UNITED STATES REPORTS VOLUME 277 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1927 From April 10, 1928, to and including June 5, 1928 ERNEST KNAEBEL REPORTER UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON 1929 ERRATA Cook v. United States, 275 U. S. 516. Miss Louise Foster was of counsel for the respondent. Mr. Geo. H. Foster did not appear. Under the Act of May 29, 1926, 44 Stat. 677, copies of this volume may be purchased from the Superintendent of Documents, Government Printing Office, Washington, D. C., at cost plus 10 per cent. n JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS 1 WILLIAM HOWARD TAFT, Chief Justice. OLIVER WENDELL HOLMES, Associate Justice. WILLIS VAN DEVANTER, Associate Justice. JAMES CLARK McREYNOLDS, Associate Justice. LOUIS D. BRANDEIS, Associate Justice. GEORGE SUTHERLAND, Associate Justice. PIERCE BUTLER, Associate Justice. EDWARD T. SANFORD, Associate Justice. HARLAN FISKE STONE, Associate Justice. JOHN G. SARGENT, Attorney General. WILLIAM D. MITCHELL, Solicitor General. CHARLES ELMORE CROPLEY, Clerk. FRANK KEY GREEN, Marshal. 1 For allotment of the Chief Justice and Associate Justices among the several circuits, see post, p. IV. in SUPREME COURT OF THE UNITED STATES Order of Allotment of Justices It is ordered, That the following allotment be made of the Chief Justice and Associate Justices of this Court among the circuits, agreeably to the act of Congress in such case made and provided, and that such allotment be entered of record, viz: For the First Circuit, Oliver Wendell Holmes, Associate Justice. For the Second Circuit, Harlan Fiske Stone, Associate Justice. For the Third Circuit, Louis Dembitz Brandeis, Associate Justice. For the Fourth Circuit, William H. Taft, Chief Justice. For the Fifth Circuit, Edward T. Sanford, Associate Justice. For the Sixth Circuit, James C. McReynolds, Associate Justice. For the Seventh Circuit, Pierce Butler, Associate Justice. For the Eighth Circuit, Willis Van Devanter, Associate Justice. For the Ninth Circuit, George Sutherland, Associate Justice. March 16, 1925. For next previous allotment, see 266 U. S., p. IX. IV TABLE OF CASES REPORTED Page. A. C. W. Mfg. Co., Ingrassia v.................. 602 Aetna Life Ins. Co., Sarber v................... 577 Agoncillo v. Philippine Islands................. 189 Albany, City of, Leftwich v...................... 599 Allen, Ricketts v............................... 572 Alman v. New York Life Ins. Co.................. 586 Amalgamated Clothing Workers v. Curlee Clothing Co.............................................. 585 American Food Products Co., St. Paul Fire Ins. Co. v............................................ 597 American Ry. Express Co., Murphey v........... 589 Andres v. Stone................................. 605 Atlantic Oil Producing Co., Oxford Oil Co. v..... 585 Atlas Line S. S. Co. v. United States....... 138, 609 Augusta, King Mfg. Co. v...................... 100 Autin v. Piske.................................. 601 Bahne v. Federal Trade Comm’n................... 598 Baltimore & Ohio R. R. Co. v. United States...... 291 Bank of Ruleville v. Maryland Casualty Co........ 598 “ Bathgate,” Insurance Co. of North America v.... 589 Baum v. First Nat’l Co.......................... 593 Bell, Nashville Builders Supply Co. v........... 606 Beiland v. United States........................ 607 Belle Ayre Conservation Co. v. New York......... 591 Bennett, Coffin Bros. & Co. v.................... 29 Berber, Hill v................................. 603 Bernstein, Speakman v..........*................ 599 Betty v. Day.................................... 598 Bielmeier, N. Y. Central R. R. Co. v............ 590 Blair, Lewis-Hall Iron Works v.................. 592 v VI TABLE OF CASES REPORTED. Page. Blair, Roth v................................... 588 Blodgett v. Silberman............................. 1 Blodgett, Silberman v............................. 1 Bowers, Bowring v............................... 608 Bowers, Ellay Co. v............................. 606 Bowers, Kemsley, Millboum & Co. v............... 594 Bowring v. Bowers............................... 608 Brooke v. City of Norfolk........................ 27 Brown v. Rudolph................................ 605 Brown& Co., Dillard v........................... 587 Brown-Crummer Investment Co., City of Gainesville v......................................... 54 Building Trade Council, Decorative Stone Co. v..594 Buzynski v. Luckenbach S. S. Co................. 226 Cadwell v. Teaney............................... 605 Caldine, Unadilla Valley Ry. Co. v.............. 578 California, Wysong v............................ 576 Cambridge, City of, Nectow v.................... 183 Campbell, New York City v....................... 573 Canavan v. Kitchen.............................. 585 Cape May, City of, v. United States............. 588 Caranica v. Nagle............................ 589 Carter Oil Co. v. Eli........................... 573 Carver, United States v......................... 578 Chase Securities Corp’n v. United States........ 600 Chavez v. United States......................... 591 Chelsea, City of, v. Dolan...................... 606 Chevrolet Motor Co. v. United States............ 585 Chicago Auditorium Ass’n, Willing v............. 274 Chicago, etc. R. R. Co. v. Church............... 591 Chicago, etc. R. R. Co. v. Emmerson............. 601 Chin Toy v. United States..................... 601 Chin Wah Kee v. United States................... 600 Chippiannock Cemetery Ass’n v. Rock Island...... 578 Church, Chicago, etc. R. R. Co. v............... 591 Clapp, Montana ex rel. Ingersoll v.............. 591 Cliffs Chemical Co. v. Wisconsin Tax Comm’n..... 574 TABLE OF CASES REPORTED. vn Page. Coffin Bros. & Co. v. Bennett.................... 29 Cogen v. United States.......................... 579 Coleman, Louisville Gas & Electric Co. v......... 32 Collins, Ex parte............................... 565 Compagnie General Transatlantique v. United States........................................... 585 Compañia de Navegación v. Fireman’s Fund Ins. Co. 66 Consolidated Iron-Steel Mfg. Co. v. Dunbar Bros. Co............................................... 599 Cortez Oil Co. v. United States................. 600 County Comm’rs, Reed v.......................... 376 Cudahy Packing Co. v. Munson S. S. Line......... 586 Curlee Clothing Co., Amalgamated Clothing Workers v........................................... 585 Dakota Life Ins. Co., Midland Nat’l Bank v......346 Davis v. Ohio................................... 571 Day, Betty v.................................... 598 Day, United States ex rel. Rios v............... 604 Decorative Stone Co. v. Building Trade Council.... 594 Department of Labor of Washington, Sultan Ry., etc. Co. v...................................... 135 Deutsch-Australische Dampfschiffs-Gesellschaft v. United States.................................... 610 Dillard v. Hal Brown & Co....................... 587 Dolan, City of Chelsea v......................... 606 Driscoll and Driscoll v. State Board of Land Comm’rs........................................... 586 Driskill v. United States........................ 600 Dugan v. Ohio.................................... 61 Dunbar Bros. Co., Consolidated Iron-Steel Mfg. Co. v............................................ 599 Dunn, State Trust & Savings Bank v............... 581 Dussoulas v. Lang............................... 593 Eagles v. United States.......................... 609 Echols v. United States.......................... 609 El Hogar Filipino, Philippine Islands ex rel. Attorney General v................................... 595 VIII TABLE OF CASES REPORTED. Page. Eli, Carter Oil Co. v......................... 573 Ellay Co. v. Bowers........................... 606 Elmer Candy Co., Fauntleroy v................. 581 Emmerson, Chicago, etc. R. R. Co. v........... 601 Emmerson, Montgomery Ward & Co. v............ 573 Emmerson, Victor Chemical Works v............. 573 Empire Gas & Fuel Co. v. Saunders............. 580 Erie R. R. Co. v. Hoyland Flour Mills Co...... 586 Ex parte Collins.............................. 565 Ex parte Steidle.............................. 577 Ex parte Williams............................. 267 Fagin v. Quinn................................ 606 Fajardo Sugar Co. v. Gallardo................. 611 Falter v. United States....................... 590 Farris v. United States....................... 607 Fauntleroy v. Elmer Candy Co.................. 581 Federal Intermediate Credit Bank v. Mitchell... 213 Federal Trade Comm’n, Balme v................. 598 Ferry v. Ramsey................................ 88 Figueroa v. Saldana........................... 574 Fireman’s Fund Ins. Co., Compañia de Navegación v.......................................... 66 First Nat’l Co., Baum v....................... 593 Forchheimer, Franc-Strohmenger & Cowan v.......597 Fox v. Mills.................................. 589 France v. French Overseas Corp’n.............. 323 Franc-Strohmenger & Cowan v. Forchheimer....... 597 French Overseas Corp’n, France v.............. 323 Gaines v. Washington........................... 81 Gainesville, City of, v. Brown-Crummer Investment Co.............................................. 54 Gallardo, Fajardo Sugar Co. v................. 611 Galveston, etc. Ry. Co. v. Wilson............. 594 Gardner, Reinecke v........................... 239 Gee Wah Lee v. United States.................. 608 General Finance Corp’n v. Penn-Nat’l Hardware Mutual......................................... 603 TABLE OF CASES REPORTED. ix Page. General Investment Co. v. N. Y. Central R. R. Co.. 588 Georgouses v. Gillen.......................... 600 Gillen, Georgouses v.......................... 600 Goldman, United States v...................... 229 Goldsmith v. Standard Chemical Co............. 599 Goodyear, Mellon v............................ 335 Gordon v. United States....•.................. 589 Graham, Jewell v.....■........................ 596 Grand Trunk R. R. Co., Wright v............... 580 Granfell, New York, etc. R. R. Co. v.......... 580 Gravel Products Corp’n, Logan v............... 599 Great Northern Ry. Co. v. United States....... 172 Great Southern Lumber Co., Williams v.......... 19 Green v. United States........................ 438 Grigg v. United States........................ 582 Haglund, Southern Pacific Co. v............... 304 Hamburg-American Line v. United States.... 138,610 Harris v. Ramsey............................... 88 Hawthorne v. Texas, etc. R. R. Co............. 571 Heiner, Ralston v............................. 608 Heiner, Rieck v............ i. 608 Hemphill v. Orloff............................ 537 Hendershot, New York, etc. R. R. Co. v........ 602 Hermanos v. Royal Exchange Assurance Co....... 590 Hill v. Berber................................ 603 Hiller, Johnston v............................ 603 Hogue-Kellog Co., Webster Canning Co. v....... 592 Holland Furniture Co. v. Perkins Glue Co...... 245 Hood v. United States......................... 588 Hooker v. United States....................... 589 Houghton v. United States..................... 592 Hoyland Flour Mills Co., Erie R. R. Co. v..... 586 Hubshman, Prela v............................ 579 Humane Stanchion Works v. Mitchell Mfg. Co.... 597 Illinois Northern Ry. v. Mikulecky............ 605 Illinois, Saltis v............................ 575 Imler, Midland Valley R. R. Co. v............. 591 x TABLE OF CASES REPORTED. Page. Ingersoll, Montana ex rel., v. Clapp.............. 591 Ingrassia v. A. C. W. Mfg. Co..................... 602 Insurance Co. of North America v. “ Bathgate ”.... 589 Jebsen Co. v. United States................... 610,611 Jenkins v. Nat’l Surety Co........................ 258 Jewell v. Graham.................................. 596 Johnson, Nielsen v................................ 583 Johnson, Seaboard Air Line Ry. Co. v.............. 579 Johnson, Wong Wey ex rel. Wong Cheu Dong v.... 592 Johnston v. Miller............................. 603 Jordan v. Tashiro.............................. 580 Kastel v. United States........................ 604 Kemsley, Millboum & Co. v. Bowers.............. 594 Kieffer, Kinney-Coastal Oil Co. v................ 488 King Mfg. Co. v. Augusta.......................... 100 Kinney-Coastal Oil Co. v. Kieffer..................488 Kitchen, Canavan v................................ 585 Klengenbert v. H. Liebes & Co..................... 596 Knox, Mississippi ex rel., Panhandle Oil Co. v.218 Kohlman v. United States........................ 584 Lang, Dussoulas v............................... 593 Larson Co. v. Wrigley Co........................... 97 Lash’s Products Co. v. United States.............. 581 Leather v± United States........................ 604 Leftwich v. City of Albany........................ 599 Lewis-Hall Iron Works v. Blair.................... 592 Liebes & Co., Klengenberg v....................... 596 Logan v. Gravel Products Corp’n................... 599 Long v. Rockwood.................................. 142 Louisville Gas & Electric Co. v. Coleman........... 32 Loveland v. United States......................... 583 Luckenbach S. S. Co., Buzynski v.................. 226 Luckenbach S. S. Co. v. United States............. 584 Madison County Trust & Deposit Co., Watkins v... 602 Magen v. United States............................ 595 Malcolm Baxter, Jr., The.......................... 323 Marsh v. United States........................... 611 TABLE OF CASES REPORTED. xi Page. Marshall, New York Life Ins. Co. v............. 587 Maryland Casualty Co., Bank of Ruleville v..... 598 Maryland Casualty Co. v. Razook................ 601 Massachusetts, Nat’l Leather Co. v............. 413 McBride, Ribnik v.............................. 350 McCoy v. Shaw.................................. 302 McDonald v. United States...................... 581 McGowan & Sons v. Van Winkle................... 574 McInnis v. United States....................... 438 Means v. Terrell............................... 596 Mellon v. Goodyear............................. 335 Metropolitan Life Ins. Co., Stipcich v......... 311 Michigan Central R. R. Co. v. Mix.............. 581 Midland Nat’l Bank v. Dakota Life Ins. Co...... 346 Midland Valley R. R. Co. v. Imler.............. 591 Mikulecky, Illinois Northern Ry. v............. 605 Miller County Highway District, Standard Pipe Line Co. v........................................... 160 Mills, Fox v................................. 589 Mississippi ex rel. Knox, Panhandle Oil Co. v..218 Missouri K-T R. R. Co. v. O’Connor............. 607 Mitchell, Federal Intermediate Credit Bank v... 213 Mitchell v. United States...................... 594 Mitchell Mfg. Co., Humane Stanchion Works v.... 597 Mix, Michigan Central R. R. Co. v.............. 581 Montana ex rel. Ingersoll v. Clapp............. 591 Montgomery Ward & Co. v. Emmerson............ 573 Montrose Oil Refining Co., St. Louis-San Francisco Ry. Co. v...................................... 598 Moore Shipbuilding Co., Southern Pacific Co. v.... 304 Moore, Union Ferry Co. v....................... 595 Morgan v. Riverside Mills Co................... 586 Munson S. S. Line, Cudahy Packing Co. v........ 586 Murphey v. American Ry. Express Co............. 589 N. & M. Realty Corp’n, O’Leary v................ 593 Nagle, Caranica v.............................. 589 Nashville Builders Supply Co. v. Bell.......... 606 XII TABLE OF CASES REPORTED. Tage, National Insurance Co. v. United States........ Ö08 National Leather Co. v. Massachusetts.......... 413 National Surety Co., Jenkins v................. 258 Nattin, St. Louis & Southwestern Ry. Co. v...... 157 Nectow v. City of Cambridge.................... 183 New Orleans, etc. R. R. Co. v. Snelgrove....... 596 New York, Belle Ayre Conservation Co. v........ 591 New York Central R. R. Co. v. Bielmeier........ 590 New York Central R. R. Co., General Investment Co. v........................................... 588 New York City v. Campbell...................... 573 New York, etc. R. R. Co. v. Granfell........... 580 New York, etc. R. R. Co. v. Hendershot......... 602 New York, etc. R. R. Co. v. Slater............. 605 New York Life Ins. Co., Aiman v................ 586 New York Life Ins. Co. v. Marshall............. 587 Nichols and Nichols, United States v........... 584 Nielsen v. Johnson.............................. 583 Nieman v. Plough Chemical Co.................. 603 Norfolk, City of, Brooke v....................... 27 Norris v. Sutherland............................ 602 Northern Trust Co., Reinecke v.................. 579 North German Lloyd v. United States......... 609,610 North River Ins. Co. v. Wright................. 604 Ocean S. S. Co. v. United States............... 584 O’Connor, Missouri K-T R. R. Co. v............. 607 Oglesby, St. Louis-San Francisco Ry. Co. v...... 587 Ohio, Davis v.................................. 571 Ohio, Dugan v................................... 61 O’Leary v. N. & M. Realty Corp’n............... 593 Olmstead v. United States...................... 438 Olsen v. S. S. “ Thomas Tracy ”................ 595 Oregon ex rei. Sullivan, Tazewell v................ 575 Oriel v. Russell............................... 579 Orloff, Hemphill v............................. 537 Oxford Oil Co. v. Atlantic Oil Producing Co..... 585 Panhandle Oil Co. v. Mississippi ex rei. Knox....... 218 TABLE OF CASES REPORTED. xin Page. Penn-Nat’l Hardware Mutual, General Finance Corp’n v..................................... 603 Pennsylvania, Quaker City Cab Co. v............ 389 Perkins Glue Co., Holland Furniture Co. v....... 245 Philippine Islands, Agoncillo v................ 189 Philippine Islands ex rel. Attorney General v. El Hogar Filipino................................. 595 Philippine Islands, Springer v................. 189 Piske, Autin v................................. 601 Plamals v. S. S. “ Pinar Del Rio ”............ 151 Plough Chemical Co., Nieman v.................. 603 Portsmouth Harbor Land & Hotel Co. v. United States........................................ 603 Prela v. Hubshman.............................. 579 Price v. United States......................... 587 Public Nat’l Bank & Trust Co., Schreiber v...... 593 Quaker City Cab Co. v. Pennsylvania............ 389 Quinn, Fagin v............................... 606 Raarup v. United States........................ 576 Ralston v. Heiner.............................. 608 Ralston Purina Co., Western Grain Co. v........ 593 Ramsey, Ferry v............................... 88 Ramsey, Harris v................................ 88 Razook, Maryland Casualty Co. v.............. 601 Reed v. County Comm’rs......................... 376 Reinecke v. Gardner............................ 239 Reinecke v. Northern Trust Co.................. 579 Ribnik v. McBride.............................. 350 Ricketts v. Allen.............................. 572 Rieck v. Heiner................................ 608 Rios, United States ex rel., v. Day........... 604 Riverside Mills Co., Morgan v.................. 586 Rock Island, Chippiannock Cemetery Ass’h v...... 578 Rockwood, Long v............................... 142 Rodman Chemical Co. v. United States........... 592 Rogers, nee Willis, v. Willis.................. 599 Roos v. The Texas Co........................... 587 XIV ^TABLE OF CASES REPORTED. Page. Rose v. Washington Times Co..................... 597 Roth v. Blair................................... 588 Royal Exchange Assurance Co., Hermanos v........ 590 Rudolph, Brown v................................ 605 Russell, Oriel v................................ 579 St. Louis-San Francisco Ry. Co. v. Montrose Oil Refining Co..................................... 598 St., Louis-San Francisco Ry. Co. v. Oglesby..... 587 St. Louis & Southwestern Ry. Co. v. Nattin...... 157 St. Paul Fire Ins. Co. v. American Food Products Co. 597 Saldana, Figueroa v............................. 574 Saltis v. Illinois.............................. 575 Sarber v. Aetna Life Ins. Co.................... 577 Saunders, Empire Gas & Fuel Co. v............... 580 Schreiber v. Public Nat’l Bank & Trust Co....... 593 Seaboard Air Line Ry. Co. v. Johnson............ 579 Seiwell Blouse Co. v. Hubshman.................. 579 Shaw, McCoy v................................... 302 Silberman v. Blodgett............................. 1 Silberman, Blodgett v........................... 1 Sioux Indians v. United States.............. 424, 607 Sisseton Band of Sioux Indians v. United States.... 424 Slater, New York, etc. R. R. Co. v.............. 605 Sligh v. United States.......................... 582 Smiler v. United States......................... 607 Snelgrove, New Orleans, etc. R. R. Co. v........ 596 South Bend, City of, Sprout v................... 163 Southern Pacific Co. v. Haglund................. 304 Southern Pacific Co. v. Moore Shipbuilding Co... 304 Southwark Mfg. Co., Tucker Stevedoring Co. v.... 598 Speakman v. Bernstein........................... 599 Spirou v. United States......................... 596 Springer v. Philippine Islands.................. 189 Sprout v. City of South Bend.................... 163 S. S. “ Pinar Del Rio,” Plamals v.............. 151 S. S. “Thomas Tracy,” Olsen v................... 595 Standard Chemical Co., Goldsmith v.............. 599 TABLE OF CASES REPORTED. xv Page. Standard Pipe Line Ce. v. Miller County Highway District......................................... 160 State Board of Land Comm’rs, Driscoll and Driscoll v................................................ 586 State Highway Comm’n v. Utah Construction Co... 580 State Trust & Savings Bank v. Dunn............... 581 Steidle, Ex parte................................ 577 Stipcich v. Metropolitan Life Ins. Co............ 311 Stone, Andres v.................................. 605 Sullivan, Oregon ex rel., Tazewell v............. 575 Sultan Ry., etc. Co. v. Dept, of Labor of Washington. 135 Sutherland, Norris v............................. 602 Swan v. United States............................ 597 Talcott v. United States......................... 604 Tashiro, Jordan v................................ 580 Tazewell v. Oregon ex rel. Sullivan.............. 575 Teaney, Cadwell v................................ 605 Texas Co., Roos v.............................. 587 Texas, etc. R. R. Co., Hawthorne v............... 571 Todd v. Washington............................... 611 Tom Luey v. United States........................ 601 Tucker Stevedoring Co. v. Southwark Mfg. Co.......598 Unadilla Valley Ry. Co. v. Caldine............... 578 Union Ferry Co. v. Moore......................... 595 United States, Atlas Line S. S. Co. v........ 138, 609 United States, Baltimore & Ohio R. R. Co. v....... 291 United States, Beiland v......................... 607 United States v. Carver......................... 578 United States, Chase Securities Corp’n v......... 600 United States, Chavez v.......................... 591 United States, Chevrolet Motor Co. v............. 585 United States, Chin Toy v........................ 601 United States, Chin Wah Kee v.................... 600 United States, City of Cape May v................ 588 United States, Cogen v...............,........... 579 United States, Compagnie General Transatlantique v.......................................... 585 XVI TABLE OF CASES REPORTED. Page. United States, Cortez Oil Co. v................. 600 United States, Deutsch-Australische Dampfschiffs- Gesellschaft v................................... 610 United States, Driskill v....................... 600 United States, Eagles v.......................... 609 United States, Echols v......................... 609 United States ex rel. Rios v. Day............... 604 United States, Falter v.......................... 590 United States, Farris v....................... 607 United States, Gee Wah Lee v.................... 608 United States v. Goldman........................ 229 United States, Gordon v......................... 589 United States, Great Northern Ry. Co. v......... 172 United States, Green v........................... 438 United States, Grigg v.......................... 582 United States, Hamburg-American Line v....... 138, 610 United States, Hood v........................... 588 United States, Hooker v......................... 589 United States, Houghton v....................... 592 United States, Jebsen Co. v.........•....... 610,611 United States, Kastel v....................... 604 United States, Kohlman v....................... 584 United States, Lash’s Products Co. v............ 581 United States, Leather v...................... 604 United States, Loveland v..................... 583 United States, Luckenbach S. S. Co. v........... 584 United States, Magen v.......................... 595 United States, Marsh v.......................... 611 United States, McDonald v....................... 581 United States, McInnis v........................ 438 United States, Mitchell v....................... 594 United States, Nat’l Insurance Co. v............ 508 United States v. Nichols and Nichols............ 584 United States, North German Lloyd v....... 609,610 United States, Ocean S. S. Co. v........... 584 United States, Olmstead v..................... 438 TABLE OF CASES REPORTED. xvn Page. United States, Portsmouth Harbor Land & Hotel Co. v.......................................... 603 United States, Price v.......................... 587 United States, Raarup v.......i................. 576 United States, Rodman Chemical Co. v............ 592 United States, Sioux Indians v.............. 424, 607 United States, Sisseton and Wahpeton Bands of Sioux Indians v............................... 424 United States, Sligh v.......................... 582 United States, Smiler v......................... 607 United States, Spirou. v........................ 596 United States, Swan v........................... 597 United States, Talcott v........................ 604 United States, Tom Luey v....................... 601 United States v. Wilhams........................ 580 United States, Williamsport Wire Rope Co. v...... 551 United States, Wyatt v......................*.... 588 United States, Yanktown Sioux Indians v......... 607 United States, Young v.......................... 606 Utah Construction Co., State Highway Comm’n v.. 580 Van Winkle, McGowan & Sons v.................... 574 Victor Chemical Works v. Emmerson............... 573 Wahpeton Band of Sioux Indians v. United States.. 424 Washington, Gaines v............................. 81 Washington Times Co., Rose v.................... 597 Washington, Todd v...........•.................. 611 Washington, White River Gardens v............... 572 Watkins v. Madison County Trust & Deposit Co.... 602 Webster Canning Co. v. Hogue-Kellog Co........... 592 Western Grain Co. v. Ralston Purina Co.......... 593 White River Gardens v. Washington............... 572 Williams, Ex parte.............................. 267 Williams v. Great Southern Lumber Co............. 19 Williamsport Wire Rope Co. v. United States...... 551 Williams, United States v....................... 580 Willing v. Chicago Auditorium Ass’n............. 274 5963°—29-----H XVIII TABLE OF CASES REPORTED. Page. Willis v. Willis..............................■ 599 Willis, Willis v............................... 599 Wilson, Galveston, etc. Ry. Co. v.............. 594 Wisconsin Tax Comm’n, Cliffs Chemical Co. v..... 574 Wong Cheu Dong, Wong Wey ex rel., v. Johnson.... 592 Wong Wey ex rel. Wong Cheu Dong v. Johnson.... 592 Wright v. Grand Trunk R. R. Co................. 580 Wright, North River Ins. Co. v................. 604 Wrigley Co., Larson Co. v....................... 97 Wyatt v. United States......................... 588 Wysong v. California........................... 576 Yanktown Sioux Indians v. United States......... 607 Young v. United States..........................606 TABLE OF CASES Cited in Opinions Page. Page. Abueva v. Wood, 45 Phil. American Sugar Co. v. Louisi- Rep. 612 201 ana, 179 U. S. 89 53 Adams v. New York, 192 American Surety Co. v. Pauly, U. S. 585 467 170 U. S. 133 322 Adams v. Tanner, 244 U. S. Amos v. United States, 255 590 361 U. S. 313 461 Adams Express Co. v. New Amoskeag Savings Bank v. York, 232 U. S. 14 170 Purdy, 231 U. S. 373 403 Adkins v. Children’s Hospital, Appleby v. Delaney, 271 U. S. 261 U. S. 525 356 403 113 Agnello v. United States, 269 Ariadne, The, 13 Wall. 475 310 U. S. 20 462 Arkadelphia Milling Co. v. St. Air-way Corp’n v. Day, 266 Louis Southwestern Ry. U. S. 71 37 Co.,249 u-s-134 H3,167 Alaska Packers Ass’n v. In- Airoour & Co. v. North ^a' dustrial Accident Comm’n, . k°ta, 240 U. S. 510 403 276 U. S. 467 137 A™ld v- Hanna> 276 U- s- Albert Dumois, The, 177 U. S. A?91 x „ „ 171 24Q 156 Atchison, etc. Ry. v. Calhoun, Allanwilde Corp’n v. Vacuum a^Is 8’3 r> m Oil Co., 248 U. S. 377 333 Atc^°n. et«- Ry■ Mat" Allen t>. Riley, 203 U. 8. 347 148 AT/7”', 8 ? t> r 408 Allis-Chalmers Co. v. Fidel- Atlantic ST* Llna ?i CS' ity & Deposit Co, 114 L.T. v Goldsboro, 232 U. S 493 F ’ o17 548 110 A1 -r, Atlantic & Pacific Telegraph or, V- Ramsey’ r, Co. v. Philadelphia, 190 A U- b\251 54 v g 160 170 C% v Atlas Transp. Co. v. Lee Line Mesta Machine Co.; 18 F. Steamers, 235 Fed. 492; A m , r. 258 238 ^d. 349 310 American Bank & Trust Co. Austin v. The Aidermen, 7 v. Federal Reserve Bank, Wall. 694 54 256 U. S. 350 150,214 Baker v. Druesedow, 263 American Mfg. Co. v. St. u. S. 137 272 Louis, 8 F. (2d) 447 423 Bailey v. Alabama, 219 U. S. American Natl Co. v. United 219 96 States, 274 U. S. 99 245 Baltimore & Ohio R. R. Co. American Railroad Co. v. v. Settle, 260 U. S. 166 168 Didricksen, 227 U. S. 145 346 Baltimore & Ohio R. R. Co. American Refrigerator Transit v. United States, 277 U. S. Co. v. Hall, 174 U. S. 70 17 291 389 XIX xx TABLE OF CASES CITED. Page. Page. Baltimore Shipbuilding Co. v. Block v. Hirsh, 256 U. S. 135 360 Baltimore, 195 U. S'. 375 Bloomer v. McQuewan, 14 450,537 How. 539 147 Baltimore S. S. Co. v. Phil- Bluefield Waterworks Co. v. lips, 274 U. S. 316 228 Public Service Comm’n, 262 Bank of Augusta v. Earle, 13 U. S. 679 112,272 Pet. 519 548 Blumenstock Bros. v. Curtis Bank of Commerce v. Tenues- Pub. Co., 252 U. S. 436 551 see, 161 U. S. 134 533 Board of Comm’rs v. Com- Bank of the United States v. pania General, 249 U. S. Halstead, 10 Wheat. 51 210 425 ' 575 Bankers Trust Co. v. Texas Board of Comm’rs v. Manila & Pacific Ry., 241 U. S. Electric R. R. Co., 249 295 214 U. S. 262 123 Barber Asphalt Co. v. Stand- Board of Trade v. Christie ard Asphalt Co., 275 U. S. Grain & Stock Co., 198 372 131 U. S. 236 150 Barclay & Co. v. Edwards, Boise Artesian Water Co. v. 267 U. S. 442 527 Boise City, 230 U. S. 84 127 Barney v. Latham, 103 U. S. Bosley v. McLaughlin, 236 205 60 U. S. 385 375 Barrett v. Van Pelt, 268 U. S. Bowman v. Continental Oil 85 389 Co., 256 U. S. 642 171 Bartlett v. Kane, 16 How. Boyd v. United States, 116 263 561 U. S. 616 458 Bass v. Metropolitan, etc. Ry. Brass v. Stoeser, 153 U. S. Co., 82 Fed. 857 286 391 360 Bauer & Cie v. O’Donnell, 229 Brazee v. Michigan, 241 U. S. U. S. 1 147 340 357 Behn, Meyer & Co. v. Miller, Brimstone R. R. & Canal Co. 266 U. S. 457 141 v. United States, 276 U. S. Bell’s Gap R. R. Co. v. Penn- 104 300 sylvania, 134 U. S. 232 38 Brooks v. Clark, 119 U. S. Béné v. Jeantet, 129 U. S. 502 60 683 254 Brooks v. United States, 267 Bemheimer v. Converse, 206 U. S. 432 472 U. S. 516 31 Brown v. Houston, 114 U. S. Berry v. Davis, 242 U. S. 468 575 622 16 Bessette v. Conkey Co., 194 Brown v. Walker, 161 U. S. U. S. 324 236 591 211 Bilby v. Stewart, 246 U. S. Brown-Forman Co. v. Ken-255 573 tucky, 217 U. S. 563 405 Birmingham Waterworks v. Brownlow v. Schwartz, 261 Birmingham, 211 Fed. 497, U. S. 216 575 affd., 213 Fed. 450 119 Brushaber v. Union Pacific Black v. Geissler, 58 Okla. R. R. Co., 240 U. S. 1 527 335 303 Buck v. Bell, 274 U. S- 200 472 Blackstone v. Miller, 188 Buck v. Kuykendall, 267 U. S. U. S. 189 . 13 307 171 Blair v. Oesterlein Machine Budd v. New York, 143 U. S. Co., 275 U. S. 220 556 517 374 Blair v. United States, 250 Buder, Et parte, 271 U. S. U. S. 273 291 461 271 TABLE OF CASES CITED. xxi Page. Page. Bullen v. Wisconsin, 240 U. S. Chicago, etc. R. R. Co. v. 625 9 Osborne, 265 U. S. 14 270 Bunting v. Oregon, 243 U. S. Chicago, etc. R. R. Co. v. 426 375 Tompkins, 176 U. S. 167 131 Burdeau v. McDowell, 256 Chicago Junction Case, 264 U. S. 465 481 U. S. 258 . 182 Burges v. Wickham (1863) 3 Chicago Theological Seminary B. & S. 669 76 v. Illinois, 188 U. S. 662 533 Burk-Waggoner Oil Ass’n v. Choctaw, etc. R. R. Co. v. Hopkins, 269 U. S. 110 550 Harrison, 235 U. S. 292 148,221 Bûmes v. Bûmes, 137 Fed. Citizens Telephone Co. v. 781 507 Fidler, 229 U. S. 322 43,403 Burton v. United States, 196 Clallam County v. United U. S. 283 291 States, 263 U. S. 341 148,221 Bush & Sons Co. v. Maloy, Clapham v. Langton, 34 L. J., 267 U. S. 317 171 Q. B. 46 76 Buttfield v. Stranahan, 192 Clark v. Kansas City, 176 U. S. 470 210 u. S. 114 54 Byars v. United States, 273 Clark v. Manufacturers Ins. U. S. 28 487 co, 8 How. 235 316 Caledonia, The, 157 U. S. Qark v Poor> 274 U. S. 554 169 124 331 Clark v. Stanly, 66 N. C. 59 204 Calhoun v. Seattle, 215 Fed. Clark v Titusville, 184 U. S. 226 119 * 329 46,408 California v. Pacific R. R. Clarke v. Deckebach, 274 Co., 127 U. S'. 1 147 -q S 392 47 California Powder Works v. Clayton v. Utah Territory, Davis, 151 U. & 389 572 132 U. S. 632 208 Camp Boyd 229 U. S. 530 507 ainton „ E lebrecht 13 " H Wall. 434 208 262 fed. 114 Cochrane v. Badische Anilin Canning to Farquhar, 16 & Soda Fabrik, 111 U. S. y. .b. u. 01/ 203 258 Ä« Pennsylvania, Deener, 94 U. S. 17 How. 456 9 _ ’ Carstairs v. Cochran, 193 a _ TT q in 29 Coe v. Errol, 116 U. S. 517 16 Carroll v. United States, 267 Cohen v' ■q g |32 465 Cohens v. Virginia, 6 Wheat. Carter v. Boehm, 3 Burrows 264 487 2905 316 Cole v. Ralph, 252 U. S. 286 229 Castner, etc. Inc. v. Lederer, Collector v. Day, 11 Wall. 275 Fed. 221 560 U3 526 Chamberlain v. St. Paul, 92 Colorado v. United States, U.S. 299 267 271 U. S. 153 182 Chelentis v. Luckenbach S. S. Commercial Cable Co. v. Co., 247 U. S. 372 155 Burleson, 250 U. S. 360 575 Cherokee Nation v. Hitch- Commonwealth v. Dana, 2 cock, 187 U. S. 294 437 Mete. 329 463 Chesapeake & Ohio Ry. Co. Commonwealth v. Williams’ v. Gainey, 241 U. S. 494 346 Executor, 102 Va. 778 9 Chesapeake & Ohio Ry. Co. Condict v. Grand Trunk Ry., v. Kelly, 241 U. S. 485 346 54 N. Y. 500 334 XXII TABLE OF CASES CITED. Page. Page. Continental Life Ins. Co. v. Davis & Farnum Mfg. Co. v. Chamberlain, 132 U. S. Los Angeles, 189 U. S. 207 127 304 320 Dayton Coal Co. v. Barton, Continental Paper Bag Co. 183 U. S. 23 374 v. Eastern Paper Bag Co., Day ton-Goose Creek Ry. Co. 210 U. S. 405 149 v. United States, 263 U. S. Coppell v. Hall, 7 Wall. 542 349 456 182 Corbin v. Townshend, 92 Delaware & Hudson Co. v. Conn. 501 8 United States, 266 U. S. Corsair, The, 145 U. S. 335 156 438 182 Counselman v. Hitchcock, 142 Des Moines v. Des Moines U. S. 547 477 Gas Co, 264 Fed. 506 119 Cox v. Hart, 260 U. S. 427 208 Des Moines Nat’l Bank v. Cream of Wheat Co. v. Grand Fairweather, 263 U. S. 103 530 Forks, 253 U. S. 325 573 Devine v. Los Angeles, 202 Crescent Oil Co. v. Missis- U. S. 313 290 sippi, 257 U. S. 129 53 Dickey, Ex parte, 144 Cal. Cronin v. Adams, 192 U. S. 234 359 108 167 Dillon v. Stratheam S. S. Co, Cross v. De Valle, 1 Wall. 1 290 248 Ü. S. 182 245 Crutcher v. Kentucky, 141 Dobbins v. Commissioners, 16 U. S. 47 171 Pet. 435 221 Cudahy Packing Co. v. Min- States, 272 nesota, 246 U. S. 450 401 U ». 530 483 Cumberland Telephone Co. Dooley v. United States, 182 ‘V. Memphis, 198 Fed. 955 119 U- °- ¿22 561 Cuyahoga Power Co. v. North- Do^chy v. Kansas, 264 U. S. em Realty Co, 244 U. S. _ i xt -v i i oaa 579 Doyle, New York ex ret., v. mu;™ rv Atwell, 261 U. 8. 590 573 jDahnkG“ aiKCT JvLillmg Cx). T\n 010 tt q v. Bondurant, 257 U. S. ”5- Matter of> 212 U- S' 909 100 3/4 XL I TA . . ~ ~ , Edwards v. Chemical Co, 170 Daimler Co. v. Continental n r Tyre & Rubber Co, (1916) Edwards v. Chile Copper Co, 2 A. C. 307 141 270 U. S. 452 424 Dakota Central Telephone Electric Signal Co. v. Hall Dakota’ 250 Signal Co, 114 U. S. 87 257 U. S. 163 472 Emert v. Missouri, 156 U. S. Dallas v. Dallas Telephone 296 150 _ Co, 272 Fed. 410 119 Engel v. Davenport, 271 U. S. Darnell v. Indiana, 226 U. S. 33 228 390 54 Enterprise Irrigation District Darrow v. Calkins, 154 N. Y. Canal Co, 243 U^S. 157 303 503 11 Entick v. Carrington, 19 How. Davenport City v. Dows, 15 State Trials 1029 463 Wall. 390 126 Equitable Life Assurance So- Davies v. Humphreys, 6 M. ciety v. McElroy, 83 Fed. & W. 153 266 631 317 Davis v. Cohen Co, 268 U. S. Erb v. Morasch, 177 U. S. 638 419 584 169 Davis v. United States, 247 Erie R. R. Co. v. Williams, Fed. 394 85 233 U. S. 685 167,362 TABLE OF CASES CITED. xxiii Page. Page. Europa, The, [1908] P. 84 331 Fowlkes v. Nashville & De- Eustis v. Bolles, 150 U. S. catur R. R. Co., 9 Heisk. 361 ' 573 829 341 Eversole v. State, 106 Tex. Frank; v. Mangum, 237 U. S. Cr. 567 465 309 87 Ewing v. Howard, 7 Wall. Frese v. Chicago, etc. R. R. 499 323 Co., 263 U. S. 1 342 Fairchild v. Hughes, 258 U. S. Frick v. Pennsylvania, 268 126 289 U. S. 473 6,222,401 Farmers’ Feed Co. v. Insur- Frick v. Webb, 263 U. S. 326 572 ance Co., 166 Fed. Ill 77 Frisbie v. United States, 157 Farmers & Mechanics Sav- U. S. 160 360 ings Bank v. Minnesota, Frost v. Railroad Comm’n, 232 U. S. 516 50,147,532 271 U. S. 583 401 Farrel v. O’Brien, 199 U. S. Frost v. Thompson, 219 Mass. 89 572,575 360 548 Federal Land Bank v. Cros- Frothingham v. Shaw, 175 land, 261 U. S. 374 40 Mass. 59 9 Federal Trade Comm’n v. Par- Fuller v. Atchison, etc. R. R. cific Paper Ass’n, 273 U. S. Co., 124 Kan. 66 344 52 330 Fuller v. Yentzer, 94 U. S. Fidelity & Deposit Co. v. 288 257 Pennsylvania, 240 U. S. Fulwiler v. McClun, 285 Ill. 319 537 174 290 Fidelity & Deposit Co. v. Gaines v. Washington, 277 Tafoya, 270 U. S. 426 401 U S 81 138 Fidelity Natl Bank & Trust Gallup’s Appeal, 76 Conn. 617 8 Co v. Swope, 274 U. S. Gambino v United States, ru I TT a %™ U. 8- 310 483 Field V. Clark, 143 U. S. Gardner v. North State Mu- ■nr • _ tual Life Ins. Co., 163 N. C. Frnnie v. Walker, 257 Fed. ggy ’ First Nat’l Bank v. Anderson, Garrison v. Memphis Ins. Co., 269 U. S. 341 148 19 HoY' 312 , m 79 Flint v. Stone Tracy Co., 220 Gass, etc. Ltd. v. Tax U. S. 107 291,403,527,550 ~ Comm n’269 .U- S-271 423 Florida v. Mellon, 273 U. S. Ge°r^ Go- v- ono 12 529 Smith, 128 U. S. 174 208 Florida East Coast Ry. v. GeTrTd^ Lustgarten, 266 United States, 234 U. S. „u- s- 32i. T 229 167 3Q2 German Alliance Ins. Co. v. Foote & Co. v. Stanley, 232 Kansas, 233 U. S. 389 360 U. S. 494 170 Gillespie v. Oklahoma, 257 Forbes v. Gracey, 94 U. S. Lb S. 501 148,221 762 151 Gindrat v. People, 138 Ill. Ford v. Delta & Pine Land 10$ 467 Co., 164 U. S. 662 533 Gloucester Ferry Co. v. Penn- Ford v. Surget, 97 U. S. 594 108 sylvania, 114 U. S. 196 13 Ford v. United States, 273 Goldsmith v. Board of Tax U. S. 593 206 Appeals, 270 U. S. 117 564 Fort Smith Lumber Co. v. Gompers v. United States, Arkansas, 251 U. S. 532 412 233 U. S. 604 235 XXIV TABLE OF CASES CITED. Page. Page. Gooch v. Oregon Short Line Hammond, City of, v. Schappi R. R. Co., 258 U. S. 22 469 Bus Line, 275 U. S. 164 131 Goodyear Dental Vulcanite Hampton v. Phipps, 108 U. S. Co. v. Davis, 102 U. S. 222 256 260 267 • Gordon v. United States, 117 Hampton, Jr., & Co. v. United U. S. 697 289 States, 276 U. S. 394 210 Gouled v. United States, 255 Hancock v. Muskogee, 250 U. S. 298 461 U. S. 454 159 Grace v. American Central Hanover Ins. Co. v. Harding, Ins. Co., 109 U. S. 278 59 272 U. S. 494 401 Grand Trunk Western Ry. Hardman v. Firemen’s Ins. Co., v. Railroad Comm’n, Co., 20 Fed. 594 316 221 U. S. 400 113 Harkin v. Brundage, 276 U. S. Grant v. Raymond, 6 Pet. 36 480 218 146,254 Hartford Fire Ins. Co. v. Grant Smith-Porter Co. v. Bonner Mercantile Co., 44 Rohde, 257 U. S. 469 137 ped. 151 182 Great Northern Ry Co. v. Hatch v. Reardon, 204 U. S. United States, 277 U. S. 152 53 223 n in r no. Hawley v. Walker, 232 U. S. Greenough v. Greenough, 284 71« ?7*i rIU' 1 Qk r 290 Hecht v- Malley, 265 U. S. Green-Wheeler Shoe Co. v. 144 kkq Chicago, etc. R. R., 130 la. „ a/t t> 100 123 334 Hecht v- & M. Ry., 132 Griener v. Lewellyn, 258 U. S. Ind. 507 341 004 J ’ K9Q Heisler v. Thomas Colliery Grier v. Insurance Co., 132 ’ N. C.542 316 H?Tdr^ck^ Maryland, 235 Griffith v. Connecticut, 218 n u, noo U g ’ 375 Herrmann v. Edwards, 238 Grigsby v. Russell, 222 U. S. TT a 215 14g ’ 35q Hess v. Pawloski, 274 U. S. Gromer v. Standard Dredging ^2 . « Co., 224 U. S. 362 537 Hester v. United States, 265 * Grossman, Ex parte. 267 U. S. TTV-.®-^7 465 8.7 235 Higgins v. McCrea, 116 U. S. Grubbe v. Grabbe, 26 Ore. $71 349 363 206 Hill v. Penna. Ry. Co., 178 Gsell v. Insular Collector, 239 Pa. 223 345 U. S. 93 123 Hill v. Wallace, 259 U. S. 44 534 Gulf, etc. Ry. Co. v. Ellis, 165 Hilton v. Merritt, 110 U. S. U. S. 150 37 97 561 Gulf, etc. Ry. Co. v. McGin- Hodges, In re Estate of, 170 nis, 228 U. S. 173 346 Cal. 492 9 Gulf, etc. Ry. Co. v. Moser, Hogan v. City of Indianapolis, 275 U. S. 133 346 159 Ind. 523 170 Hamilton v. Young, 116 Kan. Holden v. Hardy, 169 U. S. 128 550 366 375 Hamilton Co. v. Massachu- Home Furniture Co. v. United setts, 6 Wall. 632 529 States, 271 U. S. 456 182 Hammond v. Johnston, 142 Home Insurance Co. v. Au- U. S. 73 573 gusta, 93 U. S. 116 106 TABLE OF CASES CITED. xxv Page. Page. Home Insurance Co. v. New Jett Bros. Distilling Co. v. York, 134 U. S. 594 408 City of Carrollton, 252 Homes Savings Bank v. Des U. S. 1 272,571 Moines, 205 U. S. 503 147 Jetton v. University of the Hopkins’ Appeal, 77 Conn. South, 208 U. S. 489 533 644 8 John P. King Mfg. Co. v. Au- Houston v. Packing Co., 249 gusta, 277 U. S. 100 136,166 U. S. 479 ,210 Johnson v. Maryland, 254 Howard v. Detroit Stove U. S. 51 221 Works, 150 U. S. 164 254 John Woods & Sons v. Carl, Howerton, State ex rel., v. 203 U. S. 358 148 Tate, 68 N. C. 546 204 Kane v. New Jersey, 242 Hughes v. State, 145 Term. U. S. 160 169 544 467 Keasbey & Mattison Co., Hull v. Burr, 234 U. S. 712 574, jn re> ißo U. S. 221 217 576,578 Keeney v. New York, 222 Hump Hairpin Co. v. Emmer- u. S. 525 9 TTSon’j^^ • itn Kehrer v. Stewart, 197 U. S. Hurtado v. California, 110 qq Hurwit^ Missouri ex rel., v. 86 K^r ”■ 133 U’ S- _ North, 271 U S. 40 31 v Potomac 267 Hussey v. Arnold, 185 Mass. power Co, 261 v g 428 272 th- • n + i -D Kendall v. Winsor, 21 How. Illinois Central R. R.’ Co. v. o99 ’ Kentucky, 218 U. S. 551 29 „ , . ~ ~ Incandescent Lamp Patent, Kentucky Finance Corp n v. 159 U. S. 465 257 262 Indian Oil Co. v. Oklahoma, U. 8. 544 400 240 U. S. 522 148 221 Kentucky Railroad Tax Cases, Indiana Mfg. Co. v. Koehne, H5 37 188 U S 681 304 Keokee Coke Co. v. Taylor, Indrapura, The, 171 Fed. 929 331 234 U. S. 224 374 Insurance Co. v. Higgin- Kilbourn v. Thompson, 103 botham, 95 U. S. 380 315 US 168 201 Interboro Rapid Transit Co. Kirtland v. Hotchkiss, 100 v. Sohmer, 237 U. S. 276 527 U. S. 491 15 Intermountain Rate Cases, Kish v. Taylor, [1912] A. C. 234 U. S. 476 210 6?4 331 International Stevedoring Co. Klein v. Globe & Rutgers v. Haverty, 272 U. S. 50 228 Ins. Co., 2 F. (2d) 137 77 Interstate Buses Corp’n v. Knapp v. Morss, 150 U. S. Blodgett, 276 U. S. 245 50, 221 257 170,408 Knowlton v. Moore, 178 U. S- Interstate Buses Corp’n v. 41 8 Holyoke Street Ry. Co., 273 Knoxville Iron Co. v. Harbi- U. S. 45 171 son, 183 U. S. 13 360 Jackson, Ex parte, 96 U. S. Kohlsaat v. Parkersburg & 727 460 Marietta Sand Co., 266 Jackson v. Turnley, 1 Drew, Fed. 283 334 617 290 Kollock, Ex parte, 165 U. S. Jaybird Mining Co. v. Weir, 526 210 271 U.S. 609 148,222 Kutter v. Smith, 2 Wall. 491 286 XXVI TABLE OF CASES CITED. Page. Page. La Belle Iron Works v. United Looney v. Crane Co., 245 States, 256 U. S. 377 532 U. 8. 178 401 Lady Rangdale v. Briggs, 8 Louisville R. R. Co. v. Ray-DeG. M. & G. 391 290 mond’s Admr., 135 Ky. Lake Erie, etc. R. R. Co. v. 738 345 Public Utilities Comm’n, Louisville, etc. R. R. Co. v. 249 U. S. 422 112 Clark, 152 U. S. 236 341 Lake Superior Mines v. Lord, Louisville, etc. R. R. Co. v. 271 U. S. 577 42 Garrett, 231 U. S. 298 113 Lancaster v. McCarty, 267 Louisville & Nashville R. R. v. U. S. 427 124 United States, 238 U. S. 1.. 302 Land Development Co. v. Louisville Gas & Electric Co. New Orleans, 13 F. (2d) v. Coleman, 277 U. S. 32 401 898, reversed, 17 F. (2d) Lusitania, The, 251 Fed. 1016 119 715 334 La Tourette v. McMaster, 248 Lynch v. Burt, 132 Fed. 417 507 U. S. 465 167 M. C. & L. M. Ry. Co. v. Lawrence v. Minturn, 17 Swan, 111 U. S. 379 59 How. 100 331 Mackay Telegraph Co. v. Lit- Leathe v. Thomas, 207 U. S. tie Rock, 250 U. S. 94 169 93 303 Magoun v. Illinois Trust & Leeds & Catlin Co. v. Victor Savings Bank, 170 U. S. Talking Machine Co., 213 283 37 U. S. 301 254 Maine v. Grand Trunk Ry. Leloup v. Port of Mobile, 127 Co., 142 U. S. 217 423 U. S. 640 171 Mann v. Carter, 74 N. H. Levy Leasing Co. v. Siegel, 345 9 258 U. S. 242 360 Marbury v. Madison, 1 Cranch Lexington v. Commercial 137 487 Bank, 130 Mo. App. 687 206 Marcus Brown Co. v. Feld- Liberty Warehouse Co. v. man, 256 U. S. 170 360 Grannis, 273 U. S. 70 289 Maricopa, etc. R. R. Co. v. Liberty Warehouse Co. v. Arizona, 156 U. S'. 347 122 Tobacco Growers’ Ass’n, Martin v. Bennett, 291 Fed. 276 U. S. 71 289 626 31 Light v. United States, 220 Martin v. District of Colum-U. S. 523 291 bia, 205 U. S. 135 38 Lines’ Estate, In re, 155 Pa. Maryland v. Soper, 270 U. S. 378 9 9 482 Little Cahaba Coal Co. v. Maryland Casualty Co. v. United States, 15 F. (2d) Fouts, 11 F. (2d) 71 264 863 560 Massachusetts v. Mellon, 262 Littlewood v. Mayor, 89 N. Y. U. S. 447 289 24 341 Matheson v. Campbell, 78 Live Oak Water Users Ass’n' Fed. 910 258 v. Railroad Comm’n, 269 Mattingly v. Northwestern, U. S. 354 113,272 etc. R. R. Co., 158 U. S. 53 59 Livingston v. Maryland Ins. Maynard v. Hill, 125 U. S. Co., 6 Cranch 274 316 190 211 Logan v. United States, 144 McCardle, Ex parte, 7 Wall. U. S. 263 467 506 211 Lone Wolf v. Hitchcock, 187 McCarthy v. Arndstein, 266 U. S. 553 436 U. S. 34 477 TABLE OF CASES CITED. xxvn Page. Page. McCarty v. McCarty, 275 Ill. Miller v. Wilson, 236 U. S. 573 290 373 375,403 McCoach v. Insurance Co., Millers v. Augusta, 63 Ga. 244 U. S. 585 523 772 115 McCullough v. Maryland, 4 Millers’ Indemnity UnderWheat. 316 147,221,472 writers v. Braud, 270 U. S. McFarland v. American Sugar 59 137 Co., 241 U. S. 79 96 Millsaps College v. City of McFarland v. M. K. & T. Ry. Jackson, 275 U. S. 129 533 Co., 94 Mo. App. 336 206 Milwaukee & St. Paul Ry. v. McGowan v. Parish, 237 U. S. Kellogg, 94 U. S. 469 334 285 507 Mitchell v. Tilghman, 19 McGrain v. Daugherty, 273 Wall. 287 257 U. S. 135 388 Mobile, etc. R. R. v. Turnip- McKenzie v. Northwestern seed, 219 U. S. 35 96 Mutual Life Ins. Co., 26 Mobile & Montgomery Ry. v. Ga. App. 225 317 Jurey, 111 U. S. 584 331 McLanahan v. Universal Ins. Moore v. Fidelity & Deposit Co., 1 Pet. 170 316 Co., 272 U. S. 317 134 McLaurin v. McLauchlin, 215 Morris v. Duby, 274 U. S. Fed. 345 182 135 169 McLean v. Arkansas, 211 Mountain Timber Co. v. U. S. 539 360 Washington, 243 U. S. 219 54 McLean v. Denver, etc. R. R. Muller v. Oregon, 208 U. S. Co., 203 U. S. 38 47,122 412 363 Merchants’ Bank v. Pennsyl- Municipal Securities Corp’n vania, 167 U. S. 461 36,530 v. Kansas City, 246 U. S. Merrill v. Nat’l Bank, 173 63 572 U. S. 131 266 Munn v. Illinois, 94 U. S. Messel v. Foundation Co., 274 113 355 U. S. 427 228 Murphy v. California, 225 Metcalf & Eddy v. Mitchell, U. S. 623 54 269 U. S. 514 225,521 Murray v. Charleston, 96 Metropolis Theatre Co. v. U. S. 432 14 Chicago, 228 U. S. 61 46 Murray v. Hoboken Land & Metropolitan Street Ry. Co., Improvement Co., 18 How. People ex rel., v. New York, 272 31 199 U. S. 1 533 Muskrat v. United States, Metropolitan Water Co., Ex 219 U. S. 346 289 parte, 220 U. S. 539 * 269,566 Mutual Ins. Co. v. Hurni Co., Michaels v. New York Cen- 263 U. S. 167 322 tral R. R., 30 N. Y. 564 334 Mutual Life Ins. Co. v. Hil- Michaelson v. United States, ton-Green, 241 U. S. 613 321 266 U. S. 42 235 Mutual Loan Co. v. Martell, Michigan Central R. R. Co. 222 U. S. 225 360 v. Vreeland, 227 U. S. 59 340 Myers v. United States, 272 Michigan Public Utilities U. S. 52 . 202,235,487 Comm’n v. Duke, 266 U. S. Nathan v. Louisiana, 8 How. 570 172 73 550 Middendorf v. Goodale, 202 National Bank of Commerce Ky. 118 36 v. Rockefeller, 174 Fed. 22 267 Miller v. Milwaukee, 272 National Surety Co. v. Salt U. S. 713 521 Lake County, 5 F. (2d) 34 265 xxvin TABLE OF CASES CITED. Page. Page. National Union Fire Ins. (Do. Oliver v. Liverpool, etc. Co., v. Wanberg, 260 U. S. 71 320 100 Mass. 531, affirmed sub Nettleton’s Appeal, 76 Conn. nom. Liverpool Ins. Co. v. 235 8 Massachusetts, 10 Wall. 566 550 New Brunswick v. United Oliver v. Seaboard Air Line, States, 276 U. S. 547 221 261 Fed. 1 343 New England Divisions Case, Oliver Iron Mining Co. v. 261 U. S. 184 300 Lord, 262 U. S. 172 405 New Jersey v. Sargent, 269 O’Reilly v. Morse, 15 How. U.S. 328 289 62 257 New Orleans v. Stempel, 175 O Reilly de Camara v. Brooke, U.S. 309 13 209 US 45 483 New Orleans Waterworks Co. man’ • • v. Louisiana Sugar Refining n 1 ok • k t ™ ’ iOKTia 10 inn Osaka Shosen Kaisha v. Lum- Co., 125 U b. 18 109 ber Co., 260 U. S. 490 156 New York Life Ins. Co. v. nt tt a -d i n 0*71 tt a mn koq Osborn v. U. S. Bank, 9 Edwards, 271 U. S. 109 523 Wtn„+ «700 ’ New York Life Ins. Co. v. n^heat' 1si TT „ 214 Moats, 207 Fed. 481 316 °*?™e ”• ■Flonda’ 164 U. S. North American Cold Stor- A r mo n „ on Oscanyan v. Arms Co., 103 ,rin «-Chicago, 211 U. S. 261 349 nt k a ■ a. r- Ozan Lumber Co. t>. Union NorthAmencan Storage Co. County Nafl Bank 207 v. Chicago, 211 U. S. 306 110 u s 251 148 Northern Pacific Ry- Co. v. Pacific Express Co. v. Seibert, Department of Public 142 TT 9 339 53 Works, 268 U. S. 39 113,272 Pacific Stock Ore- Northern Pacific Ry. Co. v. gon Water Board, 241 U. S. North Dakota, 250 U. S. 440 290 135 472 Packard v. Banton, 264 U. S. Northern Pacific Ry. Co. v. 140 172 Walker, 47 Fed. 681 402 Packard Motor Car Co. v. Northwestern Mutual Life Detroit, 232 Mich. 245 520 Ins. Co. v. Wisconsin, 275 Panama R. R. Co. v. John- U. S. 136 148,221,521 son, 264 U. S. 375 156,228 Norton v. Whiteside, 239 U. S. Panama R. R. Co. v. Vas- 144 574,576,578 quez, 271 U. S. 557 228 Oates v. NaPl Bank, 100 Panhandle Oil Co. v. Missis- U. S. 239 389 slPPi ex rel. Knox, 277 Oceanic Steam Navigation _> %®- 218 401 Co. v. Stranahan, 214 U. S. PaperBagPatent Case, 210 320 210 405 147 . r™ 1*70 tt a Paquete Habana, The, 189 Ohio t>. Thomas, 173 U. S. U. S. 453 483 _. , „ 1 Parsons v. District of Colum- Oklahoma Gas Co. v. Russell, ^ia 170 u g 45 j22 261 U. S. 290 113,271 Passavant v. United States, Old Dominion S. S. Co. v. 148 U. S. 214 210,561 Virginia, 198 U. S. 299 17 Patapsco Guano Co. v. Board Olin v. Kitzmiller, 259 U. S. of Agriculture, 171 U. S. 260 574 345 169 TABLE OF CASES CITED. xxix Page. Page. Patterson v. Bark Eudora, Phoenix Life Ins. Co. v. Rad- 190 U. S. 169 375 din, 120 U. S. 183 316 Patterson v. Kentucky, 97 Piedmont & Arlington Life U. S. 501 148 Ins. Co. v. Ewing, 92 U. S. Paul v. Virginia, 8 Wall. 168 548 377 318 Pawhuska v. Pawhuska Oil Piedmont Power & Light Co. Co., 250 U. S. 394 574 v. Town of Graham, 253 Peck v. Lowe, 247 ü. S. 165 527 U. S. 193 572,576 Penn Mutual Life Ins. Co. v. Pierce Oil Corp’n v. Hopkins, Lederer, 252 U. 8. 523 523 264 U. 8. 137 224 Penn Mutual Life Ins. Co. v. Pittsburgh Coal Co. v. Bates, Mechanics’ Savings Bank & 156 U. S. 577 17 Trust Co., 72 Fed. 413 316 Plummer v. Coler, 178 U. 8. Pennock v. Dialogue, 2 Pet. 1 149 115 529 Pennsylvania v. Wheeling, Portland v. N. E. T. & Co., etc. Bridge Co., 18 How. 103 Me. 240 206 421 211 Postal Telegraph Co. v. Pennsylvania R. R. Co. v. Charleston, 153 U. 8. 692 171 U. S. R. R. Labor Board, Postal Telegraph Co. v. New 261 U. S. 72 271 Hope, 192 U. 8. 55 170 Pensacola Telegraph Co. v. Postal Telegraph Co. v. Rich- Western Union, 96 U. 8. 1 472 „ mond, 249 U. 8. 252 169 People v. Assessors, 156 N. Y. Postum Cereal Co. v. Califor- 417 148 nia Fig Nut Co., 272 U. 8. People y. Cas tree, 311 Ill. 392 467 698 ~ n , 289 People v. Commissioners, 4 P™d?i Wall. 244 • 530 p 98 U # 126 Q 256 1 n . . ... Power Co. v. Saunders, 274 People v Coimmssioners, 41 r g 490 400 ow. Prac. Rep. 459 520 prentis v. Atlantic Coast Line People v. Defore, 242 N. Y. Co, 2n v g 210 272 „„ ........407 Procter & Gamble Co. v. People v. McDonald, 177 United States, 225 U. S. App. Div. (N. Y.) 806 469 282 181 Hn^on Trust Co., Provident Institution v. Mas- 2o5 Ill. 168 9 sachusetts, 6 Wall. 611 529 People v. Weaver, 100 U. S. Pullman Co. v. Knott, 235 539 532 U. S. 23 53,532 Peoples v. Peoples Bros., 254 Pullman’s Car Co. v. Pennsyl- Fed. 489 266 vania, 141 U. S. 18 16 Peoples Nat’l Bank v. Board Pusey & Jones Co. v. Hans- of Equalization, 260 U. S. sen, 261 U. S. 491 290 702 530 Quong Ham Wah Co. v. In- Perkins Glue Co. v. Gould dustrial Comm’n, 255 U. S. Mfg. Co., 292 Fed. 596 247 445 572,576 Perkins Glue Co. v. Standard Quong Wing v. Kirkendall, Furniture Co., 287 Fed. 109 247 223 U. S. 59 46,403 Perry’s Admr. v. L. & N. Rail Coal Co. v. Ohio Indus- R. R. Co., 199 Ky. 396 345 trial Comm’n, 236 U. 8. Philadelphia & Reading Ry. 338 374 Co. v. Hancock, 253 U. 8. Railroad Co. v. Penniston, 18 284 168 Wall, 5 17,225 xxx TABLE OF CASES CITED. Page. Page. Railroad Tax Cases, 13 Fed. St. Louis v. Western Union, 722 37,402 148 U. S. 92 170 Raley & Bros. v. Richardson, St. Louis Compress Co. v. Ar- 264 U. S. 157 171 kansas, 260 U. S. 346 38,401 Raymond v. Chicago Trac- St. Louis, etc. Ry. Co. v. tion Co., 207 U. S. 20 304 Craft, 237 U. S. 648 341 Read v. G. E. Ry., L. R. 3 St. Paul Gas Light Co. v. St. Q. B. 555 341 Paul, 181 U. S. 142 115 Reading Co. v. Koons, 271 Santa Clara, County of, v. U. S. 58 343 Southern Pacific R. R. Co., Reagan v. United States, 202 18 Fed. 385 37,402 Fed. 488 85 Savings & Loan Society v. Reavis v. Fianza, 215 U. S. Multnomah County, 169 16 123 U. S. 421 13 Red “ C ”• Oil Co. v. Board of ScSesÄ v‘ Wlsconsm> 270 Agriculture, 222 U. S. 380 169 „P.8;.230 37 Reeside, The, Fed. Cas. No. v' Chlcag0’ 226 11 657 2 Sumn 567 79 U- S- 578 375 Reinman v. Little Rock, 237 Sc^ * Pacific Ry’’ Ü g 171 Hl 246 Fed. 545 242 Rhode Island Trust Co. v. ^oard Air nne v. Padg^ Doughton, 270 U. S. 69 423 286 U'S,,68, oao tt^^’ Richardson Machinery Co. v. Sh,^er ”• Carter> 262 U- S' Scott, 276 U. S. 128 573 . ,<• . n 02Z Richmond Screw Anchor Co. £ Q1™0/ Mming Co’’ v. United States, 275 U. S. Q,145 u- ,O/n 217 Ooi ’ l2to Shemman, In re, 14 F. (2d) 001 323' 560 RTTyo”-cM^ehusetts, 232 ghelton v platt; 139 y g U. b. 671 375 591 393 Risdon Iron & Locomotive Sherwood’s Estate, In re, 122 Works «.Medart, 158 U.S Wash. 648 9 _ 207 Shoemaker v. United States, Risty v. Chicago, etc. R. R. 147 u g 282 202 Co., 270 U. S. 378 . 574 Shulthis v. McDougal, 225 Road Improvement District U S 561 574 576 578 R’ R‘ Silberman v. Blodgett, 105 Co., 274 U. S. 188 162 Conn 192 6 ’ 8 Roberts & Schaefer Co. y. Silberschein v. United States, Emmerson, 271 U. S. 50 54,573 266 U. S. 221 561 Robinson v. United States, Silverthorne Lumber Co. v. 292 Fed. 683 467 United States, 251 U. S. Rooke v. Lord Kensmgton, 335 499 2 K. & J 753 290 Singer Mfg. Co. v. Wright, Rosen v. United States, 245 141 u. g. 696 289 U. S. 467 467 ginger Sewing Machine Co. Ross v. Oregon, 227 U. S. 150 127 v. Benedict, 229 U. S. 481 304 Royster Guano Co. v. Vir- Sioux Remedy Co. v. Cope, ginia, 253 U. S. 412 37 235 U. S. 197 401 Rubber Co. v. Goodyear, 9 Slaughter House Cases, 16 Wall. 788 254 Wall. 36 548 St. John’s Corp’n v. Com- gligh v. Kirkwood, 237 U. S. panhia Geral, 263 U. S. 119 331 52 47 TABLES OF CASES CITED. xxxi Page. Page. Smietanka v. First Trust & State v. Slamon, 73 Vt. 212 467 Savings Bank, 257 U. S. State v. United Rys., 121 Md. 602 242 457 345 Smith, In re, 193 Cal. 337 359 State v. Wills, 91 W. Va. 659 467 Smith v. Kansas City Title & State Tax on Foreign-Held Trust Co., 255 U. S. 180 148 Bonds, 15 Wall. 300 13 Smith v. Wilson, 273 U. S. Stebbins v. Riley, 268 U. S. 388 134 137 52,405 Smoot v. Heyl, 227 U. S. 518 122 Stephens v. Cherokee Nation, Snowden, Ex parte, 17 Ch. D. 174 U. S. 445 437 44 266 Stevens v. Griffith, 111 U. S. Society for Savings v. Coite, 48 109 6 Wall. 594 529 Stewart v. Virginia, 117 U. S. Solva Waterproof Glue Co. v. 612 290 Perkins Glue Co., 251 Fed. Stockman v. Leddy, 55 Colo. 64 251 24 203 Sonnebom Bros. v. Cureton, Strang v. Scott, 14 App. Cas. 262 U. S. 506 224 801 333 Southeastern Express Co. v. Stratheam S. S. Co. v. Dil- Robertson, 264 U. S. 541 323 Ion, 252 U. S. 348 375 Southern Bell Telephone Co. Strode v. Transit Co., 197 v. Cassin, 111 Ga. 575 341 Mo. 616 345 Southern Bell Telephone Co. Sultan Ry., etc. v. Dep’t of v. Railroad Comm’n, 280 Labor of Washington, 277 Fed. 901 271 U. S. 135 272 Southern Ry. Co. v. Greene, Supervisors v. Stanley, 105 216 U. S. 400 405 U. S. 305 54 Southern Ry. Co. v. Prescott, Swick v. Coleman, 218 Ill. 33 206 240 U. S. 632 334 Syracuse, The Steamer, 12 South Spring Hill, etc. Co. v. Wall. 167 73 Amador Medean, etc. Co., Telegraph Co. v. Texas, 105 145 U. S. 300 289 U. S. 460 222 Southwestern Oil Co. v. Texas, Tennessee v. Sneed, 96 U. S. 217 U. S. 114 405 69 303 Sowell v. Federal Reserve Terminal Railroad Ass’n v. Bank, 268 U. S. 449 214 United States, 266 U. S. 17 298 Sperry & Hutchinson v. City Terminal Taxicab Co. v. Dis- of Tacoma, 190 Fed. 682 119 trict of Columbia, 241 U. S. Spies v. Illinois, 123 U. S. 252 360 131 85 Terrace v. Thompson, 263 Springfield Gas & Electric Co. U. S. 197 222,572 v. Springfield, 257 U. S. 66 535 Terre Haute, City of, v. Ker-Springfield Nat’l Bank v. sey, 159 Ind. 300 170 American Surety Co., 7 F. Texas v. Interstate Commerce (2d) 44 264 Comm’n, 258 U. S. 158 289 Standard Scale Co. v. Farrell, Thebaud v. Great Western 249 U. S. 571 104,127,271 Ins. Co. 155 N. Y. 516 76 State v. Fahn, 53 N. D. 203 468 Thessaloniki, The, 267 Fed. State v. Gardner, 77 Mont. 8 467 67 333 State v. Hinkle, 126 Wash. Thomas Cusack Co. v. Chi- 581 550 cago, 242 U. S. 526 134 State v. Paine, 137 Wash. * Thompson v. Phoenix Ins. 566 550 Co., 136 U. S. 287 322 XXXII TABLES OF CASES CITED. Page. Page. Thorley v. Orchis S. S. Co., United States v. Grimaud, [1907] 1 K. B. 660 331 220 U. S. 506 210 Tomlinson v. City of Indian- United States v. Illinois Cen-apolis, 144 Ind. 142 170 tral R. R. Co., 244 U. S. Torrence v. Shedd, 144 U. S. 82 181 527 60 United States v. Kaufman, 96 Toup v. Ulysses Land Co., U. S. 567 561 237 U. S. 580 572,576 United States v. Lee, 274 Traill v. Baring, 4 DeG. J. U. S. 559 465 & 8. 318 317 United States v. Los Angeles, Transportation Co. v. Downer, etc. r. r. Co., 273 U. S. 11 Wall. 129 334 299 182,271 Jersey’ 262 United States v. Mille Lac u- 182 074 Chippewas, 229 U. S. 498 436 Tucker v. Ferguson, 22 Wall. United States v. Mitchell, 271 527 150,533 u. S. 9 245 Tumey v. Ohio, 273 U. S. 510 63 United States v. Natl Surety Jenson’ 3 Asp- ™ Co, 254 U. S. 73 266 m W- 488 t, j 7b United States v. Old Settlers, Turret Crown, The, 297 Fed. 148 v g. 427 436 7®n United States v. Oppen- Tyler v. Boston, 7 Wall. 327 254 heimer, 242 U. S. 85 236 Tyson & Bro. v. Banton, 273 United States v. Pennsylva- U. S. 418 355 nia r. r. Co, 242 U. S. Underwood Typewriter Co. 208 300 v. Chamberlain, 254 U. S. United States v. Reid, 12 113 423,527 How. 361 466 Union Bridge Co. v. United United States v. Rindskopf, States, 204 U. S. 364 210 105 U. S. 418 560 Union Pacific R. R. Co. v. United States v. Ritchie, Fed. Weld County, 247 U. S. Cas. No. 16,168 520 282 304 United States v. River Rouge Union Refrigerator Transit Co, 269 U. S. 411 26 Co. v. Kentucky, 199 U. S. United States v. Union Pa-194 13 cific Ry. Co, 160 U. S. 1 507 United States v. Abilene, etc. United States v. Whitridge, Ry. Co, 265 U. S. 274 300 231 U. S. 144 242 United States v. Alaska S. S. U. S. Fidelity & Guaranty Co, 253 U. S. 113 289 Co. v. Union Bank & Trust United States v. Anderson, Co, 228 Fed. 448 267 269 U. S. 422 244 U. S. Glue Co. v. Oak Creek, United States v. Atchison, 247 U. S. 321 527 etc. Ry. Co, 249 U. S. 451 561 Upshur County v. Rich, 135 United States v. Babcock, 250 U. S. 467 290 U. S. 328 182,561 Valley Farms Co. v. West- United States v. Barber, 219 ehester County, 261 U. S. U. S. 72 236 155 159 United States v. Chicago, etc. Van Allen v. Assessors, 3 Ry, 298 Fed. 779 242 Wall. 573 530 United States v. Emery, etc. Vandalia Railroad v. South Co, 237 U. S. 28 561 ‘Bend, 207 U. S. 359 303 TABLES OF CASES CITED. xxxm Page. Page. Village of Euclid v. Ambler Westinghouse Co. v. Boyden Realty Co., 272 U. S. 365 129, Power Brake Co., 170 U. S. 185,472 537 257 Vortigern, The (1899) P. 159 76 Westinghouse Co. v. Com-Wachovia Bank & Trust Co. monwealth, 151 Pa. 265 148 v. Doughton, 272 U. S. 567 29 Weston v. Charleston, 2 Pet. Waco, City of, v. Amicable 449 106 Life Ins. Co., (Tex.) 230 Wheeler, The F. W., 78 Fed. S. W. 698; id., 248 S. W. 824 310 332 521 White v. United States, 191 Wagner v. City of Covington, U. S. 545 208 251 U S 95 222 Whitfield v. Aetna Life Ins. Walden v. Bodley, 14 Pet. 156 507 Co., 205 U. S. 489 320 Walker v. Gish, 260 U. S. 447 123 Wickwire v. Reinecke, 275 Ward v. Love County, 253 U. S. 101 560 U. S. 17 303 Willdomino, The, 272 U. S. Warner v. Corbin, 91 Conn. .71.$ ~ 532 8 Wilhams v. Bruffy, 96 U. S. Watson v. State Comptroller, tt « ^7 254 U S 122 52 Williams, Ex parte, 277 U. S. Watters v. Michigan, 248 U g 55 171 Wilhams v. Milton, 215 Mass. Wayman v. Southard, 10 wLuns Tdlad 548 Wheat. 1 210 TT a aha 171 Webb v. O’Brien, 263 U. S. wÜntagÄ & Weldon R. R. ; ... . . v. Alsbrook, 146 U. S. 279 533 Webber v. Virginia, 103 U. S. withanp „ ’United Stat w n t? ~ r au 127 Fed. 530 467 W™er Engine Co- v- Alter’ Wolff Co. v. Industrial Court, 120 Kan 557 550 262 U. S. 522 355 Weeks v. United States, 232 Wood v. Underhill, 5 How. 1 254 U.S. 383 460 Work v. Rives, 267 U. S. 175 182 Weems States’ 217 „ Yazoo & Mississippi Valley U. S. 349 472 R. R. Co. v_ Brewer, 231 Western Turf Ass’n v. Green- U. S. 245 572 berg, 204 U. S. 359 548 Yeiser v. Dysart, 267 U. S. Western Union v. Foster, 247 540 375 IT. S. 105 401 Zahn v. Board of Public Western Union v. Massachu- Works, 274 U. S. 325 188 setts, 125 U. S. 530 16 Zook, In re Estate of, 317 Western Union v. New Hope, Mo. 986 9 187 U. S. 419 169 Zucht v. King, 260 U. S. 174 111 5963°—29----------------in TABLE OF STATUTES Cited in Opinions (A) Statutes of the United States Page Page. 1789, Sept. 24, c. 20,1 Stat. 73 1908, Apr. 22, c. 149, 35 Stat. (Jurisdictional Act)... 105 65 (Employers’ Liabil- 1790, Apr. 10, c. 7,1 Stat. 109. 146 ity Act)......... 228,336 1861, Mar. 2, c. 85, 12 Stat. 1909, Aug. 5, c. 6, 36 Stat. 221 ........................ 429 11............... 407,522 1863, Mar. 3, c. 119, 12 Stat. 1910, Apr. 5, c. 143, 36 Stat. 819 ........................ 430 291 ................ 339 1866, July 27, c. 288, 14 Stat. 1910, June 18, c. 309, 36 Stat. 306 ........................ 60 539 ................ 177 1867, Feb. 5, c. 28, 14 Stat. 1910, June 25, c. 421, 36 Stat. 385 ........................ 105 847 ................ 496 1870, July 8, c. 230, 16 Stat. 1912, Aug. 23, c. 351, 37 Stat. 201 ........................ 146 415..................365 1872, June 7, c. 325, 17 Stat. 1913 Mar. 4, c. 160, 37 Stat. 281 ........................ 432 1013............. 119,269 1873, Feb. 14, c. 138, 17 Stat. 1913, Oct.. 22, c. 32, 38 Stat. 437..........................433 208 ................ 178 1875’ Mar. 3, c. 137, 18 Stat 1914 Jul 17 142 38 gtat. 470 ........................ 60,214 50d ’ ’ . 406 1878, June 14, c. 194, 20 Stat. 1914j Oct c 38 Stat. 1000 t 1 10'"¿in’on'o*”/ 730 (Clayton Act).... 233 1882, July 12, c. 290, 22 Stat. Apr c 63, 39 gtat ............................47 42R 1885, Mar. 3, c. 355, 23 Stat. inl_ 7 ’ ’ll" * V 443 191 1916, Aug. 29, c. 416, 39 Stat. 1887, Mar.’3,’ c. 373,’24 Stat’. .O1 _ q545. ’ V ’ ’ ‘Lq '¿A'¿i 7 200 559 ’ ’ 915 1916, Sept. 6, c. 44S, 39 Stat. I888, Aug. 13, 25 Stat. 433.*215 J26.......;......• • • 105 1893, Feb. 9, c. 74, 27 Stat. 1916, Sept. 8, c. 463, 39 Stat 434 122 756 (Revenue Act of 1893, Feb. 13, c.' 105,’ 27 Stat’ 1916)................ 241 446 (Harter Act)............ 330 1017, Oct. 3, c. 63, 40 Stat. 1906, June 15, c. 343S, 34 300 (Revenue Act of Stat. 304................... 370 1917)........... 241,558 1907, Mar. 2, c. 2564, 34 Stat. 1917, Oct. 6, c. 106, 40 Stat. 1246 (Criminal Ap- 411 (Trading With the peals Act).................. 234 I Enemy Act)............... 140 XXXV xxxvi TABLE OF STATUTES CITED. Page Page. 1919, Feb. 24, c. 18, 40 Stat. Revised Statutes—Continued. 1057 (Revenue Act of § 1044 237 1918)........................ 554 § 3929 464 1919, Feb. 26, c. 48, 40 Stat. §§ 3978-3988 ....... 464 1181............................. 26 §§ 4282-4289 ....... ” * 330 1920, Feb. 25, c. 85, 41 Stat. § 4884 ............ 146 437 ......................... 496 § 4888 ” ” ” .. ’ ’ ” ” 257 1920, Feb. 28, c. 9, 41 Stat. § 5234 ............ 263 456 (Transportation Judicial Code. Act)............................ 178 § 94 1920, June 5, c. 250, 41 Stat. s 94 m............. via 1007 (Jones Act). 154,228 § Z .................. 1921, Feb. 26, c. 72, 41 Stat. f ^4 (20)............. 561 1921, Nov. 23, c. 136, 42 Stat. 8 907 Zi......¿‘¿AZAA 227 (Revenue Act of ! *.......... 6,83,102,571 1921)........................... 516 |gVC)....................... *3 1924, June 2 c. 234, 43 Stat § 266 ......* ' 158,’268, 566 Sn(ReVCnUe Act of § 267 .................... 506 1924)........................... 556 § 269 .................... 26 1925, Feb. 13, c. 229, 43 Stat. § 283 .................. 158 936 ............................. 6, § 294 ..................... 216 83,102,215,269,427,571 U. S. Code. Constitutional Law. See In- Tit. 2, §§ 191-194...... 388 dex at end of volume. 28, § 41.................386 Revised Statutes. ’ 8 42 .... 215 §§ 101-104 ................. 388 § 391’ 26 § 709 ..................... 105 35, § 40................ 146 (B) Statutes of the States and Territories Page. Page. Arizona. Kentucky. 1913 Civil Code, Tit. Constitution, § 171............ 49 VII, c. XIII............... 567 1922, Carroll’s Kentucky 1919, Session Laws, c. Stats., § 4019a-9........... 35 144 ............................ 567 § 4238............... 50 Connecticut. Massachusetts. 1923 Pub. Acts, c. 190, 1921 Gen. Laws, 8 1 ’ ’ o C. b3................... 419 ~ .8 ..................... 8 c. 182, Vol. 2, p. 2077. 547 Georgia- Michigan. 12 Park’s Annotated Code, 1925 Comp. Laws, SS § 2268 (t) [1919 Bank- 9063, 9068, 9071....... 544 mg Act as amended].. 30 Mississippi. Indiana. 1922 Laws, c. 116....... 220 1921, Jan. 12, Ordinance 1924 Laws, c. 115............. 220 No. 2135, City of South xT k19?6 Laws’ c> 119......................220 ■d a Nebraska. Bend............................ 166 1922 Comp. Stats. §§ Kansas- 5839, 5840, 5847-5850, 1923 Rev. Stats, c. 9 ... 93 5904, 5905, 5996 .......... 269 TABLE OF STATUTES CITED. xxxvn Page. Page. New Jersey. Pennsylvania—Continued. 1918 Laws, c. 227 ......... 354 1901, May 8, P. L. 150.. 400 New York. 1913, July 22, P. L. 903. 400 1919 Laws, c. 408........... 10 1920 Stats. § 20,388. 404 1922 Laws, c. 640........... 11 Philippine Islands. Ohio. 1916, Feb. 4, Act 2612.. 198 Code, §§ 6212-6215.......... 62 1917, Mar. 10, Act 2705. 198 Oklahoma. 1918, Feb. 20, Act 2747.. 198 1921 Comp. Stats. §§ 1921, Jan. 30, Act 2938.. 198 9971, 9973................. 303 Washington. Pennsylvania. 1921, Pierce’s Code, § 1889, June 1, P. L. 420, 8976 (18).......... 480 431 ....................... 398 1922, Remington’s Comp. 1899, May 3, P. L. 189. .400 Stats. § 2656-18... 468 (C) Treaties Page. 1852, June 23, 10 Stat. 952 (Sioux Indians)............... 428 (D) Foreign Statutes England. 9 and 10 Victoria (Lord Campbell’s Act)................... 341 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1927. BLODGETT v. SILBERMAN et al. SILBERMAN et al. v. BLODGETT. CERTIORARI AND ERROR TO THE SUPERIOR COURT OF FAIR-FIELD COUNTY, CONNECTICUT. Nos. 190 and 191. Argued March 12, 13, 1928.—Decided April 16, 1928. 1. The State of a decedent’s domicile may impose a succession tax on the transfer of his intangible property by will or inheritance under her laws, even though the evidences of such property be outside of the State at the time of his death, and even though the transfer be subject to taxation in another jurisdiction. Mobilia sequuntur personam. P. 8. 2. The interest of a deceased partner in a limited partnership governed by c. 408, N. Y. Laws, 1919, among whose assets are buildings and land, is an interest in the surplus of assets with a right to an accounting—a chose in action. It is intangible property subject to succession tax in the State of his domicile. P. 10. 3. Bonds and certificates of indebtedness of the United States, payable to bearer and transferable from hand to hand, though having some of the qualities of physical property are nevertheless intangible property—choses in action—subject to succession tax by the State of the deceased owner’s domicile, although physically they have been in another State ever since he acquired them. State Tax on Foreign-Held Bonds, 15 Wall. 300; Frick v. Penna., 268 U. S. 473, and other cases distinguished. P. 12. 4. The domiciliary State may likewise tax the succession to stocks of corporations of other States, the certificates for which have 5963°—29---1 J 2 OCTOBER TERM, 1927. Counsel for Parties. 277 U. S. never been within its borders; a savings deposit in another State; and life insurance collected there by the decedent’s estate. P. 18. 5. But bank notes and coin kept by the decedent in a safe deposit box in another State, are tangible property and not subject to transfer tax by the State of his domicile. Id. 6. A testator, resident in Connecticut, died possessed of an interest in a New York partnership, stocks, bonds and a bank account in New York and a life insurance policy in a New York company. The will, which devised most of the property to New York charities, was probated in New York, and the estate largely settled there, including the payment of debts and legacies and the fixation and payment of the New York transfer and federal estate taxes. Held that subsequent proceedings in Connecticut by which a tax was imposed on the succession to the intangibles mentioned, did not deny full faith and credit to the public acts, records and proceedings of New York. Id. 7. The full faith and credit clause does not make judgments binding on those who were neither party nor privy to the proceedings in which they were rendered. P. 19. 105 Conn. 192, affirmed in part; reversed in part. Review of a judgment of the Superior Court of Connecticut, levying a succession tax pursuant to the opinion and advice of the Supreme Court of Errors, 105 Conn. 192, on the transfer of property under the will of a resident of the State. The executors sued out a writ of error from this Court upon the ground that the taxing statute, as applied, violated the Fourteenth Amendment and the full faith and credit provision of the Constitution. The Connecticut Tax Commission applied for a certiorari to so much of the judgment as denied to the State, because of the Fourteenth Amendment, the right to tax the transfer of certain securities of the United States and bank notes and coin. Mr. Charles E. Hughes, with whom Messrs. Benjamin W. Alling, Farwell Knapp, Lucius F. Robinson, and John F. Caskey were on the brief, for Blodgett. Messrs. Abraham L. Gutman and Kenneth Dayton for Silberman et al. BLODGETT v. SILBERMAN. 3 1 Opinion of the Court. Mr. Seth T. Cole for the Tax Commission of the State of New York and the Commissioner of Corporations and Taxation of Massachusetts as amici curiae, by special leave of Court. Messrs. Wm. R. Perkins, Sol M. Stroock, Forrest Hyde, and Harry H. Shelton submitted a brief as amici curiae on behalf of the Estate of James B. Duke, deceased, by special leave of Court. Mr. Chief Justice Taft delivered the opinion of the Court. These two cases, which are really one, grow out of the operation of a transfer tax by the State of Connecticut. They are brought to this Court, one by certiorari, and one by writ of error. The questions presented are whether the tax on the transfer of certain parts of the large estate of Robert B. Hirsch was in violation of the due process clause of the Fourteenth Amendment to the Federal Constitution in that they were tangible property in New York and not in Connecticut. Hirsch died September 23, 1924, domiciled at Stamford, Connecticut, leaving a will with two codicils executed in accordance with the laws of both New York and Connecticut. The plaintiffs are the surviving executors of the will. Hirsch left real estate, chattels, cattle, horses and poultry in Connecticut, and also a debt due from a resident of Connecticut and a certificate of stock in a Connecticut corporation, as to all of which there is no dispute about the tax that was imposed. The great bulk of his estate, however, consisted of (1) a large interest, as general partner, appraised at $1,687,245.34, in the partnership of William Openhym & Sons, doing business in New York, and organized under the Limited Partnership Act of that State; (2) certificates of stock in New York, New Jersey and Canada corporations, appraised at $277,864.25; (3) bonds and Treasury 4 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. certificates of indebtedness of the United States, appraised at $615,121.17; (4) a small savings bank account in New York; (5) a life insurance policy in the Mutual Life Insurance Company of New York payable to the estate; and (6) a small amount of bank bills and coin in a deposit box in New York. All the bonds and certificates of stock at the time of the decedent’s death, and for a long time prior thereto, had been physically placed and kept in safe deposit boxes in New York City and were never in Connecticut. The partnership assets consisted of real estate in New York and also in Connecticut, merchandise, chattels, credits, and other personal property. The testator bequeathed the larger part of his estate to charitable and educational corporations organized under the laws of New York and existing in that State. The executors offered the will and codicils for probate in New York. They were admitted to probate in the Surrogate’s Court in the County of New York, and thereafter the executors pro ceeded in the settlement of the estate in New York. They have paid from the funds of the estate legacies provided in the will and codicils amounting to $299,297.45. They have also paid the debts, the federal estate tax and the New York transfer or inheritance tax, which amounted to $19,166.04. The transfer report in that court exempted the legacies bequeathed to charitable and educational institutions in accord with New York law. The executors have paid to the trustees named in the will and codicils the amount therein mentioned for the benefit of certain persons named. The executors sold the stock standing in the name of the decedent and made transfer of the same to the purchaser, and the Mutual Life Insurance Company paid to the executors the proceeds of the policy. The National City Bank of New York paid to the executors the amount of a small deposit account therein to the credit of the decedent at the time of his death. BLODGETT v. SILBERMAN. 5 1 Opinion of the Court. On January 8, 1925, the executors presented to the Court of Probate, for the Stamford district of Connecticut, an exemplified copy of the will and codicils from the record of the proceedings in the Surrogate’s Court in New York, and on January 15, 1925, that court received the will and codicils and accepted a bond for the executors and issued to them letters testamentary, made an order limiting the time for the presentation of claims, directed the filing of an inventory of all the property, including choses in action of the estate of the decedent, and appointed appraisers who made and filed the inventory of all the foregoing items of property belonging to the decedent at the time of his death. On September 1, 1925, the executors filed in the Probate Court for the Stamford district, and with the tax commissioner for Connecticut, a statement under oath covering the property of the estate and the claimed deductions therefrom, all this for the purpose of determining the succession tax, if any, due the State of Connecticut. The tax commissioner thereafter filed a copy of his computation of the tax with the Probate Court, to which the executors made objection, but that court on December 4,1925, made its order and decree approving the computation of $188,-780.58, and directed the executors to pay this amount to the State Treasurer. From this order the plaintiff executors took an appeal to the Superior Court of Fairfield County, and then by stipulation of the parties the case was reserved for the advice and direction of the Supreme Court of Errors as to what judgment, decree or decision should be made or rendered thereon by the Superior Court. The chief questions considered by the Supreme Court of Errors were, first, whether the interest of the decedent in the partnership of Openhym & Sons was subject to a transfer tax in Connecticut, and second, whether the bonds of the United States and certificates of its indebted 6 OCTOBER TERM, 1927. Opinion of the Court. 277U.S. ness were to be deemed tangible property in New York and beyond the taxing jurisdiction of the State of Connecticut. There were other questions of taxable jurisdiction over other items of the estate, but we shall consider these two first. The Supreme Court of Errors held, first, that the interest of the decedent in the partnership was a chose in action and intangible and the transfer thereof was subject to the tax imposed by the law of the decedent’s domicil; second, that the bonds and certificates of the United States were tangible property having a situs in New York and were not within the taxable jurisdiction of Connecticut, but were to be regarded as in the same class of tangibles as the paintings, works of art and furniture considered in the case of Frick n. Pennsylvania, 268 U. S. 473. In that case, Pennsylvania, the State of Mr. Frick’s domicil, sought to impose a transfer or succession tax on the paintings and other tangible personalty, which had always been in New York City, and it was held that they had an actual situs in New York and that, under the Fourteenth Amendment, Pennsylvania could impose no transfer or successsion tax in respect of them. Applying what it conceived to be the principle of that case to the bonds of the United States and certificates of its indebtedness in this, the Supreme Court of Errors held that their transfer could not be taxed in Connecticut. The Superior Court, following the advice of the Supreme Court of Errors, entered a judgment giving full effect to it. That is the final judgment in the case and it is the judgment now to be reviewed. In No. 191 a writ of error was allowed by the Chief Justice of the Supreme Court of Errors and the Presiding Judge of the Superior Court of the State of Connecticut under Section 237(a) of the Judicial Code, Act of February 13, 1925 (ch. 229, 43 Stat. 936, 937) to the final and consolidated judgment of the Superior Court of Con- BLODGETT v. SILBERMAN. 7 1 Opinion of the Court. necticut as the highest court of the State in which a decision in the suit could be had, because there was drawn in question therein the validity of chapter 190, of the Public Acts of 1923 of Connecticut, on the ground of its being repugnant to the Constitution of the United States, and especially to the Fourteenth Amendment thereof, in that the statute as construed and applied by the Superior Court levied a succession tax on the transfer and succession of property and choses in action of the decedent which were within the jurisdiction of New York and not within the jurisdiction of Connecticut, the decedent’s domicil. In No. 190, the State Tax Commissioner applied for a writ of certiorari to the same consolidated judgment, and sought a reversal of that judgment in so far as it denied to the State of Connecticut, because of the Fourteenth Amendment to the Federal Constitution, the power and right created by its statute, chapter 190 of the Public Acts of 1923, to tax the transfer of the United States bonds and certificates of indebtedness and of 8287.50 in bank notes and coin, all in a safe deposit box in the City and State of New York, as not within the taxing jurisdiction of Connecticut. Had the Supreme Court of Errors put its ruling against the validity of part of the tax on the construction of the State Constitution or statute, we could not review that ruling, because it would have involved only a question of state law, but so far as the ruling was put on the ground that the State could not impose the tax consistently with the due process of law clause of the Fourteenth Amendment, a federal question is presented which we may consider, and when we have determined the federal questions, the cause will go back to the state court for further proceedings not inconsistent with our views on such federal questions. 8 OCTOBER TERM, 1927. Opinion of the CouW?. 277U.S. Hie Connecticut SUeoessioii and Transfer Act, Ch. 190 bf the Public Acts of 1923, says in its section 1: All property and any interest therein owned by a resident of this state at the time of his decease, and all real estate within this state owned by a nonresident of this state at the time of his decease, which shall pass by will or inheritance under the laws of this state; and all gifts of such property by deed, grant or other conveyance, made in contemplation of the death of the grantor or donor, or intended to take effect in possession or enjoyment at or after the death of such grantor or donor, shall be subject to the tax herein prescribed.” This is a tax not upon property but upon the right or privilege of succession to the property of a deceased person as is made clear in the opinion of the Supreme Court of Errors in this and prior cases. Silberman v. Blodgett, 105 Conn. 192; Corbin v. Townshend, 92 Conn. 501; Hopkins’ Appeal, 77 Conn. 644; Warner v. Corbin, 91 Conn. 532; Gallup’s Appeal, 76 Conn. 617; Nettleton’s Appeal, 76 Conn. 235. These cases are all in accord with Knowlton v. Moore, 178 U. S. 41, 47, in which it was said by this Court that: “ Taxes of this general character are universally deemed to relate, not to property eo nomine, but to its passage by . will or by descent in case of its intestacy, as distinguished from taxes imposed on property, real or personal as such, because of its ownership and possession. In other words, the public contribution which death duties exact is predicated on the passing of property as the result of death, as distinct from a tax on property dissociated from its transmission or receipt by will, or as the result of intestacy.” The power of the State of a man’s domicil to impose a tax upon the succession to, or the transfer of, his intangible property, even when the evidences of such property are outside of the State at the time of his death, has been constantly asserted by the legislatures of the various BLODGETT v. SILBERMAN. $ 1 Opinion of the Court. States. The Supreme Court of Errors in its opinion in this case says that at the present time the inheritance tax laws of over four-fifths of the States impose a tax similar to that imposed by Connecticut. Frothingham v. Shaw, 175 Mass. 59; In re Estate of Zook, 317 Mo. 986; In re Sherwood’s Estate, 122 Wash. 648; Mann. v. Carter, 74 N. H. 345; People v. The Union Trust Company, 255 Ill. 168; In re Lines’ Estate, 155 Pa. 378; In re Estate of Hodges, 170 Cal. 492¿ Commonwealth v. Williams’ Executor, 102 Va. 778. The same principle was recognized by this Court in Carpenter v. Pennsylvania, 17 How. 456, before the adoption of the Fourteenth Amendment, and the principle was reaffirmed thereafter in Orr v. Gilman, 183 U. S. 278; Keeney v. New York, 222 U. S. 525; and Bullen v. Wisconsin, 240 U. S. 625. In the latter case the question arose as to the power of Wisconsin to impose a tax upon the succession to certain intangible property of one of its citizens, the evidences of which were held by a trust company in Illinois upon a revocable trust at the time of his death, and the power was sustained. Reference to the record in the case shows that the property included shares of stock in Missouri, New Jersey and Illinois corporations; stock in a national bank organized under the National Banking Act; mortgage bonds and debentures issued by New Jersey, Illinois, Missouri, Utah and Kansas corporations; promissory notes of residents of Illinois and Minnesota; insurance policies issued by New York, Canadian and Wisconsin insurance companies; and money on deposit in two Illinois banks. The same principle was affirmed in the Frick case. At common law the maxim “ mobilia sequuntur personam ” applied. There has been discussion and criticism of the application and enforcement of that maxim, but it is so fixed in the common law of this country and of England, in so far as it relates to intangible property, including choses in action, without regard to whether they are 10 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. evidenced in writing or otherwise and whether the papers evidencing the same are found in the State of the domicil or elsewhere, and is so fully sustained by cases in this and other courts, that it must be treated as settled in this jurisdiction whether it approve itself to legal philosophic test or not. Further, this principle is not to be shaken by the inquiry into the question whether the transfer of such intangibles, like specialties, bonds or promissory notes, is subject to taxation in another jurisdiction. As to that we need not inquire. It is not the issue in this case. For present purposes it suffices that intangible personalty has such a situs at the domicil of its owner that its transfer on his death may be taxed there. This brings us to the question whether the partnership interest of the decedent in William Openhym & Sons was a chose in action and intangible personalty. The partnership was a limited partnership organized in New York, the last agreement therefor having been executed in December, 1921. The New York partnership law then in force was Chapter 408, Laws of 1919. Under Section 51, of this law, a partner is a co-owner with his partner of specific partnership property, holding this property as a tenant in partnership. Such tenancy confers certain rights with limitations. A partner has a right equal to that of his partners to possess specific partnership property for partnership purposes, but not otherwise. His right in specific partnership property is not assignable nor is it subject to attachment or execution upon a personal claim against him; upon his death the right to the specific property vests not in the partner’s personal representative but in the surviving partner; his right in specific property is not subject to dower, curtesy, or allowance to widows, heirs or next of kin. Section 52 specifically provides: “A partner’s interest in the partnership is his share of the profits and surplus and the same is personal property.” BLODGETT v. SILBERMAN. 11 1 Opinion of the Court. Under Section 73, when any partner dies and the partnership continues, his personal representative may have the value of his interest at the date of dissolution ascertained and receive as an ordinary creditor an amount equal to the value of his interest in the partnership with interest. Under Section 98, Chapter 640, Laws of 1922, the rights of a general partner in a limited partnership, which was the interest of the decedent here when he died, are identical with those of a general partner in a general partnership. And in regard to a limited partner’s interest, Section 107 of the law specifically provides : “A limited partner’s interest in the partnership is personal property.” It is very plain, therefore, that the interest of the decedent in the partnership of William Openhym & Sons was simply a right to share in what would remain of the partnership assets after its liabilities were satisfied. It was merely an interest in the surplus, a chose in action. It is an intangible and carries with it a right to an accounting. There were among the holdings and property of the partnership, buildings and land. Although these statutes were passed after the decision in Darrow v. Calkins, 154 N. Y. 503, we have no reason for thinking that the partnership law of New York is now any different from what its Court of Appeals said it was in that case, pp. 515, 516, as follows: “ It is, however, generally conceded that the question whether partnership real estate shall be deemed absolutely converted into personalty for all purposes, or only converted pro tanto for the purpose of partnership equities, may be controlled by the express or implied agreement of the partners themselves, and that where by such agreement it appears that it was the intention of the partners that the lands should be treated and administered 12 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. as personalty for all purposes, effect will be given thereto. In respect to real estate purchased for partnership purposes with partnership funds and used in the prosecution of the partnership business, the English rule of 1 out and out ’ conversion may be regarded as properly applied on the ground of intention, even in jurisdictions which have not adopted that rule as applied to partnership real estate acquired under different circumstances and where no specific intention appeared. The investment of partnership funds in lands and chattels for the purpose of a partnership business, the fact that the two species of property are in most cases of this kind, so commingled that they can not be separated without impairing the value of each, has been deemed to justify the inference that under such circumstances the lands as well as the chattels were intended by the partners to constitute a part of the partnership stock and that both together should take the character of personalty for all purposes, and Judge Denio in Collumb v. Read expressed the opinion that to this extent the English rule of conversion prevailed here. That paramount consideration should be given to the intention of the partners when ascertained, is conceded by most of the cases.” It thus clearly appears that both under the partnership agreement and under the laws of the State of New York the interest of the partner was the right to receive a sum of money equal to his share of the net value of the partnership after a settlement, and this right to his share is a debt owing to him, a chose in action, and an intangible. We concur with the Supreme Court of Errors that as such it was subject to the transfer tax of Connecticut. We come then to the second question, whether bonds of the United States and certificates of indebtedness of the United States deposited in a safe deposit box in New York City, and never removed from there, owned by the BLODGETT v. SILBERMAN. 13 1 Opinion of the Court. decedent at the time of his death, were intangibles which come within the rule already stated. The argument is that such bonds, payable to bearer and transferable from hand to hand, have lost their character as choses in action and have taken on the qualities of physical property, and cases are cited to indicate that they can be made the subject of execution and constitute a basis for the jurisdiction of the courts and of taxing officers of the State in which the paper upon which the evidence of the debt or obligation is written, is found, although their owner lives and dies in another State. The Supreme Court of Errors takes this view, citing Frick v. Pennsylvania, and holds that the transfer of the United States bonds and certificates is taxable in New York where they are, and only there. The Court cites, as sustaining its conclusion that the transfer of the bonds is only taxable in New York, the case of State Tax on Foreign-Held Bonds, 15 Wall. 300. This case is often cited to the point that Mr. Justice Field takes as indisputable (on page 319) that a State may not tax property that is not within its jurisdiction—a matter recognized in Frick n. Pennsylvania, 268 U. S. 473, 489; Union Refrigerator Transit Company n. Kentucky, 199 U. S. 194, 202, and Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 206. The effect of some of Mr. Justice Field’s language in that case, and the exact point on which the decision there turned, have since been fully discussed by this Court and qualified in Savings & Loan Society v. Multnomah County, 169 U. S. 421, 428; New Orleans v. Stempel, 175 U. S. 309, 319, 320; and Blackstone v. Miller, 188 U. S. 189, 206. The tax there held invalid was a tax imposed by a statute of Pennsylvania upon the interest due a non-resident bond holder on bonds issued by a corporation of that State. It is now settled in these later cases that the point decided in the State Tax on 14 OCTOBER TERM, 1927. Opinion of the Court, 277 U.S. Foreign-Held Bonds case was that the law of Pennsylvania in requiring the railroad company, which issued the bonds, to pay the state tax on them and deduct it from the interest due the non-resident owners, was as to them a law impairing the obligation of contracts under Murray v. Charleston, 96 U. S. 432. The case, therefore, is not authority for the proposition for which the Supreme Court of Errors cites it, to-wit: That such bonds are to be completely assimilated to tangible personal property. The other cases cited by the Supreme Court of Errors are New Orleans v. Stempel, 175 U. S. 309, 321, and like cases which follow it in which a State, not that of the domicil of the owner, has been held to have the right to tax bonds, promissory notes, and other written evidences of choses in action with which business is there carried on for the owner, giving them what is sometimes called a a business situs ”; but such cases have little or no bearing on the power of the State of a decedent’s domicil to tax the transfer of his bonds which we are now considering. The question here is whether bonds, unlike other choses in action, may have a situs different from the owner’s domicil such as will render their transfer taxable in the State of that situs and in only that State. We think bonds are not thus distinguishable from other choses in action. It is not enough to show that the written or printed evidence of ownership may, by the law of the State in which they are physically present, be permitted to be taken in execution or dealt with as reaching that of which they are evidence, even without the presence of the owner. While bonds often are so treated, they are nevertheless in their essence only evidences of debt. The Supreme Court of Errors expressly admits that they are choses in action. Whatever incidental qualities may be added by usage of business or by statutory provision, this characteristic remains and shows itself by the fact that BLODGETT v. SILBERMAN. 15 1 Opinion of the Court. their destruction physically will not destroy the debt which they represent. They are representative and not the thing itself. The case of Kirtland v. Hotchkiss, 100 U. S. 491, is in point. The case came to this Court from the Supreme Court of Errors of Connecticut and it involved the taxable status in that State of bonds held by one of its citizens and evidencing a debt owing to him by a citizen of Illinois. The court said, p. 498: “ The question does not seem to us to be very difficult of solution. The creditor, it is conceded, is a permanent resident within the jurisdiction of the State imposing the tax. The debt is property in his hands constituting a portion of his wealth, from which he is under the highest obligation, in common with his fellow-citizens of the same State, to contribute for the support of the government whose protection he enjoys. “ That debt, although a species of intangible property, may, for purposes of taxation, if not for all others, be regarded as situated at the domicile of the creditor. It is none the less property because its amount and maturity are set forth in a bond. That bond, wherever actually held or deposited, is only the evidence of the debt, and if destroyed, the debt—the right to demand payment of the money loaned, with the stipulated interest—remains. Nor is the debt, for the purposes of taxation, affected by the fact that it is secured by mortgage upon real estate situated in Illinois. The mortgage is but a security for the debt, and, as held in State Tax on Foreign-held Bonds (supra), the right of the creditor ‘ to proceed against the property mortgaged, upon a given contingency, to enforce by its sale the payment of his demand, . . . has no locality independent of the party in whom it resides. It may undoubtedly be taxed by the State when held by a resident therein,’ &c. Cooley on Taxation, 15, 63, 134, 270. The debt, then, having its situs at the creditor’s 16 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. residence, both he and it are, for the purposes of taxation, within the jurisdiction of the State/’ The line which was drawn in the case of Frick n. Pennsylvania, supra, was one which was adopted from the decision of this Court in Union Refrigerator Transit Company v. Kentucky, 199 U. S. 194, and other cases cited in the same connection, where it was held that the power of taxation could not extend to tangible chattels having an actual situs outside the jurisdiction, although the owner was within it. It was pointed out that this is not true of debts and choses in action, which usually have a taxable situs at the owner’s domicil. In the Union Refrigerator case, this Court said, p. 205: “ In this class of cases the tendency of modern authorities is to apply the maxim mobilia sequuntur personam, and to hold that the property may be taxed at the domicil of the owner as the real situs of the debt, and also, more particularly in the case of mortgages, in the State where the property is retained.” The Court again said, p. 206: “ The arguments in favor of the taxation of intangible property at the domicil of the owner have no application to tangible property. The fact that such property is visible, easily found and difficult to conceal, and the tax readily collectible, is so cogent , an argument for its taxation at its situs, that of late there is a general consensus of opinion that it is taxable in the State where it is permanently located and employed and where it receives its entire protection, irrespective of the domicil of the owner. We have, ourselves, held in a number of cases that such property permanently located in a State other than that of its owner is taxable there. Brown v. Houston, 114 U. S. 622; Coe v. Errol, 116 U. S. 517; Pullman's Car Co. v. Pennsylvania, 141 U. S. 18; Western Union Telegraph Company v, Massachusetts, 125 U. S, 530; Railroad Com- BLODGETT v. SILBERMAN. 17 1 Opinion of the Court. pany v. Peniston, 18 Wall. 5; American Refrigerator Transit Company n. Hall, 174 U. S. 70; Pittsburgh Coal Company v. Bates, 156 U. S. 577; Old Dominion Steamship Company n. Virginia, 198 U. S. 299.” The Court continued, p. 206: “There are doubtless cases in the state reports announcing the principle that the ancient maxim of mobilia sequuntur personam still applies to personal property, and that it may be taxed at the domicil of the owner, but upon examination they all or nearly all relate to intangible property, such as stocks, bonds, notes and other choses in action. We are cited to none applying this rule to tangible property, and after a careful examination have not been able to find any wherein the question is squarely presented. . . .” The discussion in the Union Refrigerator case shows what this Court meant in the Prick case in holding that personal property in the form of paintings and furniture having an actual situs in one State could not be subjected to a transfer tax in another State, and emphasizes the inference that it did not apply to anything having as its essence an indebtedness or a chose in action and could not apply to property in the form of specialties or bonds or other written evidences of indebtedness whether governmental or otherwise, even though they passed from hand to hand. The analogy between furniture and bonds cannot be complete because bonds are representative only and are not the thing represented. They are at most choses in action and intangibles. We think therefore that the Supreme Court of Errors in extending the rule of the Frick case from tangible personal property, like paintings, furniture or cattle, to bonds, is not warranted, and to that extent we must reverse its conclusion in denying to Connecticut the right to tax the transfer of the bonds and Treasury certificates. 5963°—29------2 18 OCTOBER TERM, 1927. Opinion of the Court. 277 U. 8. Of course this reasoning necessarily sustains the different view of that court that the transfer of certificates of stock in corporations of other States than Connecticut was taxable in the latter as the transfer of choses in action. Among the other items is a savings bank account in New York which is certainly a chose in action and was properly treated as subject to the same rule. So, too, a life insurance policy payable to the estate was also of that character. There was a small amount of cash, 8287.48, in bank notes and coin in a safe deposit box in New York which the Supreme Court of Errors held not taxable in Connecticut. As to this, the contention on behalf of Connecticut is that it should be treated as attached to the person of the owner and subject to a transfer tax at the domicil. It is argued that it was not like coin or treasure in bulk, but like loose change, so to speak. To money of this amount usually and easily carried on the person, it is said that the doctrine of mobilia sequuntur personam has peculiar application in the historical derivation of the maxim. But we think that money, so definitely fixed and separated in its actual situs from the person of the owner as this was, is tangible property and can not be distinguished from the paintings and furniture held in the Frick case to be taxable only in the jurisdiction where they were. The results thus stated lead to our reversing the judgment of the Superior Court of Connecticut, in respect to the tax on the transfer of the bonds and certificates of indebtedness of the United States, and to our affirming the judgment in other respects. It is further contended by the executors that the proceedings in the Connecticut court and the judgment therein fail to give full faith and credit to the public acts, records and proceedings of the State of New York, and that this is in violation of the Constitution of the WILLIAMS v. GT. SOUTHERN LUMBER CO. 19 1 Syllabus. United States. We do not think there is anything in this point. There is nothing in the proceedings in the Connecticut court that is inconsistent with those in the New York court. There is nothing to indicate that the New York court decided, assuming it had jurisdiction to decide, that there was no power in the State of Connecticut to impose a tax on the transfer that was taxed in Connecticut. More than that, the proceedings and judgment in New York were not such as would conclude Connecticut even with the aid of the full faith and credit clause of the Constitution. Connecticut was not a party to those proceedings or to that judgment, nor was it in privity with any one who was a party. Affirmed in part and reversed in part. WILLIAMS v. GREAT SOUTHERN LUMBER COMPANY. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 252. Argued March 1, 2, 1928.—Decided April 16, 1928. 1. Plaintiff sought damages from the defendant Lumber Company for the death of her husband, alleging that the company had conspired with others to kill him and break up a local labor union of which he was the head, and that his death, which occurred through shooting when warrants were being served on three other men in his office, was the result of such conspiracy. A crucial issue was whether the party that killed him was in character a mob acting with the company or a bona fide posse sent by the Chief of Police to aid a city policeman in making*the arrests; and upon this issue the reason had by the Chief of Police for sending a posse was of prime importance. Respecting this it appeared among other facts (detailed in the opinion), that on the morning when the shooting occurred the three men, for one of whom a warrant had already been issued, were seen on the street, the other two armed with shotguns; that the three walked together along the main street 20 OCTOBER TERM, 1927. Counsel for Parties. 277 U. S. • of the city causing excitement among bystanders, and entered the decedent’s office; that a policeman who saw them notified the Chief of Police; and that the Chief of Police obtained a warrant for arrest of the two armed men, charging breach of the peace; lodged it and the other warrant with a paid policeman for service, and, in view of conditions threatening to the public peace and the reported conduct of the two armed men, deemed it advisable to send the posse with the arresting officer. The trial judge charged that a citizen carrying arms publicly on the street committed no offense for which he was subject to arrest. Held erroneous to exclude evidence offered by the defendant company, showing that these two men, while walking the streets armed, had used threatening language, amounting in the circumstances to a breach of the peace, and that this had been communicated to the Chief of Police before he procured the warrants and ordered out the posse. P. 24. 2. In an action for the death of a man, based on an alleged conspiracy to kill him, a statement, 15 minutes after the killing, made by one of the party that did it, to the effect that they had come to kill the deceased and had killed him,—Held inadmissible against the defendant as a part of the res gestae. P. 25. 3. Since the passage of the Act of 1919, amending Jud. Code, § 269, as before, an error which relates, not to merely formal or technical matters, but to the substantial rights of the parties, is ground for reversal unless it appears from the whole record that it was harmless and did not prejudice the rights of the complaining party. P. 26. 17 F. (2d) 468, affirmed. Certiorari, 275 U. S. 511, to a judgment of the Circuit Court of Appeals, which reversed a judgment recovered in the District Court, 13 F. (2d) 246, in an action brought by the present petitioner against the respondent Lumber Company, based on the alleged unlawful killing of her husband. Petitioner sued for herself and as tutrix of a minor child. Messrs. W. J. Waguespack and A. F. Higgins, with whom Mr. Max M. Schaumburger was on the brief, for petitioner. WILLIAMS v. GT. SOUTHERN LUMBER CO. 21 19 Opinion of the Court. Mr. H. Generes Dufour, with whom Messrs. B. M. Miller and Delos R. Johnson were on the brief, for respondent. Mr. Justice Sanford delivered the opinion of the Court. This suit was brought in the federal court for eastern Louisiana by Lena A. Williams, widow of L. E. Williams, in her own behalf and as tutrix of their minor child, against the Great Southern Lumber Company, to recover damages for the alleged unlawful killing of her husband. She had a verdict and judgment. 13 F. (2d) 246. The Circuit Court of Appeals reversed the judgment, and remanded the case for a new trial. 17 F. (2d) 468. The Lumber Company operated a sawmill in the city of Bogalusa, Louisiana, in which it employed about 2,500 men, white and colored. The sawmill was conducted as an “open shop,” and although union laborers were employed individually, the Company did not deal with the union itself. Williams was president of the local union. The complaint alleged that a conspiracy had been formed between the Company, its officers, agents and others to kill Williams and destroy organized labor in the city, and that he was killed without just cause by a mob composed largely of officers, agents and employees of the Company acting within the scope of their employment. The Company'denied this, and alleged that he was killed by a posse of peace officers of the city while he was unlawfully resisting them in attempting to serve warrants issued for the arrest of certain other persons. The Circuit Court of Appeals, while stating that there was no direct evidence of the alleged conspiracy, did not pass upon the question whether the trial court had erred in denying the Company’s request for a directed verdict, but reversed the judgment on the grounds of error in de- 22 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. dining to permit the introduction of certain evidence offered by the Company, and in admitting certain evidence of the plaintiff. The petitioner contends that these rulings of the trial court were correct; and that, even if erroneous, they were technical errors which did not affect the substantial rights of the Company or constitute grounds of reversal. For the purpose of determining these contentions it suffices to say that there was substantial evidence showing or tending to show the following facts: For some time there had been much disturbance in the city, arising apparently out of friction between the labor union and the Company as to its open shop policy, and an effort to unionize the colored laborers. On one occasion millwrights brought to the city to repair broken machinery which had caused the mill to shut down, had been forced to re-enter the train and leave the city. On another, certain laborers had been put in jail and a crowd of theii sympathizers, some of whom were armed, had threatened a jail delivery. On another, the light and water plant, supplied by power from the Company’s plant, had been forced to shut down temporarily. And frequently there had been disorders at meetings of the city commission. The general condition finally became so threatening to the public peace and safety that a number of business and professional men organized a League—to which no union members or persons connected with the 'Company were admitted—for the purpose of assisting the city authorities in maintaining law and order, and offered their services to the city as volunteer police to serve when occasion might require. On the advice of the city judge and attorney and the State district judge, this offer was accepted, and many members of the League were sworn in as such special police. The Commissioner of Public Safety and the Chief of Police also arranged with the manager of the Company that when so requested a siren whistle at the mill, which WILLIAMS v. GT. SOUTHERN LUMBER CO. 23 19 Opinion of the Court. - had been customarily used as a fire alarm, should be sounded to summon the volunteer police. And on the occasion of the threatened jail delivery the volunteer police had been thus summoned and had caused the dispersal of the mob. For some weeks immediately prior to the killing of Williams there had been a shut-down of the mill due to the breakage of machinery and conditions in the city had quieted. In this state of affairs, on the day before Williams was killed, a city warrant was issued, on the complaint of a merchant who was a member of the volunteer police, against one Dacus, a colored man, on the charge of being a dangerous and suspicious character. Just what had been the connection of Dacus, if any, with the labor troubles does not clearly appear. On that day Dacus could not be found, and was not arrested. On the next day, however, he appeared on the streets of the city in company with . two white men, O’Rourke and Bouchillon, associates of Williams in the labor union, who were armed with shot guns. The three together walked along the main street of the city, causing excitement among the bystanders, and entered upon the premises upon which Williams had his office and residence. A policeman who saw them immediately informed the Chief of Police of what had occurred. The court, however, did not permit the policeman to testify as to the language used by O’Rourke and Bouchillon, which he reported to the Chief of Police; nor the. Chief of Police to testify as to the language thus reported to him. The Chief of Police, who was also informed of this occurrence by other citizens, obtained a city warrant for the arrest of O’Rourke and Bouchillon on the charge of disturbing the public peace, which, with the warrant for Dacus, was given to a paid police officer for service. Both the Chief of Police and the Commissioner of Public Safety, with whom he conferred, were of 24 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. opinion that in view of the existing conditions and the reported conduct of O’Rourke and Bouchillon, it was advisable, in view of the small number of paid police available, that the officer to whom the warrants were given should be accompanied by the Commissioner of Public Safety and by the volunteer police. At their request the Superintendent caused the siren whistle to be sounded, and many of the volunteer police assembled at the city hall. A posse consisting of the paid policeman with these volunteer police, headed by the Commissioner of Public Safety, then proceeded to Williams’ office for the purpose of making the arrests. They were also accompanied or followed by several other people—some of whom were officers or employees of the Company—who had not been summoned as members of the posse. There was a direct conflict in the evidence as to what occurred when the posse reached Williams’ office; some of the witnesses testifying to the effect that Williams and others in the office were killed by members of the party, without warning or provocation; and others testifying that Williams, who was standing at the door of the office, was notified that the purpose of the visit was to serve warrants on Dacus, O’Rourke and Bouchillon, and called upon to put down a pistol held by him and permit the arrests to be made, which he refused to do; and that a shot was then fired from the inside of the office, and this was followed by a fusillade from outside and inside the office, in which Williams was killed, and others, including O’Rourke and Bouchillon, were killed or wounded. 1. The Company should have been permitted to show the language that was used by O’Rourke and Bouchillon and communicated to the Chief of Police. The offer of proof was to the effect that, as communicated to the Chief of Police, O’Rourke and Bouchillon while walking down the streets with shotguns, with Dacus between them, WILLIAMS v. GT. SOUTHERN LUMBER CO. 25 19 Opinion of the Court. said—using vile and opprobrious epithets—that they would like to see any white man who would come and take Dacus away, or the eye of any white man who would touch him. This plainly indicated a purpose to prevent by force the arrest of Dacus, and was a breach of the peace. A crucial issue in the case was whether the party that killed Williams was a mob, acting in concert with the Company, which had gone to his office for the purpose of killing him; or whether it was a bona fide posse of peace officers sent by the Chief of Police and the Commissioner of Public Safety to aid the officer in making the arrests. On this issue it was of prime importance to the Company to show the reason which the Chief of Police and the Commissioner of Public Safety had for sending the posse of voluntary police to assist in making the arrest, and not leave the bona fide nature of the posse— which was directly brought in issue—to depend merely upon the expression of their opinion without a full showing of the facts upon which that opinion was based. This was emphasized by the fact that while the district judge did not permit evidence of the threatening language used by O’Rourke and Bouchillon to go to the jury, he charged them that a citizen carrying arms publicly on the street committed no offense and was not subject to arrest; thus leaving the jury to infer that the conduct of O’Rourke and Bouchillon, unaccompanied by any evidence of threatening language, was entirely lawful, and not a justification for issuing the warrants against them or sending the posse of voluntary police to assist in the arrests. The exclusion of evidence as to the threatening language obviously prevented the Company from presenting its full and complete defense to the jury. 2. The district court also permitted the plaintiff, over the objection of the Company, to testify that about ten or fifteen minutes after her husband had been killed and 26 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. the last shot had been fired, she heard one Carson, a member of the volunteer police force, say that “ they had come to kill Lem Williams, and they had killed him.” There was a direct conflict in the evidence as to whether Carson had been with the party at the time Williams was killed; the weight of the evidence being to the effect that he had been sent to another part of the city and had arrived after the killing. But, however this may be, the statement made by him as to the purpose the party had in coming, made after the killing had taken place and when the conspiracy, if one had existed, had accomplished its purpose, was hearsay, not part of the res gestae, and not admissible against the Company. 3. The judgment was properly reversed on account of these errors. This was not affected by the provision of § 269 of the Judicial Code, as amended in 1919/ that in an appellate proceeding judgment shall be given after the examination of the entire record, 11 without regard to technical errors, defects or exceptions which do not affect the substantial rights of the parties.” The errors in the exclusion and admission of evidence directly affected the substantial rights of the Company. Since the passage of this Act, as well as before, an error which relates, not to merely formal or technical matters, but to the substantial rights of the parties “ is to be held a ground for reversal, unless it appears from the whole record that it was harmless and did not prejudice the rights of the complaining party.” United States v. River Rouge Co., 269 U. S. 411, 421. Here it cannot be said from the entire record that the errors were harmless; but on the contrary they were material and of a highly prejudicial character. Judgment affirmed. *40 Stat. 1181, c. 48; U. S. C., Tit. 28, § 391. BROOKE v. NORFOLK. 27 Argument for Respondents. BROOKE v. CITY OF NORFOLK et al. CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA. No. 229. Argued April 10, 11, 1928.—Decided April 23, 1928. A beneficiary entitled only to the income for life of a fund controlled and possessed by trustees in another State where the trust was created, cannot be taxed on the corpus of the fund by the State of his domicile in addition to a tax upon the income. P. 28. Reversed. Certiorari, 274 U. S. 734, to a judgment of the Supreme Court of Appeals of Virginia, which, in effect, sustained a judgment of the Corporation Court of Norfolk, upholding tax assessments made against the petitioner, a citizen of Virginia. Mr. Robert B. Tunstall, with whom Mr. Nathaniel T. Green was on the brief, for petitioner. Mr. E. Warren Wall for respondents. In the case of personal property, it has been repeatedly held that a general gift or bequest of the income is in contemplation of law equivalent to a gift of the property itself; that the principal of the fund passes by a gift of the income therefrom. By a long line of Virginia decisions, it has been held by the state court of last resort that it is the policy of this Commonwealth to tax the interest of all residents in all intangible property owned by them, regardless of the fact that the income from the property may be collected for and paid over to the owner by a trustee, no matter whether the trustee be a resident or a nonresident of this State. Virginia does not impose any tax upon the foreign trustee or the funds in his hands as such; the tax assessed 28 OCTOBER TERM, 1927. Opinion of the Court. 277U.S. is simply a personal charge against a resident of the State, the basis for this charge being the interest of that resident in the intangible personality held in trust for him. If the Commonwealth of Virginia is forbidden by the Federal Constitution to tax its own citizens and residents on account of their interest in intangible personal property, then upon whom»may it impose taxes on account of such ownership? Mr. Justice Holmes delivered the opinion of the court. The petitioner applied in the local form of proceeding for the correction of two assessments for taxation alleged to be erroneous and contrary to the Fourteenth Amendment. The Court of first instance, The Corporation Court of the City of Norfolk, upheld both assessments as valid, and the Supreme Court of Appeals of Virginia rejected a petition for a writ of error on the ground that the judgment below was plainly right. A writ of certiorari was granted by this Court. 274 U. S. 734. The assessments complained of were for City and State taxes upon the corpus of a trust fund created by the will of a citizen of Maryland resident in Baltimore at the time of her death. This will bequeathed to the Safe Deposit and Trust Company of Baltimore eighty thousand dollars in trust to pay the income to the petitioner for life, then to her daughters for their lives, and, upon the death of the last survivor, to divide the principal between the descendants then living of the daughters per stirpes. The will was proved in Maryland and in 1914 was admitted to probate in the Corporation Court of Norfolk as a foreign will. The property held in trust has remained in Maryland and no part of it is or ever has been in Virginia. The petitioner has paid without question a tax upon the income received by her. But the doctrine contended for' now is that the petitioner is chargeable as if she owned the whole. No doubt in the case of tangible prop- COFFIN BROTHERS v. BENNETT. 29 27 Statement of the Case. erty lying within the State and subject to a paramount lien for taxes, the occupant actually using it may be made personally liable. Illinois Central R. R. Co. v. Kentucky, 218 U. S. 551, 562. Carstairs v. Cochran, 193 U. S. 10, 16. But here the property is not within the State, does not belong to the petitioner and is not within her possession or control. The assessment is a bare proposition to make the petitioner pay upon an interest to which she is a stranger. This cannot be done. See Wachovia Bank & Trust Co. v. Doughton, 272 U. S. 567, 575. Judgment reversed. COFFIN BROTHERS & COMPANY et al. v. BENNETT. ERROR TO THE SUPREME COURT OF GEORGIA. No. 465. Argued April 17, 1928.—Decided April 30, 1928. 1. The law in Georgia by which the Superintendent of Banks may issue executions against stockholders of insolvent banks who, after notice from him, neglect to pay assessments on their stock, and which makes such executions liens on their property from date of issuance, is consistent with due process of law, since the stockholders are given opportunity to raise and try in court every possible defense by filing affidavits of illegality. P. 31. 2. The Fourteenth Amendment is not concerned with the mere form of the state procedure. Id. 3. If the debtor does not demand a trial, the execution does not need the sanction of a judgment. Id. 4. The stockholders, by becoming such, assumed the liability imposed by the statute. Id. 164 Ga. 350, affirmed. Error to a judgment of the Supreme Court of Georgia which affirmed a judgment sustaining a demurrer to a petition seeking to enjoin Bennett, the Superintendent of Banks, from issuing executions to collect assessments made on stockholders of a bank. 30 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. Messrs. G. Y. Harrell and R. S. Wimberly submitted for plaintiffs in error. Mr. Orville A. Park, with whom Mr. Carl N. Davie was on the brief, for defendant in error. Mr. Justice Holmes delivered the opinion of the Court. In July, 1926, the Richland State Bank, organized under the laws of the State of Georgia, closed its doors and turned its affairs over to the defendant in error, the Superintendent of Banks for the State. In the following September the Superintendent issued a notice to each of the plaintiffs in error that an assessment of 100 per centum on the par value of his stock was levied, as necessary to pay the depositors in full. These proceedings were under and in accordance with the Banking Act of Georgia, of 1919, as amended in 1925, codified in 12 Park’s Annotated Code, § 2268(t). That section provides that if any stockholder notified shall neglect to pay the assessment the Superintendent shall issue an execution for the amount, to be enforced like other executions, “ provided, however, that any stockholder shall have the right by affidavit of illegality, as in cases of affidavits of illegality to other executions, to contest his liability for such assessment and the amount and necessity thereof.” In that case the affidavit and execution are to be returned to court for trial. The execution is made “ a lien on all property of the defendant subject to levy and sale for the amount which shall be adjudged to be due thereon from the date of the issuance thereof by the Superintendent.” The plaintiffs in error filed a petition in equity to enjoin the Superintendent from taking the next statutory steps, on the ground that the section was contrary to the COFFIN BROTHERS v. BENNETT. 31 29 Opinion of “the Court. Fourteenth Amendment by denying to them due process of law. A general demurrer was sustained by the trial Court and by the Supreme Court of the State. 164 Ga. 350. The objection urged by the plaintiffs in error seems to be that this section purports to authorize an execution and the creation of a lien at the beginning, before and without any judicial proceeding. But the stockholders are allowed to raise and try every possible defense by an affidavit of illegality, which, as said by the Supreme Court of Georgia, makes the so called execution ‘a mode only of commencing against them suits to enforce their statutory liability to depositors.’ A reasonable opportunity to be heard and to present the defence is given and if a defence is presented the execution is the result of a trial in Court. The Fourteenth Amendment is not concerned with the form. Missouri ex rel. Hurwitz v. North, 271 U. S. 40, 42. The fact that the execution is issued in the first instance by an agent of the State but not from a Court, followed as it is by personal notice and a right to take the case into court, is a familiar method in Georgia and is open to no objection. Martin v. Bennett, 291 Fed. Rep. 626, 630, 631. If the debtor does not demand a trial the execution does not need the sanction of a judgment, (see Murray v. Hoboken Land & Improvement Co., 18 How. 272); the plaintiffs in error by becoming stockholders had assumed the liability on which they are to be held. Bernheimer v. Converse, 206 U. S. 516, 529. As to the lien, nothing is more common than to allow parties alleging themselves to be creditors to establish in advance by attachment a lien dependent for its effect upon the result of the suit. We see nothing in this case that requires further argument to show that the decision below was right. Judgment affirmed. 32 OCTOBER TERM, 1927. Syllabus. 277 U.S. LOUISVILLE GAS & ELECTRIC COMPANY v. COLEMAN, AUDITOR. ERROR TO THE COURT OF APPEALS OF KENTUCKY. No. 70. Argued October 26, 1927. Reargued February 29, 1928.— Decided April 30, 1928. , 1. A statute of Kentucky, where the recording of mortgages is essential to the protection of mortgagees against bona fide purchasers and creditors, conditions the recording of mortgages not maturing within five years upon the payment of a tax of 20^ for each $100 of value secured; but mortgages maturing within that period it exempts entirely. Held that the tax is void under the equal protection clause of the Fourteenth Amendment. Pp. 35-38. 2. The equal protection clause means that the rights of all persons must rest upon the same rule under similar circumstances. It applies to the exercise of all the powers of the State which can affect the individual or his property, including the power of taxation. P. 37. 3. Classification must always rest upon some difference which bears a reasonable and just relation to the act in respect of which the classification is proposed. Id. 4. Discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to this constitutional provision. Id. 5. In the application of the equal protection clause to the tax here in question, it is immaterial whether it be called a privilege tax or a property tax. P. 38. 6. The time within which the indebtedness secured by a mortgage is to be paid may be a proper element in fixing the amount of a tax for recording it, but this classification cannot be used to justify taxing some, while others, under circumstances identical in all respects save taxable value, are entirely exempt. Id. 7. Owing to the character and quasi-public purposes of building and loan associations in Kentucky, the provision of the statute in question exempting them from payment of the recording tax, is not violative of the equal protection clause. P. 40. 213 Ky. 762, reversed. LOUISVILLE GAS CO. v. COLEMAN. 33 32 . Argument for Defendant in Error. Error to a judgment of the Court of Appeals of Kentucky, which affirmed a judgment dismissing an action to recover money exacted as a tax on the recording of a deed of trust. Mr. Matthew O’Dogherty, with whom Mr. Alex P. Humphrey was on the brief, for plaintiff in error. Mr. Clifford E. Smith, with whom Messrs. Frank E. Daugherty, Attorney General of Kentucky, and Charles F. Creal, Assistant Attorney General, were on the brief, for defendant in error. The Fourteenth Amendment has never been so applied by this Court as to interfere with the States in adopting a system of taxation, or in making classifications of properties or objects for taxation. It is not a shield against every inequality or injustice that may result from unwise state legislation. It imposes no “iron rule of taxation ” upon the States, but is only applied when there is such a clear discrimination as to amount to a denial of equal protection of the law or a deprivation of property without due process of law within the meaning of its provisions. The opinion of the Court of Appeals of Kentucky in Middendorf n. Goodale, 202 Ky. 118, holding that the exemptions granted do not render the statute repugnant to the federal or state constitutions, is well fortified by authorities cited, especially as to the exemption of building and loan associations. None of the authorities cited bears directly on the application of the statute to mortgages where the indebtedness matures within five years. However, many of them sustain in principle the distinction or discrimination made as to such mortgages. The reason for the distinction is as obvious as to one class as to the other. It will not be seriously contended 5963d—29 3 34 OCTOBER TERM, 1927. Argument for Defendant in Error. 277 U. S. that an exemption might not have been granted as to mortgages securing indebtedness up to a certain fixed amount. It would not be difficult to find reasons for the exemption of mortgages as to so much of the indebtedness as does not mature within five years. It is a matter of common knowledge that short term loans carry the highest legal rate of interest and often, directly or indirectly, usurious rates, whereas long term loans are secured at lesser rates, usually one-half to two per cent, less than the maximum legal rate. In view of this favorable interest rate, the tax on the long term loan is not a great burden or hardship, the tax amounting to only one-fifth of one per cent, for one year. And again, a mortgagor in securing a long term loan, secures his mortgaged assets to the extent of such loan and for the term thereof against all subsequent creditors and all debts or claims arising under contract or otherwise. We might add other reasons for the distinction, but the basis for it is too apparent to require elaboration. Congress and federal courts recognize such a distinction between building and loan associations and other corporations as to warrant a discrimination in favor of the former in matters of taxation. See Corporation Excise Tax Act, Income Tax Act, War Revenue Act, Central Building Co. v. Bowland, 216 Fed. 526. The rule of uniformity and equality prescribed by the Fourteenth Amendment only requires that the statute shall apply alike to all of a class under the same circumstances and conditions. The statute under consideration meets this rule. The courts have upheld statutes where the reason for classification or discrimination was no more apparent than they are here. Pacific Express Co. n. Seibert, 142 U. S. 339; Citizens Telephone Co. v. Fuller, 229 U. S. 322; King v. Mullins, 171 U. S. 404; St. Louis Cons. Coal Co. v. Illinois, 185 U. S. 203; N. Y., N. H., & H. R. Co. v. New York, 165 U. S. 628; American Sugar Co. v. LOUISVILLE GAS CO. v. COLEMAN. 35 32 Opinion of the Court. Louisiana, 179 U. S. 89; Missouri Ry. Co. v. Mackey, 127 U. S. 205; Magoun v. Illinois Savings Bank, 170 U. S. 283. Federal Land Bank v. Crossland, 261 U. S. 374, distinguished. Mr. Justice Sutherland delivered the opinion of the Court. The plaintiff in error, a Kentucky corporation, executed a deed of trust of property in that State to secure bonds amounting in the aggregate to $150,000,000, of which $18,805,000 were issued, bearing date November 1, 1922, and maturing November 1, 1952. The deed was presented to the clerk of the Jefferson county court for record and payment made of the lawful recording fee required by the state statute, but the clerk refused to record the deed unless plaintiff in error paid to him a tax of 20^ on each $100 of the $18,805,000, as required by § 4019a-9 of the Kentucky statutes, Carroll’s Edition, 1922, the pertinent portions of which follow: “A. tax of twenty cents (200) is hereby imposed upon each one hundred ($100.00) or fraction thereof of indebtedness which is, or may be, in any contingency secured by any mortgage of property in this state, which mortgage shall be lodged for record after this act goes into effect where the indebtedness does not mature within five years. . . . “ . . . provided, however, the provisions of this section shall not apply to mortgages executed to building and loan associations.” It is provided by another Kentucky statute that no deed or deed of trust or mortgage shall be valid against a purchaser for a valuable consideration without notice thereof or against creditors until such deed or mortgage shall be lodged for record. Ky. Stats., § 496. In view of this statute, plaintiff in error concluded that it was absolutely necessary to place the deed of trust of record, 36 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. and thereupon, unwillingly and under protest, paid the amount demanded in addition to the lawful recording fee. Subsequently, plaintiff in error brought this action in the proper state court to recover the amount of the tax so paid upon the ground that the quoted provisions of § 4019a-9 were contrary to the Kentucky constitution requiring uniformity of taxes upon all property of the same class, and upon the further ground that these provisions denied the equal protection of the law and deprived plaintiff in error of its property without due process of law in contravention of the Fourteenth Amendment of the Federal Constitution. A demurrer to the petition was sustained by the court of first instance and the petition dismissed. Upon appeal to the state court of appeals, the judgment was affirmed, sub nom. Louisville Gas & Electric Co. v. Shanks, Auditor, 213 Ky. 762, upon the authority of Middendorj n. Goodale, 202 Ky. 118. The state court of appeals, in disposing of the contention that the statute violated the state constitution, held that the tax imposed was not a property tax but a privilege tax, that is, a tax imposed upon the privilege of recording mortgages, etc., the payment of which, it was said, was entirely optional with the owners or holders thereof. This determination of the state court, in so far as it affects the challenge under the state constitution, we accept as conclusive, in accordance with the well-settled rule. Merchants’ Bank v. Pennsylvania, 167 U. S. 461, 462. But the state court further held that the statute was not in conflict with the equal protection clause of the Fourteenth Amendment, and this presents a different question calling for our independent consideration and decision. The contention on behalf of plaintiff in error is that the equal protection clause is contravened by the provisions exempting from the operation of the tax, first, indebtedness which does not mature within five years, LOUISVILLE GAS CO. v. COLEMAN. 37 32 Opinion of the Court. and, second, mortgages executed to building and loan associations. The equal protection clause, like the due process of law clause, is not susceptible of exact delimitation. No definite rule in respect of either, which automatically will solve the question in specific instances, can be formulated. Certain general principles, however, have been established in the light of which the cases as they arise are to be considered. In the first place, it may be said generally that the equal protection clause means that the rights of all persons must rest upon the same rule under similar circumstances, Kentucky Railroad Tax Cases, 115 U. S. 321, 337; Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 293, and that it applies to the exercise of all the powers of the state which can affect the individual or his property, including the power of taxation. County of Santa Clara v. Southern Pac. R. Co., 18 Fed. 385,388-399; The Railroad Tax Cases, 13 Fed. 722, 733. It does not, however, forbid classification; and the power of the state to classify for purposes of taxation is of wide range and flexibility, provided always, that the classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Royster Guano Co. v. Virginia, 253 U. S. 412, 415; Air-way Corp. v. Day, 266 U. S. 71, 85; Schlesinger v. Wisconsin, 270 U. S. 230, 240. That is to say, mere difference is not enough: the attempted classification “must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis.” Gulf, Colorado & Santa Fe Ry. v. Ellis, 165 U. S. 150, 155. Discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional 38 OCTOBER TERM, 1927. Opinion of the Court. 277 IT. S. provision. Compare Martin v. District of Columbia, 205 U. S. 135, 139; Bell’s Gap R. R. Co. v. Pennsylvania, 134 U. S. 232, 237. While, for the purpose of determining whether the statute assailed violates the federal Constitution, we are not bound by the characterization of the tax by the state court, St. Louis Compress Co. v. Arkansas, 260 U. S. 346, 348, the matter is here of little importance. The application of the equal protection clause does not depend upon what name is given to the tax. Whether the tax now in question be called a privilege tax or a property tax, it falls in effect upon one indebtedness and not upon another where the sum of each is the same; where both are incurred by corporations or both by natural persons; where the percentage of interest to be paid is the same; where the mortgage security is identical in all respects; where, in short, the only difference well may be that one is payable in 60 months and the other in 59 months. No doubt the state may take into consideration as an element in fixing the amount of the tax the time within which the indebtedness is to be paid; for, since the tax is a flat sum covering the entire life of the lien, the privilege of recording the short-time lien and that of recording the long-time lien have different taxable values. But classification good for one purpose may be bad for another; and it does not follow that because the state may classify for the purpose of proportioning the tax, it may adopt the sa’me classification to the end that some shall bear a burden of taxation from which others under circumstances identical in all respects save in respect of the matter of value, are entirely exempt. Here it seems clear that a circumstance which affects only taxable values has been made the basis of a classification under which one is compelled to pay a tax for the enjoyment of a necessary privilege which, aside from the amount of the recording fee which is paid by each, is LOUISVILLE GAS CO. v. COLEMAN. 39 32 Opinion of the Court. furnished to another as a pure gratuity. Such a classification is arbitrary. It bears no reasonable or just relation to the intended result of the legislation. The difference relied upon is no more substantial, as the sole basis for the present classification, than a difference in value between two similar pieces of land would be if invoked as the sole basis for a like classification in respect of such property. Certainly one who is secured by the state in the priority of his lien for a period less than five years enjoys a privilege which in kind and character fairly cannot be distinguished from a like privilege enjoyed by another for a longer period of time. The former reasonably may be required to pay proportionately less than the latter; but to exact, as the price of a privilege which, for obvious reasons, neither safely can forego, a tax from the latter not imposed in any degree upon the former produces an obvious and gross inequality. If the state, upon the same classification, had reversed the process and taxed indebtedness maturing within a shorter period than five years, and exempted such as matured in a longer period, the inequality probably would be readily conceded, but the constitutional infirmity, though more strikingly apparent, would have been the same. We are not dealing with a charge made for services rendered or a fee for regulation, but a tax in the strict sense of the term. It is said that it is a tax upon a privilege which the owner or holder of the instrument creating a lien is free to accept or reject. But for practical purposes there is no such option, for, as this Court recently held, there is a practical necessity to record such instruments because, if not recorded, the statute overrides them in favor of purchasers without notice and creditors; and the choice is like one made under duress. “ The State is not bound to furnish a registry, but if it sees fit to do so it cannot use its control as a means to impose a liability that it cannot impose directly, any more than it can es 40 OCTOBER TERM, 1027. Opinion of the Court. 277U.S. cape its constitutional obligations by denying jurisdiction to its Courts in cases which those Courts are otherwise competent to entertain. Kenney v. Supreme Lodge of the World, 252 U. S. 411, 415.” Federal Land Bank n. Crosland, 261 U. S. 374, 378. The exemption of building and loan associations from the operation of the tax is a different matter. The equal protection clause of the Fourteenth Amendment does not preclude a state in imposing taxes from making exemptions, provided the power is not exercised arbitrarily. It may exempt the property of churches, charitable institutions, and the like; and it does not admit of fair doubt that, under the circumstances disclosed by the opinion of the court below in the Middendorf case, it has lawfully exempted building and loan associations. That court points out that a building and loan association under the Kentucky statutes must receive payments from members only and make loans to members only, in pursuance of a plan set forth. Money accumulated is to be loaned to members according to a rule of priority. The essential principle of such an association is mutuality. The purpose of the statute, the court below says, was to provide the members of the associations with the means of borrowing money for the acquisition of homes, in recognition of the duty of the state to encourage the acquisition of homes by its citizens. Such associations are also placed by the state statute in a separate class for purposes of ad valorem taxation. It is made clear by the lower court that the purpose of the exemption was to enable these associations, by relieving them of a burden, more completely to carry out the quasi-public purpose which the legislature designed in providing for their creation. This exemption, therefore, must be upheld; but, since the effect of the exemption first considered is to deny plaintiff in error the equal protection of the law in violation of the LOUISVILLE GAS CO. v. COLEMAN. 41 32 Holmes, J., dissenting. equality provision of the Fourteenth Amendment, the court belowed erred in sustaining the validity of the tax and affirming the action of the trial court in dismissing the petition. Judgment reversed and cause remanded for further proceedings not inconsistent with this opinion. Mr. Justice Holmes. When a legal distinction is determined, as no one doubts that it may be, between night and day, childhood and maturity, or any other extremes, a point has to be fixed or a line has to be drawn, or gradually picked out by successive decisions, to mark where the change takes place. Looked at by itself without regard to the necessity behind it the line or point seems arbitrary. It might as well or nearly as well be a little more to one side or the other. But when it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark. There is a plain distinction between large loans secured by negotiable bonds and mortgages that easily escape taxation, and small ones to needy borrowers for which they give their personal note for a short term and a mortgage of their house. I hardly think it would be denied that the large transactions of the money market reasonably may be subjected to a tax from which small ones for private need are exempted. The Legislature of Kentucky after careful consideration has decided that the distinction is clearly marked when the loan is for so long a term as five years. Whatever doubt I may feel, I certainly cannot say that it is wrong. If it is right as to the 42 OCTOBER TERM, 1927. Brandeis, J., dissenting. 277 U. S. run of cases a possible exception here and there would not make the law bad. All taxes have to be laid by general rules. I think that the judgment should be affirmed. Mr. Justice Brandeis, Mr. Justice Sanford and Mr. Justice Stone concur in this opinion. Mr. Justice Brandeis, dissenting. Pursuant to power conferred by the Constitution of Kentucky, its Legislature imposed a recording tax of 20 cents per $100 upon mortgages given to secure loans which do not mature within five years from the date of the mortgage. The statute discriminates between long and short term loans as subjects of taxation. A loan maturing in 60 months or more would be subject to the tax, whereas one maturing in 59 months or less, but otherwise similar in all respects would not be. The distinction between long term and short term loans—with differences in yield for securities otherwise identical in character—is one familiar to American investment bankers and their clients. Did the Kentucky Legislature, in adopting that classification for purposes of the mortgage recording tax, exceed the bounds of that “ wide discretion in selecting the subjects of taxation ” which this Court sanctions, as declared in Lake Superior Mines v. Lord, 271 U. S. 577, 582, so long as the State “ refrains from clear and hostile discrimination against particular persons or classes ”? Classifications based solely on factual differences no greater than that between a loan maturing in 59 months or less and one maturing in 60 months or more, have been sustained in many fields of legislation.1 In Citizens Tele- 1A statute which fixed the maximum rate of fare on railroads more than 75 miles long, at 3 cents, but on railroads in all other respects similarly situated, at 5 cents if the line was between 15 and 75 miles LOUISVILLE GAS CO. v. COLEMAN. 43 32 Brandeis, J., dissenting. phone Co. v. Fuller, 229 U. S. 322, 329, it was said that in taxation there is a broader power of classification than in some other exercises of legislation. The cases dealing specifically with classification for purpose of taxation on a basis similar to that here employed, are not discussed in the opinion of the Court; and only one of them is cited. It seems desirable to call attention to some of them, as the rule which they declare is embodied in the tax systems of the Nation and of many States. long, and at 8 cents if the line was 15 miles or less in length. Dow v. Beidelman, 125 U. S. 680, 690, 691. Compare Chesapeake & Ohio Ry. Co. v. Conley, 230 U. S. 513, 522. A statute which permitted railroads less than 50 miles in length to heat passenger cars by stove or furnace, but denied such permission to lines of 50 miles or more. New York, New Haven & Hartford R. R. Co. v. New York, 165 U. 8. 628, 633. A statute which permitted railroads of less than 50 miles in length to be operated without a complete crew, but denied such permission to lines of 50 miles or more. Chicago, Rock Island & Pacific Ry. Co. v. Arkansas, 219 U. 8. 453; St. Louis, Iron Mountain & Southern Ry. Co. v. Arkansas, 240 U. S. 518, 520. An inspection law which applied to mines employing 6 or more men, but not to those employing 5 or less. St. Louis Consolidated Coal Co. v. Illinois, 185 U. S. 203, 207. A screen law which applied to mines employing 10 or more men, but not to those employing 9 or less. McLean v. Arkansas, 211 U. 8. 539, 551. A statute requiring a washroom at mines where there was a request by 20 employees, but not at mines where by only 19. Booth v. Indiana, 237 U. 8. 391, 397. Workmen’s compensation laws which apply to employers of 4 or 5 men, but not to employers of less. Jeffrey Manufacturing Co. v. Blagg, 235 U. S. 571, 576; Middleton v. Texas Power & Light Co., 249 U. 8. 152, 159; Ward & Gow v. Krinsky, 259 U. 8. 503, 516. A fire inspection law which applied to hotels with 50 or more rooms, but not to hotels with 49 or less. Miller v. Strahl, 239 U. 8. 426, 434. A law which required the licensing of physicians who during the preceding year had treated 11 or less persons, but not those who had treated 12 or more. Watson v. Maryland, 218 U. S. 173. An ordinance which prohibited the keeping of a private market within 6 squares of a public one but not within 7. Natal v. Louisiana, 139 U. 8. 621. A statute which prohibited the herding of sheep within 44 OCTOBER TERM, 1927. Brandeis, J., dissenting. 277 U. S. In Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 300, 301, the inheritance tax, in the case of strangers to the blood, exempted estates of $500, but did not allow that exemption to larger estates.2 Moreover, it prescribed 2 miles of a dwelling house, but not if a yard , or more beyond. Bacon v. Walker, 204 U. S. 311. A law which prohibited the establishment of a carbon black factory within 10 miles of an incorporated town, but not if a rod more remote. Walls v. Midland Carbon Co., 254 U. S. 300, 324. A statute permitting, in a suit against a corporation, a change of venue where it had more than 50 stockholders, but not if it had 50 or less. Cincinnati Street Ry. Co. v. Snell, 193 U. S. 30. / Statutes exempting from certain requirements banks whose transactions average $500 or more. Engel n. O’Malley, 219 U. S. 128; Dillingham n. McLaughlin, 264 U. S. 370. A tax law providing for the forfeit of »tracts of 1,000 acres or more, but which does not provide for forfeiting, under like circumstances, tracts of 999 acres or less. King n. Mullins, 171 U. S. 404, 435. A statute which fixed the number of peremptory challenges to jurors at 8, but allowed 15 in cities having a population of over 100,000 inhabitants. Hayes v. Missouri, 120 U. S. 68. Many other statutes involving the classification of cities according to population, under Which a single resident more or less may affect vitally not only the power and duties of the municipality, but the rights and liabilities of persons resident therein. Missouri n. Lewis, 101 U. S. 22; Budd n. New York, 143 U. S. 517, 548; Moeschen v. Tenement House Department, 203 U. S. 583; Northwestern Laundry Co. v. Des Moines, 239 U. S. 486, 495; Marcus Brown Co. v. Feldman, 256 U. S. 170, 198; Packard n. Banton, 264 U. S. 140, 143; Radice v. New York, 264 U. S. 292, 296: 2 Compare the statutory provisions in Arkansas, Crawford & Moses Digest, 1921, § 10221; Kansas, Revised Statutes, 1923, § 79-1501; Maryland, Bagby’s Code, 1924, § 124; Michigan, Compiled Laws, 1915, § 14525; Nebraska, Session Laws, 1923, c. 187. See In re Foils Estate, 154 Mich. 5. The more common type of statute which taxes only the amount above the exemption, e. g., Revenue Act of 1926, 44 Stat. 9, 69, likewise discriminates between different dollars. The constitutionality of such exemptions was affirmed as recently as Hope Natural Gas Co. v. Hall, 274 U. S. 284, 289. Compare Minot v. Winthrop, 162 Mass. 113; Gelsthorpe n. Furnell, 20 Mont. 299; State n Alston, 94 Tenn. 674; In re Hickok’s Estate, 78 Vt. 259. LOUISVILLE GAS CO. v. COLEMAN. 45 32 Brandeis, J., dissenting. progressive rates, rising in steps with the amount of the gift and applying to the entire gift and not merely to the excess.3 Under the law a legatee of $10,000, being subject to a 3 per cent, tax, would receive net $9,700, whereas a legatee of $10,001, being subject to a 4 per cent, tax on the entire legacy would receive net only $9,600.96. The Court held the classification reasonable, saying: “ The condition is not arbitrary because it is determined by that value [of the inheritance]; it is not unequal in operation because it does not levy the same percentage on every dollar; does not fail to treat 4 all alike under like circumstances and conditions, both in the privilege conferred and the liabilities imposed.’ The jurisdiction of courts is fixed by amounts. The right of appeal is. As was said at bar the Congress of the United States has classified the right of suitors to come into the United States courts by amounts. Regarding these alone, there is the same inequality that is urged against classification of the Illinois law. All license laws and all specific taxes have in them elements of inequality, nevertheless they are universally imposed and their legality has never been questioned.” The Court has likewise sustained a statute which imposed an ad valorem tax upon telephone companies with annual earnings of $500 or more, while exempting others similarly situated whose earnings were less than $500, Citizens Telephone Co. v. Fuller, 229 U. S. 322, 329; a statute which imposed a license fee upon “ all persons ” 3 Compare In re McKennan’s Estate, 27 S. Dak. 136, sustaining a similar provision in Laws 1905, c. 54. Even where such rates do not apply to the total amount but only to that over a certain excess, they seem to violate the standards now laid down by the Court. But since Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, and Knowlton v. Moore, 178 U. S. 41, 109, the validity of taxes of this type has no longer been open to doubt. 46 OCTOBER TERM, 1927. Brandeis, J., dissenting. 277 U. S. engaged in the laundry busines but exempted concerns employing not more than two women, and steam laundries, Quong Wing n. Kirkendall, 223 U. S. 59, 62;4 an ordinance under which a 85 tax was laid upon merchants whose gross sales were 81,000, and a tax of 810 upon those similarly situated whose sales were 81,001, Clark v. Titusville, 184 U. S. 329, 331;5 an ordinance which laid a tax of 81,000 upon theatres whose admission was 81 or more, but only 8400 upon those similarly situated whose admission prices were less than 81 and more than 50 cents, Metropolis Theatre Co. v. Chicago, 228 U. S. 61, 69-70.G In the light of these decisions, I should have supposed the validity of the classification made by the Legislature of Kentucky to be clear. Recognizing that members of 4 For statutes exempting small producers, borrowers, etc., from license taxes of various sorts, compare Florida Revised Statutes, 1920, §§ 842,843,855; Georgia Code, 1926, § 993 (115) and (124); Carroll’s Kentucky Statutes, 1922, §§ 4224, 4238; South Carolina Code, 1922, § 5188; Tennessee, Public Acts, 1923, p. 258 (mortgage registration tax); Virginia, Tax Bill, § 92^2 5 West Virginia, Acts Extraordinary Session, 1919, c. 5. See Los Angeles Gas & Electric Corporation v. Los Angeles, 163 Cal. 621, 627; Cobb v. Commissioners, 122 N. C. 307, 312; Pipe Line Co. v. Hallanan, 87 W. Va. 396. 5 For stepped taxes of this type, compare California Political Code, 1920, §§ 3376, 3379; Florida Revised Statutes, 1920, §§ 839, 850; Georgia Code, 1926, § 993 (53) and (54); Nebraska Compiled Statutes, 1922, § 681; New Hampshire Public Laws, 1926, c. 225, § 91; Oregon Laws, 1920, § 6883; Shannon’s Tennessee Code, Supp. 1926, § 712, pp. 200, 206, 208, 227, § 717; Utah Compiled Laws, 1917, § 1271, as amended by Laws, 1925, c. 112; Virginia, Tax Bill, §§ 46, 46^2, 109; Remington’s Washington Compiled Statutes, 1922, § 3841, as amended by Laws, Extra Session 1925, c. 149; Wyoming, Laws 1925, c. 117, § 1. Compare Saks v. Mayor of Birmingham, 120 Ala. 190; In re Martin, 62 Kans. 638; Gordon n. City of Louisville, 138 Ky. 442; State n. Merchants Trading Co., 114 La. 529; Wayne Mercantile Co. v. Commissioners of Mount Olive, 161 N. C. 121; Salt Lake City v. Christensen Co., 34 Utah 38. 6 Compare California Political Code, 1920, § 3380; Shannon’s Tennessee Code, Supp. 1926, § 712, pp. 214, 220. LOUISVILLE GAS CO. v. COLEMAN. 47 32 Brandeis, J, dissenting. the legislature of the State which made the classification, and members of the court which sanctioned it, necessarily possessed greater knowledge of local conditions and needs than is possible for us, I should have assumed that this classification, which obviously is not invidious, was a reasonable one, unless some facts were adduced to show that it was arbitrary. Compare Heisler v. Thomas Colliery Co., 260 U. S. 245, 255; Clarke v. Deckebach, 274 U. S. 392, 397. No such facts have been adduced by the Company. On the other hand, facts called to our attention by counsel for the Commonwealth and of which we may take judicial notice, McLean v. Denver & Rio Grande R. R. Co., 203 U. S. 38, 50; Sligh v. Kirkwood, 237 U. S. 52, 61, show that the classification was adopted by the Legislature of Kentucky in an effort to equalize the tax burden incident to loans. The mortgage recording tax is a feature of the revenue system of at least nine states.7 Its purpose in all is substantially the same—to supply an effective means for reaching this form of intangible property, which is likely to evade taxation under the general property tax. The recording tax is commonly accompanied either by a complete exemption of mortgage securities from other property taxation or, as in Kentucky, by exemption of such 7 Alabama, Acts 1903, p. 227; Kansas, Laws 1925, c. 273; Kentucky, Acts Special Session 1917, c. 11, § 9; Michigan, Acts 1911, p. 132; Minnesota, Laws 1907, c. 328, as amended by Laws 1913, c. 163, and Laws 1921, c. 445; New York, Laws 1906, c. 532, and Laws 1907, c. 340, amending Laws 1905, c. 729; Oklahoma, Session Laws 1913, p. 684; Tennessee, Acts 1923, p. 258, Acts 1925, p. 472; Virginia, Acts 1910, p. 488. See State v. Alabama Fuel & Iron Co., 188 Ala. 487; Middendorf v. Goodale, 202 Ky. 118; Union Trust Co. v. Common Council of Detroit, 170 Mich. 692; Mutual Benefit Insurance Co. v. County of Martin, 104 Minn. 179; People v. Ronner, 185 N. Y. 285; Trustees9 Insurance Corporation v. Hooton, 53 Okla. 530; Pocahontas Consolidated Collieries Co. v. Commonwealth, 113 Va. 108; Saville v. Virginia Ry. & Power Co., 114 Va. 444. 48 OCTOBER TERM, 1927. Brandeis, J., dissenting. 277U.S. securities from local taxation alone. As imposed in Alabama and New York, the states which first adopted it, the tax is levied at the same rate irrespective of the length of the loan. The obvious unfairness of such an arrangement, both to the short term borrower and to the State, has been one of the chief objections to adoption of the tax.8 Other states, impressed with the general efficiency of the tax, have attempted to eliminate the unfairness produced by the flat rate. Thus, in Oklahoma, the rates are 2 cents per $100 for loans of less than 2 years, 4 cents where the loan is for 2 years or more, 6 cents where for 3 or more, 8 cents where for 4 or more, and 10 cents where for 5 or more.9 In South Dakota, the tax was 10 cents per $100 per year or fraction thereof, with a proviso that in no event should the tax be more than 50 cents per $100.10 Such taxes obviate only in part the objection urged against the flat rate tax, namely, that mortgages for a long term are taxed, proportionally, at a lower rate than those for a short. In Minnesota, which had originally enacted the flat rate tax,11 a different expedient was devised. In 1913 it was provided that the tax should be 15 cents per $100 . unless the loan was for more than 5 8 This objection to the flat rate tax was brought to the attention of the Kentucky commission of 1916 in a brief filed on behalf of the Louisville Real Estate Board, though the Board itself favored the flat rate plan. See letter of Mr. A. E. Holcomb criticizing the New York law, p. 41; letter of Mr. George Lord criticizing the Michigan law, p. 45. See also Report of Committee of National Tax Association on Taxation of Personal Property, 1911; Report of Minnesota Tax Commission, 1908, p. 165; Robinson, The Mortgage Recording Tax, 25 Pol. Sci. Q. 609. 8 Oklahoma, Session Laws 1913, p. 684. 10 South Dakota, Session Laws 1919, c. 113, repealed by Session Laws 1923, c. 110. 11 Minnesota, Laws 1907, c. 328, LOUISVILLE GAS CO. v. COLEMAN. 49 32 Brandeis, J., dissenting. years, in which event the tax was to be 25 cents.12 In Minnesota the discrimination between long and short term securities is thus 10 cents per $100; in Kentucky it . is 20 cents. But the distinction and the reasons for it are substantially the same. The mortgage recording tax was adopted in Kentucky only after the most serious consideration. It was part of the general system of taxation enacted in 1917 after investigations by two special tax commissions appointed to enquire into the particular needs of the State. In the reports of both commissions the fact that theretofore mortgage loans had largely escaped taxation was a subject of much consideration.13 The first commission, which was appointed in 1912, submitted a preliminary report recommending an amendment to the state constitution so as to permit the classification of property for purposes of taxation and the application of different methods of taxation to different classes. The amendment proposed was submitted to the people and adopted. Kentucky Constitution, § 171. In December, 1913, the commission submitted its final report. It recommended, among other things, that mortgages, bonds and other choses in action “be taxed by a method which will bring them out of hiding ”.14 It submitted with the report a draft of a bill for the taxation of intangibles, but recommended that the bill should not be passed until the subject had received further study by another commission. The second commission filed its report in 1916. Like the first commission, it adverted to the fact that“ even in 12 Minnesota, Laws 1913, c. 163. By Laws 1921, c. 445, the line of cleavage was changed from 5 years to 5 years and 60 days. 13 Report of Kentucky Tax Commission, 1912-1914, pp. 70-97; Report of Kentucky Tax Commission, 1916, p. 6, 14 Report, 1912, p. 10. 5963°—29-------4 50 OCTOBER TERM, 1927. Brandeis, J., dissenting. 277U.S. the case of mortgages numerous ingenious and decidedly reprehensible methods are resorted to, in order that the real owner of such securities may escape his lawful portion of the burden of taxes,” and it recommended, among other things, the imposition of a mortgage recording tax.15 This was passed at an extraordinary session of the legislature called 11 for the sole purpose of considering the subject of revenue and taxation,” which remained in session from February 14 to April 25, 1917. The legislation subjected different classes of intangible property to widely varying rates and supplemented the property taxes by license fees, including the mortgage recording tax here in question. It subjected credits secured by mortgage to the annual general property tax of 40 cents per $100 for state purposes but exempted them from local taxation; imposed the mortgage recording tax; and retained a statute then in force laying a flat recording tax of 50 cents on all mortgages (except chattel mortgages for less than $200). Kentucky Statutes, Carroll’s 1922 edition, § 4238. We are told that the commission and the Legislature concluded that the taxes imposed by the several statutes would, in view of facts to be stated, approximately equalize the pro rata amount of taxes to be paid on loans secured by mortgage, taking account of the difference in the dates of maturity. In determining whether the equal treatment required by the Federal Constitution has been afforded we must, of course, consider all the statutes operating upon the subject matter. Farmers <& Mechanics Savings Bank v. Minnesota, 232 U. S. 516, 529; Interstate Busses Corporation v. Blodgett, 276 U. S. 245. In Kentucky local reasons exist for treating long term mortgage loans somewhat differently from those for a 15 Report, 1916, pp. 6, 10. In a brief submitted to the Tax Commission, the Louisville Real Estate Board had urged the enactment of a recording tax of 50 cents per $100, applicable only to mortgages of real estate. LOUISVILLE GAS CO. v. COLEMAN. 51 32 Brandeis, J., dissenting. short term. There is among those loans which are secured by mortgages of real or personal property, and hence require registration, commonly a marked difference in the character of the short term and the long term loans. Probably 90 or 95 per cent of the short term loans are evidenced by promissory notes payable to the lender. The larger part are for amounts less than $300, many of them maturing within a few months and providing for the payment of interest in advance. Another large part consists of loans secured by mortgage upon the residence of the borrower and made for domestic purposes. On the other hand, the long term loans are commonly evidenced by coupon bonds; are issued for large amounts; and represent borrowings for business purposes. The rate of interest on short term mortgage loans is generally higher than that on long term loans of equal safety, in part for the following reason. Because the short term loans are usually evidenced by promissory notes payable to the lender, the registration of the mortgage discloses the identity of the holder of the notes; and he is commonly subjected to the tax of 40 cents per $100 imposed by law upon all mortgage loans.16 Because the long term loans are commonly represented by negotiable coupon bonds and are secured by a deed of trust, registration does not disclose to the assessors who the holders of the securities are, and they frequently escape taxation thereon. Laying the mortgage recording tax only upon the long term loans tends in some measure to reduce the disadvantage under which the short term borrower labors. At what point the line should be drawn between short term and long term loans is, of course, a matter on which even men conversant with all the facts may reasonably differ. There was much difference of opinion concerning this in the Kentucky Legislature. The bill, as recom- 16 Acts Special Session, 1917, c. 11, § 1. By Acts 1924, c. 116, § 1, the rate was raised to 50 cents. 52 OCTOBER TERM, 1927. Brandeis, J., dissenting. 277 U. S. mended by the Tax Commission, and as introduced in the House, exempted from the tax here in question only such mortgages as secured indebtedness maturing within three years; and it imposed a tax of 25 cents for $100.17 In the House, the bill was amended so as to exempt loans maturing in less than five years.18 In the Senate, the House bill was amended so as to reduce the period to three years.19 The House refused to concur in the Senate amendment.20 The Senate receded;21 and thereupon the bill was passed granting the exemption of loans maturing within five years, but with the rate reduced to 20 cents.22 Thus, we know that in making this particular classification there was in fact an exercise of legislative judgment and discretion. Surely the particular classification was not such “ as to preclude [in law] the assumption that it was made in the exercise of legislative judgment and discretion.” See Stebbins v. Riley, 268 U. S. 137, 143. Whether the exercise was a wise one is not our concern. That it was permissible for Kentucky, in levying its mortgage recording tax, to take account of the probability that certain types of mortgage would escape further taxation, is not open to doubt. Watson v. State Comptroller, 254 U. S. 122, 125. There is abundant proof that the legislature was justified in thinking that the bulk of the long term loans would escape the general property tax, while most of those for a short term would not. That the statute taxes certain long term loans which, because of their similarity in other respects to those for a short term, are likely to be subjected to the state property tax, 17 Report, 1916, p. 35, House Journal, 1917 Special Session, p. 219. 18 House Journal, p. 255. 19 Senate Journal, pp. 152, 153. 20 House Journal, p. 550. 21 Senate Journal, p. 257. 22 See Senate Journal, p. 153; House Journal, pp. 645, 649-650. LOUISVILLE GAS CO. v. COLEMAN. 53 32 Brandeis, J, dissenting. would not render the statute invalid even as applied to them. Compare Citizens Telephone Co. v. Fuller, 229 U. S. 322, 332. Wherever the line might be drawn, the statute would sometimes operate unjustly. But such occasional instances of injustice would not render the classification arbitary. As was said in Metropolis Theatre Co. v. Chicago, 228 U. S. 61, 69, 70: “ The problems of government are practical ones and may justify, if they do not require, rough accommodations—illogical, it may be, and unscientific.” Moreover, the deed of trust here in question is not similar to the Kentucky mortgages maturing within five years. It is a deed of trust given by a public service corporation to secure 3150,000,000 in thirty-year 5 per cent, coupon bonds of 31,000 each, the bonds to be issued from time to time, the initial issue being 318,805,000. The equality clause would not prevent a State from confining the recording tax to deeds of trust given to secure bonds of a public service corporation. Compare Kentucky Railroad Tax Cases, 115 U. S. 321, 338; Bell’s Gap Railroad Co. n. Pennsylvania, 134 U. S. 232, 237; Pacific Express Co. v. Seibert, 142 U. S. 339, 351; American Sugar Refining Co. v. Louisiana, 179 U. S. 89, 92; Hatch v. Reardon, 204 U. S. 152, 158. The characteristics of this deed of trust clearly furnish a basis for reasonable classification as compared with probably every mortgage exempted from the recording tax. If the statute as applied does not in fact discriminate in favor of any property of a like nature, there is not inequality in treatment. A “ tax is not to be upset upon hypothetical and unreal possibilities, if it would be good upon the facts as they are.” Pullman Co. v. Knott, 235 U. S. 23, 26. See Crescent Oil Co. v. Mississippi, 257 U. S. 129, 137, 138. As Kentucky might lawfully have levied the recording tax only on deeds of trust securing bond issues like that 54 OCTOBER TERM, 1927. Syllabus. 277 U. S. here involved and as there is no showing that there exist any similar deeds of trust securing loans for less than five years, no constitutional right of the plaintiff is invaded because the statute may also include loans actually similar to those exempted except' in regard to their term, and which, because similar in fact, could not be treated differently from those exempt. Clark v. Kansas City, 176 U. S. 114, 117-118; Aluminum Co. v. Ramsey, 222 U. S. 251, 256; Murphy v. California 225 U. S. 623, 630; Darnell v. Indiana, 226 U. S. 390, 398; Mountain Timber Co. v. Washington, 243 U. S. 219, 242; Roberts & Schaefer Co. v. Emmerson, 271 U. S. 50, 54-55. One who would strike down a statute must show not only that he is affected by it, but that as applied to him, the statute exceeds the power of the State. This rule, acted upon as early as Austin v. The Aidermen, 7 Wall. 694, and definitely stated in Supervisors v. Stanley, 105 U. S. 305, 314, has been consistently followed since that time. In my opinion, it is sufficient alone to require affirmance of the judgment. Mr. Justice Holmes and Mr. Justice Stone join in this opinion. CITY OF GAINESVILLE v. BROWN-CRUMMER INVESTMENT COMPANY et al. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 433. Argued April 13, 1928.—Decided May 14, 1928. 1. Jurisdiction of the District Court on removal should appear affirmatively; it may be questioned at any stage, and its absence cannot be waived; but acquiescence may strengthen inferences from the record of facts necessary to sustain jurisdiction. P. 59. 2. A controversy between the plaintiff and a citizen of another State, as to the validity of certain warrants and their acquisition by that GAINESVILLE v. BROWN-CRUMMER CO. 55 54 Counsel for Parties. defendant as a bona fide purchaser, held separable from a controversy between the plaintiff and other defendants as to their liability as guarantors of an agreement to hold the warrants in escrow. P. 59. 3. Removal to the District Court on the ground of separable contro,-versy between citizens of different States, removes the whole suit. Jud. Code, § 28. P. 60. 20 F. (2d) 497, reversed. Certiorari, 275 U. S. 516, to a judgment of the Circuit Court of Appeals, affirming in part, and in part reversing a judgment in a suit brought by the City which was removed to the District Court by the above-named respondent, upon the ground of diversity of citizenship. The suit concerned certain warrants issued by the City, which it sought to have canceled as invalid. The removing defendant made good its claim as bona fide purchaser, and the judgment in its favor was affirmed. Two other defendants, who were residents of the State, and whom the City sought to hold as guarantors of escrow conditions under which the warrants were deposited, were also successful in the District Court; but as to them the judgment was reversed by the Circuit Court of Appeals, and the cause ordered dismissed for want of jurisdiction, that court being of the opinion that their part of the case was not removable. Mr. W. O. Davis, with whom Mr. Cecil Murphy was on the brief, for petitioner. Mr. Alex F. Weisberg, with whom Messrs. James G. Martin and Rhodes S. Baker were on the-brief, for Brown-Crummer Investment Company. Mr. H. 0, Head, with whom Messrs. F. C. Dillard and Rice Maxey were on the brief, for H. 0. Head, Executor. Mr. J. L. Parrish was on the brief for Southern Surety Company. 56 OCTOBER TERM, 1927. Opinion of the Court. 277U.S. Mr. Chief Justice Taft delivered the opinion of the V Court. This suit was begun by the City of Gainesville, Texas, in a state court of Texas against the Southern Construction Company, a partnership consisting of Harry D. Levy and Lester Levy, and against H. W. Head and the Southern Surety Company, all of whom were citizens of Texas, except the Surety Company, which was an Iowa corporation. The action grew out of a contract between the city and the Southern Construction Company for street improvements. The city issued city time warrants payable to bearer, to pay the contractor. The contract was partly executed and the improvements partly constructed. A second contract was then made by which some of the warrants were to be issued before the rest of the work was done and were to be placed in escrow to be delivered to the contracting company as the work should be completed and approved. The performance of the escrow conditions was guaranteed to the city by H. W. Head, and the Southern Surety Company of Iowa became his surety on this guaranty. There is in the record a signed stipulation of the parties descriptive of the details of the proceedings, which in part is as follows: 11 Default judgment in said cause was rendered by said court in favor of the plaintiff against all defendants for $15,000.00 and against the Southern Construction Company for $4,090, which judgment upon appeal by said Head and said Southern Surety Company was reversed by the Court of Civil Appeals for the Sixth Supreme Judicial District as to said Head and said Southern Surety Company, but was affirmed as to said Southern Construction Company. See Head n. City of Gainesville, 254 S. W. 323. Upon the remand of said cause to the District Court for Cooke County, H. O. Head, as executor, GAINESVILLE v. BROWN-CRUMMER CO. 57 54 Opinion of the Court. made himself a party in lieu of H. W. Head, who had died in the meantime, and he and the Southern Surety Company filed an answer to the petition. Thereupon, the plaintiff amended its petition making Brown-Crummer Investment Company, a Kansas corporation, a party defendant, and said Brown-Crummer Investment Company within the time allowed by law filed its petition to remove said cause to this court [i. e. the United States District Court for the Eastern District of Texas] upon the ground of a separable controversy. After a transcript of the proceedings was filed in this court, a motion to remand made by the plaintiff was overruled. All parties having repleaded in this court with the exception of the Southern Construction Company, which did not appear, it is agreed that the transcript of the proceedings in the district court as well as all abandoned pleadings may be omitted by the clerk in making out the record for the circuit court of appeals, as immaterial.” The Brown-Crummer Company was made a party by the city on the ground that it had in its possession $15,000 of the city warrants which the city did not owe because the paving contract had not been completed. The city sought to have them delivered up to be cancelled to prevent their sale to a bona fide purchaser. The Company was a dealer in municipal securities at Wichita, Kansas, and claimed to be owner as bona fide purchaser of the warrants, and when made a party sought judgment on them in this case against the city. It is upon the validity of those warrants that the chief issue in the case turns. Upon the removal of this cause from the state to the federal court, the defendant Head sought to avoid liability, on his guaranty to return $15,000 of warrants of the city, and that of his surety, the Southern Surety Company, by the contention that the warrants in question were illegally issued, void under state law and of no value. In all its petitions but the last, the city had alleged that 58 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. its warrants were valid. In its later pleading, however, it changed its attitude somewhat and pleaded in the alternative that if the court should hold the warrants void, they should as against the Brown-Crummer Company be so declared and asked that they be cancelled. Both the issue between the city and the Brown-Crummer Company on the warrants and that between the city and Head and the Iowa surety company for breach of their guaranty were tried to a jury in the district court. The court directed a verdict on the warrants in favor of the Brown-Crummer Company and gave judgment against the city for $13,125 with interest. On the claim of the city under the guaranty against Head and the Surety Company, the court directed a verdict for the defendants and gave judgment of dismissal against the city. The case was carried to the Circuit Court of Appeals of the Fifth Circuit. That court in its opinion dealt at some length with the questions whether the city warrants were valid under the state law and whether they were held by Brown-Crummer Company as a bona fide purchaser without notice of any infirmity in their origin. The Court of Appeals held the warrants legal and adjudged that the city was estopped as against the company to plead irregularities in their issue. The court therefore found no reversible error in the directed verdict in favor of the Brown-Crummer Investment Company. To that extent the judgment was affirmed. The Court of Appeals dealt with the judgment in favor of the executor, Head, and the Surety Company against the city, which the city had sought to review and seeks to review here, by remanding it to the district court with instructions to dismiss the proceedings as between the parties. Objection is first made by the petitioner that there was no separable controversy and so no jurisdiction. This question does not seem to have been presented to and was GAINESVILLE v. BROWN-CRUMMER CO. 59 54. Opinion of the Court. certainly not considered by the Circuit Court of Appeals. By the stipulation made in the federal district court below, the transcript of the proceedings in the state district court from which the removal was had, as well as all abandoned pleadings, were omitted by the clerk in making out the record for the Circuit Court of Appeals as immaterial. The petition for removal from the state court to the federal court is not shown, nor is the motion to remand. There was repleading by all the parties after the motion to remand was overruled. The stipulation, therefore, would, seem to constitute an acquiescence in the removal and indicates that the jurisdiction had been conceded by all parties, and that the question had been' abandoned until it is now renewed in the briefs in this Court. Of course a question of jurisdiction can not be waived. Jurisdiction should affirmatively appear, and the question may be raised at any time. Grace v. American Central Ins. Co., 109 U. S. 278, 283; M. C. & L. M. Railway Co. v. Swan, 111 U. S. 379, 382; Mattingly n. Northwestern Virginia Railroad Co., 158 U. S. 53, 56, 57. Yet the action of the party in acquiescing may strengthen inferences of necessary facts from the record to sustain the jurisdiction, in the absence of a showing to the contrary. It sufficiently appears here that the controversy between the Brown-Crummer Company of Kansas and the city was as to the validity of the warrants and as to the ownership by that company of them and their acquisition by that company as a bona "fide purchaser for value without notice. This was a controversy wholly between citizens of different states which could be fully determined as between them. The question of the guaranty as between the city and Head’s estate and the surety on the guaranty needed not to be considered or determined in that controversy and had no bearing on it. The jurisdiction is sufficiently clear. 60 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. A further objection is made that the Circuit Court of Appeals erred in not deciding the issue made as between the city and the executor, Head, and the Surety Company, and in remanding it with directions to dismiss it. This objection is more serious. The necessary effect of the removal on such a ground was to remove the whole suit. This brought it all before the district court and the Circuit Court of Appeals for complete disposition. By the Act of July 27, 1866 (c. 288, 14 St. 306), a defendant of a different State from that of the plaintiff was enabled to remove a separable controversy between them, leaving the plaintiff, if he so desired, to proceed in the state court against the other defendant or defendants on the other issues. But later came the Act of March 3, 1875 (c. 137, 18 St. pt. 2, p. 470) the language of which was repeated in the present section 28 of the Judicial Code, and with minor changes is now the law. (See 36 St. 1094.) It provides that “ when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit to the district court of the United States for the proper district.” In Barney N. Latham, 103 U. S. 205, 211, this Court held that in distinction from the removal provided in the Act of 1866, the Act of 1875 removed the whole case to the federal court for judgment. This conclusion was confirmed in Brooks v. Clark, 119 U. S. 502, 512, and in Torrence v. Shedd, 144 U. S. 527, 530. The rule established by these cases has never been varied or questioned. It was the duty, therefore, of the Circuit Court of Appeals to consider the other issue in this case, which it erroneously remanded to the lower court to be dismissed. We must then reverse the judgment and send the cause DUGAN v. OHIO. 61 54 Syllabus. back to the Circuit Court of Appeals for further proceedings. It may be suggested that we might consider the correctness of the judgment against the city in favor of the Brown-Crummer Company on the city warrants and decide that. We have been advised by counsel that a case involving the validity of such warrants under the state law is now pending in the Texas Supreme Court and that the Circuit Court of Appeals should have the benefit of that decision before passing on the question. Without intimating that the decision of the Texas court on the question of city warrants will be controlling under the circumstances of this case, we deem it better to remand the whole case to the Circuit Court of Appeals for further proceedings and complete disposition. Reversed. DUGAN v. OHIO. ERROR TO THE SUPREME COURT OF OHIO. No. 766. Argued April 10, 1928.—Decided May 14, 1928. Petitioner was convicted and fined by the mayor of a city for a violation of the Ohio liquor law committed within the city limits. The legislative powers of the city were exercised by a commission of five, of whom the mayor was one, and its executive powers by the commission and a manager, who was the active executive. The functions of the mayor, as such, were judicial only; his sole compensation was a salary fixed by the vote of the other commissioners, and payable out of a general fund to which the fines accumulated in his court under all laws contributed, the salary being the same whether the trials before him resulted in convictions or acquittals. Held, that the mayor’s relations to the fund and to the financial policy of the city were too remote to warrant a presumption of bias toward conviction in prosecutions before him as judge; and that objection to the conviction in this case as wanting in due process of law must be overruled. Tumey v. Ohio, 273 V, 8- 510, distinguished. P. 63. 117 Oh. St. 503, affirmed. 62 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. Error to a judgment of the Supreme Court of Ohio, sustaining petitioner’s conviction by a mayor’s court for an offense against the Ohio liquor law. Mr. F. L. Johnson, with whom Mr. Robert F. Cogswell was on the brief, for plaintiff in error. Mr. J. A. Finney, with whom Mr. Herman E. Werner was on the brief, for defendant in error. Mr. Chief Justice Taft delivered the opinion of the Court. M. J. Dugan was convicted before the Mayor’s Court of the city of Xenia, Greene County, Ohio, for the unlawful possession of intoxicating liquor under Section 6212-15 of the General Code of Ohio. The conviction was sustained by the Common Pleas Court of Greene County, Ohio, by the Court of Appeals of the same county, and by the Supreme Court of the State. The defendant has duly raised the question of the constitutional impartiality of the mayor to try the case. This is the only issue for our consideration. The objection is based on the ground that for the mayor to act in this case was a violation of the Fourteenth Amendment to the Federal Constitution, in that the mayor occupied in the city government two practically and seriously inconsistent positions, one partisan and the other judicial; that as such mayor he had power under the law to convict persons without a jury of the offense of the possession of intoxicating liquor and punish them by substantial fines, half of which were paid into the city treasury, and as a member of the city commission he had a right to vote on the appropriation and the spending of city funds; and further that while he received only a fixed salary and did not receive any fees, yet all the fees taxed and collected under his convictions were paid into the city treasury DUGAN v. OHIO. 63 61 Opinion of the Court. and were contributions to a general fund out of which his salary as mayor was payable. The defendant, in February, 1924, pleaded guilty and was fined 8400 for possessing intoxicating liquor, and thereafter was convicted and fined 81,000 for a subsequent similar offense. This is a review of the second conviction. The city of Xenia is a charter city, and has a commission form of government, with five commissioners. The charter provides that a member of the city commission shall also be mayor. The mayor has no executive, and exercises only judicial, functions. The commission exercises all the legislative power of the city, and together with the manager exercises all its executive powers. The manager is the active executive. The mayor’s salary is fixed by the votes of the members of the commission other than the mayor, he having no vote therein. He receives no fees. The offense charged here was committed within the corporate limits of the city of Xenia. Xenia is the capital of Greene County, having, according to the census of 1920, a population of 9,110. Greene County is a rural county with no larger city than Xenia. Was the mayor disqualified as judge by the Fourteenth Amendment as interpreted and applied in Tumey v. The State of Ohio, 273 U. S. 510? We think not. The Tumey case does not apply to this. Tumey was arrested and charged with unlawful possession of intoxicating liquor at White Oak, a village in Hamilton County, Ohio, on a warrant issued by the mayor of North College Hill. The latter was a village of 1,100 in the county which included the city of Cincinnati with half a million population. The counsel for the State asserted in that case that the purpose of the law in its application to the mayor of a village in large counties was to extend jurisdiction to break up places of outlawry that were located on the municipal boundary just outside of large cities; 64 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. that in some of the cities the normal enforcement agencies under the law did not perform their duty, and the jurisdiction of mayors of village courts over the whole county was conferred so that there might be some courts through which effective prosecutions for city offenders could be had; and that the system by which the fines to be collected were divided equally between the State and the village was for the proper purpose of stimulating the activities of the village officers and agents to due enforcement over the county. The council of any village might by ordinance authorize the use of half of the fines collected for the violation of the prohibition law so that by contingent commissions to attorneys, detectives, or secret service officers they could secure the enforcement of the law and very much increase the revenue of the village. The duties of the mayor of a village in Ohio like that of North College Hall were primarily executive. He was the chief conservator of the peace and directed to see that all ordinances were faithfully obeyed and enforced. He communicated to council from time to time a statement of the finances of the municipality. He supervised the conduct of all the officers of the corporation, including those engaged in prosecuting the liquor law violators. This Court in the Tumey case held that it was a violation of due process of law to make the compensation of the mayor dependent upon his conviction of defendants in this especially organized 11 liquor ” court, from which the mayor received, in addition to his salary, about $100 a month from convictions. The direct dependence of the mayor upon convictions for compensation for his services as a judge was found to be inconsistent with due process of law. As the plaintiff in error contends, however, the mayor’s individual pecuniary interest in his conviction of defendants was not the only reason in the Tumey case for hold DUGAN v. OHIO. 65 61 Opinion of the Court. ing the Fourteenth Amendment to be violated. Another was -that a defendant brought into court might with reason complain that he was not likely to get a fair trial or a fair sentence from a judge who as chief executive was responsible for the financial condition of the village, who could and did largely control the policy of setting up a liquor court in the village with attorneys, marshals and detectives under his supervision, and who by his interest as mayor might be tempted to accumulate from heavy fines a large fund by which the running expenses of a small village could be paid, improvements might be made and taxes reduced. This was thought not to be giving the defendant the benefit of due process of law. No such case is presented at the bar. The mayor of Xenia receives a salary which is not dependent on whether he convicts in any case or not.. While it is true that his salary is paid out of a fund to which fines accumulated from his court under all laws contribute, it is a general fund, and he receives a salary in any event, whether he convicts or acquits. There is no reason to infer on any showing that failure to convict in any case or cases would deprive him of or affect his fixed compensation. The mayor has himself as such no executive but only judicial duties. His relation under the Xenia charter, as one of five members of the city commission, to the fund contributed to by his fines as judge, or to the executive or financial policy of the city, is remote. We agree with the Supreme Court of Ohio in its view that the principles announced in the Tumey case do not cover this. Judgment affirmed, 5963°—29--5 66 OCTOBER TERM, 1927. Statement of the Case. 277 U. S. COMPAÑIA de NAVEGACION INTERIOR, S. A., v. FIREMAN’S FUND INSURANCE COMPANY.* CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. Nos. 510 to 520, inclusive. Argued April 19, 1928.—Decided May 14, 1928. 1. A clause in a towage contract declaring that the towing boat shall not be responsible in any way for loss or damage to the tow, does not release the former from loss or damage due to the negligence of her master or crew. P. 73. 2. For a loss thus occasioned, the insurers of the tow would be subrogated to the claim of her owner. Id. 3. The meaning of the terms “ seaworthiness ” and “ perils of the sea ” applied to contracts of marine insurance, varies with the circumstances and the exceptional features of the risk known to both parties. Pp. 75-81. 4, Where a small vessel, constructed for service as a tug on inland waters, was insured for a voyage in tow over the open sea, under policies which exacted extra-heavy premiums because of the extraordinary risks and were entered into after the underwriters had made careful examination of her seaworthiness and had become informed of her character and condition, held that the implied warranty of “ seaworthiness ” was satisfied if the vessel was as fit for the voyage as reasonably could be expected of a vessel of her type, though, owing to her construction, she was unsuited to marine navigation; and that the “perils of the sea” against which she was insured included conditions of wind and water extremely dangerous in her case though not so to ordinary sea-going vessels. Id. 19 F. (2d) 493, 496, reversed. Certiorari, 275 U. S. 518, to eleven decrees of the Circuit Court of Appeals, reversing the District Court and directing the dismissal of the libels. The suits were on policies of marine insurance covering the tugboat “ Wash *The ten other suits were by the petitioner against ten other insurance companies, severally. COMPAÑIA DE NAVEGACION v. INS. CO. 67 66 Argument for Respondents. Gray” which was lost in the Gulf of Mexico while in tow from Tampico to Galveston for a change of engines. Mr. John D. Grace with whom Messrs. M. A. Grace and Edwin H. Grace were on the brief, for petitioner. Mr. T. Catesby Jones, with whom Messrs. Henry P. Dart, Jr., Robert H. Kelley and James W. Ryan were on the brief, for respondents. No peril of the sea was encountered. There was no catastrophe, suddenly encountered, which triumphed over those safeguards by which skillful and vigilant seamen usually bring ship and cargo to port in safety. The Rosalia, 264 Fed. 285. It has long been settled that the fact of sea-water entering a vessel’s hull does not constitute in itself a peril of the sea. The Folmina, 212 U. S. 354; The Jungshoved, 290 Fed. 733. The burden was on petitioner to prove seaworthiness. Richelieu Navigation Co. n. Boston Insurance Co., 136 U. S. 408; Pacific Coast S. S. Co. v. Bancroft-Whitney Co., 94 Fed. 180. Wind and waves such as were encountered by the Wash Gray and which must be expected on a voyage, have uniformly been held not to amount to a peril of the sea. The Rosalia, 264 Fed. 285; The G. R. Booth, 171 U. S. 450; The Guiñare, 42 Fed. 861; Morse v. St. Paul Insurance Co., 124 Fed. 451; Higgie v. American Lloyds, 14 Fed. 143; The Rappahannock, 184 Fed. 291; Mr. Justice Story, in The Reeside, Fed. Case No. 11,657; Union Marine Ins. Co. v. Stone, 15 F. (2d) 937; Winter on Marine Ins., 1919 ed., p. 140; Bullard n. Roger Williams Ins. Co., 1 Curtis 148; Swan v. Union Ins. Co., 3 Wheat. 168; Donnell v. Columbian Ins. Co., 7 Fed. Cas. p. 891, Case No. 3987; Prohaska v. St. Paul Insurance Co., 270 Fed. 91; Leerdam etc., owners of S. S. Leerdam v. Mediterranean & General Traders, Inc., 17 F. (2d) 586; The 68 OCTOBER TERM, 1927. Argument for Respondents. 277 U. S. Asuarqa, 291 Fed. 73. The Tornado (Klein v. Globe & Rutgers Ins. Co., 2 F. (2d) 137), distinguished. The dictum in The Tornado, supra, that what constitutes a peril of the sea depends upon the size of the vessel insured, does not correctly state the law. Its application to facts such as are involved in the present case would lead substantially to the conclusion that a policy of marine insurance is not, as Lord Herschell says, 11 an insurance against accidents which happen, but an insurance against events which must happen.” See The Xantho, 12 App. Cas. 503; British & Foreign Ins. Co. v. Gaunt, 2 App. Cas. 41. To insure such a vessel against perils of the sea, does not amount to the underwriter warranting that she is fit to encounter perils of the sea. The only warranty in the policy of insurance is the warranty of the assured, not the warranty by the underwriter. As Lord Mersey said in Sasson v. Western Assurance Co. (1912), A. C. 561: “An insurance against the ‘ perils of the sea or other perils ’ is not a guarantee that a ship will float.” The petitioner has failed to sustain the burden of proving that the sinking of the boat resulted from one of the few specified perils insured against in these policies. Unseaworthiness of a vessel may be one or both of two things; first, a breach of the implied warranty of seaworthiness which is contained in every marine policy unless expressly excluded (Hazard n. New England Ins. Co., 8 Pet. 557); second, a cause of loss. Considered as a breach of warranty, unseaworthiness may undoubtedly be waived by the underwriter. The waiver, however, should always be expressed in writing in the policy in the clearest language. Arnould on Marine Insurance, § 686. Considered as a cause of loss, even where there is no warranty, a loss from unseaworthiness is not a peril insured against. This was specifically decided in N. 0. T. & M. R. Co. v. Union Marine Ins. Co., 286 Fed. 32. See COMPANIA DE NAVEGACION v. INS. CO. 69 66 Argument for Respondents. also Grant Smith & Co. n. Seattle Construction Co., 1920, A. C. 162. In other words, even though the underwriter admits in the policy that the vessel is seaworthy, the assured is not entitled to recover where the loss is not shown to have been caused by a peril of the sea or other of the specific perils insured against. A fortiori this must also be so when the evidence indicates that the loss was caused by unseaworthiness. It is undoubtedly true that unseaworthiness, considered as a breach of the implied warranty of seaworthiness, is a special defense which must be affirmatively pleaded and proved by the underwriters. Petitioner, however, overlooks the distinction between unseaworthiness as a breach of the implied warranty of seaworthiness, and as a possible cause of loss. If the loss was caused by unseaworthiness, the petitioner cannot recover and there is no need for the defendant underwriters to set up unseaworthiness as an affirmative defense. New Orleans, T. & M. Ry. Co. v. Union Marine Ins. Co., 286 Fed. 32; Swan v. Union Insurance Co., 3 Wheat. 168; The Lakeland, 1927, A. M. C. 1361; Richelieu Navigation Co. v. Boston Ins. Co., 136 U. S. 408; Firemen’s Fund Ins. Co. v. Globe Navigation Co., 236 Fed. 618; Coles v. Marine Ins. Co., Fed. Cases, No. 2988; Cary v. Boylston Fire Ins. Co., 107 Mass. 140; Van Vliet v. Greenwich Ins. Co., 14 Daly (N. Y.) 496. If any cause of loss is shown, it is the uninsured risk of negligent towage. Obviously, it was negligence to tow this small tug at the rate of nine miles an hour, behind a large steamer with such a short tow line. Peace River Mining* Co. v. Mui queen, 285 Fed. 102; The Mariner, 1927, A. M. C. 363; The Marie Palmer, 191 Fed. 79; The Inca, 148 Fed. 363; D. W. Ryan Towboat Co. v. Draper, 263 Fed. 31; The Manhattan, 186 Fed. 329. 70 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. The fact that the contract of towage relieved the towing vessel from all responsibility for negligence was a fact material to the risk which should have been disclosed to the underwriters, and its concealment voided the policy. The policy specifically provided that any agreement whereby any right of recovery of the assured against any vessel or person is released, decreased, transferred or lost, voided the policy. Sun Mutual Ins. Co. v. Ocean Ins. Co., 107 U. S. 485; Tate & Sons v. Hyslop, 15 Q. B. Div. 368; Phoenix Ins. Co. v. Parson, 129 N. Y. 86; The Turret Crown, 2WI Fed. 766; The Oceánica, 170 Fed. 893; Ten Eyck v. Director General, 267 Fed. 974; McWilliams v. Davis, 285 Fed. 312; Hand & Johnson Tug Line v. Canada S. S. Lines, 281 Fed. 779; British Columbia Barge Co. v. Mylroie, 259 U. S. 1; The Pacific Maru, 8 F. (2d) 166; The Sea Lion, 12 F. (2d) 124. Mr. Chief Justice Taft delivered the opinion of the Court. These are eleven libels filed in the District Court of the United States for the Eastern District of Louisiana by a Mexican corporation known as the Compañia de Navegación, against as many different insurance companies, English and American, on eleven separate policies, insuring the tug “ Wash Gray ” in favor of the libelant as owner in different sums aggregating $85,000, and covering a voyage of the tug while in tow from Tampico, Mexico, to Galveston, Texas. The tug was designed for inland waters. She was 871/2 feet long, with 19 feet beam, 9 feet depth of hold, and was of 105 tons. She was insured specially for this sea voyage, to be towed as agreed with the Insuring Companies by the “ Freeport Sulphur No. 1,” a vessel engaged in regular trade on the Gulf of Mexico, and measuring 309 feet in length, 45 feet beam, with 22% feet depth, and of approximately 3,000 tons displacement. COMPAÑIA DE NAVEGACION v. INS. CO. 71 66 Opinion of the Court. When application was made for insurance, the underwriters required an inspection for seaworthiness, general fitness and towing arrangements for that voyage. For that purpose two well known marine surveyors, representing the various underwriters, made a thorough, critical inspection, followed by recommendations for preparations for the voyage, including certain overhauling, particularly of her towing bitts and decking, and for the planking up of doors, ports, and other openings. They reported in writing to the underwriters that the requirements had been complied with, and certified her seaworthiness, and her fitness for the particular voyage. Because of the extra hazardous risk involved in the transit of this small inland vessel in tow at sea, the premiums were much increased by the underwriters. They varied, in the different policies, between one and one-half to two and one-eighth per cent., or from six to more than eight times the usual rate for a tow of the ordinary size and power to resist the sea. The voyage contemplated was first to Freeport, Texas, a distance of some four hundred and twenty miles, a trip taking some forty-five or fifty hours. From there, she was to go to Galveston by another towing vessel, also to be satisfactory to the underwriters. The weather from Tampico was fair and the sea calm. She followed nicely, handled well, and continued in tow through the first night and through the next day, making some nine miles per hour with no straining or difficulty. Ordinarily, under her own power, she was good for from ten to twelve miles per hour. During the second evening, came a fresh to strong northwesterly breeze. Later the weather grew squally, until, about 8 o’clock, the wind reached a velocity of twenty-five miles an hour, with occasional puffs or gusts. Because of these and a cross current and swell, the sea grew choppy, with waves running up four to five feet from trough to crest, and sufficient to break over her head. The rough weather and the choppy seas put a strain on 72 OCTOBER TERM, 1927. Opinion of the Court. 277 U. 8. the vessel. As required by contract, she had up all steam necessary to work her pumps. The mate was sent below’ and in a few minutes reported to the captain that the forward bitts had worked loose, that her seams were opening, and she was taking water rapidly. The pounding and straining continued until she made more water than her pumps could discharge. She was then about 100 miles from Freeport, Texas, and had completed three-fourths of the voyage to that point. The 11 Wash Gray’s ” captain signalled to the towing ship to stop. The water in the tug had rolled forward, thus bringing her head down. The tow lines were then cut. This brought her head up and she righted herself. The larger vessel stood by. The captain of the “ Wash Gray ” notified the towing captain that the tug could stand no more pulling. Shortly thereafter the captain and crew of the tug were taken aboard the ship for safety. The latter then stood by until daylight when the master sent his engineer, mate and some six men on board the tug to attempt to save her. They found no water in the boiler for steam. They attempted by a hose to pump it in, but the leaking sea water put out the fire. The vessels then proceeded slowly at one mile per hour until half past ten when the tug began to sink slowly and went down at half past eleven. The District Judge found for the owner of the “ Wash Gray ” on all the policies. The Insurance Companies appealed to the Fifth Circuit Court of Appeals, which without objecting to the facts as found by the District Court reversed the case with directions to dismiss the libels. Counsel for the Insurance Companies seek to sustain the judgment of the Circuit Court of Appeals on four grounds. They say, first, that the Insurance Companies were released from liability because there was not disclosed to them before the voyage a contract of towage, a term of which was material to the risk and was concealed and the policies were thus avoided. The towage contract provided as follows: COMPAÑIA DE NAVEGACION v. INS. CO. 73 66 Opinion of the Court. “ Freeport Sulphur No. 1 will furnish hawser. All other risk and expense to be borne by the tug. It is understood you will keep sufficient men on board to keep up steam and man the tug’s pumps. S. S. Freeport No. 1 is not responsible in any way for loss or damage to the Wash Gray.” All the policies had attached to them by rider and rubber stamp a clause like the following: “Any agreement, contract or act, past or future, positive or implied, by the Insured whereby any right of recovery of the insured against any vessel, person or corporation is released, decreased, transferred or lost, which would, on acceptance of abandonment, or payment of loss by this company, belong to this Company but for such agreement, contract or act, shall render this policy null and void as to the amount of any such loss or damage, but the Company’s right to retain or recover the full premium shall not be affected.” We do not think that the towing contract has the effect claimed for it by the companies. It did not release the “ Freeport ” from any loss or damage to the “ Wash Gray ” due to the negligence of the master or crew of the towing vessel; and for a loss thus caused the companies would be subrogated to the claim of the owner of the “Wash Gray.” The rule laid down by this Court in The Steamer Syracuse, 12 Wall. 167, 171, covers the point. That was a libel by the owner of a canal boat against the Steamer Syracuse for negligence in towing the canal boat and running her into a vessel at anchor in the harbor of New York. The claim was made that there had been a special agreement between the canal boat and the steamboat by which the canal boat was being towed at her own risk. Upon this point the Court said: “ It is unnecessary to consider the evidence relating to the alleged contract of towage, because, if it be true, as the appellant says, that, by special agreement, the canal 74 OCTOBER TERM, 1927. Opinion of the Court. 276 U. S. boat was being towed at her own risk, nevertheless the steamer is liable, if, through the negligence of those in charge of her, the canal-boat has suffered loss. Although the policy of the law has not imposed on the towing boat the obligation resting on a common carrier, it does require on the part of the persons engaged in her management, the exercise of reasonable care, caution, and maritime skill, and if these are neglected, and disaster occurs, the towing boat must be visited with the consequences.” In view of this state of the law, the towing contract here shown was not a fact material to the risk, a concealment of which from the underwriters would injure them or avoid the policy. The second objection is that the tug was negligently towed at too great a speed, proximately causing the loss. There is really very little evidence to sustain the claim that there was any negligence on the part of the towing vessel or her master or her crew. The trial court specifically found that the towing was well done, that nine miles an hour was not too fast a speed to be maintained, but that on the contrary the maintenance of such speed was necessary in order to prevent the towed vessel from turning over or careening, and there is no finding to the contrary by the Court of Appeals. The third objection is that the tug was not seaworthy and therefore the risk never attached. The finding by the trial court distinctly negatives any such claim. It said: “ Libellant’s case, upon this point, does not depend entirely on the fact that, as a condition precedent to the underwriting, the insurers required and obtained inspections, detailed recommendations of two expert marine surveyors, and a certificate of compliance with all requirements deemed by them necessary to show that the Wash Gray was seaworthy and fit, equipped and apparelled with a view to the particular voyage, in tow of the particular COMPAÑIA DE NAVEGACION v. INS. CO. 75 66 Opinion of the Court. ship Freeport, to be thence towed by another approved by them to Galveston, for the specific known purpose of general overhauling and changing her engines. There is, additionally, the oral testimony which clearly shows that these surveyors Were correct in their report and had competently functioned in making their recommendations and accepting the compliance by the owner, as per their certificate. The unwarranted assumption that the Wash Gray pulled apart, upon the contrary, as argued in the brief of respondents, is not sustained by the evidence. She did not pull apart in any particular. It is conclusively shown, and uncontradicted, that her forward bitts pulled loose because of the extraordinary straining and pounding under the stress of weather encountered. This was overcome, as the evidence shows, by the rigging of the Spanish windlass. The water which caused the sinking was shipped through her seams, from which the caulking had worked by the same cause. The only hope of overcoming this was by pumping, but pumping was inadequate.” This issue, however, brings up clearly the difference between the view of the District Court and that of the Court of Appeals in respect to liability in this case. What does “ seaworthy ” mean in the implied or expressed warranty to which the insured is to be held? Arnould on Marine Insurance, Vol. II, tenth English edition, says: “ Sec. 710. It is obvious that there can be no fixed and positive standard of seaworthiness, but that it must vary, with the varying exigencies of mercantile enterprise. £ The ship,’ said Lord Cairns, ‘ should be in a condition to encounter whatever perils of the sea a ship of that kind, and laden in that way, may be fairly expected to encounter ’ on the voyage. Steel v. State Line S. S. Co. (1877) 3 App. Cases, 72, 77. . . . “Again the class of vessel may be such as will not admit of being put into that condition of seaworthiness 76 OCTOBER TERM, 1927. Opinion of the Court. 277U.S. requisite in ordinary cases for the contemplated voyage. The effect of this is not to dispense with the implied warranty of seaworthiness, but to accommodate the warranty to what is reasonably practicable in the particular case. But the underwriter must be informed of the peculiar nature of the risk. Thus, if a steamer built for river navigation is to be sailed from this country to Calcutta or to Odessa, and the underwriter accept the risk with full information as to the class of vessel and the intended voyage, the assured is only required to make her as seaworthy for the voyage as is reasonably practicable with such a vessel by ordinary available means.” Burges v. Wickham (1863) 3 B. & S. 669; The Vortigern (1899) P. 159; Clapham v. Langton, 34 Law Journal, Q. B. 46; Turnbull v. Jenson, 3 Aspinwall W. S. 433. This view of varying seaworthiness according to the circumstances known to both parties is fully supported in the case of Thebaud v. Great Western Insurance Company, 155 N. Y. 516. There the plaintiff applied to the defendant insurance company to insure, for a voyage from Philadelphia to Frontera, Mexico, a steamer in course of construction for use on rivers and inland waters. The defendant caused the vessel to be examined by an engineer, and issued the usual marine policy, exacting, however, a double premium. The vessel proceeded part of the way on her voyage, avoiding the sea, but in reaching Mexico she had to put out to open sea and was lost. It was held that as both parties to the contract knew that the vessel was not a sea-going craft or suitable for the navigation of the high seas, and as the defendant issued its policy with full knowledge of the nature of the risk, the warranty of seaworthiness, implied in a contract of marine insurance, should not be construed in a way to be repugnant to the general purpose of the parties in COMPAÑIA DE NAVEGACION v. INS. CO. 77 66 Opinion of the Court. fact that the vessel was not so constructed as to be fit for a sea voyage. See 4 Joyce on Insurance, § 2159. In Klein v. Globe & Rutgers Insurance Company, 2 F. (2d) 137, decided by the Circuit Court of Appeals of the Third Circuit, the policy covered an upper river steamboat for a voyage down the Mississippi River to New Orleans, and from there in tow down the river and across the Gulf to Tampico, for which a higher premium than usual was paid. She was bulkheaded and otherwise prepared under the supervision of the agents of the insurance company for her voyage to Tampico. She was inspected and found to be thoroughly all right at the mouth of the Mississippi River, but after she was being towed in the Gulf, an examination disclosed considerable water in the hold and thereafter the vessel sank. It was held that the implied warranty of the insured was that the boat was seaworthy to the extent of being able to withstand all the ordinary perils of navigation of the upper river and that the perils of the sea in the Gulf, against which she was insured, were such perils as would be extraordinary to a vessel of her type. Judgment was given for the insured. Again, in the Farmers’ Feed Company n. Insurance Company of North America, 166 Fed. Ill, affirming the District Court for the Southern District of New York, 162 Fed. 379, the defendant insurance company, knowing the age and exact condition of a barge, insured her for operation in waters adjacent to New York at a high premium. The loss occurred by reason of wind and tide near Brooklyn Bridge, and the defense was unseaworthiness. The Second Circuit Court of Appeals said: “ The Mackey was undoubtedly very old and somewhat decayed, but her condition, her history and all the facts regarding her were fully known to the company at the time the policy was executed, a written record stating 78 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. all the particulars being on file with the company. The underwriters knew that she was not a desirable risk, they knew they were taking more than an ordinary hazard and they guarded themselves against it by charging more than the ordinary premium. The theater of the Mackey’s operations was, by the express terms of the policy, confined to the waters adjacent to New York, practically New York harbor. The ordinary perils of the sea were not intended, but only such perils as were to be encountered in the comparatively quiet waters referred to. The question of seaworthiness must be considered in the light of the service required. . . .” The fourth objection claimed by the respondents is that no recovery could be had because the loss of the “ Wash Gray ” was not caused by any peril insured against. These policies all contained a clause like the following: “ It is the intent of this insurance company by this policy to fully indemnify the insured against the adventures and perils of the harbors, bays, sounds, seas, rivers and other waters above named.” It is urged by the Insurance Companies that weather when the wind did not exceed a velocity of twenty-five miles, though with squalls, and with a cross current and swell producing a choppy sea with waves five feet high and breaking over the head of the vessel, did not constitute a peril of the sea. There was some emphasis too placed by counsel for the companies on the log of the “ Sulphur No. 1 ” in which the state of the weather and of the sea seemed to be minimized. Upon this point the trial court finds it to be unreliable because the entries in the log do not seem to have been made at the times of the observations they record and moreover the entries were made from the standpoint of a vessel of 3,000 tons, and not one of a vessel of the size of the “ Wash Gray.” The court said: COMPAÑIA DE NAVEGACION v. INS. CO. 79 66 Opinion of the Court. “ What amounts to a light breeze, or a small swell, or a choppy sea, as logged for a large ocean-going steel vessel, would be relatively, if logged for a little inland wooden tug, with two or three feet of freeboard, an extremely dangerous gale and rough sea. The first would ride comfortably, safely and easily, while the other would toss and pound furiously, strain her timbers, lose the caulking of her butts and seams, and so contrast the comparative calm for one to the comparative fury for the other. The oral testimony, however, makes such speculation and refinement unnecessary, since it convincingly shows that for the ‘ Wash Gray ’ in the open Gulf, the wind and the condition of the sea were extremely perilous; that both the towing ship, its officers and crew and the crew of the little tug omitted nothing that good seamanship, skill and prudence would indicate.” But it is contended on behalf of the insurance companies that the phrase “ perils of the sea ” has not a varying but an absolute meaning, and they rely on the language of Mr. Justice Story in the Reeside, 20 Federal Cases, No. 11,657, p. 458 (2 Sumn. 567), quoted and approved in Garrison v. Memphis Insurance Company, 19 How. 312. In the former case the question was whether great damage to bales of carpeting by absorbing oil which had leaked from a number of casks, said to have been improperly stowed, was occasioned by the perils of the sea and the extraordinary rolling of the schooner during the voyage. Justice Story said: 11 The phrase 1 danger of the seas,’ whether understood in its most limited sense, aS importing only a loss by the natural accidents peculiar to that element; or whether understood in its more extended sense, as including inevitable accidents upon that element, must still, in either case, be clearly understood to include such losses as are of extraordinary nature, or arise, from some irresistible 80 OCTOBER TERM, 1927. Opinion of the Court. 277 U. 8. force, or some overwhelming power, which can not be guarded against by the ordinary exertions of human skill and prudence.” But we think the definition of “ dangers of the sea ” by Justice Story was meant by him to be applied in the ordinary case of a sea-going vessel with no special circumstances as to the exceptional character of the vessel known to both parties and recognized by both in a high premium charged and paid. A contract of maritime insurance is usually not different from any other contract except that the words and phrases used may have a technical nautical meaning to be understood by the parties and enforced accordingly. We have seen however from the cases that the term “ seaworthiness ” varies with the circumstances and the exceptional features of the risk known to both parties. The view of the Circuit Court of Appeals that “ perils of the sea ” has an absolute meaning and may not be varied by the knowledge of the parties as to the circumstances and must be maintained stiffly in favor of the insurance companies and against the insured, is not necessary or reasonable. The variation in the significance of “ seaworthy,” as shown by the above authorities, when caused by exceptional circumstances known to both parties, applies as well to the meaning of perils of the sea as to that of seaworthiness. The two terms in such cases are correlative terms. Klein v. Globe & Rutgers Insurance Co., 2 F. (2d) 137,139, 140. The Circuit Court of Appeals distinguished Klein n. Globe & Rutgers Insurance Company, The Farmers' Feed Company n. The Insurance Company and Thebaud v. Great Western Insurance Company, and 4 Joyce on Insurance, Section 2159, as follows: “ Recovery was allowed in each of those cases on the actual contract which was held to be different from the contract evidenced by the insurance policy. It was merely GAINES v. WASHINGTON. 81 66 Syllabus., held that effect should be given to the actual contract. The facts in this case do not warrant the conclusion that appellant bound itself by its conduct or by any agreement to accept the risk of unseaworthiness.” We find ourselves unable to follow this distinction. In all these cases the recovery was on the contract, and the question was of the construction of the contract. Its construction was affected necessarily by the special circumstances surrounding the contract known to both parties and, acted on by them in charging and paying an increased compensation for the risk run. The circumstances in this case are very like those shown in the cases cited. They certainly justify the conclusion to which we have come. The judgment of the Circuit Court of Appeals is reversed. GAINES v. WASHINGTON. ERROR TO THE SUPREME COURT OF WASHINGTON. No. 841. Submitted April 23, 1928.—Decided May 14, 1928. 1. Writ of error does not lie to a judgment of a state court when the validity of a federal treaty or statute, or of a state statute on the ground of repugnancy to the federal Constitution, treaties or laws, was not drawn in question. Jud. Code, § 237 (a). P. 83. 2. The Sixth Amendment does not apply to a state criminal prosecution. P. 85. 3. The question whether exclusion of the public from a murder trial is against due process of law, is not presented by a record showing only an oral order or announcement of the trial judge that the public would be excluded beginning the next day, which was not carried out. P. 86. 4. Criminal prosecutions in the state courts may be by information instead of indictment. Id. 5. Objection to an information for murder as violating due process because filed pending an investigation by the coroner and because the district attorney was in a “ rage ” are frivolous. P. 87. 5963°—29—6 82 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. 6. The contention that defendant was not present or that he could not hear the evidence at his trial for murder, cannot be entertained on affidavits filed after the State Supreme Court had affirmed his conviction. P. 87. 7. A record in a murder trial showing by daily entries all parties and counsel present is sufficient proof of attendance by the defendant. Id. 8. Where criminal cases are brought here from state courts on frivi-lous objections, mandate will be ordered issued forthwith on dismissal of writ of error, or denial of certiorari. Id. Writ of Error to 144 Wash. 446, dismissed. Certiorari denied. Error to a judgment of the Supreme Court of Washington sustaining a conviction for murder. Messrs. W. P. Guthrie, G. E. M. Pratt, and Howard T. Ballard were on the brief for plaintiff in error. Mr. Ewing D. Colvin was on the brief for defendant in error. Mr. Chief Justice Taft delivered the opinion of the Court. The defendant was charged by information with the crime of murder in the first degree in the Superior Court of King County in the State of Washington. The trial resulted in a verdict of guilty as charged and a finding by the jury that the death penalty should be inflicted. Motions for a new trial and in arrest of judgment were made and overruled, and the judgment was entered upon the verdict. The defendant appealed to the Supreme Court of the State. That court, after a consideration of the errors claimed to have been committed on the trial, affirmed the judgment and sentence. Final judgment was entered January 18, 1928. On February 6, 1928, a petition for a writ of error from this Court was presented to the Chief GAINES v. WASHINGTON. 83 81 Opinion of the Court. Justice of the Supreme Court of the State. He allowed the writ and it was accordingly issued. In accordance with our practice, the Clerk brought to the attention of the Court the fact that this was a criminal case and was, therefore, to be expedited. An examination of the assignments of error and the record disclosed that the writ of error was improvidently allowed. The only law under which such a writ of error would lie was Section 237(a) of the Judicial Code, as amended by the Act of February 13,1925 (c. 229, 43 Stat. 936, 937), which reads as follows: “A final judgment or decree in any suit in the highest court of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of the United States, and the decision is against its validity; or where there is drawn in question the validity of a statute of any State, on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of its validity, may be reviewed by the Supreme Court upon a writ of error.” The record and the assignments of error do not show that there was here drawn in question the validity of a treaty or statute of the United States, or the validity of a statute of the State of Washington on the ground of its being repugnant to the Constitution, treaties or laws of the United States. It followed that the writ of error would have to be dismissed. Thereupon the Court entered, March 19, 1928, a rule against the plaintiff in error, Wallace C. Gaines, to show cause before this Court on April 23rd, why, treating the writ of error inadvertently allowed in this cause as a petition for writ of certiorari herein, certiorari should not be denied for lack of a substantial federal question in the record giving, this Court jurisdiction. The order to show cause was issued in view of Section 237(c) of the Code of Judicial Procedure, as amended by 84 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. the Act of February 13, 1925 (c. 229, 43 Stat. 936, 938). That paragraph is as follows: “ If a writ of error be improvidently sought and allowed under this section in a case where the proper mode of invoking a review is by a petition for certiorari, this alone shall not be a ground for dismissal; but the papers whereon the writ of error was allowed shall be regarded and acted on as a petition for certiorari and as if duly presented to the Supreme Court at the time they were presented to the court or judge by whom the writ of error was allowed: Provided, That where in such a case there appears to be no reasonable ground for granting a petition for certiorari it shall be competent for the Supreme Court to adjudge to the respondent reasonable damages for his delay, and single or double costs, as provided in section 1010 of the Revised Statutes.” In obedience to the rule, the petitioner, Wallace C. Gaines, has filed a return in which he avers that the first federal question upon which he asks a writ of certiorari . arises because of the action of the trial judge, as shown by the record as follows: “At the close of the afternoon session on the ninth day of the trial, to wit, August 11th, Judge Jones, the trial judge, said: “ Before adjourning, I will state that the atmosphere is pretty unbearable. I know the jury must also feel it. I assume there is a certain part of the members of the Bar who from the standpoint of students desire to hear the testimony, but with those exceptions, court officers and members of the Bar, the general1 public will be excluded beginning tomorrow.” This action, the return alleges, was a violation of the Sixth Amendment to the Constitution of the United States, and of the due process clause of the Fourteenth Amendment to the same Constitution, and that this error GAINES v. WASHINGTON. 85 81 Opinion of the Court. was duly urged in the trial court and the State Supreme Court, on both grounds. The Sixth Amendment to the Constitution provides in part that “ In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed.” Many state constitutions contain a substantially similiar guaranty and restriction. The question what constitutes a public trial the right to which is thus guaranteed and what discretion a court may exercise in limiting the audience and spectators is one upon which the cases differ. Two views are given in Reagan v. United States, 202 Fed. 488 and Davis v. United States, 247 Fed. 394, in both of which many state cases are cited. According to some of them, the order complained of here would be regarded as erroneous, while in others it would be held to be within the judicial discretion of the court. But we are relieved from considering or reconciling the different views taken in these cases by the fact that the Sixth Amendment to the Federal Constitution does not apply to the trial of criminal prosecutions by a State. It has been well settled for years that the first ten Amendments apply only to the procedure and trial of causes in the federal courts and are not limitations upon those in state courts. Spies v. Illinois, 123 U. S. 131,166, and cases cited. It is contended, however, that due process of law exacted in the Fourteenth Amendment in causes tried in state courts must be construed as equivalent to the Sixth Amendment in federal trials. The question has not arisen in any case cited to us. It would involve a consideration of whether due process requires more than a trial that is not private or secret, or whether due process would not be satisfied except by such a restriction upon the discretion of the court in regulating attendance as the defend 86 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. ant here insists upon and as is held in some of the authorities cited above in enforcing the Sixth Amendment and similar constitutional provisions of an affirmative character. But we need not pass on that question now. For even if the due process clause requires the same kind of public trial as that contended for by the petitioner, the record does not disclose facts which would justify us in bringing the case before us for our review. The order of the court complained of was oral only. No formal order was entered, neither was there a minute entry nor a specific mention to any particular officer to see that it was executed so far as the record discloses. The State before the Supreme Court contended that the order to exclude the general public was never executed. This was an issue of fact before both Washington courts. After the fullest examination of affidavits filed by both sides upon the motion for a new trial the State Supreme Court’s conclusion was as follows: “Believing that the statement of the Court was not carried out but that the general public were admitted to the courtroom to the extent of its seating capacity during the trial, the rights of the appellant as guaranteed by the constitution of this state and by the Fourteenth Amendment to the Constitution of the United States were not invaded.” From an examination of the record, we find no reason for rejecting this conclusion of fact reached by the unanimous judgment of that court. Another question raised on behalf of the defendant concerns the filing of the information for murder by the prosecuting attorney. Prosecution by information instead of by indictment is provided for by the laws of Washington. This is not a violation of the Federal Constitution. Hurtado v. California, 110 U. S. 516. Some objection is made to the filing of the information because made pend- GAINES v. WASHINGTON. 87 81 Opinion of the Court. ing the investigation by the coroner and because the prosecuting attorney was in “ a rage.” The law of Washington prescribes no connection between the two inquiries. The objection is frivolous. Then it is contended that the defendant was not personally present or was not in a place where he could hear the evidence. There is nothing in the record of the proceedings of the trial to support such a claim. No objection or exception was taken during the trial on this ground. It is based on affidavits filed in the case after the State Supreme Court had affirmed the conviction. This was much too late. Frank n. Mangum, 237 U. S. 309, 340. A contention is also made that the presence of defendant at all times at the trial was not affirmatively shown by the record. The record was not well made up, but it contains daily entries showing 11 all parties and counsel present ” during the trial. This certainly complies with due process of law required by the Fourteenth Amendment. All the other objections said to involve federal questions are equally frivolous. Nothing in the record warrants us in granting a writ of certiorari. It has not been the practice of the Court to write opinions and state its reasons for denying writs of certiorari, and this opinion is not to be regarded as indicating an intention to adopt that practice, but in view of the fact that the Court has deemed it wise to initiate a practice for speedily disposing of criminal cases in which there is no real basis for jurisdiction in this Court, it was thought proper to make an exception here, not to be repeated, and write an opinion. The character of the case is such that we should proceed under Rule 31, as amended May 2, 1927 (274 U. S. 766), and shorten the time for issuing the mandate as provided therein and order that the mandate and notice of the rul- 88 OCTOBER TERM, 1927. Argument for Ferry. 277 U. S. ing herein be issued forthwith to the Supreme Court of the State of Washington for further proceeding. The order will be entered dismissing the writ of error and denying the application for a certiorari. Writ of error dismissed. Certiorari denied. FERRY v. RAMSEY et al. HARRIS, EXECUTOR, v. RAMSEY et al. ERROR TO THE SUPREME COURT OF KANSAS. Nos. 407 to 418, inclusive. Argued April 25, 1928.—Decided May 14, 1928. 1. A state statute making a bank director individually liable for deposits, the receipt of which by the bank was assented to by him with knowledge that it was insolvent, and which provides that his failure to examine the bank’s affairs to learn of its condition shall charge him with knowledge of its insolvency, and that in suits against him for such deposits the fact of insolvency when the deposits were received shall be prima facie evidence that the director both knew of the insolvency and assented to the deposits— held consistent with due process of law. P. 94. 2. The statute might have made directors liable to depositors in every case. By accepting the office, they assume the risks it imposes. Id. 122 Kans. 675, 691, affirmed. Error to judgments of the Supreme Court of Kansas, affirming recoveries against a director, and the executor of a deceased director, of a bank, in twelve suits by depositors. Messrs. J. B. McKay and L. J. Bond were on the brief for Ferry. Want of knowledge being a defense, the defendant in an action of this kind has the right to prove want of knowledge, and the effect of the statute creating against the officer a conclusive presumption of knowledge, is to FERRY v. RAMSEY. 89 88 Argument for Ferry. deprive the officer of property without due process of law. 12 C. J., p. 1233; 6 R. C. L., 462; Railway Co. v. Simonson, 64 Kans. 802; Petersilie v. McLachlin, 80 Kans. 176; McFarland v. American Sugar Co., 241 U. S. 79; Shelle-barger Elevator Co. v. III. Cent. R. Co., 278 Ill. 333. The statute attempts to establish rules of evidence under which the depositor may prove his case against the directors. It does not enact a rule of substantive law. To give the statute the effect which the Kansas Court announces, the statute would have to read that every director shall be liable to depositors if he fails to make an examination of the bank. The liability is based upon assent after knowledge of insolvency, and the conclusive presumption raised is a method provided for proving knowledge. Conceding for the moment the power of the legislature to establish a rule of absolute liability upon the part of a director who failed to examine, it is plain that the legislature had no intention of so doing. What the legislature did intend was to make it easier for the depositor to prove his case. Schlesinger v. Wisconsin, 270 U. S. 230. And the legislature cannot impose upon a director liability on the ground that he would have had knowledge of the true condition of the bank had he made an examination, when the fact is such examination would not have disclosed the condition of the bank. If the statute be treated as a rule of substantive law, it at the most imposes a civil liability to compensate the depositors for loss resulting from the failure of the director to perform the duty imposed by the statute, to examine the bank. Such a statute would be unconstitutional because of being unreasonable and arbitrary in placing such a liability upon the directors without regard to whether such neglect of duty to examine occasioned the loss or not. If an examination into the affairs of the bank would not have shown its true condition, then to 90 OCTOBER TERM, 1927. Argument for Ferry. 277U.S. award compensatory damages to the depositors because of the failure to examine, is to take the property of the directors without due process of law, because their neglect had no causal relation to the injury. 29 Cyc., 439; Hodgson N. Dexter, 12 Fed. Cas. 6565, affirmed, 1 Cranch 345. The statute very positively creates not a 11 mere prima facie presumption,” but a conclusive presumption against a director who does not examine. Section 9-164 is, we contend, also violative of the Fourteenth Amendment, but for a somewhat different reason. It is the rule as stated* in many of the authorities, that even a prima facie presumption cannot be created where there is no rational or logical connection between the fact upon which the presumption is to rest and the fact to be proved. The existence of the established fact must reasonably tend to raise an inference of the main fact. Now how can it be said that the fact that a bank is insolvent reasonably tends to raise an inference that its officers assented to its receiving deposits? Ordinarily courts do not assume that persons intend to violate the law. McFarland v. American Sugar Co., 241 U. S. 79. The statute here provides that proof of insolvency shall constitute prima facie evidence not only of knowledge, but of assent. Therefore, inasmuch as assent is based in part upon knowledge, the statute provides for a presumption upon a presumption. One presumption cannot be based on another presumption. Railroad Co. v. Baumgartner, 74 Kans. 148; United States v. Ross, 92 U. S. 281; Manning n. John Hancock Ins. Co., 100 U. S. 693; Cunard Co. v. Kelley, 126 Fed. 610; 10 R. C. L., 870; Duncan v. Railroad, 82 Kans. 230. To provide that knowledge and assent are to be presumed from insolvency is to say that proof of insolvency presumes knowledge, and from this presumption of knowledge, assent is presumed. This cannot be legally done. Simpkins v. State, 249 Pac. 168. FERRY v. RAMSEY. 91 88 Argument for Harris. Mr. S. M. Brewster, with whom Messrs. John L. Hunt and Bruce A. Campbell were on the brief, for Harris. Section 9-164, Revised Statutes of Kansas, is unconstitutional as a violation of the Fourteenth Amendment, because it seeks to create a prima fade presumption of assent by proof of a fact entirely unrelated to the main fact sought to be established. Railway Co. v. Turnipseed, 219 U. S. 35; Hawes v. Georgia, 285 U. S. 1; Manning v. John Hancock Ins. Co., 100 U. S. 693; Luria v. United States, 231 U. S. 9; McFarland n. American Sugar Co., 241 U. S. 79; Bailey v. Alabama, 219 U. S. 219. And because it deprives plaintiff in error and his decedent’s estate of property without due process of law by creating a presumption which is based upon a presumption. 5 C. J. 811; Welch v. Sackett, 12 Wis. 243; Jewell v. Jewell, 84 Me. 304; Hanscom v. Home Ins. Co., 92 Me. 333; Patterson v. Stewart, 41 Minn. 84; 22 C. J. 84; Railroad Co. v. Baumgartner, 74 Kans. 148; United States v. Ross, 92 U. S. 281; Manning v. John Hancock Ins. Co., 100 U. S. 693; Cunard Steamship Co. v. Kelley, 126 Fed. 610; Duncan v. Railroad Co., 82 Kans. 230; 10 R. C. L. 870. Section 9-163 violated the Fourteenth Amendment in that it required the decedent to do the impossible, and because it creates a conclusive presumption of knowledge on account of failure to examine the bank. Bailey v. Alabama, 219 U. S. 219; Cooley, Const. Lim., 5th ed., p. 453; Choctaw 0. & G. R. Co. v. Harrison, 235 U. S. 292; Galveston H. & S. A. R. Co. v. Texas, 210 U. S. 217; L. & N. Ry. Co. v. Melton, 218 U. S. 36; Luria v. United States, 231 U. S. 9; Milheim et al. v. Moffatt Tunnel Dist., 262 U. S. 710; Meyer v. Borland, 39 Minn. 438; McFarland n. American Sugar Co., 241 U. S. 79; Orient Ins. Co. v. Daggs, 172 U. S. 557; Railroad Co. v. Simonson, 64 Kans. 802; Railway Co. v. Payne, 83 Ark. 816; Railway Co. v. Parks, 32 Ark. 131; Railway Co. v. Turnipseed, 219 U. S. 35; Schlesinger v. Wisconsin, 270 U. S. 92 OCTOBER TERM, 1927. Argument for the Depositors. 277 U. S. 230; Vega S. S. Co. v. Elevator Co., 75 Minn. 308; Yee Hem v. United States, 260 U. S. 178; Ziegler v. Railroad Co., 58 Ala. 599. Mr. Karl M. Geddes, with whom Messrs. John J. Jones and B. R. Leydig were on the brief, for defendants in error. The statutes are an exercise of the police power and do not contravene the Fourteenth Amendment. Noble State Bank v. Haskell, 219 U. S. 108; Id. 571; Whitman v. Nat’l Bank, 176 U. S. 559; Jones Nat’l Bank v. Yates, 240 U. S. 541. The right to conduct business in the form of a corporation, is a creature of law, and a State in authorizing corporations to carry on business may qualify the privilege by imposing such conditions as reasonably may be deemed expedient. L. & N. R. R. Co. v. Melton, 218 U. S. 36; Missouri ex rel. Herwitz n. North et al., 271 U. S. 40; Zucht v. King et al., 260 U. S. 174; Hess v. Pawloski, 274 U. S. 352; Buck v. Bell, 274 U. S. 200; Village of Euclid v. Ambler Realty Co., 272 U. S. 465; Tinsley v. Anderson, 171 U. S. 101; Wiliams v. Eggleston, 170 U. S. 304; Western Turf Ass’n y. Greenburg, 204 U. S. 359; Magoun v. Illinois Savings Bank, 170 U. S. 294; Orient Ins. Co. v. Daggs, 172 U. S. 557; Minnesota Iron Co. n. Kline, 199 U. S. 593; Railway Co. v. Matthews, 165 U. S. 1; Barbier v. Connolly, 113 U. S. 27; Whitman v. Nat’l Bank, 176 U. S. 559; Prudential Ins. Co. v. Cheek, 257 U. S. 530. When a litigant has had full opportunity in the state courts to present his defense, there has been a full compliance with the Fourteenth Amendment, and he has not been denied due process of law. The presumption of fact specified in the Kansas law, is not violative of any provision of the Fourteenth Amendment. A State may declare proof of one fact pre- FERRY v. RAMSEY. 93 88 Opinion of the Court. sumptive evidence of another if there is rational connection between them. James-Dickinson Mortgage Co. v. Harry, 273 U. S. 119; Hawes n. Georgia, 258 U. S. 1. Mr. Justice Holmes delivered the opinion of the Court. These writs of error are brought by Ferry, formerly a director of the Butler County State Bank, of Kansas, and by the executor of a deceased director, to set aside judgments against them in suits by depositors in the bank, on the ground that the statutes of Kansas purporting to establish the directors’ liability were contrary to the Fourteenth Amendment of the Constitution of the United States. The statutes were upheld by the State Court. 122 Kans. 675. Ibid. 691. The plaintiffs, (the defendants in error,) made deposits in the bank at a time when it was insolvent but had not closed its doors. The statutes under which the directors were held liable to depositors and which are attacked here are Revised Statutes of Kansas, 1923, Chapter 9, 163, 164. The former of these makes it unlawful for any director to assent to the reception of deposits by his bank after he shall have had knowledge of the fact that it is insolvent. The law makes it the duty of the directors to examine into the affairs of the bank, and, if possible, to know its condition, and in case of his failure to do as required, he is to be held to have had knowledge of the insolvency of the bank, and is made ‘individually responsible for such deposits so received.’ By 9-164, in suits for deposits against officers “ the fact that such banking institution was so insolvent or in failing circumstances at the time of the reception of the deposit charged to have been so received . . . shall be prima facie evidence of such knowledge and assent to such deposit ... on the part of such officer . . . so charged therewith.” It is said that 163 denies due pro- 94 OCTOBER TERM, 1927. Opinion of the Court. 277U.S. cess of law by creating a conclusive presumption of knowledge from ignorance and by implying that the director knowingly assented to a deposit that he should not have received, of which in fact he knew nothing. As to 164 it is said that facts are made prima facie evidence of other facts that they have no rational tendency to prove. The law as construed by the Supreme Court of Kansas meets its severest test in the cases against the executor of Kramer, because Kramer, although not so ignorant or incapable of knowledge as thought by the Court of first instance, was seriously ill at the time of the deposits and seemed to have much to be said in his behalf, if the actual state of his knowledge had any relevancy as an excuse. It is said that the liability is founded by the statute upon the directors’ assent to the deposit and that when this is the ground the assent cannot be proved by artificial presumptions that have no warrant from experience.. But the short answer is that the statute might have made the directors personally liable to depositors in every case, if it had been so minded, and that if it had purported to do so, whoever accepted the office would assume the risk. The- statute in short imposed a liability that was less than might have been imposed, and that being so, the thing to be considered is the result reached, not the possibly inartificial or clumsy way of reaching it. If without any mention of assent or presumptions or prima facie evidence the statute had said: ‘ Every director of a bank shall be personally liable to depositors for every deposit accepted by the bank after it has become insolvent,’ all objections would be met by the answer, ‘You took the office on those terms.’ The statute would be none the worse if it allowed a defence in the single case of the defendants having made an honest examination and having been led to believe that the bank was solvent. The mention of assent and evidence of knowledge cannot be pressed to conclusions that the statute manifestly does FERRY v. RAMSEY. 95 88 Sutherland, Butler, and Sanford, JJ., dissenting. not allow. The conclusions that, as construed by the State Court, it does impose, it imposes however much it may cut down the significance of the assent or knowledge to which it refers. As a matter of law there is nothing new in charging a party with knowledge of what it is his duty to know, in this case the insolvency of the bank, or with assent to deposits that he must expect while the bank’s doors remain open. But the essential thing is that, whether in a roundabout or a perfectly natural way, the statute has said if you take the office you must take the consequences of knowledge whether you have it or not. In most contracts men take the risk of events over which they have imperfect or no control. The acceptance of a directorship is as voluntary an act as a contract. The Supreme Court of Kansas affirmed judgments against Ferry and reversed judgments in favor of the executor of Kramer based on Kramer’s incapacity to know of or assent to the deposits in question and ordered judgments against him. In so doing it violated no provision of the Constitution of the United States. Judgments affirmed. Mr. Justice Sutherland, dissenting. In respect of the prima facie presumption created by § 9-164 of the Kansas statute, I am unable to agree with the opinion of the Court insofar as that section affects the cases against Harris, Executor of the Will of Kramer, deceased. The evidence shows very clearly that, at the time the deposits in question were made and for a long time prior thereto, Kramer was physically incapable of investigating and ascertaining the condition of the bank, or of assenting to the reception of deposits by the bank, because of his serious illness which resulted in his death after undergoing a major surgical operation. It was substantially so found by the jury in one of the cases and by the trial court in the others. Under these circumstances, 96 OCTOBER TERM, 1927. Sutherland, Butler, and Sanford, JJ., dissenting. 277 U. S. the application of the statutory presumption was obviously injurious. Section 9-163 provides that it shall be unlawful for any president, director, etc., to assent to the reception of deposits, etc., after he shall have had knowledge of the fact that the bank is insolvent. Section 9-164, which creates the objectionable presumption, provides that “ the fact that such banking institution was so insolvent or in failing circumstances at the time of the reception of the deposit charged to have been so received . . . shall be prima facie evidence of such ... assent to such deposit ... on the part of such officer . . .” Of course, the state may provide that proof of one fact shall be prima facie evidence of another; but this can be done consistently with the due process of law clause of the Fourteenth Amendment only where there is a rational relation between the twb facts. Bailey v. Alabama, 219 U. S. 219, 238; McFarland v. American Sugar Co., 241 U. S. 79, 86. In the latter case this Court said, quoting from Mobile, J. & K. C. R. R. v. Turnipseed, 219 U. S. 35, 43: “ It is * essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate.’ ” To me it seems clear that there is no rational relation between the fact of insolvency and the fact here presumed, namely, assent to the reception of a particular deposit. Rather, the rational presumption is the other way, since the law itself requires that an insolvent bank shall not receive deposits; and the assent of the director thereto would be an assent to a violation of law. I d,o not quarrel with the suggestion that it was within the constitutional power of the state to create an absolute liability against a director if, while insolvent, the bank of which he is a director receive a deposit. But this the state did not do. LARSON CO. v. WRIGLEY CO. 97 88 Syllabus. Instead, it adopted a statute creating a liability only in case the director assents to the deposit; and I should have supposed the liability of the director must be measured by what the state has enacted and not by what it had the power to enact. Under such a statute, without more, it is perfectly plain that proof by the state of such assent would be necessary. But here the state by legislative fiat substituted for such proof on its part the prima facie presumption set forth. It was said that the bank was open and doing business and that it is a reasonable presumption from that fact that assent was given to the receipt of particular deposits. But we are dealing with a specific statutory provision and must take it as we find it; and by that provision the general transaction of business by the bank at the time it received the particular deposits is not made the basis of the statutory presumption. If it were, a different question would be presented. Under these circumstances, as it seems to me, the rule, requiring a rational connection between the fact proved and the ultimate fact to be presumed therefrom, plainly applies; and consequently the statutory provision in question is void. Mr. Justice Butler and Mr. Justice Sanford concur in this opinion. L. P. LARSON, JR., COMPANY v. WM. WRIGLEY, JR., COMPANY CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 603. Argued April 26, 1928.—Decided May 14, 1928. Upon an accounting of net profits derived from sales of goods in packages simulating those of a competitor, the defendant, if the infringement was conscious and deliberate, is not entitled to deduct the federal income and excess profits taxes, P, 99, 20 F. (2d) 830, reversed, 5963°—29------7 98 OCTOBER TERM, 1927. Argument for Respondent. 277U.S. Certiorari, 275 U.’S. 521, to a decree of the Circuit Court of Appeals, approving in the main, but remanding for the making of certain deductions, a decree of the District Court for net profits on an accounting in a suit for unfair competition. The only question upon which certiorari was allowed, was whether federal income and excess profits taxes should be deducted. See also 253 Fed. 914; 275 Id. 535; 5 F. (2d) 731, 739; 248 U. S. 580. Messrs. Charles A. Aldrich and George I. Haight, with whom Messrs. Chester D. Kern, Ralph L. Peck, and Charles R. Aldrich were on the brief, for petitioner. The remedy of the Wrigley Company for the recovery of taxes paid by it is provided by statute and this remedy is exclusive. The action of the Court of Appeals deprives petitioner of its opportunity to use the special remedies provided by Congress in its system of corrective justice. It is opposed to the statute, the rules and regulations thereunder, and to the holdings of this court. Income and excess profits taxes are an excise tax upon respondent’s doing of corporate business and are not deductible under principles of equitable accounting in determining the profits awarded petitioner. The action of the Circuit Court of Appeals in deducting the excess profits and income taxes paid by respondent on account of the infringing business, will result in a wrongful double taxation of petitioner, and is otherwise unconscionable and contrary to well-established legal principles. Mr. Isaac H. Mayer, with whom Mr. Wallace R. Lane was on the brief, for respondent. In ascertaining the net profits of an infringer, the federal income and excess profits taxes paid by him are deductible like any other expense necessarily incurred in the conduct of the infringing business. Galveston Electric Co. v. Galveston, 258 U. S. 388; Sly Mfg. Co. v. Pang- LARSON CO. v. WRIGLEY CO. 99 97 Opinion of the Court. born Corp’n, 276 Fed. 971, affirmed, 284 Fed. 217; Mac-Beth-Evans Glass Co. v. Smith Glass Co., 23 F. (2d) 459; Ransome Machinery Co. v. Moody, 282 Fed. 29; Neeson v. Sangamon County Mining Co., 316 Ill. 397; Kaufman v. Bowers, 11 F. (2d) 662; Malleable Iron Range Co. n. United States, 62 Ct. Cis. 425, certiorari granted, 273 U. S. 688. Respondent should be allowed to deduct the amount of federal taxes which it actually paid on the infringing profits. Mr. Justice Holmes delivered the opinion of the Court. There has been long litigation between the parties in this suit, the last stage of which appears in 20 F. (2d) 830. The Wrigley Company was ordered to account for net profits on sales of its * Doublemint ’ gum in a package dress that infringed the Larson Company’s 1 Wintermint ’ gum package. During the accounting, questions arose that were decided by the Circuit Court of Appeals. To review one of these questions a writ of certiorari was granted by this Court. That question is whether, as held below with modifications that need not be mentioned, the Wrigley Company should be allowed to deduct the federal income and excess profits taxes from the profits with which it is to be charged. No doubt there are cases in which such a deduction would be proper. But the question cannot be answered by the merely formal reply that if the Larson Company chooses to make the Wrigley Company its agent or trustee ex maleficio and to demand the profits made by the agent it must take the burden with the benefit and can have no more than the agent made in fact. To call the infringer an agent or trustee is not to state a fact but merely to indicate a mode of approach and an imperfect analogy by which the wrongdoer will be made to hand over the pro- 100 OCTOBER TERM, 1927. Syllabus. 277 U.S. ceeds of his wrong. Circumstances will affect the conclusion, including in them the knowledge and the conduct of the party charged. It would be unjust to charge an infringer with the gross amount of his sales without allowing him for the materials and labor that were necessary to produce the things sold, but it does not follow that he should be allowed what he paid for the chance to do what he knew that he had no right to do. That is the position of the Wrigley Company as we understand the findings in the successive stages of this suit. 253 Fed. Rep. 914, 916. 275 Fed. Rep. 535, 537, 538. 5 F. (2d) 731, 739. 20 F. (2d) 830, 831. Even if the only relief that the Wrigley Company can get is a deduction from gross income when the amount of its liability is finally determined, the Larson Company will have to pay a tax on the Wrigley profits when it receives them, and in a case of what has been found to have been one of conscious and deliberate wrongdoing, we think it just that the further deduction should not be allowed. Decree as to allowance of federal taxes reversed. KING MANUFACTURING COMPANY v. CITY COUNCIL OF AUGUSTA et al. ERROR TO THE SUPREME COURT OF GEORGIA. No. 392. Argued March 12, 1928.—Decided May 14, 1928. 1. In § 237 (a) of the Judicial Code, as amended by Act of February 13, 1925, which gives this Court jurisdiction to review the judgments of state courts of last resort in any case “ where is drawn in question the validity of a statute of any State on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity,” the words “ statute of any State ” are used in their larger sense, including every act, legislative in character, to which the State gives its sanction, no distinction being made between acts of the state legislature and other exertions of the State’s law-making power. P. 102. KING MFG. CO. v. AUGUSTA. 101 100 Opinion of the Court. 2. An ordinance of a city fixing rates for water power supplied from a canal owned and maintained by the city, is a “ statute ” of the State in this sense. P. 114. 3. In cases where contract obligations are said to have been impaired by subsequent legislation, contrary to the constitutional restriction, the findings of state courts as to the existence and obligations of the contract are entitled to respect but do not bind this Court. Id. 164 Ga. 306, affirmed. Error to a judgment of the Supreme Court of Georgia sustaining the dismissal of a suit by the petitioner to enjoin the enforcement of a city ordinance fixing rates for water power. Mr. Bryan Cumming for plaintiff in error. Mr. E. H. Callaway, with whom Mr. Archibald Blackshear, City Attorney, was on the brief, for defendants in error. Mr. Justice Van Devanter delivered the opinion of the Court. This is a suit brought in a state court in Georgia to restrain the enforcement of an ordinance of the City of Augusta fixing rates for water power supplied from a canal owned and maintained by the city. The plaintiff is a manufacturing company which operates a mill adjacent to the canal with water power supplied therefrom. The objection urged against the ordinance is that it is repugnant to the contract clause of the Constitution of the United States, and therefore invalid, in that it impairs the obligation of a prior contract whereby the city undertook to supply water power for the plaintiff’s mill in perpetuity at a lower rate than that fixed in the ordinance. The court of first instance held the ordinance valid and accordingly dismissed the suit. This was affirmed by the Supreme Court of the State, 164 Ga. 306; and the case is 102 OCTOBER TERM, 1927. Opinion of the Court. 277U.S. here on writ of error allowed by the Chief Justice of that court. Counsel on both sides treat the case as one which rightly may be brought to this Court on writ of error, but some members of the Court doubt that it is such a case. Therefore this question will be given immediate consideration. The jurisdiction of this Court to review on writ of error judgments or decrees of state courts of last resort is defined by § 237(a) of the Judicial Code, as set forth in the amendatory act of February 13, 1925, c. 229, 43 Stat. 936. As there defined this jurisdiction extends to two classes of cases— (1) “where is drawn in question the validity of a treaty or statute of the United States, and the decision is against its validity;” (2) “where is drawn in question the validity of a statute of any State on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity.” Plainly the present case is not within the first provision. Is it within the second? This depends on the sense in which the words “ a statute of any State ” are used therein. If they are used as narrowly comprehending only an enactment of the state legislature, the case is excluded; but if they are used as broadly comprehending any legislation proceeding from the law-making agencies of the State, the case is included. In usage “ statute ” is a term which has both a restricted and a broad signification. This is reflected in the following excerpt from Bouvier’s Law Dictionary, Rawle’s Revision: “ Statute. A law established by the act of the legislative power. An act of the legislature. The written will of the legislature, solemnly expressed according to the forms necessary to constitute it the law of the state. KING MFG. CO. v. AUGUSTA. 103 100 Opinion of the Court. “ This word is used to designate the written law in contradistinction to the unwritten law. “Among the civilians, the term statute is generally applied to laws and regulations of every sort; every provision of law which ordains, permits or prohibits anything is designated a statute, without considering from what source it arises.” The Constitution of the United States does not use the term “ statute,” but it does employ the term “ law,” often regarded as an equivalent, to describe an exertion of legislative power. Thus it is declared that a bill presented in either house of Congress, if receiving prescribed favorable consideration, shall “ become a law,” Art. I, § 7; that Congress may “ make all laws ” necessary and proper for carrying into execution various enumerated powers, Art. I, § 8, cl. 18; that no State “shall pass ” any “ex post facto law or law impairing the obligation of contracts,” Art. I, § 10, cl. 1; that no State “ shall make or enforce any law ” abridging the privileges or immunities of citizens of the United States, Fourteenth Amendment, § 1; that the Constitution, “laws” and treaties of the United States shall be the supreme law of the land and the judges in every State shall be bound thereby, anything in the Constitution or “ laws ” of any State to the contrary notwithstanding, Art. 6, cl. 2, and that the judicial power of the United States shall extend, among others, to all cases in law and equity arising under the Constitution, “ laws ” and treaties of the United States, Art. 3, § 2. It of course rests with each State to determine in what form and by what agencies its legislative power may be exerted. It may legislate little or much in its constitution, may permit the electorate to make laws by direct vote, may entrust its legislature with wide law-making functions and may delegate legislative authority to subordinate agencies, such as municipal councils and state com 104 OCTOBER TERM, 1927. Opinion of the Court. 277U.S. missions. But whether this power be exerted in one form or another, or by one agency or another, the enactments put forth, whether called constitutional provisions, laws, ordinances or orders, are in essence legislative acts of the State; they express its will and have no force otherwise. As respects their validity under the Constitution of the United States all are on the same plane. If they contravene the restraints which that instrument places on the legislative power of a State they are invalid, no matter what their form or by what agency put forth; for, as this Court has said, the protection which these restraints afford applies, “ whatever the form in which the legislative power is exerted; that is, whether it be by a constitution, an act of the legislature, or an act of any subordinate instrumentality of the State exercising delegated legislative authority, like an ordinance of a municipality or an order of a commission.” Standard Scale Company v. Farrell, 249 U. S. 571, 577. The jurisdictional provision we are considering is designed to be in aid of such protection. It proceeds on the theory that through inadvertence or design those who are entrusted with the legislative power of a State may exer-. cise the same in a manner forbidden by the Constitution of the United States, and that the state courts may uphold such legislation when it should be held invalid. Unlike other state action, legislation consists of rules having continuing force and intended to be observed and applied in the future; and this regardless of the state agency from which it proceeds. Were the question an open one, these considerations would afford impelling reasons for holding that the jurisdictional provision uses the words “ a statute of any State ” in their larger sense and is not intended to make a distinction between acts of a state legislature and other exertions of the State’s law-making power, but rather to include every act legislative in character to which the KING MFG. CO. v. AUGUSTA. 105 100 Opinion of the Court. State gives its sanction. But the question is not an open one; it heretofore has been resolved in keeping with the view just indicated. The jurisdictional provision originally was part of § 25 of the act of September 24, 1789, c. 20, 1 Stat. 73, 85, which authorized this Court to review on writ of error judgments and decrees of state courts of last resort in cases— (1) “ where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; ” (2) “ where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of such their validity; ” (3) “ where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under, the United States, and the decision is against the title, right, privilege or commission specially set up or claimed by either party under such clause of said Constitution, treaty, statute or commission.” By the act of February 5, 1867, c. 28, 14 Stat. 385, that section was reenacted—the first and second provisions without change and the third to read as follows: (3) “where any title, right, privilege or immunity is claimed under the Constitution, or any treaty or statute of, or commission held, or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commission, or authority.” The three provisions—the third as so amended—were carried into § 709 of the Revised Statutes of 1873 and into § 237 of the Judicial Code of 1911. By the act of September 6,1916, c. 448, 39 Stat. 726, the third provision was 106 OCTOBER TERM, 1927. Opinion of the Court. 277U.S. eliminated so far as a review on writ of error is concerned; and by the act of February 13, 1925, supra, the first and second provisions were amended by omitting from both the words “ or an authority exercised under ” and with that change were reenacted in § 237(a). In order that the second provision—the material one in this case—and the change made therein may be accurately in mind we now quote the provision in both its original and its amended form— [Act 1789] “ where is drawn in question the validity of a statute of, or an authority exercised under, any State on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the States, and the decision is in favor of its validity.” [Act 1925] “ Where is drawn in question the validity of a statute of any State on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity.” It will be seen that the phrase “ a statute of any State ” has been in the provision from the time of its original enactment, and that this phrase was retained in the reenactment of 1925 without change or qualification. So, its meaning before the reenactment is its meaning now. Before coming to decided cases which we deem relevant it is well to refer to some which, although cited as in point, appear to us not to be so. Weston v. Charleston, 2 Pet. 449 and Home Insurance Company v. Augusta, 93 U. S. 116, are examples. The first is a case where a tax ordinance of Charleston was sustained by the state court over the objection that it was in conflict with the Constitution of the United States. This Court’s jurisdiction was invoked, and was by it sustained, p. 463, on the ground that the city’s action in adopting the ordinance was the “ exercise of an authority ” under the State. Whether the ordinance was a statute of the State was not considered. The other case also involved a municipal KING MFG. CO. v. AUGUSTA. 107 100 Opinion of the Court. ordinance which the state court had upheld against the contention that it was in conflict with the contract clause of the Constitution. This Court took jurisdiction, p, 121, on the grounds (a) that the validity of an authority exercised under the State was in question and (b) that a right claimed under the Constitution was denied. There was no negation of other grounds. Williams v. Bru fly, 96 U. S. 176, is the first case in which the phrase “ a statute of any State ” in the jurisdictional provision was considered and construed. There a debt arising on contract and owing by a citizen of "Virginia to citizens of Pennsylvania had been sequestrated during the Civil War under an enactment of the Confederate States and collected from the debtor by that Government. After the war the creditors brought a suit against the debtor’s administrator in a state court in Virginia to collect the debt. The defendant interposed pleas setting up the sequestration and collection under the confederate enactment. Judgment went for the defendant on these pleas over the plaintiffs’ objection that the confederate enactment was invalid under the Constitution; and the Supreme Court of Appeals sustained that ruling. The case was brought to this Court on writ of error, its jurisdiction being invoked on the grounds that the case was one (a) where the validity of both a statute of the State and an authority under the State was drawn in question as repugnant to the Constitution and was sustained, and (b) where a right, privilege and immunity claimed under the Constitution was denied. The jurisdiction was contested, but was sustained expressly on “ both ” grounds in a considered opinion by Mr. Justice Field, speaking for entire Court. In sustaining the first ground he said pp. 182-183: a The pleas aver that a confederation was formed by Virginia and other States, called the Confederate States of America, and that under a law of this confederation, 108 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. enforced in Virginia, the debt due to the plaintiffs was sequestrated. Now, the Constitution of the United States prohibits any treaty, alliance, or confederation by one State with another. The organization whose enactment is pleaded cannot, therefore, be regarded in this Court as having any legal existence. It follows that whatever efficacy the enactment possessed in Virginia must be attributed to the sanction given to it by that State. Any enactment from whatever source originating, to which a State gives the force of law is a statute of the State, within the meaning of the clause cited relating to the jurisdiction of this Court. It would be a narrow construction to limit the term to such enactments as have gone through various stages of consideration by the legislature. There may be many acts authorized by the constitution of a State, or by the convention that framed it, which have not been submitted to the consideration of its legislature, yet have all the efficacy of laws. By the only authority which can be recognized as having any legal existence, that is, the State of Virginia, this act of the unauthorized confederation was enforced as a law of the Commonwealth. Its validity was drawn in question on the ground that it was repugnant to the Constitution of the United States; and the decision of the court below was in favor of its validity.” Ford v. Surget, 97 U. S. 594, is much like the case just cited. The plaintiff sued in a state court in Mississippi to recover for cotton belonging to him which the defendant had destroyed in that State during the Civil War in obedience to an enactment of the Confederate States. By special pleas the defendant set up that enactment in justification of the trespass; and the plaintiff insisted by demurrers that the enactment was contrary to the Constitution. The demurrers were overruled and judgment was given for the defendant, which the Supreme Court affirmed. The case was brought to this Court by KING MFG. CO. v. AUGUSTA. 109 100 Opinion of the Court. writ of error. The jurisdiction, although contested, was sustained in an opinion of Mr. Justice Harlan. He quoted with approval the above extract from Williams n. Bruffy, and added, p. 603: “ The general orders of the state court overruling the demurrers must be accepted, in every essential sense, as an adjudication in favor of the validity of an act of the confederate congress, recognized and enforced as law in Mississippi, and which act, according to the rule laid down in that case, must be, therefore, regarded by us as a statute of that State, within the meaning of the provisions of the act declaring the appellate jurisdiction of this court. It results that we have power to review the final judgment of the Supreme Court of Mississippi.” Stevens v. Griffith, 111 U. S. 48, is a case where the Supreme Court of Tennessee had given effect to an enactment of the Confederate States. This Court there said, after reciting its ruling in Williams v. Bruffy, p. 51: “ So, in this case the Confederate enactment, under which the confiscation of the money was had, can be treated only as a statute of Tennessee, by whose sanction it was enforced as a law of that State.” New Orleans Waterworks Co. v. Louisiana Sugar Refining Co., 125 U. S. 18, is a case wherein this Court was asked on writ of error to review a judgment of the Supreme Court of Louisiana giving effect to an ordinance of New Orleans against the contention that it impaired the obligation of a contract. The opinion was by Mr. Justice Gray. After stating that, to be within the contract clause of the Constitution, the impairment must be “ by a law of the State,” and that this Court “ has no jurisdiction to review a judgment of the highest court of a State, on the ground that the obligation of a contract has been impaired, unless some legislative act of the State has been upheld by the judgment sought to be reviewed,” and after quoting with approval the statement 110 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S in Williams v. Bruffy—“Any enactment, from whatever source originating, to which a State gives the force of law, is a statute of the State, within the meaning of the clause cited relating to the jurisdiction of this Court,” he said, p. 31: “ So a by-law or ordinance of a municipal corporation may be such an exercise of legislative power delegated by the legislature to the corporation as a political subdivision of the State, having all the force of law within the limits of the municipality, that it may properly be considered as a law, within the meaning of this article of the Constitution of the United States.” In North American Storage Co. v. Chicago, 211 U. S. 306, which came to this Court from a Circuit Court of the United States, the question was presented whether a municipal ordinance was state action within the clause in the Fourteenth Amendment prohibiting “ any State ” from denying due process or equal protection. The Court said, p. 313: “ In this case the ordinance in question is to be regarded as in effect a statute of the State, adopted under a power granted by the state legislature, and hence it is an act of the State within the Fourteenth Amendment.” The construction which was put on the phrase “ a statute of any State ” in the jurisdictional provision by the decisions in Williams v. Bruffy, Ford v. Surget and Stevens v. Griffith did not stop with those cases, but has been approvingly followed and applied in later cases. In Atlantic Coast Line R. R. Co. v. Goldsboro, 232 U. S. 548, this Court was asked to review on writ of error a judgment of the Supreme Court of North Carolina giving effect to a municipal ordinance over the objection that it was invalid under the Constitution of the United States. Mr. Justice Pitney, speaking for the entire court, sustained its jurisdiction and on that point said, p. 555: KING MFG. CO. v. AUGUSTA. Ill 100 Opinion of the Court. “A municipal by-law or ordinance, enacted by virtue of power for that purpose delegated by the legislature of the State, is a state law within the meaning of the Federal Constitution. [Citing cases.] “And any enactment, from whatever source originating, to which a State gives the force of law, is a statute of the State, within the meaning of the pertinent clause of § 709, Rev. Stat.; Judicial Code, § 237; which confers jurisdiction on this court. Williams v. Bruffy, 96 U. S. 176, 183.” Reinman v. Little Rock, 237 U. S. 171, came here from the Supreme Court of Arkansas on writ of error. The sole question involved was the validity of a municipal ordinance which the state court had sustained against the objection that it was in conflict with the Constitution of the United States. Mr. Justice Pitney again speaking for the entire court said, p. 176: “ The decision of the state court of last resort is conclusive upon the point that the ordinance under consideration is within the scope of the powers conferred by the state legislature upon the city council of Little Rock. It must therefore be treated, for the purposes of our jurisdiction, as an act of legislation proceeding from the law-making power of the State; for a municipal ordinance passed under authority delegated by the legislature is a state law within the meaning of the Federal Constitution; and any enactment, from whatever source originating, to which a State gives the force of law, is a statute of the State within the meaning of Judicial Code, § 237, which confers jurisdiction upon this court. Atlantic Coast Line v. Goldsboro, 232 U. S. 548, 555, and cases cited.” Zucht v. King, 260 U. S. 174, was brought here on writ of error solely on the ground that the state court had upheld a municipal ordinance against the contention that 112 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. it was invalid under the Constitution of the United States. This Court dealt with the initial question of jurisdiction as follows, p. 176: “ The validity of the ordinances under the Federal Constitution was drawn in question by objections properly taken below. A city ordinance is a law of the State within the meaning of § 237 of the Judicial Code as amended, which provides a review by writ of error where the validity of a law is sustained by the highest court of the State in which a decision in the suit could be had. Atlantic Coast Line R. R. Co. v. Goldsboro, 232 U. S. 548, 555.” Further applying the ruling in Williams v. Bruffy this Court repeatedly has held that an order of a state commission made in the exercise of delegated legislative authority is a statute of the State in the sense of the jurisdictional provision. Excerpts from some of the cases—all brought here from state courts on writs of error—will suffice to show the course of decision. “ Such an order, being legislative in its nature and made by an instrumentality of the State, is a state law within the meaning of the Constitution of United States and the laws of Congress regulating our jurisdiction.” Lake Erie & Western R. R. Co. v. Public Utilities Commission, 249 U. S. 422, 424. “ The validity of the order prescribing the rates was directly challenged on constitutional grounds, and it was held valid by the highest court of the State. The prescribing of rates is a legislative act. The commission is an instrumentality of the State, exercising delegated powers. Its order is of the same force as would be a like enactment by the legislature. If, as alleged, the prescribed rates are confiscatory, the order is void. Plaintiff in error is entitled to bring the case here on writ of error and to have that question decided by this Court. The motion to dismiss will be denied.” Bluefield Waterworks & Improvement Co. v, Public Service Commission, 262 KING MFG. CO. v. AUGUSTA. 113 100 Opinion of the Court. U. S. 679, 683, specifically followed and applied in Northern Pacific Ry. Co. v. Department of Public Works, 268 U. S. 39, 42. “ The cause is here upon writ of error. Considering the circumstances disclosed by the record we have no jurisdiction unless it affirmatively appears that in the court below there was duly drawn in question the validity of a statute or an authority exercised under the State because of repugnance to the Constitution, treaties or laws of the United States. Jud. Code, § 237, as amended Sept. 6, 1916. Under repeated rulings here, for jurisdictional purposes the order of the Commission must be treated as though an Act of the Legislature.” Live Oak Water Users Ass’n v. R. R. Commission, 269 U. S. 354, 356. “ The authority of the Dock Commissioner and the Sinking Fund trustees, under the Act of 1871 [they exercised delegated legislative power], is such as to make the plan and the refusal equivalent to a statute of the State, and, assuming that it is in conflict with the grant and covenants of relators’ deeds, it is a law of the State impairing a contract obligation under § 10, Article I, of the Federal Constitution. [Citing New Orleans Waterworks Co. v. Louisiana Sugar Refining Co., 125 U. S. 18; Williams v. Bruffy, 96 U. S. 176, 183; and other cases.] We have jurisdiction of the writ of error under § 237 of the Judicial Code.” Appelby v. Delaney, 271 U. S. 403, 409. A like view of an order, legislative in nature, of a state commission has been taken in other related cases. Grand Trunk Western Ry. Co. v. Railroad Commission, 221 U. S. 400, 403; Louisville and Nashville R. R. Co. v. Garrett, 231 U. S., 298, 318; Arkadelphia Milling Co. v. St. Louis Southwestern Ry. Co., 249 U. S. 134, 141; Oklahoma Natural Gas Co. v. Russell, 261 U. S. 290, 292. In no case has the phrase “ a statute of any State ” in the jurisdictional provision been construed otherwise than as shown in the foregoing review. With its use else-5963°—29-----8 114 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. where—especially in connections indicative of its use in a different sense—we are not now concerned. It is said that the act of February 13, 1925, which amended the jurisdictional provision was enacted with the purpose of contracting the obligatory jurisdiction of this Court. We recognize that there was such a purpose and that effect should be given to it. But the act dealt with several jurisdictional provisions, including those relating to cases coming to this Court from the Circuit Courts of Appeals, the District Courts, the Court of Appeals of the District of Columbia and the Court of Claims. It shows that the purpose was to cut down and change our jurisdiction in particular respects and to leave it as before in others. We are concerned here with a particular jurisdiction, as to which there was no cutting down or change. The terms whereby it was defined in the original provision were retained, and thus it was left as before. We accordingly hold.that the ordinance in question is a statute of the State within the meaning of the jurisdictional provision, and therefore that this case is rightly here on writ of error.* So we turn to the merits. The adoption and terms of the ordinance are not in dispute. Nor is it questioned that the city became obligated long before the ordinance to supply water power from its canal for the plaintiff’s mill. But it is questioned that there was any engagement for a designated price or rate in perpetuity. Both courts below found for the city on this point. That finding is entitled to respect, but is not conclusive; for it rests with this Court in cases like this, where contract obligations are said to have been impaired by subsequent legislation contrary to the constitutional restriction, to determine whether there was a contract and what obligations arose from it. St. Paul Gas Light Com- * Followed in Sprout v. South Bend and Nectow v. Cambridge, decided this day, post, pp. 163, 183. KING MFG. CO. v. AUGUSTA. 115 100 Brandeis and Holmes, JJ., dissenting. pany v. St. Paul, 181 U. S. 142,147; Appleby v. New York, 271 U. S. 364, 379-380. It is admitted that there was here no formal contract. But it is insisted that a contract arose from conversations and correspondence between representatives of the plaintiff and officers of the city, and that it included an engagement for a designated price or rate in perpetuity. The proofs have been considered. It would serve no purpose to review them in this opinion. We think they fall short of showing any engagement respecting the rate, other than that it was to be the established rate for users in general. The rate had been fixed by ordinance when the plaintiff obtained the right to have water power supplied to its mill, but there was, as we construe the proofs, no engagement that that rate should continue indefinitely. The city may be under a duty to supply the power at a reasonable rate [See Millers v. Augusta, 63 Ga. 772], but that question is not in this case. The plaintiff’s objection is confined to the asserted impairment of a prior contract. Judgment affirmed. Mr. Justice Brandeis (with whom Mr. Justice Holmes concurs), dissenting. I think that the writ of error should be dismissed. The judgment below was entered after the effective date of the Act of February 13, 1925, c. 229, 43 Stat. 936, 937, 942. That Act struck from § 237 of the Judicial Code the words “ or an authority exercised under any State.”1 The section as so amended limits the right of review by writ of error to cases where the highest court of a State has denied the validity of a treaty or statute of the United States, or has affirmed the validity of a statute of a State, challenged as repugnant to the Constitution, treaties, or laws of the 1 The Act of 1925 also struck out the words “ or an authority exercised under the United States.” 116 OCTOBER TERM, 1927. Brandeis and Holmes, JJ., dissenting. 277 U. S. United States. Other cases can be reviewed only if this Court, in the exercise of its discretion, grants a writ of certiorari. Here the challenge was to the validity of an ordinance of a city. I cannot believe that if Congress had intended to maintain our jurisdiction to review judgments sustaining such ordinances on writ of error, it would not have found clearer language in which to express its purpose. The question before us is the interpretation, not of the word “ laws,” used in the Constitution, but the narrower term “ statute,” employed in the Judiciary Act of 1789, c. 20, § 25, 1 Stat. 73, 85. And our task is to construe, not the single word 11 statute,” but the phrase “ statute of any State.” Laws or regulations adopted by a municipality are called, in common speech, either ordinances or bylaws, not 11 statutes.” 2 In some connections, rules established by an institution are referred to as statutes. Thus, the rules adopted by a university or its founder are sometimes spoken of as statutes of the university. But no one would call them statutes of the State under whose law the university is incorporated. Nor would any one, in refer- 2 These are the terms employed' in the charters of American cities and towns both before and since the adoption of the Constitution. They have been continuously employed apparently by all text-writers on municipal corporations and government. “ Local laws of a municipal corporation, duly enacted by the proper authorities, prescribing general, uniform and permanent rules of conduct, relating to the corporate affairs of the municipality, are, in this country, generally designated as ordinances. ‘ By-laws ’ or ‘ bye-laws ’ was the original designation.” McQuillin, Municipal Ordinances, § 1; 2 McQuillin, Municipal Corporations, § 632. “ The result of legislative action by a municipal council or assembly is a local law usually denominated an ordinance.” 2 Abbott, Municipal Corporations, § 514. See also Dillon, Municipal Corporations, 1 ed., p. 270; Munro, Municipal Government and Administration, p. 209; Reed, Municipal Govern-’ ment, p. 173. No instance has been found where such writers have used the word “ statutes ” in referring to municipal ordinances, KING MFG. CO. v. AUGUSTA. 117 100 Brandeis and Holmes, JJ., dissenting. ring to the laws or regulations adopted by municipal or other corporations, speak of them as “ statutes of the State.” Has the phrase as originally used in § 25 of the Judiciary Act of September 4, 1789, c. 20, 1 Stat. 73, 85, and as reenacted in § 2 of the Act of February 5, 1867, c. 28, 14 Stat. 385, 386, in § 709 of the Revised Statutes, in § 237 of the Judicial Code, and finally in the Act of 1925, acquired a different, conventional, meaning so that it must be held to include municipal ordinances? Our jurisdiction to review a judgment of a state court sustaining the validity of a municipal ordinance alleged to be repugnant to the Federal Constitution, was first invoked in Weston v. City Council of Charleston, 2 Pet. 449, 463-464. Section 25 of the Judiciary Act of 1789, which was then in force without amendment, authorized a review by writ of error in any case “ where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission.” The jurisdiction having been questioned, because of the nature of the proceeding, Mr. Chief Justice Marshall took occasion to specify the clause of § 25 on which he conceived the jurisdiction to rest: “ In this case the city ordinance of Charleston is the exercise of an ‘authority under the State of South Carolina,’ ‘ the validity of which has been drawn in question on the ground of its being repugnant to the constitution,’ and ‘ the decision is in favor of its validity ’.” 118 OCTOBER TERM, 1927. Brandeis and Holmes, JJ., dissenting. 277 U. S. The jurisdiction then declared was exercised, without question, in the cases involving municipal ordinances that came before the Court during the next half century.3 In 1876 the subject was carefully reconsidered in Home Insurance Co. v. City Council of Augusta, 93 U. S. 116, 121. After stating the possible bases of jurisdiction under § 709 of the Revised Statutes, the Court said: “ Here there was drawn in question the authority exercised by the city council under the State in passing the ordinance imposing the tax complained of. The question raised was as to its repugnancy to the Constitution of the United States; and the decision was in favor of the validity of the authority so exercised. A right was also claimed •under the Constitution of the United States. The decision was adverse to the claim. The case is, therefore, within two of the categories we have stated. The jurisdictional objection cannot be maintained.” The Court would hardly have omitted to say that review might also have been had by virtue of the “ statute ” clause if it had been of opinion that a municipal ordinance could be properly so described. The second of the categories mentioned in Home Insurance Co. v. City Council of Augusta, was eliminated, so far as the right to review by writ of error was concerned, by the Act of September 6, 1916, c. 448, § 2, 39 Stat. 726. In cases where the showing was merely that a title, right, privilege or immunity guaranteed by the Constitution had been claimed and denied, that Act provided that there could be no review except by certiorari. But as it left unchanged the clause regarding the validity of an authority, on which Mr. Chief Justice Marshall had based the power of this Court to review judgments sustaining municipal ordinances, our jurisdiction over such judgments remained unaffected. When, in 1925, the “ authority ” clause was 3 Waring v. The Mayor, 8 Wall. 110; Woodruff n. Parham, 8 Wall. 123; Osborne n. Mobile, 16 Wall. 479; Cannon v. New Orleans, 20 Wall. 577. Compare Barron v. Baltimore, 7 Pet. 243, 245-246. KING MFG. CO. v. AUGUSTA. 119 100 Brandeis and Holmes, JJ., dissenting. struck from § 237 of the Judicial Code and our jurisdiction on writ of error under that section was limited to cases involving the validity of a statute, Congress cannot have been unaware of the difference, for jurisdictional purposes, between a statute of a State and a municipal ordinance. For attention had been called to the difference by numerous decisions under several jurisdictional acts—the most recent being of wide public interest. The Act of June 18, 1910, c. 309, 36 Stat. 539, 557, § 17 of which was embodied in the Judicial Code as § 266, declared that “ no interlocutory injunction suspending or restraining the enforcement, operation, or execution of any statute of a State by restraining the action of any officer of such State in the enforcement or execution of such statute ” should issue except upon a hearing before three judges as there provided. An unbroken line of decisions, beginning in 1911, has held that a municipal ordinance is not a statute within the meaning of that section. Sperry (& Hutchinson Co. v. City of Tacoma, 190 Fed. 682; Cumberland Telephone & Telegraph Co. n. City of Memphis, 198 Fed. 955; Birmingham Water Works Co. v. City of Birmingham, 211 Fed. 497, affirmed, 213 Fed. 450; Calhoun n. City of Seattle, 215 Fed. 226; City of Des Moines v. Des Moines Gas Co., 264 Fed. 506; City of Dallas v. Dallas Telephone Co., 272 Fed. 410. See also Land Development Co. v. City of New Orleans, 13 F. (2d) 898, reversed on the merits, 17 F. (2d) 1016. The principal ground of these decisions, namely, “ that the natural meaning of ‘ statute of a state ’ is a statute or law directly passed by the Legislature of the state, and the natural meaning of * any officer of such state ’ is an officer whose authority extends throughout the state, and is not limited to a small district,” (198 Fed. 955, 957) is, of course, equally applicable to § 237 of the Judicial Code. It cannot have been unknown to Congress. The construction had already been established when the Act of March 4, 1913, c. 160, 37 Stat. 1013, amended § 266 so as to make 120 OCTOBER TERM, 1927. Brandeis and Holmes, JJ., dissenting. 277U.S. it clearly applicable to suits to enjoin the orders of a state commission.4 The amending Act inserted after the words “ in the enforcement or execution of such statute,” the words “ or in the enforcement or execution of an order made by an administrative board or commission acting under and pursuant to the statutes of such State.” Congress did not include in the amendment any reference to municipal ordinances. The fact that it did not is significant.6 4 See the debate in the Senate at the preceding session, 48 Cong. Rec. 8120-8123. The House Committee on the Judiciary was “ of the opinion that the statute should be broadened, so as to prevent this kind of interference (i. e., by a single judge) with State officials who are performing their duties under the provisions of a statute enacted by the legislature of a State.” House Report, 62d Cong., 3d Sess., No. 1584, p. 2. Mr. Clayton, who was in charge of the bill in the House, said that its purpose was “ to put the order of a State railroad commission upon an equality with a statute of a State; in other words, to give the same force and effect to the order of a State railroad commission fixing rates as is accorded under existing law to a State statute.” 49 Cong. Rec. 4773. B This Court has not passed expressly on the construction to be given § 266 in this respect. Until amended by the Act of February 13, 1925, § 266 did not require the presence of three judges at the final hearing; and on appeal to this Court from the final decree the propriety of the action of the single judge in granting or denying a temporary injunction was not strictly in issue. Shaffer v. Carter, 252 U. S. 37, 44. But if this Court had doubted the power of a District Judge to act in such cases, it would hardly have mentioned without comment the fact that such a judge had granted or denied a temporary injunction. This it has done in a number of cases. See United Railroads v. San Francisco, 249 U. S. 517, 519; Southern Iowa Electric Co. n. Chariton, 255 U. S. 539, 541; Galveston Electric Co. v. Galveston, 258 U. S. 388, 390; Paducah v. Paducah Ry. Co., 261 U. S. 267, 271; St. Cloud Public Service Co. v. St. Cloud, 265 U. S. 352, 355. Since the effective date of the Act of 1925, this Court has decided, on certiorari to Circuit Courts of Appeals, a number of cases in which an application for a temporary injunction against the enforcement of a municipal ordinance had been heard before, and the final decree rendered by, a single district judge. See Hammond v. KING MFG. CO. v. AUGUSTA. 121 100 Brandeis and Holmes, JJ., dissenting. Prior to the Act of 1925, the difference, for purposes of appellate review, between a statute and a law enacted by a subordinate legislative body, had been called to the attention of Congress also by the cases which settled that the enactments of the legislatures and other law-making bodies of the territories and of the District of Columbia are not statutes of the United States within the meaning of legislation governing the jurisdiction of this Court. The question appears to have arisen first under the Act of March 3,- 1885, c. 355, § 2, 23 Stat. 443. The phraseology of this statute was similar to that of § 25 of the Judiciary Act of 1789, and this Court has always recognized that decisions under it and its later reenactments are authoritative with regard to the construction of § 237 of the Judicial Code.6 It permitted Schappi Bus Line, 275 U. S. 164; Hammond v. Farina Bus Line & Transportation Co., 275 U. S. 173; Delaware, Lackawanna & Western R. R. Co. v. Morristown, 276 U. S. 182. If a municipal ordinance had been a statute within § 266, the decrees of the district judges in these cases would have been void for want of jurisdiction. 6 See Ireland n. Woods, 246 U. S. 323, 328, citing and following Champion Lumber Co. v. Fisher, 227 U. S. 445, 451; Erie R. R. Co. v. Hamilton, 248 U. S. 369, 372, citing and following Baltimore & Potomac R. R. Co. v. Hopkins, 130 U. S. 210, District of Columbia v. Gannon, 130 U. S. 227, and United States n. Lynch, 137 U. S. 280, 285; Jett Bros. Distilling Co. v. City of Carrollton, 252 U. S. 1, 6, citing and following Baltimore & Potomac R. R. Co. v. Hopkins, 130 U. S. 210, and Champion Lumber Co. v. Fisher, 227 U. S. 445, 450, 451; Schafj v. Famechon Co., 258 U. S’. 76, 81, citing and following Baltimore & Potomac R. R. Co. v. Hopkins, 130 U. S. 210; Zucht v. King, 260 U. S. 174, 177, citing and following Taylor v. Taft, 203 U. S. 461, and Champion Lumber Co. v. Fisher, 227 U. S. 445; Lancaster v. McCarty, 267 U. S. 427, 430, citing and following Champion Lumber Co. v. Fisher, 227 U. S. 445, 451. The significance of decisions under the Act of 1885 is confirmed by the legislative history of the Act, which shows, as seemed probable from its language, that the provision with respect to “ a treaty or statute of or an authority exercised under the United States,” was derived, like § 237 of the Judicial Code, from § 25 of the Judiciary Act of 1789. See 16 Cong. Rec. 670-671. 122 OCTOBER TERM, 1927. Brandeis and Holmes, JJ., dissenting. 277 U. S. review of any judgment of the Supreme Court of a Territory or of the District of Columbia where “ is drawn in question the validity of a treaty or statute of or an authority exercised under the United States.” Thereafter, that provision, as modified by the Act creating the Court of Appeals for the District, February 9, 1893, c. 74, § 8, 27 Stat. 434, 436; District Code, § 233, 31 Stat. 1189, 1227, governed our appellate jurisdiction over the highest courts of the continental territories (other than Alaska) and of the District until the enactment of the Judicial Code, in which it was embodied as § 245 and, with important changes, as § 250. That our appellate jurisdiction over judgments involving the validity of acts of territorial legislatures and of the legislative body of the District, depended on the clause in the Act of 1885 allowing such review where the validity of an authority exercised under the United States had been challenged, was indicated in Maricopa & Phoenix R. R. Co. v. Arizona, 156 U. S. 347, 350-351, and Parsons v. District of Columbia, 170 U. S. 45, 49-50. The subject was fully discussed in more recent opinions. Thus, in McLean v. Denver & Rio Grande R. R. Co., 203 U. S. 38, 47-48, our jurisdiction to review a judgment of the Supreme Court of New Mexico upholding the validity of a territorial law was sustained on the ground that “ the validity of an authority exercised under the United States in the passage and enforcement of the law is directly challenged, and the case does involve the validity of an authority exercised under the power derived from the United States.” The right to review on appeal a judgment involving the validity of an ordinance or regulation of the District of Columbia was rested upon the same ground in Smoot v. Heyl, 227 U. S. 518, 522, although the statute authorizing the District Commissioners to make regulations provided that they should “ have the same force and effect within the District of Columbia as if enacted by Congress.” Act KING MFG. CO. v. AUGUSTA. 123 100 Brandeis and Holmes, JJ., dissenting. of June 14, 1878, c. 194, 20 Stat. 131. See also Walker V. Gish, 260 U. S. 447, 449. A similar ruling was made in Board of Public Utility Commissioners v. Manila Electric R. R. Co., 249 U. S. 262, where this Court dismissed- an appeal and a writ of error to review, under § 248 of the Judicial Code, a judgment of the Supreme Court of the Philippine Islands. That section, until amended by the Act of September 6, 1916, c. 448, 39 Stat. 726, 727, authorized review by writ of error or appeal, of a judgment of the highest court of the Philippine Islands where either the validity or the construction of a statute of the United States was involved. Reavis v. Fianza, 215 U. S. 16, 21-22; Gsell v. Insular Collector, 239 U. S. 93, 94-96. The Railroad challenged an order of the Commissioners purporting to be made in execution of an Act of the Philippine Commission authorizing the city of Manila to grant a franchise ordinance passed under the powers thereby granted. This Court dismissed the appeal and writ of error for want of jurisdiction, necessarily holding “ that the mere construction by the court of the franchise ordinance, and its consequent ruling that the duty did not rest on the Railroad Company to give the free transportation which the orders of the Commissioners had directed to be given” did not involve either the construction or the validity of a statute of the United States. Obviously, the statutes of territorial legislatures, the regulations of the Commissioners of the District of Columbia, and the Philippine statutes and ordinances bear a relation to acts of Congress that is wholly comparable to that borne by municipal ordinances to the statutes passed by the legislature of a State. Congress cannot have intended that in the Act of 1925, the phrase “ statute of any State ” should be read as including municipal ordinances within a State while, under like circumstances, the phrase “ statute of the United States ” does not include 124 OCTOBER TERM, 1927. f Brandeis and Holmes, JJ., dissenting. 277U.S. the ordinances of the District of Columbia, even where the enabling act provides that the ordinances shall have the same force as if enacted by the Congress of the United States. Moreover, if municipal ordinances are deemed to be statutes of a State within the meaning of § 237 (a) of the Judicial Code, legislative orders of state commissions, boards, and officials must be also. Prior to the Act of 1925, judgments sustaining the validity of such orders were reviewable on writ of error as fully as judgments sustaining the validity of states and ordinances. Between the effective date of the Act .of 1916 and that of the Act of 1925, this Court wrote opinions in 21 cases in which a judgment of the highest court of a State involving the validity of an order of a commission was reviewed on writ of error.7 In none of the opinions was it stated that jurisdiction existed because an order is a statute of a State.8 On the other hand, in Lancaster v. McCarty, 267 7 In Live Oak Water Users Association v. Railroad Commission, 269 U. S. 354, the Court, while asserting its jurisdiction over judgments sustaining such orders, dismissed a writ of error, as the judgment below rested on adequate non-federal grounds. 8 The jurisdiction was first challenged in Bluefield Water Works & Improvement Co. v. Public Service Commission, 262 U. S. 679. The Court said at p. 683: “ The prescribing of rates is a legislative act. The commission is an instrumentality of the State, exercising delegated powers. Its order is of the same force as would be a like enactment by the legislature. If, as alleged, the prescribed rates are confiscatory, the order is void. Plaintiff in error is entitled to bring the case here on writ of error and to have that question decided by this Court.” In Northern Pacific Ry. Co. v. Department of Public Works, 268 U. S. 39, 42, jurisdiction was assumed on the authority of the Bluefield case. In Live Oak Water Users Association v. Railroad Commission, 269 U. S. 354, 356, the Court said that “ for jurisdictional purposes the order of the Commission must be treated as though an Act of the Legislature.” This was said, of course, with reference to the situation under the Act of 1916, for the judgment under review was entered October 23, 1923. KING MFG. CO. v. AUGUSTA. 125 100 Brandeis and Holmes, JJ., dissenting. U. S. 427, 430, where our jurisdiction was invoked to review, on writ of error, the judgment of a state court denying the validity of an order of the Interstate Commerce Commission, the jurisdiction was sustained on the ground that the order “ is an authority exercised under the United States which by the contention of the shippers was drawn in question, and its validity denied by the state court.” Can it be that, while our power to review on writ of error a judgment of a state court denying the validity of an order of the Interstate Commerce Commission rested on the “ authority ” clause, our power to review a judgment sustaining the validity of an order of a state commission did not?9 The difference between a statute and an ordinance for purposes of appellate review—a difference which rests wholly on expediency—had been acted upon by Congress half a century earlier, when it undertook to deal with the congestion of business in this Court by regulating the 9 Since the effective date of the Act of 1925, no judgment of a state court has been reviewed by this Court on writ of error, where the sole claim was that a commission order was unconstitutional. In the following cases, governed by the Act of 1925, in which this Court reviewed on writ of error a judgment of a state court sustaining the validity of a commission order, the validity of the underlying statute as well as of the order was attacked: Frost & Frost Trucking Co. v. Railroad Commission, 271 U. S. 583; Chicago, Milwaukee & St. Paul Ry. Co. v. Railroad Commission, 272 U. S. 605; Miller Lumber Co. v. Floyd, 273 U. S. 672 (Per Curiam); Fox River Paper Co. n. Railroad Commission, 274 U. S. 651; Pierce v. Barker, 274 U. S. 718 (Per Curiam); Stimson Lumber Co. v. Kuykendall, 275 U. S. 207; International Great Northern R. R. Co. v. Railroad Commission, 275 U. S. 503 (Per Curiam). In Chicago, Milwaukee & St. Paul Ry. Co. v. Public Utilities Commission, 274 U. S. 344, and in Aetna Insurance Co. n. Hyde, 275 U. S. 440, the review was by certiorari. In Aetna Insurance Co. v. Baker, 276 U. S. 628, certiorari was denied. Compare Phillips v. Oklahoma, 274 U. S. 721 (Per Curiam); Phillips v. Oklahoma, 275 U. S. 489 (Per Curiam); Missouri v. Public Service Commission, 275 U. 8. 489 (Per Curiam), 126 OCTOBER TERM, 1927. Brandeis and Holmes, JJ., dissenting. 277 U. S. priority of hearings in revenue cases. Act of June 30, 1870, c. 181, 16 Stat. 176; Davenport City n. Dows, 15 Wall. 390, 392.10 It was reaffirmed when Congress, in 1925, withdrew the right to a direct appeal from the District Court in cases involving the validity of municipal ordinances, though allowing such an appeal in certain cases involving the validity of statutes and orders of commissions. On the other hand, the essential identity of statutes, ordinances, and orders, where the question concerns substantive rights, has always been recognized. Since all regulations established by competent authority are laws, the comprehensive term “ laws ” has been used when it was desired to include all forms of legislative action.11 Thus, as the enactments of a subordinate body exercising legislative authority are a part of the laws of a State, an ordinance or an order is a law within the meaning of the contract clause and is state action within the prohibitions of the Fourteenth Amendment. North 10 Mr. Chief Justice Chase explained why the Act should be construed as applying only to statutes and not to municipal ordinances: “ This preference is given, plainly enough, because of the presumed importance of such cases to the administration and internal welfare of the States, and because of their dignity as equal members of the Union. The reasons for preference do not apply to municipal corporations, more than to railroad and many other corporations.” p. 392. 11 In procedural matters—which, like jurisdiction, rest upon considerations of expediency—the difference between statutes and ordinances has been observed, in some instances even when in the legislation the more comprehensive term “ laws ” was used. Such was the case in Davenport City v. Dows, supra. Again, while municipal ordinances are “ laws of the several states ” within the meaning of § 34 of the Judiciary Act of 1789, 1 Stat. 73, 92, and § 721 of the Revised Statutes, they will not be judicially noticed in the federal courts; for “an ordinance is not a public statute, but a mere municipal regulation.” Robinson v. Denver Tramway Co., 164 Fed. 174, 176. Compare Garlich n. Northern Pacific Ry. Co., 131 Fed. 837, 839; Choctaw, 0. & G. R. R. Co. v. Hamilton, 182 Fed. 117, 121. KING MFG. CO. v. AUGUSTA. 127 100 Brandeis and Holmes, JJ., dissenting. American Cold Storage Co. n. Chicago, 211 U. S. 306, 313; Grand Trunk Ry. Co. v. Railroad Commission, 221 U. S. 400, 403; Ross v. Oregon, 227 U. S. 150, 162-163; Lake Erie & Western R. R. Co. v. Public Utilities Commission, 249 U. S. 422, 424; Standard Scale Co. v. Farrell, 249 U. S. 571, 577. For, as this Court has pointed out in New Orleans Water Works Co. v. Louisiana Sugar Refining Co., 125 U. S. 18, 30, 31; “ it is not strictly and literally true, that a law of a State, in order to come within the constitutional prohibition, must be either in the form of a statute enacted by the legislature in the ordinary course of legislation, or in the form of a constitution established by the people of the State as their fundamental law.”12 Prior to the Act of 1925, final judgments of a district or circuit court involving the constitutional validity of a municipal ordinance could be brought directly to this Court by writ of error or appeal under § 5 of the Court of Appeals Act, Act of March 3, 1891, c. 517, 26 Stat. 826, 827-828, and § 238 of the Judicial Code, because such review was authorized “ in any case that involves the construction or application of the Constitution of the United States,” and “ in any case in which the constitution or law of a State is claimed to be in contravention of the Constitution of the United States.” Davis & Farnum Manufacturing Co. v. City of Los Angeles, 189 U. S. 207, 216; Boise Artesian Water Co. v. Boise City, 230 U. S. 84, 90; see Standard Scale Co. v. Farrell, 249 U. S. 571, 577. And likewise a case involving the constitutional validity of an 12 It was on this statement of Mr. Justice Gray’s that the Court relied in North American Cpld Storage Co. n. Chicago, 211 U. S. 306, 313, where it answered a contention that a bill alleging only municipal legislative action presented no constitutional question sufficient to sustain the jurisdiction of the circuit court, by saying: “In this case the ordinance in question is to be regarded as in effect a statute of the State, adopted under a power granted it by the state legislature, and hence it is an act of the State within the Fourteenth Amendment.” 128 OCTOBER TERM, 1927. Brandeis and Holmes, J J., dissenting. 277 U. S. ordinance could be brought here on writ of error to or on appeal from the Circuit Court of Appeals if the jurisdiction of the district or circuit court had been invoked in part on constitutional grounds. City of Vicksburg v. Henson, 231 U. S. 259, 267. But in 1925 Congress amended § 238 so as to confine the right to a direct appeal in cases involving the validity of state action to those which fell within the provisions of § 266—provisions which had already been construed as not including municipal ordinances. Unless the phrase “ statute of any State” as used in §§ 237(a) and 240(b) of the Judicial Code as amended, includes municipal ordinances, no case from any lower court involving only the validity of a municipal ordinance can now be reviewed by this Court otherwise than upon certiorari. When it is borne in mind that the severe limitations upon the right of review by this Court imposed by the Act of 1925 were made solely because the increase of the Court’s business compelled, the reasons why Congress should have taken away the right to a review by writ of error to the highest court of a state in cases involving the validity of ordinances, while leaving unaffected the right in cases involving the validity of statutes, becomes clear. There are only 48 States. In 1920 there were 924 municipalities in the United States of more than 8,000 inhabitants.13 The validity of ordinances of even smaller municipalities had come to this Court for adjudication.14 13 Fourteenth Census of the United States (1920), vol. I, table 27. 14 See, e. g., Brennan v. Titusville, 153 U. S. 289; Wabash R. R. Co. v. Defiance, 167 U. S. 88; Wilson v. Eureka City, 173 U. S. 32; Skaneateles Water Co. v. Skaneateles, 184 U. S'. 354; Western Union Telegraph Co. v. New Hope, 187 U. S. 419; Williams v. Talladega, 226 U. S. 404; Pierce Oil Corporation v. Hope, 248 U. S. 498. In Village of Terrace Park v. Errett, 273 U. S. 710, and Village of University Heights v. Cleveland Jewish Orphans Home, 275 U. S. 569, the Court denied petitions for certiorari in cases where Circuit Courts of Ap KING MFG. CO. v. AUGUSTA. 129 100 Brandeis and Holmes, JJ., dissenting. The increasingly complex conditions of urban life have led, as this Court noted in Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 386-387, to a corresponding increase in municipal police legislation. Recently, two classes of municipal ordinances, new in character—those relating to zoning and those relating to motor vehicles— had become the subject of many controversies. The constitutionality of these ordinances can rarely be determined simply by applying a general rule. The Court must consider the effect of the ordinance as applied. As the validity of the particular ordinance depends ordinarily upon special facts,15 these must be examined whenever there is jurisdiction. Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282. Though no burdensome factual inquiry is involved, the controversy may often be of trifling significance, as in the case at bar. Thus, persuasive reasons existed why Congress should have denied, in 1925, review by writ of error in cases which involved only the validity of a municipal ordinance. If, by striking out from § 237 of the Judicial Code the clause 11 or an authority exercised under any State,” Congress did not exclude from review by writ of error cases involving the validity of municipal ordinances and commission orders, it wholly failed to accomplish what, in view of the statements made to it in regard to the peals had held the zoning ordinances of small suburban districts to be unconstitutional as applied to the respondents. If ordinances are statutes of a State, these cases could have been brought here by writ of error under § 240(b). In Gorieb v. Fox, 274 U. S. 603, a judgment of a state court sustaining a zoning ordinance was reviewed by certiorari. Compare Township of Maplewood v. Margolis, 276 U. S. 617, certiorari denied; Nectow v. City of Cambridge, post, p. 183. 15 The Court has noted this dependence with respect both to zoning ordinances and to bus regulations. See Euclid v. Ambler Realty Co., 272 U. S. 365, 395; Hammond v. Schappi Bus Line, 275 U. S. 164,170. 5963°—29------9 130 OCTOBER TERM, 1927. Brandeis and Holmes, J J., dissenting. 277 U. S. effect of the amendment,18 must be deemed to have been its purpose in so amending the section. That is, to relieve this Court, in many cases, of the burden of obligatory review. For, other than these, there had been considered by this Court, in the nine years between the effective dates of the Jurisdictional Acts of 1916 and 1925, and decided with opinions, not more than eight cases involving the validity of an authority exercised under a State or under the United States.17 On the other hand the forty cases in which judgments of state courts sustaining municipal ordinances or commission orders had been reviewed on writ of error, had entailed a burden out of all proportion to their number. The evidence introduced to establish the facts in cases involving the validity either of orders or of municipal ordinances is often both volum- 18 See Hearing before a Subcommittee of the Committee on the Judiciary of the United States Senate, 68th Cong., 1st Sess., on S. 2060, p. 35; Hearing before the Committee on the Judiciary of the House of Representatives, 68th Cong., 2d Sess., on H. R. 8206, p. 13. 17 In only three cases in which opinions were written, aside from those involving municipal ordinances and commission orders, does jurisdiction appear to have been exercised under the clause in the Act of 1916 allowing a writ of error in cases where the validity of an authority exercised under a State has been challenged and sustained: Schwab v. Richardson, 263 U. S. 88; Love v. Griffith, 266 U. S. 32; Appleby v. Delaney, 271 U. S. 403. Possibly, under the view announced by the Court, even such state action as was involved in these cases amounts to “ a statute of a state.” In five cases jurisdiction seems to have been based on the clause allowing a writ of error where the validity of an authority exercised under the United States has been denied: American Express Co. v. Caldwell, 244 U. S. 617; Northern Pacific Ry. Co. v. North Dakota, 250 U. S. 135; Dakota Central Telephone Co. v. South Dakota, 250 U. S. 163; Davis v. Newton Coal Co., 267 U. S. 292; Lancaster v. McCarty, 267 U. 8. 427. The first and the last of this group concerned orders of the Interstate Commerce Commission which, presumably, must be held to be statutes of the United States if the orders of state commissions are statutes of a state. Perhaps the other three as well were statutes of the United States under the view now taken by the Court. KING MFG. CO. v. AUGUSTA. 131 100 Brandeis and Holmes, JJ., dissenting. inous and conflicting.18 Condensation of the evidence is not required, as in cases coming from the lower federal courts. See Equity Rule 75 (b), 226 U. S. Appendix 23; Rule 7 (2), 266 U. S. 657-658. Compare Barber Asphalt Paving Co. n. Standard Asphalt & Rubber Co., 275 U. S. 372. Although the evidence is often conflicting, findings of fact are not required. Compare Chicago, Milwaukee & St. Paul Ry. Co. v. Tompkins, 176 U. S. 167, 179; Lincoln Gas A Electric Light Co. n. Lincoln, 223 U. S. 349, 364; City of Hammond v. Schappi Bus Line, 275 U. S. 164, 171. Congress must have had the threatening volume and the heavy burden of this litigation in mind when it struck from § 237 of the Judicial Code the words “ or an authority exercised under any State.” From the decision of Weston v. City Council of Charleston, 2 Pet. 449, 463^464, in which Mr. Chief Justice Marshall rested the jurisdiction of this Court to review the judgments of state courts involving the validity of municipal ordinances upon the clause “ or an authority exercised under any State,” to the passage of the Act of 1925, ninety-six years elapsed. During that period the Court wrote opinions in a multitude of cases in which that specific jurisdiction was exercised. In only two of them has there been found any statement that the jurisdiction could be sustained on the ground that a municipal ordinance is a statute of a State, within the meaning of § 25 of the Judiciary Act of 1789 or its later reenact- 18 Thus, in Southwestern Bell Telephone Co. v. Public Service Commission, 262 U. S. 276, the record was 685 pages in length. In Bluefield Water Works & Improvement Co. v. Public Service Commission, 262 U. S. 679, the record extended over 1398 pages. The record in Northern Pacific Ry. Co. v. Department of Public Works, 268 U. S. 39, contained 1131 pages in addition to numerous exhibits. In Hammond v. Schappi Bus Line, 275 U. S. 164, and Hammond v. Farina Bus Line & Transportation Co., 275 U. S. 173, the Court found itself compelled to remand to the District Court in order for that court to make proper findings of fact. 132 OCTOBER TERM, 1927. Brandeis and Holmes, JJ., dissenting. 277 U. 8. ments. These two opinions were written at successive terms by the same member of the Court. Atlantic Coast Line R. R. Co. v. Goldsboro, 232 U. S. 548, 555; Rein-man v. Little Rock, 237 U. S. 171, 176. An examination of the record and briefs in the two cases seems to make it clear that the statements were obiter and were made inadvertently. No question of the jurisdiction of this Court under § 237 of the Judicial Code was raised or discussed by counsel in either case; and this Court could not, under the legislation then in force, have entertained a doubt as to the existence of the jurisdiction. Neither opinion of the Court refers to Weston v. City Council of Charleston, 2 Pet. 449, 463-464, or to Home Insurance Co. v. City Council of Augusta, 93 U. S. 116, 121—the cases which, on full consideration, had settled that the basis of our jurisdiction was the clause relating to the validity of an authority. Neither refers to McLean v. Denver & Rio Grande R. R. Co., 203 U. S. 38, 47-48, or to Smoot v. Heyl, 227 U. S. 518, 522—the cases which had recently confirmed that ruling. There was obviously no intention to overrule these cases. The only authority cited in support of the statement in the Goldsboro and Little Rock cases, Williams v. Bruffy, 96 U. S. 176, 183, furnishes no basis for them. That case involved an act of the Congress of the Confederate States— a body whose legislation would obviously be described in common speech as “ statutes.” It was conceded that the particular act was a “ statute.” The question was whether it was a statute “ of any State.” 19 The Court 19 That the sole question discussed was whether the act of the Congress of the Confederate States was an act of “ any State ” appears from the briefs on file in the office of the Clerk. See Supplemental Brief of Enoch Totten for the Plaintiff in Error, pp. 10-11; Brief of Henry W.-Garnett for the Defendant in Error, p. 3; Brief of William A. Maury, as amicus curiae, pp. 4, 5, 7. The question was thus stated by Mr. Maury on p. 5 of his brief; “ Upon what ground, then, can it KING MFG. CO. v. AUGUSTA. 133 100 Brandeis and Holmes, J J., dissenting. held that since the enactment had been given the force of law in Virginia, it was as much the action of that State as if it had been originally passed by an authorized legislative body. In being so adopted by Virginia the enactment clearly did not lose the quality which it had had from its inception, namely, that of being a “ statute.” It was in this connection that Mr. Justice Field said: “Any enactment, from whatever source originating, to which a State gives the force of law is a statute of the State, within the meaning of the clause cited relating to the jurisdiction of this court.” This language was used with reference to the acts of an irregular legislative body whose enactments would be commonly described as “ statutes.” It had no reference to the acts of a regular legislative body whose enactments would never be characterized as statutes, in ordinary speech. That Mr. Justice Field would not so have applied it, is clear. For in the term of Court preceding that in which Williams v. Bruffy was decided, he had participated in the decision in Home Insurance Co. v. City Council of Augusta, 93 U. S. 116, 121, in which the Court had plainly indicated that a municipal ordinance was not a “ statute of any State.” The dicta concerning our jurisdiction in Atlantic Coast Line R. R. Co. v. Goldsboro, and in Reinman v. Little be maintained that a statute of, or authority exercised under, the hostile de facto Government of Virginia was the statute of or authority of a State, in the sense of the law which is this Court’s commission to take cognizance of appeals from the state tribunals? (5. How., Scott vs. Jones).” The case cited by Mr. Maury, 5 How. 343, 376, held that the statutes of an unorganized political body were not statutes “ of a State ” within the meaning of § 25 of the Judiciary Act, although that body later became a State. In Miners Bank n. Iowa, 12 How. 1, a territorial statute was held not to be a statute “ of a State ” within § 25, though the Territory had since become a State. The language in Ford V. Surget, 97 U. S. 594, 603, 604, and Stevens v. Griffith, 111 U. S. 48, 50, also makes clear the exact point of the decision in Williams v. Bruffy, 134 OCTOBER TERM, 1927. Brandeis and Holmes, J J., dissenting. 277 U. S. Rock, have never been repeated in any later case dealing with municipal ordinances, even where the decisions in the two cases have been relied upon. Some care seems to have been taken not to repeat the expression that a municipal ordinance was a statute of a State. See Thomas Cusack Co. v. Chicago, 242 U. S. 526, 529; Zucht v. King, 260 U. S. 174, 176. To construe the phrase 11 statute of any State ” as applying to a municipal ordinance disregards the common and appropriate use of the words; ignores decisions which for nearly a century have governed our jurisdiction to review judgments of state courts sustaining the validity of such ordinances; and tends to defeat the general purpose of the Act of 1925 “ to relieve this Court by limiting further the absolute right to a review by it.” Moore v. Fidelity & Deposit Co., 272 U. S. 317, 321; Smith n. Wilson, 273 U. S. 388, 390.20 It completely frustrates the particular purpose which Congress must have had in striking from § 237 the clause “ or an authority exercised under any state.” 21 The trival character of the substan- 20 Much weight was given to this purpose in construing earlier acts reducing our jurisdiction. Compare McLish v. Roff, 141 U. S. 661, 666; Robinson v. Caldwell, 165 U. S. 359, 362; American Sugar Refining Co. v. New Orleans, 181 U. S. 277, 281, all construing the Circuit Court of Appeals Act, March 3, 1891, c. 517, 26 Stat. 826; American Security & Trust Co. v. District of Columbia, 224 U. S. 491, 495, construing § 250 of the Judicial Code; Inter-Island Steam Navigation Co., Ltd., v. Ward, 242 U. S. 1, construing § 246 of the Judicial Code, as amended by the Act of January 28, 1915, c. 22, 38 Stat. 803. 21 Since the effective date of the Act of 1925, judgments of state courts sustaining the validity of municipal ordinances have been reviewed on writ of error in a number of cases. Beery v. Houghton, 273 U. S. 671 (Per Curiam); Ohio ex rel. Clarke v. Deckebach, 274 U. S. 392; Angelo v. Winston-Salem, 274 U. S. 725 (Per Curiam); Bloecher & Schaaf v. Baltimore, 275 U. S. 490 (Per Curiam); Kresge Co. v. Dayton, 275 U. S. 505 (Per Curiam). Compare Natchez v. McNeely, 275 U. S. 502 (Per Curiam). But in none of them did SULTAN RY. CO. v. DEPT. OF LABOR. 135 100 Syllabus. tive question presented by this case—in which a writ of certiorari, if applied for, would plainly not have been granted—illustrates the wisdom of Congress in limiting our jurisdiction on writ of error. SULTAN RAILWAY & TIMBER COMPANY v. DEPARTMENT OF LABOR AND INDUSTRIES OF THE STATE OF WASHINGTON et al. ECLIPSE MILL COMPANY v. SAME. ERROR TO THE SUPREME COURT OF WASHINGTON. Nos. 274 and 275. Argued March 5, 1928.—Decided May 14, 1928. 1. An order of a state bureau requiring a manufacturer to report the number and wages of employees, and to pay premiums or assessments into the state workmen’s compensation fund out of which injured employees are compensated, is a “ statute ” of the State within the meaning of Jud. Code, § 237 (a). King Mjg. Co. v. Augusta, ante, p. 100. P. 136. 2. Employment on a navigable river in assembling saw logs there in booms for towage elsewhere for sale, and the breaking up of booms which have been towed on such a river to a saw mill and the guiding of the logs to a conveyor extending into the river by which they are drawn into the mill for sawing, is employment of a local character having only an incidental relation to navigation and commerce, and the rights and obligations of the employees and their employers arising from injuries suffered by the former may be regulated by the local compensation law. P. 137. 141 Wash. 172, affirmed. counsel question the jurisdiction of this Court, or call to our attention the significance of the amendment of § 237 made by the Act of 1925. It is well settled that the exercise of jurisdiction under such circumstances is not to be deemed a precedent when the question is finally brought before us for determination. United States v. More, 3 Cranch, 159, 172; Snow v. United States, 118 U. S. 346, 354; Cross v. Burke, 146 U. S. 82, 86; Louisville Trust Co. n. Knott, 191 U. S. 225, 236; Arant v. Lane, 245 U. S. 166, 169. 136 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. Error to judgments of the Supreme Court of Washington, affirming judgments which upheld an order of the respondent, requiring the petitioners to make reports and deposits under the State Workmen’s Compensation Law. Mr. Frederic E. Fuller, with whom Messrs. James W. McBurney and John H. O’Brien were on the brief, submitted for plaintiffs in error. Mr. Mark H. Wight, with whom Mr. John H. Dunbar was on the brief, for defendants in error. Mr. Justice Van Devanter delivered the opinion of the Court. These suits present the same questions, were heard together and may be disposed of in one opinion, as they were below. They were brought to restrain the enforcement of an order, legislative in character, made by a state bureau— the objection to the order being that it is repugnant to the Constitution and laws of the United States in that it impinges on the admiralty and maritime jurisdiction of the United States. The order was upheld by the trial court and by the Supreme Court of the State, 141 Washington 172. The cases are here on writs of error sued out under § 237(a) of the Judicial Code. The order is a statute of the State within the meaning of that section, and therefore our jurisdiction is invoked in the right mode. John P. King Manufacturing Co. v. Augusta, ante, p. 100, and cases there cited. The order requires each of the plaintiffs from time to time to report the number of men employed by it in the work about to be described; together with the wages paid to them, and to pay into the State’s workmen’s compensation fund, out of which injured employees are compensated, premiums or assessments based on such wages. SULTAN RY. CO. v. DEPT. OF LABOR. 137 135 Brandeis and Holmes, JJ., dissenting. The plaintiff in one suit is conducting logging operations, a part of which consists in putting sawlogs into booms, after they have been thrown into a navigable river, so that they conveniently may be towed elsewhere for sale. The men are employed in the booming work. The plaintiff in the other suit conducts a saw mill on the bank of a navigable river. Logs are towed in booms to a point adjacent to the mill and then anchored. The booms afterwards are taken apart and the logs are guided to a conveyor extending into the river and then drawn into the mill for sawing. The men are employed in taking apart the booms and guiding the logs to the conveyor. In both instances the place of work is on navigable water— in one it is done before actual transportation begins and in the other after the transportation is completed. It is settled by our decisions that where the employment, although maritime in character, pertains to local matters, having only an incidental relation to navigation and commerce, the rights, obligations and liabilities of the parties, as between themselves, may be regulated by local rules which do not work material prejudice to the characteristic features of the general maritime law or interfere with its uniformity. Grant Smith-Porter Co. n. Rohde, 257 U. S. 469; Millers’ Indemnity Underwriters v. Braud, 270 U. S. 59; Alaska Packers Association v. Industrial Accident Commission, 276 U. S. 467. We think the order in question as applied to the situations disclosed comes within that rule. Judgments affirmed. Mr. Justice Brandeis^ For reasons stated in John P. King Manufacturing Co. v. City Council of Augusta, ante, p. 100, Mr. Justice Holmes and I think that the writs of error in these cases also should be dismissed. Treating these writs of error as 138 OCTOBER TERM, 1927. Syllabus. 277 U.S. petitions for certiorari (see Gaines v. Washington, ante, p. 81), we think that the petitions should be denied. The trivial character of the questions presented illustrates again the wisdom of not granting, in cases involving the orders of administrative boards, a review as of right— with its attendant right to oral argument. It is true that each of these cases presents a question involving the Federal Constitution. But in both the controlling principle is well settled, and the question presented is simply whether on the particular facts it is applicable. Obviously such a question is of no general importance. The number of administrative boards, state and municipal, with like power to issue orders is now very large. Each board issues many orders. And each order may, by its application to varying facts, give rise to many distinct constitutional questions. Dahnke-Wdlker Milling Co. N. Bondurant, 257 U. S. 282. HAMBURG-AMERICAN LINE TERMINAL & NAVIGATION COMPANY v. UNITED STATES. SAME v. SAME. ATLAS LINE STEAMSHIP COMPANY v. SAME. APPEALS FROM THE COURT OF CLAIMS. Nos. 3, 4, 5. Argued April 25, 1928.—Decided May 14, 1928. 1. Under the Trading With the Enemy Act of October 6, 1917, § 2, property in this country owned by a domestic corporation was nonenemy property even though an enemy owned all of its stock. P. 140. 2. Where property of a domestic corporation whose stock was enemy-owned was taken over during the war and the compensation fixed by the President was paid, interest on the sum paid is not recoverable from time of taking to time of payment, in the absence of anything showing that due allowance for the delay was not made in fixing the compensation. P. 141. HAMBURG-AMERICAN CO. v. U. S. 139 138 Opinion of the Court. 3. Petitions in these cases alleging taking and use of plaintiffs’ property by the United States, state causes of action but should be made more definite and certain by amendment. P. 141. 59 Ct. Cis. 461; Id. 974, reversed. Appeals from judgments of the Court of Claims dismissing petitions based on the taking and use of plaintiffs’ property during the war. Mr. Charles H. Le Fevre for appellants. Solicitor General Mitchell for the United States. Congress has adopted the policy of determining the status of corporations as enemy or not without regard to the nationality of their stockholders, and the United States admits error in the decision of the Court of Claims in so far as it held that the property of New Jersey corporations was enemy-owned because all their stock was enemy-owned. As the appellant in each case is to be dealt with as a citizen of the United States, notwithstanding its stock was enemy-owned, then upon the taking of the use of its property a contract to pay just compensation for that use was implied. The claim for interest on the award of compensation for the taking of the title must fail because there is nothing on the face of the award or in the petition to indicate that any item of just compensation was omitted. The United States concedes that the judgments should be reversed and compensation awarded for the value of the use. Mr. Justice McReynolds delivered the opinion of the Court. These appeals were taken June 16, 1924, from judgments of the Court of Claims which sustained demurrers to the petitions. For the views of that Court see Deutsch-Australische D amp fschiffs-Gesellschaft, Appellant, v. The 140 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S, United States, 59 Ct. Cis. 461. Appellants are incorporated under the laws of New Jersey and their entire capital stock has long been owned by the Hamburg-American Line, a German corporation. In Cause No. 3 the appellant seeks to recover (1) compensation for the use of certain docks and piers, New York harbor, seized by the United States April 6, 1917, and used by them until June 28, 1918; and (2) interest on the sum awarded by the President (December 3, 1918) as compensation for the same property, from June 28, 1918, when title was taken thereto until January 5, 1919, the date of actual payment. In Cause No. 4 the claim is for the value of two tug-boats, launch, barge, and coal hoister requisitioned and taken by the United States April 6,1917, at the port of New York; and in No. 5 judgment is asked because of three barges, likewise taken on the same day. The court below evidently proceeded upon the view that the property of appellant corporations should be treated as owned by an enemy because their entire capital stock belonged to a German corporation. And as the property was seized during the war with Germany it held there could be no recovery. Without doubt Congress might have accepted and acted upon that theory. It was adopted in the St. Tudno, Lloyd’s Reports of Prize Cases, Vol. V, p. 198, and the Michigan, Lloyd’s Reports of Prize Cases, Vol. V, p. 421. But Congress did not do so; it definitely adopted the policy of disregarding stock ownership as a test of enemy character and permitted property of domestic corporations to be dealt with as non-enemy. The prescribed plan was to seize the shares of stock when enemy owned rather than to take over the corporate property. The Trading With The Enemy Act, approved October 6, 1917 (c. 106, 40 Stat. 411), provides— “ Sec. 2. That the word ‘ enemy,’ as used herein, shall be deemed to mean, for the purposes of such trading and of this Act— HAMBURG-AMERICAN CO. v. U. S. 141 138 Opinion of the Court. “(a) Any individual, partnership, or other body of individuals, of aqy nationality, resident within the territory (including that occupied by the military and naval forces) of any nation with which the United States is at war, or resident outside the United States and doing business within such territory, and any corporation incorporated within such territory of any nation with which the United States is at war or incorporated within any country other than the United States and doing business within such territory. . . In Behn, Meyer & Co. n. Miller, Alien Property Custodian, 266 U. S. 457, 472, we held the status of the corporation was not fixed by the stockholders’ nationality, and said— “ Before its passage the original Trading with the Enemy Act was considered in the light of difficulties certain to follow disregard of corporate identity and efforts to fix the status of corporations as enemy or not according to the nationality of stockholders. These had been plainly indicated by the diverse opinions in Daimler Co. v. Continental Tyre & Rubber Co., 2 A. C. (1916) 307. The petition in No. 3 states a good cause of action for the use of the docks and piers from April 6, 1917, to June 28, 1918. As Congress might have directed forfeiture of all property beneficially owned by enemy subjects, it had power to provide for seizure followed by such compensation as the President might determine. Here such compensation was fixed and ultimately paid; and we find nothing to show that due allowance was not made for the delay in payment. In No. 4 the petition fails clearly to show what action was taken by the United States. It does allege that the property was taken and used and to that extent discloses adequate ground for recovery. It ought to be made more certain by amendment. 142 OCTOBER TERM, 1927. Argument for Petitioner. 277 U. S. If title to the vessels described in Cause No. 5 was actually taken, the United States became liable for their value. For any use of such vessels before acquisition of title the United States should pay. The allegations of the petition are not entirely clear and should be made more definite. The judgments appealed from are reversed. The causes will be remanded to the Court of Claims for further proceedings in conformity with this opinion. Reversed. LONG, COMMISSIONER, v. ROCKWOOD. SAME v. SAME. CERTIORARI TO THE SUPERIOR COURT FOR THE COUNTY OF WORCESTER, MASSACHUSETTS. Nos. 201 and 202. Argued January 20, 1928.—Decided May 14, 1928. A State may not tax the income received by one of her citizens as royalties for the use of patents issued to him by the United States. P. 145. 257 Mass. 572, affirmed. Certiorari, 274 U. S. 729, 730, to judgments of the Superior Court of Massachusetts abating taxes, entered on rescripts from the Supreme Judicial Court. The judgments were recovered by Rockwood in actions against Long, Commissioner of Corporations and Taxation of the Commonwealth. Mr. F. Delano Putnam, Assistant Attorney General of Massachusetts, with whom Messrs. Arthur K. Reading, Attorney General, and R. Ammi Cutter, Assistant Attorney General, were on the brief, for petitioner. All that a patentee obtains by his patent is the right to exclude others from the use, manufacture, or sale of the process patented. A patent once granted is merely LONG v. ROCKWOOD. 143 142 Argument for Petitioner. an intangible property interest of the patentee. The right to exclude alone is unique. Missouri v. Bell Tel. Co., 23 Fed. 539; Grant v. Raymond, 6 Pet. 220; Bloomer v. McQuewan, 14 How. 539; Paper Bag Patent Case, 210 U. S. 405; Bauer v. O’Donnell, 229 U. S. 1; Motion Picture Patents Co. v. Universal Film Co., 243 U. S. 502. The sole federal purpose is accomplished when the patent is granted—viz., the promotion of science and the useful arts by obtaining from inventors a public announcement of their progressive achievements in exchange for the monopoly granted to them for a limited time. Denning Wire & Fence Co. v. American Steel & Wire Co., 169 Fed. 793; O’Brien Worthen Co. v. Stempel, 209 Fed. 847; I. T. S. Rubber Co. n. Essex Co., 276 Fed. 478; Pennock v. Dialogue, 2 Pet. 1; Kendall v. Winsor, 21 How. 322; Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502. Neither the federal purpose behind the patent powers given to Congress by the Constitution nor the patentee’s right to exclude is hampered in any way by state taxation of the net income of the patentee computed upon a gross income in which is included patent royalties. Once a patent is granted, it is within the power of a state to legislate within a wide range of discretion with respect to the exercise of the patent rights and to the use and manufacture of patented articles, so long as no interference with the right to exclude takes place. Patterson v. Kentucky, 97 U. S. 501; Webber v. Virginia, 103 U. S. 344; Allen v. Riley, 203 U. S. 347; Woods & Sons Co. v. Carl, 203 U. S. 358; Ozan Lumber Co. v. Union County Bank, 207 U. S. 251; Ager v. Murray, 105 U. S. 126; Pacific Bank v. Robinson, 57 Cal. 520; Luckett v. Deb-park, 270 U. S. 496; Machine Co. v. Gage, 100 U. S. 676; Emert v. Missouri, 156 U. S. 296. In order that a property interest may be permitted to escape state taxation as a federal instrumentality, it must 144 OCTOBER TERM, 1927. Argument for Petitioner. 277 U. S. appear that the interest in question bears some substantial and intimate relation to the continued operation of a federal constitutional purpose. A patent is merely the reward given for the disclosure of an invented process by virtue of a contract with the government which by its terms includes no provision that the reward or its avails shall be exempt from state taxation. By far the greater number of cases dealing with the implied prohibition of the exercise of the States’ taxing power with respect to federal instrumentalities have dealt with the taxation by the State of property interests in active use in accomplishing a decided federal purpose. McCulloch v. Maryland, 4 Wheat. 316; Home Savings Bank n. Des Moines, 205 U. S. 503; Farmers Bank v. Minnesota, 232 U. S. 516; Smith n. Kansas City Title & Trust Co. 255 U. S. 180; Clallam County n. United States, 263 U. S. 341; First Nat. Bank v. Anderson, 269 U. S. 341; Northwestern Mut. Life Ins. Co. v. Wisconsin, 275 U. S. 136. It can hardly be said that the patentee is in any sense an agent of the Federal Government, yet even if he were such an agent, he could be taxed with respect to the property employed by him as such an agent so long as no governmental function performed by him was taxed. Railroad Co. v. Peniston, 18 Wall. 5, so clearly supports the jurisdiction of a State under the Constitution to lay a “tax which remotely affects the efficient exercise of a federal power” that it would be difficult to see how it could be contended that taxation of a patent or of the avails of a patent in any way hampered the Federal Government in promoting science and the useful arts by the process of exclusion (the only constitutional method available to the Federal Government), were it not for the dictum in McCulloch v. Maryland, 4 Wheat. 316, and for the decisions in the Oklahoma tax cases where the Federal Government’s functions with respect to the pro- LONG v. ROCKWOOD. 145 142 Opinion of the Court. tection of the Indians were held to be impeded by the state taxes there involved. Distinguishing Choctaw & Gulf R. R. Co. v. Harrison, 235 U. S. 292; Railroad Co. v. Peniston, 18 Wall. 5; Indian etc. Oil Co. v. Oklahoma, 240 U. S. 522; Gillespie v. Oklahoma, 257 U. S. 501; Jaybird Mining Co. v. Weir, 271 U. S. 609. See Dyer v. Melrose, 197 Mass. 99. Commonwealth v. Westinghouse Electric Co., 151 Pa. 265, and People v. Assessors, 156 N. Y. 417, fall into the error of considering patents on the same footing as the federal franchise drawn in question in California v. Central Pacific R. R. Co., 127 U. S. 1, and as the mails and the mint. People v. Assessors, supra, relies largely on cases overruled by this Court in Allen v. Riley, 203 U. S. 347, and Campbell v. Haverhill, 155 U. S. 610. The tax imposed no perceptible or appreciable burden upon the ability of the Federal Government or any agent thereof to perform any federal function. Mr. Merrill S. June, with whom Mr. Thomas H. Gage was on the brief, for respondent. Mr. Justice McReynolds delivered the opinion of the Court. These causes present the question whether the State of Massachusetts may tax, as income, royalties received by one of her citizens for the use of patents issued to him by the United States. The Supreme Judicial Court of that State held such an imposition would amount to a tax upon the patent right itself and was prohibited by the Federal Constitution. We agree with that conclusion. The Constitution (Art. 1, Sec. 8) empowers Congress 11 to promote the progress of science and useful arts, by securing for limited times to authors and inventors the 5963°—29----10 146 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. exclusive right to their respective writings and discoveries; . . . ” The first Congress provided for issuance, in the name of the United States, of letters patent granting “ for any term not exceeding fourteen years, the sole and exclusive right and liberty of making, constructing, using and vending to others to be used, the said invention or discovery ...” Act April 10, 1790, Sec. 1, Chap. 7, 1 Stat. 109. Chap. 230, Act July 8, 1870, 16 Stat. 201 (Rev. Stat. Sec. 4884; Sec. 40, Title 35, U. S. Code)— “ Sec. 22. And be it further enacted, That every patent shall contain a short title or description of the invention or discovery, correctly indicating its nature and design, and a grant to the patentee, his heirs or assigns, for the term of seventeen years, of the exclusive right to make, use and vend the said invention or discovery throughout the United States and the Territories thereof, . . .” Chief Justice Marshall, speaking for the court in Grant v. Raymond, 6 Pet. 218, 241-242, stated the general purpose for which patents issue— “ To promote the progress of useful arts, is the interest and policy of every enlightened government. . . . This subject was among the first which followed the organization of our government. It was taken up by the first congress . . . The amendatory act of 1793 contains the same language, and it cannot be doubted that the settled purpose of the United States has ever been, and continues to be, to confer on the authors of useful inventions an exclusive right in their inventions for the time mentioned in their patent. It is the reward stipulated for the advantages derived by the public for the exertions of the individual, and is intended as a stimulus to those exertions. The laws which are passed to give effect to this purpose ought, we think, to be construed in the spirit in which they have been made. . . . The public yields LONG v. ROCKWOOD. 147 142 Opinion of the Court. nothing which it has not agreed to yield; it receives all which it has contracted to receive. ...” Kendall v. Winsor, 21 How. 322, 327-328— “ It is undeniably true, that the limited and temporary monopoly granted to inventors was never designed for their exclusive profit or advantage; the benefit to the public or community at large was another and doubtless the primary object in granting and securing that monopoly.” Bloomer v. McQuewan, 14 How. 539, 549— “ The franchise which the patent grants, consists altogether in the right to exclude every one from making, using, or vending the thing patented, without the permission of the patentee. This is all he obtains by the patent.” See also Paper Bag Patent case, 210 U. S. 405, 423; Bauer de Cie v. O’Donnell, 229 U. S. 1, 11. The power to exclude others granted by the United States to the patentee subserves a definite public purpose—to promote the progress of science and useful arts. The patent is the instrument by which that end is to be accomplished. It affords protection during the specified period in consideration of benefits conferred by the inventor. And the settled doctrine is that such instrumentalities may not be taxed by the States. In California v. Pacific Railroad Co., 127 U. S. 1, the State sought to sustain a tax laid upon a franchise granted by the United States; but its power therein was denied. Through Mr. Justice Bradley this court said—“Recollecting the fundamental principle that the Constitution, laws and treaties of the United States are the supreme law of the land, it seems to us almost absurd to contend that a power given to a person or corporation by the United States may be subjected to taxation by a State.” The same general doctrine was approved by McCullough v. Maryland, 4 Wheaton, 316; Home Savings Bank n. Des Moines, 205 U. S. 503; Farmers, etc. Bank v. Min- 148 OCTOBER TERM, 1927. Holmes, Brandeis, Sutherland, and Stone, JJ., dissenting. 277 U. S. nesota, 232 U. S. 516; Choctaw & Gulf R. R. Co. v. Harrison, 235 U. S. 292; Indian Terr., etc. Oil Co. v. Oklahoma, 240 U. S. 522; Smith v. Kansas City Title & Trust Co., 255 U. S. 180; Gillespie v. Oklahoma, 257 U. S. 501; Clallam County v. United States, 263 U. S. 341; First National Bank v. Anderson, 269 U. S. 341; Jaybird Mining Co. v. Weir, 271 U. S. 609; Northwestern Mutual Life Ins. Co. v. Wisconsin, 275 U. S. 136. The courts of last resort in Pennsylvania and New York have held that a State may not tax patents granted by the United States. Westinghouse Elec. Mfg. Co. v. Commonwealth, 151 Pa. 265; People, etc. v. Assessors, 156 N. Y. 417. And no opinion to the contrary has been cited. As United States patents grant only the right to exclude, our conclusion is not in conflict with those cases which sustain the power of the States to exercise control over articles manufactured by patentees, to regulate the assignment of patent rights, and to prevent fraud in connection therewith. Patterson v. Kentucky, 97 U. S. 501; Webber v. Virginia, 103 U. S. 344; Allen v. Riley, 203 U. S. 347; John Woods & Sons v. Carl, 203 U. S. 358; Ozan Lumber Co. n. Union County National Bank, 207 U. S. 251. The challenged judgments are affirmed. Affirmed. Mr. Justice Holmes. These are complaints brought by the respondent against the Commissioner of Corporations and Taxation of Massachusetts for the abatement of income taxes for the years 1921 and 1922. The question raised as stated by the Supreme Judicial Court of the State is whether the Commonwealth has the right to tax the income received from royalties for the use of patents issued by the United States. That Court held that the Commonwealth had no such right under the Constitution of the United States LONG v. ROCKWOOD. 149 142 Holmes, Brandeis, Sutherland, and Stone, JJ., dissenting, and the Commissioner obtained a writ of certiorari from this Court. The reasoning of the Court is simple. If the State ‘ cannot tax the patent, it cannot tax the royalties received from its use’. The postulate is founded on the casual intimation of Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 432, and is said to have been conceded below by the Commissioner. It hardly is conceded here and, whether it is or is not, if this Court should be of opinion that the conclusion urged by the Commissioner can be supported upon broader grounds than he felt at liberty to take, the Court is not estopped by his doubts. Why then cannot a State tax a patent by a tax that in no way discriminates against it? Obviously it is not true that patents are instrumentalities of the Government. They are used by the patentees for their private advantage alone. If the Government uses them it must pay like other people. Richmond Screw Anchor Co. v. United States, 275 U. S. 331. The use made by the patentee may be not to make and sell the patented article but simply to keep other people from doing so in aid of some collateral interest of his own. Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S. 405, 422, 424. National banks really are instrumentalities of the Government and directly concern the national credit. Indians are wards of the nation. Interstate commerce is left expressly to regulation by Congress and the States can intermeddle only by its consent. In this case the advantages expected by the Government are mainly the benefits to the public when the patent has expired and secondarily the encouragement of invention, Pennock v. Dialogue, 2 Peters, 1, 19. The most that can be said is that a tax is a discouragement so far as it goes and to that extent in its immediate operation runs counter to the Government intent. But patents would be valueless to their owner without the organized societies constituted by the 150 OCTOBER TERM, 1927. Holmes, Brandeis, Sutherland, and Stone, JJ., dissenting.277 U.S. States, and the question is why patents should not contribute as other property does to maintaining that without which they would be of little use. Most powers conceivably may be exercised beyond the limits allowed by the law. Rights that even seem absolute have these qualifications. American Bank & Trust Co. v. Federal Reserve Bank of Atlanta, 256 U. S. 350, 358. But we do not on that account resort to the blunt expedient of taking away altogether the power or the right. Board of Trade v. Christie Grain & Stock Co., 198 U. S. 236, 247, 248. The power to tax is said to be the power to destroy. But, to repeat what I just now have had occasion to say in another case, this Court, which so often has defeated the attempt to tax in certain ways, can defeat an attempt to discriminate or otherwise to go too far without wholly abolishing the power to tax. The power to fix rates is the power to destroy, but this Court while it endeavors to prevent confiscation does not prevent the fixing of rates. Even with regard to patents some laws of a kind that might destroy the use of them within the State have been upheld. Patterson v. Kentucky, 97 U. S. 501. Webber v. Virginia, 103 U. S. 344. Emert n. Missouri, 156 U. S. 296. They must be reasonable or they will be held void, but if this Court deems them reasonable they stand. Allen v. Riley, 203 U. S. 347, 355. The fact that the franchise came from a grant by the United States is no more reason for exemption, standing by itself, than is the derivation of the title to a lot of land from the same source. Tucker v. Ferguson, 22 Wall. 527. In Baltimore Shipbuilding & Dry Dock Co. n. Baltimore, 195 U. S. 375, the land was conveyed subject to a condition that a dry-dock should be built upon it which the United States was to have the right to use free from charge for docking and which was to revert to the United States on a diversion of the land to any other use or on PLAMALS v. PINAR DEL RIO. 151 142 Argument for Petitioner. the dry-dock being unfit for use for six months. Certainly a case in which the United States was much more clearly interested than in an ordinary patent. Yet there it was held that neither the company nor the land was an instrumentality of the United States and that there was nothing to hinder the right of the State to tax. See further Forbes v. Gracey, 94 U. S. 762. Mr. Justice Brandeis, Mr. Justice Sutherland and Mr. Justice Stone agree with this opinion. PLAMALS v. S. S. “ PINAR DEL RIO,” etc. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. y No. 225. Argued February 27, 1928.—Decided May 14, 1928. 1. The cause of action of a seaman under § 33 of the Jones Act for personal injuries suffered on shipboard in the course of his employment, not due to unseaworthiness of the ship, is not a lien upon the ship, and its enforcement in admiralty cannot be by a suit in rem. P. 154. 2. The ordinary maritime privilege or lien, though adhering to the vessel, is a secret one which may operate to the prejudice of general creditors and purchasers without notice, and is therefore stricti juris. It cannot be extended by construction, analogy or inference. P. 156. 3. Seamen may invoke, at their election, the relief accorded by the old rules against the ship, or that provided by the new against the employer; but not both. Id. 16 F. (2d) 984, affirmed. Certiorari, 274 U. S. 733, to a decree of the Circuit Court of Appeals, which affirmed the' dismissal of a libel in rem brought by a seaman for the recovery of damages on account of personal injuries. Mr. Charles A. Ellis, with whom Mr. Silas B. Axtell was on the brief, for petitioner. 152 OCTOBER TERM, 1927. Argument for Petitioner. 277 U. S. An American court of admiralty having jurisdiction of a cause under the circumstances here involved, should apply the American Maritime Law to the case as the lex loci delicti. In a suit in an American court, § 33 of the Jones Act is applicable to a tort which occurs upon a foreign vessel while lying in the territorial waters of the United States, and applicable to this case. The right given to seamen under § 33 of the Jones Act to recover for personal injuries suffered in the course of their employment as the result of negligence, may be enforced in admiralty by a proceeding in rem, in accordance . with the principles of the maritime law under which a lien and right in rem is recognized in favor of seamen suing for personal injuries. The Jones Act is not a local statute of a State merely seized on by the courts as supplementary to the maritime law in absence of any similar right afforded by that law. Cf. The Corsair, 145 U. S. 335; The Albert Dumois, 177 U. S. 240; The Hamilton, 207 U. S. 398; The J. E. Rumbell, 148 U. S. 1. On the contrary, it is a part of the general maritime law, enacted by Congress, the legislative body empowered to declare and modify the maritime law, and concerns itself only with seamen and their own and their employers’ relative rights—a subject peculiarly maritime—and is uniformly applicable throughout the country wherever the American maritime law applies. Panama R. R. Co. v. Johnson, 264 U. S. 375. The right of an injured seaman to a lien, or to proceed against the vessel in rem to enforce such rights to indemnity as he had under the maritime law prior to the enactment of the Jones Act, is well recognized. The Lafayette, 269 Fed. 917. The statute leaves the seaman free under the general maritime law to enforce his right under the new rules by proceeding in rem on the admiralty side of the court, PLAMALS v. PINAR DEL RIO. 153 151 Opinion of the Court. and permits the jurisdiction of the admiralty court to be invoked and exercised through a proceeding in rem, “ as it has been from the beginning” in cases involving personal injury to a seaman in the course of his employment on a ship. The Osceola, 189 U. S. 158; International Stevedore Co. v. Haverty, 272 U. S. 50; Sparling v. United States, {The Princess Matoika), 1925 A. M. C. 1547. Under the general maritime law, independent of the Jones Act, libelant was entitled to recover for respondent’s failure to supply and keep in order, proper appliances, including a proper bos’n’s chair and proper gant-line, properly rigged, and for the unseaworthiness of the vessel in this respect. Mr. Cletus Keating, with whom Mr. Vernon S. Jones was on the brief, for respondent. Petitioner’s rights are governed by British law, the law of the ship’s flag. No maritime lien was created, and the rights of the petitioner would be a suit either at law or in admiralty against his employer. Panama Railroad Co. n. Johnson, 264 U. S. 375; Western Fuel Co. v. Garcia, 257 U. S. 233; The Corsair, 145 U. S. 335; The Albert Dumois, 177 U. S. 240; Benedict on Admiralty, 5th ed., Vol. 1, p. 215. Under the British law, petitioner had no lien against the vessel which would support a libel in rem. Even if American law as laid down by this Court in The Osceola, 189 U. S. 158, is applicable to this case, petitioner failed to make out any cause of action because the accident was due to the negligence of a fellow servant. Mr. Justice McReynolds delivered the opinion of the Court. Plamals, the petitioner, a subject of Spain, belonged to the crew of the British ship “ Pinar Del Rio.” She was 154 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. anchored at Philadelphia, April 27, 1923. He was being hoisted up to paint the smoke stack; a rope broke; he fell to the deck and sustained serious injuries. The accident resulted from the negligence of the mate who selected a defective rope. An abundant supply of good rope was on board. Six months after the accident Plamals began this proceeding in rem against the ship in the District Court, Southern District of New York. The libel alleged that his injuries “ were due to the fault or neglect of the said steamship or those in charge of her in that the said rope was old, worn and not suitable for use, in that libellant, was ordered to perform services not within the scope of his duties, and in other respects that libellant will point out on the trial of this action.” There is nothing to show that painting the smoke stack was beyond the scope of the duties assumed. In the District Court the petitioner asserted by his proctor that he claimed under Sec. 33, Jones Act, 41 Stat. 1007, which follows— “ That section 20 of such Act of March 4, 1915, be, and is, amended to read as follows: ‘ Sec. 20. 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; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the PLAMALS v. PINAR DEL RIO. 155 151 Opinion of the Court. defendant employer resides or in which his principal office is located.’ ” The District Court ruled that the rights and liabilities of the parties were fixed by the law of the ship’s flag and was of opinion that the British Workmen’s Compensation Act afforded the only remedy. It accordingly dismissed the libel. The Circuit Court of Appeals held that a lien against the vessel is essential to every proceeding in rem against her; and that no such lien arose by reason of Sec. 33 of the Jones Act in favor of the injured seaman. Upon that ground it affirmed the questioned decree. We agree with the view of the Circuit Court of Appeals and find it unnecessary now to consider whether the provisions of Section 33 are applicable where a foreign seaman employed on a foreign ship suffers injuries while in American waters. The record does not support the suggestion that the “ Pinar Del Rio ” was unseaworthy. The mate selected . a bad rope when good ones were available. We must treat the proceeding as one to enforce the lia-. bility prescribed by Sec. 33. It was so treated by petitioner’s proctor at the original trial; and the application for certiorari here spoke of it as based upon that section. The evidence would not support a recovery upon any other ground. Sec. 20, Act of March 4, 1915 (38 Stat. 1185), originally provided—“ That in any suit to recover damages for any injury sustained on board vessel or in its service seamen having command shall not be held to be fellow-servants with those under their authority.” Chélentis n. Lucken-bach Steamship Co. (1918), 247 U. S. 372, 384, pointed out that this imposed no new liability upon the shipowner. Sec. 33 brings into our maritime law the provisions of certain statutes which define the liability of masters to employees originally intended to be enforced in actions at 156 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. law. They imposed personal liability and gave no lien of any kind. The statute which extended them to seamen expressly provided that the employer might be sued only in the district where he resides or has his principal office. This provision repels the suggestion that the intention was to subject the ship to in rem proceedings. Generally, at least, proceedings of that nature may be brought wherever the ship happens to be. The ordinary maritime privilege or lien, though adhering to the vessel, is a secret one which may operate to the prejudice of general creditors and purchasers without notice and is therefore stricti juris. It cannot be extended by construction, analogy or inference. The Corsair, 145 U. S. 335, 347; The Albert Dumois, 177 U. S. 240, 257; Osaka Shosen Kaisha v. Lumber Co., 260 U. S. 490, 499. Panama R. R. Co. v. Johnson, 264 U. S. 375, 386, 391, declares—Sec. 33 “ is concerned with the relative rights and obligations of seamen and their employers arising out of personal injuries sustained by the former in the course of their employment.” “ The injured seaman is permitted but not required to proceed on the common-law side of the court.” 11 The statute leaves the injured seaman free under the general law—Secs. 24 (par. 3) and 256 (par. 3) of the Judicial Code—to assert his right of action under the new rules on the admiralty side of the court.” In the system from which these new rules come no hen exists to secure claims arising under them and, of course, no right to proceed in rem. We cannot conclude that the mere incorporation into the maritime law of the rights which they create to pursue the employer was enough to give rise to a lien against the vessel upon which the injury occurred. The section under consideration does not undertake to impose liability on the ship itself, but by positive words indicates a contrary purpose. Seamen may invoke, at their election, the relief accorded by the old ST. L. & S. W. RY. v. NATTIN. 157 151 Syllabus. rules against the ship, or that provided by the new against the employer. But they may not have the benefit of both. To subject vessels during all the time allowed by the statute of limitations to secret liens to secure undisclosed and unlimited claims for personal injuries by every seaman who may have suffered injury thereon would be a very serious burden. One desiring to purchase, for example, 'could only guess vaguely concerning the value. “An Act to provide for the promotion and maintenance of the American Merchant Marine ” ought not to be so construed in the absence of compelling language. The judgment of the court below must be affirmed. Affirmed. ST. LOUIS & SOUTHWESTERN RAILWAY COMPANY v. NATTIN, TAX COLLECTOR. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF LOUISIANA. No. 263. Argued March 2, 1928.—Decided May 14, 1928. 1. A state statute empowering a local governing body, like the police jury in Louisiana, to create road districts and with the approval of a popular vote to construct roads and issue bonds to pay for them, to be met by taxation ad valorem of the land in the district, need not allow the taxpayer a hearing on these matters (aside from the valuation of his land for taxation), to be valid under the Fourteenth Amendment. P. 159. 2. The Constitution of Louisiana did not inhibit the collection in 1926 of a tax partly intended to supply funds to meet instalments of principal and interest upon bonds maturing in March, 1927. Id. 3. The legality of a general ad valorem tax oh the property in the road district to pay for construction or improvement of roads, does not depend on receipt of any special benefit by the taxpayer. Id. 4. Louisiana statutes provide ample opportunity for contesting valuations of property for taxation purposes. Id. 158 OCTOBER TERM, 1927. Opinion of the Court. • 277 U. S. 5. A local ad valorem tax on the property of a carrier engaged in interstate commerce does not amount to regulation of interstate commerce. P. 159. 27 F. (2d) 766, affirmed. Appeal from a decree of the District Court, dismissing the bill of the Railway Company, seeking to enjoin the collection of taxes levied on its property for the purposes of satisfying road improvement bonds. Mr. John D. Wilkinson, with whom Messrs. J. R. Turney, C. Huffman Lewis, and William Scott Wilkinson were on the brief, for appellants. Messrs A. M. Wallace, Roberts C. Milling, and R. E. Milling, Jr., were on the brief, for appellee. Mr. Justice McReynolds delivered the opinion of the Court. This cause was heard by a specially constituted District Court—three judges. Jud. Code, Secs. 283, 266. It dismissed the bill and directed that the costs, together with ten per cent, damages, be assessed against appellant. The opinion of the court, considered with the argument here, so plainly demonstrates the lack of merit in the claims advanced that we need not discuss them at length. The appellant owns a line of railroad lying partly in Bossier Parish, Louisiana, also all stock of the corporate owner of the bridge over Red River at Bossier City. Purporting to proceed as directed by the state statute, the Police Jury of that Parish undertook to create from the major part of its territory a Consolidated Road District, to issue bonds thereof to pay for constructing a highway therein and to lay an ad valorem tax upon all property within the District to meet the obligation. Appellant asked for an injunction prohibiting any attempt to ST. L. & S. W. RY. v. NATTIN. 159 157 Opinion of the Court. collect the taxes levied and assessed for the year 1926. None of the alleged grounds for relief is substantial. In Louisiana the police jury, subordinate to the state legislature, is the governing body of the parish. A statute of the State empowers these juries to create road districts from such portions of their parishes as they may determine and, with the approval of a popular vote, to construct roads and issue bonds to pay therefor. The validity of this statute is challenged upon the ground that it fails to provide the taxpayer with proper opportunity to be heard. A sufficient short answer is that under the repeated decisions here this is. not essential. Valley Farms Co. v. Westchester County, 261 U. S. 155, Hancock v. Muskogee, 250 U. S. 454. But here in fact the appellant had abundant opportunity to present objections to the proposed plan. We find nothing in the Constitution of Louisiana, when reasonably construed, which inhibited the collection in 1926 of a tax partly intended to supply funds to meet installments of principal and interest upon bonds maturing in March, 1927. As the assailed tax was general and ad valorem, its legality does not depend upon the receipt of any special benefit by the taxpayer. The local statutes provided ample opportunity for the appellant to contest the valuation of its property for taxation purposes. Without doubt a local legislative body, when properly authorized, may lay general ad valorem taxes upon all property within its jurisdiction, including that of common carriers engaged in interstate commerce, without violating the Federal Constitution. That such taxation does not amount to regulation of interstate commerce is settled doctrine. The decree below is affirmed. Affirmed. 160 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. STANDARD PIPE LINE COMPANY v. MILLER COUNTY HIGHWAY & BRIDGE DISTRICT CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 577. Argued April 20, 1928.—Decided May 14, 1928. The part of an interstate oil pipe line which traversed a special road improvement district, and which was constructed at less than $9,000 per mile, was taxed for benefits at $5,000 per mile, though the benefit that it actually received from the road, if any, was small. Held that the assessment was arbitrary and unreasonable in amount. P. 162. 19 F. (2d) 3, reversed. Certiorari, 275 U. S. 520, to a decree of the Circuit Court of Appeals, which reversed a decree of the District Court enjoining the collection of a spécial improvement tax. Mr. Wm. H. Arnold, with whom Messrs. T. M. Milling, W. H. Arnold, Jr., and David C. Arnold were on the brief, for petitioner. Mr. Henry Moore, Jr., for respondent. Mr. Justice McReynolds announced the opinion of the Court. This suit, begun in the United States District Court, Western District of Arkansas, May 21, 1924, seeks an injunction to restrain the Miller County Highway & Bridge District from attempting to collect road improvement taxes upon petitioner’s property. Apparently, petitioner—complainant in the original bill—owns twenty-five miles of pipe, laid in two parallel and adjacent lines through respondent District used for interstate transportation of oil; also, for use in connec- STANDARD PIPE LINE v. HIGHWAY DIST. 161 160 Opinion of the Court. tion therewith, some miles of telegraph and telephone wire, of small value, strung upon leased poles. The total average original cost of the pipe lines (constructed partly in 1909 and partly in 1915) was less than $9,000 per mile. The officers of the District seem to have assessed benefits to be received by all this property from proposed improvements to highways at $60,000. Claiming that the assessment was “wholly unwarranted, unlawful, grossly disproportionate and palpably arbitrary and in discrimination against the property,” the bill asked for an injunction, etc. After answer much proof was taken. The District Court made the following findings of fact and law— 1. That the construction of the highway has not added anything and will add nothing to the value of the property of plaintiff taxed for its construction and maintenance. 2. The construction of the highway of defendant has not added and will not add anything to the revenue which is obtained by plaintiff by the transportation of oil through its pipe lines. 3. The levy of a tax of $5,000.00 a mile upon plaintiff’s right of way, the pipe line and telegraph and telephone wires and lines in the Miller County Highway and Bridge District, is not laid upon the same plan that is followed with regard to other lands in the district. 4. The levy of $5,000.00 a mile is palpably arbitrary. 5. The alleged benefit to plaintiff’s property by the construction of the highway is speculative and conjectural. 6. Plaintiff is not estopped from maintaining this suit. 7. The Act of the Legislature of Arkansas purporting to validate generally the levy of the tax made by the defendant upon the property in the District is not effective to validate the levy upon plaintiff’s right of way and pipe lines, because as to plaintiff’s property, such levy is arbitrary. 5963°—29-------11 162 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. And upon these findings it ordered an injunction as prayed. The Circuit Court of Appeals rendered a written opinion April 18, 1927, wherein it held that the pipe lines were real property subject to assessment for benefits like other realty, and that the evidence indicated petitioner’s lines received some benefit from the improved highways. Also “ That the procedure by which the value of the particular property of the appellee was arrived at and the amount of the benefits determined, does not commend itself to us as altogether fair, nor is the tax imposed against appellee entirely equitable as between it and other property owners within the district; but this, standing alone, is not decisive of the question.” After citing a number of cases decided here and in the lower federal courts it further said—“ The tendency of these very late authorities is to greatly narrow the constitutional grounds of objection to assessments of this character. They forbid us to weigh the benefits against the burdens, and require us to hold in the instant case that under all the circumstances there was sufficient justification for the legislative determination that appellee’s property was benefited.” It made no ruling upon the claim set up by the District that as petitioner had failed to avail itself of the appeal to Commissioners, provided by the statute, it could not maintain the bill. While it may be that the pipe lines received some small benefit from the road improvements, we regard the assessment actually made against them as arbitary and unreasonable in amount. The Circuit Court of Appeals announced its conclusion without knowledge of our opinion in Road Improvement District No. 1, etc. v. Missouri Pacific R. R. Co., 274 U. S. 188. Its opinion indicates that if our views there stated had been known, a different conclusion might have been reached. In the circumstances, it seems STANDARD PIPE LINE v. HIGHWAY DIST. 163 160 Opinion of the Court. best to reverse the challenged decree and remand the cause to the Circuit Court of Appeals for a new hearing, as though upon the original appeal; and for such other action as may be necessary properly to protect the rights of the parties. Reversed. SPROUT v. CITY OF SOUTH BEND. ERROR TO THE SUPREME COURT OF INDIANA. No. 208. Submitted January 20, 1928.—Decided May 14, 1928. Plaintiff in error operated a motor bus for passengers between a city in Indiana and points in Michigan. He required all passengers from the city to pay fare to Michigan, but habitually allowed those desiring to do so to alight in the suburbs short of the state line. He objected to an ordinance of the city which forbade operation of motor buses in the city streets unless licensed by the city and which conditioned the issuance of licenses upon payment of a fee adjusted to the seating capacity of the bus—in his case $50— and upon the filing of a contract of liability insurance, to be furnished by a corporation authorized to do business in the State, covering damages to property or persons from negligent operation of the bus within the city. Held— 1. The requirement that the insurance must be by a company authorized to do business in Indiana did not violate the rights of the plaintiff in error under the Fourteenth Amendment, because it was reasonable as applied to his case. P. 167. 2. Objection that this requirement discriminates against insurance companies not authorized to do business in Indiana is not open to plaintiff in error. Id. 3. The suburban traffic was not interstate commerce, since the destination intended by the passenger when he begins his journey and known to the carrier, determines the character of the commerce. P. 168. 4. As respects the interstate commerce, the license fee cannot be sustained as one exacted to defray expenses of regulating traffic for the public safety and convenience, it not appearing that such fees were imposed or applied for that purpose, or that the amount collected was no more than was reasonably required for it. P- 169, 164 OCTOBER TERM, 1927. Argument for Plaintiff in Error. 277 U. S. 5. The license fee cannot be sustained as a charge imposed on motor vehicles as their fair contribution to the cost of constructing and maintaining highways, it being a flat tax, substantial in amount, the same for buses plying the streets continually as for those making only a single trip daily, and there being no suggestion in the language of the ordinance or its construction by the state court that the proceeds are in any part to be applied to such construction or maintenance. P. 170. 6. The license fee cannot be sustained as an occupation tax, because not shown to be imposed solely on account of the intrastate business. P. 171. 7. Semble that the requirement of liability insurance, so far as it concerns damages suffered by persons other than passengers, is not an unreasonable burden on interstate commerce. Id. 198 Ind. 563, reversed. Error to a judgment of the Supreme Court of Indiana, which affirmed a judgment for a penalty inflicted on Sprout for violating an ordinance of the city which forbade operation of motor buses without a license. Mr. Dudley M. Shively, with whom Messrs. Isaac K. Parks, Frank Gilmer, and Walter R. Arnold were on the brief, submitted for plaintiff in error. If the ordinance be held valid as not a burden on interstate commerce, then a like ordinance in the State of Michigan would be upheld on the same principle. Result : Every city and village through which an exclusively interstate carrier would be obliged to effect a passage from Grand Rapids, Michigan, to Indianapolis, Indiana, could make similar exactions. Thirty-three municipal corporations each compelling the payment of a $50.00 annual license fee (to say nothing of the $200.00 tax), a total of $1,650.00, for the privilege of making, say, only two trips a month between the city of Grand Rapids, Michigan, and the city of Indianapolis, Indiana. And if the trip be extended further, into Kentucky, proportionately more. It was precisely to avert such unconscionable practices that SPROUT v. SOUTH BEND. 165 163 Argument for Defendant in Error. the interstate commerce clause was written into the Federal Constitution. Besides leaving each village, town and city to exact such tribute, nothing was to prevent each village, town and city—under the holding of the Indiana Supreme Court— from requiring the carrier to take out insurance in companies in Indiana. No end to the qualifications and specifications touching the companies in which the insurance must be taken before licenses can be issued by the several municipalities. Each at liberty to make requirements entirely inconsistent with all the others. The municipalities of Michigan (and of Kentucky, if the course of carriage be extended to that State) would, naturally, not be content with a policy of insurance written in some corporation of Indiana. Mr. Iden S. Romig, City Attorney, submitted for defendant in error. Requiring an indemnity bond did not violate any provision of the Constitution. Ex parte Cardinal, 170 Cal. 519; Ex parte Sullivan, 77 Tex. Cr. R. 72; Ex parte Dickey, 76 W. Va. 576; Memphis v. State, 133 Tenn. 83; Willis v. Fort Smith, 121 Ark. 606; LeBlanc v. New Orleans, 138 La. 243; Auto Transit Co. v. Fort Worth, (Tex. Civ. App.) 182 S. W. 685; Nolen v. Riechman, 225 F. 812; Hazelton v. Atlanta, 144 Ga. 775; Huston v. Des Moines, 176 Iowa 255; Commonweal th v. Theberge, 231 Mass. 386; West v. Asbury Park, 89 N. J. L. 402; Jitney Bus Ass’n v. Wilkes-Barre, 256 Pa. 462; Ex parte Parr, 82 Tex. Cr. R. 525; Hadfield v. Jjundin, 98 Wash. 657; State ex rel. v. Dillon, 82 Fla. 276; Packard v. Banton, 264 U. S. 140. Requiring that the insurance be obtained from a company authorized in the State of Indiana did not make the ordinance unconstitutional. Lutz v. New Orleans, 235 Fed. 978, affirmed 237 Fed. 1018; Puget Sound L. 166 OCTOBER TERM, 1927. Opinion of the Court. 277 IL 8. & P. Co. v. Grassmeyer, 102 Wash. 482; State v. Seattle Taxicab Co., 90 Wash. 416; Ex parte Cardinal, 170 Cal. 519; Memphis v. State, 133 Tenn. 83. Use of the city streets as a place for the indiscriminate solicitation and acceptance of passengers brought the bus owner within the police power of the State to license and regulate both driver and vehicle by way of providing for the safety, security, and general welfare of the public, so long, at least, as Congress had not legislated on the subject. Hendricks v. Maryland, 235 U. S. 610; Kane v. New Jersey, 242 U. S. 160; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365; Martine v. Kozer, 11 F. (2d) 645. Mr. Justice Brandeis delivered the opinion of the Court. By ordinance adopted in 1921, South Bend, Indiana, prohibited, with exceptions not here material, the operation on its streets of any motor bus for hire unless licensed by the city. Sprout, a resident of that State, operated regularly a bus with seats for twelve persons between points within South Bend and the City of Niles, Michigan. He paid the state registration fee but refused to apply for a city license. In 1923, he was prosecuted by the city in a local court for violation of the ordinance and defended on the ground that it was invalid as applied to him. The case was heard on agreed facts. Sprout claimed, among other things, that the ordinance violated the commerce clause and the equal protection clause of the Fourteenth Amendment. These claims were overruled; a penalty of $50 was imposed; and the judgment of the trial court was affirmed by the highest court of the State, 198 Ind. 563. The case is here on writ of error. Compare John P. King Manufacturing Co. v. City Council of Augusta, ante p. 100. SPROUT v. SOUTH BEND. 167 163 Opinion of the Court. The ordinance prescribes license fees varying with the seating capacity of the bus. That for a bus with seats for twelve persons is $50 a year. Before the license can issue, the applicant must file with the city a contract of liability insurance providing for the payment of any final judgment that may be rendered for damages to property or the person resulting from the negligent operation of the bus within the city. The amount of insurance required is limited to a liability of $1,000 to any one person and of $2,500 for damages arising from a single accident. The insurance must be furnished by a company authorized to do business within the State. These requirements apply alike to busses operating wholly within the city and to those operating from points within it to points without. The ordinance makes no distinction between busses engaged exclusively in interstate commerce, those engaged exclusively in intrastate commerce, and those engaged in both classes of commerce. Nor does the ordinance, in its requirement of liability insurance, distinguish in terms between liability to passengers traveling interstate and other liability resulting from negligent operation. The claim that the .ordinance violates the Fourteenth Amendment is rested mainly upon the ground that Sprout is required to furnish insurance issued by a company authorized to do business in Indiana. That contention may be quickly disposed of. The provision limiting the insurance to such companies is obviously a reasonable one so far as Sprout is concerned. Compare La Tourette v. McMaster, 248 U. S. 465, 468. The further objection that the requirement discriminates against insurance companies not authorized to do business within the State is not open to the plaintiff in error. Cronin v. Adams, 192 U. S. 108, 114; Erie R. R. Co. v. Williams, 233 U. S. 685, 705; Arkadelphia Milling Co. v. St. Louis Southwestern Ry. Co., 249 U. S, 134, 149. 168 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. The claim that the ordinance violates the commerce clause presents questions requiring serious consideration. Sprout did not carry passengers from one point in South Bend to another. He was not a local carrier. Primarily his business was interstate. But the agreed facts show that he was not engaged exclusively in interstate commerce. The distance from the north city limits of South Bend to Niles is about nine miles. Half of this distance lies within Indiana. Along the highway traversed within that State lie many suburban residences and oner village tributary to South Bend. Sprout purported to offer transportation from that city only to persons des-, tined to points in Michigan. He required that all passengers from South Bend pay the fare to some Michigan point. But, in fact, he served suburban passengers. He made stops habitually at points within Indiana in order to permit passengers from South Bend to leave the bus before the state-line was reached. The legal character of this suburban bus traffic was not affected by the device of requiring the payment of a fare fixed for some Michigan point or by Sprout’s professing that he sought only passengers destined to that State. The actual facts govern. For this purpose, the destination intended by the passenger when he begins his journey and known to the carrier, determines the character of the commerce. Compare Philadelphia A Reading Ry. Co. v. Hancock, 253 U. S. 284; Baltimore & Ohio R. R. Co. v. Settle, 260 U. S. 166, 171. The suburban traffic was intrastate commerce. The Supreme Court of Indiana did not pass upon the question whether Sprout, by reason of the suburban traffic, was engaged also in intrastate traffic. Nor did it consider whether his rights as an interstate carrier would be affected by his engaging also in intrastate business. It affirmed the judgment of the trial court on the broad ground that, since Sprout made use of the streets in “ the SPROUT v. SOUTH BEND. 169 163 Opinion of the Court. indiscriminate solicitation and acceptance of passengers,” he was “ within the police power of the state to license and regulate both driver and vehicle by way of providing for the safety, security and general welfare of the public.” It is true that, in the absence of federal legislation covering the subject, the State may impose, even upon vehicles using the highways exclusively in interstate commerce, non-discriminatory regulations for the purpose of insuring the public safety and convenience; that licensing or registration of busses is a measure appropriate to that end; .and that a license fee no larger in amount than is reason-'ably required to defray the expense of administering the regulations may be demanded. Hendrick v. Maryland, 235 U. S. 610, 622; Kane v. New Jersey, 242 U. S. 160; Morris v. Duby, 274 U. S. 135; Clark v. Poor, 274 U. S. 554. Compare Hess v. Pawloski, 274 U. S. 352. These powers may also be exercised by a city if authorized to do so by appropriate legislation. Compare Erb v. Morasch, 177 U. S. 584, 585; Mackay Telegraph Co. v. Little Rock, 250 U. S. 94, 99. Such regulations rest for their validity upon the same basis as do state inspection laws, Patapsco Guano Co. v. Board of Agriculture, 171 U. S. 345; Red “ C ” Oil Co. v. Board of Agriculture, 222 U. S. 380, and municipal ordinances imposing on telegraph companies, though engaged in interstate commerce, a tax to defray the expense incident to the inspection of poles and wires. Western Union Telegraph Co. v. New Hope, 187 U. S. 419; Postal Telegraph-Cable Co. v. Richmond, 249 U. S. 252, 258; Mackay Telegraph Co. v. Little Rock, 250 U. S. 94, 99. But it does not appear that the license fee here in question was imposed as an incident of such a scheme of municipal regulation; nor that the proceeds were applied to defraying the expenses of such regulation; nor that the amount collected under the ordinance was no more than was reasonably required for such a purpose. It follows that the exaction of the license fee 170 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. cannot be sustained as a police measure. Atlantic & Pacific Telegraph Co. V. Philadelphia, 190 U. S. 160, 164; Postal-Telegraph Cable Co. n. New Hope, 192 U. S. 55; Adams Express Co. v. New York, 232 U. S. 14, 32. Compare Foote & Co. v. Stanley, 232 U. S. 494, 503. It is true also that a State may impose, even on motor vehicles engaged exclusively in interstate commerce, a reasonable charge as their fair contribution to the cost of constructing and maintaining the public highways. Hendrick v. Maryland, 235 U. S. 610, 622; Interstate Busses Corporation v. Blodgett, 276 U. S. 245. And this power also may be delegated in part to a municipality by appropriate legislation. Compare St. Louis n. Western Union Telegraph Co., 148 U. S. 92, 98; 149 U. S. 465. An exaction for that purpose may be included in a license fee. Hendrick v. Maryland, supra; Kane v. New Jersey. 242 U. S. 160, 168-169; Clark v. Poor, 274 U. S. 554. But no part of the license fee here in question may be assumed to have been prescribed for that purpose. A flat tax, substantial in amount and the same for busses plying the streets continuously in local service and for busses making, as do many interstate busses, only a single trip daily, could hardly have been designed as a measure of the cost or value of the use of the highways. And there is no suggestion, either in the language of the ordinance oi in the construction put upon it by the Supreme Court oi Indiana, that the proceeds of the license fees are, in am part, to be applied to the construction or maintenance ol the city streets. Compare Tomlinson v. City of Indianapolis, 144 Ind. 142; City of Terre Haute v. Kersey, 15f Ind. 300; Hogan v. City of Indianapolis, 159 Ind. 523. It follows that on the record before us the exaction oi the license fee cannot be sustained either as an inspectior fee or as an excise for the use of the streets of the city It remains to consider whether it can be sustained as ar occupation tax. A State may, by appropriate legisla- SPROUT v. SOUTH BEND. 171 163 Opinion of the Court. tion, require payment of an occupation tax from one engaged in both intrastate and interstate commerce. Postal Telegraph Cable Co. v. Charleston, 153 U. S. 692; Osborne v. Florida, 164 U. S. 650; Kehrer n. Stewart, .197 U. S. 60; Watters v. Michigan, 248 U. S. 65; Raley & Bros. v. Richardson, 264 U. S. 157. Compare Interstate Busses Corporation v. Holyoke Street Ry. Co., 273 U. S. 45; Arnold v. Hanna, 276 U. S. 591. And it may delegate a part of that power to a municipality. Compare Postal Telegraph-Cable Co. v. Richmond, 249 U. S. 252, 257. But in order that the fee or tax shall be valid, it must appear that it is imposed solely on account of the intrastate business; that the amount exacted is not increased because of the interstate business done; that one engaged exclusively in interstate commerce would not be subject to the imposition ; and that the person taxed could discontinue the intrastate business without withdrawing also from the interstate business. Leloup n. Port of Mobile, 127 U. S. 640; Crutcher v. Kentucky, 141 U. S. 47, 58; Adams Express Co. v. New York, 232 U. S. 14, 30; Bowman v. Continental Oil Co., 256 U. S. 642, 647. Compare Williams v. Talladega, 226 U. S. 404, 417; Postal Telegraph-Cable Co. v. Richmond, 249 Ui S. 252. The Supreme Court of Indiana, far from construing the ordinance as applicable solely to busses engaged in intrastate commerce, assumed that it applied to busses engaged exclusively in interstate commerce and that Sprout was so engaged. The privilege of engaging in such commerce is one which a State cannot deny. Buck v. Kuykendall, 267 U. S. 307; Bush & Sons Co. v. Maloy, 267 U. S. 317. A State is equally inhibited from conditioning its exercise on the payment of an occupation tax. Objection under the commerce clause is made also to the requirement of liability insurance. There being grave dangers incident to the operation of motor vehicles, a State may require users of such vehicles on the public 172 OCTOBER TERM, 1927. Syllabus. 277 U. S. highways to file contracts providing adequate insurance for the payment of judgments recovered for certain injuries, resulting from their operation. Packard v. Banton, 264 U. S. 140. Compare Kane v. New Jersey, 242 U. S. 160, 167; Hess v. Pawloski, 274 U. S. 352; Clark v. Poor, 274 U. S. 554, 557. It may, consistently with the Federal Constitution, delegate by appropriate legislation a part of this power to a municipalty. Such provisions for insurance are not, even as applied to busses engaged exclusively in interstate commerce, an unreasonable burden on that commerce, if limited to damages suffered within the State by persons other than the passenger. Whether the insurance here prescribed is, because of its scope, obnoxious to the commerce clause, we need not inquire. Compare Adams Express Co. v. New York, 232 U. S. 14, 33; Michigan Public Utilities Commission v. Duke, 266 U. S. 570, 577. For the ordinance is void because of the imposition of the license fee. Reversed. GREAT NORTHERN RAILWAY COMPANY v. UNITED STATES et al. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA. No. 612. Argued April 27, 1928.—Decided May 14, 1928. 1. The special remedy given by the Urgent Deficiencies Act of October 22, 1913, for reviewing orders of the Interstate Commerce Commission by suit against the United States, applies only to orders dealing with subjects within the scope of the Commission’s duty to regulate commerce. P. 181. 2. This special remedy is inapplicable to a certificate issued by the Commission to the Secretary of the Treasury under § 209, Transportation Act, 1920, stating the Commission’s finding of the amount required of the United States to make good to a railroad company its guaranty of operating income during the six months following GT. NORTHERN RY. v. UNITED STATES. 173 172 Argument for Appellant. the termination of Federal Control, and stating also the aggregate amount theretofore certified, and thus showing (in this case) an overpayment by the Government. P. 182. 22 F. (2d) 865, affirmed. Appeal from a decree of the District Court dismissing, for want of jurisdiction, a bill brought by the Railway Company to annul two certificates issued by the Interstate Commerce Commission. Mr. F. G. Dorety, with whom Messrs. Thomas Balmer and Fletcher Rockwood were on the brief, for appellant. The Commission’s certificate is an “ order ” within the meaning of the Commerce Court and Urgent Deficiencies Acts. I. C. C. v. Northern Pacific Ry Co., 216 U. S. 538; I. C. C. v. D. L. & W. R. R. Co., 216 U. S. 531; Southern Pacific v. I. C. C., 219 U. S. 433; United States v. Difien-baugh, 222 U. S. 42; United States v. B. & 0. R. R. Co., 231 U. S. 274; Tap Line Cases, 234 U. S. 1; Philadelphia & Reading Ry. v. United States, 240 U. S. 334; Central R. R. v. United States, 257 U. S. 247; United States v. New York Central, 263 U. S. 603; I. C. C. v. Union Pacific R. R., 222 U. S. 541; United States v. Abilene & Southern Ry., 265 U. S. 274; I. C. C. v. L. & N. R. R., 227 U. S. 88. A few of the numerous cases in which the Court has held that it had jurisdiction, but declined to give the relief sought are Intermountain Rate Cases, 234 U. S. 476; Los Angeles Switching Case, 234 U. S. 234; United States v. Pennsylvania R. R., 266 U. S. 191. A recent case of this nature is C. C. C. & St. L. Ry. v. United States, 275 U. S. 404. Cases in which injunction has been denied because of lack of jurisdiction are cases in which the so-called order of the Commission did not change the status or obligations of any individual or body, and was, therefore, held to be not an order within the meaning of the statute. Procter & Gamble v. United States, 225 U. S. 282; Hooker 174 OCTOBER TERM, 1927. Argument for Appellant. 277 U. S. v. Knapp, 225 U. S. 302; Lehigh Valley R. R. Co. v. United States, 243 U. S. 412; United States v.-New River Coal Co., 265 U. S. 533; United States v. Illinois Central R. R., 244 U. S. 82; United States v. Los Angeles, etc., R. R., 273 U. S. 299. See further, United States v B. & 0. R. R., 231 U. S. 274; The Tap Line Cases, 234 U. S. 1; United States v. New York Central, 263 U. S. 603. It is not necessary that the act complained of constitute a command or a direction in order that the court may have jurisdiction. Chicago Junction Case, 264 U. S. 258; Colorado v. United States, 271 U. S. 153; Texas v. Eastern Texas R. R. Co., 258 U. S. 204; Home Furniture Co. n. United States, 271 U. S. 456; Venner v. Michigan Central R. R. Co., 271 U. S. 127. The situation is very similar to that in Dayton-Goose Creek Ry. v. United States, 263 U. S. 456. It is true that the cases where the court has declined to take jurisdiction or has assumed jurisdiction under the Urgent Deficiencies Act, are all cases arising under the Interstate Commerce Act. These cases then throw no light upon the question whether the order must be made under the Interstate Commerce Act. The right to enjoin unlawful acts or orders of administrative bodies or officials, has been recognized in 0. R. & N. Co. v. Fairchild, 224 U. S. 510; N. P. Ry. v. Department of Public Works, 268 U. S. 39. It is obvious therefore that the right to injunction applies in a proper case to an unlawful order or act, either of the Commission or of any other administrative body purporting to act under any law whatever. The only question is whether the case at bar is a proper case for injunction, and not whether the order purports to be made under one Act or another. Neither the Hepburn Act, nor the Commerce Court Act, nor the Urgent Deficiencies Act, restricts the jurisdiction of the courts to orders made under the Interstate Commerce Act. When Congress has conferred jurisdic- GT. NORTHERN RY. v. UNITED STATES. 175 172 Argument for the United States. tion on an inferior court in particular classes of cases, the court has jurisdiction in cases of that class which arise under statutes subsequently passed. In re Metzger, Fed. Cas. No. 9511. Just as the courts have power to review by injunction, orders of the Commission made under amendments to the Interstate Commerce Act passed, subsequent to the Urgent Deficiencies Act {Chicago Junction Case, supra; Colorado’ v. United States, supra; Texas n. Eastern Texas R. R. Co., supra; Venner v. Michigan Central R. R., supra), so has the court jurisdiction to review by injunction, orders made by the Commission under any other Acts giving powers to it. Mr. Blackburn Esterline, Assistant to the Solicitor General, with whom Solicitor General Mitchell was on the brief, for the United States. The amended certificate issued by the Commission to the Secretary of the Treasury is not an “ order.” Procter & Gamble v. United States, 225 U. S. 282; Lehigh Valley R. R. v. United States, 243 U. S. 412; United States v. Illinois Central R. R., 244 U. S. 82; Delaware & Hudson n. United States, 266 U. S. 438; New York etc. R. R. n. United States, 273 U. S. 652; United States v. Los Angeles etc. R. R., 273 U. S. 299. The amended certificate is not even directed to the Great Northern. Knowledge or notice of the certificate comes, to it through a demand made by the Secretary of the Treasury. Even if the order is evidence in a suit against the Great Northern, it would seem that it would be time enough to assail its validity when the certificate is brought forward in the suit. Suits may not be brought before the specially constituted District Court under Urgent Deficiencies Act to suppress evidence or a cause of action. Meeker v. Lehigh Valley, 236 U. S. 412; Mills v. Lehigh Valley, 238 U. S. 473; Spiller v. Atchison, T. & S. F., 253 U. S. 117; St. Louis Southwestern v. Commission, 264 U. S. 64; Pittsburgh de West Va. Ry. v. United States, 176 OCTOBER TERM, 1927. Argument for the Interstate Commerce Commission. 277 U. S. 6 F. (2d) 646; United States v. Los Angeles etc. R. R., supra. The transaction is between the Great Northern and the United States exclusively. Consent that the United States may be sued in such a transaction in the specially-constituted District Court is not found in the Urgent Deficiencies Act and does not exist. Minnesota v. Hitchcock, 185 U. S. 373; Oregon v. Hitchcock, 202 U. S. 60; Illinois Central R. R. v. Public Utilities Comm’n, 245 U. S. 493. The decree of the court would be no more than 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. I. C. C., 258 U. S. 158. In a suit to set aside an order of the Commission under Urgent Deficiencies Act, the United States is made by statute a necessary party, and this means that it is to stand in judgment as representing the public. Illinois Central R. R. v. Public Utilities Comm’n, 245 U. S. 493. In this case, the United States is sued in a money transaction with which Great Northern alone is concerned. Mr. Daniel W. Knowlton, with whom Mr. P. J. Farrell was on the brief, for the Interstate Commerce Commission. That special jurisdiction, created as an amendment to the Interstate Commerce Act, was intended solely for review of orders relating to commerce regulation directed to carriers subject to the regulatory authority, and was never intended to afford review of a certificate directed, not to the carriers subject to regulatory authority, but to the Secretary of the Treasury, and relating, not to matters of commerce regulation, but to a governmental guaranty significantly excluded by the Act of its creation, Transportation Act, 1920, from those portions of that Act that were named amendments to the Interstate Commerce Act. GT. NORTHERN RY. v. UNITED STATES. 177 172 Opinion of the Court. Los Angeles Valuation Case, 273 U. S. 299; Procter & Gamble v. United States, 225 U. S. 282. While the Urgent Deficiencies Act authorizes suits in name against the Government in respect of matters of commerce regulation, that authority cannot be consistently or harmoniously enlarged to embrace suits involving the public money, which are suits in substance as well as name, against the Government and, where authorized at all, are provided for before a special tribunal, or by jurisdiction conferred upon the district courts limiting the monetary amount of the claim. The court’s jurisdiction under the Urgent Deficiencies Act to enjoin orders of the Commission bears a reciprocal relationship to its jurisdiction to enforce such orders, and the Commission’s certificate, directed to the Secretary of the Treasury rather than to the carriers, and being, moreover, for the payment of money, clearly falls outside the enforcement side of the court’s special jurisdiction over regulatory orders and therefore should be reciprocally excluded from the enjoining side of the jurisdiction. The fact that the guaranty section is in substance a gratuity, and the fact that its terms, agreed to by the carriers, clothe the Commission with broad discretion in the premises without provision for appeal from its determination, rebut any possible implication that the Government intended that the Urgent Deficiencies Act should constitute its consent to be sued in respect of the amount of its gift. The Government’s consent to this suit cannot be found in any other legislation providing for suits against the United States in the district courts. Mr. Justice Brandeis delivered the opinion of the Court. This suit, under the Act of June 18, 1910, c. 309, 36 Stat. 539, as amended by Urgent Deficiencies Act of Octo- 5963°—29-------12 178 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. ber 22, 1913, c. 32, 38 Stat. 208, 220, was brought by the Great Northern Railway Company against the United States, in the federal court for Minnesota, to annul two certificates issued by the Interstate Commerce Commission to the Secretary of the Treasury, pursuant to § 209 of Transportation Act, 1920, February 28, 1920, c. 91, 41 Stat. 456, 464—468, as amended by Act of February 26, 1921, c. 72, 41 Stat. 1145. The Company claims that these certificates are orders of the Commission; that they were issued without authority of law; and that they are void. The United States and the Commission moved to dismiss on the ground that the certificates sought to be annulled are not orders of the Commission within the meaning of the Commerce Court and Urgent Deficiencies Acts; and that the United States had not consented to be sued. The case was heard before three judges who dismissed the bill for want of jurisdiction. 22 F. (2d) 865. Whether they erred in so doing is the only question presented by the appeal. Certificates under § 209 are an incident of the termination of the federal control of the railroads on March 1, 1920. They are provided for in Title II of Transportation Act, 1920. By § 209(c) of that Act, the United States guaranteed to each company that its railway operating income for the following six months should be not less than one-half of the amount of the annual compensation to which it was entitled during the period of federal control. Paragraph (g) provided that: “The Commission shall, as soon as practicable after the expiration of the guaranty period, ascertain and certify to the Secretary of the Treasury the several amounts necessary to make good the foregoing guaranty........” Paragraph (h) provided for the issue, during the guaranty period, of certificates for payment on account, if the carrier furnishes an adequately secured contract to repay to the United GT. NORTHERN RY. v. UNITED STATES. 179 172 Opinion of the Court. States any amount received in excess of that which shall be finally determined as the sum to which the carrier is entitled under the guaranty. Section 212, added by the Act of February 26, 1921, c. 72, 41 Stat. 1145, provided for payments on account after the expiration of the guaranty period, the Commission being authorized to “ make its certificate for any amount definitely ascertained by it to be due, and . . . thereafter in the same manner make further certificates, until the whole amount due has been certified.” Upon receipt of certificates the Secretary of the Treasury was directed “ to draw warrants in favor of each such carrier upon the Treasury of the United States, for the amount shown in such certificate as necessary to make good such guaranty.” Upon certificates of the Commission issued to the Secretary of the Treasury under paragraph (h), he paid the Company $6,500,000 in 1920. Upon certificate issued under § 212, he paid it $6,000,000 in 1921. Several years later, in the course of the proceedings for final settlement of the amount due the Company under § 209, the Commission issued to the Secretary of the Treasury the two certificates here in suit. Only the second of them is of importance. It certified that the total amount required to make good to the Company the guaranty provided for in § 209 was $11,170,214.02. Guaranty Settlement with Great Northern Railway Co. et al., 99 I. C. C. 231; 111 I. C. C. 318. As the Secretary of the Treasury had paid $12,500,000 to the Company, he demanded reimbursement, as an overpayment, of $1,329,785.98, being the difference between the aggregate amounts received by the Company and the total amount certified as payable under the guaranty. Pending settlement of that claim, the Government withheld payment to the Company of all amounts accruing for transportation services, but the payments were resumed upon the Company’s deposit of Liberty bonds as 180 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. collateral. Thereupon, this suit was brought by the Company to annul the certificates and to restrain the Government from enforcing its claim by sale of the Liberty bonds or otherwise. The function imposed upon the Commission by § 209 is solely that of determining the amount required to make good the Government’s guaranty. It is not an exertion of the delegated power to regulate interstate commerce. It is an incident of the World War—a temporary, non-recurrent task, which might appropriately have been performed for the Treasury by its Comptroller or auditors, or by other trusted official. Congress selected the Commission for this service, doubtless, because of its special fitness. For the Commission had knowledge of railroads and experience in railroad accounting; it had the custody of the records of railroad operations; and its staff was competent to make speedily the necessary investigations. Transportation Act, 1920, did not confer upon the Commission power to order anything in connection with the issue of the certificates. There is in the certificates no direction, no word of command. They are the recital of a finding of fact. They are addressed to the Secretary of the Treasury; and only to him. The form of the certificate expresses appropriately the character of the service performed by the Commission. The final certificate does not purport to declare that the carrier is indebted to the United States in any sum. It states the total amount required of the United States to make good the guaranty and the aggregate amount theretofore certified. It discloses the facts, but does not certify that there was an overpayment.1 Congress distinguished clearly, in fram- 1 The certificate reads (111 I. C. C. 318, 338-339): “ To The Secretary of the Treasury of the United States: . . . “2. The commission has ascertained, and hereby certifies to the Secretary of the Treasury, that the amount necessary to make good GT. NORTHERN RY. v. UNITED STATES. 181 172 Opinion of the Court. ing Transportation Act, 1920, between provisions which were amendments of the Interstate Commerce Act and those which, while relating to railroads, were not. The amendments were grouped under Title IV. The provisions here involved, which related solely to the termination of federal control, were grouped under Title II. Those which provided for the Railroad Labor Board, under Title HI. Because issuing certificates is not a part of the Commission’s delegated power to regulate commerce and is not an incident of such regulation, the special remedy provided by the Urgent Deficiencies Act is not available to review the legality or correctness of its action in doing so. The Company points out that the action of the Commission here in question was affirmative, not negative, as in Procter & Gamble Co. v. United States, 225 U. S. 282; that it relates to a matter of substance and not merely to a step in procedure, as in United States v. Illinois Central R. R. Co., 244 U. S. 82; that it determines legal rights and to said Great Northern Railway Company the guaranty provided by section 209 of the transportation act, 1920, is $11,170,214.02; . . . “3. The commission has heretofore certified to the Secretary of the Treasury as advances under section 209(h) to said Great Northern Railway Company an aggregate amount of $6,500,000, as follows: Certificate No. 65, June 25, 1920................. $3,000, 000 Certificate No. 225, August 31, 1920.............. 2,000,000 Certificate No. 276, November 4, 1920............. 1,500,000 and as partial payment to said Great Northern Railway Company under section 209(g), as amended by section 212, an amount of $6,000,000 on March 1, 1921, under certificate No. A-329. “ 4. The commission has made final determination as aforesaid of the amount of the guaranty provided for by section 209 of the transportation act, 1920. “ Dated this 8th day of June, 1926.” The two certificates here involved deal with the same subject matter. The issue of the second canceled the earlier one, which differed as to the amount due to the Company and which had contained a certification of the fact of overpayment. 99 I. C. C. 231, 234, 235. 182 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. obligations, and is not simply the tentative or final report of an investigation, as were the orders which we declined to review in Delaware & Hudson Co. v. United States, 266 U. S. 438, and United States n. Los Angeles & Salt Lake R. R. Co., 273 U. S. 299; and that its being entitled as a certificate rather than as an order is not fatal to the equity jurisdiction of the District Court under the Urgent Deficiencies Act. Compare Chicago Junction Case, 264 U. S. 258, 263; Colorado n. United States, 271 U. S. 153; Home Furniture Co. n. United States, 271 U. S. 456. But these considerations are irrelevant. For the inapplicability of the special remedy given by the Urgent Deficiencies Act is due to the fact that the certificate deals with a subject matter not within the scope of the Commission’s duty to regulate commerce, and hence, not within the purview of that remedy. In this respect, among others, it differs from the order involved in Dayton-Goose Creek Ry. Co. v. United States, 263 U. S. 456. It is said that, unless this remedy is available, the Company may be without redress. The argument is that the determination by the Commission of the amount required to make good the guaranty, may be likened to an award of arbitrators; that the ground of the attack upon the certificates is that they were made under a mistake of law; and that an award can be set aside for mistake of law only in equity, Hartford Fire Insurance Co. n. Bonner Mercantile Co., 44 Fed. 151; McLaurin v. McLauchlin, 215 Fed. 345. We have no occasion to enquire whether a remedy at law or some other remedy in equity is available. The mere fact that the certificate may be conclusive, if it be a fact, would not entitle the Company to a judicial review. Compare United States v. Babcock, 250 U. S. 328, 331; Work v. Rives, 267 U. S. 175. We find no reason for thinking that because Congress confided to the Commission the task of certifying the amount to be paid to carriers from the public treasury, as an incident to the World NECTOW v. CAMBRIDGE. 183 172 Argument for Defendants in Error. War, it thereby consented that the United States should be sued in the special proceeding in equity devised long before to control the Commission’s execution of its regular functions in enforcing the Interstate Commerce Act. Affirmed. NECTOW v. CITY OF CAMBRIDGE et al. ERROR TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. No. 509. Argued April 19, 1928.—Decided May 14, 1928. The inclusion of private land in a residential district under a zoning ordinance, with resulting inhibition of its use for business and industrial buildings to the serious damage of the owner, violates the Fourteenth Amendment if the health, safety, convenience or general welfare of the part of the city affected will not be promoted thereby. P. 188. 260 Mass. 441, reversed. Error to a judgment of the Supreme Judicial Court of Massachusetts which dismissed a bill brought in that court by Nectow for a mandatory injunction directing the city and its building inspector to1 pass upon an application to erect any lawful buildings upon his land without regard to an ordinance including it within a restricted residential district. Messrs. Judson Hannigan and John E. Hannigan for plaintiff in error. Mr. Peter J. Nelligan, with whom Messrs. J. Edward Nally and Joseph P. Lyons were on the brief, for defendants in error. The master does not find any unreasonable or arbitrary use of power or abuse of discretion on the part of the City Council in passing the zoning ordinance. Reinman n. 184 OCTOBER TERM, 1927. Argument for Defendants in Error. 277 U. S. Little Rock, 237 U. S. 171 ; Albion n. Toledo, 99 Oh. St. 416; Jardine v. Pasadena, 199 Cal. 64. The ordinance will be sustained in its application to the plaintiff’s land if it tends to promote the health, safety, convenience, and general welfare of the inhabitants. Zahn and Ross v. Board of Public Works, 195 Cal. 497; Cusack Co. n. Chicago, 242 U. S. 526. The preservation of the residential district to the west and north of the locus from the intrusion of business and incongruous commercial buildings is sufficient justification for the placing of the plaintiff’s land in a residential zone. Miller v. Board of Public Works, 195 Cal. 477. The principles justifying the establishment of residential zones, apply with equal force to the preserving of these zones once established. Welch v. Swasey, 193 Mass. 364; Wulf solin v. Burden, 281 N. Y. 288. The action of the city government in placing the plaintiff’s land in a residential district was a reasonable use of its discretion. Stillman v. Lynch, 56 Utah 540; Inspector of Buildings v. Stoklosa, 250 Mass. 52; Dobbins v. Los Angeles, 195 U. S. 223. It was necessary for the City Council to draw a line of demarcation between the thickly settled district lying to the west, northwest, and north of plaintiff’s land, and the mercantile district lying to the south, southeast, and east. Reinman v. Little Rock, 237 U. S. 171 ; Village of Euclid v. Ambler Realty Co., 272 U. S. 365. It would appear reasonable that the City Council should draw this line through the plaintiff’s land so as to preserve the residential character of Brookline Street north of the Ford factory and the residential character of Henry Street along the frontage of the locus upon said street. The fact that the inclusion of the plaintiff in error’s property in R-3 district rather than in a business zone depreciates its value, is not of controlling significance. Spector v. Building Inspector, 250 Mass. 63. NECTOW v. CAMBRIDGE. 185 183 Opinion of the Court. The plaintiff has suffered no greater disadvantage than may be suffered by any person whose land is on the border line between a business and a residential district. If the ordinance, as applied to the plaintiff’s land, is nullified, the owners of residential property opposite, would have no protection from damages caused by the erection of such commercial or manufacturing buildings as plaintiff may see fit to construct. Village of Euclid v. Ambler Realty Co., 272 U. S. 365. There is no finding that the land in question, taken with the adjoining land of the plaintiff, could not be used profitably for residential or other purposes. Jardine v. Pasadena, 199 Cal. 64. The question resolves itself into one of reasonableness. The Court should not substitute its opinion for that of the Legislature or City Council. Cusack Co. v. Chicago, 242 U. S. 526; Reinman v. Little Rock, 237 U. S. 171; Village of Euclid v. Ambler Realty Co., 272 U. S. 365. Mr. Justice Sutherland delivered the opinion of the Court. A zoning ordinance of the City of Cambridge divides the city into three kinds of districts: residential, business and unrestricted. Each of these districts is sub-classified in respect of the kind of buildings which may be erected. The ordinance is an elaborate one, and of the same general character as that considered by this Court in Euclid v. Ambler Co., 272 U. S. 365. In its general scope it is conceded to be constitutional within that decision. The land of plaintiff in error was put in district R-3, in which are permitted only dwellings, hotels, clubs, churches, schools, philanthropic institutions, greenhouses and gardening, with customary incidental accessories. The attack upon the ordinance is that, as specifically applied to plaintiff in error, it deprived him of his property without due process of law in contravention of the Fourteenth Amendment. 186 OCTOBER TERM, 1927. Opinion of the Court. 277 U. 8. The suit was for a mandatory injunction directing the city and its inspector of buildings to pass upon an application of the plaintiff in error for a permit to erect any lawful buildings upon a tract of land without regard to the provisions of the ordinance including such tract within a residential district. The case was referred to a master to make and report findings of fact. After a view of the premises and the surrounding territory, and a hearing, the. master made and reported his findings. The case came on to be heard by a justice of the court, who, after confirming the master’s report, reported the case for the determination of the full court. Upon consideration, that court sustained the ordinance as applied to plaintiff in error, and dismissed the bill. 260 Mass. 441. A condensed statement of facts, taken from the master’s report, is all that is necessary. When the zoning ordinance was enacted, plaintiff in error was and still is the owner of a tract of land containing 140,000 square feet, of which the locus here in question is a part. The locus contains about 29,000 square feet, with a frontage on Brookline street, lying west, of 304.75 feet, on Henry street, lying north, of 100 feet, on the other land of the plaintiff in error, lying east, of 264 feet, and on land of the Ford Motor. Company, lying southerly, of 75 feet. The territory lying east and south is unrestricted. The lands beyond Henry street to the north and beyond Brookline street to the west are within a restricted residential district. The effect of the zoning is to separate from the west end of plaintiff in error’s tract a strip 100 feet in width. The Ford Motor Company has a large auto assembling factory south of the locus; and a soap factory and the tracks of the Boston & Albany Railroad lie near. Opposite the locus, on Brookline street, and included in the same district, there are some residences; and opposite the locus, on Henry street, and in the same district, are other residences. The locus is now vacant, NECTOW v. CAMBRIDGE. 187 183 Opinion of the Court. although it was once occupied by a mansion house. Before the passage of the ordinance in question, plaintiff in error had outstanding a contract for the sale of the greater part of his entire tract of land for the sum of $63,000. Because of the zoning restrictions, the purchaser refused to comply with the contract. Under the ordinance, business and industry of all sorts are excluded from the locus, while the remainder of the tract is unrestricted. It further appears that provision has been made for widening Brookline street, the effect of which, if carried out, will be to reduce the depth of the locus to 65 feet. After a statement at length of further facts, the master finds “ that no practical use can be made of the land in question for residential purposes, because among other reasons herein related, there would not be adequate return on the amount of any investment for the development of -the property.” The last finding of the master is: “ I am satisfied that the districting of the plaintiff’s land in a residence district would not promote the health, safety, convenience and general welfare of the inhabitants of that part of the defendant City, taking into account the natural development thereof and the character of the district and the resulting benefit to accrue to the whole City and I so find.” It is made pretty clear that because of the industrial and railroad purposes to which the immediately adjoining lands to the south and east have been devoted and for which they are zoned, the locus is of comparatively little value for the limited uses permitted by the ordinance. We quite agree with the opinion expressed below that a court should not set aside the determination of public officers in such a matter unless it is clear that their action “ has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public 188 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. safety or the public welfare in its proper sense.” Euclid v. Ambler Co., supra, p. 395. An inspection of a plat of the city upon which the zoning districts are outlined, taken in connection with the master’s findings, shows with reasonable certainty that the inclusion of the locus in question is not indispensable to the general plan. The boundary line of the residential district before reaching the locus runs for some distance along the streets, and to exclude the locus from the residential district requires only that such line shall be continued 100 feet further along Henry street and thence south along Brookline street. There does not appear to be any reason why this should not be done. Nevertheless, if that were all, we should not be warranted in substituting our judgment for that of the zoning authorities primarily charged with the duty and responsibility of determining the question. Zahn v. Bd. of Public Works, 274 U. S. 325, 328, and cases cited. But that is not all. The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited, and other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare. Euclid v. Ambler Co., supra, p. 395. Here, the express finding of the master, already quoted, confirmed by the court below, is that the health, safety, convenience and general welfare of the inhabitants of the part of the city affected will not be promoted by the disposition made by the ordinance of the locus in question. This finding of the master, after a hearing and an inspection of the entire area affected, supported, as we think it is, by other findings of fact, is determinative of the case. That the invasion of the property of plaintiff in error was serious and highly injurious is clearly established; and, since a neces- SPRINGER v. PHILIPPINE ISLANDS. 189 183 Syllabus. sary basis for the support of that invasion is wanting, the action of the zoning authorities comes within the ban of the Fourteenth Amendment and cannot be sustained. Judgment reversed. SPRINGER et al. v. GOVERNMENT OF THE PHILIPPINE ISLANDS. AGONCILLO v. SAME. CERTIORARI TO THE SUPREME COURT OF THE PHILIPPINE ISLANDS. Nos. 564 and 573. Argued April 10, 1928.—Decided May 14, 1928. 1. Acts of the Philippine Legislature creating a coal company and a bank, the stock of which is largely owned by the Philippine government, provide that the power to vote the stock shall be vested in a “ Committee,” in the one case, and in a “ Board of Control,” in the other, each consisting of the Governor General, the President of the Senate, and the Speaker of the House of Representatives. Held, that the voting of the stock in the election of directors and managing agents of the corporations is an executive function, and that the attempt to repose it in the legislative officers named violates the Philippine Organic Act. P. 199. 2. In the Philippine Organic Act, which divides the government into three departments—legislative, executive, and judicial—the principle is implicit, as it is in state and federal constitutions, that these three powers shall be forever separate and distinct from each other. P. 201. 3. This separation and the consequent exclusive character of the powers conferred upon each of the three departments of the government, is basic and vital—not merely a matter of governmental mechanism. Id. 4. It may be stated as a general rule inherent in the American constitutional system, that, unless otherwise expressly provided or incidental to the powers conferred, the legislature cannot exercise either executive or judicial power; the executive cannot exercise either legislative or judicial power; and the judiciary cannot exercise either executive or legislative power. Id. 190 OCTOBER TERM, 1927. Syllabus. 277 U. S. 5. Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or to appoint the agents charged with the duty of enforcing them. The latter are executive functions. P. 202. 6. Not having the power of appointment, unless expressly granted or incidental to its powers, the legislature cannot engraft executive duties upon a legislative office, since that would be to usurp the power of appointment by indirection. Id. 7. The appointment of managers (in this instance corporate directors) of property or a business in which the government is interested, is essentially an executive act which the legislature is without capacity to perform, directly or through its members. P. 203. 8. Whether or not the members of the “ board ” or “ committee ” are public officers in the strict sense, they are at least public agents charged with executive functions and therefore beyond the appointing power of the legislature. Id. 9. The instances in which Congress has devolved on persons not executive officers the power to vote in non-stock corporations created for governmental purposes, lend no support to a construction of the Constitution which would justify Congressional legislation like that here involved, considering the limited number of such instances, the peculiar character of the institutions there dealt with, and the contrary attitude of Congress towards governmentally owned or controlled stock corporations. P. 204. 10. The powers here asserted by the Philippine Legislature are vested in the Governor General by the Organic Act? viz., by the provision vesting in him the supreme executive power, with general supervision and control over all the departments and bureaus of the government; the provision placing on him the responsibility for the faithful execution of the laws; and the provision that all executive functions of the government must be directly under him or within one of the executive departments under his supervision and control. P. 205. 11. Where a statute contains a grant of power enumerating certain things which may be done, and also a general grant of power which, standing alone, would include those things and more, the general grant may be given full effect if the context shows that the enumeration was not intended to be exclusive. P. 206. 12. In § 22 of the Organic Act, the clause in the form of a proviso placing all the executive functions directly under the Governor General or in one of the executive departments under his direc- SPRINGER v. PHILIPPINE ISLANDS. 191 189 Argument for Petitioners. tion and control, and the proviso preceding it which grants certain powers to the legislature, are both to be construed as independent and substantive provisions. P. 207. 13. An inference that Congress has approved an Act of the Philippine Legislature reported to it under § 10 of the Organic Act cannot be drawn from the failure of Congress to exercise its power to ’ annul, reserved in that section, where the Act reported contravenes the Organic Act and is therefore clearly void. P. 208. Affirmed. Certiorari, 275 U. S. 519, to two judgments of ouster rendered by the Supreme Court of the Philippine Islands in proceedings in the nature of quo warranto, which were brought in that court by the Philippine Government against the present petitioners, to test their right to be directors in certain corporations described in the opinion. Mr. John W. Davis, with whom Messrs. José A. Santos, James Ross, Quintin Paredes, and Claro M. Recto were on the briefs, for petitioners. The voting power of the government-owned stock in the National Coal Company is not an office, and all of respondent’s contentions as to an alleged invasion of the Governor-General’s asserted general power of appointing persons to public office are, for that reason, quite beside the point. Sheboygan County v. Parker, 3 Wall. 92; United States v. Hatch, 1 Pin. (Wis.) 182; United States v. Hartwell, 6 Wall. 385; United States v. Germaine, 99 U. S. 508; State v. Kennon, 7 Oh. St. 546; In the Matter of Oaths, 20 Johnson, 492; Bank of the United States v. Planters Bank, 9 Wheat. 904. ’ This latter case has been followed in Bank of Kentucky v. Wister, 3. Pet. 431; Briscoe v. Bank of Kentucky, 11 Pet. 323; Darrington v. Bank of Alabama, 13 How. 12; Curran v. Arkansas, 15 How. 304; Sloan Shipyards Corp’n v. U. S. Shipping Board, 258 U. S. 549, and in other cases. C. & D. Canal Co. v. United States, 250 U. S. 123; Shoemaker v. United States, 147 U. S. 282. 192 OCTOBER TERM, 1927. Argument for Petitioners. 277 U. S. The Philippine Legislature has all general legislative powers such as are exercised by States and Territories. The voting of the government-owned stock is merely a part of the machinery for the management of the corporation, and, under the Legislature’s power to create corporations for the attainment of objects within its powers and to provide for the organization of such corporations and for their management, the Legislature may confer the voting power of the corporate stock as it sees fit. Congress has often created corporations to act for it in the attainment of those objects that are within its powers and has often given over the voting power in such corporations to persons other than executive officers of the Government, or—what is the same thing where the corporations have been without capital stock—it has given over the management of the corporations to such persons. Examples of the latter sort are the Smithsonian Institution and the National Home for Disabled Soldiers. A more frequently used extra-governmental means for the attainment of Congressional objectives has been the privately owned stock company, such, for example, as those concerned in California v. Pacific R. R. Co., 127 U. S. 1, and Luxton v. North River Bridge Co., 153 U. S. 525. Plainly, corporations such as those involved in the two foregoing cases exercise the functions that some executive departments would exercise if Congress chose to 11 use its sovereign powers directly.” Yet, despite this fact and despite the fact that such corporations are instruments through which Congress exercises portions of its sovereign power, it has nevertheless been usual to confide to the private stockowners in such corporations the power of control through the stock-voting power. Government ownership, this Court has repeatedly held, is insufficient to blur the corporate lines that separate such corporations as that herein concerned from the government that has created them. Bank of the United States SPRINGER v. PHILIPPINE ISLANDS. 193 189 Argument for Petitioners. v. Planters Bank, 9 Wheat. 904; Bank of Kentucky v. Wister, 3 Pet. 431; Briscoe v. Bank of Kentucky, 11 Pet. 324; Darrington v. Bank of Alabama, 13 How. 12; Curran v. Arkansas, 15 How. 304; Sloan Shipyards Corp’n v. U. S. Shipping Board, 258 U. S. 549; United States n. Strang, 254 U. S. 491; Skinner & Eddy v. McCarl, 275 U. S. 1. Where the extra-governmental entity is chosen, the cases indicate that insofar as the management of its corporate affairs is concerned, the corporation so created is in the fullest degree a separate entity. The only blurring of the corporate lines has been in the extension of governmental privileges and protection to such corporations. Russel Motor Car Co. v. United States, 261 U. S. 514; United States v. Walter, 263 U. S. 15; Clallam County v. United States, 263 U. S. 341; U. S. Grain Corp’n v. Phillips, 261 U. S. 106; Emergency Fleet Corp’n v. Western Union, 275 U. S. 415. Conceding, arguendo, that the corporate entity of the National Coal Company may be disregarded and that the power of voting the government-owned stock may be regarded as a duty of caring for government property, that voting power, as such a duty, is nevertheless properly confided to legislative officers. It is well settled that under § 3 of Art. IV of the Constitution, neither the President nor the heads of any of the executive departments have any powers in respect to the use or disposal of public property apart from those given them by Congress. Pan American Petroleum Co. v. United States, 273 U. S. 456; Mammoth Oil Co. v. United States, 274 U. S. 13; United States v. Hare, Fed. Cas. No. 15,303; Knote v. United States, 10 Ct. Cis. 397; Flores v. United States, 18 Ct. Cis. 352; Lear v. United States, 50 Fed. 65; United States v. Nichol, Fed. Cas. No. 15,879. The authority of Congress may be given either generally in reference to a class of properties or specifically in reference to a particular property, and Congress can with-5963°—29—13 194 OCTOBER TERM, 1927. Argument for Petitioners. 277 U. 8. draw a pending contest over the right of entry of public lands from the jurisdiction of the land department and itself determine the rights of the parties involved. Em-blen v. Lincoln Land Co., 102 Fed. 559, affirmed, 184 U. S. 660. The powers of Congress in the care of government property are plenary. In that behalf the executive departments are no more than the agents or instrumentalities of Congress. It is plain that the duty of caring for government property, far from being “ surely executive,” is, in fact, legislative in character. The executive departments ordinarily perform the detail of such care; but to Congress belongs the power of direction and such direction may be as specific as Congress sees fit to make it. While the constitutional provision is not of course directly applicable to the Philippine Legislature, it and the decisions under it are important as showing the scope of legislative power in respect of the care, management, use and disposal of government property under the American theory of government. Officers of the National Coal Company are not officers of the Philippine Government, and the fact that the voting power of the government-owned stock is to be exercised for the purpose, inter alia, of selecting such officers, does not make that voting power a part of the Governor-General’s asserted power of appointing persons to public office. If voting the government-owned stock were an office, the President of the Senate and Speaker of the House of Representatives would be eligible to hold it. The Governor-General of the Philippine Islands has no general power of appointing persons to public office and the alleged 11 offices ” herein involved would not be within the powers of appointment specifically given to him under the Autonomy Act, even if they were prop- SPRINGER v. PHILIPPINE ISLANDS. 195 189 Argument for Respondent. erly regarded as “ offices ” within the meaning of that Act. The Philippine statutes here in question have received the implied sanction of Congress and should not be disturbed. Clinton v. Englebrecht, 13 Wall. 434; Gromer v. Std. Dredging Co., 224 U. S. 362; Tiaco v. Forbes, 228 U. S. 549; Chanco v. Imperial, 34 Phil. Rep. 329; United States v. Bull, 15 Phil. Rep. 31; Baca n. Perez, 8 N. M. 187; Gallardo v. Porto Rico Rwy. Co., 18 F. (2d) 918; Fajardo Sugar Co. v. Holcomb, 16 F. (2d) 92; Myers v. United States, 212 U. S. 52; Binns v. United States, 194 U. S. 486. Solicitor General Mitchell, with whom Messrs. Fred' erick C. Fisher, Wm. Cattron Rigby, Hugh C. Smith, Robert P. Reeder, Special Assistant to the Attorney General, John A. Hull, Judge Advocate General, U. S. A., and Delfin Jaranilla, Attorney General of the Philippine Islands, were on the brief, for respondent. The Acts of the Philippine Legislature, read in connection with other statutes relating to the Philippine National Bank, the National Coal Company, and corporations in general, have the effect of stripping the Governor General of all direction or control over the Bank or Coal Company and of vesting the direction of the management and operation of those institutions in representatives of the two Houses of the Legislature selected by those Houses. The President of the Senate and the Speaker of the House of Representatives are selected by those bodies and hold office during their pleasure. They, in turn, acting together on the so-called Board of Control, elect and remove the nianaging directors and agents of these corporations, and in the case of the Bank, they also directly participate with those officers and agents in conducting the bank’s affairs. The effect of these provisions 196 OCTOBER TERM, 1927. Argument for Respondent. 277 U. S. is that the majority in the Legislature, acting through representatives doing their bidding, from day to day direct and control the operations and management of these institutions. The selection and removal of the managing directors and officers of corporations, a majority of the stock of which is owned by the Government, and the direction of the operations of those corporations through the exercise of that power, are not legislative functions. They do not constitute the making or repealing of laws or anything incidental to such legislative action. The voting of the Government’s stock is itself not legislative, and the depriving the Governor General of all control of the operations of these corporations is in direct violation of that provision of the Organic Act contained in § 22, which provides that all executive functions must be under the Governor General or within one of the executive departments under his supervision and control. It is not material whether the relation of the Philippine Government to these corporations is proprietary or sovereign, or whether the corporations are engaged in performing sovereign governmental functions or conducting private business. The power of the Philippine Legislature over matters in which the Philippine Government acts in a proprietary capacity, is legislative. It has no more power to exercise administrative or executive functions over proprietary interests of the Government than it has over sovereign governmental functions, and the exclusion of the Legislature from participation in administrative or executive functions, and the granting of those functions to the Governor General and his subordinates, operate on all governmental matters whether proprietary or sovereign. If membership on the “ Board of Control ” or “ Committee ” is a separate post or position from that of Governor General or of President of the Senate or of Speaker SPRINGER v. PHILIPPINE ISLANDS. 197 189 Opinion of the Court. of the House of Representatives, then the selection by the Legislature or by either House of the persons to occupy that position is beyond legislative power, because in itself an executive act. If the functions to be exercised by members of the Board of Control or Committee are executive or administrative in character, the selection of those members is not a legislative act. The ultimate question here is again whether voting the stock and directing the affairs of these corporations are executive functions, and it is not important whether the position on the Board of Control or Committee is a separate office or post, or whether the Legislature has merely added certain duties to those of the President of the Senate and the Speaker of the House of Representatives. It may not make appointments to executive or administrative positions, and it may not confer executive or administrative functions on legislative officials. That Congress has not taken any action to affirmatively annul these statutes is of no consequence. The power reserved in the Organic Act to annul Acts of the Philippine Legislature, relates to valid Acts passed under authority of the Organic Act and consistent with it. It was never contemplated that Acts of the Philippine Legislature, void because in conflict with .the Organic Act, would become valid unless their invalidity be reiterated by Congress within a reasonable time. Mr. Justice Sutherland delivered the opinion of the Court. These cases, presenting substantially the same question, were argued and will be considered and disposed of together. In each case an action in the nature of quo warranto was brought in the court below challenging the right to hold office of directors of certain corporations organized under the legislative authority of the Philippine 198 OCTOBER TERM, 1927. Opinion of the Court. 277U.S. Islands, No. 564 involving directors of the National Coal Company and No. 573 involving directors of the Philippine National Bank. The National Coal Company was created by Act 2705, approved March 10, 1917, subsequently amended by Act 2822, approved March 5, 1919. The Governor-General, under the provisions of the amended act, subscribed on behalf of the Philippine Islands for substantially all of the capital stock. The act provides: “ The voting power of all such stock owned by the Government of the Philippine Islands shall be vested exclusively in a committee, consisting of the Governor-General, the President of the Senate and the Speaker of the House of Representatives.” The National Bank was created by Act 2612, approved February 4, 1916, subsequently amended by Act 2747, approved February 20, 1918, and Act 2938, approved January 30, 1921. The authorized capital of the bank, as finally fixed, was 10,000,000 pesos, consisting of 100,000 shares, of which, in pursuance of the legislative provisions, the Philippine Government acquired and owns 97,332 shares, the remainder being held by private persons. By the original act the voting power of the government-owned stock was vested exclusively in the Governor-General, but by the amended acts now in force that power was “ vested exclusively in a board, the short title of which shall be ‘ Board of Control,’ composed of the Governor-General, the President of the Senate, and the Speaker of the House of Representatives.” The Governor-General was also divested of the power of appointment of the President and Vice-President of the bank, originally vested in him, and their election was authorized to be made by the directors from among their own number. Provision was also made for a general manager, to be appointed or removed by the board of directors with the advice and consent of the Board of Control. The manager was to be chief executive of the bank, with an annual SPRINGER v. PHILIPPINE ISLANDS. 199 189 Opinion of the Court. salary to be fixed by the board of directors with the approval of the Board of Control. Further duties were conferred upon the Board of Control in connection with the management of the bank which it does not seem necessary to set forth. It is worthy of note that this voting power has been similarly devolved by the legislature in the case of at least four other corporations: The National Petroleum Company, by Act 2814; The National Development Company, by Act 2849; The National Cement Company, by Act 2855; and The National Iron Company, by Act 2862; and the suggestion of the Solicitor General that this indicates a systematic plan on the part of the legislature to take over, through its presiding officers, the direct control generally of nationally organized or controlled stock corporations would seem to be warranted. In pursuance of the first quoted provision, petitioners in No. 564 were elected directors of the National Coal Company by a vote of the government-owned shares cast by the President of the Senate and the Speaker of the House; and in pursuance of the second quoted provision, petitioners in No. 573 were elected directors of the National Bank in the same way. The Governor-General, challenging the validity of the legislation, did not participate in either election. While there are some differences between the two actions in respect of the facts, they are differences of detail which do not affect the substantial question to be determined. On behalf of the Philippine Government, respondent in both cases, it is contended that the election of directors and managing agents by a vote of the government-owned stock was an executive function entrusted by the Organic Act of the Philippine Islands to the Governor-General, and that the acts of the Legislature divesting him of that power and vesting it, in the one case, in a “ board,” and, in the other, in a “ committee,” the majority of which in 200 OCTOBER TERM, 1027. Opinion of the Court. 277 U. S. each instance consisted of officers and members of the Legislature, were invalid as being in conflict with the Organic Act. The court below sustained the contention of the Government and entered judgments of ouster against the petitioners in each case. The Congressional legislation referred to as the “ Organic Act” is the enactment of August 29, 1916, c. 416, 39 Stat. 545, which constitutes the fundamental law of the Philippine Islands and bears a relation to their governmental affairs not unlike that borne by a state constitution to the state. The act contains a bill of rights, many of the provisions of which are taken from the federal Constitution. It lays down fundamental rules in respect of taxation, shipping, customs duties, etc. Section 8 of the act provides, “ That general legislative power, except as otherwise herein provided, is hereby granted to the Philippine Legislature, authorized by this Act.” And by § 12 this legislative power is vested in a legislature, to consist of two houses, one the senate and the other the house of representatives. Provision is made (§§ 13, 14 and 17) for memberships, terms and qualifications of the members of each house. By § 21 it is provided “ that the supreme executive power shall be vested in an executive officer, whose official title shall be ‘ The Governor General of the Philippine Islands.’ ” He is given “ general supervision and control of all of the departments and bureaus of the government in the Philippine Islands as far as is not inconsistent with the provisions of this Act.” He is made “responsible for the faithful execution of the laws of the Philippine Islands and of the United States operative within the Philippine Islands.” Other powers of an important and comprehensive character also are conferred upon him. By § 22 the executive departments of the Philippine government, as then authorized by law, are continued until otherwise provided by the legislature. The legislature is authorized by appropriate legislation to , SPRINGER v. PHILIPPINE ISLANDS. 201 189 Opinion of the Court. “ increase the number or abolish any of the executive departments, or make such changes in the names and duties thereof as it may see fit,” and “ provide for the appointment and removal of the heads of the executive departments by the Governor General.” Then follows the proviso: “ That all executive functions of the government must be directly under the Governor General or within one of the executive departments under the supervision and control of the Governor General.” Section 26 recognizes the existing supreme court and courts of first instance of the Islands and continues their jurisdiction as theretofore provided, with such additional jurisdiction as shall thereafter be prescribed by law. Thus the Organic Act, following the rule established by the American constitutions, both state and federal, divides the government into three separate departments— the legislative, executive and judicial. Some of our state constitutions expressly provide in one form or another that the legislative, executive and judicial powers of the government shall be forever separate and distinct from each other. Other constitutions, including that of the United States, do not contain such an express provision. But it is implicit in all, as a conclusion logically following from the separation of the several departments. See Kil-bourn v. Thompson, 103 U. S. 168, 190-191. And this separation and the consequent exclusive character of the powers conferred upon each of the three departments is basic and vital—not merely a matter of governmental mechanism. That the principle is implicit in the Philippine Organic Act does not admit of doubt. See Abueva v. Wood, 45 Phil. Rep. 612, 622, 628 et seq. It may be stated then, as a general rule inherent in the American constitutional system, that, unless otherwise expressly provided or incidental to the powers conferred, the legislature cannot exercise either executive or judicial power; the executive cannot exercise either legislative or 202 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. judicial power; the judiciary cannot exercise either executive or legislative power. The existence in the various constitutions of occasional provisions expressly giving to one of the departments powers which by their nature otherwise would fall within the general scope of the authority of another department emphasizes, rather than casts doubt upon, the generally inviolate character of this basic rule. Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions. It is unnecessary to enlarge further upon the general subject, since it has so recently received the full consideration of this Court. Myers n. United States, 272 U. S. 52. Not having the power of appointment, unless expressly granted or incidental to its powers, the legislature cannot engraft executive duties upon a legislative office, since that would be to usurp the power of appointment by indirection; though the case might be different if the additional duties were devolved upon an appointee of the executive. Shoemaker v. United States, 147 U. S. 282, 300-301. Here the members of the legislature who constitute a majority of the “ board ” and “ committee,” respectively, are not charged with the performance of any legislative functions or with the doing of anything which is in aid of the performance of any such functions by the legislature. Putting aside for the moment the question whether the duties devolved upon these members are vested by the Organic Act in the Governor-General, it is clear that they are not legislative in character, and still more clear that they are not judicial.- The fact that they do not fall within the authority of either of these two constitutes logical ground for concluding that they do fall within that of the remaining one of the three among SPRINGER v. PHILIPPINE ISLANDS. 203 189 Opinion of the Court. which the powers of government are divided. Compare Myers n. United States, supra, pp. 117-118. Assuming, for present purposes, that the duty of managing this property, namely, the government-owned shares of stock in these corporations, is not sovereign but proprietary in its nature, the conclusion must be the same. The property is owned by the government, and the government in dealing with it whether in its quasi-sovereign or its proprietary capacity nevertheless acts in its governmental capacity. There is nothing in the Organic Act, or in the nature of the legislative power conferred by it, to suggest that the legislature in acting in respect of the proprietary rights of the government may disregard the limitation that it must exercise legislative and not executive functions. It must deal with the property of the government by making rules, and not by executing them. The appointment of managers (in this instance corporate directors) of property or a business is essentially an executive act which the legislature is without capacity to perform directly or through any of its members. Whether the members of the “ board ” or the “ committee ” are public officers in a strict sense we do not find it necessary to determine. They are public agents at least, charged with the exercise of executive functions and, therefore, beyond the appointing power of the legislature. Stockman n. Leddy, 55 Colo. 24, involved a case very much like that now under consideration. The state legislature had created a committee of its own members to investigate the rights of the state in the flowing waters therein. The committee was authorized to determine what steps were necessary to be taken to protect the rights of the state, to employ counsel, etc. There was no claim that the investigation was for the purpose of ascertaining facts to aid in future legislation or to assist the legislature in its legislative capacity, but it was for the pur 204 OCTOBER TERM, 1927. Opinion of the Court. 277 U. 8. pose of enabling the committee itself to reach a conclusion as to what should be proper to do in order to protect the rights of the state. The court, in holding the act unconstitutional, said (p. 31): “ In other words, the general assembly not only passed an act—that is, made a law—but it made a joint committee of the senate and the house as its executive agent to carry out that law. This is a clear and conspicuous instance of an attempt by the general assembly to confer executive power upon a collection of its own members.” And the court held that this was invalid under the provisions of the state constitution respecting the tripartite division of governmental powers. See also, Clark n. Stanly, 66 N. C. 59; State ex rel. Howerton v. Tate, 68 N. C. 546. Petitioners seek to draw a parallel between the power of Congress to create corporations as appropriate means of executing governmental powers and the acts of the Philippine legislature here under consideration. To what extent the powers of the two bodies in this respect may be assimilated we need not stop now to determine, since the power of the legislature to create the two corporations here involved is not doubted. But it is argued further that Congress in creating corporations for governmental purposes has sometimes devolved the voting power in such corporations upon persons other than executive officers. In the case of the Smithsonian Institution, cited as an example, Congress provided for a governing Board of Regents composed in part of members of the Senate and of the House. There are two or three other instances in respect of non-stock organizations of like character. On the other hand, as pointed out by the Solicitor General, in the case of governmentally organized or controlled stock corporations, Congress has uniformly recognized the executive authority in their management, generally providing in express terms that the shares shall be voted SPRINGER v. PHILIPPINE ISLANDS. 205 189 Opinion of the Court. by an executive officer, and in no instance attempting to grant such power to one or more of its members. Many instances of this kind are cited by the Solicitor General, but it is not necessary to repeat his enumeration. It is enough to say that, when we consider the limited number of acts of Congress which fall within the first class spoken of above, as well as the peculiar character of the institutions dealt with, and the contrary attitude of Congress toward corporations of a different character, such acts cannot be regarded as lending support to a construction of the Constitution which would justify Congressional legislation like that here involved. As this Court said in Myers v. United States, supra, pp. 170-171. 11 In the use of Congressional legislation to support or change a particular construction of the Constitution by acquiescence, its weight for the purpose must depend not only upon the nature of the question, but also upon the attitude of the executive and judicial branches of the Government, as well as upon the number of instances in the execution of the law in which opportunity for objection in the courts or elsewhere is afforded. When instances which actually involve the question are rare, or have not in fact occurred, the weight of the mere presence of acts on the statute book for a considerable time, as showing general acquiescence in the legislative assertion of a questioned power, is minimized.” And we are further of the opinion that the powers asserted by the Philippine Legislature are vested by the Organic Act in the Governor-General. The intent of Congress to that effect is disclosed by the provisions of that act already set forth. Stated concisely these provisions are: that the supreme executive power is vested in the Governor-General, who is given general supervision and control over all the departments and bureaus of the Philippine government; upon him is placed the responsi 206 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. bility for the faithful execution of the laws of the Philippine Islands; and, by the general proviso, already quoted, all executive functions must be directly under the Governor-General or within one of the executive departments under his supervision and control. These are grants comprehensive enough to include the powers attempted to be exercised by the legislature by the provisions of law now under review. Myers v. United States, supra. It is true that § 21 contains a specific provision that the Governor-General shall appoint such officers as may now be appointed by the Governor-General, or such as he is authorized by this act to appoint, or whom he may hereafter be authorized by law to appoint. And it is said that the effect of this is to confine the Governor-General’s powers of appointment within the limits of this enumeration. The general rule that the expression of one thing is the exclusion of others is subject to exceptions. Like other canons of statutory construction it is only an aid in the ascertainment of the meaning of the law and must yield whenever a contrary intention on the part of the law-maker is apparent. Where a statute contains a grant of power enumerating certain things which may be done and also a general grant of power which standing alone would include these things and more, the general grant may be given full effect if the context shows that the enumeration was not intended to be exclusive. See for example, Ford v. United States, 273 U. S. 593, 611; Portland v. N. E. T. & Co., 103 Me. 240, 249; Grubbe v. Grubbe, 26 Or. 363, 370; Swick v. Coleman, 218 Ill. 33, 40; Lexington ex rel. v. Commercial Bank, 130 Mo. App. 687, 692; McFarland v. M. K. & T. Ry. Co., 94 Mo. App. 336, 342. Applying these principles, we are unable to accept the contention that the enumeration here in question is exclusive in the face of the general provisions already quoted and particularly of that one which declares that SPRINGER v. PHILIPPINE ISLANDS. 207 189 Opinion of the Court. all executive functions are vested directly in the Governor-General or under his supervision and control. It is true that this provision is in the form of a proviso, and it is argued that it is, therefore, nothing more than a definition by negation of the power given to the legislature in the same section. But an analysis of the section, which is reproduced so far as pertinent in the margin,* shows, though not wholly beyond doubt, that the power given to the legislature is itself a proviso. In other words, both the grant of power to the legislature and the grant of power to the Governor-General are in form provisos to the general provisions of § 22 which precede them. It is difficult to assign to either proviso the general purpose of that form of legislation, which is merely to qualify the operation of the general language which proceeds it. We think rather that both provisos are to be construed as independent and substantive provisions. As this Court has more than once pointed out, it is not an uncommon practice in legislative proceedings to include independent pieces of legislation under the * Sec. 22. That, except as provided otherwise in this Act, the executive departments of the Philippine government shall continue as now authorized by law until otherwise provided by the Philippine Legislature. When the Philippine Legislature herein provided shall convene and organize, the Philippine Commission, as such, shall cease and determine, and the members thereof shall vacate their offices as members of said commission: Provided, That the heads of executive departments shall continue to exercise their executive functions until the heads of departments provided by the Philippine Legislature pursuant to the provisions of this Act are appointed and qualified. The Philippine Legislature may thereafter by appropriate legislation increase the number or abolish any of the executive departments, or make such changes in the names and duties thereof as it may see fit, and shall provide for the appointment and removal of the heads of the executive departments by the Governor-General: Provided, That all executive functions of the government must be directly under the Governor General or within one of the executive departments under the supervision and control of the Governor General. , . . 208 OCTOBER TERM, 1927. Opinion of the Court. 277U.S. head of provisos. See Georgia Banking Co. v. Smith, 128 U. S. 174,181; White v. United States, 191 U. S. 545, 551; Cox v. Hart, 260 U. S. 427, 435. Finally, it is urged that since no action has been taken by Congress under § 19 of the Organic Act, requiring all laws enacted by the Philippine Legislature to be reported to Congress, which reserves the power to annul them, the legislation now under review has received the implied sanction of Congress and should not be disturbed. Clinton v. Englebrecht, 13 Wall. 434, 446, is cited in support of this contention. In that case jurors were summoned into the legislative courts of the territory of Utah under the provisions of acts of Congress applicable only to the courts of the United States. This Court held that the jurors were wrongly summoned and a challenge to the array should have been sustained. The Court, however, proceeded also to examine the jury law enacted by the territorial legislature, and declared it to be valid. In the course of the opinion it was said that since the simple disapproval by Congress at any time would have anulled that law, it was not unreasonable to infer that it was approved by that body. In the later case of Clayton v. Utah Territory, 132 U. S. 632, an act of the same territory providing for the appointment of certain officers, was held to be void as in contravention of a provision of the territorial Organic Act vesting in the Governor the power to appoint such officers. Dealing with the same point here made, this Court said (p. 642): “ It is true that in a case of doubtful construction the long acquiescence of Congress and the general government may be resorted to as some evidence of the proper construction, or of the validity, of a law. This principle is more applicable to questions relating to the construction of a statute than to matters which go to the power of the legislature to enact it. At all events, it can hardly be admitted as a general proposition that under the power of SPRINGER v. PHILIPPINE ISLANDS. 209 189 Holmes and Brandeis, J J., dissenting. Congress reserved in the organic acts of the Territories to annul the acts of their legislatures the absence of any action by Congress is fo be construed to be a recognition of the power of the legislature to pass laws in conflict with the act of Congress under which they were created.” The inference of an approval by Congress from its mere failure to act at best rests upon a weak foundation. And we think where the inference is sought to be applied, as here, to a case where the legislation is clearly void as in contravention of the Organic Act it cannot reasonably be indulged. To justify the conclusion that Congress has consented to the violation of one of its own acts of such fundamental character, will require something more than such inaction upon its part as really amounts to nothing more than a failure affirmatively to declare such violation by a formal act. Whether the Philippine Legislature, in view of the alternative form of the provision vesting all executive functions directly under the Governor-General or within one of the executive departments under his supervision and control, might devolve the voting power upon the head of an executive department or an appointee of such head, we do not now decide. The legislature has not undertaken to do so; and in the absence of such an attempt it necessarily results that the power must be exercised directly by the Governor-General or by his appointee, since he is the only executive now definitely authorized by law to act. The judgments in both cases are Affirmed. Mr. Justice Holmes. The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other. Property must not be taken without compensation, but with 5963°—29-------14 210 OCTOBER TERM, 1927. Holmes and Brandeis, JJ., dissenting. 277 U. S. the help of a phrase, (the police power) some property may be taken or destroyed for public use without paying for it, if you do not take too much. When we come to the fundamental distinctions it is still more obvious that they must be received with a certain latitude or our government could not go on. To make a rule of conduct applicable to an individual who but for such action would be free from it is to legislate—yet it is what the judges do whenever they determine which of two competing principles of policy shall prevail. At an early date it was held that Congress could delegate to the Courts the power to regulate process, which certainly is lawmaking so far as it goes. Wayman v. Southard, 10 Wheat. 1, 42. Bank of the United States v. Halstead, 10 Wheat. 51. With regard to the Executive, Congress has delegated to it or to some branch of it the power to impose penalties, Oceanic Steam Navigation Co. v. Stranahan, 214 U. S. 320; to make conclusive determination of dutiable values, Passavant v. United States, 148 U. S. 214; to establish standards for imports, Buttfield v. Stranahan, 192 U. S. 470; to make regulations as to forest reserves, United States v. Grimaud, 220 U. S. 506, and other powers not needing to be stated in further detail. Houston v. St. Louis Independent Packing Co., 249 U. S. 479. Union Bridge Co. v. United States, 204 U. S. 364. Ex parte Kollock, 165 U. S. 526. Congress has authorized the President to suspend the operation of a statute, even one suspending commercial intercourse with another country, Field v. Clark, 143 U. S. 649, and very recently it has been decided that the President might be given power to change the tariff. J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394. It is said that the powers of Congress cannot be delegated, yet Congress has established the Interstate Commerce Commission, which does legislative, judicial and executive acts, only softened by a quasi; makes regulations, Intermountain Rate Cases, SPRINGER v. PHILIPPINE ISLANDS. 211 189 Holmes and Brandeis, JJ., dissenting. 234 U. S. 476, 486, issues reparation orders, and performs executive functions in connection with Safety Appliance Acts, Boiler Inspection Acts, &c. Congress also has made effective excursions in the other direction. It has withdrawn jurisdiction of a case after it has been argued. Ex parte McCardle, 7 Wall. 506. It has granted an amnesty, notwithstanding the grant to the President of the power to pardon. Brown v. Walker, 161 U. S. 591, 601. A territorial legislature has granted a divorce. Maynard v. Hill, 125 U. S. 190. Congress has declared lawful an obstruction to navigation that this Court has declared unlawful. Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421. Parallel to the case before us, Congress long ago established the Smithsonian Institution, to question which would be to lay hands on the Ark of the Covenant; not to speak of later similar exercises of power hitherto unquestioned, so far as I know. It does not seem to need argument to show that however we may disguise it by veiling words we do not and cannot carry out the distinction between legislative and executive action with mathematical precision and divide the branches into watertight compartments, were it ever so desirable to do so, which I am far from believing that it is, or that the Constitution requires. The only qualification of such latitude as otherwise would be consistent with the threefold division of power, is the proviso in § 22 of the organic Act “ that all executive functions of the Government must be directly under the Governor General or within one of the executive departments,” &c. Act of August 29, 1916, c. 416, 39 Stat. 553, U. S. C., Title 48, § 1114. That does not appear to me to govern the case. The corporations concerned were private corporations which the legislature had power to incorporate. Whoever owned the stock, the corporation did not perform functions of the Government. This 212 OCTOBER TERM, 1927. McReynolds, J., dissenting. 277 U. S. would be plain if the stock were in private hands, and if the Government bought the stock from private owners the functions of the corporations would not be changed. If I am right in what I have said I think that ownership would not make voting upon the stock an executive function of the Government when the acts of the corporation were not. I cannot believe that the legislature might not have provided for the holding of the stock by a board of private persons with no duty to the Government other than to keep it informed and to pay over such dividends as might accrue. It is said that the functions of the Board of Control are not legislative or judicial and therefore they must be executive. I should say rather that they plainly are no' part of the executive functions of the Government but rather fall into the indiscriminate residue of matters within legislative control. I think it would be lamentable even to hint a doubt as to the legitimacy of the action of Congress in establishing the Smithsonian as it did, and I see no sufficient reason for denying the Philippine legislature a similar power. Mr. Justice Brandeis agrees with this opinion. Mr. Justice McReynolds. I think the opinion of the majority goes much beyond the necessities of the case. The “ Organic Act ” is careful to provide: “ That all executive functions of the government must be directly under the Governor General or within one of the executive departments under the supervision and control of the Governor General.” A good reason lies behind this limitation which does not apply to our Federal or State governments. From the language employed, read in the light of all the circumstances, perhaps it is possible to spell out enough to overthrow the challenged legislation. Beyond that it is unnecessary to go. FEDERAL BANK v. MITCHELL. 213 Counsel for Parties. FEDERAL INTERMEDIATE CREDIT BANK OF COLUMBIA, SOUTH CAROLINA, v. MITCHELL ET AL. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. No. 456. Argued March 13, 1928.—Decided May 14, 1928. 1. A suit to collect promissory notes exceeding the jurisdictional amount, brought by a Federal Intermediate Credit «Bank chartered under the Act of March 4, 1923, is, because of the plaintiff’s federal incorporation, a suit arising under the laws of the United States and within the jurisdiction of the District Court under Jud. Code § 24 (1). P. 214. 2. Such jurisdiction is not affected by § 12, Act of February 13, 1925, since ownership by the United States of all of the plaintiff’s capital stock brings the case within the proviso of that section. P. 217. 3. Section 201 (c) of the Act of March 4, 1923, supra, in the provision that each such bank “for purposes of jurisdiction shall be deemed a citizen of the State where it is located,” governs the places where suit may be brought against such banks, but is in nowise inconsistent with the general rule that district courts have jurisdiction of suits brought by or against corporations organized under an Act of Congress on the ground that they are controversies arising under federal law. Hermann v. Edwards, 238 U. S. 107, distinguished. Pp. 315, 317. 4. In the absence of enactments plainly expressing that purpose, Congress will not be held to have intended to restrict that jurisdiction. P. 317. 21 F. (2d) 51, reversed. Certiorari, 275 U. S. 516, to a judgment of the Circuit Court of Appeals, which affirmed a judgment of the District Court dismissing an action by the Bank for want of jurisdiction. Mr. D. W. Robinson, with whom Messrs. R. H. Welch and Randolph Murdaugh were on the briefs, for petitioner. 214 OCTOBER TERM, 1927. Opinion of the Court. 277U.S. Mr. George L. Buist, with whom Mr. Wm. J. Thomas was on the brief, for respondents. Mr. Justice Butler delivered the opinion of the Court. Petitioner is a Federal Intermediate Credit Bank chartered under an Act of March 4, 1923, c. 252, 42 Stat. 1454. All its capital stock is owned by the United States. It sued in the federal court for the eastern district of South Carolina to recover more than $3,000.00 claimed on certain promissory notes. The bank is located at Columbia in that State. The defendants were citizens of the State and residents within the district. Jurisdiction was invoked on the ground that the suit is one where the matter in controversy arises under the laws of the United States. § 24(1), Judicial Code, U. S. C., Tit. 28, § 41. The district court held that it was without jurisdiction and dismissed the case. The Circuit Court of Appeals affirmed. 21 F. (2d) 51. The judicial power of the United States extends to all cases arising under its Constitution and laws. Art. III. By § 2 of an Act of March 3, 1875, c. 137, 18 Stat. 470, which in substance was carried into the Judicial Code as § 24(1), the district courts were given jurisdiction of all suits where the matter in controversy exceeds a specified amount and arises under federal law. A suit by or against a corporation created under an Act of Congress is one arising under the laws of the United States. Osborn v. United States Bank, 9 Wheat. 738, 816. American Bank & Trust Co. n. Federal Reserve Bank, 256 U. S. 350. Sowell v. Federal Reserve Bank, 268 U. S. 449. State citizenship does not result from the mere creation of a corporation under federal law. Bankers Trust Co. n. Texas Pacific Ry., 241 U. S. 295, 309. Section 201(c) of the Act under which petitioner was organized provides that each such bank “ for purposes of jurisdiction shall be deemed a citizen of the State where it is located.” Sec- FEDERAL BANK v. MITCHELL. 215 213 Opinion of the Court. tion 12 of the Act of February 13, 1925, c. 229, 43 Stat. 936, 941, declares that no district court shall have jurisdiction of any suit by or against any corporation upon the ground that it was incorporated by or under an Act of Congress: “Provided, That this section shall not apply to any suit . . . brought by or against a corporation incorporated by or under an Act of Congress wherein the Government of the United States is the owner of more than one-half of its capital stock.” U. S. C., Tit. 28, § 42. The lower courts, erroneously conceiving that § 201(c) is in respect of Federal Intermediate Credit Banks the equivalent of § 24(16) of the Judicial Code applying to national banking associations, held that the former operates to take suits by or against petitioner out of the general rule, and that the proviso in the Act of February 13, 1925, does not apply to it. That conclusion resulted from a misunderstanding of the decision in Herrmann v. Edwards, 238 U. S. 107. That was a suit brought in the United States court by a stockholder of a national bank against its directors to compel them to reimburse the bank for funds wrongfully diverted. It was a controversy arising under the laws of the United States within the meaning of § 24(1); and if that provision stood alone, the district court would have had jurisdiction. But § 4 of the Act of July 12, 1882, c. 290, 22 Stat. 162, 163, declared that jurisdiction of such suits, except those between a bank and the United States or its officers and agents, “ shall be the same as, and not other than, the jurisdiction for suits by or against banks not organized under any law of the United States which do or might do banking business where such national banking associations may be doing business when such suits may be begun.” Section 4 of the Act of March 3, 1887, c. 373, 24 Stat. 552, 554 (reenacted August 13, 1888, 25 Stat. 433, 436), provided that national banking associations should for the purposes of all actions by or against them “ be deemed citizens of 216 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. the States in which they are respectively located; and in such cases the circuit and district courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same State”; and it declared that the provisions of the section should not affect jurisdiction of federal courts in cases commenced by the United States or by direction of an officer thereof or in cases for winding up such banks. Section 24(16) of the Judicial Code gives district courts original jurisdiction of all cases commenced by the United States or by direction of any officer thereof against any national banking association and of cases for winding up any such bank, and of all suits brought by any banking association to enjoin the Comptroller of the Currency or any receiver acting under his direction. And it provides that all such banking associations “ shall for the purposes of all other actions by or against them ... be deemed citizens of the States in which they are respectively located.” This court held that, as to suits not within the specified exceptions, national banks were by the Acts of 1882 and 1887 put on the same basis in respect of jurisdiction as if they had not been organized under an Act of Congress, and that as to such suits federal incorporation was not a ground for jurisdiction. That conclusion rests upon the direct and affirmative expression of these Acts. And the decision makes it plain that while § 24(16) adopted a different form of expression, it was in substance a reenactment of the earlier provisions in respect of such jurisdiction. The provisions of the Judicial Code are to be construed as continuations of existing statutes, and no change of intent is to be implied unless clearly made manifest. § 294, Judicial Code. The Judicial Code did not restore jurisdiction that the Acts of 1882 and 1887 had taken away. FEDERAL BANK v. MITCHELL. 217 213 • Opinion of the Court. The state citizenship granted by § 201(c) governs the places where suit may be brought against such banks. § 51, Judicial Code, U. S. C., Tit. 28, § 112. Cf. Shaw v. Quincy Mining Company, 145 U. S. 444. In re Keasbey & Mattison Company, 160 U. S. 221, 229. Matter of Dunn, 212 U. S. 374, 388. But it is in nowise inconsistent with the general rule that district courts have jurisdiction of suits brought by or against corporations organized under an Act of Congress on the ground that they are controversies arising under federal law. It is firmly established that, in the absence of enactments plainly expressing that purpose, Congress will not be held to have intended to restrict that jurisdiction. Herrmann v. Edwards, supra, 118. Bankers Trust Co. v. Texas & Pacific Ry., supra, 303. That Congress is accustomed to use direct and unmistakable language to effect such important changes in the law is well illustrated by the Acts of 1882 and 1887; by § 5 of the Act of January 28, 1915, c. 22, 38 Stat. 803, 804, providing that no court of the United States shall have jurisdiction of any suit by or against any railroad company upon the ground that such company was incorporated under an Act of Congress, and by § 12 of the Act of February 13, 1925. The Government owns all the capital stock of petitioner and suits by or against it are plainly within the reasons which prompted the enactment of the proviso in § 12. There is no warrant for an inference that by § 201(c) Congress intended to take suits by or against Federal Intermediate Credit Banks out of the general rule. Judgment reversed. 218 OCTOBER TERM, 1927. Argument for Plaintiff in Error. 277 U. S. PANHANDLE OIL COMPANY v. MISSISSIPPI ex rel. KNOX, ATTORNEY GENERAL. ERROR TO THE SUPREME COURT OF MISSISSIPPI. No. 288. Argued March 5, 1928.—Decided May 14, 1928. 1. A state tax imposed on dealers in gasoline for the privilege of selling, and measured at so many cents per gallon of gasoline sold, is void under the Federal Constitution as applied to sales to instrumentalities of the United States, such as the Coast Guard Fleet and a Veterans’ Hospital. P. 222. 2. The substance and legal effect is to tax the sale, and thus burden and tax the United States, exacting tribute on its transactions for the support of the State. Id. 3. Such an exaction infringes the right of the dealer to have the constitutional independence of the United States in respect of such purchases remain untrammeled. Id. 147 Miss. 663, reversed. Error to a judgment of the Supreme Court of Mississippi, sustaining a suit brought by the State of Mississippi to recover taxes assessed on sales of gasoline made by the defendant, plaintiff in error. Mr. George Butler for plaintiff in error. The Acts in question, as construed, are void in that they impose a direct burden and tax upon the activities and instrumentalities of the Federal Government. McCulloch v. Maryland, 4 Wheat. 316; Dobbins v. Erie County, 16 Pet. 435; Osborn v. Bank, 9 Wheat. 138; Ohio v. Thomas, 173 U. S. 276; Johnson v. Maryland, 254 U. S. 51; Gillespie v. Oklahoma, 257 U. S. 501; Metcalf v. Mitchell, 269 U. S. 514; Crandall v. Nevada, 6 Wall. 35; Crutcher v. Kentucky, 141 U. S. 47; Western Union v. Kansas, 216 U. S. 1; Western Union v. Texas, 105 U. S. 460; Philadelphia, etc., Steamship Co. v. Pennsylvania, 122 U. S. 326; Galveston, etc., R. R. Co. v. Texas, 210 U. S. 217; Standard Oil Co. v. Graves, 249 PANHANDLE OIL CO. v. KNOX. 219 218 Argument for Defendant in Error. U. S. 389; Askren v. Continental Oil Co., 252 U. S. 444; Bowman v. Continental Oil Co., 256 U. S. 642; Indian Territory Oil Co. v. Oklahoma, 240 U. S. 522; Wagner v. Covington, 251 U. S. 95; St. Louis R. R. Co. v. Arkansas, 235 U. S. 230; Fidelity & Deposit Co. v. Pennsylvania, 240 U. S. 319. Mr. J. L. Byrd, Assistant Attorney General of Mississippi, with whom Mr. Rush H. Knox, Attorney General, was on the brief, for defendant in error. The mere fact that a private individual does business with an instrumentality of the Federal Government, does not clothe him with immunity from taxation which is given to the Federal Government and its instrumentalities; and the fact that such a person is required to pay the tax for engaging in business does not and cannot hamper or burden any instrumentality of the Federal Government. Fidelity & Deposit Co. v. Pennsylvania, 240 U. S. 319; Baltimore Ship Bldg. Co. v. Mayor of Baltimore, 195 U. S. 375; Choctaw, 0. & G. R. R. Co. v. Mackey, 256 U. S. 531; Gromer v. Standard Dredging Co., 224 U. S. 362; Metcalf v. Mitchell, 269 U. S. 514. It is admitted by the demurrer, that the tax was not collected from the United States Government. Therefore, we say if the collection of the tax from the Government, or the collection of an amount for the gasoline sufficient to include the tax, would be void, we do not have that question here for the reason that the Government has not paid any tax and the State is not demanding a tax from the Government, but is demanding a tax from the distributor or dealer in gasoline for the right to engage in the business. Plaintiff in error has no right to raise the question. No pretense is made that it is a part of the United States Government or an instrumentality of the Government. Therefore, the question as to whether or not the Govern- 220 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. ment will pay an amount sufficient to yield a reasonable profit plus the tax, is a matter of private contract, and it is not mandatory on the Government to purchase this gasoline at a stipulated price, but it can drive any bargain it desires, and neither is it mandatory on the plaintiff in error to sell to the Government with the tax added or without the tax added, it all being a matter of contract. A person who would strike down a state statute as being violative of the Federal Constitution, must show that he is within the class of persons with respect to whom the Act is unconstitutional, and that the alleged unconstitutional feature injures him. Heald, Executor, n. District of Columbia, 254 U. S. 20. Mr. Justice Butler delivered the opinion of the Court. Chapter 116 of the Laws of Mississippi of 1922 provided that “ any person engaged in the business of distributing gasoline, or retail dealer in gasoline, shall pay for the privilege of engaging in such business an excise tax of 1^ [one cent] per gallon upon the sale of gasoline . . . ,” except that sold in interstate commerce or purchased outside the State and brought in by the consumer for his own use. Chapter 115, Laws of 1924, increased the tax to three cents and c. 119, Laws of 1926, made it four cents per gallon. Since some time in 1925 petitioner has been engaged in that business. The State sued to recover taxes claimed on account of sales made by petitioner to the United States for the use of its Coast Guard Fleet in service in the Gulf of Mexico and its Veterans’ Hospital at Gulfport. Some of the sales were made while the Act of 1924 was in force and some after the rate had been increased by the Act of 1926. Accordingly the demand was for three cents a gallon on some and four cents on the rest. Petitioner defended on the ground that these statutes, if construed to impose taxes on such sales, are PANHANDLE OIL CO. v. KNOX. 221 218 Opinion of the Court. repugnant to the federal Constitution. The court of first instance sustained that contention and the State appealed. The Supreme Court held the exaction a valid privilege tax measured by the number of gallons sold; that it was not a tax upon instrumentalities of the federal government and that the United States was not entitled to buy such gasoline without payment of the taxes charged dealers. 147 Miss. 663. The United States is empowered by the Constitution to maintain and operate the fleet and hospital. Art. I, § 8. That authorization and laws enacted pursuant thereto are supreme (Art. VI); and, in case of conflict, they control state enactments. The States may not burden or interfere with the exertion of national power or make it a source of revenue or take the funds raised or tax the means used for the performance of federal functions. McCulloch v. Maryland, 4 Wheat. 316, 425, et seq. Dobbins v. The Commissioners of Erie County, 16 Pet. 435, 448. Ohio v. Thomas, 173 U. S. 276. Choctaw & Gulf R. R. v. Harrison, 235 U. S. 292. Indian Oil Co. v. Oklahoma, 240 U. S. 522. Johnson v. Maryland, 254 U. S. 51. Clallam County n. United States, 263 U. S. 341, 344. North-western Mutual Life Ins. Co. v. Wisconsin, 275 U. S. 136. New Brunswick v. United States, 276 U. S. 547. The strictness of that rule was emphasized in Gillespie v. Oklahoma, 257 U. S. 501, 505. The right of the United States to make such purchases is derived from the Constitution. The petitioner’s right to make sales to the United States was not given by the State and does not depend on state laws; it results from the authority of the national government under the Constitution to choose its own means and sources of supply. While Mississippi may impose charges upon petitioner for the privilege of carrying on trade that is subject to the power of the State, it may not lay ariy tax upon transactions by which the United States secures the things desired for its governmental purposes. 222 OCTOBER TERM, 1927. Holmes, Brandeis, and Stone, JJ., dissenting. 277 U. S. The validity of the taxes claimed is to be determined by the practical effect of enforcement in respect of sales to the government. Wagner v. City of Covington, 251 U. S. 95, 102. A charge at the prescribed rate is made on account of every gallon acquired by the United States. It is immaterial that the seller and not the purchaser is required to report and make payment to the State. Sale and purchase constitute a transaction by which the tax is measured and on which the burden rests. The amount of money claimed by the State rises and falls precisely as does the quantity of gasoline so secured by the Government. It depends immediately upon the number of gallons. The necessary operation of these enactments when so construed is directly to retard, impede and burden the exertion by the United States of its constitutional powers to operate the fleet and hospital. McCulloch v. Maryland, supra, 436. Gillespie v. Oklahoma, supra, 505. Jaybird Mining Co. v. Weir, 271 U. S. 609, 613. To use the number of gallons sold the United States as a measure of the privilege tax is in substance and legal effect to tax the sale. Telegraph Co. v. Texas, 105 U. S. 460. Frick v. Pennsylvania, 268 U. S. 473, 494. And that is to tax the United States—to exact tribute on its transactions and apply the same to the support of the State. The exactions demanded from petitioner infringe its right to have the constitutional independence of the United States in respect of such purchases remain untrammeled. Osborn n. United States Bank, 9 Wheat. 738, 867. Telegraph Co. n. Texas, supra. Cf. Terrace v. Thompson, 263 U. S. 197, 216. Petitioner is not liable for the taxes claimed. Judgment reversed. ' Mr. Justice Holmes. The State of Mississippi in 1924 and 1926 imposed upon distributors and retail dealers of gasoline, for the PANHANDLE OIL CO. v. KNOX. 223 218 Holmes, Brandeis, and Stone, JJ., dissenting. privilege of engaging in the business, an excise tax of three cents and four cents respectively per gallon sold in the State. The Supreme Court of the State declares it to be a privilege tax but points out that whether this tax is on the privilege or on the property it is imposed before the gasoline has left the dealer’s hands. The plaintiff in error, a dealer, was sued by the State for certain sums that were due under the statutes. It pleaded that the sales in respect of which the tax was demanded were sales to the United States for the use of its Coast Guard and Veterans’ Hospital, that these being instrumentalities of the government it did not include the amount of the tax in the price charged, and that the statute did not and could not tax the dealer for them consistently with the Constitution of the United States. The Supreme Court of the State upheld the tax and pointed out the extreme consequences to which a different decision might lead. It seems to me that the State Court was right. I should say plainly right, but for the effect of certain dicta of Chief Justice Marshall which culminated in or rather were founded upon his often quoted proposition that the power to tax is the power to destroy. In those days it was not recognized as it is today that most of the distinctions of the law are distinctions of degree. If the States had any power it was assumed that they had all power, and that the necessary alternative was to deny it altogether. But this Court which so often has defeated the attempt to tax in certain ways can defeat an attempt to discriminate or otherwise go too far without wholly abolishing the power to tax. The power to tax is not the power to destroy while this Court sits. The power to fix rates is the power to destroy if unlimited, but this Court while it endeavors to prevent confiscation does not prevent the fixing of rates. A tax is not an unconstitutional regulation in every case where an absolute prohibition of sales would be one. Hatch v. Reardon, 204 U. S. 152, 162. 224 OCTOBER TERM, 1927. Holmes, Brandeis, and Stone, JJ., dissenting. 277U.S. To come down more closely to the question before us, when the Government comes into a State to purchase I do not perceive why it should be entitled to stand differently from any other purchaser. It avails itself of the machinery furnished by the State and I do not see why it should not contribute in the same proportion that every other purchaser contributes for the privileges that it uses. It has no better or other right to use them than anyone else. The cost of maintaining the State that makes the business possible is just as necessary an element in the cost of production as labor or coal. If the plaintiff in error had paid the tax and had added it to the price, the Government would have had nothing to say. It could take the gasoline or leave it but it could not require the seller to abate his charge even if it had been arbitrarily increased in the hope of getting more from the Government than could be got from the public at large. But in • fact the Government has not attempted to say anything in this case, which is simply that of a dealer trying to cut down a legitimate tax on his business because certain purchasers proposed to use the goods in a certain way, although so far as the sale was concerned they were free to turn the gasoline into the ocean, use it for private purposes or sell it again. It does not appear that the Government would have refused to pay a price that included the tax if demanded, but if the Government had refused, it would not have exonerated the seller. Pierce Oil Corporation v. Hopkins, 264 U. S. 137, 139. An imperfect analogy with taxation that affects interstate commerce is relied upon. Even the law on that subject has been liberalized since the decision of most of the cases cited. Sonneborn Brothers n. Cureton, 262 U. S. 506. But obviously it does not follow from the invalidity of a tax directly burdening interstate commerce that a tax upon a domestic seller is bad because he may be able to shift the burden to a purchaser, even PANHANDLE OIL CO. v. KNOX. 225 218 McReynolds, J., dissenting. though an agency of the Government, who is willing to pay the price with the tax and who has no rational ground for demanding favor. I am not aware that the President, the Members of Congress, the Judiciary or, to come nearer to the case in hand, the Coast Guard or the officials of the Veterans’ Hospital, because they are instrumentalities of government and cannot function naked and unfed, hitherto have been held entitled to have their bills for food and clothing cut down so far as their butchers and tailors have been taxed on their sales; and I had not supposed that the butchers and tailors could omit from their tax returns all receipts from the large class of customers to which I have referred. The question of interference with Government, I repeat, is one of reasonableness and degree and it seems tc me that the interference in this case is too remote. Metcalf & Eddy n. Mitchell, 269 U. S. 514. Mr. Justice Brandeis and Mr. Justice Stone agree with this opinion. Mr. Justice McReynolds. I am unable to think that every man who sells a gallon of gasoline to be used by the United States thereby becomes a federal instrumentality, with the privilege of claiming freedom from taxation by the State. The doctrine of immunity is well established, but it ought not to be extended beyond the reasons which underlie it. Its limitations were well pointed out fifty years ago in Railroad Company v. Peniston, 18 Wall. 5, 30, 31—“ It cannot be that a State tax which remotely affects the efficient exercise of a Federal power is for that reason alone inhibited by the Constitution. To hold that would be to deny to the States all power to tax persons or property. Every tax levied by a State withdraws from the reach of Federal taxation a portion of the property 5963°—29------15 226 OCTOBER TERM, 1927. Statement of the Case. 277 U. S. from which it is taken, and to that extent diminishes the subject upon which Federal taxes may be laid. The States are, and they must ever be, coexistent with the National government. Neither may destroy the other. Hence the Federal Constitution must receive a practical construction. Its limitations and its implied prohibitions must not be extended so far as to destroy the necessary powers of the States, or prevent their efficient exercise.” Mr. Justice Stone concurs in these views. BUZYNSKI v. LUCKENBACH STEAMSHIP COMPANY, INCORPORATED, et al. certiorari to the circuit court of appeals for the FIFTH CIRCUIT. No. 534. Argued March 19, 1928.—Decided May 14, 1928. 1. Section 33 of the Merchant Marine Act incorporated into the maritime law in favor of injured “ seamen ” the applicable provisions of the Employers’ Liability Act and its amendments, and these may be enforced either in suits in admiralty or actions at law. P. 228. 2. A stevedore engaged in stowing cargo upon a vessel, is a “ seaman ” within the meaning of that section and, under applicable provisions of the Liability Act, may recover from the stevedoring company employing him for an injury caused by the negligence of a fellow-servant. Id. 3. Where the Circuit Court of Appeals erroneously reverses a judgment upon one question without deciding another upon which its correctness also depends, the case may be reversed for the error and remanded to that court for decision of the other question. Id. 19 F. (2d) 871, reversed. Certiorari, 275 U. S. 518, to a judgment of the Circuit Court of Appeals, which reversed a judgment of the District Court on a libel in admiralty for personal injuries. BUZYNSKI v. LUCKENBACH S. S. CO. 227 226 Opinion of the Court. Mr. W. E. Price, with whom Mr. James W. Wayman was on the brief, for petitioner. Mr. J. Newton Rayzor, with whom Mr. Mart H. Royston was on the brief, for respondents. Mr. Justice Sanford delivered the opinion of the Court. The petitioner, Karl Buzynski, brought a libel in personam in admiralty in the federal District Court for Southern Texas against the Luckenbach Steamship Co., the owner of the Steamship Edgar F. Luckenbach, and the Texas Contracting Co., to recover damages for personal injuries suffered by him while working as a stevedore for the Contracting Co., an independent contractor engaged in loading cargo on the steamship while at dock in the port of Galveston. He was awarded a judgment against the two Companies jointly, 12 F. (2d) 92. This was reversed by the Circuit Court of Appeals, 19 F. (2d) 871. Shortly after Buzynski had started to work, and while he was removing a cover from one of the hatches on the ship, he was struck and severely injured, without fault on his part, by a chain which fell from the end of the boom of a derrick at this hatch, which was used in loading the cargo. The accident was caused by the starting in motion, in a manner not shown by direct evidence, of a winch belonging to the ship which connected with and controlled the movement of the boom. The winchman who operated the winch was an employee of the Contracting Co. and a fellow servant of Buzynski. The District Court was of opinion that the accident resulted from a defect in the winch for which both Companies were responsible. The Circuit Court of Appeals was of opinion that the evidence showed no defect in the 228 OCTOBER TERM, 1927. Opinion of the Court. 277 U. 8. winch for which either of the Companies was liable, and that, although there was evidence from which it might reasonably be inferred that the accident was caused by negligence of the winchman or of another stevedore, nevertheless the Contracting Co. would not be liable for the negligence of such fellow servant. We granted this writ of certiorari on account of this ruling of the Circuit Court of Appeals as to the negligence of a fellow servant; and no other question need be considered here. It is settled by this Court that § 33 of the Merchant Marine Act, 1920,1 incorporated into the maritime law in favor of injured “ seamen ” the applicable provisions of the Employers Liability Act2 and its amendments, and that these may be enforced either in suits in admiralty or actions at law. Panama R. R. Co. v. Johnson, 264 U. S. 375, 388; Engel v. Davenport, 271 U. S. 33, 35; Panama R. R. Co. v. Vasquez, 271 U. S. 557, 560; Baltimore S. S. Co. v. Phillips, 274 U. S. 316, 324; Messel v. Foundation Co., 274 U. S. 427, 434. And in Internat’l Stevedoring Co. v. Haverty, 272 U. S. 50*, 52, we held that the word “seamen” as used in § 33 included a stevedore engaged in the maritime work of stowing cargo upon a vessel, and that under the applicable provisions of the Employers Liability Act, he could recover from the stevedoring company for an injury caused by the negligence of a fellow servant. The view of the Circuit Court of Appeals that the Contracting Co. would not be liable for the negligence of a fellow servant, was erroneous, and its judgment must be reversed. But since it did not determine whether the accident was in fact due to such negligence, or to some other cause, the case will be remanded to that court with 141 Stat. 988, c. 250. 2 35 Stat. 65, c. 149. UNITED STATES v. GOLDMAN. 229 226 Argument for the United States. instructions to determine this question and take further proceedings in conformity with this opinion. See Cole v. Ralph, 252 U. S. 286, 290; Gerdes v. Lustgarten, 266 U. S. 321, 327. Reversed and remanded. UNITED STATES v. GOLDMAN et al. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO. No. 723. Argued April 10, 1928.—Decided May 14, 1928. 1. A criminal contempt, committed by violation of an injunction decreed by a federal court, is an offense against the United States; and an information brought by the United States for the punishment of such a contempt is a “ criminal case ” within the meaning of the Criminal Appeals Act. P. 236. 2. A motion to dismiss an information of criminal contempt raising the bar of the statute of limitations upon facts appearing upon the face of the information, is equivalent to a special plea in bar setting up those facts, and a judgment sustaining the motion is reviewable under the Criminal Appeals Act, as a judgment sustaining a special plea in bar. Id. 3. A person charged with criminal contempt is not put in jeopardy prior to the beginning of the trial by entry of a preliminary order to take testimony for use at the trial. P. 237. 4. Prosecution of a criminal contempt committed by violating an injunction decree entered in a suit brought by the United States under the Anti-Trust Act, is not barred in one year under § 25 of The Clayton Act, but in three years under § 1044 Rev. Stats. Id. Reversed. Error, under the Criminal Appeals Act, to a judgment of the District Court dismissing an information for contempt. Assistant to the Attorney General Donovan, with whom Solicitor General Mitchell, and Messrs. Porter R. Chandler, Rdlstone R. Irvine, and W. Houston Kenyon, Special 230 OCTOBER TERM, 1927. Argument for the United States. 277 U. S. Assistants to the Attorney General, were on the brief, for the United States. This Court has jurisdiction of this case under the Criminal Appeals Act of 1907. United States v. Sang es, 144 U. S. 310; United States v. Kissel, 218 U. S. 601; United States n. Barber, 219 U. S. 72; United States v. Rabino-wich, 238 U. S. 78; United States v. Oppenheimer, 242 U. S. 85; United States v. Noveck, 271 U. S. 201; United States v. Storrs, 272 U. S. 652; United States v. Celestine, 215 U. S. 278; United States n. Thompson, 251 U. S. 407. Contempts are criminal cases within the meaning of the Act. Gompers n. United States, 233 U. S. 604; Ex parte Grossman, 267 U. S. 87; Michaelson v. United States, 266 U. S. 42; Myers v. United States, 264 U. S. 95. The third section of the Criminal Appeals Act, relating to pleas in bar, is applicable to criminal cases begun by information as well as to those begun by indictment. United States v. Borger, 7 Fed. 193; Bailey v. Kalamazoo Publishing Co., 40 Mich. 251 ; cf. The Queen v. Steel, L. R. 2 Q. B. D. 37; United States n. Celestine, 215 U. S. 278; United States v. Oppenheimer, 242 U. S. 85; United States v. Keitel, 211 U. S. 370; Gompers v. United States, 233 U. S. 604. The “ motion to dismiss ” filed on behalf of defendants below was a special plea in bar within the meaning of the Criminal Appeals Act. United States v. Thompson, 251 U. S. 407; United States v. Oppenheimer, supra; United States n. Rabinowich, 238 U. S. 78; United States v. Barber, 219 U. S. 72; United States v. Cook, 17 Wall. 168; United States v. Noveck, 271 U. S. 201. The defendants in error have not been in jeopardy within the meaning of the Criminal Appeals Act. Taylor v. United States, 207 U. S. 120; Kepner v. United States, 195 U. S. 100; United States n. United Shoe Machinery Co., 198 Fed. 870. UNITED STATES v. GOLDMAN. 231 229 Argument for Defendants in Error. Section 25 of the Clayton Act, imposing a one-year period of limitation in certain classes of contempts, has no application to criminal contempts prosecuted by the United States. Gompers v. United States, 233 U. S. 604; Michaelson v. United States, 266 U. S. 42. The legislative history of the Clayton Act supports the Government’s contention. The contention of the Government is also supported by the language of the U. S. Code. Mr. Robert R. Nevin, with whom Messrs. Ezra M. Kuhns, Edward H. Green, E. H. Sykes, and Frank F. Dinsmore were on the brief, for defendants in error. At common law, the Government would unquestionably have had no right of appeal. This Court is a court of limited jurisdiction, and this statute grants it jurisdiction in a narrowly limited class of cases. The right of appeal therein given is unique, in that it provides for an absolute right of appeal from the District Court to this Court. Thus, the statute is in derogation of the common law in broadening the power of the Government against the right of the citizen; and it is a very limited statute giving an extraordinary right of appeal in very special and carefully-defined circumstances. The statute must, therefore, be strictly construed, and this Court has consistently so held. United States v. Weissman, 266 U. S. 377; United States v. Keitel, 211 U. S. 371. This proceeding is not a criminal case, within the meaning of the Criminal Appeals Act. Ex parte Fisk, 113 U. S. 713; Myers v. United States, 264 U. S. 95. Distinguishing Gompers n. United States, 233 U. S. 604; Ex parte Grossman, 267 U. S. 87; and Michaelson v. United States, 266 U. S. 42. There has been no decision or judgment sustaining a special plea in bar within the meaning of the Criminal 232 OCTOBER TERM, 1927. Argument for Defendants in Error. 277 U. S. Appeals Act. United States v. Barber, 219 U. S. 72; United States v. Storrs, 272 U. S. 652. The words “ special plea in bar ” have long since acquired ,a well-settled meaning in the law. Those pleas appeared first in the civil law and subsequently in the criminal law. The essential and fundamental characteristic of a special plea (whether it be in bar or in abatement) is that it denies the right of the Government to succeed by reason of facts extrinsic to the indictment. Starkie, 1 Cr. Pl., p. 349; 2 Bishop’s New Crim. Pro., 2d ed. p. 583; Farley n. Kittson, 120 U. S. 303. The distinction between demurrers or motions to dismiss, on the one hand, and pleas, on the other, is clear. The distinction has been clearly recognized by Congress in the Criminal Appeals Act. It is true that the defense of the statute of limitations has usually been raised in pleadings that are properly called “ special pleas in bar,” rather than by demurrers or by motions to dismiss. That, however, is merely due to an accident rather than to anything inherent in their nature. The statute of limitations customarily pleaded is found in Rev. Stats., § 1044; and that is restricted by Rev. Stats., § 1045 so as not to apply to any person fleeing from justice. Therefore, whenever a defendant has desired the benefit of that statute of limitations, his pleading, of necessity, had to be a special plea in bar setting up the additional fact not appearing in the indictment, viz., that the defendant was not a fugitive from justice. United States v. Cook, 17 Wall. 168; United States v. Barber, 219 U. S. 72. The function of a special plea in bar is to set up new matter. If this were not true, the careful distinction that Congress has drawn between the first and second subdivisions, on the one hand, and the third subdivision on the other, would be meaningless. This Court has but recently held that the words “ a special plea in bar ” are UNITED STATES v. GOLDMAN. 233 229 Opinion of the Court. used in their technical sense. United States v. Storrs, 272 U. S. 652; United States v. Gompers, 233 U. S. 604; United States v. Novek, 271 U. S. 201; United States v. Rabinowich, 238 U. S. 78. The statute of limitations relied on is § 25 of the Clayton Act. It will be noted that this contains no such limitations as are found in Rev. Stats., §§ 1044 and 1045; it calls for no such pleading. Accordingly, all the facts necessary for the defense appeared upon the face of the information, and the defendants, therefore, did not have to plead a special plea in bar setting up any additional fact. In reality, if they had attempted to plead a special plea in bar, their pleading would not have been such. The defendants have been put in jeopardy. Jones v. Mould, 151 Iowa 599; Brown v. Farley, 38 N. J. Eq. 186; Kepner v. United States, 195 U. S. 100; Grafton v. United States, 206 U. S. 333; United States v. Oppenheimer, 242 U. S. 85; Merchants, etc. Co. v. Board of Trade, 201 Fed. 20; Myers v. United States, 264 U. S. 95. These proceedings are barred by § 25 of the Clayton Act. Michaelson v. United States, 266 U. S. 42; I. C. C. v. Baird, 194 U. S. 25. Mr. Justice Sanford delivered the opinion of the Court. An information presented by the United States to the District Court charged Jacob A. Goldman and others with criminal contempts committed by violating an injunction that had been granted by the court in a suit in equity brought by the United States against the National Cash Register Co. and others to enforce the Sherman Anti-Trust Act. On motion of the defendants in error the information was dismissed as to them on the ground that under § 25 of the Clayton Act1 the prosecution* was 1 38 Stat. 730, c. 323; U. S. C., Tit. 28, § 390. 234 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. barred by the statute of limitations of one year. The United States sued out this direct writ of error under the Criminal Appeals Act.2 The questions here are: 1st, whether this Court has jurisdiction under the writ of error; and 2nd, if so, whether the one year statute of limitations is applicable. The information showed upon its face that the alleged contempts were committed by the defendants in error more than one year, but less than three years, prior to its presentment. They entered pleas of not guilty. In anticipation of and preparation for the trial a special examiner was appointed to take, transcribe and report to the court such testimony as the parties might offer, with the provision and understanding that at the trial the parties might rely on such portion of this testimony as might be desired and also introduce additional testimony, either oral or documentary. The testimony taken by the examiner was lodged with the District Judge, and, in accordance with a nunc pro tunc order, endorsed as “ Filed with the court pending trial in open court.” Before the trial the defendants in error3 moved to dismiss the charges against them on the ground that it appeared on the face of the information that the proceeding for contempt was instituted more than one year after the date of the alleged acts complained of. The United States demurred to this motion on the ground that, treating it as a special plea in bar, the matters therein contained were not sufficient in law to bar the prosecution of the information. The court, likewise treating the motion to dismiss as a special plea in bar raising the question of the statute of limitations, overruled the demurrer and dismissed the information as to the defendants in error on the ground that the prosecution was barred by the statute of limitations. 2 34 Stat. 1246, c. 2564; U. S. C., Tit. 18, § 682. 3 The United States had previously agreed to dismiss the contempt proceeding against all the other defendants except one. UNITED STATES v. GOLDMAN. 235 229 Opinion of the Court. 1. The Criminal Appeals Act provides that a writ of error may be taken by the United States from the district courts direct to this Court “ in all criminal cases, in the following instances, to-wit: . . . From the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy.” The defendants in error challenge our jurisdiction under the present writ of error upon the grounds that this is not a criminal case, that the judgment was not one sustaining a special plea in bar, and that they had been put in jeopardy. We cannot sustain this contention. While a proceeding instituted by the United States for the punishment of a criminal contempt committed by a violation of an injunction is not “ a criminal prosecution ” within the provisions of the Sixth Amendment relating to venue in a jury trial, Myers n. United States, 264 U. S. 95, 105, such a criminal contempt is “ an offense against the United States ” whose prosecution is subject to the statute of limitations applicable to such offenses, Gompers v. United States, 233 U. S. 604, 611, and which, as such an offense, may be pardoned by the President under Article II of the Constitution, Ex parte Grossman, 267 U. S. 87, 115. The only substantial difference between such a proceeding for criminal contempt and a criminal prosecution is that in the one the act complained of is the violation of a decree and in the other the violation of a law. Michaelson v. United States, 266 U. S. 42, 67. In Gompers v. United States, supra, 610, this Court said, in language which was quoted with approval in Ex parte Grossman, supra, 116: “It is urged . . . that contempts cannot be crimes, because, although punishable by imprisonment and therefore, if crimes, infamous, they are not within the protection of the Constitution and the amendments giving a right to trial by jury &c. to persons charged with such crimes. ... It does not follow that contempts of the class under consideration are not 236 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. crimes, or rather, in the language of the statute, offenses, because trial by jury as it has been gradually worked out and fought out has been thought not to extend to them as a matter of constitutional right. These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech. So truly are they crimes that it seems to be proved that in the early law they were punished only by the usual criminal procedure . . . , and that at least in England it seems that they still may be and preferably are tried in that way.” And we think it clear that informations brought by the United States for the punishment of criminal contempts constituting offenses against the United States are “ criminal cases ” within the meaning of the Criminal Appeals Act, in as real and substantial a sense as ordinary criminal prosecutions for the punishment of crimes. See Bessette v. Conkey Company, 194 U. S. 324, 335 et seq. Whether the judgment sustaining the motion of the defendants in error and dismissing the information on the ground that the prosecution was barred by the statute of limitations, was a “ judgment sustaining a special plea in bar ” within the meaning of the Act, is to be determined not by form but by substance. United States v. Thompson, 251 U. S. 407, 412. The material question in such cases is the effect of the ruling sought to be reviewed. It is immaterial that the plea was erroneously designated as a plea in abatement instead of a plea in bar, United States v. Barber, 219 U. S. 72, 78, or that the ruling took the form of granting a motion to quash which was in substance a plea in bar, United States v. Oppenheimer, 242 U. S. 85, 86, United States v. Thompson, supra, 412. Here the motion to dismiss raised the bar of the statute of limitations upon the facts appearing on the face of the information, and was equivalent to a special plea in bar UNITED STATES v. GOLDMAN. 237 229 Opinion of the Court. setting up such facts. And the effect of sustaining the motion was the same as if such a special plea in bar had been interposed and sustained. It is also clear that as the court had merely entered a preliminary order for the taking of testimony for use at the trial, and had not commenced its sitting for the trial, the defendants in error had not then been placed in jeopardy. 2. Finding, therefore, that we have jurisdiction under the writ of error, we proceed to consider the contention of the United States that the prosecution of the information was not barred by the limitation of one year prescribed in § 25 of the Clayton Act. In Gompers N. United States, supra, 611, decided in May, 1914, it was settled that prosecutions for criminal contempts committed by violations of injunctions, were barred by the general three years’ limitation applicable to non-capital crimes under R. S. § 1044.4 And the sole question to be considered is whether this has been changed by § 25 of the Clayton Act, passed in October, 1914. The provisions of the Clayton Act relating to the punishment of criminal contempt are in §§ 21 to 25, inclusive. Sec. 21 provides “ That any person who shall willfully disobey any lawful writ, process, order, rule, decree, or command of any district court of the United States . . . by doing any act or thing therein, or thereby forbidden to be done by him, if the act or thing so done by him be of such character as to constitute also a criminal offense under any statute of the United States, or under the laws of any State in which the act was committed, shall be proceeded against for his said contempt as hereinafter provided.” Sec. 22 relates to the procedure, trial, punishment, etc., in proceedings for the punishment of “ such contempt; ” Sec. 23 to the allowance of writs of error. 4 The amendment made to that section by the Act of 1921, 42 Stat. 220, c. 124, U. S. C., Tit. 18, § 582, is not here material. 238 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. Sec. 24 provides 11 That nothing herein contained shall be construed to relate to contempts committed in the presence of the court, or so near thereto as to obstruct the administration of justice, nor to contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States, but the same, and all other cases of contempt not specifically embraced within section twenty-one . . . may be punished in conformity to the usages at law and in equity now prevailing.” And Sec. 25 provides “ That no proceeding for contempt shall be instituted against any person unless begun within one year from the date of the act complained of; nor shall any such proceeding be a bar to any criminal prosecution for the same act or acts. . . .” Although Sec. 25 is broad enough, upon its face, to provide a period of limitation of one year in all criminal contempts, we think that when construed in the light of the context and read in connection with the preceding sections, it does not relate to the prosecution for criminal contempts of the character here involved. The Act, as stated in Michaelson v. United States, supra, 66, is 11 of narrow scope,” and “ carefully limited to the cases of contempt specifically defined.” Sec. 21 relates only to the prosecution for the disobedience of orders, decrees, etc., by doing any forbidden act which is of such character as to constitute also a criminal offense under a federal statute or state law. And Sec. 24 specifically declares that “ nothing herein contained,”— meaning evidently no provision in the Act relating to prosecutions for criminal contempts—shall be construed to relate to contempts committed in disobedience of any order, decree, etc., entered in any suit brought in the name or on behalf of the United States; but that these and all other cases of contempt not specifically embraced within REINECKE v. GARDNER. 239 229 Syllabus. Sec. 21, may be punished in conformity to the prevailing usages at law and in equity. It is plain, we think, that this specific exception in Sec. 24, applies to Sec. 25 relating to the period of limitations as well as to the other sections, and hence that the one year limitation prescribed by Sec. 25 has no application to the proceeding in the present case, which was brought for the disobedience of a decree entered in a suit brought and prosecuted in the name and on behalf of the United States. We find nothing in the legislative history of the Act which indicates any different intention on the part of the Congress. Judgment reversed. Mr. Justice Stone did not sit in this case. REINECKE, COLLECTOR, v. GARDNER, TRUSTEE. CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No. 471. Argued April 17, 18, 1928.—Decided May 14, 1928. 1. A trustee in bankruptcy of a domestic corporation was not subject, under the Revenue Act of 1917, to an excess-profits tax on profits earned in his operation of the bankrupt’s business which would have been so taxable if earned by the corporation. P. 242. 2. The classes subject to the excess-profits tax imposed by Title II, Revenue Act of 1917, were not enlarged by § 212 of that Title, which made administrative provisions of the Act of 1916 applicable in the collection of the tax. P. 244. 3. Under the Revenue Act of 1916, and Treasury Regulations, a taxpayer was obliged to make all deductions from gross income as of the year when the payments were made, unless he kept his books on an accrual basis which accurately reflected his income, and actually made his return on that basis. Id. 4. A question propounded under Jud. Code § 239, need not be answered if the facts pertinent to it have not been certified. P. 245. 240 OCTOBER TERM, 1927. Opinion of the Court. 277U.S. Response to questions certified by the Circuit Court of Appeals relative to a claim for additional income and excess-profits taxes filed by the Commissioner of Internal Revenue in a bankruptcy proceeding and approved by the District Court. Assistant Attorney General Mabel Walker Willebrandt, with whom Solicitor General Mitchell and Messrs. Sewall Key and J. Louis Monarch, Attorneys in the Department of Justice, were on the brief, for Reinecke, Collector. Mr. Albert L. Hopkins, with whom Messrs. Clarence J. Silber and Jay C. Halls were on the brief, for Gardner, Trustee. Mr. Justice Stone delivered the opinion of the Court. In this case, pending in the Court of Appeals for the Seventh Circuit, that court has certified to this questions of law concerning which it asks instructions for the proper disposal of the cause. Jud. Code, § 239. The certificate states that the appellee, trustee in bankruptcy of a coal mining corporation, acting under order of the bankruptcy court, carried on the business of the bankrupt, using for that purpose its entire property. From October 3, 1913, the date of the adjudication, until about January 1, 1917, the business was conducted at a loss, but in 1917 and 1918 there were substantial profits. In 1917 the bankruptcy court, on the application of holders of bonds secured by trust deeds of all the bankrupt’s property, ordered the payment of the bond interest maturing in 1916, the profits of the business for 1916 exceeding the interest maturing in that year. The trustee kept his books on the accrual basis and the interest coming due in 1916 was shown on the books as then kept. The trustee deducted from gross income of that year the bond interest which matured in 1916 and was paid in 1917. The Commis- REINECKE v. GARDNER. 241 239 Opinion of the Court. sioner of Internal Revenue disallowed the deduction and filed in the bankruptcy court a claim for the additional income and the excess profits tax due for 1917, on the ground the interest maturing on the bonds in 1916 had been improperly deducted from 1917 profits. The questions certified are as follows: Question 1. Is a trustee in bankruptcy, operating under order of the bankruptcy court the business of a bankrupt domestic corporation in the year 1917, and realizing net profits from the operation, subject to the excess profits tax imposed by the revenue act of 1917, in a case where the corporation, if itself conducting the business, would, under the act, have been subject to such tax? Question 2. Under the above stated facts is the trustee in bankruptcy, in computing income and excess profits taxes for the year 1917, entitled to deduct from the gross income of 1917 the bond interest maturing in 1916, and paid in 1917 out of profits of his operation in 1917 of the bankrupt’s business? As under the bankruptcy act the entire property of the bankrupt vested in the trustee, the income in question was not the income of the bankrupt corporation, but of the trustee and was subject to income and excess profits tax only if the statutes authorized the assessment of the tax against him. The Revenue Act of 1916, c. 463, 39 Stat. 756, and the War Revenue Act of 1917, c. 63, 40 Stat. 300, imposed income and excess profits taxes on individuals, partnerships and corporations, but neither in terms mentioned trustees in bankruptcy as taxable persons. But § 13(c) of the Act of 1916 required trustees in bankruptcy of corporations subject to the income tax to make returns of net income, and provided that “ any income tax due on the basis of such returns . . . shall be assessed and collected in the same manner as if assessed directly against the ” corporation. This section, as 5963°—29------16 242 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. appellee concedes, by its terms extends the tax imposed by § 10 of the Act of 1916 to income received by trustees in bankruptcy of corporations. See United States v. Chicago & Eastern III. Ry., 298 Fed. 779. In the next year § 4 of Title I of the Act of 1917 imposed an income tax of 4% “ in addition to the tax imposed ” by § 10 of the Act of 1916 as then amended on the same subjects taxed by § 10, and provided that “ the tax imposed by this section shall be computed, levied, assessed, collected, and paid upon the same incomes and in the same manner as the tax ” imposed by § 10. The respondent was thus subjected to the additional income tax of the later act. The case is different with respect to the excess profits tax. That tax was imposed by Title II of the Act of 1917 on corporations, partnerships and individuals engaged in trade or business. The Title made no mention of executors, receivers, trustees or persons acting in a fiduciary capacity, and contained no language corresponding to the quoted provision of Title I, § 4, extending the additional income tax to “ the same incomes ” taxed by § 10 of the Act of 1916. A tax imposed on corporations alone does not extend to a trustee in bankruptcy of a corporation. See United States v. Whitridge, 231 U. S. 144; Scott v. Western Pacific Ry., 246 Fed. 545; compare Smietanka v. First Trust & Savings Bank, 257 U. S. 602. In support of the assessment of an excess profits tax the collector relies on the general language of § 212 of Title II, printed in the marginx, providing in substance that all 1 Sec. 212. That all administrative, special, and general provisions of law, including the laws in relation to the assessment, remission, collection, and refund of internal-revenue taxes not heretofore specifically repealed, and not inconsistent with the provisions of this title are hereby extended and made applicable to all the provisions of this title and to the tax herein imposed, and all provisions of Title I of such REINECKE v. GARDNER. 243 239 Opinion of the Court. the administrative provisions of the Act of 1916 not inconsistent with Title II are made applicable to it, and argues that the provisions of § 13(c) of the Act of 1916, requiring the trustee in bankruptcy of a corporation to file a return and subjecting to tax the income thus disclosed are incorporated in the Act of 1917 by reference and extended to the excess profits taxes imposed by that act. It is to be noted that § 212 purports to take over from the earlier acts administrative provisions only. Its last clause, adopting the provision of Title I of the 1916 Act “relating to returns and payment of the tax,” refers to the administrative provisions of the earlier act fixing the time and manner of making returns and payment of the tax and not to the classes of income to be assessed. In this connection the omission from § 212 of any clause corresponding to the assessment provisions of Title I, by which the additional income tax was imposed on the “ same incomes ” taxed by the earlier act, is significant. If the requirement in § 13(c) that trustees shall make returns be considered an administrative provision, certainly the added clause “ any . . . tax due on the basis of such returns shall be assessed and collected ” is more than administrative and actually imposes a tax. As such it is not incorporated in the later act by the reference in § 212. Thus the later act is without any provision subjecting one in the position of appellee to the excess profits tax. The apparent purpose of § 212 was to take over from the earlier act those applicable administrative provisions which would aid in the collection of the new tax imposed Act of September eighth, nineteen hundred and sixteen, as amended by this Act, relating to returns and payment of the tax therein imposed, including penalties, are hereby made applicable to the tax imposed by this title. 244 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. by Title II and not to extend it to classes of persons or subjects not mentioned in the Title. Various reasons may be urged why Congress may not have intended to extend the excess profits tax to trustees in bankruptcy. But whatever purpose Congress may have had, we think the language of § 212 falls short of indicating any intention to enlarge the classes of taxpayers mentioned in Title II. The extension of a tax by implication is not favored. United States v. Whitridge, supra; Smietanka V. First Trust & Savings Bank, supra. The Treasury Department itself has held that testamentary trustees and trustees of estates in process of distribution, notwithstanding the administrative provisions of the 1916 Act requiring them to make returns for income tax purposes, are not taxable for excess profits. L. 0. 1100,1-2 C. B. 230; S. M. 2384, HI-2 C. B. 330. The first question is answered “ No.” As the trustee in bankruptcy was subject to an income tax under the Act of 1916 an answer to the second question is not made unnecessary by our answer to the first. The second was, we assume, intended to present the question whether the deduction of interest accrued and payable in 1916, but actually paid in 1917, was required to be made from 1916 income because the taxpayer kept his books on the accrual basis. We are unable to answer the question for the reason that the certificate omits to state facts essential to its determination. The applicable section, 13(d) of the Act of 1916, directs that if the taxpayer keeps his books on any basis other than that of actual receipts and disbursements, and the return is made on the basis adopted, the tax shall be computed on that basis unless the books clearly do not reflect the taxpayer’s true income. In United States n. Anderson, 269 U. S. 422, it was pointed out that under the Act of 1916 and applicable treasury regulations, the taxpayer must make all deductions from gross income as of the year when the pay- HOLLAND FUR. CO. v. PERKINS GLUE CO. 245 239 Syllabus. • ments were made unless he keeps his books on an accrual basis which accurately reflects his income, and actually made his return on that basis. See United States v. Mitchell, 271 U. S. 9; American National Co. v. United States, 274 U. S. 99. The present certificate fails to state whether the books of the trustee as kept reflected his income or whether his return was made on the accrual basis or on the basis of actual receipts and disbursements. Under Jud. Code § 239 the facts pertinent to the question asked must be certified. When they are omitted from the certificate the question need not be answered. Dillon N. Strathearn S. S. Co., 248 U. S. 182. Question No. 1. Answered, No. Question No. 2. Not answered. HOLLAND FURNITURE COMPANY v. PERKINS GLUE COMPANY. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 285. Argued March 14, 15, 1928.—Decided May 14, 1928. 1. The narrowing by disclaimer of the process claims of a patent does not necessarily narrow the product claims. P. 254. 2. A patentable process is a method of treatment of certain materials to produce a particular result or product. The description of the process does not necessarily embrace the product. Either or both may be patentable. P. 255. 3. If the choice or designation of an essential ingredient of a composition of matter may be called a process, the process is one inseparable from the composition itself; the description of one necessarily limits the other; and the patent of the product cannot extend beyond a product having the designated ingredient. Id. 4. A patent for a composition of matter should contain some description of the ingredients entering into the composition which will both define the invention and carry it beyond the previous development of the art. P. 254. 246 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. 5. A patentee of a composition of matter, the product of a process, cannot, by claiming the use or function of the product, extend his monopoly over like products made with ingredients not described in his patent. P. 257. 6. Respondent’s patent (Perkins reissue, No. 13436, limited by disclaimers) includes claims, not here in dispute, for a process of making starch glue by treating with caustic alkali and water any starch in which the capacity to absorb water is limited by nature or by artificial “ degeneration ” to a degree specified in the patent,1 resulting in a glue as good as animal glue for wood veneering and similar uses. It also includes product claims of which three (Nos. 28, 30, and 31), forming the only subject matter of adjudication ih the case, are construed as claiming, in substance, any starch glue which, combined with about three parts or less by weight of water, will have substantially the same properties as animal glue. The characteristic quality of animal glue is that when combined with three parts or less by weight of water it is suitable for use in wood veneering. Held, that the claims are void, as they do not describe the starch ingredient in terms of its own physical or chemical properties, or those of the product, but wholly in terms of the use or function of the product. P. 256. 18 F. (2d) 387, reversed. Certiorari, 275 U. S. 512, to a decree of the Circuit Court of Appeals, reversing the District Court and holding the present petitioner liable as an infringer of certain claims of the respondent’s patent. Mr. Charles Evans Hughes, with whom Messrs. Wm. H. Davis, James A. Watson, and R. Morton Adams were on the brief, for petitioner. Mr. Gorham Crosby, with whom Mr. S. Mortimer Ward, Jr., was on the brief, for respondent. Mr. Justice Stone delivered the opinion of the Court. Respondent brought this suit in the district court for western Michigan, to enjoin infringement of the Perkins Reissued Patent No. 13436. So much of the judgment for the defendant, petitioner here, as held the product claims of the patent not infringed by respondent’s product, was reversed by the court of appeals for the sixth circuit. HOLLAND FUR. CO. v. PERKINS GLUE CO. 247 245 Opinion of the Court. Perkins Glue Co. v. Holland Furniture Co., 18 F. (2d) 387. The court of appeals for the seventh circuit, Perkins Glue Co. N. Gould Manufacturing Co., 292 Fed. 596, and the court of appeals for the second circuit, Perkins Glue Co. v. Standard Furniture Co., 287 Fed. 109, had previously held the patent not infringed by the same product.1 This Court granted certiorari. 275 U. S. 512. The patent is entitled “A Patent for Starch Glue and a Method of Making It.” Perkins was the first to make successfully a starch glue suitable for wood veneering and similar uses. Glue made from animal substances, known as animal glue, has long been in common use as an adhesive and is especially adapted to use in wood veneering, in which thin sheets or layers of wood are fastened together by the use of an adhesive bonding material. The characteristic qualities of animal glue, making it peculiarly suitable for that use, are a low absorptiveness of water and a consequent high degree of fluidity, facilitating its application by mechanical means, high elasticity and great tensile strength. A high water content, characteristic of other adhesive preparations, delays drying, warps the wood and when dry leaves too little bonding material to secure the requisite strength. In practice animal glue is made suitably fluid for use in wood veneering by the addition of a critically small amount of water, three parts by weight to one of glue. Long before Perkins’ experiments, adhesive paste or mucilage made from starch was well known. The Gerard Patent (1874, Belgian, No. 34869) and the Dornemann 1 Other cases involving the patent in suit are Perkins Glue Co. v. Solva Waterproof Glue Co., 233 Fed. 792; Solva Waterproof Glue Co. v. Perkins Glue Co., 251 Fed. 64; Perkins Glue Co. v. Hood, 279 Fed. 454; Perkins Glue Co. v. Holland Furniture Co., 279 Fed 457; Perkins Glue Co. v. Standard Furniture Co., 279 Fed. 458; Perkins Glue Co. v. Gould Mfg. Co., 280 Fed. 728; Perkins Glue Co. V. Crandall Panel Co., 294 Fed. 135. 248 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. Patent (1893, French, No. 232781) described a process of producing an adhesive or glue by dissolving starch in a solution of caustic alkali. The suitability of starch as a glue base in this and other processes depends upon its water absorptive quality which varies with the starch of different plants, and under varying conditions with the starch of the same plant. Because of their high water absorption, glues produced from starch, before Perkins, were too viscous and hence required too large an admixture of water for use successfully as a wood veneering glue. The controlling difficulty to be overcome in the development of a starch glue suitable for veneering was what may be called the normally large water absorptive quality of starch, corresponding to the viscosity of the resultant glue, a reduction of the one effecting a reduction in the other. It has long been known that the viscosity or the water absorptive quality of starches may be reduced by chemical treatment known as degeneration in which changes in the arrangement of the atoms in the starch molecules are effected by use of a catalytic agent. In 1906 Gerson & Sachse (German, No. 167275) patented a process for the preparation of a starch base for glue manufacture by degenerating starch by the use of oxidizing agents in the presence of an alkali. But the resultant glue from this and other processes was not suitable for use in the woodworking trades. To make it sufficiently fluid for convenient use required too large an admixture of water, four parts or more to one of glue, so that the wood was warped and when dried the glue was not sufficiently tenacious to be used successfully as a substitute in that manufacture for animal glue. The Perkins patent described a process for making glue from starch and a resultant product “ as good as animal glue,” “which will have the great practical advantage that it may be practically used for the same purposes as the best animal glue.” The process consisted of two steps. HOLLAND FUR. CO. v. PERKINS GLUE CO. 249 245 , Opinion of the Court. The basic material was a suitable raw starch, preferably starch made from the cassava root, and the first step was concerned with its conversion or degeneration so as to make a11 glue base ” with lower water absorptivity than ordinary untreated starch. This was to be accomplished by combining the basic raw material with oxidizing agents and subjecting them to heat. The method was that described in the Gerson & Sachse patent and was not new. The characteristic feature of this first step as described by Perkins was not the manner of degeneration but its degree. The degeneration of the raw cassava starch was to be carried to a point just short of its conversion into dextrine, a soluble starch, which, because of that property is of little value in glue manufacture. The patent in its re-issued form stated with precision the particular degree to which the water absorptive properties of the starch might be reduced in the preparation of a suitable glue base and described with particularity tests (the “ 9 to 1 boil up ” test and the 170° test) for ascertaining when that stage of degeneration had been reached. The second step in the process consisted in the treatment of the glue base, as prepared by the first step, by the addition of three parts or less of water by weight to one of the glue base and a specified percentage of cellulose solvent such as caustic potash. The process of preparing a starch glue by treating the glue base with a cellulose solvent was described by the Gerard and Dornemann patents and was not new, but more than three parts of water were used; hence the resultant glue was not suitable for veneering. The fundamental ideas of the Perkins process patent might be expressed in simple terms as follows: Glue made by dissolving ordinary starch in an alkaline solution of three parts of water (the quantity to which the woodworking industry is accustomed) is too thick. Glue made from over-degenerated starch is too weak. Between the extremes there is a range of degeneration within which the starch base, when dissolved in 250 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. caustic potash, will produce glue of ample fluidity without loss of tensile strength or other qualities characteristic of animal glue. The product claims, of which more will be said presently, were for the resultant glue, in substance for a starch glue having substantially the properties of animal glue. The patent has thirty-eight claims, divisible into groups. One group covers the process of producing the degenerated starch glue base, the first step process, already described. One group embraces the glue base product produced by the first step process. Another group includes the process of dissolving the starch base, by the use of alkaline solvents, the second process step; another, the combination of the two process steps and finally the group with which we are now concerned is based upon the ultimate product, the glue itself. Three of the claims embraced in this ultimate product group are the only ones now in suit, 28, 30 and 31. They are as follows: 28. A glue comprising cassava carbohydrate rendered semifluid by digestion and having substantially the properties of animal glue. 30. A wood and fiber glue formed of a starchy carbohydrate or its equivalent by union therewith of about 3 parts or less by weight of water and alkali metal hydroxid. 31. A wood and fiber glue containing amylaceous material as a base dissolved without acid in about three parts of water or less, and being viscous, semifluid and un jellified. Of these the broadest in terms is No. 28, but it appears that a glue thus composed will not have “ substantially the properties of animal glue ” unless containing only the small amount of water specified in Claim 30. We may take it also that an article which is “ wood and fiber glue ” as described in the specifications will be “viscous, semi-fluid and unjellified ” as described in Claim 31, and will also have substantially the properties of animal glue as specified in Claim 28, so that in point of substance the HOLLAND FUR. CO. v. PERKINS GLUE CO. 251 245 Opinion of the Court. product claims in suit are for a starch glue which, combined with about three parts or less by weight of water, will have substantially the same properties as animal glue. With respect to the other or non-product groups of claims respondent, in consequence of earlier litigation, has filed a disclaimer. Brief reference must be made to both the litigation and the disclaimer. The respondent brought an infringement suit in the northern district of Illinois against the Solva Company, asserting an infringement of claims in each of the five groups by the product of that company, comprising in part at least a raw cassava starch glue base which, for present purposes, may be taken as identical with the product of the petitioner. Upon appeal to the seventh circuit court of appeals, Solva Waterproof Glue Co. v. Perkins Glue Co., 251 Fed. 64, that court rendered an opinion, in some respects obscure, which has given rise to widely differing views as to its effect. In considering the present question we may assume that the court below was right in saying of that opinion: “ It held that the claims to the first step of the process, and to the product resultant therefrom—the glue base— were anticipated by Gerson & Sachse, and hence that the glue base, as a product and as the foundation of the second step in Perkins’ process, was an old and unpatentable product. It found that Perkins’ glue had the novelty and merit claimed for it. It sustained the claims to the compound two-step process, and to some extent at least, the claims to the ultimate product, and did not sustain the claims to the second-step process. No attention was paid to any distinctions in the different kinds of solva base that were involved. Its treatment of the process claims to the second-step process is open to the interpretation—and we think it the right one—that the Court considered those claims broad enough to cover the specified treatment as applied to any starch base however 252 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. high in viscosity, and employing water to any extent, and even though the product would not approximate Perkins glue; and hence thought them invalid. If that view is correct they were too broad. At the conclusion of its opinion the court said that the decree ‘ below sustaining the claims for the glue base and [first step] product, and for the so-called second step as such, is reversed, and that part of it which upholds the claims of the patent for the final process and the resultant product is affirmed.’ ” We may assume also the correctness of the view of the court below that the effect of this decision was to sustain broadly the claim to the resultant product, the glue described in claims 28, 30 and 31, as distinguished from the intermediate product which was the resultant of the first step and was found to be old, and that the product claims thus upheld included a starch glue having substantially the properties of animal glue whether made by the employment of both steps of the compound process or not. As a result of this decree the plaintiff filed a disclaimer of all the claims for the glue base itself and all those for the first process step. It also disclaimed from the second process step “ any process of making glue, excepting where the starch or starchy product or carbohydrate subjected to the process, is degenerated to the extent described [in the patent], whereby the process results in the good as animal glue described ” in the patent. Again we assume that the court below was right in saying that the effect of the disclaimer as to the second step claims was to limit them to a process where the material with which the second process step begins is any starch in fact degenerated to the point necessary to produce the result at which the second process step is aimed, whether the degeneration is effected by the first step or other artificial process, or the suitable starch is a natural agricultural product, sufficiently degenerated without chemical treatment and purchaseable in commercial quantities. HOLLAND FUR. CO. v. PERKINS GLUE CO. 253 245 Opinion of the Court. The second step process as narrowed by the disclaimer consists in the selection of a starch suitably degenerated, no matter how, and the treatment of it with an alkali as in the Gerard and Dornemann patents, but by the terms of the disclaimer only such starches are suitable, that is to say, fall within the range of selection, which, when treated by the second step process, will produce a glue as good as animal glue for veneering. The use or function of the resultant glue is made the measure or test of the choice of its ingredients. Apparently no brand of raw starch which Perkins could procure in commercial quantities when conducting his experiments could be used as a glue base without the artificial degeneration of his first step. But it appears that the defendant has been able to purchase in such quantities a starch which is a natural agricultural product having a low water absorptiveness and other characteristics making it suitable for use as a glue base. Beginning with this starch the petitioner mixes the starch with three parts of water or less and approximately 4% of caustic soda. The mixture, when agitated and heated, produces a glue which the petitioner says is heavier than animal glue, but which is used commercially as a substitute for it and which, for present purposes, may be taken as having substantially the qualities of animal glue. Whether the result may be attributed wholly to reduced viscosity of the starch, due to changed methods of cultivation or manufacture, or in some measure to peculiarities of petitioner’s dissolving operation does not appear. Petitioner contends that the raw starch selected and used by it in the manufacture of its product has high water absorptive qualities above the range defined by the patent, not satisfying the tests laid down in the patent for ascertaining whether the appropriate stage of degeneration has been reached for the employment of the second step. As the process claims are not before us this 254 OCTOBER TERM, 1927. Opinion of the Court. 277U.S. contention has bearing only upon the broad product claims which are the subject of the present suit. It is the contention of the respondent, and the court below held, that its product claims 28, 30 and 31, concededly broad enough, as stated, to cover the petitioner’s product, are valid and, in effect, that all starch veneering glues, at least when mixed with three parts of water or less, having substantially the properties of animal glue, infringe the patent whether made by Perkins’ process or otherwise. We take it, as the respondent argues, that product patents or patents of compositions of matter are distinct from patents of the process by which the product may be produced. The former, if sufficiently described, may exist and be sustained independently of the latter. Rubber Company v. Goodyear, 9 Wall. 788; Leeds de Catlin Co. v. Victor Talking Machine Co., 213 U. S. 301, 318. Hence any narrowing of process claims is not necessarily a narrowing of product claims. So much of the claim as is saved from the second step of Perkins’ process after the disclaimer and referred to here as a process claim is, in fact, only the choice of an ingredient of the glue product, independently of the chemical process of producing it. It was necessary that the Perkins patent, so far as it is a patent of a composition of matter, should contain some description of the ingredients entering into the composition which would both define the invention, Grant v. Raymond, 6 Pet. 218, 247; Wood v. Underhill, 5 How. 1, 5; Tyler v. Boston, 7 Wall. 327, 330; Bène v. Jeantet, 129 U. S. 683; Howard v. Detroit Stove Works, 150 U. S. 164, 167, and carry it beyond the previous development of the art. Had Perkins claimed only a glue made of starch dissolved in three parts of water with an alkali, he would not have advanced beyond the Gerard and Dornemann patents and subsequent practice. As his patent discloses, it was well known that ordinary starch treated in this manner produced a thick glue unsuitable for wood veneer- HOLLAND FUR. CO. v. PERKINS GLUE CO. 255 245 Opinion of the Court. ing if made with three parts of water, and a thin glue not strong enough for wood veneering if made with four parts or more of water. Perkins’ real invention, apart from the combination of his first and second step processes, with which we are not now concerned, was that by the use of a particular kind of starch as an ingredient a new composition of matter was made for which he claimed his patent. Some description of this product was obviously essential to patentability and Perkins in the reissued patent sought to meet this necessity in two ways. One was to describe the product by describing its characteristic ingredient with particularity. If we look at the specifications, as we may, he did this by indicating the range of water absorptivity, or stated in another way the degeneration, of the starch ingredient in Perkins’ glue. As described the starch ingredient fell short of dextrine or soluble starch, but was of lower water absorptivity than petitioner’s glue base. The glue made of this ingredient within the specified range was a new product. This was invention of a new composition of matter and was the real contribution Perkins made to the art. As such it was entitled to the protection of a patent but as thus described and limited petitioner’s product does not infringe. To so describe the product is not, as the court below seemed to think, a limitation of product claims by reference to process claims. A patentable process is a method of treatment of certain materials to produce a particular result or product. Cochrane v. Deener, 94 U. S. 780. The description of one does not necessarily embrace the other. Either or both may be patentable. But here we are concerned only with the choice of one ingredient of the product. There can be no description of a composition of matter without some designation of its ingredients. If the selection or choice or designation of an essential ingredient of a composition of matter may be referred to, 256 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. inaccurately as we think, as a process, the “ process ” is one inseparable from the composition itself. The description of one necessarily limits the other. Hence the patent of the product cannot extend beyond a product having the designated ingredient. See Powder Co. n. Powder Works, 98 U. S. 126, 137; Bene v. Jeantet, supra; Goodyear Dental Vulcanite Co. v. Davis, 102 U. S. 222. Perkins’ second way of describing the starch ingredient of his product was in terms of the use or function of the product itself. The chosen starch ingredient was to possess such qualities that when combined with three parts of water and with alkali it would produce a product “ as good as animal glue ” for veneering, or having the properties of animal glue, these properties being described in terms of its functions. The ingredient was thus described, not in terms of its own physical characteristics or chemical properties or those of the product, but wholly in terms of the manner of use of the product. Any glue made of a starch base, whatever its composition, water absorptiveness or other properties, combined with three parts of water, as is animal glue used in veneering, and with alkali, which has substantially the properties of animal glue, or is as good as animal glue for use in the wood-working trades, is claimed as Perkins’ glue. Thus the inventor who advances the art by discovery that a certain defined material may be combined in a product useful for certain purposes seeks to extend his monopoly to any product which may subsequently be made from materials not within any defined range described in the patent, but which is likewise useful for those purposes. But an inventor may not describe a particular starch glue which will perform the function of animal glue and then claim all starch glues which have those functions, or even all starch glues made with three parts of water and alkali, since starch glues may be made with three parts of water and alkali that do not have those properties. HOLLAND FUR. CO. v. PERKINS GLUE CO. 257 245 Opinion of the Court. See The Incandescent Lamp Patent, 159 U. S. 465, 472. Revised Stat., § 4888, requires that the patent shall contain a description of the invention “ and of the manner and process of making, constructing, compounding, and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which it appertains, or with which it is most nearly connected, to make, construct, compound, and use the same.” One attempting to use or avoid the use of Perkins’ discovery as so claimed and described functionally could do so only after elaborate experimentation. Respondents say that laboratory tests would be insufficient and that “ the best and probably the only satisfactory test is to try it out on a large scale in a furniture or veneering gluing factory.” A claim so broad, if allowed, would operate to enable the inventor who has discovered that a defined type of starch, answers the required purpose to exclude others from all other types of starch and so foreclose efforts to discover other and better types. The patent monopoly would thus be extended beyond the discovery and would discourage rather than promote invention. The Incandescent Lamp Patent, supra, 476. That the patentee may not by claiming a patent on the result or function of a machine extend his patent to devices or mechanisms not described in the patent is well understood. O’Reilly v. Morse, 15 How. 62, 112, 113; Knapp v. Morss, 150 U. S. 221, 228; Electric Signal Co. v. Hall Signal Co., 114 U. S. 87; W estinghouse v. Boyden Power Brake Co., 170 U. S. 537; Mitchell v. Tilghman, 19 Wall. 287; Fuller v. Yentzer, 94 U. S. 288; Risdon Iron & Locomotive Works v. Medart, 158 U. S. 68. Respondent argues that this principle, applicable to machine patents, is inapplicable to a patent for the composition of matter which is always a result of a process and concededly is patentable as such, but the attempt to broaden product claims by describing the product exclusively in terms of its use or function is subject to the 5963°—29------17 258 OCTOBER TERM, 1927. Syllabus. 277 U. S. same vice as is the attempt to describe a patentable device or machine in terms of its function. As a description of the invention it is insufficient and if allowed would extend the monopoly beyond the invention. See Bene v. Jeantet, • supra; Cochrane n. Badische Anilin & Soda Fdbrik, 111 U. S. 293; The Incandescent Lamp Patent, supra; Matheson v. Campbell, 78 Fed. 910; American Adamite Co. v. Mesta Machine Co., 18 F. (2d) 538. So far as respondent seeks to enlarge its product patent by subordinating the patent description of the starch ingredient which the patentee used, and which respondent does not use, to the vague and indefinite description in the three product claims now in suit, the patent is subject to the same vice. Reversed. JENKINS, RECEIVER, et al. v. NATIONAL SURETY COMPANY. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 424. Argued April 11, 12, 1928.—Decided May 14, 1928. A surety company went on the bond furnished by a bank to secure repayment on demand of the deposits of a county treasurer up to a specified amount, and, as part consideration for executing the bond, took the bank’s agreement to indemnify it for any liability it might thereby sustain or incur. The bank became insolvent while holding deposits of the treasurer exceeding the amount of the bond, and the surety, having paid that amount, sought to participate pro rata with him and his surety in the distribution of surplus assets of the bank, basing its claim on the indemnity agreement. Held— 1. That a former judgment denying the surety the right to be subrogated to the creditor’s claim and remedies against the debtor until the creditor had been paid in full, did not bar the surety’s claim under the indemnity agreement. P. 265. JENKINS v. NATIONAL SURETY CO. 259 258 Argument for Petitioners. 2. That the indemnity claim should not be allowed. A surety for part of an indebtedness does not, through the expedient of taking a separate indemnity agreement from the debtor, equip himself to compete with the secured creditor in the distribution of the debtor’s assets when the debtor becomes insolvent and the surety’s obligation has been paid. P. 265. 18 F. (2d) 707, reversed. Certiorari, 275 U. S. 515, to a decree of the Circuit Court of Appeals, which allowed the respondent Surety Company’s claim to share, by way of indemnity, in assets of an insolvent national bank. The claim had been denied in the District Court. Messrs. Paul H. Ray and John Jensen, with whom Messrs. Emmett M. Bagley, Robert L. Judd, A. M. Cheney, and Harold M. Stephens were on the brief, for petitioners. To allow the National to recover anything on its indemnity agreement until Groesbeck has been made whole, is to violate the plain terms of the National’s guaranty to him and to reduce its liability as guarantor of his entire deposit, a liability which continued “ as well after as before ” the payment of the penalty of its bond. The bond stands not behind any particular part of Groesbeck’s deposit, but behind all of it so as to be a guaranty against ultimate loss—a guaranty of the last $125,000.00, or any part of it. The fact that the National paid Groesbeck the penalty of its bond before the receiver ceased to pay dividends, does not entitle the National to compete with Groesbeck in receiving dividends from the Bank. Groesbeck did not need protection against loss of that part of his deposit which the Bank could repay by way of dividends in the event of failure. By its bond the National agreed to stand between Groesbeck and ultimate loss on his deposit. As long as any part of his depbsit remains unpaid, 260 OCTOBER TERM, 1927. Argument for Respondent. 277 U. S. Groesbeck holds the National’s agreement to protect him to the extent of $125,000.00. Maryland Casualty Co. v. Fouts, 11 F. (2d) 71; Knaffl v. Knoxville Banking & Trust Co., 133 Tenn. 655; Buffalo, etc., Co. v. Title Guaranty <£ Trust Co., 99 N. Y. S. 883; Merrill v. Nat’l Bank of Jacksonville, 173 U. S. 131; U. S. F. & G. Co. v. Carnegie Trust Co., 164 N. Y. S. 92; Illinois Surety Co. v. United States, 226 Fed. 665; Columbia Finance & Trust Co. v. Kentucky Union Ry., 60 Fed. 794; U. S. F. & G. Co. v. Union Bank & Trust Co., 228 Fed. 448; Peoples v. Peoples Bros., Inc., 254 Fed. 489; N. J. Midland Ry Co. v. Wortendyke, 27 N. J. Eq. 658; Featherstone n. Emerson, 14 Utah 12; American Surety Co. v. Nat’l Bank of Barnesville, 17 F. (2d) 942; In re Daily and Ivins, 19 F. (2d) 95. The lower court’s decision will result in unfair distribution of the Bank’s assets among its creditors in violation of the National Banking Act. Mr. Bynum E'^Hinton, with whom Messrs. A. E. Moreton and Edwin G. Davis were on the brief, for respondent. The surety’s right to subrogation as against the debtor does not arise until and 11 unless he pays the whole debt or it is otherwise satisfied,” United States v. Nat’l Surety Co., 254 U. S. 73; Mellettq Farmers Elevator Co. n. H. Poehler Co., 18 F. (2d) 430; whereas, under a contract of indemnity, the surety can proceed against the principal even though he has paid only a part of the debt. In re Kim-brough-Veasy Co., 292 Fed. 757. The claim sued upon in this case was not res judicata by reason of the decision in the first case, and must be determined on its merits. If the principal be insolvent, this right of the surety to indemnity makes him, as a creditor of his insolvent principal, a general claimant against his estate, with the right to file a claim and to be paid dividends thereon in common JENKINS v. NATIONAL SURETY CO. 261 258 Argument for Respondent. with other general creditors. U. S. F. & G. Co. v. Centropolis Bank, 17 F. (2d) 913, and cases there cited; Stearns, Suretyship, 3d ed., § 279; 1 Brandt, Suretyship, 3d ed., § 226; Newman n. Goza, 2 La. Ann. 643; Ritenour v. Matthews, 42 Ind. 7. The respondent was the creditor of the Bank from the date of the indemnity agreement, by reason of having loaned the Bank its credit. Schwartz v. Sieg al, 117 Fed. 13. No new contract was made when it paid the penalty of its bond. The payment merely fixed the amount of damages for which the bank was liable under its indemnity agreement. Payment matured and fixed the amount of the debt and gave rise to a right of action at law for reimbursement. This debt owing by the Bank was entirely new and distinct. It was in no sense the debt, or any part of the debt, which the Bank originally owed Groesbeck and the County. Being a separate and distinct claim, and a valid and binding obligation of the bank, it should have been allowed by the Receiver and dividends paid thereon. Townsend v. Sullivan, 3 Cal. App. 115; Yndo v. Rivas, 107 Tex. 408; Hill et al. v. Wright, 23 Ark. 530; Ryland v. Commercial, etc., Bank, 127 Cal. 526. The contract of indemnity was not in contravention of any provision of law or of the public policy of the State of Utah, nor was it in contravention of any Act of Congress relating to the conduct of national banks. It was therefore a legal and enforceable contract and no contention is made to the contrary. Nat’l Surety Co. v. Blaumauer, 247 Fed. 937; Western Surety Co. v. Kelly, 27 S. D. 465; U. S. F. & G. v. Centropolis Bank, 17 F. (2d) 913; 31 C. J. 424, § 16. There is nothing in the bond which indicates any agreement as between the Bank, the respondent and Groesbeck that the claim of the County upon its con- 262 OCTOBER TERM, 1927. Argument for Respondent. 277 U. S. tract of deposit should be given any priority over the claim of the Surety Company upon its contract. This being true, there is no reason in law or in equity why the contract of indemnity upon which this action is based should not be enforced. The decision of the Court of Appeals in the case at bar was based largely upon its own decision in the case of U. S. F. & G. Co. v. Centropolis Bank, 17 F. (2d) 913. Other cases supporting the view for which we contend are: U. S. F. & G. Co. v. Carnegie Trust Co., 177 App. Div. (N. Y.) 176; American Surety Co. v. Natl Bank of Barnesville, 17 F. (2d) 942; In re Dailey et al., 19 F. (2d) 95; Mellette Farmers Elevator Co. v. H. Poehler Co., 18 F. (2d) 430; Title Guaranty & Surety Co. n. Shattuck et al., 224 Fed. 401; Tenant v. U. S. F. & G. Co., 17 F. (2d) 38. The National’s liability was limited to the penalty of its bond. When it paid this penalty, its bond was exonerated. It no longer continued liable as a guarantor of the entire deposit, nor did its liability continue “ as well after as before ” payment, except in the sense that until the deposit, which it guaranteed in part, was paid in full the surety could assert no claim to be subrogated to the rights of the Treasurer against the bank, or to any collateral which he may have held. 11 Sureties are never held responsible beyond the clear and absolute terms and meaning of their undertakings.” Leggett v. Humphreys, 21 How. 66. Let us suppose that the National had required collateral security and that the Bank had given it sufficient to fully protect it against loss. This fact would not have made necessary any change whatever in the language of the depository bond. Under such circumstances there could be no doubt of the National’s right to retain and to realize on its collateral, and it might very well have happened that the National, on the failure of the Bank, would have JENKINS v. NATIONAL SURETY CO. 263 258 Opinion of the Court. been the only creditor who was in position to realize dollar for dollar on its claim and escape without loss. The National may enforce a claim against the Bank springing from contract, notwithstanding the fact that it is not entitled to immediate subrogation to the rights of its obligee against the Bank. If the contract was in all respects legal and valid, and its enforcement not limited or restrained, why should it not be enforced? Can any good reason be found for destroying a right acquired by one surety through contract in order that the benefits expected by another surety from subrogation might be perhaps increased? Mr. George P. Barse filed the brief of Mr. Joseph W. McIntosh, Comptroller of the Currency of the United States, as amicus curiae, by special leave of Court. Mr. Justice Stone delivered the opinion of the Court. The petitioner Jenkins was appointed receiver of the National City Bank of Salt Lake City, an insolvent national bank, by the Comptroller of the Currency, under the provisions of § 5234, R. S. The respondent National Surety Co. brought this action against the receiver to compel the allowance of and payment of dividends on its claim upon an indemnity agreement executed by the bank. The agreement was contained in the bank’s application for a bond by which the bank as principal and the respondent company as surety undertook that the official deposits of the treasurer of Salt Lake County, Utah, up to a named sum, would be repaid on demand. The deposits at the time of the insolvency exceeded the amount of the bond. The district court directed that dividends on the claim for indemnity be postponed until the county treasurer should have been repaid the full balance of his deposit. The court of appeals for the eighth circuit reversed the decree with instructions that the respondent 264 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. be paid dividends on an equal basis with other creditors, including the treasurer. National Surety Co. v. Jenkins, 18 F. (2d) 707. This Court granted certiorari, 275 U. S. 515, to remove a conflict alleged to exist between the decision below and rulings by the courts of appeals in other circuits. Maryland Casualty Co. v. Fouts} 11 F. (2d) 71, Springfield National Bank. v. American Surety Co., 7 F. (2d) 44. In his answer the receiver prayed that Groesbeck, the county treasurer, and the American Surety Co. be required to interplead. An order issued and they filed a joint answer, from which it appeared that Groesbeck, as principal, and the American Surety Company, as surety, had given to Salt Lake County an official fidelity bond in the sum of $200,000. The treasurer deposited the county funds in his custody in the bank and took as security the respondent’s bond in the sum of $125,000, bonds of other surety companies, executed to him as obligee, in the total sum of $100,000, and from the bank a certain amount of apparently doubtful collateral. When the bank failed his official deposit amounted to $643,094.29. Salt Lake County was paid in full—$200,000 by the American Surety Co. as surety of the treasurer’s fidelity bond; $125,000 by the respondent National Surety Co., the balance by the other surety companies and by dividends paid by the receiver. When the second dividend was paid it was sufficient to pay the final balance due from the treasurer to the county and leave a surplus of over $9,000; but there remained an unpaid balance of the deposit due from the bank to the treasurer. The claim of the respondent company is for its pro rata share of this surplus and of all dividends paid or to be paid by the receiver as well as of the collateral given to the treasurer by the bank. The claim is resisted by the interpleaded petitioners, the treasurer and the' American Surety Co., on two grounds, first, that the right of the JENKINS v. NATIONAL SURETY CO. 265 258 Opinion of the Court. treasurer and his surety to full repayment of his deposits before any. dividends are paid the respondent is in this ' case res judicata; second, that the respondent is not entitled to share in the estate of the insolvent debtor until the balance of the creditors’ claims have been fully satisfied. On both grounds the circuit court of appeals ruled against the petitioners. The plea of res judicata was based on the decree in an earlier suit brought in the district court by the county treasurer and the American Surety Co. against the receiver to determine their right to the excess of the second dividend over the county’s claim, to all future dividends and to the collateral. The National Surety Co., the respondent here, was interpleaded and answered. A decree in favor of the American Surety Co. was affirmed by the court of appeals for the eighth circuit. National Surety Co. v. Salt Lake County, 5 F. (2d) 34. We think the court below was right in holding that the earlier litigation had determined only that the National Surety Co. was not entitled to be subrogated to the treasurer’s claim and remedies against the insolvent bank until he had been paid in full, and in no way involved the National Surety Company’s present separate claim on its contract of indemnity, and that the plea of res judicata was consequently ineffective. But as the certiorari was granted to review the other branch of the case, and as the view we take of it makes unnecessary an extensive consideration of the first question, we pass at once to the second. The right now asserted by the respondent arises, not from subrogation to the rights of the treasurer but upon its independent agreement with the bank for indemnity. The bank’s undertaking was to indemnify respondent for liability which it might “ sustain or incur ” by reason of its having given its surety bond, which was conditioned on the bank’s keeping its deposits “ subject at all times to the check and order of the treasurer.” So long as the bank 266 OCTOBER TERM, 1927. Opinion of the Court. 277U.S. remained solvent respondent would have been entitled to ' immediate indemnity from the bank even though that payment neither satisfied the treasurer’s claim nor exhausted the surety’s own liability. Davies v. Humphreys, 6 M. & W. 153; Ex parte Snowden, 17 Ch. D. 44. As between itself and its principal the surety should not have been required to make any payment at all, and to allow it prompt reimbursement would in no way impede the creditor so long as the principal remained solvent. But if, as here, the principal is insolvent, any dividends paid the surety on its claim for indemnty before the creditor’s whole claim has been satisfied would decrease the creditor’s dividends by his proportionate share of the payments to the surety. They would also result in a species of double proof, detrimental to the principal’s other creditors, for the secured creditor would, under the applicable “ chancery rule,” still be entitled to dividends on his entire original claim. Compare Merrill v. National Bank of Jacksonville, 173 U. S. 131. Respondent, in insisting on the letter of its agreement, takes a position in effect inconsistent with its obligation to secure to the treasurer the repayment of his deposits to the extent of $125,000. If after paying that amount to the treasurer it may then compete with him in the distribution of the insolvent’s assets, the treasurer’s recovery on the balance of his claim is reduced accordingly and the benefit of the surety bond to the treasurer is diminished pro tanto. By the expedient of taking a separate indemnity agreement from the debtor the surety would be enabled to deprive the creditor of the full benefit of the security he had demanded. The established rule that the surety may not claim subrogation against an insolvent debtor until the creditor is paid in full is a recognition of the inconsistency of that position. United States n. National Surety Co., 254 U. S. 73, 76; Peoples n. Peoples Bros., 254 Fed. 489; United EX PARTE WILLIAMS. 267 258 Opinion of the Court. States Fidelity & Guaranty Co. v. Union Bank & Trust Co., 228 Fed. 448, 455. The rule would go for naught if, by claiming indemnity instead of subrogation, the surety could achieve the same result. The same policy against permitting a surety to compete with the creditor for the insolvent debtor’s assets requires that the surety be denied subrogation to security given to a creditor for several debts for only one of which the surety is obligated. National Bank of Commerce v. Rockefeller, 174 Fed. 22. Similar reasoning underlies the requirement of equity that the surety who holds the security of an insolvent debtor must give the benefit of it to the creditor for whom he is surety, until the debt is fully paid. See Keller v. Ashford, 133 U. S. 610; Hampton v. Phipps, 108 U. S. 260; Chamber-lain v. St. Paul, 92 U. S. 299, 306; 2 Pomeroy, Equitable Remedies (2d ed.) § 925. Wherever equitable principles are called in play, as they preeminently are in determining the rights and liabilities of sureties and in the distribution of insolvents’ estates, they likewise forbid the surety to secure by independent contract with the debtor indemnity at the expense of the creditor whose claim he has undertaken to secure. Reversed. Ex parte WILLIAMS, TAX COMMISSIONER. PETITION FOR A WRIT OF MANDAMUS No. 16, Original. Return to Rule submitted April 9, 1928.—Decided May 21, 1928. 1. A refusal of a district judge to call in two other judges for the final hearing of a case governed by Jud. Code § 266, as amended, is remediable in this Court by a writ of mandamus. P. 269. 2. A case does not fall within Jud. Code § 266 unless a statute, or an order of an administrative board or commission, is challenged as contrary to the Federal Constitution. P. 271. 268 OCTOBER TERM, 1927. Opinion of the Court. 277 U. 8. 3. An assessment of railroad property for taxation, made by a state board, is not an “ order ” within the meaning of Jud. Code § 266, and, therefore, in a suit to enjoin collection of taxes under it upon the ground of systematic and intentional discrimination against plaintiff by the board in making the assessment, the application for a preliminary injunction may be heard by a single judge. P. 271. 4. Under Jud. Code § 266, as amended February 13, 1925, the final hearing is not required to be before three judges, unless the application for an interlocutory injunction was required to be. P. 273. Rule discharged. Upon a return submitted by District Judge Woodrough in answer to a rule to show cause why a writ of mandamus should not issue requiring him to call in two other judges for the final hearing of an injunction suit. Williams, the Tax Commissioner of Nebraska, and seventy-one county treasurers were the petitioners for the writ. Messrs. 0. S. Spillman,, Attorney General of Nebraska, George L. Basye, and Hugh LaMaster, Assistant Attorneys General, were on the brief for petitioners. Hon. Joseph W. Woodrough, District Judge, made return and appeared for himself. Mr Justice Brandeis delivered the opinion of the Court. This is a petition by Williams, the tax commissioner of Nebraska, and 71 county treasurers asking for a writ of mandamus to be directed to District Judge Woodrough of the federal court for that State. A rule to show cause issued, 276 U. S. 597; and the return has been made. The petitioners are the defendants in a suit in equity commenced in that court by the Chicago, Burlington & Quincy Railroad Company. When the cause was ripe for final hearing, they moved the district judge to call to his assistance two other federal judges, as provided in § 266 of EX PARTE WILLIAMS. 269 267 Opinion of the Court. the Judicial Code, as amended by the Act of March 4, 1913, c. 160, 37 Stat. 1013, and the Act of February 13, 1925, c. 229, 43 Stat. 936, 938. Judge Woodrough denied the motion and set the case for final hearing, stating that “the object and purpose of this action is to enjoin the collection of taxes against plaintiff’s property by defendants county treasurers . . . and there is no injunction issued, allowed or prayed for to restrain the action of any officer of the state of Nebraska and that the defendants county treasurers are not officers of the state of Nebraska” within the meaning of § 266 as amended. The petitioners contend that they are entitled as of right to have the case heard before three judges. Mandamus is the appropriate remedy. Ex parte Metropolitan Water Co., 220 U. S. 539, 546. Nebraska has provided for the assessment of railroad property by a State Board of Equalization. Compiled Statutes, 1922, §§ 5839, 5840. After the board completes its valuation, it is required to return to the county clerk of every county in which the railroad has property, a statement showing the proportion of the railroad that lies within the county, its average valuation per mile, and the valuations that shall be placed to the credit of each of the governmental subdivisions of the county. The board is authorized to fix the rate of taxation for state purposes; and it transmits to the county clerk a statement of the rate so established. The county treasurers are ex officio collectors of all taxes levied within their respective counties whether for state or for local purposes. §§ 5847-5850, 5904, 5905, 5996. The Railroad seeks in its suit to enjoin the collection of the taxes for 1923 on the ground that the equality clause of the Fourteenth Amendment was violated in making the assessment. It alleged that its property was assessed by the state board at 122% of its actual value, while the property of other taxpayers was assessed locally at not 270 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. more than 60% of its value; that this discrimination was systematic and intentional; that the valuation of its property fixed by the state board had been certified to the clerks of the various counties and entered on the tax lists; that the taxes were about to become delinquent; and that the Company was without adequate remedy at law. It prayed that the court fix the percentage of the tax levied which it should pay to the county treasurers in tentative settlement, for a temporary restraining order, and for interlocutory and final injunctions. Pursuant to an order of the district judge, the motion for an interlocutory injunction came on for hearing, in November, 1923, before a court of three judges constituted as provided in § 266 of the Judicial Code. Because certain of the legal questions presented were deemed similar to those involved in Chicago, Burlington de Quincy R. R. Co. v. Osborne, 265 U. S. 14, then pending in this Court, the interlocutory injunction was granted. The Osborne case was decided on April 28, 1924. On June 23, 1925, the district court, again composed of three judges, appointed, on motion of the Railroad, a special master to take evidence. His report was filed on January 31, 1928. Soon thereafter, the defendants made the motion that the District Judge call two additional judges to his assistance on final hearing. He was not required to do this unless the suit was one in which, as provided in § 266, it is sought to restrain “ the enforcement, operation, or execution of any statute of a State by restraining the action of any officer of such State in the enforcement or execution of such statute, or in the enforcement or execution of an order made by an administrative board or commission acting under and pursuant to the statutes of such State . . . upon the ground of the unconstitutionality of such statute.” We are of opinion that Judge Woodrough properly denied the motion. EX PARTE WILLIAMS. 271 267 Opinion of the Court. A case does not fall within § 266 unless a statute or an order of an administrative board or commission is challenged as contrary to the Federal Constitution. Oklahoma Gas Co. v. Russell, 261 U. S. 290; Ex parte Buder, 271 U. S. 461, 465. Here, there was no question as to the validity of the taxing statute. It was the assessment which the Railroad challenged. And an assessment is not an order made by an administrative board or commission, within the meaning of that section. The function of an assessing board is not that of issuing orders. Its function is informational. Its duty is to make findings of fact, and thereby furnish the basis on which other officials are to act in individual instances in levying and collecting the taxes. An assessment does not command the taxpayer to do, or to refrain from doing any thing; 'does not grant or withhold any privilege, authority, or license; does not extend or abridge any power or facility; does not determine any right or obligation. Compare Standard Scale Co. v. Farrell, 249 U. S. 571,577; Pennsylvania R. R. Co. v. United States Railroad Labor Board, 261 U. S. 72; United States n. Los Angeles & Salt Lake R. R. Co., 273 U. S. 299, 310; Southern Bell Telephone & Telegraph Co. v. Railroad Commission, 280 Fed. 901. An assessment is directed by one officer of the State to another. Compare Great Northern Ry. Co. v. United States, ante, p. 172. Though in Nebraska the railroad property is, in the main, assessed by a state board and the value of the part within each county is then determined on a pro rata basis, the function of assessing property within a county remains the same as it would be if the valuation of all the property were made by a county board. Whatever the scope of the jurisdiction of the assessing body and whatever the method of valuation pursued, the function to be performed remains simply that of fact-finding. For the purpose of jurisdiction in federal courts, the difference between the function of regulating, expressed 272 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. in orders of a railroad or like commission, and the function of fact-finding is vital. Determinations of an administrative board which are merely findings of fact are not reviewable, Keller v. Potomac Electric Co., 261 U. S. 428. Assessments become reviewable judicially only when they are translated into action, as by levy of the tax based on the assessment. From this difference between regulatory orders of administrative boards or commissions, which constitute action, compare Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 226, and assessments by tax commissions or local assessors, which form merely a basis for action, flows the difference in the method of review in cases brought here under § 237 of the Judicial Code. A judgment of a state court sustaining the validity of a regulatory order of a public utilities board is reviewable by writ of error, like a judgment sustaining the validity of a statute. Bluefield Waterworks & Improvement Co. v. Public Service Commission, 262 U. S. 679, 683; Northern Pacific Ry. Co. v. Department of Public Works, 268 U. S 39, 42; Live Oak Water Users’ Association v. Railroad Commission, 269 U. S. 354, 356; Sultan Ry. & Timber Co. v. Department of Labor & Industries, ante, p. 135. But a judgment of a state court sustaining a tax alleged to be illegal because there has been discrimination in assessing property, can be reviewed only on certiorari. Jett Bros. Distilling Co. v. City of Carrollton, 252 U. S. 1, 5. This is true whether it was the determination of a state or local assessing body, or, as in the case at bar, of both combined, which is alleged to have produced the discrimination. Baker v. Druesedow, 263 U. S. 137. Obviously an assessment which is not “ a statute of or an authority exercised under any State ” within the meaning of § 237, before amended by the Act of 1925, cannot be a statute or an order of an administrative board or commission under § 266. The orders contemplated by § 266 are directed to railroads or others, of whom action, or non-action, is commanded, as it is by a statute. EX PARTE WILLIAMS. 273 267 Opinion of the Court. Compare Sultan Ry. & Timber Co. v. Department of Labor and Industries, supra. Since an assessment by a state board of equalization has none of the qualities that would be associated with “ orders,” it cannot have been the sort of state administrative function which Congress had in mind when, by the amendment of 1913, it declared the scope of § 266 so as to include suits in which the injunction was sought on the ground of the unconstitutionality of an administrative order.1 Under the Act of February 13, 1925, the final hearing is not required to be before three judges unless the application for an interlocutory injunction was required to be. In a large majority of the cases of this character in which applications for an interlocutory injunction have been made, they have been heard before a single judge; and the propriety of the practice has not been questioned by this Court.2 As we hold that the action of the state and 1 The purpose of the amendment, as stated by Mr. Clayton, who had charge of the bill in the House, was “ to put the order of a State railroad commission upon an equality with a statute of a State; in other words, to give the same force and effect to the order of a State railroad commission as is accorded under existing law to a State statute.” 49 Cong. Rec. 4773. 2 This appears to have been the uniform practice where the assessment was made by local officials. Union Pacific R. R. Co. v. Board of Commissioners of Weld County, 217 Fed. 540, 247 U. S. 282; Keokuk Bridge Co. v. Salm, 258 U. S. 122 (see original papers); Wilson v. Illinois Southern Ry. Co., 263 U. S. 574 (see original papers); Callaway v. Bohler, 291 Fed. 243‘, 248; see 267 U. S. 479, 483; Atchison, Topeka & Santa Fe Ry. Co. v. Board of Commissioners of Douglas County, 225 Fed. 978; Gammill Lumber Co. v. Board of Supervisors of Rankin County, 274 Fed. 630. It has also been the practice in the great majority of cases where the object of the suit was to enjoin local officials from levying a tax based on an assessment made by a state board and claimed to be discriminatory. Mudge v. McDougal, 222 Fed. 562; Nevada-California Power Co. v. Hamilton, 235 Fed. 317; City Ry. Co. v. Beard, 283 Fed. 313; Chicago & Northwestern Ry. Co. v. Eveland, 285 Fed. 425, 437 (in this case the Tax Commission was joined as defendant, but no relief appears to have been sought against it); Ohio Fuel Supply Co. v. Paxton, 1 F. (2d) 5963°—29-------18 274 OCTOBER TERM, 1927. Syllabus. 277 U.S. county boards which is alleged to be discriminatory, is not an order within the meaning of § 266, we have no occasion to consider whether the lower court was right in holding that the 11 county treasurers are not officers of the State of Nebraska,” or whether there are other reasons why the suit is not within the scope of that section. Rule discharged. WILLING et al. v. CHICAGO AUDITORIUM ASSOCIATION. CERTIORARI to the circuit court of appeals for the SEVENTH CIRCUIT. No. 561. Argued April 19, 20, 1928.—Decided May 21, 1928. A corporation which had constructed and maintained a very expensive commercial building on ground leased to it for long terms, find- 662, 663; Fordson Coal Co. v. Maggard, 2 F. (2d) 708; Connecting Gas Co. v. Imes, 11 F. (2d) 191, 195. On the other hand, in Chicago, Burlington & Quincy R. R. Co. v. Osborne, 265 U. S. 14, the hearing below was before three judges. In that case, as in this, the Tax Commissioner was joined as a defendant, but apparently no relief could have been given against him. Where relief by injunction has been sought against state tax commissions, boards of equalization, and their members, the practice has been less uniform. The application for a temporary injunction was entertained by a single judge in Johnson v. Wells, Fargo & Co., 205 Fed. 60, 239 U. S. 234 (prior to the Act of 1913); Louisville & Nashville R. R. Co. v. Greene, 244 U. S. 522 (see original papers); Illinois Central R. R. Co. v. Greene, 244 U. S. 555 (see original papers); Louisville & Nashville R. R. Co. v. Bosworth, 209 Fed. 380; Standard Oil Co. v. Howe, 257 Fed. 481; United Verde Extension Mining Co. v. Howe, 8 F. (2d) 209. In Chicago, Milwaukee & St. Paul Ry. Co. v. Kendall, 278 Fed. 298, 266 U. S. 94, the hearing was before three judges. See also Illinois Central R. R. Co. v. Mississippi Railroad Commission, 229 Fed. 248; Chicago, Indianapolis & Louisville Ry. Co. v. Lewis, 12 F. (2d) 802; Cumberland Pipe Line Co. v. Lewis, 17 F. (2d) 167; Western Union Telegraph Co. v. Tax Commission of Ohio, 21 F. (2d) 355. WILLING v. CHICAGO AUDITORIUM. 275 274 Argument for Petitioners. ing the income inadequate to pay profits on the investment, and desiring to substitute on the same ground a larger building of modern type, but fearing that under the terms of the leases it could not remove the existing structure without the lessors’ consent, brought suit against them and the trustees for its bondholders, for the purpose of establishing its right to do so, praying also that the defendants be restrained from taking any steps to prevent such removal. Held that the suit could not be maintained in a federal court, for: 1. The doubt of the plaintiff’s right, arising only on the face of the leases by which it derived title, was not in legal contemplation a cloud; and a bill to remove it as such would not lie. P. 288. 2. Relief by declaratory judgment is beyond the jurisdiction of the federal judiciary. P. 289. 3. The proceeding was not a case or controversy within the meaning of Art. Ill of the Constitution, since no defendant had wronged or threatened to wrong the plaintiff, and no cause of action arose from the thwarting of the plaintiff’s plans by its own doubts or by the fears of others. Id. 4. A removed proceeding which is not a suit within the meaning of Jud. Code § 28, must be remanded by the federal court, even though the remedy sought may be one conferred by state law or statute. P. 290. 20 F. (2d) 837, reversed. Certiorari, 275 U. S. 519, to a decree of the Circuit Court of Appeals, which reversed a decree of the District Court, 8 F. (2d) 998, dismissing the bill of the Auditorium Association. The suit was said to be in the nature of a suit to remove a cloud from title, and was begun originally in the state court. Mr. Charles Evans Hughes, with whom Messrs. Samuel Topliff and Homer H. Cooper were on the brief, for petitioners. The law of the State must determine the respondent’s title, or whether the title is clouded. Guffey v. Smith, 237 U. S. 101; Holland v. Challen, 110 U. S. 15; Clark v. Smith, 13 Peters, 195; Pusey & Jones Co. v. Hanssen, 261 U. S. 491. 276 OCTOBER TERM, 1927. Argument for Petitioners. 277 U. S. Under the law of Illinois, doubtful provisions in an owner’s muniment of title and oral hostile assertions by an adverse claimant, do not constitute a cloud upon that title. McCarty v. McCarty, 275 Ill. 573; Greenough n. Greenough, 284 Ill. 416; Rigdon v. Shirk, 127 Ill. 411; Buckner v. Carr, 302 Ill. 378; Warren v. Warren, 279 Ill. 217; First Congregational Church v. Page, 257 Ill. 472; Glos v. People, 259 Ill. 332. See Devine N. Los Angeles, 202 U. S. 313. Bills to remove clouds presuppose the validity and existence of a plaintiff’s own title, and are directed exclusively against the alleged invalid claim of a defendant, to be shown invalid by facts extrinsic to the plaintiff’s own recorded evidence of title. Wehrman v. Conklin, 155 U. S. 314; Lawson v. U. S. Mining Co., 207 U. S. 1; Phelps v. Harris, 101 U. S. 370. The case set up by the respondent is not embraced within any principle or head of equity jurisprudence, and is an application for a declaratory decree not within the judicial function. The essential elements of a justiciable case or controversy, over which the jurisdiction of courts of the United States extends, have been stated in Muskrat v. United States, 219 U. S. 346; United States v. Hamburg-Amerikanische Co., 239 U. S. 466; United States v. Alaska Steamship Co., 253 U. S. 113 ; New Jersey n. Sargent, 269 U. S. 328. Changing circumstances, or hardships, or lack of commensurate return, do not excuse nonperformance of the covenants in leases, and, since petitioners are not in the least responsible for the creation or development of these conditions, if existent, such conditions are not legal wrongs for which respondent has any remedy against petitioners. Ingle v. Jones, 2 Wall. 1; Sheets v. Selden, 7 Wall. 416; Blake v. Pine Mt. Iron & Coal Co., 76 Fed. 624; Postal Telegraph Co. v. Western Union, 155 Ill. 335. WILLING v. CHICAGO AUDITORIUM. 277 274 Argument for Petitioners. Illinois has no declaratory judgment or other statute under which jurisdiction can be sustained. This suit, upon the same considerations, would fail in the state courts. Seely v. Baldwin, 185 Ill. 211; Paine v. Doughty, 251 Ill. 396; Prather v. Lewis, 287 Ill. 304. A declaratory judgment remedy can not be applied by the federal courts. Liberty Warehouse Co. v. Grannis, 273 U. S. 70. There can be no substitution of equitable for legal remedies, whereby the constitutional right of trial by jury in actions at law is impaired. L. & N. R. R. Co. v. Western Union, 234 U. S. 369. Where the plaintiff’s own title is doubtful, a bill in equity to remove alleged clouds therefrom will not lie. Phelps v. Harris, 101 U. S. 370; Frost v. Spitley, 121 U. S. 552; Wehrman v. Conklin, 155 U. S. 314; Seely v. Baldwin, 185 Ill. 211; Prather v. Lewis, 287 Ill. 304. The petitioners were wrongfully prevented from litigating in the courts of the State by the erroneous refusals of the federal courts to remand the case. There is no separable, removable controversy unless there is a separate and distinct cause of action as to the defendants seeking removal, which can be decided as between them and the plaintiff in the absence of all other defendants. Torrence v. Shedd, 144 U. S. 527; Fraser v. Jennison, 106 U. S. 191; Ayres v. Wis wall, 112 U. S. 187; Wilson v. Oswego Township, 151 U. S. 56. Where the right to remove is doubtful, the federal courts uniformly remand. Thomas v. Delta Land & Water Co., 258 Fed. 758; Boykin v. Morris Fertilizer Co., 257 Fed. 827; Hansen v. Pacific Coast Asphalt Cement Co., 243 Fed. 283. It becomes the duty of a federal court, at whatever stage of litigation it discerns that federal jurisdiction is lacking in a removed case, to remand it to the state ~278 OCTOBER TERM, 1927. Argument for Respondent. 277U.S. court. Minnesota v. Northern Securities Co., 194 U. S. 48; Graves v. Corbin, 132 U. S. 571; Torrence v. Shedd, 144 U. S. 527. Mr. Walter L. Fisher, with whom Messrs. Wm. C. Boyden and Wm. W. Case were on the brief, for respondent. When there is a legal right to the beneficial use of property, when obstacles prevent the present enjoyment of that right, when the decree of a court of equity would in fact remove those obstacles without violation of rights of private individuals or of any principles of public policy, and when the courts of law afford no adequate remedy, the jurisdiction of equity is complete. The doctrine that a right is not cognizable by courts of justice unless controverted, if possessed of general validity for any purpose, pertains to the canons of the common law rather than to equity. Trustees are constantly applying to the court for instructions, not because the defendants disagree with them about the performance of their duties, but to protect themselves against the possibility of any such claim at some future time. In suits to establish title, or to remove clouds on title, equity regularly intervenes to protect the rights of a plaintiff about which no controversy exists. The owner of a title acquired by adverse possession, the evidence of which is not a matter of record and might be lost, is entitled to a decree establishing his title as against the holder of the patent title, even though such holder may have entirely abandoned the property. The jurisdiction does not depend at all on any adverse claim by the defendant. See Sharon v. Tucker, 144 U. S. 533. In an ordinary foreclosure suit, parties are joined as defendants on the mere allegation that they have or claim some junior interest in the property. Such a defendant may file a disclaimer, but he cannot sustain a demurrer WILLING v, CHICAGO AUDITORIUM. 279 274 Argument for Respondent. to the bill on the ground that it fails to show any assertion on his part of an adverse claim. The apprehension that he might make a claim, and the right of the plaintiff to the enjoyment of the property free and clear from any possibility of such claim, is all that is needed to enable the court to enter a decree against him. While the present case does in fact disclose a wrong, consisting of unfounded assertions made before suit was begun and reiterated in pleading and by argument during its progress, we do not believe that equitable jurisdiction is conditioned by the assertion or existence of any such wrong. The ownership of property includes a right to its beneficial use; that right is coeval with the ownership and does not come into being for the first time when somebody disputes it; and it is one of the ordinary and most useful functions of equity to render such a right available by the removal of obstacles to its enjoyment. The utmost that can be required is that there must be in fact a real obstacle to the free enjoyment of the right. Cf. Gavin n. Curtin, 171 Ill. 640; Fulwiler v. McClun, 285 Ill. 174. It is a grave error to picture equity as a congeries of stereotyped forms of action outside of which its remedial powers cannot operate. The issue thus raised goes to the very foundation of equitable jurisdiction. If the bill must bear a label already in stock, the suit can best be described as one to remove cloud on title, or as a bill in the nature of a bill to remove cloud from title. Holland v. Challen, 110 U. S. 15; 32 Cyc. 1308; 18 Har. L. Rev., 528; McArthur v. Hood Rubber Co., 221 Mass. 372. As for the alleged effect of Illinois law, the authorities only go to the extent of holding that a state statute enlarging the jurisdiction to remove cloud on title creates a substantive right which may be enforced in a federal court; they lend no countenance to the claim that state 280 OCTOBER TERM, 1927. Argument for Respondent. 277U.S. courts or even state legislatures can in any manner narrow the definition of a cloud on title so as to cut down the inherent jurisdiction of the federal courts with respect to the removal thereof. McConihay n. Wright, 121 U. S. 201; Guffey v. Smith, 237 U. S. 101; Holland v. Challen, 110 U. S. 15; Clark v. Smith, 13 Pet. 195; Pusey & Jones Co. v. Hanssen, 261 U. S. 491. It is one thing to say that an impediment of some particular sort is not one which, standing alone, equity will assume jurisdiction to remove, and quite another to say that equity cannot remove it as a part of the relief to which a suitor is justly entitled. With this distinction kept in view, we think it easy to show that the remedy sought in the present suit would have been accorded by the Illinois courts. Parker v. Shannon, 121 Ill. 452; Seely v. Baldwin, 185 Ill. 211; Greenough v. Greenough, 248 Ill. 416; Harrison v. Owsley, 172 Ill. 629; Buckner v. Carr, 302 Ill. 378; McCarty v. McCarty, 275 Ill. 573; Warren v. Warren, 279 Ill. 217; Fulwiler v. McClun, 285 Ill. 174. Equity is not prevented from assuming jurisdiction of a meritorious case merely because it involves features which, when isolated, have been pronounced insufficient in themselves to warrant the exercise of jurisdiction. Trugx v. Raich, 239 U. S. 33; Terrace v. Thompson, 263 U. S. 197; Packard v. Banton, 264 U. S. 140; Hygrade Provision Co. v. Sherman, 266 U. S.. 497; Ohio Tax Cases, 232 U. S. 576; Shaffer v. Carter, 252 U. S. 37; Risty v. Railway Co., 270 U. S. 378. As to oral assertion of adverse claims: That equity has no inherent jurisdiction merely to construe deeds or interpret contracts is a proposition which may be accepted as axiomatic. That mere verbal assertions of an adverse claim are not enough, without further incident, to create a removable cloud, is a proposition generally true. What gives equity jurisdiction to construe deeds or contracts in- WILLING v. CHICAGO AUDITORIUM. 281 274 Argument for Respondent. volving only legal titles is an actual emergency in which its aid is indispensable to assure to an owner the beneficial use of his property, and “ mere verbal assertions ” will not call equity into action unless they relate to a similar situation. Thompson n. Emmett Irrigation District, 227 Fed. 560; Oman v. Bedford-Bowling Green Stone Co., 134 Fed. 64; Lovell v. Marshall, 162 Minn. 18; Siegel v. Horbine, 148 Pa. St. 236. That there was affirmative assertion of adverse claim is shown by this record. Illustrations of removal of clouds on title : N. Y. de N. H. Ry Co. v. Schuyler, 17 N. Y. 502; Stebbins v. Perry County, 167 Ill. 567; Levy v. S. H. Kress & Co., 285 Fed. 836; Blair v. Chicago, 201 U. S. 400; Holland v. Chdllen, 110 U. S. 15; Parker v. Shannon, 121 Ill. 452; Sharon v. Tucker, 144 U. S. 533; Contee v. Lyons, 19 Sup. Ct. D. C. 207; Walker v. Converse, 148 Ill. 622; Atchison Ry. Co. v. Stamp, 290 Ill. 428; McArthur v. Hood Rubber Co., 221 Mass. 372; Rector v. Rector, 201 N. Y. 1, 130 App. Div. 166. Given a primary right to the beneficial use of property, and an obstacle to its present enjoyment which would in fact be removed by an appropriate decree, the lack of adequate remedy at law is the sole and sufficient criterion of equitable jurisdiction. 1 Pomeroy, Eq. Jur., § 111; Toledo Ry. Co. v. Pennsylvania Co., 54 Fed. 746; Dodge v. Cole, 97 Ill. 338. Waiting until somebody else chooses to start a lawsuit in this case is not an adequate remedy at law. Modern jurisprudence does not require parties to hazard their entire fortunes upon the correctness of their lawyers’ opinions. Nat’l Bank n. Carpenter, 101 U. S. 567; Ex parte Young, 209 U. S. 123; Wadley Southern Ry. Co. v. Georgia, 235 U. S. 651; Oklahoma Operating Co. v. Love, 252 U. S. 331; Terrace v. Thompson, 263 U. S. 197; Porterfield v. Webb, 263 U. S. 225; Webb v. O’Brien, 263 282 OCTOBER TERM, 1927. Argument for Respondent. 277 U. S. U. S. 313; Fick v. Webb, 263 U. S. 326; Pierce v. Society of Sisters, 268 U. S. 510. Waiting to be sued is not an adequate remedy for a cloud on title. Foss v. Murray, 50 Oh. St. 19; Holland v. Challen, 110 U. S. 15; Bank v. Stone, 88 Fed. 383; Fredenberg n. Whitney, 240 Fed. 819; Schwab v. St. Louis, 310 Mo. 116; Siegel v. Harbine, 148 Pa. St. 236. As for declaratory judgments, it is doubtless true that courts ordinarily refuse to enter judgments declaring rights with respect to which no present cause or controversy exists; but this doctrine does not affect the jurisdiction of equity to remove clouds from title. The complicated problems incident to modern social, commercial, and industrial development often make it very important that the rights of parties be settled before they are directly involved in litigation. Generally the courts have not shirked the task when the necessity of an adjudication was sufficiently urgent, but they have been and are naturally reluctant to take jurisdiction of questions of a remote or speculative character, and they have not always been at one about the degree of vexatiousness that will warrant such intervention. As to removability, separable controversy and indispensable parties: Barney v. Latham, 103 U. S. 205; Fraser v. Jennison, 106 U. S. 191; Russel v. Clarke’s Executors, 7- Cranch 69; Shields v. Barrow, 17 How. 130; Sioux City Co. v. Trust Co., 82 Fed. 124; Williams v. Bankhead, 19 Wall. 563; Raphael v. Trask, 194 U. S. 272; Brown v. Trousdale, 138 U. S. 389; Kendig n. Brown, 97 U. S. 423; St. Louis Ry. Co. n. Wilson, 114 U. S. 60; Crump v. Thurber, 115 U. S. 56; Hagan v. Walker, 14 How. 29; Wood v. Dummer, 3 Mason 308; Greene v. Sisson, 10 Fed. Cas. No. 5768; Tobin v. Walkinshaw, 23 Fed. Cas. No. 14068; Martin v. Fort, 83 Fed. 19; Wilson v. Oswego Township, 151 U. S. 56; Construction Co. v. Cane Creek Township, 155 U. S. 283; Salem Trust Co. v. Mfrs. WILLING v. CHICAGO AUDITORIUM. 283 274 Opinion of the Court. Finance Co., 264 U. S. 182; Waterman v. Candi-Louisiana Bank Co., 215 U. S. 33; Bitterman v. Louisville R. R. Co., 207 U. S. 205; Elder v. Western Mining Co., 237 Fed. 966; Graves v. Ashburn, 215 U. S. 311; Commodores Point Terminal Co. v. Hudnall, 283 Fed. 150; Schell v. Leander Clark College, 2 F. (2d) 17; Pirie v. Tvedt, 115 U. S. 41; L. & N. R. R. Co. v. Ide, 114 U. S. 52; Alabama Southern R. R. Co. v. Thompson, 200 U. S. 206; Illinois Central R. R. Co. v. Sheegog, 215 U. S. 308; Chicago, R. I. & P. Ry. Co. v. Dowell, 229 U. S. 102; Hay v. May Stores, 271 U. S. 318; Geer v. Mathiesen Alkali Works, 190 U. S. 428; Bacon v. Felt, 38 Fed. 870; Venner v. Southern Pacific Co., 279 Fed. 832; Field v. Lownsdale, 9 Fed. Cas. No. 4769; ^Goodenough v. Warren, 10 Fed. Cas. No. 5534; Goldsmith v. Gilliland, 24 Fed. 154; Stanbrough v. Cook, 38 Fed. 369; Bates v. Carpentier, 98 Fed. 452; Carothers v. McKinley Mining Co., 116 Fed. 947; N. C. Mining Co. v. Westfeldt, 151 Fed. 290; McMullen v. Halleck Cattle Co., 193 Fed. 282; Winfield v. Wichita Natural Gas Co., 267 Fed. 47; Old Dominion Oil Co. v. Superior Oil Corp’n, 283 Fed. 636; Davidson v. Montana-Dakota Power Co., 22 F. (2d) 688. Mr. Justice Brandeis delivered the opinion of the Court. This suit, which was begun in a state court of Illinois by the Chicago Auditorium Association, is said to be in the nature of a bill to remove a cloud upon title. All of the parties except a few of the defendants are citizens of Illinois. These claimed that as to them there was a separable controversy, and they secured a removal of the whole cause to the federal court for northern Illinois. There Willing and other defendants moved to dismiss on the ground that the bill was not within the jurisdiction of a court of equity and that the court “ is without jurisdiction of the subject matter of the case, made or at-: 284 OCTOBER TERM, 1927. Opinion of the Court. 277U.S. tempted to be made by the bill.” The court was of opinion that the case presented questions which should be determined only upon answers and proofs; denied the motions to dismiss, without prejudice to any question raised by either party touching the motions; and directed the defendants to answer. After hearing the case fully on the evidence, the District Court dismissed the bill “for want of equity jurisdiction in the court to grant any relief upon the pleadings and the evidence, but without prejudice to whatever rights the plaintiff may have . . . when asserted in any appropriate proceeding or otherwise.” 8 F. (2d) 998. The Circuit Court of Appeals held that the suit was cognizable in a court of equity as one to remove a cloud upon title; and it reversed the decree with direction to the District Court to hear the evidence and determine the issues involved, 20 F. (2d) 837. This Court granted a writ of certiorari, 275 U. S. 519. Motions by Willing and others to remand the case to the state court had been made in the District Court on the ground that the controversy involved was single and entire as to all the defendants. The motions, which that court denied, were renewed in the Circuit Court of Appeals and again denied. We have no occasion to consider whether the alleged controversy was separable. For we are of opinion that the proceeding does not present a case or controversy within the range of judicial decision as defined in Article III of the Federal Constitution. The facts alleged and proved are these: The Association, an Illinois corporation, was organized in 1886 for the purpose of constructing and maintaining in Chicago a building containing a large auditorium, galleries for exhibition of works of art, offices and other rooms; to provide thereby and otherwise, for the cultivation of music, the drama and the fine arts, and for holding in Chicago political and other conventions; and to use the premises WILLING v. CHICAGO AUDITORIUM. 285 274 Opinion of the Court. for any and all purposes of profit. To this end, the Association became, in 1887, the ground lessee of five adjacent parcels of land for the term of 99 years, under five separate, substantially similar indentures. Three of the leases were later extended to the year 2085. On this land the Association built, before 1889, the single monumental structure now standing, known as the Auditorium Building, which contains, besides the auditorium, a recital hall, studios, a hotel, and many business offices. The cost of construction and maintenance was defrayed by stock issues aggregating $2,000,000, and by issues of bonds of which $1,375,000 are outstanding. The building is now in fairly good condition, and continues to serve well the purposes for which it was constructed. The payments of rent and interest have been made regularly. Thus neither the public, the landlords, nor the bondholders have cause for dissatisfaction. But, for the stockholders, the investment has never been financially remunerative. In forty years only one dividend has been paid ; and that was one and a half per cent. Considered as a financial investment, the building is now obsolete in design; and it is incapable of alteration without unjustifiable expense. The highest and best use of the property for the financial gain of the tenant would now be the replacement of this structure by a modern one adapted for business. The Association desires to erect a large modern commercial building of greatly increased height, the cost of which may be as much as $15,000,000. Appropriate changes in its charter powers have been made. Recently some of the stock has been acquired by the President of the corporation at a small fraction of its par value. There is no provision in the leases which in terms gives the Association the right to tear down this building and erect another in its place. It may be that the building, as and when constructed, became, and now is, property 286 OCTOBER TERM, 1927. Opinion of the Court. 277U.S.. of the lessors. Compare Kutter v. Smith, 2 Wall. 491; Bass v. Metropolitan West Side Elevated Railway Co., 82 Fed. 857. The leases contain certain provisions which may be construed as denying, by implication, any right to tear down the building even to replace it by a better one. They declare that the building is security for payment of rent and for the performance of all other covenants imposed upon the tenant; that the tenant shall “ keep the building situated upon said demised premises ... in good repair, and in a safe and secure condition, . . . and all rooms in said building in a good, safe, clean and tenantable condition and repair during the entire term of this lease ”; that the tenant shall rebuild or repair the building, in event of damage or destruction by fire, upon the same plan as was followed in the original structure or upon such other plans as are approved by the lessors; and that the landlords shall pay the tenant the appraised value of the improvements at the end of the term. Counsel for the Association are of opinion that it has the legal right to tear down the building and to construct the new one, without first obtaining the consent of the several lessors and of the trustee for the bondholders, provided adequate security is furnished for the payment of the ground rent pending the completion of the new building. But the Association deemed it advisable to obtain the consent of the lessors and of the trustee. To that end, negotiations were opened with Willing and one other of the lessors, and there was some talk of purchasing their interests. In the course of an informal, friendly, private conversation, Willing stated to the President of the Association that his counsel had advised that the lessee had no right to tear down the Auditorium Building without the consent of the lessors and of the trustee for the bondholders. Several of the lessors were never approached by anyone on behalf of the Association. Nor was the trustee for the bondholders. After this talk with Willing, a year WILLING v. CHICAGO AUDITORIUM. 287 274 Opinion of the Court. passed without further occurrence. Then, the suit at bar was begun against all the lessors and the trustee for the bondholders. The bill alleged that “under the proper construction and interpretation of the terms, covenants and conditions of said several leases, your orator is fully empowered and has the right to tear down and remove the present improvement as a part of and incidental to the erection of a new improvement of equal or greater value not impairing in any way the security and property right of the said lessors or their successors and assigns, upon furnishing proper and adequate security during the removal of the present improvement and until the completion of the new improvement; but the defendants hereinafter named, or some of them, nevertheless claim and assert, and by reason of such claim and assertion certain persons with whom your orator is obliged to deal in the financing of its aforesaid plans are fearful, that the present building cannot be removed without a violation of the terms, covenants and conditions of said leases . . . The aforesaid claims, fears and uncertainties respecting the rights of the parties to said leases, based upon the terms, covenants and conditions of the leases of said property, have greatly impaired the value of the leasehold interests of your orator, and have made them unmarketable, and have prevented your orator from exercising its rights with respect to said leasehold interests so as to secure therefrom the highest and best use of its interest in the land; and the terms, covenants and conditions of the said leases, in so far as they give color to said claims, fears and uncertainties, are clouds upon the title of your orator, for the removal of and relief against which your orator has no adequate remedy in a court of law.” The bill prayed “ that this court will remove from the several leasehold interests of your orator the above mentioned claims and clouds based upon the alleged force and 288 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. effect of the terms, covenants and conditions of the aforesaid leases, and will fully quiet and establish the title of your orator to the said leasehold properties with full right on the part of your orator to tear down and remove any and all buildings which for the time being may be upon said premises, upon giving proper security . . . ; and that said defendants may also be restrained and enjoined from taking any steps to prevent your orators from tearing down or removing the present building . . There is not in the bill, or in the evidence, even a suggestion that any of the defendants had ever done anything which hampered the full enjoyment of the present use and occupancy of the demised premises authorized by the leases. There was neither hostile act nor a threat. There is no evidence of a claim of any kind made by any defendant, except the expression by Willing, in an amicable, private conversation, of an opinion on a question of law. Then, he merely declined orally to concur in the opinion of the Association that it has the right asserted. For that, or for some other reason, several of the defendants had refused to further the Association’s project. Other defendants had neither done nor said anything about the matter to anyone, so far as appears. Indeed, several refrained, even in their answers, from expressing any opinion as to the legal rights of the parties. Obviously, mere refusal by a landlord to agree with a tenant as to the meaning and effect of a lease, his mere failure to remove obstacles to the fulfillment of the tenant’s desires, is not an actionable wrong, either at law or in equity. And the case lacks elements essential to the maintenance in a federal court of a bill to remove a cloud upon title. The alleged doubt as to plaintiff’s right under the leases arises on the face of the instruments by which the plaintiff derives title. Because of that fact, the doubt is not in legal contemplation a cloud, and the bill to remove it as such does not lie. It is true that the plight of WILLING v. CHICAGO AUDITORIUM. 289 274 Opinion of the Court. which the Association complains cannot be remedied by an action at law. But it does not follow that the Association may have relief in equity in a federal court. What the plaintiff seeks is simply a declaratory judgment. To grant that relief is beyond the power conferred upon the federal judiciary. Liberty Warehouse Co. v. Grannis, 273 U. S. 70, 74. Compare Liberty Warehouse Co. v. Burley Tobacco Growers Ass’n, 276 U. S. 71. The statement, made at the bar, that Blair v. Chicago, 201 U. S. 400, 450, supports the jurisdiction, is unfounded. It is true that this is not a moot case, like Singer Manufacturing Co. v. Wright, 141 U. S. 696, and United States v. Alaska S. S. Co., 253 U. S. 113; that, unlike Keller v. Potomac Electric Co., 261 U. S. 428, 444, and Postum Cereal Co. v. California Fig Nut Co., 272 U. S. 693, the matter which it is here sought to have determined is not an administrative question; that the bill presents a case which, if it were the subject of judicial cognizance, would in form come under a familiar head of equity jurisdiction; that, unlike Gordons. United States, 117 U. S. 697, a final judgment might be given; that, unlike South Spring Hill Gold Mining Co. n. Amador Medean Gold Mining Co., 145 U. S. 300, the parties are adverse in interest; that, unlike Fairchild v. Hughes, 258 U. S. 126, and Massachusetts N. Mellon, 262 U. S. 447, there is here no lack of a substantial interest of the plaintiff in the question which it seeks to have adjudicated; that, unlike New Jersey v. Sargent, 269 U. S. 328, the alleged interest of the plaintiff is here definite and specific ; and that there is here no attempt to secure an abstract determination by the court of the validity of a statute, as there was in Muskrat v. United States, 219 U. S. 346, 361, and Texas v. Interstate Commerce Commission, 258 U. S. 158, 162. But still the proceeding is not a case or controversy within the meaning of Article III of the Constitution. The fact that the plaintiff’s desires are thwarted by its own doubts, or by the 5963°—29------19 290 OCTOBER TERM, 1927. Stone, J., concurring 277 U. S. fears of others, does not confer a cause of action. No defendant has wronged the plaintiff or has threatened to do so. Resort to equity to remove such doubts is a proceeding which was unknown to either English or American courts at the time of the adoption of the Constitution and for more than half a century thereafter, Cross v. De Valle, 1 Wall. 1, 14-16. Compare Jackson v. Turnley, 1 Drew. 617, 627; Rooke v. Lord Kensington, 2 K. & J. 753, 760; Lady Langdale v. Briggs, 8 DeG. M. & G. 391, 427. As the proceeding is not a suit within the meaning of § 28 of the Judicial Code, the motions to remand the cause to the state court should have been granted. Stewart n. Virginia, 117 U. S. 612; Upshur County v. Rich, 135 U. S. 467; Pacific Live Stock Co. n. Oregon Water Board, 241 U. S. 440, 447. Whether, as the respondent contends, it has a remedy under the law of Illinois, we have no occasion to consider. Fulwiler n. Mc-Clun, 285 Ill. 174. Compare McCarty v. McCarty, 275 Ill. 573; Greenough n. Greenough, 284 Ill. 416; Devine v. Los Angeles, 202 U. S. 313, 334-335. Even a statute of the State could not confer a remedial right to proceed in equity in a federal court in a suit of this character. Pusey & Jones Co. v. Hanssen, 261 U. S. 491. Reversed. Concurring opinion of Mr. Justice Stone. I concur in the result. It suffices to say that the suit is plainly not one within the equity jurisdiction conferred by §§ 24, 28, of the Judicial Code. But it is unnecessary, and I am therefore not prepared, to go further and say anything in support of the view that Congress may not constitutionally confer on the federal courts jurisdiction to render declaratory judgments in cases where that form of judgment would be an appropriate remedy, or that this B. & 0. R. R. v. UNITED STATES. 291 274 Syllabus. Court is without constitutional power to review such judgments of state courts when they involve a federal question. Compare Fidelity National Bank & Trust Co. v. Swope, 274 U. S. 123, 130-134. 11 It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.” Burton v. United States, 196 U. S. 283, 295. See Blair v. United States, 250 U. S. 273, 279; Flint v. Stone Tracy Co., 220 U. S. 107, 177; Light v. United States, 220 U. S. 523, 538. There is certainly no “ case or controversy ” before us requiring an opinion on the power of Congress to incorporate the declaratory judgment into our federal jurisprudence. And the determination now made seems to me very similar itself to a declaratory judgment to the effect that we could not constitutionally be authorized to give such judgments—but is, in addition, prospective, unasked, and unauthorized under any statute. BALTIMORE & OHIO RAILROAD COMPANY v. UNITED STATES et al. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. No. 404. Argued April 11, 1928.—Decided May 21, 1928. 1. Western railroads with termini at St. Louis (the “west-side” roads) exchanged traffic with railroads east of the Mississippi (the “ east-side ” roads) by means of a terminal company owned jointly or controlled by appellants and appellees. (See Terminal R. R. Ass’n v. United States, 266 U. S. 17.) In order to meet the competition on through freight of the Chicago and Alton and other western railroads which reached East St. Louis by means of independent crossings, the “west-side” roads had long made the same rates on that point as on St. Louis, absorbing the Terminal’s transfer charges on west-bound as well as east-bound traffic. The “ east-side ” roads bore no part of such charges and where, as in most cases, their St. Louis and East St. Louis rates were the same, they were limited by appropriate tariff provisions 292 OCTOBER TERM, 1927. Statement of the Case. 277 U. S. to East St. Louis as applied to through traffic moving on combination rates. On complaint of the “ west-side ” roads, the Interstate Commerce Commission ordered the “ east-side ” roads in the future to bear or absorb all the transfer charges on all westbound traffic moving on combination rates, which were the same on St. Louis as on East St. Louis, holding the existing arrangement to be an unjust and unreasonable “practice,” under § 1 (6) and (11) and § 15 (1) of the Act to Regulate Commerce, although there was no question concerning the furnishing of facilities or the handling of traffic, and no proof that the complainants justly should not bear the burden of transfer in both directions, like their competitors. Edd, that the order could not be sustained. Pp. 294-302. 2. The term “ practice ” in the Act to Regulate Commerce, owing to its wide and variable connotations, should be confined to acts or things belonging to the same general class as those meant by the words associated with it in the statute. P. 299. 3. Semble that “practice,” as used in § 1 (6), (11), and § 15 (1) of the Act, does not include or refer to the method or basis used by connecting carriers for the division of revenues, whether the revenues be derived from joint rates or from combination through rates. P. 300. 4. Even if the above-described arrangement by which the “westside ” roads bear the transfer charges on west-bound as well as east-bound through traffic moving on combination rates were a “ practice,” the Commission would not be authorized to set it aside without adequate evidence that it is unjust or unreasonable. Id. 5. Proof of a practice among carriers whereby the delivering carrier bears the cost of switching when interchange is effected by means of an intermediate carrier, did not tend to prove that the arrangement complained of in this case was unjust or unreasonable. P. 301. 6. In determining the reasonableness of the apportionment of revenues derived from combination rates, the same considerations apply as govern the divisions of joint rates under § 15 (6) of the Act. Id. Reversed. Appeal from a decree of the District Court dismissing, for want of equity, a suit to set aside an order of the-Interstate Commerce Commission. B. & 0. R. R. v. UNITED STATES. 293 291 Opinion of the Court. Mr. Morison R. Waite, with whom Messrs. D. P. Connell, Homer T. Dick, W. A. Northcutt, Guernsey Orcutt, Charles J. Rixey, Louis H. Strasser, W. J. Stevenson, Elmer A. Smith and Frank H. Towner 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. J. Stanley Payne, with whom Mr. P. J. Farrell was on the brief, for the Interstate Commerce Commission. Mr. M. G. Roberts, with whom Messrs. Joseph M. Bryson, W. F. Dickinson, Edward J. White, E. T. Miller, C. S. Burg, Wallace T. Hughes and H. H. Larimore were on the brief, for the Western Carriers, Appellees. Mr. Justice Butler delivered the opinion of the Court. The appellants,1 for convenience called the east side lines, brought this suit to set aside an order of the Interstate Commerce Commission in respect of charges for transporting certain westbound through traffic from the lines east of the Mississippi at East St. Louis to the lines 1 Appellants are: The Baltimore & Ohio Railroad Company; William W. Wheelock and William G. Bierd, Receivers of the Chicago & Alton Railroad Company; Chicago & Eastern Illinois Railway Company; The Cleveland, Cincinnati, Chicago & St. Louis Railway Company; Illinois Traction, Inc.; Illinois Central Railroad Company; Litchfield & Madison Railway Company; Louisville & Nashville Railroad Company; Mobile & Ohio Railroad Company; The New York, Chicago & St. Louis Railroad Company; The Pennsylvania Railroad Company; Southern Railroad Company, and Wabash Railway Company. Appellees are: The Chicago, Rock Island & Pacific Railway Company; Missouri-Kansas-Texas Railroad Company; Missouri Pacific Railroad Company, and St. Louis-San Francisco Railway Company. 294 OCTOBER TERM, 1927. Opinion of the Court. 277U.S. west of the river at St. Louis. The Commission and the carriers on whose complaint the order was made intervened. The district court, consisting of three judges (U. S. C., Tit. 28, § 47) dismissed the case for want of equity. The order was made by the Commission after hearing on the complaint of four west side lines. They alleged that the practice of the east side lines requiring them to bear the expenses of transporting westbound through traffic across the river is unjust, unreasonable and illegal. They made no complaint as to the eastbound traffic, but they sought to be relieved from such charges on all the westbound through business and prayed reparation on account of such costs borne in the two years preceding the complaint. The Commission filed a report which was made a part of the order. 113 I. C. C. 681. It held—its Chairman and two other members dissenting—that the matter in controversy is a “practice” within the meaning of the Act. It found “that for the future the practice of the east side lines in requiring the west side lines to bear the transfer charges on westbound freight traffic moving through St. Louis and East St. Louis on combination rates which are the same on St. Louis as on East St. Louis will be unjust and unreasonable, and that the just and reasonable practice with respect to such traffic will be for the east side lines to bear or absorb all such transfer charges.” The Commission was not convinced that the acceptance by the west side lines of divisions of joint rates did not constitute an acquiescence, tantamount to an agreement on their part to pay a transfer charge on through traffic moved on such rates. But it commended to the carriers a careful study of the divisions of joint rates on westbound traffic with a view to readjustment if necessary to conform to the just and reasonable practice in respect of interchange approved by the report. Reparation was denied. B. & 0. R. R. v. UNITED STATES. 295 291 Opinion of the Court. The order2 requires no change of divisions of revenues derived from traffic moving on, joint rates. It covers only such of the westbound traffic as moves on combination through rates. It shifts from the west side lines to the carriers east of the river the burden of transferring that freight from east to west across the river. No change is ordered in the method of handling the traffic. No lack of facilities for the through routes, § 1 (3) (4), or for making the transfers, § 3 (3) was shown or found. The appellants contend that the controversy involved rates and divisions and not a “ practice ” within the meaning of the Act, and that the evidence before the Commission was not sufficient to support a finding that it is or will be unjust or unreasonable to require the west side lines to bear such transfer charges or to warrant the order. 2“It is ordered, That the above-named defendants, according as they participate in the transportation, be . . . required to cease and desist, on or before October 12, 1926, and thereafter to abstain from the practice of requiring the above-named complainants together with the Chicago, Burlington & Quincy Railroad Company and the Wabash Railway Company, to bear the charges for transfer services from East St. Louis, Ill., to St. Louis, Mo., on westbound freight traffic passing through both points on combination rates which are the same on St. Louis as on East St. Louis. “It is further ordered, That said defendants, according as they participate in the transportation, be, . . . required to establish, on or before October 12, 1926, upon notice to this commission and to the general public by not less than 30 days’ filing and posting in the manner prescribed in section 6 of the interstate commerce act, and thereafter to maintain and apply to the transportation of westbound freight traffic passing through both East St. Louis, Ill., and St. Louis, Mo., on combination rates which are the same on St. Louis as on East St. Louis, and delivered to complainants, or the Chicago, Burlington & Quincy Railroad Company or the Wabash Railway Company, the practice of bearing or absorbing on such traffic the charges for transfer services from defendants’ lines in East St. Louis, Ill., to the lines of complainants, or of the Chicago, Burlington & Quincy Railroad Company or the Wabash Railway Company in St. Louis, Mo.” 296 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. The traffic at this crossing is very large. The railroad lines of the east side carriers terminate on the east bank, those of the appellee carriers on the west bank, and some carriers have lines on both sides. All, or practically all, of the traffic is handled for interchange between lines east and lines west by the Terminal Railroad Association and its’ subsidiaries. They are jointly owned or controlled by appellant and appellee lines. The arrangements for their use contemplate equal treatment of all carriers served by them. The proprietary companies have trackage rights over the lines of the Association between St. Louis and East St. Louis, but ordinarily they do not use them. The average haul for transfer across the river is about ten miles. The cost is higher than that attending transportation for like distances under ordinary circumstances. The transfer charges complained of were assumed by appellee lines in order to enable them to compete with other railroads west of the Mississippi River. At first there was a separate rate or charge for the haul across the river. But in 1877, the Chicago & Alton Railroad Company built a line from the west across the Mississippi at Louisiana, Missouri, to a junction with its north and south line east of the river. That extension enabled it to open a route from the west to East St. Louis and there , interchange with the east side lines. This competition for the haul between East St. Louis and the territory west of St. Louis compelled the four appellee lines to bear the cost of transferring across the river all through traffic in both directions. The Commission’s report shows that now five of the eight lines on the west side that serve St. Louis also reach East St. Louis, and that three of them handle freight traffic to points west of the river without taking it through St. Louis. This is competition that must be met—if they would participate in the business—by the west side lines that reach East St. Louis only by means B. & 0. R. R. v. UNITED STATES. 297 291 Opinion of the Court. of the facilities and services of the Association and its subsidiaries. Since the Alton opened its route to the west, the appellee lines have maintained the same rates from and to East St. Louis as from and to St. Louis. And, about 1908, upon the insistence of the business interests of St. Louis, the lines east of the river published and have since maintained, with some exceptions that need not be specified, the same rates from and to St. Louis as from and to East St. Louis. This was done by reducing the rates to and from St. Louis and by advancing most of the rates to and from East St. Louis. The decrease in revenue resulting from the reductions was much greater than the increase arising from the advances. In 1905 the United States brought suit against the Terminal Railroad Association, carriers involved in this controversy and others in the district court for the eastern district of Missouri to prevent violations of the Sherman Anti-trust Act. A final decree in favor of the United States was entered in 1917 in accordance with the directions of this Court. 224 U. S. 383, 236 U. S. 194. On petition filed in that case by the appellee lines some years after the final decree, the district court, February 8, 1923, adjudged that in contempt of its decree the Association, its subsidiaries and proprietary companies, had continuously compelled the appellee lines to pay transfer charges for interchange between them and the east side lines on through traffic in both directions. It directed the east side lines to cease such violations and to pay for the use of the west side lines the total amount of the charges paid by the latter for the transfer of westbound through freight from March 2, 1914, to the date of the order. The east side lines and other companies so adjudged in contempt appealed; and, on October 13, 1924, this Court held that the original decree did not regulate rates, prescribe divisions of joint rates or fix liability for the transfer charges; that contempt proceedings did not lie to de 298 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. termine the controversy between the east side lines and the west side lines or to require the former to make the payments ordered. Terminal Railroad Ass’n v. United States, 266 U. S. 17, 29, et seq. The Commission’s report states that the question before it was “ whether the east side lines or the west side lines should bear the expense incident to the transfer across the Mississippi River from East St. Louis, Ill., to St. Louis, Mo., of practically all carload and less-than-carload through freight originating east of the St. Louis-East St. Louis district and destined west thereof.” And the thing ordered by the Commission is the absorption by the east side lines of the transfer charges on westbound through traffic. It directed them to do exactly what the district court required them to do except that the latter’s decree related to the past and the order of the Commission relates to the future. The matters in controversy in both proceedings were purely financial. There was no question concerning furnishing of facilities or the handling of traffic. The larger part of the through traffic interchanged through the East St. Louis-St. Louis gateway moves on joint rates; and, for the purpose of divisions among participating carriers, these rates are deemed to “ break ” at East St. Louis.. Each is made up of an amount to cover the part of the haul east of East St. Louis and an amount to cover the movement between that place and points west of St. Louis. The first amount goes to the lines east and the other, less the transfer charge, goes to carriers west of the river. Through traffic not covered by joint rates moves on through rates made up of combinations of local rates or local and proportional rates to and from East St. Louis. Where the combination on St. Louis is the same as on East St. Louis, the lines east of the river, by appropriate tariff provisions, § 6 (1), make their St. Louis-East St. Louis rates apply only to and from B. & 0. R. R. v. UNITED STATES. 299 291 Opinion of the Court. East St. Louis. There are some exceptions, but they need not be set forth here. So all the revenues yielded by such rates, without deduction on account of charges for transfer, are retained by the carriers in the territory east of the river. But the Commission’s order requires the rates, so by tariff provisions limited to East St. Louis, to be extended to St. Louis. This operates to deduct the cost of transfer from their revenue. In effect it is to require the cancelation of such tariff provisions, and to authorize a corresponding change in the tariffs of the appellee lines. It results that the controversy before the Commission involved divisions or apportionments of revenues derived from through traffic. In holding that the matter in controversy is a “ practice” within the meaning of the Act, the Commission relied on § 1 (6) and (11) and § 15 (1). Paragraph (6) makes it the duty of carriers to establish just and reasonable regulations and practices affecting classifications, rates or tariffs. Paragraph (11) requires them to furnish an adequate car service and to establish just and reasonable rules, regulations and practices, and declares to be unlawful every unjust and unreasonable rule, regulation and practice in respect of car service. The phrase “ car service” is defined by paragraph (10) to include the exchange, interchange and return of locomotives, cars and other vehicles and also the supply of trains used by any carrier. Paragraph (1) of § 15 provides that whenever the Commission shall be of opinion that any individual or joint rate or classification, regulation or practice is or will be unjust or unreasonable, the Commission may prescribe just and reasonable rates, classifications, regulations or practices. The word “ practice,” considered generally and without regard to context, is not capable of useful construction. If broadly used, it would cover everything carriers are accustomed to do. Its meaning varies so widely and de 300 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S, pends so much upon the connection in which it is used that Congress will be deemed to have intended to confine its application to acts or things belonging to the same general class as those meant by the words associated with it. United States v. Pennsylvania Railroad Co., 242 U. S. 208, 229. When regard is had to that rule and the restrictions required to give the word a reasonable construction, it seems quite clear that “ practice ” as used in the provisions relied on by the Commission, does not include or refer to the method or basis used by the connecting carriers for their divisions of rates or revenues. And this is so whether the revenues are derived from joint rates or from combination though rates. But even if the matter in controversy were a “ practice ” within the meaning of the Act, the Commission would not be authorized to set it aside without evidence that it is unjust or unreasonable. Paragraph (6) of § 15 empowers the Commission to prescribe divisions of joint rates, but there must be evidence adequate to justify action. Brimstone Railroad & Canal Co., v. United States, 276 U. S. 104. United States v. Abilene & Southern Ry. Co., 265 U. S. 274. New England Divisions Case, 261 U. S. 184. That rule may not be avoided by a broad construction of the word “ practice.” The record here contains all the evidence that was submitted to the Commission. Its report shows that “ the propriety of divisions was not the subject of inquiry and investigation.” The appellee lines adopted the policy of absorbing the transfer charges in order to meet competition of the Alton and have since continued to divide joint rates and apply their St. Louis-East St. Louis rates in combination on that basis. There is a strong presumption that the general level of their rates has been adjusted to include reasonable compensation for the services covered by them. The Commission found that appellee lines have long acquiesced B. & 0. R. R. v. UNITED STATES. 301 291 Opinion of the Court. in the division of revenue derived from traffic moving on joint rates. They have not, by tariff provisions or otherwise, attempted to limit to St. Louis their St. Louis-East St. Louis rates when used in combination to move through traffic. The Alton and other like competitors of appellee lines bear the qost of the transfer across the river. The order makes no change as to them. But it takes the corresponding costs off appellee lines and puts that burden on the east side lines. The latter are required to absorb the transfer cost only when the traffic moves over the appellee lines. The Commission appears to have relied on evidence tending to show that, usually, when interchange is effected by means of an intermediate carrier, the delivering carrier bears the cost of switching. But such a practice does not tend to prove that it is unjust or unreasonable for the appellee lines, in order to meet competition of other west side lines, to bear the cost of transfer in both directions, or that the east side lines may not justly and reasonably limit their rates to East St. Louis when used in combination on through traffic at that gateway and so put appellee lines on equal footing with their competitors. The same considerations apply in determining the reasonableness of the apportionment of revenues derived from combination rates as govern the divisions of joint rates. The merits of the changes made by the order cannot be determined without a consideration of facts substantially similar to those specified in paragraph (6) of § 15 relating to the division of joint rates. The case was not presented by complainants or considered by the Commission on that basis. There was no evidence to show the amount of revenue required to pay operating expenses, taxes and a fair return on the property of appellee lines or that their rates were not adjusted or were not sufficient to cover the transfer charges in question. There was nothing to sup 302 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. port a finding that it is or will be unjust or unreasonable for the appellee lines to bear the cost of transfer of the westbound through traffic. The order cannot be sustained. Florida East Coast Ry. v. United States, 234 U. S. 167. Louis. & Nash. R. R. v. United States, 238 U. S. 1. Decree reversed. McCOY v. SHAW, STATE AUDITOR, et al. CERTIORARI TO THE SUPREME COURT OF OKLAHOMA. No. 403. Submitted April 9, 1928.—Decided May 21, 1928. A suit to enjoin collection of a tax as violative of treaties between the United States and the Chickasaw Indians and of certain Acts of Congress, was dismissed by the state court upon the ground that there was a plain, adequate and exclusive remedy at law by paying the tax under protest and suing for its recovery. Held that this Court had no jurisdiction to review, as the judgment was put upon an independent, non-federal ground, adequate to sustain it. P. 303. Certiorari to 124 Okla. 256, dismissed. Certiorari, 275 U. S. 515, to a judgment of the Supreme Court of Oklahoma, dismissing a suit to enjoin collection of taxes. Messrs. Robert M. Rainey, Streeter B. Flynn, Calvin Jones and Jay W. Whitney were on the brief for petitioner. Messrs. Edwin Dabney, Attorney General of Oklahoma, and V. P. Crowe, Assistant Attorney General, were on the brief for respondents. Mr. Justice Sanford delivered the opinion of the Court. McCoy, the petitioner, a Chickasaw Indian of onefourth blood, brought this suit in equity in a state court McCOY v. SHAW. 303 302 Opinion of the Court. of Oklahoma to enjoin the collection of a gross production tax on his one-eighth royalty interest in the oil produced under a lease of lands patented to him as his homestead and surplus allotments from which all restrictions on alienation and incumbrance had been removed—claiming that this tax on his royalty share in the oil was in violation of the treaties between the United States and the Chickasaw Indians and the Acts of Congress relating thereto. The court dismissed the suit on motion, for want of equity; and this was affirmed by the Supreme Court of Oklahoma, without consideration of the federal question, on the ground that under §§ 9971 and 9973 of the Compiled Oklahoma Statutes, 1921, the petitioner had a plain, adequate and exclusive remedy at law by paying the tax under protest and suing for its recovery. 124 Okla. 256. It is settled law that a judgment of a state court which is put upon a non-federal ground, independent of the federal question involved and broad enough to sustain the judgment, cannot be reviewed by this Court, unless the non-federal ground is so plainly unfounded that it may be regarded as essentially arbitrary or a mere device to prevent the review of a decision upon the federal question. Leathe v. Thomas, 207 U. S. 93, 99; Vandalia Railroad v. South Bend, 207 U. S. 359, 367; Enterprise Irrig. Dist. v. Canal Co., 243 U. S. 157, 164; Ward v. Love County, 253 U. S. 17, 22; and cases therein cited. Here the non-federal ground upon which the Oklahoma court based its decision—namely, that under the Oklahoma statutes the petitioner had a plain, adequate and exclusive remedy at law—was based on its earlier decision in Black v. Geissler, 58 Okla. 335. It is in harmony with the decisions of this Court relating to similar statutes of other States. Tennessee v. Sneed, 96 U. S. 69, 75; Shelton v. Platt, 139 U. S. 591, 595; Indiana Mfg. 304 OCTOBER TERM, 1927. Syllabus. 277 U. S. Co. v. Koehne, 188 U. S. 681, 686; Raymond v. Chicago Traction Co., 207 U. S. 20, 39; Singer Sewing Mach. Co. v. Benedict, 229 U. S. 481, 487; Union Pac. R. R. Co. v. Weld County, 247 U. S. 282, 285. And no intent to evade the federal question is indicated. We are without authority to determine thg federal right claimed by the petitioner. And the writ of certiorari is Dismissed for want of jurisdiction. SOUTHERN PACIFIC COMPANY v. HAGLUND, ADMINISTRATRIX, et al. SAME v. MOORE SHIPBUILDING COMPANY et al. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. Nos. 472, 473. Submitted April 13, 1928.—¡Decided May 21, 1928j While a steamship, without power or lookout, was being held “ dead ” across a channel by a tug, leaving, however, ample space for navigation past her stern, a ferryboat, approaching the opening with its view of the channel beyond obstructed by the steamer, blew a single blast of her whistle, indicating her intention to pass in the rear of the steamer, and having received an acceptance by a like blast from the tug, continued at full speed until within the opening, when, perceiving another vessel approaching her, though not dangerously near, she began prematurely her movement to pass her and struck and injured the steamer. Held: 1. The collision was due solely to the negligence of the ferryboat. P. 309. 2. The signal of the tug was merely its assent to the proposed passing in the rear of the steamer. P. 310. 3. The tug was not at fault in accepting the passing signal and in not sounding a warning instead, though aware of the approach of the vessel on the other side, there being nothing in the situation to indicate that the ferryboat would be thereby prevented from passing the steamer safely, if navigated with due care. Id. SOUTHERN PACIFIC v. HAGLUND. 305 304 Argument for Petitioner. 4. The steamer was not at fault in not having a lookout. The Ariadne, 13 Wall. 475, distinguished. P. 310. 19 F. (2d) 878, affirmed. Certiorari, 275 U.*S. 517, to decrees of the Circuit Court of Appeals, affirming two decrees in admiralty against the petitioner for damages caused in a collision by its ferryboat. Mr. Wm. Denman submitted for petitioner. The whistle acceptance of a tendered passing signal is a positive assertion that no danger exists which is known to the accepting vessel and concealed from the vessel signalling for the maneuver. If there is such a danger, the vessel knowing it owes a positive duty to the asking vessel to blow the danger signal. A vessel knowing of such concealed danger and accepting a passing signal and failing to blow the danger signal, is in fault and is responsible for a collision “caused” by the hidden danger. The tendering vessel may rely on the assurances of the accepting vessel and is not at fault for damages arising from proceeding as if the hidden danger were not there. The contrary rule, laid down by the Ninth Circuit in this case, is opposed to the rule as recognized in the Second, Fourth, Sixth, and Eighth Circuits and all other cases. It is not the law and is a menace to life and property at sea. The American, 92 U. S. 432; The Genevieve, 95 Fed. 859; The F. W. Wheeler, 78 Fed. 824; The Edna V. Crew, 202 Fed. 1021; The Lowell M. Palmer, 142 Fed. 937; Atlas Trans. Co. v. Lee Line, 235 Fed. 492, on rehearing, 238 Fed. 349; The Richmond, 275 Fed. 970; The Alabama, 114 Fed. 214; Santa Maria, 227 Fed. 149; Werdenfels, 150 Fed. 400; The Luther C. Ward, 149 Fed. 787. 5963°—29--------20 306 OCTOBER TERM, 1927. Argument for Petitioner. 277 U. S. The Relief, and tow, should be held in sole fault, for had the circumstances been as safe as they properly seemed to the Thoroughfare, and as the Reliefs acceptance told her they were, there was nothing which could possibly have caused a collision. The Thoroughfare would have passed safely on through the deep, straight and unobstructed channel, without hurt to anyone. The Thoroughfare was in extremis when at the stern of the Enterprise. Her sudden turn to avoid her danger was her only salvation, the only thing she could do. The turn was, therefore, the proximate result of the antecedent invitation by the Relief to enter the trap, from which the Thoroughfare struggled to escape. The burden of proof is on each vessel to establish fault on the part of the other. The Victory, 168 U. S. 410. Where fault on the part of one vessel is established by uncontradicted testimony, and such fault is, of itself, sufficient to account for the disaster, it is not enough for such vessel to raise a doubt with regard to the management of the other vessel. The City of New York, 147 U. S. 72. It is elemental that there should be a lookout on a tow which obscures the vision of a tug from approaching vessels. Nevada N. Quick, 106 U. S. 154; Edward G. Murray, 234 Fed. 61; James A. Lawrence, 117 Fed. 228; Gladiator, 132 Fed. 876; Arthur M. Palmer, 115 Fed. 420. Every doubt as to the performance of the duty, and the effect of non-performance, should be resolved against the »vessel sought to be inculpated until she vindicates herself by testimony conclusive to the contrary. The Ariadne, 13 Wall. 475; The Anna, 201 Fed. 58. The mere finding that the Thoroughfare's act is the proximate cause does not make it the sole cause and does not absolve the court from considering whether the absence of a lookout was not a contributing cause. The International, 143 Fed. 468. SOUTHERN PACIFIC v. HAGLUND. 307 304 Opinion of the Court. Mr. Ira S. Lillick, with whom Mr. Hunt C. Hill was on the briefs, submitted for the respondents, Moore Shipbuilding Company and Hildur Haglund, Administratrix. Mr. J. F. Sullivan, with whom Messrs. Edward I. Barry and Theodore J. Roche were on the brief, submitted for the respondent, Rolph Navigation & Coal Company. Mr. Justice Sanford delivered the opinion of the Court. These two suits in admiralty, which were brought in the federal court for northern California, arose out of a collision between the ferryboat Thoroughfare and the steamship Enterprise in charge of the tug Relief, in the channel of San Antonio Creek, known as the Oakland Estuary, which resulted in damages to the Thoroughfare and the Enterprise, and the killing of Ernest Haglund, a workman on the Enterprise. In No. 472 the administratrix of Haglund’s estate libelled the Southern Pacific Co., the owner of the Thoroughfare, and the Rolph Navigation & Coal Co., the owner of the Relief, for the damages arising from his death. In No. 473 the Moore Shipbuilding Co. libelled the Thoroughfare for the damages to the Enterprise; and the Southern Pacific Co., as claimant of the Thoroughfare, brought in as third party respondents the Enterprise, the Relief and the Rolph Navigation & Coal Co., to answer for the damages to the Thoroughfare.1 The suits were tried on the same evidence as to the responsibility for the collision, and were consolidated for hearing in the Circuit Court of Appeals. The District Court found that the collision was caused solely by the negligence of the Thoroughfare, without fault on the part of the Relief or the Enterprise, and entered decrees against 1 Another tug, the Hercules, belonging to the Rolph Navigation & Coal Co., which was also impleaded, is not here involved. 308 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. the Southern Pacific Co. for the damages to the Enterprise and the death of Haglund. These decrees were affirmed by the Circuit Court of Appeals. 19 F. (2d) 878. The channel of the Estuary, the great artery of commerce between San Francisco and Oakland, is 500 feet wide. The collision occurred about noon, on a clear day. The Enterprise, a steam freighter 320 feet long, which was undergoing repairs at the yard of the Moore Shipbuilding Co. on the north bank of the Estuary, was let down stem foremost on a marine railway into the waters of the Estuary, and lay at right angles across the channel. She was without power, had no lookout, and had been placed by the Shipbuilding Company in charge of the Relief to be berthed at a nearby wharf on the Company’s plant.2 The Thoroughfare, a steam ferryboat, was then approaching at her full speed of 13 miles an hour on an easterly course through the Estuary. When about 2,900 feet away she sounded a single blast of her whistle. This was not answered by the Relief, which was then engaged in stopping the stemway of the Enterprise towards the south side of the channel. When the Thoroughfare had approached within about 1,000 feet of the Enterprise, the Relief had arrested the movement of the Enterprise and was holding her dead in the water, with her stem about 100 feet from the south edge of the channel, leaving an ample opening for the passage of the Thoroughfare. At this distance the Thoroughfare again sounded a single blast of her whistle, indicating an intention to direct her course to starboard and pass in the rear of the Enterprise. This was accepted by the Relief by a like single blast. At this time the master of the Relief was aware of the presence at a considerable distance on the other side of 2 The Relief was assisted by the tug Hercules referred to in note 1, supra. SOUTHERN PACIFIC v. HAGLUND. 309 304 Opinion of the Court. the Enterprise of the tug Union3 which, with a tow, was approaching on a westerly course near the south edge of the channel. The master of the Thoroughfare, whose view was then intercepted by the Enterprise, was not aware of the presence of the Union. After the Relief gave her answering signal the Thoroughfare continued to advance at full speed, for about 1,000 feet, heading for the 100 foot opening between the stem of the Enterprise and the edge of the channel, and not knowing what vessels might be encountered on the other side. Meanwhile the Enterprise remained at rest without any change in position. Just as the Thoroughfare was about to pass, she saw the Union approaching on the other side and blew two whistles to indicate her intention of passing on the starboard side of the Union after she got clear of the Enterprise. This was accepted by two blasts from the Union. But before clearing the Enterprise the Thoroughfare suddenly changed her course to port, and struck the Enterprise. There was no occasion for this change to port. The Thoroughfare was not then in peril; the Union was about 900 feet away and had already slowed down; and the Thoroughfare would have had ample time and space after clearing the Enterprise in which to go to port and pass on the starboard side of the Union in accordance with the previous exchange of signals. And the Thoroughfare could herself have stopped within 300 feet. We agree with the view of both the lower courts that the collision was caused solely by the negligence of the Thoroughfare, which not only approached the passageway in the rear of the Enterprise at full speed, without knowing whether she would encounter any vessel on the other side, but needlessly commenced the execution of the passing movement with the Union before she had cleared the 3 The Union is not brought into these suits. 310 OCTOBER. TERM, 1927. Opinion of the Court. 277 U. S. Enterprise; and that there was no contributing fault on the part of the Relief or the Enterprise. The Relief was not at fault in accepting the passing signal of the Thoroughfare. This was merely an assent to the proposed passage in the rear of the Enterprise, expressing an understanding of what the Thoroughfare proposed to do and an agreement not to endanger or thwart it by permitting an interfering change in the position of the Enterprise. See Atlas Transp. Co. v. Lee Line Steamers (C. C. A.), 235 Fed. 492, 495. And the Relief, being in a position to fully carry out its agreement, was under no obligation to decline the passing signal because of the approach of the Union on the other side and to sound instead a warning signal. There was nothing in the situation to indicate that the approach of the Union would prevent the Thoroughfare from passing safely, if, as the Relief had the right to assume, it were navigated with due care. See Atlas Transp. Co. v. Lee Line Steamers (C. C. A.), 238 Fed. 349, on petition for rehearing. The doctrine of The F. W. Wheeler (C. C. A.), 78 Fed. 824, that a moving tug is in fault in accepting, without warning, a passing signal when she knows that the passage is obstructed by her grounded tow whose movement she cannot control, has no application here. Nor was the Enterprise at fault in not having a lookout. The rule stated in The Ariadne, 13 Wall. 475, 478, as to the responsibility of a moving vessel for the failure of her lookout to discover an approaching vessel in time to avoid a collision, does not apply to a vessel in the position of the Enterprise, which was at rest, without power; and the absence of a lookout upon her did not in any manner contribute to the collision. Decrees affirmed. STIPCICH v. INSURANCE CO. 311 Syllabus. STIPCICH v. METROPOLITAN LIFE INSURANCE COMPANY. CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 97. Argued November 30, 1927. Reargued March 6, 1928.— Decided May 21, 1928. 1. An applicant for life insurance who, after signing the application and before delivery of the policy, discovers a change in his physical condition seriously affecting his health and rendering statements in his application which are material to the risk no longer true, is under a duty to inform the insurer fully, and his failure to do so will .constitute a defense to an action on the policy. So held where the ailment so discovered was the cause of the death of the insured. P. 316. 2. This duty does not rest upon the stipulations of the parties, but is one imposed by law as the result of their relationship and because of the peculiar character of the insurance contract as a contract uberrimae fidei. Pp. 316-318. 3. A state statute providing that “ any person who shall solicit and procure an application for life insurance shall, in all matters relating to such application for insurance and the policy issued in consequence thereof, be regarded as the agent of the company issuing the policy and not the agent of the insured,” and avoiding all provisions in the application or policy to the contrary, controls policies issued after its enactment and empowers the agent to receive from the applicant on behalf of the company, a disclosure of a change in the applicant’s health occurring after the making of the application and affecting the validity of the insurance if not disclosed. P. 320. 4. Under such a statute, a clause printed in a life insurance application, embodied in the policy, denying the authority of the soliciting and forwarding agent to vary the terms of the contract, waive conditions or receive information sought «by questions in the application other than that embodied in it—held inapplicable to receipt of information from the applicant as to a change in his health, after the making and forwarding of the application and before delivery of the policy. P. 321. 312 OCTOBER TERM, 1927. Argument for Stipcich. 277 U. S. 5. A provision in a life insurance application that any knowledge on the part of any agent as to any facts pertaining to the applicant shall not be considered as having been brought to the knowledge of the company unless stated in the application, should not be construed as applying to knowledge affecting the risk which insured acquired and communicated to the company’s agent after the application was signed and delivered to the agent and sent to the company’s home office in another State. P. 321. 6. Narrow and unreasonable interpretations of clauses in an insurance policy are not favored. When open, with equal reason, to two constructions, the one most favorable to the insured will be adopted. P. 322. 7. A defense set up in an answer, but not considered in the court below nor pressed in this one, and which depends on testimony ambiguous in character or excluded upon the trial, will not be passed upon by this Court. Id. Reversed. Review of a judgment of the District Court for the insurance company in a suit on a life insurance policy. The case went to the Circuit Court of Appeals and was ordered up here in its entirety after that court had certified certain questions concerning it. Mr. Chester I. Long, with whom Messrs. George E. Chamberlain, Peter Q. Nyce, and G. C. Fulton were on the brief, for Stipcich. The condition of health of applicant between the date of application and delivery of the policy is not material under the provisions of the policy. The statutes of Oregon are a part of the policy, as though written therein. Where there is a conflict between a provision in the policy and a statute, the provision in the policy is void. Nat’l Ins. Co. v. Wanberg, 260 U. S. 71; Continental Life Ins. Co. v. Chamberlain, 132 U. S. 304. The policy is the entire contract, and all conditions must be in it. Northwestern Life Ins. Co. v. Riggs, 203 U. S. 243; Cable v. U. S. Life Ins. Co., Ill Fed. 19; Thompson v. Travelers Ins. Co., 13 N. D. 444. STIPCICH v. INSURANCE CO. 313 311 Argument for the Insurance Company. The agent must be licensed and he represents the company in all matters. The stipulation attempting to limit the agent’s authority is void. The stipulation is not applicable to subsequent events here involved. Between two constructions of an insurance policy, the one most favorable to the insured is to be taken. Nat’l Bank v. Insurance Co., 95 U. S. 673; Thompson v. Phoenix Ins. Co., 136 U. S. 297; American Surety Co. v. Pauly, 170 U. S. 144; McMaster v. New York Life Ins. Co., 183 U. S. 25; Williams v. Pacific States Fire Ins. Co., 120 Ore. 1. Mutual Life Co. v. Hilton-Green, 241 U. S. 613, is not in point. Other cases cited by defendant in error are inapplicable as no statutes were involved making limitation of agent’s authority void. Mr. F. Eldred Boland, with whom Mr. Samuel Knight was on the brief, for Metropolitan Life Insurance Company. The representations made by an applicant for life insurance must be true as of the time of the consummation of the contract; and if there is any change in the physical condition of the applicant material to the risk, occurring between the making of the application and the consummation of the contract, it is imperative upon him to notify the company. M’Lanahan v. Universal Ins. Co., 1 Pet. 170; Piedmont & A. L. Ins. Co. v. Ewing, 92 U. S. 377; Equitable Life A. Society v. McElroy, 83 Fed. 631; Cable v. U. S. Life Ins. Co., Ill Fed. 19; Watson v. Delafield, 2 Caines 224, 1 Johns. 150, 2 Johns. 526; Whitley v. Piedmont etc. Ins. Co., 71 N. C. 480; Thompson v. Travelers Ins. Co., 13 N. D. 444; Graham v. General Mut. Ins. Co., 6 La. Ann. 4832; Hart v. British & F. M. Ins. Co., 80 Cal. 440; Carleton v. Patrons Fire Ins. Co., 109 Me. 79; Harris v. Security Ins. Co., 130 Tenn. 325; Traill v. Baring, 4 De 314 OCTOBER TERM, 1927. Opinion of the Court. 277 U. 8. G. J. & S. 318; British Equitable Ins. Co. v. Great Western R. R., 38 L. J. Ch. (N. S.) 314; Canning v. Farquhar, L. R. 16 Q. B. Div. 727. The policy is the entire contract; including the representations in the application as to the condition of health at the time the policy was delivered. Both the law of Oregon and the policy provide that the policy and application shall state the entire contract. The policy as issued and delivered does not in reality state the entire contract; it omits to mention the changed condition, a very important, even paramount, element of the contract. If Stipcich had read the contract, as it was his duty to do, he would have known that he had not made known his changed condition at all, or that Coblentz, the agent, had omitted to mention it to the insurance company. In either case his continued silence would violate his obligation. New York Life Ins. Co. v. Fletcher, 117 U. S. 519; Mutual Life Ins. Co. v. Hilton-Green, 241 U. S. 613. An insurer has the right to limit its agents’ authority and to provide that the knowledge of the soliciting agent concerning matters material to the risk shall not be imputed to the principal. Northern Assurance Co. v. Grand View Building Ass’n, 183 U. S. 308; New York Life Ins. Co. n. Fletcher, 117 U. S. 519; Aetna Life Ins. Co. n. Moore, 231 U. S. 543; Mutual Life Ins. Co. v. Hilton-Green, supra; Hartford Fire Ins. Co. v. Nance, 12 F. (2d) 575; Hartford Fire Ins. Co. n. Jones, 15 F. (2d) 1. Mr. Justice Stone delivered the opinion of the Court. The plaintiff brought this action in the circuit court for Clatsop County, Oregon, as beneficiary of a policy by which the defendant had insured the life of her husband, Anton Stipcich. The case was removed for diversity of citizenship to the United States district court for Oregon. The company defended principally on the ground that STIPCICH v. INSURANCE CO. 315 311 Opinion of the Court. Stipcich, after applying for the insurance and before the delivery of the policy and payment of the first premium, had suffered a recurrence of a duodenal ulcer, which later caused his death, and that he failed to reveal this information to the company. It was shown on the trial by uncontradicted evidence that after his application Stipcich consulted two physicians and that they told him that an operation for the removal of the ulcer was necessary. Plaintiff then made tender of evidence to the effect that Stipcich had communicated this information to Coblentz, the defendant’s agent who had solicited the policy, and that the visit to the. second doctor was made at Coblentz’ request to confirm the diagnosis of the first. The proffered evidence was excluded and, at the close of the whole case and over plaintiff’s objection, the court directed a verdict for the defendant, stating that it did so because Stipcich was under a duty to inform the defendant of his knowledge of the serious ailment of which he had learned after making application for insurance; and that he had failed in that duty since his communication of the facts to Coblentz did not amount to notice of them to the insurance company. The case was taken on writ of error to the court of appeals for the ninth circuit. That court certified to this, certain questions of law presented by the case. Jud. Code, § 239. Without answering, we ordered the entire record to be sent up and the case is here as though on writ of error. An insurer may of course assume the risk of such changes in the insured’s health as may occur between the date of application and the date of the issuance of a policy. Where the parties contract exclusively on the basis of conditions as they existed at the date of the application, the failure of the insured to divulge any later known changes in health may well not affect the policy. Insurance Co. n. Higginbotham, 95 U. S. 380; see New York 316 OCTOBER TERM, 1927. Opinion of the Court. 277 U. 8. Life Insurance Co. N. Moats, 207 Fed. 481; Grier n. Insurance Co., 132 N. C. 542; compare Gardner n. North State Mutual Life Insurance Co., 163 N. C. 367. But there is no contention here that the parties contracted exclusively on the basis of conditions at the time of the application. Here both by the terms of the application and familiar rules governing the formation of contracts no contract came into existence until the delivery of the policy, and at that time the insured had learned of conditions gravely affecting his health, unknown at the time of making his application. Insurance policies are traditionally contracts uberrimae fidei and a failure by the insured to disclose conditions affecting the risk, of which he is aware, makes the contract voidable at the insurer’s option. Carter v. Boehm, 3 Burrows, 1905; Livingston n. Maryland Insurance Co., 6 Cranch, 274; McLanahan v. Universal Insurance Co., 1 Pet. 170; Phoenix Life Insurance Co. v. Raddin, 120 U. S. 183, 189; Hardman v. Firemen’s Insurance Co., 20 Fed. 594. Concededly, the modern practice of requiring the applicant for life insurance to answer questions prepared by the insurer has relaxed this rule to some extent, since information not asked for is presumably deemed immaterial. Penn Mutual Life Insurance Co. v. Mechanics’ Savings Bank & Trust Co., 72 Fed. 413, 435-441. See Clark v. Manufacturer’s Insurance Co., 8 How. 235, 248-249; compare Phoenix Life Insurance Co. v. Raddin, 120 U. S. 183, 190. But the reason for the rule still obtains, and with added force, as to changes materially affecting the risk which come to the knowledge of the insured after the application and before delivery of the policy. For, even the most unsophisticated person must know that in answering the questionnaire and submitting it to the insurer he is furnishing the data on the basis of which the com- STIPCICH v. INSURANCE CO. 317 311 Opinion of the Court. pany will decide whether, by issuing a policy, it wishes to insure him. If, while the company deliberates, he discovers facts which make portions of his application no longer true, the most elementary spirit of fair dealing would seem to require him to make a full disclosure.1 If he fails to do so the company may, despite its acceptance of the application, decline to issue a policy, Canning v. Farquhar, 16 Q. B. D. 727; McKenzie n. Northwestern Mutual Life Insurance Co., 26 Ga. App. 225, or if a policy has been issued, it has a valid defense to a suit upon it. Equitable Life Assurance Society n. McElroy, 83 Fed. 631, 636, 637. Compare Traill n. Baring, 4 DeG. J. & S. 318; Allis-Chalmers Co. v. Fidelity A Deposit Co. of 1 The rule that changes in conditions material to the risk which occur between the opening of negotiations for insurance and the issu- ance of a policy must be divulged became first established in early British marine insurance. Grieve n. Young, (Ct. of Session, 1782) Millar, Elements of the Law Relating to Insurances, p. 65; Fitzherbert v. Mather, 1 T. R. 12. Its adoption here followed as cases presenting the question arose. McLanahan v. Universal Insurance Co., 1 Pet. 170; Watson v. Delafield, 2 Caines (N. Y.) 224; s. c., 1 Johns. (N. Y.) 149; s. c., 2 Johns. (N. Y.) 526; Andrews x. Marine Insurance Co., 9 Johns. (N. Y.) 32; Green x. Merchants’ Insurance Co., 10 Pick. (Mass.) 402; Neptune Insurance Co. v. Robinson, 11 Gill & J. (Md.) 256; Snow v. Mercantile Mutual Insurance Co., 61 N. Y. 160. When written applications began to be used by life insurance companies the rule was invoked as. to occurrences after an application had been submitted. Whitley v. Piedmont & Arlington Life Insurance Co., 71 N. C. 480; Thompson v. Travelers Insurance Co., 13 N. Dak. 444, 453; Cable v. United States Life Insurance Co., Ill Fed. 19; Equitable Life Assurance Society v. McElroy, 83 Fed. 631; but see Merriman v. Grand Lodge Degree of Honor, 77 Neb. 544; Ames v. New York Life Insurance Co., 154 Minn. 111. The result is often explained by saying that a statement in the application is a “ continuing representation,” or “ is made as of the time of the delivery of the policy.” Re Arbitration between Marshall & Scottish Employers’ Liability and General Insurance Co., Ltd., 85 L. T. 757; Canning v. Farquhar, supra; Blumer v. Phoenix Insurance Co., 45 Wis. 622; Equitable Life Assurance Society v. McElroy, supra; Cable v. United States Life Insurance Society, supra. 318 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. Maryland, 114 L. T. 433; compare Piedmont and Arlington Life Insurance Co. v. Ewing, 92 U. S. 377. This generally recognized rule, in the absence of authoritative local decision, we take to be the law of Oregon. Its application here is not affected by Oregon Laws, § 6426(1) c, which provides that the policy shall set forth the entire contract between the parties. The defendant in insisting that Stipcich was under an obligation to disclose his discovery to it is not attempting to add another term to the contract. The obligation was not one stipulated for by the parties, but is one imposed by law as a result of the relationship assumed by them and because of the peculiar character of the insurance contract. The necessity for complying with it is not dispensed with by the failure of the insurer to stipulate in the policy for such disclosure. The evidence proffered and rejected tended to show that the insured, in good faith, made the required disclosure to Coblentz who, for some purposes, admittedly represented the defendant. If he represented it for this purpose the evidence should have been received. Coblentz was the licensed agent of respondent under Oregon Laws § 6425 which provides that every life insurance company doing business in the state 11 shall give written notice to the insurance commissioner of the name and residence of, and obtain from him a license for every person appointed by it to act as its agent within this state, which license shall state, in substance, that the company is authorized to do business in this state and that the person named therein is constituted an agent of the company for the transaction of business in this state. . . . ” The insured knew no other agent of defendant and dealt with Coblentz alone. So far as appears, no other person or agency was designated under the statute or held out by the defendant as representing it in connection with STIPCICH v. INSURANCE CO. 319 311 Opinion of the Court. Stipcich’s application for insurance or the delivery of the policy or as the appropriate person or agency to receive information concerning either of them. The insured delivered the application to Coblentz and later paid to him the first premium, receiving in return the policy and a receipt executed by Coblentz in defendant’s name. In communicating to him the information as to his changed condition of health Stipcich acted only in what must have appeared to him the most natural and obvious way to supplement the information already given in his written application. Defendant relies on the established rule, here expressed in part at least in the printed clause of the application, incorporated in the policy and printed in the margin,2 that the authority of a soliciting agent to receive the application and transmit it to the company and to deliver the policy when issued, does not include power to vary the terms of the contract, to waive conditions or to receive information sought by questions in the application other than that embodied in it. But Coblentz, when the insured communicated the information to him, did not purport to vary any term or waive any condition of the proposed insurance contract; he did not acquiesce in a variation of the application ; nor in connection with the preparation of the written application did he receive any information not written into it. The insured merely communicated information, supplementing the application, to the designated agent of the company for the transaction of business in the state, as the most natural and appropriate channel of communication to the company. 2 “ 2. That no agent, medical examiner, or any other person except the Officers at the Home Office of the Company, have power on behalf of the Company; (a) to make, modify or discharge any contract of insurance, (b) to bind the Company by making any promises respecting any benefits under any policy issued hereunder.” 320 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. In insisting that it was entitled to information of the insured’s change of health after the application, but that such information could not be effectively communicated to its agent to receive the application and transact business with insured preliminary to the acceptance of the risk, defendant is not aided by the stipulations of the policy and any doubts as to the agent’s implied authority to receive it must be resolved in the light of the Oregon statutes. Oregon Laws § 6435 reads as follows: “Any person who shall solicit and procure an application for life insurance shall, in all matters relating to such application for insurance and the policy issued in consequence thereof, be regarded as the agent of the company issuing the policy and not the agent of the insured, and all provisions in the application and policy to the contrary are void and of no effect whatever.” Provisions of this character are controlling when inconsistent with the terms of a policy issued after their enactment. National Union Fire Insurance Co. v. Wanberg, 260 U. S. 71; Continental Life Insurance Co. v. Chamber-lain, 132 U. S. 304; Whitfield v. Aetna Life Insurance Co., 205 U. S. 489. Here the statute does more than provide that the soliciting agent in matters relating to the application and policy does not represent the insured. In connection with those matters it makes him the agent of the company, a phrase which would be meaningless unless the statute when applied to the facts of the case indicated in what respects he represented the company. Here the statute in terms defines the scope of his agency to the extent that he is stated to represent the company “ in all matters relating to the application and the policy issued in consequence ” of it. We need not inquire what are the outer limits of that authority, but we think this language plainly makes him the representative of the company in connection with all those matters which, in the usual STIPCICH v. INSURANCE CO. 321 311 Opinion of the Court. course of effecting insurance, are incidental to the application and the delivery of the policy. Within the requirements of the statute the company may provide by stipulations in the application or other appropriate notice for a suitable method of giving the information, by writing, in a supplemental application or otherwise, or may stipulate, as is not unusual, that the insurance shall not attach on delivery of the policy unless the insured is in good health. To say that under this statute the company’s agent to solicit and receive the application and deliver the policy is not its agent also to receive disclosures which supplement the application and which vitally affect the validity of the insurance if not disclosed, is to disregard its language and ignore the obvious purpose of such legislation to require the company to provide some agency within the state with which the insured may safely deal in matters relating to his application. See Continental Life Insurance Co. v. Chamberlain, supra. Much reliance is placed by respondent on Mutual Life Insurance Co. v. Hilton-Green, 241 U. S. 613, where a somewhat similar statute was involved. But there answers known by the insured and the agent to be false were written into the signed application by the agent. Such fraudulent representations known and participated in by the insured obviously could not have estopped the company, but there is nothing in the present case to suggest that the insured was a party to or intended any concealment from the company. The defendant also argues that it is not affected by the disclosures to the agent because the application provided: “ That any statement made to or by, or any knowledge on the part of, any agent, medical examiner or any other person as to any facts pertaining to the Applicant shall not be considered as having been made to or brought to the 5963°—29------21 322 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. knowledge of the Company unless stated in either part A or B of this application.” But when Stipcich learned of his condition and told Coblentz about it, neither of them had possession of the application. That had been filled out and sent to the home office of respondent in New York, and disclosure “ in either part A or B of this application ” of a fact which did not occur until after the application was completed was obviously impossible. It is said that compliance with this provision, even though impossible, was a condition precedent to the securing of insurance. But narrow and unreasonable interpretations of clauses in an insurance policy are not favored. They are prepared by the insurer and if, with equal reason, open to two constructions, that most favorable to the insured will be adopted. Mutual Insurance Co. v. Hurni Co., 263 U. S. 167, 174; Thompson v. Phoenix Insurance Co., 136 U. S. 287; American Surety Co. v. Pauly, 170 U. S. 133, 144. The clause must therefore be taken to apply to information given or available when the application was prepared and as inapplicable to knowledge affecting the risk which insured acquired and communicated after the application was signed and delivered to the company’s agent. The only questions certified by the court of appeals, and the only questions pressed upon us here involve the correctness of the rulings of the trial court to which we have alluded. But the respondent’s answer sets up that certain answers given in the written application as to the insured’s recovery from his earlier illness, its recurrence, and with respect to consultation of physicians, were false and known by him to be false when he signed the application. It is now suggested that Stipcich in his application made a positive misrepresentation regarding a visit to a physician the day before he applied for insurance. If that were clearly established we would consider it neces- THE MALCOLM BAXTER, JR. 323 311 Syllabus. sary to affirm the judgment below, although we think the rulings on which it was based erroneous. But the particular questions and portions of the record relied on, in the light of the medical testimony, are not free from ambiguity. The point is not elaborated in the briefs of either party and was not pressed upon us on the argument. At no time in the entire course of the litigation does the effect of the answers appear to have received any consideration independently of the supposed failure to make sufficient disclosure to the company of knowledge acquired by the insured after the application. Nor, in the absence of the testimony as to the disclosure made to Coblentz,- are we able to say what its bearing may be on the alleged misstatements in the application. Under such circumstances we must decline to pass upon this defense. Compare Southeastern Express Co. v. Robertson, 264 U. S. 541; Ewing v. Howard, 7 Wall. 499, 503. The truthfulness of the answers and their effect will be open for consideration on the new trial. Reversed. THE MALCOLM BAXTER, Jr. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 459. Argued April 16, 1928.—Decided May 21, 1928. A schooner bound with cargo from New Orleans to Bordeaux developed leaks, because of unseaworthiness existing when she broke ground, and was forced to take refuge in Havana for repairs. Before the repairs were completed, an embargo was put into effect by the United States. Prevented by this from continuing to Bordeaux, she proceeded to New York and was there libeled by the cargo-owners. The unseaworthiness was unknown to her owner or master when the voyage began, but could have been discovered by due diligence. Held: 324 OCTOBER TERM, 1927. Argument for Petitioners. 277 U. S. 1. That recovery was rightly limited to actual damage to the cargo due to unseaworthiness, and to the difference between the value of the cargo at Bordeaux had it arrived there on the contract voyage and its value on arrival had the vessel proceeded there from Havana when she was repaired and ready for sea. Pp. 330, 333. 2. Clauses in the bill of lading entitling the ship-owner to retain the prepaid freight in case of forced interruption or abandonment of the voyage, and exempting the vessel from liability for “ restraint of princes,” etc., were not displaced by the departure; so that the freight and the damage due to the embargo were not recoverable by the cargo-owners. P. 333. 3. The rule that a voluntary deviation from the prescribed voyage displaces the contract of affreightment is not to be extended to deviation to avoid perils of the sea, even in a case where the deviation would not have been necessary if the owner had used reasonable diligence to start the voyage with a seaworthy vessel. P. 332. 4. In the absence of any showing that the embargo could reasonably have been foreseen by the ship-owner, or of special circumstances charging the ship-owner with the knowledge or expectation that the unseaworthiness, or consequent delay, would bring the vessel within its operation, the damage resulting from it to cargoowners is not attributable to the negligence of the ship-owner, but to the embargo itself. P. 333. 5. The ship-owner having brought itself within the exception of the bill of lading, the burden was on the cargo-owners to show that the negligence was the cause of Or contributed to the loss. P. 334. 20 F. (2d) 304, affirmed. Certiorari, 275 U. S. 517, to a decree of the Circuit Court of Appeals, reversing a decree awarding damages in a suit begun by libel against the schooner above named. The present respondent petitioned for exoneration and limitation of liability.* Messrs. John M. Woolsey and Mark W. Maclay, with whom Messrs. Robert S. Erskine, Charles K. Carpenter, and John Tilney Carpenter were on the brief, for petitioners. * The docket title of the case in this Court was Republic of France et al. v. French Overseas Corporation, as owner, etc. THE MALCOLM BAXTER, JR. 325 323 Argument for Petitioners. The law as to deviation is important in this case, because the schooner Malcolm Baxter, Jr., and her owner, if guilty of a deviation would be unable to rely on any clauses in the bill of lading or on any defense based on impossibility or frustration, but would be responsible to the cargo as an insurer for all the damages flowing from her failure to arrive at destination. The Willdomino, 272 U. S. 718; St. Johns N. F. Shipping Corp’n v. S. A. Companhia etc., 263 U. S. 119; Mobile etc. R. R. Co. v. Jurey, 111 U. S. 584; Lawrence v. Minturn, 17 How. Ill; The Sarnia, 278 Fed. 459; Gibaud v. Great Eastern Ry. Co., 2 K. B. 426; Thorley v. Orchis S. S. Co., 1 K. B. 660. The owner’s warranty of seaworthiness and its obligation to furnish a vessel ready and able to perform the voyage are absolute and of the very essence of every contract of affreightment. The Tornado, 108 U. S. 342; The Edwin I. Morrison, 153 U. S. 199; The Willdomino, 272 U. S. 718. Reckless indifference to the condition of the vessel is tantamount to actual knowledge. Simmons Creek Coal Co. v. Doran, 142 U. S. 417; Fidelity & Deposit Co. N. Queens County Trust Co., 226 N. Y. 225. The line of cleavage between justifiable and unjustifiable deviation of an unseaworthy ship depends on whether the deviation is caused by unseaworthiness within the privity and knowledge of her owner, or is due to unseaworthiness which was not within his privity or knowledge. Kish v. Taylor, [1912] A. C. 604; The Turret Crown, 284 Fed. 439, certiorari denied, 264 U. S. 591; The Willdomino, 272 U. S. 718; St. Johns N. F. Shipping Corp’n v. Companhia etc., 263 U. S. 119; The Henry W. Cramp, 20 F. (2d) 321, certiorari denied, sub nomine McDonald v. Rosasco, 275 U. S. 561; The Maine, 8 F. (2d) 291; Cf. The St. Paul, 277 Fed. 99; U. S. S. B. v. Bunge y Born, Ltd., [1925] H. L., 31 Com. Cas. 118. 326 OCTOBER TERM, 1927. Argument for Petitioners. 277 U. S. A “ deviation ” is an unjustifiable failure of a shipowner to perform the contracted voyage, and may arise not only from a physical departure from the course of a voyage, but also from other causes, such as unreasonable delay, Kemsley, Millbourn & Co. N. United States 19 F. (2d) 441, The Citta di Messina, 169 Fed. 472; or from the failure of a shipowner to furnish a vessel capable of performing. The St. Paul, 277 Fed. 99; St. Johns N. F. Shipping Corp’n v. Companhia etc., supra; The Willdomino, 272 U. S. 718; Columbian Ins. Co. v. Catlett, 12 Wheat, 383; Hostetter n. Park, 137 U. S. 30; Audenreid v. Mercantile Mut. Ins. Co., 60 N. Y. 482; Mount v. Larkins, 8 Bing. 108; The Indrapura, 171 Fed. 929. In The Henry W. Cramp, 20 F. (2d) 320, the court reached an exactly opposite conclusion from the decision below in the case at bar. The 11 Restraint of Princes ” clause in the bill of lading does not constitute a defense, because the shipowner’s negligence in knowingly sending the ship to sea in an unseaworthy condition brought her within the operation of the restraint invoked as a defense. Exceptions in a bill of lading of a common carrier do not exempt it from liability, if it appears that the damage, although prima facie due to an excepted cause, was occasioned by the culpable negligence of the carrier. Clark v. Barnwell, 12 How. 272; Transportation Co. v. Downer, 11 Wall. 129; Herman v. Compagnie Generale Transatlantique, 242 Fed. 859; The Glenfruin, 10 P. D. 108; The Caledonia, 157 U. S. 124; Atlantic Shipping Co. v. Dreyfus & Co., [1922] 2 A. C. 250; Tattersall v. The Nat’l Steamship Co., 12 Q. B. D. 297. The breach of warranty of seaworthiness was the effective and continuing cause of frustration, to which the embargo was only incidental. United States v. Hall, 6 Cranch 171; Bailiffs v. Trinity House, L. R. 5 Exch. 204; THE MALCOLM BAXTER, JR. 327 323 Argument for Petitioners. Davis v. Garrett, 6 Bing. 716; Williams v. Vanderbilt, 28 N. Y. 217; Green-Wheeler Shoe Co. v. Chicago, R. I. & P. R. R. Co., 130 la. 123; Michaels v. N. Y. Central R. R. Co., 30 N. Y. 564; Condict v. Grand Trunk R. R. Co., 54 N. Y. 500; Railway Co. v. Kelly, 91 Tenn. 699; Stevens v. B. & M. R. R. Co., 1 Gray 277; Central Trust Co. v. E. Tenn. R. R. Co., 70 Fed. 764; Constable v. Nat’l S. S. Co., 154 U. S. 51; The Caledonia, 157 U. S. 124; Allanwilde Transport Corp’n v. Vacuum Oil Co., 248 U. S. 377. The rule that a shipowner may not defend under a bill of lading exception of “ restraint of princes ” if the shipowner’s own fault or negligence has in fact brought the “ restraint ” into operation, is well illustrated by the case of Dunn v. Donald Currie & Co., 8 Com. Cas. 33 (1902). See The Henry W. Cramp, 20 F. (2d) 320; Varagnolo v. Partola Mfg. Co., 209 App. Div. 347, affirmed 239 N. Y. 621. The defense of impossibility of performance involves historically and, indeed, necessarily an equitable doctrine, and it can properly be invoked only when it would be unjust for the plaintiff to recover damages for the defendant’s failure to perform his contract. The failure of plaintiff to perform an essential covenant or condition of his contract, precludes him from securing equitable relief, to which otherwise he might have been entitled. Kelsey v. Crowther, 162 U. S. 404; Marble Co. v. Ripley, 10 Wall. 339; Willard n. Tayloe, 8 Wall. 557; Hansbrough v. Peck, 5 Wall. 497; Montana Water Co. v. City of Billings, 214 Fed. 121; Shubert v. Woodward, 167 Fed. 47; Taussig v. Corbin, 142 Fed. 660; Ohio Steel Fence Co. v. Washburn Mfg. Co., 26 Fed. 702; Smith v. Spencer, 81 N- J. Eq. 389; HI Williston, Contracts, §§ 1959, 3329; Allanwilde Transport Corp’n v. Vacuum Oil Co., 248 U. S. 377; Texas Co. v. Hogarth Shipping Co., 256 U. S. 619; Chicago, M. & St. P. Ry. v. Hoyt, 149 U. S. 1; 328 OCTOBER TERM, 1927. Argument for Respondent. 277 U. S. Varagnolo v. Partola Mfg. Co., 209 App. Div. 347, affirmed, 239 N. Y. 621; The Henry W. Cramp, 20 F. (2d) 320; The Harriman, 9 Wall. 161. Mr. T. Catesby Jones, with whom Messrs. D. Roger Englar and James W. Ryan were on the brief, for respondent. The breach of a warranty of seaworthiness does not preclude putting into a port of refuge for repairs if in the judgment of the master the safety or best interest of crew, ship or cargo requires it. Kish v. Taylor, [1912] A. C. 604; The Turret Crown, 297 Fed. 766; Thessaloniki, 267 Fed. 67; Atlantic Shipping Co. v. Dreyfus & Co., [1922] A. C. 250. The waiting at Havana after September 28, 1917, when further performance became illegal, did not constitute a deviation, because it was proper to wait a reasonable time for the sailing vessel prohibition order to be lifted, and because, even if the repairs had been completed earlier, it was illegal after September 28, 1917, for the vessel to continue the voyage. Illegality ended the contract on September 28, 1917. Church v. Proctor, 66 Fed. 240; Maclachlan, Law of Merchant Shipping, 6th ed., p. 445; Rdlli v. Compania Naviera Sota, [1920] 2 K. B. 287; Carver, Carriage of Goods by Sea, 7th ed., § 237, pp. 343, 344; Clark, Contracts, p. 346; III Williston, Contracts, § 1759, p. 3066; Id., § 1938, p. 3292; Baily v. De Cres-pigny, L. R. 4 Q. B. 180; Heslop v. Jones, 2 Chit. 550; The Claveresk, 264 Fed. 276; Allanwilde Corp’n v. Vacuum Oil Co., 248 U. S. 377. The petitioners’ second point with reference to a contract clause of restraint of princes conditioned on the exercise of due diligence and their third point with reference to a defense of impossibility of performance or equitable frustration, also conditioned on due diligence, are both irrelevant because the defense here is illegality. THE MALCOLM BAXTER, JR. 329 323 Opinion of the Court. The leaks constituting unseaworthiness did not cause the illegality. The contention is untenable that because unseaworthiness may have caused the 9% sea-water damage which was found on arrival at New York after the schooner had carried the cargo 2,000 miles, it was therefore the cause of the almost 100% loss of market and steamer transshipment damages resulting from the ending of the contract at Havana because of illegality. St. Louis Ry. Co. n. Commercial Ins. Co., 139 U. S. 223; 22 R. C. L; Atchison Ry. Co. v. Calhoun, 213 U. S. 1; The Santa Rita, 173 Fed. 413; II Williston, Contracts, § 1906, pp. 2040-2043; Burdick, Law of Torts, 4th ed., pp. 38, 39; Milwaukee etc., R. R. Co. v. Kellogg, 94 U. S. 469; 33 Yale Law Jour. 690; Parry v. University Co., 219 N. Y. 60; Engle v. Director General, 78 Ind. App. 537. Mr. Justice Stone delivered the opinion of the Court. Petitioners, in July, 1917, shipped a cargo on the Schooner Malcolm Baxter, Jr., owned by respondent, from New Orleans to Bordeaux, and prepaid the freight. The bill of lading stipulated “ prepaid freight is to be considered as earned on shipment of goods and is to be retained by vessel’s owner ... if there be forced interruption or abandonment of the voyage, at a port of distress or elsewhere.” In addition there was the usual clause exempting the vessel from “restraints of princes, rulers and peoples.” After departure from New Orleans the Baxter developed leaks due to unseaworthiness which caused her to put in at Key West, where she was surveyed. In order to effect the necessary repairs she was towed to Havana where she was unladen and repaired, remaining there for that purpose until January 14, 1918. Before the completion of the repairs the United States Export Administrative Board put into effect its ruling of Septem 330 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. ber 28, 1917, that sailing vessels would not be permitted to clear for points beyond the war zone. This ruling remained in force when the- repairs were completed, and the Baxter, being unable to secure a clearance for Bordeaux, took her cargo on board and proceeded to New York, where the petitioners libelled the vessel in the district court for southern New York to recover freight money, damages to cargo and damages for failure to perform the contract voyage from New Orleans to Bordeaux. Respondent as owner filed a petition for exoneration and limitation of liability and enjoined further proceedings on the libels. Petitioners filed claims in the limitation proceedings, claiming damages as in the original libels, setting up the deviation and the abandonment of the voyage, by reason of the ship’s unseaworthiness on sailing. The district court denied the petition to limit liability, allowed the claim for freight money and for damages sustained by petitioners, including damage to cargo. A special master, appointed to take proof of damage, found that the measure of damages was the excess cost of the substituted carriage and incidental expenses, and in the case of goods which could not be sent forward the damage was measured by the difference between the value of the goods at the time when and in the condition in which they should have arrived at destination, and their value at the place where and in the condition in which they actually were received, less charges saved plus incidental expenses. Final decree was given to the petitioners for the damage as found. The court of appeals for the second circuit upheld the ruling of the district court denying exoneration and limitation of liability but reversed the judgment, holding there could be no recovery of the prepaid freight or excess cost of transportation over prepaid freight; that the recovery of damages must be limited to actual damages to THE MALCOLM BAXTER, JR. 331 323 Opinion of the Court. cargo resulting from unseaworthiness, and the difference between the value of the cargo had it arrived in Bordeaux on a straight voyage on August 16, 1917, the date when the Baxter sailed, and on a voyage leaving Havana January 14,1918, the date when the repairs were completed and the Baxter was ready for sea. The Malcolm Baxter, Jr., 20 F. (2d) 304. Both courts below agreed that the Baxter was unsea-worthy on sailing and that respondent failed to exercise due diligence to ascertain her condition before sailing. This was sufficient ground for denying the petition for exoneration and limitation of liability under the Harter Act, Act of February 13,1893, c. 105, 27 Stat. 445, and acts permitting limitation of liability to the vessel and pending freight. R. S. §§ 4282-4289. The correctness of this determination is not raised on the petition here, Federal Trade Commission v. Pacific Paper Ass’n, 273 U. S. 52, 66, but petitioners urge that the Baxter’s putting in first at Key West and later at Havana must be deemed a voluntary deviation because due to the negligence of the owner in failing to discover the unseaworthiness and to make the vessel seaworthy before sailing. Unseaworthiness alone or deviation caused by it displaces the contract of affreightment only in so far as damage is caused by the unseaworthiness. The Caledonia, 157 U. S. 124; The Europa, [1908], P. 84. Thorley v. Orchis S. S. Co., Ltd., [1907], 1 K. B. 660; Kish v. Taylor, [1912], A. C. 604, 618. But if the deviation here is to be classed with voluntary deviations, respondent may not claim the benefit of the clauses of the bill of lading and is responsible for the cargo as insurer. The Willdomino, 272 U. S. 718; St. Johns Corp. v. Companhia Geral. etc., 263 U. S. 119; Mobile cfe Montgomery Ry. v. Jurey, 111 U. S. 584; Lawrence v. Minturn, 17 How. 100; and see The Indrapura, 171 Fed. 929. In any case it is contended that respondent’s negligent failure to discover the unsea 332 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. worthiness of the vessel resulted in the delay which brought her within the operation of the embargo, and that the shipowners are for that reason liable for damages for all the delay, including that immediately resulting from the embargo. Respondents had purchased the vessel about one month before she sailed. At that time she was unseaworthy, due to a ‘ hog ’ or camber in her keel, a structural weakness dangerous to the ship in heavy weather, which later caused the leak and made necessary the repairs at Havana. Following the purchase and before sailing from New Orleans a survey was made by the owner, which appears not to have disclosed her condition, but both courts below agree that the fact of her unseaworthiness could have been discovered by due diligence. The evidence supports the finding of the court of appeals that the master of the Baxter “ did not leave New Orleans with knowledge that he would have to make port for repairs, and honestly thought he could make the trip in safety and tried unsuccessfully to do so.” The case is therefore not one where the master set sail with the knowledge that the deviation from the voyage, as described in the bill of lading, would ensue, and with the purpose and intent to deviate as in The Willdomino, supra. There the officers of the vessel, under direction of the owner, sailed from Ponta Delgada, bound for New York, all knowing that the supply of fuel was insufficient for the voyage and intending to take the vessel to North Sidney, and we held that the deviation under the circumstances was voluntary and inexcusable. But here the deviation was not voluntary and the point to be determined is whether a like effect is to be given to a deviation to avoid perils of the sea, where the deviation would not have been necessary if the owner had used reasonable diligence to start the voyage with a seaworthy vessel. No sufficient reason is suggested to us for thus extending the rule, nor do we perceive any. Petitioners, without THE MALCOLM BAXTER, JR. 333 323 Opinion of the Court. resort to it, are entitled to recover all damages caused by the unseaworthiness. The basis of the privilege of deviation to avoid perils of the sea, is humanitarian. See Carver, Carriage by Sea, (7th ed.) §§ 291, 292. To hold that the master whose ship is in a perilous position must choose between the hazard of continuing the voyage and gaining safety only by forfeiting the contract of affreightment would be a departure from that principle for no purpose except to give the shipper an added and unnecessary protection. “ It is the presence of the peril and not its cause” which justifies the deviation. See Strang v. Scott, 14 App. Cas. 801. This is the conclusion reached in other circuits. The Turret Crown, 297 Fed. 766; The Turret Crown, 284 Fed. 439, 445; The Turret Crown, 282 Fed. 354, 360; see The Thessaloniki, 267 Fed. 67; and by the House of Lords in Kish v. Taylor, supra, holding that a deviation caused by unseaworthiness due to improper and negligent loading of the ship by the master did not displace the bill of lading. This rule we adopt as most consonant with the reason and consequences of the rule that a voluntary deviation displaces the contract of affreightment. It follows that the clauses of the bill of lading remain effective and that petitioners may not recover the freight money. Allanwilde Corp. v. Vacuum Oil Co., 248 U. S. 377. But for all damages legally attributable to the breach of warranty of seaworthiness petitioners may recover. The Caledonia, supra. For the delay caused by the embargo alone petitioners may not recover, both because it was within the exception of the bill of lading and because, while it continued, performance of the contract of affreightment would have been illegal. See Allanwilde Corp. v. Vacuum Oil Co., supra, 385; Carver, Carriage by Sea, (7th ed.), §§ 237, 238, 343, 344. It was the embargo and not the unseaworthiness of the vessel which delayed the voyage after the Baxter was repaired and ready for sea on January 14, 1918, and the unseaworthiness of the vessel did not cause the embargo. 334 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. But it is urged that it is enough to sustain the recovery for the failure to complete the voyage that it was the unseaworthiness, for which respondent was responsible, that brought the vessel within the excepted peril. This view, although not without support, Green-Wheeler Shoe Co. v. Chicago, Rock Island, & Pac. R. R., 130 Iowa 123; Michaels v. New York Central R. R., 30 N. Y. 564; Condict v. Grand Trunk Ry., 54 N. Y. 500, does not generally prevail. See 2 Williston, Contracts, § 1906, and cases cited. It was rejected by this Court in Railroad Co. v. Reeves, 10 Wall. 176. There negligent delay in the transportation of goods by the carrier brought them within the path of a flood, which caused their destruction. The court held that the flood and not the negligent delay was the proximate cause of the damage and that the rule causa proximo non remota spectatur applied to contracts of common carriers as to others. There has been no departure from this rule and we see no reason for departing from it now. See Milwaukee & St. Paul Ry. v. Kellogg, 94 U. S. 469; Atchison, Topeka & Santa Fe Ry. v. Calhoun, 213 U. S. 1; The Indrapura, supra; The Lusitania, 251 Fed. 715, 732; The Turret Crown, 282 Fed. 354, 360. There is no finding, nor is it suggested, that at the time when the contract of affreightment was entered into, or when the vessel broke ground, the embargo could reasonably have been foreseen, or that there were any special circumstances charging petitioners with the knowledge or expectation that the unseaworthiness or consequent delay would bring the vessel within its operation. The respondent having brought itself within the exception under its bill of lading, the burden is on petitioners to show that respondent’s negligence was the cause of or contributed to the loss. Railroad Company v. Reeves, supra, 190; Transportation Co. n. Downer, 11 Wall. 129; see Southern Ry. n. Prescott, 240 U. S. 632, 641; Kohlsaat v. Parkersburg <& Marietta Sand Co., 266 Fed. 283, 285. Affirmed. MELLON v. GOODYEAR. 335 Argument for Petitioners. MELLON, DIRECTOR GENERAL, v. GOODYEAR, ADMINISTRATOR. CERTIORARI TO THE SUPREME COURT OF KANSAS. No. 131. Argued December 8, 1927.—Decided May 28, 1928. 1. Under the Federal Employers’ Liability Act, a full settlement and release, executed advisedly and in good faith between a railroad carrier and an injured employee, discharges not only the claim of the employee for personal loss and suffering resulting from the injury while he lived, but also the claim of his dependants for pecuniary damages resulting from his ensuing death. P. 339. 2. Insofar as it gives an action for the benefit of dependants the statute is essentially identical with Lord Campbell’s Act. Under both the remedy of the dependants is conditioned on the existence in the decedent at the time of his death of a right to recover for the injury. P. 344. 121 Kan. 392, reversed. Certiorari, 273 U. S. 684, to a judgment of the Supreme Court of Kansas, affirming a judgment recovered by the administrator of a deceased employee in an action under the Federal Employers’ Liability Act. See also 114 Kan. 557; 115 Id. 20. Mr. Luther Burns, with whom Messrs. M. L. Bell, W. F. Dickinson, T. P. Littlepage, J. E. DuMars, W. D. Vance, and Sidney F. Andrews were on the brief, for petitioner. Under the Federal Employers’ Liability Act, settlement and release of all claims for personal injuries made in good faith by an injured employee, who subsequently dies as a result of the injury, constitute a bar to an action by a personal representative for the benefit of dependants for the death. Michigan Central R. R. Co. v. Vreeland, 227 U. S. 59; Hecht v. 0. & M. Ry., 132 Ind. 507; Littlewood v. Mayor, 89 N. Y. 24; Southern Bell Tel. Co. v. Cassin, 111 Ga. 575; Edwards V. Chemical Co., 170 N. C. 336 OCTOBER TERM, 1927. Opinion of the Court. 277U.S. 551; Louisville R. R. Co. v. Raymond’s Admr., 135 Ky. 738; Perry’s Admr. n. L. & N. R. R. Co., 199 Ky. 396; State v. United Rys., 121 Md. 457; Bruns v. Welte, 126 Ill. App. 541; Strode v. Transit Co., 197 Mo. 616; Sewell v. Ry. Co., 78 Kan. 1; Hill v. Penn. Ry. Co., 178 Pa. 223; Read v. Gt. Eastern R. Co., L. R. 3 Q. B. 555; Goodyear v. Ry. Co., 114 Kan. 557; Berner v. Merc. Co., 93 Kan. 769; Giersch v. A. T. & S. F. R. Co., 98 Kan. 452; Fuller v. A. T. & S. F. R. Co., 124 Kan. 66; Frese v. C. B. & Q. R. Co., 263 U. S. 1; American R. R. Co. v. Didrick-sen, 227 U. S. 145; Western Union n. Preston, 254 Fed. 229; St. Louis, etc., R. R. Co. v. Craft, 237 U. S. 648; 17 C. J., 1250. Messrs. Edwin C. Brandenburg and John F. McClure, with whom Mr. Nelson J. Ward was on the brief, submitted for respondent. Mr. Justice McReynolds delivered the opinion of the Court. While employed in interstate commerce by the Director General of Railroads at Belleville, Kansas, July 31, 1919, Lewis Goodyear sustained serious personal injuries for which he claimed the right to recover damages under the Federal Employers’ Liability Act (35 Stat. 65, c. 149; 36 Stat. 291). On March 16, 1920, he settled with the employer, accepted the agreed sum, and executed a general release, which, among other things, recites— “ I do hereby compromise said claim and do respectively release and forever discharge said Director General of Railroads, operating Chicago, Rock Island & Pacific Railroad, and his successor or successors as such, the United States of America, The Chicago, Rock Island & Pacific Railway Company, the owner of said Railroad, and all railway companies whose lines are leased to said Railway Company or have been operated by it but are now oper- MELLON v. GOODYEAR. 337 335 Opinion of the Court. ated by said Director General, and their respective agents and employes, from any and all liability for all claims and demands for all damages resulting from the injuries received by me at the time and place above stated, including such injuries as may hereafter develop as well as those now apparent, and also do release and discharge them, and each of them, of all suits, actions, causes of action and claims for damages on account of injuries to my person, as well as damages to my property, if any, which I have or might have arising from, growing out of, or in anywise connected with the accident above referred to, and do hereby acknowledge full satisfaction of all such liability and causes of action. . . . “ It is further expressly understood and agreed that this release shall be deemed to be and shall be a complete bar to any action which might otherwise be brought, either by law, or under any state or federal workmen’s compensation act, employers’ liability act, labor law, or any other statute, for the recovery of compensation or damages on account of said injuries (or of resulting death, if this be executed by an administrator or administratrix of the estate of said person), for the benefit of any person whomsoever or estate whatsoever.” May 4, 1920, Goodyear died. April 19, 1921, relying upon the Federal Employers’ Liability Act, his widow, as administratrix and in behalf of herself and her children, brought this action for damages against the Director General in the District Court, Republic County, Kansas. She alleged that her husband’s death resulted from the injuries suffered July 31, 1919. As a bar to the action the answer set up the settlement and release above referred to; and the administratrix replied that the beneficiaries had a separate cause of action for their pecuniary damage which the decedent could not release. The cause was twice tried and twice considered by the Supreme Court of Kansas. At the first trial, the jury was 5&63°—29-------22 338 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. told—“ You are instructed that the law favors a compromise and settlement of disputes, and, when parties in good faith enter into an agreement based on good consideration, neither is afterwards permitted to deny it.” Judgment for the Director General was reversed by the Supreme Court. It held the quoted instruction erroneous. The opinion shows care and research, and forcefully sets out the argument against the power of an injured employee to destroy the right of dependants to recover in event of his death. 114 Kan. 557; 115 Kan. 20. At the second trial the court instructed the jury— “ The Federal Employers’ Liability Act, under which plaintiff’s action was brought, creates two separate and distinct rights of action resulting from an injury such as complained of by the plaintiff in this case; one right of action to the injured employee for his suffering and loss resulting from the injury, and one to his personal representative for the benefit of his surviving widow and children, in the event death results from the injury. “And you are instructed that the latter cause of action could not be released by the deceased Lewis Goodyear by any action taken by him. It accrues solely to his personal representative for the benefit of the persons named and Lewis Goodyear in his lifetime would have no control over same. “ In other words, it did not accrue until his death and hence he could not release it by any act on his part.” Answering special questions, the jury found that no fraud attended the settlement; Goodyear was mentally capable of transacting business at the time; there was no mutual mistake as to his physical condition; the release was not given under the mistaken belief that the material results of his injuries had disappeared; and nothing was allowed for funeral expenses. Upon a verdict in her favor for $5,000.00 judgment went for the administratrix, which the Supreme Court af- MELLON v. GOODYEAR. 339 335 Opinion of the Court. firmed, definitely approving the instruction last quoted. 121 Kan. 392. She died July 10, 1926, and Edward Goodyear was duly substituted by order of Supreme Court of Kansas. The question for our decision is whether the settlement between Goodyear and the employer made advisedly and in good faith barred an action by dependants for their pecuniary damages through his death. The Liability Act, approved April 22, 1908, 35 Stat. 65, c. 149, provided— “ Sec. 1. That every common carrier by railroad while engaging in commerce between any of the several States or Territories', or between ’any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” The amending Act, of April 5, 1910, 36 Stat. 291, c. 143, added the following— “ Sec. 9. That any right of action given by this Act to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee, and, if none, then of such employee’s parents; and, if none, then 340 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. of the next of kin dependent upon such employee, but in such cases there shall be only one recovery for the same injury.” In Michigan Central Railroad Company v. Vreeland, 227 U. S. 59, 65, 67, 68, 69, 70—an action by the administrator to recover for loss suffered by the wife by reason of her husband’s wrongful death—this Court considered the original statute (1908) and held that the employee’s right of action to recover such damages as would compensate for expenses, loss of time, suffering, and diminished earning power did not survive his death. Also that the mere existence of such a right in the employee’s lifetime did not destroy the dependant’s right under the statute to recover for pecuniary damages consequent upon the death. By Mr. Justice Lurton, the Court said— “We think the act declares two distinct and independent liabilities, resting, of course, upon the common foundation of a wrongful injury, but based upon altogether different principles. . . . “ The Act of 1908 does not provide for any survival of the right action created in behalf of an injured employé. That right of action was therefore extinguished. . . . “ The obvious purpose of Congress was to save a right of action to certain relatives dependent upon an employé wrongfully injured, for the loss and damage resulting to them financially by reason of the wrongful death. . . . “ This cause of action is independent of any cause of action which the decedent had, and includes no damages which he might have recovered for his injury if he had survived. It is one beyond that which the decedent had,—one proceeding upon altogether different principles. It is a liability for the loss and damage . . . resulting to them and for that only. “ The statute in giving an action for the benefit of certain members of the family of the decedent is essentially identical with the first act which ever provided for a cause MELLON v. GOODYEAR. 341 335 Opinion of the Court. of action arising out of the death of a human being, that of 9 and 10 Victoria, known as Lord Campbell’s Act. . . . “ But as the foundation of the right of action is the original wrongful injury to the decedent, it has been generally held that the new action is a right dependent upon the existence of a right in the decedent immediately before his death to have maintained an action for his wrongful injury. Tiffany, Death by Wrongful Act, § 124; Louisville, E. & St. L. R. R. Co. v. Clark, 152 U. S. 236; Read v. G. E. Ry., L. R. 3 Q. B. 555; Hecht v. 0. & M. Ry., 132 Ind. 507; Fowlkes v. Nashville & Decatur R. R. Co., 9 Heisk. 829; Littlewood v. Mayor, 89 N. Y. 24; Southern Bell Tel. Co. v. Cassin, 111 Ga. 575. “ The distinguishing features of that act [Lord Campbell’s Act] are identical with the act of Congress of 1908 before its amendment; First, it is grounded upon the original wrongful injury of the person; second, it is for the exclusive benefit of certain specified relatives; third, the damages are such as flow from the deprivation of the pecuniary benefits which the beneficiaries might have reasonably received if the deceased had not died from his injuries. “ The word ‘pecuniary ’ did not appear in Lord Campbell’s Act, nor does it appear in our act of 1908. But the former act and all those which follow it have been continuously interpreted as providing only for compensation for pecuniary loss or damage.” St. Louis & Iron Mountain Ry. Co. v. Craft, 237 U. S. 648, 657, 658— An administrator sought to recover for the father’s benefit under the Federal Employers’ Liability Act as amended in 1910. Damages were claimed on account of (a) pecuniary loss to the father, and (b) conscious pain and suffering by the decedent. The Railway Company insisted that the recovery should be restricted either to the pecuniary loss to the father, or to the damages sus 342 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. tained by the injured person while alive; that the statute does not permit recovery for both. This Court held otherwise, and said— “ If the matter turned upon the original act alone it is plain that the recovery here could not include damages for the decedent’s pain and suffering, for only through a provision for a survival of his right could such damages be recovered after his death. But the original act is not alone to be considered. On April 5, 1910, prior to the decedent’s injuries the act was amended. . . . No change was made in § 1. . . . It continues, as before, to provide for two distinct rights of action; one in the injured person for his personal loss and suffering where the injuries are not immediately fatal, and the other in his personal representative for the pecuniary loss sustained by designated relatives where the injuries immediately or ultimately result in death. Without abrogating or curtailing either right, the new section provides in exact words that the right given to the injured person ‘shall survive’ to his personal representative ‘for the benefit of ’ the same relatives in whose behalf the other right*is given. Brought into the act by way of amendment, this provision expresses the deliberate will of Congress. . . . Although originating in the same wrongful act or neglect, the two claims are quite distinct, no part of either being embraced in the other. One is for the wrong to the injured person and is confined to his personal loss and suffering before he died, while the other is for the wrong to the beneficiaries and is confined to their pecuniary loss through his death. One begins where the other ends, and a recovery upon both in the same action is not a double recovery for a single wrong but a single recovery for a double wrong. . . . ” In Frese, Admx., v. Chicago, Burlington & Quincy R. R. Co., 263 U. S. 1, 4, an action under the Liability Act for MELLON v. GOODYEAR. 343 335 Opinion of the Court. damages consequent upon death of the plaintiff’s intestate, it was said: “ If the engineer could not have recovered for an injury his administratrix can not recover for his death. Michigan Central R. R. Co. v. Vreeland, 227 U. S. 59, 70.” The injuries were due primarily to the default of the engineer and the employer never became liable to him. In Reading Company v. Koons, Admr., 271 U. S. 58, 64, the administrator sought recovery by suit commenced seven years after the employee’s death, but within two years after the granting of administration. This Court declared the action was barred. In Oliver v. Seaboard Air Line Ry. (1919), 261 Fed. 1, 2, 3, 4, the employee received injuries March 31, 1912, and died August 11, 1915. The administrator sued and the Railway Company resisted on the ground that, during his lifetime, the decedent had recovered a judgment for the damages sustained which had been satisfied. The trial court overruled the defense and allowed recovery. The Circuit Court of Appeals reversed the judgment and said— a The defendant in error’s lack of right to maintain his suit in such a situation as the one under consideration is due, not to the decedent’s lack,' immediately prior to his death, of an enforceable right of action for the injury he sustained, but to the fact that the cause of action counted on has been extinguished by payment of the judgment recovered by the decedent for the wrong he suffered.” Obviously, the settlement and release of March 16,1920, satisfied and discharged any claim against the Director General for the personal loss and suffering of Goodyear. Immediately before his death he had no right of action and nothing passed to the administratrix because of such loss and suffering. Hence, it is that the administratrix must recover, if at all, under § 1, Act of 1908, which imposes liability for pecuniary loss sustained by dependants through death. 344 OCTOBER TERM, 1927. Opinion of the Court. 277U.S. Concerning that section, Vreeland’s case, supra, declares: “But as the foundation of the right of action is the original wrongful injury to the decedent, it has been generally held that the new action is a right dependent upon existence of a right in the decedent immediately before his death to have maintained an action for his wrongful injury.” And no later opinion here has given expression to any other view. By the overwhelming weight of judicial authority, where a statute of the nature of Lord Campbell’s Act in effect gives a right to recover damages for the benefit of dependants, the remedy depends upon the existence in the decedent at the time of his death of a right of action to recover for such injury. A settlement by the wrongdoer with the injured person, in the absence of fraud or mistake, precludes any remedy by the personal representative based upon the same wrongful act. Construing the statute of Kansas, the Supreme Court of that State seems to have accepted this generally approved doctrine. Fuller, Admx. v. Atchison, T. Ac S. F. R. Co., 124 Kan. 66. The cases supporting this view, from courts of last resort in twenty-one States, Canada and England, are collected in a note following the first opinion of the Supreme Court of Kansas in the present cause, reported in 39 A. L. R., 579. And in Tiffany on Wrongful Death, 2d ed., § 124, the rule (with supporting authorities) is thus broadly stated— “ If the deceased, in his lifetime, has done anything that would operate as a bar to a recovery by him of damages for the personal injury, this will operate equally as a bar in an action by his personal representatives for his death. Thus, a release by the party injured of his right of action, or a recovery of damages by him for the injury, is a complete defense in the statutory action. But, while the courts have agreed in their decisions, they have had difficulty in reconciling them with the express declaration of MELLON v. GOODYEAR. 345 335 Opinion of the Court. the statute that the action may be maintained whenever the act, neglect, or default is such that the party injured, if death had not ensued, might have maintained an action. . . . “ It is hardly possible to place the general holding upon any very logical ground. The position taken by the courts is fairly enough summed up as follows: ‘Whether the right of action is a transmitted right or an original right, whether it be created by a survival statute or by a statute creating an independent right, the general consensus of opinion seems to be that the gist and foundation of the right in all cases is the wrongful act, and that for such wrongful act but one recovery should be had, and that if the deceased had received satisfaction in his lifetime, either by settlement and adjustment or by adjudication in the courts, no further right of action existed.’ ” Strode v. Transit Co., 197 Mo. 616. See also—Edwards v. Chemical Co., 170 N. C. 551; Louisville R. Co. v. Raymond’s Admr., 135 Ky. 738; Perry’s Admr. v. L. & N. R. Co., 199 Ky. 396; State v. United Rys., 121 Md. 457; Hill v. Penn. Ry. Co., 178 Pa. 223. Considering the repeated holdings of many courts of last resort, the declarations by this Court, and the probable ill consequences to both employees and employers which would follow the adoption of the contrary view, we must conclude that the settlement and release relieved the Director General from all liability for damages consequent upon the injuries received by Goodyear and his death. The Statute of 1908 is entitled “An Act Relating to the liability of common carriers by railroad to their employees in certain cases.” Fifteen years ago this Court affirmed that insofar as it gives an action for the benefit of dependants, the statute is essentially identical with Lord Campbell’s Act. Continued adherence to this view 346 OCTOBER TERM, 1927. Syllabus. 277 U.S. is emphasized by repeated holdings that dependants can recover only pecuniary damages. American Railroad Co. of Porto Rico v. Didricksen, 227 U. S. 145, 149; Gulf, Colorado & Santa Fe Ry. Co. n. McGinnis, 228 U. S. 173; C. & 0. Ry. Co. v. Kelly, Admx., 241 U. S. 485; C. de 0. Ry. Co. v. Gainey, Admr., 241 U. S. 494; Gulf, Colorado & Santa Fe Ry. Co. v. Moser, 275 U. S. 133. Neither statute defines the nature of the damages to be recovered; this was left for interpretation. We followed the construction given the earlier one when it became necessary to interpret and apply the later and similar act. The judgment of the court below must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed. MIDLAND NATIONAL BANK OF MINNEAPOLIS v. DAKOTA LIFE INSURANCE COMPANY. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 425. Argued April 12, 13, 1928.—Decided May 28, 1928. 1. A judgment of the District Court cannot be reversed by the Circuit Court of Appeals upon a proposition outside of the issues raised by the pleadings and which no fact admitted, nor evidence received, offered or excluded, tends to sustain. So held when a judgment on an assigned life insurance policy, though in all other respects sustained, was reversed upon the ground that the policy was in part a wagering contract—a matter not litigated in the District Court. P. 349. 2. A valid life insurance policy is not rendered void by assignment to one not having an insurable interest. P. 350. 18 F. (2d) 903, reversed. Certiorari, 275 U. S. 515, to a judgment of the Circuit Court of Appeals, which reversed a judgment on a MIDLAND BANK v. INS. CO. 347 346 Opinion of the Court. life insurance policy recovered by the Bank against the Insurance Company. Mr. Sigurd Ueland, with whom Mr. Andreas Ueland was on the brief, for petitioner. Mr. John B. Hanten for respondent. Mr. Justice Brandeis delivered the opinion of the Court. The Midland National Bank of Minneapolis brought this action, in 1923, in a state court of Minnesota. It sought to recover on a policy of life insurance for $10,000 issued by the Dakota Life Insurance Company in the year 1920. The defendant, a South Dakota corporation, removed the cause to the federal court. There the case was tried before a jury. It was alleged and proved that the policy had been issued in North Dakota on the life of Oscar Mosher, payable to his estate; that it was assigned to the plaintiff in 1923 in North Dakota by Mosher and one Jacobson, a prior assignee; that the assignment recited that it was given to secure payment to the Bank of the sum of $10,000 according to the tenor and conditions of two promissory notes; that two demand notes for $5,000 each, signed by Mosher, had been given to the Bank by Jacobson as collateral for the latter’s indebtedness to it in a larger amount; that the assignment bearing the approval of the Company was delivered to the Bank about the same time that it received the collateral notes; that of these notes the Bank became the absolute owner by foreclosure; that no part of them had been paid; that Mosher died soon after giving the notes, while the policy was in force; and that proofs of death had been duly furnished before this action was begun. The answer to the amended complaint alleged, among other things, that the policy had been obtained from the 348 OCTOBER TERM, 1927. Opinion of the Court. 277 U. S. Company through a fraudulent conspiracy entered into by Mosher, Jacobson and the Dazey State Bank, of which the latter was president; that the two collateral notes were obtained from Mosher by fraud and without consideration; and that the Company when it approved the assignment to the plaintiff was unaware of these facts. On the plaintiff’s motion the court struck out the paragraphs of the answer alleging that the policy had been procured by fraud, on the ground that under the statutes of North Dakota the policy had become incontestable; and it struck out also certain other paragraphs making “ allegations in reference to equities of third parties in connection with the assignments of the policy in suit.” The Company then filed an amended answer. This answer again set up the alleged invalidity of the assignments, the fraud on Mosher in obtaining the notes, and the want of consideration for the latter. It also alleged that in proceedings instituted by the Company in North Dakota the policy had been cancelled. Evidence in support of the latter allegation was excluded at the trial, on the ground that the Bank had not been brought within the jurisdiction of the North Dakota court. The Company then made an offer of proof in support of its allegation that the notes and the assignment had been obtained by Jacobson from Mosher by trickery and without consideration. On the Bank’s objection all this evidence was excluded. At the close of the evidence each party asked for a directed verdict. On admissions contained in the pleadings and on the evidence, the trial court found that the notes were taken by the Bank as security for a pre-existing debt, and held that, since under the law of North Dakota and of Minnesota a pre-existing debt constitutes value, the plaintiff was a holder for value of the notes and was entitled to recover on the policy assigned to secure their payment; and it assessed the damages for the full amount MIDLAND BANK v. INS. CO. 349 346 Opinion of the Court. claimed, that is, $10,000 (less an unpaid instalment of premium) and interest. The Circuit Court of Appeals held that the several offers of proof were properly rejected; and that the Bank was entitled to recover on the policy. But it reversed