UNITED STATES REPORTS VOLUME 290 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1933 From October 2, 1933 to and Including (In Part) January 8, 1934 ERNEST KNAEBEL REPORTER UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON: 1934 For sale by the Superintendent of Documents, Washington, D.C. - Price $1.50 (Buckram). ERRATA. 278 U.S. 131, line 22, Mr. W. Carr Morrow’s surname was misspelled “ Corrow.” 282 U.S. 595, line 34, change “ 1914 ” to 1924. 286 U.S. 511, line 38, change “ 284 ” to 285. ii JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS 1 CHARLES EVANS HUGHES, Chief Justice. WILLIS VAN DEVANTER, Associate Justice. JAMES CLARK McREYNOLDS, Associate Justice. LOUIS D. BRANDEIS, Associate Justice. GEORGE SUTHERLAND, Associate Justice. PIERCE BUTLER, Associate Justice. HARLAN FISKE STONE, Associate Justice. OWEN J. ROBERTS, Associate Justice. BENJAMIN N. CARDOZO, Associate Justice. HOMER S. CUMMINGS, Attorney General. J. CRAWFORD BIGGS, 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 next page. ni SUPREME COURT OF THE UNITED STATES 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 acts of Congress in such case made and provided, and that such allotment be entered of record, viz: For the First Circuit, Louis Dembitz Brandeis, Associate Justice. For the Second Circuit, Harlan Fiske Stone, Associate Justice. For the Third Circuit, Owen J. Roberts, Associate Justice. For the Fourth Circuit, Charles Evans Hughes, Chief Justice. For the Fifth Circuit, Benjamin N. Cardozo, Associate Justice. For the Sixth Circuit, James C. McReynolds, Associate Justice. For the Seventh Circuit, Willis Van Devanter, Associate Justice. For the Eighth Circuit, Pierce Butler, Associate Justice. For the Ninth Circuit, George Sutherland, Associate Justice. For the Tenth Circuit, Willis Van Devanter, Associate Justice. March 28, 1932. IV TABLE OF CASES REPORTED — Page. Abraham v. Perkins............................ 661 Adams v. Commissioner......................... 660 Aderhold, Miller v............................ 626 Aderhold, Poffenbarger v...................... 703 Aderhold, Reid v.............................. 676 Aetna Casualty & Surety Co., Trainor Co. v..... 47 Agles v. Stolze Lumber Co..................... 604 Aker v. Aker.................................. 587 Aker, Aker v.................................. 587 Alameda County Home Inv. Co., Whitaker v.......640 Alaska Steamship Co. v. United States....... 256, 608 Alcorn, Missouri Pacific R. Co. v............. 701 Alexander v. Cosden Pipe Line Co........... 484, 608 Algoma Lumber Co., Federal Trade Comm’n v...... 607 Allen Gasoline Co. v. Franklin Fire Ins. Co... 698 Altvater v. Freeman........................... 696 Ambler Grain & Milling Co., Southern Pac. R. Co. v.. 697 American Airways v. Grosjean.................. 596 American Baseball Club v. Philadelphia........ 595 American Bond & M. Co., Royal Indemnity Co. v... 680 American Chain Co. v. Eaton................... 612 American Chicle Co., Burnet v................. 616 American Cigar Co. v. Commissioner............ 699 American-Hawaiian S.S. Co. v. Musaus.......... 702 American Indemnity Co. v. Hale County......... 697 American Tobacco Co. v. United States......... 669 American-West African Line v. United States.... 628 Anargyros v. United States.................... 670 Anderson, Chesapeake & Ohio Ry. Co. v......... 675 v VI TABLE OF CASES REPORTED. Page. Anderson, U.S. Trust Co. v...................... 683 Approximately 3,251,000 Feet of Lumber, Seas Ship- ping Co. v....................................... 653 Aquilera y Kindelan v. Ickes.................... 684 Arcata & Mad River R. Co., U.S. ex rel., v. I.C.C.... 632 Archerd v. Oregon............................... 604 Arenz, Fidelity & Deposit Co. v.................. 66 Arkansas, Pennsylvania v........................ 596 Armour Fertilizer Works, Sanders v.............. 623 Arrow-Hart & Hegeman Co. v. Federal Trade Commission....................................... 622 Arzt v. Flershem................................ 504 Aschenbrenner v. U.S. Fidelity & G. Co.......... 622 Askenase, Baer v................................ 707 Associated Co., Greenhut v...................... 696 Atchison & Eastern Bridge Co. v. Clark.......... 701 Atchison, T. & S. F. Ry. Co. v. Union Wire Rope Corp............................................. 686 Atlanta Goodwill Industries, Jackson v.......... 625 Atlantic Coast Line R. Co. v. Primus............ 639 Atlantic Coast Line R. Co. v. Stringfellow... 322, 608 Atlantic Coast Line R. Co., Stringfellow v... 322, 608 Atlantic Life Ins. Co., Hoefer v................ 701 Atlantic Oil Transit Corp. v. Procter & Gamble Co.. 689 Atwater (Wm. C.) & Co. v. United States......... 678 Automobile Abstract & T. Co. v. Fitzgerald....... 628 Baer v. Askenase................................ 707 Baird v. United States.......................... 690 Bakers Bay Fish Co., United States v............ 592 Baldwin, Ex parte........................... 601,606 Baltimore, Jack Lewis, Inc. v................... 585 Baltimore Equitable Society v. United States..... 662 B. & O. Highway Transp. Co., Irving Trust Co. v... 627 Baltimore & Ohio R. Co. v. Domestic Hardwoods.... 647 Bancroft, Travelers Ins. Co. v.................. 680 Bank of California v. International Mercantile Marine Co.......................................... 649 TABLE OF CASES REPORTED. VII Page. Bank of Italy National T. & S. Assn. v. Bentley.... 659 Barnes, Trudeau v............................... 659 Bartlett Frazier Co. v. Wallace................. 654 Barton, Southern Ry. Co. v.......................632 Bass, Weatherford, Crump & Co. v................ 648 Bass Furniture & Carpet Co., Wolf v............. 665 Bauman, Sedalia ex rel., Mid-Continent Corp, v.... 706 Bauman, Sedalia ex rel., National Rfg. Co. v..... 706 Bauman, Sedalia ex rel., Shell Petroleum Corp. v.... 706 Bauman, Sedalia ex rel., Sinclair Refining Co. v.... 706 Bauman, Sedalia ex rel., Skelly Oil Co. v...... 706 Bauman, Sedalia ex rel., Standard Oil Co. v..... 706 Bauman, Sedalia ex rel., White Eagle Co. v...... 706 Bayly, Dakin v.................................. 143 Bay Trust Co., Galbraith v...................... 653 Beard v. Smith.............................. 596, 602 Becker Steel Co. v. Hicks....................... 667 Bedford Mills v. United States.................. 655 Beneficial Loan Society v. Commissioner......... 677 Benjamin, Ex parte.............................. 588 Bennett, Birmingham Belt R. Co. v............... 634 Bennett, Norumbega Co. v...................... 598 Bennett, United States v........................ 694 Benson, Chicago, R. I. & P. Ry. Co. v........... 636 Bentley, Bank of Italy National T. & S. Assn. v.... 659 Bergen Lloyd v. Munson Steamship Line........... 635 Bergen Lloyd, Munson Steamship Line v........... 635 Bernstein, Ex parte............................. 593 Best v. District of Columbia.................... 619 Birmingham Belt R. Co. v. Bennett............... 634 Bisbee Linseed Co. v. Paragon Paint & Varnish Corp. 701 Blackwell, Kline v.............................. 636 Blaisdell, Home Bldg. & Loan Assn, v............ 398 Blasius, Minnesota v.............................. 1 Blum v. Davis................................... 630 Board of County Comm’rs, Miller v.............. 586 VIII TABLE OF CASES REPORTED. Page. Board of R. R. Comm’rs, Stanolind Co. v.......... 684 Board of Supervisors v. Board of Supervisors..... 595 Board of Supervisors, Board of Supervisors v...... 595 Board of Water Comm’rs, Maryland Casualty Co. v.. 702 Bobo, Northwestern Pacific R. Co. v........... 499, 612 Bodine & Clark Comm’n Co. v. Great Northern Ry. Co........................................... 629 Bodron, Employers Liability Assur. Corp, v...... 698 Bogan v. Hynes................................ 690 B. & 0. Highway Transp. Co., Irving Trust Co. v... 627 Boric, U.S. ex rel., v. Marshall............. 623, 709 Boston Broadcasting Co. v. Federal Radio Comm’n.. 679 Boston Safe Deposit & T. Co. v. Helvering........ 700 Bosworth v. Continental Illinois Bank & T. Co.... 621 Bourne v. Commissioner........................... 650 Bowers, Glenn v................................. 681 Boyce, Ex parte................................. 604 Branton, New Orleans & G. N. R. Co. v........... 667 Brashears, Giannini v........................... 700 Brewster v. United States....................... 623 Brill v. W. B. Foshay Co........................ 643 Bristol, Rutledge v....................... i..... 664 Brooklyn Edison Co., Electric Cable Joint Co. v.... 624 Brown v. Commissioner........................... 607 Brown v. Irving Trust Co........................ 619 Brown, New York Central R. Co. v................ 634 Brown, Routzahn v............................... 641 Brown Shoe Co. v. Carns......................... 695 Brunson, Burnet v............................... 656 Bryan, P. F. Petersen Baking Co. v.............. 570 Bryant, United Order of Good Samaritans v........ 641 Bryant Paper Co. v. Holden....................... 631 Buckley v. Commissioner......................... 698 Buick Motor Co., Kessler v...................... 660 Bullard v. City of Cisco........................ 179 Bumpass, Louisville & N. R. Co. v............... 654 Burlew v. Fidelity & Casualty Co................ 686 TABLE OF CASES REPORTED. IX - Page. Burnet v. American Chicle Co.................... 616 Burnet v. Brunson............................... 656 Burnet v. Canfield.............................. 611 Burnet v. Chicago & N. W. Ry. Co................ 672 Burnet, Comar Oil Co. v......................... 652 Burnet v. Falk.................................. 616 Burnet, Fidelity Savings & Loan Assn, v.......... 652 Burnet, Freuler v............................... 610 Burnet v. Hutchinson Coal Co.................... 652 Burnet, Lepic v................................. 610 Burnet v. Mutual Life Ins. Co................... 670 Burnet v. Norfolk Southern R. Co......•......... 672 Burnet v. Pringle............................... 656 Burnet, Stearns v....,.......................... 670 Burnet, Whitcomb v........................ 610, 611 Burroughs v. United States.................. 534, 618 Busch, Midland Finance Corp, v.................. 645 Busch v. United States.......................... 627 Butte, A. & P. Ry. Co. v. United States......... 127 Butterworth, Helvering v........................ 365 Cable Radio Tube Corp. v. Radio Corporation...... 703 Cady Lumber Co., Fain v......................... 674 Caigan, Plibrico Jointless Firebrick Co. v...... 668 California Packing Corp. v. Tillman & Bendel.... 638 California Packing Corp., Tillman & Bendel v..... 638 Callas, Independent Taxi Owners Assn, v......... 669 Canal-Commercial National Bank v. Commissioner.. 628 Canal-Commercial Trust & S. Bank v. Commissioner. 628 Canfield, Burnet v............................ 611 Cannon v. United States..................... 534, 618 Carns, Brown Shoe Co. v......................... 695 Carolina Contracting Co. v. Standard Accident Ins. Co.............................................. 688 Carroll, United States v....................... 694 Carter, Marvel Carburetor Co. v................. 673 Carter Oil Co., Eli v........................... 635 Cates, Old Dominion Stages v.................... 687 X TABLE OF CASES REPORTED. Page. Celotex Co. v. Masonite Corp................... 708 Central Kentucky Natural Gas Co. v. Railroad Comm’n...................................... 264 Central Union Bank, N.Y. Underwriters Ins. Co. v.. 679 Century Indemnity Co. v. Nelson................ 683 C. F. Harms Co., Oil Transfer Corp, v......... 654 Chandler v. Manifold........................... 665 Chapman v. Washington Ry. & Elec. Co........... 661 Charles Ilfeld Co. v. Hernandez................ 624 Chase, Ormsby v............................. 387, 609 Chase National Bank v. Norwalk................. 614 Chavez, United States v........................ 357 C. H. Earle, Inc., Globe Indemnity Co. v........ 674 Chemische Fabrik Von Heyden v. Tait............ 648 Chesapeake & Ohio Ry. Co. v. Anderson.......... 675 Chesapeake & Ohio Ry Co., Glogora Coal Co. v.... 658 Chesapeake & Ohio Ry Co., Moore v.............. 613 Cheves v. Whitehead............................ 704 Chicago, B. & Q. R. Co., Clarke v.............. 629 Chicago & E. I. Ry. Co. v. Public Serv. Comm’n.. 688 Chicago Great W. R. Co., Missouri Pac. R. Co. v.... 634 Chicago, I. & L. Ry. Co., United States v...... 671 Chicago, M., St. P. & P. R. Co. v. Tate........ 631 Chicago & N. W. Ry. Co., Burnet v.............. 672 Chicago, R. I. & P. Ry Co. v. Benson........... 636 Children’s Home Society v. Swan................ 704 C. H. Sprague & Son Co., Helvering v.......... 591 Chua, Vargas v............................... 662 Cisco, City of, Bullard v...................... 179 Claiborne-Reno Co. v. E. I. DuPont de Nemours & Co........................................ 646 Clapier v. Flershem............................ 504 Clark, Atchison & Eastern Bridge Co. v......... 701 Clark v. Moffett........................... 602,642 Clark v. Williard.............................. 619 Clarke v. Chicago, B. & Q. R. Co............... 629 Clark’s Ferry Bridge Co. v. Public Service Comm’n.. 632 TABLE OF CASES REPORTED. XI Page. Cleveland, C., C. & St. L. Ry. Co. v. Henry.... 627 Cleveland, C., C. & St. L. Ry. Co. v. Taylor... 685 Coale v. Pearson.............................. 597 Coalinga-Mohawk Oil Co. v. Commissioner....... 637 Cobb v. Dept, of Public Utilities............. 707 Cobb v. National Surety Co.................... 692 Cohen Goldman & Co. v. United States.......... 681 Colorado, Ex parte............................ 588 Columbia Casualty Co. v. Tipma................ 633 Columbia-Deschutes Power Co. v. Stricklin...... 590 Columbian National Life Ins. Co., Pine v...... 691 Columbia Transportation Co., International Co. v.. 622 Columbo Co. v. United States.................. 673 Comar Oil Co. v. Burnet....................... 652 Commissioner, Adams v......................... 660 Commissioner, American Cigar Co. v............ 699 Commissioner, Beneficial Loan Society v....... 677 Commissioner, Bourne v........................ 650 Commissioner, Brown v......................... 607 Commissioner, Buckley v........................ 698 Commissioner, Canal-Commercial National Bank v. 628 Commissioner, Canal-Commercial T. & S. Bank v. 628 Commissioner, Coalinga-Mohawk Oil Co. v....... 637 Commissioner, Darcy v......................... 705 Commissioner, Delaware & Hudson Co. v......... 670 Commissioner, Detroit Trust Co. v............. 686 Commissioner, Fawsett v...............i.. 641 Commissioner, Gloyd v......................... 633 Commissioner, Goldstein v..................... 651 Commissioner, Gowen v......................... 687 Commissioner, Kasch v......................... 644 Commissioner, Meredith Publishing Co. v....... 646 Commissioner, Mulqueen v...................... 644 Commissioner, Neal v.......................... 675 Commissioner, O’Donnell v..................... 699 Commissioner, Spinks Realty Co. v............. 636 Commissioner, Thorsen v....................... 612 XII TABLE OF CASES REPORTED. Page. Commissioner, United Business Corp, v.......... 635 Commissioner, Utah Home Fire Ins. Co. v........ 679 Commissioner, Van Dyke v....................... 615 Commissioner, Walker v......................... 651 Commonwealth Trust Ct>., Queen v.J............ 662 Compagnie Francaise de Navigation a Vapeur v. Elting................................... 692,693 Coney, Hicklin v............................... 169 Connell v. Walker.............................. 620 Conoscente v. United States.................... 642 Conroy, Wabash Ry. Co. v...................... 631 Consolidated Coppermines Corp. v. Nevada Consol. Copper Co...................................... 664 Consolidation Coal Co., United States v........ 648 Consumers Co., First Union Trust & Savings Bank v. 585 Continental Illinois Bank & T. Co., Bosworth v.... 621 Continental Illinois Bank & T. Co. v. United States. 663 Cooper v. Dasher............................... 106 Cooper, Reynolds v............................. 616 Corning Glass Works v. Robertson............... 645 Corn Products Rfg. Co., Penick & Ford v........ 634 Corsicana v. Hulen............................. 662 Corwin v. Lane................................. 644 Cosden Pipe Line Co., Alexander v.......... 484, 608 Cotonio, State ex rel., v. Italo-American Assn. 694 Cox & Carpenter, Little v...................... 678 Crawford v. Hale............................... 674 Cremin, Heiden v............................... 687 Crompton & Knowles Loom Works v. White......... 669 Cronkleton, Hall v............................. 685 Crown Willamette Paper Co., Nevada v........... 708 Crucible Steel Casting Co. v. Helvering........ 695 Cuff v. United States.......................... 676 Cullen Fuel Co. v. Hedger Co.................... 82 Cullman, Radio-Keith-Orpheum Corp, v.......... 647 Cunningham v. Pacific Mutual Life Ins. Co...... 685 Curtis Publishing Co. v. Neyland....;.......... 661 TABLE OF CASES REPORTED. xm Page. Curtiss-Wright Flying Service v. Glose......... 696 Cuyahoga Valley Ry. Co., Gilvary v............. 622 Dakin v. Bayly................................ 143 Danciger Oil & Rfg. Co. v. Smith............... 599 Darcey v. O’Brien.............................. 658 Darcy v. Commissioner.......................... 705 Dasher, Cooper v..........:.................... 106 Dasher, Ex parte............................... 604 Davidson, Duncanson-Harrelson Co. v............ 687 Davis, Blum v................................. 630 Davis v. Hollowell............................. 703 Davis, Paxson v................................ 643 Davison Chemical Co., Newberry v............... 660 Dean v. United States.......................... 663 Deere (John) Plow Co., Turner v................ 700 Deering v. Stites.............................. 640 Delarmi v. United States....................... 675 Delaware & Hudson Co. v, Commissioner.......... 670 Delaware & Hudson Co. v. Glens Falls Cement Co... 697 Denver. Miller v............................... 586 Department of Public Utilities, Cobb v......... 707 Deptula, Pennsylvania R. Co. v................. 643 Detroit Fidelity & Surety Co. v. Third Nat. Bank.. 667 Detroit Motor Appliance Co., Taylor v.......... 698 Detroit Trust Co. v. Commissioner.............. 686 Dickerson v. United States..................... 665 Dimon S.S. Corp., Krauss Bros. Lumber Co. v.... 117 Di Pippa, Ex parte............................ 606 District of Columbia, Best v................. 619 Diven v. Sieling.............................. 587 Doerschuck, Z. & F. Assets Realization Corp, v. 697 Domenech, George L. Squier Mfg. Co. v...........708 Domestic Hardwoods, Baltimore & Ohio R. Co. v... 647 Donner, Sheer Pharmacal Corp, v................ 658 Dooley (F. T.) Lumber Co. v. United States....... 640 Dooley Improvements v. Motor Improvements...... 689 Duke, Helvering v............................. 591 XIV TABLE OF CASES REPORTED. Page. Dunbar v. United States........................ 626 Duncanson-Harrelson Co. v. Davidson............ 687 DuPont (E. I.) de Nemours & Co., Claiborne-Reno Co. v.......................:......✓............ 646 Earle (C. H.), Inc., Globe Indemnity Co. v...... 674 Earlston Coal Co. v. Huntington National Bank.... 637 Eaton, American Chain Co. v.................... 612 Ed S. Michelson, Inc. v. Nebraska Tire & R. Co.... 634 Edwards, Glenn v.................. 4............ 681 E. H. Ferree Co. v. United Shoe Machinery Corp.. 614, 708 E. I. DuPont de Nemours & Co., Claiborne-Reno Co. v......................................... 646 Electric Cable Joint Co. v. Brooklyn Edison Co.. 624 Eli v. Carter Oil Co.......................... 635 Elliot v. Lombard.............................. 619 El Paso, Jackson v............................. 680 Elting, Compagnie Francaise de Navigation v.. 692, 693 Elting, Navigazione Generale Italiana v........ 691 Elting, Transatlantica Italiana v.............. 691 Empire Storage & Ice Co. v. National Match Co.... 668 Employers’ Liability Assur. Corp. v. Bodron..... 698 Employers’ Liability Assur. Corp. v. Kerper..... 637 Equitable Life Assur. Society, Fitz Gerald v.... 674 Esselstyn v. Helvering......................... 678 Ex parte Baldwin........................... 601,606 Ex parte Benjamin.............................. 588 Ex parte Bernstein............................. 593 Ex parte Boyce................................. 504 Ex parte Colorado.............................. 588 Ex parte Dasher................................* • 604 Ex parte Di Pippa.............................. 606 Ex parte Fletcher..;........................... 588 Ex parte Heussler.............................. 588 Ex parte Jordon................................ 589 Ex parte Latta................................. 596 Ex parte Martin.............................. • 589 Ex parte Mayer................................. 601 TABLE OF CASES REPORTED. xv Page. Ex parte McCarthy.............................. 592 Ex parte Miller................................ 605 Ex parte Poresky................................ 30 Ex parte Rubin................................. 589 Ex parte Salisbury............................. 588 Ex parte Thomas................................ 597 Ex parte Western Loan & Securities Co.......... 601 Ex parte Williams.............................. 589 Export Steamship Corp., M. & T. Trust Co. v..... 650 Factor v. Laubenheimer......................... 276 Fain v. Cady Lumber Co......................... 674 Fairbanks, Morse & Co., Texas Electric Co. v.... 655 Falbo v. United States......................... 618 Falk, Burnet v................................ 616 Fawsett v. Commissioner........................ 641 Federal-American Nat. Bank & T. Co., McReynolds v.............................................. 666 Federal Land Bank v. Gaines................ 247, 609 Federal Land Bank v. Warner....................; 620 Federal Radio Comm’n, Boston Broadcasting Co. v.. 679 Federal Radio Comm’n, Pote v................... 680 Federal Trade Comm’n v. Algoma Lumber Co........ 607 Federal Trade Comm’n, Arrow-Hart & Hegeman Co. v........................................... 622 Federal Trade Comm’n, Inecto, Inc. v........... 682 Federal Trade Comm’n v. R. F. Keppel & Bro...... 613 Ferguson v. United States...................... 694 Ferree (E. H.) Co. v. United Shoe Machinery Corp........................................ 614, 708 Fidelity & Casualty Co., Burlew v.............. 686 Fidelity & Deposit Co. v. Arenz................. 66 Fidelity National Bank & T. Co., Simmons v...... 647 Fidelity-Philadelphia Trust Co., Helvering v.... 365 Fidelity Savings & Loan Assn. v. Burnet........ 652 Field Packing Co., Glenn v.................... 177 Fire Companies’ Adjustment Bureau, Werth v...... 659 First National Bank v. Flershem................ 504 XVI TABLE OF CASES REPORTED. Page. First National Bank v. Gildart.................. 631 First National Bank, Larabee Flour Mills Co. v... 594 First National Bank v. Miami..................... 594 First National Bank v. Talbott................... 683 First National Bank v. United States............. 652 First National Bank & T. Co. v. Stock Yards Loan Co........................................... 648 First Trust & Savings Bank, Surprise v........... 653 First Union Trust & Savings Bank v. Consumers Co. 585 Fiske, Missouri v................................. 18 Fitzgerald, Automobile Abstract & Title Co. v.... 628 Fitz Gerald v. Equitable Life Assur. Society..... 674 Fix v. Philadelphia Barge Co..................... 530 Fleitmann v. Helvering........................... 638 Flershem, Arzt v................................. 504 Flershem, Clapier v.............................. 504 Flershem, First National Bank v.................. 504 Fletcher, Ex parte............................... 588 Florala, Life & Casualty Ins. Co. v.............. 630 Florida, Laramore v.............................. 689 Fort, Ross v..................................... 603 Foshay Trust & S. Bank v. Public Util. Corp...... 653 Foshay (W. B.) Co., Brill v...................... 643 Frankel v. United States......................... 682 Franklin Fire Ins. Co., Allen Gasoline Co. v..... 698 Franz, Wallace v................................ 699 Freedman v. United States........................ 642 Freeman, Altvater v.............................. 696 Freuler v. Burnet................................ 610 Friedberg v. United States....................... 646 F. T. Dooley Lumber Co. v. United States........ 640 Fugate v. Toledo, P. & W. R. Co.................. 632 Funk v. United States........................ 371, 616 Funkhouser v. J. B. Preston Co................... 163 F. W. Woolworth Co., Schmeling v................ 605 Gaines, Federal Land Bank v.................. 247, 609 TABLE OF CASES REPORTED. xvn Page. Galbraith v. Bay Trust Co..........................653 Gans Steamship Line v. United States.............. 657 Garretson, National Surety Co. v.................. 638 Garrison v. Johnson.............................. 668 Gatto v. United States............................ 662 General Excavator Co., Keystone Driller Co. v.... 240 General Motors Corp., Rubsam Corp, v.............. 688 General Motors Truck Co., Solow v................. 629 George L. Squier Mfg. Co. v. Domenech............. 708 Gerrick (Joe) & Co., Murray v..................... 615 Giannini v. Brashears............................. 700 Gibbes v. Zimmerman............................... 326 Gildart, First National Bank v.................... 631 Gillette Safety Razor Co. v. Hawley Hardware Co... 649 Gillette Safety Razor Co. v. Standard Razor Co.... 649 Gilvary v. Cuyahoga Valley Ry* Co................. 622 Gist v. New York Life Ins. Co..................... 651 Glenn v. Bowers................................... 681 Glenn v. Edwards.................................. 681 Glenn v. Field Packing Co......................... 177 Glens Falls Portland Cement Co., Delaware & H. Co. v.......................................... 697 Globe Excelsior Oak Tanning Co. v. United States. 627 Globe Indemnity Co. v. C. H. Earle, Inc. 674 Globe Indemnity Co. v. U.S. ex rel. Steacy-Schmidt Mfg. Co........................................ 618 Glogora Coal Co. v. Chesapeake & Ohio Ry. Co.... 658 Glose, Curtiss-Wright Flying Service v............ 696 Gloyd v. Commissioner............................. 633 Goldman (Cohen) & Co. v. United States............ 681 Goldstein v. Commissioner......................... 651 Good Samaritans, United Order of, v. Bryant.... 641 Goodyear Tire & Rubber Co. v. Jamaica Tire Service. 700 Goodyear Tire & Rubber Co. v. Overman Co....... 681 Gowen v. Commissioner............................. 687 Grace Line v. Toulon.............................. 668 15459°—34-----n XVIII TABLE OF CASES REPORTED. Page. Gray, Quanah, A. & P. Ry. Co. v.................. 636 Great Northern Ry. Co., Bodine & Clark Comm’n Co. v.......................................... 629 Greenawalt v. Stearns-Roger Mfg. Co............ 631 Greenhut v. Associated Co...................... 696 Greenhut v. National Commercial Title & M. G. Co. 695 Grissinger v. United States.................... 676 Griswold v. Helvering........................... 56 Grosjean, American Airways v................... 596 Gulf, C. & S. F. Ry. Co., Spivey v............. 676 Haff, Hansen v................................. 615 Hale, Crawford v............................... 674 Hale County, American Indemnity Co. v.......... 697 Hall v. Cronkleton............................. 685 Hamburg-American Line v. United States......... 615 Hamburg-Amerikanische Packetfahrt Aktiengesell-schaft, May v............................... 333, 609 Hansen v. Haff................................. 615 Hard Jefferson County v........................ 598 Hardie, Jannett v.............................. 602 Harjim, Inc. v. Owens.......................... 655 Harms (C. F.) Co., Oil Transfer Corp, v.......... 654 Harr v. Pioneer Mechanical Corp................ 673 Harrison County v. Pottawattamie County......... 595 Hartley Bros., Missouri Pacific R. Co. v.... 576,613 Hawley Hardware Co., Gillette Safety Razor Co. v. 649 Heath, Southern Realty Corp, v................. 692 Hedger (W. E.) Co., Cullen Fuel Co. v........... 82 Heiden v. Cremin............................... 687 Helvering, Boston Safe Deposit & T. Co. v....... 700 Helvering v. Butterworth....................... 365 Helvering v. C. H. Sprague & Son Co............ 591 Helvering, Crucible Steel Casting Co. v........ 695 Helvering v. Duke.............................. 691 Helvering, Esselstyn v......................... 678 Helvering v. Fidelity-Philadelphia Trust Co..... 365 Helvering, Fleitmann .......................... 638 TABLE OF CASES REPORTED. XIX Page. Helvering, Griswold v............................. 56 Helvering, New Colonial Ice Co. v............... 621 Helvering v. Newport Co.......................... 620 Helvering u New York Life Ins. Co................ 682 Helvering v. Northern Coal Co.................... 591 Helvering v. Oswego & Syracuse R. Co............. 591 Helvering v. Pardee.............................. 365 Helvering, Ramsey v.............................. 673 Helvering, Roney v............................. 705 Helvering, Rosenbloom Finance Corp, v............ 692 Helvering, Schapiro v............................ 705 Helvering, Security Trust Co. v............i..... 686 Helvering, State Consolidated Oil Co. v.......... 704 Helvering v. Title Guarantee Loan & T. Co........ 365 Helvering v. U.S. Refractories Corp.............. 591 Helvering v. Warner.............................. 688 Helvering, Welch v............................... Ill Helvering, W. H. Hill Co. v..................... 691 Helvering, Whitehead v........................... 690 Helvetia Milk Condensing Co., United States v.... 671 Henry, Cleveland, C., C. & St. L. Ry. Co. v...... 627 Hernandez, Charles Ilfeld Co. v.................. 624 Heussler, Ex parte............................... 588 Hicklin v. Coney................................. 169 Hicks, Becker Steel Co. v.................... 667 Highland Milk Condensing Co., United States v.... 671 Highway Engineering & C. Co. v. Hillsborough County........................................... 705 Hillsborough County, Highway Eng. & C. Co. v.... 705 Hill (W. H.) Co. v. Helvering.................... 691 Hitt, McGovern v................................ 637 Hoefer v. Atlantic Life Ins. Co.................. 701 Holden, Bryant Paper Co. v.................... 631 Hollowell, Davis v............................... 703 Home Bldg. & Loan Assn. v. Blaisdell............. 398 Home Insurance Co. v. Sullivan Machinery Co...... 633 Hopkins v. Texas Co.............................. 629 XX TABLE OF CASES REPORTED. Page. Hosey v. Mid-Continent Petroleum Corp........... 702 Hosier v. United States......................... 677 Hulen, Corsicana v.............................. 662 Hunt v. Texas................................... 586 Huntington National Bank, Earlston Coal Co. v.... 637 Hussman, Morris v............................... 700 Hutchinson Coal Co., Burnet v................... 652 H. W. Roos Co., McMillan v...................... 684 Hynes, Bogan v.................................. 690 Ickes, Aquilera y .Kindelan v................... 684 Ilf eld (Charles) Co. v. Hernandez.............. 624 Impiriale v. Perkins............................ 690 Independent Taxi Owners Assn. v. Callas......... 669 Inecto, Inc. v. Federal Trade Comm’n............ 682 Ingalls, Lamson Co. v........................... 671 Ingram v. Oregon................................ 630 International Mercantile Marine Co., Bank of California v........................................ 649 International Milling Co. v. Columbia Transp. Co... 622 Interstate Commerce Comm’n v. Pennsylvania R. Co.............................................. 617 Interstate Commerce Comm’n, U.S. ex rel. Arcata &M.R.R. Co. v................................... 632 Intertype Corp. v. Pulver....................... 660 Iowa ex rel. Board of R.R. Comm’rs v. Stanolind Co.. 684 Irving Trust Co. v. B. & O. Highway Transp. Co... 627 Irving Trust Co., Brown v....................... 619 Irving Trust Co., Mackey v...................... 682 Irving Trust Co., Malavazos v............... 620, 709 Irving Trust Co., Manhattan Properties v........ 619 Italo-American Homstead Assn., State ex rel. Co-tonio v......................................... 694 Jack Lewis, Inc. v. Baltimore....................585 Jackson v. Atlanta Goodwill Industries.......... 625 Jackson v. El Paso.............................. 680 Jackson v. United States....................... 626 TABLE OF CASES REPORTED. XXI Page. Jacobs v. United States.......................... 13 Jamaica Truck Tire Service, Goodyear Co. v....... 700 Jamaica Truck Tire Service, Sears, Roebuck & Co. v. 700 Jamerson v. United States....................... 706 Jannett v. Hardie............................... 602 J. B. Preston Co., Funkhouser v................. 163 Jefferson County v. Hard........................ 598 Jefferson Electric Mfg. Co., United States v..... 607 Joe Gerrick & Co., Murray v..................... 615 John Deere Plow Co., Turner v................... 700 John K. & C. S. Mullen Corp. v. United States.... 89 Johnson, Garrison v............................. 668 Johnson, Kosmos Portland Cement Co. v........... 641 Johnson v. United States.................... 651, 677 Johnson Oil Rfg. Co. v. Oklahoma ex rel. Mitchell.. 158 Jones, Missouri State Life Ins. Co. v........... 199 Jones, New York, O. & W. Ry. Co. v.............. 687 Jordon, Ex parte................................ 589 Jorgensen v. Thomberg........................... 694 Junod v. Smith.................................. 704 Kabadian v. Perkins............................. 661 Kadow v. Robertson.............................. 663 Kansas City Sou. Ry. Co., Williford v.............. 666 Karl v. New York Central R. Co.................. 669 Karlson v. United States........................ 623 Kasch v. Commissioner........................... 644 Kelley v. New York City......................... 637 Kelly-How-Thomson Co., Phila. Battery Co. v...... 651 Keppel (R. F.) & Bro., Federal Trade Comm’n v.. 613 Kerper, Employers’ Liability Assur. Corp, v...... 637 Kessler v. Buick Motor Co....................... 660 Keystone Driller Co. v. General Excavator Co..... 240 Keystone Driller Co. v. Osgood Co............... 240 KFAB Broadcasting Co. v. Sorensen............... 599 Kip v. New York Central R. Co................... 636 Kline v. Blackwell.............................. 636 XXII TABLE OF CASES REPORTED. Page. Klinge v. Southern Pacific Co.................... 657 Klopstock (Paul) & Co. v. United Fruit Co........ 593 Kosmos Portland Cement Co. v, Johnson............ 641 Kosmos Portland Cement Co. v. Sauer.............. 641 Kowal v. Perkins................................. 661 Krauss Bros. Lumber Co. v. Dimon S.S. Corp....... 117 Kristiansen, Standard Dredging Co. v............. 704 Ladner v. Philadelphia Barge Co.................. 611 Lafayette Worsted Co. v. Page.................... 692 Lake, Oakes v..................................... 59 Lamson Co. v. Ingalls........................... 671 Landress v. Phoenix Mutual Life Ins. Co.......... 614 Lane, Corwin v................................... 644 Larabee Flour Mills Co. v. First Nat. Bank....... 594 Laramore v. Florida.............................. 689 Larsen v. Northland Transportation Co............ 624 Latta, Ex parte.................................. 596 Laubenheimer, Factor v........................... 276 Lee v. Maryland................................ 639 Lepic v. Burnet.................................. 610 Levi v. Murrell.................................. 638 Lewis, Rosenberg v............................... 696 Lewis (Jack), Inc. v. Baltimore.................. 585 Lidstrom v. Spongberg............................ 650 Life & Casualty Ins. Co. v. Florala.............. 630 Lindsey, Spur Distributing Co. v................. 588 Little v. Cox & Carpenter........................ 678 Livingston v. Mortgage Loan Co................... 685 Lombard, Elliot v.............................. 619 London & Lancashire Indemnity Co. v. Stefus...... 657 Long v. Stites................................... 640 Lorillard (P.) & Co. v. United States............ 669 Loughran v. Loughran............................. 621 Loughran, Loughran v............................. 621 Louisiana v. Mississippi......................... 590 Louisiana, United States v........................ 70 Louisville & N. R. Co. v. Bumpass................ 654 TABLE OF CASES REPORTED. . xxm Page. Lukens v. Pennsylvania....................... 597 Lumbra v. United States.................. 551, 611 Luppino v. United States..................... 674 Luse v. United States........................ 651 Lynch, N.Y. ex rel. Northern Finance Corp, v.. 601 Lytle, Southern Railway-Carolina Division v... 645 Mackey v. Irving Trust Co.................... 682 Malavazos v. Irving Trust Co............. 620, 709 Manhattan Properties v. Irving Trust Co...... 619 Manifold, Chandler v......................... 665 Mann v. United States........................ 645 Marion v. Sneeden.............................617 Mark v. Wilson............................... 689 Marland v. United States..................... 658 Marshall, U.S. ex rel. Boric v........... 623, 709 Martin, Ex parte............................. 589 Martin v. Royal Mail Steam Packet Co......... 667 Martin v. Tennessee Copper & Chemical Corp.... 683 Martin v. United States...................... 646 Marvel Carburetor Co. v. Carter........... 673 Maryland, Lee v.............................. 639 Maryland Casualty Co. v. Board of Water Comm’rs. 702 Masonite Corp., Celotex Co. v................ 708 Massachusetts, Snyder v...................... 606 May v. Hamburg-Amerikanische Gesellschaft... 333, 609 Mayer, Ex parte............................. 601 Mayne v. St. Louis Union Trust Co............ 643 Mayor of Baltimore, Jack Lewis, Inc. v....... 585 McCarl, Miguel v............................. 618 McCarthy, Ex parte........................... 592 McGovern v. Hitt............................. 637 McGowan, United States v....................... 592 McGreevy v. National Surety Co............... 644 McGuire v. United States..................... 645 McHale, New York, O. & W. Ry. Co. v.......... 686 McKnett v. St. Louis & San Francisco Ry. Co... 621 McMahon, Spruill v........................... 625 XXIV . TABLE OF CASES REPORTED. Page. McMillan v. H. W. Roos Co....................... 684 McReynolds v. Federal-American Nat. Bank & T. Co.............................................. 666 Meredith Publishing Co. v. Commissioner..........646 Merriam v. U.S. District Court.................. 707 Mestice v. Ohrbach’s Affiliated Stores.......... 625 Miami, First Nat. Bank v........................ 594 Michelson (Ed S.), Inc. v. Nebraska Tire & R. Co... 634 Mid-Continent Petroleum Corp., Hosey v.......... 702 Mid-Continent Petroleum Corp. v. Sedalia ex rel, Bauman.......................................... 706 Midland Finance Corp. v. Busch................. 645 Midland Refining Co., Terry v................... 660 Miguel v. McCarl................................ 618 Miller v. Aderhold.............................. 626 Miller v. Board of County Commr’s............... 586 Miller v. Denver................................ 586 Miller, Ex parte................................ 605 Miller, Southern Pacific Co. v.................. 697 Miller v. Union Pacific R. Co............... 227, 607 Minnesota v. Blasius.............................. 1 Minnesota Mortgage Moratorium Case.............. 398 Mississippi, Louisiana v........................ 590 Mississippi, Principality of Monaco v........... 606 Mississippi, U.S. Fidelity & G. Co. v........... 678 Missouri v. Fiske................................ 18 Missouri Pacific R. Co. v. Alcorn............... 701 Missouri Pacific R. Co. v. Chicago G. W. R. Co... 634 Missouri Pacific R. Co. v. Hartley Bros..... 576, 613 Missouri Pacific R. Co. v. Norwood.............. 600 Missouri Pacific R. Corp. v. Nebraska State Ry. Comm’n.......................................... 656 Missouri State Life Ins. Co. v. Jones........... 199 Mitchell, Oklahoma ex rel., Johnson Oil Rfg. Co. v.. 158 Mobile & Ohio R. Co. v. Williams................ 655 Modica, New York Central R. Co. v............... 647 Moffett, Clark v............................ 602, 642 TABLE OF CASES REPORTED. XXV Page. Monaco v. Mississsippi........................ 606 Montana v. United States...................... 593 Moore v. Chesapeake & Ohio Ry. Co............. 613 Mooremack Gulf Lines, Pacific Atlantic S.S. Co. v.. 643 Moran Towing & Transp. Co. v. Robins Dry Dock & Repair Co................................. 656, 657 Morris v. Hussman............................. 700 Mortgage Loan Co., Livingston v................. 685 Mosheik v. United States...................... 654 Motor Improvements, Dooley Improvements v..:.. 689 M. & T. Trust Co. v. Export Steamship Corp..... 650 Mullen Benevolent Corp. v. United States....... 89 Mulqueen v. Commissioner..................... 644 Munson Steamship Line v. Bergen Lloyd......... 635 Munson Steamship Line, Bergen Lloyd v......... 635 Murdock, United States v.................. 389, 606 Murray v. Joe Gerrick & Co.................... 615 Murrell, Levi v............................... 638 Musaus, American-Hawaiian S.S. Co. v.......... 702 Muscarelle v. United States................... 642 Mutual Life Ins. Co., Burnet v................ 670 Mutual Lumber Co. v. Poe...................... 706 Nabong v. Philippine Islands.................. 655 Nathanson v. United States..................... 41 National Commercial Title & M. G. Co., Greenhut v. 695 National Match Co., Empire Storage & Ice Co. v... 668 National Park Bank v. United States........... 664 National Refining Co. v. Sedalia ex rel. Bauman.... 706 National Surety Co., Cobb v................... 692 National Surety Co. v. Garretson.............. 638 National Surety Co., McGreevy v............... 644 Navigazione Generale Italiana v. Elting....... 691 Neal v. Commissioner.......................... 675 Nebraska State Ry. Comm’n, Missouri Pacific R. Corp, v...................................... 656 Nebraska Tire & R. Co., Ed S. Michelson, Inc. v.... 634 Needham, United States v...................... 694 XXVI TABLE OF CASES REPORTED. Page. Nelson, Century Indemnity Co. v................ 683 Nevada v. Crown Willamette Paper Co............ 708 Nevada Consolidated Copper Co., Consol. Copper- mines Corp, v.................................. 664 Newberry v. Davison Chemical Co................ 660 New Colonial Ice Co. v. Helvering.............. 621 New Hampshire, Vermont v........... 579, 589, 602, 605 New Jersey v. New York City.................... 237 Newman, Shoemaker v............................ 656 New Orleans & G. N. R. Co. v. Branton.......... 667 Newport Co., Helvering v....................... 620 New York Central R. Co. v. Brown.............. 634 New York Central R. Co., Karl v................ 669 New York Central R. Co., Kip v................. 636 New York Central R. Co. v. Modica.............. 647 New York City, Kelley v........................ 637 New York City, New Jersey v.................... 237 New York ex rel. Northern Finance Corp. v. Lynch.. 601 New York Life Ins. Co., Gist v................. 651 New York Life Ins. Co., Helvering v............ 682 New York, O. & W. Ry. Co. v. Jones............. 687 New York, O. & W. Ry. Co. v. McHale............ 686 New York Underwriters Ins. Co. v. Central Union Bank........................................... 679 Neyland, Curtis Publishing Co. v............... 661 Norcott, United States v....................... 694 Norfolk Southern R. Co., Burnet v.............. 672 Northern Coal Co., Helvering v................. 591 Northern Finance Corp., N.Y. ex rel., v. Lynch.. 601 Northern Indiana Pub. Serv. Co., Comm’n v....... 592 Northern Trust Co. v. United States............ 663 Northland Transportation Co., Larsen v......... 624 Northwestern Pacific R. Co. v. Bobo........ 499, 612 Norton v. Vesta Coal Co........................ 613 Norumbega Co. v. Bennett....................... 598 Norwalk, Chase National Bank v................. 614 Norwood, Missouri Pacific R. Co. v................ 600 TABLE OF CASES REPORTED. XXVII Page. Oakes v. Lake................................... 59 O’Brien, Darcey v.............................. 658 O’Donnell v. Commissioner...................... 699 O’Hearne v. United States...................... 683 Ohrbach’s Affiliated Stores, Mestice v......... 625 Oil Transfer Corp. v. C. F. Harms Co........... 654 O’Keefe, Zurich General A. & L. Ins. Co. v...... 630 Oklahoma ex rel. Mitchell, Johnson Oil Rfg. Co. v.. 158 Old Dominion Stages v. Cates................... 687 Olson v. United States........................ 623 Opelousas-St. Landry Securities Co. v. United States 684 Order of Good Samaritans v. Bryant............. 641 Oregon, Archerd v.............................. 604 Oregon, Ingram v............................... 630 Ormsby v. Chase........................... 387,609 Osgood Co., Keystone Driller Co. v..............240 Oswego & Syracuse R. Co., Helvering v.......... 591 Overman Cushion Tire Co., Goodyear Tire Co. v... 681 Owens, Harjim, Inc. v.......................... 655 Pacific Atlantic S.S. Co. v. Mooremack Gulf Lines.. 643 Pacific Mutual Life Ins. Co., Cunningham v...... 685 Packer, United States v....................... 694 Page, Lafayette Worsted Co. v.................. 692 Pagel v. Pagel................................. 620 Pagel, Pagel v......... ....................... 620 Paragon Paint & Varnish Corp., Bisbee Co. v..... 701 Pardee, Helvering v............................ 365 Paul Klopstock & Co. v. United Fruit Co.........593 Paxson v. Davis................................ 643 Pearson, Coale v............................. 597 Peck v. United States.......................... 701 Penick & Ford v. Corn Products Rfg. Co......... 634 Pennsylvania v. Arkansas....................... 596 Pennsylvania, Lukens v......................... 597 Pennsylvania Coal & Coke Corp. v. United States.. 661 Pennsylvania R. Co. v. Deptula................. 643 Pennsylvania R. Co., Commission v.............. 617 XXVIII TABLE OF CASES REPORTED. Page. Perkins, Abraham v................................ 661 Perkins, Impiriale v.............................. 690 Perkins, Kabadian v............................. 661 Perkins, Kowal v.................................. 661 Perkins, Petikas v................................ 661 Perkins, Polombo v................................ 661 Perkins, Spica v.................................. 661 Petersen Baking Co. v. Bryan...................... 570 Petikas v. Perkins................................ 661 Pfaffinger v. United States.......•............... 705 P. F. Petersen Baking Co. v. Bryan................ 570 Philadelphia, American Baseball Club v............ 595 Philadelphia Barge Co., Fix v..................... 530 Philadelphia Barge Co., Ladner v.................. 611 Philadelphia Fire & M. Ins. Co. v. United States.. 703 Philadelphia Storage Battery Co. v. Kelly-How- Thomson Co........................................ 651 Philippine Islands, Nabong v...................... 655 Philippine Islands, Romualdez v................... 629 Phoenix Mutual Life Ins. Co., Landress v.......... 614 Piedmont Coal Co., Tower Hill Connellsville Coke Co. v............................................. 675 Pine v. Columbian National Life Ins. Co........... 691 Pioneer Mechanical Corp., Harr v.................. 673 Pitt, United States v............................. 640 Pizzitolo v. United States........................ 666 Plaza Amusement Co. v. Rothenberg................. 707 Plibrico Jointless Firebrick Co. v. Caigan.......... 668 P. Lorillard & Co. v. United States............... 669 Poe, Mutual Lumber Co. v.......................... 706 Poffenbarger v. Aderhold.......................... 703 Pokora v. Wabash Ry. Co........................... 624 Polombo v. Perkins............................... 661 Poresky, Ex parte.................................. 30 Pote v. Federal Radio Comm’n...................... 680 Pottawattamie County, Harrison County v........... 595 Pottorff, Texas & Pacific Ry. Co. v............... 609 TABLE OF CASES REPORTED. XXIX Page. Preston (J. B.) Co., Funkhouser v................ 163 Primus, Atlantic Coast Line R. Co. v............. 639 Principality of Monaco v. Mississippi............ 606 Pringle, Burnet v................................ 656 Prinsen, Travelers Protective Assn, v............ 618 Procter & Gamble Co., Atlantic Oil Transport Corp, v. 689 Provident Trust Co., United States v............. 614 Public Service Comm’n, Chicago & E. I. Ry. Co. v... 688 Public Service Comm’n, Clark’s Ferry Bridge Co. v.. 632 Public Service Comm’n v. Northern Indiana Co.... 592 Public Utilities Consol. Corp., Foshay T. & S. Bank v......................................... 653 Public Utilities Dept., Cobb v.............. 707 Pulver, Intertype Corp, v........................ 660 Putnam, Treadwell v......................... 665 Pyrate Corp., Sorensen v................ t. 689 Quanah, A. & P. Ry Co. v. Gray................... 636 Queen v. Commonwealth Trust Co................... 662 Rabkin v. United States.......................... 664 Radio Corporation, Cable Radio Tube Corp, v...... 703 Radio Corporation v. Radio Eng. Laboratories..... 624 Radio Engineering Laboratories, Radio Corp. v.... 624 Radio-Keith-Orpheum Corp. v. Cullman............. 647 Railroad Comm’n, Central Kentucky Co. v.......... 264 Ramsey v. Helvering............................ 673 Reid v. Aderhold................................. 676 Reily, United States v............................ 33 Reynolds v. Cooper............................... 616 R. F. Keppel & Bro., Federal Trade Comm’n v......613 Rhoderick v. Swartzell........................... 677 R. H. Steams Co. v. United States................ 611 Robertson, Corning Glass Works v........... i... 645 Robertson, Kadow v............................... 663 Robins Dry Dock & Repair Co., Moran Co. v... 656, 657 Robson v. United States.......................... 665 Romualdez v. Philippine Islands.................. 629 Roney v. Helvering............................... 705 XXX TABLE OF CASES REPORTED. Page. Roos (H. W.) Co., McMillan v.................... 684 Rosenberg v. Lewis.............................. 696 Rosenberg v. Wisconsin.......................... 600 Rosenbloom Finance Corp. v. Helvering........... 692 Ross v. Fort.................................... 603 Rothenberg, Plaza Amusement Co. v............... 707 Routzahn v. Brown............................... 641 Routzahn v. Willard Battery Co.................., 612 Rover, Spruill v................................ 625 Royal Indemnity Co. v. American Bond & M. Co.... 680 Royal Mail Steam Packet Co., Martin v........... 667 Rubin, Ex parte............................... 589 Rubsam Corp. v. General Motors Corp............. 688 Rutledge v. Bristol............................. 664 St. Joseph Loan & T. Co. v. Studebaker Corp...... 699 St. Louis, Wabash Ry. Co. v..................... 668 St. Louis & San Francisco Ry. Co., McKnett v..... 621 St. Louis Union Trust Co., Mayne v............. 643 Salisbury, Ex parte............................. 588 Sanders v. Armour Fertilizer Works.............. 623 Sauer, Kosmos Portland Cement Co. v............. 641 Schapiro v. Helvering........................... 705 Schmeling v. F. W. Woolworth Co................. 605 Seals v. United States.......................... 659 Sears, Roebuck & Co. v. Jamaica Tire Service..... 700 Sears, Roebuck & Co. v. United States.......... 633 Seas Shipping Co. v. 3,251,000 Feet of Lumber.... 653 Security Bldg. & Loan Assn., Spurlock v......... 678 Security Trust Co. v. Helvering................. 686 Sedalia ex rel. Bauman, Mid-Continent Corp. v.... 706 Sedalia ex rel. Bauman, National Rfg. Co. v...... 706 Sedalia ex rel. Bauman, Shell Petroleum Corp, v... 706 Sedalia ex rel. Bauman, Sinclair Refining Co. v.. 706 Sedalia ex rel. Bauman, Skelly Oil Co. v........ 706 Sadalia ex rel. Bauman, Standard Oil Co. v....... 706 Sedalia ex rel. Bauman, White Eagle Co. v....... 706 Sevier, Tate v.................................. 679 TABLE OF CASES REPORTED. XXXI Page. Seymour, Texas Electric Service Co. v.......... 685 Sheer Pharmacal Corp. v. Donner................ 658 Shell Petroleum Corp. v. Sedalia ex rel. Bauman.... 706 Shepard v. United States........................ 96 Shoemaker v. Newman.............................. 656 Sieling, Diven v................................. 587 Simmons v. Fidelity Nat. Bank & T. Co.......... 647 Simons, Wells v.................................. 695 Sinclair Refining Co. v. Sedalia ex rel. Bauman.... 706 Skelly Oil Co. v. Sedalia ex rel. Bauman....... 706 Smith, Beard v............................. 596, 602 Smith, Danciger Oil & Rfg. Co. v............... 599 Smith, Junod v................................. 704 Smith, Wald Transfer & Storage Co. v........ 596, 602 Sneeden, Marion v............................. 617 Snyder v. Massachusetts........................ 606 Solow v. General Motors Truck Co............... 629 Sorensen v. Pyrate Corp........................ 689 Sorensen, KFAB Broadcasting Co. v.............. 599 South Carolina Asparagus Growers Assn. v. South- ern Ry. Co..................................... 647 Southern Cities Distributing Co. v. Texarkana.... 650 Southern Pacific Co., Klinge v................. 657 Southern Pacific Co. v. Miller................. 697 Southern Pacific R. Co. v. Ambler Grain & M. Co... 697 Southern Ry. Co. v. Barton..................... 632 Southern Ry. Co., S.C. Asparagus Growers Assn, v.. 647 Southern Ry. Co. v. Virginia................... 190 Southern Railway-Carolina Division v. Lytle...... 645 Southern Realty Corp. v. Heath................. 692 Southern Shipyard Corp. v. United States....... 640 Speroni v. United States....................... 702 Spica v. Perkins............................... 661 Spinks Realty Co. v. Commissioner.............. 636 Spivey v. Gulf, C. & S. F. Ry. Co.............. 676 Spongberg, Lidstrom v.......................... 650 Sprague (C. H.) & Son Co., Helvering v..........591 XXXII TABLE OF CASES REPORTED. Page. Spruill v. McMahon................................ 625 Spruill v. Rover.................................. 625 Spur Distributing Co. v. Lindsey.................. 588 Spurlock v. Security Bldg. & Loan Assn............ 678 Squier (George L.) Mfg. Co. v. Domenech........... 708 Standard Accident Ins. Co., Carolina Co. v........ 688 Standard Dredging Co. v. Kristiansen.............. 704 Standard Oil Co. v. Sedalia ex rel. Bauman........ 706 Standard Oil Co. v. United States................. 632 Standard Safety Razor Co., Gillette Co. v......... 649 Stanolind Pipe Line Co., Iowa ex rel. Board v..... 684 State Consolidated Oil Co. v. Helvering........... 704 State Corporation Comm’n v. Wichita Gas Co........561 State ex rel. Cotonio v. Italo-American Assn...... 694 Steacy-Schmidt Mfg. Co., U.S. ex rel., Globe Indem- nity Co. v........................................ 618 Stearns v. Burnet................................. 670 Stearns (R. H.) Co. v. United States.............. 611 Stearns-Roger Mfg. Co., Greenawalt v............. 631 Stefus, London & Lancashire Indemnity Co. v....... 657 Stites, Deering v................................. 640 Stites, Long v.................................... 640 Stock Yards Loan Co., First Nat. Bank & T. Co. v.. 648 Stolze Lumber Co., Agles v...................... 604 Stricklin, Columbia-Deschutes Power Co. v......... 590 Stringfellow v. Atlantic Coast Line R. Co..... 322, 608 Stringfellow, Atlantic Coast Line R. Co. v.... 322, 608 Studebaker Corp., St. Joseph Loan & Trust Co. v.... 699 Sullivan Machinery Co., Home Insurance Co. v.... 633 Surprise v. First Trust & Savings Bank............ 653 Swan, Children’s Home Society v................... 704 Swartzell, Rhoderick v............................ 677 Tait, Chemische Fabrik Von Heyden v............... 648 Talbott, First National Bank v.................... 683 Tate, Chicago, M., St. P. & P. R. Co. v........... 631 Tate v. Sevier.................................... 679 Taylor, Cleveland, C., C. & St. L. Ry. Co. v...... 685 TABLE OF CASES REPORTED. xxxiii Page. Taylor v. Detroit Motor Appliance Co............. 698 Taylor v. U.S. Casualty Co....................... 639 Tennessee, Trotter v........................ 354, 608 Tennessee Copper & Chemical Corp., Martin v....... 683 Terry v. Midland Refining Co..................... 660 Tessitore v. United States....................... 659 Texarkana, Southern Cities Distributing Co. v..... 650 Texas, Hunt v.................................... 586 Texas Co., Hopkins v............................. 629 Texas Electric Service Co. v. Fairbanks, M. & Co.... 655 Texas Electric Service Co. v. Seymour............ 685 Texas & Pacific Ry. Co. v. Pottorf!.............. 609 Texas & Pacific Ry. Co. v. United States......... 672 Third National Bank, Detroit Fidelity & S. Co. v... 667 Thomas, Ex parte................................. 597 Thornberg, Jorgensen v.......................... 694 Thorsen v. Commissioner.......................... 612 Threatt v. United States......................... 626 3,251,000 Feet of Lumber, Seas Shipping Co. v..... 653 Tillman & Bendel v. California Packing Corp....... 638 Tillman & Bendel, California Packing Corp, v...... 638 Tipma, Columbia Casualty Co. v................... 633 Title Guarantee Loan & Trust Co., Helvering v..... 365 Toledo, P. & W. R. Co., Fugate v................. 632 Toulon, Grace Line v............................. 668 Tower Hill Connellsville Coke Co. v. Piedmont Co... 675 Trainor Co. v. Aetna Casualty & Surety Co......... 47 Transatlantica Italiana v. Elting................ 691 Travelers Insurance Co. v. Bancroft.............. 680 Travelers Protective Assn. v. Prinsen............ 618 Treadwell v. Putnam.............................. 665 Tropic-Aire v. Wildermuth........................ 653 Trotter v Tennessee........................ 354, 608 Trudeau v Barnes................................. 659 Turner v. John Deere Plow Co..................... 700 Union Central Life Ins. Co., Williams v.......... 613 Union Pacific R. Co., Miller v............... 227, 607 15459°—34-----in xxxiv TABLE OF CASES REPORTED. Page. Union Wire Rope Corp., A., T. & S. F. Ry. Co. v.... 686 United Business Corp. v. Commissioner............. 635 United Fruit Co., Paul Klopstock & Co. v.......... 593 United Order of Good Samaritans v. Bryant.......... 641 United Shoe Mach. Corp., Ferree Co. v......... 614, 708 United States, Alaska Steamship Co. v......... 256, 608 United States, American Tobacco Co. v............. 669 United States, American-West African Line v........ 628 United States, Anargyros v........................ 670 United States, Baird v............................ 690 United States v. Bakers Bay Fish Co............... 592 United States, Baltimore Equitable Society v....... 662 United States, Bedford Mills v.................... 655 United States v. Bennett.......................... 694 United States, Brewster v......................... 623 United States, Burroughs v.................... 534, 618 United States, Busch v............................ 627 United States, Butte, A. & P. Ry. Co. v........... 127 United States, Cannon v....................... 534,618 United States v. Carroll........................ 694 United States v. Chavez........................... 357 United States v. Chicago, I. & L. Ry. Co.......... 671 United States, Cohen Goldman & Co. v.............. 681 United States, Columbo Co. v...................... 673 United States, Conoscente v....................... 642 United States v. Consolidation Coal Co............ 648 United States, Continental Illinois Bank & T. Co. v.. 663 United States, Cuff .............................. 676 United States, Dean .............................. 663 United States, Delarmi ........................... 675 United States, Dickerson ......................... 665 United States, Dunbar ............................ 626 United States, Falbo ............................. 618 United States, Ferguson .......................... 694 United States, First National Bank ............... 652 United States, Frankel ........................... 682 United States, Freedman .......................... 642 TABLE OF CASES REPORTED. XXXV Page. United States, Friedberg v....................... 646 United States, F. T. Dooley Lumber Co. v.......... 640 United States, Funk v....................... 371, 616 United States, Gans Steamship Line v............. 657 United States, Gatto v........................... 662 United States, Globe Excelsior Oak Tanning Co. v.. 627 United States, Grissinger v...................... 676 United States, Hamburg-American Line v........... 615 United States v. Helvetia Milk Condensing Co...... 671 United States v. Highland Milk Condensing Co......671 United States, Hosier v.......................... 677 United States, Jackson v......................... 626 United States, Jacobs v........................... 13 United States, Jamerson v........................ 706 United States v. Jefferson Electric Mfg. Co....... 607 United States, Johnson v...................... 651, 677 United States, Karlson v......................... 623 United States v. Louisiana........................ 70 United States, Lumbra v...................... 551,611 United States, Luppino v......................... 674 United States, Luse v............................ 651 United States, Mann v........................... 645 United States, Marland v......................... 658 United States, Martin v.......................... 646 United States v. McGowan......................... 592 United States, McGuire v......................... 645 United States, Montana v......................... 593 United States, Mosheik v......................... 654 United States, Mullen Benevolent Corp, v.......... 89 United States v. Murdock...................... 389, 606 United States, Muscarelle v...................... 642 United States, Nathanson v........................ 41 United States, National Park Bank v.............. 664 United States v. Needham......................... 694 United States v. Norcott......................... 694 United States, Northern Trust Co. v.............. 663 United States, O’Hearne v.........................683 xxxvi TABLE OF CASES REPORTED. Page. United States, Olson v........................... 623 United States, Opelousas-St. Landry Securities Co. v. 684 United States v. Packer.......................... 694 United States, Peck v............................ 701 United States, Pennsylvania Coal & Coke Corp. v... 661 United States, Pfaffinger v....................... 705 United States, Philadelphia Fire & M. Ins. Co. v... 703 United States v. Pitt............................ 640 United States, Pizzitolo v....................... 666 United States, P. Lorillard & Co. v.............. 669 United States v. Provident Trust Co.............. 614 United States, Rabkin v......................... 664 United States v. Reily............................ 33 United States, R. H. Steams Co. v................ 611 United States, Robson v.......................... 665 United States, Seals v........................... 659 United States, Sears, Roebuck & Co. v............ 633 United States, Shepard v.......................... 96 United States, Southern Shipyard Corp, v......... 640 United States, Speroni v......................... 702 United States, Standard Oil Co. v................ 632 United States, Tessitore v...................... 659 United States, Texas & Pacific Ry Co. v.......... 672 United States, Threatt v....................... 626 United States, Vigorito v........................ 705 United States, Vinkemulder v.................... 666 United States, Weinberg v........................ 675 United States, Western Knitting Mills v.......... 639 United States, Whitaker v........................ 635 United States v. Whitbeck........................ 671 United States v. White Motor Co.................. 672 United States, Wiggins v......................... 657 United States, Wm. C. Atwater & Co. v............ 678 United States, Winchester Mfg. Co. v............. 628 United States, Wolfle v.......................... 617 United States, Yengo v.......................... 679 TABLE OF CASES REPORTED. xxxvii Page. United States, Zuckerkandel v................. 673 U.S. Casualty Co., Taylor v................... 639 U.S. District Court, Merriam v................ 707 U.S. ex ret. Arcata & Mad River R. Co. v. I.C.C.... 632 U.S. ex rel. Boric v. Marshall............ 623,709 U.S. ex rel. Steacy-Schmidt Mfg. Co., Globe Indemnity Co. v.................................... 618 U.S. Fidelity & G. Co., Aschenbrenner v....... 622 U.S. Fidelity & G. Co. v. Mississippi......... 678 U.S. Refractories Corp., Helvering v.............. 591 U.S. Trust Co. v. Anderson.................... 683 Utah Home Fire Ins. Co. v. Commissioner....... 679 Van Dyke v. Commissioner...................... 615 Vargas v. Chua................................ 662 Vermont v. New Hampshire........... 579, 589, 602, 605 Vesta Coal Co., Norton v...................... 613 Vigorito v. United States..................... 705 Vinkemulder v. United States.................. 666 Virginia, Southern Ry. Co. v.................. 190 Wabash Ry. Co. v. Conroy...................... 631 Wabash Ry. Co., Pokora v...................... 624 Wabash Ry. Co. v. St. Louis................... 668 Wald Transfer & Storage Co. v. Smith....... 596, 602 Walker v. Commissioner....................... 651 Walker, Connell v............................. 620 Wallace, Bartlett Frazier Co. v............. 654 Wallace v. Franz.............................. 699 Warner, Federal Land Bank v.................. 620 Warner, Helvering v........................... 688 Washington Ry. & Elec. Co., Chapman v......... 661 W. B. Foshay Co., Brill v..................... 643 Weatherford, Crump & Co. v. Bass.............. 648 W. E. Hedger, Inc., Cullen Fuel Co. v.......... 82 Weinberg v. United States..................... 675 Welch v. Helvering............................ Ill Wells v. Simons............................... 695 xxxviii TABLE OF CASES REPORTED. Page. Werth v. Fire Companies’ Adjustment Bureau..... 659 Western Knitting Mills v. United States........ 639 Western Loan & Securities Co., Ex parte........ 601 W. H. Hill Co. v. Helvering.................... 691 Whitaker v. Alameda County Home Inv. Co........ 640 Whitaker v. United States...................... 635 Whitbeck, United States v...................... 671 Whitcomb v. Burnet......................... 610,611 White, Crompton & Knowles Loom Works v......... 669 White Eagle Oil & Rfg. Co. v. Sedalia ex rel. Bauman......................................... 706 Whitehead, Cheves v............................ 704 Whitehead v. Helvering......................... 690 White Motor Co., United States v............... 672 Wichita Gas Co., State Corporation Comm’n v....561 Wiggins v. United States....................... 657 Wildermuth, Tropic-Aire v...................... 653 Willard Battery Co., Routzahn v................ 612 Wm. C. Atwater & Co. v. United States.......... 678 Williams, Ex parte............................. 589 Williams, Mobile & Ohio R. Co. v............... 655 Williams v. Union Central Life Ins. Co......... 613 Williard, Clark v.............................. 619 Williford v. Kansas City Sou. Ry. Co........... 666 Wilson, Mark v................................. 689 Winchester Mfg. Co. v. United States......... 628 Wisconsin, Rosenberg v......... 600 Wolf v. Bass Furniture & Carpet Co............. 665 Wolfle v. United States........................ 617 Woolworth (F. W.) Co., Schmeling v............. 605 Yarborough v. Yarborough....................... 202 Yarborough, Yarborough v...................... 202 Yengo v. United States......................... 679 Z. & F. Assets Realization Corp. v. Doerschuck.... 697 Zimmerman, Gibbes v............................ 326 Zuckerkandel v. United States.................. 673 Zurich General A. & L. Ins. Co. v. O’Keefe..... 630 TABLE OF CASES Cited in Opinions Page. Abie State Bank v. Bryan, 282 U.S. 765 304 Abilene & So. Ry. Co. v. I.C.C., 56 App.D.C. 40 142 Ada, The, 233 Fed. 325 122 Adams v. New York, 192 U.S. 585 46 Adams v. Storey, 1 Paine’s Rep. 79 427 Adams v. Tanner, 244 U.S. 590 196 Adkins v. Children’s Hospital, 261 U.S. 525 196 Aetna Life Ins. Co. v. Dunken, 266 U.S. 389 601 Alabama v. United States, 279 U.S. 229 593 Alabama v. United States, 282 U.S. 502 95 Alabama v. United States, 283 U.S. 776 82 Aiderman, In re, 157 N.C. 507 223 Alejandrino v. Quezon, 271 U.S. 528 585,599 Alexander v. Carter Oil Co., 53 F. (2d) 964 496 Allanwilde Transp. Corp. v. Vacuum Oil Co., 248 U.S. 377 123 Allen v. Allen, 105 N.Y. 628 223 Allen v. Brandeis, 29 F. (2d) 363 369 Alward v. Johnson, 282 U.S. 509 175 A. M. Bliss, The, Fed. Cas. No. 274 123 American Baseball Club v. Philadelphia, 290 U.S. 595 597 Page. American Candy Mfg. Co., In re, 256 Fed. 87 521 American Land Co. v. Zeiss, 219 U.S. 47 439 American Ry. Exp. Co. v. Royster Guano Co., 273 U.S. 274 172,598 American Refrigerator Transit Co. v. Hall, 174 U.S. 70 161,162 American Rolling Mill Co. v. Commissioner, 41 F. (2d) 314 116 American Steel & Wire Co. v. Speed, 192 U.S. 500 11 Amys v. Barton, [1912] 1 K.B. 40 Ancient Egyptian Order v. Michaux, 279 U.S. 737 160 Anderson v. Anderson, 74 W.Va. 124 212 Anderson v. Watt, 138 U.S. 694 211 Anglo - American Provision Co. v. Davis Provision Co., 191 U.S. 373 216 Anglo-Chilean Corp. v. Alabama, 288 U.S. 218 9 Antoni v. Greenhow, 107 U.S. 769 430 Appleby v. New York, 271 U.S. 364 167 Armour & Co. v. Fort Morgan S.S. Co., 270 U.S. 253 89 Asakura v. Seattle, 265 U.S. 332 294 Ash v. Prunier, 105 Fed. 722 105 Atchison, T. & S. F. Ry. Cd. v. Saxon, 284 U.S. 458 503 XXXIX TABLE OF CASES CITED. XL Page. Atchison, T. & S. F. Ry. Co. v. Toops, 281 U.S. 351 233,503 Atchison, T. & S. F. Ry. Co. v. United States, 284 U.S. 248 275,444 Atkin v. Kansas, 191 U.S. 207 597 Atlanta v. Stokes, 175 Ga. 201 357 Atlantic Cleaners & Dyers v. United States, 286 U.S. 427 427 Atlantic Coast Line R. Co. v. Goldsboro, 232 U.S. 548 436 Atlantic Coast Line R. Co. v. Standard Oil Co., 275 U.S. 257 11 Atlantic Nat. Bank v. Pratt, 95 Fla. 822 147 Atwater v. American Ex- change Bank, 152 Ill. 605 519 Ayers, In re, 123 U.S. 443 27,28 Backus v. Fort Street Depot Co., 169 U.S. 557 332 Bacon v. Illinois, 227 U.S 504 8,11 Bacon v. Rutland R. Co., 232 U.S. 134 569 Bain, Ex parte, 121 U.S. 1 453 Baker v. Lehigh Valley R. Co., 248 N.Y. 131 234 Baldwin v. Foster, 138 Mass. 449 221 Ballentyne v. Smith, 205 U.S. 285 446 Ballman v. Fagin, 200 U.S. 186 396 Baltimore & Ohio R. Co. v. I.C.C., 215 U.S. 216 594 Baltimore & Ohio R. Co. v. Joy, 173 U.S. 226 389 Baltimore & Pot. R. Co. v. Landrigan, 191 U.S. 461 233 Bandini v. Superior Court, 284 U.S. 8 601 Bank of Minden v. Clement, 256 U.S. 126 434 Bank of Washington v. Triplett & Neale, 1 Pet. 25 149 Barber Asphalt Co. v. Standard Asphalt Co., 275 U.S. 372 491 Barnes v. Lee, 128 Ore. 655 223 Page. Barnitz v. Beverly, 163 U.S. 118 433,466,470,481 Barrett v. Van Pelt, 268 U.S. 85 577,578 Bates v. Bodie, 245 U.S. 520 227 Bates v. Capital State Bank, 21 Ida. 141 65 Bauer v. Abrahams, 73 Colo. 509 218 Beaver Boards Cos. v. Imbrie & Co., 287 Fed. 158 152 Bedford v. Eastern Bldg. & L. Assn., 181 U.S. 227 431 Beer Co. v. Massachusetts, 97 U.S. 25 436 Beers v. Arkansas, 20 How. 527 429 Beers v. Haughton, 9 Pet. 329 433 Beezley v. Astoria, 126 Ore. 177 95 Beidler v. S.C. Tax Comm’n, 282 U.S. 1 160 Bein v. Heath, 6 How. 228 245 Belknap v. Schild, 161 U.S. 10 28 Bellencoutre, Re, 17 Cox C. C. 253 305 Benjamin Noble, The, 232 Fed. 382 88 Benson v. McMahon, 127 U.S. 457 291,317 Benson v. United States, 146 U.S. 325 374,375 Bernards Township v. Stebbins, 109 U.S. 341 188 Bernhard v. Rochester German Ins. Co., 79 Conn. 388 168 Bernheimer v. Converse, 206 U.S. 516 62,167,434 Bernina, The, 12 Pro. Div. 58 232 Bernstein v. Gross, 58 F. (2d) 154 305 Bernstein v. Jockey Club, 222 App. Div. 191 388 Berry v. State, 63 Ark. 382 101 Biddle v. Luvisch, 266 U.S. 173 594 Binford v. McLeaish, 284 U.S. 598 593 Bingham v. Bradley, 241 U.S. 511 292,301,305,316 TABLE OF CASES CITED. xli Page. Bird of Paradise, The, 5 Wall. 545 127 Birdsong v. Birdsong, 182 Ky. 58 221 Blackwell v. Finlay, 233 N.Y. 361 166 Blackwell Oil & Gas Co. v. Commissioner, 60 F. (2d) 257 116 Black & White Taxi Co. v. Brown & Yellow Taxi Co., 276 U.S. 518 188 Blatch v. Archer, 1 Cowper 63 109 Blitz v. United States, 153 U.S. 308 544 Block v. Hirsh, 256 U.S. 135 440,441,444,448,478 Bluefield Co. v. Pub. Serv. Comm’n, 262 U.S. 679 569 Blythe v. Ayres, 96 Cal. 532 211 Board of Trade v. Olsen, 262 U.S. 1 8 Bodkin v. Edwards, 255 U.S. 221 592 Boley v. Griswold, 20 Wall. 486 65 Bolles v. Outing Co., 175 U.S. 262 487 Booth v. Clark, 17 How. 322 61,62 Bort, In re, 25 Kan. 308 223 Boston & Maine R. Co. v. Armburg, 285 U.S. 234 595 Bowe v. Scott, 233 U.S. 658 328 Bowers v. American Surety Co., 30 F. (2d) 244 534 Bowling v. United States, 233 U.S. 528 34 Boyd v. United States, 116 U.S. 616 46,47 Bradford Elec. Light Co. v. Clapper, 286 U.S. 145 219 Bradley v. Lightcap, 195 U.S. 1 434,466 Bradley v. Missouri Pac. R. Co., 288 Fed. 484 234 Bradley v. Public Utilities Comm’n, 289 U.S. 92 596,602 Brandon v. Brandon, 154 Ga. 661 210 Page. Bronson v. Kinzie, 1 How. 311 431,432,433, 465, 466, 467, 474, 481 Brooks v. United States, 267 U.S. 432 544 Brooks-Scanlon Corp. v. United States, 265 U.S. 106 18 Brown v. Brown, 132 Ga. 712 207,208 Brown v. Chandler, Fed. Cas. No. 1998 263 Brown v. Houston, 114 U.S. 622 10 Brown v. Lake Superior R. Co., 134 U.S. 530 516 Brown v. Silverton, 97 Ore. 441 95 Brown v. United States, 113 U.S. 568 262 Brown v. West Hartlepool Steam Nav. Co., 112 Fed. 1018 122 Browning v. Hooper, 269 U.S. 396 198 Brownlow v. Schwartz, 261 U.S. 216 586,599 Bruce v. Tobin, 245 U.S. 18 627 Bryan v. Kennett, 113 U.S. 179 68 Budd v. New York, 143 U.S. 517 603 Buder, Ex parte, 271 U.S. 461 31 Buder v. Franz, 27 F. (2d) 101 22 Bullard v. Cisco, 48 F. (2d) 212 183 Burgess v. Equitable Ins. Co., 126 Mass. 70 353 Burgess v. Seligman, 107 U.S. 20 55 Burnet v. Whitehouse, 283 U.S. 148 371 Bumrite Coal Co. v. Riggs, 274 U.S. 208 515 Burns Baking Co. v. Bryan, 264 U.S. 504 573,575 Burt v. McKinstry, 4 Minn. 204 . 518 Burton v. United States, 196 U.S. 283 154 Butchers’ Union v. Crescent City Co., Ill U.S. 746 436 XLII TABLE OF CASES CITED. Page. Buttfield v. Stranahan, 192 U.S. 470 575 Byars v. United States, 273 U.S. 28 . 46 Cagill v. Woolridge, 67 Tenn. 580 63 Caldwell v. United States, 36 F. (2d) 738 488 Caledonia, The, 157 U.S. 124 88,345 Caledonian Coal Co. v. Baker, 196 U.S. 432 533 Calkins v. Calkins, 217 Ala. 378 223 Canal Co. v. Gordon, 6 Wall. 561 487 Caperton v. Bowyer, 14 Wall. 216 666 Capitol Transportation Co. v. Cambria Steel Co., 249 U.S. 334 87,88 Carib Prince, The, 170 U.S. 655 88,344 Carpenter v. Shaw, 280 U.S. 363 39 Carrington v. The Ann Pratt, 18 How. 63 247 Carson Petroleum Co. v. Vial, 279 U.S. 95 9,10,11 Carter v. United States, 49 F. (2d) 221 558,560 Carver v. United States, 160 U.S. 553; 164 U.S. 694 100 Cashin v. N. Y., N. H. & H. R. Co., 185 Mass. 543 105 Castillo v. McConnico, 168 U.S. 674 575,605 Catlin v. Wilcox Silver-Plate Co., 123 Ind. 477 219 Central of Georgia Ry. Co. v. Wright, 248 U.S. 525 431 Central Vermont Ry. v. White, 238 U.S. 507 232 Champlain Co. v. Brattle- boro, 260 U.S. 366 9,10,11,12 Charles River Bridge v. Warren Bridge, 11 Pet. 420 435,444 Charlton v. Kelly, 229 U.S. 447 295,298 Chastleton Corp. v. Sinclair, 264 U.S. 543 442 Chavkin, In re, 249 Fed. 342 108 Chesapeake & Ohio Ry. Co. v. Kuhn, 284 U.S. 44 504 Chesapeake & Ohio Ry. Co. v. McDonald, 214 U.S. 101 604 Chesapeake & Ohio Ry. Co. v. Thompson Mfg. Co., 270 U.S. 416 578 Chicago v. Chicago Rapid Transit Co., 284 U.S. 577 598 Chicago & Alton R. Co. v. Industrial Board, 274 Ill. 336 105 Chicago, B. & Q. R. Co. v. Nebraska, 170 U.S. 57 199,436 Chicago, B. & Q. R. Co. v. Williams, 205 U.S. 444 594 Chicago & E. I. Ry. Co. v. Divine, 39 F. (2d) 537 234 Chicago, M. & St. P. Ry. Co. v. Board of Comm’rs, 76 Mont. 305 194 Chicago, M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472 503 Chicago, M. & St. P. Ry. Co. v. Minnesota, 134 U.S. 418 195,569 Chicago, M., St. P. & P. Ry. Co. v. Tompkins, 176 U.S. 167 196 Chicago & N. W. Ry. Co. v. Chicago, 164 U.S. 454 328 Chicago & N. W. Ry. Co. v. Dey, 35 Fed. 866 574 Chicago, R. I. & P. Ry. Co. v. Fanning, 42 F. (2d) 799 232 Chicago, R. I. & P. Ry. Co. v. Sutton, 63 Fed. 394 236 Chicago, St. P. & K. C. Ry. Co. v. Chambers, 68 Fed. 148 236 Chicago Theological Seminary v. Illinois, 188 U.S. 662 356 Chittenden v. Brewster, 2 Wall. 191 487,520 Choate v. Trapp, 224 U.S. 665 39 Choctaw, O. & G. R. Co. v. Holloway, 114 Fed. 458 236 TABLE OF CASES CITED. xliii Page. Christian v. Atlantic & N. C. R. Co., 133 U.S. 233 28 Church v. Shelton, Fed. Cas. No. 2714 123 Cincinnati v. Hafer, 49 Oh. St. 60 69 Cincinnati v. Louisville & N. R. Co., 223 U.S. 390 435 City of Camden, The, 292 Fed. 93 88 Clairmont v. United States, 225 U.S. 551 364 Clark v. Barnard, 108 U.S. 436 24 Clark v. Killian, 103 U.S. 766 487 Clark v. Poor, 274 U.S. 554 173 Clark v. Titusville, 184 U.S. 329 448 Clark v. Williard, 94 Mont. 508 219 Clarke v. Clarke, 178 U.S. 186 217,218 Clarke v. White, 12 Pet. 178 247 Cleveland v. Chamberlain, 1 Black 419 600 Cleveland, C., C. & I. R. Co. v. Newell, 104 Ind. 264 105 Claudius v. Aguirre, 89 Cal. 501 65 Claus v. Chicago G. W. Ry. Co., 136 la. 7 394 Clay v. State, 52 Tex. Cr. 555 394 Coal Co. v. Blatchford, 11 Wall. 172 190 Coe v. Errol, 116 U.S. 517 9,10 Coffee v. Coffee, 101 Ga. 787 209 Cohan, In re, 41 F. (2d) 632 108, 111 Cohens v. Virginia, 6 Wheat. 264 26,434 Cohn v. Jones, 100 Fed. 639 305 Coldingham Parish Council v. Smith, [1918] 2 K.B. 90 211 Cole v. Cunningham, 133 U.S. 107 217,218,219 Collier v. Vaccaro, 51 F. (2d) 17 305 Collins v. Loisel, 259 U.S. 309 292,300,301,305,307,317 Colony Coal & C. Corp. v. Commissioner, 52 F. (2d) 923 115 Page. Columbus Ry. & Power Co. v. Columbus, 249 U.S. 399 270 Commercial Bank v. Armstrong, 148 U.S. 50 154 Commissioner v. People’s- Pittsburgh Trust Co., 60 F. (2d) 187 116 Commonwealth v. Griffith, 149 Ky. 405 101 Commonwealth v. Trefethen, 157 Mass. 180 103 Community Bldg. Co. v. Maryland Casualty Co., 8 F. (2d) 678 55 Conard v. Nicoll, 4 Pet. 291 247 Connecticut Mutual Life Ins. Co. v. Cushman, 108 U.S. 51 434 Consolidated Gas Co. v. New- ton, 267 Fed. 231 271 Continental Baking Co. v. Woodring, 286 U.S. 352 32, 171,174,175 Continental Tie & L. Co. v. United States, 286 U.S. 290 139,143 Converse v. Hamilton, 224 U.S. 243 62,63,219 Cook v. State, 90 Tex. Cr. 424 101 Coombes v. Getz, 285 U.S. 434 167 Coming v. Troy Iron & Nail Factory, 15 How. 451 487 Corning Glass Works v. Lucas, 59 App.D.C. 168 116 Cottle v. Johnson, 179 N.C. 426 105 Covell v. Heyman, 111 U.S. 176 64,66 Cowles v. Cowles, 203 App. Div. 405 213 Coyne v. Prouty, 289 U.S. 704 586,599 Craig v. Missouri, 4 Pet. 410 453 Craig v. Shea, 102 Neb. 575 221 Crain v. United States, 162 U.S. 625 544 Crane v. Hahlo, 258 U.S. 142 332 Crawford v. Branch Bank, 7 How. 279 434 XLIV TABLE OF CASES CITED. Page. Crawford v. Neal, 144 U.S. 585 188 Creswill v. Knights of Pyth- ias, 225 U.S. 246 160 Cripple Creek & C. S. R. Co. v. I.C.C, 56 App.D.C. 168 142 Crough v. New York Cent. R. Co., 260 N.Y. 227 234 Cruger v. Heyward, 2 De-saus. 94 222 Cuba R. Co. v. Crosby, 222 U.S. 473 389 Cummings v. National Bank, 101 U.S. 153 271 Curtis v. Miller, 269 Pa. 509 105 Curtis v. Whitney, 13 Wall. 68 434 Cusack Co. v. Chicago, 242 U.S. 526 585 Cutler v. Rae, 7 How. 729 127 Cunningham v. Macon & B. R. Co., 109 U.S. 446 28 Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282 8 Daniels v. Teamey, 102 U.S. 415 433 Dartmouth College v. Woodward, 4 Wheat. 518 429,454 Davidson v. Cornell, 132 N.Y. 228 105 Davis, The, 10 Wall. 15 28 Davis v. Elmira Savings Bank, 161 U.S. 275 148 Davis v. Gray, 16 Wall. 203 516 Davis v. Mills, 194 U.S. 451 389 Davis v. New York & N. E. R. Co., 143 Mass. 301 389 Davis v. Roper Lumber Co., 269 U.S. 158 578 Davis v. United States, 283 U.S. 859 627 Davis v. Virginia Ry. & Power Co., 229 Fed. 633 521 Dawn, The, Fed. Cas. No. 3666 263 Dayton-Goose Creek Ry. v. United States, 263 U.S. 456 74 DeHahn v. Hartley, 1786, 1 T.R. 343, aff’d 1787, 2 T.R. 186 352 Page. Delassus v. United States, 9 Pet. 117 68 Delaware, The, 161 U.S. 459 343 De Thomas v. Witherby, 61 Cal. 92 65 Detroit & Mackinac Ry. v. Michigan R.R. Comm’n, 235 U.S. 402 569 Deweese v. Reinhard, 165 U.S. 386 245 Diamond Match Co. v. Ontonagon, 188 U.S. 82 9 Dillingham v. Insurance Co., 120 Tenn. 302 69 Dillingham v. McLaughlin, 264 U.S. 370 603 Dixie Oil Co. v. United States, 24 F. (2d) 804 496 Doe v. Braden, 16 How. 635 302 Dodge v. Tulleys, 144 U.S. 451 190 Dodge v. Woolsey, 18 How. 331 431 Doherty v. Hill, 144 Mass. 465 109 Donnelly v. United States, 228 U.S. 243 364,365 Donovan v. Aetna Indem- nity Co., 10 Cal. App. 723 65 Doughty v. Engler, 112 Kan. 583 221 Douglas v. Federal Reserve Bank, 271 U.S. 489 146,153,154 Douglas v. Kentucky, 168 U.S. 488 436 Dred Scott v. Sandford, 19 How. 393 450 Dubroca y Paniagua, In re, 33 F. (2d) 181 292,305 Dudley v. Dudley, 151 la. 142 218 Duhne v. New Jersey, 251 U.S. 311 26 Dunfee, Matter of, 219 N.Y. 188 68,69 Dunlap v. Toledo, A. A. & G. Ry., 50 Mich. 470 68 Dupont Co. v. Vance, 19 How. 162 126 Durland v. United States, 161 U.S. 306 601 Earle & Stoddart v. Wilson Line, 287 U.S. 420 345 TABLE OF CASES CITED. XLV Page. Eastern Air Transport v. S.C. Tax Comm’n, 285 U.S. 147 588 East Tennessee, V. & G. R. Co. v. Southern Tel. Co., 125 U.S. 695 600 Eddy, The, 5 Wall. 481 127 Edelman v. Boeing Air Transport, 289 U.S. 249 588,596 Edleson v. Edleson, 179 Ky. 300 222 Edwards v. Kearzey, 96 U.S. 595 433,456,466,469,474 Edwards v. Lewis, 98 Fla. 956 147 Edwin I. Morrison, The, 153 U.S. 199 345 Effinger v. Kenney, 115 U.S. 566 434 Eggen v. United States, 58 F. (2d) 616 558 Elias v. Ramirez, 215 U.S. 398 292 Elizabeth, The, 2 Dods. 403 263 Elkton, The, 49 F. (2d) 700 348,350,351 Embree v. Kansas City Road Dist., 240 U.S. 242 198 Emilia S. de Perez, The, 22 F. (2d) 585 123 Emmanuel College v. Evans, 1 Rep. in Ch. 10, temp. Car. I 447 Empire & S. E. Ry. Co. v. I.C.C., 59 App.D.C. 391 142 Engel v. O’Malley, 219 U.S. 128 603 Epstein v. Steinfeld, 210 Fed. 236 111 Equitable Life Assur. Society v. Brown, 187 U.S. 308 595,597,604 Erie R. Co. v. Pub. Util. Comm’rs, 254 U.S. 394 198 Erreca v. Meyer, 142 Cal. 308 65 E r v i n g, Ex parte, 109 N.J.Eq. 294 223 Esteb v. Esteb, 138 Wash. 174 222 Eubank v. Richmond, 226 U.S. 137 196 Euclid v. Ambler Realty Co., 272 U.S. 365 585 Page. Eureka Pipe Line Co. v. Hallanan, 257 U.S. 265 8,9 Evansville Bank v. German-American Bank, 155 U.S. 556 149,150 Ewell v. Daggs, 108 U.S. 143 431 Exchange Nat. Bank v. Third Nat. Bank, 112 U.S. 276 146 Faber v. New York, 222 N.Y. 255 166,168 Fairbanks, Morse & Co. v. American V. & M. Co., 276 U.S. 305 491 Fairclough v. Swan Brewery, 81 L.J.P.C. 207 447 Fall v. Eastin, 215 U.S. 1 217 Fargo v. Michigan, 121 U.S. 230 9 Farmer’s Life Ins. Co. v. Stegink, 106 Kan. 730 446 Farmers Loan Co. v. Minnesota, 280 U.S. 204 68 Farmers & Mechanics Bank v. Smith, 6 Wheat. 131 431 Farmington v. Pillsbury, 114 U.S. 138 188 Farrington v. Tennessee, 95 U.S. 679 431 Federal Reserve Bank v. Malloy, 264 U.S. 160 147, 149, 150, 154, 155 Federal Trade Comm’n v. Pacific States Paper Assn., 273 U.S. 52 487 Felton v. United States, 96 U.S. 699 394,395 Fernandez v. Great Western Ins. Co., 48 N.Y. 57 353 Fertilizing Co. v. Hyde Park, 97 U.S. 659 436 Filene’s Sons Co. v. Weed, 245 U.S. 597 516 Finney v. Guy, 189 U.S. 335 216 Firestone v. Harvey, 174 Fed. 574 70 First Nat. Bank v. Hartford, 273 U.S. 548 160 First Union T. & S. Bank v. Consumers Co., 290 U.S. 585 599 Fisk v. Jefferson Police Jury, 116 U.S. 131 434 XLVI TABLE OF CASES CITED. Page. Page. Fiske v. Kansas, 274 U.S. 380 160 Fitts v. McGhee, 172 U.S. 516 27 Fitzgerald, The R. P., 212 Fed. 678 350 Flash, The, 1 Abb. Adm. 67 121 Fletcher v. Peck, 6 Cranch 87 429 Florida v. United States, 282 U.S. 194 73,75,78,79 Ford, In re, 14 F. (2d) 848 68 Forshaw v. Chabert, 1821, 3 Brod. & B. 158 352 Foscolo Mango & Co. v. Stag Line, Ltd., [1931] 2 K.B. 48 353 4885 Bags of Linseed, 1 Black 108 126,127 Francis Wright, The, 105 U.S. 381 354 Frank, In re, 107 Fed. 272 305 Franz v. Buder, 11 F. (2d) 854 22 Franz v. Franz, 15 F. (2d) 797 22 Freedman’s Savings & T. Co. v. Earle, 110 U.S. 710 520,521 Freeman, The, 18 How. 182 121 Freeman v. Howe, 24 How. 450 64,66 Frick v. Pennsylvania, 268 U.S. 473 161 Frohwerk v. United States, 249 U.S. 204 544 Fulton v. Fulton, 52 Oh. St. 229 222 Fults v. State, 83 Tex. Cr. 602 101 Funk v. United States, 290 U.S. 371 452 Gaddy v. Witt, 142 S.W. 926 69 Gaines v. Gaines, 169 Ga. 432 209,210 Galveston Wharf Co. v. Galveston, 260 U.S. 473 435 Gantly’s Lessee v. Ewing, 3 How. 707 432,465,468 Gardner v. Commercial Nat. Bank, 95 Ill. 298 518 Garrett v. Chesire, 69 N.C. 396 469 Garrett v. Garrett, 172 Ga. 812 208 Gasquet v. Fenner, 247 U.S. 16 217 General Investment Co. v. New York Central R. Co., 271 U.S. 228 142 General Oil Co. v. Crain, 209 U.S. 211 11 Geofroy v. Riggs, 133 U.S. 258 294 George v. St. Louis Cable & W. Ry. Co., 44 Fed. 117 521 Georgia v. Chattanooga, 264 U.S. 472 435 Georgia v. Jesup, 106 U.S. 458 28 Georgia Pub. Serv. Comm’n v. United States, 283 U.S. 765 73,78,82 Georgia Ry. & Power Co. v. Decatur, 262 U.S. 432 270 Gerard Trust Co. v. Ocean & L. Realty Co., 286 U.S. 523 600 Germania Rfg. Co. v. Auditor General, 184 Mich. 618; 245 U.S. 632 163 Giacomo, In re, 12 Blatch. 391 305 Gila Valley, G. & N. Ry. Co. v. Lyon, 203 U.S. 465 236 Gilbert v. Gilbert, 151 Ga. 520 209,210 Gilbert v. Haire, 43 Mich. 283 446 Gilfillan v. Union Canal Co., 109 U.S. 401 434 Gilman v. Perkins, 7 Fed. 887 64 Glaze v. Drayton, 1 Desaus. Eq. 109 464 Gleason v. Thaw, 236 U.S. 558 69 Glenn v. Doyal, 285 U.S. 526 605 Glenn v. Field Packing Co., 290 U.S. 177 602 Glucksman v. Henkel, 221 U.S. 508 305 Go-Bart Importing Co. v. United States, 282 U.S. 344 46 Godchaux v. Estopinal, 251 U.S. 179 604 TABLE OF CASES CITED. XLVII Page. Goldman, In re, 62 F. (2d) 421 111 Goodwin v. Goodwin, 158 App. Div. 171 218 Gorlitzer v. Wolffberg, 208 N.Y. 475 388 Gouled v. United States, 255 U.S. 298 46 Graff man v. Burgess, 117 U.S. 180 446 Graham v. Graham, 38 Colo. 453 214 Grand Trunk Ry. Co. v. Cummings, 106 U.S. 700 236 Grand Trunk Western Ry. Co. v. United States, 252 U.S. 112 143 Great Lakes Towing Co. v. Mill Transp. Co., 155 Fed. 11 88 Great Northern Ry. Co. v. Clara City, 246 U.S. 434 198 Great Northern Ry. Co. v. Minnesota, 238 U.S. 340 194 Great Northern Ry. Co. v. United States, 277 U.S. 172 139,142 Great Northern Ry. Co. v. United States, 287 U.S. 144 139 Great Western Mining Co. v. Harris, 198 U.S. 561 61,218 Green, In re, 134 U.S. 377 545 Green v. Biddle, 8 Wheat. 1 431 Green v. Watkins, 6 Wheat. 260 533 Greene v. United States, 154 Fed. 401 305,317 Greenock S.S. Co. v. Mari- time Ins. Co., [1903] 2 K.B. 657 346 Gregg Dyeing Co. v. Query, 286 U.S. 472 588 Griffin v. Griffin, 95 Ore. 78 223 Griffith v. Connecticut, 218 U.S. 563 603 Grin v. Shine, 187 U.S. 181 298, 300 Groce v. Field, 13 Ga. 24 210 Grossman v. Schenker, 206 N.Y. 466 88 Grover & Baker Machine Co. v. Radcliffe, 137 U.S. 287 215 Groves, In re, 109 Wash. 112 223 Page. Groves v. Slaughter, 15 Pet. 449 427 Guadeloupe, The, 92 Fed. 670 345 Gully v. Gully, 111 Tex. 233 222 Gunn v. Barry, 15 Wall. 610 433, 465 Gunning v. Cooley, 281 U.S. 90 553,561 Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273 24,26 Gwinn v. Commissioner, 287 U.S. 224 58 * Hadacheck v. Los Angeles, 239 U.S. 394 585 Haddock v. Haddock, 201 U.S. 562 216 Hagood v. Southern, 117 U.S. 52 27 Hall v. Hall, 141 Ga. 361 208 Hallowell v. United States, 209 U.S. 1 594 Hamilton v. Kentucky Distilleries Co., 251 U.S. 146 426 Hampton & Co. v. United States, 276 U.S. 394 595 Hannis Distilling Co. v. Baltimore, 216 U.S. 285 32 Hanriot v. Sherwood, 82 Va. 1 384 Hans v. Louisiana, 134 U.S. 1 26 Hardware Dealers Mut. Fire Ins. Co. v. Glidden Co., 284 U.S. 151 332,595 Hardy, The, Fed. Cas. No. 6056 123 Harkins v. Brundage,- 276 U.S. 36 519 Harper v. Tipple, 21 Ariz. 41 222 Harriman, The, 9 Wall. 161 123 Harrington v. Holler, 111 U.S. 796 604 Harris v. Lucas, 48 F. (2d) 187 • 116 Harrisonville v. Dickey Clay Co., 289 U.S. 334 271 Hartford & N.Y. Transp. Co. v. Rogers & Hubbard Co., 47 F. (2d) 189 350 Hartman v. Greenhow, 102 U.S. 672 431 Hartman v. Henry, 280 Mo. 478 223 XLVIII TABLE OF OASES CITED. Page. Page. Hawkins v. Barney’s Lessee, 5 Pet. 457 434 Hayes v. Missouri, 120 U.S. 68 603 Heardsley v. Hartford, 50 Conn. 529 385 Hebert v. Louisiana, 272 U.S. 312 605 Heim v. McCall, 239 U.S. 175 597 Heisler v. Thomas Colliery Co., 260 U.S. 245 598 Hendrick v. Maryland, 235 U.S. 610 32 Hendrix v. United States, 219 U.S. 79 373,386 Henkel’s Estate, 13 Pa. Super. Ct. 337 222 Henley v. Myers, 215 U.S. 373 167,168,434 Henshaw v. Miller, 17 How. 212 388,533 Hess v. Pawloski, 274 U.S-352 32 Hiawasee River Power Co. v. Carolina-Tennessee Co., 252 U.S. 341 666 Hill v. Merchants’ Ins. Co., 134 U.S. 515 434 Hill v. Pioneer Lumber Co., 113 N.C. 173 519 Hill v. Printup, 48 Ga. 452 210 Hill v. Wallace, 259 U.S. 44 8 Hilliard v. Anderson, 197 Ill. 549 222 Holden v. Hardy, 169 U.S. 366 383 Holmes v. Jennison, 14 Pet. 540 287 Home Insurance Co. v. Dick, 281 U.S. 397 212,219,224 Honolulu R. T. & L. Co. v. Hawaii, 211 U.S. 282 272 Hood v. McGehee, 237 U.S. 611 217,225 Hooten v. Hooten, 168 Ga. 86 208,221 Hopkins v. Lancaster, 254 Fed. 190 63 Homing v. District of Columbia, 254 U.S. 135 394 Houston v. Moore, 3 Wheat. 433 627 Houston v. Southwestern Bell Tel. Co., 259 U.S. 318 491 Hovey v. McDonald, 109 U.S. 150 271 Howard v. Bugbee, 24 How. 461 432,433,465,468,481 Howell v. Baker, 4 Johns. Ch. 118 446 Hoyt v. Sprague, 103 U.S. 613 218 Hubbard v. Tod, 171 U.S. 474 . 487 Hubinger v. Commissioner, 36 F. (2d) 724 116 Hudson Canal Co. v. Penna. Coal Co., 8 Wall. 276 88 Hudson Water Co. v. McCarter, 209 U.S. 349 437 Hughes Bros. Co. v. Minnesota, 272 U.S. 469 9,10 Huke v. Huke, 44 Mo. App. 308 221 Hulburt v. Chicago, 202 U.S. 275 666 Humphreys v. Bush, 118 Ga. 628 208 Humphreys v. Hopkins, 81 Cal. 551 63 Hunt v. Hunt, 94 Ga. 257 211 Hunter v. State, 10 Okla. Cr. 119 222 Huntington v. Attrill, 146 U.S. 657 216 Huntley, In re, 85 Fed. 889 110 Hurley v. Kincaid, 285 U.S. 95 16 Hurn v. Oursler, 289 U.S. 238 . . 178 Hurtado v. California, 110 U.S. 516 382 Husty v. United States, 282 U.S. 694 601,627 Hyde v. Wabash, St. L. & P. Ry. Co., 61 la. 441 389 Hygrade Provision Co. v. Sherman, 266 U.S. 497 601 Ice King, The, 261 Fed. 897 88,89 Ilfeld (Louis) Co. v. Southern Pacific Co., 48 F. (2d) 1056 577 Indianapolis & St. L. R. Co. v. Horst, 93 U.S. 291 232 TABLE OF CASES CITED. XLIX Page. Indien, The, 1933 A.M.C. 1342 350 International Navigation Co. v. Farr & Bailey Mfg. Co., 181 U.S. 218 344 International Paper Co. v. The Gracie D. Chambers, 248 U.S. 387 123 Interstate Commerce Comm’n v. Humboldt S.S. Co., 224 U.S. 474 142 Interstate Commerce Comm’n v. Louisville & N. R. Co, 227 U.S. 88 195,198 Interstate Commerce Comm’n v. U.S. ex rel. Arcata & M. R. R. Co, 62 App.D.C. 92 142 Interstate Transit, Inc. v. Lindsey, 283 U.S. 183 173 Iowa Central Ry. Co. v. Iowa, 160 U.S. 389 332 Irrawaddy, The, 171 U.S. 187 88,343 Irving v. Ford, 183 Mass. 448 211 Irwin v. Wright, 258 U.S. 219 533 Israel v. Moore & McCormack Co, 295 Fed. 919 124 Jackson v. Lamphire, 3 Pet. 280 434 Jackson v. Ludeling, 21 Wall. 616 519 Jackson v. Southern Flour & Grain Co, 146 Ga. 453 211 Jackson v. State, 1 Ga. App. 723 207 James v. Railroad Co, 6 Wall. 752 519 Jameson v. Tully, 178 Cal. 380 105 Jarrolt v. Moberly, 103 U.S. 580 453 Jason, The, 225 U.S. 32 341 Jay Wai Nam v. Anglo- American Oil Co, 202 Fed. 822 345 Jefferson Branch Bank v. Skelly, 1 Black 436 167,431 Jenkins v. Purcell, 29 App. D.C. 209 63 15459 °—34--------iv Page. Jett Bros. Co. v. Carrollton, 252 U.S. 1 586 Jewell v. Knight, 123 U.S. 426 594 Jin Fuey Moy v. United States/254 U.S. 189 374, 380,386 John v. Paullin, 231 U.S. 583 604 John Francis, The, 184 Fed. 746 122 Johnson v. Johnson, 131 Ga. 606 208,209 Johnson v. Keith, 117 U.S. 199 627 Johnson v. United States, 283 Fed. 954 37 Johnston v. Straus, 26 Fed. 57 520 Johnston’s Estate, 264 Pa. 71 371 Jones v. Commissioner, 38 F. (2d) 550 115 Jones v. Meehan, 175 U.S. 1 39 Jones v. Montague, 194 U.S. 147 585 Jordan v. Tashiro, 278 U.S. 123 294 Jose Ferreira dos Santos, 2 Brock. 493 287 Joseph Thorley, Ltd. v. Orchis S.S. Co, [1907] 1 K.B. 660 353 Joyce v. Auten, 179 U.S. 591 156 Kansas v. Wellman, 102 Kan. 503 225 Kansas City So. Ry. Co. v. Albers Commission Co, 223 U.S. 573 160 Kansas City Terminal Ry. Co. v. Central Union Trust Co, 271 U.S. 445 516,526 Keating v. Public National Bank, 284 U.S. 587 592 Keeney v. New York, 222 U.S. 525 603 Kell v. Kell, 179 la. 647 210 Keller v. Potomac Elec. Power Co, 261 U.S. 428 272 Kelley v. Rhoads, 188 U.S. 1 9,10 L TABLE OF CASES CITED. Page. Kelly v. Griffin, 241 U.S. 6 286, 299, 301, 305, 306, 308, 316, 317 322 Kennedy, Matter of, 167 N.Y. 163 105 Kenny v. Supreme Lodge, 252 U.S. 411 216 Kentucky v. United States, 3 F.Supp. 778 82 Ketchum v. Edwards, 153 N.Y. 534 110 Ketelsen v. Stilz, 184 Ind. 702 383 Kidd v. McCormick, 83 N.Y. 391 54,56 Kinkead v. United States, 150 U.S. 483 295 Kirby v. Tallmadge, 160 U.S. 379 109 Kirsner v. Taliaferro, 202 Fed. 51 111 Kitchen v. Raybum, 19 Wall. 254 247 Klein v. Board of Supervisors, 282 U.S. 19 603 Knapp v. Railroad Co., 20 Wall. 117 190 Kneeland v. American Loan Co., 136 U.S. 89 522 Knights of Pythias v. Meyer, 265 U.S. 30 172,598 Knowlton v. Moore, 178 U.S. 41 453 Knox v. McElligott, 258 U.S. 546 58 Kobusch v. Hand, 156 Fed. 660 70 Komhauser v. United States, 276 U.S. 145 114 Krauss Bros. Co. v. Mellon, 276 U.S. 386 490 Krohn v. The Julia, 37 Fed. 369 123 Kryger v. Wilson, 242 U.S. 171 224 Lady Durham, The, 3 Hag. Adm. 196 263 Lake County v. Dudley, 173 U.S. 243 188 Lake County v. Rollins, 130 U.S. 662 453 Lake Eckhart, The, 31 F. (2d) 804 123 Page. Landram v. Jordan, 203 U.S. 56 487 Langford v. Barnard, Tot-hill, 134, temp. Eliz. 447 Langnes v. Green, 282 U.S. 531 269,487 La Prade, Ex parte, 289 U.S. 444 593 Larrabee’s Case, 120 Me. 242 105 Laumeier v. Laumeier, 308 Mo. 201 212,223 Laumeier v. Laumeier, 242 N.Y. 501 223 Lavine v. California, 286 U.S. 528 601 Lawrence v. Minturn, 17 How. 100 88 Lawrence v. State Tax Comm’n, 286 U.S. 276 595 Lawton v. Steele, 152 U.S. 133 196 Leach v. California, 287 U.S. 579 601 Leadville Coal Co. v. Mc- Creery, 141 U.S. 475 516 League v. Texas, 184 U.S. 156 167,168 Leeds & Catlin Co. v. Victor Co., 213 U.S. 301 246 Lehigh Valley R. Co. v. Board of Comm’rs, 278 U.S. 24 198 Lemke v. Farmers Grain Co., 258 U.S. 50 8 Levering & Garrigues Co. v. Morrin, 289 U.S. 103 . 32, 595,598 Levy v. Superior Court, 167 U.S. 175 328 Levy & Co., In re, 142 Fed. 442 108 Levy (Edgar A.) Leasing Co. v. Siegel, 258 U.S. 242 440, 441,478 Libby v. Hopkins, 104 U.S. 303 146 Liggett & Myers Co. v. United States, 274 U.S. 215 18 Lincoln v. Claflin, 7 Wall. 132 490 TABLE OF CASES CITED. LI Page. Page. Lion Bldg. & Surety Co. v. Karatz, 262 U.S. 640 515 Little v. Hackett, 116 U.S. 366 232 Little v. Zuntz, 2 Ala. 256 446 Live Oak Water Users Assn. v. Railroad Comm’n, 269 U.S. 354 600,604 Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U.S. 397 343 Lloyd v. Commissioner, 55 F. (2d) 842 116 Locke v. United States, 7 Cranch 339 46,47 Logan v. United States, 144 U.S. 263 . 373,375 Long Island Water Co. v. Brooklyn, 166 U.S. 685 435 Looney v. Metropolitan R. Co., 200 U.S. 480 233 Loudon v. Taxing District, 104 U.S. 771 487 Louis Dreyfus & Co. v. Paterson Steamships, 67 F. (2d) 331 350 Louisiana v. Jumel, 107 U.S. 711 27 Louisiana v. New Orleans, 102 U.S. 203 434,483 Louisiana v. Police Jury, 111 U.S. 716 432 Louisiana v. United States, 284 U.S. 125 75 Louisiana Pub. Serv. Comm’n v. Texas & N. O. R. Co., 284 U.S. 125 82 Louisiana Ry. & Nav. Co. v. Behrman, 235 U.S. 164 167 Louisville Cement Co. v. I.C.C., 246 U.S. 638 142 Louisville & N. R. Co. v. Garrett, 231 U.S. 298 32,575 Louisville .Nat. Banking Co., In re, 158 Fed. 403 68 Louisville Trust Co. v. Louis-ville, N. A. & C. Ry. Co., 174 U.S. 674 516 Love v. Griffith, 266 U.S. 32 600 Lower Vein Co. v. Industrial Board, 255 U.S. 144 605 Loyal, The, 204 Fed. 930 88 Lucas v. Ox Fibre Brush Co., 281 U.S. 115 116 Luckenbach v. McCahan Sugar Rfg. Co., 248 U.S. 139 87 Lynch v- Commonwealth, 131 Va. 762 394 Lynde v. Lynde, 181 U.S. 183 226 Lyon v. Russell, 41 App.D.C. 554 63 MacDonald v. MacDonald, 8 B. & M. (2d Series) 830 211 Maddox v. Patterson, 80 Ga. 719 208 Madera Sugar Pine Co. v. Industrial Comm’n, 262 U.S. 499 605 Magen Co., In re, 10 F. (2d) 91 108, 111 Magoun v. Illinois Trust & S. Bank, 170 U.S. 283 448,603 Maguire v. Trefry, 253 U.S. 12 603 Maine v. Maryland Casualty Co., 172 Wis. 350 105 Malcolm Baxter, Jr., The, 277 U.S. 323 353,354 Manigault v. Springs, 199 U.S. 473 437 Manitoba, The, 104 Fed. 145 350 Manufacturers Ry. Co. v. United States, 246 U.S. 457 80 Marcus Brown Co. v. Feldman, 256 U.S. 170 440, 441,478 Maria Martin, The, 12 Wall. 31 487 Marine Bank v. Fulton Bank, 2 Wall. 252 154 Marks v. Cowdin, 225 N.Y. 138 109 Marks v. Marks, 22 S.D. 453 210 Marshall v. Glanvill, [1917] .2 K.B. 87 475 Martin v. Guilford County, 201 N.C. 63 357 Martin v. Hunter’s Lessee, 1 Wheat. 304 216 Martin v. Wabash R. Co., 142 Fed. 650 533 LU TABLE OF OASES CITED. Page. Martin’s Administrator v- B. & 0. R. Co., 151 US. 673 388, 389 Marye v. B. & 0. R. Co., 127 U.S. 117 161,162 Maryland Insurance Co. v. Woods, 6 Cranch 29 487 Maschauer v. Downs, 289 Fed. 540 221 Mason v. Haile, 12 Wheat. 370 433 Mason v. United States, 260 U.S. 545 304 Massasoit, The, Fed. Cas. No. 9260 263 Matson Navigation Co. v. United States, 284 U.S. 352 122 Mattox v. United States, 146 U.S. 140 100 Maul v. United States, 274 U.S. 501 46 Maxwell v. Dow, 176 U.S. 581 453 Maynard v. Hill, 125 U.S. 190 216,429 McClellan v. Carland, 217 U.S. 268 23 McCloskey v. St. Louis Union Trust Co., 202 Mo. App. 28 222 McCracken v. Hayward, 2 How. 608 43'2,465,468 McCulloch v. Maryland, 4 Wheat. 316 113,443 McDonald v. Oregon Navigation Co., 233 U.S. 665 605 McDowell v. Gould, 166 Ga. 670 211 McElmoyle v. Cohen, 13 Pet. 312 214,215,218 McFadden v. Blue Star Line, [1905] 1 K.B. 697 345 McGahey v. Virginia, 135 U.S. 662 431 McGilvra v. Ross, 215 U.S. 70 32 McIntosh v. Aubrey, 185 U.S. 122 356 McWilliams v. Kinney, 180 Ark. 836 222 Means v. Dowd, 128 U.S. 273 518 Page. Mechanics Bank v. Burnet, 33 N.J.Eq. 486 519 Mechanics Trust Co. v. Fid. & Cas. Co., 304 Pa. 526 54 Meischke-Smith v. Wardell, 286 Fed. 785 496 Memphis v. United States, 97 U.S. 293 434 Memphis Consol. Gas & Elec. Co. v. Creighton, 183 Fed. 552 236 Merklen v. Johnson & Higgins, 3 F.Supp. 897 350 Messenger v. Anderson, 225 U.S. 436 55 Metcalf v. Barker, 187 U.S. 165 520 Metcalf v. Moses, 35 App. Div. 596 519,520 Metropolis Bank v. New England Bank, 1 How. 234 151,156 Metropolitan Ry. Receivership, Re, 208 U.S. 90 516 Metropolitan Water Board v. Dick, Kerr & Co., [1918] A.C. 119 477 Metzger, In re, 17 Fed. Cas. 232 291,301,305 Meuller v. Illinois, 289 U.S. 711 601 Miami v. First Nat. Bank, 58 F. (2d) 561 147 Michaels v. Flach, 197 App. Div. 478 222 Michigan v. Michigan Trust Co., 286 U.S. 334 516 Michigan Comm’n v. Duke, 266 U.S. 570 171 Mihalcoe v. Holub, 130 Va. 425 221 Miller v. Cornwall R. Co., 168 U.S. 131 328 Miller v. Robertson, 266 U.S. 243 169 Miller v. Union Pac. R. Co., 290 U.S. 227 324 Miller & Harbaugh, In re, 54 F. (2d) 612 110,111 Milligan, Ex parte, 4 Wall. 2 426,449 Mills v. Green, 159 U.S. 651 585, 600 TABLE OF CASES CITED. LIII Page. Milner v. Gatlin, 139 Ga. 109 223 Milwaukee Bridge, The, 26 F. (2d) 327 345 Milwaukee & Minnesota R. Co. v. Soutter, 2 Wall. 510 515 Minnesota v. Hitchcock, 185 US. 373 39 Minnesota Rate Cases, 230 US. 352 9,179 Missouri v. Chicago, B. & Q. R. Co., 241 US. 533 569 Missouri v. Kansas Gas Co., 265 US. 298 563 Missouri v. Lewis, 101 US. 22 603 Missouri & Ark. Co. v. Se- bastian Co., 249 US. 170 169 Missouri Pacific R. Co. v. Porter, 273 US. 341 577 Mobile & Ohio R. Co. v. Tennessee, 153 US. 486 167 Montana v. United States, 2 FSupp. 448 82 Morley v. Lake Shore & M. S. Ry. Co., 146 US. 162 169, 429 Morris v. Duby, 274 U.S. 135 173 Moscow v. Marshall, 271 Mass. 302 222 Mosher v. Phoenix, 287 US. 29 32 Motter v. Derby Oil Co., 16 F. (2d) 717 , 496 Mountain Timber Co. v. Washington, 243 U.S. 219 605 Mount Pleasant v. Beckwith, 100 US. 514 487 Mugler v. Kansas, 123 U.S. 623 436 Muller, In re, 17 Fed. Cas.. 975 305 Munroe v. Raphael, 288 US. 485 516 Murphy v. Utter, 186 US. 95 533 Murray v. Charleston, 96 US. 432 431 Muskegon, The, 10 F. (2d) 817 122 Mutual Life Ins. Co. v. Hill-mon, 145 US. 285 104,105 Page. Mutual Life Ins. Co. v. Marsh, 185 Ark. 333 201 Mutual Loan Co. v. Martell, 222 US. 225 603 Myers v. Federal Reserve Bank, 101 Fla. 407 147 Napa Valley Co. v. Railroad Comm’n, 251 U.S. 366 569 Nashville, C. & St. L. Ry. Co. v. Tennessee, 262 US. 318 69,75 Nashville, C. & St. L. Ry. Co. v. Wallace, 288 US. 249 12,588 National Bank v. Insurance Co., 104 US. 54 146 National Surety Co. v. Cobb, 66 F. (2d) 323 219 National Surety Co. v. Co-riell, 289 US. 426 516,522,525 Needham v. Grand Trunk Ry. Co., 38 Vt. 294 389 Nelson v. Nygren, 259 N.Y. 71 234 Newburyport Water Co. v. Newburyport, 193 U.S. 561 598 New England Divisions Case, 261 US. 184 74,75,78 New First Nat. Bank. v. Weiser, 30 Ida. 15 94 New Hampshire, The, 21 Fed. 924 123 New Jersey Tel. Co. v. Tax Board, 280 US. 338 9 Newman v. Gates, 204 US. 89 604 New Orleans v. Houston, 119 US. 265 436 New Orleans C. & L. R. Co. v. New Orleans, 157 US. 219 434 New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650 435 New Orleans Mail Co. v. Flanders, 12 Wall. 130 487 New Orleans & N. E. R. Co. v. Harris, 247 US. 367 504 Newton v. Consolidated Gas Co., 258 US. 165 271,272,491 New York, Ex parte, 256 US. 490 26,28 LIV TABLE OF CASES CITED. Page. New York v. Coe Mfg. Co., 162 Atl. 872 216 New York v. United States, 257 U.S. 591 75 New York Central & H. R. R. Co. v. Miller, 202 U.S. 584 161 New York Central R. Co. v. White, 243 U.S. 188 605 New York Life Ins. Co. v. Head, 234 US. 149 219 Nicolay v United States, 51 F. (2d) 170 560 Nielsen v. Johnson, 279 U.S. 47 295 Noakes v. Rice, (1902) A.C. 24 447 Northern Pacific Ry. Co., Ex parte, 280 U.S. 142 31 Northern Pacific Ry. Cb. v. Boyd, 228 U.S. 482 519 Northern Pacific Ry. Co. v. Freeman, 174 U.S. 379 231 Northern Pacific Ry. Co. v. North Dakota, 236 U.S. 585 160 Northwestern Laundry Co. v. Des Moines, 239 U.S. 486 603 Norwood v. Baker, 172 U.S. 269 271,272 Oceano, The, 148 Fed. 131 124 O’Donoghue v. United States, 289 U.S. 516 272 Offield v. New York, N. H. & H. R. Co, 203 U.S. 372 435 Ogden v. Saunders, 12 Wheat. 213 428, 431, 444, 463 O’Gorman & Young v. Hartford Ins. Co, 282 U.S. 251 595 Ohio v. Akron Park Dist, 281 U.S. 74 603 Ohio v. Sanner, 81 Oh. St. 393 225 Ohio Oil Co. v. Conway, 281 U.S. 146 . 448 Ohio Public Service Co. v. Fritz, 274 U.S. 12 431 Ohio Valley Co. v. Ben Avon Borough, 253 U.S. 287 569 Old Colony R. Co. v. Commissioner, 284 U.S. 552 114 Page. Olmsted v. Olmsted, 216 U.S. 386 217 Ommang, In re Estate of, 183 Minn. 92 218 Omnia Commercial Co. v. United States, 261 U.S. 502 95,476 105 West 55th St. v. Commissioner, 42 F. (2d) 849 116 Opinion of the Justices, 251 Mass. 569 . 32 Opinion of the Justices, 81 N.H. 566 32 Oregon, The, 5 Fed. 666 121,122 Oregon Ry. & Nav. Co. v. Fairchild, 224 U.S. 510 194 Oriel v. Russell, 278 U.S. 358 109 Orient Ins. Co. v. Adams, 123 U.S. 67 350 Orr v. Ahem, 107 Conn. 174 388 Osaka Shosen Kaisha v. Pacific Export Lumber Co, 260 U.S. 490 121,126 Oshkosh Waterworks Co. v. Oshkosh, 187 U.S. 437 434 Pace v. Bergquist, 173 Ga. 112 208 Pacific Co. v. Johnson, 285 U.S. 480 601 Pacific Tel. & Tel. Co. v. Hoffman, 208 Fed. 221 236 Packard v. Banton, 264 U.S. 140 603 Page v. Arkansas Natural Gas Corp, 286 U.S. 269 592 Palmer v. Ohio, 248 U.S. 32 26 Palmer v. Palmer, 265 Mass. 242 216 Panama, The, Fed. Cas. No. 10703 123 Patsone v. Pennsylvania, 232 U.S. 138 595 Patton v. United States, 281 U.S. 276 381,394 Pawhuska v. Pawhuska Oil Co, 250 U.S. 394 598 Payne v. Jordan, 36 Ga. App. 787 t 357 Pendleton v. Benner Line, 246 U.S. 353 87,88 Penniman’s Case, 103 U.S. 714 433 TABLE OF CASES CITED. lv Page. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 479 Pennsylvania Hospital v. Philadelphia, 245 U.S. 20 435,595 People v. Jewell, 138 Mich. 620 394 People v. La Fetra, 230 N.Y. 429 441 People v. Miller, 225 Ill. App. 150 222 People v. Randolph, 2 Park. Cr. Rep. 174 385 People v. Sarzano, 212 N.Y. 231 100 People v. Zackowitz, 254 N.Y. 192 103 Peoples Gas Co. v. Pub. Serv. Comm’n, 270 U.S. 550 564 Peoples National Bank v. Marye, 191 U.S. 272 271 Peoria Cordage Co. v. Industrial Board, 284 Ill. 90 105 Peoria & P. U. Ry. Co. v. United States, 263 U.S. 528 487 Pettit v. Walshe, 194 U.S. 205 305 Phelps v. United States, 274 U.S. 341 17,18 Philadelphia & S. M. S.S. Co. v. Pennsylvania, 122 U.S. 326 9 Phoenix Bank v. Risley, 111 U.S. 125 154 Pierce v. Pierce, 58 Wash. 622 218 Pillsbury Flour Mills Co. v. Interlake S.S. Co., 40 F. (2d) 439 122 Piot, Ex parte, 15 Cox C.C. 208 305,317 Piqua Bank v. Knoop, 16 How. 369 431 Pirie v. Chicago T. & T. Co., 182 U.S. 438 68 Pittsburgh & So. Coal Co. v. Bates, 156 U.S. 577 11 Planters’ Bank v. Sharp, 6 How. 301 432 Planters Bank v. Union Bank, 16 Wall. 483 154 Page. Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531 575 Pocomoke Guano Co. v. Eastern Transp. Co., 285 Fed. 7 88 Pollard, Ex parte, 40 Ala. 77 468 Pond v. Cooke, 45 Conn. 126 63 Poresky, Ex parte, 290 U.S. 30 595,598 Port Adelaide, The, 59 Fed. 174 123 Porter v. Davidson, 62 Fed. 626 66 Portland Ry. Co. v. Oregon R.R. Comm’n, 229 U.S. 397 601 Potter v. United States, 155 U.S. 438 394 Powell v. United States, 206 Fed. 400 305 Prager v. N.J. Fidelity & Plate Glass Ins. Co., 245 N.Y. 1 166 Prela v. Hubshman, 278 U.S. 358 111 Prentis v. Atlantic Coast Line, 211 U.S. 210 569 Pritchard v. Norton, 106 U.S. 124 68,332 Producers Transp. Co. v. Railroad Comm’n, 251 U.S. 228 438 Prout v. Starr, 188 U.S. 537 26 Public Util. Comm’n v. Attleboro Co., 273 U.S. 83 . 564 Pullman Co. v. Pennsylvania, 141 U.S. 18 161 Pullman Co. v. Richardson, 261 U.S. 330 9 Purdy v. Massey, 306 Pa. 288 53 Pure Oil Co. v. Minnesota, 248 U.S. 158 601 Pusey & Jones Co. v. Hanssen, 261 U.S. 491 515,519 Queen Ins. Co. v. Globe Ins. Co., 263 U.S. 487 350 Queen Marine Ins. Co. v. Commercial Bank, 1870, 1 L.R. 3 P.C. .234 353 Quercia v. United States, 289 U.S. 466 394 LVI TABLE OF CASES CITED. Page. Quincy, M. & P. Ry. Co. v. Humphreys, 145 U.S. 82 516 Quinlan v. Pew, 56 Fed. Ill 88 Quong Ham Wah Co. v. In- dustrial Accident Comm’n, 255 U.S. 445 598 Quong Wing v. Kirkendall, 223 U.S. 59 448 Radice v. New York, 264 U.S. 292 603 Railroad Comm’n v. MacMillan, 287 U.S. 576 585,599 Railroad Co. v. Gladmon, 15 Wall. 401 232 Railroad Co. v. Hecht, 95 U.S. 168 434 Railroad Co. v. Houston, 95 U.S. 697 231 Rast v. Van Deman & Lewis Co., 240 U.S. 342 438 Rawlings v. Rawlings, 121 Miss. 140 221 Reagan v. Farmers Loan & Trust Co., 154 U.S. 362 272 Real Estate L. Title & T. Co. v. Springfield, 287 U.S. 577 600 Rebecca, The, 1 Ware 187 121 Red “C” Oil Co. v. North Carolina, 222 U.S. 380 575 Red River Valley Bank v. Craig, 181 U.S. 548 434 Regina v. Peel, 2 F. & F. 21 100 Reinman v. Little Rock, 237 U.S. 171 585 Reno Smelting Works v. Stevenson, 20 Nev. 269 385 Republic, The, 61 Fed. 109 88 Rex v. Perry, [1909] 2 K.B. 697 100 Reynes v. Dumont, 130 U.S. 354 156 Rhode Island v. Massachusetts, 12 Pet. 657 453 Rich v. Lambert, 12 How. 347 125 Riehle v. Margolies, 279 U.S. 218 516 River Meander, The, 209 Fed. 931 ‘ 350 Robbins v. Taxing District, 120 US. 489 9 Page. Robertson v. Staed, 135 Mo. 135 63 Roby v. Newton, 121 Ga. 679 394 Roe v. Kansas, 278 U.S. 191 595, 597,604 Rogers v. Daven, 298 Pa. 416 223 Rooker v. Fidelity Trust Co., 251 U.S. 114 604 Roosa v. Loan Co., 132 Mass. 439 105 Roscarrick v. Barton, 1 Cas. in C. 217 447 Rosen v. United States, 245 U.S. 467 374,377 Rosenberg Bros. & Co. v. Atlantic Transport Co., 25 F. (2d) 739 350 Ross, In re, 140 U.S. 453 294,295 Royal Indemnity Co. v. Cooper, 26 F. (2d) 585 68,69 Rucker v. Merck, 172 Ga. 793 357 Runkle v. United States, 42 F. (2d) 804 554 Sagamore, The, 300 Fed. 701 346 Sage v. Central R. Co., 99 U.S. 334 516 St. Joseph, The, Fed. Cas. No. 12230 123 St. Louis, I. M. & S. Ry. Co. v. Batesville & W. Tel. Co., 80 Ark. 499 394 St. Louis, I. M. & S. Ry. Co. v. Taylor, 210 U.S. 281 575 St. Louis Poster Advertising Co. v. St. Louis, 249 U.S. 269 438 St. Louis S. W. Ry. Co. v. Arkansas, 235 U.S. 350 172 Samet v. Farmers & M. Nat. Bank, 247 Fed. 669 68 Sanders’ Adm’x v. Louisville & N. R. Co., Ill Fed. 708 533 Sanger v. Trammell, 198 S.W. 1175 221 Saturnus, The, 250 Fed. 407 126 Schmidinger v. Chicago, 226 U.S. 578 573 Schroeder v. Schroeder, 144 Ga. 119 212 TABLE OF CASES CITED. lvii Page. Schroeder v. Young, 161 U.S. 334 446 Scott v. Armstrong, 146 U.S. 499 148 Scott v. The Ira Chaffee, 2 Fed. 401 121 Seaboard Air Line Ry. Co. v. Horton, 233 U.S. 492 504 Seaboard Air Line R. Co. v. United States, 261 U.S. 299 17,18 Security Savings Bank v. Cal- ifornia, 263 U.S. 282 434 Seeley v. Peters, 5 Gil. 130 386 Seibert v. Lewis, 122 U.S. 284 432 Selig v. Hamilton, 234 U.S. 652 434 Shaffer v. Bumstead, 99 Mass. 112 104 Shapiro v. Wilgus, 287 U.S. 348 516,518,520 Shaw v. People, 3 Hun 272 101 Shaw v. Railroad Co., 100 U.S. 605 516 Sheinman v. Chalmers, 33 F. (2d) 902 108, 111 Shenkenberger v. State, 154 Ind. 630 101 Shipton, Anderson & Co., In re, [1915] 3 K.B. 676 476 Shoemaker v. Hall, 257 S.W. 1047 212 Short v. Deacon, 10 S. & R. 125 287 Shreveport Case, 234 U.S. 342 74 Shriver v. Woodbine Bank, 285 U.S. 467 167 Shugart v. Atlanta, K. & N. Ry., 133 Fed. 505 236 Sikes v. Sikes, 158 Ga. 406 208 Siler v. Louisville & N. R. Co., 213 U.S. 175 178 Silver v. .Silver, 280 U.S. 117 595 Silvia, The, 171 U.S. 462 345 Sim v. Edenborn, 242 U.S. 131 55 Simmons (John) Co. v. Grier Bros. Co., 258 U.S. 82 522 Sinclair v. United States, 279 U.S. 263 396 Page. Sioux County v. National Surety Co., 276 U.S. 238 202 Siren, The, 7 Wall. 152 28 Sisson v. Schultz, 251 Mich. 553 222 Sistare v. Sistare, 218 U.S. 1 212,226 Skinner v. Case Threshing Mach. Co., 94 Ind. App. 651 519 Slater v. Mexican National R. Co., 194 U.S. 120 389 Smith v. Cahoon, 283 U.S. 553 173,175 Smith v. Condry, 1 How. 28 389 Smith v. Gilmore, 95 Pa. Super. Ct. 557 222 Smith v. Illinois Bell Tel. Co., 282 U.S. 133 564 Smith v. N.W. Fire & Marine Ins. Co., 246 N.Y. 349 345,352 Snover v. Snover, 10 NJ.Eq. 261 210 Snyder v. Atlantic M. Ins. Co., 95 N.Y. 196 353 Soerstad, The, 257 Fed. 130 89 South Carolina v. Gaillard, 101 U.S. 433 434 South Carolina v. United States, 199 U.S. 437 450,451 South Carolina v. Wesley, 155 U.S. 542 28 Southern Pac. Co. v. Kentucky, 222 U.S. 63 161 Southern Pac. Co. v. Wright, 248 Fed. 261 233 Southern Pac. Terminal Co. v. I.C.C., 219 U.S. 498 10 Southwark, The, 191 U.S. 1 88,346 Spartan, The, 47 F. (2d) 189 350 Spicer v. Smith, 288 U.S. 430 357 Spokane & I. E. R. Co. v. Whitley, 237 U.S. 487 389 Springer v. Philippine Islands, 277 U.S. 189 313 Sproles v. Binford, 286 U.S. 374 173,177,437,448,595,601 Sprout v. South Bend, 277 U.S. 163 9 LVIII TABLE OF CASES CITED. Page. Spurr v. United States, 174 U S 728 394 Stafford v. Wallace, 258 U.S. 495 8 Standard Oil Co. v. Mc- Laughlin, 67 F. (2d) 111 496 Standard Stock Food Co. v. Wright, 225 U.S. 540 603 Stanley v. Schwalby, 147 U.S. 508 28 State v. Bell, 7 Baxt. 9 218 State v. Constable, 90 W.Va. 515 222 State v. Harwell, 129 N.C. 550 394 State v. Jefferson, 125 N.C. 712 101 State v. Kuhn, 117 la. 216 101 State v. Langford, 90 Ore. 251 222 State v. Mace, 118 N.C. 1244 101 State v. Miller, 111 Kan. 231 222 State v. Moran, 99 Conn. 115 222 State v. Morgan, 136 N.C. 628 395 State v. Rhoades, 29 Wash. 61 212 State v. Savre, 129 la. 122 395 State v. Shawnee County Comm’rs, 132 Kan. 233 356 State v. Waller, 90 Kan. 829 222 State v. Wilks, 278 Mo. 481 101 State v. Williams, 67 N.C. 12 101 State v. Wright, 224 Ala. 357 357 State Board of Tax Comm’rs v. Jackson, 283 U.S. 527 597 State Railroad Tax Cases, 92 U.S. 575 271 State Tax on Foreign-Held Bonds, 15 Wall. 300 431 Stavrahn, In re, 174 Fed. 330 108 Steele v. Steele, 152 Miss. 365 223 Steel Navigator, The, 23 F. (2d) 590 345 Stephenson v. Binford, 287 U.S. 251 171, 173, 435, 437, 548, 597 Sterling v. Constantin, 287 U.S. 378 160 Page. Sterrett v. Second Nat. Bank, 248 U.S. 73 61 Stevens v. The White City, 285 U.S. 195 561 Stewart v. Commonwealth, 235 Ky. 670 101 Stone v. Farmers Loan & Trust Co., 116 U.S. 307 438 Stone v. Mississippi, 101 U.S. 814 436 Stratton v. St. Louis S. W. Ry. Co., 282 U.S. 10 31 Strong v. Smith, 68 N.J .Eq. 650 446 Sturges v. Crowninshield, 4 Wheat. 122 167,429,431,433 Sumner v. Brown, 312 Pa. 124 389 Surace v. Danna, 248 N.Y. 18 356 Suring State Bank v. Giese, 210 Wis. 489 446 Susquehanna Coal Co. v. South Amboy, 228 U.S. 665 12 Sutter Butte Canal Co. v. Railroad Comm’n, 279 U.S. 125 438 Swarts v. Siegel, 117 Fed. 13 70 Sweeny v. Easter, 1 Wall. 166 152 Swift & Co. v. United States, 196 U.S. 375 7 Swiss Oil Corp. v. Shanks, 273 U.S. 392 598 Tamplin S.S. Co. v. Anglo- Mexican Pet. Co., [1916] 2 A.C. 397 477 Tanner, In re, 192 Fed. 572 68 Tatsuuma Kisen Kabushiki Kaisha v. Robert Dollar Co., 31 F. (2d) 401 122,126 Taylor v. Jeter, 33 Ga. 195 211 Taylor v. San Antonio Gas .& Elec. Co. 93 S.W. 674 222 Tempel v. United States, 248 U.S. 121 95 Tennessee v. Sneed, 96 U.S. 69 434 Tennessee Coal, I. & R. Co. v. George, 233 U.S. 354 217, 389 TABLE OF CASES CITED. LIX Page. Terrace v. Thompson, 263 U.S. 197 295,568 Terrett v. Taylor, 9 Cranch 43 429 Territory v. Delinquent Taxpayers, 12 N.M. 139 361 Terry v. Anderson, 95 U.S. 628 434 Texas & N. 0. R. Co. v. Miller, 221 U.S. 408 436 Texas & N. 0. R. Co. v. Railway Clerks, 281 U.S. 548 592 Texas & N. 0. R. Co. v. Sabine Tram Co., 227 U.S. 111 10 Texas & Pac. Ry. Co. v. Gentry, 163 U.S. 353 233 Texas & Pac. Ry. Co. v. Volk, 151 U.S. 73 232 Thessaloniki, The, 267 Fed. 67 350 Thomas v. Potter T. & T. Co., 2 F.Supp. 12 146 Thompson v. Thompson, 226 U.S. 551 227 Thorogood v. Bryan, 8 C.B. 115 231 Throckmorton v. Holt, 180 U.S. 552 104 Tilt v. Kelsey, 207 U.S. 43 29 Tindal v. Wesley, 167 U.S. 204 26,29 Title Ins. & Trust Co. v. California Develop. Co., 171 Cal. 173 519 Tommy, The, 151 Fed. 570 88 Toyota v. Hawaii, 226 U.S. 184 603 Trenholm v. Southern Pac. Co., 8 F. (2d) 452 234 Trenton v. New Jersey, 262 U.S. 182 598 Tucker v. Alexandroff, 183 U.S. 424 294 Tucker Stevedoring Co. v. Southwalk Mfg. Co., 24 F. (2d) 410 88 Turner v. Wade, 254 U.S. 64 198 Turret Crown, The, 284 Fed. 439 350 Twitchell v. Blodgett, 13 Mich. 127 451 Page. Tyler v. Hand, 7 How. 573 534 Union Bridge Co. v. United States, 204 U.S. 364 575 Union Dry Goods Co. v. Georgia Pub. Serv. Corp., 248 U.S. 372 438 Union Ins. Co. v. Smith, 124 U.S. 405 345 Union Pac. Ry. Co. v. Callaghan, 56 Fed. 988 236 Union Pac. Ry. Co. v. Laps-ley, 51 Fed. 174 232 Union Pac. Ry. Co. v. Rule, 155 Minn. 302 217 Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194 161,163 Union Refrigerator Transit Co. v. Lynch, 177 U.S. 149 161,163 Union Tank Line Co. v. Wright, 249 U.S. 275 161,163 Union Trust Co. v. Illinois Midland Ry. Co., 117 U.S. 434 516 United Fuel Gas Co. v. Hal-lanan, 257 U.S. 277 8,9 United Railways v. West, 280 U.S. 234 569 United Real Estate Co. v. McDonald, 140 Mo. 605 54 United States, Ex parte, 287 U.S. 241 602,605 United States v. American Ry. Exp. Co., 265 U.S. 425 269,487 United States v. Bentley & Sons Co., 293 Fed. 229 88 United States v. Blackfeather, 155 U.S. 180 487 United States v. Bolster, 26 F. (2d) 760 369 United States v. Buffalo, 54 F. (2d) 471 95 United States v. Butterworth-Judson Corp. 267 U.S. 387 146 United States v. Candelaria, 271 U.S. 432 361,363 United States v. Celestine, 215 U.S. 278 39 United States v. Chemical Foundation, 272 U.S. 1 595 LX TABLE OF CASES CITED. Page. United States v. Clapp, 63 F. (2d) 793 558 United States v. Cohen Grocery Co., 255 U.S. 81 426 United States v. Commercial Credit Co., 286 U.S. 63 592 United States v. Cress, 243 U.S. 316 16 United States v. Daniel, 6 How. 11 388 United States v. Davis, 2 Sumner 482 287 United States v. Diehl, 62 F. (2d) 343 560 United States v. Eggen, 58 F. (2d) 616 561 United States v. Estill, 62 F. (2d) 620 39 United States v. Fetters, 1 F.Supp. 637 307 United States v. G. Falk & Bro., 204 U.S. 143 262 United States v. Godfrey, 47 F. (2d) 126 560 United States v. Golden, 34 F. (2d) 367 558 United States v. Great Northern Ry. Co., 287 U.S. 144 135, 143 United States v. Grimaud, 220 U.S. 506 575,595 United States v. Hairston, 55 F. (2d) 825 561 United States v. Harrison, 49 F. (2d) 227 560 United States v. Hic.key, 17 Wall. 9 487 United States v, Joseph, 94 U.S. 614 363 United States v. Lawson, 50 ' F. (2d) 646 560 United States v. Lee, 106 U.S. 196 29 United States v. Lefkowitz, 285 U.S. 452 . 46 United States v. Linkhart, 64 F. (2d) 747 558,561 United States v. Louisiana, 290 U.S. 70 594 United States v. Lynah, 188 U.S. 445 16 United States v. Macintosh, 283 U.S. 605 597 Page. United States v. Mares, 14 N«M. 1. 362 United States v. Mayer, 235 U.S. 55 594 United States v. McGill, 56 F. (2d) 522 560 United States v. Missouri Pac. R. Co, 278 U.S. 269 262,264 United States v. Mulligan, 50 F. (2d) 687 299 United States v. Murdock, 284 U.S. 141 391,396 United States v. N. Y. & O. S.S. Co, 216 Fed. 61 345 United States v. Noble, 237 U.S. 74 34 United States v. North American Co, 253 U.S. 330 16,18 United States v. Pelican, 232 U.S. 442 364,365 United States v. Perry, 55 F. (2d) 819 560 United States v. Philbrick, 120 U.S. 52 252 United States v. Philadelphia & R. Ry. Co, 223 Fed. 207 395 United States v. Phillips, 44 F. (2d) 689 560 United States v. Ramsey, 271 U.S. 467 364,365 United States v. Rauscher, 119 U.S. 407 287,312 United States v. Reid, 12 How. 361 373,374 United States v. Rogers, 255 U.S. 163 17 United States v. Russell, 13 Wall. 623 426 United States v. Sandoval, 231 U.S. 28 361,362,365 United States v. Sioux City Co, 162 Fed. 556 395 United States v. Texas, 162 U.S. 1 295 United States v. Tyrakowski, 50 F. (2d) 766 558 U.S. ex rel. Bernardin v. Butterworth, 169 U.S. 600 533 TABLE OF CASES CITED. LXI Page. U.S. ex rel. Norwegian Nitrogen Co. v. Tariff Comm’n, 274 U.S. 106 586,599 Vajtauer v. Commissioner, 273 U.S. 103 396 Van Brocklin v. Tennessee, 117 U.S. 151 91 Vance v. Vance, 108 U.S. 514 434 Vandewater v. Mills, 19 How. 82 121 Van Roeder v. Miller, 117 Mise. 106 222 Virginia Coupon Cases, 114 U.S. 269 434 Von Hoffman v. Quincy, 4 Wall. 535 430,432 Waalhaven, The, 36 F. (2d) 706 346 Wabash R. Co. v. Flannigan, 192 U.S. 29 597,604 Waggoner v. Flack, 188 U.S. 595 167,434 Wagner v. Leenhouts, 287 U.S. 571 600 Waite v. Santa Cruz, 184 U.S. 302 188 Walder v. Walder, 159 La. 231 214,222 Waldron v. Waldron, 156 U.S. 361 490 Wales v. Miner, 89 Ind. 118 394 Walker v. Whitehead, 16 Wall. 314 430,432,465,469 Wallace v. Loomis, 97 U.S. 146 516 Warner v. Walsh, 15 F. (2d) 367 369 Warner (Charles) Co. v. Independent Pier Co., 278 U.S. 85 487 Warren v. Furstenheim, 35 Fed. 691 533 Washburn, Matter of, 4 Johns. Ch. 105 287 Washington & G. R. Co. v. Harmon, 147 U.S. 571 232 Washington & G. R. Co. v. Hickey, 166 U.S. 521 235 Waterman v. Canal-Louisiana Bank Co., 215 U.S. 33 29 Waterman v. Whitney, 11 N.Y. 157 105 Page. Waterville v. Van Slyke, 116 U.S. 699 ............... 594 Waugh v. Mississippi University, 237 U.S. 589 597 Wear v. Wear, 130 Kan. 205 223 Weeks v. United States, 232 U.S. 383 46 Weidman v. Weidman, 274 Mass. 118 216 Wellman v. Morse, 76 Fed. 573 127 Wells v. Wells, 11 App.D.C. 392 210 Wells Fargo & Co. v. Jersey City, 207 Fed. 871 69 Western T. & T. Co. v. Brown, 196 U.S. 502 146 Western Union v. Brown, 234 U.S. 542 389 Western Union v. Kansas, 216 U.S. 1 161 West River Bridge v. Dix, 6 How. 507 435,444 White v. Commissioner, 61 F. (2d) 726 116 White v. Miller, 78 N.Y. 393 166 White v. White, 169 Mo. App. 40 222 Wicker v. Hoppock, 6 Wall. 94 54 Wickwire v. Reinecke, 275 U.S. 101 115 Wildcroft, The, 201 U.S. 378 346 Wilkins v. Wilkins, 146 Ga. 382 210 Wilkinson v. Culver, 25 Fed. 639 63 Willamette Valley, The, 66 Fed. 565 63 Willdomino, The, 300 Fed. 5 343,350 William Bagaley, The, 5 Wall. 377 487 Williams v. Mississippi, 170 U.S. 213 575 Williams v. Nottawa, 104 U.S. 209 188 Williams v. People, 26 Colo. 272 394 Wilmington & Weldon R. Co. v. King, 91 U.S. 3 434 Wilson v. Cook, 256 Ill. 460 218 LXII TABLE OF CASES CITED. Page. Wilson v. New, 243 U.S. 332 426 Wilson v. Sawyer, 177 Ark. 492 356 Wilson v. Standefer, 184 U.S. 399 434 Wilson v. United States, 287 U.S. 623 627 Wilson & Co. v. Smith, 3 How. 763 149 Wisconsin v. Pelican Ins. Co., 127 U.S. 265 216 Wisconsin Central R. Co. v. United States, 164 U.S. 190 143 Wisconsin R.R. Comm’n v. C., B. & Q. R. Co., 257 U.S. 563 74,75,78,82 Wise v. Jefferis, 51 Fed. 641 64 Wise v. United States, 63 F. (2d) 307 558,561 Wood v. Guarantee Trust Co., 128 U.S. 416 516 Wood v. Weimar, 104 U.S. 786 64 Woodhull v. Trust Co., 11 N.D. 157 63 Woods, Ex parte, 40 Ala. 77 468 Page. Woodside v. Beckham, 216 U.S. 117 188 Woolford Realty Co. v. Rose, 286 U.S. 319 114 Work v. Leathers, 97 U.S. 379 88 Work v. Rives, 267 U.S. 175 142 Wright v. Central of Georgia Ry. Co., 236 U.S. 674 431 Wright v. Henkel, 190 U.S. 40 287, 301, 305, 307, 313, 315, 316, 317 Yarbrough, Ex parte, 110 U.S. 651 545 Yardley v. Philler, 167 U.S. 344 149 Yazoo & M. V. R. Co. v. Jackson Vinegar Co., 226 U.S. 217 575 Yick Wo v. Hopkins, 118 U.S. 356 198 Yordi v. Nolte, 215 U.S. 227 299 Young, Ex parte, 209 U.S. 123 26,569,593 Zacher v. Fidelity Trust Co., 106 Fed. 593 219 Zollinger v. The Emma, Fed. Cas. No. 18218 123 TABLE OF STATUTES Cited in Opinions (A) Statutes of the United States. Page. 1789, July 31, c. 5, 1 Stat. 43....................... 47 1792, Apr. 14, c. 24, 1 Stat. 254 .......................... 260 1803, Feb. 28, c. 9, 2 Stat. 204 .......................... 260 1834, June 30, c. 161, § 25, 4 Stat. 729................... 359 1848, Aug. 12, c. 167, § 1, 9 Stat. 302................... 291 1882, Aug. 3, c. 378, § 5, 22 Stat. 216..................... 291 1884, June 26, c. 121, § 9, 23 Stat. 53 .................. 260 1884, June 26, c. 121, § 18, 23 Stat. 53.............. 87 1887, Feb. 4, c. 104, §§ 2, 3, 5, 24 Stat. 379'....... 74 1887, Feb. 4, c. 104, § 13 (3), 24 Stat. 379............. 72 1887, Feb. 4, c. 104, § 13 (4), 1887, Feb. 4, c. 104, § 15 (1), 24 Stat. 379............ 74 1887, Feb. 4, c. 104, § 15a (2), 24 Stat. 379.. 72,73 1887, Feb. 8, c. 119, § 5, 24 Stat. 388 ..................... 34 1887, Mar. 3, c. 359, 24 Stat. 505 .......................... 258 1890, July 2, c. 647, 26 Stat. 209............................. 7 1892, July 16, c. 197, 27 Stat. 223, 233 ............. 260 1893, Feb. 13, c. 105, § 3, 27 Stat. 445..................... 342 1893, Mar. 1, c. 182, 27 Stat. 496, 506.............. 260 1893, Mar. 3, c. 203, 27 Stat. 557 .......................... 36 Page. 1893, Mar. 3, c. 203, Art. IV, 27 Stat. 557............ 34 1894, July 26, c. 166, 28 Stat. 141, 150............. 260 1895, Mar. 2, c. 185, 28 Stat. 815, 824............. 260 1896, May 28, c. 252, 29 Stat. 140, 186 ............ 260 1898, July 1, c. 541, 30 Stat. 544 1898, Dec. 21, c. 28, 30 Stat. 755...................... 258, 261 1899, Feb. 8, c. 121, 30 Stat. §22 533 1902, June 17,'' c.'' 1093,’ 32 Stat. 388..................... 90 1905, Mar. 3, c. 1479, 33 Stat. 1048 ........................ 361 1906, June 21, c. 3504, 34 Stat. 325............... 34 1906, June 29, c. 3591, § 4, 34 Stat. 589 ................. 74 1907, Mar. 2, c. 2564, 34 Stat. 1246......................... 359 1908, Apr. 22, c. 149, 35 Stat. 65........................... 500 1909, Mar. 4, c. 321, 35 Stat. 1088........................ 359 1910, June 20, c. 310, 36 Stat. 557 25Q 1911, Feb. 16, Res. No. 6, 36 Stat. 1454.......... 359 1911, Aug. 21, Res. No. 8, 37 Stat. 39.................. 359 1913, Oct. 22, c. 32, 38 Stat. 208 .......................... 71 1916, July 17, c. 245, 39 Stat. 360.......................... 249 1916, July 27, c. 260, 39 Stat. 399..................’........ 15 Lxm LXIV TABLE OF STATUTES CITED. Page. 1917, Aug. 10, c. 53, 40 Stat. 276............................ 17 1917, Oct. 3, c. 63, § 500, 40 Stat. 300 .................... 494 1917, Oct. 3, c. 63, § 500 (d), 40 Stat. 300.......... 495 1917, Oct. 3, c. 63, §§ 501, 503, 40 Stat. 300 .... 494 1917, Oct. 6, c. 105, § 2, 40 Stat. 398..................... 558 1917, Oct. 6, c. 105, Arts. Ill and IV, 40 Stat. 398.. 554 1918, Mar. 21, c. 25, 40 Stat. 451........................... 136 1919, Feb. 24, c. 18, §§ 500- 502, 40 Stat. 1057.... 495 1919, Mar. 2, c. 95, 40 Stat. 1275........................... 15 1920, Feb. 28, c. 91, 41 Stat. 456........................... 133 1920, Feb. 28, c. 91, § 204 (a), 41 Stat. 456............. 137 1920, Feb. 28, c. 91, § 407, 41 Stat. 456................... 74 1920, Feb. 28, c. 91, § 416, 1920, Feb. 28, c. 91, § 418, 41 Stat. 456................. 74 1921, Aug. 15, c. 64, 42 Stat. 159........................... 7 1921, Nov. 23, c. 136, § 402 (d), 42 Stat. 227.... 57 1922, June 1, c. 204, 42 Stat. 599 ........................ 260 1922, Sept. 21, c. 356, § 595, 42 Stat. 858 .......... 45 1923, Jan. 3, c. 21, 42 Stat. 1068 ....................... 260 1924, June 2, c. 234, § 213 (b)(3), 43 Stat. 253.. 370 1924, June 2, c. 234, § 214, 43 Stat. 253................ 113 1924, June 2, c. 234, § 219, 43 Stat. 253.... 367,370 1924, June 2, c. 234, § 219 (b)(2), 43 Stat. 253. 371 1924, June 7, c. 320, § 22, 43 Stat. 613................ 356 1924, June 7, c. 331, 43 Stat. 636 ........................ 362 1925, Feb. 13, c. 229, 43 Stat. 936. ... 586,587,593,605 Page. 1925, Feb. 13, c. 229, § 8 (a), 43 Stat. 936........... 590 1925, Feb. 13, c. 229, § 11, 43 Stat. 936................. 531 1925, Feb. 28, c. 368, Title III, §§ 241-244, 252, 43 Stat. 1053.... 540 et seq. 1926, Feb. 26, c. 27, §§ 161, 162, 44 Stat. 9.........368 1926, Feb. 26, c. 27, § 214, 44 Stat. 9............. 113 1926, Feb. 26, c. 27, § 256, 44 Stat. 9..............391 1926, Feb. 26, c. 27, § 1104, 44 Stat. 9............. 392 1928, Jan. 31, c. 14, 45 Stat. 54 .......................... 459 1928, Apr. 26, c. 440, 45 Stat. 466 ......................... 359 1928, May 29, c. 852, § 23, 45 Stat. 791........... 113 1928, May 29, c. 852, § 146 (a), 45 Stat. 791...... 392 1928, May 29, c. 852, § 148, 45 Stat. 791........... 391 1928, May 29, c. 852, §§ 161, 162, 45 Stat. 791.... 368 1928, May 29, c. 852, § 618, 45 Stat. 791................. 392 1929, Jan. 25, c. 102, 45 Stat. 1094, 1098 .................. 260 1930, June 7, c. 497, § 595, 46 Stat. 590 ................. 45 1933, Feb. 17, c. 97, 47 Stat. 819........................... 41 1933, Mar. 3, c. 204, § 77, 47 Stat. 1474............. 516 Constitution. See Index at end of Volume. Criminal Code. § § 272, .287... 359 Judicial Code. § § 24, 28............... 200 § 177................... 17 §§ 237 (a), 237 (c)... 586, 587,593,605 § 238 .................. 71 § 266............ 30, 31, 266 Revised Statutes. § 709......................... 328 §§ 905, 906.................... 214 § 2116........................ 363 § 2145 ....................... 359 TABLE OF STATUTES CITED. LXV Revised Statutes—Contd. Page. §§ 4283, 4289 ......... 87 § 4522 ................... 263 § 4526 ................... 258 § 4561 ................... 263 § 4577 ................... 260 § 4578... 258, 259, 260, 261 § 4579 ................... 260 §§ 4581, 4582 ........ 263 § 5226 ................... 261 § 5270 ................... 291 § 5356 ................... 359 §§ 5508, 5520......... 545 US. Code. Title 2, § 192............. 397 §§ 241 - 244, 252.. 540 et seq. Title 11, § 32................ 69 § 32 (b) (3).. 68 Title 12, §§ 651, 652, 671, 683....... 251 §§ 711, 712, 713, 714..........252 § 715......... 253 §§ 719, 720 .... 252 § 721......... 253 § 733..... 252, 253 § 742......... 253 § 761......... 252 § 771..... 251, 252 §§ 791, 803 .... 251 Title 18, §§ 451, 466.... 359 § 567 ........ 97 § 651.... 286, 291 § 653 ....... 304 § 655 ....... 291 § 658 ....... 263 U.S. Code—Continued. Page. Title 18, § 682 ...... 359 Title 25, § 217. 359,364,365 Title 26, § 955 ...... 113 § 960 ......... 367 §§ 1023, 1247, 1265, 2148. 392 Title 28, § 41............ 200, 201 § 41 (1)........ 187 § 41 (20).. 15, 16 § 71..... 200, 201 § 80............ 188 § 284 ........... 17 § 344 .......... 328 § 345 .......... 359 § 350 .......... 590 § 380. 30, 178, 266 §§ 687, 688.... 214 § 780 .......... 531 Title 38, § 454 ............ 356 §§ 471 et seq.. 355 §§ 511 et seq.. 355 § 618.....356 Title 46, §§ 1, 2......... 261 §§ 183, 188, 189.......... 87 § 192 .......... 342 § 593 .... 258,261 § 679 .... 258,260 §§ 680, 681.... 260 §§ 683, 685, 703 ........ 263 Title 49, § 20 (11) .... 578 U.S. Code Appendix. Title 26, § 955 ............ 113 (B) Statutes of the States and Territories. Alabama. Page. 1923 Code, §§ 4131, 4912 ................. 299 Arkansas. 1921, Crawford & Moses Digest, §§ 2449, 2493 . 299 § 6155 ............... 200 California. 1931 Penal Code, §§ 484, 496 .................. 299 Florida. Comp. Gen. Laws, §§ 4326,6810....... 145 15459°—34----------V Florida—Continued. Page. .§ 6834................... 147 §§ 7051,7052... 324,325 Georgia. 1910 Civil Code, § 2184...........211 § 2944 ......... 205 §§ 2981,2982 .... 208 § 2992.......... 211 § 3020.......... 207 1910 Penal Code, § 116. 207 LXVI TABLE OF STATUTES CITED. Idaho. Page. 1919 Comp. Stats., §§ 3999-4151......... 92 et seq. 1932 Code, §§ 17-3902, 17-3512 .............. 299 Indiana. 1926, Burns’ Ann. Stats., § 2465................ 299 Kansas. 1923 Rev. Stats., §§ 21-551, 21-549.. 299 §§ 66-107, 66-110, 66-111,66-113, 66-138, 74-602 a, b, c............ 563 1931 Laws, c. 239............ 563 Kentucky. 1932 Acts, c. 158............ 178 Stats., §§ 201e-2, 201e-5, 201e-ll, 201e-14.......270 Louisiana. 1932 Crim. Code, Art. 1306 ...................... 299 Massachusetts. 1932 Gen. Laws, c. 266, § 60 ...................... 299 Minnesota. 1927, Mason’s Stats., § 10136 .......... 221 §§ 10358,10374 .... 299 1933 Laws, c. 339. 415 et seq. Missouri. 1929 Rev. Stats., §§ 4083, 4095 ................. 299 Montana. 1921 Rev. Codes., §§ 11388, 11410 .............. 299 Nebraska. 1921 Laws, c. 2, p. 56.. 573 1929 Comp. Laws, § 10543 ..................... 299 1931 Laws, c. 117, § 1.. 299 1931 Laws, c. 162, p. 430 ....................... 571 New Jersey. 1925-1930 Supp. to 1911 Comp. Stats., § 52- 166e (1)................... 299 New York. 1920 Laws, cc. 942-947, 951 .................. 440 1927 Laws, c. 623............ 165 New York—Continued. Page. Civil Practice Act, § 480, as amended........165 Penal Code, §§ 1290, 1308 ..................... 299 North Carolina. 1931 Code, §§ 4277, 4250 ................. 299 Ohio. 1930, Throckmorton’s Ann. Code, § 12450... 299 Oregon. 1930 Code, §§ 49-701, 67-1101................ 67 Pennsylvania. 1921 Laws, No. 29, § 35 (b), p. 58............ 388 Rhode Island. 1923 Laws, §§ 6072, 6070 ................. 299 1928 Laws, c. 1208.......... 299 South Carolina. 1925 Acts, p. 252...... 170 1928 Acts, p. 1238..... 170 1930 Acts, pp. 1068,1100, 1327 ................. 170 1931 Acts, p. 145...... 170 1932 Code, § 1123..... 221 §§ 7843, 7844, 7852, 7854, 7855, 7868. 329 c. 1 6 2, § § 8507-8530. 170 et seq. 1933 Acts, Act of Mar. 9.............................329 Tennessee. 1932 Code, §§ 10949, 10950 ............... 299 Texas. Constitution, Art. II, § 5.................. 183 1929 Gen Laws, c. 40, p. 80................ 183 1931 Gen. Laws, c. 26, p. 33................ 183 Baldwin’s Stats., Art. 826 ...................... 183 Baldwin’s Stats., Arts. 828-834 ............. 184 Baldwin’s Stats., Arts. 1024, 1241-1258........... 183 Vernon’s Ann. Civ. Stats., Art. 826.......... 183 TABLE OF STATUTES CITED. LXVII Texas—Continued. Pace. Vernon’s Ann. Civ. Stats., Arts. 828-834 ............... 184 V e r n o n’s Ann. Civ. Stats., Arts. 1024, 1241-1258 ........ 183 Charter, City of Cisco, Art. 11, §§ 7, 9; Art. 13, § 4........... 183 Utah. 1917 Comp. Laws, §§ 8297, 8344 ............. 299 Virginia. Page. 1930 Acts, c. 62, p. 74... 192 1930 Code, § 3974a.......... 192 §§4448,4459.. 299 West Virginia. 1931 Code, p. 1469, c. 61, Art. 3, § 24; p. 1467, c. 61, Art. 3 § 18...........................299 Wyoming. 1931 Rev. Stats., § 32- 318..........................299 (C) Treaties. Page. 1794, Nov. 19, Art. 27, 8 Stat. 116 (England).. 309 1832, Oct. 24, 7 Stat. 391 (Kickapoo Indians) .. 35 1842, Aug. 9, 8 Stat. 572 (England).............. 286,309 1854, May 18, 10 Stat. 1078 (Kickapoo Indians) .. 35 1860, Mar. 21, 12 Stat. 157 (Sweden & Norway).. 294 1862, June 28, 13 Stat. 623 (Kickapoo Indians) .. 35 1880, May 22, 21 Stat. 769 (Netherlands)...............294 1882, Aug. 7, 22 Stat. 991 (Spain)....................294 1887, June 2, 26 Stat. 1481 (Netherlands)........294 1889, July 12, 26 Stat. 1508 Page. 1893, June 7, 28 Stat. 1187 (Norway)...............294 1897, May 14, 33 Stat. 2091 (Brazil)....................294 1900, Apr. 17, 32 Stat. 1850 (Chile).................... 294 1900, Apr. 21, 32 Stat. 1857 (Bolivia).................. 294 1900, Dec. 13, 32 Stat. 1864 (England)..............292 1901, Oct. 25, 32 Stat. 1890 (Servia)...............294 1902, Jan. 6, 32 Stat. 1906 (Denmark).................. 294 1904, Apr. 6, 33 Stat. 2265 (Cuba)..................... 294 1904, May 25, 34 Stat. 2851 (Panama)...............294 1904, June 15, 35 Stat. 1947 (Spain)...............294 1904, Dec. 10, 34 Stat. 2865 (Norway)..............294 1905, Apr. 12, 34 Stat. 2903 (England)........ 292,311 1908, May 7, 35 Stat. 2071 (Portugal)............294 1922, Nov. 10, 43 Stat. 1621 (Costa Rica)...............294 1922, Dec. 30, 43 Stat. 1749 (Siam)......................294 1923, Oct. 16, 43 Stat. 1738 (Latvia)..............294 1923, Nov. 8, 43 Stat. 1849 (Esthonia)............294 1924, Mar. 19, 43 Stat. 1886 (Bulgaria)................. 294 1924, Apr. 9, 43 Stat. 1835 (Lithuania)...........294 1924, July 23, 44 Stat. 2020 (Rumania).............294 1924, Aug. 1, 44 Stat. 2002 (Finland).............294 1925, July 2, 44 Stat. 2367 (Czechoslovakia)......294 1926, Jan. 14, 44 Stat. 2392 (Cuba)..................... 294 1927, Nov. 22, 46 Stat. 2282 (Poland)..............294 1930, Jan. 31, 46 Stat. 2779 (Austria).............. 294 1930, July 12, 47 Stat. 1862 (Germany).............294 1931, May 6, 47 Stat. 2185 (Greece)..............294 1932, Aug. 9, 47 Stat. 2122 (England).............. 293,301 lxviii TABLE OF STATUTES CITED. (D) Foreign Statutes. English. 1870, Extradition Act, § 26 .......................... 305 1870, Acts of Parliament, 33 and 34 Victoria, c. English—Continued. Page. 52 .................... 301,302 1873, Acts of Parliament, 36 and 37 Victoria, c. 60 .................... 301,302 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1933 MINNESOTA v. BLASIUS. CERTIORARI TO THE SUPREME COURT OF MINNESOTA. No. 7. Argued October 11, 1933.—Decided November 6, 1933. 1. When cattle, consigned from one State to a stock market in another State, had reached that destination and been sold, and were being held in the stockyard pens at the expense of the buyer and subject to his free disposition, they had acquired a situs for local state taxation as the buyer’s property, though in the course of his business he was offering them for resale, in the same market, when the tax was imposed, and sold them soon afterwards for interstate consignment. Pp. 6, 12. 2. The existence of regulatory power in Congress over a current of interstate commerce, including related local transactions in the exchange markets through which the commerce flows, is not inconsistent with the imposition of non-discriminatory state taxes on goods which, though connected with such current as a general course of business, have come to rest in the State and are held there at the pleasure of their owner, for disposal or use, when the tax is imposed. Pp. 8,10. 3. The crucial question in such cases is the continuity of transit. This is always a question of substance; and in each case it is necessary to consider the particular occasion or purpose of the interruption during which the tax is sought to be levied. P. 9. 187 Minn. 420; 245 N.W. 612, reversed. The Supreme Court of Minnesota reversed a judgment recovered by the State in an action to collect a tax on livestock. Certiorari was granted, 289 U.S. 717. 15459’—34--------1 1 2 290 U.S. OCTOBER TERM, 1933. Argument for Respondent. Mr. Harry H. Peterson, Attorney General of Minnesota, and Mr. Harold E. Stassen, with whom Mr. William S. Ervin, Assistant Attorney General, was on the brief, for petitioner. The cattle were at rest. The continuity of their interstate journey was broken and they were subject to the taxing power of the State. Hughes Bros. Timber Co. v. Minnesota, 272 U.S. 469; Missouri Pacific R. Co. v. Schnipper, 51 F. (2d) 749; Brown n. Houston, 114 U.S. 622; Pittsburgh & Southern Coal Co. v. Bates, 156 U.S. 577; Diamond Match Co. v. Ontonagon, 188 U.S. 82; American Steel & Wire Co. v. Speed, 192 U.S. 500; General Oil Co. v. Crain, 209 U.S. 211. Cf. Carson Petroleum Co. v. Vial, 279 U.S. 95; Gulf Refining Co. v. Phillips, 11 F. (2d) 967; Bacon v. Illinois, 227 U.S. 504; Susquehanna Coal Co. v. South Amboy, 228 U.S. 665; Myers v. Baltimore Co., 83 Md. 385; State v. Burlington Lumber Co., 118 Minn. 329. Distinguishing: Coe N. Errol, 116 U.S. 517; Kelley v. Rhoads, 188 U.S. 1; Champlain Realty Co. n. Brattleboro, 260 U.S. 366; Hughes Bros. Timber Co. v. Minnesota, 272 U.S. 469; Eureka Pipe Line Co. v. Hallanan, 257 U.S. 265. Cases such as the Swift and Stafford cases which dealt with the extent of the federal commerce power are not applicable, since in this case we have to say whether a given exercise of state power was such as to conflict with the federal power. See Bacon n. Illinois, 227 U.S. 504. Even if the cattle were in interstate commerce at the time of the levy, the tax was valid; it was so indirect as not to amount to a regulation of interstate commerce. Mr. D. L. Grannis for respondent. In the modern economic system, large central markets for the sale and purchase of livestock for slaughter or feeding are essential both to the business of the large packing houses and to that of the dealers and traders in the MINNESOTA v. BLASIUS. 3 1 Argument for Respondent. East and Middle West who are continually purchasing cattle from the Northwest. When the producer consigns livestock to the St. Paul stockyards, he does not intend, and there can be no intention, that the stockyards should be the final destination. The cattle are sent there for the purpose of finding a buyer, and then to be slaughtered or continued on their journey. The very nature of livestock requires that its journey from State to State be interrupted for feed and water, which is a part of the service performed in the stockyards. The stockyards are operated by a public service corporation, which provides yard space for the persons doing business therein, including the defendant. The defendant has no facilities for storing cattle indefinitely. Livestock may be kept in the yards for a short time; but in the regular course of business the great portion of it is disposed of very quickly to give way to the thousands of head arriving from day to day. The detention of the cattle in the stockyards is similar to the holding of the oil in the pipe lines in the case of Eureka Pipe Line Co. v. Hallanan, 257 U.S. 265, and in Carson Petroleum Co. v. Vial, 279 U.S. 95; to the detention of the logs in Champlain Realty Co. v. Brattleboro, 260 U.S. 366; and of the sheep in the case of Kelley v. Rhoads, 188 U.S. 1. This Court has definitely indicated that cattle in the stockyards are in interstate commerce and are to be regarded as in transit during their temporary detention there. Stafford v. Wallace, 258 U.S. 495; Swift n. United States, 196 U.S. 375; Hughes Bros. Timber Co. v. Minnesota, 272 U.S. 469. If the cattle in the stockyards are to be regarded as in interstate commerce for purposes of federal regulation, they must necessarily be in interstate commerce for any Other purpose. 4 290 U.S. OCTOBER TERM, 1933. Argument for Respondent. In Carson Petroleum Co. v. Vial, 279 U.S. 92, which involved the validity of an ad valorem duty on oil imposed by a State, the decision was based mainly on cases involving the power of the federal government over interstate commerce, such as Texas & N. 0. R. Co. v. Sabine Tram Co., 227 U.S. Ill, and Railroad Commission v. Worthington, 225 U.S. 101. There is also definite language in both the Swift and Stafford cases indicating that the cattle in stockyards are not sufficiently at rest to subject them to local taxation. Bacon n. Illinois, 227 U.S. 504, is distinguishable. Bacon withdrew his grain from the flow of interstate commerce for his own private benefit. In the case at bar the defendant, in the regular course of business, bought the cattle for his own profit it is true, but also to facilitate their interstate commerce journey. The fact that title passes during the interstate journey does not necessarily deprive the property of its interstate character. East Ohio Gas Co. v. Tax Commission, 283 U.S. 465; Stafford v. Wallace, 258 U.S. 495; Eureka Pipe Line Co. n. Hallanan, 257 U.S. 265. In American Steel & Wire Co. v. Speed, 192 U.S. 500, the owner withdrew the goods from their interstate journey for an indefinite period and put them in its own warehouses (leased) and for its own private benefit. Myers v. Baltimore, 83 Md. 385, was decided by a state court forty years ago, at a time when interstate traffic in livestock had not reached its present magnitude. In General Oil Co. v. Crain, 209 U.S. 211, the Oil Company withdrew oil from its interstate commerce journey and stored it in its own tank and for its own purposes in conducting a local redistribution business. Its scope is explained in Carson Petroleum Co. v. Vial, 279 U.S. 95. The case of Susquehanna Coal Co. v. South Amboy, 228 U.S. 665, followed the Crain case, and the same principles apply. , MINNESOTA v. BLASIUS. 5 1 Opinion of the Court. If the cattle in this case were in interstate commerce, the tax was a burden on such commerce. Hughes Bros. Timber Co. V. Minnesota, 2772 U.S. 469; Carson Petroleum Co. n. Vial, 279 U.S. 95; Nashville, C. & St. L. Ry. Co. v. Wallace, 288 U.S. 249. Mr. Chief Justice Hughes delivered the opinion of the Court. Respondent, George Blasius, is a trader in livestock at the St. Paul Union Stockyards in South St. Paul, Minnesota. On May 1, 1929, he owned and had in his possession in these yards eleven head of cattle which were assessed for taxation as his personal property, under the general tax law of the State. In this action, brought to collect the tax, Blasius defended upon the ground that the cattle were in course of interstate commerce, and a part of that commerce, and were not subject to state taxation. The Supreme Court of the State, overruling the decision of the trial court, sustained this defense, and this Court granted certiorari. 187 Minn. 420; 245 N.W. 612; 289 UK 717. The material facts, as found by the trial court, are these: At the St. Paul Union Stockyards, thousands of head of livestock arrive daily by railroad and truck and are promptly sold and moved. The livestock comes from the State of Minnesota and other States throughout the northwest. The class of livestock which Blasius buys on the market are those that go immediately thereafter into the hands of feeders or growers within and without the State of Minnesota and principally beyond the borders of that State. He has not dealt in livestock for immediate slaughter. Thus, it was the practice of Blasius to go upon the market at the stockyards and buy livestock to meet the requirements of his trade, and in the regular course of his business practically all cattle purchased by him were sold and shipped to non-residents of the State, 6 290 UK OCTOBER TERM, 1933. Opinion of the Court. although selling and shipping to residents of the State did sometimes occur. The eleven head of cattle in question came to the yards from some point outside the State of Minnesota; they had been consigned to commission firms for sale at the South St. Paul market; the consignors “ had no intent to transport said cattle to any other place than South St. Paul, nor did they have any intent that such cattle should be transported to any particular place after their sale ”; they were bought by Blasius from the commission merchants on April 30,1929, and on May 1, 1929, the tax date, they were owned by him and “ had not been entered with any carrier for shipment to any point,” but were being offered for sale on the market; seven of the eleven head were sold on that day to a non-resident purchaser and were immediately shipped by the purchaser to points outside the State of Minnesota; the remaining four head were similarly sold and shipped on the following day. After his purchase Blasius placed the cattle in pens leased by him from the stockyards company; he paid for their feed and water up to the time of resale. The court found that Blasius was not “ subject to any discrimination in favor of cattle solely the product of the State of Minnesota ”; that the assessment was made at the regular time and in the usual manner for taxation of personal property within the State; that the transportation of the cattle ceased after purchase from the commission men; that the cattle were not held by Blasius for the purpose of promoting their safe or convenient transit but were purchased and held by him because he desired to make a profit at their resale; that they were held at his pleasure and that he would sell to anyone, resident or non-resident, who was the highest bidder; that Blasius did not buy the cattle for the purpose of export or shipment to another State; and that after their purchase by him, and until he resold, the cattle were “ at absolute and MINNESOTA v. BLASIUS. Opinion of the Court. 7 1 complete rest in the yards at South St. Paul ” and “ were a part of the general mass of cattle in the State and locally owned.” The court also found that the cattle were “ handled by the defendant as a part of the chain of title from the original producer thereof to the final consumer thereof,” and that such handling was “ a necessary factor in the center of chain of commerce from West to the East and South.” The dealings at the South St. Paul stockyards including the transactions of Blasius, as described in these findings, manifestly were so related to a current of commerce among the States as to be subject to the power of regulation vested in the Congress. Applying the cardinal principle that interstate commerce as contemplated by the Constitution “ is not a technical legal conception, but a practical one, drawn from the course of business,” this Court said, in Swift <& Co. v. United States, 196 U.S. 375, 398, 399: “ When cattle are sent for sale from a place in one State, with the expectation that they will end their transit, after purchase, in another, and when in effect they do so, with only the interruption necessary to find a purchaser at the stock yards, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the States, and the purchase of the cattle is a part and incident of such commerce.” In that case, the question was as to the reach of the federal power through the prohibitions of the Anti-Trust Act of July 2, 1890 (26 Stat. 209), and these were held to apply to an attempt to monopolize commerce among the States by “ a combination of independent dealers to restrict the competition of their agents when purchasing stock for them in the stock-yards.” On the same fundamental principle, the Court sustained the Packers and Stockyards Act of 1921 (42 Stat. 159) providing for the supervision by federal authority of the business of commission men and livestock dealers in the great stockyards of the country. Stafford v. 8 290 US. OCTOBER TERM, 1933. Opinion of the Court. Wallace, 258 U.S. 495.1 It was in deference to these decisions that the state court denied validity to the tax here assailed. 187 Minn., p. 426. But because there is a flow of interstate commerce which is subject to the regulating power of the Congress, it does not necessarily follow that, in the absence of a conflict with the exercise of that power, a State may not lay a non-discriminatory tax upon property which, although connected with that flow as a general course of business, has come to rest and has acquired a situs within the State. The distinction was recognized in Stafford n. Wallace, supra, pp. 525, 526, where the Court cited, as an illustration, the case of Bacon v. Illinois, 227 U.S. 504, in which such a non-discriminatory property tax was sustained. And the Court in the Stafford case quoted from the opinion in the Bacon case {supra, p. 516) the following statement of the distinction: 11 The question ” (that is, as to the validity of the state tax) “ it should be observed, is not with respect to the extent of the power of Congress to regulate interstate commerce, but whether a particular exercise of state power in view of its nature and operation must be deemed to be in conflict with this paramount authority.” The States jnay not impose direct burdens upon interstate commerce, that is, they may not regulate or restrain that which from its nature should be under the control of the one authority and be free from restriction save as it is governed in the manner that the national legislature constitutionally ordains. This limitation applies to the exertion of the State’s taxing power as well as to any other interference by the State with the essential freedom of in- ^ee, also, Eureka Pipe Line Co. v. Hallanan, 257 U.S. 265; United Fuel Gas Co. v. Hallanan, 257 U.S. 277; Dahnke-W alker Milling Co. n. Bondurant, 257 U.S. 282; Lernke v. Farmers Grain Co., 258 U.S. 50; Hill n. Wallace, 259 U.S. 44, 69; Board of Trade v. Olsen, 262 U.S. 1, 37, 38, 41. MINNESOTA v. BLASIUS. Opinion of the Court. 9 1 terstate commerce. Thus, the States cannot tax interstate commerce, either by laying the tax upon the business which constitutes such commerce or the privilege of engaging in it, or upon the receipts, as such, derived from it.2 Similarly, the States may not tax property in transit in interstate commerce.3 But, by reason of a break in the transit, the property may come to rest within a State and become subject to the power of the State to impose a non-discriminatory property tax. Such an exertion of state power belongs to that class of cases in which, by virtue of the nature and importance of local concerns, the State may act until Congress, if it has paramount authority over 'the subject, substitutes its own regulation.4 The “ crucial question,” in determining whether the State’s taxing power may thus be exerted, is that of “continuity of transit.” Carson Petroleum Co. v. Vial, 279 U.S. 95, 101. If the interstate movement has not begun, the mere fact that such a movement is contemplated does not withdraw the property from the State’s power to tax it. Coe v. Errol, 116 U.S. 517; Diamond Match Co. v. Ontonagon, 188 U.S. 82. If the interstate movement has begun, it may be regarded as continuing, so as to maintain the immunity of the property from state taxation, despite temporary interruptions due to the necessities of the journey or for the purpose of safety and convenience in the 3 Robbins v. Shelby Taxing District, 120 U.S. 489; Fargo v. Michi- gan, 121 U.S. 230; Philadelphia & Southern Mail S.S. Co. v. Penn- sylvania, 122 U.S. 326; Minnesota Rate Cases, 230 U.S. 352, 400; Pullman Co. v. Richardson, 261 U.S. 330, 338; Sprout v. South Bend, 277 U.S. 163; New Jersey Telephone Co. v. Tax Board, 280 U.S. 338; Anglo-Chilean Corp. v. Alabama, 288 U.S. 218. 8 Coe y. Errol, 116 U.S. 517; Kelley v. Rhoads, 188 U.S. 1; Minnesota Rate Cases, 230 U.S. 352, 400, 401; Eureka Pipe Line Co. v. Hal-lanan, 257 U.S. 265; United Fuel Gas Co. v. Hallanan, 257 U.S. 277; Champlain Co. v. Brattleboro, 260 U.S. 366; Hughes Bros. Co. v. Minnesota, 272 U.S. 469; Carson Petroleum Co. v. Vial, 279 U.S. 95. * Minnesota Rate Cases, 230 U.S. 352, 400, 402, et seq. 10 290 U.S. OCTOBER TERM, 1933. Opinion of the Court. course of the movement. Coe v. Errol, supra; Kelley v. Rhoads, 188 U.S. 1; Champlain Co. v. Brattleboro, 260 U.S. 366. Formalities, such as the forms of billing, and mere changes in the method of transportation do not affect the continuity of the transit. The question is always one of substance, and in each case it is necessary to consider the particular occasion or purpose of the interruption during which the tax is sought to be levied. Champlain Co. v. Brattleboro, supra, p.377; Southern Pacific Terminal Co. v. Interstate Commerce Commn, 219 U.S. 498; Texas & N. 0. R. Co. v. Sabine Tram Co., 227 U.S. Ill; Carson Petroleum Co. v. Vial, supra. The mere power of the owner to divert the shipment already started does not’ take it out of interstate commerce if it appears “ that the journey has already begun in good faith and temporary interruption of the passage is reasonable and in furtherance of the intended transportation.” Hughes Bros. Co. v. Minnesota, 272 U.S. 469, 476. Where property has come to rest within a State, being held there at the pleasure of the owner, for disposal or use, so that he may dispose of it either within the State, or for shipment elsewhere, as his interest dictates, it is deemed to be a part of the general mass of property within the State and is thus subject to its taxing power. In Brown v. Houston, 114 U.S. 622, coal mined in Pennsylvania and sent by water to New Orleans to be sold there in the open market, was held to have “ come to its place of rest, for final disposal or use,” and to be “ a commodity in the market of New Orleans,” and thus to be subject to taxation under the general laws of the State; although the property might, after arrival, be sold from the vessel on which the transportation was made for the purpose of shipment to a foreign port. As the Court said in Champlain Co. v. Brattleboro, supra, p. 376, the coal in Brown v. Houston “ was being held for sale to anyone who might MINNESOTA v. BLASIUS. 11 1 Opinion of the Court. wish to buy.” A similar case is Pittsburgh & Southern Coal Co. v. Bates, 156 U.S. 577. In General Oil Co. v. Crain, 209 U.S. 211, the company conducted an oil business at Memphis where it gathered oil from the North and maintained an establishment for its distribution. Part of the oil was deposited in a tank, appropriately marked for distribution in smaller vessels in order to fill orders for oil already sold in Arkansas, Louisiana and Mississippi. The Court held that the first shipment had ended, that the storage of the oil at Memphis for division and distribution to various points was “ for the business purposes and profit of the company”; and that the tank at Memphis had thus become a depot in its oil business for preparing the oil for another interstate journey. This decision followed the principle announced in American Steel & Wire Co. v. Speed, 192 U.S. 500. See Champlain Co. v. Brattleboro, supra, p. 375; Atlantic Coast Line R. Co. v. Standard Oil Co., 275 U.S. 257, 270; Carson Petroleum Co. v. Vial, supra, pp. 104, 105. In Bacon n. Illinois, supra, Bacon, the owner of the grain and the taxpayer, had bought it in the South and had secured the right from the railroads transporting it to remove it to his private grain elevator for the purpose of inspecting, weighing, grading, mixing, etc. He had power to change its ownership, consignee or destination, or to restore the grain, after the processes above mentioned, to the carrier to be delivered at destination in another State according to his original intention. The Court held that, whatever his intention, the grain was at rest within his complete power of disposition, and was taxable; that “ it was not being actually transported and it was not held by carriers for transportation ”; that the purpose of the withdrawal from the carriers “ did not alter the fact that it had ceased to be transported and had been placed in his hands ”; that he had “ the privilege of continuing the 12 290 US. OCTOBER TERM, 1933. Opinion of the Court. transportation under the shipping contracts, but of this he might avail himself or not as he chose. He might sell the grain in Illinois or forward it as he saw fit ” What he had done was to establish a “ local facility in Chicago for his own benefit; and while, through its employment, the grain was there at rest, there was no reason why it should not be included with his other property within the State in an assessment for taxation which was made in the usual way without discrimination.” Id., p. 516. In Champlain Co. v. Brattleboro, supra, p. 375, the court thus restated the point of the Bacon case: “His storing of the grain was not to facilitate interstate shipment of the grain, or save it from the danger of the journey.” “ He made his warehouse a depot for its preparation for further shipment and sale. He had thus suspended the interstate commerce journey and brought the grain within the taxable jurisdiction of the State.” See, also, Susquehanna Coal Co. v. South Amboy, 228 U.S. 665, 669, and Nashville, C. & St. L. R. Co. v. Wallace, 288 U.S. 249,266. The case of Blasius is a stronger one for the state tax than that of Bacon. Here the original shipment was not suspended; it was ended. That shipment was to the South St. Paul stockyards for sale on that market. That transportation had ceased, and the cattle were sold on that market to Blasius, who became absolute owner and was free to deal with them as he liked. He could sell the cattle within the State or for shipment outside the State. He placed them in pens and cared for them awaiting such disposition as he might see fit to make for his own profit. The tax was assessed on the regular tax day while Blasius thus owned and possessed them. The cattle were not held by him for the purpose of promoting their safe or convenient transit. They were not in transit. Their situs was in Minnesota where they had come to rest. There was no federal right to immunity from the tax. Judgment reversed. JACOBS v. UNITED STATES. 13 Argument for the United States. JACOBS ET AL. v. UNITED STATES. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 15. Argued October 13, 1933.—Decided November 6, 1933. 1. The obligation of the United States to pay just compensation for private property taken under its power of eminent domain rests upon the Fifth Amendment, independent of statute or express promise. P. 16. 2. A promise to pay is implied because the duty is imposed by the Amendment. Id. 3. In a suit under the Tucker Act to recover just compensation for property taken by the Government, there may be claimed and allowed, in the form of interest, such addition to the value of the property at the time of the taking as will produce the full equivalent of that value paid contemporaneously with the taking. P. 16. 4. This is not a claim for interest within the meaning of Jud. Code § 177. P. 17. 5. United States v. North American Co., 253 U.S. 330, distinguished. P. 18. 63 F. (2d) 326, reversed. Certiorari, 289 U.S. 719, to review a judgment of the Circuit Court of Appeals reversing the District Court as respects allowance of interest in a suit for just compensation brought under the Tucker Act. Mr. Charles C. Moore for petitioners. Solicitor General Biggs, with whom Assistant Attorney General Wideman and Messrs. William W. Scott and W. S. Ward were on the brief, for the United States. The rule has frequently been declared that in the absence of an express agreement or statutory authority, interest may not be allowed on a claim against the United States. Although this rule is unquestioned, its application in “ just compensation ” cases is a matter of difficulty. 14 290 U.S. OCTOBER TERM, 1933. Argument for the United States. The present case is a suit under the Tucker Act based upon an implied contract. United States n. North American Co., 253 U.S. 330, was just such a case and is direct authority for the position that the claimants here are not entitled to interest. In several more recent cases, interest has been allowed in suits brought under the Tucker Act. Liggett Ac Myers Co. v. United States, 274 U.S. 215; Phelps v. United States, 274 U.S. 341. But these have all been cases where the taking was under the Lever Act, or a similar statute expressly authorizing the payment of 11 just compensation.” Although they decide that “ just compensation ” includes interest, it does not necessarily follow that interest must be paid on a claim based on an implied contract. There is language in some of these cases, particularly the Phelps case, which is difficult to reconcile with the decision in the North American case. In the Phelps case, while the taking was under the Lever Act, the claim was not prosecuted under the procedure provided by that act. Phelps brought his suit in the Court of Claims, a court which had no jurisdiction of a claim under § 10 of the Lever Act. United States v. Pfitsch, 256 U.S. 547. This Court held that the claim was founded on the Fifth Amendment and that there was an implied obligation to make just compensation. If the decision stood on this ground alone, it might be reconcilable with the North American case, which was distinguished in the opinion. But this Court also held that the owner’s claim was one arising out of implied contract, but that, nevertheless, § 177 of the Judicial Code did not prohibit the inclusion of interest, because the claim was not for interest within the meaning of that section. The Liggett & Myers case was also a suit in the Court of Claims under the Tucker Act. This Court held that the claimant’s property was taken by eminent domain and that its just compensation included interest. 15 JACOBS v. UNITED STATES. 13 Opinion of the Court. If the rule of the North American case is still to be followed, the judgment below should be affirmed. Whether that rule should be modified in view of the reasoning in the Phelps case and in other cases is a question for the consideration of this Court. The Solicitor General in his oral argument stated that in his opinion the compensation awarded the owner should be the same whether he was plaintiff or defendant, and that this case could not in principle be distinguished from the Phelps and Liggett & Myers cases. Mr. Chief Justice Hughes delivered the opinion of the Court. Petitioner Jacobs and the testator of petitioner Gunter owned farms lying along Jones Creek, a tributary of the Tennessee River, in Jackson County, Alabama. Across this river the United States constructed Widow’s Bar Dam under authority of Acts of Congress, 39 Stat. 399; 40 Stat. 1282. Surveys by the Government showed that the construction of the dam caused an increase in the occasional overflows of petitioners’ lands and negotiations followed for the purchase of easements of flowage. Offers of settlement being deemed to be inadequate, petitioners brought separate suits under the Tucker Act, 28 U.S.C., § 41 (20), to recover compensation for the property taken. The Circuit Court of Appeals, reversing the judgment of the District Court in the suit of Jacobs, held that he was entitled to compensation. 45 F. (2d) 34. Thereupon, the two suits were consolidated and petitioners had judgment. The District Court found that they were entitled to the amount of damage caused by the construction of the dam as of the date of its completion (October 1, 1925), “together with interest thereon at 6 per cent, from the date of said taking until now as just compensation under the Fifth Amendment to the Constitution of the United 16 OCTOBER TERM, 1933. Opinion of the Court. 290 U.S. States.” On appeal by the Government the Circuit Court of Appeals held that interest was not recoverable. 63 F. (2d) 326. This Court granted certiorari. 289 U.S. 719. The only question before us is as to the right to the item of interest. The Government contemplated the flowage of the lands, that damage would result therefrom, and that compensation would be payable. A servitude was created by reason of intermittent overflows which impaired the use of the lands for agricultural purposes. 45 F. (2d) p. 37; 63 F. (2d) p. 327. There was thus a partial taking of the lands for which the Government was bound to make just compensation under the Fifth Amendment. United States v. Cress, 243 U.S. 316, 327-329; United States v. Lynah, 188 U.S. 445, 470; Hurley v. Kincaid, 285 U.S. 95, 104. The Circuit Court of Appeals, distinguishing the present suits from condemnation proceedings instituted by the Government, held that the suits were founded upon an implied contract and hence that interest could not be allowed, citing United States v. North American Co., 253 U.S. 330. This ruling cannot be sustained. The suits were based on the right to recover just compensation for property taken by the United States for public use in the exercise of its power of eminent domain. That right was guaranteed by the Constitution. The fact that condemnation proceedings were not instituted and that the right was asserted in suits by the owners did not change the essential nature of the claim. The form of the remedy did not qualify the right. It rested upon the Fifth Amendment. Statutory recognition was not necessary. A promise to pay was not necessary. Such a promise was implied because of the duty to pay imposed by the Amendment. The suits were thus founded upon the Constitution of the United States. 28 U.S.C. 41 (20). / The amount recoverable was just compensation, not inadequate compensation. The concept of just compensa- JACOBS v. UNITED STATES. Opinion of the Court. 17 13 tion is comprehensive and includes all elements, 11 and no specific command to include interest is necessary when interest or its equivalent is a part of such compensation.” The owner is not limited to the value of the property at the time of the taking; “ he is entitled to such addition as will produce the full equivalent of that value paid contemporaneously with the taking.” Interest at a proper rate “ is a good measure by which to ascertain the amount so to be added.” Seaboard Air Line R. Co. v. United States, 261 U.S. 299, 306. That suit was brought by the owner under § 10 of the Lever Act, which, in authorizing the President to requisition property for public use and to pay just compensation, said nothing as to interest. But the Court held that the right to just compensation could not be taken away by statute or be qualified by the omission of a provision for interest where such an allowance was appropriate in order to make the compensation adequate. See, also, United States v. Rogers, 255 U.S. 163, 169. The principle was restated in Phelps v. United States, 274 U.S. 341. There the suit was brought in the Court of Claims, and that court gave judgment for the value of the property as it was found to be at the time of the requisition. Plaintiffs insisted that they were entitled to an additional amount to produce the equivalent of the value of the property “ paid contemporaneously ” and that, for this purpose, interest as a reasonable measure should be allowed. This Court sustained the claim. The Court held that judgment in 1926 for the value of the use of the property in 1918 or 1919, without more, was not sufficient to constitute just compensation; that tlie claim was not for “ interest ” within the meaning of § 177 of the Judicial Code (28 U.S.C. 284) and that that provision did not preclude the recovery of the additional amount asked. To the same effect are Brooks-Scanlon Corp. v. United States, 15459°—34----2 18 OCTOBER TERM, 1933. Syllabus. 290 U.S. 265 U.S. 106, 123; Liggett & Myers Co. v. United States, 274 U.S. 215. The case of United States v. North American Co., supra., cannot be regarded as establishing a different rule for the instant case. See Seaboard Air Line R. Co. v. United States, supra, p. 305; Phelps n. United States, supra, pp. 343,344. The North American case rested upon its special facts. There the original taking was tortious and created no liability on the part of the Government. Subsequent action was held to create a liability which rested upon an implied contract. The Court said that the suit was not founded upon the Fifth Amendment. 253 U.S. pp. 334, 335. Suits brought to enforce the constitutional right to just compensation are governed by the later decisions which are directly in point. The judgment of the Circuit Court of Appeals is reversed and the cause is remanded for further proceedings in conformity with this opinion. Reversed. MISSOURI et al. v. FISKE et al. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 27. Argued October 18, 1933.—Decided November 6, 1933. 1. A State may waive, by appearing, its immunity as a sovereign from being sued by individuals. P. 24. 2. But an intervention in a suit pending in a federal court, limited to a request of the State that securities involved in that suit be not distributed but be held in the registry until a claim of the State in regard to them may be adjudicated in a proceeding begun by the State in its own court, is not such an appearance as will subject the State to a litigation of the claim in the federal court. P. 25. 3. The Eleventh Amendment is an explicit limitation upon the judicial power of the United States, and applies to equitable demands and remedies as well as to suits for money judgments. Pp. 25, 27. MISSOURI v. FISKE. 19 18 Argument for Respondents. 4. Even for the protection of its own decree, and of property rights thereby determined quasi in rem, a federal court can not entertain a supplemental and ancillary bill against a State which. has not appeared in the litigation and does not consent to be sued. P. 27. 5. The claim that a decree of a federal court adjudicating the ownership of private property estops the State, though not a party, from reopening the question in later inheritance tax proceedings in its own court, and that the decree should be given that effect as a matter of federal right, can be set up in the state courts, and if it be there finally denied, the decision may be reviewable by this Court. P. 29. 62 F. (2d) 150, reversed. Certiorari, 289 U.S. 720, to review the reversal of a decree dismissing a bill against the State of Missouri to enjoin it from prosecution of a proceeding in the Probate Court. The Attorney General, and other law officials of the State were joined as defendants in the courts below. One of these, Miller, Circuit Attorney, joined with the State in petitioning for certiorari. Mr. Roy McKittrick, Attorney General of Missouri, and Messrs. Gilbert Lamb and Powell B. McHaney, Assistant Attorneys General, submitted for petitioners. Mr. G. A. Buder, Jr., with whom Mr. Oscar E. Buder was on the brief, for respondents. Where a court of the United States is acting in a manner ancillary to a decree which it has rendered in a cause over which it had jurisdiction, the Eleventh Amendment does not prevent it from granting relief against a State. Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273; Prout v. Starr, 188 U.S. 537. In construing a provision of the Constitution, the Court should inquire into and consider the origin of the provision and the history of the period during which it was enacted, in order to determine its true purpose. Prigg n. Pennsylvania, 16 Pet. 539, 610-611; Rhode Island v. 20 OCTOBER TERM, 1933. Argument for Respondents. 290 U.S. Massachusetts, 12 Pet. 657, 723; Knowlton v. Moore, 178 U.S. 41, 95; South Carolina v. United States, 199 U.S. 437, 456-7; Legal Tender Cases, 12 Wall. 457, 560. The purpose of the Eleventh Amendment was only to prevent the courts of the United States from rendering money judgments against the respective States in favor of private individuals. It was not conceived to deprive the federal courts of jurisdiction over the respective States. Cohens v. Virginia, 6 Wheat. 264, 406. Charles Warren, The Supreme Court in United States History, vol. 1, pp. 93-102. When a party intervenes in litigation, he does so in recognition of the jurisdiction of the court and the propriety of all orders and rulings of the court prior to the intervention. French v. Capen, 105 U.S. 509, 525; Commercial Electrical Co. v. Curtis, 288 Fed. 657, 659; Rice v. Durham Water Co., 91 Fed. 433, 434. The removal of a case to the Supreme Court of the United States for review of a judgment in favor of a State does not constitute the commencement or prosecution of a suit against the State within the meaning of the Eleventh Amendment. Cohens v. Virginia, 6 Wheat. 264, 409-410. The Eleventh Amendment merely confers a privilege, which the State may waive by entering its voluntary appearance and submitting its rights to a federal court. Clark v. Barnard, 108 U.S. 436, 447-448; Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273, 284, 291-292; Cunningham v. Macon & Brunswick R. Co., 109 U.S. 446, 451-452. Where property is in the custody of a court, any question which arises concerning the right of a State to tax such property or to enforce a tax lien against it must be presented to and decided by the court having! such custody. In re Tyler, 149 U.S. 164, 182-3. MISSOURI v. FISKE. 21 18 Opinion of the Court. The main litigation, to which the present matter is ancillary, was in the nature of an action in rem, and the property against which the State seeks to enforce its tax lien was and is within the custody of the District Court. Franz v. Buder, 11 F. (2d) 854, 859. While the state courts and the courts of the United States have concurrent jurisdiction, they are parts of entirely separate systems of jurisprudence, as much as the courts of two foreign sovereign powers, and neither should interfere with the jurisdiction of the other, especially where one has acquired jurisdiction over, or custody of, specific property. Covell v. Heyman, 111 U.S. 176,182-3; Ponzi n. Fessenden, 258 U.S. 254, 260-261. Mr. Chief Justice Hughes delivered the opinion of the Court. By an ancillary and supplemental bill of complaint in the District Court of the United States, respondents sought an injunction against the State of Missouri restraining the State from prosecuting certain proceedings in the Probate Court of the City of St. Louis in relation to the estate of Sophie Franz, deceased. The State appeared specially and moved to dismiss the bill upon the ground, among others, that it was a suit against the State, which had not consented to be sued, in violation of the Eleventh Amendment of the Federal Constitution. The District Judge granted the motion upon that ground. The Circuit Court of Appeals reversed the order of dismissal, holding that the Eleventh Amendment was inapplicable, in the view that the ancillary and supplemental bill had been brought to prevent an interference with the jurisdiction of the federal court. 62 F. (2d) 150. The case comes here on certiorari, 289 U.S. 720. The circumstances are these: By the will of Ehrhardt D. Franz, who died in 1898, his property was left to his 22 290 UK OCTOBER TERM, 1933. Opinion of the Court. wife, Sophie Franz, for life, with remainder to his ten children. The will was probated in the Probate Court of the City of St. Louis. In 1909, Sophie Franz transferred certain securities, in part belonging to her husband’s estate, to trustees to hold during her life. On its creation, the trust embraced shares, belonging to her husband’s estate, which had been increased by stock dividends; later, these shares were exchanged for shares of a successor corporation and these were further increased by stock dividends There has been protracted litigation in relation to this trust and the property held by the trustees. The present suit was brought, in 1924, in the District Court of the United States, by one of the sons of Ehrhardt D. Franz, to determine and quiet his remainder interest and to obtain an accounting and security for his protection. Indispensable parties (owners of other remainder interests) being absent, the original bill was dismissed. Franz n. Buder, 11 F. (2d) 854, 858. An amended bill was filed and the present respondents, who are children of Ehrhardt D. Franz and not residents of Missouri, were brought in with others. On an ancillary bill, it appearing that the federal court had first acquired jurisdiction over the subject matter in an action quasi in rem, defendants Sophie Franz and her trustees were enjoined from prosecuting a suit in the Circuit Court of the City of St. Louis for the determination of the same issues. Franz v. Franz, 15 F. (2d) 797. The present suit in the federal court then proceeded to decree, in 1927, which, with modifications as to security and costs, was affirmed by the Circuit Court of Appeals in the following year. Buder v. Franz, 27 F. (2d) 101. There is a question between the parties here as to the scope of this decree, but we may assume, for the present purpose, that this decree, as stated by the Circuit Court of Appeals in the decision under review, 62 F. (2d) pp. MISSOURI v. FISKE. 23 18 Opinion of the Court. 151, 153, 154, determined the rights of the present respondents by virtue of their remainders under the will of Ehrhardt D. Franz. The decree, as thus construed, determined that certain shares, with their increase through stock dividends, were corpus of the estate of Ehrhardt D. Franz, and not income, and hence that Sophie Franz had only a life interest. Id., 27 F. (2d) pp. 105, 113, 114. Later, in 1930, Sophie Franz died, and her estate is in the course of administration in the Probate Court of the City of St. Louis. Her executor, in view of the decree of the federal court, did not include the shares above mentioned in his inventory of her estate. Thereupon, in 1931, the State of Missouri procured the issue, on behalf of the State, of a citation in the Probate Court to compel the executor to inventory these shares as assets of the estate of Sophie Franz. The State of Missouri then moved in the federal court for leave to intervene. The State set forth the issue of the citation in the Probate Court; that the respondents, and others in interest, were seeking in the federal court to obtain distribution of the shares of stock in question, and that, to protect the State’s right to inheritance taxes, intervention was necessary to oppose that distribution pending the determination of the issues involved in the proceeding in the Probate Court. The application for intervention was granted. The State then filed its intervening petition alleging that the decree of the federal court, while finding the interests in remainder of certain children of Ehrhardt D. Franz, made no finding as to other children, and that the latter, including the present respondents, although remaindermen, had “ prior to the entry of said decree, by diverse acts and by pleadings filed in this cause, extinguished, transferred and assigned their remainder interest to the life tenant, Sophie Franz that the stock in question 11 should have been inventoried ” and was subject “ to the assessment and collection of inheritance taxes 24 OCTOBER TERM, 1933. Opinion of the Court. 290 U.S. of the State of Missouri under the terms of the will of Sophie Franz,” and that for these taxes the State had a lien upon this stock. The petition prayed that a portion of the stock should be transferred to the registry of the federal court to be held until the Probate Court determined whether the stock should have been inventoried by the executor of the estate of Sophie Franz. The present respondents (with others) answered the petition in intervention denying that the decree of the federal court had been limited as alleged and setting up their rights under the decree as res judicata. They asked that the petition be dismissed and that their motions for distribution be sustained. Shortly before filing this answer the present respondents brought their ancillary and supplemental bill of complaint to enjoin the State of Missouri from “ prosecuting further the said citation in the Probate Court ” and “ from seeking or obtaining any order, decree, or judgment therein ” until the further direction of the District Court. The Circuit Court of Appeals, in sustaining the jurisdiction of the District Court to entertain the bill for this purpose, stated that the extent to which that jurisdiction should be exercised was “ the protection of the jurisdiction and decrees of the trial court ”; that it did not extend to matters not involved in the main litigation. 62 F. (2d) p. 157. First. The first question is whether the State has waived the immunity it now claims. Immunity from suit under the Eleventh Amendment is a personal privilege which may be waived. Clark v. Barnard, 108 U.S. 436, 447, 448; Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273, 284. It may be waived by a voluntary proceeding in intervention (Clark v. Barnard, supra) and the question is as to the effect of the State’s application to intervene in this suit. The Circuit Court of Appeals held that it did not 25 18 MISSOURI v. FISKE. Opinion of the Court. amount to a waiver, but the respondents press the question in supporting the decree under review. While the motion of the State was for leave to intervene as “ a party defendant,” the Circuit Court of Appeals pointed out that by the petition in intervention the State did not seek the determination “ of any rights or title,” that it expressly pleaded -f that such determination will take place in the Probate Court,” and that the only relief asked was that the federal court should not distribute the stock from the trustees to the present respondents but should “ place it in its registry to abide the result of the determination of the rights of the State by the Probate Court.” The Circuit Court of Appeals was of the opinion that the only purpose and result of the intervention would be to retain the stock within Missouri in a place where it could be made to respond to the tax claims of the State if these claims were upheld. In determining the question presented to it on the appeal, the court was not concerned with the propriety of allowing the intervention for that purpose or with its legal classification as pro interesse suo or otherwise. As only a “ temporary impounding ” was sought, which was “ in no sense a matter of right, but rather partakes of grace,” the court concluded that the intervention was too limited in character to constitute a waiver of the immunity given by the Amendment, if that immunity would otherwise exist. 62 F. (2d) pp. 152, 153. We think that the Circuit Court of Appeals was right. Second. The Eleventh Amendment is an explicit limitation of the judicial power of the United States. “ The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State or by citizens or subjects of any foreign State.” However important that power, it cannot extend into the forbidden sphere. Considerations of convenience open no 26 290 US. OCTOBER TERM, 1933. Opinion of the Court. avenue of escape from the restriction. The “ entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given.” Ex parte New York, 256 U.S. 490, 497. Such a suit cannot be entertained upon the ground that the controversy arises under the Constitution or laws of the United States. Hans v. Louisiana, 134 U.S. 1,10; Palmer n. Ohio, 248 U.S. 32, 34; Duhne v. New Jersey, 251 U.S. 311, 313, 314. The ancillary and supplemental bill is brought by the respondents directly against the State of Missouri. It is not a proceeding within the principle that suit may be brought against state officers to restrain an attempt to enforce an unconstitutional enactment. That principle is that the exemption of States from suit does not protect their officers from personal liability to those whose rights they have wrongfully invaded. Tindal v. Wesley, 167 U.S. 204; Prout v. Starr, 188 U.S. 537, 543; Gunter v. Atlantic Coast Line R. Co., supra; Ex parte Young, 209 U.S. 123, 150 et seq. Here, respondents are proceeding against the State itself to prevent the exercise of its authority to maintain a suit in its own court. The proceeding by ancillary and supplemental bill to restrain the State from this exercise of authority is unquestionably a 11 suit.” Said Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 407, 408: “ What is a suit? We understand it to be the prosecution, or pursuit, of some claim, demand, or request. In law language, it is the prosecution of some demand in a Court of justice. ... To commence a suit is to demand something by the institution of process in a Court of justice; and to prosecute the suit, is, according to the common acceptation of language, to continue that demand. By a suit commenced by an individual against a State, we should understand process sued out by that individual against MISSOURI v. FISKE. 27 18 ' Opinion of the Court. the State for the purpose of establishing some claim against it by the judgment of a Court; and the prosecution of that suit is its continuance.” The fact that the motive for the adoption of the Eleventh Amendment was to quiet grave apprehensions that were extensively entertained with respect to the prosecution of state debts in the federal courts cannot be regarded, as respondents seem to argue, as restricting the scope of the Amendment to suits to obtain money judgments. The terms of the Amendment, notwithstanding the chief motive for its adoption, were not so limited. Expressly applying to suits in equity as well as at law, the Amendment necessarily embraces demands for the enforcement of equitable rights and the prosecution of equitable remedies when these are asserted and prosecuted by an individual against a State. This conception of the Amendment has had abundant illustration. Louisiana v. Jumel, 107 U.S. 711, 720; Hagood v. Southern, 117 U.S. 52, 67; In re Ayers, 123 U.S. 443, 497; Fitts v. McGhee, 172 U.S. 516, 529. Respondents’ bill asserts a right to maintain their interests as remaindermen under the will of Ehrhardt D. Franz with respect to certain shares of stock against an attempt of the State to lay inheritance taxes on these shares as the property of Sophie Franz, the deceased life tenant. In order to enforce this asserted right respondents bring their bill to obtain the equitable remedy of injunction against the State. This is not less a suit against the State because the bill is ancillary and supplemental. The State had not been a party to the litigation which resulted in the decree upon which respondents rely. The State has not come into the suit for the purpose of litigating the rights asserted. Respondents are attempting to subject the State, without its consent, to the court’s process. The question, then, is whether the purpose to protect the jurisdiction of the federal court, and to maintain its 28 290U.S. OCTOBER TERM, 1933. Opinion of the Court. decree against the proceeding of the State in the state court, removes the suit from the application of the Eleventh Amendment. No warrant is found for such a limitation of its terms. The exercise of the judicial power cannot be protected by judicial action which the Constitution specifically provides is beyond the judicial power. Thus, when it appears that a State is an indispensable party to enable a federal court to grant relief sought by private parties, and the State has not consented to be sued, the court will refuse to take jurisdiction. Cunningham v. Macon & Brunswick R. Co., 109 U.S. 446, 451, 457; In re Ayers, supra, p. 489; Christian v. Atlantic & N. C. R. Co., 133 U.S. 233, 244; Stanley v. Schwalby, 147 U.S. 508, 518; South Carolina v. Wesley, 155 U.S. 542, 545; Belknap v. Schild, 161 U.S. 10, 20. And if a State, unless it consents, cannot be brought into a suit by original bill, to enable a federal court to acquire jurisdiction, no basis appears for the contention that a State in the absence of consent may be sued by means of an ancillary and supplemental bill in order to enforce a decree. The fact that a suit in a federal court is in rem, or quasi in rem, furnishes no ground for the issue of process against a non-consenting State. If the State chooses to come into the court as plaintiff, or to intervene, seeking the enforcement of liens or claims, the State may bfe permitted to do so, and in that event its rights will receive the same consideration as those of other parties in interest. But when the State does not come in and withholds its consent, the court has no authority to issue process against the State to compel it to subject itself to the court’s judgment, whatever the nature of the suit. See The Siren, 7 Wall. 152, 154; The Davis, 10 Wall. 15, 19; Georgia n. Jesup, 106 U.S. 458, 462; Cunningham v. Macon & Brunswick R. Co., supra, p. 452. Ex parte New York, supra, pp. 497-500. 29 18 MISSOURI v. FISKE. Opinion of the Court. We express no opinion upon the question whether the decree of the District Court, entered during the lifetime of Sophie Franz, the life tenant, in this suit to which she, her trustees and the remaindermen were parties, can be regarded as binding upon the State of Missouri with respect to its subsequent claim for inheritance taxes against the shares in controversy as a part of the life tenant’s estate. That question is not before us. Whatever may be found to be the effect of this decree in that relation, the result is the same so far as the present question of the right of respondents to bring this bill against the State is concerned. If the State, by reason of the fact that it was not a party to the litigation, is not bound by the decree, it is manifestly free to litigate its claim to the taxes in the proceeding it has instituted in its own court. United States v. Lee, 106 U.S. 196, 222; Tinddl v. Wesley, supra, p. 223; McClellan v. Carland, 217 U.S. 268, 282. But if the decree of the federal court can be considered as determining the ownership of the shares so as to bind the State in later tax proceedings upon the death of the life tenant and there is a federal right to have that effect given to the decree, that federal right can be specially set up and claimed in the proceeding in the state court, and, if the right is finally denied, the decision may be the subject of review by this Court in case the appropriate procedure is followed. Waterman v. Canal-Louisiana Bank Co., 215 U.S. 33, 46. See Tilt v. Kelsey, 207 U.S. 43. The contention that the question of ownership of the shares has been finally determined by the federal court affords no ground for the conclusion that the federal court may entertain a suit against the State, without its consent, to prevent the State from seeking to litigate that question in the state court. The decree of the Circuit Court of Appeals is reversed and the cause is remanded to the District Court with directions to dismiss the ancillary and supplemental bill. Reversed. 30 290U.S. OCTOBER TERM, 1933. Opinion of the Court. EX PARTE PORESKY. MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS. No. —, original. Motion submitted October 2, 1933.—Decided November 6, 1933. 1. When a bill for a preliminary injunction to restrain the enforcement of a state statute fails to set up a substantial federal question and no other ground of jurisdiction appears, a single district judge holding the district court has authority to dismiss it for the want of jurisdiction, without calling the three-judge court, under Jud. Code § 266, to hear the injunction application. P. 31. 2. The proposition that c. 90, Gen. Laws Mass., in requiring the posting of automobile liability insurance as a condition to registration of cars and issuance of license plates, for cars owned and operated wholly within the State, violates the Fourteenth Amendment, held clearly without merit in view of previous decisions by this Court. ' P. 32. Motion denied. Application for leave to file petition for a writ of mandamus. Mr. Joseph Poresky, pro se. Per Curiam. Leave is asked to file a petition for a writ of mandamus requiring District Judge Elisha H. Brewster, or other competent Judge, to call to his assistance two other Judges for the purpose of hearing and determining petitioner’s application for an interlocutory injunction, as directed by statute. Jud. Code, § 266; 28 U.S.C. 380. Petitioner brought suit in the District Court of the United States against Joseph E. Ely, Governor, Joseph E. Warner, Attorney General, and Morgan T. Ryan, Registrar of Motor Vehicles, of Massachusetts, to enjoin the enforcement of chapter 90 of the General Laws of Massa- EX PARTE PORESKY. 31 30 Opinion of the Court. chusetts, relating to “ compulsory automobile liability insurance,” upon the ground that the statute violates the Fourteenth Amendment of the Constitution of the United States. Petitioner alleged in his complaint that he is a citizen of Massachusetts; that the Registrar of Motor Vehicles had refused registration and number plates for his car unless he complied with the statute, under which he “ must first post either bond or cash of $5,000, or procure insurance ”; that the statute “ is only applicable to cars owned and operated within the State and does not include cars in interstate traffic ”; that he cannot comply with the statute; that to disregard it would bring him fine and imprisonment; that he has no adequate remedy at law; and that his inability to comply with the statute “ is the Registrar’s only reason for refusing him registration and number plates.” The District Judge dismissed the complaint as to Governor Ely and Attorney General Warner upon the ground that they were improperly joined as parties, and later he dismissed the complaint as to the defendant Ryan, Registrar of Motor Vehicles, for the want of jurisdiction, as there was no diversity of citizenship and no substantial federal question. The District Judge recognized the rule that if the court was warranted in taking jurisdiction and the case fell within § 266 of the Judicial Code, a single judge was not authorized to dismiss the complaint on the merits, whatever his opinion of the merits might be. Ex parte Northern Pacific Ry. Co., 280 U.S. 142,144; Stratton v. St. Louis jS.W. Ry. Co., 282 U.S. 10, 15. But the provision requiring the presence of a court of three judges necessarily assumes that the District Court has jurisdiction. In the absence of diversity of citizenship, it is essential to jurisdiction that a substantial federal question should be presented. “ A substantial claim of unconstitutionality is necessary for the application of § 266.” Ex parte Buder, 32 290 U.S. OCTOBER TERM, 1933. Opinion of the Court. 271 U.S. 461, 467; Louisville & Nashville R. Co.v. Garrett, 231 U.S. 298, 304. That provision does not require three judges to pass upon this initial question of jurisdiction. The existence of a substantial question of constitutionality must be determined by the allegations of the bill of complaint. Mosher v. Phoenix, 287 U.S. 29, 30; Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105. The question may be plainly unsubstantial, either because it is “ obviously without merit ” or because “ its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.” Levering & Garrigues Co. n. Morrin, supra; Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288; McGilvra v. Ross, 215 U.S. 70, 80. While it is appropriate that a single District Judge to whom application is made for an interlocutory injunction restraining the enforcement of a state statute should carefully scrutinize the bill of complaint to ascertain whether a substantial question is presented, to the end that the complainant should not be denied opportunity to be heard in the prescribed manner upon a question that is fairly open to debate, the District Judge clearly has authority to dismiss for the want of jurisdiction when the question lacks the necessary substance and no other ground of jurisdiction appears. Such was his authority in the instant case, in view of the decisions of this Court bearing upon the constitutional authority of the State, acting in the interest of public safety, to enact the statute assailed. Hendrick n. Maryland, 235 U.S. 610, 622; Continental Baking Co. v. Woodring, 286 U.S. 352, 357, 365, 366; Hess v. Pawloski, 274 U.S. 352, 356. See, also, Opinion of the Justices, 251 Mass. 569; 147 N.E. 681; Opinion of the Justices, 81 N.H. 566; 129 Atl. 117. Leave to file petition for writ of mandamus is denied. UNITED STATES v. REILY. 33 Statement of the Case. UNITED STATES v. REILY. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. No. 31. Argued October 18, 19, 1933.—Decided November 6, 1933. The Act of June 21, 1906, provides: “All restrictions as to sale and incumbrance of all lands, inherited and otherwise, of all adult Kickapoo Indians, and of all Shawnee” and other named Indians “ who have heretofore been or are now known as Indians of said tribes, affiliating with said Kickapoo Indians now or hereafter nonresident in the United States, who have been allotted land in Oklahoma or Indian Territory are hereby removed.” Then follow provisos that “any such Indian allottee who is a nonresident of the United States may lease his allotment without restriction for a period not exceeding five years and that the parent or next of kin having care and custody of a minor allottee may lease his allotment, etc. Held: 1. The Act does not remove the restriction on alienation from an allotment during the life of the allottee. P. 38. 2. The qualifying phrase “ now or hereafter nonresident in the United States ” applies to the Kickapoos as well as to the other Indians named. P. 39. 3. Where a direct allottee died a nonresident and the land descended to her son, who, though formerly a nonresident, resided at the time of her death and thereafter in the United States with the people of his tribe, the restriction on alienation of the inherited land was not removed by the Act; for at no time did the heir’s nonresidence and his ownership of the land coincide. P. 40. 62 F. (2d) 621, reversed. Certiorari, 289 U.S. 721, to review the affirmance of a decree dismissing a bill brought by the United States to enjoin the respondent Reily from trespassing upon an Indian’s inherited allotment, and from disturbing lessees in possession, under color of a deed from the Indian owner, and from prosecuting the lessees and certain federal administrative officials by certain civil proceedings in a state court. 15459’—34—3 34 290 UK OCTOBER TERM, 1933. Opinion of the Court. Assistant Attorney General Sweeney, with whom Solicitor General Biggs and Mr. Pedro Capo-Rodriguez were on the brief, for the United States. Mr. F. H. Reily, with whom Mr. Mark Goode was on the brief, for respondent. Mr. Justice Van Devanter delivered the opinion of the Court. This suit was brought by the United States to enforce its rights and regulations in respect of allotted Indian land held under a so-called trust patent. The land was allotted, and the trust patent issued, with the express restriction that the land should be inalienable for a designated period, which the President might extend, and that any alienation contrary to the restriction should be absolutely void.1 After the allottee’s death and during the period of restriction, as extended by the President, the heir conveyed part of the land to the defendant. The defendant prevailed in both courts below, 62 F. (2d) 621, and the United States petitioned for certiorari, which this court granted. It is settled, and is conceded, that a restriction on alienation such as is here shown is not personal to the allottee but runs with the land and operates upon the heir the same as upon the allottee.2 So it is apparent the heir’s conveyance was void, unless in some way the restriction was removed before the conveyance was made. The real question is whether the restriction was removed by Congress by the Act of June 21, 1906,3 which will be set forth later on. The material findings of the District Court stand unchallenged and are to the following effect: The allottee, a 1 Acts Feb. 8, 1887, c. 119, § 5, 24 Stat. 388; March 3, 1893, c. 203, Art. IV, 27 Stat. 557. 2 Bowling v. United States, 233 U.S. 528, 535; United States v. Noble, 237 U.S. 74, 80. 3 C. 3504, 34 Stat. 325, 363. UNITED STATES v. REILY. Opinion of the Court. 35 33 Kickapoo Indian woman, and her infant son were members of the Kickapoo tribe of Oklahoma whose lands were allotted in severalty among its members in 1894. Both were then living with the tribe in Oklahoma and each received an allotment from the tribal lands. In 1903 the mother, taking the son with her, moved into the Republic of Mexico and established a residence in a Mexican community or tribe of Kickapoos to be described later on. She continuously maintained that residence and affiliated with that tribe until 1929, when she died intestate, leaving the son as her only heir. The son resided in Mexico until 1920 and then gave up that residence and returned to the Kickapoo Reservation in Oklahoma. Continuously thereafter he made the latter place his residence and home. He was residing there in 1929 when his mother died, in 1930 when he made the conveyance to the defendant, and in 1931 when this suit was begun. In turning to the Act of June 21, 1906, it will be helpful to have in mind the conditions existing when it was enacted. At one time the Kickapoos were a single tribe occupying a treaty reservation in Kansas;4 but through dissensions and migrations they had come in 1906 to comprise three separate communities or tribes having distinct places of abode. One tribe was still located bn the old treaty reservation in Kansas and had been given allotments there.5 Another was located in the Republic of Mexico on a reservation set apart for them by that government. In the main this tribe comprised Kickapoos who had separated from the Kansas tribe and settled in Mexico, some in 1852 and others in 1863.6 There were also later accessions as will appear presently. A third tribe * Treaties of Oct. 24, 1832, 7 Stat. 391; May 18, 1854, 10 Stat. 1078. 8 Treaty of June 28, 1862, 13 Stat. 623. ’Handbook of American Indians, Hodge, Vol. 1, pp. 684, 685; Art. X of Treaty of 1862 just cited; Annual Report of Commissioner of Indian Affairs 1872, title “ Kansas,” subtitle “ Kickapoos.” 36 290 U.S. OCTOBER TERM, 1933. Opinion of the Court. was located in Oklahoma and chiefly comprised Kicka-poos who had left the Mexican tribe and returned to the United States, mostly in 1873.7 A reservation in Oklahoma (then the Indian Territory) was established for them by executive order in 1883.8 The lands in this reservation were allotted among the members of this tribe in 1894,9 the allotment to which this suit relates being one which was made then. Some of the allottees on this reservation removed to Mexico and established a residence with the Mexican tribe; and some of the allottees of neighboring Oklahoma tribes, such as Shawnees, Delawares, Caddos and Wichitas, did likewise. Not infrequently allottees who had gone to the Mexican tribe gave up their residence there and returned to Oklahoma. The migration to and from the Mexican tribe, while intermittent, was continuing when the Act of June 21, 1906, was passed. The part of that act which is material here reads as follows: “All restrictions as to sale and incumbrance of all lands, inherited and otherwise, of all adult Kickapoo Indians, and of all Shawnee, Delaware, Caddo, and Wichita Indians who have heretofore been or are now known as Indians of said tribes, affiliating with said Kickapoo Indians now or hereafter nonresident in the United States, who have been allotted land in Oklahoma or Indian Territory are hereby removed: Provided, That any such Indian allottee who is a nonresident of the United States may lease his allotment without restriction for a period not exceeding five years: Provided further, That the parent or the person next of kin having the care and custody of a minor allottee may lease the allotment of said 7 Annual Report Commissioner of Indian Affairs 1874, title “Kansas,” subtitle “Kickapoos.” 8 Kapler Indian Laws and Treaties, 2d ed., Vol. 1, 844; Annual Report of Commissioner of Indian Affairs 1883, p. 45. 9 Act March 3, 1893, c. 203, 27 Stat. 557. . . - - UNITED STATES v. REILY. 37 33 Opinion of the Court. minor as herein provided, except that no such lease shall extend beyond the minority of said allottee.” In any view of the act its words are not happily chosen. They are wanting in clarity and lend themselves to ambiguity. Both administrative officers and courts have found need for resorting to interpretation and construction when applying the act. In Johnson v. United States, 283 Fed. 954, many conveyances—some by original allottees and some by heirs of such allottees—were assailed by the United States as made in violation of the restriction on alienation, and the defendant relied upon the act as having removed the restriction. Because of the varying facts relating to the several conveyances the act was considered from different angles. The principal question, common to all of the conveyances, was whether the main provision and the two provisos were inconsistent and mutually destructive. The District Court had held that they were, and therefore that the act was ineffective. But the Circuit Court of Appeals disapproved that view and, after observing that if reasonably possible the act should be so construed that the main provision and the provisos could stand together, came to the following conclusion [p. 955]: “The purview discloses plainly and clearly a legislative intention to remove restrictions under given conditions; . . . when the whole paragraph is read with a view of sustaining it in all its parts the word ‘ otherwise,’ in the second line, seems to be in contradistinction to allotment, so that it was clearly intended that all restrictions as to sale and incumbrance of lands, inherited or otherwise acquired (except allotments of surviving allottees), were removed under the conditions named.” In other words, that court construed the main provision removing restrictions under given conditions as not relating to lands acquired by direct personal allotment but only to those acquired in other ways, such as inheritance, 38 OCTOBER TERM, 1933. Opinion of the Court. 290 U.8. devise, etc., and construed the provisos permitting limited leases as relating only to lands acquired by direct personal allotments. On that basis the court proceeded to determine whether the facts shown brought any of the conveyances within the conditions named. As to the conveyances described in eleven out of fifty-four counts the court found that the lands were inherited and the grantors were heirs who came within the classes and conditions fixed in the act. In that connection the court said [p. 956]: “And the counts each allege that the deceased ancestor was an absentee Shawnee allottee, a member of the absentee Shawnee tribe of Indians, that the grantor was his heir and conveyed his inherited interest in his ancestor’s allotment; and the stipulation shows that each grantor was an absentee Shawnee Indian and1 had been allotted lands in his own right. We think it also fairly inferable from the record that the grantors had been allotted lands in Oklahoma or Indian Territory, and that they and their ancestors were affiliated with nonresident Kickapoos.” On these findings the conveyances described in the eleven counts were held valid and the decree of the District Court as to them was reversed. Of the conveyances described in the other counts the court briefly said that the facts obtained from the record did not support the claim of a removal of restrictions, and so the decree of the District Court cancelling those conveyances was affirmed. Both parties acquiesce in and place some reliance on that decision. It is pertinent in so far as it holds that the Act of 1906 did not remove the restriction on alienation from an allotment during the life of the allottee. Under that holding, with which we are in accord, the allotment in question remained subject to the restriction throughout the life of the mother, the original allottee. On other points the facts in the Johnson case and those in this are not alike. In that case none of the heir- UNITED STATES v. REILY. Opinion of the Court. 39 33 grantors was a Kickapoo. All were absentee Shawnees affiliated with the Kickapoos in Mexico. Here the heirgrantor was a Kickapoo permanently residing with the Kickapoos in Oklahoma when he inherited from his mother and continuously thereafter. The defendant insists that the Act of 1906 makes a distinction between Kickapoos and Shawnees, etc., in that it removes the restriction on alienation as to the former regardless of their residence and as to the latter only where they reside outside the United States. No reason for making such a distinction is suggested; nor is any perceived by us. The relation of all these Indians to the United States was the same. All were emerging from the old Indian life—the Kickapoos not in advance of the others. Some of each of the designated tribes had migrated to Mexico and others of each were inclined to do so. It was this migration, accomplished and prospective, which led to the act. In short, the circumstances were such as to suggest that a line of distinction be drawn at residence in or out of the United States and not at membership in one or another of the designated tribes. This we think is what was intended. Although inartificially framed, the act taken as a whole comports with this view quite as well if not better than with the other, and due regard for the status and interests of the Indians affected, which always are to be considered in construing such laws,10 requires that it be preferred and given effect. Therefore we conclude that the qualifying phrase “ now or hereafter nonresident of the United States ” applies to the Kickapoos as well as to the Shawnees, etc. In United States v. Estill, 62 F. (2d) 620, the Circuit Court of Appeals applied the act as we construe it. That suit involved a conveyance by heirs of a Kickapoo who w Jones v. Meehan, 175 U.S. 1, 10-11; Minnesota v. Hitchcock, 185 U.S. 373, 402; United States v. Celestine, 215 U.S. 278, 290; Choate v. Trapp, 224 U.S. 665, 675; Carpenter v. Shaw, 280 U.S. 363, 367. 40 290U.S. OCTOBER TERM, 1033. Opinion of the Court. had received an allotment in the Oklahoma reservation in 1894 and had died in Mexico in 1905. The heirs were Kickapoos who had received allotments in the same reservation in their own right. The court deemed their residence material and gave the matter particular attention. It said: “ The lower court also found, and the proof sustains it, that I-nesh-kin and Nah-she-pe-eth [the heirs] ‘ were adults and residing in the Republic of Mexico on the twenty-first day of June, 1906, and thereafter.’ ” The conveyance was made on a later date. Thus the heirs’ inherited ownership and their residence in Mexico coincided before the conveyance was made. On the facts recited the court ruled that the case came within the act, and accordingly sustained the conveyance. That court disposed of the present case in the belief that its facts “ are not substantially different from the facts in United States v. Estill.” Whether this belief was occasioned by some inadvertence does not appear. But the real fact shown by the evidence, found by the District Court, and not questioned by the defendant, is that the son, although at an earlier time a resident of Mexico, became an actual resident of the Kickapoo reservation in Oklahoma in 1920, and resided there continuously thereafter. The mother, the allottee, died in 1929. Then, and not before, the son became her heir and inherited the land. At no time with him did ownership of the land and nonresidence in the United States coincide. That he had been a nonresident for several years ending nine years before the mother died is not material. During that period he had no right in the land and the restriction was of no concern to him. When later on he inherited the land, nonresidence, the chief condition on which the act made removal of the restriction to depend, was wanting. He was then and thereafter an Indian, resident in the United States among the people of his tribe, and holding the land under the restricted trust patent given to his NATHANSON v. UNITED STATES. Argument for Petitioner. 41 33 mother. In our opinion such a situation was not within but outside the. act, and the heir’s conveyance to the defendant was void. Apparently the act has been a source of much trouble,11 and recently it has been repealed, but with saving clauses protecting rights lawfully acquired under it.12 Decree reversed. NATHANSON v. UNITED STATES. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 39. Argued October 9, 1933.—Decided November 6, 1933. 1. Under the Fourth Amendment, an officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough. P. 46. 2. This principle applies to searches for goods imported in fraud of the tariff law as well as to other cases. P. 47. 63 F. (2d) 937, reversed. Certiorari, 289 U.S. 720, to review the affirmance of a sentence in a prosecution under the National Prohibition Act for unlawful possession of intoxicating liquors. The trial court had refused to exclude evidence for the Government obtained by searching a private dwelling under color of a search warrant. Mr. Frederic M. P. Pearse for petitioner. The warrant was void. The affidavit contained no facts on which to base a finding of probable cause. In “Annual Reports Commissioner of Indian Affairs, 1906, title “ Kick-apoos”; 1911, title “Mexican Kickapoo Indians”; Senate Reports, Vol. A, No. 5, 60 Cong., 1st Sess.; Senate Report No. 710, 72 Cong., 1st Sess.; House Report No. 1901, 72 Cong., 2d Sess. “Act February 17, 1933, c. 97, 47 Stat. 819. 42 OCTOBER TERM, 1933. Argument for the United States. 290U.S. re Rule of Court, Fed. Cas. No. 12,126; United States v. Lefkowitz, 285 U.S. 452; Weeks v. United States, 232 U.S. 383; Byars n. United States, 273 U.S. 28; Go-Bart Importing Co. v. United States, 282 U.S. 344; Cooley, Const. Lim., 7th ed., p. 427. Under § 595 of the Tariff Act, as under the Internal Revenue Acts, an affidavit merely tracking the statute and not setting forth facts from which probable cause can be found, is insufficient. 24 Ops. Atty. Gen. 685; Wagner n. United States, 8 F. (2d) 581; Ripper v. United States, 178 Fed. 24, 26; Woods v. United States, 279 Fed. 706; Schencks v. United States, 2 F. (2d) 185, 187; United States v. Rykowski, 267 Fed. 866, 868, 869; United States v. Pitotto, 267 Fed. 603, 604; United States v. Armstrong, 275 Fed. 506, 508; United States v. Swan, 15 F. (2d) 598, 599. Among the cases which hold that an affidavit under the Tariff Act must contain more than an affirmation of suspicion is United States n. Federal Mail Order Corp., 47 F. (2d) 164, 165. See also In re Chin K. Shue, 199 Fed. 282; Pappas v. Lufkin, 17 F. (2d) 988; and United States v. Clark, 18 F. (2d) 442. The evidence before the magistrate issuing the warrant must be competent and must appear in the supporting affidavits. Grau v. United States, 287 U.S. 124; Wagner n. United States, 8 F. (2d) 581; Giles v. United States, 284 Fed. 208; Poldo v. United States, 55 F. (2d) 866. Assistant Solicitor General MacLean, with whom Solicitor General Biggs was on the brief, for the United States. The same Congress that proposed the Fourth Amendment passed the Act of July 31, 1789, which, practically speaking, has been in force ever since and is virtually the Tariff Act of 1922 as it relates to searches and seizures. From the very beginning, therefore, it was recognized 43 41 NATHANSON v. UNITED STATES. Argument for the United States. that searches and seizures were necessary to maintain revenue and to prevent violations of the customs and navigation laws; and equally so that to be effective they could not await conviction upon proof beyond a reasonable doubt, or the production of prima jade evidence, but that the search was reasonable or permissible if the customs officer acted upon bona fide belief and justified suspicion, or information that appeared to be reliable. Boyd v. United States, 116 U.S. 616, 623-624. Cf. Goldsmith-Grant Co. v. United States, 254 U.S. 505, 510; General Motors Corp. v. United States, 286 U.S. 49, 56, 57; United States n. Federal Mail Order Corp., 47 F. (2d) 164, 165. It is certain the Fourth Amendment did not contemplate that the cellar of a man’s house should afford a safe haven for smuggled goods or constitute a barrier against those authorized and required to find them. It seems, therefore, that good ground may exist for the distinction made in this case by the court below between a case under the revenue acts and a case under the prohibition law. Bookbinder n. United States, 287 Fed. 790, cert, den., 262 U.S. 748. An eyewitness can hardly be expected or required in this class of cases. Locke v. United States, 7 Cranch 339, 347. Searches and seizures under the Prohibition and Espionage Acts, are, as a general statement, intended to procure evidence primarily for the purpose of convicting a defendant, and the warrants may be sworn out by any person producing evidence or making the necessary affidavit. On the other hand, under the Customs and Revenue laws, the primary purpose is to collect revenue, and prevent smuggling, and it is contemplated that the warrant will be applied for by an officer of some standing and experience who ordinarily will act with a reasonable amount of discretion, without being overcome by exces- 44 290 U.S. OCTOBER TERM, 1933. Opinion of the Court. sive zeal or personal prejudice. Besides, to apply the same rule in this class of cases “ would render the provision totally inoperative,” as observed by Chief Justice Marshall in Locke v. United States, supra, p. 16. The fact that the search warrant was obtained and seizure made under the Tariff Act, but that Nathanson was convicted under the Prohibition Act, affords no ground for reversal, nor is the question raised in his behalf. Gouled v. United States, 255 U.S. 298. Mr. Justice McReynolds delivered the opinion of the Court. In the trial court, where he was defendant under a criminal information, petitioner Nathanson duly, but unsuccessfully, challenged the admission as evidence of certain liquors seized under color of a search warrant, issued, he claimed, in violation of the Fourth Amendment. The Circuit Court of Appeals affirmed the judgment against him. Upon complaint of the customs agent in charge, a State judge sent out the questioned warrant. Its pertinent recitals and command follow: 11 Whereas said Francis B. Laughlin has stated under his oath that he has cause to suspect and does believe that certain merchandise, to wit: Certain liquors of foreign origin a more particular description of which cannot be given, upon which the duties have not been paid, or which has otherwise been brought into the United States contrary to law, and that said merchandise is now deposited and contained within the premises of J. J. Nathanson said premises being described as a 2 story frame dwelling located at 117 No. Bartram Ave. . . .; and “ Whereas said Francis B. Laughlin has requested that a warrant issue to him, authorizing him to enter said premises and search for and seize said merchandise: NATHANSON v. UNITED STATES. Opinion of the Court. 45 41 “ Now, therefore, you are commanded, in the name and by the authority of the President of the United States, to enter and search the premises hereinbefore described, in the daytime (if a dwelling house) at any time of the day or night (if other than a dwelling house) and to seize and take into your possession the merchandise hereinbefore described, or so much thereof as may be found, to the end that the same may be dealt with according to law.” The Circuit Court of Appeals said [63 F. (2d) 937,। 938]—“ The appellant contends that the affidavit upon which the search warrant was issued showed no facts upon which to base a finding of probable cause; that the search warrant was therefore illegal; and that the use of the property so seized as evidence in a criminal prosecution amounted to a violation of the protection afforded by the Fourth Amendment to the Constitution. . . . “ Had this warrant issued under authority of the Prohibition Act, it would be invalid, since the affidavit was merely based upon cause to suspect and suspicion. It issued, however, under the authority of [§ 595] the Tariff Act of 1930 . . .” [46 Stat. 752, c. 497; 19 U.S.C.A. Supp. 1595. This is identical with § 595, Tariff Act of 1922, 42 Stat. 983, c. 356, copied in the margin*.] And it held [p. 939]—“ In the instant case the seizure was under the tariff laws. The Government had a pecu *Act 1922 and Act of 1930. Sec. 595. Searches and seizures, (a) Warrant. If any collector of customs or other officer or person authorized to make searches and seizures shall have cause to suspect the presence in any dwelling house, store, or other building or place of any merchandise upon which the duties have not been paid, or which has been otherwise brought into the United States contrary to law, he may make application, under oath, to any justice of the peace, to any municipal, county, State, or Federal judge, or to any United States commissioner, and shall thereupon be entitled to a warrant to enter such dwelling house in the daytime only, or such store or other place at night or by day, and to search for and seize such merchandise, , ,, 46 OCTOBER TERM, 1933. Opinion of the Court. 290 U.S niary interest in the smuggled goods. Following the reasoning in the cases cited, we conclude that that interest was sufficient to justify the issuance of the search warrant and that the search and seizure, based on the sworn complaint (phrased almost in the very words of the Tariff Act) and the warrant thereon, did not violate the constitutional rights of the defendant. This court, in Bookbinder v. United States, 287 Fed. 790, certiorari denied, 262 U.S. 748, held that evidence obtained on a search warrant for violation of the customs laws is admissible in a prosecution for violation of the prohibition laws.” We think the court below acted upon an erroneous view. Its judgment must be reversed. This court has often spoken concerning searches and seizures and the limitations of the Fourth Amendment. Locke v. United States, 7 Cranch 339; Boyd v. United States, 116 U.S. 616; Adams n. New York, 192 U.S. 585; Weeks v. United States, 232 U.S. 383; Gouled v. United Stdtes, 255 U.S. 298; Byars v. United States, 273 U.S. 28; Maul v. United States, 274 U.S. 501; Go-Bart Importing Co. N. United States, 282 U.S. 344; United States v. Lefkowitz, 285 U.S. 452. See also Cooley, Constitutional Limitations, 7th ed., p. 427. Here, we are dealing with a warrant to search a private dwelling said to have been authorized by the Tariff Act. It went upon a mere affirmation of suspicion and belief without any statement of adequate supporting facts. All unreasonable searches and seizures are absolutely forbidden by the Fourth Amendment. In some circumstances a public officer may make a lawful seizure without a warrant; in others he may act only under permission of one. In the present case the place of search and seizure was a private dwelling. The challenged warrant is said to constitute adequate authority therefor. The legality of the seizure depends upon its sufficiency. Did it issue upon probable cause supported by oath or affirmation within the intendment of the Amendment? TRAINOR CO. v. AETNA CASUALTY CO. 47 41 Syllabus. The Amendment applies to warrants under any statute; revenue, tariff, and all others. No warrant inhibited by it can be-made effective by an act of Congress or otherwise. It is argued that searches for goods smuggled into the United States in fraud of the revenue, based upon affidavits of suspicion or belief, have been sustained from the earliest times; that this practice was authorized by the Revenue Act of July 31, 1789, 1 Stat. 43, also subsequent like enactments. But we think nothing in these statutes indicates that a warrant to search a private dwelling may rest upon mere affirmance of suspicion or belief without disclosure of supporting facts or circumstances. Although relied upon, we find nothing in Locke v. United States and Boyd n. United States which upholds the view of the Circuit Court of Appeals. The first of these causes was a proceeding to forfeit a cargo of imported goods seized for violation of the revenue laws. It presented no question concerning the validity of a warrant. The second denied the right to compel production of private papers in a suit by the United States to establish a forfeiture of goods fraudulently imported. Under the’ Fourth Amendment, an officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circum-stances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough. Reversed. TRAINOR CO. v. AETNA CASUALTY & SURETY CO. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 13. Argued October 12, 1933.—Decided November 6, 1933. 1. Upon default after partial performance of a building contract, the measure of damages recoverable by a mortgagee-obligee on a bond guaranteeing completion, is the difference between the value, at the 48 290 U.S. OCTOBER TERM, 1933. Argument for Petitioner. time of default, of the property with the buildings uncompleted and the value it would have had with the buildings completed; not exceeding, however, either the amount due on the mortgage or the amount of the bond. Pp. 53, 55. So held although the value of the property with the buildings uncompleted, at the time of the guarantor’s default, exceeded the sum of the mortgage and all prior liens; it appearing that the mortgagee-obligee, because its mortgage was not then due, was unable to protect itself by foreclosure; that thereafter the property steadily declined in value; and that its interest was subsequently wiped out by foreclosure of a prior lien. 2. This is the settled rule in Pennsylvania. P. 53. 3. Even though the federal courts, in determining questions of general law, may exercise an independent judgment, yet, for the sake of harmony and to avoid confusion, they will lean, where the question is balanced with doubt, towards an agreement of views with the state courts. A fortiori where the decisions of the state courts are plainly right. P. 54. 62 F. (2d) 487, reversed. Certiorari, 289 U.S. 718, to review a judgment affirming a judgment of the District Court, 49 F. (2d) 769, awarding nominal damages in a suit on a guaranty bond. Mr. David L. Ullman, with whom Mr. Joseph J. Brown was on the brief, for petitioner. There is a well-established distinction between an affirmative covenant for a specific thing and one of indemnity against damage by reason of the non-performance of the thing specified. Purdy n. Massey, 306 Pa. 288; Weightman v. Union Trust Co., 208 Pa. 449; 3 Sutherland, Damages, 4th ed., § 765. The basic question in this case is whether or not the bond in suit is one of guaranty or indemnity. To the same effect are Wheeler v. Equitable Trust Co., 206 Pa. 428; Equitable Trust Co. v. National Surety Co., 214 Pa. 159; Weightman v. Union Trust Co., 208 Pa. 449; Union Trust Co. v. Citizens Trust Co., 185 Pa. 217; Wicker v. Hoppock, 6 Wall, 94; Cudaback v. Hay, 134 TRAINOR CO. v. AETNA CASUALTY CO. 49 47 Argument for Respondent. Fed. 120, s.c. 139 Fed. 369; Belloni v. Freeborn, 63 N.Y. 383; Kidd v. McCormick, 83 N.Y. 391; United Real Estate Co. v. McDonald, 140 Mo. 605. Distinguishing: Schwartz & Co. v. Aimwell Co., 227 N.Y. 184. Whether the case be regarded as presenting a question of suretyship or of the measure of damages, the decisions of the state court of last resort should be followed by the federal courts. No federal question is involved. The law invoked is of local character. Community Bldg. v. Maryland Casualty Co., 8 F. (2d) 678; Sturtevant Co. v. Fidelity & Deposit Co., 285 Fed. 367; Mullins Lumber Co. v. Williamson & Brown Co., 255 Fed. 645; Hughes, Federal Practice, Jurisdiction & Procedure (1931), vol. 6, § 3735, p. 375; McLain v. Provident Saving Life Assur. Society, 110 Fed. 80, 91; Warren County v. Southern Surety Co., 34 F. (2d) 168, 170. This is not a case where a series of decisions have established a federal rule, opposed to a state rule, to which the federal courts feel bound by the principle of stare decisis. Mr. Joseph W. Henderson, with whom Mr. Thomas F. Mount was on the brief, for respondent. There is no substantial difference between the measure of damages recoverable by a mortgagee-obligee for the breach of a bond giving an absolute guarantee of completion and for the breach of a bond indemnifying against loss for failure to complete. Purdy v. Massey, 306 Pa. 288, 297. If the contractor defaults and the building is not fully erected, the legal interest of the mortgagee which is adversely affected and which the law will be compelled to protect, and as to which compensation may be claimed, is the loss to the mortgagee of his security by reason of the contractor’s default. Thus the mortgagee-obligee is entitled to recover as damages the amount by which the 15459°—34----4 50 OCTOBER TERM, 1933. Argument for Respondent. 290 U.S. security has been depleted by the failure of the contractor to perform, or so much of the difference between the value of the completed and uncompleted operation as would be necessary, together with the value of the property in the condition in which it is left by the contractor, to pay the mortgage debt and the interest thereon. Province Securities Corp. v. Maryland Casualty Co., 269 Mass. 75. Distinguishing: Purdy v. Massey, 306 Pa. 288; Weightman v. Union Trust Co., 208 Pa. 449; Wicker v. Hoppock, 6 Wall. 94; Hay v. Cudaback, 139 Fed. 369; Belloni v. Freeborn, 63 N.Y. 383; Kidd v. McCormick, 83 N.Y. 391. Cf. Schwartz & Co. v. Aimwell Co., 227 N.Y. 184. The measure of damages is limited to the difference between the value of the property in the condition in which it existed at default and the amount of principal and interest due on the mortgage and all prior liens. Province Securities Corp. n. Maryland Casualty Co., 269 Mass. 75; Norway Plains Savings Bank v. Moors, 134 Mass. 129; Longfellow v. McGregor, 61 Minn. 494; German American T. & T. Co. v. Citizens T. & S. Co., 190 Pa. 247; Purdy v. Massey, dissenting opinion, 306 Pa. 288, 297. Distinguishing: Wicker v. Hoppock, 6 Wall. 94. Federal courts exercise an independent judgment, irrespective of the decisions of the local state courts, in matters of general jurisprudence and commercial law. Swift v. Tyson, 16 Pet. 1; Butz v. Muscatine, 8 Wall. 575, 582; Baltimore & Ohio R. Co. v. Baugh, 149 U.S. 368, 371 ; Black & White Co. v. Brown & Yellow Co., 276 U.S. 518. Cf. the dissenting opinion in Kuhn n. Fairmont Coal Co., 215 U.S. 349. That the doctrine of Swift v. Tyson, supra, is recognized and applied by all of the Circuit Courts of Appeals is shown by the following decisions: Sears v. Greater N. Y. Development Co., 51 F. (2d) 46; Cole v. Pennsylvania R. Co., 43 F. (2d) 953; Trainor Co. v. Aetna Cas- TRAINOR CO. v. AETNA CASUALTY CO. 51, 47 Opinion of the Court. ualty & Surety Co., 62 F. (2d) 487; Long v. Monarch Accident Ins. Co., 30 F. (2d) 929; Home Insurance Co, v. Currie, 54 F. (2d) 203; Farmers’ Bank v. Hayes, 58 F. (2d) 34; Aetna Life Ins. Co. v. Roewe, 38 F. (2d) 393; Odegard v. General Casualty & Surety Co., 44 F. (2d) 31; Community Bldg. Co. v. Maryland Casualty Co., 8 F. (2d) 678; Bu-Vi-Bar Petroleum Corp. v. Krow, 40 F. (2d) 488. Questions of suretyship are matters of general jurisprudence, and those relating to the measure of damages are also. The use of completion bonds throughout the Nation requires a national uniform law and, therefore, questions pertaining thereto are matters of general jurisprudence. Irrespective of whether the question of measure of damages in this case be considered a matter of general jurisprudence, the federal courts below were entitled to exercise an independent judgment concerning it. Burgess v. Seligman, 107 U.S. 20; Kuhn v. Fairmont Coal Co., 215 U.S. 349; Concordia Insurance Co. v. School District, 282 U.S. 545; Putnam Memorial Hospital v. Allen, 34 F. (2d) 927; Hart v. Adair, 244 Fed. 897; Dernberger v. Baltimore & Ohio R. Co., 243 Fed. 21. Mr. Justice Sutherland delivered the opinion of the Court. On October 13, 1927, petitioner conveyed to a building company a tract of real estate consisting of fifty-two lots, with the result that the building company became indebted to petitioner in the sum of $28,000, being part of the purchase price. The building company, in order to finance its operations, borrowed sums of money from two different corporations, to one of which it gave a first mortgage upon the real estate, and to the other a second mortgage. The building company then gave to petitioner its note for $28,000, and assigned as collateral security there- 52 290U.S. OCTOBER TERM, 1933. Opinion of the Court. for its equity in the second mortgage. Petitioner accepted this security—in effect a third mortgage—upon the representation and warranty of the building company that a building and certain improvements would be erected, in accordance with plans and specifications, upon each of the fifty-two lots. The performance of this obligation was guaranteed by a bond in the sum of $220,000, executed by respondent, conditioned, among other things, to become void if within ten months from the date thereof, October 13, 1927, each of the fifty-two lots should be fully improved witli a building, together with certain other improvements, in keeping with, and as shown by, the plans, specifications, etc.; otherwise to remain in full force and effect. The property is located in Pennsylvania, and the contract and the obligations of the bond were to be performed within that state. Suit was brought in a federal district court for the eastern district of Pennsylvania to recover damages for a breach of the bond. A jury was waived; and after a hearing, the trial judge found that on August 13,1928, the date fixed for the completion of the buildings and improvements, twenty-four of the houses had been completed and twenty-eight had not been fully completed. The value of the lots with the twenty-eight uncompleted houses, as of the date last mentioned, was $6,700 each, an amount slightly in excess of the sum of petitioner’s mortgage on each and of all prior liens. Completed, they would, on that date, have been worth $7,950 each. It is not disputed that at the time of the breach of the bond petitioner, under the terms of the mortgages, was powerless to protect itself by foreclosure; and the court found that thereafter the value of real estate, generally and in the locality, had steadily declined. On January 25, 1930, the first mortgage was foreclosed and the property bought in for the sum of $50, thus wiping out the second mortgage and the equity of petitioner therein. Petitioner has TRAINOR CO. v. AETNA CASUALTY CO. 53 47 Opinion of the Court. received on account of the indebtedness of $28,000 the sum of $13,026.02 only, leaving $14,973.98 still owing on the principal. Upon these facts the trial court held that while the owner of property, in case of a default after partial performance of a building contract, would be entitled to recover from the surety the difference between the value of the property with the uncompleted buildings and its value with the buildings completed, the rule is otherwise in the case of a mortgagee-obligee. Following this view, that court concluded that the measure of damages in the instant case “ is so much of the difference between the value of the property as of August 13, 1928, with the houses uncompleted, and the value it would have had on that date had the houses been completed as would have been necessary to pay the plaintiff’s mortgage debt as well as all prior liens. Since the value of the property as of August 13, 1928, was more than the sum of the plaintiff’s mortgage and prior liens, the plaintiff is not entitled to any substantial damages.” The court, therefore, awarded nominal damages only. 49 F. (2d) 769. This judgment the circuit court of appeals affirmed. 62 F. (2d) 487. With that conclusion we are unable to agree. It is very clear that the settled rule in Pennsylvania is to the contrary. In Purdy v. Massey, 306 Pa. 288; 159 Atl. 545, where prior cases are reviewed, the court held that where there is an absolute undertaking to erect and complete a building, the surety in case of default is bound to take the place of the principal and erect the building, and the cost of doing that which should have been done is the measure of damages for which the surety is liable, not exceeding the amount of the bond. There the owner of a first purchase-money mortgage had subordinated her security to another mortgage in consideration of the giving of a bond in all substantial respects like the one here under consideration. The building provided for was not 54 290U.S. OCTOBER TERM, 1933. Opinion of the Court. erected, and the mortgagee brought suit against the surety on the bond. The court held that the bond was one of guaranty and awarded as damages the full cost of completion, such cost not exceeding the amount due on the mortgage. The applicable rule is “thus stated (p. 295): “ In fixing compensation for damage resulting from breach of a contract the general rule is that the injured party should be placed in the same position as if there had been no breach. The object of the law is to place such party in as good position as if the contract had been kept. In the instant case the bond guaranteed the completion of the building; if there had not been a breach of the obligation of the bond, the building would have been erected. Since this was not done, the plaintiff can only be put in as good position as if the contract had been carried out by giving her the cost of construction, not exceeding, of course, the amount of the bond. The measure of damage on a bond guaranteeing completion is the cost of completion: . . . And in a case such as this, where the work was never begun, this cost will be the whole cost of construction.” See also Mechanics Trust Co. n. Fid. & Cas. Co., 304 Pa. 526, 533, et seq.; 156 Atl. 146. A like rule obtains in other states. United Real Estate Co. n. McDonald, 140 Mo. 605, 612; 41 S.W. 913; Kidd n. McCormick, 83 N.Y. 391. Compare Wicker v. Hoppock, 6 Wall. 94, 99. The circuit court of appeals held that the Pennsylvania decisions merely declared the common law of that state with regard to suretyship, and, since that law is derived from the principles of general jurisprudence common to all the states, a federal court in determining what it is might exercise an independent judgment. We do not deem it necessary to discuss the principle enunciated or to decide whether the Pennsylvania decisions come within it. It is enough to say that even where the principle applies, “ for the sake of harmony and to avoid confusion, the Federal TRAINOR CO. v. AETNA CASUALTY CO. 55 47 Opinion of the Court. courts will lean towards an agreement of views with the State courts if the question seems to them balanced with doubt.” Burgess v. Seligman, 107 U.S. 20, 33-34. And see Sim v. Edenborn, 242 U.S. 131, 135, where the authorities are collected; Community Bldg. Co. n. Maryland Casualty Co., 8 F. (2d) 678, 680. In the present case it would not be going far enough to say merely that the question is “ balanced with doubt,” for it seems to us that the Pennsylvania decisions, and those of the other states cited above, are plainly right. Compare Messenger v. Anderson, 225 U.S. 436, 444. The petitioner here, not being willing to accept a third mortgage on the unimproved land to secure its debt, required the added security which would be afforded by completed improvements. These improvements the building company agreed to make within a definitely fixed time, and for the performance of that undertaking respondent, for a valuable consideration, stood sponsor. Plainly the obligation of the bond was one of guaranty and not indemnity, and could be fulfilled only by the erection of the buildings or payment of the penalty in case of default. It is no answer to say that the value of the property immediately after the default exceeded the sum of the mortgage together with all prior liens. Petitioner was then without remedy against the property because its mortgage was not in default. It was, therefore, obliged to sit by and await the action of others over which it had no control. In the meantime, the uncompleted buildings necessarily lay unrented, subject io expense in the way of taxes, insurance, accumulating interest, etc., deteriorating in quality and steadily declining in value. Petitioner is entitled to be put in as good position in respect of its debt as it would have occupied if the buildings had been completed in accordance with the terms of the undertaking; and this can be done here only by giving it the amount of the difference between the 56 OCTOBER TERM, 1933. Syllabus. 290 U.S, value of the unfinished buildings and their value as it would have been if completed in accordance with the agreement—see Kidd n. McCormick, supra, p. 398—but exceeding neither the amount due on. its debt nor the amount of the bond. It appears from the findings that this difference would be about $26,000, while the amount now due petitioner is $14,973.98, together with interest thereon from August 13, 1928. It follows that the judgments of the courts below must be reversed and the cause remanded to the district court with directions to enter judgment for the last named sum. Reversed. GRISWOLD et al., EXECUTORS, v. HELVERING, COMMISSIONER OF INTERNAL REVENUE. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No. 38. Argued October 19, 20, 1933.—Decided November 6, 1933. 1. Section 402 of the Revenue Act of 1921 provides that, in determining the value of the gross estate of a decedent for the purpose of the federal estate tax, there shall be included the value at the time of his death of all property “ to the extent of the interest therein held jointly or as tenants by the entirety by the decedent and any other person.” Held, the inclusion, in the gross estate of a decedent who died while the provision of this section was in effect, of one-half the value of property held by him and his wife as joint tenants, though the tenancy was created prior to the effective date of the statute, was not a retroactive application of the statute. P. 58. 2. The cessation at death of decedent’s interest in, and control over, half of property held with another as joint tenants presented a proper occasion for the imposition of a tax. Gwinn N. Commissioner, 287 U.S. 224. P. 58. 62 F, (2d) 591, affirmed. GRISWOLD v. HELVERING. .57 56 Opinion of the Court. Certiorari, 289 U.S. 722, to review a judgment affirming a decision of the Board of Tax Appeals, 23 B.T.A. 635, redetermining a deficiency in estate tax. Mr. Wm. N. Haddad argued the cause, and Mr. Walter T. Fisher filed a brief, for petitioners. Mr. Erwin N. Griswold, with whom Solicitor General Biggs and Messrs. Sewall Key and Wm. Cutler Thompson were on the brief, for respondent. Mr. Justice Sutherland delivered the opinion of the Court. Section 402 of the Revenue Act of 1921, c. 136, 42 Stat. 227, 277, 278, imposing an inheritance tax, provides, “ Sec. 402. That the value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, . . . “(d) To the extent of the interest therein held jointly or as tenants in the entirety by the decedent and any other person, . . The decedent died in 1923, while the foregoing provision was in effect. At the time of his death he and his wife held as joint tenants certain real estate in Illinois, title to which vested in them by conveyance on October 5, 1909. The commissioner valued this real estate at $90,000, and included the whole of it in the value of decedent’s gross estate as being within the reach of § 402 (d). Upon appeal to the Board of Tax Appeals, that tribunal, disapproving in part the commissioner’s determination, held that the value of only decedent’s one-half of the property could be included for the purposes of the tax. 23 B.T.A. 635. The circuit court of appeals affirmed. 62 F. (2d) 591. 58 290 U.S. OCTOBER TERM, 1933. Opinion of the Court. Whether this application of the statute gives it a retroactive effect is the sole question here involved; and with that we find no difficulty. Under the statute the death of decedent is the event in respect of which the tax is laid. It is the existence of the joint tenancy at that time, and not its creation at the earlier date, which furnishes the basis for the tax. By the judgment under review, only half of the value, that is to say, the value of decedent’s interest, has been included, leaving the survivor’s interest unaffected. After the creation of the joint tenancy, and until his death, decedent retained his interest in, and control over, half of the property. Cessation of that interest and control at death presented the proper occasion for the imposition of a tax. See Gwinn X. Commissioner, 287 U.S. 224, and cases cited. And since that is all that is sought to be reached by the tax here in question, the complaint that the statute has been given a retroactive application obviously is without substance. The statute as applied does not lay a tax in respect of an event already past, but in respect of one yet to happen. Petitioners insist that Knox v- McEUigott, 258 U.S. 546, is to the contrary, but, clearly, it is not. There the tax return included the value of decedent’s one-half of the jointly owned property, but did not include the value of the half which had been owned and enjoyed by the surviving joint tenant. Nevertheless, the commissioner undertook to impose a tax in respect of the value of this latter half as well. This court held that to do so was to apply the statute retroactively, and that this, under the circumstances of that case, could not be done. It did not hold, or intend to hold, that the statute was retroactive in so far as the value of the decedent’s half of the joint estate was concerned. That question was not there involved. It is the only question here. Judgment affirmed. 59 OAKES v. LAKE. Opinion of the Court. OAKES v. LAKE. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 5. Argued October 11, 1933.—Decided November 6, 1933. 1. A state court receiver who, as such, had taken possession of personal property (cattle) afterwards found in another State in possession of another, is entitled to sue for repossession in that State, without an ancillary appointment. P. 61. 2. The principle upon which the receiver may do this is one of law and not of comity. P. 63. 3. Assuming, but not deciding, that in a suit in a federal court in Idaho, under the so-called claim and delivery statute of that State, property held by a sheriff under process issued by a state court can not be repossessed, nevertheless the value of the property and damages may be recovered. P. 64. 62 F. (2d) 728, reversed. Certiorari, 289 U.S. 717, to review a judgment affirming a judgment of non-suit in an action brought in the District Court by a foreign receiver under the Idaho claim and delivery statute. Mr. George B. Guthrie, with whom Messrs. James G. Wilson and John F. Reilly were on the brief, for petitioner. Mr. William Healy submitted for respondent. Mr. Justice Sutherland delivered the opinion of the Court. This is an action under the Idaho “ claim and delivery ” statute brought by petitioner in the federal district court for the district of Idaho. The complaint alleges that petitioner is a resident and inhabitant of the State of Oregon, and is the duly qualified receiver of the property which is the subject matter of the action, having been so appointed by an Oregon state circuit court; that follow- 60 290U.S. OCTOBER TERM, 1933. Opinion of the Court. ing his appointment and qualification, and prior to March, 1931, as such receiver he took into his possession certain designated cattle, and has ever since been entitled to the immediate and exclusive possession thereof; that about the first day of July, 1931, the respondent took possession of the cattle in the State of Idaho by virtue of a writ of attachment; that respondent has refused to return said cattle to petitioner, although demand therefor was made prior to the commencement of the action. Judgment was prayed to the effect that petitioner is the owner and entitled to the immediate possession of the cattle, and in lieu thereof that he recover from respondent the sum of $5,000. The answer, among other things, denies that petitioner took possession of the cattle as alleged, or any of them, and avers affirmatively that respondent in his official capacity seized the cattle upon a writ of execution duly issued by an Idaho state district court. The case was tried before the federal district court and a jury. Petitioner offered evidence tending to show that he had taken actual possession of the cattle in the State of Oregon, and that the cattle thereafter were found in Idaho and there seized by respondent. At the conclusion of petitioner’s case respondent moved for non-suit and dismissal, upon the grounds, (1) that the proof shows that plaintiff had no capacity to sue in the courts of Idaho, since he had neither title to the property under the Oregon law or the order of the court appointing him, nor actual possession thereof, either in the State of Oregon or in the State of Idaho; (2) that an action of replevin will not lie in a United States court against a sheriff to take property from the possession of a state court. A third ground was urged, which we do not consider. It is without merit and is not pressed here. The court granted the motion, saying “ that the proof is insufficient to initiate the liability on this hearing.” OAKES v. LAKE. 61 59 Opinion of the Court. 1. Upon appeal to the circuit court of appeals, that court, without considering other assignments of error, affirmed the judgment upon the ground that a receiver appointed in a state court is not entitled to sue in a foreign jurisdiction to repossess cattle, which, after being put in charge of his agent, cross over the boundary line into a foreign jurisdiction. Although respondent contends otherwise, the court below reached that conclusion in the face of an assumption that actual possession of the cattle had been taken by petitioner in Oregon. The language of the court follows: “ Granting the soundness of the contention that the receiver was entitled to the undisturbed possession of the property and assuming that he actually had such possession [italics supplied], and granting or assuming that he had the power to sue locally in replevin for an unlawful interference with his right of possession, nevertheless such right of possession did not vest him with the title necessary to sue in the court below without an ancillary appointment therein; and he was not entitled to bring the suit as a matter’of comity.” 62 F. (2d) 728, 730. Upon the same assumption, namely, that the receiver had reduced the property to his actual possession in the State of Oregon, we reach a different conclusion. The general rule undoubtedly is that an ordinary chancery receiver, having no other authority than that arising from his appointment as such, cannot as of right maintain an action in a state other than that in which he was appointed. The decision in Booth v. Clark, 17 How. 322, to that effect has been uniformly followed by this court. See, for example, Great Western Mining Co. v. Harris, 198 U.S. 561; Sterrett v. Second National Bank, 248 U.S. 73. The very terms in which the rule is expressed, however, clearly recognize that where the receiver has “ other authority than that arising from his 62 290 U.S. OCTOBER TERM, 1933. Opinion of the Court. appointment as such,” he may under some circumstances maintain an action outside the state of his appointment. And so it definitely has been held. The foreign receiver may maintain such a suit, so far at least as the federal courts are concerned, where title to the property in question has been vested in him by conveyance or statute. In Bernheimer v. Converse, 206 U.S. 516, it was held that a receiver might sue in a foreign jurisdiction to collect upon the statutory liability of stockholders of a corporation, where the statute of the state conferred the right upon the receiver as gms^-assignee. Following that decision, this court, in Converse v. Hamilton, 224 U.S. 243, 256 et seq., while reiterating the rule laid down in Booth v. Clark, supra, pointed out that the receiver suing in the Hamilton case was not merely an ordinary chancery receiver, but much more; that under the laws of the state of his appointment he became a Q2z candid consideration of the history and circumstances which led up to and accompanied the framing and adoption of this clause will demonstrate conclusively that it was framed and adopted with the specific and studied purpose of preventing legislation designed to relieve debtors especially in time of financial distress. In- 454 OCTOBER TERM, 1933. 290 U.S. Sutherland, J., dissenting. deed, it is not probable that any other purpose was definitely in the minds of those who composed the framers’ convention or the ratifying state conventions which followed, although the restriction has been given a wider application upon principles clearly stated by Chief Justice Marshall in the Dartmouth College Case, 4 Wheat. 518, 644-645. Following the Revolution, and prior to the adoption of the Constitution, the American people found themselves in a greatly impoverished condition. Their commerce had been well-nigh annihilated. They were not only without luxuries, but in great degree were destitute of the ordinary comforts and necessities of life. In these circumstances they incurred indebtedness in the purchase of imported goods and otherwise, far beyond their capacity to pay. From this situation there arose a divided sentiment. On the one hand, an exact observance of public and private engagements was insistently urged. A violation of the faith of the nation or the pledges of the private individual, it was insisted, was equally forbidden by the principles of moral justice and of sound policy. Individual distress, it was urged, should be alleviated only by industry and frugality, not by relaxation of law or by a sacrifice of the rights of others. Indiscretion or imprudence was not to be relieved by legislation, but restrained by the conviction that a full compliance with contracts would be exacted. On the other hand, it was insisted that the case of the debtor should be viewed with tenderness; and efforts were constantly directed toward relieving him from an exact compliance with his contract. As a result of the latter view, state laws were passed suspending the collection of debts, remitting or suspending the collection of taxes, providing for the emission of paper money, delaying legal proceedings, etc. There followed, as there must always follow from such a course, a long trail of ills, one of the direct HOME BLDG. & L. ASSN. v. BLAISDELL. 455 398 Sutherland, J., dissenting. consequences being a loss of confidence in the government and in the good faith of the people. Bonds of men whose ability to pay their debts was unquestionable could not be negotiated except at a discount of thirty, forty, or fifty per cent. Real property could be sold only at a ruinous loss. Debtors, instead of seeking to meet their obligations by painful effort, by industry and economy, began to rest their hopes entirely upon legislative interference. The impossibility of payment of public or private debts was widely asserted, and in some instances threats were made of suspending the administration of justice by violence. The circulation of depreciated currency became common. Resentment against lawyers and courts was freely manifested, and in many instances the course of the law was arrested and judges restrained from proceeding in the execution of their duty by popular and tumultous assemblages. This state of things alarmed all thoughtful men, and led them to seek some effective remedy. Marshall, Life of Washington (1807), Vol. 5, pp. 88-131. That this brief outline of the situation is entirely accurate is borne out by all contemporaneous history, as well as by writers of distinction of a later period.2 Compare * Thus McMaster (History of the People of the United States, Vol. 1, p. 425)—after referring to the conditions in Rhode Island, where “ the bonds of society were dissolved by paper money and tender laws in New Jersey, where the people nailed up the doors of their court houses; in Virginia, where the debtors “ set fire to theirs in order to stop the course of justice ”—says: " The newspapers were full of bankrupt notices. The farmers’ taxes amounted to near the rent of their farms. Mechanics wandered up and down the streets of every city destitute of work. Ships, shut out from every port of Europe, lay rotting in the harbors.” Channing (History of the United ■ States, Vol. Ill, pp. 410-411, 482-483) paints this graphic picture of the situation: “ Nowhere was the immediate prospect more gloomy than in South Carolina. ... In Massachusetts, at the other end of the line, the 456 OCTOBER TERM, 1933. Sutherland, J., dissenting. 290 U.S. Edwards n. Kearzey, 96 U.S. 595, 604-607. The appended note might be extended for many pages by the addition of similar quotations from the same and other writers, but enough appears to establish beyond all ques- case was as bad, if not worse . . . the resources of New England were insufficient to pay even what was then owing. The case of New York was even more desperate, and for the moment Philadelphia alone seemed prosperous, for the wastage of the later years of the war had been severely felt in Virginia. . . . “ . . . Virginia was honeycombed with debt. . . . “ In South Carolina, the planters were even more heavily in debt. . . . The case of Thomas Bee is to the point. His creditors had secured executions against him; the sheriff had seized his property and had sold it at one-thirteenth of what it would have brought at private sale in ordinary times.” Nevins (The American States During and After the Revolution, p. 536) says: “ The town of Greenwich computed that during each of the five years preceding 1786 the farmers had paid in taxes the entire rental value of their land.” John Fiske (The Critical Period of American History, 8th ed., pp. 175, 180) thus describes conditions: . about the market-places men spent their time angrily discussing politics, and scarcely a day passed without street-fights, which at times grew into riots. In the country, too, no less than in the cities, the goddess of discord reigned. The farmers determined to starve the city people into submission, and they entered into an agreement not to send any produce into the cities until the merchants should open their shops and begin selling their goods for paper [money] at its face value. . . . the farmers threw away their milk, used their com for fuel, and let their apples rot on the ground. . . . . . the courts were broken up by armed mobs. At Concord one Job Shattuck brought several hundred armed men into the town and surrounded the court-house, while in a fierce harangue he declared that the time had come for wiping out all debts.” Dr. David Ramsay (History of the United States, 2d ed., 1818, Vol. III, pp. 46-47), a member of the old Congress under the Confederation, and who lived in the midst of the events of which he speaks, says: HOME BLDG. & L. ASSN. v. BLAISDELL. 457 398 Sutherland, J., dissenting. tion the extreme gravity of the emergency, the great difficulty and frequent impossibility which confronted debtors generally in any effort to discharge their obligations. “ The non-payment of public debts sometimes inferred a necessity, and always furnished an apology, for not discharging private contracts. Confidence between man and man received a deadly wound. Public faith being first violated, private engagements lost much of their obligatory force. . . . “ From the combined operation of these causes trade languished; credit expired; gold and silver vanished; and real property was depreciated to an extent equal to that of the depreciation of continental money, . . .” And, finally, George Ticknor Curtis, in his History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 1, pp. 332-333: “All contemporary evidence assures us that this [1783 to 1787] was a period of great pecuniary distress, arising from the depreciation of the vast quantities of paper money issued by the Federal and State governments; from rash speculations; from the uncertain and fluctuating condition of trade; and from the great amount of foreign goods forced into the country as soon as its ports were opened. Naturally, in such a state of things, the debtors were disposed to lean in favor of those systems of government and legislation which would tend to relieve or postpone the payment of their debts; and as such relief could come only from their State governments, they were naturally the friends of State rights and State authority, and were consequently not friendly to any enlargement of the powers of the Federal Constitution. The same causes which led individuals to look to legislation for irregular relief from the burden of their private contracts, led them also to regard public obligations with similar impatience. Opposed to this numerous class of persons were all those who felt the high necessity of preserving inviolate every public and private obligation; who saw that the separate power of the States could not accomplish what was absolutely necessary to sustain both public and private credit; and they were as naturally disposed to look to the resources of the Union for these benefits, as the other class were to look in an opposite direction. These tendencies produced, in nearly every State, a struggle, not as between two organized parties, but one that was all along a contest for supremacy between opposite opinions, in which it was at one time doubtful to which side the scale would turn,” 458 OCTOBER TERM, 1933. Sutherland, J., dissenting. 290U.S. In an attempt to meet the situation recourse was had to the legislatures of the several states under the Confederation; and these bodies passed, among other acts, the following: laws providing for the emission of bills of credit and making them legal tender for the payment of debts, and providing also for such payment by the delivery of specific property at a fixed valuation; instalment laws, authorizing payment of overdue obligations at future intervals of time; stay laws and laws temporarily closing access to the courts; and laws discriminating against British creditors. I have selected, out of a vast number, a few historical comments upon the character and effect of these legislative devices.3 ’Charles Warren, The Making of the Constitution, pp. 5-6: “ The actual evils which led to the Federal Convention of 1787 are familiar to every reader of history and need no detailed description here. As is well known, they arose, in general, . . . ; second, from State legislation unjust to citizens and productive of dissensions with neighboring States—the State laws particularly complained of being those staying process of the Courts, making property a tender in payment of debts, issuing paper money, interfering with foreclosure of mortgages, . . .” Fiske, supra, note 2, p. 168: “ By 1786, under the universal depression and want of confidence, all trade had well-nigh stopped, and political quackery, with its cheap and dirty remedies, had full control of the field. ... a craze for fictitious wealth in the shape of paper money ran like an epidemic through the country. There was a Barmecide feast of economic vagaries; . . . And when we have threaded the maze of this rash legislation, we shall the better understand that clause in our federal constitution which forbids the making of laws impairing the obligation of contracts.” Beard, An Economic Interpretation of the Constitution of the United States, pp. 31-32: “ Money capital was . . . being positively attacked by the makers of paper money, stay laws, pine barren acts, and other devices for depreciating the currency or delaying the collection of debts. In addition there was a widespread derangement of the monetary system . . . HOME BLDG. & L. ASSN. v. BLAISDELL. 459 398 Sutherland, J., dissenting. In the midst of this confused, gloomy, and seriously exigent condition of affairs, the Constitutional Convention of 1787 met at Philadelphia. The defects of the Articles of Confederation were so great as to be beyond all hope of amendment, and the Convention, acting in technical excess of its authority, proceeded to frame for submission to the people of the several states an entirely new Constitution. Shortly prior to the meeting of the Convention, Madison had assailed a bill pending in the Virginia Assembly, proposing the payment of private debts in three annual instalments, on the ground that “ no legislative principle could vindicate such an interposition “ Creditors, naturally enough, resisted all of these schemes in the state legislatures, and . . . turned to the idea of a national government so constructed as to prevent laws impairing the obligation of contract, emitting paper money, and otherwise benefiting debtors. It is idle to inquire whether the rapacity of the creditors or the total depravity of the debtors . . . was responsible for this deep and bitter antagonism. It is sufficient for our purposes to discover its existence and to find its institutional reflex in the Constitution.” Fisher Ames, " Eulogy on Washington,” The Life and Works of Fisher Ames, Vol. II, p. 76: “ Accordingly, in some of the States, creditors were treated as outlaws; bankrupts were armed with legal authority to be persecutors; and by the shock of all confidence and faith, society was shaken to its foundations.” Illuminating comment upon some of this "state legislation is to be found in Chapter VI (Vol. I) of Bancroft’s “ History of the Formation of the Constitution of the United States,” under the heading, “ State Laws Impairing the Obligation of Contracts Prove the Need of an Overruling Union,” pp. 230-236: “ [In Massachusetts] Repeated temporary stay-laws gave no real relief; they flattered and deceived the hope of the debtor, exasperating alike him and his creditor. . . . . . [In Pennsylvania] in December, 1784, debts contracted before 1777 were made payable in three annual instalments. . . . “ Maryland, ... In 1782 . . . enacted a stay-law extending to January, 1784, . . . 460 290 U.S. OCTOBER TERM, 1933. Sutherland, J., dissenting. of the law in private contracts.” The bill was lost by a single vote.4 Pelatiah Webster had likewise assailed similar laws as altering the value of contracts; and William Paterson, of New Jersey, had insisted that “ the legislature should leave the parties to the law under which they contracted.” 6 In the plan of government especially urged by Sherman and Ellsworth there was an article proposing that the legislatures of the individual states ought not to possess a right to emit bills of credit, etc., “ or in any manner to obstruct or impede the recovery of debts, whereby the “ Georgia, in August, 1782, stayed execution for two years from and after the passing of the act. . . . . . [In South Carolina in 1782] the commencement of suits was suspended till ten days after the sitting of the next general assembly. . . . On the twenty-sixth day of March, 1784, came the great ordinance for the payment of debts in four annual instalments, . . .” Ramsay, supra, note 2, Vol. 3, 65-66, 106: “ The distrust which prevailed among the people, respecting the punctual fulfilment of contracts, arose from the powers claimed, and, in too many instances, exercised by the state legislatures, for impairing the obligation of contracts; . . . These prolific sources of evil were completely done away by the new constitution. . . . . . State legislatures, in too many instances, yielded to the necessities of their constituents, and passed laws, by which creditors were compelled, either to wait for payment of their just demands, on the tender of security, or to take property, at a valuation, or paper money falsely purporting to be the representative of specie. These laws were considered, by the British, as inconsistent with . . . the treaty, . . . The Americans palliated these measures, by the plea of necessity; . . .” Ramsay, The History of South-Carolina (1809), Vol. II, pp. 429-430: “ The effects of these laws, interfering between debtors and creditors, were extensive. They destroyed public credit and confidence between man and man; injured the morals of the people, and in many instances ensured and aggravated the final ruin of the unfortunate debtors for whose temporary relief they were brought forward.” 4 Bancroft, supra, note 3, Vol. I, p. 239. 6 Id., Vol. I, p. 241. HOME BLDG. & L. ASSN. v. BLAISDELL. 461 398 Sutherland, J., dissenting. interests of foreigners or the citizens of any other state may be affected.” 6 And on July 13, 1787, Congress in New York, acutely conscious of the evils engendered by state laws interfering with existing contracts,7 passed the Northwest Territory Ordinance, which contained the clause: “And, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts, or engagements, bona fide, and without fraud previously formed.”8 It is not surprising, therefore, that, after the Convention had adopted the clauses, no state shall “ emit bills of credit,” or “ make any thing but gold and silver coin a tender in payment of debts,” Mr. King moved to add a “ prohibition on the states to interfere in private contracts.” This was opposed by Gouverneur Morris and Colonel Mason. Colonel Mason thought that this would be carrying the restraint too far; that cases would happen that could not be foreseen where some kind of interference would be essential. This was on August 28. But Mason’s view did not prevail, for, on September 14 following, the first clause of Art. I, § 10, was altered so as to include the provision, “ No state shall . . . pass any . . . law impairing the obligation of contracts,” and in that form it was adopted.9 Luther Martin, in an address to the Maryland House of Delegates, declared his reasons for voting against the provision. He said that he considered there might be times bf such great public calamity and distress as should ren- 8 Id., Vol. II, p. 136. 7 See Curtis, supra, note 2, Vol. 2, pp. 366-367. 8 Ordinance for the Government of the Territory of the United States Northwest of the River Ohio, Art. II; Thorpe, American Charters, Constitutions and Organic Laws, Vol. 2, pp. 957, 961. 8 Elliott’s Debates, Vol. V, pp. 485, 488, 545, 546; id., Vol. I, pp. 271, 311; Farrand, The Records of the Federal Convention, Vol. II, pp. 439-440, 596-597, 610. 462 290 U.S. OCTOBER TERM, 1933. Sutherland, J., dissenting. der it the duty of a government in some measure to interfere by passing laws totally or partially stopping courts of justice, or authorizing the debtor to pay by instalments; that such regulations had been found necessary in most or all of the states “ to prevent the wealthy creditor and the moneyed man from totally destroying the poor, though industrious debtor. Such times may again arrive.” And he was apprehensive of any proposal which took from the respective states the power to give their debtor citizens “ a moment’s indulgence, however necessary it might be, and however desirous to grant them aid.” 10 On the other hand, Sherman and Ellsworth defended the provision in a letter to the Governor of Connecticut.11 In the course of the Virginia debates, Randolph declared that the prohibition would be promotive of virtue and justice, and preventive of injustice and fraud; and he pointed out that the reputation of the people had suffered because of frequent interferences by the state legislatures with private contracts.12 In the North Carolina debates, Mr. Davie declared that the prohibition against impairing the obligation of contracts and other restrictions ought to supersede the laws of particular states. He thought the constitutional provisions were founded on the strongest principles of justice.13 Pinckney, in the South Carolina debates, said that he considered the section including the clause in question as 11 the soul of the Constitution,” teaching the states “ to cultivate those principles of public honor and private honesty which are the sure road to national character and happiness.” 14 “Elliot’s Debates, Vol. I, pp. 344, 376-377. u Id., Vol. I, pp. 491^92. 13 Id., Vol. Ill, p. 478. 13 Id., Vol. IV, pp. 156, 191. u Id., Vol. IV, p. 333. Mr. Warren, in his book, “ The Making of the Constitution,” pp. 552-555, has an interesting resume of the proceedings in the Conven- HOME BLDG. & L. ASSN. v. BLAISDELL. 463 398 Sutherland, J., dissenting. The provision was strongly defended in The Federalist, both by Hamilton in No. 7 and Madison in No. 44. Madison concluded his defense of the clause by saying: tion and of the conflicting views which were before the state conventions for consideration. He says in part: “The Convention then was asked to perfect their action in favor of honesty and morality, by adding a prohibition on the States which would put an end to statutes enacting laws for special individuals, setting aside Court judgments, repealing vested rights, altering corporate charters, staying the bringing or prosecution of suits, preventing foreclosure of mortgages, altering the terms of contracts, and allowing tender in payment of debts of something other than that contracted for. The State Legislatures had hitherto passed such laws in abundant measure, and the situation was graphically described later by Chief Justice Marshall in one of his most noted decisions [Ogden v. Saunders, 12 Wheat. 213, 354], as follows: “ ‘ The power of changing the relative situation of debtor and creditor, of interfering with contracts, a power which comes home to every man, touches the interest of all, and controls the conduct of every individual in those things which he supposes to be proper for his own exclusive management, had been used to such an excess by the State Legislatures as to break in upon the ordinary intercourse of society and destroy all confidence between man and man. The mischief had become so great, so alarming, as not only to impair commercial intercourse and threaten the existence of credit, but to sap the morals of the people and destroy the sanctity of private faith. To guard against the continuance of the evil was an object of deep interest with all the truly wise as well as virtuous of this great community, and was one of the important benefits expected from a reform of the government.’ “ To obviate the conditions thus described, King of Massachusetts proposed the insertion of a new restriction on the States. . . . Wilson and Madison supported his motion. Mason and G. Morris, however,, believed that it went too far in interfering with the powers of the States. . . . There was also a genuine belief by some delegates that, under some circumstances and in financial crises, such stay and tender laws might be necessary to avert calamitous loss to debtors. . . . The other delegates had been deeply impressed by the disastrous social and economic effects of the stay and tender laws which had been enacted by most of the States between 1780 and 1786,- and they decided to make similar legislation impossible in the future.” 464 290 U.S. OCTOBER TERM, 1933. Sutherland, J., dissenting. . one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society.” Contemporaneous history is replete with evidence of the sharp conflict of opinion with respect to the advisability of adopting the clause. Dr. Ramsay (The History of South-Carolina (1809), Vol. II, pp. 431-433), already referred to, writing of the action of South Carolina and especially referring to the contract impairment clause, says that this Constitution was accepted and ratified on behalf of the state, and speaks of it as an act of great selfdenial : “ The power thus given up by South-Carolina, was one she thought essential to her welfare, and had freely exercised for several preceding years. Such a relinquishment she would not have made at any period of the last five years; for in them she had passed no less than six acts interfering between debtor and creditor, with the view of obtaining a respite for the former under particular circumstances of public distress. To tie up the hands of future legislatures so as to deprive them of a power of repeating similar acts on any emergency, was a display both of wisdom and magnanimity. It would seem as if experience had convinced the state of its political errors, and induced a willingness to retrace its steps and relinquish a power which had been improperly used.” There is an old case, Glaze v. Drayton, 1 Desaus. Eq. (S.C.) 109, decided in 1784, where the South Carolina court of chancery entered a decree for the specific performance of a contract for the purchase of land, but providing for the payment of the balance due under the con- HOME BLDG. & L. ASSN. v. BLAISDELL. 465 398 Sutherland, J., dissenting. tract “ by instalments, at the times mentioned in the acts of assembly respecting the recovery of old debts.” In reporting that case soon after the adoption of the Constitution, Chancellor Desaussure added the following explanatory and illuminating note [p. 110]: “ The legislature, in consideration of the distressed state of the country, after the war, had passed an act, preventing the immediate recovery of debts, and fixing certain periods for the payment of debts, far beyond the periods fixed by the contract of the parties. These interferences with private contracts, became very common with most of the state legislatures, even after the distresses arising from the war had ceased in a great degree. They produced distrust and irritation throughout the community, to such an extent, that new troubles were apprehended; and nothing contributed more to prepare the public mind for giving up a portion of the state sovereignty, and adopting an efficient national government, than these abuses of power by the state legislatures.” If it be possible by resort to the testimony of history to put any question of constitutional intent beyond the domain of uncertainty, the foregoing leaves no reasonable ground upon which to base a denial that the clause of the Constitution now under consideration was meant to foreclose state action impairing the obligation of contracts primarily and especially in respect of such action aimed at giving relief to debtors in time of emergency. And if further proof be required to strengthen what already is inexpugnable, such proof will be found in the previous decisions of this court. There are many such decisions; but it is necessary to refer to a few only which bear directly upon the question, namely: Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 How. 608; Gantly’s Lessee v. Ewing, 3 How. 707; Howard v. Bugbee, 24 How. 461; Gunn n. Barry, 15 Wall. 610; Walker v. Whitehead, 15459°—34--------30 466 290 U.S. OCTOBER TERM, 1933. Sutherland, J., dissenting. 16 Wall. 314; Edwards v. Kearzey, 96 U.S. 595; Barnitz v. Beverly, 163 U.S. 118; and Bradley v. Lightcap, 195 U.S. 1. Bronson v. Kinzie was decided at the January Term, 1843. The case involved an Illinois statute, extending the period of redemption for a period of twelve months after a sale under a decree in chancery, and another statute preventing a sale unless two-thirds of the amount at which the property had been valued by appraisers should be bid therefor. This court held both statutes invalid, when applied to an existing mortgage, as infringing the contract impairment clause. No more need now be said as to the points decided. The opinion of the court says nothing about an emergency; but it is clear that the statute was passed for the purpose of meeting the panic and depression which began in 1837 and continued for some years thereafter.15 And in the light of what is now to be said, it is evident that the question of that emergency as a basis for the legislation was so definitely involved that it must have been considered by the court. The emergency was quite as serious as that which the country has faced during the past three years. Indeed, it was so great that in one instance, at least, a state repudiated a portion of its public debt, and others were strongly tempted to do so.16 Mr. Warren, in his book, “ The Supreme Court in United States History,” Vol. 2, pp. 376-379, gives a vivid picture of the situation. After referring to Bronson v. Kinzie and the statute extending the period of redemption therein dealt with, he points to the prevailing state of business and finance “See Dewey, Financial History of the United States, p. 229, et seq.; Schottler, History of the United States, Vol. IV, p. 276, et seq.; McMaster, supra, note 2, Vol. VI, pp. 389, et seq., 523, et seq., 623, et seq. “See Dewey, supra, note 15, p. 243, et seq.; McMaster, supra, note 2, Vol. VI, p. 627, et seq., Vol. VII, p. 19, et seq.; Centennial History of Illinois, Vol. II, p. 231, et seq. HOME BLDG. & L. ASSN. v. BLAISDELL. 467 398 Sutherland, J., dissenting. which had called the statute into existence; to the bank failures, state debt repudiations, scarcity of hard money, the inability to pay debts except by disposing of property at ruinous prices; to the enactment of statutes for the relief of debtors, stay laws postponing collection of debts, etc., which had been passed by state after state; and to the action of this court in striking down the state statute in the face of these conditions. “ Unquestionably,” he continues, “ the country owes much of its prosperity to the unflinching courage with which, in the face of attack, the Court has maintained its firm stand in behalf of high standards of business morale, requiring honest payment of debts and strict performance of contracts; and its rigid construction of the Constitution to this end has been one of the glories of the Judiciary. That its decisions should, at times, have met with disfavor among the debtor class was, however, entirely natural; and while, ultimately, these debtor-relief-laws have always proved to be injurious to the very class they were designed to relieve and to increase the financial distress, fraud and extortion, temporarily, debtors have always believed such laws to be their salvation and have resented judicial decisions holding them invalid. Consequently, this opinion of the Court in the Bronson Case aroused great antagonism in the Western States. In Illinois, a mass meeting was held which resolved that the decision ought not to be heeded, . . . Later, deference to the antagonism aroused against the Court by this decision was made when the Senator from Illinois, James Semple, introduced in the Senate in 1846, a joint resolution proposing a Constitutional Amendment to prohibit the Supreme Court from declaring void ‘ any Act of Congress or any State regulation on the ground that it is contrary to the Constitution of the United States . . McMaster (supra, note 2), Vol. VII, pp. 44-48, is to the same effect. 468 290 U.S. OCTOBER TERM, 1933. Sutherland, J., dissenting. McCracken v. Hayward, decided at the January Term, 1844, dealt with the same Illinois statute; but involved a sale on execution after judgment, whereas Bronson n. Kinzie involved a mortgage. The decision simply followed the Bronson case. What has been said in respect of the background and setting of that case is equally applicable and need not be repeated. Gantly’s Lessee v. Ewing was decided at the January Term, 1845. It held unconstitutional, as applied to a preexisting mortgage, an act of Indiana providing that no real property should be sold on execution for less than half its appraised value. The statute, like those of Illinois, was enacted for the benefit of hard-pressed debtors as a result of the same emergency. It is referred to by McMaster, supra, as one of the “ marks on the statute books ” which the “ evil times through which the people were passing ” had left. Howard n. Bugbee, decided at the December Term, 1860, dealt with an Alabama statute authorizing a redemption of mortgaged property in two years after the sale under a decree. The statute was declared unconstitutional principally upon the authority of Bronson n. Kinzie. The opinion is very short and does not refer to the question of emergency. The statute was passed, however, in 1842 (the mortgage having been executed prior thereto), and was, therefore, one of the emergency statutes of that period. The Alabama Supreme Court, whose decision was under review here, so treated it, and justified the statute upon that ground. 32 Ala. 713, 716-717. It is worthy of note that after the decision of this court in the Bugbee case, Judge Walker, who delivered the opinion therein for the Alabama court, filed a dissenting opinion in Ex parte Pollard, Ex parte Woods, 40 Ala. 77, 110, in the course of which he said that his former opinion had been overruled by this court and he could no longer perceive HOME BLDG. & L. ASSN. v. BLAISDELL. 469 398 Sutherland, J., dissenting. any ground upon which the convictions of a legislature as to the welfare of the people could enlarge the authority to interfere, through the manipulation of the remedy, with the obligation of contracts. The basis of the legislation was, and is shown by the decision of the Alabama Supreme Court sustaining it to be, the existence of the great emergency beginning in 1837; and that question, since the Alabama decision was reviewed, was quite plainly before this court for consideration. Walker v. Whitehead, decided at the December Term, 1872, held unconstitutional a Georgia statute requiring the plaintiff, suing on a debt or contract, to prove as a condition precedent to the entry of judgment in his favor that all legal taxes chargeable by law thereon had been duly paid for each year since the making of the debt or contract. The Georgia Supreme Court, 43 Ga. 538, 544-546, had sustained the act as a measure made necessary by the desperate financial and economic conditions in that state due to the Civil War. This court, making no response to the somewhat fervid presentation of this view of the matter by the state court, simply said that the degree of impairment was immaterial; that any impairment of the obligation of a contract is within the prohibition of the Constitution; that “A clearer case of a law impairing the obligation of a contract, within the meaning of the Constitution, can hardly occur.” Edwards v. Kearzey, decided at the October Term, 1877, held invalid, as applied to a preexisting debt, the provision of the North Carolina constitution of 1868 increasing the exemptions to which a debtor was entitled. The North Carolina Supreme Court, in a series of decisions, had sustained the state constitutional provision, principally upon the ground {Garrett v. Chesire, 69 N.C. 396, 404-405) that it was adopted at a time when “ probably one-half of the debtor class are owing more old debts than 470 290 U.S. OCTOBER TERM, 1933. Sutherland, J., dissenting. they can pay ”; and that “ If under our circumstances our people are to be left without any exemptions, the policy of Christian civilization is lost sight of, . . ” In the brief of defendant in error in this court (pp. 7-8) the view was strongly urged that the provision was not so much for the benefit of the debtor as for that of the state, to prevent the evils of almost universal pauperism. Attention was called to the desperate condition of the people of the state following the Civil War, and it was said that one-third of the whole population were paupers, all their property except lands having disappeared; that one-half of the people did not own land enough to afford burial for that proportion of the population; and against those who did own land the ante-war debts were piled mountain high. It was submitted that the state, on being rehabilitated, was not bound to allow the creditor to strip the few self-supporting land owners of their means of existence and thereby add them to the vast army of the impoverished; but that it had the right to defer a portion of the creditor’s claim until the prostrated community had opportunity to recoup some of its losses. This court, in response, reviewed the history of the adoption of the contract impairment clause and held the state constitutional provision invalid. “ ‘ Policy and humanity,’ ” it said, “ are dangerous guides in the discussion of a legal proposition. He who follows them far is apt to bring back the means of error and delusion. The prohibition contains no qualification, and we have no judicial authority to interpolate any. Our duty is simply to execute it.” [Italics added.] Barnitz v. Beverly was decided May 18,1896. A law of Kansas extended the period of redemption from a sale under a mortgage for a period of eighteen months, during which time the mortgagor was to remain in possession and receive rents and profits, except as necessary for repairs. HOME BLDG. & L. ASSN. v. BLAISDELL. 471 398 Sutherland, J., dissenting. The act was passed in 1893 in the midst of another panic, the severity of which, still within the memory of the members of this court, is a matter of common knowledge. The effects of that panic extended into every form of industry; bank failures were on an unprecedented scale; more than half the railroads of the country were in the hands of receivers; securities fell to fifty per cent., often to twenty-five per cent., of their former value; commercial failures and unemployment became general; heavy inroads were made upon public and private resources in caring for the hungry and destitute; 17 great bodies of idle men—the so-called “ industrial armies ”—marched toward Washington, feeding like locusts upon the country through which they passed. These conditions were brought to the attention of this court. In addition, the Supreme Court of Kansas, 55 Kans. 466, 484r-485; 42 Pac. 725, 731, had relied upon them as a justification for the legislation, and had inquired why the state legislature in a time of general depression could not “ extend the indefinite estate impliedly reserved by the mortgagor, as the federal courts of equity do in particular cases, beyond the six months allowed by the general practice?” In response to all of which, this court, after reviewing its former decisions, held the statute invalid as applied to a sale under a mortgage executed before its passage. The present exigency is nothing new. From the beginning of our existence as a nation, periods of depression, of industrial failure, of financial distress, of unpaid and unpayable indebtedness, have alternated with years of plenty. The vital lesson that expenditure beyond income begets poverty, that public or private extrava- 17 See Dewey, supra, note 15, p. 444, et seq.; Andrews, The Last Quarter Century in the United States, Vol. II, p. 301, et seq. 472 OCTOBER TERM, 1933. Sutherland, J., dissenting. 290 U.S. gance, financed by promises to pay, either must end in complete or partial repudiation or the promises be fulfilled by self-denial and painful effort, though constantly taught by bitter experience, seems never to be learned; and the attempt by legislative devices to shift the misfortune of the debtor to the shoulders of the creditor without coming into conflict with the contract impairment clause has been persistent and oft-repeated. The defense of the Minnesota law is • made upon grounds which were discountenanced by the makers of the Constitution and have many times been rejected by this court. That defense should not now succeed, because it constitutes an effort to overthrow the constitutional provision by an appeal to facts and circumstances identical with those which brought it into existence. With due regard for the processes of logical thinking, it legitimately cannot be urged that conditions which produced the rule may now be invoked to destroy it. The lower court, and counsel for the appellees in their argument here, frankly admitted that the statute does constitute a material impairment of the contract, but contended that such legislation is brought within the state power by the present emergency. If I understand the opinion just delivered, this court is not wholly in accord with that view. The opinion concedes that emergency does not create power, or increase granted power, or remove or diminish restrictions upon power granted or reserved. It then proceeds to say, however, that while emergency does not create power, it may furnish the occasion for the exercise of power. I can only interpret what is said on that subject as meaning that while an emergency does not diminish a restriction upon power it furnishes an occasion for diminishing it; and this, as it seems to me, is merely to say the same thing by the use of another set of words, with the effect of affirming that which has just been denied. HOME BLDG. & L. ASSN. v. BLAISDELL. 473 398 Sutherland, J., dissenting. It is quite true that an emergency may supply the occasion for the exercise of power, depending upon the nature of the power and the intent of the Constitution with respect thereto. The emergency of war furnishes an occasion for the exercise of certain of the war powers. This the Constitution contemplates, since they cannot be exercised upon any other occasion. The existence of another kind of emergency authorizes the United States to protect each of the states of the Union against domestic violence. Const. Art. IV, § 4. But we are here dealing not with a power granted by the Federal Constitution, but with the state police power, which exists in its own right. Hence the question is not whether an emergency furnishes the occasion for the exercise of that state power, but whether an emergency furnishes an occasion for the relaxation of the restrictions upon the power imposed by the contract impairment clause; and the difficulty is that the contract impairment clause forbids state action under any circumstances, if it have the effect of impairing the obligation of contracts. That clause restricts every state power in the particular specified, no matter what may be the occasion. It does not contemplate that an emergency shall furnish an occasion for softening the restriction or making it any the less a restriction upon state action in that contingency than it is under strictly normal conditions. The Minnesota statute either impairs the obligation of contracts or it does not. If it does not, the occasion to which it relates becomes immaterial, since then the passage of the statute is the exercise of a normal, unrestricted, state power and requires no special occasion to render it effective. If it does, the emergency no more furnishes a proper occasion for its exercise than if the emergency were non-existent. And so, while, in form, the suggested distinction seems to put us forward in a straight line, in reality it simply carries us back in a 474 290U.S. OCTOBER TERM, 1933. Sutherland, J., dissenting. circle, like bewildered travelers lost in a wood, to the point where we parted company with the view of the state court. If what has now been said is sound, as I think it is, we come to what really is the vital question in the case: Does the Minnesota statute constitute an impairment of the obligation of the contract now under review? In answering that question we must first of all distinguish the present legislation from those statutes which, although interfering in some degree with the terms of contracts, or having the effect of entirely destroying them, have nevertheless been sustained as not impairing the obligation of contracts in the constitutional sense. Among these statutes are such as affect the remedy merely, as to which this court said in Bronson v. Kinzie, supra, at p. 316, and repeated in Edwards v. Kearzey, supra, p. 604, “ Whatever belongs merely to the remedy may be altered according to the will of the state, provided the alteration does not impair the obligation of the contract. But if that effect is produced, it is immaterial whether it is done by acting on the remedy or directly on the contract itself. In either case it is prohibited by the Constitution.” Another class of statutes is illustrated by those exempting from execution and sale certain classes of property, like the tools of an artisan. Chief Justice Taney, in Bronson v. Kinzie, supra, speaking obiter, said that a state might properly exempt necessary implements of agriculture, or the tools of a mechanic, or articles of necessity in household furniture. But this court, in Edwards v. Kearzey, supra, struck down a provision of the North Carolina constitution which exempted every homestead, and the dwelling and buildings used therewith, not exceeding in value $1,000, on the ground of its unconstitutionality as applied to a contract already in existence. Referring to the opinion in Bronson v. Kinzie, the court said (p. 604) HOME BLDG. & L. ASSN. v. BLAISDELL. 475 398 Sutherland, J., dissenting. that the Chief Justice seems to have had in his mind the maxim “ de minimis,” etc. “ Upon no other ground can any exemption be justified.” It is quite true also that “ the reservation of essential attributes of sovereign power is also read into contracts ”; and that the legislature cannot “ bargain away the public health or the public morals.” General statutes to put an end to lotteries, the sale or manufacture of intoxicating liquors, the maintenance of nuisances, to protect the public safety, etc., although they have the indirect effect of absolutely destroying private contracts previously made in contemplation of a continuance of the state of affairs then in existence but subsequently prohibited, have been uniformly upheld as not violating the contract impairment clause. The distinction between legislation of that character and the Minnesota statute, however, is readily observable. It may be demonstrated by an example. A, engaged in the business of manufacturing intoxicating liquor within a state, makes a contract, we will suppose, with B to manufacture and deliver at a stipulated price and at some date in the future, a quantity of whisky. Before the day arrives for the performance of the contract the state passes a law prohibiting the manufacture and sale of intoxicating liquor. The contract immediately falls because its performance has ceased to be lawful. This is so because the contract is made upon the implied condition that a particular state of things shall continue to exist, “ and when that state of things ceases to exist the bargain itself ceases to exist.” Marshall v. Glanvill, [1917] 2 K.B. 87, 91. In that case the plaintiff had been employed by the defendants upon a contract of service. While the contract was in force the country became involved in the World War, and plaintiff was called into the military service. The court held that this rendered performance unlawful and that the contract was at an end. It said: 476 290 U.S. OCTOBER TERM, 1933. Sutherland, J., dissenting. a Here the parties clearly made their bargain on the footing that it should continue lawful for the plaintiff to render and for the defendants to accept his services. The rendering and acceptance of these services ceased to be lawful in July, 1916, and thereupon the bargain came to an end.” In In re Shipton, Anderson & Co., [1915] 3 K.B. 676, a parcel of wheat then lying in a warehouse was sold for future payment and delivery. The wheat was subsequently requisitioned by the English government, and the sellers became unable to deliver. The Court of King’s Bench Division held that the sellers were not liable. Darling, Justice, agreeing with the opinion of Lord Reading, said (pp. 688-684): “ If one contracts to do what is then illegal, the contract itself is altogether bad. If after the contract has been made it cannot be performed without what is illegal being done, there is no obligation to perform it. In the one case the making of the contract, in the other case the performance of it, is against public policy. It must be here presumed that the Crown acted legally, and there is no contention to the contrary. We are in a state of war; that is notorious. The subject-matter of this contract has been seized by the State acting for the general good. Salus populi suprema lex is a good maxim, and the enforcement of that essential law gives no right of action to whomsoever may be injured by it.” The general subject is discussed by this court in Omnia Co. v. United States, 261 U.S. 502; and it is there pointed out (p. 513) that the effect of such a requisition is not to appropriate the contract but to frustrate it—an essentially different thing. The same distinction properly may be made as to the contract impairment clause, in respect of subsequent state legislation rendering unlawful a state of things which was lawful when an obligation relating thereto was contracted. HOME BLDG. & L. ASSN. v. BLAISDELL. 477 398 Sutherland, J., dissenting. By such legislation the obligation is not impaired in the constitutional sense. The contract is frustrated—it disappears in* virtue of an implied condition to that effect read into the contract itself. Thus, in F. A. Tamplin Steamship Co. v. Anglo-Mexican Petroleum Products Co., [1916] 2 A.C. 397, the House of Lords had before it a case where a steamer, then subject to a charter party having nearly three years to run, had been requisitioned by the Admiralty. The applicable rule was there stated to be that the court should examine the contract and the circumstances in which it was made in order to see whether or not from their nature the parties must have made their bargain on the footing that a particular state of things would continue to exist. And if they must have done so, a term to that effect would be implied, though not expressed in the contract. In Metropolitan Water Board v. Dick, Kerr & Co., [1918] A.C. 119, 127-128, 137, that rule was reaffirmed, with the additional statement that a subsequent law might be the cause of an impossibility of performance, by taking away something from the control of the party as to which thing he had contracted to do or not to do something else; and that the court must determine whether this contingency is of such a character that it can reasonably be implied to have been in the contemplation of the parties when the contract was made. Bearing in mind these aids toward determining whether such an implied condition may be read into, a particular contract, let us revert to the example already given with respect to an agreement for the manufacture and sale of intoxicating liquor. And let us suppose that the state, instead of passing legislation prohibiting the manufacture and sale of the commodity, in which event the doctrine of implied conditions would be pertinent, continues to recognize the general lawfulness of the business, but, because of what it conceives to be a justifying emergency, provides that the time for the performance of existing 478 290 U.S. OCTOBER TERM, 1933. Sutherland, J., dissenting. contracts for future manufacture and sale shall be extended for a specified period of time. It is perfectly admissible, in view of the state power to prohibit the business, to read into the contract an implied proviso to the effect that the business of manufacturing and selling intoxicating liquors shall not, prior to the date when performance is due, become unlawful; but in the case last put, to read into the contract a pertinent provisional exception in the event of intermeddling state action would be more than unreasonable, it would be absurd, since we must assume that the contract was made on the footing that so long as the obligation remained lawful the impairment clause would effectively preclude a law altering or nullifying it however exigent the occasion might be. That, in principle, is precisely the case here. The contract is to repay a loan within a fixed time, with the express condition that upon failure the property given as security shall be sold, arid that, in the absence of a timely redemption, title shall be vested absolutely in the purchaser. This contract was lawful when made; and it has never been anything else. What the legislature has done is to pass a statute which does not have the effect of frustrating the contract by rendering its performance unlawful, but one which, at the election of one of the parties, postpones for a time the effective enforcement of the contractual obligation, notwithstanding the obligation, under the exact terms of the contract, remains lawful and possible of performance after the passage of the statute as it was before. The rent cases—Block v. Hirsh, 256 U.S. 135; Marcus Brown Co. v. Feldman, 256 U.S. 170; Levy Leasing Co. v. Siegel, 258 U.S. 242—which are here relied upon, dealt with an exigent situation due to a period of scarcity of housing caused by the war. I do not stop to consider the distinctions between them and the present case or to do more than point out that the question of contract im- HOME BLDG. & L. ASSN. v. BLAISDELL. 479 398 Sutherland, J., dissenting. pairment received little, if any, more than casual consideration. The writer of the opinions in the first two cases, speaking for this court in a later case, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416, characterized all of them as having gone “ to the verge of the law.” It, therefore, seems pertinent to say that decisions which confessedly escape the limbo of unconstitutionality by the exceedingly narrow margin suggested by this characterization should be applied toward the solution of a doubtful question arising in a different field with a very high degree of caution. Reasonably considered they do not foreclose the question here involved, and it should be determined upon its merits without regard to those cases. We come back, then, directly, to the question of impairment. As to that, the conclusion reached by the court here seems to be that the relief afforded by the statute does not contravene the constitutional provision because it is of a character appropriate to the emergency and allowed upon what are said to be reasonable conditions. It is necessary, first of all, to describe the exact situation. Appellees obtained from appellant a loan of $3,800; and to secure its payment, executed a mortgage upon real property consisting of land and a fourteen-room house and garage. The mortgage contained the conventional Minnesota provision for foreclosure by advertisement. The mortgagors agreed to pay the debt, together with interest and the taxes and insurance on the property. They defaulted; and, in strict accordance with the bargain, appellant foreclosed the mortgage by advertisement and caused the premises to be sold. Appellant itself bought the property at the sale for a sum equal to the amount of the mortgage debt. The period of redemption from that sale was due to expire on May 2, 1933; and, assuming no redemption at the end of that day, under the law in force 480 290 UK OCTOBER TERM, 1933. Sutherland, J., dissenting. when the contract was made and when the property was sold and in accordance with the terms of the mortgage, appellant would* at once have become the owner in fee and entitled to the immediate possession of the property. The statute here under attack was passed on April 18, 1933. It first recited and declared that an economic emergency existed. As applied to the present case, it arbitrarily extended the period of redemption expiring on May 2, 1933, to May 18, 1933—a period of sixteen days; and provided that the mortgagor might apply for a further extension to the district court of the county. That court was authorized to extend the period to a date not later than May 1, 1935, on the condition that the mortgagor should pay to the creditor all or a reasonable part of the income or rental value, as to the court might appear just and equitable, toward the payment of taxes, insurance, interest and principal mortgage indebtedness, and at such times and in such manner as should be fixed by the court. The court to whom the application in this case was made extended the time until May 1, 1935, upon the condition that payment by the mortgagor of the rental value, forty dollars per month, should be made. It will be observed that whether the statute operated directly upon the contract or indirectly by modifying the remedy, its effect was to extend the period of redemption absolutely for a period of sixteen days, and conditionally for a period of two years. That this brought about a substantial change in the terms of the contract reasonably cannot be denied. If the statute was meant to operate only upon the remedy, it, nevertheless, as applied, had the effect of destroying for two years the right of the creditor to enjoy the ownership of the property, and consequently the correlative power, for that period, to occupy, sell or otherwise dispose of it as might seem fit. This postponement, if it had been unconditional, undoubtedly would have constituted an unconstitutional HOME BLDG. & L. ASSN. v. BLAISDELL. 481 398 Sutherland, J., dissenting. impairment of the obligation. This court so decided in Bronson v. Kinzie, supra, where the period of redemption was extended for a period of only twelve months after a sale under a decree; in Howard v. Bugbee, supra, where the extension was for two years; and in Barnitz v. Beverly, supra, where the period was extended for eighteen months. Those cases, we may assume, still embody the law, since they are not overruled. The only substantial difference between those cases and the present one is that here the extension of the period of redemption and postponement of the creditor’s ownership, is accompanied by the condition that the rental value of the property shall, in the meantime, be paid. Assuming for the moment, that a statute extending the period of redemption may be upheld if something of commensurate value be given the creditor by way of compensation, a conclusion that payment of the rental value during the two years’ period of postponement is even the approximate equivalent of immediate ownership and possession is purely gratuitous. How can such payment be regarded, in any sense, as compensation for the postponement of the contract right? The ownership of the property to which petitioner was entitled carried with it not only the right to occupy or sell it, but, ownership being retained, the right to the rental value as well. So that in the last analysis petitioner simply is allowed to retain a part of what is its own as compensation for surrendering the remainder. Moreover, it cannot be foreseen what will happen to the property during that long period of time. The buildings may deteriorate in quality; the value of the property may fall to a sum far below the purchase price; the financial needs of appellant may become so pressing as to render it urgently necessary that the property shall be sold for whatever it may bring. However these or other supposable contingencies may be, the statute denies appellant for a period of two years 15459°—34-------31 482 OCTOBER TERM, 1933. Sutherland, J., dissenting. 290U.S. the ownership and possession of the property—an asset which, in any event, is of substantial character, and which possibly may turn out to be of great value. The statute, therefore, is not merely a modification of the remedy; it effects a material and injurious change in the obligation. The legally enforceable right of the creditor when the statute was passed was, at once upon default of redemption, to become the fee simple owner of the property. Extension of the time for redemption for two years, whatever compensation be given in its place, destroys that specific right and the correlative obligation, and does so none the less though it assume to create in invitum another and different right and obligation of equal value. Certainly, if A should contract with B to deliver a specified quantity of wheat on or before a given date, legislation, however much it might purport to act upon the remedy, which had the effect of permitting the contract to be discharged by the delivery of com of equal value, would subvert the constitutional restriction. A statute which materially delays enforcement of the mortgagee’s contractual right of ownership and possession does not modify the remedy merely; it destroys, for the period of delay, all remedy so far as the enforcement of that right is concerned. The phrase, “ obligation of a contract,” in the constitutional sense imports a legal duty to perform the specified obligation of that contract, not to substitute and perform, against the will of one of the parties, a different, albeit equally valuable, obligation. And a state, under the contract impairment clause, has no more power to accomplish such a substitution than has one of the parties to the contract against the will of the other. It cannot do so either by acting directly upon the contract, or by bringing about the result under the guise of a statute in form acting only upon the remedy. If it could, the efficacy of the constitutional restriction would, in large measure, be made to disappear. HOME BLDG. & L. ASSN. v. BLAISDELL. 483 398 Sutherland, J., dissenting. As this court has well said, whatever tends to postpone or retard the enforcement of a contract, to that extent weakens the obligation. According to one Latin proverb, “ He who gives quickly, gives twice,” and according to another, “ He who pays too late, pays less.” “Any authorization of the postponement of payment, or of means by which such postponement may be effected, is in conflict with the constitutional inhibition.” Louisiana v. New Orleans, 102 U.S. 203, 207. I am not able to see any real distinction between a statute which in substantive terms alters the obligation of a debtor-creditor contract so as to extend the time of its performance for a period of two years, and a statute which, though in terms acting upon the remedy, is aimed at the obligation (as distinguished, for example, from the judicial procedure incident to the enforcement thereof) and which does in fact withhold from the creditor, for the same period of time, the stipulated fruits of his contract. I quite agree with the opinion of the court that whether the legislation under review is wise or unwise is a matter with which we have nothing to do. Whether it is likely to work well or work ill presents a question entirely irrelevant to the issue. The only legitimate inquiry we can make is whether it is constitutional. If it is not, its virtues, if it have any, cannot save it; if it is, its faults cannot be invoked to accomplish its destruction. If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned. Being unable to reach any other conclusion than that the Minnesota statute infringes the constitutional restriction under review, I have no choice but to say so. I am authorized to say that Mr. Justice Van Devan-ter, Mr. Justice McReynolds and Mr. Justice Butler concur in this opinion. 484 OCTOBER TERM, 1933. 290U.S. Syllabus. ALEXANDER, COLLECTOR OF INTERNAL REVENUE, v. COSDEN PIPE LINE CO. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. No. 54. Argued November 10, 13, 1933.—Decided January 8, 1934. 1. When a judgment involving several distinct money claims of the plaintiff allows some but rejects or reduces others, and the defendant alone seeks review, the plaintiff will not be heard against the parts that are adverse to him, and the defendant will not be heard against the parts in his favor. P. 487. 2. In determining a case on certiorari, the Court need not consider an error set up in the petition for the writ which was expressly abandoned on the oral argument by counsel for the sole petitioner. P. 488. 3. A bill of exceptions, examined and found to contain all of the evidence, notwithstanding a concluding stipulation of counsel and certificate of the judge declaring that it contained all of the evidence “ material to the defendant’s assignment of errors.” P. 488. 4. A statement in a stipulation and certificate that a bill of exceptions contains all of the evidence material to the assignment of errors, implies that it contains all of the evidence, where one of the errors assigned is that the evidence was insufficient to support the judgment. P. 489. 5. Rules relating to the condensation and narration of evidence should be respected by the bar and by trial judges, and should be appropriately enforced by appellate courts. P. 490. 6. Failure to comply with a rule of the Circuit Court of Appeals requiring condensation and narration of levidence in bills of exceptions, held not a sufficient ground for rejection of the bill in this Court in the particular circumstances; where the infraction was not of much moment and where the party objecting to the bill had consented to its allowance by the District Judge, and the Court of Appeals had considered and acted upon the bill without criticising it. P. 491. 7. In determining whether special findings of fact made in a trial to the District Court support the judgment rendered on them, a finding not based on sufficient evidence is put aside. P. 494. 8. A taxing Act should be construed reasonably, with recourse to all of its provisions to ascertain its intent. P. 496. ALEXANDER v. COSDEN CO. 485 484 Opinion of the Court. 9. The Revenue Acts of 1917 and 1918, in imposing an excise tax on the transportation of oil by pipe-line, equivalent to a designated per centum “ of the amount paid therefor,” show by the context an intention to tax all transportation of oil by pipe-line, whether the pipe-line be a common or a private carrier, and whether the oil it transports belong to itself or to others, and to lay the tax equally on all such transportation, and to measure it by the customary rate if the amount collected by the carrier is below what would be reasonably appropriate to the service rendered. P. 495. 10. The services in this case were for “ gathering” the oil; the taxes should have been computed on the appropriate charge for gathering only; the inclusion in the Commissioner’s computation of an additional amount for trunk-line services was erroneous. P. 498. 63 F. (2d) 663, reversed. Certiorari * to review a judgment in part affirming and in part disapproving and modifying a judgment recovered by the Pipe Line Company from the collector. The action was for money erroneously collected as taxes. There were several distinct claims or causes of action. By stipulation it was tried without a jury. Solicitor General Biggs, with whom Messrs. J. Louis Monarch and F. Edward Mitchell were on the brief, for petitioner. Mr. Richard H. Wills, with whom Mr. James C. Denton was on the brief, for respondent. Mr. Justice Van Devanter delivered the opinion of the Court. This was an action at law brought in the District Court for the Western District of Oklahoma to recover from the defendant moneys alleged to have been wrongfully exacted by him, as collector of internal revenue, from the plaintiff as excise taxes on the transportation of crude oil through the latter’s pipe line. * See Table of Cases Reported in this volume. 486 OCTOBER TERM, 1933. Opinion of the Com,t. 290 U.S. Apart from matters eliminated during the pendency of the suit, four distinct claims were asserted. The first related to the transportation of 2,022,248.41 barrels for Cosden and Company between November 1, 1917, and March 31, 1919, whereon an additional assessment of $15,066.87 was made and collected. The second related to the transportation of 20,644,020.34 barrels for the same company between April 1, 1919, and March 31, 1921, whereon an additional assessment of $170,946.04 was made and collected—of which sum a refund of $5,793.76 was made pending the suit, thereby reducing the claim to $165,152.28. The third related to the transportation of 3,666,048.39 barrels for the same company between July 1, 1918, and March 31, 1919, whereon an assessment of $36,666.50 was made and collected. The fourth related to the transportation of 99,590.31 barrels for the Pierce Oil Corporation between November 1, 1917, and March 31, 1919, whereon an assessment of $995.90 was made and collected. The issues were tried under a written stipulation waiving a jury, and the court made special findings of fact and declarations of law whereon it rendered a judgment awarding the plaintiff the full amount of each of the first two claims, $18,333.25 on the third, and $746.92 on the fourth—with interest on each of these sums. The defendant appealed to the Circuit Court of Appeals, which sustained the awards on the first and second claims, wholly rejected the third, reduced the award on the fourth $375.71, and accorded the plaintiff a limited time within which to file a remittitur of the amount awarded on the third claim and of $375.71 of that awarded on the fourth. The remittitur was seasonably filed and thereupon the Court of Appeals affirmed the judgment of the trial court as modified and reduced by the remittitur. 63 F. (2d) 663. The case is here on certiorari. ALEXANDER v. COSDEN CO. Opinion of the Court. 487 484 The discussion in the briefs makes it advisable to point out at the outset that we have no occasion to reexamine the third and fourth claims. In the District Court each of these claims was allowed in part and rejected in part. The defendant alone appealed. In the Court of Appeals the third claim was rejected and the award on the fourth reduced. The defendant alone petitioned for a review here. In this situation the plaintiff is not entitled to be heard in opposition to the parts of the decision of the Court of Appeals which were adverse to it—as were the rejection of the third claim and the reduction of the award on the fourth—but only in support of the parts which were in its favor. As to the former it has acquiesced and become concluded by not seasonably petitioning for a review.1 And the defendant is not entitled to complain of the parts of the decision which were in his favor—as were the rejection of the third claim and the reduction of the award on the fourth—but only of such as were adverse to him2—as was the refusal wholly to disapprove, or further to reduce, the award on the fourth claim. It is doubtful that the defendant’s petition for certiorari contains any 1 United States v. Hickey, YJ Wall. 9, 13; United States v. Black-jeather, 155 U.S. 180, 186; Chittenden v. Brewster, 2 Wall. 191, 196; The William Bagaley, 5 Wall. 377; Canal Co. v. Gordon, 6 Wall. 561, 568; The Maria Martin, 12 Wall. 31, 40-41; New Orleans Mail Co. v. Flanders, 12 Wall. 130, 134-135; Mount Pleasant v. Beckwith, 100 U.S. 514, 527; Clark n. Killian, 103 U.S. 766, 769; Loudon v. Taxing District, 104 U.S. 771, 774; Hubbard v. Tod, 171 U.S. 474, 494; Bolles n. Outing Co., 175 U.S. 262, 268; Landram v. Jordan, 203 U.S. 56, 62; Peoria & P. U. Ry. Co. v. United States, 263 U.S. 528, 536; United States v. American Ry. Exp. Co., 265 U.S. 425, 435; Federal Trade Comm’n v. Pacific States Paper Trade Assn., 273 U.S. 52, 66; Charles Warner Co. v. Independent Pier Co., 278 U.S. 85, 91; Langnes v. Green, 282 U.S. 531, 538. 2 Maryland Insurance Co. v. Woods, 6 Cranch 29, 42; Coming v. Troy Iron & Nail Factory, 15 How. 451, 464-465; Chittenden v. Brewster, 2 Wall. 191, 196; Loudon v. Taxing District, 104 U.S. 771, 774. 488 290U.S. OCTOBER TERM, 1933. Opinion of the Court. real challenge of the ruling of the Court of Appeals on the fourth claim. But, be this as it may, the Solicitor General, speaking for the defendant, in the argument at the bar disclaimed any purpose to ask this Court to reexamine or disturb that ruling. This disclaimer, made on behalf of the only party who then had any semblance of right to ask such a reexamination, eliminated any need for considering the fourth claim just as a like disclaimer in the petition for certiorari would have done. For these reasons it should be understood that the merits of the third and fourth claims are not here under consideration, but are regarded as settled by the decision of the Court of Appeals. Another matter bearing on the scope of the present examination needs attention. The defendant asks that the evidence be examined in connection with his motion for judgment thereon which was made and denied in the trial court, and the plaintiff answers that this cannot be done because the evidence has not been brought into the record by a proper bill of exceptions. The objections which the plaintiff makes to the bill are that it does not purport to contain all of the evidence but only such as is material to the defendant’s assignment of errors, and that the evidence, both testimonial and documentary, appearing therein is set out without any attempt at condensation or narration. Rule 10 of the Court of Appeals,3 like Rule 8 of this Court,4 provides: u Only so much of the evidence shall be embraced in a bill of exceptions as may be necessary to present clearly the questions of law involved in the rulings to which exceptions are reserved, and such evidence as is embraced therein shall be set forth in condensed and narrative form, save as a proper understanding of the questions presented may require that parts of it be set forth otherwise.” • Caldwell v. United States, 36 F. (2d) 738, 739-740. 4 286 U.S. 598. ALEXANDER v. COSDEN CO. Opinion of the Court. 489 484 The bill, after the usual introductory recitals, contains an agreed statement of particular facts, sets out other evidence produced by the plaintiff and by the defendant, each in turn, and then says “ This is all the evidence offered and taken at the trial.” Other statements follow to the effect that later on, but before the finding, the court admitted an additional and specified item of evidence to which the parties agreed; that at the close of the evidence the defendant moved for judgment in his favor as to each of the claims because there was not sufficient evidence to support a finding or judgment against him; and that the court denied this motion and the defendant reserved an exception. At the end is a stipulation wherein the parties, through their counsel, agree that the bill contains “ all the evidence material to the defendant’s assignment of errors” and all exceptions taken in the course of the trial, and consent that “ the same be settled and filed as the settled bill of exceptions ”; and then follows a certificate by the trial judge authenticating and allowing the bill in the same terms that are used in the stipulation. The reference in the stipulation and certificate to “ the defendant’s assignment of errors ” is explained by the fact that during the period given for the preparation and presentation of the bill the defendant had sought and the trial judge had allowed an appeal to the Circuit Court of Appeals; and with his application for the appeal the defendant had presented and filed an assignment of errors showing the rulings and questions which he intended to present on the appeal—one of the rulings being the denial of his motion at the close of the evidence for judgment thereon in his favor. A survey of the bill from its beginning to its end shows, we think, that it contains all of the evidence. The statement to that effect inthe body of the bill is not overcome or qualified by the statement in the concluding stipulation and certificate that it contains all that is “material to the 490 290 U.S. OCTOBER TERM, 1933. Opinion of the Court. defendant’s assignment of errors.” When regard is had to the circumstances in which the later statement was made there is no room to doubt that it was intended to be, and is, as comprehensive as the first. As the defendant’s assignment of errors, to which the stipulation and certificate refer, brought in question the sufficiency of the evidence to support the judgment, the conclusion is unavoidable that counsel when entering into the stipulation and the trial judge when giving the certificate understood that all the evidence was material to the solution of that question, and that they used the terms appearing in the stipulation and certificate as comprehending, not merely a part of the evidence, but all of it.5 It is true that the evidence is set out without any attempt at condensation or narration; but it is also true that the plaintiff expressly consented to the allowance of the bill in this form, and that the Court of Appeals not only made no criticism of the bill but examined the evidence and rejected the third claim as without necessary evidential support. The evidence is not of large volume. Besides 5 pages of stipulated facts, it includes 20 pages of testimony given by three witnesses and 30 pages of documents. Without doubt much of it could have been condensed and narrated without in any wise affecting, its purport or substance,8 but other parts, particularly some of the documents, are of such a nature that a literal reproduction well might have been regarded as essential to a proper understanding of them. Of course, the rule relating to condensation and narration should be respected by the bar and by trial judges,7 and should be appropriately enforced by appellate 6 See Waldron v. Waldron, 156 U.S. 361, 378. 6 See Krauss Bros. Co. v. Mellon, 276 U.S. 386, 390-391. 1 Lincoln v. Claflin, 7 Wall. 132, 136-137; Krauss Bros. Co. V. Mellon, supra. ALEXANDER v. COSDEN CO. Opinion of the Court. 491 484 courts;8 but we are of opinion that in the circumstances here shown the plaintiff is not in a position where it with good grace can complain of the form in which the evidence is set out, and that the infraction of the rule in this instance is not of such extent or moment as to justify us in now declining to regard the evidence as brought into the record by the bill. We come then to a consideration of the first and second claims. The errors assigned as to them involve the sufficiency of the evidence to support any judgment against the defendant and the sufficiency of the special findings to support the particular judgment rendered thereon. Most of the pertinent findings have such support in the evidence that they must be accepted here, but some are without such support. We shall summarize the facts found so far as they are pertinent and shall refer to the evidence where there is need for it. In this way the evidence and findings will both be reflected sufficiently for present purposes. The plaintiff, an Oklahoma corporation, owns pipe lines leading into Tulsa, Oklahoma, from oil fields in that State and operates its lines in the transportation, intrastate, of crude oil. All of its stock is owned by Cosden and Company, another Oklahoma corporation, which operates an oil refinery at Tulsa. While not stated in the findings, the evidence shows that the two corporations are under substantially the same management, have the same offices, and in part have the same employes. The plaintiff is engaged chiefly in carrying oil for Cosden and Company, but it also carries large quantities for others. It does not hold itself out as a common 8 See Newton v. Consolidated Gas Co., 258 U.S. 165, 173-174; Houston v. Southwestern Bell Tel. Co., 259 U.S. 318, 325; Barber Asphalt Co. v. Standard Asphalt Co., 275 U.S. 372, 387; Fairbanks, Morse & Co. n. American Valve & Meter Co., 276 U.S. 305, 308, et seq. 492 290 U.S. OCTOBER TERM, 1933. Opinion of the Court. carrier, is not required by .the State to file or publish rates or tariffs, and does not file or promulgate either. Common carrier pipe lines operating in the vicinity of the plaintiff’s lines have both trunk lines and gathering lines—and also tariff stations at which oil is received into the trunk lines. The plaintiff has no tariff stations and receives oil at any place along its lines where it can obtain the oil. Its lines are gathering lines only and comparable only to the gathering lines of the common carriers; and the service which it renders, as compared with that rendered by the common carriers, is a gathering service only. While not appearing in the findings, the stipulated facts included the following: “Any pipe line reaching from any point where oil is purchased or produced to the trunk or main line or to storage tanks at or near the main or trunk line or to tank farms is called a gathering line, without regard to its size, the distance, or the amount of oil carried through such line to the trunk or main pipe line, or to the trunk or main pipe line storage tanks, or to a tank farm. “ The gathering charge is a sum paid for the service rendered in moving oil from the point where it is tendered to or received by the carrier, whether it be the working tank at the well or the storage tanks in the field, to the trunk or main line tariff stations, or to a tank farm of the carrier or to main-line storage tanks. And the rate charged for such gathering service is a flat rate, being the same by the same carrier in the same field, whether the distance traversed by the gathering line be twenty-five yards or twenty-five miles.” All of the matters recited thus far were true during the period of the transportation in question. The oil named in the first and second claims was owned by Cosden and Company and was transported for it by the plaintiff in the latter’s pipe line—that in the first claim between November 1, 1917, and March 31, ALEXANDER v. COSDEN CO. Opinion of the Court. 493 484 1919, and that in the second between April 1, 1919, and March 31, 1921. The plaintiff charged and Cosden and Company paid 5 cents per barrel for the transportation in the first claim and 10 cents per barrel for that in the second; and the plaintiff collected from Cosden and Company and paid over to the revenue collector an excise tax on such transportation computed at the statutory rate on the amounts so charged and paid. The Commissioner of Internal Revenue found and ruled that 20 cents per barrel was the proper charge on which to base and compute the excise tax, and he accordingly made the additional assessments involved in the two claims. The plaintiff paid these assessments to the defendant collector, applied unsuccessfully for a refund and then brought this suit. While there is no finding on the point, the evidence shows that the commissioner in holding 20 cents the proper charge on which to base and compute the tax proceeded on the theory that the transportation included both a gathering and a trunk line service, and determined that 12^ cents was the proper charge for the former and 7% cents for the latter. The usual and customary charge of common carrier pipe lines in that vicinity for gathering service was from 12 to 12^ cents per barrel from November 1, 1917, to December 31, 1921. The plaintiff’s charge to Cosden and Company during that period varied. From a date several months earlier than November 1, 1917, to July 1, 1918, the charge was 5 cents per barrel; from July 1, 1918, to March 31, 1919, no charge was made, although large quantities of oil were then being carried by the plaintiff for that company; and thereafter the charge was 10 cents. Its charges to others also varied. From November 1, 1917, to December 31, 494 OCTOBER TERM, 1933. Opinion of the Court. 290U.S. 1921, they ranged through 7, 10, 12, 15 and 17% cents per barrel; and their average was 13 cents for the first five months of that period and 16.4 cents for the rest of the time—the average being arrived at in each instance by dividing the total receipts from that transportation by the total number of barrels included therein. The plaintiff’s “ actual costs and expenses of carrying oil” were 7.8 cents per barrel in 1918, 7.6 cents in 1919, 10.7 cents in 1920*, and 8.8 cents in 1921. This finding is supported by uncontradicted evidence based on a definite computation made after the oil was carried and the costs and expenses were incurred. Two other findings are to the effect that the charges for carrying oil for Cosden and Company were “ sufficient to take care of the actual costs and expenses ” of that service. But these findings must be put aside. They rest entirely on a statement by one of the witnesses that the charges were fixed periodically by estimating in advance “ what the expenses of operating the pipe line would be ” and “ how much oil would be pumped into the pipe line,” and are inconsistent with uncontradicted evidence showing the amount of oil carried and the actual costs and expenses as definitely computed after the transportation was completed. The trial court concluded as matter of law that where the plaintiff made and collected a charge for carrying oil that charge became, under the applicable statutes, the sole and exclusive basis for the collection of the transportation tax. It therefore held the additional assessments in the first and second claims wholly invalid and gave the plaintiff an award for all that had been exacted from it under those assessments. The Court of Appeals sustained that ruling. The applicable-statutes are §§ 500, 501 and 503, of the Revenue Act of 19179 which was controlling at the time 9 C. 63, 40 Stat. 300, 314. ALEXANDER v. COSDEN CO. 495 484 Opinion of the Court. of the transportation in the first claim, and §§ 500-502 of the Revenue Act of 191810 which was controlling at the time of the transportation in the second claim. The Act of 1917, in § 500 (d) imposed on the “ transportation of oil by pipe line ” a tax “ equivalent to five per centum of the amount paid” therefor; in the first paragraph of § 501, declared the tax should be paid by the person “ paying for ” the transportation; and in § 503 laid on the carrier a duty to collect the tax from the person paying for the transportation, to make informative monthly returns under oath, and to pay to the collector of internal revenue all taxes so collected by it and “ the taxes imposed upon it ” under the second paragraph of § 501, which declared: “ In case such carrier does not, because of its ownership of the commodity transported, or for any other reason, receive the amount which as a carrier it would otherwise charge, such carrier shall pay a tax equivalent to the tax which would be imposed upon the transportation of such commodity if the carrier received payment for such transportation: Provided, That in case of a carrier which on May first, nineteen hundred and seventeen, had no rates or tariffs on file with the proper Federal or State authority, the tax shall be computed on the basis of the rates or tariffs of other carriers for like services as ascertained and determined by the Commissioner of Internal Revenue.” The Act of 1918, in its §§ 500 (e), 501 (a) and 502, reenacted these provisions, save that it increased the tax to eight per centum and substituted for the second paragraph of § 501 the following: “Sec. 501 (d). The tax imposed by subdivision (e) of section 500 shall apply to all transportation of oil by pipe line. In case no charge for transportation is made, 10 C. 18, 40 Stat. 1057, 1101. 496 OCTOBER TERM, 1933. Opinion of the Court. 290 U.S. by reason of ownership of the commodity transported, or for any other reason, the person transporting by pipe line shall pay a tax equivalent to the tax which would be imposed if such person received payment for such transportation, and if the tax can not be computed from actual bona fide rates or tariffs, it shall be computed (1) on the basis of the rates or tariffs of other pipe lines for like services, as determined by the Commissioner, or (2) if no such rates or tariffs exist, on the basis of a reasonable charge for such transportation, as determined by the Commissioner.” We cannot assent to the construction which the courts below placed on these statutes. It must be conceded that the statutes are not happily phrased and that some of their provisions separately considered give color to that construction. But the statutes are to be considered, each in its entirety and not as if each of its provisions was independent and unaffected by the others. Although imposing a tax, they are to be construed reasonably and the intent and purpose of each is to be ascertained by examining all of its provisions. From such an examination we are of opinion that both statutes disclose—that of 1917 by plain implication and that of 1918 by express declaration—an intent and purpose to impose the tax on all “ transportation ” of oil by pipe line—whether the pipe line be a common carrier or a private carrier, and whether it be transporting its own oil or that of others. The revenue bureau has so construed them11 and that construction has received judicial approval.12 11 Treasury Regulations 49, Art. 92, as amended by T.D. 3197 of July 18, 1921; Commissioner’s Instructions September 6, 1921. 12 Meischke-Smith n. Wardell, 286 Fed. 785; Matter v. Derby Oil Co., 16 F. (2d) 717; Dixie Oil Co. v. United States, 24 F. (2d) 804; Alexander v. Carter Oil Co., 53 F. (2d) 964; Standard Oil Co. v. McLaughlin, F. (2d) 111. ALEXANDER v. COSDEN CO. Opinion of the Court. 497 484 Plainly both statutes disclose an intent and purpose to lay the tax equally on all transportation of oil by pipe line and to prevent exceptional relations or conditions from effecting a departure from that standard. In the main both proceed on the assumption that usually carriers will charge and shippers pay the customary commercial rate for the transportation, and therefore that the amount charged and paid will be in most instances a fair basis on which to compute the tax. But neither statute stops there. Both recognize that there may be cases where the carrier, by reason of owning the oil or for other reasons, does not receive the compensation which it otherwise would receive; and both provide, although in somewhat different terms, for using the rates of other carriers for like services as a basis for computing the tax in such cases. We do not overlook the clause “ if the carrier received payment for such transportation ” in the provision of the 1917 act, nor the clause “ in case no charge for transportation is made ” in the provision of the 1918 act. But we think it apparent from each of the acts as a whole that the words “ payment ” and “ charge ” in the quoted clauses mean a payment and charge reasonably appropriate for the service rendered. The provisions in which those words are found distinctly reflect the sense in which the words are used, for they make the rates of other carriers for like services—in short, the commercial rates in that vicinity—an alternative or substitute basis for computing the tax. Obviously the provisions do not mean that a merely nominal payment or charge will avoid the tax, for this would render them absurd; and if that be not their meaning we perceive no meaning other than that before stated which reasonably can be attributed to them. It is said that the Commissioner of Internal Revenue has construed the provisions last considered as not including instances where there is an actual payment, even though it be much below the customary charge, and we 15459°—34-------32 498 290 U.S. OCTOBER TERM, 1933. Opinion of the Court. are asked to give effect to that construction. In this the fact is overlooked that it was the Commissioner who made the additional assessments now in question and refused the application for a refund. But it does appear that while this suit has been pending the Commissioner in several instances has allowed applications for a refund on the basis of the construction now asserted. Of that construction it suffices to say that it has been neither uniform nor of long standing, and that in these circumstances we would not be justified in yielding to it. When the statutes as we construe them are applied to the evidence and the special findings, it is plain that the defendant’s motion for judgment in his favor on the evidence is not well taken as to the first and second claims, and that his objection that the special findings do not as to them support the judgment rendered against him is well taken. Under the evidence, and also the findings, the transportation involved in these claims was a gathering service, and the proper charge therefor on which to base the tax was 12% cents per barrel. The charges of 5 and 10 cents per barrel actually collected by the plaintiff were not appropriate for the service rendered. The plaintiff had been varying its charges without regard to the cost of the service or purpose to make the same charge to one patron as to another, and had no fixed rate that was appropriate. It therefore was necessary to resort to the accustomed rate of other carriers in the same field as a basis for the tax. Their accustomed rate for gathering service was 12% cents per barrel. The additional assessments were made on a basis of 20 cents per barrel, and to the extent that they rested on the difference between a rate of 12% cents and a rate of 20 cents they were excessive and invalid. As the plaintiff had paid the excess it was entitled to recover it, but the recovery should not have included what was attributable to the gathering charge of 12% cents per barrel. N.W. PACIFIC R. CO. v. BOBO. 499 484 , Syllabus. The judgments of both courts must be reversed as to the first and second claims and the cause remanded to the District Court with directions to render judgment on the findings as to these claims in conformity with the views expressed in this opinion and to respect the decision of the Circuit Court of Appeals on the third and fourth claims and the remittitur given thereunder. Judgments reversed. NORTHWESTERN PACIFIC RAILROAD CO. v. BOBO, ADMINISTRATRIX. CERTIORARI TO THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION ONE. No. 163. Submitted December 12, 1933.—Decided January 8, 1934. Decedent had for six months been employed by a railroad to operate the draw and work the signals of its draw-bridge over a stream. His decomposed body was found in the water two weeks from the night on which he last worked and was last seen alive, but the cause of death could not be learned by examination of the corpse. There was evidence tending to show that iron steps, on the outside of the bridge, which he was obliged to use in going to and from an engine house high above the track, and an iron platform at their base, were inadequately guarded, were worn smooth and, when moisture accumulated, were slippery, and that, a few hours after his disappearance, small pieces of wool, possibly from the sheepskin collar of his coat, and a little spot that looked like blood, were found on the edge of the platform. The proofs also showed that he had long used the stairway and platform with ample opportunity to learn of their defects by good lantern light and early daylight; and there was no suggestion of any complaint having been made to the railroad. Held'. 1. There was nothing to show that, if the railroad was negligent in respect of the stairway and platform, the negligence was the proximate cause of the death. P. 503. 2. Proof of negligence alone does not entitle the plaintiff to recover under the Employers’ Liability Act. The negligence must cause the injury. If on the evidence the cause is a matter of 500 OCTOBER TERM, 1933. Opinion of the Court. 290 U.S. pure speculation, the case should be withdrawn from the jury. P. 502. 3. The deceased assumed the risk. P. 509. 129 Cal. App. 273; 19 P. (2d) 10, reversed. Certiorari * to review a judgment of the District Court of Appeal of California sustaining a judgment for the plaintiff in a suit for death by negligence. The Supreme Court of the State denied a hearing. Mr. W. H. Orrick was on the brief for petitioner. Mr. Robert D. Duke was on the brief for respondent. Mr. Justice McReynolds delivered the opinion of the Court. Claiming under the Federal Employers’ Liability Act, respondent sued the petitioner in the Superior Court, Marin County, California, for damages consequent upon the death of her husband, Perry E. Bobo. She maintains that this was the proximate result of the Company’s negligence while it employed him. The complaint alleged— That on February 4, 1930, the decedent Bobo was a tender of the bridge at Grand View, California, a portion of petitioner’s road; “ it was part of said deceased’s duties as such bridge tender to uncouple the tracks and connections on said bridge, work the semaphore signals and open and close the draw of said bridge; that in the course of the performance of said duties said deceased was required to go to the building on the top of said bridge for the purpose of using the mechanism located in said building which was necessary to be used in the opening and closing of said bridge and to work the semaphore signals; that on said last mentioned date it became the duty of said * See Table of Cases Reported in this volume. N.W. PACIFIC R. CO. v. BOBO. 501 499 Opinion of the Court. deceased in the discharge of his duties as such bridge tender to adjust the semaphore signals and that while returning from his duties he slipped upon the steps leading up to said building and was precipitated into the waters of the Petaluma Creek and came to his death.” “ That said defendant was careless and negligent in this, that it failed to provide said deceased a safe place to do the work required of him; that said bridge was installed in an improper manner so as to render the same unsafe and dangerous; that the steps leading to the building on the top of said bridge were constructed, installed, used and maintained by said defendant in an improper, faulty and defective manner so as to render them unsafe and dangerous; that it failed to install proper guard rails on said steps and the approaches thereto so as to protect persons using said bridge and said steps; that it permitted said steps to become uneven so that they sloped and permitted water to collect in depressions on said steps on which said deceased slipped and fell.” A jury found in favor of the respondent and assessed the damages at $12,500. Judgment thereon was affirmed by the District Court of Appeal. The Supreme Court refused to hear the cause and it comes here by certiorari. The petitioner maintained that there was no evidence to show the death resulted from its negligence, also that Bobo assumed the risk, and asked for an instructed verdict. The trial court wrongly, we think, refused this request. The evidence shows that the deceased began his service as bridge tender in August, 1929, and continued until he disappeared February 4, 1930. His working hours were from 9: 00 P. M. to 5 A. M. His duty was to open the draw for the passage of boats, then close it, see that the rails were properly aligned, and set the lights. The draw was operated through an engine housed 26 feet above the 502 290 UB. OCTOBER TERM, 1933. Opinion of the Court. rails. When not actually engaged Bobo ordinarily remained in a shanty near the end of the bridge. To reach or return from the engine he went up or down a flight of 35 iron steps which ran along the outside of the bridge structure, pitched at 48^ degrees to the horizontal. These steps were guarded by a single rail on either side. They were 21 inches long and 8 inches wide. He was furnished with a proper lantern to light the way. February 3, 1930, at 9: 00 o’clock Bobo went to work. He was last seen alive at 11: 00 o’clock; an entry in the log book shows that he opened the draw the next morning at 1: 30. Two weeks thereafter his body, badly decomposed, was found in the water some distance (from the bridge. To determine the cause of death from an examination of this was impossible. When last seen the deceased wore a coat with sheepskin collar. A few hours after his disappearance witnesses discovered on the edge of the iron platform at the foot of the stairway what seemed to be small pieces of wool; also, a little spot which looked like blood. Some of the steps and the platform had become smooth through use during fifteen years or more. During the winter dew often accumulated on these during the night and caused them to become quite slippery. Also, witnesses stated, the stairs and platform were not adequately guarded— the single rail was not enough and was placed too low. Respondent’s theory is that while properly discharging his duties, Bobo slipped, fell into the water, and drowned. Our decisions clearly show that “ proof of negligence alone does not entitle the plaintiff to recover under the Federal Employers’ Liability Act. The negligence complained of must be the cause of the injury. The jury may not be permitted to speculate as to its cause and the case must be withdrawn from its consideration unless there is evidence from which the inference may reasonably be N.W. PACIFIC R. CO. v. BOBO. Opinion of the Court. 503 499 drawn that the injury suffered was caused by the negligent act of the employer.” Atchison, T. & S. F. Ry. Co. v. Toops, 281 U.S. 351,354, 355; Chicago, M. & St. P. R. Co. v. Coogan, 271 U.S. 472; Atchison, T. & S. F. Ry. Co. v. Saxon, 284 U.S. 458. If petitioner was negligent in respect of the stairway and platform, there is nothing whatsoever to show that this was the proximate cause of the unfortunate death. So to conclude would be pure speculation; and for reasons heretofore sufficiently elaborated judgments based upon verdicts so arrived at cannot be permitted to stand. Regarding the defense based upon assumption of the risk, the District Court of Appeal said—“ Here, so far as shown, decedent had never ascended the stairway during the day time, nor was he aware of the conditions which made the structure dangerous. The complaint described the defects which were alleged to have caused the injury; and defendant contends that these allegations show that the cause of death was a risk assumed by decedent, and that consequently no cause of action was stated, citing Bresette v. E. B. & A. L. Stone Co., 162 Cal. 74; 121 Pac. 312; but, as pointed out, the evidence was insufficient to show that decedent knew of the defects described, or that the conditions under which he was employed were such that he must have known them.” With this conclusion we cannot agree. The deceased had gone up and down these open stairs very many times from August to February. He had a proper lantern by the light of which he could easily see the alleged defects. He must have been aware that moisture frequently accumulated. Also, often during the summer and early autumn there was adequate sunlight before five o’clock A.M. to disclose the real conditions. No suggestion is made of any complaint to the Company concerning the stairs or platform. 504 OCTOBER TERM, 1933. Syllabus. 290 U.S. We think the record discloses enough to show that the decedent assumed any alleged risk. Seaboard Air Line Ry. Co. v. Horton, 233 U.S. 492; New Orleans & N. E. R. Co. v. Harris, 247 U. S. 367, 371; Chesapeake & Ohio Ry. Co. v. Kuhn, 284 U.S. 44, 46, 47. Reversed. FIRST NATIONAL BANK OF CINCINNATI et al. v. FLERSHEM et al.* CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. Nos. 62 and 63. Argued November 9, 10, 1933.—Decided January 8, 1934. A corporation, having suffered great losses but still highly solvent, determined to scale down its debenture indebtedness. By its directors, it defaulted on the debenture interest, though fully able to pay, and arranged the formation of a committee which solicited and secured the deposit of 95% of the debentures, to be exchanged, pursuant to a proposed Plan of Reorganization, for debentures greatly reduced in amount and security in a transferee corporation to be formed. Minority debenture holders having brought suit to collect their interest and threatened to levy on corporate assets, the Committee brought this creditors’ bill for the appointment of a receiver, to the allegations and prayer of which the defendant corporation assented. An order of sale of the assets was made, fixing an upset price based on so-called “ scrap ” value. The purchasers at the sale transferred the' corporate assets to the newly formed corporation, and on the joint petition of the purchasers and the new corporation the Plan of Reorganization was found fair and the sale confirmed. Held: 1. That assuming that there was equity jurisdiction, there was no equity in the bill to support the appointment of a receiver or the interference with and discharge of creditors’ rights. P. 515. * Together with No. 64, Arzt et al. v. Flershem et al., and No. 65, Clapier v. Flershem et al., certiorari to the Circuit Court of Appeals for the Third Circuit. FIRST NAT. BANK v. FLERSHEM. 505 504 Syllabus. 2. That where a corporation is solvent, the fact that there have been and may continue to be heavy losses which may result in financial embarrassment in the future affords no basis for a receivership. P. 516. 3. The judicial sale effecting the transfer of all the corporate property to the new corporation and relieving both the old and the new corporation from the payment of the former’s debts, all for the purpose of consummating the Plan of Reorganization, was, as to non-assenting creditors, a fraudulent conveyance. P. 518. 4. The fact that the trustee for the debenture holders, after the filing of the bill, and at the behest of the plaintiffs, declared the entire principal due and secured judgment therefor, thus creating a condition of insolvency, did not cure the lack of equity in the bill when filed. Pusey & Jones Co. v. Hanssen, 261 U.S. 491. P. 519. 5. Non-assenting debenture holders, who were prevented by the order appointing receivers from asserting their rights at law, are entitled to prove their claims in the equity suit and to be paid in full, either out of the funds in the receivers’ hands, or by levy on the corporate property; it appearing that the assets fraudulently conveyed far exceeded the claims of all non-assenting creditors. P. 520. 6. If the right of these debenture holders to sue at law was impaired by the action of the trustee in declaring the principal due and securing judgment therefor, equity will grant relief, because that action, as to them, was fraudulent in law. P. 520. 7. The debenture holders who, by assenting to the Plan, cooperated with the corporation and the committee, are in no position to complain that those who did not assent will fare better than they. P. 521. 8. A bill of review will not lie to review the interlocutory order appointing receivers. P. 522. 9. A non-assenting debenture holder, who by bill in the nature of a bill of review attacked the receivership for want of jurisdiction and prayed that it be vacated, was entitled to have that bill dismissed without prejudice and to prosecute the claim by intervention. P. 522. 10. Debenture holders, and other creditors, who intervened, in subordination to the main proceeding but without assent to the Plan of Reorganization, and objected to confirmation of the sale, 506 OCTOBER TERM, 1933. Statement of the Case. 290U.S. are entitled to that sum in cash which they would have received if the property had been sold at a proper price. Pp. 523, 526. 11. In receivership proceedings, as was held in National Surety Co. N. Coriell, 289 U.S. 426, 436, every important determination by the court calls for an informed, independent judgment; and special reasons exist for requiring adequate, trustworthy information where the jurisdiction rests wholly upon the consent of the defendant who joins in the prayers for relief. P. 525. 12. Failure of dissenting creditors to produce evidence of the value of the property, did not justify its sale, as an entirety. P. 525. 13. The upset price for the corporate property as an entirety and the sale price which was paid on behalf of the Committee, was based on its so-called “ scrap ” value, the assumption being that the dissenting debenture holders for whose protection the price was supposed to be fixed were, by opposing the reorganization, insisting that all the properties, consisting of separate and widely scattered manufacturing plants, be dismantled. The inadequacy of the price was due to the mistaken belief that it was the duty of the court to aid in effectuating the Plan of Reorganization, since a very large majority of the debenture holders had consented to it. Pp. 523-525. 14. A manufacturing company composed of separate plants capable of independent operation need not, as may be necessary with a railroad, be sold as an entirety; and in determining the proper price the court should acquire information not only as to the value of each parcel but as to the possibility of reconstituting one or more of the separate plants as independent operating units and finding markets for them; in making the determination it is proper to take into account the willingness of the Reorganization Committee to purchase the properties as a going concern. P. 526 et seq. 15. The Plan of Reorganization, in providing that debts for merchandise and services shall be paid in full by the new corporation, does not include debts owing by the old company on a purchase of shares in another corporation; and it can not be amended by the court, in this proceeding, to include them. P. 529. 64 F. (2d) 847, reversed as to Nos. 62, 63 and 64, and affirmed, with modification, as to No. 65. Certiorari, 289 U.S. 722, to review the affirmance of decrees in a receivership case. FIRST NAT. BANK v. FLERSHEM. 507 504 Opinion of the Court. Mr. Ralph Royall, with whom Mr. Sidney J. Watts was on the brief, for First National Bank, petitioner in Nos. 62 and 63. Mr. James F. Hubbell for International Heater Co., petitioner in Nos. 62 and 63. Mr. David M. Palley, with whom Messrs. Charles H. Sachs and Louis Caplan were on the brief, for petitioners in Nos. 64 and 65. Mr. Lawrence Bennett, with whom Messrs. Maynard Teall and G. Franklin Ludington were on the brief, for Flershem et al., respondents in Nos. 62, 63, 64, and 65. Mr. Grandin Tracy Vought for Bankers Trust Co., Trustee, respondent in Nos. 62, 63, and 64. Mr. Justice Brandeis delivered the opinion of the Court. These cases, which are here on certiorari to the Circuit Court of Appeals for the Third Circuit (289 U.S. 722), were argued together. They arise out of the Plan of Reorganization of the National Radiator Corporation of Delaware dated February 11,1931. The Reorganization Committee sought to effectuate its Plan through securing, in a suit filed in the western district of Pennsylvania, the appointment of receivers and a judicial sale of the property. In that suit the federal jurisdiction was invoked on the ground of diversity of citizenship; the original plaintiffs being citizens of states other than Delaware and one of them a citizen of the district in which the suit was brought. The Corporation, a citizen of Delaware, was the sole defendant. The District Court appointed receivers, and entered decrees ordering the sale, confirming it, approving the Plan, and directing the receivers to convey and deliver to the purchaser the entire property. The Circuit Court of Appeals affirmed the decrees. 64 F. (2d) 847. The petitioners in No. 64 urge that the final decrees should be reversed as to them on the ground that the court lacked equity jurisdiction or that the bill lacked equity. 508 290 U.S. OCTOBER TERM, 1933. Opinion of the Court. The petitioners in numbers 62 and 63 urge that the decrees should be reversed as to them mainly because the property was sold at a grossly inadequate price. The petitioner in No. 65 is the plaintiff in a bill of review, brought in the same court, praying that the order appointing receivers be vacated. Its dismissal, which was affirmed on appeal, is alleged to have been erroneous. In August, 1927, National Radiator Corporation was organized to effect a merger of six independent manufacturers of radiators and boilers for heating purposes. The net assets of the consolidated corporation, which included ten manufacturing plants located in five states and warehouses in four others, were valued at $26,192,261.72. The capital was represented by 270,000 shares of no-par common stock; 60,000 shares of $7 cumulative convertible no-par preferred stock; and $12,000,000 twenty-year 6^ per cent sinking fund gold debentures. These had been underwritten, and were marketed, by J. &. W. Seligman & Co. and Bankers Trust Company of New York. The terms governing the issue of the debentures and the rights and remedies of the holders thereof were fixed by an indenture between the Corporation and the Bankers Trust Company, as trustee. In January 1931, the management of the Corporation concluded, after months of consideration and conference with the bankers, that a revision of its capital structure was desirable in order to effect a drastic reduction of the debenture liability and the elimination of all fixed charges; and that, to this end, default should be made in the payment of the February 1, 1931 interest on the debentures. Before the merger, the constituent concerns had operated successfully for many years. After the merger the business ceased to prosper. By the end of 1931, all but three of the ten manufacturing plants had been closed; the outlook for the immediate future was FIRST NAT. BANK v. FLERSHEM. 509 504 Opinion of the Court. obscure; arid there was no definite promise of an early recovery in earning power.1 A meeting of the Board of Directors was called for the purpose of taking formal action in respect to the payment of the February 1, 1931 interest. Although the Corporation had suffered (including depreciation and sinking fund charges) large losses in each of the years 1928, 1929 and 1930, its financial condition was still excellent. On December 31, 1930, the ratio of current assets to all current liabilities was more than 10 to 1; the current assets, including raw material and stock in process and manufactured, being $5,054,007.30. The ratio of cash on hand to all current liabilities was then 31/2 to 1. It had $1,701,-899.94 cash and $1,132,563.17 in good accounts receivable; whereas its debts presently payable were only $46,787.60 (besides $293,339.58 for semi-annual interest accrued on the debentures but not payable until February 1, 1931, $151,768.54 of accrued taxes and like items, and $60,000 in notes payable in one, two and three years). The twenty-year debentures outstanding had been reduced from $12,000,000 to $10,716,000.2 After presenting to the Board the December 31, 1930, financial statement, the Chairman said: “ That, although the working capital of the Company as shown by the balance sheet was reasonably ample, it ^he Corporation acquired by the merger ten plants. Two at Johnstown, Pa.; two at New Castle, Pa.; one at Framingham, Mass.; one at Trenton, N.J.; one at Chicago, Ill.; and one each at Utica, Dunkirk, and North Tonawanda, N.Y. One plant had been sold in 1927 and one was shut down. Two were closed Carly in 1929. In 1930 one plant was shut down because of the decline in business, and one in 1931 before the receivers were appointed. 2 On December 30, 1931, at which time Bankers Trust Company, trustee for the debenture holders, recovered judgment for the entire principal outstanding, the amount had been further reduced to $10,673,000. 510 290 U.S. OCTOBER TERM, 1933. Opinion of the Court. was evident that, if the Company were to do an increasing volume of business, it would require the use of all or a substantial part of this cash to carry larger inventories and receivables, and that it would also be necessary to make large expenditures for the design of new products and for equipment necessary in their manufacture. Otherwise, the Chairman pointed out it might well prove to be impossible to maintain the Company’s competitive business as against other enterprises in the industry. The Chairman then referred to the fact that the management had considered the advisability of a reorganization and had requested Messrs. Rudolph B. Flershem [the Chairman of its Executive Committee], Charles 0. Cornell [a member of a firm specializing in reorganizations] and John H. Waters [the corporation’s President] to act as a Committee to consider the matter and to formulate a Plan of Reorganization which might be submitted to the security holders of the Company. The Chairman reported that this Committee was now considering the matter of reorganization and had formed the opinion that a reorganization was advisable.” The recommendations of the management were adopted by the Board of Directors. It was voted to default in the payment of the February 1 interest ; the holders of the debentures were notified that the default was deemed advisable in order to conserve the Corporation’s cash resources; and, under date of February 11, 1931, an elaborate “ Plan and Agreement of Reorganization ” was submitted to the security holders for acceptance. The Plan did not provide for raising additional capital. It was directed solely to reducing the liability on the debentures and eliminating all fixed charges. It provided that a new corporation be organized which would take over all the assets of the existing one, continue the business, and pay in cash all the current debts for merchandise and services; that the debenture indebtedness be FIRST NAT. BANK v. FLERSHEM. 511 504 Opinion of the Court. scaled by giving for each $1,000 of the twenty-year sinking fund debentures, $500 of the new corporation’s 5% fifteen-year income debentures (without sinking fund provision),3 5 shares of its $7 preferred stock (entitled to $100 a share on involuntary liquidation and $115 a share on voluntary liquidation) and 20 shares of its common stock. Holders of the preferred stock in the existing company were to receive therefor, share for share, common stock in the new; and holders of the common stock of the existing company might (upon payment of $1), receive for every three shares a stock warrant, entitling the holder to purchase on or before July 1, 1941, one share of common stock in the new company upon payment of $20 per share. The Plan made no provision for dissenting debenture holders. The Reorganization Committee proceeded to solicit deposits of securities under the Plan. Before September 15, 1931, it had secured the deposit of about 81 per cent, of the debentures and a large part of the preferred and common stocks. On that day it declared the Plan operative. On the same day it made a settlement with an opposing bondholders’ protective committee,4 whereby it secured additional deposits of about 9 per cent, of the debentures. Later, other deposits were received; so that ultimately more than 95 per cent, of all outstanding debentures were deposited under the Plan. Some holders of non-assenting debentures demanded payment of their overdue coupons, including those for the ’Moreover, the existing debentures were entitled to be secured by a prior lien against any subsequent mortgage; the new debentures were entitled only to an equal lien with any subsequent mortgage. The Committee later agreed with an opposition committee (see note 4) that the lien should be prior. ‘The opposition committee were to receive $35,000 for fees and expenses of the members and counsel; and one of its members, to be designated by the Reorganization Committee, was to become a member of the latter and of the board of directors of the new company. 512 290 U.S. OCTOBER TERM, 1933. Opinion of the Court. August 1, 1931 interest. When payment was refused, the holders of $24,000 of the debentures brought an action therefor; and counsel gave notice of intention to bring a further action on coupons attached to others. In order to frustrate these attempts to collect the interest, and in order to compel the minority debenture holders to acquiesce in the Plan of Reorganization, the Committee commenced, on October 5, 1931, this suit praying for the appointment of receivers with power to continue the business ; for a sale of the properties as an entirety; and that meanwhile all creditors be enjoined from enforcing their claims. The bill set forth the existing capital structure, the defaults in the payment of interest, and the Plan of Reorganization. It did not allege that the corporation was unable to pay the interest; or that it was insolvent; or that its assets while ample were not then available for payment of its debts. The bill alleged merely that: “The defendant has no means at hand with which to meet, pay or satisfy the interest charges on the Debentures overdue as aforesaid without seriously jeopardizing the ability of the defendant to continue its business and without making it difficult or impossible for the defendant to secure necessary supplies, materials and labor to continue the operation of its plants and the sale of its products.” “ [That] certain holders of the debentures not deposited with the complainants have threatened to bring suits in respect of interest due on their coupons and may levy execution upon the property of the defendant.” . . . “ [That] unless this Court will take jurisdiction in this cause for the protection of every interest in the property and assets of the defendant, the result will be a multiplicity of suits, a race of diligence, wasteful strife and controversy;” and dismemberment of the properties [and that] “ It is to the best interests of the defendant and the complainants and other creditors of the defendant that FIRST NAT. BANK v. FLERSHEM. Opinion of the Court. 513 504 the going concern value of the defendant’s business and properties should be maintained,” etc. On October 9, 1931, the Corporation entered its appearance; filed an answer admitting the truth of the allegations contained in the bill; joined in the prayers thereof; and consented to the appointment of receivers. On the same day receivers were appointed with power to continue the business; and creditors were restrained from enforcing their claims against the property. One of the receivers was Robert S. Waters, a Vice-President and General Manager of the Corporation and the son of John H. Waters, its President, Chairman of its Board of Directors and member of the Reorganization Committee. The other receiver was William G. Heiner, a Pittsburgh lawyer. With like consent, ancillary receivers were appointed in ten other jurisdictions in which the Corporation had property; and also in Delaware where it had none. When the bill was filed, and when the receivers were appointed, the Corporation could have paid from the cash on hand all overdue debenture interest, as well as all its other current liabilities, without impairing its ability to continue the business. The cash on hand was $1,257,381.59.® The overdue interest amounted then to $709,395.69.® That $547,985.90, the difference between these two amounts, was more than the amount required for working capital is demonstrated by action of the receivers. Two weeks after their appointment, they applied 8 On the day of their appointment, the receivers had also $1,494,-327.22 in sound receivables and at least $34,534.40 in securities convertible in cash. ’The aggregate of other current liabilities (including amounts not then payable) was only $157,511.89. There was besides the August 1, 1931 requirement for the sinking fund. But the debentures held by the Corporation applicable for this purpose reduced the requirement of cash to $43,918.50. . 15459°—34—33 514 290U.S. OCTOBER TERM, 1933. Opinion of the Court. for and obtained from the court leave to invest “ such amount or amounts of cash of the receivership estate as in the judgment of the receivers is not needed at the time for expenses and working capital.” Thereupon, they invested $1,030,000 of the cash in United States treasury certificates of indebtedness and in bank certificates of deposit. The Bankers Trust Company, as trustee for the debenture holders, cooperated in all respects with the Reorganization Committee; served as depositary under the Plan; made formal demand for payment of the overdue interest; and brought, with leave of court, suit for the amount of the overdue interest on all outstanding debentures and recovered judgment therefor; thereupon declared the principal of the debentures immediately payable; recovered judgment therefor on December 30, 1931; and then intervened in the receivership suit as plaintiff. In due course, application was made for an order of sale. The District Court did not make an appraisal by independent experts. In fixing the upset price and in confirming the sale, it relied practically upon the evidence given, or introduced, by officers of the Corporation and the members of the Reorganization Committee. On May 31, 1932, the decree ordering a sale was entered; the upset price was fixed at $2,500,000; and a date after the sale was set for a hearing on its confirmation and on the fairness of the Plan. An appeal from this decree was taken forthwith. At the sale, held August 8, 1932, the property was purchased in behalf of the Committee for $2,550,000 cash. The purchasers assigned their rights to the new company, National Radiator Corporation of Maryland, which agreed to enter an appearance in this cause; and upon the petition of the purchasers and the new company, a decree was entered finding the Plan fair; confirming the sale; and directing that the property be transferred to the new Corporation free a;nd clear of all obligations to creditors of FIRST NAT. BANK v. FLERSHEM. Opinion of the Court. 515 504 the old. Thereupon, the assets were conveyed to the new company, over the objection of some of the petitioners that the appeal already filed rendered the court powerless to take or approve further action. The same counsel acted for the Reorganization Committee, the receivers and the new company. While all the petitioners refused assent to the Plan and all appealed to the Circuit Court of Appeals from action of the District Court, the differences in their several positions and contentions are such as to require separate consideration of their legal rights. First. Amy Arzt and Josephine Ramsey, the petitioners in No. 64, hold $121,000 of the debentures. They appeared specially at the hearing on the confirmation of the sale; objected, among other things, on the ground that the court lacked equity jurisdiction of the subject matter; appealed to the Circuit Court of Appeals from the decree affirming the sale; and contended there and here that, since they refused assent to the Plan, the decree should, as to them, be declared void, and reversed. Whether strictly there was lack of equity jurisdiction, we need not decide. Compare Bumrite Coal Co. v. Riggs, 274 U.S. 208; Lion Bldg. & Surety Co. v. Karatz, 262 U.S. 640; Pusey & Jones Co. v. Hanssen, 261 U.S. 491. For the suit is clearly without equity. The court’s power was invoked for a purpose for which it may not be exercised. We have no occasion to consider under what circumstances a court of equity may, through appointment of receivers and judicial sale, lend aid to protect the interests of creditors and effect a reorganization of an insolvent corporation.7 Nor need we consider under what circum 7 All the cases in which this Court appears to have exercised this power in aid of reorganization upon the ground of insolvency dealt with railroads or other public utilities where continued operation of the property and preservation of its unity seemed to be required in the public interest. Milwaukee & Minnesota R. Co. v. Soutter, 2 516 OCTOBER TERM, 1933. Opinion of the Court. 290 U.S stances a court of equity may, because the assets of a corporation are ample to meet all liabilities but cannot then be immediately converted into cash, properly appoint receivers in order to preserve values and prevent unequal treatment of creditors.8 The case before us is of a different character. The possibility of insolvency was not mentioned when the board of directors voted to make default in the payment of the semi-annual interest on its funded indebtedness and approved the Plan of Reorganization. While defaulting on its debentures, the Corporation continued its business operations and paid promptly its merchandise and other unfunded indebted- Wall. 510; Davis v. Gray, 16 Wall. 203; Union Trust Co. n. Illinois Midland Ry., 117 U.S. 434; Wallace v. Loomis, 97 U.S. 146; Wood v. Guarantee Trust Co., 128 U.S. 416; Quincy, Missouri & Pacific Ry. Co. v. Humphreys, 145 U.S. 82; Louisville Trust Co. v. Louisville, N. A. & C. Ry. Co., U.S. 674; Re Metropolitan Ry. Receivership, 208 U.S. 90; Kansas City Terminal Ry. Co. v. Central Union Trust Co., 271 U.S. 445; compare Sage n. Central R. Co., 99 U.S. 334; Shaw v. Railroad Co., 100 U.S. 605. Moreover, in all those cases the sale was made upon foreclosure. In Brown v. Lake Superior Iron Co., 134 U.S. 530, and Leadville Coal Co. v. McCreery, 141 U.S. 475, where the defendant corporation had allowed the receivership of a rolling mill to proceed nine months without answering and creditors did not object until after the decree of sale, this Court refused to decide whether originally the suit should have been allowed to proceed. The Act of March 3, 1933, c. 204, § 77, 47 Stat. 1474, amending the Bankruptcy Act, provides: “ Reorganization of railroads engaged in interstate commerce, (a) Any railroad corporation may file a petition stating that the railroad corporation is insolvent or unable to meet its debts as they mature and that it desires to effect a plan of reorganization.” 8 In National Surety Co. v. Coriell, 289 U.S. 426, 435, the question before this Court was not the equity of the bill, but the propriety of the procedure pursued by the District Court when approving the plan of reorganization. Compare Michigan v. Michigan Trust Co., 286 U.S. 334, 343; Shapiro v. Wilgus, 287 U.S. 348, 356. Filene’s Sons Co. v. Weed, 245 U.S. 597; Riehle v. Margolies, 279 U.S. 218; Munroe v. Raphael, 288 U.S. 485. FIRST NAT. BANK v. FLERSHEM. Opinion of the Court. 517 504 ness. Insolvency was not present, or imminent. The debentures were not to mature until 1947. Insolvency even in the remote future was not certain. This company defaulted when it was both solvent and liquid. It defaulted, although it had cash in bank equal to three and a half times its total current liabilities, including this interest. It defaulted, although the amount of the cash on hand was so large that, even if the interest had been paid, the surplus of cash remaining would have been more than was then required for working capital. This deliberate disregard by the Corporation of the legal rights of the debenture holders is sought to’be justified on the ground that the management, looking to the long future, concluded that the course taken would enure to the benefit of the business and all concerned—would benefit bondholders as well as stockholders. The default was the first step in a proposed revision of the capital structure by which the funded indebtedness would be cut in half and all fixed charges eliminated. The management, whose competency had been challenged, functioned as members of the Reorganization Committee. Having failed to obtain the assent of all the security holders to its Plan, the Committee sought the aid of a court of equity to compel the minority’s acquiescence; and the Corporation joined as defendant in the prayers of the bill. Reorganization was the primary relief sought. The appointment of the receivers and the judicial sale were the device employed to effect a transfer of the assets of the existing corporation to a new one, thereby relieving both from the payment of the former’s debts.9 By these means 8 Unless all debenture holders assented to the Plan, it could not be effectuated except through the medium of a judicial sale. For the indenture with the Bankers Trust Company, trustee, provided that the property of the Radiator Corporation should not be sold as an entirety unless “ as a part of the purchase price for the sale of the property of the company as an entirety [the purchaser] expressly 518 290U.S. OCTOBER TERM, 1933. Opinion of the Court. it was hoped to subject all dissenting creditors to the condition of impotency so frequently occupied by minority stockholders. The substantive law affords no warrant for so abridging the rights of individual creditors. There is no contention that the corporation laws of Delaware conferred such power upon the board of directors and the majority of the debenture holders. The purpose of the transaction was to hinder and delay certain creditors. If, acting upon purported authorizations from the board of directors and all stockholders, the Radiator Corporation had sought to achieve the purpose of the Reorganization Committee by a voluntary transfer of all of the assets to a new corporation, the conveyance would have been fraudulent in law as to dissenting debenture holders. It would have been a fraudulent conveyance even if the transaction had been entered upon solely in the interest of the debenture holders, in a well-founded belief that it would prove to their advantage, and although full payment of the indebtedness had been contemplated. Means v. Dowd, 128 U.S. 273.10 The illegality would not have been avoided by coupling the transfer later with the appointment of a receiver. Shapiro v. Wilgus, 287 U.S. 348, 354-5. Nor could the illegality be avoided by first securing the appointment of assumes in writing the due and punctual payment of the principal and interest of all the debentures;” whereas the main purpose'of the Plan was to cut in half the amount of the debenture liability and to eliminate all fixed charges through transferring the entire property to a new company. 10 Similarly, it has been held that an assignment made for the benefit of creditors, by one who is solvent, to avoid temporary embarrassment and sacrifice of assets, is a fraudulent conveyance as to those who have not consented; and that the conveyance will be set aside to the extent necessary to permit non-assenting creditors to levy execution. Burt v. McKinstry, 4 Minn. 204; Gardner v. Commercial Nat. Bank, 95 Ill. 298, FIRST NAT. BANK v. FLERSHEM. 519 Opinion of the Court. 504 receivers and then effecting the transfer through a receivers’ sale. Since the purpose was fraudulent in law, the rights of the non-assenting creditors cannot be impaired by the Corporation’s admission of the self-serving allegations of the bill. Compare Harkins v. Brundage, 276 U.S. 36. The power of the District Court was invoked, not to enforce rights of creditors, but to defeat them. The fact that the means employed to effect the fraudulent conveyance was the judgment of a court and not a voluntary transfer does not remove the taint of illegality.11 Jackson v. Ludeling, 21 Wall. 616; compare James v. Railroad Co., 6 Wall. 752; Northern Pacific Ry. Co. v. Boyd, 228 U.S. 482, 507. Nor is it material that the Corporation became insolvent later, long before entry of the order of sale, and that, but for the appointment of receivers, some non-assenting debenture holders would have obtained a preference. The lack of equity in the bill when filed is not cured by the insolvency later occurring. Compare Pusey & Jones Co. v. Hanssen, 261 U.S. 491. Moreover the insolvency which supervened was precipitated by the Reorganization Committee, then the only plaintiffs in this suit. It was at their request that the Bankers Trust Company, as trustee, declared the principal of the debentures due; recovered judgment thereon for $10,673,000; and inter- 11 “An execution sale under a consent judgment, where the consent is, in effect, not the act of the defendant, but that of the plaintiff prosecuting the action, is in reality merely a voluntary transfer. To give it any better standing would be the grossest sacrifice of substance to form.” Title Ins. & Trust Co. v. California Development Co., 171 Cal. 173, 210; 152 Pac. 542, 558. See also, Metcalf v. Moses, 35 App. Div. 596, 55 N.Y.S. 179; 161 N.Y. 587, 56 N.E. 67; Mechanics Bank v. Burnet, 33 N.J .Eq. 486; Atwater v. American Exchange Bank, 152 Ill. 605; 38 N.E. 1017; Skinner v. Case Threshing Machine Co., 94 Ind. App. 651; 182 N.E. 99; HUI v. Pioneer Lumber Co., 113 N.C. 173; 18 S.E. 107. 520 290 U.S. OCTOBER TERM, 1933. Opinion of the Court. vened as party plaintiff. These acts were steps in carrying out the Plan in which the Corporation, the Committee and the Trust Company cooperated. The sale and reorganization being in law fraudulent as to the petitioners in No. 64, it remains to consider the relief to which they are entitled. If, as in Shapiro v. Wilgus, 287 U.S. 348, 357, the reorganization had been effected by a voluntary transfer and thereafter receivers had been appointed by the federal court, these creditors would, upon recovery of judgment, have been a entitled to an order in the alternative either for the payment of the judgment out of the assets in the hands of the receivers or in default thereof for leave to issue execution.” The relief and the procedure should be the same here, although these petitioners are not judgment creditors, and the transfer followed the appointment of receivers. They should be paid in full upon establishing their claims in this case, because they were prevented by the interlocutory order appointing receivers from proceeding against the assets, fraudulently transferred, and thereby securing a lien, which would have yielded them full payment. Compare Metcalf v. Barker, 187 U.S. 165, 174; Freedman’s Savings db T. Co. v. Earle, 110 U.S. 710; Chittenden v. Brewster, 2 Wall. 191.12 Nothing in the indenture with the Bankers Trust Company, or in its action as trustee thereunder, interferes with affording them this relief. That instrument expressly reserves to the individual debenture holders the right to collect interest and principal in an action at law. If that right was impaired by the acts of the Trust Company, in declaring the principal of the debentures due and securing judgment thereon, equity will grant relief; because those acts, done at the request of the Reorganization Com- 12 See also Metcalf v. Moses, 35 App. Div. 596, 55 N.Y.S. 179; 161 N.Y, 587, 56 N.E. 67; Johnston v. Straus, 26 Fed. 57. FIRST NAT. BANK v. FLERSHEM. 521 Opinion of the Court. 504 mittee, were incidents of the Plan which we hold was fraudulent in law as to these petitioners.13 The debenture holders who, by assenting to the Plan, cooperated with the Corporation and the Reorganization Committee, are in no position to complain that these petitioners will fare better than they. Compare Davis v. Virginia Ry. Power Co., 229 Fed 633, 642.14 Since the assets fraudulently conveyed far exceed the amount of the claims of all non-assenting creditors, none of these could have occasion to object to the payment to these petitioners in full. Second. Lily Clapier, the petitioner in No. 65, is the holder of $11,000 of the debentures. She refused to assent to the Plan of Reorganization, but did not seek to intervene in the receivership suit. Instead, she brought in the 18 The record does not show that all the debentures would not have been paid in due course under proper management, in the absence of the voluntary default made to effect the desired reorganization—and other proceedings to that end. 14 There, in a case of reorganization, the Court said: " The holders of the bonds secured by the senior mortgages and the other debenture bondholders of the Richmond Company had the opportunity to join the petitioner in his effort to recover property which he alleged had been taken from that on which they all relied for security. They refused to enter the contest, and accepted as full payment and satisfaction of their bonds the settlement offered in the reorganization. Thus the petitioner was left as the only bondholder who chose to avail himself of the reservation and make the contest, and it follows that he alone is entitled to receive the fruit of his effort. ... All other creditors waived their rights, and were in the position of saying, either that there was no merit in petitioner’s contention, or that they were unwilling to make any effort to bring under the security the property alleged to have been diverted. Evidently, under such conditions, the property which may be recovered or brought back as a part of the assets of the Richmond Company by petitioner’s efforts and expense would be applicable to his bonds. The principle is well settled by authority. Freedman’s S. & T. Co. v. Earle, 110 U.S. 710.” See, also, In re American Candy Mjg. Co., 256 Fed. 87, 88; George v. St, Louis Cable & Western Ry, Co,, 44 Fed. 117, 120-124. 522 OCTOBER TERM, 1933. Opinion of the Court. 290U.S. same court, a separate suit against the Corporation and the receivers in the nature of a bill of review. Suing on behalf of herself and all other creditors who had refused to accept the Plan, she charged that the court was without jurisdiction in equity to appoint receivers; and prayed that the decree appointing them be vacated and no further proceedings be had. The receivers and the Corporation moved to dismiss the Clapier suit on the ground that the bill failed to set forth a cause of action. These motions were granted, without passing upon the question whether in view of the fact that two of the defendants were citizens of the same State as the plaintiff, there was lack of federal jurisdiction. From the decree of dismissal she appealed to the Circuit Court of Appeals. I “A bill of review is called for only after a final decree— one that finally adjudicates upon the entire merits, leaving nothing further to be done except the execution of it.” John Simmons Co. v. Grier Bros. Co., 258 U.S. 82, 88. For this reason, a bill of review will not lie to review an interlocutory order appointing a receiver. The dismissal of the Clapier suit was, therefore, proper. But that decree should have been without prejudice to her right to prosecute her claim against the Corporation, the assets in the hands of the receivers and the new company. To this end she should be given leave to intervene in the receivership suit and there present her claim for such relief as may appear to be appropriate. As the new corporation became party to the suit when it applied for confirmation of the sale, there is here no obstacle to this procedure. Compare National Surety Co. v. Coriell, 289 U.S. 426, 438; Kneeland v. American Loan Co., 136 U.S. 89. Third. The First National Bank, one of the two petitioners in Nos. 62 and 63, is the holder of $68,000 of the debentures. It filed, before the hearing on ordering the sale, a petition for leave to intervene; and was permitted FIRST NAT. BANK v. FLERSHEM. 523 Opinion of the Court. 504 io do so as party defendant, but only “ in subordination to and recognition of the propriety of the main proceeding.” In the hearings on ordering the sale, on approving the Plan, and on confirming the sale, it took part by cross-examination of witnesses and by argument; but it did not introduce any evidence. It appealed from both the interlocutory and the final decree. The Bank does not claim that the District Court was without equity jurisdiction or that the bill lacked equity. It concedes that the court could properly lend its aid to effectuate the proposed reorganization and, to this end, might sell the assets as an entirety. Its contention is that the property held in receivership was a trust fund to be administered for the benefit of each and every creditor, and since some of the debenture holders had refused to assent to the Plan of Reorganization, the court was under the duty to make the sale on such terms and under such conditions as would ensure to them, as their distributive share of the assets, the largest amount in cash which could be realized therefrom; and that the court, basing its action upon estimates offered in support of the Plan, fixed a grossly inadequate upset price and erred in confirming the sale. The respondents insist that the non-assenting debenture holders were entitled only to their distributive share of the sum for which the property could have been sold if scrapped; and that they would, under the price paid, receive that much. It is clear from the evidence introduced by the Reorganization Committee and the receivers that the upset price and the sale price were far below even the scrap value. The upset price fixed was $2,500,000. The entire property was sold to the Reorganization Committee for $2,550,000. At that time the cash and assets equivalent to cash alone aggregated $2,102,804.95. There was cash $1,551,615.78; and notes and accounts receivable (after deducting ample reserve for doubtful accounts) $641,- 524 290U.S. OCTOBER TERM, 1933. Opinion of the Court. 189.17. Besides, there were $1,671,605.91 in raw material, goods in process and manufactured; bonds, stocks and like items valued at $88,873.41; manufacturing plants, and the warehouses in the several cities theretofore valued at $6,388,318.83; goodwill, trade marks and patents theretofore valued at $6,634,501.90; and other assets valued at $166,475.65. Moreover, the existence of the Plan of Reorganization, assented to by a vast majority of the security holders, gave assurance of at least one bidder for the entire property who had confidence that the business, if sold as an entirety as a going concern, possessed a value greater than its liquidating value; and would, if necessary to effectuate the Plan, bid for the assets in cash more than the estimated liquidating value. The upset price and the sale price were grossly inadequate.15 “It seems to have been the aim of the Reorganization Committee to have the upset price fixed at a sum which would yield to nonassenting debenture holders not more than the then market value of their bonds. At one time it had made at one of its meetings a tentative suggestion of $3,600,000. The gross inadequacy of the upset price is illustrated by the division of the $2,500,000, as applied to the ten separate parcels in which, as a formality, the property was offered before selling it as an entirety to the Reorganization Committee. Parcel A for which the upset price of $2,392,000 was set included, besides the plants and other real estate in Pennsylvania, all the personal property except that used in connection with the plants and other real estate located in the other eight States. Parcel B embraced the plant and appurtenant real and personal property in New Jersey (including 11^ acres near Trenton and 14 dwelling houses), carried on the books at $861,179.12. The upset price on this parcel was fixed at $28,000. Parcel C embraced the plant and appurtenant real and personal property in Massachusetts (including 23 acres at Framingham), carried on the books at $592,452.64. The upset price for this parcel was fixed at $17,500. Parcel D embraced the plant and appurtenant real and personal property at North Tonawanda (including 10 acres) and Dunkirk, New York, valued on the books at $1,318,373.60. The upset price for this parcel was fixed at $37,500. Parcel E included 10 acres of land, the plants and appurtenant real and personal FIRST NAT. BANK v. FLERSHEM. 525 Opinion of the Court. 504 In justifying the action taken, the Court of Appeals called attention to the fact that the non-assenting creditors had not introduced any evidence to prove their contention that the sale should not be confirmed. In view of the undisputed facts stated above, the introduction of such evidence was not indispensable. The failure to secure an adequate price seems to have been due, not to lack of opposing evidence, but to the mistaken belief that it was the duty of the court to aid in effectuating the Plan of Reorganization, since a very large majority of the debenture holders had assented to it. Moreover, the court stood in a position different from that which it occupies in ordinary litigation, where issues are to be determined solely upon such evidence as the contending parties choose to introduce. In receivership proceedings, as was held in National Surety Co. n. Coriell, 289 U.S. 426, 436, every important determination by the court calls for an informed, independent judgment; and special reasons exist for requiring adequate, trustworthy information where the jurisdiction rests wholly upon the consent of the defendant who joins in the prayers for relief. It would be property and a warehouse at Chicago, Illinois, carried on the books at $605,149.43; and also the Edgewood Apartment Hotel, at Chicago, carried on the books at $51,172.31. The upset price fixed for this parcel was $17,500. Parcel F included the warehouse at Baltimore, Maryland, and the usual equipment, which was carried on the books at $33,477.93. The upset price on this parcel was fixed at $1,000. Parcel G included the warehouse ^equipment at Cincinnati, Ohio, which was carried on the books at $48,632.84. The upset price on this parcel was fixed at $2,250. Parcel H included the warehouse at Richmond, Virginia, which was carried on the books at $26,045.42. The upset price on this parcel was fixed at $1,000. Parcel I included two warehouses at Hempstead, New York, which was carried on the books at $30,093.81. The upset price on this parcel was fixed at $1,000. Parcel J included the warehouse at Washington, D.C., which was carried on the books at $58,536.53. The upset price on this parcel was fixed at $1,000. 526 290U.S. OCTOBER TERM, 1933. Opinion of the Court. unreasonable to impose upon a few dissenting creditors the heavy financial burden of making an adequate appraisal supported by the testimony of competent experts, where, as here, the assets include extensive plants and equipment located in nine states. The relief which the Bank seeks is that sum in cash which it would have received if the property had been sold at a proper price. To this relief it is clearly entitled. The cause is remanded to the District Court for the purpose of ascertaining the sum. In making the determination it must be borne in mind that the problem which was presented to the trial court upon the application for the receivers’ sale of the assets of this manufacturing company, with its many far flung plants and warehouses, was a very different one from that with which courts have been confronted upon applications for sale on foreclosure of railroad systems. In such cases, it is ordinarily necessary that the property be sold as an entirety. The unity of the system must be preserved in both the public and the private interest, and the large amount of cash required by the upset price renders the Reorganization Committee, which ordinarily controls a large majority of the outstanding securities, practically the only bidder.16 Compare Kansas City Terminal Ry. Co. v. Central Union Trust ” By the decree the purchaser was required to pay only $300,000 in cash, presumably to cover the expenses and fees of the Reorganization Committee, the receivers and counsel. The decree provided that on the balance of the purchase price: “The Purchaser shall be credited on account of his purchase price for Debentures and coupons and assigned claims finally established and allowed, turned over in part payment of the purchase price, with such sum as would be paid in respect of such Debentures, coupons and assigned claims out of the proceeds of sale, if the whole amount of the purchase price had been paid in cash.” By this provision, customary in decrees for sales of railroad systems on foreclosure, the Reorganization Committee was relieved of the necessity of raising a large sum in cash—a necessity which naturally would deter bidders not so situated. FIRST NAT. BANK v. FLERSHEM. 527 504 Opinion of the Court. Co., 271 U.S. 445, 453^4. In the case at bar, preservation of the unity of the property was not essential. The sale of the assets in many parcels was possible; and perhaps desirable in the interest of all concerned. A detailed appraisal must now be made of the Corporation’s assets as of the date of the sale, based upon then values and the possibility of disposing of them in parcels, as well as an entirety. The appraisal of the current assets will present little difficulty. And the experience gained since the sale in collecting the receivables and in disposing of the inventory will be of aid. The appraisal of the property other than the current assets will require careful preparation and consideration. The inadequacy of the upset price seems to have resulted mainly from the assumption that the only alternatives were to continue to operate the properties as an entirety or to scrap all; and from a determination that the properties should not be scrapped. So far as appears, no consideration was then given to the possibility of selling the properties in such parcels as would permit of reconstituting as separate units some of the original independent concerns; or to the fact that a detailed valuation of the many items of which the assets, tangible and intangible, were composed was essential to intelligent bidding for the property in such parcels or as scrap; or to the fact that if the sale was not made as an entirety the appropriate markets for some of the parcels or lots might not be New Castle, Pennsylvania, where the sale was held. Moreover, no attempt appears to have been made then to secure bids from buyers of scrapped properties. The history of the enterprise lends no support to the view that unless all the property was to be scrapped, all had to be sold as an entirety. The losses of the Corporation appear to have been due largely to the fundamental mistake of judgment committed in merging the several independent concerns. Before the consolidation each of 528 290 U.S. OCTOBER TERM, 1933. Opinion of the Court. the six independent concerns earned large profits. Their aggregate profits for each of the last three years before the merger had averaged $3,455,642 a year. A few months after the merger the Corporation entered upon a period of heavy losses which continued unbroken up to the time of the receivers’ sale. The abrupt change from profit to loss was not the result of the general business depression. Although 1928 and 1929 were years of general business prosperity,17 the loss of the Corporation (before payment of debenture interest) was $587,123 in 1928; and $490,371 in 1929.18 The heavy losses during 1928, 1929 and later years (including the period of the receivership) appear to have been due in large measure to the cost of carrying unused properties. During the receivership, only the Pennsylvania plants were in operation.19 For them there was still substantial business; and that business might then have been profitable if not burdened with the cost of carrying the many unused properties.20 In valuing the assets the appraisers should also bear in mind that, even if part of the properties should have been sold as scrap, the Reorganization Committee was a willing purchaser for the rest. Fourth. The International Heater Company, the other petitioner in Nos. 62 and 63, holds three promissory notes of the Corporation of $20,000 each, maturing respectively 17 The losses were, doubtless, due in part to the fact that already, at the end of 1927, the very lucrative “ direct to the consumer ” business theretofore carried on by two of the theretofore independent concerns had to be discontinued, because incompatible with the selling methods of the other plants of the consolidated company. 18 The greater part of the products of these plants was used in the new buildings. In the year 1928, the new construction in America, was said to have reached its all-time record. "See note 1, supra. “During the first four months of the receivership the gross sales were $1,300,000. For the first fifty days of the receivership an operating gain of $31,917.77 was turned into a loss of $14,630.44 by reason of maintenance expense of the non-operating plants of $46,548.21. FIRST NAT. BANK v. FLERSHEM. Opinion of the Court. 529 504 on the last days of 1931, 1932 and 1933. It refused assent to the Plan; but it does not question either that the District Court had equity jurisdiction of the cause, or that there was equity in the bill. It expressly concedes that the court could properly lend its aid to enable security holders of an unsuccessful corporation to find, through reorganization, a practical method of continuing the business. Its main objection is that under the decree entered, it is denied payment in cash of the amount to which it is entitled. The Heater Company did not learn of the application for the order of sale until after the hearing thereon had closed. Then it filed a petition to intervene; was permitted to intervene as defendant, but only “ in subordination to, and recognition of, the propriety of the proceeding ”; and it appealed to the Circuit Court of Appeals from both the decree ordering the sale and from that confirming it and approving the Plan. It seeks reversal of the decree on two entirely distinct and alternative grounds. 1. The Heater Company asks that, pursuant to the Plan, these notes be paid in full by the new corporation. The Plan provides that debts for merchandise or services shall be paid by the new corporation in full. These notes were part of the purchase price paid, in the latter part of 1927, for a minority interest in the stock of the Lincoln Radiator Company, the majority interest of which the Corporation had previously acquired. The Heater Company contends that the notes, being a part of the current indebtedness of the old company, and having been given for personal property, are to be deemed merchandise debts within the meaning of the Plan; but that, if the Plan as drawn does not include them, it should be amended by the court, so as to provide for the payment of the notes in full. The Court of Appeals rejected this contention. We think it was right, substantially for the reasons stated by it. 15459°—34---34 530 OCTOBER TERM, 1933. Syllabus. 290 US. 2. The Heater Company contends that, if the notes are not to be paid in full, it should receive a sum much larger than its distributive share of the purchase price paid by the new corporation. Unlike the Bank, it does not argue that the court was obliged to make an independent investigation into the value of the assets before fixing the upset price. Its contentions are that the Heater Company should not be prejudiced by its own failure to introduce evidence on that issue since it had no notice or knowledge of the hearing; that, moreover, the gross inadequacy of the price paid was due to the fact that, instead of aiming to secure for non-assenting creditors the largest possible sum in cash, the court treated the receivers’ sale as merely a necessary step in effectuating the Plan of Reorganization; and hence adopted a method of selling which excluded all bidders except the Reorganization Committee. We have no occasion to discuss this argument in detail. For the reasons stated in connection with the Bank’s claim, we think that the sale was made at a grossly inadequate price; and that it was invalid also as to the Heater Company. Like the Bank, the Heater Company is entitled to receive in cash its distributive share of the amount which, upon the new appraisal, shall be found to have been the fair selling value of the assets. In Nos. 62,63 and 64, decree reversed as to petitioners. In No. 65, decree modified, and as modified a ffirmed. FIX, COLLECTOR OF INTERNAL REVENUE, v. PHILADELPHIA BARGE CO. et al. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 153. Argued December 13, 1933.—Decided January 8, 1934. Though an action brought by a collector of internal revenue on a bond running to him or his successors will abate upon his resigna- FIX v. PHILA. BARGE CO. 531 530 Opinion of the Court. tion unless a successor is substituted as provided by the Act of February 13, 1925, the cause of action survives and may be enforced by a successor through another action. P. 533. 63 F. (2d) 258, reversed. Certiorari* to review the affirmance of a judgment sustaining a plea to an action by a collector of internal revenue on a bond given as security for taxes. 60 F. (2d) 333. Solicitor General Biggs, with whom Messrs. Sewall Key, J. P. Jackson, and W. Marvin Smith were on the brief, for petitioner. Mr. Thomas P. Mikell, with whom Mr. Walter Biddle Saul was on the brief, for respondents. Mr. Justice Sutherland delivered the opinion of the Court. This is an action originally brought by MacLaughlin, a collector of internal revenue, in a federal district court, against respondents, to recover on a bond conditioned for the payment of such income taxes assessed against the Barge Company as should remain unabated after consideration of a claim for abatement by the Commissioner of Internal Revenue. The obligee named in the bond is Ephraim Lederer, collector of internal revenue when the bond was executed, “ or his successors.” MacLaughlin having died, the case was first revived in the name of Ladner, and upon his resignation, in the name of petitioner. All three, in turn, succeeded to the office held by Lederer. In the district court the surety company filed an affidavit of defense, incorporating a plea that the cause of action upon the bond had abated, and had been lost, by failure to comply with § 11 of the Act of February 13, 1925, c. 229, 43 Stat. 936, 941; U.S.C., Title 28, § 780. * See Table of Cases Reported in this volume. 532 290 UK OCTOBER TERM, 1933. Opinion of the Court. In support of that contention, the plea alleges that suit in assumpsit on the same bond had been brought by one McCaughn, the first successor of Lederer; that, pending the suit, McCaughn resigned as collector; that judgment nevertheless was thereafter entered in his favor; and that subsequently, upon a suggestion of abatement of the cause of action, an order was entered striking the judgment from the record by reason of the fact that the action upon which the judgment was rendered had abated prior to the entry thereof. The district court held that since one suit, brought by a successor of the original obligee, had abated by reason of the failure of the government to make substitution under the act of 1925, there resulted an abatement of the cause of action as well as of the writ. 60 F. (2d) 333. Upon the basis of this ruling and upon a praecipe filed by the United States attorney, final judgment was entered against the collector, which judgment was affirmed by the circuit court of appeals. 63 F. (2d) 258. Respondents raise some question as to the right of the petitioner to appeal to the court below, but the point is so obviously without merit that we do not stop to state or discuss it. Section 11 of the Act of 1925, so far as pertinent, provides that where, during the pendency of an action brought by or against an officer of the United States, relating to the present or future discharge of his official duties, such officer dies, resigns, or otherwise ceases to hold office, it shall be competent for the court where the action is pending, “ to permit the cause to be.continued and maintained by or against the successor in office of such officer, if within six months after his death or separation from the office it be satisfactorily shown to the court that there is a substantial need for so continuing and maintaining the cause and obtaining an adjudication of the questions involved.” The original act on the subject, of which the act of 1925 FIX v. PHILA. BARGE CO. 533 530 Opinion of the Court. is an amplification, was passed February 8, 1899, c. 121, 30 Stat. 822, evidently in response to a suggestion of this court in U.S. ex rel. Bernardin v. Butterworth, 169 U.S. 600, decided in 1898. See Murphy n. Utter, 186 U.S. 95, 101; Caledonian Coal Co. v. Baker, 196 U.S. 432, 440-442; Irwin v. Wright, 258 U.S. 219, 222. In the Butterworth case it was held that a suit to compel the Commissioner of Patents to issue a patent was abated by the death of the commissioner; and that it could not be revived in the name of his successor, even with the latter’s consent. The court suggested that in view of the inconvenience occasioned by this state of the law, it would seem desirable that Congress should provide for the difficulty by enacting that in such cases it should be lawful for the successor in office to be brought into the case. The purpose of the act, as explained in the House committee report (H.Rep. No. 960, 55 Cong., 2d Sess.), and by the member of the House who reported the bill from the committee (Cong. Rec., Vol. 31, Pt. 4, pp. 3865-3866), was to permit the suit to survive and avoid the necessity of compelling a party to commence a new action against the successor in office. The act is purely remedial, designed to remove what this court in the Butterworth case called an “ inconvenience.” Failure to comply with the statute forecloses the particular remedy therein provided; it does not destroy the right. There is a clear difference between the action and the cause of action. Revival of the action is' necessary because that does not survive the death or resignation of the officer by or against whom it has been brought; but the cause of action may survive, depending upon its nature and the applicable rule. See Sanders' Adm’x v. Louisville & N. R. Co., Ill Fed. 708, 710; Martin n. Wabash R. Co., 142 Fed. 650, 651. Compare Green v. Watkins, 6 Wheat. 260; Henshaw v. Miller, 17 How. 212, 219; Warren v. Furstenheim, 35 Fed. 691, 695. The 534 OCTOBER TERM, 1933. Syllabus. 290 U.S. vice of the ruling below, and of the argument here in support of it, is the failure to give effect to this distinction. The present bond runs to each successor, as it ran to the original obligee and with like effect; and, notwithstanding the termination of the latter’s possession of the office, the cause of action which arose in his favor survives for appropriate enforcement by his several successors. Tyler v. Hand, 7 How. 573; Bowers v. American Surety Co., 30 F. (2d) 244. This accords with the policy of the revival statute, as observed by Judge L. Hand in the case last cited. A conclusion to the contrary would subvert the purpose of the bond, which “ is to create an obligation in favor of the incumbents, as they succeed each other.” Judgment reversed. BURROUGHS and CANNON v. UNITED STATES. CERTIORARI TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. No. 434. Argued December 5, 1933.—Decided January 8, 1934. 1. The Federal Corrupt Practices Act of February 28, 1925, provides that any political committee which accepts contributions or makes expenditures for the purpose of influencing the election of presidential or vice-presidential electors in two or more States, or (with certain exceptions), as subsidiary of a national committee, shall have a chairman and treasurer; that the treasurer, among other duties, shall keep detailed and exact accounts of all contributions made to or for the committee; that every person who receives a contribution for the committee shall render to the treasurer a detailed account thereof, with specified particulars; and that the treasurer shall file with the Clerk of the House of Representatives, at designated times, a statement containing the name and address of each contributor, and other particulars, complete as of the day next preceding the date of filing. Violations of the Act are made substantive crimes. Held within the power of Congress. P. 544. 2. The Act seeks to protect the purity of presidential and vice-presidential elections; it is confined to situations which are beyond the power'of a Stale to deal with adequately, if at all; and neither in BURROUGHS and CANNON v. U.S. Statement of the Case. 535 534 purpose nor in effect does it interfere with the power of a State, under § 1, Art. II of the Constitution, to appoint the electors or with the manner in which their appointment shall be made. P. 544. 3. Presidential electors are not officers or agents of the Federal Government (In re Green, 134 U.S. 377); but they exercise federal functions under, and discharge duties in virtue of authority conferred by, the Federal Constitution. P. 545. 4. The power of Congress to protect the election of President and Vice-President from corruption being clear, the choice of means is primarily for the judgment of Congress. If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone. P. 547. 5. Counts of an indictment alleged with detail that B was the treasurer of a political committee, within the intendment of the Corrupt Practices Act, and that certain contributions, fully described, were made for the committee; recited that it was B’s duty under the Act to file statements of these contributions; and charged that B and C, chairman of the committee, “ then well knowing all the premises aforesaid,” conspired to commit the offenses charged in other counts, the allegations of which were incorporated in the conspiracy counts by reference. The counts incorporated sought to charge B with the substantive offenses, under the Act, of failing and wilfully failing to file statements of the contributions with the Clerk of the House of Representatives. Held that the conspiracy counts were sufficient, although the substantive counts were bad because they did not allege that B knew of the contributions. P. 542. 6. Intent unlawfully and wilfully to evade performance of a statutory duty is clearly enough alleged by the statement that the accused conspired to evade it. P. 544. 7. Pertinent facts set forth in a defective count of an indictment may be considered in determining the adequacy of another count in which it is incorporated by reference. P. 544. 62 App.D.C. 163; 65 F. (2d) 796, affirmed in part. Review by certiorari * of a judgment sustaining an indictment charging Burroughs with substantive viola- * See Table of Cases Reported in this volume. 536 290 U.S. OCTOBER TERM, 1933. Argument for Petitioners. tions of the Corrupt Practices Act; Cannon as aiding, abetting and procuring commission of the offenses; and both with conspiracy to commit them. The Supreme Court of the District had quashed the whole indictment for insufficiency. This Court rejects the substantive counts but sustains the conspiracy counts. Mr. Robert H. McNeill for petitioners. The Constitution confers upon the State the exclusive power of appointing presidential electors and over all acts relating thereto, except the time of choosing them. Having fixed the time, Congress has exhausted all of its power respecting their appointment, save the power to prevent the discriminations forbidden by the Fourteenth, Fifteenth, and Nineteenth Amendments. The method of appointing presidential electors and the principle of the people acting by States were retained in the Eleventh Amendment. The provisions contained in the Fourteenth, Fifteenth, and Nineteenth Amendments, designed to protect citizens of the United States from discrimination by the State, or state agencies, on account of race, color or previous condition of servitude, or on account of sex, and to insure the equal protection of the law, do not apply to the acts of individuals or groups of individuals, such as a committee referred to in the indictment in this case. James n. Bowman, 190 U.S. 127; Civil Rights Cases, 109 U.S. 3. In each of these Amendments (XIV, XV, XIX) the legislative authority of Congress is restricted to protection against discrimination by state action and of the particular type covered by the Amendment; and in each instance the Amendment in express terms provides for the enactment of appropriate legislation by Congress to effectuate that purpose. That neither the Fourteenth nor the Fifteenth Amendment in any way altered the exclusive power of the state legislatures to appoint presidential electors, except to insure against the type of dis- BURROUGHS and CANNON v. U.S. Argument for Petitioners. 537 534 crimination with which each Amendment deals, is settled by the decision of this Court in McPherson v. Blacker, where the exact question was raised. 146 U.S. 38. The Nineteenth Amendment is in the precise terms of the Fifteenth with the substitution of the word “ sex ” for the words, “ Race, color or previous condition of servitude.” It has been repeatedly held that the Fifteenth Amendment does not confer upon colored men the right of suffrage, — it only forbids discrimination. United States v. Reese, 92 U.S. 214. This Court has held that the term “ appoint ” in Art. n, § 1, covers any method fixed by the state legislature, including a popular election at which the people vote for presidential electors. McPherson n. Blacker, 146 U.S. 38. See also the opinion of the state court in this same case, 92 Mich. 377, and Re Opinion of the Justices, 118 Me. 552; Vertrees v. State Board of Elections, 141 Tenn. 645; State ex rel. Barker v. Bowen, 8 S.C. 382. The instant case does not involve any question of the power of Congress to legislate after the elector has been appointed, or of the right of Congress to judge of the regularity of votes cast for an elector when counting the electoral vote as required by the Constitution, upon which subject there is a conflict of authority. But in so far as these questions may be regarded as having been decided, the weight of authority supports the conclusion that Congress may not go behind the certificate of an elector issued by state authorities. This Court has conclusively settled the status of a presidential elector as a state officer, as respects both his appointment and attempts to influence his appointment. McPherson v. Blacker, 146 U.S. 38; Fitzgerald v. Green, 134 U.S. 377. The decisions of the state courts establish that the appointment of presidential electors is exclusively the func- 538 OCTOBER TERM, 1933. Argument for Petitioners. 290 U.S. tion of the state legislature and that, as to his creation, he is a state officer. Re Opinion of the Justices, 118 Me. 552; Re State Question No. 137, 244 Pac. 806; Note, 43 L.R.A. (N.S.) 282; Todd v. Johnson, 99 Ky. 548; Don-dan v. Bird, 118 Ky. 178; Hodge v. Bryan, 149 Ky. 110; Marshall v. Dillon, 149 Ky. 115. See also: In re Absentee Voters Law (1921), 80 N.H. 595; Electoral College Case, 8 Fed. Cas. 4336; State ex rel. Barker v. Bowen, 8 S.C. 382; Vertrees v. State Board of Elections, 141 Tenn. 645; Fineran v. Bailey, 2 F. (2d) 363. State, not federal, courts exercise jurisdiction to settle disputes regarding manner of appointing presidential electors and acts relating thereto. It is elementary that Congress has no power to police the acts of citizens except with respect to a function committed by the Constitution to the Federal Government. United States v. De Witt, 9 Wall. 41; Civil Rights Cases, 109 U.S. 3; United States v. Cruikshank, 92 U.S. 542; United States v. Reese, 92 U.S. 214; Dougherty, The Electoral System of the United States, p. 20. There is no inherent or implied power in Congress to regulate the appointment of presidential electors. Kansas v. Colorado, 206 U.S. 46. The indictment is insufficient to comply with the Sixth Amendment. The gravamen of the offense is the alleged failure of the treasurer of a political committee to report an indirect contribution made for the committee. None of the counts alleges facts and circumstances giving rise under the Act to any duty of the treasurer to make a report. The mere allegation that a contribution was made for the committee does not show to whom the contribution was paid or that it was ever accepted, or accounted for to the committee. Facts to show a duty to account are essential to the offense under the statute, where the Government BURROUGHS and CANNON v. U.S. Argument for Petitioners. 539 534 elects to prosecute for an indirect contribution. Their omission makes the indictment fatally defective. Merely following the statute is not always sufficient. United States v. Carli, 105 U.S. 611; Moens v. United States, 50 App.D.C. 15; United States n. Cruikshank, 92 U.S. 542; United States v. Johnson, 26 App.D.C. 136; Miller v. United States, 136 Fed. 581; People v. Wys, 25 Porto Rico 483; Duncan v. State, 1 Humph. 148. The use of the word “ wilfully ” where it appears in the felony counts was intended to indicate merely that the increased penalty provided under § 252 was to be invoked. Cf. United States v. Britten, 107 U.S. 655. See also: Felton v. United States, 96 U.S. 699; Spurr v. United States, 174 U.S. 728. The mere allegation of a wilful failure to report does not supply the omitted facts. Potter n. United States, 155 U.S. 438. It is essential that scienter be directly, and not inferentially, alleged. United States v. Carli, 105 U.S. 611; Moens v. United States, 50 App.D.C. 15; Pettibone N. United States, 148 U.S. 197, 206, 208. If a statute upon which the indictment is founded only describes the general nature of the offense prohibited, the indictment, in repeating its language without averments disclosing the particulars of the alleged offense, states no matters upon which issue can be formed for submission to a jury. United States v. Hess, 124 U.S. 483, 486; Keck v. United States, 172 U.S. 434, 437; Moens v. United States, 50 App.D.C. 15; Foster v. United States, 253 Fed. 481; Collins v. United States, 253 Fed. 609; United States v. Marx, 122 Fed. 964; United States v. B. & O. R. Co., 153 Fed. 997; United States v. Bopp, 230 Fed. 723; United States v. Robinson, 266 Fed. 240. If the offense can not be accurately and clearly described without expanding the allegations beyond the mere words of the statute, then the allegations must be 540 OCTOBER TERM, 1933. Opinion of the Court. 290 U.S. expanded to that extent. United States v. Mann, 95 U.S. 580, 585; Moens v. United States, 50 App.D.C. 15. With respect to the conspiracy counts, the Government contends that scienter is clearly alleged by the words “ each of said defendants then well knowing all the premises aforesaid unlawfully and feloniously did conspire . . . and agree together ” to commit the offenses charged in the substantive counts. The only “ premises aforesaid ” which the appellees are charged with knowing is that E. C. Jameson made contributions “ for the committee ” on dates specified. It is nowhere alleged to whom the contributions were made, or paid, nor are any other facts set forth giving rise to the duty of the treasurer to demand an accounting and file report. Solicitor General Biggs, with whom Messrs. Robert P. Reeder, W. Marvin Smith, and John J. Wilson were on the brief, for the United States. Mr. Justice Sutherland delivered the opinion of the Court. An indictment returned by a grand jury sitting in the District of Columbia charges petitioners, in ten counts, with violations of the Federal Corrupt Practices Act of February 28, 1925, c. 368, Title III, 43 Stat. 1053, 1070; U.S.C., Title 2, § 241, et seq. The pertinent provisions of the act are contained in §§ 241, 242 and 243, reproduced in the margin,* and in §§ 244 and 252. Section 241 de- *“ Section 241. Definitions.—When used in this chapter— “(c) The term ‘political committee’ includes any committee, association, or organization which accepts contributions or makes expenditures for the purpose of influencing or attempting to influence the election of candidates or presidential and vice presidential electors (1) in two or more States, or (2) whether or not in more than one State if such committee, association, or organization (other than a BURROUGHS and CANNON v. U.S. 541 534 Opinion of the Court. fines the term, “ political committee,” as including any organization which accepts contributions for the purpose of influencing or attempting to influence the election of presidential and vice presidential electors in two or more states. Every political committee is required to have a chairman and a treasurer before any contribution may be accepted. One of the duties of the treasurer is to keep a detailed and exact account of all contributions made to duly organized State or local committee of a political party) is a branch or subsidiary of a national committee, association, or organization; “ 242. Chairman and treasurer of political committee; duties as to contributions; accounts and receipts.—(a) Every political committee shall have a chairman and a treasurer. No contribution shall be accepted, and no expenditure made, by or on behalf of a political committee for the purpose of influencing an election until such chairman and treasurer have been chosen. “(b) It shall be the duty of the treasurer of a political committee to keep a detailed and exact account of— “(1) All contributions made to or for such committee; “(2) The name and address of every person making any such contribution, and the date thereof; “(3) All expenditures made by or on behalf of such committee; and “(4) The name and address of every person to whom any such expenditure is made, and the date thereof. “(c) It shall be the duty of the treasurer to obtain and keep a receipted bill, stating the particulars, for every expenditure by or on behalf of a political committee exceeding $10 in amount. The treasurer shall preserve all receipted bills and accounts required to be kept by this section for a period of at least two years from the date of the filing of the statement containing such items. “ 243. Accounts of contributions received.—Every person who receives a contribution for a political committee shall, on demand of the treasurer, and in any event within five days after the receipt of such contribution, render to the treasurer a detailed account thereof, including the name and address of the person making such contribution, and the date on which received.” 542 290 U.S. OCTOBER TERM, 1933. Opinion of the Court. or for the committee. Every person who receives a contribution for a political committee is required to render to the treasurer a detailed account thereof, with specified particulars. By § 244, the treasurer is required to file with the clerk of the House of Representatives, at designated times, a statement containing the name and address of each contributor, date and amount of each contribution and other particulars, complete as of the day next preceding the date of filing. By § 252 (a), penalties of fine and imprisonment are imposed upon any person who violates any of the provisions of the chapter; and by subdivision (b), increased penalties are imposed upon any person who willfully violates any of those provisions. The first eight counts of the indictment purport to charge petitioners with substantive violations of the act, and the ninth and tenth counts, with conspiracy to violate it—four of the eight counts charging willful violations ; the other four merely charging violations, that is to say “ unlawful ” violations. In the supreme court of the District, a demurrer was interposed to the indictment on the grounds (1) that each count of the indictment failed to allege facts sufficient to constitute an offense against the United States, and (2) that the Federal Corrupt Practices Act contravenes § 1, Art. II, of the Federal Constitution, providing for the appointment by each state of electors. The District supreme court sustained the demurrer upon the first ground, rendering unnecessary any ruling as to the second. Upon appeal to the District court of appeals the judgment was reversed. That court ruled each of the ten counts sufficient, and upheld the constitutionality of the act. 62 App.D.C. 163; 65 F. (2d) 796. The case is here on certiorari. First. We do not stop to describe the eight substantive counts. In the opinion of a majority of the court, there is a failure in each count to charge an offense under the BURROUGHS and CANNON v. U.S. 543 534 Opinion of the Court. statute. The conspiracy counts we hold are sufficient. The ninth count charges with particularity that the petitioner Burroughs was the treasurer of a designated political committee from July 22, 1928, to and including March 16, 1929, which committee during that period accepted contributions and made expenditures for the purpose of influencing and attempting to influence the election of presidential and vice presidential electors in two states. The several amounts of certain contributions made for the committee are set forth, together with the dates when made and the name of the contributor. The count recites the duty of Burroughs under the statute to make the statements therein prescribed in respect of these contributions, and charges that both petitioners, one as treasurer and the other as chairman of the committee, “ then well knowing all the premises aforesaid,” unlawfully and feloniously did conspire together and with other persons to commit “ the four willfully committed offenses” charged against Burroughs as treasurer in the first, third, fifth and seventh counts of the indictment, namely, willful failure to file the statements of such contributions required by § 244, the allegations of those counts being incorporated by reference as fully as if repeated. The count further alleges certain overt acts committed in pursuance of the conspiracy. The tenth count charges in substantially identical language a conspiracy to commit the four offenses not designated as willful, charged in the second, fourth, sixth and eighth counts of the indictment, namely, unlawful failure to file the required statements, the allegations of those counts being likewise incorporated by reference as fully as if repeated. We are of opinion that these allegations are sufficient in each count to charge a conspiracy to violate the pertinent provisions of the act. Knowledge of the facts constituting the contemplated substantive offenses is suffi- 544 290 UB. OCTOBER TERM, 1933. Opinion of the Court. ciently alleged by the phrase, “ well knowing all the premises aforesaid.” Brooks v. United States, 267 U.S. 432, 439-440. And intent unlawfully, or unlawfully and willfully, to evade performance of the statutory duty is clearly enough alleged by the statement that the accused conspired to do so. Frohwerk n. United States, 249 U.S. 204, 209. Moreover, quite apart from the question of their legal sufficiency to charge substantive offenses, the eight counts which are incorporated by description set forth the pertinent facts, and may be considered in determining the adequacy of the conspiracy counts. Crain v. United States, 162 U.S. 625, 633; Blitz n. United States, 153 U.S. 308, 317. These facts are narrated by the court below and need not be repeated here. Second. The only point of the constitutional objection necessary to be considered is that the power of appointment of presidential electors and the manner of their appointment are expressly committed by § 1, Art. II, of the Constitution to the states, and that the congressional authority is thereby limited to determining “ the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.” So narrow a view of the powers of Congress in respect of the matter is without warrant. The congressional act under review seeks to preserve the purity of presidential and vice presidential elections. Neither in purpose nor in effect does it interfere with the power of a state to appoint electors or the manner in which their appointment shall be made. It deals with political committees organized for the purpose of influencing elections in two or more states, and with branches or subsidiaries of national committees, and excludes from its operation state or local committees. Its operation, therefore, is confined to situations which, if not beyond the power of the state to deal with at all, are beyond its BURROUGHS and CANNON v, U.S. Opinion of the Court. 545 534 power to deal with adequately. It in no sense invades any exclusive state power. While presidential electors are not officers or agents of the federal government (In re Green, 134 U.S. 377, 379), they exercise federal functions under, and discharge duties in virtue of authority conferred by, the Constitution of the United States. The President is vested with the executive power of the nation. The importance of his election and the vital character of its relationship to and effect upon the welfare and safety of the whole people cannot be too strongly stated. To say that Congress is without power to pass appropriate legislation to safeguard such an election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self protection. Congress, undoubtedly, possesses that power, as it possesses every other power essential to preserve the departments and institutions of the general government from impairment or destruction, whether threatened by force or by corruption. In Ex parte Yarbrough, 110 U.S. 651, this court sustained the validity of § 5508 of the Revised Statutes, which denounced as an offense a conspiracy to interfere in certain specified ways with any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States; and of § 5520, which denounced as an offense any conspiracy to prevent by force, etc., any citizen lawfully entitled to vote from giving his support, etc., toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a member of Congress. The indictments there under consideration charged Yarbrough and others with conspiracies in violation of these sections. The court held, against the contention of the accused, that both sections were constitutional. It is true that while § 5520 includes interferences with persons in 15459°—34---------35 546 290 U.S. OCTOBER TERM, 1933. Opinion of the Court. giving their support to the election of presidential and vice presidential electors, the indictments related only to the election of a member of Congress. The court in its opinion, however, made no distinction between the two, and the principles announced, as well as the language employed, are broad enough to include the former as well as the latter. The court said (pp. 657-658): “ That a government whose essential character is republican, whose executive head and legislative body are both elective, whose most numerous and powerful branch of the legislature is elected by the people directly, has no power by appropriate laws to secure this election from the influence of violence, of corruption, and of fraud, is a proposition so startling as to arrest attention and demand the gravest consideration. “ If this government is anything more than a mere aggregation of delegated agents of other States and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends from violence and corruption. “ If it has not this power it is left helpless before the two great natural and historical enemies of all republics, open violence and insidious corruption.” And, answering the objection that the right to vote for a member of Congress is not dependent upon the Constitution or laws of the United States but is governed by state law, the court further said (p. 663): “ If this were conceded, the importance to the general government of having the actual election—the voting for those members—free from force and fraud is not diminished by the circumstance that the qualification of the voter is determined by the law of the State where he votes. It equally affects the government, it is as indispensable to the proper discharge of the great function of legislating BURROUGHS and CANNON v. U.S. 547 Opinion of the Court. 534 for that government, that those who are to control this legislation shall not owe their election to bribery or violence, whether the class of persons who shall vote is determined by the law of the State, or by law of the United States, or by their united result.” And finally (pp. 666-667): “ In a republican government, like ours, where political power is reposed in representatives of the entire body of the people, chosen at short intervals by popular elections, the temptations to control these elections by violence and by corruption is a constant source of danger. “ If the recurrence of such acts as these prisoners stand convicted of are too common in one quarter of the country, and give omen of danger from lawless violence, the free use of money in elections, arising from the vast growth of recent wealth in other quarters, presents equal cause for anxiety. “ If the government of the United States has within its constitutional domain no authority to provide against these evils, if the very sources of power may be poisoned by corruption or controlled by violence and outrage, without legal restraint, then, indeed, is the country in danger, and its best powers, its highest purposes, the hopes which it inspires, and the love which enshrines it, are at the mercy of the combinations of those who respect no right but brute force, on the one hand, and unprincipled corruptionists on the other.” These excerpts are enough to control the present case. To pursue the subject further would be merely to repeat their substance in other and less impressive words. The power of Congress to protect the election of President and Vice President from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress. If it can be seen 548 290 UK OCTOBER TERM, 1933. McReynolds, J., dissenting. that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone. Stephenson v. Binford, 287 U.S. 251, 272. Congress reached the conclusion that public disclosure of political contributions, together with the names of contributors and other details, would tend to prevent the corrupt use of money to affect elections. The verity of this conclusion reasonably cannot be denied. When to this is added the requirement contained in § 244 that the treasurer’s statement shall include full particulars in respect of expenditures, it seems plain that the statute as a whole is calculated to discourage the making and use of contributions for purposes of corruption. The judgment of the court below will be affirmed in respect of the ninth and tenth counts of the indictment only, and the cause remanded to the supreme court of the District for further proceedings in conformity with this opinion. Affirmed in Part. Separate opinion of Mr. Justice McReynolds. To me it seems sufficiently clear that the trial judge rightly sustained the demurrer to the entire indictment. Since counts one to eight fail to charge any offense under the statute, but are nevertheless incorporated by reference in the conspiracy counts (nine and ten), we must carefully consider the exact language by which the latter undertake to describe the conspiracy. Count Nine, with italics supplied, alleges: And the grand jurors aforesaid, upon their oath aforesaid, do further present, that said Ada L. Burroughs and BURROUGHS and CANNON v. U.S. McReynolds, J., dissenting. 549 534 James Cannon, jr. hereinafter called defendants, said James Cannon, jr. throughout said period of time being the chairman of said political committee, continuously throughout said period of time, and while said Ada L. Burroughs was such treasurer of said political committee and said James Cannon, jr., was chairman thereof as aforesaid, each of said defendants then well knowing all the premises aforesaid, unlawfully and feloniously did conspire, combine, confederate, and agree together, and with divers other persons to said grand jurors unknown, to commit divers, to wit, jour, offenses against the United States, that is to say, the four willfully-committed offenses on the part of said Ada L. Burroughs, as treasurer of said political committee, charged against her in the first, third, fifth and seventh counts of this indictment, the allegations of which said counts descriptive of said offenses respectively, and of the circumstances and conditions under which they were so committed, are incorporated in this count, by reference to said first, third, fifth, and seventh counts, as fully as if they were here repeated. Count Ten, with italics supplied, alleges: And the grand jurors aforesaid, upon their oath aforesaid, do further present, that said Ada L. Burroughs and James Cannon, jr., hereinafter called defendants, said James Cannon, jr., throughout said period of time being the chairman of said political committee, continuously throughout said period of time, and while said Ada L. Burroughs was such treasurer of said political committee and said James Cannon, jr., was chairman thereof as aforesaid, each of said defendants then well knowing all the premises aforesaid, unlawfully and feloniously did conspire, combine, confederate and agree together, and with divers other persons to said grand jurors unknown, 550 290 U.S. OCTOBER TERM, 1933. McReynolds, J., dissenting. to commit divers, to wit, jour, other offenses against the United States, that is to say, the jour offenses on the part of said Ada L. Burroughs, as treasurer of said political committee, charged against her in the second, jourth, sixth, and eighth counts of this indictment, the allegations of which said counts descriptive of said offenses respectively, and of the circumstances and conditions under which they were so committed, are incorporated in this count, by reference to said second, fourth, sixth, and eighth counts, as fully as if they were here repeated. Interpreted with proper regard to the defendants’ rights, count nine, also count ten, undertakes to describe a conspiracy to commit crimes said to be charged against Burroughs in other counts. But this Court now affirms that those counts fail adequately to specify any offense whatsoever. Thus, we have allegations of what are called conspiracies to commit crimes which are nowhere adequately described. And I cannot think that such pleading should find toleration in any criminal action. An indictment ought to set out with fair certainty the charge to which the accused must respond. If crime has been committed, a fairly capable prosecuting officer can definitely describe it. Here, we have an example of what seems to me inordinate difficulty unnecessarily thrust upon the accused. An experienced trial judge was unable to find proper description of crime in any of the ten counts of the indictment. The Court of Appeals, with a judge of long service dissenting, ruled that every count was sufficient. This Court, being divided, now declares eight of the counts bad, but holds that two are sufficient. Surely, such contrariety of opinion concerning allegations of the indictment indicates plainly enough that no man should be required to go to trial under it. LUMBRA v. UNITED STATES. 551 Syllabus. LUMBRA v. UNITED STATES. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 152. Argued November 17, 1933.—Decided January 8, 1934. 1. In determining whether there was any evidence to sustain a verdict for the plaintiff, all facts that the evidence supporting his claim reasonably tends to prove should be assumed as established, and all inferences fairly deducible from them should be drawn in his favor. P. 553. 2. To a claim under a war risk contract insuring unqualifiedly against “ total permanent disability,” the occasion, source or cause of the petitioner’s illness is immaterial. P. 558. 3. Injuries, exposure and illness suffered by the claimant before the lapse of his policy, and his condition in subsequent years, have significance, if any, only to the extent that they tend to show whether he was in fact totally and permanently disabled during the life of the policy. P. 558. 4. The phrase “ total permanent disability ” in the War Risk Insurance Act, should be construed reasonably and with regard to the circumstances of each case. P. 558. 5. It can not be said that injury or disease sufficient merely to prevent one from again doing some work of the kind he had been accustomed to perform constitutes the disability meant by the Act, for such impairment may not lessen or affect his ability to follow other useful, and perchance more lucrative, occupations. P. 559. 6. Separate and distinct periods of temporary total disability, though likely to recur at intervals throughout life, do not constitute total permanent disability. Permanent disability means that which is continuing as opposed to that which is temporary. P. 559. 7. The mere fact that one has done some work after the lapse of his policy does not in itself suffice to defeat his claim of total permanent disability; but the work performed may be such as conclusively to negative total permanent disability at the earlier time. Pp. 560, 561. 8. Evidence of the claimant’s condition after lapse of his policy may be considered only for the purpose of determining his condition while the contract was in force. P, 560. 552 OCTOBER TERM, 1933. Opinion of the Court. 290 U.S. 9. The claimant’s conduct after the alleged accrual of his claim in this case, shows that he did not believe he was totally and permanently disabled when he let his policy lapse; and his unexplained delay in bringing suit is strong evidence that he was not thus disabled at that time. P. 560. 63 F. (2d) 796, affirmed. Certiorari * to review a judgment reversing a recovery by verdict in an action on a war risk insurance policy. Mr. Warren E. Miller for petitioner. Mr. Will G. Beardslee, with whom Solicitor General Biggs, Assistant Solicitor General MacLean, and Messrs. Randolph C. Shaw and W. Clifton Stone were on the brief, for the United States. Mr. Justice Butler delivered the opinion of the Court. Petitioner was a private in the army of the United States from July 14, 1917, to April 29, 1919. In September, 1917, he obtained war risk insurance against death or total permanent disability. May 31, 1919, the policy lapsed for nonpayment of premiums. November 30, 1931, he brought this suit in the federal district court for Vermont alleging that before May 31, 1919, the policy was matured by his total permanent disability. Issue having been joined, there was trial by jury. At the close of all the evidence respondent requested the court to direct a verdict in its favor. The court denied the motion and, the jury having found for petitioner, entered judgment in his favor. The Circuit Court of Appeals reversed. 63 F. (2d) 796. Petitioner’s claim is that while the policy was in force he became subject to recurring spells of headache, dizziness, epileptic seizures and other illness constituting total permanent disability. The Circuit Court of Appeals held * See Table of Cases Reported in this volume. LUMBRA v. UNITED STATES. 553 551 Opinion of the Court. the evidence not sufficient to show total permanent disability of petitioner while the insurance was in force. The question presented is whether there was any evidence upon which a verdict for petitioner might properly be found. And, for its decision, we assume as established all the facts that the evidence supporting petitioner’s claims reasonably tends to prove and that there should be drawn in his favor all the inferences fairly deducible from such facts. Gunning v. Cooley, 281 U.S. 90, 94. Before joining the army, petitioner was a laborer and worked cutting logs, building roads and as a farm and factory hand. When enrolled he was a healthy and strong man of 25 years. He served overseas in a machine gun company. One of his ankles was injured June 16, 1918, and two days later he was taken for treatment to a base hospital where he remained about a month. It was there recorded that, while going into a dugout, he had slipped and severely sprained his ankle; that there was no fracture, and that his general condition, heart, lungs and nervous system, were satisfactory. When discharged from the hospital, he joined his company, and remained with it until mustered out at Camp Devens, Massachusetts, April 29, 1919. The official record shows that upon a careful examination at that time by an army surgeon he was found mentally and physically sound; that he declared he had no reason to believe he was impaired in health or was suffering from the effects of any wound, injury or disease; and that his company commander had no reason to believe he then had any wound, injury or disease. In 1920 petitioner several times consulted Dr. Frank B. Hunt, who certified, December 7, 1920, he found petitioner suffering from rheumatism, chronic bronchitis and nervousness. At the trial Dr. Hunt testified that petitioner was not, when examined, totally incapacitated and did not complain of having had epileptic seizures of any 554 290 U.S. OCTOBER TERM, 1933. Opinion of the Court. kind. It seems that the certificate was intended for use in support of an application to the United States for compensation.1 And, apparently in connection with such an application, petitioner was examined by Dr. Byron Herman of the Public Health Service. Under date of December 10, 1920, Dr. Herman reported that while in the army petitioner was never sick, although in the hospital once for a sprained ankle; that he became ill after getting home, and that he then complained of rheumatism, throat trouble, and husky voice. The doctor’s diagnosis was chronic rheumatism and chronic laryngitis; his prognosis was: “ Good.” He reported that petitioner was able to resume his former occupation; that the degree of vocational handicap was negligible, and that vocational training was feasible. January 17, 1921, petitioner verified an application for compensation stating that he was suffering from bronchial troubles, rheumatism and nervousness, which commenced about a year earlier and were caused by gas and exposure in France. And, in March, 1922, claiming to be partially disabled by reason of ailments of the lungs and throat, petitioner made application for compensation and training. In April, 1924, and in January, 1925 and 1926, petitioner was examined by Dr. Waldo J. Upton, a specialist in nervous and mental diseases. He represented that he had no injury or illness during his military service and was in good physical condition when discharged, but that a few months later he became nervous, weak and unable to endure noise. The doctor diagnosed the case as one of mild neurasthenia characterized by weakness, irritability and "Compensation for death or disability resulting from personal injuries suffered or disease contracted in the line of duty was provided by Art. Ill, Act of October 6, 1917, 40 Stat. 405, as amended. The grant of insurance was authorized by Art. IV, Act of October 6, 1917, supra, p. 409, as amended. See Runkle v. United States, 42 F. (2d) 804, 806. LUMBRA v. UNITED STATES. Opinion of the Court. 555 551 quick fatigue under stress. He found petitioner able to work at any occupation involving light labor, with reasonable regularity and without danger. He also examined petitioner in 1928, 1929 and 1930. At the first examination petitioner reported that in 1926 and 1927 he had suffered attacks of unconsciousness. The doctor found petitioner suffering from severe neurasthenia and severe hysteria. In 1930 he found petitioner had pronounced psychoneurosis and that his condition suggested he was developing grand mal epilepsy. The doctor’s testimony indicates that from 1924 petitioner’s condition became progressively worse. In 1926, Dr. Herman found petitioner was having grand mal epileptiform seizures. He prescribed medicine and sent petitioner to a government hospital where he remained a month. In August, 1927, Dr. James O’Neill examined him. Petitioner said he had not been sick in the army and had sustained no injury except to his ankle and a slight gassing, but that he had been nervous practically from the time he left the army. Within the previous year he had suffered infrequent fits and had not then worked for nine weeks. His ailment was diagnosed as severe hysteria and the doctor was of opinion he could have worked. In March, 1929, Dr. Alan Davidson made a diagnosis of epilepsy. Petitioner then said he had been having uncontrollable nervous attacks which began when he was in the hospital in France. Petitioner had no medical treatment between 1920 and 1926. From that time to 1930 he was sent to the hospital seven times and received treatment for periods ranging from two to eight weeks. The government granted petitioner’s applications for compensation. Commencing in 1924 he was rated 10 per cent, disabled and paid $9 or $10 a month. Later, increases for disability were found and more compensation was allowed until in August, 1930, his disability was rated at 100 per cent, and he was given 556 OCTOBER TERM, 1933. Opinion of the Court. 290 U.S. $94.50 per month in addition to $10.50 allowed for his child. From July, 1919, until the beginning of March, 1929, it appears that petitioner was employed more or less regularly except for periods aggregating about two years for which he does not account. Until January, 1921, he worked in a veneer factory. He was discharged, he testified, because he lost too much time by reason of weakness and dizzy spells. Then he helped on his sister’s farm for three or four months. The next definite information as to his employment is that in July, 1922, he commenced as a machinist’s helper in the shops of the Central Vermont Railway Company. He worked about two-thirds of full time until May 15, 1923, when he was laid off on account of force reduction. It does not appear what he did from then until February 18, 1924. At that time he was again employed by the Central Vermont, and worked nearly full time as a laborer until May when he quit in order to work in the Boston & Maine Railroad shops. In the following November he was discharged because, as he said, illness caused him to lose too much time. In December, 1924, he was employed for the third time by the Central Vermont. He worked about 85 per cent, of the time until August 23, 1926. Then he went to the hospital for a month, but he did not return until November; he worked nearly full time for the remainder of the year. In 1927, he worked about half time: that is, until the end of June he worked about 85 per cent, of full time, he then went to the hospital for an undisclosed period, and in October and November he worked about 70 per cent, of full time. Then he was out until the end of January, 1928. Thereafter, until he was discharged in March, 1929, he worked about 80 per cent, of full time. On each of the three occasions he went to work for the Central Vermont,’ he made application for employment in which he represented himself to be free from bodily LUMBRA v. UNITED STATES. Opinion of the Court. 557 551 complaints and of a strong constitution. The record contains testimony that throughout the period of this employment petitioner seemed tired and ill, that he was transferred a number of times to lighter work, and that, had he not been a veteran, he would have been discharged. The substance of petitioner’s testimony, in so far as it adds materially to the facts and evidence above referred to, may be stated briefly: June 16, 1918, a shell explosion threw him, injured his ankle, shocked him severely, and caused him to lose consciousness for a time and to suffer spells of dizziness, headaches, weakness and great perspiration at least once a week during the month he remained in the hospital. Desiring to leave the hospital, he refrained from disclosing his illness to attending physicians or others. After he resumed active service, the spells became worse. He disclosed his condition to the company commander and because of it was assigned to work in the kitchen. He did not get better while in France. After discharge, April 29, 1919, he went to his mother’s home in Vermont and rested for some months. The spells continued, grew worse and sometimes would last a day. After commencing work in July, 1919, he was unsteady and weak, lost much time and on account of his condition was given lighter work and finally discharged in January, 1921. Early in 1923, he suffered a seizure in which he lost consciousness for about 15 minutes. So far as appears, this was the first seizure in which petitioner fell or became unconscious. Later he suffered such attacks with increasing frequency and intensity. At the trial, medical men gave opinion evidence which, when considered in connection with the facts and circumstances rightly to be taken as proved, is sufficient to sustain a finding that petitioner’s illness before and after the lapse of the policy resulted from injuries and exposure 558 OCTOBER TERM, 1933. Opinion of the Court. 290 U.S. while in the military service and that the epileptiform and epileptic fits, such as that suffered March 1,1923, and later, are not curable. The war risk contract unqualifiedly insures against “total permanent disability.” The occasion, source or cause of petitioner’s illness is therefore immaterial.2 His injuries, exposure and illness before the lapse of the policy and his condition in subsequent years have significance, if any, only to the extent that they tend to show whether he was in fact totally and permanently disabled during the life of the policy.3 March 9,1918, in pursuance of the authorization contained in the War Risk Insurance Act,4 the director of the bureau ruled (T.D. 20 W.R.): “Any impairment of mind or body which renders it impossible for the disabled person to follow continuously any substantially gainful occupation shall be deemed ... to be total disability. Total disability shall be deemed to be permanent whenever it is founded upon conditions which render it reasonably certain that it will continue throughout the life of the person suffering from it.” The phrase “ total permanent disability ” is to be construed reasonably and having regard to the circumstances of each case. As the insurance authorized does not extend to total temporary or partial permanent disability, the 2 United States v. Golden, 34 F. (2d) 367, 370. United States v. Tyrakowski, 50 F. (2d) 766, 768. 3 Carter v. United States, 49 F. (2d) 221, 224. Eggen v. United States, 58 F. (2d) 616, 619. Wise v. United States, 63 F. (2d) 307, 308. United States v. Clapp, 63 F. (2d) 793, 795. United States v. Linkhart, 64 F. (2d) 747, 748. 4". . . The director, subject to the general direction of the Secretary of the Treasury, shall administer, execute, and enforce the provisions of this Act, and for that purpose have full power and authority to make rules and regulations, not inconsistent with the provisions of this Act, necessary or appropriate to carry out its purposes . . .” § 13, added by § 2, Act of October 6, 1917, 40 Stat. 399, LUMBRA v. UNITED STATES. 559 551 Opinion of the Court. tests appropriate for the determination of either need not be ascertained. The various meanings inhering in the phrase make impossible the ascertainment of any fixed rules or formulae uniformly to govern its construction. That which sometimes results in total disability may cause slight inconvenience under other conditions. Some are able to sustain themselves, without serious loss of productive power, against injury or disease sufficient totally to disable others. It cannot be said that injury or disease sufficient merely to prevent one from again doing some work of the kind he had been accustomed to perform constitutes the disability meant by the Act, for such impairment may not lessen or affect his ability to follow other useful, and perchance more lucrative, occupations. Frequently, serious physical impairment stimulates to successful effort for the acquisition of productive ability that theretofore remained undeveloped. The above quoted administrative decision is not, and manifestly was not intended to be, an exact definition of total permanent disability or the sole guide by which that expression is to be construed. If read literally, every impairment from time to time compelling interruption of gainful occupation for any period, however brief, would be total disability. And, if such impairment were shown reasonably certain not to become less, it would constitute total permanent disability. Persons in sound health occasionally suffer illness requiring them to remain in bed for a time. It is not inaccurate to describe such illness as “ total disability ” while it lasts. But clearly it is not right to say that, if they remain sound but reasonably certain throughout life occasionally to have like periods of temporary illness, they are suffering from “ total permanent disability.” Such a construction would be unreasonable and contrary to the intention of Congress. “Total disability” does not mean helplessness or com- 560 290 U.S. OCTOBER TERM, 1933. Opinion of the Court. plete disability, but it includes more than that which is partial. “ Permanent disability ” means that which is continuing as opposed to what is temporary. Separate and distinct periods of temporary disability do not constitute that which is permanent. The mere fact that one has done some work after the lapse of his policy is not of itself sufficient to defeat his claim of total permanent disability. He may have worked when really unable and at the risk of endangering his health or life.5 But manifestly work performed may be such as conclusively to negative total permanent disability at the earlier time.6 It requires no discussion to show that the evidence in respect of petitioner’s condition during the life of the policy has no substantial tendency to prove total permanent disability at the time of the lapse. The evidence as to his subsequent condition may be considered only for the purpose of determining his condition while the contract was in force. His conduct following the alleged accrual of his claim reflects his own opinion as to whether he was totally and permanently disabled at the time of the lapse. His own statements to medical men, their diagnoses, his repeated applications to the Government for compensation and his failure earlier to assert any claim show that for a decade he did not believe that he was totally and permanently disabled when he let his policy lapse May 31, 1919. And in the absence of clear and satisfactory evidence explaining, excusing or justifying it, petitioner’s long delay before bringing suit is to be taken 8 United States v. Phillips, 44 F. (2d) 689, 691. United States v. Godfrey, 47 F. (2d) 126. Carter v. United States, 49 F. (2d) 221, 223. United States v. Lawson, 50 F. (2d) 646, 651. Nicolay v. United States, 51 F. (2d) 170, 173. 6 United States v. Harrison, 49 F. (2d) 227. Nicolay v. United States, 51 F. (2d) 170, 173—4. United States v. Perry, 55 F. (2d) 819, 824. United States v. McGill, 56 F. (2d) 522, 524. United States v. Diehl, 62 F. (2d) 343, 344. STATE COMM’N v. WICHITA GAS CO. 561 551 Syllabus. as strong evidence that he was not totally and permanently disabled before the policy lapsed.7 It may be assumed that occasional work for short periods by one generally disabled by impairment of mind or body does not as a matter of law negative total permanent disability. But that is not this case. Petitioner while claiming to be weak and ill and, contrary to the opinion and diagnoses of examining physicians, that he was really unable to work, did in fact do much work. For long periods amounting in the aggregate to more than five years out of the ten following the lapse of the policy he worked for substantial pay. No witness, lay or expert, testified to matters of fact or expressed opinion tending to support petitioner’s claim that he had suffered “ total permanent disability ” before his policy lapsed. Unless by construction these words are given a meaning far different from that they are ordinarily used and understood to convey, the evidence must be held not sufficient to support a verdict for petitioner. The trial court should have directed a verdict for the United States. Gunning v. Cooley, 281 U.S. 90, 93. Stevens v. The White City, 285 U.S. 195, 204. Affirmed. STATE CORPORATION .COMMISSION OF KANSAS et al. v. WICHITA GAS CO. et al. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS No. 114. Argued November 16, 1933.—Decided January 8, 1934. 1. The sale, transportation and delivery of natural gas from one State to distributors in another State, is interstate commerce, and 7 United States v. Hairston, 55 F. (2d) 825, 827. Wise v. United States, 63 F. (2d) 307, 308. United States v. Linkhart, 64 F. (2d) 747, 748. And see United States v. Eggen, 58 F. (2d) 616, 618. 1.5459°—34-36 562 OCTOBER TERM, 1933. Opinion of the Court. 290U.S. the rates to be charged therefor are not subject to state regulation. P. 563. 2. An order of a state commission which requires local distributors of natural gas not to include in their operating expense accounts more than a stated price for the gas delivered to them in interstate commerce by an affiliated pipe line company, and not to consider any payments in excess of that price in fixing a rate for domestic consumers, and which is merely a preliminary step in . an investigation toward ascertaining the reasonableness of the local rates, can have no force as res judicata to bind the distributors in respect of payments to the pipe line company or the rates to be charged their consumers. P. 569. 3. Therefore such an order is not in itself a ground for an injunction, even if unconstitutional, since injunction is not granted unless necessary to protect rights against injuries otherwise irremediable. P. 568. 2 F.Supp, 792, modified and affirmed. Appeal from a decree enjoining the members of the commission from enforcing two orders, only one of which was questioned. It was conceded that the other was invalid. Messrs. E. H. Hatcher and Charles D. Welch, with whom Mr. Roland Boynton, Attorney General of Kansas, and Messrs. Louis R. Gates and Charles W. Steiger were on the brief, for appellants. Mr. Robert D. Garver, with whom Mr. Robert Stone was on the brief, for appellees other than Cities Service Gas Co. Mr. James W. Finley, with whom Mr. R. E. Cullison was on the brief, for Cities Service Gas Co., appellee. Mr. Justice Butler delivered the opinion of the Court. Ten suits were consolidated for trial.1 The appellee in each of the first nine is a local public service corporation, ^The appellees are: The Wichita Gas Co., The Hutchinson Gas Co., The Newton Gas Co., The Pittsburg Gas Co., The Capital Gas & STATE COMM’N v. WICHITA GAS CO. 563 561 Opinion of the Court. for convenience called a distributing company, engaged in the business of furnishing natural gas to consumers, domestic and industrial, in Kansas, and together they operate in 128 cities and towns. The other appellee, Cities Service Gas Company, is a pipe line company, engaged in transporting gas from Texas and Oklahoma fields into Kansas and other States. The stock of each of the distributing companies is owned by the Gas Service Company, and its stock is owned by the Cities Service Company; the common stock of the Cities Service Gas Company is owned by the Empire Gas and Fuel Company, the voting stock of which is owned by the Cities Service Company. Henry L. Doherty, doing business as Henry L. Doherty & Company, owns 35 per cent, of the voting stock of the Cities Service Company. The policies of the distributing companies and the pipe line company are subject to control by the Cities Service Company and Doherty controls its policies. These corporations and he constitute “ affiliated interests ” as defined by a Kansas statute effective March 9, 1931,® the substance of which is later to be stated. The Kansas statutes empower its public service commission to regulate the service and to fix rates to be charged by public utilities, including the distributing companies.3 They prescribe heavy penalties for failure to comply with commission-made orders.4 But the sale, transportation and delivery of natural gas by the pipe line company to the distributing companies constitutes interstate commerce and therefore the State is without power to prescribe rates or prices to be charged therefor. Mis- Electric Co., The Wyandotte County Gas Co., The Girard Gas Co., Union Public Service Co., The Western Distributing Co., Cities Service Gas Co. 2 Kansas Laws, 1931, c. 239; Kan. R.S., §§ 74-602a, b, c. 8 Kan. R.S., §§ 66-107, 66-110, 66-111, 66-113. 4 Kan. R.S., § 66-138. 564 OCTOBER TERM, 1933. Opinion of the Court. 290 U.S. souri v. Kansas Gas Co., 265 U.S. 298, 305, et seq. Peoples Gas Co. v. Pub. Serv. Comm’n, 270 U.S. 550, 554. Pub. Util. Comm’n n. Attleboro Co., 273 U.S. 83, 90. Smith v. Illinois Bell Tel. Co., 282 U.S. 133, 148. The Act of March 9, 1931, § 1, gives the commission jurisdiction over holders of the voting stock of public utility companies to the extent necessary to require disclosure of the identity of the owners of substantial interests therein, and provides that the commission shall have access to the accounts and records of affiliated interests, relating to transactions between them and public utility companies. Section 2 declares that no management or similar contract with any affiliated interest shall be effective unless first filed with the commission, and authorizes the commission to disapprove any such contract found not to be in the public interest. Section 3 provides: “ In ascertaining the reasonableness of a rate or charge to be made by a public utility, no charge for services rendered by a holding or affiliated company, or charge for material or commodity furnished or purchased from a holding or affiliated company, shall be given consideration in determining a reasonable rate or charge unless there be a showing made by the utility affected by the rate or charge as to the actual cost to the holding or affiliated company furnishing such service and material or commodity. Such showing shall consist of an itemized statement furnished by the utility setting out in detail the various items, cost for services rendered and material or commodity furnished by the holding or affiliated company.” July 2, 1931, the commission, exerting powers granted by the Act, ordered an investigation of the charges made by holding companies for services rendered and commodities furnished to the distributing companies. It directed them to give the commission such information as they STATE COMM’N v. WICHITA GAS CO. 565 561 Opinion of the Court. might see fit and as the commission might require; it ordered them to show cause why charges made by any holding company, if found unreasonable, should not be disallowed as operating expenses. The order was not directed to Henry L. Doherty & Company, the pipe line company or any holding company, and none of them appeared or became a party to the proceeding before the commission. And, pursuant to the order, there were held extended hearings at which there was submitted much evidence as to the value of the pipe line company’s properties located in five States, its operating expenses, including depreciation and taxes, and its gross revenues and income available for return. In short, the facts adduced were such as appropriately might be considered by a commission for the ascertainment of reasonable rates to be charged by the pipe line company, or by a court in determining whether established rates are confiscatory. Each distributing company tendered proof of the value of its own property used to furnish gas to its customers together with other facts essential to the determination of the reasonableness of the rates then being, and later to be, charged its customers. But the commission, not then being engaged in the investigation of the reasonableness of such rates, refused to hear evidence other than that bearing upon the reasonableness, as operating expense items, of charges made by affiliated interests for services rendered the distributing companies and especially of prices exacted by the pipe line company for gas delivered in interstate commerce at the gates or borders of the various cities and communities served by the distributing companies. The commission held payment of 1% per cent, of their gross earnings to Henry L. Doherty & Company unwarranted and the prices paid the pipe line company for gas 566 OCTOBER TERM, 1933. Opinion of the Court. 290U.S. unreasonable to the extent that they exceeded 29.5 cents per thousand cubic feet.5 P.U.R. 1933A, pp. 113-202. It granted the companies’ application for rehearing, and August 31, 1932, put aside the order filed with its report and in its place promulgated two orders: The first directed the distributing companies to cease setting up as an expense item payment of the 1% per cent, charge and payment to the pipe line company for gas in excess of 30 cents per thousand cubic feet and to give no consideration to the payments so disapproved in fixing rates to domestic consumers. And it directed that, on October 17, 1932, the distributing companies show cause why the prescribed reduction should not be passed on to the consumers.6 The second order directed that, effective September 1, 1932 and pending hearing and an order prescribing rates, “All distributing companies paying a gate rate in excess 'Throughout the record the city gate rate is referred to as the “ 40-cent rate.” That is the usual charge per thousand cubic feet of gas delivered by the pipe line company to the mains of the distributing companies. But as in some instances the city gate rate was lower, the average was 39.5 cents. 6The text is as follows: “ 1. That on and after the 1st day of September, 1932, the distributing companies, respondents above named, shall cease to set up on their books as an expense item any payments made to Henry L. Doherty & Company under the contract above mentioned, because of the one and three-fourths per cent charge and also any payments made to Cities Service Gas Company for main line town border gas in excess of 30 cents per M.C.F., and should give no consideration to any such payments in fixing a rate for the domestic consumer. “ 2. That on the 17th day of October, 1932, the distributing companies, respondents above named, appear before the Public Service Commission, at 10: 00 o’clock A.M., and show cause to the Commission why the reduction in expenses as above set forth should not be passed on to the consumers with such other reductions as may be found reasonable,” STATE COMM’N v. WICHITA GAS CO. 567 561 Opinion of the Court. of 30 cents per M.C.F. shall deduct the difference between what the distributing company is now paying at the city gate and 30 cents per M.C.F. and pass on this difference to the consumer.” Apprehending that, as counsel for the commission asserted at the hearing, these orders would become final and absolutely binding unless within 30 days, §§ 66-113, 66-118, action were commenced to have them set aside, appellees brought these suits September 19, 1932. Each sued the commission, its members and the attorney general, invoking jurisdiction on the ground that its suit is one arising under the Federal Constitution. The complaint, upon the basis of fact set forth, asserts that the orders are repugnant to the commerce clause and the contract clause of the Constitution and to the due process and equal protection clauses of the Fourteenth Amendment and prays temporary and permanent injunction. The defendants moved to dismiss on the grounds that the bill fails to state a cause of action and that the court was without jurisdiction. A specially constituted court of three judges denied the motion to dismiss. The defendants answered, admitting that because repugnant to a state statutory provision the second order was unauthorized and is void. The court granted temporary injunction and tried the case upon the merits. It was submitted upon the evidence introduced before the commission, stipulations as to matters of fact and other evidence. The court made findings of fact and stated its conclusions of law. Equity Rule 70^. And it permanently enjoined the defendants from enforcing the orders in so far as they required the distributing companies to cease to set up on their books any payment to the pipe line company for gas in excess of 30 cents per thousand cubic feet, to give no consideration to such payments in fixing a rate for the domestic consumer and, commencing September 1, 1932, 568 OCTOBER TERM, 1933. Opinion of the Court. 290 U.S. to charge rates reduced as directed by the second order.7 The first order does not purport to establish or prescribe prices to be paid by the distributing companies to the pipe line company or purport to establish any rate to be charged by appellees to their customers. It merely directs the distributing companies not to include in their operating expense accounts more than 30 cents per thousand cubic feet for gas furnished by the pipe line company and not to consider any payments in excess of that price in fixing a rate for domestic consumers. We need not decide whether these provisions are repugnant to the Constitution or whether they are otherwise invalid. The invalidity of such an order is not of itself ground for injunction. Unless necessary to protect rights against injuries otherwise irremediable, injunction should not be granted. Terrace v. Thompson, 263 U.S. 197, 214. ’Paragraph (3) of the decree: “ That the defendants, the Public Service Commission of the State of Kansas, and the members thereof, and Roland Boynton, Attorney General of the State of Kansas, and each of them, their agents, servants, and employees, and all other persons acting under or through their authority, be and they are hereby permanently enjoined and restrained in the enforcement and execution of the provisions of two certain orders of said Public Service Commission dated August 31, 1932, insofar as the said orders require that the distributing companies, plaintiffs in the above named cases, should cease to set up on their books any payments made to Cities Service Gas Company for main line town border gas in excess of 30 cents per M.C.F., and should give no consideration to any such payments in fixing a rate for the domestic consumer; and, insofar as they and/or either of them require that effective September 1, 1932, ahd until a hearing is held and an order issued, the said distributing companies should charge rates to the consumers as follows: “All distributing companies paying a gate rate in excess of 30 cents per M.C.F. should deduct the difference between what the distributing companies were then paying at the city gate and 30 cents per M.C.F., and should pass this difference on to the consumer.” STATE COMM’N v. WICHITA GAS CO. 569 561 Opinion of the Court. Appellees in substance suggest that, unless now adjudged invalid and enjoined, the findings and directions of the commission in respect of their operating expenses and the fixing of rates will be binding upon them in later proceedings for the prescribing of rates to be charged by them for gas furnished to consumers and in suits involving the validity of such rates. But the commission’s proceedings are to be regarded as having been taken to secure information later to be used for the ascertainment of reasonableness of rates. The order is therefore legislative in character. The commission’s decisions upon the matters covered by it cannot be res adjudicata when challenged in a confiscation case or other suit involving their validity or the validity of any rate depending upon them. Prentis v. Atlantic Coast Line, 211 U.S. 210, 227. Chicago, M. & St. P. Ry. Co. v. Minnesota, 134 U.S. 418, 452, et seq. But the decisions of state courts reviewing commission orders making rates are res adjudicata and can be so pleaded in suits subsequently brought in federal courts to enjoin their enforcement. Detroit & Mackinac Ry. v. Mich. R.R. Comm’n, 235 U.S. 402, 405. Napa Valley Co. v. R.R. Comm’n, 251 U.S. 366, 373. The appellees were not obliged preliminarily to institute any action or proceeding in the Kansas court in order to obtain in a federal court relief from an order of the commission on the ground that it is repugnant to the Federal Constitution. Bacon v. Rutland R. Co., 232 U.S. 134, 138. Missouri v. Chicago, B. & Q. R. Co., 241 U.S. 533, 542. Ex parte Young, 209 U.S. 123, 166. And upon the issue of confiscation vel non they are entitled to the independent judgment of the courts as to both law and facts. Ohio Valley Co. v. Ben Avon Borough, 253 U.S. 287, 289. Bluefield Co. v. Pub. Serv. Comm’n, 262 U.S. 679, 689. United Railways v. West, 280 U.S. 234, 251. It results, therefore, that appellees in their complaints failed to state facts sufficient to entitle them to a decree 570 OCTOBER TERM, 1933. Syllabus. 290 U.S. enjoining the appellants from enforcing the first order for, as insisted by appellants in oral argument in this court, the challenged provisions are merely preliminary steps in aid of investigations for the ascertainment of the reasonableness of appellees’ rates, and they have no binding force in respect of payments to the pipe line company or rates to be charged consumers and cannot be res ad judicata. The decree in so far as it enjoins enforcement of the provisions of that order will be vacated. The commission, its members and attorney general having in their answer and here admitted that the commission’s second order is invalid, the decree in so far as it enjoins the enforcement of its provisions will be affirmed. Decree modified and, as modified, affirmed. P. F. PETERSEN BAKING CO. et al. v. BRYAN, GOVERNOR, et al. APPEAL FROM THE SUPREME COURT OF NEBRASKA. No. 203. Argued December 8, 1933.—Decided January 8, 1934. 1. In order to protect purchasers of bread from imposition by sale of short loaves, a State has power to prescribe not only the minimum weights of loaves that may be sold by bakers, but also the maximum tolerances in excess of those weights. P. 573. 2. A Nebraska statute enacts that every loaf made for sale in Nebraska shall be one-half pound, one pound, one and one-half pounds, or exact multiples of one pound, and that the Secretary of Agriculture of the State shall prescribe reasonable tolerances or variations in excess of those weights and the time for which they shall be maintained. Fines are to be imposed for violations. A regulation by the Secretary fixes the tolerance at not more than three ounces per pound and requires that the bread be so made that under normal conditions it will maintain the minimum weight for not less than twelve hours after cooling; the weights are to be determined by taking the average of not less than five loaves, if available; and bakers are not made responsible for maintenance of minimuin weights after delivery to a retail dealer or consumer PETERSEN BAKING CO. v. BRYAN. 571 570 Opinion of the Court. or to a transportation agency for delivery. The Act excepts “fancy breads,” without defining them. Held: (1) That the tolerance so fixed is not unreasonable. Bums Baking Co. v. Bryan,, 264 U.S. 504, distinguished. P. 573. (2) It does not appear that the delegation of authority to the executive officer, including the implied authority to decide what is covered by the term “ fancy breads,” is arbitrary. P. 574. 3. One who attacks a statute as unconstitutional must show that it is unconstitutional in its application to himself. P. 575. 4. Where a statute regulating the weights of loaves has the double purpose of protecting consumers from short weight and of protecting the bakers from unfair competition, it will not be held unconstitutional as to bakers unless shown to be so in both aspects. P. 575. 5. One who complains that regulations promulgated under legislative authority by a state board are unreasonable and oppressive, should seek relief by applying to that board to modify them, before bringing suit. P. 575. 124 Neb. 464; 247 N.W. 39, affirmed. This suit was brought by several baking companies to enjoin the Governor and the Acting Secretary of Agriculture of the State of Nebraska from enforcing an Act for the regulation of weights of loaves of bread. The court below sustained a decree dismissing the complaint. Messrs. Harold D. LeMar and John C. Grover for appellants. Mr. Paul F. Good, with whom Mr. Daniel Stubbs was on the brief, for appellees. Mr. Justice Butler delivered the opinion of the Court. Appellants are makers of bread for sale in Nebraska. The appellees, the governor and deputy secretary of agriculture, are authorized to enforce an act to establish a standard loaf. Laws 1931, c. 162, p. 430. Appellants sued in the district court of Lancaster county to have the 572 OCTOBER TERM, 1933. Opinion of the Court. 290U.S. measure decreed invalid and its enforcement enjoined upon the ground of repugnancy to the due process and equal protection clauses of the Fourteenth Amendment. The court upheld, the law and dismissed the petition. The supreme court affirmed. 124 Neb. 464; 247 N.W. 39. The challenged enactment declares that every loaf made for sale in Nebraska shall be one-half pound, one pound, one and one-half pounds or exact multiples of one pound and provides that the act shall not apply to fancy breads; directs the secretary of agriculture to prescribe reasonable tolerances or variations in excess of, but not under, the specified weights and the time for which said weights shall be maintained, and imposes fines for violations. Rules and regulations promulgated by the deputy secretary of agriculture require the rate of tolerance not to exceed three ounces to the pound, the bread to be so made that under normal conditions it will maintain the minimum weight for not less than twelve hours after cooling, the weights to be determined by taking the average of not less than five loaves, if available. They do not purport to make bakers responsible for maintenance of minimum weights after delivery to a retail dealer or consumer or to a transportation agency for delivery.* So far as need be specifically referred to, appellants’ contentions are that: (1) A maximum tolerance is arbitrary and discriminatory. (2) The statute vests arbitrary power in the secretary of agriculture. (3) It is impossible * June 24, 1931, the deputy secretary of agriculture prescribed a maximum tolerance of one ounce on half pound loaves, two ounces on pound loaves and ten per cent, on larger loaves, the tolerance to apply for a period of twelve hours after baking and the weights to be determined by taking the average of not less than five loaves, if available. After the commencement of this suit that regulation was superseded by the one here in question. PETERSEN BAKING CO. v. BRYAN. 573 570 Opinion of the Court. to comply with the prescribed tolerances, and the provisions as to time, place, possession and particular loaves subject bakers to fines irrespective of negligence. The fixing of a maximum weight for each size or class of loaves is not unreasonable. In Burns Baking Co. v. Bryan, 264 U.S. 504, we were called on to consider the constitutionality of a similar measure. Nebraska Laws 1921, c. 2, p. 56. We there adverted to the undoubted power of the State to protect purchasers of bread from imposition by the sale of short-weight loaves [Schmid-inger n. Chicago, 226 U.S. 578, 588) and showed that the purpose of prescribing minimum weights is to prevent sellers from palming off loaves of smaller size as those of a larger size. The tolerances prescribed by that statute were at the rate of two ounces to the pound of the minimum weight required to be maintained for 24 hours after baking. Here the rate of tolerance is three ounces to the pound, and minima are required to be maintained only 12 hours after cooling. In that case the evidence demonstrated that, owing to evaporation from bread under conditions of temperature and humidity that often prevail in Nebraska, it was impossible to make good bread in the regular way without exceeding the tolerances then prescribed. And it was held that a relatively much wider spread between the required minimum and the permitted maximum weight applicable to each size or class of loaves would be equally effective to prevent deception and that therefore the maxima complained of were unnecessary and arbitrary. The diminution in weight of dough while being baked or of bread after baking cannot be definitely determined in advance. It may be usefully approximated. If only one size or class of loaves were being made, the fixing of minimum weight might be effective to prevent shortweight sales. But that is not the situation in Nebraska. The classes of loaves being made for sale and distributed 574 OCTOBER TERM, 1933. Opinion of the Court. 290 U.S. there include those being sold as one-half pound, a pound, a pound and a quarter, a pound and a half. The mere prescribing of a minimum weight for each class reasonably may be deemed not effective for there might be made such intermediate sizes as would permit deception and fraud. The danger is illustrated by the twenty ounce loaf being made by appellants. The statute prohibits it, undoubtedly for the reason that its weight is only four ounces more than the pound loaf and four ounces less than the pound and a half loaf. Unquestionably there are adequate grounds for prohibiting a loaf of that size. The fixing of both maximum and minimum weights for each class fairly may be deemed appropriate and necessary. If not too low, there is no support for the claim that the maximum is arbitrary or discriminatory. There is no merit in the claim that the delegation of authority to the secretary violates the due process or equal protection clause. The act fixes the minimum weight of loaves of each size or class. The lessening of weight during and immediately following baking depends on changing conditions and varies considerably. Maxima that readily may be complied with in one period may be found too low at another time. The Nebraska legislature is not constantly in session and convenes regularly only once in two years. But the secretary may act at any time as need arises. Presumably the delegation was made in the interest of justice to the bakers as well as for the convenient enforcement of the statute and regulations. Chicago & N. W. Ry. Co. v. Dey, 35 Fed. 866, 875. Nor does the failure of the act to define “ fancy breads ” and the implied direction that the secretary shall ascertain what is covered by the phrase operate to vest arbitrary power in him. It is not shown that in the trade the phrase does not have an established meaning. On the contrary, the evidence tends to show that it has. The trial court found that it is “ sufficiently definite ” and that it does not cover PETERSEN BAKING CO. v. BRYAN. 575 570 Opinion of the Court. “ common white bread.” It does not appear that any requirement here involved applies to fancy bread made by appellants or other bakeries. Castillo v. McConnico, 168 U.S. 674, 680. Williams v. Mississippi, 170 U.S. 213, 225. Yazoo & M. V. R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 219-220. Plymouth Coal Co. v. Pennsylvania, 232, U.S. 531, 544-546. The delegation of authority appears to be well within the principles established by our decisions. Louisville & N. R. Co. n. Garrett, 231 U.S. 298, 305. Red “ C ” Oil Co. n. North Carolina, 222 U.S. 380, 394. And see St. Louis, I. M. & S. Ry. Co. v. Taylor, 210 U.S. 281, 287. Union Bridge Co. v. United States, 204 U.S. 364. United States v. Grimaud, 220 U.S. 506. Buttfield v. Stranahan, 192 U.S. 470, 496. It is not shown that the prescribed tolerances are unreasonable or that the statute and regulations operate to prescribe punishment in the absence of fault. The lower court found, and the evidence warrants the finding, that appellants and other bakers readily may comply with the prescribed weights and tolerances. It is therefore to be presumed that in the absence of fault or negligence, violations will not occur. The facts plainly distinguish this case from Burns Baking Co. n. Bryan. Moreover, the state supreme court held that a secondary purpose of the act is to prevent unfair competition by dishonest bakers resulting in injury to the consuming public. As there is no showing that the measure is not reasonably calculated effectively to serve for that purpose, the judgment upholding the act must be affirmed. And, in so far as it upholds the rules and regulations, it must be affirmed upon another ground. The lower court, following our decision in Red“ C” Oil Co. v. North Carolina, supra, held that where one complains that regulations promulgated under legislative authority by a state board are unreasonable and oppressive, he should seek relief by applying to that board to modify them. There is no 576 OCTOBER TERM, 1933. Opinion of the Court. 290 U.S. suggestion that, if appellants had sought modification of the tolerances complained of, their application would not have been fairly considered or that they would have been denied relief to which they were entitled. Affirmed. MISSOURI PACIFIC RAILROAD CO. v. HARTLEY BROTHERS. CERTIORARI TO THE SUPREME COURT OF OKLAHOMA. No. 200. Argued December 14, 1933.—Decided January 8, 1934. Under § 20 of the first Cummins Amendment, 49 U.S.C., § 20 (11), an action against a carrier for damage to an interstate shipment, due to negligence in loading or unloading or in transit, need not be preceded by notice or filing of the claim, and any provision of the contract requiring such notice or filing as a condition precedent, would be void. P. 578. 162 Okla. 194; 19 P. (2d) 337, affirmed. Certiorari* to review the affirmance of a judgment against the Railroad Company in an action by a shipper for damage to a consignment of cattle. Mr. Wm. L. Curtis argued the cause, and Messrs. Edward J. White and Thomas B. Pryor filed a brief, for petitioner. Mr. H. D. Moreland argued the cause, and Mr. G. C. Spillers filed a brief, for respondents. Mr. Justice Butler delivered the opinion of the Court. Respondents brought this action in the district court of Rogers county to enforce a claim for damages against the railroad company. May 4, 1927, they shipped seven carloads of cattle from stations in Arkansas to themselves at Delaware, Oklahoma. They delivered five loads * See Table of Cases Reported in this volume. MO. PAC. R. CO. v. HARTLEY BROS. 577 576 Opinion of the Court. directly to defendant and the other loads to connecting carriers that delivered them to defendant. It hauled all from Little Rock to destination. The shipments moved under uniform livestock contracts1 issued by the initial carriers. They contain the following clauses: “ Section 2. (c) Claims for loss, damage, or injury to live stock must be made in writing to the originating or delivering carrier or carriers issuing this bill of lading within six months after the delivery of the live stock . . . provided, that if such loss, damage or injury was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery. . . . “ Section 4. (c) Before the live stock is removed from the possession of the carrier or mingled with other live stock the shipper, owner, consignee or agent thereof shall inform in writing the delivering carrier of any visible or manifest injury to the live stock.” Plaintiffs did not sue until after the expiration of the time specified in the contract for notice or filing of claim; and they did not, before suit, give notice of or make any claim against defendant or any of the carriers for the loss or damage sued for, § 2 (c), or give defendant the information specified in § 4 (c). Their petition alleges that some of the cattle were killed and others injured by defendant’s negligence in handling the cars in which the shipments moved over its line. The answer denied negligence and alleged that plaintiffs had not complied with the quoted contract provisions. The jury returned a verdict for plaintiffs and the trial court gave them judg- 1 Prescribed by Domestic Bill of Lading and Live Stock Contract, 64 I.C.C. 357, October 21, 1921, before our decision, April 13, 1925, in Barrett v. Van Pelt, 268 U.S. 85. See Missouri Pacific R. Co. v. Porter, 273 U.S. 341, 343, et seq. Louis Ilfeld Co. v. Southern Pac. Co., 48 F. (2d) 1056, 1057. 15459°—34--37 578 OCTOBER TERM, 1933. Opinion of the Court. 290 U.S. ment thereon. The supreme court affirmed. 162 Okla. 194; 19 P. (2d) 337. The first Cummins amendment to § 20 of the Act to Regulate Commerce, 49 U.S.C., § 20 (11), concerning the duty of carriers to issue receipts or bills of lading for interstate freight and their liability for loss or damage declares: “ That it shall be unlawful for any such common carrier to provide by rule, contract, regulation, or otherwise a shorter period for giving notice of claims than ninety days, for the filing of claims than four months, and for the institution of suits than two years ”; and, as here construed,2 the proviso reads: “ That if the loss, damage, or injury complained of was due to delay or damage while being loaded or unloaded or damage in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery.” The phrase “ carelessness or negligence ” relates to each case of loss, damage or injury mentioned in the proviso, and in such cases carriers are not permitted to require notice or filing of claim. Barrett v. Van Pelt, 268 U.S. 85, 87, 91. Chesapeake & 0. Ry. Co. v. Thompson Mfg. Co., 270 U.S. 416, 422. Section 2 (c) of the livestock contract includes the language of the proviso and evidently is not intended to require notice of claim for any loss, damage or injury caused by the carrier’s negligence. Section 4 (c) of the contract does not purport to make compliance with it a condition precedent to suit, and we need not decide whether in any case it could be so read. It does not expressly apply to loss or injuries caused by the carrier’s negligence. If construed to cover such cases, the section would conflict with the proviso of the first Cummins Amendment. Affirmed. 2 Barrett v. Van Pelt, 268 U.S. 85. Davis v. Roper Lumber Co., 269 U.S. 158. Chesapeake & 0. Ry.‘ Co. v. Thompson Mfg. Co., 270 U.S. 416. VERMONT v. NEW HAMPSHIRE. Decree. 579 VERMONT v. NEW HAMPSHIRE. No. 2, original. Decree entered January 8, 1934. Decree adjudging the boundary between the States of Vermont and New Hampshire to be the low water mark on the west side of the Connecticut River and directing that the line be definitely located and marked on the ground at points which have been agreed upon in a stipulation of the parties. This work is to be done by a special commissioner, appointed by the decree and instructed thereby as to his duties, including the taking, if necessary, and filing of evidence. Directions are given as to the making, filing and service of his report, and hearing of objections. The compensation and expenses of the commissioner, as approved by the Court, with incidental expenses, are-to be paid equally by the two States, as also are the costs of the suit. Either party may apply in the future for location and marking of additional points, or to have points relocated and marked “ where the boundary has been affected by erosion or accretion.” This Decree is made pursuant to the opinion reported in 289 U.S. 593. Per Curiam. This cause, having been submitted upon the pleadings, proofs and exhibits, and upon the report of the Special Master, and having been argued by counsel, and this Court, on May 29, 1933, having rendered its opinion sustaining the findings of the Special Master as to the location of the true boundary line between the two States, parties hereto, It is Ordered, Adjudged and Decreed: First. That the boundary line between the State of Vermont and the State of New Hampshire is hereby established as a line beginning at the apex of the granite monument which marks the southeast corner of Vermont and the southwest corner of New Hampshire, erected in 1897 under the supervision of Commissioners of the two States, at low water mark on the west side of the Connecticut River, and extending thence northerly along the western side of the 580 OCTOBER TERM, 1933. Decree. 290 UK river at low water mark, as the same is or would be if unaffected by improvements on the river, to the southerly line of the Town of Pittsburg, New Hampshire. Such low water mark is hereby defined as the line drawn at the point to which the river recedes at its lowest stage, without reference to, and unaffected by extreme droughts, but subject to such changes as may hereafter be effected by erosion or accretion. Second. That such boundary line at low water mark shall forthwith be definitely located and marked on the ground, as hereinafter provided, at named points on said boundary line, on the western side of the Connecticut River, which points have been selected and agreed upon by stipulation entered into by the parties hereto, pursuant to order of this Court of October 10, 1933, as follows: 1. The monument marking the southwest comer of New Hampshire and southeast comer of Vermont, commonly called the “ Mud Turtle ” and the Brattleboro-Dummerston, Vermont town line. 2. The Walpole, New Hampshire-Westminster, Vermont Bridge. 3. The Westminster-Rockingham Vermont town line and a point one hundred (100) feet north of the Cheshire bridge (Charlestown, N.H.-Springfield, Vt.). 4. The Claremont-Ascutneyville Bridge (Claremont, N.H.-Weathersfield, Vt.). 5. The Boston & Maine Railroad Bridge (Cornish, N.H.-Windsor, Vt.). 6. The Cornish Toll Bridge (Cornish, N.H.-Windsor, Vt.). 7. A point five hundred (500) feet south of the Sumner’s or Water Quechee Falls Canal (Plainfield, N.H.-Hartland, Vt.) and a point five hundred (500) feet north of said canal. VERMONT v. NEW HAMPSHIRE. Decree. 581 579 8. The Boston & Maine Railroad Bridge (Lebanon, N.H.-Hartford, Vt.). 9. The Lyman Bridge (Lebanon, N.H.-Hartford, Vt.). 10. A point one thousand (1,000) feet south of the Wilder Dam (Lebanon, N.H.-Hartford, Vt.) and a point one thousand (1,000) feet north of the Ledyard Bridge (Hanover, N.H.-Norwich, Vt.). 11. The Gilbert Bridge (Lyme, N.H.-Thetford, Vt.). 12. The Lyme-Northboro Bridge (Lyme, N.H.-Thetford, Vt.). 13. The Orford Bridge (Orford, N.H.-Fairlee, Vt.). 14. The Piermont Bridge (Piermont, N.H.-Bradford, Vt.). 15. The Bedell Bridge (Haverhill, N.H.-Newbury, Vt.). 16. The Keyes Steel Highway Bridge (Haverhill, N.H.-Newbury, Vt.). 17. A point one hundred (100) feet south of Hales or Howard Island (Haverhill, N.H.) and the point of the “ Narrows ” (Bath, N.H.-Ryegate, Vt.). 18. A point one thousand (1,000) feet south of the Ryegate Paper Company’s dam (Bath, N.H.-Ryegate, Vt.), and a point one hundred (100) feet north of the Moses Blake Ferry (Dalton, N.H.-Lunenburg, Vt.). 19. The South Lancaster Bridge (Lancaster, N.H.-Lunenburg, Vt.). 20. The North Lancaster Bridge (Lancaster, N.H.-Guildhall, Vt.). 21. The Maine Central Railroad Bridge (Lancaster, N.H.-Guildhall, Vt.). 22. A point five hundred (500) feet south of the Wyoming Paper Company or Hall & Richter Paper Company dam (Northumberland, N.H.-Guildhall, Vt.) and a point opposite the mouth of the Upper Ammonoosuc River (Northumberland, N.H.). 23. The Stratford Hollow’ Bridge (Stratford, N.H.-Maidstone, Vt.). 582 OCTOBER TERM, 1933. Decree. 290 UK 24. The Maine Central Railroad Bridge (Stratford, N.H.-Brunswick, Vt.), and a point five thousand (5,000) feet north of Lyman Falls Power Company’s dam (Columbia, N.H.-Bloomfield, Vt.). 25. The Columbia Bridge (Columbia, N.H.-Lemington, Vt.) and a point two thousand (2,000) feet north of said bridge. 26. The Colebrook Bridge (Colebrook, N.H.-Leming-ton, Vt.). 27. The Colebrook-Stewartstown, N.H. town line, and the Canaan, Vt., Pittsburg, N.H. town line. 28. The northeast corner of Vermont. 29. All dams, bridges and ferries. Third. Samuel S. Gannett, Esq., is hereby appointed Special Commissioner to locate and mark upon the ground the boundary line, at the points specified herein, and to make record of the point [s] so marked with all convenient speed. The reasonable compensation and expenses of the Commissioner, as allowed by this Court, and all other costs incident to the location and marking of such boundary line and making record thereof as provided herein shall be paid by the two States, in equal shares. Fourth. Before entering upon the discharge of his duties, the Commissioner shall be duly sworn to perform fairly, impartially, and without prejudice or bias the duties imposed upon him, said oath to be taken before the Clerk of this Court, or before the Clerk of the District Court of the United States for the District of the said Commissioner’s residence, or for the District of New Hampshire, or for the District of Vermont, and returned with his report. The Commissioner is authorized to adopt all usual and reasonable methods to ascertain the true location of the said boundary line, including reference to the record, transcript and evidence in this cause, and the taking of new evidence, oral or documentary, under oath; but in the event new evidence is taken the parties VERMONT v. NEW HAMPSHIRE. Decree. 583 579 shall be notified and permitted to be present and cross-examine the witnesses; and all evidence taken by the Commissioner, and all exceptions thereto, and action thereon, shall be preserved and certified and returned with his report. The Commissioner shall mark the points upon the boundary line as designated herein with permanent monuments, erected by him or under his direction, and wherever he shall deem it necessary or desirable to do so such monuments may be established upon the fast upland and shall be suitably inscribed to indicate by distances and courses therefrom the point on the boundary line as it is fixed at the time of the erection of such monument. He shall, upon completion of the location and marking of such points on the boundary line, report to this Court, describing the several monuments established, and their location and their distances and courses to the boundary, and his determinations shall be subject in all respects to the approval of this Court. A copy of his report shall be promptly delivered to the Clerk of this Court and to the Attorneys General of the two States, and exceptions or objections, if any, to such report shall be presented to this Court, or, if it is not in session, filed with the Clerk within forty (40) days after the delivery of such report. On approval by this Court of such report, the Commissioner shall be discharged. Fifth. In the event that either State shall hereafter desire additional points on the boundary line to be located and marked, or any points to be relocated and remarked where the boundary has been affected by erosion or accretion, this Court will, upon application, appoint a Commissioner for the purpose. Sixth. The State of Vermont, its officers, agents and representatives, its citizens, and all other persons, are perpetually enjoined from disputing the sovereignty, jurisdiction and dominion of New Hampshire over the territory adjudged to her by this decree; and the State of New 584 OCTOBER TERM, 1933. 290 U.S. Decree. Hampshire, its officers, agents and representatives, its citizens, and all other persons, are perpetually enjoined from disputing the sovereignty, jurisdiction and dominion of Vermont over the territory adjudged to her by this decree. Seventh. The costs of this suit will be equally divided between the States, and this case is retained on the docket for further orders, in fulfillment of the provisions of this decree. DECISIONS PER CURIAM, FROM OCTOBER 2, 1933, TO AND INCLUDING JANUARY 8, 1934.* No. 138. Jack Lewis, Inc. v. Mayor and City Council of Baltimore et al. Appeal from the Court of Appeals of Maryland. Jurisdictional statement submitted September 9, 1933. Decided October 9, 1933. Per Curiam: The motion to dismiss the appeal herein is granted and the appeal is dismissed for the want of a substantial federal question. Euclid v. Ambler Realty Co., 272 U. S. 365, 388; Cusack Co. v. Chicago, 242 U.S. 526; Hadacheck v. Los Angeles, 239 U.S. 394; Reinman v. Little Rock, 237 U.S. 171, 176, 177. Messrs. W. Frank Every and J. Purdon Wright for appellant. Messrs. R. E. Lee Marshall and Ernest F. Fadum for appellees. Reported below: 164 Md. 146; 164 Atl. 220. No. 184. First Union Trust & Savings Bank, Trustee, v. Consumers Co. et al. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit. October 9, 1933. Per Curiam: The petition for writ of certiorari herein is granted. On consideration of the suggestion of the respondent of a diminution of the record and of the motion for writ of certiorari to correct the same, it is ordered that such writ be, and it is hereby, granted. It having been shown to the Court that this cause is moot (Mills v. Green, 159 U.S. 651, 653-658; Jones v. Montague, 194 U.S. 147; Alejandrino v. Quezon, 271 U.S. 528, 535, 536; Railroad Comm’n v. MacMillan, 287 U.S. 576), the decree of the Circuit Court of Appeals is reversed, and the cause is remanded to the District * For decisions on applications for certiorari, see pp. 606, 625. 585 586 290 UK OCTOBER TERM, 1933. Decisions Per Curiam, Etc. Court with directions to vacate the orders appealed from and to dismiss the proceedings as moot. Brownlow v. Schwartz, 261 U.S. 216; U.S. ex rel. Norwegian Nitrogen Products Co. v. Tariff Comm’n, 274 U.S. 106, 112; Coyne N. Prouty, 289 U.S. 704. Messrs. Rush C. Butler and Frank E. Harkness for petitioner. Messrs. Edwin M. Sims, Franklin J. Stransky, Silas H. Strawn, and John D. Black for respondents. Reported below: 63 F. (2d) 273. No. 189. Hunt v. Texas. Appeal from the Court of Criminal Appeals of Texas. Jurisdictional statement submitted September 9, 1933. Decided October 9, 1933. Per Curiam: The motion of the appellant for leave to file statement as to jurisdiction is granted. The appeal herein is dismissed for want of jurisdiction. Section 237 (a) Judicial Code, as amended by the Act of February 13, 1925 (43 Stat. 936, 937). Treating the papers whereon the appeal was allowed as a petition for writ of certiorari as required by § 237 (c) Judicial Code, as amended (43 Stat. 936, 938), certiorari is denied. Mr. A. S. Baskett for appellant. No appearance for appellee. Reported below: 123 Tex. Crim. Rep. —; 59 S.W. (2d) 836. No. 339. Miller et al. v. Board of County Commissioners of the City and County of Denver et al. Appeal from the Supreme Court of Colorado. Jurisdictional statement submitted September 9, 1933. Decided October 9, 1933. Per Curiam: The appeal herein is dismissed for the want of jurisdiction. Section 237 (a) Judicial Code, as amended by the Act of February 13, 1925 (43 Stat. 936, 937); Jett Bros. Co. v. Carrollton, 252 U.S. 1, 5, 6. Treating the papers whereon the appeal was allowed as a petition for writ of certiorari as required by § 237 (c) 587 290 US. OCTOBER TERM, 1933. Decisions Per Curiam, Etc. Judicial Code, as amended (43 Stat. 936, 938), certiorari is denied. Mr. Frederick E. Dickerson for appellants. No appearance for appellees. Reported below: 92 Colo. 425 ; 21 P. (2d) 714. No. 366. Diven, Executor, et al. v. Sibling. Appeal from the Court of Appeals of Maryland. Jurisdictional statement submitted September 9, 1933. Decided October 9, 1933. Per Curiam: The motion for leave to proceed further herein in forma pauperis is denied. The motion to dismiss is granted, and the appeal is dismissed for the want of jurisdiction. Section 237 (a) Judicial Code, as amended by the Act of February 13, 1925 (43 Stat. 936, 937). Treating the papers whereon the appeal was allowed as a petition for writ of certiorari as required by § 237 (c) Judicial Code, as amended (43 Stat. 936, 938), certiorari is denied. Mr. George W. Sutton for appellants. Mr. Richard E. Preece for appellee. Reported below: 164 Md. 526; 165 Atl. 485. No. 404. Aker v. Aker et al. Appeal from the Supreme Court of Idaho. Jurisdictional statement submitted September 9, 1933. Decided October 9, 1933. Per Curiam: The motion for leave to proceed further herein in forma pauperis is denied. The motion to dismiss is granted, and the appeal is dismissed for the want of jurisdiction. Section 237 (a) Judicial Code, as amended by the Act of February 13, 1925 (43 Stat. 936, 937). Treating the papers whereon the appeal was allowed as a petition for writ of certiorari as required by § 237 (c) Judicial Code, as amended (43 Stat. 936, 938), certiorari is denied. Mr. J. M. Lampert for appellant. No appearance for appellees. Reported below: 52 Ida. 713; 20 P. (2d) 796. 588 OCTOBER TERM, 1933. Decisions Per Curiam, Etc. 290U.S. No. 426. Spur Distributing Co. v. Lindsey. Appeal from the Supreme Court of Tennessee. Jurisdictional statement submitted September 9, 1933. Decided October 9, 1933. Per Curiam: The appeal herein is dismissed for the want of a substantial federal question. Nashville, C. & St. L. Ry Co. n. Wallace, 288 U.S. 249, 265-268; Gregg Dyeing Co. v. Query, 286 U.S. 472, 478, 479, 481, 482; Eastern Air Transport v. South Carolina Tax Comm’n, 285 U.S. 147, 152; Edelman v. Boeing Air Transport, 289 U.S. 249, 251, 252. Mr. Thomas H. Malone for appellant. No appearance for appellee. Reported below: 166 Tenn. 424; 62 S.W. (2d) 53. No. —, original. Ex parte Salisbury. October 9, 1933. Motion for leave to file petition for writ of mandamus denied. Adele T. Salisbury, pro se. No. —, original. Ex parte Heussler et al. October 9, 1933. Motion for leave to file petition for writ of mandamus denied. Messrs. D. Roger Englar, Henry N. Longley, and Ezra G. Benedict Fox for petitioners. No. —, original. Ex parte Colorado. October 9, 1933. ^Motion for leave to file petition for writ of mandamus denied. Mr. Paul P. Prosser for petitioner. No. —, original. Ex parte Fletcher. October 9,1933. Motion for leave to file petition for writ of mandamus denied. Mr. Edmond C. Fletcher, pro se. No. —, original. Ex parte Benjamin. October 9, 1933. Motion for leave to file petition for writ of habeas corpus denied. Mr. Jehudah Benjamin, pro se. OCTOBER TERM, 1933. 589 290U.S. Decisions Per Curiam, Etc. No. —, original. Ex parte Williams. October 9, 1933. Motion for leave to file petition for writ of habeas corpus denied. Mr. Joseph Williams, pro se. No. —, original. Ex parte Rubin. October 9, 1933. Motion for leave to file petition for writ of habeas corpus denied. Mr. Lloyd Rubin, pro se. No. —, original. Ex parte Jordon. October 9, 1933. Motion for leave to file petition for writ of habeas corpus denied. Mr. Harry Jordon, pro se. No. —, original. Ex parte Martin. October 9, 1933. Motion for leave to file petition for writ of habeas corpus denied. Mr. Milford B. Martin, pro se. No. 2, original. Vermont v. New Hampshire. October 10, 1933. The Court, being advised that the parties hereto desire that the decree to be entered herein shall provide for the appointment of a commissioner to mark upon the ground such parts of the boundary line between the State of Vermont and the State of New Hampshire, settled and determined by this Court, as shall be designated by the parties hereto, It is now ordered that before entry of the decree herein, and within sixty days from the date hereof, each State shall give written notice to the other State of the points between which such State desires that such boundary line shall be definitively marked by monuments, with proper inscriptions, and within said time shall file proof 590 290U.S. OCTOBER TERM, 1933. Decisions Per Curiam, Etc. of said notice with the Clerk of this Court. If the two States so elect they may within such sixty days hie with the Clerk of this Court, in lieu of such notices, a stipulation containing an agreed designation of the parts of the boundary to be so marked. No. 3. Columbia-Deschutes Power Co. v. Stricklin, State Engineer. Appeal from the Supreme Court of Oregon. Motion to dismiss argued October 10, 1933. Decided October 16, 1933. Per Curiam: The appeal herein is dismissed for the want of jurisdiction, upon the ground that the application for allowance of the appeal was not made within the time provided by law. Section 8 (a), Act of February 13, 1925 (c. 229,43 Stat. 936, 940; U.S. Code, Title 28, § 350). Mr. Willis S. Moore, Assistant Attorney General of Oregon, with whom Mr. I. H. Van Winkle, Attorney General, and Mr. Alfred E. Clark. Assistant Attorney General, were on the brief, for appellee, in support of the motion. Mr. Arthur L. Veazie, for appellant, in opposition thereto. Reported below: 134 Ore. 623; 286 Pac. 563, 294 Pac. 1049. No. 6, original. Louisiana v. Mississippi. October 16, 1933. Order entered approving and adopting the report of Samuel S. Gannett, commissioner, showing the work done, time employed, and expenses incurred by him in running, locating, and marking the boundary line between the two States, as directed by the decree of April 13, 1931, 283 U.S. 793; approving the action of the two States in paying the expenses incurred by the commissioner; and fixing the compensation of the commissioner, to be paid by the two States in equal shares. For the opinion in this case, see 282 U.S. 458. OCTOBER TERM, 1933. 591 290U.S. Decisions Per Curiam, Etc. No. 18. Helvering, Commissioner of Internal Revenue, v. Northern Coal Co.; No. 19. Same v. C. H. Sprague & Son Co. ; and No. 21. Same v. Oswego & Syracuse R. Co. Nos. 18 and 19, on writs of certiorari to the Circuit Court of Appeals for the First Circuit; No. 21, on certiorari to the Circuit Court of Appeals for the Second Circuit. Argued October 13, 16, 1933. Decided October 23, 1933. Per Curiam: Decrees affirmed by an equally divided Court. Mr. Justice Roberts took no part in the consideration or decision of these cases. Mr. Erwin N. Griswold, with whom Solicitor General Biggs and Messrs. Sewall Key and J. P. Jackson were on the brief, for petitioner. Mr. Paul F. Myers, with whom Mr. Edmund B. Quiggle was on the brief, for respondents in Nos. 18 and 19. Mr. Douglas Swift for respondent in No. 21. ’Reported below: 62 F. (2d) 742; 62 F. (2d) 518. No. 20. Helvering, Commissioner of Internal Revenue, v. U.S. Refractories Corp. Certiorari to the Circuit Court of Appeals for the Third Circuit. Argued October 16, 1933. Decided October 23, 1933. Per Curiam: Decree affirmed by an equally divided Court. Mr. Justice Roberts took no part in the consideration or decision of this case. Mr. Erwin N. Griswold, with whom Solicitor General Biggs and Messrs. Sewall Key and J. P. Jackson were on the brief, for petitioner. Mr. W. W. Montgomery, Jr., with whom Mr. Robert P. Smith was on the brief, for respondent. Reported below: 64 F. (2d) 69. No. 25. Helvering, Commissioner of Internal Revenue, v. Duke et al. Certiorari to the Circuit Court of Appeals for the Third Circuit. Argued October 17, 1933. Decided October 23, 1933. Per Curiam: Decree affirmed by an equally divided Court. Mr. Chief Jus- 592 290 U.S. OCTOBER TERM, 1933. Decisions Per Curiam, Etc. tice Hughes took no part in the consideration or decision of this case. Solicitor General Biggs and Mr. Erwin N. Griswold, with whom Messrs. Sewall Key and Francis H. Horan were on the brief, for petitioner. Mr. John W. Davis, with whom Messrs. Wm. R. Perkins, Forrest Hyde, H. H. Shelton, and Marion N. Fisher were on the brief, for respondents. Reported below: 62 F. (2d) 1057. No. 28. United States, Trustee, et al. v. McGowan et al. ; and No. 29. Same v. Bakers Bay Fish Co. et al. Writs of certiorari to the Circuit Court of Appeals for the Ninth Circuit. Argued October 20, 1933. Decided October 23, 1933. Per Curiam: Decrees affirmed. Bodkin v. Edwards, 255 U.S. 221, 223; Texas & New Orleans R. Co. v. Railway Clerks, 281 U.S. 548, 558; Keating n. Public National Bank, 284 U.S. 587; United States v. Commercial Credit Co., 286 U.S. 63, 67; Page n. Arkansas Natural Gas Corp., 286 U.S. 269, 271. Assistant Solicitor General MacLean, with whom Solicitor General Biggs and Mr. Nat M. Lacy were on the brief, for the United States et al. Mr. Guy E. Kelly, with whom Mr. G. W. Hamilton, Attorney General of Washington, and Mr. J. H. Secrest, Assistant Attorney General, were on the brief for respondents. Reported below: 62 F. (2d) 955. No. —, original. Ex parte McCarthy. October 23, 1933. The motion for leave to file petition for writ of habeas corpus is denied. Mr. J. W. McCarthy, pro se. No. 472. Public Service Comm’n of Indiana et al. v. Northern Indiana Public Service Co. Appeal from the District Court of the United States for the Northern 593 290 U.S. OCTOBER TERM, 1933. Decisions Per Curiam, Etc. District of Indiana. Jurisdictional statement submitted October 21, 1933. Decided November 6, 1933. Per Curiam: The order granting an interlocutory injunction is affirmed. (1) Ex parte Young, 209 U.S. 123, 159; Ex parte LaPrade, 289 U.S. 444, 455, 456; (2) Alabama n. United States, 279 U.S. 229; Binjord v. McLeaish, 284 U.S. 598. Messrs. George W. Hufsmith and Joseph W. Hutchinson for appellants. Mr. John C. Lawyer for appellee. Reported below: 1 F.Supp. 296. No. 493. Paul Klopstock & Co., Inc. v. United Fruit Co. Appeal from the Supreme Court of Louisiana. Jurisdictional statement submitted October 21, 1933. Decided November 6, 1933. Per Curiam: The motion of appellant to strike the statement opposing jurisdiction is denied. The appeal is dismissed for the want of jurisdiction. Section 237 (a) Judicial Code as amended by the Act of February 13, 1925 (43 Stat. 936, 937). Treating the papers whereon the appeal was allowed as a petition for writ of certiorari as required by § 237 (c) Judicial Code as amended (43 Stat. 936, 938), certiorari is denied. Messrs. Percy S. Benedict and Michael M. Irwin for appellant. Messrs. Edouard F. Henriques and W. B. Spencer, Jr., for appellee. Reported below: 177 La. 811; 149 So. 462. No. —, original. Ex parte Bernstein. November 6, 1933. Motion for leave to file petition for writ of habeas corpus denied. Mr. Irwin J. Bernstein, pro se. No. 222. Montana et al. v. United States et al. Appeal from the District Court of the United States for the District of Montana. Submitted November 8, 1933. Decided November 13, 1933. Per Curiam: Decree 15459°—34---38 594 290 U.S. OCTOBER TERM, 1933. Decisions Per Curiam, Etc. affirmed. United States v. Louisiana, ante, p. 70. Mr. Raymond T. Nagle, Attorney General of Montana, and Mr. Francis A. Silver were on the brief for appellants. Solicitor General Biggs and Messrs. Elmer B. Collins, Daniel W. Knowlton, and Edward M. Reidy were on the brief for the United States and Interstate Commerce Commission, appellees. Messrs. M. L. Countryman, Jr., D. F. Lyons, J. N. Davis, Walter McFarland, J. M. Souby, Conrad Olson, and F. G. Dorety were on the brief for the railway companies, appellees. Messrs. John E. Benton and Clyde S. Bailey, by leave of Court, filed a brief on behalf of the National Association of Railroad and Utilities Commissioners, as amicus curiae. Reported below: 2 F.Supp. 448. No. 351. Larabee Flour Mills Co. v. First National Bank of Dublin; and No. 352. First National Bank of St. Petersburg et al. v. Miami. Certificates from the Circuit Court of Appeals for the Fifth Circuit. Argued November 8, 1933. Decided November 13, 1933. Per Curiam: The certificates are dismissed. Baltimore & Ohio R. Co. v. Interstate Commerce Comm’n, 215 U.S. 216, 221; Waterville v. Van Slyke, 116 U.S. 699, 703-704; Jewell v. Knight, 123 U.S. 426, 432, 433, 434; Chicago B. & Q. Ry. Co. v. Williams, 205 U.S. 444, 451, 454; Hallowell n. United States, 209 U.S. 101, 106, 107; United States v. Mayer, 235 U.S. 55, 66; Biddle v. Luvisch, 266 U.S. 173, 174, 175. Messrs. C. C. Crockett, W. W. Larsen, and W. W. Larsen, Jr., were on the brief for Larabee Flour Mills Co. Mr. Kenneth I. McKay, with whom Mr. Maynard Ramsey was on the brief, for the First National Bank of Dublin and the First National Bank of St. Petersburg. Mr. H. E. Hackney, with whom Mr. F. G. Await and George P. Barse were on the brief, for the OCTOBER TERM, 1933. 595 290U.S. Decisions Per Curiam, Etc. Comptroller of the Currency. Mr. C. I. Carey for the City of Miami. No. 41. Board of Supervisors of Harrison County et al. v. Board of Supervisors of Pottawattamie County et al. Appeal from the Supreme Court of Iowa. Argued November 9, 1933. Decided November 13,1933. Per Curiam: The appeal herein is dismissed for the want of a substantial federal question. Boston & Maine R. Co. v. Armburg, 285 U.S. 234, 240; O’Gorman & Young v. Hartford Ins. Co., 282 U.S. 251, 257, 258; Hardware Dealers Mutual Fire Ins. Co. v. Glidden Co., 284 U.S. 151, 158; Lawrence v. State Tax Comm’n, 286 U.S. 276, 283. Messrs. Ellsworth C. Alvord and Harry L. Robertson for appellants. Mr. George S. Wright for appellees. Reported below: 214 la. 655; 241 N.W. 14. No. 525. American Baseball Club of Philadelphia et al. v. Philadelphia et al. Appeal from the Supreme Court of Pennsylvania. Jurisdictional statement submitted November 4, 1933. Decided November 13, 1933. Per Curiam: The appeal herein is dismissed for the want of a substantial federal question. (1) Ex parte Poresky, ante, p. 30; Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105; Equitable Life Assurance Society v. Brown, 187 U. S. 308, 311; Pennsylvania Hospital v. Philadelphia, 245 U.S. 20, 24; Roe v. Kansas, 278 U.S. 191. (2) Patsone v. Pennsylvania, 232 U.S. 138, 144; Silver v. Silver, 280 U.S. 117, 123; Sproles v. Binford, 286 U.S. 374, 396. (3) United States v. Grimaud, 220 U.S. 506, 516, 518; United States n. Chemical Foundation, 272 U.S. 1,11,12; Hampton & Co. v. United States, 276 U.S. 394, 406, 407. Mr. John B. Gest for appellants. Messrs. Thos. B. K. Ringe and Ernest Lowengrund for appellees. Reported below: 312 Pa. 311; 167 Atl. 891. 596 290 U.S. OCTOBER TERM, 1933. Decisions Per Curiam, Etc. No. 546. American Airways, Inc. v. Grosjean. Appeal from the District Court of the United States for the Eastern District of Louisiana. Jurisdictional statement submitted November 4, 1933. Decided November 13, 1933. Per Curiam: Decree affirmed. Edelman v. Boeing Air Transport, Inc., 289 U.S. 249, 251, 252. Messrs. Hugh N. Wilkinson and R. 8. Pruitt for appel-plant. No appearance for appellee. Reported below: 3 F.Supp. 995. No. 551. Wald Transfer & Storage Co. v. Smith et al. Appeal from the District Court of the United States for the Southern District of Texas. Jurisdictional statement submitted November 4, 1933. Decided November 13, 1933. Per Curiam: Decree affirmed. Bradley v. Public Utilities Comm’n, 289 U.S. 92, 95-98. Mr. Maurice Hirsch for appellant. No appearance for appellees. Reported below: 4 F.Supp. 61. [See post, p. 602.] No. 552. Beard v. Smith et al. Appeal from the District Court of the United States for the Southern District of Texas. Jurisdictional statement submitted November 4, 1933. Decided November 13, 1933. Per Curiam: Decree affirmed. Bradley n. Public Utilities Comm’n, 289 U.S. 92, 95—98. Mr. Maurice Hirsch for appellant. No appearance for appellees. Reported below: 4 F.Supp. 61. [See post, p. 602.] No. —, original. Ex parte Latta. November 13, 1933. The motion for leave to file petition for writ of habeas corpus is denied. Mr. Garland Latta, pro se. No. [18], original. Pennsylvania v. Arkansas. November 13, 1933. The motion for leave to file a bill of 597 290U.S. OCTOBER TERM, 1933. Decisions Per Curiam, Etc. complaint herein is granted and process is ordered to issue returnable on Monday, January 15, next. Mr. Philip S. Moyer for plaintiff. Mr. W. L. Pope for defendant. No. —, original. Ex parte Thomas et al. November 13, 1933. The rule to show cause herein is discharged and the motion for leave to file petition for writ of mandamus is denied. Mr. W. Bissell Thomas for petitioners. No. 529. Coale et al. v. Pearson et al. Appeal from the Court of Appeals of Maryland. Jurisdictional statement submitted November 11, 1933. Decided November 20, 1933. Per Curiam: The appeal herein is dismissed for the want of a substantial federal question. Equitable Life Assurance Society v. Brown, 187 U.S. 308, 311; Roe v. Kansas, 278 U.S. 191; American Baseball Club v. Philadelphia, ante, p. 595; Atkin v. Kansas, 191 U.S. 207, 222, 223; Heim v. McCall, 239 U.S. 175, 191; Stephenson v. Binford, 287 U.S. 251, 275, 276; Waugh n. Mississippi University, 237 U.S. 589, 596, 597; United States v. Macintosh, 283 U.S. 605, 623, 624. Mr. John H. Skeen for appellants. Mr. William Preston Lane, Jr., Attorney General of Maryland, and Mr. Willis R. Jones for appellees. Reported below: 165 Md. 224; 167 Atl. 54. No. 562. Lukens v. Pennsylvania. Appeal from the Supreme Court of Pennsylvania. Jurisdictional statement submitted November 11, 1933. Decided November 20, 1933. Per Curiam: The appeal herein is dismissed for the want of a substantial federal question. Wabash R. Co. v. Flannigan, 192 U.S. 29; Equitable Life Assurance Society v. Brown, 187 U.S. 308, 311; American Baseball Club v. Philadelphia, ante, p. 595; State Board of Tax 598 290U.S. OCTOBER TERM, 1933. Decisions Per Curiam, Etc. Commissioners N. Jackson, 283 U.S. 527, 537; Heisler v. Thomas Colliery Co., 260 U.S. 245, 255-257. Mr. William P. Smith for appellant. No appearance for appellee. Reported below: 312 Pa. 220; 167 Atl. 167. No. 569. Jefferson County v. Hard et al. Appeal from the Supreme Court of Alabama. Jurisdictional statement submitted November 11, 1933. Decided November 20, 1933. Per Curiam: The appeal herein is dismissed for the want of a substantial federal question. (1) Pawhuska v. Pawhuska Oil Co., 250 U.S. 394, 397-399; Trenton n. New Jersey, 262 U.S. 182, 188, 191, 192; Chicago v. Chicago Rapid Transit Co., 284 U.S. 577, 578. (2) Quong Ham Wah Co. v. Industrial Accident Comm’n, 255 U.S. 445, 448, 449; Knights of Pythias v. Meyer, 265 U.S. 30, 32, 33; American Railway Express Co. v. Royster Guano Co., 273 U.S. 274, 280; Swiss Oil Corp. v. Shanks, 273 U.S. 392, 411, 412. Mr. J. Q. Smith for appellant. No appearance for appellees. Reported below: 149 So. 81. No. 103. Norumbega Co. v. Bennett, Attorney General of New York, et al. Appeal from the District Court of the United States for the Eastern District of New York. Argued November 16, 1933. Decided December 4, 1933. Per Curiam: The decree of the District Court herein is reversed, and the cause is remanded to the District Court, as specially constituted, with directions to dismiss the bill of complaint for the want of jurisdiction, upon the ground that the allegations of the bill do not set forth a substantial federal question. Newburyport Water Co. v. Newburyport, 193 U.S. 561, 576, 579; Levering & Garrigues Co. n. Morrin, 289 U.S. 103, 105; Ex parte Poresky, ante, p. 30. Mr. Bernhard Knollenberg for appellant. Mr. John J. Bennett, Jr., Attorney General of 599 290U.S. OCTOBER TERM, 1933. Decisions Per Curiam, Etc. New York, and Mr. Wendell P. Brown, Assistant Attorney General, were on the brief for appellees. Reported below: 3 F.Supp. 500, 502. No. 566. Danciger Oil & Rfg. Co. et al. v. Smith et al. Appeal from the District Court of the United States for the Northern District of Texas. Jurisdictional statement submitted November 18, 1933. Decided December 4, 1933. Per Curiam: The motion of the appellant for leave to file statement as to jurisdiction is granted. On consideration of a stipulation of the parties that this cause has become moot and of a motion by the appellant to reverse the decree of the District Court and to remand the cause to that court with directions to dismiss the bill as moot, it is ordered that the said motion be, and it is hereby, granted, and that the decree of the specially constituted District Court rendered in this case is reversed, and the cause is remanded to that court with directions to dismiss the bill of complaint upon the ground that the cause is moot. Brownlow v. Schwartz, 261 U.S. 216; Alejandrino v. Quezon, 271 U.S. 528, 535, 536; U.S. ex rel. Norwegian Nitrogen Products Co. v. Tariff Commission, 274 U.S. 106, 112; Railroad Commission of Texas v. MacMillan, 287 U.S. 576; Coyne v. Prouty, 289 U.S. 704; First Union Trust de Savings Bank v. Consumers Co., ante, p. 585. All costs in this Court and in the court below are to be taxed against the appellant as stipulated. Messrs. S. A. L. Morgan, I. J. Ringolsky, W. G. Boatright, and Nelson Phillips for appellants. No appearance for appellees. Reported below: 4 F.Supp. 236. No. 574. KFAB Broadcasting Co. v. Sorensen. Appeal from the Supreme Court of Nebraska. Jurisdictional statement submitted November 18, 1933. Decided De- 600 OCTOBER TERM, 1933. Decisions Per Curiam, Etc. 290U.S. cember 4, 1933. Per Curiam: The appeal herein is dismissed for the reason that the judgment of the state court sought here to be reviewed was based upon a non-federal ground adequate to support it. Cleveland v. Chamber-lain, 1 Black 419, 425, 426; East Tennessee, V. & G. R. Co. v. Southern Telegraph Co., 125 U.S. 695; Mills v. Green, 159 U.S. 651, 654; Love v. Griffith, 266 U.S. 32; Live Oak Water Users Assn. v. Railroad Commission, 269 U.S. 354, 359; Gerard Trust Co. v. Ocean & Lake Realty Co., 286 U.S. 523; Wagner v. Leenhouts, 287 U.S. 571; Real Estate Land Title & Trust Co. v. Spring field, 287 U.S. 577. Mr. Maxwell V. Beghtol for appellant. No appearance for appellee. Reported below: 123 Neb. 348; 243 N.W. 82. No. 124. Missouri Pacific R. Co. v. Norwood, Attorney General of Arkansas, et al. Appeal from the District Court of the United States for the Western District of Arkansas. Argued December 6,1933. Decided December 11, 1933. Per Curiam: The Court sees no reason to disagree with the determinations of fact reached by the District Court. The decree is affirmed. Mr. Edward J. White, with whom Mr. Thomas B. Pryor was on the brief, for appellant. Mr. Frank L. Mulholland, with whom Mr. Hal L. Norwood, Attorney General of Arkansas, Mr. Robert F. Smith, Assistant Attorney General, and Mr. W. D. Jackson were on the brief, for appellees. Reported below: 42 F. (2d) 765. No. 598. Rosenberg v. Wisconsin. Appeal from the Municipal Court of Milwaukee County, Wisconsin. Jurisdictional statement submitted December 2, 1933. Decided December 11,1933. Per Curiam: The motion to dismiss the appeal herein is granted, and the appeal is dismissed for the want of a substantial federal question. (1) OCTOBER TERM, 1933. 601 290 UB. Decisions Per Curiam, Etc. Mculler v. Illinois, 289 U.S. 711; Leach v. California, 287 U.S. 579, 580; Lavine v. California, 286 U.S. 528; Sproles v. Binford, 286 U.S. 374, 393; Bandini v. Superior Court, 284 U.S. 8, 18; Hygrade Provision Co. v. Sherman, 266 U.S. 497, 501-503. (2) Durland v. United States, 161 U.S. 306, 315; Husty v. United States, 282 U.S. 694, 702. (3) Portland Ry. Co. v. Oregon Railroad Comm’n, 229 U.S. 397, 411, 412; Pure Oil Co. v. Minnesota, 248 U.S. 158,164; Aetna Life Ins. Co. v. Dunken, 266 U.S. 389, 394. Messrs. Wm. E. Leahy and Wm. J. Hughes, Jr., for appellant. Mr. Fred M. Wylie for appellee. Reported below: 212 Wis. 434; 249 N.W. 541. Nos. 600 and 601. New York ex rel. Northern Finance Corp. v. Lynch et al. Appeals from the Supreme Court, County of Albany, New York. Jurisdictional statement submitted December 2, 1933. Decided December 11, 1933. Per Curiam: The motion to dismiss the appeals herein is denied. The motion to affirm is granted, and the judgments are affirmed. Pacific Co., Ltd. v. Johnson, 285 U.S. 480, 490. Mr. Edwin DeT. Bechtel for appellant. Mr. Wendell P. Brown for appellees. No. [19], original. Ex parte Baldwin et al., Trustees, et al. December 11, 1933. The motion for leave to file petition for writ of mandamus herein is granted and a rule to show cause is ordered to issue returnable on Monday, January 8 next. No. —, original. Ex parte Western Loan & Securities Co.; and No. —, original. Ex parte Mayer. December 11,1933. Motions for leave to file petitions for writs of mandamus 602 OCTOBER TERM, 1933. Decisions Per Curiam, Etc. 290U.S. in these causes are severally denied. Ex parte United States, 287 U.S. 241, 248. Mr. George S. McCarthy for petitioners. No. 181. Clark, Administratrix, et al. v. Moffett et al. Certiorari to the Supreme Court of Kansas. December 11, 1933. Motion for leave to file petition for rehearing denied. No. 551. Wald Transfer & Storage Co. v. Smith et al.; and No. 552. Beard v. Same. December 11, 1933. Upon consideration of the petitions for rehearing, the decrees entered herein by this Court on November 13, 1933, {ante, p. 596) are amended so as to provide that the decrees entered in these causes by the District Court, as specially constituted, be modified by providing that the appellants may apply $t any time to the District Court, by bill or otherwise, as they may be advised, for a further order or decree, in case it shall appear that the state court shall have construed the applicable state statute as not authorizing the state commission to enter the orders challenged in this proceeding. Glenn v. Field Packing Co., ante, p. 177. As so modified, the decrees of the District Court are affirmed. Bradley v. Public Utilities Comm’n, 289 U.S. 92, 95-98. The petitions for rehearing are denied. Mr. Maurice Hirsch for appellants. No appearance for appellees. Reported below: 4 F.Supp. 61. No. 2, original. Vermont v. New Hampshire. December 11, 1933. Stipulation of the parties designating parts of boundary to be marked presented. No. 168. Jannett et al. v. Hardie, Sheriff. Appeal from the Supreme Court of Florida. Argued December OCTOBER TERM, 1933. 603 290U.S. Decisions Per Curiam, Etc. 11, 1933. Decided December 18, 1933. Per Curiam: The Supreme Court of Florida entertained on rehearing and decided the constitutional question as to the denial of the equal protection of the laws under the Fourteenth Amendment. The judgment is affirmed. Missouri v. Lewis, 101 U.S. 22, 30, 31; Hayes v. Missouri, 120 U.S. 68, 71, 72; Budd v. New York, 143 U.S. 517, 548; Griffith v. Connecticut, 218 U.S. 563; Engel v. O’Malley, 219 U.S. 128, 137, 138; Mutual Loan Co. v. Martell, 222 U.S. 225, 235, 236; Toyotav. Hawaii, 226 U.S. 184,191,192; Northwestern Laundry Co. n. Des Moines, 239 U.S. 486, 495; Packard n. Banton, 264 U.S. 140, 143, 144; Radice n. New York, 264 U.S. 292, 296; Dillingham v. McLaughlin, 264 U.S. 370; Ohio v. Akron Park District, 281 U.S. 74, 81. Mr. John M. Murrell, with whom Mr. W. L. Freeland was on the brief for appellants. Mr. Cary D. Landis, Attorney General of Florida, and Mr. H. E. Carter, Assistant Attorney General, were on the brief for appellee. By leave of Court, Mr. David J. Gallert filed a brief as amicus curiae. Reported below: 109 Fla. 129; 147 So. 296. No. 613. Ross v. Fort, Commissioner of Finance & Taxation of Tennessee. Appeal from the Supreme Court of Tennessee. Jurisdictional statement submitted December 9, 1933. Decided December 18, 1933. Per Curiam: The appeal herein is dismissed for the want of a substantial federal question. (1) Maguire v. Trefry, 253 U.S. 12; (2) Klein v. Board of Supervisors, 282 U.S. 19, 22-24; Magounv. Illinois Trust Ac Savings Bank, 170 U.S. 283, 298, 299; Keeney v. New York, 222 U.S. 525, 535, 536; Standard Stock Food Co. v. Wright, 225 U.S. 540, 550. Mr. J. A. Fowler for appellant. No appearance for appellee. Reported below: 166 Tenn. 314; 61 S.W. (2d) 479. 604 290 U.S. OCTOBER TERM, 1933. Decisions Per Curiam, Etc. No. —, original. Ex parte Boyce. December 18, 1933. Motion for leave to file petition for writ of mandamus denied. Mr. Benjamin A. Boyce, pro se. No. —, original. Ex parte Dasher. December 18, 1933. Motion for leave to file petition for writ of habeas corpus denied. Mr. Burton G. Henson for petitioner. No. 602. Archerd v. Oregon. Appeal from the Supreme Court of Oregon. Jurisdictional statement submitted December 17, 1933. Decided January 8, 1934. Per Curiam: The appeal herein is dismissed (1) for the want of a properly presented federal question. Godchaux v. Estopinal, 251 U.S. 179; Rooker v. Fidelity Trust Co., 251 U.S. 114,117; Live Oak Water Users Assn. v. Railroad Comm’n, 269 U.S. 354, 357, 358; (2) for the want of a reviewable judgment by the highest court of the State in which a decision could have been had. John v. Paullin, 231 U.S. 583, 587; Newman v. Gates, 204 U.S. 89, 95; Chesapeake & Ohio Ry. Co. n. McDonald, 214 U.S. 101; Harrington v. Holler, 111 U.S. 796; and (3) for the want of a substantial federal question, Equitable Life Assurance Society n. Brown, 187 U.S. 300, 311,- Wabash R. Co. v. Flannigan, 192 U.S. 29; Roe v. Kansas, 278 U.S. 191. Mandate stayed and motion for leave to file petition for rehearing granted January 22, 1934. Mr. Chester I. Long for appellant. Messrs. I. H. Van Winkle, Ralph E. Moody, and Willis S. Moore for appellee. Reported below: 144 Ore. 309; 24 P. (2d) 5. No. 665. Agles v. Stolze Lumber Co. Appeal from the Supreme Court of Illinois. Jurisdictional statement submitted December 23, 1933. Decided January 8, 1934. Per Curiam: The motion of the appellee to dismiss the 605 290 U.S. OCTOBER TERM, 1933. Decisions Per Curiam, Etc. appeal herein is granted, and the appeal is hereby dismissed for the want of jurisdiction. Section 237 (a), Judicial Code, as amended by the Act of February 13, 1925 (43 Stat. 936, 937). Treating the papers whereon the appeal was allowed as an application for writ of certiorari as required by § 237 (c), Judicial Code, as amended (43 Stat. 936, 938), certiorari is denied. Mr. Ferdinand Tunnell for appellant. Messrs. Thomas Williamson and George D. Burroughs for appellee. No. 664. Schmeling v. F. W. Woolworth Co. Appeal from the Supreme Court of Kansas. Jurisdictional statement submitted December 30, 1933. Decided January 8, 1934. Per Curiam: The motion of the appellee to dismiss the appeal herein is granted, and the appeal is dismissed for the want of a substantial federal question. New York Central R. Co. v. White, 243 U.S. 188; Mountain Timber Co. v. Washington, 243 U.S. 219; Lower Vein Co. v. Industrial Board, 255 U.S. 144; Madera Sugar Pine Co. v. Industrial Commission, 262 U.S. 499; Castillo v. McConnico, 168 U.S. 674; 683; McDonald v. Oregon Navigation Co., 233 U.S. 665, 669, 670; Hebert v. Louisiana, 272 U.S. 312, 316, 317; Glenn v. Doyal, 285 U.S. 526. Mr. Joseph H. Brady for appellant. Mr. Clay C. Rogers for appellee. Reported below: 137 Kan. 573, 21 P. (2d) 337; 138 Kan. 281, 26 P. (2d) 265. No. 2, original. Vermont v. New Hampshire. January 8,1934. Decree entered. See ante, p. 579. No. —, original. Ex parte Miller et al. January 8, 1934. The motion for leave to file petition for writ of mandamus or prohibition is denied. Ex parte United States, 287 U.S. 241, 248, 249. Messrs. C. Wilbur Miller, 606 OCTOBER TERM, 1933. Decisions Granting Certiorari. 290U.S. Ernest B. Miller, Jos. I. McMullen, and Wm. Burnet Wright for petitioners. No. —, original. Ex parte Di Pippa. January 8, 1934. The motion for leave to file petition for writ of habeas corpus is denied. Mr. Rocco Di Pippa, pro se. No. —, original. Principality of Monaco v. Mississippi. January 8,1934. A rule is ordered to issue, returnable on Monday, February 5 next, requiring the defendant to show cause why the motion for leave to file the declaration herein should not be granted. No. 19, original. Ex parte Baldwin et al. January 8, 1934. Return to rule to show cause presented. DECISIONS GRANTING CERTIORARI, FROM OCTOBER 2, 1933, TO AND INCLUDING JANUARY 8, 1934. No. 184. First Union Trust & Savings Bank, Trustee, v. Consumers Co. et al. See same case, ante, p. 585. No. 88. United States v. Murdock. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Solicitor General Biggs and Messrs. Sewall Key and John H. McEvers for the United States. Messrs. Edmund Burke and Harold J. Bandy for respondent. Reported below: 62 F. (2d) 926. No. 241. Snyder v. Massachusetts. October 9, 1933. Petition for writ of certiorari to the Superior Court in and 607 290 US. OCTOBER TERM, 1933. Decisions Granting Certiorari. for the County of Middlesex, Massachusetts, granted. The motion for leave to proceed in forma pauperis is granted. Messrs. Henry P. Fielding, A. C. Webber, and L. H. Weinstein for petitioner. Messrs. Joseph E. Warner, George B. Lourie, and Frank G. Volpe for respondent. Reported below: 282 Mass. 401: 185 N.E. 376. No. 171. United States v. Jefferson Electric Mfg. Co. October 9, 1933. Petition for writ of certiorari to the Court of Claims granted. Solicitor General Biggs for the United States. Messrs. Adrian C. Humphreys and Newton K. Fox for respondent. Reported below: 77 Ct. Cis. 199; 2 F.Supp. 778. See also 38 F. (2d) 139. No. 187. Brown v. Commissioner of Internal Revenue. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted, limited to the question of the deduction on account of reserve. Messrs. Peter F. Dunne, Lloyd M. Robbins, and Arthur B. Dunne for petitioner. Solicitor General Biggs and Messrs. Sewall Key, Wm. Cutler Thompson, and Erwin N. Griswold for respondent. Reported below: 63 F. (2d) 66. No. 240. Federal Trade Commission v. Algoma Lumber Co. et al. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Solicitor General Biggs and Mr. Robert E. Healy for petitioner. Messrs. Warren Olney, Jr., Allan P. Matthew, and Carl I. Wheat for respondents. Reported below: 64 F. (2d) 618. No..51. Miller, Administrator, v. Union Pacific R. Co. October 9, 1933. Petition for writ of certiorari 608 290 U.S. OCTOBER TERM, 1933. Decisions Granting Certiorari. to the Circuit Court of Appeals for the Eighth Circuit granted. Messrs. William Buchholz and Martin J. O’Donnell for petitioner. Messrs. C. A. Magaw, I. N. Watson, Paul V. Barnett, Henry N. Ess, and Charles V. Garnett for respondent. Reported below: 63 F. (2d) 574. No. 54. Alexander, Collector, v. Cosden Pipe Line Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit granted. Solicitor General Biggs for petitioner. Messrs. James C. Denton and R. H. Wills for respondent. Reported below: 63 F. (2d) 663. No. 56. Alaska Steamship Co. v. United States. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Messrs. Charles W. Arth, Cassius E. Gates, and Norman M. Littell for petitioner. Solicitor General Biggs, Assistant Attorney General St. Lewis, and Messrs. Whitney North Seymour and J. Frank Staley for the United States. Reported below: 63 F. (2d) 398. No. 71. Stringfellow v. Atlantic Coast Line R. Co.; and No. 95. Atlantic Coast Line R. Co. v. Stringfellow. October 9, 1933. Petitions for writs of certiorari to the Circuit Court of Appeals for the Fifth Circuit granted. Messrs. Wm. C. McLean and Doyle Campbell for Stringfellow. Messrs. James R. Bussey, McKinney Barton, F. B. Grier, and W. E. Kay for Atlantic Coast Line R. Co. Reported below: 64 F. (2d) 173. No. 79. Trotter, Guardian, v. Tennessee. October 9, 1933. Petition for writ of certiorari to the Supreme 609 290 U.S. OCTOBER TERM, 1933. Decisions Granting Certiorari. Court of Tennessee granted. Mr. Russel R. Kramer for petitioner. Mr. James G. Johnson for respondent. Reported below: 165 Tenn. 519; 57 S.W. (2d) 455. No. 80. May et al. v. Hamburg-Amerikanische Packetfahrt Aktien-Gesellschaft. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Messrs. D. Roger Englar, Henry N. Longley, T. Catesby Jones, and F. Herbert Prem for petitioners. Messrs. John W. Griffin and Charles S. Haight for respondent. Reported below: 63 F. (2d) 248. No. 101. Ormsby et al., Executors, v. Chase et al. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Messrs. Robert T. McCracken, C. Brewster Rhoads, and Laurence H. Eldredge for petitioners. Messrs. Edward J. Fox and Edward J. Fox, Jr., for respondents. Reported below: 65 F. (2d) 521. No. 112. Federal Land Bank of Columbia, S.C., v. Gaines. October 9, 1933. Petition for writ of certiorari to the Supreme Court of North Carolina granted. Messrs. I. M. Bailey, Harry D. Reed, J. S. Massenburg, Peyton R. Evans, and Miss May T. Bigelow for petitioner. Mr. M. R. McCown for respondent. Reported below: 204 N.C. 278; 167 S.E. 856. No. 128. Texas & Pacific Ry. Co. v. Pottorff, Receiver. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit granted. Messrs. T. D. Gresham, Del W. Harrington, and 15459°—34----39 610 OCTOBER TERM, 1933. Decisions Granting Certiorari. 290U.S. M. E. Clinton for petitioner. Messrs. H. E. Hackney, Ben R. Howell, Thornton Hardie, F. G. Await, and George P. Barse for respondent. Reported below: 63 F. (2d) 1. Nos. 129, 130 and 131. Freuler, Administrator, v. Burnet, Commissioner of Internal Revenue. October 9, 1933. Petition for writs of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Messrs. W. W. Spalding, Robert A. Littleton, Claude R. Branch, and Felix T. Smith for petitioner. Solicitor General Biggs and Messrs. Sewall Key, Erwin N. Griswold, and Wm. Cutler Thompson for respondent. Reported below: 62 F. (2d) 733. No. 139. Marguerite T. Whitcomb v. Burnet, Commissioner of Internal Revenue; No. 140. Lepic v. Same; No. 141. Marie M. E. G. T. Whitcomb v. Same; Nos. 142 and 143. Lepic v. Same; and No. 144. Marie M. E. G. Whitcomb v. Same. October 9, 1933. Petition for writs of certiorari to the Court of Appeals of the District of Columbia granted. Messrs. W. W. Spalding, Claude R. Branch, and Felix T. Smith for petitioners. Solicitor General Biggs and Messrs. Sewall Key, Wm. Cutler Thompson, and Erwin N. Griswold for respondent. Reported below: 62 App.D.C. 170; 65 F. (2d) 803. No. 145. Louise A. Whitcomb v. Burnet, Commissioner of Internal Revenue; No. 146. Lydia L. Whitcomb v. Same; No. 147. Louise A. F. E. Whitcomb v. Same; Nos. 148 and 149. Lydia L. I. Whitcomb v. Same; and OCTOBER TERM, 1933. 611 290U.S. Decisions Granting Certiorari. No. 150. Louise A. F. E. Whitcomb v. Same. October 9, 1933. Petition for writs of certiorari to the Court of Appeals of the District of Columbia granted. Messrs. W. W. Spalding, Robert A. Littleton, Claude R. Branch, and Felix T. Smith for petitioners. Solicitor General Biggs and Messrs. Sewall Key, Wm. Cutler Thompson, and Erwin N. Griswold for respondent. Reported below: 62 App.D.C. 170; 65 F. (2d) 803. No. 133. R. H. Stearns Co. v. United States. October 9, 1933. Petition for writ of certiorari to the Court of Claims granted. Messrs. Frederick S. Winston, Howe P. Cochran and James S. Y. Ivins for petitioner. Solicitor General Biggs and Assistant Attorney General Wideman for the United States. Reported below: 77 Ct. Cis. 264; 2 F.Supp. 773. No. 152. Lumbra v. United States. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Messrs. Consuelo B. Northrop and Warren E. Miller for petitioner. Solicitor General Biggs, Assistant Attorney General St. Lewis, and Messrs. Erwin N. Griswold and W. Clifton Stone for the United States. Reported below: 63 F. (2d) 796. No. 153. Ladner, Collector, v. Philadelphia Barge Co. et al. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Solicitor General Biggs for petitioner. Messrs. Walter Riddle and Thomas P. Mikell for respondents. Reported below: 63 F. (2d) 258. No. 158. Burnet, Commissioner of Internal Revenue, v. Canfield. October 9, 1933. Petition for writ of 612 OCTOBER TERM, 1933. Decisions Granting Certiorari. 290U.S. certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Solicitor General Biggs for petitioner. Messrs. Edwin H. Cassels and Adolphus E. Graupner for respondent. Reported below: 62 F. (2d) 751. No. 212. Thorsen v. Commissioner of Internal Revenue. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Messrs. Edwin H. Cassels and Adolphus E. Graupner for petitioner. Solicitor General Biggs for respondent. Reported below: 65 F. (2d) 234. No. 163. Northwestern Pacific R. Co. v. Bobo, Administratrix. October 9, 1933. Petition for writ of certiorari to the District Court of Appeals, First Appellate District, of California, granted. Mr. W. H. Orrick for petitioner. Mr. Robert D. Duke for respondent. Reported below: 129 Cal. App. 273; 19 P. (2d) 10. No. 329. Routzahn, Collector of Internal Revenue, v. Willard Storage Battery Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit granted. Solicitor General Biggs for petitioner. Messrs. Augustus B. Stoughton and Charles C. Norris, Jr., for respondent. Reported below: 65 F. (2d) 89. No. 196. American Chain Co., Inc. v. Eaton, Collector of Internal Revenue. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Messrs. Chester I. Long, Peter Q. Nyce, Charles P. Swindler, and Samuel W. McIntosh for petitioner. Solicitor General Biggs and Messrs. Sewall Key, Francis H. Horan, and Erwin N. OCTOBER TERM, 1933. 613 290U.S., Decisions Granting Certiorari. Griswold for respondent. Reported below: 63 F. (2d) 783. _________ No. 173. Moore v. Chesapeake & Ohio Ry. Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Messrs. John P. Bramhall and Edward Davidson for petitioner. Mr. Albert H. Cole for respondent. Reported below: 64 F. (2d) 472. No. 178. Norton, Deputy Commissioner, v. Vesta Coal Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Solicitor General Biggs for petitioner. Mr. Wm. A. Challener for respondent. Reported below: 63 F. (2d) 165. No. 194. Federal Trade Comm’n v. R. F. Keppel & Bro., Inc. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Solicitor General Biggs and Mr. Robert E. Healy for petitioner. Messrs. George E. Elliott and Harris C. Arnold for respondent. Reported below: 63 F. (2d) 81. No. 200. Missouri Pacific R. Co. v. Hartley Bros. October 9, 1933. Petition for writ of certiorari to the Supreme Court of Oklahoma granted. Messrs. Thomas B. Pryor, Edward J. White, and William L. Curtis for petitioner. Messrs. G. C. Spillers and H. D. Moreland for respondent. Reported below: 162 Okla. 194; 19 P. (2d) 337. No. 208. Williams v. Union Central Life Ins. Co. October 9, 1933. Petition for writ of certiorari to the 614 OCTOBER TERM, 1933. Decisions Granting Certiorari. 290U.S. Circuit Court of Appeals for the Fifth Circuit granted. Mr. Charles 0. Harris for petitioner. Messrs. Eugene P. Locke and Stanley K. Henshaw for respondent. Reported below: 65 F. (2d) 240. No. 224. United States v. Provident Trust Co., Administrator. October 9, 1933. Petition for writ of certiorari to the Court of Claims granted. Solicitor General Biggs for the United States. Messrs. George M. Morris and Joseph Carson for respondent. Reported below: 77 Ct. Cis. 37; 2 F.Supp. 472. No. 257. E. H. Ferree Co. et al. v. United Shoe Machinery Corp. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Messrs. George P. Dike and Donald Campbell for petitioners. Mr. Charles Neave for respondent. Reported below: 64 F. (2d) 101. No. 290. Chase National Bank, Trustee, v. City of Norwalk. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit granted. Messrs. George D. Welles and Timothy N. Pfeiffer for petitioner. Messrs. G. Ray Craig and Walter A. Eversman for respondent. Reported below: 63 F. (2d) 911. No. 295. Landress v. Phoenix Mutual Life Ins. Co. et al. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit granted. Messrs. William L. Frierson and R. P. Frierson for petitioner. Mr. Vaughn Miller for respondents. .Reported below: 65 F. (2d) 232. 615 290 U.S. OCTOBER TERM, 1933. Decisions Granting Certiorari. No. 308. Murray v. Joe Gerrick & Co. et al. October 9, 1933. Petition for writ of certiorari to the Supreme Court of Washington granted. Messrs. William Martin and M. M. Doyle for petitioner. Messrs Walter L. Clark, Roszel C. Thomsen, J. Speed Smith, and Stephen V. Carey for respondents. Reported below: 172 Wash. 365; 20 P. (2d) 591. No. 311. Van Dyke v. Commissioner of Internal Revenue. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Messrs. R. A. Bartlett and Wm. E. Brooks for petitioner. Solicitor General Biggs and Messrs. Sewall Key and George H. Foster for respondent. Reported below: 63 F. (2d) 1020. No. 312. Van Dyke v. Commissioner of Internal Revenue. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Messrs. R. A. Bartlett and Wm. E. Brooks for petitioner. Solicitor General Biggs and Messrs. Sewall Key and George H. Foster for respondent. Reported below: 63 F. (2d) 1020. No. 325. Hansen v. Haff, Acting Commissioner of Immigration. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Mr. Roger O’Donnell for petitioner. Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith for respondent. Reported below: 65 F. (2d) 94. No. 343. Hamburg-American Line v. United States. October 9, 1933. Petition for writ of certiorari to the 616 OCTOBER TERM, 1933. Decisions Granting Certiorari. 290 U.S. Circuit Court of Appeals for the Second Circuit granted. Messrs. Roger O’Donnell, Wm. J. Peters, and Lambert O’Donnell for petitioner. Solicitor General Biggs for the United States. Reported below: 65 F. (2d) 369. No. 349. Burnet, Commissioner of Internal Revenue, v. American Chicle Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Solicitor General Biggs for petitioner. Messrs. William C. Breed and Paul L. Peyton for respondent. Reported below: 65 F. (2d) 454. No. 225. Burnet, Commissioner of Internal Revenue, v. Falk et al. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Solicitor General Biggs, Miss Helen R. Carloss, and Messrs. Sewall Key and Erwin N. Griswold for petitioner. Messrs. Charles F. Fawsett and R. S. Doyle for respondents. Reported below: 64 F. (2d) 171. Nos. 227 and 228. Reynolds v. Cooper; and No. 229. Same v. Cooper et al. October 9, 1933. Petition for writs of certiorari to the Circuit Court of Appeals for the Tenth Circuit granted. Solicitor General Biggs for petitioner. Messrs. N. E. Corthell and A. W. McCollough for respondents. Reported below:-64 F. (2d) 644. No. 394. Funk v. United States. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit granted, limited to the question as to what law is applicable to the determination 617 OCTOBER TERM, 1933. 290 U.S. Decisions Granting Certiorari. of the competency of the wife of the petitioner as a witness. The motion for leave to proceed further herein in forma pauperis is granted. Messrs. Charles A. Hammer and John W. Carter, Jr., for petitioner. Solicitor General Biggs, Assistant Solicitor General MacLean, and Messrs. Amos W. W. Woodcock and W. Marvin Smith for the United States. Reported below: 66 F. (2d) 70. No. 338. Wolfle v. United States. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit is granted, limited to the question as to what law is applicable to the determination of the question of privilege which was raised at the trial. Messrs. S. J. Wettrick and H. Sylvester Garvin for petitioner. Solicitor General Biggs and Mr. Harry S. Ridgely for the United States. Reported below: 64 F. (2d) 566. No. 400. City of Marion, Illinois, et al. v. Sneeden, Receiver. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Messrs. David F. Rosenthal, Richard Mayer, Carl Meyer, R. T. Cook, C. E. Pope, Henry F. Driemeyer, and William Cattron Rigby for petitioners. Messrs. John Hay, Charles C. Murrah, and Hosea V. Ferrell for respondent. Reported below: 64 F. (2d) 721. No. 361. Interstate Commerce Comm’n v. Pennsylvania R. Co. et al. October 16,1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Messrs. Daniel W. Knowlton, H. L. Underwood, and Wm. H. Bonneville for petitioner. Messrs. Frederic D. McKenney and Henry Wolf Bikie for respondents; Reported below: 66 F. (2d) 37. 618 290 U.S. OCTOBER TERM, 1933. Decisions Granting Certiorari. No. 434. Burroughs and Cannon v. United States. October 23, 1933. Petition for writ of certiorari to the Court of Appeals of the District of Columbia granted. Mr. Robert H. McNeill for petitioners. Solicitor General Biggs, Assistant Attorney General Malloy, and Mr. Harry S. Ridgely, for the United States. Reported below: 62 App.D.C. 163; 65 F. (2d) 796. No. 419. Globe Indemnity Co. v. United States ex rel. Steacy-Schmidt Mfg. Co., Inc. October 23, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Mr. Frederic L. Ballard for petitioner. Mr. Samuel W. Cooper for respondent. Reported below: 66 F. (2d) 302. No. 421. Falbo v. United States. October 23, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Messrs. Warren E. Miller and Samuel W. Bassett for petitioner. Solicitor General Biggs and Mr. W. Clifton Stone for the United States. Reported below: 64 F. (2d) 948. No. 429. Travelers Protective Assn. v. Prinsen. October 23, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit granted. Messrs. Emmett M. Bagley and Paul H. Ray for petitioner. Messrs. D. Worth Clark, Joseph H. Peterson, and Harley W. Gustin for respondent. Reported below: 65 F. (2d) 841. No. 435. Miguel v.'McCarl, Comptroller General, et al. October 23, 1933. Petition for writ of certiorari 619 OCTOBER TERM, 1933. 290 TJ.S. Decisions Granting Certiorari. to the Court of Appeals of the District of Columbia granted. Messrs. Samuel T. Ansell and George M. Wil-meth for petitioner. Solicitor General Biggs for respondent. Reported below: 62 App.D.C. 259; 66 F. (2d) 564. No. 449. Clark, Receiver, v. Williard et al. October 23, 1933. Petition for writ of certiorari to the Supreme Court of Montana granted. Messrs. M. S. Gunn and Edmond M. Cook for petitioner. Mr. Louis P. Donovan for respondents. Reported below: 91 Mont. 493; 11 P. (2d) 782. No. 463. Elliot et al. v. Lombard. November 6,1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit granted. Messrs. J. Zach Spearing and Wm. A. Van Siclen for petitioners. No appearance for respondent. Reported below: 66 F. (2d) 662. No. 477. Best, Administrator, v. District of Columbia. November 6, 1933. Petition for writ of certiorari to the Court of Appeals of the District of Columbia granted. Messrs. James A. O'Shea, John H. Burnett, and Alfred Goldstein for petitioner. Messrs. William W. Bride, Vernon E. West, and Robert E. Lynch for respondent. Reported below: 62 App.D.C. 271; 66 F. (2d) 797. No. 505. Manhattan Properties, Inc. v. Irving Trust Co., Trustee ; and No. 506. Brown et al. v. Same. November 13, 1933. Petitions for writs of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Messrs. C. Dickerman Williams, William D. Mitchell, Rollin Browne, Ralph Montgomery Arkush, and Amos J. Peaslee for peti- 620 290 U.S. OCTOBER TERM, 1933. Decisions Granting Certiorari. tioners. Messrs. Frederick H. Wood, Wm. D. Whitney, James S. Hays, and Harold L. Fierman for respondent. Reported below: 66 F. (2d) 470, 473. No. 524. Malavazos et al. v. Irving Trust Co., Trustee. November 20, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Mr. Albert D. Cash for petitioners. Mr. Moses Cohen for respondent. Reported below: 66 F. (2d) 482. No. 498. Federal Land Bank of Berkeley v. Warner et al. November 20, 1933. Petition for writ of certiorari to the Supreme Court of Arizona granted. Messrs. Richard W. Young and Peyton R. Evans, and Miss May T. Bigelow for petitioner. Mr. Charles Woolf for respondents. Reported below: 23 P. (2d) 563. No. 515. Helvering, Commissioner of Internal Revenue, v. Newport Co. November 20, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Solicitor General Biggs for petitioner. Messrs. Charles F. Fawsett and Richard S. Doyle for respondent. Reported below: 65 F. (2d) 925. No. 526. Pagel et al. v. Pagel, Administrator, et al. November 20, 1933. Petition for writ of certiorari to the Supreme Court of Minnesota granted. Mr. L. D. Barnard for petitioners. Mr. Charles A. Swenson for respondents. Reported below: 189 Minn. 383; 249 N.W. 417. No. 535. Connell et al. v. Walker. November 20, 1933. Petition for writ of certiorari to the Supreme Court 621 290 U.S. OCTOBER TERM, 1933. Decisions Granting Certiorari. of North Dakota granted. Mr. John A. Jorgenson for petitioners. Mr. Paul E. Shorb for respondent. Reported below: 63 N.D. 622; 249 N.W. 726. No. 597. McKnett v. St. Louis & San Francisco Ry. Co. December 4, 1933. The motion for leave to proceed further herein in forma pauperis is granted. The petition for writ of certiorari to the Supreme Court of Alabama is also granted. Mr. Walter Brower for petitioner. Mr. Forney Johnston for respondent. Reported below: 149 So. 822. No. 358. Bosworth, Receiver, v. Continental Illinois Bank & Trust Co. December 4, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Messrs. Amos C. Miller, F. G. Await, George P. Barse, John F. Anderson, and George B. Springston for petitioner. Messrs. Isaac H. Mayer, Carl Mayer, and David F. Rosenthal for respondent. Reported below: 65 F. (2d) 632. No. 547. New Colonial Ice Co., Inc. v. Helvering, Commissioner of Internal Revenue. December 4, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Messrs. Edward G. Griffin and Joseph Sterling for petitioner. Solicitor General Biggs and Messrs. Sewall Key and John H. McEvers for respondent. Reported below: 66 F. (2d) 480. No. 565. Loughran v. Loughran et al. December 4, 1933. Petition for writ of certiorari to the Court of Appeals of the District of Columbia granted. Mr. Robert H. McNeill for petitioner. Messrs. Wm. E. Leahy, Wm. J. Hughes, Jr., Eugene B. Sullivan, and James F. Reilly for 622 OCTOBER TERM, 1933. Decisions Granting Certiorari. 290U.S. respondents. Reported below: 62 App.D.C. 262; 66 F. (2d) 567. No. 363. Arrow-Hart & Hegeman Electric Co. v. Federal Trade Comm’n. December 11, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Messrs. Charles Neave, Arthur F. Mullen, Arthur L. Shipman, Wallace W. Brown, and Charles Welles Gross for petitioner. Solicitor General Biggs, Assistant Attorney General Stephens, and Messrs. Wm. G. Davis and Robert E. Healy for respondent. Reported below: 65 F. (2d) 336. No. 561. International Milling Co. v. Columbia Transportation Co. December 11, 1933. Petition for writ of certiorari to the Supreme Court of Minnesota granted. Messrs. Oscar Mitchell and Albert C. Gillette for petitioner. Messrs. Edgar W. MacPherran, Thomas H. Garry, and Carl V. Essery for respondent. Reported below: 189 Minn. 507, 516; 250 N.W. 186, 190. No. 575. Gilvary v. Cuyahoga Valley Ry. Co. December 11, 1933. Petition for writ of certiorari to the Supreme Court of Ohio granted. Mr. Glen A. Boone for petitioner. Mr. W. T. Kinder for respondent. Reported below: 127 Ohio St. 402. No. 578. Aschenbrenner v. U.S. Fidelity & Guaranty Co. December 11, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Mr. Allen G. Wright for petitioner. Messrs. Edwin C. Brandenburg and Louis M. Denit for respondent. Reported below: 65 F. (2d) 976. OCTOBER TERM, 1933. 623 290 U.S. Decisions Granting Certiorari. No. 580. Olson v. United States; No. 581. Karlson v. Same; and No. 582. Brewster v. Same. December 11, 1933. Petitions for writs of certiorari to the Circuit Court of Appeals for the Eighth Circuit granted. Messrs. Harry H. Peterson, I. K. Lewis, C. E. Berkman, and John H. Hougen for petitioners. Solicitor General Biggs and Mr. Paul A. Sweeney for the United States. Reported below: 67 F. (2d) 24. No. 576. United States ex rel. Boric v. Marshall, District Director of Immigration. December 18, 1933. The petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit is granted. It is ordered that the original Department of Labor File, with the exhibits contained therein or attached thereto, offered in the deportation proceedings, which was presented to the Circuit Court of Appeals upon the appeal of this cause to that court, pursuant to the stipulation of the parties herein appearing in the record, and dated June 19, 1933, be certified to this Court for consideration on this writ of certiorari along with the usual transcript of record, as provided in Rule 10, paragraph 4, of the rules of this Court. Mr. Arthur I. Zeiger for petitioner. Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith for respondent. Reported below: 67 F. (2d) 1020. No. 106. Sanders v. Armour Fertilizer Works et al. December 18, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit granted. Mr. Thomas D. Gresham for petitioner. Messrs. Mark McMahon and Charles J. Faulkner, Jr., for respondents. Reported below: 63 F. (2d) 902. 624 290 U.S. OCTOBER TERM, 1933. Decisions Granting Certiorari. No. 579. Charles Ilfeld Co. v. Hernandez, Collector of Internal Revenue. December 18, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit granted. Mr. A. T. Hannett for petitioner. Solicitor General Biggs and Messrs. Sewall Key and Norman D. Keller for respondent. Reported below: 66 F. (2d) 236. No. 585. Pokora v. Wabash Ry. Co. December 18, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Mr. John Pokora, pro se. Mr. Walter McC. Allen for respondent. Reported below: 66 F. (2d) 166. No. 619. Radio Corporation of America et al. v. Radio Engineering Laboratories, Inc. January 8, 1934. The petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit is granted. The Chief Justice took no part in the consideration or decision of this application. Messrs. Samuel E. Darby, Jr., Thomas G. Haight, James R. Sheffield, and William R. Ballard for petitioners. No appearance for respondent. Reported below: 66 F. (2d) 768. No. 611. Electric Cable Joint Co. v. Brooklyn Edison Co., Inc. January 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Mr. D. Anthony Usina for petitioner. Messrs. Charles Neave and Jo hn D. Monroe for respondent. Reported below: 66 F. (2d) 739. No. 614. Larsen v. Northland Transportation Co. January 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Mr. Samuel B. Bassett for petitioner. Messrs. Cassius E. 625 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. Gates and Claude E. Wakefield for respondent. Reported below: 66 F. (2d) 651. DECISIONS DENYING CERTIORARI, FROM OCTOBER 2, 1933, TO AND INCLUDING JANUARY 8, 1934. No. 189. Hunt v. Texas. See ante, p. 586. No. 339. Miller et al. v. Board of County Commissioners et al. See ante, p. 586. No. 366. Diven, Executor, et al. v. Sibling. See ante, p. 587. No. 404. Aker v. Aker et al. See ante, p. 587. No. 104. Mestice v. Ohrbach’s Affiliated Stores, Inc. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit, and motion for leave to proceed further in forma pauperis, denied. Mr. Wm. R. Mestice, pro se. No appearance for respondent. Reported below: 63 F. (2d) 1010. No. 154. Spruill v. Rover; and No. 155. Same v. McMahon et al. October 9, 1933. Petition for writs of certiorari to the Court of Appeals of the District of Columbia, and motion for leave to proceed further in forma pauperis, denied. Georgia M. Spruill, pro se. No appearance for respondents. No. 198. Jackson v. Atlanta Goodwill Industries, Inc. October 9, 1933. Petition for writ of certiorari to 15459°—34-----40 626 OCTOBER TERM, 1933. Decisions Denying Certiorari. 290 U.S. the Court of Appeals of Georgia, and motion for leave to proceed further in forma pauperis, denied. Mr. Abraham Ziegler for petitioner. No appearance for respondent. Reported below: 46 Ga. App. 425; 167 S.E. 702. No. 288. Jackson et al. v. United States. October 9, 1933. Petition for writ of certiorari to the Court of Appeals of the District of Columbia, and motion for leave to proceed further in forma pauperis, denied. Mr. L. Melendez King for petitioners. No appearance for the United States. Reported below: 62 App.D.C. 250; 66 F. (2d) 280. No. 304. Threatt v. United States. October 9, 1933. Petition for writ of certiorari to the Court of Claims, and motion for leave to proceed further in forma pauperis, denied. Mr. David Threatt, pro se. No appearance for the United States. Reported below: 77 Ct. Cis. 645. No. 437. Miller v. Aderhold, Warden. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit, and motion for leave to proceed further in forma pauperis, denied. Mr. Joseph Miller, pro se. No appearance for respondent. Reported below: 64 F. (2d) 920. No. 479. Dunbar et al. v. United States. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit, and motion for leave to proceed further in forma pauperis, denied. Mr. Floyd Dunbar for petitioners. No appearance for the United States. Reported below: 65 F. (2d) 497. 627 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. No. 219. Busch et al. v. United States. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Husty v. United States, 282 U.S. 694, 702; Davis v. United States, 283 U.S. 859; Wilson v. United States, 287 U.S. 623. Mr. Leo. H. Klugherz for petitioners. Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith for the United States. Reported below: 64 F. (2d) 27. No. 269. Cleveland, Cincinnati, Chicago, & St. Louis Ry. Co. v. Henry, Administratrix. October 9, 1933. Petition for writ of certiorari to the Supreme Court of Missouri denied for the want of a final judgment. Bruce v. Tobin, 245 U.S. 18; Johnson v. Keith, 117 U.S. 199; Houston n. Moore, 3 Wheat. 433. Messrs. H. N. Quigley, S. W. Baxter, and W. D. Chapman for petitioner. Messrs. Wm. H. Allen and John S. Marsalek for respondent. Reported below: 332 Mo. 1072; 61 S.W. (2d) 340. No. 40. Globe Excelsior Oak Tanning Co. v. United States. October 9, 1933. Petition for writ of certiorari to the Court of Claims denied. Mr. Edward Martenet for petitioner. Solicitor General Biggs and Messrs. Paul D. Miller, Wm. W. Scott, H. Brian Holland, and Wm. H. Riley, Jr., for the United States. Reported below: 77 Ct. Cis. 32; 2 F.Supp.: 470. No. 42. Irving Trust Co., Trustee, v. B. & 0. Highway Transportation Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Irving L. Ernst for petitioner. No appearance for respondent. Reported below: 62 F. (2d) 763. 628 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. No. 43. Winchester Mfg. Co. v. United States. October 9, 1933. Petition for writ of certiorari to the Court of Claims denied. Messrs. Frank S. Bright and H. Stanley Hinrichs for petitioner. Solicitor General Biggs and Messrs. Wm. W. Scott and Paul D. Miller for the United States. Reported below: 75 Ct. Cis. 710. No. 45. Canal-Commercial Trust & Savings Bank v. Commissioner of Internal Revenue; and No. 46. Canal-Commercial National Bank v. Same. October 9, 1933. Petition for writs of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Henry P. Dart, Benjamin W. Dart, and Henry P. Dart, Jr., for petitioners. Solicitor General Biggs, Miss Helen R. Carloss, and Messrs. Sewall Key, Paul D. Miller, and Wm. H. Riley, Jr., for respondent. Reported below: 63 F. (2d) 619, 621. No. 47. Automobile Abstract & Title Co. v. Fitzgerald. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Jerry A. Mathews, David B. Tippery, and Allan P. Cox for petitioner. Messrs. Patrick H. O’Brien and Perry A. Maynard for respondent. Reported below: 77 Ct. Cis. 32; 2 F.Supp. 470. No. 48. American-West African Line, Inc., v. United States. October 9, 1933. Petition for writ of certiorari to the Court of Claims denied. Messrs. John W. Davis, George . A. King, Herman J. Galloway, and Elkan Turk for petitioner. Solicitor General Biggs and Messrs. Wm. W. Scott and H. Brian Holland for the United States. Reported below: 76 Ct. Cis. 235. 629 290 U5. OCTOBER TERM, 1933. Decisions Denying Certiorari. No. 49. Solow v. General Motors Truck Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Melville Ehrlick for petitioner. Messrs. John Thomas Smith and Anthony J. Russo for respondent. Reported below: 64 F. (2d) 105. No. 52. Hopkins v. Texas Co. October 9,1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Mr. Charles E. McPherren for petitioner. Messrs. Charles B. Cochran, Harry T. Klein, and John R. Ramsey for respondent. Reported below: 62 F. (2d) 691. No. 53. Romualdez v. Philippine Islands. October 9, 1933. Petition for writ of certiorari to the Supreme Court of the Philippine Islands denied. Mr. Paul J. Christian for petitioner. Messrs. William Cattron Rigby, Fred W. Lewellyn, and Kyle Rucker for respondent. No. 55. Bodine & Clark Livestock Comm’n Co. v. Great Northern Ry. Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Arthur M. Geary for petitioner. Messrs. Charles A. Hart and Fletcher Rockwood for respondent. Reported below: 63 F. (2d) 472. No. 57. John T. Clarke v. Chicago, B. & Q. R. Co. ET AL.; No. 58. Same v. Chicago, B. & Q. R. Co.; and No. 59. Ella R. Clarke et al. v. Same. October 9, 1933. Petition for writ of certiorari to the Circuit Court 630 290 US. OCTOBER TERM, 1933. Decisions Denying Certiorari. of Appeals for the Tenth Circuit denied. Messrs. Wm. J. Hughes, Jr., and James F. Reilly for petitioners. Messrs. J. C. James, J. Q. Dier, and Bruce Scott for respondents. Reported below: 62 F. (2d) 440. No. 60. Ingram, Trustee in Bankruptcy, v. Oregon. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Peter Q. Nyce for petitioner. Messrs. I. H. Van Winkle and Willis S. Moore for respondent. Reported below: 63 F. (2d) 417. No. 61. Zurich General Accident & Liability Ins. Co., Ltd. v. O’Keefe. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Ralph F. Potter and George A. Bangs for petitioner. Mr. C. J. Murphy for respondent. Reported below: 64 F. (2d) 768. No. 66. Life & Casualty Ins. Co. v. Florala et al. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. P. M. Estes and Moreau P. Estes for petitioner. Mr. Francis J. Mizell for respondents. Reported below: 63 F. (2d) 195. No. 67. Blum v. Davis, Trustee in Bankruptcy. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Max Isaac and Robert J. Blum for petitioner. Mr. Walter T. Kinder for respondent. Reported below: 63 F. (2d) 212. OCTOBER TERM, 1933. 631 290U.S. Decisions Denying Certiorari. No. 68. Bryant Paper Co. v. Holden, Executrix. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. William P. Smith and Oscar E. Waer for petitioner. Solicitor General Biggs and Messrs. Sewall Key, John G. Remey, Paul D. Miller, and Erwin N. Griswold for respondent. Reported below: 63 F. (2d) 370; 65 id. 1012. No. 73. Wabash Ry. Co. v. Conroy. October 9, 1933. Petition for writ of certiorari to the Appellate Court, First District, of Illinois, denied. Mr. William Sherman Hay for petitioner. Mr. Charles C. Spencer for respond-• ent. Reported below: 268 Ill. App. 614. No. 74. First National Bank et al. v. Gildart, Tax Collector. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Percy Bell and W. A. Percy for petitioners. Mr. J. A. Lauderdale for respondent. Reported below: 64 F. (2d) 873. No. 81. Chicago, M., St. P. & P. R. Co. v. Tate. October 9,1933. Petition for writ of certiorari to the Supreme Court of Washington denied. Messrs. F. M. Dudley and C. S. Jefferson for petitioner. Mr. John P. Hannon for respondent. Reported below: 172 Wash. 33; 19 P. (2d) 137. No. 82. Greenawalt v. Stearns-Roger Mfg. Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Messrs. George L. Nye, Martin A. Schenck, and Kenneth 632 OCTOBER TERM, 1933. Decisions Denying Certiorari, 290U.S. W. Greenawalt for petitioner. Mr. Barney L. Whatley for respondent. Reported below: 62 F. (2d) 1033. No. 83. Fugate v. Toledo, Peoria & Western R. Co. October 9, 1933. Petition for writ of certiorari to the Appellate Court, First District, of Illinois, denied. Mr. Lambert Kaspers for petitioner. Messrs. Silas H. Strawn and John M. Elliott for respondent. Reported below: 268 Ill. App. 613. No. 85. Standard Oil Co. v. United States. October 9, 1933. Petition for writ of certiorari to the Court of Claims denied. Mr. James H. Hayes for petitioner. So- . licitor General Biggs and Mr. Wm. W. Scott for the United States. Reported below: 77 Ct. Cis. 205; 2 F.Supp. 922. No. 86. Southern Ry. Co. et al. v. Barton, Administratrix. October 9, 1933. Petition for writ of certiorari to the Supreme Court of South Carolina denied. Messrs. Sidney S. Aiderman, H. O’B. Cooper, Frank G. Tompkins, and £ R. Prince for petitioners. Mr. H. J. Haynsworth for respondent. Reported below: 171 S.C. 46; 171 S.E. 5. No. 87. Clark’s Ferry Bridge Co. v. Public Service Comm’n. October 9, 1933. Petition for writ of certiorari to the Superior Court of Pennsylvania denied. Mr. George Ross Hull for petitioner. Messrs. E. Everett Mather, Jr., and John Fox Weiss for respondent. Reported below: 108 Pa. Super. Ct. 49. No. 90. U.S. ex rel. Arcata & Mad River R. Co. v. Interstate Commerce Comm’n. October 9, 1933. Peti- 633 290 US. OCTOBER TERM, 1933. Decisions Denying Certiorari. tion for writ of certiorari to the Court of Appeals of the District of Columbia denied. Messrs. Charles D. Drayton and Robert E. Quirk for petitioner. Messrs. H. L. Underwood and Daniel W. Knowlton for respondent. Reported below: 62 App.D.C. 92; 65 F. (2d) 180. No. 91. Home Insurance Co. v. Sullivan Machinery Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Mr. F. A. Rittenhouse for petitioner. Messrs. P. C. Simons, L. E. McKnight, and R. W. Simons for respondent. Reported below: 64 F. (2d) 765. No. 92. Columbia Casualty Co. v. Tipma. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Dudley Morton Shively for petitioner. Mr. Andrew J. Hickey for respondent. Reported below: 63 F. (2d) 538. No. 93. Sears, Roebuck & Co. v. United States. October 9, 1933. Petition for writ of certiorari to the Court of Customs and Patent Appeals denied. Mr. James R. Ryan for petitioner. Solicitor General Biggs and As-sistant Attorney General Lawrence for the United States. Reported below: 20 C.C.P.A. (Cust.) 295; T.D. 46086. No. 96. Gloyd v. Commissioner of Internal Revenue. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. George E. H. Goodner for petitioner. Solicitor General Biggs, Miss Helen R. Carloss, and Mr. Sewall Key for respondent. Reported below: 63 F. (2d) 649. 634 OCTOBER TERM, 1933. Decisions Denying Certiorari. 290 U.S. No. 97. New York Central R. Co. v. Brown. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. John J. Danhof for petitioner. No appearance for respondent. Reported below: 63 F. (2d) 657. No. 98. Ed S. Michelson, Inc. v. Nebraska Tire & Rubber Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. I. J. Ringolsky and Harry L. Jacobs for petitioner. Mr. Cyrus Crane for respondent. Reported below: 63 F. (2d) 597. No. 99. Missouri Pacific R. Co. v. Chicago Great Western R. Co. October 9, 1933. Petition for writ of certiorari to the Supreme Court of Kansas denied. Messrs. W. P. Waggener, J. M. Challiss, and B. P. Wag-gener for petitioner. Messrs. Ralph M. Shaw, Walter H. Jacobs, and A. L. Berger for respondent. Reported below: 137 Kan. 217; 19 P. (2d) 484. No. 100. Birmingham Belt R. Co. v. Bennett, Administratrix. October 9, 1933. Petition for writ of certiorari to the Supreme Court of Alabama denied. Mr. Forney Johnston for petitioner. Mr. Hugo L. Black for respondent. Reported below: 226 Ala. 185; 146 So. 265. No. 102. Penick & Ford, Ltd., Inc. v. Corn Products Rfg. Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. John H. Lee, Russell Wiles, and Horace Dawson for petitioner. Messrs. Melville Church and Per- OCTOBER TERM, 1933. 635 290U.S. Decisions Denying Certiorari. cival H. Truman for respondent. Reported below: 63 F. (2d) 26. No. 105. Munson Steamship Line v. Bergen Lloyd; and No. 202. Bergen Lloyd v. Munson Steamship Line. October 9, 1933. Petition for writs of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Irving L. Evans and John Tilney Carpenter for Munson Steamship Line. Mr. John W. Griffin for Bergen Lloyd. Reported below: 64 F. (2d) 502. No. 107. Eli et al. v. Carter Oil Co. et al. October 9, 1933. Petition for writ of certiorari to the Supreme Court of Oklahoma denied. Messrs. D. Haden Linebaugh, John B. Dudley, Paul C. Williams, and Paul Pinson for petitioners. Messrs. James A. Veasey and Lloyd G. Owen for respondents. Reported below: 164 Okla. 273, 302; 23 P. (2d) 985. No. 108. United Business Corp. v. Commissioner of Internal Revenue. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. F. S. Bright and H. Stanley Hinrichs for petitioner. Solicitor General Biggs for respondent. Reported below: 62 F. (2d) 754. No. 109. Whitaker v. United States. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Norman T. Whitaker, pro se. Solicitor General Biggs and Messrs. Frank M. Parrish and Harry S. Ridgely for the United States. Reported below: 63 F. (2d) 1021. 636 290 US. OCTOBER TERM, 1933. Decisions Denying Certiorari. No. 110. Spinks Realty Co. v. Commissioner of Internal Revenue. October 9, 1933. Petition for writ of certiorari to the Court of Appeals of the District of Columbia denied. Mr. Frederick L. Pearce for petitioner. Solicitor General Biggs and Messrs. Sewall Key, Francis H. Horan, and Erwin N. Griswold for respondent. Reported below: 61 App.D.C. 321; 62 F. (2d) 860. No. 111. Chicago, Rock Island & Pacific Ry. Co. v. Benson. October 9, 1933. Petition for writ of certiorari to the Supreme Court of Illinois denied. Messrs. Frank T. Miller, Marcus L. Bell, W. F. Dickinson, and Daniel Taylor for petitioner. Mr. John E. Cassidy for respondent. Reported below: 252 Ill. 195; 185 N.E. 244. No. 113. Kip et al. v. New York Central R. Co. et al. October 9, 1933. Petition for writ of certiorari to the Supreme Court of New York denied. Mr. Ernest A. Bigelow for petitioners. Mr. Jacob Aronson for respondents. Reported below: 236 App. Div. 654, 257 N.Y.S. 919; 260 N.Y. 692, 184 N.E. 148. No. 115. Kline v. Blackwell et al. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. James M. Carson for petitioner. Mr. A. Frank Katzentine for respondents. Reported below: 63 F. (2d) 897. No. 116. Quanah, Acme & Pacific Ry. Co. v. Gray. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. A. H. Carrigan for petitioner. No appearance for respondent. Reported below: 63 F. (2d) 410. 637 290 UK OCTOBER TERM, 1933. Decisions Denying Certiorari. No. 118. Coalinga-Mohawk Oil Co. v. Commissioner of Internal Revenue. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Joseph C. Mey er stein for petitioner. Solicitor General Biggs and Messrs. Sewall Key, J. Louis Monarch, and Walter L. Barlow for respondent. Reported below: 64 F. (2d) 262. No. 119. McGovern v. Hitt et al. October 9, 1933. Petition for writ of certiorari to the Court of Appeals of the District of Columbia denied. Mr. P. Michael Cook for petitioner. Messrs. Walter C. Clephane, J. Wilmer Latimer, Gilbert L. Hall, and Clarence A. Miller for respondents. Reported below: 62 App.D.C. 156; 64 F. (2d) 156. No. 120. Kelley et al. v. New York City et al. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Martin Conboy for petitioners. Messrs. Charles Neave and Arthur J. W. Hilly for respondents. Reported below: 63 F. (2d) 1007. No. 121. Employers’ Liability Assurance Corp., Ltd. v. Kerper et al. October 9, 1933. Petition for writ of certiorari to the Court of Appeals of the District of Columbia denied. Mr. Frank H. Myers for petitioner. Mr. John P. Bramhall for respondents. Reported below: 62 App.D.C. 77; 64 F. (2d) 715. No. 122. Earlston Coal Co. v. Huntington National Bank. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth 638 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. Circuit denied. Messrs. Wells Goodykoontz and Adna R. Johnson, Jr., for petitioner. Mr. Francis J. Wright for respondent. Reported below: 63 F. (2d) 329. No. 125. Tillman & Bendel, Inc. v. California Packing Corp.; and No. 201. California Packing Corp. v. Tillman & Bendel, Inc. October 9, 1933. Petitions for writs of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Herman Phleger, Maurice E. Harrison, and Wm. 8. Graham for Tillman & Bendel, Inc. Messrs. Frank D. Madison and Eugene M. Prince for California Packing Corp. Reported below: 63 F. (2d) 498. No. 127. Levi v. Murrell et al. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Milton K. Young, Lyndol L. Young, and William K. Young for petitioner. Messrs. Wesley L. Nutten, Jr., and Arthur J. Edwards for respondents. Reported below: 63 F. (2d) 670. No. 132. National Surety Co. v. Garretson et al. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Bernard J. Gallagher and Joseph H. Bilbrey for petitioner. No appearance for respondents. Reported below: 63 F. (2d) 847. No. 233. Frederick T. Fleitmann v. Helvering, Commissioner of Internal Revenue; and Nos. 234 and 235. Marie J. J. Fleitmann et al. v. Same. October 9, 1933. Petitions for writs of certiorari 639 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. to the Court of Appeals of the District of Columbia denied. Mr. Donald Horne for Frederick T. Fleitmann. Mr. Frederick S. Winston for Marie J. J. Fleitmann et al. Solicitor General Biggs and Messrs. Sewall Key and Morton K. Rothschild for respondent. Reported below: 62 App.D.C. 90, 91, 88; 65 F. (2d) 178, 179, 176. No. 134. Taylor et al. v. U. S. Casualty Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. W. Turner Logan for petitioners. Messrs. F. H. Horlbeck and Julian Mitchell, Jr., for respondent. Reported below: 64 F. (2d) 521. No. 136. Lee v. Maryland. October 9, 1933. Petition for writ of certiorari to the Court of Appeals of Maryland denied. Mr. Carol Weiss King for petitioner. Mr. Wm. Preston Lane, Jr., for respondent. Reported below: 164 Md. 550; 165 Atl. 614. No. 137. Atlantic Coast Line R. Co. v. Primus, Administratrix. October 9, 1933. Petition for writ of certiorari to the Supreme Court of South Carolina denied. Messrs. Thomas W. Davis and Douglas McKay for petitioner. Mr. D. W. Robinson for respondent. Reported below: 171 S.C. 199; 171 S.E. 1. No. 151. Western Knitting Mills et al. v. United States. October 9, 1933. Petition for writ of certiorari to the Court of Claims denied. Mr. Emil C. Wetten for petitioners. Solicitor General Biggs and Assistant Attorney General Wideman for the United States. Reported below: 76 Ct. Cis. 578; 2 F.Supp. 119. 640 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. No. 156. Southern Shipyard Corp. v. United States. October 9, 1933. Petition for writ of certiorari to the Court of Claims denied. Messrs Louis Titus, Frank Healy, and Charles L. Frailey for petitioner. Solicitor General Biggs and Assistant Attorney General Wideman for the United States. Reported below: 76 Ct. Cis. 468. No. 159. United States v. Pitt. October 9, 1933. Petition for writ of certiorari to the Court of Claims denied. Solicitor General Biggs, Assistant Attorney General Wideman, and Mr. H. Brian Holland for the United States. Messrs. George A. King, George R. Shields, and Herman J. Galloway for respondent. Reported below: 77 Ct. Cis. 275. No. 160. F. T. Dooley Lumber Co. v. United States. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. F. E. Hagler for petitioner. Solicitor General Biggs and Messrs. Sewall Key, Hayner N. Larson, and Erwin N. Griswold for the United States. Reported below: 63 F. (2d) 384. No. 164. Long et al. v. Stites et al. ; and No. 165. Deering et al. v. Same. October 9, 1933. Petition for writs of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Greenberry Simmons and Horace M. Barker for petitioners. Mr. Allen P. Dodds for respondents. Reported below: 63 F. (2d) 855. No. 167. Whitaker et al. v. Alameda County Home Investment Co. October 9, 1933. Petition for writ of 641 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. certiorari to the Supreme Court of California denied. Mr. Henry C. McPike for petitioners. Mr. Edmund L. Jones for respondent. Reported below: 217 Cal. 231; 18 P. (2d) 662. No. 169. Fawsett v. Commissioner of Internal Revenue. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Richard S. Doyle and Charles F. Fawsett for petitioner. Solicitor General Biggs and Messrs. Sewall Key and John MacC. Hudson for respondent. Reported below: 63 F. (2d) 445. No. 170. United Order of Good Samaritans v. Bryant. October 9, 1933. Petition for writ of certiorari to the Supreme Court of Arkansas denied. Mr. W. A. Booker for petitioner. No appearance for respondent. Reported below: 186 Ark. 960; 57 S.W. (2d) 399. No. 174. Routzahn, Collector of Internal Revenue, v. Brown, Executor. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Solicitor General Biggs for petitioner. Mr. Horace Andrews for respondent. Reported below: 63 F. (2d) 914. No. 175. Kosmos Portland Cement Co. v. Johnson, Administrator, et al. ; and No. 176. Same v. Sauer, Executrix. October 9, 1933. Petition for writs of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Charles G. Middleton and Louis Seelbach for petitioner. Messrs. 15459°—34------41 642 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. Harris W. Coleman and Edmund F. Trabue for respondents. Reported below: 64 F. (2d) 193. No. 177. Freedman v. United States. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. David A. Buckley, Jr., for petitioner. Solicitor General Biggs, Assistant Attorney General Stephens, and Mr. Elmer B. Collins for the United States. Reported below: 64 F. (2d) 661. No. 179. Muscarelle et al. v. United States. October 9,1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Thomas L. Newton for petitioners. Solicitor General Biggs and Messrs. Mahlon D. Kiefer and W. Marvin Smith for the United States. Reported below: 63 F. (2d) 806. No. 180. Conoscente et al. v. United States. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Thomas L. Newton for petitioners. Solicitor General Biggs and Messrs. Mahlon D. Kiefer and W. Marvin Smith for the United States. Reported below: 63 F. (2d) 811. No. 181. Clark, Administratrix, et al. v. Moffett et al. October 9, 1933. Petition for writ of certiorari to the Supreme Court of Kansas denied. Mr. Martin J. O’Donnell for petitioners. Messrs. Louis R. Gates, B. C. Howard, John B. Pew, and George S. Evans for respondents. Reported below: 136 Kan. 711; 18 P. (2d) 555. OCTOBER TERM, 1933. 643 290 U.S. Decisions Denying Certiorari. No. 182. Paxson v. Willie A. Davis; and No. 183. Same v. James B. Davis. October 9, 1933. Petition for writs of certiorari to the Court of Appeals of the District of Columbia denied. Mr. Samuel W. Mc-Cart for petitioner. Mr. Martin J. McNamara for respondents. Reported below: 62 App.D.C. 146; 65 F. (2d) 492. No. 185. Mayne et al v. St. Louis Union Trust Co., et al., Executors. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Samuel W. Fordyce and Thomas W. White for petitioners. Solicitor General Biggs and Messrs. Sewall Key, Hayner N. Larson, Thos. S. Mc-Pheeters, Henry Davis, and Harold R. Small for respondents. Reported below: 64 F. (2d) 843. No. 186. Brill, Receiver, v. W. B. Foshay Co. et al. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Josiah E. Brill and Mortimer H. Boutelle for petitioner. Messrs. Clark R. Fletcher and C. J. Rockwood for respondents. Reported below: 65 F. (2d) 420. No. 188. Pacific Atlantic Steamship Co. v. Moore-mack Gulf Lines, Inc. et al. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Willard U. Taylor for petitioner. Messrs. D. Roger Englar, Leonard J. Matteson, and Howard M. Long for respondents. Reported below: 63 F. (2d) 798. No. 190. Pennsylvania R. Co. v. Deptula. October 9, 1933. Petition for writ of certiorari to the Court of 644 OCTOBER TERM, 1933. Decisions Denying Certiorari. 290 U.S. Errors and Appeals of New Jersey denied. Messrs. Frederic D. McKenney, John A. Hartpence, John Spalding Flannery, and G. Bowdoin Craighill for petitioner. Mr. Clement K. Corbin for respondent. Reported below: 110 N.J.L. 515; 166 Atl. 87. No. 191. Corwin, Collector of Internal Revenue, v. George Gliss Lane; and No. 192. Same v. James W. Lane, Jr. October 9, 1933. Petitions for writs of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Solicitor General Biggs for petitioner. Mr. Frederic R. Kellogg for respondents. Reported below: 63 F. (2d) 767. No. 193. Mulqueen, Executrix, v. Commissioner of Internal Revenue. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Clarence Castimore for petitioner. Solicitor General Biggs and Messrs. Sewall Key, John G. Remey, and Erwin N. Griswold for respondent. Reported below: 65 F. (2d) 365. No. 195. McGreevy et al. v. National Surety Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Cyrus Crane for petitioners. Mr. Henry L. Jost for respondent. Reported below: 64 F. (2d) 899. No. 197. Kasch et al. v. Commissioner of Internal Revenue. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. George E. Shelley for petitioners. Solicitor OCTOBER TERM, 1933. 645 290U.S. Decisions Denying Certiorari. General Biggs and Messrs. Sewall Key and Norman D. Keller for respondent. Reported below: 63 F. (2d) 466. No. 199. Corning Glass Works v. Robertson, Commissioner of Patents. October 9, 1933. Petition for writ of certiorari to the Court of Appeals of the District of Columbia denied. Messrs. Edward S. Rogers, Vernon M. Dorsey, and Wm. R. Green, Jr., for petitioner. Solicitor General Biggs and Messrs. Paul D. Miller and T. A. Hostetler for respondent. Reported below: 62 App.D.C. 130; 65 F. (2d) 476. No. 204. McGuire et al. v. United States; and No. 265. Mann v. Same. October 9, 1933. Petitions for writs of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Basil O’Connor, Max D. Steuer, and Samuel B. Pettengill for petitioners in No. 204. Mr. Martin Conboy for petitioner in No. 265. Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith for the United States. Reported below: 64 F. (2d) 485. No. 205. Southern Railway-Carolina Division v. Lytle, Administrator. October 9, 1933. Petition for writ of certiorari to the Supreme Court of South Carolina denied. Messrs. Sidney S. Aiderman, H. O’B. Cooper, Frank G. Tompkins, J. E. McDonald, and 8. R. Prince for petitioner. Mr. Irvine F. Belser for respondent. Reported below: 171 S.C. 221; 171 S.E. 42. No. 206. Midland Finance Corp. v. Busch. October 9, 1933. Petition for writ of certiorari to the Circuit 646 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. Court of Appeals for the Eighth Circuit denied. Messrs. Floyd E. Jacobs and M. J. Henderson for petitioner. Messrs. John T. Harding and David A. Murphy for respondent. Reported below: 64 F. (2d) 859. No. 207. Meredith Publishing Co. v. Commissioner of Internal Revenue. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Denis M. Kelleher and F. W. McReynolds for petitioner. Solicitor General Biggs and Messrs. Sewall Key and Andrew D. Sharpe for respondent. Reported below: 64 F. (2d) 890. No. 209. Martin v. United States. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. James T. Crouch for petitioner. Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith for the United States. No. 210. Claiborne-Reno Co. v. E. I. DuPont De Nemours & Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. H. S. Hunn for petitioner. Mr. John N. Hughes for respondent. Reported below: 64 F. (2d) 224. No. 213. Friedberg et al. v. United States. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. John W. Dodge for petitioners. Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith for the United States. Reported below: 63 F. (2d) 1003. OCTOBER TERM, 1933. 647 290U.S. Decisions Denying Certiorari. No. 214. Baltimore & Ohio R. Co. et al. v. Domestic Hardwoods, Inc., et al. October 9, 1933. Petition for writ of certiorari to the Court of Appeals of the District of Columbia denied. Messrs. Charles Clark and John J. Hamilton for petitioners. Mr. Harry S. Elkins for respondents. Reported below: 62 App.D.C. 142; 65 F. (2d) 488. No. 215. Simmons et al. v. Fidelity National Bank & Trust Co. et al. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Henry S. Conrad for petitioners. Messrs. Justin D. Bower sock and Paul R. Stinson for respondents. Reported below: 64 F. (2d) 602. No. 216. South Carolina Asparagus Growers Assn. v. Southern Ry. Co. et al. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Karl Knox Gartner for petitioner. Messrs. Charles Clark and Nath. B. Barnwell for respondents. Reported below: 64 F. (2d) 419. No. 217. Radio-Keith-Orpheum Corp, et al. v. Cullman, Receiver, et al. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Frederick H. Wood and William D. Whitney for petitioners. Mr. Joseph M. Proskauer for respondents. Reported below: 65 F. (2d) 324. No. 218. New York Central R. Co. v. Modica. October 9, 1933. Petition for writ of certiorari to the Supreme Court of New York denied. Messrs. Clive C. Handy and Jacob Aronson for petitioner. Mr. J. George 648 290 US. OCTOBER TERM, 1933. Decisions Denying Certiorari. Silberstein for respondent. Reported below: 237 App. Div. 851; 261 N.Y.S. 928. No. 220. Weatherford, Crump & Co. v. Bass, Collector of Internal Revenue. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Chester A. Bennett and Frank G. Gladney for petitioner. Solicitor General Biggs and Messrs. Sewall Key and John G. Remey for respondent. Reported below: 63 F. (2d) 465. No. 221. Chemische Fabrik Von Heyden et al. v. Tait, Collector of Internal Revenue. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. Adrian C. Humphreys and Newton K. Fox for petitioners. Solicitor General Biggs and Messrs. Erwin N. Griswold, Sewall Key, and Andrew D. Sharpe for respondent. Reported below: 64 F. (2d) 295. No. 223. First National Bank & Trust Co. v. Stock Yards Loan Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Henry S. Conrad, W. F. Wilson, and Robert E. Owens for petitioner. Mr. H. L. McCune for respondent. Reported below: 65 F. (2d) 226. No. 226. United States v. Consolidation Coal Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Solicitor General Biggs for the United States. No appearance for respondent. Reported below: 63 F. (2d) 42. OCTOBER TERM, 1933. 649 290U.S. Decisions Denying Certiorari. No. 230. Gillette Safety Razor Co. v. Standard Safety Razor Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. George P. Dike and Charles Neave for petitioner. Mr. George E. Middleton for respondent. Reported below: 64 F. (2d) 6, 9. No. 272. Gillette Safety Razor Co. v. Hawley Hardware Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. George P. Dike and Charles Neave for petitioner. Messrs. John C. Kerr and Thomas J. Byrne for respondent. Reported below: 64 F. (2d) 10. No. 273. Gillette Safety Razor Co. v. Standard Safety Razor Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. George P. Dike and Charles Neave for petitioner. Mr. George E. Middleton for respondent. Reported below: 64 F. (2d) 6, 9. No. 231. Bank of California v. International Mercantile Marine Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Hugh S. Williamson, Sumner Ford, and Edward A. Craighill, Jr., for petitioner. Mr. Chauncey I. Clark for respondent. Reported below: 64. F. (2d) 97. No. 232. Bank of California v. International Mercantile Marine Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Hugh S. Williamson, 650 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. Sumner Ford, and Edward A. Craighill, Jr., for petitioner. Mr. Chauncey I. Clark for respondent. Reported below: 64 F. (2d) 100. No. 264. M. & T. Trust Co. v. Export Steamship Corp. October 9, 1933. Petition for writ of certiorari to the Supreme Court of New York denied. Messrs. EUis H. Gidley and Ray M. Stanley for petitioner. Mr. Lyman M. Bass for respondent. Reported below: 143 Mise. 1, 256 N.Y.S. 590; 236 App. Div. 415, 259 N.Y.S. 393; 262 N.Y. 92, 186 N.E. 214. No. 236. Southern Cities Distributing Co. v. Texarkana et al. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. William H. Arnold, William H. Arnold, Jr., and David C. Arnold for petitioner. Messrs. Benjamin E. Carter and Willis B. Smith for respondents. Reported below: 64 F. (2d) 944. No. 237. Lidstrom,, Administrator, v. Spongberg, Administrator. October 9, 1933. Petition for writ of certiorari to the Supreme Court of Minnesota denied. Mr. Michael B. Hurley for petitioner. Mr. Samuel A. Anderson for respondent. Reported below: 187 Minn. 650; 245 N.W. 636, 247 id. 679. No. 238. Bourne v. Commissioner of Internal Revenue. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Louis M. Bourne, pro se. Solicitor General Biggs, Mr. Sewall Key, and Miss Helen R. Carloss for respondent. Reported below: 62 F. (2d) 648. OCTOBER TERM, 1933. 651 290U.S. Decisions Denying Certiorari. No. 242. Luse v. United States. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Herman L. Arterberry and Will R. King for petitioner. Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith for the United States. Reported below: 64 F. (2d) 776. No. 243. Gist et al. v. New York Life Ins. Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. John Stewart Ross for petitioners. Mr. Edwin A. Meserve for respondent. Reported below: 63 F. (2d) 732. No. 244. Philadelphia Storage Battery Co. v. Kelly-How-Thomson Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Byron G. Carson for petitioner. Mr. Oscar Mitchell for respondent. Reported below: 64 F. (2d) 834. Nos. 245 and 246. Walker v. Commissioner of Internal Revenue; and Nos. 247 and 248. Goldstein v. Same. October 9, 1933. Petitions for writs of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Elias Goldstein and & L. Herold for petitioners. Solicitor General Biggs and Messrs. Erwin N. Griswold, Sewall Key, and Francis H. Horan for respondent. Reported below: 65 F. (2d) 97. Nos. 249 and 250. Johnson et al. v. United States. October 9, 1933. Petitions for writs of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. 652 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. Mr. H. A. Ledbetter for petitioners. Solicitor General Biggs and Messrs. Erwin N. Griswold, Aubrey Lawrence, and E. T. Burke for the United States. Reported below: 64 F. (2d) 674. No. 251. Fidelity Savings & Loan Assn. v. Burnet, Commissioner of Internal Revenue. October 9, 1933. Petition for writ of certiorari to the Court of Appeals of the District of Columbia denied. Messrs. W. H. Orrick and T. W. Dahlquist for petitioner. Solicitor General Biggs and Messrs. Sewall Key and John H. McEvers for respondent. Reported below: 62 App.D.C. 131; 65 F. (2d) 477. No. 252. Burnet, Commissioner of Internal Revenue, v. Hutchinson Coal Co. October 9,1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Solicitor General Biggs and Messrs. Sewall Key and Andrew D. Sharpe for petitioner. No appearance for respondent. Reported below: 64 F. (2d) 275. No. 253. Comar Oil Co. v. Burnet, Commissioner of Internal Revenue. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Truman Post Young for petitioner. Solicitor General Biggs, Mr. Sewall Key, and Miss Helen R. Carloss for respondent. Reported below: 64 F. (2d) 965. No. 254. First National Bank v. United States. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. J. Robert Sherrod for petitioner. Solicitor General OCTOBER TERM, 1933. 653 290 U.S. Decisions Denying Certiorari. Biggs and Messrs. Sewall Key and J. P. Jackson for the United States. Reported below: 65 F. (2d) 536. Nos. 255 and 256. Galbraith et al. v. Bay Trust Co., Trustee. October 9, 1933. Petitions for writs of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. John E. Kinnane for petitioners. Mr. Edward S. Clark for respondent. Reported below: 64 F. (2d) 389. No. 258. Tropic-Aire, Inc. v. Wildermuth. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Amasa C. Paul, George I. Haight, William H. Davis, and Maurice M. Moore for petitioner. Mr. Drury W. Cooper for respondent. Reported below: 64 F. (2d) 342. No. 259. Surprise, Trustee, v. First Trust & Savings Bank et al. October 9, 1933. Petition for writ of certiorari to the Appellate Court of Indiana denied. Mr. C. B. Tinkham for petitioner. Mr. L. L. Bomberger for respondents. Reported below: 96 Ind. App. 66; 180 N.E. 926. No. 261. Foshay Trust & Savings Bank v. Public Utilities Consolidated Corp. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. C. J. Rockwood and John P. Dalzell for petitioner. Mr. Clark R. Fletcher for respondent. Reported below: 64 F. (2d) 665. No. 262. Seas Shipping Co., Inc. v. Approximately 3,251,000 Feet of Lumber et al. October 9, 1933. Pe- 654 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. tition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Frank V. Bams for petitioner. Mr. George DeForest Lord for respondents. Reported below: 65 F. (2d) 376. No. 263. Oil Transfer Corp, et al. v. C. F. Harms Co., Inc., et al. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Chauncey I. Clark and A. Howard Neely for petitioners. Messrs. W. H. McGrann and Anthony V. Lynch, Jr., for respondents. Reported below: 64 F. (2d) 340; No. 266. Mosheik v. United States. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Alfred E. Roth for petitioner. Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith for the United States. Reported below: 63 F. (2d) 533. No. 267. Barlett Frazier Co. et al. v. Wallace, Secretary of Agriculture, et al. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Frederic Ullmann and E. R. Morrison for petitioners. Solicitor General Biggs and Assistant Attorney General Stephens for respondents. Reported below: 65 F. (2d) 350. No. 270. Louisville & Nashville R. Co. et al. v. Bumpass. October 9, 1933. Petition for writ of certiorari to the Supreme Court of Tennessee denied. Messrs. Edward T. Seay and H. J. Livingston for petitioners. Mr. Scott FitzHugh for respondent. OCTOBER TERM, 1933. 655 290U.S. Decisions Denying Certiorari. No. 271. Nabong v. Philippine Islands. October 9, 1933. Petition for writ of certiorari to the Supreme Court of the Philippine Islands denied. Mr. Ignacio Nabong, pro se. Messrs. Kyle Rucker, William Cattron Rigby, and Fred W. Llewellyn for respondent. No. 275. Texas Electric Service Co. v. Fairbanks, Morse & Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Charles L. Black, Joe A. Worsham, and Ireland Graves for petitioner. Mr. Allen Wight for respondent. Reported below: 63 F. (2d) 702. No. 276. Bedford Mills, Inc. v. United States. October 9, 1933. Petition for writ of certiorari to the Court of Claims denied. Messrs. C. D. Williams and John F. Hughes for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Mr. H. Brian Holland for the United States. Reported below: 75 Ct. Cis. 412, 77 id. 190; 59 F. (2d) 263, 2 F.Supp. 769. No. 277. Harjim, Inc., et al. v. Owens et al. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Robert L. Shipp for petitioners. Mr. Manley P. Caldwell for respondents. Reported below: 64 F. (2d) 306. No. 278. Mobile & Ohio R. Co. et al. v. Williams, Administratrix. October 9, 1933. Petition for writ of certiorari to the Supreme Court of Alabama denied. Mr. Carl Fox for petitioners. Mr. Harry T. Smith for respondent. Reported below: 226 Ala. 541; 147 So. 819. See also 224 Ala. 125; 139 So. 337. 656 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. No. 279. Shoemaker, Trustee, v. Newman et al., Trustees. October 9, 1933. Petition for writ of certiorari to the Court of Appeals of the District of Columbia denied. Messrs. Stanton C. Peelle, Walter B. Guy, and Ralph D. Quinter for petitioner. Messrs. Wilton J. Lambert, John Spalding Flannery, R. H. Yeatman, and George D. Horning, Jr., for respondents. Reported below: 62 App.D.C. 120; 65 F. (2d) 208. No. 281. Missouri Pacific R. Corp. v. Nebraska State Ry. Comm’n et al. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. E. J. White and J. A. C. Kennedy for petitioner. Mr. Paul F. Good for respondents. Reported below: 65 F. (2d) 557. No. 282. Burnet, Commissioner of Internal Revenue, v. Pringle; and No. 283. Same v. Brunson. October 9, 1933. Petitions for writs of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Solicitor General Biggs for petitioner. Messrs. Ward Loveless and Joseph D. Peeler for respondents. Reported below: 64 F. (2d) 863. No. 284. Moran Towing & Transportation Co., Inc. v. Robins Dry Dock & Repair Co. et al. October 9, 1933. Petition for writ of certiorari to the Court of Appeals of New York denied. Messrs. Horace L. Chey-ney and James M. Gorman for petitioner. Messrs. E. Curtis Rouse, Harold Harper, and Homer L. Loomis for respondents. Reported below: 235 App. Div. 841, 257 N.Y.S. 908; 261 N.Y. 455, 185 N.E. 698. 657 290U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. No. 285. Moran Towing & Transportation Co., Inc. v. Robins Dry Dock & Repair Co. et al. October 9, 1933. Petition for writ of certiorari to the Supreme Court of New York denied. Messrs. Horace L. Cheyney and James M. Gorman for petitioner. Messrs. E. Curtis Rouse, Harold Harper, and Homer L. Loomis for respondents. Reported below: 261 N.Y. 455; 262 id. 521. See also 235 App. Div. 841. No. 286. Klinge v. Southern Pacific Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Mr. Lindsay R. Rogers for petitioner. Messrs. Emmett M. Bag-ley, Paul H. Ray, and Guy V. Shoup for respondent. Reported below: 65 F. (2d) 85. No. 287. Wiggins v. United States. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. George W. Nilsson and Morgan J. Doyle for petitioner. Solicitor General Biggs and Messrs. Erwin N. Griswold and John H. McEvers for the United States. Reported below: 64 F. (2d) 950. No. 289. Gans Steamship Line v. United States. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Jacob S. Seidman for petitioner. Solicitor General Biggs and Messrs. Sewall Key and John MacC. Hudson for the United States. Reported below: 65 F. (2d) 1016. No. 291. London & Lancashire Indemnity Co. v. Stefus et al. October 9, 1933. Petition for writ of cer-15459°—34-----42 658 OCTOBER TERM, 1933. Decisions Denying Certiorari. 290TJ.S. tiorari to the Supreme Court of New Jersey denied. Mr. George S. Hobart for petitioner. Mr. Jerry A. Mathews for respondents. Reported below: 111 N.J.L. 6. No. 292. Glogora Coal Co. v. Chesapeake & Ohio Ry. Co. October 9, 1933. Petition for writ of certiorari to the Supreme Court of Appeals of West Virginia denied. Mr. Thomas L. Pogue for petitioner. Mr. C. W. Strick-ling for respondent. Reported below: 113 W.Va. 796; 169 S.E. 471. No. 296. Darcey v. O’Brien, Trustee. October 9, 1933. Petition for writ of certiorari to the Court of Appeals of the District of Columbia denied. Mr. James 0. D. Moran for petitioner. Messrs. Norman B. Lan-dreau, Lambert O’Donnell, and Thomas W. O’Brien for respondent. Reported below: 62 App.D.C. 151; 65 F. (2d) 599. No. 297. Sheer Pharmacal Corp. v. Donner. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Richard A. Jones for petitioner. Messrs. Lynn A. Williams and Thomas H. Sheridan for respondent. Reported below: 64 F. (2d) 217. No. 299. Marland v. United States. October 9, 1933. Petition for writ of certiorari to the Court of Claims denied. Messrs. S. W. Hayes, David A. Richardson, and Eugene Jordan for petitioner. Solicitor General Biggs and Assistant Attorney General Wideman for the United States. Reported below: 78 Ct.Cls. —; 3 F.Supp. 611. See also 53 F. (2d) 907. OCTOBER TERM, 1933. 659 290 U.S. Decisions Denying Certiorari. No. 300. Werth v. Fire Companies’ Adjustment Bureau, Inc. October 9, 1933. Petition for writ of certiorari to the Supreme Court of Appeals of Virginia denied. Mr. Wm. H. Werth for petitioner. Messrs. Alexander H. Sands and Dan MacDougald for respondent. Reported below: 160 Va. 845. No. 301. Tessitore v. United States. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. George Piazza for petitioner. Solicitor General Biggs and Messrs. Mahlon D. Kiefer and W. Marvin Smith for the United States. Reported below: 64 F. (2d) 539. No. 302. Seals v. United States. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. George Piazza for petitioner. Solicitor General Biggs and Messrs. Mahlon D. Kiefer and W. Marvin Smith for the United States. Reported below: 64 F. (2d) 778. No. 303. Bank of Italy National Trust & Savings Assn. v. Bentley et al. October 9, 1933. Petition for writ of certiorari to the Supreme Court of California denied. Mr. Charles W. Collins for petitioner. Mr. Percy S. Webster for respondents. Reported below: 217 Cal. 644 ; 20 P. (2d) 940. No. 305. Trudeau v. Barnes. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. H. W. Robim-son for petitioner. No appearance for respondent. Reported below: 65 F. (2d) 563. 660 OCTOBER TERM, 1933. Decisions Denying Certiorari. 290 U.S. No. 306. Kessler v. Buick Motor Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Cody Fowler and Charles Rogers Fenwick for petitioner. Mr. Edward N. Pagelsen for respondent. Reported below: 64 F. (2d) 599. No. 307. Terry et al. v. Midland Refining Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Messrs. Frank J. Hogan, Nelson T. Hartson, Charles R. Brice, and Ellis Douthit for petitioners. Mr. J. 0. Seth for respondent. Reported below: 64 F. (2d) 428. Nos. 309 and 310. Newberry et al. v. Davison Chemical Co. October 9, 1933. Petitions for writs of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. Frank S. Spruill and Leon Tobriner for petitioners. Mr. Larry I. Moore for respondent. Reported below: 65 F. (2d) 724. No. 314. Intertype Corp, et al. v. Pulver. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Herbert S. Phillips for petitioners. Mr. Jefferson D. Stephens for respondent. Reported below: 65 F. (2d) 419. No. 315. Adams v. Commissioner of Internal Revenue. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Nathan L. Miller and Edward B. Burling for petitioner. Solicitor General Biggs, Mr. Sewall Key, and OCTOBER TERM, 1933. 661 290 U.S. Decisions Denying Certiorari. Miss Helen R. Carloss for respondent. Reported below: 65 F. (2d) 262. No. 316. Chapman v. Washington Railway & Electric Co. October 9, 1933. Petition for writ of certiorari to the Court of Appeals of the District of Columbia denied. Mr. Harlan Wood for petitioner. Messrs. Percy H. Marshall and H. W. Kelly for respondent. Reported below: 62 App.D.C. 140; 65 F. (2d) 486. No. 317. Kowal v. Perkins, Secretary of Labor; No. 318. Kabadian v. Same; No. 319. Abraham v. Same; No. 320. Polombo v. Same; No. 321. Spica v. Same; and No. 322. Petikas v. Same. October 9, 1933. Petitions for writs of certiorari to the Court of Appeals of the District of Columbia denied. Mr. Raymond M. Hudson for petitioners. Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith for respondent. Reported below: 62 App.D.C. 114, 115; 65 F. (2d) 202. No. 323. Curtis Publishing Co. v. Neyland. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. J. M. Richardson Lyeth for petitioner. Mr. Samuel F. Frank for respondent. Reported below: 65 F. (2d) 363. No. 324. Pennsylvania Coal & Coke Corp. v. United States. October 9, 1933. Petition for writ of certiorari to the Court of Claims denied. Mr. Frederick S. Winston for petitioner. Solicitor General Biggs and Assistant At- 662 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. torney General Wideman for the United States. Reported below: 77 Ct. Cis. 594; 3 F.Supp. 240. No. 326. Queen v. Commonwealth Trust Co. et al. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Messrs. William A. Schnader and John Duggan, Jr., for petitioner. Messrs. John M. Freeman and H. F. Stambaugh for respondents. Reported below: 64 F. (2d) 946. No. 327. Baltimore Equitable Society v. United States. October 9, 1933. Petition for writ of certiorari to the Court of Claims denied. Messrs. Adrian C. Humphreys and Newton K. Fox for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman and Mr. H. Brian Holland for the United States. Reported below: 77 Ct. Cis. 566; 3 F.Supp. 427. No. 328. Vargas v. Chua et al. October 9, 1933. Petition for writ of certiorari to the Supreme Court of the Philippine Islands denied. Mr. Jose Yulo for petitioner. No appearance for respondents. No. 330. Corsicana v. Hulen, Receiver. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Richard Mays for petitioner. Messrs. Wm. F. Dickinson, Bruce Scott, J. H. Barwise, and Wm. R. Watkins for respondent. Reported below: 65 F. (2d) 969. No. 331. Louis Gatto v. United States; and No. 332. Dorothy Gatto v. Same. October 9, 1933. Petitions for writs of certiorari to the Circuit Court of 663 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. Appeals for the Seventh Circuit denied. Mr. Harry N. Pritzker for petitioners. Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith for the United States. Reported below: 63 F. (2d) 1003. No. 333. Continental Illinois Bank & Trust Co., Executor, v. United States. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. J. F. Dammann for petitioner. Solicitor General Biggs and Messrs. Erwin N. Griswold, J. Louis Monarch, and J. P. Jackson for the United States. Reported below: 65 F. (2d) 506. No. 334. Northern Trust Co. et al., Executors, v. United States. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. J. F. Dammann for petitioners. Solicitor General Biggs and Messrs. J. Louis Monarch and J. P. Jackson for the United States. Reported below: 65 F. (2d) 506. No. 335. Dean, Administrator, v. United States. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. J. F. Dammann for petitioner. Solicitor General Biggs and Messrs. J. Louis Monarch and J. P. Jackson for the United States. Reported below: 65 F. (2d) 506. No. 336. Kadow et al. v. Robertson, Commissioner of Patents. October 9, 1933. Petition for writ of certiorari to the Court of Appeals of the District of Columbia denied. Mr. Otto R. Barnett for petitioners. Solicitor General Biggs and Messrs. Erwin N. Griswold and T. A. 664 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. Hostetler for respondent. Reported below: 62 App.D.C. 225 ; 66 F. (2d) 205. No. 337. Consolidated Coppermines Corp. v. Nevada Consolidated Copper Co. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. George B. Thatcher, John P. Gray, and Joseph R. Cotton for petitioner. Messrs. William Wallace and Wm. E. Colby for respondent. Reported below: 64 F. (2d) 440. No. 340. National Park Bank v. United States. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. John C. Crawley and Dallas S. Townsend for petitioner. Solicitor General Biggs and Messrs. J. Louis Monarch and Wm. Cutler Thompson for the United States. Reported below: 65 F. (2d) 415. No. 341. Rutledge, Receiver, v. Bristol, Trustee. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. L. C. McBride for petitioner. Messrs. Maco Stewart, Jr., John Neethe, and Robert Allan Ritchie for respondent. Reported below: 65 F. (2d) 986. No. 345. Rabkin v. United States. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. David P. Siegel for petitioner. Solicitor General Biggs for the United States. Reported below: 65 F. (2d) 1022. 665 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. No. 346. Robson v. United States. October 9, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Horace S. Davis for petitioner. Solicitor General Biggs and Messrs. Mahlon D. Kiefer and W. Marvin Smith for the United States. Reported below: 64 F. (2d) 1019. No. 348. Treadwell et al., Executors, v. Putnam. October 9, 1933. Petition for writ of certiorari to the Court of Appeals of the District of Columbia denied. Messrs. Bethuel M. Webster and C. Dickerman Williams for petitioners. Solicitor General Biggs and Mr. John T. Fowler, Jr., for respondent. Reported below: 62 App.D.C, 156; 65 F. (2d) 604. No. 350. Wolf v. Bass Furniture & Carpet Co. October 9, 1933. Petition for writ of certiorari to the Supreme Court of Oklahoma denied. Messrs. R. M. Rainey and Streeter B. Flynn for petitioner. Messrs. B. B. Blakeney and Hubert Ambrister for respondent. Reported below: 152 Okla. 125; 3 P. (2d) 895. No. 374. Dickerson v. United States. October 16, 1933. Petition for writ of certiorari to the Court of Appeals of the District of Columbia, and motion for leave to proceed further in forma pauperis, denied. Mr. Cedric F. Johnson for petitioner. No appearance for the United States. Reported below: 62 App.D.C. 191; 65 F. (2d) 824. No. 414. Chandler, Receiver, v. Manifold. October 16, 1933. Petition for writ of certiorari to the Supreme Court of Colorado denied upon the ground that 666 OCTOBER TERM, 1933. Decisions Denying Certiorari. 290U.S. the alleged federal question was not properly presented to the Supreme Court of Colorado. Caperton v. Bowyer, 14 Wall. 216, 236; Hulburt v. Chicago, 202 U.S. 275, 280, 281; Hiawasee River Power Co. v. Carolina-Tennessee Co., 252 U.S. 341, 343. Mr. Archibald A. Lee for petitioner. No appearance for respondent. Reported below: 92 Colo. 579; 22 P. (2d) 870. No. 313. McReynolds et al. v. Federal-American National Bank & Trust Co. October 16, 1933. Petition for writ of certiorari to the Court of Appeals of the District of Columbia denied. Messrs. George A. Berry and Joseph J. Malloy, and Mrs. Mabel Walker Wille-brandt for petitioners. Messrs. Leon Tobriner and Abner H. Ferguson for respondent. Reported below: 62 App. D.C. 291; 67 F. (2d) 251. No. 353. Pizzitolo v. United States. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. John J. Finnom for petitioner. Solicitor General Biggs and Messrs. Mahlon D. Kiefer and W. Marvin Smith for the United States. Reported below: 64 F. (2d) 680. No. 354. Vinkemulder v. United States. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. John J. Finnom for petitioner. Solicitor General Biggs and Mr. Mahlon D. Kiefer for the United States. Reported below: 64 F. (2d) 535. No. 356. Williford v. Kansas City Southern Ry. Co. October 16, 1933. Petition for writ of certiorari to 667 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Lewell C. Butler for petitioner. No appearance for respondent. Reported below: 65 F. (2d) 223. No. 357. Becker Steel Co. v. Hicks, Alien Property Custodian, et al. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. E. Crosby Kindleberger for petitioner. Solicitor General Biggs and Messrs. Harvey B. Cox and W. Marvin Smith for respondents. Reported below: 66 F. (2d) 497. No. 360. Martin v. Royal Mail Steam Packet Co. et al. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. J. Bertram Wegman for petitioner. Mr. Morton L. Fearey for respondents. Reported below: 65 F. (2d) 1019. No. 362. Detroit Fidelity & Surety Co. v. Third National Bank. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. John B. Sutton for petitioner. Mr. H. H. Taylor for respondent. Reported below: 65 F. (2d) 548. No. 365. New Orleans & Great Northern R. Co. et al. v. Branton, Administratrix. October 16, 1933. Petition for writ of certiorari to the Supreme Court of Mississippi denied. Messrs. Ellis B. Cooper and J. N. Flowers for petitioners. Mrs. Vivian Branton, pro se. Reported below: 167 Miss. 52; 146 So. 870. 668 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. No. 367. Wabash Ry. Co. v. St. Louis. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Homer Hall and J. H. Miller for petitioner. Mr. Charles M. Hay for respondent. Reported below: 64 F. (2d) 921. No. 368. Garrison, Trustee, v. Johnson et al. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Mr. M. E. Garrison, pro se. Mr. Robert C. Faulston for respondents. Reported below: 66 F. (2d) 227. No. 369. Plibrico Jointless Firebrick Co. v. Caigan. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Messrs. Harold S. Davis and John M. Raymond for petitioner. Mr. Israel Caigan, pro se. Reported below: 65 F. (2d) 849. No. 371. Empire Storage & Ice Co. v. National Match Co. October 16, 1933. Petition for writ of certiorari to the Kansas City Court of Appeals, of Missouri, denied. Messrs. Harry L. Jacobs, I. J. Ringolsky, and Wm. G. Boatright for petitioner. Mr. Raymond G. Barnett for respondent. Reported below: 58 S.W. (2d) 797. No. 372. Grace Line, Inc. v. Toulon. October 16, 1933. Petition for writ of certiorari to the Supreme Court of New York denied. Messrs. Charles R. Hickox, Vernon S. Jones, and Raymond Parmer for petitioner. Mr. Simone N. Gazen for respondent. Reported below: 261 N.Y.S. 993; 262 N.Y. 506. See also 237 App.Div. 892. 669 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. No. 373. Independent Taxi Owners Assn., Inc. v. Callas. October 16, 1933. Petition for writ of certiorari to the Court of Appeals of the District of Columbia denied. Mr. Alfred D. Smith for petitioner. Mr. John U. Gardiner for respondent. Reported below: 62 App.D.C. 212; 66 F. (2d) 192. No. 375. Crompton & Knowles Loom Works v. White, Collector. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. Frederick S. Winston for petitioner. Solicitor General Biggs, Mr. J. Louis Monarch, and Miss Helen R. Carloss for respondent. Reported below: 65 F. (2d) 132. No. 376. Karl v. New York Central R. Co. October 16, 1933. Petition for writ of certiorari to the Supreme Court of Michigan denied. Mr. Seymour J. Frank for petitioner. Mr. John J. Danhof for respondent. Reported below: 262 Mich. 457; 247 N.W. 715. No. 377. American Tobacco Co. v. United States. October 16, 1933. Petition for writ of certiorari to the Court of Claims denied. Messrs. James L. Gerry and Marvin Farrington for petitioner. Solicitor General Biggs and Assistant Attorney General Wideman for the United States. Reported below: 76 Ct. Cis. 201. No. 378. P. Lorillard & Co. v. United States. October 16, 1933. Petition for writ of certiorari to the Court of Claims denied. Messrs. James L. Gerry and Marvin Farrington for petitioner. Solicitor General Biggs and 670 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. Assistant Attorney General Wideman for the United States. Reported below: 75 Ct. Cis. 874. No. 379. Anargyros v. United States. October 16, 1933. Petition for writ of certiorari to the Court of Claims denied. Messrs. James L. Gerry and Marvin Farrington for petitioner. Solicitor General Biggs and Assistant Attorney General Wideman for the United States. Reported below: 75 Ct. Cis. 874. No. 380. Delaware & Hudson Co. v. Commissioner of Internal Revenue. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. John W. Davis, Montgomery B. Angell, and H. T. Newcomb for petitioner. Solicitor General Biggs and Messrs. Sewall Key and John H. McEvers for respondent. Reported below: 65 F. (2d) 292. No. 381. Stearns, Administrator, v. Burnet, Commissioner of Internal Revenue. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. L. L. Hamby and Selden Bacon for petitioner. Solicitor General Biggs and Messrs. J. Louis Monarch and Andrew D. Sharpe for respondent. Reported below: 65 F. (2d) 371. No. 382. Burnet, Commissioner of Internal Revenue, v. Mutual Life Ins. Co. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Solicitor General Biggs for petitioner. Messrs. Frederick L. Allen, Wm. Marshall OCTOBER TERM, 1933. 671 290U.S. Decisions Denying Certiorari. Bullitt, and Edmund B. Quiggle for respondent Reported below: 65 F. (2d) 1014. No. 383. United States v. Whitbeck, Receiver. October 16, 1933. Petition for writ of certiorari to the Court of Claims denied. Solicitor General Biggs for the United States. Messrs. Edward F. Colladay and Joseph C. McGarraghy for respondent. Reported below: 77 Ct. Cis. 309. No. 384. United States v. Highland Milk Condensing Co. October 16, 1933. Petition for writ of certiorari to the Court of Claims denied. Solicitor General Biggs for the United States. No appearance for respondent. Reported below: 77 Ct. Cis. 745; 3 F.Supp. 664. No. 385. United States v. Helvetia Milk Condensing Co. October 16, 1933. Petition for writ of certiorari to the Court of Claims denied. Solicitor General Biggs for the United States. No appearance for respondent. Reported below: 77 Ct. Cis. 743; 3 F.Supp. 662. No. 386. United States v. Chicago, Indianapolis & Louisville Ry. Co. October 16, 1933. Petition for writ of certiorari to the Court of Claims denied. Solicitor General Biggs for the United States. Messrs. J. Harry Covington, C. C. Hine, and Spencer Gordon for respondent. Reported below: 78 Ct. Cis. —. No. 387. Lamson Co., Inc., v. Ingalls, Trustee. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. 672 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. Messrs. E. Crosby Kindleberger and Richard T. Rector for petitioner. Messrs. B. G. Watson and C. M. Gibson for respondent. Reported below: 66 F. (2d) 110. Nos. 389 and 390. Burnet, Commissioner of Internal Revenue, v. Chicago & North Western Ry. Co. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Solicitor General Biggs for petitioner. Mr. Nelson Trott-man for respondent. Reported below: 66 F. (2d) 61. No. 391. Burnet, Commissioner of Internal Revenue v. Norfolk Southern R. Co. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Solicitor General Biggs for petitioner. Messrs. W. B. Rodman, Claude M. Bain, R. Kemp Slaughter, and Hugh C. Bickford for respondent. Reported below: 63 F. (2d) 304. No. 392. Texas & Pacific Ry. Co. v. United States. October 16, 1933. Petition for writ of certiorari to the Court of Claims denied. Messrs. Adrian C. Humphreys and Newton K. Fox for petitioner. Solicitor General Biggs and Assistant Attorney General Wideman for the United States. Reported below: 77 Ct. Cis. 748; 3 F.Supp. 539. No. 395. United States v. White Motor Co. October 16, 1933. Petition for writ of certiorari to the Court of Claims denied. Solicitor General Biggs for the United States. Messrs. Claude M. Houchins and John E. Walker for respondent. Reported below: 77 Ct. Cis. 752; 3 F.Supp. 635. 673 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. No. 397. Ramsey v. Helvering, Commissioner of Internal Revenue. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Mr. Charles H. Garnett for petitioner. Solicitor General Biggs and Messrs. Sewall Key and Francis H. Horan for respondent. Reported below: 66 F. (2d) 316. No. 398. ZuCKERKANDEL ET AL. V. UNITED STATES. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Archibald Palmer for petitioners. Solicitor General Biggs and Mr. Harry S. Ridgely for the United States. Reported below: 66 F. (2d) 388. No. 401. Harr, Executor, et al. v. Pioneer Mechanical Corp. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Abraham Benedict for petitioners. Mr. Paxton Blair for respondent. Reported below: 65 F. (2d) 332. No. 402. Columbo Co. v. United States. October 16, 1933. Petition for writ of certiorari to the Court of Customs and Patent Appeals denied. Messrs. Allen R. Brown and John Francis Gouch for petitioner. Solicitor General Biggs and Assistant Attorney General Lawrence for the United States. Reported below: 21 C.C.P.A. (Cust.) 177; T.D. 46510. No. 403. Marvel Carburetor Co. v. Carter. October 16, 1933. Petition for writ of certiorari to the Supreme Court of Michigan denied. Mr. George I. Haight for petitioner. Mr. Howard M. Brock for respondent. Reported below: 263 Mich. 48; 248 N.W. 545. 15459°—34--------43 674 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. No. 405. Crawford v. Hale. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. J. Weston Allen for petitioner. Mr. Joseph E. Warner for respondent. Reported below: 65 F. (2d) 739. No. 406. Globe Indemnity Co. v. C. H. Earle, Inc. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. F. A. W. Ireland for petitioner. Messrs. Oscar A. Lewis and Lloyd B. Kanter for respondent. Reported below: 65 F. (2d) 1013. See also 61 F. (2d) 765. No. 407. Fitz Gerald v. Equitable Life Assurance Society. October 16, 1933. Petition for writ of certiorari to the Court of Appeals of New York denied. Messrs. Hans v. Briesen and Francis T. White for petitioner. Mr. Clifton P. Williamson for respondent. Reported below: 237 App.Div. 838; 261 N.Y.S. 913. No. 409. Fain v. Cady Lumber Co. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Isaac Barth for petitioner. No appearance for respondent. Reported below: 65 F. (2d) 644. No. 410. Luppino v. United States. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Andrew G. Haley for petitioner. Solicitor General Biggs and Mr. Mahlon D. Kiefer for the United States. Reported below: 65 F. (2d) 687. 675 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. No. 411. Neal et al., Trustees, v. Commissioner of Internal Revenue. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. Wm. Harold Hitchcock for petitioners. Solicitor General Biggs and Messrs. Sewall Key and Francis H. Horan for respondent. Reported below: 65 F. (2d) 761. No. 412. Tower Hill Connellsville Coke Co. v. Piedmont Coal Co. et al. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. John W. Davis, E. W. Knight, George E. Alter, and A. J. Barron for petitioner. Messrs. Edwin W. Smith, Arthur S. Dayton, E. C. Higbee, and Wm. M. Robinson for respondents. Reported below: 64 F. (2d) 817. No. 413. Chesapeake & Ohio Ry. Co. v. Anderson. October 16, 1933. Petition for writ of certiorari to the Supreme Court of Illinois denied. Mr. David H. Leake for petitioner. Mr. Charles C. Spencer for respondent. Reported below: 352 Ill. 561; 186 N.E. 185. No. 415. Weinberg v. United States. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Wm. E. Leahy and Wm. J. Hughes, Jr., for petitioner. Solicitor General Biggs and Mr. A. E. Gottschall for the United States. Reported below: 65 F. (2d) 394. No. 416. Delarmi v. United States. October 16, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Wm. 676 OCTOBER TERM, 1933. Decisions Denying Certiorari. 290U.S. E. Leahy and Wm. J. Hughes, Jr., for petitioner. Solicitor General Biggs and Messrs. Sewall Key and John H. McEvers for the United States. Reported below: 65 F.(2d) 1022. No. 427. Grissinger v. United States. October 23, 1933. Petition for writ of certiorari to the Court of Claims, and motion for leave to proceed further in forma pauperis, denied. Mr. Harry H. Semmes for petitioner. No appearance for the United States. Reported below: 77 Ct. Cis. 106. No. 123. Cuff v. United States et al. October 23, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit, and motion for leave to proceed further in forma pauperis, denied. Mr. Martin R. Cuff, pro se. No appearance for the United States et al. Reported below: 64 F. (2d) 624. No. 260. Spivey v. Gulf, Colorado & Santa Fe Ry. Co. October 23, 1933. Petition for writ of certiorari to the Court of Civil Appeals, Third Supreme Judicial District, of Texas, and motion for leave to proceed further in forma pauperis, denied. Mr. Winbourn Pearce for petitioner. No appearance for respondent. Reported below: 56 S.W. (2d) 655. No. 527. Reid v. Aderhold, Warden. October 23, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit, and motion for leave to proceed further in forma pauperis, denied. Mr. William J. Reid, pro se. No appearance for respondent. Reported below: 65 F. (2d) 110. 677 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. No. 418. Rhoderick, Executrix, et al. v. Swartzell et al. October 23, 1933. Petition for writ of certiorari to the Court of Appeals of the District of Columbia denied. Messrs. Wm. E. Richardson, Frank S. Bright, E. Hilton Jackson, H. Stanley Hinrichs, and George C. Shinn for petitioners. Messrs. Frederic D. McKenney, John S. Flannery, G. Bowdoin Craighill, Louis Titus, C. L. Frailey, and P. J. Hurley for respondents. Reported below: 62 App.D.C. 180; 65 F. (2d) 813. No. 420. Hosier et al. v. United States. October 23, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Frank J. Looney and Thos. W. Robertson for petitioners. Solicitor General Biggs and Mr. Mahlon D. Kiefer for the United States. Reported below: 64 F. (2d) 657. No. 423. Johnson v. United States. October 23, 1933. Petition for writ of certiorari to the Court of Claims denied. Messrs. Lawrence A. Baker, Edward H. Green, and Henry Ravenel for petitioner. Solicitor General Biggs and Assistant Attorney General Wideman for the United States. Reported below: 76 Ct. Cis. 360; 1 F.Supp. 778. See also 3 F.Supp. 544. No. 424. Beneficial Loan Society v. Commissioner of Internal Revenue. October 23, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Jackson R. Collins for petitioner. Solicitor General Biggs and Messrs. Erwin N. Griswold, Sewall Key, and John G. Remey for respondent. Reported below: 65 F. (2d) 759. 678 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. No. 425. William C. Atwater & Co., Inc. v. United States. October 23, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Chauncey I. Clark for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman and Mr. H. Brian Holland for the United States. Reported below: 65 F. (2d) 1023. No. 430. Esselstyn, Executor, v. Helvering, Commissioner of Internal Revenue. October 23, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Donald Horne for petitioner. Solicitor General Biggs and Messrs. Sewall Key and >8. Dee Hanson for respondent. Reported below: 65 F. (2d) 1015. No. 431. U. S. Fidelity & Guaranty Co. et al. v. Mississippi et al. October 23, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. William H. Watkins for petitioners. No appearance for respondents. Reported below: 66 F. (2d) 9. No. 436. Spurlock et al. v. Security Building & Loan Assn, et al. October 23, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Charles H. Rutherford for petitioners Mr. Henderson Stockton for respondents. Reported below: 65 F. (2d) 768. No. 439. Little v. Cox & Carpenter, Inc., et al. October 23, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. S. C. Mize for petitioner. Messrs. J. Zach Spearing OCTOBER TERM, 1933. 679 290 U.S. Decisions Denying Certiorari. and W. L. Guice for respondents. Reported below: 66 F. (2d) 84. _________ No. 441. New York Underwriters Insurance Co. v. Central Union Bank. October 23, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. R. E. Whiting and Joseph L. Nettles for petitioner. No appearance for respondent. Reported below: 65 F. (2d) 738. No. 442. Tate v. Sevier, Judge. October 23, 1933. Petition for writ of certiorari to the Supreme Court of Missouri denied. Mr. Gus 0. Nations for petitioner. Mr. Joseph T. Davis for respondent. Reported below: 333 Mo. 662; 62 S.W. (2d) 895. No. 443. Yengo v. United States. October 23, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Irving K. Baxter for petitioner. Solicitor General Biggs and Mr. Mahlon D. Kiefer for the United States. Reported below: 65 F. (2d) 1023. No. 444. Utah Home Fire Insurance Co. v. Commissioner of Internal Revenue. October 23, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Messrs. Charles D. Hamel and Alan E. Gray for petitioner. Solicitor General Biggs, Mr. Sewall Key, and Miss Helen R. Carloss for respondent. Reported below: 64 F. (2d) 763. No. 446. Boston Broadcasting Co. v. Federal Radio Comm’n. October 23, 1933. Petition for writ of certi- 680 OCTOBER TERM, 1933. Decisions Denying Certiorari. 290U.S. orari to the Court of Appeals of the District of Columbia denied. Mr. Joseph C. Fehr for petitioner. Solicitor General Biggs and Assistant Attorney General Stephens for respondent. Reported below: 62 App.D.C. 299; 67 F. (2d) 505. No. 447. Pote v. Federal Radio Comm’n. October 23, 1933. Petition for writ of certiorari to the Court of Appeals of the District of Columbia denied. Mr. Joseph C. Fehr for petitioner. Solicitor General Biggs and Assistant Attorney General Stephens for respondent. Reported below: 62 App.D.C. 303; 67 F. (2d) 509. No. 448. Jackson et al. v. El Paso et al. October 23, 1933. Petition for writ of certiorari to the Supreme Court of Texas denied. Mr. Thornton Hardy for petitioners. No appearance for respondents. Reported below: 59 S.W. (2d) 822. No. 450. Travelers Insurance Co. v. Bancroft et al. October 23, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Messrs. Randolph Shirk and Richard K. Bridges for petitioner. Mr. Roscoe C. Arrington for respondents. Reported below: 65 F. (2d) 963. No. 493. Paul Klopstock & Co., Inc. v. United Fruit Co. See ante, p. 593. No. 473. Royal Indemnity Co. et al. v. American Bond & Mortgage Co., Inc., et al. November 6, 1933. Petition for writ of certiorari to the Circuit Court of OCTOBER TERM, 1933. 681 290U.S. Decisions Denying Certiorari. Appeals for the First Circuit denied. Mr. Chief Justice Hughes took no part in the consideration or decision of this application. Mr. Saul S. Myers for petitioners. Messrs. Robert Hale and Leonard A. Pierce for respondents. Reported below: 65 F. (2d) 455. No. 393. Cohen Goldman & Co., Inc. v. United States. November 6,1933. Petition for writ of certiorari to the Court of Claims denied. Messrs. H. H. Nordlinger and Dean Hill Stanley for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. Paul A. Sweeney and H. Brian Holland for the United States. Reported below: 77 Ct. Cis. 713. No. 432. Glenn et al., Executors, v. Bowers, Executor; and No. 433. Same v. Edwards, Collector of Internal Revenue. November 6, 1933. Petition for writs of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Lewis Landes for petitioners. Solicitor General Biggs and Messrs. Sewall Key and J. P. Jack-son for .respondents. Reported below: 65 F. (2d) 1017. No. 445. Goodyear Tire & Rubber Co., Inc. v. Overman Cushion Tire Co., Inc. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Charles Neave, F. 0. Richey, and B. D. Watts for petitioner. Mr. Robert W. Byerly for respondent. Reported below: 66 F. (2d) 361. No. 465. Goodyear Tire & Rubber Co., Inc. v. Overman Cushion Tire Co., Inc., et al. November 6, 1933. 682 290U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. F. 0. Richey and B. D. Watts for petitioner. Messrs. Lawrence Bristol and Robert W. Byerly for respondents. Reported below: 66 F. (2d) 81. No. 451. Frankel v. United States. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. C. Dickerman Williams for petitioner. Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith for the United States. Reported below: 65 F. (2d) 285. No. 452. Inecto, Inc. v. Federal Trade Comm’n. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Murray Hulbert for petitioner. Solicitor General Biggs and Messrs. Erwin N. Griswold and Robert E. Healy for respondent. No. 453. Helvering, Commissioner of Internal Revenue, v. New York Life Ins. Co. November 6,1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Solicitor General Biggs and Mr. Erwin N. Griswold for petitioner. Messrs. Louis H. Cooke and Wm. Marshall Bullitt for respondent. Reported below: 65 F. (2d) 347. No. 454. Mackey et al. v. Irving Trust Co., Trustee. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Francis L. Driscoll for petitioners. Mr. Wm. H. Freedman for respondent. Reported below: 66 F. (2d) 416. 683 290U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. No. 456. Century Indemnity Co. v. Nelson. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Oliver Dibble for petitioner. Mr. Joe G. Sweet for respondent. Reported below: 65 F. (2d) 765. No. 457. Martin v. Tennessee Copper & Chemical Corp. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Messrs. Harvey L. Lechner and Robert H. McCarter for petitioner. Mr. Thomas G. Haight for respondent. Reported below: 66 F. (2d) 187. No. 458. O’Hearne v. United States. November 6, 1933. Petition for writ of certiorari to the Court of Appeals of the District of Columbia denied. Mr. W. B. O’Connell for petitioner. Solicitor General Biggs and Mr. Mahlon D. Kiefer for the United States. Reported below: 62 App.D.C. 285; 66 F. (2d) 933. No. 459. First National Bank of Boston, Executor, v. Talbott, Auditor. November 6, 1933. Petition for writ of certiorari to the Court of Appeals of Kentucky-denied. Messrs. Simeon S. Willis and T. Kennedy Helen for petitioner. Mr. S. H. Brown for respondent. Reported below: 250 Ky. 90; 61 S.W. (2d) 1086. No. 460. U.S. Trust Co., Executor, v. Anderson, Collector of Internal Revenue. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. John W. Davis for petitioner. Solicitor General Biggs, Mr. Sewall 684 OCTOBER TERM, 1933. Decisions Denying Certiorari. 290U.S. Key, and Miss Helen R. Carloss for respondent. Reported below: 65 F. (2d) 575. No. 461. Opelousas-St. Landry Securities Co., Inc., et al. v. United States et al. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. E. B. Dubuisson for petitioners. Solicitor General Biggs and Messrs. Paul A. Sweeney and Aubrey Lawrence for the United States et al. Reported below: 66 F. (2d) 41. No. 462. Iowa ex rel. Board of Railroad Comm’rs v. Stanolind Pipe Line Co. November 6, 1933. Petition for writ of certiorari to the Supreme Court of Iowa denied. Messrs. J. H. Henderson and Stephen Robinson for petitioner. Mr. James L. Parrish for respondent. Reported below: 216 la. 436; 249 N.W. 366. No. 464. McMillan v. H. W. Roos Co. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Richard K. Stevens for petitioner. Mr. Harold E. Stonebraker for respondent. Reported below: 64 F. (2d) 568. No. 466. Aquilera y Kindelan v. Ickes, Secretary of the Interior. November 6, 1933. Petition for writ of certiorari to the Court of Appeals of the District of Columbia denied. Mr. Patrick H. Loughran for petitioner. Solicitor General Biggs and Messrs. Paul A. Sweeney and A. G. Iverson for respondent. Reported below: 62 App.D.C. 226; 66 F. (2d) 206. 685 290U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. No. 467. Texas Electric Service Co. v. Seymour et al. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Mark McMahon, C. L. Black, and Joe A. Worsham for petitioner. Mr. Allen Wight for respondents. Reported below: 66 F. (2d) 814. No. 468. Livingston, Trustee, v. Mortgage Loan Co. et al. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Foster H. Brown for petitioner. Mr. Paul Bakewell, Jr., for respondents. Reported below: 66 F. (2d) 636. No. 469. Cleveland, C., C. & St. L. Ry. Co. v. Taylor. November 6, 1933. Petition for writ of certiorari to the Supreme Court of Missouri denied. Messrs. S. W. Baxter and H. N. Quigley for petitioner. Mr. Elliott W. Major for respondent. Reported below: 333 Mo. 650; 63 S.W. (2d) 69. No. 470. Cunningham et al. v. Pacific Mutual Life Ins. Co. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Martin Sack for petitioners. Messrs. J. L. Doggett and C. Cook Howell for respondent. Reported below: 65 F. (2d) 909. No. 471. Hall v. Cronkleton, Receiver. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Maxwell V. Beghtol for petitioner. Mr. P. E. Boslaugh for respondent. Reported below: 66 F. (2d) 384. 686 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. No. 474. Burlew v. Fidelity & Casualty Co. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. John C. Doolan for petitioner. Mr. H. W. Batson for respondent. Reported below: 64 F. (2d) 976. No. 475. Security Trust Co. et al. v. Helvering, Commissioner of Internal Revenue. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Archibald Broomfield and Hal H. Smith for petitioners. Solicitor General Biggs and Messrs. Sewall Key and Andrew D. Sharpe for respondent. Reported below: 65 F. (2d) 877. No. 476. Atchison, T. & S. F. Ry. Co. v. Union Wire Rope Corp. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Cyrus Crane, Charles H. Woods, and R. S. Outlaw for petitioner. Mr. Phil D. Morelock for respondent. Reported below: 66 F. (2d) 965. No. 478. Detroit Trust Co. et al., Trustees, v. Commissioner of Internal Revenue. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Hal H. Smith and Archibald Broomfield for petitioners. Solicitor General Biggs and Messrs. Sewall Key and Andrew D. Sharpe for respondent. Reported below: 65 F. (2d) 877. No. 480. New York, Ontario & Western Ry. Co. v. McHale. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Cir- OCTOBER TERM, 1933. 687 290 U.S. Decisions Denying Certiorari. cuit denied. Mr. M. J. Martin for petitioner. Mr. Reese H. Harris for respondent. Reported below: 66 F. (2d) 558. No. 481. New York, Ontario & Western Ry. Co. v. Jones. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. M. J. Martin for petitioner. Mr. Joseph F. Gunster for respondent. Reported below: 66 F. (2d) 556. No. 482. Old Dominion Stages v. Cates, Administrator. November 6,1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. W. F. Barry, Jr., for petitioner. Mr. Russell R. Kramer for respondent. Reported below: 65 F. (2d) 258. No. 483. Duncanson-Harrelson Co. v. Davidson. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Victor H. Pinckney for petitioner. Messrs. Ira S. Lillick and Chalmers G. Graham for respondent. Reported below: 66 F. (2d) 354. No. 484. Gowen v. Commissioner of Internal Revenue. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. H. A. Hauxhurst and Richard Inglis for petitioner. Solicitor General Biggs, Messrs. Sewall Key and H. Brian Holland, and Miss Helen R. Carloss for respondent. Reported below: 65 F. (2d) 923. No. 485. Heiden, Receiver, v. Cremin, Trustee. November 6, 1933. Petition for writ of certiorari to the 688 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. Circuit Court of Appeals for the Eighth Circuit denied. Mr. Vail E. Purdy for petitioner. No appearance for respondent. Reported below: 66 F. (2d) 943. No. 488. Chicago & Eastern Illinois Ry. Co. v. Public Service Comm’n of Indiana. November 6, 1933. Petition for writ of certiorari to the Supreme Court of Indiana denied. Messrs. Hinkle C. Hays and Alonzo C. Owens for petitioner. Mr. Isidor Kahn for respondent. Reported below: 205 Ind. 253; 186 N.E. 330. No. 490. Carolina Contracting Co. v. Standard Accident Insurance Co. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. Wm. S. Nelson, Edward W. Mullins, C. W. Tillett, and C. W. Tillett, Jr., for petitioner. Mr. Douglas McKay for respondent. Reported below: 64 F. (2d) 583. No. 491. Rubsam Corp, et al. v. General Motors Corp, et al. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Fred Gerlach for petitioners. Mr. Drury W. Cooper for respondents. Reported below: 65 F. (2d) 217. No. 499. Helvering, Commissioner of Internal Revenue, v. Warner. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Solicitor General Biggs for petitioner. Mr. Joseph M. Hartfield for respondent. Reported below: 66 F. (2d) 403. 689 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. No. 504. Sorensen et al. v. Pyrate Corp. November 6, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Walter H. Moses for petitioners. Mr. Harold M. Sawyer for respondent. Reported below: 65 F. (2d) 982. No. 560. Laramore v. Florida. November 13, 1933. Petition for writ of certiorari to the Supreme Court of Florida, and motion for leave to proceed further in forma pauperis, denied. Mr. John W. Laramore, pro se. No appearance for respondent. Reported below: 111 Fla. 755. No. 563. Mark v. Wilson, Warden. November 13, 1933. Petition for writ of certiorari to the Supreme Court of New York, Appellate Division, 3d Department, and motion for leave to proceed further in forma pauperis, denied. Mr. Ralph Mark, pro se. No appearance for respondent. Reported below: 236 App. Div. 872. No. 507. Dooley Improvements, Inc. v. Motor Improvements, Inc., et al. November 13, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. The Chief Justice took no part in the consideration or decision of this application. Messrs. John M. Zane and Hugh M. Morris for petitioner. Messrs. Theodore S. Kenyon, Frederick Bachman, and Nelson Littell for respondents. Reported below: 66 F. (2d) 553. No. 280. Atlantic Oil Transit Corp, et al. v. Procter & Gamble Co. November 13,1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Chauncey I. Clark and 15459°—34-------44 690 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. Eugene Underwood for petitioners. Messrs. Harold S. Deming and Wharton Poor for respondent. Reported below: 66 F. (2d) 609. No. 172. Whitehead, Executor, v. Helvering, Commissioner of Internal Revenue. November 13, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. H. L. McCune for petitioner. Solicitor General Biggs for respondent. Reported below: 64 F. (2d) 118. No. 486. Baird v. United States. November 13, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Sidney L. Herold for petitioner. Solicitor General Biggs and Messrs. Sewall Key and John G. Remey for the United States. Reported below: 65 F. (2d) 911. No. 489. Bogan, Administratrix, v. Hynes et al. November 13, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Eric Lyders for petitioner. Mr. Aloysius I. McCormick for respondents. Reported below: 65 F. (2d) 524. No. 492. Impiriale v. Perkins, Secretary of Labor. November 13, 1933. Petition for writ of certiorari to the Court of Appeals of the District of Columbia denied. Mr. Raymond M. Hudson for petitioner. Solicitor General Biggs and Messrs. Frank M. Parrish, Harry S. Ridgely, and W. Marvin Smith for respondent. Reported below: 62 App.D.C. 279; 66 F. (2d) 805. 691 290 US. OCTOBER TERM, 1933. Decisions Denying Certiorari. No. 494. W. H. Hill Co. v. Helvering, Commissioner of Internal Revenue. November 13, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Robert P. Smith for petitioner. Solicitor General Biggs and Messrs. Sewall Key and Norman D. Keller for respondent. Reported below: 64 F. (2d) 506. No. 496. Navigazione Generale Italiana v. Eitting, Collector of Customs. November 13, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Cletus Keating, Delbert M. Tibbetts, and Gaspare M. Cusumano for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. W. S. Ward and H. Brian Holland for respondent. Reported below: 66 F. (2d) 537. No. 497. Transatlantica Italiana v. Elting, Collector of Customs. November 13, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Cletus Keating, Delbert M. Tibbetts, and Gaspare M. Cusumano for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. W. S. Ward and H. Brian Holland for respondent. Reported below: 66 F. (2d) 542. No. 500. Pine v. Columbian National Life Ins. Co. November 13, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Irving Lemov for petitioner. Mr. Eli J. Blair for respondent. Reported below: 65 F. (2d) 1020. 692 OCTOBER TERM, 1933. Decisions Denying Certiorari. 290 U.S. No. 501. Cobb v. National Surety Co. November 13, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Howard B. Warren for petitioner. No appearance for respondent. Reported below: 66 F. (2d) 323. No. 502. Lafayette Worsted Co. v. Page, Collector of Internal Revenue. November 13, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Messrs. Laurence Arnold Tanzer and James Craig Peacock for petitioner. Solicitor General Biggs, Messrs. Erwin N. Griswold and J. Louis Monarch, and Miss Louise Foster for respondent. Reported below: 66 F. (2d) 339. No. 503. Rosenbloom Finance Corp. v. Helvering, Commissioner of Internal Revenue. November 13, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. W. W. Spalding for petitioner. Solicitor General Biggs and Messrs. J. Louis Monarch, Edward H. Horton, and H. Brian Holland for respondent. Reported below: 66 F. (2d) 556. _________ No. 508. Southern Realty Corp, et al', v. Heath et al. November 13, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Benjamin Harrison Powell and Paul Carrington for petitioners. Mr. James V. Allred for respondents. Reported below: 65 F. (2d) 934. No. 510. Compagnie Francaise De Navigation A Vapeur v. Elting, Collector of Customs. November 13, 1933. Petition for writ of certiorari to the Circuit 693 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. Court of Appeals for the Second Circuit denied. Mr. Melville J. France for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Mr. Paul A. Sweeney for respondent. Reported below: 66 F. (2d) 536. No. 511. Compagnie Francaise De Navigation A Vapeur v. Elting, Collector of Customs. November 13, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Melville J. France for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Mr. Paul A. Sweeney for respondent. Reported below: 66 F. (2d) 536. No. 512. Compagnie Francaise De Navigation A Vapeur v. Elting, Collector of Customs. November 13, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Melville J. France for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Mr. Paul A. Sweeney for respondent. Reported below: 66 F. (2d) 536. No. 513. Compagnie Francaise De Navigation A Vapeur v. Elting, Collector of Customs. November 13, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Melville J. France for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Mr. Paul A. Sweeney for respondent. Reported below: 66 F. (2d) 536. No. 514. Compagnie Francaise De Navigation A Vapeur v. Elting, Collector of Customs. November 694 OCTOBER TERM, 1933. Decisions Denying Certiorari. 290U.S. 13, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Melville J. France for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Mr. Paul A. Sweeney for respondent. Reported below: 66 F. (2d) 536. No. 517. State ex rel. Cotonio v. Italo-American Homestead Assn. November 13, 1933. Petition for writ of certiorari to the Supreme Court of Louisiana denied. Mr. Theodore Cotonio, pro se. No appearance for respondent. Reported below: 177 La. 766; 149 So. 449. No. 408. Jorgensen v. Thornberg. November 20, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. George Washington Williams for petitioner. No appearance for respondent. Reported below: 65 F. (2d) 794. See also 60 F. (2d) 471. No. 495. Ferguson v. United States. November 20, 1933. Petition for writ of certiorari to the Court of Claims denied. Messrs. R. M. O’Hara and Leslie C. Garnett for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Mr. Paul A. Sweeney for the United States. Reported below: 77 Ct.Cls. 380; 2 F.Supp. 1012. No. 518. United States v. Norcott; No. 519. Same v. Bennett; No. 520. Same v. Packer; No. 521. Same v. Carroll; and No. 522. Same v. Needham. November 20, 1933. Petition for writs of certiorari to the Circuit Court of OCTOBER TERM, 1933. 695 290U.S. Decisions Denying Certiorari. Appeals for the Seventh Circuit denied. Solicitor General Biggs and Mr. Erwin N. Griswold for the United States. Mr. George I. Haight for respondents. Reported below: 65 F. (2d) 913. No. 523. Brown Shoe Co. v. Carns, Trustee. November 20, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Ralph T. Finley, James C. Jones, Lon 0. Hocker, Frank H. Sullivan, James C. Jones, Jr., Frank Y. Gladney, and Wm. 0. Reeder for petitioner. Messrs. Patrick H. Cullen and Thos. T. Fauntleroy for respondent. Reported below: 65 F. (2d) 294. No. 528. Crucible Steel Casting Co. v. Helvering, Commissioner of Internal Revenue. November 20, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. George M. Morris for petitioner. Solicitor General Biggs and Messrs. Erwin N. Griswold, Sewall Key, and S'. Dee Hanson for respondent. Reported below: 66 F. (2d) 82. No. 530. Wells, Receiver, v. Simons. November 20, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Thos. C. Ridgway for petitioner. No appearance for respondent. Reported below: 65 F. (2d) 673. No. 532. Greenhut, Trustee in Bankruptcy, v. National Commercial Title & Mortgage Guaranty Co. November 20, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit de- 696 290 US. OCTOBER TERM, 1933. Decisions Denying Certiorari. nied. Messrs. Maurice J. Zucker and Louis D. Goldberg for petitioner. Mr. Francis Lafferty for respondent. Reported below: 66 F. (2d) 428. No. 533. Greenhut, Trustee in Bankruptcy, v. Asssociated Company. November 20, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Messsrs. Maurice J. Zucker and Louis D. Goldberg for petitioner. Mr. Francis Lafferty for respondent. Reported below: 66 F. (2d) 428. No. 536. Altvater et al. v . Freeman et al. November 20, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Samuel E. Darby, Jr., and Lawrence C. Kingsland for petitioners. Messrs. John H. Bruninga, Charles E. Riordon, and C. Russell Riordon for respondents. Reported below: 66 F. (2d) 506. No. 537. Rosenberg et al. v. Lewis, Collector of Internal Revenue. November 20, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Adolphus E. Graupner for petitioners. Solicitor General Biggs and Messrs. Sewall Key and John H. McEvers for respondent. Reported below: 66 F. (2d) 271. No. 540. Curtiss-Wright Flying Service, Inc. v. Glose. November 20, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Messrs. Henry G. Hotchkiss and James D. Carpenter, Jr., for petitioner. Mr. John W. Griffin for respondent. Reported below: 66 F. (2d) 710. OCTOBER TERM, 1933. 697 290 U.S. Decisions Denying Certiorari. No. 543. Delaware & Hudson Co. et al. v. Glens Falls Portland Cement Co. November 20, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Wade H. Ellis and H. T. Newcomb for petitioners. Messrs. Julius Henry Cohen, Kenneth Day ton, and Burton A. Zorn for respondent. Reported below: 66 F. (2d) 490. No. 544. Z. & F. Assets Realization Corp, et al. v. Doerschuck et al. December 4, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Chief Justice Hughes took no part in the consideration or decision of this application. Messrs. Frederick F. Greenman and Spier Whitaker for petitioners. Messrs. Louis Titus and Charles L. Frailey for respondents. Reported below: 66 F. (2d) 397. No. 438. American Indemnity Co. et al. v. Hale County, Texas, et al. December 4, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Marion N. Chrestman and G. B. Ross for petitioners. No appearance for respondents. Reported below: 63 F. (2d) 275. No. 534. Southern Pacific Co. v. Miller. December 4, 1933. Petition for writ of certiorari to the Supreme Court of Utah denied. Messrs. Emmett M. Bagley and Paul H. Ray for petitioner. Mr. Lindsay R. Rogers for respondent. Reported below: 82 Utah —; 21 P. (2d) 865; 24 id. 380. No. 538. Southern Pacific R. Co. v. Ambler Grain & Milling Co. December 4, 1933. Petition for writ of 698 290 US. OCTOBER TERM, 1933. Decisions Denying Certiorari. certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. J. R. Bell and Frank Thunen for petitioner. Mr. Archibald H. Vernon for respondent. Reported below: 66 F. (2d) 670. No. 539. Allen Gasoline Co. v. Franklin Fire Insurance Co. December 4, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. William C. Bristol for petitioner. Messrs. A. L. Veazie and F. A. Rittenhouse for respondent. Reported below: 65 F. (2d) 609. No. 545. Buckley v. Commissioner of Internal Revenue. December 4, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Thomas G. Haight, Robert H. Montgomery, and J. Marvin Haynes for petitioner. So-lidtor General Biggs and Messrs. Sewall Key and Andrew D. Sharpe for respondent. Reported below: 66 F. (2d) 394. No. 549. Employers’ Liability Assurance Corp., Ltd., et al. v. Bodron. December 4, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. William H. Watkins for petitioners. Mr. John Brunini for respondent. Reported below: 65 F. (2d) 539. No. 556. Taylor et al. v. Detroit Motor Appliance Co. December 4, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Thomas Francis Howe, Frank E. Liverance, Jr., and Henry S. Rademacher for petitioners. Mr. Albert OCTOBER TERM, 1933. 699 290U.S. Decisions Denying Certiorari. G. McCaleb for respondent. Reported below: 66 F. (2d) 319. No. 557. Wallace v. Franz. December 4, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Lon 0. Hocker, James C. Jones, Frank H. Sullivan, and Frank Y. Gladney for petitioner. Mr. Allen McReynolds for respondent. Reported below: 66 F. (2d) 457. No. 554. O’Donnell v. Commissioner of Internal Revenue. December 4, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Thomas R. Dempsey for petitioner. Solicitor General Biggs and Messrs. Sewall Key and John H. McEvers for respondent. Reported below: 64 F. (2d) 634. No. 558. American Cigar Co. v. Commissioner of Internal Revenue. December 4, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Thomas G. Haight, Robert H. Montgomery, and J. Marvin Haynes for petitioner. Solicitor General Biggs and Messrs. Sewall Key and John H. McEvers for respondent. Reported below: 66 F. (2d) 425. No. 559. St. Joseph Loan & Trust Co. v. Studebaker Corp. December 4, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. John C. Wait for petitioner. Mr. George T. Evans for respondent. Reported below: 66 F. (2d) 151. 700 OCTOBER TERM, 1933. Decisions Denying Certiorari. 290 U.S. No. 567. Goodyear Tire & Rubber Co., Inc. v. Jamaica Truck Tire Service, Inc., et al. ; and No. 568. Sears, Roebuck & Co. v. Same. December 4, 1933. Petition for writs of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs Silas H. Strawn and John D. Black for Goodyear Tire & Rubber Co., Inc. Mr. Charles Lederer for Sears, Roebuck & Co. Messrs. Joseph G. Slottow and Charles Leviton for respondents. Reported below: 66 F. (2d) 91. No. 396. Boston Safe Deposit & Trust Co. et al. v. Helvering, Commissioner of Internal Revenue. December 11, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. Harris H. Gilman for petitioners. Solicitor General Biggs and Messrs. Sewall Key and J. P. Jackson for respondent. Reported below: 66 F. (2d) 179. No. 553. Giannini v. Brashears. December 11, 1933. Petition for writ of certiorari to the District Court of Appeal, 4th Appellate District, of California, denied. Mr. Denver S. Church for petitioner. Mr. George Halverson for respondent. Reported below: 131 Cal. App. 706; 22 P. (2d) 47. No. 564. Turner, Trustee, v. John Deere Plow Co. December 11, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Thomas S. Tobin for petitioner. Messrs. Burke Corbet, John Selby, and B. F. Peek for respondent. Reported below: 66 F. (2d) 653. No. 570. Morris v. Hussman et al. December 11, 1933. Petition for writ of certiorari to the Circuit Court 701 290 U.S. OCTOBER TERM, 1933. Decisions Denying Certiorari. of Appeals for the Ninth Circuit denied. Mr. Clarence W. Morris, pro se. Messrs. Alfred Sutro and Eugene M. Prince for respondents. Reported below: 66 F. (2d) 879. No. 572. Bisbee Linseed Co. v. Paragon Paint & Varnish Corp. December 11, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Walbridge S. Taft for petitioner. Mr. John F. Hughes for respondent. Reported below: 66 F. (2d) 595. No. 573. Missouri Pacific R. Co. v. Alcorn. December 11,1933. Petition for writ of certiorari to the Supreme Court of Missouri denied. Messrs. Edward J. White and Thomas J. Cole for petitioner. Mr. E. H. Gamble for respondent. Reported below: 333 Mo. 828; 63 S.W. (2d) 55. No. 577. Peck v. United States. December 11, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Michael F. Gallagher and Samuel M. Rinaker for petitioner. Solicitor General Biggs and Messrs. Harry S. Ridgely and H. Brian Holland for the United States. Reported below: 65 F. (2d) 59. No. 583. Hoefer v. Atlantic Life Ins. Co. December 11, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Thomas Henry Moffatt for petitioner. No appearance for respondent. Reported below: 66 F. (2d) 464. No. 592. Atchison & Eastern Bridge Co. v. Clark. December 11, 1933. Petition for writ of certiorari to the 702 OCTOBER TERM, 1933. Decisions Denying Certiorari. 290U.S. Supreme Court of Missouri denied. Mr. W. F. Guthrie for petitioner. Mr. Miles Elliott for respondent. Reported below: 333 Mo. 721; 62 S.W. (2d) 1079. No. 584. Maryland Casualty Co. v. Board of Water Commissioners of Dunkirk et al. December 18, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Frank Gibbons and George F. Cushwa for petitioner. Messrs. Marion H. Fisher, Louis L. Babcock, and Ray M. Stanley for respondents. Reported below: 66 F. (2d) 730. No. 587. Speroni et al. v. United States. December 18, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Athanasius A. Pantelis for petitioners. Solicitor General Biggs and Mr. Joseph Millenson for the United States. Reported below: 67 F. (2d) 1011. No. 591. Hosey et al. v. Mid-Continent Petroleum Corp. December 18, 1933. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Messrs. Charles B. Rogers, E. 0. Patterson, and James M. Springer for petitioners. Messrs. Nathan A. Gibson, James C. Denton, and Richard H. Wills for respondent. Reported below: 67 F. (2d) 37. No. 610. American-Hawaiian Steamship Co. v. Musaus. December 18, 1933. Petition for writ of certiorari to the Supreme Court of New York, Kings County, denied. Messrs. Vernon S. Jones, Raymond Parmer, and Richard L. Sullivan for petitioner. Mr. Edward J. Mc-Crossin and Paul Koch for respondent. OCTOBER TERM, 1933. 703 290U.S. Decisions Denying Certiorari. No. 665. Agles v. Stolze Lumber Co. See ante, p. 604. No. 675. Poffenbarger v. Aderhold, Warden. January 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit, and motion for leave to proceed further in forma pauperis, denied. Mr. Fred Poffenbarger, pro se. No appearance for respondent. Reported below: 67 F. (2d) 250. No. 677. Davis v. Hollowell, Warden. January 8, 1934. Petition for writ of certiorari to the Supreme Court of Iowa, and motion for leave to proceed further in forma pauperis denied. Mr. James Davis, pro se. No appearance for respondent. Reported below: 216 Iowa 1178; 250 N.W. 647. No. 590. Philadelphia Fire & Marine Insurance Co. v. United States. January 8, 1934. Petition for writ of certiorari to the Court of Claims denied. Messrs. J. Craig Peacock and John W. Townsend for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. Paul A. Sweeney and H. Brian Holland for the United States. Reported below: 77 Ct. Cis. 764; 3 F.Supp. 655. Nos. 622 and 623. Cable Radio Tube Corp. v. Radio Corporation of America et al. January 8, 1934. Petition for writs of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Frank C. Laughlin for petitioner. Messrs. Charles Neave and Stephen H. Philbin for respondents. Reported below: 66 F. (2d) 778. 704 OCTOBER TERM, 1933. Decisions Denying Certiorari. 290U.S. No. 571. Junod v. Smith, Warden. January 8, 1934. Petition for writ of certiorari to the Supreme Court of California denied. Mr. E. L. Junod, pro se. No appearance for respondent. No. 593. Cheves et al. v. Whitehead, U.S. Game Protector. January 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. H. W. Johnson for petitioners. Solicitor General Biggs and Messrs. Paul A. Sweeney, A. G. Iverson, and W. Marvin Smith for respondent. Reported below: 67 F. (2d) 316. No. 596. State Consolidated Oil Co. v. Helvering, Commissioner of Internal Revenue. January 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Thomas R. Dempsey for petitioner. Solicitor General Biggs and Messrs. Sewall Key and John G. Remey for respondent. Reported below: 66 F. (2d) 648. No. 599. Children’s Home Society of West Virginia v. Swan, Receiver, et al. January 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Arthur S. Dayton for petitioner. No appearance for respondents. Reported below: 67 F. (2d) 84. No. 603. Standard Dredging Co. et al. v. Kristiansen. January 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Edward Ash for petitioners. Mr. William F. Purdy for respondent. Reported below: 67 F. (2d) 548. 705 OCTOBER TERM, 1933. 290U.S. Decisions Denying Certiorari. No. 604. Roney v. Helvering, Commissioner of Internal Revenue; and No. 605. Schapiro v. Same. January 8, 1934. Petition for writs of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. Wilton H. Wallace, E. F. Colladay, and Joseph C. McGarraghy for petitioners. Solicitor General Biggs and Messrs. Sewall Key and J. P. Jackson for respondent. Reported below: 67 F. (2d) 165. No. 612. Highway Engineering & Construction Co., Inc. v. Hillsborough County, Florida. January 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. George C. Bedell and A. G. Turner for petitioner. Mr. John B. Sutton for respondent. Reported below: 67 F. (2d) 439. No. 607. Darcy et al., Executors, v. Commissioner of Internal Revenue. January 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Raymond M. White and Allen G. Gartner for petitioners. Solicitor General Biggs and Messrs. Sewall Key and Andrew D. Sharpe for respondent. Reported below: 66 F. (2d) 581. No. 615. Vigorito v. United States. January 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Emanuel Celler for petitioner. Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith for the United States. Reported below: 67 F. (2d) 329. No. 620. Pfaffinger v. United States. January 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. A. 15459 34-----45 706 OCTOBER TERM, 1933. Decisions Denying Certiorari. 290U.S. Calder Mackay and Thomas R. Dempsey for petitioner. Solicitor General Biggs and Messrs. Sewall Key, F. W. Dewart, and H. Brian Holland for the United States. Reported below: 66 F. (2d) 901. No. 621. Mutual Lumber Co. v. Poe, Collector of Internal Revenue. January 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Charles E. McCulloch, Charles A. Hart, and Ivan F. Phipps for petitioner. Solicitor General Biggs and Messrs. J. Louis Monarch and Edward H. Horton for respondent. Reported below: 66 F. (2d) 904. No. 624. Jamerson et al. v. United States. January 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. P. H. Cullen for petitioners. Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith for the United States. Reported below: 66 F. (2d) 569. No. 628. Standard Oil Co. v. Sedalia ex rel. Bauman; No. 629. Shell Petroleum Corp. v. Same; No. 630. Skelly Oil Co. v. Same ; No. 631. Sinclair Refining Co. v. Same; No. 632. White Eagle Oil & Rfg. Co. et al. v. Same; No. 633. Mid-Continent Petroleum Corp. v. Same; and No. 634. National Rfg. Co. v. Same. January 8,1934. Petition for writs of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Guy A. Thompson, Samuel A. Mitchell, Frank A. Thompson, Truman Post Young, James C. Denton, Richard H. Wills, John T. Martin, Louis L. Stephens, and James P. Kem for petitioners. Mr. Bruce Barnett for respondent. Reported below: 66 F. (2d) 757. OCTOBER TERM, 1933. 707 CASES DISPOSED OF WITHOUT CONSIDERATION BY THE COURT, FROM OCTOBER 2, 1933, TO AND INCLUDING JANUARY 8, 1934. No. 157. Baer v. Askenase et al. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit. October 2, 1933. Dismissed on motion of Mr. Arthur G. Brode for petitioner. Reported below: 65 F. (2d) 1010. No. 70. Cobb et al v. Department of Public Utilities et al. Appeal from the District Court of the United States for the Western District of Washington. October 9, 1933. Per Curiam: The appeal herein is dismissed for failure of the appellants to comply with Rule 12, paragraph 1, and with Rule 13, paragraph 9, of the rules of this Court. Mr. R. C. Cobb for appellants. No appearance for appellees. Reported below: 60 F. (2d) 631. No. 69. Merriam, Executor, v. U.S. District Court in and for the District of Arizona. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit. October 9, 1933. Dismissed per stipulation of counsel. Mr. Charles C. Montgomery for petitioner. Solicitor General Biggs for respondent. Reported below: 61 F. (2d) 110. No. 268. Plaza Amusement Co. et al. v. Rothenberg et al. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit. October 9, 1933. Dismissed per stipulation of counsel. Messrs. Marcellus Green, Charles Rosen, Garner W. Green, Stamps Farrar, and J. W. Curry for petitioners. Messrs. R. E. Wilbourne and A. S. Bozeman for respondents. Reported below: 65 F. (2d) 254. 708 OCTOBER TERM, 1933. Cases Disposed of Without Consideration by the Court. 290 U.S. No. 455. Celotex Co. et al. v. Masonite Corp. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit. October 16, 1933. Dismissed per stipulation of counsel. Messrs. Henry M. Huxley, Caleb S. Layton, and George L. Wilkinson for petitioners. Messrs. Drury W. Cooper, Hugh M. Morris, and Herbert H. Dyke for respondent. Reported below: 66 F. (2d) 451. No. 257. E. H. Ferree Co. et al. v. United Shoe Machinery Corp. On writ of certiorari to the Circuit Court of Appeals for the Second Circuit. November 20, 1933. Dismissed per stipulation of counsel. Messrs. George P. Dike and Donald Campbell for petitioners. Mr. Charles Neave for respondent. Reported below: 64 F. (2d) 101. No. 3, original. Nevada v. Crown Willamette Paper Co. December 4, 1933. Pursuant to a stipulation filed in this Court by the parties to the above-entitled cause on November 22, 1933, it is ordered that the bill of complaint herein be, and it is hereby, dismissed. This order is made subject to the agreement of the parties as set forth in the stipulation aforesaid, which, it is agreed, shall not operate as a retraxit; and this order is without prejudice to the right of the complainant, The State of Nevada, to renew this litigation in such form as it shall deem proper if it shall determine that the provisions of the said stipulation, or of any prior stipulation recited and confirmed therein, has been or are being violated by the defendant. Mr. Gray Mashburn, Attorney General of Nevada, for plaintiff. Messrs. Oscar Sutro and W. H. Orrick for defendant. No. 417. George L. Squier Mfg. Co. v. Domenech. Petition for writ of certiorari to the Circuit Court of Ap- OCTOBER TERM, 1933. 709 290 U.S. Cases Disposed of Without Consideration by the Court. peals for the First Circuit. December 4, 1933. Dismissed on motion of Messrs. John Lord O’Brian and Noel 8. Symons for petitioner. Reported below: 66 F. (2d) 31. No. 524. Malavazos et al. v. Irving Trust Co., Trustee in Bankruptcy. Certiorari to the Circuit Court of Appeals for the Second Circuit. December 4, 1933. Dismissed on motion of Mr. Albert D. Cash for petitioners. Mr. Moses Cohen for respondent. Reported below: 66 F. (2d) 482. No. 576. United States ex rel. Boric v. Marshall, District Director of Immigration. Certiorari to the Circuit Court of Appeals for the Third Circuit. January 8, 1934. Dismissed on motion of Mr. Arthur I. Zeiger for petitioner. Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith for respondent. Reported below: 67 F. (2d) 1020. INDEX. ABATEMENT. 1. Resignation of Officer. Substitution of successor; survival of cause of action. Fix v. Philadelphia Barge Co., 530. 2. Death of Wrongdoer. Whether action survives determined by law of place of wrong. Ormsby v. Chase, 387. ACCOUNTING. See Evidence, 1; Taxation, II, 1. ACTIONS. See Abatement, 1-2; also Butte, A. & P. Ry. Co. v. U.S., 127. Right of Action. Pennsylvania survival statute gave no substantive right to plaintiff on foreign cause of action. Ormsby v. Chase, 387. ADMINISTRATIVE CONSTRUCTION. See Statutes, 10-11. ADMIRALTY. 1. Seamen. Protection and Relief. Right of owner of shipwrecked vessel to compensation for transportation of destitute seamen from Alaska. Alaska S.S. Co. v. U.S., 256. 2. Liability of Shipowner. Harter Act. Jason Clause. Duty to make ship seaworthy at intermediate stage of voyage; effects of failure on owner’s rights and liabilities. May v. Hamburg-Amerikanische, etc., 333. 3. Warranty of Seaworthiness. Implied warranty; nature and effect; right of bailee of cargo to recover for loss due to breach. Cullen Fuel Co. v. Hedger Co., 82. 4. Limitation of Liability. Boat owner who by personal contract impliedly warrants seaworthiness, held not entitled to limit liability upon breach. Id. 5. Id. Contract orally arranged by employee of owner as latter’s personal contract. Id. 6. Contract of Affreightment. Overpayment of Freight. Liens. Duty of ship to charge no more as freight than contract allows; lien in favor of cargo for overpayment; lien as affected by ignorance of parties that rate was excessive and by fact that action for overpayment would be at common law for money had and received; application of rule as to secret liens and principle of mutuality. Krauss Bros. Co. v. Dimon S.S. Co., 117. 711 712 INDEX. AGENCY. See Admiralty, 5; Banks, 1-4; Set-Off. ALASKA. See Admiralty, 1. ALIMONY. See Divorce. AMOUNT IN CONTROVERSY. See Jurisdiction, III, 1-2. ANCILLARY BILL. See Jurisdiction, I, 2. ANNUITIES. See Taxation, II, 2. APPEAL. See Bills of Exceptions; Evidence, 7; Jurisdiction, II, 1-6. ASSIGNMENT. See Jurisdiction, III, 3; Trusts. ASSUMPTION OF RISK. See Northwestern Pac. R. Co. v. Bobo, 499. ATTORNEYS’ FEES. See Jurisdiction, III, 1. AUTOMOBILES. See Constitutional Law, III, 2; IX, (A), 1; IX, (B), 3; IX, (C), 2; Jurisdiction, II, 4; Negligence, 1-5. BAILMENT. Right of Bailee of cargo to recover for loss due to breach of warranty of seaworthiness. Cullen Fuel Co. v. Hedger Co., 82. BANKRUPTCY. 1. Turnover Order. Form. General description of goods sufficient if definite as possible and intelligible to respondent. Cooper v. Dasher, 106. 2. Discharge. Contractor who procured bond from surety by false written statements as to financial condition held to have obtained “ property on credit,” barring discharge. Fidelity & Deposit Co. n. Arenz, 66. BANKS. See Constitutional Law, IX, (B), 8; Farm Loan Act; Receivers, 2. 1. Collections. Where relation between bank and depositor is one of agency, depositor has right of action against collecting bank for default in collection or remittance. Dakin v. Bayly, 143. 2. Id. Upon record, collecting bank was agent of depositors of collection items in forwarding bank. Id. 3. Id. Bank not entitled in suit for debt owed by it individually to set off demand asserted as agent. Id. 4. Id. Where collecting bank at time of its insolvency remained liable as sub-agent to depositors of collection items in forwarding bank, latter not entitled to set off against debt owed by it individually a claim based on drafts remitted by collecting bank. Id. INDEX. 713 BILLS AND NOTES. See Banks, 1-2, 4. BILLS OF EXCEPTIONS. Form. Rules. Condensation and narration of evidence; effect of failure to comply with rule of Circuit Court of Appeals. Alexander v. Cosden Co., 484. BONDHOLDERS. See Jurisdiction, III, 2; Trusts. BONDS. See Bankruptcy, 2; Constitutional Law, VI, 3; Damages, 1; Liens. BOUNDARIES. Decree adjudging boundary. Vermont v. New Hampshire, 579. BREAD WEIGHT LAW. See Petersen Baking Co. v. Bryan, 570. CARGO. See Admiralty, 3, 6. CARRIERS. See Constitutional Law, III, 2; IX, (A), 1; IX, (B), 3; IX, (C), 2; Interstate Commerce Acts, 1-2. CAUSE OF ACTION. See Abatement, 1-2; Actions. CITIZENSHIP. See Jurisdiction, III, 3. CLAIM AND DELIVERY. See Receivers. CLAIMS. See Admiralty, 1; Constitutional Law, VI, 3. 1. What Claims Allowable. Claim arising out of frustration of payment of improvement bonds resulting from acquisition of lands by United States, not cognizable under Tucker Act. Mullen Benevolent Corp. v. UB., 89. 2. Id. Acts of Government’s agents held not to have given rise to implied contract to pay. Id. 3. Interest. Claim of amount additional to value of property at time of taking by eminent domain was not for “ interest ” and not barred by Jud. Code, § 177. Jacobs v. UB., 13. CLASSIFICATION. See Constitutional Law, IX, (C), 1-2. COMITY. See Receivers, 4. COMMERCE. See Constitutional Law, III, 1-2; Interstate Commerce; Interstate Commerce Acts. COMMON LAW. Nature. Adaptability to changed conditions. Funk v. UB., 371. COMPTROLLER GENERAL. See Statutes, 9. 714 INDEX. CONFLICT OF LAWS. See Abatement, 2; Infants; Jurisdiction, I, 3-4; II, 2, 8-9. CONSPIRACY. Conspiracy to violate Corrupt Practices Act; sufficiency of indictment. Burroughs v. U.S., 534. CONSTITUTIONAL LAW. See Elections; Eminent Domain, 1-4; Jurisdiction, I, 2-4; Statutes. I. In General, p. 714. II. Judicial Power, p. 714. III. Commerce Clause, p. 715. IV. Contract Clause, p. 715. V. Fourth Amendment, p. 715. VI. Fifth Amendment, p. 715. VII. Tenth Amendment, p. 715. VIII. Eleventh Amendment, p. 715. IX. Fourteenth Amendment. (A) In General, p. 716. (B) Due Process Clause, p. 716. (C) Equal Protection Clause, p. 717. I. In General. 1. Construction Generally. Constitutional power as affected by emergency. Home Bldg. & Loan Assn. v. Blaisdell, 398. 2. Federal and State Governments. State taxation of lands owned by the United States is void. Mullen Benevolent Corp. v. U.S., 89. 3. Presidential Elections. Powers of Congress; validity of Corrupt Practices Act. Burroughs v. U.S., 534. 4. Delegation of Power. Statute authorizing administrative officer to require elimination of grade crossing by railroad without right to hearing or review, invalid. Southern Ry. Co. v. Virginia, 190. 5. State Equality. Principle of state equality not disturbed by legitimate exertion of constitutional power by federal government in respect of its Indian wards. U.S. v. Chavez, 357. 6. Full Faith and Credit Clause. Decree in divorce suit fixing permanent obligation for support and education of child held binding on courts of another State. Yarborough v. Yarborough, 202. II. Judicial Power. Limitations. Effect of Eleventh Amendment. Missouri v. Fiske, 18. INDEX. 715 CONSTITUTIONAL LAW—Continued. III. Commerce Clause. 1. State Taxation. Property in Transit. Livestock purchased and kept at stockyards by trader for resale acquired situs for local taxation. Minnesota v. Blasius, 1. 2. State Regulations. Highways. Statute imposing on private contract carriers fees based on carrying capacity of vehicles and requiring public liability insurance, valid. Hicklin v. Coney, 169. IV. Contract Clause. 1. Limitation of. Remedy. Restraint on State as affected by economic emergency; validity of Minnesota Mortgage Moratorium Act. Home Bldg. & Loan Assn. v. Blaisdell, 398. 2. Id. Statute allowing interest on sum recovered as damages for breach of contract, though theretofore unliquidated, sustained; validity not affected by retroactive operation. Funkhouser v. Preston Co., 163. V. Fourth Amendment. Warrants. Validity. Probable Cause. Warrant to search private dwelling issued on mere suspicion or belief was void, though seizure was under tariff laws. Nathanson v. U.S., 41. VI. Fifth Amendment. 1. Statutes. Retrospective Operation. Application of estate tax to decedent’s half-interest in tenancy by entirety created prior to statute, held not retroactive; cessation of decedent’s interest presented proper occasion for imposition of tax. Griswold n. Hel-vering, 56. 2. Eminent Domain. Right to recover just compensation derives from Fifth Amendment, independently of statute or express promise. Jacobs v. U.S., 13. 3. What Constitutes Taking. Acquisition of Idaho lands by United States, frustrating payment of improvement bonds through reassessment, held not a taking of bondholder’s property. Mullen Benevolent Corp. v. U.S., 89. VII. Tenth Amendment. Reserved Power. Emergency as occasion for exercise of reserved power; harmonizing reserved power with contract clause. Home Bldg. & Loan Assn. v. Blaisdell, 398. VIII. Eleventh Amendment. Construction and Application. See Missouri v. Fiske, 18. 716 INDEX. CONSTITUTIONAL LAW—Continued. IX. Fourteenth Amendment. (A) In General. 1. Powers of State. Public Safety. Validity of Massachusetts compulsory automobile liability insurance statute. Ex parte Poresky, 30. 2. Police Power is subject to inhibitions of Fourteenth Amendment. Southern Ry. Co. v. Virginia, 190. (B) Due Process Clause. 1. Taxation. Rolling Stock. Jurisdiction to tax fleet of tank cars employed in several States; location of refinery served by cars did not fix situs of entire fleet; State may properly tax average number of cars present within it. Johnson Oil Co. v. Oklahoma, 158. 2. Regulations of Business. Validity of Nebraska standard weight bread law and regulations fixing maximum tolerances. Petersen Baking Co. y. Bryan, 570. 3. Highways. Motor Vehicles. Regulation of use of highways by private contract carriers; requirements as to fees based on carrying capacity of vehicles, and liability insurance; statute did not require private carrier to become common carrier. Hicklin v. Coney, 169. 4. Public Utilities. Injunction by federal court of confiscatory state rates. Central Kentucky Co. v. R.R. Comm’n, 264. 5. Contracts. Retroactive Law. Statute allowing interest on unliquidated demands for breach of contract, though retroactive, sustained. Funkhouser v. Preston Co., 163. 6. Notice and Hearing. Statute authorizing administrative officer to determine without notice necessity for elimination of grade crossing by railroad, invalid. Southern Ry. Co. v. Virginia, 190. 7. Id. Statute held not fatally indefinite. Hicklin v. Coney, 169. 8. Procedural Matters. Remedies. Legislation denying to depositor of insolvent bank right to appointment of receiver, but preserving substantive rights, sustained. Gibbes n. Zimmerman, 326. 9. Id. Amendment guarantees effective procedure but not particular form of remedy. Id. 10. Id. Validity of Minnesota Mortgage Moratorium Law. Home Bldg. & Loan Assn. v. Blaisdell, 398. INDEX. 717 CONSTITUTIONAL LAW—Continued. (C) Equal Protection Clause. 1. Classification. Validity of Minnesota Mortgage Moratorium Law. Home Bldg. & Loan Assn. v. Blaisdell, 398. 2. Id. Use of Highways. Regulations. Exemptions in favor of farmers and dairymen hauling farm and dairy products, and haulers of lumber and logs from forests to shipping points, sustained. Hicklin v. Coney, 169. CONTRACT OF AFFREIGHTMENT. See Admiralty, 6. CONTRACTORS’ BONDS. See Bankruptcy, 2; Damages, 1. CONTRACTS. See Admiralty, 4-6; Claims, 1-2; Constitutional Law, IV, 1-2; IX, (B), 8-10; Trusts; War Risk Insurance. CONTRIBUTORY NEGLIGENCE. See Negligence, 3-5. CORPORATIONS. See Receivers, 3, 5; Trusts. CORRUPT PRACTICES ACT. Validity. Burroughs v. UB., 534. COURTS. See Jurisdiction; Receivers, 1. CREDITORS’ SUITS. See Receivers, 5. CRIMINAL LAW. See Evidence, 6-7; Extradition, 1-2; Instructions to Jury; Searches; Witnesses, 1-2. 1. Larceny. Jurisdiction of Crime. Lands owned and occupied by people of Pueblo of Isleta were “ Indian country,” and theft of Indian property by non-Indian within pueblo was federal offense. UB. v. Chavez, 357. 2. Willfully. Meaning of as used in penal provision of revenue act. UB. v. Murdock, 389. 3. Corrupt Practices Act. Conspiracy. Sufficiency of indictment. Burroughs v. UB., 534. DAMAGES. 1. Measure. Bonds. Measure of damages recoverable by mortgagee-obligee on contractor’s bond guaranteeing completion of building; rule in Pennsylvania. Trainor Co. n. Aetna Casualty Co., 47. 2. Unliquidated Damages. Allowance of interest. Funkhouser v. Preston Co., 163. DEATH. See Abatement, 2; Constitutional Law, VI, 1. 718 INDEX. DECREES. See Judgments. Supplement of. See New Jersey v. New York City, 237. DEFICIT. See Federal Control. DELEGATION OF POWER. See Constitutional Law, I, 4. DISABILITY. See War Risk Insurance. DISCHARGE. See Bankruptcy, 2. DIVERSITY OF CITIZENSHIP. See Jurisdiction, HI, 3. DIVORCE. See Constitutional Law, I, 6; Domicile. Alimony. Support of Child. Jurisdiction of court and validity and effect of decree fixing permanent alimony for minor child. Yarborough v. Yarborough, 202. DOMICILE. Infants. Domicile of minor pending suit for divorce by parents was that of father. Yarborough v. Yarborough, 202. DYING DECLARATIONS. See Evidence, 6-7. ECONOMIC EMERGENCY. See Home Bldg. & Loan Assn. v. Blaisdell, 398. EJUSDEM GENERIS. See Statutes, 12. ELECTIONS. Appointment of Presidential Electors. Authority of Congress; validity of Corrupt Practices Act. Burroughs v. U.S., 534. EMERGENCY. See Negligence, 5. Constitutional powers of State as affected by emergency. Home Bldg. & Loan Assn, v; Blaisdell, 398. EMINENT DOMAIN. 1. What Constitutes Taking. See Mullen Benevolent Corp. n. U.S., 89. 2. Just Compensation. United States bound by Fifth Amendment to pay, irrespective of statute or express promise. Jacobs v. UB„ 13. 3. Id. Owner entitled to such addition to value of property at time of taking as will produce equivalent of that value paid contemporaneously with taking. Id. 4. Id. Equivalent of value “ paid contemporaneously ” with taking may include interest. Id. INDEX. 719 EMPLOYERS’ LIABILITY ACT. See Negligence. Right of Recovery. Injury must have been caused by the negligence complained of; assumption of risk; where cause of injury is purely matter of speculation, case should be withdrawn from jury. Northwestern Pac. R. Co. v. Bobo, 499. ENTIRETIES. See Constitutional Law, VI, 1. EQUITY. Application of “ clean hands ” maxim. Keystone Co. v. General Excavator Co., 240. ESTATE TAX. See Constitutional Law, VI, 1; Taxation, II, 3. ESTOPPEL. See Jurisdiction, I, 2; Procedure. EVIDENCE. See Bills of Exceptions; Negligence, 4-5; Verdict; War Risk Insurance; Witnesses, 1-2. Directed verdict for insufficiency of evidence. See Lumbra n. US., 551; N. W. Pac. R. Co. v. Bobo, 499. 1. Judicial Notice. Court can not take judicial notice as to what are “ ordinary and necessary expenses ” of business in computing net income. Welch v. Helvering, 111. 2. Competency. Exclusion of evidence competent for one purpose but not another. Shepard v. U.S., 96. 3. Id. Hearsay. Distinction between declarations of intention and declarations of memory. Id. 4. Sufficiency of Evidence. Of total permanent disability. Lumbra v. US., 551. 5. Contributory Negligence. Burden of proof is on defendant, who may have benefit of plaintiff’s evidence; where evidence speaks neither one way nor the other, presumption is there was no contributory negligence. Miller v. Union Pac. R. Co., 227. 6. Dying Declarations. Conditions of Admission. Declarant must have spoken without hope of recovery and in the shadow of impending death. Shepard n. U.S., 96. 7. Id. Decedent’s accusation of defendant, erroneously admitted as dying declaration, could not be treated on appeal as properly in case to rebut suicide theory. Id. EXEMPTIONS, See Constitutional Law, IX, (C), 2; Taxation, III, 4. 720 INDEX. EXTRADITION. 1. International Extradition. Treaties. Right to extradition exists only when created by treaty; construction of extradition treaties; effect of abrogation of treaty. Factor v. Laubenheimer, 276. 2. Extraditable Offenses. Local Criminality. Fugitive was extraditable to England for receiving money knowing it to have been fraudulently obtained, though that may not have been crime in asylum State. Id. 3. Proceedings. Effect of abrogation of treaty where obligation to surrender is continued by new treaty. Id. FARM LOAN ACT. Construction. Rights of Borrowers. Effect of loss of proceeds of loan through insolvency of depository of Association pending disbursement. Federal Land Bank v. Gaines, 247. FEDERAL CONTROL. Reimbursement of Deficits. Payments. Jurisdiction and function of Commission; question whether “ deficit ” was sustained was not jurisdictional; Government not entitled, on ground that Commission misconstrued statute, to recover payments made to carrier pursuant to Interstate Commerce Commission certificate. Butte, A. & P. Ry. Co. v. U.S., 127. FINDINGS. See Interstate Commerce Acts, 1. FRAUD. See Extradition, 2. FRAUDULENT CONVEYANCES. See First Nat. Bank. v. Flershem, 504. FUGITIVES. See Extradition, 1-3. FULL FAITH AND CREDIT. See Constitutional Law, I, 6. GAS. See Interstate Commerce. GEORGIA. See Infants; Judgments. GRADE CROSSINGS. See Constitutional Law, I, 4; IX, (B), 6. GUARDIAN AND WARD. See Taxation, III, 4. HABEAS CORPUS. Procedure. Proceeding did not abate or become moot upon abrogation of extradition treaty, where new treaty continued obligation to surrender. Factor v. Laubenheimer, 276. INDEX. 721 HARTER ACT. See Admiralty, 2. HIGHWAYS. See Constitutional Law, III, 2; IX, (B), 3; IX, (C), 2. HOMICIDE. See Evidence, 6-7. HUSBAND AND WIFE. See Constitutional Law, VI, 1; Negligence, 4; Witnesses, 2. IDAHO. See Constitutional Law, VI, 3; Liens. Suit in federal court under state claim and delivery statute to recover property from sheriff of state court. Oakes v. Lake, 59. IMPLIED CONTRACT. See Admiralty, 3-4; Claims, 2. IMPLIED WARRANTY. See Admiralty, 3-4. INCOME TAX. See Taxation, II, 1-2. INCOMPETENT PERSONS. See Taxation, III, 4. INDEFINITENESS. See Constitutional Law, IX, (B), 7. INDIAN COUNTRY. See Criminal Law, 1. INDIANS. See Constitutional Law, I, 5; Criminal Law, 1. Allotments. Restrictions on Alienation. Construction and application of Act of June 21, 1906; effect as to resident Kickapoo; restriction on alienation held not removed. U.S. v. Reily, 33. INDICTMENT. Corrupt Practices Act. Conspiracy. Sufficiency of indictment; adequacy of count as affected by reference to defective count. Burroughs v. U.S., 534. INFANTS. See Domicile. Support. Actions. Decree of Georgia court in divorce suit fixing permanent alimony for minor child was binding on child though afterwards domiciled elsewhere. Yarborough v. Yarborough, 202. INHERITANCE TAX. See Taxation, I, 2; II, 3. INJUNCTION. See Jurisdiction, III, 5-7. INSOLVENCY. See Banks, 4; Farm Loan Act; Receivers. INSTRUCTIONS TO JURY. 1. Criminal Cases. Expressing opinion as to guilt of defendant. U.S. v. Murdock, 389. 15459°—34-------46 722 INDEX. INSTRUCTIONS TO JURY—Continued. 2. Id. In prosecution under Revenue Acts for willfully failing to supply information, refusal to give requested instruction bearing on willfulness of defendant’s act was erroneous. Id. INSURANCE. See Constitutional Law, III, 2; IX, (A), 1. INTEREST. See Claims, 3; Constitutional Law, IV, 2; Eminent Domain. Allowance of interest on claims for unliquidated damages. Funkhouser n. Preston Co., 163. INTERNATIONAL LAW. See Extradition, 1-3; States, 1. INTERSTATE COMMERCE. See Constitutional Law, III, 1-2. What Constitutes. Sale, transportation and delivery of natural gas by pipe line to distributors in other States is interstate commerce. Sate Comm’n v. Wichita Gas Co., 561. INTERSTATE COMMERCE ACTS. See Employers’ Liability Act; Federal Control. 1. Rates. Discrimination. Power of Commission under § 13 (4) to increase intrastate rates; reasonableness of particular rates; procedure; findings; validity of order. U.S. v. Louisiana, 70. 2. Actions Against Carriers. Notice or filing of claim not condition precedent to action for negligent damage to shipment even though contract so provides. Missouri Pac. R. Co. v. Hartley Bros., 576. INTERVENTION. See First Nat. Bank v. Flershem, 504. JASON CLAUSE. See Admiralty, 2. JOINT TENANCY. See Constitutional Law, VI, 1; Taxation, 11,3. JOINT TORTFEASORS. See Torts. JUDGMENTS. See Jurisdiction, I, 2; II, 6. Validity. Res Judicata. Divorce decree providing for permanent support and maintenance of child conformed to Georgia law and was res judicata. Yarborough v. Yarborough, 202. JUDICIAL NOTICE. See Evidence, 1; and Home Bldg. & L. Assn. v. Blaisdell, 398. JUDICIAL POWER. See Constitutional Law, II, Jurisdiction. INDEX. 723 JURISDICTION. See Claims; Constitutional Law, II; Criminal Law, 1; Extradition; Habeas Corpus; Receivers. I. In General, 723. II. Jurisdiction of this Court, 723. III. Jurisdiction of District Courts, 723. IV. Jurisdiction of States Courts, 724. I. In General. 1. Equity. Application of “ clean hands ” maxim. Keystone Co. v. General Excavator Co., 240. 2. Suit Against State. Immunity of State from suit by individual; waiver; immunity extends to equitable demands and remedies, and to suits in rem or quasi in rem; proceeding by ancillary or supplemental bill was suit; purpose to protect jurisdiction and maintain its decree does not give federal court power; claim that State was estopped by decree of federal court did not give that court jurisdiction of suit to restrain State from proceeding in its own court. Missouri v. Fiske, 18. 3. Rules of Decision. On questions of general law, federal courts lean towards agreement with courts of State. Trainor Co. v. Aetna Casualty Co., 47. 4. Conflict with State Court. Suit in federal court under Idaho statute to recover property (or its value) held by sheriff under process of state court. Oakes v. Lake, 59. II. Jurisdiction of this Court. 1. Scope of Review. See Alexander v. Cosden Co., 484. 2. Id. State Statutes. Decision of state court as to meaning and extent of statutory requirements is binding here. Hicklin v. Coney, 169. 3. Federal Question. Must have been raised below. Gibbes v. Zimmerman, 326. 4. Substantial Federal Question. Claim of invalidity of Massachusetts compulsory automobile liability insurance statute held without merit. Ex parte Poresky, 30. 5. Moot Questions. See Hicklin v. Coney, 169; Gibbes v. Zimmerman, 326. 6. Finality of Judgment. Bill of review does not lie to review interlocutory order appointing receiver; dismissal should have been without prejudice to right to intervene in receivership suit. First Nat. Bank v. Flershem, 504. III. Jurisdiction of District Courts. 1. Amount in Controversy. As including attorney’s fees. Missouri State Life Ins. Co. v. Jones, 199. 724 INDEX. JURISDICTION—Continued. 2. Id. In suit by bondholders’ committee as affected by amounts of individual interests of beneficiaries. Bullard n. Cisco, 179. 3. Diversity of Citizenship. Assignments. Bondholders’ committee held bonds and coupons as trustees and right to sue depended on their citizenship, not on that of beneficiaries. Id. 4. Equity. Receivers. Appointment of receivers and judicial sale of property of solvent corporation; bill held without equity. First Nat. Bank v. Flershem, 504. 5. Interlocutory Injunction. State Statute. Authority of single district judge to dismiss bill for want of jurisdiction. Ex parte Poresky, 30. 6. Injunction. Preliminary order of state commission; suit premature. State Comm’n v. Wichita Gas Co., 561. 7. Injunction. Confiscatory Rates. Rate was one prescribed not by contract but by state authority and infringed constitutional limitations if confiscatory; district courts without power to prescribe rates; denial of relief unless plaintiff submits to rate which he challenges as unreasonable was improper; form of decree reflecting changed conditions. Central Kentucky Co. v. R.R. Comm’n, 264. 8. Local Matters. Decree holding Kentucky statute invalid under state constitution, modified to permit state authorities to apply for relief in future if state court sustains statute or if circumstances change. Glenn v. Field Packing Co., 177. 9. Removal of Suits from State Courts. Amount in controversy as including attorney’s fees; effect of statute providing for collection of attorney’s fees as “ costs.” Missouri State Life Ins. Co. v. Jones, 199. IV. Jurisdiction of State Courts. Divorce. Infants. Jurisdiction of parents in divorce proceeding conferred jurisdiction over nonresident minor’s custody and support. Yarborough v. Yarborough, 202. JURY. See Employers’ Liability Act; Instructions to Jury, 1-2. JUST COMPENSATION. See Constitutional Law, VI, 2; Eminent Domain, 2-4. KENTUCKY. Oleomargarine tax law invalid. Glenn v. Field Packing Co., 177. LARCENY. See Criminal Law, 1. INDEX. 725 LIABILITY INSURANCE. See Constitutional Law, III, 2; IX, (A), 1. LICENSES. See Constitutional Law, III, 2. LIENS. See Admiralty, 6. Improvement District Bonds. As lien on lands under Idaho statutes. Mullen Benevolent Corp. v. US., 89. LIMITATION OF LIABILITY. See Admiralty, 4-5. LOCAL CRIMINALITY. See Extradition, 2. MARITIME LIENS. See Admiralty, 6. MASSACHUSETTS. Validity of compulsory automobile liability insurance law. Ex parte Poresky, 30. MASTER AND SERVANT. See Admiralty, 5. MAXIMS. Clean hands. See Keystone Co. v. General Excavator Co., 240. MINNESOTA. Validity of Mortgage Moratorium Law. Home Bldg. & Loan Assn. v. Blaisdell, 398. MISTAKE. Error of Judgment. Payment of money by Government as result of misconstruction of statute held not “mistake.” Butte, A. & P. Ry. Co. v. US., 127. MOOT QUESTIONS. See Jurisdiction, II, 5. MORTGAGES. See Farm Loan Act. 1. Validity of Minnesota Mortgage Moratorium Law. Home Bldg. & Loan Assn. v. Blaisdell, 398. 2. Measure of damages recoverable by mortgagee-obligee on building contractor’s bond. Trainor Co. y. Aetna Casualty Co., 47. MOTOR VEHICLES. See Constitutional Law, III, 2; IX, (A), 1; IX, (B), 3; IX, (C), 2; Jurisdiction; Negligence, 1-5. MUTUALITY. See Admiralty, 6; Set-Off. NATURAL GAS. See Interstate Commerce. 726 INDEX. NEBRASKA. Validity Standard Weight Bread Law. Petersen Baking Co. v. Bryan, 570. NEGLIGENCE. See Employers’ Liability Act; Evidence, 5. 1. Proximate Cause. Holding that negligence of driver was sole proximate cause of his death, but permitting finding that it was only concurring cause of deaths of passengers, was fatally inconsistent. Stringfellow v. Atlantic Coast Line, 322. 2. Id. Negligence of driver of automobile was not intervening proximate cause of death of passenger but concurred with negligence of train, and railroad was liable. Miller v. Union Pac. R. Co., 227. 3. Contributory Negligence. Motorist who at crossing where train could be seen fails to look, or takes chance, is contributorily negligent in law. Id. 4. Id. Imputed. Negligence of automobile driver may not be imputed to passenger, though latter be driver’s wife. Id. 5. Id. Emergency. Passenger not guilty of contributory negligence where evidence does not show how he acted in emergency. Id. NEGOTIABLE INSTRUMENTS. See Banks, 1, 4. NEW HAMPSHIRE. See Boundaries. NEW MEXICO. See States. NONRESIDENTS. See Infants. NOTICE. See Constitutional Law, IX, (B), 6. NUISANCES. See New Jersey v. New York City, 237. OLEOMARGARINE. See Statutes, 4. PARENT AND CHILD. See Infants. PENNSYLVANIA. See Actions; Damages, 1. PERSONAL PROPERTY. See Constitutional Law, IX, (B), 1. PIPE LINE COMPANIES. See Interstate Commerce; Taxation, II, 4. PRESUMPTIONS. See Evidence, 5. PRINCIPAL AND AGENT. See Banks, 1-4; Set-Off. PRIVATE CONTRACT CARRIERS. See Constitutional Law, III, 2; IX, (B), 3. INDEX 727 PROBABLE CAUSE. As requisite to issuance of warrant. See Nathanson v. UB., 41. PROCEDURE. See Abatement, 1-2; Bankruptcy, 1; Banks, 4; Bills of Exceptions; Claims, 3; Constitutional Law, IX, (B), 8-10; Criminal Law, 3; Damages, 1-2; Employers’ Liability Act; Evidence, 1-2, 4-7; Extradition, 3; Habeas Corpus; Idaho; Indictment; Instructions to Jury, 1-2; Interstate Commerce Acts, 1-2; Jurisdiction; Mortgages, 2; Negligence, 1; Probable Cause; Receivers, 1-5; Removal; Searchers; Set-Off; States, 2; Statutes, 6-7; Verdict; War Risk Insurance; Witnesses, 1-2. Cl aim that decree of federal court adjudicating ownership of property estopped State could be set up in proceeding by State in state court and, if denied, the decision could be reviewed here. Missouri v. Fiske, 18. PROXIMATE CAUSE. See Negligence, 1-2. PUBLIC OFFICERS. See Abatement, 1. PUBLIC POLICY. Competency of wife as witness for defendant in criminal case as affected by considerations of public policy. Funk n. U.S., 371. PUBLIC SAFETY. See Constitutional Law, IX, (A), 1. PUBLIC UTILITIES. See Constitutional Law, IX, (B), 4; Jurisdiction, III, 6-7. PUEBLO OF ISLETA. See Criminal Law, 1. RAILROADS. See Constitutional Law, I, 4; IX, (B), 1, 6; Negligence, 1-5. RATES. See Interstate Commerce Acts, 1; Jurisdiction, III, 6-7. RECEIVERS. 1. In General. Function of court. First Nat. Bank v. Flershem, 504. 2. Appointment. Right of depositor of insolvent bank to have receiver appointed. Gibbes v. Zimmerman, 326. 3. Id. Receivership for solvent corporation. First Nat. Bank v. Flershem, 504. 4. Suits By. Receiver may sue in foreign jurisdiction for repossession; principle is one of law, not comity. Oakes n. Lake, 59. 5. Conveyances. Rights of Creditors. Reorganization of solvent corporation; judicial sale; sale of separate plants as an entirety; adequacy of price; rights of non-assenting creditors. First Nat. Bank n. Flershem, 504. 728 INDEX. REMOVAL. Amount in controversy as including attorney’s fees. Missouri State Life Ins. Co. v. Jones, 199. REPLEVIN. See Jurisdiction, I, 4; Receivers, 4. RESERVED POWER. See Constitutional Law, VII. RES JUDICATA. See Judgments. RESTRICTIONS ON ALIENATION. See Indians. RETROACTIVE LAWS. See Constitutional Law, IX, (B), 5. RULES. See Bills of Exceptions. RULES OF DECISION. See Jurisdiction, I, 3. SEAMEN. See Admiralty, 1 SEARCHES. Search Warrant. Validity. Warrant to search private dwelling issued on mere suspicion or belief was void, though seizure was under tariff laws. Nathanson n. U.S., 41. SEAWORTHINESS. See Admiralty, 2-4. SECRET LIENS. See Admiralty, 6. SET-OFF. Mutuality. Defendant not entitled to set off demand asserted as agent. Dakin n. Bayly, 143. SHIPPING. See Admiralty. SPECIAL ASSESSMENTS. See Constitutional Law, VI, 3. STATES. 1. State Equality. Principle of equality, as declared by Act enabling New Mexico to become State, not disturbed by exertion by United States of constitutional power over Indians. U.S. v. Chavez, 357. 2. Immunity from Suit. Waiver. State may waive immunity; intervention seeking temporary impounding of securities involved in suit did not constitute waiver; immunity applies to equitable demands and remedies; proceeding by ancillary and supplemental bill was suit; purpose to protect jurisdiction and maintain its decree does not empower federal court to entertain suit; that suit is in rem or quasi in rem is immaterial. Missouri v. Fiske, 18. INDEX. 729 STATUTES. See Constitutional Law, I, 1-4; III, 2; IV, 1-2; IX, (A), 1-2; IX, (B), 2-10; IX, (C), 1-2; Jurisdiction, II, 2; Treaties. 1. Validity. Retrospective Operation. See Griswold v. Helvering, 56. 2. Id. Certainty. Requirements of statute, as construed by state court, held not indefinite. Hicklin v. Coney, 169. 3. Id. Policy. Question whether legislation is wise or unwise as matter of policy, is not for courts. Home Bldg. & Loan Assn. v. Blaisdell, 398. 4. Id. Particular Statutes. Kentucky oleomargarine tax statute held invalid under state constitution. Glenn v. Field Packing Co., 177. 5. Id. Federal Corrupt Practices Act. Burroughs v. U.S., 534. 6. Attacking Statute. Challenger must show statute invalid as to him; statute having double purpose must be shown to be invalid in both aspects. Petersen Baking Co. v. Bryan, 570. 7. Id. One complaining of unreasonableness of regulations promulgated by administrative board should apply to board for modification before bringing suit. Id. 8. Construction. Federal Farm Loan Act. Federal Land Bank v. Gaines, 247. 9. Id. Where Statute Unambiguous. Rulings of Comptroller General plainly in conflict with statute are without weight as administrative constructions. Alaska S.S. Cd. v. U.S., 256. 10. Administrative Construction. Effect of where long and consistently adhered to. Id. 11. Id. Weight of construction by department charged with administration. Id. 12. Meaning of Words. Application of rule of ejusdem generis. Factor v. Laubenheimer, 276. 13. Id. Meaning of “ property.” Fidelity & Deposit Co. v. Arenz, 66. 14. Id. Meaning of “unlawfully obtained” and “fraudulently obtained.” Factor v. Laubenheimer, 276. 15. Id. Meaning of “ Indian country.” U.S. v. Chavez, 357. STOCKYARDS. See Constitutional Law, III, 1. SUBSTITUTION. See Abatement, 1. SUPPLEMENTAL BILL. See Jurisdiction, I, 2. 730 INDEX. SURETIES. See Bankruptcy, 2. SURVIVAL. See Abatement, 1-2; Actions. TARIFF LAWS. See Constitutional Law, V. TAXATION. See Constitutional Law, VI, 1; Evidence, 1. I. In General. II. Federal Taxation. III. State Taxation. I. In General. 1. Construction of Taxing Acts. See Alexander v. Cosden Co., 484. 2. Incidence of Tax. Cessation of decedent’s interest in property held jointly with another was proper occasion for imposition of tax. Griswold v. Helvering, 56. II. Federal Taxation. 1. Income Tax. Deductions. “ Ordinary and necessary expenses” of business; how determined; findings of Commissioner presumptively correct. Welch v. Helvering, 111. 2. Id. Income of trust estate distributed to beneficiaries; widow electing to take income from trust in lieu of dower as “beneficiary”; annuity payment not dependent on income was not deductible. Helvering v. Butterworth, 365. 3. Estate Tax. Half the value of property held by decedent and another as joint tenants was properly included in gross estate under Revenue Act of 1921. Griswold v. Helvering, 56. 4. Excise Taxes. Tax on transportation of oil by pipe-line; computation under 1917 and 1918 Acts. Alexander v. Cosden Co., 484. III. State Taxation. 1. Federal Lands. State tax on lands owned by the United States is void. Mullen Benevolent Corp. v. UB., 89. 2. Situs. State tax on livestock purchased and held at stock-yards by trader for resale, valid. Minnesota n. Blasius, 1. 3. Id. Jurisdiction of State to tax fleet of tank cars employed in several States. Johnson Oil Co. v. Oklahoma, 158. 4. Exemptions. Lands purchased by guardian of veteran with funds received under Veterans’ Act, not exempt. Trotter n. Tennessee, 354. 5. Oleomargarine Tax. Kentucky statute invalid under state constitution as prohibiting sale. Glenn v. Field Packing Co., 177. TENANTS BY ENTIRETY. See Constitutional Law, VI, 1; Taxation, II, 3. INDEX. 731 TORTS. See Abatement, 2; Employers’ Liability Act; Negligence. Concurrent Torts. Liability. Defendant whose negligence concurred with third person to cause injury was liable as though he alone had caused it. Miller v. Union Pac. R. Co., 227. TOTAL DISABILITY. See War Risk Insurance. TREATIES. See Extradition, 1-3. Construction. See Factor v. Laubenheimer, 276. TRUSTS. Creation. Bondholders’ protective agreement held to have created express trust. Bullard sr. Cisco, 179. TUCKER ACT. See Claims, 1. TURNOVER ORDER. See Bankruptcy, 1. UNITED STATES. See Claims, 1-2. UNLIQUIDATED DAMAGES. Validity of statute allowing interest on claim for. See Funkhouser v. Preston Co., 163. VERDICT. Directed Verdict. Insufficiency of evidence. Lumbra v. U.S., 551; N. W. Pac. R. Co. v. Bobo, 499. VERMONT. See Boundaries. VETERANS’ ACT. See Taxation, III, 4. WARRANTS. See Constitutional Law, V; Searches. WARRANTY. See Admiralty, 3-4. WAR RISK INSURANCE. Contract. Construction. Meaning of, and sufficiency of evidence of, “total permanent disability”; long delay in asserting claim as evidence of lack of merit. Lumbra v. U.S., 551. WILLFULLY. See Criminal Law, 2. WITNESSES. 1. Competency Generally. In federal courts in criminal cases competency determined by common law as modified by changed conditions. Funk v. U.S., 371. 2. Interest. Public Policy. Husband and Wife. Wife held competent witness for defendant in criminal case in federal courts. Id. WORDS AND PHRASES. See Statutes, 12-15. WORLD WAR VETERANS’ ACT. See Taxation, III, 4. O