UNITED STATES REPORTS VOLUME 274 CASES ADJUDGED IN 1 THE SUPREME COURT AT OCTOBER TERM, 1926 From April 11, 1927 (in part) TO AND INCLUDING JUNE 6, 1927 ERNEST KNAEBEL REPORTER UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON 1928 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. ii JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS1 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.1 2 CHARLES ELMORE CROPLEY, Clerk.2 FRANK KEY GREEN, Marshal. 1 For allotment of the Chief Justice and Associate Justices among the several circuits, see p. IV, post. 2 See pp. V-IX, post, in SUPREME COURT OE THE UNITED STATES October Term, 19261 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, Asso- * ciate 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. 1 For next previous allotment, see 268 U. S., p. IV, iv SUPREME COURT OE THE UNITED STATES Monday, June 6, 1927 Present: The Chief Justice, Mr. Justice Holmes, Mr. Justice Van Devanter, Mr. Justice McReynolds, Mr. Justice Brandeis, Mr. Justice Sutherland, Mr. Justice Butler, Mr. Justice Sanford, and Mr. Justice Stone. The Chief Justice said: The Court announces with deep personal sorrow the death of William Riley Stansbury, its clerk, at 5 o’clock on yesterday (Sunday) morning, June 5. Mr. Stansbury was born May 25, 1856, so that he had reached the age of 71. He was born, and has always lived, in this District, except for a year or two spent in the Signal Service of the United States. He entered this Court as an assistant clerk in August, 1882, and has acted in every capacity as a subordinate in the clerk’s office, having succeeded Mr. James D. Maher as clerk in October, 1921, six years ago. He was an accurate, faithful, earnest, and efficient public servant. He was saturated with the traditions of the office and familiar to the last detail with all the duties to be discharged in that important place. He endeared himself in every relation to the members of the Court. He was genial and accommodating and interested for every member of the public, and especially every one of the bar who had to transact business with the Court. He was a man of the utmost probity and of highest character in every respect. v VI WILLIAM RILEY STANSBURY. The Court takes great pride in the history of the maintenance of the traditions of the clerk’s office and of the length of service of those who administered it. Mr. Bayard was appointed clerk in 1791 and served until 1800. Mr. Caldwell was appointed in 1800 and served until 1825. Mr. Carroll was appointed in 1827 and served until 1863. Mr. Middleton was appointed in 1863 and served until 1880. Mr. James H. McKenney was appointed in 1880, having been for years the chief assistant of Mr. Middleton, and served until 1913. Mr. James D. Maher, having for many years since boyhood been an assistant in the clerk’s office, was appointed clerk in 1913 and served until 1921. Mr. Stansbury having been appointed assistant clerk in 1882, and having served as the head of the office for six years, looked back to a record of forty-five years. Such lengths of service indicate not only fidelity but efficiency, for only by reason of the latter could the incumbents have continued during the term they served. Because the Court adjourns this morning for the term of 1926, and for more than three months, and because no successor to Mr. Stansbury could be appointed during the vacation, it has been necessary for the Court, in spite of Mr. Stansbury’s very recent death, to appoint his successor, in order that the successor may be installed, give his bonds, and begin the administration of his office, which, because of its public obligations, can not be suspended at all. Mr. Philander Riley Stansbury, the brother of the late Clerk, has been an assistant for more than 30 years and has rendered faithful services. Because of the state of his health he has declined to be considered for the succession. The Court has appointed as its Clerk, to succeed Mr. Stansbury, Charles Elmore Cropley, of Washington. Mr. Cropley has already served in the Court as Page and Assistant some 18 years, but is still in the prime of life. WILLIAM RILEY STANSBURY. vn He has great familiarity with the duties of the office and carries with him to its headship the traditions that have secured such distinguished and useful service by Mr. Stansbury and his predecessors, with the probability of a life of long usefulness. The members of the Court will attend the funeral of Mr. Stansbury in a body, at half past 10 to-morrow (Tuesday) morning, at St. Andrews Episcopal Church, at the corner of Fifteenth and V Streets. SUPREME COURT OF THE UNITED STATES Monday, June 6, 1927 Present: The Chief Justice, Mr. Justice Holmes, Mr. Justice Van Devanter, Mr. Justice McReynolds, Mr. Justice Brandeis, Mr. Justice Sutherland, Mr. Justice Butler, Mr. Justice Sanford, and Mr. Justice Stone. ORDER It is hereby ordered that Charles Elmore Cropley be appointed Clerk of this Court in the place of William R. Stansbury, deceased, and that he forthwith take the oath of office and give bond conditioned according to law. ORDER On the application of the Clerk, pursuant to Section 221 of the Judicial Code, it is ordered that Reginald C. Dilli be, and he is hereby, appointed a Deputy Clerk of this Court. IX TABLE OF CASES REPORTED Page Abell, Admr., v. Thompson, Executors............ 761 Adkins v. Costigan.............................. 760 Ahrens, Martin, Executor, v..................... 745 Alabama & Vicksburg Ry. Co. v. Fountain, Admx... 759 Alamo Foods Co. v. Walker, Collector............ 741 Alford, United States v..........................264 Allebach v. Thomas, Trustee..................... 744 Allen, Humboldt Land & Cattle Co. v............. 711 Alston v. United States......................... 289 American National Co., Receiver, v. United States... 99 American Optical Co., Kirstein Optical Co. v. .x .... 742 American Optical Co., Shur-On Optical Co. v...... 742 American Tobacco Co., Federal Trade Comm, v.... 543 American Valve & Meter Co., Fairbanks, Morse & Co. v......................................... 735 American Wholesale Corp. v. Stone, Trustee....... 758 Anastopoulos v. Johnson, Commr.................. 762 Anderson, Collector, Untermyer, Executrix, v.....730 Andrus v. Hutchinson............................ 761 Angelo v. Winston-Salem......................... 725 Apex Electric Mfg. Co., Ex parte................ 725 Applegate, Arkansas ex rel. Gilliland Oil Co. v..717 Appell v. United States......................... 744 Arizona Edison Co., Southern Sierras Power Co. v... 757 Arkansas ex rel. Applegate, Gilliland Oil Co. v..717 Arkansas R. R. Comm. v. Chicago, Rock Island & Pacific R. R. Co.............................. 597 Assigned Car Cases.............................. 564 Atkins v. Ohio.................................. 720 XI XII TABLE OF CASES REPORTED. Page Ball, Midland Oil Co. v...................:...... 721 Baltimore S. S. Co. v. Phillips................. 316 Barber Asphalt Co., Ex parte.................... 711 Barber Asphalt Co. v. Standard Asphalt & Rubber Co......................................:..... 728 Barker, Pierce v...............,................. 718 Barnard v. United States........................ 736 Barrett v. Bigger............................... 752 Bear, Trustee, Liberty National Bank of Roanoke v. 731 Beatty, Executrix, v. Heiner, Collector......... 733 Beaver County v. South Utah Mines & Smelters.... 746 Bedford Cut Stone Co. v. Journeymen Stone Cutters Assn........................................... 37 Bell, Buck v..................................... 200 Berg v. Merchant, Executors..................... 738 Berkeness, United States v....................... 727 Bianchi, Vere v................................. 752 Biddle v. Perovich............................... 480 Biddle, Phillips v... -......................... 735 Bigger, Barrett v............................... 752 Bissell Lumber Co. v. Fehrman.................... 720 Blair, Commr., v. Oesterlein Machine Co......... 730 Blodgett v. Silberman........................... 728 Board of Improvement, Ft. Smith Light Co. v.....387 Board of Public Works, Zahn v................... 325 Bossio v. United States......................... 742 Bowman-Hicks Lumber Co. v. Robinson............. 736 Brewer, Collector, Chattanooga Savings Bank, Admr., v..................................... «51 Broadway Trust Co., Trustee, v. Dill, Receiver.. 760, 765 Brooke v. Norfolk............................... 734 Brooklyn Eastern District Terminal v. Busch..... 739 Brown, Trustees, Portneuf-Marsh Valley Canal Co. .......................................... 530 Buck v. Bell.................................... 200 Buder, First National Bank in St. Louis v....... 743 Bürget, Ex parte................................ 723 TABLE OF CASES REPORTED. xm Page Burke & James, Inc. v. United States............ 764 Bumrite Coal Briquette Co. v. Riggs............. 208 Bums v. United States........................... 328 Busch, Brooklyn Eastern District Terminal v...... 739 Butzel v. Schneller............................. 764 Cahan, Empire Trust Co. v.........................473 California, Whitney v............................. 357 Camp v. United States........................... 754 Cardigan v. White................................. 755 Channon, Executrix, Ludlam v.................... 747 Chase v. United States.......................... 749 Chattanooga Savings Bank, Admr., v. Brewer, Collector ......................................... 751 Chicago, Milwaukee & St. Paul Ry. Co. v. Public Utilities Comm.................................. 344 Chicago, Rock Island & Pacific R. R. Co., Arkansas R. R. Comm, v................................... 597 Chicago, Rock Island & Pacific Ry. Co. v. United States......................................... 29 Chin Bow, Weedin, Commissioner, v............... 657 Claire Furnace Co., Federal Trade Comm, v........ 160 Clarey v. United States........................... 752 Clark v. Poor.................................... 554 Clark, Trustees, McColgan, Admx., v............... 738 Clarke, Ohio ex rel., v. Deckebach.............. 392 Cline v. Frink Dairy Co........................... 445 Colonial Trust Co., Executor, Heiner, Collector, v... 731 Colonial Trust Co., Executor, Lewellyn, Collector, v. 732 Colorado ex rel. Graham, Lindsey v.............. 757 Commercial Union Assurance Co. v. Marshall ..... 760 Commercial Union Fire Ins. Co. v. Marshall....... 760 Compagnie Generale Transatlantique v. Lawrence Leather Co.................................... 761 Continental Securities Co. v. Michigan Central R. R. Co............................................ 741 Contois, Galveston, Harrisburg & San Antonio Ry. Co. v....................................... 747 XIV TABLE OF CASES REPORTED. Page Contreras v. United States..................... 721 Cook, McEuen v................................. 757 Coolidge, Executors, Nichols, Collector, v..... 531 Cooper, Wood v................................. 750 Cornell Steamboat Co. v. Coughlin.............. 751 Corporation Commission of Oklahoma, Frost v..... 719 Costigan, Adkins v............................. 760 Coughlin, Cornell Steamboat Co. v.............. 751 Creek Nation v. United States................. 751 Danciger v. Smith.............................. 733 Dale v. Indiana................................ 763 Damon ex rei. Kock Tang v. Johnson, Commissioner. 754 Daniels v. United States....................... 744 Davis, Director General, v. Kentucky............ 76 Davis, Secretary of Labor, Lidonnici v......... 744 Deal v. United States......................... 277 Deckebach, Ohio ex rei. Clarke v................. 392 De Hart, Taylor v...Ï.......................... 726 Desmond v. Eggers.............................. 722 Dickson, Lowe v................................. 23 Dill, Receiver, Broadway Trust Co., Trustee, v.. 760, 765 Dings Magnetic Co., Magnetic Mfg. Co. v........ 740 Drumright, Trustee, v. Texas Sugarland Co....... 749 Drum v. New Jersey............................. 759 Duby, Morris v................................. 135 Duckett & Co. v. United States................. 765 Duignan v. United States....................... 195 Dunn v. United States...........................736 Dwyer v. United States......................... 756 Dysart v. United States........................ 755 Eastman Kodak Co., Federal Trade Comm, v........ 619 Eaton, Brown & Simpson, Inc. v. United States...746 Eggers, Desmond v.............................. 722 Ellison v. Koswig.............................. 734 Empire Coal Mining Co. v. Updike, Receiver...... 750 Empire Gas & Fuel Co., Stem v.......... ..... . 737 TABLE OF CASES REPORTED. xv Page Empire Trust Co. v. Cahan....................... 473 Esperanza, The, United States v................. 753 Exchange Buffet Corp., 103 Park Avenue Co. v....722 Ex parte Apex Electric Mfg. Co.................. 725 Ex parte Barber Asphalt Co...................... 711 Ex parte Bürget................................. 723 Ex parte Garland................................ 759 Ex parte Lakewood Engineering Co................ 711 Ex parte Moore, Trustee......................... 723 Ex parte Saunders........................... 717,722 Ex parte Smith.................................. 723 Ex parte Stilz.................................. 722 Fairbanks, Morse & Co. v. American Valve & Meter Co............................................ 735 Fairmont Creamery Co. v. Minnesota............... 1 Fasken, Texas v................................. 724 Federal Oil & Development Co., Hodgson v....... 15 Federal Trade Comm. v. American Tobacco Co...... 543 Federal Trade Comm. v. Claire Furnace Co........ 160 Federal Trade Comm. v. Eastman Kodak Co......... 619 Federal Trade Comm. v. Klesner.................. 145 Federal Trade Comm. v. Millers’ National Federation ....................................... 743 Fehrman, Bissell Lumber Co. v.................. 72$ Fidelity National Bank & Trust Co. v. Swope..... 123 Fife v. Louisiana............................... 720 Fife v. State Board of Medical Examiners........ 720 Findlay, Waymouth & Lee, Inc. v. Gallardo....... 732 First National Bank in St. Louis v. Buder....... 743 First National Bank of Skiatook, Schuman Bros. v.. 716 Fiske v. Kansas................................. 380 Foraker, Missouri ex rel., Hoffman v. 21 Ft. Smith Light Co. v. Board of Improvement.....387 Ft. Smith, Subiaco & Rock Island R. R. Co. v. Moore, Admx................................... 728 Ft. Worth & Denver City Ry. v. Texas............ 718 XVI TABLE OF CASES REPORTED. Page Foundation Co., Messel v....................... 427 Fountain, Admx., Alabama & Vicksburg Ry. Co. v... 759 Fox, Gorieb v.................................. 603 Fox River Paper Co. v. Railroad Comm......... 651 Freights of S. S. Mt. Shasta, United States v...466 French & Co., Lakewood Engineering Co. v........ 729 Frink Dairy Co., Cline v......................... 445 Frish v. United States......................... 748 Fritz, Ohio ex rel., Ohio Public Service Co. v........ 12 Frost v. Corporation Commission of Oklahoma..... 719 Gallardo, Finlay, Waymouth & Lee, Inc. v....... 732 Gallardo, Insular Motor Corp, v.................. 732 Gallardo, Ordonez v............................. 732 Gallardo, Portilla v.............................. 732 Gallardo, Smallwood v........................... 732 Gallardo, Valdes v............................. 732 Galveston, Harrisburg & San Antonio Ry. Co. v. Contois........................................... 747 Gambino v. United States....................... 733 Garland, Ex parte.............................. 759 Ghadiali v. United States...................... 747 Gibson, Admr., Texas & Pacific Ry. Co. v...... 731, 748 Gilliland Oil Co. v. Arkansas ex rel. Applegate. 717 Goodbody, Receiver, v. Pennsylvania R. R. Co.... 181 Goree, Trustee, v. Wilkinson, Trustee...........761 Gorieb v. Fox.................................. 603 Gould-Mersereau Co. v. Williams Bros. Aircraft Corp. 713 Graham, Colorado ex rel. Lindsey v............. 757 Grant v. Topas................................. 754 Gray, Admx., Mellon v.......................... 715 Great Western Power Co. v. Nippon Kaisha........745 Hall, Hope Natural Gas Co. v.................... 284 Hammond Lumber Co. v. Sandin................... 756 Hampton & Co. v. United States................. 735 Hanby, United States v......................... 763 Hartford Fire Ins. Co. v. Marshall............. 760 TABLE OF CASES REPORTED. XVII Page Heiner, Collector, Beatty, Executrix, v......... 733 Heiner, Collector, v. Colonial Trust Co., Executor.. 731 Henry v. United States.......................... 737 Herminghaus, Southern California Edison Co. v.... 728 Hess v. Pawloski................................ 352 Hidalgo County Water Improvement v. Western Mfg. Co...................................... 758 Highland v. Russell Car & Snow Plow Co........... 731 Hodgson v. Federal Oil & Development Co.......... 15 Hoffman v. Missouri ex rel. Foraker.............. 21 Holloway v. Holloway............................ 724 Holloway, Nones, Executrix, v................... 724 Home Fire Ins. Co. v. Marshall.................. 760 Hooper v. United States......................... 743 Hope Natural Gas Co. v. Hall.................... 284 Howe, Admx., v. Michigan Central R. R. Co........738 Humboldt Land & Cattle Co. v. Allen............. 711 Hungerford Brass & Copper Co. v. Traitel Marble Co......................................*......753 Hutchinson, Andrus v............................ 761 Idaho, United States v.......................... 725 Illinois, New York v......................... 488, 712 Independent Coal & Coke Co. v. United States.....640 Indiana, Dale v...........................-..... 763 Industrial Finance Corp., Levy v................ 731 Insular Motor Corp. v. Gallardo................. 732 International Harvester Co., United States v..... 693 International Salt Co., Phillips, Collector, v... 718 Investors Syndicate v. McMullen................. 717 Jeggle v. Mansur, Trustee....................... 758 Jennings & Co. v. Reinecke, Collector........... 753 Johnson, Commr., Anastopoulos v................. 762 Johnson, Commr., Damon ex rel. Kock Tang v...... 754 Joines v. Patterson............................. 544 55514°—28-II XVIII TABLE OF CASES REPORTED. Page Journeymen Stone Cutters Assn., Bedford Cut Stone Co. v:......................................... 37 Kadow v. Paul................................... 175 Kansas, Fiske v................................. 380 Kelton v. Kelton................................ 711 Kemmerer, Admx., v. Reading Co.................. 740 Kentucky, Davis, Director General, v............. 76 Kentucky, Southern Ry. Co. v..................... 76 Kercheval v. United States...................... 220 Kirby v. United States.......................... 727 Kirstein Optical Co. v. American Optical Co...... 742 Klesner, Federal Trade Comm, v. 145 Kock Tang, Damon ex rel., v. Johnson, Commr...... 754 Koswig, Ellison v............................... 734 Kramer, Succession Francisca v.................. 757 LaBelle Iron Works, Thompson-Starrett Co. v...... 748 Lakewood Engineering Co., Ex parte.............. 711 Lakewood Engineering Co. v. French & Co.......... 729 Lamar Life Insurance Co., Pittman v............. 750 Lane & Co. v. United States..................... 742 Langford, Longest v............................. 499 Lawrence v. St. Louis-San Francisco Ry Co........588 Lawrence Leather Co., Compagnie Generale Trans- atlantique v................................. 761 Lee, United States v............................ 559 LeFlore, Steen ................................. 758 Levy v. Industrial Finance Corp................. 731 Lewellyn, Collector, v. Colonial Trust Co., Executor. 732 Liberty National Bank of Roanoke v. Bear, Trustee. 731 Lidonnici v. Davis, Secretary of Labor.......... 744 Liggett & Myers Tobacco Co. v. United States..... 215 Lindberg, United Dredging Co. v................. 759 Lindsey v. Colorado ex rel. Graham..............- 757 Long v. Rockwood............................ 729, 730 Longest v. Langford............................. 499 Louisiana, Fife ................................ 720 Louisiana, Norris ............................ 719 TABLE OF CASES REPORTED. xix Page Lowe v. Dickson............................... 23 Ludey, United States v....................... 295 Ludlam v. Channon, Executrix................... 747 Magnetic Mfg. Co. v. Dings Magnetic Co....... 740 Manassas Battlefield Confederate Park, Inc. v. Robertson.................................. 716 Manila, Posados, Collector, v.................410 Mansur, Trustee, Jeggle v.................... 758 Manzi, United States v....................... 730 Marron v. United States...................... 727 Marshall, Commercial Union Assurance Co. v.... 760 Marshall, Commercial Union Fire Ins. Co. v.... 760 Marshall, Hartford Fire Ins. Co. v........... 760 Marshall, Home Fire Ins. Co. v............... 760 Martin, Executor, v. Ahrens.................. 745 Maul v. United States....................... 501 Maxwell, Executors, McDonald v................ 91 Mayor and Aidermen of Natchez v. McNeely...... 762 Mayor and Aidermen of Natchez, McNeely, Admx., v. 762 Mayor and Aidermen of Vidalia v. McNeely, Admx.. 676 Mayor and Aidermen of Vidalia, McNeely, Admx., v. 676 McColgan, Admx., v. Clark, Trustees.......... 738 McCormick Lumber Co., Van Norden v........... 758 McCoy, United States ex rel. Saunders v...... 755 McDonald v. Maxwell, Executors................ 91 McEuen v. Cook................................. 757 McEuen v. Newark............................... 757 McLaughlin, Trustee, v. Prince................. 746 McMullen, Investors Syndicate v................ 717 McNeely, Mayor and Aidermen of Natchez v...... 762 McNeely, Admx., v. Mayor and Aidermen of Natchez...................................... 762 McNeely, Admx., Mayor and Aidermen of Vidalia v. 676 McNeely, Admx., v. Mayor and Aidermen of Vidalia. 676 McNeil & Sons Co., Redondo S. S. Co. v....... 740 McPherson Bros. Co., Washington ex rel., v. Superior Court ..............,........•............. 726 XX TABLE OF CASES REPORTED. Page Mellon v. Gray, Admx............................. 715 Mellon v. New Jersey Shipbuilding Co............. 738 Merchant, Executors, Berg v...................... 738 Merritt & Chapman Derrick Co. v. United States.... 611 Messel v. Foundation Co.......................... 427 Michigan Central R. R. Co., Continental Securities Co. v.......................................... 741 Michigan Central R. R. Co., Howe, Admx., v........ 738 Midland Oil Co. v. Ball.......................... 721 Miller, Alien Property Custodian, Thorsch v....... 763 Millers’ National Federation, Federal Trade Comm. v.............................................. 743 Milliken v. Stone, Attorney General.............. 748 Minnesota, Fairmont Creamery Co. v1 Missouri ex rel. Foraker, Hoffman v... ?.......... 21 Missouri Pacific R. R. Co., Road Improvement Dist. v........................................ 188 Missouri Pacific R. R. Co. v. Steen, Admx........ 753 Mitchell, Executor, v. Nelson, Trustee........... 747 Montimore, Pullman Co. v....................... 746 Moore, Admx., Ft. Smith, Subiaco & Rock Island R. R. Co. v.................................... 728 Moore, Trustee, Ex parte........................ 723 Moran, Scripps, Executor, v. 744 Morris v. Duby................................. 135 Mt. Shasta, Freights of S. S., United States v....... 466 Nancy v. United States......................... 745 National Life Insurance Co. v. United States...... 734 National Spiritualists Assn. v. Vestal......... 739 National Surety Co., Sioux County v.............. 729 Nelson, Trustee, Mitchell, Executor, v......... 747 Newark, McEuen v............................... 757 New Jersey, Drum v....................z....... 759 New Jersey Shipbuilding Co., Mellon v.............738 New Mexico v. Texas.............................. 716 New York v. Illinois......................... 488, 712 Tablé òr cases reported. XXÏ Page New York & Cuba S. S. Co., United States v.. 753 New York & Pennsylvania Ry. Co. v. United States. 756 New York Dock Co. v. S. S. Poznan.......... 1,17 New York Trust Co. v. United States......... 756 Nichols, Collector, v. Coolidge, Executors.. 531 Nippon Kaisha, Great Western Power Co. v...... 745 Nones, Executrix, v. Holloway............... 724 Norden v. McCormick Lumber Co............... 758 Norfolk, Brooke v........................... 734 Norris v. Louisiana......................... 719 Northern Ry. Co. v. Page, Admrs.............. 65 Northside Belt Ry. Co., Texas & New Orleans R. R. Co. v..................................... 734 North Side Canal Co., State Board of Equalization v................................... 740, 741 Norwegian Nitrogen Co., United States ex rel., v. Tariff Comm............................... 106 Oesterlein Machine Co., Blair, Commr., v.......... 730 O’Fallon v. United States................... 743 Ohio, Atkins vJ.............. 720 Ohio ex rel. Clarke v. Deckebach............ 392 Ohio ex rel. Fritz, Ohio Public Service Co. v. 12 Ohio Public Service Co. v. Ohio ex rel. Fritz. 12 Oklahoma, Phillips v.<... .1..................... 721 Oklahoma v. Texas...................... 713,714 103 Park Avenue Co. v. Exchange Buffet Corp... 722 Ordonez v. Gallardo......................... 732 Oregon, Willos v......... X........1............ 722 Orlov v. Sawyer............................. 736 Osborne v. United States.................... 751 Ostrander v. United States.................. 754 Overland Motor Co. v. Packard Motor Co........417 Packard Motor Co., Overland Motor Co. v.......417 Page, Admrs., Northern Ry. Co. v.. 65 Patterson, Joines v......................... 544 Pattis v. United States..................... 750 XXII TABLE OF CASES REPORTED. . Pago Paul, Kadow v.................................... 175 Pawloski, Hess .................................. 352 Pennsylvania R. R. Co., Goodbody, Receiver, v.... 181 Pennsylvania R. R. Co., Timken Roller Bearing Co. ........................................• • • 181 Perovich, Biddle v............................... 480 Phelps v. United States..............x........... 341 Philadelphia Warehouse Co., Seeman v............. 403 Phillips, Baltimore S. S. Co. v.................. 316 Phillips v. Biddle............................... 735 Phillips, Collector, v. International Salt Co.... 718 Phillips v. Oklahoma............................. 721 Piedmont, Real Silk Hosiery Mills v.............. 723 Pierce v. Barker................................. 718 Pinar Del Rio, The, Plamals v.................... 733 Pinkerton v. Wengert............................. 712 Pittman v. Lamar Life Insurance Co............... 750 Pizitz Dry Goods Co. v. Yeldell, Admr............ 112 Plamals v. S. S. Pinar Del Rio................... 733 Pons v. State Bank & Trust Co.................... 737 Poor, Clark ..................................... 554 Portilia v. Gallardo............................. 732 Portneuf-Marsh Valley Canal Co. v. Brown, Trustees. 630 Posados, Collector, v. Manila.................... 410 Power Manufacturing Co. v. Saunders..........490 Poznan, The, New York Dock Co. v............... 117 Prairie Oil & Gas Co., Twist v................... 684 Priester, Western Union Telegraph Co. v.......... 727 Prince, McLaughlin, Trustee, v................... 746 Public Service Comm., United Rys. Co. of St. Louis v. 764 Public Utilities Comm., Chicago, Milwaukee & St. Paul Ry. Co. v............................... 344 Pullman Co. v. Montimore......................... 746 Railroad Comm., Fox River Paper Co. v............ 651 Reading Co., Kemmerer, Admx., v. 740 TABLE OF CASES REPORTED. XXIII Page Real Silk Hosiery Mills v. Piedmont............ 723 Redondo S. S. Co. v. McNeil & Sons Co.......... 740 Reinecke, Collector, Jennings & Co. v...........753 Rex Amusement Co. v. Truschel.................. 736 Rhea v. Smith.................................. 434 Richardson Machinery Co. v. Scott, Admx......... 729 Riggs, Bumrite Coal Briquette Co. v............ 208 Rivara, Stewart & Co. v........................ 614 Road Improvement Dist. v. Missouri Pacific R. R. Co..................................... 188 Robertson, Manassas Battlefield Confederate Park, Inc. v....................................... 716 Robinson, Bowman-Hicks Lumber Co. v......... 736 Rockwood, Long v........................... 729, 730 Rosenthal-Brown Fur Co., Texas Co. v.......... 746 Russell Car & Snow Plow Co., Highland v......... 731 St. Louis & San Francisco R. R. Co. v. Spiller..304 St. Louis-San Francisco Ry. Co., Lawrence v....... 588 Sandin, Hammond Lumber Co. v................. 756 Saunders, Ex parte.......................... 717, 722 Saunders, Power Manufacturing Co. v............. 490 Saunders, United States ex rel., v. McCoy....... 755 Sawyer, Orlov v................................ 736 Schneller, Butzel v.............................. 764 Schuman Bros. v. First National Bank of Skiatook.. 716 Schwartz v. United States...................... 752 Scott, Admx., Richardson Machinery Co. v........ 729 Scripps, Executor, v. Moran.................... 744 Seeman v. Philadelphia Warehouse Co............ 403 Segurola v. United States...................... 729 Shur-On Optical Co. v. American Optical Co...... 742 Silberman, Blodgett v.......................... 728 Sioux County v. National Surety Co............. 729 Sisal Sales Corp., United States v............. 268 Smallwood v. Gallardo.......................... 732 Smith, Danciger v........................ 733 XXIV TABLE OF CASES REPORTED. Page Smith, Ex parte.................................... 723 Smith, Rhea v............................... 434 Smith v. United States...................... 762 South Daviess Drainage Dist., Wabash Ry. Co. v... 764 South Utah Mines & Smelters, Beaver County v.... 746 Southern California Edison Co. v. Herminghaus... 728 Southern Ry Co. v. Kentucky......................... 76 Southern Ry. Co., Watts v.......................... 749 Southern Sierras Power Co. v. knzona, Edison Co... 757 Spiller, St. Louis & San Francisco R. R. Co. v......304 S. S. Esperanza, United States v................... 753 S. S. Pinar Del Rio, Plamals v.................... 733 S. S. Poznan, New York Dock Co. v.................. 117 Standard Asphalt & Rubber Co., Barber Asphalt Co. v...................'........................ 728 State Bank & Trust Co., Pons v..................... 737 State Board of Equalization v. North Side Canal Co........................................... 740,741 State Board of Equalization v. Twin Falls Canal Co........................................... 740,741 State Board of Medical Examiners, Fife v........... 720 Steen v. LeFlore................................... 758 Steen, Admx., Missouri Pacific R. R. Co. v......... 753 Stem v. Empire Gas & Fuel Co....................... 737 Stewart & Co. v. Rivara............................ 614 Stilz, Ex parte............... Ï.............. . 722 Stone, Attorney General, Milliken v.... .1......... 748 Stone, Trustee, American Wholesale Corp, v....... 758 Stone & Downer Co., United States v..... ï........ 225 Story v. United States............................. 739 Succession Francisca v. Kramer..................... 757 Sullivan, United States v.......................... 259 Superior Court, Washington ex rel. McPherson Bros. Co. v............................................ 726 Sutherland, Alien Property Custodian, Zimmermann v.......................................... 253 Swope, Fidelity National Bank & Trust Co. v..... 123 TABLE OF CASES REPORTED. XXV Page Tariff Comm., United States ex rel. Norwegian Nitro- gen Co. v...................................... 106 Taylor v. DeHart................................. 726 Texas v. Fasken.................................. 724 Texas, New Mexico v.............................. 716 Texas, Oklahoma v............................ 713,714 Texas, Ft. Worth & Denver City Ry. v............. 718 Texas & New Orleans R. R. Co. v. Northside Belt Ry. Co............................................. 734 Texas & Pacific Ry. Co. v. Gibson, Admr...... 731, 748 Texas Co. v. Rosenthal-Brown Fur Co.............. 746 Texas Co., United States v....................... 752 Texas Sugarland Co., Drumright, Trustee, v........ 749 Thomas, Trustee, Allebach v.................... 744 Thompson, Executors, Abell, Admr., v............. 761 Thompson-Starrett Co. v. LaBelle Iron Works...... 748 Thorsch v. Miller, Alien Property Custodian...... 763 Timken Roller Bearing Co. v. Pennsylvania R. R. Co. 181 Topas, Grant v................................... 754 Traitel Marble Co., Hungerford Brass & Copper Co. v......................................... 753 Trinidad Asphalt Mfg. Co., Western Willite Co. v... 737 Truschel, Rex Amusement Co. v.................... 736 Twin City Forge Co. v. United States............. 763 Twin Falls Canal Co., State Board of Equaliza- tion ..................................... 740, 741 Twist v. Prairie Oil & Gas Co.................... 684 Union Petroleum S. S. Co. v. United States....... 760 United Dredging Co. v. Lindberg.................. 759 United Rys. Co. of St. Louis v. Public Service Comm. 764 United States v. Alford.......................... 264 United States, Alston v.......................... 289 United States, American National Co., Receiver, v.. 99 United States, Appell v.......................... 744 United States, Barnard v......................... 736 United States v. Berkeness....................... 727 United States, Bossio v......................... 742 XXVI TABLE OF CASES REPORTED. Page United States, Burke & James, Inc. v............. 764 United States, Bums v........................... 328 United States, Camp v........................... 754 United States, Chase v........................... 749 United States, Chicago, Rock Island & Pacific Ry. Co. v........................................ 29 United States, Clarey v........................... 752 United States, Contreras v...................... 721 United States, Creek Nation v.................... 751 United States, Daniels v.. 744 United States, Deal v. . 277 United States, Duckett & Co. v. 765 United States, Duignan v........... J........... i 195 United States, Dunn v............................. 736 United States, Dwyer v.......................... 756 United States, Dysart v. 755 United States, Eaton, Brown & Simpson, Inc. v.... 746 United States v. Freights of S. S. Mt. Shasta......466 United States, Frish v. 748 United States, Gambino v ....................... 733 United States, Ghadiali v........................ 747 United States, Hampton & Co. v................. 735 United States v. Hanby............................ 763 United States, Henry v...................-........ 737 United States, Hooper v........................... 743 United States v. Idaho............................ 725 United States, Independent Coal & Coke Co. v.......640 United States v. International Harvester Co........ 693 United States, Kercheval v........................ 220 United States, Kirby v. . 727 United States, Lane & Co. v....................... 742 United States v. Lee.............................. 559 United States, Liggett & Myers Tobacco Co. v.......215 United States v. Ludey............................ 295 United States v, Manzi.........:.................. 730 United States, Marron v....... t. 727 United States, Maul v............................ 501 TABLE OF CASES REPORTED. XXVII Page United States, Merritt & Chapman Derrick Co. v.. 611 United States, Nancy v........................... 745 United States, National Life Insurance Co. v....... 734 United States v. New York & Cuba S. S. Co........ 753 United States, New York & Pennsylvania Ry. Co. v. 756 United States, New York Trust Co. v.............. 756 United States, O’Fallon v........................ 743 United States, Osborne v........................ 751 United States, Ostrander v....................... 754 United States, Pattis v.......................... 750 United States, Phelps v.... .................... 341 United States, Schwartz v........................ 752 United States, Segurola v........................ 729 United States v. Sisal Sales Corp................ 268 United States, Smith v........................... 762 United States v. S. S. Esperanza................. 753 United States v. Stone & Downer Co............... 225 United States, Story v........................... 739 United States v. Sullivan........................ 259 United States v. Texas Co........................ 752 United States, Twin City Forge Co. v............ 1. 763 United States, Union Petroleum S. S. Co. v....... 760 United States, Watson v.......................... 739 United States, Westfall v........................ 256 United States, White v........................... 745 United States v. White Dental Mfg. Co.............398 United States, Whitney v........................ 749 United States, Wood v............................ 761 United States, Wright v.......................... 736 United States ex rel. Norwegian Nitrogen Co. v. Tariff Comm........................................... 106 United States ex rel. Saunders v. McCoy.......... 755 Untermyer, Executrix, v. Anderson, Collector.....730 Updike, Receiver, Empire Coal Mining Co. v....... 750 Valdes v. Gallardo.......'....................... 732 Vere v. Bianchi.................................. 752 Vestal, National Spiritualists Assn, v........... 739 XXVIII TABLE OF CASES REPORTED. Page Wabash Ry. Co. v. South Daviess Drainage Dist.... 764 Walker, Collector, Alamo Foods Co. v........... 741 Washington ex rei. McPherson Bros. Co. v. Superior Court........................................ 726 Watson v. United States........................ 739 Watts v. Southern Ry. Co....................... 749 Weedin, Commissioner, v. Chin Bow.............. 657 Wengert, Pinkerton v........................... 712 West, Western Maryland Dairy Co. v.............. 765 Western Maryland Dairy Co. v. West............. 765 Western Mfg. Co., Hidalgo County Water Improve- ment v ...................................... 758 Western Union Telegraph Co. v. Priester........ 727 Western Willite Co. v. Trinidad Asphalt Mfg. Co... 737 Westfall v. United States...................... 256 White, Cardigan v.............................. 755 White v. United States......................... 745 White Dental Mfg. Co., United States v......... 398 Whitney v. California.......................... 357 Whitney v. United States....................... 749 Wilkinson, Trustee, Goree, Trustee, v.......... 761 Williams Bros. Aircraft Corp., Gould-Mersereau Co. v........................................ 713 Willos v. Oregon............................... 722 Winston-Salem, Angelo v........................ 725 Wood v. Cooper................................. 750 Wood v. United States.......................... 761 Wright v. United States........................ 736 Yeldell, Admr., Pizitz Dry Goods Co. v......... 112 Zahn v. Board of Public Works.................. 325 Zimmerman v. Sutherland, Alien Property Custodian ........................................ 253 TABLE OF CASES Cited in Opinions Page Abby, The, 1 Fed. Cas. 26 504 Abra Co. v. United States, 175 U. S. 423 133 Adams v. Milwaukee, 228 U. S. 572 397 Adams v. Tanner, 244 U. S. 590 9,374 Adams v. Yazoo R. R., 77 Miss. 194 231 Adkins v. Hospital, 261 U. S. 525 10 Aenta Co. v. Dunken, 266 U. S. 389 386 Agnello v. United States, 269 U. S. 20 563 Ah Chong, In re, 2 Fed. 733 396 Alexander, The, 75 Fed. 519 517 Allen v. Alleghany Co., 196 U. S. 458 394 Allis v. United States, 155 U. S. 117 336 Allor v. Board, 43 Mich. 76 524 Amer. Banana Co. v. Fruit Co., 213 U. S. 347 271, 275,511 Amer. Barge Co. v. Coal Co., 115 Fed. 669 470,472 Amer. Bridge Co. v. Seeds, 144 Fed. 605 75 Amer. Can Co. v. Williams, 178 Fed. 420 310 Amer. Exp. Co. v. Sou. Dak., 244 U. S. 617 603 Amer. Mach. Co. v. Kentucky, 236 U. S. 660 455,458 Amer. Mfg. Co. v. St. Louis, 250 U. S. 459 288 Amer. Mills Co. v. Surety Co., 260 U. S. 360 175 Ana Maria Co. v. Quinones, 254 U. S. 245 200 Page Anderson v. Lemon, 8 N. Y. 236 649 Anderson v. Shipowners Assn., 272 U. S. 359 47 Anderson v. United States, 171 U. S. 604 49,64 Andrews v. Pond, 13 Pet. 65 407,408 Anicker v. Gunsburg, 246 U. S. 110 19 Annapolis, The, Lush. 355 613 Apollon, The, 9 Wheat. 362 511 Appleby v. New York, 271 U. S. 364 654 Arch v. United States, 13 F. (2d) 382 514 Armstrong v. Warden, 183 N. Y. 223 • 391 Amstein v. United States, 296 Fed. 946 154 Arthur v. Lahey, 96 U. S. 112 247 Arthur’s Exrs. v. Butterfield, 125 U. S. 70 247 Asakura v. Seattle, 265 U. S. 332 396 Aschenbach Co., In re, 183 Fed. 305 214 Ash Co. v. United States, 252 U. S. 159 689 Assigned Cars, etc., 80 I. C. C. 520; 93 I. C. C. 701 567 Assignment of Cars, 571. C. C. 760 570,581 Atchison &c. Ry. v. Sowers, 213 U. S. 55 362 Atchison &c. Ry. v. Vosburg, 238 U. S. 56 493 Atchison &c. Ry. v. Wells, 265 U. S. 101 22 Atl. & West. Ry. v. Dunn, 19 Oh. St. 162 115 XXIX XXX TABLE OF CASES CITED. Page Atl. C. L. R. R. v. Mims, 242 U. S. 532 394 Atl. Trust Co. v. Chapman, 208 U. S. 360 214 Automatic Co. v. Boston Co., 279 Fed. 40 67 Avella Co. v. Pitts. &c. Ry., 58 I. C. C. 313; 77 I. C. C. 731 570 Avent v. United States, 266 U. S. 127 581 Bailey v. Jones, 96 Okla. 56 552 Baker v. Schofield, 243 U. S. 114 191 Balli v. Carrel, 99 Oh. St. 285 394 Balto. & 0. R. R. v. Coal Co., 267 Fed. 776 581 Balto. & 0. R. R. v. I. C. C., 221 U. S. 612 575 Balto. & Pot. R. R. v. Mackey, 157 U. S. 72 335 Balto. S. S. Co. v. Phillips, 274 U. S. 316 434 Bancroft v. Winspear, 44 Barb. 209 325 Bank v. Amer. Ins. Co., 3 N. Y. 344 * 407 Bank v. Commonwealth, 9 Wall. 353 91 Bank v. Memphis, 101 Tenn. 154 231 Bank of Augusta v. Earle, 13 Pet. 519 717 Bank of N. Amer. v. Hutton, 137 Fed. 534 470,472 Banton v. Belt Ry., 268 U. S. 413 351 Barber v. Schell, 107 U. S. 617 247 Barclay Co. v. Edwards, 267 U. S. 442 542 Barnes v. Racine, 4 Wis, 454 656 Barney v. Keokuk, 94 U. S. 324 655 Barratt’s Appeal, In re, 14 App. D. C. 255 420 Bass v. Tax Comm., 266 U. S. 271 363 Baumbach v. Sargent Co., 242 U. S. 503 302 Page Beach v. Macon Co., 125 Fed. 513 214 Beaver v. Taylor, 93 U. S. 46 336 Bedford v. Loan Assn., 181 U.S. 227 407,409 Bell Co. v. B. & O. R. R., 74 I. C. C. 433 571 Benson v. Henkel, 198 U. S. 1 154 Berube v. Horton, 199 Mass. 421 322 Berwind Co. v. United States, 9 F. (2d) 429 567,585 Bettys v. C. M. & St. P. Ry., 43 Iowa 602 325 Beuttell v. United States, 7 Cust. Appls. 356; 8 id. 409 234 Bevan v. Webb, L. R. [1905] 1 Ch. 620 649 Big Six Co. v. Mitchell, 138 Fed. 279 691 Bird v. Hall, 30 Mich. 374 648 Black v. Jackson, 177 U. S. 349 691 Black Co. v. LaCrosse, 54 Wis. 659 656 Blackwell, George W., 11L. D. 384 27 Blythe v. Hinckley, 173 U. S. 501 691 Bd. of Trade v. Olsen, 262 U. S. 1 606,703 Bd. of Trade v. United States, 246 U. S. 231 58 Bobe v. Lloyds, 10 F. (2d) 730 395 Bogan v. Mortgage Co., 63 Fed. 192 28 Bolivar v. Chalmette, 1 Woods C. C. 397 613 Bolin v. Nebraska, 176 U. S. 83 91 Bolognesi Co., In re, 254 Fed. 770 310 Booth v. Burgess, 72 N. J. Eq. 181 53 Booth v. Illinois, 184 U. S. 425 10 Booth Fisheries v.Ind. Comm., 271 U. S. 208 657,718 Bovey v. Smith, 1 Vorn. 60 647 TABLE OF CASES CITED. XXXI Page Boyd v. United States, 116 U. S. 616 524 Boyer Co. v. Coxen, 92 Md. 366 115 Boyle v. United States, 259 Fed. 803 46 Brady v. Work, 263 U. S. 435 110 Bridge Co. v. Louisville, 81 Ky. 189 231 Brig Ann, The, 9 Cr. 289 525 Brooks Co. v. R. R. Comm., 251 U. S. 396 351 Brooks Corp. v. United States, 265 U. S. 106 220,344 Brown v. Iron Co., 134 U. S. 530 199 Brown v. Pierce, 7 Wall. 205 438 Brown v. United States, 8 Cr. 110 402 Brownlow v. Schwartz, 261 U. S. 216 112 Brushaber v. Union Pac. R. R., 240 U. S. 1 542 Buck v. Kuykendall, 267 U. S. 307 143,556 Bldg. Assn. v. Bouick, 44 App. D. C. 408 154 Bulah Co. v. Pa. R. R., 20 I. C. C. 52 570 Bulkley v. Honold, 19 How. 390 619 Bullen v. Wisconsin, 240 U. S. 625 92 Burdick v. United States, 236 U. S. 79 486,488 Burke v. Trevitt, 4 Fed. Cas. No. 2163 526 Bumham v. Bowen, 111 U. S. 776 311 Bumham v. Dowd, 217 Mass. 351 53 Burnrite Coal Co. v. Riggs, 274 U. S. 208 692 Bums v. United States, 274 U. S. 328 387 Bush v. Maloy, 267 U. S. 317 556 Byrd v. State, 99 Okla. 165 549 Cadwalader v. Zeh, 151 U. S. 171 247,252 Page Cal. Powder Works v. Davis, 151 U. S. 389 90,360 Callins v. Williamson, 229 Fed. 59 212 Camfield v. United States, 167 U. S. 518 267 Camp v. Gress, 250 U. S. 308 211 Campbell v. People, 72 Colo. 213 457 Campbell v. United States, 266 U. S. 368 343 Can. Nor. Ry. v. Eggen, 252 U. S. 553 356 Cannon Co. v. Comm., 113 Oh. St. 565 556 Capital Dairy v. Ohio, 183 U. S. 238 362,363 Cargill Co. v. Minnesota, 180 U. S. 452 497 Carroll v. United States, 267 U. S. 132 524,563 Car Shortage, 121. C. C. 561 574 Car Supply, 42 I. C. C. 657 574 Carter Co., Appeal of, 1 B. T. A. 849 300 Cates v. Allen, 149 U. S. 451 690 Cattle Assn. v. M. K. & T. R. R., 11 I. C. C. 296; 13 I. C. C. 418 308 Cement Assn. v. United States, 268 U. S. 588 709 Cent. Trust Co. v. Garvan, 254 U. S. 554 402 Cent. Trust Co. v. McGeorge, 151 U. S. 129 212,213 Chaloner v. Sherman, 242 U. S. 455 337 Chamber v. Fed. Tr. Comm., 280 Fed. 45 623 Chambers v. Balto. &c. R. R., 207 U. S. 142 362 Chambers v. Robinson, 2 Stra. 691 117 Chapin v. Fye, 179 U. S. 127 91 Chapman v. Wintroath, 252 U. S.126 422,425 Cherokee v. Sou. Kan. Ry., 135 U. S. 641 687 Chi. &c. Ry. v. Coogan, 271 U. S. 472 72 XXXII TABLE OF CASES CITED. Pag® Chi. &c. Ry. v. Perry, 259 U. S. 548 362 Chi. &c. Ry. v. United States, 218 Fed. 288 691 Chi. &c. Ry. v. Wellman, 143 U. S. 339 337 Chi. & N. W. Ry. v. Dey, 35 Fed. 866 368,455 Chi. B. & Q. R. R. v. Cass, 72 Neb. 489 231 Chi. B. & Q. Ry. v. Commrs., 200 U. S. 561 654 Chi. G. W. Ry. v. Kendall, 266 U. S. 94 558,712,719 Chi. June. Case, 264 U. S. 258 351 Chi. Trust Co. v. Newman, 187 Fed. 573 213 Chobanian v. Wire Co., 33 R. I. 289 321,322 Christianson v. King, 239 U. S. 356 135 Church v. Hubbart, 2 Cr. 187 511 Church v. Ruland, 64 Pa. St. 432 647 Cinci. &c. Ry. v. Gray, 101 Fed. 623 322 Cinci. &c. Ry. v. Slade, 216 U. S. 78 360 Cinci. &c. Ry. v. Snell, 193 U. S. 30 495 Cinci. Packet Co. v. Bay, 200 U. S. 179 361,461 City of Atlanta, The, 56 Fed. 252 613 Clallam v. United States, 263 U. S. 341 259 Clark v. Brown, 119 Fed. 130 • 214,215 Clark v. McNeal, 114 N. Y. 287 648 Clark v. Nat. Oil. Co., 105 Fed. 787 212 Clarke v. White, 12 Pet. 178 691 Cleveland v. Walsh Co., 279 Fed. 57 689 Clyatt v. United States, 197 U.S. 207 341,380 Cockle v. Flack, 93 U. S. 344 408 Cockrill v. California, 268 U. S. 258 397 Page Coffin v. United States, 156 U. S. 432 258 Cohen v. Ins. Co., 50 N. Y. 610 132 Cohn v. Wausau Co., 47 Wis. 314 656 Colburn v. Woodworth, 31 Barb. 381 325 Cole v. Ralph, 252 U. S. 286 28 Cole v. Savings Soc., 124 Fed. 113 75 Collins v. Kentucky, 234 U. S. 634 455,458 Colo. Assn. v. D. & R. G. R. R., 23 I. C. C. 458 570 Columb v. Webster Co., 84 Fed. 592 322 Columbia Co. v. Duerr & Co., 184 Fed. 893 426 Comm. Elec. Co. v. Curtis, 288 Fed. 657 315 Commodity Rates, 101 I. C. C. 308 602 Commonwealth v. Crapo, 212 Mass. 209 224 Commonwealth v. Ervine, 8 Dana 30 223 Commonwealth v. O’Brien, 12 Cush. 84 10 Commonwealth v. O’Cull, 7 J. J. Marsh 149 524 Condon v. Maloney, 108 Tenn.82 391 Confiscation Cases, 20 Wall. 92 199 Connally v. Const. Co., 269 U. S. 385 368,458 Consol. Co. v. Atch. &c. Ry., 24 I. C. C. 213 570 Consol. S. W. Cases, 123 I. C. C. 203 602 Consol. T. Co. v. N. & O. Ry., 228 U. S. 596 361,362 Cont. Bank v. Werner, 36 Idaho 601 638 Cont. Tr. Co. v. Tallassee, 222 Fed. 694 691 Cooper, In re, 143 U. S. 472 517 Cope v. Cope, 137 U. S. 682 668 Coquitlam v. United States, 163 U. S. 346 156 TABLE OF CASES CITED. XXXIII Page Corbin Co. v. United States, 181 Fed. 296 74 Corfield v. Coryell, 4 Wash. C. C. 371 356 Corp. Agencies v. Home Bank, [1927] A. C. 318 479 Covington v. Bank, 198 U. S'. 100 231 Cox v. Texas, 202 U. S. 446 91 Crane v. New York, 239 U. S. 195 396 Cromwell v. County, 94 U. S. 351 319 Cromwell v. County, 96 U. S. 51 407,408 Crowell v. Randell, 10 Pet. 368 90,360 Crowley v. Christensen, 137 U. S. 86 608 Crown Co. v. Aluminum Co., 108 Fed. 845 426 Cudahy Co. v. Parramore, 263 U. S. 418 385 Cunard 8. S. Co. v. Mellon, 262 U. S. 100 511,513 Cunningham v. Brown, 265 U. S. 1 310 Curriden v. Middleton, 232 U. S. 633 ■ 689 Cusack Co. v. Chicago, 242 U. S. 526 328 Cuyahoga Co. v. Realty Co., 244 U. S. 300 711 Dahnke Co. v. Bondurant, 257 U. S. 282 86,378,385,606 Dairy Co. v. Ohio, 183 U. S. 238 91 Dartmouth Bank v. Bates, 44 Fed. 546 441 Davis v. Cleve. &c. Ry., 217 U. S. 157 617 Davis v. Farmers Equity Co., 262 U. S. 312 22 Davis v. Foley, 60 Okla. 87 554 Davis Co. v. Los Angeles, 189 U. S. 207 452 Davis v. O’Hara, 266 U. S. 314 215 Davis v. State, 68 Ala. 58 391 DeGeer v. Stone, 22 Ch. D. 243 6QP 55514°—28---III Page Del. &c. R. R. v. Yurkonis, 220 Fed. 429 323 Dent v. West Va., 129 U. S. 114 720 Dering Co. v. Dir. Gen., 62 I. C. C. 265 570 Deutsche Bank v. Humphrey, 272 U. S. 517 255,256 Dewait v. Cline, 35 Okla. 197 552 Dewey v. Des Moines, 173 U. S. 193 90,91,362 Diaz v. Patterson, 263 U. S. 399 215 Dickinson Co. v. C. & O. Ry., 60 I. C. C. 315 570 Dillard v. Hurd, 46 L. D. 51 28 Dillingham v. Moran, 81 Fed. 759; 101 Fed. 933 215 Divisions of Rates, 37 I. C. C. 265 578 Dobbins v. Los Angeles, 195 U. S. 223 452 Dodge v. United States, 272 U. S. 530 512 Dodge v. Woolsey, 18 How. 331 212 Doering v. State, 49 Ind. 56 524 Douglas v. Noble, 261 U. S. 165 720 Druggan v. Anderson, 269 U. S. 36 592 Duberley v. Gunning, 4 T. R. 654 117 Duckett v. United States, 266 U. S. 149 343 Duignan v. United States, 274 U. S. 196 691,692 Dunshee v. Standard Co., 152 la. 618 630 Duplex Co. v. Deering, 254 U. S. 443 47,48, 49,53,55,56, 58,61,62,63 Eclipse, The, 135 U. S. 599 122 Edison, In re, 30 App. D. C. 321 421 Edwards v. Chile Co., 270 U. S. 452 719 Edwards v. Elliott, 21 Wall. 532 91,362 Edwards v. Slocum, 264 U. S. 61 537 XXXIV TABLE OF CASES CITED. Page Eisner v. Macomber, 252 U. S. 189 98 Elder v. McClaskey, 70 Fed. 529 20 Eldred, In re, 46 Wis. 530 656 Eldridge v. Trezevant, 160 U. S. 452 684 Eliza, The, 8 Fed. Cas. No. 4346 510,525 Elizabeth, The, 8 Fed. Cas. No. 4352 525 Elkhart Co. v. Partin, 9 F. (2d) 393 690,692 Ellis v. Poulsen & Co., 131 Fed. 182 47 Employers’ Corp. v. Mahog- any Co., 6 F. (2d) 945 315 Engel v. Davenport, 271 U. S. 33 324,434 Eq. Trust Co. v. Cassia, 15 F. (2d) 955 637 Eq. Tr. Co. v. D. & R. G. R. R., 250 Fed. 327 689 Erb v. Morasch, 177 U. S. 584 392 Erie R. R. v. Purdy, 185 U. S. 148 90 Eubank v. Richmond, 226 U. S. 137 610 Euclid v. Ambler Co., 272 U. S. 365 327,328, 608,609,610 Ex parte 74, 58 I. C. C. 220 346 Extension of M.-S. W. Scale, 62 I. C. C. 596 601 Fair v. Brown, 40 la. 209 649 Fairchild v. Hughes, 258 U. S. 126 134 Fair Haven R. R. v. New Haven, 203 U. S. 379 390 Fairmont Co. v. B. & O. R. R., 62 I. C. C. 269 570 Fargo v. Hart, 193 TJ. S. 490 81, 82,88 Farmers Bank v. Fed. Bank, 262 U. S. 649 370 Farmers’ Co. v. Chi. &c. R. R., 118 Fed. 204 315 Farrell v. O’Brien, 199 U. S. 89 718,719,720 Farrington v. Tokushige, 273 U. S. 284 373 Page Fay, In re, 15 App. D. C. 515 421 Fed. Tr. Comm. v. Hosiery Co., 258 U. S. 483 628 Fed. Tr. Comm. v. Meat Co., 272 U. S. 554 624,625,626 Fed. Tr. Comm. v. Thatcher Co., 5 F. (2d) 615 624,625 Fenner v. Boykin, 271 U. S. 240 452 Ferguson v. Dent, 46 Fed. 88 214 Ferguson v. Peden, 33 Ark. 150 553 Fetter v. Beale, 1 Salk. 11 320 Fidelity Co. v. Trust Co., 49 Okla. 398 554 Filippon v. Slate Co., 250 U. S. 76 340 Fire Assn. v. New York, 119 U. S. 110 361 Fiske, Ex parte, 72 Cal. 125 607 Flaherty, In re, 105 Cal. 558 607 Fleischmann Co. v. United States, 270 U. S. 349 199,689 Flexner v. Farson, 248 U. S. 289. ' 355 Ford v. United States, 273 U. S. 593 514,562 Forgotston v. McKeon, 14 App. Div. 342 ' 407 Forsyth v. Vehmeyer, 177 U. S. 177 394 Ft. Smith Co. v. Board, 274 U.S. 387 397,493 Ft. Worth Co. v. Atch. &c. Ry., 80 I. C. C. 18 601 Fosdick v. Schall, 99 U. S. 235 121,310,311 Foster v. Commissioners, 100 Wash. 502 180 Fox v. Washington, 236 U. S. 273 369,458 Frances Louise, The, 1 F. (2d) 1004 514 Fraser v. McConway, 82 Fed. 257 396 Frew v. Bowers, 12 F. (2d) 625 542 Frick v. Pennsylvania, 268 U. S. 473 541 Frick v. Webb, 263 U. S. 326 397 Friendship, The, 9 Fed. Cas. 822 510 TABLE OF CASES CITED. XXXV Page Fritch v. United States, 248 U. S. 458 100,611 Frost v. R. R. Comm., 271 U, S. 583 374,497 Gallatin Co. v. L. & N. R. R., 55 I. C. C. 491 570 Gay Co. v. C. & O. Ry., 23 I. C. C. 471 570 Georgia R. R. v. Wright, 124 Ga. 596 231 Gibbons v. Mahon, 136 U. S. 549 97 Gidney v. Chappel, 241 U. S. 99 549 Gila Valley Ry. v. Hall, 232 U. S. 94 200 Gilbert v. Warren, 56 App. Div. 289 407 Girard Co. v. Lamoureux, 227 Mass. 277 647 Gitlow v. New York, 268 U. S. 652 371,373,374,386 Givens v. Zerbst, 255 U. S. 11 . 123 Gloucester Co. v. Penna., 114 U. S. 196 681 Gold v. Gold, 34 App. D. C. 229 421 Goldey v. News, 156 U. S. 518 355 Goldfield Mines v. Scott, 247 U. S. 126 302 Goldsmith v. Board, 270 U. S. 117 .110 Gompers v. Bucks Co., 221 U. S. 418 52,63 Goodrich v. Williams, 50 Ga. 425 408 Gorieb v. Fox, 274 U. S. 603 618 Grace and Ruby, The, 283 Fed. 475 514 Grand Tr. Ry. v. R. R. Comm., 231 U. S. 457 593 Grant Bros. v. United States, 232 U. S. 647 200 Graves v. Minnesota, 272 U. S. 425 370,720 Gray v. Dry Dock Co., 146 La. 826 433 Grays Harbor Co. v. Coats Co., 243 U. S. 251 726 Page Gt. Lakes Co. v. Kierejewski, 261 U. S. 479 434 Gt. Nor. Ry. v. Clara City, * 246 U. S. 434 371,390 Gt. Nor. Ry. v. Merch. Co., 259 U. S. 285 186 Green v. State, 40 Fia. 474 223 Greene v. L. & I. R. R., 244 U. S. 499 78 Greenfield v. Pa. R. R., 47 I. C. C. 403 570 Gregg v. Met. Trust Co., 197 U. S. 183 311 Grenada Co. v. Mississippi, 217 U. S. 433 54 Griffith v. Jennings, 60 I. C. C 232 570 Griffith v. Owen, L. R. [1907] 1 Ch. 195 649 Grocers Union v. Land Co., 150 Cal. 466 495 Gross v. Mortgage Co., 108 U. S. 477 361 Grossman, Ex parte, 267 U. S. 87 486,487 Grossman v. United States, 280 Fed. 683 199 Gulf &c. Ry. v. Ellis, 165 U. S. 150 493 Hadacheck v. Los Angeles, 239 U. S. 394 328 Hagar v. Reclamation Dist., Ill U. S. 701 181 Haire v. Rice, 204 U. S. 291 362,380 Hall v. Westcott, 15 R. I. 373 649 Hamilton, The, 207 U. S. 398 511 Hamilton Co. v. Massachusetts, 6 Wall. 632 91 Hanover Ins. Co. v. Harding, 272 U. S. 494 497 Hanson v. E. & N. A. R. R., 62 Me. 84 115 Hardin v. Jordan, 140 U. S. 371 655 Harkrader v. Wadley, 172 Ü. S. 148 453 Harris v. Bell, 254 U. S. 103 717 Hatcher v.. Hendrie Co., 133 Fed. 267 687 XXXVI TABLE OF CASES CITED. Page Haughan v. United States, 13 F. (2d) 75 514 Haughwout v. Murphy, 22 N. J. Eq. 531 648 Hawley v. Butler, 54 Barb. 490 524 Hayes v. Missouri, 120 U. S. 68 391 Hearst Co. v. United States, 12 Cust. Appls. 81 234 Heath v. State, 214 Pac. 1091 223 Hebert v. Louisiana, 272 Û. S. 312 719 Heim v. United States, 47 App. D. C. 485 223,224 Heisler v. Colliery Co., 260 U. S. 245 288 Henderson Co. v. Corp. Comm., 269 U. S. 278 595 Hendrick v. Maryland, 235 U. S. 610 143,356,557 Hess v. Pawloski, 274 U. S. 352 465,557,558 Hester v. United States, 265 U. S. 57 563 Hiatt v. United States, 4 F. (2d) 374 258 Hiawassee Co. v. Power Co., 252 U. S. 341 92,123,360 Hicks v. Guinness, 269 U. S. 71 255,256 Hill Co., In re, 159 Fed. 73 214 Hillsdale Co. v. Pa. R. R., 19 I. C. C. 356 . 570,571,579 Hillsdale Co. v. Pa. R. R., 23 I. C. C. 186 570 Hines Trustees v. Martin, 268 U. S. 458 135 Ho Ah Kow v. Nunan, 5 Sawy. 552 396 Holden v. Stratton, 198 U. S. 202 36 Holridge v. Gillespie, 2 Johns. Ch. 30 649 Holt v. Murphy, 207 U. S. 407 29 Home v. New York, 187 U. S. 155 361 Homestead, The, 7 F. (2d) 413 513 Page Hopkins v. Grocery Co., 105 Ky. 357 85 Hopkins v. United States, 171 U.S. 578 49,64 Horsburg v. Baker, 1 Pet. 232 689 Hotema v. United States, 186 U. S. 413 332 Houston &c. Ry. v. United States, 234 U. S. 342 599 Howat v. Kansas, 258 U. S. 181 337 Huckle v. Money, 2 Wils. 205 116 Huerfano Co. v. Colo. R. R., 28 I. C. C. 502; 41 I. C. C. 657 570 Huff v. Geis, 71 Colo. 7 28 Hull v. Burr, 234 U. S. 712 721, 722,725 Hunter v. Pittsburgh, 207 U. S. 161 91 Hurt v. Hollingsworth, 100 U. S. 100 687 Hygrade Co. v. Sherman, 266 U.S. 497 452,459 Ill. Cent. R. R. v. Coal Co., 238 U. S. 275 91,123 Ih. Cent. R. R. v. I. C. C., 206 U. S. 441 581 Ill. Cent. R. ' R. v. Util. Comm., 245 U. S. 493 603 Industrial Assn. v. United States, 268 U. S. 64 46,64 Ind. Mach. Corp., In re, 251 Fed. 484 214,215 Int. Harv. Co. v. Kentucky, 234 U. S. 216 368, 455,458,459,460 Int. Harv. Co. v. Kentucky, 234 U. S. 579 23 T.C. C. v. Ill. Cent. R. R., 215 U. S. 452 570,573,578,580,583 I. C. C. v. Union Pac. R. R., 222 U. S. 541 351 Ira M. Hedges, The, 218 U. S. 264 469,471 Iron Co. v. Sullivan, 3 F. (2d) 794 115 Irregularities, In re, 25 I. C. C. 286 570 Irr. Dist. v. Bradley, 164 U. S. 112 181 TABLE OF CASES CITED. XXXVII Page Jacks v. Cent. Coal Co., 156 Ark. 211 492 Jacks v. Chaffin, 34 Ark. 534 553 Jackson Light Co., In re, 269 Fed. 223 443 Jacobson v. Massachusetts, 197 U. 8. 11 207 Jacoby v. Pa. R. R., 19 I. C. C. 392 570 James v. Appel, 192 U. 8. 129 549 James-Dick. Co. v. Harry, 273 U. 8. 119 370 James G. Swan, The, 50 Fed. 108; 77 Fed. 473 517 Jarnagin v. Travelers Assn., 133 Fed. 892 75 Jay Baking Co. v. Bryan, 264 U. S. 504 374 Jefferson Bank v. Eborn, 84 Ala. 529 115 Jeffersonville R. R. v. Rogers, 38 Ind.116 115 Jeffrey Co. v. Blagg, 235 U. 8. 571 606 Johnson v. C. B. & Q. R. R., 195 Mo. 228 391 Johnson v. Elevator Co., 119 U. 8. 388 617 Johnson v. People, 72 Colo. 218 457 Johnson v. Sullivan, 8 F. (2d) 988 675 Johnston v. Jones, 1 Black 209 336 Jolly v. United States, 170 U. S. 402 283 Jones v. Prairie Co., 274 U. 8. 195 691 Joyce v. Dyer, 189 Mass. 64 20 Julian v. Cent. Trust Co., 193 U. 8. 93 315 Junction R. R. v. Ashland, 12 Wall. 226 407,408 Kane v. New Jersey, 242 U. 8. 160 23,143,356,557 Kate, Freights of, 63 Fed. 707 470,472 Kaukauna Co. v. Green Bay, 142 U. S. 254 655 Kearney v. Case, 12 Wall. 275 198 Page Keech v. Sandford, Sei. Cas. *61 649 Keeney v. New York, 222 U. 8. 525 541 Keighley Co., Appeal of, 2 B. T. A. 10 300 Keller v. Pot. Elec. Co., 261 U. 8. 428 131,154 Kelley v. Oregon, 273 U. S. 589 723 Kenaday v. Sinnott, 179 U. S. 606 96 Kendall v. United States, 12 Pet. 524 416 Kennedy v. Babcock, 19 Misc. 87 132 Kennedy v. Daly, 1 Sch. & L. 355 > 647 Ky. Finance Co. v. Auto Exch., 262 U. S. 544 495 Keokee Co. v. Taylor, 234 U. S. 224 370 Keokuk Co. v. Illinois, 175 U. 8. 626 91,362 Kezer v: Clifford, 59 N. H. 208 649 Kilbourn v. Sunderland, 130 U. 8. 505 199 Kilgore v. Norman, 119 Fed. 1006; 120 Fed. 1020 691 Kinnane v. Creamery Co., *255’ U. 8. 102 458 Kirksey v. Bates, 7 Port. 529 524 Knatchbull v. Hallett, 31 Ch. Div. 696 310 Knickerbocker v. Stewart, 253 U. S. 149 431,434 Knowlton v. Moore, 178 U. S. 41 537,542 Knoxville v. Sou. Pav. Co., 220 Fed. 236 687,690 Kreigh v. Westinghouse Co., 214 U. S. 249 212 Kynerd v. McCarthy, 3 F. (2d) 32 213 Lacassagne v. Chapuis, 144 U. S. 119 689 Lackawanna Co. v. Trust Co., 176 U. S. 298 311 Lacov, In re, 142 Fed. 960 214 Lafayette Co. v. French, 18 How. 404 357 XXXVIII TABLE OF CASES CITED. Page Lake Mines v. Lord, 271 U. S. 577 289 Lake Shore Ry. v. Prentice, 147 U. S. 101 115 L. S. & M. R. R. v. People, 46 Mich. 193 231 Lamar v. United States, 240 U. S. 60 471 Lambert Co. v. B. & 0. R. R., 258 U. S. 377 581 Lancaster v. Oil Co., 241 U. S. 551 691,692 Land Co. v. Hoffman, 268 U. S. 276 130 Land Co. v. San Jose Co., 189 U. S. 177 361 La Ninfa, The, 75 Fed. 513 517 Larsen v. 150 Bales, 147 Fed. 783 470,472 Law v. United States, 266 U. S. 494 199,689 Lawlor v. Loewe, 235 U. S. 522 63 Lawrence v. St. L. &c. Ry., 274 U. S. 588 • 598,603 Lawson v. New York S. S. Co., 148 La. 290 431 Leary v. Col. Nav. Co., 82 Fed. 775 213 Leather Workers v. Herkert, 265 U. S. 457 47,48,64 Lee v. Cent. Ga. Ry., 252 U. S. 109 395 Lee v. United States, 14 F. (2d) 400 514 Lehon v. Atlanta, 242 U. S. 53 712 Lent v. Tillson, 140 U. S. 316 130 Lewellyn v. Frick, 268 U. S. 238 539,541 Lewis v. Cocks, 23 Wall. 446 690 Lewis v. Naval Stores, 119 Fed. 391 213 Liberty Co. v. Condon Bank, 260 U. S. 235 689,692 Liberty Co. v. Grannis, 273 U. S. 70 . 134 Liggett Co. v. United States, 274 U. S. 215 344 Lincoln v. Williams Corp., 229 N. Y. 313 610 Lindsley v. Nat. Gas. Co., 220 U. S. 61 369,493 Page Lion Surety Co. v. Karatz, 262 U. S. 640 211,214 Littlejohn v. United States, 270 U. S. 215 402 Loewe v. Lawlor, 208 U. S. 274 46,48,51,63 Logan v. Jelks, 34 Ark. 547 553 Long Sault Co. v. Call, 242 U. S. 272 655 Lord v. Steamship Co., 102 U. S. 541 511 Louisville v. Tel. Co., 224 U. S. 649 14 L. & N. R. R. v. Greene, 244 U. S. 522 78 L. & N. R. R. v. Rice, 247 U. S. 201 471 L. & N. R. R. v. United States, 258 U. S. 374 514 Lumber Assn. v. United States, 234 U. S. 600 54 Lurie v. Pinanski, 215 Mass. 229 649 Lynch v. Al worth Co., 267 U. S. 364 303 Magruder v. Drury, 235 U. S. 106 200 Maguire v. Mortgage Co., 203 Fed. 858 210,213 MaHarry v. Batman, 29 Okla. 46 552 Mallett v. Nor. Car., 181 U. S. 589 391 Manchester v. Mass., 139 U. S. 240 511 Manhattan Co. v. Cohen, 234 U. S. 123 . 363 Manuel v. Wulff, 152 U. S. 505 28 Marianna Flora, The, 11 Wheat. 1 511,525,563 Marr v. Marr, 110 Pa. St. 60 406 Martin v. West, 222 U. S. 191 617 Marvin v. Trout, 199 U. S. 212 91,361 Mason v. Missouri, 179 U. S. 328 391 Mason v. United States, 244 U. S. 362 264 Massachusetts v. Mellon, 262 U. S. 447 134 TABLE OF CASES CITED. XXXIX Page Massachusetts v. New York, 271 U. S. 65 655 Masses Pub. Co. v. Patten, 244 Fed. 535 376 Massingill v. Downs, 7 How. 760 437,441 Matthews’ Sons, In re, 238 Fed. 785 310 Maul v. United States, 274 U. S. 501 562 Mayor v. State, 15 Md. 376 524 McCaa Co. v. C. & C. Ry., 301. C. C. 531; 33 I. C. C. 128 570 McClung v. Pulitizer Co., 279 Mo. 370 495 McCready v. Virginia, 94 U. S. 391 397 McDaniel v. Sprick, 297 Mo. 424 647,648 McDermott, In re, 180 Cal. 783 378 McDermott v. Severe, 202 U. S. 600 336 McDonald v. Mabee, 243 U. S. 90 355 McGuire v. United States, 273 U. S. 95 563 McKelvey v. United States, 260 U. S. 353 267 McLaren v. Fleischer, 256 U. S. 477 27 McNitt v. Turner, 16 Wall. 352 335 Memphis v. Chi. &c. Ry., 39 I. C. C. 256 ; 43 I. C. C. 121; 451. C. C. 487 600 Memphis v. St. L. &c. Ry., 39 I. C. C. 224 600 Memphis S. W. Inves., 77 I. C. C. 473 599,600,601,602 Merino, The, 9 Wheat. 391 504 Merrick v. Halsey, 242 U. S. 568 11 Merry v. Abney, Freem. C. C. 151 647 Merwin v. Houghton, 146 Wis. 398 655 Messenger v. Anderson, 225 U. S. 436 215 Met. St. Ry. v. New York, 199 U. S. 1 392 Page Meyer v. Nebraska, 262 U. S. 390 373 Meyersdale Co. v. B. & O. R. R., 62 I. C. C. 429; 69 I. C. C. 74 570 Mich. Sou. R. R. v. People, 9 Mich. 448 231 Mich. Util. Comm. v. Duke, 266 U. S. 570 557 Middleton v. Light Co., 249 U. S. 152 392 Middletown Bk. v. Bacharach, 46 Conn. 513 649 Miedreich v. Lauenstein, 232 U. S. 236 362 Milbourn Co. v. Davis Co., 270 U. S. 390 713 Miles v. Safe Dep. Co., 259 U. S. 247 401 Müler v. Board, 195 Cal. 477 327 Müler v. Oregon, 273 U. S. 657 464 Müler v. Strahl, 239 U. S. 426 369,458 Müler v. Tiffany, 1 WaU. 298 407,408 Müls v. Green, 159 U. S. 651 112 Müner v. United States, 228 Fed. 431 642 Milwaukee &c. Ry. v. Kellogg, 94 U. S. 469 75 Mil. Elec. Ry. v. Müwaukee, 252 U. S. 100 390 Mine Workers v. Coronado Co., 259 U. S. 344 46,47,48,64 Mine Workers v. Coronado Co., 268 U. S. 295 48,64 Mining Co. v. Fulton, 205 U. S. 60 116 Mining Co. v. Tunnel Co., 196 U. S. 337 28 Minnesota v. Hitchcock, 185 U. S. 373 36 Minister v. Smith, [1927] A. C. 193 264 Missouri v. Lewis, 101 U. S. 22 391 Missouri Ry. v. Mackey, 127 U. S. 205 391 Mo. & Kan. Ry. v. Olathe, 222 U. S. 185 716 XL TABLE OF CASES CITED. Page Mo. Pac. Ry. v. Coal Co., 256 U. 8. 134 362 Mo. Pac. Ry. v. Larabee Co., 211 U. S. 612 144 Mobile Elec. Co. v. Fritz, 200 Ala. 692 115 Montague v. Lowry, 193 U. 8. 38 47,64 Montague v. McDowell, 99 Pa. St. 265 405 Montana v. Rice, 204 U. 8. 291 91 Montana Ry. v. Warren, 137 U. S. 348 200 Moore v. Crawford, 130 U. 8. 122 647 Moore v. Fidelity Co., 272 U. 8. 317 556 Moores v. Union, 23 Wkly. Cin. L. Bull. 48 53 Morris v. Duby, 274 U. S. 135 557 Mountain Co. v. Washington, 243 U. 8. 219 115 Mugler v. Kansas, 123 U. S. 623 371 Mullan v. United States, 118 U. S. 271 642,646 Munro v. Railroad, 155 Mo. App. 710 322 Murdock v. Memphis, 20 Wah. 590 380 Murphy v. California, 225 U. S. 623 397 Murphy, Jeremiah H., 4 L. D. 467 25 Murphy v. United States, 68 Fed. 908; 72 Fed. 1008 250 Murphy v. United States, 272 U. 8. 630 198 Muskrat v. United States, 219 U. 8. 346 134 Nash v. United States, 229 U. S.373 363,459,460,463,464 Natal v. Louisiana, 139 U. S. 621 725 Natchez v. L. & A. Ry., 52 I. C. C. 105 600 Nat. Assn. v. Fed. Tr. Comm., 268 Fed. 705 623 Nat. Bank v. Commonwealth, 9 WaU. 353 362 Page Nat. Bank v. Ins. Co., 104 U. 8. 54 310 Nat. Co. v. B. & O. R. R., 28 I. C. C. 442; 30 I. C. C. 725 570 Nat. Trust Co. v. Hibbs, 229 U. 8. 391 479 Nevada Ry. v. Burrus, 244 U. 8. 103 395 New Albany Co. v. Banking Co., 122 Fed. 776 212 New Eng. Div. Case, 261 U. 8. 184 33,36,583 New Jersey v. Sargent, 269 U. S. 328 134,490 New Orleans v. Bank, 167 U. 8. 371 230,237 Newport v. Commonwealth, 106 Ky. 434 231 New York v. Kleinert, 268 U. S. 646 90,360 New York v. Steam-Boat Co., 22 Fed. 801 619 New York &c. Ry. v. New York, 165 U. 8. 628 392 N. Y. Cent. R. R. v. Hudson, 227 U. 8. 248 681 N. Y. Cent. R. R. v. United States, 212 U. 8. 500 332 N. Y. Cent. R. R. v. White, 243 U. 8. 188 115,116 N. Y. Dock Co. v. Poznan, 274 U. 8. 117 310 N. Y. Ins. Co. v. Edwards, 271 U. 8. 109 401 Nickel v. Cole, 256 U. 8. 222 655,656 Nisseqogue, The, 280 Fed. 174 120 Nor. & West. Ry. v. Conley, 236 U. 8. 605 351 Nor. & West. Ry. v. Earnest, 229 U. S. 114 335 Norris V. Irr. Dist., 248 Fed. 369 181 N. Amer. Land Co. v. Watkins, 109 Fed. 101 213 Nor. Assn. v. Pa. R. R., 60 I. C. C. 569 570 Nor. Assn. v. Pitts. &c. R. R., 68 I. C. C. 167 570 TABLE OF CASES CITED. XLI Page Nor. Car. R. R. v. Zachary, 232 U. S. 248 362 Nor. Coal Co. v. M. & O. R. R., 55 I. C. C. 502 570 Nor. Pac. Ry. v. Boyd, 228 U. S. 482 313 Nor. Pac. Ry. v. Dept., 268 U. S. 39 351 Nor. Pac. Ry. v. Nor. Dak., 236 U. S. 585 351,386 Nor. Trac. Co. v. Ohio, 245 U. S. 574 14 Norton v. Larney, 266 U. S. 511 191 Norton v. Whiteside, 239 U. S. 144 721,722,725 O’Brien, Ex parte, [1923] 2 K. B. 361 377 Okla. Comm. v. A. & S. Ry., 98 I. C. C. 183 600,601,602 Old Jordan Co. v. Societe, 164 U. S. 261 200 Oliver Co. v. Lord, 262 U. S. 172 288,606 Oliver Co. v. Mexico, 264 U. S. 440 183,185 Omaeche^ arria v. Idaho, 246 U. S. 343 368,458,459 Omaha v. Water Co., 218 U. Si 180 82 Ormsby v. Webb, 134 U. S. 47 96 Orr v. Allen, 245 Fed. 486; 248 U. S. 35 181 Osceola, The, 189 U. 8. 158 324,434 Otis v. Parker, 187 U. 8. 606 11 Over The Top, The, 5 F. (2d) 838 514 Owen v. Sioux City, 91 la. 190 391 Owens Co. v. Kanawha Co., 259 Fed. 838 74 Owensboro v. Tel. Co., 230 U. 8. 58 14 Oxley Co. v. Butler, 166 U. S. 648 363 Packard v. Banton, 264 U. 8. 140 452,557 Packer v. Bird, 137 U. S. 661 655 Palmer v. Texas, 212 U. 8. 118 214 Page Panama, The, 6 F. (2d) 326 514 Panama R. R. v. Johnson, 264 U. S. 375 324,434 Panama R. R. v. Vasquez, 271 U. 8. 557 324,434 Park v. N. Y. &c. R. R., 140 Fed. 799 315 Parks v. Bankers Corp., 140 Fed. 160 213 Patsone v. Penna., 232 U. 8. 138 370,396,397 Patterson v. Rousney, 58 Okla. 185 554 Paul v. Virginia, 8 Wall. 168 356,717 Paxson v. Cunningham, 63 Fed. 132 120 Payne v. N. Y. S. & W. R. R., 201 N. Y. 436 322 Pearce v. Sutherland, 164 Fed. 609 213 Pembina Min. Co. v. Penna., 125 U. S. 181 717 Pennoyer v. Neff, 95 U. S. 714 355 Penna. Coal Co. v. Mahon, 260 U. S. 393 374 Penna. Ins. Co. v. Mining Co., 243 U. S. 93 355,357,498 Penna. R. R. v. Minds, 250 U. S. 368 336 Penna. Steel Co. v. N. Y. Ry., 198 Fed. 721 215 Penna. Steel Co. v. N. Y. Ry., 208 Fed. 168; 216 Fed. 458 121 People v. Apostolos, 73 Colo. 71 457 People v. Boyd, 67 Cal. App. 292 223 People v. Jacobs, 165 App. Div. 721 223 People v. Keeler, 29 Hun. 175 524 People v. Lloyd, 304 Ill. 23 369 People v. McCrory, 41 Cal. 458 224 People v. Ruthenberg, 229 Mich. 315 369 People v. Ryan, 82 Cal. 617 223 People v. Scott, 6 Mich. 287 332 People v. Steelik, 187 Cal. 361 369,372 XLII TABLE OF CASES CITED. People V. Steinmetz, 240 N. Y. 411 - 223 Peoria Ry. v. United States, 263 U. S. 528 581 Perego v. Dodge, 163 U. S. 160 198,199,689 Peters v. Veasey, 251 U. S. 121 431 Peyton v. Heinekin, 131 U. S. Appendix ci 407 Phebe, The, 1 Ware 354 121 Phillips v. Grand Trunk Ry., 236 U. S. 662 313 Phillips v. Phillips, L. R. 29 Ch. Div. 673 649 Phillips v. United States, 286 Fed. 631 318 Phillis v. Gross, 32 S. D. 438 648 Phoenix Ins. Co. v. Tenn., 161 U. S. 174 231 Piano Workers v. Supply Co., 124 in. App. 353 53 Pictonian, The, 3 F. (2d) 145 514 Piedmont Co. v. Graham, 253 U. S. 193 718,719,720 Pierce v. Nat. Bank, 268 Fed. 487 689 Pierce v. Society, 268 U. S. 510 373 Pierce v. United States, 255 U. S. 398 123 Pipe Line Cases, 234 U. S. 548 575 Pittsburgh &c. Ry. v. Backus, 154 U. S. 421 81 Pizitz Co. v. Yeldell, 274 U. S. 112 720 Plymouth Co. v. Penna., 232 U. S. 531 606 Poirier v. Terceiro, 224 Mass. 435 74 Porterfield v. Webb, 263 U. S. 225 396 Port Richmond Co. v. Hud- son, 234 U. S. 317 681 Price v. Illinois, 238 U. S. 446 328 Private Cars, Matter of, 50 I. C. C. 652 574 Procter Co. v. United States, 225 U. S. 282 575 Page Prosser v. Finn, 208 U. S. 67 26,28 Prout v. Starr, 188 U. S. 537 453 Pub. Ser. Co. v. Durham, 261 U. S. 149 390,391,392 Pullman Co. v. Richardson, 261 U. S. 330 87 Purity Co. v. Lynch, 226 U.S. 192 11 Purvis v. Brotherhood, 214 Pa. St. 348 53 Pusey Co. v. Hanssen, 261 U. S. 491 210,691 Quinn v. Heisel, 40 Mich. 576 524 Quon Quon Poy v. Johnson, 273 U. S. 352 99 Radice v. New York, 264 U. S. 292 328 Rail Co. v. B. & O. R. R., 14 I. C. C. 86 570,571 Railroad v. Rock, 4 Wall. 177 360 R. R. Comm. v. Hocking Ry., 121. C. C.398 570,571,574,579 Rast v. Van Deman, 240 U. S. 342 11,328 Rates on R. R. Fuel, 36 I. C. C. 1 578 Reading Co. v. Koons, 271 U. S. 58 715 Real Silk Co. v. Portland, 268 U. S.335 723 Realty Co., Appeal of, 1 B. T. A. 355 300 Rector v. City Bank, 200 U. S. 405 361 Red Ball Co. v. Marshall, 8 F. (2d) 635 557 Reduced Rates, 1922, 68 I. C. C. 676 346 Reid v. Hart, 45 Ark. 41 551 Rex v. Secretary, [1923] 2 K. B. 361 377 Reynes v. Dumont, 130 U. S. 354 175,670 Richardson v. Harmon, 222 U. S. 96 36 Richmond R. R. v. Freeman, 97 Ala. 289 114,115 Riddle Co. v. B. & O. R. R., 1 I. C. C. 608 569 TABLE OF CASES CITED. XLIII Page Riddle Co. v. N. Y. &c. R. R., 11. C. C. 594 569 Riddle Co. v. P. & L. E. R. R., 11. C. C. 374 569 Righter v. Phila. Whse. Co., 99 Pa. St. 289 406 Risty v. C. R. I. & P. Ry., 270 U.S. 378 125,131,637 Road Dist. v. St. L. S. W. Ry., 257 U. S. 547 134 Roberts Co. v. Emmerson, 271 U. S. 50 717 Robertson v. Salomon, 130 U. S. 412 245,247,252 Robert W. Parsons, The, 191 U. S. 17 472 Robins Dock Co. v. Dahl, 266 U. S. 449 434 Rogers v. Durant, 106 U. S. 644 689 Rolph, The, 299 Fed. 52 322 Root v. Woolworth, 150 U. S. 401 647 Rosalie M., The, 4 F. (2d) 815 513 Rowntree v. Sloan, 45 App. D. C. 207 426 Royal Co. v. Sou. Ry., 13 I. C. C. 440 571 Rules, In re, 95 I. C. C. 309 574 Sabine, The, 101 U. S. 384 472,613 Sagatind, The, 11 F. (2d) 673 514 St. Paul, The, 271 Fed. 265 122 St. Louis &c. R. R. v. Cleve. &c. Ry., 125 U. S. 658 121 St. Louis &c. Ry. v. Mills, 271 U. S. 344 73,75 St. Louis &c. Ry. v. Taylor, 210 U. S. 281 116 St. Louis &c. Ry. v. Taylor, 266 U. S. 200 23 St. Louis &c. Ry. v. Wayne, 224 U. S. 354 385 St. L. S. W. Ry. v. Arkansas, 235 U. S. 350 717 Salton Sea Cases, 172 Fed. 792 691 San Antonio Ry. v. Wagner, 241 U. S. 476 711 San Cristobal, The, 215 Fed. 615 613 Page Sandlin v. Barker, 95 Okla. 113 554 Sands v. Davis, 40 Mich. 14 20 Sanitary Dist. v. United States, 266 U. S. 405 489 Santa Clara v. Sou. Pac. R. R., 118 U. S. 394 493 Santa Fe R. R. v. Work, 267 U. S. 511 110 Sauer v. New York, 206 U. S. 536 655,657 Sault Ste. Marie v. Int. Tr. Co., 234 U. S. 333 682 Sav. &c. Ry. v. Savannah, 198 U. S. 392 392 Savannah R. R. v. Shearer, 58 Ala. 672 114 Sawyer, In re, 124 U. S. 200 452 Saxonville v. Russell, 116 U. S. 13 508 Scattergood v. Pipe Co., 249 Fed. 23 213 Scheffer v. Railroad Co., 105 U. S. 249 75 Schenck v. United States, 249 U. S. 47 373 Schmelzer v. Kansas City, 295 Mo. 322 131,134 Scholey v. Rew, 23 Wall. 331 541 Schroeder v. Young, 161 U. S. 334 691 Schutt v. Large, 6 Barb. 373 647 Schuyler v. Littlefield, 232 U. S. 707 310 Schwab v. Doyle, 258 U. S. 529 539 Schweinfurth v. Ry. Co., 60 Oh. St. 215 322 Scott v. Neely, 140 U. S. 106 689 Seaboard Ry. v. Duvall, 225 U. S. 477 380 Seaboard Ry. v. Padgett, 236 U. S. 668 718,719, 720 Seaboard Ry. v. United States, 261 U. S. 299 220,344 Second Empi. Liab. Cases, 223 U. S. 1 116 Sec. Nat. Bk. v. Nat. Bk., 242 U. S. 600 711 See v. Fisheries Co., 9 F. (2d) 235 213 XLÎV TABLE OF CASES CITED. Page Seeberger v. Cahn, 137 U. S. 95 250 Selover Co. v. Walsh, 226 U. S'. 112 91,362 Senn v. Southern Ry., 135 Mo. 512 322 Sharon v. Tucker, 144 U. S. 533 132 Shelby v. Rhodes, 105 Miss. 255 20 Sherlock v. Alling, 93 U. S. 99 619 Shields v. Ohio, 95 U. S. 319 390 Shields v. Thomas, 18 How. 253 647 Shrew v. Jones, Fed. Cas. No. 12818 441 Shulthis v. McDougal, 225 U. S. 561 721,722,725 Sidway v. Mo. Land Co., 101 Fed. 481 213 Silver v. Ladd, 7 Wall. 219 19 Simmons Co. v. Doran, 142 U. S. 417 691 Singer Co. v. Benedict, 229 U.S? 481 175 Sioux Ry. v. Sioux City, 138 U. S. 98 390 Skinner Co. v. United States, 249 U. S. 557 580 Small Co. v. Sugar Co., 267 U. S. 233 463 Smith v. Apple, 264 U. S. 274 185 Smith v. Maryland, 18 How. 71 619 Smith v. Mo. Pac. Ry., 56 Fed. 458 322 Smith v. Taylor, 23 L. D. 440 27 Smith v. Wilson, 273 U. S. 388 556 Smyer v. United States, 273 U. S. 333 279 Smyth v. Ames, 169 U. S. 466 82,493 South v. Maryland, 18 How. 396 524 Sou. Assn. v. L. & N. R. R., 58 I. C. C. 348 570 Sou. Ry. v. Bush, 122 Ala. 470 114 Sou. Ry. v. Steel Co., 176 U. S. 257 121 Page Sou. Ry. v. United States, 222 U. S. 20 259 Sou. Ala. R. R. v. Sullivan, 59 Ala. 272 114 Sou. Oil Co. v. Elliote, 218 Fed. 567 310 Sou. Pac. Co. v. Bogert, 250 U. S. 483 314 Sou. Pac. Co. v. I. C. C., 219 U. S. 433 33 Sou. Pac. Co. v. Jensen, 244 U. S.205 431 Sou. Pac. Co. v. United States, 200 U. S. 341 691,692 Sou. Wis. Ry. v. Madison, 240 U. S. 457 390 Spüler v. A. T. & S. F. Ry., 253 U. S. 117 308 Spring Co. v. United States, 12 F. (2d) 852 332 Spring Ins. Co. v. Amusement Co., 178 Fed. 519 692 Stan. Oü Co. v. United States, 221 U. S. 1 56,58,461 Stanislaus v. San Joaquin, 192 U. S. 201 390 Stark v. Starr, 94 U. S. 477 320 State v. Adams, 45 la. 99 674 State v. Amer. Ref. Co., 108 La. 603 231 State v. Bank, 95 Tenn. 221 231 State v. Brunst, 26 Wis. 412 524 State v. Carta, 90 Conn. 79 223 State v. Coston, 113 La. 717 224 State v. Dawson, 264 U. S. 219 431 State v. De Lorenzo, 81 N. J. L. 613 524 State v. Dews, R. M. Charlt. 397 524 State v. Hennessy, 114 Wash. 351 369,370 State v. Laundy, 103 Ore. 443 369,370 State v. Maresca, 85 Conn. 509 224 State v. Meyers, 99 Mo. 107 223 State v. Nicholas, 46 Mont. 470 224 State v. Reichman, 135 Tenn. 653 524 State v. Stephens, 71 Mo. 535 224 TABLE OF CASES CITED. XLV Page Stay ton v. Riddle, 114 Pa. St. 464 405 Steamship Co. v. Commrs., 113 U. S. 33 337 Stebbins v. Riley, 268 U. S. 137 370 Steele v. Steele, 220 Ill. 318 20 Steiner Co., Appeal of, 1 B. T. A. 821 300 Stewart, John J., 9 L. D. 543 27 Stewart v. Masterson, 131 U. S. 151 691 Stoehr v. Wallace, 255 U. S. 239 402 Stone Co. v. United States, 4 Cost. Appls. 47 234 Stone Co. v. United States, 12 Cust. Appls. 62 229, 239 Stone Co. v. United States, 43 Treas. Dec. 141 238 Stone Co. v. United States, 45 Treas. Dec. 167 230 Strange v. Board, 173 Ind. 640 391 Stratton’s Ind. v. Howbert, 231 U. S. 399 302 Svor v. Morris, 227 U. S. 524 19 Swaney v. B. & O. R. R., 49 I. C. C. 345 570 Swang v. State, 2 Coldw. 212 223 Swift v. Gas. Co., 244 Fed. 20 315 Swift v. Hoover, 242 U. S. 107 158 Swift Co. v. Fed. Tr. Comm., 8 F. (2d) 595 624,625 Swift Co. v. Hock. Vai. Rv., 243 U. S. 281 ' 575 Swift Co. v. United States, 196U. S. 375 46,54,64 Swiss Ins. Co. v. Miller, 267 U. S. 42 402 Swiss Oil Corp. v. Shanks, 273 U. S. 407 289,370,392 Talbert v. Singleton, 42 Cal. 390 647 Taylor v. Kelly, 56 N. C. 240 648 Taylor v. Taintor, 16 Wall. 366 453 Taylor v. United States, 3 How. 197 523 Page Tedrow v. Lewis Co., 255 U. S. 98 458 Tefft Co. v. Munsuri, 222 U. S. 114 158 Tenement Dept. v. Moeschen, 179 N. Y. 325 391 Terrace v. Thompson, 263 U. S. 197 396,452 Texas v. I. C. C., 258 U. S. 158 134 Tex. & Pac. Ry. v. Abilene Co., 204 U. S. 426 309 Tex. & Pac. Ry. v. Rigsby, 241 U. S. 33 116 Thomas v. Cincinnati Ry., 62 Fed. 803 53 Thomas v. West. Car Co., 149 U. S.95 121 Thomsen v. Cayser, 243 U. S. 66 630 Thomson Co. v. Brown, 89 N. J. Eq. 326 55 Thompson v. Maxwell, 95 U. S. 391 647 Thompson v. R. R. Cos., 6 Wall. 134 689 Tiburcio Parrott, In re, 1 Fed. 481 396 Tilden v. Blair, 21 Wall. 241 123,408 Todd v. United States, 158 U. S. 278 455 Toledo Ry. v. Penna. Co., 54 Fed. 730 53 Toop v. Land Co., 237 U. S. 580 718,719,720 Tozer v. United States, 52 Fed. 917 368,455 Traer v. C. & A. R. R., 13 I. C. C. 451 570,571,574, 579 Traer v. C. B. & Q. R. R., 14 I. C. C. 165 570 Transportes v. Almeida, 265 U. S. 104 183,185 Traphagen v. Levy, 45 N. J. Eq. 448 132 Trask v. H. & N. H. R. R., 2 Allen 331 320 Tregea v. Irr. Dist., 164 U. S. 179 133 Troxell v. D. L. & W. R. R., 227 U. S. 434 322,323 XLVI TABLE OF CASES CITED. Page Troy Bank v. Wilcox, 24 Wis. 671 647 Truax v. Corrigan, 257 U. S. 312 493 495 Truax v. Raich, 239 U. S. 33 396 Trust Co. v. Ill. Cent. R. R., 205 U. S. 46 212 Tully v. Fitchburg R. R., 134 Mass. 499 74 Turner v. Holtzman, 54 Md. 148 524 Turner v. Sawyer, 150 U. S. 578 20 Tuttle v. Buck, 107 Minn. 145 630 Tutun v. United States, 270 U. S. 568 132 Tyson v. Banton, 273 U. S. 418 10 Underwriter, The, 13 F. (2d) 433 561 Union Co. v. Morrison, 125 U. S. 591 311 Union Oil Co. v. Smith, 249 U. S. 337 28 Union Pac. R. R. v. Comm., 248 U. S. 67 655 Union Tank Co. v. Wright, 249 U. S. 275 81,83,88 United States v. A. & S. Ry., 265 U. S. 274 351,583 United States v. Addyston Co., 85 Fed. 271; 175 U. S. 211 460,461 United States v. Ann, 15 Fed. Cas. No. 8397 525 United States v. Ann, 26 Fed. Cas. No. 15611 525 United States v. Amer. Tob. Co., 221 U. S. 106 56,58 United States v. Anderson, 269 U. S. 422 103,105 United States v. Archibald, 4 F. (2d) 587 199 United States v. B. & O. R. R., 26 D. C. App. 581 154 United States v. Bayaud, 23 Fed. 721 224 United States v. Bell Co., 167 U. S. 224 422,424,426 United States v. Bengochea, 279 Fed. 537 514 Page United States v. Bentley, 12 F (2d) 466 514 United States v. Biwabik Co., 247 U. S. 116 302 United States v. Bowman, 260 U.S. 94 511,513,520 United States v. Boynton, 297 Fed. 261 199 United States v. Brewer, 139 U.S. 278 368,455 United States v. Bridge Co., 245 U. S. 337 135 United States v. Brims, 272 U.S. 549 52,64 United States v. Cal. Land Co., 192 U. S. 355 319 United States v. Cap. Trac. Co., 34 App. D. C. 592 455 United States v. Chandler, 229 U. S. 53 657 United States v. Cohen Co., 255 U. S. 81 368, 454,457,458,459,460,463 United States v. Cornell Co., 202 U. S. 184 122,611 United States v. D. & H. Co., 213 U. S. 366 575 United States v. Dunn, 268 U. S. 121 648 United States v. Ferger, 250 U. S. 199 259 United States v. Ford, 272 U. S. 321 263 United States v. Freeman, 3 How. 556 668 United States v. Freight Assn., 166 U. S. 290 461 United States v. Gaffney, 10 F. (2d) 694 199,200 United States v. Gray, 77 Fed. 908 517 United States v. Hearst Co., 49 Treas. Dec. 854 234 United States v. Henning, 7 F. (2d) 488; 13 F. (2d) 74 514 United States v. Holt Bank, 270 U. S. 49 655 United States v. Ill. Cent. Ry., 263 U. S. 515 584 United States v. Inv. Co., 264 U. S. 206 191 United States v. Klumpp, 169 U. S. 209 249,251,252 TABLE OF CASES CITED. XLVII Page United States v. Koenig Co., 270 U. S. 512 581 United States v. La Jeune, 26 Fed. Cas. No. 15551 525 United States v. Lanza, 260 U. S. 377 258 United States v. Leary, 245 U. S. 1 310 United States v. Lee, 274 U. S. 559 514 United States v. Macdaniel, 7 Pet. 1 524 United States v. Mfg. Co., 112 U. S. 645 343 United States v. McNeil, 267 U. S. 302 689 United States v. Mich. Co., 270 U. S. 521 581 United States v. Moser, 266 U. S. 236 319 United States v. N. Amer. Co., 253 U. S. 330 344 United States v. N. 0. Pac. Ry., 248 U. S. 507 650 United States v. New River Co., 265 U. S. 533 580,581 United States v. Penna. R. R., 242 U. S. 208 455 United States v. Pub. Co., Fed. An.-Tr. Cas. 359 630 United States v. Pugh, 99 U. S. 265 27 United States v. Reading Co., 226 U. S. 324 58 United States v. Reese, 92 U. S. 214 455 United States v. Ref. Co., 234 Fed. 964 630 United States v. River Co., 269 U. S. 411 340 United States v. Schwartz, 1 F. (2d) 718 199 United States v. Sharp, 27 Fed. Cas. 1041 455 United States v. Shoe Co., 247 U. S. 32 65 United States v. Sischo, 262 U. S. 165 263 United States v. 67 Packages, 17 How. 85 508 United States v. Stafoff, 260 U. S. 477 263 Page United States v. Steel Corp., 251 U. S. 417 65,708,709 United States v. Stock Yard Co., 226 U. S. 286 575 United States v. Stone Co., 12 Cust. Appls. 557 239 United States v. Sweet, 245 U. S. 563 642,646 United States v. T. & C. R. R., 176 U. S. 242 200 United States v. Terminal Assn., 224 U. S. 383 58 United States v. Tingey, 5 Pet. 115 524 United States v. Tobacco Co., 221 U. S. 106 461 United States v. Traffic Assn., 171 U. S. 505 461 United States v. Trenton Co., 273 U.S. 392 58,462 United States v. 1250 Cases, 292 Fed. 486 514 United States v. U. Pac. R. R., 169 Fed. 65 612 United States v. Walter, 263 U. S. 15 259 United States v. Whited, 246 U. S. 552 650 United States v. Wilson, 118 U. S. 86 690 United States v. Wong Ark, 169 U. S. 649 660,670 U. S. Loan Co. v. Harris, 113 Fed. 27 ' 408 Vajtauer v. Cornrnr., 273 U. S. 103 264 Vandalia R. R. v. Pub. Ser. Comm., 242 U. S. 255 144 Van Oster v. Kansas, 272 U. S. 465 116 Van Norden v. Morton, 99 U. S. 378 689 Van Vleet v. Sledge, 45 Fed. 743 408 Va. Coal Co. v. Cent. R. R., 170 U. S. 355 121 Virginian Ry. v. Mullens, 271 U. S. 220 92 Virginian Ry. v. United States, 272 U. S. 658 34, 584,596,603 Virtue v. Freeholders, 38 Vroom 139 524 XLVIII TABLE OF CASES CITED. Page Vulcan Co. v. Ill. Cent. R. R., 33 I. C. C. 52 570 Wabash Ry. v. College, 208 U. S.38 315 Wabash R. R. v. Hayes, 234 U. S. 86 323 Wakeman v. Kingsland, 46 N. J. Eq. 113 132 Wallace v. Hines, 253 U. S. 66 81,83,88 Walston v. Nevin, 128 U. S. 578 391 Ward v. Foulkrod, 264 Fed. 627 213 Ward v. Krinsky, 259 U. S. 503 385 Ward v. Love, 253 U. S. 17 654,655 Ward v. Maryland, 12 Wall. 418 356 Wash. Sec. Co. v. United States, 234 U. S. 76 191 Waskey v. Hammer, 223 U. S. 85 27 Water Power Cases, 148 Wis. 124 656 Waters Oil Co. v. Texas, 212 U. S. 86 458,463 Waterworks Co. v. Vicksburg, 185 U. S. 65 55 Watson v. Turnbull, 34 La. An. 856 684 Wayman v. Southard, 10 Wheat. 1 ' 437 Wayne Co. v. Dir. Gen., 92 I. C. C. 3 571 Weaver v. Palmer Bros., 270 U. S. 402 374 Webb v. O’Brien, 263 U. S. 313 396 Weeds v. United States, 255 U. S. 109 458 Weeks v. United States, 232 U. S.383 561 Weiland v. Irrigation Co., 259 U. S. 498 125 Welch v. Swasey, 214 U. S. 91 608,609 Wells, Ex parte, 18 How. 307 487 Wentworth Co., In re, 191 Fed. 821 214 Werlein v. New Orleans, 177 U. S. 390 320 Page West v. Rutledge Co., 244 U. S. 90 200 West v. Timber Co., 244 U. S. 90 336 West Chi. R. R. v. Chicago, 201 U. S. 506 654 West. & A. R. R. v. Comm., 267 U. S. 493 593,595 West. Chem. Co. v. United States, 271 U. S. 268 34,580 West. N. Y. Ry. v. Penn Ref. Co., 137 Fed. 343 315 Westfall v. United States, 274 U. S. 256 397 White v. Meeh. Sec. Corp., 269 U. S. 283 402 White v. State, 51 Ga. 286 223,224 White’s Bank v. Smith, 7 Wall. 646 618 Whitehead v. Galloway, 249 U. S. 79 548 Whitehead v. Shattuck, 138 U. S. 146 691 Whiting v. Trust Co., 234 N. Y. 394 480 Whitney v. California, 274 U. S. 357 331,387 Wiborg v. United States, 163 U. S. 632 341,380 Wildes’ Sons, In re, 133 Fed. 562 407 Wiley v. United States, 40 Ct. Cis. 406 516 Wilford v. Berkeley, 1 Burr. 610 117 Wilkes-Barre Co., In re, 235 Fed. 807 '214,215 Willamette Valley, The, 66 Fed. 565 120 Williams v. Benedict, 8 How. 107 438 Williams v. Eggleston, 170 U. S. 304 391 Williams v. Fowler, 22 How. Prac. 4 407 Williams v. Gibbes, 17 How. 239 315 Williams v. United States, 138 U. S. 514 644,646 Wilhams v. Western Union, 93 N. Y. 162 97 TABLE OF CASES CITED. XLIX Page Williams v. Williams, 118 Mich. 477 „ 647 Willis v. Banking Co., 169 U. S. 295 549 Willow Club v. Wade, 100 Wis. 86 655,656 Wilson v. Eureka, 173 U. S. 32 607 Wilson v. McNamee, 102 U. S. 572 91,511 Windsor v. Whitney, 95 Conn. 357 610 Winnebago, The, 205 U. S. 354 617,619 Winslow v. Stokes, 48 N. C. 285 325 Wintroath v. Chapman, 47 App. D. C. 428 426 Wisconsin v. Eau Claire, 40 Wis. 533 656 Wis. Imp. Co. v. Lyons, 30 Wis. 61 655,656 Wis. R. R. Comm. v. C. B. & Q. R. R., 257 U. S. 563 36 Wixon v. Cleveland, 164 Wis. 189 391 Wolff Co. v. Court, 262 U. S. 522 10 Wolverton v. Baker, 86 Cal. 591 325 Wong Tai v. United States, 273 U. S. 77 335 55514°—28---IV Page Wong Wai v. Williamson, 103 Fed. 1 396 Wood v. Gunston, Style 466 117 Wood v. United States, 16 Pet. 342 508 Woodbridge v. United States, 263 U. S. 50 426 Woodhaven Co. v. Pub. Ser. Comm., 269 U. S. 244 390 Worthington v. Abbott, 124 U. S. 434 247 Wright Co. v. United States, 236 U. S. 397 650 Wright v. Ynchausti, 272 U. S. 640 416 Wulfsohn v. Burden, 241 N. Y. 288 610 Yick Wo., v. Hopkins, 118 U. S. 356 396,607 Young, Ex parte, 209 U. S. 123 452,453 Young America, The, 30 Fed. 789 120 Y. M. C. A. v. Davis, 264 ■ U. S. 47 537 Yost v. Critcher, 112 Va. 870 648 Zahn v. Board, 274 U. S. 325 608 Zeckendorf v. Steinfeld, 225 U. S. 445 212 Zucht v. King, 260 U. S. 174 370 TABLE OF STATUTES Cited, in Opinions (A) Statutes of the United States Page 1789, July 31, c. 5, 1 Stat. 29, § 26........ 504,521,522 1789, September 24, c. 20, 1 Stat. 73 (Judiciary Act), § 9 ...... 432,504 1790, March 26, c. 3, 1 Stat. 103, § 1............ 661 1790, April 30, c. 9, 1 Stat. 112, § 8........ 516,520 1790, August 4, c. 35, 1 Stat. 145, § 31..........510,514,521 § 50............. 504,522 §§ 62,63......... 509,514 § 64 ... 509,514,521,527 § 65............. 509,514 1793, February 18, c. 8, 1 Stat. 305, § 1..................616 § 8.................. 521 § 27......... 515,521,522 § 32 ............... 521 1794, March 22, c. 11, 1 Stat. 347, § 1........ 516,520 1794, March 26, 1 Stat. 400.. 518 1794, May 22, c. 33, 1 Stat. 369 ................ 518 1794, June 5, c. 50, 1 Stat. 381..................519 1795, January 29, c. 20, 1 Stat. 414, § 4.......662 1796, May 27, c. 31, 1 Stat. 474 ................ 518 1798, June 13, c. 53, 1 Stat. 565 ............... 519 1798, June 18, c. 54, 1 Stat. 566 ............... 662 1798, June 25, c. 58, 1 Stat. 570 ................ 518 1799, February 9, c. 2, 1 Stat. 613..................519 Page 1799, March 2, c. 22, 1 Stat. 627, § 54..............510,514 § 70.......... 505,514,522 § 99 .................. 527 §§ 97-102 ........ 509,514 1800, February 27, c. 10, 2 Stat. 7...............519 1800, May 10, c. 51, 2 Stat. 70....................519 1802, April 14, c. 28, 2 Stat. 153, § 4............. 662 1803, February 28, c. 10, 2 Stat. 205 ........... 518 1805, March 3, c. 42, 2 Stat. 342, § 3..............519 1806, February 28, c. 9, 2 Stat. 351............ 519 1806, April 18, c. 29, 2 Stat. 379 518 1807, March 2, c. 22, 2 Stat. 426 ................. 518 1807, December 22, c. 5, 2 Stat. 451............ 518 1808, April 25, c. 66, 2 Stat. 499, § 7..............518 1809, January 9, c. 5, 2 Stat. 506 ................. 519 1809, March 1, c. 24, 2 Stat. 528 ................. 518 1812, April 4, c. 49, 2 Stat. 700 ................. 518 1812, July 6, c. 129, 2 Stat. 778 ................. 520 1813, August 2, c. 57, 3 Stat. 84................... 519 1813, December 17, c. 1, 3 Stat. 88............. 518 1815, February 4, c. 31, 3 Stat. 195.............519 LI LU TABLE OF STATUTES CITED. Page 1817, March 1, c. 22, 3 Stat. 347 .................. 520 §§ 2^.....................516 1817, March 1, c. 31, 3 Stat. 351................... 519 1817, March 3, c. 39, 3 Stat. 361................... 519 1818, April 18, c. 70, 3 Stat. 432 .................. 519 1818, April 20, c. 88, 3 Stat. 447 .................. 519 1818, April 20, c. 91, 3 Stat. 450, §§ 2, 4...........516 1819, March 2, c. 46, 3 Stat. 488 .................. 519 1819, March 3, c. 77, 3 Stat. 510.................. 519 §§1,4.....................516 1819, March 3, c. 101, 3 Stat. 532 .................. 518 § 1......................516 1820, May 15, c. 113, 3 Stat. 600 .................. 516 1820, May 15, c. 122, 3 Stat. 602 .................. 520 1823, March 1, c. 22, 3 Stat. 740 .................. 520 1825, March 3, c. 107, 4 Stat. 132 .................. 520 1828, May 19, c. 68, 4 Stat. 278, § 37............. 437 1831, March 2, c. 66, 4 Stat. 472 .................. 520 1832, July ’ 13,’ c.’ *204, 4 Stat. 577 . . . 518 1838, March 10, c. 31, 5 Stat. 212....................519 1838, July 7, c. 191, 5 Stat. 304 .................. 519 1847, February 22, c. 16, 9 Stat. 127, § 2.........519 1850, July 29, c. 27, 9 Stat. 440, § 1.............. 617 1852, August 31, c. 113, 10 Stat. 121, § 5........ 518 1855, March 3, c. 213,10 Stat. 715....................519 1861, March 2, c. 88, 12 Stat. 246, § 12..............422 1861, July 13, c. 3, 12 Stat. 255, § 7.............. 518 1861, August 5, c. 48, 12 Stat. 314 . *................519 Page 1862, February 19, c. 27, 12 Stat. 340............. 519 1864, May 5, c. 78, 13 Stat. 63, § 2................519 1864, July 4, c. 249, 13 Stat. 390, § 7...............519 1866, May 26, 14 Stat. 357.. 519 1866, July 18, c. 201, 14 Stat. 178 .................. 505 § 2....................522 1868, July 27, c. 273, 15 Stat. 240, §§ 6, 7.........517 1870, July 1, c. 189, 16 Stat. 180...................517 1870, July 8, c. 230, 16 Stat. 198, § 32............ 422- 1871, February 28, c. 100, 16 Stat. 440, §§ 1, 45.... 519 1872, June 8, c. 335, 17 Stat. 283, §§ 235-237....... 518 1878, June 20, c. 359, 20 Stat. 206 .................. 517 1879, March 3, c. 182, 20 Stat. 377 ............ 517 1882, May 6, c. 126, 22 Stat. 58, § 10...............520 1883, March 3, c. 121, 22 Stat. 488 .......... 248,249,250 1884, March 1, c. 9, 23 Stat. 3..................... 144 1884, May 17, c. 53, 23 Stat. 24.................... 157 1884, July 5, c. 220, 23 Stat. 115, § 10..............520 1885, February 10, c. 71, 10 Stat. 604, §§ 1, 2....664 1887, February 4, c. 104, 24 Stat. 379 (Interstate Commerce Act), § 1...................... 34 par. 10 .......... 577,578 par. 11............... 577 par. 12.. 576,577,578,583 par. 14 ...... 576,577,578 par. 15.............. 572 pars. 10-17............576 § 3................... 583 8 6.............. 32,35,36 § 8....................309 § 15 ........... 32,34,583 § 16.............. 307,309 1887, February 23, c. 210, 24 Stat. 409 ............ 520 TABLE OF STATUTES CITED. LIÏÎ Page 1887, March 3, c. 359,24 Stat. 505 (Tucker Act).... 611 1888, May 9, c. 231, 25 Stat. 135 ..................280 1888, August 1, c. 729, 25 Stat. 357, § 1............ 438,440,444 § 2.....................439 § 3................ 439,444 1889, March 2, c. 415, 25 Stat. 1009, § 3............ 517 1890, May 2, c. 182, 26 Stat. 81, §§ 30, 31, 32.... 548 1890, May 9, c. 200, 26 Stat. 105 ................. 250 1890, June 10, c. 407, 26 Stat. 131, § 12............ 232 1890, July 2, c. 647, 26 Stat. 209 (Sherman Act)... 42, 271,694 § 6.....................520 1890, August 30, c. 839, 26 Stat. 414, § 6...... 520 1890, October 1, c. 1244, 26 Stat. 567 ........... 249 par. 380............... 248 1891, March 3, c. 517,26 Stat. 826, § 6.................. 232 § 15.............. 156,157 1891, March 3, c. 561,26 Stat. 1095, § 8............645 1893, February 9, c. 74, 27 Stat. 434 ........... 156 1893, February 15, e. 114, 27 Stat. 449 ........... 520 1894, April 6, c. 57, 28 Stat. 52, §§ 11, 12........ 517 1894, July 16, c. 138, 28 Stat. 107, §§ 8, 10.........642 1894, August 18, c. 301, 28 Stat. 372 (Carey Act), § 4................. 632 1894, August 27, c. 349, 28 * Stat. 509 .... 248,271,274 § 73............... 274,276 § 74 .............. 274,275 par. 297.... 249,250,251 1895, January 16, c. 24, 28 Stat. 624, § 3....... 509 1895, March 1, c. 145, 28 Stat. 693 ........... 548 Page 1895, March 2, c. 180, 28 Stat. 813..............439 1896, March 6, c. 49, 29 Stat. 54.................... 518 1896, June 11, c. 420, 29 Stat. 413 .................. 632 1896, June 11, c. 424, 29 Stat. 458 ................ 280 1897, February 24, c. 313, 29 Stat. 594 ............ 267 1897, March 3, c. 391, 29 Stat. 692 .................. 422 1897, June 7, c. 4, 30 Stat. 96, § 4............... 519 1897, July 24, c. 11, 30 Stat. 151 .............. 248,249 1897, December 29, c. 3, 30 Stat. 226, § 8........ 517 1899, March 3, c. 429, 30 Stat. 1253 (Alaska Criminal Code), § 4......................487 §§ 173-183 .............. 517 1901, March 3, c. 854, 31 Stat. 1189 (District of Columbia Code), § 61.................... 153 §§62*84.................. 154 1902, May 22, c. 821, 32 Stat. 203, 2................. 24 1902, July 1, c. 1362, 32 Stat. 641, § 22 ........ 499,548 1903, February 11, c. 544, 32 Stat. 823 (Expediting Act).................. 694 1903, February 14, c. 552, 32 Stat. 825 ........... 527 § 10.................... 526 1906, April 19, c. 1640, 34 Stat. 123, §§1-3...., 516 1906, May 12, c. 2454, 34 Stat. 190 ..'......... 517 1906, May 28, c. 2566, 34 Stat. 204, § 1........ 519 1906, June 14, c. 3299, 34 Stat. 263, § 4........ 517 1906, June 16, c. 3335, 34 Stat. 267 (Okla. Enabling Act), §§ 19,20.. 549 1906, June 20, c. 3442, 34 Stat. 313............. 516 LIV TABLE OF STATUTES CITED. Page 1906, June 29, c. 3591, 34 Stat. 584 (Carmack Amendment)............309 1907, March 2, c. 2534, 34 Stat. 1229, § 6.......667 1907, March 4, c. 2911, 34 Stat. 1286 .......... 549 1908, April 22, c. 149, 35 Stat. 65 (Employers Liabil- ity Act)......... 323,324 § 1.....................324 1909, February 9, c. 100, 35 Stat. 614............ 520 1909, March 4, c. 321, 35 Stat. 1088 ......... 516 1909, August 5, c. 6, 36 Stat. 11 .............. 248,249 § 29 .............. 232,233 1910, April 21, c. 182, 36 Stat. 326, § 2............. 516 1910, April 21, c. 183, 36 Stat. 326 ................. 517 1910, June 9, c. 268, 36 Stat. 462, § 7............. 519 1910, June 25, c. 428, 36 Stat. 854 ................. 694 1910, June 25, c. 431, 36 Stat. 855, § 6..............266 1912, August 13, c. 287, 37 Stat. 302, §§ 1, 9....520 1912, August 24, c. €73, 37 Stat. 499, § 9....... 517 1912, August 24, c. 390, 37 Stat. 560 (Panama Canal Act).........32,35 1913, February 12, c. 40, 37 Stat. 667 ....... 271,274 1913, March 4, c. 141, 37 Stat. 736 ........... 528 1913, October 3, c. 16, 38 Stat. 114 .... 230,303,304 par. 287 .............. 238 pars. 294, 300, 303 ... 234 par. 650 .............. 238 § II, B............U.. 263 1913, October 22, c. 32, 38 Stat. 208 (Urgent Deficiencies Act)...... 567 1913, December 23, c. 6, 38 Stat. 251 (Federal Reserve Act), § 9.......258 1914, January 17, c. 9, 38 Stat. 275 ........... 520 Page 1914, June 24, c. 124, 38 Stat. 387 .......... 516 1914, August 15, c. 253, 38 Stat. 692 ....... 516,518 1914, August 22, c. 267, 38 Stat. 703 ....... 229,232 1914, September 26, c. 311, 38 Stat. 717 (Fed. Trade Comm. Act)........... 149 § 4............... 150,151 § 5 ..... 150,169,170,620, 623,626,627,628,630 § 6... 166,168,170,171,172 § 9... 152,168,170,171,172 § 10.............. 171,173 1914, October 15, c. 323, 38 Stat.730 (ClaytonAct), §§2,3.................. 170 §7... 155,156,160,625,626 § 8............... 155,170 § 11.. 155,170,624,625,626 § 15.................. 624 § 16................... 55 § 17.................. 595 § 19.............. 591,598 § 20................... 50 1914, December 17, c. 1, 38 Stat. 785 (Harrison Narcotic Act), § 1.......... 292,293,294 § 6...................293 § 9...................294 1915, January 28, c. 20, 38 Stat. 800, § 1.... 509,514 1915, March 3, c. 90, 38 Stat. 956, § 274.......... 689 1916, June 3, c. 134, 39 Stat. 166 ................ 220 1916, July 11, c. 241, 39 Stat. 355 ............. 140,141 1916, August 23, c. 397, 39 Stat. 531........... 440 1916, August 29, c. 416, 39 , Stat. 545 (Jones Act), §§ 3, 8, 24.............412 § 25...................413 1916, August 29, c. 418, 39 Stat. 619...........342 1916, September 8, c. 463, 39 Stat. 756, Tit. 1.................296 § 5(a).................298 § 12(a)........... 100,104 TABLE OF STATUTES CITED. LV Pag* 1916, September 8, c. 463, 39 Stat. 756—Continued. § 13............ 100,101,104 § 202................... 539 § 703................... Ill § 708........... 108,109,110 § 806................... 519 1917, March 4, c. 180, 39 Stat. 1168..............218 1917, June 15, c. 29, 40 Stat. 182.....................218 1917, June 15, c. 30, 40 Stat. 217, Tit. II...................519 Tit. V............. 516,519 1917, June 21, c. 32, 40 Stat. 232, § 3............... 258 1917, August 10, c. 53, 40 Stat. 276 (Lever Act), § 4.......................454 § 10......................342 1917, October 3, c. 63, 40 Stat. 300...... 100,296 1917, October 6, c. 106, 40 Stat. 411 (Trading with Enemy Act).... 399 1918, March 28, c. 28, 40 Stat. 459.............. 400 1919, February 24, c. 18, 40 Stat. 1057 ........ 292,293 § 234 .................. 400 § 401................... 534 § 402 . 532,533,534,539,542 § 403 .................. 535 § 408 .............. 535,539 § 409 .......... 536,539,540 1919, February 26, c. 48, 40 Stat. 1181............279 1919, February 28, c. 69, 40 Stat. 1189........... 140 1919, July 11, c. 6, 41 Stat. 35 .................... 400 1919, October 22, c. 80, 41 Stat. 297, § 2.454 1919, October 28, c. 85, 41 Stat. 305 (National Prohibition Act), 8 3..................... 560 § 21.................... 196 § 22................ 196,197 § 23........ 197,198,199,200 Page 1920, February 25, c. 85, 41 Stat. 437, § 18................ 16,17 § 32.................. 18 1920, February 28, c. 91, 41 Stat. 456 (Transportation Act), § 402............. 572,576 § 418................32,34 § 500.................. 36 1920, June 2, c. 218, 41 Stat. 731, § 1.............330 1920, June 5, c. 241, 41 Stat. 977 ............ 254,400 1920, June 5, c. 250, 41 Stat. 988 (Merchant Marine Act).................616 § 20 ................. 324 § 30...................617 § 33 ............. 324,434 1921, May 27, c. 14, 42 Stat. 9 .............. 230,242 par. 18 ............. 237, 238,243,246,247,253 par. 19 ....... 237,243,253 1921, November 9, c. 119, 42 Stat. 212 (Federal Highway Act)........ 140 1921, November 23, c. 134, 42 Stat. 222, § 5...... 263 1921, November 23, c. 136, 42 Stat. 227, § 213..................263 §§ 223,253 ............ 262 § 600 ................ 263 §§ 1005,1006 .......... 293 1922, July 1, c. 274, 42 Stat. 821 ................ 258 1922, September 14, c. 305, 42 Stat. 837.... 186,187 1922, September 21, c. 356, 42 Stat. 858....... 505, 507,521,526 § 315..... 107,108,110,111 § 581 ...... 506,510,514, 523, 527,528,529,563 §§ 591,593 ............ 560 § 642................. 527 1923, March 4, c. 285,42 Stat. 1511.................400 1924, June 2, c. 234, 43 Stat. 253, § 202(b).......297 Lvi TABLE OF STATUTES CITED. Page 1924, June 7, c. 316, 43 Stat. 604, § 7............ 519 1925, February 13, c. 229, 43 Stat. 936.......... 100, 139, 140, 150, 187, 330, 337, 418, 449, 499, 556, 598, 658, 694, 716, 720, 721, 724, 726. § 1...................469 § 13................. 187 § 14......... 187,188,469 1925, February 16, c. 235, 43 Stat. 948 (Home Port Act), § 2........... 617 1926, February 26, c. 27, 44 Stat. 9, § 202(b)....298 1926, May 7, c. 252, 44 Stat. 406 ................ 400 1927, March 2, c. 273, 44 Stat. 1335 ......... 423 Constitution. See Index at End of Volume. Revised Statutes. § 452.................. 26 § 648................. 198 § 649............. 198,686 § 700............. 198,700 § 734 ................ 504 § 1010.................500 § 1014................. 154 § 1536 ............... 516 § 1993 .............. 659, 660,664,667-674 § 1999 ............... 671 § 2000 ............... 671 § 2001................ 671 § 2318................ 642 § 2320................. 28 § 2759................ 517 § 2760............ 514,527 § 2761............ 514,527 § 2762................ 527 § 2763 ............... 514 §§ 2747-2765 .......... 509 88 3009-3014........... 232 § 3059 ......... 505,507, 510,522,523, 527,529 § 3067 ............. 505, 507,510,514,527 § 3069............... 514 § 3070............... 514 8 3072 ..... 505,507-510, 512,514,522,527,562 Page Revised Statutes—Contd. § 3846 ................ 279 § 3964................. 144 § 4192................. 616 § 4233................. 680 § 4311................. 616 § 4320 ................ 509 § 4321................. 509 § 4324................. 509 § 4336 ................ 509 § 4337 ........ 503,508,521 8 4371................. 509 § 4377 ............ 503,508 § 4426 ................ 680 § 4886................ 424 § 4894............. 419,422 § 5209................. 258 §§ 5283-5287 ........... 516 § 5596 ................ 522 § 5600 ................ 508 Criminal Code. 8 53 .................. 266 § 215................. 221 Judicial Code. § 3(b)............ 399 8 24............. 100,197 8 28.............. 134 8 45.................. 504 § 128............. 125 § 145 ................. 343 § 166............. 139 8 177 ............. 343,344 8 195............. 229 8 237 ................. H4, 359,385,389,394, 500, 501,653,716,720,721 8 238 ............ 140,185, 186,187,330,337,449, 469,567,598, 667,694 8 239 .............. 293,418 8 240........... 149,399,658 8 241............... 125,197 § 250.................... HO § 256 .................. 433 8 263 .................. 595 § 266 ...... 556,590,595,596 Alaska Criminal Code... 487,517 Carey Act....................032 Carmack Amendment............309 Clayton Act.............. 50-55, 155,156,170,591,595,598, 624,625,626. TABLE OF STATUTES CITED. LVII Page District of Columbia Code.. 153, 154 Employers Liability Act.... 22, 323,324,433 Expediting Act.............694 Federal Highway Act....... 140 Federal Trade Commission Act................ 149-152, 166,168-173,620,623,626, 627,628,630. Harrison Narcotic Act.. 292-294 Home Port Act..............617 Interstate Commerce Act. 32-36, 307,309,572,576,578,583 Judiciary Act.......... 432,504 Page Jones Act.............412,413 Lever Act.............. 342,454 Merchant Marine Act..... 324, 434,616,617 National Prohibition Act... 196-200,263,520,560 Oklahoma Enabling Act.....549 Panama Canal Act.......32,35 Sherman Act............... 42 50-55,271,520,628,694 Trading with the Enemy Act. 399 Transportation Act..... 32-36, 572,576 Tucker Act............... 611 (B) Statutes of the States and Territories Alabama. 1923 Code, § 5696...... 113 Arkansas. Const., Art. XII, § 6.... 390 1919 Acts, No. 571.. 388,389 1919 Sp. Acts, No. 588.. 190 § 10................... 195 1921 Acts, No. 124..... 388 1921 Sp. Acts, No. 626.. 190 1923 Acts, No. 680. 389 1923 Sp. Acts, No. 109.. 190 Rgv. Code, § 147... 551 1921 Crawf. & Moses Dig. §§ 1152, 1171, 1174, 1176.......... 492 § 1826............ 491 § 1829............ 492 Mansfield’s Dig. Chs. 20, 40, 73... 548 Ch. 97......... 548,552 § 3509...... 551,552 §§ 3510,3511....... 551 § 4471...... 548,553 § 4476.......... 553 California. 1919 Stats., c. 58..... 359 - c. 188 (Syndicalism Act) § 1..... 330,359 § 2... 330,360,368 § 4.............378 Colorado. 1913 Laws, c. 161..... 449, 453,455,457,460 § 1.................456 Idaho. Gen. Laws, c. 136, § 2996 . 632 1919 Comp. Stats. § 3019....... 637,640 § 3040 ...... 639,640 § 3042........... 639 §§ 3045,3046,5631.. 640 Kansas. 1920 Laws, Sp. Sess., c. 37 (Syndicalism Act). 381 §§ 1,3............ 382 Kentucky. Stats., §§ 4077-4081.... 78 Louisiana. 1913 Const., Art. 6....429 1914 Acts, No. 20..... 429, 430,431,433 § 31................430 § 34............... 431 Rev. Civ. Code, Arts. 455, 457,665.............. 684 Art. 2315 ........ 429, 430,431,432,433 Massachusetts. 1923 Stats., c. 431, § 2.. 354 Gen. Laws, c. 90.......' 353 c. 231, § 120....... 67 Minnesota. 1909 Laws, c. 468 ..... 4 1921 Laws, c. 305, § 1.. 3,4 1923 Laws, c. 120....3,4 Gen. Stats., § 3907..... 3 LVIII TABLE OF STATUTES CITED. Page Missouri. 1919 Rev. Stats., § 1180............. 22 §§ 1554-1556... 440,444 § 2436............ 131 New York. Consol. Laws, § 65...........615-618 § 66...............615 Ohio. 1896, April 21, 92 Oh. Ls. 204............... 13 1921 Comp. Stats., c. 3, Art. XIV..............687 Gen. Code § 614-87......... 556 § 614-94..... 556,557 § 614-99......... 557 § 614-101........ 558 § 614-102........ 558 §§ 614-84 to 614- 102 ............ 555 Oklahoma. Const., §§ 1, 2, 23.... 550 1921 Comp. Laws, §§ 3482-3485,5548.. 590 Oregon. 1917 Laws, c. 194, § 28.. 141 c. 237, § 5....... 141 1921 Laws, c. 371, § 2...............465 § 35............. 141 § 36............. 142 Pennsylvania. 1920 Stats., §§ 12491, 12492 ............... 405 Page Philippine Islands. 1907 Comp. Acts, §2947.. 410 Gen Laws, § 2442........ 416 Adm. Code, Acts ,Nos. 2711,2832 ........... 411 Act No. 3066, §§ 490, 491..... 414 §§492,494,495,497.. 415 § 588.......... 413,414 Act No. 3109.........412 Utah. 1896 Laws, c. 80.... 642 Virginia. 1924 Acts, March 20.... 205 Washington. 1923 Laws, c. 46, §§ 4407, 4408,4410-4412,4414-4416,4422,4435-1.... 177 § 4421............. 180 § 4439-6........... 178 Rem. Comp. Stats., c. 6, Tit. 27............... 177 West Virginia. 1925 Laws, c. 1, § 2.... 285, 286,287,289 Wisconsin. 1841 Laws, No. 9......'. 652 1849 Rev. Stats, c. 34... 652 1858 Rev. Stats, c. 41, § 2...................652 1898 Stats, c. 70, § 1596. 652 1925 Stats., § 30.01(2)......... 652 §§ 31.02,31.07..... 652 § 31.09.... 652,653,657 § 31.25............ 656 (C) Treaties I (Great Britain). 393,395 1827, August 6, 8 Stat. 361 (Great Britain)......393 1911, February 11, 37 Stat. 1504 (Japan).........396 1911, July 7, 37 Stat. 1452 (Convention)......... 517 1921, August 24, 42 Stat. 105 (Austria).............256 1924, January 23, 43 Stat. 1761 (Great Britain). 530 1924, May 19, 43 Stat. 1815 (Germany)............ 530 1924, May 22, 43 Stat. 1830 (Sweden)............. 530 1924, May 24, 43 Stat. 1772 (Norway)............ 530 1924, May 29, 43 Stat. 1809 (Denmark)........... 530 1924, June 3, 43 Stat. 1844 (Italy)............. 530 1924, June 6, 43 Stat. 1875 (Panama).............530 1924, August 21, 44 Stat. — (Netherlands)........530 1926, March 11, 44 Stat. — (Cuba)................530 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1926. FAIRMONT CREAMERY COMPANY v. MINNESOTA. ERROR TO THE SUPREME COURT OF THE STATE OF MINNESOTA. No. 725. Argued February 23, 1927.—Decided April 11, 1927. 1. A state law (G. S. Minn., § 3907) punishing anyone engaged in the business of buying milk, cream, or butter fat for manufacture or sale, who discriminates between different localities of the State by buying such commodities in one locality at a higher price than he pays for the same commodity in another locality, allowance being made for any difference in actual cost of transportation from locality of purchase to that of manufacture or sale—infringes the liberty of contract guaranteed by the Fourteenth Amendment. P. 8. 2. Such a sweeping inhibition can not be sustained as a means of preventing some buyers from attempts to destroy competition or secure a monopoly in the business "by paying excessive prices. P. 9. 3. It is the duty of the Court to inquire into the real effect of any statute duly challenged because of interference with freedom of contract, and to declare it invalid when it has no substantial relation to any evil which the State has power to suppress but is a clear infringement of private rights. P. 11. 168 Minn. 381, reversed. Error to a judgment of the Supreme Court of Minnesota sustaining a conviction of the Creamery Company of “ unfair discrimination ” in purchasing butter fat for 5-5514°—28-----1 1 2 OCTOBER TERM, 1926. Argument for Defendant in Error. 274U.S. manufacture and sale. See also, 162 Minn. 146, and 168 Minn. 378. Mr. Leonard A. Flansburg, with whom Messrs. E. J. Hainer, George A. Lee, and M. S. Hartman were on the brief, for plaintiff in error. Mr. Charles E. Phillips, Assistant Attorney General of Minnesota, with whom Mr. Clifford L. Hilton, Attorney General, was on the brief, for defendant in error. The federal Constitution does not guarantee to the individual absolute freedom of contract. Miller v. Wilson, 236 U. S. 373; Schmidinger v. Chicago, 226 U. S. 578; Chicago Co. v. McGuire, 219 U. S. 549; Williams v. Evans, 139 Minn. 32. Statutes making it an offense to discriminate in prices between different localities, when “ intent ” or “ purpose ” to create a monopoly or to destroy competition is made an ingredient thereof, have been uniformly sustained. Central Lumber Co. v. South Dakota, 226 U. S. 157; State v. Drayton, 82 Neb. 254; State v. Bridgeman, etc. Co., 117 Minn. 186; State n. Standard Oil Co., Ill Minn. 85; State v. Fairmont Creamery, 153 la. 702; State v. Rocky Mountain Elev. Co., 52 Mont. 487. Such a statute was enacted in Minnesota in 1909 (c. 468, Ls. 1909), and remained in force until the enactment of c. 120, Ls. 1923, here involved. Its validity was sustained in State v. Bridgeman, etc., Co., supra. In sustaining it the court found existing evils justifying this exercise of police power. In 1923 the legislature amended the law by striking therefrom the ingredient of intent or motive, thus making it an offense to discriminate in prices between localities, except as affected by the cost of transportation, whether done for the purpose of creating a monopoly or destroying competition or not (chapter 120). It was designed to meet and correct the same evils as the old statute. It must be assumed that in the judg- FAIRMONT CO. v. MINNESOTA. 3 1 Opinion of the Court. ment of the legislature the remedy prescribed by the old law was ineffectual to accomplish the desired results. The State, having found the old law ineffective to prevent the evil because of the almost impossibility of proving by competent evidence that price discrimination between localities was for the purpose of creating a monopoly, determined in its legislative judgment to prohibit discrimination between localities without regard to intent or motive. A particular transaction, though lawful in and of itself, and although there inheres in it no purpose of creating a monopoly or destroying a competitor, may be prohibited if it be reasonably necessary so to do to suppress a substantial evil within the police power of a State to correct. Booth v. Illinois, 184 U. S. 425; Otis v. Parker, 187 U. S. 606; Purity Extract Co. v. Lynch, 226 U. S. 192; Geer v. Connecticut, 161 U. S. 519; New York v. Hester-berg, 211 U. S. 31; State v. Shattuck, 96 Minn. 45; Merrick v. Halsey Co., 242 U. S. 568; Rast v. Van Deman & Lewis Co., 240 U. S. 342; Frisbie v. United States, 157 U. S. 160. Mr. Justice McReynolds delivered the opinion of the Court. The Supreme Court of Minnesota sustained the conviction of plaintiff in error, a corporation of that State charged with violating § 1, Chapter 305, Laws 1921, as amended by Chapter 120, Laws 1923 (Minn. G. S. § 3907), which follows— “Any person, firm, co-partnership or corporation engaged in the business of buying milk, cream or butterfat for manufacture or for sale of such milk, cream or butterfat, who shall discriminate between different sections, localities, communities or cities of this State, by purchasing such commodity at a higher price or rate in one locality than is paid for the same commodity by said person, 4 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. firm, co-partnership or corporation in another locality, after making due allowance for the difference, if any, in the actual cost of transportation from the locality of purchase to the locality of manufacture or locality of sale of such milk, cream or butterfat, shall be deemed guilty of unfair discrimination, and, upon conviction thereof, shall be punished by a fine not exceeding one hundred dollars, or by imprisonment in the county jail for not exceeding 90 days.” Chapter 468, Laws 1909, prohibited discrimination in prices between localities “with the intention of creating a monopoly or destroying the business of a competitor.” The Act of 1921 forbade such discrimination with “ the purpose of creating a monopoly, or to restrain trade, or to prevent or limit competition, or to destroy the business of a competitor.” The Act of 1923, supra, eliminated purpose as an element of the offense. The cause was begun in Cottonwood County by a complaint which alleged— That the Fairmont Creamery Company on June 11, 1923, at the Village of Bingham Lake, Cottonwood County, committed the crime of unfair discrimination in the purchase of butter fat for manufacture and sale, in the manner following: Said company, while engaged in the business of buying milk, cream and butter fat for manufacture and sale and while maintaining regularly-established stations for purchases at Madelia, Mountain Lake, Bingham Lake and other villages for shipment to Sioux City, Iowa, there to be manufactured and sold, did wrongfully, unlawfully and unfairly discriminate between said localities by paying a higher price for butter fat at some stations than at others, after due allowance for transportation costs. And, more particularly, on June 11, 1923, the company purchased cream at Madelia for thirtyeight cents per pound, and on the same day purchased cream of like quality at Mountain Lake and Bingham FAIRMONT CO. v. MINNESOTA. 5 1 Opinion of the Court. Lake for thirty-five cents per pound, all being intended for transportation to Sioux City, Iowa, there to be manufactured and sold. On that day the cost of transportation from Madelia to Sioux City was higher than from the other places. Bingham Lake, Mountain Lake (in Cottonwood County) and Madelia (in Watonwan) are villages of Southern Minnesota, about 120, 130, and 160 miles, respectively, northeast of Sioux City, and are connected therewith by a single direct railroad line. At the trial the accused company offered testimony to show: “ That during the last nine years, the price paid for butter fat in the southern half of Minnesota, at the different towns, has varied in each town; that the variation has been from one cent to eight cents; that such price is exclusive of transportation charges; that such variation is the normal condition of the market in the sale of cream and butter fat, and is the result entirely of competitive conditions; that in certain localities there are many more competitors than there are in others; that the quality of cream differs in different localities; that the equipment and efficiency of creameries in the various localities differ, and that each of these things enters into the price that is paid for the butter fat in the particular locality where the sale is made, and that this variation in price, in each town, in the southern half of Minnesota, existed on the eleventh day of June, 1923, and that such variation is constant, and has existed for nine years previous to that time, and that these variations in price are due entirely to the economic conditions in each locality, and to competition.” The trial court excluded this evidence as immaterial, and the Supreme Court approved. We may, therefore, treat the facts stated as though established and held to have no bearing on the question of guilt or the validity of the enactment. 6 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. Defense was made on several grounds—That the venue was improperly laid in Cottonwood County; that the statute conflicted with the federal Constitution by denying equal protection of the laws and liberty to contract; and that it unduly interfered with interstate commerce. The cause has been before the Supreme Court of Minnesota three times. 162 Minn. 146; 168 Minn. 378 (Aug. 27, 1926); 168 Minn. 381 (Oct. 27, 1926). Two opinions discuss the merits of the controversy; the last affirmed conviction upon the earlier ones. Replying to the objection that venue was improperly laid in Cottonwood County, locality of the lower price, the Supreme Court said: u The gist of the offense is the discrimination between different localities by paying different prices in different localities after making due allowance for the cost of transportation from the point of purchase to the point of sale or manufacture. The statute chooses to define the offense by referring to a higher price at one point than at another. It might define it by referring to the payment of a lower price at one point than another. The meaning would be the same. . . . The offending fact is that there are sales at different prices and thereby discrimination.” It next held that the statute did not deny equal protection to those engaged in buying cream for manufacture or sale since they properly might be treated as a distinct class and subjected to peculiar regulations. Concerning the claim that the statute undertakes to deprive plaintiff in error of property and liberty of contract without due process of law, contrary to the Fourteenth Amendment, the court said— “ There have developed in the State a large number of so-called centralized creameries which buy in different localities. We take it that the defendant is one. In addition there are cooperative creameries and independent creameries not usually maintaining other buying stations, FAIRMONT CO. v. MINNESOTA. 7 Opinion of the Court. though some may. There is in the law nothing to prevent them doing so. We do not understand that the buying stations are commonly localized plants. [Counsel for the State say that creamery statistics for 1923 show then operating in the State six hundred and twenty-eight cooperative creameries, one hundred and twenty-seven independent or individual ones,and forty-eight ‘centralizers.’] Often the buyer represents the creamery as an adjunct of his other business. Often his compensation is through a commission. He may have a place to receive the product or it may be delivered directly to the railroad station. A centralized creamery, supplied with ample capital and facilities, has the ability and meets the temptation to destroy competition at a buying station by overbidding, absorbing the resultant losses, if any, through the profits of its general business and, when competition is ended, to buy on a noncompetitive basis. If it does all this successfully, it has a monopoly, and may or may not treat producers justly. The statute seeks to prevent the destruction of competition by forbidding overbidding unless the dealer makes prices at other buying points correspond after proper allowances for the cost of transportation. If the statute is obeyed destroying competition is expensive. The statute limits the right of the creamery to contract at its buying points on a basis satisfactory to itself and its patrons. The State must concede this, and it does. 11 The dairy industry, measured in money, is a large, perhaps just now the largest, productive industry of the State. . . . It is not surprising that in the marketing of so great a product, coming from so wide an area of production, under conditions such as obtain, those engaged in the industry claim abuses for which they seek legislative remedy. The exercise of the police power is not confined to measures having in view health or morals of the community. The welfare of a great industry and the people engaged in it may be guarded.” 8 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. To the contention that the statute unduly burdens interstate commerce, the court replied: “A statute may indirectly or incidentally affect interstate commerce, as local police measures frequently do, without offending the commerce clause. . . . The defendant is a Minnesqta corporation. The product which it purchased might have gone as well to a point in Minnesota for manufacture or resale. It so happened that it went to Iowa. The statute is not unconstitutional as an interference with interstate commerce.” Counsel for the State concede that the statute requires buyers to pay the same price for like commodities at all points of purchase, after proper allowances for transportation. Also, that it inhibits plaintiff in error from meeting local competition by increasing the price only at that place; also, from varying purchase prices to meet normal trade conditions. They further admit that the State may not arbitrarily interfere with the right of one conducting a lawful business to contract at will; but they say that the federal Constitution does not guarantee absolute freedom of contract and the State may prohibit transactions not in themselves objectionable when within reason this may seem necessary in order to suppress substantial evil. It seems plain enough that the real evil supposed to threaten the cream business was payment of excessive prices by powerful buyers for the purpose of destroying competition. To prevent this the statute undertook to require every buyer to adhere to a uniform price fixed by a single transaction. As the inhibition of the statute applies irrespective of motive, we have an obvious attempt to destroy plaintiff in error’s liberty to enter into normal contracts long regarded not only as essential to the freedom of trade and commerce but also as beneficial to the public. Buyers in competitive markets must accommodate their bids to FAIRMONT CO. v. MINNESOTA. 9 1 Opinion of the Court. prices offered by others, and the payment of different prices at different places is the ordinary consequent. Enforcement of the statute would amount to fixing the price at which plaintiff in error may buy, since one purchase would establish this for all points without regard to ordinary trade conditions. The real question comes to this—May the State, in order to prevent some strong buyers of cream from doing things which may tend to monopoly, inhibit plaintiff in error from carrying on its business in the usual way heretofore regarded as both moral and beneficial to the public and not shown now to be accompanied by evil results as ordinary incidents? Former decisions here require a negative answer. We think the inhibition of the statute has no reasonable relation to the anticipated evil—high bidding by some with purpose to monopolize or destroy competition. Looking through form to substance, it clearly and unmistakably infringes private rights whose exercise does not ordinarily produce evil consequences, but the reverse. In Adams v. Tanner, 244 U. S. 590, 594, this court said: “ 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. Skilfully 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.” 10 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. Concerning a price-fixing statute, Tyson and Brother v. Banton et al., 273 U. S. 418, recently declared: “ 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 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.” And see Adkins v. Children’s Hospital, 261 U. S. 525; Wolff Co. v. Industrial Court, 262 U. S. 522, 537. Booth v. Illinois, 184 U. S. 425, much relied upon by counsel for the State, sustained the validity of an Act forbidding options to sell or buy property at a future time, ultimate delivery being intended. The evident purpose was to prevent gambling contracts. The Supreme Court of Illinois pointed out that gambling was commonly incidental to dealings in futures, and held the Legislature FAIRMONT CO. v. MINNESOTA. 11 1 Opinion of the Court. might properly conclude that the public interest demanded their suppression as a class in order to avert this evil. This court said: “A calling may not in itself be immoral, and yet the tendency of what is generally or ordinarily or often done in pursuing that calling may be towards that which is admittedly immoral or pernicious. If, looking at all the circumstances that attend, or which may ordinarily attend, the pursuit of a particular calling, the State thinks that certain admitted evils cannot be successfully reached unless that calling be actually prohibited, the courts cannot interfere, unless, looking through mere forms and at the substance of the matter, they can say that the statute enacted professedly to protect the public morals has no real or substantial relation to that object, but is a clear, unmistakable infringement of rights secured by the fundamental law.” The State also relies upon Otis v. Parker, 187 U. S. 606; Purity Extract Co. v. Lynch, 226 U. S. 192; Rast v. Van Deman & Lewis, 240 U. S. 342; and Merrick v. Halsey & Co., 242 U. S. 568. But all those cases recognize the duty of the court to inquire into the real effect of any statute duly challenged because of interference with freedom of contract guaranteed by the Fourteenth Amendment, and to declare it invalid when without substantial relation to some evil within the power of the State to suppress and a clear infringement of private rights. We need not consider other points advanced by plaintiff in error. The judgment of the court below must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed. Mr. Justice Holmes, Mr. Justice Brandeis, and Mr. Justice Stone dissent. 12 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. OHIO PUBLIC SERVICE COMPANY v. OHIO ex rel. FRITZ. ERROR TO THE SUPREME COURT OF THE STATE OF OHIO. Nos. 210, 264. Argued March 10, 1927.—Decided April 11, 1927. 1. Of two writs of error to a state court, the one sued out pending motion for rehearing and the other after' rehearing denied, the second may be relied on and the other dismissed. P. 12. 2. An ordinance of an Ohio village, in 1892, authorizing persons named to use the streets, etc., for the purpose of erecting, maintaining and operating electric light wire mains and apparatus complete for the distribution of electricity for light, heat and power, granted an assignable franchise for an unlimited time and not subject to termination at the mere will of the grantor. P. 13. 3. Subsequent legislation of the State destroying the assignability of the franchise would be invalid under the Contract Clause of the Federal Constitution. P. 14. 113 Oh. St. 325, reversed. Error to a judgment of the Supreme Court of Ohio which affirmed a judgment in quo warranto ousting the Public Service Company from use of the streets in the Village of Orrville under a franchise to transmit and distribute electricity. Messrs. C. H. Henkel and Frank M. Cobb, with whom Mr. Franklin L. Maier was on the brief, for plaintiff in error. Messrs. Lyman R. Critchfield and Alton H. Etling, with whom Mr. Joseph 0. Fritz, Prosecuting Attorney, was on the brief, for defendant in error. Mr. Justice McReynolds delivered the opinion of the Court. These two writs of error were sued out at different stages of the same cause; the first while a timely application for rehearing was pending; the second after this OHIO PUB. SERV. CO. v. FRITZ. 13 12 Opinion of the Court. had been denied. Under the circumstances, plaintiff in error may rely upon the latter writ and No. 210 will be dismissed. By an action in quo warranto the State of Ohio, upon relation of the Prosecuting Attorney for Wayne County, seeks to oust plaintiff in error, a corporation under her laws, from use of the streets in the Village of Orrville. The corporation has general power to transmit and distribute electric energy and current, and claims the privilege to operate there as assignee of rights granted to Gans and Wilson and their successors by an ordinance of the Village Council passed February 1, 1892. The Supreme Court treated the judgment of the Court of Appeals as establishing that the Orrville Light, Heat and Power Company, immediate successor to Gans and Wilson, acquired in 1893 the right to occupy the streets which the ordinance of 1892 gave them. But it held the franchise so acquired was revocable ten years after the original grant and had been terminated by appropriate village action. Also, that under the Act of the Legislature passed April 21, 1896, 92 Ohio Laws 204, this franchise could not lawfully be assigned to plaintiff in error’s predecessor during 1907 without the consent of the village, which was not given. It accordingly affirmed the judgment of ouster pronounced by the Court of Appeals. 113 Oh. St. 325. The ordinance of February 1, 1892, ordained—" Sec. 1. That Aurel P. Gans and Mellville D. Wilson of Canal Dover, Ohio, their associates, successors and assigns are hereby authorized and empowered to use the streets, lanes, alleys, and avenues of the Village of Orrville for the purpose of erecting, maintaining and operating electric light wire mains and apparatus complete for the distribution of electricity for light, heat and power.” Subsequent sections inhibited unnecessary obstruction of the streets, directed how the wires should be strung, 14 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. etc.; also that the grantee should furnish and the village should use and pay for a designated number of lights during a period of ten years at a specified rate, etc., etc. The Ohio statute of 1896 applies to electric light and power companies and provides, that “ in order to subject the same to municipal control alone, no person or company shall place, string, construct or maintain any line, wire fixture or appliance of any kind for conducting electricity for lighting, heating or power purposes through any street, alley, lane, square, place or land of any city, village or town, without the consent of such municipality. . . We think it quite clear that the conclusions of the court below conflict with rulings heretofore announced by this court. In Northern Ohio Traction Co. v. Ohio, 245 U. S. 574, we pointed out the state of the law in Ohio during 1892. It is plain enough from what was there said that in our view the franchise originally granted by the Village of Orrville was for an unlimited time and not subject to termination at the mere will of the grantor. Louisville v. Cumberland Telephone Co., 224 U. S. 649, 661, and Owensboro v. Cumberland Telephone Co., 230 U. S. 58, 75, are enough to show that the rights acquired under the ordinance of 1892 were assignable without further consent by the village. If to enforce the Ohio statute of 1896 would destroy this right, it conflicts with the provision of the federal Constitution—-No State shall pass any law impairing the obligation of contracts. The judgment of the court below must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed. Mr. Justice Holmes and Mr, Justice Brandeis dissent. HODGSON v. FEDERAL OIL CO. 15 Statement of the Case. HODGSON v. FEDERAL OIL AND DEVELOPMENT COMPANY et al. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 166. Argued February 24, 25, 1927.—Decided April 11, 1927. 1. A motion in this Court to amend a bill on appeal, overruled, when it did not appear that the facts sought to be added were newly discovered, and in the absence of any affidavit concerning them. P. 17. 2. The provision of the Oil Land Leasing Act of February 25, 1920, that “ all leases hereunder shall inure to the benefit of the claimant and all persons claiming through or under him” (§ 18), does not apply to one claiming an interest, not through or under the lessee but through the heirs of one of the original locators of the relinquished placer claim. P. 18. 3. Where the lease was secured by one who, having become part owner of a placer claim located by eight persons, had held exclusive adverse possession of it, claiming the whole, for many years before relinquishing it under the above Act and obtaining the lease, the heirs of one of the original locators, who were ignorant of having rights under the Act, and did not comply with its terms during the six months allowed, have no interest under the lease upon the theory that the lessee, as their co-tenant, was their fiduciary. P. 18. 4. If the interests of co-tenants accrue at different times, under different instruments, and neither has superior means of information respecting the state of the title, then either, unless he employ his co-tenancy to secure an advantage, may acquire and assert a superior outstanding title, where there is no joint possession. P. 19. 5. Uninterrupted possession of a mining claim by part of the owners for fifteen years, under assertion of right based on recorded conveyances purporting to pass to them the whole claim, with no recognition of others as co-owners, is exclusive and hostile, and not in any relationship of trust and confidence. P. 20. 5 F. (2d) 442, affirmed. Appeal from a decree of the Circuit Court of Appeals which affirmed a decree of the District Court dismissing 16 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. a bill seeking to hold the two appellee oil companies as trustees for the appellant to the extent of a one-eighth interest in a lease of oil land. Mr. James M. Hodgson, pro se, with whom Mr. F. E. Pendell was on the brief, for appellant. Mr. Harold D. Roberts, with whom Messrs. Tyson S. Dines, Peter H. Holme, and J. Churchill Owen were on the brief, for appellees. Mr. Justice McReynolds delivered the opinion of the Court. Appellant seeks to establish his right to a one-eighth interest in an oil and gas lease upon one hundred and sixty acres of land in Wyoming granted August 21, 1920, by the United States to appellee Federal Oil and Development Company under §18, Act of Congress approved February 25, 1920, c. 85, 41 Stat. 437, 443. The lease was afterwards assigned to The Mountain and Gulf Oil Company upon conditions not here important. The bill, filed May 26, 1922, proceeds upon the theory— That January 11, 1887, George McManus and seven associates located a placer mining claim—The O’Glase—and thereafter perfected the same; McManus died in 1901, his one-eighth interest descended to his heirs and has never been forfeited, abandoned or lost; these heirs lived beyond Wyoming and were unaware of their interest in the claim for twenty years; the land is within the district withdrawn from entry by Executive order of September 27, 1909; the Federal Oil and Development Company, having become part owner of the claim, took possession and thereafter, asserting ownership to the whole, surrendered the same and procured the existing lease in its own name under the Act of 1920. The company became a co-tenant with the McManus heirs and, consequently, the lease ob- HODGSON v. FEDERAL OIL CO. 17 15 Opinion of the Court. tained by it inured to their benefit; appellant purchased their interest February 11, 1922, and may now impress a trust upon the lease. The trial court held that no adequate ground for relief was disclosed and dismissed the bill upon motion. This was affirmed by the Circuit Court of Appeals. 5 Fed. (2d) 442. A motion to amend the bill, first made in this Court, must be overruled. It does not appear that the alleged facts have been recently discovered and there is no affidavit in respect of them. The Act of February 25, 1920, provides— ‘‘See. 18. That upon relinquishment to the United States, filed in the General Land Office within six months after the approval of this Act, of all right, title, and interest claimed and possessed prior to July 3,1910, and continuously since by the claimant or his predecessor in interest under the pre-existing placer mining law to any oil or gas bearing land . . . embraced in the Executive order of withdrawal issued September 27, 1909, and not within any naval petroleum reserve, and upon payment as royalty to the United States of an amount equal to the value at the time of production of one-eighth of all the oil or gas already produced . . . the claimant, or his successor, if in possession of such land, undisputed by any other claimant prior to July 1, 1919, shall be entitled to a lease thereon from the United States for a period of twenty years, at a royalty of not less than 12^ per centum of all the oil or gas produced . . . “All such leases shall be made and the amount of royalty to be paid for oil and gas produced, except oil or gas used for production purposes on the claim, or unavoidably lost, after the execution of such lease shall be fixed by the Secretary of the Interior under appropriate rules and regulations ... In case of conflicting claimants for leases under this section, the Secretary of the Interior is 55514°—28--2 18 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. authorized to grant leases to one or more of them as shall be deemed just. All leases hereunder shall inure to the benefit of the claimant and all persons claiming through or under him by lease, contract, or otherwise, as their interests may appear . . .” “Sec. 32. That the Secretary of the Interior is authorized to prescribe necessary and proper rules and regulations and to do any and all things necessary to carry out and accomplish the purposes of this Act . . .” The following is one of the regulations established by the Secretary— “241/2. All proper parties to a claim for relief under section 18, 19, or 22 of the Act should join in the application, but, if for any sufficient reason that is impracticable, any person claiming a fractional or undivided interest in such claim may make application for a lease or permit, stating the nature and extent of his interest, and the reasons for nonjoinder of his co-owner or co-owners. In cases where two or more applications are made for the same claim or part of a claim, leases or permits will be granted to one or more of the claimants, as the law and facts shall warrant and as shall be deemed just.” Appellant insists that he is entitled to relief under the clause in the Act of 1920 which provides—“All leases hereunder shall inure to the benefit of the claimant and all persons claiming through or under him by lease, contract, or otherwise, as their interests may appear.” But, we think, it is clear enough that he does not claim “ through or under” either appellee, within the meaning of the Act. Whatever rights he has, if any, come through or under George McManus and his heirs. He also maintains that out of the alleged co-tenancy there arose a relation of trust and confidence between the Oil and Development Company and the McManus heirs and therefore it cannot deny that the lease was procured HODGSON v. FEDERAL OIL CO. 19 15 Opinion of the Court. for the benefit of them as well as for itself, according to their respective interests. If appellant’s predecessors owned an interest in the placer claim, certainly they never put themselves in position to receive a lease from the United States under the Act of 1920. They made no effort to surrender their rights or comply with the prescribed prerequisites during the six months allowed.. Prior to the granting of the lease they had no knowledge of rights now asserted. The Oil and Development Company did not obtain what otherwise would have been granted to them; and the principle under which the patentee was declared trustee for another in such cases as Silver v. Ladd, 7 Wall. 219, and Sv or n. Morris, 227 U. S. 524, does not apply. Anicker v. Gunsburg, 246 U. S. 110, 117, holds: “ In order to maintain a suit of this sort the complainant must establish not only that the action of the Secretary was wrong in approving the other lease, but that the complainant was himself entitled to an approval of his lease, and that it was refused to him because of an erroneous ruling of law by the Secretary.” In order to support the view that in equity and good conscience the Oil and Development Company acted for the McManus heirs in securing the existing lease, it would be necessary to allege definite facts (not mere conclusions) sufficient to show some fiduciary relationship between them. This has not been done, unless such a relationship necessarily arose because of co-tenancy. The rule as commonly stated forbids a co-tenant from acquiring and asserting an adverse title against his companions because of the mutual trust and confidence supposed to exist; but the rule does not go beyond the reason which supports it. If the interests of the co-tenants accrue at different times, under different instruments, and neither has superior means of information respecting the state 20 OCTOBER TERM, 1926. Opinion of the Court. 274 U. 8. of the title, then either, unless he employs his co-tenancy to secure an advantage, may acquire and assert a superior outstanding title, especially where there is no joint possession. This exception to the general rule is recognized in Turner v. Sawyer, 150 U. S. 578, 586; Elder v. McCloskey, 70 Fed. 529, 546; Freeman on Co-Tenancy and Partition, § 155; Shelby v. Rhodes, 105 Miss. 255, 267; Sands v. Davis, 40 Mich. 14, 18; Joyce v. Dyer, 189 Mass. 64, 67; Steele v. Steele, 220 Ill. 318, 323. We know of no opinion by the courts of Wyoming to the contrary. The bill shows that the Oil and Development Company and its predecessors were in uninterrupted possession of the mining claim from 1905 to August 21, 1920, when it relinquished the same to the United States and applied for the lease; that throughout this period they held under assertion of right based on recorded conveyances purporting to pass the whole claim to them (which undoubtedly gave color of t^tle) and did whatever was necessary to preserve it. There is no suggestion that any of them acknowledged the title was other than what these conveyances purported to pass or recognized the heirs of McManus as co-owners. Such holding must be regarded as exclusive and hostile to all others and not in any relationship of trust and confidence. It continued for fifteen years, during which the McManus heirs asserted no conflicting right or objection. They do not appear to have been infants or under disability. In no admissible view of the leasing Act are they shown to have been entitled to the lease or any interest therein. We need not discuss laches as an equitable defense, the effect of the ten-year limitation prescribed by the Wyoming statute or other points relied on by the appellees. In the circumstances nothing short of distinct allegations of all the facts necessary to support appellant’s HOFFMAN v. FORAKER. 21 15 Opinion of the Court. claim for relief would suffice, and they are not to be found in the bill. The decree of the court below must be Affirmed. HOFFMAN, JUDGE v. MISSOURI ex rel. FORAKER. ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI. No. 225. Argued March 11, 1927.—Decided April 11, 1927. An action under the Federal Employers Liability Act for death by negligence may be maintained against a railroad in the State of its incorporation, where it owns part of its line, operated in intrastate as well as interstate commerce, in a county where it has an agent and a usual place of business, though this be not the State where the cause of action arose. P. 22. 309 Mo. 625, affirmed. Error to a judgment of the Supreme Court of Missouri, in mandamus, which directed the judge of an inferior court to set aside a judgment dismissing an action for damages, and to entertain jurisdiction over it. Mr. Roy W. Rucker, with whom Messrs. Edward J. White and James F. Green were on the brief, for plaintiff in error. Messrs. L. D. Mitchell and Paul Barnett were on the brief for defendant in error. Mr. Justice Brandeis delivered the opinion of the Court. This is a writ of error to the Supreme Court of Missouri, which had granted, in an original proceeding, a peremptory writ of mandamus. 309 Mo. 625. Its judgment directed the judge of an inferior court to set aside a judgment dismissing an action and ordered him to entertain 22 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. jurisdiction. That action had been brought under the Federal Employers Liability Act by a citizen and resident of Kansas for the death of an employee of the Missouri Pacific Railroad. The accident occurred on its line in Kansas, and the deceased was a citizen of Kansas at the time of his death. The railroad is a Missouri corporation. The action was brought in a county traversed by the railroad, in which it had an office and an agent for the transaction of business. Under a statute of the State it was liable to suit there. 1919 Mo. Rev. Stat., § 1180. The railroad contends that, as it could have been sued in Kansas where the accident occurred and the plaintiff resided, the statute, as applied, was void, under the doctrine of Davis v. Farmers Cooperative Equity Co., 262 U. S. 312, and Atchison, Topeka & Santa Fe Ry. v. Wells, 265 U. S. 101, because a suit in Missouri would burden interstate commerce. In support of its contention, it was urged that the claims against the carrier for personal injuries are numerous; that the amounts demanded are large; that in many cases the carrier deems it advisable to leave the determination of liability to the courts; that in the action in question there were at least eleven employees working for it in Kansas who were material witnesses, without whose attendance it could not safely proceed to trial; that to procure their attendance at the trial in Missouri would cause absence from their work in interstate commerce; and that this would subject the carrier to expense. These allegations remind of Davis v. Farmers Cooperative Equity Co. But other facts on which the decision of that case was rested are absent in the case at bar. Here, the railroad is not a foreign corporation; it is sued in the State of its incorporation. It is sued in a State in which it owns and operates a railroad. It is sued in a county in which it has an agent and a usual place of business. It is sued in a State in which it carries on doubtless intra- LOWE v. DICKSON. 23 21 Counsel for Parties. state as well as interstate business. Even a foreign corporation is not immune from the ordinary processes of the courts of a State where its business is entirely interstate in character. International Harvester Co. v. Kentucky, 234 U. S. 579. It must submit, if there is jurisdiction, to the requirements of orderly, effective .administration of justice, although thereby interstate commerce is incidentally burdened. Compare Kane v. New Jersey, 242 U. S. 160, 167; St. Louis, Brownsville tfc Mexico Ry. v. Taylor, 266 U. S. 200. Affirmed. LOWE v. DICKSON. CERTIORARI TO THE SUPREME COURT OF THE STATE OF OKLAHOMA. No. 158. Argued February 24, 1927.—Decided April 11, 1927. A second or additional homestead entry, not authorized by law when made, but asserted and claimed in good faith until after the approval of the Act of May 22, 1902, allowing second entries, was validated by that Act, and segregated the land, other rights not having intervened, and became subject to a subsequent contest for abandonment and failure to improve and cultivate. Prosser v. Finn, 208 U. S. 67, distinguished. P. 26. 108 Okla. 241, reversed. Certiorari (269 U. S. 547) to a decree of the Supreme Court of Oklahoma which affirmed a decree adjudging that a tract of land patented under the homestead law to Lowe (husband of the petitioner here) after a successful contest of an entry made by Dickson, was held in trust for the latter. Mr. Samuel Herrick, with whom Messrs. S. A. Horton, O. C. Wybrant, Charles Swendall, and Claude Nowlin were on the briefs, for petitioner. Mr. Patrick H. Loughran for respondent. 24 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. Mr. Justice Sutherland delivered the opinion of the Court. Respondent obtained a decree in an Oklahoma state court adjudging that a certain tract of land, for which a United States patent had been issued to Seward K. Lowe, was held by Lowe in trust for respondent. This decree was affirmed by the state supreme court. 108 Okla. 241. The suit was brought against Seward K. Lowe and Susan Lowe, his wife. On October 4, 1926, the death of Seward K. Lowe was suggested, and Susan Lowe substituted as the sole party petitioner. The pertinent facts are as follows: On May 22, 1894, respondent made homestead entry of 160 acres of land, and, after final proof and payment, received a patent from the government. On March 3, 1902, he made a second homestead entry of other land at the proper local land office. His affidavit accompanying the application contained the statement that he had not theretofore made an entry under the homestead laws except that he had filed upon certain described land and “ paid out on it about three years ago.” In making the second entry, respondent acted in good faith, believing at that time that his right to make it had been conferred by law. On March 6, 1902, the local land officer informed respondent that his second entry was erroneously allowed because, by his former entry, he had exhausted his homestead right; that the entry would undoubtedly be held for cancellation by the Commissioner of the General Land Office on that account; and that respondent could, if he wished, relinquish that entry and apply for the return of his fees and commissions. Respondent took no action, and the entry, in fact, was not cancelled but was intact on and after May 22, 1902. On that date, an act of Congress, § 2, c. 821, 32 Stat. 203, was passed, the effect of which was to qualify respondent to make a second homestead entry. LOWE v. DICKSON. 25 23 Opinion of the Court. After the passage of that act, respondent continued to claim the land as a homestead. On March 13, 1903, Seward K. Lowe filed a contest against the second entry on a charge of abandonment, but subsequently withdrew it and instituted a new contest, January 28, 1905, charging abandonment for a period of six months and failure to improve and cultivate. June 20, 1906, the local land office found for Lowe and recommended cancellation of respondent’s entry. On July 2, following, respondent made another application to enter the land as a homestead, reciting the two former entries and asserting that the second one had been erroneously allowed. This third application was rejected by the local land office on the ground that it conflicted with the subsisting second entry. Appeals to the Department of the Interior followed, respondent contending that his second entry was a nullity and, consequently, not contestable, and that his third application should have been allowed under the decision in Jeremiah H. Murphy, 4 L. D. 467, holding that a subsisting void entry is no bar to a subsequent legal application by the same person. The department held that (1) the original invalidity of the second entry was immaterial, because respondent’s continued assertion of right thereunder after the passage of the act of May 22, 1902, cured the entry and made it valid, citing prior decisions; (2) the entry having thus been validated, the rule in the Murphy case was not applicable; and (3) the second entry having become valid, respondent was bound to pursue it in compliance with law and could not defeat a contest by electing, after the contest was waged, to treat the entry as invalid. On the merits, the charge of failure to reside upon and cultivate the land was found proved, and the entry was cancelled on that ground. Lowe made homestead entry of the land, and in time received final certificate and patent. 26 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. The state supreme court declined to follow this holding of the department, saying that while it was supported by a number of prior departmental decisions, which were entitled to great weight and should not be overruled unless clearly erroneous, a controlling conclusion to the contrary had been reached by this court in Prosser n. Finn, 208 U. S. 67. The Prosser case involved the construction and application of § 452 Rev. Stats. — “ The officers, clerks, and employés in the General Land Office are prohibited from directly or indirectly purchasing or becoming interested in the purchase of any of the public land; and any person who violates this section shall forthwith be removed from his office.” Prosser, a special agent of the General Land Office and held to be within the terms of the statute, made a timber culture entry of certain land and complied with the law in respect of cultivation and in other particulars. His entry was contested upon the ground, among others, that it was made in violation of § 452. The contest was sustained by the local land office, and its ruling affirmed by the department. Patent for the land was issued to Finn, and Prosser brought suit for a decree adjudging that the title was held for him in trust by Finn. The ruling of the department was attacked on the ground that long prior to the initiation of the contest, Prosser had ceased to have any connection whatever with the land department, and his entry, therefore, was validated by removal of the disability. This court held that the statute applied; that Prosser’s entry was invalid; that his continuance in possession after ceasing to be special agent was not equivalent to a new entry; and that his rights were to be determined by the validity of the original entry at the time it was made. Section 452 affects a class of persons having superior opportunities and power to perpetrate frauds and secure undue advantage over the general public in the acquisi- LOWE v. DICKSON. 27 23 Opinion of the Court. tion of public lands. “ The purpose of the prohibition is to guard against the temptations and partiality likely to attend efforts to acquire public lands, or interests therein, by persons so situated, and thereby to prevent abuse and inspire confidence in the administration of the public-land laws.” Waskey v. Hammer, 223 U. S. 85, 93. The provision is to be so applied .and enforced as to effectuate the purpose. And it is evident, that to deny an officer, clerk or employé of the land office the right to make an entry while occupying that relationship, but to validate such an entry upon his retirement from the service, would thwart the statutory policy, since the result would be to allow the entryman still to reap the fruit of his undue advantage, superior knowledge and opportunities, and, perhaps, of his fraud, yvhich it is the aim of the statute to forestall. But the restrictions of the homestead law which precluded the acquisition of a second homestead rest upon other and different considerations. The purpose of such restrictions was to limit the bounty of the United States; but when that bounty has been extended to include an additional homestead right, the policy of the law is not infringed by allowing an entry, honestly made, though unauthorized under the old law, to stand as though made under the new law ; provided, of course, other rights have not intervened. In that case, to compel a cancellation of the unauthorized entry and the formal making of a new entry of the same land is merely to require unnecessary circuity of action to accomplish a permissible result. The land department for many years has uniformly held that the old entry may stand, John J. Stewart, 9 L. D. 543 ; George W. Blackwell, 11 L. D. 384; Smith et al. v. Taylor, 23 L. D. 440, and its decision should not be disturbed except for cogent reasons, McLaren v. Fleischer, 256 U. S. 477, 481 ; United States v. Pugh, 99 U. S. 265, 269, which here do not exist. On the contrary, as we 28 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. have indicated, the reasons convincingly are the other way. The Prosser case would have fallen within a like principle if, while Prosser was in possession of the land and resting upon his entry, the law itself had been so altered as to remove the disqualification imposed by § 452. Such a change in the law would have manifested a change of policy, with which, as in the present case, validation of the unauthorized entry, no adverse claims intervening, would not have conflicted. It is well settled that, while § 2320 Rev. Stats, provides explicitly that “ no location of a mining-claim shall be made until the discovery of the vein Or lode within the limits of the claim located,” a discovery after location will validate the location if no adverse rights have intervened. To require a new location under these circumstances “ would be a useless and idle ceremony, which the law does not require.” Mining Company v. Tunnel Company, 196. U. S. 337, 345, 348-352; Union Oil Co. v. Smith, 249 U. S. 337, 347; Cole v. Ralph, 252 U. S. 286, 296. So, where an alien has made a public land entry, his subsequent naturalization or declaration of intention to become a citizen will, in the absence of adverse claims, relate back and confirm the entry. Bogan v. Edinburgh American Land Mortg. Co., 63 Fed. 192, 198. In Manuel v. Wulff, 152 IT. S. 505, 511, the same rule was applied in the case of a purchase of a mining claim by an alien who became a citizen pending adverse proceedings. And the rule is the same where a homestead entry has been made by a minor who comes of age prior to the inception of an adverse claim. Huff v. Geis, 71 Colo. 7; Dillard v. Hurd, 46 L. D. 51. We are unable to perceive any substantial ground for denying the applicability of the logic of these decisions to the present case. It follows, as the land department held, that Lowe’s contest was filed against a validated and subsisting entry which had had the effect of segregating the land from the CHICAGO, R. I. & P. RY. v. U. S. 29 23 Syllabus. public domain and thereby precluding the subsequent entry attempted to be made by Dickson. Holt v. Murphy, 207 U. S. 407, 412. And since Dickson’s right to relief rests entirely upon his contention to the contrary, which the state court upheld, the decree of that court must be Reversed. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY et al. v. UNITED STATES et al. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF TEXAS. No. 190. Argued March 4, 1927.—Decided April 11, 1927. 1. An order of the Interstate Commerce Commission, in a proceeding to fix reasonable maximum rail-and-water rates, and purporting to • do this by adopting the existing all-rail rates with a fixed differential, (alleged by complainant to represent the cost of water transportation insurance,) should not be construed as an attempt to equalize the two classes of rates merely because of its form or by laying undue stress upon recitals in the report. P. 32. 2. If the determination of the Commission finds substantial support in the evidence, the courts will not weigh the evidence nor consider the wisdom of the Commission’s action. P. 33. 3. Under the Panama Canal Act, August 24, 1912, par. 13 of § 6, read with par. 4 of § 15 of the Interstate Commerce Act, and the Transportation Act, the Commission has power to require a rail carrier to embrace in a through rail-and-water route less than the entire length of its railroad lying between the termini of the through route proposed, irrespective of whether both rail and water “are used under a common control, management, or arrangement for a continuous carriage or shipment,” Interstate Com. Act § 1. P. 34. 4. The right of the Commission to consider a case under a particular provision of the statute depends on the facts alleged and not on such provision’s being formally referred to in the complaint. P. 36. 5. To plead the law relied on, is no more necessary in a proceeding before the Commission than it is in a judicial proceeding. P. 36. 5 F. (2d) 888, affirmed. 30 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. Appeal from a decree of the District Court dismissing the bill in a suit by the Chicago, Rock Island & Pacific and St. Louis-San Francisco Railway Companies to enjoin enforcement of an order of the Interstate Commerce Commission establishing joint rail-and-water and rail-and-water-and-rail rates on cotton. Mr. A. B. Enoch, with whom Messrs. M. L. Bell, W. F. Dickinson, T. P. Littlepage, and M. G. Roberts were on the brief, for appellants. Mr. Blackburn Esterline, Assistant to the Solicitor General, with whom Solicitor General Mitchell was on the brief, for the United States. Mr. Daniel W. Knowlton, with whom Mr. P. J. Farrell was on the brief, for the Interstate Commerce Commission. Mr. R. C. Fulbright for the Houston Cotton Exchange and Board of Trade, submitted. Mr. Justice Sutherland delivered the opinion of the Court. This is a suit to annul, and enjoin the enforcement of, an order of the Interstate Commerce Commission prescribing joint rail-and-water and rail-water-and-rail rates (both hereinafter designated as rail-and-water rates) on cotton from points in Oklahoma, via Galveston and certain steamship lines, to New England destinations. The complaint before the commission was brought by the Houston Cotton Exchange and Board of Trade and other similar organizations against appellants and a number of other carriers, to have prescribed and established just and reasonable joint through rates on cotton from Oklahoma points through Texas ports to various points of destination in the northeastern part of the United States and Canada, including New England territory. The CHICAGO, R. I. & P. RY. v. U. S. 31 29 Opinion of the Court. modified final order of the commission required appellants to establish and maintain for the transportation of cotton from Oklahoma points, via Galveston and the lines of the Mallory Steamship Company and the Southern Pacific Company-Atlantic Steamship Lines, to destinations in New England territory, joint rail-and-water rates not exceeding “ rates 4 cents per 100 pounds lower than the present all-rail rates from and to the same points,”—not, however, lower than $1.50 per 100 pounds. Prior to the commission’s order, no joint rail-and-water rates on cotton were in effect between the points mentioned. The rate to New York consisted of the local rail rate to Galveston plus the water rate therefrom and a loading charge. To New England points, the rate was made by adding the rail rate beyond New York. The all-rail routes from Oklahoma to the New England territory points are through St. Louis, Memphis, and other Mississippi crossings; and the joint all-rail rates were lower to New England destinations than the combination of local rail-and-water rates. On commodities other than cotton, joint rail-and-water rates were in effect, and these were lower than the all-rail rates. The commission found that the establishment of joint rail-and-water rates on cotton between the points in question was desirable in the public interest, and that the existing rates for such transportation were unreasonable to the extent that they exceeded or may exceed rates constructed by the deduction of 4 cents from the present all-rail rates. 87 I. C. C. 392; 93 I. C. C. 268. The court below, consisting of three judges, after a hearing, entered a decree dismissing the bill for want of equity. 6 F. (2d) 888. Appellants assign 21 specifications of error; but the objections to the commission’s order, so far as necessary to be considered here, may be summarized as follows: (1) the commission undertook to equalize rail-and-water rates with the all-rail rates, a power which it does not 32 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. possess; (2) if the order be treated as made under the power to fix reasonable rates, it is arbitrary and without supporting evidence; (3) the result of the order is to short-haul appellants’ lines contrary to paragraph 4, § 15, of the Interstate Commerce Act as amended by § 418 of the Transportation Act, 1920, c. 91, 41 Stat. 456, 485; and (4) the order is based upon paragraph (13) of § 6, added to the Interstate Commerce Act by the Panama Canal Act of August 24, 1912, c. 390, 37 Stat. 560, 568, and is, therefore, void because the authority of the commission was not invoked under that paragraph. First. Appellants’ argument under this head seems to be predicated upon the contention that the order of the commission established an exact relationship between the rail-and-water rates and the present all-rail rates, the differential of 4 cents being, it is said, the amount charged by insurance companies as a premium for insurance to cover the risk of water transportation; and that an analysis of the commission’s order and report shows that the commission itself recognized that it was undertaking to make such an equalization. The complaint before the commission plainly sought the establishment of reasonable rates, and the order of the commission directed the carriers to discontinue the then existing rates made up of combinations of local rates and substitute the maximum joint rates which were prescribed in the words already stated. The commission found that rates were and would be unreasonable to the extent they exceeded or might exceed those prescribed. In form, the action of the commission was responsive to the case made by the complaint, and to hold that, in fact, its order was not one fixing reasonable rates but an order equalizing rates would be to put undue stress upon certain recitals contained in the report, to which our attention is called but which need not be detailed. If these recitals stood alone, they might give plausibility to the contention; CHICAGO, R. I. & P. RY. v. U. S. 33 29 Opinion of the Court. but from a consideration of the entire record we think it quite unfair to conclude that the commission undertook to exercise an authority entirely different and distinct from that which the complaint specifically invoked. There is nothing in Southern Pacific Co. v. Interstate Commerce Commission, 219 U. S. 433, that requires a different conclusion. In that case it appeared upon the face of the record that the commission had not exerted its power to correct an unjust and unreasonable rate, but had made the order complained of upon the theory that it possessed the power to set aside a just and reasonable rate whenever the commission deemed that it would be equitable to shippers in a particular district to put in force a reduced rate. In reaching that conclusion the court thought that the complaint and answer presented the latter issue; that while the opinion of the commis-sion might contain some sentences indicating the contrary, when considered as a whole, in the light of the record, it clearly appeared that the order was based upon that theory; and that this was borne out by the dissenting opinion, which proceeded upon the express ground that the order was an exertion of a power not possessed, with no language in the prevailing opinion to indicate the contrary. Here, it is true, the order fixes the rail-and-water rate by relating it in terms to the all-rail rate; but, since we accept the view that the former was, in fact, established as a just and reasonable rate, there can be no objection to the form of words adopted as a method of short and convenient description of that rate. The power of the commission to equalize rates, if its authority to that end should be invoked, is not involved. Second. If the order of the commission be unsupported by the evidence, it is, of course, void. New England Divisions Case, 261 U. S. 184, 203. But if the determination of the commission finds substantial support in the evidence, the courts will not weigh the evidence nor consider 55514°—28--3 34 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. the wisdom of the commission’s action. Id., 204; Virginian Ry. Co. v. United States, 272 U. S. 658. The order here does not rest alone upon comparisons with the allrail rates, as seems to be contended, but is supported by other established facts and circumstances as well. See Western Chem. Co. v. United States, 271 U. S. 268, 271. Nothing is to be gained by a review of the evidence. It is enough to say that both the commission and the lower court thought it was ample to justify the order, and, upon a consideration of the entire record, we find no reason to differ with them in that conclusion. Third. Does the order of the commission result in short-hauling appellants’ lines contrary to the provisions of paragraph 4 of § 15 of the Interstate Commerce Act, as amended by the Transportation Act, 1920? The pertinent provision of that paragraph is that the commission, in establishing a through route, shall, not, “ except where one of the carriers is a water line,” require any railroad carrier to embrace in such route substantially less than the entire length of its railroad lying between the termini of the proposed through route. That the through routes here established by the commission’s order do embrace substantially less than the entire length of appellants’ railroads, etc., is not denied. And appellants’ contention is that the exception, “where one of the carriers is a water line,” has reference only to such a carrier as comes within the description of § 1 of the Interstate Commerce Act, which provides, among other things, that the provisions of the act shall apply to common carriers engaged in “(a) The transportation of passengers or property wholly by railroad, or partly by railroad and partly by water when both are used under a common control, management, or arrangement jor a continuous carriage or shipment; . . .” c. 91, 41 Stat. 456, 474. Appellees insist that the rail and water lines here involved come within the italicized portion of this provision. CHICAGO, R. I. & P. RY. v. U. S. 35 29 Opinion of the Court. But it is unnecessary to pass upon that question, since clearly the order in this respect can be sustained under the later and broader provisions of paragraph (13) of § 6, added to the Interstate Commerce Act by the Panama Canal Act, supra. That paragraph provides— “ When property may be or is transported from point to point in the United States by rail and water through the Panama Canal or otherwise, the transportation being by a common carrier or carriers, and not entirely within the limits of a single State, the Interstate Commerce Commission shall have jurisdiction of such transportation and of the carriers, both by rail and by water, which may or do engage in the same, in the following particulars, in addition to the jurisdiction given by the Act to regulate commerce, as amended June eighteenth, nineteen hundred and ten: “(b) To establish through routes and maximum joint rates betwen and over such rail and water lines, and to determine all the terms and conditions under which such lines shall be operated in the handling of the traffic embraced.” This addition to the Interstate Commerce Act, materially extends the jurisdiction of the commission in respect of land and water transportation and the carriers engaged in it, whenever property may be or is transported in interstate commerce by rail and water by a common carrier or carriers; and the obvious intention of Congress would be substantially limited in effect if the quoted provisions were held to be subject to the restriction that both rail and water must be used under a common control, etc. The phrase, “ except where one of the carriers is a water line,” was introduced in an amendment made to the Interstate Commerce Act by the Transportation Act, 1920, and it is not unreasonable to include within the scope of its reference, the then existing paragraph (13) 36 OCTOBER TERM, 1926. Opinión of the Court. 274 U. S. of § 6. And this view is strengthened by the consideration that the Transportation Act, 1920, as a part of the new policy which it introduced in respect of the regulation of interstate transportation, Wisconsin R. R. Comm. v. C., B. & Q. R. R. Co., 257 U. S. 563, 585; New England Divisions Case, supra, p. 189, directed the commission to establish through routes, joint classifications, etc., both in respect of railroad and water carriers, a whenever deemed by it to be necessary or desirable in the public interest,” etc. 41 Stat. 485. And the same act declares it to be “ the policy of Congress to promote, encourage, and develop water transportation, service, and facilities in connection with the commerce of the United States, and to foster and preserve in full vigor both rail and water transportation.” Sec. 500, 41 Stat. 499. These and other provisions emphasize the intention of Congress to broaden the control of the Interstate Commerce Commission over rail-and-water transportation and, generally, to extend the regulatory power of that body over all such transportation in the public interest. It would be quite inconsistent with that broad purpose to adopt the narrow construction of the statutory provisions under review which is advanced by appellants. On the whole, and especially in the light of the definite congressional policy which the legislation reflects, Richardson v. Harmon, 222 U. S. 96, 104; Holden v. Stratton, 198 U. S. 202, 213-214; Minnesota v. Hitchcock, 185 U. S. 373, 395, we find no difficulty in rejecting the construction thus advanced and adopting that which we have indicated, without, at the same time, doing violence to the fair meaning of the language actually employed. Fourth. In disposing of the final objection, little need be said. The contention is that the commission was without power to predicate its order on paragraph (13) .of § 6 of the act, because there is no formal reference in the complaint to that paragraph nor an order for an investi- BEDFORD CO v. STONE CUTTERS ASSN. 37 29 Statement of the Case. gation under it on the commission’s own motion. But the allegations of the complaint in matters of fact were sufficient to authorize the commission to consider the case under that provision as well as others; and this is enough. To plead the law relied on, is no more necessary in a proceeding before the commission than it is in a judicial proceeding. Decree affirmed. BEDFORD CUT STONE COMPANY et al. v. JOURNEYMEN STONE CUTTERS’ ASSOCIATION OF NORTH AMERICA et al. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No. 412. Argued January 18, 1927.—Decided April 11, 1927. 1. A combination or conspiracy of union stone-cutters to restrain the interstate commerce of certain building-stone producers by declaring their stone “ unfair ” and forbidding members of the union to work upon it in building construction in other States, for which it was extensively bought and used, and thereby coercing or inducing local employers to refrain from purchasing it—is a violation of the Anti-Trust Act. Pp. 45, 54. 2. The fact that the ultimate object was to unionize the cutters and carvers of stone at the quarries of the producers did not make the combination lawful. P. 47. 3. A private suit to enjoin a combination violative of the Sherman Act will lie under § 16 of the Clayton Act, where there is a dangerous probability of injury to the plaintiff, though no actual injury has been suffered. P. 54. 9 F. (2d) 40, reversed. Certiorari (273 U. S. 677) to a decree of the Circuit Court of Appeals which affirmed the District Court in dismissing a bill brought by owners of limestone quarries in Indiana to enjoin a combination alleged to violate the Anti-Trust Act. The defendants were a general union 38 OCTOBER TERM, 1926. Argument for Petitioners. 274 U. S. of stone-cutters, and some of its constituent locals, and their officers. Messrs. Walter Gordon Merritt and Daniel Davenport, with whom Mr. Charles Martindale was on the brief, for petitioners. Under the common law most courts have held combinations of this character to be illegal. Purvis v. Local 500, 214 Pa. 348; Shine v. Fox Bros. Mjg. Co., 156 Fed. 357; Lohse Sash & Door Co. v. Fuelle, 215 Mo. 421; Irving N. Joint Dist. Council, 180 Fed. 896; Newton v. Erickson, 70 Misc. (N. Y.) 291; People v. McFarlan, 43 Misc. (N. Y.) 591; Booth v. Burgess, 65 Atl. 226; Purington v. Hinchliff, 219 Ill. 159; Carlson v. Carpenters Contractors Assn., 303 Ill. 331; Moores v. Bricklayers, 21 Wkly. Law Bull. (Ohio) 665; Piano Workers v. Piano Co., 24 Ill. App. 35; Loizeaux Co. v. Carpenters, Union County, N. J., August 1923. A few others have held the contrary. Parkinson v. Building Trades Council, 154 Cal. 581; Bossert v. Dhuy, 221 N. Y. 342. It is not necessary for complainants to show any common law combination to injure or maliciously interfere with their business. On the contrary, they invoke the provisions of a drastic statute, whereunder every artificial barrier between producer and consumer, which obstructs interstate commerce, is condemned because it interferes with the rights of the purchasing public. This combination of the defendants, which follows the products of the complainants into various States and industrial centers for the purpose of burdening or hampering their use, comes squarely within the spirit and letter of this drastic law. This is not a case of incidental injury or restraint. Having failed to destroy the productive organization, the defendants’ attention was turned to sales and distribution. The sole, direct and immediate purpose, whether you call it an end or a means, is to restrain trade. BEDFORD CO v. STONE CUTTERS ASSN. 39 37 Argument for Respondents. so that, as a secondary result, complainants will be forced to change production conditions. The defendants do not seek a benefit which incidentally restrains trade, but directly and unlawfully restrain trade in order to obtain a benefit as a secondary result. The facts, no essential of which is contradicted, present a clear violation of the Sherman Act under authorities which are indistinguishable. United States v. Brims, 272 U. S. 549; Duplex Co. v. Deering, 254 U. S. 443. It has long since been settled that the statute applies to combinations of workers as well as of employers (Loewe v. Lawlor, 208 U. S. 288), and it has been repeatedly applied to situations where the unions alone were active in prosecuting the boycott, Duplex Co. v. Deering, supra. There is no doubt that commerce can be unlawfully restrained by interfering with the product before it starts on its interstate journey, or after it arrives. United States v. Brims, supra; Duplex Co. v. Deering, supra; Loewe v. Lawlor, supra; Boyle v. United States, 259 Fed. 803. A good motive or an entire absence of malice is no defense if the object is to restrain commerce. Thomson v. Cayser, 243 U. S. 66; Sanitary Mjg. Co. v. Missouri, 226 U. S. 20; Int’l Harvester Co. v. Missouri, 234 U. S. 199. The fact that a factory operates on an anti-union basis does not justify the union in denying that company “ unrestrained access to interstate commerce,” and the right to such access is not curtailed or limited by the failure of the employers to reach an agreement with the union. If the Government could enjoin the defendants under the Anti-Trust Act, the complainants, who are injured by the acts in question, may likewise do so. Mr. Moses B. Lairy, with whom Messrs. Edward E. Gates and Frederick Van Nuys were on the brief, for respondents. 40 OCTOBER TERM, 1926. Argument for Respondents. 274 U.S. The facts before the Court are not sufficient to show a violation of the Sherman Act by respondents or to render them amenable to its provisions. The respondent organization is not engaged in trade or commerce in any commodity which is the subject of interstate trade, and the evidence fails to show that the organization or any of its members are in league with, or have any agreement, understanding or connection with any other person, corporation or association which is engaged in any business in competition with that of petitioners. It can not be inferred from the evidence that the refusal of the members to work on the stone produced and shipped by petitioners was prompted by a motive or purpose to cut down the amount of Bedford stone moving in interstate commerce and thus reduce the supply so as to lessen or stifle the competition with other building stone and substitutes and thereby increase the price of such other building stone and substitutes therefor to the detriment of the public. United States v. Brims, 272 U. S. 549, distinguished. The purpose of respondents was not directed against interstate commerce but their sole and only purpose, as disclosed by the evidence was to unionize the cutters and carvers of stone at the quarries. United Leather Workers v. Herkert Co., 265 U. S. 459. They were endeavoring only to carry out the purposes of their organization in a legal manner; and, if their conduct in so doing had any effect in reducing the supply moving in interstate commerce, such effect was an incidental, indirect, and remote obstruction to such commerce. Anderson v. United States, 171 U. S. 604; Smith v. Alabama, 124 U. S. 465; United Mine Workers v. Coronado Co., 259 U. S. 344; United Leather Workers v. Herkert Co., supra. The modicum of injury attempted to be proven by petitioners is denied. There is no intent proven to interfere with interstate commerce and the necessary effect of such cessation of work does not bring the action of re- BEDFORD CO v. STONE CUTTERS ASSN. 41 37 Opinion of the Court. spondents within the prohibited combinations declared in a long line of cases upon which the petitioner relies. Mr. Justice Sutherland delivered the opinion of the Court. Petitioners, Bedford Cut Stone Company and 23 others, all, with one or two exceptions, Indiana corporations, are in the business of quarrying or fabricating, or both quarrying and fabricating, Indiana limestone in what is called the Bedford-Bloomington District in the State of Indiana. Their combined investment is about $6,000,000, and their annual aggregate sales amount to about $15,000,000, more than 75% of which are made in interstate commerce to customers outside the State of Indiana. The Journeymen Stone Cutters’ Association of North America, sometimes called and hereinafter referred to as the “ General Union,” is an association of mechanics engaged in the stone-cutting trade. It has a constitution, by-laws and officers, and an income derived from assessments upon its members. Its principal headquarters are in Indiana, and it has a membership of about 5,000 persons, divided into over 150 local unions located in various states and in Canada, each of such local unions having its own by-laws, officers, and income derived from like assessments. By virtue of his membership, each member of these local unions is a member of the General Union. The members of the General Union and allied locals throughout the United States are stone cutters, carvers, curb cutters, curb setters, bridge cutters, planermen, lathemen, and carborundum moulding machine operators, engaged in the cutting, patching and fabrication of all natural and artificial stones; and the General Union claims jurisdiction over all of them. This suit was brought by petitioners against the General Union and some of its officers, and a number of affiliated local unions and some of their officers, to enjoin 42 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. them from combining and conspiring together to commit, and from committing, various acts in restraint of interstate commerce in violation of the federal Anti-Trust Act, c. 647, 26 Stat. 209, and to petitioners’ great and irreparable damage. The federal district court for the district of Indiana, after a hearing, refused a preliminary injunction and, subsequently, on final hearing, entered a decree dismissing the bill for want of equity. On appeal, this decree was affirmed by the court of appeals upon the authority of an earlier opinion in the same case. 9 F. (2d) 40. The facts, so far as necessary to be stated, follow. Limestone produced by petitioners is quarried and fabricated largely for building construction purposes. The stone is first taken in rough blocks from the earth and, generally, then cut into appropriate sizes and sometimes planed. Part of this product is shipped directly to buildings, where it is fitted, trimmed and set in place, the remainder being sold in the rough to contractors to be fabricated. The stone sold in interstate commerce comes into competition with other kinds of natural and artificial stone. The principal producers of artificial stone are unionized and are located outside of Indiana. Before 1921, petitioners carried on their work in Indiana under written agreement with the General Union, but since that time they have operated under agreements with unaffiliated unions, with the effect of closing their shops and quarries against the members of the General Union and its locals. Prior to the filing of the bill of complaint, the General Union issued a notice to all its locals and members, directing its members not to work on stone “ that has been started—planed, turned, cut, or semifinished—by men working in opposition to our organization,” and setting forth that a convention of the union had determined that “ members were to rigidly enforce the rule to keep off all work started by men working in BEDFORD CO v. STONE CUTTERS ASSN. 43 37 Opinion of the Court. opposition to our organization, with the exception of the work of Shea-Donnelly, which firm holds an injunction against our association.” Stone produced by petitioners by labor eligible to membership in respondents’ unions was declared “ unfair ”; and the president of the General Union announced that the rule against handling such stone was to be promptly enforced in every part of the country. Most of the stone workers employed, outside the State of Indiana, on the buildings where petitioners’ product is used, are members of the General Union; and in most of the industrial centers, building construction is on a closed shop union basis. The rule requiring members to refrain from working on “ unfair ” stone was persistently adhered to and effectively enforced against petitioner’s product, in a large number of cities and in many states. The evidence shows many instances of interference with the use of petitioners’ stone by interstate customers, and expressions of apprehension on the part of such customers of labor troubles if they purchased the stone. The President of the General Union himself testified, in effect, that generally the men were living up to the order and if it were shown to him that they did not do so in any place he would see that they did. Members found working on petitioners’ product, were ordered to stop and threatened with a revocation of their cards if they continued ; and the order of the General Union seems to have been enforced even when it might be against the desire of the local union. The transcript contains the record of a hearing upon these matters before the Colorado Industrial Commission, from which it appears that in obedience to the order of the General Union its members theretofore employed in Denver upon local building stopped work because petitioners’ product was being used. The local contractor was notified merely that the men stopped work because the stone being used was 44 OCTOBER TERM, 1926. Opinion of the Court. 274 TJ. S. “unfair.” The contractor personally had no trouble of any kind with the union, and no other reason for the strike than that stated above existed. B. F. James, a member and an acting officer of the General Union testified that the local union in conducting its strike against a local builder had no choice in the matter; that they had their orders from the General Union with which they complied; that there was no difference or feeling whatever between the union and the local employer; that the fight was with the Bedford stone producers and they were trying to affect them through the local employer. “ Q. And you people have no choice in the matter, you are just complying with the orders from the International [General Union]? “A. We have no choice whatever. “Q. Probably, if it was left up to you people here, knowing this employer as you do, why, your organization here, local organization, would not strike on this man? “A. I don’t believe we would, no. “Q. But you have got to follow the orders of your International organization? “A. Yes, sir.” The evidence makes plain that neither the General Union nor the locals had any grievance against any of the builders—local purchasers of the stone—or any other local grievance; and that the strikes were ordered and conducted for the sole purpose of preventing the use and, consequently, the sale and shipment in interstate commerce, of petitioners’ product, in order, by threatening the loss or serious curtailment of their interstate market, to force petitioners to the alternative of coming to undesired terms with the members of these unions. In 1924, the president of the General Union said: “ The natural stone industry needs all the natural advantages it can possibly get, as there are so many kinds BEDFORD CO v. STONE CUTTERS ASSN. 45 37 Opinion of the Court. of substitutes to take the natural stone’s place in the building material market, that it behooves the natural stone employers to do their utmost to see that no handicap is in its way, and it is a well known fact that when any material is known to have labor grievances, it retards that material in the building market, as the building public do not want the stigma on their building that it was built by 1unfair labor,’ and they are also afraid of stoppage of work and unnecessary disputes while their building is in course of construction, and no one can blame them for that.” In the Colorado inquiry, the witness James further testified that the strike order did not make any allowance for stone theretofore ordered. “We were trying to affect the Bedford people through the local man.” “Q. So the only person injured would be your own local man, who is your employer, and your personal friend, is that it? “A. In a way. If it was finished that way, he would be the only one hurt. We are not fighting on this Denver man. We are trying to force these people through the other subcontractors all over the country. “Q. You are trying to force the Bedford to employ members of your union to do this work? “A. Yes, sir. “Q. And irrespective of who it hurts, that is the object? “A. That is the object. It is done from our headquarters. “Q. Mr. Fernaid, or anybody else, they have got to get out of the road, that is the object? “A. We are trying to gain this point, irrespective of who it hurts.” From a consideration of all the evidence, it is apparent that the enforcement of the general order to strike against petitioners’ product could have had no purpose other than 46 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. that of coercing or inducing the local employers to refrain from purchasing such product. To accept the assertion made here to the contrary, would be to say that the order and the effort to enforce it were vain and idle things without any rational purpose whatsoever. And indeed, on the argument, in answer to a question from the bench, counsel for respondents very frankly said that, unless petitioners’ interstate trade in the so-called unfair stone were injuriously affected, the strikes would accomplish nothing. That the means adopted to bring about the contemplated restraint of commerce operated after physical transportation had ended is immaterial. Loewe v. Lawlor, 208 U. S. 274, 301; Boyle v. United States, 259 Fed. 803, 805-806. The product against which the strikes were directed, it is true, had come to rest in the respective localities to which it had been shipped, so that it had ceased to be a subject of interstate commerce, Industrial Assn. v. United States, 268 U. S. 64, 78-79; and interferences for a purely local object with its use, with no intention, express or implied, to restrain interstate commerce, it may be assumed, would not have been a violation of the Anti-Trust Act. Id., p. 77; United Mine Workers v. Coronado Co., 259 U. S. 344, 410-411. But these interferences were not thus in pursuit of a local motive,—they had for their primary aim restraint of the interstate sale and shipment of the commodity. Interstate commerce was the direct object of attack “ for the sake of which the several specific acts and courses of conduct [were] done and adopted.” And the restraint of such* commerce was the necessary consequence of the acts and conduct and the immediate end in view. Swift & Co. v. United States, 196 U. S. 375, 397. Prevention of the use of petitioners’ product, which, without more, might have been a purely local matter, therefore, was only a part of the conspiracy, which must be construed as an BEDFORD CO v. STONE CUTTERS ASSN. 47 37 Opinion of the Court. entirety; and, when so regarded, the local transactions become a part of the general plan and purpose to destroy or narrow petitioners’ interstate trade. Montague & Co. v. Lowry, 193 U. S. 38, 45-46. In other words, strikes against the local use of the product were simply the means adopted to effect the unlawful restraint. And it is this result, not the means devised to secure it, which gives character to the conspiracy. Respondents’ chief contention is that “ their sole and only purpose . . . was to unionize the cutters and carvers of stone at the quarries.” And it may be conceded that this was the ultimate end in view. But how was that end to be effected? The evidence shows indubitably that it was by an attack upon the use of the product in other states to which it had been and was being shipped, with the intent and purpose of bringing about the loss or serious reduction of petitioners’ interstate business, and thereby forcing compliance with the demands of the unions. And, since these strikes were directed against the use of petitioners’ product in other states, with the plain design of suppressing or narrowing the interstate market, it is no answer to say that the ultimate object to be accomplished was to bring about a change of conduct on the part of petitioners in respect of the employment of union members in Indiana. A restraint of interstate commerce cannot be justified by the fact that the ultimate object of the participants was to secure an ulterior benefit which they might have been at liberty to pursue by means not involving such restraint. Anderson v. Shipowners Association, 272 U. S. 359; Duplex Co. v. Deering, 254 U. S. 443, 468; Ellis n. Inman, Poulsen & Co., 131 Fed. 182,186. The case, therefore, is controlled, not by United Mine Workers v. Coronado Co., supra, and United Leather Workers v. Herkert, 265 U. S. 457, as respondents contend, but by others presently to be discussed. In the United Leather Workers case, it appeared that the strikes 48 OCTOBER TERM, 1926. t Opinion of the Court. 274 U. S. were levelled only against production, and that the strikers (p. 471) “ did nothing which in any way directly interfered with the interstate transportation or sales of the complainants’ product;” and the decision rests upon the ground that there was an entire absence of evidence or circumstances to show that the defendants, in their conspiracy to coerce complainants, were directing their scheme against interstate commerce. United Mine Workers v. Coronado Co., supra, pp. 408-409, is to the same effect. But in the second United Mine Workers case, 268 U. S. 295, 310, this court found sufficient evidence, even where the strike was directed against production, of an intent to restrain interstate commerce, and said: “ The mere reduction in the supply of an article to be shipped in interstate commerce by the illegal or tortious prevention of its manufacture or production is ordinarily an indirect and remote obstruction to that commerce. But when the intent of those unlawfully preventing the manufacture or production is shown to be to restrain or control the supply entering and moving in interstate commerce, or the price of it in interstate markets, their action is a direct violation of the Anti-Trust Act.” In the present case, since the strikes were directed against the use of the product in other states, with the immediate purpose and necessary effect of restraining future sales and shipments in interstate commerce, the determinative decisions to be applied are those pointed out in the United Leather Workers case, at p. 469: “ In Loewe v. Lawlor, 208 U. S. 274, and in Duplex Co. V. Deering, 254 U. S. 443, members of labor unions having a controversy with their employers sought to embarrass the sales by their employers of the product of their manufacture in other States by boycott and otherwise. They were held guilty of a conspiracy against interstate com- BEDFORD CO v. STONE CUTTERS ASSN. 49 37 Opinion of the Court. merce because of their palpable intent to achieve their purpose by direct obstruction of that commerce.” Respondents cite and rely upon Hopkins v. United States, 171 U. S. 578, and Anderson v. United States, 171 U. S. 604. But of those cases we need say no more than that they involved agreements which neither in purpose nor in necessary result related to or had any direct effect upon interstate commerce. With a few changes in respect of the product involved, dates, names and incidents, which would have no effect upon the principles established, the opinion in Duplex Co. v. Deering, supra, might serve as an opinion in this case. The object of the boycott there was precisely the same as it is here, and the interferences with interstate commerce, while they were more numerous and more drastic, did not differ in essential character from the interferences here. A short statement of the case will make this clear. The complainant was a manufacturer of printing presses and conducted its business on the “ open shop ” policy. There had been an unsuccessful strike to enforce the “ closed shop,” the eight-hour day and the union scale of wages. The strikers and the local organizations to which they belonged were affiliated with an international association having a membership of more than sixty thousand. They entered into a combination to restrain complainant’s interstate trade by means of a “ secondary boycott,” in pursuance of which complainant’s customers in another state were warned not to purchase, install or operate its printing presses and threatened with loss and sympathetic strikes should they do so. The strikers threatened a trucking company with trouble if it should haul the presses; incited employees of the trucking company and other men employed by complainant’s customers to strike in order to interfere with the hauling and 5'5514°—28-4 50 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. installation of presses; notified repair shops not to do repair work on the presses; threatened union men with loss of union cards and the blacklist if they assisted in installing the presses; and resorted to other methods of preventing the sale and delivery of complainant’s presses in interstate commerce. This court held that complainant’s business of manufacturing presses and disposing of them in commerce was a property right entitled to protection against unlawful injury or interference; that unrestrained access to the channels of interstate commerce was necessary for the successful conduct of that business; and that the combination to hinder and obstruct such commerce by the means indicated was in violation of the Sherman Anti-Trust Act, as amended by the Clayton Act. The combination was held to constitute a “ secondary boycott,” defined as “ a combination not merely to refrain from dealing with complainant, or to advise or by peaceful means persuade complainant’s customers to refrain (‘primary boycott’), but to exercise coercive pressure upon such customers, actual or prospective, in order to cause them to withhold or withdraw patronage from complainant through fear of loss or damage to themselves should they deal with it.” Whether either kind of boycott was lawful or unlawful at common law was held to be immaterial, and the distinction between a primary and a secondary boycott was only important to be considered upon the question of the proper construction of the Clayton Act; and, as to that, it was distinctly determined that the Clayton Act was not intended to legalize the secondary boycott. The court further held, (p. 467-468) that by prior decisions of this court, it had been settled that a restraint of interstate commerce produced by peaceable persuasion was as much within the prohibition of the Anti-Trust Act as one accomplished by force or threats of force, and that there was nothing in § 20 of the Clayton Act (p. 473 BEDFORD CO v. STONE CUTTERS ASSN. 51 37 Opinion of the Court. et seq.) which modified that rule as applied to the case under review or justified a resort to the secondary boycott. And it was said (p. 477) that the harmful consequences of the opposite construction, adopted by the court below, were illustrated by that case where an ordinary controversy in a manufacturing establishment, concerning terms and conditions of employment there, had been held a sufficient occasion for imposing a general embargo upon the products of the establishment and a nation-wide blockade of the channels of interstate commerce against them. The conclusion was reached that complainant was entitled to an injunction under the Sherman Act as amended by the Clayton Act, and that it was unnecessary to consider whether a like result would follow under the common law or local statutes. Finally, it is important to note (p. 478) the scope of the injunction which was authorized. Not only were the association and its members to be restrained from interfering with the sale, transportation, or delivery in interstate commerce of the presses, but also from interfering with the “ carting, installation, use, operation, exhibition, display, or repairing of any such press or presses, . . . and especially from using any force, threats, command, direction, or even persuasion with the object or having the effect of causing any person or persons to decline employment, cease employment, or not seek employment, or to refrain from work or cease working under any person, firm, or corporation being a purchaser or prospective purchaser of any printing press or presses from complainant, . . Loewe v. Lawlor, supra, also dealt with a secondary boycott. The case arose before the enactment of the Clayton Act, but, in view of what has just been said, that is not important. The defendants, certain labor organizations and the members thereof, undertook to compel complainants to unionize their factory. Being unsuccessful, the members of the labor organizations withdrew from com 52 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. plainants’ service and endeavored to persuade others to do the same. Defendants then declared a boycott against hats manufactured by complainants found in the hands of their customers in other states, with the purpose and intent to destroy or curtail complainants’ market in other states and thereby coerce compliance with defendants’ demands. This was held (pp. 292-294) to be a combination falling “ within the class of restraints of trade aimed at compelling third parties and strangers involuntarily not to engage in the course of trade except on conditions that the combination imposes,” and an unlawful restraint of interstate commerce as defined by the Anti-Trust Act. Referring to earlier cases, it was said (p. 297) that the Anti-Trust Act had a broader application than the prohibition of restraints of trade unlawful at common law, and that its effect was to declare illegal “ every contract, combination or conspiracy, in whatever form, of whatever nature, and whoever may be the parties to it, which directly or necessarily operates in restraint of trade or commerce among the several States.” In United States v. Brims, 272 U. S. 549, a criminal case, this court dealt with a combination of manufacturers, contractors and carpenters in Chicago, having for its object the destruction of the competition of nonunion mills in Wisconsin and elsewhere by the employment in Chicago of union carpenters only, with the understanding that they would refuse to install nonunion-made millwork. There was evidence tending to show that so-called outside competition was cut down and thereby interstate commerce directly and materially impeded, and that this result was within the intention of the combination, which, upon these facts, was held to be in violation of the Anti-Trust Act. In Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 438-439, this court said that the restraining powers of the courts extend to every device whereby commerce is file- BEDFORD CO v. STONE CUTTERS ASSN. 53 37 Opinion of the Court. gaily restrained; and that—“ To hold that the restraint of trade under the Sherman anti-trust act, or on general principles of law, could be enjoined, but that the means through which the restraint was accomplished could not be enjoined would be to render the law impotent.” In cases arising outside the Anti-Trust Act, involving strikes like those here under review against so-called unfair products, there is a sharp conflict of opinion. On the one hand, it is said that such a strike is justified on the ground of self-interest; that the injury to the producer is inflicted, not maliciously, but in self-defense; that the refusal of the producer to deal with the union and to observe its standards threatens the interest of all its members and the members of the affiliated locals; and that a strike against the unfair material is a mere recognition of this unity of interest, and in refusing to work on such material the union is only refusing to aid in its own destruction. The opposite view is illustrated by such cases as Toledo, etc., Ry. Co. v. Pennsylvania Co., 54 Fed. 730; Thomas v. Cincinnati, etc., Ry. Co., 62 Fed. 803, 817, et seq.; Moores v. Bricklayers’ Wnion, 23 Wkly. Cin. Law Bull. 48 (affirmed by the Supreme Court of Ohio without opinion); Burnham v. Dowd, 217 Mass. 351; Purvis v. United Brotherhood, 214 Pa. St. 348; Booth & Brother v. Burgess, 72 N. J. Eq. 181, 188, 196; Piano & Organ Workers v. P. & 0. Supply Co., 124 Ill. App. 353. Bui with this conflict we have no concern in the present case. The question which it involves was presented and considered in the Duplex Co. case, supra, as the prevailing and the dissenting opinions show; and there it was plainly held that the point had no bearing upon the enforcement of the Anti-Trust Act, and that since complainant had a clear right to an injunction under that Act as amended by the Clayton Act, it was “ unnecessary to consider whether a like result would follow under the common law or local statutes.” 54 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. Whatever may be said as to the motives of the respondents or their general right to combine for the purpose of redressing alleged grievances of their fellow craftsmen or of protecting themselves or their organizations, the present combination deliberately adopted a course of conduct which directly and substantially curtailed, or threatened thus to curtail, the natural flow in interstate commerce of a very large proportion of the building limestone production of the entire country, to the gravely probable disadvantage of producers, purchasers and the public; and it must be held to be a combination in undue and unreasonable restraint of such commerce within the meaning of the Anti-Trust Act as interpreted by this court. An act which lawfully might be done by one, may when done by many acting in concert take on the form of a conspiracy and become a public wrong, and may be prohibited if the result be hurtful to the public or to individuals against whom such concerted action is directed, Grenada Lumber Co. v. Mississippi, 217 U. S. 433, 440; and any suggestion that such concerted action here may be justified as a necessary defensive measure is completely answered by the words of this court in Eastern States Lumber Ass’n v. United States, 234 U..S. 600, 613, that “Congress, with the right to control the field of interstate commerce, has so legislated as to prevent resort to practices which unduly restrain competition or unduly obstruct the free flow of such commerce, and private choice of means must yield to the national authority thus exerted.” The record does not disclose whether petitioners at the time of bringing suit had suffered actual injury; but that is not material. An intent to restrain interstate commerce being shown, it is enough to justify equitable interposition by injunction if there be a dangerous probability that such injury will happen; and this clearly appears. The Anti-Trust Act “ directs itself against that dangerous probability as well as against the completed result.” Swift BEDFORD CO v. STONE CUTTERS ASSN. 55 37 Stone, J., concurring. & Co. v. United States, supra, p. 396; Vicksburg Waterworks Co. v. Vicksburg, 185 U. S. 65, 82; Thomson Machine Co. v. Brown, 89 N. J. Eq. 326, 328. From the foregoing review, it is manifest that the acts and conduct of respondents fall within the terms of the Anti-Trust Act; and petitioners are entitled to relief by injunction under § 16 Of the Clayton Act, c. 323, 38 Stat. 730, 737, by which they are authorized to sue for such relief “ against threatened loss or damage by a violation of the anti-trust laws,” etc, The strikes, ordered and carried out with the sole object of preventing the use and installation of petitioners’ product in other states, necessarily threatened to destroy or narrow petitioners’ interstate trade by taking from them their customers. That the organizations, in general purpose and in and of themselves, were lawful and that the ultimate result aimed at may not have been illegal in itself, are beside the point. Where the means adopted are unlawful, the innocent general character of the organizations adopting them or the lawfulness of the ultimate end sought to be attained, cannot serve as a justification. Decree reversed. Mr. Justice Sanford, concurring. I concur in this result upon the controlling authority of Duplex Company v. Deering, 254 U. S. 443, 478, which, as applied to the ultimate question in this case, I am unable to distinguish. The separate opinion of Mr. Justice Stone. As an original proposition, I should have doubted whether the Sherman Act prohibited a labor union from peaceably refusing to work upon material produced by non-union labor or by a rival union, even though inter- 56 OCTOBER TERM, 1926. Brandéis and Holmes, JJ., dissenting. 274U.S. state commerce were affected. In the light of the policy adopted by Congress in the Clayton Act, with respect to organized labor, and in the light of Standard Oil Co. v. United States, 221 U. S. 1; United States v. American Tobacco Co., 221 IT. S. 106, 178-180, I should not have thought that such action as is now complained of was to be regarded as an unreasonable and therefore prohibited restraint of trade. But in Duplex Printing Press Co. v. Deering, 254 U. S. 443, these views were rejected by a majority of the court and a .decree was authorized restraining in precise terms any agreement not to work or refusal to work, such as is involved here. Whatever additional facts there may have been in that case, the decree enjoined the defendants from using “even persuasion with the object or having the effect of causing any person or persons to decline employment, cease employment, or not seek employment, or to refrain from work or cease working under any person, firm, or corporation being a purchaser or prospective purchaser of any printing press or presses from complainant, . . .” (p. 478). These views, which I should not have hesitated to apply here, have now been rejected again largely on the authority of the Duplex case. For that reason alone, I concur with the majority. Mr. Justice Brandeis, dissenting. The constitution of the Journeymen Stone Cutters’ Association provides: “No member of this Association shall cut, carve or fit any material that has been cut by men working in opposition to this Association.” For many years, the plaintiffs had contracts with the Association under which its members were employed at their several quarries and works. In 1921, the plaintiffs refused to renew the contracts because certain rules or conditions proposed by the Journeymen were unacceptable. BEDFORD CO v. STONE CUTTERS ASSN. 57 37 Brandeis and Holmes, JJ., dissenting. Then came a strike. It was followed by a lockout, the organization by the plaintiffs of a so-called independent union, and the establishment of it at their plants. Repeated efforts to adjust the controversy proved futile. Finally, the Association urged its members working on buildings in other States to observe the above provision of its constitution. Its position was “ that if employers will not employ our members in one place, we will decline to work for them in another, or to finish any work that has been started or partly completed by men these employers are using to combat our organization.” The trial court dismissed the bill. The United States Circuit Court of Appeals affirming the decree said: “After long negotiations and failure to reach a new working agreement, the union officers ordered that none of its members should further cut stone which had been partly cut by non-union labor, with the result that on certain jobs in different states stone cutters, who were members of the union, declined to do further cutting upon such stone. Where, as in some cases, there were few or no local stone cutters except such as belonged to the union, the completion of the buildings was more or less hindered by the order, the manifest object of which was to induce appellants to make a contract with the union for employment of only union stonecutters in the Indiana limestone district. It does not appear that the quarrying of stone, or sawing it into blocks, or the transportation of it, or setting it in buildings, or any other building operation, was sought to be interfered with, and no actual or threatened violence appears, no picketing, no boycott, and nothing of that character.” If, in the struggle for existence, individual workingmen may, under any circumstances, co-operate in this way for self-protection even though the interstate trade of another is thereby restrained, the lower courts were clearly right in denying the injunction sought by plaintiffs. I have 58 OCTOBER TERM, 1926. Brandéis and Holmes, JJ., dissenting. 274 U. S. no occasion to consider whether the restraint, which was applied wholly intrastate, became in its operation a direct restraint upon interstate commerce. For it has long been settled that only unreasonable restraints are prohibited by the Sherman Law.1 Standard Oil Co. v. United States, 221 U. S. 1, 56-58; United States v. American Tobacco Co., 221 U. S. 106, 178-180; Chicago Board of Trade v. United States, 246 U. S. 231, 238; United States v. Trenton Potteries Co., 273 U. S. 392, 396. Compare United States v. Terminal Ass’n, 224 U. S. 383; United States v. Reading Co., 226 U. S. 324, 369. And the restraint imposed was, in my opinion, a reasonable one. The Act does not establish the standard of reasonableness. What is reasonable must be determined by the application of principles of the common law, as administered in federal courts unaffected by state legislation or decisions. Compare Duplex Printing Co. v. Deering, 254, U. S. 443, 466. Tested by these principles, the propriety of the unions’ conduct can hardly be doubted by one who believes in the organization of labor. Neither the individual stonecutters nor the unions had any contract with any of the plaintiffs or with any of their customers. So far as’ concerned the plaintiffs and their customers, the individual stonecutters were free either to work or to abstain from working on stone which had been cut at the quarries by members of the employers’ union. So far as concerned the Association, the individual stonecutter was not free. He had agreed, when he became a member, that he would not work on stone “ cut by men working in opposition to ” the Association. It was in duty bound to urge upon its members observance of the obligation assumed. These cut stone companies, who alone are seeking relief, were its declared 1 The contrary view was unsuccessfully contended for by Mr. Justice Harlan, dissenting, in Standard Oil Co. v. United States, 221 U. 8. 1, 85-100. BEDFORD CO v. STONE CUTTERS ASSN. 59 37 Brandeis and Holmes, JJ., dissenting. enemies. They were seeking to destroy it. And the danger was great. The plaintiffs are not weak employers opposed by a mighty union. They have large financial resources. Together, they ship 70 per cent, of all the cut stone in the country. They are not isolated concerns. They had combined in a local employers’ organization. And their organization is affiliated with the national employers’ organization, called “ International Cut Stone & Quarrymen’s Association.” Standing alone, each of the 150 Journeymen’s locals is weak. The average number of members in a local union is only 33. The locals are widely scattered throughout the country. Strong employers could destroy a local “ by importing scabs ” from other cities. And many of the builders by whom the stonecutters were employed in different cities, are strong. It is only through combining the 5,000 organized stonecutters in a national union, and developing loyalty to it, that the individual stonecutter anywhere can protect his own job. The manner in which these individual stonecutters exercised their asserted right to perform their union duty by refusing to finish stone “ cut by men working in opposition to” the Association was confessedly legal. They were innocent alike of trespass and of breach of contract. They did not picket. They refrained from violence, intimidation, fraud and threats. They refrained from obstructing otherwise either the plaintiffs or their customers in attempts to secure other help. They did not plan a boycott against any of the plaintiffs or against builders who used the plaintiffs’ product. On the contrary, they expressed entire willingness to cut and finish anywhere any stone quarried by any of the plaintiffs, except such stone .as had been partially “ cut by men working in opposition to ” the Association. A large part of the plaintiffs’ product consisting of blocks, slabs and sawed work was not 60 OCTOBER TERM, 1926. Brandéis and Holmes, JJ., dissenting. 274 U. S. affected by the order of the union officials. The individual stonecutter was thus clearly innocent of wrongdoing, unless it was illegal for him to agree with his fellow craftsmen to refrain from working on the “ scab ’’-cut stone because it was an article of interstate commerce. The manner in which the Journeymens’ unions acted was also clearly legal. The combination complained of is the co-operation of persons wholly of the same craft, united in a national union, solely for self-protection. No outsider—be he quarrier, dealer, builder or laborer—was a party to the combination. No purpose was to be subserved except to promote the trade interests of members of the Journeymens’ Association. There was no attempt by the unions to boycott the plaintiffs. There was no attempt to seek the aid of members of any other craft, by a sympathetic strike or otherwise. The contest was not a class struggle. It was a struggle between particular employers and their employees. But the controversy out of which it arose, related, not to specific grievances, but to fundamental matters of union policy of general application throughout the country. The national Association had the duty to determine, so far as its members were concerned, what that policy should be. It deemed the maintenance of that policy a matter of vital interest to each member of the union. The duty rested upon it to enforce its policy by all legitimate means. The Association, its locals and officers were clearly innocent of wrongdoing, unless Congress has declared that for union officials to urge members to refrain from working on stone “ cut by men working in opposition ” to it is necessarily illegal if thereby the interstate trade of another is restrained. The contention that earlier decisions of this Court compel the conclusion that it is illegal seems to me unfounded. The cases may support the claim that, by such local abstention from work, interstate trade is restrained. But ex- BEDFORD CO v. STONE CUTTERS ASSN. 61 37 Brandeis and Holmes, JJ., dissenting. amination of the facts in those cases makes clear that they have no tendency whatsoever to establish that the restraint imposed by the unions in the case at bar is unreasonable. The difference between the simple refraining from work practiced here, and the conduct held unreasonable in Duplex Printing Press Co. v. Deering, 254 U. S. 443, appears from a recital in that opinion of the defendants’ acts: “ The acts embraced the following, with others: warning customers that it would be better for them not to purchase, or having purchased not to install, presses made by complainant, and threatening them with loss should they do so; threatening customers with sympathetic strikes in other trades; notifying a trucking company usually employed by customers to haul the presses not to do so, and threatening it with trouble if it should; inciting employees of the trucking company, and other men employed by customers of complainant, to strike against their respective employers in order to interfere with the hauling and installation of presses, and thus bring pressure to bear upon the customers; notifying repair shops not to do repair work on Duplex presses; coercing union men by threatening them with loss of union cards and with being blacklisted as ‘ scabs ’ if they assisted in installing the presses; threatening an exposition company with a strike if it permitted complainant’s presses to be exhibited; and resorting to a variety of other modes of preventing the sale of presses of complainant’s manufacture in or about New York City, and delivery of them in interstate commerce, such as injuring and threatening to injure complainant’s customers and prospective customers, and persons concerned in hauling, handling, or installing the presses.” (pp. 463-4.) The character of the acts held in Duplex Printing Press Co. v. Deering to constitute unreasonable restraint is fur- 62 OCTOBER TERM, 1926. Brandéis and Holmes, JJ., dissenting. 274 U. S. ther shown by the scope of the injunction there prescribed (pp. 478-479): “There should be an injunction against defendants and the associations represented by them, and all members of those associations, restraining them, according to the prayer of the bill, from interfering or attempting to interfere with the sale, transportation, or delivery in interstate commerce of any printing press or presses manufactured by complainant, or the transportation, carting, installation, use, operation, exhibition, display, or repairing of any such press or presses, or the performance of any contract or contracts made by complainant respecting the sale, transportation, delivery, or installation of any such press or presses, by causing or threatening to cause loss, damage, trouble, or inconvenience to any person, firm, or corporation concerned in the purchase, transportation, carting, installation, use, operation, exhibition, display or repairing of any such press or presses, or the performance of any such contract or contracts; and also and especially from using any force, threats, command, direction, or even persuasion with the object or having the effect of causing any person or persons to decline employment, cease employment, or not seek employment, or to refrain from work or cease working under any person, firm, or corporation being a purchaser or prospective purchaser of any printing press or presses from complainant, or engaged in hauling, carting, delivering, installing, handling, using, operating, or repairing any such press or presses for any customer of complainant. Other threatened conduct by defendants or the associations they represent, or the members of such associations, in furtherance of the secondary boycott should be included in the injunction according to the proofs.” The difference between the facts here involved and those in the Duplex case does not lie only in the character of the acts complained of. It lies also in the occasion and BEDFORD CO v. STONE CUTTERS ASSN. 63 37 Brandeis and Holmes, JJ., dissenting. purpose of the action taken and in the scope of the combination. The combination there condemned was not, as here, the co-operation for self-protection only of men in a single craft. It was an effort to win by invoking the aid of others, both organized and unorganized, not concerned in the trade dispute. The conduct there condemned was not, as here, a mere refusal to finish particular work begun “by men working in opposition to” the union. It was the institution of a general boycott, not only of the business of the employer, but of the businesses of all who should participate in the marketing, installation or exhibition of its product. The conduct there condemned was not, as here, action taken for self-protection against an opposing union installed by employers to destroy the regular union with which they long had had contracts. The action in the Duplex case was taken in an effort to unionize an open shop. Moreover, there the combination of defendants was aggressive action directed against an isolated employer. Here it is defensive action of workingmen directed against a combination of employers. The serious question on which the Court divided in the Duplex case was not whether the restraint imposed was reasonable. It was whether the Clayton Act had forbidden federal courts to issue an injunction in that class of cases. See p. 464. In Loewe v. Lawlor, 208 U. S. 274; Gompers v. Bucks Stove Co., 221 U. S. 418; and Lawlor v. Loewe, 235 U. S. 522, the conduct held unreasonable was not, as here, a refusal to finish a product partly made by members of an opposing union. It was invoking the power of the consumer as a weapon of offensive warfare. There, a general boycott was declared of the manufacturer’s product. And the boycott was extended to the businesses of both wholesalers and retailers who might aid in the marketing of the manufacturer’s product. Moreover, the boycott was to be effected, not by the co-operation merely of the few members of the craft directly and vitally interested 64 OCTOBER TERM, 1926. Brandeis and Holmes, J J., dissenting. 274 U. S. in the trade-dispute, but by the aid of the vast forces of organized labor affiliated with them through the American Federation of Labor. In United States v. Brims, 272 U. S. 549, the combination complained of was not the co-operation merely of workingmen of the same craft. It was a combination of manufacturers of millwork in Chicago, with building contractors who cause such work to be installed, and the unions whose members are to be employed. Moreover the purpose of the combination was not primarily to further the interests of the union carpenters. The immediate purpose was to suppress competition with the Chicago manufacturers. As this Court said: “The respondent manufacturers found their business seriously impeded by the competition of material made by nonunion mills located outside of Illinois. . . . They wished to eliminate the competition of Wisconsin and other nonunion mills which were paying lower wages and consequently could undersell them. . . . The local manufacturers, relieved from the competition that came through interstate commerce, increased their output and profits; they gave special discounts to local contractors; more union carpenters secured employment in Chicago and their wages were increased. These were the incentives which brought about the combination.” In United Mine Workers v. Coronado Co., 259 U. S. 344; 268 U. S. 295; United Leather Workers v. Herkert, 265 U. S. 457; Industrial Association v. United States, 268 U. S. 64, as in Hopkins v. United States, 171 U. S. 578; Anderson v. United States, 171 U. S. 604; Montague v. Lowry, 193 U. S. 38, and Swtft & Co. v. United States, 196 U. S. 375, the questions put in issue were not the reasonableness of the restraint, but whether the restraint was of interstate commerce. Members of the Journeymen Stone Cutters’ Association could not work anywhere on stone which had been cut at the quarries by “men working in opposition” to it, NORTHERN RY. CO. v. PAGE. 65 37 Syllabus. without aiding and abetting the enemy. Observance by each member of the provision of their constitution which forbids such action was essential to his own self-protection. It was demanded of each by loyalty to the organization and to his fellows. If, on the undisputed facts of this case, refusal to work can be enjoined, Congress created by the Sherman Law and the Clayton Act an instrument for imposing restraints upon labor which reminds of involuntary servitude. The Sherman Law was held in United States v. United States Steel Corporation, 251 U. S. 417, to permit capitalists to combine in a single corporation 50 per cent, of the steel industry of the United States dominating the trade through its vast resources. The Sherman Law was held in United States v. United Shoe Machinery Co., 247 tT. S. 32, to permit capitalists to combine in another corporation practically the whole shoe machinery industry of the country, necessarily giving it a position of dominance over shoe-manufacturing in America. It would, indeed, be strange if Congress had by the same Act willed to deny to members of a small craft of workingmen the right to cooperate in simply refraining from work, when that course was the only means of self-protection against a combination of militant and powerful employers. I cannot believe that Congress did so. Mr. Justice Holmes concurs in this opinion. NORTHERN RAILWAY COMPANY v. PAGE et al., ADMINISTRATORS. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. No. 136. Argued January 17, 1927.—Decided April 11, 1927. Costa Rican troops on a railway train fired into a train of the defendant and shot the plaintiff, a passenger. The negligence alleged was that defendant knew the troops had reasonable cause to believe the passenger train was transporting armed hostile forces and failed 55514°—28----5 66 OCTOBER TERM, 1926. Opinion of the Court. 274 U. 8. seasonably and adequately to inform the government troops that this was not so. Held, 1. Plaintiff had the burden to show that the specified negligence was the proximate cause of his injuries, and a verdict in his favor can not be sustained if essential facts are left to conjecture and speculation. P. 72. 2. There being no evidence that the conductor did not notify those in charge of the troops that there were no hostile forces on the passenger train, his failure to testify on that point does not permit an inference that he was not in position so to state. P. 73. 3. The mere fact of the shooting does not tend to show defendant was at fault; the uncontradicted evidence shows that the shooting could not reasonably have been anticipated as the natural and probable result of the failure of defendant to inform the government forces, earlier or otherwise than was done, that there were no insurrectos on the train. P. 75. 3 F. (2d) 747, reversed. Certiorari (269 U. S. 542) to a judgment of the Circuit Court of Appeals which reversed a judgment of the District Court, entered on an alternative verdict for defendant, and directed the District Court to enter judgment on the verdict of damages for the plaintiff, in an action for personal injuries suffered by the plaintiff while a passenger on defendant’s railway in Costa Rica, when the train was fired upon by Costa Rican troops. Mr. Robert G. Dodge, with whom Mr. John M. Raymond was on the brief, for petitioner. Mr. Charles F. Perkins, with whom Mr. Paul F. Perkins was on the brief, for respondents. Mr. Justice Butler delivered the opinion of the Court. This action was brought in the District Court of Massachusetts by Michael B. Ryan against the petitioner and the United Fruit Company to recover damages for personal injuries sustained by him, February 23, 1918, in Costa Rica while a passenger on a railway train alleged to have been operated by both companies. A verdict was directed for the Fruit Company. No question as to its NORTHERN RY. CO. v. PAGE. 67 65 Opinion of the Court. liability is presented here. We may refer to the railway company as the defendant. On the day before plaintiff was hurt a small insurrection broke out in a part of Costa Rica west of San José, the capital. Plaintiff was traveling on the regular morning passenger train running easterly from that city to Port Limon on the Atlantic coast. At Turrialba, about 65 miles from Port Limon, the train was held up by insurrectos. Its seizure was reported to the Governor at Port Limon, and he sent out a train containing government troops. After detention for some hours the passenger train was allowed to go. The railroad is a single track line having sidings at various places. Both trains were given orders to meet at La Pascua. The passenger train was the first to arrive at that place and went upon the side track to let the troop train pass. The officers of the troop train gave an order to, and the troops did, fire upon the passenger cars. Some passengers were killed and others, including the plaintiff, were seriously injured. At the close of the evidence, the district judge, doubting whether there was anything to show negligence on the part of the defendant, submitted the case to the jury; and, in accordance with the practice in Massachusetts and that federal district, directed the jury that, if they found for the plaintiff, they should also return an alternative verdict for defendant, which could be entered if later it should be held as a matter of law that plaintiff was not entitled to recover. General Laws of Massachusetts, c. 231, § 120; Automatic Pencil Sharpener Co. v. Boston Pencil Pointer Co., 279 Fed. 40. The jury gave plaintiff a verdict for $25,000 and made the alternative finding as directed. Afterwards, on motion of the defendant, the district judge set aside the verdict for plaintiff and entered the alternative verdict. He held that there was no evidence to support a finding against defendant. Subsequently, plaintiff died; his administrators were made parties, and judgment 68 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. was entered for defendant. The case was taken to the Circuit Court of Appeals, and that court vacated the judgment of the District Court, set aside the verdict for defendant, and remanded the case with directions to reinstate the verdict and give judgment for plaintiffs. 3 F. (2d) 747. This Court granted defendant’s petition for a writ of certiorari. 269 U. S. 542. At the trial plaintiff called a witness familiar with Costa Rica law. He testified in substance: One who through his fault causes injury to another is bound to make reparation. If a corporation is to be held, the negligence must be that of a person who stands in position of representative. One in immediate charge of a train is held to be the representative of the railroad company for the purpose of that operation. The rule that a high degree of care is owed by a railroad carrier to its passengers does not prevail in that country. The duty owed is uniform. It is the care exercised by a diligent head of a family—a prudent and diligent person who is his own master. In the absence of negligence on the part of the carrier, it is not liable for injuries sustained by passengers. The witness cited §§ 1045 and 1048 of the Code of Costa Rica. Plaintiff sought recovery on the ground that defendant knew that the troops had reasonable cause to believe that the passenger train was transporting armed hostile forces and failed seasonably and adequately to inform the government troops and their officers that there were no insurrectos on the passenger train. There is little or no controversy as to the facts. The passenger train left San José at eight in the morning and was due at Port Limon at 4.30 in the afternoon. It consisted of locomotive, five freight cars, a combination baggage and second-class passenger car, one or two first-class coaches, and a pay car carrying gold, silver and express parcels. Ramsay was the conductor; he and other members of the crew were regular employees of defendant. NORTHERN RY. CO. v. PAGE. 69 65 Opinion of the Court. The passengers were men, women and children—some natives and some foreigners. The train arrived at Tur-rialba at half after eleven. There the insurrectos held it up and searched for persons connected with the Government. One was taken on suspicion, but no one else was molested. The officers in command gave assurance that the train Would be detained only while the insurrectos used the engine to destroy track between that place and San José. About a quarter before six, the train was allowed to go. As it was leaving, an officer ordered some insurrectos to go and blow up the bridge at Torito, which is about two miles east of Turrialba. When the train arrived at Torito, all the insurrectos got off. The train went to Peralta, four or five miles further on, where the conductor received an order to pass a special train at La Pascua, which was five or six miles ahead. No information was given him that this was the train carrying troops. That train left Port Limon about half after three. It was also in charge of regular employees of the defendant. The train crew and the officers in command of the troops knew that the passenger train had been held up by the insurrectos. The troops were ordered to Turrialba to meet the rebels. At Las Lomas orders were received to pass an extra or special train at La Pascua, about six miles west. The troop train arrived at La Pascua about seven o’clock. We quote from the record: “Grant, a witness called for the plaintiff, testified on direct examination as follows: ‘When the cars came close enough you could see guns sticking out of the windows in perfect alignment, and see troops standing on the steps, ... I believe somebody on the ground, Mr. Ramsay or Mr. Veitch or somebody else there, mentioned that it was a troop train going up to attack these revolutionists.’ When the locomotive of the troop train arrived opposite the combination baggage and pas- 70 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. senger car, Ramsay flagged it and told the engineer to look out for the Torito bridge where he had left revolutionists, that he would probably find it torn up. Two officers then alighted from the troop train and one said to Ramsay ‘What train is this?’ ... he replied that it was the regular passenger train from San José to Limon. He told the officer in English and then in Spanish that there were no revolutionists on board. Ramsay testified that he knew the officer by sight as he had traveled on his train before. At the same time the other officer was speaking to one Veitch . . . He asked Veitch what the train was, and Veitch replied that it was the passenger train from San José to Limon, and that there were no revolutionists on board. Veitch had been an importer and banana grower in Costa Rica for eleven years prior to 1918, and was then consular agent for the Italian Government. Ramsay then signaled his train to proceed, the officers demanded that it be halted, which was done. The troop train then began to move forward, the officers walking beside it. When the passenger cars of the troop train were approximately opposite the passenger coaches of the passenger train, and while the troop train was still in motion, although coming to a stop, one of the officers raised his sword and waved it and an order to fire was given. Immediately the firing began by the troops, some kneeling in the car with their guns extending out of the windows about three feet, and some on the platforms.” The record contains nothing that in any material or substantial particular conflicts with that account of what there occurred. In fact, it is supported by the testimony given by plaintiff in his own behalf. He said: The passenger train went upon the siding at La Pascua and was there five or ten minutes before the troop train arrived. He remained in the coach. Some of the passengers got off the train and walked about. When the troop NORTHERN RY. CO. v. PAGE. 71 65 Opinion of the Court. train first stopped the engines were about opposite each other. He saw Conductor Ramsay and the officers in command of the troops talking, but did not hear what they said. There was nothing to indicate that any one was alarmed or expected trouble. The troop train pulled up and stopped so that a troop car was opposite plaintiff’s car. The weather was warm and the windows of the passenger cars were open. There was nothing to indicate that it was other than an ordinary passenger train. There had been no sign of hostility. The troops, lined up in their car, fired into the windows of the passenger cars. There were about twenty passengers in plaintiff’s car; some were in the aisle and some were looking out the windows. And plaintiff testified that it was light enough so that one could see a considerable distance; that, when the troop train first stopped, he could see Conductor Ramsay apparently talking to the officers in charge of the troops, “ That would be probably 100, 150 maybe 200 feet. I don’t remember. It was the full length of the train. We were pretty nearly back.” He said that it was light enough for him to see Ramsay and the officers at that distance; and, although it was dusk at the time, there was good visibility up to 200 feet. Veitch, called as a witness for defendant, testified that, when the troop train stopped and while Ramsay was talking to one of the officers, he talked to the other officer and told him that it was a passenger train from San José to Port Limon and that there were no revolutionists on board. Later he heard this officer give command to the troops to fire, and firing began immediately. He stood there until he saw guns pointed at him and then went under the train; they put two bullets through his clothes and two through a valise he was carrying; and he saw them shoot and kill a man who was leaning out of a coach window. On the day of the shooting, the general manager of the company was at its offices at Port Limon. He testi- 72 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. fied that, when he learned that the insurrectos had held up the train, he notified the Governor who was also at Port Limon; and that, when he learned the insurrectos were ready to release the train, he so informed the Governor and the latter instructed him to move the passenger train; that he reminded the Governor that there was a troop train on the line. “ I told him he had better notify the troop train. He said he would. Afterwards he said he did.” And the general manager testified that he promptly telephoned to the yard master at Siquirres, a station east of Las Lomas, to get word to the conductor of the troop train that the passenger train was carrying non-combatants, including women and children. The railway superintendent testified that he notified the Governor of the release of the passenger train and asked and procured authority to move it to Port Limon. The assistant train dispatcher, who came on duty at five o’clock, testified that about a quarter after five Ramsay reported that the train had been released, and later reported from Peralta that all of the revolutionists had got off at Torito to destroy a bridge; that, when the troop train was at Siquirres, he notified the conductor that the passenger train had been released and that “ meet orders ” would be given later; that he communicated with the troop train at Las Lomas that the other train had no revolutionists aboard and gave orders to pass it at La Pascua. The burden was on plaintiff to show that defendant’s negligence, as specified above, was the proximate cause of his injuries. Under familiar rules, plaintiff was entitled to prevail if the evidence and the inferences that a jury might legitimately draw from it were fairly and reasonably sufficient to warrant a finding in his favor. Otherwise the judgment must be for defendant. C. M. & St. P. Ry. v. Coogan, 271 U. S. 472, 478, and cases cited. The verdict cannot be sustained if essential facts NORTHERN RY. CO. v. PAGE. 73 65 Opinion of the Court. are left ill the realm of conjecture and speculation. St. Louis, etc. Ry. v. Mills, 271 U. S. 344, 347. The record does not include or purport to contain all the evidence. It does not show that Ramsay failed to testify as to what he said to the officers in command of the troops before the order to fire was given. It shows that he testified that when the shooting began he called out to the troops that they were firing on passengers and that there were no revolutionists on the train. And, in the paragraph quoted, the bill of exceptions shows that plaintiff’s witness, Grant, testified that when Ramsay flagged the troop train, he told one of the officers that his was the regular passenger train and that there were no revolutionists on board. In the opinion of the majority of the Circuit Court of Appeals it is said (p. 752): “ The jury might have found that, inasmuch as Ramsay, the conductor, did not testify as to what he said to the officers in charge of the troops prior to the shooting, but did testify that when the shooting began he cried out that there were no revolutionists on the train, nothing of the kind was said until after the shooting began; that the troops and their officers never received any information as to the harmless character of the occupants of the train, or received it too late and under such circumstances as to render it unavailable.” This view cannot be sustained. There was no basis for the court’s assumption. There was nothing reasonably to warrant the rejection of Grant’s testimony. Indeed, plaintiff’s own testimony tended to corroborate Grant. And the district judge in charging the jury assumed as an undisputed fact that when the train stopped the officers were informed by Ramsay and Veitch that there were no revolutionists on the train. The case having been so put to the jury, it is to be assumed that they considered the matter on that basis. Defendant was not required 74 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. to satisfy the jury that it was not guilty of the negligence alleged against it. If Ramsay had not testified at all, his failure so to do could not be taken as substantive evidence of any fact. If, instead of showing that Ramsay had told the officers that no insurrectos were on his train, plaintiff had put in testimony that no such information had been given to the government forces and then Ramsay had remained silent, it would have been permissible to draw an inference that he was not in position to assert the contrary. But that is not the situation here presented. Tully v. Fitchburg Railroad, 134 Mass. 499, 502; Poirier v. Terceiro, 224 Mass. 435, 437; W. F. Corbin & Co. v. United States, 181 Fed. 296, 304; Owens Bottle-Machine Co. v. Kanawha Banking & Trust Co., 259 Fed. 838, 842. There is nothing to support a finding that the officers in charge of the troops were not informed at La Pascua before the order to fire was given that there were no insurrectos on the passenger train. The record discloses no reason for rejecting the testimony of Grant and Veitch. It is to be taken as established that such information was given. And, assuming that a jury properly might decline to believe the testimony of defendant’s officials going to show that the troop train and officers in charge had been so informed before they left Las Lomas, actionable negligence was not made out. There was no evidence that the officers in charge of the troops had any reason to believe that the train they were directed to meet at La Pascua was then carrying insurrectos. Even if there was evidence that they had ground for such belief and that defendant failed to take some precaution, there is nothing to show that such failure caused plaintiff’s injuries. If the direct and positive information as to the harmless character of the train given on the spot by Ramsay and Veitch was not NORTHERN RY. CO. v. PAGE. 75 65 Opinion, of the Court. sufficient, it must be deemed a matter of speculation and conjecture whether any information that defendant could have given would have prevented the shooting. St. Louis, etc. Ry. v. Mills, supra, 347. The mere fact that the troops shot into the passenger train does not tend to show that defendant was at fault. And, when regard is had to the facts and circumstances shown by uncontradicted evidence, it is clear that the shooting was an occurrence that could not reasonably have been anticipated or foreseen as the natural and probable result of any failure of defendant earlier or otherwise to inform the government forces that there were no insurrectos on the passenger train. It follows that there is no ground on which defendant can be held liable for the injuries inflicted on plaintiff by the government forces. Scheffer v. Railroad Co., 105 U. S. 249, 252; Milwaukee, etc. Railway Co. v. Kellogg, 94 U. S. 469, 475; American Bridge Co. n. Seeds, 144 Fed. 605, 609; Jarnagin v. Travelers Protective Ass’n., 133 Fed. 892, 896; Cole v. German Savings and Loan Soc., 124 Fed. 113. In his memorandum on the motion to set aside the verdict, the trial judge said: “I am unable to discover in the evidence anything on which a finding of negligence can be supported or to say, even after the event, in what the defendant’s agents and servants failed. The jury might, of course, reject the testimony of the defendant’s witnesses; but that would not supply evidence of negligence on the defendant’s part. The attack took place, apparently, because the officers in command of the troops lost their heads and behaved with incredible folly. It was an extraordinary occurrence which the defendant had no reason to anticipate and for which it is not liable.” The record fully sustains that statement. Judgment reversed. 76 OCTOBER TERM, 1926. Syllabus. 274 U. S. SOUTHERN RAILWAY COMPANY v. KENTUCKY. DAVIS, DIRECTOR GENERAL, v. KENTUCKY. ERROR TO THE COURT OF APPEALS OF THE STATE OF KENTUCKY Nos. 33, 34. Argued March 15, 16, 1926.—Decided April 11, 1927. 1. A State may tax property permanently within its jurisdiction belonging to one domiciled elsewhere and used to carry on commerce among the States. Where railroad property is a part of a system and has its actual use only in connection with other parts of the system, that fact may be considered even though other parts of the system are outside the State. The mileage basis of apportionment can not be adopted in the taxation of railroad franchises where the result is shown to be arbitrarily excessive. P. 80. 2. The value of the physical elements of a railroad—whether that value be deemed actual cost, cost of reproduction new, cost of reproduction less depreciation or some other figure—is not the sole measure of or guide to its value in operation; much weight is to be given to present and prospective earning capacity at rates that are reasonable, having regard to traffic available and competitive and other conditions prevailing in the territory served. P. 81. 3. No intangible element of substantial amount over and above the value of its physical parts inheres in a railroad that can not earn a reasonable rate of return on the amount attributable in valuation to its bare-bones—as the mere tangible elements properly may be called. P. 82. 4. While the mileage used as an integral part of a railroad system may have elements of value that it otherwise would not possess and the State properly may have regard to the whole in order to ascertain the value of the part that is within its borders, it is not permissible to take into account any of the outside property unless it can be seen in some plain and fairly intelligible way that it adds to the value of the road and the rights exercised in the State. P. 82. SOUTHERN RY. CO. v. KENTUCKY. 77 76 Opinion of the Court. 5. Facts examined and held that the additional values of intangible property on which taxes in question were based are arbitrarily excessive and include values of system property beyond the State. P. 85. 6. Record examined and cause held reviewable on writ of error. P. 86. 204 Ky. 388, reversed. These were proceedings by the Commonwealth instituted in a county court, for the purpose of listing for taxation intangible property of the railway alleged to have been omitted. The first was against the railway alone, covering the years 1914—1916. The second sought like relief for the years 1917-1918, during which the Director General of Railroads operated the railway system. The proceedings, tried together throughout, were dismissed by the county court, and by the circuit court, on appeal. The judgment of the latter was reversed in 193 Ky. 474. Judgments recovered on resubmission to the circuit court were affirmed by the Court of Appeals, except that, in respect of the years 1914 and 1916, the judgment in the first case was reversed. 204 Ky. 388. Mr. Edward P. Humphrey, with whom Messrs. L. E. Jefferies, Alex P. Humphrey, and Charles W. Milner were on the brief, for plaintiffs in error. Mr. J. P. Hobson, with whom Messrs. L. W. Morris, D. L. Hazelrigg, and Frank Daugherty, Attorney General of Kentucky, were on the brief, for defendant in error. Mr. Justice Butler delivered the opinion of the Court. A judgment against plaintiffs in error for franchise taxes imposed under the laws of Kentucky in respect of 78 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. certain lines of railway was affirmed by the highest court of that State. 204 Ky. 388. And see 193 Ky. 474. Reversal is sought on the ground that as applied these laws contravene the due process clause of the Fourteenth Amendment. The statutes* (§§4077-4081) provide that every foreign or domestic railway company, in addition to other taxes imposed by law, shall pay an annual tax on its franchise. The provisions apply whether the privilege is exercised by the corporation in its own name or in the name of another which it adopts. A company’s railway system is deemed to include lines operated, leased or controlled whether technically owned or not. The tax is on intangible property. Where the railroad is partly within and partly without the State, the value of the intangible property so to be taxed may be determined substantially as follows: capitalize the net railway operating income of the entire system for the accounting year last ended; assign to Kentucky its mileage proportion of that amount; deduct the assessed value of the tangible property otherwise taxed; and the remainder is the value taken as the basis for the franchise taxes. When the railroad is wholly within the State, the capitalized net, less the assessed value of tangible property on which other taxes are paid, is taken to be the value of intangible property. Greene v. Louis. & Interurban R. R. Co., 244 U. S. 499, 510, and cases cited; Louis. & Nash. R. R. Co. v. Greene, 244 U. S. 522, 539. Plaintiff in error, the Southern Railway Company, is a Virginia corporation. The lines of its system of railroads, exclusive of the Kentucky mileage in question, exceed 9500 miles and extend from Washington, D. C., into Virginia, the Carolinas, Tennessee, Georgia, Florida, Alabama and Mississippi. The company also has a line from New Albany, Indiana, to East Saint Louis, Illinois. It does *The provisions are printed in the margin of Louis. & Nash. R. R. Co. v, Greene, 244 U. S. 522, at page 533. SOUTHERN RY. CO. v. KENTUCKY. 79 76 Opinion of the Court. not own any railroad in Kentucky. The “ Southern Railway Company in Kentucky ” owns 127.63 miles, all of which are in that State. Its branches connect with the line of the Cincinnati, New Orleans and Texas Pacific Railway Company which extends from Cincinnati to Chattanooga and connects it with the system. Its stock is owned by the Virginia company. The same persons are officers of both. The lines of the Kentucky company are reported to public authorities and are advertised as a part of the system. The Mobile and Ohio Railroad Company, the Cumberland Railroad Company, and the Cumberland Railway Company own, in all, about 53.3 miles of railroad in Kentucky, but their lines are not connected with the lines of the Southern Railway Company in Kentucky. The Virginia company through stock ownership controls these companies; but they and the Southern Railway in Kentucky, in their own names and as owners, made reports and paid in full all taxes assessed under Kentucky laws on their tangible and intangible properties. The Commonwealth brought this suit against the Virginia company and the Director General to recover additional franchise or intangible property taxes for 1918 and 1919 in respect of the Kentucky mileage of these companies. The Court of Appeals held that there was no such connection or unity of use between the system of the Virginia company and the lines of the Mobile and Ohio, the Cumberland Railroad, and the Cumberland Railway as would justify recovery of any franchise taxes in respect of their Kentucky mileage. Stipulated facts tended to show that the Virginia company controlled the Cincinnati, New Orleans and Texas Pacific; and the court held that by means of its lines the railroad of the Southern Railway in Kentucky was so connected with the lines of the Virginia company as to be a part of the system. The value of intangible property adjudged to have been omitted, and on which the additional franchise taxes were 80 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. calculated, for 1918 was $1,730,090.02 and for 1919 was $3,028,592.62. These amounts were arrived at as follows: the net railway operating income for the entire system was capitalized at seven per cent.; there was deducted an amount to cover the value of shops, terminals and double tracks outside Kentucky in excess of corresponding tangible property connected with the lines in that State; there was allocated to Kentucky such proportion of the remainder as 424.61 miles, which were attributed to Kentucky, bore to the total mileage of the system; that amount was equalized for taxation at 75 per cent, for 1918 and at 85 per cent, for 1919; and from the result there was deducted the values of tangible and intangible property (including the Kentucky mileage of the Cincinnati, New Orleans and Texas Pacific) on which taxes had been paid. But the average value per mile so deducted was less than the system average per mile. The amounts so arrived at were assigned to the 127.63 miles of the Southern Railway Company in Kentucky and the 197.5 miles in Kentucky of the lines of the Cincinnati, New Orleans and Texas Pacific. The increase per mile for 1918 was $5,334.55 and for 1919 was $9,338.34. The Court of Appeals rightly declared that a State may tax property permanently within its jurisdiction belonging to one domiciled elsewhere and used to carry on commerce among the States; that, where property is a part of a system and has its actual use only in connection with other parts of the system, that fact may be considered even though other parts of the system are outside the State; that the State may not tax property outside its jurisdiction belonging to one domiciled elsewhere, and that the mileage basis of apportionment cannot be adopted in the taxation of railroad franchises where the result is shown to be arbitrarily excessive. These propositions are derived from the decisions of this Court. SOUTHERN RY. CO. v. KENTUCKY. 81 76 Opinion of the Court. Fargo v. Hart, 193 U. S. 490, 499; Pittsburgh, &c. Railway Co. v. Backus, 154 U. S. 421, 427-431; Union Tank Line Co. v. Wright, 249 U. S. 275, 282; Wallace v. Hines, 253 U. S. 66, 69. The question is whether the State made valid application of the governing principles. The value of tangible property is not involved in this case. The demand of the Commonwealth against the plaintiffs in error was for taxes on intangible properties over and above the amounts that had been paid by the owning companies. And the entire amount added as a basis for additional taxes is attributable only to the lines of the Southern Railway Company in Kentucky. There was no claim for any taxes in respect of the lines of the Cincinnati, New Orleans and Texas Pacific. That company had also reported its earnings and paid taxes on its tangible and intangible properties in Kentucky. These taxes were based on values per mile in excess of the average values per mile for the system arrived at by capitalization of net railway operating income in accordance with the rule applied by the State. No part of the amounts adjudged to have been omitted could properly be assigned thereto. The Mobile and Ohio, the Cumberland Railroad, and the Cumberland Railway were held not to be a part of the system. Plaintiffs in error insist that the enforcement of the taxes on these amounts, as measuring the additional values of intangible properties inhering in the lines of the Southern Railway Company in Kentucky, operates to tax the property of the Virginia company located beyond the borders of Kentucky and that such amounts are arbitrarily excessive. The value of the physical elements of a railroad— whether that value be deemed actual cost, cost of reproduction new, cost of reproduction less depreciation or some other figure—is not the sole measure of or guide to 55514°—28----6 82 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. its value in operation. Smyth n. Ames, 169 U. S. 466, 547. Much weight is to be given to present and prospective earning capacity at rates that are reasonable, having regard to traffic available and competitive and other conditions prevailing in the territory served. No intangible element of substantial amount over and above the value of its physical parts inheres in a railroad that cannot earn a reasonable rate of return on its bare-bones—as the mere tangible elements properly may be called. See Omaha v. Omaha Water Co., 218 U. S. 180, 202. The amount adjudged to have been omitted equals an increase on the lines of the Southern Railway Company in Kentucky of $13,555 per mile for 1918 and of $23,730 for 1919. The 1917 average net operating income per mile for the system was the basis for determining the Kentucky franchise taxes for 1918, and the average for 1918 controlled the amount of the 1919 taxes. The average for the system was $3,642 per mile for 1917 and was $3,623 for 1918. The corresponding net income per mile of the Southern Railway Company in Kentucky for 1917 was $878. There was a loss of $4,741 per mile in 1918. The record also shows a loss in each of the years 1914, 1915 and 1916. The average for the five years was a loss of $1,230 per mile per year. If considered alone, the railroad of the Southern Railway Company in Kentucky would be a losing venture. Its operating loss was more than $157,000 per year for the average of the five years reported in the record. But, assuming it a part of the system, it is right to take into consideration the parts outside the State that are operated in connection with it. The mileage used as an integral part of a railroad system may have elements of value that it otherwise would not possess, and the State properly may have regard to the whole in order to ascertain the value of the part that is within its borders. Fargo v. Hart, supra, 499. But, if the method pursued in valuing prop- SOUTHERN RY. CO. v. KENTUCKY. 83 76 Opinion of the Court. erty within the State is arbitrary and the resulting valuation is grossly excessive, the tax must be condemned as in contravention of the due process clause of the Fourteenth Amendment. Union Tank Line Co. v. Wright, supra, 282, and cases cited. It is not permissible for the State to take into account any of the outside property “ unless it can be seen in some plain and fairly intelligible way that it adds to the value of the road and the rights exercised in the State.” Wallace v. Hines, supra, 69. The operating results of the system compared with those of the Southern Railway Company in Kentucky show that, on the basis of valuation adopted by the State, the average value per mile of the lines of that company is very much less than the average value per mile of the system. If taken separately it is clear that, because of lack of net earnings, no substantial intangible elements of value could reasonably be attributed to the railroad of that company. In order to justify the increases made, there would have to be attributed to these lines large amounts from system earnings. To sustain the addition for 1919, it is necessary to take enough to overcome the deficit of $4,741 per mile plus a fair return on the value of the physical property and on the $23,730 per mile fixed as a basis for additional taxes. The draft on earnings from other parts of the system to sustain the increase for 1918 would not be so heavy. But it is equally obvious that there is no foundation for the finding that there existed in these lines intangible values of $1,730,090 or any other substantial amount in excess of the value fairly to be attributed to the physical elements of the railroad. If intangible elements were attributed to the system at the same rate per mile as results from the distribution of the added amount to the mileage of the Southern Railway in Kentucky, their value would be more than $200,000,000 for 1919 and more than $120,000,000 for 1918. Clearly there is no foundation for any such results. The mere 84 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. statement of the figures is sufficient to show that the amount added as a basis for franchise taxes is so excessive and unreasonable that it cannot be sustained; and such an application of the system earnings amounts to an attempt to tax property outside the State. And as the direct earnings per mile of the lines of that company are so much less than the average for the system, it is plain that the amount adjudged to have been omitted was arbitrarily excessive and included values of system property beyond the limits of Kentucky. Moreover, the percentages used to make the apportionment to Kentucky were too high. Reference to the figures for 1919 will be sufficient. There was taken 4.273 per cent, of $432,326,444.12, the system value to be apportioned. The system mileage was 9939.1, and that used for the apportionment was 424.61. The Southern Railway Company in Kentucky had 127.63 miles, the Cincinnati, New Orleans and Texas Pacific, 197.5, the Mobile and Ohio, 38.693, the Cumberland Railroad, 12.9, and the Cumberland Railway, 1.74. As the court held that the lines of the three companies last mentioned were nof so connected with the system that plaintiffs in error were liable in respect of them, their mileage was erroneously included in the factor used for apportionment to the lines taxed. And for the reasons stated the mileage of the Cincinnati, New Orleans and Texas Pacific should not have been included. The mileage used to make the apportionment was more than three times that of the Southern Railway in Kentucky, and was more than thirty per cent, in excess of the combined mileage of that company and the Cincinnati, New Orleans and Texas Pacific. Obviously deduction of the lesser values of the Kentucky mileage on which the owners had paid taxes did not eliminate the error. The enforcement of the franchise taxes so assessed would violate the due process clause of the Fourteenth Amendment. SOUTHERN RY. CO. v. KENTUCKY. 85 76 Opinion of the Court. The Commonwealth asserts that in the Kentucky courts the company did not make “ the objection which is made here that this was a tax on property outside the State.” But the record shows the contrary. The petition alleged that a portion of the Kentucky franchise had been omitted from assessment and prayed that such portion be assessed and taxed. The answer of plaintiffs in error not only denied liability and alleged that to hold the company liable and to attempt to add to that assessment would be a violation of the Fourteenth Amendment, but it also stated: “ Defendants say that the effort made herein is simply for the purpose of endeavoring to bring into the State of Kentucky for purposes of taxation, property not in Kentucky, and values appertaining to property not in Kentucky, and earnings derived from property not in Kentucky; that to do this would be in violation of . . . the Constitution of the United States, particularly the Fourteenth Amendment thereof.” In its first decision (193 Ky. 474), the Court of Appeals said (p. 488): “It is our conclusion, therefore, that the court should have assessed against defendant [Southern Railway Company of Virginia] Kentucky’s portion of the intangible property assessed by the proportion of the mileage that the lines nominally operated by the 1 Southern Railway Company in Kentucky ’ bear to the entire mileage of defendant’s system estimated according to the method provided by the statute. But it is insisted that this would result in taxing in Kentucky property having no situs here. . . Then follows the court’s answer to that contention. This shows that the court distinctly recognized and passed upon the contention that the imposition of the additional franchise taxes would be to tax property outside Kentucky. That decision, according to the local rule, not only bound the lower court, but controlled the disposition of the case on the second appeal. Hopkins v. Adam Roth Grocery Co., 105 Ky. 357, 358. The objec- 86 OCTOBER TERM, 1926. Brandéis, J., dissenting. 274 U. S. tions were reiterated in an amended answer filed after the first decision. And the Court of Appeals in its second decision declared that the additional assessments “ were made in accordance with and are concluded by the former opinion herein.” Clearly, the objections made in the state courts were sufficient. They went to the point that, as proposed to be applied and enforced, the state statutes would operate to tax property outside and beyond the jurisdiction of Kentucky in contravention of the Fourteenth Amendment. And, notwithstanding these objections, the Court of Appeals in its first decision directed the making of these additional assessments; and, in its second decision, declared that they had been made as directed and affirmed the judgment of the Circuit Court by which they were determined. A petition for certiorari was filed, but, as the case is properly here on writ of error, the petition will be denied. Judgment reversed on writ of error. Petition for certiorari denied. Mr. Justice Brandéis, dissenting. I do not consider the merits of this case, because, in my opinion, it should be affirmed on a point of practice which was urged here by the Commonwealth. On writ of error to a state court, even where, as here, this Court has jurisdiction, no objection is reviewable which was not made there. The question on which the judgment of the Court of Appeals of Kentucky is reversed was not raised or passed upon below. The claim made below was that the Southern could not be taxed at all in Kentucky under the unit rule and that, therefore, the statute as applied was void. Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282, 288-290. The Commonwealth admitted that the Southern, a Virginia corporation, did not own the Kentucky lines di- SOUTHERN RY. CO. v. KENTUCKY. 87 76 Brandeis, J., dissenting. rectly. The Southern admitted that it controlled them by stock ownership. In support of the claim that the unit rule could not be applied, the Southern made two contentions. The first was dealt with by the Court of -Appeals in its first opinion, 193 Ky. 474; the second, in its second opinion, 204 Ky. 388. The first contention was that the unit rule could have no .application, because the Southern was not doing business in Kentucky. That contention the Court of Appeals decided against the Southern for all the years; and this Court affirms the ruling. The second contention was that the unit rule did not apply, because there was not unity of use and operation of the Kentucky lines with its fines elsewhere. The question depended upon the .amount of control exercised by the Southern Railway Company over the C., N. 0. & T. P. Railway, which connected the Southern Railway in Kentucky with the rest of the Southern system. This contention the Court of Appeals decided in favor of the Southern for the years 1914, 1915 and 1916; but against it for the years 1917 and 1918. With this ruling also this Court agrees. The reversal by this Court is based on an entirely different claim. It is on the ground that the method of assessment used was such as to furnish, as a basis for the franchise tax, an amount so unreasonable and arbitrary as to involve taxation of property outside the State, in view (1) of the fact that the per mile earnings of the entire system were so much larger than the per mile earnings of the Southern in Kentucky, and (2) of the supposed use of too large a percentage intended to represent the proportion of the mileage in Kentucky to the total mileage of the system. The Court of Appeals recognized clearly that it could not tax in Kentucky any property outside its limits. It upheld the tax as an increase of assessment upon property located confessedly in Kentucky, applying the rule of Pullman Co. v. Richardson, 261 U. S..330, 338, that “if 88 OCTOBER TERM, 1926. Brandéis, J., dissenting. 274 U. S. the property be part of a system and have an augmented value by reason of a connected operation of the whole, it may be taxed according to its value as part of the system, although the other parts be outside the State;—in other words, the tax may be made to cover the enhanced value which comes to the property in the State through its organic relation to the system.” Applying the unit rule, however, there are two grounds on which a decision sustaining the claim that property outside the State has been taxed might have rested, if the appropriate claim had been made below. It might have been held that the statute, so far as it required the adoption of the mileage plan of valuation, was void as applied, because the different character of the lines outside Kentucky precluded the application of the per mile method as a basis of valuation. Compare Fargo v. Hart, 193 U. S. 490; Wallace v. Hines, 253 U. S. 66, 69. Or it might have been held that the tax was void, because the additional assessment based on mileage without the State was so arbitrary and unreasonable in amount as to violate due process. Compare Union Tank Line Co. v. Wright, 249 U. S. 275; Wallace v. Hines, 253 U. S. 66, 69-70. But neither of these claims was made in the court below. The only contentions made there were those which this Court and the lower court agree in holding unfounded— namely, that the Southern was not doing business in Kentucky and that there was no such unity of use and operation of the lines within and those without the State as to permit of the application of the unit rule.1 1 The reason urged by the Southern in support of the second contention was, as the second opinion recites, that the Kentucky lines “ had neither physical nor operative connection with lines outside of the state . . . and that to apply the notion of organic unity to ah its lines under such circumstances is violative of the Fourteenth Amendment of the Constitution of the United States, in that it brings into Kentucky for taxation purposes values wholly outside of the SOUTHERN RY. CO. v. KENTUCKY. 89 76 Brandéis, J., dissenting. The second opinion of the Kentucky Court of Appeals recites that “it is admitted that the assessments for 1917 and 1918 were made in accordance with and are concluded by our former opinion,” Hence it was necessary for the plaintiff in error to show that the objections insisted upon in this Court were raised upon the first trial or the appeal in the state court.* 2 A consideration state. Whether or not this is true is the sole question presented for decision upon these appeals.” The Court of Appeals decided the second contention in favor of the Southern for the years 1914, 1915 and 1916, because it concluded “ that there was in fact no physical connection between the Northern branch and the Southern branch of the defendant’s lines, and that despite the defendant’s ownership and control of both of these separate branches, they cannot, under the many decisions of the Supreme Court of the United States, be considered as parts of a single system for the purpose of ascertaining the value of defendant’s franchise employed in Kentucky without violating the Fourteenth Amendment of the federal Constitution.” It held the Southern taxable for the years 1917 and 1918 because in 1917 the “ defendant acquired the C. N. O. & T. P. Ry. Co., and thus unified all of its holdings into a single unit of use and management.” In considering the situation for the earlier years it stated: "The question for decision then finally narrows to whether for the purpose of valuing defendant’s franchise employed in Kentucky, the line from Danville, Kentucky, to St. Louis, Mo., is to be considered as a separate unit or as a part of a system including also defendant’s eastern and southern lines.” 2 As showing that they were raised, this Court relies upon the allegation of the answer that " the effort made herein is simply for the purpose of endeavoring to bring into the State of Kentucky for purposes of taxation, property not in Kentucky; . . . that to do this would be in violation of . . . the Fourteenth Amendment,” and upon a quotation from the first opinion of the Kentucky Court of Appeals to the effect that “ it is insisted that this would result in taxing in Kentucky property having no situs here. . . .” The reliance of this Court appears to rest upon a misapprehension. On the first trial, the lower courts dismissed the State’s petition. As no method of assessment was before the Court of Appeals, it could not, in its first opinion, have passed upon the arbitrariness of this or any other method of assessment. See 193 Ky. 474, 489. 90 OCTOBER TERM, 1926. Brandéis, J., dissenting. 274 U. S. of the entire answer and of the entire first opinion make it altogether clear that the contention, which was advanced by the answer and refuted by the opinion, consisted solely of the claim that any assessment against the Southern would be unconstitutional as taxing property outside the State because the Southern was not doing business within the State. Neither the record nor the opinion of the Court of Appeals discloses that there was an objection to the assessment as such. Nowhere in the opinion is there any reference to the figures urged here as showing the arbitrariness of the statute as applied. It cannot be said “ that the necessary effect in law of a judgment, which is silent upon the question, is the denial of a claim or right which might have been involved therein, but which in fact was never in any way set up or spoken of.” Dewey v. Des Moines, 173 U. S. 193, 200. The rule that a claim or right which was not asserted in the state court cannot be deemed to have been denied, and hence cannot be insisted upon in this Court has been long established.3 It is true also that the party defeated upon a federal question in a state court will not be limited in this Court to the same argument upon that question, Dewey v. Des Moines, supra, at p. 198; and that, if the federal question is properly raised, it is immaterial that the state court may have refused to discuss the point. Erie R. R. Co. v. Purdy, 185 U. S. 148, 154. But 3 In 1836 Mr. Justice Story, because of the fact “ that a different impression exists at the bar,” reviewed all the cases that had reached this Court from the state courts, finding that they exhibited “ an uniformity of interpretation . . . which has never been broken in upon,” requiring that, in order to give the Court jurisdiction, the question sought to be reviewed had both to be raised in the court below and there decided. Crowell v. Rand ell, 10 Pet. 368, 392, 398. By 1894 Chief Justice Fuller regarded such principles as “ axiomatic.” California Powder Works n. Davis, 151 U. S. 389, 393. The rule is still inflexible. New York v. Kleiner t, 268 U. S. 646. McDonald v. maxwell. 91 76 Syllabus. if the contention made below differs from the contention made here to such a degree that the decision upon one would not necessarily conclude the other, the raising of one below will not permit the raising of the other here, even if the same provision of the Constitution be the basis of both claims. Compare Dewey v. Des Moines, supra; Marvin v. Trout, 199 U. S. 212, 223-224, 227. The importance of the rule of practice is illustrated by the case at bar.4 Because the reasonableness of the method of assessment was not questioned below, there is nothing in the record to show what figures and what method of calculation were used by the taxing officers. The figures adopted by this Court are presented only in the brief of the plaintiff in error. They are protested by counsel for the Commonwealth. Moreover, there is reason to believe that the inferences drawn from them are unsound. McDonald et al. v. maxwell et al., EXECUTORS. CERTIORARI TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. No. 147. Argued January 20, 1927.—Decided April 11, 1927. 1. A decision of the Supreme Court of the District of Columbia, in Probate, allowing a commission to executors in the approval of their yearly account, is reviewable by appeal without bill of exceptions, where an issue of law only was involved, raised by exceptions of the beneficiaries to the account. P. 95. 4 Compare Hamilton Co. v. Massachusetts, 6 Wall. 632, 636; National Bank v. Commonwealth, 9 Wall. 353, 363; Edwards n. Elliott, 21 Wall. 532, 557; Wilson v. McNamee, 102 U. S. 572; Keokuk &. Hamilton Bridge Co. n. Illinois, 175 U. S. 626, 633; Bolin v. Nebraska, 176 U. S. 83, 90; Chapin v. Fye, 179 U. S. 127; Capital City Dairy Co. v. Ohio, 183 U. S. 238, 248; Cox v. Texas, 202 U. S. 446, 452; Montana v. Rice, 204 U. S. 291, 301; Hunter v. Pittsburgh, 207 U. S. 161, 180; Selover, Bates & Co. v. Walsh, 226 U. S. 112; Illinois Cen- 92 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. 2. Stock dividends on corporate shares in a decedent’s estate in process of administration, do not in themselves represent an increase of value upon which the executor is entitled to have a commission. Gibbons v. Mahon, 136 U. S. 549. P. 96. 3. Judgment entered nunc pro tunc, as of the day on which the cause was argued and submitted, in view of the death of one of the respondents since occurring. P. 99. 6 F. (2d) 678, reversed. Certiorari (269 U. S. 542) to a judgment of the Court of Appeals of the District of Columbia which affirmed a judgment allowing commissions to the respondent executors, over exceptions exhibited on behalf of the beneficiaries. Mr. Charles V. Imlay, with whom Mr. Charles E. Wainwright was on the brief, for petitioners. Mr. Frederic D. McKenney, with whom Messrs. John S. Flannery, G. Bowdoin Craighdl, Joseph 8. Gray don, and Edward DeWitt were on the brief, for respondents. Mr. Justice Sanford delivered the opinion of the Court. In the course of a proceeding that had been pending for many years in the Supreme Court of the District of Columbia, sitting as a Probate Court, for the administration of the estate of James McDonald, deceased, under his last will and testament, the executors were allowed certain commissions for the one year period covered by their ninth account. On an appeal by the beneficiaries under the will, two of whom are minors represented by a guardian ad litem, the District Court of Appeals, being of opinion that there was “nothing on the face of the record to indicate error,” affirmed the judgment allowing tral R. R. Co. v. Mulberry Coal Co., 238 U. 8 275, 281; Bullen v. Wisconsin, 240 U. S. 625, 632; Hiawassee River P. Co. v. Power Co., 252 U. S. 341. Compare Virginian Ry. Co. v. Mullens, 271 U. 8. 220. McDonald v. maxwell. 93 91 Opinion of the Court. these commissions. 6 F. (2d) 678. And this writ of certiorari was thereupon granted. 269 U. S. 542. A motion by the executors to dismiss the writ and affirm the judgment, on the ground, in effect, that the record presents no substanial question for review, was postponed to the hearing; and the case has been heard on this motion and on the merits. The record—aside from formal and undisputed matters—consists of the account filed by the executors, a report and exception by the guardian ad litem, an exception by the adult beneficiary, and the order of the court allowing the commissions. From these it appears that the executors, in August, 1923, filed their ninth account, covering the period from July 11, 1922 to July 12, 1923— hereinafter referred to as the accounting period. In this account they stated, under the heading of “ Receipts Principal Account,” that, in addition to the balance of principal in their hands on July 11, 1922, shown by their eighth account, they had' charged themselves with the profits received during the accounting period from the sales of certain inventoried items, aggregating $1,604.32, and with certain shares of stock which they had received during the accounting period as stock dividends, “ at the face or par value thereof,” aggregating $1,570,325, making a total of $1,571,929.32; and that they “ claim and hereby retain for their services a commission of five per cent, upon profits realized on proceeds of inventoried items, and the par or face value of stocks received as dividend, viz, $1,571,929.32 ..... 78,596.47.” They further stated, under the heading “ Income Account,” that, in addition to the balance of income shown by their eighth account, they had charged themselves with income received during the accounting period on the property owned by the estate, aggregating $247,814.39; and that they " also claim and hereby retain for their services a commission of five (5) per cent, upon the 94 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. annual income and profits on income investments received .... 12,390.72.” The guardian ad litem, pursuant to a former order of the court, filed a report concerning the matters involved in this account) in which—after pointing out that the executors on their previous accounts had been allowed commissions of more than $200,000 upon the principal of the estate and $50,000 upon the income—he insisted that the sum of $12,390.72, claimed as commission on the income received, was a sufficient compensation for their services during the accounting period; and that as to the additional commission of $78,596.47 claimed on an “ increase in principal ” of $1,571,929.32, the stock dividends of $1,570,325, of which this mainly consisted, were “ not a proper basis upon which to charge a commission.” And he specifically “ except (ed) to the requested allowance of $78,596.47 for commission on principal.” The adult beneficiary also filed an exception to the account upon the ground that “ the commissions claimed, in large part, are based upon an alleged increase in the capital assets of said estate . . . consisting in the issuance to said estate, as the holder of stock in a large number of corporations, of stock dividends, when as a matter of law and of fact, the issuance of said stock dividends added nothing to the interest of said estate as a share holder in said corporations, but merely changed the evidence of said interest, in the shape of stock certificates,” and “ the issuance of stock dividends to said estate cannot be considered as an increase of either capital or income.” Thereafter, the court, without handing down an opinion, entered an order reciting that the ninth account of the executors “being now presented for approval, the same is, after examination by the Court, approved and passed, the executors being allowed $12,390.72 commission on income, as claimed, but being hereby allowed McDonald v. maxwell. 95 91 Opinion of the Court. $50,000.00 commission, on increase in principal instead of $78,596.47 claimed.” It thus is apparent that the court allowed the commission of $50,000 “ upon profits realized on proceeds of inventoried items, and the par or face value of stocks received as dividend, viz, $1,571,929.32,” for which the executors had claimed a commission of $78,596.47, on the ground that these profits and the par or face value of the stock dividends constituted an “ increase in principal ” upon which a commission could be allowed. The beneficiaries do not challenge here so much of this allowance as was based on the $1,604.32 of profits realized from inventoried items, on which the executors claimed a commission of 5 per cent., or $80.22. And the sole question presented is whether the remainder of the $50,000 allowed as a “ commission on increase in principal,” that is, at least $49,019.78, which was based solely on the $1,570,325 of stock dividends, was properly allowed. The Court of Appeals—after stating that the orders in a proceeding in the District Probate Court are reviewable only in accordance with the practice at common law by which the evidence must be brought up in a bill of exceptions, and that the record did not contain any bill of exceptions or purport to show the substance of the testimony—said: “ The court below, evidently after a hearing in which all pertinent facts and circumstances were considered, reached the conclusion that the executors were entitled to $50,000 commission on increase in principal, and made that allowance. The facts and circumstances upon which this allowance was based are not before us, and, there being nothing on the face of the record to indicate error, it is apparent that the judgment must be affirmed. . . .” We think this was error. This proceeding is not like one for the probate of a will involving an issue as to the competency of the testator, in 96 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. which the parties have a right to a trial by jury and to bills of exception covering the rulings of the court during the progress of the trial, and a review may be had upon writ of error, Ormsby v. Webb, 134 U. S. 47, 64, but one in which the District Supreme Court, sitting in probate, is clothed, as an orphans’ court, with power to proceed with the settlement and distribution of the estate in accordance with equitable principles and procedure, and a controversy in matter of law raised by the exceptions of the beneficiaries to the executors’ account, and apparent on the record, is reviewable on appeal. Kenaday v. Sinnott, 179 U. S. 606, 614. Here the exceptions raised no issue as to the matters of fact stated in the executors’ account, but a question of law merely. There is no recital in the record that the order was based upon any evidence submitted; no reference to the hearing of any evidence; and nothing, we think, from which any inference can be rightly drawn that the court made an investigation of any matters not shown by the executors’ account, or allowed the commission on the stock dividends on any ground other than that as matter of law the receipt of the stock dividends constituted an “ increase in principal ” of the estate. And as to this we think the ruling was erroneous. There was, it is to be noted, no statement in the executors’ account that the aggregate value of the dividend shares received and the original shares on hand at the commencement of the accounting period, was any greater than the value of the original shares alone before the dividend shares were issued, or that the value of the principal of the estate had increased in any manner during the accounting period. They made no claim for the allowance of an additional commission on the ground that there had been such an increase; their sole claim being, as shown by their account, that they were entitled McDonald v. maxwell. 97 91 Opinion of the Court. to the additional commission by reason of the fact that they had received stock dividends of the par value stated. And, for aught that appeared from their account, the combined value of the original shares and the dividend shares was precisely the same at the end of the accounting period as the value of the original shares alone at its commencement. Assuming, but not deciding, that if the executors’ account had shown an increase in the value of the principal of the estate during the accounting period, this, if claimed, would have been a proper basis for the allowance of an additional commission, it is clear that the mere fact that the executors had received the stock dividends during the accounting period did not show any increase in the principal of the estate. In Gibbons v. Mahon, 136 U. S. 549, 559, 565, in determining whether a stock dividend accrued to the tenant for life under a trust estate, this Court said: “A stock dividend really takes nothing from the property of the corporation, and adds nothing to the interests of the shareholders. Its property is not diminished, and their interests are not increased. After such a dividend, as before, the corporation has the title in all the corporate property; the aggregate interests therein of all the shareholders are represented by the whole number of shares; and the proportional interest of each shareholder remains the same. The only change is in the evidence which represents that interest, the new shares and the original shares together representing the same proportional interest that the original shares represented before the issue of new ones.” And the Court quoted with approval the statement in Williams v. Western Union Telegraph Co., 93 N. Y. 162, 189, that: “After such a dividend the aggregate of the stockholders own no more interest in the corporation than before. The whole number of shares 5'5514 °—28-7 98 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. before the stock dividend represented the whole property of the corporation, and after the dividend they represent that and no more. A stock dividend does not distribute property, but simply dilutes the shares as they existed before.” So in Eisner v. Macomber, 252 U. S. 189, 211, in which it was held that stock dividends were not taxable as income, the Court said: “ The essential and controlling fact is that the stockholder has received nothing out of the company’s assets for his separate use and benefit; on the contrary, every dollar of his original investment, together with whatever accretions and accumulations have resulted from employment of his money and that of the other stockholders in the business of the company, still remains the property of the company, and subject to business risks which may result in wiping out the entire investment. Having regard to the very truth of the matter, to substance and not to form, he has received nothing that answers the definition of income within the meaning of the Sixteenth Amendment.” It is apparent, in the light of these decisions, that the stock dividends received by the executors represented no real increase in the principal of the estate during the accounting period. They merely changed the form of the estate’s investment in the corporate stocks by increasing the number of its shares, but left the aggregate value of all its shares the same as that before the dividend shares were issued. After their issuance, which necessarily “ diluted ” the value of the original shares, the dividend shares and the original shares together represented the same proportional interest in the corporate properties that had previously been represented by the original shares alone; no more, and no less. Clearly, therefore, the dividend shares themselves represented no increase in the value of the estate; and they could not properly be taken as the basis for the allowance of a commission to the AMERICAN NATIONAL CO. v. U. S. 99 91 Statement of the Case. executors on the theory that their receipt, in and of itself, constituted an increase in its capital. The executors’ motion to dismiss and affirm must accordingly be denied; and the judgment reversed. But, the Court being advised that the respondent Maxwell, one of the executors, has died since January 20, 1927, the day on which this case was argued and submitted, the judgment here will be entered nunc pro tunc as of that day. Quon Quon Poy v. Johnson, 273 U. S. 352, and cases cited. Judgment reversed, nunc pro tunc. AMERICAN NATIONAL COMPANY, RECEIVER, v. UNITED STATES. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF OKLAHOMA. No. 167. Argued February 25, 1927.—Decided April 11, 1927. A corporation, in the business of making and selling loans on five year notes and mortgages, derived its income from commissions in the form of two year notes made by the borrowers; and, in selling loan notes to investors, agreed, as an inducement, to pay them bonuses of a specified per cent, yearly of the loans sold, during the life thereof. Held that, under § 13(d) of the Revenue Act of 1916, and regulations of the Treasury pursuant thereto, a method of accounting which accrued the aggregate of the commission notes received during a tax year as income thereof, though not then due and payable, and which similarly accrued the aggregate of bonus contracts made during the year as expenses thereof, correctly reflected the income, and that such aggregate of bonus contracts was properly deducted from the gross of the commissions in ascertaining taxable income. United States v. Anderson, 269 U. S. 422. P. 103. Reversed. Appeal from a judgment of the District Court in favor of the United States, in a suit under the Claims Act (Jud. 100 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. Code § 24, par. 20) to recover an amount paid under protest as an income and excess profits tax. Mr. Charles H. Garnett, with whom Mr. Streeter B. Flynn was on the brief, for appellant. Mr. Alfred A. Wheat, Special Assistant to the Attorney General, with whom Solicitor General Mitchell was on the brief, for the United States. Mr. Justice Sanford delivered the opinion of the Court. The receiver of the F. B. Collins Investment Company—proceeding under § 24, par. 20, of the Judicial Code,1—brought this suit against the United States to recover an additional income and excess profits tax of $4,287.64 that had been assessed against the Company for the year 1917, under the Revenue Act of 1916,1 2 and the War Revenue Act of 1917,3 and paid by it under protest. The District Court, sitting as a Court of Claims, on its findings of fact, entered judgment in favor of the United States, before the effective date of the Jurisdictional Act of 1925. And this direct appeal was allowed. J. Homer Fritch, Inc. v. United States, 248 U. S. 458. The question here presented is whether, under the provisions of the Revenue Act of 1916, the Company in computing its taxable net income for 1917, was entitled to deduct from its gross income the amount of certain obligations for the payment of money which it claimed were “ expenses ” incurred in the operation of its business within that year. The Revenue Act of 1916 provided, in §§ 12(a) and 13(a), that the net income of a corporation should be ascertained by deducting from its gross income received 1U. S. C., Tit. 28, § 41(20). 2 39 Stat. 756, c. 463. 8 40 Stat. 300, c. 63. AMERICAN NATIONAL CO. v. U. S. 101 99 Opinion of the Court. within the year, first, the “ ordinary and necessary expenses paid within the year in the maintenance and operation of its business”; and, in § 13(d), that a corporation “ keeping accounts upon any basis other than that of actual receipts and disbursements, unless such other basis does not clearly reflect its income, may, subject to regulations made by the Commissioner of Internal Revenue, . . . make its return upon the basis upon which its accounts are kept, in which case the tax shall be computed upon its income as so returned.” In Treasury Decision 2433,4 issued in January, 1917, dealing with the latter provision, the Commissioner ruled that: “Under this provision it will be permissible for corporations which accrue on their books monthly or at other stated periods amounts sufficient to meet fixed annual or other charges to deduct from their gross income the amounts so accrued, provided such accruals approximate as nearly as possible the actual liabilities for which the accruals are made, and provided that in cases wherein deductions are made on the accrual basis as hereinbefore indicated income from fixed and determinable sources accruing to the corporations must be returned, for the purpose of the tax, on the same basis. . . . This ruling contemplates that the income and authorized deductions shall be computed and accounted for on the same basis and that the same practice shall be consistently followed year after year.” The findings of fact show that the Company, an Oklahoma corporation, had been engaged since 1908 in the business of making loans secured by mortgages upon real estate, which it negotiated and sold to investors. Under its usual course of business the borrower, upon the making of a loan, executed to the order of the Company his note for the amount loaned, due in five years, with interest at five per cent, per annum, payable semiannually; with the privilege of paying $100 or any multiple thereof on 4Treas. Dec., Int. Rev., 1917, p. 5. 102 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. the principal, on or after two years, at the maturity of any interest payment. At the same time the borrower executed to the Company another note due in two years, without interest, for ten per cent, of the total amount of the loan, as the Company’s commission or compensation for making and negotiating the loan. From these commission notes the Company derived its income. At first the Company negotiated and sold the loan notes to investors entirely through brokers or agents, to whom it paid fees or commissions. But from and after 1916 it sold many of these notes direct to investors; and being thus relieved from payment of these fees or commissions, and as an inducement to investors to purchase from it direct, agreed to pay them bonuses upon the notes as added consideration for the purchases; this being evidenced by a contract, styled a Guarantee, which the Company gave the investor, agreeing to pay him during the life of the loan, according to the terms of the note, one per cent, per annum of its amount, in addition to the five per cent, per annum that the borrower was to pay. The Company consistently kept its books of account from year to year on an “ accrual basis.” Under the practice followed from the inception of its bonus method of doing business, whenever a loan note was sold it charged on its books, as an expense incurred in the sale, the aggregate amount of the payments called for in the bonus contract, computed at one per cent, per annum to the maturity of the note, and credited the investor on its books with a like amount, in a subsidiary bills payable ledger. The total amount of this liability on the bonus contracts was carried on its general ledger under a control account called the Guarantee Fund Account. In the year 1917, in accordance with this practice, the Company accrued and set up on its books as a liability and charged to expense, the aggregate amount of the payments called for in the bonus contracts given investors during AMERICAN NATIONAL CO. v. U. S. 103 99 Opinion of the Court. that year. And it made its tax return for that year upon the basis upon which the accounts were kept, claiming as an expense the aggregate amount of these bonus contracts, as set up on its books. And, as admitted in argument, although not shown specifically by the findings of fact, it also entered on its books and returned as income received during the year, the aggregate amount of the commission notes given by the borrowers when it made the loans. Furthermore, under the Company’s practice, if any loan note was paid by the borrower before maturity, the difference between the amount of the bonus contract credited to the investor’s account and the payments that had been made on the contract, was credited back to Profit and Loss, and treated as income of the Company for the year in which the note was paid. The Commissioner of Internal Revenue disallowed the claim of the Company for the deduction of the total amount of the bonus contracts issued in 1917, and allowed the deduction only to the extent of the installments called for by such contracts which matured in 1917; and in accordance with this ruling made the additional assessment which is here involved. And the sole question here is whether the Company was entitled to deduct the entire amount of the bonus contracts, as it claimed, or merely such portion thereof as became due within the year, as ruled by the Commissioner. The Government, although conceding that the bonus contracts “represented an expense” of the Company’s business, contends that their total amount was not deductible as an expense “ incurred ” in 1917, on the grounds that only a part of the obligations “ accrued ” within that year, and that the method used by the Company in keeping its books did not clearly reflect its true income. We cannot sustain this contention. In United States v. Anderson, 269 U. S. 422, 437, we held that where a corporation kept its books on an ac- 104 OCTOBER TERM, 1926. Opinion of the Court 274 U.S. crual basis, the amount of a reserve entered thereon for taxes imposed by the United States on the profits of munitions made and sold during the taxable year, should be deducted from its gross income for that year, although they were not assessed and did not become due until the following year. The Court said: “ While § 12(a) taken by itself would appear to require the income tax return to be made on the basis of actual receipts and disbursements, it is to be read with § 13(d) . . . providing in substance that a corporation keeping its books on a basis other than receipts and disbursements, may make its return on that basis provided it is one which reflects income. . . . Treasury Decision 2433 . . . recognized the right of the corporation to deduct all accruals . . . made on its books to meet liabilities, provided the return included income accrued and, as made, reflected true net income. ... A consideration of the difficulties involved in the preparation of an income account on a strict basis of receipts and disbursements . . . indicates with no uncertainty the purpose of §§ 12(a) and 13(d) . . . to enable taxpayers to keep their books and make their returns according to scientific accounting principles, by charging against income earned during the taxable period, the expenses incurred and properly attributable to the process of earning income during that period; and indeed, to require the tax return to be made on that basis, if the taxpayer failed or was unable to make the return on a strict receipts and disbursements basis. . . . The [corporation’s] true income could not have been determined without deducting from its gross income during the year the total costs and expenses attributable to the production of that income during the year. ... In the economic and bookkeeping sense with which the statute and Treasury decision were concerned, the [munitions] taxes had accrued. It should be noted that § 13(d) makes no use of the words 1 accrue ’ or 1 accrual ’ but merely provides for AMERICAN NATIONAL CO. v. U. S. 105 Opinion of the Court. 99 a return upon the basis upon which the taxpayer’s accounts are kept, if it reflects income. . . . We do not think that the Treasury decision contemplated a return on any other basis when it used the terms 1 accrued ’ and 1 accrual ’ and provided for the deduction by the taxpayer of items (accrued on their books.’ ” So, in the present case, we think that the amount of the bonus contracts was “ an expense incurred and properly attributable” to the Company’s process of earning income during the year 1917. These contracts were not analogous to obligations to pay interest on money borrowed, but were expenses incurred in selling the loan notes in as real a sense as if under its original system of doing business the Company had paid these amounts to brokers as fees for selling the loans or given them notes for such fees. The Company’s net income for the year could not have been rightly determined without deducting from the gross income represented by the commission notes, the obligations which it incurred under the bonus contracts, and would not have been accurately shown by keeping its books or making its return on the basis of actual receipts and disbursements. The method which it adopted clearly reflected the true income. And, just as the aggregate amount of the commission notes was properly included in its gross income for the year— although not due and payable until the expiration of two years—so, under the doctrine of the Anderson case, the total amount of the bonus contracts was deductible as an expense incurred within the year, although it did not “ accrue ” in that year, in the sense of becoming then due and payable. We conclude that the assessment of the additional tax, having been based upon an erroneous disallowance of the deduction claimed by the Company, was invalid; and that the receiver was entitled to recover the amount paid, with interest. The decree of the District Court is accordingly Reversed. 106 OCTOBER TERM, 1926. Statement of the Case. 274 U. S. UNITED STATES ex rel. NORWEGIAN NITROGEN PRODUCTS COMPANY, INC. v. UNITED STATES TARIFF COMMISSION. ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. No. 91. Argued March 3, 4, 1927.—Decided April 11, 1927. 1. Under Jud. Code § 250, before the Act of February 13, 1925, a judgment of the Court of Appeals of the District of Columbia, affirming dismissal of a petition for mandamus in which the construction of a federal law was drawn in question, was reviewable here by writ of error. P. 110. 2. No duty of the Tariff Commission to make an investigation of comparative costs of production here and abroad arises under the Revenue Act of September 8, 1916, or the Tariff Act of 1922, except when required by the President under § 315 of the latter. P. 110. 3. An action in mandamus to compel the Commission to reopen an investigation of differences in cost of production, which it conducted under an Executive Order as an aid to the President in adjusting tariff duties under § 315 of the Tariff Act of 1922, and to disclose to the petitioner information obtained at a prior hearing and allow him to cross-examine witnesses and introduce evidence, became moot when the President fixed the duties, on the Commission’s report. P. 110. 4. In the absence of an injunction or restraining order, an administrative body, after judgment in its favor in an action to control its conduct by mandamus, may proceed to dispose of the matter before it notwithstanding the pendency of a writ of error to the judgment. P. 111. 5. A case becoming moot pending review should be remanded with directions to dismiss. P. 112. 6 F. (2d) 491, reversed. Error to a judgment of the Court of Appeals of the District of Columbia which affirmed a judgment of the Supreme Court of the District dismissing on demurrer a petition for a mandamus to require the Tariff Commission to disclose information obtained by it in an investigation NORWEGIAN CO. v. TARIFF COMM. 107 106 Opinion of the Court. of costs of production of sodium nitrite and to hold a public hearing, with leave to the plaintiff to cross-examine investigators and witnesses and offer opposing evidence. Messrs. George R. Davis and Marion DeVries for plaintiff in error. Solicitor General Mitchell, with whom Mr. Robert P. Reeder, Special Assistant to the Attorney General, was on the brief, for defendant in error. Mr. Justice Stone delivered the opinion of the Court. The Tariff Act of September 21, 1922, c. 356, § 315, 42 Stat. 858, 941, vested in the President the power to adjust tariff duties so as to equalize differences in costs of production here and abroad of articles wholly or in part the growth or product of this country, whenever an investigation by the Tariff Commission should reveal disparate costs. Such investigation is made a prerequisite to action by the President in proclaiming changes of rates. By Executive Order of October 7, 1922, it was provided that all petitions or applications for action or relief under the so-called flexible sections of the Tariff Act of 1922 should be filed with the Tariff Commission. In October, 1922, the American Nitrogen Products Company, a corporation of the State of Washington, filed with the United States Tariff Commission a petition praying for a fifty per cent, increase in the duty imposed by the Tariff Act of 1922 upon imported sodium nitrite. The following March, the Tariff Commission, for the purpose of assisting the President in the exercise of the powers delegated to him by the Act of 1922, ordered an investigation of the differences in cost of production of sodium nitrite at home and abroad, and of other pertinent facts and conditions. It was further ordered that all parties interested should be given an opportunity to be 108 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. present and produce evidence at a public hearing to be held at a date to be fixed later. Plaintiff in error is engaged in the importation of nitrogen products into the United States which it sells on commission. It represents in the United States, as exclusive agent, the Norwegian Hydro-Electric Nitrogen Corporation, the only manufacturer of sodium nitrite in Norway. Representatives of the Commission, in the course of its investigation, proceeded to Norway and Germany and sought from the Norwegian company and from German manufacturers data showing the cost of production of sodium nitrite in those countries. This was refused. The Commission’s experts were permitted to examine the books and records of American manufacturers, obtaining information of the domestic cost of production and other relevant data. This information was given under promise that it would be treated as confidential and upon the assurance that the rules of the Commission and § 708 of the Revenue Act of September 8, 1916, c. 463, 39 Stat. 756, 798, so required. Section 708 prohibits the Commission from revealing “ the trade secrets or processes ” of which it might learn in the course of its investigations. After making its investigation, the Commission ordered a public hearing to be held on September 10, 1926. Its rules provided that : “ Parties who have entered appearances shall prior to the filing of briefs, have opportunity to examine the report of the commissioner or investigator in charge of the investigation and also the record except such portions as relate to trade secrets and processes.” At the hearing, plaintiff appeared by counsel and demanded a complete copy of the application of the American Nitrogen Products Company, and attempted to cross examine its president as to its cost of production. In making these and other similar demands in the course of the hearings, plaintiff relied on the provisions of § 315(c). of the Act of 1922, reading in part : 11 The commission .NORWEGIAN CO. v. TARIFF COMM. 109 106 Opinion of the Court. shall give reasonable public notice of its hearings and shall give reasonable opportunity to parties interested to be present, to produce evidence, and to be heard. The commission is authorized to adopt such reasonable procedure, rules, and regulations as it may deem necessary.” The Commission, holding that its action was controlled by § 708 of the Revenue Act of 1916, prohibiting it from divulging trade secrets or processes of which it acquired information in the course of investigation, excluded the questions asked and disclosed only a copy of the application of the American company, from which a statement of its costs of production had been deleted. On September 15, 1923, the Commission made a preliminary report stating the results of its inquiry. The report contained a review of the data in the possession of the Commission, including an estimate of the cost of production in Norway, based upon such public sources in Norway as were available to it, both the Norwegian company and the plaintiff having refused to give any information on the subject. But, following its settled policy, it withheld all material which would reveal the individual production costs of American manufacturers. Its practice is to publish the average domestic cost, but this was withheld here because the average cost was deemed informative of individual costs in view of the small number of American manufacturers. Hearings were resumed on September 26, at which plaintiff was given an opportunity to offer evidence, to make oral argument and to file briefs. Requests by plaintiff to cross examine the Commission’s field examiners and experts and to inspect data gathered by them were refused. Plaintiff then filed with the Supreme Court of the District of Columbia a petition for mandamus, directing the Tariff Commission to disclose the information which it had obtained concerning the cost of production of sodium nitrite by American and foreign manufacturers, and 110 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. directing the commissioners to hold a public hearing at which plaintiff should be given an opportunity to cross examine the investigators and experts of the Commission, and witnesses with respect to such data, to offer evidence in opposition, and to present arguments against the American company’s petition. The Commission interposed an answer setting up that § 708 of the Revenue Act forbade the Tariff Commission from disclosing the information sought. To this answer the plaintiff demurred. The demurrer was overruled and final judgment was entered dismissing the petition. Pending review by the Court of Appeals of the District of Columbia, the Commission completed and submitted its report to the President. On May 6, 1924, the President made proclamation reciting the investigation of the Commission and fixing the duty at a rate found necessary to equalize the cost of production of sodium nitrite at home and abroad. The Court of Appeals affirmed the judgment, holding that the case had become moot by the action of the President in fixing the new rate of duty. Notwithsanding this determination, it reviewed the case at length and announced its conclusion on the merits. 6 Fed. (2d) 491. The case is properly here on writ of error under § 250 of the Judicial Code before the amendment of February 13, 1925, defendant in error having by its answer drawn in question the construction of § 708 of the Revenue Act. Santa Fe Pac. R. R.v. Work, 267 U. S. 511; Brady v. Work, 263 U. S. 435; Goldsmith v. Board of Tax Appeals, 270 U. S. 117. We conclude that the case had become moot before the review below and that it is unnecessary for us to indulge in a discussion of the merits. Under § 315 (c) and (e) of the Tariff Act of 1922, the President is given authority to require an investigation by the Commission and it is its duty to make one when so required. NORWEGIAN CO. v. TARIFF COMM. Ill 106 Opinion of the Court. There is no other provision of the Act placing any duty on the Commission to make such an investigation. When not so requested by the President, action by the Commission is discretionary. Under its rules, it is optional with it whether it will employ its resources for investigations sought by an interested party. Section 703 of the Revenue Act of September 8, 1916, under which the Commission was created, requires it to make certain specified studies of the administration and operation of the tariff laws of the United States and tariff relations of the United States with foreign countries, on request of the President and certain Committees of the two houses of Congress. That Act has no relevancy here since, unlike the Act of 1922, it contains no provisions for hearings in conjunction with the investigations there authorized. All relief sought here is incidental to the hearing before the Commission on the cost of production of sodium nitrite. The Commission conducted its inquiry and held these hearings to aid the President in determining whether the difference in cost of that product in this and in foreign countries should be equalized by revising the tariff under § 315(a) of the Act of 1922. The hearing pending when the plaintiff’s petition was filed has been concluded, as it lawfully might, since there was no injunction or restraining order and the Commission’s action was taken after the determination of the Supreme Court of the District in its favor. We need not consider here the effect upon judicial review of an attempt to evade or forestall a decision adverse to the Commission. The Commission has filed its report with the President and the President has made his decision and proclamation fixing the revised tariff. Either may revive the investigation but neither is under a duty to do so. Assuming that the plaintiff is entitled to a hearing of the character demanded whenever an investiga 112 OCTOBER TERM, 1926. Syllabus. 274 U. S. tion is had, which we do not decide, it would be an idle ceremony to require such a hearing upon an investigation which we may not command and which may never be made. In such circumstances there can be no effectual relief by mandamus and the Court of Appeals should have remanded the cause with directions to dismiss the petition as moot. Brownlow v. Schwartz, 261 U. S. 216; Mills v. Green, 159 U. S. 651, 653. The argument is made that the President was without jurisdiction to proclaim the new tariff rate because of alleged irregularities in the conduct of the hearing before the Commission which was a prerequisite to such action by the President. But petitioner does not attack the validity of the tariff proclaimed by the President; nor is this an appropriate proceeding in which to do so. Even if the change in tariff rates were deemed to be ineffectual, it would not follow that it is mandatory upon the President or the Commission to institute a new hearing. The judgments of the Court of Appeals and the Supreme Court of the District of Columbia are vacated and the cause remanded with directions to dismiss the petition as moot. So ordered. LOUIS PIZITZ DRY GOODS COMPANY, INC. v. YELDELL, ADMINISTRATOR. ERROR TO THE SUPREME COURT OF THE STATE OF ALABAMA. No. 171. Argued February 25, 28, 1927.—Decided April 11, 1927. A state law allowing punitive damages to be assessed in actions against employers for deaths caused by negligence of their employees—the object of the statute being to prevent negligent destruction of human life—does not violate the due process clause of the Fourteenth Amendment. P. 114. 213 Ala. 222, affirmed. PIZITZ CO. v. YELDELL. 113 112 Opinion of the Court. Error to the Supreme Court of Alabama, to review a judgment sustaining a recovery in an action for death by negligence. Mr. J. P. Mudd for plaintiff in error. Mr. Benjamin F. Ray, with whom Mr. Hugo L. Black was on the brief, for defendant in error. Mr. Justice Stone delivered the opinion of the Court. Defendant in error, an administrator, brought suit in the circuit court of Jefferson County, Alabama, to recover for the wrongful death of his intestate, caused by the negligent operation of an elevator by an employee of plaintiff in error in its department store. The action was founded upon the so-called Homicide Act of Alabama, § 5696, Code of 1923, printed in the margin.* This statute authorizes the recovery of damages from either a principal or an agent, in such amount as the jury may assess, for wrongful act or negligence causing death. The jury returned a verdict of $9,500 and judgment for that amount was affirmed on * “A personal representative may maintain an action, and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama and not elsewhere for the wrongful act, omission or negligence of any person or persons, or corporation, his or their servants, or agents, whereby the death of his testator or intestate was caused, if the testator or intestate could have maintained an action for such wrongful act, omission, or negligence, if it had not caused death. Such action shall not abate by the death of the defendant, but may be revived against his personal representative; and may be maintained, though there has not been prosecution, or conviction, or acquittal of the defendant for the wrongful act, or omission, or negligence; and the damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions. Such action must be brought within two years from and after the death of the testator or intestate.” 5-5514°—28----8 114 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. appeal. 213 Ala. 222. The case comes here on writ of error. Jud. Code, § 237, as amended. Plaintiff in error does not deny its liability for the negligent act of its employee. But it calls attention to the fact that the Homicide Act imposing liability upon the employer for death resulting from the wrongful acts, omissions or negligence of its employees, as interpreted by the state courts, permits the jury, as in this case, to assess punitive damages against the employer for the mere negligence of its employee. Richmond & Danville R. R. v. Freeman, 97 Ala. 289. A statute which so authorizes the mulcting of the employer, it is argued, is “unreasonably oppressive, arbitrary, unjust, violative of the fundamental conceptions of fair play, and, therefore, repugnant to the Fourteenth Amendment.” The legislation now challenged has been on the statute books of Alabama in essentially its present form since 1872. The liability imposed is for tortious acts resulting in death, but the damages, which may be punitive even though the act complained of involved no element of recklessness, malice or wilfulness, may be assessed against the employer who, as here, is personally without fault. The Supreme Court of Alabama has repeatedly ruled that the statute is aimed at the prevention of death by wrongful act or omission. Savannah & Memphis R. R. v. Shearer, 58 Ala. 672, 680; South and North Alabama R. R. v. Sullivan, 59 Ala. 272, 279. “ The statute is remedial, and not penal, and was designed as well to give a right of action where none existed before, as to ‘ prevent homicides,’ and the action given is purely civil in its nature for the redress of private, and not public wrongs.” Southern Ry. v. Bush, 122 Ala. 470, 489. In defining the scope of the act, the state court has pointed out that the extent of the culpability and the amount of the verdict are for the jury and that its finding is not to be disturbed unless the verdict PIZITZ CO. v. YELDELL. 115 112 Opinion of the Court. is “ induced or reached on account of prejudice, passion, or other improper motive or cause.” Mobile Electric Co. v. Fritz, 200 Ala. 692, 693. The case was argued here on the assumption that its scope was thus limited and we so interpret the statute. Its constitutionality has been upheld by both state and federal courts. Richmond & Danville R. R. v. Freeman, supra; U. S. Cast Iron & Foundry Co. v. Sullivan, 3 Fed. (2d) 794. The objections now urged to a new form of vicarious liability were considered and rejected in the Workmen’s Compensation cases, New York Central R. R. v. White, 243 U. S. 188; Mountain Timber Co. v. Washington, 243 U. S. 219, as they must be rejected here. The extension of the doctrine of liability without fault to new situations to attain a permissible legislative object is not so novel in the law or so Shocking “ to reason or to conscience ” as to afford in itself any ground for the contention that it denies due process of law. The principle of respondeat superior itself and the rule of liability of corporations for the wilful torts of their employees, extended in some jurisdictions, without legislative sanction, to liability for punitive damages, Boyer & Co. v. Coxen, 92 Md. 366; Hanson v. E. & N. A. R. R., 62 Me. 84; Jeffersonville R. R. v. Rogers, 38 Ind. 116; Atlantic & Great West. Ry. v. Dunn, 19 Ohio St. 162; see Jefferson County Savings Bank v. Eborn, 84 Ala. 529, 534; contra, Lake Shore Ry. v. Prentice, 147 U. S. 101, are recognitions by the common law that the imposition of liability without personal fault, having its foundation in a recognized public policy, is not repugnant to accepted notions of due process of law. No constitutional question was presented in Lake Shore Ry. v. Prentice, supra, and this Court thus was free to choose as between these conflicting common law rules the one which it thought most appropriate. Lord Campbell’s Act and its successors, establishing liability for wrongful death where none existed before, 116 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. the various Workmen’s Compensation Acts, imposing new types of liability, are familiar examples of the legislative creation of new rights and duties for the prevention of wrong or for satisfying social and economic needs. Their constitutionality may not be successfully challenged merely because a change in the common law is effected. As interpreted by the state court, the aim of the present statute is to strike at the evil of the negligent destruction of human life by imposing liability, regardless of fault, upon those who are in some substantial measure in a position to prevent it. We cannot say that it is beyond the power of a legislature, in effecting such a change in common law rules, to attempt to preserve human life by making homicide expensive. It may impose an extraordinary liability such as the present, not only upon those at fault but upon those who, although not directly culpable, are able nevertheless, in the management of their affairs, to guard substantially against the evil to be prevented. See St. Louis & Iron Mountain Ry. v. Taylor, 210 U. S. 281; Texas & Pacific Ry. v. Rigsby, 241 U. S. 33, 43; Wilmington Mining Co. v. Fulton, 205 U. S. 60; cf. Van Oster v. Kansas, 272 U. S. 465. Or it may impose on the business or enterprise in which such loss of life occurs the economic burden of the protective measure adopted, New York Central R. R.v. White, supra; Second Employers’ Liability Cases, 223 U. S. 1; or return to and substitute the common law method of permitting the jury to fix the amount of recovery, at least to the extent of an exercise of its reasonable judgment, for the present-day method of weighing and measuring the value of human life. The distinction between punitive and compensatory damages is a modern refinement. The first use of the term “ exemplary damages ” is ascribed to Lord Camden in Huckle v. Money, 2 Wils. 205. See Sedgwick, Damages, § 348. Although sporadic instances of new trials being NEW YORK DOCK CO. v. POZNAN. 117 112 Statement of the Case. ordered because the verdict was excessive may be found in the early common law, see Wood v. Gunston, Style 466; Chambers v. Robinson, 2 Stra. 691, it was not until much later that the formal practice developed, Duberley v. Gunning, 4 T. R. 654; Wilf ord v. Berkeley, 1 Burr. 610; Mayne, Damages, 691, and the fixed rules of damage evolved. Judgment affirmed. NEW YORK DOCK COMPANY v. STEAMSHIP POZNAN, ETC., ET AL. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 229. Argued March 15, 1927.—Decided April 11, 1927. 1. Wharfage service rendered to an arrested ship with the approval or permission of the admiralty court and inuring to the benefit of the fund arising from her sale is entitled to preference, in the distribution of the fund, over the claims of libeling cargo owners. P. 120. 2. Such preference is not based on a lien but is an incident of the equitable administration of the fund. P. 120. 3. A finding of a special commissioner, confirmed by the District Court, as to the reasonable value of wharfage should not be disturbed here when based on a fair trial and sustained by evidence. P. 123. 4. Objections respecting the amount so found, not raised or considered below, will be examined here only so far as necessary to make certain that no palpable error was committed. P. 123. 9 F. (2d) 838, reversed. 297 Fed. 345, affirmed. Certiorari (269 U. S. 547) to a decree of the Circuit Court of Appeals which reversed a decree of the District Court, in admiralty, allowing preferential payment of wharfage out of a fund arising from the sale of a vessel. 118 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. Mr. Alexander J. Field, with whom Messrs. Joseph S. Auerbach, Charles E. Hotchkiss, and Charles H. Tuttle were on the brief, for petitioner. Messrs. George W. Betts, Jr., and Mark W. Maclay, with whom Edna F. Rapallo was on the brief, for respondents. Mr. Justice Stone delivered the opinion of the Court. This case involves the right of a wharf owner to preferential payment from the proceeds of a vessel, for wharfage furnished the vessel while in the custody of a United States marshal under a warrant of arrest in admiralty. The owner of the S. S. Poznan entered into a contract with petitioner, the owner of a private pier in New York harbor, for the use of the pier for discharging cargo from December 1,1920 until completion. The rate agreed upon was $250 per day, plus certain incidental charges not now material. On December 2, 1920, the Poznan was made fast to the pier. Later in the day, she was arrested by the United States marshal for the district upon libels, afterward consolidated into a single cause, for non-delivery of the vessel’s cargo and for damages for breach of contracts of affreightment. The marshal allowed the vessel to remain at the pier. Later, on application of one of the libelling cargo owners, the district court ordered the delivery of a part of the cargo which that libellant had shipped, and made the order applicable to all other libellants who should make a like claim. The discharge of the cargo was then begun and deliveries were made to the several libellants in the consolidated cause, including respondent, the John B. Harris Co. After the cargo had been about one-half discharged, the charterer applied to the district court for leave to move the vessel to another pier where the cargo could be removed more expeditiously. But, on request of some of the libellants and a committee representing the ship- NEW YORK DOCK CO. v. S. S. POZNAN. 119 117 Opinion of the Court. pers, the application was denied on January 5, 1921. The vessel was unloaded by February 18, 1921. Delivery of the cargo from the pier was completed March 1, 1921, but the vessel remained fast to the pier to and including March 11, 1921, when she was removed. Meanwhile, the marshal having declined to pay the bill for wharfage without an order of the court, petitioner, in April, 1921, filed its libel against the vessel for the balance of wharfage charges unpaid, aggregating $17,462. By order of the district court, the libellants in the consolidated cause were permitted to intervene. Respondent, the John B. Harris Co., served notice of intervention, and filed its answer denying the allegations in the libel and praying that it be dismissed on the ground, among others, that the wharfage was furnished while the vessel was in the custody of the marshal, and hence no maritime lien could arise. Respondent has since prosecuted the defense in behalf of all the other libellants in the consolidated cause. The vessel was later sold under an order in the consolidated cause and the proceeds, which were not enough to satisfy the libellants, paid into the registry of the court. The libellants in the consolidated suit have made common cause by stipulation that the recovery under the final decree should be paid to trustees and distributed in accordance with the instructions of a committee representing all of them. The committee found the total claims of the libellants to exceed the amount of the proceeds of the ship. A pro rata distribution has been made to the claimants and an adequate amount reserved to pay the demand of the petitioner, if allowed in this suit. The marshal, although refusing petitioner’s request for payment of the wharfage charge, nevertheless included it in his bill of costs and expenses in the consolidated cause and charged his commission on this amount. The court disallowed these items but “without prejudice to any 120 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. rights of the New York Dock Company to have recourse against the proceeds of the vessel . . .” The district court, in the present libel, allowed as a preferential payment from the proceeds of the ship, the reasonable value of the benefits resulting to the consolidated libellants from the wharfage and incidental service furnished by petitioner, to be determined by a special master. This was found by the master and held by the district court to be the reasonable value of the wharfage. A decree for this amount, less certain payments on account made by the owner of the ship, pursuant to the original contract of wharfage, 297 Fed. 345, was reversed by the circuit court of appeals for the second circuit. 9 F. (2d) 838. This Court granted certiorari. 269 U. S. 547. The court below held that as the wharfage was furnished after the arrest of the ship, and while it was in the custody of the law, no maritime lien could attach, and that a preferential payment could not be supported upon any other theory applicable to the facts of this case. A question much argued, both here and below, was whether the case could be considered an exception to the general rule that there can be no maritime lien for services furnished a vessel while in custodia legis. Cf. The Young America, 30 Fed. 789; The Nisseqogue, 280 Fed. 174; Paxson v. Cunningham, 63 Fed. 132; The Willamette Valley, 66 Fed. 565. But, in the view we take, the case does not turn upon possible exceptions to that rule, as we think petitioner’s right of recovery depends, as the district court ruled, not upon the existence of a maritime lien, but upon principles of general application which should govern whenever a court undertakes the administration of property or a fund- brought into its custody for the benefit of suitors. The libellants in the consolidated cause were not only concerned as owners in securing delivery of the cargo, but as lienors they were interested in the ship and, as eventually appeared, in the whole of her proceeds. Serv- NEW YORK DOCK CO. v. S. S. POZNAN. 121 117 Opinion of the Court. ice rendered to the ship after arrest, in aid of the discharge of cargo, and afterward pending the sale, necessarily inured to their benefit, for it contributed to the creation of the fund now available to them. The most elementary notion of justice would seem to require that services or property furnished upon the authority of the court or its officer, acting within his authority, for the common benefit of those interested in a fund administered by the court, should be paid from the fund as an “ expense of justice.” The Phebe, 1 Ware 354, 359, Fed. Cases 11065. This is the familiar rule of courts of equity when administering a trust fund or property in the hands of receivers. The rule- is extended, in making disposition of the earnings of the property in the hands of the receiver, to require payment of sums due for supplies furnished before the receivership, where their use by the debtor or receiver in the operation of the property has produced the earnings. See Fosdick v. Schall, 99 U. S. 235; Thomas v. Western Car Co., 149 U. S. 95, 110; Virginia de Alabama Coal Co. v. Central R. R., 170 U. S. 355; St. Louis, &c. R. R. v. Cleveland, &c. Ry., 125 U. S. 658, 663, 673; Southern Ry. v. Carnegie Steel Co., 176 U. S. 257; Pennsylvania Steel Co. v. New York City Ry., 208 Fed. 168; Pennsylvania Steel Co. v. New York City Ry., 216 Fed. 458, 470. Such preferential payments are mere incidents to the judicial administration of a fund. They are not to be explained in terms of equitable liens in the technical sense, as is the case with agreements that particular property shall be applied as security for the satisfaction of particular obligations or vendors’ liens and the like, which are enforced by plenary suits in equity. They result rather from the self-imposed duty of the court, in the exercise of its accustomed jurisdiction, to require that expenses which have contributed either to the preservation or creation of the fund in its custody shall be paid before a general distribution among those entitled to receive it. 122 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. We need not inquire here into the exact limits of the powers of courts of admiralty to administer equitable relief as distinguished from that peculiar to the courts of admiralty. This is not a suit, as the court below seemed to think, for the enforcement of an equitable lien. The court of admiralty is asked, in the exercise of its admiralty jurisdiction, to administer the fund within its custody in accordance with equitable principles as is its wont. Cf. United States v. Cornell Steamboat Co., 202 U. S. 184, 194; The Eclipse, 135 U. S. 599, 608; Benedict, Admiralty, 5th ed., § 70. It is defraying from the proceeds of the ship in its registry an expense which it has permitted for the common benefit and which, in equity and good conscience, should be satisfied before the libellants may enjoy the fruits of their liens. Such a preferential payment from the proceeds of the ship, for wharfage furnished to her while in custody, was allowed by the court below in The St. Paul, 271 Fed. 265. But in the present case, that court thought that The St. Paul case was to be distinguished on the ground that there the wharfage service was furnished and the obligation incurred in accordance with an order made by the court and with the consent of the libellants. But here the court denied a motion to remove the ship from petitioner’s wharf with the consent of some of the libellants and with full knowledge of all concerned that the wharfage was then being furnished. The libellants in the consolidated cause, who are united in interest with respondent in the present case, thus appear to have acquiesced in this determination. We are unable to perceive any basis for a distinction between action of the court in authorizing the ship to proceed to the wharf to enable it to discharge its cargo in the one case, and authorizing it to remain there for a like purpose in the other. It is enough if the court approves the service rendered or per- FIDELITY NAT. BANK v. SWOPE. 123 117 Syllabus. mits it to be rendered, and it inures to the benefit of the property or funds in its custody. Objection is made that the amount found by the special master and confirmed by the district court as the reasonable value of the wharfage furnished is excessive, but this issue of fact was fairly tried. The finding of the special commissioner is supported by the evidence and should not be disturbed here. Respondent attempts to raise here questions with respect to the amount of recovery which were neither raised nor considered below. We have examined them only so far as is necessary to ascertain that no error was committed by the district court so plain or apparent as to warrant our consideration on such a state of the record. Cf. Pierce v. United States, 255 U. S. 398, 405; Hiawassee Power Co. v. Carolina-Tenn. Co., 252 U. S. 341; III. Cent. R. R. v. Mulberry Coal Co., 238 U. S. 275, 281; Givens v. Zerbst, 255 U. S. 11, 22; Tilden v. Blair,"21 Wall. 241, 249. The decree below must be reversed and that of the District Court reinstated. Reversed. Mr. Justice Holmes took no part in the consideration and decision of this case. FIDELITY NATIONAL BANK & TRUST COMPANY OF KANSAS CITY et al. v. SWOPE et al. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 46. Argued April 29, 30, 1926.—Decided April 11, 1927. 1. Where jurisdiction of the District Court was based on diverse citizenship as well as the constitutional question raised by the bill, its decree was appealable to the Circuit Court of Appeals, (Jud. Code § 128), and the decree of that court appealable here, under Jud. Code § 241, before amendment. P. 125. 124 OCTOBER TERM, 1926. Counsel for Parties. 274 TJ. S. 2. In a suit under § 28 of Art. VIII of the Kansas City Charter, to validate a special improvement ordinance and proposed assessments of the cost on the lands within the benefit district described in the ordinance, notice to the property owners by publication in a local newspaper is sufficient to constitute due process. Pp. 130, 134. 3. A proceeding under § 28 of Art. VIII of the Kansas City Charter, brought in a state court of plenary jurisdiction by the City against the owners of property in a benefit district for the purpose of determining the validity of an ordinance authorizing a special improvement and of proposed assessments and liens under the ordinance, is a judicial proceeding in which the sole duty of the court is to pass on questions of law and to inquire judicially into the facts only so far as necessary in applying the law—a “ case ” or “controversy,” within the meaning of Const. Art. Ill, § 2; and a judgment validating the ordinance and proposed liens is res judicata, preventing further litigation of these matters by the property owner or his privies in the state or federal courts, otherwise than by appeal. P. 130. 4. A decision of the state supreme court determining the effect of judgments in such proceedings, as res judicata, must be accepted by this Court, though rendered after the litigation which raised the question in this Court was begun. P. 134. 5. In a suit of the kind above described, the contractor who subsequently does the improvement work, and those to whom he assigns the tax bills he receives in payment are represented by the City; so that the estoppel may be availed of by such assignees in a suit by a property owner to annul their tax bills. P. 135. 6. Award of process of execution is not an indispensable adjunct to exercise of the judicial function. P. 132. 2 F. (2d) 676, reversed. Appeal from a decree of the Circuit Court of Appeals which affirmed a decree of the District Court (274 Fed. 801) adjudging void and canceling certain tax bills, held by appellants, which had been issued to defray the cost of grading a boulevard in Kansas City. Messrs. Frank P. Barker and Justin D. Bowersock, with whom Messrs. Samuel J. McCulloch and Hunter M. Meriwether were on the brief, for appellants. FIDELITY NAT. BANK v. SWOPE. 125 123 Opinion of the Court. Mr. Elliott H. Jones, with whom Messrs. W. C. Scarritt, Edward S. North, and A. D. Scarritt were on the brief, for appellees. Mr. Justice Stone delivered the opinion of the Court. Appellees brought suit in the District Court for western Missouri to have certain assessments of benefits on their lands for the alleged pro rata share of the cost of grading Meyer Boulevard in Kansas City declared null and void, and to have canceled certain tax bills issued to defray the cost of grading. Appellants are the holders of these bills which they acquired by purchase. The jurisdiction of the district court rested upon diversity of citizenship and the allegation in the bill that the assessments and the proceedings had in levying them violated the due process clause of the Fourteenth Amendment. The district court, after trial, gave judgment for the relief prayed, 274 Fed. 801, which was affirmed by the court of appeals for the eighth circuit. 2 F. (2d) 676. Since the jurisdiction of the district court was based upon grounds in addition to the constitutional question raised by the bill, the appeal was rightly taken to the circuit court of appeals. Jud. Code, § 128. The case is properly here on appeal from that court. Jud. Code, § 241, before amended. Risty v. Chicago, R. I. & Pac. Ry. Co., 270 U. S. 378; Weiland v. Pioneer Irrigation Co., 259 U. S. 498. The city council of Kansas City, by ordinance adopted in 1915, authorized the present grading improvement. Meyer Boulevard, as projected, is a broad highway extending westwardly from Swope Park, a large public park in Kansas City, connecting with numerous boulevards extending north into the business section of the city. The boulevard varies from two hundred to five hundred feet in width. Provision is made for parkways between the 126 OCTOBER TERM, 1926. Opinion of the Court. 274U.S. driveways so that, of the total improved area of thirty-one acres, approximately twenty acres are made up of a grass parkway. The carrying out of the project involved extensive grading and relatively large expense. Section 3, Art. VIII of the Kansas City charter imposes the cost of ordinary street grading upon the owners of abutting property extending a limited distance from the street. But in view of the extraordinary character of the projected improvement of Meyer Boulevard, proceedings were had under § 28 of Art. VIII of the city charter. This section, printed so far as relevant in the margin,1 establishes a procedure which may be followed for levying a special tax on any lands benefited when the improvement involves an “ unusual amount of filling in or cutting or grading away . . . necessitating an expense of 1 “ When in grading or regrading any street, avenue, highway, or part thereof, a very large or unusual amount of filling in or cutting or grading away of earth or rock be necessary, necessitating an expense of such magnitude as to impose too heavy a burden on the land situate in the benefit district as limited in Section three ...» the cost of grading or regrading such street, . . . may be charged as a special tax on parcels of land (exclusive of improvements) benefited thereby, after deducting the portion of the whole cost, if any, which the city may pay, and in proportion to the benefits accruing to the said several parcels of land, exclusive of improvements thereon, and not exceeding the amount of said benefit, said benefits to be determined by the Board of Public Works as hereinafter provided, and the limits within which parcels of land are benefited shall in all such specified instances be prescribed and determined by ordinance. . . • “ The public work described above shall be provided for by ordinance, and the city may provide that after the passage of the ordinance and after an approximate estimate of the cost of the work shall have been made by the Board of Public Works, the city shall file a proceeding in the Circuit Court of Jackson County, Missouri, in the name of the city, against the respective owners of land chargeable under the provisions of this section with the cost of such work. In such proceeding the city shall allege the passage and approval of the ordinance providing for the work, and the approximate estimate of the cost of said work; and shall define and set forth the limits of the FIDELITY NAT. BANK v. SWOPE. 127 123 Opinion of the Court. such magnitude as to impose too heavy a burden on the land situate in the benefit district as limited in Section three . . benefit district, prescribed by the ordinance, within which it is proposed to assess property for the payment of said work. The prayer of the petition shall be that the court find and determine the validity of said ordinance, and the question of whether or not the respective tracts of land within said benefit district shall be charged with the lien of said work in the manner provided by said ordinance. “ Service of process in such proceeding shall be governed by the provisions of Section eleven (11) of Article thirteen (XIII) of this Charter, relating to service of notice and summons in proceedings for the ascertainment of benefits and damages for the condemnation of land for parks and boulevards. In such proceedings, the city shall have the right to offer evidence tending to prove the validity of said ordinance, and said proposed hen against the respective lots, tracts and parcels of land within said benefit district sought to be charged with such lien; and the respective owners of lots, tracts and parcels of land within said benefit district shall have the right to introduce evidence tending to show the invalidity or lack of legality of said ordinance, and said proposed lien against the respective lots, tracts, and parcels of land owned by each respective defendant; and the court shall have the right to determine the question of whether or not the said lots, tracts and parcels of land owned by each defendant should be charged with such lien. “ The trial of such proceeding shall be in accordance with the Constitution and Laws of the State, and the court shall render judgment either validating such ordinance, and proposed lien against the lots, tracts and parcels of land within said benefit district or against such lots, tracts or parcels of land within said benefit district or against such lots, tracts, or parcels of land as the court' may find legally chargeable with the same, or the court may render judgment that such ordinance or proposed lien are, in whole or in part, invalid and illegal. “Any appeal taken from such judgment must be taken within ten days after the rendition of such judgment, or if a motion for a new trial be filed therein; then within ten days after such motion may be overruled or otherwise disposed of; . . . “ If no appeal shall be taken, or after the determination of such appeal, the city may enter into a contract with the successful bidder 128 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. Following the prescribed procedure, the city council passed an ordinance authorizing the improvement now in question, fixing the boundaries of the benefit district, which embraced the lands of appellees, and directing that the lands within the district should be assessed for the cost of the improvement in proportion to their value as determined under the charter. The ordinance directed that suit be brought by the city in the circuit court of Jackson County against the property owners in the benefit district for the purpose of validating the ordinance and the liens for the cost of the improvements. The Board of Public Works having made its estimate of the approximate cost of the grading, suit was brought by the city in the Jack-son County circuit court. Notice of the proceeding was given all owners of property within the benefit district by four weeks’ publication in a designated local newspaper in accordance with the statute. Proof of service was approved by the court. The appellee Swope entered no appearance but the appellee Brown appeared and raised by answer numerous objections to the ordinance and assessment, including those pressed here. The material parts of the answer, set forth in the margin,* 2 indicate the to whom such work may be let; and, after the work under such contract shall have been fully completed, the estimate of cost thereof, and the apportionment of the same against the various lots, tracts and parcels of land within the benefit district, shall be made by the Board of Public Works according to the assessed value thereof, exclusive of improvements, with the assistance of the City Assessor as provided in Section three of this article, and all of the provisions of Section three of this article relating to the apportionment of special assessments, and the levy, issue and collection of special tax bills as in grading proceedings as in said section specified, shall apply to special tax bills issued pursuant to this section, .. . .” 2“Said parties state that they are the defendants herein and the owners of said property, and that said property does not abut on Meyer Boulevard; that the South line thereof is a quarter of a mile from said boulevard, and the north line thereof is a half mile from FIDELITY NAT. BANK v. SWOPE. 129 123 Opinion of the Court. scope of this proceeding. After a hearing, the court entered its judgment declaring valid the ordinance and the proposed assessments and liens, when effectuated in accordance with the ordinance. The motion of the appellee Brown for a new trial was denied. No appeal was taken from the decree of the court, which thus became final. The city then let the contracts for the improvements, which have been completed. The costs have been apportioned according to the valuation of the lands madS by the city assessor, and tax bills, including those held by appellants, issued against the several tracts for the proportionate part of the special benefit tax assessed. In this suit to cancel the tax bills so issued, appellees alleged that § 28 of Art. VIII of the charter and the said Meyer Boulevard. Said defendants state that their property is not directly benefited by the opening of said boulevard, and is only remotely benefited, as all other property in Kansas City is. That the property of defendants, above described, lines on one boulevard, to-wit: Swope Parkway, upon which is operated a street car line, and it can derive no particular and special benefit from the grading of said Meyer Boulevard. That the grading of said boulevard will greatly enhance the value of the property abutting on said boulevard, and yet, in the apportionment of the cost of said grading, the property of said defendants, fronting on said Swope Parkway, may be assessed at as great a sum as the property on said Meyer Boulevard, and the effect would be that the special tax levied thereunder against the property of defendants may equal, acre for acre, the special tax assessed against the property immediately benefited, to-wit: the property abutting on said Meyer Boulevard. “ Defendants further state, that for the reasons, aforesaid, it would be illegal and improper for the court to declare this ordinance valid, and it would also be illegal for the reason that on its face thereof, the charter provision authorizing this proceeding is void, for the reason that it violates the Constitution of Missouri, and the Constitution of the United States. It would be just as legal to provide that because the paving of said Meyer Boulevard was of an unusual width, and the cost of paving thereof excessive, that the land within half a mile of said boulevard should pay in proportion to its value for the paving of same.” 5'5514°—28-9 130 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. city ordinance and all proceedings under them violated the Constitution of the United States; that the levying of the tax was an arbitrary and abusive exercise of legislative authority, in that (1) the improvement was general rather than local; (2) that the method of fixing the benefit district was arbitrary, discriminatory and unreasonable, and (3) that the assessment according to the value of the lands benefited, regardless of their remoteness from the improvement, resulted in an assessment greatly exceeding the benefits. Appellants at the outset argue that all the objections made to the assessments here were open and hence decided against appellees in the proceeding in the Jackson County circuit court, and that its judgment is not open to collateral attack in this or in any other suit, since the issues which might have been litigated there are res adjudicata here. The proceedings in the circuit court were had upon sufficient notice to constitute due process in proceedings of this character. Lent v. Tillson, 140 U. S. 316; cf. North Laramie Land Co. v. Hoffman, 268 U. S. 276. The parties to it are concluded by the judgment if the proceeding was judicial rather than legislative or administrative in character. Both courts below held that the questions here in controversy at the time of the hearing in the state court were “moot”; and, even if their adjudication was authorized by the legislature and was specifically made by the circuit court, it would not be binding upon the parties in the federal courts. But if the determination of the state court was res adjudicata according to its laws and procedure, no reason is suggested, nor are we able to perceive any, why it is not to be deemed res adjudicata here, if the proceeding in the state court was a “ case ” or “ controversy ” within the appellate jurisdiction of this Court, Fed. Const. Art. Ill, § 2, so that constitutional rights asserted, or which FIDELITY NAT. BANK v. SWOPE. 131 123 Opinion of the Court. might have been asserted in that proceeding, could eventually have been reviewed here. That this proceeding authorized by § 28 of the Kansas City charter was judicial in character appears from an inspection of the statute and the record in the circuit court. The proposed improvement having been authorized, the benefit district established, the estimated cost ascertained, all by action of the city council or the board of public works essentially legislative in character, the jurisdiction of the state court was invoked in an adversary proceeding to determine the validity of the liens imposed or to be imposed under the ordinance. That court is a court of general jurisdiction, having plenary power to determine all questions arising under the state law or the laws and Constitution of the United States. Section 2436 Mo. Rev. Stat. 1919; Schmelzer v. Kansas City, 295 Mo. 322. These questions are required to be determined in a trial in accordance with the laws and constitution of the State. The sole duty and power of the court is to pass upon questions of law and to inquire judicially into the facts so far as necessary to ascertain the applicable rules of law. See Keller v. Potomac Elec. Co., 261 U. S. 428, 440. Under this procedure, the judgment to be awarded finally determines, subject to appeal, the validity of the ordinance authorizing the improvement, the limits of the benefit district, the method of apportioning benefits, and the validity of the proposed liens. That the issues thus raised and judicially determined would constitute a case or controversy if raised and determined in a suit brought by the taxpayer to enjoin further proceedings under the ordinance could not fairly be questioned. Compare Risty v. Chicago, R. I. & Pac. Ry. Co., supra. They cannot be deemed any the less so because through a modified procedure the parties are reversed and the same issues are raised and finally determined at the behest of the city. We do not think sig- 132 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. nificant the fact that under § 28 the city might pay, though it did not, a part of the cost of the improvement and that the council, in authorizing the special tax, is required to deduct from the estimated cost the amount which may be paid by the city. These provisions could not restrict the authority or capacity of the court to pass upon the validity of the benefit district and the special tax actually authorized by the ordinance. While ordinarily a case or judicial controversy results in a judgment requiring award of process of execution to carry it into effect, such relief is not an indispensable adjunct to the exercise of the judicial function. Naturalization proceedings, Tutun v. United States, 270 U. S. 568; suits to determine a matrimonial or other status; suits for instructions to a trustee or for the construction of a will, Traphagen v. Levy, 45 N. J. Eq. 448; bills of interpleader, so far as the stakeholder is concerned, Wakeman v. Kingsland, 46 N. J. Eq. 113; bills to quiet title where the plaintiff rests his claim on adverse possession, Sharon v. Tucker, 144 U. S. 533; are familiar examples of judicial proceedings which result in an adjudication of the rights of litigants“ although execution is not necessary to carry the judgment into effect, in the sense that no damages are required to be paid or acts to be performed by the parties. Cf. Kennedy v. Babcock, 19 Misc. (N. Y.) 87; Cohen v. N. Y. Mutual Life Ins. Co., 50 N. Y. 610, 625. Nor is it essential that only established and generally recognized forms of remedy should be invoked. “ Whenever the law provides a remedy enforceable in the courts according to the regular course of legal procedure, and that remedy is pursued, there arises a case within the meaning of the Constitution, whether the subject of the litigation be property or status.” Tutun v. United States, supra, 577. Thus, naturalization proceedings, Tutun v. United States, supra, or a special statutory proceeding to determine judicially whether the claim made by a domestic corporation FIDELITY NAT. BANK v. SWOPE. 133 123 Opinion of the Court. against a foreign country upon which an award had been made by a United States commissioner pursuant to treaty, had been furthered by fraud, the statute authorizing distribution of the fund in accordance with the judgment, La Abra Silver Mining Co. v. United States, 175 U. S. 423, are cases or controversies within the meaning of the Constitution. Tregea v. Modesto Irrigation District, 164 U. S. 179, is cited as authority for the proposition that the proceeding had in the Missouri court is not judicial in character. But this Court in that case rested its decision on its interpretation of the California statute in question. It held in effect that the proceeding authorized was not adversary, being a proceeding by the trustee of an irrigation district against the district itself, and that it was essentially ex parte, its purpose being to secure evidence on the basis of which the court could render an advisory opinion as to the validity of a pending bond issue. These were considerations which could only lead to the conclusion reached that the proceeding was not a case or controversy of which this Court could take cognizance in the exercise of its appellate jurisdiction. The present statute admits of no such construction. The proceeding is in terms directed to be “ against the respective owners of land chargeable under the provisions of this section with the cost of such work,” and the specific issue to be determined by the judgment of the court is whether or not the respective tracts in the benefit district shall be charged with the lien as provided by the ordinance. The court is directed to render judgment “ either validating such ordinance, and proposed lien against the lots, . . . within said benefit district or against such lots, ... as the court may find legally chargeable, . . . or the court may render judgment that such ordinance or proposed lien are, in whole or in part, invalid and illegal.” The plain effect of these provisions is to 134 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. authorize the court to examine and determine the validity and effect of the legislative action in establishing the benefit district. The result of the proceeding is to establish judicially as against the property owners in the district the validity of such action and of the liens established or to be established conformably to the statute on the specific property described. The issues presented and the subject matter are such that the judicial power is capable of acting upon them. There is no want of adverse parties necessary to the creation of a controversy as in Muskrat v. United States, 219 U. S. 346. The judgment is not merely advisory as in Liberty Warehouse Co. v. Grannis, 273 U. S. 70; New Jersey v. Sargent, 269 U. S. 328; Fairchild v. Hughes, 258 U. S. 126; Massachusetts v. Mellon, 262 U. S. 447; Texas v. Interstate Commerce Commission, 258 U. S. 158, 162. It operates to determine judicially the legal limits of the benefit district and to define rights of the parties in lands specifically described in the pleadings. So far as it affects owners of land in the benefit district who are citizens of other states, the controversy is a “ suit ” which may be removed to the federal courts. Jud. Code, § 28; Road District v. St. Louis Southwestern Ry.. 257 U. S. 547. That the judgment is binding on the parties and their privies and hence not open to collateral attack would seem to be the only reasonable construction of the statute if that question were for us to decide. But the Supreme Court of Missouri, since the pendency of the present suit, has held that the judgment rendered by the Jackson County Circuit Court in a similar proceeding is not open to collateral attack by the property owners within the benefit district, and that such property owners may not litigate, in another suit, questions, including the constitutionality under the Fourteenth Amendment of the assessments levied, which might have been raised in the circuit court proceeding. Schmelzer v. Kansas City, supra. This decision, although subsequent to the insti- MORRIS v. DUBY. 135 123 Syllabus. tution of the present suit, effected no change in the local law, upon which appellees had relied. It must be accepted as establishing the effect as res adjudicata of the proceeding had under the Missouri statute. Compare Edward Hines Trustees v. Martin, 268 U. S. 458. Whether the proceeding be regarded as an action in rem, Christianson v. King County, 239 U. S. 356, 373, or an action in personam, there is in the two litigations a sufficient identity of issues and of parties to conclude the parties to the present suit. United States v. California Bridge Co., 245 U. S. 337, 341. Viewed as an action in personam, appellants acquired their title to the tax bills by purchase from the contractor, whose right to them was derived through the exercise by the city of powers adjudicated in the circuit court proceedings to be in it and properly exercised by it. As to those powers, and hence their rights originating in the exercise of them, appellants were represented by the city and may take the benefit of the judgment in its favor. United States v. California Bridge Co., supra, 341. Judgment reversed. MORRIS et al. v. DUBY et al., COMMISSIONERS. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF OREGON. No. 372. Argued October 29, 1926*—Decided April 18, 1927. 1. The power of the States to make reasonable regulations to protect highways from damage by vehicles is not affected by the Acts of Congress providing for national and state cooperation in the construction of rural post roads. P. 143. * On the above date the Court entered an order remanding the case and vacating the judgment of the District Court upon the ground that the case had become moot. On January 10, 1927, the previous order was vacated on joint motion of counsel and the case was restored for reargument on February 28, 1927. On that day the case was submitted. 136 OCTOBER TERM, 1926. Argument for Appellants. 274 U. S. 2. A state order limiting the maximum weight of motor trucks and loads on highways in the State is valid, if reasonable and non-discriminatory, and is applicable to vehicles moving in interstate commerce, in the absence of legislation by Congress. P. 143. 3. The fact that a truck company, in interstate commerce, may not make a profit if loads are limited as prescribed by a state highway regulation, does not prove the regulation unreasonable or discriminatory, and the fact that its competition with parallel steam roads may be prevented is outweighed by the fact that greater loads damage the highways. P. 144. 4. In the absence of a showing of fraud or abuse of discretion, a finding of the proper state administrative body as to the damage caused to highways by loads exceeding a specified weight must be accepted by this Court. P. 144. 5. The Acts of Congress and of Oregon for state and federal cooperation respecting construction and maintenance of highways do not impose a contractual obligation on the State to continue permitting the weights of trucks and loads that were permitted on the highways when the agreement was made. P. 144. 6. Under the convention effected between the State and the United States by the State’s acceptance of the conditions prescribed in the Acts of Congress providing for state and federal cooperation, and use cf federal funds, in improvement of highway systems and in facilitating carriage of the mail over them, maintenance of a highway is primarily imposed on the State, and regulation of its use is therefore a state function in which it is not to be interfered with unless regulations adopted are so arbitrary or unreasonable as to defeat the purposes of the federal acts. P. 145. Affirmed. Appeal from a decree of the District Court refusing an interlocutory injunction and dismissing the bill, in a suit to enjoin the members of the Oregon Highway Commission from enforcing an order limiting thé weight of trucks and loads that may operate on a highway in the State. . Messrs. W. R. Crawford and Edwin C. Ewing for appellants, submitted. Sections 35 and 36 of the Oregon law enacted in 1921, as amended in 1923, and the acts of the highway commission thereunder, in reducing the capacity of certain MORRIS v. DUBY. 137 135 Argument for Appellees. motor trucks, are unconstitutional and void, being in violation of the federal Constitution and the federal Highway Act, which was adopted by the State in 1917. The federal Highway Act provided that the entire jurisdiction over federal-aided highways was to be vested in the federal government and gave the power and authority to the Secretary of Agriculture to carry out its provisions. The Secretary of Agriculture has the only power to take steps to conserve and preserve such highways and insure the safety of traffic thereon, and the enactment of the 1921 law and the 1923 amendments, and the acts of the highway commission in issuing and enforcing the order, were directly in violation of the agreement made by the State in the adoption of the provisions of the federal law in 1917. Neilson N. Oregon, 212 U. S. 315; New Jersey v. Wilson, 7 Cr. 165; Buck v. Kuykendall, 267 U. S. 307. This order directly effects the just and reasonable charges on the interstate business. If the State had directly fixed the present tariff and reduced thé same 50% on said interstate business, the appellants would be entitled to an injunction and a decree after final hearing on the ground that such exaction would have been contrary to and in violation of the Constitution of the United States as being arbitrary, unreasonable and confiscatory. We consider that such order has the same effect. Railroad Commission Cases, 116 U. S. 307; Chicago R. Co. v. Minnesota, 134 U. S. 418; Reagan v. Loan Co., 154 U. S. 362; St. Louis R. Co. v. Gill, 156 U. S. 649; Buck v. Kuykendall, 267 U. S. 307. The order is arbitrary and unreasonable and created a monopoly in favor of other common carriers in competition with the trucks of appellants. Mr. J. M. Devers, Assistant Attorney General of Oregon, with whom Mr. I. H. Van Winkle, Attorney General, was on the brief, for appellees. 138 OCTOBER TERM, 1926. Argument for Appellees. 274 U. S. The paramount control of the public highways of the State is vested in the legislature. Control is sometimes delegated, but is never surrendered. 13 R. C. L., § 143; Atkin v. Kansas, 191 U. S. 207; Cicero Lbr. Co. v. Cicero, 176 Ill. 9; Salem v. Anson, 40 Ore. 339; Elliott, Roads and Streets, 2d ed. p. 8; Brand v. Multnomah County, 38 Ore. 79; Yocum v. Sheridan, 68 Ore. 237. The right to regulate the public highways can not be abridged, alienated or contracted away by the legislature. Mugler v. Kansas, 123 U. S. 623; Prigg v. Pennsylvania, 16 Pet. 539; Leisy v. Hardin, 135 U. S. 100; Boyd v. Allen, 94 U. S. 645; Stone v. Mississippi, 101 U. S. 814. The matter of regulating the amount of loads to be hauled over the highways is within the discretion of the authorities charged with their care and maintenance; and when any such regulation within the scope of the authority of the law-making power has been passed, the prima facie presumption is that the regulation is reasonable and proper, and in order to warrant the court in coming to a definite conclusion there must be evidence introduced showing that in the particular case the discretion granted to the legislative body has been abused and the rights of the individuals taken from them. Cooley, Const. L. 542; Transportation Co. v. Chicago, 99 U. S. 635; Slaughter House Cases, 16 Wall. 36; Fertilizing Co. v. Hyde Park, 97 U. S. 659; Phelan v. Virginia, 8 How. 163; Stone v. Mississippi, 101 U. S. 814; Patterson n. Kentucky, 97 U. S. 501; Gibbons v. Ogden, 9 Wheat. 31. The organic provision securing private rights does not preclude reasonable regulation of the use of private property to preserve the highways and to preserve the public safety and welfare, even if such regulation renders less valuable or curtails the use of the property already acquired, the public safety and necessity being superior to private property rights. Bonsteel v. Allen, 83 Fla. 214; Pittsburgh & R. Co. v. Hartford, 170 Ind. 674; Chicago MORRIS v. DUBY. 139 135 Opinion of the Court. de Alton R. Co. v. Tranbarger, 238 U. S. 67; Fertilizing Co. v. Hyde Park, 97 U. S. 659. The order of the highway commission is not a regulation of interstate commerce, but a regulation of the highways under the police power. Buck v. Kuykendall, 267 U. S. 307, distinguished. Congress having made no regulation in regard to the use of the highways, the power is vested in the legislature of the State, being a local and concurrent power. Welton n. Missouri, 91 U. S. 275; Henderson v. Mayor, 92 Ind. 259; Mobile v. Kimball, 102 Ind. 691; Escanaba Co. v. Chicago, 107 U. S. 678. Mr. Chief Justice Taft delivered the opinion of the Court. The plaintiffs below, the appellants here, owned and operated for hire, under proper license, motor trucks on the Columbia River Highway in Oregon, from the east boundary of Multnomah County to the west limits of the city of Hood River, a distance of 22.11 miles. This Highway extends from Portland to The Dalles, Oregon, and is a rural post road. The plaintiffs have complied with all the state rules and regulations respecting the operation of motor trucks upon the Highway, and under previous regulations carried a combined maximum load of not exceeding 22,000 pounds. The Highway Commission, under a law of Oregon, has reduced the maximum to 16,500 pounds, by an order in which the Commission recites that the road is being damaged by heavier loads. The plaintiffs filed this bill to enjoin the enforcement of the order, on the ground that it invades their federal constitutional rights. The case was heard under § 266 of the Judicial Code, as amended by the Act of February 13, 1925, c. 229, 43 Stat. 926, before a court of three judges, on an order to show cause why a preliminary injunction should not issue restraining the Commission from enforcing the order. A 140 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. motion to dismiss was interposed to the complaint by the defendant and submitted at the same time. The District Court denied the application for a preliminary injunction, and granted the motion to dismiss the plaintiff’s amended bill, on the ground that it did not state facts sufficient to constitute a cause of action or to entitle the plaintiffs to the relief demanded. As the plaintiffs refused to plead further, the cause was dismissed, and the case comes here directly from the District Court by virtue of paragraph 3 of § 238 of the Judicial Code, as amended by the Act of February 13, 1925, c. 229, 43 Stat. 936. The Secretary of Agriculture, by virtue of three Acts of Congress, one of July 11, 1916, c. 241, 39 Stat. 355, an amendment thereto of February 28, 1919, c. 69, 40 Stat. 1189, 1200, and the Federal Highway Act of November 9, 1921, c. 119, 42 Stat. 212, is authorized to cooperate with the States, through their respective highway departments, in the construction of rural post roads. These require that no money appropriated under their provisions shall be expended in any State until it shall by its legislature have assented to the provisions of the Acts. They provide that the Secretary of Agriculture and the state highway department of each State shall agree upon the roads to be constructed therein and the character and method of their construction. The construction work in each State is to be done in accordance with its laws, and under the supervision of the state highway department, subject to the inspection and approval of the Secretary and in accord with his rules and regulations made pursuant to the federal acts. The States are required to maintain the roads so constructed according to their laws. In case of failure of a State to maintain any highway within its boundaries after construction or reconstruction, the Secretary is authorized to proceed on notice to have the highway placed in proper condition of maintenance, at the charge and cost of the federal funds allotted to the State, MORRIS v. DUBY. 141 135 Opinion of the Court. and henceforth to refuse any further project in such State until the State shall reimburse the Government for such maintenance and shall pay into the Federal Highway Fund for reapportionment among all the States the sum thus expended. By § 5, c. 237, of the General Laws of Oregon for 1917, the Oregon Highway Law was passed. That creates a highway commission with authority to carry out the provisions of the Act and to exercise general supervision over all matters pertaining to the construction of state highways and to determine the general policy of the highway department. By § 5, the Oregon Legislature assents to the provisions of the Act of Congress of 1916, furnishing aid in the construction of rural post roads, and the Department is authorized to enter into all contracts and agreements with the National Government relating to the survey, construction, improvement and maintenance of the roads under the Act of Congress, and to submit any scheme of construction as*may be required by the Secretary of Agriculture, and to do all things necessary to carry out the cooperation contemplated by the Act. The good faith of the State is pledged to make the available funds sufficient to equal the funds apportioned to the State by the Government, and to maintain the roads constructed or improved with the aid of funds so appropriated, and to make adequate provision for carrying out such maintenance. By the General Laws of Oregon, 1917, § 28, c. 194, p. 256, 268, in force when the first federal act was passed, it was provided that no motor truck of over five tons capacity should be driven or operated on any road or highway of the State except with the consent and upon a permit issued by the county court of the county wherein such truck was sought to be driven or operated ; and this was the provision of law in force when the law was passed accepting the federal acts for Oregon. By the General Laws of Oregon of 1921, c. 371, § 35, 142 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. it was provided that the Highway Commission and the county court might grant special permits to permit any vehicle having with its load a combined weight in excess of 22,000 pounds, to move on the highways, the permission to be written and to include such terms, rules and stipulations as the commission or court might deem proper. By § 36 of the same act, whenever in the judgment of the State Highway Commission or any county court or board of county commissioners of any county it would be for the best interests of the State or county and for the protection from undue damage of any highway or highways or any sections thereof, to reduce the maximum weights and speeds in the Act provided, for vehicles moving over or upon the highways of the State, and to fix the reduced weights and speeds and prohibit the use of such highways for any other weights, authority is given such commission or board to do so and to post a notice of the limitation. The order complained of, set forth as an exhibit to the amended bill of complaint, recites that the Commission, as a result of due investigation, finds that the road is being damaged and injured on account of the kind and character of traffic now being hauled over it, and that the loads of maximum weight moved at the maximum speed are breaking up, damaging and deteriorating the road, and that it will therefore be for the best interests of the state highway that the maximum weight be reduced from 20,000 to 16,500, and that changes be made with respect to tires and their width. The amended bill gives a history of the highway and its continued use for a weight of 22,000 pounds for four years, which has been availed of by the appellants as common carriers and as members of an Auto Freight Transportation Association of Oregon and Washington, with costly terminals in Portland established by requirement of that city; it alleges that the twenty-two miles MORRIS v. DUBY. 143 135 Opinion of the Court. of the Columbia River Highway here involved is a part of the interstate highway from Astoria, Oregon, into the State of Washington, and all subject to the Federal Highway Acts, and that this order will interfere with interstate commerce thereon. The amended bill denies the damage to the road as found by the Highway Commission, and says that the reduction of the limit will be unreasonable, arbitrary and discriminatory. It avers that the plaintiffs have been engaged in active competition with steam railroads paralleling the Columbia River Highway and charging rates of traffic which, unless the appellants can use trucks combined with loads of 22,000 pounds, will prevent their doing business except at a loss. It alleges that the acts of Congress and of Oregon constitute a contract by which the permission for the use of a truck of five tons capacity without regard to weight of the truck itself, is a term which can not be departed from by the State Highway Commission, and constitutes a protection to the plaintiffs of which they may avail themselves in this action. An examination of the acts of Congress discloses no provision, express or implied, by which there is withheld from the State its ordinary police power to conserve the highways in the interest of the public and to prescribe such reasonable regulations for their use as may be wise to prevent injury and damage to them. In the absence of national legislation especially covering the subject of interstate commerce, the State may rightly prescribe uniform regulations adapted to promote safety upon its highways and the conservation of their use, applicable alike to vehicles moving in interstate commerce and those of its own citizens. Hendrick n. Maryland, 235 U. S. 610, 622, et seq.; Kane v. New Jersey, 242 U. S. 160, 167. Of course the State may not discriminate against interstate commerce. Buck v. Kuykendall, 267 U. S. 307. But there is no sufficient averment of such discrimination in the bill. In the Kuykendall case this Court said, p. 315: 144 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. “ With the increase in number and size of the vehicles used upon a highway, both the danger and the wear and tear grow. To exclude unnecessary vehicles—particularly the large ones commonly used by carriers for hire— promotes both safety and economy. State regulation of that character is valid even as applied to interstate commerce, in the absence of legislation by Congress which deals specifically with the subject. Vandalia R. R. Co. v. Public Service Commission, 242 U. S. 255; Missouri Pacific Ry. Co. v. Larabee Flour Mills Co., 211 U. S. 612. Neither the recent federal highway acts, nor the earlier post road acts, Rev. Stat., § 3964; Act of March 1st, 1884, & 9, 23 Stat. 3, do that.” The mere fact that a truck company may not make a profit unless it can use a truck with load weighing 22,000 or more pounds does not show that a regulation forbidding it is either discriminatory or unreasonable. That it prevents competition with freight traffic on parallel steam railroads may possibly be a circumstance to be considered in determining the reasonableness of such a limitation, though that is doubtful, but it is necessarily outweighed when it appears by decision of competent authority that such weight is injurious to the highway for the use of the general public and unduly increases the cost of maintenance and repair. In the absence of any averments of specific facts to show fraud or abuse of discretion, we must accept the judgment of the Highway Commission upon this question, which is committed to their decision, as against merely general averments denying their official finding. Nor is there anything either in the federal or state legislation to support the argument that the agreement between the national and state governments requires that the weight of truck and load which was permitted by the State when the agreement was made binds the State contractually to continue such permission. Conserving FED. TRADE COMM. v. KLESNER. 145 135 Syllabus. limitation is something that must rest with the road supervising authorities of the State, not only on the general constitutional distinction between national and state powers, but also for the additional reason, having regard to the argument based on a contract, that under the convention between the United States and the State, in respect of these jointly aided roads, the maintenance after construction is primarily imposed on the State. Regulation as to the method of use, therefore, necessarily remains with the State and can not be interfered with unless the regulation is so arbitrary and unreasonable as to defeat the useful purposes for which Congress has made its large contribution to bettering the highway systems of the Union and to facilitating the carrying of the mails over them. There is no averment of the bill or any showing by affidavit making out such a case. The temporary injunction was rightly refused and the motion to dismiss the bill was properly granted. Affirmed. FEDERAL TRADE COMMISSION v. KLESNER. CERTIORARI TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. No. 211. Argued March 10, 1927.—Decided April 18, 1927. The provision of the Federal Trade Commission Act, § 5, conferring jurisdiction on the Circuit Courts of Appeals to enforce, set aside, or modify orders of the Commission, should be construed as conferring like jurisdiction upon the Court of Appeals of the District of Columbia respecting orders to be enforced in that District. P. 154. So held in view of the parallelism between the Supreme Court of the District and the Court of Appeals, as federal courts, on the one hand, and the District Courts and Circuit Courts of Appeals on the other; the fact that the jurisdiction to assist the Commis-sion in compelling evidence which the Act confers on the District 5'5514°—28---10 146 OCTOBER TERM, 1926. Argument for Petitioner. 274U.S. Courts is conferred also on the District Supreme Court, through § 61 of the Code, D. C.; and the additional consideration that enforcement of the Act in the District, as intended, is dependent on the construction of § 5 above indicated. 6 F. (2d) 701, reversed. Certiorari (269 U. S. 545) to a judgment of the Court of Appeals of the District of Columbia which dismissed, for want of jurisdiction, an application of the Federal Trade Commission based on § 5 of the Federal Trade Commission Act, for a decree to enforce an order of the Commission commanding Klesner to desist from a method of doing business in the District of Columbia which the Commission found to be an unfair method of competition. Mr. Adrien F. Busick, with whom Solicitor General Mitchell, and Messrs. Bayard T. Hainer, and Charles Melvin Neff were on the brief, for petitioner. In order to carry out the plain provisions of the statute, it is necessary that the words “ circuits courts of appeals ” should be construed to include the Court of Appeals of the District of Columbia. To read them otherwise is to attribute to Congress an intention to make an order of the Commission directed at unfair competition in commerce in the District of Columbia enforceable if the offending person resides outside of the District and within the jurisdiction of some Circuit Court of Appeals, but unenforceable if he resides in the District. The statute should not be construed to produce absurd results, if it may reasonably be avoided. If the Court of Appeals of the District was right in the decision in this case, it will follow that neither the Interstate Commerce Commission, the Federal Reserve Board, nor the Federal Trade Commission may enforce the provisions of the Clayton Act with respect to commerce in the District unless the offending person or corporation resides outside of it. FED. TRADE COMM. v. KLESNER. 147 145 Argument for Respondent. Appellate jurisdiction has been upheld where the language of the statute did not exactly describe the courts which were ultimately held to have jurisdiction or did not definitely include the class of cases in which jurisdiction was held to have been conferred. & £ Coquitlam v. United States, 163 U. S. 346; Hoskins v. Funk, 239 Fed. 278; Craig n. Hecht, 263 U. S. 255; Webb v. York, 74 Fed. 753. The Supreme Court and the Court of Appeals of the District of Columbia, and the courts of the Territories perform those judicial functions that are elsewhere performed by both state and federal courts. For the purpose of enforcing federal statutes of general application, these courts are a part of the federal judicial system. But when they are enforcing statutes of local application only, they have such powers and jurisdiction “ as a State may confer on her courts.” Keller v. Pot. Elec. Co., 261 U. S. 428; Benson v. Henkel, 198 U. S. 1; Hyattsville Bldg. Assn. v. Bouick, 4A App. D. C. 408; United States v. B. de 0. R. R., 26 App. D. C. 581. It is not out of accord with the laws establishing its jurisdiction to hold that the Court of Appeals of the District of Columbia is a “ Circuit Court of Appeals ” within the meaning of the Federal Trade Commission Act. Since, so far as the general federal laws are concerned, the jurisdiction of the Supreme Court of the District of Columbia is the same as that of the United States District Courts, the appellate jurisdiction of the Court of Appeals of the District of Columbia, sitting as a federal appellate court, is the same in character and functions as that of the Circuit Courts of Appeals of the United States. Mr. Harry S. Barger., with whom Mr. Clarence R. Ahalt was on the brief, for respondent. The Court of Appeals of the District of Columbia is a court of the United States; but it is not a constitutional 148 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. court of the United States in the same sense that the Circuit Courts of Appeals of the United States and the United States District Courts are constitutional courts, and, in respects too numerous to mention, it does not possess the same jurisdiction possessed by the Circuit Courts of Appeals of the United States. Toi say that the Court of Appeals of the District of Columbia is a “ Circuit Court of Appeals of the United States,” without more authority than is found in the Federal Trade Commission Act, would be the same as saying that, because Congress has expressly and in apt language conferred concurrent jurisdiction upon the United States District Courts and the Court of Claims in sums not exceeding ten thousand dollars, the District Courts are Courts of Claims, or that the Court of Claims is a District Court of the United States. Even if Congress had used apt language to confer special jurisdiction on the Court of Appeals of the District of Columbia to review decisions of the Federal Trade Commission, that court would in no sense be a “ Circuit Court of Appeals of the United States.” Chapman n. United States, 164 U. S. 436; In re Heath, 144 U. S( 92; Cross v. United States, 145 U. S. 572; Farnsworth v. Montana, 129 U. S. 104; United States v. Sanges, 144 U. S. 310; United States N. Moore, 3 Cr. 159. To demonstrate conelusively that Congress does not regard the Court of Appeals of the District of Columbia as a “ Circuit Court of Appeals,” reference is made to § 238 of the Judicial Code as well as to § 250 thereof, wherein radically different provisions obtain for appeals from the courts of the United States outside the District of Columbia and those from the courts of the District. Mr. Chief Justice Taft delivered the opinion of the Court. The question presented in this case is whether the Court of Appeals of the District of Columbia has, under FED. TRADE COMM. v. KLESNER. 149 145 Opinion of the Court. the Federal Trade Commission Act, 38 Stat. 717, jurisdiction to enforce, set aside or modify orders of the Federal Trade Commission, entered against persons engaged in commerce within the District of Columbia, requiring them to cease and desist from the use of unfair methods of competition within the District. The case, as made before the Commission, was as follows: Klesner, a resident of the District, was engaged, among other things, in the manufacture and sale of window shades in the District, doing business under the name and style of “ Shade Shop.” For some years prior to respondent’s entry into this business, another establishment had been engaged exclusively in the window shade business under the same name and style, and had become well and favorably known to the purchasing public by that name. The charge heard before the Commission was that the respondent, by the use of the name “ Shade Shop,” was deceiving the purchasing public into the belief that his establishment was that of a prior long-established competitor, and by this means was causing people to deal with the respondent, in the belief that they were dealing with his competitor. Klesner answered, denying the charge. Evidence was received upon the issues joined, and after argument the Commission made its report upon the facts and issued an order requiring the respondent to cease and desist from doing business in the District of Columbia under the name of “Shade Shop.” Klesner failed and refused to obey the order, and the Commission applied to the Court of Appeals of the District of Columbia for a decree of enforcement. That court, without considering the merits of the case, held that it was without jurisdiction in the premises, and dismissed the Commission’s petition, June 1, 1925, in an opinion reported in 6 F. (2d) 701. A petition for certiorari was granted by this Court October 26, 1925, (269 U. S. 545) pursuant to § 240 (a) of the Judi- 150 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. cial Code, as amended by the Act of February 13, 1925, c. 229, 43 Stat. 938. The ground for the dismissal of this case by the Court of Appeals was that Congress, in the Trade Commission Act, had not given jurisdiction to the Court of Appeals of the District of Columbia over suits brought to enforce the order of the Commission as it had done in respect of such suits in the proper circuit courts of appeals. The pertinent part of the Federal Trade Commission Act bearing on this question we have set out in the margin.* * * “ Sec. 4. That the words defined in this section shall have the following meaning when found in this Act, to wit: " ‘ Commerce’ means commerce among the several States or with foreign nations, or in any Territory of the United States or in the District of Columbia, or between any such Territory and another, or between any such Territory and any State or foreign nation, or between the District of Columbia and any State or Territory or foreign nation. . . . “ Sec. 5. That unfair methods of competition in commerce are hereby declared unlawful. * The commission is hereby empowered and directed to prevent persons, partnerships, or corporations, except banks, and common carriers subject to the Acts to regulate commerce, from using unfair methods of competition in commerce. “ Whenever the commission shall have reason to believe that any such person, partnership, or corporation has been or is using any unfair method of competition in commerce, and if it shall appear to the commission that a proceeding by it in respect thereof would be to the interest of the public, it shall issue and serve upon such person, partnership, or corporation a complaint stating its charges in that respect, and containing a notice of a hearing upon a day and at a place therein fixed at least thirty days after the service of said complaint. The person, partnership, or corporation so complained of shall have the right to appear at the place and time so fixed and show cause why an order should not be entered by the commission requiring such person, partnership, or corporation to cease and desist from the violation of the law so charged in said complaint. . . . The testimony in any such proceeding shall be reduced to writing and filed in the office of the commission. If upon such hearing the commission shall be of the opinion that the method of competition in question is FED. TRADE COMM. v. KLESNER. 151 145 Opinion of the Court. The Trade Commission Act was passed by Congress to prevent persons, partnerships or corporations from using unfair methods of competition in the commerce which Congress had the constitutional right to regulate. By § 4 of the Act, the commerce to be reached is defined as including not only commerce between the States, and with foreign nations and between the District of Columbia and any State or Territory or foreign nation, but also commerce within the District of Columbia. The statute is clear in its direction that the Commission shall prohibited by this Act, it shall make a report in writing in which it shall state its findings as to the facts, and shall issue and cause to be served on such person, partnership, or corporation an order requiring such person, partnership, or corporation to cease and desist fom using such method of competition. Until a transcript of the record in such hearing shall have been filed in a circuit court of appeals of the United States, as hereinafter provided, the commission may at any time, upon such notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any report or any order made or issued by it under this section. “ If such person, partnership, or corporation fails or neglects to obey such order of the commission while the same is in effect, the commission may apply to the circuit court of appeals of the United States, within any circuit where the method of competition in question was used or where such person, partnership, or corporation resides or carries on business, for the enforcement of its order, and shall certify and file with its application a transcript of the entire record in the proceeding, including all the testimony taken and the report and order of the commission. Upon such filing of the application and transcript the court shall cause notice thereof to be served upon such person, partnership, or corporation and thereupon shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to make and enter upon the pleadings, testimony, and proceedings set forth in such transcript a decree affirming, modifying, or setting aside the order of the commission. The findings of the commission as to the facts, if supported by testimony, shall be conclusive. If either party shall apply to the court for leave to adduce additional evidence, and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the 152 OCTOBER TERM, 1926. Opinion of the Court. 274U.S. make orders preventing persons engaged in the District from using the forbidden methods. Therefore the Commission was authorized to make the order which was made in this case. In § 9 of the Trade Commission Act, the Commission is given power to require by subpoena the attendance and testimony of witnesses and the production of documentary evidence relating to any matter under investigation. And this may be required from any place in the United States at any designated place of hearing, and in case of disobedience to a subpoena, the Commission may invoke the aid of any court of the United States in requiring such attendance and testimony. Any of the district courts of the United States within the jurisdiction of which such inquiry is carried on, may in case of contumacy or refusal to obey a commission, the court may order such additional evidence to be taken before the commission and to be adduced upon the hearing in such manner and upon such terms and conditions as to the court may seem proper. The commission may modify its findings as to the facts, or make new findings, by reason of the additional evidence so taken, and it shall file such modified or new findings, which, if supported by testimony, shall be conclusive, and its recommendations, if any, for the modification or setting aside of its original order, with the return of such additional evidence.) The judgment and decree of the court shall be final, except that the same shall be subject to review by the Supreme Court upon certiorari as provided in section two hundred and forty of the Judicial Code. . . . “ The jurisdiction of the circuit court of appeals of the United States to enforce, set aside, or modify orders of the commission shall be exclusive. “ Such proceeding in the circuit court of appeals shall be given precedence over other cases pending therein, and shall be in every way expedited. . . . “ Sec. 9. That for the purposes of this Act the commission, or its duly authorized agent or agents, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any documentary evidence of any corporation being investigated or proceeded against ; and the commission shall have power to require by subpoena the attendance and testimony of witnesses and the production of all FED. TRADE COMM. v. KLESNER. 153 145 Opinion of the Court. subpoena issue an order requiring the presence of the person summoned, and a failure to obey the order may be punished by the district court as a contempt thereof. Upon application of the Attorney General, at the request of the Commission, the district courts shall have jurisdiction to issue writs of mandamus commanding any person to comply with the provisions of this Act or any order of the Commission made in pursuance thereof. By § 61 of the Code of Laws for the District of Columbia, 31 Stat. 1199, the Supreme Court of the District is given the same powers and the same jurisdiction as district courts of the United States and is to be deemed a court of the United States, and shall exercise all the jurisdiction of one, and a special term of the court shall be a district court of the United States. The justices of the court are vested with the power and jurisdiction of judges such documentary evidence relating to any matter under investigation. Any member of the commission may sign subpoenas, and members and examiners of the commission may administer oaths and affirmations, examine witnesses, and receive evidence. “ Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpoena the commission may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of documentary evidence. “Any of the district courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any corporation or other person, issue an order requiring such corporation or other person to appear before the commission, or to produce documentary evidence if so ordered, or to give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof. “ Upon the application of the Attorney General of the United States, at the request of the commission, the district courts of the United States shall have jurisdiction to issue writs of mandamus commanding any person or corporation to comply with the provisions of this Act or any order of the commission made in pursuance thereof.” 154 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. of the district courts of the United States. Sections 62 and 84, Code of the District of Columbia, 1924. It follows that the Trade Commission could use the Supreme Court of the District to enforce the procedure needed on its part to take evidence and thus enable it to reach its conclusions, and in this could avail itself of the power of contempt of that court. It has been the evident intention of Congress that laws generally applicable to enforcement of what may be called federal law in the United States generally should have the same effect within the District of Columbia as elsewhere. For this purpose the courts of the District of Columbia are federal courts of the United States. Keller v. Potomac Electric Company, 261 U. S. 428, 442. They are part of the federal judicial system. In Benson v. Henkel, 198 U. S. 1, this Court held that the Supreme Court of the District of Columbia was a Court of the United States and that the District of Columbia was a district within the meaning of Revised Statutes, § 1014, providing for the apprehension and holding persons for trial before such court of the United States. Where the Judicial Code provides that no writ of injunction shall be granted by any court of the United States to stay proceedings of any court of a State, with certain exceptions, the District Court of Appeals has held that the statute applied to the Supreme Court of the District of Columbia. Hyattsville Building Assn. v. Bouick, 44 D. C. App. 408. See also, United States v. B. & 0. R. R., 26 D. C. App. 581; Arn-stein v. United States, 296 Fed. 946, 948. The question, therefore, which we have to answer is whether, when Congress gave the Commission power to make orders in the District of Columbia with the aid of the Supreme Court of the District in compelling the production of evidence by contempt or mandamus, it intended to leave the orders thus made, if defied, without any review or sanction by a reviewing court, though such FED. TRADE COMM. v. KLESNER. 155 145 Opinion of the Court. review and sanction are expressly provided everywhere throughout the United States except in the District. We think this most unlikely, and, therefore, it is our duty, if possible in reason, to find in the Trade Commission Act ground for inference that Congress intended to refer to and treat the Court of Appeals of the District as one of the circuit courts of appeals referred to in the Act, to review and enforce such orders. It is to be noted that the same question arises in the construction of the Clayton Act of October 15, 1914, c. 323, 38 Stat. 730. That Act applies, as this one does, to commerce in the District, as well as between States, and with foreign nations. By its second section it forbids difference in prices to purchasers in order to lessen competition. In the third section it makes it unlawful to lease or make and sell goods patented or unpatented or fix a price thereon with the condition that the lessee or purchaser shall not use the goods or wares of competitors, where such a provision shall lessen competition. By § 7, corporations are forbidden to acquire stock of another to lessen competition, and by § 8 there is a restriction upon interlocking directorates in two or more competing corporations applicable to banking associations and other corporations. Section 11 provides that authority to enforce compliance with the sections just referred to is vested in the Interstate Commerce Commission where applicable to common carriers, in the Federal Reserve Board where applicable to banks, and in the Federal Trade Commission where applicable to all the other characters of commerce. The orders of these bodies are to be made upon hearings similar to those provided for in the Federal Trade Commission Act, and the circuit courts of appeals are to review and enforce the orders. The existence of two such Acts itself enforces the inference that Congress thought that the term “ Circuit Court of Appeals ” was sufficient to include the appellate court of the District of Columbia. 156 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. The Court of Appeals of the District of Columbia was created by an Act of Congress approved February 9, 1893, 27 Stat. 434, which conferred upon it appellate jurisdiction over the Supreme Court of the District of Columbia. Section 7 of the Act provides that any party aggrieved by any final order, judgment or decree of the Supreme Court of the District, or of any justice thereof, may appeal therefrom to the Court of Appeals thereby created, which upon such appeal shall review such order, judgment or decree and affirm, reverse or modify the same as shall be just. This was a substitution of the Court of Appeals for the general term of the Supreme Court, which latter court was abolished by the Act. The parallelism between the Supreme Court of the District and the Court of Appeals of the District, on the one hand, and the district courts of the United States and the circuit courts of appeals, on the other, in the consideration and disposition of cases involving what among the States would be regarded as within federal jurisdiction, is complete. A question similar to the one we have here was presented in the case of the Steamer Coquitlam v. United States, 163 U. S. 346. The United States in that case brought a suit in admiralty for the forfeiture of the steamer Coquitlam, because of an alleged violation of the revenue laws of the United States, in the District Court of Alaska, and, a decree having been rendered for the United States, an appeal was prosecuted to the Circuit Court of Appeals for the Ninth Circuit. Under the 15th section of the Act creating the circuit courts of appeals, 26 Stat. 826, 830, the circuit courts of appeals in cases in which their judgments were made final by the Act, were given the same appellate jurisdiction by writ of error or .appeals to review the judgments, orders and decrees of the Supreme Courts of the several territories as by the Act they might have to review the judgments, orders, and FED. TRADE COMM. v. KLESNER. ‘ 157 145 Opinion of the Court. decrees of the district courts and circuit courts, and for that purpose the several territories were, by orders of the Supreme Court, to be made from time to time, to be assigned to particular circuits. 26 Stat. 826, 830. Now, in Alaska there was only one court, and it was called the District Court of Alaska, and it was contended that it was not a supreme court of the territory and, therefore, was not a court from which an appeal could be prosecuted to the Circuit Court of Appeals for the Ninth Circuit. By the Act of May 17, 1884, 23 Stat. 24, a civil government was provided for Alaska, to constitute a civil and judicial district, with the civil and judicial and criminal jurisdiction of district courts of the United States, and such other jurisdiction not inconsistent with the Act as might be established by law, and the general laws of Oregon, so far as the laws were applicable, were adopted. This Court held that, under the statutes, the Circuit Court of Appeals of the Ninth Circuit could not review the final judgments or decrees of the Alaska court in virtue of its appellate jurisdiction over the district and circuit courts mentioned in the Act of March 3, 1891, 26 Stat. 826, 830, but that, as Alaska was one of the territories of the United States and as the District Court established in Alaska was the court of last resort within the limits of the territory, it was in a very substantial sense the supreme court of that territory; that no reason could be suggested why a territory of the United States in which the court of last resort was called a supreme court should be assigned to some circuit established by Congress that did not apply with full force to the Territory of Alaska in which the court of last resort was designated as the District Court of Alaska. The Court, speaking by Mr. Justice Harlan, said (p. 352): “ Looking at the whole scope of the act of 1891, we do not doubt that Congress contemplated that the final 158 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. orders and decrees of the courts of last resort in the organized Territories of the United States—by whatever name those courts were designated in legislative enactments—should be reviewed by the proper Circuit Court of Appeals, leaving to this court the assignment of the respective Territories among the existing circuits.” We think we may use the same liberality of construction in this case. We find here a court which by acts of Congress is to be treated as a district court of the United States, and we find here a court of appeals which by the terms of its creation is exercising reviewing power over all federal cases proceeding from that district court of the United States by appeal or writ of error, so that it is exercising exactly the same function as the circuit courts of appeals do with respect to the district courts within their respective territorial jurisdictions in the other parts of the United States. The services of this district court of the United States in the District of Columbia are to be availed of under the Trade Commission Act when necessary in compelling evidence by the express words of the Act. We must conclude that Congress, in making its provision for the use of the circuit courts of appeals, in reviewing the Commission’s orders, intended to include within that description the Court of Appeals of the District of Columbia as the appellate tribunal to be charged with the same duty in the District. The law was to be enforced, and presumably with the same effectiveness, in the District of Columbia as elsewhere in the United States. We do not think that the cases of Swijt v. Hoover, 242 U. S. 107, and of Tefft, Weller & Company v. Munsuri, 222 U. S. 114, should lead us in this case to a different conclusion. They related to appeals direct to this Court in bankruptcy from a court in Porto Rico, and from the Supreme Court of the District respectively. With the FED. TRADE COMM. v. KLESNER. 159 145 McReynolds, J., dissenting. heavy burden upon this Court, every direct review imposed on it was naturally viewed with critical care, and when it was sought to enlarge the jurisdiction of this Court by strained construction to include review of the numerous and small claims from courts of bankruptcy in such jurisdictions, it is not strange that the attempt failed. More than that, in those cases the bankruptcy proceedings were judicial proceedings with judicial judgments which could be enforced even if not reviewed. They were not left in the air without any sanction against a defiant litigant, as would be the result in the present case, were the view we have taken not to prevail. The judgment of dismissal of the Court of Appeals of the District of Columbia is reversed and the cause remanded for further proceedings. Reversed. The separate opinion of Mr. Justice McReynolds. I think the judgment of the court below should be affirmed. .If the cause involved no more than interpretation of a doubtful provision in the statute, it hardly would be worth while to record personal views. But judicial legislation is a hateful thing and I am unwilling by acquiescence to give apparent assent to the practice. Possibly—probably, perhaps—if attention had been seasonably called to the matter Congress would have authorized the Court of Appeals for the District of Columbia to enforce orders of the Trade Commission. But the words of the enactment, which we must accept as deliberately chosen, give no such power; and I think this court ought not to interject what it can only suppose the lawmakers would have inserted if they had thought long enough. 160 OCTOBER TERM, 1926. Argument for Appellants. 274 U. S. FEDERAL TRADE COMMISSION et al. v. CLAIRE FURNACE COMPANY et al. APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. No. 1. Argued December 6, 1923; reargued November 24, 1925.— Decided April 18, 1927. 1. An order of the Federal Trade Commission requiring a corporation to submit reports concerning its business, under § 6 of the Federal Trade Commission Act, is enforcible by the Commission only by requesting the Attorney General to institute mandamus proceedings under § 9, or by supplying him with the facts necessary to enforce the forfeiture of $100 per day, prescribed by § 10 for continued failure to file such reports after notice. P. 170. 2. As the validity of such orders may be fully contested in such mandamus or forfeiture proceedings, if instituted in the exercise of his discretion by the Attorney General, these offer an adequate legal remedy to corporations resisting the orders as unconstitutional, and therefore a bill in equity to enjoin the Commission from taking steps to enforce such orders will not lie. P. 174. 3. In view of the purpose of the statute that questions of constitutionality involved in such orders of the Commission should be passed upon by the Attorney General before undertaking their enforcement by judicial proceedings instituted by him, a suit brought by corporations affected, against the Commission, to determine such questions should not be entertained even with consent of the parties. P. 174. 52 App. D. C. 202; 285 Fed. 936, reversed. Appeal from a decree of the Court of Appeals of the District of Columbia which affirmed a decree of the Supreme Court of the District, enjoining the Federal Trade Commission and its members from attempting to enforce orders made on the complainant corporations, commanding them to furnish monthly reports showing in detail the output, costs, prices, etc., in their business. Solicitor General Beck, with whom Messrs. W. H. Fuller and Adrien F. Busick were on the brief, for appellants on the first argument. FED. TRADE COMM. v. CLAIRE CO. 161 160 Argument for Appellants. Congress has power to compel the giving of information and production of documents in any inquiry concerning a subject matter over which it has jurisdiction to legislate. The Constitution conferred all powers proper for the exercise of each power expressly granted. Among the powers so granted is that to acquire information, and it is not necessary to establish in each instance that the information required is indispensable to legislative action. The specific character of the action contemplated by Congress need not be shown in order that information may be required. Information respecting prices may be required though no power to fix reasonable prices exists. Information required should be had at least as to articles of prime necessity. Congress can constitutionally authorize an administrative body to collect information respecting any subject over which it has legislative jurisdiction. Jurisdiction of Congress over interstate commerce and the extent of the power to require information: Commerce among the States includes the purchase and sale of commodities between citizens in different States. The power to regulate extends to all matters which may burden or restrain interstate commerce, even though not actually a part thereof. The power of Congress to require information respecting interstate commerce is broader than the power to regulate, and extends to ascertaining what, if any, burdens or restraints upon such commerce are threatened. The information called for by the questionnaires concerns interstate commerce itself, or matters so closely related thereto as to be necessary to an intelligent report upon conditions existing in such commerce, and may be lawfully required. The information is necessary to show whether the law of supply and demand operates. Each item required relates to subject matter upon which Congress may legislate. 5'5514°—28-11 162 OCTOBER TERM, 1926. Reargument for Appellants. 274U.S. Congress has the power to provide for the investigation of corporations and the compulsory making of reports by them, and for the publication of the facts for the purpose of applying the corrective force of public opinion to the practices of corporations. It has power to compel the giving of information and production of documents to show whether the laws which the Commission is charged with enforcing are being violated, and demand therefor falls within the visitorial power of Congress over corporations engaged in interstate commerce. The Federal Trade Commission Act authorized the Commission to require the information and reports specified in the questionnaires. The Commission’s action was within the text of the law; it was in harmony with the long interpretation of this and other Acts by the Government, and with the Congressional interpretation of the Trade Commission Act. The call for monthly reports was lawful. The demand for the information contained in the questionnaires in the manner and form made, does not violate the Fourth or Fifth Amendments to the Federal Constitution. Solicitor General Mitchell, with whom Messrs. W. H. Fuller and Adrien F. Busick were on a supplemental brief, for appellants on reargument. Obtaining information about their interstate business from corporations engaged in interstate commerce is an appropriate means of enabling Congress to regulate interstate commerce. The power to require such corporations to furnish information concerning their affairs can not be denied unless there be some specific provision of the Constitution restraining its exercise. The ultimate question in this case is whether the power is restrained by the Fourth Amendment, prohibiting unreasonable searches and seizures. It is not an unreason- FED. TRADE COMM. v. CLAIRE CO. 163 160 Argument for Appellees. able invasion of privacy to require from these corporations reports of their interstate business, although the information is not for use in any pending proceeding or in connection with pending legislation. Having power to require information respecting their interstate commerce business, Congress has power to require information respecting the business of these corporations not interstate commerce, where (1) the accounts are commingled or (2) their other operations have a direct bearing on their activities in interstate commerce. The Commission is given power by the terms of the Federal Trade Commission Act to require reports in the form demanded. Mr. Paul D. Cravath, with whom Mr. Hoyt A. Moore was on the brief, for appellees on the first argument. Congress has not conferred upon the Commission any such power as it seeks to exercise in requiring the information called for. The sole source of authority of the Commission is the Federal Trade Commission Act, which does not purpose to authorize the Commission to make a general investigation of an industry or intrastate business in any case. The construction by the Commission calls for unprecedented and unauthorized power. The orders of the Commission to the appellees exceed the power granted to it. The Act applies only to the interstate commerce of corporations. The Commission can not regulate prices. Investigations authorized must relate to the purposes of the Act. The Act does not authorize investigations of economic conditions. Congress could not grant to the Commission power to investigate the manufacturing activities of corporations which sell their output in interstate commerce. The power of Congress over interstate commerce does not extend to manufacturing or mining. Although the Commission may have investigatory power over such business 164 OCTOBER TERM, 1926. Reargument for Appellees. 274U.S. of the appellees as is interstate commerce, this does not give it such power over their other business. Neither Congress nor the Commission has any powef to require information on any matter over which it has no regulatory power. The inquiry of the Commission does not relate to interstate commerce. Enforcement of the demands of the Commission would violate rights secured to the appellees by the Fourth Amendment to the Constitution. Mr. Paul D. Cravath, with whom Messrs. Hoyt A. Moore and A. Arthur Jenkins were on a supplemental brief, for appellees on reargument. This case presents squarely the question whether the Commission has power to require corporations engaged in the manufacture of steel and iron products or in the production of coke to file with the Commission monthly reports giving the costs and sales prices of products manufactured by them and a vast amount of other information regarding their manufacturing operations and purely intrastate activities, simply because a part of their manufactured products is sold, and a part of the raw materials utilized at their plants is purchased, in States other than those in which those plants are located. Two or three of the appellees apparently do not purchase any of their raw materials or sell any of their manufactured products in interstate commerce. All the others sell some portion of their manufactured products, and most of them purchase or produce some portion of their raw materials, in States other than the States where their respective manufacturing plants are located. Whatever authority the Commission had for requiring the information must be found in the Act. The law laid down by this Court in Federal Trade Commission v. American Tobacco Co., 264 U. S. 298, and Federal Trade Commission v. Baltimore Grain Co., 267 FED. TRADE COMM. v. CLAIRE CO. 165 160 Opinion of the Court. U. S. 586, applies to the present case. The only periodical reports authorized are annual reports. The order is invalid because not limited to interstate comm,erce. The power of Congress under the Commerce Clause is limited to preserving freedom of commerce. Congress can not fix or regulate prices to be charged by manufacturers. The Fifth Amendment is involved. It appears to be the view of the Commission that the information, the power to secure which can be delegated by Congress, includes any information that in any manner may involve any subject over which Congress can legislate. The intermingling of intrastate and interstate transactions does not justify the demand of the Commission. Commingling of accounts does not expose them to Congressional investigation. The intrastate activities of the appellees have no bearing on interstate commerce. The examination of books to check the reports must be also properly limited. Profits or prices are not the concern of the Commission; nor is productive capacity and production. Manufacturing is not a public or common calling. The doctrine of Harriman v. Interstate Commerce Commission, 211 U. S. 407, applies here. On the appellant’s own argument as to the Fourth Amendment, its order violates that Amendment. Mr. Chief Justice Taft delivered the opinion of the Court. This was a bill in equity brought in the Supreme Court of the District of Columbia on behalf of twenty-two companies of Ohio, Pennsylvania, West Virginia, New York, Delaware, New Jersey and Maryland, in the coal, steel and related industries, to enjoin the Federal Trade Commission from enforcing or attempting to enforce orders issued by that Commission against the complainant com- 166 OCTOBER TERM, 1026. Opinion of the Court. 274U.S. panies, requiring them to furnish monthly reports of the cost of production, balance sheets, and other voluminous information in detail, upon a large variety of subjects relating to the business in which complainant corporations are engaged. The authority under which the Commission professed to act was expressed in the following resolution adopted by the Commission, December 15, 1919: “ Whereas at a hearing held by the Committee on Appropriations of the House of Representatives on August 25th, 1919, the Federal Trade Commission was requested to suggest what it might undertake to do to reduce the high cost of living; and “Whereas the commission recommended to the said committee that it would be desirable to obtain and publish from time to time current information with respect to ‘the production, ownership, manufacture, storage, and distribution of foodstuffs, or other necessaries, and the products or by-products arising from or in connection with the preparation and manufacture thereof, together with figures of cost and wholesale and retail prices/ and particularly with respect to various basic industries, including coal and steel; and “ Whereas the said committee recommended an appropriation of $150,000 for the current fiscal year for the said commission in consequence of this recommendation and the same was duly made by authority of Congress, and made available on November 4, 1919: Now, therefore, be it “Resolved, That the Federal Trade Commission by virtue of section 6, paragraphs (a) and (b), of the Federal Trade Commission act, proceed to the collection and publication of such information with respect to such basic industries as the said appropriation and other funds at its command will permit: And be it further FED. TRADE COMM. v. CLAIRE CO. 167 160 Opinion of the Court. “ Resolved, That such action be started as soon as possible with respect to the coal industry and the steel industry, including in the latter closely related industries such as the iron ore, coke, and pig iron industries.” Purporting to proceed under this resolution, the Commission served separate notices upon the twenty-two appellees and many other corporations, engaged in mining, manufacturing, buying and selling coal, coke, ore, iron and steel products, etc., which directed them to furnish monthly reports in the form prescribed showing output of every kind, itemized cost of production, sale prices, contract prices, capacity, buying orders, depreciation, general administration and selling expenses, income, general balance sheet, etc., etc. Elaborate questionnaires, accompanying these orders, asked for answers revealing the intimate details of every department of the business, both intrastate and interstate. A summary of these, printed in the margin, sufficiently indicates their contents.* The concluding paragraph of the notice de- * Summary of interrogatories submitted by Federal Trade Commission to sundry corporations with direction to report monthly. (1) Quantities of 44 specified products produced. (2) Costs of 25 products from each battery of ovens, furnace, mill or other unit of operation. (3) Sales prices (“ actual realization f. o. b. mill after deduction of freight allowance ”) of 19 products, separately as to domestic and export shipments. (4) Contract prices (“base price less freight allowance”) named in orders for future delivery of 19 products, separately as to domestic and export shipments. (5) Capacity of ovenS, furnaces, works and mills in respect of 18 products. (6) Orders booked during each month and orders unfilled at the end of each month respecting 19 products. (7) Depreciation and general administrative and selling expenses allocated to 17 products, details of income from other sources, balance of net income transferred to surplus, with details of interest, 168 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. dared—“The purpose of this report is to compile in combined or consolidated form the data received from individual companies and to issue currently in such form accurate and comprehensive information regarding changes in the conditions of the industry both for the benefit of the industry and of the public.” Appellees did not comply with the inquiries in the notices but filed in the Supreme Court, District of Columbia, their joint bill against the Commission and its members, wherein they set out its action, alleged that it had exceeded its powers, and asked that all defendants be restrained “ from the enforcement of said orders, and from requiring answers to said questionnaires, and from taking any proceedings whatever with reference to the enforcement of compliance with said orders and answers to said questionnaires;” also for general relief. Without questioning the appellees’ right to seek relief by injunction, the appellants answered, admitted issuing of the orders, claimed authority therefor under §§ 6, and 9, Federal Trade Commission Act, September 26, 1914, c. 311, 38 Stat. 717, 721, 722, and further alleged and said— That the reports were required “ for all the purposes and under all the authority granted to them by law, including the purpose of gathering and compiling said information for publication and the consequent regulation of the interstate commerce of said complainants resulting from such publication of the true trade facts as to all of the business of complainants and of others en- rentals, cash discounts on purchases, royalties, dividends from affiliated or subsidiary companies, income from outside investments, and details of deductions from net income, including federal income and excess profit taxes, interest on bonds and notes, sinking fund provisions, discount on bonds and notes, losses on investments, amortization, losses on contracts, reorganization expenses, fire losses, donations, adjustment of property value and bonuses to officials. FED. TRADE COMM. v. CLAIRE CO. 169 160 Opinion of the Court. gaged in commerce in those commodities, and including the purpose of making reports to Congress and of recommending additional legislation to Congress. “ Defendants allege that all of the information to be acquired through the answers to said questionnaires is necessary and has direct relation to regulation and control of the interstate and foreign commerce of complainants and others answering said questionnaires, and is sought by the Federal Trade Commission for the purpose and in necessary aid of the regulation of said commerce. “ Defendants admit that no complaint has been filed or is now pending before the commission against any of complainants for a violation of § 5 of the trade commission act, but aver that the activities sought to be enjoined were instituted and are sought to be carried on under the provisions of said trade commission act. “ That one purpose of the requirements made in this case is the gathering of complete information, which is necessary in the proper regulation through publicity of the true facts as to the interstate business of the industry. That such purpose can not be properly performed without the acquisition of the complete facts. That the acquisition of the complete information and facts required will effectuate such purpose, in that the dissemination of such complete trade information will tend to prevent undue fluctuations and panic markets based on ignorance of the true facts, or based on incomplete and partial or self-interested information published only whenever and in so far as it may serve those self-interested who may publish it. That regulation by publicity is, and for a long time has been, recognized as one form of regulation which has been generally conceded to be fair and equitable to all concerned. That unless such regulation through public dissemination of the full and complete facts is carried out, other more drastic forms of attempted regulations without proper information may follow. 170 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. “ That in addition to the regulatory effect, in and of itself, of such public dissemination of the complete facts, it is one of the purposes of these activities to gather and convey to Congress, for its information in the performance of its duties, the full and complete facts, in order that instead of legislating on incomplete or partial or prejudiced information, it may have the full facts before it. That if any regulatory effect upon intrastate commerce flows from such publicity, it is merely incidental to the general regulation of interstate commerce, as to which the power of Congress is complete.” The cause was heard upon motion to strike the answer from the files because it contained no adequate defense. The trial court concluded that, as the propounded questions were not limited to interstate commerce, but asked also for detailed information concerning mining, manufacture and intrastate commerce, they were beyond the Commission’s authority. “ The power claimed by the Commission is vast and unprecedented. The mere fact that a corporation engaged in mining ships a portion of its product to other States does not subject its business of production or its intrastate commerce to the powers of Congress.” It accordingly held the answer insufficient and, as defendants declined to amend, granted the injunction as prayed. The Court of Appeals affirmed this action. 285 Fed. 936; 52 App. D. C. 202. The cause, here by appeal, has been twice argued. Appellees were not charged with practicing unfair methods of competition (*§ 5, Act of September 26, 1914) or violating the Clayton Act (c. 323, §§ 2, 3, 7, 8, 38 Stat. 730, 731, 732). Orders under such charges can be enforced only through a Circuit Court of Appeals (§11, Clayton Act; § 5, Federal Trade Commission Act). The action of the comriiission here challenged must be justified, if at all, under the paragraphs of §§ 6 and 9, Act of September 26, 1914, copied below, and the only FED. TRADE COMM. v. CLAIRE CO. 171 160 Opinion of the Court. methods prescribed for enforcing orders permitted by any of these paragraphs are specified in §§ 9 and 10. They are applications to the Attorney General to institute an action for mandamus, and proceedings by him to recover the prescribed penalties. “ Sec. 6. That the commission shall also have power— “(a) To gather and compile information concerning, and to investigate from time to time the organization, business, conduct, practices, and management of any corporation engaged in commerce, excepting banks and common carriers subject to the Act to regulate commerce, and its relation to other corporations and to individuals, associations, and partnerships. “(b) To require, by general or special orders, corporations engaged in commerce, excepting banks, and common carriers subject to the Act to regulate commerce, or any class of them, or any of them, respectively, to file with the commission in such form as the commission may prescribe annual or special, or both annual and special, reports or answers in writing to specific questions, furnishing to the commission such information as it may require as to the organization, business, conduct, practices, management, and relation to other corporations, partnerships, and individuals of the respective corporations filing such reports or answers in writing. Such reports and answers shall be made under oath, or otherwise, as the commission may prescribe, and shall be filed with the commission within such reasonable period as the commission may prescribe, unless additional time be granted in any case by the commission. “(f) To make public from time to time such portions of the information obtained by it hereunder, except trade secrets and names of customers, as it shall deem expedient in the public interest; and to make annual and special reports to the Congress and to submit therewith recom 172 OCTOBER TERM, 1926. Opinion of the Court. 274U.S. mendations for additional legislation; and to provide for the publication of its reports and decisions in such form and manner as may be best adapted for public information and use. “(g) From time to time to classify corporations and to make rules and regulations for the purpose of carrying out the provisions of this Act. “(h) To investigate, from time to time, trade conditions in and with foreign countries where associations, combinations, or practices of manufacturers, merchants, or traders, or other conditions, may affect the foreign trade of the United States, and to report to Congress thereon, with such recommendations as it deems advisable. . . . “ Sec. 9. That for the purposes of this Act the commission, or its duly authorized agent or agents, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any documentary evidence of any corporation being investigated or proceeded against; and the commission shall have power to require by subpoena the attendance and testimony of witnesses and the production of all such documentary evidence relating to any matter under investigation. Any member of the commission may sign subpoenas, and members and examiners of the commission may administer oaths and affirmations, examine witnesses, and receive evidence. “ Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpoena the commission may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of documentary evidence. . . , FED. TRADE COMM. v. CLAIRE CO. 173 160 Opinion of the Court. “ Upon the application of the Attorney General of the United States, at the request of the commission, the district courts of the United States shall have jurisdiction to issue writs of mandamus commanding any person or corporation to comply with the provisions of this Act or any order of the commission made in pursuance thereof. . . . “ Sec. 10. That any person who shall neglect or refuse to attend and testify, or to answer any lawful inquiry, or to produce documentary evidence, if in his power to do so, in obedience to the subpoena or lawful requirement of the commission, shall be guilty of an offense and upon conviction thereof by a court of competent jurisdiction shall be punished by a fine or not less than $1,000 nor more than $5,000, or by imprisonment for not more than one year, or by both such fine and imprisonment. . . . “ If any corporation required by this Act to file any annual or special report shall fail to do so within the time fixed by the commission for filing the same, and such failure shall continue for thirty days after notice of such default, the corporation shall forfeit to the United States the sum of $100 for each and every day of the continuance of such failure, which forfeiture shall be payable into the Treasury of the United States, and shall be recoverable in a civil suit in the name of the United States brought in the district where the corporation has its principal office or in any district in which it shall do business. It shall be the duty of the various district attorneys, under the direction of the Attorney General of the United States, to prosecute for the recovery of forfeitures. The costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States.” There was nothing which the Commission could have done to secure enforcement of the challenged orders except 174 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. to request the Attorney General to institute proceedings for a mandamus or supply him with the necessary facts for an action to enforce the incurred forfeitures. If, exercising his discretion, he had instituted either proceeding the defendant therein would have been fully heard and could have adequately and effectively presented every ground of objection sought to be presented now. Consequently, the trial court should have refused to entertain the bill in equity for an injunction. We think that the consent of the parties was not enough to justify the court in considering the fundamental question that has been twice argued before us. It was intended by Congress in providing this method of enforcing the orders of the Trade Commission to impose upon the Attorney General the duty of examining the scope and propriety of the orders, and of sifting out of the mass of inquiries issued what in his judgment was pertinent and lawful before asking the Court to adjudge forfeitures for failure to give the great amount of information required or to issue a mandamus against those whom the orders affected and who refused to comply. The wide scope and variety of the questions, answers to which are asked in these orders, show the wisdom of requiring the chief law officer of the Government to exercise a sound discretion in designating the inquiries to enforce which he shall feel justified in invoking the action of the court. In a case like this, the exercise of this discretion will greatly relieve the court and may save it much unnecessary labor and discussion. The purpose of Congress in this requirement is plain, and we do not think that the court below should have dispensed with such assistance. Until the Attorney General acts, the defendants can not suffer, and when he does act, they can promptly answer and have full opportunity to contest the legality of any prejudicial proceeding against them. That right being adequate, they were not in a position to ask relief by injunction. The bill should have been dismissed for want of equity. KADOW v. PAUL. 175 160 Syllabus. This conclusion leads to a reversal of the decree of the District Court of Appeals and a remanding of the case to the Supreme Court of the District with direction to dismiss the bill. D „ t Reversed. Mr. Justice Sutherland and Mr. Justice Butler took no part in the consideration or decision of this case. The separate opinion of Mr. Justice McReynolds. I think the decree below should be affirmed—the Commission went beyond any power granted by Congress. This appeal was taken four years ago. Nearly seven years have passed since the cause began—June 12, 1920. Able counsel have argued it twice before us, but none suggested that the trial court erred in failing to dismiss the bill because there was an adequate remedy at law. Under well-settled doctrine such a defense may be waived by failure promptly to advance it. Reynes v. Dumont, 130 U. S. 354, 395; Singer Sewing Machine Co. n. Benedict, 229 U. S. 481, 484; American Mills Co. v. American Surety Co., 260 U. S. 360, 363. In my view it is now much too late for this court first to set up and then maintain the defense of lack of jurisdiction in the trial court, and I cannot acquiesce in the disposition of the cause upon that instable ground. The real issue should be met and determined. KADOW et al. v. PAUL et al. COMMISSIONERS. ERROR TO THE SUPREME COURT OF THE STATE OF WASHINGTON. No. 241. Argued March 16, 1927.—Decided April 18, 1927. 1. Section 4439-6 of the Laws of Washington, 1923, which provides a supplemental assessment on the lands within drainage districts to make up any deficiency resulting from the elimination or avoidance of any original assessment, does not intend that the assess 176 OCTOBER TERM, 1926. Opinion of the Court. 274U.S. ment of any land owner may thus be increased beyond the benefits derived by him from the improvement. P. 180. 2. Where part of the land in a special improvement district fails to pay its assessment and is appropriated and sold, any deficit thus arising may constitutionally be met by additional assessments on the lands of the district, provided the law operates uniformly as against all parts of it and the assessments of the respective land owners are not made to exceed the benefits they receive from the improvement. P. 181. 134 Wash. 539, affirmed. Error to a decree of the Supreme Court of Washington which affirmed a decree dismissing the petition in a suit brought by a number of the owners of land within a drainage district to restrain the making of the improvement and the issuance of bonds to pay for it. Mr. Homer D. Angell, with whom Mr. Henry Crass was on the brief, for plaintiffs in error. Mr. A. L. Miller, with whom Mr. Charles P. Swindler was on the brief, for defendants in error. Mr. Chief Justice Taft delivered the opinion of the Court. This is a writ of error to a decree of the Supreme Court of Washington. The original action was brought in the Superior Court of Clarke County, of that State, to have the proceedings in the organization of Diking Improvement District No. 3 of that county declared void, because certain portions of the statute under which the district was formed were unconstitutional, and to restrain the defendants from taking any steps looking to the construction of the proposed improvement or the sale by the county of bonds to finance it. After a trial on the merits, the trial court dismissed the petition, and an appeal was taken to the Supreme Court of the State, where the KADOW v. PAUL. 177 175 Opinion of the Court. decree of the trial court was affirmed. The proposed improvement was sought to be made under Chapter VI, Title XXVII, Rem. Comp. Stat., as amended by c. 46 of the Laws of 1923. This law, by §§ 4407, 4408, 4410, 4411, 4412, 4414, 4415, 4416, 4422, 4435-1, makes provision for the establishment of a diking district initiated by a petition addressed to the Board of County Commissioners of the county in which the improvement is located, signed by certain owners of property to be benefited, the petition to set forth with reasonable certainty the location, route and terminal of the dike. Thereafter, the usual provisions are made for the giving of notice, the hearing upon the question of the wisdom and public benefit of the improvement, an estimate of the damage to each landowner which may be done by the improvement, and also of the benefits it will effect for each, and the total number of acres that will be benefited. The county commissioners are to have the aid of the county engineer. The proposed improvement is to be approved by the state Reclamation Board. Full provision is made for hearings at which the damages and the benefits shall be determined and apportioned to the various landowners and for appeals to a court in such determinations. A board of supervisors of the district are elected, who attend to the construction of the improvement. The cost of the improvement is to be paid by assessment upon the property benefited, and all the lands included within the boundaries of the district, and assessed for the improvement, are to remain liable for the costs of the improvement until the same are fully paid. One permitted method of meeting the cost is by bonds. These are not to be obligations of the county, though they are issued by it. The object of this particular improvement was to reclaim lands on the east bank of the Columbia River, 55514°—28-12 178 OCTOBER TERM, 1926. Opinion of the Court. 274U.S. which were swampy and subject to overflow at times of high water. It also had for its purpose the draining of Lake Shillapoo. The first petition covered 6,500 acres. After the organization of the district had proceeded to the point where bonds were ready to be sold, it was permitted to remain dormant for three years, when a second petition was filed with the County Commissioners, and thereafter the district was regularly established, comprising 5,100 acres of land. It was determined that the project should be financed by the issuing of bonds to run for fifteen years. The commissioners advertised for the letting of the contract for the improvement and for the sale of the bonds. On the day before the date set, the plaintiffs in error began the present action. In the state court there were may objections to the validity of the proceedings, and all of them were decided against the plaintiffs. The counsel for plaintiffs in error in this Court concede that the only point which they can press here grows out of an amendment to the Diking Law, § 4439-6 of Session Laws of Washington for 1923, pages 128, 129, with reference to reassessments. It reads as follows: “ If upon the foreclosure of the assessment upon any property the same shall not sell for enough to pay the assessment against it, or if any property assessed was not subject to assessment, or if any assessment made shall have been eliminated by foreclosure of a tax lien or made void in any other manner, the board of county commissioners shall cause a supplemental assessment to be made on the property benefited by the improvement, including property upon which any assessment shall have been so eliminated or made void, and against the county, cities and towns chargeable therewith in the manner provided for the original assessment, to cover the deficiency so caused in the original assessment.” The italicized words were put in by the amendment in 1923. It is argued for plaintiffs in error that by this statute it is attempted to give power to the county officers, upon KADOW v. PAUL. 179 175 Opinion of the Court. the foreclosure of the assessment upon any property, to reassess the deficit upon the remaining lands in the district, and that this permits them to ignore the original apportionment and to reassess lands within the district for the remainder of the cost of the improvement, the benefit of which inures to other lands in the district; that this violates the principle that assessments must be apportioned in accordance with the benefits received, and is not due process of law. It is said that this complaint is particularly pertinent to the case at bar, because a large area of the diking district involved comprises the bottom of Shillapoo Lake and contiguous low lands bordering it, the value of which is nothing at the present time, and the value of which may continue to be nothing after the system of improvement is established, for the reason that it has not been ascertained that the bed of the lake and the low lands surrounding it are of such composition as to permit their use for agricultural purposes even after they are drained; that, if such lands prove valueless, the assessment charges against the same will not be paid; and by the reassessment provision the cost thereof will be reassessed against the remaining land in the district, which will increase the cost to such lands far in excess of the benefits received. In answering the objection that the condition feared has not yet arisen, is premature and may never arise and that such owners can apply for relief when conditions arise making it necessary, it is said that the bonds in question, the issuing of which the plaintiffs in error are seeking to have enjoined, are to be sold under the provisions of this law with the reassessment feature as a part thereof, and that they become at once a cloud upon the title of plaintiffs, make it unmarketable, and to that extent tend to confiscate their property and work a taking without due process of law. It is said that if the reassessment feature violates the Federal Constitution, a court of equity should afford relief at the outset to the land owners within the district. 180 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. The Diking Act specifically provides, § 4421, Session Laws of Washington for 1923, page 114, that the cost of the improvement shall be paid by assessment upon the property benefited, said assessment to be levied and apportioned as thereinafter prescribed. In Foster v. Commissioners of Cowlitz County, 100 Wash. 502, the Supreme Court of the State, in discussing a similar objection under this act though it has since been amended in one respect, used this language: “ In so far as the question of due process in the charging of the cost of the improvement to the property benefited thereby is concerned, counsel’s contention is also untenable. Owners of property within the district are given notice and opportunity to be heard upon the question of the creation of the district and the construction of the improvement. When it comes to charging the cost of the improvement against the several tracts of land within the district, such charge must be ‘in proportion to the benefits accruing thereto,’ and we think the statute also means that no tract of land can be charged in excess of the benefits accruing thereto. Owners of the land within the district to be charged with any portion of the cost of the improvement are given notice and opportunity to be heard upon the question of benefits and the apportionment of the charge to be made therefor against the several tracts. Not until all this is done is the assessment finally levied.” It is said that this language of the Washington court can not now be regarded as a limitation to benefits of assessments against any particular lot of land because of the amendment of 1923, already referred to, by which the supplemental assessments may include deficits in the total assessments occasioned by elimination or voiding of previous assessments on the other lands in the district. It seems clear to us that there is nothing in this amendment which changes the rule of construction of the statute as laid down by the Supreme Court in the Foster case, TIMKEN CO. v. PENNA. R. R. CO. 181 175 Syllabus. imposing a limitation in favor of the assessment payers against any supplemental assessment that should exceed the benefits conferred on each one by the improvement. Supplemental assessments, in providing for the payment for such improvements, are recognized as a legitimate part of the proceeding necessary to raise the money and to pay bonds issued to meet the cost; and if, in the process of collection, it shall appear that some of the assessed land fails to pay the assessment and is appropriated and sold, the distribution of the deficit thus arising, to be included in another assessment, is only meeting the to be expected cost of the improvement. When the operation of the law works uniformly as against all parts of the assessment district, and results in a higher cost of the improvement, and an increased assessment on all the owners of land who have paid, it violates no constitutional right of theirs as long as their benefits continue respectively to exceed their individual assessments. Orr v. Allen, 248 U. S. 35; Orr v. Allen, 245 Fed. 486, 498; Norris v. Montezuma Valley Irrigation District, 248 Fed. 369, 373; Hagar v. Reclamation District, 111 U. S. 701; Fallbrook Irrigation District v. Bradley, 164 U. S. 112. Affirmed. TIMKEN ROLLER BEARING COMPANY v. PENNSYLVANIA RAILROAD COMPANY. GOODBODY, RECEIVER, v. PENNSYLVANIA RAILROAD COMPANY. ERROR TO TSE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO. Nos. 168, 178. Argued February 25, 1927.—Decided April 18, 1927. 1. An action against a railroad for the value of switching service performed by a shipper who did so at the railroad’s request during a railroad strike and also paid the railroad tariff charges covering the same service, is within the jurisdiction of the District Court 182 OCTOBER TERM, 1026. Counsel for Parties. 274 U.S. where diversity of citizenship and jurisdictional amount are present; and the question whether an administrative decision by the Interstate Commerce Commission is prerequisite to the plaintiff’s cause of action, is a question of the merits. P. 185. 2. Under Jud. Code § 238, a judgment of the District Court dismissing a case within its power to decide, upon a decision of the merits, was not reviewable directly by this Court though erroneously styled a dismissal “ for want of jurisdiction.” P. 185. 3. By the Act of September 14, 1922 (repealed by Act of February 13, 1925) a writ of error from this Court to the District Court was transferrable to the Circuit Court of Appeals when erroneously allowed under Jud. Code § 238 to a judgment of dismissal on the merits properly reviewable in the latter court. P. 186. 4. The provision of the Act of February 13, 1925, § 14, that it shall not affect cases “ pending in the Supreme Court ” on its effective date (three months from its approval) applies to a case erroneously lodged in this Court under Jud. Code § 238, which should have gone to the Circuit Court of Appeals, and imposes the duty of transferring it to that court under the Act of September 14, 19^2. P. 187. 5. A writ of error from this Court, issued in due form by a judge having authority to issue such writs, followed by due execution of the writ and lodgment of the record here, is to be regarded as a case “ pending ” in this Court from the allowance and issuance of the writ, even though the writ was allowed and issued erroneously. P. 188. Actions to recover the value of switching service, brought in an Ohio state court and removed, on the ground of diversity of citizenship, to the District Court, where they were dismissed for supposed want of jurisdiction. Orders made at this term dismissing the writs of error are now set aside and the causes are transferred to the Circuit Court of Appeals. Messrs. Luther Day, Rujus S. Day, and Donald W. Kling for plaintiffs in error, submitted. Mr. Andrew P. Martin, with whom Messrs. Andrew Squire and Thomas M. Kirby were on the briefs, for defendant in error. TIMKEN CO. v. PENNA. R. R. CO. 183 181 Opinion of the Court. Mr. Chief Justice Taft delivered the opinion of the Court. These two cases are exactly alike, and the same disposition will be made of them. They were dismissed at this term for lack of jurisdiction, as follows: “ Dismissed for lack of jurisdiction in this Court on the authority of Transportes Maritimes Do Estado v. Almeida, 265 U. S. 104, 105, and Oliver American Trading Company v. Government of the United States of Mexico, 264 U. S. 440, 442.” This is a motion to set aside the dismissals and to substitute therefor orders transferring them to the Circuit Court of Appeals for the Sixth Circuit. The Timken Roller Bearing Company is a corporation of Ohio engaged in the business of making roller bearings and other steel products, with its principal place of business in Canton, Stark County, Ohio. The Pennsylvania Railroad is a corporation of Pennsylvania and a common carrier engaged in Ohio, and carried freight for the Timken Company. The Timken Company sued the Pennsylvania Company, averring the following facts: On April 10, 1920, the yard employees of the Pennsylvania Company struck. That Company notified the Timken Company that it would be unable to switch freight cars for it from the Pennsylvania’s interchange tracks to the customary delivery of the Timken plant at Canton, Ohio. The Pennsylvania Company then provided the Timken Company with a yard locomotive, and from April 13, 1920, to about September 30, 1920, the Timken Company, with the knowledge and consent, and at the request of the Pennsylvania Company, did the switching service itself. The Pennsylvania Company made to the Timken Company its customary charges for such switching service at its regular freight rates, which the Timken Company paid. During that period the Timken Company switched 1640 freight cars for the Pennsylvania Company, the 184 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. reasonable value of which service was $6,534.61. This amount was included in the line haul freight charges paid by the Timken Company to the Pennsylvania Company. The Pennsylvania Company was thus unjustly enriched in the amount above stated, and the Pennsylvania Company owed to the Timken Company the reasonable value of the service as stated. The suit of the Timken Company was brought in the Common Pleas Court of Cuyahoga County, Ohio, and removed by the Pennsylvania Company, on the ground of diverse citizenship, to the United States District Court for the Northern District of Ohio. In that court the Pennsylvania Company filed a motion to dismiss for lack of jurisdiction, on the grounds: (a) That the matters complained of in the plaintiff’s petition essentially involved the making of a rate, as to which the District Court had no power; (b) The subject affected the reasonableness of rates and the reasonableness of a practice in interstate commerce, which were administrative questions, confided primarily to the Interstate Commerce Commission, and there was no allegation in the plaintiff’s petition that the Interstate Commerce Commission had prescribed any rule, rate or practice which would regulate, control or govern the rights or obligations of the plaintiff and defendant in the matter complained of; (c) That to compensate the plaintiff for the expense of the switching service set forth in plaintiff’s petition would be tantamount to giving it a rebate, contrary to law. e The motion to dismiss was sustained by the District Court on the ground that the question presented by the plaintiff’s petition was an administrative and not a judicial question and that exclusive jurisdiction to hear and determine the matters complained of was vested in the Interstate Commerce Commission. The District Court TIMKEN CO. v. PENNA. R. R. CO. 185 181 Opinion of the Court. therefore dismissed the petition solely for want of jurisdiction, and, under the provisions of § 238 of the Judicial Code of the United States as it stood at the time, January 30, 1925: “Appeals and writs of error may be taken from the District Courts, including the United States District Court for Hawaii, direct to the Supreme Court in the following cases: In any case in which the jurisdiction of the Court is in issue, in which case the question of jurisdiction alone shall be certified to the .Supreme Court from the court below for decision. . . . ,” it made the following certificate: “ This Court by its final order dismissed the suit solely for want of jurisdiction. “ This certificate is made conformably to Judicial Code, Section 238, and the opinion filed herein is made a part of the record and will be certified and sent up as a part of the proceedings, together with this certificate.” Thereupon a writ of error from this Court to the District Court was allowed by the District Judge. When the case was argued here in open court, this Court ordered the dismissal of the writ of error as above, for the reason that the question of jurisdiction passed on by the District Court in this case was not such a question as was covered by § 238. As interpreted by repeated .decisions of the Court, such a question is in issue only when the District Court’s power to hear and determine the cause as defined and limited by the Constitution or statutes of the United States is in controversy, and, where a District Court is vested with jurisdiction of a cause, as where diversity of citizenship exists, and the matter in controversy is of the requisite value, the question whether it has the power to afford the plaintiff a particular remedy does not present a jurisdictional issue. Smith v. Apple, 264 U. S. 274, 278; Oliver Trading Company n. Mexico, 264 U. S. 440, 442; Transportes Maritimes Do Estado 186 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. v. Almeida, 265 U. S. 104, 105. In this case there was no question about the jurisdiction of the Court, for there was diverse citizenship and the value of the matter in controversy was of requisite amount. The real question was whether, in the absence of an administrative decision by the Interstate Commerce Commission, the plaintiff had a cause, of action. See Great Northern Ry. Co. v. Merchants Elevator Co., 259 U. S. 285. It went to the merits and not to the jurisdiction, and therefore this Court had no jurisdiction by writ of error under § 238 to consider the case. The issue now made is whether this Court made the proper disposition of the cause by dismissing it, in view of the amendment by Act of Congress of September 14, 1922, to § 238 of the Judicial Code, called § 238 (a), c. 305, 42 Stat. 837, as follows: “ If an appeal or writ of error has been or shall be taken to, or issued out of, any circuit court of appeals in a case wherein such appeal or writ of error should have been taken to or issued out of the Supreme Court; or if an appeal or writ of error has been or shall be taken to, or issued out of, the Supreme Court in a case wherein such appeal or writ of error should have been taken to, or issued out of a circuit court of appeals, such appeal or writ of error shall not for such reason be dismissed, but shall be transferred to the proper court, which shall thereupon be possessed of the same and shall proceed to the determination thereof, with the same force and effect as if such appeal or writ of error had been duly taken to, or issued out of, the court to which it is so transferred.” There is no doubt that under this section, if it applies to the present case, the motion to dismiss should not have been granted as it was, but the case should have been transferred to the Circuit Court of Appeals for a review of the issue on the merits as to the cause of action set up by the Timken Company in its petition. TIMKEN CO. v. PENNA. R. R. CO. 187 181 Opinion of the Court. The motion now made to set aside the dismissal and enter an order of transfer is resisted by the attorneys for the Pennsylvania Company, on the ground that § 238 (a) does not now apply to the present case. This suit was filed in the CoAmon Pleas Court of Cuyahoga County on May 31, 1924, and was removed to the United States District Court for the Northern District of Ohio June 30, 1924, and upon the defendant’s motion was dismissed by the District Court for lack of jurisdiction, the judge’s certificate to that effect being filed January 30, 1925. The writ of error was allowed by the District Court on April 6, 1925, was issued on that date and served upon the defendant in error April 18, 1925—all before the taking effect of the Act of February, 1925, on May 13, 1925. The return on the writ of error was transmitted by the Clerk of the District Court on July 3, 1925, the transcript of record being filed on July 13, 1925. The Act of September 14, 1922, § 238 (a) was expressly repealed by the Act of February 13, 1925, § 13, 43 Stat. 942. Section 14 provides that the Act “ shall take effect three months after its approval, but shall not affect cases then pending in the Supreme Court, nor shall it affect the right to a review or the mode or time for exercising the same as respects any judgment or decree entered prior to the date when it takes effect.” The defendant contends that § 14 can not be construed to continue the effect of § 238 (a) of the Act of September 22, 1922, because § 14^only saves cases then pending in the Supreme Court; that, as this Court has now found it had no jurisdiction of the writ of error issued by this Court to the District Court, it can not be said that it was a case pending in this Court, and therefore it did not come within the saving clause and the order dismissing the case for lack of jurisdiction must stand. We think that this is much too narrow a construction of the saving provision of § 14. A writ of error duly issued by a judge having authority to issue writs of error from this Court to the District 188 OCTOBER TERM, 1926. Syllabus. 274 U. S. Court of the United States, in a case there pending, even though the writ of error is erroneously issued, is, when the writ is executed and the record brought here, to be regarded as having been a case pending in this Court from the allowance and issuing of the writ of error, and as then removed from the control and jurisdiction of the District Court—and to continue as such for the purposes of § 14 until the writ of error is dismissed. The effect of § 14, therefore, is to impose on this Court the duty of granting the transfer to the Circuit Court of Appeals if that is the court, as it is, to which this case should have been taken on error. The previous dismissal of the case is set aside and the transfer of the case to the Circuit Court of Appeals for the Sixth Circuit is ordered. A similar order will be made in the case of Goodbody V. Pennsylvania Company, No. 178. Dismissals set aside, and cases transferred. ROAD IMPROVEMENT DISTRICT NO. 1 OF FRANKLIN COUNTY, ARKANSAS, et al. v. MISSOURI PACIFIC RAILROAD COMPANY. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 38. Argued April 19, 1926.—Decided April 18, 1927. 1. A legislative confirmation of a special assessment cures irregularities but not constitutional infirmities. P. 191. 2. Concurrent findings of two courts below of facts showing a road improvement assessment to be arbitrary and unreasonably discriminatory should be accepted by this Court unless clearly erroneous. P. 191. 3. An assessment against a railroad based on real property and also its rolling stock and other personal property is unreasonably discriminatory when other assessments for the same improvement are based on real property alone. P. 192. ROAD DIST. v. MO. PAC. R. R. CO. 189 188 Opinion of the Court. 4. Testimony that the assessors fixed the benefits to the railroad on a * mileage basis regardless of area, and as to other property proceeded solely with regard to area, is of no avail after a legislative adoption of the assessments, where the modes in which the assessors arrived at the amounts assessed were not shown on the assessment roll or communicated to the legislature. P. 192. 5. That loss of local traffic to a railroad usually results when a hard-surface road adapted to use by motor-driven vehicles is constructed practically parallel to its line, is of common knowledge. P. 194. 6. The evidence shows that an increase in traffic and revenue of the railroad, as respects freight moving in car-load lots and passengers travelling considerable distances, may reasonably be expected from the proposed road improvement, greater than the loss in local traffic, but that the assessment far exceeds such anticipated benefit and is arbitrary and violative of the Due Process Clause. P. 194. 7. Where an excessive special assessment was enjoined absolutely, but the evidence showed that some benefit would accrue, the court modified the decree so that a new assessment not exceeding an amount stated, might be imposed by the board of assessors empowered by the state law to revise such assessments. P. 194. 2 F. (2d) 340, modified and affirmed. Appeal from a decree of the Circuit Court of Appeals which affirmed a decree of the District Court setting aside, as arbitrary and discriminatory, a special assessment of benefits against the Railroad, made to help defray the cost of a road improvement in Arkansas. Mr. Dave Partain, with whom Messrs. G. C. Carter and Heartsil Ragon were on the brief, for appellants. Mr. Thomas B. Pryor, with whom Mr. Edward J. White was on the brief, for appellee. Mr. Justice Van Devanter delivered the opinion of the Court. This is a suit to annul an assessment of benefits accruing to a railroad from the improvement of a public road in Franklin County, Arkansas. 190 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. The improvement was undertaken by a road, district created for the purpose by an act of the state legislature directing that the cost be distributed over the lands, railroads and other real property within the district, in the form of special taxes measured by benefits received. Act 588, Special Road Acts 1919. The benefits were to be assessed by the district’s assessors; and any owner aggrieved by their action was to have a right for twenty days to sue in a court of competent jurisdiction to set aside the assessment against his property. Otherwise it was to be “ incontestable either at law or in equity.” The assessors originally assessed the benefits to the railroad at $54,062.00; and the railroad company in due time brought this suit to annul that assessment—on the grounds, among others, that it was plainly arbitrary and unreasonably discriminatory and therefore in violation of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States. While the suit was pending the state legislature confirmed the assessments, specifically including that against the railroad, and authorized additional assessments, to be made conformably to the first act, to meet the cost of proposed changes in the width of the road-bed and in other features of the improvement. Act 626, Special Acts 1921. The proposed changes in the plans were made and additional assessments ensued. In this way the total assessment against the railroad came to be $75,686.00. The legislation passed an act confirming and approving the additional assessments, again specifically including that against the railroad. Act 109, Special Acts 1923. In supplementary bills, filed by the court’s leave, the plaintiff set forth the additional assessment and the legislative confirmations, and challenged their validity on the same grounds that were advanced against the original assessment. ROAD DIST. v. MO. PAC. R. R. CO. 191 188 Opinion of the Court. On the hearing much evidence was produced; and the District Court found that the assessment against the railroad was plainly arbitrary and unreasonably discriminatory, and on that ground entered a decree setting it aside and enjoining the defendants from attempting to collect any tax based thereon. The Circuit Court of Appeals concurred in the finding and affirmed the decree. 2 F. (2d) 340. The defendants bring the case here, their contentions being, (a) that the legislative confirmation of the assessment is controlling; (b) that the court below erred in finding that the assessment was plainly arbitrary and unreasonably discriminatory; and (c) that if the assessment was excessive, either in itself or when compared with the assessments against other property, it should be not wholly set aside but reduced to the extent of the excess. There can be no doubt that the legislative confirmation placed the assessment on the same plane as if it were made by the legislature, and thereby cured afiy mere irregularities on the part of the assessors; but, as the legislature could not put aside or override constitutional limitations, the confirmation did not prevent inquiry into the alleged violation of such limitations. If, as found by the courts below, the assessment was plainly arbitrary and unreasonably discriminatory, it was in violation of both the due process and the equal protec1 tion clauses of the Fourteenth Amendment; so we turn to the complaint of that finding. As the courts below concurred in the finding on successive examinations of the evidence it should be accepted by us unless shown to be clearly erroneous. Washington Securities Co. v. United States, 234 U. S. 76, 78; Baker v. Schofield, 243 U. S. 114, 118; United States v. State Investment Co., 264 U. S. 206, 211; Norton v. Larney, 266 U. S. 511, 518. The road district extends across Franklin County from east to west along the Arkansas River and is five or six 192 OCTOBER TERM, 1926. Opinion of the Court. 274U.S. miles wide. The public road which is being improved traverses the district from east to west, is 24 miles long, practically parallels the railroad and touches the same towns. The improvement consists in reducing curves and grades, widening the road-bed and giving it a rock base and hard surface adapted to use at all seasons by all kinds of vehicles, whether drawn by animals or propelled by motors. The road is intended to be part of a projected hard-surface highway extending from Little Rock to Fort Smith, as the railroad does. The area of the road district is 67,000 acres and that of the railroad right of way therein is 565 acres, or eight-tenths of one per cent, of the whole. The benefits assessed to property in the district aggregate $575,421.35, of which $75,686.00, or 13.2 per cent., is assessed to the railroad. The assessment to the railroad is not based on real property alone, but also on rolling stock and other personalty valued at $52,465.00, while all other assessments are confined to real property. In this there is an obvious and unreasonable discrimination. Further discrimination is said to be shown by testimony indicating that the assessors fixed the benefits to the railroad on a mileage basis regardless of area, and as to other property proceeded solely with regard to area. But this testimony must be put aside by reason of the legislative adoption of the assessments. The modes in which the assessors arrived at the amounts assessed were not shown on the assessment roll or communicated to the legislature; so the question of discrimination must be determined independently of the theories and processes of the assessors, as if the assessments were made directly by the legislature. Most of the testimony is addressed to the questions whether and how far the railroad will be benefited by the intended improvement of the parallel public road. Some witnesses are of opinion there will be no benefit, and a ROAD DIST. v. MO. PAC. R. R. CO. 193 188 Opinion of the Court. few that there will be great benefit. These are extreme views and are weakened, rather than supported, by further statements of the same witnesses. Other testimony in substantial volume, coming from witnesses informed by observation and experience, is to the effect that, while an increase in particular traffic with accompanying revenue reasonably may be expected, it will be less than would be realized if the highway extended away from the railroad and reached localities theretofore without such a road; that, unlike such a lateral feeder, the parallel road reaching the same towns as the railroad will through its ready use by motor-driven vehicles withdraw from the railroad much of the less-than-car-load freight between these towns, and much of the passenger traffic between them; that such has been the actual result in similar situations along this and other railroads in Arkansas and other States, specific instances being described; and that the loss to this railroad in the instances described has ranged from 50 to 90 per cent, of such local traffic and compelled a cessation of part of the service to which it was incident. The successful competition of motor trucks in these situations is explained on the grounds that they do not bear the cost of constructing and maintaining the roadway, and are able to receive and deliver freight at the street door and to relieve their patrons from drayage charges. The view that the improved road will be of mixed benefit and detriment to the railroad is not confined to the plaintiff’s witnesses but shared by informed witnesses called by the defendants. One of these, a member of the State Highway Commission and familiar with the particular situation and the development in the locality, testifies: “ Q. What in your opinion is the effect of building this highway upon the revenue of the Missouri Pacific Railway? Will it be a detriment to it, or will it not be a benefit? A. Well from some standpoints a bene- 55514°-— 28-13 194 OCTOBER TERM, 1926. Opinion of the Court. 274U.S. fit, and from others perhaps a detriment, but as a whole perhaps a benefit.” From all the testimony we think there is ample ground for believing that the improved road will lead to an increase in the traffic and revenue of the railroad, as respects freight moving in car-load lots and passengers travelling considerable distances, but that the benefit from this will be cut down by a substantial loss in local freight and passenger traffic attracted to motor-driven vehicles moving over the improved road. That such a loss in local traffic usually ensues when hard-surface roads adapted to use by motor-driven vehicles are constructed practically parallel to railroads is not only shown by the testimony but is common knowledge. It received distinct recognition in the President’s message of December 8, 1922, to Congress. We think it also appears from the testimony that the increase in revenue reasonably to be expected will be greater than the loss, but that the excess will not be such as to justify an assessment of benefits of $75,686.00 or more than a small fraction of that sum. Indeed, on the present showing, we should regard an assessment in excess of $15,000.00 as passing the outside limit of reasonable judgment and plainly arbitrary. Our conclusion is that the assessment against the railroad is unreasonably discriminatory in so far as it is based on personal property, and in this respect violates the equal protection clause of the Fourteenth Amendment, and that it is otherwise so excessive as to be a manifestly arbitrary exaction and in violation of the due process of law clause of the same amendment. In these respects the finding and holding below are well grounded. It follows that the present assessment is invalid and an injunction should be granted against its enforcement. The District Court so decreed. But as, on the present showing, it appears that an assessment of some benefits— DUIGNAN v. UNITED STATES. 195 188 Syllabus. in an amount certainly below $15,000.00—would be justified, the way should be left open for making a new or revised assessment. The defendants ask, if the present assessment be held excessive, that it be reduced in this suit to a proper sum. But to this we do not assent. The state statute commits the assessing of benefits to a special non-judicial board of assessors, and authorizes that board, when requested by the commissioners of the district, to revise their assessments by “ increasing or diminishing the assessment against particular pieces of property as justice requires.” Act 588, § 10, Special Road Acts 1919. The better course is to leave the making of a substituted or revised assessment to that board. The decree will be modified by including a provision that is without prejudice to the lawful revision of the assessment conformably to the state statute and not exceeding $15,000 in amount. Decree modified and affirmed as modified. DUIGNAN v. UNITED STATES et al. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 101. Argued February 21, 1927.—Decided April 25, 1927. 1. Case held properly reviewable by appeal under Jud. Code § 241, before amendment, and certiorari denied. P. 197. 2. In a suit by the United States against a lessor and a lessee to abate a liquor nuisance, under § 22 of Title II of the Prohibition Act, issues raised by a cross bill of the lessor asserting his federal right under § 23 to a forfeiture of the lease as against the lessee, are within the jurisdiction of the District Court regardless of the citizenship of the parties. P. 197. 3. A suit by the United States to abate a liquor nuisance under §* 22 of Title II of the Prohibition Act, is a suit in equity and triable without a jury, P. 197, 196 OCTOBER TERM, 1926. Opinion of the Court. 274 U. 8. 4. The constitutional right to a jury trial may be waived by proceeding to trial without demanding a jury and is not saved by an application to the discretionary power of the court, sitting in equity, to frame issues for a jury. P. 198. 5. To support a demand for a jury trial of matters raised by a cross bill, the demandant must first put them in issue by answering the cross bill. P. 199. 6. Objections to the equity jurisdiction to adjudge a forfeiture of a lease under § 23 of Title II of the Prohibition Act, and to the assertion of this right through a cross bill filed by the lessor against the lessee in a suit brought against them both by the United States under § 22, are waived if not seasonably taken. P. 199. 4 F. (2d) 983, affirmed. Appeal from a decree of the Circuit Court of Appeals which affirmed a decree of the District Court abating a nuisance and adjudging forfeiture of a lease, under §§22 and 23 of the Prohibition Act. Mr. Alfred J. Talley for appellant. Mr. John W. Davis for appellee Pall Mall Realty Corporation. Solicitor General Mitchell was on the brief for the United States. Mr. Justice Stone delivered the opinion of the Court. The United States filed a bill in equity in the district court for southern New York, under § 22 of the National Prohibition Act, to abate a liquor nuisance alleged to be maintained by Duignan, the appellant, upon premises occupied by him under a lease. By amended bill, the appellee, the Pall Mall Realty Corporation, the owner of the leased premises, was made a party defendant. In its answer, it admitted the allegations of the bill. By cross bill it set up its ownership of the premises, its lease to Duignan, the maintenance of a liquor nuisance by him on the premises in violation of § 21 of the National Pro- DUIGNAN v. UNITED STATES. 197 195 Opinion of the Court. hibition Act, and asked that the lease be forfeited under § 23 of the Act. Appellant neither answered the cross bill nor directed any motion to it, but made application for a jury trial which was denied. On the trial without a jury, appellant drew in question the constitutionality of the forfeiture of his leasehold as a denial of due process of law. After the trial, in which the existence of the nuisance was litigated, the district court decreed the forfeiture of the lease. This was affirmed by the court of appeals for the second circuit. 4 F. (2d) 983. The case is properly here on appeal, Jud. Code, § 241, before amended, and the petition for certiorari, filed as a jurisdictional precaution, is denied. At the outset, appellant denies the jurisdiction of the district court to try the issues raised by the cross bill, in the absence of diversity of citizenship. Section 23 provides: “Any violation of this title upon any leased premises by the lessee or occupant thereof shall, at the option of the lessor, work a forfeiture of the lease.” The right thus given to the lessor to forfeit the lease is one arising under a law of the United States, and the district court had jurisdiction to determine a suit founded upon it, regardless of the citizenship of the parties. Jud. Code, § 24 (a). Numerous other questions are raised by appellant’s brief and argument, but so far as they are of substance, they are involved in or incidental to the two principal grounds urged for reversal: (1) that appellant was denied the right to a jury trial, in violation of the Seventh Amendment of the Constitution, and (2) that the forfeiture of appellant’s lease is a denial of due process of law. So far as appellant’s motion for a jury trial was directed to the issues raised by the bill and answer, it was properly denied, as § 22 of the National Prohibition Act 198 OCTOBER TERM, 1926. Opinion of the Court. 274U.S. authorizes the abatement of a liquor nuisance by a bill in equity filed by the United States. Cf. Murphy v. United States, 272 U. S. 630. But it is urged that § 23, assuming its constitutionality, at most gives a right at law to a possessory action for the recovery of the leased premises, which is not cognizable in a court of equity; and in any case, appellant was entitled to have the issues raised by the cross bill tried by a jury. Appellant’s application for a jury was in terms a motion for an order “ framing for trial by jury the issues in this action as to the occurrences of the alleged violations of the National Prohibition Act.” It clearly appears from the notice of motion and the supporting affidavits that the motion was not a challenge to the equity jurisdiction of the court nor a demand for a jury trial in an action at law, such as is guaranteed by the Constitution. It was rather an application addressed to the discretion of the court sitting in equity to frame issues for a jury to aid, as stated, “ in advising the court as to the credibility of the witnesses,” and was made on the ground that this was “not the usual equity case, which ordinarily involves only matters of law.” The right to a jury trial may be waived where there is an appearance and participation in the trial without demanding a jury. Kearney v. Case, 12 Wall. 275; Perego v. Dodge, 163 U. S. 160, 166. Section 649 of the Revised Statutes provides that issues of fact may be tried by the court without a jury, upon written stipulation of the parties, and that the finding of the court upon the facts shall have the same effect as the verdict of the jury. But this section does not preclude other kinds of waiver. Kearney v. Case, supra. Its purpose and effect, when read together with §§ 648 and 700, is to define the scope of appellate review in actions at law without a jury. Unless there is a written stipulation waiving a jury, there can be no review of the rulings on questions of law in DUIGNAN v. UNITED STATES. 199 195 Opinion of the Court. the course of the trial or of the sufficiency of a special finding to support the judgment. See Law v. United States, 266 U. S. 494, 496; cf. Fleischmann Co. v. United States, 270 U. S. 349, 355, 356. Appellant’s failure to demand a trial by a common law jury amounted, we think, to a waiver of the constitutional right, if any, now claimed. But even if his application for a jury trial be regarded as an assertion of his constitutional right, there were no issues to be tried by a jury, as he had failed to answer the cross bill. The Confiscation Cases, 20 Wall. 92, 110. Hence, there was no error in the court’s finding the facts supporting its judgment, without a jury. Whether issues raised by the pleadings in proceedings under § 23 must be tried by jury if seasonably demanded is a question which does not arise on this record. Appellant on appeal for the first time challenged the equity jurisdiction of the court, urging that the remedy at law was adequate. The cancellation of appellant’s lease, which was the relief sought, was a remedy competent for equity to give. The repeated holdings of the lower courts that a suit brought under § 23 is one cognizable in equity,1 at least suggest that the suit is not so plainly at law that the court should, of its own motion, have dismissed it. Under such circumstances, objection to the equity jurisdiction not seasonably taken is waived, Kilboum v. Sunderland, 130 U. S. 505, 514; Brown v. Lake Superior Iron Co., 134 U. S. 530, 534-536; Perego v. Dodge, supra, 164, especially where, as here, appellant did not answer the cross bill. For the same reason it is unnecessary for us to determine whether appellee adopted the proper procedure in seeking the forfeiture of the lease by cross bill. 1 Grossman n. United States, 280 Fed. 683; United States v. Boynton, 297 Fed. 261; United States v. Archibald, 4 F. (2d) 587; United States v. Gaffney, 10 F. (2dl 69^; cf. United States v. Schwartz, 1 F. (2d) 718. 200 OCTOBER TERM, 1926. Statement of the Case. 274U.S. We do not consider the constitutionality of the forfeiture under § 23. The court below in enumerating the questions raised and presented made no mention of the constitutional question. The assignment of errors below did not refer specifically to it as required by the rules of that court, and so far as the record discloses, it was not presented there. See United States v. Gaffney, 10 F. (2d) 694, 696. This Court sits as a court of review. It is only in exceptional cases coming here from the federal courts that questions not pressed or passed upon below are reviewed. See Montana Ry. Co. v. Warren, 137 U. S. 348, 351; Old Jordan Mining Co. n. Société Anonyme Des Mines, 164 U. S. 261, 264, 265; Magruder v. Drury, 235 U. S. 106, 113; Gila Valley Ry. v. Hall, 232 U. S. 94, 98; Grant-Bros v. United States, 232 U. S. 647, 660; Ana Maria Sugar Co. v. Quinones, 254 U. S. 245, 251 ; cf. West v. Rutledge Timber Co., 244 U. S. 90, 99, 100; United States v. Tennessee & Coosa R. R., 176 U. S. 242, 256. Decree affirmed. BUCK v. BELL, SUPERINTENDENT. ERROR TO THE SUPREME COURT OF APPEALS OF THE STATE OF VIRGINIA. No. 292. Argued April 22, 1927.—Decided May 2, 1927. 1. The Virginia statute providing for the sexual sterilization of inmates of institutions supported by the State who shall be found to be afflicted with an hereditary form of insanity or imbecility, is within the power of the State under the Fourteenth Amendment. P. 207. 2. Failure to extend the provision to persons outside the institutions named does not render it obnoxious to the Equal Protection Clause. P. 208. 143 Va. 310, affirmed. Error to a judgment of the Supreme Court of Appeals of the State of Virginia which affirmed a judgment order- BUCK v. BELL. 201 200 Argument for Plaintiff in Error. ing the Superintendent of the State Colony of Epileptics and Feeble Minded to perform the operation of salpingectomy on Carrie Buck, the plaintiff in error. Mr. I. P. Whitehead for plaintiff in error. The plaintiff in error contends that the operation of salpingectomy, as provided for in the Act of Assembly, is illegal in that it violates her constitutional right of bodily integrity and is therefore repugnant to the due process of law clause of the Fourteenth Amendment. In Munn v. Illinois, 94 U. S. 143, this Court, in defining the meaning of “deprivation of life,” said: “The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The deprivation not only of life but whatever God has’ given to everyone with life . . . is protected by the provision in question.” The operation of salpingectomy clearly comes within the definition. It is a surgical operation consisting of the opening of the abdominal cavity and the cutting of the Fallopian tubes with the result that sterility is produced. It is true the Act of Assembly does provide for a hearing before the sterilization operation can be performed, and that that hearing may be in a court of law in case of appeal, but this fact standing alone does not meet the constitutional requirement of due process of law. In determining whether the constitutional requirement has been observed we must look to the substance rather than the form of the law. Chicago R. Co. v. Chicago, 166 U. S. 226; Simmons v. Craft, 182 U. S. 427; for form of the procedure cannot convert the process used into due process of law, if the result is to illegally deprive a citizen of some constitutional right. Chicago R. Co. v. Chicago, supra. Neither can the State make a proceeding due process of law by declaring it to be such. If this were not so, there could be no restraint on the power of the legislature. Murry v. Hoboken L. & I. Co., 18 How. 272; 202 OCTOBER TERM, 1926. Argument for Plaintiff in Error. 274U.S. Hurtado n. California, 110 U. S. 516. The test of due process of law is that the proceedings shall be legal, preserving the liberty of the citizen. The inherent right of mankind to go through life without mutilation of organs of generation needs no constitutional declaration. The Act denies to the plaintiff and other inmates of the state colony for epileptics and feeble minded the equal protection of the laws guaranteed by the Fourteenth Amendment. “The mere fact of classification is not sufficient to relieve a statute of the reach of the equality clause.” Gulf, Colo. R. R. Co. v. Ellis, 165 U. S. 150; and the classification must be based upon some reasonable grounds in the light of the purpose sought to be attained by the legislature and must not be an arbitrary selection. The object of the Act is to prevent the reproduction of mentally defective people. “ The legislature cannot take what might be termed a natural class of persons, split this class in two and then arbitrarily designate the dissevered factions of the original unit as two classes and thereupon enact different rules for the government of each.” State v. Julow, 129 Mo. 163; State v. Walsh, 136 Mo. 400; Alexander v. Elizabeth, 56 N. J. L. 71; Haynes v. Lapeer, 201 Mich. 138; Smith v. Command, 231 Mich. 409; Smith v. Bd. of Examiners, 85 N. J. L. 46. If this Act be a valid enactment, then the limits of the power of the State (which in the end is nothing more than the faction in control of the government) to rid itself of those citizens deemed undesirable according to its standards, by means of surgical sterilization, have not been set. We will have " established in the State the science of medicine and a corresponding system of judicature.” A reign of doctors will be inaugurated and in the name of science new classes will be added, even races may be brought within the scope of such regulation, and the worst forms of tyranny practiced. In the place of the constitu- BUCK v. BELL. 203 200 Argument for Defendant in Error. tional government of the fathers we shall have set up Plato’s Republic. Mr. Aubrey E. Strode for defendant in error. The act does not impose cruel and unusual punishment. A constitutional provision prohibiting the infliction of cruel and unusual punishment is directed against punishment of a barbarous character, involving torture, such as drawing and quartering the culprit, burning at the stake, cutting off the nose, ears or limbs, and the like, and such punishments as were regarded as cruel and unusual at the time the Constitution was adopted. Hart v. Commonwealth, 131 Va. 741 ; In re Kemmler, 136 U. S. 436; Collins v. Johnson, 237 U. S. 509; Weems v. United States, 217 U. S. 349.- In State v. Félin, 70 Wash. 65, which was a criminal case, it was expressly held that an asexualization operation, vasectomy in that case, was not a cruel punishment. This Court held in the Weems Case, supra, that the provision of the federal Constitution (Amendment VIII) does not apply to state legislatures. The Act affords due process of law. Commission v. Hampton Co., 109 Va. 565; Mallory v. Va. Colony for Feeble Minded, 123 Va. 205; Anthony v. Commonwealth, 142 Va. 577. The Act is a valid exercise of the police power. The courts generally are indisposed to suffer the police power to be impaired or defeated by constitutional limitations. Barbier v. Connolly, 113 U. S. 27; Shenandoah Lime Co. v. Governor, 115 Va. 875. Section 159 of the Constitution of Virginia provides that “ the exercise of the police power of the State shall never be abridged.” An exercise of the police power analogous to that of the statute here in question may be found in the compulsory vaccination statutes ; for there, as here, a surgical operation is required for the protection of the individual and of society; and that requirement has been upheld when imposed upon school children only, those at- 204 OCTOBER TERM, 1926. Argument for Defendant in Error. 274 U.S. tending public institutions of learning, though not imposed upon the public as a whole. Jacobson v. Massachusetts, 197 U. S. 11; Viemester v. White, 179 N. Y. 235. The State may and does confine the feeble minded, thus depriving them of their liberty. When so confined they are by segregation prohibited from procreation—a further deprivation of liberty that goes unquestioned. The appellant is under the Virginia statutes already by law prohibited from procreation. The precise question therefore is whether the State, in its judgment of what is best for appellant and for society, may through the medium of the operation provided for by the sterilization statute restore her to the liberty, freedom and happiness which thereafter she might safely be allowed to find outside of institutional walls. No legal reason appears why a person of full age and sound mind, and even though free from any disease making such operation advisable or necessary, may not by consent have the operation performed for the sole purpose of becoming sterile, thus voluntarily giving up the capacity to procreate. The operation therefore is not legally malum in se. It can only be illegal when performed against the will or contrary to the interest of the patient. Who then is to consent or decide for this appellant whether it be best for her to have this operation? She cannot determine the matter for herself both because being not of full age her judgment is not to be accepted nor would it acquit the surgeon, and because die is further incapacitated by congenital mental defect. The statute is part of a general plan applicable to all feeble-minded. It may be sustained as based upon a reasonable classification. In Virginia, marriage with the very class here involved, viz., feeble-minded inmates of state institutions, is prohibited, and its consummation visited with heavy penalties of the law. In Wisconsin, a statute requiring male applicants for marriage to file a physician’s certificate of freedom from disease BUCK v. BELL. 205 200 Opinion of the Court. was sustained in Peterson v. Widule, 157 Wis. 641. See also Maynard v. HUI, 125 U. S. 190. The validity of a statute prohibiting the marriage of epileptics was sustained in Gould v. Gould, 78 Conn. 242. See Kinney v. Conn, 30 Grat. 858; Smith v. Board, 85 N. J. L. 46, distinguished and criticized. Mr. Justice Holmes delivered the opinion of the Court. This is a writ of error to review a judgment of the Supreme Court of Appeals of the State of Virginia, affirming a judgment of the Circuit Court of Amherst County, by which the defendant in error, the superintendent of the State Colony for Epileptics and Feeble Minded, was ordered to perform the operation of salpingectomy upon Carrie Buck, the plaintiff in error, for the purpose of making her sterile. 143 Va. 310. The case comes here upon the contention that the statute authorizing the judgment is void under the Fourteenth Amendment as denying to the plaintiff in error due process of law and the equal protection of the laws. Carrie Buck is a feeble minded white woman who was committed to the State Colony above mentioned in due form. She is the daughter of a feeble minded mother in the same institution, and the mother of an illegitimate feeble minded child. She was eighteen years old at the time of the trial of her case in the Circuit Court, in the latter part of 1924. An Act of Virginia, approved March 20, 1924, recites that the health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives, under careful safeguard, &c. ; that the sterilization may be effected in males by vasectomy and in females by salpingectomy, without serious pain or substantial danger to life; that the Commonwealth is supporting in various institutions many defective persons who if now discharged would become 206 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. a menace but if incapable of procreating might be discharged with safety and become self-supporting with benefit to themselves and to society; and that experience has shown that heredity plays an important part in the transmission of insanity, imbecility, &c. The statute then enacts that whenever the superintendent of certain institutions including the above named State Colony shall be of opinion that it is for the best interests of the patients and of society that an inmate under his care should be sexually sterilized, he may have the operation performed upon any patient afflicted with hereditary forms of insanity, imbecility, &c., on complying with the very careful provisions by which the act protects the patients from possible abuse. The superintendent first presents a petition to the special board of directors of his hospital or colony, stating the facts and the grounds for his opinion, verified by affidavit. Notice of the petition and of the time and place of the hearing in the institution is to be served upon the inmate, and also upon his guardian, and if there is no guardian the superintendent is to apply to the Circuit Court of the County to appoint one. If the inmate is a minor notice also is to be given to his parents if any with a copy of the petition. The board is to see to it that the inmate may attend the hearings if desired by him or his guardian. The evidence is all to be reduced to writing, and after the board has made its order for or against the operation, the superintendent, or the inmate, or his guardian, may appeal to the Circuit Court of the County. The Circuit Court may consider the record of the board and the evidence before it and such other admissible evidence as may be offered, and may affirm, revise, or reverse the order of the board and enter such order as it deems just. Finally any party may apply to the Supreme Court of Appeals, which, if it grants the appeal, is to hear the case upon the record of the trial BUCK v. BELL. 207 200 Opinion of the Court. in the Circuit Court and may enter such order as it thinks the Circuit Court should have entered. There can be no doubt that so far as procedure is concerned the rights of the patient are most carefully considered, and as every step in this case was taken in scrupulous compliance with the statute and after months of observation, there is no doubt that in that respect the plaintiff in error has had due process of law. The attack is not upon the procedure but upon the substantive law. It seems to be contended that in no circumstances could such an order be justified. It certainly is contended that the order cannot be justified upon the existing grounds. The judgment finds the facts that have been recited and that Carrie Buck “ is the probable potential parent of socially inadequate offspring, likewise afflicted, that she may be sexually sterilized without detriment to her general health and that her welfare and that of society will be promoted by her sterilization,” and thereupon makes the order. In view of the general declarations of the legislature and the specific findings of the Court, obviously we cannot say as matter of law that the grounds do not exist, and if they exist they justify the result. We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U. S. 11. Three generations of imbeciles are enough. 208 OCTOBER TERM, 1926. Syllabus. 274 U.S. But, it is said, however it might be if this reasoning were applied generally, it fails when it is confined to the small number who are in the institutions named and is not applied to the multitudes outside. It is the usual last resort of constitutional arguments to point out shortcomings of this sort. But the answer is that the law does all that is needed when it does all that it can, indicates a policy, applies it to all within the lines, and seeks to bring within the lines all similarly situated so far and so fast as its means allow. Of course so far as the operations enable those who otherwise must be kept confined to be returned to the world, and thus open the asylum to others, the equality aimed at will be more nearly reached. Judgment affirmed. Mr. Justice Butler dissents. BURNRITE COAL BRIQUETTE COMPANY v. RIGGS ET AL. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 227. Argued March 11, 14, 1927.—Decided May 2, 1927. 1. The objection to the bringing of a suit, dependent on diversity of citizenship, in the District Court in a State of which neither party is a citizen, goes to the venue, and may be waived by general appearance and other action. P. 211. 2. A federal District Court may, under its general equity powers independently of any state statute, entertain a bill of a stockholder against the corporation for the appointment of at least a temporary receiver in order to prevent threatened diversion or loss of assets through gross fraud and mismanagement of its officers. P. 212. 3. The fact that a bill seeking appointment of a receiver of a corporation is brought in a State other than that of the incorporation may lead the court to decline to interfere as a matter of comity or for want of equity; or it may require the court to limit the scope of the relief granted. But the fact of incorporation under the laws of another State does not preclude jurisdiction. P. 212. BURNRITE COAL CO. v. RIGGS. 209 208 Opinion of the Court. 4. Where a receiver is appointed in a stockholder’s suit by a federal court having jurisdiction, and the appointment is held on review to have been wrongly made, the court may, in the exercise of its judicial discretion, require that the receivers’ charges be paid either by the corporation or by the unsuccessful plaintiff. P. 214. 5. And where a court, in the exercise of jurisdiction, has erroneously appointed a receiver, the acquiescence of the defendant may influence the court, in its discretion, to make the receivership expenses a charge upon the fund. P. 214. 6. A decree of the Circuit Court of Appeals reviewing a decree of the District Court which appointed receivers, and directing a dismissal of the bill “ for want of jurisdiction,” does not become the law of the case so as to require this Court, upon review of a second appeal from a decree allowing the receivers’ expenses, to assume that the dismissal of the bill directed was properly for want of jurisdiction. P. 215. 6 F. (2d) 226, affirmed. Certiorari (269 U. S. 547) to a decree of the Circuit Court of Appeals which affirmed one of the District Court allowing receivers’ expenses against a corporation in a stockholder’s suit. See also 291 Fed. 754. Messrs. James J. Lynch and George W. C. McCarter with whom Mr. Robert H. McCarter was on the brief, for petitioner. Mr. Merritt Lane, with whom Mr. Joseph L. Smith was on the brief, for respondents. Mr. Justice Brandeis delivered the opinion of the Court. This suit was brought in the federal court for New Jersey against the Burnrite Coal Briquette Company, a Delaware corporation, by Riggs, a stockholder. The bill charged gross mismanagement; prayed for the appointment of a receiver to conserve the assets; and asked, that “ if deemed advisable ” the court “ proceed under the statutes of the State of New Jersey . . . and that the 55514°—28-------14 210 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. receiver be given all the powers and be charged with all the duties imposed upon such a receiver by the statutes.” Upon the filing of the bill, receivers were appointed, action by the corporation was enjoined, and an issue of receivers’ certificates was authorized, all ex parte. After an elaborate hearing upon an order to show cause, the receivers were continued until final hearing. Upon final hearing, the charges of mismanagement were sustained and the receivership was again ordered continued, “ with all the powers vested in them by previous orders by this court made, and with all of the powers conferred upon receivers by an act of the State of New Jersey, entitled, ‘An act concerning corporations,’ revision of 1896, its amendments and supplements thereto, and that the receivers continue to operate the business of said defendant corporation upon a re-organization or re-adjustment of the affairs of said corporation or such disposition as may be hereafter directed to be made of the affairs of said corporation by this court.” The Court of Appeals reversed the decree entered upon the final hearing and directed that the bill be dismissed for want of jurisdiction. The decision was not rested upon the ground that a State cannot enlarge the remedial right to proceed in a federal court sitting in equity, see Pusey & Jones v. Hanssen, 261 U. S. 491; nor upon the ground that a State cannot modify the substantive rights of a stockholder as against a foreign corporation merely because it happens to have property within the State. Compare Maguire v. Mortgage Co., 203 Fed. 858. The reversal was placed solely upon the ground that the corporation had been found by the District Court solvent at the time of the filing of the bill; that the statute of New Jersey, as interpreted by its courts, conferred no power upon its own courts to appoint receivers of foreign corporations unless they were insolvent; and that the juris- BURNRITE COAL CO. v. RIGGS. 211 208 Opinion of the Court. diction of the federal court was determined by that of the state courts. 291 Fed. 754. After the coming down of the mandate, directing dismissal for want of jurisdiction, the District Court allowed the account of the receivers who had been active during a period of nearly two years; directed payment by the corporation of the receivers’ obligations then outstanding, their expenses, the costs, and compensation for their own services and those of their counsel, amounting in all to nearly $80,000; declared these amounts a lien upon the corporation’s property; and ordered that, in default of payment, the property be sold to satisfy the charges. Upon a second appeal, that decree was affirmed by the Court of Appeals. 6 F. (2d) 226. The corporation contended that since the District Court was held to be without jurisdiction, it had no power to allow the account and order the payment out of the fund. Lion Bonding and Surety Co. v. Karatz, 262 U. S. 640, 642. This Court granted a writ of certiorari. 269 U. S. 547. The main question for decision is whether, in view of the Court of Appeals’ direction to dismiss the bill for want of jurisdiction, it was error to allow thereafter the receivers’ account and direct the payment. There was an objection to the jurisdiction, which, if it had been seasonably taken, must have prevailed. Camp n. Gress, 250 U. S. 308. The plaintiff was a citizen of New York; the defendant a Delaware corporation; the federal jurisdiction rested wholly on diversity of citizenship; and neither party was a citizen of New Jersey. Thus, there was a sound objection to the venue. If that objection had been duly made, and had been insisted upon, an error of the lower court in overruling it could not justify charging the corporation now with payment of any charge on account of the receivership. But that objection to the jurisdiction, being to the venue, could be waived. 212 OCTOBER TERM, 1926. Opinion of the Court. 274U.S. Central Trust Co. v. McGeorge, 151 U. S. 129; Kreigh v. Westinghouse & Co., 214 U. S. 249, 252-253. And, before it was taken by the answer, it had been waived by a general appearance and other action. This was conceded. The reversal with direction to dismiss for want of jurisdiction, ordered on the first appeal, was put upon an entirely different ground. The Court of Appeals held that there was lack of ♦jurisdiction of the subject matter. It assumed that the jurisdiction of the federal court was dependent upon the state statute. This was error. A federal district court may, under its general equity powers independently of any state statute, entertain a bill of a stockholder against the corporation for the appointment of at least a temporary receiver in order to prevent threatened diversion or loss of assets through gross fraud and mismanagement of its officers.1 There were allegations in the bill adequate to support a suit of that character; and there was nothing in the bill inconsistent with its being entertained as such. The only reference in the bill to the state statute was in one of its eleven prayers. After the waiver of the objection to the venue, there was federal jurisdiction over the parties and of the subject matter; and there was equity jurisdiction. The fact that a bill seeking appointment of a receiver of a corporation is brought in a State other than that of the incorporation may lead the court to decline to interfere as a matter of comity or for want of equity; or it may require the court to limit the scope of the relief 1 See Dodge v. Woolsey, 18 How. 331, 341-344; Zeckendorj v. Stein-feld, 225 U. S. 445, 459; Citizens’ Savings & Trust Co. v. III. Cent. R. R. Co., 205 U. S. 46; Clark v. National Linseed Oil Co., 105 Fed. 787; New Albany Waterworks Co. v. Louisville Banking Co., 122 Fed. 776; Callins v. Williamson, 229 Fed. 59. BURNRITE COAL CO. v. RIGGS. 213 208 Opinion of the Court. granted.2 But the fact of incorporation under the laws of another State does not preclude jurisdiction.3 If the dismissal directed by the Court of Appeals on the first appeal was proper (as to which we have no occasion to express an opinion), it must be justified on the ground that, in view of the facts, the District Court erred in its judgment in appointing and continuing the receivers. Compare Chicago Title & Trust Co. v. Newman, 187 Fed. 573, 576. In other words, the dismissal must rest on the ground that there was want of equity, not on lack of jurisdiction. The District Court, assuming erroneously that it was without jurisdiction of the cause, based the order of payment solely on a supposed exception to the rule which denies to a court lacking jurisdiction the power to allow receivers’ charges. According to the supposed exception, a party who has acquiesced and has thereby joined in misleading the court into an erroneous exercise of jurisdiction, may not complain when he is, thereafter, saddled with the charges. And he will be held to have acquiesced, despite a challenge of the jurisdiction, if his challenge was placed wholly upon an untenable ground; for, by objecting only on the untenable ground, he may have misled the court as much as if he had not objected at all. The trial court rested its finding of acquiescence on the fact that, while vigorously opposing continuance of the receiver 2 See Leary v. Columbia River Nav. Co., 82 Fed. 775; Sidway v. Missouri Land Co., 101 Fed. 481; Parks v. Bankers’ Corporation, 140 Fed. 160; Pearce v. Sutherland, 164 Fed. 609; Maguire v. Mortgage Co., 203 Fed. 858. 8 Compare Central Trust Co. v. McGeorge, 151 U. S. 129; Lewis v. American Naval Stores, 119 Fed. 391; Scattergood v. American Pipe Co., 249 Fed. 23; Ward v. Foulkrod, 264 Fed. 627; Kynerd v. McCarthy, 3 F. (2d) 32; See & Depew, Inc. v. Fisheries Products Co., 9 F. (2d) 235. Compare also, North American Land Co. v. Watkins, 109 Fed. 101. 214 OCTOBER TERM, 1926. Opinion of the Court. 274U.S. ship on other grounds, the corporation did not intimate a lack of jurisdiction until months after the appointment; that, aside from failing to object to the venue, it failed to appeal from the decree continuing the appointment of the receivers, when the case was heard upon the order to show cause; and that it stood by in silence while the receivers were borrowing and spending money upon its property, thus taking the benefit of their action. The assumption of the District Court in matter of law and its finding of fact were affirmed by the Court of Appeals. We have no occasion to determine whether a federal district court which appoints a receiver in a case in which it necessarily lacks jurisdiction of the subject matter, so that jurisdiction cannot be acquired by acquiescence, may nevertheless impose upon the corporation, because of acquiescence, the usual charges incident to a receivership. For in the case at bar, the District Court had throughout jurisdiction of the subject matter. It is settled that where a receiver is appointed in a stockholders’ suit by a federal court having jurisdiction, and the appointment is held on review to have been wrongly made, the court may, in the exercise of its judicial discretion, require that the receivers’ charges be paid either by the corporation or by the unsuccessful plaintiff.4 See Palmer v. Texas, 212 U. S. 118, 132; Lion Bonding and Surety Co. v. Karatz, 262 U. S. 640, 642. Compare Atlantic Trust Co. v. Chapman, 208 U. S. 360. And where a court, in the exercise of jurisdiction, has erroneously appointed a receiver, the acquiescence of the defendant may influence the court, in its discretion, to make the receivership expenses a charge 4 See Ferguson v. Dent, 46 Fed. 88, 96-99; Clark v. Brown, 119 Fed. 130; Beach v. Macon Grocery Co., 125 Fed. 513; In re Lacov, 142 Fed. 960; In re T. E. Hill Co., 159 Fed. 73; In re Aschenbach Co., 183 Fed. 305; In re Wentworth Lunch Co., 191 Fed. 821; In re Wilkes-Barre Light Co., 235 Fed. 807; In re Independent Machine Corp., 251 Fed. 484. LIGGETT & MYERS v. U. S. 215 208 Syllabus. upon the fund.5 It was well within the discretion of the District Court to charge the fund in the case at bar. We have no occasion to consider the contention, made as to a part of the charges, that they were incurred after the acquiescence had ceased and, hence, do not fall within the supposed exception above referred to. For the waiver of the objection to venue conferred upon the District Court complete jurisdiction of the cause, and the power to impose upon the corporation payment of the receivers’ charges does not rest on acquiescence. There is no serious contention that any particular charge allowed was, in its nature or in amount, improper, or that in allowing it as a charge against the fund there was an abuse of discretion. The contention that the first decision of the Circuit Court of Appeals directing dismissal of the bill for want of jurisdiction had become “ the law of the case ” and that, therefore, this Court must assume that the dismissal of the bill directed was properly a dismissal for want of jurisdiction, is groundless. Messenger v. Anderson, 225 U. S. 436, 444; Diaz v. Patterson, 263 U. S. 399, 402; Davis v. O’Hara, 266 U. S. 314, 321. Affirmed. LIGGETT & MYERS TOBACCO COMPANY v. UNITED STATES. CERTIORARI TO THE COURT OF CLAIMS. No. 362. Argued March 3, 1927.—Decided May 2, 1927. 1- A continuing order for naval supplies made during the late war by direction of the President, under Acts of March 4 and June 15, 1917, examined and held to be not an offer to purchase but a command, acceptance of which “ subject to conditions ” specified, did 5 See Clark v. Brown, 119 Fed. 130; In re Wilkes-Barre Light Co., 235 Fed. 807; In re Independent Machine Corp., 251 Fed. 484. Compare Dillingham v. Moran, 81 Fed. 759; 101 Fed. 933; Pennsylvania Steel Co. v. New York City Ry. Co., 198 Fed. 721, 725-734. 216 OCTOBER TERM, 1926. Argument for Petitioner. 274 U. S. not make a contract; therefore, the property delivered under it was taken by eminent domain. P. 220. 2. For property not paid for when taken, just compensation includes the value at that time, with enough more, measurable by interest, to produce the equivalent of full value paid at the taking. Id. 61 Ct. Cis. 693, reversed. Certiorari to a judgment of the Court of Claims allowing a recovery less than the petitioner’s claim, for tobacco products furnished the Government during the war. Mr. Chester A. Gwinn, with whom Mr. Adrian C. Humphreys was on the brief, for petitioner. The owner is not limited to the value of the property at the time of the taking but is entitled to such addition as will produce the full equivalent of that value paid contemporaneously with the taking. Interest at a proper rate is a good measure by which to ascertain the amount so to be added. Seaboard A. L. Ry. v. United States, 261 U. S. 299; Brooks-Scanlon Corp. v. United States, 265 U. S. 106; United States v. Benedict, 261 U. S. 294; United States v. Rogers, 255 U. S. 163. Petitioner’s property was taken by the United States through the exercise of its right of eminent domain. American Smelting & Ref. Co. v. United States, 259 U. S. 75; Atlantic Ref. Co. v. United States, 59 Ct. Cis. 108; Seaboard A. L. Ry. v. United States, supra; Brooks-Scanlon Corp. v. United States, supra. Since Congress has no power to limit the right to just compensation guaranteed by the Fifth Amendment, § 177 of the Judicial Code does not apply to this case. Brooks-Scanlon Corp. v. United States, supra; United States v. Benedict, supra; Seaboard A. L. Ry. v. United States, supra; Monongahela Nav. Co. v. United States, 148 U. S. 312; United States v. New York, 160 U. S. 598; Plymouth Coal Co. n~. Pennsylvania, 232 U. S. 531. LIGGETT & MYERS v. U. S. 217 215 Argument for the United States. Assistant Attorney General Galloway, with whom Solicitor General Mitchell was on the brief, for the United States. The question presented is whether under the circumstances of this case there was a taking or requisition under the power of eminent domain, or a voluntary sale under contract. It must be conceded that the question is not settled by the decision in the case of American Smelting Co. v. United States, 259 U. S. 75. In that case the order for merchandise did not state that compliance with it was obligatory, and made no reference to statutes authorizing the United States to requisition property, as did the naval order in the present case. The order in that case also specified a price for the copper, and the Smelting Company not only agreed to deliver it as specified in the order, but agreed to the price fixed. The view that in the present case there was no requisition or taking under the power of eminent domain rests on the contention that where an “ obligatory ” order or requisition is issued under a statute authorizing the exercise of the power of eminent domain, the property owner to whom it is directed may not voluntarily deliver the property in obedience to the order, but must require the United States to come and take it, and that if he does indicate an “ acceptance ” or willingness to comply with the order, except as to the price suggested, and thereafter voluntarily delivers the merchandise to the United States, he has made a contract which limits him to the value as of the date of delivery without interest thereon to the date of payment, whereas if he had stood fast and refused to comply with the order in any particular, and required the government to send and seize his property, he would place himself in the better position of being entitled, in addition to the value as of the date of the taking, to interest thereon to the date of payment. The conclusion reached by the Court of Claims is not so obviously correct as to remove the question from the 218 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. field of reasonable debate. The question is one of importance affecting constitutional rights of citizens. Other cases involving the same problem are pending. Messrs. Ira Jewell Williams, John H. Stone, and F. R. Foraker filed a brief as amid curiae, by special leave of Court. Mr. Justice Butler delivered the opinion of the Court. Plaintiff brought this action to recover a balance claimed for tobacco products obtained from it for the Navy and Marine Corps between September 8, and November 23,1918. The Court of Claims found the value to be $483,504.30 and that in the same period the United States paid on account $423,893.96, and gave judgment for the difference, $59,610.34, without more. The plaintiff contends that the products were taken under the power of eminent domain and that it is entitled to such additional sum as will produce the equivalent of their value paid at the time of the taking; and that interest at a reasonable rate is the measure of the amount required to be added in order to make just compensation. The sole question is whether the facts found constitute a taking by eminent domain. Plaintiff was engaged in the manufacture and sale of tobacco products. August 26, 1918, the Bureau of Supplies and Accounts of the Navy issued and delivered to it Navy order N-4128, stating that pursuant to the Act of March 4,1917 (39 Stat. 1168, 1193) and the Act of June 15, 1917 (40 Stat. 182) and under the direction of the President an order thereby was placed to furnish specified tobacco products for which provisional prices were named; that compliance was obligatory; that no commercial orders should be allowed to interfere with the delivery called for; that, as it was impracticable then to “ determine a reasonable and just compensation for the material to be delivered, the fixing of the price will be sub- LIGGETT & MYERS v. U. S. 219 215 Opinion of the Court. ject to later determination. You are assured of a reasonable profit under this order; and as an advance payment you will be paid the unit prices stated hereon, with the understanding that such advance payment will not be considered as having any bearing upon the price to be subsequently fixed. Any difference between the amount of such advance payment and the amount finally determined upon as being just and reasonable will be paid to you or refunded by you, as the case may be.” The document stated that the order must be accepted and filled in any event; that it was to be signed and returned by plaintiff; that deliveries were to be made as directed by a designated officer and bills sent to him bearing a certificate that the prices were those stated in the order; and that the conditions appearing on the reverse side of the order were made a part of it. These included printed portions of the above-mentioned Acts of Congress empowering the President in. time of war to place an order with any person for war material, of a kind and quantity being produced by him, as the necessities of the Government might require; declaring that “ compliance with all such orders shall be obligatory,” and that, whenever the United States shall requisition any war material ” it shall make just compensation therefor”; and authorizing the President to exercise this power through agencies to be determined by him. September 9, 1918, the Paymaster General of the Navy directed that any orders issued by the Quartermaster General of the Marine Corps should be executed and billed at the prices specified in order N-4128. And, October 14 and November 22 following, the order was further modified so as to call for additional tobacco products. Upon receipt of the order and each of the modifications plaintiff signed a statement thereon that it was “ accepted subject to the conditions” specified. The President had authorized the Secretary of the Navy, either directly or through any officer who, acting under the Secretary, had 220 OCTOBER TERM, 1926. Syllabus. 274 U.S. authority to make contracts on behalf of the Government, to exercise all the power and authority vested in the President applicable to the production, purchase and requisitioning of war material. Navy order N-4128 did not purport to be an offer to purchase; it commanded delivery of specified merchandise. Plaintiff’s consent was not sought; it was not consulted as to quantity, price, time or place of delivery. The Navy relied upon the compulsory provisions of the Acts of Congress and commanded compliance with the order. These Acts authorized the requisition of plaintiff’s property for public use. The President was empowered to take immediate possession of its plant to manufacture the tobacco products called for. Act of June 3, 1916, 39 Stat. 166, 213. And it is to be presumed that the plant would have been taken if plaintiff had refused compliance. The acceptance was not the closing of a contract; it was the expression of purpose to obey. And the order was a continuing one and operated to require delivery of the specified articles whether then on hand or thereafter to be produced. The findings show that plaintiff’s property was taken by eminent domain; and its just compensation includes the additional amount claimed. Seaboard Air Line Ry. v. United States, 261 U. S. 299, 304; Brooks-Scanlon Corp. v. United States, 265 U. S. 106, 123. Judgment reversed. KERCHEVAL v. UNITED STATES. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 705. Argued January 19, 1927.—Decided May 2, 1927. A plea of guilty withdrawn by leave of court is not admissible against the defendant on the trial of the issue arising on a substituted plea of not guilty. P. 223. 12 F. (2d) 904, reversed. KERCHEVAL v. UNITED STATES. 221 220 Opinion of the Court. Certiorari (273 U. S. 685) to a judgment of the Circuit Court of Appeals affirming a conviction and sentence in the District Court, in a prosecution for using the mails to defraud. Mr. Edward J. Callahan, with whom Messrs. William E. Leahy, William J. Hughes, Jr., George R. Smith, William B. Movery, Paul Jones, Paul Jones, Jr., and H. C. Wade were on the brief, for petitioner. Assistant to the Attorney General Donovan, with whom Solicitor General Mitchell and Mr. William D. Whitney, Special Assistant to the Attorney General, were on the brief, for the United States. Mr. Justice Butler delivered the opinion of the Court. Petitioner was indicted in the District Court for the Western District of Arkansas under § 215 of the Criminal Code for using the mails to defraud. He pleaded guilty, and thereupon the court sentenced him to the penitentiary for three years. Afterwards he filed a petition alleging that he was induced so to plead by the promise of one of the prosecuting attorneys to recommend to the court that he be punished by sentence of three months in jail and by fine of $1,000, and by the statement of such attorney that the court would impose that sentence. The petition asserted that the sentence given was excessive and prayed to have it set aside and the punishment alleged to have been promised substituted. The United States denied the allegations of the petition. After hearing evidence on the issue, the court declined so to change the sentence, but, on petitioner’s motion, set aside the judgment and allowed him to withdraw his plea of guilty and to plead not guilty. At the trial the court, against objection by petitioner, permitted the prosecution as a 222 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. part of its case in chief to put in evidence a certified copy of the plea of guilty. The petitioner in defense introduced the court’s order setting aside the sentence and granting leave to withdraw that plea. Then both sides gave evidence as to matters considered by the court in setting aside the conviction. The court charged the jury: “The plea of guilty is introduced as evidence by the government. ... If you find that Mr. Kercheval made that plea of guilty and that no promise was held out to him for the purpose of getting him to make that plea, or if you find that he was notified before he made the plea that nothing that was ever said to him with reference to it theretofore would be met, then it is evidence for you to consider in connection with the other evidence in the case. If . . . you find that he was deceived, that this was brought about by conversations that he had had with reference to it, and that he made that plea of guilty when as a matter of fact he was not guilty, then you will disregard that particular part of it and consider just the other testimony in the case.” The jury returned a verdict of guilty, and the court sentenced petitioner to the penitentiary for three years. The Circuit Court of Appeals affirmed the judgment. 12 F. (2d) 904. It said (p. 907): “ In the motion made by defendant to set aside the judgment he admits that he had pleaded guilty. The purpose was to reduce the punishment, but if this failed he asked to withdraw his plea, and that the judgment be set aside. We know of no reason why the plea of guilty was not admissible under all these circumstances for what it might be worth. It was not conclusive of guilt, and the court so instructed the jury. The defendant probably knew better than any one else whether or not he was guilty. Under the evidence in this case a plea of guilty upon his part would have seemed a very reasonable thing. We see no substantial or prejudicial error in the admission of any of KERCHEVAL v. UNITED STATES. 223 220 Opinion of the Court. the evidence complained of.” The case is here on certiorari. 273 U. S. 685. In support of the rulings below, the United States cites Commonwealth v. Ervine, 8 Dana (Ky.) 30; People n. Jacobs, 165 App. Div. 721; State v. Carta, 90 Conn. 79; People v. Boyd, 67 Cal. App. 292, 302; and People v. Steinmetz, 240 N. Y. 411. The arguments for admissibility to be gleaned from these cases are that the introduction of the withdrawn plea shows conduct inconsistent with the claim of innocence at the trial; that the plea is a statement of guilt having the same effect as if made out of court; that it is received on the principle which permits a confession of the accused in a lower court to be shown against him at his trial in the higher court; that it is not received as conclusive, and, like an extra-judicial confession, it is not sufficient without other evidence of the corpus delicti. It is sometimes likened to prior testimony of the defendant making in favor of the prosecution. Other decisions support the petitioner’s contention that a plea of guilty withdrawn by leave of court is not admissible on the trial of the issue arising on the substituted plea of not guilty. Heim v. United States, 47 App. D. C. 485; State v. Meyers, 99 Mo. 107, 119; People v. Ryan, 82 Cal. 617; Heath v. State, 214 Pac. (Okla.) 1091. And see White v. State, 51 Ga. 286, 290; Green v. State, 40 Fla. 474, 478. We think that contention is sound. A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required ; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences. When one so pleads 224 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. he may be held bound. United States v. Bayaud, 23 Fed. 721. But, on timely application, the court will vacate a plea of guilty shown to have been unfairly obtained or given through ignorance, fear or inadvertence. Such an application does not involve any question of guilt or innocence. Commonwealth v. Crapo, 212 Mass. 209. The court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for any reason the granting of the privilege seems fair and just. Swang v. State, 2 Coldw. (Tenn.) 212; State v. Maresca, 85 Conn. 509; State v. Nicholas, 46 Mont. 470, 472; State v. Stephens, 71 Mo. 535; People v. McCrory, 41 Cal. 458, 461; State v. Coston, 113 La. 717, 720; Bishop’s New Criminal Procedure, § 747. The effect of the court’s order permitting the withdrawal was to adjudge that the plea of guilty be held for naught. Its subsequent use as evidence against petitioner was in direct conflict with that determination. When the plea was annulled it ceased to be evidence. By permitting it to be given weight the court reinstated it pro tanto. Heim v. United States, supra, 493. The conflict was not avoided by the court’s charge. Giving to the withdrawn plea any weight is in principle quite as inconsistent with the prior order as it would be to hold the plea conclusive. Under the charge, if the plea was found not improperly obtained, the jury was required to give it weight unless petitioner was shown to be innocent. And if admissible at all, such plea inevitably must be so considered. As a practical matter, it could not be received as evidence without putting petitioner in a dilemma utterly inconsistent with the determination of the court awarding him a trial. Its introduction may have turned the scale against him. “ The withdrawal of a plea of guilty is a poor privilege, if, notwithstanding its withdrawal, it may be used in evidence under the plea of not guilty.” White v. State, supra, 290. It is beside the U. S. V. STONE & DOWNER CO. 225 220 Syllabus. mark to say, as observed by the Circuit Court of Appeals, that petitioner knew better than any one whether or not he was guilty and that under the evidence a plea of guilty was a reasonable thing. These suggestions might bear upon the weight of admissible evidence but they have no relation to the admissibility of a withdrawn plea. Courts frequently permit pleas of guilty to be withdrawn and pleas of not guilty to be substituted. We have cited all the decisions, state and federal, which have come to our attention, that pass on the question here presented. The small number indicates that in this country it has not been customary to use withdrawn pleas as evidence of guilt. Counsel have cited no case, and we have found none, in which the question has been considered in English courts. We think the weight of reason is against the introduction in evidence of a plea of guilty withdrawn on order of court granting leave and permitting the substitution of a plea of not guilty. Judgment reversed. Mr. Justice Stone concurs in the result. UNITED STATES v. STONE & DOWNER COMPANY ET AL. CERTIORARI TO THE UNITED STATES COURT OF CUSTOMS APPEALS. No. 150. Argued February 24, 1927.—Decided May 16, 1927. 1. A judgment of the Court of Customs Appeals deciding the classification of goods and the duty upon their importation is not res judicata, estopping the Government, upon another importation of the same kind of goods by the same importer. P. 230. 2. This rule was established by the Court of Customs Appeals during the years succeeding its creation when its jurisdiction over such customs cases was exclusive and final, and for that reason and 55514°—28--15 226 OCTOBER TERM, 1926. Counsel for the .United States. 274 U. S. because of the wisdom of the rule as applied to the peculiar subject matter, this Court upholds it. P. 235. 3. In par. 18 of the Emergency Tariff Act of May 27, 1921, imposing duties on “ wool, commonly known as clothing wool,” the term “ clothing wool ” is to be interpreted in its natural and usual meaning of wool used in making clothing and not in its commercial or trade meaning of wool used in the carding process, as distinguished from that used in the combing process, in the making of yam. P. 237. 4. The rule giving controlling weight to commercial or trade meanings of words designating particular kinds of goods in tariff acts, is but an aid in ascertaining the intent of Congress and must yield where the words used and the history and manifest object of the provision show clearly that other meanings were intended. Pp. 239, 247. 5. In this instance, the words “ commonly known as,” evince an intention to adopt the common meaning of “ clothing wool,” in accord with the purpose of Congress to protect the wool market in this country and increase the revenue, while acceptance of the trade meaning of “ clothing wool ” would permit combing wool, constituting one-half of the wool of which clothing is made, to be imported free of duty, in defeat of that purpose. P. 248. 6. Testimony of expert witnesses is admissible to prove the ordinary meaning of the terms “ clothing wool,” and “ carpet wool,” used in a tariff classification. P. 245. 12 Cust. Appls. 557, reversed. Certiorari (269 U. S. 542) to a judgment of the Court of Customs Appeals which affirmed the Board of General Appraisers, G. A. 8842, 46 T. D. 142, in classifying certain importations of wool in the fleece and in yarn and in cloth as entitled to free entry, under the Tariff Act of October 3, 1913, and as not subject to duty as “ clothing wool” and manufactures thereof, under paragraphs 18 and 19 of the Act of May 27, 1921. The judgment of the Board sustained protests of the importers against assessments made by the collector under the latter enactment. The importations in this case were nine in number. In a previous case, not reviewed here, there were thirteen. See 12 Cust. Appls. 557; G. A. 8613; T. D. 141. The U. S. v. STONE & DOWNER CO. 227 225 Argument for Respondents. issue was exactly the same in both cases, except that the thirteenth importation in the first case was conceded by all parties- to come within pars. 18 and 19. By error, the opinion originally filed treated the second case as involving the same number of importations. A petition for rehearing was submitted and denied, but the error as to the number of importations was corrected by order of Court, October 10, 1927. Mr. William W. Hoppin, Special Assistant to the Attorney General, with whom Solicitor General Mitchell and Assistant Attorney General Lawrence were on the brief, for the United States. Mr. Edward P. Sharretts for respondents. Congress in prior tariff acts has recognized the classification of wool into clothing wool, combing wool and carpet wool. Tariff Act of 1867, c. 197, 14 Stat. 559; Tariff Act of 1883, c. 121,22 Stat. 488; Tariff Act of 1909, 38 Stat. 11. If it has been its purpose to designate wool used in the manufacture of wearing apparel, it is obvious that the term “clothing wool” would have been the last term adopted, knowing as it must be presumed Congress did know, its legislative history and the fact that this particular term was in general common use among those to whom the law was directed, and who would necessarily have to conduct their business under it. The mere fact that the term is widely used, discussed and defined in official publications of the federal government, would in itself leave no doubt as to what Congress understood to be its scope and meaning. As late as May 26, 1924, the Treasury Department in a regulation required importers to classify clothing wool and combing wool separately on their customs entries. Cf. T. D. 40217 (45 Treas. Dec. 670); United States v. Buffalo Nat. Gas Fuel Co., 78 Fed. 110; aff’d 172 U. S. 339; Merck v. 228 OCTOBER TERM, 1926. Argument for Respondents. 274 U.S. United States, 6 Ct. Cust. Appls. 32. Obviously the commercial understanding could not be excluded without excluding the only meaning in which the term is ever understood or used. The union of these various sources in a common definition simply established what already existed. Swan v. Arthur, 103 U. S. 597. Raw wool because of its very nature exists only as an article of commerce. Laws imposing duties upon imported merchandise are intended for practical use and application by men engaged in commerce and presumably are drafted in language understood by those to whom they are necessarily directed. In re Two Hundred Chests of Tea, 9 Wheat. 438; Elliott v. Swartout, 10 Pet. 137; United States v. Davies, 11 Ct. Cust. App. 392; Cooper v. Dobson, 157 U. S. 148; United States v. Hopewell, 51 Fed. 798. If the phrase “ usually known.” in the provision involved in Cooper v. Dobson did not make the meaning of the term “ combing wool ” ambiguous, there is no reason why the synonymous phrase “ commonly known ” should make the same term ambiguous in the present enactment. Even where the terms of an act are obscure or ambiguous, this Court has never authorized an indiscriminate search for intent through the journals of the legislature. Duplex Co. v. Deering, 254 U. S. 443; Pennsylvania R. Co. v. International Coal Co., 230 U. S. 184. It must be presumed that the assessment of duty on clothing wool met the emergency just as Congress intended that it should, and provided the intended protection, and that an assessment of duty on “ combing wool ” was not deemed necessary or expedient in order to accomplish the purpose. Chung Fook v. White, 264 U. S. 443; United States n. Citroen, 223 U. S. 407; Pennington v. Coxe, 2 Cr. 33. It is useless for petitioner to attempt to show that it was the policy of the Government to include what the statute omits. United States v. First Nat, Bank, 234 U. S, 245. U. S. v. STONE & DOWNER CO. 229 225 Opinion of the Court. Even if there was no good reason why combing wool should have been omitted, that would not constitute a reason for its being interpolated by the Court. Bates Ref. Co. v. Sultzberger, 157 U. S. 1. The rule against enlarging the subject-matter of a statute by judicial interpretation has been applied with great particularity in the case of statutes levying taxes including customs duties. Eidman v. Martinez, 184 U. S. 578; Gould v. Gould, 245 U. S. 151; United States v. Merriam, 263 U. S. 179; Partington v. Atty. Gen., L. R. 4. If the present question were one of doubt, the doubt would be resolved in favor of the importer. American Net Twine Co. v. Worthington, 141 U. S. 468; Hartranft v. Weigmann, 121 U. S. 609; Benziger v. United States, 192 U. S. 38. The doctrine of res judicata has a clear application to the case at bar. Mr. Chief Justice Taft delivered the opinion of the Court. This is a proceeding by certiorari to review the judgment of the Court of Customs Appeals in the classification for duty of nine importations of wool in the fleece, one of cloth and one of yarn. 12 C. Cust. App. 557. The certiorari was granted by this Court October 12, 1925, 269 U. S. 542, a certificate of importance by the Attorney General under § 195 of the Judicial Code, as amended August 22, 1914, c. 267, 38 Stat. 703, having been filed in the Court of Customs Appeals before the case was decided in that court. A similar case between the same parties, involving the same questions and importations of similar merchandise, was decided adversely to the Government by the Court of Customs Appeals on November 17, 1923, Stone & 230 OCTOBER TERM, 1926. Opinion of the Court. 274U.S. Downer Co. v. United States, 12 Court of Customs Appeals Reports 62; 45 Treasury Decisions 167, T. D. 40019. In that case, however, there was no certificate of importance filed by the Attorney General, and no application was made for a writ of certiorari. The case as now presented to this Court involves two questions. First, Is the judgment of the Court of Customs Appeals, in November, 1923, involving the same customs classification an estoppel by res judicata against the Government? Second, If it does not so operate, was the Court of Customs Appeals right in holding that the importations of wool herein are entitled to come in as wool of the sheep under the Tariff Act of October 13, 1913 (c. 16, 38 Stat. 114), and not as clothing wool under paragraph 18 of the Emergency Tariff Act of May 27, 1921 (c. 14, 42 Stat. 9, 10)? First Question. It is settled in this Court that the general rule by which a judgment estops the parties in future litigation between them, to question either a fact or a point of law necessary to the first judgment and adjudicated therein, applies to cases of taxation as well as to other subjects of litigation. This was decided in the case of New Orleans v. Citizens’ Bank, 167 U. S. 371. That was a tax suit, and the issue was whether the judgment of a court of competent jurisdiction, in holding that the Citizens’ Bank had exemption by contract from certain taxation, was res judicata and estopped the city from attempting to enforce subsequent taxes contrary to the same exemption. The Court, through Mr. Justice White, said (p. 396): “ The proposition that because a suit for a tax of one year is a different demand from the suit for a tax for another, therefore res judicata can not apply, whilst admitting in form the principle of the thing adjudged, in U. S. v. STONE & DOWNER CO. 231 225 Opinion of the Court. reality substantially denies and destroys it. The estoppel resulting from the thing adjudged does not depend upon whether there is the same demand in both cases, but exists, even although there be different demands, when the question upon which the recovery of the second demand depends has under identical circumstances and conditions been previously concluded by a judgment between the parties or their privies.” This is not the rule in a number of the States. City of Newport v. Commonwealth, 106 Ky. 434; Louisville Bridge Co. v. City of Louisville, 81 Ky. 189; Bank v. Memphis, 101 Tenn. 154; State v. Bank, 95 Tenn. 221, 231; Georgia Railroad <& Banking Co. v. Wright, 124 Ga. 596, 603; Michigan Southern, etc. R. R. v. People, 9 Mich. 448, 450; L. S. & M. S. R. R. v. People, 46 Mich. 193, 208; C. B. & Q. R. R. v. Cass County, 72 Neb. 489, 491; Adams v. Yazoo & Miss. R. R., 77 Miss. 194, 266; State v. American Sugar Refining Co., 108 La. 603. Judge Cooley in his work on Taxation, 8th ed., says, at pages 2648-9, that the state courts, differing from this Court, do not generally regard an adjudication as to taxes for one year as making the decision of the supporting points res judicata for the following years. We have held that where, in a federal court, a judgment of a state court in a tax case is pleaded in a subsequent tax case arising in a federal court, the estoppel from the judgment of the state court will not be given greater effect than it would have in the state court, and that a judgment not operating as res judicata in suits for taxes for another year in the state court will not be an estoppel in a federal court for subsequent years. Phoenix Fire and Marine Insurance Co. v. Tennessee, 161 U. S. 174; Covington v. First National Bank of Covington, 198 U. S. 100. The question here differs from that presented in ordinary tax suits, and involves the effect of an adjudication 232 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. of a peculiar character. Prior to the passage of the McKinley Tariff Administrative Act, approved June 10, 1890 (c. 407, 26 Stat. 131, 136, § 12), litigation over the collection of duties and the classification of importations under tariff acts was carried on by suits against the collectors who imposed the duties and was in the form of an action against the collecting official as an individual. After the judgment was obtained, the collecting officer was relieved from personal obligation and the judgment was paid from the Treasury of the United States. See U. S. Rev. Stat., §§ 3009-3014. In 1890, new machinery was introduced by which a board of nine general appraisers was created which, sitting in divisions of three, constituted in a sense administrative courts of appeals to pass on questions of classification and the imposition of duties; and appeals were allowed from it to the proper circuit court of the United States, whence, upon an allowance of an appeal by the circuit court, the cases came to this Court. By the Act of 1891, creating circuit courts of appeals (26 Stat. 826, c. 517, § 6), these cases went by appeal to those courts, and then by certiorari to this Court. By the Tariff Act of August 5, 1909 (36 Stat. 11, 105, § 29), another change was made by which appeals from the decisions of the Board of General Appraisers were allowed to a new court created by the act, called the Court of Customs Appeals, and by that act the whole question of classification and refunding of duties was taken out of the jurisdiction of the regular federal judiciary. The classification by the Court of Customs Appeals was made final, and no appeal was granted to this Court. This independent plan for the settlement of tariff questions, and the complete finality of the decisions of the Court of Customs Appeals in that field of litigation, lasted until August, 1914, when, by the Act of August 22 of that year (c. 267, 38 Stat. 703), a limited review by writ of certiorari was given to this Court of judgments of the U. S. v. STONE & DOWNER CO. 233 225 Opinion of the Court. Court of Customs Appeals, in cases in which the construction of the Constitution, or any part thereof, or any treaty made pursuant thereto, was drawn in question, and in any other case when the Attorney General of the United States should, before the decision of the Court of Customs Appeals was rendered, file with the court a certificate that the case was of such importance as to render expedient its review by this Court. For five years, however, the Board of General Appraisers and the Court of Customs Appeals between them exercised complete jurisdiction in the construction of tariff acts and the determination of the amount due as duties from every importation coming into the country. By the Act of 1909 (36 Stat. 105) the court was given power “ to establish all rules and regulations for the conduct of the business of the Court and as might be needful for the uniformity of decisions within its jurisdiction as conferred by law.” It was by the law to exercise exclusive appellate jurisdiction in all cases as to the construction of the law and the facts respecting the classification of merchandise and the rate of duty imposed thereon under such classification, and the fees and charges connected therewith, and all appealable questions as to the jurisdiction of the Board of General Appraisers, and all appealable questions as to the laws and regulations governing the collection of the customs revenues; and the judgment or decrees of said Court of Customs Appeals were made final in all such cases, (p. 106) . It was thus for five years put in a position where it must not only make its own rules, but it must determine, as a practical matter, what should be the conclusive effect of its own judgments in the determination of questions of fact and statutory construction and classification, in subsequent cases brought before it by the same parties and presenting similar issues. In the exercise of this jurisdiction, it established the practice that the finding of fact and the construction of the statute and classification 234 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. thereunder, as against an importer, was not res judicata in respect of a subsequent importation involving the same issue of fact and the same question of law. In Beuttell & Sons v. United States, 8 U. S. Court of Customs Appeals Reports, 409, the question was whether machine-made Wilton rugs were dutiable under par. 300 of the Tariff Act of 1913, or under par. 294 by virtue of par. 303 of that act. In delivering the opinion of the court, Judge Barber, who has been a member of the court since its organization, in 1909, used this language: “At the outset it should be noted that the precise issue here has been before and decided by this court in Beuttell cfc Sons v. United States (7 Ct. Cust. Appls., 356; T. D. 36905). The Government, being of opinion that such issue, which was there decided adversely to its contention, ought again to be here considered, and following a recognized practice in customs litigation, has made up a new record, which for practical purposes results as a retrial of the former case.” It is clear that this has been the practice since the beginning of the court. See Stone & Downer Co. v. United States, 4 U. S. Court of Customs Appeals, 47. In United States v. Hearst Company, 49 Treasury Decisions, 854, T. D. 41584, the court said: “ Precisely the same kind of merchandise was under consideration in Hearst & Company v. United States, 12 Court of Customs Appeals, 81; T. D. 40021. The record of the evidence in that case is incorporated in this and it is agreed that this case is, in effect, a retrial of the issues involved in that upon additional testimony introduced on behalf of the government, none having been offered by it in the earlier case.” Provision for just such rehearings was made in the rules of procedure and practice adopted by the Board of General Appraisers (35 Treasury Decisions, 113, Rule 22) as follows: ü. S. v. STONE & DOWNER 00. 23a 225 Opinion of the Court. “Where a question of the classification of imported merchandise is under consideration for decision by any one of the boards and the decision has been previously made involving the classification of goods of substantially the same character, the record and testimony taken in the latter case may, within the discretion of the board, be admitted as evidence in the pending case on motion of either the Government or the importer or on the board’s own order: Provided, That either party may have any one or more of the witnesses who testified in such case summoned for re-examination or cross-examination as the case may be. The rule shall, furthermore, apply to the printed records which may have been acted on by the courts in the case of appeals taken from the decisions of the board.” There would seem to be an analogy between the proper respect of this Court for the conclusion of the Court of Customs Appeals upon the question of the estoppel of its own decisions, when it was an independent court not subject to review by this Court, and our respect for judgments of the state courts, in limiting the application of the estoppel of their decisions in tax cases, and unless some controlling reason exists why we should overrule the established practice in this matter of the Court of Customs Appeals, now that the power of review of some of its judgments has been given us, we should follow it. We think that, not only was it within the power of the Court of Customs Appeals to establish the practice, but that it was wise to do so. The effect of adjudicated controversies arising over classification of importations may well be distinguished from the irrevocable effect of ordinary tax litigation tried in the regular courts. There of course should be an end of litigation as well in customs matters as in other tax cases; but circumstances justify limiting the finality of the conclusion in customs controversies to the identical importation. The business of importing is carried on by large houses between whom and 236 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. the Government there are innumerable transactions, as here for instance in the enormous importations of wool, and there are constant differences as to proper classifications of similar importations. The evidence which may be presented in one case may be much varied in the next. The importance of a classification and its far-reaching effect may not have been fully understood or clearly known when the first litigation was carried through. One large importing house may secure a judgment in its favor from the Customs Court on a question of fact as to the merchandise of a particular importation, or a question of construction in the classifying statute. If that house can rely upon a conclusion in early litigation as one which is to remain final as to it, and not to be reheard in any way, while a similar importation made by another importing house may be tried and heard and a different conclusion reached, a most embarrassing situation is presented. The importing house which has, by the principle of the thing adjudged, obtained a favorable decision permanently binding on the Government will be able to import the goods at a much better rate than that enjoyed by other importing houses, its competitors. Such ,a result would lead to inequality in the administration of the customs law, to discrimination and to great injustice and confusion. In the same way, if the first decision were against a large importing house, and its competitors instituted subsequent litigation on the same issues, with new evidence or without it, and succeeded in securing a different conclusion, the first litigant, bound by the judgment against it in favor of the Government, must permanently do business in importations of the same merchandise at great and inequitable disadvantage with its competitors. These were doubtless the reasons which actuated the Court of Customs Appeals when the question was first presented to it to hold that the general principle of res judicata should have only limited application to its judg- U. S. V. STONE & DOWNER CO. 237 225 Opinion of the Court. ments. These are the reasons, too, why. the principle laid down by this Court in the decision already referred to, in New Orleans v. Citizens’ Bank, 167 U. S. 371, should not apply or control. There, the thing adjudged was the existence of an immunity of the property of a bank from taxation, due to a contractual obligation of the state or city government to the bank,—a personal relation which might without embarrassment and with much more safety be permanently fixed for one tax payer than a question of fact or law affecting discriminatingly one of a whole class of importers and giving the exceptional operation in its favor of a general tariff on articles of merchandise largely imported. The fact that objection to the practice has never been made before, in the history of this Court or in the history of the Court of Customs Appeals in eighteen years of its life, is strong evidence not only of the wisdom of the practice but of general acquiescence in its validity. The plea of res judicata can not be sustained in this case. Second question. Paragraph 18 of the Emergency Tariff Act of May 27, 1921, c. 14, 42 Stat. 9, 10, under which the wool was classified for duty herein, is as follows: “Wool, commonly known as clothing wool, including hair of the camel, angora goat, and alpaca, but not such wools as are commonly known as carpet wools: Unwashed, 15 cents per pound; washed, 30 cents per pound; scoured, 45 cents per pound. . . .” Paragraph 19 is as follows: “ Wool and hair of the kind provided for in paragraph 18, when advanced in any manner or by any process of manufacture beyond the washed or scoured condition, and manufactures of which wool or hair of the kind provided for in paragraph 18 is the component material of chief value, 45 cents per pound in addition to the rates of duty imposed thereon by existing law.” The respondents claim, and the Court of Customs Appeals held, that all but one of these importations in the 238 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. fleece were entitled to free entry under par. 650 of the free list of the Tariff Act of October 3,1913, c. 16, 38 Stat. 114, 164, as follows: “ 650. Wool of the sheep, hair of the camel, and other like animals, and all wools and hair on the skin of such animals, and paper twine for binding any of the foregoing. ...” and that yarn of the importations was dutiable only under par. 287, p. 142, as follows: “ 287—Yarns made wholly or in chief value of wool, 18 per centum ad valorem.” Wool clothing is made from wool yarn prepared either by the carding process or by the combing process. The adaptability of the raw wool for one or the other is determined chiefly by the length of the staple, so that wools used for clothing are often described in the trade as short wools or long wools. The exact question is whether paragraph 18 includes in the term clothing wool, long staple or combing wool as well as short staple or carding wool. They are both used in clothing. Carpet wools are ordinarily not used for clothing. They are generally too coarse for that purpose but are well adapted and generally used for the making of carpets. They are not grown in the United States, so that there is no motive for putting a tariff on them to protect domestic growers or the home markets. In the case between the same parties, presenting the same issues in 1923, the Board of General Appraisers by a majority of two to one gave judgment for the Government. Stone & Downer Co. v. United States, 43 Treasury Decisions, 141, T. D. 39473. One held that the words “ wool commonly known as clothing wool ” must be given their ordinary non-trade meaning of wool used for clothing, and therefore included both carding and combing wools. His view was that evidence of the technical or commercial meaning of clothing wool was not relevant and U. S. V. STONE & DOWNER CO. 239 225 Opinion of the Court. was excluded by the words “ commonly known as.” The other General Appraiser, supporting the Government view, examined the evidence at length and found from it that the first great division among wools was between clothing wools and carpet wools, and that while, in the trade, clothing wools were divided into and were distinguished commercially as clothing wools and combing wools, the expression “ commonly known as clothing wool,” as testified by competent witnesses of large experience, included wool for clothing, whether treated by the carding or combing process. The Customs Court, on appeal, held that if there was a trade term to determine classification under a tariff act, the overwhelming weight of authority showed that it must prevail over the ordinary meaning if different, and that under this rule of construction clothing wool was wool used in the carding process, as distinguished from that used in the combing process, in the making of cloth. Stone & Downer Co. v. United States, 12 Court of pustoms Appeals Reports, 62’. When the case now in hearing came before the Board of General Appraisers, the Board unanimously gave judgment for the importers, following the previous judgment of the Court of Customs Appeals on the same issues in the case presented in 1923, and this action was affirmed by the Court of Customs Appeals. United States v. Stone & Downer Co., 12 Court of Customs Appeals Reports, 557. The record contains all the evidence in the first case, and the new evidence introduced by the Government in the second case, in accord with Rule XXII of the Board of General Appraisers, already referred to. In this case, as in every other involving the interpretation of a statute, the intention of Congress is an all important factor. The greatest light is thrown on that intention in this case by an examination of the existing conditions and the anticipated evils against which by this legislation Congress sought to protect the country. 240 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. When the Emergency'Tariff Act was passed, we had been through the greatest war of history and were attempting to return to peace conditions, and had reached a time, in 1920, when business was bad and financial disaster threatened. The result of the Congressional elections in November, 1918, was to change the political complexion of the House and Senate. Before that Congress finished its term, in the winter of 1920^-1921, an emergency tariff bill was introduced to relieve the agricultural depression which was at hand. Such a bill went through Congress, but was vetoed. The National administration changed on the succeeding 4th of March, 1921. With a new Congress and new Executive, another emergency tariff bill like the one already vetoed was introduced. The Committee on Ways and Means of the new House of Representatives, in recommending the passage of the bill (1 House Reports, 67th Congress; 1st Session, page 1), commented on the serious obstacles to the revival of industry in the paralysis of agriculture. It pointed out that the purchasing power of the farmers had been in large part destroyed and must be restored, and called attention to the fact that we were in the grip of a nation-wide industrial and business depression, and that agriculture was hardest hit. Coming then to the subject of wool, as one of the agricultural products needing legislative aid, the report said: “(1) In previous years the average production of wool in the United States was 314,000,000 pounds and average imports 203,000,000 pounds. “During the war imports increased in response to increased manufacturing to about 445,893,000 pounds in 1919, and declined to 259,618,000 pounds in 1920. “(2) Both importation and consumption of wool have decreased since May. However, there has been a large increase for January and February, 1921. Importations U. S. V. STONE & DOWNER CO. 241 225 Opinion of the Court. in recent months appear to be speculative, in anticipation of tariffs. “(3) The stocks of wool on hand were large when the price slump came last May. To the stocks on hand was added the new clip of 280,000,000 pounds. “(4) The accompanying tables show the wool supply in sight to be near 1,000,000,000 pounds. The normal consumption is about 600,000,000 pounds, with about 400,000,000 pounds carried as stock. A year’s supply is in sight at normal consumption. At the present rate of consumption (about two-thirds normal) the supply would be sufficient for a year and a half. “(5) The effect of an embargo or high tariff would be to gradually increase the prices. “ The justification for an emergency tariff is: “(a) A fundamental industry that it takes years to develop is facing ruin. “(b) The prosperity of large numbers of people, not sheep growers, is dependent on the sheep industry. Hence, merchants and bankers who have made large advances to sheep producers are in serious financial trouble and favor a wool tariff. “(c) At present the supply of wool in the United States is approximately 650,000,000 pounds, of which 175,000,000 pounds is held by the producers. With the coming 1921 wool clip the amounts controlled by producers would be approximately 450,000,000 pounds, while the dealers would hold approximately 500,000,000 pounds. Therefore, the benefit derived from a tariff would be equally divided between producers and the dealers and manufacturers. Undoubtedly any tariff on wool would reflect in the price of finished goods and the charge passed on to the consumer. “(d) Wool dealers who purchased wool stocks at higher prices than now obtain are in serious financial straits and would be directly benefited. Forced liquida- 55514°—28--16 242 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. tion on the part of wool dealers would make the present bad situation worse and break a trade organization of value to agriculture. “(e) It can be shown that the price of wool is so small a factor in the ultimate cost of manufactured goods that no large burden need be placed on the consuming public.” The same report was adopted without change by the Finance Commitee of the Senate in recommending the bill to that body. 1 Senate Reports, 67th Congress, 1st Session, page 6. The bill passed both Houses and was approved May 27, 1921. The situation as set forth in the Ways and Means Report, as to the wool market of the World in 1921, was confirmed in a pamphlet issued by the United States Tariff Commission at Washington in 1922, on “Recent Tendencies in the Wool Trade,” in which it said (p. 1): “For the pre-war years 1909 to 1913, inclusive, the world’s annual production of raw wool averaged approximately 3,335,242,000 pounds, of which about 30 per cent, was carpet wools. Of this amount 587,350,000 pounds were produced in South America, 157,761,000 in South Africa, and 903,620,000 in Australasia, the three great exporting regions which supply the deficiencies in production of clothing wools of western Europe and North America. For 1921, world production is estimated at 2,770,852,000 pounds, of which the three exporting regions above mentioned are credited with 491,269,000 pounds, 127,177,000 pounds and 798,443,000 pounds, respectively, or a decline in these areas of 231,000,000 pounds from pre-war production.” (The italics are ours.) The Emergency Tariff Act, so designated by its terms, was Title I of the law of Congress of May 27, 1921, c. 14, which as a whole was entitled: “An Act Imposing temporary duties upon certain agricultural products to meet present emergencies, and to U. S. v. STONE & DOWNER CO. 243 225 Opinion of the Court. provide revenue; to regulate commerce with foreign countries; to prevent dumping of foreign merchandise on the markets of the United States; to regulate the value of foreign money; and for other purposes.” The Emergency Tariff Act imposed for the period of six months from the date of the Act, May 27, 1921, a tariff on the following articles: wheat, flour, flax seed, corn and maize, beans, peanuts, potatoes, onions, rice, lemons, vegetable oils, sheep, beef, veal; mutton and lamb, cotton and manufactures of cotton, in its paragraphs 18 and 19 on wool, on sugars, butter, cheese, milk, wrapper and filler tobacco, apples, cherries, olives. Title II directed an investigation into the question whether any industry of the United States is likely to be injured by dumping of foreign goods upon our markets at less than market value. It provided for a special dumping duty and a means of determining what that should be, and it made that title the Anti-Dumping Act. Title V provided for an increased duty on dyes and chemicals, which title was to be known as the Dye and Chemical Control Act. The whole act was directed to protecting the markets of the United States from being swamped by importations from abroad, and to increasing the revenue. Congress proposed to keep the wool market free from demoralization in the interests of the wool growers of the country, on the one hand, and the owners of wool stocks on hand in the country, on the other. It was asserted in the argument on behalf of the Government, and the assertion was acquiesced in by counsel for the importers, that at least half in weight and value of the importations of wool from which clothing is made is combing wool. The contention of the importers in this case, if successful, would therefore bring about the result that half, both in weight and in value, of the foreign wool in competition with wool produced in the 244 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. United States and with the stocks of wool on hand in the United States, would not be kept out of its markets by the emergency tariff at all, and that the swamping of the domestic wool markets to that extent would continue under the free importation of combing wools. More than this, such combing wools as would come in under the emergency tariff, if construed as the Government contends, would produce as much revenue as the carding wools,. and yet, by the importers’ construction that revenue would be lost. If the language of the statute is such that such results can not be avoided, of course it must be enforced accordingly. If Congress by its language has made a mistake, and so has failed in its purpose, this Court can not supply by its decision the omission of a necessary legislative provision to effect its purpose. With the intent of the Act clearly in mind, however, we must see whether it is true that the language used can only bear the construction insisted upon by the importers and upheld by the Court of Customs Appeals, or whether there is a broader and more reasonable construction that can be fairly placed upon the statute which will serve the plain Congressional purpose.. From the 500 pages of the evidence, we find that, in the custom of the trade, the term “clothing wool” applies to the short staple wool which is suitable for carding and which goes into what is known as the woolen or felting process for making cloths of that character, and the term “combing wool” refers to wool of longer staple which goes into another process known as combing for making worsted cloths; that in the trade, clothing wool and combing wool are thus contrasted; second, that originally the worsted process could not be used with the fine wools like the merino wools, because the staple was not long enough; but that the development of combing machinery, particularly what is called the French U. S. V. STONE & DOWNER CO. 245 225 Opinion of the Court. combing process, has enabled manufacturers to comb wool of shorter staple than formerly, and to make it into worsteds; and that, in addition to this, cross breeding between the merino and other wools has increased the length of the staple and the amount of available combing wools as compared with the carding wools, so that the border line between the use of combing wools for clothing and that of carding wool has changed; that the definitions in the principal dictionaries and encyclopedias set forth the same trade distinction between clothing wool and combing wool, as between manufactures of wool, and manufactures of worsteds; that both clothing wool and combing wool are largely grown in this country. The expert witnesses of the importers generally testified that there was no other meaning for clothing wool but carding wool. There was other substantial evidence, however, from expert witnesses for the Government, of large experience in dealing in wool, who testified that, speaking generally, and in ordinary parlance, wools were divided into clothing wools and carpet wools with reference to their chief use, and that it was only in the trade in the grading and sorting of wools and in their purchase and sale that the term clothing wool was distinguished from combing wool. The competency and relevancy of such evidence as to the ordinary meaning of language in tariff classifications is sustained by the decision of this Court in Robertson v. Salomon, 130 U. S. 412, 415. The natural and usual meaning of the words “ clothing wool ” is wool for clothing. That is what the non-expert reader of the words would understand until he was advised of a different meaning by reason of the language of the trade. When, therefore, the words are used “ commonly known as clothing wools,” the ordinary inference from the collocation of the words is that they refer to wool that is used in making clothing. If Congress had intended that the words “ clothing wool ” should have their commercial 246 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. designation, it would simply have used the words without qualification or it would have said “ commercially known as.” It would not have used the pnrase “ commonly known fits.” The phrase indicates not only that clothing wool is used in its ordinary or non-expert meaning, but is to serve the same purpose as the same phrase in connection with carpet wools, in the same clause, by indicating that, while these wools were capable of use for other than clothing and carpets, respectively, they were to be classified by reference to their chief use. In the world view which the committee report shows clearly that the Congress was taking of the wool market, it was not dealing with the processes by which wool was made into cloth, and distinguishing between them. If it had wished to make a distinction based on the process of manufacture rather than on the material which was to be used, it certainly would not have included, as expressly within the operation of paragraph 18, the hair of the camel, the angora goat and the alpaca; for in preparing those materials for the making of cloth the hair is always combed and never carded. It had chiefly in mind, as shown by the contrast made in paragraph 18, the distinction between wool which was made into carpets and could not be grown in the United States, and wool made into clothing which could be, and was, grown in the United States and in England and on the continent and in South America, Australasia and South Africa. The world view of the production of wools which affected Congress in enacting this legislation is also revealed in the passage from the Tariff Commission report, which we have already quoted, where it refers to South America, South Africa and Australasia as “ the three great exporting regions which supply the deficiencies in production of clothing wools of western Europe and North America.” This use of the words “ clothing wools ” of course is used only in contrast to the carpet wools which together with the cloth- U. S. v. STONE & DOWNER CO. 247 225 Opinion of the Court. ing wools embrace the whole world production. We do not find it difficult, therefore, in our interpretation of paragraph 18 to give effect to the evident purpose of Congress. We are confronted by counsel for the importers with the language to be found in many of our own cases giving controlling effect in classification of merchandise for duty in tariff acts to trade terms and commercial usage. It is these cases also upon which the Court of Customs Appeals relied in reaching its conclusion. Their principle has nowhere been more strongly stated than by Mr. Justice Gray in the case of Cadwalader v. Zeh, 151 U. S. 171,176: “ It has long been a settled rule of interpretation of the statutes imposing duties on imports, that if words used therein to designate particular kinds or classes of goods have a well known signification in our trade and commerce, different from their ordinary meaning among the people, the commercial meaning is to prevail, unless Congress has clearly manifested a contrary intention; and that it is only when no commercial meaning is called for or proved, that the common meaning of the words is to be adopted.” This statement is supported by a long line of authorities, one of which is Robertson V. Salomon, 130 U. S. 412, 415, in which Mr. Justice Bradley used the following language: “The commercial designation, as we have frequently decided, is the first and most important designation to be ascertained in settling the meaning and application of the tariff laws. See Arthur v. Lahey, 96 U. S. 112, 118; Barber v. Schell, 107 U. S. 617, 623; Worthington v. Abbott, 124 U. S. 434, 436; Arthur’s Executors v. Butterfield, 125 U. S. 70, 75. But if the commercial designation fails to give an article its proper place in the classification of the law, then resort must necessarily be had to the common designation.” 248 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. What we hold here is that Congress, by using the expression “ commonly known as clothing wool,” indicated expressly its intention not to give to the expression “ clothing wool” the commercial designation that it has when used in contrast with combing wool, and that the history of the legislation shows that the trade or commercial meaning is contrary to the purpose of Congress in the enactment of the law. In other words, the authorities upon which the Court of Customs Appeals proceeded we think have no application to the interpretation of this act, save as they recognized that in the last analysis effect must be given to the intention of Congress. It should be noted that the tariff division of wools in 1867 was of three classes. Class 1—Clothing wool, wools which are of merino blood and wools of like character. Class 2—Combing wool, wools which are of the English blood; and the hair of the alpaca, goat and other like animals. Class 3—Carpet wools and other similar wools. These divisions were continued in the Tariff Act of 1883. In the Tariff Act of 1890 and in the Act of 1897, when the duties on wool were restored after the free wool of the Tariff Act of 1894, the division was made into three classes, while the tariff divisions between clothing and combing wools were dropped. Again, in the Act of 1909, there was a division of three classes without reference to the trade division between clothing and combing wools. There may have been other reasons for this change in the acts of 1890, 1897 and 1909, but there were two, already referred to, which were obvious, one arising from the cross breeding of sheep, so that the staple in the merino and like wools was lengthened thereby (see par. 380 of the McKinley Act, c. 1244, 26 Stat. 595), and the other in the improvement in the combing process, so that short wools of the merino blood which before could only be carded and not combed, became combing wools in the U. S. v. STONE & DOWNER CO. 249 225 Opinion of the Court. trade sense and could be used for worsteds as well as for woolen cloths. The merino wools were finer wools; and as they became subject to combing by breeding and mechanical process, their use in making clothing was enlarged and their value was enhanced. See Report of the Tariff Commission on the Wool Growing Industry 1921—pages 428, 448. The result of these changes was that the first class of wools in the acts of 1890, 1897 and 1909, included many combing wools, while the first class under the Act of 1883 was expressly designated as clothing wools. This is illustrated in this case, in which the wools here imported are partly merino wools by the blood and come from South America, and yet twelve of the importations out’ of thirteen are combing wools, while the thirteenth was declared doubtful by the experts and was held to be a clothing wool by the Court of Customs Appeals. A similar change, after 1890, took place in the lessening of importance from a tariff standpoint of the trade distinction between manufactures of wool, the product of carding wool, and manufactures of worsted, the product of combing wool; for while the names of woolens and worsteds were retained in the tariff acts from 1890 on, these were usually classified together for the same duty. In holding as we do in this case that the plain purpose of Congress requires the interpretation of the words in their ordinary rather than their commercial or trade meaning, we find full support in a case which was not cited in the opinions of the courts below or in the briefs of counsel on either side. We refer to the case of United States v. Klumpp, 169 U. S. 209. That case turned on paragraph 297 of the Wilson-Gorman Tariff Act of 1894, 28 Stat. 509, c. 349, passed in Mr. Cleveland’s administration, to take the place of the McKinley Tariff Act of 1890, 26 Stat. 567, c. 1244. The new Act applied to all imports from the date of its passage, August 27, 1894, except merchandise covered by paragraph 297 which read as follows: 250 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. “The reduction of the rates of duty herein provided for manufactures of wool shall take effect January first, eighteen hundred and ninety-five.” The contention of the Government in that case, which both the District Court and the Circuit Court of Appeals had upheld, Murphy v. United States, 68 Fed. 908, 72 Fed. 1008, was that, under the language of the McKinley Act and the previous tariff acts for a great many years, manufactures of wool and manufactures of worsteds were separate subjects of importation, and that paragraph 297 postponing the reduction of duties on manufactures of wool, did not apply to manufactures of worsteds. It had been expressly decided by this Court in Seeberger v. Cahn, 137 U. S. 95, 97, that cloths popularly known as diagonals, and in the trade as worsteds, were subject to duty under the Act of March 3, 1883, as manufactures of worsteds and not as manufactures of wool. It was admitted that the merchandise in controversy was worsted dress goods made from the fleece of the sheep, which had been combed and spun into worsted yarn, and paid a high duty under the McKinley Act. By the Act of May 9, 1890, it was provided that worsted cloths should be classified as, and with, woolen cloths, 26 Stat. 105, c. 200. That, however, seems to have been repealed by the McKinley Act {Murphy v. United States, 72 Fed. 1008, 1009), but though the words wool and worsted continued to be used separately throughout the McKinley Act in description of the various materials for dress goods, they were classified together for duties. There was no doubt about the commercial or trade meaning of manufactures of wool as distinguished from manufactures of worsteds, a distinction which exists today in all woolen and clothing markets. This Court, however, in view of the evident purpose of Congress in the paragraph in question, found that there was no imperative ground for the reinstatement of that trade distinction between manufactures of wool and those of worsted, in construing paragraph 297, although the two terms continued to be U. S. V. STONE & DOWNER CO. 251 225 Opinion of the Court. used separately in the McKinley and in the new Act of 1894. Referring to paragraph 297 and its words “ Manufactures of Wool,” the Court said (p. 215): “ The reason for the postponing of the taking effect of the reduction of duties obviously had nothing to do with the process of manufactures, but related to the material of which the goods were composed, which material had been relieved from duty by paragraph 685 of the act. “ Congress undoubtedly concluded that the manufacturers of goods from wool had laid in a large stock of material, which equitably they should be allowed a reasonable time to work off, and that there was probably on hand a large stock of goods, to dispose of which reasonable time should be allowed, rather than that the large dealers should be induced to bring in foreign goods at a cost which involved ruinous competition; while at the same time the wool growers ought to have their original market until they could adjust themselves to the new condition of things. “ The specific rate was compensatory, and, when stricken out, and the duty on raw material abolished, a postponement was provided for in order to avoid injustice. “ But the reason for postponing the reduction on manufactures of wool, which, on the face of the act, we think properly imputable to Congress, is as applicable to worsted goods as to any other goods fabricated from wool.” And the opinion concludes: “We think that the words ‘ manufactures of wool,’ in paragraph 297, had relation to the raw material out of which the articles were made, and that as the material of worsted dress goods was wool, such goods fell within the paragraph.” We think the Klumpp case very like the one at bar. They both consider the same trade distinction between different clothing wools growing out of the different processes used in the manufacture of the yarn, and reject its application because of Congress’s purpose. In both cases 252 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. the trade distinctions had ceased to be important from a tariff standpoint, and classification was made on a different basis from that of carding or combed wools, or woolen cloth and worsted cloth. The trade distinctions were very important in the transaction of business, but not in the fixing of duties. This Court was able, from the language and the circumstances in the Klumpp case, as it is here, to determine what the purpose of Congress was in the use there of the words “manufactures of wool,” as in the words here, “ wool commonly known as clothing wool.” Seeing clearly that purpose, this Court held, in the Klumpp case, as it holds here, that the case came within the exception to the general rule for the use of trade terms in interpreting tariff acts. The exception was stated by Mr. Justice Gray in Cadwalader v. Zeh, supra—that “ the commercial meaning is to prevail unless Congress has clearly manifested a contrary intention; and that it is only when no commercial meaning is called for or proved, that the common meaning of the words is to be adopted ”; and by Mr. Justice Bradley in Robertson v. Salomon, supra, where he says, after stating the general rule, “ but if the commercial designation fails to give an article its proper place in the classifications of the law, then resort must necessarily be had to the common designation.” In other words, the pole star of interpretation of statutes, whether it be of tariff acts or any other, must be the intention of Congress, when that can be clearly ascertained and is reasonably borne out by the language used. Neither in the briefs presented to us nor in the opinions of the courts below has there been a suggestion of a reason why Congress should have distinguished, in its attempt to avoid the demoralization of the wool markets in this country and to increase the revenue, between carding wool and combing wool. The only argument of the Court of Customs Appeals is, ita lex scripta est; and ZIMMERMANN v. SUTHERLAND. 253 225 Syllabus. the answer to the argument must be, that it is not so written and that the language is easily capable of being construed in accordance with the Congressional intention. What we have said leads to the conclusion that we must reverse the Court of Customs Appeals. Reversed. Mr. Justice McReynolds *is unable to discern any satisfactory answer to the forceful opinion by the Court of Customs Appeals, and thinks that its judgment should be affirmed. In his view, they rightly accepted the statute as written by Congress; the contrary course would have required them to usurp the functions of a legislator and desert those of an expounder of the law. Nearly one hundred years ago Mr. Justice Story announced the fundamental doctrine which no court should forget. “Arguments drawn from impolicy or inconvenience ought here to be of no weight. The only sound principle is to declare, ita lex scripta est, to follow, and to obey. Nor, if a principle so just and conclusive could be overlooked, could there well be found a more unsafe guide in practice than mere policy and convenience.” ZIMMERMANN et al. v. SUTHERLAND, ALIEN PROPERTY CUSTODIAN, et al. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 180. Argued March 1, 1927.—Decided May 16, 1927. In a suit under the Trading with the Enemy Act to satisfy a claim of the plaintiffs as depositors against an Austrian bank (whose property in this country was seized under the Act), the debt being due 254 OCTOBER TERM, 1926. Opinion of the Court. 274U.S. and payable in Austria and governed by the Austrian law, a payment into court there, which by that law operated as a discharge, is a complete defense. P. 255. 7 F. (2d) 443, affirmed. Appeal from a decree of the Circuit Court of Appeals in a suit brought under the Trading with the Enemy Act by depositor-creditors of an Austrian bank, property of which in this country had been seized by the Alien Property Custodian during the war. The District Court awarded a recovery at the rate of exchange on August 12, 1919. The court below reversed this, holding that a deposit of kronen in Austria, April 1, 1920, had operated as a discharge. Mr. Charles E. Hughes, with whom Messrs. Joseph M. Hartfield and Hamilton Vreeland, Jr., were on the brief, for appellants. Mr. Samuel R. Wachtell for appellee Wiener Bank-Verein. Solicitor General Mitchell, Assistant Attorney General Farnum, and Mr. Dean Hill Stanley, Special Assistant to the Attorney General, for appellees Sutherland, Alien Property Custodian, and White, Treasurer of the United States, submitted. Mr. Justice Holmes delivered the opinion of the Court. This is a suit to reach and apply property in the hands of the Alien Property Custodian or the Treasurer of the United States, seized as property of the Wiener Bank-Verein, as allowed by the amendment of The Trading with the Enemy Act of June 5, 1920, c. 241; 41 Stat. 977. The appellants were the plaintiffs. Before the late war they were depositors in the Wiener Bank-Verein, and on April 6, 1917, had on deposit 2,063,799.03 kronen. ZIMMERMANN v. SUTHERLAND. 255 253 Opinion of the Court. The war intervened and after the cessation of hostilities the plaintiffs demanded the amount of said kronen on deposit as of April 6, 1917, at the average call rate of exchange for the month preceding the outbreak of war between the United States and Austria Hungary, viz., 11.18 United States cents for each Austrian krone. The General Civil Law of Austria, § 1425, provided that—If a debt could not be paid because of dissatisfaction with the offer or other important reasons the debtor might deposit in court the subject matter in dispute, and that if legally carried out and if the creditor was informed, this measure should discharge the debtor and place the subject matter delivered at the risk of the creditor. The creditor not being satisfied with what the Bank was willing to do, the Bank, on April 1,1920, deposited the amount stated to be due in the proper court, with interest at 2^ per cent., and notified the plaintiffs. It relies upon the deposit as a defence, and the Circuit Court of Appeals held it to be one, 7 Fed. (2d) 443, overruling the decision of the District Court which allowed a recovery at the rate of exchange on August 12, 1919, on the ground that the plaintiffs showed that they wanted their money, although they made no adequate demand, on that day. 2 F. (2d) 629. The decision of the Circuit Court of Appeals was right and in view of the recent case of Deutsche Bank Filiale Nürnberg v. Humphrey, 272 U. S. 517, does not need extended reasoning. Here as there the debt was due and payable in the foreign country. The only primary obligation was that created by the law of Austria-Hungary and if by reason of an attachment of property or otherwise the courts of the United States also gave a remedy the only thing that they could do with justice was to enforce the obligation as it stood, not to substitute something else that seemed to them about fair. The distinction between the Deutsche Bank case and Hicks v. Guin- 256 OCTOBER TERM, 1926. Syllabus. 274 U.S. ness, 269 U. S. 71, is not, as argued, that the plaintiff in Hicks v. Guinness was in the United States, but that, as the Court understood the facts, the debt was payable in New York and subject to American law, so that upon a breach of the contract there arose a present liability in dollars. As the present debt was governed wholly by the law of Austria-Hungary on April 1, 1920, when the deposit was made, it was discharged by the deposit which was substituted as the only object of the creditor’s claim. An elaborate argument is made that the original contract between the parties was dissolved by the war. Such considerations are immaterial when it is realized that in any view of all that had happened the only obligations of the Wiener Bank-Verein were those imposed by the law of Austria-Hungary, and that if that law discharged the debt the debt was discharged everywhere. The plaintiffs argue that they have rights under the Treaty of August 24, 1921, between the United States and Austria. But the short answer is that their rights against the Bank were ended before that treaty was made. They also urge that this is a suit under The Trading with the Enemy Act. But so was Deutsche Bank n. Humphrey. That Act did not turn the Austrian into an American debt and impose a new and different obligation upon the Austrian Bank. Decree affirmed. WESTFALL v. UNITED STATES. CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 766. Argued March 8, 9, 1927.—Decided May 16, 1927. 1. Section 9 of the Federal Reserve Act, as amended June 21, 1917, is constitutional in so far as it provides that state banks which have joined the Federal Reserve System, their officers, etc., shall WESTFALL v. UNITED STATES. 257 256 Opinion of the Court. be subject to the penalties of Rev. Stats. § 5209, which punishes misapplications, etc., of a bank’s funds. P. 258. 2. The acts thus made criminal may be punishable also under the laws of the State. P. 258. 3. It is not a condition to the power of Congress to punish such acts that they result in any loss to the Federal Reserve Banks. P. 258. 4. When necessary in order to prevent an evil, the law may embrace more than the precise thing to be prevented. P. 259. 5. Congress may employ state corporations, with their consent, as federal instrumentalities and make frauds that impair their efficiency crimes. P. 259. Response to a question certified by the Circuit Court of Appeals arising upon a review of convictions under indictments for aiding and procuring misapplication of state bank funds and conspiracy to misapply them. Mr. D. S. Face, with whom Mr. Harry D. Jewell was on the brief, for Westfall. Solicitor General Mitchell, with whom Assistant Attorney General Luhring, Mr. Harry S. Ridgely, Attorney in the Department of Justice, and Mr. Walter Wyatt, General Counsel, Federal Reserve Board, were on the brief, for the United States. Mr. Justice Holmes delivered the opinion of the Court. Westfall was convicted under two indictments, the first of which charged him with aiding and procuring the branch manager of a State bank which was a member of the Federal Reserve System to misapply the funds of the bank. The second indictment charged a conspiracy to misapply the funds of the bank between the same and other parties. Both were based upon the issuing a fraudulent certificate of deposit for ten thousand dollars and the paying the same from the funds of the bank. The Circuit Court of Appeals for the Sixth Circuit certifies this 55514°—28--17 258 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. question: “ Is the provision of section 9, chapter 6, of the Federal Reserve Act of December 23, 1913 [38 Stat. 259, 260,] as amended June 21, 1917 [c. 32, §3; 40 Stat. 232,] and July 1, 1922 constitutional in so far as it provides that 1 such banks and the officers, agents and employees thereof shall also be subject to the provisions of and the penalties prescribed by Section 5209 of the Revised Statutes?’ ” The amendment of July 1, 1922, referred to is, we presume, c. 274; 42 Stat. 821. It has no immediate bearing upon the question propounded and as it is not relied upon in argument we shall leave it on one side. It is not disputed that Rev. Stat. §5209, if applicable, punishes the bank manager, and those who aided and abetted him in his crime. Coffin v. United States, 156 U. S. 432, 447. The argument is that Congress has no power to punish offences against the property rights of State banks. It is said that the statute is so broad that it covers such offences when they could not result in any loss to the Federal Reserve Banks, and it is suggested that if upheld the Act will invalidate similar statutes of the States. This argument is well answered by Hiatt v. United States, 4 F. (2d) 374, 377. Certiorari denied. 268 U. S. 704. Of course an act may be criminal under the laws of both jurisdictions. United States v. Lanza, 260 U. S. 377, 382. And if a state bank chooses to come into the System created by the United States, the United States may punish acts injurious to the System, although done to a corporation that the State also is entitled to protect. The general proposition is too plain to need more than statement. That there is such a System and that the Reserve Banks are interested in the solvency and financial condition of the members also is too obvious to require a repetition of the careful analysis presented by the Solicitor General. The only suggestion that may deserve a word is that the statute applies indifferently UNITED STATES v. SULLIVAN. 259 256 Statement of the Case. whether there is a loss to the Reserve Banks or not. But every fraud like the one before us weakens the member bank and therefore weakens the System. Moreover, when it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so. It may punish the forgery and utterance of spurious interstate bills of lading in order to protect the genuine commerce. United States v. Ferger, 250 U. S. 199. See further, Southern Ry. Co. v. United States, 222 U. S. 20, 26. That principle is settled. Finally, Congress may employ state corporations with their consent as instrumentalities of the United States, Clallam County v. United States, 263 U. S. 341, and may make frauds that impair their efficiency crimes. United States v. Walter, 263 U. S. 15. We answer the question: Yes. UNITED STATES v. SULLIVAN. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. No. 851. Argued April 27, 1927.—Decided May 16, 1927. 1. Gains from illicit traffic in liquor are subject to the income tax. P. 263. 2. The Fifth Amendment does not protect the recipient of such income from prosecution for wilful refusal to make any return under the income tax law. P. 263. 3. If disclosures called for by the return are privileged by the Amendment, the privilege should be claimed in the return. P. 264. 15 F. (2d) 809, reversed. Certiorari (273 U. S. 689) to a judgment of the Circuit Court of Appeals which reversed a judgment of the District Court sentencing Sullivan for wilfully refusing to make a return of net income under the Revenue Act of 1921. 260 OCTOBER TERM, 1926. Argument for the United States. 274 U.S. Assistant Attorney General Willebrandt, with whom Solicitor General Mitchell, and Messrs. A. W. Gregg, General Counsel, Bureau of Internal Revenue, Sewall Key, Attorney in the Department of Justice, and Raymond L. Joy, were on the brief, for the United States. The gains and profits derived from illicit traffic in liquor constitute income. It has been uniformly held by the courts that such income was intended by Congress to fall within the purview of the Income Tax Act of 1921. This interpretation is shown by the all-inclusive language used by Congress to define income and by the history of the changes in income-tax legislation. The questions asked in the required income tax return do not compel the disclosure of any fact which tends to incriminate. Only information of the most general character relating to the nature of the taxpayer’s business is demanded, none of which in itself constitutes proof of unlawful dealings. In determining the nice balance that exists between the constitutional rights of the individual and the sovereign’s right to compel information necessary for governmental purposes the courts will go as far “ as may be consistent with the liberty of the individual.” This is illustrated in Mason v. United States, 244 U. S. 362, and Ex parte Irvine, 74 Fed. 954. The taxpayer will not be permitted to set himself up as the judge of his rights under the Fifth Amendment. He must comply with the Government’s demand on him for information at least to the point where the information would tend to incriminate. Po-dolin v. Lesher Warner Dry Goods Co., 210 Fed. 97. In this case respondent failed to raise any claim of immunity he might have had under the Fifth Amendment in the proper manner and form, and in the failure to do so his privilege must be deemed to be waived. United States ex rel. Vajtauer v. Comm’r of Immigration, 273 U. S. 103. A tax return is the statement of account between the taxpayer and his Government. It is impressed with a UNITED STATES v. SULLIVAN. 261 259 Argument for Respondent. public interest and constitutes a public document. The cases oi'Boyd v. United States-, 116 U. S. 616, and Wilson v. United States, 221 U. S. 361, both recognize that records required by law to be kept constitute an exception to the .application of the Fifth Amendment. Numerous State cases have recognized this principle. United States v. Sischo, 262 U. S. 165, is authority for the Government’s contention herein, because the effect of the Fifth Amendment on the interpretation contended for by the Government, of the statute requiring manifests, underlay the whole case. The effect of the interpretation of the Circuit Court of Appeals of the Income Tax Act in this case would be to favor the lawbreaker and excuse from the operation of the Act any person who set up a claim that his income had been derived from criminal operations. Such interpretation is to be avoided because it is contrary to the purposes of the Act and is not demanded by a proper application of the Fifth Amendment. Mr. Frederick W. Aley, with whom Mr. E. Willoughby Middleton was on the brief, for respondent. Section 223 of the Revenue Act of 1921, in so far as it requires an income tax return of one whose income is derived from a violation of the criminal law, is in conflict with the Fifth Amendment. The obvious intent of the Fifth Amendment is that no one shall be compelled to be the means of exposing his own criminality. This privilege is for the protection of the innocent as well as the guilty, and is intended to prevent for all time anything in the nature of inquisitorial proceedings to compel confession of crime. Such protection is an essential part of the liberties of a free people and should be jealously guarded from encroachment by the legislative branch of the government. United States v. Boyd, 116 U. S. 616; Counselman v. Hitchcock, 142 U. S. 547; Emory’s Case, 107 Mass. 172; McKnight v. United States, 115 Fed. 972. 262 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. See Steinberg n. United States, 14 F. (2d) 564, and Peacock v. Pratt, 121 Fed. 772. The privilege is not limited to testimony, as ordinarily understood, but extends to every means by which one may be compelled to produce information which may incriminate. Boyd v. United States, supra; Brown n. Walker, 161 U. S. 591. Distinguishing Hale v. Henkel, 201 U. S. 43; Wilson v. United States, 221 U. S. 361; Baltimore etc. R. Co. v. Interstate Commerce Commission, 221 U. S. 612; and'United States, v. Sischo, 262 U. S. 165. See McCarthy v. Amdstein, 266 U. S. 34; United States v. Lombardo, 228 Fed. 980; United States v. Dalton, 286 Fed. 756; United States v. Mulligan, 268 Fed. 893; United States v. Cohen Grocery Co., 255 U. S. 81; United States v. Sherry, 294 Fed. 684. The Income Tax Law does not grant immunity from prosecution. The question of immunity is properly before this Court. Direct proceeds of crimes against the laws of the United States cannot be considered as income within the meaning of the Income Tax Law of 1921. Eisner v. Macomber, 262 U. S. 189; Steinberg v. United States, supra; Smith v. Minister of Finance, 2 Dom. L. Rep., reversed by Privy Council. Mr. Justice Holmes delivered the opinion of the Court. The defendant in error was convicted of wilfully refusing to make a return of his net income as required by the Revenue Act of 1921; November 23, 1921, c. 136, §§ 223 (a), 253; 42 Stat. 227, 250, 268. The judgment was reversed by the Circuit Court of Appeals. 15 F. (2d) 809. A writ of certiorari was granted by this Court. We may take it that the defendant had sufficient gross income to require a return under the statute unless he was exonerated by the fact that the whole or a large UNITED STATES v. SULLIVAN. 263 259 Opinion of the Court. part of it was derived from business in violation of the National Prohibition Act. The Circuit Court of Appeals held that gains from illicit traffic in liquor were subject to the income tax, but that the Fifth Amendment to the Constitution protected the defendant from the requirement of a return. The Court below was right in holding that the defendant’s gains were subject to the tax. By § 213 (a) gross income includes “ gains, profits, and income derived from . . . the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever.” These words are also those of the earlier Act of October 3, 1913, c. 16, § II, B; 38 Stat. 114, 167, except that the word 1 lawful ’ is omitted before ‘business’ in the passage just quoted. By § 600; 42 Stat. 285, and by another Act approved on the same day Congress applied other tax laws to this forbidden traffic. Act of November 23, 1921, c. 134, § 5; 42 Stat. 222, 223. United States v. One Ford Coupé, 272 U. S. 321, 327. United States v. Stafoff, 260 U. S. 477, 480: We see no reason to doubt the interpretation of the Act, or any reason why the fact that a business is unlawful should exempt it from paying the taxes that if lawful it would have to pay. As the defendant’s income was taxed, the statute of course required a return. See United States v. Sischo, 262 U. S. 165. In the decision that this was contrary to the Constitution we are of opinion that the protection of the Fifth Amendment was pressed too far. If the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all. We are not called on to decide what, if anything, he might have withheld. Most of the items warranted no complaint. It would be an extreme if not an extravagant application 264 OCTOBER TERM, 1926. Syllabus. 274 U.S. of thq Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime. But if the defendant desired to test that or any other point he should have tested it in the return so that it could be passed upon. He could not draw a conjurer’s circle around the whole matter by his own declaration that to write any word upon the government blank would bring him into danger of the law. Mason v. United States, 244 U. S. 362. United States ex ret. Vajtauer v. Commissioner of Immigration, 273 U. S. 103. In this case the defendant did not even make a declaration, he simply abstained from making a return. See further the decision of the Privy Council, Minister of Finance v. Smith, [1927] A. C. 193. It is urged that if a return were made the defendant would be entitled to deduct illegal expenses such as bribery. This by no means follows, but it will be time enough to consider the question when a taxpayer has the temerity to raise it. Judgment reversed. UNITED STATES v. ALFORD. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF FLORIDA. No. 983. Argued April 28, 1927.—Decided May 16, 1927. 1. In the Act of June 25, 1910, providing that “ whoever shall build a fire in or near any forest, timber, or other inflammable material upon the public domain, or upon any Indian reservation . . . shall, before leaving said fire, totally extinguish the same; and whoever shall fail to do so shall ” be punished, etc., the words “ upon the public domain ” are to be referred to the words immediately preceding, viz., “ forest, timber, or other inflammable material,” so that the statute applies where the fire is on private lands, but “ near ” to inflammable grass on the public domain. P. 266. UNITED STATES v. ALFORD. 265 264 Argument for the United States. 2. The Act, so construed, is constitutional; for Congress may prohibit the doing of acts upon privately owned lands that imperil the publicly owned forests. P. 267. 3. The word “near” is not too indefinite. P. 267. Reversed. Error to a judgment of the District Court sustaining a demurrer to an indictment. Mr. R. W. Williams, Solicitor, Department of Agriculture, with whom Solicitor General Mitchell, and Messrs. Fred Lees, and H. H. Clarke were on the brief, for the United States. The statutory language is reasonably plain. Where the words of a statute are susceptible of two constructions, the broader of which will carry out fully the evident legislative purpose, and the narrower will so unduly restrict its operation as to render it largely ineffective to accomplish that purpose, the construction should be adopted which will give full effect to the known intent of Congress in its enactment. Millard v. Roberts, 202 U. S. 429. This evident legislative purpose can be subserved only if the statute be construed as prohibiting the leaving unextinguished of all fires which, by reason of being built in or near the timber on the public domain, constitute a menace thereto. United States v. Hartwell, 6 Wall. 385; Lau Ow Bew v. United States, 144 U. S. 47; Ash Sheep Co. v. United States, 252 U. S. 159. The application to the words of this statute of that construction which will effectuate the known legislative intent is not violative of the rule that criminal and penal statutes will be strictly construed. Ash Sheep Co. v. United States, 252 U. S. 159; United States v. Bowman, 260 U. S. 94; Johnson v. Southern Pacific Co., 196 U. S. 1; United States v. Chemical Foundation, 272 U. S. 1; United States v. Wiltberger, 5 Wheat. 76; United States 266 OCTOBER TERM, 1926. Opinion outlie Court. 274U.S. v. Hartwell, 6 Wall. 385; United States v. Lacher, 134 U. S. 624; United States v. Corbett, 215 U. S. 233. It is clearly within the constitutional power of Congress to prohibit one from leaving unextinguished a fire built by him on private land, but near timber or other inflammable material, upon the public domain. Hamilton v. Kentucky Distilleries Co., 251 U. S. 146; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; Brooks v. United States, 267 U. S. 432; Ex parte Siebold, 100 U. S. 371; Pensacola Telegraph Co. v. Western Union Tel. Co., 96 U. S. 1; In re Neagle, 135 U. S. 1; United States v. Ferger, 250 U. S. 199; Camfield v. United States, 167 U. S. 518; McKelvey v. United States, 260 U. S. 353; Perley v. North Carolina, 249 U. S. 510, and United States v. Ramsey, 271 U. S. 467. No appearance for defendant in error. Mr. Justice Holmes delivered the opinion of the Court. Alford was indicted for building a fire near inflammable grass and other inflammable material and timber situated upon the public domain of the United States, and for not extinguishing the same before leaving it, by reason of which the said grass and other material was burned. The count was demurred to on the ground that the statute concerned does not cover the building or leaving of fires at any place except upon a forest reserva-tion, and that if it attempts to cover fires elsewhere it is unconstitutional and void. The District Court construed the statute in the same way and sustained the demurrer. A writ of error was taken by the United States. By the Act of June 25, 1910, c« 431, § 6; 36 Stat. 855, 857, amending § 53 of the Penal Code of March 4, 1909, “ Whoever shall build a fire in or near any forest, timber, or other inflammable material upon the public domain, or upon any Indian reservation, or lands belonging to or UNITED STATES v. ALFORD. 267 264 Opinion of the Court. occupied by any tribe of Indians under the authority of the United States, or upon «any Indian allotment while the title to the same shall be held in trust by the Government, or while the same shall remain inalienable by the allottee without the consent of the United States, shall, before leaving said fire, totally extinguish the same; and whoever shall fail to do so shall be fined not more than one thousand dollars, or imprisoned not more than one year, or both.” The Court read the words ‘ upon the public domain ’ as qualifying the phrase 1 whoever shall build a fire.’ We are of opinion that this was error, and that 1 upon the public domain ’ should be referred to the words immediately preceding it: ‘ forest, timber, or other inflammable material.’—So interpreted, they make better English and better sense. The purpose of the Act is to prevent forest fires which have been one of the great economic misfortunes of the country. The danger depends upon the nearness of the fire, not upon the ownership of the land where it is built. It is said that the construction that we adopt has been followed by the Department of Justice and by a number of cases in the District Courts ever since the passage of the original Act of February 24, 1897, c. 313; 29 Stat. 594. We regard the meaning as too plain to be shaken, by the suggestion that criminal statutes are to be construed strictly. They also are to be construed with common sense. The statute is constitutional. Congress may prohibit the doing of acts upon privately owned lands that imperil the publicly owned forests. Camfield v. United States, 167 U. S. 518. See McKelvey v. United States, 260 U. S. 353. The word ‘ near ’ is not too indefinite. Taken in connection with the danger to be prevented it lays down a plain enough rule of conduct for anyone who seeks to obey the law. Judgment reversed. 268 OCTOBER TERM, 1926. Argument for the United States. 274 U. S. UNITED STATES v. SISAL SALES CORPORATION ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 200. Argued March 9, 1927.—Decided May 16, 1927. 1. A combination, entered into by parties within the United States and made effective by acts done therein, to monopolize the supply abroad, and the domestic stock, of an article of commerce produced only in a foreign country, monopolize and control its importation and sales, destroy competition, and arbitrarily advance and fix prices and make other unreasonable exactions of purchasers, is in violation of the Sherman Anti-Trust Act and of § 73 of the Wilson Tariff Act, as amended February 12, 1913. P. 274. 2. The fact that their control of the production was aided by discriminatory legislation of the foreign country does not prevent punishment of the forbidden results of the conspiracy, within the United States. American Banana Co. v. United Fruit Co., 213 U. S. 347, distinguished. P. 275. Reversed. Appeal from a decree of the District Court dismissing, on motion equivalent to a demurrer, a bill by the United States to enjoin an alleged combination and conspiracy to monopolize the importation and sale in the United States of sisal—a fiber which is used for the manufacture of binder twine and which is produced in Yucatan almost exclusively. Assistant to the Attorney General Donovan, with whom Solicitor General Mitchell, and Messrs. Rush H. Williamson, Miller Hughes, and William D. Whitney, Special Assistants to the Attorney General, were on the brief, for the United States. The entry into a conspiracy with unlawful intent to restrain foreign trade and commerce is an offense under U. S. v. SISAL SALES CORP. 269 268 Argument for the United States. the Sherman Anti-Trust Law and the anti-trust provisions of the Wilson Tariff Law. The unlawful character of such a conspiracy is not dependent upon the unlawfulness of any one or more of the particular acts relied upon by the defendants to make such conspiracy effective. The offense is complete when the conspiracy is entered into. Nash v. United States, 229 U. S. 373. The American Banana Case, 213 U. S. 359, was an action for damages under § 7 of the Sherman Act, and the injury relied upon was committed at the instigation of the defendant by the Government of Costa Rica. The right to damages must depend upon the unlawful character of the injury. When a conspiracy is one to restrain foreign commerce and to monopolize the importation of a particular product, it is unlawful irrespective of the means employed to carry it out, and is subject to be enjoined under § 4 of the Sherman Act and § 74 of the Wilson Tariff Act. In the case at bar, moreover, the Government has not merely charged the entry into a conspiracy with unlawful purpose and aim, but also the actual attainment of the ends of that conspiracy by various overt acts. The Banana Case, supra, is not authority upon the present case. The cases which followed it establish the rule that even acts done abroad which are lawful there may be the basis of a suit if they are operative here and are unlawful under our law. United States v. Nord Deutscher Lloyd, 223 U. S. 512; United States v. Pacific & Arctic Co., 228 U. S. 87; United States v. Twenty Five Packages of Panama Hats, 231 U. S. 358; United States v. Bowman, 260 U. S. 94; United States v. American Tobacco Co., 221 U. S. 106. The anti-trust provisions of the Wilson Tariff Act are particularly directed against restraints upon foreign commerce by importers. Repeal by the State of Yucatan of the discriminatory legislation would not render the case moot. 270 OCTOBER TERM, 1926. Argument for Appellees. 274U.S. Mr. Winthrop W. Aldrich for appellee Sisal Sales Corporation. It is clear from the allegations of the petition that the alleged monopoly depended entirely upon the discriminatory tax laws of the State of Yucatan in favor of Comisión Exportadora. The “ unlawful agreement ” alleged to have been made by a number of the defendants, in pursuance of which it is claimed the monopoly resulted, contemplated that Castellanos should proceed to Yucatan, Mexico, and “ cause to be enacted in the Republic of Mexico or the States of Yucatan and Campeche any laws or regulations necessary to create a monopoly of the sisal produced in said States and such laws and regulations as might be necessary for a reduction of acreage and control of prices.” Prior to the enactment of the discriminatory tax laws competition existed, and immediately upon the enactment thereof competition ceased. It is manifest that the creation of a monopoly by the laws of a foreign State would not constitute a violation of our anti-trust statutes. American Banana Co. v. United Fruit Co., 213 U. S. 347. It would be utterly futile to grant the injunction prayed for in the petition, for, if granted, it would not affect the discriminatory tax laws of the State of Yucatan by virtue of which the monopoly is alleged to have been created and become effective; nor would it prevent the Comisión Exportadora from continuing to sell sisal in the United States through agencies other than the defendants and with other financial support. Mr. Harold R. Medina for appellee Hanson & Orth et al. The petition alleges a monopoly existing as the direct result of a series of enactments, proclamations and decrees of sovereign foreign governments without which nothing remains of the alleged conspiracy in this case. U. S. v. SISAL SALES CORP. 271 268 Opinion of the Court. (1) A conspiracy to effect monopoly by means of enactments, proclamations and decrees of a sovereign foreign government is not within the scope of the Anti-Trust laws of the United States, and the decision in the American Banana Case, 213 U. S. 347, is conclusive on that point. (2) Moreover, the question raised by the existence of the foreign government monopoly in this case is a broad international, economic and political one, and in so far as the United States conceives itself to be injured by such monopoly, the remedy should not be attempted by the courts but by the executive and legislative departments of the United States. Mr. Justice McReynolds delivered the opinion of the Court. The United States seek an injunction to prevent appellees from taking further action in pursuance of a contract, combination or conspiracy said to be forbidden by the Sherman Anti-trust Act and the Wilson Tariff Act as amended, c. 647, 26 Stat. 209; c. 349, 28 Stat. 509, 570; c. 40, 37 Stat. 667. The trial court regarded American Banana Co. v. United Fruit Co., 213 U. S. 347, as controlling; held that no cause of action had been alleged; and dismissed the bill upon motion. The bill is confused, difficult to follow, and an excellent example of bad pleading. An order should direct that it be recast and conformed to the established rules. Courts ought not to be burdened by rambling and obscure statements. Nevertheless, we think enough is alleged to indicate a meritorious cause and to require reversal of the judgment below. Appellees are three banking corporations doing business at New York and New Orleans; two Delaware corporations—The Eric and the Sisal Sales—organized to deal in sisal; a Mexican corporation—Comisión Exportadora de Yucatan—which buys sisal from the producers; 272 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. certain officers and agents of the foregoing corporations; and members of Hanson and Orth, brokers. Sisal is the fiber of the henequen plant, a native of Mexico, and from it is fabricated more than eighty per centum of the binder twine used for harvesting our grain crops. The annual requirements of the United States are from two hundred and fifty to three hundred million pounds. During one year a million bales—375 pounds each—were imported. Adequate quantities can be obtained only from Yucatan. The plant is extensively cultivated there and the supply has often exceeded market demands. Prices paid to producers have varied from less than four to seven or eight cents per pound. Prior to 1919 appellee banks advanced large sums to parties endeavoring to monopolize importation and sale of sisal in the United States. The Mexican corporation, Comisión Reguladora del Mercado de Henequen, was utilized as an important instrumentality for making necessary purchases, and legislation favorable to it was secured. For a time the scheme succeeded; then came collapse. Through foreclosure of liens held to secure their loans (several million dollars) appellee banks acquired four hundred thousand bales of fiber stored in this country. About that time, through change of laws, the Yucatan markets were again opened; competition became active and prices declined. Thereupon, appellee banks, acting jointly and within the United States, entered into and undertook to make effective another and somewhat different combination or scheme to control the sisal market, with the ultimate purpose of selling their holdings, recouping losses and securing large gains. Later, the other defendants became parties thereto. As the direct outcome of this unlawful combination, conspiracy and accompanying contracts, it is alleged— U. S. v. SISAL SALES CORP. 273 268 Opinion of the Court. Appellees have secured a monopoly of interstate and foreign commerce in sisal. The Comisión Exportadora de Yucatan has become sole purchaser of sisal from producers and the Sisal Sales Corporation, sole importer into the United States. There is no longer any competition in the trade; excessive prices are arbitrarily fixed. The sisal acquired by the banks during 1919 has been sold; undue profits and commissions have been and are demanded ; the conspirators have realized great sums at the expense of our manufacturers and farmers. All steps necessary to bring about the above-stated results have been deliberately taken by appellees. Some of them are stated below. The Eric Corporation, organized in August, 1919, and owned and financed by the banks, took over the large stocks of sisal acquired by them through foreclosure, also two hundred and fifty thousand bales accumulated in Yucatan. Laws favorable to it were solicited and secured from the governments of Mexico and Yucatan. Under them, and by the use of large sums supplied by the banks, that corporation and its agents soon became everywhere the dominant factors in the sisal trade. Prior to January, 1921, the Mexican corporation, Comisión Reguladora del Mercado de Henequen, was the agency for buying and selling sisal in that country; but about that time its business collapsed. Thereupon, the Comisión Monetaria was organized under the same laws, furnished with large sums of money and utilized for such purposes. The governments of both Mexico and Yucatan were persuaded to pass discriminatory legislation, and all other buyers were forced out of the markets. But because of the great supply of fiber this plan also proved unsuccessful and The Eric Corporation was obliged to increase its large holdings. Later, by procurement of the banks, the Sisal Sales Company was organized to deal in sisal, and Hanson and 55514°—28--18 274 OCTOBER TERM, 1926. Opinion of the Court. 274U.S. Orth became its managers. It took title to the sisal held by The Eric Corporation. The old Comisión Reguladora del Mercado de Henequen was revived as the Comisión Exportadora de Yucatan and again became the active agent for buying and selling in Mexico. Laws were solicited and passed which gave it advantages over all others. Under these, and by the use of funds supplied by the banks, it soon became the sole buyer of sisal from the producers. It also acquired the fiber held by the Sisal Sales Corporation on storage • in the United States. Thereupon, the Sisal Sales Corporation, through contracts, became the exclusive selling agent of the Comisión Exportadora de Yucatan in all markets of the world, and agreed to furnish the funds necessary for their joint operations. Appellees thus, and by constant manipulation of the markets, acquired complete dominion over them, destroyed all competition, obtained power to advance and arbitrarily to fix excessive prices, and have made unreasonable exactions. Accepting as true the allegations of the bill—roughly summarized above—it is plain enough that appellees are parties to a successful plan to destroy competition and to control and monopolize the purchase, importation and sale of sisal. The Sherman Act inhibits contracts, combinations and conspiracies to destroy competition in interstate and foreign trade and commerce, as well as attempts to monopolize such trade. Sections 73 and 74 of the Wilson Tariff Act, as amended,* declare unlawful * Wilson Tariff Act, Aug. 27, 1894, as amended by Act of Feb. 12, 1913. Sec. 73. That every combination, conspiracy, trust, agreement, or contract is hereby declared to be contrary to public policy, illegal, and void when the same is made by or between two or more persons or corporations either of whom, as agent or principal, is engaged in importing any article from any foreign country into the United States, and when such combination, conspiracy, trust, agreement, or U. S. v. SISAL SALES CORP. 275 268 Opinion of the Court. every combination, conspiracy, trust, agreement or contract intended to operate in restraint of trade in, or free competition in respect of, or intended to increase the market price of any article when one of the parties is engaged in importing the same, and give the courts power to prevent and restrain those who violate the Act. The circumstances of the present controversy are radically different from those presented in American Banana Co. v. United Fruit Co., supra, and the doctrine there approved is not controlling here. The Banana Company sued for treble damages under the Sherman Act, basing contract is intended to operate in restraint of lawful trade, or free competition in lawful trade or commerce, or to increase the market price in any part of the United States of any article or articles imported or intended to be imported into the United States, or of any manufacture into which such imported article enters or is intended to enter. Every person who is or shall hereafter be engaged, in the importation of goods or any commodity from any foreign country in violation of this section of this Act, or who shall combine or conspire with another to violate the same, is guilty of a misdemeanor, and on conviction thereof in any court of the United States such person shall be fined in a sum not less than one hundred dollars and not exceeding five thousand dollars, and shall be further punished by imprisonment, in the discretion of the court, for a term not less than three months nor exceeding twelve months. Sec. 74. That the several circuit courts of the United States are hereby invested with jurisdiction to prevent and restrain violations of section seventy-three of this Act; and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the Attorney-General, to institute proceedings in equity to prevent and restrain such violations. Such proceedings may be by way of petitions setting forth the case and praying that such violations shall be enjoined or otherwise prohibited. When the parties complained of shall have been duly notified of such petition the court shall proceed, as soon as may be, to the hearing and determination of the case; and pending such petition and before final decree, the court may at any time make such temporary restraining order or prohibition as shall be deemed just in the premises. 276 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. its claim upon acts done outside the United States and not unlawful by the law of the place. “ The substance of the complaint is that, the plantation being within the de facto jurisdiction of Costa Rica, that state took and keeps possession of it by virtue of its sovereign power. But a seizure by a state is not a thing that can be complained of elsewhere in the courts.” “A conspiracy in this country to do acts in another jurisdiction does not draw to itself those acts and make them unlawful, if they are permitted by the local law.” Here we have a contract, combination and conspiracy entered into by parties within the United States and made effective by acts done therein. The fundamental object was control of both importation and sale of sisal and complete monopoly of both internal and external trade and commerce therein. The United States complain of a violation of their laws within their own territory by parties subject to their jurisdiction, not merely of something done by another government at the instigation of private parties. True, the conspirators were aided by discriminating legislation, but by their own deliberate acts, here and elsewhere, they brought about forbidden results within the United States. They are within the jurisdiction of our courts and may be punished for offenses against our laws. Moreover, appellees are engaged in importing articles from a foreign country and have become parties to a contract, combination and conspiracy intended to restrain trade in those articles and to increase the market price within the United States. Such an arrangement is plainly denounced by § 73 of the Wilson Tariff Act, as amended. The decree of the court below must be Reversed. Mr. Justice Stone took no part in the consideration or decision of this cause. DEAL v. UNITED STATES. 277 Opinion of the Court. DEAL ET AL. v. UNITED STATES. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 344. Submitted April 25, 1927.—Decided May 16, 1927. 1. A postmaster is not liable as an insurer under Rev. Stats. § 3846 for the loss of a registered package containing money which belongs to the United States but which is not such that it may be “ ordered by the Postmaster General to be transferred or paid out.” P. 279. 2. Under Postal Regulations of 1913, §§ 291 and 940, a postmaster and his surety are responsible for registered mail “lost or rifled,” when the postoffice “ has been robbed,” only if the “ depredation or loss be due to negligence or disregard of the Regulations.” P. 280. 3. Charges for witness travel outside the district are not taxable against a defeated party to a civil action in the District Court for Alaska. P. 284. 11 F. (2d) 3, reversed. Certiorari (271 U. S. 656) to a judgment of the Circuit Court of Appeals which affirmed a judgment of the District Court for the Territory of Alaska in favor of the United States in a suit against a postmaster and his surety for money abstracted from a registered package. Mr. Louis S. Beedy for petitioners. Solicitor General Mitchell, Assistant Attorney General Letts, Mr. Gardner P. Lloyd, Special Assistant to the Attorney General, and Mr. J. Kennedy White, Attorney in the Department of Justice, for the United States. Mr. Justice McReynolds delivered the opinion of the Court. Upon his appointment as postmaster at Fairbanks, Alaska, petitioner Deal executed the ordinary official bond, with the Fidelity & Guaranty Company as surety, conditioned that he “ shall faithfully discharge all duties 278 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. and trusts imposed on him as postmaster either by law or by the regulations of the Post Office Department,” etc. The United States sued on this bond in a District Court of Alaska and asked judgment for ninety-nine hundred dollars, the amount of currency abstracted from a package deposited in the Fairbanks office for registration and transmission. Judgment upon a verdict went for them and was affirmed by the Circuit Court of Appeals, Ninth Circuit, notwithstanding errors by the trial court, recognized but held to be harmless. 11 Fed. (2d) 3. Replying to the petition for certiorari from this Court, the Solicitor General very properly said, “The record is in a jumble, and the treatment of the case by the trial court involved so many inconsistencies that the case is difficult to analyse.” The trial judge charged the jury upon three inconsistent theories. (1) That the postmaster was liable for the abstracted money only if guilty of some negligence which caused the loss. (2) That liability existed if he had violated some regulation of the Post Office Department respecting care of the registered package although not shown to be proximate cause of the loss. (3) That the money taken, being property of the United States, was public funds and the postmaster became liable therefor as an insurer as though it had been received from sale of stamps or money orders. Among other things, the record discloses— That on September 15, 1921, the First National Bank deposited at the Fairbanks Post Office for registration and transmission a package addressed to the disbursing agent at Healy, Alaska, via Nenana, which contained ninety-nine hundred dollars in currency, and some silver, belonging to the United States. The clerk who received and registered it thought the package contained money, but was not so advised. Another clerk placed it in an iron safe and left the door on the day combination. DEAL v. UNITED STATES. 279 277 Opinion of the Court. That during the night of September 15, petitioner Deal permitted an unauthorized person to enter the office. September 16 the package was placed in the pouch destined to Nenana. Upon its arrival at that place the currency was gone—a magazine filled the space. That some evidence touching treatment of the package at the Fairbanks office and much testimony concerning transportation, tended to show the bills were abstracted while it remained there. Considering the serious nature of the errors committed by the trial court, and upon the entire, record, we must conclude that they caused material prejudice to the petitioners’ substantial rights. Act February 26, 1919, c. 48, 40 Stat. 1181. Accordingly, the challenged judgment must be reversed and the cause remanded for another trial. Under this conclusion, we need only consider matters probably important for further conduct of the cause. The Circuit Court of Appeals properly rejected, and the Solicitor General does not rely upon, the theory that under § 3846 R. S. (§ 360, Postal Regulations 1913) the postmaster became liable for the registered package as an insurer. That section provides: “ 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.” Public money, within this provision, “ 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.” Smyer v. United States, 273 U. S. 333. It is admitted that petitioner Deal failed to observe certain regulations intended to secure safety of registered matter; but it is stoutly denied that the evidence showed any causal connection between such negligence or disregard of duty and the loss sustained. 280 OCTOBER TERM, 1926. Opinion of the Court. 274U.S. During 1921 the 1913 Edition, Postal Laws and Regulations, was in force. Sections which require special consideration follow: “ Sec. 291. When a post office has been robbed, the postmaster shall immediately report all the facts to the Chief Inspector and to the post-office inspector in charge of the division in which the post office is located. (See sec. 35.) The report should give, if possible, all the circumstances connected with the robbery, the date, a detailed inventory of the loss, the denominations of stamped paper stolen, the amount of postal and money-order funds and of each class of Government property. The postmaster shall be held responsible for the loss if he • fails to exercise due care in the protection of the property. If the loss includes the mail key the number should be given. (See sec. 1527.) Full particulars regarding registered mail lost or rifled should be reported. The Chief Inspector shall promptly notify the Assistant Attorney General of every such casualty from which a claim for credit under the provisions of section 150 may arise. . . . “ Sec. 940. Postmasters and other postal employees will be held personally responsible by the Post Office Department for the wrong delivery, depredation upon, or loss of any registered letter or parcel if such wrong delivery, depredation, or loss be due to negligence or disregard of tlie regulations. [The provisions of this section appear unchanged as § 989, Edition 1924 of the Regulations.] “Sec. 150 [Act May 9, 1888, c. 231, 25 Stat. 135, as amended by Act June 11, 1896, c. 424, 29 Stat. 458]. That the Postmaster General be, and he is hereby, authorized to investigate all claims of postmasters for the loss of money-order funds, postal funds, postage stamps, stamped envelopes, newspaper wrappers, and postal cards, belonging to the United States in the hands of such postmasters, resulting from burglary, fire, or other un- DEAL v. UNITED STATES. 281 277 Opinion of the Court. avoidable casualty, and if he shall determine that such loss resulted from no fault or negligence on the part of such postmasters, to pay to such postmasters, or credit them with the amount so ascertained to have been lost or destroyed, etc., etc.” Did § 291 impose liability for theft from the registered package while held by the postmaster and not protected as the Regulations required, without evidence to show that the loss resulted from failure to observe them? If so, it was unnecessary to show such causal connection, as the United States maintain. But if § 940 defined the responsibility, as he insists, that relation was essential. Section 492, Edition 1879, Postal Laws and Regulations; § 700, ed. 1887; § 669, ed. 1893; § 278, ed. 1902; § 328, ed. 1924, correspond to § 291, ed. 1913. Edition 1879. w Sec. 492. Postmasters to immediately report robbery of post office. Whenever a post office has been robbed the postmaster will immediately report all the facts . . . This report must state as fully as possible all the circumstances connected with the robbery, giving the date and extent of the loss. He must be careful to state whether the loss consists of stamps, stamped envelopes, postal cards, letters (stolen or rifled), postal or money-order funds, or government property. . . . He must give all the information in his possession relating to each lost or rifled registered letter . . . For the value of registered or ordinary mail lost by robbery of post offices postmasters will be held responsible if, upon investigation, it appears that due care was not taken to secure the mail matter from depredation.” Edition 1887. “ Sec. 700. Reports of robberies of post offices. . . . As to registered matter lost or rifled, the report should specify the post office where mailed, date of mailing, number of letter and registered package envelope, by whom written, to whom addressed, and con- 282 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. tents, if known. For the value of registered or ordinary mail matter lost by robbery of post offices, the postmaster may be held responsible to the losers, if upon investigation it appears that due care was not taken for the protection of the property. . . .” Section 669, Edition 1893, does not differ materially from § 700, Edition 1887; and this is true of § 278, Edition 1902, except the latter declares “ the postmaster will be held responsible,” while the two previous editions say “ may be held.” Edition 1924. “ Sec. 328. When a post office has been broken into by burglars, the postmaster shall [make report, etc.] . . . Full particulars also regarding registered mail lost or rifled should be given. . . . The postmaster shall be held responsible for the loss if he fails. to exercise due care in the protection of the property.” Section 864, Edition 1902, (to which § 940, Edition 1913, corresponds) provides—“ Postmasters will be held personally responsible by the Post Office Department for the wrong delivery, depredation upon, or loss of any registered letter or parcel while in their custody, if such wrong delivery, depredation, or loss be due to negligence or disregard of the regulations. They are also liable on their bond for any damage resulting to the Department on account of such wrong delivery, depredation, or loss.” For many years the Regulations imposed possible or positive liability upon postmasters for loss of registered mail when the office had been robbed and lack of care appeared; also the general provisions of § 940. And the argument is that we cannot deduce from the altered language of § 291, Edition 1913, intention to relieve from the strict liability theretofore imposed. But why the change if it meant nothing? And may petitioners be subjected to liability because of language found in ancient Regulations of which, probably, they had no knowledge? DEAL v. UNITED STATES. 283 277 Opinion of the Court. On the other hand is the suggestion that to hold postmasters responsible under § 291 for the loss of currency from registered packages would produce an anomalous situation, since this would leave the Postmaster General with full power, under § 150, to relieve where money order funds are lost but with no such power where money belonging to the United States is taken from a registered package the contents of which had not been revealed. Difficulties, of course, arise from the words “ robbery ” in § 291 and “depredation upon” in § 940. Robbery, accurately defined, is “the felonious and forcible taking from the person of another, goods or money to any value, by violence or putting him in fear.” Bouvier’s Law Dictionary; Jolly v. United States, 170 U. S. 402, 404. Depredation is “the act of plundering; a robbing; a pillaging.” Century Dictionary. Apparently the Regulations contained no definition of these terms. Generally, at least, the word “robbery” conveys the idea of violence and it is hardly appropriate to stealthy abstraction. One may well doubt the application of § 291 in the circumstances here disclosed. The author of § 328, of the Regulations, Edition 1924, probably noted that larceny, burglary and robbery are distinct offenses. The structure and language of § 291 are not wholly inconsistent with the theory that postmasters “ shall be held responsible for the loss ” of property described by the lines immediately preceding the quoted words; but for “ registered mail lost or rifled ” “ when a post office has been robbed ” they become responsible only if the “ depredation or loss be due to negligence or disregard of the Regulations.” Certainly the Regulations of 1913 are far from clear. Considering the language and the arrangement of § 291 along with the general provisions of § 940, and not forgetting that both were prepared by the Post Office Department, are subject to alteration, impose large respon- 284 OCTOBER TERM, 1926. Syllabus. 274 U.S. sibility, and should be construed according to the probable understanding of men who accept such offices, we conclude that § 940 prescribed the petitioners’ responsibility, and the jury should have been charged accordingly. It was necessary to show causal connection between the loss and the alleged negligence or disregard of regulations. We accept the ruling by the Circuit Court of Appeals as to the disputed items of costs taxed against, petitioners by the trial court, except as to charges by witnesses for travel outside the district. That item should be eliminated. Reversed. • HOPE NATURAL GAS COMPANY v. HALL, STATE TAX COMMISSIONER, et al. ERROR TO THE SUPREME COURT OF APPEALS OF THE STATE OF WEST VIRGINIA. No. 815. Argued April 21, 1927.—Decided May 16, 1927. 1. A state court’s construction of a state statute is to be gathered from the application made of it as shown by the final decree in connection with the opinion rather than by excerpts selected from the opinion. P. 288. 2. West Virginia “ annual privilege tax ” on the business of producing natural gas in the State, computed on the value of the gas produced “ as shown by the gross proceeds derived from the sale thereof by the producer ”—the measure of the tax being otherwise stated as “ the value of the entire production in this State, regardless of the place of sale, or the fact that deliveries may be made to points outside the State,”—is not unconstitutional as respects gas transported to and sold in other States, since it is construed as requiring the tax to be computed on the value of the gas at the well, before it enters interstate commerce, which is valid. P. 288. 3. The contention that the tax violates due process by taxing gross receipts from interstate commerce beyond the jurisdiction of the State, therefore, is without basis. P. 288. HOPE GAS CO. v. HALL. 285 284 Opinion of the Court. 4. The exemption from gross proceeds of $10,000, allowed by the statute in all cases, does not violate the Equal Protection Clause. P. 289. 102 W. Va. 272, affirmed. Error to a decree of the Supreme Court of Appeals of West Virginia, which reversed a decree enjoining Hall, Tax Commissioner, and Lee, Attorney General, from enforcing against the plaintiff, Hope Natural Gas Company, the taxing act discussed in the opinion. Mr. John W. Davis, with whom Messrs. H. D. Rummel, Arthur E. Young, Charles Powell, Kemble White, Anthony F. McCue, 8. E. W. Burnside, and Edward M. Borger were on the brief, for plaintiff in error. Mr. Fred O. Blue, with whom Messrs. Howard B. Lee, Attorney General of West Virginia, and T. C. Townsend were on the brief, for defendants in error. Mr. Justice McReynolds delivered the opinion of the Court. This writ brings up a decree by the Supreme Court of Appeals, West Virginia, which construed § 2-a, c. 1, Acts of the Legislature, Extraordinary Session 1925,* and sus- * An Act to provide for the raising of additional public revenue by a tax upon the privilege of engaging in certain occupations; to provide for the ascertainment, assessment, and collection of such tax; to provide penalties for violations of the terms hereof; and to repeal certain statutes, [passed by the Legislature of West Virginia June 5, 1925], Sec. 2. That from and after the thirtieth day of June, one thousand nine hundred twenty-five, there is hereby levied and shall be collected annual privilege taxes against the persons, on account of the business activities, and in the amounts to be determined by the application of rates against values or gross income, as the case may, as follows: Sec. 2-a. Upon every person engaging or continuing within this state in the business of mining and producing for sale, profit, or use, 286 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. tained it against objections based upon § 8, Art. I, Federal Constitution and the Fourteenth Amendment. The grounds relied upon for reversal are without merit and the decree must be affirmed. The original proceeding challenged the validity of the tax prescribed by § 2-a and sought an injunction to prevent defendant State officers from attempting to enforce it. The chief objection rested upon the direction of the statute that, “ The measure of this tax is the value of the entire production in this State, regardless of the place of sale or the fact that deliveries may be made to points outside the State.” The trial court held that the tax would substantially burden and interfere with interstate commerce and ordered an appropriate injunction. In an opinion, 102 W. Va. 272, indicating very definite purpose to follow rulings here, the court below, as shown by the authoritative head noté, declared: “ Under Section any coal, oil, natural gas, limestone, sand or other mineral product, or felling and producing timber for sale, profit, or use, the amounts of such tax to be equal to the value of the articles produced as shown by the gross proceeds derived from the sale thereof by the producer (except as hereinafter provided), multiplied by the respective rates as follows: coal, forty-two one-hundredths of one per cent.; oil, one per cent.; natural gas, one and seventeen-twentieths of one per cent.; limestone, sand or other mineral product, nine-twentieths of one per cent. The measure of this tax is the value of the entire production in this state, regardless of the place of sale or the fact that deliveries may be made to points outside the state. Sec. 2-h. In computing the amount of tax levied hereunder, however, for any year, there shall be deducted from the values, or from the gross income of the business, as the case may be, an exemption of ten thousand dollars of the amount of such values or gross income. Every person exercising any privilege taxable hereunder for any fractional part of a tax year shall be entitled to an exemption of that part of the sum of ten thousand dollars which bears the same proportion of the total sum that the period of time during which such person is engaged in such business bears to a whole year. HOPE GAS CO. v. HALL. 287 284 Opinion of the Court. 2a, Chapter 1, supra, the State may take into consideration the gross proceeds of a commodity produced in this State and sold in another State, but only for the purpose of determining the value of such commodity within the State and before it enters interstate commerce.” And among other things it there said— “ If the taxation value of the products named in the statute be limited to their value in the State, and before they enter interstate commerce, the statute does not manifest a purpose to violate Art. I of the Federal Constitution, and we so hold.” “We therefore hold, under the facts in this case, that the defendants may not treat the gross proceeds of plaintiff’s sales outside the State as the worth of its gas within the State, but that they may enforce the Act upon the value thereof within the State, and before it enters interstate commerce. The injunction herein will be accordingly so modified.” The final order directed: “That the decree of the Circuit Court of Kanawha County, pronouhced in this cause on the 25th day of May, 1926, in so far and in so far only as it enjoins the defendants from enforcing against the plaintiff the provisions of Sec. 2-a of ... by imposing a tax upon the natural gas produced by the plaintiff, based upon the value thereof within the State and before it enters interstate commerce, be and the same hereby is modified and corrected so as to permit defendants to impose and enforce against the plaintiff a tax, under said section, upon the natural gas so produced by it, based upon the value thereof within the State and before it enters upon interstate commerce, and that in all other respects said decree as hereby modified and corrected be and the same hereby is affirmed.” The chief business of plaintiff in error is production and purchase of natural gas in West Virginia and the continuous and uninterrupted transportation of this through pipe lines into Pennsylvania and Ohio, where it is sold, deliv- 288 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. ered and consumed. The corporation owns three thousand, one hundred and seventy-eight producing wells located in twenty-five counties of West Virginia, from which it took in the year ending June 30, 1925, more than twenty-three billion cubic feet of gas. And during the same period it purchased from other producers more than twenty-five billion cubic feet. Most of this passed into interstate commerce by continuous movement from the wells. Here it has been argued that the challenged Act burdens interstate commerce and therefore conflicts with Section 8, Article I, of the federal Constitution. Also, that to enforce the Act would deprive plaintiff in error of property without due process of law and deny equal protection of the laws. Counsel admit that without violating the commerce clause the State may lay a privilege or occupation tax upon producers of natural gas reckoned according to the value of that commodity at the well. American Mfg. Co. v. St. Louis, 250 U. S. 459; Heisler v. Thomas Colliery Co., 260 U. S. 245; Oliver Iron Co. v. Lord, 262 U. S. 172. But they insist that, accepting the statute under consideration as construed by the highest court of the State, plaintiff in error will be subjected to an unlawful direct tax upon gross receipts derived from interstate commerce. This argument rests chiefly upon certain language excerpted from the opinion below. But we review the final decree and must accept the statute as authoritatively construed and applied.* The plain result of the opinion and final decree is to require that the tax be computed upon the value of the gas at the well, and not otherwise. If, hereafter, executive officers disregard the approved construction and fix values upon any improper basis appropriate relief may be obtained through the courts. The suggestion concerning deprivation of due process goes upon the assumption that the imposition is upon ALSTON v. UNITED STATES. 289 284 Syllabus. gross receipts from interstate commerce, in reality upon property beyond the State’s jurisdiction. As already pointed out, this assumption conflicts with the definite ruling of the highest court of the State. The claim that equal protection of the laws has been denied rests upon the assertion, first, that an unlawful tax has been imposed upon the gross proceeds from sales regardless of their place and, second, that the exemption of ten thousand dollars from gross income by § 2-h creates undue inequality. The true meaning of the statute and the thing actually taxed oppose the first assertion. We cannot say that the Legislature acted either arbitrarily or unreasonably by authorizing the deduction. Nothing indicates a purpose to extend different treatment to those of the same class; no actual unreasonable inequality has been shown. Plaintiff in error is permitted to deduct ten thousand dollars; the same privilege, and nothing more, is extended to all other producers. Lake Superior Mines v. Lord, 271 U. S. 577; Swiss Oil Corporation v. Shanks, 273 U. S. 407. Affirmed. The Chief Justice took no part in the consideration or decision of this cause. ALSTON v. UNITED STATES. CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 898.. Argued April 14, 1927.—Decided May 16, 1927. 1. Section 9 of the original Harrison Narcotic Act, prescribing that any person who violates or fails to comply with any requirements of the Act shall be punished in a manner prescribed, applies also to violations of requirements added to the Act by subsequent amendments. P. 294. 555148—28--19 290 OCTOBER TERM, 1926. Argument for Alston. 274 U. S. 2. The provisions of § 1 of this Act, as amended, which impose a stamp tax on certain drugs and declare it unlawful to purchase or sell them except in or from original stamped packages, are within the taxing power of Congress, and have no necessary connection with any other requirement of the Act which may be subject to reasonable disputation. P. 294. District Court affirmed. This was a prosecution for purchasing morphine and cocaine from unstamped packages. Plaintiff in error, after pleading guilty and being sentenced, took the case to the Circuit Court of Appeals, which referred certain questions to this Court upon a certificate. The entire cause was brought up and decided under Jud. Code § 239. Messrs. Hooper Alexander and Frans E. Lindquist, with whom Messrs. John B. Boddie, Wm. H. Mason, Richard 0. Mason, and Thomas W. Hardwick were on the brief, for Alston. The statute is invalid. United States v. Daugherty, 269 U. S. 360; Doremus v. United States, 249 U. S. 86; Veazie Bank v. Fenno, 8 Wall. 533; Bailey v. Drexel Furniture Co., 259 U. S. 20; Child Labor Tax Case, 259 U. S. 41; McCray v. United States, 195 U. S. 27; Flint v. Stone Tracy Co., 220 U. S. 107; Hammer v. Dagenhart, 247 U. S. 251; Hill v. Wallace, 259 U. S. 44; Linder v. United States, 268 U. S. 5; United States v. Jin Fuey Moy, 241 U. S. 394. The invalidity goes to the whole Act. Hill v. Wallace, 259 U. S. 70. The amendments of 1919 and 1921 were included in the Revenue Acts of those years. Had they appeared there as independent enactments, they might be earnestly supported as bona fide excise taxes legitimately imposed in the exercise by Congress of its undoubted power under the first enumerated grant in the Constitution. We take it to be recognized law that where an act of Congress is unconstitutional and void, and must fall for that reason, it necessarily drags down with it every string that is tied ALSTON v. UNITED STATES. 291 289 Argument for the United States. to it. An unconstitutional law is no law, and therefore the amendment must fall because there was nothing to amend by. Solicitor General Mitchell, with whom Mr. Robert P. Reeder, Special Assistant to the Attorney General, was on the brief, for the United States. These provisions of the Act are clearly valid under the power to levy taxes. They are intended to produce revenue; they actually produce substantial revenue; they do not have the effect of prohibiting transactions; the taxes are not imposed as penalties for infraction of law, and there are no discriminating provisions to indicate that by colorable use of the taxing power Congress is attempting to invade the police power of the States. The provisions of § 2 relating to order forms and possession of drugs and which have the effect, among other things, of preventing individuals, not registered physicians or legitimate dealers who have paid the required occupation taxes, from purchasing and possessing the drug other than by means of medical prescriptions, which provisions are the only ones heretofore seriously questioned, are readily severable, and the remainder of the Act may and should be sustained regardless of their validity. The order-form provisions, aside from the one which prohibits sale of order forms to other than registered physicians and dealers, are clearly valid as tending to enforce the stamp and occupation tax provisions. In so far as they prevent the purchase by an unregistered individual of quantities of the drug exceeding his personal requirements, they are valid as enforcing the occupation tax on dealers, because such a purchase is only made by one who proposes to sell the drug. To the same extent the order-form provisions may be sustained as in aid of the Narcotic Drugs Import and Export Act, which prohibits the importation of the drugs in excess of an amount 292 October term, 1926. Opinion of the Court. 274 U.S. required for medicinal and legitimate use, as they trace the use to which the imports are devoted and operate to disclose smuggling. In addition the Opium Convention required the United States to enact such legislation. The public records show that the Harrison Act as amended has the double purpose of raising revenue and executing the treaty, and was enacted after the treaty had been signed, and the Act, by its terms, took effect after the treaty became operative. The public records show that no opium or coca leaves are produced in the United States, but all materials from which opium, morphine, or cocaine are derived are imported. The order form and possession clauses of Section 2 of the Harrison Act may not be held invalid without at the same time striking down the Opium Convention as beyond the treaty power. The narcotic problem has been historically proved to be an international problem, unsolvable except by general international agreement. If the narcotic problem is a proper subject of international agreement and the domestic legislation stipulated for in it is germane and reasonably required to make the international agreement effective, the treaty and the laws executing it are valid. That this is the case has been declared by the President and the Senate in negotiating and ratifying the treaty, by Congress in enacting this legislation to execute it, and by high Executive officials of the United States who have studied the problem. Mr. Justice McReynolds delivered the opinion of the Court. In the United States District Court, Southern District of Iowa, an indictment with three counts, filed December 2, 1924, charged Alston with violating § 1, Harrison Narcotic Act, approved December 17, 1914, c. 1, 38 Stat. 785, as amended February 24, 1919, c. 18, 40 Stat. 1057, 1130, ALSTON v. UNITED STATES. 293 289 Opinion of the Court. 1131, by purchasing morphine and cocaine from unstamped packages. He pleaded “ guilty ” and was sentenced to the penitentiary. A writ of error took the cause to the Circuit Court of Appeals, Eighth Circuit, and it asked our instruction upon certain questions. Thereupon, we required the entire record to be sent here for final determination of the whole matter. § 239, Jud. Code. Sections 1 and 6 of the Harrison Narcotic Act were amended by the Act of February 24, 1919, and, as thus amended, were reenacted without change by §§ 1005 and 1006, Revenue Act approved November 23, 1921, c. 136, 42 Stat. 227, 298, 300. The amending Act added the following provisions (among others) to Section 1. “That there shall be levied, assessed, collected, and paid upon opium, coca leaves, any compound, salt, derivative, or preparation thereof, produced in or imported into the United States, and sold, or removed for consumption or sale, an internal-revenue tax at the rate of 1 cent per ounce, and any fraction of an ounce in a package shall be taxed as an ounce, such tax to be paid by the importer, manufacturer, producer, or compounder thereof, and to be represented by appropriate stamps, to be provided by the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury; and the stamps herein provided shall be so affixed to the bottle or other container as to securely seal the stopper, covering, or wrapper thereof. “ The tax imposed by this section shall be in addition to any import duty imposed on the aforesaid drugs. “ It shall be unlawful for any person to purchase, sell, dispense, or distribute any of the aforesaid drugs except in the original stamped package or from the original stamped package; and the absence of appropriate tax-paid stamps from any of the aforesaid drugs shall be prima facie evidence of a violation of this section by the 294 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. person in whose possession same may be found; and the possession of any original stamped package containing any of the aforesaid drugs by any person who has not registered and paid special taxes as required by this section shall be prima facie evidence of liability to such special tax: Provided, . . Section 9 of the original Harrison Act has remained without change. It provides: “ That any person who violates or fails to comply with any of the requirements of this Act shall, on conviction, be fined not more than $2,000 or be imprisoned not more than five years, or both, in the discretion of the court.” The judgment of the trial court is assailed upon two grounds: That Congress has failed to prescribe any punishment for the purchase of drugs from unstamped packages, forbidden by amended § 1. And, that the entire Act, as amended, is invalid because Congress has undertaken thereby to regulate matters beyond its powers and within exclusive control of the States. Section 9, above quoted, obviously applies to the requirements of the amended Act as well as to those found in the original. The first objection has no merit. The present cause arises under those provisions of § 1 which impose a stamp tax on certain drugs and declare it unlawful to purchase or sell them except in or from original stamped packages. These provisions are clearly within the power of Congress to lay taxes and have no necessary connection with any requirement of the Act which may be subject to reasonable disputation. They do not absolutely prohibit buying or selling; have produced substantial revenue; contain nothing to indicate that by colorable use of taxation Congress is attempting to invade the reserved powers of the States. The impositions are not penalties. The judgment of the trial court must be Affirmed. UNITED STATES v. LUDEY. Statement of the Case. 295 UNITED STATES v. LUDEY. CERTIORARI TO THE COURT OF CLAIMS. No. 289. Argued April 21, 22, 1927.—Decided May 16, 1927. 1. Under the income and excess profits provisions of the Revenue Act of 1916, as amended by Revenue Act of 1917, in determining the existence and amount of profit realized from a sale of oil-mining properties—land, leases, and equipment—the cost of the property sold is the original cost to the taxpayer (if purchased after March 1, 1913, or its value on that date if acquired earlier for less) diminished by deductions for depreciation and depletion occurring between the dates of purchase (or March 1, 1913) and sale. P. 300. 2. The depreciation charge permitted as a deduction from the gross income in determining the taxable income of a business for any year represents the reduction, during the year, of the capital assets through wear and tear of the plant used. P. 300. 3. When a plant is disposed of after years of use, the thing then sold is not the whole thing originally acquired. The amount of the depreciation must be deducted from the original cost of the whole in order to determine the cost of that disposed of in the final sale of properties. P. 301. 4. This rule applies to mining as well as to mercantile business. P. 301. 5. The depletion charge permitted as a deduction from the gross income in determining the taxable income of mines for any year represents the reduction in the mineral contents of the reserves from which the product is taken. Because the quantity originally in the reserve is not actually known, the percentage of the whole, withdrawn in any year, and hence the appropriate depletion charge, is necessarily a rough estimate. P. 302. 6. The amounts of depreciation and depletion to be deducted from cost to ascertain gain on a sale of oil properties, are equal to the aggregates of depreciation and depletion which the taxpayer was entitled to deduct from gross income in his income tax returns for earlier years; but are not dependent on the amounts which he actually so claimed. P. 303. 61 Ct. Cis. 126, reversed. Certiorari (271 U. S. 651) to a judgment of the Court of Claims for an amount exacted as additional income and excess profits taxes. 296 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. Mr. T. L. Lewis, Jr., Attorney in the 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 United States. Mr. Wayne Johnson, with whom Mr. Mark J. Ryan was on the brief, for respondent. Mr. Justice Brandeis delivered the opinion of the Court. Ludey brought this suit in the Court of Claims to recover an amount exacted as additional taxes for 1917, under the income and excess profits provisions of the Revenue Act of 1916, September 8, 1916, c. 463, Title I, 39 Stat. 756, 757-759, as amended by the Revenue Act of 1917, October 3, 1917, c. 63, 40 Stat. 300, 329. The tax was assessed on the alleged gain from a sale in 1917 of oil mining properties which had been owned and operated by him for several years. The Commissioner of Internal Revenue determined that there was a gain on the sale of $26,904.15. Ludey insists that there was a loss of $14,777.33. The amount sued for is the tax assessed on the difference. Whether there was the gain or the loss depends primarily upon whether deductions for depletion and depreciation are to be made from the original cost in determining gain or loss on sale of oil mining properties. The question is one of statutory construction or application. The Court of Claims entered judgment for the plaintiff. 61 Ct. Cis. 126. This Court granted a writ of certiorari. 271 U. S. 651. The properties consisted, besides mining equipment, in part of oil land held in fee, in part of oil mining leases. The aggregate original cost of the properties was $95-977.33.1 Of this amount $30,977.33 was the cost of the 1Some of the properties were purchased before March 1, 1913. As to these the term cost is used, throughout the opinion, as mean- UNITED STATES v. LUDEY. 297 295 Opinion of thé Court. equipment used in the business; $65,000 the cost of the oil reserves. The 1917 sale price was $81,200. For the purpose of determining the cost of the properties sold in 1917 the Commissioner deducted from the original cost $10,465.16 on account of depreciation of the equipment through wear and tear, and $32,258.81 on account of depletion of the reserves through the taking out of oil by the plaintiff, after March 1, 1913. There was no dispute of fact concerning the correctness of the estimates upon which these deductions were made. The finding of the depletion was in accordance with the method of computation employed by the Bureau of Internal Revenue; and there was no objection specifically to the method of computation. But Ludey insisted that the amount of depletion, if any, could not be found or stated as a fact, since, in th'e nature of the case, it was impossible to determine how much oil was recoverable either when he acquired the properties or when he disposed of them. The finding of the depreciation was, likewise, in accordance with the method of computation employed by the Bureau; and there was no objection to the method of computation. But Ludey insisted also in respect to depreciation that the property was, as a matter of law, unchanged in character and quantity throughout the period of operation. Until 1924, none of the revenue acts provided in terms that, in computing the gain from a sale of any property, a deduction shall be made from the original cost on account of depreciation and depletion during the period of operation.* 2 But ever since March 1, 1913, the revenue ing their value as of March 1, 1913, that value being higher than the original cost. 2 The 1924 Act, June 2, 1924, § 202 (b), 43 Stat. 253, 255, provided that in computing gain or loss from sales, adjustment should be made for items of exhaustion, wear and tear, and depletion “previously allowed with respect to such property.” See Regulations 65, Arts. 298 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. acts have required that gains from sales made within the tax year shall be included in the taxable income of the year, and that losses on sales may be deducted from gross income. And each of the acts has provided that, in computing the taxable income derived from operating a mine, there may be made a deduction from the gross income for the depreciation and that some deduction may be made for depletion. The applicable provisions of § 5 (a) of the Revenue Act of 1916 concerning deductions to be allowed in computing net income are these: “ Fourth. Losses actually sustained during the year, incurred in his business or trade . . . Provided, That . . . the . . . value of . . . property [acquired before March 1, 1913] as of March first, nineteen hundred and thirteen, shall be the basis for determining the amount of such loss. ... “ Seventh. A reasonable allowance for the exhaustion, wear and tear of property arising out of its use or employment in the business or trade; “ Eighth, (a) In the case of oil and gas wells a reasonable allowance for actual reduction in flow and production . . . (b) in the case of mines a reasonable allowance for depletion thereof ... : Provided, That when the allowances . . . shall equal the capital originally invested ... no further allowance shall be made.” Ludey does not deny that Congress has power to require that deductions for depreciation and depletion shall be made from the original cost when determining the cost of oil properties sold. His contention is that, at the time of the sale in question, Congress had not in terms re- 1591-1603. The 1926 Act, Feb. 26, 1926, § 202 (b) 44 Stat. 9, 11-12, has a similar provision with respect to deductions “ allowable . . . under this Act or prior income tax laws.” See Regulations 69, Art. 1561. UNITED STATES v. LUDEY. 299 295 Opinion of the Court. quired the deductions in the case of any property, and that special reasons exist why the acts should be construed as not requiring the deductions in the case of oil wells. He urges that a corporation organized for the purpose of utilizing a wasting property, like an iron mine, is not deemed to have divided a part of its capital, merely because it has distributed the net proceeds of its mining operations; that this is true even where the necessary result of the operation is a reduction of the mineral reserve ; that, a fortiori, the proceeds of oil mining are to be deemed income, not a partial return of capital, since there is no ownership in oil until it is actually reduced to possession; that a purchase of an oil reserve cannot be likened to the purchase of a certain number of barrels of oil; that an oil reserve is not a reservoir; that Congress allowed the deduction from gross income for depreciation and depletion probably as a reward in an extrahazardous enterprise in order to encourage new producing properties; and that to allow the deductions would result, in the event of a sale of the property, in taking back the rewards so offered. The Government contends that in operating the properties Ludey disposed, in the form of oil, of part of his capital assets; that in the extraction of the oil he consumed so much of the equipment as was represented by the depreciation and disposed of so much of the oil reserves as was represented by the depletion; that the sale of the properties made by him in 1917 was not a sale of all of the property represented by the original cost of $95,^)77.33, since physical equipment to the amount of the depreciation, and oil reserves to the amount of the depletion, had been taken from it during the preceding years; and that, for this reason, the cost to plaintiff of the net property sold in 1917 was not $95,977.33, but $53,258.36. The Court of Claims did not consider whether ordinarily deductions for depreciation and for depletion from the 300 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. original cost would be proper in determining whether there had been a profit on a sale of property. It held that no deduction from original cost should be made here because of the nature of oil mining properties. The deduction for depletion was, in its opinion, wrong, because oil properties are in essence merely the right to extract from controlled land such oil as the owner of the right can find and reduce to possession; because the existence of oil in any parcel of land is dependent upon the movement which the oil makes from time to time under the surface; and because whether there is oil in place which can be reduced to possession, and if so, how much, cannot be definitely determined. It held that, in the case at bar, the right to explore for and take out oil may actually have been more valuable at the time of the sale than at the time of the purchase; and that, for this reason, the removal of the oil by plaintiff during the years of operation cannot be said to have depleted the capital. It held that the depreciation was not deductible, because wear and tear of equipment was an expense or incident of the business. We are of opinion that the revenue acts should be construed as requiring deductions for both depreciation and depletion when determining the original cost of oil properties sold. Congress, in providing that the basis for determining gain or loss should be the cost or the 1913 value, was not attempting to provide an exclusive formula for the computation.3 The depreciation charge permitted as a deduction from the gross income in determining the taxable income of a business for any year represents the reduction, during the year, of the capital assets through wear and tear of the plant used. The amount of the allowance for depreciation is the sum which should be 8 See Appeal of Even Realty Co., 1 B. T. A. 355. Compare Appeal of Steiner Coal Co., 1 B. T. A. 821; Appeal of W. W. Carter Co., 1 B. T. A. 849; Appeal of Keighley Mfg. Co., 2 B. T. A. 10. UNITED STATES v. LUDEY. 301 295 Opinion of the Court. set aside for the taxable year, in order that, at the end of the useful life of the plant in the business, the aggregate of the sums set aside will (with the salvage value) suffice to provide ah amount equal to the original cost. The theory underlying this allowance for depreciation is that by using up the plant, a gradual sale is made of it. The depreciation charged is the measure of the cost of the part which has been sold. When the plant is disposed of after years of use, the thing then sold is not the whole thing originally acquired. The amount of the depreciation must be deducted from the original cost of the whole in order to determine the cost of that disposed of in the final sale of properties.4 Any other construction would permit a double deduction for the loss of the same capital assets. Such being the rule applicable to manufacturing and mercantile businesses, Ho good reason appears why the business of mining should be treated differently. The reasons urged for refusing to apply the rule specifically to oil mining properties seem to us unsound. If the equipment had been used by its owner on the oil properties owned by another, it would hardly be Contended that the depreciation through Wear and teat resulting from its use should be ignoted in determining, on a sale of the equipment, whether its owner had made a gain or a loss. The fact that the equipment sold is owned by 4 Under regulations of the Bureau the amount of the year’s depreciation is required to be fixed in accordance with a reasonably consistent plan; and it must, in order to be allowed, have been entered on the books of the business either as a deduction from the book value of the plant or as a credit to a depreciation reserve account. See Regulations 33 Revised, Aft. 159; Regulations 45, Art. 169; Regulations 62, Art. 169; Regulations 65, Art 169; Regulations 69, Art 169. In either event it would be reflected in the annual balance sheet. After the total of such credits equals the original cost no further deduction is allowed. 302 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. the person who owned the mining rights, like the fact that it is used in one class of mining rather than in another, may have an important bearing both upon the price realized on the sale and upon the rate of depreciation which should be allowed; but these facts cannot affect the question whether the part which has been theretofore consumed by use shall be ignored in determining whether a sale of what remains has resulted in a loss or a gain. The depletion charge permitted as a deduction from the gross income in determining the taxable income of mines for any year represents the reduction in the mineral contents of the reserves from which the product, is taken. The reserves are recognized as wasting assets. The depletion effected by operation is likened to the using up of raw material in making the product of a manufacturing establishment. As the cost of the raw material must be deducted from the gross income before the net income can be determined, so the estimated cost of the part of the reserve used up is allowed. The fact that the reserve is hidden from sight presents difficulties in making an estimate of the amount of the deposits. The actual quantity can rarely be measured. It must be approximated. And because the quantity originally in the reserve is not actually known, the percentage of the whole withdrawn in any year, and hence the appropriate depletion charge, is necessarily a rough estimate. But Congress concluded, in the light of experience, that it was better to act upon a rough estimate than to ignore the fact of depletion. The Corporation Tax Law of 1909 had failed to provide for any deduction on account of the depletion of mineral reserves. Stratton’s Independence v. Howbert, 231 U. S. 399; von Baumbach v. Sargent Land Co., 242 U. S. 503; United States v. Biwabik Mining Co., 247 U. S. 116; Goldfield Consolidated Mines Co. v. Scott, 247 U. S. UNITED STATES v. LUDEY. 303 295 Opinion of the Court. 126. The resulting hardship to operators of mines induced Congress to make provision in the Revenue Law of 1913 and all later Acts for some deduction on account of depletion in determining the amount of the taxable income from mines? It is not lightly to be assumed that Congress intended the fact to be ignored in determining whether there was a loss or a gain on a sale of the mining properties. . The proviso limiting the amount of the deduction for depletion to the amount of the capital invested shows that the deduction is to be regarded as a return of capital, not as a special bonus for enterprise and willingness to assume risks. It is argued that, because oil is a fugacious mineral, it cannot be known that the reserve has been diminished by the operation of wells. Perhaps some land may be discovered which, like the Widow’s cruse, will afford an inexhaustible supply of oil. But the common experience of man has been that oil wells, and the territory in which they are sunk, become exhausted in time. Congress in providing for the deduction for depletion of oil wells acted on that experience. Compare Lynch v. Alworth-Stephens Co., 267 U. S. 364. In essence, the deduction for depletion does not differ from the deduction for depreciation. The Court of Claims erred in holding that no deduction should be made from the original cost on account of depreciation and depletion; but it does not follow that the amount deducted by the Commissioner was the correct one. The aggregate for depreciation and depletion claimed by Ludey in the income tax returns for the years 1913, 1914, 1915 and 1916, and allowed, was only $5,156. 6 The Bureau requires that taxpayers claiming depletion deductions shall keep a ledger account in which deductions claimed are credited against the cost of the property, or that a depletion reserve account be set up. See Regulations 33 Revised, Art. 171, 172; Regulations 45, Art. 216; Regulations 62, Art 216; Regulations 65, Art. 217; Regulations 69, Art. 217. 304 OCTOBER TERM, 1926. Syllabus. 274 U.S. He insists that more cannot be deducted from the original cost in making the return for 1917. The contention is unsound. The amount of the gain on the sale is not dependent on the amount claimed in earlier years. If in any year he has failed to claim, or has been denied, the amount to which he was entitled, rectification of the error must be sought through a review of the action of the Bureau for that year. He cannot choose the year in which he will take a reduction. On the other hand, we cannot accept the Government’s contention that the full amount of depreciation and depletion sustained, whether allowable by law as a deduction from gross income in past years or not, must be deducted from cost in ascertaining gain or loss. Congress doubtless intended that the deduction to be made from the original cost should be the aggregate amount which the taxpayer was entitled to deduct in the several years. The findings do not enable us to determine what that aggregate is. The sale included several properties purchased at different times. The deduction allowable in the several years for each of the properties is not found. Under the Act of 1913 the full amount of the depletion was not necessarily deductible. In order that the amount of the gain in 1917 may be determined in the light of such facts, the case is remanded for further proceedings in accordance with this opinion. Reversed. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY ET AL. V. SPILLER ET AL. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 577. Argued April 12, 1927.—Decided May 16, 1927. 1. Assuming that a shipper’s claim for moneys collected from him by a railroad through excessive charges might be entitled to prefer- ST. LOUIS & S. F. R. R. v. SPILLER. 305 304 Syllabus. ential payment from receivers of the railroad, subsequently appointed, if the moneys were traced into their hands, they are not so traced by showing that, for years which elapsed between the time of the overcharges and the transfer of the railroad property from the receivership to a new company, the old company and the receivers had at all times in banks on which checks for current expenses were drawn, an aggregate working balance largely exceeding the claim. P. 309. 2. The equitable doctrine giving preferential payment out of operating income accruing during a railroad receivership to debts previously incurred by the railroad corporation for labor, supplies, etc., does not apply to liabilities for excess charges illegally exacted of a shipper which accrued many years before the receivership began. P. 310. 3. A claim to recover excess transportation charges which arose many years before the property of the railroad making them went into the hands of receivers and passed to a new company, can not be allowed preferential payment on the ground of public policy. P. 311. 4. A provision in a decree foreclosing a railway mortgage which exempted the purchaser from paying claims not already presented in accordance with orders theretofore made, excepting claims which might “ arise ” after entry of the decree, is to be construed as employing the term “arise” in the sense of “accrue”; and a claim for overcharges against the mortgagor railroad arose in that sense at least as early as the time when the claimant obtained his reparation order from the Interstate Commerce Commission and not when judgment was recovered upon the order. P. 312. 5. An unsecured creditor of an insolvent railroad has no standing to attack a reorganization plan upon the ground that he was not offered an opportunity to participate, when his exclusion was due to his own failure to file his claim in the foreclosure suit within the time limited by an order. P. 313. 6. In this connection, it is immaterial that the excluded creditor had no actual knowledge of the order limiting time for filing claims, notice by publication being legally sufficient; nor did the fact that his claim was being contested in other litigation prevent him from filing it on time. P. 313. 7. Where an unsecured creditor of a railroad prosecuted his claim diligently in an independent suit before and after the railroad passed into a receivership and was sold to a new company pursuant to a plan of reorganization, during which period his suit was 55514°—28----20 306 OCTOBER TERM, 1926. Counsel for Parties. 274 U. S. resisted by the railroad, the receivers, and counsel for the new company, successively; and where, having recovered judgment after the sale, he appeared at the hearing on the order to confirm the sale and gave notice to the old company, the receivers, the reorganization committee, and the new company of his claim and that the judgment would be a charge on the property in the hands of the purchaser, notwithstanding which the new company continued defending his suit and the new securities were issued, Held, that the creditor was not guilty of laches; that his failure to file his claim within the time limited in the foreclosure case and thus conform to the terms of the reorganization plan, did not bar him from participating in its benefits with the other unsecured creditors, if that were still equitably possible; and that such relief might be had as well upon an intervening petition as upon an original bill. P. 314. 14 F. (2d) 284, reversed in part, affirmed in part. Certiorari (273 U. S. 680) to a decree of the Circuit Court of Appeals which reversed a decree of the District Court dismissing an intervening petition in a railroad foreclosure suit. Mr. Frederick H. Wood, with whom Messrs. Edward T. Miller, Alexander P. Stewart, and Robert T. Swaine were on the briefs, for petitioners. Messrs. Walter H. Saunders and David A. Murphy, with whom Messrs. S. H. Cowan and John S. Leahy were on the brief, for respondents. Messrs. Edward J. White and Thomas T. Railey filed a brief as amici curiae, by special leave of Court, on behalf of the Missouri Pacific Railroad Company. Messrs. North T. Gentry, Attorney General of Missouri, and Lee B. Ewing filed a brief as amici curiae, by special leave of Court, on behalf of the State of Missouri. Mr. Clifford B. Allen filed a brief as amicus curiae, by special leave of Court. ST. LOUIS & S. F. R. R. v. SPILLER. 307 304 Opinion of the Court. Mr. Justice Brandéis delivered the opinion of the Court. In 1913, the federal court for eastern Missouri appointed receivers for the St. Louis and San Francisco Railroad. In 1916, the system was sold on foreclosure, was purchased for the Reorganization Committee and was conveyed to the St. Louis-San Francisco Railway Company, which has operated it since. In 1920, Spiller recovered in the federal court for western Missouri a judgment against the old company in personam for $30,212.31 and for counsel fees taxed as costs pursuant to § 16 of the Act to Regulate Commerce.1 Thereupon, he filed in the receivership suit,1 2 upon leave granted, an intervening petition praying that the judgment be satisfied out of the property so acquired by the new company. The Master recommended that the prayers of the petition be granted. The District Court denied Spiller any relief and dismissed the intervening petition without costs to either party. 288 Fed. 612. The Court of Appeals reversed the decree; remanded the case to the lower court with directions to enter a decree for Spiller in the amount of the judgment with interest but without counsel fees; declared that the judgment was prior in lien and superior in equity to the mortgages of the old company; and directed that it be enforced against the property conveyed to the new company. 14 F. (2d) 284. This Court granted the petition of the two companies for a writ of certiorari. 273 U. S. 680. The judgment which Spiller seeks to enforce through the intervening petition was entered by the trial court 1The intervening petition and the decree cover also another judgment for $3,652.97 in favor of Spiller and others. 2 There were in fact four suits; two brought by unsecured creditors and two by the trustees of mortgages under which the foreclosure was had, All the suits were consolidated in May, 1914. 308 OCTOBER TERM, 1926. Opinion of the Court. 274 U. 8. in 1916, after the foreclosure sale and before confirmation thereof; was reversed by the Court of Appeals in 1918; and was reinstated by this Court in 1920. Spiller v. Atchison, Topeka & Santa Fe Ry. Co., 253 U. S. 117. It is for overcharges collected by the old company, in 1906, 1907 and 1908 under a freight tariff which had been increased in 1903 and which was held by the Interstate Commerce Commission to be unreasonable in 1905, and again in 1908. Cattle Raisers' Association v. Missouri, Kansas & Texas R. R. Co. et al., 11 I. C. C. 296; 13 I. C. C. 418. The action in which the judgment was recovered was begun in 1914, after the appointment of the receivers. The reparation order on which the action was based was entered also after their appointment; but the petition for reparation was filed prior thereto. The validity of the judgment as against the old company is not challenged in this proceeding. The question here is whether Spiller is entitled to have it satisfied out of the property of the new company. The railroads contend that in nature the claim is one not entitled to preferential payment; and that, in any event, Spiller is barred by laches or otherwise from obtaining any relief in this suit. The Court of Appeals held that the old company became liable as trustee ex maleficio for overcharges and that this liability is enforceable, as upon a constructive trust, against the property acquired by the new company on foreclosure. It held further that Spiller was not barred by laches or otherwise, because of the provision of the foreclosure decree, by which the purchaser became bound to pay, as a part of the purchase price, any unpaid claims of creditors of the old company which should be adjudged superior in equity to its mortgages, the court reserving to itself jurisdiction to determine the amount and validity of any such claim. First. The contention that the judgment constitutes a lien or equity upon the property of the new company, ST, LOUIS & S. F. R. R. v. SPILLER. 309 304 Opinion of the Court. as upon a constructive trust, rests upon the following argument. The freight rates being unreasonable were unlawful. The shipper was obliged to pay the charges exacted, although they were unlawful, because they were the published rates. As the shipper was obliged to pay the unlawful charges the payment was made under duress. One may be held as trustee ex maleficio of funds obtained by duress as well as of those procured by fraud. The old company by collecting the unlawful charges became trustee ex maleficio of the funds collected. These can be traced and may be followed. They passed to the receivers who took the funds with notice and without paying value. Upon the foreclosure they passed to the new company. It also took them with notice and is subject to the trust, either because the shipper’s equitable lien or interest was not cut off by the foreclosure sale, to one with notice, in a suit to which the shipper was • not a party, or because the new company agreed to pay pursuant to the foreclosure decree claims prior in lien and superior in equity to the mortgages of the old company. We need not consider whether, in the absence of legislation, charges illegally exacted by a carrier may be recovered under the doctrine of a constructive trust; or whether the alleged equitable" remedy is applicable to overcharges subject to the Interstate Commerce Act, which provides a different remedy;3 or whether the equitable reipedy, if any, has been lost by proceeding to judgment at law. For, even if the overcharges when collected, were subject to a constructive trust in favor of the shipper, the contention that the money exacted by 3 See §§ 8, 16(1), and 16(2) of the Interstate Commerce Act as it stood at the time of the overcharges in question, Act of Feb. 4, 1887, c. 104, 24 Stat. 379, 382, 384, as amended by the Act of June 29, 1906, c. 3591, 34 Stat. 584, 590. See also Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426. 310 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. the old company in 1906, 1907 and 1908 can be traced into the hands of the receivers is unfounded. The money was not ear-marked. It was mingled when collected with other money received from operation. And no special account was kept of it. The latest exaction occurred five years before the appointment of the receivers. The assertion that the money collected can be traced into the receiver’s hands is confessedly without any support except the stipulated fact that, throughout the ten years which elapsed between the earliest exaction and the transfer of the properties to the new company, the old one and the receivers had, at all times, in the several banks on which checks for current expenses were drawn, a working balance, in the aggregate, largely in excess of Spiller’s claim. Such a showing fails to bring the present case within the rule by which, when trust funds are mingled with others, the cestui may assert an equitable lien upon the mingled mass to the extent of his contribution thereto.4 * & American Can Co. v. Williams, 178 Fed. 420, 423; In re A. D. Matthews’ Sons, 238 Fed. 785, 787. An illegal exaction does not impress an indelible trust upon all funds which the wrongdoer and his successors may thereafter have on deposit in their banks. For aught that appears, all the money illegally exacted may have been spent for current operating expenses. Second. Spiller contends that he was entitled to preferential payment of his judgment for the excess charges, out of operating income accruing during the receivership, on the doctrine of Fosdick v. Schall, 99 U. S. 235, 251-255. See New York Dock Co. v. S. S. “Poznan,” 4 Compare National Bank v. Insurance Co., 104 U. S. 54, 63-68; Schuyler v. Littlefield, 232 U. S. 707, 710; United States v. Leary, 245 U. S. 1, 5; Cunningham v. Brown, 265 U. S. 1, 11-13; Southern Cotton Oil Co. v. EUiotte, 218 Fed. 567, 570-571; In re A. Bolognesi & Co., 254 Fed. 770; Knatchbull v. Hallett, 13 Ch. Div. 696. ST. LOUIS & S. F. R. R. v. SPILLER. 311 304 Opinion of the Court. ante, p. 117. It is argued that the test of this equity is the nature of the claim; that a liability for excess charges unlawfully exacted by the carrier before the receivership is an expense of operation like a debt incurred for labor, supplies, equipment or improvements; and that, as such, it is entitled to priority over bondholders. We need not determine whether the noncontractual claim here in suit is in its nature within the class of debts entitled to preferential payment under the doctrine of Fosdick v. Schall. For, by long established practice, the doctrine has been applied only to unpaid expenses incurred within six months prior to the appointment of the receivers. See Lackawanna Coal Co. v. Trust Co., 176 U. S. 298, 316. Compare Gregg v. Metropolitan Trust Co., 197 U. S. 183. The cases in which this time limit was not observed, are few in number and exceptional in character. See Burnham v. Bowen, 111 U. S. 776, 780-783; Union Trust Co. v. Morrison, 125 U. S. 591. In no case which has come to our attention has the doctrine been applied to liabilities which, like those here in question, accrued many years before the receivership began. Third. Preferential payment is urged also on the ground of public policy. The argument is that the carrier is invested through its franchise with a part of the sovereign power; that in the exercise of the power conferred the old company exacted illegal rates which the shipper was obliged by law to pay; that when the old company’s property passed into the hands of the court it was augmented by the illegal exactions; that it became the court’s duty to make restitution; and that, having failed to do so while the property was in its hands, the court may require payment from the new company. It may be assumed that this claim for overcharges is meritorious in character; but the fact that it arose many 312 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. years before the appointment of the receivers is conclusive against including it among those entitled to preferential payment. Fourth. In order to establish as against the new company either the alleged equity or a right to preferential payment, it was moreover assumed to be necessary that the claim should be one of those which the purchaser, under the decree of foreclosure, agreed to pay, as part of the purchase price. The decree provided that the purchaser would not be required to pay any “ claim or demand which has not been presented in this cause in accordance with the orders heretofore made requiring presentation thereof ” unless it be “ a claim or demand which may arise after the entry of this decree.” An interlocutory decree had ordered that all claims be presented before February 1, 1916 or be barred of enforcement against the property in the hands of the receivers or the proceeds thereof. Due notice of the order had been given by publication. Spiller did not file his claim within the time limited. He contends that the time limit has no application to his claim, because it arose after entry of the decree. The argument is that, while the claim accrued in 1914, when the reparation order was entered, or earlier, when the overcharges were illegally collected, it did not “ arise ” until 1920, when this Court, reversing the Court of Appeals, reinstated the judgment sought to be enforced by the intervening petition; that, in this connection, the term “ arise ” must have been used by the District Court in a sense different from “ accrue.” For, knowing through its receivers, that their counsel were, at the time of the entry of the decree of foreclosure, hotly contesting Spiller’s claim, and that he was asserting that it was superior in equity to the mortgages to be foreclosed, and knowing also that the claim had not been filed in the receivership suit, the court must have intended that, if ST. LOUIS & S. F. R. R. v. SPILLER. 313 304 Opinion of the Court. Spiller ultimately prevailed, his claim should be satisfied by the new company. Unless so construed, the provision for claims which may “ arise ” after the decree would be practically inoperative. The argument is not persuasive. We are of opinion that the term “ arise ” was used in the decree as the equivalent of “ accrue ”; that Spiller’s claim arose at least as early as 1914, when th© reparation order was entered, not when the judgment was recovered; and that the new company did not assume to pay it. See Phillips v. Grand Trunk Ry. Co., 236 U. S. 662, 666. Moreover, while the barring clause of the final decree excepted claims arising after entry thereof, the clause stating the liability of the purchaser included only claims against the old company which should be adjudged prior in equity to the old company’s mortgages. We have already decided that the claims in question are not of such a character. Fifth. Spiller contends also that he is entitled, under the doctrine of Northern Pacific Ry. Co. v. Boyd, 228 U. S. 482, to require the new company to satisfy in full his judgment against the old. The argument is that, under the reorganization plan, stockholders of the old company were allowed to participate in the new, but that he, a creditor, was not offered an opportunity to do so. There is no evidence in the record which supports the assertion that Spiller was not afforded an opportunity of participating in the reorganization. The contrary appears. The order confirming the foreclosure recites that “ a fair and timely offer of cash ... or participation” was made to those unsecured creditors who had filed claims. Spiller did not file his claim. The fact that he did not have actual knowledge of the order limiting the time for filing claims is not material in this connection. Notice by publication was legally sufficient. The mere fact that his claim was contested .did not exclude him from the scope of the order. He might have 314 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. filed it although he was litigating elsewhere. He cannot bring himself within the doctrine of the Boyd case by showing that no offer was made to him personally. For aught that appears an offer would have been made, or his rights otherwise preserved, if he had filed his claim. There is no occasion to consider whether a petition for intervention filed in the receivership proceedings four years after confirmation of the foreclosure sale is an appropriate method of enforcing the claim on this theory. Sixth. While the Court of Appeals erred in granting the specific relief prayed in the petition for intervention, it does not follow that Spiller must be denied all remedy. He was guilty of a serious inadvertence in not filing his claim in the receivership suit within the time limited by the interlocutory order. But it is clear that he has not been guilty of laches. Southern Pacific Co. v. Bogert, 250 U. S. 483, 488-490. And it does not appear that his inadvertence misled in any way the court, the receivers, the Reorganization Committee or the new company. He had prosecuted his claim with vigor for years before the receivers were appointed. His diligence does not appear to have slackened either during the receivership or after the foreclosure sale. Throughout the whole period, the claim appears to have been resisted with equal vigor. After the old company ceased to function, counsel for the receivers conducted the defense. After the receivers ceased to function, counsel for the new company conducted the defense. It is clear that neither the receivers nor the new company considered the failure to file the claim in the receivership a bar to the relief. Before Spiller recovered judgment in the trial court, the sale on foreclosure was had; but the hearing on the order to confirm the sale was yet to be held. At that hearing Spiller gave, before the confirmation of the sale, notice in open court, and otherwise to the old company, to the receivers, to the Reorganization Committee and ST. LOUIS & S. F. R. R. v. SPILLER. 315 304 Opinion of the Court. to the new company, that he had recovered judgment fourteen days before. He notified them that he claimed that the purchaser would take the property subject to all his rights; and that these included a charge upon the property in the hands of the purchaser for full payment of the judgment. With knowledge of Spiller’s claims, the Reorganization Committee and the new company took over the property. Later, the new company assumed the further defense to the action in which the judgment had been recovered. The issue of the securities of the new company and the distribution of its stock among stockholders in the old occurred after these notices of Spiller’s claim had been given. Under such circumstances, neither the long delay, nor the failure to file claims as required by the interlocutory and final decrees, should operate to prevent the appropriate relief;5 and the District Court had jurisdiction to grant it. Compare Julian v. Central Trust Co., 193 U. S. 93; Wabash Railroad v. Adelbert College, 208 U. S. 38, 54-57. The new company contends, that since the shipper’s claim was not filed within the time limited by the interlocutory decree, it was among those declared barred by the terms of the final decree; and that by intervening he estopped himself from obtaining any relief.6 No good reason is shown why relief may not be had as well upon an intervening petition as upon an original bill. As this may be done, he should be put, as nearly as may be consistently with the rights of others, into the position which he would have occupied had he filed his claim in the 6 See Williams v. Gibbes, 17 How. 239, 25^-257; Park v. New York, L. E. & W. R. R. Co., 140 Fed. 799; Employers’ Assur. Corp. v. Mahogany Co., 6 F (2d) 945. Compare Farmers’ Trust Co. v. Chicago, etc., R. R. Co., 118 Fed. 204; Western N. Y., etc. Ry. Co. v. Penn Refining Co., 137 Fed. 343. 6 Compare Swift v. Black Panther Gas Co., 244 Fed. 20; Conu-mercial Electrical Supply Co. v. Curtis, 288 Fed. 657. 316 OCTOBER TERM, 1926. Syllabus. 274 U.S. receivership proceedings in the proper time. It does not appear that it is not possible for the new company to give him the benefit now of the offer which was made by the Reorganization Committee to the other unsecured creditors of the old company; nor that such a course would be inequitable to others in interest. The ascertainment of the relevant facts and the precise form of the relief must be left to the District Court. The decree of the Circuit Court of Appeals is affirmed in so far as it reversed the decree of the District Court dismissing the intervening petition; and is reversed in so far as it directed that the judgment is a prior lien enforceable for the full amount exclusive of counsel fees against the property of the new company. Decree affirmed in part, and reversed in part. BALTIMORE STEAMSHIP COMPANY et al. v. PHILLIPS. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 271. Argued April 18, 1927.—Decided May 16, 1927. 1. A judgment in an action for personal injuries, based on one ground of negligence, bars a second action, for the same injuries, based on another ground of negligence. P. 319. 2. A cause of action does not consist of facts, but of the violation of a right which the facts show. The mere multiplication of grounds of negligence alleged as causing the same injury does not result in multiplying the causes of action. P. 321. 3. Therefore the plaintiff is bound to set forth in his first action for damages every ground of negligence which he claims to have existed and upon which he relies, and cannot be permitted, as was attempted here, to rely upon them by piecemeal in successive actions to recover for the same wrong and injury. Distinguishing Troxell v. Del. Lack. & West. R. R., 227 U. S. 434, where the ground of negligence in the second action was not actionable under the state law governing the first action. P. 321. BALTIMORE S. S. CO. v. PHILLIPS. 317 316 Opinion of the Court. 4. By § 20 of the amended Merchant Marine Act, a seaman has a right of action for personal injuries when due to negligence of officers or employees of the ship as well as when resulting from defects due to negligence, which he may prosecute (under the federal law) either in the state court or in the admiralty court; and every ground of negligence open in the former would be equally so in the latter. P. 324. 5. A judgment merely voidable because based upon an erroneous view of the law is not open to collateral attack, but can be corrected only by a direct review and not by bringing another action upon the same cause. P. 325. 6. Plaintiff sued first in the court of admiralty, to recover damages for a personal injury. Finding that the accident was not due to the negligence alleged—viz., failure to provide a safe place to work, unseaworthiness and insufficiency of gear, and incompetency of officers employed on vessel—and being of the erroneous impression, shared by counsel, that the negligence of officers or members of the crew, found to be the cause, was not indemnifiable in admiralty, the court gave judgment, on an alternative prayer, for cost of maintenance and cure only. Held that the judgment was a bar to a second action for the same injury, begun in a state court, alleging negligence of the shipowners, their officers and employees in the control and operation of the vessel and appliances. 9 F. (2d) 902, reversed. Certiorari (270 U. S. 638) to a judgment of the Circuit Court of Appeals which affirmed a judgment for damages in an action for personal injuries, begun in a state court and removed to the federal court. Mr. Arthur M. Boat, with whom Solicitor General Mitchell, and Messrs. Chauncey G. Parker and Harold F. Birnbaum were on the brief, for petitioners. Mr. Edgar J. Treacy for respondent. Mr. Justice Sutherland delivered the opinion of the Court. The respondent, an infant 18 years of age, while employed on board a vessel operated by petitioners was injured by the fall of a strongback used to support a portion 318 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. of the hatch, and as a result suffered the amputation of a leg. A libel was filed in admiralty to recover damages in the sum of $15,000 against the petitioners and the United States in the federal district court for the district of Maryland. The libel alleged that the injury was caused by negligence in failing to provide a safe place to work, and to use reasonable care to avoid striking respondent, and by the unseaworthiness and insufficiency of the gear and tackle employed on the vessel. By an amendment, further specifications of negligence were added to the effect that the United States had failed to provide a proper and sufficient gear or socket to support the strongback, that the officers of the vessel were incompetent, and that there wai owing to the injured person a special duty because of his youth and inexperience. Libelant prayed that, if negligence should not be established, he have a decree for wages, maintenance and cure. After a trial, the district court held that upon the evidence the accident was not due to the negligence alleged but to the grossly negligent way in which dunnage was taken out of the hold, and that under the decisions no recovery could be had for damages upon that ground. By the decree libelant was denied full indemnity by way of damages and awarded the sum of $500 as the cost of maintenance and cure; and this amount was paid and the decree satisfied. Phillips v. United States, 286 Fed. 631. Subsequently, this action was brought in the Supreme Court of the State of New York against the petitioners— the United States not being joined—and removed to the federal district court for the eastern district of New York. The complaint alleges negligence on the part of the petitioners and their officers and employees in the control and operation of the vessel and appliances. The allegations of fact as to the way in which the accident happened are substantially the same in both cases. Petitioners answered in the present case, setting up, among other things, BALTIMORE S. S. CO. v. PHILLIPS. 319 316 Opinion of the Court. the decree in the admiralty case as res judicata; and by stipulation of the parties this was argued before trial. The district court at first sustained the plea, but, upon reargument, set aside its order to that effect and held the plea bad. A trial resulted in a verdict*and judgment for respondent. The court of appeals affirmed the judgment, holding in respect of the plea of res judicata that the second action was based upon a different cause of action. 9 F. (2d) 902. And this presents the sole question for consideration here. The effect of a judgment or decree as res judicata depends upon whether the second action or suit is upon the same or a different cause of action. If upon the same cause of action, the judgment or decree upon the merits in the first case is an absolute bar to the subsequent action or suit between the same parties or those in privity with them, not Only in respect of every matter which was actually offered and received to sustain the demand, but also as to every ground of recovery which might have been presented. But if the second case be upon a different cause of action, the prior judgment or decree operates as an estoppel only as to matters actually in issue or points controverted, upon the determination of which the judgment or decree was rendered. Cromwell v. County of Sac, 94 U. S. 351, 352-353; United States v. Moser, 266 U. S. 236, 241. There is some confusion in the decisions as to whether the present case should fall within the first or the second branch of the rule, but we are of opinion that the great weight of authority, both in respect of the number of decisions and upon reason, sustains the view that the facts here gave rise to a single cause of action for damages and that the first branch of the rule applies. In United States v. California & Ore. Land Co., 192 U. S. 355, this court announced the general rule to be that a judgment or decree upon the merits concludes the parties as to all media concludendi or grounds 320 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. for asserting the right, known when the suit was brought. In that case a bill had been brought to have certain patents for land issued by the United States declared void on the ground that the lands were within an Indian reservation and, therefore, reserved from the operation of the grant. The land company pleaded in bar that the United States had filed an earlier bill seeking the same relief and that a final decree had been entered dismissing that bill. The only thing which the court' could find to distinguish the two suits was that in the latter the United States had put forward a new ground for its prayer, but in both cases it sought to establish its own title to the fee. This court sustained the plea in bar, saying, “ But the whole tendency of our decisions is to require a plaintiff to try his whole cause of action and his whole case at one time. He cannot even split up his claim, Fetter v. Beale, 1 Salk. 11; Trask v. Hartford & New Heaven Railroad, 2 Allen, 331; Freeman, Judgments, 4th ed., §§ 238, 241; and, a fortiori, he cannot divide the grounds of recovery. Unless the statute of 1889 put the former suit upon a peculiar footing, the United States was bound then to bring forward all the grounds it had for declaring the patents void, and when the bill was dismissed was barred as to all by the decree.” The same general doctrine is stated in Stark v. Starr, 94 U. S. 477, 485, that “ a party seeking to enforce a claim, legal or equitable, must present to the court, either by the pleadings or proofs, or both, all the grounds upon which he expects a judgment in his favor. He is not at liberty to split up his demand and prosecute it by piecemeal, or present only a portion of the grounds upon which special relief is sought, and leave the rest to be presented in a second suit, if the first fail. There would be no end to litigation if such a practice were permissible.” And see also, Werlein v. New Orleans, 177 U. S. 390, 398-400. BALTIMORE S..S. CO. v. PHILLIPS. 321 316 Opinion of the Court. Here the court below concluded that the cause of action set up in the second case was not the same as that alleged in the first, because the grounds of negligence pleaded were distinct and different in character, the ground alleged in the first case being the use of defective appliances and, in the second, the negligent operation of the appliances by the officers and co-employees. Upon principle, it is perfectly plain that the respondent suffered but one actionable wrong and was entitled to but one recovery, whether his injury was due to one or the other of several distinct acts of alleged negligence or to a combination of some or all of them. In either view, there would be but a single wrongful invasion of a single primary right of the plaintiff, namely, the right of bodily safety, whether the acts constituting such invasion were one or many, simple or complex. A cause of action does not consist of facts, but of the unlawful violation of a right which the facts show. The number and variety of the facts alleged do not establish more than one cause of action so long as their result, whether they be considered severally or in combination, is the violation of but one right by a single legal wrong. The mere multiplication of grounds of negligence alleged as causing the same injury does not result in multiplying the causes of action. “ The facts are merely the means, and not the end. They do not constitute the cause of action, but they show its existence by making the wrong appear. 1 The thing, therefore, which in contemplation of law as its cause, becomes a ground for action, is not the group of facts alleged in the declaration, bill, or indictment, but the result of these in a legal wrong, the existence of which, if true, they conclusively evince.’ ” Chobanian v. Washburn Wire Company, 33 R. I. 289, 302. The injured respondent was bound to set forth in his first action for damages every ground of negligence which 55514°—28----21 322 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. he claimed to exist and upon which he relied, and cannot be permitted, as was attempted here, to rely upon them by piecemeal in successive actions to recover for the same wrong and injury. Columb v. Webster Mjg. Co., 84 F. 592; Cincinnati, N. 0. & T. P. Ry. Co. v. Gray, 101 F. 623, 631; Smith v. Missouri Pac. Ry. Co., 56 F. 458; Payne v. N. Y. S. & W. R. R. Co., 201 N. Y. 436, 440; Chobanian v. Washburn Wire Company, supra, pp. 300-304; Senn v. Southern Ry. Co., 135 Mo. 512, 519; Munro v. Railroad, 155 Mo. App. 710, 727; Schweinjurth v. Railway Co., 60 Oh. St. 215, 230-231; Berube v. Horton, 199 Mass. 421, 425-426. Many other cases are to the same effect. In the case last cited there was a declaration in an action for personal injuries containing a count at common law alleging failure to provide a reasonably safe place, and a count under the Employers Liability Act alleging a defect in the ways, works, or machinery. To this declaration, after the expiration of the period of the statute of limitations, an amendment was allowed alleging negligence of the defendant’s superintendent as the cause of the same accident. The .Massachusetts Supreme Court held that the statute of limitations could not be invoked because the amendment did not state a new cause of action, but was simply another statement of the same cause of action, that cause of action being “ the injury under the circumstances under which it took place.” Respondent cites and relies upon The Rolph, 299 Fed. 52; but the case is not in point. There the first action was for wages and maintenance alone. Here, in the first action, negligence causing a personal injury, was distinctly alleged as the primary ground of recovery. The claim for wages, maintenance and cure was purely dependent and contingent. The judgment of the court below, as shown by its opinion, was based, in the main if not entirely, upon Troxell BALTIMORE S. S. CO. v. PHILLIPS. 323 316 Opinion of the Court. v. Del., Lack. & West. R. R., 227 U. S. 434, which was construed as holding “ that it was one cause of action not to furnish safe cars, and another to use safe cars carelessly.” The opinion in that case is not to be read as announcing any such general rule. If so, in the light of the foregoing discussion, we now should feel obliged to disaffirm it. But the decision rests upon another and a narrow ground, and its authority must be confined accordingly. Mrs. Troxell as surviving widow prosecuted an action against the railway company under a state statute to recover for the death of her husband as the result of a negligent failure to provide safe instrumentalities. After a judgment against her, she brought a second action as administratrix under the federal Employers Liability Act, alleging as a ground of recovery negligence of a fellow-servant. The first case was tried and decided exclusively upon the state law, under which law, as this court said, “ there could be no recovery for the negligence of the fellow-servants of the deceased,” and, consequently, that ground, it was said, was not and could not be involved in or concluded by the first action,—in other words, as matter of law recovery upon that ground was not open to her in the first action. Obviously, if the court had been of opinion that a recovery upon that ground of negligence could have been had in the action prosecuted under the state law, the decision would have sustained the view that there was but one cause of action. Whether the later decision in Wabash R. R. v. Hayes, 234 U. S. 86, 90, has rendered doubtful the soundness of this conclusion even as thus narrowly limited (see Delaware, L. & W. R. Co. v. Yurkonis, 220 F. 429, 433), we do not pause to consider. It is enough to say that here, as we shall proceed to show, both actions were brought under the same federal law, and the basis upon which the Troxell decision rested is entirely lacking. 324 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. The injury to respondent occurred after the passage of the amendment of § 20 of the Merchant Marine Act by § 33, c. 250, 41 Stat. 988, 1007, which provides: “ That any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; . . .” That amendment incorporates into the maritime law the provisions of the federal Employers Liability Act, c. 149, 35 Stat. 65; and the effect by virtue of § 1 of that Act is to give a right of action for an injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of the ship, as well as for an injury or death resulting from defects due to negligence, etc., and irrespective of whether the action is brought in admiralty or at law. Panama R. R. Co. v. Johnson, 264 U. S. 375; Engel n. Davenport, 271 U. S. 33; Panama R. R. Co. v. Vasquez, 271 U. S. 557. It follows that here both the libel and the subsequent action were prosecuted under the maritime law, and every ground of recovery, open to respondent in the second case, was equally open to him in the first. But evidently in the first proceeding both court and counsel misinterpreted the effect of § 33, and proceeded upon the erroneous theory, that in admiralty the rule laid down in The Osceola, 189 U. S. 158, 175, “ That the seaman is not allowed to recover an indemnity for the negligence of the master, or any member of the crew, but is entitled to maintenance and cure, whether the injuries were received by negligence or accident,” was still in force. Otherwise, it is quite apparent from the language of the opinion that an amendment would ZAHN v. BD. OF PUBLIC WORKS. 325 316 Syllabus. have been sought and allowed, pleading the ground of negligence afterwards set up in the second action. Nevertheless, the cause of action was one and indivisible, and the erroneous conclusion to the contrary cannot have the effect of depriving the defendants in the second action of their right to rely upon the plea of res judicata. Plaintiff’s claim for damages having been submitted and passed upon, the effect of the judgment in the admiralty case as a bar is the same whether resting upon an erroneous view of the law or not. A judgment merely voidable because based upon an erroneous view of the law is not open to collateral attack, but can be corrected only by a direct review and not by bringing another action upon the same cause. Colburn v. Woodworth, 31 Barb. (N. Y.) 381, 384; Wolverton v. Baker, 86 Cal. 591, 593; Bettys v. C. M. & St. P. R. Co., 43 Iowa 602, 604; Bancroft v. Winspear, 44 Barb. (N. Y.) 209, 215-216; Winslow v. Stokes, 48 N. C. 285. The conclusion that the judgment below must be reversed cannot be avoided without subverting long established principles of general application, which we are not at liberty to set aside for a special case of hardship. Judgment reversed. Mr. Justice Stone concurs in the result. ZAHN et AL. V. BOARD OF PUBLIC WORKS et al. error TO THE SUPREME COURT OF THE STATE OF CALIFORNIA. No. 196. Argued March 7, 1927.—Decided May 16, 1927. 1. A zoning ordinance dividing the City of Los Angeles into five building zones and prescribing the kinds of buildings that may be erected in each zone, held constitutional in its general scope {Euclid v. Ambler Realty Co., 272 U. S. 365), and not violative of due process or equal protection as applied to this case. P. 327. 326 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. 2. The plaintiff’s lot was in a zone limited by the ordinance to buildings for residences, churches, private clubs, educational purposes, etc., and excluding buildings for private business other than physicians’ offices. The value of the lot would be much enhanced if it could be used for business purposes, for which it was favorably situated. Other property in the zone was largely restricted by covenant to residential uses. The entire neighborhood at the time of the ordinance was largely unimproved but in course of rapid development. The conclusion of the city council, on these and other facts, that the public welfare would be promoted by establishing the zone can not be adjudged clearly arbitrary or unreasonable; and this court can not in such circumstances substitute its judgment for theirs. P. 328. 195 Cal. 497, affirmed. Error to a judgment of the Supreme Court of California, on an original application for a writ of mandate commanding the Board of Public Works of the City of Los Angeles to issue to the petitioners a permit for the construction of a business building, suitable for occupation by stores, upon property of the petitioners in that city. An alternative writ was issued, returnable in the District Court of Appeal, which found in favor of the petitioners, holding the city zoning ordinances unreasonable and discriminatory. This was reversed, and the ordinances upheld, by the subsequent judgment of the Supreme Court, here under review. Mr. A. J. Hill for plaintiffs in error. Mr. Lucius P. Green, with whom Mr. Jess E. Stephens was on the brief, for defendants in error. Mr. Justice Sutherland delivered the opinion of the Court. This is a proceeding in mandamus brought in the state court to compel defendants in error to issue a building permit enabling plaintiffs in error to erect a business ZAHN v. BD. OF PUBLIC WORKS. 327 325 Opinion of the Court. building upon a lot lying within a district of the City of Los Angeles restricted by the zoning ordinance of that city against buildings of that character. The ordinance creates five zones, designated as “A,” “ B,” “ C,” “ D,” and “ E,” respectively, and classifies the kinds of buildings, structures and improvements which may be erected ip each. The ordinance is of the now familiar comprehensive type, but in the main regulates only the character of buildings which lawfully may be erected and does not prescribe height and area limitations. It is assailed as being repugnant to the due process of law and equal protection clauses of the Fourteenth Amendment. The property of plaintiffs in error is in zone “ B,” in which, generally stated, the use is limited to buildings for residential purposes, churches, private clubs, educational and similar purposes. All buildings for private business are excluded, with the exception of offices of persons practicing medicine. The state supreme court, in a well reasoned opinion, upheld the ordinance and denied the relief sought. 195 Cal. 497. And see Miller v. Board of Public Works, 195 Cal. 477. The constitutional validity of the ordinance in its general scope is settled by the recent decision of this court in Euclid v. Ambler Co., 272 U. S. 365; and upon the record here we find no warrant for saying that the ordinance is unconstitutional as applied to the facts in the present case. The property of plaintiffs in error adjoins Wilshire Avenue, a main artery of travel through and beyond the city; and if such property were available for business purposes its market value would be greatly enhanced. The lands within the district were, when the ordinance was adopted, sparsely occupied by buildings, those in which business was carried on being limited to a few real estate offices, a grocery store, a market, a fruit stand, and a two-story business block. Much of the land 328 OCTOBER TERM, 1926. Syllabus. 274 U. S. adjoining the boulevard within the restricted district had already been sold with restrictions against buildings for business purposes, although the property of plaintiffs in error and the adjacent property had not been so restricted. The effect of the evidence is to show that the entire neighborhood, at the time of the passage of the zoning ordinance, was largely unimproved, but in course of rapid development. The Common Council of the city, upon these and other facts, concluded that the public welfare would be promoted by constituting the area, including the property of plaintiffs in error, a zone “ B ” district; and it is impossible for us to say that their conclusion in that respect was clearly arbitrary and unreasonable. The most that can be said is that whether that determination was an unreasonable, arbitrary or unequal exercise of power is fairly debatable. In such circumstances, the settled rule of this court is that it will not substitute its judgment for that of the legislative body charged with the primary duty and responsibility of determining the question. Euclid v. Ambler Co., supra, 388, 395; Radice v. New York, 264 U. S. 292, 294; Hadacheck v. Los Angeles, 239 U. S. 394, 408-412, 413-414; Cusack Co. v. City of Chicago, 242 U. S. 526, 530-531; Rast v. Van Deman Lewis, 240 U. S. 342, 357; Price v. Illinois, 238 U. S. 446, 452. Judgment affirmed. BURNS v. UNITED STATES. ERROR TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA. No. 135. Argued November 24, 1926.—Decided May 16, 1927. 1. The California statute defining and punishing criminal syndicalism is not violative of the Fourteenth Amendment. Whitney v. California, post, p. 357. P. 330. BURNS v. UNITED STATES. 329 328 Counsel for Parties. 2. An instruction to a jury must be considered in connection with the evidence bearing on the matter to which it refers and with the charge as a whole. P. 331. 3. To advocate among workers such acts as maliciously stowing the cargo of a ship so that it will shift and cause her to list and return to port, is to teach and abet “ sabotage,” which is defined by the California statute as meaning “ wilful and malicious damage or injury to physical property ”; it is also to teach and abet “ crime ” and “unlawful methods of terrorism.” P. 332. 4. In a prosecution under the California Act Against Criminal Syndicalism, it is not necessary to show that the elements of criminal syndicalism were advocated or taught with the precision of statement required in indictments for criminal acts involved. The purpose and probable effect of the printed matter circulated and of the things said in furtherance of the declared purposes of the organization are to be considered, having regard to the capacity and circumstances of the persons sought to be influenced. P. 335. 5. Exceptions to a charge must be specifically made in order to give the court opportunity then and there to correct errors and omissions, if any; and where a series of instructions are excepted to in mass, the exception will be overruled if any one of them is correct. P. 336. 6. An instruction in a criminal case authorizing the jury to consider certain facts, must be sustained when the record does not purport to contain all the evidence relating to the things referred to, and where it can not be said as a matter of law that they would be improper for consideration if taken in connection with other facts. P. 336. Affirmed. Error to a judgment of the District Court sentencing Burns upon his conviction of the crime of criminal syndicalism, under the California law as extended to Yosemite National Park. Mr. R. W. Henderson, with whom Mr. Walter H. Pollak was on the brief, for plaintiff in error. Solicitor General Mitchell, with whom Assistant Attorney General Luhring and Mr. Harry S. Ridgely, Attorney m the Department of Justice, were on the brief, for the United States. 330 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. Mr. Justice Butler delivered the opinion of the Court. An Act of Congress of June 2, 1920, § 1, c. 218, 41 Stat. 731, provides that, if any offense shall be committed in the Yosemite National Park which is not prohibited by a law of the United States, the offender shall be subject to the same punishment as the) laws of California prescribe for a like offense. Plaintiff in error was indicted for violating within that Park the California Criminal Syndicalism Act, c. 188, California Statutes 1919. The indictment was in two counts. The verdict was guilty on the first count and not guilty on the second. Plaintiff in error, by demurrer and by motion to arrest the judgment, insisted that the statute contravenes the Constitution of the United States. His contention was overruled. The case is here under § 238 of the Judicial Code, before the Amendment of February 13, 1925. The applicable provisions follow: “Section 1. The term ‘ criminal syndicalism ’ as used in this act is hereby defined as any doctrine or precept advocating, teaching or aiding and abetting the commission of crime, sabotage (which word is hereby defined as meaning wilful and malicious physical damage or injury to physical property), or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change. Section 2. Any person who: . . . organizes or assists in organizing, or is or knowingly becomes a member of, any organization, society, group or assemblage of persons organized or assembled to advocate, teach or aid and abet criminal syndicalism . . . is guilty of a felony . . .” Plaintiff in error here contends that, as applied in the district court, these provisions are repugnant to the due process and equal protection clauses of the Fourteenth Amendment. The only attack upon the validity of the law was by the demurrer and motion in arrest. In each BURNS v. UNITED STATES. 331 328 Opinion of the Court. of these, he asserted that the statute “ is in violation of the Fourteenth Amendment of the Constitution of the United States and is void for uncertainty.” But that point is determined adversely to his contentions in Whitney v. California, post, p. 357. The substance of the count on which plaintiff in error was adjudged guilty is that on or about April 10, 1923, at Yosemite National Park, he did “ organize, and assist in organizing, and was, is, and knowingly became, a member of an organization, society, group and assemblage of persons organized and assembled to advocate, teach, aid and abet criminal syndicalism, to wit, The Industrial Workers of the World, commonly known as I. W. W.” 1. Plaintiff in error argues that he is entitled to a new trial because the charge contains the following: “Now, there has been presented to you evidence ... to the effect that this organization, amongst other things, advocated what is known as slowing down on the job, slack or scamped work, such as loading of a ship in such a way that it took a list to port or starboard and therefore had to limp back to port, and things of that kind. I instruct you that under the definition as laid down by the legislature of California, that any deliberate attempt to reduce the profits in the manner that I have described would constitute sabotage.” • He calls attention to the language in section 1 and says that merely loading telephone poles on a ship so as to occasion more work is not physical damage or injury to physical property within the meaning of the statute. If that instruction stood alone it might be thought to permit the jury erroneously to expand the meaning of sabotage beyond that defined in the Act. But it does not stand alone; and the mere comparison of the quoted language of the instruction with the words of the statute is not sufficient to disclose whether there was prejudicial error. The instruction must be taken in connection with 332 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. the evidence bearing on the matter referred to and is to be considered in the light of the charge as a whole. New York Cent. R. R. v. United States, 212 IT. S. 500, 508; Hotema v. United States, 186 IT. S. 413, 416; Spring Drug Co. v. United States, 12 F. (2d) 852, 856; People v. Scott, 6 Mich. 287, 291. There is no contention that plaintiff in error was not connected with the organization substantially as alleged, or that the evidence failed to show it to be the kind of organization specified in the indictment. The record shows that for a number of years he had been a member of the organization; that, at the time alleged and when arrested, he was its authorized delegate and had a quantity of its literature in his possession; that he solicited others to become members and was authorized to initiate new members and to collect initiation fees and dues. It also shows that the organization disseminated large amounts of printed matter declaring its purposes and advocating, means to accomplish them. A “ preamble” was contained in practically all its publications and was printed on the membership card of plaintiff in error. It declares that the working class and employing class have nothing in common; that a struggle must go on between them until the workers organize, take possession of the earth and the machinery of production and abolish the wage system; that the trade unions aid the employing class to mislead the workers into the belief that they have interests in common with their employers; that, “ instead of the conservative motto, ‘ A fair day’s wages for a fair day’s work,’ we must inscribe on our banner the revolutionary watchword, ‘Abolition of the wage system; ’ ” that it is the mission of the working class to do away with capitalism; that the army of production must be organized to carry on when capitalism shall have been overthrown ; that " by organizing industrially we are forming the structure of the new society within the shell of the old.” BURNS v. UNITED STATES. 333 328 Opinion of the Court. Sabotage, as the evidence indicates it to have been advocated and taught by the organization, is not confined, as is the definition contained in the Act, to physical damage and injury to physical property. The organization’s printed matter that was received in evidence contains no precise definition of sabotage, but does give a number of descriptive explanations of what it means. As fairly illustrative, we take the following: “ Three versions are given of the source of the word. The one best known is that a striking French weaver cast his wooden shoe—called a sabot—into the delicate mechanism of the loom upon leaving the mill. The confusion that resulted, acting to the workers’ benefit, brought to the front a line of tactics that took the name of sabotage. Slow work is also said to be at the basis of the word, the idea being that wooden shoes are clumsy and so prevent quick action on the part of the workers. The third idea is that sabotage is coined from the slang term that means ‘ putting the boots ’ to the employers by striking directly at their profits without leaving the job. The derivation, however, is unimportant. It is the thing itself that causes commotion among employers and politicians alike.” The evidence shows that the organization advocated, taught and aided various acts of “ sabotage ” that are plainly within the meaning of that word as defined by the Act. Some examples are: injuring machinery when employed to use it, putting emery dust in lubricating oil, damaging materials when using them in manufacture or otherwise, scattering foul seed in fields, driving tacks and nails in grape vines and fruit trees to kill them, using acid to destroy guy wires holding up the poles provided to support growing vines, putting pieces of wire and the like among vines to destroy machines used to gather crops, scattering matches and using chemicals to start fires to destroy property of employers. One of the witnesses testified; “I heard . , , a member of the I. W. W. say in 334 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. a speech on May 10th, 1923: ‘ When you go back to work, if we do have to go to work, we will put on the wooden shoe? Then he said: ‘ In case you are loading telephone poles on a ship down there, sometime the boss is not looking you can slip a couple of poles crossways and then cover up, and then when that ship goes to sea naturally she will start rolling and the cargo will shift, and then she will come in listed like the one you see out in the harbor, then she has got to tie up to the dock, and she will have to unload the telephone poles and put them in again and put them straight, and then we will get paid for the loading originally, and get paid for unloading it and get pay for loading it again, and that will hit the bosses hard in the pocketbook? ” The foregoing sufficiently shows the foundation of fact for the portion of the charge complained of. Before giving that instruction, the court warned the jury that the Government must establish beyond reasonable doubt that the I. W. W. was such an organization as is denounced by the Act. The definition of criminal syndicalism was given the jury in the exact words of the statute. The court then gave a number of lexicographers’ definitions of sabotage. They are broader than the meaning of the word as defined in the Act and are not confined to physical damage or injury to physical property. Then, by way of contrast, the statutory definition of sabotage was repeated, and by the repetition it was emphasized. The court said: “ The statute, itself, you will notice, however, denounces sabotage as meaning wilful and malicious physical damage or injury to physical property.” The instruction complained of followed. It referred to the evidence indicating that the organization advocated acts such as loading a ship so that it would list and have to return, and things of that kind. And in that connection the court said that any deliberate attempt to reduce profits “in the manner that I have described” would BURNS v. UNITED STATES. 335 328 Opinion of the Court. constitute sabotage. The language excepted to was followed by an instruction containing this: “ If you find, therefore, that this organization advocated sabotage or any other criminal matters mentioned in the section that I have read, either for the purpose of bringing about a change in industrial control, or a political change, then it would constitute criminal syndicalism.” While one of the purposes of such improper loading of ships may be to create more work for the men and so to inflict loss on employers, it is also plainly calculated to endanger the vessels, their cargoes and the lives of those aboard. By the instruction complained of, the consideration of the jury was limited to “ things of that kind.” The advocating of the malicious commission of such acts is to teach and abet sabotage—physical damage and injury to physical property; it also is to teach and abet crime and unlawful methods of terrorism. It was not necessary for the prosecution to show that the elements of criminal syndicalism were advocated or taught with the precision of statement required in indictments for criminal acts involved. Cf. Wong Tai v. United States, 273 U. S. 77. The purpose and probable effect of the printed matter circulated and of the things said in furtherance of the declared purposes of the organization are to be considered having regard to the capacity and circumstances of the persons sought to be influenced. When there is taken into account the evidence referred to and the parts of the charge preceding and following the part of the charge here assailed—and especially the giving and reiteration of the statutory language defining sabotage—it is quite apparent that the instruction was not erroneous. Both sides have dealt with the case here as if the question were properly raised, and we have considered its merits. McNitt v. Turner, 16 Wall. 352, 362; Baltimore de Potomac Railroad n. Mackey, 157 U. S. 72, 86; Nor- 336 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. folk & Western Ry. v. Earnest, 229 U. S. 114. Cf. West v. Rutledge Timber Co., 244 U. S. 90, 99-100. But, after examining the record, we think plaintiff in error failed to make any objection or effectively to take exception to the charge complained of. The exception there indicated did not call the court’s attention to the instruction now attacked. It was general in form and applied to the series of statements that followed it, covering about two pages of the record. Plaintiff in error does not contend that all of them are erroneous, and obviously they are not. The rule is well-established that, where a series of instructions are excepted to in mass, the exception will be overruled if any one of them is correct. Johnston v. Jones, 1 Black 209, 220; Beaver v. Taylor, 93 U. S. 46, 54; McDermott v. Severe, 202 U. S. 600, 610. Exceptions to a charge must be specifically made in order to give the court opportunity then and there to correct errors and omissions, if any. Pennsylvania R. R. Co. n. Minds, 250 U. S. 368, 375, and cases cited; Allis v. United States, 155 U. S. 117, 122. Even if some of the instructions were erroneous, the exceptions taken were not such as to require a new trial. 2. Plaintiff in error complains of another part of the charge: “ There has been evidence here that advertisements were published in the official organs of the Industrial Workers of the World, what they call also sticker-ettes, calling upon people to boycott the entire State of California and its products. That would only be legal in the event that it was in furtherance of a strike, and by (legal’ I mean as established by the State of California, that is to say, if it was in furtherance of a strike, if it was in good faith, an attempt to better their conditions, and if it did not indulge in maliciousness or misrepresentation. If, however, you should find from the evidence that that was not so, then it would be an illegal BURNS v. UNITED STATES. 337 328 Brandeis, J., dissenting. boycott and you could take it into consideration in determining the facts of this case.” The record does not contain all the evidence and fails to show that it includes all relating to the matter referred to in this instruction. We think it cannot be said as a matter of law that the things there mentioned, when taken in connection with other facts, may not have been proper for consideration in connection with some element of the criminal syndicalism charged. Moreover, no objection was made or exception properly taken to that part of the charge. Here again the exception failed specifically to point out the instruction now assailed as erroneous. Judgment affirmed. Mr. Justice Brandeis, dissenting. This writ of error was allowed under § 238 of the Judicial Code, on constitutional grounds, prior to the amendment of February 13, 1925. All alleged errors at the trial which were properly excepted to are therefore, before us. Chaloner v. Sherman, 242 U. S. 455, 457. There was, at least, one error committed which, in my opinion, justifies reversal and which does not involve a constitutional question. For that reason, according to the practice approved by the Court, I refrain from discussing the constitutional questions presented. See Steamship Co. v. Emigration Comm’rs, 113 U. S. 33, 39; Chicago & G. T. Ry. Co. v. Wellman, 143 U. S. 339, 345; Howat v. Kansas, 258 U. S. 181, 184. The defendant was convicted on the count which charges him with becoming a member of an organization formed to advocate criminal syndicalism. The California statute defines criminal syndicalism as advocating sabotage, among other things; and it defines sabotage “ as 55514°—28-----22 338 OCTOBER TERM, 1926. Brandéis, J., dissenting. 274 U. S. meaning wilful and malicious physical damage or injury to physical property.” To prove the crime, the Government undertook to show that the defendant was a member of the I. W. W. and that the I. W. W. advocated, among other things, the use of sabotage. On that subject the trial judge gave the following instruction, which was duly excepted to: “ Sabotage has been variously defined. Webster’s New International Dictionary defines it as ‘ Scamped work; malicious waste or destruction of an employer’s property by workmen during labor troubles.’ Funk & Wagnails’ New Standard Dictionary defines it as: ‘Any poor work or other damage done by dissatisfied workmen; also, the act of producing it; plant wrecking.’ Nelson’s Encyclopedia defines it thus: 1 The organized hampering of production by slack work, skilful disabling of machinery or the publication of trade secrets.’ The New International Encyclopedia defines it thus: 1 Sabotage may consist in throwing the progress of production out of order, through tampering with machinery, improper use of material, or loitering at work.’ The Encyclopedia Americana defines it as: ‘A method used by labor revolutionists to force employee’s to accede to demands made on them. It consists in wilful obstruction and interference with the normal processes of industry. It aims at inconveniencing and tying up of production, but stops short of actual destruction or of endangering human life directly.’ “ The statute, itself, you will notice, however, denounces sabotage as meaning wilful and malicious physical damage or injury to physical property. 11 Now, there has been presented to you evidence, of the truth or falsity of which, however, you are the exclusive judges, to the effect that this organization, amongst other things, advocated what is known as slowing down on the job, slack or scamped work, such as loading of a> ship in such a way that it took a list to port or starboard BURNS v. UNITED STATES. 339 328 Brandeis, J., dissenting. and therefore had to limp back to port, and things of that kind. I instruct you that under the definition as laid down by the legislature of California, that any deliberate attempt to reduce the profits in the manner that I have described would constitute sabotage.” The testimony referred to by the court in the above instruction was this: “ Under similar circumstances I heard Leo Stark, a member of the I. W. W., say in a speech on May 10th, 1923: 1 When you go back to work, if jve do have to go to work, we will put on the wooden shoe.’ Then he said: 1 In case you are loading telephone poles on a ship down there, sometime the boss is not looking you can slip a couple of poles crossways and then cover up, and then when that ship goes to sea naturally she will start rolling and the cargo will shift, and then she will come in listed like the one you see out in the harbor, then she has got to tie up to the dock, and she will have to unload the telephone poles and put them in again and put them straight, and then we will get paid for the loading originally, and get paid for unloading it and get pay for loading it again, and that will hit the bosses hard in the pocketbook. “ Mr. Lewis. I move that that answer be stricken out as immaterial, irrelevant .and incompetent, not within the definition of sabotage as laid down in the statute, or the Criminal Syndicalism law. “ The Court. I cannot see it. As I said before, I cannot see but what any deliberate act, the purpose of which is to reduce the profits of the physical thing, is not equally an injury. Motion denied. “ Mr. Lewis. I note an exception.” The exception to the charge is insisted on, although the objection to the admission of the evidence is not urged here. The charge was clearly erroneous. It plainly directed the jury that “ slowing down on the job ” and “ scamped work ” constituted sabotage within the mean- 340 OCTOBER TERM, 1926. Brandeis, J., dissenting. 274U.S. ing of the statute. Since the jury must have taken it to be an exposition or interpretation of the words of the statute, the error was not cured by definition, elsewhere in the charge, of sabotage in the terms of the statute. The court ruled throughout the course of the trial, that evidence to show a program of scamped work was admissible. Much of the Government’s evidence consisted of documents showing such a program on the part of the I. W. W. The charge inevitably led the jury to think that all such evidence showed the guilty character of the organization. It ’is said that the charge, if erroneous, was not prejudicial, because the illegal character of the organization was established by other evidence than that which formed the basis of the charge, and because even the latter evidence showed the advocacy of acts which amounted to a malicious destruction of property, and so might properly support a conviction even under a proper construction of the statute. Even in civil cases erroneous rulings, especially those embodied in instructions, are presumptively prejudicial. Filippon n. Albion Slate Co., 250 U. S. 76, 82; United States v. River Rouge Co., 269 U. S. 411, 421. The illegal character of the organization was not conceded. There was evidence from which the illegal character might have been deduced. But the evidence related, in the main, to the acts of individuals. The effort of the defense was to disavow those acts. It is also said that the exception to the charge was not properly taken. The defendant excepted specifically to that portion of the charge which dealt with sabotage. The precise ground of the exception was not set forth. But the continued objections to the admission of evidence upon the ground here urged, and the court’s adverse rulings thereon, could have left no doubt in the mind of the court as to what was meant by the exception here in question. Moreover, the case comes to this PHELPS v. UNITED STATES. 341 328 Statement of the Case. Court from a lower federal court. We have, therefore, the power to correct errors committed below although objection was not taken there. That power has been repeatedly exercised in criminal cases. See Wiborg v. United States, 163 U. S. 632, 658-660; Clyatt v. United States, 197 U. S. 207, 221-222. This case, I think, warrants its exercise. The judgment should be reversed. PHELPS v. UNITED STATES. CERTIORARI TO THE COURT OF CLAIMS. No. 531. Argued March 3, 1927.—Decided May 16, 1927. 1. A claim for just compensation for the use of property taken by the Government is “ founded upon the Constitution,” within the meaning of Jud. Code, § 145. P. 343. 2. A claim for just compensation for property taken for public use by officers or agents of the United States pursuant to an Act of Congress, is a claim founded upon an implied contract. Jud. Code, § 145. P. 343. 3. Where the use of private property is taken by eminent domain and paid for later, the owner is entitled to the value at the time of taking and such additional amount that the whole may be equivalent to the value of such use at the time of the taking paid contemporaneously with the taking. P. 344. 4. Such additional allowance may be measured by a reasonable rate of interest, but is not properly interest, and is not within the prohibition of interest before judgment found in Jud. Code, § 177. P. 344. 61 Ct. Cis. 1044, reversed. Certiorari (273 U. S. 678) to a judgment of the Court of Claims allowing a recovery of less than the amount claimed as the balance due for the value of the use of a wharf, on which petitioners had a lease, and which was taken over for military purposes during the late war. 342 October term, 1926. Opinion of the Court. 274 U.S. Mr. Harold S. Deming, with whom Mr. L. Russell Alden was on the brief, for petitioner. Assistant Attorney General Galloway, with whom Solicitor General Mitchell was on the brief, for the United States, did not oppose the issuance of the writ, and submitted the case with some doubt as to the soundness of the result below. Messrs. Ira Jewell Williams, John H. Stone, F. R. Foraker, Charles L. Guerin, and Ira Jewell Williams, Jr., filed a brief as pmici curiae, by special leave of Court. Mr. Justice Butler delivered the opinion of the Court. Plaintiffs were partners doing business as Phelps Brothers and Company; the petitioner is the survivor. They owned a lease on Pier No. 7 of the Bush Terminal in New York Harbor. December 31, 1917, pursuant to an Act of August 29, 1916, c. 418, 39 Stat. 619, 645, and an Act of August 10, 1917, § 10, c. 53, 40 Stat. 276, 279, the Secretary of War by direction of the President requisitioned that pier and other portions of the Bush Terminal for use in carrying on the war. Plaintiffs vacated, and the United States took possession of the property and continued to occupy it until May 14, 1919. The Secretary’s order stated that steps would be taken to ascertain fair compensation for the temporary use of the property; and a board of appraisers was created for that purpose. The plaintiffs continued to pay rent to the lessor; and, in accordance with the finding of the board, the amount of such payments, $79,890.42, was repaid to plaintiffs by the United States. The board also found the value per month of the use of the plaintiffs’ property less the monthly rents paid. The amount calculated on that basis was not satisfactory to plaintiffs; they elected to take 75 per cent, of the award and there was paid them PHELPS v. UNITED STATES. 343 341 Opinion of the Court. $44,733.79 on account. They sued to recover an amount sufficient to make up just compensation. The court found the value per day of the use of their property; the amount calculated on that basis was $254,175.79 over and above the sums paid; and that amount was included in the judgment entered March 8, 1926. Petitioner was granted a writ of certiorari. 273 U. S. 678. He contends that there should be added such sums as will produce the equivalent of the value of the use of the leased property paid contemporaneously; and that interest at a reasonable rate from the date of the use to the time of payment is a good measure of the amount to be added in order to make just compensation. This action was brought under § 145 of «the Judicial Code. That section gives to the Court of Claims jurisdiction to hear and determine “ all claims (except for pensions) founded upon the Constitution of the United States or . . . upon any contract, express or implied, with the Government of the United States . . .” Section 177 provides that no interest shall be allowed on any claim up to the time of the rendition of judgment unless upon a contract expressly stipulating for its payment. Under the Fifth Amendment plaintiffs were entitled to just compensation; and, within the meaning of § 145, the claim is one founded on the Constitution. Moreover, it has long been established that, where pursuant to an Act of Congress private property is taken for public use by officers or agents of the United States, the Government is under an implied obligation to make just compensation. That implication being consistent with the constitutional duty of the Government as well as with common justice, the owner’s claim is one arising out of implied contract. United States v. Great Falls Manufacturing Co., 112 U. S. 645, 656; Duckett v. United States, 266 U. S. 149, 151; Campbell v. United States, 266 U. S. 368, 370. The distinction between the cause 344 OCTOBER TERM, 1926. Syllab'ug. 274 JLS. of action considered in United States v. 'North American Co., 253 U. S. 330, and a taking under the power of eminent domain was pointed out in Seaboard Avr Line Ry. v. United States, 261 U. S. 299. Plaintiffs’ property was taken before its value was ascertained or paid. Judgment in 1926 for the value of the use of the property in 1918 and 1919, without more, is not sufficient to constitute just compensation. Section 177 does not prohibit the inclusion of the additional amount for which petitioner contends. It is not a claim for interest within the purpose or intention of that section. Acts of Congress are to be construed and applied in harmony with and not to thwart the purpose of the Constitution. The Government’s obligation is to put the owners in as good position pecuniarily as if the use of their property had not been taken. They are entitled to have the full equivalent of the value of such use at the time of the taking paid contemporaneously with the taking. As such payment has not been made, petitioner is entitled to the additional amount claimed. Seaboard Air Line Ry. v. United States, supra, 304; Brooks-Scanlon Corp. v. United States, 265 U. S. 106, 123; Liggett and Myers Tobacco Co. v. United States, ante, p. 215. Judgment reversed. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY et al. v. PUBLIC UTILITIES COMMISSION OF THE STATE OF IDAHO. CERTIORARI TO THE SUPREME COURT OF THE STATE OF IDAHO. No. 242. Argued March 17, 1927.—Decided May 16, 1927. 1. A State cannot require a railroad to accept confiscatory rates on saw logs hauled intrastate to the mill upon the ground that the revenue from the log haul combined with that received from the interstate haul of the manufactured products of the logs, is adequate. P.* 350. CHI., etc. RY. v. PUB. UTIL. COM. 345 344 Opinion of the Court. 2. Where rates found by a regulatory body to be compensatory are attacked as being confiscatory, the courts may inquire into the method by which its conclusion was reached. P. 351. 3. Findings of the Interstate Commerce Commission that rates on* (certain commodities in a district embracing several States are unreasonable, and not expressly relating to intrastate rates, are to be construed as applying to interstate rates exclusively. P. 351. 4. Orders of the Director General of Railroads advancing interstate and intrastate rates and of the Interstate Commerce Commission authorizing a further advance, held not to affect the rights of carriers or the duties of a state public utilities commission in respect of subsequent rate reductions. P. 352. 5. The fact that the Interstate Commerce Commission found an interstate rate too high and authorized reduction is no basis for an order of a state commission reducing the intrastate rate on the same commodity, and an order requiring such reduction, on that basis alone, without a hearing or consideration of evidence offered to prove the inadequacy of the rate so fixed, is arbitrary and a denial of due process. P. 352. 41 Idaho 181, reversed. Certiorari (269 U. S. 550) to a judgment of the Supreme Court of Idaho, which affirmed, on appeal of the above named and three other railroads, an order of the respondent commission reducing rates on transportation of saw-logs intrastate in Idaho. 'Messrs. F. M. Dudley and Thomas Balmer, with whom Messrs. L. B. DaPonte, 0. W. Dynes, F. G. Dorety, D. F. Byons, and Alex M. Winston, were on the brief, for petitioners. Mr. Charles E. Elmquist, with whom Mr. A. H. Connor, Attorney General of Idaho, was on the brief, for respondent. Mr. Justice Butler delivered the opinion of the Court. August 20, 1923, respondent made an order reducing the Idaho intrastate rates for the transportation of saw logs by railroad. Petitioners appealed to the Supreme 346 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. Court of the State, and there the order was affirmed. 41 Idaho 181. • The Director General of Railroads by Order No. 28, effective June 25, 1918, advanced all rates. An addition of 25 per cent, was made to the interstate and intrastate rates on saw logs. In 1920 the Interstate Commerce Commission authorized the carriers further to increase rates. Ex parte 7^, 58 I. C. C. 220, 246. The addition to freight rates in the mountain-Pacific group that includes Idaho was 25 per cent. The respondent authorized additions of 25 per cent, to rates on intrastate freight including saw logs. In 1922 the Interstate Commerce Commission found the freight rates unreasonable, on and after July 1, 1922, to the extent that the rates in effect immediately before the increases authorized in Ex parte 7^ were exceeded by more than specified percentages; and that stated for the mountain-Pacific group was 12^2 per cent. The carriers were authorized to reduce rates in accordance with these findings. Reduced Rates, 1922, 68 I. C. C. 676, 734. As applied to interstate traffic in saw logs, such reduction was ten per cent. Respondent authorized corresponding reductions on Idaho intrastate freight. While the reductions were generally made by the railroads throughout the country and in Idaho, the petitioners did not make any reduction of interstate or intrastate rates on logs. And no reduction of the interstate rate has been ordered by the Interstate Commerce Commission. September 28, 1922, the respondent ordered petitioners, by answer filed within a specified time, to show “ compliance or non-compliance in the matter of reduction of rates on saw logs and other forest products intrastate within the State of Idaho in accordance with the findings of the Interstate Commerce Commission,” and that they show cause why such reduction should not be made. The CHI., etc. RY. v. PUB. UTIL. COM. 347 344 Opinion of the Court. Chicago, Milwaukee and Saint Paul, the Great Northern and the Northern Pacific answered. Each stated that it had put in effect the reduced rates on intrastate freight except saw logs, and that it had not reduced interstate or intrastate rates on saw logs because the existing rates were unreasonably low and confiscatory and should be increased. At the hearing the carriers offered evidence that the existing rates were unreasonably low and confiscatory. The Western Pine Manufacturers Association intervened to support the proposed reduction. It has about 59 members who manufacture annually about one and a half billion feet of lumber in the Inland Empire—eastern Washington and Oregon, Idaho and western Montana. The logs hauled intrastate in Idaho constitute a very small part of those sawed by the members of the association. The Chicago, Milwaukee and Saint Paul analyzed its Idaho intrastate log traffic in the first ten days of each month in 1921. It hauled 3,876 carloads an average distance of 36.2 miles for $68,174.17. It introduced evidence to show that taxes, operating expenses, rentals and interest on investment chargeable to that traffic amounted to $94,658.13, and that taxes and operating expenses alone amounted to $62,622.88. The Great Northern in 1921 hauled 2,620 carloads an average distance of 26.2 miles for $46,130.87, and offered evidence that operating expenses chargeable to that traffic exceeded revenue. The Northern Pacific in the year ending October 1, 1922, hauled 240 carloads. There was no evidence indicating revenue‘received from or operating expenses chargeable to that traffic. But the company called as a witness its special traffic representative, a man of long experience in its operating and traffic departments, who testified that in his opinion the rates were confiscatory. The Spokane and International in 1921 hauled 1,250 carloads for about $22,800. The witnesses 348 OCTOBER TERM, 1926. Opinion of the Court. 274 U.S. called by petitioners made comparisons of rates and testified that those on logs were relatively low. The Western Pine Manufacturers Association, by cross examination of carrier witnesses and by the testimony of its traffic manager, showed that in the Northwest the Northern Pacific originally established the rates on logs, and made them very low in order to move the logs to the mills for the manufacture of lumber to be shipped long distances to eastern markets; that carriers later building into that territory pursued the same policy and that the rates in Idaho were so made; that these rates remained until federal control; that some of the tariffs state that the rates are established to furnish logs to manufacturers who are to forward equivalent products over the carrier’s railroad, and that, if the condition is not complied with, higher rates will be charged. It was not shown to what extent, if any, such higher rates were collected. The traffic manager of the association testified that practically all of the lumber moved long distances in interstate commerce; that freight on logs is a part of the manufacturer’s operating cost while freight on lumber is borne by the consumer. By way of illustration, it was estimated that the logs hauled intrastate in Idaho by the Chicago, Milwaukee and Saint Paul in 1921 would produce lumber sufficient to yield freight revenue of $1,279,-080 .and that those hauled by the Great Northern would make lumber enough to produce $288,123. The respondent found the existing rates on saw logs unreasonable and discriminatory and ordered the carriers to file tariffs “in compliance with the reductions in the findings of the Interstate Commerce Commission . . . applicable to shipments on saw logs intrastate. . . •” Respondent’s opinion gives the following reasons. The existing relation between rates on logs and those on other commodities should be maintained. Hauling logs to the CHI., etc. RY. v. PUB. UTIL. COM. 349 344 Opinion of the Court. mill is incident to the lumber traffic, which includes the transportation of the finished products from the mill. A branch line carrying logs may not of itself yield sufficient revenue to pay operating expenses, but, when it receives credits to which it is entitled as part of the system, it is generally a good revenue producer. As all freight rates had been twice advanced, it was just and reasonable that the reduction authorized should apply to all commodities. The evidence submitted “ does not justify the contention of the carriers that the rates on saw logs are too low when compared to rates on other commodities, as the transportation of saw logs from the forest to the mill furnishes profitable business to the railroad system.” The hearing was not a rate hearing, but was held for the purpose of giving the carriers an opportunity to show why they had not reduced rates on logs “ in accordance with the findings of the Interstate Commerce Commission.” Respondent had theretofore, “ without hearing, adopted the findings of the Interstate Commerce Commission and made orders authorizing and permitting rate increases where the findings of the Interstate Commerce Commission determined that such rate increases were justifiable and reasonable; ” and “now when the Interstate Commerce Commission • . . determines that certain rates are unjustifiable and unreasonable, this commission sees no reason why it should change its method of procedure and proceed to a hearing on rates affecting intrastate shipments ”. And it said: “This commission adopts the findings made by the Interstate Commerce Commission . . . and will order that tariffs be filed in accordance with said findings applicable to intrastate shipments on saw logs.” Following the state practice the case was heard in the Supreme Court on the record made before the respondent. The court held that the respondent was authorized to reduce the rates in question without finding them un- 350 OCTOBER TERM, 1926. Opinion of the Court. 274 U. S. just or unreasonable. And, as to petitioner’s insistence that the rates prescribed by the order are confiscatory, it said (p. 197): “ If it were conceded, . . . that the evidence shows that the existing rates are already insufficient to pay such returns upon the capital ... as the law prescribes to be a reasonable return upon the capital invested, it would not necessarily follow that the rates would be confiscatory for the reason that the evidence also tends to show that the rates paid the carriers for the hauling of logs from the forest to the mill is only one step in the process of reducing the lumber in the forest tree to the finished product and delivering the same to the ultimate consumer. . . . The revenue derived from the shipment of logs ... is only an incident to the traffic, and should not be considered as an independent rate, but the rate must be considered in connection with the entire revenue earned ” by transporting the logs and the lumber. The evidence introduced by the carriers was sufficient to warrant, if not to require, a finding that, as to the lines of all the petitioners, the intrastate log rates in question are very low in comparison with the rates on other commodities, and that, as to the Chicago, Milwaukee and Saint Paul and the Great Northern, they are confiscatory. But, as appears from their opinions, the respondent and the court refused to consider and give weight to that evidence because, as they held, the intrastate log rates were not to be dealt with separately but were to be considered in connection with the interstate lumber rates, and because the carriers made no showing as to the gains or losses resulting from the interstate transportation. That cannot be sustained. The carriers cannot maintain interstate lumber rates higher than otherwise justified by showing that they suffer loss or have inadequate returns from the intrastate transportation of logs. The State has no power to require petitioners to haul the logs at a CHI., etc. RY. v. PUB. UTIL. COM. 351 344 Opinion of the Court. loss or without compensation that is reasonable and just, even if they receive adequate revenues from the intrastate log haul and the interstate lumber haul* taken together. Northern Pacific Ry. n. North Dakota, 236 U. S. 585, 595-596; Norfolk