. Revegno, 71 Cal. 273. The Commission’s findings as to the facts if supported by evidence are conclusive. Federal Trade Comm. v. Curtis Publishing Co., 260 U. S. 568; Nat. Harness Mfrs. Assn. 56 OCTOBER TERM, 1926. Argument for Respondents. 273 U.S. v. Federal Trade Comm., 261 Fed. 170; Federal Trade Commission v. Winsted Hosiery Co., 258 U. S. 483; Amer. Column Co. v. United States, 257 U. S. 377; United States v. Amer. Oil Co., 262 U. S. 371; Federal Trade Comm. N. Beech-Nut Packing Co., 257 U. S. 441. Mr. Warren Olney, Jr., with whom Messrs. Edward J. McCutchen and Allan P. Matthew were on the brief, for the respondents. A contract of sale between parties in the same State for goods to be delivered within that State, which may be filled by the seller at his option, by goods from whatever source he pleases, is not made a sale in interstate commerce by the fact that the seller chooses to supply the goods by ordering them from a manufacturer without the State. Ware & Leland v. Mobile County, 209 U. S. 405; Banker Bros. Co. v. Pennsylvania, 222 U. S. 210; Public Utilities Commission v. Landon, 249 U. S. 236; Wagner v. Covington, 251 U. S. 95; Moore v. New York Cotton Exchange, 270 U. S. 593; Ward Baking Co. v. Federal Trade Commission, 264 Fed. 330; Winslow v. Federal Trade Commission, 277 Fed. 206, Certiorari denied, 258 U. S. 618; Kansas City Structural Steel Co. v. Arkansas, 269 U. S. 148. The Commission’s order, par. (5), in so far as it forbids the use by the respondents in combination, in the making or soliciting of interstate sales, of price lists issued by any local association or otherwise agreed upon, is without support in and contrary to the record. In so far as it forbids such use by the respondents “separately,” it is contrary to law. In order that an act may come within the prohibition of the Anti-trust Act there must be present the element of combination or concert of action between two or more persons. In so far as the Anti-trust Act is concerned, any individual dealer has the right to do what he pleases in the conduct of his business regardless of the effect on interstate commerce, FED. TRADE COM. v. PAC. PAPER ASSN. 57 52 Argument for Respondents. provided only he act independently and not in conjunction with others. Federal Trade Commission v. Raymond Bros. Co., 263 U. S. 565; Western Sugar Ref. Co. v. Federal Trade Comm., 275 Fed. 725. Paragraph (5), in so far as it forbids the defendants from compiling or publishing any joint or uniform price list for use in interstate commerce, is without support in and contrary to the record. This Court ought to consider the objections made by the respondents to paragraphs (e) and (8. F. Savings Union v. Long, 123 Cal. 107, 113. To justify the conclusion that there was no authority to bring or maintain the suit really needs nothing beyond the foregoing short recital of the facts. That Luis was without power to execute the papers in question, for lack 320 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. of authority from the Indian council, in our opinion is well established. Indeed, there is no evidence to the contrary worthy of serious consideration. The rights of Indians, unlettered and under national wardship, are here involved, and a deed purporting to convey their half interest in an enormous tract of country, without consideration aside from some indefinite and doubtful promise to establish their claim against the government, is upon its face so improvident as to call for affirmative proof of authority of the clearest kind. Instead of this we have no affirmative evidence of a substantial character and the suspicious circumstance of long unexplained delay in recording the deed and power and in bringing the suit. But wholly aside from this, the conveyance and the power were both void by force of §§2103 and 2116 Revised Statutes. The first of these sections provides that any agreement with any tribe of Indians for the payment or delivery of anything of value in present or in prospective in consideration of services for such Indians relative to their lands is void, unless, among other requirements, the agreement is in writing, executed before a judge of a court of record, bears the approval of the Secretary of the Interior and the Commissioner of Indian Affairs endorsed upon it, and contains the names of all parties in interest, their residence and occupation; and further that “ if made with a tribe, by their tribal authorities, the scope of authority and the reason for exercising that authority, shall be given specifically.” Section 2116 declares that no “ conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.” These sections apply here whether the Indians concerned are to be classified as nomadic or Pueblo Indians. United States v. Candelaria, 271 U. S. 432, 441-442. None of their requirements can be dispensed with, L. & N. R. R. v. UNITED STATES. 321 315 Syllabus. and it does not appear that in respect of most of them there was even an attempt to comply. See and compare Green v. Menominee Tribe, 233 U. S. 558, 568; Lease of Indian Lands for Grazing Purposes, 18 Op. Atty. Gen. 235, 237; Indian Contract, Id., 497. We agree with the conclusions of the court of first instance, but are of opinion that the dismissal should have been not upon the merits, but without prejudice to a suit if properly brought. The decrees of both courts, therefore, are erroneous, and the cause must be remanded to the court of first instance with directions to dismiss the bill, on the ground that the suit was brought by counsel without authority, but without prejudice to the bringing of any other suit hereafter by and with the authority of the alleged Pueblo of Santa Rosa. Other grounds appearing from the record, which would lead to the same result, we pass without consideration. Decree reversed. LOUISVILLE & NASHVILLE RAILROAD COMPANY v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 61. Argued January 6, 1927.—Decided February 21, 1927. 1. A land-grant-aided railroad under a duty to carry government troops at not to exceed fifty per cent, of the compensation charged private parties for like transportation must allow the government the benefit of this reduction from reduced party rates which are offered the public. P. 323. 2. Where the railroad has accepted the usual transportation request in issuing tickets for government transportation, it cannot avoid the land-grant reduction from a reduced rate offered the public upon the ground that by the tariff the rate was allowable only for cash paid in advance. P. 323. 59 Ct. Cis. 886, affirmed. 42847°—27---21 322 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. Appeal from a judgment of the Court of Claims rejecting a claim of the Railroad on account of transportation of men of the army and navy. Mr. Benjamin Carter for the appellant. Assistant Attorney General Galloway, with whom Solicitor General Mitchell was on the brief, for the United States. Mr. Justice Sutherland delivered the opinion of the Court. Appellant owns and operates a system of railroads among which are two land-grant aided lines. During the period from 1911 to 1917 there were transported for the Government over these Unes upon transportation requests large numbers of officers and enlisted men of the United States army and navy. Individual passenger rates to the public during that time were in force, and in addition certain party rates open to the public by which ten or more passengers were entitled to reduced rates. Some of the rate tariffs provided for cash payments when tickets were issued and that there should be no land-grant deductions made from such party rates. In other tariffs no such provisions were made. As initial carrier, appellant presented its bills on proper forms to the disbursing officers of the Government. In some of the bills individual rates with land-grant deductions were charged where ten or more persons had been transported in troop movement; and in others party rates without land-grant deductions were charged, depending upon which was the lower rate. The accounting officers of the Government in all these cases applied party rates with land-grant deductions. To these rulings appellant filed protests, and this suit to recover the amounts' involved followed. L. & N. R. R. v. UNITED STATES. 323 321 Opinion of the Court. The court below denied appellant’s right of recovery. 59 C. Cis. 886. Appellant’s contentions are (1) that the Government in transporting troops has no right to avail itself of party rates but that these are restricted to passengers traveling on private account and (2) that if the Government avail itself of the party rates it must pay cash in advance in accordance with the tariff provisions. It is not disputed that in virtue of valid acts of Congress (for example, see c. 115, 36 Stat. 243, 256) appellant’s land-grant aided lines were bound to .carry officers and men of the army and navy at a rate, in the words of the law, “ not to exceed fifty per centum of the compensation for such government transportation as shall at that time be charged to and paid by private parties to any such company for like and similar transportation ” and that such amounts must “ be accepted as in full for all demands for such service.” That the party rates, being open to private parties, were open to the Government with a deduction of 50% under this express provision of the statute, does not admit of doubt. Nor is there any merit in the contention that the Government may avail itself of the rate only by paying cash in advance. Appellant issued the tickets and sent in its bills therefor without asking for cash payments. It thereby waived the requirement, if any existed, for payment in cash. Moreover, as the court below pointed out, the Government from the very nature of things cannot be required to deal for transportation on a cash basis. It is not to be supposed that station agents generally are. familiar with the land-grant legislation or the limits of the various land-grant lines so as to be able readily to make the necessary computations. But, in any event, the well settled practice of the Government is to issue requisitions for transportation, and to require the rendition of bills therefor to be examined and audited by its 324 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. accounting officers. This method was recognized and accepted by appellant in the present case. See Louisville & Nashville R. R. Co. v. United States, 58 C. Cis. 622, 631. Judgment affirmed. DAVIS SEWING MACHINE COMPANY v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 82. Argued January 6, 1927.—Decided February 21, 1927. A claim for profits anticipated from the performance of a contract with the Government cannot be based on delays caused by changes made by the Government, when under the contract itself the remedy for such delays was to be an extension of time to the contractor, and when the contract was terminated by a supplemental agreement expressly releasing all claims for such profits. P. 325. 60 Ct. Cis. 201, affirmed. Appeal from a judgment of the Court of Claims disallowing in part a claim under a contract to make Very pistols for the Government. Mr. Raymond M. Hudson for the appellant. Solicitor General Mitchell and Assistant Attorney General Galloway were on the brief for the United States. Mr. Justice Sutherland delivered the opinion of the Court. This suit was brought to recover upon a contract between appellant and the United States to manufacture a large number of Very pistols. It was stipulated in the contract that the Government might terminate it in whole or in part at any time and in that event certain enumerated payments were to be made, not including, however, prospective profits upon uncompleted articles. The contract provided that upon written notice the Government DAVIS CO. v. UNITED STATES. 325 324 Opinion of the Court. might make changes in the specifications, increased cost, if any, to be paid, and, for any delay in consequence thereof, a corresponding extension of time for the performance of the contract to be allowed. After the Armistice appellant was requested to suspend work with a view to the negotiation of a supplemental contract providing for the cancellation, settlement and adjustment of the existing contract. Subsequently, appellant filed a claim; and a partial payment supplemental contract was executed, by which the Government agreed to make appellant an advance payment and speedily determine and pay certain specified items. Appellant agreed that it would not perform further work or services, or incur further expense in connection with the performance of the uncompleted part of its original contract, and expressly waived “ all claim to the prospective profits which he [it] might have made from the performance of that portion of said original contract which under the terms of this supplemental agreement will not be performed.” The advance payment was made, and the court below found that, after its deduction and the allowance of another credit, there was due appellant a balance of $14,192.25; and it refused to allow appellant anything for profits which appellant would have realized if the contract had been performed. Judgment was rendered accordingly. 60 C. Cis. 201. The appeal to this court was taken under the law as it stood prior to the Act of February 13, 1925, c. 229, 43 Stat. 936. Appellant contends that changes made by the Government in the specifications, etc., occasioned such delay as to preclude full operations under its contract prior to the termination thereof, and that it should have judgment for the profits which it would otherwise have made. The conclusive answer to this contention is two-fold: (1) The contract itself specified the remedies, to which appellant would be entitled in the event of changes in or a complete or partial termination of the contract, among which pros- 326 OCTOBER TERM, 1926. 273 U. S. Counsel for Parties. pective profits were not included; and (2) appellant by the terms of the supplemental contract expressly released all claims to such profits. Judgment affirmed. SACRAMENTO NAVIGATION COMPANY v. SALZ. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 51. Argued December 2, 3, 1926.—Decided February 21, 1927. 1. A contract for the transportation of cargo shipped on board a barge, with privilege to the carrier of reshipping, in whole or in part, on steamboats or barges and of towing with one steamer two or more barges at the same time, is a contract of affreightment, in which it is necessarily implied that the barge as a means of transportation will be used in conjunction with a steamer or tug, to be furnished by the carrier, the two constituting together the effective instrumentality. P. 328. 2. In such case, the barge and the tug together constitute the “ vessel transporting merchandise or property ” within § 3 of the Harter Act. P.330. 3. The rule of strict construction is not violated by permitting the words of a statute to have their full meaning or the more extended of two meanings. P. 329. 3 F (2d) 759, reversed. Certiorari (268 U. S. 683) to a decree of the Circuit Court of Appeals which affirmed a decree of the District Court in favor of Saiz, the present respondent, in a suit in personam brought by him to recover for the loss of a cargo of barley while it was being towed by the petitioner under a contract of affreightment. Mr. Louis T. Hengstler, with whom Messrs. H. H. Sanborn and Frederick W. Dorr were on the brief, for the petitioner. Mr. Carroll Single, with whom Mr. S. Hasket Derby was on the brief, for the respondent. SACRAMENTO NAV. CO. v. SALZ. 327 326 Opinion of the Court. Mr. Justice Sutherland delivered the opinion of the Court. This appeal involves the construction and application of § 3 of the Harter Act, c. 105, 27 Stat. 445, which, so far as pertinent here, provides: “ That if the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, agent, or charterers shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel . . .” Petitioner is a common carrier on the Sacramento River in California and owns and operates the barge “ Tennessee,” which is not equipped with motive power, and the steamer “ San Joaquin No. 4.” On September 23, 1921, petitioner received from respondent for transportation a quantity of barley in sacks. The bill of lading acknowledges shipment of the barley “ on board of the Sacramento Transportation [Navigation] Co.’s. Barge ‘ Tennessee ’ . . . ; with the privilege of reshipping in whole or in part, on steamboats or barges; also with the privilege of towing with one steamer, at the same time, . . . two or more barges, either loaded or empty.” While being towed by the steamer in the course of transportation, the barge came into collision with a British ship at anchor and was swamped. The barley was a total loss. The sole cause of the collision was the negligence of the steamer. That both barge and steamer were “ in all respects seaworthy and properly manned, equipped, and supplied,” is not in dispute. Upon these facts, respondent filed his libel in personam against petitioner. In the view we take of the case the sole question to be determined is whether the barge alone or the combina- 328 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. tion of tug and barge was the “ vessel transporting ” the barley, within the meaning of the Harter Act. This question is a nice one, and the answer to it is by no means obvious. The court below thought the contract was between the respondent and the barge, and did not include the tug; that since the barge had no power of her own, there was an implied contract that a tug would be furnished to carry her to her destination; and that the Harter Act should receive a strict construction and, so construed, it applied only to the relation of a vessel to the cargo with which she was herself laden—that is to say, in this case, the barge alone. The decree of the district court for respondent, accordingly, was affirmed. 3 F. (2d) 759. The libel recites that it is “ in a cause of towage,” and in argument this is strenuously insisted upon. Towage service is the employment of one vessel to expedite the voyage of another. Here, while there was towage service, the contract actually made with respondent was not to tow a vessel but to transport goods, and plainly that contract was a contract of affreightment. See Bramble v. Culmer, 78 Fed. 497, 501; The Nettie Quill, 124 Fed. 667, 670. Respondent’s contention, however, seems to be that the shipping contract as evidenced by the bill of lading was with or for the barge alone; but that when petitioner took the barge in tow an implied contract of towage with respondent at once arose. This view of the matter, we think, is fallacious. The fact that we are dealing with vessels, which by a fiction of the law are invested with personality, does not require us to disregard the actualities of the situation, namely, that the owner of the tug towed his own barge as a necessary incident of the contract of affreightment, and that the transportation of the cargo was in fact effected by their joint operation. The bill of lading declares that the cargo was shipped on board the barge. 329 SACRAMENTO NAV. CO. v. SALZ. Opinion of the Court. 326 But it was to be transported; and this the barge alone was incapable of doing, since she had no power of self-movement. It results, necessarily, that it was within the contemplation of the contract that the transportation would be accomplished by combining the barge with a vessel having such power. Respondent says there was an implied contract to this effect;—that is, as we understand, a distinct contract implied in fact. But a contract includes not only the promises set forth in express words, but, in addition, all such implied provisions as are indispensable to effectuate the intention of the parties and as arise from the language of the contract and the circumstances under which it was made, 3 Williston on Contracts, § 1293; Brodie v. Cardiff Corporation, [1919] A. C. 337, 358; and there is no justification here for going beyond the contract actually made to invoke the conception of an independent implied contract. Considering the language of the bill of lading in the light of all the circumstances, it is manifest that we are dealing with a single contract and the use of the tug must be read into that contract as an indispensable factor in the performance of its obligations. To transport means to convey or carry from one place to another; and a transportation contract for the barge without the tug would have been as futile as a contract for the use of a freight car without a locomotive. In this view, by the terms of the contract of affreightment, in part expressed and in part necessarily resulting from that which was expressed, the transportation of the goods was called for not by the barge, an inert thing, but by the barge and tug, constituting together the effective instrumentality to that end. It is said that the Harter Act is to be strictly construed. The Main v. Williams, 152 U. S. 122, 132. Even so, the rule of strict construction is not violated by permitting the words of a statute to have their full meaning, or the more 330 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. extended of two meanings. The words are not to be bent one way or the other, but to be taken in the sense which will best manifest the legislative intent. United States v. Hartwell, 6 Wall. 385, 396; United States v. Corbett, 215 U. S. 233, 242. In the light of the decisions presently to be noted, the words, a “vessel transporting merchandise,” etc., are entirely appropriate to describe the combination now in question, and we see no reason to think that Congress intended that they should not be so applied. This court and other federal courts repeatedly have held that such a combination constitutes, in law, one vessel. See The Northern Belle, 9 Wall. 526, 528-529; The “ Civiltà ” and the “ Restless,” 103 U. S. 699, 701 ; The Nettie Quill, supra; The Columbia, 73 Fed. 226; The Seven Bells, 241 Fed. 43, 45; The Fred. W. Chase, 31 Fed. 91, 95; The Bordentown, 40 Fed. 682, 687; State v. Turner, 34 Ore. 173, 175-176. In The Northern Belle, supra, this court, speaking of a combination of barge and steamboat, said that “ the barge is considered as belonging to the boat to which she is attached for the purposes of that voyage.” In The “ Civiltà ” and the “ Restless,” supra, a tug and a ship which she was towing by means of a hawser were held to be in contemplation of law “ one vessel, and that a vessel under steam.” In The Columbia, supra, it was held that a barge having no motive power and a tug belonging to the same owner and furnishing the motive power constituted one vessel for the purposes of the voyage. In that case, wheat was to be transported by means of the barge, and the owner of the barge and tug undertook the transportation. The court said (p. 237) : “As the wheat was to be carried on board the barge, which had no motive power, of necessity such power had to be supplied by the carrier. . . . When the tug made fast and took in tow the barge, to perform the contract of carriage, the two became one 331 SACRAMENTO NAV. CO. v. SALZ. Opinion of the Court. 326 vessel for the purpose of that voyage,—as much so as if she had been taken bodily on board the tug, instead of being made fast thereto by means of lines.” It was, accordingly, held that, without surrendering both vessels, the owner was not entitled to the advantages of Revised Statutes § 4283 et seq., providing for a limitation of liability of “ the owner of any vessel,” etc. The court below rejected this decision as not applicable to a case arising under the Harter Act; but it is hard to see why the case is not pertinent and, if sound, controlling. What we are called upon to ascertain is the meaning of the term “ any vessel,” and the point decided in that case is that it includes a combination identical in all respects with that here dealt with. True, the court there, in construing the phrase, “ the owner of any vessel,” was considering one statute while here we are considering another and different statute; but there is no such difference between the statutes in respect of the connection in which the phrase is used or in respect of the subject-matter to which it relates as to suggest that Congress intended that it should bear different meanings. Respondent contends that his view to the contrary is sustained by The Murrell, 195 Fed. 483, affirming 200 Fed. 826, and The Coastwise, 233 Fed. 1, affirming 230 Fed. 505. Some things are said in those cases which, if we should not consider the differences between them and the present case, might justify this contention. The most important of these differences is that in both cases it was held that contracts of towage and not of affreightment were involved. We do not stop to inquire whether this conclusion as to the nature of the contracts was justified by the facts. It is enough that it was so held and this holding was the basis of the decisions. Here, upon all the facts, as we have just said, the contract upon which respondent must rest is one of affreightment, the obligation of which is to carry a cargo not to tow a vessel. 332 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. Liverpool, &c. Nav. Co. v. Brooklyn Term’l, 251 U. S. 48, also relied upon by respondent, is not to the contrary. There the libel was for a collision with petitioner’s steamship, the moving cause of which was respondent’s steam tug, proceeding up the East River, with a loaded car float lashed to one side and a disabled -tug to the other, all belonging to respondent. The car float came into contact with the steamship; but the court said it was a passive instrument in the hands of the tug and did not affect the question of responsibility. The controversy arose upon a claim to limit liability, petitioner contending that the entire flotilla should have been surrendered. This court held that it was necessary to surrender only the active tug, saying “ that for the purposes of liability the passive instrument of the harm does not become one with the actively responsible vessel by being attached to it.” But this is far from saying that the entire flotilla might not be regarded as one vessel for the purposes of the undertaking in which the common owner was engaged at the time of the collision. The distinction seems plain. There the libel was for an injury to a ship in no way related to the flotilla. It was a pure tort—no contractual obligations were involved; and the simple inquiry was, What constituted the “offending vessel ”? Here we must ask, What constituted the vessel by which the contract of transportation was to be effected? a very different question. If the British ship which here was struck by the barge were suing to recover damages and a limitation of liability were sought by the owner of the tug and barge, the Liverpool case would be in point. But the present libel is for a loss of cargo and falls within the principle of The Columbia, supra, where, upon facts substantially identical with those here, a surrender was required of the combined means by which the company undertook the transportation of the cargo. Decree reversed. 333 SMYER v. UNITED STATES. Opinion of the Court. SMYER et al. v. UNITED STATES. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 131. Argued January 14, 1927.—Decided February 21, 1927. Moneys collected by a post office official under the Act of August 24, 1912, upon C. 0. D. parcels, and held by him for use by him in purchasing money orders to be sent to the senders of the parcels, are not “ money order funds,” within Rev. Stat. § 4045, nor “ public money,” within § 3846. Pp. 335, 336. 6 F. (2d) 12, reversed. Appeal from a judgment of the Circuit Court of Appeals which affirmed a judgment for the United States, in an action in the District Court against a postmaster and his surety, to recover money embezzled by an assistant superintendent of mails. Mr. E. J. Smyer for the appellants. Mr. Gardner P. Lloyd, Special Assistant to the Attorney General, with whom Solicitor General Mitchell was on the brief, for the United States. Mr. Justice Sutherland delivered the opinion of the Court. This action was brought to recover upon the official bond of Smyer, who was postmaster at Birmingham, Alabama, the amount of moneys embezzled by one Smith, Assistant Superintendent of Mails at that office. The moneys came into Smith’s hands as collections made by him upon numerous C. 0. D. parcels or collected upon such parcels by letter carriers and turned over'to him. The condition of the bond is that the postmaster “ shall faithfully discharge all duties and trusts imposed on him by law and by the regulations of the Post Office Department.” 334 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. All parcel post matter which came to the office was in charge of Smith. Parcel post matter and money order business were separately handled in different departments of the office. It was Smith’s duty to receive and handle C. 0. D. parcels and collect from the addressees the amounts called for upon tags attached to the parcels, and thereupon purchase from the money order department money orders payable to the senders of the parcels for the several amounts. These tags, signed by the addressees, were considered by the Post Office Department as applications for money orders payable to the senders of the parcels. The moneys so collected were converted by Smith and never came into the hands of anyone connected with the money order department. The court below affirmed a judgment in favor of the government. 6 F. (2d) 12. The right of the government to recover depends upon the construction and application of §§ 4045 and 3846 Revised Statutes, copied in the margin.* We are of opinion that under neither section is there liability upon the bond. * Sec. 4045. All money received for the sale of money-orders, including all fees thereon, all money transferred from the postal revenues to the money-order funds, all money transferred or paid from the money-order funds to the service of the Post-Office Department, and all money-order funds transferred'from one postmaster to another, shall be deemed and taken to be money-order funds and money in the Treasury of the United States. And it shall be the duty of the assistant treasurer of the United States to open, at the request of the Postmaster-General, an account of “ money-order funds ” deposited by postmasters to the credit of the Postmaster-General, and of drafts against the amount so deposited, drawn by him and countersigned by the Sixth Auditor. Sec. 3846. Postmasters shall keep safely, without loaning, using, depositing in an unauthorized bank, or exchanging for other funds, all the public money collected by them, or which may come into their possession, until it is ordered by the Postmaster-General to be transferred or paid out. 335 SMYER v. UNITED STATES. Opinion of the Court. 333 The language of § 4045, so far as pertinent here, is that “ all money received for the sale of money-orders, including all fees thereon, . . . shall be deemed and taken to be money-order funds and money in the Treasury of the United States.” We are of opinion that, until the money intended for the purchase of money orders, reaches the hands of the postmaster, or some employee of the Post Office, authorized to issue money orders, it has not been received for the sale of money orders within the meaning of the language quoted. These sums of money were received, not for the sale—that is, as a price paid in for money orders—but for the purchase of money orders. That by the words, “ for the sale of money-orders,” was meant a completed purchase, is borne out by the phrase immediately following, “ including all fees thereon.” There could, of course, be no money received for fees on the sale of money orders here until actual payment to the money order department. The section further requires that it shall be the duty of the assistant treasurer, at the request of the Postmaster General, to open an account of “ money-order funds ” deposited by postmasters to the credit of the Postmaster General, etc. It cannot have been intended that money, collected for the specific purpose of buying a money order for the sender of a parcel, might be deposited to the credit of the Postmaster General as “ money-order funds ” before being put to that use. Section 4045 was enacted on June 8, 1872, while the act providing for the collection on delivery of articles sent by parcel post was not passed until August 24, 1912, c. 389, 37 Stat. 539, 558. Certainly, when § 4045 was originally enacted, Congress could have had in mind only a completed purchase, since a situation like the present was not then provided for. And while that consideration would be of no value where the language of the statute plainly applied to conditions subsequently arising, it may aid to some degree in the construction of a statute where, as here, the words are of doubtful import. 336 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. In United States v. Mann, 160 Fed. 552, a similar collection was made by a rural letter carrier, and having failed to purchase a money order for the sender he was indicted'under § 4046 of the Revised Statutes for converting to his own use “ money-order funds.” The contention of the government as to the application of § 4045 was the same as here, but the court held that the money did not constitute money order funds and directed a verdict of not guilty. In the course of an opinion subsequently filed, it was said: " It is nothing more or less than money which the regulation of the Postmaster General authorizes his qualified employé to accept from the citizen, with the duty of purchasing a money order therewith. It becomes no part of the ‘ money order funds ’ until that purchase has been made, and then it is within the category of the first class of the definition, viz., ‘ money received for the sale of money orders.’ ” Nor is the case for the government helped by the more general language of § 3846. By that section, postmasters must keep safely “ all the public money collected by them, . . . until it is ordered by the Postmaster-General to be transferred or paid out.” The collections made by or turned over to Smith were in his hands for the purpose, and only for the purpose, of being remitted in the form of money orders to the persons for whom the collections were made and to whom the moneys equitably belonged. True, these moneys came to Smith’s hands under color of his office, but subject to no form of disposition except for the use to which they were specifically devoted. Public money, within the meaning of § 3846, obviously is money belonging to the United States in such sense that it may be ordered by the Postmaster General to be transferred or paid out. It seems clear that the sums of money here in question were not subject to that control until UNITED STATES v. BURTON COAL CO. 337 333 Statement of the Case. after they had reached the hands of the money order department. There is a clear distinction between public money and these sums of money received by an employee of the office charged with the specific duty of transmitting them to their real owners in a definitely prescribed manner. That money though received under color of office may not be public money, is clearly recognized by § 225 of the Criminal Code, c. 321, 35 Stat. 1088, 1133, which defines the offense of embezzlement in part as the conversion by any person in the postal service of any money coming into his hands under color of his office, whether the same shall be the money of the United States or not. Judgment reversed. The Chief Justice, Mr. Justice Holmes and Mr. Justice Stone, dissent. UNITED STATES v. BURTON COAL COMPANY. APPEAL FROM THE COURT OF CLAIMS. No. 100. Argued January 10, 1927.—Decided February 21, 1927. 1. Where a buyer, in violation of an executory contract of sale, refuses to accept the commodity sold, the seller may recover the difference between the contract price and the market value at the time when and at the place where deliveries should have been made. P. 340. 2. The application of this rule is not affected by the fact that the seller relied on or intended procuring the commodity sold through contracts with third persons under which he would have been obliged to pay more than the market price existing when his purchaser refused to accept deliveries. P. 340. 60 Ct. Cis. 294, affirmed. Appeal by the United States from a judgment of the Court of Claims allowing damages for breach of a contract to accept and pay for coal. 42847°—27--22 338 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. Assistant Attorney General Galloway, with whom Solicitor General Mitchell was on the brief, for the United States. Mr. Maclay Hoyne for the appellee. Mr. Justice Butler delivered the opinion of the Court. The judgment is for damages for breach of contract by the United States to accept and pay for coal purchased from appellee for use at army posts in the Chicago district. The only question presented for our consideration is whether the Court of Claims applied the right measure. It gave the difference between contract price and market value at the times and places specified for deliveries. Appellant maintains that, upon the facts of the case, that rule is not applicable, and that appellee is limited to recovery of the amount of profits it would have realized if appellant had accepted and paid for all the coal covered by the contract. The facts on which appellant’s contention is based follow. Appellant and appellee made a contract as of September 10, 1920, by which the former agreed to take and pay for, and the latter agreed to furnish and deliver, 150,-000 tons of coal at $6.75 per ton. The contract contemplated the production of the coal at mines in southern Illinois: 40,000 tons at the White Ash Mine of the Johnson City Washed Coal Company, 50,000 tons at the Paradise Mine of the Forester Coal and Coke Company, and 60,000 tons at the Freeman Mine of the Freeman Coal Mining Company. But it was agreed that appellee might furnish coal from other mines if, for any reason for which it was not responsible, it should be unable at any time to furnish coal in sufficient quantities from the mines mentioned. Appellant agreed to furnish cars and give shipping directions. Appellee agreed to make deliveries on cars at each of the mines in specified quantities per week. UNITED STATES v. BURTON COAL CO. 339 337 Opinion of the Court. Appellee is a selling company and did not own or operate any of the mines named and did not have any interest in any of the companies owning or operating them. It had arrangements with the mining companies named, under which it, in its own name and under contracts between it and purchasers, sold coal produced from the mines. The president of appellee was also the president and principal owner of the company operating the White Ash Mine. It was customary for selling companies to assist in financing mining companies. Appellee advanced the companies operating the White Ash and Paradise mines funds to meet their payrolls. The Freeman mine was similarly financed by another selling company. Mines in southern Illinois have no facilities for storing coal. The general practice is to load the coal, as it comes from the mines, directly into cars. Appellee delivered the coal to appellant in that way. And, under the contract, 53,146 tons were accepted and paid for. Appellee was ready to deliver the balance, but appellant refused to take or pay for any more. The difference between the contract price and market value at the times and places specified for deliveries was $4.60 per ton; and this, applied to the 96, 854 tons that appellant refused to take, produces $445,528.40. Judgment was given for that amount. Under the agreements appellee had with the companies operating the mines, its profits on the tonnage refused would have been $46,065.97. In support of its contention that recovery must be limited to that amount, the United States emphasizes that appellee had no mine or coal at the time of the breach; that the coal refused had not been mined; that it was not shown that appellee was bound to take or pay for any of that coal or that it suffered any loss because of the termination of the mining and deliveries under the agreements between it and the mining companies, and that appellee made no claim for damages suffered by such companies. 340 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. And appellant insists that the judgment is erroneous because it puts appellee in a better position than if the contract hud been performed. United States v. Smith, 94 U. S. 214, 218, 219, and United States v. Wyckofj Co., 271 U. S. 263, are cited and relied on by appellant. They do not apply. Each arose out of a contract covering construction work for the United States. Performance by the contractor was delayed by the interference or default of the United States; and the action was for the resulting damages. The court held that the measure of damages for delay was the actual loss sustained by the contractor. Here the appellant by its refusal to accept the coal prevented appellee from completing its part of the contract. The coal had a market value and it was less than the contract price. The applicable measure of damages is fixed by the rule of law that, where a buyer in violation of an executory contract of sale refuses to accept the commodity sold, the seller may recover .the difference between the contract price and the market value at the times when and the places where deliveries should have been made. 2 Williston on Sales, § 582. The facts brought forward by appellant do not take the case out of the general rule. Appellee was bound to deliver the quantity of coal covered by the contract. Failure of the sources referred to in the contract would not excuse it. In contemplation of law it could have obtained the coal at market prices prevailing at the times when deliveries were required under the contract. The contract was not for production or mining, but for sale and delivery, of coal. Appellant and appellee were the only parties to it. There was no contract relation between appellant and any of the mining companies. Their default would not make them liable to appellant or relieve appellee from the obligation to deliver the coal to appellant. Appellant’s liability is not measured by appellee’s losses or gains, if any, under its agreements with the mining companies. Appellee is not entitled to have the full con- MISSOURI PACIFIC v. PORTER. 341 337 Statement of the Case. tract price of the coal not delivered, but is chargeable only with its market value. The difference between that value and the contract price is the amount of damage deemed by the law directly and naturally to result in the ordinary course of events from the appellant’s breach of contract. The cost to appellee of securing the coal and the amount of its profits are immaterial. Garfield &c. Co. v. N. Y., N. H. & H. Railroad, 248 Mass. 502, 506; Kadish v. Young, 108 Ill. 170, 176, 186. Cf. Jamal v. Dawood [1916], 1 A. C. 175. The judgment leaves appellant in as good position as if it had accepted and paid for the coal in accordance with its contract. Judgment affirmed. MISSOURI PACIFIC RAILROAD COMPANY v. PORTER ET AL. ERROR TO THE SUPREME COURT OF ARKANSAS. No. 107. Submitted January 11, 1927.—Decided February 21, 1927. 1. Section 1(6) of the Act to Regulate Commerce, requiring carriers to establish and enforce just and reasonable regulations affecting “ the issuance, form and substance ” of bills of lading, applies to provisions in bills of lading affecting liability of railroads for loss of property received by them for transportation over an interstate inland route to a seaport for delivery to a foreign vessel for ocean carriage to a non-adjacent foreign country. P. 343. 2. This is a general regulation by Congress broad enough to include stipulations in bills of lading exempting carriers from liability for loss of such shipments by fire, not due to the carriers’ negligence. P. 345. 3. A state law forbidding such stipulations is therefore as applied to such shipments invalid in view of the occupation of the field by Congress. P. 346. 168 Ark. 22, reversed. Error to a judgment of the Supreme Court of Arkansas which affirmed a judgment against the railroad for loss of goods by fire, in favor of Porter and other shippers. 342 OCTOBER TERM, 1926. . Opinion of the Court. 273 U. S. Messrs. Thos. T. Railey, Edward J. White, E. B. Kins-worthy, and Robert E. Wiley, for the plaintiff in error, submitted. Mr. J. C. Marshall for the defendant in error, submitted. Mr. Justice Butler delivered the opinion of the Court. October 21,1920, at Earle, Arkansas, defendants in error delivered to plaintiff in error seventy-five bales of cotton for transportation to Liverpool, England. The carrier issued to the shippers an export bill of lading in two parts: the first covered the inland haul from Earle to Brunswick, Georgia, designated as port A, and the second covered the ocean carriage from Brunswick to Liverpool, designated as port B. The inland route specified was over the lines of railroad of plaintiff in error, the Mobile and Ohio, and the Atlanta, Birmingham and Atlantic. The inland rate for the railroads named was 98.5 cents per hundred pounds. The ocean transportation was to be by the Leyland Line for the rate of $1.95. The bill of lading contained, as applicable in respect of the service and delivery at Brunswick, a provision that, “ No carrier or party in possession of . . . the property, herein described, shall be liable for any loss thereof ... by fire . . .” After the bill of lading was issued, while the cotton was on the cars of the carrier and before they were moved from Earle, it was destroyed by a fire originating at the compress and which was not set by plaintiff in error. Sections 843 and 844, Crawford and Moses’ Digest of the Statutes of Arkansas, declare that it is unlawful for any railroad to enter into an agreement with any shipper for the purpose of limiting or abrogating its statutory and common law duties or liability as a common carrier; that all agreements made for that purpose and any rule or regulation limiting the common law rights of shippers are void. Defendants in error brought this MISSOURI PACIFIC v. PORTER. 343 341 Opinion of the Court. action in the Circuit Court of Pulaski County, Arkansas, to recover the value of the cotton. Plaintiff in error contended—as it here insists—that these provisions of the Arkansas statute do not apply to the shipment in question; and that, if held to be applicable, they contravene the laws of the United States regulating interstate and foreign commerce. The Circuit Court applied the statute, and gave judgment for the shippers. The carrier took the case to the Supreme Court of the State, and there it was held that the Acts of Congress regulating bills of lading apply only to interstate commerce and to shipments from a point in the United States to an adjacent foreign country, and do not evince an intention to regulate bills of lading for shipments from a point in the United States to non-adjacent foreign countries. 168 Ark. 22. The case is here on writ of error allowed by the chief justice of that court. § 237, Judicial Code. There is no claim that the loss was caused by any fault or negligence of the carrier; and, if the Arkansas statute does not apply to the shipment, the clause in the bill of lading exempting the carrier from liability is valid. Cau v. Texas & Pacific Ry. Co., 194 U. S. 427. The power of Congress under the commerce clause to regulate bills of lading in respect of such shipments is not questioned; and, if it has entered the field of such regulation, the state statute is thereby superseded. The Interstate Commerce Act extends to the plaintiff in error and to the other railroads named in the bill of lading over which the cotton was to -have been transported from Earle, Arkansas, to the port of Brunswick, Georgia, and it also extends to the interstate transportation over the inland route constituting a part of the movement in foreign commerce. § 1 (1), (2) and (3). 41 Stat. 474. Among other things, the Act requires all carriers subject to it to establish and enforce just and reasonable regulations affecting the issuance, form and 344 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. substance of bills of lading. § 1 (6). 41 Stat. 475. It directs the Interstate Commerce Commission to keep informed as to the manner and method in which the business of carrier is conducted, and “ to execute and enforce the provisions of ” the Act. § 12. 25 Stat. 858. It provides that whenever, after hearing, the commission shall be of opinion that any “ regulation or practice whatsoever ” of the carriers is unjust or unreasonable it may determine and prescribe what is just, fair and reasonable, and may make an order requiring the carriers to observe the regulation or practice prescribed. § 15. 41 Stat. 484. The Act requires a carrier receiving property for transportation from a point in one State to a point in another State or from a point in the United States to a point in an adjacent foreign country to issue bills of lading therefor; and, to some extent, it regulates their provisions affecting the liability of carriers. § 20 (11)—Carmack and Cummins Amendments. 38 Stat. 1197. Section 25, added by the Amendment of February 28, 1920, 41 Stat. 497, was enacted to promote the business of common carriers by water in foreign commerce whose vessels are registered under the laws of the United States; it applies to shipments from points in the United States to non-adjacent foreign countries and requires the commission to do certain things in furtherance and regulation thereof. Subdivision 4 of that section requires a railroad carrier receiving a shipment to be delivered to such a vessel for further transportation to issue a through bill of lading which shall state separately the amount to be paid for railroad transportation, for water transportation and in addition, if any, for port charges. It requires the railroad as a part of its undertaking to deliver the shipment to the vessel and provides that it will not be liable after such delivery. The commission is expressly empowered, in such manner as will preserve for the carrier by water the protection of limited liability provided by law, to pre- 345 MISSOURI PACIFIC v. PORTER. Opinion of the Court. 341 scribe the form of such bills of lading. The section does not apply to shipments in such commerce where the ocean carriage is by a foreign vessel. The record does not disclose whether the vessel on which the cotton was to have been carried was registered under the laws of the United States; and, in favor of the shippers, we assume it was a foreign vessel. The question is whether Congress has entered upon the regulation of provisions in bills of lading affecting liability of railroads for loss of property received by them for transportation over an interstate inland route to a seaport for delivery to a foreign vessel for ocean carriage to a non-adjacent foreign country. All of the provisions referred to were in force when the cotton was delivered to plaintiff in error. No Act of Congress or order of the commission prescribed a form of bill of lading for this shipment. Cf. In the Matter of Bills of Lading, 64 I. C. C. 347, et seq.; Alaska 8. 8. Co. v. United States, 259 Fed. 713; same case, 253 U. S. 113. The defendants in error rightly say that the Carmack Amendment, the Cummins Amendment, or § 25 does not apply to such a shipment. But that does not sustain their contention that Congress has not evinced an intention to regulate bills of lading for transportation such as is here involved. Section 1 (6) extends to all carriers and to all transportation subject to the Act; it prescribes a general rule applicable to all regulations and practices affecting the form or substance of bills of lading in order that they may be just and reasonable. And the commission is empowered and directed to enforce the rule. The general regulation of the “ issuance, form, and substance ” of bills of lading is broad enough to cover contractual provisions, like the one involved in this case, exempting railroads from liability for loss of shippers’ property by fire. Congress must be deemed to have determined that the rule laid down and the means provided 346 OCTOBER TERM, 1926. Syllabus. 273 U. S. to enforce it are sufficient and that no other regulation is necessary. Its power to regulate such commerce and all its instrumentalities is supreme; and, as that power has been exerted, state laws have no application. They cannot be applied in coincidence with, as complementary to or as in opposition to, federal enactments which disclose the intention of Congress to enter a field of regulation that is within its jurisdiction. Napier v. Atlantic Coast Line Ry. Co., 272 U. S. 605; Oregon-Washington Co. v. Washington, 270 U. S. 87, 102; Penna. R. R. Co. v. Pub. Service Comm., 250 U. S. 566; Charleston & Car. R. R. Co. v. Varnville Co., 237 U. S. 597, 604; Adams Express Co. v. Croninger, 226 U. S. 491, 505; Nor. Pac. Ry. v. Washington, 222 U. S. 370, 378; Prigg v. Pennsylvania, 16 Pet. 539, 617, 618; Houston v. Moore, 5 Wheat. 1, 21, 22. Judgment reversed. BOWERS, INDIVIDUALLY AND AS COLLECTOR, v. NEW YORK & ALBANY LIGHTERAGE COMPANY. SAME v. SEAMAN. SAME v. FULLER. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. * Nos. 366, 367, 368. Argued January 5, 1927.—Decided February 21, 1927. The provision of § 250-d of the Revenue Act of 1921 that no “ suit or proceeding ” for the collection of the income, excess profits and other taxes mentioned, due under that or prior Acts, shall be begun after five years from date when return was filed, applies not only to suits in court but also to “ proceedings ” to collect such taxes by distraint. P. 348. 10 F. (2d) 1017, affirmed. 347 BOWERS v. N. Y. & ALBANY CO. Opinion of the Court. 346 Certiorari (271 U. S. 658, 659) to judgments of the Circuit Court of Appeals which affirmed judgments against the collector in the District Court in three suits to recover back income and excess profits taxes which he had collected from the respondents here by distraint. Mr. Charles T. Hendler, Special Attorney, Bureau of Internal Revenue, with whom Solicitor General Mitchell and Mr. A. W. Gregg, General Counsel, Bureau of Internal Revenue, were on the brief, for the petitioner. Winifred Sullivan for the respondent, in No. 366. Messrs. Bern Budd, Henry P. Keith, and Benjamin Mahler for the respondent, in No. 367. Messrs. George W. Matthews and Thomas S. Fuller for the respondent, in No. 368. Mr. Justice Butler delivered the opinion of the Court. In No. 366, respondent, March 26, 1918, filed its return of income and excess-profits taxes for 1917 and paid the amount shown due. Shortly before the expiration of five years after the return the commissioner assessed and the collector demanded payment of additional income and excess-profits taxes. Respondent refused to pay. More than five years after the return the collector distrained and sold personal property of the respondent to pay the amount claimed. In No. 367, respondent, February 28, 1917, filed his return of income taxes for 1916 and paid the amount shown due. Later an additional tax was assessed; and, more than five years after the return, the collector sought to enforce payment by distraint. Respondent brought suit to restrain the collection on the ground that it was barred by the limit fixed by § 250 (d), Revenue Act of 1921 (c. 136, 42 Stat. 227, 265), and that respondent had no adequate remedy at law. The district court denied 348 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. relief and its decree was affirmed by the Circuit Court of Appeals. 297 Fed. 371. The latter expressed the view that distraint was barred, and held that respondent had an adequate remedy at law. Later the collector enforced payment by distraint. In No. 368, respondent, February 27, 1917, filed his income tax return for 1916 and paid the amount shown due. The commissioner, February 27, 1922, assessed an additional income tax. In 1924 the collector enforced payment by distraint. Each respondent sued in the southern district of New York to recover the amount so collected. Judgments for respondents were affirmed in the Circuit Court of Appeals. 10 F. (2d) 1017. Writs of certiorari were granted. 271 U. S. 658, 659. The question for decision is this: Where, under the tax laws enacted prior to the Revenue Act of 1921, income and excess-profits taxes were assessed within five years after filing return, does § 250 (d) of that Act bar collection by distraint proceedings begun after the expiration of the five-year period? The part of the subdivision that has a bearing is printed in the margin.1 The clause in controversy is: “ No suit 1 The amount of income, excess-profits, or war-profits taxes due under any return made under this Act for the taxable year 1921 or succeeding taxable years shall be determined and assessed by the Commissioner within four years after the return was filed, and the amount of any such taxes due under any return made under this Act for prior taxable years or under prior income, excess-profits, or warprofits tax Acts . . . shall be determined and assessed within five years after the return was filed, unless both the Commissioner and the taxpayer consent in writing to a later determination, assessment, and collection of the tax; and no suit or proceeding for the collection of any such taxes due under this Act or under prior income, excessprofits, or war-profits tax Acts . . . shall be begun, after the expiration of five years after the date when such return was filed, but this shall not affect suits or proceedings begun at the time of the passage of this Act. 349 BOWERS v. N. Y. & ALBANY CO. Opinion of the Court. 346 or proceeding for the collection of any such taxes . . . shall be begun, after the expiration of five years after the date when such return was filed.” Petitioner insists that the word “ proceeding ” refers only to a proceeding in court and means the same as “ suit ”; and that the Act prescribes no limitation against the collection of such taxes by distraint. There are two methods to compel payment. One is suit, a judicial proceeding; the other is distraint, an executive proceeding. The word “ proceeding ” is aptly and commonly used to comprehend steps taken in pursuit of either. There is nothing in the language or context that indicates an intention to restrict its meaning, or to use “ suit ” and “ proceeding ” synonymously. The purpose of the enactment was to fix a time beyond which steps to enforce collection might not be initiated. The repose intended would not be attained if suits only were barred, leaving the collector free at any time to proceed by distraint. In fact, distraint is much more frequently resorted to than is suit for the collection of taxes. The mischiefs to be remedied by setting a time limit against distraint are the same as those eliminated by bar against suit. Under petitioner’s construction taxpayers having no property within reach of the collector would be protected against stale demands, while others would be liable to have their property distrained and sold to pay like claims. The result tends strongly to discredit petitioner’s contention. He maintains that any ambiguity in the clause under consideration must be resolved in his favor. . Undoubtedly the United States will not be held barred by a general statute of limitation unless, upon a strict construction in its favor, the United States and the claim sought to be enforced fairly may be held to be within the terms and purpose of the statute. Dupont De Nemours & Co, v. Davis, 264 U, S. 456, 462, That rule rests upon 350 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. the general principle of policy applicable to all governments that the public interest should not be prejudiced by the default or negligence of public officers. United States v. St. Paul, M. & M. Ry. Co., 247 U. S. 310, 314. The limitation, applies to petitioner and to the claims. It applies to suit; the only question is whether it also bars distraint. The provision is a part of a taxing statute ; and such laws are to be interpreted Uberally in favor of the taxpayers. Eidman n. Martinez, 184 U. S. 578, 583; Shwab v. Doyle, 258 U. S. 529, 536. There has been suggested no principle of public policy or other consideration that furnishes any reasonable support for the setting of a Umitation against only one of the two authorized methods of enforcing collection. The provision is to be applied in harmony with the intention reasonably to be inferred from its terms and the circumstances of its enactment. Cf. United States v. Oregon Lumber Co., 260 U. S. 290, 299. Prior to the Revenue Act of 1918 there was no limitation against suit to collect income taxes. Section 250(d) of that Act (40 Stat. 1083) required assessment within five years after return, and prohibited the commencement of suit or proceeding to collect such taxes after that period. This bar was held to apply only in respect of taxes for 1918 anddater years. Then § 250(d) of the Act of 1921 made the limitation apply against collection of taxes under all the earlier Acts; and, in pursuance of a legislative purpose to require more prompt action upon the part of the commissioner and coUectors, prescribed the five-year period for determination and assessment of taxes under earlier Acts but allowed only four year as to those for 1921 and succeeding years. The same purpose is shown by the requirement that the commissioner, within one year after request by their personal representatives, shall make assessments on income received by deceased persons. These stricter limitations applicable to taxes for the later BOWERS v. N. Y. & ALBANY CO. 351 346 Opinion of the Court. period make against the petitioner’s contention that the Act sets no bar against collection by distraint. A reasonable view of the matter is that it was the intention of Congress by the clause here in question to protect taxpayers against any proceeding whatsoever for the collection of tax claims not made and pressed within five years. Petitioner’s construction of the limitation is inconsistent with the provision immediately preceding it. “ The amount of any such taxes due under any return . . . shall be determined and assessed within five years after the return was filed, unless both the Commissioner and the taxpayer consent in writing to a later determination, assessment, and collection of the tax.” If collection by distraint were not barred by § 250(d) it would not be necessary to have this general consent of taxpayers that collection, as well as determination and assessment, might be made after the lapse of the prescribed period. Later legislation assumes that the limitation under consideration applies to distraints as well as to suits. See § 278(d) and (e), Revenue Act of 1924, c. 234, 43 Stat. 253, 300. Section 278(d) provides that, where assessment is made within the prescribed time, the tax may be collected by distraint or by a proceeding in court within six years after the assessment. And § 278(e) provides: “ This section shall not authorize the assessment of a tax or the collection thereof by distraint or by a proceeding in court if at the time of the enactment of this Act such assessment, distraint, or proceeding was barred by the period of limitation then in existence.” This plainly implies that distraint might be barred. And the limitation prescribed by § 250(d) is the only one that could have that effect. See also § 278(d) and (e), Revenue Act of 1926, c. 27, 44 Stat. 9, 59. The word “ proceedings ” is rightly used as descriptive of steps taken for the distraint and sale of property to enforce payment of taxes. See Parker v. Rule’s Lessee, 352 OCTOBER TERM, 1926. Syllabus. 273 U. S. 9 Cranch 64, 70; Murray’s Lessee v. Hoboken Land and Improvement Co., 18 How. 272; Sheridan v. Allen, 153 Fed. 568. Cf. Scottish Union & Nat. Ins. Co. v. Bowland, 196 U. S. 611, 632, 633; Hale v. Henkel, 201 U. S. 43, 66. In a later part, subdivision (g), of § 250, “proceedings” is used broadly in reference to steps for the collection of taxes. Obviously its meaning is not there limited to collection by suit. And in other parts of the Internal Revenue Laws, enacted before this controversy arose, that word is used as descriptive of steps taken to distrain and sell personal property and to seize and sell real estate for the collection of taxes. See R. 8., §§ 3194, 3199, 3200, 3203; side-notes to §§ 3190 and 3197.2 Section 250(d) of the Act of 1921 and these sections of the Revised Statutes relate to the same subject and are to be construed together. It is clear that the meaning of “ proceeding ” as used in the clause of limitation in § 250(d), Revenue Act of 1921, cannot be restricted to steps taken in a suit; it includes as well steps taken for the collection of taxes by distraint. Judgments affirmed. QUON QUON POY v. JOHNSON, COMMISSIONER. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. No. 68. Argued December 9, 10, 1926.—Decided February 21, 1927. 1. A hearing before a Board of Special Inquiry, in an immigration proceeding, was not rendered unfair by mere delay in its com- ’ By § 2, c. 140, Act of June 27, 1866, 14 Stat. 74, the commissioners appointed to revise the laws of the United States were directed to arrange “ side-notes so drawn as to point to the contents of the text.” The side-notes at §§ 3190 and 3197, above referred to, appear in the first edition of the Revised Statutes and were carried into the second edition. QUON QUON POY v. JOHNSON. 353 352 Opinion of the Court. mencement; nor by the absence of a friend or relative of the applicant for entry, when the applicant waived his right.in that regard; nor by the introduction before the Board of testimony previously taken by an inspector, where the applicant made no objection thereto and did not seek to recall the witness. P. 355. 2. An applicant for admission who has never resided in the United States, is not entitled under the Constitution to a judicial hearing of his claim that he is a citizen of the United States by birth. P. 357. 3. A petition in habeas corpus based solely on the right of the petitioner cannot be maintained on the right of another. P. 358. 4. When a party respondent has since died, the judgment (one of affirmance) will be nunc pro tunc, as of the date of submission. P.359. Affirmed. Appeal from a final order of the District Court discharging a writ of habeas corpus, and remanding Poy, the petitioner, to the custody of the Commissioner of Immigration. Mr. Warren Ozro Kyle for the appellant. Solicitor General Mitchell, with whom Messrs. Theodore G. Risley, Solicitor, Department of Labor, and A. E. Reitzel, Assistant Solicitor, Department of Labor, were on the brief, for the appellee. Mr. Justice Sanford delivered the opinion of the Court. Quon Quon Poy, a Chinese boy fifteen years of age, arrived at the port of Boston in June, 1924, and applied for admission to the United States, claiming to be a for-eign-bom son of Quon Mee Sing, a native-born citizen— whose citizenship was conceded—and, hence, under R. S. § 19931 (U. S. C., Tit. 8 § 6), to be himself a citizen of the 1 By this section—with an exception not here material—all children born out of the limits and jurisdiction of the United States, whose fathers are at the time of their birth citizens thereof, are declared to be citizens of the United States. 42847°—27----23 354 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. United States. After a preliminary investigation by an inspector, his claim was heard, under the provisions of the Immigration Act of 1917,2 by a Board of Special Inquiry, which decided, on the evidence, that he was not shown to be the son of Quon Mee Sing, and should be excluded as a Chinese alien not a member of any of the exempt classes entitled to enter the United States. On an appeal to the Secretary of Labor—this finding having been approved by the Board of Review—the Secretary sustained the decision of the Board of Special Inquiry; and a deportation warrant was issued to the Commissioner of Immigration. The applicant then presented to the District Court a petition for a writ of habeas corpus, alleging that he was the son of Quon Mee Sing and a citizen of the United States; that he had been denied a fair hearing and opportunity to establish his citizenship by the Department of Labor; that the procedure in the Department by which he had been declared an alien denied him the due process of law to which he was entitled under the Constitution; and that under his claim to citizenship he was entitled to an adjudication by the court as to such procedure and as to his relationship to Quon Mee Sing. The writ was granted. Upon a hearing on the petition and return, in which the record of the Departmental proceedings was introduced, the court, finding that the Departmental decision was conclusive as to the petitioner’s citizenship, 2 This Act provides that any alien, including “ any person not a native-born or naturalized citizen of the United States,” who may not appear to the examining immigration inspector to be clearly and undoubtedly entitled to land, shall be detained for examination in relation thereto by a board of special inquiry, which shall have authority to determine whether he shall be allowed to land or shall be deported; and that in the event of his rejection by the board of special inquiry he may appeal to the Secretary of Labor, whose decision, where the deportation is ordered, shall be final. Act of February 5, 1917, c. 29, 39 Stat. 874, §§ 1, 16, 17, 19. QUON QUON POY v. JOHNSON. 355 352 Opinion of the Court. declined to hear witnesses offered by him for the purpose of independently establishing his citizenship; and entered judgment discharging the writ and remanding the petitioner to the custody of the Commissioner of Immigration. This direct appeal was then allowed under § 238 of the Judicial Code, prior to the Jurisdictional Act of 1925. 1. The contention that the petitioner was denied a fair hearing as to his citizenship by the Department of Labor, cannot be sustained. The record shows that in September the inspector to whom the case was referred in its preliminary stage, separately examined, under oath and at length, the petitioner, and his alleged father and an alleged brother who offered themselves as witnesses. Their examination, which was by question and answer, was taken down and is in the record. It was conducted in an entirely fair and impartial manner. Each of them stated at the conclusion of his examination that he had nothing further to say; and no other witnesses offered themselves or were produced. The petitioner was intelligent, had attended school, and stated that he thoroughly understood the interpreter. At the close of this preliminary investigation the case was immediately referred to the Board of Special Inquiry, consisting of the same inspector, and two others. At the commencement of the hearing before the Board the petitioner was informed of his right to have a relative or friend present, and stated that he did not desire to avail himself of this right and was willing to proceed with the hearing. He was also informed that the previous testimony given by himself and his alleged father and brother would be made a part of the proceedings before the Board; to which he made no objection. The petitioner was then further examined by the Board. After a postponement for the purpose of obtaining a report as to the physical condition of the petitioner, the Board resumed its hearing, the petitioner being again present; and after consideration of the entire testimony, being of opinion that his relation- 356 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. ship to Quon Mee Sing had not been reasonably established, voted to accord him five days in which to submit additional evidence. Notice of this was sent to the attorney representing the petitioner—who had not been present at any of the proceedings—and he replied that the petitioner had no further testimony to offer. The Board then recalled the petitioner for further examination— after which he stated that he had nothing further to say— and again decided that his claimed relationship to Quon Mee Sing had not been reasonably established and that he should be excluded; and informed him of his right to appeal to the Secretary of Labor. This appeal having been taken, the Board of Review, after hearing the attorney for the petitioner, made a report in which it reviewed the entire testimony, found that the record was “ exceptionally unfavorable ” to the petitioner, and—after referring to his lack of knowledge of matters which clearly should have been within his memory, his unsatisfactory explanations, the discrepancies between his statements and those of his alleged father and brother, and to a previous statement by his alleged father to the effect that he had no such son—concluded that the petitioner had fallen “ far short ” of establishing that he was in truth and fact the son of Quon Mee Sing; and accordingly recommended that the exclusion decision be affirmed. The entire record discloses a painstaking and impartial effort to ascertain the merits of the petitioner’s claim. There is no contention here that the decision of the Board of Special Inquiry had no adequate support in the evidence. The arguments made as to the unfairness of the hearing—in so far as they are based upon anything properly appearing in the record before us—relate to the delay in commencing the hearing, the absence of a friend or relative of the petitioner at the hearing, and the introduction before the Board of the testimony previously taken by the 357 QUON QUON PÔY v. JOHNSON. Opinion of the Court. 352 single inspector. These are not well taken. Clearly the mere delay in the commencement of the investigation— although involving the detention of the petitioner— had no bearing upon the fairness of the hearing itself. The argument as to the necessity for the presence of a kinsman or friend of the petitioner at the hearing, is based upon the provision in § 17 of the Immigration Act that while the hearing “shall be separate and apart from the public,” the applicant for admission “ may have one friend or relative present under such regulations as may be prescribed by the Secretary of Labor.” Here, however, the Board, at the outset of the hearing, informed the petitioner of his right to have a relative or friend present; and he expressly waived this right and stated that he was willing to proceed with the hearing. And see United States v. Sing Tuck, 194 U. S. 161, 169. The contention that the hearing was invalid because the greater part of the testimony was taken before a single inspector and introduced before the Board, is based upon a provision in the same section of the Act that on an appeal from the Board of Special Inquiry the decision shall be rendered “ solely upon the evidence adduced before the Board.” There is, however, no suggestion whatever in the Act that the evidence adduced before the Board of Special Inquiry must be taken in its presence. We see no reason to doubt that evidence properly taken before an inspector, § 16,—which has substantially the same effect as a deposition taken in an ordinary case—may be introduced before the Board and considered by it. See Kwock Jan Fat v. White, 253 U. S. 454, 458. And here the petitioner offered no objection to the introduction of such testimony, and no application was made to recall the witnesses for re-examination by the Board. 2. It is also contended that as the petitioner claimed the right of admission to the United States as a citizen thereof under R. S. § 1993, the Immigration Act, in vest $58 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. ing in the Board of Special Inquiry the authority to determine the question of his citizenship and making its decision when approved by the Secretary of Labor final, is unconstitutional, in that it deprives him of the right to a judicial hearing to which he is entitled as due process under the Constitution; and that it was therefore the duty of the District Court to proceed, independently of the Departmental decision, to an adjudication as to his citizenship. It is clear, however, in the light of the previous decisions of this Court, that when the petitioner, who had never resided in the United States, presented himself at its border for admission, the mere fact that he claimed to be a citizen did not entitle him under the Constitution to a judicial hearing; and that unless it appeared that the Departmental officers to whom Congress had entrusted the decision of his claim, had denied him an opportunity to establish his citizenship, at a fair hearing, or acted in some unlawful or improper way or abused their discretion, their finding upon the question of citizenship was conclusive and not subject to review, and it was the duty of the court to dismiss the writ of habeas corpus without proceeding further. United States v. Sing Tuck, 194 U. S. 161, 168; United States v. Ju Toy, 198 U. S. 253, 263; Chin Yow v. United States, 208 U. S. 8,11; Tang Tun v. Edsell, 223 U. S. 673, 675; and Ng Fung Ho v. White, 259 U. S. 276, 282. 3. It is also urged in argument, that, apart from the petitioner’s own claim, Quon Mee Sing was independently entitled to maintain the petition for habeas corpus in enforcement of his right to the custody of a minor child, and to obtain to that end an adjudication of his kinship to the petitioner. It suffices to say that no such question is here presented. The petition was filed solely in the right of the petitioner. No right was asserted in behalf of Quon Mee Sing. No such question appears to have been presented in the hearing in the District Court; and none was raised by the assignments of error. EASTMAN CO. v. SOUTHERN PHOTO CO. 359 352 Syllabus. The judgment of the District Court must accordingly be affirmed. But the Court being advised that the appellee, the Commissioner of Immigration, has died since December 10, 1926, the day on which this case was argued and submitted, the judgment here will be entered nunc pro tunc as of that day. Mitchell v. Overman, 103 U. S. 62, 65; Richardson v. Green, 130 U. S. 104, 116; Bell v. Bell, 181 U. S. 175, 179; Cuebas v. Cuebas, 223 U. S. 376, 390. Judgment affirmed, nunc pro tunc. EASTMAN KODAK COMPANY OF NEW YORK v. SOUTHERN PHOTO MATERIALS COMPANY. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 6. Argued November 19, 1925.—Decided February 21, 1927. 1. Under § 12 of the Clayton Act, a suit against a corporation for injuries sustained from violations of the Anti-Trust Act may be brought in a federal court in any district in which the corporation transacts business, although neither residing nor “ found ” there; and the process may be served in another district in which the corporation either resides or is “ found.” P. 370. 2. A corporation is engaged in transacting business in a district, in the sense of this venue provision, if in fact, in the ordinary and usual sense, it “ transacts business ” therein of any substantial character. P. 373. 3. A corporation is none the less engaged in transacting business in a district, within the meaning of this section, because of the fact that such business may be entirely interstate in character and be transacted by agents who do not reside within the district. P. 373. 4. Congress may, in the exercise of its legislative discretion, fix the venue of a civil action in a federal court in one district, and authorize the process to be issued to another district m which the defendant resides or is found. P. 374. 5. A corporation which, in a continuous course of business, was engaged, not only in selling and shipping its goods to dealers within a certain district, but also in soliciting orders therein through its salesmen and promoting the demand for its goods through its demonstrators for the purpose of increasing its sales, was transact- 360 OCTOBER TERM, 1926. Argument for Plaintiff in Error. 273 U. S. ing business in that district, within the meaning of this venue provision of the Clayton Act. P. 374. 6. That the intent of a defendant manufacturer in refusing to continue selling its goods to a plaintiff retailer at dealers’ discounts was to perpetuate its monopoly in such goods, may be inferred 'from circumstances. P. 375. 7. Such refusal was not justified by the fact that the plaintiff retailer has previously undertaken to handle goods of another manufacturer under a preferential contract, when it was not shown that the defendant knew of such contract at the time of the refusal. P. 375. 8. In an action for injury to an established retail business due to a defendant manufacturer’s monopoly of a line of the goods dealt in and to its refusal, in the interest of its monopoly, to continue supplying such goods to the plaintiff at retailers’ discounts, the gross profits derived by the plaintiff from selling such goods during a period preceding the refusal, less the expense, additional to the general expenses of the business, which would have been incurred in handling them during the period in suit, may be used as a standard in measuring the damages, if the plaintiff had not been in pari delicto with the defendant in the monopoly, and the profits were not increased thereby, and if the other facts are such that the inference of the lost anticipated profits from the past profits is reasonable. P. 376. 9. Damages are not uncertain .because they cannot be calculated exactly. It is sufficient if a reasonable basis of computation is afforded, although the result be only approximate. P. 378. 10. A defendant whose wrongful conduct has rendered difficult the ascertainment of the precise damages suffered by the plaintiff, is not entitled to complain that they cannot be measured with the same exactness as would otherwise be possible. P. 379. 295 Fed. 98, affirmed. Error to a judgment of the Circuit Court of Appeals which affirmed a judgment of the District Court in a suit brought to recover damages for injuries sustained through violation of the Sherman Anti-Trust Act. See also 234 Fed. 955. Mr. John W. Davis, with whom Messrs. Frank L. Crawford and Clarence P. Moser were on the brief, for plaintiff in error. EASTMAN CO. v. SOUTHERN PHOTO CO. 361 359 Argument for Plaintiff in Error. The attempted service of process upon the defendant, whether in the State of Georgia or in the State of New York, was void and the court below had no jurisdiction in the premises. People’s Tobacco Co. v. American Tobacco Co., 246 U. S. 79; Internat. Harvester Co. v. Kentucky, 234 U. S. 579; Minn. Comm. Assn. n. Benn, 261 U. S. 140; Davis v. Farmers Equity Co., 262 U. S. 312; V. S. (& P. Ry. v. De Bow, 148 Ga. 738; Southeastern Dist. Co. v. Mar mon Co., 159 Ga. 150; Chase Bag Co. v. Munson S. S. Line, 295 Fed. 990; Holzer v. Dodge Bros., 233 App. Div. 216. Distinguishing N. W. Consol. Milling Co. v. Massachusetts, 246 U. S. 147. That Congress, by inserting in § 12 of the Clayton Act, after the words “may be found,” the additional words “ or transacts business,” did not intend to broaden the section but merely to make explicit what this Court had already decided, is shown by the legislative proceedings. Duplex Co. v. Deering, 254 U. S. 443. Language of this Court in the People’s Tobacco case, defines the words “resides or is found” as the equivalent of “carrying on business.” In St. Louis S. W. Ry. Co. v. Alexander, 227 U. S. 218, it had been said that, “A long line of decisions in this Court has established that in order to render a corporation amenable to service of process in a foreign jurisdiction it must appear that the corporation is transacting business in that district to such an extent as to subject it to the jurisdiction and laws thereof.” Frey & Son v. Cudahy Packing Co., 228 Fed. 209, and the decision in the instant case (234 Fed. 955), were both rendered long before the decision of this Court in the People’s Tobacco case. Distinguishing Gen. Investment Co. v. Ry. Co., 260 U. S. 261. The plaintiff, while a customer of the defendant, was a participant in the latter’s unlawful acts and was, therefore, in pari delicto, and the profits earned by plaintiff during the period of such illegality cannot be used as a 362 OCTOBER TERM, 1926. Argument for Plaintiff in Error. 273 U. S. standard by which to measure the damages which it alleges it sustained in the period for which it was allowed to recover. There is, therefore, no competent proof of damages in the record. The court would not have then given relief to either party to the illegal contract for injuries caused by the other party and growing out of the contract relation. McMullen v. Hoffman, 174 U. S. 639; Coppell v. Hall, 7 Wall. 542; Cont. Wall Paper Co. v. Voight & Sons Co., 212 U. S. 227; Harriman v. Northern Securities Co., 197 U. S. 244; Hall v. Corcoran, 107 Mass. 251. Mere participation and acquiescence by the plaintiff in the unlawful system of defendant made the former a party to the wrongdoing and itself a violator of the Sherman Act. Sage v. Hampe, 235 U. S. 99; Victor Co. v. Kemeny, 271 Fed. 810; Eastman Kodak Co. v. Black-more, 277 Fed. 694; Tilden v. Quaker Oats Co., 1 Fed. (2d) 160; Bluefields S. S. Co. v. United Fruit Co., 243 Fed. 1. The assumed fact that plaintiff accepted the terms of sale and joined with defendant in maintaining the latter’s illegal system because, as stated by the trial judge in his charge; “he needed the goods and that was the only way he could get them,” did not excuse the plaintiff nor relieve it of the penalties of one who is in pari delicto. Its necessity did not constitute legal duress. Eastman Kodak Co. v. Blackmore, supra; Dennehy n. McNulta, 86 Fed. 825; Detroit Edison Co. v. Wyatt Coal Co., 293 Fed. 489; Radich v. Hutchins, 95 U. S. 210; Chesebrough v. United States, 192 U. S. 253. Distinguishing Ramsey v. Assoc. Bill Posters, 260 U. S. 501. The only , measure of damages proposed by plaintiff and allowed by the court was the assumed net profits which plaintiff claims it would have made after it ceased to be an Eastman customer, had it been allowed to purchase Eastman goods at dealers’ discounts, such net profits being arrived at by taking the actual gross profits which plaintiff claims to have made during the period before it EASTMAN CO. v. SOUTHERN PHOTO CO. 363 359 Argument for Plaintiff in Error. so ceased, and deducting therefrom a speculative cost of conducting the increased business, which it is claimed would have resulted from the handling of Eastman goods. In short, the whole recovery hinged upon the use of the alleged gross profits of the earlier period, as a standard of comparison by which to determine the amount of net profits claimed to have been lost in the later period. It is well settled that one may not use the earnings or profits which he made in the course of a violation of law, or in a business which was illegal, as a measure of the damages which he suffered after the date when he claimed that his business was interrupted. Riggs v. Palmer, 115 N. Y. 506; Murray v. Interurban Ry. Co., 118 App. Div. 35; Victor Co. v: Kemeny, supra; Eastman Co. v. Black-more, supra; Raynor v. Blatz Brewing Co., 100 Wis. 414; Continental Paper Co. v. Voight, 212 U. S. 227. Distinguishing Ramsey v. Assoc. Bill Posters, 260 U. S. 501. There was no proof of damages such as, under the authorities, is necessary to enable plaintiff, in cases under the Anti-Trust Acts, to recover any damages whatever. Keogh v. C. & N. W. R. R. Co., 260 U. S. 156; Central Coal Co. v. Hartman, 111 Fed. 96; Locker v. Amer. Tobacco Co., 218 Fed. 447; Amer. Slate Co. v. O’Hgllo-ran, 229 Fed. 77; Cramer v. Grand Rapids Showcase Co., 223 N. Y. 63; McSherry Mjg. Co. v. Dowagiac Mjg. Co., 160 Fed. 948; Montgomery v. C. B. & Q. R. R. Co., 228 Fed. 616. Plaintiff offered no proof of the amount of its capital either before or after the alleged interruption, either as to the whole amount invested in its entire business or as to the amount invested in that part of the business which concerns Eastman goods. The sale of Eastman goods formed only a small part of the total sales of plaintiff. If the entire business be considered as a unit and the total expenses and cost of goods be deducted from the entire receipts, then the plaintiff lost money in 1908 and 1909; whereas, in 1910 364 OCTOBER TERM, 1926. Argument for Plaintiff in Error. 273 U. S. and 1911 after the alleged interruption, it cleared a substantial net profit. There is no provision in any of the decisions cited above for allowing the plaintiff, in such cases, to estimate that his total sales would have been increased, if permitted during the period when he was unable to procure the goods in question. The precise point was decided in Horton v. Hall & Clark Mfg. Co., 94 App. Div. 404. Frey n. Welch Co., 240 Fed. 114, was reversed in 261 Fed. 68. Distinguishing Lincoln v. Orth-wein, 120 Fed. 880. The assumption that, had plaintiff handled Eastman goods after April, 1910, it would have sold at least as great a quantity of them as before that date, is entirely speculative. The plaintiff offered no proof as to the reason why defendant declined to continue plaintiff as a customer on the terms formerly in force between them The presumption is that the refusal was made either for good or for purely indifferent reasons, and that it was therefore entirely legal. United States v. Colgate & Co., 250 U. S. 300. This presumption not having been overcome, the plaintiff in error was entitled to a dismissal or a direction on this ground alone. The record, it is true, fails to show expressly whether defendant knew the provisions of the Ansco contract at or about the time it was entered into. The plaintiff on its part assumed that defendant had such knowledge. In any event, since these provisions, if known, would have furnished a lawful reason for terminating the relations between the parties, even if defendant was not aware of them at the time, it should be permitted to take advantage of them when they became known to it. This is the well established rule in the law of master and servant and of agency. In re Nagle, 278 Fed. 105; Farmer v. First Trust Co., 246 Fed. 671 ; Carpenter Steel Co. v. Norcross, 204 Fed. 537 ; Sanborn v. United States, 135 U. S. 271; McGar v. Adams, 65 Ala. 106. EASTMAN CO. v. SOUTHERN PHOTO CO. 365 359 Argument for Defendant in Error. Substantially the same rule applies wherever a fiduciary relation exists. An apparently contrary rule in the law of contracts has been modified so that it no longer conflicts with the foregoing authorities. Strasbourg er v. Leerburger, 233 App. Div. 55; Granger Co. v. Universal Mach. Corp., 193 App. Div. 234. Mr. Daniel MacDougald, with whom Mr. J. A. Fowler was on the brief, for the defendant in error. On the question of jurisdiction: Peoples Tobacco Co. v. American Tobacco Co., 246 U. S. 70; Frey & Son v. Cudahy Co., 228 Fed. 209; Eastman Kodak Co. v. Southern Photo Co., 234 Fed. 955; International Harvester Co. v. Kentucky, 234 U. S. 579; Davis v. Farmers’ Co-operative Co., 262 U. S. 312; General Investment Co. v. Lakeshore, 260 U. S. 261. On the right of the plaintiff to sue: Ramsey v. Associated Bill Posters, 260 U. S. 501, Connally v. Union Pipe Co., 184 U. S. 540; Wilder Mjg. Co. v. Corn Products Co., 236 U. S. 165. Distinguishing Bluefields S. S. Co. v. United Fruit Co., 243 Fed. 1, Victor Talking Mach. Co. v. Kemeny, 271 Fed. 810, Eastman Kodak Co. v. Blackmore, 277 Fed. 694, and Tilden v. Quaker Oats Co., 1 Fed. (2d) 160. On the question of damages: Central Coal & Coke Co. v. Hartman, 111 Fed. 96; Lanier Gas Engine Co. v. Du Bois, 130 Fed. 834; Hollweg v. Schaeffer Brokerage Co., 197 Fed. 689; Yates v. Wyhel Coke Co., 221 Fed. 603; Homestead Co. v. Des Moines Electric Co., 248 Fed. 439; Frey & Son v. Welch Grape Juice Co., 240 Fed. 114; Lincoln v. Orthwein, 120 Fed. 880. The suit was brought to recover loss of income to an established business. The business continued in operation throughout the entire period covered by the suit. The loss of income is the loss of profits on sales which the plaintiff could have made during the period covered 366 OCTOBER TERM, 1926. Argument for Defendant in Error. 273 U.S. by the suit except for the defendant’s illegal act. In proving the damages, but two factors must be shown. First, that a loss of income resulted from the defendant’s illegal refusal to sell to the plaintiff, and, second, the extent of the loss. The previous sales and the previous income would be sufficient evidence to authorize a verdict for the plaintiff and form the basis for the jury to conclude that the same income would have been realized during the. period of the suit. The sales were detailed for a period of four years prior to the defendant’s refusal to sell to the plaintiff. The gross profits on such sales were likewise shown. Plaintiff, of course, Was not entitled to recover the gross profits. This would violate the principle of indemnity. The plaintiff could only recover thé gross profit or income less such items of expense as were saved to it by reason of not actually making these sales. The evidence shows that the plaintiff continued its business during the entire period covered by the suit, consequently it still had the items of general expense, incident, to carrying on its business, such as administrative, organization and selling expenses. In fact, the evidence showed that the plaintiff continued to travel the territory and that its salesmen solicited orders continuously throughout this territory and from the plaintiff’s regular trade. The evidence shows that the plaintiff in continuing the operation of its business still had every expense incident thereto and incident to a sale of the goods which it could no longer obtain, except the actual expenses incident to handling these goods through its established business. This evidence more than supports the deduction that the plaintiff would have sold the same amount of goods during the period covered by the suit that it did prior thereto, when during the period of the suit plaintiff had increased its number of customers 60%. The evidence shows that the plaintiff’s sales per photographer dropped from $79.00 EASTMAN CO. v. SOUTHERN PHOTO CO. 367 359 Opinion of the Court. prior to the period covered by the suit to $36.09 per photographer during that period. There was direct testimony that the plaintiff could not supply its customers more than 25% in kind and value of the articles consumed by them in the operation of their studios. This was more than substantial data from which the extent of the damage could reasonably be inferred or determined by the jury. The plaintiff, with an established organization, was a “going concern” with a demand for certain articles which it could not supply despite the fact that the plaintiff had every “going concern” expense incident to supplying such articles. Mr. Justice Sanford delivered the opinion of the Court. This suit was brought by the Southern Photo Materials Co., a Georgia corporation, in 1915, in the Federal District Court for Northern Georgia, against the Eastman Kodak Co., a New York corporation, to recover damages for injuries sustained by the plaintiff through the defendant’s violation of the Sherman Anti-Trust Act.1 Proceeding under § 12 of the Clayton Act,2 process was issued and served upon the defendant, pursuant to an order of the court, at Rochester, New York, where it had its principal place of business. The defendant, appearing specially, traversed the return, entered a plea to the jurisdiction, and moved to quash the service. The jurisdictional issues thus raised were tried by the judge, who overruled 1 Act of July 2, 1890, c. 647, 26 Stat. 209. This Act makes it illegal, inter alia, to monopolize, or combine to monopolize, any part of the trade or commerce among the several States, § 2; and authorizes any person injured in his business or property by reason of anything declared to be unlawful by the Act, to sue therefor and recover three fold the damages sustained and a reasonable attorney’s fee, § 7. ’Act of October 15, 1914, c. 323, 38 Stat. 730. 368 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. these defenses. 234 Fed. 955. The defendant, by leave of court, then answered on the merits. The trial to the court and jury resulted in a verdict for the plaintiff assessing its actual damages at $7,914.66. Judgment was entered against the defendant for triple this amount and an attorney’s fee. This was affirmed by the Circuit Court of Appeals. 295 Fed. 98. And the case was then brought here by writ of error, prior to the Jurisdictional Act of 1925. . The plaintiff operates a photographic stock house in Atlanta and deals in photographic materials and supplies, which it sells to photographers in Georgia and other Southern States. The defendant is a manufacturer of photographic materials and supplies, which it sells to dealers throughout the United States. The case made by the allegations of the complaint was, in substance, this: The defendant, in violation of the Anti-Trust Act, had engaged in a combination to monopolize the interstate trade in the United States in photographic materials and supplies, and had monopolized the greater part of such interstate trade. This had been brought about by purchasing and acquiring the control of competing companies engaged in manufacturing such materials, and the businesses and stock houses of dealers; by restraining the vendors from re-entering these businesses; by imposing on the dealers to whom it sold goods restrictive terms of sale fixing the prices at which its goods could be resold and preventing them from handling competitive goods; and by other means of suppressing competition. Prior to 1910 the plaintiff had dealt with the defendant and purchased its goods on the same terms as other dealers, with whom it was enabled to compete; but in that year the defendant, having acquired the control of the stock houses in Atlanta which were in competition with the plaintiff and unsuccessfully attempted to purchase the plaintiff’s business, had, in furtherance of its purpose to EASTMAN CO. v. SOUTHERN PHOTO CO. 369 359 Opinion of the Court. x monopolize, thereafter refused to sell the plaintiff its goods at the dealers’ discounts, and would no longer furnish them except at the retail prices at which they were sold by other dealers and the agencies which the defendant owned and controlled, with whom the plaintiff could no longer compete. And, the plaintiff being thus deprived, by reason of the monopoly, of the ability to obtain the defendant’s goods and supply them to its trade, its business had been greatly injured and it had sustained large damages in the loss of the profits which it would have realized in the four years covered by the suit had it been able to continue the purchase and sale of such goods. The answer denied that the defendant had combined to monopolize or monopolized interstate trade, or refused to sell its goods to the plaintiff at the dealers’ discounts in furtherance of a purpose to monopolize; and averred that the defendant had not only committed no actionable wrong, but that in any event the plaintiff had sustained no damages capable of ascertainment upon any legal basis. While many errors were assigned, some of which were also specified, in general terms, in the defendant’s brief in this Court, we confine our consideration of the case in this opinion to the controlling questions which are stated in that brief to present the chief issues here in controversy, and to which alone the argument in the brief is directed. See I. T. S. Co. v. Essex Rubber Co., 272 U. S. 429. These do not involve the existence of the defendant’s monopoly—which is not questioned here3—but relate solely to the questions whether there 3 The plaintiff’s allegations in this respect were supported on the trial by a final decree that had been entered in 1916 in another District Court in a suit in equity brought by the United States against the defendant and others, which the plaintiff introduced, under § 5 of the Clayton Act, as prima facie evidence of the defendant’s violation of the Anti-Trust Act. 42847°—27---24 370 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. was local jurisdiction or venue in the District Court; whether the refusal of the defendant to continue to sell the plaintiff its goods at the dealers’ discounts was in furtherance of a purpose to monopolize and constituted an actionable wrong which could form the basis of any recovery; and whether there was any competent and legal proof on which a measurement of the plaintiff’s damages could be based. 1. Whether or not the jurisdiction of the District Court was rightly sustained—which resolves itself into a question whether the venue of the suit was properly laid in that court—depends upon the construction and effect of § 12 of the Clayton Act and its application to the facts shown by the evidence set forth in the separate bill of exceptions relating to the hearing on the jurisdictional issues. Dunlop v. Munroe, 7 Cranch 242, 270; Jones v. Buckell, 104 U. S. 554, 556. It appears from this evidence that the defendant— which resides and has its principal place of business in New York—had not registered in Georgia as a non-resident corporation for the purpose of doing business in that State, and had no office, place of business or resident agent therein. It had, however, for many years prior to the institution of the suit, in a continuous course of business, carried on interstate trade with a large number of photographic dealers in Atlanta and other places in Georgia, to whom it sold and shipped photographic materials from New York. A large part of this business was obtained through its travelling salesmen who visited Georgia several times in each year and solicited orders from these dealers which were transmitted to its New York offices for acceptance or rejection. In furtherance of its business and to increase the demand for its goods, it also employed travelling “ demonstrators,” who visited Georgia several times in each year, for the purpose of exhibiting and explaining the superiority of its goods to photographers and other EASTMAN CO. v. SOUTHERN PHOTO CO. 371 359 Opinion of the Court. users of photographic materials. And, although these demonstrators did not solicit orders for the defendant’s goods, they took at times retail orders for them from such users, which they turned over to the local dealers supplied by the defendant. It is clear that upon these facts this suit could not have been maintained in the Georgia district under the original provision in § 7 of the Anti-Trust Act that anyone injured in his person or property “by any other person or corporation ” by reason of anything declared to be unlawful by the Act, might sue therefor “ in the district in which the defendant resides or is found.”4 In Peoples Tobacco Co. v. Am. Tobacco Co., 246 U. S. 79, 84, 86— decided in 1918—it was held that this provision, as applied to a corporation sued in a district in which it did not reside, required that it “ be present in the district by its officers and agents carrying on the business of the corporation,” this being the only way in which it could be said to be “ found ” within the district; that to make it amenable to service of process in the district, the business must be of such nature and character as to warrant the inference that it had subjected itself to the local jurisdiction, and was by its duly authorized officers or agents present therein; and that advertising its goods in a State and sending its soliciting agents therein, did not amount to “ that doing of business ’’.which subjected it to the local jurisdiction for the purpose of serving process upon it. Manifestly the defendant was not present in the Georgia district through officers or agents engaged in carrying on business of such character that it was “ found ” in that district and was amenable to the local jurisdiction for the service of process. 4 A like provision was contained in the Tariff Act of 1894, 28 Stat. 509, c. 349, which made illegal, combinations and trusts in restraint of import trade. §§ 73, 74. 372 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. However, by the Clayton Act—which supplemented the former laws against unlawful restraints and monopolies of interstate trade—the local jurisdiction of the district courts was materially enlarged in reference to suits against corporations. By § 4 of that Act it was provided that any person “ injured in his business or property by reason of anything forbidden in the antitrust laws ” might sue therefor in the district “ in which the defendant resides or is found or has an agent.” Whether, as applied to suits against corporations, as distinguished from those against individuals, the insertion of the words “ or has an agent ” in this section can be held, in the light of the decision in the Peoples Tobacco Co. case, to have enlarged to any extent the jurisdictional provision in § 7 of the Anti-Trust Act, we need not here determine. Be that as it may, it is clear that such an enlargement was made by § 12 of the Clayton Act— dealing specifically with the venue and service of process in suits against corporations—under which the plaintiff proceeded in the present case. This provided that “ any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found.” That this section altered the venue provisions in respect to suit under the anti-trust laws was pointed out in General Inv. Co. v. Lake Shore Ry., 260 U. S. 261, 279. And we think it clear that, as applied to suits against corporations for injuries sustained by violations of the Anti-Trust Act, its necessary effect was to enlarge the local jurisdiction of the district courts so as to establish the venue of such a suit not only, as theretofore, in a district in which the corporation resides or is “ found,” but also in any district in which it “ transacts business ”— EASTMAN CO. v. SOUTHERN PHOTO CO. 373 359 Opinion of the Court. although neither residing nor “ found ” therein—in which case the process may be issued to and served in a district in which the corporation either resides or is “found”; and, further, that a corporation is engaged in transacting business in a district, within the meaning of this section, in such sense as to establish the venue of a suit—although not present by agents carrying on business of such character and in such manner that it is “ found ” therein and is amenable to local process,—if in fact, in the ordinary and usual sense, it “ transacts business ” therein of any substantial character. This construction is in accordance, not only with that given this section by the two lower courts in the present case, but also with the decisions in Frey & Son v. Cudahy Packing Co. (D. C.), 228 Fed. 209, 213 and Haskell v. Aluminum Co. of America (D. C.), 14 F. (2d) 864, 869. And see Green v. Chicago, B. cfc Q. Ry., 205 U. S. 530, 533, in which it was recognized that a corporation engaged in the solicitation of orders in a district was in fact “ doing business ” therein, although not in such sense that process could be there served upon it. We are further of opinion that a corporation is none the less engaged in transacting business in a district, within the meaning of this section—which deals with suits respecting unlawful restraints upon interstate trade—because of the fact that such business may be entirely interstate in character and be transacted by agents who do not reside within the district. And see International Harvester v. Kentucky, 234 U. S. 579, 587; Davis v. Farmers Co-operative Co., 262 U. S. 312, 316. Thus construed, this section supplements the remedial provision of the Anti-Trust Act for the redress of injuries resulting from illegal restraints upon interstate trade, by relieving the injured person from the necessity of resorting for the redress of wrongs committed by a non-resident corporation, to a district, however distant, in which it 374 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. resides or may be “ found ”—often an insuperable obstacle—and enabling him to institute the suit in a district, frequently that of his own residence, in which the corporation in fact transacts business, and bring it before the court by the service of process in a district in which it resides or may be “ found.” To construe the words “ or transacts business ” as adding nothing of substance to the meaning of the words “ or is found,” as used in the Anti-Trust Act, and as still requiring that the suit be brought in a district in which the corporation resides or is “ found,” would to that extent defeat the plain purpose of this section and leave no occasion for the provision that the process might be served in a district in which the corporation resides or is found. And we find nothing in the legislative proceedings leading to its enactment which requires or justifies such a construction. That Congress may, in the exercise of its legislative discretion, fix the venue of a civil action in a federal court in one district, and authorize the process to be issued to another district in which the defendant resides or is found, is not open to question. United States v. Union Pacific R. R. Co., 98 U. S. 569, 604; Robertson v. Labor Board, 268 U. S. 619, 622. And, since it appears from the facts already stated that the defendant, in a continuous course of business, was engaged, not only in selling and shipping its goods to dealers within the Georgia district, but also in soliciting orders therein through its salesmen and promoting the demand for its goods through its demonstrators for the purpose of increasing its sales, we conclude that it was transacting business in that district, within the meaning of § 12 of the Clayton Act, in such sense as properly established the venue of the suit; that it was duly brought before the court by the service of process in the New York district, in which it resided and was “found ”; and that its jurisdictional defenses were rightly overruled. EASTMAN CO. v. SOUTHERN PHOTO CO. 375 359 Opinion of the Court. 2. On the question whether the defendant’s refusal to sell its goods to the plaintiff at dealers’ discounts was in furtherance of a purpose to monopolize and constituted an actionable wrong, the defendant contends not only that there was no direct evidence as to the purpose of such refusal overcoming the presumption that it was a lawful one, but that such refusal was justified by the fact that the plaintiff had previously undertaken to handle the goods of another manufacturer under a preferential contract. Aside from the plaintiff’s contention that this contract related merely to goods that did not conflict with the sale of those which it had been purchasing from the defendant, it was not shown that the defendant knew of this contract when it refused to sell its goods to the plaintiff. And for this reason, if for no other, we think that the trial court rightly declined to charge the jury to the effect that such taking over of other goods by the plaintiff in itself justified the defendant in its refusal to sell to the plaintiff. And, although there was no direct evidence—as there could not well be—that the defendant’s refusal to sell to the plaintiff was in pursuance of a purpose to monopolize, we think that the circumstances disclosed in the evidence sufficiently tended to indicate such purpose, as a matter of just and reasonable inference, to warrant the submission of this question to the jury. “ Clearly,” as was said by the Court of Appeals, “ it could not be held as a matter of law that the defendant was actuated by innocent motives rather than by an intention and desire to perpetuate a monopoly.” This question was submitted under proper instructions. And the weight of the evidence being in such case exclusively a question for the jury, its determination is conclusive upon this question of fact. Crumpton v. United States, 138 U. S. 361, 363; Anvil Mining Co. v. Humble, 153 U. S. 540, 554. And see Johnson v. United States, 157 IT. S. 320, 326; Goldman v. United States, 245 U. S. 474, 477. 376 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. 3. On the question of the amount of damages, there was substantial evidence to the effect that prior to 1910 the plaintiff had an established business in selling supplies used by professional photographers, of which it carried a complete line, purchased in large part from the defendant; that the defendant sold to dealers such supplies only; that shortly before the defendant’s refusal to continue the sale of its goods the plaintiff also took on a complete line of goods used by amateurs, which did not conflict with its sales to professional photographers; that after the defendant’s refusal, the plaintiff was unable, by reason of the defendant’s monopoly, to obtain and supply the greater part of the goods necessary to professional photographers, and lost its established trade in such goods; that its trade with professional photographers greatly decreased; and that its business was so organized that it would have been able to continue to handle the defendant’s goods during the period in suit with no increase in its general expenses and no additional cost except that incident to the handling of such goods themselves—its business being operated during such period at only two-thirds of its capacity. The plaintiff’s claim was that under these circumstances it was entitled to recover, as the loss of profits which it would have realized had it been able to continue the purchase of defendant’s goods, the amount of its gross profits on the defendant’s goods during the four years preceding the period in suit, which was shown, less the additional expense which it would have incurred in handling the defendant’s goods during the four years’ period in suit, which was estimated. The defendant—while conceding that the loss of anticipated profits from the destruction or interruption of an established business may be recovered where the amount of the loss is made reasonably certain by competent proof, Central Coal & Coke Co. v. Hartman (C. C. A.), Ill Fed. 96, 98—contends that there was a lack of com- EASTMAN CO. v. SOUTHERN PHOTO CO. 377 359 Opinion of the Court. petent proof of such damages in that the profits earned by the plaintiff during the preceding four years in which it had been a customer of the defendant, were improperly used as a standard by which to measure the damages sustained by the plaintiff during the period covered by the suit, since during such preceding years it had participated in the defendant’s unlawful acts in furtherance of the monopoly and was in pari delicto. There was, as stated by the Court of Appeals, evidence from which the jury could justly reach the conclusion that the plaintiff was not a party to the monopoly in pari delicto with the defendant, and that the plaintiff had complied with the defendant’s restricted terms of sale merely for the reason that otherwise it could not purchase or secure the goods necessary in the conduct of its business. There was also affirmative evidence, not contradicted, tending to show that under the defendant’s restricted terms of sale the dealers’ profits did not exceed those on the sale of goods of other manufacturers not parties to the monopoly. The jury was instructed, in substance, that if, during the preceding period in which the plaintiff had been a customer of the defendant, it had not merely bought goods from the defendant because of a business necessity, but, with a knowledge of the defendant’s purpose to monopolize, had knowingly and willfully helped to build up the monopoly, it was in pari delicto, and hence could not recover any damages whatever on account of the defendant’s refusal to continue to sell it goods; and, further, that even if the plaintiff had not been a party to the monopoly, it could not recover damages on the basis of the profits which it had earned while a customer of the defendant to the extent that they had been increased by the monopoly and exceeded those in a normal business, but that they must be reduced to the basis of normal profits. We find, under the circumstances of this case, nothing in these instructions of which the defendant may justly 378 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. complain. See Ramsay Co. v. Bill Posters Assn., 260 U. S. 501, 512. The statement in Victor Talking Mach. Co. v. Kemeny (C. C. A.), 271 Fed. 810, 819, on which the defendant relies was based on the assumptions that the plaintiff had not only been a party to the unlawful combination, but that his earlier profits had exceeded those which “he could earn lawfully in a competitive market.” And in Eastman Kodak Co. v. Blackmore (C. C. A.), 277 Fed. 694, 699, the substance of the holding was that the profits made by the plaintiff during an earlier period ending in 1902, in which he had actively participated in the unlawful combination, could not be set up as the standard of the profits which he would have realized in a much later period commencing in 1908. The defendant further contends that, apart from this question the plaintiff’s damages were purely speculative, not proved by any facts from which they were logically and legally inferable, and not of an amount susceptible of expression in figures, Keogh v. C. & N. W. Ry. Co., 260 U. S. 156, 165. In support of this contention it is urged in argument, inter alia, that there was no showing as to the separate cost of handling the defendant’s goods during the preceding four years; that if the plaintiff’s entire business be considered as a unit and the total expenses and costs of goods be deducted from the entire receipts, it is shown to have had a net loss in the two years preceding 1910, but to have made a substantial net profit in that and the succeeding year; that the estimate as to the additional expense which the plaintiff would have incurred in handling the defendant’s goods during the period in suit, was purely conjectural and speculative; and that it was a mere assumption, discredited by the testimony, that the plaintiff could have sold as large a quantity of the defendant’s goods during the period in suit, after taking over a line of other goods, as it had before. As to this question the Court of Appeals—after stating that in its opinion the plaintiff’s evidence would have sup- EASTMAN CO. v. SOUTHERN PHOTO CO. 379 359 Opinion of the Court. ported a much larger verdict than, that returned by the jury—said: 11 The plaintiff had an established business, and the future profits could be shown by past experience. It was permissible to arrive at net profits by deducting from the gross profits of an earlier period an estimated expense of doing business. Damages are not rendered uncertain because they cannot be calculated with absolute exactness. It is sufficient if a reasonable basis of computation is afforded, although the result be only approximate.” This, we think, was a correct statement of the applicable rules of law. Furthermore, a defendant whose wrongful conduct has rendered difficult the ascertainment of the precise damages suffered by the plaintiff, is not entitled to complain that they cannot be measured with the same exactness and precision as would otherwise be possible. Hetel v. Baltimore & Ohio R. R., 169 U. S. 26, 39. And see Lincoln v. Orthwein (C. C. A.), 120 Fed. 880, 886. We conclude that plaintiff’s evidence as to the amount of damages, while mainly circumstantial, was competent; and that it sufficiently showed the extent of the damages, as a matter of just and reasonable inference, to warrant the submission of this question to the jury. The jury was instructed, in effect, that the amount of the damages could not be determined by mere speculation or guess, but must be based on evidence furnishing data from which the amount of the probable loss could be ascertained as a matter of reasonable inference. And the question as to the amount of the plaintiff’s damages having been properly submitted to the jury, its determination as to this matter is conclusive. The judgment is accordingly Affirmed. 380 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. MYERS v. INTERNATIONAL TRUST COMPANY. CERTIORARI TO THE SUPERIOR COURT FOR THE COUNTY OF SUFFOLK, STATE OF MASSACHUSETTS. No. 122. Argued January 12, 13, 1927.—Decided February 21, 1927. 1. In Massachusetts, a partner who indorses a firm note as an individual, incurs—in addition to the liability for the partnership debt arising from his membership in the firm—a distinct and separate liability arising by reason of his personal indorsement. P. 384. 2. A composition between a bankrupt partnership and the partnership creditors only, in respect only of the partnership debts, will not discharge the partners as individuals from their separate obligations as endorsers of partnership notes. P. 383. 3. The fact that the holder of the notes was scheduled as a partnership creditor and received, as such, his proportion of the consideration deposited for the composition, did not enlarge the effect of the composition so as to discharge the partners from their personal liabilities as endorsers. P. 385. 252 Mass. 94, affirmed. Certiorari (268 U. S. 686) to a decree of the Superior Court for Suffolk County, entered pursuant to a rescript from the Supreme Judicial Court. Mr. Edward F. McClennen for the petitioners. Mr. John R. Lazenby for the respondent. Mr. Justice Sanford delivered the opinion of the Court. This suit was brought by the International Trust Co. in a Superior Court of Massachusetts against Samuel A. Myers and Harry Myers, partners composing the firm of S. A. & H. Myers, to hold them individually liable upon certain notes that had been executed by the partnership, in the firm name, for a partnership obligation, and endorsed by them personally. The defense was that the individual liabilities of the defendants had been dis- MYERS v. INTERNAT. TRUST CO. 381 Opinion of the Court. 380 charged by a composition in a prior proceeding in bankruptcy. The Superior Court sustained this defense, and dismissed the plaintiff’s bill. On appeal, the Supreme Judicial Court—without entering judgment—directed the Superior Court, by a rescript, to reverse its decree and enter a decree for the plaintiff. 252 Mass. 94. The Superior Court, pursuant to the rescript, entered a decree against the defendants in the respective amounts of their individual obligations as indorsers upon the notes.1 This being, under the practice that was followed,1 2 the final decree in the case and not appealable, Boston, Petitioner, 223 Mass. 36, is to be regarded as the final decision of the highest' court of the State in which a decision could be had; and the writ of certiorari was therefore properly directed to the Superior Court. See Davis v. Cohen Co., 268 U. S. 638, 639. The Bankruptcy Act3 provides, in so far as pertinent here, that a partnership may be adjudged a bankrupt, § 5a; that a “ bankrupt ”—including, as defined by § la, a person against whom an involuntary petition has been filed—“ may offer, either before or after adjudication, terms of composition to his creditors,” after filing “ a schedule of his property and the list of his creditors,” § 12a, as amended; that upon the confirmation of a composition the consideration shall be distributed as the judge shall direct, § 12c; and that the confirmation “ shall discharge the bankrupt from his debts,” § 14c. The proceedings in the prior bankruptcy case, shortly stated,4 show that creditors of the firm of S. A. & H. Myers filed an involuntary petition in bankruptcy, praying that 1 These amounts differed, as one note was indorsed by only one of the defendants. 2 Gen. Laws, 1921, c. 211. 8 30 Stat. 544, c. 541. 4 These are set out at length in the opinion of the Supreme Judicial Court, supra. 382 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. it be adjudged a bankrupt. There was no prayer that the partners be adjudged bankrupts individually. A partnership schedule, signed and sworn to by the partners, was filed, showing the partnership property and listing the partnership creditors. In this the plaintiff’s notes were listed as unsecured debts of the partnership, with no statement that they were indorsed; and each of the partners stated that he had no individual debts and no individual assets that were not exempt. Thereafter, before any adjudication, the partners offered terms of composition, at forty per cent., to the unsecured creditors. The consideration therefor was deposited in the court; the composition was confirmed; and the consideration distributed among the partnership creditors. The plaintiff, as a creditor of the partnership listed in the schedule, received its proportion of the consideration, which it credited on the notes before bringing the present suit. No offer of composition was made to the creditors of the individual partners, who were not listed; no consideration was deposited for them; and none was received by the plaintiff on account of the individual obligations of the partners as indorsers on the notes. We are not called upon to determine whether the discharge of the notes as debts of the partnership which resulted from the confirmation of the composition, carried with it the discharge of the defendants, as partners, from the liabilities on the notes as partnership debts which arose from their membership in the firm.5 The Supreme Judicial Court predicated the liabilities of the defendants solely on their personal indorsements, and the BSee Re Coe (C. C. A.), 183 Fed. 745, 747; Abbott v. Anderson, 265 Ill. 285, 291; and Curlee Clothing Co. v. Hamm, 160 Ark. 483, 486. And compare, as to the effect of a discharge granted a partnership under § 14: Francis v. McNeal, 228 U. S. 695, 701; Re Berten-shaw (C. C. A.), 157 Fed. 363, 369; Homer v. Hamner (C. C. A.), 249 Fed. 134, 140; Armstrong v. Norris (C. C. A.), 247 Fed. 253, 255; and Re Neyland & M’Keithen (D. C.), 184 Fed. 144, 151. MYERS v. INTERNAT. TRUST CO. 383 380 Opinion of the Court. decree was based on their respective liabilities as such indorsers. And the sole question here presented is whether the composition discharged them, as individuals, from the obligations arising by reason of their indorsements. This question must be answered in the light of the principle stated by the Supreme Judicial Court, that a “ composition partakes of the nature of a contract.” It is settled by the decisions of this Court in Cumberland Glass Co. v. DeWitt, 237 U. S. 447, 453, 454, and Nassau Works v. Brightwood Co., 265 U. S. 269, 271, 273, 274, that a composition is “ a settlement of the bankrupt with his creditors ”—in a measure superseding and outside of the bankruptcy proceedings—which originates in a voluntary offer by the bankrupt, and results, in the main, from voluntary acceptance by his creditors; that the respective rights of the bankrupt and the creditors are fixed by the terms of the offer; and that upon the confirmation of the composition they get what they “ bargained for,” and no more. And see: Re Coe (C. C. A.) 183 Fed. 745, 747; Re Adler (D. C.) 103 Fed. 444, 446; Re Lane, (D. C.) 125 Fed. 772, 773. Here the partnership, being proceeded against as a distinct legal entity, Meek v. Centre County Banking Co., 268 U. S. 426, 431, could offer terms of composition to its creditors under § 12a, after filing a schedule of its property and a list of its creditors. It filed such a schedule and list. And—although the District Court in Massachusetts had always refused to adjudge the bankruptcy of a partnership unless the partners were also adjudged bankrupts, Re Forbes (D. C.), 128 Fed. 137, 140,6 and doubtless 8 We need not determine here whether the adjudication of the bankruptcy of a partnership involves an adjudication of the bankruptcy of the individual partners. See Francis v. McNeal, supra, 701 ; Liberty Nat’l Bank v. Bear, 265 U. S. 365, 368; Meek v. Centre County Banking Co., supra, 432. 384 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. would have permitted the terms of composition to be offered to the creditors of the partners as well as to the creditors of the partnership—we think it clear that, read in the light of the schedule, the offer of the terms of composition was made only to the partnership creditors listed in the schedule, for whom the required consideration was deposited, and not to the creditors of the individual partners, who were not listed and for whom no consideration was deposited; in short, that the “ bargain ” was made only with the partnership creditors and in respect to the partnership debts. The necessary result is that the confirmation of the composition merely discharged the partnership debts, and did not discharge the separate debts of the partners to their individual creditors, who were offered and received no consideration for such release. That, as was said by the Supreme Judicial Court, the indorsements of the notes by the defendants “ created individual obligations, separate and distinct from the firm obligations,” is clear; it being well settled in Massachusetts that a partner who indorses a firm note as an individual, incurs—in addition to the liability for the partnership debt arising from his membership in the firm—a distinct and separate liability arising by reason of his personal indorsement. Roger Williams Nat. Bank v. Hall, 160 Mass. 171; Faneuil Hall Nat. Bank v. Meloon, 183 Mass. 66, 67; Fourth Nat. Bank v. Mead, 216 Mass. 521, 523. As was said in the Meloon case, the defendants “ were none the less indorsers and none the less liable as such because they were also liable as members of the firm which made the note.” And see Robinson v. Seaboard Nat. Bank (C. C. A.), 247 Fed. 1007, 1008; Matter of Peck, 206 N. Y. 55, 60; and Wilder v. Keeler, 3 Paige (N. Y.) 167, 176. It also results, from the very nature of a composition, that where the terms offered and accepted go merely to the discharge of the maker of a note, its confirmation does not release an indorser from his separate liability for which no MYERS v. INTERNAT. TRUST CO. 385 380 Opinion of the Court. “ bargain ” was made. See Easton Furn. Mfg. Co. v. Camine z (N. Y.), 146 App. Div. 436, 438; Silverman v. Rubenstein, 162 N. Y. S. 733, 735; Bromberg v. Self, 16 Ala. App. 627, 628; and Guild v. Butler, 122 Mass. 498, 500. Nor do we think that the effect of the composition of the partnership debts was enlarged so as to include the discharge of the defendants from their personal liabilities as indorsers, by the fact that the plaintiff was scheduled as a partnership creditor and received, as such, its proportion of the consideration deposited. The Supreme Judicial Court rightly said that the plaintiff was a party to the composition “ only to the extent in which its claim against the partnership was concerned; it was not recognized as an individual creditor; no offer was made to it as the holder of a claim against the individuals. In this respect it was a stranger to the offer; it stood as any other individual creditor whose demand was not listed, to whom no offer of compromise was made and who entered into no bargain with the defendants.” We conclude that the composition did not discharge the defendants from their individual and personal obligations as indorsers upon the notes. And the decree, which merely enforced their liabilities as such indorsers, must therefore be Affirmed. 42847°—27--25 386 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. FRED T. LEY & COMPANY INC. v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 125. Argued January 14, 1927.—Decided February 21, 1927. In a suit to recover the cost of public liability insurance paid under a building contract allowing reimbursement for such insurance “ as the contracting officer might approve or require,” a finding by the Court of Claims that there was no evidence that the expenditure was required or approved will not be reviewed by this Court. P. 387. 60 Ct. Cis. 654, affirmed. Appeal from a judgment of the Court of Claims rejecting a claim for money expended for liability insurance in connection with building operations under a government contract. Mr. George A. King, with whom Messrs. William B. King and George R. Shields were on the brief, for appellant. Solicitor General Mitchell and Assistant Attorney General Galloway were on the brief for the United States. Mr. Justice Stone delivered the opinion of the Court. Appellant entered into a contract with the government for the construction of certain army cantonment buildings at Camp Devens, Massachusetts, upon a cost-plus basis. The contract provided for the reimbursement of the contractor for all expenditures made in performance of the contract, including the cost of “ such bonds, fire, liability and other insurance as the Contracting Officer [might] approve or require; . . .” Appellant brought suit in the Court of Claims to recover the cost of public liability insurance effected by it in connection with the perform- 387 LEY & CO. v. UNITED STATES. Opinion of the Court. 386 ance of its contract. That court found that the evidence failed to show that the liability insurance in question was ever required or approved by the contracting officer of the government,or any person representing him or performing his duties, and gave judgment for the government. 60 Ct. Cis. 654. On appeal to this Court, Jud. Code, §§ 242 and 243, before the amendment of 1925, appellant seeks to avoid the effect of this finding by pointing out that all the contracts for the construction of army cantonments during the late war were identical in form and that recovery has been allowed for the cost of public liability insurance in connection with the construction of Camp Zachary Taylor, Kentucky, in Mason & Hanger Co. v. United States, 56 Ct. Cis. 238; affirmed, 260 U. S. 323; and of Camp Grant, Illinois, in Bates & Rogers Const. Co. v. United States, 58 Ct. Cis. 392. It is urged that the records in those cases show a blanket approval by the government of the expenditures made for liability insurance in the construction of all the army cantonments. But the Court of Claims specifically found that there was no evidence that the present expenditure was required or approved. By that finding we are concluded. Lucken-bach Steamship Co. v. United States, 272 U. S. 533; Rogers v. United States, 270 U. S. 154, 162. Moreover, in Mason & Hanger v. United States, supra, the court’s finding was that the contracting officer had merely approved the particular insurance involved in that suit. In Bates & Rogers Const. Co. v. United States, supra, the court based its decision upon a stipulation that the case should be controlled by the decision of this Court in the Mason case. No substantial question is presented by the appeal. Judgment affirmed. 388 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. SMITH ET AL. v. WILSON et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF, TEXAS. No. 648. Argued January 5, 6, 1927.—Decided February 21, 1927. 1. Section 266 of the Judicial Code, as amended by the Act of February 13, 1925, does not require a court of three judges on the final hearing unless an application for preliminary injunction was pressed to a hearing. In that case, an appeal either from the determination on the preliminary application or from the final decree may be taken directly to this Court. P. 391. 2. If the plaintiff does not press an application for an interlocutory injunction, the final hearing may be before a single judge, whose decision may be reviewed by the Circuit Court of Appeals and this Court under other applicable provisions of the Code. Id. 3. Whether it is erroneous for three judges to sit at final hearing in a case in which there was no application for an interlocutory ' injunction, is not here decided. Id. Appeal from 13 F. (2d) 1007, dismissed. Appeal from a final decree of the District .Court (of three judges) in a suit to enjoin officials of Texas from levying assessments on plaintiffs’ land, and issuing bonds, under a plan of navigation improvement authorized by a state law which the bill challenged as violative of the Fourteenth Amendment. Mr. A. D. Lipscomb, with whom Messrs. Frederick S. Tyler and R. E. Seagler were on the brief, for appellants. Mr. A. R. Rucks, with whom Messrs. Lewis R. Bryan, C. D. Jessup, and Louis J. Wilson were on the brief, for appellees. Mr. Justice Stone delivered the opinion of the Court. Appellants, some of whom are citizens of Texas, filed their bill in the district court for southern Texas against 389 SMITH v. WILSON. Opinion of the Court. 388 appellees, the county commissioners of Brazoria County, certain tax officials of that county, and the commissioners of the Brazos River Harbor Navigation District and others, all citizens of Texas. The relief prayed was a preliminary and final injunction restraining appellees from levying assessments on appellants’ land and from issuing or selling bonds pursuant to a plan authorized by the Act of February 19, 1925, c. 5, General Laws of Texas, 7, creating a taxing district to raise funds to defray the cost of a proposed improvement of navigation at the mouth of the Brazos River. The jurisdiction of the district court was based solely upon allegations in the bill that the Texas statutes and the proceedings had under them for the formation of the Brazos River Harbor Navigation District violated the due process and equal protection clauses of the Fourteenth Amendment to the Federal Constitution. No application was made for a preliminary injunction. Testimony was taken before a special master and final hearing had before three judges on the assumption that a trial by three judges was required by § 266 of the Judicial Code, as amended by the Act of February 13, 1925. From the judgment of the district court, dismissing the bill on the merits, 13 Fed. (2d) 1007, the case has been brought here by direct appeal under §§ 238 and 266 of the Judicial Code as amended, which permit an appeal from a final decree in an injunction suit of this kind in which the final hearing must be had before three judges, as provided in that section. The jurisdiction of this Court turns on whether or not § 266, as amended, required the hearing below to be before three judges. Section 266 before the amendment of February 13,1925, required, as it still does, all applications for an interlocutory injunction restraining state officers from enforcing state statutes or orders of administrative boards or com- 390 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. missions, upon the ground of unconstitutionality, to be heard by a court of three judges. But as the section then stood, the final hearing might be had before a single district judge who might arrive at a different conclusion from that reached on the preliminary hearing by the three judges, one of whom was a justice of the Supreme Court or a circuit judge. Compare Patterson v. Mobile Gas Co., 271 U. S. 131, and Lemke v. Farmers Grain Co., 258 U. S. 50*. To remove this anomaly and save the right of direct appeal to this Court from the operation of the repealing provisions of the Act of February 13, 1925, § 266 was amended by the addition of the following provisions: “ The requirement respecting the presence of three judges shall also apply to the final hearing in such suit in the district court; and a direct appeal to the Supreme Court may be taken from a final decree granting or denying a permanent injunction in such suit.” See Ex parte Buder, 271 U. S. 461, 465. It is to be noted that this amendment provides that the “ requirement ” of a court of three judges “ shall also apply ” to the final hearing “ in such suit.” The question now presented is whether the phrase “ such suit ” was intended to refer only to a suit in which a preliminary injunction had been in fact sought or to a suit in which an application for such an interlocutory injunction might have been but in fact was not made. Before the amendment the section applied only when interlocutory relief was actually sought, regardless of the scope of the bill, and direct appeal to this Court was permitted only from the determination of the court of three judges on such an application. The general purpose of the Act of February 13, 1925 was to relieve this Court by restricting the right to a review by it. Moore v. Fidelity & Deposit Co., 272 U. S. 317. The specific purpose of the amendment tn 391 SMITH V. WILSON. Opinion of the Court. 388 § 266, as already noted, was to end the anomalous situation in which a single district judge, on the final hearing, might reconsider and decide questions already passed upon by the three, judges on the application for an interlocutory injunction. Both purposes are accomplished if the amendment is taken as its language suggests, not to extend the application of the section with respect either to the requirement of three judges or the right of direct appeal to any case in which an interlocutory injunction is not sought. We conclude that the section as amended does not require a court of three judges on the final hearing unless an application for preliminary injunction is pressed to a hearing. In that case, an appeal either from the determination on the preliminary application or from the final decree may be taken directly to this Court. The plaintiff is thus given an election. He may either make application for an interlocutory injunction, which must be heard by three judges, in which case the final hearing must be before a like court with appeal directly to this Court, or he may not press an application for an interlocutory injunction, in which case the final hearing may be before a single judge, whose decision may be reviewed by the circuit court of appeals and this Court under other applicable provisions of the Judicial Code. Here there was no application for an interlocutory injunction and hence no necessity for a final hearing before three judges, although it may not have been erroneous for three judges to sit, a question we do not find it necessary to decide. There is therefore no jurisdiction in this Court to hear the appeal, which must accordingly be Dismissed. 392 OCTOBER TERM, 1926. Syllabus. 273 U. S. UNITED STATES v. TRENTON POTTERIES COMPANY ET AL. CERTIORARI TO THE CIRCUIT COURT OF-APPEALS FOR THE SECOND CIRCUIT. No. 27. Argued November 30, December 1, 1926.—Decided February 21, 1927. 1. A charge to a jury which was correctly given and adequately covered the case is not made erroneous by a refusal to charge in another correct form or to quote from opinions of this Court, or by the fact that it was inspired by a mistaken view of the law disclosed in a ruling previous to the trial. P. 396. y 2. An agreement of those controlling over 80% of the business of manufacturing and distributing sanitary pottery in the United i States, to fix and maintain uniform prices, violates the Sherman i Act, whether the prices in themselves were reasonable or unrea- \ sonable. Chicago Bd. of Trade v. United States, 246 U. S. 231, (____distinguished. P. 396. 3. In a case of conviction and sentences upon two counts, where the sentences are in part concurrent, but do not, combined, exceed that which could have been imposed on either count alone; where the first count is sufficient and the case under it was properly submitted to the jury, and the record does not suggest that the verdict on that count was induced by evidence introduced upon the other,—objections relating to the second count may be disregarded. P. 401. 4. Under the Sherman Act, the offensive agreement or conspiracy is criminal whether or not followed by efforts to carry it into effect; but where the indictment does not charge its formation in the district, the District Court is without jurisdiction unless some act in pursuance of it took place there. P. 402. 5. Failure of the court to instruct that overt acts in the district were necessary to the jurisdiction or venue, though charging that they were not necessary to constitute the offence, was not a ground for reversal, where the defendants made no request to charge and where the jurisdictional facts were not in dispute but were clearly established by the evidence. P. 402. 6. Where much evidence was taken and a wide range of inquiry covered, a new trial is not lightly to be ordered on technical errors in the admission of evidence which do not affect matters of substance. P. 404. UNITED STATES v. TRENTON POTTERIES. 393 392 Opinion of the Court. 7. In a prosecution of corporations and individuals under the Sherman Act, where the manager of a corporation in the same line of business but which was not one of the defendants, testified on their behalf, and on cross examination, being asked whether his company had not pleaded guilty to a violation of that Act, replied, “ I don’t know anything about that at all,” the answer did not so prejudice the defendants as to justify a reversal, even if the question was improper. P. 404. 8. Upon redirect examination, an inquiry, relevant and otherwise competent may not be excluded merely because of its tendency to discredit the witness by showing his relations with unreliable persons. P. 405. 9. In a prosecution under the Sherman Act, refusal to admit conclusions of defendants’ witnesses as to the existence of competition was not erroneous, when full opportunity was given to prove by details and records of actual transactions the conditions of the industry within the period in question. P. 406. 300 Fed. 550, reversed. Certiorari (266 U. S. 597) to a judgment of the Circuit Court of Appeals which reversed a conviction under the Sherman Act. The defendants were twenty individuals and twenty-three corporations engaged in the manufacturing of vitreous pottery fixtures used in bathrooms and lavatories. Assistant to the Attorney General Donovan, with whom Solicitor General Mitchell and Messrs. Rush H. Williamson, and William D. Whitney, Special Assistants to the Attorney General, were on the briefs, for the United States. Mr. Charles E. Hughes, with whom Messrs. George Wharton Pepper, Edward L. Katzenbach, George H. Calvert, John W. Bishop, Jr., and H. Snowden Marshall were on the brief, for respondents. Mr. Justice Stone delivered the opinion of the Court. Respondents, twenty individuals and twenty-three corporations, were convicted in the district court for south- 394 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. em New York of violating the Sherman Anti-Trust Law, Act of July 2, 1890, c. 647, 26 Stat. 209. The indictment was in two counts. The first charged a combination to fix and maintain uniform prices for the sale of sanitary pottery, in restraint of interstate commerce; the second, a combination to restrain interstate commerce by limiting sales of pottery to a special group known to respondents as “ legitimate jobbers.” On appeal, the court of appeals for the second circuit reversed the judgment of conviction on both counts on the ground that there were errors in the conduct of the trial. 300 Fed. 550. This Court granted certiorari. 266 U. S. 597. Jud. Code, § 240. Respondents, engaged in the manufacture or distribution of 82 per cent, of the vitreous pottery fixtures produced in the United States for use in bathrooms and lavatories, were members of a trade organization known as the Sanitary Potters’ Association. Twelve of the corporate respondents had their factories and chief places of business in New Jersey; one was located in California and the others were situated in Illinois, Michigan, West Virginia, Indiana, Ohio and Pennsylvania. Many of them sold and delivered their product within the southern district of New York and some maintained sales offices and agents there. There is no contention here that the verdict was not supported by sufficient evidence that respondents, controlling some 82 per cent, of the business of manufacturing and distributing in the United States vitreous pottery of the type described, combined to fix prices and to limit sales in interstate commerce to jobbers. The issues raised here by the government’s specification of errors relate only to the decision of the court of appeals upon its review of certain rulings of the district court made in the course of the trial. It is urged that the court below erred in holding in effect (1) that the trial UNITED STATES v. TRENTON POTTERIES. 395 392 Opinion of the Court. court should have submitted to the jury the question whether the price agreement complained of constituted an unreasonable restraint of trade; (2) that the trial court erred in failing to charge the jury correctly on the question of venue; and (3) that it erred also in the admission and exclusion of certain evidence. REASONABLENESS OF RESTRAINT. The trial court charged, in submitting the case to the jury, that if it found the agreements or combination complained of, it might return a verdict of guilty without regard to the reasonableness of the prices fixed, or the good intentions of the combining units, whether prices were actually lowered or raised or whether sales were restricted to the special jobbers, since both agreements of themselves were unreasonable restraints. These instructions repeated in various forms applied to both counts of the indictment. The trial court refused various requests to charge that both the agreement to fix prices and the agreement to limit sales to a particular group, if found, did not in themselves constitute violations of law unless it was also found that they unreasonably restrained interstate commerce. In particular the court refused the request to charge the following: “ The essence of the law is injury to the public. It is not every restraint of competition and not every restraint of trade that works an injury to the public; it is only an undue and unreasonable restraint of trade that has such an effect and is deemed to be unlawful.” Other requests of similar purport were refused including a quotation from the opinion of this Court in Chicago Board of Trade v. United States, 246 U. S. 231, 238. The court below held specifically that the trial court erred in refusing to charge as requested and held in effect that the charge as given on this branch of the case was 396 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. erroneous. This determination was based upon the assumption that the charge and refusals could be attributed only to a mistaken view of the trial judge, expressed in denying a motion at the close of the case to quash and dismiss the indictment, that the “ rule of reason ” announced in Standard Oil Co. v. United States, 221 U. S. 1, and in American Tobacco Co. v. United States, 221 U. S. 106, which were suits for injunctions, had no application in a criminal, prosecution. Compare Nash v. United States, 229 U. S. 373. This disposition of the matter ignored the fact that the trial judge plainly and variously charged the jury that the combinations alleged in the indictment, if found, were violations of the statute as a matter of law, saying: “. . . the law is clear that an agreement on the part of the members of a combination controlling a substantial part of an industry, upon the prices which the members are to charge for their commodity, is in itself an undue and unreasonable restraint of trade and commerce; ...” If the charge itself was correctly given and adequately covered the various aspects of the case, the refusal to charge in another correct form or to quote to the jury extracts from opinions of this Court was not error, nor should the court below have been concerned with the wrong reasons that may have inspired the charge, if correctly given. The question therefore to be considered here is whether the trial judge correctly withdrew from the jury the consideration of the reasonableness of the particular restraints charged. That only those restraints upon interstate commerce which are unreasonable are prohibited by the Sherman Law was the rule laid down by the opinions of this Court in the Standard Oil and Tobacco cases. But it does not follow that agreements to fix or maintain prices are reasonable restraints and therefore permitted by the statute, merely because the prices themselves are reasonable. UNITED STATES v. TRENTON POTTERIES. 397 392 Opinion of the Court. Reasonableness is not a concept of definite and unchanging content. Its meaning necessarily varies in the different fields of the law, because it is used as a convenient summary of the dominant considerations which control in the application of legal doctrines. Our view of what is a reasonable restraint of commerce is controlled by the recognized purpose of the Sherman Law itself. Whether this type of restraint is reasonable or not must be judged in part at least in the light of its effect on competition, for whatever difference of opinion there may be among economists as to the social and economic desirability of an unrestrained competitive system, it cannot be doubted that the Sherman Law and the judicial decisions interpreting it are based upon the assumption that the public interest is best protected from the evils of monopoly and price control by .the maintenance of competition. See United States v. Trans-Missouri Freight Association, 166 U. S. 290; Standard Oil Co. v. United States, supra; American Column Co. v. United States, 257 U. S. 377, 400; United States v. Linseed Oil Co., 262 U. S. 371, 388; Eastern States Lumber Association v. United States, 234 U. S. 600, 614. The aim and result of every price-fixing agreement, if effective, is the elimination of one form of competition. The power to fix prices, whether reasonably exercised or not, involves power to control the market and to fix arbitrary and unreasonable prices. The reasonable price fixed today may through economic and business changes become the unreasonable price of tomorrow. Once established, it may be maintained unchanged because of the absence of competition secured by the agreement for a price reasonable when fixed. Agreements which create such potential power may well be held to be in themselves unreasonable or unlawful restraints, without the necessity of minute inquiry whether a particular price is reasonable or unreasonable as fixed and without placing on the government 398 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. in enforcing the Sherman Law the burden of ascertaining from day to day whether it has become unreasonable through the mere variation of economic conditions. Moreover, in the absence of express legislation requiring it, we should hesitate to adopt a construction making the difference between legal and illegal conduct in the field of business relations depend upon so uncertain a test as whether prices are reasonable—a determination which can be satisfactorily made only after a complete survey of our economic organization and a choice between rival philos-ophies. । Compare United States v. Cohen Grocery Co., 255 U. S. 81; International Harvester Co. v. Kentucky, 234 U. S. 216; Nash n. United States, supra. Thus viewed, the Sherman law is not only a prohibition against the infliction of a particular type of public injury. It “ is a limitation of rights, . . . which may be pushed to evil consequences and therefore restrained.” Standard Sanitary Mjg. Co. v. United States, 226 U. S. 20, 49. That such was the view of this Court in deciding the Standard Oil and Tobacco cases, and that such is the effect of its decisions both before and after those cases, does not seem fairly open to question. Beginning with United States n. Trans-Missouri Freight Association, supra; United States v. Joint Traffic Association, 171 U. S. 505, where agreements for establishing reasonable and uniform freight rates by competing lines of railroad were held unlawful, it has since often been decided and always assumed that uniform price-fixing by those controlling in any substantial manner a trade or business in interstate commerce is prohibited by the Sherman Law, despite the reasonableness of the particular prices agreed upon. In Addyston Pipe& Steel Co. v. United States, 175 U. S. 211, 237, a case involving a scheme for fixing prices, this Court quoted with approval the following passage from the lower court’s opinion, (85 Fed. 271, 293): UNITED STATES v. TRENTON POTTERIES. 399 392 Opinion of the Court. . the affiants say that, in their opinion, the prices at which pipe has been sold by defendants have been reasonable. We do not think the issue an important one, because, as already stated, we do not think that at common law there is any question of reasonableness open to the courts with reference to such a contract.” See also, p. 291. In Swift & Co. v. United States, 196 U. S. 375, this Court approved and affirmed a decree which restrained the defendants “ by combination, conspiracy or contract [from] raising or lowering prices or fixing uniform prices at which the said meats will be sold, either directly or through their respective agents.” In Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373, 408, decided at the same term of court as the Standard Oil and Tobacco cases, contracts fixing reasonable resale prices were declared unenforcible upon the authority of cases involving price-fixing-arrangements between competitors. That the opinions in the Standard Oil and Tobacco cases were not intended to affect this view of the illegality of price-fixing agreements affirmatively appears from the opinion in the Standard Oil case where, in considering the Freight Association case, the .court said (p. 65): “ That as considering the contracts or agreements, their necessary effect and the character of the parties by whom they were made, they were clearly restraints of trade within the purview of the statute, they could not be taken out of that category by indulging in general reasoning as to the expediency or non-expediency of having made the contracts or the wisdom or want of wisdom of the statute which prohibited their being made. That is to say, the cases but decided that the nature and character of the contracts, creating as they did a conclusive presumption which brought them within the statute, such result was 400 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. not to be disregarded by the substitution of a judicial appreciation of what the law ought to be for the plain judicial duty of enforcing the law as it was made.” And in Thompson v. Cayser, 243 U. S. 66, 84, it was specifically pointed out that the Standard Oil and Tobacco cases did not overrule the earlier cases. The decisions in Maple Flooring Association v. United States, 268 U. S. 563, and in Cement Manufacturers’ Protective Association v. United States, 268 U. S. 588, were made on the assumption that any agreement for price-fixing, if found, would have been illegal as a matter of law. In Federal Trade Commission v. Pacific States Paper Trade Association, ante, p. 52, we upheld orders of the Commission forbidding price-fixing and prohibiting the use of agreed price lists by wholesale dealers in interstate commerce, without regard to the reasonableness of the prices. Cases in both the federal and state courts1 have generally proceeded on a like assumption, and in the second circuit the view maintained below that the reasonableness or unreasonableness of the prices fixed must be submitted 1 The illegality of such agreements has commonly been assumed without consideration of the reasonableness of the price levels established. Loder v. Jayne, 142 Fed. 1010; Craft v. McConoughy, 79 Ill. 346; Vulcan Power Co. v. Hercules Powder Co., 96 Cal. 510; Johnson v. People, 72 Colo. 218; People v. Amanna, 203 App. Div. 548; see Trenton Potteries Co. v. Oliphant, 58 N. J. Eq. 507, 521; Beechley v. Mulville, 102 Iowa 602, 608; People v. Milk Exchange, 145 N. Y. 267 (purchase prices). In many of these cases price-fixing was accompanied by other factors contributing to the illegality. Upon the precise question, there has been diversity of view. People v. Sheldon, 139 N. Y. 251; State v. Eastern Coal Co., 29 R. I. 254, 256, 265; Pope, Legal Aspect of Monopoly, 20 Harvard Law Rev. 167, 178; Watkins, Change in Trust Policy, 35 Harvard Law Rev. 815, 821-3; (reasonableness of prices immaterial) contra: Cade & Sons v. Daly, [1910] 1 Ir. Ch. 306; Central Shade Roller Co. v. Cushman, 143 Mass. 353; Skrainka v. Schar ringhausen, 8 Mo. App. 522; Dueber Watch Case Mfg. Co. v. Howard Watch Co., 55 Fed. 851. UNITED STATES v. TRENTON POTTERIES. 401 392 Opinion of the Court. to the jury has apparently been abandoned. See Poultry Dealers' Association v. United States, 4 Fed. (2d) 840. While not necessarily controlling, the decisions of this Court denying the validity of resale price agreements, regardless of the reasonableness of the price, are persuasive. See Dr. Miles Medical Co. v. Park & Sons Co., supra; Boston Store of Chicago v. American Graphophone Co., 246 U. S. 8; United States v. Schrader's Sons, 252 U. S. 85; Federal Trade Commission v. Beechnut Packing Co., 257 U. S. 441. Respondents rely upon Chicago Board of Trade v. United States, supra, in which an agreement by members of the Chicago Board of Trade controlling prices during certain hours of the day in a special class of grain contracts and affecting only a small proportion of the commerce in question was upheld. The purpose and effect of the agreement there was to maintain for a part of each business day the price which had been that day determined by open competition on the floor of the Exchange. That decision, dealing as it did with a regulation of a board of trade, does not sanction a price agreement among competitors in an open market such as is presented here. The charge of the trial court, viewed as a whole, fairly submitted to the jury the question whether a price-fixing agreement as described in the first count was entered into by the respondents. Whether the prices actually agreed upon were reasonable or unreasonable was immaterial in the circumstances charged in the indictment and necessarily found by the verdict. The requested charge which we have quoted, and others of similar tenor, while true as abstract propositions, were inapplicable to the case in hand and rightly refused. The first count being sufficient and the case having been properly submitted to the jury, we may disregard certain 42847°—27----26 402 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. like objections relating to the second count. The jury returned a verdict of guilty generally on both counts. Sentence was imposed in part on the first count and in part on both counts, to run concurrently. The combined sentence on both counts does not exceed that which could have been imposed on one alone. There is nothing in the record to suggest that the verdict of guilty on the first count was in any way induced by the introduction of evidence upon the second. In these circumstances the judgment must be sustained if either one of the two counts is sufficient to support it. Claassen v. United States, 142 U. S. 140; Locke v. United States, 7 Cranch 339, 344; Clifton v, United States, 4 How. 242, 250. QUESTION OF VENUE. The trial court instructed the jury in substance that if it found that the respondents did conspire to restrain trade as charged in the indictment, then it was immaterial whether the agreements were ever actually carried out, whether the purpose of the conspiracy was accomplished in whole or in part, or whether an effort was made to carry the object of the conspiracy into effect. The court below recognized that this charge was a correct statement of the general proposition of law that the offensive agreement or conspiracy alone, whether or not followed by efforts to carry it into effect, is a violation of the Sherman Law. Nash v. United States, supra. And it was clearly the intent and purpose of the trial judge to deal with that aspect of the case in giving it. But the appellate court held the charge erroneous and ground for reversal because the trial judge did not go further and charge the necessity of finding overt acts within the southern district of New York to satisfy jurisdictional requirements. Since the indictment did not charge the formation of the conspiracy or agreement within that district, the court was without jurisdiction unless some act pursuant to the agree- UNITED STATES v. TRENTON POTTERIES. 403 392 Opinion of the Court. ment or conspiracy took place there. Hyde v. United States, 225 U. S. 347; Easterday v. McCarthy, 256 Fed. 651. This part of the charge, so far as respondents deemed it objectionable in that the absence of efforts to carry out the agreement might be taken into account in determining whether it was in fact made, was promptly remedied by an instruction that the jury might consider all the facts in determining whether a combination or conspiracy had been entered into. But respondents made no request to charge with respect to venue or the jurisdictional necessity of overt acts within the district. Neither did they except to the charge as given nor move to dismiss the indictment on that ground. A motion in arrest of judgment was directed to the jurisdictional sufficiency of the indictment but the adequacy of the evidence establishing jurisdiction was not questioned. The reason for this complete failure of respondents to point out the objection to the charge now urged, or otherwise to suggest to the trial court the desirability of a charge upon the facts necessary to satisfy jurisdictional requirements is made plain by an inspection of the record. In point of substance, the jurisdictional facts were not in issue. Although the respondents were widely scattered, an important market for their manufactured product was within the southern district of New York, which was therefore a theatre for the operation of their conspiracy, adjacent to the home of the largest group of the respondents located in a single state. The indictment sufficiently alleged that the conspiracy was carried on in the southern district of New York by combined action under it. The record is replete with the evidence of witnesses for both prosecution and defense, including some of the accused, who testified without contradiction to the course of business within the district, the circulation of price bulletins, and the making of sales there by some of the members of 404 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. the association organized by respondents. The secretary testified that, acting for the association, he effected sales within the district. All of these were overt acts sufficient for jurisdictional requirements. In such a state of the record, the appellate court might well have refused to exercise its discretionary power to disturb the conviction because of the trial court’s failure to give a charge not requested. If this failure to guard against the misinterpretation of a correct charge is to be deemed error it was of such slight consequence in the actual circumstances of the case and could have been so easily corrected by the trial judge had his attention been directed to it, that the respondents should not have been permitted to reap the benefit of their own omission. QUESTIONS OF EVIDENCE. The alleged errors in receiving and excluding evidence were rightly described by the court below as minor points. The trial lasted four and one-half weeks. A great mass of evidence was taken and a wide range of inquiry covered. In such a case a new trial is not lightly to be ordered on grounds of technical errors in ruling on the admissibility of evidence which do not affect matters of substance. We take note only of some of the objections raised which sufficiently indicate the character of others, all of which we have considered. Respondents called as a witness the manager of a potteries corporation which was not a defendant. On cross-examination, he was asked whether he knew that his concern had pleaded guilty to a violation of the Sherman Act, to which he answered,“ I don’t know anything about that at all.” While it may be within the discretion of the trial judge; to limit cross-examination of this type, we would not be prepared to say that such a question, when allowed, would be improper, if its admissibility were urged on the UNITED STATES v. TRENTON POTTERIES. 405 392 Opinion of the Court. ground that it was directed to the bias of the witness, Wabash Screen Door Co. v. Black, 126 Fed. 721, 726; 2 Wigmore, Evidence (2d ed.) § 949, or that it was preliminary to showing his implication in the supposed offense, and thus affecting his credibility. But in any case, we do not think the answer given prejudiced the respondents in any such substantial way as to justify a reversal. Davis v. Coblens, 174 U. S. 719, 727; Blitz v. United States, 153 U. S. 308, 312. It was a part of the government’s case to show that it was the purpose of respondents, in aid of their price-fixing agreement, not to sell second grade or Class “ B ” pottery in the domestic market. The government offered evidence, including the testimony of the secretary of the respondents’ association, to show that a distinct association of jobbers of pottery was cooperating in this effort and that its secretary had tendered his active assistance to confine the sale of this class of pottery to the export trade. On cross-examination of the secretary of the respondents’ association, the fact was brought out that at one time twenty out of twenty-four members were selling Class “ B ” pottery in the domestic market. On re-direct examination, the government asked questions of the witness tending to show that at about that time the secretary of the Jobbers’ Association had been called for examination before a committee of the New York Legislature, conducting a general investigation into restraints of trade and extortions in connection with the building industry in New York City and vicinity, an investigation of which the lower court took judicial notice. It was held below and it is urged here that because of the known character of the investigation, the evidence should have been excluded because it improperly “ smirched ” the witness by showing that he had relations with an “ unreliable ” person. But the brief statement which we have given of 406 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. the record makes it plain, that the testimony sought was material in explaining the failure of the members of the respondents’ association at that time to confine their sales of Class “ B ” pottery to the Export market as promised. The inquiry was not directed to the impeachment of the government’s own witness. Its purpose was to dispel the adverse impression possibly created by the cross-examination. An inquiry otherwise relevant and competent may not be excluded merely because it tends to discredit the witness by showing his relations with unreliable persons. Respondents called numerous witnesses who were either manufacturers or wholesale dealers in sanitary pottery, to show that competition existed among manufacturers, particularly the respondents, in the sale of such pottery. On direct examination these witnesses were asked in varying form, whether they had observed or noted competition among the members of the association. The questions were objected to and excluded on the ground that they were too general and vague in character and called for the opinion or conclusion of the witness. Whenever the witness was asked as to the details of transactions showing competition in sales, his testimony was admitted and the introduction of records of prices in actual transactions was facilitated by stipulation. Whether or not such competition existed at any given time is a conclusion which could be reached only after the consideration’ of relevant data known to the witness. Here the effort was made to show the personal conclusion of the witness without the data and without, indeed, showing that the conclusion was based upon knowledge of relevant facts. Hence, the offered evidence, in some instances, took the form of vague impressions, or recollections of the witness as to competition, without specifying the kind or extent of competition. 407 SWISS OIL CORP. V. SHANKS. Syllabus. 392 A certain latitude may rightly be given the court in permitting a witness on direct examination to testify as to his conclusions, based on common knowledge or experience. Compare Erie R. R. v. Linnekogel, 248 Fed. 389; 2 Wigmore, § 1929. Even if these questions could properly have been allowed here, we cannot say that the discretion of the court was improperly exercised in excluding the conclusions of the witnesses as to competitive conditions when full opportunity was given to prove by relevant data the conditions of the industry within the period in question. Other objections urged by respondents to the sufficiency of the indictment and charge have received our consideration but do not require comment. It follows that the judgment of the circuit court of appeals must be reversed and the judgment of the district court reinstated. Reversed. Mr. Justice Van Devanter, Mr. Justice Sutherland and Mr. Justice Butler dissent. Mr. Justice Brandeis took no part in the consideration or decision of this case. SWISS OIL CORPORATION v. SHANKS, AUDITOR. ERROR TO THE COURT OF APPEALS OF THIJ COMMONWEALTH OF KENTUCKY. No. 148. Argued January 21, 1927.—Decided February 21, 1927. 1. Upon review of a decision of a state court construing the state law as denying the relief sought by the appealing party even if the particular state statute attacked by him were assumed to be invalid, the constitutionality of that statute is not involved in this Court. P. 411. 408 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. 2. A state tax, called a “ license ” or “ franchise ” tax, measured by 1% of the market value of the annual production and imposed, in addition to general ad valorem property taxes, on producers of petroleum only, is not in violation of the Equal Protection Clause of the Fourteenth Amendment, even if itself a property tax, since a separate classification of petroleum producers for tax purposes is not palpably arbitrary or unreasonable. P. 412. 3. The Fourteenth Amendment does not require uniformity in taxation or forbid double taxation. P. 413. 208 Ky. 64, affirmed. Error to a judgment of the Court of Appeals of Kentucky which reversed a judgment in mandamus commanding Shanks, as Auditor of Public Accounts, to issue a warrant for a refund of taxes to the plaintiff Oil Company. Mr. A. Owsley Stanley, with whom Messrs. Edward L. McDonald, Edward C. O’Rear, William T. Fowler, and William L. Wallace were on the briefs, for plaintiff in error. Mr. Charles F. Creal, Assistant Attorney General of Kentucky, with whom Mr. Frank E. Daugherty, Attorney General of Kentucky, was on the brief, for defendant in error. Mr. Justice Stone delivered the opinion of the Court. The Swiss Oil Corporation, plaintiff in error, instituted a mandamus proceeding in the Circuit Court of Franklin County, Kentucky, to compel the state auditor, the defendant in error, to issue a warrant for the refund of taxes alleged to have been illegally assessed against it, on the ground among others, that the taxing statute was repugnant to the Constitution of the United States. This is the appropriate procedure, under the state law, for compelling a return to the taxpayer of taxes improperly collected. § 162, Carroll Ky. Stat. 1922; Craig, Auditor v. Renaker, 201 Ky. 576, SWISS OIL CORP. v. SHANKS. 409 407 Opinion of the Court. The trial court gave judgment for plaintiff which was reversed on appeal to the Court of Appeals of Kentucky. 208 Ky. 64. The case comes here on writ of error. Jud. Code, § 237. Plaintiff is engaged in producing crude oil in Kentucky and delivering it to pipe lines for transportation to points outside of the state. The tax in question was levied for the period from March, 1922 to February, 1924, pursuant to the Act of March 29, 1918, c. 122, Acts 1918, p. 540, which requires those “ producing crude petroleum oil ” in the state to pay “ in lieu of all other taxes on the wells producing said crude petroleum ” an annual tax “ of one per centum of the market value of all crude petroleum so produced.” Section 3 of the Act provides “the tax hereby provided for shall be imposed and attach when the crude petroleum is first transported from the tanks or other receptacles located at the place of production.” By other sections those engaged in the business of transporting oil are required to report to the tax officials, the amount of oil transported by them and to pay the tax, and they are authorized to collect the amount of the tax from the producer, either in money or crude petroleum. This Act, as stated in its title, is an amendment and re-enactment of the Act of May 2, 1917, c. 7, Acts 1917, p. 40, which similarly required oil producers to pay in lieu of other taxes a “ license ” or “ franchise ” tax for the “ right or privilege of engaging in such business,” within the state. The producers themselves, under the 1917 Act, were required to pay the tax and to report the amount of the oil produced to the State Tax Commission on the first day of July of that year and at the end of each succeeding three months. The taxpayer was entitled, under the 1917 Act, to notice of the valuation placed by the Commission upon the oil produced and had ten days from the time of receiving notice to go before the Commission and contest the valuation. He was privileged to 410 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. introduce evidence and the Commission was authorized, after a hearing, to change the value set for taxation purposes upon the oil produced. This Act, as amended, was construed by the Kentucky Court of Appeals, in an earlier decision, Ray dure n. Board of Supervisors, 183 Ky. 84. It there held that the legislature had no power under §§ 171 and 172 of the state constitution to substitute the production tax authorized by the Act of 1917 as amended by the Act of 1918 for the ad valorem method of taxing oil producing property required by the constitution, nor to exempt such property from ad valorem taxation. Following this decision, the wells and oil producing property of plaintiff and others have been subjected to state, county and local ad valorem taxes in addition to the production tax imposed upon plaintiff. Plaintiff in the state court drew in question the validity of the Act of 1918 as thus construed under the Kentucky constitution. It contended that if construed as imposing a license tax, the statute was unconstitutional in attempting to substitute an occupation for the ad valorem tax required by § 172 of the state constitution. The main contention however was that the tax in substance was a property and not a license tax and hence invalid under § 171 of the state constitution requiring uniform taxation, since oil properties were subject to two property taxes whereas other classes of property were subject to but one. These contentions translated into terms of the Federal Constitution were urged below and renewed here. It is argued (a) that the Act of 1918 as construed and administered by the state .authorities imposes double taxation upon the plaintiff not put on other classes of property, thus denying the equal protection of the laws guaranteed by the Fourteenth Amendment; (b) that it authorizes a tax upon interstate shipments, thus interfering with interstate commerce in violation of Art. I, SWISS OIL CORP. V. SHANKS. 411 407 Opinion of the Court. § 8 of the Federal Constitution; (c) that the tax is assessed and collected without notice and without opportunity to the taxpayer to be heard, in violation of the due process clause of the Fourteenth Amendment. The court below upheld the tax as a license or production tax valid under the laws and constitution of Kentucky, notwithstanding the imposition of a separate ad valorem tax upon the oil producing lands or leases. It disposed of the objections to the tax under the Federal Constitution, saying: “ Each of these criticisms is leveled at, and can affect only, the amendment of 1918, and there is, and could be, no criticism of the title of the original act passed in 1917, or any claim that it imposed any burden upon interstate commerce, or that it did not afford the taxpayer ample opportunity to be heard before the tax attached. “ The original act imposes, just as does the amendment, a graduated occupational tax, measured by the amount of business done by each and every oil producer in the state. The amendment is simply a re-enactment of the original act, with the latter’s administrative features so changed as to make the collection of the tax both more certain and less burdensome upon the taxpayer and the assessing and collecting officials. If any or all of the above contentions are sound, the amendment would be destroyed, but this would leave the original act in force, and unamended. Precisely the same tax would have been collected from oil producers in either event.” The court also pointed out that as this is a proceeding by a taxpayer for a refund of taxes under a statute which permits the refund only if the taxes paid were not due, there could in any event be no recovery by the plaintiff since the tax, if not due under the Act of 1918, was due and payable under the Act of 1917. As the case is brought here from a state court, the construction put by the court below upon the statutes 412 OCTOBER TERM, 1926. Opinion of the Court. 273 IL S. and constitution of its own state is not open to review here. Southwestern Oil Co. v. Texas, 217 U. S. 114, 119; Brown-Forman Co. v. Kentucky, 217 U. S. 563, 569. Since the Kentucky Court of Appeals has held that the plaintiff is not entitled under the state law to the relief prayed even if the Act of 1918 be deemed invalid, no question as to the validity of that act under the Federal Constitution is presented for decision on this record. But plaintiff argues that this determination of the state court presupposes the validity under the Federal Constitution of the Act of 1917, which has the same vice as the later act. It is contended, as it was of the Act of 1918, that the one per cent, production tax imposed is in effect a property tax. Since the constitution of Kentucky ,as construed in Ray dure v. Board of Supervisors, supra, does not admit of the substitution of a production tax for an ad valorem tax and requires the latter to be levied in addition to the production tax, there is therefore double taxation not imposed on other classes of property and hence a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment. We are unable to distinguish the Act of 1917 in its constitutional aspects from the statute of Kentucky imposing a license tax at the rate of one and one-fourth cents per gallon upon those engaged in the business or occupation of rectifying or blending spirits, considered by this Court in Brown-Forman Co. v. Kentucky, supra. There the tax imposed was assailed on the ground that it was a property tax not assessed upon similar classes of property whether produced within or without the state, and that its imposition resulted in a denial of the equal protection of the laws. But this Court, accepting the state court’s interpretation of the tax as a license tax, upheld the statute as based upon a classification which was neither arbitrary nor unreasonable, saying that the reasonableness of the classification was the ultimate ques- 413 SWISS OIL CORP. v. SHANKS. Opinion of the Court. 407 tion to be determined whether the tax be regarded as a license or a property tax (p. 571). See also Southwestern Oil Co. v. Texas, supra, where an occupation tax upon wholesale dealers in coal and other mineral oils was upheld despite the fact that wholesale dealers in other commodities were not similarly taxed. Without a labored analysis of the nature of the taxing measure, we see no reason for not accepting the interpretation of the state court that this statute authorizes a license tax to which there can be no serious constitutional objection. Texas Co. v. Brown, 258 U. S. 466, 481; Bowman v. Continental Oil Co., 256 U. S. 642, 649; cf. Watson v. State Comptroller, 254 U. S. 122. But even if regarded as a property tax, it is imposed alike upon all crude oil produced within the state and there is nothing in the record to suggest that the classification is so palpably arbitrary or unreasonable as to render it invalid. Unlike the state constitution, Dawson v. Kentucky Distilleries Co., 255 U. S. 288; Greene v. Louisville & Interurban R. R., 244 U. S. 499, the Fourteenth Amendment does not require uniformity of taxation, Davidson v. New Orleans, 96 U. S. 97, 105, nor forbid double taxation. St. Louis, S. W. Ry. v. Arkansas, 235 U. S. 350, 367, 368; Shaffer v. Carter, 252 U. S. 37, 58; Fort Smith Lumber Co. v. Arkansas, 251 U. S. 532, 533; cf. Fidelity & Columbia Trust Co. v. Louisville, 245 U. S. 54, 58; Cream of Wheat Co. v. Grand Forks Co., 253 U. S. 325; Citizens National Bank v. Durr, 257 U. S. 99, 109. It is sufficient, as stated, that there be some adequate or reasonable basis for the classification. Kidd v. Alabama, 188 U. S. 730, 733; Watson n. State Comptroller, supra, 124, 125; Maxwell v. Bugbee, 250 U. S. 525, .540; Northwestern Life Ins. Co. v. Wisconsin, 247 U. S. 132, 139; Coulter v. Louisville & Nashville R. R., 196 U. S. 599, 608, 609. The particular classification adopted “is not open to objection unless it precludes the assumption that [it] was 414 OCTOBER TERM, 1926. Counsel for Parties. 273 U. S. made, in the exercise of legislative judgment and discretion.” Stebbins v. Riley, 268 U. S. 137, 143. Judgment affirmed. HAYMAN v. CITY OF GALVESTON et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS No. 155. Submitted January 21, 1927.—Decided February 21, 1927. 1. Quaere whether, in the circumstances mentioned in the opinion, a regulation by a municipal hospital board excluding osteopathic physicians from practicing in the hospital, was action by the State, in the sense of the Fourteenth Amendment? P. 416. 2. A person not claiming to be a citizen of the State, or of the United States, but having the right, under the state law, to practice his profession of osteopathic physician, is not deprived of rights under the Federal Constitution,—the Privileges and Immunities Clause, and the Due Process and Equal Protection clauses of the Fourteenth Amendment—by a regulation excluding osteopaths from practicing in a hospital maintained by the State and its municipality partly for the instruction of medical students attending the state university. P. 416. 3. In Art. XVI, § 31, of the Constitution of Texas, the limitation that “no preference shall ever be given by law to any schools of medicine ” is directed only to qualifications for admission to practice. P. 417. Affirmed. Appeal from a decree dismissing for want of equity a bill to enjoin the respondents from excluding appellant, or other osteopathic physicians, from practicing their profession in the hospital maintained by the City of Galveston and from denying admission to patients who wish to be treated by appellant or other osteopathic physicians. Mr. D. A. Simmons for appellant, submitted. No appearance for appellees. HAYMAN v. GALVESTON. 415 414 Opinion of the Court. Mr. Justice Stone delivered the opinion of the Court. Appellant, a resident of Texas, an osteopathic physician, duly licensed to practice medicine in the state, brought suit in the district court for southern Texas against the City of Galveston, the Board of Commissioners of the city, and the members of the Governing Board of the John Sealy Hospital, maintained by the city, to enjoin the enforcement of any rule or regulation excluding appellant or other osteopathic physicians from practicing their profession in the hospital, and denying admission to patients who wish to be treated by appellant or other osteopathic physicians. The bill alleged that the State of Texas, acting through the Board of Regents of the State University, had leased land to appellee, the City of Galveston, on which it was maintaining a municipal hospital in accordance with the provisions of the lease. The lease, which is annexed to the bill of complaint and made part of it, stipulates that the State reserves the right of use of the operating amphitheatre, the wards and grounds of the hospital, by the faculty of the Medical Department of the State University, for purposes of clinical instruction of medical students attending the University in Galveston; and reserves also the right for such purposes to control the treatment of all charity patients. The city undertakes to permit the use of the facilities of the hospital for such instruction. The lease further provides that the hospital shall be managed and controlled by a hospital board, which is given the exclusive right to prescribe rules and regulations for the management and conduct of the hospital and to control its internal government. It is alleged that appellees, the Board of Managers, have made regulations excluding appellant and other licensed osteopathic physicians from practicing in the hospital and excluding patients who desire to be treated by appellant or other osteopaths. The bill does not set up diversity of citizenship of the parties 416 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. and the only ground of jurisdiction alleged is that the suit is one arising under the Constitution of the United States. On motion directed to the pleadings, the bill was dismissed for want of equity. The case comes here on direct appeal. Jud. Code, § 238, before amended. The case as presented carries to the point of extreme attenuation the principle that action by state officials depriving a person of property is to be deemed the action of the state for the purpose of determining whether the deprivation is within the prohibition of the Fourteenth Amendment. Home Telephone & Telegraph Co. v. Los Angeles, 227 U. S. 278; Raymond v. Chicago Traction Co., 207 U. S. 20, 35, 36. Appellant does not point to any law of the state denying his asserted constitutional right to practice medicine in the John Sealy Hospital. The bill did not set up that appellees purported to act under any statute of the state denying such right. Appellant in fact argues that the state constitution and laws confer upon him the asserted right which is infringed by the action of the hospital board. But if it be assumed that the question presented is the same as though the state legislature had enacted the regulation adopted by the hospital board, W aterworks Co. v. Owensboro, 200 U. S. 38, appellant fails to suggest, and we fail to perceive, any substantial basis for asserting that rights guaranteed to him by the Fourteenth Amendment have been infringed. The bill does not allege that appellant is a citizen of the state or of the United States, and there does not appear to be any substantial basis for urging that the action of the board abridges any privileges or immunities of a citizen of the United States. The protection of the due process clause extends to persons who are non-citizens. But the only protection claimed here is that of appellant’s privilege to practice his calling. However extensive that protection may be in other situations, it can not we think, be said that all licensed physicians 417 HAYMAN V. GALVESTON. Opinion of the Court. 414 have a constitutional right to practice their profession in a hospital maintained by. a state or a political subdivision, the use of which is reserved for purposes of medical instruction. It is not incumbent on the state to maintain a hospital for the private practice of medicine. Compare Heim v. McCall, 239 U. S. 175. But it is argued that if some physicians are admitted to practice in the hospital all must be or there is a denial of the equal protection of the laws. Even assuming that the arbitrary exclusion of some physicians would have that legal consequence in the circumstances of this case, the selection complained of was based upon a classification not arbitrary or unreasonable on its face. Under the Texas constitution and statutes, anyone who shall “ offer to treat any disease or disorder, mental or physical, or any physical deformity or injury by any system or method or to effect cures thereof ” is a physician and may be admitted to practice within the state. Art. XVI, §31, Texas Constitution, Complete Tex. Stat. 1920, Art. 5739, 5741, 5745. We cannot say that a regulation excluding from the conduct of a hospital the devotees of some of the numerous systems or methods of treating diseases authorized to practice in Texas, is unreasonable or arbitrary. In the management of a hospital, quite apart from its use for educational purposes, some choice in methods of treatment would seem inevitable, and a selection based upon a classification having some basis in the exercise of the judgment of the state board whose action is challenged is not a denial of the equal protection of the laws. Compare Collins v. Texas, 223 U. S. 288; Watson v. Maryland, 218 U. S. 173; Crane v. Johnson, 242 U. S. 339; Jacobson v. Massachusetts, 197 U. S. 11. The validity of the action of the board under the Texas constitution is also before us. Art. XVI, § 31, of the Texas Constitution provides: 42847°—27---27 418 OCTOBER TERM, 1926. Syllabus. 273 U.S. tl The legislature may pass laws prescribing the qualification of practitioners of medicine in this state, and to punish persons for malpractice, but no preference shall ever be given by law to any schools of medicine.” The limitation of the provision is obviously directed to the qualifications of those to be admitted to the practice of their profession in the state and has nothing to do with the qualifications of those who are to be allowed to practice in a state hospital or to participate in an educational enterprise conducted by the state. Cf. Germany n. The State, 62 Tex. Cr. Rep. 276; Ex parte Gerino, 143 Cal. 412; Harris v. Thomas (Tex. Civ. App.), 217 S. W. 1068. The action of the board does not violate rights or immunities guaranteed by either the state or the Federal Constitution. Judgment affirmed. TYSON AND BROTHER — UNITED THEATRE TICKET OFFICES, INCORPORATED, v. BANTON, DISTRICT ATTORNEY, et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK No. 261. Argued October 6, 7, 1926.—Decided February 28, 1927. 1. Sections 167 and 172, c. 590, N. Y. Ls. 1922, the former declaring that the price of or charge for admission to theatres, places of amusement or entertainment, or other places where public exhibitions, games, contests or performances are held, is a matter affected with a public interest, and the latter forbidding the resale of any ticket or other evidence of the right of entry to any theatre, etc., at a price in excess of fifty cents in advance of the price printed on the face of such ticket or other evidence of the right of entry, contravene the Fourteenth Amendment. Pp. 429, 445. 2. The validity of the declaration (§ 167) that the price of admission is a matter “ affected with a public interest,” is in this case necessarily involved in determining the question directly 419 TYSON & BROTHER v. BANTON. Syllabus. 418 presented, viz., the validity of the price restriction on resales of tickets. P. 429. 3. The right of the owner to fix a price at which his property shall be sold or used is an inherent attribute of the property itself, and, as such, within the protection of the Due Process of Law clauses of the Fifth and Fourteenth Amendments. P. 429. 4. The power to regulate property, services or business can be invoked only under special circumstances; and it does not follow that because the power may exist to regulate in some particulars it exists to regulate in others or in all. P. 430. 5. The authority to regulate the conduct of a business or to require a license, comes from a branch of the police power which may be quite distinct from the power to fix prices. P. 430. 6. The power to fix prices does not exist in respect of merely private property or business, but exists only where the business or the property involved has become “affected with a public interest.” P. 430. 7. A business is not affected with a public interest merely because it is large or because the public are warranted in having a feeling of concern in respect of its maintenance. Nor is the interest meant such as arises from the mere fact that the public derives benefit, accommodation, ease or enjoyment from the existence or operation of the business; and while the word has not always been limited narrowly as strictly denoting “ a right,” that synonym more nearly than any other expresses the sense in which it is to be understood. P. 430. 8. Characterizations of businesses as “ quasi public, not strictly private,” and the like, while well enough as a basis for upholding police regulations in respect of the conduct of particular businesses, cannot be accepted as equivalents for the description “ affected with a public interest,” as that phrase is used in the decisions of this Court as the basis for legislative regulation of prices. P. 430. 9. A declaration of the legislature that a business is affected with a public interest is not conclusive upon the judiciary in determining the validity of a regulation fixing prices in the business. P. 431. 10. The language of an opinion (Munn v. Illinois, 94 U. S. 113, 126) must be limited to the case under consideration. P. 433. 11. A business or property, in order to be affected with a public interest, must be such or be so employed as to justify the conclusion that it has been devoted to a public use and its use thereby, in effect, granted to the public. P. 434. 420 OCTOBER TERM, 1926. Argument for Appellant. 273 U. S. 12. Each of the decisions of this Court upholding governmental price regulation, aside from cases involving legislation to tide over temporary emergencies, has turned upon the existence of conditions, peculiar to the business under consideration, which bore such a substantial and definite relation to the public interest as to justify an indulgence of the legal fiction of a grant by the owner to the public of an interest in the use. P. 438. 13. A theatre, though a license may be required, is a private enterprise; the license is not a franchise putting the proprietor under a duty to furnish entertainment to the public and admit all who apply. P. 439. 14. The contention that, historically considered, places of entertainment may be regarded as so affected with a public interest as to justify legislative regulation of their charges, is rejected. P. 441. 15. A statutory provision fixing the prices at which theatre tickets may be resold can not be sustained as a measure for preventing fraud, extortion, and collusive arrangements between theatre managers and ticket brokers. P. 442. 16. Constitutional principles, applied as they are written, must be assumed to operate justly and wisely as a general thing, and they may not be remolded by lawmakers or judges to save exceptional cases of inconvenience, hardship, or injustice. P. 445. Reversed. Appeal from a decree of the District Court denying a temporary injunction in a suit brought by the appellant, a licensed ticket-broker corporation in New York, to restrain the District Attorney of New York County and the State Comptroller from forfeiting the license, forfeiting the bond accompanying the same, and prosecuting criminal proceedings, under the state law, because of the appellant’s failure to conform to a provision thereof limiting the prices at which it may resell tickets, which it challenges as invalid under the Fourteenth Amendment. Mr. Louis Marshall, with whom Mr. James Marshall was on the brief, for appellant. The business of a ticket broker is lawful and cannot be prohibited. Theatre tickets are property in the constitutional sense. People ex rel. Tyroler v. Warden of 421 TYSON & BROTHER v. BANTON. Argument for Appellant. 418 City Prison, 157 N. Y. 116; People ex rel. Fleischmann v. Caldwell, 64 App. Div. 46; aff’d 168 N. Y. 671; People v. Marks, 64 Mise. Rep. 679; Collister v. Hayman, 183 N. Y. 250; Matter of Newman, 109 Mise. Rep. 622; People v. Weller, 237 N. Y. 320. It is unreasonable to suggest that the price of theatre tickets is “ affected with a public interest ” when this is not true of the prices of necessaries of life and wages. The limitations on the power of the Legislature to fix the price of commodities or of services, or to limit the right to contract with regard to them, were stated in People v. Budd, 117 N. Y. 15, aff’d sub nom. Budd v. New York, 143 U. S. 517; People v. Weller, 237 N. Y. 322; Adkins v. Childrens Hospital, 261 U. S. 525; Adair v. United States, 208 U. S. 174; Coppage v. Kansas, 236 U. S. 14. Distinguishing, Wilson v. New, 243 U. S. 322; Block v. Hirsh, 256 U. S. 135; Brown Holding Co. v. Feldman, 256 U. S. 170; and Levy Leasing Co. v. Siegel, 258 U. S. 242. Other applicable decisions are, Adams v. Tanner, 244 U. S. 590; Allgeyer v. Louisiana, 165 U. S. 578; Carrollton v. Bazette, 159 Ill. 283; People ex rel. Moskowitz v. Jenkins, 202 N. Y. 53; People ex rel. Tyroler v. Warden, 157 N. Y. 116; Collister v. Hayman, 183 N. Y. 250; Producers Transp. Co. v. R. R. Comm’rs, 251 U. S. 230; Pub. Util. Comm. v. Duke, 266 U. S. 570; Frost v. R. R. Comm., 271 U. S. 583. Power to| fix the price of theatre tickets was denied in People v. Newman, 109 Mise. Rep. 622; Ex parte Quarg, 149 Cal. 79; People v. Steele, 231 Ill. 340; Chicago v. Powers, 231 Ill. 531; People v. Weiner, 271 Ill. 74; Chicago v. Netcher, 183 Ill. 104; People ex rel. Cort v. Thompson, 283 Ill. 87. Opinion of the Justices, 247 Mass. 589, was merely an advisory opinion. Neither the business of conducting a theatre nor that of a ticket broker is affected with a public interest. Wolff Packing Co. v. Industrial Court, 262 U. S. 522; 267 U. S. 422 OCTOBER TERM, 1926. Argument for Appellee. 273 U.S. 552; Dorchy v. Kansas, 264 U. S. 286; National Bank v. Mechanics Nat. Bank, 94 U. S. 438; Rensselaer Glass Factory v. Reid, 5 Cowen 608; Gray v. Bennet, 3 Mete. 522; Dunham v. Gould, 16 Johns. 367; Houghton v. Page, 2 N. H. 42; Mason v. Callender, 2 Minn. 350; Kermot v. Ayer, 11 Mich. 181; Adriance n. Brooks, 13 Tex. 279. Such cases as Munn v. Illinois, 94 U. S. 113; and German Alliance Ins. Co. v. Kansas, 233 U. S. 389, proceed upon the principle that an emergency existed. See Pennsylvania Coal Co. v. Mahon, 260 U. S. 293, and Adkins v. Childrens Hospital, supra. Terminal Taxicab Co. v. District of Columbia, 241 U. S. 252, distinguished. See also Yellow Taxicab Co. v. Gaynor, 82 Mise. Rep. 94; Schmid-inger v. Chicago, 226 U. S. 578; Burns Baking Co. v. Bryan, 264 U. S. 505; People ex rel. Armstrong v. Warden, 183 N. Y. 226. That even a theatre, and a fortiori, those who are engaged in the business of selling tickets entirely outside of the theatre, do not come within the purview of the doctrine on which the State relies, is apparent from the decisions in Collister v. Hayman, 183 N. Y. 250; People ex rel. Burnham v. Flynn, 189 N. Y. 160; Aaron v. Ward, 203 N. Y. 355, and Wolcott v. Shubert, 217 N. Y. 212. People v. King, 110 N. Y. 418 distinguished. People ex rel. Cort v. Thompson, 283 Ill. 87. Mr. Felix C. Benvenga, with whom Messrs. Robert D. Petty and Edwin B. McGuire were on the brief, for appellee Banton. The Court of Appeals of the State of New York has upheld the statute in its entirety, People v. Weller, 237 N. Y. 316; aff’g 207 App. Div. 337, and this Court has upheld it in part, Weller v. New York, 268 U. S. 319. The statute was passed in 1922. During 1923, at least three states passed statutes relating to the sale of tickets to places of amusement. Illinois, L. 1923, p. 323; New Jersey, L. 1923, p. 143, ch. 71; Connecticut, L. 1923, ch. 423 TYSON & BROTHER v. BANTON. Argument for Appellee. 418 48. During 1924, while a similar bill was pending in the Massachusetts Senate, the Justices of the Supreme Judicial Court, in a carefully considered advisory opinion, in which People v. Weller, supra, was cited with approval, advised the Senate that the bill before it was constitutional. Opinion of the Justices, 247 Mass. 589. Thereafter, an act was passed, containing the substantial features of the proposed bill. See Ls. Massachusetts, 1924, c. 497, p. 551. The conception of different law-making bodies that the business of selling theatre tickets so far affects the public welfare as to require legislative regulation, cannot have been accidental and without cause. German Alliance Ins. Co. v. Lewis, 233 U. S. 389. Their determination, after investigation, must have great weight. McLean v. Arkansas, 211 U. S. 539; Patsone v. Pennsylvania, 232 U. S. 138; Radice v. New York, 264 U. S. 292; Jones v. Portland, 245 U. S. 217; Block v. Hirsh, 256 U. S. 135; Armour v. North Dakota, 240 U. S. 510; People ex rel. Durham v. La Fetra, 230 N. Y. 429; Schieffelin n. Hylan, 236 N. Y. 254. In determining whether local conditions justify state legislation, this Court should not only give great weight to the estimate of the state Legislature as to the existence of evils, but should give a cumulative effect to the recognition of the courts of the same state that those evils exist. Green n. Frazier, 253 U. S. 233; Jones v. Portland, 245 U. S. 217; People v. Newman, 109 Mise. Rep. 622; People v. Weller, supra. To concede that the only cure for the evil is some remedy initiated by the managers of the theatres is to admit that the State is powerless to promote the general welfare of the people and to accomplish the purposes for which governments are founded. People ex rel. Durham v. La Fetra, supra; People v. Weller, supra. The extent to which regulation may reasonably go depends upon the nature of the business—whether it is 424 OCTOBER TERM, 1926. Argument for Appellee. 273 U. S. “ affected with a public interest ”; the fact that it closely touches a great many people, and that it may afford opportunities for imposition and oppression, as in cases of monopoly and the like. The business of conducting a theatre, though in one sense private, is not “ strictly ” private; it is a business that is “affected with a public interest,” People v. King, 110 N. Y. 418; Aaron v. Ward, 203 N. Y. 351; People v. Weller, 237 N. Y. 322; People ex rel. Cort Theatre Co. v. Thompson, 283 Ill. 87; Opinion of the Justices, 247 Mass. 589. It is because the business is affected with a public interest that governmental regulation is justified. As the population becomes more congested in great cities, as the hours of labor become shorter, the necessity of affording recreation, amusement and education to the inhabitants becomes more imperative. Therefore, the theatre becomes more essential to the welfare of the public; it becomes more “ affected with a public interest.” People v. Weller, supra; 37 Harvard L. R. 1127. Historically considered, theatres may be regarded as so affected. The Attic Theatre, Haigh, [3d ed.] p. 4, 330; Theatre of the Greeks, Donaldson, 309; 15 Amer. Cyc. 685; 26 Ency. Brit. [11th ed.] 736; Law of the Theatre, Wandell, p. 3. And in the United States, theatres have been subject to governmental regulation from earliest times, Opinion of the Justices, supra; People ex rel. Cort v. Thompson, supra; Cecil v. Green, 161 Ill. 265. The modem trend is shown by 19 R. C. L. 722. See also Egan v. San Francisco, 165 Cal. 576; Los' Angeles v. Dodge, 51 Cal. App. 492; Schieffelin v. Hylan, 236 N. Y. 254; People ex rel. Cort v. Thompson, supra. If the business of conducting a theatre is a business affected with a public interest, that of reselling theatre tickets is also affected. Opinion of the Justices, supra; People v. Weller, supra. Assuming that the business may not, in its origin, have been affected with a public interest, yet because of the abuses which have grown up in con- 425 TYSON & BROTHER v. BANTON. Argument for Appellee. 418 nection with it, it has become so affected. German Alliance Ins. Co. v. Lewis, supra. Although the mere declaration by a legislature that a business is affected with a public interest is not conclusive of the question whether its attempted regulation on that ground is justified, yet the indication by the legislature of its own purposes may certainly, in some degree, guide the courts in their consideration of the validity of the legislative assertion of power. People v. Weller, supra; Block v. Hirsh, supra; Opinion of the Justices, supra. The general principle is that a state legislature may, under its police power, regulate prices and charges; that the extent to which regulation may reasonably go depends upon the nature of the business—whether it is “ affected with a public interest ” ; the fact that it touches a great many people, and that it may afford opportunities for imposition and oppression, as cases of monopoly and the like. Munn v. Illinois, 94 U. S. 113; Budd v. New York, 143 U. S. 517; Brass v. Stoeser, 153 U. S. 391 ; German Alliance Ins. Co. v. Lewis, 233 U. S. 389; Block v. Hirsh, supra; Brown n. Feldman, 256 U. S. 170; Wolff Packing Co. v. Industrial Court, 262 U. S. 522. Since Munn v. Illinois (1876), this method of regulation has been familiar in all American courts, and many kinds of business carried on without special franchises or privileges have been treated as public in character, and declared subject to legislative control. Ratcliff v. Stockyards Co., 74 Kan. 1; Opinion of the Justices, supra, and many cases cited therein. The illustrations given in the cases cited show that the doctrine of the Munn case has not only been adhered to, but has been expanded and advanced to meet conditions as they arose. Burdick, Law of the Constitution, § 272; Producers Transp. Co. v. R. R. Comm., 251 U. S. 228; People ex rel. Durham v. La Fetra, supra; Frost v. R. R. Comm., 271 U. S. 589; People v. King, 110 N. Y. 418; Aaron v. Ward, 203 N. Y. 351 ; Civil Rights Cases, 109 U. S. 3, dissent. 426 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. When evils are admitted, great discretion should be allowed the legislature in devising remedies. If it has been demonstrated by experience that a remedy is not sufficient to check the evil, then certainly the legislature can, under the police power, adopt a new and more drastic remedy. Power to adopt new remedies when old remedies fail is illustrated by the legislation as to lotteries, carrying concealed weapons and regulating the sale of intoxicating liquors. Ford v. State 85 Md., 465; Noble State Bank v. Haskell, 219 U. S. 104; Collisterv. Hayman, supra. The Legislature was under a duty to pass the present statute and fix a rate. Its inaction would have been a confession that it was powerless to secure to its citizens the blessings of freedom and to promote the general welfare. People ex rel. Durham v. La Fetra 230 N. Y. 429; People v. Schweinler Press, 214 N. Y. 395; State v. Harper, 148 Wis. 57; Lawton v. Steele, 152 U. S. 133. Mr. Robert P. Beyer, Deputy Attorney General of New York, with whom Mr. Albert Ottinger, Attorney General, was on the brief, for appellee Murphy. Mr. Justice Sutherland delivered the opinion of the Court. Appellant is engaged in the business of reselling tickets of admission to theatres and other places of entertainment in the City of New York. It employs a large number of salesmen, messenger boys and others. Its expenses are very large, and its sales average approximately 300,000 tickets per annum. These tickets are obtained either from the box office of the theatre or from other brokers and distributors. It is duly licensed under § 168, c. 590, New York Laws, 1922, and has given a bond under §169 of that chapter in the penal sum of $1,000 with sureties, conditioned, among other things, that it will not be guilty of any fraud or extortion. See Weller v. New York, 268 U. S. 319, 322. TYSON & BROTHER v. BANTON. 427 418 Opinion of the Court. Section 167 of chapter 590 declares that the price of or charge for admission to theatres, etc., is a matter affected with a public interest and subject to state supervision in order to safeguard the public against fraud, extortion, exorbitant rates and similar abuses. Section 172 forbids the resale of any ticket or other evidence of the right of entry to any theatre, etc., “ at a price in excess of fifty cents in advance of the price printed on the face of such ticket or other evidence of the right of entry,” such printing being required by that section. Both sections are reproduced in the margin.* This suit was brought to enjoin respondents from proceeding either at law or in equity to enforce the last named section, and from revoking plaintiff’s license, enforcing by suit or otherwise the penalty of the bond or prosecuting criminally appellant or any of its officers or agents for reselling or attempting to resell any ticket or other evidence of the right of entry to any theatre, etc., at a price in excess of fifty cents in advance of the printed * * * § * § 167. Matters of Public Interest. It is hereby determined and declared that the price of or charge for admission to theatres, places of amusement or entertainment, or other places where public exhibitions, games, contests or performances are held is a matter affected with a public interest and subject to the supervision of the state for the purpose of safeguarding the public against fraud, extortion, exorbi- tant rates and similar abuses. § 172. Restriction as to Price. No licensee shall resell any such ticket or other evidence of the right of entry to any theatre, place of amusement or entertainment, or other place where public exhibitions, games, contests or performances are given at a price in excess of fifty cents in advance of the price printed on the face of such ticket or other evidence of the right of entry. Every person, firm, or corporation who owns, operates or controls a theatre, place of amusement or entertainment, or other place where public exhibitions, games, contests or performances are held shall, if a price be charged for admission thereto, print on the face of each such ticket or other evidence of the right of entry the price charged therefor by such person, firm or corporation. 428 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. price. The bill alleges threats on the part of appellees to enforce the statute against appellant, to forfeit its license, enforce the penalty of its bond and institute criminal prosecutions against appellant, its officers and agents. It is further alleged that the terms of the statute are so drastic and the penalties for its violation so great [imprisonment for one year or a fine of $250 or both] that appellant may not resell any ticket or evidence of the right of entry at a price beyond that fixed by the statute even for the purpose of testing the validity of the law; and that appellant will be compelled to submit to the statute whether valid or invalid unless its suit be entertained, and thereby will be deprived of its property and liberty without due process of law and denied the equal protection of the law, in contravention of the Fourteenth Amendment to the federal Constitution. Following the rule frequently announced by this court, that “ equitable jurisdiction exists to restrain criminal prosecutions under unconstitutional enactments, when the prevention of such prosecutions is essential to the safeguarding of rights of property,” we sustain the jurisdiction of the district court. Packard v. Banton, 264 U. S. 140, 143, and cases there cited. The case was heard below by a statutory court of three judges and a decree rendered denying appellant’s prayer for a temporary injunction and holding the statute assailed to be valid and constitutional. The provision of the statute in question also has been upheld in a judgment of the New York state court of appeals, People v. Weller, 237 N. Y. 316, brought here on writ of error. That case, however, directly involved only § 168, requiring a license, and although it was insisted that § 172 restricting prices should also be considered, upon the ground that the two provisions were inseparable, this court held otherwise, sustained the validity of the license section and declined to TYSON & BROTHER v. BANTON. 429 418 Opinion of the Court. pass upon the other one. Weller v. New York, 268 U. S. 319, 325. Strictly, the question for determination relates only to the maximum price for which an entrance ticket to a theatre, etc., may be resold. But the answer necessarily must be to a question of greater breadth. The statutory declaration (§ 167) is that the price of or charge for admission to a theatre, place of amusement or entertainment or other place where public exhibitions, games, contests or performances are held, is a matter affected with a public interest. To affirm the validity of § 172 is to affirm this declaration completely, since appellant’s business embraces the resale of entrance tickets to all forms of entertainment therein enumerated. And since the ticket broker is a mere appendage of the theatre, etc., and the price of or charge for admission is the essential element in the statutory declaration, it results that the real inquiry is whether every public exhibition, game, contest or performance, to which an admission charge is made, is clothed with a public interest, so as to authorize a law-making body to fix the maximum amount of the charge, which its patrons may be required to pay. In the endeavor to reach a correct conclusion in respect of this inquiry, it will be helpful, by way of preface, to state certain pertinent considerations. The first of these is that the right of the owner to fixj a price at which his property shall be sold or used is an inherent attribute of the property itself, Case of the State Freight Tax, 15 Wall. 232, 278, and, as such, within the protection of the due process of law clauses of the Fifth and Fourteenth Amendments. See City of Carrollton v. Bazzette, 159 Ill. 284, 294. The power to regulate property, services or business can be invoked only under special circumstances; and it does not follow that because the power may exist to regulate in some particulars it exists to regulate in others or in all. 430 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. The authority to regulate the conduct of a business or to require a license, comes from a branch of the police power which may be quite distinct from the power to fix prices. The latter, ordinarily, does not exist in respect of merely private property or business, Chesapeake & Potomac Tel. Co. v. Manning, 186 U. S. 238, 246, but exists only where the business or the property involved has become “ affected with a public interest.”. This phrase, first used by Lord Hale 200 years ago, Munn v. Illinois, 94 U. S. 113, 126, it is true, furnishes at best an indefinite standard, and attempts to define it have resulted, generally, in producing little more than paraphrases, which themselves require elucidation. Certain properties and kinds of business it obviously includes, like common carriers, telegraph and telephone companies, ferries, wharfage, etc. Beyond these, its application not only has not been uniform, but many of the decisions disclose the members of the same court in radical disagreement. Its full meaning, like that of many other generalizations, cannot be exactly defined;— it can only be approximated. A business is not affected with a public interest merely because it is large or because the public are warranted in having a feeling of concern in respect of its maintenance. Nor is the interest meant such as arises from the mere fact that the public derives benefit, accommodation, ease or enjoyment from the existence or operation of the business; and while the word has not always been limited narrowly as strictly denoting “ a right,” that synonym more nearly than any other expresses. the sense in which it is to be understood. The characterizations in some decisions of businesses as “quasi public,” People v. King, 110 N. Y. 418, 428, “not 1 strictly ’ private,” Aaron v. Ward, 203 N. Y. 351, 356, and the like, while well enough for the purpose for which they were employed, namely, as a basis for upholding police regulations in respect of the conduct of particular 431 TYSON & BROTHER v. BANTON. Opinion of the Court. 418 businesses, cannot be accepted as equivalents for the description “ affected with a public interest,” as that phrase is used in the decisions of this court as the basis for legislative regulation of prices. The latter power is not only a more definite and serious invasion of the rights of property and the freedom of contract, but its exercise cannot always be justified by circumstances which have been held to justify legislative regulation of the manner in which a business shall be carried on. And, finally, the mere declaration by the legislature that a particular kind of property or business is affected with a public interest is not conclusive upon the question of the validity of the regulation. The matter is one which is always open to judicial inquiry. Wolff Co. v. Industrial Court, 262 U. S. 522, 536. In the Wolff case, this court held invalid the wage fixing provision of the compulsory arbitration statute of Kansas as applied to a meat packing establishment. The power of a legislature, under any circumstances, to fix prices or wages in the business of preparing and selling food was seriously doubted, but the court concluded that, even if the legislature could do so in a public emergency, no such emergency appeared, and, in any event, the power would not extend to giving compulsory continuity to the business by compulsory arbitration. In the course of the opinion (p. 535), it was said that business characterized as clothed with a public interest might be divided into three classes: “(1) Those which are carried on under the authority of a public grant of privileges which either expressly or impliedly imposes the affirmative duty of rendering a public service demanded by any member of the public. Such are the railroads, other common carriers and public utilities. “(2) Certain occupations, regarded as exceptional, the public interest attaching to which, recognized from earliest 432 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. times, has survived the period of arbitrary laws by Parliament or Colonial legislatures for regulating all trades and callings. Such are those of the keepers of inns, cabs and grist mills. State v. Edwards, 86 Me. 102; Terminal Taxicab Co. v. District of Columbia, 241 U. S. 252, 254. “(3) Businesses which though not public at their inception may be fairly said to have risen to be such and have become subject in consequence to some government regulation. They have come to hold such a peculiar relation to the public that this is superimposed upon them. In the language of the cases, the owner by devoting his business to the public use, in effect grants the public an interest in that use and subjects himself to public regulation to the extent of that interest although the property continues to belong to its private owner and to be entitled to protection accordingly.” Citing the Munn case and others. If the statute now under review can be sustained as valid, it must be in virtue of the doctrine laid down in the third paragraph; and it will aid in the effort to reach a correct conclusion in that respect if we shall first consider the principal decisions of this court where that doctrine has been applied. The leading, as well as the earliest, definite decision dealing with a business falling within that class is Munn v. Illinois, supra, which sustained the validity of an Illinois statute fixing the maximum charge to be made for the use of elevators and warehouses for the elevation and storage of grain. As ground for that decision the opinion recites, among other things, that grain came from the west and northwest by water and rail to Chicago where the greater part of it was shipped by vessel to the seaboard and some of it by railway to eastern ports; that Chicago had been made the greatest grain market in the world; and that the business had created a demand for means by which the immense quantity of grain could be handled or stored and these had been found in grain elevators. In this way the largest 433 TYSON & BROTHER v. BANTON. Opinion of the Court. 418 traffic between the country north and west of Chicago and that lying on the Atlantic coast north of Washington, was in grain passing through the elevators at Chicago. The trade in grain between seven or eight of the great states of the west and four or five of those lying on the sea-shore, formed the largest part of the interstate commerce in these states. The elevators in Chicago were immense structures, holding from 300,000 to 1,000,000 bushels at one time. Under these circumstances, it was said that the elevators stood in the very “ gateway of commerce ” and took toll from all who passed; that their business certainly tended to a common charge and had become a thing of public interest and use; that every bushel of grain for its passage paid a toll, which was a common charge; and, finally, that if any business could be clothed “ with a public interest, and cease to be juris privati only,” this had been made so by the facts. There is some general language in the opinion which, superficially, might seem broad enough to cover cases like the present one. It was said, for example (p. 126): “ Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large.” Literally, that would include all the large industries and some small ones; but in accordance with the well settled rule the words must be limited to the case under consideration. Cohens v. Virginia, 6 Wheat. 264, 399; Plumley v. Massachusetts, 155 U. S. 461, 474. Indeed, the language quoted is qualified immediately by a statement of the general rule, that— “ When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created.” The significant requirement is that the property shall be devoted to a use in which the public has an interest, 42847°—27------28 434 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. which simply means, as in terms it is expressed at page 130, that it shall be devoted to “ a public use.” Stated in another form, a business or property, in order to be affected with a public interest, must be such or be so employed as to justify the conclusion that it has been devoted to a public use and its use thereby, in effect, granted to the public. See Louisville &c. R. R. Co. v. West Coast Co., 198 U. S. 483, 500. The subsequent elevator and warehouse cases, Budd v. New York, 143 U. S. 517, and Brass v. Stoeser, 153 U. S. 391, while presenting conditions of less gravity, rest upon the authority of the Munn case. The differences among the three cases are in matters of degree. In Cotting v. Kansas City Stock Yards Co., &c., 183 U. S. 79, 85, Mr. Justice Brewer, speaking on that point for himself and two other members of the court, said that, tested by the Munn case, the stock yards of the company, situated in one of the gateways of commerce and so located that they furnished important facilities to all seeking transportation of cattle, were subject to governmental price regulation. But the majority of the court, without referring to this view, assented to a reversal upon a ground specifically stated (pp. 114-115); and the authority of the case must be limited by the terms of that statement. German Alliance Ins. Co. v. Kansas, 233 U. S. 389, carries the doctrine further and marks the extreme limit to which this court thus far has gone in sustaining price fixing legislation. There the court said that a business might be affected with a public interest so as to permit price regulation although no public trust was impressed upon the property and although the public might not have a legal right to demand and receive service; and it was held that fire insurance was such a business. Mr. Justice McKenna, speaking for the court, pointed out that in an insurance business each risk was not individual; 435 TYSON & BROTHER v. BANTON. Opinion of the Court. 418 that “ there can be standards and classification of risks, determined by the law of averages,” and, while there might be variations, that rates, are fixed and accommodated to such standards. Discussing the question whether the business was affected with a public interest so as to justify regulation of rates, it was then said (p. 406): “And we mean a broad and definite public interest. In some degree the public interest is concerned in every transaction between men, the sum of the transactions constituting the activities of life. But there is something more special than this, something of more definite consequence, which makes the public interest that justifies regulatory legislation.” The business of common carriers, transmission of intelligence, furnishing water and light, gas and electricity, were cited as examples, and the Munn, Budd and Brass cases reviewed. The fact that the contract of fire insurance was personal in character, it was said, did not preclude regulation, and in that „connection it was pointed out that insurance companies were so regulated by state legislation as to show that the law-making bodies of the country, without exception, regarded the business of insurance as so far affecting the public welfare as to invoke and require governmental regulation. And it was then said (p. 412-413): “Accidental fires are inevitable and the extent of loss very great. The effect of insurance—indeed, it has been said to be its fundamental object—is to distribute the loss over as wide an area as possible. In other words, the loss is spread over the country, the disaster to an individual is shared by many, the disaster to a community shared by other communities; great catastrophes are thereby lessened, and, it may be, repaired. In assimilation of insurance to a tax, the companies have been said to be the mere machinery by which the inevitable losses by fire are distributed so as to fall as lightly as 436 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. possible on the public at large, the body of the insured, not the companies, paying the tax.” And again (p. 413) : “ Contracts of insurance, therefore, have greater public consequence than contracts between individuals to do or not to do a particular thing whose effect stops with the individuals.” And again (p. 414) : “We have shown that the business of insurance has very definite characteristics, with a reach of influence and consequence beyond and different from that of the ordinary businesses of the commercial world, to pursue which a greater liberty may be asserted. The transactions of the latter are independent and individual, terminating in their effect with the instances. The contracts of insurance may be said to be interdependent. They cannot be regarded singly, or isolatedly, and the effect of their relation is to create a fund of assurance and credit, the companies becoming the depositories of the money of the insured, possessing great power thereby and charged with great responsibility.” Answering the objection that the reasoning of the opinion would subject every act of human endeavor and the price of every article of human use to regulation, it was said (p. 415) : “And both by the expression of the principle and the citation of the examples we have tried to confine our decision to the regulation of the business of insurance, it having become ‘ clothed with a public interest,’ and therefore subject ‘ to be controlled by the public for the common good.’ ” This observation fairly may be regarded as a warning at least to be cautious about invoking the decision as a precedent for the determination of cases involving other kinds of business. And this view is borne out by a general consideration of the case. The decision proceeds 437 TYSON & BROTHER v. BANTON. Opinion of the Court. 418 upon the ground that the insurance business is to be distinguished from ordinary private business; that an insurance company, in effect, is an instrumentality which gathers funds upon the basis of equality of risk from a great number of persons—sufficiently large in number to cause the element of chance to step out and the law of averages to step in as the controlling factor,—and holds the numerous amounts so collected as a general fund to be paid out to those who shall suffer losses. Insurance companies do not sell commodities;—they do not sell anything. They are engaged in making contracts with and collecting premiums from a large number of persons, the effect of their activities being to constitute a guaranty against individual loss and to put a large number of individual contributions into a common fund for the purpose of fulfilling the guaranty. In this fund all are interested, not in some vague or sentimental way, but in a very real, practical and definite sense. It was from the foregoing and other considerations peculiar to the insurance business that the court drew its conclusion that the business was clothed with a public interest. Wilson v. New, 243 U. S. 332 (involving the Adamson law), Block v. Hirsh, 256 U. S. 135, and Marcus Brown Co. v. Feldman, 256 U. S. 170 (the rental cases), are relied upon to sustain the statute now under review. But in these cases the statutes involved were of a temporary character, to tide over grave emergencies, Adkins v. Children’s Hospital, 261 U. S. 525, 551-552, the emergency in the New case being of nation-wide extent; and it is clear that, in the opinion of this court, at least the business of renting houses and apartments is not so affected with a public interest as to justify legislative fixing of prices unless some great emergency exists. Block v. Hirsh,'supra, p. 157; Chastleton Corp. v. Sinclair, 264 U. S. 543, 548. And even with the emergency, the stat- 438 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. utes “ went to the verge of the law.” Penna. Coal Co. v. Mahon, 260 U. S. 393, 416. Nor is the sale of ordinary commodities of trade affected with a public interest so as to justify legislative price fixing. This court said in Wolff Co. v. Industrial Court, supra, p. 537: “ It has never been supposed, since the adoption of the Constitution, that the business of the butcher, or the baker, the tailor, the wood chopper, the mining operator or the miner was clothed with such a public interest' that the price of his product or his wages could be fixed by State regulation. It is true that in the days of the early common law an omnipotent Parliament did regulate prices and wages as it chose, and occasionally a Colonial legislature sought to exercise the same power; but nowadays one does not devote one’s property or business to the public use or clothe it with a public interest merely because one makes commodities for, and sells to, the public in the common callings of which those above mentioned are instances.” See also, United States v. Bernstein, 267 Fed. 295, 296. From the foregoing review it will be seen that each of the decisions of this court upholding governmental price regulation, aside from cases involving legislation to tide over temporary emergencies, has turned upon the existence of conditions, peculiar to the business under consideration, which bore such a substantial and definite relation to the public interest as to justify an indulgence of the legal fiction of a grant by the owner to the public of an interest in the use. Lord Hale’s statement that when private property is “ affected with a public interest, it ceases to be juris privati only,” is accepted by this court as the guiding principle in cases of this character. That this phrase was not intended by its author to include private undertakings, like those enumerated in the statute now under consid- 439 TYSON & BROTHER v. BANTON. Opinion of the Court. 418 eration, is apparent when we consider the connection in which it was used. It occurs in Lord Hale’s manuscript, De Portibus Maris, 1 Harg. Law Tracts, 78, in which the three-fold rights of the proprietor, the public and the king in ports are considered. It first is pointed out that no man can erect a public port without the king’s license, though if he set up a port for his private advantage he may take what rates he and his customers can agree upon. But, it is said, if the king or the subject have a public wharf, to which all persons must come, because it is the wharf only licensed by the king, or there is no other wharf in that port, arbitrary and excessive charges cannot be made. For it is then affected with a public interest and ceases to be juris privati only; “ as if a man set out a street in new building on his own land, it is now no longer bare private interest, but it is affected with a public interest.” It is clear that, as there announced, the rule is confined to conveniences made public because the privilege of maintaining them has been granted by government or because there has arisen what may be termed a constructive grant of the use to the public. That this is what Lord Hale had in mind is borne out, and the question now under consideration is illuminated, by the illustration, which he evidently conceived to be pertinent, of a street opened to the public, in which case the assumed grant and resulting public right of use is very apparent. A theatre or other place of entertainment does not meet this conception of Lord Hale’s aphorism or fall within the reasons of the decisions of this court based upon it. A theatre is a private enterprise, which, in its relation to the public, differs obviously and widely, both in character and degree, from a grain elevator, standing at the gateway of commerce and exacting toll, amounting to a common charge, for every bushel of grain which passes on its way among the states; or stock yards, standing in 440 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. like relation to the commerce in live stock; or an insurance company, engaged, as a sort of common agency, in collecting and holding a guaranty fund in which definite and substantial rights are enjoyed by a considerable portion of the public sustaining interdependent relations in respect of their interests in the fund. Sales of theatre tickets bear no relation to the commerce of the country; and they are not interdependent transactions, but stand, both in form and effect, separate and apart from each other, “ terminating in their effect with the instances.” And, certainly, a place of entertainment is in no legal sense a public utility; and, quite as certainly, its activities are not such that their enjoyment can be regarded under any conditions from the point of view of an emergency. The interest of the public in theatres and other places of entertainment may be more nearly, and with better reason, assimilated to the like interest in provision stores and markets and in the rental of houses and apartments for residence purposes; although in importance it falls below such an interest in the proportion that food and shelter are of more moment than amusement or instruction. As we have shown, there is no legislative power to fix the prices of provisions or clothing or the rental charges for houses or apartments, in the absence of some controlling emergency; and we are unable to perceive any dissimilarities of such quality or degree as to justify a different rule in respect of amusements and entertainments. A theatre ticket may be in the form of a revocable license or of a contract. If the former, it may be revoked at the will of the proprietor; if the latter, it may be made non-transferable or otherwise conditioned. A theatre, of course, may be regulated so as to preserve the public peace, insure good order, protect public morals, and the like. A license may be required, but such a license is 441 TYSON & BROTHER v. BANTON. Opinion of the Court. 418 not a franchise which puts the proprietor under the duty of furnishing entertainment to the public or, if furnished, of admitting everyone who applies. See Collist&r v. Hayman, 183 N. Y. 250, 253. How far the power of the legislature may be exerted to prevent discriminating selection by the proprietor of his patrons upon the basis of race, color, creed, etc., People v. King, 110 N. Y. 418, need not be determined; for in any event such power and the other powers of regulation just enumerated fall far short of the one here invoked to fix prices. The contention that, historically considered, places of entertainment may be regarded as so affected with a public interest as to justify legislative regulation of their charges, does not seem to us impressive. It may be true, as asserted, that, among the Greeks, amusement and instruction of the «people through the drama was one of the duties of government. But certainly no such duty devolves upon any American government. The most that can be said is that the theatre and other places of entertainment, generally have been regarded as of high value to the people, to be encouraged, but, at the same time, regulated, within limits already stated. While theatres have existed for centuries and have been regulated in a variety of ways, and while price fixing by legislation is an old story, it does not appear that any attempt hitherto has been made to fix their charges by law. This is a fact of some significance in connection with the historical argument, and, when set in contrast with the practice in respect of inn-keepers and others, whose charges have been subjected to legislative regulation from a very early period, it persuasively suggests that by general legislative acquiescence theatres, historically, have been regarded as falling outside the classes of things which should be thus controlled. It will not do to say that this failure of legislative bodies to act in the matter has been due to the absence of complaints on the part of the public, 442 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. for it hardly is probable that a privilege as ancient and as amply exercised as that of complaining about prices in general, has not been freely indulged in the matter of charges for entertainment. Indeed, it is judicially recorded that, as long ago as 1809, there was a riot in the Royal Theatre, London, for the purpose of compelling a reduction in prices of admission. In deciding a case growing out of the disturbance, Clifford v. Brandon, 2 Campb. 358, 368, the court summarily disposed of the claim that people had a right to express their disapprobation of high prices in such a tumultuous manner, by saying that “ the proprietors of a theatre have a right to manage their property in their own way, and to fix what prices of admission they think most for their own advantage,” and that any person who did not approve could stay away. If it be within the legitimate authority of government to fix maximum charges for admission to theatres, lectures (where perhaps the lecturer alone is concerned), baseball, football and other games of all degrees of interest, circuses, shows (big and little), and every possible form of amusement, including the lowly merry-go-round with its adjunct, the hurdy-gurdy, Commonwealth v. Bow, 177 Mass. 347, it is hard to see where the limit of power in respect of price fixing is to be drawn. It is urged that the statutory provision under review may be upheld as an appropriate method of preventing fraud, extortion, collusive arrangements between the management and those engaged in reselling tickets, and the like. That such evils exist in some degree in connection with the theatrical business and its ally, the ticket broker, is undoubtedly true, as it unfortunately is true in respect of the same or similar evils in other kinds of business. But evils are to be suppressed or prevented by legislation which comports with the Constitution, and not by such as strikes down those essential rights of private property protected by that instrument against undue governmental 443 TYSON & BROTHER v. BANTON. Opinion of the Court. 415 interference. One vice of the contention is that the statute itself ignores the righteous distinction between guilt and innocence, since it applies wholly irrespective of the existence of fraud, collusion or extortion (if that word can have any legal significance as applied to transactions of the kind here dealt with—Commonwealth v. O’Brien & others, 12 Cush. 84, 90), and fixes the resale price as well where the evils are absent as where they are present. It is not permissible to enact a law which, in effect, spreads an all-inclusive net for the feet of everybody upon the chance that, while the innocent will surely be entangled in its meshes, some wrong-doers also may be caught. What this court said in Adams v. Tanner, 244 U. S. 590, 594, in the course of its opinion holding invalid a statute of Washington penalizing the collection of fees for securing employment, is apposite: “ Because abuses may, and probably do, grow up in connection with this business, is adequate reason for hedging it about by proper regulations. But this is not enough to justify destruction of one’s right to follow a distinctly useful calling in an upright way. Certainly there is no profession, possibly no business, which does not offer peculiar opportunities for reprehensible practices; and as to every one of them, no doubt, some can be found quite ready earnestly to maintain that its suppression would be in the public interest. Skillfully directed agitation might also bring about apparent condemnation of any one of them by the public. Happily for all, the fundamental guaranties of the Constitution cannot be freely submerged if and whenever some ostensible justification is advanced and the police power invoked.” The evil of collusive alliances between the proprietors of theatres and ticket brokers Pr scalpers seems to have been effectively dealt with in Illinois by an ordinance 444 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. which required (1) that the price of every theatre ticket shall be printed on its face and (2) that no proprietor, employee, etc., of a theatre shall receive or enter into any arrangement or agreement to receive more. This ordinance was sustained as valid by the state supreme court in The People v. Thompson, 283 Ill. 87, 97; and that decision is cited here in support of the present statute. But the important distinction between that case and this is that the ordinance did not forbid the resale of the ticket by a purchaser of it for any price he was able to secure, or forbid the fixing of any price by the proprietor which he thought fit, provided that price was printed on the face of the ticket. That court had held in the earlier case of The People N. Steele, 231 Ill. 340, 344, that the business of conducting a theatre was a private one; that the legislature had the power to regulate it as a place of public amusement and might require a license; that the legislature had the same power to regulate such a business as it had to regulate any other private business, and no more. And an act which prohibited the resale of tickets for more than the price printed thereon was held to be invalid as an arbitrary and unreasonable interference with the rights of the ticket broker. It was distinctly held that the intending purchaser of the ticket had no right to buy at any price except that fixed by the holder; that the manager might fix the price arbitrarily, and raise or lower it at his will; that having advertised a performance, he was not bound to give it, and having advertised a price, he was not bound to sell at that price; and that the business of dealing in theatre tickets and the right to contract with regard to them were entitled to protection. To the same effect, see Ex parte Quarg, 149 Oal. 79. This doctrine was reaffirmed in the Thompson case, but held to have no application to the ordinance there considered and not to be inconsistent with the holding (p. 97) 445 TYSON & BROTHER v. BANTON. Holmes, J., dissenting. 418 that the manager of a place of public entertainment might “ be compelled to treat patrons impartially by putting an end to an existing system by which theatre owners and ticket scalpers are confederated together to compel a portion of the public to pay a different price from others.” It should not be difficult similarly to define and penalize in specific terms other practices of a fraudulent character, the existence or apprehension of which is suggested in brief and argument. But the difficulty or even the impossibility of thus dealing with the evils, if that should be conceded, constitutes no warrant for suppressing them by methods precluded by the Constitution. Such subversions are not only illegitimate but are fraught with the danger that, having begun on the ground of necessity, they will continue on the score of expediency, and, finally, as a mere matter of course. Constitutional principles, applied as they are written, it must be assumed, operate justly and wisely as a general thing, and they may not be remolded by lawmakers or judges to save exceptional cases of inconvenience, hardship or injustice. We are of opinion that the statute assailed contravenes the Fourteenth Amendment and that the decree must be Reversed. Mr. Justice Holmes, dissenting. We fear to grant power and are unwilling to recognize it when it exists. The States very generally have stripped jury trials of one of their most important characteristics by forbidding the judges to advise the jury upon the facts (Graham v. United States, 231 U. S. 474, 480), and when legislatures are held to be authorized to do anything considerably affecting public welfare it is covered by apologetic phrases like the police power, or the statement that the business concerned has been dedicated to a public use. The former expression is convenient, to be sure, to conciliate the mind to something that needs explanation: the fact that the constitutional requirement of compensation 446 OCTOBER TERM, 1926. Holmes, J., dissenting. 273 U.S. when property is taken cannot be pressed to its grammatical extreme; that property rights may be taken for public purposes without pay if you do not take too much; that some play must be allowed to the joints if the machine is to work. But police power often is used in a wide sense to cover and, as I said, to apologize for the general power of the legislature to make a part of the community uncomfortable by a change. I do not believe in such apologies. I think the proper course is to recognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain. Coming down to the case before us I think, as I intimated in Adkins v. Children’s Hospital, 261 U. S. 525, 569, that the notion that a business is clothed with a public interest and has been devoted to the public use is little more than a fiction intended to beautify what is disagreeable to the sufferers. The truth seems to me to be that, subject to compensation when compensation is due, the legislature may forbid or restrict any business when it has a sufficient force of public opinion behind it. Lotteries were thought useful adjuncts of the State a century or so ago; now they are believed to be immoral and they have been stopped. Wine has been thought good for man from the time of the Apostles until recent years. But when public opinion changed it did not need the Eighteenth Amendment, notwithstanding the Fourteenth, to enable a State to say that the business should end. Mugler v. Kansas, 123 U. S. 623. What has happened to lotteries and wine might happen to theatres in some moral storm of the future, not because theatres were devoted to a public use, but because people had come to think that way. 447 TYSON & BROTHER v. BANTON. Stone, J., dissenting. 418 But if we are to yield to fashionable conventions, it seems to me that theatres are as much devoted to public use as anything well can be. We have not that respect for art that is one of the glories of France. But to many people the superfluous is the necessary, and it seems to me that Government does not go beyond its sphere in attempting to make life livable for them. I am far from saying that I think this particular law a wise and rational provision. That is not my affair. But if the people of the State of New York speaking by their authorized voice say that they want it, I see nothing in the Constitution of the United States to prevent their having their will1. Mr. Justice Brandeis concurs in this opinion. Mr. Justice Stone, dissenting. I can agree with the majority that “ constitutional principles, applied as they are written, it must be assumed, operate justly and wisely as a general thing, and they may not be remolded by lawmakers or judges to save exceptional cases of inconvenience, hardship, or injustice.” But I find nothing written in the Constitution, and nothing in the case or common law development of the Fourteenth Amendment, which would lead me to conclude that the type of regulation attempted by the State of New York is prohibited. The scope of our inquiry has been repeatedly defined by the decisions of this Court. As was said in Munn v. Illinois, 94 U. S. 113, 132, by Chief Justice Waite, “ For us the question is one of power, not of expediency. If no state of circumstances could exist to justify such a statute, then we may declare this one void, because in excess of the legislative power of the state. But if it could, we must presume it did. Of the propriety of legislative interference within the scope of legislative power, the legisla- 448 OCTOBER TERM, 1926. Stone, J., dissenting. 273 U.S. ture is the exclusive judge.” The attitude in which we should approach new problems in the field of price regulation was indicated in German Alliance Ins. Co. v. Kansas, 233 U. S. 389, 409: “Against that conservatism of the mind, which puts to question every new act of regulating legislation and regards the legislation invalid or dangerous until it has become familiar, government— state and National—has pressed on in the general welfare; and our reports are full of cases where in instance after instance the exercise of the regulation was resisted and yet sustained against attacks asserted to be justified by the Constitution of the United States. The dread of the moment having passed, no one is now heard to say that rights were restrained or constitutional guarantees impaired.” Again, in sustaining the constitutionality of a zoning ordinance under the Fourteenth Amendment, this Court has recently said, “ Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive.” Village of Euclid v. Ambler Realty Co., 272 U. S. 365. The question with which we are here concerned is much narrower than the one which has been principally discussed by the Court. It is not whether there is constitutional power to fix the price which theatre owners and producers may charge for admission. Although the statute in question declares that the price of tickets of admission to places of amusement is affected with a public interest, it does not purport to fix prices of admission. The producer or theatre proprietor is free to charge any price he chooses. The statute requires only that the sale price, whatever it is, be printed on the face of the ticket, and prohibits the licensed ticket broker, an intermediary 449 TYSON & BROTHER v. BANTON. Stone, J., dissenting. 418 in the marketing process, from reselling the ticket at an advance of more than fifty cents above the printed price.1 Nor is it contended that this limit on the profit is unreasonable. It appears affirmatively that the business is now being carried on profitably by ticket brokers under this very restriction. But if it were not, there could be judicial relief without affecting the constitutionality of the measure. In these respects, the case resembles Munn v. Illinois, supra, where the attempt was not to fix the price of grain but to fix the price of the service rendered by the proprietors of grain elevators in connection with the transportation and distribution of grain, the cost of which entered into the price ultimately paid by the consumer. The statute there, as the statute here, was designed in part to protect a large class of consumers from 1 Turning to the broader question, the public importance of theatres has been manifested in regulatory legislation in this country from the earliest times. Beale, Innkeepers, § 325n; Cecil v. Green, 161 Ill. 265, 268. In New York, physical construction of theatres with respect to fire escapes, exits and seating is regulated, Village Law, § 90, par. 25; licenses to produce shows are required, Town Law, § 217; Sunday entertainments of certain kinds, Penal Code, § 2145, cf. People v. Hoym, 20 How. Prac. 76; Neuendorff v. Duryea, 6 Daly 276; discrimination because of race or color, Penal Code, § 514, People v. King, 110 N. Y. 418, or against persons wearing United States uniforms, Penal Code, § 517; appearance of children under fourteen upon the stage, People v. Ewer, 141 N. Y. 129; admission of children under sixteen, Penal Code, § 484; presentation of certain types of exhibitions, Penal Code, §§ 831, 833; or immoral shows and exhibitions, Penal Code, § 1140a; or plays in which a living character represents the Deity, Penal Code, § 2074; are all prohibited. Section 3657, Page, Ohio Gen. Code, empowering municipalities to require licensing of theatrical exhibitions and theatre ticket selling and § 12600-2 et seq. regulating physical construction, etc., are typical of present day statutes. This Court has upheld legislation regulating admissions to public entertainments, Western Turf Association v. Greenberg, 204 U. S. 359; and providing for censorship of motion pictures, Mutual Film Corp. v. Ohio Industrial Commission, 236 U. S. 230. 42847°—27---29 450 OCTOBER TERM, 1926. Stone, J., dissenting. 273 U. S. exorbitant prices made possible by the strategic position of a group of intermediaries in the distribution of a product from producer to consumer. There are about sixty first class theatres in the borough of Manhattan. Brokers annually sell about two million tickets, principally for admission to these theatres. Appellant sells three hundred thousand tickets annually. The practice of the brokers, as revealed by the record, is to subscribe, in advance of the production of the play and frequently before the cast is chosen, for tickets covering a period of eight weeks. The subscriptions must be paid two weeks in advance and about twenty-five per cent, of the tickets unsold may be returned. A virtual monopoly of the best seats, usually the first fifteen rows, is thus acquired and the brokers are enabled to demand extortionate prices of theatre goers. Producers and theatre proprietors are eager to make these advance sales which are an effective insurance against loss arising from unsuccessful productions. The brokers are in a position to prevent the direct purchase of tickets to« the desirable seats and to exact from the patrons of the successful productions a price sufficient to pay the loss of those which are unsuccessful, plus an excessive profit to the broker. It is undoubtedly true as a general proposition that one of the incidents of the ownership of property is the power to fix the price at which it may be disposed. It may be also assumed that as a general proposition, under the decisions of this Court, the power of state governments to regulate and control prices may be invoked only in special and not well defined circumstances. But when that power is invoked in the public interest and in consequence of the gross abuse of private right disclosed by this record, we should make searching and critical examination of those circumstances which in the past have, been deemed sufficient to justify the exercise of the power, before concluding that it may not be exercised here. 451 TYSON & BROTHER v. BANTON. Stone, J., dissenting. 418 The phrase “ business affected with a public interest ” seems to me to be too vague and illusory to carry us very far on the way to a solution. It tends in use to become only a convenient expression for describing those businesses, regulation of which has been permitted in the past. To say that only those businesses affected with a public interest may be regulated is but another way of stating that all those businesses which may be regulated are affected with a public interest. It is difficult to use the phrase free of its connotation of legal consequences, and hence when used as a basis of judicial decision, to avoid begging the question to be decided. The very fact that it has been applied to businesses unknown to Lord Hale, who gave sanction to its use, should caution us against the assumption that the category has now become complete or fixed and that there may not be brought into it new classes of business or transactions not hitherto included, in consequence of newly devised methods of extortionate price exaction. The constitutional theory that prices normally may not be regulated rests upon the assumption that the public interest and private right are both adequately protected when .there is “ free ” competition among buyers and sellers, and that in such a state of economic society, the interference with so important an incident of the ownership of private property as price fixing is not justified and hence is a taking of property without due process of law. Statutory regulation of price is commonly directed toward the prevention of exorbitant demands of buyers or sellers. An examination of the decisions of this Court in which price regulation has been upheld will disclose that the element common to all is the existence of a situation or a combination of circumstances materially restricting the regulative force of competition, so that buyers or sellers are placed at such a disadvantage in the 452 OCTOBER TERM, 1926. Stone, J., dissenting. 273 U. S. bargaining struggle that serious economic consequences result to a very large number of members of the community. Whether this situation arises from the monopoly conferred upon public service companies or from the circumstance that the strategical position of a group is such as to enable it to impose its will in matters of price upon those who sell, buy or consume, as in Munn n. Illinois, supra; or from the predetermination of prices in the councils of those who sell, promulgated in schedules of practically controlling constancy, as in German Alliance Ins. Co. v. Kansas, supra, or from a housing shortage growing out of a public emergency as in Block v. Hirsh, 256 U. S. 135; Marcus Brown Co. n. Feldman, 256 TJ. S. 170; Levy Leasing Co. v. Siegel, 258 U. S. 242; cf. Chas-tleton Corp. n. Sinclair, 264 U. S. 543, the result is the same. Self interest is not permitted to invoke constitutional protection at the expense of the public interest and reasonable regulation of price is upheld. That should be the result here. We need not attempt to lay down any universal rule to apply to new and unknown situations. It is enough for present purposes that this case falls within the scope of the earlier decisions and that the exercise of legislative power now considered was not arbitrary. The question as stated is not one of reasonable prices, but of the constitutional right in the circumstances of this case to exact exorbitant profits beyond reasonable prices. The economic consequence of this regulation upon individual ownership is no greater, nor is it essentially different from that inflicted by regulating rates to be charged by laundries, Oklahoma Operating Co. v. Love, 252 U. S. 331 (semble), by anti-monopoly laws, Sunday laws, usury statutes, Griffith v. Connecticut, 218 U. S. 563; Workmen’s Compensation Acts, New York Central R. R. v. White, 243 U. S. 188; the zoning ordinance upheld in Village of Euclid v. Ambler Realty Co., supra; or state statutes restraining the owner of land 453 TYSON & BROTHER v. BANTON. Stone, J., dissenting. 418 from leasing it to Japanese or Chinese aliens, upheld in Terrace n. Thompson, 263 U. S. 197; Webb v. O’Brien, 263 U. S. 313; or state prohibition laws upheld in Mugler v. Kansas, 123 U. S. 623; or legislation prohibiting option contracts for future sales of grain, Booth v. Illinois, 184 U. S. 425, or invalidating sales of stock on margin or for “futures,” Otis v. Parker, 187 U. S. 606; or statutes preventing the maintenance of pool parlors, Murphy v. California, 225 U. S. 623, or in numerous other cases in which the exercise of private rights has been restrained in the public interest. Noble State Bank v. Haskell, 219 IT. S. 104; Central Lumber Co. v. South Dakota, 226 U. S. 157; St. Louis Poster Advertising Co. v. St. Louis, 249 U. S. 269; Terminal Taxicab Co. v. Dist. of Columbia, 241 U. S. 252; Mutual Loan Co. v. Martell, 222 U. S. 225; Schmid-inger v. Chicago, 226 U. S. 578; cf. Green v. Frazier, 253 U. S. 233; National Ins. Co. v. Wanberg, 260 U. S. 71; Clark v. Nash 198 U. S. 361. Nor is the exercise of the power less reasonable because the interests protected are in some degree less essential to life than some others. Laws against monopoly which aim at the same evil and accomplish their end by interference with private rights quite as much as the present law are not regarded as arbitrary or unreasonable or unconstitutional because they are not limited in their application to dealings in the bare necessities of life. The problem sought to be dealt with has been the subject of earlier legislation in New York and has engaged the attention of the legislators of other states.2 That it is 2 An earlier crdinance of New York City, substantially similar to the present act, was construed in People v. Newman, 109 Mise. 622, overruled by People v. Weller, 237 N. Y. 316. Section 1534 Penal Code, makes it a misdemeanor for brokers to sell tickets on the street. Acts & Resolves of Mass. 1924, c. 497, controlling resale of tickets with maximum brokerage charges similar to the New York statute was approved in Opinion of Justices, 247 Mass. 497. Conn. Pub. Acts, 454 OCTOBER TERM, 1926. Sanford, J., dissenting. 273 U. S. one involving serious injustice to great numbers of individuals who are powerless to protect themselves cannot be questioned. Its solution turns upon considerations of economics about which there may be reasonable differences of opinion. Choice between these views takes us from the judicial to the legislative field. The judicial function ends when it is determined that there is basis for legislative action in a field not withheld from legislative power by the Constitution as interpreted by the decisions of this Court. Holding these views, I believe the judgment below should be affirmed. Mr. Justice Holmes and Mr. Justice Brandeis join in this dissent. Mr. Justice Sanford, dissenting. I regret that I cannot agree with the opinion of the Court in this case. My own view is more nearly that expressed by Mr. Justice Stone. Shortly stated, it is this: The case, I think, does not involve the question whether the business of theatre owners offering their separate entertainments is so affected with a public interest that the price which they themselves charge for tickets is subject to regulation by the legislature, but the very different question whether the business of ticket brokers who intervene between the theatre owners and the general public in the sale of theatre tickets is affected with a public interest, and may, under the circumstances disclosed in this case, be 1923, c. 48; New Jersey Laws 1923, c. 71; Cal. Penal Code, § 526, make it a misdemeanor to sell tickets in excess of the printed price. The California Act was declared unconstitutional in Ex parte Quarg, 149 Cal. 79. A similar statute in Illinois was held invalid, People v. Steele, 231 Ill. 340. A license ordinance of ticket peddlers was also declared invalid in California. Ex parte Dees, 46 Cal. App. 656. Those enactments are clearly more drastic than the New York statute. A Chicago ordinance prohibiting secret alliances and profit sharing between proprietors and scalpers was upheld. People v. Thompson, 283 Ill. 87. See also, Laws of Ill. 1923, p. 322. 455 TYSON & BROTHER v. BANTON.- Sanford, J., dissenting. 418 regulated by the legislature to the extent of preventing them from selling tickets at more than a reasonable advance upon the theatre prices. The facts stated by Mr. Justice Stone are substantially those found by the District Court. They show, as I think, clearly, that the ticket brokers, by virtue of arrangements which they make with the theatre owners, ordinarily acquire an absolute control of the most desirable seats in the theatres, by which they deprive the public of access to the theatres themselves for the purpose of buying such tickets at the regular prices, and are enabled to exact an extortionate advance in prices for the sale of such tickets to the public. In Munn v. Illinois, 94 U. S. 113, 132—although there was no holding that the sale of grain was in itself a business affected with a public interest which could be regulated by the legislature—it was held that the separate business of grain elevators, which “ stood in the very gateway of commerce ” in grain, “ taking toll ” from all who passed and tending to a common charge, had become, by the facts, clothed “ with a public interest ” and was subject to public regulation limiting the charges to a reasonable toll. So, I think, that here—without reference to the character of the business of the theatres themselves—the business of the ticket brokers, who stand in “ the very gateway ” between the theatres and the public, depriving the public of access to the theatres for the purchase of desirable seats at the regular prices, and exacting toll from patrons of the theatres desiring to purchase such seats, has become clothed with a public interest and is subject to regulation by the legislature limiting their charges to reasonable exactions and protecting the public from extortion and exorbitant rates. See People v. Weller, 207 App. Div. 337, 343, and 237 N. Y. 316, 331, in which the constitutionality of this statute was sustained by the New York courts; and Opinion of the Justices to the Senate, 247 Mass. 589, 598. And in Wolff Co. v. Industrial Court, 262 U. S. 522, 535, it was recognized that a business, 456 OCTOBER TERM, 1926. Syllabus. 273 U.S. although not public at its inception, might become clothed with a public interest justifying some government regulation, by coming “ to hold such a peculiar relation to the public that this is superimposed ” upon it. This, I think, is the case here. PAN AMERICAN PETROLEUM AND TRANSPORT COMPANY et al. v. UNITED STATES. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 305. Argued October 4, 5,1926.—Decided February 28,1927. 1. The evidence sustains findings that the making of the leases and contracts involved herein was dominated by the Secretary of the Interior, acting collusively with the representative of the two defendant oil companies; that the Secretary of the Navy took no active part in the negotiations; and that the leases and contracts were procured by corruption and fraud. P. 498. 2. The finding that the Secretary of the Navy signed the documents under misapprehension and without full knowledge of their contents is not sustained. An opposite finding is required by the record. P.498. 3. In a suit by the United States to annul contracts made through its officials with private corporations, the bona fides of which had been investigated by a committee of the Senate, statements made to the committee by the companies’ representative, who voluntarily appeared in defense of their interests, showing that he gave money to one of the officials who dominated the procurement and participated in the execution of the contracts, were admissible against the defendant corporations in proof of fraud. P. 498. So held where he who made the statements was the representative of both companies in procuring the contracts; was at that time president of one company and chairman of the board of directors of the othpr, having been its president also; controlled both companies through stock ownership; and was chairman of both boards of directors when he testified. PAN AMERICAN CO. v. UNITED STATES. 457 456 Syllabus. 4. A lease of the land of a naval reserve and related contracts, which were procured by private corporations as the result of collusion and corrupt conspiracy between their representative and a high government official who, under an executive order, dominated the administration of the reserve, may be avoided by the United States without regard to whether money paid the official by the representative constituted bribery as defined in the Criminal Code, or whether the official was financially interested in the transaction, or the United States suffered or was liable to suffer any financial loss or disadvantage as a result of the contracts and leases. It is enough if the official’s interest and dominating influence were corruptly obtained. It was shown that he so favored the lease and contracts that he could not loyally serve the interests of the United States. P. 500. 5. The Secretary of the Navy was not empowered by the Appropriation Act of June 4, 1920, to enter into contracts involving the leasing of all the unleased land of a naval petroleum reserve, and providing for the use of the crude oil, to be derived by the United States as royalties under such leases, for the acquisition of extensive storage facilities filled with fuel oil for the Navy. Pp. 501, 502, 508. 6. Under the proviso of the Naval Appropriation Act of June 4, 1920, the authority of the Secretary of the Navy to provide facilities in which to “ store ” naval reserve petroleum or its products did not extend beyond those that might be provided by use of the money made available by that act. P. 509. 7. While the general principles of equity are applicable in a suit by the United States to secure the cancelation of a conveyance or the rescission of a contract, they will not be applied to frustrate the purpose of its laws or to thwart public policy. P. 505. 8. In this suit brought by the United States to set aside illegal and fraudulent leases and contracts, which were made for the purpose of circumventing its laws and defeating its policy for the conservation of its naval petroleum reserves, the United States does not stand on the footing of an individual suing to annul a deed for fraud; its position is not that of a mere seller or lessor of land; the purpose is to vindicate the policy mentioned, the financial element being secondary; the defendants are wrong-doers, and have no equity to reimbursement for their expenditures as a condition to the granting of the relief sought by the Government. Pp. 503, 508. 458 OCTOBER TERM, 1926. Argument for Petitioners. 273 U. S. 9. In a suit by the United States to set aside for illegality and fraud leases made, in contravention of the policy of conserving naval petroleum reserves, and contracts made, as part of the same transaction, for erection of oil storage facilities for the Navy, not authorized by Congress, on land of the United States and for storing them with fuel oil, equity does not exact as a condition to the relief prayed that the defendants be compensated for the cost to them, or the value to the Government, of tne construction work performed or fuel oil furnished under the contracts, or for the amount they expended in drilling or operating oil wells or in other improvements on the leased premises; but their compensation, if any, must depend on Congress. Pp. 503, 508. 9 F. (2d) 761, affirmed. Certiorari (270 U. S. 640) to a decree of the Circuit Court of Appeals which affirmed in part and in part reversed a decree of the District Court (6 F. (2d) 43), in a suit by the United States to cancel two leases of land in a naval petroleum reserve, and two contracts for erecting storage facilities and supplying fuel oil for the Navy. The bill also prayed an account. The decree of the District Court canceled the leases and contracts for fraud and illegality, but, in the accounting, allowed credits to the two corporations for their expenditures under the leases and contracts, with interest. The Circuit Court of Appeals denied such credits, but in other respects affirmed the decree. Messrs. Frank J. Hogan and Frederic R. Kellogg, with whom Messrs. Joseph J. Cotter, Dean Emery, Harold Walker, Charles Wellborn, Olin Wellborn, Jr., Henry W. O’Melveny, and Walter K. Tuller were on the brief, for petitioners. PAN AMERICAN CO. v. UNITED STATES. 459 456 Argument for Petitioners. Under the Act of June 4, 1920, the Secretary of the Navy had authority to make the exchange contracts and the leases. This was a special enactment, complete in itself, relating to a subject which was not included in the general leasing act, and simply placed in the form of a proviso for legislative convenience, or for some other reason which does not affect its meaning and scope. Amer. Express Co. v. United States, 212 U. S. 522; I. C. C. v. Baird, 194 U. S. 25; C. & P. Tel. Co. v. Manning, 186 U. S. 238. The Act contains within itself a complete and comprehensive legislative scheme to repose exclusive control in the Secretary of the Navy as to all matters in connection with naval reserve affairs. The entire responsibility for the handling of these naval reserves was vested in him, and he was given full discretion. He could theoretically leave them as they were and take chances with regard both to the loss of oil from adjacent drilling and as to the unavailability of petroleum products for naval use when needed. This is covered by the use of the word “ conserve ” in its narrow sense. This was not what Congress had primarily in mind, because it could have been accomplished without any new legislation; and the law had been passed with the idea that active and not inactive methods should be thereafter pursued in order to protect both the oil reserves and the strategic interests of the United States Navy. The word “ conserve ” must be construed together with the other language used—and is immediately followed by the words “ develop, use and operate.” Hence, it is submitted to be clear that an active conservation and not merely a passive conservation was intended by Congress, and that Congress recognized that truest conservation of oil which was intended for the use of the Navy might well be accomplished by operating and developing the oil fields— using them—getting the oil to the surface either by lease, development, contract—or otherwise taking such steps 460 OCTOBER TERM, 1926. Argument for Petitioners. 273 U. S. that this oil should be transmuted into something which the Navy could actually consume, and so locating it that when necessary it would be available for naval service. The word “ develop ” can have but one meaning as applied to oil territory, and that is to cause oil to be produced from that territory. The Secretary could do this directly by hiring drillers and organizing a field force, if he saw fit, which would be an “ operation ” of the property. Or he could develop the same property indirectly or by contract—that is to say, by hiring the services of skilled oil men to do the necessary work and produce all oil possible, for the account and risk of the United States. Or he could “ lease ” all or any part of this property. To emphasize the extent of his discretion as to how these lands should be handled, the words “ or otherwise ” are added after the specific words hereinbefore mentioned. As to the leasing power, it is absolutely unlimited and unconditional. There is no limit as to the area which could be leased in any or all of the reserves. In this respect the statute is notably different from certain of the sections of the law of February 25, 1920, in which definite limitations were placed upon the power of the Secretary of the Interior to lease lands. The contrast between these two laws is so clear that it is inconceivable that Congress intended to hamper the Secretary of the Navy with any such limitations as to areas as those by which the Secretary of the Interior was bound under portions of the prior statute. Nor is the Secretary of the Navy limited as to the time for which any lease might be made. There is no limitation as to the terms and conditions, as to royalty or otherwise, which may be introduced in any lease made by the Secretary of the Navy. Here again this law differs notably from certain provisions of the Leasing Act. There is no limitation as to the purpose for which leases shall be made, except that they PAN AMERICAN CO. v. UNITED STATES. 461 456 Argument for Petitioners. must be, in the discretion of the Secretary of the Navy, “ for the benefit of the United States.” There is no condition fixing any particular set of circumstances or motives or reasons which must exist in order to give the Secretary of the Navy power to make any such lease. On behalf of the plaintiff it is urged that the power given the Secretary of the Navy to “ conserve, develop, use and operate” the lands in the naval petroleum reserves “ in his discretion, directly or by contract, lease or otherwise,” is limited by an implied condition that such development and operation could only be undertaken if drainage from outside sources was threatened. We submit that to so hold would be to write into the law a limitation and condition which it does not contain, and which if thus written in would absolutely prevent the taking out of oil from the land at times when, even if no drainage danger existed, the oil was needed either for the present or the future operations of the Navy. Plaintiff’s counsel further contend that the law did not give the Secretary of the Navy any power to establish, above ground, reserves of petroleum products, but only permitted him, if and when he had any available oil, to “use the oil for current use or exchange it for current use oil.” Any such attempted limitation is inconsistent with the reserve idea for national defense embodied in the designation “ Naval Reserves.” Any such limitation would at once strike down one of the important strategical and practical purposes for which these reserves were to be created, i. e., to create something which would not merely theoretically, but practically, be available for the uses of the Navy at such time as its exigencies might require. As a practical matter, if this construction were adopted, where would the line be drawn? The Secretary had the right to lease if he believed that the development of the property and the taking of the oil by means of a lease, would operate to the best in- 462 OCTOBER TERM, 1926. Argument for Petitioners. 273 U. S. terests of the Navy, either by the establishment of an above-ground reserve of fuel oil, into which the crude might be exchanged, or otherwise. His discretion will not be reviewed by the courts. Ness v. Fisher, 223 U. S. 683. The power to exchange: The word “exchange” is clearly the most important word in this branch of the statute, so far as the practical operation of the statute for the benefit of the Navy itself is concerned. For, remembering that under the former law royalty oils must always be sold, but that this would immediately make the operation of the naval reserves a commercial proposition, rather than a Navy fuel proposition, obviously the only way in which any royalty oils could be turned to account for naval benefit under the terms of the Act was by the exercise of the power to exchange them for other things. The Act as originally drawn contained the word “ refine ” so as to give the Secretary power to “ use, refine,” etc., but in its final form as adopted the word “ refine ” was stricken out. This left, as the sole and only mode by which royalty oils could be turned to account for naval purposes, the exercise of the exchange power. The well recognized meaning of “ exchange ” contains no limitation whatsoever as to the character or quality of the things which may be the subject of the exchange, or the terms or conditions of the contract. The only requisite is that the subject matter must be property other than money. Postal Tel. Co. v. R. R. Co., 248 U. S. 471; B. & 0. R. R. v. Western Union, 241 Fed. 170; 23 Cor. Jur. 186-7; Words and Phrases, 1st series, p. 2546. There is no logical basis for limiting the exchange practice to current fuel oil or to facilities for the storage of royalty oils only. The court holds that the Secretary may exchange royalty oil for fuel oil, but qualifies this by insisting that PAN AMERICAN CO. v. UNITED STATES. 463 456 Argument for Petitioners. he must intend this fuel oil for current use. And the court also holds that the Secretary had power to exchange royalty oil for storage facilities, but again qualifies this by saying that these storage facilities must be intended “ for the storage of royalty oils.” We submit that distinctions of this nature have no basis in the law or in logic. There is but one logical limitation of the exchange power contained in these general words, and that is that it must be exercised in the discretion of the Secretary for some purpose not merely relating to the Navy Department as an entirety, but related to the Naval Reserve, petroleum and petroleum products problems of the Navy Department. The power to store: The power to acquire storage facilities as well as petroleum products through the exercise of the exchange power is directly within the many cases holding that, where a particular power is granted, everything necessary to carry out the power and make it effective and complete will be implied from the language of the statute. Tel. Co. v. Eyser, 19 Wall. 427; Wilson v. Bank, 103 U. S. 778; Dooley v. Railroad, 250 Fed. 143: Ex parte Yarbrough, 110 U. S. 658; and other cases. To deny that this power was granted by the express use of the word “store,” as well as by the necessary and proper interpretation of the word “ exchange ” as an incidental thereto, would be to limit the exchange power to cases and places where containers already exist—a construction which, in view of the comprehensive plan to administer the Naval Reserves and to supply the needs of the Navy as to fuel and other petroleum products, would simply defeat and not effectuate the clear intent of Congress. The idea of an available fuel reserve was one of the ideas which led to the passage of the statute. The question of the proper interpretation of the statute cannot be affected by the amount of royalty oil which the Secretary may determine to exchange for fuel oil and its containers. 464 OCTOBER TERM, 1926. Argument for Petitioners. 273 U. S. The appropriation clause does not limit the power of the Secretary of the Navy under the Act, except in the expenditure of cash. This appropriation was not intended as a limitation upon any power, but solely as an aid to the execution of such powers as might require the use of cash. Even under the Circuit Court of Appeals’ interpretation of this clause, the $500,000 cannot be the final limit, because in a proper case it could be renewed and re-renewed under the last clause of the statute by being reimbursed out of any other “proper appropriations.” The clause refers to the “ use ” of royalty oil for fuel and the use of a part of some fuel appropriation to reimburse the $500,000 appropriation if some part has been spent. The draftsman of the clause doubtless had in mind the possibility that the Secretary might himself refine some of the royalty oil and use for current consumption a part of the products therefrom, in which case he would be saving the Government a part of the cash appropriation which otherwise would be called upon to furnish fuel for the Navy. The contracts of April 25 and December 11, 1922, were intended to be and were exchange contracts within the meaning of the law. This is true despite the provisions thereof by which the quantities of crude oil and fuel oil to be delivered were made variable in cases of variance of the reference prices of these two commodities. Postal Tel. Co. v. Tonopah R. R. Co., 248 U. S. 471; B. & O. R. R. v. Western Union Tel. Co., 241 Fed. 162; id., 242 Fed. 914; Chicago R. R. Co. v. Postal Tel. Co., 245 Fed. 592. If the Court should hold that this transaction presented any of the elements of a sale, then the plaintiff is no nearer success; for the reason that the plaintiff would have also proved that such a sale, even though the price is payable in property or rights, was likewise within the power of the Secretary to make. The statute as to PAN AMERICAN CO. v. UNITED STATES. 465 456 Argument for Petitioners. payment of cash into the Treasury applies only if there is cash. The power to lease naval reserve lands, conferred by the Act of June 4, 1920, supports the contracts as well as the leases in suit. The Secretary could have agreed that the consideration to the Government under any lease should be fuel oil, a refined product of crude oil, rather than the oil in its crude state at the time of original production; and that as part of the consideration from the lessee to the Government the former should provide storage tanks or other necessary improvements on the reserves. There was nothing in the law to prevent the Secretary from making the lease of December 11th upon consideration of a percentage of crude oil produced from the leased lands by the lessee, and a specified quantity of fuel oil and other pertroleum products in storage. In his judgment, exercising the discretion committed to him by law, it was “ for the benefit of the United States ” to lease, upon the above mentioned considerations, the lands in Naval Reserve No. 1. That judgment is unreviewable. Ness v. Fisher, 223 U. S. 683. The contracts of April 25 and December 11, 1922, are not void because providing for the establishment of a new naval fuel depot without express authority from Congress. They only provided for an enlargement of an existing fuel depot and not the establishment of a new one. It was nothing more than an amplification of a previously established fuel depot. The Act of June 4, 1920, gave the Secretary absolute power to provide for the construction of such storage tanks as he might see fit, whether these were constructed in connection with the depot already established or at a new depot. If these new tanks could not have been constructed without the prior express approval of Congress, then the Secretary could not have used any of the $500,000 general appropriation contained in the Act for the construction of a storage 42847°—27-----30 466 OCTOBER TERM, 1926. Argument for Petitioners. 273 U.S. tank at any place whatsoever unless Congress had passed a subsequent act approving the particular location for the tank. The contracts were not invalidated by reason of any lack of public advertisement. Neither § 3709 Rev. Stats., nor any other general law of the United States provides that competitive bidding or public advertisement should take place in cases of acquisition of property through exchange contracts. There are no general statutes requiring public advertisements as to sales. None of the statutes has anything to do with exchanges, which are covered by entirely different rules, and which would not usually be the subject of competitive bidding. In the absence of express statutory requirement, no competitive bidding is necessary in connection with governmental contracts. Price v. Fargo 24 N. D. 440; Crowder v. Sullivan, 128 Ind. 486. The Act of June 4, 1920, vested in the Secretary ample discretion to enter into contracts pursuant to such methods as seemed to him best. This special statute contains the only measure of his authority, and general enactments contained in prior laws have no bearing in such case. Fowler v. United States, 3 Ct. Cis. 43; In re Snow & Ice Transp. Co., 22 Op. Atty. Gen. 437; In re Claim of Leach, 9 Comp. Dec. 457; Pacific Whaling Co. v. United States, 36 Ct. Cis. 105; In re Claim of Iowa, 9 Comp. Dec. 656; United States v. Matthews, 173 U. S. 381; State v. Stoll,. 17 Wall. 425; Walla Walla v. Walla Walla Water Co., 172 U. S. 1; New York C. & H. R. R. v. United States, 21 Ct. Cis. 368; Cobb n. United States, 7 Ct. Cis. 470; Townsend v. Little, 109 U. S. 504; French v. Spencer, 21 How. 237; Kepner v. United States, 195 U. S. 125; Rodgers n. United States, 185 U. S. 87; Hemmer v. United States, 204 Fed. 906; Jackson v. Graves, 238 Fed. 117; United States v. Chase, 135 U. S. 255; Priddy v. Thompson, 204 Fed. 955; Anchor Oil Co. PAN AMERICAN CO. v. UNITED STATES. 467 456 Argument for Petitioners. v. Gray, 257 Fed. 283; Magone v. King, 51 Fed. 525. If Congress had intended to limit the inclusive provisions of the Act, it would have so provided in the law itself. The Secretary was not required to resort to competitive bidding as a condition precedent to the making of the leases of June 5 and December 11, 1922. Teapot Dome Lease Case, 5 F. (2d) 330; United States v. Bel-ridge Oil Co., D. C. S. D. Cal., July 17, 1925, unreported; affirmed, 13 F. (2d) 562; Shealey, Law of Government Contracts, p. 159. The Secretary of the Navy, in connection with the contracts and leases involved, exercised the power conferred upon him by the Act of June 4, 1920. The District Court found that the Secretary of the Navy did not in fact really make the contracts which in law he was authorized to make. The Circuit Court of Appeals did not approve or even discuss this finding of fact. Assuming the legal power of the Secretary of the Navy, then if he in fact exercised it, the instruments here in suit are unassailable. There was no claim in the courts below and there can be none here, that he was party to any conspiracy, to the commission of any fraud, that he was bribed or that on the subject of these contracts there was any misrepresentation made to him, any deceit practiced upon him, or any improper influence exerted over him, by Secretary Fall, on the one hand, or by any person connected with these defendants, on the other. The record is bare of any representations of any kind made by Secretary Fall to Secretary Denby in connection with the making of these contracts. And this statement is true as regards any and every officer of the Navy Department who had any connection with, or performed any duty in relation to, these contracts or the departmental plans, decisions, or negotiations which brought about their making. 468 OCTOBER TERM, 1926. Argument for Petitioners. 273 U.S. One who signs a document is presumed to have knowledge of its contents. There is always a presumption that official acts or duties have been properly performed. Ross v. Stewart, 227 U. S. 530; Cincinnati Ry. v. Rankin, 241 U. S. 319; Delassus v. United States, 9 Pet. 117; Phila. & T. R. Co. v. Stimpson, 14 Pet. 448; Bank of U. S. v. Dandridge, 12 Wheat. 65; Quinlan v. Green Co., 205 U. S. 410. The evidence shows that so far as the matters in issue are concerned the Secretary of the Navy exercised the powers and discretion conferred upon him by Congress, and that the Executive Order, except for the purpose of enlisting the aid of Interior Department officials, became immaterial. See Bostwick v. United States, 94 U. S. 53; Harker v. Harvey, 181 U. S. 481; Cook v. United States, 91 U. S. 389. The Navy Department had in the person of Robison, acting always under the immediate direction and supervision of Secretary Denby, complete domination, direction and control of leases and contracts in respect of the naval reserves. Secretary Fall did not make, or dominate the making of, the contracts and leases in suit. The contracts were not invalid because of any illegal delegation to the Secretary of the Interior of discretionary powers which could only be exercised by the Secretary of the Navy. The discretion which cannot be delegated is the discretion which involves the exercise of original power as to whether or not a public enterprise shall be undertaken. Such element of discretion as is involved in the performance of merely executive and business acts does not go to the essence of the matter and is not within any such prohibition. Cass County v. Gibson, 107 Fed. 363; Klamroth v. Albany, 127 N. Y. 575; Hitchcock v. Galveston, 96 U. S. 341. The meaning of the words “ ministerial ” and “ administrative ” cannot be construed as excluding all judgment and discretion. PAN AMERICAN CO. v. UNITED STATES. 469 456 Argument for Petitioners. An executory contract containing a void clause—unauthorized and ultra vires—may be modified by the parties so that the clause is no longer operative. The rights of the defendants under the leases do not depend upon whether the Secretary of the Interior could be delegated as the agent to carry out the intent of the preferential right clauses, which were not essential parts of the contracts. A contract is not affected by a clause which, although void in itself, is of such a nature that it does not appear that the contract would not have been made without it. United States v. Bradley, 10 Pet. 343; Navigation Co. v. Windsor, 20 Wall. 70; Gelpcke v. Dubuque, 1 Wall. 222; United States v. Hodson, 10 Wall. 408; Reagan v. Trust Co., 154 U. S. 395; Toplifi v. Topliff, 122 U. S. 121; McCullough v. Smith, 243 Fed. 823; Trustees v. Spitzer, 255 Fed. 126; In re Johnson, 224 Fed. 185. See also Burke v. Southern Pac. Co., 234 U. S. 669. An authorized officer may ratify contracts made, or containing clauses that are ultra vires. Gas Co. v. Dunn, 62 Cal. 580; Hitchcock v. Galveston, supra. Contracts void in part are not wholly void, Gas Co. v. Dunn, supra, and in this respect there is no difference between the rule applicable to contracts and to statutes. Albany Co. v. Stanley, 105 U. S. 305; Baldwin v. Franks, 120 U. S. 678; Field v. Clark, 143 U. S. 649; Poindexter v. Greenhow, 114 U. S. 270. There is no merit in the contention that there must have been a conspiracy because of the “ secrecy ” in con nection with the transactions here involved. The loan of $100,000 by Mr. Doheny to Mr. Fall in no way affected the transactions; it was a bona fide loan and not a bribe; and it was not proved by any evidence competent and admissible against the defendants. The voluntary statement made by Mr. Doheny in 1924 was no part of the res gestae of the litigated acts. Vicks- 470 OCTOBER TERM, 1926. Argument for Petitioners. 273 U.S. burg R. R. Co. v. O’Brien, 119 U. S. 99; Goetz v. Bank, 119 U. S. 551; Packet Co. v. Clough, 20 Wall. 528; Jones on Evidence, § 344. The declarant was no longer president of the companies and declarations made after he ceased to hold that office are not admissible against the companies. Walker Mfg. Co. v. Knox, 136 Fed. 334; Kenah v. Markee, 3 Fed. 45; Woolsey v. Haynes, 165 Fed. 391; Hudson Co. v. Higgins, 85 N. J. L. 268. There is no implied authority for a director or chairman of a board of directors to make statements binding a corporation, except when acting as a board. Farmers Co. v. Thrasher, 144 Ga. 598; Allington Co. n. Reduction Co., 133 Mich. 437; Kalamazoo Co. v. McAlester, 36 Mich. 326; Soper v. Buffalo R. R. Co., 19 Barb. 310; Peek n. Novelty Works, 29 Mich. 313; Niagara Bridge Co. v. Bachman, 66 N. Y. 61; Cook, Corporations, vol. 4, § 726; Breen’s Brice’s Ultra Vires, p. 503. A majority stockholder as such cannot by his statements bind a corporate entity. Statements made by a " witness ” while testifying are not admissible in any subsequent proceedings against the corporation of which he is an officer or agent. Vohs v. Shorthill, 124 Iowa 476; Columbia Bank N. Rice, 48 Neb. 431; Estey v. Birnbaum, 9 S. D. 176; Salley v. R. R. Co., 62 S. C. 128; Louisa Bank v. Burr, 198 la. 4; Bangs Co. n. Burns, 152 Mo. 350; Byrne v. Hafner Co., 143 Mo. App. 85; Rush v. Burns, 152 Mo. 660; St. Charles Bank v. Denker, 275 Mo. 607; Silzer Co. v. Melton, 129 Ga. 143; Harrison v. Bank, 127 Iowa 242; Fletcher, Corporations, vol. 3, § 2163. The evidence was not admissible as a declaration against interest and does not measure up to any test prescribed for this extreme exception to the hearsay rule. Mahaska v. Ingalls, 16 Iowa 81; Smith v. Moore, 142 N. C. 277, 7 L. R. A. (N. S.) 684; Halvansen v. Moon, 87 Minn. 18; Rand v. Dodge, 17 N. H. 343; Churchill v. Smith, 16 Vt. 560; Humes v. O’Brien, 74 Ala. 64; Berke- PAN AMERICAN CO. v. UNITED STATES. 471 456 Argument for Petitioners. ley Peerage Case, 4 Camp. Rep. 401; Sussex Peerage Case, 2 C. & F. 85; Estate of Baird, 193 Cal. 225; Smith v. Hansen, 34 Utah 171, 18 L. R. A. (N. S.) 520; Ins. Co. v. Hairston, 108 Va. 832, 128 A. S. R. 989; Tate v. Tate, 75 Va. 522; Massey n. Allen, 13 Ch. Div. 558; United States v. Donnelly, 228 U. S. 242; Xenia Bank v. Stewart, 114 U. S. 224; Jones, Evidence, 3d ed., § 323. There was no evidence of the transmission of any sum by Doheny to Fall, except hearsay. United States v. Donnelly, supra; Queen v. Hepburn, 7 Cr. 290. Neither the personal loan made by Mr. Doheny to Mr. Fall, nor any other fact proven in this case, constitutes a violation of public policy of such a nature as to render void or voidable the contracts and leases made and executed by Secretary Denby. No evidence of conspiracy or wrongdoing is afforded by correspondence between applicants for leases and various government officials, nor was it legally admissible. The suit cannot be maintained without proof of pecuniary damage to the United States resulting from the contracts and leases attacked. Smith v. Bolls, 132 U. S. 125; Sigafus v. Porter, 179 U. S. 116; Atlantic Co. v. James, 94 U. S. 207; Ming v. Woolfolk, 116 U. S. 599; Ins. Co. v. Bailey, 13 Wall. 616; Garrow v. Davis, 15 How. 272; Hyde v. Shine, 199 U. S. 62; United States v. Tin Co., 125 U. S. 273; United States v. Conklin, 177 Fed. 55; Clarke v. White, 12 Pet. 178. The Transport Company is entitled to be credited with the value of the royalty oil delivered to it by the United States up to the amount of the expenditures made by it upon the property of the Government under the terms of the contracts. In equitable suits to rescind contracts, a defendant who has expended money or parted with value pursuant to the terms of the contract, has an equity by reason thereof which a court of equity will recognize and enforce as a condition of granting relief to the plain- 472 OCTOBER TERM, 1926. Argument for Petitioners. 273 U. S. tiff. Neblet v. McFarland, 92 U. S. 101; Marsh v. Fulton County, 10 Wall. 684; Stoffela v. Nugent, 217 U. S. 499; Levy v. Kress, 285 Fed. 838; Dold Packing Co. N. Doermann, 293 Fed. 315; Twin Lakes Co. v. Dohner, 242 Fed. 402; Sha]er v. Spruks, 225 Fed. 482; Shearer v. Ins. Co., 262 Fed. 868; United States v. Royer, 268 U. S. 394; 2 Pomeroy, Eq. Jur., 3d ed., §§ 910, 1627; Story, Eq. Jur., 14th ed., § 957. This principle applies whether or not fraud or other form of bad faith be present. Stoffela v. Nugent, supra; Dold Co. v. Doermann, supra. It is not limited to cases where the plaintiff is wholly without remedy at law. Canal Bank v. Hudson, 111 U. S. 66; Armstrong v. Ashland, 204 U. S. 285. The maxim applies even though the contracts and leases were void because of lack of power to make them. If the innocent party sues in equity, the court will always recognize such equities as the guilty party possesses. Diamond Coal Co. v. Payne, 271 Fed. 362; United States v. Royer, supra. Even if there were a complete absence of power in the Secretary of the Navy to authorize the construction of the Pearl Harbor plant, nevertheless, there is no warrant for holding that the Transport Company, which actually went ahead and constructed the plant, is barred by any consideration of “ public policy ” from being entitled to retain the value which the Government delivered to it as against such construction, and from thereby avoiding the necessity of paying the Government twice for the value of all royalty oil received by it. The United States was acting in its commercial capacity and not as a sovereign. Cook v. United States, 91 U. S. 389; Hollerbach v. United States, 233 U. S. 165; Mann v. United States, 3 Ct. Cis. 404; United States v. N. Amer. Com. Co., 74 Fed. 151; United States v. Fuller Co., 296 Fed. 180; United States v. Bentley, 293 Fed. 235; United States v. Products Co., 300 Fed. 451; Lyons v. United States, 30 Ct. Cis. 352; Bostwick v. United PAN AMERICAN CO. v. UNITED STATES. 473 456 Argument for the United States. States, 94 U. S. 53. The United States is also bound by all rules regulating the remedy invoked which would apply if an individual were the plaintiff. United, States v. Thekla, 266 U. S. 340; The Western Maid, 257 U. S. 419; United States v. Stinson, 197 U. S. 205; McKnight v. United States, 98 U. S. 179; Brent v. Bank, 10 Pet. 614; United States v. Arredondo, 6 Pet. 712. If the United States seeks to rescind a contract, it must restore or maintain the status quo, even though the defendant could not bring an affirmative action in equity or at law to reimburse himself. Cf? Heckman v. United States, 224 U. S. 447; The Thekla, supra. The Circuit Court of Appeals also erred in refusing to the Petroleum Company the credit allowed by the District Court. Distinguishing, Pine River Co. v. United States, 186 U. S. 279; Woodenware Co. v. United States, 106 U. S. 432; Union Stores v. United States, 240 U. S. 284. None of these cases is applicable because in none of them did the party sued by the Government take possession and make expenditures pursuant to the terms of any contract which the Government had executed. In this case the United States is suing in its private capacity as a property owner. Denver R. R. Co. v. United States, 241 Fed. 614. Messrs. Owen J. Roberts and Atlee Pomerene for the United States. Where two courts have reached the same conclusion upon a question of fact it will be accepted here unless clearly erroneous. Norton v. Lamey, 266 U. S. 511; Adamson v. Gilliland, 242 U. S. 350. We have attempted to show that Secretary Denby was not informed and active in what he did in this connection; but it matters not whether he was informed or ignorant, if a corrupt money transaction took place with a Government official, thought and believed to have in- 474 OCTOBER TERM, 1926. Argument for the United States. 273 U.S. fluence or power in connection with the making of these contracts and leases. Nobody can read the record without being impressed with the constant activity of Fall in these matters, with the fact that whenever any critical situation arose Fall stepped in, and that it was his final say which made it possible for any of these papers to be placed before Secretary Denby for his signature; that always they went to Denby from Fall through Robison, and never direct, and that Robison, as the trial court has found, was so obsessed with getting storage facilities built with royalty oil rather than with appropriations by Congress that he was facile to do Fall’s bidding and to bring about what he wanted by whatever means Fall suggested and approved. It will not do for a company whose president had an improper financial transaction with a government official, to say that upon the government rests the burden of proof that that transaction was the final and efficient cause of the execution of the contract between the company and the government. Nor will it do for it to assert that, even if the burden remains upon it, it has carried the burden by proving that the corrupt and improper bargain made between its president and the government official was ineffectual because, forsooth, that* improper financial transaction took place between the president of the corporation and the wrong official of the government,—the one not in final control. The moment a court is convinced by clear and indubitable proof that such a transaction occurred between a government official and a contracting party, it will nullify and set aside the dealings between the government and such contracting party, in which such official participated, on the ground that they are all infected by the improper transaction, and that no court, in ease of the contracting party, will stop to appraise-the effect and the harm that has been done by such improper transaction, PAN AMERICAN CO. v. UNITED STATES. 475 456 Argument for the United States. Mechem, Public Officers, p. 246, § 368; Kerr, Fraud and Mistake, 5th ed., p. 180. Whether a “ loan ” or “ gift,” the money was paid with a full realization that it would tend to influence Fall in his official capacity. And it is clear that the transaction put Fall irrevocably in Doheny’s power. Such a transaction was certainly a “ bargain for a benefit ” and certainly tended to induce Fall to neglect, ignore, exceed or violate his public duty. Whatever Fall’s actual and legal relation to the contracts of April and December, he was then in fact an officer of the United States and active in the consummation of the contracts. Any duty he sustained in this behalf was a public duty, whether he acted de jacto or de jure. In connection with appellants’ contention that if Fall had not the legal power to act Doheny’s transaction with him can have no effect upon the validity of the contract, see Crocker v. United States, .240 U. S. 74; Garman v. United States, 34 Ct. Cis. 237; Atlantic Contr. Co. v. United States, 57 Ct. Cis. 185; Hume v. United States, 132 U. S. 406; Seltzer v. Met. Elec. Co., 199 Pa. 100; Herman v. Oconto, 100 Wis. 391; Weston v. Syracuse, 158 N. Y. 274; Wash. Irr. Co. n. Krutz, 119 Fed. 279. The statements of Doheny made before the Senate Committee on Public Lands were properly admitted in evidence, because he was an officer of the appellant corporations, acting for them and within the scope of his authority. Xenia Bank v. Stewart, 114 U. S. 224; Fidelity Co. v. Courtney, 186 U. S. 342; Chicago v. Greer, 9 Wall. 726; Aetna Co. v. Auto Co., 147 Fed. 95; Joslyn v. Cadillac Co., 177 Fed. 863; Rosenberger v. Wilcox Co., 145 Minn. 408; Kirkstall Co. v. Furness Ry. Co., L. R. 9 Q. B. 468; Chicago Ry. Co. v. Coleman, 18 Ill. 297; 2 Wigmore, Evidence, § 1048. The statements were likewise properly admitted as declarations against interest. The pecuniary and pro- 476 OCTOBER TERM, 1026. Argument for the United States. 273 U.S. prietary detriment to Mr. Doheny personally resulting from these statements is obvious. It is likewise clear that by claiming his constitutional privilege he made himself as though he were dead. Under these circumstances the statements were properly received in evidence as declarations against interest. Weber v. R. R. Co., 175 Iowa 358; Harriman v. Brown, 8 Leigh 697; Griffith v. Sauls, 77 Tex. 630; 3 Wigmore, Evidence, § 1456; 4 Chamberlayne, Evidence, § 2771. These statements, however, are not the only testimony upon which the finding with regard to the $100,000 transaction rests. The trial court properly admitted the evidence of Mrs. Edward L. Doheny, and evidence of communications between applicants for leases and various government officials during the period covered by the negotiation and execution of the contracts and leases in question. Pecuniary damage to the United States was shown; but in the absence of any such showing the decree against the appellants was justified and required. Appellants have entered into possession and extracted large quantities of oil, gas, and other petroleum products. This waste not only runs into several millions of dollars, but also has impaired the value of the leased lands by reason .of the mineral extracted therefrom. No burden rests upon the United States to establish as a condition precedent to its right to relief that the contracts and leases are not commercially good ones and that better ones might have been obtained. Because of its baneful tendency, equity is eager to do all it can to redress this kind of a fraud by a fiduciary. United States v. Carter, 217 U. S. 286; Findlay v. Pertz, 66 Fed. 427; Michoud v. Girod, 4 How. 502; Robertson n. Chapman, 152 U. S. 673; Com. S. S. Co. v. Amer. Ship Co., 197 Fed. 780. The books are full of cases where the United States has brought suit to cancel patents granted illegally or fraudulently. Causey v. United States, 240 U. S. 399; United States v. Trinidad PAN AMERICAN CO. v. UNITED STATES. 477 456 Argument for the United States. Co., 137 U. S. 160; Diamond Co. v. Payne, 271 Fed. 362; United States v. Poland, 251 U. S. 221; Heckman v. United States, 224 U. S. 413; Curtis Co. v. United States, 262 U. S. 215; United States v. Sou. Pac. Co., 251 U. S. 1; Wright Co. v. United States, 236 U. S. 397; Wash. Sec. Co. v. ^United States, 234 U. S. 76; Diamond Coal Co. v. United States, 233 U. S. 236; United States v. Ketten-bach, 208 Fed. 209. A violation of the public statutes is in itself ground for cancellation and rescission in equity. See Hammerschmidt v. United States, 265 U. S. 182. A court will always presume injury where favoritism was shown to the contracting party by government officials, and will more readily do so where, as here, there is an admission of an enormous profit to be made out of a contract granted by private negotiation to a favored party and where, also, performance under the contract shows that the expected profits will, in all probability, be realized. The Act of June 4, 1920, did not authorize the execution of the contracts and leases. The purpose of the Act was to enlarge the powers of the Secretary of the Navy so that he might at will provide adequate protection against drainage where such was needed. The underground reserve idea had been in well known effect in the case of reserves Nos. 1 and 2 since their withdrawal by President Taft in 1912. It was impliedly ratified by Congress in 1920, in that the Leasing Act of February 25, 1920, conferred a right to lease land in the naval reserves only where there were already producing wells and in compromise of valid existing claims. Had Congress intended or expected a sharp departure from this established policy presumably some definite indication to that effect would be found in the Act of June 4th. Instead, this short enactment, which is itself a mere rider to the Naval Appropriation Act for the fiscal year 1921, begins its operative language with reference to the naval re- 478 OCTOBER TERM, 1926. Argument for the United States. 273 U.S. serves by the word “ conserve.” The further language of the Act does give the Secretary of the Navy an unrestricted power as to how much of the lands he shall lease. We think, however, that it shows an assumption on the part of Congress that this power was needed, and presumably therefore would be exercised, for more adequately protecting the reserves against drainage from neighboring drillers. That this would render advisable development of certain portions of the land by leases under which royalty oils would accrue to the United States, and that such oils, or part of them, would be sold, is apparent from the Act. From the sales of royalty oil a sum of $500,000 is made available to enable the Secretary to carry out the necessary development and storage which might be incident to protection of the reserves. This was a reasonable provision for such purpose if Congress contemplated only such development as was needed for protection. It was a wholly and ridiculously insignificant appropriation if Congress contemplated that the Secretary of the Navy would suddenly throw the reserves open to unlimited exploitation. There were, in all, three petroleum reserves with a total acreage of nearly eighty thousand acres, and in addition two shale-oil reserves. Had Congress anticipated the full development of such a vast and rich reservoir of oil, some indication of that expectation and some provision for the disposal of the resulting products or money would be found in the Act; something on such a subject would have found its way into the debates of Congress or the reports of committees. If we look to departmental construction of the purpose of the Act, we find that the established policy of an underground reserve was rigidly adhered to. Not until Secretary Fall kindled the imagination of certain enthusiasts in the Navy Department in the summer of 1921, with the idea of an exchange for storage proposition, did the thought occur to anyone even to investigate as to PAN AMERICAN CO. v. UNITED STATES. 479 456 Argument for the United States. whether the Act permitted such a policy. Further, the record shows that down to the very end of all the transactions here involved, the Secretary of the Navy maintained a fixed purpose of leasing only where such leasing was required as a protective measure. Robison knew this was the policy of his chief and the policy of Congress. Prior to the Act of June 4, 1920, the royalty oil accruing to the Government from compromise leases made on Naval Reserve Lands, was, pursuant to the Leasing Act of February 25, 1920, sold; and the receipts from such sales were paid into the Treasury. This was the express mandate of the Act of February 25, 1920. After the passage of the Act of June 4, 1920, any cash received from sales of royalty oil from leases made pursuant to it would also go into the Treasury as miscellaneous receipts (Rev. Stats. §§ 3617, 3618), providing that all moneys received from the sale of government property, shall be covered into the Treasury. Everyone recognized that under the Act of June 4, 1920, the royalty crude oil coming to the Government under any leases theretofore made or thereafter to be made on lands in the naval reserves could be exchanged for fuel oil and other petroleum products useable by the Navy in its current operations. Nobody suspected or suggested apparently that the royalty oil could itself be used as a consideration for the procurement by the Navy of other physical property and assets, until more than a year after the Act of June 4, 1920, became law. In the latter part of 1921, Fall and Robison developed the plan of so using royalty oil and attempted to justify its use under the Act of June 4, 1920. This plan soon enlarged itself into a program for the taking out of all the petroleum in the reserves, thus reversing the policy adopted by Congress and adhered to for many years, and using the royalty oil coming from the lessees for the construction of structures and filling them with petroleum 480 OCTOBER TERM, 1926. Argument for the United States. 273 U.S. products useable by the Navy. The expedient was adopted of “ exchanging ” the crude oil for so-called reserve fuel oil and petroleum products, and, as an ancillary matter, “ exchanging ” this royalty crude oil also, and in addition, under construction contracts for the building of naval fuel depots in which the fuel oil and petroleum products acquired were to be stored at various points in the United States and its possessions. Not only was the Act passed in pursuance of a conservation policy, but, disregarding all other statutory and constitutional provisions, and supposing it stood alone, it does not confer an authority for the making of the contracts under attack. “To use” connotes consumption, but when we examine the last two provisos of the Act, We find the “ use ” specifically limited. The one proviso appropriates “ not exceeding $500,000 ” of the moneys turned in or to be turned into the Treasury from royalties on Naval Reserve lands prior to July 1, 1921, “ for this purpose.” So that any “ use ” that is to be made of the oil must not cost in excess of that sum. The other proviso makes clear that “ use ” means “ consumption ” for it requires that the $500,000 appropriation shall be “ reimbursed from the proper appropriations, on account of the oil and gas products from said properties used by the United States at such rate not to exceed the market value of the oil as the Secretary of the Navy may direct.” It is, therefore, clear that if the Government “ uses ” this oil for any purpose for which Congress has appropriated money for the purchase of oil, such appropriation must be debited and the appropriation made in the Act of June 4, 1920, must be credited with the value of the royalty oil so “ used.” The power to “ store ” covers both royalty crude oil and products of the royalty oil. There are certain products, such as gasoline and gas, which are obtained from royalty crude oil. As the Secretary is given power to operate the PAN AMERICAN CO. v. UNITÊD STATES. 481 456 Argument for the United States. reserves by contract or otherwise, he might make a contract whereby the operator would turn over to him crude oil and products of the crude oil, which he might store. What may be spent for this purpose? The answer is found in the next proviso. There is “ made available ” “ riot exceeding $500,000 ” “ for this purpose.” Moreover, these contracts are not for the storage of “ the oil and gas products ” of the naval reserve lands, nor for the storage of the “ products ” of such oil and gas. The “ exchange ” contemplated was limited to fuel oil and other derivatives of petroleum. It could not extend to the acquisition of anything which might be of benefit to the United States. In holding that it did so extend, the Judge Advocate General of the Navy fell into grave error. He held the word to be unlimited. The transactions under the contracts of April 25 and December 11, 1922, are not in fact exchanges within the meaning of the Act. Not only the nature of the transaction, but the language used by the parties, shows that they realized a sale was being consummated, and not an exchange. The legal concept of an exchange as distinguished from a sale is a transaction whereby little or no emphasis is placed upon value; whereby the parties intend to trade one specific article for another specific article or articles of property. When the element of value creeps in as a primary consideration we have a sale and purchase rather than an exchange. The power “ to sell ” was to sell for a money consideration only. The Act itself, by an appropriation, provides the means of storage. The following acts: Rev. Stats. §§ 3732, 3733; 1906, c. 3078, 34 Stat. 255; 1906, c. 3914, 34 Stat. 764, § 9, forbid any contract being entered into, such as those in issue in this case, which will bind the Government to pay a larger sum than the amount in the Treasury appropriated for the specific purpose, un-42847°—27------31 482 OCTOBER TERM, 1926. Argument for the United States. 273 U. S. less the Act shall in specific terms declare that such contract may be executed. Sutton v. United States, 256 U. S. 575; Hooe v. United States, 218 U. S. 322; Chase v. United States, 155 U. S. 489; Bradley n. United States, 98 U. S. 104, are typical cases showing that this Court construes this matter strictly and never from a general authority to contract or to do a certain act conferred upon an executive official draws the conclusion that the policy of Congress touching the limitation of projects by appropriation was! intended to be overruled or an exception created. The last proviso requires the appropriation of $500,000 to be reimbursed from the proper appropriation on account of the use of the royalty oil. The appropriation of $500,000 is itself an appropriation for the procurement of storage. The contracts were violative of the law as to the location and establishment of fuel depots. The power to establish depots of coal and other fuel was delegated to the Secretary of the Navy under the Act of August 31, 1842, 5 Stat. 577, which later became Rev. Stats. § 1552. This delegation was subsequently revoked. Act of March 4, 1913, 37 Stat. 898. See House Report, 62d Cong., -3d Sess. In appropriation acts from 1914 onward, the various fuel depot projects are specifically mentioned and a separate appropriation is made for each. Upon the repeal of Rev. Stats. § 1552, the exclusive authority to locate and establish fuel depots was revested in Congress by virtue of the Constitution. The contracts of April 25 and December 11, 1922, were not made by advertisement and competitive bidding, as required by law. Rev. Stats. § 3709; United States v. Purcell Co., 249 U. S. 313; United States v. Ellicott, 223 U. S. 524. The Act of June 4, 1920, did not repeal or supersede prior general statutes on fuel depots, competitive bidding, Government contracts, and the sale of Gov- PAN AMERICAN CO. v. UNITED STATES. 483 456 Argument for the United States. ernment property. See Gt. Nor. Ry. v. United States, 208 U. S. 452; Erie Coal Corp. v. United States, 266 U. S. 518; United States v. Barnes, 222 U. S. 513; Robertson v. Labor Board, 268 U. S. 619; In re East River Co., 266 U. S. 355; United States v. Sweet, 245 U. S. 563; Panama R. R. Co. v. Johnson, 264 U. S. 375; United States v. Greathouse, 166 U. S. 601; Ex parte Webb, 225 U. S. 663; Washington v. Miller, 235 U. S. 422; Bookbinder v. United States, 287 Fed. 790; Witte v. Shelton, 240 Fed. 265; United States v. Noce, 268 U. S. 613. The provisions of the contracts and leases constituted an illegal attempt to delegate the power conferred upon the Secretary of the Navy by the Act of June 4, 1920. The trial court held that the Executive Order, so far as it attempted to transfer the administration of the reserves to the Secretary of the Interior and pass over to him discretionary powers vested in the Secretary of the Navy, was void and of no effect. We understand that counsel for appellants concur in this view. By the contract of April 25, 1922, the Secretary of the Navy purported to transfer the procurement of fuel oil and of storage tankage therefor, dredging, docking, etc., at the Pearl Harbor Naval Station to the Secretary of the Interior. He further purported to transfer the entire administration over half of Naval Reserve No. 1 and its leasing to the Secretary of the Interior. Under the contract and lease of December 11, 1922, no power of any kind is left in the Secretary of the Navy. The United States is not estopped to have these contracts rescinded because they have been executed. Filor v. United States, 9 Wall. 45; Utah Power Co. v. United States, 243 U. S. 389; Chanslor-C an field Co. v. United States, 266 Fed. 145; Bayou Club v. United States, 260 U. S. 561. That there is no power in an official, in whom discretionary powers have been vested by law, to delegate them is well settled. Light Co. v. Dunn, 62 Cal. 580; 484 OCTOBER TERM, 1926. Argument for the United States. 273 U.S. Brummett v. Ogden Co., 33 Utah 285; Oakland v. Carpentier, 13 Cal. 540; Mann v. Richardson, 66 Ill. 481; Mullarky v. Cedar Falls, 19 Iowa 21; Clark v. Washington, 12 Wheat. 40; People v. Street Co., 225 Ill. 470. The contracts of April 25 and December 11, 1922, are not in any proper sense of the word ultra vires contracts. They are contracts contrary to public policy, violative of the expressed will of the legislative branch of the Government and on their face utterly null and void. The companies are not entitled to be credited with their respective disbursements under the fraudulent and illegal contracts and leases. Allowance of credit for the Pearl Harbor project would be subversive of the “ fuel depot ” policy of the United States and in violation of the law of illegal public contracts. This Court has repeatedly held that the equitable maxim, “ He who seeks equity must do equity,” should have no place in an equitable proceeding brought by the United States to enforce a public statute and its underlying policy. Causey v. United States, 240 U. S. 399; United States v. Trinidad Coal Co., 137 U. S. 160; Heckman v. United States, 224 U. S. 413; Wash. Sec. Co. v. United States, 234 U. S. 76; United States v. Poland, 251 U. S. 221; Diamond Co. v. Payne, 271 Fed. 362. One dealing with public officers is bound to take notice of the extent of their powers and assumes the risk of their acting strictly within their official authority. Sutton n. United States, 256 U. S. 575; Whiteside v. United States, 93 U. S. 247; The Floyd Acceptances, 7 Wall. 666; Chase v. United States, 155 U. S. 489; Hooe v. United States, 218 U. S. 322; Utah Power Co. v. United States, 243 U. S. 389; United States v. Levinson, 267 Fed. 692; United States v. Bentley, 293 Fed. 229. That the United States received full value for every dollar spent, does not save an illegal government contract. PAN AMERICAN CO. v. UNITED STATES. 485 456 Opinion of the Court. Filor v. United States, 9 Wall. 45. The United States may not be estopped by the unlawful acts of its public officers. Bayou Club v. United States, 260 U. S. 561. Allowance of credit for expenditures and improvements on Naval Petroleum Reserve No. 1 would be in violation of the law governing mala fide trespasses upon the public domain. The wilful trespasser not only must account for the full market value of all minerals extracted from public lands, together with any and all accretions thereto, but also forfeits all permanent improvements to the realty. In no event is he permitted to improve the United States out of its lawful property or to make a profit at its expense, and his actual costs in extracting the mineral are never recoverable. Pine River Co. v. United States, 186 U. S. 279; Woodenware Co. v. United States, 106 U. S. 432; Benson Co. v. Atla Min. Co., 145 U. S. 428; Guffey v. Smith, 237 U. S. 101; Union Stores v. United States, 240 U. S. 284; Big Sespe Co. v. Cochran, 276 Fed. 216. The shield of “ color of title ” may never be raised by fraudulent trespassers in their own defense. Big Sespe Co. v. Cochran, supra. Mr. Justice Butler delivered the opinion of the Court. This suit was brought by the United States in the northern division of the southern district of California against the petitioners, Pan American Petroleum and Transport Company and Pan American Petroleum Company. The former will be called the Transport Company and the latter the Petroleum Company. The relief sought is the cancelation of two contracts with the Transport Company, dated April 25, and December 11, 1922, and two leases of lands in Naval Petroleum Reserve No. 1, to the Petroleum Company, dated June 5 and December 11, 1922, an injunction, the appointment of receivers, and an accounting. The complaint alleges that the con- 486 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. tracts and leases were obtained and consummated by means of conspiracy, fraud and bribery, and that they were made without authority of law. Receivers were appointed to take possession of and operate the properties pending the suit. At the trial the court heard much evidence and later made findings of fact; stated its conclusions of law; announced an opinion, 6 F. (2d) 43, and entered its decree. It adjudged the contracts and leases void and ordered them canceled; it directed the Petroleum Company to surrender the lands and equipment, and stated an account between the United States and each of the companies. The Transport Company was charged the value of petroleum products received by it and the amount of profits derived upon their resale, and was given credit for the actual cost of construction work performed and of fuel oil delivered under the contracts. The Petroleum Company was charged the value of the petroleum products taken under the leases and given credit for actual expenditures in drilling and operating wells and making other useful improvements. Interest was added to each of the items. The companies appealed to the Circuit Court of Appeals, and the United States took a cross appeal. That court affirmed the decree so far as its awards affirmative relief to the United States and reversed that part which gives credit to the companies. 9 F. (2d) 761. Under R. S. §§ 2319, 2329, and the Act of February 11, 1897, c. 216, 29 Stat. 526, public lands containing oil were open to settlement, exploration and purchase. Exploration and location were permitted without charge, and title could be obtained for a nominal amount. United States v. Midwest Oil Co., 236 U. S. 459, 466. Prior to the autumn of 1909 large areas of public land in California were explored; petroleum was found, patents were obtained, and large quantities of oil were taken. In September of that year, the director of the Geological Survey PAN AMERICAN CO. v. UNITED STATES. 487 456 Opinion of the Court. reported that, at the rate oil lands in California were being patented, all would be taken within a few months, and that, in view of the increased use of fuel oil by the Navy, there appeared to be immediate need for conservation. Then the President, without specific authorization of Congress, by proclamation withdrew from disposition in any manner specified areas of public lands in California and Wyoming amounting to 3,041,000 acres. By the Act of June 25, 1910, c. 421, 36 Stat. 847, Congress expressly authorized the President to withdraw public lands containing oil, gas and other minerals. An executive order of July 2, 1910, confirmed the withdrawals then in force. By a later order, September 2, 1912, the President directed that some of these lands “ constitute Naval Petroleum Reserve No. 1 and shall be held for the exclusive use or benefit of the United States Navy until this order is revoked by the President or by Act of Congress.” This Reserve includes all the lands involved in this suit. By a similar order, December 13, 1912, the President created the Naval Petroleum Reserve No. 2. The Leasing Act of February 25, 1920, c. 85, 41 Stat. 437, regulates the exploration and mining of public lands, and authorizes the Secretary of the Interior to grant permits for exploration and make leases covering oil and gas lands, exclusive of those withdrawn or reserved for military or naval purposes. The Act of June 4, 1920, c. 228, 41 Stat. 812, 813, appropriated $30,000 to be used, among other things, for investigating fuel for the Navy and the availability of the supply allowed by naval reserves in the public domain. It contains the following: “Provided, That the Secretary of the Navy is directed to take possession of all properties within the naval petroleum reserves ... to conserve, develop, use, and operate the same in his discretion, directly or by contract, lease, • or otherwise, and to use, store, exchange, or sell the oil and gas products thereof, and those from all roy- 488 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. alty oil from lands in the naval reserves, for the benefit of the United States: . . . And provided further, That such sums as have been or may be turned into the Treasury of the United States from royalties on lands within the naval petroleum reserves prior to July 1, 1921, not to exceed $500,000, are hereby made available for this purpose until July 1, 1922: Provided further, That this appropriation shall be reimbursed from the proper appropriations on account of the oil and gas products from said properties used by the United States at such rate, not in excess of the market value of the oil, as the Secretary of the Navy may direct.” March 5, 1921, Edwin Denby became Secretary of the Navy and Albert B. Fall, Secretary of the Interior. May 31, 1921, the President promulgated an executive order purporting to commit the administration and conservation of all oil and gas bearing lands in the Reserves to the Secretary of the Interior, subject to the supervision of the President. The contract, dated April 25, 1922, was executed on behalf of the United States by the Acting Secretary of the Interior and by the Secretary of the Navy. The Transport Company agreed to furnish at the Naval Station at Pearl Harbor, Hawaii, 1,500,000 barrels of fuel oil and deliver it into storage facilities there to be contructed by the company according to specifications of the Navy. The Company was to receive its compensation in crude oil to be taken from the Reserves. The quantity, on the basis of the posted field prices of crude oil prevailing during the life of the contract, was to be the equivalent of the market value of the fuel oil and also sufficient to cover the cost of the storage facilities. The United States agreed to deliver to the company at the place of production month by month all the royalty oil furnished by lessees in Reserves Nos. 1 and 2 until all claims under the contract were satisfied. It was stipulated that if production of crude oil PAN AMERICAN CO. v. UNITED STATES. 489 456 Opinion of the Court. should decrease so as unduly to prolong performance, “ then the Government will, in the discretion of the Secretary of the Interior, grant additional leases on such lands as he may designate in naval petroleum reserve No. 1 as shall be sufficient to maintain total deliveries of royalty oil under this contract at the approximate rate of five hundred thousand barrels (500,000) per annum.” And, by Article XI of the contract, it was’ agreed that, if during the life of the contract such additional leases should be granted within specified areas, “ the contractor shall first be called upon by the Secretary of the Interior to meet such drilling conditions and to pay such royalties as the Secretary may deem just and proper, and in the event of his acceptance . . . the contractor shall be granted by the Government a preferential lease on such tracts as the Secretary of the Interior may decide to lease. In the event of the failure of the contractor to agree . . . then said lease or leases may be offered for competitive bidding, but the contractor shall have a right to submit a bid on equal terms with others engaged in said bidding.” The lease of June 5, 1922, was signed by the Assistant Secretary of the Interior. It was made in accordance with a letter of April 25, 1922, signed by the Acting Secretary of the Interior and the Secretary of the Navy, and sent to J. J. Cotter, who was Vice-President of the Transport Company. It covered the quarter section described in the letter. This lease was assigned to the Petroleum Company. The contract dated December 11, 1922, is signed for the United States by the Secretary of the Interior and the Secretary of the Navy. It declares that it is desired to fill storage tanks at Pearl Harbor promptly as they are completed and also to procure additional fuel oil and other petroleum products in storage there and elsewhere; that the Secretary of the Navy requested the Secretary of the 490 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. Interior as administrator of the Naval Petroleum Reserves to arrange for such products in storage and to exchange therefor additional royalty crude oil, “ the probable cost of the additional products and storage immediately planned for being estimated at fifteen million dollars more or less ”; that this cannot be done on the basis of exchange for the crude oil coming to the Government under the present leases; ‘that, under the contract of April 25, 1922, the company is granted preferential right to leases to certain lands in Naval Reserve No. 1; and that the company was planning to provide refinery facilities at Los Angeles, together with pipe lines from the field to the refinery and docks, and to erect storage having capacity of 2,000,000 barrels or more. The company agreed to furnish, as directed by the Secretary of the Interior, the fuel oil in storage at Pearl Harbor covered by the earlier contract; to construct for actual cost additional storage facilities there, as required, up to 2,700,000 barrels; to furnish fuel oil and other petroleum products in the proposed storage as and when completed on the basis of market prices plus transportation cost at going rates; to furnish without charge, until expiration of the contract, storage for 1,000,000 barrels of fuel oil at Los Angeles; to fill it with fuel oil for the Navy at such time as Government royalty oil should be available for exchange, and to bunker Government •ships from such oil at cost; to maintain for 15 years subject to the demands of the Navy 3,000,000 barrels of fuel oil in the company’s depots at Atlantic Coast points; to furnish crude oil products and storage facilities at other points, designated by the Government, when sufficient crude oil has been delivered to satisfy the Pearl Harbor contract; to sell the Navy at ten per cent, less than market price additional available fuel oil produced from the reserves and manufactured products from its California refineries; to credit the Navy for crude oil at published prices and for gas and casinghead gasoline at prices fixed PAN AMERICAN CO. v. UNITED STATES. 491 456 Opinion of the Court. in the leases, and to satisfy any surplus credits of the Government by delivery of fuel oil or other petroleum products, by construction of additional storage facilities, or by payment in cash as the Government might elect. The United States agreed to deliver to the company in exchange all royalty oil, gas, and casinghead gasoline produced on Reserves Nos. 1 and 2 until its obligations were discharged and in any event for fifteen years after the expiration of the contract of April 25, 1922 [which was without specified time limit], and to lease to the company all the unleased lands in Reserve No. 1. The lease of December 11, 1922, is signed for the United States by the Secretary of the Interior and the Secretary of the Navy. It covers all unleased lands in Reserve No. 1, but with a provision that no drilling shall be done on approximately the western half without the lessor’s consent. It runs for twenty years and so long thereafter as oil or gas is produced in paying quantities. The royalties range from 12]/2 to 35 per cent. A Joint Resolution adopted by the Senate and House of Representatives and approved by the President, February 8, 1924, 43 Stat. 5, stated that it appeared from evidence taken by the Committee on Public Lands and Surveys of the Senate that the contract of April 25, 1922, and the lease of December 11, 1922, were executed under circumstances indicating fraud and corruption, without authority on the part of the officers purporting to act for the United States and in defiance of the settled policy of the Government to maintain in the ground a great reserve supply of oil adequate to the needs of the Navy. It declared the contracts and leases to be against public interest and that the lands should be recovered and held for the purposes to which they were dedicated. And it authorized and directed the President to cause suit to be prosecuted for the annulment and cancelation of the lease and all contracts incidental and supplementary thereto, 492 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. and to prosecute such other action or proceedings, civil and criminal, as might be warranted. The findings contain what in abridged substance follows: E. L. Doheny controlled both companies. Fall was active in procuring the transfer of the administration of naval petroleum reserves from the Navy Department to the Interior. And, after the executive order was made, he dominated the negotiations that eventuated in the contracts and leases. From the inception no matter of policy or action of importance was determined without his consent. Denby was passive throughout, and signed the contracts and lease and the letter of April 25, 1922, under misapprehension and without full knowledge of their contents. July 8,1921, Fall wrote Doheny: “ There will be no possibility of any further conflict with Navy officials and this Department, as I have notified Secretary Denby that I should conduct the matter of naval leases under the direction of the President, without calling any of his force in consultation unless I conferred with himself personally upon a matter of policy. He understands the situation and that I shall handle matters exactly as I think best and will not consult with any officials of any bureau in his Department, but only with himself, and such consultation will be confined strictly and entirely to matters of general policy.” After that Doheny and his companies acted upon the belief that Fall had authority to make the contracts and leases. Doheny and Fall conferred as to a proposal to be made by the Transport Company whereby it should receive from the United States royalty oil for constructing storage facilities at Pearl Harbor and filling them with fuel oil. They discussed the matter of granting other leases in Reserve No. 1. They also discussed a petition of the Petroleum Company for reduction of royalties under an existing lease. Fall and Admiral John K. Robison, per- PAN AMERICAN CO. v. UNITED STATES. 493 456 „ Opinion of the Court. sonal representative of the Secretary of the Navy in naval reserve matters, agreed that the proposed contract should be kept secret so that Congress and the public should not know what was being done. [But it is to be said that Robison’s motives in this were not the same as Fall’s.] November 28, 1921, Doheny submitted to Fall a proposal stating that, in accordance with a suggestion from Fall, he had made inquiries as to cost of constructing storage for 1,500,000 barrels of fuel oil at Pearl Harbor. He gave in detail figures relating to such cost, the price of crude oil in the field and of fuel oil at Pearl Harbor, and stated the total amount of crude oil necessary to pay for the tanks and fuel oil “ on the basis of our being paid for both tanks and oil in royalty crude oil produced from lands within the naval reserves and to be leased to us.” The letter concluded : “ I suppose you will turn this matter over to First Assistant Secretary Finney, who, with Rear Admiral Robison, may arrange the details of it during your absence, and as I also expect to be absent, I am confidentially furnishing Mr. Cotter with the information so that he can intelligently discuss the matter with Mr. Finney.” And the next day Fall wrote Robison : “ Mr. Cotter will wait upon you with data, etc., with relation to oil tanks and royalty oils in connection with Pearl Harbor demands. I have asked him also to hand you, for your inspection, the original of a letter from Colonel Doheny addressed to myself, containing a résumé of the data. Should you think best to accept this proposition then of course it would be necessary, in my judgment, to turn over to Col. Doheny, if we can do so, leases upon further wells or area in the naval reserve in which he is now drilling. If this is done it must be understood that the royalty must be made less than are the present royalties being paid by the Midway and Pan American.” The letter stated that the gas pressure was lessening and that the companies were suffering loss in the payment of the 494 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. 55 per cent, royalty. “ If you approve the proposition, will you kindly indicate to me such approval by simple endorsement upon Col. Doheny’s letter to myself, signed by yourself. Your simple O. K. will be sufficient.” Doheny had agreed to advance $100,000 to Fall as and when he should need it. November 30, at Fall’s request, Doheny sent him $100,000 in currency. The money was obtained in New York on the check of Doheny’s son who carried it to Washington and gave it to Fall. And Fall sent to Doheny by the son a demand note for $100,000. No entry, of the advance was made in the accounts of Doheny or the petitioners. Nothing has been paid on account of principal or interest. At that time- it was understood between Doheny and Fall that the latter need not repay it in kind. Doheny intended, if Fall did not dispose of a certain ranch in New Mexico, to cause the Transport Company to employ him at a salary sufficient to enable him, out of one-half of it, to pay off the amount in five or six years; and he knew that Fall expected to leave the service of the Government and accept employment with one of his companies. A few weeks after it was given, Doheny tore Fall’s signature off the note so that it would not be enforceable in the hands of others. December 1, Fall gave instructions to subordinates that the petition of the Petroleum Company for reduction of royalties should not be granted but that, as relief, the company be given another lease at regulation royalties. Long in advance of receipt of bids Fall knew that the Transport Company would offer to construct storage facilities at cost and to fill them with fuel oil in exchange for royalty oil and for the assurance that other leases on lands in Reserve No. 1 would be granted to it. Others were not advised that the United States would consider a bid conditioned on assurance to the bidder of other leases or preferential right to leases. Due to the interest of Fall, the Transport Company had opportunities for conference with PAN AMERICAN CO. v. UNITED STATES. 495 456 Opinion of the Court. and advice from those acting for the United States which were not given to others. There were five other oil companies with which officers or employees of the United States conferred as to the proposed contract. Fall knew that two of these would not bid because they considered the proposed contract illegal; that two of the others had not been invited to bid, and that the other one would refuse to bid unless authority for the contract should be obtained from Congress. Invitation for proposals was sent two construction companies; but Fall understood and stated that it was impossible for either of them to bid because payment had to be made in royalty oil. April 13, Fall left Washington for Three Rivers, New Mexico. Before leaving he gave instructions that no bids should be accepted or contract awarded without his consent. The bids were opened April 15. Four were received; one was conditioned upon Congressional approval of the contract; one did not cover the construction work and applied only to furnishing the fuel oil; the other two proposals were from the Transport Company: one of them, designated A, was in accordance with the invitation for bids, but the other, called B, was not. The latter named the smaller lump sum in barrels of crude oil; it stated that if actual cost was less than a specified amount the saving should be credited to the Government; and it was conditioned upon granting the bidder preferential right to become lessee in all leases that thereafter might be granted by the United States for recovery of oil and gas in Reserve No. 1. On April 18, Edward C. Finney, Acting Secretary of the Interior, telegraphed Fall that certain officials and employees of the United States recommended acceptance of proposal B; on the same day Fall consented by telegram, and Finney sent a letter to the company purporting to award the contract to it. Cotter then stated that the Transport Company did not desire to make the contract unless the United States would agree, within twelve 496 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. months, to grant the company a lease or leases of lands in Reserve No. 1. He also raised the question whether the executive order of May 31, 1921, had any legal force and refused to permit the company to make the contract unless Denby should sign as Secretary of the Navy. April 20, Arthur W. Ambrose of the Bureau of Mines was sent from Washington to Three Rivers with the papers in the case. He was instructed to consult Fall as to whether Denby should be made a party to the contract. April 23, Fall by telegram agreed that Denby should be made a party and directed Finney to execute the contract for the Department of the Interior. While it is not clearly shown that Ambrose took with him a draft of the letter of April 25, signed by Denby and Finney and sent to Cotter, he was instructed to, and did, consult Fall concerning it. That letter declares that the company’s proposals were the lowest received by the Government. After stating that, expressed in money, proposal B is the better by $235,-184.40, and by the possible saving by performance for less than the estimated cost of construction, it said: “ It is evident from our conversation of April 18 that your interpretation of preferential right was to the effect that the . . . Transport Co. desired the right to lease certain specified land in naval petroleum reserve No. 1 as well as preferential right to lease other land in naval petroleum reserve No. 1 to the extent described in Article XI of contract. It is also my understanding from your, conversation that unless the . . . Transport Co. could get a lease to certain lands, your company would not desire to enter into a contract under the terms outlined in proposal (B) and preferred the government would accept proposal (A).” The letter then stated that the Department favored proposal B and reiterated its stated advantages over the other proposal. Then it said: “ In order that the Government may take advantage of a contract embodying the terms outlined in proposal (B), I wish to advise you that PAN AMERICAN CO. v. UNITED STATES. 497 456 Opinion of the Court. the Department of the Interior will agree to grant to the . . . Transport Co. within one year from the date of the delivery of a contract relative to the Pearl Harbor project leases to drill the following tracts of land.” The letter specified the quarter section covered by the lease of June 5, 1922, and an additional strip, and stated that the royalties to be required would not be greater than specified rates ranging from 12% to 35 per cent. The preferential right was inserted to prevent competition. The assurance that additional leases would be given was not necessary or required under proposal B. After the making of the contract of April 25, the posted field price of crude oil declined rapidly. In the autumn of 1922 the Transport Company and Doheny were in correspondence or consultation with Fall for the purpose of at once securing additional leases in Reserve No. 1. Doheny submitted a proposition to Fall which the latter delivered to his subordinates with his favorable recommendation. Later Doheny enlarged the proposition, and there followed negotiations concerning the proposed lease. Doheny and Fall agreed upon a schedule of royalties. The lease of December 11 was arranged without competition of any kind. Plans for the proposed construction work had not been prepared. Before the contract and lease were made Fall and others in his Department stated to persons making inquiries that it was not the intention to make leases or to drill in that Reserve. The danger of drainage had been eliminated by agreement between the United States and oil companies operating in the vicinity that no drilling should be done by either except on six months’ notice to the other. The District Court concluded that the contracts and leases were obtained by corruption and fraud. On their appeal, petitioners challenged practically all the findings of the trial court. The Circuit Court of Appeals, after 42847°—27----32 498 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. stating the issue and the substance of the facts found and conclusions reached below, said: “We find no ground for disturbing the findings of fact which we deem essential to the decision of the case, and while the evidence may be insufficient to support certain contested findings the disputed facts, in view of our conclusions upon the law applicable to the case, become of little importance.” The petitioners here argue that the Secretary of the Navy did in fact exert the authority conferred by the Act of June 4, 1920, and that Fall did not dominate the making of the contracts and leases; that it was not proved by any evidence competent or admissible against the companies that Doheny gave Fall $100,000; that the giving of the money did not affect the transaction; that it was a loan and not a bribe, and that the record does not sustain the conclusion of the District Court. We have considered the evidence, and we are satisfied that the findings as to the matters of fact here controverted are fully sustained, except the statement that Denby signed the contracts and leases under misapprehension and without full knowledge of the contents of the documents. As to that the record requires an opposite finding. Under the Act of June 4, 1920, it was his official duty to administer the oil reserves; he was not called as a witness, and it is not to be assumed that he was without knowledge of the disposition to be made of them or of the means employed to get storage facilities and fuel oil for the Navy. He is presumed to have had knowledge of what he signed; there are direct evidence and proven circumstances to show that he had. But the evidence sustains the finding that he took no active part in the negotiations, and that Fall, acting collusively with Doheny, dominated the making of the contracts and leases. The finding that Doheny caused the $100,000 to be given to Fall is adequately sustained by the evidence. PAN AMERICAN CO. v. UNITED STATES. 499 456 Opinion of the Court. Early in 1924, during the investigation of these contracts and leases by the Senate Committee, Doheny voluntarily appeared as witness and there gave testimony for the purpose of explaining the money transaction between him and Fall at the time the initial contract was being negotiated. At the trial of this case, over objections of the companies, his statements before the committee were received in evidence. Petitioners insist that they were not admissible. But Doheny acted for both companies when the contracts and leases were negotiated. He controlled the voting power of one that owned all the shares of the other. He was President of the Petroleum Company up to July 24, 1922, and then became Chairman of its board. He was President of the Transport Company until December 7, 1923, when he became Chairman of its board. He was Chairman of both when he testified. There is no evidence that his control over or authority to act for these companies was less in 1924, when he appeared for them before the committee, than it was in 1921 and 1922, when he negotiated and executed the contracts and leases. The companies were much concerned as to the investigation lest it might result in an effort to set aside the transaction. The hearing before the committee was an occasion where it was proper for them to be represented. Doheny had acted for them from the inception of the venture. The facts and circumstances disclosed by the record justified the lower courts in holding that, when he testified before the committee, he was acting for the companies within the scope of his authority. His statements on that occasion are properly to be taken as theirs, and are admissible in evidence against them. Chicago v. Greer, 9 Wall. 726, 732; Xenia Bank v. Stewart, 114 U. S. 224, 229; Fidelity & Deposit Co. v. Courtney, 186 U. S. 342, 349, 351; Aetna Indemnity Co. v. AutoTraction Co., 147 Fed. 95, 98; Joslyn v. Cadillac Co., 500 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. 177 Fed. 863, 865; Chicago, Burlington & Quincy R. R. Co. v. Coleman, 18 Ill. 297, 298. The facts and circumstances disclosed by the record show clearly that the interest and influence of Fall as well as his official action were corruptly secured by Doheny for the making of the contracts and leases; that, after the executive order of May 31, 1921, Fall dominated the administration of the Naval Reserves, and that the consummation of the transaction was brought about by means of collusion and corrupt conspiracy between him and Doheny. Their purpose was to get for petitioners oil and gas leases covering all the unleased lands in the Reserve. The making of the contracts was a means to that end. The whole transaction was tainted with corruption. It was not necessary to show that the money transaction between Doheny and Fall constituted bribery as defined in the Criminal Code or that Fall was financially interested in the transaction or that the United States suffered or was liable to suffer any financial loss or disadvantage as a result of the contracts and leases. It is enough that these companies sought and corruptly obtained Fall’s dominating influence in furtherance of the venture. It is clear that, at the instance of Doheny, Fall so favored the making of these contracts and leases that it was impossible for him loyally or faithfully to serve the interests of the United States. The lower courts for that reason rightly held the United States entitled to have them adjudged illegal and void. Crocker v. United States, 240 U. S. 74, 80, 81; Garman n. United States, 34 Ct. Cis. 237, 242; Herman v. City of Oconto, 100 Wis. 391, 399; Harrington v. Victoria Graving Dock Co., L. R. 3 Q. B. D. 549; Tool Company n. Norris, 2 Wall. 45, 54, 56; Trist v. Child, 21 Wall. 441, 448, 452; Meguire v. Cor wine, 101 U. S. 108, 111; Oscanyan v. Arms Co., 103 U. S. 261, 275; Washington Irr. Co. v. Krutz, 119 Fed. 279, 286. PAN AMERICAN CO. v. UNITED STATES. 501 456 Opinion of the Court. The transaction evidenced by the contracts and leases was not authorized by the Act of June 4, 1920. The grant of authority to the Secretary of the Navy did not indicate a change of policy as to conservation of the reserves. The Act of June 25, 1910, the Act of February 25, 1920, the executive orders, and the Joint Resolution of February 8, 1924, show that it has been and is the policy of the United States to maintain a great naval petroleum reserve in the ground. While the possibility of loss by drainage might be a reason for legislation enabling the Secretary to take any appropriate action that at any time might become necessary to save the petroleum, it is certain that the contracts and leases have no such purpose. The work to be paid for in crude products contemplated the construction of fuel depots. The one covered by the first contract was a complete unit sufficient for 1,500,000 barrels including pumping stations, fire protection and its own wharf and channel. It is not necessary to consider the possible extent of the construction that might be required under the later contract. Indeed it could not then be known how much work and products in storage it would take to exhaust the reserve. The record shows that the Navy Department estimated the cost of proposed storage plants and contents at approximately $103,000,000. Congress has not authorized any such program. The Department tried and failed to secure additional appropriations for the Pearl Harbor storage facilities. The Act of August 31,1842, 5 Stat. 577 (R. S. § 1552), gave the Secretary authority to construct fuel depots. But it was taken away by the Act of March 4, 1913, 37 Stat. 898. Since that time Congress has made separate appropriations for fuel stations at places specifically named.1 And it has 1 March 4, 1913, c. 148, 37 Stat. 891, 898; June 30, 1914, c. 130, 38 Stat. 392, 401; March 3, 1915, c. 83, 38 Stat. 928, 937; August 29, 1916, c. 417, 39 Stat. 556, 570; March 4, 1917, c. 180, 39 Stat. 1168, 502 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. long been its policy to prohibit the making of contracts of purchase or for construction work in the absence of express authority and adequate appropriations therefor. R. S. §§ 3732,3733; Act of June 12,1906,34 Stat. 255; Act of June 30, 1906, 34 Stat. 764. The Secretary was not authorized to use money received from the sale of gas products. All such sums are required to be paid into the Treasury. R. S. §§ 3617, 3618, as amended, 19 Stat. 249. The words granting authority to the Secretary are “ use, store, exchange, or sell ” the oil and gas products. As the Secretary, among other things, was authorized until July 1, 1922, to use money out of the appropriation to “ store ” oil and gas products from these lands, it will not be held, in the absence of language clearly requiring it, that he was also empowered without limit to use crude oil to pay for additional storage facilities. Unless given him by “ exchange ” the Secretary had no power by such contracts to locate or construct fuel depots. It is not contended that the clause confers unlimited authority, and the petitioners say that the word “ exchange ” must have some reasonable limitation. But they insist that it is broad enough to authorize the contracts. If it is, there is no reason why crude oil may not be used to pay for any kind of construction work or to purchase any property that may be desired by the Department for the use of the Navy. The purpose and scope of the provision are limited to the administration of the reserves. The clause is found in a proviso to an appropriation for an investigation of fuel adapted to naval requirements and the availability of the supply in the naval reserves. If “ exchange ” has 1179; June 15, 1917, c. 29, 40 Stat. 182, 207; July 1, 1918, c. 114, 40 Stat. 704, 726; November 4, 1918, c. 201, 40 Stat. 1020, 1034; July 11, 1919, c. 9, 41 Stat. 131, 145; June 5, 1920, c. 253, 41 Stat. 1015, 1030; July 12, 1921, c. 44, 42 Stat. 122, 130. PAN AMERICAN CO. v. UNITED STATES. 503 456 Opinion of the Court. the meaning contended for by petitioners, it must be taken to indicate that Congress intended by the clause in question not only to restore to the Secretary authority in respect of fuel depots that had been taken from him by the Act of March 4, 1913, but also to enable him by means of contracts and leases such as these to reverse, if he saw fit, the established policy of the Government as to the petroleum reserves. The circumstances of the enactment as well as the terms of the provision indicate a purpose to authorize exchange of crude petroleum from these reserves for fuel oil and other petroleum products suitable for use by the Navy. The Secretary was not authorized to refine the crude product. A draft of the Act included that authority, but the word “ refine ” was stricken out. This made necessary the exchange of the crude product for fuel oil and other products suitable for use. Whatever the meaning rightly to be attributed to the words employed, it is clear that they stop short of authorizing the Secretary to pay for improvements such as were covered by the contracts. The petitioners insist that, in any event, they are entitled to credit for the cost of construction work performed and of the fuel oil furnished at Pearl Harbor, and also for the amount they expended to drill and operate oil wells and to make other improvements on the leased lands. The substance of the-account, as stated in the decree of the District Court, is printed in the margin.2 The 2 A. Transport Company is debited: 1. All royalty oil, etc., delivered under contracts of April 25, 1922, and December 11, 1922, to May 31,1925..................................... $7,889,759.21 2. Profit on their resale........................... 791,012.03 3. Interest on #1 .................................. 684,625.55 4. Interest on #2 ................................... 94,351.36 Total.................................... $9,459,748.15 504 OCTOBER TERM, 1026. Opinion of the Court. 273 U. S. findings show that the storage facilities at Pearl Harbor covered by the contracts were' economically completed on the lands of the United States under the direction of the companies and the supervision of officers of the Navy; that they are of benefit to the United States and are now available for use and should be retained by it; that the B. Transport Company is credited: 1. Actual cost of storage facilities at Pearl Harbor, under contracts of April 25, 1922, and December 11,1922.......................................... $7,350,814.11 2. Interest on #1 .................................. 820,922.43 3. Cost of fuel oil delivered to tanks............ 1,986,142.47 4. Interest on #3 ............................... 259,569.11 Total.....................................$10,417,448.12 Balance due Transport Company.. $957,699.97 C. Petroleum Company is debited: 1. Value of petroleum products taken under leases of June 5, 1922, and December 11, 1922 (other than those included in the account of the Transport Co.) ....................................... $1,556,861.17 2. Interest on #1 .................................. 170,650.02 Total..................................... $1,727,511719 D. Petroleum Company is credited: 1. Actual cost of drilling, putting on production, maintaining and operating wells, and other useful improvements to property under leases.... $1,013,428.75 2. Actual cost of constructing, maintaining and operating compressor and absorption plant less value of use for products of other lands and less gasoline manufactured and sold from gas produced from lands in controversy................... 194,991.01 3. Interest on #1 and #2........................... 161,060.43 Total...................................... $1,369750719 Balance due United States..... $358,031.00 Note: Interest is at the rate of 7% and is calculated on monthly balances to May 31, 1925. PAN AMERICAN CO. v. UNITED STATES. 505 456 Opinion of the Court. Transport Company delivered into the storage constructed a specified quantity of fuel oil of value to the United States equal to what it cost the company; that under the supervision of Government officials the Petroleum Company economically expended money for development of the leased lands to produce oil, gas and gasoline and to make thereon permanent improvements that resulted in benefit to the United States equal to the amount expended. They maintain that, as a condition of granting the United States the relief it claims, equity requires it to give credit to them for their expenditures; that if this be denied, they will be required to pay double the value of the royalty oil they have received, and that the United States thereby will be unjustly enriched; that, except the balance shown by the account, they have paid in full for such oil; that the United States has fully paid for the benefits it received from petitioner’s expenditures, and that, in effect, it now seeks to recover the payments it made voluntarily. And they insist that the United States must be made to bear these amounts even if the contracts were made without authority of law or were tainted with fraud, violation of public policy, conspiracy or other wrongful act. In suits brought by individuals for rescission of contracts the maxim that he who seeks equity must do equity is generally applied, so that the party against whom relief is sought shall be remitted to the position he occupied before the transaction complained of. “ The court proceeds on the principle, that, as the transaction ought never to have taken place, the parties are to be placed as far as possible in the situation in which they would have stood if there had never been any such transaction.” Neblett v. Mac Jarland, 92 U. S. 101, 103. And, while the perpetrator of the fraud has no standing to rescind, he is not regarded as an outlaw; and, if the trans- 506 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. action is rescinded by one who has the right to do so, “ the courts will endeavor to do substantial justice so far as is consistent with adherence to law.” Stoffela v. Nugent, 217 U. S. 499, 501. The general principles of equity are applicable in a suit by the United States to secure the cancelation of a conveyance or the rescission of a contract. United States v. Detroit Lumber Co., 200 U. S. 321, 339; United States v. Stinson, 197 U. S. 200, 204; State of Iowa v. Carr, 191 Fed. 257, 266; cf. Mason v. United States, 260 U. S. 545, 557, et seq. But they will not be applied to frustrate the purpose of its laws or to thwart public policy. Causey v. United States, 240 U. S. 399, was a suit in equity brought by the United States to recover title to public lands conveyed to defendant under the homestead laws. The patent was obtained by fraud. The defendant paid the United States for the land in scrip at the rate of $1.25 per acre. The complaint did not contain an offer to return the scrip, and it was insisted by the defendant that, because of such failure, the suit could not be maintained. The court said (p. 402): “ This objection assumes that the suit is upon the same plane as if brought by an individual vendor to annul a sale of land fraudently induced. But, as this court has said, the Government in disposing of its public lands does not assume the attitude of a mere seller of real estate at its market value. These lands are held in trust for all the people, and in providing for their disposal Congress has sought to advance the interests of the whole country by opening them to entry in comparatively small tracts under restrictions designed to accomplish their settlement, development and utilization. And when a suit is brought to annul a patent obtained in violation of these restrictions, the purpose is not merely to regain the title but also to enforce a public statute and maintain the policy underlying it. Such a suit is not within the reason of the PAN AMERICAN CO. v. UNITED STATES. 507 456 Opinion of the Court. ordinary rule that a vendor suing to annul a sale fraudulently induced must offer and be ready to return the consideration received. That rule, if applied, would tend to frustrate the policy of the public land laws; and so it is held that the wrongdoer must restore the title unlawfully obtained and abide the judgment of Congress as to whether the consideration paid shall be refunded.” Heckman v. United States, 224 U. S. 413, was a suit by the United States to cancel conveyances of allotted lands made by members of the Cherokee Nation and to have the title decreed to be in the allottees and their heirs, upon the ground that the conveyances were made in violation of restrictions upon the power of alienation. On demurrer to the complaint it was insisted that the allottees had received considerations for the conveyances and should be made parties to the suit in order that equitable restoration might be enforced. The court said (p. 446): “ Where, however, conveyance has been made in violation of the restrictions, it is plain that the return of the consideration cannot be regarded as an essential prerequisite to a decree of cancellation. Otherwise, if the Indian grantor had squandered the money, he would lose the land which Congress intended he should hold, and the very incompetence and thriftlessness which were the occasion of the measures for his protection would render them of no avail. The effectiveness of the acts of Congress is not thus to be destroyed. The restrictions were set forth in public laws, and were matters of general knowledge. Those who dealt with the Indians contrary to these provisions are not entitled to insist that they should keep the land if the purchase price is not repaid, and thus frustrate the policy of the statute.” United States v. Trinidad Coal Co., 137 U. S. 160, was a suit brought by the United States to set aside patents conveying certain coal lands on the ground that they were obtained by fraud and in violation of R. S. §§ 2347, 508 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. 2348, 2350. The company, in furtherance of a fraudulent scheme to get the lands, furnished the money that was paid to the United States by the fraudulent patentees who conveyed the lands to the company. The complaint did not contain an offer by the United States to return the money. The company contended that the United States was subject to the rules that apply to individuals and that relief should be conditioned upon return of the money. The court held that the rule should not be applied in a case like that one. It laid down and applied the principles on which rest the decisions in Causey n. United States, supra, and Heckman v. United States, supra. Among other things, the court said (p. 170): “ If the defendant is entitled, upon a cancellation of the patents fraudulently and illegally obtained from the United States, in the name of others, for its benefit, to a return of the moneys furnished to its agents in order to procure such patents, we must assume that Congress will make an appropriation for that purpose, when it becomes necessary to do so. The proposition that the defendant, having violated a public statute in obtaining public lands that were dedicated to other purposes, cannot be required to surrender them until it has been reimbursed the amount expended by it in procuring the legal title, is not within the reason of the ordinary rule that one who seeks equity must do equity; and, if sustained, would interfere with the prompt and efficient administration of the public domain. Let the wrongdoer first restore what it confesses to have obtained from the government by means of a fradulent scheme formed by its officers, stockholders and employes in violation of law.” It was the purpose of those making the contracts and leases to circumvent the laws and defeat the policy of the United States established for the conservation of the naval petroleum reserves. The purpose of the representatives of the Department was to get for the Navy fuel PAN AMERICAN CO. v. UNITED STATES. 509 456 Opinion of the Court. depots or storage facilities that had not been authorized by Congress. The leases were made to obtain the crude products for use as a substitute for money to make good the amounts advanced by petitioners to pay for such improvements. The Secretary’s authority to provide facilities in which to “ store ” naval reserve petroleum or its products did not extend beyond those that might be provided by use of the money made available by the Act of June 4,1920. And, in order to get control of the oil lands covered by the leases, the companies agreed to pay for these unauthorized works of construction and to furnish fuel oil and other products of petroleum suitable for naval use to fill the storage facilities so added. The contracts and leases and all that was done under them are so interwoven that they constitute a single transaction not authorized by law and consummated by conspiracy, corruption and fraud. The United States does not stand on the same footing as an individual in a suit to annul a deed or lease obtained from him by fraud. Its position is not that of a mere seller or lessor of land. The financial element in the transaction is not the sole or principal thing involved. This suit was brought to vindicate the policy of the Government, to preserve the integrity of the petroleum reserves and to devote them to the purposes for which they were created. The petitioners stand as wrongdoers, and no equity arises in their favor to prevent granting the relief sought by the United States. They may not insist on payment of the cost to them or the value to the Government of the improvements made or fuel oil furnished as all were done without authority and as means to circumvent the law and wrongfully to obtain the leases in question. As Congress had not authorized them, it must be assumed that the United States did not want the improvements made or was not ready to bear the cost of making them. No storage of fuel oil at Pearl Harbor was authorized to be made in excess of the 510 OCTOBER TERM, 1926. Syllabus. 273 U.S. capacity of, or in any places other than, the facilities provided for that purpose pursuant to authorization by Congress. Whatever their usefulness or value, it is not for the courts to decide whether any of these things are needed or should be retained or used by the United States. Such questions are for the determination of Congress. It would be unjust to require the United States to account for them until Congress acts; and petitioners must abide its judgment in respect of the compensation, if any, to be made. And this applies to the claim on account of the fuel oil as well as to the other items. Clearly petitioners are in no better position than they would be if they had paid money to the United States, instead of putting the fuel oil in storage. Equity does not condition the relief here sought by the United States upon a return of the consideration. United States v. Trinidad Coal Co., supra; Heckman v. United States, supra; Causey v. United States, supra. Decree affirmed. Mr. Justice Stone took no part in the consideration or decision of this case. TUMEY v. OHIO. ERROR TO THE SUPREME COURT OF OHIO. No. 527. Argued November 29, 30, 1926.—Decided March 7, 1927. 1. To subject a defendant to trial in a criminal case involving his liberty or property before a judge having a direct, personal, substantial interest in convicting him is a denial of due process of law. P. 522. 2. A system by which an inferior judge is paid for his service only when he convicts the defendant, has not become so customary in the common law or in this country that it can be regarded as due process where the costs usually imposed are not so small as to be within the maxim de minimis non curat lex. Pp. 523, 531. 511 TUMEY v. OHIO. Argument for Plaintiff in Error. 510 3. Under statutes of Ohio, offenses against state prohibition, involving a wide range of fines enforcible by imprisonment, may be tried without a jury, before the mayor of any rural village situate in the county (however populous) in which offenses occur; his judgment upon the facts is final and conclusive unless so clearly unsupported as to indicate mistake, bias, or wilful disregard of duty; the fines are divided between the State and village; the village by means' of the fines collected hires attorneys and detectives to arrest alleged offenders anywhere in the county and prosecute them before the mayor; in addition to his salary, the mayor, when he convicts, but not otherwise, receives his fees and costs amounting to a substantial income; the fines offer a means of adding materially to the financial prosperity of the village, for which the mayor, in his executive capacity, is responsible. Held violative of the Fourteenth Amendment. Pp. 520, 531. 115 Oh. St. 701, reversed. Error to a judgment of the Supreme Court of Ohio, which declined to review a judgment of the State Court of Appeals, 22 Oh. L. Rep. 634, reversing a judgment of the Court of Common Pleas of Hamilton County, 25 Oh. Nisi Prius (N. S.) 580, which reversed a judgment of the Mayor of the Village of North College Hill convicting and fining Tumey for violation of the Ohio Prohibition Act and ordering that he be imprisoned until the fine and costs were paid. Messrs. Edward P. Moulinier and James L. Magrish, pro hoc vice, with whom Mr. Harry H. Shafer was on the brief, for plaintiff in error. When a state deprives a person of liberty or property through a hearing held under statutes and circumstances which necessarily interfere with the course of justice, it deprives him of liberty and property without due process of law. Moore v. Dempsey, 261 U. S. 86; Frank v. Mangum, 237 U. S. 309. A financial interest of a court in its decision constitutes that court an unfair and partial tribunal within the prohibition of the Fourteenth Amendment. Grand Stahl v. Supervisors, 187 Iowa 1342; Re Ryers, 72 N. Y. 1; Case v. Hoffmann, 100 Wis. 314; Commrs. v. Smith, 233 Ill. 512 OCTOBER TERM, 1926. Argument for Plaintiff in Error. 273 U.S. 417; Meyers v. Shields, 61 Fed. 713; Cooley, Const. Lim., p. 356. The mayor who tried this case was personally, financially interested in his decision, for under the Ohio law the mayor can receive no fee unless he finds the defendant guilty. Op. Atty. Gen. (Ohio), 1915, p. 148. When the question is merely whether the cost should be paid by the plaintiff or defendant, it is held that the judge is not disqualified because of financial interest. Under the Ohio law, however, since the mayors of the villages, sitting as courts of justice, do not receive any fees unless they convict, an entirely different situation is created. Distinguishing, Probasco v. Raine, 50 Oh. St. 378. Cf. Meyers v. Shields, 61 Fed. 713. Aside from the personal financial interest of the mayor, thé record is clear that the mayor was operating the court in order to make money for the village, of which he was executive head, and which was in bad financial condition. The greater the fine assessed by the court, the greater the amount of money which the village would receive. The mayor’s interest as an executive head, his operation of the court as a commercial venture to make money for the village, made his so-called court but a mask and a sham, in which there were the forms of judicial proceedings, but in fact no real judicial hearing. A trial before a tribunal financially interested in the result of its decision constitutes a denial of due process of law. Day v. Savadge, Hobart 87; London v. Wood, 12 Mod. 669 ; Land]ear v. Mayor, 4 La. 97. The following cases show various degrees of money and other interest which were held to disqualify: Pierson v. Atwood, 13 Mass. 324; Gregory v. Railroad, 4 Oh. St. 675; State v. Young, 31 Fla. 594; Nettleton’s Appeal, 28 Conn. 267; Dianes v. Canal, 3 H. L. 759; Moses v. Julian 45 N. H. 52; Stockwell v. Township, 22 Mich. 341 ; State v. Crane, 36 N. J. L. 394; Stuart v. Commonwealth, 91 Va. 152; 513 TUMEY v. OHIO. Argument for Defendant in Error; 510 Findley v._ Smith, 42 W. Va. 299; State v. Seattle, 19 Wash. 8; Ex parte Cornwell, 144 Ala. 497; Yazoo R. R. v. Kirk, 102 Miss. 41. Messrs. Wayne B. Wheeler and Edward B. Dunjord, with whom Messrs. D. W. Murphy and Charles M. Earhart were on the brief, for defendant in error. It is well settled that this court will not review the findings of a state court upon questions of fact. Pure Oil Co. v. Minnesota, 248 U. S. 158; Hedrick v. A. T. & S. F. R. R. Co., 167 U. S. 673; 63 L. R. A. 577. The state court opinion shows no federal question necessary to its decision. Sec. 237(a), Jud. Code, as amended February 13, 1925. Every step taken was authorized by legislative enactment. Imprisonment was not a part of the penalty and therefore the mayor had final jurisdiction and the defendant was not entitled to a jury trial. Work v. State, 2 Oh. St. 296; Inwood v. State, 42 Oh. St. 186; State v. Bor-ham, 72 Oh. St. 358; Hofirichter v. State, 102 Oh. St. 65; Stiess v. State, 103 Oh. St. 33; State v. Pape, 105 Oh. St. 515; Cochran v. Stale, 105 Oh. St. 541. Fees which the mayor and marshal of College Hill received belonged to them by virtue of the general statutes of the State applying to all state cases, liquor and otherwise. Nead v. Nolte, 111 Oh. St. 486. The mayor’s interest in costs, allowed by law upon conviction, did not disqualify him. His remuneration .was the same whether the maximum or minimum fine was imposed. The minimum fine was imposed in this case, which negatives the suggestion of a conspiracy to mulct the accused for the benefit of the prosecuting witnesses and attorney. Costs in criminal cases at common law were unknown. They were created by statute. That there was no provision for taxing costs in the event of acquittal, and that 42847°—27----33 514 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. the mayor could assess costs only upon conviction, except as he might require bond for costs from unofficial prosecutors, as provided in § 13499 of the General Code, did not per se disqualify him to try the offense. It is the almost universal rule that in the absence of specific legislation the State is not liable for costs. It is the general practice to provide for the assessment of trial fees in the event of conviction. That such costs are collectible only upon conviction does not constitute a denial of due process of law. Ex parte Guerrero, 69 Cal. 88; Bennett v. State, 4 Tex. App. 72; People n. Edmunds, 15 Barb. 529; Commonwealth v. Keenan, 97 Mass. 589; Wellmaker v. Terrell, 3 Ga. App. 791; Pace v. Hazelhurst, 9 Ga. App. 203; Longston v. Hazelhurst, id. 449. Legislation providing for the taxation of costs against the accused upon conviction is predicated upon the theory of making the violator bear the expense to which he has placed the State in securing his apprehension and punishment. The mayor’s interest as taxpayer in municipal revenue from state fines did not disqualify him. Ex parte Guerrero, supra; State v. Intoxicating Liquors, 54 Me. 564; State v. Craig, 80 Me. 85; Commonwealth v. Emery, 11 Cush. 406; Hanscarrib v. Russell, 11 Gray 373; State n. Batchelder, 6 Vt. 479; Colgate v. Hill, 20 Vt. 56. The courts cannot declare a policy different from that fixed by the legislature. Allen v. Smith, 84 Oh. St. 283; Vidal v. Girard’s Executors, 2 How. 128; Dewey n. United States, 178 U. S. 510. Mr. Chief Justice Taft delivered the opinion of the Court. The question in this case is whether certain statutes of Ohio, in providing for the trial by the mayor of a village of one accused of violating the Prohibition Act of the State, deprive the accused of due process of law and violate the Fourteenth Amendment to the Federal Constitu- 515 TUMEY v. OHIO. Opinion of the Court. 510 tion, because of the pecuniary and other interest which those statutes give the mayor in the result of the trial. Tumey, the plaintiff in error, hereafter to be called the defendant, was arrested and brought before Mayor Pugh, of the Village of North College Hill, charged with unlawfully possessing intoxicating liquor. He moved for his dismissal because, of the disqualification of the Mayor to try him, under the Fourteenth Amendment. The Mayor denied the motion, proceeded to the trial, convicted the defendant of unlawfully possessing intoxicating liquor within Hamilton County, as charged, fined him $100, and ordered that he be imprisoned until the fine and costs were paid. He obtained a bill of exceptions and carried the case on error to the Court of Common Pleas of Hamilton County. That court heard the case and reversed the judgment, on the ground that the Mayor was disqualified, as claimed. 25 Ohio Nisi Prius (n. s.) 580. The State sought review by the Court of . Appeals of the first appellate district of Ohio, which reversed the Common Pleas and affirmed the judgment of the Mayor. 23 Ohio Law Reporter, 634. On May 4, 1926, the State Supreme Court refused defendant’s application to require the Court of Appeals to certify its record in the case. The defendant then filed a petition in error in that court as of right, asking that the judgment of the Mayor’s Court and of the Appellate Court be reversed, on constitutional grounds. On May 11, 1926, the Supreme Court adjudged that the petition be dismissed for the reason that no debatable constitutional question was involved in the cause. The judgment was then brought here upon a writ of error allowed by the Chief Justice of the State Supreme Court, to which it was rightly directed. Matthews v. Huwe, Treasurer, 269 U. S. 262; Hetrick v. Village of Lindsey, 265 U. S. 384. This brings us to the merits of the case. 516 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. The defendant was arrested and charged with the unlawful possession of intoxicating liquor at White Oak, another village in Hamilton County, Ohio, on a warrant issued by the Mayor of North College Hill. The Mayor acted under the sections of the State Prohibition Act, and Ordinance No. 125 of the Village of North College Hill adopted in pursuance thereof. Section 6212-15 (Ohio General Code) provides that “No person shall after the passage of this act manufacture . . . possess . . . any intoxicating liquors ...” Section 6212-17 provides that “. . . any person who violates the provisions of this act (General Code, Sections 6212-13 to 6212-20) for a first offense shall be fined not less than one hundred dollars nor more than one thousand dollars; for a second offense he shall be fined not less than three hundred dollars nor more than two thousand dollars; for a third and each subsequent offense he shall be fined not less than five hundred dollars nor more than two thousand dollars and be imprisoned in the state penitentiary not less than one year nor more than five years. The Mayor has authority, which he exercised in this case, to order that the person sentenced to pay a fine shall remain in prison until the fine and costs are paid. At the time of this sentence, the prisoner received a credit of sixty cents a day for each day’s imprisonment. By a recent amendment, that credit has been increased to one dollar and a half a day. Sections 13716, 13717, Ohio Gen. Code. Section 6212-18 provides, in part, that “Any justice of the peace, mayor, municipal or police judge, probate or common pleas judge within the county with whom the affidavit is filed charging a violation of any of the provisions of this act (G. C. Sections 6212-13 to 6212-20) when the offense is alleged to have been committed in the county in which such mayor, justice of the peace, or judge 517 TUMEY v. OHIO. Opinion of the Court. 510 may be sitting, shall have final jurisdiction to try such cases upon such affidavits without a jury, unless imprisonment is a part of the penalty, but error may be prosecuted to the judgment of such mayor, justice of the peace, or judge as herein provided.” Error from the Mayor’s Court lies to the court of Common Pleas of the County, and a bill of exceptions is necessary. to present questions arising on the evidence. Sections 10359, 10361, Ohio General Code. The appellate review in respect of evidence is such that the judgment can only be set aside by the reviewing court on the ground that it is so clearly unsupported by the weight of the evidence as to indicate some misapprehension or mistake or bias on the part of the trial court, or a wilful disregard of duties. Datesh v. State, 23 Ohio Nisi Prius (n. s.) 273. Section 6212-19, provides that “ Money arising from fines and forfeited bonds shall be paid one-half into the state treasury credited to the general revenue fund, one-half to the treasury of the township, municipality or county where the prosecution is held, according as to whether the officer hearing the case is a township, municipal, or county officer.” Section 6212-37 provides that “ The council of any city or village may by ordinance, authorize the use of any part of the fines collected for the violation of any law prohibiting the manufacture and sale of intoxicating liquors, for the purpose of hiring attorneys, detectives, or secret service officers to secure the enforcement of such prohibition law. And such council are hereby authorized to appropriate not more than five hundred dollars annually from the general revenue funds, for the purpose of enforcing the law prohibiting .the manufacture and sale of intoxicating liquors, when there are no funds available from the fines collected for the violation of such prohibitory law.” Under the authority of the last section, the Village Council of North College Hill passed Ordinance No. 125, as follows: 518 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. “ An ordinance to provide for compensation to be paid from the secret service funds of the Village of North College Hill, Hamilton County, Ohio, created by authority of Section 6212-37, of the General Code of Ohio, to detectives, secret service officers, deputy marshals’ and attorneys’ fees, costs, etc., for services in securing evidence necessary to conviction and prosecuting violation of the law of the state of Ohio prohibiting the liquor traffic. . “ Be it ordained by the Council of the Village of North College Hill, Hamilton County, Ohio: “Section I. That fifty per cent of all moneys hereafter paid into the treasury of said village of North College Hill, Ohio, that is one-half of the share of all fines collected and paid into and belonging to said village of North College Hill, Ohio, received from fines collected under any law of the state of Ohio, prohibiting the liquor traffic, shall constitute a separate fund to be called the Secret Service Fund to be used for the purpose of securing the enforcement of any prohibition law. "Section II. That deputy marshals of the village of North College Hill, Ohio, shall receive as compensation for their services in securing the evidence necessary to secure the conviction of persons violating the law of the state of Ohio, prohibiting the liquor traffic, an amount of money equal to 15 per cent, of the fine collected, and other fees allowed by law. 11 Section III. That the attorney at law of record prosecuting persons charged with violating the law of the state of Ohio, prohibiting the liquor traffic, shall receive as compensation for legal services an amount equal to 10 per cent, of the fine collected, in all cases, whether the plea be guilty or not guilty. “ Section IV. That detectives and secret service officers shall receive as compensation for their services in securing the evidence necessary to secure the conviction of 519 TUMEY v. OHIO. Opinion of the Court. 510 persons violating the law of the state of Ohio, prohibiting the liquor traffic, an amount of money equal to 15 per cent, of the fine collected. “ Section V. That the mayor of the village of North College Hill, Ohio, shall receive or retain the amount of his costs in each case, in addition to his regular salary, as compensation for hearing such cases. “ Section VI. This ordinance is hereby declared to be an emergency ordinance, necessary to the immediate preservation of the public peace and safety, made necessary by reason of the flagrant violation of the laws of Ohio, enacted to prohibit traffic in intoxicating liquors, and shall be in effect from and after its passage.” The duties of the Mayor of a village in Ohio are primarily executive. Sections of the General Code of Ohio provide as follows: “ Section 4248. The executive power and authority of villages shall be vested in a mayor, clerk, treasurer, marshal, street commissioner, and such other officers and departments thereof as are created by law. “ Section 4255. . . . He (the Mayor) shall be the chief conservator of the peace within the corporation. . . . He shall be the president of the council, and shall preside at all regular and special meetings thereof, but shall have no vote except in case of a tie. “ Section 4258. . . . He shall see that all ordinances, by-laws and resolutions are faithfully obeyed and enforced. . . . “ Section 4259. The mayor shall communicate to council from time to time a statement of the finances of the municipality, and such other information relating thereto and to the general condition of affairs of the municipality as he deems proper or as may be required by council. “ Section 4262. The mayor shall supervise the conduct of all the officers of the corporation. . . 520 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. The fees which the Mayor and Marshal received in this case came to them by virtue of the general statutes of the state applying to all state cases, liquor and otherwise. The Mayor was entitled to hold the legal fees taxed in his favor. Ohio General Code, § 4270; State n. Nolte, 111 0. S. 486. Moreover, the North College Hill village council sought to remove all doubt on this point by providing (§5, Ord. 125, supra), that he should receive or retain the amount of his costs in each case, in addition to his regular salary, as compensation for hearing such cases. But no fees or costs in such cases are paid him except by the defendant if convicted. There is, therefore, no way by which the Mayor may be paid for his service as judge, if he does not convict those who are brought before him; nor is there any fund from which marshals, inspectors and detectives can be paid for their services in arresting and bringing to trial and furnishing the evidence to convict in such cases, except it be from the initial $500 which the village may vote from its treasury to set the court going, or from a fund created by the fines thereafter collected from convicted defendants. Byan Act of 1913 (103 O. L. 290), the Mayor’s court in villages in Hamilton County and in half a dozen other counties with large cities, was deprived of jurisdiction to hear and punish misdemeanors committed in the county beyond the limits of the corporation. The Prohibition Act, known as the Crabbe Act, adopted in 1920 (108 O. L., Pt. 1, 388 and Pt. 2, 1182) changed this, and gave to the Mayor of every village in the State jurisdiction within the county in which it was situate to try violations of that Act. Counsel for the State in their brief explain the vesting by state legislatures of this country of jurisdiction in village courts as follows: “The purpose of extending the jurisdiction in the first instance was to break up places of outlawry that were located on the municipal boundary just outside of the city. The Legislature also 521 TUMEY v. OHIO. Opinion of the Court. 510 faced the situation that in some of the cities the law enforcement agencies were failing to perform their duty, and, therefore, in order that those forces that believe in enforcement and upholding of law might have some courts through which process could be had, it gave to mayors county-wide jurisdiction.” It was further pointed out in argument that the system by which the fines to be collected were to be divided between the State and the village was for the proper purpose of stimulating the activities of the village officers to such due enforcement. The Village of North College Hill in Hamilton County, Ohio, is shown by the federal census to have a population of 1104. That of Hamilton County, including the City of Cincinnati, is more than half a million. The evidence discloses that Mayor Pugh came to office after ordinance No. 125 was adopted, and that there was a division of public sentiment in the village as to whether the ordinance should continue in effect. A petition opposing it and signed by a majority of the voters was presented to Mayor Pugh. To this the Mayor answered with the declaration that, if the village was in need of finances, he was in favor of and would carry on “the Liquor Court,” as it was popularly called, but that if the court was not needed for village financial reasons, he would not do so. It appears that substantial sums were expended out of the village treasury, from the fund made up of the fines thus collected, for village improvements and repairs. The Mayor was the owner of a house in the village. Between May 11,1923 and December 31,1923, the total amount of fines for violation of the prohibition law, collected by this village court, was upwards of $20,000, from which the State received $8,992.50, North College Hill received $4,471.25 for its general uses, $2,697.25 was placed to the credit of the village safety fund, and the balance was put in the secret service fund. Out of this, the person acting as prosecutor in the liquor court re- 522 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. ceived in that period $1,796.50; the deputy marshals, inspectors and other employees, including the detectives, received $2,697.75, and $438.50 was paid for costs in transporting prisoners, serving writs and other services in connection with the trial of these cases. Mayor Pugh received $696.35 from these liquor cases during that period, as his fees and costs, in addition to his regular salary. That officers acting in a judicial or quasi-judicial capacity are disqualified by their interest in the controversy to be decided is, of course, the general rule. Dimes v. Grand Junction Canal, 3 H. L. C. 759; Gregory v. Railroad, 4 0. S. 675; Peace v. Atwood, 13 Mass. 324; Taylor v. Commissioners, 105 Mass. 225; Kentish Artilleryv. Gardiner, 15 R. I. 296; Moses v. Julian, 45 N. H. 52; State v. Crane, 36 N. J. L. 394; Railroad Company v. Howard, 20 Mich. 18; Stockwell v. Township, 22 Mich. 341; Findley v. Smith, 42 W. Va. 299; Nettleton’s Appeal, 28 Conn. 268; Cooley’s Constitutional Limitations, 7th ed., p. 592, et seq. Nice questions, however, often arise as to what the degree or nature of the interest must be. One is in respect of the effect of the membership of a judge in a class of taxpayers or others to be affected by a principle of law, statutory or constitutional, to be applied in a case between other parties and in which the judge has no other interest. Then the circumstance that there is no judge not equally disqualified to act in such a case has been held to affect the question. Wheeling v. Black, 25 W. Va. 266, 280; Peck v. Freeholders of Essex, 20 N. J. L. 457; Dimes v. Grand Junction Canal, 3 H. L. C. 759 (see Baron Parke’s Answer for the Judges, pp. 785, 787); Year Book, 8 Henry 6, 19, s. c. 2 Roll. Abridg. 93; Evans v. Gore, 253 U. S. 245, 247; Stuart v. Mechanics’ & Farmers’ Bank, 19 Johns. 496; Ranger v. Railroad, 5 H. L. C. 72. We are not embarrassed by such considerations here, for there were available in this case other judicial officers who had 523 TUMEY v. OHIO. Opinion of the Court. 510 no disqualification either by reason of the character of their compensation or their relation to the village government. All questions of judicial qualification may not involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion. Wheeling v. Black, 25 W. Va. 266, 270. But it certainly violates the Fourteenth Amendment, and deprives a defendant in a criminal case of due process of law, to subject his liberty or property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case. The Mayor of the Village of North College Hill, Ohio, had a direct, personal, pecuniary interest in convicting the defendant who came before him for trial, in the twelve dollars of costs imposed in his behalf, which he would not have received if the defendant had been acquitted. This was not exceptional, but was the result of the normal operation of the law and the ordinance. Counsel for the State do not deny this, but assert the validity of the practice as an exception to the general rule. They rely upon the cases of Ownbey v. Morgan, 256 U. S. 94; Murray’s Lessee v. Hoboken Land and Improvement Company, 18 How. 272, 276-280. These cases show that, in determining what due process of law is, under the Fifth or Fourteenth Amendment, the Court must look to those settled usages and modes of proceeding existing in the common and statute law of England before the emigration of our ancestors, which were shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. Counsel contend that in Ohio and in other States, in the economy which it is found necessary to maintain in the administration of justice in the inferior courts by justices of the peace and by judicial officers of like jurisdiction, the only compensation which the State and county 524 OCTOBER TERM, 1926. Opinion of the Court. 273 U. 8. and township can afford is the fees and costs earned by them, and that such compensation is so small that it is not to be regarded as likely to influence improperly a judicial officer in the discharge of his duty, or as prejudicing the defendant in securing justice, even though the magistrate will receive nothing if the defendant is not convicted. We have been referred to no cases at common law in England prior to the separation of colonies from the mother country showing a practice that inferior judicial officers were dependent upon the conviction of the defendant for receiving their compensation. Indeed, in analogous cases it is very clear that the slightest pecuniary interest of any officer, judicial or quasi-judicial, in the resolving of the subject matter which he was to decide, rendered the decision voidable. Bonham’s Case, 8 Coke, 118a; s. c. 2 Brownlow and Goldesborough’s Rep. 255; City of London v. Wood, 12 Modern Rep. 669, 687; Day v. Savage, Hobart 85, 87; Hesketh v. Braddock, 3 Burrows 1847, 1856, 1857 and 1858. As early as the 12th Richard II, A. D. 1388, it was provided that there should be a commission of the justices of the peace, with six justices in the county once a quarter, which might sit for three days, and that the justices should receive four shillings a day “ as wages,” to be paid by the sheriffs out of a fund made up of fines and amercements, and that that fund should be added to out of the fines and amercements from the courts of the Lords of the Franchises, which were hundred courts allowed by the King by grant to individuals. It was required that the justices of the peace should be knights, esquires or gentlemen of the land,—qualifications that were not modified until 1906. The wages paid were used “ to defray their common diet,” and soon became obsolete. 1 Holdsworth’s History of English Law, 288, 289. The wages paid were not dependent on con- 525 TUMEY v. OHIO. Opinion of the Court. 510 viction of the defendant. They were paid at a time when ¿he distinction between torts and criminal cases was not clear, Holdsworth, Vol. 2, 363, 365; Vol. 3, 328; and they came from a fund which was created by fines and amercements collected from both sides in the controversy. There was always a plaintiff, whether in the action for a tort or the prosecution for an offense. In the latter he was called the prosecutor. If he failed to prove his case, whether civil or criminal, he was subject to amercement pro falso clamore, while if he succeeded, the defendant was in misericordia. See Comm. v. Johnson, 5 S. & R. (Pa.) 195, 198; Musser v. Good, 11 Id. 247. Thus in the outcome someone would be amerced in every case, and the amercements generally went to the Crown, and the fund was considerable. The Statute of Richard II remained on the statute book until 1855, when it was repealed by the 18th and 19th Victoria. Meantime thediundred courts by franchise had largely disappeared. The wages referred to were not part of the costs. The costs at common law were the amounts paid either by the plaintiff or prosecutor or by the defendant for the witnesses or services of the court officers. ' Bum’s Justice, Vol. 1, p. 628. Chitty’s Criminal Law, 4 ed. 1841, Vol. 1, 829. See also 14 George HI, ch. 20,1774. For hundreds of years the justices of the peace of England seem not to have received compensation for court work. Instead of that, they were required, upon entering upon the office, to pay certain fees. Holdsworth, Vol. 1, p. 289; 19 Halsbury’s Laws of England, § 1152. Local judges in towns are paid salaries. There was at the common law the greatest sensitiveness over the existence of any pecuniary interest, however small or infinitesimal, in the justices of the peace. In Hawkins, 2 Pleas of the Crown, we find the following: “ The general rule of law certainly is that justices of the peace ought not to execute their office in their own case [citing 1 Salk. 396]; and even in cases where such 526 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. proceeding seems indispensably necessary, as in being publicly assaulted or personally abused, or their authority otherwise contemned while in the execution of their duty, yet if another justice be present, his assistance should be required to punish the offender (Stra. 240). “And by the common law, if an order of removal were made by two justices, and one of them was an inhabitant of the parish from which the pauper was removed, such order was illegal and bad, on the ground that the justice who was an inhabitant was interested, as being liable to the poor’s rate. (Rex. v. Great Chart, Burr. S. C. 194, Stra. 1173.)” And this strict principle, unless there is relief by the statute, is seen in modem cases. Queen v. The Recorder of Cambridge, 8 Ellis & Blackbum, 637; Regina v. Hammond, 9 Law Times Reports (n. s.) 423; The Queen n. Rand, Law Reports, 1st Queen’s Bench, 230; Queen v. Gaisford, 1st Queen’s Bench Division, 381; 19 Halsbury’s Laws of England 1156. There was, then, no usage at common law by which justices of the peace or inferior judicial officers were paid fees on condition that they convicted the defendants, and such a practice certainly can not find support as due process of law in English precedent. It may be that the principle, as stated in Blackstone, Book 3rd, page 400, that the King shall neither pay nor receive costs, because it is the King’s prerogative not to pay them to a subject and is beneath his dignity to receive them, was misunderstood and led, as suggested by Mr. Lewis in his edition of Blackstone, Vol. 3, p. 400, n. 60, to the practice in some States, in minor cases, of allowing inferior judges no compensation except by fees collected of the convicted defendant ; but whether it did or not, the principle relied on did not support the practice. That practice has prevailed, and still prevails, in Arkansas, Kentucky, Nebraska, North Carolina, Georgia, Ohio and Texas, and it seems TUMEY v. OHIO. 527 510 Opinion of the Court. at one time to have obtained in Indiana, Oregon, Illinois and Alabama. In two of these States only has the question been considered by their courts, and it has been held that provision for payment to the judge of fees, only in case of conviction, does not disqualify him. Those are Bennett v. State, 4 Tex. App. 72; Wellmaker v. Terrell, 3 Ga. App. 791. There is no discussion in either of the question of due process of law. The existence of a statute authorizing the practice seems to have been the controlling consideration. Two other cases are cited. In Ex parte Guerrero, 69 Cal. 88, the judge was paid a regular salary, fixed by law. The fund out of which this was paid was increased by fees and fines collected in his court, but there is no evidence that payment of his salary was dependent on the amount of his collections or convictions. In Herbert v. Baltimore County, 97 Md. 639, the action was by a justice of the peace against a county for services in criminal cases. A new law limited him to $10 a month. The statement of the case does not distinctly show that in convictions he would have had a larger compensation from his costs collected out of the defendant, but this may be assumed from the argument. His contention was that the new law was invalid because it did not give the defendants before him due process. The court held against him, chiefly on the ground that he must be satisfied with the compensation the law afforded him. Responding to his argument that the new law was invalid because justices would be induced to convict when in justice they should acquit, the court said: “We can not recognize the force of this suggestion, founded as it is upon the assumption that the justices will violate their oaths and the duties of their office and not upon anything that the law authorizes to be done.” So far as the case goes, it is an authority for the contention of the State, but the issue thus raised was not 528 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. considered at length and was not one which in such an action the court would be patient to hear pressed by the justice whose constitutional rights were not affected. Tyler v. Court, 179 U. S. 405, 409; California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306, 318. In the case of Probasco v. Raine, Auditor, 50 0. S. 378, the question arose whether the fee of 4 per cent, payable to county auditors for placing omitted property on the duplicate list for taxation, which required investigation and quasi-judicial consideration, was invalid. The court held that it was not, and that the objection urged there could not be based on the argument that a man could not be a judge in his own case; that the auditor had no case to be adjudged, but that on the contrary he was the taxing officer before whom other parties were cited to appear and show cause why they should not bear their equal burden of taxation. The court said that the action of the auditor was not final so as to cut off further inquiry, but that the whole case might be gone into anew by proper proceedings in court. An exactly opposite conclusion was reached by the United States Circuit Court for the Northern District of Ohio in Meyers v. Shields, 61 Fed. 713, 725 et seq. In other States than those above mentioned, the minor courts are paid for their services by the State or county regardless of acquittal or conviction, except that in Virginia the minor courts receive one-half of the usual fees where there is acquittal. Four States have put into their constitutions a provision that the State must pay the costs in such cases, in case of acquittal. They are California, Florida, Louisiana and South Carolina. The strict common law rule was adopted in this country as one to be enforced where nothing but the common law controlled, and citizens and taxpayers have been held incompetent to sit in suits against the municipal corporation of which they have been residents. Diveny v. 529 TUMEY V. OHIO. Opinion of the Court. 510 Elmira, 51 N. Y. 506; Corwein v. Hames, 11 Johns. 76; Clark v. Lamb, 2 Allen 396; Dively v. Cedar Falls, 21 Iowa 565; Fulweiler v. St. Louis, 61 Mo. 479; Petition of New Boston, 49 N. H. 328; Commonwealth v. McLane, 4 Gray 427; Fine v. St. Louis Public Schools, 30 Mo. 166, 173. With other courts, however, and with the legislatures, the strict rule seemed to be inconvenient, impracticable and unnecessary, and the view was taken that such remote or minute interest in the litigation might be declared by the Legislature not to be a reason for disqualification of a judge or juror. A case, much cited, in which this conclusion was reached and in which the old English corporation cases were considered, was that of City Council v. Pepper, 1 Richardson (S. C.) 364. The recorder of the City of Charleston sentenced a non-resident of the city for violation of a city ordinance requiring him to take out a license for what he did or to pay a fine not exceeding $20. The contention was that the defendant was a non-corporator and non-resident and not subject to the jurisdiction of the city court; that the recorder was a corporator and interested in the penalty and therefore was not competent to try the cause. The Court said (p. 366) in respect to Hesketh v. Braddock, 3 Burrows 1847, supra: “ It will be remarked that that case depends altogether upon the common law, and if the city court depended upon the same for its jurisdiction, the objection might be fatal. But the establishment and jurisdiction of the city court commences with the Act of 1801. By that Act it is clothed with the power of trying all offences against the by-laws of the city, and for that purpose is given concurrent jurisdiction with the court of Sessions. This grant of power is from all the people of the State, through their Legislature, and surely they have the power to dispense with the common law ’objection, that the cor- 42847°—27--34 530 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. porators were interested, and ought not to be intrusted with the enforcement of their laws against others. The authority given to the city court to try all offenders against the city ordinances, impliedly declares, that notwithstanding the common law objection, it was right and proper to give it the power to enforce the city laws against all offenders. That there was great reason in this can not be doubted, when it is remembered that the interest of the corporators is so minute as not to be even thought of, by sheriff, juror or judge. It is very much like the interest which similar officers would feel in enforcing a State law, the sanction of which was a penalty. The sum thus to be recovered goes in exoneration of some part of the burden of government to which every citizen is subjected; but such an interest has no effect upon the mind. It is too slight to excite prejudice against a defendant. The same thing is the case here. For the judge, sheriff and jurors, are members of a corporation of many thousand members. What interest, of value, have they in a fine of twenty dollars? It would put a most eminent calculator to great trouble to ascertain the very minute grain of interest which each of these gentlemen might have. To remove so shadowy and slight an objection, the Legislature thought proper to clothe the city court, consisting of its judge, clerk, sheriff and jurors, with authority to try the defendant, and he can not now object to it.” And the same view is taken in Commonwealth v. Ryan, 5 Mass. 90; Commonwealth v. Reed, 1 Gray 472, 475; Thomas v. Mt. Vernon, 9 Ohio 290; Commissioners N. Lytle, 3 Ohio 289; Wheeling v. Black, 25 W. Va. 266, 280; Board of Justices v. Fennimore, 1 N. J. L. 190; Foreman v. Mariana, 43 Ark. 324; Cartersville v. Lyon, 69 Ga. 577; Omaha v. Olmstead, 5 Neb. 446; Hill v. Wells, 6 Pickering 104; Commonwealth v. Emery, 11 Cushing 406; Barnett 531 TUMEY v. OHIO. Opinion of the Court. 510 v. State, 4 Tex. App. 72; Wellmaker v. Terrell, 3 Ga. App. 791; State v. Craig, 80 Maine 85. Mr. Justice Cooley, in his work on Constitutional Limitations, 7th edition, page 594, points out that the real ground of the ruling in these cases is that “ interest is so remote, trifling and insignificant that it may fairly be supposed to be incapable of affecting the judgment of or of influencing the conduct of an individual. And where penalties are imposed, to be recovered only in a municipal court, the judge or jurors in which would be interested as corporators in the recovery, the law providing for such recovery must be regarded as precluding the objection of interest.” But the learned judge then proceeds: “ But except in cases resting upon such reasons, we do not see how the legislature can have any power to abolish a maxim which is among the fundamentals of judicial authority.” Referring then to a remark in the case of the Matter oj Leeje, 2 Barb. Ch. 39, that the people of the State when framing their constitution might possibly establish so great an anomaly, if they saw fit, the learned author says: “ Even this must be deemed doubtful since the adoption of the fourteenth article of the amendments to the Federal Constitution, which denies to the state the right to deprive one of life, liberty or property, without due process of law.” From this review we conclude, that a system by which an inferior judge is paid for his service only when he convicts the defendant has not become so embedded by custom in the general practice either at common law or in this country that it can be regarded as due process of law, unless the costs usually imposed are so small that they may be properly ignored as within the maxim de minimis non curat lex. The Mayor received for his fees and costs in the present case $12, and from such costs under the Prohibition Act 532 OCTOBER TERM, 1926. Opinion of the Court. 273 U. 8. for seven months he made about $100 a month, in addition to his salary. We can not regard the prospect of receipt or loss of such an emolument in each case as a minute, remote, trifling or insignificant interest. It is certainly not fair to each defendant, brought before the Mayor for the careful and judicial consideration of his guilt or innocence, that the prospect of such a loss by the Mayor should weigh against his acquittal. These are not cases in which the penalties and the costs are negligible. The field of jurisdiction is not that of a small community engaged in enforcing its own local regulations. The court is a state agency, imposing substantial punishment, and the cases to be considered are gathered from the whole county by the energy of the village marshals, and detectives regularly employed by the village for the purpose. It is not to be treated as a mere village tribunal for village peccadilloes. There are doubtless mayors who would not allow such a consideration as $12 costs in each case to affect their judgment in it; but the requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice. Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law. But the pecuniary interest of the Mayor in the result of his judgment is not the only reason for holding that due process of law is denied to the defendant here. The statutes were drawn to stimulate small municipalities in the country part of counties in which there are large cities, to organize and maintain courts to try persons accused of violations of the Prohibition Act everywhere in the county. The inducement is offered of dividing between 533 TUMEY v. OHIO. Opinion of the Court. 510 the State and the village the large fines provided by the law for its violations. The trial is to be had before a mayor without a jury, without opportunity for retrial and with a review confined to questions of law presented by a bill of exceptions, with no opportunity by the reviewing court to set aside the judgment on the weighing of evidence, unless it should appear to be so manifestly against the evidence as to indicate mistake, bias or willful disregard of duty by the trial court. The statute specifically authorizes the village to employ detectives, deputy marshals and other assistants to detect crime of this kind all over the county, and to bring offenders before the Mayor’s court, and it offers to the village council and its officers a means of substantially adding to the income of the village to relieve it from further taxation. The mayor is the chief executive of the village. He supervises all the other executive officers. He is charged with the business of looking after the finances of the village. It appears from the evidence in this case, and would be plain if the evidence did not show it, that the law is calculated to awaken the interest of all those in the village charged with the responsibility of raising the public money and expending it, in the pecuniarily successful conduct of such a court. The mayor represents the village and can not escape his representative capacity. On the other hand, he is given the judicial duty, first, of determining whether the defendant is guilty at all, and second, having found his guilt, to measure his punishment between $100 as a minimum and $1,000 as a maximum for first offenses, and $300 as a minimum and $2,000 as a maximum for second offenses. With his interest, as mayor, in the financial condition of the village, and his responsibility therefor, might not a defendant with reason say that he feared he could not get a fair trial or a fair sentence from one who would have so strong a motive to help his village by conviction and a heavy fine? The old English cases, cited above, of the 534 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. days of Coke and Holt and Mansfield, are not nearly so strong. A situation in which an official perforce occupies two practically and seriously inconsistent positions, one partisan and the other judicial, necessarily involves a lack of due process of law in the trial of defendants charged with crimes before him. City of Boston v. Baldwin, 139 Mass. 315; Florida ex rel. Colcord v. Young, 31 Fla. 594. It is, of course, so common to vest the mayor of villages with inferior judicial functions that the mere union of the executive power and the judicial power in him can not be said to violate due process of law. The minor penalties usually attaching to the ordinances of a village council, or to the misdemeanors in which the mayor may pronounce final judgment without a jury, do not involve any such addition to the revenue of the village as to justify the fear that the mayor would be influenced in his judicial judgment by that fact. The difference between such a case and the plan and operation of the statutes before us is so plain as not to call for further elaboration. Counsel for the State argue that it has been decided by this Court that the legislature of a State may provide such system of courts as it chooses; that there is nothing in the Fourteenth Amendment that requires a jury trial for any offender; that it may give such territorial jurisdiction to its courts as it sees fit; and therefore that there is nothing sinister or constitutionally invalid in giving to a village mayor the jurisdiction of a justice of the peace to try misdemeanors committed anywhere in the county, even though the mayor presides over a village of 1,100 people and exercises jurisdiction over offenses committed in a county of 500,000. This is true and is established by the decisions of this Court in Missouri v. Lewis, 101 U. S. 22, 30; In re Claasen, 140 U. S. 200. See also Carey v. State, 70 Ohio State 121. It is also correctly pointed out that it is completely within the power of the legislature to dispose of the fines collected 535 TUMEY v. OHIO. Opinion of the Court. 510 in criminal cases as it will, and it may therefore divide the fines as it does here, one-half to the State and one-half to the village by whose mayor they are imposed and collected. It is further said with truth that the legislature of a State may, and often ought to, stimulate prosecutions for crime by offering to those who shall initiate and carry on such prosecutions rewards for thus acting in the interest of the State and the people. The legislature may offer rewards or a percentage of the recovery to informers. United States v. Murphy & Morgan, 16 Pet. 203. It may authorize the employment of detectives. But these principles do not at all affect the question whether the State by the operation of the statutes we have considered has not vested the judicial power in one who by reason of his interest, both as an individual and as chief executive of the village, is disqualified to exercise it in the trial of the defendant. It is finally argued that the evidence shows clearly that the defendant was guilty and that he was only fined $100, which was the minimum amount, and therefore that he can not complain of a lack of due process, either in his conviction or in the amount of the judgment. The plea was not guilty and he was convicted. No matter what the evidence was against him, he had the right to have an impartial judge. He seasonably raised the objection and was entitled to halt the trial because of the disqualification of the judge, which existed both because of his direct pecuniary interest in the outcome, and because of his official motive to convict and to graduate the fine to help the financial needs of the village. There were thus presented at the outset both features of the disqualification. The judgment of the Supreme Court of Ohio must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Judgment reversed. 536 OCTOBER TERM, 1926. Argument for Plaintiff in Error. 273 U.S. NIXON v. HERNDON et al. ERROR TO THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS. No. 117. Argued January 4, 1927.—Decided March 7, 1927. 1. An action for damages may be maintained against judges of election for unlawfully denying to a qualified voter the right to vote at a state primary election. P. 540. 2. A state statute (Texas, 1923, Art. 3093-a) barring negroes from participation in Democratic party primary elections held in the State for the nomination of candidates for senator and representatives in Congress, and state and other offices, violates the Fourteenth Amendment. P. 540. Reversed. Error to a judgment of the District Court which dismissed an action for damages brought by a negro against judges of election in Texas, based on their refusal to permit the plaintiff to vote at a primary election. Messrs. Fred C. Knollenberg and A. B. Spingarm, with whom Messrs. Louis Marshall, Moorfield Storey, James A. Cobb, and Robert J. Channell were on the briefs, for Nixon. The primary was a public election under the Constitution and laws of the State. Section 8 of Art. 5 of that Constitution provides that the District Court shall have original jurisdiction of contested elections. This provision has been held by the courts of Texas to confer upon the District Court jurisdiction over contested primary elections. Ashford v. Goodwin, 103 Tex. 491; Hamvmond v. Ashe, 103 Tex. 503, Anderson v. Ashe, 62 Tex. Civ. App. 262; Waples v. Marrast, 108 Tex. 5, and in Koy v. Schneider, 110 Tex. 369. Casting a ballot in a primary election established and regulated by state law is an act of voting within the meaning of the Fifteenth Amendment to the federal Con- 537 NIXON v. HERNDON. Argument for the State of Texas. 536 stitution, and the immunity against discrimination on account of race or color which is guaranteed by said Amendment protects the plaintiff in his right to vote in such primary, where the only obstacle interposed is that he is a negro. Rev. Stats. §§ 1978, 2004; Guinn v. United States, 238 U. S. 347; Myers v. Anderson, id. 367; Anderson v. Myers, 182 Fed. 223; United States v. Reese, 92 U. S. 214; Strauder v. West Virginia, 100 U. S. 303; Ex parte Siebold, id. 371; Ex parte Yarbrough, 110 U. S. 651; Love v. Griffith, 266 U. S. 32. When the negro, by virtue of the Fifteenth Amendment, acquired immunity from discrimination in voting on account of his race and color, he thereby acquired the right and privilege as a free man to exercise, to the same extent as a white man, his untrammeled choice in the selection of parties or candidates; and when the legislature of a State, solely because of his race and color, undertakes by law to exclude him from any party, or deny him the same latitude in registering his preference as a member of any party of his choice that it allows to white members of such party, it thereby abridges his right to vote under the Amendment, and denies to him the equal protection of the law guaranteed by the Fourteenth Amendment. United States v. Reese, 92 U. S. 214; United States N. Cruikshank, id. 542; Ex parte Virginia, 100 U. S. 339; Strauder v. West Virginia, id. 303; Ex parte Yarbrough, 110 U. S. 651; Yick Wo v. Hopkins, 118 U. S. 356; McPherson v. Blacker, 146 U. S. 1; G. C. & S. F. Ry. Co. v. Ellis, 165 U. S. 150; Connolly v. United Pipe Co., 184 U. S. 558. No appearance for defendants in error. Messrs. Claude Pollard, Attorney General of Texas, and D. A. Simmons, First Assistant Attorney General, filed a brief for the State of Texas, by special leave of Court. 538 OCTOBER TERM, 1926. Argument for the State of Texas. 273 U. S. The nominating primary of a political party is not an election in which everyone may vote. There are many organized groups of persons, voluntary in character, in the several States of the Union. In many of these the election of officers and the purposes and objects of the organization depend upon the votes of the individual members. Some of these are maintained for charitable purposes, some for the support of religious worship, some for the diffusion of knowledge and the extension of education, some for the promotion of peace, and some for the advancement of political ideas. It clearly appears, therefore, that the right to vote referred to in constitutions, and elections mentioned therein, do not include within their scope all elections and all voting by persons in the United States. The act of the legislature of Texas and the nominating primary in which the voté of plaintiff in error was refused, dealt only with voting within a designated political party, which is but the instrumentality of a group of individuals for the furtherance of their own political ideas. It must be remembered that “ nominating primaries ” were unknown at the time of the adoption of the Constitution of the United States and of the Constitution of Texas in 1876. The nominating primary, like its predecessors, the nominating convention and the caucus, is not the “ election.” Nomination is distinct from election and has been so differentiated from the beginning of our government. The question of parties and their regulation is a political one rather than legal. The District Court of the United States has no jurisdiction in a case of this character. Political questions are not within its province. Chandler v. Neff, 298 Fed. 515; 12 C. J. 878. Because the Democratic party holds a nominating primary, can it be contended that outsiders can be forced upon the party over its expressed dissent? If the party should abandon the primary and go back to the conven- 539 NIXON v. HERNDON. Opinion of the Court. 536 tion or the caucus system, could it be consistently maintained that the courts could force upon the convention or upon the caucus, the plaintiff in error, if the membership of the party, the convention or the caucus were restricted against negroes? We contend that a nominating primary is purely a political matter and outsiders denied participation by the party councils cannot demand a redress at the hands of the Courts. Waples v. Marrast, 108 Tex. 11. Distinguishing, Love v. Griffith, 266 U. S. 32. Chandler v. Neff, 298 Fed. 515, disposed of a case almost identical with this one, and holds with the Supreme Court of Texas that a primary of a political party is not an election, and the right of a citizen to vote therein is not within the protection of the Fourteenth and Fifteenth Amendments to the Constitution of the United States. Nor is this doctrine limited to Texas. Riter v. Douglass, 32 Nev. 400; Gulden v. Johnson, 87 Minn. 223; Webber v. Felton, 77 Oh. St. 554; Baer v. Gore, 79 W. Va. 50; Dooley v. Jackson, 104 Mo. App. 21; Morrow v. Wipf, 22 S. D. 146; Montgomery v. Chelf, 118 Ky. 766; State v. Michel, 121 La. 374; Socialist Party n. Uhl, 155 Cal. 776; People v. Democratic Committee, 164 N. Y. 335; Newberry v. United States, 256 U. S. 232. Mr. Justice Holmes delivered the opinion of the Court. This is an action against the Judges of Elections for refusing to permit the plaintiff to vote at a primary election in Texas. It lays the damages at five thousand dollars. The petition alleges that the plainjiff is a negro, a citizen of the United States and of Texas and a resident of El Paso, and in every way qualified to vote, as set forth in detail, except that the statute to be mentioned interferes with his right; that on July 26, 1924, a primary election was held at El Paso for the nomination of candidates for a senator and representatives in Congress and State and other offices, upon the Democratic ticket; that 54Ô OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. the plaintiff, being a member of the Democratic party, sought to vote but was denied the right by defendants; that the denial was based upon a Statute of Texas enacted in May, 1923, and designated Article 3093a, by the words of which “ in no event shall a negro be eligible to participate in a Democratic party primary election held in the State of Texas,” &c., and that this statute is contrary to the Fourteenth and Fifteenth Amendments to the Constitution of the United States. The defendants moved to dismiss upon the ground that the subject matter of the suit was political and not within the jurisdiction of the Court and that no violation of the Amendments was shown. The suit was dismissed and a writ of error was taken directly to this Court. Here no argument was made on behalf of the defendants but a brief was allowed to be filed by the Attorney General of the State. The objection that the subject matter of the suit is political is little more than a play upon words. Of course the petition concerns political action but it alleges and seeks to recover for private damage. That private damage may be caused by such political action and may be recovered for in a suit at law hardly has been doubted for over two hundred years, since Ashby v. White, 2 Ld. Raym. 938, 3 id. 320, and has been recognized by this Court. Wiley v. Sinkler, 179 U. S. 58, 64, 65. Giles v. Harris, 189 U. S. 475, 485. See also Judicial Code, § 24 (11), (12), (14). Act of March 3, 1911, c. 231; 36 Stat. 1087, 1092. If the defendants’ conduct was a wrong to the plaintiff the same reasons that allow a recovery for denying the plaintiff a vote at a final election allow it for denying a vote at the primary election that may determine the final result. The important question is whether the statute can be sustained. But although we state it as a question the answer does not seem to us open to a doubt. We find it unnecessary tn consider the Fifteenth Amendment, be- INGENOHL v. OLSEN & CO. 541 536 Syllabus. cause it seems to us hard to imagine a more direct and obvious infringement of the Fourteenth. That Amendment, while it applies to all, was passed, as we know, with a special intent to protect the blacks from discrimination against them. Slaughter House Cases, 16 Wall. 36. Strauder v. West Virginia, 100 U. S. 303. That Amendment “not only gave citizenship and the privileges of citizenship to persons of color, but it denied to any State the power to withhold from them the equal protection of the laws. . . . What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? ” Quoted from the last case in Buchanan v. Warleg, 245 U. S. 60, 77. See Yick Wo v. Hopkins, 118 U. S. 356, 374. The statute of Texas in the teeth of the prohibitions referred to assumes to forbid negroes to take part in a primary election the importance of which we have indicated, discriminating against them by the distinction of color alone. States may do a good deal of classifying that it is difficult to believe rational, but there are limits, and it is too clear for extended argument that color cannot be made the basis of a statutory classification affecting the right set up in this case Judgment reversed. INGENOHL v. OLSEN & COMPANY, INC. CERTIORARI TO THE SUPREME COURT OF THE PHILIPPINE ISLANDS. No. 174. Argued March 1, 1927.—Decided March 14, 1927. 1. A trade-mark, started elsewhere, has only such validity and protection in a foreign country as the foreign law accords it. P. 544. 542 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. 2. Section 311(2) of the Philippine Code of Civil Procedure, which provides that a judgment “ may be repelled by evidence of . . . clear mistake of law or fact,” does not justify refusal to enforce a judgment for costs rendered by the Supreme Court of Hongkong in a trade-mark suit, upon the ground that that court mistakenly denied effect in Hongkong to a sale of the trade-mark with the business of the plaintiff in the Philippine Islands, made by the Alien Property Custodian to the defendant. P. 544. 3. The Alien Property Custodian, under the Trading with the Enemy Act, had no power to transfer trade-mark rights in a foreign country contrary to the foreign law. P. 544. 4. This Court has jurisdiction by certiorari to review a case from the Supreme Court of the Philippine Islands in which the validity of a section of the Philippine Code of Civil Procedure and a construction of the Trading with the Enemy Act are drawn in question. P. 545. 47 P. I. 189, reversed. Certiorari (269 U. S. 542) to a judgment of the Supreme Court of the Philippine Islands which reversed a judgment recovered by the plaintiff, Ingenohl, in the Court of First Instance. The action was based on a judgment for costs, awarded to the plaintiff by the Supreme Court of Hongkong, in a suit to restrain the defendant, Walter E. Olsen & Company Inc., from infringing the plaintiff’s trade-mark. Mr. James M. Beck, with whom Messrs. 0. R. McGuire and Joseph C. Mey erstein were on the briefs, for petitioner. Mr. Frederic R. Coudert, Jr., with whom Messrs. Frederic R. Coudert and Allison D. Gibbs were on the brief, for respondent. Mr. Justice Holmes delivered the opinion of the Court. This is a suit to recover the costs adjudged to the plaintiff, the petitioner here, in a former suit that was brought by him against the defendant in the British Colony of Hongkong and was determined in his favor by the Su- INGENOHL v. OLSEN & CO. 543 541 Opinion of the Court. preme Court there. The judgment declared the plaintiff to be the owner of certain trade-marks and trade names and entitled to the exclusive use of them in connection with his business as a cigar manufacturer. It restrained the defendants from selling cigars under these trademarks and awarded the costs now sued for. The Court of First Instance of Manila gave judgment for the plaintiff. On appeal the Supreme Court of the Philippine Islands reversed this decision on the ground that by §311(2) of the Code of Civil Procedure a judgment against a person “ may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud or clear mistake of law or fact,” and that the judgment of the Supreme Court of Hongkong showed such a clear mistake. The supposed mistake consisted in denying effect in Hongkong to a sale of business and trade-marks by the Alien Property Custodian to the defendant, the circumstances and nature of which may be stated in few words so far as they concern the present case. The plaintiff Ingenohl had built up a great business as a cigar manufacturer and exporter having his factory at Manila. In 1908 he established a factory at Hongkong and thereafter goods from both factories were sold under the same trademarks, the outside box or package of the Hongkong goods having a label indicating that they came from there. The trade-marks were registered in Hongkong and the cigars covered by them had acquired a reputation. In 1918 the Alien Property Custodian seized and sold all the property “ wheresoever situate in the Philippine Islands . . . including the business as going concern, and the good will, trade names and trade-marks thereof, of Syndicat Oriente,” being the above mentioned business of the plaintiff in the Philippines. The Supreme Court of the Philippines held that it was plain error in the Supreme Court of the British Colony to hold that this sale did not 544 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. carry the exclusive right to use the trade-marks in the latter place. A trade-mark started elsewhere would depend for its protection in Hongkong upon the law prevailing in Hongkong and would confer no rights except by the consent of that law. Hanover Star Milling Co. v. Metcalf, 240 U. S. 403. United Drug Co. v. Theodore Rectanus Co., 248 U. S. 90. When, then, the judge who, in the absence of an appeal to the Privy Council, is the final exponent of that law, authoritatively declares that the assignment by the Custodian of the assets of the Manila firm cannot and will not be allowed to affect the rights of the party concerned in Hongkong, we do not see how it is possible for a foreign Court to pronounce his decision wrong. It will be acted on and settles the rights of the parties in Hongkong; and in view of that fact it seems somewhat paradoxical to say that it is not the law. If the Alien Property Custodian purported to convey rights in English territory valid as against those whom the English law protects he exceeded the powers that were or could be given to him by the United States. It is not necessary to consider whether the section of the Code of Civil Procedure relied upon was within the power of the Philippine Commission to pass. In any event as interpreted it involved delicate considerations of international relations and therefore we should not hold ourselves bound to that deference that we show to the judgment of the local Court upon matters of only local concern. We are of opinion that whatever scope may be given to the section it is far from warranting the refusal to enforce this English judgment for costs, obtained after a fair trial before a court having jurisdiction of the parties, when the judgment is unquestionably valid and in other respects will be enforced. Of course a foreign state might accept the Custodian’s transfer as good within its jurisdiction, if there were no opposing local interest or right, 545 SHUKERT v. ALLEN. Statement of the Case. 541 and that may be the fact for China outside of Hongkong as seems to have been held in another case not yet finally disposed of, but no principle requires the transfer to be given effect outside of the United States and when as here it has been decided to have been ineffectual it is unnecessary to inquire whether in the other event the Alien Property Custodian was authorized by the statute to use or did use in fact words purporting to have that effect, or what the effect, if any, would be. Some question was made of the jurisdiction of this Court. The jurisdiction was asserted, at least provisionally, when the writ of certiorari was granted. There are few cases in which it is more important to maintain it, and we confirm it now. The validity of the section of the Code of Civil Procedure is drawn in question, and also the construction of the Trading with the Enemy Act which is treated as purporting to authorize what in our opinion it could not authorize if it tried. Judgment reversed. SHUKERT et al., EXECUTRICES, v. ALLEN, COLLECTOR. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 193. Argued March 4, 7, 1927.—Decided March 21, 1927. A conveyance of securities made before the testator’s death and not in contemplation of it, in trust to accumulate the income until a distant date specified, and then to divide the fund among his children, designated by name as the beneficiaries, vested the interests of his children when it was executed and was not “intended to take effect in possession or enjoyment at or after his death,” within the meaning of § 402(c), Revenue Act of 1918. P. 547. 6 F. (2d) 551, reversed. Certiorari (269 U. S. 543) to a judgment of the Circuit Court of Appeals, which affirmed a judgment of the Dis- 428470—27-35 546 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. trict Court (300 Fed. 754) directing a verdict for the Collector in an action to recover money paid under protest as a federal estate tax. Messrs. William B. Mcllvaine and Arthur F. Mullen, with whom Mr. J. F. Dammann, Jr., was on the briefs, for petitioners. Mr. Thomas H. Lewis, Jr., with whom Solicitor General Mitchell, Assistant Attorney General Willebrandt, Mr. A. W. Gregg, General Counsel, Bureau of Internal Revenue, and Mr. Sewall Key, Attorney in the Department of Justice, were on the briefs, for respondent. Mr. Justice Holmes delivered the opinion of the Court. This is a suit to recover the amount of a federal estate tax paid by the plaintiffs, petitioners, under duress. The District Court directed a verdict for the defendant, the collector, 300 Fed. 754, the judgment upon which was affirmed by the Circuit Court of Appeals. 6 F. (2d) 551. A writ of certiorari was granted by this Court. 269 U. S. 543. The tax was levied under the Revenue Act of 1918; February 24, 1919, c. 18, § 402(c); 40 Stat. 1057, 1097, which provides that the value of the gross estate of the decedent shall be determined by including all property “ To the extent of any interest therein of which the decedent has at any time made a transfer, or with respect to which he has created a trust, in contemplation of or intended to take effect in possession or enjoyment at or after his death,” &c. By § 401 the tax is laid upon the transfer of the net estate. The transfer taxed in this case was made by the testator on May 5, 1921, and was a conveyance to the United States Trust Company of Omaha of notes and bonds valued at $225,000, par, in trust to accumulate the income (subject to certain small deduc- 547 SHUKERT v. ALLEN. Opinion of the Court. 545 tions in case of the extreme destitution of the testator’s wife or of any of the beneficiaries named) until February 1, 1951, unless the last of the beneficiaries should have died more than twenty-one years before that date, &c., and then to divide the principal and undistributed income among his three children by name. The testator died on September 29,1921, a few months after creating this trust, but it is not argued that he created it in contemplation of death as a device to escape taxes. The only question is whether the trust was one intended to take effect in possession or enjoyment after his death, as was ruled below. The transfer was immediate and out and out, leaving no interest remaining in the testator. The trust in its terms has no reference to his death but is the same and unaffected whether he lives or dies. Although the Circuit Court of Appeals seems to have thought otherwise, the interest of the children respectively was vested as soon as the instrument was executed, even though it might have been divested as to any one of them in favor of his issue if any, or of the surviving beneficiaries, if he died before the termination of the trust. See Gray, The Rule Against Perpetuities, § 108(3). It seems plain from the little evidence that was put in that the testator was not acting in Contemplation of death as a motive for his act, or otherwise, except in the sense that he was creating a fund intended, to secure his children from want in their old age, whoever might dissipate the considerable property that he retained and left at his death; and that being fifty-six years old, if he thought about it, he would have contemplated the possibility or probability of his being dead before the emergency might arise. Of course it was not argued that every vested interest that manifestly would take effect in actual enjoyment after the grantor’s death was within the statute. There certainly is no transfer taking effect after his death to be taxed under § 401. 548 OCTOBER TERM, 1926. Syllabus. 273 U. S. It is not necessary to consider whether the petitioner goes too far in contending that § 402(c) should be construed to refer only to transfers of property the possession or enjoyment of which does not pass from the grantor until his death. But it seems to us tolerably plain, that when the grantor parts with all his interest in the property to other persons in trust, with no thought of avoiding taxes, the fact that the income vested in the beneficiaries was to be accumulated for them instead of being handed to them to spend, does not make the trust one intended to take effect in possession or enjoyment at or after the grantor’s death. Judgment reversed. FIRST NATIONAL BANK OF HARTFORD, WISCONSIN, v. CITY OF HARTFORD et al. ERROR TO THE SUPREME COURT OF THE STATE OF WISCONSIN. No. 186. Argued December 13, 1926.—Decided March 21, 1927. 1. Upon review of a judgment of a state court sustaining a discriminatory state tax on national bank shares upon the ground that the other moneyed capital, favored by the discrimination, was not employed in competition with the business of the national bank, this Court may review the evidence regarding such competition and is not concluded by the finding of the state court. P. 552. 2. The validity, under Rev. Stats. § 5219, of a state tax on national bank shares at a greater rate than that assessed on other moneyed capital depends upon whether or not the moneyed capital thus favored is employed in such a manner as to bring it into substantial competition with the business of national banks. P. 552. 3. The requirement of approximate equality in taxation (R. S. § 5219) is not limited to moneyed capital invested in state banks or to competing capital employed in private banking; it applies wherever capital, substantial in amount compared with the capitalization of national banks, is employed in a business, or by private investors, in the same sort of transactions as those in which national banks engage and in the same locality in which they do business. Pp. 555, 557. FIRST NATIONAL BANK v. HARTFORD. 549 548 Counsel for Parties. 4. The amendment of § 5219, by Act of March 4, 1923, merely expressed what was previously implied, and by its terms excludes from “ moneyed capital ” only those personal investments which are not in competition with the business of national banks. P. 557. 5. Proof of competition by untaxed capital involves showing that it is employed in such investments as are open to national banks. P. 558. 6. In this case the evidence shows substantial competition with national banks by untaxed capital in the business of making loans and selling credits and also by capital of private individuals who, as investors of surplus funds, were engaged in lending money at interest on real estate mortgages and other evidences of indebtedness, normal to banking. P. 558. 7. To establish the fact of competition, it is not necessary to show that national banks and the other investors solicit the same customers for the same loans or investments. It is enough if both engage in seeking and securing in the same locality investments of the class described which are substantial in amount. P. 559. 8. The sale of real estate mortgages and other evidences of debt acquired by way of loan or discount with a view to reinvestment is within the incidental powers of national banks. P. 559. 9. The fact that discrimination against national bank shares is not unfriendly or hostile but is induced by the state policy of substituting income taxes for personal property taxes, does not render Rev. Stats. § 5219 inapplicable. P. 560. 187 Wis. 290, reversed. Error to a judgment of the Supreme Court of Wisconsin in a suit brought by the bank to recover from the City of Hartford the amount of a tax assessed and collected upon shares of its stock. The court below reversed a judgment for the plaintiff and directed the trial court to enter a judgment dismissing the complaint. Mr. Arthur W. Fairchild, with whom Messrs. George P. Miller, Edwin S. Mack, J. Gilbert Hardgrove, and E. W. Sawyer were on the brief, for plaintiff in error. Mr. Edward J. Dempsey, with whom Messrs. Herman L. Ekern, Attorney General of Wisconsin, Franklin E. Bump, Assistant Attorney General, Edward M. Smart, 550 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. J. C. Russell, and Lloyd Mitchell were on the brief, for defendants in error. Mr. Justice Stone delivered the opinion of the Court. Plaintiff in error, a national banking association doing business in Wisconsin, brought suit in the circuit court of Washington County, Wisconsin, to recover from the defendant in error, the City of Hartford, a tax assessed and paid for the year 1921 upon shares of stock in plaintiff bank, on the ground that the assessment and tax were prohibited by § 5219 of the Revised Statutes of the United States (Act of June 3, 1864, c. 106, 13 Stat. 99, 112; Act of February 10, 1868, c. 7, 15 Stat. 34). The tax having been paid under protest, a suit for its recovery, raising the legality of the assessment, is permitted by local statutes. Wis. Stat. 1923, § 74.73. The trial court held the assessment illegal and gave judgment for the plaintiff. On appeal, the Supreme Court of Wisconsin reversed the judgment with a direction to the court below to enter judgment in favor of the defendant, dismissing the complaint. 187 Wis. 290. The case comes here on writ of error under § 237 of the Judicial Code. Merchants’ National Bank v. Richmond, 256 U. S. 635, 637; First National Bank v. Anderson, 269 U. S. 341, 346. The contention here is that the State Supreme Court erred in holding that these tax statutes are not repugnant to § 5219 Revised Statutes. “ National banks are not merely private moneyed institutions but agencies of the United States created under its laws to promote its fiscal policies; and hence the banks, their property and their shares cannot be taxed under state authority except as Congress consents and then only in conformity with the restrictions attached to its consent.” First National Bank v. Anderson, supra, 347; Des Moines Bank v. Fairweather, 263 U. S. 103, 106. Con- FIRST NATIONAL BANK v. HARTFORD. 551 548 Opinion of the Court. 4 gress, by appropriate legislation, has permitted the taxation of shares in national banks subject to certain restrictions. Section 5219 sanctions such taxation in the state where the bank is located, subject to the restriction that “ the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State.” By decisions of this Court construing this language, it is established that the phrase “ other moneyed capital ” does not embrace all moneyed capital not invested in bank shares, but “ only that which is employed in such way as to bring it into substantial competition with the business of national banks.” First National Bank v. Anderson, supra, 348. Hence the question presented by this record is whether the tax imposed upon the shares of stock of plaintiff under the Wisconsin statutes is at a greater rate than that imposed upon other moneyed capital in the hands of individual citizens of Wisconsin employed in substantial competition with national banks. By § 70.31 of the Wisconsin statutes, an ad valorem tax is assessed upon all shares of banks, including national banking associations, as personal property within the assessment district in which the bank is located. Section 70.11 exempts from such taxation “ all moneys or debts due or to become due to any person and all stocks and bonds, including bonds issued by any county, town, city, village, school district, or other political subdivision of this state, not otherwise specially provided for.” Acting under these statutes, the taxing authorities imposed the tax now in question, but made no assessment and levied no tax upon credits or intangible property other than the shares of stock in banking corporations. The State of Wisconsin imposes a tax upon incomes, including incomes derived from credits. The court below assumed, and it was not questioned upon the argument here, that this tax is not to be taken as an equivalent or 552 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. substitute for the ad valorem tax levied upon bank shares and no question of the possible equivalence of the two schemes of taxation is presented. From the sections cited, it appears that the tax statutes of Wisconsin discriminate in favor of moneyed capital and capital investments within the state, represented by credits or intangibles, and against that invested in shares in banking corporations. But it is not sufficient to show this discrimination alone. The validity of the tax complained of depends upon whether or not the moneyed capital in the state thus favored is employed in such a manner as to bring it into substantial competition with the business of national banks. The question thus raised involves considerations both of fact and of law. To answer it, it is necessary to ascertain the nature and extent of the moneyed capital in the hands of individual citizens within the state and the relation of its employment, in point of competition, to the business of plaintiff and other national banks. It is necessary also to ascertain the precise meaning to be given the statute as applied to the facts in hand in order to determine whether the particular moneyed capital and the particular competition with which we are here concerned are moneyed capital and competition within the spirit and purpose of the statute. The question is thus a mixed one of law and fact, and in dealing with it we may review the facts in order correctly to apply the law. Truax v. Corrigan, 257 U. S. 312, 325; Kansas City Southern Ry. v. Albers Commission Co., 223 U. S. 573, 591; Northern Pac. Ry. v. North Dakota, 236 U. S. 585, 593; Jones National Bank v. Yates, 240 U. S. 541, 552, 553; cf. Merchants’ National Bank v. Richmond, supra, 638 The opposite view expressed in Jenkins v. Neff, 186 U. S. 230, 235, must be considered discarded by the later cases. Also, as the case is brought here from a state court for review on the ground that a federal right there set up FIRST NATIONAL BANK v. HARTFORD. 553 548 Opinion of the Court. was denied, this Court is not concluded by a finding of the state court that the asserted right is without basis in fact. Aetna Life Ins. Co. v. Dunken, 266 U. S. 389, 394; Southern Pac. Co. v. Schuyler, 227 U. S. 601, 611. The evidence shows that plaintiff in the course of its business receives deposits, loans money, has a savings department, deals in exchange, buys and sells notes, government and other bonds, discounts commercial paper and acquires real estate mortgages by loan and purchase. On the trial, plaintiff called numerous witnesses who gave testimony, uncontradicted by defendant, tending to show the nature and extent of various classes of moneyed capital in the hands of individuals in the state and the nature of its employment in competition with the business carried on by national banks. There are real estate firms engaged in lending money to individuals in the vicinity of plaintiff’s banking house, the amount thus loaned amounting annually from $250,000 to $300,000. According to the testimony, the making of these loans affords the same competition to plaintiff as loans made by banks. And similar conditions obtain throughout the state. There are various individuals, co-partnerships and corporations in the vicinity engaged in the business of acquiring and selling notes, bonds, mortgages and securities. Substantial capital is employed in their business. Others, having their place of business in Milwaukee and in Chicago, are engaged within the state in the business of buying and selling securities both in the vicinity of plaintiff’s banking house and elsewhere, and employ capital for that purpose. Securities thus acquired and offered for sale include public utility and other forms of bonds, notes and farm mortgages. In 1921, one company alone, having its place of business in Milwaukee but doing business throughout the state, including the vicinity of plaintiff’s bank, sold approximately $25,000,000 of bonds and other securities. This company is shown to be affiliated 554 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. with and its stock held principally by stockholders of the First Wisconsin National Bank of Milwaukee, and to have been organized for the purpose of taking over the business of the bank in dealing in securities. Neither the capital employed in these various enterprises by individuals or corporations, so far as invested in the credits, nor the shares held by investors in such corporations is subjected to the ad valorem tax. Upon this evidence, the trial court found that during 1921 moneyed capital in the hands of individual citizens in the vicinity of plaintiff’s banking house, amounting to many hundreds of thousands of dollars, which was not assessed for taxation nor taxed, was employed in a manner which brought it into competition with the business conducted by national banks, including that of plaintiff. It also found that moneyed capital to the extent of millions of dollars held by individual citizens throughout the state, and employed in a manner which brought it into competition with such banks, was similarly exempt from this taxation. The State Supreme Court held that it was not concluded by these findings of mixed law and fact. Since the Wisconsin tax law is one of state-wide application, it took judicial notice of the general conditions within the state to which the law applies, and reached the conclusion that there was no capital in the hands of individual citizens which was invested or used in substantial competition with capital invested in shares of national banks. In so doing, it pointed out that under § 224.03 (Wis. Stat. 1923) all persons, firms and corporations doing a banking business are required to incorporate as banks and their shares are taxed in the same way and at the same rate as shares in national banks. As the basic ground for its decision, the court stated that in consequence of these statutes, “ there are no concerns or individuals FIRST NATIONAL BANK v. HARTFORD. 555 548 Opinion of the Court. within the state of Wisconsin engaged in enterprises in which the capital employed in carrying on its business, is money,1where the object of the business is the making of profit by its use as money,’ except banks. All such persons, firms and corporations are required under the laws of the state of Wisconsin to organize as banks.” But the Wisconsin statutes requiring those engaged in the banking business to incorporate as banks are expressly limited in their application to those engaged in “ soliciting, receiving or accepting of money or its equivalent on deposit as a regular business.” Wis. Stat. 1923, § 224.02. They have no application to transactions already described which formed the basis of the trial court’s finding that competition existed. It is not denied, and indeed it affirmatively appears from the evidence, that there are individuals, firms and corporations in Wisconsin, not required by its laws to be incorporated as banks, engaged in the business of loaning money on the security of notes, bonds, and mortgages, and buying and selling securities, all involving investment and reinvestment by them and their customers. Through the activities of these business concerns, large investments are made and remade in such securities. Large amounts of capital are thus employed in some of the ordinary banking activities although these individuals and firms do not receive deposits. The state court did not ignore this evidence. It conceded that the local tax statutes were in fact discrim-inatory. But it apparently construed the decisions of this Court as requiring equality in taxation only of moneyed capital invested in businesses substantially identical with the business carried on by national banks. Consequently, since that class of business must under the Wisconsin statutes be carried on in corporate form and capital invested in it is taxed at the same rate as national bank shares, other moneyed capital, as defined in § 5219, within 556 OCTOBER TERM, 1926. Opinion of the Court. • 273 U.S. the state, it thought, was not favored. Under this view, if logically pursued, capital invested in businesses engaged in some but not all of the activities of national banks as well as that employed by individuals in investment and reinvestment in securities such as we have described could not be considered in determining the question of competition. But this Court has recently had occasion, in reviewing the earlier decisions dealing with this subject, to point out that the requirement of approximate equality in taxation is not limited to investment of moneyed capital in shares of state banks or to competing capital employed in private banking. The restriction applies as well where the competition exists only with respect to particular features of the business of national banks or where moneyed capital “is employed, substantially as in the loan and investment features of banking, in making investments by way of loan, discount or otherwise, in notes, bonds or other securities, with a view to sale or repayment and reinvestment.” First National Bank v. Anderson, supra, 348. In so doing, it followed the holding in Mercantile Bank v. New York, 121 U. S. 138, 157, that, “ The terms of the act of Congress, therefore, include shares of stock or other interests owned by individuals in all enterprises in which the capital employed in carrying on its business is money, where the object of the business is the making of profit by its use as money. The moneyed capital thus employed is invested for that purpose in securities by way of loan, discount, or otherwise, which are from time to time, according to the rules of the business, reduced again to money and reinvested. It includes money in the hands of individuals employed in a similar way, invested in loans, or in securities for the payment of money, either as an investment of a permanent character, or temporarily with a view to sale or repayment and reinvestment. In this way the moneyed FIRST NATIONAL BANK v. HARTFORD. 557 548 Opinion of the Court. capital in the hands of individuals is distinguished from what is known generally as personal property, . . The amendment to § 5219 (Act of March 4, 1923, c. 267, 42 Stat. 1499), passed after the present tax was levied, provides that “bonds, notes, or other evidences of indebtedness in the hands of individual citizens not employed or engaged in the banking or investment business and representing merely personal investments not made in competition with such business, shall not be deemed moneyed capital within the meaning of this section.” (Italics ours.) It is said that this enactment is a legislative interpretation of § 5219 as it stood prior to the amendment; that consequently a narrower interpretation must be given to this section than in earlier cases, and that under the section before and as amended, personal investments of individuals should, under no circumstances, be deemed included in the term competing capital. But as was pointed out in First National Bank v. Anderson, supra, 350, the amendment did no more than put into express words that “ which according to repeated decisions of this Court was implied before.” By its terms the amendment excludes from moneyed capital only those personal investments which are not in competition with the business of national banks. Competition may exist between other moneyed capital and capital invested in national banks, serious in character and therefore well within the purpose of § 5219, even though the competition be with some but not all phases of the business of national banks. Section 5219 is not directed merely at discriminatory taxation which favors a competing banking business. Competition in the sense intended arises not from the character of the business of those who compete but from the manner of the employment of the capital at their command. No decision of this Court appears to have so qualified § 5219 as to permit discrimination in taxation in favor of moneyed capital such 558 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. as is here contended for. To so restrict the meaning and application of § 5219 would defeat its purpose. It was intended to prevent the fostering of unequal competition with the business of national banks by the aid of discriminatory taxation in favor of capital invested by institutions or individuals engaged either in similar businesses or in par< icular operations or investments like those of national banks. Mercantile Bank v. New York, supra, 155. With the great increase in investments by individuals and the growth of concerns engaged in particular phases of banking shown by the evidence in this case and in Minnesota v. First National Bank of St. Paul, today decided, post, p. 561, discrimination with respect to capital thus used could readily be carried to a point where the business of national banks would be seriously curtailed. Our conclusion is that § 5219 is violated wherever capital, substantial in amount when compared with the capitalization of national banks, is employed either in a business or by private investors in the same sort of transactions as those in which national banks engage and in the same locality in which they do business. Some of the cases dealing with the technical significance of the term competition in this field were decided before national banks were permitted to invest in mortgages as they now are. Act of December 23, 1913, c. 6, § 24, 38 Stat. 251, 273; Act of September 7, 1916, c. 461, 39 Stat. 752, 754; Act of February 25, 1927, § 24. And others go no further than to hold that in the absence of allegation and proof of competition with national banking capital, it cannot be said that an offending discrimination exists. And it is not sufficient to show that untaxed capital is invested in loans and securities without showing also that the class of investments favored is open to national banks. Here, large amounts of capital are shown to be invested in businesses carried on throughout the state which are of the same character as some though not all of the business FIRST NATIONAL BANK v. HARTFORD. 559 548 Opinion of the Court. carried on by national banks. In two fields at least, loans and sales of credits, capital thus employed is shown to be in substantial competition with that of national banks. The evidence might have been directed more in detail to the precise character of the competition. But that offered was uncontradicted, and when it was shown that national banks in the State of Wisconsin having a capital and surplus in excess of fifty millions of dollars are engaged in the business of making loans, and that there is an extensive loan business in the state not subjected to the tax burdens of national banks, and it was testified directly that this business came into competition with the business of plaintiff and other national banks, we think that the finding of the trial court was supported by the evidence and should not have been disturbed. There was also, we think, sufficient evidence that private individuals as investors of surplus funds are engaged in loaning money at interest on real estate mortgages and other evidences of indebtedness such as normally enter into the business of banking and that these investments are of substantial amount. We do.not conceive that in order to establish the fact of competition it is necessary to show that national banks and competing investors solicit the same customers for the same loans or investments. It is enough as stated if both engage in seeking and securing in the same locality capital investments of the class now under consideration which are substantial in amount. It is argued that national banks are not authorized to deal in bonds or other evidences of indebtedness and that §5219 was not intended to protect them from discriminatory taxation in favor of moneyed capital employed in a business in which they may not engage. But it is not necessary for the purposes of this case to determine the precise limits of their powers. They are given authority, in addition to loaning money, to exercise all such “ incidental powers ” as shall be necessary to carry on the busi- 560 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. ness of banking “ by discounting and negotiating promissory notes, drafts, bills of exchange, and other evidences of debt.” § 5136 Revised Statutes. They are authorized, with certain limitations, to loan money on real estate mortgages. Act of December 23, 1913, supra; Act of September 7, 1916, supra; Act of February 25, 1927, § 24. Here plaintiff is shown to have investments in real estate mortgages and to be engaged in selling them. The sale of mortgages and “ other evidences of debt ” acquired by way of loan or discount with a view to reinvestment is, we think, within the recognized limits of the incidental powers of national banks. Compare First National Bank v. Anderson, supra, 348; Mercantile National Bank v. New York, supra, 156. To that extent the business of acquiring and selling such mortgages and evidences of debt, carried on by numerous individuals, firms, and corporations in Wisconsin, comes into competition with this incidental business of national banks. That the exercise of this incidental power has become of great importance in the business of national banks appears from the Report of the Comptroller of the Currency for 1924, 44 et seq., showing that approximately one-third of the investment of national banks consist of Government, railroad, public service corporation and other bonds, and “ collateral trust and other corporation notes.” Finally it is said that § 5219 is directed to an unfriendly discrimination or hostile attitude on the part of a state and that here the Wisconsin legislation was not dictated by such considerations, since the challenged exemptions were merely incidental to the adoption of a state policy of substituting, so far as possible, an income for a personal property tax. But a consideration of the entire course of judicial decision on this subject can leave no doubt that state legislation and taxing measures which by their necessary operation and effect discriminate against capital invested in national bank shares in the manner described are MINNESOTA v. FIRST NATIONAL BANK. 561 548 ’ Syllabus. intended to be forbidden. The questions here considered arising from the application of an ad valorem tax are not affected by the amendment of § 5219 by the Act of March 4, 1923, c. 267, 42 Stat. 1499, which permits in lieu of the ad valorem tax on shares of national banks either a non-discriminatory tax on the income of national banks or on the income derived from their shares. Judgment reversed. MINNESOTA v. FIRST NATIONAL BANK OF ST. PAUL. CERTIORARI TO THE SUPREME COURT OF THE STATE OF MINNESOTA. No. 245. Argued December 13, 1926.—Decided March 21, 1927. 1. The taxation of national bank shares, authorized by Rev. Stats. § 5219, is against the holders of the shares and is to be measured by the value of the shares, and not by the assets of the bank without deducting its liabilities. P. 564. 2. A tax on national bank shares at a greater rate than that imposed on competing credits in the hands of individuals can not be sustained upon the ground that the discrimination is removed in practice by deducting liabilities of the bank from its assets in valuing its shares, while allowing no deduction of their liabilities to individuals in valuing their credits. P. 564. 3. The shares of corporations employing capital in the note brokerage business or in buying and selling securities are “ moneyed capital in the hands of individual citizens ” (R. S. § 5219), i. e., the individuals holding the shares. P. 566. 4. The competition guarded against by § 5219 may arise from the employment of capital invested in a business, even though the competition be with some but’ not all phases of the business of national banks, or it may arise from the employment of capital invested by institutions or individuals in particular operations or investments like those of national banks. P. 566. 5. The evidence sustains a finding by the state court that moneyed capital in the hands of individuals was in competition with the business of national banks, including the plaintiff. P. 567. 42847°—27---36 562 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. 6. Surplus capital of individuals seeking investment and reinvestment in bonds, mortgages, and other evidences of indebtedness, in competition with the capital of national banks, is moneyed capital coming into competition with the business of national banks, within the meaning of Rev. Stats. § 5219. P. 568. 164 Minn. 550, affirmed. Certiorari (269 U. S. 550) to a judgment of the Supreme Court of Minnesota which affirmed a judgment for the bank in an action brought against it by the State to recover taxes assessed against its shareholders. Mr. Patrick J. Ryan, with whom Messrs. Clifford L. Hilton, Attorney General of Minnesota, G. A. Youngquist, Assistant Attorney General, Harry H. Peterson, and Roy A. MacDonald were on the brief, for petitioner. Mr. Thomas D. O’Brien, with whom Messrs. Alexander E. Horn and Edward S. Stringer were on the brief, for respondent. Mr. Justice Stone delivered the opinion of the Court. The State of Minnesota, the petitioner, brought suit in the district court of Ramsey County, Minnesota, to recover from the First National Bank of St. Paul, the respondent, taxes assessed against its shareholders for the years 1921 and 1922. Respondent resisted the payment of the tax on the ground that the assessment was at a higher rate than that on moneyed capital employed in competition with national banks and hence prohibited by § 5219 of the Revised Statutes of the United States. The trial court gave judgment for petitioner. On appeal judgment was reversed by the Supreme Court of Minnesota and a new trial ordered. 164 Minn. 235. Upon the second trial, had upon the record of the first, the district court held that at the time of the assessment of the taxes in question “ a substantial and relatively material portion of the money and credits so listed and assessed in said MINNESOTA v. FIRST NATIONAL BANK. 563 561 Opinion of the Court. Ramsey County consisted of moneyed capital in the hands of individual citizens of said county, coming into competition with the business of national banks in said county, and with the business of said defendant.” Judgment in respondent’s favor was affirmed by the Supreme Court of Minnesota, 164 Minn. 251. This Court granted certiorari. 269 U. S. 550; Jud. Code, § 237 (b). The questions raised are similar to those considered in First National Bank of Hartford v. City of Hartford, ante, p. 548, and may be disposed of by the application to the present facts of the principles there considered. Under the Minnesota statutes, shares of national banks and the moneyed capital of banks or mortgage loan companies organized under the laws of the state are assessed and taxed at forty per cent, of their full value in the district where located. Gen. Stat. 1923, § 2023; Laws of 1921, c. 416. Money and credits are taxed at the rate of three mills on the dollar of their full cash value and are exempt from all other taxation. Gen. Stat. 1913, § 2316; Laws of 1911, c. 285. Mortgages upon real estate and executory contracts for the sale of real estate are separately taxed at a lower rate; 15 cents per one hundred dollars where the period to run is for five years or less, and 25 cents per one hundred dollars on mortgages and contracts for a longer period. Gen. Stat. 1913, § 2301, et seq.; Laws of 1921, c. 445. Money is defined as gold and silver coin, all forms of currency, and all deposits subject to withdrawal on demand. Credits include every demand for money or other valuable thing. Gen. Stat. 1923, § 1980; Laws of 1917, c. 130. Under these statutes money and credits, as defined, are taxed at the three-mill rate and mortgages on real estate at a lesser rate. It appears that the tax assessed upon the shares of respondent was sixty-seven mills in 1921 and sixty-one and one-half mills in 1922. Although based upon a forty per cent, valuation, the actual rate upon the shares was 564 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. higher than the prescribed tax of three mills per dollar of full valuation of money and credits and therefore was discriminatory. Petitioner argues that in its actual operation, the tax on national bank shares is no greater than the tax on credits, since under the statute individuals are taxed at the rate of three mills upon the full value of their credits without deducting their liabilities, whereas in taxing bank shares, the liabilities of the banks are deducted from their assets in ascertaining the forty per cent, valuation of .their shares. Therefore, it is urged, if bank shares were taxed at the same rate without deducting the bank’s liabilities in ascertaining the value of their shares, the amount of the tax would be approximately the same. This argument ignores the fact that the tax authorized by § 5219 is against the holders of the bank shares and is measured by the value of the shares, and not by the assets of the bank without deduction of its liabilities, Des Moines National Bank v. Fairweather, 263 U. S. 103, and that the bank share tax must be compared with the tax assessed on competing moneyed capital of individuals invested in credits, or the tax on capital invested by individuals in the shares of corporations whose business competes with that of national banks. Mercantile Bank v. New York, 121 U. S. 138, 156, 157; First National Bank v. Anderson, 269 U. S. 341, 348. Thus compared, the actual tax imposed upon the shares of respondent, like the tax imposed upon credits in the hands of individuals, is assessed without deducting the liabilities of their individual owners, but at different rates. This discrimination is prohibited by § 5219 if moneyed capital in the hands of individuals in Minnesota is employed in substantial competition with national banks within the state. The evidence shows that there were money and credits listed for taxation in the entire state during each of the years in question in excess of $400,000,000, exclusive of municipal bonds and recorded real estate mortgages, and MINNESOTA v. FIRST NATIONAL BANK. 565 561 Opinion of the Court. in Ramsey County alone, where respondent conducts its banking business, there were like money and credits in excess of $83,000,000, all of which were subject to the three-mill tax. The evidence shows that in Ramsey County there were listed for taxation for 1921 in the hands of individuals, promissory notes amounting to $2,481,446, and bonds, exclusive of tax exempt bonds and real estate mortgages to $7,595,975; for 1922, notes to $1,648,810, bonds to $9,931,955. There was invested in those years in real estate mortgages in Minnesota over $185,000,000 annually. The investment of national banks in Minnesota in those years in real estate mortgages was in excess of $19,000,000; in United States government bonds in excess of $41,000,000, and in other securities $33,800,000. The share value of national banks in Minnesota in those years, not including real estate, was a little more than $60,000,000, and less than two-thirds of their total investment in the securities mentioned. Note brokers within the state in those years made loans to their customers upon paper which they sell to banks and other investors, amounting to as much as $100,000,000 annually. Much of this paper is sold outside of the state, but the amount sold to banks and to individuals within the state is substantial. One class of this paper known as “ cattle loan paper ” exceeded $22,000,000 annually in the years in question, and of this $13,000,000 was sold to banks, corporations, firms and individuals in Minnesota. The amount shown to have been sold to individuals approximated $1,000,000. Eleven business concerns to whom respondent made loans, borrowed from their own officers and employers in one of the years in question about $1,500,000. Individuals and corporations using substantial capital are engaged within the state in business as investment houses, dealing in bonds and mortgages, such as normally enter into the business of banking. Two such corpora- 566 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. tions in Ramsey County had a capital aggregating $2,250,-000. One of them sold $13,000,000 of bonds in Minnesota in 1922, and had sold prior to May 1,1921, mortgages which were still outstanding aggregating more than $25,000,000. Taken as a whole, the evidence tends to show without material contradiction that there is a large amount of moneyed capital in the state employed in normal banking activities such as loans, purchases and sale of notes, bonds and real estate mortgages, and that large amounts of capital are invested and reinvested in such securities by individual investors within the state. But petitioner asserts that it does not appear from the record whether those engaged in the business of note brokers or in the business of acquiring and selling securities are individuals or corporations, and the amount of capital employed by any of them is not indicated. While this assertion is not borne out completely by the record, in the view we take, its truth is not of controlling consequence. The businesses and activities described could not be carried on in the volume indicated without the employment of large amounts of capital and in fact some corporations engaged in these activities were shown to have a large capitalization. It was not necessary that the particular amounts be specified. That capital, if invested in the business of individuals, is moneyed capital in the hands of individual citizens, within the meaning of § 5219. If invested in corporations, as appears in some instances, the share capital in the hands of shareholders is likewise moneyed capital within the meaning of that section. It is said also that the evidence as to individuals was that large amounts of credits, including bonds, mortgages and notes were acquired by individuals by loan or purchase in the state and county, but that there is no evidence tending to show that any of these securities were held or employed by individals in banking or investment business MINNESOTA v. FIRST NATIONAL BANK. 567 561 Opinion of the Court. or in any other business. But as we have held in First National Bank of Hartford v. City of Hartford, the competition guarded against by § 5219 may arise either from the employment of capital invested in a business, even though the competition be with some but not all phases of the business of national banks, or it may arise from the employment of capital invested by institutions or individuals in particular operations or investments like those of national banks. It is also urged that the record does not admit of a finding that the funds invested in these credits come into competition with national banks within the meaning of § 5219. To this it is answered by respondent that the court is required to take judicial notice of general conditions to which the law applies and that the taxing laws of Minnesota construed in the light of conditions generally known, show upon their face that they create a discrimination against national banks not permitted by the federal act. But it is unnecessary for us to enter upon the field of judicial notice, for it clearly appears from the evidence, as the court below found, that a large proportion of these investments consisted of investments of individuals out of surplus funds which they were investing and reinvesting in bonds, mortgages and other evidences of indebtedness and that these transactions or continued activities are such as normally constitute an important part of the business of banking as conducted by respondent and other national banks in Minnesota. There is direct evidence, also, that the investments of individuals in this type of security aggregating large amounts lessens the opportunity for the investment of capital by national banks. The only witness called by petitioner admitted that to some extent such competition existed. In this state of the record we think the findings of the state court are supported by the evidence. 568 OCTOBER TERM, 1926. Counsel for Parties. 273 U. S. That capital of individuals thus seeking investment and reinvestment in competition with the capital in national banks is moneyed capital coming into competition with the business of national banks within the meaning of § 5219 is the effect of our decision in First National Bank of Hartford v. City of Hartford, supra, and other cases there considered. Judgment affirmed. GEORGETOWN NATIONAL BANK v. McFARLAND ET AL. ERROR TO THE COURT OF APPEALS OF THE STATE OF KENTUCKY. No. 78. Argued December 13, 1926.—Decided March 21, 1927. Upon the question of fact whether capital invested by individuals in bonds and other securities, was so invested as to come in competition with national banks (Rev. Stats. § 5219), this Court will accept the negative finding of the state court, where the evidence is in some particulars conflicting and the finding is supported by evidence and not certainly against the weight of evidence. P. 570. So held where the evidence fell short of establishing that the capital was employed substantially as in the loan and investment features of banking in making investments by way of loan or discount or in notes, bonds, and other securities, with a view to sale or repayment and reinvestment. 208 Ky. 7, affirmed. Error to a judgment of the Court of Appeals of Kentucky which reversed a judgment for the plaintiff in a suit to enjoin the sheriff and other taxing officials of Scott County, Kentucky, from assessing or collecting taxes on the shares of the Bank. Mr. T. Kennedy Helm, with whom Messrs. J. Craig Bradley, Edmund F, Trabue, Victor A. Bradley, James GEORGETOWN BANK v. McFARLAND. 569 568 Opinion of the Court. Bradley, and James W. Stites were on the brief, for plaintiff in error. Mr. H. Church Ford, with whom Messrs. James B. Finnell and W. S. Kelly were on the brief, for defendants in error. Mr. Justice Stone delivered the opinion of the Court. The plaintiff in error, a national banking association located in Scott County, Kentucky, brought suit in the circuit court of that county to enjoin defendants in error, tax officials of the county, from assessing or collecting taxes on the shares of stock of plaintiff in error on the ground that the assessment and tax were at a higher rate than that assessed on moneyed capital employed in competition with the business of national banks, and hence prohibited by § 5219 of the Revised Statutes of the United States. Judgment for the plaintiff was reversed by the Court of Appeals of Kentucky. The case comes here on writ of error and.disposition of it may be made upon the principles applied in First National Bank of Hartford v. City of Hartford, ante, p. 548. By § 4019a, sub-section 10 (Carroll Ky. Stat. 1922), money in hand, notes, bonds and other credits, whether secured by mortgage, pledge or otherwise, or unsecured, are subject to taxation for state purposes only at the rate of forty cents per one hundred dollars. By § 4092 of the same act, shares in national banks, state banks and trust companies are placed in a separate class and made subject both to the state tax at the forty-cent rate and to local taxes as well. The statute thus discriminates in favor of moneyed capital in the form of credits which are subject only to the state tax. Plaintiff in error, seeking to establish that the favored capital was in competition with national banks, relied 570 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. principally upon the proof that there were substantial amounts of capital invested in the state by individuals in bonds, notes, accounts and mortgages, aggregating approximately $1,500,000, which it is contended represents moneyed capital in competition with national banks. But plaintiff made no attempt to show that there were other businesses or courses of investment in the state employing moneyed capital in competition with its business or that of other national banks. The evidence with respect to capital invested by individuals, taken as a whole, falls short of establishing that the capital thus used is employed substantially as in the loan and investment features of banking in making investments by way of loan or discount or in notes, bonds and other securities, with a view to sale or repayment and reinvestment. The Court of Appeals of Kentucky, following the state practice, reviewed the evidence, concluding from it that “ no material part of the capital held by the individuals is so invested as to come in competition with the national banks.” The evidence is set forth in the record. In some particulars it is conflicting and the conflicts are such that their resolution by the Court of Appeals should be accepted by us. It cannot be said either that the finding is without evidence to support it or that it certainly is against the weight of the evidence. In the course of the opinion the Court of Appeals gave more attention than we think justified to the difference between short-time and long-time loans and to the readiness with which the banks obtain loans, notwithstanding the competition alleged, but even after making due allowance for this we think the finding should not be disturbed. It does not depart from but gives effect to the principles announced in the decision just made in First National Bank of Hartford v, City of Hartford, Affirmed. UNITED STATES v. SHELBY IRON CO. 571 Statement of the Case. UNITED STATES v. SHELBY IRON COMPANY. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 123. Argued January 13, 1927.—Decided April 11, 1927. 1. A contract, by which land on which improvements have been erected with money advanced by one party to the other is to be deeded to the lender absolutely, and the borrower, as his lessee, in consideration of “ rentals ” amounting to the aggregate debt, is to have possession and, upon full payment, is to receive a reconveyance of the land and improvements, but, in case of default, may have his rights forfeited by re-entry of the lender, is an equitable mortgage for security of the money unpaid. P. 578. 2. In such case, where the lender, having taken over the premises on the borrower’s default, finds that the deed he received is defective, his proper remedy is not to reform it, but to seek a sale under the mortgage, and distribution of the proceeds to those entitled. P. 578. 3. A contract made by the United States for erection and operation of an acetic acid and wood alcohol plant on land to be deeded to it recited that the wood required in the operation of the plant would be obtained by the other party under another contract between that party and a stranger to the first mentioned contract. Held that this did not constructively notify the United States of the stranger’s rights in the land, as revealed by the contract so referred to, since the matter mentioned in the recital was not such as to arouse any inquiry concerning that title. P. 580. 4. Where a land-owner, as part of a contract, agrees to convey land to the other party for use in performance of the contract, but to be reconveyed thereafter free and clear of liens, and the contract permits the grantee to mortgage and relies only on his responsibility to clear the title before reconveyance, an equitable mortgage made by the grantee in pursuance of the purposes for which the contract was made, and remaining unpaid because of his insolvency, takes priority over the equity of the grantor in the land. So held where the attempted conveyance of the land was inoperative because of a mistake, so that the legal title remained in the grantor. P. 581. 4 F. (2d) 829, reversed. Appeal from a decree of the Circuit Court of Appeals which affirmed a decree of the District Court adverse to 572 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. the United States in a suit in which it sought to quiet title to a piece of land in Alabama as against the corporation above named, of New Jersey, and another called the Shelby Iron Company of Alabama. The decree denied the relief and declared the title and right of possession, as between the plaintiff and the Shelby Iron Company of New Jersey, to be in the latter; but it gave the plaintiff six months in which to remove from the land buildings and equipment constituting a plant erected thereon by the Shelby Chemical Company under a contract with the plaintiff. Mr. Gardner P. Lloyd, Special Assistant to the Attorney General, with whom Solicitor General Mitchell, and Messrs. James E. Morrisette and Randolph S. Collins, Attorneys in the Department of Justice, were on the brief, for the United States. Mr. Edward H. Cabaniss for appellees. Mr. Chief Justice Taft delivered the opinion of the Court. This is a controversy over priority of equities in fifteen acres of land in Alabama, with a wood distillation plant thereon, between the United States and the Shelby Iron Company of New Jersey. The case involves the construction of a contract between the United States and the Shelby Chemical Company, on the one hand, and of a contract between the latter and the Shelby Iron Company of New Jersey, on the other. The first was for the construction and operation of the plant on the land to be conveyed by the Chemical Company to the Government, with money to be furnished by the latter, for the production of acetate of lime and methyl alcohol for use in the War. The second was entered into between the Chemical Company and the Shelby Iron Company of New Jersey in anticipation of the first. The Iron Company agreed to UNITED STATES v, SHELBY IRON CO. 573 571 Opinion of the Court. convey to the Chemical Company the needed land, which was near the works of the Iron Company, and to furnish hard wood, water, workmen’s houses and power necessary in the operation of the plant. The benefit which the Iron Company was to derive from the arrangement was the cheapness of cost of the charcoal to be made by the Chemical Company as a by-product of the process of distillation, and to be sold at a fixed price to the Iron Company, for use in its blast furnaces situated in a large tract of timber land, of which the Iron Company was the owner, and of which the fifteen acres here in question was a part. The Chemical Company executed a warranty deed of the fifteen acres, to the Government, in intended compliance with its contract; but the Iron Company had failed to convey the land to the Chemical Company as agreed by it. A deed was actually executed to the Chemical Company by an Alabama Company of the same name, instead of the New Jersey Company that owned the land. The Alabama Company, a former owner of the land, was then an inactive company, the stock of which was owned by the New Jersey Company, and the directors in the two companies were the same. So the Government’s legal title failed for misdescription of the grantor. This suit was a bill in equity to quiet title in the United States against the two companies, the Alabama Company and the New Jersey Company. The New Jersey Company, relying on the misdescription, answered and denied the title of the United States. Thereupon, the Government amended its bill and asked that the deed be reformed. Then the New Jersey Company, which we shall hereafter call the Iron Company, answered by a recital of facts which, it claimed, showed that it had an equity in the fifteen acres of land stronger in right than that of the United States. This constitutes the issue in this case, for the mistake and misdescription are admitted and the 574: OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. right of the United States to reformation of the deed is conceded, but for this claim. The contract between the Iron Company and the Chemical Company was made April 8, 1918, and provided that the Iron Company should by warranty deed, free of all liens and encumbrances, for a nominal consideration, provide sufficient ground on which to build the plant of the Chemical Company. In a subsequent clause, it says: “ Inasmuch as the United States Government will be financially interested in the construction of the Chemical Company’s plant, it is expressly agreed that said real estate may be deeded to and vested in the United States Government during the period of a contract made between the Chemical Company and the United States Government, said contract to extend for the duration of the war.” And further: “ It is understood that the Chemical Company is about to construct its plant under a contract with the United States Government, by the terms of which the Chemical Company is to become the owner of the land, buildings, equipment and improvements, if an enabling statute to that effect shall be passed by the Congress of the United States. Therefore, it is distinctly agreed that the foregoing provision as to reconveyance of the lands is subject to the obtaining of the title to said lands by the Chemical Company from the United States Government.” By the eighth paragraph, it was provided that the contract should last until April 1, 1933, with the right of the Iron Company to extend it further for five years upon notice to the Chemical Company; and that at the end of the contract, or its renewal, the Chemical Company should reconvey to the Iron Company all of the lands conveyed to it by the Iron Company, without cost to it, free and clear of any encumbrances or liens whatsoever, or, if there were any mortgages on the same not yet due, the Chemical Company should pay over to the Iron Company the amount thereof, or the amount of any bonds outstand- UNITED STATES v. SHELBY IRON CO. 575 571 Opinion of the Court. ing thereunder, with any accrued interest thereon, and should, if the Iron Company so elected, sell to it all the improvements, equipment and other, personal property placed on the lands by the Chemical Company. Thereafter, on April 23, 1918, the government contract with the Chemical Company was made. It was estimated that the plant would cost over $400,000, which the United States agreed to advance and reimburse itself by deductions from payments to be made from the sale by the Chemical Company to the Government of the acetate of lime and the methyl alcohol. Among the preliminary recitals in the contract is this: “ Whereas the contractor has a contract with the Shelby Iron Company of Shelby County, Alabama, according to the terms of which the Shelby Chemical Company shall receive all the lumber it may require from timber land owned and leased by the Shelby Iron Company in return for all charcoal derived therefrom.” This recital becomes important on the question of notice hereafter to be considered. The government contract, in its first article, provided that the Chemical Company, the contractor, was to convey to the United States a tract of land at Shelby, Alabama, of adequate size and suitable location, for the erection of the plant thereafter described. The conveyance was to be made subject to and upon the completion of an opinion by the Attorney General that, by the conveyance, the Government would derive an absolute title to the premises in fee simple, free and clear of all encumbrances, and that the United States should have the right to expend money for the erection of improvements thereon By article II the contractor agreed to erect and construct for the Government, on the land, a properly equipped wood chemical plant with a certain capacity, to be completed in five months, to be paid for by the Govern- 576 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. ment at cost, the particulars of construction to be embodied in a separate contract. The third article provided for the retention of 40 per cent, of the price of all sales to the Government of the products of the manufacture, to yield 6 per cent, interest on the government investment in the plant and to constitute a depreciation and amortization fund for the benefit of the Government. By the fourth article the contractor agreed to sell and deliver to the Government the entire output of acetate of lime and methyl alcohol, and the Government agreed to buy it, during a period of 18 months and then for the duration of the War, at certain agreed prices and on certain conditions. By the sixth article it was provided that, when the depreciation and amortization fund and the purchase fund provided should together equal the cost to the Government, with interest at 6 per cent., of the Government’s investment, or at any earlier date at the option of the contractor, the Government should sell to the contractor, and the contractor should purchase the plant, machinery and equipment, at the then fair market value, to be fixed by appraisement. The obligation of the Government to sell the plant was conditioned upon its having legal authority to make such sale and conveyance. Article VII provided that the Government might take possession of the plant and operate it, on failure of the contractor to comply with the terms of the contract, but its right to operate should cease and terminate at the end of the War. If at that time the sale of the plant to the contractor should have been consummated, the Government was to surrender possession to the contractor, and if the plant was then still owned by the Government, it should at its own expense, within six months from the end of the War, remove all buildings and equipment, constituting such plant, from the ground upon which the same UNITED STATES v. SHELBY IRON CO. 577 571 Opinion of the Court. were erected, and should without further consideration reconvey such ground to the contractor. Article XVII provided that, in the event of an armistice, the Government at its option might terminate the agreement; but in such event the contractor should receive from the Government the unpaid purchase price of the product then actually manufactured, and the contractor should receive further from the Government a sum sufficient to protect it against its actual net expenditures and actual net outstanding obligations incurred in the manufacture. Then the value of the plant, machinery and equipment should be determined by appraisal, as already provided, and the Government should sell and the contractor should purchase the plant and equipment at the appraised value; and, in making the settlement, the contractor should be given credit on account of the purchase price for the 35 per cent, of the purchase price of the products theretofore sold to the Government and by it retained for security. After the plant had been partially constructed, and $260,000 was still owing to the Government from the Chemical Company, a new contract was made between them, dated January 25, 1919, whereby the Government should become the absolute owner of the property free of all claims, and the Government should lease the property to the contractor for three years, the contractor to pay to the Government $50,000 down on account of the rental, and in one year $50,000 more, and in two years $75,000, and in three years $85,000, all of which was to apply as rental for the property. The company was to pay all the taxes. It was further provided that the contractor should complete the plant and, at the expiration of the three years, the Government, for the consideration of one dollar, would convey the whole property to the contractor; or should the contractor, not being then in default for 42847°—27--37 578 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. any unpaid payments required to be paid by it under the terms of the contract, desire at any time to purchase the property, the Government would sell it for a sum equal to the difference between $260,000 and the total sum of rents then paid. It was agreed in the contract that, should the contractor at any time default in any of the payments required to be made to the Government in the lease, the Government might waive such default, or treat and regard the lease and obligation and privilege to purchase as forfeited, or treat and regard the lease as a continuing legal and binding obligation, but the obligation and privilege to purchase was to be forfeited. The president of the Iron Company denies that it had knowledge of this second contract. The plant was completed under the second contract, and charcoal was made and delivered to the Iron Company till 1922 in March. The Government took over the plant in December, 1922, and the Chemical Company became a bankrupt in 1923. It is clear that the effect of the purported contract of lease of January, 1919, was that of an equitable mortgage. The rentals to be paid were the installments of the amount due under the original contract from the Chemical Company for the amount of money which the Government had advanced, less that which it had already received, and upon payment of the rental stipulated, the title was to revert to the Chemical Company, while the Government reserved the power to take over the property in case of default or bankruptcy of the Chemical Company. Its default gave to the Government the right to enforce against the land and the plant the debt due under this equitable mortgage. Peugh v. Davis, 96 U. S. 332, 336; Robinson v. Farrelly, 16 Ala. 472; Lowery v. Peterson, 75 Ala. 109, 111; Moses v. Johnson, 88 Ala. 517, 520; Love v. Butler, 129 Ala. 531, 537, 538. The remedy which we think the Government is entitled to, unless it is to be defeated for the reasons about to be UNITED STATES v. SHELBY IRON CO. 579 571 Opinion of the Court. examined, is not the reforming of a deed and a decree compelling the Shelby Iron Company of New Jersey to substitute its own deed to the Chemical Company for the useless and void deed of the Shelby Iron Company of Alabama. It is rather to give to the Government leave to reframe its pleadings so as to set up therein its ownership of an equitable mortgage upon the land and the plant, to be enforced by a sale thereof and the proper distribution of the proceeds. Of course, we might affirm the action of the Circuit Court of Appeals, with a provision in the affirmance that it should be without prejudice to the beginning of an original suit by a new bill in equity setting forth the equitable mortgage as against the Iron Company, and asking its enforcement, and, if need be, its foreclosure against the land and the plant. We think, however, that it is wiser, and better, and shorter, to end the litigation in this one proceeding. The Iron Company objects to this action by the Court, on the ground that it has conflicting equitable rights that should defeat any recovery Cinder the alleged mortgage. It insists that under the original contract, as construed in the light of its contract with the Chemical Company, the title of the Government to the land and plant, even if it had been perfected as a legal title, was to terminate at the end of the War, and that the Iron Company was entitled as against the Chemical Company and the Government to the reconveyance of the land. It further insists, that the Government knew of this limitation upon its right to retain the ownership of the property as shown in the contract between the Iron Company and the Chemical Company, and that its only security was in the power reserved to it by the original contract between it and the Chemical Company to remove from the land the plant, within six months, and this it has not exercised and refuses to do so. It shows, that it expended $50,000 in preparing for the 580 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. changes due to the installation of the plant by the Government, and has suffered loss by failure of the Chemical Company to comply with its contract. It further says, that the fifteen acres of land is so related to the larger tract of which it was a part that its use and control are essential to the Iron Company’s operation of its blast furnace, and that it offered to pay the balance of $210,000 for the transfer to it of the Government’s whole interest in the land and plant. It urges that as between it and the Chemical Company, it became entitled to a reconveyance and to take possession of the land because of the breach and bankruptcy of the Chemical Company as a termination of the contract, as if it had expired by limitation. This presents an issue as to the notice which the Government had of the Iron Company’s claim under its contract. The argument of the Iron Company is, that the recital in the Government’s contract that the Chemical Company would receive, under a contract with the Iron Company, all the lumber it might require from timber lands of the Iron Company in return for all charcoal derived therefrom, put the United States on notice of everything contained in the contract between the Chemical Company and the Iron Company in respect of the title to the land and the future plant. It relies on the principle that the law imputes knowledge when opportunity and interest, coupled with reasonable care, would necessarily impart it, and that, where one paper refers to another paper within the power of the party, it gives notice of the contents of the other paper to that party. We have no quarrel with this rule as to constructive notice, but we do not think that it applies here. The reference in the first paper, to require examination of the second, must be one that indicates that both are dealing with a subject matter to which inquiry would be relevant. Here the relevant object of the inquiry would have been the title UNITED STATES v. SHELBY IRON CO. 581 571 Opinion of the Court. to the land and the plant upon it. The recital does not refer either to the land or the title to it, but to the furnishing of wood by the Iron Company. To charge one with notice, the facts must be such as ordinarily to excite inquiry as to the particular fact to be elicited. Rogers v. Rawlings, 298 Fed. 683; Mueller v. Engeln, 75 Ky. 441; Hyde Park Supply Company v. Peck-Williamson Heating Company, 176 Ky. 513; 2 Pomeroy’s Eq., § 629, pp. 1208, 1209. We think, therefore, that the question of notice must be reexamined, and that the issue must be not of implied notice but of actual notice. It was contended that one of the officers acting for the Government was in such a position that he probably knew what the contents and the effect of the contract between the Iron Company and the Chemical Company were in reference to the tenure of the Government in the land, and that the fact that he was not called to testify on the subject was a circumstance tending to sustain the claim that the Government had actual notice. The Iron Company will have the opportunity to present this and other evidence to the trial court, upon the issue of such actual notice, when the pleadings are reframed. Counsel for the Government make a further argument to show that, even if the Government had had notice of the contents of the contract between the Iron Company and the Chemical Company, its purpose and effect could not in any way impair the effect of the equitable mortgage the Government acquired under its second contract and so-called lease to the Chemical Company. They say that the Iron Company, in its contract with the Chemical Company, and in the 8th paragraph thereof, manifested clearly an expectation and consent that the Chemical Company might encumber the land and the plant with liens or mortgages, and relied only on the credit and 582 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. obligation of the Chemical Company, in reconveying to the Iron Company, to clear off mortgage liens or bonds which the Iron Company evidently thought the Chemical Company might create. If this is the correct view, an equitable mortgage of the Government of the land and the plant, in which it had an interest to the extent of $260,000, must be clearly superior to the equity of the Iron Company growing out of the obligation of the Chemical Company to reconvey the land to the Iron Company. Neither the District Court nor the Circuit Court of Appeals considered this phase of the case. It may not have been presented to them. Their consideration was chiefly given to the issue of misdescription, and to the meaning of the clauses providing for reconveyance of the land and improvements by the Government, in the contract between the Government and the Chemical Company. We do not now consider and pass upon the contention of the Government in these regards. We only refer to it to have it clearly understood that, when the cause goes back, nothing in what we have said shall prevent a showing of actual notice to the Government of the claim of the equity of the Iron Company in the land, by virtue of its contract with the Chemical Company on the one hand, or the construction of the 8th paragraph of that contract, as a reason for maintaining the priority of the Government’s equitable mortgage, whether it had notice of the Iron Company’s contract or not, on the other. The decree of the Circuit Court of Appeals will therefore be reversed and the cause remanded to the District Court for a reframing of the pleadings and for further proceedings not inconsistent with this opinion. Reversed. SHIELDS v. UNITED STATES. Opinion of the Court. 583 SHIELDS v. UNITED STATES. ON PETITION FOR A WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 944. Petition submitted March 21,1927.—Decided April 11,1927. 1. Where a respondent to a petition for certiorari advises the Court that he can find no ground for opposition, and, therefore, will file no opposing brief and, if the writ issues, will submit the case without further hearing, the Court, upon granting the writ, may proceed at once to a decision of the merits. P. 587. 2. A request in chambers, joined in by the district attorney and counsel for defendants in a criminal case, that the jury be held in deliberation until they should agree upon a verdict, should not be construed as authorizing the judge, out of court, and without the presence of the defendants or their counsel, to receive from the jury a verdict announcing their findings of agreement as to some and disagreement as to other defendants, and to return a written instruction that they also find guilty or not guilty those as to whom they had disagreed. P. 587. 3. When a jury has retired to consider its verdict, written instructions should not be sent without notice to the defendant or his counsel. P. 588. 17 F. (2d) 69, reversed. Petition for a writ of certiorari to review a judgment of the Circuit Court of Appeals affirming a conviction of conspiracy to violate the Prohibition Act. For reasons explained in the opinion, granting of the writ is accompanied by a disposition of the case under it. Mr. E. Lowry Humes for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. John J. Byrne, Attorney in the Department of Justice, for the United States. Mr. Chief Justice Taft delivered the opinion of the Court. The question here for review is the judgment of the Third Circuit Court of Appeals, of February 14, 1927. 584 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. A petition for certiorari was filed in this Court February 28, 1927, and is this day granted. For reasons to be explained, we proceed at once to consider the case on its merits. Shields, the petitioner, was indicted and tried with eight or nine others for conspiracy to violate the Prohibition Act, and also for direct violations of the Act; He was convicted of conspiracy and acquitted of the other charges. The case had been submitted to the jury, February 12, 1926. Before the court convened the next morning, the jury still being out, counsel for the defendants and the Assistant United States Attorney in charge of the prosecution visited the trial judge in chambers and requested that the jury be held in deliberation until they should agree upon a verdict. Shortly after the opening of the court, the jury returned for additional instructions on the subject of entrapment, and having received the same, retired for further deliberation. At 2.30 o’clock that afternoon, the jury again returned to court, in the absence of petitioner and his counsel, and reported that they could not agree. What instructions, if any, were then given the jury the record does not disclose. It appears that the jury again retired to deliberate, and between 4.30 and 5.00 o’clock in the afternoon sent from their jury room to the judge in chambers the following written communication: “We, the jury, find the defendants John G. Emmer-ling, Charles Lynch not guilty on all counts, E. W. Hardison, J. E. Hunter and J. L. Simler guilty on all counts. Daniel J. Shields, Harry Widman, J. M. Gastman unable to agree. Signed, E. B. Milligan, Foreman.” The judge from his chambers sent back the following written reply: “ The jury will have to find also whether Shields, Widman and Gastman are guilty or not guilty. F. P. Schoonmaker, Judge.” SHIELDS v. UNITED STATES. 585 583 Opinion of the Court. These communications were not made in open court, and neither the petitioner Shields nor his counsel was present, nor were they advised of them. Shortly after, the jury returned in court and announced the following verdict: “ We, the jury, find that the defendants John G. Em-merling, Charles Lynch, not guilty on all counts. E. W. Hardison, J. L. Simler, J. E. Hunter guilty on all four counts. Daniel J. Shields, Harry Widman, J. M. Gastman guilty on first count and recommended to mercy of court. Not guilty on 2nd, 3rd and 4th counts, this 13th day of February, 1926. E. B. Milligan, Foreman.” Upon this verdict the court rendered its judgment sentencing Shields to pay a fine of $2,000 and to be imprisoned in jail for one year. Shields then filed in court a petition alleging that not until April 21, 1926, more than two months later, did he or his counsel have any knowledge of the tentative verdict sent by the jury to the judge in chambers, or of the reply thereto by the judge, and praying that he be allowed an exception to the action of the judge in sending the reply. The court refused to grant the petition, for the reason as stated by it, “ that counsel for the defendant, Daniel J. Shields, requested the court to hold the jury in deliberation until they should agree upon a verdict, and therefore when the court received the communication from the jury, it was returned with the instructions complained of, although it is true that the defendant’s counsel was not present when the communication was handed to the court from the jury. (Sgd) Per Curiam, S.” 586 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. An exception was allowed, however, to the foregoing refusal to grant an exception, the record reciting in this respect: “ Eo die an exception to the above refusal to grant an exception is hereby noted to the defendant, Daniel J. Shields. F. P. Schoonmaker, Judge.” Shields took the case to the Circuit Court of Appeals, assigning, among other errors the action of the District Court in sending the communication to the jury and the refusal of the court to grant an exception to that action. The Circuit Court of Appeals, in affirming the judgment, said: “ The justified reliance of Court on the request of counsel; avoidance of abortive mistrials and the timely administration of a court’s work, based on the verdict of a jury which had evidence to support it, all unite in making the case one where with one breath a court can not be asked by counsel to take a step in a case and later be convicted of error, because it has complied with such request, for as is said in 17 Corpus Juris 373-4, ‘A defendant in a criminal case can not complain of error which he himself has invited.’ ” The petitioner urges, first, that the request joined in by counsel for the defendants, that the jury be held in deliberation until they had reached a verdict, could not be properly construed as a consent that the court might communicate with the jury out of court and in the absence of the defendants and their counsel; second, that the action of the District Court in thus communicating with the jury was a denial to petitioner of due process of law; third, that the judgment of the Circuit Court of Appeals upholding that action is in conflict with the decision of this Court in Fillippon v. Albion Vein Slate Co., 250 IT. S. 76; fourth, that the instruction in the 587 SHIELDS V. UNITED STATES. Opinion of the Court. 583 communication to the jury that it “ will have to find also whether Shields, Widman and Gastman are guilty or not guilty,” was additionally erroneous because in violation of § 1036 of the Revised Statutes, which authorizes a jury to bring in a verdict as to those of the defendants regarding whom they are agreed, and declares that the case as to the other defendants may be tried by another jury; fifth, that in this respect the instruction of the District Court runs counter to the decision of this Court in Bucklin v. United States, 159 U. S. 682; and, sixth, that the direction to the jury to bring in a verdict of guilty or not guilty as to the three defendants named had the effect of coercing the jury into rendering a verdict which they were plainly reluctant to return. The Solicitor General advises us that, after a careful study of the record in this case, the Government is unable to find any satisfactory ground for opposing the petition for a writ of certiorari, and t that no brief in opposition will therefore be filed, and if the writ issues, the Government will submit the case without being heard further. In view of this, we deem it proper to dispose of the case at once. On the statement of the case as we have given it, we think the judgment of the Circuit Court of Appeals must be reversed on the first and third grounds urged, and the cause remanded to the District Court for a new trial. The joint request to the court, of counsel for the defendant and the Assistant District Attorney, to hold the jury in deliberation until they should agree upon a verdict, made in chambers without the presence of the defendant, cannot be extended beyond its exact terms. It did not include any agreement that the court should receive a communication from the jury and answer it without giving the defendant and his counsel an opportunity to be present in court to take such action as they might be advised, especially when the communication as 588 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. to the result of the deliberations of the jury showed a marked difference in the views which the jury had as to the guilt of the various defendants. Counsel, in making it, necessarily assumed, as they had a right to, that any communication from the jury would be made in open court, and that they must necessarily be offered an opportunity to withdraw the request already preferred, or to vary it. It is hardly fair to say that a general request to hold the jury for a verdict can be properly applied to such a situation as subsequently developed by the communication of the jury showing their views as to the various defendants. In the case of Fillippon v. Albion Vein Slate Co., 250 U. S. 76, which was a suit for damages for personal injuries, it appeared that, after the trial judge had completed his instructions and the jury had retired for deliberation, and while they were deliberating, they sent to the judge a written inquiry on the question of contributory negligence, to which the trial judge replied by sending a written instruction to the jury room, in the absence of the parties and their counsel and without their consent, and without calling the jury into open court. A new trial was ordered on this account. The Court said: “ Where a jury has retired to consider of its verdict, and supplementary instructions are required, either because asked for by the jury or for other reasons, they ought to be given either in the presence of counsel or after notice and an opportunity to be present; and written instructions ought not to be sent to the jury without notice to counsel and an opportunity to object.” If this be true in a civil case, a fortiori is it true in a criminal case. The request made to the court jointly by the counsel for the defendant and for the Government did not justify exception to the rule of orderly conduct 589 KELLEY v. OREGON. Opinion of the Court. 583 of jury trial entitling the defendant, especially in a criminal case, to be present from the time the jury is impaneled until its discharge after rendering the verdict. We reverse the judgment without reference to the other causes of error assigned. Reversed. KELLEY v. OREGON. ERROR TO THE SUPREME COURT OF THE STATE OF OREGON. No. 827. Argued March 9, 1927.—Decided April 11, 1927. 1. Contentions that a defendant, tried for murder, was deprived of rights under the Federal Constitution (due process of law,) by a charge of the state court concerning self-defense and by being kept in custody in and out of the court room during the trial, are frivolous. P. 590. 2. The proposition that, under the Fourteenth Amendment, one who has committed a murder while serving a term of imprisonment in a state penitentiary has a vested right to serve out his term before he can be executed for the murder, is likewise frivolous. P. 591. Writ of error to 118 Ore. 397, dismissed. Error to a judgment of the Supreme Court of Oregon sustaining a death sentence for murder. In one aspect of the case the writ of error is treated as an application for certiorari; which is denied. Mr. Will R. King for plaintiff in error, submitted. Mr. John H. Carson, with whom Mr. Willis S. Moore was on the brief, for defendant in error. Mr. Chief Justice Taft delivered the opinion of the Court. Ellsworth Kelley, plaintiff in error, James Willos and Tom Murray were jointly indicted by the grand jury of Marion County, Oregon, for the crime of murder in the 590 OCTOBER TERM, 1926. 273 U. S. Opinion of the Court. first degree, under the provisions of § 1893, Oregon Laws, as follows: “ If any person shall purposely, and of deliberate and premeditated malice, or in the commission or attempt to commit any rape, arson, robbery, or burglary, kill another, such person shall be deemed guilty of murder in the first degree.” At the time of the commission of the crime set forth in the indictment, Kelley and the two others accused with him were prisoners in the Oregon State Penitentiary at Salem, Oregon, and the crime was committed by them in their escape from that institution. John Sweeney, named in the indictment, was a guard at the institution and was slain in his attempt to prevent the escape. The plaintiff in error was arraigned upon the indictment in the manner prescribed by the laws of Oregon, and upon such arraignment he entered a plea of not guilty to the indictment. He and Willos were tried together. The cause came on regularly for trial. The jury returned into court a verdict of guilty as charged in the indictment, without recommendation. On October 30, 1925, plaintiff in error was sentenced to pay the penalty of death as by the law provided. Judgment was entered on the same day. Appeal was taken by the plaintiff in error to the Supreme Court, which affirmed the judgment of the trial court (State v. Kelley, 118 Ore. 397), and denied two petitions for rehearing. Thereupon the case came here upon writ of error allowed by the Chief Justice of the State Supreme Court. An examination of the record satisfies us that there is really no federal question in the case, and that the errors assigned purporting to raise questions under the Constitution of the United States are frivolous. An example of these may be given in the assignment of error that the rights of the defendant under the Federal Constitution were invaded by the charge of the court on the question 591 KELLEY V. OREGON. Opinion of the Court. • 589 of self-defense. It is difficult to see how, in any aspect of it, such a question could involve issues under the Federal Constitution, and certainly they do not here. Another assignment of error is to the fact that the plaintiff in error was constantly in the custody of the warden of the penitentiary, inside and outside of the court room, during the trial. It is argued that he was entitled to be free from any custody, in order that he might fully make his defense, and that this deprived him of due process. It is a new meaning attached to the requirement of due process of law that one who is serving in the penitentiary for a felony and while there commits a capital offense must, in order to secure a fair trial, be entirely freed from custody. Ponzi v. Fessenden, 258. U. S. 254, 265; State v. Wilson, 38 Conn. 126. There is no showing that he had not full opportunity to consult with counsel or that he was in any way prevented from securing needed witnesses. The assignment is wholly without merit. Finally, it is objected that as the plaintiff in error was under sentence to confinement in the penitentiary for twenty years, which had not expired when he committed this murder, he could not be executed until he had served his full term. Answering this objection, the Supreme Court of Oregon said: “ As stated, the defendants are both convicts imprisoned in the Oregon state penitentiary and it seems from the testimony that they had escaped from prison in other jurisdictions. The defendants claim that the sentence of death imposed upon them by the judgment of the court is forbidden by Section 1576, Or. L., reading thus: “ ‘ If the defendant is convicted of two or more crimes, before judgment on either, the judgment must be that the imprisonment upon any one may commence at the expiration of the imprisonment upon any other of such crimes; and if the defendant be in imprisonment upon a 592 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. previous judgment on a conviction for a crime, the judgment must be that the imprisonment must commence at the expiration of the term limited by such previous judgment.’ “ Their theory seems to be that owing to the fact of each of them being then under sentence to imprisonment for other offenses, the trial court had no jurisdiction to punish them for a crime committed while the pending imprisonment was in force. It will be noted that the section just quoted refers only to imprisonment and not to the penalty of death or fine. The section does not purport to exempt a defendant from trial and judgment for the commission of any crime during his confinement in the penitentiary. It would be shocking to all sense of justice and public security to say that a criminal confined in the penitentiary as punishment for his misdeeds could be licensed to commit other crimes with immunity; yet, that is the conclusion to which the argument of the defendants’ counsel will lead. If the jury had found such a verdict as would authorize their imprisonment, the section quoted would be the authority for the court to declare that the latest imprisonment should begin at the expiration of the term then being served by the defendants. The punishment of death is an entirely distinctive thing and is not included in the provisions of this section.” It is contended that this construction of the statute, in permitting one who has committed a murder while a convict in the penitentiary to be executed before his term has expired, deprives him of a right secured by the Fourteenth Amendment, in that due process of law secures to him as a privilege the serving out of his sentence before he shall be executed. It is doubtful whether this exception and assignment can be said to be directed to a ruling of the Supreme Court of Oregon such as to draw in question the validity of a statute of Oregon on the ground of its repugnancy to the Constitution, treaties or laws of the FORD v. UNITED STATES. 593 589 Syllabus. United States and sustain it, as required in § 237a of the Judicial Code, as amended, c. 229, 43 Stat. 936, 937, permitting a writ of error. But assuming that it does, or, if not, treating the writ of error as an application for certiorari, there is not the slightest ground for sustaining the assignment. A prisoner may certainly be tried, convicted and sentenced for another crime committed either prior to or during his imprisonment, and may suffer capital punishment and be executed during the term. The penitentiary is no sanctuary, and life in it does not confer immunity from capital punishment provided by law. He has no vested constitutional right to serve out his unexpired sentence. Chapman v. Scott, 10 Fed. (2d) 690, affirming the same case, 10 Fed. (2d) 156; Ponzi v. Fessenden, 258 U. S. 254; Rigor v. State, 101 Md. 465; State v. Wilson, 38 Conn. 126; Thomas v. People, 67 N. Y. 218, 225; Peri v. People, 65 Ill. 17; Commonwealth v. Ramunno, 219 Pa. St. 204; Kennedy v. Howard, 74 Ind. 87; Singleton v. State, 71 Miss. 782; Huffaker v. Commonwealth, 124 Ky. 115; Clifford v. Dryden, 31 Wash. 545; People v. Flynn, 7 Utah 378; Ex parte Ryan, 10 Nev. 261; State v. Keefe, 17 Wyo. 227, 252; Re Wetton, 1 Crompt. & J. 459; Regina v. Day, 3 F. & F. 526. The writ of error is dismissed and the certiorari is denied. FORD et al. v. UNITED STATES. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 312. Argued October 26, 27, 1926.—Decided April 11, 1927. 1. In an indictment charging conspiracy to commit offenses against laws of the United States, an allegation that it was also to violate a treaty (prescribing no offense) may be rejected as surplusage. P. 602. 42847°—27---38 594 OCTOBER TERM, 1926. Statement of the Case. 273 U. S. 2. Ignoring surplusage is not amending the indictment. P. 602. 3. An indictment charging a continuous conspiracy to commit offenses against the United States by introducing and transporting liquor in the United States in violation of the National Prohibition Act, and by importing it into the United States in violation of the Tariff Act, is not bad for duplicity. P. 602. 4. In determining the admissibility in a criminal case of evidence of a seizure of property and persons, questions of fact affecting the legality of the seizure are decided by the court without the jury. P. 605. 5. Where the District Court has jurisdiction of the offense charged, the question whether the defendants were wrongfully brought into its custody through an unlawful seizure on the high seas must be raised by a plea to the jurisdiction over their persons and is waived by a plea of not guilty. P. 606. 6. The treaty of May 22, 1924, with Great Britain, which, within limits stated, permits a British vessel in extraterritorial waters to be boarded and searched by United States authorities, and, if there is reasonable cause for belief that she has committed or is committing or attempting to commit an offense against the laws of the United States prohibiting the importation of alcoholic beverages, to be seized and taken into port “ for adjudication in accordance with such laws,”—should be construed liberally, in effectuation of its purpose, as contemplating that not only the ship but the cargo and the persons on board may be taken in for adjudication. Pp. 609, 618. 7. Principle of Expressio unius est exclusio alterius, considered. P. 611. 8. It is permissible under the treaty to prosecute the persons so seized and brought into the United States not only for illegal importation but also for conspiracy to commit that offense—where the conspiracy charged (under Crim. Code § 37) included as overt acts actual importation and an attempt. United States v. Rauscher, 119 U. S. 407, distinguished. Pp. 614, 616. 9. One may be guilty as a party to a conspiracy to import liquors into the United States in violation of the Prohibition Law, followed by overt acts in this country, although he was and remained outside of its territorial jurisdiction. P. 619. 10 F. (2d) 339, affirmed. Certiorari (271 U. S. 652) to a judgment of the Circuit Court of Appeals affirming a conviction of conspir- 595 FORD v. UNITED STATES. Argument for Petitioners. 593 acy to import liquor into the United States in violation of the Prohibition Law. See 3 F. (2d) 643. Messrs. J. Harry Covington, Harold C. Faulkner, and Marion De Vries, with whom Messrs. Dean G. Acheson, George Roscoe Davis, and Louis V. Crowley were on the brief, for petitioners. The history of the legal and diplomatic situation which led to the treaty of May 22, 1924, shows that friction had developed between the United States and Great Britain because of the seizure of British vessels by the United States beyond the territorial waters of this country, a practice never before attempted by this country in time of peace. The seizure of hovering vessels beyond territorial waters rests upon the acquiescence of the sovereign whose flag is thus violated, and is not a matter of right. Fish, Secretary of State, to Thornton, January 22, 1875; Moore’s Digest Int. Law, 731; Buchanan, Secretary of State, to Crampton, August 19, 1848; Evarts, Secretary of State, to Fairchild, March 3, 1881; 1 Moore 732; Cunard S. S. Co. v. Mellon, 262 U. S. 100. In a group of early cases in this Court the subject of seizure beyond the three-mile limit was discussed. Church v. Hubbart, 2 Cr. 187; Rose v. Himely, 4 Cr. 241; Hudson v. Guestier, 6 Cr. 281. See Wheaton, Int. L. 8th ed., § 179; 1 Moore 727. One thing alone appears clearly— the exercise of authority beyond the three-mile limit depends upon its acceptance by other nations, in each instance, as reasonable under the conditions. There has been nothing more provocative of international friction than searches and seizures by one nation of the vessels of another nation on the high seas. Up to the time of the decision of the cases arising in connection with the enforcement of the national prohibition of intoxicating liquors, there is no case of the seizure and forfeiture of a foreign vessel in time of peace 596 OCTOBER TERM, 1926. Argument for Petitioners. 273 U.S. which had never itself or through its boats come within the territorial waters of the United States, except in the fur seal controversy, and for these seizures the United States paid compensation. Cunard v. Mellon, 262 U. S. 100; The Grace and Ruby, 283 Fed. 475; The Henry L. Marshall, 286 Fed. 260. In 1922 the United States began to make seizures beyond the three-mile limit which action evoked protests from Great Britain. The treaty of May 22, 1924, was made to settle in a complete way all questions involving the interference with British vessels beyond territorial waters. 43 Stat. 1761. It granted the right to seize British vessels in certain areas beyond territorial waters for the sole and limited purpose of adjudicating the vessel only in accordance with the laws of the United States prohibiting the importation of alcoholic beverages. The rules of construction of treaties are the same as those relating to simple contracts. United States v. Choctaw Nation, 179 U. S. 494, and cases therein cited. Every consideration which may affect construction of the treaty supports the conclusion that Great Britain granted no right to subject to criminal prosecution British subjects brought into the United States as an incident of a seizure under the treaty. The Sagatind, 11 Fed. (2d) 673; Hennings v. United States, 13 Fed. (2d) 74; The Marjorie E. Bachman, 4 Fed. (2d) 405. The end sought to be accomplished by the treaty was not the apprehension and punishment of criminals. It was the seizure and forfeiture of hovering vessels used in introducing alcoholic liquors into the United States. By such seizure and forfeiture the United States was seeking to clear its coasts of these vessels and sought the cooperation of Great Britain in extending the area in which it might seize these vessels for the purpose of forfeiting them. So far as appears, nothing more was asked and certainly nothing more was granted. 597 FORD v. UNITED STATES. Argument for Petitioners. 593 The defendants, having been brought within the jurisdiction of the United States by virtue of the treaty, may not be proceeded against in a manner not permitted by it. Foster v. Neilson, 2 Pet. 253. So clear is the treaty as to the rights of British, subject^ upon the high seas that it has been made the basis of decision in the federal courts. The Frances Louise, 1 Fed. (2d) 1004; The Marjorie E. Bachman, 4 Fed. (2d) 405; The Over The Top, 5 Fed. (2d) 838; The Pictonian, 3 Fed. (2d) 145; The Sagatind, 11 Fed. (2d) 673; Hennings v. United States, 13 Fed. (2d) 74. If British subjects, brought into an American port as an incident to the seizure of a British vessel for purposes of adjudicating it under the laws prohibiting the importation of alcoholic liquors, can be indicted and convicted for conspiracy to violate the National Prohibition Act and the Tariff Act they can be similarly dealt with for any offense against American laws, even though, as in case of such a conspiracy, it is not an offence mentioned in the treaty of May 22, 1924, or in the extradition treaty. Such a result could hardly be regarded by Great Britain other than as—“ a fraud upon the rights of the parties and bad faith toward the country which permitted the seizure.” United States v. Rauscher, 119 U. S. 407. The grand jury regarded the treaty as providing the essence of the charge against these defendants. No evidence was adduced at the trial and presumably not before the grand jury that these men had ever come within the generally recognized territorial jurisdiction of the United States. So important did the grand jury regard the treaty in making unlawful the conduct charged against the defendants that in alleging two of the four overt acts it used the exact language of the treaty to place the acts as taking place within the distance from the coast of the United States which the Quadra and the motor boats in question could traverse in one hour. 598 OCTOBER TERM, 1926. Argument for the United States. 273 U. S. The Circuit Court of Appeals sustained the indictment and conviction by rejecting as surplusage the references to the treaty in the charging paragraphs which made the indictment fatally defective. This was done not only after the grand jury had presented these defendants for trial, but after the trial jury had found them guilty of a conspiracy as alleged in the indictment. This the Court had no power to do. Joplin Mercantile Co. v. United States, 236 U. S. 531; Ex parte Bain, 121 U. S. 1; Dodge v. United States, 258 Fed. 300; Stewart v. United States, 12 Fed. (2d) 524; United States v. Howard, 132 Fed. 325; Najtsger v. United States, 200 Fed. 494. Section 37 of the Criminal Code is not operative against British subjects upon a British vessel on the high seas. Cunard S. S. Co. v. Mellon, 262 U. S. 100, The words of § 37 apparently having universal scope must be “ taken as a matter of course to mean only everyone subject to such legislation, not all that the legislator subsequently may be able to catch.” Viewed in this light it will hardly be contended that § 37 is to be construed as generally applicable. From whatever angle the present question is approached the problem always remains whether § 37 shall be interpreted, as this Court has declared that all criminal statutes should be interpreted, in accordance with recognized international law. United States v. Bowman, 260 U. S. 94; Hyde v. United States, 225 U. S. 347. Solicitor General Mitchell, with whom Assistant Attorney General Willebrandt and Mr. John J. Byrne, Attorney in the Department of Justice, were on the brief, for the United States. The seizure of the Quadra was within the terms of the treaty because the circumstances at the time gave reasonable cause for belief that the vessel and those on board had committed or were committing or attempting to commit an offense against the laws of the United States pro- 599 FORD y. UNITED STATES. Argument for the United States. 593 hibiting the importation of alcoholic beverages, and there was evidence to sustain the finding that a boat intended to convey liquor to shore could traverse the distance to shore within an hour and that the seizure was within the limit of distance fixed by the treaty. Grace and Ruby, 283 Fed. 476; Henry L. Marshall, 292 Fed. 486. The treaty contemplates that the vessel, her cargo, and those on board shall be brought into port. When that is done, if it appears that the persons on board have committed an offense, they may be prosecuted therefor. The treaty does not, by its terms, provide that the crew or cargo must be released, and no such stipulation is implied. The implication is to the contrary, and the attempt to establish an analogy between this case and extradition cases fails. There is nothing in the treaty to sustain the claim that the crew may not be tried for any offense, and the treaty should not be narrowly construed only to permit their trial for violation of the substantive offense of introduction of liquors, but not for conspiracy to do so. The treaty should be construed to carry out its purposes and to relate to violations of law on the subject of alcoholic beverages. United States v. Rauscher, 119 U. S. 407; Ker v. Illinois, 119 U. S. 436. Although the officers of the vessel did not physically come within the territorial limits of the United States, they were parties to the conspiracy to commit crime within the United States made by them with those within the United States, and they directly aided, abetted and combined with those within our jurisdiction in the commission of overt acts within the United States and are therefore subject to trial and punishment under our laws. United States v. Davis, 2 Sumn. 482; In re Palliser, 136 U. S. 257; Horner v. United States, 143 U. S. 207; Benson v. Henkel, 198 U. S. 1; Commonwealth v. Macloon, 101 Mass. 1; People v. Adams, 3 Denio 190; McLoughlin v. 600 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. Raphael Truck Co., 191 U. S. 267; Reg. v. Garrett, 1 Dearsly 232. The statement in the indictment that the defendants conspired to unlawfully introduce liquor into the United States in violation of the treaty may be treated as surplusage. Mr. Chief Justice Taft delivered the opinion of the Court. This is a review by certiorari of the conviction of George Ford, George Harris, J. Evelyn, Charles H. Belanger and Vincent Quartararo, of a conspiracy, contrary to § 37 of the Criminal Code, to violate the National Prohibition Act, Title II, §§ 3 and 29, c. 85, 41 Stat. 305, 308, 316, and the Tariff Act of 1922, § 593 (b), c. 356, 42 Stat. 858, 982. The trial and conviction resulted largely from the seizure of the British vessel Quadra, hovering in the high seas off the Farallon Islands, territory of the United States, twenty-five miles west from San Francisco. The ship, her officers, her crew and cargo of liquor were towed into the port of San Francisco. The seizure was made under the authority of the treaty between Great Britain and the United States, proclaimed by the President May 22, 1924, 43 Stat. 1761, as a convention to aid in the prevention of the smuggling of intoxicating liquors into the United States. The main questions presented are, first, whether the seizure of the vessel was in accordance with the treaty; second, whether the treaty prohibits prosecution of the persons, subjects of Great Britain, on board the seized vessel brought within the jurisdiction of the United States upon the landing of such vessel, for illegal importation of liquor; third, whether the treaty authorizes prosecution of such persons, not only for the substantive offense of illegal importation or attempt to import, but also for conspiracy to effect it; and, fourth, whether such persons, 601 FORD V. UNITED STATES. Opinion of the Court. 593 without the United States, conspiring and cooperating to violate its laws with other persons who are within the United States and to commit overt acts therein, can be prosecuted therefor when thereafter found in the United States. The petitioners and fifty-five others were indicted in November, 1924, for carrying on a continuous conspiracy at the Bay of San Francisco, in the jurisdiction of the United States, from January 1, 1924 to November of that year, the date of the indictment, to commit offenses against the laws of the United States, first, by introducing into and transporting in the United States intoxicating liquor, in violation of the National Prohibition Act; second, by importing liquor into the United States, in violation of § 593, sub-division (b), of the Tariff Act of 1922, making it a penal offense to introduce merchandise into the United States in violation of law; and, third, by violation of the terms of the treaty. It charged as overt acts: the loading of 12,000 cases of liquor on the Quadra at Vancouver, British Columbia, her proceeding on September 10, 1924, to a point less than twelve miles from the Farallon Islands,—a distance which could be traversed in less than an hour by the Quadra and by the motor boats, 903 B, C-55, Marconi, California, Ocean Queen and divers others, by which the liquor was then delivered from her and imported into the United States; that on the 29th of September, 1924, the defendants landed from the steamer Quadra a barrel containing 100 gallons of whiskey, and, at another time, on October 11, 1924, a large variety of alcohol, gin, brandy, whiskey, and vermouth; and that, at another time, on October 12th, the day of the seizure, they attempted to land 89 sacks of whiskey, but that two of the defendants, who were on the small craft C-55, were arrested and were prevented from carrying out their purpose. Two defendants pleaded guilty. Of twenty-nine defendants tried, nineteen, including all the crew of 602 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. the Quadra were acquitted, and ten, including the captain and the first and second officers of the Quadra, were convicted. Of these ten, five, including the three officers, are now before the Court as petitioners. The convictions were affirmed by the Circuit Court of Appeals of the Ninth Circuit. 10 Fed. (2d) 339. The validity of the indictment is attacked, first, because it charges that the conspiracy was to violate the treaty, although the treaty creates no offense against the law of the United States. . This is true, but that part of the indictment is merely surplusage and may be rejected. Bailey v. United States, 5 F. (2d) 437; Remus v. United States, 291 Fed. 501; United States v. Weiss, 293 Fed. 992, 995; United States v. Drawdy, 288 Fed. 567, 570. The trial court took this view. But it is contended that this is to amend the indictment and comes within the inhibition of the principle of Ex parte Bain, 121 U. S. 1. That decision condemns the striking out of words from an indictment. The action here complained of is merely a judicial holding that a useless averment is innocuous and may be ignored. Goto v. Lane, 265 U. S. 393, 402; Salinger v. United States, 272 U. S. 542. Next it is said that the indictment is bad for duplicity. It charges a continuous conspiracy by the defendants, at the Bay of San Francisco, between January 1, 1924, and the date of finding the indictment, to import into the United States intoxicating liquor in violation of its laws. It mentions two of such laws, and, as § 37 of the Criminal Code requires, it describes several overt acts in pursuance of the conspiracy alleged. The charge is unitary in relating to one continuous conspiracy, although in proof of it different circumstances constituting it and overt acts in pursuance of it are disclosed. This does not constitute duplicity. Frohwerk n. United States, 249 U. S. 204, 210; Joplin Co. v. United States, 236 U. S. 531, 548. FORD v. UNITED STATES. 603 593 Opinion of the Court. The case on the evidence made by the Government was as follows: On October 12, 1924, the United States Coast Guard cutter Shawnee, on the lookout for vessels engaged in the illicit importation into the United States of intoxicating liquor, saw the Quadra, a British steamer of Canadian register, near the Farallón Islands. As the Shawnee bore down on her to investigate, she turned and began to move off shore. The captain of the Shawnee signalled her to stop, and she complied. As the Shawnee approached her, a motor boat, C-55, was seen just after the boat had left the Quadra. The Shawnee captain signalled the boat to stop, and because it did not do so, fired a shot across its bow, whereupon it rounded about and came alongside. It had two men and a number of sacks of intoxicating liquor, as well as a partly filled case of beer bottles. It was made fast to the Shawnee and the two men were placed under arrest. The Shawnee captain then sent two officers aboard the Quadra to examine her papers. Ford, her captain, one of the convicted defendants, refused to show his papers or to give any information until he had consulted counsel. The Shawnee officers then took charge of her. She was found to contain a large quantity of intoxicating liquor, and on refusal of Ford to take her by steam into San Francisco, the Shawnee towed her to that port and turned her cargo over to the United States customs officers, while her officers and crew, including Ford, were arrested. The testimony for the Government tended to show that the Quadra when seized was 5.7 nautical miles from the Farallón Islands, and that the motor boat C-55 could have traversed that distance in less than an hour. The evidence for the Government at the trial further showed there were three vessels, the Quadra, the Malahat, and the Coal Harbour, chartered by a cargo-owning cor 604 OCTOBER TERM, 1026. Opinion of the Court. 273 U. S. poration called the Consolidated Exporters Corporation, Limited, of Canada, and loaded at Vancouver, British Columbia, with large cargoes of miscellaneous liquors; that the Malahat left Vancouver in May officially destined to Buenaventura, Colombia; that the Coal Harbour left the same port in July with a similar cargo officially destined to La Libertad, San Salvador; and that the Quadra left there in September, officially destined to La Libertad. The captains of these vessels, while hovering near the Farallones, were constantly in touch with the convicted defendants Quartararo and Belanger, at San Francisco, and acted to some extent under their orders and directions. Quartararo was the most active agent of the conspiracy on shore. Belanger was a director of the Canadian corporation above named. He arranged for and had sent from San Francisco to the Malahat burlap containers to be used for landing the bottled liquor, thence to be transferred to the Quadra, and also gave the orders to transfer liquor from one vessel to another, and to bring designated liquor from the vessels’ cargoes to the shore. The Quadra was supplied with fuel oil from the shore, pursuant to prearrangement. None of the sea-going vessels above named proceeded to their destinations officially described in their ship’s papers, but they cruised up and down between the Farallones and the Golden Gate, where the exchanges of liquor and sacks were made and where the needed oil was delivered, and from where the liquor was carried by small boats to a landing place called Oakland Creek, in San Francisco. The evidence of the conspiracy, the landing of the liquor and the complicity of the convicted defendants therein was ample and practically undenied. There was a preliminary motion to exclude and suppress the evidence of the ship and cargo. It was contended that the seizure was unlawful because not within the zone of the high seas prescribed by the treaty; and that the officers of the Quadra being prosecuted were protected 605 FORD v. UNITED STATES. Opinion of the Court. 593 against its use as evidence against them under the Fourth and Fifth Amendments to the Federal Constitution. The motion was heard by the District Court without a jury and was denied in an opinion reported in 3 Fed. (2d) 643. The evidence of the Government showed that the Quadra was seized at a distance from the Farallon Islands of 5.7 miles, and a test made later of the speed of the motor boat C-55, caught carrying liquor from her, showed that it could traverse 6.6 miles in an hour. There was a conflict as to the exact position of the Quadra at the time of the seizure. It was further objected that the speed of the motor boat was not made under the same conditions as those which existed at the time of the seizure. The question of the evidential weight of the test as well as of all the circumstances was for the judgment of the trial court. As it has been affirmed by the Circuit Court of Appeals, we see no reason to reverse it. I-t is objected that the question of the validity of the seizure should have been submitted to the jury. So far as the objection relates to the admission of evidence, it has already been settled by this Court that the question is for the court and not for the jury. Steele v. United States, 267 U. S. 505, 511; Gila Valley Railway Company 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; Cleave v. Jones, 7 Exchequer 421, 425; Wigmore on Evidence, (2nd ed.) vol. V., p. 556, § 2550. It is further objected, however, that the issue as to the place of the seizure, though submitted to and disposed of by the court in respect of the admissibility of evidence, should also have been submitted to the jury on the general issue. The Solicitor General answers,, on the authority of Ker v. Illinois, 119 U. S. 436, that an illegal seizure would not have ousted the jurisdiction of the court to try the defendants. But the Ker case does not apply here. It related to a trial in a state court, and this Court found 606 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. that the illegal seizure of the defendant therein violated neither the Federal Constitution, nor a federal law, nor a treaty of the United States, and so that the validity of their trial after alleged seizure was not a matter of federal cognizance. Here a treaty of the United States is directly involved, and the question is quite different. But there is a reason why this assignment of error can not prevail. The issue whether the ship was seized within the prescribed limit did not affect the question of the defendants’ guilt or innocence. It only affected the right of the court to hold their persons for trial. It was necessarily preliminary to that trial. The proper way of raising the issue of fact of the place of seizure was by a plea to the jurisdiction. A plea to the jurisdiction must precede the plea of not guilty. Such a plea was not filed. The effect of the failure to file it was to waive the question of the jurisdiction of the persons of defendants. Dowdell v. United States, 221 U. S. 325, 332; Albrecht v. United States, 273 U. S. 1; Gardner v. United States, 5 Indian Territory 150, 156; Regina v. Stone, 23 Ontario 46, 50; In re Paul, 5 Alberta Law 442; State v. Bishop, 7 Conn. 181; State v. Watson, 20 R. I. 354; State v. Kinney, 41 Iowa 424; In re Roszcynialla, 99 Wis. 534, 538; State ex rel. Brown v. Fitzgerald, 51 Minn. 534; In re Brown, 62 Kan. 648; State v. Browning, 70 S. Car. 466; Hollibaugh v. Hehn, 13 Wyo. 269; In re Blum, 9 N. Y. Mise. 571; 1 Bishop Crim. Proc. (2d ed.) §§ 730, 744 and 746; 1 Chitty Criminal Law (5th Am. ed.) p. 438. It was not error therefore to refuse to submit to the jury on the trial the issue as to the place of the seizure. There was a demurrer to the indictment, on the grounds that it did not state facts sufficient to constitute an offense against the United States, that the court had no jurisdiction to try those who were on the Quadra because seized beyond the three-mile limit, and that the acts charged were not within the jurisdiction of the court. The con 607 FORD V. UNITED STATES. Opinion of the Court. 593 spiracy was laid at the Bay of San Francisco, which was within the jurisdiction of the court. The conspiracy charged was undoubtedly a conspiracy to violate the laws of the United States under § 37 of the Criminal Code. The court had jurisdiction to try the offense charged in the indictment and the defendants were in its jurisdiction because they were actually in its custody. The defendants contend that on the face of the indictment and the treaty they are made immune from trial. This requires an examination and construction of the treaty. The preamble of the treaty recites that the two nations, being desirous of avoiding any difficulties which might arise between them in connection with the laws in force in the United States on the subject of alcoholic beverages, have decided to conclude a convention for the purpose. The first four Articles are as follows: “Article I. “ The High Contracting Parties declare that it is their firm intention to uphold the principle that 3 marine miles extending from the coast-line outwards and measured from low-water mark constitute the proper limits of territorial waters. “Article II. “(1) His Britannic Majesty agrees that he will raise no objection to the boarding of private vessels under the British flag outside the limits of territorial waters by the authorities of the United States, its territories or possessions in order that enquiries may be addressed to those on board and an examination be made of the ship’s papers for the purpose of ascertaining whether the vessel or those on board are endeavoring to import or have imported alcoholic beverages into the United States, its territories or possessions in violation of the laws there in force. 608 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. When such enquiries and examination show a reasonable ground for suspicion, a search of the vessel may be instituted. “(2) If there is reasonable cause for belief that the vessel has committed or is committing or attempting to commit an offense against the laws of the United States, its territories or possessions prohibiting the importation of alcoholic beverages, the vessel may be seized and taken into a port of the United States, its territories or possessions for adjudication in accordance with such laws. “(3) The rights conferred by this article shall not be exercised at a greater distance from the coast of the United States its territories or possessions than can be traversed in one hour by the vessel suspected of endeavoring to commit the offense. In cases, however, in which the liquor is intended to be conveyed to the United States its territories or possessions by a vessel other than the one boarded and searched, it shall be the speed of such other vessel and not the speed of the vessel boarded, which shall determine the distance from the coast at which the right under this article can be exercised. “Article III. “ No penalty or forfeiture under the laws of the United States shall be applicable or attach to alcoholic liquors or to vessels or persons by reason of the carriage of such liquors, when such liquors are listed as sea stores or cargo destined for a port foreign to the United States, its territories or possessions on board British vessels voyaging to or from ports of the United States, or its territories or possessions or passing through the territorial waters thereof, and such carriage shall be as now provided by law with respect to the transit of such liquors through the Panama Canal, provided that such liquors shall be kept under seal continuously while the vessel on which they are carried remains within said territorial waters and that 609 FORD y. UNITED STATES. Opinion of the Court. 593 no part of such liquors shall at any time or place be unladen within the United States, its territories or possessions. “Article IV. “Any claim by a British vessel for compensation on the grounds that it has suffered loss or injury through the improper or unreasonable exercise of the rights conferred by Article II of this Treaty or on the ground that it has not been given the benefit of Article III shall be referred for the joint consideration of two persons, one of whom shall be nominated by each of the High Contracting Parties. “ Effect shall be given to the recommendations contained in any such joint report. If no joint report can be agreed upon, the claim shall be referred to the Claims Commission established under the provisions of the Agreement for the Settlement of Outstanding Pecuniary Claims signed at Washington the 18th August, 1910, but the claim shall not, before submission to the tribunal, require to be included in a schedule of claims confirmed in the manner therein provided.” The other two articles relate only to duration and ratification. The treaty indicates a considerate purpose on the part of Great Britain to discourage her merchant ships from taking part in the illicit importation of liquor into the United States, and the further purpose of securing without objection or seizure the transportation on her vessels, through the waters and in ports of the United States, of sealed sea stores and sealed cargoes of liquor for delivery at other destinations than the United States. The counter-consideration moving to the United States is the enlargement and a definite fixing of the zone of legitimate seizure of hovering British vessels seeking to defeat the laws against importation of liquor into this country from 42847°—27------39 610 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. the sea. The treaty did not change the territorial jurisdiction of the United States to try offenses against its importation laws. That remained exactly as it was. If the ship could not have been condemned for such offenses before the treaty, it can not be condemned now. If the persons on board could not have been convicted before the treaty, they can not be convicted now. The treaty provides for the disposition of the vessel after seizure. It has to be taken into port for adjudication. What is to be adjudicated? The vessel. What does that include? The inference that both ship and those on board are to be subjected to prosecution on incriminating evidence is fully justified by paragraph 1 of Article II, in specifically permitting examination of the ship papers and inquiries to those on board to ascertain whether, not only the ship, but also those on board, are endeavoring to import, or have imported, liquor into the United States. If those on board are to be excluded, then by the same narrow construction the cargo of liquor is to escape adjudication, though it is subject to search as the persons on board are to inquiry into their guilt. It is no straining of the language of the article therefore to interpret the phrase “ the vessel may be «seized and taken into a port of the United States ... for adjudication in accordance with such laws,” as intending that not only the vessel but that all and everything on board are to be adjudicated. The seizure and the taking into port necessarily include the cargo and persons on board. They can not be set adrift or thrown overboard. They must go with the ship—they are identified with it. Their immunity on the high seas from seizure or being taken into port came from the immunity of the vessel by reason of her British nationality. When the vessel lost this immunity, they lost it too, and when they were brought into a port of the United States and into the jurisdiction of its District Court, they were just as much subject to its 611 FORD V. UNITED STATES. Opinion of the Court. 593 adjudication as the ship. If they committed an offense against the United States and its liquor importation laws, they can not escape conviction, unless the treaty affirmatively confers on them immunity from prosecution. There certainly are no express words granting such immunity. Why should it be implied? If it was intended by the parties why should it not have been expressed? It is urged that the principle of interpretation, Express sio unius est exclusio alterius, requires the implication from the reference to the adjudication of the vessel alone. This maxim properly applies only when in the natural association of ideas in the mind of the reader that which is expressed is so set over by way of strong contrast to that which is omitted that the contrast enforces the affirmative inference that that which is omitted must be intended to have opposite and contrary treatment. But here, as we have already pointed out, the obvious and necessary association of the seizure and the taking to port of the cargo and those on board with that of the vessel naturally carries the same association with the step of adjudication. This destroys the idea of contrast so that the inference based on the maxim can not here be drawn. The ship, on the one hand, and those. on her and her cargo, on the other, are not, in the natural reading of the words, set over against each other. The words “ for adjudication ” are arranged as incidental to the seizure and taking into port, in which the persons on board and the cargo must be included. Why then should they be excluded from the last of the three steps described in the disposition of the vessel? The maxim of interpretation relied on is often helpful, but its wise application varies with the circumstances. United States v. Barnes, 222 U. S. 513, 518-519; City of New York v. Davis, 7 F. (2d) 566, 575; Saunders v. Evans, 8 H. L. C. 721, 729; London Joint Stock Bank v. Mayor, 1 C. P. D. 1, 17; Colquhoun v. Brooks, 21 Q. 612 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. B. D. 52, 65. Broom’s Legal Maxims, 7th Ed., p. 653, says: “ It will, however, be proper to observe, before proceeding to give instances in illustration of the maxim, Expres-sio unius est exclusio alterius, that great caution is requisite in dealing with it for, as Lord Campbell observed in Saunders v. Evans, it is not of universal application, but depends upon the intention of the party as discoverable upon the face of the instrument or of the transaction; thus where general words are used in a written instrument, it is necessary, in the first instance, to determine whether those general words are intended to include other matters besides such as are specifically mentioned, or to be referable exclusively to them, in which latter case only can the above maxim be properly applied.” Lord Justice Lopes says of the maxim in Colquhoun v. Brooks, supra: “ It is often a valuable servant, but a dangerous master to follow in the construction of statutes or documents. The exclusio is often the result of inadvertence or accident, and the maxim ought not to be applied, when its application, having regard to the subject-matter to which it is to be applied, leads to inconsistency or injustice.” What reason could Great Britain have for a stipulation clothing with immunity either contraband liquor which should be condemned or the guilty persons aboard, when the very object of the treaty was to help the United States in its effort to protect itself against such liquor and such persons, from invasion by the sea? To give immunity to the cargo and the guilty persons on board would be to clear those whose guilt should condemn the vessel and to restore to them the liquor, and thus release both for another opportunity to flout the laws of a friendly government which it was the purpose of the 613 FORD v. UNITED STATES. Opinion of the Court. 593 treaty to discourage. The owner of the vessel would thus alone be subjected to penalty, and he would suffer for the primary guilt of the immunized owner of the liquor. Such implication of immunity leads to inconsistency and injustice. The palpable incongruity contended for is such that, without express words, we can not attribute to the high contracting parties intention to bring it about. Nor have we been advised that Great Britain has ever suggested that under this treaty a crew of a vessel lawfully seized could not be brought into port or tried according to our laws. Diligent as the representatives of that nation have always been in guarding the rights of their people, such a construction of the treaty has not been advanced. It is said by the Solicitor General without contradiction that, following a number of seizures of British ships on our coasts under the treaty, those on board have been indicted and tried for offenses against the laws relating to intoxicating beverages, and that the State Department records show no objection of immunity therefrom to have been claimed for them by the British Government. One instance cited is in respect of the crew of the British schooner Francis E., which was seized off the coast of Alabama, and whose master and crew were arrested and indicted and subsequently tried and convicted for conspiracy to smuggle intoxicating liquors into the United States. Under date of June 30, 1925, pending the trial, the British Embassy communicated to the Secretary of State a complaint, as follows: “As you are doubtless aware, the British schooner Frances E of Nassau was seized by a United States revenue cutter on April 24th last and was later escorted into the port of Mobile, Alabama, where her master and crew were arrested and charged with conspiracy to violate the National Prohibition laws. “ I am informed that the defendants in this case have now been incarcerated in gaol since April 28th last and are ♦ 614 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. still awaiting trial and that the long delay, added to their uncertainty as to the future, is causing them considerable suffering.” The request was then made that the trial be expedited, and this was followed by a similar request in October, 1925; but there was no claim that any immunity from trial was secured by the treaty to those who were brought in on the vessel seized. The case of the United, States v. Rauscher, 119 U. S. 407, is relied on to establish the immunity contended for in this case. Rauscher was convicted under an indictment in a federal court for cruel and unusual punishment of one of the crew of an American vessel of which Rauscher was an officer. He had been extradited from British territory for murder on the high seas under § 4339 of the Revised Statutes. The question was whether he could be tried in this country for another offense than that for which he was extradited,—for an offense for which the treaty granted no right to extradition. The extradition treaty was that of August 9, 1842, between Great Britain and the United States, 8 Stat. 576, in which each country, upon mutual requisition of the other, agreed to deliver to justice all persons who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, should seek an asylum or should be found, within the territories of the other: provided, that this should only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged should be found, would justify his apprehension and commitment for trial, if the crime or offense had there been committed; and the respective judges and other magistrates of the two Governments were given jurisdiction upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, 615 FORD V. UNITED STATES. Opinion of the Court. 593 that he might be brought before such judges or other magistrates, respectively, to the end that the evidence of criminality might be heard and considered; and if, on such hearing, the evidence were deemed sufficient to sustain the charge, it should be the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant might issue for the surrender of such fugitive. The court held that a defendant thus extradited could not be tried for any offense other than the one for which he was extradited. The case was decided at the end of a prolonged controversy between Great Britain and the United States through their State Departments on the same issue presented in several cases. The opinion of the Court was delivered by Mr. Justice Miller, and his conclusions were based, first, on the ground that, according to the doctrine of publicists and writers on international law, the country receiving the offender against its laws from another country in the absence of treaty has no right to proceed against him for any other offense than that for which he had been delivered up; second, that the enumeration of the offenses in the treaty there involved marked such a clear line in regard to the magnitude and importance of those offenses that it was impossible to give any other interpretation to it than the exclusion of the right of extradition in others; third, the provisions of the treaty giving a party an examination before a judicial tribunal in, which, before he should be delivered up, the offense for which he was to be extradited must be proved to the satisfaction of the tribunal, left no doubt that the purpose of the treaty was that the person delivered up should be tried for that offense and no other; and fourth, that the provisions of §§ 5272 and 5275 of the Revised Statutes required such course in the trial of extradited persons. This review of the opinion in the Rauscher case shows that it affords no support for the implication of immunity 616 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. of the smugglers or would-be smugglers, or the contraband cargo, in the case before us. If it were attempted to try the defendants or to forfeit the cargo that was brought into port, for smuggling of forbidden opium, a different question might possibly be presented. But here the subjecting of the defendants and the cargo, by the seizure of the vessel, to the jurisdiction of the courts of the United States is for a conspiracy to do the smuggling of liquor which was the ground for the vessel’s seizure. This destroys any real analogy between the Rauscher case and this. More than this, the strength of the provisions of the treaty in the Rauscher case, as detailed in the opinion, to establish the sound application of the exclusio maxim of interpretation, shows how weak by contrast is its application to the circumstances of this case. It is next objected that the convicted defendants taken from the Quadra were not triable under the indictment, because it charges an offense against them for which under the treaty neither they nor the Quadra could have been seized in the prescribed limit. It is very doubtful whether the objection was made in time and was not waived by the plea of not guilty; but we shall treat it as having been duly made. The contention of counsel on this point is that the treaty permits seizure only for the substantive offense of importing, or attempting to import, liquor illegally, and not for a conspiracy to do so. These defendants were indicted under § 37 of the Criminal Code of the United States for having conspired at the Bay of San Francisco to violate the National Prohibition Act and the Tariff Act of 1922. Section 37 of the Criminal Code provides that if two or more persons conspire to commit an offense against the United States, and one or more of such parties commit any act to effect the object of the conspiracy, each shall be punished. 617 FORD y. UNITED STATES. Opinion of the Court. 593 The National Prohibition Act, c. 85, § 3, 41 Stat. 305, 308, enacted October 29, 1919, provides: “ No person shall on or after the date when the 18th Amendment to the Constitution goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this Act, and all the provisions of this Act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may b£ prevented.” The Tariff Act of September 21, 1922, 42 Stat., c. 356, § 593 (b) provides that if any person fraudulently or knowingly imports or brings into the United States, or assists in doing so, any merchandise contrary to law, he shall be fined or imprisoned. The importation of liquor into the United States is contrary to law, as shown by the Prohibition Act. The indictment charged as overts acts that the defendants and each of them on the 10th and 29th of September, and October 11th, by small boats from the Quadra landed illegally in San Francisco substantial quantities of liquor, and on the 12th of October, the day of the seizure, attempted to land another lot of liquor but were defeated by the seizure. The preamble of the treaty recites that the two nations, being desirous of avoiding any difficulties which might arise between them in connection with the laws in force in the United States on the subject of alcoholic beverages, have decided to conclude a convention for the purpose. Paragraph (1) of Article II provides for boarding, exami-ination and search to ascertain whether the ship or those on board were “ endeavoring to import or have imported alcoholic beverages into the United States in violation of the laws there in force.” The second paragraph of Article II permits the seizure on belief that “ the vessel has committed or is committing or is attempting to commit 618 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. an offense against the laws of the United States prohibiting the importation of alcoholic beverages.” Considering the friendly purpose of both countries in making this treaty, we do not think any narrow construction should be given which would defeat it. The parties were dealing with a situation well understood by both. In effect they wished to enable the United States better to police its seaboard by enabling it, within an hour’s sail from its coast, beyond its territorial jurisdiction and on the high seas, to seize British actual or would-be smugglers of liquor and, if they were caught, to proceed criminally against them as if seized within the three-mile limit for the same offenses, in reference to liquor importation. No particular laws by title or date were referred to in the treaty but only the purpose and effect of them. Plainly, it was the purpose of the contracting parties that vessels and men who are caught under the treaty and are proven to have violated any laws of the United States, by which the importation of liquor is intended to be stopped through forfeiture or punishment, may be prosecuted after the seizure. The National Prohibition Act expressly punishes the importation of intoxicating liquor. The Tariff Act of 1922 declares it an offense to make any illegal importation, and so makes it an offense to import intoxicating liquor. Section 37 of the Criminal Code makes it an offense to conspire to violate the Prohibition Act and the Tariff Act in respect of the importation of liquor, if the conspiracy is accompanied by overt acts in pursuance of it. The conspiracy act is the one most frequently used in the prosecution of liquor importations from the sea, because such smuggling usually necessitates a conspiracy in preparation for the landing. We think that any more limited construction would not satisfy the reasonable expectations of the two parties. Nothing in the words of the treaty makes such an interpretation a difficult one. The penalties under each act differ from 619 FORD V. UNITED STATES. Opinion of the Court. 593 those under the others. The Tariff Act and the conspiracy section each imposes a maximum penalty of two years, while that of the Prohibition Act is only six months, with a lower maximum of fine. The differences are clearly not sufficient to affect the construction. The substantive offense of importing liquor is in law a different one from the preparatory offense of conspiring to import liquor; but where, as here, the overt acts of the conspiracy include an actual importation of liquor and an attempt, it would seem to be quite absurd to hold that the conspiracy set forth does not come within the scope of the treaty. This is not a case for keeping within the technical description of a particular offense. It is not a formal extradition treaty where it is necessary, in protection of the persons to be extradited and carried from one country to another, that the crime for which they are to be tried should be described with nicety and precision to permit the operation of the principles recognized and enforced in the Rauscher case. Any law, the enforcement of and punishment under which will specifically prevent smuggling of liquor, should be regarded as embraced by the treaty. The British Government has advanced no contrary view. In the letter from the British Embassy, of June 30, 1925, already referred to, the fact that the master and crew of the British schooner Francis E. of Nassau, were arrested and charged with conspiracy to violate the National Prohibition laws, was not made the basis of complaint or protest but only of a request that the trial be expedited. The error assigned upon this point can not be sustained. The next objection of the defendants taken from the Quadra is that on all the evidence they were entitled to a directed verdict of not guilty. They argue that they are charged with a conspiracy illegally to import, or to attempt to import, liquor into the United States when they were corporeally at all times during the alleged conspiracy out of the jurisdiction of the United States and 620 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. so could commit no offense against it. What they are charged with is conspiring “ at the bay of San Francisco ” with the defendants Quartararo and Belanger illegally to import liquor, and the overt acts of thus smuggling and attempting to smuggle it. The conspiracy was continuously in operation between the defendants in the United States and those on the high seas adjacent thereto, and of the four overt acts committed in pursuance thereof, three were completed and took effect within the United States and the fourth failed of its effect only by reason of the intervention of the federal officers. In other words, the conspiring was directed to violation of the United States law within the United States by men within and without it, and everything done was at the procuration and by the agency of each for the other in pursuance of the conspiracy and the intended illegal importation. In such a case all are guilty of the offense of conspiring to violate the United States law whether they are in or out of the country. In Strassheim v. Daily, 221 U. S. 280, Daily had been convicted of procuring Armstrong, a public official of Michigan, to pay bills presented to the State which Armstrong knew to be fraudulent. It was objected that, during the whole period of the crime, Daily was in Chicago, Illinois, and could not be punished under an indictment found in Michigan for such an offense. This Court denied the claim, saying (pp. 284, 285): "If a jury should believe the evidence and find that Daily did the acts that led Armstrong to betray his trust, deceived the Board of Control, and induced by fraud the payment by the State, the usage of the civilized world would warrant Michigan in punishing him, although he never had set foot in the State until after the fraud was complete. Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if FORD v. UNITED STATES. 621 593 Opinion of the Court. he had been present at the effect, if the State should succeed in getting him within its power. Common wealth v. Smith, 11 Allen 243, 256, 259; Simpson v. State, 92 Georgia 41; American Banana Co. v. United Fruit Co., 213 U. S. 347, 356; Commonwealth v. Macloon, 101 Mass. 1, 6, 18. We may assume therefore that Daily is a criminal under the laws of Michigan.” Other cases in this Court which sustain the same view are Benson v. Henkel, 198 U. S. 1; Re Palliser, 136 U. S. 257; Horner v. United States, 143 U. S. 207; Burton v. United States, 202 U. S. 344, 387; and Lamar v. United States, 240 U. S. 60, 65, 66. There has been much discussion of this general principle, and its application has been varied in some courts because of certain rules of the common law with respect to principals and accessories; but in the consideration of such a case as this, we are not controlled by such considerations and regard the principle as settled, as in the passage quoted. It is supported by other authorities: Commonwealth v. Gillespie, 7 Sargent & Rawle 469, 478; Rex v. Brisac and Scott, 4 East, 164; State v. Piver, 74 Wash. 96; Weil v. Black, 76 W. Va. 685, 694. In Regina v. Garrett, Dearsly’s Crown Cases Reserved, 232, 241, Lord Campbell said: “ I do not proceed upon the ground that the offense was •committed beyond the jurisdiction of the Court ”—which was the fact there—“ for if a man employ a conscious or unconscious agent in this country, he may be amenable to the laws of England, although at the time he was living beyond the jurisdiction.” It will be found among the earlier cases that the principle is sometimes qualified by saying that the person out of the State can not be held for a crime committed within the State by his procuration unless it is done by an innocent agent or a mechanical one; but the weight of authority is now against such limitation. Generally the 622 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. cases show that jurisdiction exists to try one who is a conspirator whenever the conspiracy is in whole or in part carried on in the country whose laws are conspired against. In Hyde v. United States, 225 U. S. 347; Brown v. Elliott, 225 U. S. 392, the question was whether a conspiracy could be tried, not where it was carried on, but in a place where only an overt act under it was performed by one conspirator. There was strong diversity of opinion among the Justices, though a majority sustained the venue following the Court of King’s Bench in Rex v. Bri-sac and Scott, 4 East, 164. But we have no such ground for difference here, for the conspiracy was being carried on all the time by communications exchanged between the conspirators in San Francisco and on the high seas just beyond the three-mile limit near San Francisco Bay, and the overt acts were in both places. The whole question was fully considered from the international standpoint in a learned opinion by John Bassett Moore, now Judge of the Permanent Court of International Justice, while he was Assistant Secretary in the State Department, to be found in Moore’s International Law Digest, vol. 2, p. 244. The report was made in view of controversy between this Government and the Government of Mexico in reference to the arrest and imprisonment of one Cutting for a libel charged to have been committed by Cutting in the publication of an article iiP a newspaper in the State of Texas. The prosecution was under Article 186 of the Mexican Penal Code. That code provided that penal offences committed in a foreign country against a Mexican might be punished in Mexico. Our government maintained that it could not recognize the validity of a prosecution in Mexico of an American citizen who happened thereafter to be there, for an offense committed in the United States, merely because it was committed against a Mexican. In the course of the examina- FORD v. UNITED STATES. 623 593 Opinion of the Court. • tion of this question, Mr. Moore, recognizing the principle already stated, said: “ The principle that a man who outside of a country wilfully puts in motion a force to take effect in it is answerable at the place where the evil is done, is recognized in the criminal jurisprudence of all countries. And the methods which modern invention has furnished for the performance of criminal acts in that manner has made this principle one of constantly growing importance and of increasing frequency of application. “ Its logical soundness and necessity received early recognition in the common law. Thus it was held that a man who erected a nuisance in one county which took effect in another was criminally liable in the county in which the injury was done. (Bulwer’s case, 7 Co. 2 b. 3 b.; Com. Dig. Action, N. 3, 11.) So, if a man, being in one place, circulates a libel in another, he is answerable at the latter place. (Seven Bishops' Case, 12 State Trials, p. 331; Rex v. Johnson, 7 East. 65.)” After referring to the doctrine of innocent agent and its dependence on the distinctions between accessories and principal in crime, Judge Moore says (p. 249): “ But, as has been shown, the doctrine of accessoryship has been abolished by statute in many jurisdictions in which it formerly prevailed, and is condemned by many writers as unnecessary and unsound. Referring to accessories before the fact, Mr. Bishop says: “ ‘ The distinction between such accessory and a principal rests solely in authority, being without foundation either in natural reason or in the ordinary doctrines of the law. The general rule of the law is, that what one does through another’s agency is to be regarded as done by himself.’ “And on this point he cites Broom’s Legal Maxims, 2d ed., p. 643; Co. Lit. 258a; and the opinion of Hosmer, C. J., in Barkhamsted v. Parsons, 3 Conn. 1, that ‘ the 624 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. principal of common law, Qui jacit per alium, facit per se, is of universal application, both in criminal and civil cases.’ ” The overt acts charged in the conspiracy to justify indictment under § 37 of the Criminal Code were acts within the jurisdiction of the United States, and the conspiracy charged, although some of the conspirators were corporeally on the high seas, had for its object crime in the United States and was carried on partly in and partly out of this country, and so was within its jurisdiction under the principles above settled. We have thus disposed of the chief objections. There are some objections to the admission of evidence, one with respect to the receipt of a telegram charged by the Government to be from Belanger, a defendant, sent to Dorgan, his co-director of the Canadian corporation which owned the cargoes of liquor; another objection based on the receipt in evidence of eighty-three dollar bills cut in two with liquor orders written on them, associated in the evidence with Quartararo and charged to show that he had used them for the purpose of sending them out to the officers of the rum runners to identify his agents for the safe delivery of the liquor. Another was as to the evidence of a witness who pleaded guilty and who was permitted to testify that at the instance of Quartararo, shown by the evidence to be the chief operator in the conspiracy, he brought into San Francisco liquor in small boats, not only from the Quadra, the Coal Harbour and the Malahat, controlled by the Canadian corporation, but many times during the period of the conspiracy alleged in the indictment also from a vessel called the Norbum, without the direct evidence that the Norburn was controlled by the same Canadian corporation, and therefore that it was irrelevant evidence of another conspiracy rather than the one charged. With respect to all these instances, we think R. R. COMMISSION v. DULUTH ST. RY. 625 593 SyHabus. that there was sufficient, probable connection with the conspiracy already shown to allow the items of evidence to be introduced, leaving to the jury the weight of it, but that even if in any of such instances there was error, they were merely cumulative proof of the conspiracy which was practically undenied and their admission was harmless. The judgment of conviction of the Court of Appeals is Affirmed. RAILROAD AND WAREHOUSE COMMISSION OF MINNESOTA et al. v. DULUTH STREET RAILWAY COMPANY. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA. No. 228. Argued March 14, 15, 1927.—Decided April 11, 1927. 1. A public utility claiming that an order of a state commission fixing its rates deprives it of a fair return, is not bound to exhaust a statutory remedy by appeal to the state court before going into the federal court, when it is possible that such remedy might be held judicial rather than legislative in character, and the decision therefore res judicata against the complainant. P. 627. 2. The requirement that state remedies in such cases be exhausted before coming into the federal court is not a fundamental principle of substantive law but merely a requirement of convenience or comity. P. 628. 3. A street railway, in electing to come under a state statute providing that its rates may be fixed by a commission with review by appeal to the state courts, does not thereby contract that it will exhaust the statutory remedy before suing in the federal court when the rate fixed by the commission is confiscatory. P. 628. 4. Where under the state law a street railway and a city both had the right to appeal to the state court from an order of a commission fixing the railway fare, a suit by the railway in the federal court to enjoin enforcement of the order as confiscatory, to which the city is a party, gives the city its day, and is not objectionable as cutting off its right of appeal to the state court. P. 629. 4 F. (2d) 543, affirmed. 42847°—27--40 626 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. Appeal from a judgment of the District Court enjoining the enforcement of an order of the above named Commission fixing the rates of the Railway Company. The defendants were the Commission, its members, and the City of Duluth. Mr. Ernest C. Carman, with whom Mr. Clifford L. Hilton was on the brief, for appellant The Railroad and Warehouse Commission. Mr. John B. Richards for appellant The City of Duluth. Mr. Oscar Mitchell, with whom Messrs. W. D. Bailey and H. A. Carmichael were on the brief, for appellee. Mr. Justice Holmes delivered the opinion of the Court. This is an appeal from a decree of the District Court in favor of the plaintiff, the appellee, that prohibits the enforcing of a rate for the carriage of passengers established by the appealing Commission and authorizes the plaintiff to charge not exceeding six cents for carrying passengers within the City of Duluth, subject to conditions not needing mention. 4 F. (2d) 543. The Commission’s order allowed a charge of six cents for a single fare but required the plaintiff to issue tickets or tokens at not to exceed twenty-five cents for five rides. The difference, it will be seen, is somewhat narrow and the only, question that we have any need to consider is whether the plaintiff had a right to come into the Court of the United States when it did, and whether its suit was not at least premature. The plaintiff, an existing street railway company, elected to comply with and come under the terms of Chapter 278 General Laws of Minnesota, 1921, by filing the declaration and consent required. Thereby it gained a right to apply to the above mentioned Commission to fix the rates of fare to be charged in place of the five cents R. R. COMMISSION v. DULUTH ST. RY. 627 625 Opinion of the Court. to which it had been limited before it came in under the Act. It applied to the Commission; the City of Duluth was made a party; and after a hearing the Commission determined the value of the plaintiff’s property used and useful in the street car service in Duluth, found that a return of seven and one-half per cent, was a reasonable rate of return, and fixed the fares that we have stated as sufficient to yield that rate. This was on July 13, 1922. Five days later the plaintiff filed this bill, setting up that the Commission’s order was confiscatory and in violation of the Fourteenth Amendment of the Constitution of the United States. The objections to the bill are based on the provisions of the Minnesota statute for an appeal. Both the city and the street railway are given the right to appeal to the District Court of the county, and there the whole matter, fact and law, is to be tried before three judges, without a jury. They are to find all material facts, including the fair value of the property and the reasonable rate of return, and to affirm, modify or reverse the order of the Commission, as may be required by law, the Commission being directed to conform to their judgment in its final order. There is a further resort to the Supreme Court. It is said that plaintiff was bound to exhaust the appeal thus granted before going elsewhere, and that it could not cut off the similar right of the City of Duluth. It is said that this is so not only on general principles but is binding on the plaintiff by its assent to the statute, which, it is said, constituted a contract and amounted to an acceptance of the statutory proceedings as the only mode of relief. The Supreme Court of the State has declared the proceedings in Court to be judicial not legislative in their nature, and therefore consistent with the constitution of the State. Duluth v. Railroad & Warehouse Commission, 167 Minn. 311. See Janvrin, Pet’r, 174 Mass. 311. If 628 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. then the State Court should affirm the rate fixed by the Commission and the matter should become res judicata, a resort to the federal Court would be too late. But the plaintiff if it prefers to entrust the final decision to the Courts of the United States rather than to those of the State has a right to do so. Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, 391. Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 228 and cases cited. It might be said that this Court would have to exercise its own judgment as to how the proceedings in the State Court should be characterized and not impossibly might regard them as legislative. Keller v, Potomac Electric Co., 261 U. S. 428. Or again it might be said that however characterized the judgment does not operate as such, but is taken up into the subsequent order of the Commission and therefore is subject to review after it has been given that form. But as against these considerations it must be remembered* that the requirement that state remedies be exhausted is not a fundamental principle of substantive law but merely a requirement of convenience or comity. Where as here a constitutional right is insisted on, we think it would be unjust to put the plaintiff to the chances of possibly reaching the desired result by an appeal to the State Court when at least it is possible that as we have said it would find itself too late if it afterwards went to the District Court of the United States. Pacific Telephone & Telegraph Co. v. Kuykendall, 265 U. S. 196. Oklahoma Natural Gas Co. v. Russell, 261 U. S. 290. The argument that the plaintiff is barred by contract needs but a word. We will assume for the purposes of decision that the plaintiff by coming in under the State law made a contract, and as part of it adopted the statutory method of getting its rates changed. But it would be extravagant to say that it did more than adopt that method in its general character and with its ordinary incidents. If apart from the supposed contract a party BEECH-NUT CO. v. LORILLARD CO. 629 625 Syllabus. would have been entitled to go to the Court of the United States at the stage when the plaintiff went there, no reasonable interpretation of the contract forbade the plaintiff to go, and there is no need to consider whether the contract could have forbidden it if it had tried. Finally as to the rights of the appellants. It is said that the appeal of the City is cut off by the course the plaintiff has taken. But of course the City would not appeal except on the ground that the plaintiff already was given too favorable terms. The City is in the present case and when as here the plaintiff succeeds in showing that these terms are inadequate on constitutional grounds, the City has had its day and has failed, and the loss of its appeal is merely a consequence of a trial in which it has been heard and has lost. Decree affirmed. Mr. Justice Butler took no part in this case. BEECH-NUT PACKING COMPANY v. P. LORILLARD COMPANY. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 249. Argued March 17, 18, 1927.—Decided April 11, 1927. 1. A trade-mark is not abandoned and destroyed, as a matter of law, merely through disuse for five years. P. 632. 2. The fact that the good will once associated with a trade-mark has vanished does not end at once the preferential right of the proprietor to try it again on,goods of the same class. Id. 3. Assuming that, where each of two parties has the right to the same trade name but on different types of goods, the arrangements and accompaniments adopted by the one for its display may not lawfully be imitated by the other, the right to object may be lost by lapse of time and change of circumstances. Id. 1 F. (2d) 967, affirmed. 630 OCTOBER TERM, 1926. Opinion of the Court. 273 U. S. Certiorari (269 U. S. 551) to a decree of the Circuit Court of Appeals affirming the District Court (299 Fed. 834) in dismissing the bill of the Beech-Nut Company to enjoin the other party from infringing its right in the registered trade-mark “ Beech-Nut,” and from acts of alleged unfair competition. Mr. Charles E. Hughes, with whom Messrs. Walter A. Scott, James R. Offield, and H. McClure Johnson were on the brief, for petitioner. Mr. John W. Davis, with whom Messrs. William R. Perkins and John Milton were on the brief, for respondent. Mr. Justice Holmes delivered the opinion of the Court. This is a suit in equity brought by the petitioner, Beech-Nut Packing Company, a corporation of New York, charging the P. Lorillard Company, a corporation of New Jersey, with infringement of its registered trademark, 1 Beech-Nut,’ and with unfair competition. The bill also takes the possibly broader ground that 1 Beech-Nut,’ being the plaintiff’s trade-mark and part of its corporate name, has become the plaintiff’s badge and autograph so far that the public seeing the mark on any package of consumable goods will believe that the article is of the plaintiff’s make. The trade-mark was first used on ham and bacon but gradually has been extended to many other articles so diverse as chewing gum, peanut butter, and ginger ale, but always, the plaintiff says, as a guaranty of excellence, often expressed by it in advertisements, as ‘ Beech-Nut Quality.’ The defendant uses the words ‘ Beech-Nut ’ on chewing tobacco and cigarettes, and the bill takes the hardly consistent positions, on the one hand that the plaintiff’s reputation is hurt BEECH-NUT CQ. v. LORILLARD CO. 631 629 Opinion of the Court. with its refined female customers by the belief that it would manufacture a cheap chewing tobacco, and on the other hand that it may wish to extend its business into that domain. The bill was dismissed on the merits by the District Court, 299 Fed. 834, and by the Circuit Court of Appeals. 7 F. (2d) 967. As the principles involved seemed important, and as it was urged that the decision was in conflict with decisions in other Circuit Courts of Appeals, such as Aunt Jemima Mills Co. v. Rigney, 247 Fed. 407, and Vogue Co. v. Vogue Hat Co., 6 F. (2d) 875, a writ of certiorari was granted by this Court. 269 U. S. 551. The plaintiff’s trade-mark goes back to before the beginning of this century. The registration specially relied upon was dated December 31, 1912, and states that the plaintiff has adopted the mark for use upon a large number of specified objects, including those that we have mentioned, “ all in Class 46, Foods and ingredients of foods.” The defendant claims the mark 1 Beechnut ’ for tobacco through successive assignments from the Harry Weissinger Tobacco Company, of Louisville, Kentucky, which used it from and after 1897. The plaintiff does not contest the original validity of this mark or suggest any distinction on the ground that it originated in a different State, but says that the right has been lost by abandonment. It appears that brands of tobacco have their rise and fall in popular favor, and that the Beechnut had so declined that in 1910 only twenty-five pounds were sold, and the trade-mark was left dormant until after the dissolution of the American Tobacco Company which then held it. This was in 1911, and the Lorillard Company took over the mark with many others. Then, in connection with an effort to get a new brand that would hit the present taste, this mark was picked out, some of the adjuncts were changed, and in 1915 the new tobacco was put upon the market. Nothing had happened in 632 OCTOBER TERM, 1926. Opinion of the Court. 273 U.S. the meantime to make the defendant’s position worse than if it had acted more promptly, and we see no reason to disturb the finding of two Courts that the right to use the mark had not been lost. The mere lapse of time was not such that it could be said to have destroyed the right as matter of law. A trade-mark is not only a symbol of an existing good will, although it commonly is thought of only as that. Primarily it is a distinguishable token devised or picked out with the intent to appropriate it to a particular class of goods and with the hope that it will come to symbolize good will. Apart from nice and exceptional cases, and within the limits of our jurisdiction, a trade-mark and a business may start together, and in a qualified sense the mark is property, protected and alienable, although as with other property its outline is shown only by the law of torts, of which the right is a prophetic summary. Therefore the fact that the good will once associated with it has vanished does not end at once the preferential right of the proprietor to try it again upon goods of the same class with improvements that renew the proprietor’s hopes. It may be true that in a case like the plaintiff’s its rights would not be sufficiently protected by an injunction against using the marks upon goods of the same class as those to which the plaintiff now applies it and to which its registration is confined. Upon that we express no opinion. For when it is conceded that whatever its effect the defendant has a right to use ‘ Beechnut ’ on tobacco unless the right has been abandoned, that possibility does not matter. Again, it may be true that in putting a hyphen between Beech and Nut, framing its label with an oval and substituting a beechnut for a squirrel in the centre the defendant was trying to get an advantage from the plaintiff’s good will and if challenged at once might have been required to make it even plainer than it was 633 BEECH-NUT CO. v. LORILLARD CO. Opinion of the Court. 629 made by the word ‘ Lorillard’s,’ in large letters upon the label, that the plaintiff had nothing to do with the goods. But the plaintiff waited until 1921. The Lorillard Company is at least as well known to those who do not despise tobacco as the Beech-Nut Company is to its refined customers, and the time and the need for that additional precaution has gone by. If the plaintiff was misled in its reason for thinking that the defendant’s right had been kept alive it was right in its belief, and further, the belief had no bearing on the question whether the mark was presented in an unjustifiable form. Now that the case has been more fully considered than it could be on the petition for certiorari, it seems to us that the facts do not present the nice question upon which the petitioner wished us to pass. Both Courts having found for the defendant, we see no ground upon which it can be said that they w’ere wrong as matter of law. Joseph Schlitz Brewing Co. v. Houston Ice & Brewing Co., 250 U. S. 28, 29. Decree affirmed. 635 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. S. DECISIONS PER CURIAM, FROM OCTOBER 4, 1926, TO AND INCLUDING APRIL 11, 1927, OTHER THAN DECISIONS ON PETITIONS FOR WRITS OF CERTIORARI. No. 156. Wade Johnson v. State of Georgia; and No. 157. Jarrett Benford v. State of Georgia. Error to the Supreme Court of the State of Georgia. October 4, 1926. Dismissed for want of jurisdiction. Messrs. G. Y. Harrell, W. A. McClennan, and William 0. Cooper for plaintiffs in error. Messrs. George M. Napier and T. R. Gress for defendant in error. No. 247. Ned Harvey v. State of Louisiana. Error to the Supreme Court of the State of Louisiana. October 4, 1926. Dismissed for the want of jurisdiction. Messrs. Paul A. Sompayrac and A. R. Mitchell for plaintiff in error. Messrs. Percy Saint, John J. Robira, P. R. Scho-macher, and 5. H. Jones for defendant in error. No. 1224. John Lapique, Assignee of the Estate of Miguel Leonis, et al., v. District Court of the United States for the Southern District of California et al. October 11, 1926. The petition for a rehearing of (1) the petition for a writ of mandamus; (2) the petition for a writ of certiorari; and (3) the petition for a writ of error are denied. Mr. John Lapique, pro se. No appearance for respondents. No. 327. Charles H. Spear et al., etc., v. United States. Error to the District Court of the United States for the Northern District of California. Motion to dismiss submitted May 24, 1926. Decided October 11, 1926. 636 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. S. Per Curiam. This cause is dismissed for lack of jurisdiction in this court under § 238 of the Judicial Code as amended by the Act of February 13, 1925, c. 229, 43 Stat. 936. Solicitor General Mitchell for the United States, in support of the motion. Messrs. U. S. Webb and W. T. Plunkett for plaintiffs in error, in opposition thereto. No. 86. Frank Rossi et al. v. United States. Error to the District Court of the United States for the Western District of Washington. Motion to transfer cause submitted October 4, 1926. Decided October 11, 1926. Per Curiam. This case, the judgments of the District Court in which were entered December 15 and 26, 1924, is transferred to the Circuit Court of Appeals for the Ninth Circuit in accordance with the Act of September 14, 1922, c. 305, 42 Stat. 837, construed as effective as to these judgments by § 14 of the Act of February 13, 1925, c. 229, 43 Stat. 942. Heitler v. United States, 260 U. S. 438, 439, 440; Pothier v. Rodman, 261 U. S. 307, 312; Hoffman v. McClelland, 264 U. S. 552,555. Solicitor General Mitchell, with whom Assistant Attorney General Willebrandt and Mr. John J. Byrne were on the brief, for the United States, in support of the motion. Mr. Abner E. Ferguson for plaintiff in error, in opposition thereto. No. 194. Dan Bartoncini v. United States. Error to the District Court of the United States for the Northern District of California. Motion to dismiss or advance submitted October 4, 1926. Decided October 11, 1926. Per Curiam. Dismissed for want of jurisdiction upon the authority of Farrell v. O’Brien, 199 U. S. 89, 100; Toop v. Ulysses Land Co., 237 U. S. 580, 583; Piedmont Power & Light Co. v. Town of Graham, 253 U. S. 193, 195. Solicitor General Mitchell for the United States, in support 637 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U.S. of the motion. Mr. Ernest B. D. Spagnoli for plaintiff in error, in opposition thereto. No. 522. Kate Tendler v. Morris Tendler. See post, p. 693. No. 13, original. State of Michigan v. State of Illinois and Sanitary District of Chicago. Motion submitted October 4, 1926. Decided October 11, 1926. The motion of the State of Michigan for leave to file an amended bill of complaint making the State of New York a joint complainant therein is denied; but the State of New York is granted leave to file a separate bill of complaint on its own behalf conforming in other respects to the amended bill of complaint tendered with said motion ; such separate bill to be filed next Monday. Mr. Andrew B. Dougherty, Attorney General of Michigan, for complainant. Mr. Albert Ottinger, Attorney General of New York, for the State of New York. No. 437. Daniel J. Hart v. H. B. North et al. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit. October 11, 1926. Per Curiam. The motion for leave to proceed further in forma pauperis is denied for the reason that upon examination of the unprinted record the court finds no ground for certiorari, the .application for which is also denied. Mr. Leon Robbins for petitioner. No appearance for respondent. No. 248. Jacob Goldman v. State of Illinois. Error to the Supreme Court of the State of Illinois. Motion to dismiss submitted October 4, 1926. Decided October 11, 1926. Per Curiam. Writ of error dismissed for want of 638 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. S. jurisdiction on the authority of Farrell v. O’Brien, 199 U. S. 89, 100; Toop v. Ulysses Land Co., 237 U. S. 580, 583; Piedmont Power & Light Co. v. Town of Graham, 253 U. S. 193, 195. Application for certiorari is also denied. Mr. Montgomery S. Winning in behalf of Messrs. Oscar E. Carlstrom and Edward C. Fitch for defendant in error, in support of the motion. Messrs. David D. Stansbury and Leslie A. Gilmore for plaintiff in error, in opposition thereto. No. 103. W. A. Thomson v. Alexander W. Thomson et al., etc. Error to the Supreme Court of the State of Illinois. Motion to dismiss submitted October 4, 1926. Decided October 11, 1926. Per Curiam. Dismissed for want of jurisdiction upon the authority of Farrell v. O’Brien, 199 U. S. 89, 100; Toop v. Ulysses Land Co., 237 U. S. 580, 583; Piedmont Power & Light Co. v. Town of Graham, 253 U. S. 193, 195. Messrs. Henry S. Robbins, Silas H. Strawn, and Walter H. Jacobs for defendants in error, in support of the motion. Messrs. William M. Bullitt and Samuel B. King for plaintiff in error, in opposition thereto. No. 524. Canal-Commercial Trust & Savings Bank and Union Indemnity Company v. Earl Brewer. Error to the Supreme Court of the State of Mississippi. Motion to dismiss or affirm submitted October 4, 1926. Decided October 11, 1926. Per Curiam. Writ of error dismissed on the authority of Consolidated Turnpike Co. v. Norfolk and Ocean View Railway Co., 228 U. S. 326, 334. Application for certiorari also denied. Mr. John W. Cutrer for defendant in error, in support of the motion. Messrs. Marcellus Green, Gamer W. Green, and Chalmers Potter for plaintiffs in error, in opposition thereto. See post, p. 643. 639 OCTOBER TERM, 1926. Decisions Per Oiriam, Etc. 273 U. S. No. 630. Ethel Jones v. State of Mississippi. Error to the Supreme Court of the State of Mississippi. October 11, 1926. Per Curiam. Motion for leave to proceed further in forma pauperis denied for the reason that the court finds upon examination of the unprinted record that there is no jurisdiction of the cause on the writ of error for want of a substantial Federal question. Trona v. United States, 199 U. S. 521. Mr. William H. Watkins for plaintiff in error. No appearance for defendant in error. No. 657. David F. Mitchell v. United States. See post, p. 693. No. 652. Thomas H. Larkin v. State of New York. Error to the Supreme Court of the State of New York. October 11, 1926. Per Curiam. Motion for leave to proceed further in forma pauperis denied for the reason that the court finds upon examination of the unprinted record that it presents no Federal question and therefore dismisses the writ of error upon the authority of Farrell v. O’Brien, 199 U. S. 89, 100; Toop v. Ulysses Land Co., 237 U. S. 580, 583; Piedmont Power and Light Co. v. Town of Graham, 253 U. S. 193, 195. Mr. Thomas H. Larkin, pro se. No appearance for defendant in error. No. 230. State Industrial Board of the State of New York v. Terry & Tench Company, Inc., and United States Fidelity and Guaranty Company. Certiorari to the Supreme Court of the State of New York. Argued October 6, 1926. Decided October 11, 1926. Per Curiam. Reversed upon the Authority of Millers’ Indemnity Underwriters v. Braud, 270 U. S. 59. Mr. E. C. Aiken, with whom Mr. Albert Ottinger, Attorney General of New York, was on the brief, for petitioner. Mr. W. W. Dimmick for respondents. 640 OCTOBER TERM; 1926. Decisions Eer Curiam, Etc. 273 U. S. No. 177. General Petroleum Corporation v. County of Kern. Error to the District Court of the United States for the Southern District of California. Argued October 14, 1926. Decided October 18, 1926. Per Curiam. Affirmed on the authority of Mid-Northern Oil Co. v. Walker, 268 U. S. 45. Mr. A. L. Weil for plaintiff in error. Mr. Samuel Herrick for defendant in error. No. 253. Arnold H. Brein v. State Department of Health et al. Error to the Superior Court of the State of Connecticut. Argued October 14, 1926. Decided October 18, 1926. Per Curiam. Dismissed for want of jurisdiction upon authority of Sayward v. Denny, 158 U. S. 180; Oxley Stave Co. v. Butler County, 166 U. S. 648, 655. Mr. John B. Dillon, with whom Mr. Arnold H. Brein, pro se, was on the brief, for plaintiff in error. Messrs. William E. Egan and Frank E. Healy for defendants in error. No. —, original. State of New York v. State of Illinois and Sanitary District of Chicago. October 18, 1926. Bill of complaint filed pursuant to order of October 11, 1926, on motion of Mr. John Holley Clark, Jr., for the complainant, and process ordered to issue returnable on Monday, November 1, 1926. No. 265. Joseph Buchhalter et al. v. Frank Solomon. Error to the Supreme Court of the State of Colorado. Motion to dismiss submitted October 18, 1926. Decided October 25, 1926. Per Curiam. Motion to dismiss granted on authority of Hiriart v. Ballon, 9 Pet. 156, 166; Beall v. New Mexico, 16 Wall. 535, 539; Hopkins v. Orr, 124 U. S. 511, 515; Pease v. Rathbun-J ones Engineering Co., 243 U. S. 273, 278. Messrs. J. J. Luberman 641 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U.S. and Chas. Rosenbaum for defendant in error, in support of the motion. Mr. John T. Bottom for plaintiff in error, in opposition thereto. No. 143. Sam Nelson v. State of California. Error to the District Court of Appeal, Second Appellate District of the State of California. Submitted October 18, 1926. Decided October 25, 1926. Per Curiam. Dismissed for want of a Federal question. (1) Shulthis v. McDougal, 225 U. S. 561, 569; Hull v. Burr, 234 U. S. 712, 720; Norton v. Whiteside, 239 U. S. 144, 147. (2) Barron v. Baltimore, 7 Pet. 243, 247; Twining v. New Jersey, 211 U. S. 78, 93. Messrs. Samuel Herrick and J. L. O’Connor for plaintiff in error. Mr. U. S. Webb for defendant in error. No. 372. R. B. Morris, Doing Business as Morris and Lowther, H. M. Hewitt and Lew Nunamaker, etc., et al. v. William Duby, H. B. Van Duzer, and W. H. Malone, etc. Appeal from the District Court of the United States for the District of Oregon. Argued October 29, 1926. Order entered October 29, 1926. It is now. here ordered, adjudged, and decreed by this court that the decree of the District Court of the United States for the District of Oregon, in this cause, be, and the same is hereby, vacated without costs to either party, and that this cause be, and the same is hereby, remanded to the said District Court with directions to dismiss the bill of complaint on the ground that this case, has become moot through the rescission of the assailed order of the Oregon State Highway Commission, subject, however, to leave to the appellants to move for the vacation of this decree within thirty days herefrom if they question the rescission of such order. Messrs. W. R. Crawford and Edwin C. Ewing for appellants. Mr. J. M. Devers, with whom Mr. I. H. Van Winkle was on the brief, for appellees. See post, p. 651. 42847°—27--41 642 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U.S. No. 175. Herman A. Uihlein, August E. Uihlein, George Uihlein et al. v. State of Wisconsin, Neele B. Neelen, Public Administrator of Milwaukee County, et al. Error to the Supreme Court of the State of Wisconsin. Submitted October 27, 1926. Decided November 1, 1926. Per Curiam. Reversed on the authority of Schlesinger v. Wisconsin, 270 U. S. 230. Messrs. Edwin S. Mack, George P. Miller, and Arthur W. Fairchild for plaintiffs in error. Messrs. Herman L. Ekern and Franklin E. Bump for defendants in error. No. 7, original. State of Wisconsin v. State of Illinois and Sanitary District of Chicago; No. 14, original. State of New York v. State of Illinois and Sanitary District of Chicago. Motion submitted November 1,1926. Decided November 23,1926. Upon motion of the State of New York, it is ordered that the parties to the suit of the State of New York v. State of Illinois and Sanitary District of Chicago be permitted to participate in the taking of evidence in the hearing before the special master heretofore appointed in the case of the State of Wisconsin v. State of Illinois and Sanitary District of Chicago, in like manner as if those suits had been consolidated; and the court reserves to itself authority to order such a consolidation if it becomes proper to do so. But this order is made without prejudice to the authority of the court hereafter to make any order which it may deem proper respecting the matters set forth in the third paragraph of the bill of complaint in the case of the State of New York v. State of Illinois and Sanitary District of Chicago, and respecting the issues that may arise from the presence of that paragraph in that bill of complaint. Messrs. Albert Ottinger, Attorney General of New York, and C. S. Ferris for New York, in support of the motion. Messrs. Oscar E. Carlstrom, Attorney Gen- 643 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. S. eral of Illinois, Cyrus E. Dietz, Hugh S. Johnson, James M. Beck, Hector A. Brouillet, and Morton S. Cressy for defendants. No. 146. Southern Surety Company v. United States. Error to the District Court of the United States for the District of South Dakota. Motion to transfer submitted November 1, 1926. Decided November 23, 1926. Per Curiam. Motion by defendant in error to transfer to the Circuit Court of Appeals for the Eighth Circuit granted on the authority of Salinger v. Loisel, 265 U. S. 224, and Salinger v. United States, 272 U. S. 542. Solicitor General Mitchell for the United States, in support of the motion. Mr. L. H. Salinger for plaintiff in error, in opposition thereto. No. 553. C. Dewey Brian, Gaither Moore, Joseph E. Brian, and Neal Moore v. United States. Error to the District Court of the United States for the Eastern District of Illinois. Motion to dismiss submitted November 1,1926. Decided November 23, 1926. Per Curiam. Dismissed for lack of jurisdiction in this court by reason of § 1 of the Act of February 13, 1925, entitled “An act to amend the Judicial Code, and to further define the jurisdiction of the Circuit Courts of Appeals and of the Supreme Court, and for other purposes.” Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for the United States, in support of the motion. Messrs. Charles A. Houts and Charles A. Karch for plaintiffs in error, in opposition thereto. No. 524. Canal-Commercial Trust and Savings Bank and Union Indemnity Company v. Earl Brewer. Motion submitted November 1,1926, Decided November 644 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. S. 23, 1926. The motion to amend the judgment in this case is denied. Mr. William W. Ross in behalf of Mr. John W. Cutrer for defendant in error, in support of the motion. Messrs. Marcellus Green, Gamer W. Green, and Chalmers Potter for plaintiffs in error, in opposition thereto. See ante, p. 638. No. 7, original. State of Wisconsin v. State of Illinois and the Sanitary District of Chicago. Motions submitted November 1, 1926. Decided November 23, 1926. The motions of the States of Arkansas and Mississippi for leave to intervene are granted. Mr. James M. Beck in behalf of Messrs. William B. Applegate, Daniel N. Kirby, and Cornelius Lynde for the State of Arkansas, and in behalf of Messrs. Rush H. Knox, Daniel N. Kirby, and Cornelius Lynde for the State of Mississippi, in support of the motion. No. —, original. Ex parte William G. Benham. November 23, 1926. The motion for leave to file petition for a writ of habeas corpus is denied. Messrs. Smith W. Bennett and R. R. Nevin for petitioner. No. —, original. Ex parte Vincent I. Whitman et al. November 23, 1926. The motion for leave to file petition for writ of habeas corpus is denied, without prejudice to an application for the writ to the District Court of the United States for the Western District of Pennsylvania as the applicants may be advised. Mr. Vincent I. Whitman, pro se. No. 81. Enrique Collado v. Manuel Nater Girona, Marshal. Appeal from the District Court of the United States for the District of Porto Rico. Argued November 24, 1926, Decided November 29, 1926. Per Curiam. 645 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. S. Affirmed upon the authority of Craig v. Hecht, 263 U. S. 255, 277; Goto v. Lane, 265 U. S. 393, 401; Knewel v. Egan, 268 U. S. 442, 446. Messrs. James A. O’Shea, Charles Hartzell, Alfred Goldstein, and Henry G. Molina for appellant, submitted. Mr. William C. Rigby with whom Messrs. George C. Butte and A. R. Stallings were on the brief, for appellee. No. 309. Olaf Qualsett v. Reinold Kattenburg and Augusta Anderson. Error to the Supreme Court of the State of Nebraska. Motion to dismiss submitted November 23, 1926. Decided November 29, 1926. Per Curiam. Dismissed for want of jurisdiction on the authority of Farrell v. O’Brien, 199 U. S. 89, 100; Toop v. Ulysses Land Co., 237 U. S. 580, 583; Piedmont Power & Light Co. v. Town of Graham, 253 U. S. 193, 195; Seaboard Air Line v. Padgett, 236 U. S. 668, 671. Mr. F. D. Williams for defendants in error, in support of the motion. Mr. Willis E. Reed for plaintiff in error, in opposition thereto. No. 556. Wong Hay Poy, Wong Tung Hung and Wong Bing Yuen v. John D. Nagle, Commissioner of Immigration. Appeal from the District Court of the United States for the Northern District of California. Motion to dismiss submitted November 23, 1926. Decided November 29, 1926. Per Curiam. Dismissed under § 238 of the Judicial Code as amended in § 1 of the Act of February 13, 1925. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for appellee, in support of the motion. Mr. George A. McGowan for appellants, in opposition thereto. No. 561. Mrs. Bill Breaux v. State of Louisiana. Error to the Supreme Court of the State of Louisiana. 646 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U.S. Submitted November 23, 1926. Decided November 29, 1926. Per Curiam. Affirmed on the authority of Adams v. New York, 192 U. S. 585; Hebert v. Louisiana, 272 U. S. 312; and Van Oster v. Kansas, 272 U. S. 465. Mr. A. R. Mitchell for plaintiff in error. Messrs. Percy Saint and E. R. Schowalter for defendant in error. No. 50. Marblehead Land Company v. County of Los Angeles, Prescott F. Cogswell, J. H. Bean, et al., etc. Error to the District Court of Appeal, Second Appellate District, of the State of California. Argued December 2, 1926. Decided December 2, 1926. Per Curiam. Dismissed for want of jurisdiction. Mr. M. F. Mitchell, with whom Mr. Nathan Newby was on the brief, for plaintiff in error. Mr. Everett W. Mattoon appeared for defendants in error. No. 647. Paul Schmolke v. Daniel J. O’Brien, as Chief of Police. Error to the Supreme Court of the State of California. Argued November 30, 1926. Decided December 6, 1926. Per Curiam. Dismissed for want of jurisdiction upon the authority of (1) Pacific States Telephone Co. v. Oregon, 223 U. S. 118; (2) Farrell v. O’Brien, 199 U. S. 89, 100; Toop v. Ulysses Land Co., 237 U. S. 580, 583; Piedmont Power and Light Co. v. Town of Graham, 253 U. S. 193, 195; Seaboard Air Line v. Padgett, 236 U. S. 668, 671. Mr. Theodore M. Stuart, with whom Mr. Jeremiah F. Sullivan was on the brief, for plaintiff in error. Messrs. U. S. Webb and Frank L. Guerena were on the brief for defendant in error. No. 8. John B. Macken and Mary Lois Macken v. City of Waterbury. Error to the Supreme Court of Errors of the State of Connecticut. Argued November 30, OCTOBER TERM, 1926. 647 273 U. S. Decisions Per Curiam, Etc. 1926. Decided December 6, 1926. Per Curiam. Dismissed for want of jurisdiction upon the authority of (1) Pacific States Telephone Co. v. Oregon, 223 U. S. 118; (2) Farrell v. O'Brien, 199 U. S. 89, 100; Toop n. Ulysses Land Co., 237 U. S. 580, 583; Piedmont Power and Light Co. v. Town of Graham, 253 U. S. 193, 195; Seaboard Air Line v. Padgett, 236 U. S. 668, 671. Messrs. Lawrence L. Lewis and Pierre M. Brown for plaintiffs in error, submitted. Mr. Charles O’Connor, with whom Messrs. Francis P. Guilfoile and Terrence F. Carmody were on the brief, for defendant in error. No. 84. Pacific Power and Light Company v. L. D. Bayer, Pearl Durst, William H. Bucher, et al. Error to the Supreme Court of the State of Oregon. Argued December 7,1926. Decided December 7,1926. Dismissed for want of jurisdiction for want of a final judgment. Mr. Henry S. Gray, with whom Messrs. Roger S. Greene and Will R. King were on the brief, for plaintiff in error. Messrs. Elton Watkins and George R. Wilbur were on the brief for defendants in error. No. —, original. Ex parte in the matter of the Delaware, Lackawanna and Western Railroad Company. December 13, 1926. The motion for leave to file petition for a writ of mandamus herein is denied. Mr. Frederic B. Scott for petitioner. No. 500. D. Edmonds, R. B. Edwards, and R. D. Kelly, in behalf of themselves, etc. v. Town of Haskell, Oklahoma, F. N. Shoemaker, as Town Clerk, etc., et al. Error to the Supreme Court of the State of Oklahoma. Motion to dismiss or affirm sub- 648 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. S. mitted December 6, 1926. Decided December 13, 1926. Per Curiam. Dismissed for want of jurisdiction on the authority of Cuyahoga River Power Co. v. Northern Realty Co., 244 U. S. 300, 303; Bilby v. Stewart, 246 U. S. 255, 257; Farson, Son and Co. v. Bird, 248 U. S. 268, 271. Messrs. Almond B. Cochran, R. C. Allen, and I. J. Underwood for defendants in error, in support of the motion. Mr. Charles A. Moon for plaintiffs in error, in opposition thereto. No. 41. Edith Stege, William C. Dohrman (sometimes called W. C. Dohrman), Teresa L. Dohrman, ETC., ET AL. V. ClTY OF RICHMOND AND G. W. CUSHING. Error to the Supreme Court of the State of California. Argued December 1, 1926. Decided December 13, 1926. Per Curiam. Dismissed on the authority of Klinger v. Missouri, 13 Wall. 257, 263. Mr. Leonard J. Mather in behalf of Messrs. R. M. F. Soto and J. W. Dorsey for plaintiffs in error, submitted. Mr. Charles N. Kirkbride, "with whom Mr. Beverly Hodghead was on the brief, for defendants in error. No. 56. Thomas M. Livingston v. United States. Appeal from the Court of Claims. Argued December 6, 7, 1926. Decided December 13, 1926. Per Curiam. Affirmed upon the authority of (1) Tempel v. United States, 248 U. S. 121, 129; United States v. North American Transportation and Trading Co., 253 U. S. 330; Pearson v. United States, 267 U. S. 423; Klebe v. United States, 263 U. S. 188; (2) Hijo v. United States, 194 U. S. 315, 323. Mr. Ashby Williams for appellant. Mr. Alfred A. Wheat, Special Assistant to the Attorney General, with whom Solicitor General Mitchell and Mr. Randolph S. Collins were on the brief, for the United States. OCTOBER TERM, 1926. 649 273 U. S. Decisions Per Curiam, Etc. No. 59. Everett Flint Damon ex rel. Fong Hang Leong v. John B. Johnson, Commissioner of Immigration. Appeal from the District Court of the United States for the District of Massachusetts. Argued December 7, 1926. Decided December 13, 1926. Per Curiam. Affirmed upon the authority of Chin Yow v. United States, 208 U. S. 8, 11; United States ex rel. Bilokumsky v. Tod, 263 U. S. 149, 157; United States ex rel. Tisi v. Tod, 264 U. S. 131, 133. Mr. Everett Flint Damon for appellant. Assistant to the Attorney General Donovan, with whom Solicitor General Mitchell and Mr. Harry S. Ridgely were on the brief, for appellee. No. 62. State of Utah v. Hubert Work, Secretary of the Interior and William Spry, Commissioner of the General Land Office. Appeal from the Court of Appeals of the District of Columbia. Argued December 7, 8, 1926. Decided December 13, 1926. Per Curiam. Affirmed upon the authority of (1) Louisiana v. Garfield, 211 U. S. 70; New Mexico v. Lane, 243 U. S. 52; (2) United States ex rel. Riverside Oil Co. v. Hitchcock, 190 U. S. 316, 324; United States ex rel. Ness v. Fisher, 223 U. S. 683, 692; United States ex rel. Hall v. Payne, 254 U. S. 343. Mr. Patrick H. Loughran, with whom Mr. Harvey H. Cluff was on the brief, for appellant. Mr. Ira E. Robinson, with whom Solicitor General Mitchell, Assistant Attorney General Parmenter, and Mr. George P. Barse were on the brief, for appellees. No. 64. John F. Jenkins v. United States. Appeal from the Court of Claims. Argued December 8, 9, 1926. Decided December 13, 1926. Affirmed upon the authority of (1) Tempel n. United States, 248 U. S. 121,129; United States v. North American Transportation and Trading 650 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. 8. Co., 253 U. S. 330; Pearson v. United States, 267 U. S. 423; Klebe v. United States, 263 U. S. 188; (2) Hijo v. United States, 194 U. S. 315, 323. Mr. John D. Miller, with whom Mr. George A. King was on the brief, for appellant. Mr. Gardiner P. Lloyd, Special Assistant to the Attorney General, with whom Solicitor General Mitchell and Assistant Attorney General Galloway were on the brief, for the United States. No. 66. Chin Wey v. Irving F. Wixon, Acting Commissioner of Immigration. Appeal from the District Court of the United States for the District of Massachusetts. Argued December 9, 1926. Decided December 13, 1926. Per Curiam. Affirmed upon the authority of United States v. Sing Tuck, 194 U. S. 161; United States v. Ju Toy, 198 U. S. 253. Mr. Warren Ozro Kyle for appellant. Solicitor General Mitchell, with whom Assistant to the Attorney General Donovan and Mr. Alfred A. Wheat were on the brief, for appellee. No. —, original. Ex parte in the matter of Edwin C. Jameson, Leroy W. Baldwin, Louis V. Bright, Joseph S. Frelinguysen, and Thomas Read. January 3, 1927. The motion for leave to file petition for a writ of mandamus herein is denied. Mr. Nathan L. Miller, with whom Messrs. Weymouth Kirkland, Robert K. Prentice, John Dickey, Jr., Gerard C. Henderson, and Robert N. Golding were on the brief, for petitioner. No. —, original. Ex parte in the matter of City of New York, Transit Commission, and John F. Gilchrist et al., etc. January 3, 1927. The motion for leave to file petition for writs of mandamus and/or pro- 651 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. S. hibition and/or certiorari is denied. Messrs. George P. Nicholson, George H. Stover, Clarence M. Lewis, and William G. Pullen for petitioners. No. 372. R. B. Morris, doing business as Morris and Lowther et al. v. Wm. Duby, H. B. Van Duzer, and W. H. Malone, etc. January 10, 1927. On consideration of the motion to vacate it is ordered that the decree heretofore entered on October 29 last, be, and it is hereby, vacated, and the case is set for reargument on Monday, February 28 next, after the cases heretofore assigned for that day. Messrs. W. R. Crawford and Edwin C. Ewing for appellants. Messrs. I. H. Van Winkle and J. M. Devers for appellees. See ante, p. 641. No. 141. Do Wing v. John P. Johnson, Commissioner of Immigration. Appeal from the District Court of the United States for the District of Massachusetts. Motion to dismiss or affirm submitted January 3, 1927. Decided January 10, 1927. Per Curiam. Dismissed on the authority of Chin Yow v. United States, 208 U. S. 8, 11; United States ex rel. Bilokumsky v. Tod, 263 U. S. 149, 157; United States ex rel. Tisi v. Tod, 264 U. S. 131, 133. Solicitor General Mitchell for appellee, in support of the motion. Mr. Everett Flint Damon for appellant, in opposition thereto. No. 314. L. Anthony, Alert Transfer and Storage Company, Inc., G. T. Hines, et al., v. Sam A. Kozer, Secretary of State; and No. 373. I. S. Martine, M. C. Yahne, Fred Gordon, et al. v. Sam A. Kozer, Secretary of State. Appeals from the District Court of the United States for the District 652 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. S. of Oregon. Motions to dismiss submitted January 3, 1927. Decided January 10, 1927. Per Curiam. Dismissed for want of jurisdiction on the authority of Moore v. Fidelity and Deposit Co., 272 U. S. 317; In re Buder, 271 U. S. 461. Messrs. I. H. Van Winkle, J. M. Devers, and Willis S. Moore for appellee, in support of the motion. Messrs. Edwin C. Ewing and W. R. Crawford for appellants, in opposition thereto. No. 416. Walter Nelson, Edwin Powell, John Hicks, et al., v. W. G. Potts, Treasurer of the State of Washington; and No. 417. W. S. Cunningham, Redmond Freight Company, R. Strain, et al. v. W. G. Potts, Treasurer of the State of Washington. Appeals from the District Court of the United States for the Western District of Washington. Motions to dismiss submitted January 3, 1927. Decided January 10, 1927. Per Curiam. Dismissed for want of jurisdiction on the authority of Moore v. Fidelity and Deposit Co., 272 U. S. 317; In re Buder, 271 U. S. 461. Mr. John H. Dunbar for appellee, in support of the motion. Messrs. Robert F. Cogswell, Edwin C. Ewing, and W. R. Crawford for appellants, in opposition thereto. No. 564. New York, Ontario & Western Railway Company v. United States and Interstate Commerce Commission. Appeal from the District Court of the United States for the Southern District of New York. Argued January 5, 1927. Decided January 10, 1927. Per Curiam. Affirmed on the authority of § 207 of the Judicial Code. United States v. Illinois Central Railroad Co., 244 U. S. 82. Mr. C. L. Andrus for appellant. Attorney General Sargent and Mr. Blackburn Esterlina, Assist. S. G., were on the brief for the United States, and 653 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U.S. Messrs. Patrick J. Farrell and Oliver E. Sweet on that for the Interstate Commerce Commission. No. 472. R. Burney Long v. State of Louisiana. Error to the Supreme Court of the State of Louisiana. Argued January 6, 1927. Decided January 10, 1927. Per Curiam. Dismissed for want of a Federal1 question on the authority Shulthis v. McDougal, 225 U. S. 561, 569; Hull v. Burr, 234 U. S. 712, 720; Norton v. Whiteside, 239 U. S. 144, 147; and also on the authority of Hebert v. Louisiana, 272 U. S. 312. Mr. M. C. Scharff, with whom Messrs. R. Burney Long, N. Vick Robbins, and Bernard F. Garvey were on the brief, for plaintiff in error. Mr. E. R. Schowalter for defendant in error. No. 80. Louisville and Nashville Railroad Company v. Levy Hall. Error to the Supreme Court of the State of Mississippi. Argued January 6, 1927. Decided January 10, 1927. Per Curiam. Dismissed for want of jurisdiction under § 237 of the Judicial Code, there not appearing in the record of the case before the entry of a final judgment to which this writ of error was allowed that the validity of any statute of the State was drawn in question in the State court. Shulthis v. McDougal, 225 U. S. 561, 569; Hull v. Burr, 234 U. S. 712, 720; Norton v. Whiteside, 239 U. S. 144, 147. Mr. Harry H. Smith for plaintiff in error. Mr. Walter J. Gex for defendant in error, submitted. No. 83. Max Siff and Albert L. Siff, Trading as Siff Brothers Company, v. United States. Appeal from the Court of Claims. Argued January 6, 1927. Decided January 10, 1927. Per Curiam. Affirmed upon the authority of Chamberlain Machine Works v. United States, 270 U. S. 347. Mr. Raymond M. Hudson for appellants. 654 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. S. Solicitor General Mitchell and Assistant Attorney General Galloway were on the brief for the United States. No. 89. State of Ohio ex rel. K. B. Allen v. Joseph A. Lutz, as auditor of Montgomery County, Ohio. Error to the Supreme Court of the State of Ohio. Submitted January 7, 1927. Decided January 10, 1927. Per Curiam. Dismissed under § 237 of the Judicial Code, it not appearing in the record of the case that prior to the final judgment to which this writ of error was allowed there was any challenging averment that the act of the Ohio Legislature in question was repugnant to the Constitution or laws of the United States. Shulthis v. McDougal, 225 U. S. 561, 569; Hull v. Burr, 234 U. S. 712, 720; Norton v. Whiteside, 239 U. S. 144, 147. Messrs. Earl H. Turner and Wellmore B. Turner for plaintiff in error. Messrs A. H. Scharrer and Ralph E. Hoskot for defendant in error. No. 97. United States ex rel. Charles McCaul Company v. Andrew W. Mellon, Secretary of the Treasury. Error to the Court of Appeals of the District of Columbia. Argued January 7, 1927. Decided January 10, 1927. Per Curiam. Dismissed for want of finality in the judgment below on the authority of Oneida Navigation Corp. v. Job and Co., 252 U. S. 521, 522; Collins v. Miller, 252 U. S. 364, 370. Mr. William C. Prentiss for plaintiff in error. Solicitor General Mitchell and Mr. Alfred A. Wheat, Special Assistant to the Attorney General, for defendant in error. No. —, original. Ex parte Lloyd C. Whitmann et al. January 17, 1927. The motion for leave to file petition for writ of habeas corpus herein is denied. Mr. Lloyd C. Whitmann, pro se. 655 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. S. No. 133. Everett Flint Damon ex rel. Chin Wing Dip v. John P. Johnson, Commissioner of Immigration. Appeal from the District Court of the United States for the District of Massachusetts. Motion to affirm submitted January 10,1927. Decided January 17,1927. Per Curiam. Affirmed on the authority of Chin Yow v. United States, 208 U. S. 11; United States ex rel. Bilokumsky v. Tod, 263 U. S. 149, 157; United States ex rel. Tisi v. Tod, 264 U. S. 131, 133. Solicitor General Mitchell for appellee, in support of the motion. Messrs. Everett Flint Damon and Walter B. Farr for appellant, in opposition thereto. No. 110. Lucy Fisher, James Charles, Ellen Stake, nee Charles et al. v. E. J. Crider. Error to the Supreme Court of the State of Oklahoma. Submitted January 10, 1927. Decided January 17, 1927. Per Curiam. Writ of error dismissed for want of jurisdiction on the authority of § 237 of the Judicial Code, as amended by the Act of September 16, 1916, c. 448, § 2, 39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5-6; Tiger v. Fewell, 271 U. S. 649. Motion for rehearing of the application for certiorari also denied. Mr. William Neff for plaintiff in error, submitted. No appearance for defendant in error. No. 98. W. G. Begley v. Nlice Erasime. Error to the Court of Appeals of the State of Kentucky. Argued January 10, 1927. Decided January 17, 1927. Per Curiam. Dismissed for want of jurisdiction on the authority of (1) Farrell v. O’Brien, 199 U. S. 89, 100; Toop v. Ulysses Land Co., 237 U. S. 580, 583; Piedmont Power and Light Co. v. Town of Graham, 253 U. S. 193, 195; Seaboard Air Line v. Padgett, 236 U. S. 668, 671; (2) Murray’s Lessee v. Hoboken Land and Improvement Co., 18 How. 272, 656 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. S. 276; Ownbey v. Morgan, 256 U. S. 94. Mr. Cleon K. Calvert for plaintiff in error. Alice Erasime, pro se. No. 104. Morgan’s Louisiana and Texas Railroad and Steamship Company and Yazoo and Mississippi Valley Railroad Company v. F. A. Cocke. Certiorari to the Circuit Court of Appeals for the Fifth Circuit. Argued January 10, 1927. Decided January 17, 1927. Per Curiam. Reversed on the authority of Phillips Co. v. Grand Trunk Western Ry. Co., 236 U. S. 662; Kansas City Southern Ry. Co. v. Wolf, 261 U. S. 133; Fullertow-Krueger Lumber Co. v. Northern Pacific Ry. Co., 266 U. S. 435; William Danzer and Co. v. Gulf and Ship Island R. R. Co., 268 U. S. 633. Messrs. Harry McCall and Charles N. Burch, with whom Messrs. H. D. Minor and Victor Leovy were on the brief, for petitioners. Mr. Frederick H. Lotterhos, with whom Mr. George Butler was on the brief, for respondent. No. 644. Byron Dunn and Robert Dunn v. State of Louisiana. Error to the Supreme Court of the State of Louisiana. Argued January 10, 1927. Decided January 17, 1927. Per Curiam. Writ of error dismissed for want of a substantial Federal constitutional question on the authority of Farrell v. O’Brien, 199 U. S. 89,100; Toop v. Ulysses Land Co., 237 U. S. 580, 583; Piedmont Power and Light Co., v. Town of Graham, 263 U. S. 193, 195; Seaboard Air Line v. Padgett, 236 U. S. 668, 671. Application f.or certiorari also denied. Mr. M. G. Adams, with whom Mr. C. W. Howth was on the brief, for plaintiffs in error. Messrs. Percy Saint, E. R. Schowalter, and John J. Robira were on the brief for defendant in error. 657 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U.S. No. 512. Frederick L. Miller v. State of Oregon. Error to the Supreme Court of the State of Oregon. Argued January 10, 11, 1927. Decided January 17, 1927. Per Curiam. Affirmed on the authority of Nash v. United States, 229 U. S. 373. Mr. Edward W. Wickey, with whom Messrs Thomas Mannix, Jerry A. Matthews, and Josephus C. Trimble were on the brief, for plaintiff in error. Messrs. Willis S. Moore, Stanley Myers, and I. H. Van Winkle were on the brief for defendant in error. No. 118. W. H. Donham, as Prosecuting Attorney, et. al., etc., v. West-Nelson Manufacturing Company. Appeal from the District Court of the United States for the Eastern District of Arkansas. Submitted January 11, T927. Decided January 17, 1927. Per Curiam. Affirmed on the authority of Adkins v. Children’s Hospital, 261 U. S. 525; Murphy v. Sardell, 269 U. S. 530. Mr. Justice Brandeis dissents. Messrs. J. W. Utley, William T. Hammock, and Brooks Hays for appellants. Mr. George A. McConnell for appellee. No. 112. City and County of Denver v. E. Stenger, as Receiver of the Denver Tramway Company. Appeal from the District Court of the United States for the District of Colorado. Argued January 11, 12, 1927. Decided January 17, 1927. Per Curiam. Appeal transferred to the Circuit Court of Appeals for the Eighth Circuit under the authority of the Act of September 14, 1922, c. 305, 42 Stat. 837, and of the following cases: Aspen Mining and Smelting Co. v. Billings, 150 U. S. 31, 37; Brown v. Alton Water Co., 222 U. S. 325, 331-334; Carter v. Roberts, 177 U. S. 496, 500; Union Trust Co. v. Westhus, 228 U. S. 519, 522, 524; Metropolitan Water Co. v. Kaw 42847°—27------42 658 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. S. Valley Drainage District, 223 U. S. 519, 522-524; Shapiro v. United States, 235 U. S. 412, 415-417; Farmers and Mechanics National Bank v. Wilkinson, 266 U. S. 503, 506. Messrs. Thomas H. Gibson and Henry E. May, with whom Mr. Myron H. Walker was on the brief, for appellant. Mr. Gerald Hughes, with whom Messrs. Clayton C. Dorsey and H. S. Robertson were on the brief, for appellee. No. 121. A. J. Thigpen and A. J. Thigpen, Jr., v. Midland Oil Company. Error to the Circuit Court of Appeals for the Eighth Circuit. Argued January 12, 1927. Decided January 17, 1927. Per Curiam. Writ of error dismissed for want of finality in the judgment of the court below, on the authority of Keike v. United States, 217 U. S. 423, 429. Application for certiorari also denied. Mr. Frank McCoy, with whom Messrs. Elmer E. Grinstead and J. R. Spellman were on the brief, for plaintiffs in error. Messrs. J. W. Finley, Hayes McCoy, George A. Henshaw, Samuel N. Hawkes, and A. C. Hough were on the brief for defendant in error. No. 124. Great Northern Railway Company v. State of Minnesota. Error to the Supreme Court of the State of Minnesota. Argued January 13, 14, 1927. Decided January 17,1927. Per Curiam. Dismissed for want of jurisdiction resulting from an insufficient setting forth and waiver of the claim of a substantial Federal constitutional question in the court below on the authority of Sayward v. Denny, 158 U. S. 180; Oxley Stave Co. v. Butler Co., 166 U. S. 648, 655; Jett Bros. Co. v. City of Carrollton, 252 U. S. 1, 6. Mr. F. G. Dorety, with whom Mr. M. L. Countryman was on the brief, for plaintiff in error. Mr. Patrick J. Ryan, with whom Messrs. Clifford 659 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. S. L. Hilton and G. A. Youngquist were on the brief, for defendant in error. No. 126. Frank C. Mebane, as Receiver of Symes Foundation, Inc., and American Title and Trust Company v. Staten Island Railway Company, Staten Island Rapid Transit Railway Company, New York Transit and Terminal Company et al. Error to the Supreme Court of the State of New York. Argued January 14, 1927. Decided January 17, 1927. Per Curiam. Dismissed for want of jurisdiction for want of a substantial Federal constitutional question on the authority of Farrell v. O’Brien, 199 U. S. 89,100; Toop v. Ulysses Land Co., 237 U. S. 580, 583; Piedmont Power and Light Co. v. Town of Graham, 253 U. S. 193, 195; Seaboard Air Line v. Padgett, 236 U. S. 668, 671. Messrs. Hugh H. O’Bear and Benjamin Catchings, with whom Messrs. Merle I. St. John and Charles A. Douglas were on the briefs, for plaintiffs in error. Messrs. John W. Welsh, John F. Hughes, Q. S. Gilbert, Royal E. T. Riggs, Morgan J. O’Brien, Albert B. Boardman, and Albert Ottinger were on the brief for defendants in error. No. 137. State of Missouri ex rel. Joseph J. Luechte-FELD AND F. WlLLIAM KUEHL V. HENRY W. KlEL, LOUIS Notte, and Oliver Senti. Error to the Supreme Court of the State of Missouri. Argued January 17,18,1927. Decided January 24, 1927. Per Curiam. Dismissed because of want of jurisdiction under the Act of September 6, 1916. Mr. Luke E. Hart for plaintiffs in error. Mr. Oliver Senti was on the brief for defendants in error. No. 138. Industrial Engineering Company v. United States. Appeal from the Court of Claims. Argued January 18, 1927. Decided January 24, 1927. Per Curiam. Affirmed on the authority of Jacob Reed’s 660 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. S. Sons, Inc., v. United States, 273 U. S. 200. Mr. Raymond M. Hudson for appellant, submitted. Assistant Attorney General Galloway, with whom Solicitor General Mitchell was on the brief, for the United States. No. 276. E. A. Edenfield v. United States. Certiorari to the Circuit Court of Appeals for the Fifth Circuit. Argued January 18, 19, 1927. Decided January 24, 1927. Per Curiam. Reversed on the authority of United States v. Katz, 271 U. S. 354, and remanded to the court below for resentence on the first count of each of the three indictments. Mr. W. W. Larsen, with whom Messrs. Frank H. Saffold, John Dekle Kirkland, Francis McD. Oliver, and Edgar J. Oliver were on the brief, for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. John J. Byrne for the United States. No. 139. A. L. Ferguson and A. L. Ferguson, as Executor and Trustee, etc., et al. v. United States. Appeal from the Court of Claims. Argued January 20, 1927. Decided January 24, 1927. Per Curiam. Affirmed on the authority of Jacob Reed's Sons, Inc., v. United States, 273 U. S. 200 and of Baltimore and Ohio Railroad Co. v. United States, 261 U. S. 592. Mr. Raymond M. Hudson for appellants. Solicitor General Mitchell and Assistant Attorney General Galloway were on the brief for the United States. No. 129. Oregon Basin Oil and Gas Company v. Hubert Work, Secretary of the Interior, and William Spry, Commissioner of the General Land Office. Appeal from the Court of Appeals of the District of Columbia. Argued January 14, 17, 1927. Decided January 24, 1927. Per Curiam. The decree below is affirmed upon the authority of Ness v. Fisher, 223 U. S. 661 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. 8. 683; Louisiana v. McAdoo, 234 U. S. 627, 633; Alaska Smokeless Coal Co. v. Lane, 250 U. S. 549; Work n. Rives, 267 U. S. 175, 183. Mr. Charles F. Consaul, with whom Messrs. Charles C. Heitman, and C. W. Burdick were on the brief, for appellant. Solicitor General Mitchell for appellees. No. 176. Willie Conner and John Conner v. H. U. Bartlett, E. G. Bailey, McMann Oil Company, et al. Error to the Supreme Court of the State of Oklahoma. Motion to dismiss submitted January 24, 1927. Decided February 21, 1927. Per Curiam. Dismissed for want of jurisdiction upon the authority of Shulthis v. McDougal, 225 U. S. 561, 569; Hull v. Burr, 234 U. S. 712, 720; Norton v. Whiteside, 239 U. S. 144,147. Messrs. W. H. Francis, B. B. Blakeney, and L. 0. Lytle for defendants in error, in support of the motion. Mr. William Neff for plaintiffs in error, in opposition thereto. No. 842. Anna Nelson v. J. L. Walrod, S. E. Ellsworth, and C. W. Burnham. See post, p. 745. No. —, original. Ex parte in the Matter of William Leather. February 28, 1927. The motion for leave to file petition for a writ of mandamus herein is denied. Mr. Oliver J. Cook for petitioner. No. —, original. Ex parte Semaphoric Indicator Company et al. February 28, 1927. The motion for leave to file petition for a writ of mandamus herein is denied. Mr. William R. Rummler for petitioner. No. —, original. Ex parte Malleable Iron Range Company. February 28, 1927. The motion for leave to file petition for a writ of mandamus herein is denied with- 662 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. 8. out prejudice to a resumption of the application in some other form. Messrs. Arthur W. Fairchild and J. Gilbert Hardgrove for petitioner. No. —, original. Ex parte in the matter of Merle Phillips. February 28, 1927. The motion for leave to file a petition for a writ of habeas corpus herein is denied. Messrs. Frans E. Lindquist, William H. Mason, and Richard 0. Mason for petitioner. No. 299. Paul L. James and W. Willis Houston, Partners, Trading as Pan-Handle Coal Company v. Norfolk and Western Railway Company. Error to the Special Court of Appeals of the State of Virginia. Motion to dismiss or affirm submitted February 21, 1927. Decided February 28, 1927. Per Curiam. Writ of error herein dismissed and, the Court treating the same as an application for certiorari, denies such application, all on authority of Emmons Coal Mining Co. v. Norfolk and Western Railway Co., 272 U. S. 709. Messrs. Robert M. Hughes, Jr., Walter R. Staples, Theodore W. Reath, and J. Hamilton Cheston for defendant in error, in support of the motion. Messrs. Claudian B. Northrop, Gibbs L. Baker, and Thomas W. Shelton for plaintiffs in error, in opposition thereto. No. 812. Frank aWeeke v. United States. Error to the Circuit .Court of Appeals for the Eighth Circuit. Motion to dismiss submitted February 21,1927. Decided February 28,1927. Per Curiam. Writ of error dismissed under § 240 of the Judicial Code as amended by the Act of February 13, 1925 (43 Stat. 936), and, treating the writ of error as a petition for a writ of certiorari, the Court also denies the same. Solicitor General Mitchell and 663 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. S. Assistant Attorney General Willebrandt for the United States, in support of the motion. Mr. Walter A. Hill for plaintiff in error, in opposition thereto. See post, p. 751. No. 722. J. J. Eiseman and Alexander R. Abrams v. State of California; and No. 723. Holmes Ives and N. J. Whelan v. State of California. Error to the District Court of Appeals, First Appellate District of the State of California. Submitted February 21, 1927. Decided February 28, 1927. Per Curiam. Dismissed for lack of jurisdiction in this Court on the authority of Kipley v. Illinois, 170 U. S. 182, 186; New York Central Railroad Co. v. New York, 186 U. S. 269, 273. Messrs. R. P. Henshall, Joseph A. Brown, and /S. A. Riley for plaintiffs in error. Mr. U. S. Webb for defendant in error. No. 739. Fortune Ferguson, Jr. v. State of Florida. Error to the Supreme Court of the State of Florida. Argued February 28, 1927. Decided February 28, 1927. Per Curiam. Dismissed for want of a federal question on the authority of Shulthis v. McDougal, 225 U. S. 561; Hull v. Burr, 234 U. S. 712, 720; Norton v. Whiteside, 239 U. S. 144, 147. Mr. Furman Y. Smith for plaintiff in error. Mr. J. B. Johnson for defendant in error. No. 106. Jacob M. Dickinson, Receiver of the-Chicago, Rock Island and Pacific Railway Company v. United States. Appeal from the Court of Claims. Argued February 23, 1927. Decided February 28, 1927. Per Curiam. Affirmed on the authority (1) of Illinois Central Railroad Co. v. United States, 265 U. S. 209, and (2) of Southern Pacific Co. v. United States, 268 U. S. 263, 664 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. S. Mr. Benjamin Carter for appellant. Solicitor General Mitchell and Assistant Attorney General Galloway for the United States. No. 149. New York Central Securities Corporation v. Cleveland, Cincinnati, Chicago and St. Louis Railway Company and New York Central Railroad Company. Appeal from the District Court of the United States for the Northern District of Ohio. Argued February 24, 1927. Decided February 28, 1927. Per Curiam. The judgment of dismissal herein by the district court for want of jurisdiction is reversed on the authority of General Investment Co. v. New York Central Railroad Co., 271 U. S. 228. Mr. Frederick A. Henry for appellant. Mr. S. H. West for appellees, submitted. No. 151. Knights of the Ku Klux Klan v. State of Kansas ex rel. Charles B. Griffith, Attorney General. Error to the Supreme Court of the State of Kansas. Argued February 24, 1927. Decided February 28, 1927. Per Curiam. Dismissed for want of a federal question on the authority of Shulthis v. McDougal, 225 U. S. 561, 569; Hull v. Burr, 234 U. S. 712, 720; and Norton v. Whiteside, 239 U. S. 144, 147. Mr. John S. Dean, with whom Messrs. William F. Zumbrunn, Harris W. Col-mery, Benjamin H. Sullivan, John H. Connaughton, and William B. Brown were on the brief, for plaintiff in error. Messrs. Charles B. Griffith, John G. Egan, and Thomas A. Lee were on the brief, for defendant in error. No. 162. G. M. Rosengrant, doing business as the Riverside Manufacturing Company v. Eva J. Havard. Error to the Supreme Court of the State of Alabama. Argued February 24, 1927. Decided February 28, 1927, OCTOBER TERM, 1926. 665 273 U. S. Decisions Per Curiam, Etc. Per Curiam. Affirmed on the authority of Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469, and Millers’ Indemnity Underwriters v. Braud, 270 U. S. 59. Mr. Gregory L. Smith for plaintiff in error, submitted. Mr. Vincent F. Killom, with whom Mr. Frederick G. Bromberg was on the brief, for defendant in error. No. 168. Timken Roller Bearing Company v. Pennsylvania Railroad Company; and No. 178. Thomas P. Goodbody, as Receiver of the Hydraulic Steel Company v. Pennsylvania Railroad Company. Error to the District Court of the United States for the Northern District of Ohio. Argued February 25, 1927. Decided February 28, 1927. Per Curiam. Dismissed for lack of jurisdiction in this Court on the authority of Transportes Maritimos Do Estado v. Almeida, 265 U. S. 104, 105, and Oliver American Trading Co. v. United States of Mexico, 264 U. S. 440, 442. Messrs. Luther Day, Rufus Day, William L. Day, and Donald W. Kling for plaintiffs in error, submitted. Mr. Andrew P. Martin, with whom Messrs. Frederic D. McKenney, Thomas M. Kirby, and Andrew Squire were on the brief, for defendant in error. No. 172. George F. Pawling & Company v. United States. Appeal from the Court of Claims. Argued February 28, March 1, 1927. Decided March 7, 1927. Per Curiam. Affirmed on the authority of Robinson v. United States, 261 U. S. 486. Mr. James Craig Peacock, with whom Mr. John W. Townsend was on the brief, for petitioner. Assistant Attorney General Galloway, with whom Solicitor General Mitchell was on the brief, for the United States. 666 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. S. No. 183. Munich Reinsurance Company v. First Reinsurance Company of Hartford. Appeal from the Circuit Court of Appeals for the Second Circuit. Submitted March 1, 1927. Decided March 7, 1927. Per Curiam. Dismissed on the authority of Shulthis v. McDougal, 225 U. S. 561 and of § 240 of the Judicial Code. Messrs. Hartwell Cabell and John J. Cunneen for appellant. Messrs. Lucius F. Robinson and Charles W. Gross for appellee. No. 191. Margay Oil Corporation v. H. W. Apple-gate, as Attorney General of Arkansas, Sam S. Sloan, Treasurer, etc., and John Carroll Cone, Auditor, etc. Error to the Supreme Court of the State of Arkansas. Argued March 4, 1927. Decided March 7, 1927. Per Curiam. Affirmed on the authority of Roberts and Schaefer Co. v. Emerson, 271 U. S. 50. Mr. A. F. House, with whom Messrs. George B. Rose, J. F. Loughborough, D. H. Cantrell, and A. W. Dobbins were on the brief, for plaintiff in error. Messrs. H. W. Applegate and 5. M. Wassell for defendant in error, submitted. No. 192. City of Kansas City, Missouri, v. Robert S. Baker. Error to the Supreme Court of the State of Kansas. Argued March 4, 1927. Decided March 7, 1927. Per Curiam. Dismissed on the authority of Say ward v. Denny, 158 U. S. 180; Oxley Stave Co. v. Butler, 166 U. S. 648; Capital National Bank v. First National Bank, 172 U. S. 425; Kipley v. Illinois, 170 U. S. 182, 186; New York Central Railroad Co. v. New York, 186 U. S. 269, 273. Mr. John T. Barker, with whom Mr. Egbert F. Halstead was on the brief, for plaintiff in error. Mr. Robert S. Baker, pro se. 667 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. TJ. S. No. 315. Fong Suey Chong v. John D. Nagle, Commissioner of Immigration. Appeal from the District Court of the United States for the Northern District of California. Motion to dismiss submitted March 7, 1927. Decided March 14, 1927. Per Curiam. Dismissed for want of jurisdiction under § 238 of the Judicial Code as amended by the Act of February 13, 1925 (43 Stat. 936). Solicitor General Mitchell for appellee, in support of the motion. Mr. George A. McGowan for appellant, in opposition thereto. No. 525. Yip Wah, alias Jim, alias Woo Yip Woo, v. John D. Nagle, Commissioner of Immigration. Appeal from the District Court of the United States for the Northern District of California. Motion to dismiss submitted March 7, 1927. Decided March 14, 1927. Per Curiam. Dismissed for want of jurisdiction under § 238 of the Judicial Code as amended by the Act of February 13, 1925 (43 Stat. 936). Solicitor General Mitchell, As-sistant Attorney General Luhring, and Mr. Harry S. Ridgely for appellee, in support of the motion. Mr. George A. McGowan for appellant, in opposition thereto. No. 195. Robert Gallagher, Joseph A. Dennison, and Daniel V. McIsaac v. John E. Hannigan, Trustee in Bankruptcy of Old Colony Foreign Exchange Company. Appeal from the Circuit Court of Appeals for the First Circuit. Argued March 7,1927. Decided March 14, 1927. Per Curiam. Dismissed for want of jurisdiction on the authority of Central Trust Co. v. Lueders, 239 U. S. 11; William R. Stoats Co. v. Security Trust and Savings Bank, 243 U. S. 121; and Harris v. Moreland Truck Co., 250 U. S. 702. Messrs Lowell A. Mayberry 668 OCTOBER TERM, 1026. Decisions Per Curiam, Etc. 273 U.S. and Robert Gallagher for appellants, submitted. Mr. Edward A. McLaughlin, Jr., with whom Mr. John E. Hannigan was on the brief, for appellee. No. 353. Benjamin or Ben Harmon v. Joseph W. Tyler. Error to the Supreme Court of the State of Louisiana. Argued March 8, 1927. Decided March 14, 1927. Per Curiam. Reversed on the authority of Buchanan v. Warley, 245 U. S. 60. Mr. Loys Charbonnet, with whom Mr. Frank B. Smith was on the brief, for plaintiff in error. Messrs. Francis P. Bums and Walter W. Wright, with whom Mr. J. Zack Spearing was on the brief, for defendant in error. No. 811. Frank W. Keeler v. Stanley Myers, District Attorney, etc., and Thomas M. Hurlburt, Sheriff. Error to and petition for writ of certiorari to the Supreme Court of the State of Oregon. Argued March 9, 1927. Decided March 14, 1927. Per Curiam. Writ of error dismissed for want of jurisdiction under § 237 of the Judicial Code as amended by the Act of February 13, 1925 (43 Stat. 936); and, the Court treating the writ of error as an application for certiorari, denies the certiorari. Mr. Peter Q. Nyce, with whom Mr. Martin L. Pipes was on the brief, for plaintiff in error. Mr. Stanley Myers was on the brief for defendants in error. No. 221. C. S. Gibson, Sheriff, v. National Bond & Investment Company. Error to the District Court of the United States for the District of Kansas. Submitted March 10, 1927. Decided March 14, 1927. Per Curiam. Dismissed for want of jurisdiction under § 238 of the Judicial Code as amended by the Act of February 13, OCTOBER TERM, 1926. 669 273 U. S. Decisions Per Curiam, Etc. 1925 (43 Stat. 936). Messrs. C. B. Griffith, Roland Boynton, and William A. Smith for plaintiff in error. Messrs. Clay C. Rogers and John W. Creekmore for defendant in error. No. 197. Ed C. Curdts, Vardry McBee, Robert Wilson, et al. v. South Carolina Tax Commission. Error to the Supreme Court of the State of South Carolina. Argued March 7, 8, 1927. Decided Mar. 14, 1927. Per Curiam. Judgment affirmed on the authority of Bell’s Gap R. R. Co. v. Pennsylvania, 134 U. S. 232, 237; Heisler v. Thomas Colliery Co., 260 U. S. 245, 254, et seq.; Missouri v. Lewis, 101 U. S. 22, 31; Hayes v. Missouri, 120 U. S. 68, 72; Chappell Chemical Co. v. Sulphur Mines Co., 172 U. S. 474. Mr. P. A. Bonham, with whom Mr. H. O’B. Cooper was on the brief, for plaintiff in error. Mr. Cordie Page, with whom Mr. John M. Daniel was on the brief, for defendant in error. No. —, original. Ex parte in the matter of Louisiana Western Railroad Company. March 21, 1927. The motion for leave to file petition for a writ of mandamus and the motion for a temporary stay in this case are denied. Messrs. Percy Saint, Michael M. Irwin, Francis Williams, and John E. Benton for petitioner. No. —, original. Ex parte in the matter of Morganas Louisiana and Texas Railroad and Steamship Company. March 21, 1927. The motion for leave to file petition for a writ of mandamus and the motion for a temporary stay in this case are denied. Messrs. Percy Saint, Michael M. Irwin, Francis Williams, and John E. Benton for petitioner. 670 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. S. No. —, original. Ex parte in the matter of Franklin and Abbeville Railway Company. March 21,1927. The motion for leave to file petition for a writ of mandamus and the motion for a temporary stay in this case are denied. Messrs. Percy Saint, Michael M. Irwin, Francis Williams, and John E. Benton for petitioner. No. —, original. Ex parte in the matter of Lake Charles and Northern Railroad Company. March 21, 1927. The motion for leave to file petition for a writ of mandamus and the motion for a temporary stay in this case are denied. Messrs. Percy Saint, Michael M. Irwin, Francis Williams, and John E. Benton for petitioner. No. 226. Thomas E. Williams, State Tax Commissioner, J. A. Cates, County Clerk, et al., v. Chicago and Northwestern Railway Company. Appeal from the District Court of the United States for the District of Nebraska. Argued March 11, 1927. Decided March 21, 1927. Per Curiam. Affirmed on the authority (1) of Greene v. Louisville and Interurban Railroad Co., 244 U. S. 499, 516; Sunday Lake Iron Co. v. Township of Wakefield, 247 U. S. 350, 352; Sioux City Bridge Co. v. Dakota County, 260 U. S. 441, 445; and Taylor v. Louisville and Nashville Railroad Co., 88 Fed. 350; and (2) of Crawford v. Neal, 144 U. S. 585, 596; Furrer v. Ferris, 145 U. S. 132, 134; and Warren n. Keep, 155 U. S. 265, 267. Mr. O. S. Spillman, with whom Mr. Hugh LaMaster was on the brief, for appellants. Mr. Wymer Dressier, with whom Messrs. R. N. VanDoren and Samuel H. Cady were on the brief, for appellee. No. 222. Victor Talking Machine Company v. Brunswick-Balke-Collender Company and John 671 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. S. Bailey Browning. Certiorari to the Circuit Court of Appeals for the Third Circuit. Argued March 14, 1927. Decided March 21, 1927. Per Curiam. Affirmed on the authority (1) of Morgan v. Daniels, 153 U. S. 120, and (2) of United States v. State Investment Co., 264 U. S. 206, 211; Brewer OU Co. v..United States, 260 U. S. 77, 86; Bodkin v. Edwards, 255 U. S. 221, 233; National Bank of Athens v. Shackleford, 239 U. S. 81, 82; Wright-Blodgett Co. n. United States, 236 U. S. 297, 402; Washington Securities Co. v. United States, 234 U. S. 76, 78; Texas and Pacific Co. v. Louisiana Railroad Commission, 232 U. S. 338, 339; Chicago Junction Railway Co. v. King, 222 U. S. 222, 224; Page v. Rogers, 211 U. S. 575, 577; Dun v. Lumbermen’s Credit Assn., 209 U. S. 20, 24; and Charleston Mining Co. v. United States, 273 U. S. 320. Messrs. Charles E. Hughes and William H. Kenyon, with whom Messrs. Frederick Bachmann, William C. Mason, and George W. Schurman were on the brief, for petitioner. Mr. Melville Church, with whom Mr. George W. Case, Jr., was on the brief, for respondents. No. 244. E. J. Kelly v. F. E. Watkins and Paul S. Cotner. Error to the Supreme Court of the State of Oklahoma. Submitted March 15, 1927. Decided March 21, 1927. Per Curiam. Dismissed on the authority of the Act of September 6, 1916, c. 448, § 6 (39 Stat. 727), and of Morse v. United States, 270 U. S. 151. Mr. H. A. Ledbetter for plaintiff in error. Messrs. J. B. Moore, W. Y. Dilley and A. T. West for defendants in error. No. 232. Charles B. Beery v. James G. Houghton, as Inspector of Buildings for the City of Minneapolis. Error to the Supreme Court of the State of Min- 672 OCTOBER TERM, 1926. 273 U. S Decisions Per Curiam, Etc. nesota. Argued March 15, 1927. Decided March 21, 1927. Per Curiam. Affirmed on the authority of Village of Euclid v. Ambler Realty Company, 272 U. S. 365. Messrs. Charles B. Elliott and Charles S. Lobingier for plaintiff in error, submitted. Mr. Richard S. Wiggin for defendant in error. No. 233. American Railway Express Company and Clinton H. McKay v. Jacob Kriger. Certiorari to the Supreme Court of the State of Tennessee. Argued March 15, 1927. Decided March 21, 1927. Per Curiam. Reversed on the authority of Barrett v. Van Pelt, 268 U. S. 85, 90; Davis v. Roper Lumber Co., 269 U. S. 158; and Chesapeake and Ohio Railway v. Thompson Manufacturing Co., 270 U. S. 416. Mr. Clinton H. McKay, with whom Messrs. Charles N. Burch, H. D. Minor, H. S. Marx, and A. M. Hartung were on the brief, for petitioners. Mr. Auvergne Williams for respondent. No. 234. Seaboard Air Line Railway v. United States. Appeal from the Court of Claims. Argued March 15, 16, 1927. Decided March 21, 1927. Per Curiam. Affirmed on the authority of St. Louis, Brownsville and Mexico Railway Co. v. United States, 268 U. S. 169, and Southern Pacific Co. v. United States, 268 U. S. 263. Mr. Benjamin Carter for appellant. Assistant Attorney General Galloway, with whom Solicitor General Mitchell was on the brief, for the United States. No. 260. Miller Lumber Company, Archer Lumber Company, Theo Fathauer Lumber Company, et al. v. W. E. Floyd, Ed Harper and Clay Henderson, as Commissioners COMPOSING THE ARKANSAS RAILROAD COM- OCTOBER TERM, 1926. 673 273 U.S. Decisions Per Curiam, Etc. . mission. Error to the Supreme Court of the State of Arkansas. Submitted March 17, 1927. Decided March 21, 1927. Per Curiam. Affirmed on the authority of Stratton’s Independence, Ltd., v. Howbert, 231 U. S. 399, and Oliver Iron Mining Co. v. Lord, 262 U. S. 172. Messrs. Charles P. Coleman and Allen Hughes for plaintiffs in error. Mr. H. W. Applegate for defendants in error. No. 256. Atlantic Coast Line Railroad Company v. George L. Wimberley, Jr., Administrator. Certiorari to the Supreme Court of the State of North Carolina. Argued March 18, 1927. Decided March 21, 1927. Per Curiam. Reversed on the authority of St. Louis-San Francisco Railway Co. v. Mills, 271 U. S. 344, and Chicago, Milwaukee, and St. Paul Railway Co. v. Coogan, 271 U. S. 472. Mr. Thomas W. Davis for petitioner. Mr. Joseph B. Ramsey for respondent, submitted. No. —, original. Ex parte Maison Dorin Societe Anonyme. April 11, 1927. The motion for leave to file a petition for a writ of mandamus in this cause is denied. Messrs. Howard Thayer Kingsbury, Hugo Mock, and Asher Blum for petitioner. No. 15, original. Thomas Contreras v. United States. April 11, 1927. Motion for leave to file petition for writ of mandamus to compel the allowance of a writ of error from the District Court of Alaska is denied for the reason that the motion contains no averment of fact or law that would justify the issuance of such a writ. The motion to proceed further herein in forma pauperis is therefore also denied, but the costs already incurred herein by 42847°—27----------43 674 OCTOBER TERM, 1926. Decisions Per Curiam, Etc. 273 U. S. direction of the Court shall be paid by the Clerk from the special fund in his custody as provided in an order of October 29, 1926. Mr. Thomas Contreras, pro se. No appearance for the United States. No. 783. Malleable Iron Range Company v. United States. Certiorari to the Court of Claims. Motion to remand for additional findings. Motion submitted March 21,1927. Decided April 11, 1927. The motion is granted, and the cause is remanded for additional findings by the Court of Claims from the evidence already introduced before the Court of Claims in respect to the outlay in bonds or money required to be deposited by the petitioner herein in securing a stay of the execution of the judgment against the petitioner in the suit against it by the United States in the United States District Court for the Eastern District of Wisconsin and in the Circuit Court of Appeals for the Seventh Circuit. Messrs. Arthur W. Fairchild and J. Gilbert Hardgrove for petitioner, in support of the motion. Solicitor General Mitchell, Assistant Attorney General Galloway, and Mr. Fred K. Dyar for the United States, in opposition thereto. No. 942. Ida Conley v. N. J. Wollard, Administrator of the Estate of Ethan L. Zane, Deceased. Error to the Supreme Court of the State of Kansas. April 11, 1927. Motion for leave to proceed further herein in forma pauperis is denied for the reason that the record discloses no state statute alleged to be repugnant to the Constitution, treaties, or laws of the United States as required to sustain a writ of error brought to this Court under § 237 of the Judicial Code as amended by the Act of February 13,1925, 43 Stat. 936, and the writ of error must 675 OCTOBER TERM, 1926. Decisions Granting Certiorari. 273 U. S. be and accordingly is dismissed. Likewise, deeming the writ of error an application for certiorari, the Court can find no federal question whatever involved herein and therefore denies that writ. The costs already incurred herein by direction of the Court shall be paid by the Clerk from the special fund in his custody as provided in an order of October 29, 1926. Lyda, B. Conley for plaintiff in error. No appearance for defendant in error. PETITIONS FOR CERTIORARI GRANTED, FROM OCTOBER 4, 1926, TO AND INCLUDING APRIL 11, 1927. No. 362. Liggett and Myers Tobacco Company v. United States. October 11, 1926. Petition for writ of certiorari to the Court of Claims granted. Messrs. Chester A. Gwinn and Adrian C. Humphreys for petitioner. Solicitor General Mitchell for the United States. No. 377. Ray C. Simmons v. Edward P. Swan. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit granted. Mr, Percy S. Bryant for petitioner. Mr. William A. Davenport for respondent. No. 385. City of Hammond v. Schappi Bus Line (Inc.). October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Messrs. L. T. Michener and John A. Gavit for petitioner. Mr. William J. Whinery for respondent. No. 386. City of Hammond v. Farina Bus Line and Transportation Company. October 11, 1926. Petition 676 OCTOBER TERM, 1926. Decisions Granting Certiorari. 273 U. S. for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Messrs. L. T. Michener and John A. Gavit for petitioner. Messrs. Jesse J. Ricks and Edmond W. Hebei for respondent. No. 387. Mercantile Trust Company of St. Louis, Missouri v. Wilmot Road District. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit granted. Messrs. George B. Rose, 8. A. Mitchell, 8. H. Cantrell, J. F. Loughborough, and A. W. Dobyns for petitioner. Mr. Robert E. Wiley for respondent. No. 394. C. G. Lewellyn, Collector of Internal Revenue, v. Electric Reduction Company. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Solicitor General Mitchell for petitioner. No appearance for respondent. No. 409. Andrew W. Mellon, Director General of Railroads, v. Arkansas Land & Lumber Company. October 11, 1926. Petition for writ of certiorari to the Supreme Court of the State of Arkansas granted. Mr. J. Q. Mahaffey for petitioner. Mr. E. F. McFaddin for respondent. : No. 436. A. B. Leach and Company, Inc., v. Walter Peirson. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Messrs. Francis Rawle, Henry M. Earle, and Joseph W. Henderson for petitioner. Mr. James M. Brown for respondent. 677 OCTOBER TERM, 1926. Decisions Granting Certiorari. 273 U.S. No. 412. Bedford Cut Stone Company et al., v. Journeymen Stone Cutters’ Association of North America et al. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Messrs. Daniel Davenport, Charles Martindale, and Walter Gordon Merritt for petitioners. Messrs. Moses B. Lairy, Edward E\ Gates, and Frederick Van Nuys for respondents. No. 465. Wallace R. Farrington, Governor of the Territory of Hawaii, et al. v. T. Tokushige et al. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Messrs. William B. Lymer and Lawrence H. Cake for petitioners. Messrs. Joseph Lightfoot and Joseph B. Poindexter for respondents. No. 482. Henry W. McMaster and Francis H. Skel-ding, as Receivers of the Wabash Pittsburgh Terminal Railway Company, v. George J. Gould et al., etc. October 18, 1926. Petition for a writ of certiorari to the Supreme Court of the State of New York granted. Messrs. Louis Marshall and James Marshall for petitioners. Mr. William Wallace, Jr., for respondents. No. 497. E. Paul Yaselli v. Guy D. Goff. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Messrs. E. Paul Yaselli, pro se, and Alfred Cerceo for petitioner. Mr. Nathan A. Smyth for respondent. No. 503. E. W. Bliss Company v. United States. October 18, 1926. Petition for a writ of certiorari to the Court of Claims granted. Messrs. Bynum E. Hinton and 678 OCTOBER TERM, 1926. Decisions Granting Certiorari. 273 U. S. George A. King for petitioner. Solicitor General Mitchell, Assistant Attorney General Galloway, Messrs. Perry W. Howard and Louis R. Mehlinger for the United States. No. 507. Arnold J. Hellmich, Collector of Internal Revenue, v. Missouri Pacific Railroad Company. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit granted. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. Sewall Key for petitioner. Messrs. Edward J. White, Merritt U. Hayden, and James F. Green for respondent. No. 511. Pueblo of Santa Rosa v. Albert B. Fall, Secretary, et al. October 25, 1926. The petition for a writ of certiorari in this case is granted and the case set for hearing on January 10 next, after the cases heretofore assigned for that day, on the issue as to the existence of authority of counsel who filed the bill to represent complainant. Messrs. Louis Kleindeinst, W. C. Reid, and Levi H. David for petitioner. Solicitor General Mitchell and Assistant Attorney General Parmenter for respondents. No. 531. Charles H. Phelps, etc., et al. v. United States. October 25, 1926. Petition for a writ of certiorari to the Court of Claims granted. Messrs. L. Russell Alden, Charles S. Haight, and Harold S. Deming for petitioners. Solicitor General Mitchell for the United States. No. 539. Chesapeake and Ohio Railway Company v. K. S. Leitch. October 25, 1926. Petition for a writ of certiorari to the Supreme Court of Appeals of the State of OCTOBER TERM, 1926. 679 273 U. S. Decisions Granting Certiorari. West Virginia granted. Mr. Douglas W. Brown for petitioner. Messrs. George B. Martin, John H. Holt, and Rufus S. Dinkle for respondent. No. 540. Richmond Screw Anchor Company, Inc. v. United States. October 25, 1926. Petition for a writ of certiorari to the Court of Claims granted. Messrs. Joseph W. Cox, Archibald Cox, 0. Ellery Edwards, and William H. Kenyon for petitioner. Solicitor General Mitchell and Assistant Attorney General Galloway for the United States. No. 542. Missouri' Pacific Railroad Company v. Mary I. Aeby. October 25, 1926. Petition for a writ of certiorari to the Supreme Court of the State of Missouri granted. Messrs. Merritt U. Hayden, Edward J. White, and James F. Green for petitioner. Messrs. Patrick H. Cullen and Thos. T. Fauntleroy for respondent. No. 546. Robins Dry Dock and Repair Company v. George Flint et al. October 25, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Mr. James K. Symmers for petitioner. Messrs. H. Allen Dawson, Roscoe H. Hupper, and William J. Dean for respondents. No. 547. John James Jackson et al. v. Steamship “Archimedes ” et al. October 25, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Messrs. John W. Davis and Silas Blake Axtell for petitioners. Messrs. Van Vechten Veeder and William J. Dean for respondents. 680 OCTOBER TERM, 1926. Decisions Granting Certiorari. 273 U. S. No. 552. Missouri-Kansas-Texas Railroad Company of Texas v. J. H. King. October 25, 1926. Petition for a writ of certiorari to the Court of Civil Appeals, Fourth Supreme Judicial District of the State of Texas, granted. Messrs. Alexander.H. McKnight,-Joseph M. Bryson, and Charles C. Huff for petitioner. No appearance for respondent. No. 557. A. W. Duckett and Company, Inc. v. United States. October 25, 1926. Petition for a writ of certiorari to the Court of Claims granted. Messrs. Ernie Adamson and Don R. Almy for petitioner. Solicitor General Mitchell for the United States. No. 568. United States Steel Products Company etc. v. Donald J. Adams. November 1, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit granted. Messrs. George Denegre, Victor Leovy, Henry H. Chaffe, Harry McCall, James H. Bruns, and John M. Woolsey for petitioners. No appearance for respondent. No. 577. St. Louis and San Francisco Railroad Company et al. v. E. B. Spiller et al. November 1, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit granted. Mr. Edward T. Miller for petitioners. Messrs. S. H. Cowan, John S. Leahy, and Walter H. Saunders for respondents. No. 592. H. L. Eveland, Hugh Smith, and B. W. Baer, Constituting Tax Commission of the State of South Dakota, v. Chicago and Northwestern Railway Company. November 1, 1926. Petition.for a writ of certiorari to the Circuit Court of Appeals for the 681 OCTOBER TERM, 1926. Decisions Granting Certiorari. 273 U. S. Eighth Circuit granted. Messrs. Byron S. Paine and Samuel Herrick for petitioners. Mr. A. K. Gardner for respondent. See post, p. 775. No. 601. Aetna Insurance Company et al. v. Ben C. Hyde, Superintendent, etc. November 1, 1926. Petition for a writ of certiorari to the Supreme Court of the State of Missouri granted. Messrs. Charles E. Hughes, Robert J. Folonie, William S. Hogsett, Ashley Cockrill, and John S. Leahy for petitioners. Messrs. North T. Gentry and John T. Barker for respondent. No. 570. United States v. United Cigar Stores Company of America. November 23, 1926. Petition for a writ of certiorari to the Court of Claims granted. Solicitor General Mitchell, Assistant Attorney General Galloway, and Mr. A. W. Gregg for the United States. Messrs. S. M. Stroock, C. C. Carlin, and M. Carter Hall for respondent. No. 604. United States Shipping Board Emergency Fleet Corporation v. Western Union Telegraph Company. November 23, 1926. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia granted. Solicitor General Mitchell, Messrs, Chauncey G. Parker, and Ralph H. Hallett for petitioner. Messrs. Francis R. Stark and Paul E. Lesh for respondent. __________ No. 605. N. and G. Taylor Company, Inc. v. John A. Anderson and C. A. Gustafson, doing business, etc. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Messrs. Henry S. Drinker, Jr., and Robert W. Childs for petitioner. Mr. Hobart P. Young for respondents. 682 OCTOBER TERM, 1926. Decisions Granting Certiorari. 273 U. S. No. 607. John D. Nagle, Commissioner of Immigration v. Loi Hoa. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Solicitor General Mitchell and Assistant Attorney General Duhring for petitioner. No appearance for respondent. No. 608. John D. Nagle, Commissioner of Immigration v. Lam Young, for and on Behalf of Phuong Con. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Solicitor General Mitchell and Assistant Attorney General Duhring for petitioner. No appearance for respondent. No. 609. Daniel V. Harkin et al. v. Edward J. Brundage, Receiver, etc., et al. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Messrs. Lloyd C. Whitman and Bernhardt Frank for petitioners. Messrs Ralph F. Potter, Edward R. Johnston, and Henry Jackson Darby for respondents. No. 615. Frank K. Bowers, Collector of Internal Revenue, v. Walter E. Frew, Warren B. Nash et al., etc. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Solicitor General Mitchell for petitioner. Messrs. Abram J. Rose, Alfred A. Petti, and Philip M. Brett for respondents. No. 617. United States Shipping Board Emergency Fleet Corporation v. Rosenberg Brothers and Company. November 23, 1926. Petition for a writ of cer- 683 OCTOBER TERM, 1926. Decisions Granting Certiorari. 273 U. s. tiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Solicitor General Mitchell, Messrs. J. Frank Staley, Arthur M. Boal, Frederick R. Conway, and Ira S. Lillick for petitioner. Messrs. J. M. Mannon, Jr., and Farnum P. Griffith for respondent. No. 618. United States Shippings Board Emergency Fleet Corporation v. California Wine Association. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Solicitor General Mitchell, Messrs. J. Frank Staley, Arthur M. Boal, Frederick R. Conway, and Ira S. Lillick for petitioner. Messrs. J. M. Mannon, Jr., and Farnum P. Griffith for respondent. No. 619. United States Shipping Board Emergency Fleet Corporation v. S. L. Jones and Company. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Solicitor General Mitchell, Messrs. J.. Frank Staley, Arthur M. Boal, Frederick R. Conway, and Ira S. Lillick for petitioner. Messrs. J. M. Mannon, Jr., and Farnum P. Griffith for respondent. No. 626. United States v. David R. J. Arnold, as Administrator, etc. November 23, 1926. Petition for a writ of certiorari to the Court of Claims granted. Solicitor General Mitchell, Assistant Attorney General Galloway, and Mr. A. W. Gregg for the United States. Mr. T. Ludlow Chrystie for respondent. No. 627. United States v. George P. Miller et al., etc. November 23, 1926. Petition for a writ of certiorari to the Court of Claims granted. Solicitor General Mitch- 684 OCTOBER TERM, 1926. Decisions Granting Certiorari. 273 U. S. ell, Assistant Attorney General Galloway, and Mr. Fred K. Dyar for the United States. Mr. William M. Williams for respondents. No. 642. Ingram-Day Lumber Company v. Sidney C. McLouth, Revived against The American Loan and Trust Company, etc. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit granted. Messrs. George L. Canfield, W. A. White, and Sidney T. Miller for petitioner. No appearance for respondents. No. 655. Arthur Maul v. United States. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Messrs. Howard M. Long and Moses E. Clapp for petitioner. Solicitor General Mitchell and Assistant Attorney General Willebrandt for the United States. No. 661. Equitable Trust Company, as trustee, etc., v. First National Bank of Trinidad, Colorado. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Mr. Godfrey Goldmark for petitioner. Mr. William DeForest Manice for respondent. No. 662. Andrew W. Mellon, Director General of Railroads, etc., v. Edward Goodyear, as administrator, etc. November 23, 1926. Petition for a writ of certiorari to the Supreme Court of the State of Kansas granted. Messrs. M. L. Bell, W. F. Dickinson, Thomas P. Littlepage, Luther Bums, J. E. DuMars, and W. D. Vance for petitioner. Messrs. Edwin C. Brandenburg and John F. McClure for respondent. 685 OCTOBER TERM, 1926. Decisions Granting Certiorari. 273 U.S. No. 669. United States v. Leib Ritterman. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Solicitor General Mitchell, Messrs. J. Kennedy White, and Harry B. Arney for the United States. Mr. Albert MacC. Barnes, Jr., for respondent. No. 673. Ed. W. Hopkins, Assessor, et al. v. Southern California Telephone Company et al. November 29, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Mr. Everett W. Mattoon for petitioners. Messrs. Oscar Lawler, F. D. Madison, and Alfred Sutro for respondents. No. 697. United States v. Moritz Neuberger. November 29, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Solicitor General Mitchell for the United States. Mr. Louis Marshall for respondent. See post, p. 777. No. 705. Robert David Kercheval, otherwise called “ Bob ” Kercheval, etc., v. United States. November 29, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit granted. Messrs. William E. Leahy, William J. Hughes, Jr., and Edward J. Callahan for petitioner. Solicitor General Mitchell, Assistant to the Attorney General Donovan, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for the United States. No. 727. Delaware, Lackawanna & Western Railroad Company v. John Rellstab, Judge of the United States District Court for the Distrct of New Jersey, et al. December 13, 1926. Petition for a writ of certio- 686 OCTOBER TERM, 1926. Decisions Granting Certiorari. 273 U. S. rari to the Circuit Court of Appeals for the Third Circuit granted. Mr. Frederic B. Scott for petitioner. Mr. Isidor Kalisch for respondents. No. 719. Mammoth Oil Company et al. v. United States. January 3, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit granted. Messrs. George P. Hoover, John W. Lacey, Martin W. Littleton, Paul D. Cravath, J. W. Zevely, Edward H. Chandler, and G. T. Stanford for petitioners. Messrs. Atlee Pomerene and Owen J. Roberts for the United States. No. 744. Henry Wilson, F. A. Wilson, W. T. Wilson, et al. v. Pacific Mail Steamship Company et al. January 10, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Mr. Louis T. Hengstler for petitioner. Messrs. Edward J. McCutchen, Warren Olney, Jr., and Farnum P. Griffith for respondents. No. 747. Delaware, Lackawanna & Western Railroad Company v. Town of Morristown, Henry Laden, et al. January 10, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Messrs. John W. Davis, Maximilian M. Stallman, and J. L. Seager for petitioner. Mr. Robert H. McCarter for respondents. No. 752. United States v. James M. Lee, alias James M. Leach. January 10, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the First Circuit granted. Solicitor General Mitchell and Assistant Attorney General Willebrandt, for the United States. No appearance for respondent. 687 OCTOBER TERM, 1926. Decisions Granting Certiorari. 273 U. 8. No. 764. Jessie L. Wickwire, Individually and as Executrix and Trustee under the Last Will and Testament of Edward L. Wickwire v. Mabel G. Reinecke, as Collector and as Acting Collector of Internal Revenue, etc. January 10, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Mr. Forest D. Siefkin for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. Sewall Key for respondent. No. 770. F. H. Mason v. C. F. Routzahn, Collector of Internal Revenue. January 17, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit granted. Messrs. Horace Andrews and £ M. Jett for petitioner. Solicitor General Mitchell and Assistant Attorney General Willebrandt for respondent. No. 791. L. M. Willcuts, Collector of Internal Revenue v. Milton Dairy Company. January 24, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit granted. Solicitor General Mitchell, Messrs. A. W. Gregg and J. R. Wheeler for petitioner. Mr. Haydn S. Cole for respondent. No. 799. S. M. Gorieb v. Charles D. Fox et al., Members of the City Council of Roanoke, Virginia, et al. February 21, 1927. Petition for a writ of certiorari to the Supreme Court of Appeals of the State of Virginia granted. Mr. G. A. Wingfield for petitioner. Messrs. Robert C. Jackson and Charles D. Fox, pro se, for respondents. 688 OCTOBER TERM, 1926. Decisions Granting Certiorari. 273 U. S. No. 801. United States v. W. A. McFarland and J. Norris McFarland, Copartners, trading as Henry Marcus and Son. February 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit granted. Solicitor General Mitchell for the United States. Mr. William H. Hudgins for respondents. No. 783. Malleable Iron Range Company v. United States. February 28, 1927. Petition for a writ of certiorari to the Court of Claims granted. Messrs. Arthur W. Fairchild and J. Gilbert Hardgrove for petitioner. Solicitor General Mitchell, Assistant Attorney General Galloway, and Mr. Fred K. Dyar for the United States. No. 823. Toledo, St. Louis and Western Railroad Company v. Hilbert Stuart Allen. February 28, 1927. Petition for a writ of certiorari to the Supreme Court of the State of Missouri granted. Messrs. James C. Jones, Walter A. Eversman, Edward C. Crow, Lon 0. Hocker, and Frank H. Sullivan for petitioner. No appearance for respondent. No. 836. Arthur H. Lamborn, Gerard P. Tameling, Charles C. Riggs, et al v. National Bank of Commerce of Norfolk, Virginia. February 28, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit granted. Messrs. Louis 0. Van Doren, Edward R. Baird, Jr., H. G. Connor, Jr., and Edward S. Bentley for petitioners. Mr. Tazewell Taylor for respondent. No. 813. Pressed Steel Car Co. v. United States. See post, p. 780. No. 848. United States ex rel. Niels Peter Claussen v. Henry H. Curran, Commissioner of Immigra- 689 OCTOBER TERM, 1926. Decisions Granting Certiorari. 273 U. S. tion. March 7, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Mr. Silas B. Axtell for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for respondent. No. 850. W. C. Tucker v. Acel C. Alexander, Commissioner of Internal Revenue. March 7, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit granted. Mr. C. H. Garnett for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, Messrs. Sewall Key, A. W. Gregg, and Fred W. Dewart for respondent. No. 851. United States v. Manly S. Sullivan. March 7, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit granted. Solicitor General Mitchell, Assistant Attorney General Willebrandt, Messrs. Sewall Key, and A. W. Gregg for the United States. Messrs. Frederick W. Aley and E. Willoughby Middleton for respondent. No. 854. James W. Bothwell, William J. Michel, et al., Receivers of Employers Mutual Insurance and Service Company v. Buckbee, Mears Company. March 7, 1927. Petition for a writ of certiorari to the Supreme Court of the State of Minnesota granted. Messrs. Morton Barrows and George P. Metcalf for petitioners. Messrs. William H. Oppenheimer and Montreville J. Brown for respondent. No. 858. Finance and Guaranty Company v. Henry W. Oppenhimer, Trustee in Bankruptcy for W. A. Lee, Trading as National Motor Company, Bankrupt. March 7, 1927. Petition for a writ of certiorari to the 42847°—27 44 690 OCTOBER TERM, 1926. Decisions Granting Certiorari. 273 U.S. Circuit Court of Appeals for the Fourth Circuit granted. Mr. S. M. Brandt for petitioner. No appearance for respondent. No. 860. Katherine Linstead, Executrix of the Estate of John A. Linstead, deceased, v. Chesapeake & Ohio Railway Company. March 14, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit granted. Katherine Linstead, pro se. No appearance for respondent. No. 852. Ancient Egyptian Arabic Order Nobles of the Mystic Shrine, etc., et al. v. D. W. Michaux, Chester H. Bryan, A. J. Dow, et al. March 14, 1927. Petition for a writ of certiorari to the Supreme Court of the State of Texas granted. Messrs. James E. White and Samuel A. T. Watkins for petitioners. No appearance for respondents. No. 863. Pacific Mail Steamship Company, Claimant of the Steamship “ Newport,” her Engines, etc., et al. v. Henry Wilson, F. A. Wilson, W. T. Wilson, et al. March 14, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Messrs. Edward J. McCutchen, Warren Olney, Jr., and Farnum P. Griffith for petitioners. No appearance for respondents. No. 866. Black and White Taxicab and Transfer Company v. Brown and Yellow Taxicab and Transfer Company. March 14, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit granted. Mr. John L. Stout for petitioner. No appearance for respondent. 691 OCTOBER TERM, 1926. Decisions Granting Certiorari. 273 U. S. No. 653. Seaboard Air Line Railway Company v. State of Florida ex rel. R. Hudson Burr, A. S. Wells, ET AL., ETC., AND No. 654. Atlantic Coast Line Railroad Company v. State of Florida ex rel. R. Hudson Burr, A. S. Wells, et al., etc. March 21, 1927. The orders of November 23, 1926, denying the petitions for writs of certiorari in these cases are hereby revoked and it is now here ordered that the petitions for writs of certiorari in these cases be, and they are hereby, granted. Mr. James F. Wright for petitioner in No. 653. Messrs. W. E. Kay, Thomas B. Adams, Frank W. Gwathmey, and Thomas W. Davis for petitioner in No. 654. Messrs. Fred H. Davis and George C. Bedell for respondents. See post, pp. 729, 730. No. 872. Atlantic Coast Line Railroad Company v. Standard Oil Company of Kentucky. March 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit granted. Messrs. Helm Bruce and Thomas W. Davis for petitioner. No appearance for respondent. " No. 873. Standard Oil Company, Incorporated in Kentucky, v. Atlantic Coast Line Railroad Company. March 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit granted. Messrs. Charles S. Middleton, Edward P. Humphrey, and William W. Crawford for petitioner. No appearance for respondent. No. 891. Gulf, Mobile and Northern Railroad Company v. L. G. Touchstone. March 21, 1927. Petition for a writ of certiorari to the Supreme Court of the State of Mississippi granted. Mr. Ellis B. Cooper for petitioner. No appearance for respondent. 692 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 966. George McNeir v. Charles V. Anderson, Collector of Internal Revenue. March 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Mr. Russell L. Bradford for petitioner. Solicitor General Mitchell for respondent. No. 816. Goodyear Tire and Rubber Company v. United States. April 11, 1927. Petition for a writ of certiorari to the Court of Claims granted. Messrs. Spencer Gordon and Dean G. Acheson for petitioner. Solicitor General Mitchell, Assistant Attorney General Galloway, and Mr. John E. Hoover for the United States. No. 829. Samuel J. Kornhauser v. United States. April 11, 1927. Petition for a writ of certiorari to the Court of Claims granted. Mr. L. L. Hamby for petitioner. Solicitor General Mitchell and Assistant Attorney General Galloway for the United States. No. 915. Corona Cord Tire Company v. Dovan Chemical Corporation. April 11, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Messrs. Dean S. Edmonds, Frank E. Barrows, and William H. Davis for petitioner. Messrs. John W. Davis and James J. Kennedy for respondent. PETITIONS FOR CERTIORARI DENIED OR DISMISSED, FROM OCTOBER 4, 1926, TO AND INCLUDING APRIL 11, 1927. No. 1224. John Lapique, Assignee of the Estate of Miguel Leonis, et al. v. District Court of the United States for the Southern District of California et al. See ante, p. 635. 693 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U.S. No. 522. Kate Tendler v. Morris Tendler. Petition for writ of certiorari to the Court of Appeals of the District of Columbia. October 11, 1926. Per Curiam. The motion for leave to proceed in forma pauperis is denied for the reason that upon examination of the unprinted record the court finds no ground for certiorari, application for which is also denied. Messrs. Harry A. Hegarty and Edwin A. Mooers for petitioner. Messrs. E. Hilton Jackson and Morgan H. Beach for respondent. No. 437. Daniel J. Hart v. H. B. North et al. See ante, p. 637. No. 248. Jacob Goldman v. State of Illinois. See ante, p. 637. No. 524. Canal-Commercial Trust & Savings Bank and Union Indemnity Company v. Earl Brewer. See ante, p. 638. No. 657. Davis F. Mitchell v. United States. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit. October 11, 1926. Per Curiam. Motion to proceed further in forma pauperis is denied for the reason that upon examination of the unprinted record the court finds no ground for certiorari, the application for which is also denied. Mr. David F. Mitchell, pro se. The Attorney General for the United States. No. 371. Rothschild Francis v. George Washington Williams, Judge of the District Court of the Virgin Islands. October 11, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. David Wallerstein for petitioner. Mr. Charles H. Gibson for respondent. 694 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 374. Pulitzer Publishing Company v. Houston Printing Company. October 11,1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. John F. Green for petitioner. No appearance for respondent. No. 376. Missouri Pacific Railroad Company v. H. K. Wellborn and J. A. Walls, under the Firm Name of Wellborn and Walls. October 11, 1926. Petition for writ of certiorari to the Supreme Court of the State of Arkansas denied. Messrs. Robert E. Wiley and Edgar B. Kinsworthy for petitioner. Mr. Tillman B. Parks for respondents. No. 379. International-Great Northern Railroad Company et al. v. T. A. Binford, Sheriff et al. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Sam Streetman and Samuel B. Dabney for petitioners. Messrs. Jewel P. Lightfoot, John W. Brady, and George L. Edwards for respondents. No. 380. International-Great Northern Railroad Company et al. v. George Edgeley et al. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Siam, Streetman and Samuel B. Dabney for petitioners. No appearance for respondents. No. 382. Frank C. Hart v. United States. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr.. Martin L. Pipes for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for the United States. 695 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 383. Town of Flagstaff v. William D. Walsh, as the Surviving Partner of the Copartnership of McLean and Walsh, etc., et al. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Walter Bennett and John L. Gust for petitioner. Mr. Henry G. Bodkin for respondent. No. 384. American Smelting & Refining Company v. George Campbell Carson. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Charles Earl, Frederick P. Fish, George Donworth, and John C. Higgins for petitioner. Messrs. John H. Miller and A. W. Boyken for respondent. No. 389. Sylvia Lake Company Inc., Dominion Company of New York et al. v. Northern Ore Company, New York Zinc Company, Inc., Henry W. Borst, et al. October 11, 1926. Petition for writ of certiorari to the Supreme Court of the State of New York denied. Messrs. Edwin L. Garvin and Alfred G. Reeves for petitioners. Mr. Henry Purcell for respondents. No. 390. St. Louis-San Francisco Railway Company v. Warren Landers. October 11, 1926. Petition for writ of certiorari to the Supreme Court of the State of Oklahoma denied. Messrs. C. B. Stuart, J. F. Sharpe, M. K. Croce, Ben Franklin, E. T. Miller, and Thomas P. Littlepage for petitioner. No appearance for respondent. No. 392. American Railway Express Company v. Clinton Harris. October 11, 1926. Petition for writ of certiorari to the Court of Appeals of the District of Co- 696 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. lumbia denied. Messrs. Benjamin 8. Minor, H. Prescott Gatley, Hugh B. Rowland, and Arthur P. Drury for petitioner. No appearance for respondent. No. 396. United States, Substituted forR. Bergman, Master of the Steamship “ Henry County," v. A Cargo of About 3,253 Tons of Coal Laden on Board the Steamship “Henry County,” etc. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Messrs. Chauncey G. Parker, Arthur M. Boal, and Harold F. Birnbaum for petitioner. Messrs. T. Catesby Jones and James W. Ryan for respondent. No. 397. United States, Substituted for Martin Miller, Master of the Steamship “ Franklin County,” v. A Cargo of About 3,248 Tons of Coal Laden on Board the Steamship “ Franklin County,” etc. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Messrs. Chauncey G. Parker, Arthur M. Boal, and Harold F. Birnbaum for petitioner. Messrs. T. Catesby Jones and James W. Ryan for respondent. No. 399. N. B. Josey Guano Company and N. B. Josey Company et al. v. E. I. du Pont de Nemours and Company. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. J. 8. Manning, John H. Manning, and P. W. McMullan for petitioners. No appearance for respondents. No. 400. United States ex rel. L. Margulies and Sons, Inc. v. J. Raymond McCarl, Comptroller General. October 11, 1926. Petition for writ of certiorari to the Court of Appeals of the District of Columbia denied. 697 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. Messrs. Raymond M. Hudson and Lewis K. Torbet for petitioner. Solicitor General Mitchell for respondent. No. 401. Gulf Refining Company of Louisiana v. A. H. Phillips, Tax Collector. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. S. L. Herold for petitioner. Mr. Robert A. Hunter for respondent. No. 402. Gulf Refining Company of Louisiana v. A. H. Phillips, Tax Collector. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. S. L. Herold for petitioner. Mr. Robert A. Hunter for respondent. No. 403. Gulf Refining Company of Louisiana v. M. H. Sandlin, Tax Assessor. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. S. L. Herold for petitioner. Mr. Robert A. Hunter for respondent. No. 404. J. W. McIntosh, Comptroller of the Currency, E. F. Anderson, Receiver, Georgia National Bank, et al. v. Miss Ruth M. Jackson and Mrs. Anna M. Scott. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. M. C. Elliott and Thos. F. Green for petitioners. No appearance for respondents. No. 405. Louis Horowitz and S. Abramson v. United States. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit 698 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. denied. Mr. Henry A. Behrendt for petitioners. Solicitor General Mitchell, Assistant Attorney General Wil-lebrandt, and Mr. Mahlon D. Kiefer for the United States. No. 407. Maurice R. Shaw, Owner of the Derrick Barge Holly, v. Western Assurance Company of Toronto, Canada. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. M-essrs. Curtis Tilton and Willard M. Harris for petitioner. Mr. Henry J. Bigham for respondent. No. 408. United States v. John B. Semple and Company, a Former Pennsylvania Corporation, by its Directors, John B. Semple et al. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Solicitor General Mitchell, Assistant Attorney General Willebrandt, Messrs. Sewall Key, A. W. Gregg, and John R. Wheeler for the United States. Mr. Charles H. Woods for respondents. No. 410. Chicago Steamship Lines, Inc., and Northern Trust Company v. United States Lloyds, Inc., Globe and Rutgers Fire Insurance Company, et al. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Charles E. Kremer for petitioners. Messrs. D. Roger Englar and Henry N. Longley for respondents. No. 411. Grace Henry and Mae Henry v. Olive Henry et al. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. M. G. Adams and C. W. Howth for petitioners, No appearance for respondents, 699 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273. U. S. No. 413. Harry Barusch v. G. W. Brainard, as Trustee of Charleé H. Durel et al., etc. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Edgar C. Chapman for petitioner. No appearance for respondents. No. 415. United Cigar Stores Company of America v. Edward R. Rayher, Trustee in Bankruptcy of Bertrand Barnett, Trading as Culver and Company. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Sol. M. Stroock for petitioner. Mr. Samuel Leavitt for respondent. No. 419. B. F. Trappey et al., Trading as B. F. Trap-pey and Sons v. McIlhenny Company. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. William L. Symons for petitioner. Messrs. Joseph S. Clark and Edward S. Rogers for respondent. No. 420. George Weinstein v. United States. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. William H. Lewis for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. Byron M. Coon for the United States. No. 423. American Chain Company, Inc. v. Chester N. Weaver, Inc. October 11, 1926. Petition-for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Frederick S. Dunqan and Gilbert H. Montague for petitioner. Mr. William K. White for respondent. 700 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 425. Franklin D’Olier, Burton Etherington, James D’Olier, et al., etc. v. United States. October 11, 1926. Petition for writ of certiorari to the Court of Claims denied. Messrs. J. Marvin Haynes, Thomas G. Haight, and Robert H. Montgomery for petitioners. Solicitor General Mitchell, Assistant Attorney General Galloway, Messrs. Fred K. Dyar, and John R. Wheeler for the United States. No. 426. Eugene Bergron, Myer Byne, et al. v. Ernest G. Hellsten, as Bailee of the Owner, Pere Marquette Lines Steamer, Claimant, of the American Vessel Nevada, etc. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. H. W. Hutton for petitioners. Messrs. Ambrose Gherini, Irving H. Frank, and Nathan H. Frank for respondent. No. 427. Julius Kessler and Company, Inc. v. United States. October 11, 1926. Petition for writ of certiorari to the Court of Claims denied. Messrs. William C. Breed and Edward A. Craighill, Jr., for petitioner. Solicitor General Mitchell and Assistant Attorney General Galloway for the United States. No. 428. James-Dickinson Farm Mortgage Company and A. D. Dickinson v. Cora Seimer. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. George F. Rearick for petitioners. No appearance for respondent. No. 430. Carl B. Anderson v. United States. October 11, 1926. Petition for writ of certiorari to the Circuit 701 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. Court of Appeals for the Seventh Circuit denied. Mr. Rufus S. Day for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for the United States. No. 431. Harry J. Bovard v. United States. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Luther Day for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for the United States. No. 432. William M. Jones v. United States. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Edward E. Gates for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for the United States. No. 433. Mord Carter v. United States. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Rufus S. Day for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for the United States. No. 434. Anthony A. Scheib v. United States. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. A. M. Frumberg for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for the United States. 702 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U.S. No. 435. Margaret Collins, Administratrix ad prosequendum of the Estate of Martin Collins, deceased, v. Erie Railroad Company. October 11, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Susan Brandeis and Mr. Nathan Probst, Jr., for petitioner. Mr. Clement K. Corbin for respondent. No. 25. Delia Salzer v. United States, Treasury Department, Bureau of War Risk Insurance. See post, p. 771. _________ No. 381. International-Great Northern Railroad Company et al. v. Texas Company. See post, p. 771. No. 483. International-Great Northern Railroad Company et al. v. Texas Company. See post, p. 771. No. 470. United States v. Curtis and Company Manufacturing Company. See post, p. 771. No. 622. Alexander Ackerson v. United States. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit. October 18, 1926. Application to proceed further in forma pauperis is denied for the reason that the court upon consideration of the unprinted record finds no ground for certiorari, the application for which is also denied. Mr. Alexander Ackerson, pro se. No appearance for respondent. No. 393. Rush Meadows v. United States. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Hugh L. Dickson for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for the United States. OCTOBER TERM, 1926. 703 273 U. S. Decisions Denying Certiorari. No. 438. Mrs. Gertrude S. Ponder v. Lamar Life Insurance Company. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. H. B. Warren, Joseph D. Barksdale, and Albert H. Van Hook for petitioner. No appearance for respondent. No. 440. Lehigh Valley Railroad Company v. Steam Tug Cutchoque, Her Engines, etc., Long Island Railroad Company, Claimant. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. T. Catesby Jones for petitioner. Messrs. Chauncey I. Clark and TEiWiam J. Dean for respondents. No. 441. Irvin McD. Garfield, as Receiver of B. B. & R. Knight, Inc. v. Mallory Steamship Company. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. John Hunter for petitioner. Mr. Ray Rood Allen for respondent. No. 442. J. A. Kemp, T. B. Noble, I. H. Roberts, et al. v. United States. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Harry C. Weeks for petitioners. Solicitor General Mitchell, Assistant Attorney General Willebrandt, Messrs. Sewall Key, and A. W. Gregg for the United States. No. 445. Max Hart v. B. F. Keith Vaudeville Exchange, Orpheum Circuit, Inc., Excelsior Collection Agency et al. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second 704 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. Circuit denied. Messrs. Martin W. Littleton, Louis B. Eppstein, Ira W. Hirshfield, and Lawrence H. Axman for petitioner. Messrs. Charles E. Hughes and Maurice Goodman for respondents. No. 446. Max Hart v. B. F. Keith Vaudeville Exchange, Orpheum Circuit, Inc., Excelsior Collection Agency et al. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Martin W. Littleton, Louis B. Eppstein, Ira W. Hirshfield, and Lawrence H. Axman for petitioner. Messrs. Charles E. Hughes and Maurice Goodman for respondents. No. 449. S. D. Guggenheim, M. Guggenheim, L. Guggenheim, et al., etc. v. United States. October 18, 1926. Petition for a writ of certiorari to the Court of Claims denied. Mr. Frank Davis, Jr., for petitioners. Solicitor General Mitchell, Assistant Attorney General Galloway, and Mr. George H. Foster for the United States. No. 455. Alexander Menaregidis, in behalf of Andreas Menaregidis, v. Henry H. Curran, Commissioner of Immigration. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Harold Van Riper for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for respondent. No. 456. Sotiouros Christoulas, also known as Christ Lawyer, v. Henry H. Curran, Commissioner of Immigration. October 18. 1926. Petition for a writ 705 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Harold Van Riper for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for respondent. No. 457. George F. Pawling and Company v. United States. October 18, 1926. Petition for a writ of. certiorari to the Court of Claims denied. Messrs. James Craig Peacock and John W. Townsend for petitioner. Solicitor General Mitchell, Assistant Attorney General Galloway, and Mr. P. M. Cox for the United States; No. 458. Roy Gay v. United States. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Bart. A. Riley for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. Byron M. Coon for the United States. No. 459. Russell Gay v. United States. October 18, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Bart. A. Riley for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. Byron M. Coon for the United States. No. 460. Harry Washer, alias Harry The Jew, v. United States. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Bart. A. Riley for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for the United States. 42847°—27---45 706 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 461. H. M. Albury v. United States. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Bart A. Riley for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. K. L. Campbell for the United States. No. 462. James Thompson and The J. L. Hudson Company, doing Business, etc., et al. v. Vogue Company. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Samuel W. Banning and Thomas A. Banning for petitioners. Messrs. Harry D. Nims and Minturn DeS. Verdi for respondent. No. 463. George Belvin and John McGowan v. United States. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Henry Bowden for petitioners. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. Mahlon D. Kiefer for the United States. ' * ** No. 464. United States ex rel. Cripple Creek & Colorado Springs Railroad Company v. Interstate Commerce Commision. October 18, 1926. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia denied. Messrs. M. C. Elliott and C. C. Hamlin for petitioner. Messrs. R. Granville Curry and P. J. Farrell for respondent. No. 466. Jacob P. Teter v. United States. October 18, 1926. Petition for a writ of certiorari to the Circuit 707 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. Court of Appeals for the Seventh Circuit denied. Mr. L. Ert. Slack for petitioner. Solicitor General Mitchell and Mr. Alfred A. Wheat for the United States. No. 468. Oregon and California Railroad Company v. Andrew B. Hammond and Charles J. Winton. October 18, 1926. Petition for a writ of certiorari to the Supreme Court of the State of Oregon denied. Messrs. Ben C. Dey and Alfred A. Hampson for petitioner. Messrs. Charles H. Carey and James B. Kerr for respondents. No. 469. Oregon and California Railroad Company v. Booth-Kelly Lumber Company. October 18, 1926. Petition for a writ of certiorari to the Supreme Court of the State of Oregon denied. Messrs. Ben C. Dey and Alfred A. Hampson for petitioner. Messrs. Mark Norris and Glenn E. Husted for respondent. No. 471. W. J. McInnes, Receiver of the Citizens National Bank, of Roswell, N. M. v. American Surety Company. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Renzo D. Bowers for petitioner. No appearance for respondent. No. 473. Andrew W. Mellon, Director General of Railroads v. W. M. Grantham. October. 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Alexander H. McKnight, A. A. McLaughlin, Joseph M. Bryson, and Charles C. Huff for petitioner. No appearance for respondent. 708 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 474. Howard P. Converse and Edwin P. Bliss, Trading as Converse and Company v. United States. October 18, 1926. Petition for a writ of certiorari to the Court of Claims denied. Mr. George R. Shields for petitioners Solicitor General Mitchell and Assistant Attorney General Galloway for the United States. No. 475. Eric Lange and A. H. Bergstrom, Copartners, Trading as Lange and Bergstrom v. United States. October 18, 1926. Petition for a writ of certiorari to the Court of Claims denied. Mr. Bynum E. Hinton for petitioners. Solicitor General Mitchell and Assistant Attorney General Galloway for the United States. No. 476. Mary D. A. Sayles, Charles 0. Read, and James R. MacCall, individually, etc. v. Chase National Bank and Frederick K. Rupprecht. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Messrs. Samuel Williston, Robert B. Dresser, and Claude R. Branch for petitioners. Messrs. Eldon Bisbee, Charles F. Choate, Jr., and Arthur M. Allen for respondents. No. 477. Joshua Russell v. United States. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Joseph C. Breitenstein, William L. Day, and Luther Day for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. Mahlon D. .Kief er for the United States. No. 478. Merle B. Copeland v. United States. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. 709 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. Messrs. William L. Day, Luther Day, and Joseph C. Breitenstein for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. Mahlon D. Kiefer for the United States. No. 479. Warren E. Barnett v. United States. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Joseph C. Breitenstein, William L. Day, and Luther Day for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. Mahlon D. Kiefer for the United States. No. 480. Oregon Short Line Railroad Company v. Ernest R. Gubler. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Robert B. Porter, George H. Smith, William R. Harr, and Charles H. Bates for petitioner. Mr. E. R. Callister for respondent. No. 481. Earl B. Barnes, as Trustee in Bankruptcy of Thomas H. Cowley, Paul E. Brady et al., etc. v. William Schatzkin et al., etc., and Lawrence J. Hirsch et al., etc. October 18, 1926. Petition for a writ of certiorari to the Supreme Court of the State of New York denied. Messrs. Saul S. Myers, William J. Hughes, and Edwin L. Garvin for petitioners. Messrs. Harold Nathan and B. B. Pettus for respondents. No. 484. Milton F.- Webster v. Joseph T. Terry. October 18, 1926. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia denied. Mr. Archibald Cox for petitioner. Mr. Melville Church for respondent. 710 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U.S. No. 485. Illinois Central Railroad Company v. United States. October 18, 1926. Petition for a writ of certiorari to the Court of Claims denied. Messrs. Lawrence H. Cake and F. W. Clements for petitioner. Solicitor General Mitchell, Assistant Attorney General Galloway, and Mr. Louis R. Mehlenger for the United States. No. 486. Jacinto Moss, Pedro L. Moss, Pedro J. Moss, ET AL., ETC. V. JOHN H. SHERBURNE AND HOWARD Stockton, Trustees, etc. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. Robert H. Holt for petitioners. Messrs. John H. Sherburne and Howard Stock-ton, Jr., pro se. No. 487. Village of Terrace Park v. Russell Errett. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. John Weld Peck for petitioner. Messrs. Russell Errett, pro se, and James J. Muir for respondent. No. 489. Albert Carelli v. State of Ohio. October 18, 1926. Petition for a writ of certiorari to the Supreme Court of the State of Ohio denied. Mr. M. A. Musmanno for petitioner. No appearance for respondent. No. 490. Lena B. McKee and Fred McKee, Trustees, ETC., ET AL. V. CUNO H. RUDOLPH, JAMES F. OYSTER, AND J. Franklin Bell, etc. October 18, 1926. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia denied. Mr. Edward F. Colladay for petitioners. Messrs. F. H. Stephens and Robert L. Williams for respondents. 711 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 491. Universal Rim Company v. Firestone Tire and Rubber Company et al. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Rudolph W. Lotz and Arthur W. Nelson for petitioner. Messrs. A. L. Ely and F. 0. Richey for respondents. No. 493. Standard Electric Stove Company v. Toledo, St. Louis and Western Railroad. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Oliver B. Snider for petitioner. Mr. E. E. McInnis for respondent. No. 496. St. Louis-San Francisco Railway Company v. Eunice Pearson, Administratrix of the Estate of J. L. Pearson, deceased. October 18, 1926. Petition for a writ of certiorari to the Supreme Court of the State of Arkansas denied. Messrs. Edward T. Miller and Edward L. Westbrooke for petitioner. No appearance for respondent. No. 498. United States ex rel. Helen L. Givens v. Hubert Work, Secretary of the Interior. October 18, 1926. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia denied. Messrs. J. Harry Covington, Spencer Gordon, and Newell W. Ellison for petitioner. Solicitor General Mitchell and Mr. George P. Barse for respondent. No. 501. New York Life Insurance Company v. United States. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. James H. McIntosh for peti- 712 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. tioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Messrs. Howard T. Jones, A. W. Gregg, and Edward H. Horton for the United States. No. 502. New York Life Insurance Company v. United States. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. James H. McIntosh for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Messrs. Howard T. Jones, A. W. Gregg, and Edward H. Horton for the United States. No. 505. Atlantic Coast Line Railroad Company v. Standard Oil Company of New Jersey. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. Thomas W. Davis, F. W. Gwathmey, James F. Wright, and Murray Allen for petitioner. Messrs. Charles Mell. Howard and George H. Tower for respondent. No. 506. Seaboard Air Line Railway Company v. Standard Oil Company of New Jersey. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. Murray Allen, F. W. Gwathmey, Thomas W. Davis, and James F. Wright for petitioner. Messrs. Charles McH. Howard and George H. Tower for respondent. No. 508. State Bank v. Philip Applebaum. October 18, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Archibald Palmer and Max L. Rosenstein for petitioner. No appearance for respondent. 713 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 510. Submarine Signal Company v. United States. October 18, 1926. Petition for a writ of certiorari to the Court of Claims denied. Messrs. Philw B. Buzzell, Andrew B. Duvall, and Elmer T. Bell for the petitioner. Solicitor General Mitchell and Assistant Attorney General Galloway for the United States. No. 643. William C. Amos v. United States. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit. October 25, 1926. The motion for leave to print only such portions of the record in this case as opposing counsel shall agree is relevant to petitioner’s conviction below or in the alternative to proceed further in forma pauperis is denied for the reason that upon examination of the petition and accompanying papers, including brief of counsel for the petitioner, the record as printed in the Circuit Court of Appeals, and the opinion of the court below, the court finds that the case is not one in which a writ of certiorari should issue, the application for which is, therefore, also denied. Mr. Walter S. Hilbom for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for the United States. No. 513. Security Trust Company, Receiver, v. Charles J. De Land, Receiver. October 25, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Thomas G. Long for petitioner. Mr. Carl W. Mosier for respondent. No. 514. The Detroit United Railway v. Alfred Leroy Craven. October 25, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Frederick T. Harward for petitioner. No appearance for respondent. 714 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 516. Ralph A. Horton v. Cary A. Hardee, Governor, et al. October 25, 1926. Petition for a writ of certiorari to the Supreme Court of the State of Florida denied. Messrs. Scott M. Loftin, James E. Calkins, and Jno. P. Stokes for petitioner. Messrs. Francis P. Fleming and Marvin C. McIntosh for respondents. No. 517. Joseph Laveirge et al. v. James C. Davis, Agent. October 25,1926. Petition for a writ of certiorari to the Supreme Court of the State of Minnesota denied. Messrs. Webster Ballinger and John B. Arnold for petitioners. Solicitor General Mitchell, Assistant Attorney General Parmenter, and Mr. Pedro Capo-Rodriguez for respondent. No. 518. J. W. Craig v. St. Louis-San Francisco Railway Company. October 25, 1926. Petition for a writ of certiorari to the Supreme Court of the State of Kansas denied. Mr. T. A. Noftzger for petitioner. No appearance for respondent. No. 519. Steel and Tube Company of America v. Dingess Rum Coal Company. October 25, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. Arthur W. Fairchild, J. Gilbert Hardgrove, and Harold A. Ritz for petitioner. Mr. Douglas W. Brown for respondent. No. 520. Auburn and Alton Coal Company v. United States. October 25,1926. Petition for a writ of certiorari to the Court of Claims denied. Messrs. Robert N. Miller and Haines H. Hargrett for petitioner. Solicitor General Mitchell and Assistant Attorney General Galloway for the United States. 715 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 523. Hilda Roberts et al. v. Chris Yegen et al. October 25, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. H. Lowndes Maury for petitioners. Mr. George Hurd for respondents. No. 530. Ross Banta v. United States. October 25, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Thomas A. Flynn and Joseph E. Morrison for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. Mahlon D. Kiefer for the United States. No. 532. Mechanics and Metals National Bank v. J. C. Buchanan. October 25, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Frank M. Patterson and D. H. Linebaugh for petitioner. Mr. M. W. McKenzie for respondent. No. 534. Ethel Croker White et al. v. Bula Croker, etc., et al. October 25, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. George C. Bedell and J. T. G. Crawford for petitioners. Messrs. Francis P. Fleming and Samuel T. Ansell for respondents. No. 535. W. R. Grace and Company v. Panama Railroad Company. October 25, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Gear R. Houston and Ezra G. Benedict Fox for petitioner. Mr. Richard Reid Rogers for respondent. 716 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 536. Charles Waxman v. United States. October 25, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Charles Waxman, pro se. Solicitor General Mitchell, As-sistant Attorney General Willebrandt, and Mr. Mahlon D. Kiejer for the United States. No. 538. Aetna Life Insurance Company v. Her-mina Bundscho. October 25, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Charles Y. Freeman for petitioner. Messrs. George I. Haight, Edmund D. Adcock, and T. W. Bramhall for respondent. No. 541. Frank McGarry et al. v. John J. Lentz et al. October 25, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Smith W. Bennett and Arthur I. Vorys for petitioners. Messrs. J. D. Karns and Henry A. Williams for respondents. No. 543. Scott M. Atkin v. Nathan H. Baier et al. October 25, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. William M. Toomer and George P. Garrett for petitioner. Mr. Halsted L. Ritter for respondents. No. 544. United States v. May McKinney et al., Executors, etc. October 25, 1926. Petition for a writ of certiorari to the Court of Claims denied. Solicitor General Mitchell, Assistant Attorney General Galloway, and Mr. Alexander H. McCormick for the United States. Messrs. Harry H. Simmes and W. Clyde Jones for respondents. 717 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 550. Philippine Sugar Estates Development Company, Limited, Inc. v. Gabriela Andrea de Coster. October 25, 1926. Petition for a writ of certiorari to the Supreme Court of the Philippine Islands denied. Messrs. F. G. Fisher and C. A. DeWitt for petitioner. Messrs. Chester I. Long, George E. Chamberlain, Peter Q. Nyce, and Antonio M. Oppisso for respondent. No. 551. James E. Arnold v. Ross A. Collins. October 25, 1926. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia denied. Mr. William E. Richardson for petitioner. Mr. John S. Barbour for respondent. No. 554. City of Toledo et al. v. Maumee Valley Electric Company. October 25, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Charles A. Beiders for petitioners. Messrs. U. G. Denman and Karl E. Burr for respondent. No. 555. W. R. Grace and Company v. Toyo Kisen Kabushiki Kaisha. October 25, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. William H. Orrick for petitioner. Mr. Thomas B. Dozier for respondent. No. 451. Procter and Gamble Company et al. v. Federal Trade Commission. October 25, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Frank F. Dinsmore for petitioners. Solicitor General Mitchell and Mr. Bayard T. Hainer for respondent. 718 OCTOBER TERM, 1926. 273 U. S. Decisions Denying Certiorari. No. 494. Federal Trade Commission v. Procter and Gamble Company et al. October 25, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Solicitor General Mitchell and Mr. Bayard T. Hainer for petitioner. Mr. Frank F. Dinsmore for respondents. No. 703. William M. Webb v. United States. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit. November 1, 1926. The motion for leave to proceed further in this cause in forma pauperis is denied for the reason that the court upon inspection of the record of proceedings below as submitted in Anderson v. United States, No. 430; Bovard v. United States, No. 431; Jones v. United States, No. 432; and Carter v. United States, No. 433, finds that there is no ground for certiorari, application for which is also denied. The costs already incurred herein by direction of the court shall be paid by the clerk from the special fund in his custody as provided in order of October 29, 1926. Mr. Oscar O’Neill Touchston for petitioner. No appearance for respondent. No. 450. William Lee Popham v. United States. November 1, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Robert H. McNeill, Julius C. Martin, Herbert W. Waguespack, and W. J. Waguespack for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for the United States. No. 558. Virginian Railway Company v. United States, Owner of Steam Tug Barrenjork. November 1, 1926. Petition for a writ of certiorari to the Circuit 719 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U.S. Court of Appeals for the Fourth Circuit denied. Messrs. W. H. T. Loyall, George M. Lanning, E. W. Knight, and Edward R. Baird, Jr., for petitioner. Solicitor General Mitchell, Assistant Attorney General Letts, and Mr. J. Frank Staley for the United States. No. 559. L. J. Riggs v. Siegel Workman, United States Marshal. November 1, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. A. M. Belcher for petitioner. Solicitor General Mitchell, Assistant Attorney General Wille-brandt, and Mr. Mahlon D. Kiefer for respondent. No. 560. L. J. (Bear Cat) Riggs v. United States November 1, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. A. M. Belcher for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. Mahlon D. Kiefer for the United States. No. 562. New York and Cuba Mail Steamship Company v. United States and Flannery, Guinan and Moran, Inc. November 1, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Chauncey I. Clark and Eugene Underwood for petitioner. Solicitor General Mitchell, Assistant Attorney General Letts, and Mr. J. Frank Staley for respondents. No. 563. New York and Cuba Mail Steamship Company v. United States and Flannery, Guinan and Moran, Inc. November 1, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Chauncey I. Clark and Eugene 720 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. Underwood, for petitioner. Solicitor General Mitchell, Assistant Attorney General Letts, and Mr. J. Frank Staley for respondents. No. 565. M. Samuel and Sons, Inc. v. Second National Bank of Toledo. November 1, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Morris D. Kopple for petitioner. Mr. Robert C. Morris for respondent. No. 566. New State Land Company, H. F. Wilcox Oil and Gas Company, Albert Kelly, et al. v. Robert Kelley and Sukey Kelley. November 1, 1926. Petition for a writ of certiorari to the Supreme Court of the State of Oklahoma denied. Mr. John W. Davis for petitioners. Messrs. William Neff, R. C. Allen, and I. J. Underwood for respondents. No. 569. Louis Rauch v. A. F. Duff. November 1, 1926. Petition for a writ of certiorari to the Supreme Court of the State of Mississippi denied. Mr. Gordon G. Lyell for petitioner. No appearance for respondent. No. 571. Texas and New Orleans Railroad Company and United States Fidelity and Guaranty Company v. J. J. Cammack. November 1, 1926. Petition for a writ of certiorari to the Court of Civil Appeals, Sixth Supreme Judicial District of the State of Texas, denied. Messrs. J. H. Tallichet and H. M. Garwood for petitioners. Mr. Alexander White Spence for respondent. No. 572. Calcasieu National Bank of Southwest Louisiana v. Alfred Campbell. November 1, 1926. 721 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Charles A. McCoy for petitioner. No appearance for respondent. No. 573. William G. Benham and Dwight Harrison v. United States. November 1,1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Robert R. Nevin and Smith W. Bennett for petitioners. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for the United States. No. 576. William F. Williams and Frank E. Lyman, Commissioners of Public Works, etc. v. General Outdoor Advertising Company, Inc., 0. J. Gude Company, Thomas Cusack Company et al. November 1, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. Jay R. Benton for petitioners. Messrs. Lowell A. Mayberry and Robert Gallagher for respondents. No. 578. Henderson County, Tennessee, v. Sovereign Camp, Woodmen of the World. November 1, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. J. A. Fowler for petitioner. Mr. Charles Claflin Allen, Jr., for respondent. No. 584. George Langstaff v. Robert H. Lucas, Collector of Internal Revenue. November 1, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Charles K. Wheeler for petitioner. Solicitor General Mitchell, As-42847°—27-------46 722 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. sistant Attorney General Willebrandt, and Messrs. Sewall Key, and A. W. Gregg for respondent. No. 585. A. I. Winsett, Nathan Kendall, Charles E. Walker et al. v. H. J. Spurway, Receiver of The Tucson National Bank. November 1. 1926. Petition for a writ of certiorari to the Supreme Court of the State of Arizona denied. Mr. Frank E. Curley for petitioners. Mr. Francis M. Hartman for respondent. No. 586. M. Wehby, John Joseph, Raf R. Flores et al. v. H. J. Spurway, Receiver of The Tucson National Bank. November 1. 1926. Petition for a writ of certiorari to the Supreme Court of the State of Arizona denied. Mr. Frank E. Curley for petitioners. Mr. Francis M. Hartman for respondent. No. 587. State of Montana v. Sunburst Refining Company. November 1, 1926. Petition for a writ of certiorari to the Supreme Court of the State of Montana denied. Mr. L. A. Foot for petitioner. Mr. George E. Hurd for respondent. No. 588. Federal Life Insurance Company v. Mrs. Jennie M. Rascoe. November 1, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Thomas J. Tyne and James C. Jones for petitioner. Messrs. W, H. Washington and Edwin A. Price for respondent. No. 590. Gordon Campbell v. United States. November 1, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. 723 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. Messrs. Eugene C. Campbell and James E. Fenton for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. John S. Pratt for the United States. No. 593. Ford Hydro-Electric Company v. Janet Neeley et al. November 1, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. William Ryan for petitioner. Mr. William P. Belden for respondents. No. 594. George S. Kunihiro v. M. 0. Coggins Company, Clifford A. Coggins, C. Swift Bollens, et al. November 1, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. George E. Waldo for petitioner. Mr. W. I. Gilbert for respondents. No. 595. George S. Kunihiro v. Lyon Brothers Company, Arthur Miller, M. 0. Coggins Company et al. November 1, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. George E. Waldo for petitioner. Mr. W. I. Gilbert for respondents. No. 597. Sioux City Bridge Company v. Walter E. Miller, County Treasurer, et al. November 1, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Wymer Dressier and Richard L. Kennedy for petitioner. Mr. John J. McCarthy for respondents. No. 598. Celluloid Company v. Commonwealth of Massachusetts. November 1, 1926. Petition for a writ of certiorari to the Supreme Judicial Court of the State 724 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. of Massachusetts denied. Mr. Joseph Larocque for petitioner. Messrs. Jay R. Benton, Attorney General of Massachusetts, and Alexander Lincoln for respondent. No. 599. Aaron T. Bliss, Clerk of Midland County, et al. v. James C. Graves and Clifford G. Olmstead. November 1, 1926. Petition for a writ of certiorari to the Supreme Court of the State of Michigan denied. Mr. Gilbert A. Curry for petitioners. Mr. Frank A. Rock-with for respondents. No. 600. Central National Bank of Marietta, Ohio, as Administrator de bonis non of the Estate of Harry B. Hulings, Deceased, v. Commodore D. Dodson. November 1, 1926. Petition for a writ of certiorari to the Supreme Court of the State of Ohio denied. Messrs. Lowrie C. Barton and Edward B. Follett for petitioner. No appearance for respondent. No. 602. Warren 0. Watson, Trustee in Bankruptcy et al. v. J. Hall LeBlanc, Bankrupt. November 1,1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Joseph A. Loret for petitioners. No appearance for respondent. No. 391. United States ex rel. Julio E. Roman Checa v. George E. Williams, Sheriff. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. W. J. Wagues-pack for petitioner. No appearance for respondent. No. 548. William A. Zeidler v. United States. November 23, 1926. Petition for a writ of certiorari 725 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. to the Court of Claims denied. Messrs. Joseph W. Cox, Archibald Cox, and 0. Ellery Edwards for petitioner. Solicitor General Mitchell, Assistant Attorney General Galloway, and Messrs. Harry E. Knight, and Manuel Whittemore for the United States. No. 589. Missouri-Kansas-Texas Railroad Company of Texas v. United States. November 23, 1926. Petition for a writ of certiorari to the Court of Claims denied. Messrs. F. W. Clements and Lawrence H. Cake for petitioner. Solicitor General Mitchell, Assistant Attorney General Galloway, and Messrs. Gardiner P. Lloyd, and Louis R. Mehlinger for the United States. No. 603. Sinclair Refining Company et al. v. Alonzo Smith and N. W. Washburn. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Walter H. Walne, Maco Stewart, and Albert J. DeLange for petitioners. Mr. George A. Hill, Jr., for respondents. No. 610. Galveston Dry Dock and Construction Company v. United States. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Maco Stewart, Jr., for petitioner. Solicitor General Mitchell, Assistant Attorney General Letts, and Mr. J. Frank Staley for the United States. No. 611. John E. Wagner v. Netherlands American Steam Navigation Company. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. George S. Graham for petitioner. Messrs Roscoe H. Hupper and Everett Masten for respondent. 726 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 612. United States Fidelity and Guaranty Company v. United States. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Stanleigh P. Friedman for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. Mahlon D. Kiefer for the United States. No. 613. Luther Walker v. United States. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. W. T. Kennerly for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. Mahlon D. Kiefer for the United States. No. 614. Piedmont Coal Company et al. v. James Edgar Hustead et al. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Ohio County of the State of West Virginia denied. Messrs. David A. Reed, Samuel McClay, George Poffenbarger, and Frank W. Nesbitt for petitioners. Messrs. Charles McCamic and James Morgan Clarke for respondents. No. 621. Andrew W. Mellon, Director General of Railroads, etc. v. New York and New Jersey Transportation Company and John Mosk. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. James W. Ryan, Evan Shelby, and T. Catesby Jones for petitioner. Messrs. Pierre M. Brown and Horace L. Cheyney for respondents. No. 623. Charles H. Graves v. Frank W. Brunskill, Chief of Police et al. November 23, 1926. Petition 727 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. for a writ of certiorari to the Supreme Court of the State of Minnesota denied. Mr. John E. Palmer for petitioner. Messrs. Clifford L. Hilton and James E. Markham for respondents. No. 624. Kansas Flour Mills Company v. Farmers National Bank of Burlington, Kansas, et al. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. T. A. Noftzger for petitioner. No appearance for respondents. No. 625. Larabee Flour Mills Corporation v. First National Bank of Henryetta, Oklahoma, et al. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. T. A. Noftzger for petitioner. Mr. R. B. F. Hummer for respondent. No. 628. Colonial Transportation Company, Ltd. v. United States. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Howard H. Long for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. Arthur W. Henderson for the United States. No. 629. John Moore, Administrator of the Estate of Earl H. Moore, Deceased, v. Baltimore and Ohio Railroad Company. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Daniel 0. Hastings for petitioner. No appearance for respondent. No. 631. Saturnino Lopez v. Manuel Ernesto Gonzalez. November 23, 1926. Pétition for a writ of cer- 728 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. tiorari to the Supreme Court of the Philippine Islands denied. Mr. Samuel T. Ansell for petitioner. No appearance for respondent. No. 632. Paul M. Ashbaugh v. United States. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. J. W. Barry and Paul M. Ashbaugh pro se, for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring and Mr. Harry S. Ridgely for the United States. No. 636. Paradon Engineering Company, Inc., v. Electro Bleaching Company et al. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. F. P. Warfield and C. A. L. Massie for petitioner. Messrs. Drury W, Cooper and Loren N. Wood for respondents. No. 640. Addison Miller, Security Storage Company, Ryan Hotel Company, et al., v. City of St. Paul. November 23, 1926. Petition for a writ of certiorari to the Supreme Court of the State of Minnesota denied. Mr. W. B. Douglas for petitioners. Messrs. Morton Barrows, Arthur A. Stewart, and Eugene M. O’Neill for respondent. No. 641. George H. Jennings and Creekmore Wallace v. Lonzetra Canady and Mountain State Oil Company. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. B. B. Blakeney and Creekmore Wallace for petitioners. No appearance for respondent. 729 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 645. Atchison, Topeka and Santa Fe Railway Company v. Gertrude Mappin, Administratrix of the Estate of Walter W. Mappin, Deceased. November 23, 1926. Petition for a writ of certiorari to the Supreme Court of the State of California denied. Messrs. Edgar W. Camp, Robert 0. Brennan, and E. E. McInnes for petitioner. Mr. Maxwell McNutt for respondent. No. 649. Caron Corporation v. Henri Muraour et Cie. November 23,1926. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia denied. Messrs. Maurice Leon and Joseph H. Choate, Jr., for petitioner. Mr. George W. Offutt for respondent. No. 650. Knickerbocker Merchandising Company, Inc., et al. v. United States. November 23,1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. John Holley Clark, Jr., for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for the United States. No. 651. T. E. McLendon v. United States. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Charles M. Bryan and J. M. Grimmet for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for the United States. No. 653. Seaboard Air Line Railway Company v. State of Florida ex rel. R. Hudson Burr, A. S. Wells, et al., etc. November 23, 1926. Petition for a writ of certiorari to the Supreme Court of the State of Florida 730 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U.S. denied. Messrs. James F. Wright, W. E. Kay, Thomas B. Adams, and Frank W. Gwathmey for petitioner. Messrs. Fred H. Davis and George C. Bedell for respondents. See ante, p. 691. No. 654. Atlantic Coast Line Railroad Company v. State of Florida ex rel. R. Hudson Burr, A. S. Wells, et al., etc. November 23, 1926. Petition for a writ of certiorari to the Supreme Court of the State of Florida denied. Messrs. James F. Wright, W. E. Kay, Thomas B. Adams, and Frank W. Gwathmey for petitioner. Messrs. Fred H. Davis and George C. Bedell for respondents. See ante, p. 691. No. 659. National Bank of Commerce in St. Louts v. Henry Clay Pierce. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. George L. Edwards, Edward J. White, and W. T. Jones for petitioner. Messrs. H. S. Priest and John F. Green for respondent. No. 660. William A. Gillespie and Frank X. Kinzly v. United States. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Martin Conboy for petitioners. Solicitor General Mitchell and Mr. J. Kennedy White for the United States. No. 667. Steam Tug Esther M. Rendle, George T. Rendle v. United States. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. George T. Dillaway for petitioners. Solicitor General Mitchell and Assistant Attorney General Willebrandt for the United States. 731 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 677. Emlenton Refining Company v. Walter A. Chambers, Trading as G. L. P. Chambers and Company, to the use of James A. Adams, etc. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Messrs. J. E. Mullin and W. Pitt Gifford for petitioner. Mr. Henry J. Bigham for respondents. No. 681. Marshall Hodgman, George I. Seidman, Percy Heineman, et al. v. Atlantic Refining Company and Superior Oil Corporation. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Messrs. John W. Davis and Andrew C. Gray for petitioners. Messrs. Ira Jewell Williams, Robert H. Richards, and Charles E. Hughes for respondents. No. 683. Carnegie Steel Company v. Colorado Fuel and Iron Company. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. D. Anthony Usina, Henry M. Huxley, and George W. Morgan for petitioner. Mr. Fred Farrar for respondent. No. 687. Wesley L. Sischo v. Finch R. Archer, Warden. November 23, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Marshall B. Woodworth for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Messrs. Alfred A. Wheat, and Harry S. Ridgely for respondent. m OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. 8. No. 616. Standard Transportation Company v. United States. November 29, 1926. Petition for a writ of certiorari to the Court of Claims denied. Messrs. Gold-thwaite H. Dorr, Peter M. Speer, and Russell H. Robbins for petitioner. Solicitor General Mitchell, Assistant Attorney Galloway, and Mr. J. Frank Staley for the United States. No. 633. Charles M. Cotterman v. United States. November 29, 1926. Petition for a writ of certiorari to the Court of Claims denied. Messrs. William F. Norman, Daniel R. Williams, Walter E. Barton, and J. J. Lynch for petitioner. Solicitor General Mitchell and Assistant Attorney General Galloway for the United States. No. 635. H. A. Pharr, Trustee in Bankruptcy of Mobile Shipbuilding Company v. United States. November 29, 1926. Petition for a writ of certiorari to the Court of Claims denied. Mr. Monte Appel for petitioner. Solicitor General Mitchell and Assistant Attorney General Galloway for the United States. No. 663. James A. Baker, Receiver of the International and Great Northern Railway Company, v. United States. November 29, 1926. Petition for a writ of certiorari to the Court of Claims denied. Mr. F. Carter Pope for petitioner. Solicitor General Mitchell and Assistant Attorney General Galloway for the United States. No. 672. W. J. Tubbs v. State of Washington. November 29, 1926. Petition for a writ of certiorari to the Supreme Court of the State of Washington denied. Messrs. Fred B. Morrill and F. H. McDermont for petitioner. No appearance for respondent. OCTOBER TERM, 1926. 733 273 U. S. Decisions Denying Certiorari. No. 678. Rodolfo A. Fajardo v. Philippine Islands. November 29, 1926. Petition for a writ of certiorari to the Supreme Court of the Philippine Islands denied. Mr. Gabriel La 0 for petitioner. Mr. William C. Rigby for respondent. No. 680. Guy H. Shown, Trustee in Bankruptcy in the Matter of R. R. Baker, Bankrupt, v. Robert R. Baker, Bankrupt. November 29, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Robert Burrow for petitioner. Mr. H. H. Shelton for respondent. No. 682. George A. Moore and Company v. Edgar Mathieu. November 29, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Samuel Knight for petitioner. Mr. Charles D. Hamel for respondent. No. 684. United States v. Belridge Oil Company. November 29, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Solicitor General Mitchell and Assistant Attorney General Parmenter for the United States. Mr. Oscar Lawler for respondent. No. 688. Joe Miller et al., Individually and as Executors of the Estate of L. Miller, Deceased, v. George W. Brown and J. 0. Sims, Receivers of Miller-Link Lumber Company. November 29, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. H. W. Kaiser for petitioners. Mr. H. M. Garwood for respondents. 734 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U.S. No. 689. Ranghild Johnson v. Whitney Company. November 29, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Arthur I. Moulton for petitioner. No appearance for respondent. No. 690. Chicago, Rock Island and Pacific Railway Company v. Howe-McCurtain Coal and Coke Company. November 29, 1926. Petition for a writ of certiorari to the Supreme Court of the State of Oklahoma denied. Mr. W. R. Bleakmore for petitioner. Mr. James H. Gordon for respondent. No. 692. United Verde Copper Company v. W. A. Jordan, W. E. Jordan, C. A. Jordan, et al., etc. November 29, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Edward W. Rice and Clifton Mathews for petitioner. Mr. William R. Harr for respondents. No. 693. United Verde Extension Mining Company v. W. A. Jordan, W. E. Jordan, C. A. Jordan, et al., etc. November 29, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. E. E. Ellinwood, Howard Cornick, and John M. Ross for petitioner. Mr. William R. Harr for respondents. No. 694. Edwin H. Armstrong and Westinghouse Electric & Manufacturing Company v. Lee De Forest, De Forest Radio Telephone & Telegraph Company et al. November 29, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. John C. Kerr and Drury W. Cooper for petitioners. No appearance for respondents. 735 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 696. United States v. Arkell and Douglas, Inc., et. al., and Thomas G. Plant Company. November 29, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Solicitor General Mitchell, Assistant Attorney General Letts, and Mr. J. Frank Staley for the United States. Mr. D. Roger Englar for respondents. No. 698. Albert Ross v. United States; No. 699. Peter C. Jezewski v. United States; No. 700. Max Wosinski v. United States; No. 706. Sam Laskolin v. United States. November 29, 1926. Petitions for writs of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Earl J. Davis for petitioner in No. 698. Mr. Thomas W. Payne for petitioners in Nos. 699 and 700. Mr. Ira J. Pettiford for petitioner in No. 706. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. Mahlon D. Kiefer for the United States. No. 701. United States v. Heber Nations. November 29, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. Mahlon D. Kiefer for the United States. Messrs. Charles G. Rivelle and Patrick H. Cullen for respondent. No. 702. Commonwealth of Kentucky ex rel. Frank E. Daugherty, Attorney General of the Commonwealth of Kentucky v. Waldemar Conrad Von Zedwitz, United States Trust Company of New York and Henry Cachard, Trustees, etc. November 29, 1926. Petition for a writ of certiorari to the Court of 736 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U.S. Appeals of the State of Kentucky denied. Mr. Benjamin D. Warfield for petitioner. Messrs. Alex. P. Humphrey, Edward P. Humphrey, Charles W. Milner, William A. W. Stewart, and George L. Shearer for respondents. No. 704. Arthur H. Lamborn et al., surviving partners DOING BUSINESS UNDER THE FIRM NAME AND STYLE of Lamborn and Company v. Steamship Texas Maru, Kokusai Kisen Kabushiki Kaisha. November 29, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Louis 0. Van Doran for petitioners. Mr. George C. Sprague for respondent. No. 718. Dorothy Lee v. United States. November 29, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Frank J. Hennessy and Marshall B. Woodworth for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for the United States. No. 740. John L. Hicks v. United States. December 6, 1926. Motion for leave to proceed further in jorma pauperis is denied for the reason that the court, upon inspection of the record as herein submitted, finds that there is no ground for certiorari to the Circuit Court of Appeals, application for which is hereby also denied. The costs already incurred herein by direction of the court shall be paid by the clerk from the special fund in his custody as provided in the order of October 29, 1926. Mr. John L. Hicks, pro se, for petitioner. No appearance for the United States. 737 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U.S. No. 707. Max Seif, on behalf of Nathan Seif, his BROTHER V. JOHN D. NAGLE, COMMISSIONER OF IMMIGRATION. December 6, 1926. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. C. A. A. McGee for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for respondent. • No. 717. Jesus M. Rossy v. Rafeal Del Valle Zeno. December 6, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. Cornelius C. Webster for petitioner. Messrs. Carroll G. Walter and William Greenough for respondent. No. 720. L. Bilodeau, W. R. Sword, David Everett, and Bernard Frank v. United States. December 6, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Robert B. McMillan for petitioners. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. John J. Byrne for the United States. No. 721. South Bend Bait Company v. James Hed-dons’ Sons, Inc., and Henry S. Dills. December 6, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Frederick D. McKenney for petitioner. Mr. Samuel W. Banning for respondents. No. 724. Harry F. Sinclair and Albert B. Fall v. United States. December 6, 1926. Petition for a writ of certiorari to the Court of Appeals of the District of 42847°—27-------47 738 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U.S. Columbia denied. Messrs. George P. Hoover, Martin W. Littleton, J. W. Zevely, Henry A. Wise, and Levi Cooke for petitioners. Messrs. Atlee Pomerene, Owen J. Roberts, and Peyton Gordon for the United States. No. 467. Baltimore & Ohio Southwestern Railroad Company v. Sherman D. Hill, Administrator of the Estate of Thomas J. Hill, Deceased. December 13, 1926. Petition for a writ of certiorari to the Appellate Court of the State of Indiana denied. Messrs. William A. Eggers, C. W. McMullen, and Morrison R. Waite for petitioner. Mr. Thomas M. Honon for respondent. No. 726. Lehigh Valley Railroad Company v. Harriet A. Bissett. December 13, 1926. Petition for a writ of certiorari to the Court of Errors and Appeals of the State of New Jersey denied. Mr. George S. Hobart for petitioner. Mr. Isidor Kalisch for respondent. No. 731. United States ex rel. Vincenzo Cosmano v. James J. Davis, Secretary of Labor, and W. J. Coyne, Inspector in Charge. December 13. 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Taylor E. Brown for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for respondents. No. 733. F. C. Boorman, doing business under the NAME AND STYLE OF THE TWENTIETH CENTURY COMPANY, and Lillian Mencl v. Edwards and Deutsch Lithographing Company. December 13, 1926. Peti- 739 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. tion for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Nelson J. Jewett and George A. Critton for petitioners. Mr. Wallace R. Lane for respondent. No. —, original. Ex parte in the matter of City of New York, Transit Commission, and John F. Gilchrist et al., etc. See ante, p. 650. No. 765. Otis Reese v. United States. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit. January 3, 1927. Motion for leave to proceed further in forma pauperis denied for the reason that the court, upon inspection of the record herein submitted, finds that there is no ground for certiorari to the Circuit Court of Appeals, application for which is hereby also denied. The costs already incurred herein by direction of the court shall be paid by the clerk from the special fund in his custody as provided in the order of October 29, 1926. Mr. Otis Reese, pro se. No appearance for the United States. No. 728. Al Lau v. United States. January 3, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. James M. Beck and Cyrus E. Dietz for petitioner. Solicitor General Mitchell and Assistant Attorney General Wille-brandt for the United States. No. 730. Hyman Schroeder, as Trustee in Bankruptcy of Famous Fain Company, Inc., Bankrupt v. Edward Howard O’Flyn. January 3, 1927. Petition for a writ of certiorari to the Circuit Cpurt of Appeals for 740 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U.S. the Second Circuit denied. Mr. Charles A. Riegelman for petitioner. Mr. George W. Wingate for respondent. No. 735. James G. Trainer v. Darby A. Day. January 3, 1927. Petition for a writ of certiorari to the Supreme Court of the State of New York denied. Mr. C. C. Daniels for petitioner. Mr. Thomas McCall for respondent. No. 592. H. L. Eveland, Hugh Smith, and B. W. Baer, Constituting Tax Commission of South Dakota v. Chicago and Northwestern Railway Company. See post, p. 775. No. 782. Morton S. Hawkins v. United States. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit. January 10, 1927. Motion for leave to proceed further in forma pauperis denied for the reason that the court, upon inspection of the record herein submitted, finds that there is no ground for certiorari to the Circuit Court of Appeals, application for which is hereby also denied. The costs already incurred herein by direction of the Court shall be paid by the clerk from the special fund in his custody as provided in the order of October 29, 1926. Mr. Morton S. Hawkins, pro se, for petitioner. No appearance for the United States. No. 732. William Bobkowski, in Behalf of Sabina Bobkowski, Josephine Bobkowski, et al. v. Henry H. Curran, Commissioner of Immigration. January 10, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Harold Van Riper for petitioners. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for respondent. 741 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U.S. No. 736. Harry F. Sinclair v. United States. January 10, 1927. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia denied. Messrs. George P. Hoover, Martin W. Littleton, J. W. Zevely, and G. T. Stanford for petitioner. Messrs. Atlee Pomerene, Owen J. Roberts, and Peyton Gordon for the United States. No. 738. Union Pacific Railroad Company v. Herbert W. Boyle. January 10, 1927. Petition for a writ of certiorari to the Supreme Court of the State of Nebraska denied. Messrs. C. A. Mag aw and N. H. Loomis for petitioner. Mr. Frank L. McCoy for respondent. No. 743. Luckenbach Steamship Company, Inc , Owner of the Steamship “ Walter A. Luckenbach” v. Union Oil Company of California, Claimant on Behalf of Itself and Its Underwriters on the Steam Tanker, etc., et al. January 10, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Louis T. Hengstler for petitioner. Messrs. S. Hasket Derby, Carroll Single, William Denman, William B. Acton, Edward J. McCutcheon, Warren Olney, Jr., and Farnham P. Griffiths for respondents. No. 745. Chillicothe Furniture Company v. Charles G. Revelle, Receiver of Interstate Casualty Company. January 10, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Guy A. Thompson for petitioner. No appearance for respondent. No. 746. Broderick and Bascom Rope Company v. Luckenbach Steamship Company. January 10, 1927. 742 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. Petition, for a writ of certiorari to the Supreme Court of the State of Washington denied. Mr. Winter S. Martin for petitioner. No appearance for respondent. No. 750. C. G. Cate v. United States. January 10, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. T. Pope Shepherd and Frank S. Carden for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Messrs. Alfred A. Wheat, and Harry S. Ridgely for the United States. No. 751. Texas Pipe Line Company v. J. L. Ware. January 10, 1926. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. J. Zach Spearing for petitioner. No appearance for respondent. No. 753. John H. Lothrop v. Southern Pacific Company. January 10, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. James G. Wilson and John F. Reilly for petitioner. Messrs. Ben C. Dey and Alfred A. Hampson for respondent. No. 754. John H. Lothrop v. Spokane, Portland and Seattle Railway Company. January 10, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. James G. Wilson and John F. Reilly for petitioner. Messrs. Charles H. Carey, James B. Kerr, and Charles A. Hart for respondent. No. 755. John H. Lothrop v. Oregon-Washington Railroad and Navigation Company. January 10, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. James OCTOBER TERM, 1926. 743 273 U. S. Decisions Denying Certiorari. G. Wilson and John F. Reilly for petitioner. Mr. Arthur C. Spencer for respondent. No. 757. American Railway Express Company v. Bert Rose and Arthur L. Lowe, Executors under the Will of George Rose. January 10, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Messrs. Austin M. Pinkham and A. M. Hartung for petitioner. No appearance for respondents. No. 758. Peter Schoenhofen Brewing Company v. Alvey-Ferguson Company. January 10, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. George A. Chrit-ton, Russell Wiles, and Frederic D. McKenney for petitioner. Mr. Jo. Baily Brown for respondent. No. 759. Robert B. Hudson, a Judge of the District Court of Tulsa County, Oklahoma v. Vernon V. Harris, as Receiver of the Riverside Oil and Refining Company, J. B. Dudley, and J. D. Lydick. January 10, 1927. Petition for a writ of certiorari to the Supreme Court of the State of Oklahoma denied. Mr. Henry B. Martin for petitioner. Messrs. John B. Dudley and J. D. Lydick for respondents. No. 760. Odie Oland Owens v. Vernon V. Harris, as Receiver of the Riverside Oil and Refining Company, J. B. Dudley, and J. D. Lydick. January 10, 1927. Petition for a writ of certiorari to the Supreme Court of the State of Oklahoma denied. Mr. Henry B. Martin for petitioner. Messrs. John B. Dudley and J. D. Lydick for respondents. 744 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 762. Bank of Montreal v. Beacon Chocolate Company. January 10, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Louis S. Dent and Charles Y. Freeman for petitioner. Mr. Mitchell D. Follansbee for respondent. No. 763. Henderson Tire and Rubber Company v. Aubert L. Reeves and Merrill E. Otis, Judges of the United States District Court, etc., et al. January 10, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Maurice H. Winger for petitioner. No appearance for respondent. No. 767. Frank D. Drake v. Sarah Thompson, John R. Thompson, and Iowa Savings Bank. January 10, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. William E. Shuman and Matthew A. Hall for petitioner. Mr. James J. Halligan for respondents. No. 110. Lucy Fisher, James Charles, Ellen Stake, nee Charles et al. v. E. J. Crider. See ante, p. 655. No. 644. Byron Dunn and Robert Dunn v. State of Louisiana. See ante, p. 656. No. 121. A. J. Thigpen and A. J. Thigpen, Jr. v. Midland Oil Company. See ante, p. 658. No. 761. Lucey Manufacturing Corporation v. Malcolm F. Morlan. January 17, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Godfrey Goldmark and Albert H. Crutcher for petitioner. Mr. Oscar Lawler for respondent. 745 OCTOBER TERM, 1926. Decisions Denying Certiorari'. 273 U. S. No. 773. Arturo Mended v. Justices Bingham, Anderson, and Johnson. January 17, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. Felix C. Devila for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. John J. Byrne for respondents. No. 774. Frank Sofge v. John W. Snook, Warden. January 17, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Hooper Alexander and Thomas W. Hardwick for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for respondent. No. 777. Utah Construction Company and Aetna Casualty and Surety Company v. United States for THE USE AND BENEFIT OF H. LlNDSTROM ET AL. January 17, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. B. M. Aikens for petitioners. Messrs. H. W. Hutton, Herman Phleger, and Fletcher G. Flaherty for respondents. No. 778. Orla Rubsamin, individually and as Receiver, etc. v. Carl H. Schultz, a corporation, et al. Certiorari to the Circuit Court of Appeals for the Second Circuit. January 24, 1927. The motion for leave to file petition for writ of certiorari nunc pro tunc is denied and the petition already filed is therefore stricken from the files. Mr. David Steckler for petitioner. Mr. William A. Barber for respondents. No. 842. Anna Nelson v. J. L. Walrod, S. E. Ellsworth, and C. W. Burnham. Error to the Supreme Court of the State of North Dakota. February 21, 1927. 746 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U.S. Motion for leave to proceed further herein in forma pauperis denied for the reason that the court, upon examination of the opinion of the court below and of the typewritten record herein submitted, finds (1) that there is no ground for the writ of error under § 237 of the Judicial Code, as amended by the Act of February 13, 1925, 43 Stat. 936, and (2) that there is involved no federal question upon which, treating the writ of error as an application for a writ of certiorari, such writ could be granted. The writ of error is therefore dismissed and the writ of certiorari denied. The costs already incurred herein by direction of the court shall be paid by the clerk from the special fund in his custody as provided in the order of October 29, 1926. Mr. Kenneth D. McKellar for plaintiff in error. No appearance for defendants in error. No. 788. Northwestern Mutual Life Insurance Company v. Marion Wiggins, Individually and as Executrix a*nd Trustee under the will of W. B. Wiggins, deceased. February 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Charles H. Carey, James B. Kerr, and Charles A. Hart for petitioner. Mr. Arthur C. Spencer for respondent. No. 789. Hagop Bogigian v. Henry F. Long, Commissioner of Corporations and Taxation ; and No. 790. Helen J. C. Bogigian v. Henry F. Long, Commissioner of Corporations and Taxation. February 21, 1927. Petition for writs of certiorari to the Superior Court of Suffolk County, State of Massachusetts, denied. Messrs. Hagop Bogigian, pro se, W. B. Grant, Henry E. Whittemore, and Helen J. C. Bogigian, pro se, for petitioners. No appearance for respondent. 747 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 792. George N. Konsoute v. Pennsylvania Railroad Company. February 21, 1927. Petition for a writ of certiorari to the Supreme Court of the State of Pennsylvania denied. Mr. J. Thomas Hoffman for petitioner. Messrs. Frederic D. McKenney, John S. Flannery, and Robert D. Dalzell for respondent. No. 795. State of Washington ex rel. Isadore R. Edelstein v. William A. Huneke, Judge of the Superior Court of Spokane County. February 21, 1927. Petition for a writ of certiorari to the Supreme Court of the State of Washington denied. Messrs. Georye Turner and Richard W. Nuzum for petitioner. Mr. S. M. Driver for respondent. No. 796. Jacob Telfair Smith v. United States Shipping Board Emergency Fleet Corporation; and No. 797. Catz American Shipping Company, Inc. v. United States Shipping Board Emergency Fleet Corporation. February 21, 1927. Petition for writs of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. James K. Symmers and John C. Prizer for petitioners. Solicitor General Mitchell, As-sistant Attorney General Farnum, and Mr. J. Frank Staley for respondent. No. 798. Buckeye Traction Ditcher Company v. Austin Machinery Company. February 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Wilber Owen for petitioner. No appearance for respondent. No. 800. Southern Industrial Institute v. Mrs. Burnham S. Marsh et al. February 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Daniel MacDougald for petitioner. Mr. Robert C. Alston for respondents. 748 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 803. Ida T. Dickinson, Luella J. Manning, Ellsworth Avery, et al. v. New England Power Company. February 21, 1927. Petition for a writ of certiorari to the Supreme Judicial Court of the State of Massachusetts denied. Mr. Herman H. Field for petitioner. Mr. Frank W. Knowlton for respondent. No. 805. Barker Painting Company v. Brotherhood of Painters, Decorators, and Paperhangers of America et al. February 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Henry S. Drinker, Jr., for petitioner. Mr. William A. Gray for respondents. No. 806. Dampskibs Aktieselsk Orient, claimant of the Danish Steamship “ Natal,” her engines, etc. v. W. R. Grace and Company. February 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Irving H. Frank, Nathan H. Frank, 0. D. Duncan, and Russell T. Mount for petitioner. Mr. W. H. Orrick for respondent. No. 810. George Gracie v. United States. February 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. Daniel T. Hagan for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. Mahlon D. Kiefer for the United States. No. 821. Pennsylvania Railroad Company v. Wtlt liam H. Muller and Company, Inc. February 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. Frederic D. McKenney, Ralph Robinson, and Shirley Carter for petitioner. Mr. R. E. Lee Marshall for re-( spondent. 749 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 345. St. Louis-San Francisco Railway Company v. State of Oklahoma et al. See post, p. 779. No. 855. Peter Lemieux v. United States and Shah Bah Yaust. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit. February 28, 1927. The motion for leave to proceed further herein in forma pauperis denied for the reason that the Court, upon examination of the unprinted record herein submitted, finds that there is no ground upon which a writ of certiorari can be issued, application for which is therefore hereby also denied. The costs already incurred herein by direction of the Court shall be paid by the clerk from the special fund in his custody as provided in the order of October 29, 1926. Mr. Webster Ballinger for petitioner. Solicitor General Mitchell, Assistant Attorney General Parmenter, and Mr. Nat M. Lacey for respondents. No. 299. Paul L. James and W. Willis Houston, PARTNERS, TRADING AS PAN-HANDLE COAL COMPANY, V. Norfolk and Western Railway Company. See ante, p. 662. _________ No. 812. Frank Weeke v. United States. See ante, p. 662. No. 784. Daniel O’Neill, Harry Levin, and Morris Multin v. United States. February 28,1927 Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Thomas J. Rowe, Jr., and Charles A. Houts for petitioners. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. John J. Byrne for the United States. No. 785. Michael Whalen v. United States. February 28, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. 750 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U.S. Messrs. Thomas J. Rowe, Jr., and Charles A. Houts for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. John J. Byrne for the United States. No. 786. Nathan Goldstein v. United States. February 28, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Thomas J. Rowe, Jr., and Charles A. Houts for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. John J. Byrne for the United States. ' No. 787. Harry F. Stratton v. United States. February 28, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Thomas J. Rowe, Jr., and Charles A. Houts for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. John J. Byrne for the United States. No. 775. CiTY of Wichita Falls, Texas, v. United States. February 28, 1927. Petition for a writ of certiorari to the Court of Claims denied. Mr. Robert Ash for petitioner. Solicitor General Mitchell, Assistant Attorney General Galloway, and Mr. Alexander H. McCormick for the United States. No. 776. American Railway Express Company v. United States. February 28, 1927. Petition for a writ of certiorari to the Court of Claims denied. Messrs. Benjamin S. Minor, H. Prescott Gatley, Hugh B. Rowland, Arthur P. Drury, and A. M. Hartung for petitioner. Solicitor General Mitchell, Assistant Attorney General Galloway, and Mr. Louis R, Mehlinger for the United States. 751 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 780. Luther J. Bailey and James E. Fulgham v. United States. February 28, 1927. Petition for a writ of certiorari to the Court of Claims denied. Mr. Theodore D. Peyser for petitioners. Solicitor General Mitchell, Assistant Attorney General Galloway, and Mr. Howard W. Ameli for the United States. No. 793. American Exchange Irving Trust Company (formerly Irving Bank-Columbia Trust Company), as Executor of the Estate of Herman Sielcken, deceased, v. United States. February 28, 1927. Petition for a writ of certiorari to the Court of Claims denied. Messrs. Leonard B. Smith and John L. McMaster for petitioner. Solicitor General Mitchell, Assistant Attorney General Galloway, and Mr. Alexander H. McCormick for the United States. No. 804. Wabash Railway Company v.. South Daviess County Drainage District. February 28, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. N. S. Brown, Homer Hall, S. J. Jones, and Frederic D. McKenney for petitioner. Mr. Platt Hubbell for respondent. No. 809. E. B. Johnson, L. A. Sanders, County Treasurer, and Maxwell Investment Company v. William Fetzer. February 28, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. John B. Dudley and Alger Melton for petitioners. Messrs. A. D. Stevens and J. B. Furry for respondent. No. 812. Frank Weeke v. United States. February 28, 1927. Petition for a writ of certiorari to the Circuit 752 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U.S. Court of Appeals for the Eighth Circuit denied. Mr. Walter A. HUI for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. Norman J. Morrisson for the United States. No. 814. American Security Company and Albert Pick and Company v. Steel’s Consolidated, Inc. February 28, 1927. Petition for a writ of certiorari to the Supreme Court of the State of New York denied. Mr. Alfred, M. Saperston for petitioners. Messrs. James C. Sweeney and Henry W. Killeen for respondents. No. 817. Illinois Central Railroad Company v. United States. February 28, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Edward C. Craig, Charles A. Helsell, W. S. Horton, and C. J. Baird for petitioner. Solicitor General Mitchell and Assistant Attorney General Farnum for the United States. No. 818. McGrew Coal Company v. Andrew W. Mellon, as Federal Agent. February 28, 1927. Petition for a writ of certiorari to the Supreme Court of the State of Missouri denied. Mr. Edwin A. Krauthoff for petitioner. Messrs. E. J. White and James F. Green for respondent. No. 819. City of Seattle v. Puget Sound Power and Light Company. February 28, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Thomas J. L. Kennedy for petitioner. No appearance for respondent. 753 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 874. Puget Sound Power and Light Company v. City of Seattle. February 28, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. James B. Howe for petitioner. No. appearance for respondent. No. 820. Seaboard Air Line Railway Company v. M. A. Inge. February 28, 1927. Petition for a writ of certiorari to the Supreme Court of the State of North Carolina denied. Mr. Murray Allen for petitioner. Messrs. George C. Green and J. B. Ramsey for respondent. No. 822. M. Coppard, Trustee of the Estate of Dollingers, Incorporated, Bankrupt v. B. C. Martin. February 28, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Perry J. Lewis for petitioner. No appearance for respondent. No. 824. A. G. Johns, as Trustee in Bankruptcy of E. Y. Foley, Inc., a Bankrupt, etc. v. United Bank and Trust Company of California. February 28, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Tracy L. Jeffords, Edwin C. Dutton, and Theodore M. Stuart for petitioner. Messrs. D. S. Ewing, 0. K. Cushing, Charles S. Cushing, Dilger Trowbridge, and John E. Biby for respondent. No. 825. A. G. Johns, as Trustee in Bankruptcy of E. Y. Foley, Inc., a Bankrupt, etc. v. Pacific-Southwest Trust and Savings Bank, J. E. Lynes, individually, etc., Andrews Bros, et al. February 28, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Tracy L. Jeffords for petitioner. Messrs. John E. Biby and George E. Farrand for respondents. 42847°—27-48 754 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 830. Chicago, Indianapolis and Louisville Railway Company v. Alva Crawford. February 28, 1927. Petition for a writ of certiorari to the Appellate Court for the First District of the State of Illinois denied. Messrs. John D. Black and Edward G. Ince for petitioner. Messrs. Morse Ives and Herbert H. Patterson for respondent. No. 831. New York, New Haven and Hartford Railroad Company v. Agnes Sullivan. February 28, 1927. Petition for a writ of certiorari to the Supreme Court of Errors, Third Judicial District of the State of Connecticut, denied. Mr. John M. Gibbons for petitioner. No appearance for respondent. No. 832. Saveria Spremulli v. Henry H. Curran, Commissioner of Immigration. February 28, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Roger O’Donnell for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for respondent. No. 833. John H. Parrott v. John C. Noel, Collector of Internal Revenue. February 28, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourt Circuit denied. Mr. Homer Sullivan for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Messrs. K. L. Campbell, A. W. Gregg, and William T. Sabine, Jr., for respondent. No. 834. H. R. Davis, for the use and benefit of HIMSELF AND ALL OTHERS SIMILARLY SITUATED, V. S. J. McFarland et al. February 28, 1927. Petition for a 755 OCTOBER TERM,-1926. Decisions Denying Certiorari. 273 U. S. writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. John Davis for petitioner. Messrs R. E. L. Saner, M. M. Crane, and Cullen F. Thomas for respondents. No. 835. Alexander B. Stewart v. District Court of the United States for the Southern District of California, Southern Division, et al. February 28, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. C. W. Pendleton and Marion DeVries for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. John J. Byrne for respondents. No. 837. Honto H. Tooley, Individually and as Executrix OF ESTATE OF WlLLIAM L. TOOLEY, DECEASED, v. Aetna Life Insurance Company. February 28, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Frank G. Morris for petitioner. Mr. Harry P. Lawther for respondent. No. 808. William Stewart, enrolled as a Seminole Indian under the name of William, Ned Lusty, ACTING FOR HIMSELF AND AS GUARDIAN, ETC., ET AL. V. C. B. Billington, Skelly Oil Company, C. M. Cade, et al. March 7, 1927. Petition for a writ of certiorari to the Supreme Court of the State of Oklahoma denied. Messrs. John G. Campbell, William W. Pryor, and William N. Stokes for petitioners. Messrs. W. P. Z. German and Alvin F. Molony for respondents. No. 838. Charles Hoxie v. United States. March 7, 1927. Petition for a writ of certiorari to the Circuit Court 756 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. 8. of Appeals for the Ninth Circuit denied. Messrs. J. A. Hellenthal and Morven Thompson for petitioner. Solicitor General Mitchell and Assistant Attorney General Willebrandt for the United States. No. 841. Albert V. T. Day v. Union Switch and Signal Company. March 7, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Charles S. Jones and William S. Pritchard for petitioner. Mr. Ralph L. Scott for respondent. No. 845. William F. Allen and W. Herbert Hall, Copartners, etc., et al. v. New York, Philadelphia and Norfolk Railroad Company, Pennsylvania Railroad Company, et al. March 7, 1927. Petition for writ of certiorari to the Circuit Court for the Fourth Circuit denied. Mr. James E. Heath for petitioners. Messrs. Frederic D. McKenney, John S. Flannery, George R. Allen, and Henry W. Biklé for respondents. No. 846. Gustavus A. Buder and Oscar E. Buder v. Ehrhardt W. Franz. March 7, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Gustavus A. Buder and Oscar E. Buder, pro se. Messrs. S. Mayner Wallace and Allen McReynolds for respondent. No. 847. White Oak Coal Company v. United States. March 7, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. Addison C. Burnham, John W. Davis, and Robert S. Spilman for petitioner. Solicitor General Mitchell, Assistant Attorney General Galloway, and Messrs. Alfred A. Wheat, and Howard W. Ameli for the United States. 757 OCTOBER TERM, 1926. Decisions Denying Certiorari. m u. s. No. 849. Alexander Milburn Company v. Union Carbide & Carbon Corporation, Union Carbide Company, Union Carbide Sales Company, et al. March 7, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. J. Kemp Bartlett, Edgar Allen Poe, and Guion Miller for petitioner. Messrs. Edwin G. Baetger, Fred H. Hagger-son, W. Calvin Chesnut, and Julian C. Harrison for respondents. No. 853. Chicago and North Western Railway Company v. Industrial Commission of Illinois et al., and Louis Veruchi, administrator of the estate of Dominic Veruchi, deceased. March 7, 1927. Petition for a writ of certiorari to the Circuit Court of Winnebago County, State of Illinois, denied. Messrs. Samuel H. Cady, Weldon A. Day ton, and R. N. VanDoren for petitioner. Mr. Roy F. Hall for respondents. No. 856. Stanley C. Kimble and Walter E. Ahl-berg, Administrators of Bernard A. Ahlberg, deceased v. Aetna Life Insurance Company. March 7, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Messrs. Samuel H. Richards and Thomas E. French for petitioners. Mr. Paul Reilly for respondent. No. 857. John R. Land v. Columbus Brockett. March 7, 1927. Petition for a writ of certiorari to the Supreme Court of the State of Louisiana denied. Mr. S. L. Herrold for petitioner. No appearance for respondent. No. 811. Frank W. Keeler v. Stanley Myers, District Attorney, etc., and Thomas M. Hurlburt, Sheriff. See ante, p. 668. 758 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U.S. No. 861. Birmingham Belt Railroad Company v. Jessie May Hendrix, as Administratrix of the Estate of George Hendrix, deceased. March 14, 1927. Petition for a writ of certiorari to the Supreme Court of the State of Alabama denied. Messrs. E. H. Cabaniss, Forney Johnston, and W. R. C. Cocke for petitioner. Messrs. John London, George W. Yancey, and Walter Brower for respondent. No. 839. Hanover Fire Insurance Company of New York v. Merchants Transportation Company. March 14, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Carroll Single, S. Hasket Derby, and Benjamin S. Grosscup for petitioner. Mr. Overton G. Ellis for respondent. No. 859. Thomas R. Tarn v. United States. March 14, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Lowrie C. Barton for petitioner. Solicitor General Mitchell, Assistant Attorney General Galloway, and Mr. Howard W. Ameli for the United States. No. 865. Detroit Terminal Railroad Company v. Pennsylvania-Detroit Railroad Company and Pennsylvania Railroad Company. March 14, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Frank E. Robson for petitioner. Mr. Frederic D. McKenney for respondents. No. 867. P. S. Kendrick and J. A. Kendrick v. Mary W. Kendrick. March 14, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth 759 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. Circuit denied. Messrs. J. M. McCormick, S. M. Lejt-wich, and Paul Carrington for petitioners. Mr. David B. Trammett for respondent. No. 868. Caroline H. McDowell, Executrix of the Estate of Jesse C. McDowell, Deceased v. D. B. Heiner, Collector of Internal Revenue. March 14, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. William G. Heiner for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Messrs. Sewall Key, and A. W. Gregg for respondent. No. 871. Ormsby McKnight Mitchel v. Frank K. Bowers, Collector of Internal Revenue. March 14, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Herman Aaron for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. Sewall Key for respondent. No. 877. Federal Trade Commission v. Harriet Hubbard Ayer, Inc. March 14, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Solicitor General Mitchell, and Messrs. Bayard T. Hainer, and Adrian F. Busick for petitioner. Mr. Ernest W. Marlow for respondent. No. 870. United States v. Sakharam Ganesh Pandit. March 14, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for the United States. No appearance for respondent. 760 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273U.S. 4 No. 875. First National Bank of Ogden v. First National Bank of Rigby. March 14, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. J. H. DeVine and J. A. Howell for petitioner. No appearance for respondent. No. 961. Carlos Arocho v. Porto Rico. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit. March 21, 1927. The motion for leave to proceed further herein in forma pauperis is denied for the reason that the Court, upon examination of the unprinted record herein submitted, finds that there is no ground upon which certiorari can be issued, application for which is therefore hereby also denied. The costs already incurred herein by direction of the Court shall be paid by the clerk from the special fund in his custody as provided in the order of October 29, 1926. Mr Frank Antonsanti for petitioner. No appearance for respondent. No. 878. Sylvester Company v. Malcolm E. Nichols, Collector of Internal Revenue. March 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. George S. Fuller for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Messrs. J. Louis Monarch, A. W. Gregg, and John R. Wheeler for respondent. No. 879. E. Henry Wemme Company v. Ben Selling, Dr. Allen P. Noyes, Edgar H. Sensenich, et al., etc. March 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Edward W. Wickey and Thomas Mannix for petitioner. No appearance for respondents. 761 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 883. 500 Cases of Tomatoes and Italia-Ameri-can Shipping Corporation v. Francis H. Leggett and Company. March 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Homer L. Loomis for petitioners. Mr. T. Catesby Jones for respondent. No. 885. Cropper Knitting Mills, Inc. v. Franklin Knitting Mills, Inc. March 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Avel B. Silverman for petitioner. Mr. Edward M. Evarts for respondent. No. 886. Philadelphia and Reading Railway Company (now Reading Company) v. William A. Auchen-bach. March 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Edward L. Katzenbach for petitioner. Mr. Samuel Schneider for respondent. No. 892. Mrs. J. W. Peebles and J. W. Peebles v. Exchange Building Company. March 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. J. W. Canada for petitioners. No appearance for respondent. No. 895. Baltimore and Ohio Railroad Company and Gauley Company v. Cary C. Hines, administrator de BONIS NON OF THE PERSONAL ESTATE OF WlLLIAM CREN-nell, Jr., deceased. March 21, 1927. Petition for a writ of certiorari to the Circuit Court of Braxton County, State of West Virginia, denied. Mr. W. E. Haymond for petitioners. Mr. Carey C. Hines, pro se. 762 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 896. Baltimore and Ohio Railroad Company v. Cary C. Hines, administrator de bonis non of the PERSONAL ESTATE OF WlLLAM CRENNELL, Jr., DECEASED. March 21, 1927. Petition for a writ of certiorari to the Supreme Court of Appeals of the State of West Virginia, denied. Mr. W. E. Haymond for petitioner. Mr. Carey C. Hines, pro se. No. 897. William E. Guy v. Honorable Jake Fisher, Judge of the Circuit Court of Braxton County, Cary C. Hines, administrator de bonis non, etc., et al. March 21, 1927. Petition for a writ of certiorari to the Supreme Court of Appeals of the State of West Virginia denied. Mr. W. E. Haymond for petitioner. Mr. Carey C. Hines, pro se. No. 900. Derby Oil Company v. H. H. Motter, Internal Revenue Collector. March 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. John H. Brennan and Harry H. Smith for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. Sewall Key for respondent. No. 826. Clement H. Betts v. United States. March 21, 1927. Petition for a writ of certiorari to the Court of Claims denied. Messrs. Lucius H. Beers, Franklin B. Lord, and Parker McCollester for petitioner. Solicitor General Mitchell, Assistant Attorney General Galloway, and Mr. Fred K. Dyar for the United States. No. 887. Sophie Weichers v. Birdie Weichers. March 21, 1927. Petition for a writ of certiorari to the Supreme Court of the State of California denied. Messrs. Frederick C. Peterson and Albert E. Carter for petitioner. OCTOBER TERM, 1926. 763 273 U. S. Decisions Denying Certiorari. Messrs. William I. Brobeck and Herman Phleger for respondent. No. 888. Marion B. Friedenwald v. Herbert Frieden-wald. March 21, 1927. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia denied. Messrs. Harry A. Hegarty and Edwin A. Mooers for petitioner. Mr. Henry E. Davis for respondent. No. 893. Red Wing Malting Company v. Levi M. Willcuts, Collector of Internal Revenue, etc. March 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. William H. Oppenheimer and Montreville J. Brown for petitioner. Solicitor General Mitchell and Assistant Attorney General Willebrandt for respondent. No. 899. Alice A. Bauchspies v. Central Railroad Company of New Jersey. March 21, 1927. Petition for a writ of certiorari to the Supreme Court of the State of Pennsylvania denied. Mr. Ulysses S. Koons for petitioner No appearance for respondent. No. 901. Earl Carroll v. United States. March 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. James M. Beck, Herbert C. Smith, Wilton J. Lambert, and R. H. Yeatman for petitioner. Solicitor General Mitchell, As-sistant to the Attorney General Donovan, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for the United States. 764 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 907. Land Company of Florida v. I. H. Fetty. March 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. George T. Cann and Samuel B. Adams for petitioner. Messrs. A. B. Lovett and Robert M. Hitch for respondent. No. 908. National Electric Ticket Register Company v. Automatic Ticket Register Company. March 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Louis E. Giles for petitioner. Mr. E. W. Marshall for respondent. No. 910. Julia Burnet Rice v. Mark Eisner, Collector of Internal Revenue. March 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Louis Marshall for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Messrs. Sewall Key, A. W. Gregg, and Fred W. Dewart for respondent. No. 911. Henry C. Dunlap v. United States. March 21, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Sam G. Bratton for petitioner. Solicitor General Mitchell, Assistant Attorney General Parmenter, and Mr. G. A. Iverson for the United States. No. 756. Miller and Lux, Incorporated v. Railroad Commission of the State of California, H. W. Brun-dige, C. L. Seavey, et al., etc. Error to the Supreme Court of the State of California. April 11, 1927. On suggestion of diminution of the record the motion for a 765 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. writ of certiorari herein is denied. Mr. Adolphus E. Graupner for plaintiff in error. Mr. Carl I. Wheat for defendants in error. No. 942. Ida Conley v. N. J. Wollard, administrator of the Estate of Ethan L. Zane, deceased. See ante, p. 674. No. 912. Thomas P. Duffy v. Colonial Trust Company. April 11, 1927. Petition for a writ of certiorari to the Supreme Court of the State of Pennsylvania denied. Mr. Benjamin B. Pettus for petitioner. Mr. Thomas Patterson for respondent. No. 913. Fred Hood v. United States. April 11, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Warren K. Snyder for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for the United States. No. 917. El Reno Wholesale Grocery Company v. California Prune and Apricot Growers, Inc. April 11, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. W. F. Wilson for petitioner. Mr. Aaron Sapiro for respondent. No. 918. Alice McClelland v. Highway Construction Company and George Stewart. April 11, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Alice McClelland, pro se. No appearance for respondent. 766 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U. S. No. 919. Gulf, Mobile and Northern Railroad Company v. J. A. Myers. April 11, 1927. Petition for a writ of certiorari to the Supreme Court of the State of Mississippi denied. Mr. Ellis B. Cooper for petitioner. Mr. Elmer C. Sharp for respondent. No. 920. Hermann F. M. Mutzenbecher, Frank F. Mutzenbecher, Ernest Behr, et al., etc. v. Sumner Ballard. April 11, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Jennings C. Wise and Frank D. Moore for petitioners. Mr. David Rumzey for respondent. No. 921. Ivor Armstrong v. United States. April 11, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Ernest B. D. Spagnoli for petitioner. Solicitor General Mitchell, Assistant Attorney General Willebrandt, and Mr. K. L. Campbell for the United States. No. 923. Charles J. Barnes and Jean Mason Barnes, Margaret Mulvihill, and Frank Mulvihill v. Southern Pacific Company and Southern Pacific Railroad Company. April 11, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Gurney E. Newlin for petitioner. Messrs. Frank Thunen, C. F. R. Ogilby, and W. I. Gilbert for respondents. No. 925. Maison Dorin Societe Anonyme v. John W. Arnold, Dan H. Arnold, Adelaide F. Arnold, et al., etc. April 11, 1927, Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. 767 OCTOBER TERM, 1926. Decisions Denying Certiorari. u. s. Messrs. Charles R. Allen, Howard T. Kingsbury, Hugo Mock, and Asher Bloom for petitioner. Mr. Lorenzo D. Armstrong for respondents. No. 926. Maison Dorin Societe Anonyme v. John W. Arnold, Dan H. Arnold, Adelaide F. Arnold, et al., etc. April 11, 1927, Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Charles R. Allen for petitioner. Mr. Lorenzo D. Armstrong for respondents. No. 928. Union Trust Company of Maryland v. Chapman A. Peck, Trustee. April 11, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Walter H. Buck for petitioner. Messrs. G. Ridgely Sappington and Charles G. Baldwin for respondent. No. 932. Louise Taylor v. Southern Railway Company. April 11, 1927. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia denied. Messrs. William H. DeLacy and William C. DeLacy for petitioner. No appearance for respondent. No. 933. Robert Murphy and Edward Caples, et al., as Trustees and Executors of Mrs. M. A. Caples, deceased v. Frank W. Vellacott, as Trustee in Bankruptcy of Estate of Joseph Caples, bankrupt. April 11, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. John W. Morrow for petitioners. Mr. William H. Burges for respondent. 768 OCTOBER TERM, 1926. Decisions Denying Certiorari. 273 U.S. No. 934. Grainger Brothers Company v. G. Am-sinck and Company, Inc. April 11, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. William Ritchie, Jr., and James M. Beck for petitioner. Mr. Joseph D. Fraden-burg for respondent. No. 935. H. J. Hughes Company v. G. Amsinck and Company, Inc. April 11, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. William Ritchie, Jr., and James M. Beck for petitioner. Mr. Joseph D. Fraderiburg for respondent. No. 936. Bliss Syrup Refining Company v. G. Amsinck and Company, Inc. April 11, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. William Ritchie, Jr., and James M. Beck for petitioner. Mr. Joseph D. Fraderiburg for respondent. No. 937. E. B. Cantrell et al. v. United States. April 11, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Rhodes S. Baker for petitioners. Solicitor General Mitchell, Assistant Attorney General Willebrandt and Mr. John J. Byrne for the United States. No. 938. Roscoe Hunnicutt v. United States. April 11, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Rhodes S. Baker for petitioners. Solicitor General Mitchell, Assistant Attorney General Willebrandt and Mr. John J. Byrne for the United States. OCTOBER TERM, 1926. 769 273 U. S. Cases Disposed of Without Consideration by the Court. No. 940. Stamatis Anastasopoulos et al. v. Steger and Sons Piano Manufacturing Company et al. April, 11, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Patrick H. O'Donnell for petitioners. Messrs. Edward J. Brundage, Benson Landon, Robert N. Holt, and David M. Kahane for respondents. No. 949. United States ex rel. Samuel Oppenheim v. William C. Hecht, United States Marshal. April 11, 1927. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. William E. Russell and M. Wallace Dickson for petitioner. Mr. Robert D. Murray for respondent. No. 922. Liberty National Bank of South Carolina et al. v. J. W. McIntosh, Comptroller of the Currency of the United States et al. See post, p. 783. CASES DISPOSED OF WITHOUT CONSIDERATION BY THE COURT, FROM OCTOBER 4, 1926, TO AND INCLUDING APRIL 11, 1927. No. 10, original. United States v. State of Wisconsin. October 4, 1926. Bill of complaint dismissed on motion of Solicitor General Mitchell for the United States. No appearance for respondent. No. 10. United States v. Lucia E. Blount, in her OWN RIGHT AND AS ADMINISTRATRIX, C. T. A., OF THE ESTATE of Henry F. Blount, deceased. Appeal from the Court of Claims. October 4, 1926. Dismissed on motion of Solicitor General Mitchell for the United States. Messrs. Jesse B. Adams and Charles F. Carusi for appellee. _________ No. 668. W. Henry Mattox v. United States. Error to the District Court of the United States for the North-428470—27—49 770 OCTOBER TERM, 1926. Cases Disposed of Without Consideration by the Court. 273 U. S. ern District of Georgia. October 4, 1926. Docketed and dismissed on motion of Solicitor General Mitchell for the United States. No appearance for plaintiff in error. No. 99. J. McGuire v. Railroad Labor Board. Appeal from the District Court of the United States for the Northern District of Illinois. October 4, 1926. Appeal dismissed and case remanded to the United States District Court for the Northern District of Illinois with directions to dismiss the petition without costs to either party, per stipulation of counsel, on motion of Solicitor General Mitchell in that behalf, for appellee. Mr. Donald R. Richberg for appellant. No. 7. Public Utilities Commission of the State of Kansas, C. M. Read, J. W. Greenleaf et al. v. Arkansas Valley Interurban Railway Company. Appeal from the District Court of the United States for the District of Kansas. October 4, 1926. Dismissed with costs on motion of Mr. Fred S. Jackson for appellants. Mr. Chester I. Long for appellee. No. 321. Chicago Great Western Railroad Company v. Marian S. Jackson. Certiorari to the Supreme Court of the State of Minnesota. October 4, 1926. Dismissed without costs or disbursements to either party per stipulation of counsel. Mr. Asa G. Briggs for petitioner. Mr. F. M. Miner for respondent. No. 581. Dad's Auto Accessories, Inc. v. City of Nashville, George J. Tompkins, J. W. Bauman, and Hiliary E. House, etc. Error to the Supreme Court of the State of Tennessee. October 4, 1926. Dismissed OCTOBER TERM, 1926. 771 273 U. S. Cases Disposed of Without Consideration by the Court. with costs per stipulation of counsel. Mr. Norman Farrell for plaintiff in error. No appearance for defendant in error. No. 25. Delia Salzer v. United States, Treasury Department, Bureau of War Risk Insurance. Error to and petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit. October 11, 1926. Writ of error and petition for writ of certiorari dismissed per stipulation of counsel on motion of Solicitor General Mitchell in that behalf, for the United States. Messrs. Thomas F. Walsh and James A. Beha for plaintiff in error. No. 381. International-Great Northern Railroad Company et al. v. Texas Company. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit. October 11, 1926. Petition for writ of certiorari dismissed on motion of Mr. Richard W. Wilmer in behalf of Messrs. Sam Streetman and Samuel B. Dabney for petitioner. Mr. Herbert S. Garrett for respondent. No. 483. International-Great Northern Railroad Company et al. v. Texas Company. Petition for writ of certiorari to the Court of Civil Appeals for the Third Supreme Judicial District of the State of Texas. October 11, 1926. Petition for writ of certiorari dismissed on motion of Mr. Richard W. Wilmer in behalf of Messrs. Sam Streetman and Samuel B. Dabney for petitioners. Messrs. Harry T. Klein, H. S. Garrett, and Charles A. Wilcox for respondent. No. 470. United States v. Curtis and Company Manufacturing Company. Petition for a writ of cer 772 OCTOBER TERM, 1926. Cases Disposed of Without Consideration by the Court. 273 U. S. tiorari to the Court of Claims. October 12, 1926. Dismissed on motion of Mr. Dean Hill Stanley for the United States. No appearance for respondent. No. 695. Albert Ottinger, as Attorney General of the State of New York v. Bronx Gas and Electric Company. Appeal from the District Court of the United States for the Southern District of New York. October 18, 1926. Docketed and dismissed with costs on motion of Mr. William L. Ransom for appellee. No appearance for appellant. No. 77. S. Nose v. U. S. Webb, Attorney General of the State of California, et al. October 21, 1926. Dismissed pursuant to nineteenth rule. Mr. Lewis E. Whitehead for plaintiff in error. Messrs. Tracy C. Becker, [U. S. Webb, and Frank English for defendant in error. No. 130. Leslie A. Gilmore v. State of Illinois. Error to the Supreme Court of the State of Illinois. October 29, 1926. Dismissed with costs on authority of Mr. A. M. Fitzgerald for plaintiff in error. Mr. Oscar E. Carlstrom for defendant in error. No. 58. Everett Flint Damon ex rel. Chin Hen Youe v. John P. Johnson, Commissioner of Immigration. Appeal from the District Court of the United States for the District of Massachusetts transferred from the Circuit Court of Appeals for the First Circuit. November 1, 1926. Cause remanded to the District Court of the United States for the District of Massachusetts with directions to dismiss the petition for a writ of habeas corpus without prejudice and without costs to either OCTOBER TERM, 1926. 773 273 U. S. Cases Disposed of Without Consideration by the Court. party, per stipulation of counsel, on motion of Solicitor General Mitchell in that behalf, for appellee. Mr. Everett Flint Damon for appellant. No. 670. James Cusmano v. United States. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit. November 1, 1926. Dismissed on motion of Mr. W. F. Connally for petitioner. No appearance for the United States. No. 67. United States v. George C. Taylor, as President of the American Express Company. Appeal from the Court of Claims. November 23, 1926. Dismissed, on motion of Solicitor General Mitchell for the United States. Messrs. John G. Milbum and Joseph W. Welsh for appellee. No. 145. Elmer C. Potter, Prohibition Director, v. James Geraghty. Appeal from the District Court of the United States for the District of Massachusetts. November 23, 1926. Remanded to the District Court of the United States for the District of Massachusetts, per stipulation of counsel, with directions to that court to vacate its judgment and to enter an order providing for the destruction of the liquors forthwith, and mandate granted, on motion of Solicitor General Mitchell for appellant. No. 737. Oklahoma Coal Company v. R. Atkinson et al. Error to the Supreme Court of the State of Oklahoma. November 23, 1926. Docketed and dismissed on motion of Mr. Robert F. Cogswell for defendant in error. No appearance for plaintiff in error. 774 OCTOBER TERM, 1926. Cases Disposed of Without Consideration by the Court. 273 U. S. No. 4. Henry F. Mueller, Josephine Waldeck, Leona Muller by Josephine Waldech, Curatrix, et al. v. Samuel W. Adler, St. Louis Transit Co., et al. Appeal from the Circuit Court of Appeals for the Eighth Circuit. November 23, 1926. Appeal dismissed on motion of Messrs. William J. Hughes and Henry J. Richardson for appellants. Mr. Henry S. Priest for appellees. No. 639. M. Hartley Dodge v. Minnie E. Allison and Audrey E. Allison, Executrices of J. Wesley Allison, Deceased. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit. November 23, 1926. Petition dismissed, on motion of Messrs. Robert H. McCarter and John A. Garver for petitioner. Mr. Jacob L. Newman for respondents. No. 92. Chapman S. Clark v. United States. Appeal from the Court of Claims. December 7, 1926. Judgment reversed on confession of error, and cause remanded to the Court of Claims for further proceedings on motion of Solicitor General Mitchell for the United States. Messrs. Horace S. Whitman and Chapman S. Clark, pro se, for appellant. No. 188. Chin Set Wong, uncle and next friend of Chin Fook, v. John B. Johnson, Commissioner of Immigration. Appeal from the District Court of the United States for the District of Massachusetts. December 7, 1926. Dismissed with costs on motion of Mr. Everett Flint Damon for appellant. No appearance for appellee. OCTOBER TERM, 1926. 775 273 U. S. Cases Disposed of Without Consideration by the Court. No. 580. Claude P. Street Piano Company, Roy Warden, Katherine D. Street, et al. v. City of Nashville, George J. Tompkins, J. W. Bauman, and Hilary E. House, etc. Error to the Supreme Court of the State of Tennessee. December 13, 1926. Writ of error dismissed per stipulation of counsel, on motion of Mr. Norman Farrell for plaintiffs in error. No. 144. United States v. John A. Munroe. Error to the District Court of the United States for the District of Nebraska. January 3, 1927. Dismissed on motion of Solicitor General Mitchell for the United States. No. 189. Seid Man, as next friend of Seid Wong, v. John P. Johnson, Commissioner of Immigration. Appeal from the District Court of the United States for the District of Massachusetts. January 3, 1927. Dismissed with costs, on motion of Mr. Everett Flint Damon for appellant. No appearance for appellee. No. 592. H. L. Eveland, Hugh Smith, and B. W. Baer, Constituting Tax Commission of South Dakota v. Chicago and Northwestern Railway Company. Certiorari to the Circuit Court of Appeals for the Eighth Circuit. January 3, 1927. Writ of certiorari dismissed, each party to pay their own costs, per stipulation of counsel. Messrs. Byron S. Adams and Samuel Herrick for petitioners. Mr. A. K. Gardner for respondent. No. 708. A. S. Rhodes v. State of Georgia. Error to the Supreme Court of the State of Georgia. January 3, 776 OCTOBER TERM, 1926. Cases Disposed of Without Consideration by the Court. 273 U. S. 1927. Dismissed with costs on motion of Mr. Benjamin E. Pierce for plaintiff in error. No appearance for defendant in error. No. 658. S. F. Larsen v. State of Texas. Error to the Court of Criminal Appeals of the State of Texas. January 3, 1927. Dismissed with costs on motion of Mr. Elgin H. Blalock for plaintiff in error. No appearance for defendant in error. No. 656. George R. Dale v. State of Indiana. Error to the Supreme Court of the State of Indiana. January 3, 1927. Dismissed with costs pursuant to the eleventh rule. Messrs. William V. Rooker and Moses E. Clapp for plaintiff in error. Messrs. Arthur L. Gilliom and Edward M. White for defendant in error. No. 666. Knoxville Ice and Cold Storage Company and John F. Shea v. City of Knoxville, B. A. Morton, Mayor, etc. Error to the Supreme Court of the State of Tennessee. January 3, 1927. Dismissed with costs on motion of Mr. James B. Wright for plaintiffs in error. No appearance for defendants in error. No. 347. Andrew W. Mellon, Director General of Railroads, etc. v. Wilbur E. Skinner; No. 348. Andrew W. Mellon, Director General of Railroads, etc. v. Victor H. Wilson; No. 349. Andrew W. Mellon, Director General of Railroads, etc. v. Warren R. Bennison; and No. 350*. Andrew W. Mellon, Director General of Railroads, etc. v. Peter S. Stoneham. Certiorari to the Supreme Court of the State of Missouri. January 4, OCTOBER TERM, 1926. 777 273 U. S. Cases Disposed of Without Consideration by the Court. 1927. Dismissed with costs on motion of Mr. Sidney F. Andrews, with whom Messrs. A. A. McLaughlin, E. T. Miller, and Henry S. Conrad were on the brief, for petitioner. Mr. William S. Hogsett for respondents. No. 802. United States v. Huron Navigation Company. Appeal from the Court of Claims. January 10, 1927. Dismissed and mandate granted on motion of Solicitor General Mitchell for the United States No. 697. United States v. Moritz Neuberger. Certiorari to the Circuit Court of Appeals for the Second Circuit. January 10, 1927. 'Case remanded to the District Court of the United States for the Southern District of New York with instructions to dismiss the original petition for naturalization therein on the ground that the question involved has been rendered moot through the admission of the respondent to citizenship on December 20, 1926, on a new petition for naturalization filed September 1, 1926, per stipulation of counsel on motion of Solicitor General Mitchell for the United States. Mr. Louis Marshall for respondent. No. 160. United States v. American Refining Company. Error to the District Court of the United States for the Northern District of Texas. January 17, 1927. Dismissed on motion of Solicitor General Mitchell for the United States. Mr. Harry C. Weeks for defendant in error. No. 161. American Refining Company v. United States. Error to the District Court of the United States for the Northern District of Texas. January 17, 1927. 778 OCTOBER TERM, 1926. Cases Disposed of Without Consideration by the Court. 273 U. S. Reversed on confession of error on motion of Solicitor General Mitchell for the United States. Mr. Harry C. Weeks for plaintiff in error. No. 665. Celluloid Company v. Commonwealth of Massachusetts. Error to the Supreme Judicial Court of the State of Massachusetts. January 17, 1927. Dismissed with costs on motion of Mr. Joseph Larocque for plaintiff in error. No appearance for defendant in error. No. 152. Helene A. Kny, Sole Executrix of the ESTATE OF RlCHARD KnY, DECEASED V. THOMAS W. MlLLER, Alien Property Custodian, and Frank White, Treasurer of the United States. Appeal from the Court of Appeals of the District of Columbia. January 17, 1927. Dismissed with costs on motion of Messrs. Howard Ferris, Richard S. Doyle, and Dion S. Birney for appellant. The Attorney General for appellees. No. 153. Huron Navigation Corporation v. United States. Appeal from the Court of Claims. January 20, 1927. Dismissed per stipulation of counsel. Messrs. J. Harry Covington and Spencer Gordon for appellant. The Attorney General for the United States. No. 164. Fritz Schutte v. Howard Sutherland, Alien Property Custodian, et al. Appeal from the Court of Appeals of the District of Columbia. February 21, 1927. Decree reversed in part and affirmed in part, each party to pay his own costs, and the cause remanded to the Supreme Court of the District of Columbia for further proceedings per stipulation of counsel on motion of Solicitor General Mitchell in that behalf. Messrs. Alfred K. Nippert and John W. Peck for appellant. OCTOBER TERM, 1926. 779 273 U. S. Cases Disposed of Without Consideration by the Court. No. 235. Calogero Maniglia, by his next friend and father, Antonino Maniglia v. Commander of the S. S. “Guiseppe Verdi,” et al. Appeal from the District Court of the United States for the District of Massachusetts. February 21, 1927. Dismissed with costs per stipulation of counsel and mandate granted on motion of Solicitor General Mitchell in that behalf. Messrs. Clinton Robb and H. S. Avery for appellant. No. 345. St. Louis-San Francisco Railway Company v. State of Oklahoma et al. Certiorari to the Supreme Court of the State of Oklahoma. February 21,1927. Dismissed with costs on motion of Mr. Albert Rae Williams in behalf of Messrs. E. T. Miller, C. B. Stuart, J. F. Sharpe, M. K. Cruce, Ben Franklin, and T. P. Littlepage for petitioner. Messrs. George A. Henshaw and A. Carey Hough for respondents. No. 488. Chicago and North Western Railway Company v. Michigan Public Utilities Commission. Error to the Supreme Court of the State of Michigan. February 21,1927. Judgment reversed with costs, and the cause remanded to the said Supreme Court for further proceedings, per stipulation of cpunsel, on motion of Mr. Albert Rae Williams in behalf of Messrs. R. N. Van Doren and Nye F. Morehouse for plaintiff in error, and Mr. W. W. Potter for defendant in error. No. 165. Max Weksler v. Morgan G. Collins, Superintendent of Police, et al. Error to the Supreme Court of the State of Illinois. February 23, 1927. Dismissed with costs pursuant to the nineteenth rule, on motion of Mr. F. R. Gibbs in behalf of Messrs. Francis X. Busch, Oscar E. Carlstrom, and Leon Homstein for defendants in error. Mr. Charles Leviton for plaintiff in error. 780 OCTOBER TERM, 1926. Cases Disposed of Without Consideration by the Court. 273 U. S. No. 181. Leopold Zimmermann, Louis J. Rees, Maryan H. Hauser, et al., etc. v. Howard Sutherland, Alien Property Custodian, Frank White, Treasurer of the United States, et al.; and No. 182. Deutsche Bank of Berlin, Germany v. Leopold Zimmermann, Louis J. Rees, Maryan H. Hauser, et al. Appeals from the Circuit Court of Appeals for the Second Circuit. February 25, 1927. Dismissed with costs on motion of Messrs. Joseph M. Hartfield, Charles E. Hughes, Hamilton Vreeland, Jr., and Thomas P. Littlepage for appellants in No. 181 and appellees in No. 182. Messrs. Amos J. Peaslee and Thomas G. Haight for appellees in No. 181 and appellants in No. 182. _________ No. 813. Pressed Steel Car Company v. United States. Petition for writ of certiorari to the Court of Claims. February 28, 1927. Writ of certiorari granted. Judgment of the Court of Claims in so far as it determined that the petitioner is not entitled to recover any sum in this action of and from the United States, affirmed, and the judgment >of the Court of Claims in favor of the United States upon its counterclaim modified by reducing the amount thereof to the sum of $126,202.15, plus the sum of $1,775.34, the costs allowed by that court, and the cause forthwith remanded to the Court of Claims to proceed accordingly, per stipulation of counsel, on motion of Solicitor General Mitchell, in that behalf. Messrs. George A. King, William B. King, and George R. Shields for petitioner. No. 216. Ellamar Mining Company v. Alaska Steamship Company. Certiorari to the Circuit Court of Appeals for the Ninth Circuit. March 7, 1927. Dismissed with costs per stipulation of Messrs. George de Steiguer and John H. Powell for petitioner, and Messrs. W. H. Bogle and Lane Summers for respondent. OCTOBER TERM, 1926. 781 273 U. S. Cases Disposed of Without Consideration by the Court. No. 889. William A. Higgins and Edward S. Higgins, Copartners doing business under the firm name of William A. Higgins and Company v. California Prune and Apricot Growers, Inc. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit. March 7, 1927. Dismissed with costs per stipulation of counsel. Mr. Francis E. Neagle and Annette Abbott Adams for petitioners. No. 201. Florence L. Clay, Nora Webb, Wm Chandler, et al. v. City of Eustis. Appeal from the District Court of the United States for the Southern District of Florida. March 8, 1927. Dismissed with costs on motion of Mr. John E. Laskey in behalf of Messrs. James L. Fort and J. R. Bedgood for appellants. Mr. Alexander Akerman for appellee. , No. 219. George Lee Miller et al. v. Board of Public Works of the City of Los Angeles et al. Error to the Supreme Court of the State of California. March 10, 1927. Dismissed with costs pursuant to the 19th rule. Mr. William W. Bearman for plaintiffs in error. Messrs. Jess E. Stephens and Lucius P. Green for defendants in error. No. 259. Toxa way Mills v. United States. Certiorari to the Court of Claims. March 14, 1927. Judgment reversed on confession of error and mandate granted on motion of Solicitor General Mitchell for the United States. Messrs. James Craig Peacock and John W. Townsend for petitioner. 782 OCTOBER TERM, 1926. Cases Disposed of Without Consideration by the Court. 273 U. S. No. 262. United States v. Ed McMahon, Midwest Oil Company, and Southwest Oil Company. Certificate from the Circuit Court of Appeals for the Eighth Circuit. March 14, 1927. Certificate dismissed pursuant to stipulation of counsel on motion of Solicitor General Mitchell for the United States. Messrs. Tyson S. Dines, Peter H. Holme, and Harold D. Roberts for respondents. No. 44. Charles E. Ruthenberg v. State of Michigan. Error to the Supreme Court of the State of Michigan. March 14, 1927. Death of Charles E. Ruthenberg, plaintiff in error herein, suggested and writ of error dismissed with costs on motion of Messrs. Isaac E. Ferguson and Frank P. Walsh for plaintiff in error. Messrs. Andrew B. Dougherty, 0. L. Smith, George H. Bookwaiter, and Max F. Burger for defendant in error. No. 1038. Rafael Baragano v. Porto Rico. Error to the Supreme Court of Porto Rico. April 11, 1927. Docketed and dismissed with costs, on motion of Mr. William C. Rigby for defendant in error. No appearance for plaintiff in error. No. 277. Red Ball Transit Company v. Charles C. Marshall et al., Constituting the Public Utilities Commission of Ohio et al. Appeal from the District Court of the United States for the Southern District of Ohio. April 11, 1927. Dismissed with costs on motion of Messrs. George Hoadly and Benton S. Oppenheimer for appellant. Messrs. Albert M. Galland, C. C. Crabbe, and John W. Bricker for appellees. No. 676. T. L. Sparkman et al. v. W. T. Rawleigh Company. Error to the Supreme Court of the State of OCTOBER TERM, 1926. 783 273 U. S. Cases Disposed of Without Consideration by the Court. Oklahoma. April 11, 1927. Dismissed with costs pursuant to the Eleventh Rule. Mr. John B. Dudley for plaintiffs in error. No appearance for defendants in error. No. 922. Liberty National Bank of South Carolina, et al. v. J. W. McIntosh, Comptroller of the Currency of the United States et al. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit. April 11, 1927. Dismissed at petitioners’ cost per stipulation of Mr. D. W. Robinson for petitioners, and Messrs. R. B. Herbert and John K. Shields for respondents. AMENDMENT OF RULES. Order Entered January 24, 1927. It is now here ordered by this Court that section 7 of rule 29 of this Court be amended by striking therefrom the words “ten cents per folio of each one hundred words,” in the clause prescribing fees for preparing records, etc., and substituting the words “eight cents per folio of each one hundred words,” so that the entire clause will read: “For preparing the record or a transcript thereof for the printer, in all cases, including records presented with petitions for certiorari, indexing the same, supervising the printing, and distributing the printed copies to the justices, the reporter, the law library, and the parties or their counsel, eight cents per folio of each one hundred words; but where the necessary printed copies of the record as printed for the use of the court below are furnished, charges under this item will be limited to any additions printed here under the clerk’s supervision.” This order shall apply to causes filed here on or after February 1, 1927, but not to causes filed prior to that date. 42847°—27--50 ?85 INDEX. ABANDONMENT. See Trade Marks, 4. ABATEMENT AND SUBSTITUTION: Page. 1. Dissolution of Corporation. At common law, and by rule in federal courts, dissolution of corporation abates litigation in which it is necessary party. Okla. Gas. Co. v. Okla.257 2. Id. Substitution. Showing required. Id. 3. Id. Appearance of liquidating trustees on motion for. Id. ACCOUNTING. See United States, 2. ADMIRALTY: 1. Limited Liability. All claims adjudicable in rem and in personam when petition to limit liability denied. Hartford Ind. Co. v. Sou. Pac. Co...............................207 2. Id. Stipulation ad Interim, takes place of ship and freight. Stipulator must pay amount into court for application to claims and costs where prayer for limited liability denied. Id. 3. Harter Act. Barge and tug transporting merchandise constitute one “vessel.” Sac. Nav. Co. v. Saiz.........326 4. Id. Contract held of affreightment rather than towage and affreightment. Id. ADMISSIONS. See Aliens, 3. AFFIDAVIT. See Criminal Law, 5, 8-9. AGENCY. See Indians, 1. ALIEN PROPERTY CUSTODIAN. See Trading with the Enemy Act. ALIENS: 1. Immigration Proceeding. Effect of erroneous conclusion; or of admission of incompetent evidence. Vajtauer v. Commr............................................... 103 2. Id. Habeas Corpus. How far evidence reviewed. Id. 787 788 INDEX. ALIENS—Continued. Page 3. Id. Admissions and silence of alien as proof of identity and membership in excluded class. Id. 4. Id. Not unfair because of delay, absence of applicant’s friend or relative, if waived, or introduction of testimony taken by inspector, if not objected to. Quon Quon Poy v. Johnson........................................... 352 5. American Citizenship, of applicant for entry who has never resided in United States, determinable without judicial hearing. Id. AMENDMENT. See Jurisdiction, III, 12. ANTI-TRUST ACTS: 1. Clayton Act; Venue of Suit; Service. Suit brought in federal court in any district in which corporation transacts business; service in district in which it resides or is “ found.” Eastman Co. v. Sou. Photo Co.......................... 359 2. Id. What constitutes transaction of business. Id. 3. Id. Power of Congress to fix venue. Id. 4. Monopoly. Intent to perpetuate, in refusing to allow retailers’ discount, inferable from circumstances. Id. 5. Refusal to Allow Retailers’ Discount, not justified by contract of retailer to handle goods of competing maker, not known to monopolist. Id. 6. Lost Profits. How measured and proved. Id. 7. Price Fixing. Violates Sherman Law whether prices fixed reasonable or unreasonable. U. S. v. Trenton Co.......... 392 8. Conspiracy; overt acts, jurisdiction. Id. 9. Competition, existence of, how proved. Id. APPEARANCE. See Criminal Law, 7. ARREST. See Constitutional Law, II, 1,4; VI, 1; Jurisdiction, III, 8, 9; Jury, 4. ASSIGNMENT OF ERROR. See Procedure, 8. ATTACHMENT. See Constitutional Law, II, 4, 6. ATTORNEYS. See Indians, 1. Power of Court to require showing of authority to appear. Pueblo v. Fall....................................... 315 INDEX. 789 AUTOMOBILE. See Contracts, 4. BANKRUPTCY: Page. 1. Composition, with partnership creditors respecting only partnership debts, does not discharge partners from separate obligations as endorsers of partnership notes. Myers v. Trust Co...........................................380 2. Id. Personal liability of partner as endorser of firm note not released by creditor’s acceptance of his share of payment made under composition with firm. Id. BANKS. See National Banks. BILL OF LADING. See Interstate Commerce Acts, I, 1-3. BILL OF PARTICULARS. See Criminal Law, 10. BILLS AND NOTES. See Bankruptcy. BOUNDARY. See Procedure, 1. BRIEF. See Procedure, 8. BURDEN OF PROOF. See Constitutional Law, IX, (2), 4. CANCELLATION. See Claims, 2; United States. CARRIERS. See Constitutional Law, V, 1-4; IX, (2), 3, 4; Interstate Commerce Acts; Taxation, I, 3. CERTIFICATION. See Public Lands, 3. CERTIORARI. See Procedure, 3, 11. CITIZENS. See Aliens, 5. CLAIMS. See Admiralty, 1-2; Interstate Commerce Acts, I, 3; Railroads; Sales. 1. Dent Act, gave no cause of action on contracts made without authority, or on dealings short of contract. Reed’s Sons v. U. S...............................................200 2. Cancellation of Contract. Claims growing out of not affected by later agreement made without prejudice. Barrett Co. v. U. S......../.............................. 227 3. Id. Just Compensation, how measured. Id. 790 INDEX. CLAIMS—Continued. Page 4. Loss of Anticipated Profits, due to changes made by Government, not claimable where contract provides remedy by extension of time to perform. Davis Co. v. U.S.......... 325 5. Sale. Refusal of Government to accept goods; measure of damages. U. S. v. Burton Co........................ 337 CLAYTON ACT. See Anti-Trust Acts, 1-3. COMITY. See Public Utilities, 2. COMMISSIONER. See Procedure, 1. COMPENSATION. See Claims, 3. COMPETITION. See Anti-Trust Acts, 9; Evidence, 5. CONFLICT OF LAWS. See Trade Marks, 1-3. CONFORMITY ACT. See Jurisdiction, III, 11. CONSPIRACY. See Anti-Trust Acts, 8; Criminal Law, 1, 15-17. CONSTITUTIONAL LAW: I. In General, p. 790. II. Powers of Separate Houses of Congress, p. 790. III. Indians, p. 791. IV. Taxing Power, p. 791. V. Commerce Clause, p. 791. VI. Fourth Amendment, p. 792. VII. Fifth Amendment, p. 792. VIII. Sixth Amendment, p. 793. IX. Fourteenth Amendment, p. 793. Privileges and Immunities. See IX, infra. See Jurisdiction, II, (2), 2. I. In General. Construction. Provisions for security of person and property construed liberally. Byars v. U. S............ 28 II. Powers of Separate Houses of Congress. 1. Compelling Testimony in Aid of Legislation. Fact that the subpoena, and contumacy, related only to testimony INDEX. 791 CONSTITUTIONAL LAW—Continued. „ o Page. sought by committee, is not valid objection to resolution of the Senate, and warrant issued thereon, requiring defaulting witness to appear before bar of Senate itself, and give desired testimony. McGrain v. Daugherty............... 135 2. Id. Each house has not only powers expressly granted, but also such auxiliary powers as are necessary and appropriate to make the express powers effective; but neither is invested with “ general ” power to inquire into private affairs and compel disclosures. Id. 3. Id. Right of Witness, to refuse to answer where bounds of power are exceeded or questions not pertinent to matter under inquiry. Id. 4. Id. Resolutions of Senate ; presumption of valid purpose; subpoenas from Committee; attachment of contumacious witness; form of warrant; service by Deputy Sergeant at Arms. Id. 5. Id. Not valid objection to such investigation that it might diclose wrong-doing or crime by public officer named in the resolution. Id. 6. Id. Effect of expiration of Congress on outstanding attachment of witness. Id. 7. Id. Senate a continuing body. Id. III. Indians. Allotments. Power of Congress to remove restriction on alienation. Jones v. Oil Co............................. 195 IV. Taxing Power. 1. Federal Estate Tax. Constitutional and superior to anything to contrary in constitution or law of a State. Florida v. Mellon.............................................. 12 2. Uniformity. Satisfied when by provisions of tax law rule of liability under it is same in all parts of the United States. Id. V. Commerce Clause. 1. Bills of Lading. Regulatory power of Congress. Mo. Pac. R. R. v. Porter................................... 341 2. State Highways. Power of state to regulate use. Int. Busses Corp. v. Holyoke Ry............................. 45 3. Id. Motor Buses. Regulation of consistent with interstate commerce. Id. 792 INDEX. CONSTITUTIONAL LAW—Continued. Page 4. Id. Evasion of State Power, by unnecessarily using same vehicles for intra and interstate passengers, not permissible. Id. 5. Sale of Steamship Tickets, for foreign voyages, can not be regulated by state to prevent fraud. Di Santo v. Penna.. 34 6. Sale of Electricity, delivered at state line for use in another state, interstate commerce, and price not subject to regulation by state in which current generated by public service company selling it. Pub. Util. Comm. v. Attleboro Co. 83 VI. Fourth Amendment. 1. Void Warrant. Arrest for federal crime, unlawful where affidavits made before notary public empowered only by state law. Albrecht v. U. S............................. 1 2. State Search Warrant, for liquor wont sustain federal search of house and seizure of counterfeit revenue stamps. Byars v. U. S.........i....^.......................... 28 3. Id. Effect of participation by federal with state officers in search. Id. 4. Id. Results of search not admissible in evidence. Id. 5. Seizure under Search Warrant. Intoxicating liquor seized as sample, properly used in evidence, though officers contemporaneously destroyed remainder of liquor on searched premises, and were civilly liable as trespassers ab initio. McGuire v. U. S.......................................... 95 VII. Fifth Amendment. See VI, 5, supra; IX, 13, Infra; Jury, 5. 1. Punishment for Distinct Offenses of possessing and selling same liquor, under Prohibition Act, not double. Albrecht v.U.S................................................ 1 2. Immigration Proceeding. Mere error in decision, or use of incompetent evidence, not want of due process. Vajtauer v. Commissioner...................................... 103 3. Self Incrimination. Silence of alien in deportation proceeding evidence against him. Id. 4. Id. Privilege against self incrimination may be waived. Id. 5. American Citizenship. Claim of applicant that he is a citizen of the United States deterimanble by immigration authorities. Quon Quon Poy v. Johnson........................ 353 INDEX. 793 CONSTITUTIONAL LAW—Continued. Page< 6. Regulation of Private Schools. Fundamental rights of owners, parents, and children, protected by Fifth Amendment against invasion by territorial legislation to same extent as by Fourteenth Amendment in case of state legislation. Farrington v. Tokushige...............................284 7. Prima Facie Evidence. Making valuation of railroad property by the Interstate Commerce Commission prima facie evidence in proceedings before it and in the courts, does not violate due process clause. U. S. v. Los Angeles R.R.....................................................299 VIII. Sixth Amendment. Indictment, sufficiency of. Wong Tai v. U.S................. 77 IX. Fourteenth Amendment. See VII, 6, supra. (1) General. 1. State Action, what is. Hayman v. Galveston..............414 (2) Due Process Clause. 2. Statute Excluding Negroes from primary election, void. Nixon v. Herndon........................................... 536 3. Carriers by Motor Bus, over state highways, regulation of by state consistent with due process clause. Int. Busses Corp. v. Holyoke Ry....................................... 45 4. Burden of Proof, to establish facts showing unconstitutionality. Id. 5. Notice of an application of a mother to be appointed guardian of the estate of her child, an infant under twelve in the mother’s custody, not required by Fourteenth Amendment. Jones v. Prairie Oil Co.............................. 195 6. Guardian’s Lease. State statute permitting guardian to make oil and gas leases lasting beyond minority of ward, valid. Id. 7. Id. State statute governing procedure for leasing ward’s real estate is to be taken as construed by the state courts, even when such construction supplants earlier one relied on as rule of property. Id. 8. Judgment not lacking in due process because erroneous, if within jurisdiction and not evasive. Amer. Ry. Exp. Co. v. Kentucky ............................................... 269 794 INDEX. CONSTITUTIONAL LAW—Continued. Page< 9. Corporation Debts. When successor corporation may be required by state to pay, though debtor corporation still exists and has assets in another state. Id. Amer. Ry. Exp. Co. v. Royster Co...............................274 10. Foreign Corporations. Service of Process, upon agent required or designated by state where corporation has withdrawn leaving local debts. Id. 11. Statutory Fraud may include false promise of conduct inducing contract concerning real estate or corporate stock. James-Dickinson Co. v. Harry.............................. 119 12. Presumptive Evidence and Burden of Proof. Power of state to prescribe. Id. 13. Statutory Price Fixing, unconstitutional under Fifth and Fourteenth Amendments where business not affected with a public interest. Tyson & Bro. v. Banton....................418 14. “Affected with a Public Interest.” Genesis and meaning of expression. Id. 15. Id. Legislative Declaration not conclusive. Id. 16. Ticket Brokers. Price at which they may resell tickets purchased from licensed theaters can not be limited by legislature. Id. 17. State Taxation. Uniformity not required, duplication not forbidden. Swiss Oil Corp. v. Shanks...................407 18. Interested Judge. Trial for violations of state prohibition law before village mayor dependent for fees on fines by which also the village profits, is not due process. Tumey v. Ohio ....i............................................. 510 19. Frivolous Questions, whether accused deprived of due process by charge concerning self defense, and by being kept in custody. Kelley v. Oregon.............................. 589 20. Id. Whether convict committing murder during imprisonment entitled to serve out term before being hanged. Id. 21. Osteopathic Physician, not deprived of rights under Fourteenth Amendment by exclusion from practice in state hospital. Hayman v. Galveston.................................414 (3) Equal Protection of the Laws. See IX, 2, 21, supra. 22. Statute Defining Fraud, in purchases of real estate or corporate stock not unconstitutional because not embracing other cases. James-Dickinson Co. v. Harry................. 119 INDEX. 79Ô CONSTITUTIONAL LAW—Continued. Page. 23. Franchise Tax, measured by percentage of production, imposed on oil companies only, in addition to property tax, valid. Swiss Oil Corp. v. Shanks................... 408 CONSTRUCTION. See Statutes. CONTRACTS. See Admiralty, 4; Claims, 1, 2, 4; Constitutional Law, IX, (2), 11. 1. Infants. Not estopped to disaffirm contract induced by fraudulent misrepresentation of his age. Myers v. Hurley Co.................................................. 18 2. Id. Recoupment. Allowed from recovery by infant in action for money had and received. Id. 3. Id. Money Had and Received—equitable principles apply in. Id. 4. Id. Sale, of automobile to infant; remedy of vendor. Id. 5. Sale—measure of damages where buyer refuses to accept delivery. U. S. v. Burton Co........................ . i. 337 6. Equitable Mortgage. Contract involving deed of land to lender of money, lease to borrower for rentals amounting to debt, with right in latter to reconveyance only upon full repayment. U. S. v. Shelby Co. 571 7. Recitals, referring to another contract, when not notice to party to the one of contents of the other. Id. CONVICTS. See Constitutional Law, IX, (2), 20. CORPORATIONS. See Abatement and Substitution; Constitutional Law, IX, (2), 11; Jurisdiction, I, 2, 3; Trading with Enemy Act, 1. 1. Stamp Tax, on stock transfers. Goodyear Co. v. U.S... 100 2. Charter. Determines par value of shares at time of transfer. Id. 3. Ownership of Stock. Presumed in registered owner. Gt. Nor. Ry. v. Sutherland................................. 182 4. Service of Process, on foreign corporation which has withdrawn leaving local debts. Amer. Ry. Exp. Co. v. Royster Co............................................... 274 COSTS. See Admiralty, 2; Procedure, 1. COUNTERFEITING. See Constitutional Law, VI, 2. 796 INDEX. COURT OF CLAIMS. See Jurisdiction, II, (4). COURTS. See Constitutional Law, IX, (2), 18. Page. CRIMINAL LAW. See Constitutional Law, IX, (2), 19, 20; Jury, 4, 5. 1. Indictment for Conspiracy. Need not allege with precision all elements of offense conspired to be committed. Wong Tai v. U.S.................................................... 77 2. Surplusage in Indictment; Amendment; Duplicity. See Ford v. U. S................................................. 593 3. Information. Leave of court requisite to filing by United States Attorney. Albrecht v. U. S.............................. 1 4. Id. Official oath sufficient. Id. 5. Id. Validity of not affected by use of void affidavits as basis of warrant. Id. 6. Warrant. Waiver of irregularity in. Id. 7. Bail Bond. Giving of not general appearance or waiver of invalidity of warrant. Id. 8. Motion to Quash, for void affidavits, directed to warrant, not to information. Id. 9. Id. Too late when defendant already in court and affidavits amended. Id. 10. Bill of Particulars. Application for addressed to sound discretion. Wong Tai v. U. S.................................. 77 11. Plea to Jurisdiction. Necessary, to raise objection that defendants were unlawfully arrested beyond jurisdiction and forcibly brought in. Ford v. U. S.............................593 12. Perjury Statute. Not affected by Revenue Act, 1918, penalizing attempts to defeat or evade income tax. U. S. v. Noveck.................................................... 202 13. Double Punishment for Distinct Offenses. Possessing and selling same liquor, under Prohibition Act, not double. Albrecht v. U. S................................................. 1 14. Sentence. Valid as to one count not affected by error under other on which it runs concurrently. U. S. v. Trenton Co....................................................... 392 15. Conspiracy and Overt Acts; jurisdiction and venue, under Sherman Law. Id. 16. Id. To import liquor in violation of Prohibition and Tariff Acts, committed by persons on British ships seized INDEX. 797 CRIMINAL LAW—Continued. x age. on high seas and others in this country, overt acts being committed here. Ford v. U. S............ f.............. 3. 593 17. Id. Absent Party. Guilty of conspiracy though never in this country. Id. 18. Smuggling, under Tariff Act 1923, by bringing in concealed dutiable goods after waiver of inspection at international boundary procured by false representations. * U. S. v. Ritter man ...................................... 261 19. Id. Repentance or confession on eve of discovery does not purge offense. Id. CUMMINS AMENDMENT. See Interstate Commerce Acts, I, 4. CUSTOMS. See Criminal Law, 18-19. DAMAGES. See Claims; Contracts; Interstate Commerce Acts, I, 1-3. 1. Measurement. Sufficient if reasonable basis of computation afforded, although result only approximate. Eastman Co. v. Sou. Photo Co................................... 359 2. Id. Rule less strict, when party’s wrongful conduct has rendered precise ascertainment difficult. Id. 3. Lost Profits, due to monopoly and refusal of manufacturer to sell at retailers’ discounts—how proved and measured in suit under Clayton Act. Id. DECLARATORY JUDGMENTS. See Jurisdiction, I, 1. DEEDS: Reformation. See U. S. v. Shelby Co.................... 571 DEMAND. See Trading with Enemy Act, 1. DENT ACT. See Claims, 1. DISAFFIRMANCE. See Contracts, 1. DISTRAINT. See Taxation, I, 5. ELECTIONS: 1. Denial of Vote, to qualified voter, by judges in primary election renders judges liable in damages. Nixon v. Herndon............................................... 536 2. Statute Excluding Negroes, void. Id. 798 INDEX. ELECTRICITY. See Constitutional Law, V, 6. EMBEZZLEMENT. See Post Office. EQUITABLE MORTGAGE. See Contracts, 6. Page EQUITY. See Contracts, 3; Interstate Commerce Acts, II, 2; Jurisdiction, III, 1-4, 12; Mortgages; United States. ESTATE TAX. See Taxation, I, 4. ESTOPPEL. See Bankruptcy; Trade Marks, 5. EVIDENCE. See Aliens, 1-4; Constitutional Law, II, 1, 3; VI, 4-5; VII, 2-3; IX, (2), 4, 12; Indians, 1; Interstate Commerce Acts, II, 3; Jury. 1. Admissions and Silence, of alien in deportation proceedings. Vajtauer v. Commr............................. 104 2. Identity. Evidence of in deportation proceedings. Id. 3. New Trial. When not allowed for erroneous admission of evidence. U. S. v. Trenton Co...................... 392 4. Discrediting Witness, in cross and on redirect examinations. Id. 5. Competition. Not provable by conclusion of witness. Id. EXCEPTIONS. See Procedure, 9. EXPRESS COMPANIES: See Amer. Exp. Co. v. Ky............................. 269 Amer. Exp. Co. v. Royster Co...................... 274 EXPRESSIO UNIUS: See Ford v. U. S....................................... 593 FACTS. See Jury, 4 FEDERAL QUESTION. See Jurisdiction, II, (3), 3; II, (5), 2, 3; Procedure, 2-4. FEDERAL TRADE COMMISSION ACT: 1. Price-fixing Agreements, unlawful. Fed. Trade Comm. v. Paper Assn ............................................ 52 2. Interstate Shipments, where goods sent retailer from outside state on wholesale order. Id. INDEX. 799 FINDINGS. See Jurisdiction, II, (4); Procedure, 5-7. FLORIDA. See Public Lands. FORECLOSURE. See Mortgages, 1. FOREIGN COMMERCE. See Constitutional Law, V, 5. Page. FRAUD. See Constitutional Law, V, 5; Contracts, 1; Navy, 1; Public Lands, 3; Procedure, 7; Unfair Competition; United States. 1. Benefit, to maker of false statement, not essential. James-Dickinson Co. v. Harry................................ 119 2. Promissory Representation. Power of state to make actionable. Id. 3. Statutory Fraud. Validity of statute not impaired by confinement to limited class of cases. Id. 4. Id. Exemplary Damages. Allowance of does not make statute penal. Id. GUARDIAN AND WARD: 1. Notice, of application of mother to be appointed guardian of estate of her infant under twelve, not required by Fourteenth Amendment. Jones v. Oil Co..................... 195 2. Id. Clerical Error, in posted notice, when immaterial. Id. 3. Lease. State statute permitting guardian to make oil and gas leases lasting beyond minority of ward, not unconstitutional. Id. 4. Id. Statute governing procedure for leasing ward’s real estate taken by this Court as construed by state courts, even when such construction supplants earlier one relied on as rule of property. Id. HABEAS CORPUS: 1. Alien Held for Deportation. Extent to which proceedings reviewable. Vajtauer v. Commr........................ 103 2. Petition, based solely on right of petitioner, cannot be maintained on the right of another. Quon Quon Poy v. Johnson ..........................................ei...t. 352 HIGH SEAS. See International Law; Jurisdiction, III, 8, 9. HIGHWAYS. See Constitutional Law, V, 2-4; IX, (2), 3. 800 INDEX. IDENTITY. See Aliens, 3. IMMIGRATION. See Aliens, 4. IMPRISONMENT. See Constitutional Law, IX, (2), 19-20. INDIANS. See Guardian and Ward. Page. 1. Grant of Land and Power of Attorney, executed for Indian Pueblo by captain, clear proof required to sustain. Pueblo v. Fall315 2. Sections 2103 and 2116 Rev. Stats., forbidding or condi tioning. agreements with Indians respecting lands, apply to Pueblos as to nomadic tribes. Id. 3. Lease. Congress has power to remove restriction against alienation of patented homestead allotment of minor Creek Indian. Jones v. Oil Co................................ 195 4. Id. Power of guardian to make oil and gas leases of Creek minor’s homestead extending beyond minority. Id. INDICTMENT. See Criminal Law, 1-2. INFANTS. See Contracts, 1-4. INFORMATION. See Criminal Law, 3-5. INHERITANCE TAX. See Constitutional Law, IV, 1; Taxation, I, 4. INJUNCTION. See Interstate Commerce Acts, II, 2; Jurisdiction, III, 1-4; Public Utilities. 1. Preliminary Injunction. Properly issued where regulatory legislation as whole apparently infringes constitutional rights, without determining validity of separable provisions. Farrington v. Tokushige................................... 284 2. Court of Three Judges. Not required unless application for interlocutory injunction pressed. Smith v. Wilson.388 INSURANCE: Building Contract. Insurance against public liability under. Ley & Co. v. U. S................................. 386 INSTRUCTIONS. See Jury, 1-3. INDEX. 801 INTERNAL REVENUE. See Constitutional Law, VI, 2; Taxation. INTERNATIONAL LAW. See Trade Marks, 1-3. Page 1. Treaty with Great Britain, May 22, 1924, allowing search and seizure of British ships within certain limits beyond three-mile line, where illegal importations of liquor attempted, allows persons aboard, as well as ship and cargo, to be brought in for trial. Ford v. U. S593 2. Liability of Absentee, for participation in criminal conspiracy. Id. INTERSTATE COMMERCE ACTS. See Constitutional Law, V, 6; Federal Trade Commission Act, 2. I. Carrier and Shipper. 1. Bills of Lading. Duty of carrier to make and enforce just regulations as to, applies to shipments interstate over land for delivery for ocean carriage abroad. Mo. Pac. R. R. v. Porter ............................................... 341 2. Id. Stipulations of Value. State law forbidding is invalid as applied to such shipments. Id. 3. Limitation of Suit, in bill of lading, void under Transportation Act, when less than two years from written notice of carrier’s disallowance of claim for damage or loss of goods. La. & West. R. R. v. Gardiner............................280 4. Id. Neither Cummins Amendment nor Transportation Act operates of itself as statute of limitations. Id. 5. State Statutes. Applicable in absence of federal limitation. Id. II. Powers and Proceedings of Commission. 1. Valuation of Carrier’s Property, under § 19a of amended Commerce Act, not an “ order ” reviewable by suit against United States under Act of 1913. U. S. v. Los Angeles R. R. 299 2. Id. Suit to Enjoin Use of, not maintainable under Act of 1913, or under general equity powers of District Court. Id. 3. Id. Prima Facie Evidence. Making valuation such is consistent with Fifth Amendment. Id. INTOXICATING LIQUOR. See Constitutional Law, VI, 5; IX, (2), 18. JUDGE. See Constitutional Law, IX, (2), 18. 42847°—27----51 802 INDEX. Page. JUDGMENT. See Constitutional Law, IX, (2), 8; Jurisdiction, I, 1; Procedure, 10. Unauthorized Attorney. Suit dismissed without prejudice. Pueblo v. Fall..............................................315 JURISDICTION: I. Generally, p. 802. II. Jurisdiction of this Court: (1) Generally, p. 803. (2) Original, p. 803. (3) Over District Court, p. 803. (4) Over Court of Claims, p. 803. (5) Over Supreme Court, Philippine Islands, p. 803. (6) Over State Courts, p. 804. III. Jurisdiction of District Court, p. 804. See Abatement and Substitution, 1; Constitutional Law, IX, (2), 8; Injunction, 2; Jury, 3; Procedure. Jurisdiction of Circuit Court of Appeals over District Court, see III, 3, infra. Case or Controversy. See I, 1; II, (2), 1. Certiorari. See II, (5); II, (6), 1. Federal and Local Questions. See II, (3), 3, 4; II, (6), 2-5. Injunction. See III, 1-4. Law and Equity. See III, 12. Moot Case. See II, (1). Transferred Cause. See II, (3), 2. Venue. See III, 5, 6. I. Generally. 1. Case or Controversy. Federal jurisdiction not extended to securing declaratory judgment under state law, concerning construction and validity of statute, where nothing done or threatened under it. Liberty Co. v. Grannis.............. 70 2. Service of Process, on officer of foreign corporation having no local business or agent, invalid. James-Dickinson Co. v. Harry................................................. 119 3. Id. Service of process on agent of foreign corporation, or on official designated by state. Amer. Ry. Exp. Co. v. Royster Co................................................274 INDEX. 803 JURISDICTION—Continued. Page 4. Attorneys. Power of court to require showing of authority to appear exists at every stage of case. Pueblo v. Fall.. 315 5. Interest of Judge, voids trial. Tumey v. Ohio... 510 6. Exhaustion of State Remedies by public utility before seeking injunction in federal court against confiscatory rate, mere rule of comity, not applied where plaintiff might be estopped by state judgment. R. R. & Whse Comm. v. Dur luth Street Ry............................................. 625 See Parties. # II. Jurisdiction of this Court. (1) Generally. Moot Case. Case involving attachment of contumacious witness by Senate not made moot by expiration of Congress. McGrain v. Daugherty....................................... 135 (2) Original. 1. Case or Controversy. To come within original jurisdiction of this Court, suit by a State must be for redress of wrong, or enforcement of a right, susceptible of judicial redress or enforcement. Florida v. Mellon....................... 12 2. Parens Patriae. State cannot represent her citizens in suit to protect them from inequalities due to federal tax law. Id. (3) Over District Court. 1. Direct Appeal, to this Court under Jud. Code, § 238, where constitutional question sole basis of original jurisdiction. Waggoner Estate v. Wichita County.................... 113 2. Id. Transfer, when case taken erroneously to Circuit Court of Appeals. Id. 3. Id. Scope of Review—state and federal questions. Id. 4. Local Question. Real or personal character of royalty interest in oil and gas lease. Id. (4) Over Court of Claims. Findings. Not reviewable by this Court. Ley & Co. v. U. S........................................................386 (5) Over Supreme Court, Philippine Islands. Certiorari. Review by in casg involving provisions of Philippine Code of Civil Procedure and of Trading with Enemy Act. Ingenohl v. Olsen & Co........................... 541 804 INDEX. JURISDICTION—Continued. (6) Over State Courts. Page. 1. Certiorari. Cause held reviewable by. L. & W. R. R. v. Gardiner............................................. 280 2. Federal Question. Not present where state statute attacked not factor in decision of state court. Swiss Oil Corp. v. Shanks.............................................. 407 3. Id. Grounds of decision involving, cannot be assumed, when not shown by opinion or record. Amer. Ry. Exp. Co. v. Kentucky..........•................................. 269 4. Local Questions. Decisions of state courts binding. Id. 5. Scope of Review. Local Question. Statutes enacted since decision below construable here; or may be referred back by reversing and remanding judgment. Missouri ex rd. v. Pub. Ser. Comm......................................... 126 6. Frivolous Questions. Whether accused deprived of due process by charge concerning self defense, and by being kept in custody. Kelley v. Oregon...................... 589 7. Id. Whether convict committing murder during imprisonment entitled to serve out term before being hanged. Id. 8. Findings, as to competition with national bank of moneyed capital favored by state in taxation, reviewable by this Court. First Nat. Bank v. Hartford..................... 548 9. Id. Finding accepted when evidence conflicting. Georgetown Bank v. McFarland..................................568 III. Jurisdiction of District Court. 1. Injunction. Suit against United States to enjoin use of final valuation of railroad’s property by Interstate Commerce Commission, not permissible under Act of 1913, or general equity powers. U. S. v. Los Angeles R. R............... 299 2. Id. Jud. Code, § 266. Three Judges, not required when application for interlocutory injunction not pressed. Smith v. Wilson.............................................. 388 3. Id. Final Hearing, when before single judge, and reviewable in this Court or Circuit Court of Appeals. Id. 4. Id. Quaere whether three judges proper. Id. 5. Venue and Service of Process, in suit for damages under § 12, Clayton Act. Eastman Co. v. Southern Photo Co.... 359 6. Id. “Transacting Business.” Definition. Id. INDEX. 805 JURISDICTION—Continued. 7. Sherman Law. Jurisdiction and venue under, how affected by overt acts. U. S. v. Trenton Potteries........392 8. Jurisdiction over Defendant. Where jurisdiction of offense charged exists, question whether defendants were wrongfully brought into court’s custody through unlawful seizure on high seas must be raised by plea to jurisdiction over their persons and is waived by plea of not guilty. Ford v. U.S.. 593 9. Id. Persons brought from beyond 3 mile limit, under British Treaty, may be prosecuted for illegal importation of liquor and also conspiracy to commit that offense, where overt acts include actual importation and attempts. Id. 10. Admiralty. Limitation of Liability. Jurisdiction to adjudicate all claims where prayer to limit liability denied. Hartford Co. v. Sou. Pac. Co............................207 11. Conformity Act, relates only to practice, etc., and can not extend jurisdiction beyond constitutional limits. Liberty Whse Co. v. Grannis............................... 70 12. Law and Equity. Jud. Code, § 274a, allowing amendments to pleadings, inapplicable to enlarge jurisdiction of court. Id. 13. Statutory Fraud; Exemplary Damages. Not Penal Law, and cause enforceable in District Court in another State. James-Dickinson Co. v. Harry........................... 119 JURY. See Procedure, 9. 1. Instructions. Valid otherwise, not affected by erroneous theory of judge not expressed. U. S. v. Trenton Potteries.. 392 2. Id. Request to Charge, refused when substantial repetition of instructions given. Id. 3. Id. Venue, failure to instruct as to not error in absence of request and of dispute over jurisdictional facts. Id. 4. Facts Determinable by Court. Admissibility in criminal case of evidence of seizure of property and persons; questions of fact affecting the legality of the seizure are decided by the court without the jury. Ford v. U. S............. 593 5. Presence of Accused. Written instructions not to be sent jury after retirement, without notice to defendant or counsel. Shields v. U. S.................................... 583 LACHES. See Trade Marks, 5. LAND GRANTS. See Railroads. 806 INDEX. LEASE. Page. Oil and Gas. Royalty interest of lessor properly taxed as real property. Waggoner v. Wichita................ 113 See Guardian and Ward, 3-4; Indians, 3-4. LICENSE. See Patents for Inventions; Theaters. LIMITATIONS. See Interstate Commerce Acts, I, 3-4; Taxation, I, 5. LIMITED LIABILITY. See Admiralty, 1-2. LOCAL LAW. See Jurisdiction, II, (6), 4r-5; Procedure, 4. MINERAL LAND. See Public Lands, 2. MISTAKE. See Trade Marks, 3. MONEY ORDERS. See Post Office. MONOPOLY. See Anti-Trust Acts, 4. MORTGAGES. See Contracts, 6. 1. Equitable Mortgage. Foreclosure or reformation. U. S. v. Shelby Co...................................... 571 2. Power to Mortgage. Id. 3. Priorities. Id. MOTION TO QUASH. See Criminal Law, 8-9. MOTOR BUSES. See Constitutional Law, V, 3; IX, (2), 3. MURDER. See Constitutional Law, IX, (2), 20. NATIONAL BANKS. See Jurisdiction, II, (6), 8. 1. Discriminatory State Tax. What are “ moneyed capital ” and “ competition ” with national banks, within Rev. Stats. § 5219. Bank v. Hartford................................ 548 Minn. v. Bank............................................ 561 Bank v. McFdrland........................................ 568 2. Id. Favored capital must be engaged in investments open to national banks. Bank v. Hartford..................... 548 3. Id. Motive of discrimination immaterial. Id. 4. Id. Taxation authorized, against holders of shares, measured by their value, not by bank’s net assets. Minn. v. Bank..................................................... INDEX. 807 NATIONAL BANKS—Continued. 5. Id. Tax at greater rate on bank shares not excused by removal of discrimination in practice by allowing deduction of liabilities in case of bank and not in case of competing individuals. Id. 6. Incidental Powers. Sale of real estate, mortgages, and other evidence of debt acquired by loan or discount with view to reinvestment. Bank v. Hartford................. 548 NAVY: 1. Petroleum Reserves. Leases and contracts respecting held fraudulent and unlawful. Pan Amer. Co. v. U. S........... 456 2. Storage Facilities, for naval reserve petroleum not authorized by Act of June 4, 1920, beyond appropriation made thereby. Id. NEGROES. See Elections. NEW TRIAL. See Evidence, 3. NOTARY PUBLIC. See Constitutional Law, VI, 1. NOTICE. See Contracts, 7; Guardian and Ward, 1-2. OATH. See Constitutional Law, VI, 1; Criminal Law, 4. OFFICERS. See Constitutional Law, VI, 5; United States, 1. OIL AND GAS. See Constitutional Law, IX, (3), 23; Guard- ian and Ward, 3; Lease. OKLAHOMA. See Procedure, 1. OVERT ACTS. See Anti-Trust Acts, 8; Jurisdiction, III, 7-9. PARCEL POST. See Post Office. PARENS PATRIAE. See Jurisdiction, II, (2), 2. PARTIES. See Abatement and Substitution, 1; Criminal Law, 17; Procedure, 10. Where city and public utility both have right of appeal to state court from rate order of state commission, city cannot object to inclusion in injunction suit by the company in federal court upon ground of being deprived thereby of state court remedy. R. R. Comm. v. Duluth Ry...................«625 808 INDEX. PARTNERSHIP. See Bankruptcy. PAR VALUE. See Corporations, 2; Taxation, I, 1, 2. PATENTS FOR INVENTIONS: Page. Implied License, as defense to infringement suit. De Forest Co. v. U.S...........................................236 PAYMENT. See Bankruptcy, 2. PENAL LAW. See Jurisdiction, III, 13. PERJURY. See Criminal Law, 12. PETROLEUM RESERVES. See Navy. PHYSICIANS. See Constitutional Law, IX, (2), 21. PHILIPPINE ISLANDS. See Jurisdiction, II, (5); Trade Marks, 3. PLEA. See Jurisdiction, III, 8. PLEADINGS. See Jurisdiction, III, 12. POST OFFICE: Moneys Collected, by post office official under Act Aug. 24, 1912, upon C. O. D. parcels, and held by him for’use in purchasing money orders to be sent to senders of the parcels, not “money order funds,” within Rev. Stats. § 4045, nor “public money,” within § 3846. Smyer v. U. S.......... 333 POWERS. See Mortgages, 2. PRESUMPTIONS. See Corporations, 3. PRICE REGULATION. See Constitutional Law, V, 6. PRICES. See Anti-Trust Acts, 7; Federal Trade Commission Act, 1. PRIORITIES. See Mortgages, 3. PRIVILEGE. See Aliens, 3; Constitutional Law, VII, 4. PROCEDURE IN THIS COURT. See Jurisdiction. For other matters relating to Procedure, See: Abatement and Substitution; Admiralty; Aliens; Anti-Trust Acts; ’Claims; Contracts; Corporations; Criminal Law; Damages; INDEX. 809 PROCEDURE—Continued. Page Evidence; Fraud; Guardian and Ward; Habeas Corpus; Indians; Injunction; Interstate Commerce Acts, II; Judgment; Parties; Public Utilities; Trade Marks. 1. Boundary Case. Decree declaring part of boundary between Texas and Oklahoma; appointing and instructing commissioner to survey and mark it; with provisions as to costs. Oklahoma v. Texas.............................. 93 2. Scope of Review. Federal and State questions. Waggoner Estate v. Wichita County......................... 114 3. Id. Respondent in certiorari not entitled to attack judgment below. Fed. Trade Comm. v. Pac. Paper Assn.. 53 4. Id. Local question. Statutes enacted since decision below construable here; or may be referred back by reversing and remanding of judgment. Missouri ex rel. v. Pub. Ser. Comm ................................................ 126 5. Findings, as to competition with national banks of moneyed capital favored by state in taxation reviewable by this Court. First Nat. Bank v. Hartford..............548 6. Id. Finding accepted when evidence conflicting. Georgetown Bank v. McFarland............................... 568 7. Findings of Fraud, not disturbed, if not clearly erroneous, when concurred in by two lower courts. Charleston Min. Co. v. U. S220 8. Assignments of Error, necessary to sustain objection in brief. Wong Tai v. U. S............................... 77 9. Exceptions, necessary to review of error in charging jury. Id. 10. Judgment Nunc pro Tunc, in case of death of party after submission. Quon Quon Poy v. Johnson................. 352 11. Disposition of Case. Decision contemporaneously with grant of certiorari. Shields v. U. S........... 583 PROCESS. See Anti-Trust Acts, 1; Corporations, 4; Jurisdiction, I, 2. PROFITS. See Anti-Trust Acts, 6; Claims, 4. PROHIBITION ACT. See Constitutional Law, IX, (2), 18; Criminal Law, 13. 810 INDEX. Page. PROPERTY. See Constitutional Law, IX, (2), 13; Guardian and Ward; Theatres. PUBLIC LANDS. See United States. Land Grant Rates. See Railroads. 1. Indemnity School Land. Grant of 1845 to Florida not self executing. Charleston Co. v. U. S................... 220 2. Id. Mineral Land. Not selectable under Rev. Stats. §§ 2275-6. Id. 3. Id. Fraudulent Selection. Certification of voidable by United States. Id. PUBLIC MONEY. See Post Office. PUBLIC UTILITIES. See Constitutional Law, V, 6. 1. Exhaustion of State Remedies. When not necessary preliminary to suit in federal court to enjoin confiscatory rates. R. R. Comm. v. Duluth Ry............................. 625 2. Id. Requirement that state remedy be first exhausted not principle of substantive law but rule of comity or convenience. Id. 3. Joinder, of city in suit against state commission. Id. RAILROADS. See Taxation, I, 3. 1. Land Grant Deduction, made for government troops from reduced party rates offered public. L. & N. R. R. v. U. S.. 321 2. Id. Applies where government transportation request issued carrier instead of cash in advance. Id. RATES. See Railroads. REAL PROPERTY. See Constitutional Law, IX, (2), 11; Guardian and Ward, 4; Indians, 2-4; Lease. RECITALS. See Contracts, 7. RECOUPMENT. See Contracts, 2. REFORMATION. See U. S. v. Shelby Co................................ 571 RENTALS. See Contracts, 6. RETROACTIVE DECISIONS. See Guardian and Ward, 4. INDEX. 811 RULE OF PROPERTY. See Guardian and Ward, 4. Page. SALES. See Anti-Trust Acts, 4-5; Constitutional Law, V, 6; Contracts, 4-5; Theatres, 2. Warranty. Not predicable on description in advertisement of government sale, where bidders required to inspect goods before bidding. Maguire Co. v. U. S.................. 67 SCHOOL LAND. See Public Lands, 1. SCHOOLS: Excessive Regulation. See Farrington v. Tokushige....284 SEARCH WARRANT. See Constitutional Law, VI, 2-5. SEIZURE. See Constitutional Law, VI, 5; Jurisdiction, III, 8; Jury, 4; Trading with Enemy Act, 1. SELECTION. See Public Lands, 3. SELF INCRIMINATION. See Aliens, 3; Constitutional Law, VII, 3-4. SENATE. See Constitutional Law, II. SENTENCE. See Criminal Law, 14. SERGEANT AT ARMS. See Constitutional Law, II, 4. SERVICE. See Anti-Trust Acts, 1; Corporations, 4; Jurisdiction, I, 2-3. SILENCE. See Aliens, 3; Constitutional Law, VII, 3. SMUGGLING. See Criminal Law, 18-19. STAMPS. See Constitutional Law, VI, 2. STATES. See Constitutional Law, IV, 1; V, 2, 5, 6; Jurisdiction, II, (2); Procedure, 1. STATUTES. See Expressio Unius. Strict Construction, consistent with full meaning or more ex- tended of two meanings. Nav. Co. v. Saiz................ 326 STEAMSHIP TICKETS. See Constitutional Law, V, 5. 812 INDEX. Page. STOCK. See Corporations, 1-3; Taxation, I, 1-2; Trading with Enemy Act, 1. SUBPOENA. See Constitutional Law, IT, 1, 4. SUBSTITUTION. See Abatement and Substitution, 2. SUPREME LAW. See Constitutional Law, IV, 1. SURETY. See Admiralty, 1; Post Office. TARIFF ACTS. See Criminal Law, 16, 18. TAXATION. See Constitutional Law, IV; IX, (2), 17; IX, (3), 23; Criminal Law, 12; Jurisdiction, II, (2), 2; National Banks, 1-5. I. Federal Taxation. L Stamp Tax on Stock Transfer. Face value means par value. Goodyear Co. v. U. S............................. 100 2. Id. Par value fixed by corporate charter at time of transfer controls over other value stated on certificate. Id. 3. Tax on Telegraph Messages, applies to those sent by railway under exchange of services contract with telegraph company. Hdlmich v. Mo. Pac. R. R242 4. Conveyance in Trust, to accumulate income and then divide fund among beneficiaries named, vests interests, and is not “ intended to take effect in possession or enjoyment at or after death,” within Revenue Act, 1918. Shukert v. Aden.........................................'.......... 545 5. Distraint. Five year limitation on under Rev. Act, 1921. Bowers v. Lighterage Co................................. 345 II. State Taxation. Oil and Gas Lease. Royalty interest taxed as real property. Waggoner Estate v. Wichita County..................... 114 TELEGRAPH COMPANIES. See Taxation, I, 3. TESTIMONY. See Constitutional Law, II. TEXAS. See Procedure, 1. THEATERS: 1. Private Enterprise. A theater, though a license may be required, is a private enterprise; the license is not a fran- INDEX. 813 THEATERS—Continued. Page chise putting the proprietor under a duty to furnish entertainment to the public and admit all who apply. Tyson & Bro. v. Banton........................................ 418 2. Price of Tickets on resale by brokers can not be fixed by statute. Id. TRADE MARKS: 1. In Foreign Land. Dependent for protection on the foreign law. Ingenohl v. Olsen & Co......................541 2. Alien Property Custodian, without authority to transfer trade mark rights in foreign country contrary to foreign law. Id. 3. Judgment, of foreign court sustaining trade mark right, not to be rejected by Philippine Court on ground of mistake. Id. 4. Disuse and Loss of Good Will, do not extinguish trade mark right. Beech-Nut Co. v. Lorillard Co..............629 5. Infringement. Right to object lost by lapse of time and change of circumstances. Id. TRADING WITH THE ENEMY ACT. See Jurisdiction, II, (5). 1. Seizure of Corporate Shares. Presumption of ownership from registration on books; demand by Alien Property Custodian ; duty of corporation to cancel old certificates and issue new ones under Act of 1918; right of custodian independent of surrender of old ones; corporation and non-enemy owners protected by the statute. Gt. Nor. Ry. v. Sutherland.. 182 2. Trade Mark. Rights in foreign country not subject to transfer by Alien Property Custodian contrary to foreign la w. Ingenohl v. Olsen & Co........................... 541 TRANSPORTATION ACT. See Interstate Commerce Acts, I, 3, 4. TREATY. See International Law. TRESPASSER AB INITIO. See Constitutional Law, VI, 5. TRUSTEES. See Abatement and Substitution, 3. TRUSTS. See Taxation, I, 4. UNFAIR COMPETITION. See Federal Trade Commission Act. Representations by Competitor concerning his own goods. Mosier Co. v. Ely-Norris Co... '...................... 132 814 INDEX. Page. UNITED STATES. See Claims; Interstate Commerce Acts, II, 1. 1. Corrupt Official Action. Right of United States to set aside leases of its reserved lands, and related contracts, obtained by dominating influence of officer, corruptly procured, is independent of whether he was paid money, and of financial loss to United States. Pan Amer. Co. v. U.S......456 2. Cancellation of Fraudulent and Unlawful Conveyance. When relief not conditioned, as in case of individual, upon restitution of consideration by United States. Id. UNITED STATES ATTORNEY. See Criminal Law, 3, 4. VALUATION. See Interstate Commerce Acts, I, 2; II. VENUE. See Anti-Trust Acts, 1, 8; Criminal Law, 15; Juris- diction, III, 5; Jury, 3. VESTED INTEREST. See Taxation, I, 4. WAIVER. See Bankruptcy; Criminal Law, 6; Jurisdiction, III, 8. WARRANT. See Constitutional Law, II, 1, 4; VI; Criminal Law, 5-8. WARRANTY. See Sales. WITNESS. See Constitutional Law, II; Evidence, 4. ADDITIONAL COPIES OF THIS PUBLICATION MAY BE PROCURED FROM THE SUPERINTENDENT OF DOCUMENTS U. S. GOVERNMENT PRINTING OFFICE WASHINGTON, D. C. AT $2.75 PER COPY V