UNITED STATES REPORTS VOLUME 293 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1934 From October 1,1934 to and Including (In Part) January 7, 1935 ERNEST KNAEBEL REPORTER UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1935 For sale by the Superintendent of Documents, Washington, D. C. - Price $2.50 (Buckram) ERRATA 279 U. S., p. 584, line 20, change “ 274 U. S.” to “ 272 U. S.” 291 U. S., p. 388, line 35, and p. 390, note 4, change “ 69 Ct. Cls. 150; 38 F. (2d) 139;” to “ 77 Ct. Cls. 199.” 292 U. S., p. 624, No. 811, supply “ 291 ” as page number of W. Va. citation. 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. in 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 Abeille Fire Ins. Co., Missouri ex rei., v. Sevier. 585 Abraham & Straus, Inc., Art Metal Works v.......... 596 Abrams v. Van Schaick..................... 188, 522 Acme Card System Co., Remington Rand v........ 622 Activated Sludge, Inc., Milwaukee v.............. 576 Adamos v. New York Life Ins. Co........... 386, 549 Adams v. Champion............................ 547 Aderhold, Capone v............................. 598 Aderhold, Thrasher v........................... 624 Aetna Acceptance Co., Davis v............... 328, 536 Aetna Life Ins. Co. v. Braukman........... 578, 630 Aetna Life Ins. Co., Perron v................ 570 Abies Realty Corp. v. Helvering.............. 611 Aktieselskabet Cuzco v. The Sucarseco........ 552 Alabama, Norris v............................ 552 Alabama, Patterson v......................... 554 Aldrew Oil & Gas Co. v. Alexander.......... 570 Aleograph Co. v. Western Electric Co......... 629 Alexander, Aldrew Oil & Gas Co. v............... 570 Alexander, Bergen Oil & Gas Co. v............ 570 Alexander v. Theleman........................ 581 Alexander Pickering & Co. v. Chinese American Assn...................................... 606 Alfred Hofmann, Inc. v. Textile Machine Works.... 601 Allegan, Consumers Power Co. v................. 586 Allen v. Johnson............................. 572 Alton R. Co., Railroad Retirement Board v.......... 552 Altoona Publix Theatres v. American Tri-Ergon Corp.................................. 528,587 Aluminum Co. v. Bausch Machine Tool Co............. 589 V VI TABLE OF CASES REPORTED. Page Amazon Petroleum Corp. v. Ryan............ 388,539 American Bakeries Co. v. Sumter............... 523 American Compress & Warehouse Co. v. Bender... 607 American Mail Line, Fowler v.................. 556 American Safety Razor Corp., United States v.... 599 American Silk Mills v. Irving Trust Co........ 624 American Steamship Owners Assn., New York & Cuba Mail S. S. Co. v....................... 622 American Surety Co. v. Conroy................. 578 American Surety Co., Pennsylvania Union v...... 575 American Textile Woolen Co. v. Commissioner.... 558 American Title & T. Co. v. Gulf Refining Co....592 American Tri-Ergon Corp., Altoona Theatres v. 528,587 American Tri-Ergon Corp., Paramount Corp, v. 528, 587 American Tri-Ergon Corp., Wilmer & Vincent Corp, v................................. 528,587 American Trust Co., Maryland Casualty Co. v.... 582 Anderson v. Moore............................. 567 Anderson, Posner v........................ 531, 542 Andreas v. Clark.............................. 555 Ängsten, Illinois ex rel. Cobine v............ 629 Annunziato v. United States................... 593 Ansaldo San Giorgio I, The, v. Rheinstrom Co... 551 Ansell, Long v................................. 76 Archbald, Helvering v.............;........... 594 Arkansas Utilities Co. v. Paragould........... 586 Arko Mining Co. v. Ickes...................... 608 Artcraft Silk Hosiery Mills v. Gotham Co...... 595 Art Metal Works v. Abraham & Straus, Inc....... 596 Atkins, White v........................... 537, 634 Atlantic Greyhound Lines v. Metz.............. 562 Atlantic Life Ins. Co., Vaughan v. 589 Atlas Assurance Co., Teal Motor Co. v............ 622 Austin v. Coe................................. 561 Austin Organ Co. v. Hawthorne................. 623 A. W. Perry Inc., Irving Trust Co. v.............. 307 Babson, Helvering v........................... 571 TABLE OF CASES REPORTED. VII Page Baldwin, Borden’s Farm Products Co. v......... 194 Baldwin, Ex parte............................. 523 Baldwin v. G. A. F. Seelig, Inc............... 522 Baldwin, Hegeman Farms Corp, v................ 163 Ball, Eckhardt v.............................. 584 Ballard, Spruill v............................... 625 Baltimore v. Gibbs............................ 559 Baltimore & Carolina Line v. Redman........... 541 Baltimore & Carolina Line, Redman v......... 577 Baltimore & Ohio R. Co. v. DeWald............. 581 Baltimore & Ohio R. Co., Norman v..............546 Baltimore & Ohio R. Co., United States v....... 454 Bandes v. Commissioner........................ 568 Bankers Life Co., Jeffers v................... 618 Bankers Trust Co., United States v............ 548 Bank of Wadesboro, Little v................... 605 Barium, The John J., Detroit Trust Co. v....... 21 Barium, The Thomas, Detroit Trust Co. v........ 21 Barrymore v. Kemp......................... 566, 630 Barrymore v. Weiler....................... 566, 630 Barwise v. Sheppard........................... 527 Bausch Machine Tool Co., Aluminum Co. v...... 589 Becker v. Montgomery Ward & Co................ 559 Beeler, Schumacher v...................... 367, 545 Beemsterboer v. Illinois ex rel. McDonough.... 575, 630 Bekins v. Pacific Savings & Loan Assn......... 557 Bender, American Compress & Warehouse Co. v.... 607 Bennett, Pittsburgh Terminal Coal Corp, v....... i 617 Bergen Oil & Gas Co. v. Alexander............. 570 Berger v. United States....................... 552 Blair, Kulesza v.............................. 593 Bliss, Helvering v............................ 144 Board of Supervisors, Rittersbacher v......... 592 Boera v. The Brenta II........................ 579 Bond & Mortgage Guarantee Co., Jacoby v........ 619 Bonsai (W. R.) & Co., Continental Trust Co. v.... 624 Borden’s Farm Products Co. v. Baldwin......... 194 VIII TABLE OF CASES REPORTED. Page Boss Mfg. Co., Payne Glove Co. v................ 590 Boston & Maine R. Co. v. Hanley................. 597 Boston & Maine R. Co. v. Murphy................. 597 Bowditch, Irving Trust Co. v................ 311,545 Bowers, Farmers’ Loan & Trust Co. v............. 565 Bradford (W. H.) & Co. v. United States.........564 Braukman, Aetna Life Ins. Co. v............ 578, 630 Braukman, New England Mutual L. Ins. Co. v.... 578 Brennan, Sabine Towing Co. v............... 611, 632 Brenta II, The, Boera v......................... 579 Brenta II, The, Dingfelder v.................... 579 British-American Tobacco Co. v. Helvering....... 95 Broderick v. Irving Trust Co.................... 613 Brotherhood of Locomotive Firemen v. Pinkston. 96, 632 Brown v. Commissioner........................... 579 Brown, Ex parte................................. 520 Brown, Helvering v.............................. 570 Buckeye Steamship Co., Spencer Kellogg & Sons v.. 562 Bucyrus-Erie Co., Keystone Driller Co. v........ 539 Bunge, Downers Grove Sanitary District v........ 601 Burdick v. Cochran.............................. 561 Burdick, International Ry. Co. v.................. 559 Busch, Hillmert v............................... 583 Byers Machine Co., Keystone Driller Co. v....... 572 Byllesby (H. M.) & Co. v. Otis.................. 622 California, Gillis v............................. 62 California, Philippo v........................... 614 Campbell v. Chase National Bank.................. 592 Campbell v. Medalie............................. 592 Campbell, U. S. ex rel., v. Hill................ 615 Canadian Pacific Ry. Co., Maxfield v....... 610, 632 Cantor v. Cherry................................ 626 Capone v. Aderhold.............................. 598 Carlsen v. Nebraska............................. 607 Carrollton Excelsior & F. Co. v. N. O. & N. E. R. Co. 581 Cem Securities Corp. v. Commissioner............ 613 Central Iron & Steel Co. v. United States....... 563 TABLE OF CASES REPORTED. IX Page Central Railroad Co. v. Gasser................... 565 Central Railroad Co. v. State Tax Comm’n........ 568 Central Vermont Transportation Co. v. Burning.... 542 Champion, Adams v................................ 547 Chas. H. Lilly Co., I. F. Laucks v............... 573 Charles Nelson Co., McGeorge v................... 554 Chase National Bank, Campbell v................ 592 Chase National Bank v. Chicago, R. I. & P. Ry. Co.. 550 Cherry, Cantor v. . 626 Chesapeake & Del. Steamboat Co. v. The Pennsyl- vania........................................ 575 Chesapeake & Ohio Ry. Co. v. Mears............... 557 Chesebrough Mfg. Co., Old Gold Chemical Co. v.... 599 Chicago Gravel Co., Howard v.................... 577 Chicago Great Western R. Co., U. S. ex rel., v. I. C. C. 545 Chicago & N. W. Ry. Co., Rowley v........ 102, 532, 632 Chicago & N. W. Ry. Co. v. Wilcox Co............. 560 Chicago, R. I. & P. Ry. Co., Chase National Bank v. 550 Chicago, R. I. & P. Ry. Co., Continental Illinois Co. v.......................................... 550 Chicago, R. I. & P. Ry. Co., Harris Trust & S. Bank v. 550 Chicago, R. I. & P. Ry. Co., Mississippi Valley Co. v. 550 Chicago, R. I. & P. Ry. Co., New York Trust Co. v.. 550 Chicago, R. I. & P. Ry. Co., Reconstruction Finance Corp, v. 550 Chicago, St. P., M. & O. Ry. Co., Hensley v...... 593 Chicago, St. P., M. & O. Ry. Co., Swinson v...... 546 Chicago Title & Trust Co. v. Welton.............. 590 Chinese American Cold Storage Assn., Pickering & Co. v.......................................... 606 Christie v. Cleveland Heights.................... 574 C. H. Sprague & Son Co., Helvering v............ 191 Chubb v. Washington.............................. 520 Cincinnati, Cincinnati, N. & C. Ry. Co. v.......... 612 Cincinnati, N. & C. Ry. Co. v. Cincinnati........ 612 Cincinnati, N. & C. Ry. Co. v. Covington......... 612 Cincinnati, N. & C. Ry. Co., Covington v.......... 612 X TABLE OF CASES REPORTED. Page City Bank Farmers Trust Co. v. Commissioner..... 609 City Bank Farmers Trust Co. v. Schnader......... 112 Clark, Andreas v............................... 555 Clark v. Williard.............................. 546 Clarke, United States v........................ 564 Cleveland Automobile Co. v. United States....... 563 Cleveland Heights, Christie v............. 574 Clifton Mfg. Co. v. United States.......... 186, 545 Clinch-Mitchell Construction Co. v. McCullough... 582 Coastwise Transportation Corp. v. Commissioner.. 595 Cobine, Illinois ex ret., v. Angsten........... 629 Cochran, Burdick v............................. 561 Coe, Austin v.................................. 561 Coe Manufacturing Co. v. New York............. 576 Coley & Peterson, Fidelity & Casualty Co. v..... 534 Colgate, Helvering v......................... 144n Collier v. Florida.............................. 622 Colorado Central Power Co., Colorado Comm’n v... 572 Colorado Tax Comm’n v. Colorado Power Co........ 572 Columbian National Life Ins. Co., Greenbaum v.... 616 Commercial Trust Co. v. United States.......... 584 Commissioner, American Textile Woolen Co. v.... 558 Commissioner, Bandes v......................... 568 Commissioner, Brown v.......................... 579 Commissioner, Cem Securities Corp, v........... 613 Commissioner, City Bank Farmers Trust Co. v..... 609 Commissioner, Coastwise Transportation Corp, v... 595 Commissioner, Corning Trust Co. v............... 608 Commissioner, Dixon v.......................... 560 Commissioner, General Gas & Electric Corp, v.... 618 Commissioner, Glaser v......................... 628 Commissioner, Herring v..................... 322,541 Commissioner, Highway Trailer Co. v............ 626 Commissioner, Hollister v...................... 609 Commissioner, Hopkins v........................ 560 Commissioner, Houghton v....................... 608 Commissioner, Kimball v........................ 607 TABLE OF CASES REPORTED. xi Page Commissioner, Mississippi Valley Trust Co. v.. 604, 631 Commissioner, Murphy v........................... 596 Commissioner, Seiberling Rubber Co. v............ 611 Commissioner, Shreveport Producing & Rfg. Co. v.. 616 Commissioner, Smith v............................ 561 Commissioner, Sullivan v......................... 609 Commissioner, Van Wart v....................... 537 Commissioner, Vinton Petroleum Co. v........ 601,633 Commissioner, Warner v........................... 620 Commissioner, Washburn v....................... 578 Commissioner, Witherbee v................... 582,631 Compagnie Française de Navigation v. San Souci... 613 Connecticut Fire Ins. Co., Lowery v.............. 576 Connecticut General Life Ins. Co. v. Maher....... 591 Conroy, American Surety Co. v.................. 578 Consolidated Dairy Products Co. v. Irving Trust Co. 617 Consumers Power Co. v. Allegan................... 586 Container Corp., Process Engineers, Inc. v...... 588 Continental Casualty Co., First National Bank v... 588 Continental Illinois Nat. B. & T. Co. v. Chi., R. I. & P. Ry. Co.................................... 550 Continental National Bank v. National City Bank.. 557 Continental Trust Co. v. W. R. Bonsai & Co....... 624 Cook-O’Brien Construction Co., Maryland Casualty Co. v.......................................... 569 Cooper, Ex parte............................... 524 Cord v. McFie................................. 592 Cornell Steamboat Co. v. Scholl.................. 579 Corning Trust Co. v. Commissioner................ 608 Covington v. Cincinnati, N. & C. Ry. Co.......... 612 Covington, Cincinnati, N. & C. Ry. Co. v......... 612 Crain, Illinois Central R. Co. v................. 607 Creighton, Missouri Pacific R. Co. v-............ 558 Cripe, Pevely Dairy Co. v........................ 598 Crowell, Green v............................... 554 Cunard Steamship Co., Dunklee v.................. 563 Cunningham, Douglas v............................ 551 XII TABLE OF CASES REPORTED. Page Curtis, Ex parte............................... 524 Cusick v. Whipp................................ 623 Cuyuna Mining & Investment Co. v. Ickes.......... 562 Dakin v. Federal Reserve Bank.................. 562 Darby v. Montgomery County National Bank.. 579, 631 Darden v. Nashville, C. & St. L. Ry. Co........ 597 Davis v. Aetna Acceptance Co................ 328, 536 Davis, Martha Bright Farms v................... 531 Davison, U. S. ex ret. Knight v................ 615 Davitt, O’Connor v. 621 Dawson, Texas & Pacific Ry. Co. v............... 580 Department of Labor and Industries, Mattson v... 151 Depen v. Lawyers Title & Guaranty Co........... 619 Derbes v. Helvering............................ 580 Detroit Trust Co. v. The John J. Barium.......... 21 Detroit Trust Co. v. The Thomas Barium.......... 21 DeWald, Baltimore & Ohio R. Co. v.............. 581 Dimick v. Schiedt........................... 474, 536 Dingfelder v. The Brenta II.................... 579 Disney Film Recording Co., Ex parte............ 523 Dittmar, The Perth Amboy No. 3 v............... 588 Dixon v. Commissioner........................ 560 D. N. Morrison Construction Co., Fidelity & C. Co. v........................................ 534 Dobry v. Iowa.................................. 519 Domenech v. National City Bank................. 549 Donnelley v. Helvering......................... 564 Dort v. Helvering........................... 569, 630 Douglas v. Cunningham.......................... 551 Douglas v. Willcuts........................... 626 Downers Grove Sanitary District v. Bunge......... 601 Drainage District, Mercantile-Commerce Bank & T. Co. v........................................ 566 Dunklee v. Cunard Steamship Co................. 563 Durning, Central Vermont Trans. Co. v........... 542 Duty v. Sternberg........................... 470, 542 Duval County, Masters v........................ 559 TABLE OF CASES REPORTED. xm Page E. A. Laboratories, Inc. v. Trico Products Corp.... 594 Eastern Ohio Transport Corp. v. Wheeling....... 616 Eastham, Royal Insurance Co. v................. 557 Eastman Kodak Co. v. Gray...................... 628 Eckhardt v. Ball............................... 584 El Dorado School District, Norphlet School Dist. v.. 633 Elting v. Lancashire Shipping Co............... 594 Embrey, Missouri-K.-T. R. Co. v................ 603 Enelow v. New York Life Ins. Co............ 379,535 Erie R. Co- v. Fritsch......................... 620 Erie R. Co. v. Landau.......................... 620 E. R. Squibb & Sons v. Mallinckrodt Chemical Works....................................... 190 Everglades Drainage District, Ex parte....... 521 Ex parte Baldwin............................... 523 Ex parte Brown................................. 520 Ex parte Cooper.............................. 524 Ex parte Curtis................................ 524 Ex parte Disney Film Recording Co...............523 Ex parte Everglades Drainage District.......... 521 Ex parte Grubbs................................ 521 Ex parte Harrell............................... 527 Ex parte Horowitz.............................. 521 Ex parte Jones................................. 527 Ex parte Mann................................. 524 Ex parte Martin............................... 524 Ex parte Mitchell............................. 521 Ex parte Mooney............................ 529, 535 Ex parte Morgan............................... 521 Ex parte Platek............................... 533 Ex parte Poresky.............................. 527 Ex parte Rubin................................ 521 Ex parte Washington........................... 521 Ex parte Wood.................................. 532 Fake, Poch v................................... 597 Faris v. Helvering........................... 584 Farley v. Seidl................................ 606 XIV TABLE OF CASES REPORTED. Page Farley, Transcontinental & Western Air, Inc. v.... 603 Farley, Wheeler v............................... 526 Farmers’ Loan & Trust Co. v. Bowers............. 565 Federal Reserve Bank, Dakin v................... 562 Fidelity & Casualty Co. v. Coley & Peterson...... 534 Fidelity & Casualty Co. v. Morrison Co......... 534 Fidelity & Deposit Co. v. Peoples Bank.......... 627 Fidelity Mutual Life Ins. Co. v. Merchants Bank.. 593 Fiest, Straus v................................. 571 Firemen’s Insurance Co. v. Follett.............. 618 First National Bank v. Continental Casualty Co.... 588 First National Pictures, Robison v.......... 609, 631 First Wisconsin Nat. Bank, Lerner v............. 543 Fleetway, Inc. v. Public Service Trans. Co....... 626 Florida, Collier v.............................. 622 Florida, Skipper v............................... 517 Florida ex rel. Vetter v. Knott................. 634 Follett, Firemen’s Insurance Co. v.............. 618 Forrest v. Jack................................. 542 Fort, Hoover Motor Express Co. v................ 529 Foster, Jones v................................. 558 Fowler v. American Mail Line.................... 556 Fox, Laing v................................... 525 Fox Film Corp. v. Muller........................ 550 Frederick v. Mutual Bldg. & Investment Co........ 624 Fred W. Mears Heel Co. v. Walley................ 605 Freeman v. United States....................... 621 Fritsch, Erie R. Co. v......................... 620 Fritzinger v. Illinois.......................... 574 Fry, Rosen v. 526 Fullilove v. United States...................... 586 Fulton, Secor v................................. 517 Fulton, Wetzel v............................ 531, 632 Furlaud, McCandless v....................... 67, 632 G. A. F. Seelig, Inc., Baldwin v................... 522 Gardner v. United States........................ 619 Gass v. Wetmore............................. 556, 632 TABLE OF CASES REPORTED. xv Page Gasser, Central Railroad Co. v................. 565 General Gas &' Electric Corp. v. Commissioner... 618 General Motors Acceptance Corp., Int. Finance Corp, v...................................... 579 George v. Victor Talking Machine Co........ 377,544 George E. Warren Corp. v. United States........ 586 Geo. H. Lee Co., Pratt Food Co. v.............. 578 Gibbs, Mayor of Baltimore v.................... 559 Gilinsky Fruit Co., Personal Finance Co. v...... 627 Gilliam v. United States................... 587, 631 Gillis v. California............................ 62 Given, Saunders v.............................. 599 Glaser v. Commissioner......................... 628 Goltra, Warner v............................... 155 Goodman v. Kunkle.............................. 619 Gordon v. O’Brien............................. 553 Gordon v. Ominsky............................. 548 Gordon v. Washington.......................... 553 Gotham Silk Hosiery Co., Artcraft Mills v....... 595 Graham v. Moore................................ 567 Grammer v. Mid-Continent Petroleum Corp.........571 Gray, Eastman Kodak Co. v...................... 628 Great Lakes Transit Corp. v. Norris Grain Co...... 565 Great Northern Ry. Co. v. Sullivan............. 551 Green v. Crowell...............;............... 554 Green, Seabury v. 549 Greenbaum v. Columbian National Life Ins. Co... 616 Gregory v. Helvering....................... 465, 538 Grimes, Sargeant v............................. 568 Grinnell, Helvering v.......................... 543 Grissom, Hilton Lumber Co. v.................... 613 Grubbs, Ex parte............................... 521 Guaranty Trust Co., United States v........ 340, 538 Gulf, M. & N. R. Co. v. Helvering.......... 295, 548 Gulf Refining Co., American Title & Trust Co. v... 592 Guthrie, U. S. ex rel. Knight v................ 615 Hamburg American Line, Schoenamsgruber v........ 547 89995°—35-II XVI TABLE OF CASES REPORTED. Page Hamilton, Rasmussen v.......................... 555 Hamilton v. Regents........................ 245,633 Hammond Clock Co. v. Schiff................ 529, 538 Handy v. Oklahoma ex rel. King............. 610, 631 Hanley, Boston & Maine R. Co. v................. 597 Hansen v. United States........................ 604 Harbison, Helvering v.......................... 144 Hardenbrook v. Landquist....................... 584 Hardin, Illinois Central R. Co. v................. 574 Harnischfeger Corp., Keystone Driller Co. v.... 539 Harrell, Ex parte.............................. 527 Harris v. United States........................ 581 Harris Trust & S. Bank v. Chi., R. I. & P. Ry. Co... 550 Hartford-Empire Co. v. Obear-Nester Glass Co... 625 Hartford-Empire Co., Shawkee Mfg. Co. v......... 600 Hartzell v. United States...................... 621 Hassall (John), Inc. v. Rosenberg.............. 614 Hawthorne, Austin Organ Co. v.................. 623 Hay v. Irving Trust Co......................... 600 Hazen, Neale v................................. 602 Hegeman Farms Corp. v. Baldwin................. 163 Helvering, Ahles Realty Corp, v................ 611 Helvering v. Archbald.......................... 594 Helvering v. Babson............................ 571 Helvering v. Bliss............................. 144 Helvering, British-American Tobacco Co. v....... 95 Helvering v. Brown............................. 570 Helvering v. C. H. Sprague & Son Co............ 191 Helvering v. Colgate.......................... 144n Helvering, Derbes v............................. 580 Helvering, Donnelley v.......................... 564 Helvering, Dort v........................... 569, 630 Helvering, Faris v............................. 584 Helvering, Gregory v........................ 465, 538 Helvering v. Grinnell.......................... 543 Helvering, Gulf, M. & N. R. Co. v.......... 295, 548 Helvering v. Harbison.......................... 144 TABLE OF CASES REPORTED. xvii Page Helvering, Hyman v............................... 570 Helvering v. Inter-Mountain Life Ins. Co.........553 Helvering v. Jones............................... 583 Helvering v. Morgan’s, Inc....................... 121 Helvering, National Paper Products Co. v.... 172,183 Helvering v. Northern Coal Co.................... 191 Helvering, N. W. Pugh Co. v.................... 575 Helvering, Old Mission Cement Co. v......... 298, 544 Helvering v. Oswego & Syracuse R. Co............. 191 Helvering v. Powers.............................. 214 Helvering v. Pryor & Lockhart Co................. 574 Helvering, Roy v....................J......... 580 Helvering, Stafford, Derbes & Roy, Inc. v........ 580 Helvering v. Stockholms Enskilda Bank............. 84 Helvering v. Taylor.......................... 507,543 Helvering, Tricou v.............................. 629 Helvering v. Twin Bell Oil Syndicate....... 312, 540 Helvering v. Union Pacific R. Co........... 282, 535 Helvering, Union Pacific R. Co. v............ 559,630 Helvering v. U. S. Refractories Corp............. 191 Helvering, Upstream Realty Co. v............... 580 Helvering v. Walbridge........................... 594 Helvering v. Wallace............................. 600 Helvering, Wheeling Mold & Foundry Co. v........ 603 Helvering, Wichita State Bank & Trust Co. v...... 562 Helvering, Zellerbach Paper Co. v............ 172,183 Hensley v. Chicago, St. P., M. & O. Ry. Co....... 593 Herndon, Nashville, C. & St. L. Ry. Co. v......... 518 Herring v. Commissioner...................... 322,541 Herzog v. Stern.............................. 597 Hiatt, Wabash Ry. Co. v........................ 560 Highway Trailer Co. v. Commissioner.............. 626 Hill, McNally v......................... ,f...... 131 Hill, Poch v.......... i. 597 Hill, U. S. ex rel. Campbell v................... 615 Hillmert v. Busch................................ 583 Hilton Lumber Co. v. Grissom..................... 613 XVIII TABLE OF CASES REPORTED. Page H. M. Byllesby & Co. v. Otis................... 622 Hoage, Morgan v................................. 606 Hobbs, Wall & Co., Willey v..................... 627 Hofmann (Alfred), Inc., v. Textile Machine Works.. 601 Hogue v. Stricker Land & Timber Co.............. 591 Hollister v. Commissioner....................... 609 Hollow v. Shell Petroleum Corp.................. 573 Holzman, Schwartz v............................. 565 Hoover Motor Express Co. v. Fort................ 529 Hopkins v. Commissioner......................... 560 Horowitz, Ex parte.............................. 521 Houghton v. Commissioner........................ 608 Howard v. Chicago Gravel Co..................... 577 Hudson v. Texas Gulf Sulphur Co................. 617 Hudson Barge Corp., The Perth Amboy No. 3 v...... 588 Hunt v. Western Casualty Co................. 530,537 Hunter v. Zerbst................................ 555 Hutton v. N. Y. Title & Mortgage Co............. 605 Hyman v. Helvering.............................. 570 Ickes, Arko Mining Co. v........................ 608 Ickes, Cuyuna Mining & Investment Co. v......... 562 Ickes, U. S. ex rel. New Mexico v................. 596 Ickes, U. S. ex rel. Shoshone Irrigation District v.... 571 I. F. Laucks, Inc. v. Chas. H. Lilly Co........ 573 Illinois, Fritzinger v. 574 Illinois Central R. Co. v. Crain................ 607 Illinois Central R. Co. v. Hardin............... 574 Illinois Commerce Comm’n v. United States........ 628 Illinois ex rel. Cobine v. Ängsten.............. 629 Illinois ex rel. McDonough, Beemsterboer v... 575, 630 Imperial Coal Sales Co., Virginia v. \. 15 Indiana Farmer’s Guide Pub. Co. v. Prairie Co.................................... 268, 536, 633 Inter-Mountain Life Ins. Co., Helvering v......... 553 International Acceptance Bank, Strongin v....... 575 International Finance Corp. v. G. M. Acceptance Corp.......................................... 579 TABLE OF CASES REPORTED. XIX Page International Ry. Co. v. Burdick...............•.. 559 Interstate Commerce Comm’n, U. S. ex ret. Chicago G. W. R. Co. v................................ 545 Investment Properties Corp. v. Moore............ 611 Investment & Securities Co., Kelliher v............ 519 Iowa, Dobry v................................... 519 Irving Trust Co., American Silk Mills v..........624 Irving Trust Co. v. A. W. Perry, Inc............ 307 Irving Trust Co. v. Bowditch................ 311,545 Irving Trust Co., Broderick v................... 613 Irving Trust Co., Consolidated Dairy Co. v....... 617 Irving Trust Co., Hay v......................... 600 Irving Trust Co., Marshall & Ilsley Bank v...... 590 Irving Trust Co., Reisenwebers, Inc. v.......... 566 Jack, Forrest v. 542 Jacksonville, Wade v............................ 518 Jacoby v. Bond & Mortgage Guarantee Co.......... 619 Jacque, Locke Insulator Corp, v..............---- 585 Jaffray, McLean v............................... 602 Jeffers v. Bankers Life Co...................... 618 Jefferson Standard Life Ins. Co., Stevenson v.... 585 Jennings v. U. S. Fidelity & Guaranty Co........ 543 John Hassal, Inc. v. Rosenberg.................. 614 John J. Barium, The, Detroit Trust Co. v.......... 21 Johnson, Allen v................................ 572 Johnson v. Kansas City.......................... 617 Johnson v. Merchants & Mfrs. Securities Co....... 569 Johnson, Mutual Life Insurance Co. v........ 335, 540 Johnson, Powers v................................ 596 Johnston, Tirrell v............................. 533 Jones, Ex parte................................. 527 Jones v. Foster................................. 558 Jones, Helvering v.............................. 583 Jones, United States v.......................... 566 Jonesboro Compress Co. v. Mente & Co.......... 618 Jorgensen, Oregon-Washington R. & N. Co. v....... 620 Joseph Joseph & Bros. Co. v. United States...... 600 XX TABLE OF CASES REPORTED. Page Jurney v. MacCracken......................... 543 Kagarise v. Railroad Commission............... 527 Kalt-Zimmers Mfg. Co., Marine National Exchange Bank v................................ 357,540 Kansas City, Johnson v........................ 617 Karpay, U. S. ex rel., v. Uhl................ 573 Kelliher v. Investment & Securities Co.........519 Kellogg (Spencer) & Sons v. Buckeye Steamship Co. 562 Kelly v. National City Bank................... 585 Kelly v. New York, C. & St. L. R. Co.......... 595 Kemp, Barrymore v......................... 566, 630 Keystone Driller Co. v. Bucyrus-Erie Co....... 539 Keystone Driller Co. v. Byers Machine Co....... 572 Keystone Driller Co. v. Harnischfeger Corp.*...539 Keystone Driller Co. v. Northwest Eng. Corp.... 539 Kimball v. Commissioner....................... 607 King, Oklahoma ex rel., Handy v........... 610, 631 Knight, U. S. ex rel., v. Davison............. 615 Knight, U. S. ex rel., v. Guthrie............. 615 Knight, U. S. ex rel., v. Leovy............... 615 Knight, U. S. ex rel., v. Mellon.............. 615 Knight, U. S. ex rel., v. Nutty............... 615 Knight, U. S. ex rel., v. Stone............... 615 Knott, Florida ex rel. Vetter v............... 634 Koger, Osgood Co. v......................... 614 Koleff, U. S. ex rel., v. Reynolds............ 590 Kulesza v. Blair.............................. 593 Kunkle, Goodman v............................. 619 Laing v. Fox...........\..................... 525 Lakeshire Cheese Co., Shefford Cheese Co. v.... 616 Lamb, Townshend v............................. 602 Lamborn, Levy-Ward Grocer Co. v............... 567 Lancashire Shipping Co., Elting v................ 594 Landau, Erie R. Co. v........................ 620 Landquist, Hardenbrook v...................... 584 Laucks (I. F.), Inc. v. Chas. H. Lilly Co......573 TABLE OF CASES REPORTED. XXI Page Laurent v. Stites.............................. 612 Lawyers County Trust Co. v. Reichert........... 550 Lawyers Title & Guaranty Co., Depen v........... 619 Layne v. Tribune Co............................ 572 Lee (Geo. H.) Co., Pratt Food Co. v............ 578 Leovy, U. S. ex rel. Knight v.................. 615 Lerner v. First Wisconsin Nat. Bank............ 543 Lesser v. New York......................... 555, 631 Levering & Garrigues Co. v. Morrin............. 595 Levy-Ward Grocer Co. v. Lamborn................ 567 Lido Oil Co., McGinley Corp, v................. 598 Lillard, Lonergan v............................ 615 Lilly (Chas. H.) Co., I. F. Laucks v........... 573 Little v. Bank of Wadesboro.................... 605 Lloyd Sabaudo, S. A., Warshauer v.............. 610 Locke Insulator Corp. v. Jacque................ 585 Lonergan v. Lillard............................ 615 Long v. Ansell.................................. 76 Long v. Michigan............................... 629 Long Beach Co., Ott v....................... 588 Los Angeles County, Rittersbacher v............ 592 Louisiana, Wilson & Co. v...................... 518 Lowery v. Connecticut Fire Ins. Co............. 576 Luckenbach Steamship Co. v. Middleton.......... 577 Lynch v. New York ex rel. Pierson............... 52 Lynch, 134 William Street Co. v................ 526 MacCracken, Jurney v........................... 543 Maher, Connecticut General Life Ins. Co. v........ 591 Mallinckrodt Chemical Works, E. R. Squibb & Sons v....................................... 190 Manhattan Oil Co. v. Mosby..................... 623 Mann, Ex parte................................. 524 Manufacturers’ Finance Co. v. McKey............ 552 Marine National Exchange Bank v. Kalt-Zimmers Co....................................... 357,540 Marlboro Implement Co., Peabody v............ 601 XXII TABLE OF CASES REPORTED. Page Marshall Electric Co. v. Pullman, Inc......... 625 Marshall & Ilsley Bank v. Irving Trust Co....... 590 Martha Bright Farms v. Davis.................. 531 Martin, Ex parte.............................. 524 Martin v. Texas & Pacific Ry. Co.............. 598 Maryland Casualty Co. v. American Trust Co...... 582 Maryland Casualty Co. v. Cook-O’Brien Const. Co. 569 Massachusetts Bonding & Ins. Co. v. U. S. Quarry Tile Co..................................... 623 Masters v. Duval County....................... 559 Matoil Service & Trans. Co., United States v.... 605 Matthews, U. S. Mortgage Co. v............ 232, 549 Mattson v. Dept, of Labor & Industries........ 151 Maurer, Mitchell v........................ 237, 544 Maxfield v. Canadian Pacific Ry. Co....... 610,632 Mayor of Baltimore v. Gibbs................... 559 Maytag Co., Vulcan Manufacturing Co. v........ 553 McCandless v. Furlaud...................... 67, 632 McCrea v. United States....................... 542 McCullough, Clinch-Mitchell Construction Co. v... 582 McCullough v. Smith....................... 228, 536 McCutchan v. United States.................... 568 McDonough, Illinois ex rel., Beemsterboer v.... 575, 630 McDuffie, Pacific Western Oil Co. v........... 568 McDuffie v. Wells Fargo Bank Co............... 626 McFie, Cord v................................. 592 McGeorge v. Charles Nelson Co................. 554 McGinley Corp. v. Lido Oil Co................. 598 McIntosh v. United States..................... 586 McKey, Manufacturers’ Finance Co. v........... 552 McKinlay v. Philadelphia National Bank........ 583 McKinley, National Box Co. v................... 577 McLaughlin v. Pacific Lumber Co........... 351, 538 McLaughlin & Freeman v. United States......... 557 McLean v. Jaffray............................. 602 McNally v. Hill.....................;......... 131 McShane v. United States...................... 610 TABLE OF CASES REPORTED. XXIII Page Mears, Chesapeake & Ohio Ry. Co. v.............>. 557 Mears (Fred W.) Heel Co. v. Walley......... 605 Medalie, Campbell v........................ 592 Meeker, Old Company’s Lehigh v................. 546 Mellon, Standard Nut Margarine Co. v....... 605 Mellon, U. S. ex rel. Knight v............. 615 Mente & Co., Jonesboro Compress Co. v...... 618 Mercantile-Commerce Bank & Trust Co. v. Drainage District................................. 566 Merchants & Manufacturers Securities Co., John- son v569 Merchants & Mechanics Bank, Fidelity Mutual Life Ins. Co. v............................... 593 Merrell v. Pyrites Co................. 604, 632 Merrill v. United States. ................ 627 Metropolitan Life Ins. Co. v. Trapp........ 596 Metz, Atlantic Greyhound Lines v................ 562 Michigan, Long v........................... 629 Michigan, Minchella v...................... 619 Michigan, Wisconsin v.......................... 529 Mid-Continent Petroleum Corp., Grammer v......... 571 Middleton, Luckenbach Steamship Co. v...... 577 Miller v. Pyrites Co................... 604, 632 Miller v. United States.................... 551 Milwaukee v. Activated Sludge, Inc......... 576 Minchella v. Michigan...................... 619 Minneapolis, St. P. & S. S. M. Ry. Co. v. Newberry.. 583 Mississippi Valley Trust Co. v. Chicago, R. I. & P. Ry. Co................................... 550 Mississippi Valley Trust Co. v. Commissioner... 604, 631 Missouri ex rel. Abeille Fire Ins. Co. v. Sevier. 585 Missouri-Kansas-Texas R. Co. v. Embrey..... 603 Missouri-Kansas-Texas R. Co., Texas Steel Co. v.... 594 Missouri Pacific R. Co. v. Creighton....... 558 Missouri Pacific R. Co. v. United States... 524 Mitchell, Ex parte......................... 521 Mitchell v. Maurer..................... 237, 544 XXIV TABLE OF CASES REPORTED. Page Mitchell v. Washington......................... 553 Moncure, Davis & Budweskey, Woodhouse v......... 573 Montgomery v. Terminal Railroad Assn............ 602 Montgomery County National Bank, Darby v.. 579, 631 Montgomery Ward & Co., Becker v................ 559 Mooney, Ex parte........................... 529, 535 Moore, Anderson v.............................. 567 Moore, Graham v. 567 Moore, Investment Properties Corp, v........... 611 Morgan, Ex parte............................... 521 Morgan v. Hoage................................ 606 Morgan’s, Inc., Helvering v.................... 121 Morrin, Levering & Garrigues Co. v............. 595 Morrison v. United States...................... 589 Morrison (D. N.) Construction Co., Fidelity & Cas. Co. v........................................ 534 Morrissey v. United States..................... 566 Morse Dry Dock & R. Co. v. The President Arthur. 615 Mosby, Manhattan Oil Co. v................. 623 Muller, Fox Film Corp, v..................... 550 Murphy, Boston & Maine R. Co. v................ 597 Murphy v. Commissioner......................... 596 Mutual Bldg. & Investment Co., Frederick v...... 624 Mutual Life Insurance Co. v. Johnson....... 335, 540 Nashville, C. & St. L. Ry. Co., Darden v....... 597 Nashville, C. & St. L. Ry. Co. v. Herndon....... 518 Nashville, C. & St. L. Ry. Co. v. Webster...... 533 National Box Co. v. McKinley................... 577 National City Bank, Continental National Bank v.. 557 National City Bank, Domenech v............... 549 National City Bank, Kelly v.................... 585 National Paper Products Co. v. Helvering... 172,183 Neale v. Hazen................................. 602 Nebraska, Carlsen v............................ 607 Nebraska v. Wyoming............................ 523 Nelson (Charles) Co., McGeorge v.............. 554 Newberry, Minneapolis, St. P. & S. S. M. Ry. Co. v. 583 TABLE OF CASES REPORTED. xxv Page New England Mutual Life Ins. Co. v. Braukman.. 578 New Jersey Zinc Co., Singmaster v............. 591 New Liberty Loan & Savings Assn., Nusbaum v.... 563 New Mexico, U. S. ex rei., v. Ickes........... 596 New Orleans & N. E. R. Co., Carrollton Co. v... 581 New York, Coe Manufacturing Co. v............. 576 New York, Lesser v......................... 555, 631 New York, Wohlfeld v.......................... 556 New York, C. & St. L. R. Co, Kelly v.......... 595 New York City, Roberts v....................... 554 New York & Cuba Mail S. S. Co. v. American S. S. Assn........................................ 622 New York ex rei. Pierson, Lynch v.............. 52 New York Life Ins. Co, Adamos v........... 386, 549 New York Life Ins. Co, Enelow v........... 379, 535 New York Life Ins. Co, Trimble v.............. 561 New York Title & Mortgage Co, Hutton v......... 605 New York Title & Mortgage Co, Rees v.......... 619 New York Title & Mortgage Co, Tolfree v......... 619 New York Trust Co. v. Chicago, R. I. & P. Ry. Co.. 550 Nisley Co, Nisley Shoe Co. v..................... 602 Nisley Shoe Co. v. Nisley Co.................. 602 Nord v. United States......................... 576 Norman v. Baltimore & Ohio R. Co.............. 546 Norphlet School District v. El Dorado District. 633 Norris v. Alabama............................. 552 Norris Grain Co, Great Lakes Transit Corp, v... 565 North Carolina, Whitfield v..................... 556 Northern Coal Co, Helvering v.................. 191 Northwest Engineering Corp, Keystone Co. v..... 539 Nusbaum v. New Liberty Loan & S. Assn.......... 563 Nutty, U. S. ex rèi. Knight v................. 615 N. W. Pugh Co. v. Helvering................... 575 Obear-Nester Glass Co, Hartford-Empire Co. v.... 625 O’Brien, Gordon v............................. 553 O’Connor v. Davitt............:............... 621 Ohio, Snypp v................................. 563 XXVI TABLE OF CASES REPORTED. Page Ohio v. United States...................... 528, 627 Oklahoma ex rel. King, Handy v............. 610, 631 Old Company’s Lehigh v. Meeker................ 546 Old Gold Chemical Co. v. Chesebrough Mfg. Co.... 599 Old Mission Cement Co. v. Helvering........ 289, 544 Ominsky, Gordon v............................. 548 134 William Street Co. v. Lynch............... 526 Oregon, United States v....................... 524 Oregon-Washington R. & N. Co. v. Jorgensen...... 620 Orient Insurance Co., Teal Motor Co. v........ 622 Osgood Co. v. Koger........................... 614 Oswego & Syracuse R. Co., Helvering v......... 191 Otis, H. M. Byllesby & Co. v.................. 622 Otis Elevator Co. v. Pacific Finance Corp..... 593 Ott v. Long Beach Co.......................... 588 Pacific Finance Corp., Otis Elevator Co. v...... 593 Pacific Fire Ins. Co. v. Pennsylvania Sugar Co.. 623, 633 Pacific Lumber Co., McLaughlin v........... 351, 538 Pacific Savings & Loan Assn., Bekins v........ 557 Pacific Western Oil Co. v. McDuffie........... 568 Palmer, Ultimo v.............................. 570 Panama Refining Co. v. Ryan................ 388, 539 Paragould, Arkansas Utilities Co. v............... 586 Paramount Publix Corp. v. American Tri-Ergon Corp..................................... 528, 587 Parsons v. Provident Mutual Life Ins. Co...... 582 Patten v. United States...................... 629 Patterson v. Alabama.......................... 554 Payne Glove Co. v. Boss Mfg. Co............... 590 Peabody v. Marlboro Implement Co.............. 601 Penn General Casualty Co. v. Penna, ex rel. Schnader.................................... 547 Pennsylvania v. Williams...................... 547 Pennsylvania, The, Chesapeake & Del. Steamboat Co. v....................................... 575 Pennsylvania ex rel. Schnader, Penn Casualty Co. v. 547 Pennsylvania Slovak Union v. American Surety Co.. 575 TABLE OF CASES REPORTED. XXVII Page Pennsylvania Sugar Co., Pacific Fire Ins. Co. v.. 623, 633 Peoples Bank, Fidelity & Deposit Co. v........... 627 Perron v. Aetna Life Ins. Co..................... 570 Perry (A. W.), Inc., Irving Trust Co. v...........307 Personal Finance Co. v. Gilinsky Fruit Co......... 627 Perth Amboy No. 3, The, v. Dittmar............... 588 Perth Amboy No. 3, The, v. Hudson Barge Corp.... 588 Pevely Dairy Co. v. Cripe........................ 598 Pflueger v. Sherman............................... 55 Philadelphia National Bank, McKinlay v........... 583 Philippo v. California........................... 614 Pickering & Co. v. Chinese American Assn......... 606 Pierson, New York ex ret., Lynch v................ 52 Pinkston, Brotherhood of Firemen v............ 96, 632 Pittsburgh Terminal Coal Corp. v. Bennett........ 617 Platek, Ex parte............................... 533 Poch v. Fake..................................... 597 Poch v. Hill..................................... 597 Poresky, Ex parte................................ 527 Posner v. Anderson........................... 531,542 Powers, Helvering v............................ 214 Powers v. Johnson................................ 596 Prairie Farmer Pub. Co., Indiana Pub. Co. v....... 268, 536, 633 Pratt Food Co. v. Geo. H. Lee Co................. 578 President Arthur, The, Morse Dry Dock & R. Co. v. 615 Process Engineers, Inc. v. Container Corp........ 588 Provident Mutual Life Ins. Co., Parsons v......... 582 Pryor & Lockhart Development Co., Helvering v.... 574 Public Service Trans. Co., Fleetway, Inc. v...... 626 Puckett v. United States......................... 555 Pugh (N. W.) Co. v. Helvering.................... 575 Pullman, Inc., Marshall Electric Co. v........... 625 Pyrites Co., Merrell v....................... 604, 632 Pyrites Co., Miller v........................ 604, 632 Radio Corporation v. Radio Engineering Labs.... 1, 522 Radio Engineering Laboratories, Radio Corp. v... 1, 522 XXVIII TABLE OF CASES REPORTED. Page Railroad Commission, Kagarise v................... 527 Railroad Retirement Board v. Alton R. Co........ 552 Railway Express Agency, Wishnatzki & Nath el v... 532 Rasmussen v. Hamilton............................ 555 Reconstruction Finance Corp. v. Chicago, R. I. & P. Ry. Co......................................... 550 Redman v. Baltimore & Carolina Line............... 577 Redman, Baltimore & Carolina Line v............... 541 Rees v. New York Title & Mortgage Co.............. 619 Regain, Inc., Woods v............................. 601 Regents, Hamilton v...... i............... . 245, 633 Reichert, Lawyers County Trust Co. v.............. 550 Reisenwebers, Inc. v. Irving Trust Co............. 566 Remington Rand Business Service v. Acme Co.... 622 Reynolds, U. S. ex rel. Koleff v.................. 590 Rheinstrom Bros. Co., Ansaldo San Giorgio I v.... 551 Rittersbacher v. Board of Supervisors............. 592 Roberts v. New York City.......................... 554 Robison v. First National Pictures.......... 609, 631 Rogers, Strong v................................ 621 Rosen v. Fry.................................... 526 Rosenberg, Hassall, Inc. v........................ 614 Rowley v. Chicago & N. W. Ry. Co........ 102, 532, 632 Roy v. Helvering................................ 580 Royal Insurance Co. v. Eastham.................. 557 Rubin, Ex parte. 521 Ryan, Amazon Petroleum Corp, v.............. 388, 539 Ryan, Panama Refining Co. v................. 388, 539 Sabine Towing Co. v. Brennan................ 611, 632 San Francisco Shopping News Co. v. So. San Francisco ......................................... 606 San Souci, Compagnie Française de Navigation v.. 613 Sargeant v. Grimes................................ 568 Saunders v. Given................................. 599 Schiedt, Dimick v.......................... 474, 536 Schiff, Hammond Clock Co. v................ 529,538 Schleier v. United States......................... 607 TABLE OF CASES REPORTED. XXIX Page Schnader, City Bank Farmers Trust Co. v......... 112 Schnader, Pennsylvania ex rel., Penn Casualty Co. v. 547 Schnell v. The Vallescura.................. 296, 539 Schoenamsgruber v. Hamburg American Line......... 547 Scholl, Cornell Steamboat Co. v................. 579 Schumacher v. Beeler....................... 367, 545 Schwartz v. Holzman............................. 565 Seabury v. Green................................ 549 Seagraves, Wallace v........................ 569,630 Secor v. Fulton................................. 517 Seelig (G. A. F.), Inc., Baldwin v.............. 522 Seiberling Rubber Co. v. Commissioner........... 611 Seidl, Farley v................................ 606 Sevier, Missouri ex rel. Abeille Fire Ins. Co. v.585 Shanferoke Coal Corp. v. Westchester Service Corp. 449, 541, 567 Shawkee Mfg. Co. v. Hartford-Empire Co........... 600 Shefford Cheese Co. v. Lakeshire Cheese Co....... 616 Shell Petroleum Corp., Hollow v................ 573 Shelton v. United States........................ 574 Sheppard, Barwise v............................. 527 Sheridan, Silver Brown Co. v.................... 590 Sherman, Pflueger v.............................. 55 Shoshone Irrigation District, U. S. ex rel., v. Ickes.. 571 Shreveport Producing & Rfg. Co. v. Commissioner.. 616 Shubert Theatre Corp., Wiren v.............. 591, 631 Silver Brown Co. v. Sheridan.................... 590 Simpson v. Stern................................ 628 Singmaster v. New Jersey Zinc Co................ 591 Skelly Oil Co. v. Universal Oil Products Co...... 612 Skipper v. Florida.............................. 517 Smead, Wingert v........................... 558, 567 Smith v. Commissioner............................561 Smith, McCullough v......................... 228,536 Smith v. Snow................................ 537 Smith, United States v. 633 Smith, Waxham v.............................. 537 XXX TABLE OF CASES REPORTED. Page Snow, Smith v................................... 537 Snypp v. Ohio................................... 563 South San Francisco, S. F. Shopping News Co. v... 606 Spaulding, United States v. \. 498, 540 Spencer Kellogg & Sons v. Buckeye Steamship Co... 562 Sprague (C. H.) & Son Co., Helvering v........... 191 Spruill v. Ballard.............................. 625 Spruill v. Supreme Court D. of C................ 625 Squibb (E. R.) & Sons v. Mallinckrodt Chemical Works......................................... 190 Stafford, Derbes & Roy, Inc. v. Helvering....... 580 Stalcup v. Stalcup.............................. 614 Stalcup, Stalcup v............................. 614 Standard Nut Margarine Co. v. Mellon............ 605 Standard Oil Co. v. Standard Oil Co............. 620 Standard Oil Co., Standard Oil Co. v............ 620 Standard Oil Co. v. United States............... 599 State Tax Comm’n, Central Railroad Co. v......... 568 Stern, Herzog v................................ 597 Stem, Simpson v................................. 628 Sternberg, Duty v.......................... 470,542 Sternberg, Taylor v........................... 470, 542 Stevenson v. Jefferson Standard Life Ins. Co..... 585 Stites, Laurent v............................... 612 Stockholms Enskilda Bank, Helvering v............ 84 Stone, U. S. ex rel. Knight v................... i.. 615 Straus v. Fiest........................•.........571 Stricker Land & Timber Co., Hogue v............. 591 Strong v. Rogers................................ 621 Strongin v. International Acceptance Bank........ 575 Sucarseco, The, Aktieselskabet Cuzco v........ 552 Sullivan v. Commissioner........................ 609 Sullivan, Great Northern Ry. Co. v............... 551 Sumter, American Bakeries Co. v................. 523 Supreme Court D. of C., Spruill v............... 625 Swinson v. Chicago, St. P., M. & O. Ry. Co....... 546 Taylor, Helvering v......................... 507, 543 TABLE OF CASES REPORTED. XXXI Page Taylor v. Sternberg........................ 470,542 Teal Motor Co. v. Atlas Assurance Co........... 622 Teal Motor Co. v. Orient Insurance Co.......... 622 Tennessee ex rel. Wallace, Van Deventer v........ 581 Terminal Railroad Assn., Montgomery v.......... 602 Texas Employers’ Ins. Assn. v. Volek........... 598 Texas Gulf Sulphur Co., Hudson v............... 617 Texas & New Orleans R. Co. v. Webster....... 580, 630 Texas & Pacific Ry. Co. v. Dawson.............. 580 Texas & Pacific Ry. Co., Martin v.............. 598 Texas Steel Co. v. Missouri-K.-T. R. Co.........594 Textile Machine Works, Alfred Hofmann, Inc. v.... 601 Theleman, Alexander v.......................... 581 Thomas Barium, The, Detroit Trust Co. v......... 21 Thrasher v. Aderhold............................. 624 Threlkeld v. United States....................... 620 Tirrell v. Johnston.............................. 533 Tolfree v. New York Title & M. Co.............. 619 Townshend v. Lamb................................ 602 Transcontinental & Western Air, Inc. v. Farley.... 603 Trapp, Metropolitan Life Ins. Co. v.............. 596 Tribune Co., Layne v............................ 572 Trico Products Corp., E. A. Laboratories, Inc. v... 594 Tricou v. Helvering............................ 629 Trimble v. New York Life Ins. Co............... 561 Troy, United States v........................... 58 Twin Bell Oil Syndicate, Helvering v.......... 312, 540 Uhl, U. S. ex rel. Karpay v.................... 573 Ultimo v. Palmer.............................. 570 Union Pacific R. Co. v. Helvering........... 559, 630 Union Pacific R. Co., Helvering v........... 282, 535 Union Trust Co., United States v............... 564 United States v. American Safety Razor Corp.... 599 United States, Annunziato v........... i......... 593 United States v. Baltimore & Ohio R. Co........ 454 United States v. Bankers Trust Co.............. 548 United States, Berger v......................... 552 89995°—35-----ni XXXII TABLE OF CASES REPORTED Page United States, Bradford & Co. v.................. 564 United States, Central Iron & Steel Co. v......... 563 United States v. Clarke.......................... 564 United States, Cleveland Automobile Co. v.........563 United States, Clifton Mfg. Co. v............ 186, 545 United States, Commercial Trust Co. v............ 584 United States, Freeman v......................... 621 United States, Fullilove v....................... 586 United States, Gardner v......................... 619 United States, George E. Warren Corp, v......... 586 United States, Gilliam v..................... 587, 631 United States v. Guaranty Trust Co........... 340, 538 United States, Hansen v........................ 604 United States, Harris v.......................... 581 United States, Hartzell v........................ 621 United States, Illinois Commerce Comm’n v......... 628 United States v. Jones......................... 566 United States, Joseph Joseph & Bros. Co. v........ 600 United States v. Matoil Service & Trans. Co....... 605 United States, McCrea v........................ 542 United States, McCutchan v....................... 568 United States, McIntosh v........................ 586 United States, McLaughlin & Freeman v........... 557 United States, McShane v....................... 610 United States, Merrill v......................... 627 United States, Miller v.......................... 551 United States, Missouri Pacific R. Co. v........... 524 United States, Morrison v....................... 589 United States, Morrissey v....................... 566 United States, Nord v............................ 576 United States, Ohio v........................ 528, 627 United States v. Oregon.......................... 524 United States, Patten v...... 629 United States, Puckett v......................... 555 United States, Schleier v....................... 607 United States, Shelton v......................... 574 TABLE OF CASES REPORTED. XXXIII Page United States v. Smith......................... 633 United States v. Spaulding.................. 498, 540 United States, Standard Oil Co. v.............. 599 United States, The Yulu v...................... 589 United States, Threlkeld v..................... 620 United States v. Troy........................... 58 United States v. Union Trust Co.................564 United States, Vanderlip v..................... 588 United States, Vineyard v...................... 614 United States, Warren Steam Pump Co. v........... 610 United States, W. H. Bradford & Co. v.......... 564 United States, Whitney- v........................ 584 United States, Wilber National Bank v........... 541 United States v. Youngstown Sheet & Tube Co......599 United States, Yulu, The, v...................... 589 U. S. ex rel. Campbell v. Hill................. 615 U. S. ex rel. Chicago G. W. R. Co. v. Interstate Commerce Comm’n................................... 545 U. S. ex rei. Karpay v. Uhl.................... 573 U. S. ex rel. Knight v. Davison................ 615 U. S. ex rel. Knight v. Guthrie................ 615 U. S. ex rel. Knight v. Leovy.................. 615 U. S. ex rel. Knight v. Mellon................. 615 U. S. ex rel. Knight v. Nutty.................. 615 U. S. ex rel. Knight v. Stone.................. 615 U. S. ex rel. Koleff v. Reynolds............... 590 U. S. ex rel. New Mexico v. Ickes.............. 596 U. S. ex rel. Shoshone Irrigation Dist. v. Ickes.571 U. S. Fidelity & Guaranty Co., Jennings v......... 543 U. S. Fidelity & Guaranty Co., Waco v.......... 140 U. S. Mortgage Co. v. Matthews.............. 232, 549 U. S. Quarry Tile Co., Mass. Bonding & Ins. Co. v.. 623 U. S. Refractories Corp., Helvering v.......... 191 Universal Oil Products Co., Skelly Oil Co. v..... 612 University of California, Hamilton v........ 245, 633 Upstream Realty Co. v. Helvering............... 580 XXXIV TABLE OF CASES REPORTED. Page Vallescura, The, Schnell v................. 296,539 Vanderlip v. United States..................... 588 Van Deventer v. Tennessee ex rel. Wallace...... 581 Van Schaick, Abrams v...................... 188, 522 Van Wart v. Commissioner....................... 537 Vaughan v. Atlantic Life Ins. Co............... 589 Vetter, Florida ex rel., v. Knott.............. 634 Victor Talking Machine Co., George v........ 377, 544 Vineyard v. United States...................... 614 Vinton Petroleum Co. v. Commissioner....... 601, 633 Virginia v. Imperial Coal Sales Co.............. 15 Volek, Texas Employers’ Ins. Assn, v........... 598 Vulcan Manufacturing Co. v. Maytag Co.......... 553 Wabash Ry. Co. v. Hiatt........................ 560 Waco v. U. S. Fidelity & Guaranty Co........... 140 Wade v. Jacksonville........................... 518 Wadesboro, Bank of, Little v................... 605 Wadsworth Electric Mfg. Co. v. Westinghouse Co... 604 Walbridge, Helvering v.......................... 594 Wallace, Helvering v............................ 600 Wallace v. Seagraves....................... 569, 630 Wallace, Tennessee ex rel., Van Deventer v...... 581 Walley, Fred W. Mears Heel Co. v............... 605 Warner v. Commissioner......................... 620 Warner v. Goltra............................... 155 Warren (George E.) Corp. v. United States....... 586 Warren Steam Pump Co. v. United States..........610 Warshauer v. Lloyd Sabaudo, S. A............... 610 Washburn v. Commissioner....................... 578 Washington, Chubb v........................... 520 Washington, Ex parte........................... 521 Washington, Gordon v........................... 553 Washington, Mitchell v......................... 533 Waxham v. Smith................................ 537 Webster, Nashville, C. & St. L. Ry. Co. v...... 533 Webster, Texas & N. O. R. Co. v.............. 580, 630 TABLE OF CASES REPORTED. XXXV Page Weiler, Barrymore v........................ 566,630 Wells Fargo Bank & Union T. Co., McDuffie v.... 626 Welton, Chicago Title & Trust Co. v............ 590 Westchester Service Corp., Shanferoke Coal Corp. v.................................... 449, 541, 567 Western Casualty Co., Hunt v............... 530,537 Western Electric Co., Aleograph Co. v.......... 629 Westinghouse Electric Co., Wadsworth Electric Mfg. Co. v........................................ 604 Wetmore, Gass v............................ 556, 632 Wetzel v. Fulton........................... 531,632 W. H. Bradford & Co. v. United States...........564 Wheeler v. Farley.............................. 526 Wheeling, Eastern Ohio Transport Corp, v....... 616 Wheeling Mold & Foundry Co. v. Helvering........ 603 Whipp, Cusick v................................ 623 White v. Atkins............................ 537, 634 Whitfield v. North Carolina.................... 556 Whitney v. United States....................... 584 Wichita State Bank & Trust Co. v. Helvering..... 562 Wilber National Bank v. United States.......... 541 Wilcox Co., Chicago & N. W. Ry. Co. v............ 560 Willcuts, Douglas v............................. 626 Willey v. Hobbs, Wall & Co..................... 627 Williams, Pennsylvania v....................... 547 Williard, Clark v.............................. 546 Wilmer & Vincent Corp. v. American Tri-Ergon Corp..................................... 528,587 Wilson & Co. v. Louisiana...................... 518 Wingert v. Smead........................... 558, 567 Wiren v. Shubert Theatre Corp.............. 591,631 Wisconsin v. Michigan.......................... 529 Wishnatzki & Nathel v. Railway Express Agency... 532 Witherbee v. Commissioner.................. 582,631 Wohlfeld v. New York........................... 556 Wood, Ex parte..................................532 xxxvi TABLE OF CASES REPORTED. Page Woodhouse v. Moncure, Davis & Budweskey......573 Woods v. Regain, Inc......................... 601 W. R. Bonsai & Co., Continental Trust Co. v.. 624 Wyoming, Nebraska v.......................... 523 Youngstown Sheet & Tube Co., United States v.... 599 Yulu, The, v. United States.................. 589 Zellerbach Paper Co. v. Helvering........ 172,183 Zerbst, Hunter v............................. 555 TABLE OF CASES Cited, in Opinions Page. Abbotsford, The, 98 U. S. 440 ................... 489 Acme Harvester Co. v. Beek- man Lumber Co., 222 U. S. 300 ................ 472 Adams Express Co. v. Ohio, 165 U. S. 194.......... 19 Adams Express Co. v. Ohio, 166 U. S. 185....... 20,109 Aetna Ins. Co. v. Hyde, 275 > U.S. 440........... 170,203 Aetna Life Ins. Co. v. Moore, 231 U. S. 543............ 340 Air-Way Electric Corp. v. Day, 266 U. S. 71....20,210 Akron, C. & Y. Ry. Co. v. United States, 2 8 4 U. S. 575................. 525 Alabama v. United States, 279 U. S. 229 ......... 522 Alabama v. United States, 283 U. S. 776.......... 464 Allen v. Arguimbau, 198 U. S. 149.................. 55 Alpha Portland Cement Co. v. Massachusetts, 268 U. S. 203................. 20 Aluminum Castings Co. v. Routzahn, 282 U. S. 92... 284 Al ward v. Johnson, 282 U. S. 509................. 533 Ambrosini v. United States, 187 U. S. 1............ 225 American Cyanamid Co. v. Wilson & Toomer Co., 62 F. (2d) 1018 ...... 383,384 American Fire Ins. Co. v. King Lumber Co., 250 U. S. 2 .............. 534,535 Page. American Fur Co. v. United States, 2 Pet. 358....... 94 American Mills Co. v. American Surety Co., 260 U. S. 360.................. 385 American Railway Express Co. v. Kentucky, 273 U. S. 269.................. 517 American Savings Bank & T. Co. v. Helgesen, 64 Wash. 54...................... 364 American Steel Foundries v. Tri-City Council, 257 U. S. 184.................. 413 American Sugar Rfg. Co. v. Louisiana, 179 U. S. 89... 525 American Viscose Corp. v. Commissioner, 56 F. (2d) 1033...................87, 89 Anderson v. Rountree, 1 Pin-ney (Wis.) 115............ 82 Andrews Bank v. Gudger, 212 Fed. 49 ............. 473 Anglo-Chilean Corp. v. Alabama, 288 U. S. 218....... 20 Appalachian Coals, Inc. v. United States, 288 U. S. 344..................... 280 Archerd v. Oregon, 290 U. S. 604 ......... 517,519,520 Arkansas Cattle Co. v. Mann, 130 U. S. 69 .... 483, 485,488,493 Armour & Co. v. Virginia, 246 U. S. 1.............. 523 Arnold Constable Corp. v. Commissioner, 69 F. (2d) 788..................... 123 Aspasia, The, 79 Fed. 91.... 306 XXXVII XXXVIII TABLE OF CASES CITED. Page. Assigned Car Cases, 274 U. S. 564 ................... 525 Atkins v. United States, 63 App. D. C. 164............ 507 Atlanta Casket Co. v. Rose, 22 F. (2d) 800.......... 515 Atlantic Bank & T. Co. v. Commissioner, 59 F. (2d) 363....................... 515 Atlantic City Electric Co. v. Commissioner, 288 U. S. 152 ...................... 291 Atlantic Cleaners & Dyers v. United States, 286 U. S. 427.................... 87, 88 Atlantic & Pacific Tel. Co. v. Philadelphia, 190 U. S. 160. 19 Aurora, The, 7 Cranch 382.. 423 Austin Machinery Co. v. Buckeye Co., 13 F. (2d) 697 ........................ 8 Austrian Lloyd S. S. Co. v. Gresham Life Assur. Society, [1903] 1 K. B. 249.. 453 Autosales Corp. v. Commissioner, 43 F. (2d) 931.... 515 Avent v. United States, 266 U. S. 127 ................ 427 Ayers v. Watson, 137 U. S. 584 .................. 489 Babington v. Yellow Taxi Corp., 250 N. Y.14.........265 Baldwin v. Missouri, 281 U. S. 586 .................... 19 Ballard v. Hunter, 204 U. S. 241.................... 519 Balsa, The, 10 F. (2d) 408 ................... 157,158 Baltimore & Ohio R. Co. v. Groeger, 266 U. S. 521.... 463 Bankers Pocahontas Coal Co. v. Burnet, 287 U. S. 308... 324 Bank of California v. National City Co., 138 Wash. 517....................... 363 Barbed Wire Patent, The, 143 U. S. 275............. 7 Barbour & Co. v. Deutsche Bank, L. R. [1919] A. C. 304 ..................... 481 Barchard v. Kohn, 157 Ill. 579 .................... 334 Page. Bardes v. Hawarden Bank, 178 U. S. 524........... 371, 372,373,375 Barker Co. v. Painters’ Union, 281 U. S. 462..... 413 Barr v. Gratz, 4 Wheat. 213. 489 Barrett v. Virginian Ry. Co., 250 U. S. 473............ 518 Bartlett v. Blair, 68 N. H. 232 82 Beardmore v. Carrington, 2 Wils. 244 ................. 479 Beaumont, S. L. & W. Ry. Co. v. United States, 282 U. S. 74 .................... 447 Becker v. United States, 21 F. (2d) 1003 ............... 515 Beebe v. Russell, 19 How. 283 ..................... 378 Beechwood, The, 35 F. (2d) 41....................... 453 Beidler v. Tax Commission, 282 U. S. 1............. 19 Belfast, The, 7 Wall. 624.. 44 Belt v. Lawes, L. R. 12 Q. B. D. 356.................. 480, 494,495,496,497 Beneficial Loan Assn. v. Hil- lery, 95 N. J. L. 271.... 348 Bergholm v. Peoria Life Ins. Co., 284 U. S. 489....... 338 Beriet v. Weary, 67 Neb. 75. 82 Bernheimer v. Converse, 206 U. S. 516................. 76 Berry v. Lamar Life Ins. Co., 165 Miss. 405 ........... 338 Bessette v. Conkey Co., 194 U. S. 324................. 66 Bethulia, The, 200 Fed. 876. 162 Blackheath, The, 195 U. S. 361....................... 45 Block v. Hirsh, 256 U. S. 135. 212 Blodgett v. Silberman, 277 U. S. 1.................. 19,121 Bloomingdale v. Dreher, 31 F. (2d) 93............... 334 Blow v. United States, 5 F. Supp. 737................ 146 Bluefields S. S. Co. v. Steele, 184 Fed. 584............. 243 Blumenstock Bros. v. Curtis Publishing Co., 252 U. S. 436 ............. 274, 275, 276 TABLE OF CASES CITED. XXXIX Page. Blunt v. Little, 3 Mason 102 ................... 482,493 Board of Trustees v. United States, 289 U. S. 48 ... 225 Bogart v. The John Jay, 17 How. 399........... 32,47,49 Bollman, Ex parte, 4 Cranch 75...................... 136 Bolton v. Martin, 1 Dall. 296. 82 Bond v. Hume, 243 U. S. 15. 347 Bonded Mortgage Co. v. Commissioner, 70 F. (2d) 341 .................... 283 Boom Co. v. Patterson, 98 U. S. 403.................. 109 Boonville Nat. Bank v. Bla- key, 107 Fed. 891....... 371 Booth v. Clark, 17 How. 322 ............. 69,75,76,241 Boston v. Jackson, 260 U. £>. 309 .................... 222 Boston v. Treasurer & Receiver General, 237 Mass. 403 ................. 222 223 Bound Brook, The, 146 Fed. 160..................... 158 Bowe v. Scott, 233 U. S. 658. 519 Boyce v. Brockway, 31 N. Y. 490 .................... 332 Branson v. Bush, 251 U. S. 182..................... 109 Brass Crosby’s Case, 3 Wils. 189..................... 138 Brine v. Insurance Co., 96 U. S. 627...........:...... 366 Britton v. The Venture, 21 Fed. 928................. 32 Brooklyn City R. Co. v. New York, 199 U. S. 48........ 109 Brooks-Scanlon Corp. v. United States, 265 U. S. 106.................... 109 Brown v. Houston, 114 U. S. 622 .................... 120 Brown v. Pacific Mutual Life Ins. Co., 62 F. (2d) 711... 384 Brown v. Seymour, 1 Wils. 5. 477 Brown-Forman Co. v. Kentucky, 217 U. S. 563... 525 Brownlow v. Schwartz, 261 U. S. 216............... 530 Buckingham v. Estes, 128 Fed. 584................. 73 Page. Buena Ventura, The, 243 Fed. 797 .................. 157,158 Burchfield, In re, 31 F. (2d) 118....................... 332 Burnet v. Aluminum Goods Co., 287 U. S. 544. 291,292,355 Burnet v. Harmel, 287 U. S. 103 .................. 324,325 Burnet v. Houston, .283 U. S. 223 ...................... 514 Burnet v. Sanford & Brooks Co., 282 U. S. 359......... 126 Burnet v. Thompson Oil & Gas Co., 283 U. S. 301.... 327 Burns Bros., No. 31, The, 29 F. (2d) 855................ 157 Burns Mortgage Co. v. Fried, 292 U. S. 487 ......... 363,366 Burton v. Baynes, Barnes Practice Cases, 153........ 477 Bush v. Elliott, 202 U. S. 477. 375 Butler v. Boston & Savannah S. S. Co., 130 U. S. 527.... 43 Butterworth v. Hoe, 112 U S. 50........................ 4 Buttfield v. Stranahan, 192 U. S. 470....... 426,443 Butts, In re, 120 Fed. 966... 334 Cable v. U. S. Life Ins. Co., 191 U. S. 288............. 385 Cahill v. Biddle, 13 F. (2d) 827 ...................... 140 California v. San Pablo & T. R. Co., 149 U. S. 308.. 189,413 California Paving Co. v. Molitor, 113 U. S. 609........ 58 Cantrell v. Wallick, 117 U. S. 689 ........................ 7 Cap Blanco, The, [1913] Pro. Div. 130....................453 Carpenter v. Providence Washington Ins. Co., 16 Pet. 495................... 340 Carpenter v. Rannels, 19 Wall. 138 ................. 446 Carter v. Snook, 28 F. (2d) 609 ...................... 139 Carter v. Wells, Fargo & Co., 64 Fed. 1005.............. 487 Cary v. Domestic Spring-Bed Co., 27 Fed. 299............. 9 Castillo v. McConnico, 168 U. S. 674.................. 519 XL TABLE OF CASES CITED. Page. Catlett v. Morton, 4 Litt. (Ky.) 122............... 82 Can v. Texas & Pacific Ry. Co., 194 U. S. 427....... 305 Central Kentucky Gas Co. v. Railroad Comm’n, 290 U. S. 264................... 112 Central Nat. Bank v. Stevens, 169 U. S. 432........... 453 Central Trust Co. v. St. Louis, A. & T. Ry. Co., 40 Fed. 426................. 65 Chapin v. Fye, 179 U. S. 127. 520 Chapman v. Forsyth, 2 How. 902 2JJ3 Charles Rohde, The, 8 F. (2d) 506................ 307 Chastleton Corp. v. Sinclair, 264 U. S. 543............ 211 Cheever v. Pittsburgh, S. & L. E. R. Co., 150 N. Y. 59. 364 Chelentis v. Luckenbach S. S. Co., 247 U. S. 372..... 45,158 Cherokee Intermarriage Cases, 203 U. S. 76...... 439 Chesapeake & Ohio Ry. Co. v. Thompson Mfg. Co., 270 U.S. 416................. 305 Chicago, B. & Q. Ry. Co. v. Williams, 205 U. S. 444.... 58 Chicago & E. I. R. Co. v. Col- lins Co, 249 U. S. 186.... 304 Chicago G. W. Ry. Co. v. Kendall, 266 U. S. 94.... Ill Chicago, I. & L. Ry. Co. v. McGuire, 196 U. S. 128... 519 Chicago Junction Case, 264 U. S. 258........ 447,458,463 Chicago, M, St. P. & P. R. Co. v. Risty, 276 U. S. 567...................... 366 Chicago. M. & St. P. Ry. Co. v. Tompkins, 176 U. S. 167.................. 213, 281 Chicago & N. W. Ry. Co. v. Eveland, 13 F. (2d) 442.. 110 Chicago, R. I. & P. Ry. Co. v. Commissioner, 47 F. (2d) 990................. 283 Chicago, R. I. & P. Ry. Co. v. Devine, 239 U. S. 52... 258 Cincinnati v. Vester, 281 U. S. 439.................. 190 Page. Cincinnati, I. & W. R. Co. v. Indianapolis Union Ry. Co, 270 U. S. 107 ...... 243 Cincinnati, W. & Z. R. Co. v. Commissioners, 1 Ohio St. 88...................... 426 Citrus Soap Co. v. Lucas, 42 F. (2d) 372............. 515 City Bank Farmers Trust Co. v. Schnader, 291 U. S. 24...................... 117 Clair v. Colmes, 245 Mass. 281......................... 333 Clark v. Barnwell, 12 How. 272 ................... 304, 305 Clark v. Sidway, 142 U. S. 682 ................... 493, 494 Clark v. Williard, 292 U. S. 112 ................... 76 Clarke v. Deckebach, 274 U. S. 392.............. 209,210 Cleveland, C, C. & St. L. Ry. Co. v. Backus, 154 U. S. 439..................... 109 Cleveland-Cliffs Iron Co. v. Arctic Iron Co, 248 U. S. 178...................... 58 Cleveland & Pittsburgh R. Co. v. Cleveland, 235 U. S. 50................... 520 Cleveland Terminal & V. R. Co. v. Steamship Co, 208 U. S. 316................ 44 Clifton, The, 143 Fed. 460.. 32 Closter Nat. Bank v. Federal Reserve Bank, 285 Fed. 138 .................... 350 Coal & Iron Ry. Co. v. Reherd, 204 Fed. 859........... 75 Cochran v. United States, 254 U. S. 387............... 356 Coffin v. Ogden, 18 Wall. 120........................... 7 Collector v. Day, 11 Wall. 113 ................... 225 Collin v. Commissioner, 32 F. (2d) 753.................... 515 Colson v. Aderhold, 5 F. Supp. Ill............... 140 Comer v. Washington, 292 U. S. 610.................. 517 TABLE OF CASES CITED. XLI Page. Commercial Bank v. Buckingham’s Executors, 5 How. 317..................... 520 Commercial Cable Co. v. Burleson, 250 U. S. 350.. 530 Commissioner v. Langwell Real Estate Corp., 47 F. (2d) 841................ 294 Community Bldg. Co. v. Maryland Casualty Co., 8 F. (2d) 678........... 340 Compania de Navigation v. Brauer, 168 U. S. 104.... 304 Compania General v. Collec- tor, 279 U. S. 306...... 356 Compau v. Bemis, 35 Ill. App. 37................ 332 Comstock v. Fraternal Accident Assn., 116 Wis. 382.. 338 Conard v. Atlantic Ins. Co., 1 Pet. 386.............. 42 Conard v. Nicoll, 4 Pet. 291 ................. 42, 51 Concordia Ins. Co. v. Illinois, 292 U. 8. 535.......... 210 Confiscation Cases, 20 Wall. 92 ..................... 446 Connella v. Haskell, 158 Fed. 285 .................. 139 Consolidated Turnpike Co. v. Norfolk & O. V. Ry. Co., 228 U. S. 596........... 55 Consumers Co. v. Goodrich Transit Co., 53 F. (2d) 972 ..................... 52 Continental Baking Co. v. Woodring, 286 U. S. 352.. 529 Converse v. Hamilton, 224 U. 8. 243................... 76 Conveyor, The, 147 Fed. 586. 32 Com Exchange Bank v. Com- missioner, 280 U. 8. 218... 518 Corona Cord Tire Co. v. Do van Chemical Corp., 276 U. S. 358................ 14 Corsar v. Spreckels Bros. Co., 141 Fed. 260.............. 306 Cortes v. Baltimore Insular Line, 287 U. 8. 367.... 156, 157,158 Costanzo v. Tillinghast, 287 U. 8. 341............... 180 Page. Courson v. New York Life Ins. Co., 295 Pa. 518....338 Coyle v. Duncan Spangler Coal Co., 288 Fed. 897.... 371 Craig v. Hecht, 263 U. S. 255. 136 Craighead v. Wilson, 18 How. 199 378 Crawford v. Burke, 195 U. 8. 176 ................ 331,333 Crawford v. Duluth St. Ry. Co., 60 F. (2d) 212...... 65 Crew Levick Co. v. Pennsylvania, 245 U. S. 292 ...... 21 Crittenden v. Widrevitz, 272 Fed. 871.................. 364 Cronan v. Cotting, 104 Mass. 245 .......................333 Crosby Stores, Inc., In Ye, 61 . F. (2d) 812..............473 Crossett Western Co. v. Commissioner, 73 F. (2d) 307.. 123 Crowell v. Benson, 285 U. 8. 22 .................... 44,45 Crowley v. Christensen, 137 U. S. 86................ 136 Crozier v. Krupp, 224 U. 8. 290 ...................... 413 Cudahy Packing Co. v. Min-nesota, 246 U. 8. 450... 20,21 Cumberland Coal Co. v. Board, 284 U. S. 23..... Ill Cuyahoga River Power Co. v. Northern Realty Co., 244 U. S. 300............ 55 Dahl v. Montana Copper Co., 132 U. 8. 264....... 73 Dahnke-Walker Co. v. Bondurant, 257 U. 8. 282..... 276 Dakota Central Tel. Co. v. South Dakota, 250 U. S. 163 .................... 432 Danciger Oil & Rfg. Co. v. Smith, 290 U. 8. 599 ... 530 Danielson v. Entre Rios Ry. Co., 22 F. (2d) 326..... 453 Darby-Lynde Co. v. Alexander, 51 F. (2d) 56........ 320 Darcy v. Commissioner, 66 F. (2d) 581...................515 Davis v. Beason, 133 U. S. 333 .................... 265 Davis, Ex parte, 112 Fed, 139....................... 139 ;klii TABLE OF CASES CITED. Page. Davis-Smith Co. v. Clausen, 65 Wash. 156............. 154 Dean v. Northwestern Mu- tual Life Ins. Co., 175 Ga. 321 ..................... 338 De Bara v. United States, 99 Fed. 942................. 139 Deery v. Cray, 5 Wall. 795.. 281 De Friece v. Bryant, 232 Fed. 233 371 De Lauro, In re, 1 F. Supp. 678 ..................... 332 Deming v. Carlisle Packing Co., 226 U. S. 102....... 258 Dennistoun v. Stewart, 18 How. 565.................. 58 De Saussure v. Gaillard, 127 U. S. 216................. 54 De Simone, Ex parte, 36 F. (2d) 773................ 453 Detroit Motor Appliance Co. v. Burke, 4 F. (2d) 118... 7 Dewey v. Des Moines, 172 U. S. 193................... 519 Diamond’s Estate, In re, 259 Fed. 70.............. 472,473 Dinsmore v. Southern Ex- press Co., 183 U. S. 115... 413 Di Santo v. Pennsylvania, 273 U. S. 34................. 276 Disconto-Gesellschaft v. U. S. Steel Corp., 267 U. S. 22.. 346 Dixon, In re, 21 F. (2d) 565. 332 Dodd v. Peak, 60 App. D. C. 68..................... 139 Donnelley v. United States, 276 U. S. 505............ 94 Doty v. Strong, 1 Pinney (Wis.) 84................. 82 Doyle v. Atwell, 261 U. S. 590 ..................... 526 Doyle-Kidd Dry Goods Co. v. Munn, 151 Ark. 629 ....... 82 Draco, The, 2 Surnn. 157.... 41, 42,51 Du Bois v. Kirk, 158 U. S. 58......................... 3 Ducker v. Wood, 1 T. R. 277. 493 Duncan v. Jaudon, 15 Wall. 165 ..................... 365 Duncan v. Missouri, 152 U. S. 377 ..................... 261 Page. Dundas v. Bowler, 3 McLean 397 ..................... 346 Dunne v. People, 94 Ill. 120. 260 Duplex Printing Press Co. v. Deering, 254 U. S. 443.... 413 Eastern Air Transport v. Tax Commission, 285 U. S. 147. 20, 518 Eastman Co. v. Southern Photo Co., 273 U. S. 359.. 276 Eclipse, The, 135 U. S. 599.. 32 Edwin I. Morrison, The, 153 U. S. 199........... 304,305 Egan v. New York Life Ins. Co., 67 F. (2d) 899..... 338 Egeria, The, 294 Fed. 791... 52 Elliot v. Lombard, 292 U. S. 139..................... 57 Embiricos v. Anglo-Austrian Bank [1905], 1 K. B. 677. 346 Empire Trust Co. v. Cahan, 274 U. S. 473........... 365 Emplenton Refining Co. v. Chambers, 14 F. (2d) 104. 383 Enelow v. N. Y. Life Ins. Co., 293 U. S. 379....... 388,452 Engel v. Davenport, 271 U. S. 33.................... 45 Enoch v. Brandon, 249 N. Y. 263 ................. 363 Enterprise Irrigation Dist. v. Canal Co., 243 U. S. 157.. 517 Eori v. Aderhold, 53 F. (2d) 840..................... 139 Equitable Life Assur. Society v. Clements, 140 U. S. 226. 339 Erb v. Morasch, 177 U. S. 584 ..................... 65 Erie R. Co. v. Solomon, 237 U. S. 427................ 258 Estho v. Lear, 7 Pet. 130.... 213 Eustis v. Bolles, 150 U. S. 361...................... 54 Evans v. Eaton, 3 Wheat. 454 ..................... 3 Excellent, The, 16 Fed. 148. 306 Eyster v. Gaff, 91 U. S. 521. 372 Fairmount Glass Works v. Cub Fork Coal Co., 287 U. S. 474 ................. 489 Falbo v. United States, 291 U. S. 646 .............. 507 Fargo v. Hart, 193 U..S.490. 110 TABLE OF CASES CITED. XL1II Page. Fargo v. Michigan, 121 U. S. 230.......................... 21 Farmers Loan & T. Co. v. Minnesota, 280 U. S. 204.. 117 Farson Son & Co. v. Bird, 248 U. S. 268............. 526 Felton v. Ackerman, 61 Fed. 225 ...................... 65 Fidelity & Columbia Trust Co. v. Louisville, 245 U. S. 54......................... 19 Fidelity Title & T. Co. v. Kansas Natural Gas Co., 219 Fed. 614............... 65 Fidelity Title & T. Co. v. United States, 259 U. S. 304 ...................... 356 Field v. Clark, 143 U. S. 649 .................. 424-442 Filene’s (Wm.) Sons Co. v. Weed, 245 U. S. 597...... 311 Fireman’s Ins. Co. v. Mohl- man Co., 91 Fed. 85....... 506 First Nat. Bank v. Maine, 284 U. S. 312.......... 93,117 First Union T. & S. Bank v. Consumers Co., 290 U. S. 585 .................... 530 Fishbum v. Chicago, M. & St. P. Ry. Co., 137 U. S. 60 ....................... 489 Fitzgerald & Mallory Const. Co. v. Fitzgerald, 137 U. S. 98 ....................... 489 Flint v. Stone Tracy Co., 220 U. S. 107............ 225 Florida v. United States, 282 U. S. 194 ...... 447, 463, 464 Florsheim Bros. Drygoods Co. v. United States, 280 U.S. 453.............. 178,180 Folmina, The, 212 U. S. 354............. 304, 305, 306 Ford v. Huff, 296 Fed. 652.. 383 Fordson Coal Co. v. Ken- tucky River Coal Corp., 69 F. (2d) 131............ 340 Forgay v. Conrad, 6 How. 201 ...................... 378 Fosdick v. Schall, 99 U. S. 235 \ ....................472 Fox Film Corp. v. Doyai, 286 U. S. 123............. 225,533 Page. Fredensbro, The, 18 F. (2d) 983 ....................... 453 French v. Barber Asphalt Paving Co., 181 U. S. 324.. 112 Frick v. Pennsylvania, 268 U. S. 473............... 116,121 Funk v. United States, 290 U. S.371................ 487,496 Funkhouser v. Preston Co., 290 U. S. 163............ 236 Furst v. Brewster, 282 U. S. 493 ..................... 276 Galveston, H. & S. A. Ry. Co. v. Texas, 210 U.S. 217.... 21 Garnett, In re, 141 U. S. 1.. 43 Gasoline Products Co. v. Champlin Rfg. Co., 283 U. S. 494 .................. 491 General Electric Co. v. Mar- vel Co., 287 U. S. 430.... 451 General Oil Co. v. Crain, 209 U.S. 211................. 120 General Smith, The, 4 Wheat. 438......................... 45 Genesee Chief, The, 12 How. 443 ...................... 52 Gentry v. Griffith, Hyatt & Co., 27 Tex. 461.......... 82 George, The, 1 Sumn. 151.. 158 Georgia Commission v. United States, 283 U. S. 765.................. 464, 525 German Alliance Ins. Co. v. Hale, 219 U. S. 307... 483, 493 Germanic, The, 196 U. S. 589...................... 303 Germantown Trust Co. v. Lederer, 263 Fed. 672.... 507 Gibbes v. Zimmerman, 290 U.S. 326 ................ 531 Gila Valley, G. & N. Ry. Co. v. Hall, 232 U. S. 94.... 483, 493, 494 Gilbert v. Minnesota, 254 U. S. 325................... 260 Givens v. Zerbst, 255 U. S. 11........................447 Glenwood Irrigation Co. v. Vallery, 248 Fed. 483 ... 487 Godchaux v. Estopinal, 251 U. S. 179............ 517, 520 XLIV TABLE OF CASES CITED. Page. Goldmann (Isaac) Co. v. Commissioner, 60 App. D. C. 265............... 176, 185 Gordon Campbell, The, 131 Fed. 963.................. 32 Gothic Star, The, 4 F. Supp. 240 ..................... 306 Grayson v. Harris, 267 U. S. 352...................... 17 Great Northern Ry. Co. v. Sunburst Oil & Rfg. Co., 287 U. S. 358........ 366, 518 Great Western Mining Co. v. Harris, 198 U. S. 561..... 75 Gregg Dyeing Co. v. Query, 286 U. S. 472.......... 518 Griesa v. Mutual Life Ins. Co., 165 Fed. 48......... 382 Grimberg v. Admiral Oriental Line, 300 Fed. 619...... 157 Gross v. Irving Trust Co., 289 U. S. 342........ 472, 473 Gualala, The, 178 Fed. 402.. 306 Guarantee Co. v. Mechanics’ Savings Bank & T. Co., 173 U. S. 582................ 379 Guaranty Trust Co. v. Blod- gett, 287 U. S. 509.......518 Gulf, C. & S. F. Ry. Co. v. Dennis, 224 U. S. 503.... 413 Gunning v. Cooley, 281 U. S. 90 ................. 505,511 Gyer’s Lessee v. Irwin, 4 Dall. 107................. 82 Hale v. Henkel, 201 U. S. 43. 139 Hall v. Acacia Mutual Life Assn., 164 Tenn. 93...... 338 Hamilton, The, 207 U. S. 398. 45 Hammond v. Schappi Bus Line, 275 U. S. 164 ... 209., 212,281 Hampton & Co. v. United States, 276 U. S. 394.. 429-442 Hancock Mutual Life Ins. Co. v. Warren, 181 U. S. 73... 534, 535 Handy & Harman v. Burnet, 284 U. S. 136 ...... 291,356 Hansen v. Boyd, 161 U. S. 397 ..................... 497 Harlan v. McGourin, 218 U. S. 442................... 139 Harper v. Butler, 2 Pet. 239. 347 Page. Harris v. First Nat. Bank, 216 U.S.382.............. 375,376 Harris v. United States, 70 F. (2d) 889............. 507 Harrisonville v. Dickey Clay Co., 289 U. S. 334 ..... 497 Hart v. Flynn’s Executor, 8 Dana (Ky.) 190........... 82 Hartford Accident & I. Co. v. Bunn, 285 U. S. 169...... 57 Hartford Accident & I. Co. v. Nelson Co., 291 U. S. 352. 518, 525 Hartford Accident & I. Co. v. Southern Pac. Co., 273 U. S. 207................... 44 Hawks v. Hamill, 288 U. S. 52 ...................... 366,367 Hays v. Pacific Mail S. S. Co., 17 How. 596.................. 120 Healy v. Ratta, 292 U. S. 263 ......................... 527 Hebert v. Crawford, 228 U. S. 204................ 370 Hebert v. Louisiana, 272 U. S. 312...............517,519 Hegeman Farms Corp. v. Baldwin, 293 U. S. 163.... 203 Heinz (H. J.) Co. v. Cohn, 207 Fed. 547................... 7 Helvering v. Independent Life Ins. Co., 292 U. S. 371..................... 514 Helvering v. New York Trust Co., 292 U. S. 455...... 126 Helvering v. Stockholms En-skilda Bank, 293 U. S. 84. 95 Helvering v. Twin Bell Oil Syndicate, 293 U. S. 312.. 325 Helvering v. Union Pacific R. Co., 293 U. S. 282.... 290,292 Henderson Bridge Co. v. Henderson City, 173 U. S. 592. 17 Hennequin v. Clews, 111 U. S. 676............... 333 Hewlett v. Crutchley, 5 Taunt. 277....;.....493 Hiawassee River Co. v. Carolina-Tennessee Co., 252 U. S. 341.................. 520 Hicklin v. Coney, 290 U. S. 169 ................... 518,525 TABLE OF CASES CITED. XLV Page. Hindoustan, The, 67 Fed. 794 ....................... 306 Hodgson (H. E.) & Co. v. Royal Mail Steam Packet Co., 33 F. (2d) 337...... 307 Holden v. Hardy, 169 U. S. 366 ..................... 496 Hooe v. Jamieson, 166 U. S. 395 ..................... 242 Hopkins v. Orr, 124 U. S. 510.........................497 Hornsby v. Eddy, 56 Fed. 461....................... 65 Horstman v. Henshaw, 11 How. 177................. 351 Hostetter v. United States, 16 F. (2d) 921........... 140 Houston v. Moore, 5 Wheat. 1...................... 260 Howard v. Citizens Bank & Trust Co., 12 App. D. C. 222 ...................... 82 Hubinger v. Commissioner, 36 F. (2d) 724........... 515 Huffman v. United States, 70 F. (2d) 266. ........... 507 Humiston v. Stainthorp, 2 Wall. 106................ 378 Huntington v. Shultz, 1 Harp. L. Rep. (S. C.) 452 ...... 82 Hurtado v. California, 110 U. S. 516.................. 496 Hygrade Provision Co. v. Sherman, 266 U. S. 497.... 414 lannarelli v. Kansas City Life Ins. Co., 114 W. Va. 88 ...................... 338 lasigi v. Van der Carr, 166 U. S. 391................... 139 Ilfeld (Chas.) Co. v. Hernan- • dez, 292 U. S. 62.......... 356 Illinois Commerce Comm’n v. United States, 292 U. S. 474 ..................... 464 Indian Motocycle Co. v. United States, 283 U. S. 570 ..................... 225 Indian Territory Oil Co. v. Board, 288 U. S. 325..... 533 Insurance Co. v. Bailey, 13 Wall. 616............... 385 Insurance Companies v. Boy- kin, 12 Wall. 433........ 338 Page. Intermountain Rate Cases, 234 U. S. 476.... 427,440,443 International Milling Co. v. Columbia Transp. Co., 292 U. S. 511................ 518 International Stevedoring Co. v. Haverty, 272 U. S. 50.. 156, 157 International Textbook Co. v. Pigg, 217 U. S. 91.....276 Interstate Commerce Com- m’n v. Goodrich Transit Co., 224 U. S. 194 ...... 429 lowa-Des Moines Bank v. Bennett, 284 U. S. 239.... Ill Irving Trust Co. v. A. W. Perry, Inc., 293 U. S. 307.. 312 Irwin v. Gavit, 268 U. S. 161. 89 Isaacs v. Hobbs Tie & Tim- ber Co., 282 U. S. 734....370 Jackman v. Rosenbaum Co., 260 U. S. 22............. 518 Jacobi v. Alabama, 187 U. S. 133...................... 519 Jamison v. Encarnacion, 281 U. S. 635................ 157 Jean Bart, The, 197 Fed. 1002 .................... 303 Jeanie, The, 236 Fed. 463.... 306 Jefferson Standard Life Ins. Co. v. Keeton, 292 Fed. 53 . 384 Jefferson Standard Life Ins. Co. v. McIntyre, 294 Fed. 886 ..................... 384 Jewell v. Knight, 123 U. S. 426 ...................... 58 Johnson v. Manhattan Ry. Co., 289 U. S. 479...... 182 Johnson v. Risk, 137 U. S. 300 .................... 54,55 Johnson Oil Co. v. Oklahoma, 290 U. S. 158............ 120 Jones v. Helvering, 63 App. D.C. 204................. 469 Jones v. Reliance Life Ins. Co., 11 F. (2d) 69 ...... 384 Judson v. Gray, 11 N. Y. 408. 485 Kane v. Paul, 14 Pet. 33.... 73 Kearney, Ex parte, 7 Wheat. 38....................... 136 Kehrer v. Stewart, 197 U. S. 60....................... 518 XLVI TABLE OF CASES CITED. Page. Kelley v. Rhoads, 188 U. S. 1 ....................... 120 Kendrick Coal & Dock Co. v. Commissioner, 29 F. (2d) 559 ..................... 294 Kennon v. Gilmer, 131 U. S. 22 ............ 483,493,494 Kentucky v. United States, 3 F. Supp. 778. ...........464 Kentucky Bank v. Adams Express Co., 93 U. S. 174.... 304 Kentucky Bank v. Ashley, 2 Pet. 327................. 497 Kentucky Union Co. v. Kentucky, 219 U. S. 140..... 525 Kerr Glass Mfg. Corp. v. Superior Court, 286 U. S. 532 ..................... 520 Keystone Dairy Co. v. N. Y. Life Ins. Co., 19 F. (2d) 68 ...................... 384 Keystone Manganese Co. v. Martin, 132 U. S. 91......379 Kimberly v. Butler, Fed. Cas. No. 7,777................. 82 King, The, v. The Trustees, 3 B. & A. 216............. 90 King Mfg. Co. v. Augusta, 277 U. S. 100............ 258 Kipley v. Illinois, 170 U. S. 182...................... 519 Kirchner & Co. v. Gruban, [1909] 1 Ch. Div. 413.... 453 Kirtland v. Hotchkiss, 100 U.S. 491.................. 19 Klein v. Insurance Co., 104 U. S. 88................. 337 Kline v. Burke Construction Co., 260 U. S. 226....... 453 Knewell v. Egan, 268 U. S. 442 ..................... 138 Knights of Pythias v. Meyer, 265 U. S. 30......... 518/525 Knights Templars’ Indemnity Co. v. Jarman, 187 U. S. 197 ..................... 439 Knohr & Burchard v. Pacific Creosoting Co., 181 Fed. 856 ..................... 307 Knott v. Botany Mills, 179 U. S. 69................ 303 Page. Knox County v. Ninth Nat. Bank, 147 U. S. 91....... 446 Koechlin et eie v. Kesten-baum Bros., [1927] 1 K. B. 889 ..................... 346 Koenigsberger v. Richmond Silver Mining Co., 158 U. S. 41........... 483,493 Kuhlman v. Fletcher Co., 20 F. (2d) 465.............. 157 Kuhn v. Fairmont Coal Co., 215 U. S. 349 ....... 366,367 Lamb v. Schmitt, 285 U. S. 222 .................... 83 Langer v. Grandin Farmers Co-operative Co., 292 U. S. 605 ..................... 523 Lathrop v. Drake, 91 U. S. 516 .................. 372 Laverty v. Snethen, 68 N. Y. 522 ..................... 332 Law v. Garrett, L. R. 8 Ch. Div. 26................. 453 Lawrence v. State Tax Com-m’n, 286 U. S. 276.... 19,209 Layton v. Missouri, 187 U. S. 356 ..................... 519 League v. Texas, 184 U. S. 156 ..................... 525 Leahy v. Haworth, 141 Fed. 850 ...................... 74 Levan v. Metropolitan Life Ins. Co., 138 S. C. 253.... 338 Lewis v. Wilson, 151 U. S. 551 ..................... 493 Liberty Oil Co. v. Condon Bank, 260 U. S. 235.. 383,384 Life Insurance Co. v. Bangs, 103 U. S. 780............ 385 Liggett Co. v. Lee, 288 U. S. 517 .................211,517 Lightsey v. Commissioner, 63 F. (2d) 254 ............ 515 Lincoln v. Power, 151 U. S. 436 ................. 488,489 Lincoln Gas Co. v. Lincoln, 223 U. S. 349.......... 213 Lincoln Land, The, 295 Fed. 358 ...................... 52 Lindgren v. United States, 281 U. S. 38.............. 45 TABLE OF CASES CITED. XLVII Page. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61.....209 Live Oak Water Users Assn. v. Railroad Comm’n, 269 U. S. 354............ 517,520 Liverpool & G. W. S. Co. v. Phenix Ins. Co., 129 U. S. 397 ..................... 304 Liverpool, N. Y. & P. S. S. Co. v. Commissioners, 113 U. S. 33................. 189 Locke’s Appeal, 72 Pa. St. 491 ........................ 437 Loma Fruit Co. v. International Navigation Co., 11 F. (2d) 124................. 306 Lottawanna, The, 21 Wall. 558 ................... 32,43,50 Louisiana Pub. Serv. Comm’n v. Texas & N. O. R. Co., 284 U. S. 125............ 464 Louis Neuburger, Inc., In re, 233 Fed. 701................ 473 Louisville Trust Co. v. Co-mingor, 184 U. S. 18.........473 Lovell v. Newman & Son, 227 U. S. 412............ 371,377 Lovell Mfg. Co. v. Cary, 147 U. S. 623............... 14 Lowenstein v. Reikes, 60 F. (2d) 933.................... 371 Lucas v. Pilliod Lumber Co., 281 U. S. 245............... 180 Lucas v. Structural Steel Co., 281 U. S. 264............... 515 Luckenbach S. S. Co. v. United States, 272 U. S. 533 ..................... 489 Lumbra v. United States, 290 U. S. 551.... 500,505, 506,507 Lynch v. New York ex rei. Pierson, 293 U. S. 52.. 527, 531 Lynch v. United States, 292 U. S. 571................ 350 MacDonald v. Ply mo u th Trust Co., 286 U. S. 263.. 377 Maggie Hammond, The, 9 Wall. 435 .......... 304, 305 Magnano Co. v. Hamilton, 292 U. S. 40........... 518, 525 Maguire v. Trefry, 253 U. S. 12........................... 19 89995°—35---iv Page. Mahler v. Eby, 264 U. S. 32.............. 433,447,464 Mainwaring v. The Carrie Delap, 1 Fed. 874...... 306 Malcolm Baxter, The, 277 U. S. 323 ................ 305 Manhattan Bank v. Walker, 130 U. S. 267.......... 365 Manhattan Life Ins. Co. v. Cohen, 234 U. S. 123 .. 520 Manhattan Properties v. Ir- ving Trust Co., 291 U. S. 320.................... 310 Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 379............. 75,244,451 Manufacturers Ry. Co. v. United States, 246 U. S. 457.................... 465 Marbury v. Beaumont, 290 Fed. 205.............. 139 Margaret, The, 9 Wheat. 421.................... 44 Marine Transit Corp. v. Dreyfus, 284 U. S. 263.... 453 Martha Washington, The, 3 Ware 245.................. 32 Marti v. Midwest Life Ins. Co., 108 Neb. 845...... 338 Martin v. Mott, 12 Wheat. 19............. 432,445,446 Martin v. State, 24 Tex. 61.. 92 Massachusetts Mutual Life Ins. Co. v. United States, 288 U. S. 269.......... 294 Matern v. Commissioner, 61 F. (2d) 663 ........... 515 Matthew v. Coppin, 32 F. (2d) 100............... 371 Maxwell v. Bugbee, 250 U. S. 525................. 261 May v. Henderson, 268 U. S. Ill.................... 473 Mayor v. Helena Waterworks Co., 104 Fed. 113....... 74 McAleer v. Clay County, 38 Fed. 707.................. 74 McCandless v. Furlaud, 293 U. S. 67....... 240, 242, 244 McCandless v. Furlaud, 68 F. (2d) 925............... 240 XLVIII TABLE OF CASES CITED. Page. McCardle v. Indianapolis Water Co., 272 U. S. 400.. 109 McCaughn v. Hershey Chocolate Co., 283 U. S. 488.. 180, 294 McClintick v. Cummins, 3 McLean 158............ 346 McCoy v. Lemon, 11 Rich. 165..................... 478 McCoy v. Shaw, 277 U. S. 302..................... 526 McEldowney v. Card, 193 Fed. 475................ 371 McGourkey v. Toledo & O. C. Ry. Co., 146 U. S. 536.. 379 McGrain v. Daugherty, 273 U. 8. 135..............414 McIntyre v. Kavanaugh, 242 U. S. 138............. 332 McKee v. United States, 164 U. S. 287........... 439 McKinley v. United States, 249 U. S. 397........... 429 McLaughlin v. United States, 107 U. S. 526............ 73 McPherson v. Blacker, 146 U. S. 1...................261 Medhurst v. The South American, 264 U. S. 587.. 610 Meeker & Co. v. Lehigh Valley R. Co., 236 U. S. 412.. 465 Mellon v. O’Neil, 275 U. S. 212...................... 54 Mercantile Trust Co. v. Tennessee Central R. Co., 286 Fed. 425................. 65 Merchants Liability Co. v. Smart, 267 U. S. 126.. 534, 535 Merchants Nat. Bank v. Detroit Trust Co., 258 Mich. 526............. 363 Merrick v. Giddings, McArthur & Mackey 55......... 82 Metcalf & Eddy v. Mitchell, 269 U. S. 514 ...... 223,225 Metropolitan Life Ins. Co. v. Carroll, 209 Ky. 522.. 338 Meuer v. Phenix Nat. Bank, 94 App. Div. 331........ 348 Meyer v. Nebraska, 262 U. S. 390 .................... 262 Micas v. Williams, 104 U. S. 556 .................... 258 Page. Michaelson v. United States, 266 U. S. 42........... 66 Milheim v. Moffat Tunnel District, 262 U. S. 710..532 Miller v. Cornwall R. Co., 168 U. S. 131............... 519 Milwaukee & St. P. Ry. Co. v. Kellogg, 94 U. S. 469... 506 Miner v. Markham, 28 Fed. 387 ....................... 83 Minnesota Rate Cases, 230 U. S. 352.................. 109 Minor v. Happersett, 21 Wall. 162..................... 263 Mississippi Valley Barge Co. v. United States, 292 U. S. 282 .................... 524 Missouri State Life Ins. Co. v. Le Fevre, 10 S. W. (2d) 267 . . 338 Mohler,’ The, 21 Wall.’ 230... 305 Monongahela Bridge Co. v. United States, 216 U. S. 177 ................... 427 Montana v. United States, 2 F. Supp. 448 ........... 464 Moore v. Scott, 55 F. (2d) 863 ...................... 473 Morgan v. Daniels, 153 U. S. 120..................... 5,8,9 Morgan v. Devine, 237 U. S. 632 ...................... 139 Morgan v. Sylvester, 231 Fed. 886 ...................... 140 Morgan v. Tapscott, 5 Ben. 252 ....................... 32 Morgan v. Thornhill, 11 Wall. 65 ....................... 372 Morse Drydock & Repair Co. v. The Northern Star, 271 U. S. 552................ 52 Mountain Timber Co. v. Washington, 243 U. S. 219. 154 Mueller v. Nugent, 184 U. S. 1 ..........:......... 375,472 Mullins Lumber Co. v. Wil- liamson & Brown Co., 255 Fed. 645 ............... 506 Murphy v. John Hofman Co., 211 U. S. 562............. 370 Murphy Oil Co. v. Burnet, 287 U. S. 299 ........... 324, 325,326,327 TABLE OF CASES CITED. XLIX Page. Murray v. Lardner, 2 Wall. 110.................••••:•• 364 Murray v. Wilson Distilling Co., 213 U. S. 151.... 225,226 Mutual Life Ins. Co. v. Hilton-Green, 241 U. S. 613.. 534, 535 Mutual Life Ins. Co. v. Hurni Packing Co., 263 U. S. 167. 384 Myles S^t Co. v. Commissioner, 49 F. (2d) 232... 176, 180,185 Nanking, The, 290 Fed. 769 . 52 Napier v. Atlantic Coast Line, 272 U. S. 605...; 459,461,462 Nashville, C. & St. L. Ry. Co. v. Wallace, 288 U. S. 249 ................. 492 National Bank v. Enterprise Marine Dock Co., 43 F. (2d) 547................... 52 National Fire Ins. Co. v. Thompson, 281 U. S. 331.. 522 National Folding Box Co. v. American Box Co., 48 Fed. 913...................... 8 National Ins. Co. v. Wanberg, 260 U. S. 71.......... 534,535 National Lead Co. v. United States, 252 U. S. 140.. 180 National Linen Service Corp. v. Lynchburg, 291 U. S. 641 ...................... 523 National Paper Products Co. v. Commissioner, 69 F. (2d) 857.................. 188 Nickey Bros. v. Lonsdale Mfg. Co., 149 Tenn. 1.... 364 Niles Bement Pond Co. v. United States, 281 U. S. 357 .................. 284 Nishimura Ekiu v. United States, 142 U. S. 651.. 139 Neal v. Clark, 95 U. S. 704.. 333 Near v. Minnesota, 283 U. S. 697 ...................... 262 Nebbia v. New York, 291 U. S. 502..... 168,172,200,205 Neptune, The, 3 Hagg. 129.. 47 Neuburger (Louis), Inc., In re, 233 Fed. 701.......... 473 Page. Newburyport v. Fidelity Mutual Life Ins. Co., 197 Mass. 596 .................... 365 New Colonial Ice Co. v. Helvering, 292 U. S. 435..... 514 New England Mutual Life Ins. Co. v. Reynolds, 217 Ala. 307................ 338 New Jersey Telephone Co. v. Tax Board, 280 U. S. 338.. 21 New York v. United States, 257 U. S. 591............. 464 New York Central & H. R. R. Co. v. Kinney, 260 U. S. 340 .................... 180 N. Y. Central Securities Corp. v. United States, 287 U. S. 12 .............. 428,440,524 New York ex rei. Sackett v. Lynch, 291 U. S. 652; 292 U. S. 604............... 519 New York Life Ins. Co. v. Deer Lodge County, 231 U. S. 495 .............. 277 New York Life Ins. Co. v. Marotta, 57 F. (2d) 1038.. 384 New York Life Ins. Co. v. Marshall, 23 F. (2d) 225.. 385 New York Life Ins. Co. v. Miller, 73 F. (2d) 350. 384,385 Noble v. Hammond, 129 U. S. 65 ..................... 333 Nogueira v. New York, N. H. & H. R. Co., 281 U. S. 128. 45, 160 Nones v. Edsall, Fed. Cas. No. 10,290................... 82 Noonan v. Bradley, 9 Wall. 394 ..................... 73 Northern Coal Co. v. Strand, 278 U. S. 142.............. 45 Northern No. 41, The, 297 Fed. 343................. 52 Northern Pacific R. Co. v. Herbert, 116 U. S. 642 . 483,493 Northwest Bancorporation v. Benson, 292 U. S. 606... 523 Northwestern Mutual Life Ins. Co. v. McCue, 223 U. S. 234............... 339 Northwestern S. S. Co. v. Cochran, 191 Fed. 146.... 74 L TABLE OF CASES CITED. Page. Norwegian Nitrogen Co. v. United States, 288 U. S. 294 .................... 180 Norwich Co. v. Wright, 13 Wall. 104................ 44 Norwood v. Baker, 172 U. S. 269 .................... 112 O’Brien v. McClaughry, 209 Fed. 816................ 139 Oconee, The, 280 Fed. 927... 52 Ogden & Moffet Co. v. Michi- gan Pub. Util. Comm’n, 286 U. S. 525 .............. 523 O’Gorman & Young v. Hartford Ins. Co., 282 U. S. 251 ............. 209,534, 535 Ohio v. Helvering, 292 U. S. 360 ............... 92,225,226 Ohio v. United States, 292 U. S. 498 .............. 464 Ohio ex rel. Eastman v. Stuart, 291 U. S. 643....... 526 Ohio Oil . Co. v. Conway, 281 U. S. 146............... 210 Olcott v. The Supervisors, 16 Wall. 678 .............. 532 Old Colony R. Co. v. Commissioner, 284 U. S. 552... 283, 284,288,294 Old Colony Trust Co. v. Commissioner, 279 U. S. 716... 516 Old Mission Port. Cement Co. v. Helvering, 293 U. S. 289 . 296 Olson v. United States, 292 U. S. 246............... 109 Omaha v. Omaha Water Co., 218 U. S. 180............ 109 Onondaga Co. v. Commissioner, 50 F. (2d) 397.. 515 Operators’ Piano Co. v. First Wisconsin Trust Co., 283 Fed. 904................. 371 Opinion of the Justices, 261 Mass. 542............... 223 O’Reilly v. Campbell, 116 U. S. 418................ 74 Orient Ins. Co. v: Daggs, 172 U. S. 567........... 534,535 Orinoco Iron Co. v. Metzel, 230 Fed. 40 ............. 472 Oscanyan v. Arms Co., 103 U. S. 261............... 347 Page. Ownbey v. Morgan, 256 U. S. 94......... ............. 518 Ozark Pipe Line Corp. v. Monier, 266 U. S. 555.... 20 Paauhau Sugar Co. v. Pala- pala, 127 Fed. 920........ 73 Paepcke v. Paine, 253 Mich. 636........................ 363 Page v. Arkansas Gas Corp., 286 U. S. 269........ 370, 377 Palmer v. Bender, 287 U. S. 551.................. 321, 325 Palmyra, The, 10 Wheat.' 502...................... 378 Panama R. Co. v. Johnson, 264 U. S. 375...... 43-45, 156 Panama R. Co. v. Vasquez, 271 U. S. 557............ 45 Parks, Ex parte, 93 U. S. 18. 136 Parsons v. Bedford, 3 Pet. 433.....................-.. 491 Parsons v. Federal Realty Corp., 105 Fla. 105.. 534, 535 Patria, The, 132 Fed. 971.. 306 Patten & Co. v. United States, 289 U. S. 705.... 530 Patton v. United States, 281 U.S. 276............. 476,486 Peake v. Lincoln National Life Ins. Co., 15 F. (2d) 303...................... 384 Peck v. Heurich, 167 U. S. 624 ..................... 281 Peirce v. Van Dusen, 78 Fed. 693....................... 65 Pensacola Tel. Co. v. West- ern Union, 96 U. S. 1.... 276 People’s Ferry Co. v. Beers, 20 How. 393............... 32 Perkins v. Fourniquet, 6 How. 206................. 378 Petersen Baking Co. v. Bryan, 290 U. S. 570.... 172 Peterson, Ex parte, 253 U. S. 300................ 491 Peterson v. Swanson, 176 Minn. 246................ 348 Pfeiffer v. Missouri State Life Ins. Co., 174 Ark. 783.... 338 Pflueger v. Broadway Trust & S. Bank, 351 Ill. 170.... 363 Philadelphia Co. v. Stimson, 223 U. S. 605........ 414, 427 TABLE OF CASES CITED. LI Page. Philadelphia & Southern S. S. Co. v. Pennsylvania, 122 U. S. 326...................... 21 Philadelphia & Trenton R. Co. v. Stimpson, 14 Pet. 448 ............ 432, 446, 465 Philippine Sugar Co. v. Philippine Islands, 247 U. S. 385.......................... 8 Phillips v. Browne, 270 Ill. 450......................... 82 Phillips v. Commissioner, 283 U. S. 589.................. 294 Phillips & Colby Const. Co. v. Seymour..................497 Phillips-Morefield v. South- ern States Life Ins. Co., 66 F. (2d) 29................. 384 Piedmont & G. C. Coal Co. v. Seaboard Fisheries Co., 254 U. S. 1............ 45, 46 Pierce v. Society of Sisters, 268 U. S. 510.......... 262 Pine Grove v. Talcott, 19 Wall. 666............... 532 Pittsburgh & W. Va. Ry. Co. v. United States, 281 U. S. 479.................. 532 Pittsburg & Southern Coal Co. v. Bates, 156 U. S. 577..................... 120 Plymouth, The, 3 Wall. 20.. 44 Pollard v. Tobin, 211 Wis. 405............ 363-367 Porter v. Foley, 24 How. 415..................... 519 Postal Telegraph Co. v. Adams, 155 U. S. 688.... 19 Postum Cereal Co. v. Califor- nia Fig Nut Co., 272 U. S. 693........................ 4 Presser v. Illinois, 116 U. S. 252 ....................... 261 Propeller Niagara, The, v. Cordes, 21 How. 7...........304 Prudential Ins. Co. v. Cheek, 259 U. S. 530 ........... 261 Public Service Comm’n v. Great Northern Util. Co., 289 U. S. 130.... 170,171,203 Public Service Comm’n v. Wisconsin Tel. Co., 289 U. S. 67 ..................... 447 Page. Pullman’s Car Co. v. Pennsylvania, 141 U. S. 18.... 120 Putnick, The, 291 Fed. 902.. 162 Queensboro Nat. Bank v. Kelly, 48 F. (2d) 574.... 346 Quong Ham Wah Co. v. Industrial Comm’n, 255 U. S. 445 .................. 258,520 Radice v. New York, 264 U. S. 292 ............... 210 Radio Comm’n v. Nelson Bros. Co., 289 U. S. 266... 428 Railroad Co. v. Fraloff, 100 U. S. 24............. 488,489 Railroad Co. v. Lockwood, 17 Wall. 357................ 304 Railroad Co. v. Reeves, 10 Wall. 176................ 305 Rankin v. Hoyt, 4 How. 327 . 446 Raphael v. Trask, 194 U. S. 272 243 Rast v. Van Deman & Lewis Co., 240 U. S. 342... 210,211 Red “C” Oil Co. v. North Carolina, 222 U. S. 380.... 427 Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109... 452 Red Lion, The, 22 F. (2d) 329 ...................... 52 Reed v. Loyal Protective Assn., 154 Mich. 161..... 338 Rein v. Lane, L. R. 2 Q. B. Cases 144................. 94 Reinecke v. Spalding, 280 U. S. 227 .............. 514 Reivich v. United States, 25 F. (2d) 670 ............. 232 Rex v. Clarkson, 1 Stra. 444. 138 Reynolds v. Travelers Ins. Co., 176 Wash. 36....... 338 Rhodes v. Walsh, 55 Minn. 542 ...................... 82 Rhyne v. Jefferson Standard Life Ins. Co., 196 N. C. 717.......................338 Rich v. Lambert, 12 How. 347 ................. 304,305 Richardson v. Harmon, 222 U. S. 96.............. 44,45 Richardson v. Owings, 86 Md. 6'63..................... 234 Rindge Co. v. Los Angeles, 262 U. S. 700 ........... 532 LU TABLE OF CASES CITED. Page. Roberts v. Ryer, 91 U. S. 150...................... 14 Robinson, Ex parte, 19 Wall. 505 ..................... 66 Roe v. Kansas, 278 U. S. 191. 258 Rogers v. Hennepin County, 240 U. S. 184........... 187 Rogosich v. Union Dry Dock & Repair Co., 67 F. (2d) 377 .................... 157 Rona, The, 5 Asp. 259 ..... 307 Rooker v. Fidelity Trust Co, 261 U. S. 114........517,520 Rose v. Mutual Life Ins. Co, 19 F. (2d) 280......... 384 Roseberry v. American Benevolent Assn, 142 Mo. App. 552.................. 338 Ross v. Oregon, 227 U. S. 150 .................... 520 Rousso v. Barber, 3 F. (2d) 740 ...................... 9 Rousso v. First Nat. Bank, 37 F. (2d) 281............ 9 Rumbell, The J. E, 148 U. S. 1 ...............32,45,46,50 Rupert City, The, 213 Fed. 263 ..................... 32 Russell v. Commissioner, 45 F. (2d) 100............. 515 Russell v. Grigsby, 168 Fed. 577 ................... 346 Sacramento Navigation Co. v. Saiz, 273 U. S. 326 ... 94 Safe Deposit & T. Co. v. Virginia, 280 U. S. 83....... 117 Sailor Prince, The, 1 Ben. 461....................... 32 St. Jago de Cuba, The, 9 Wheat. 409 .............. 45 St. Lawrence, The, 1 Black 522 ....................... 43 St. Louis, I. M. & S. Ry. Co. v. Taylor, 210 U. S. 281.. 427 St. Louis S. W. Ry. Co. v. Henson, 58 Fed. 531...... 73 Sanderson v. Commissioner, 42 F. (2d) 160.......... 515 Saxman Coal & Coke Co. v. Commissioner, 43 F. (2d) 556 .................... 515 Schmieder v. Barney, 113 U. S. 645............... 506 Page. Schuchardt v. The Angelique, 19 How. 239............. 32,50 Schultz v. Biddle, 19 F. (2d) 478 ...................... 140 Scott, In re, 250 Fed. 647... 157 Scudder v. Union National Bank, 91 U. S. 406....... 339 Seaboard Air Line Ry. v. United States, 254 U. S. 57. 525 Seaboard Air Line Ry. v. Watson, 287 U. S. 86..... 258 Sea Lark, The, 14 F. (2d) 201....................... 157 Seattle & Renton Ry. Co. v. Linhoff, 231 U. S. 568.... 517 Seegmiller v. Day, 249 Fed. 177 ...................... 371 Selective Draft Law Cases, 245 U. S. 366, 389 ..... 260, 263,429 Shaffer v. Carter, 252 U. S. 37........................ 21 Sherman v. Bingham, 21 Fed. Cas. 1270 ............... 374 Siebenhauer v. California Bank, 211 Cal. 239....... 363 Siebold, Ex parte, 100 U. S. 371....................... 136 Silverbrook, The, 18 F. (2d) 144....................... 453 Sim v. Edenborn* *242 Ü. S. 131...................... 340 Simmons Co. v. Commissioner, 33 F. (2d) 75..... 286 Simmons Co. v. Grier Bros. Co., 258 U. S. 82........ 379 Singer Sewing Machine Co. v. Brickell, 233 U. S. 304.... 523 Singleton v. Cheek, 284 U. S. 493 ................... 230,231 Sioux City Bridge Co. v. Dakota County, 260 U. S. 441. Ill Sioux County v. National Surety Co., 276 U. S. 238.. 366 Slaughter-House Cases, 16 Wall. 36................. 261 Smith v. Ayer, 101 U. S. 320. 365 Smith v. Cahoon, 283 U. S. 553 ..................... 210 Smith v. Missouri State Life Ins. Co., 134 Kan. 426.... 338 Snyder v. Massachusetts, 291 U. S. 97................. 518 TABLE OF CASES CITED. LIII Page. Sonneborn Bros. v. Cureton, 262 U. S. 506.............. 518 South Carolina v. United States, 199 U. S. 437 .. 225 South Carolina Power Co. v. Tax Comm’n, 286 U. S. 525 .................... 522 Southern Pacific Co. v. I. C. C., 219 U. S. 433....... 414 Southern Pacific Co. v. Jensen, 244 U. S. 205.......... 43 Southern Pacific Terminal Co. v. I. C. C., 219 U. S. 498.. 414 Southern Ry. Co. v. Bennett, 233 U. S. 80 .............. 488 Southern Ry. Co. v. Greene, 216 U. S. 400.............. 210 Southwestern Bell Tel. Co. v. Public Service Comm’n, 262 U. S. 276............... 109 Southwestern Oil Co. v. Tex- as, 217 U. S. 114........525 Spencer v. Duplan Silk Co., 191 U. S. 526.............. 375 Spencer, Ex parte, 228 U. S. 652 ....................... 139 Speyer v. The Mary Belle Roberts, Fed. Cas. No. 13,240................ 306,307 Spies v. National City Bank, 174 N. Y. 222.............. 348 Sproles v. Binford, 286 U. S. 374;....................... 529 Sprunt (Alexander) & Son v. Commissioner, 64 F. (2d) 424 ....................... 515 Stallings v. Splain, 253 U. S. 339 ....................... 138 Standard Oil Co. v. Southern Pacific Co., 268 U. S. 146.. 109 Standard Oil Co. v. United States, 283 U. S. 235... 532 Standard Oil Co. v. United States, 283 U. S. 163 .. 279 Standard Oil Co. v. United States, 221 U. S. 1......279 Stanley v. Gaylord, 1 Cush. 536 ...................... 332 Stanley v. Schwalby, 147 U. S. 508 ....................... 92 State v. Holm, 139 Minn. 267 ....................... 260 Page. State v. Industrial Comm’n, 186 Wis. 1.................. 260 Staten Island Rapid Transit Ry. Co. v. Public Service Comm’n, 16 F. (2d) 313.. 462 State Railroad Tax Cases, 92 U. S. 575................... 112 Stearns v. Wood, 236 U. S. 75.......................... 190 Stephenson v. Binford, 287 U. S. 251................... 529 Sterling v. Constantin, 287 U. S. 378 .............. 432,446 Stetson v. Stindt, 279 Fed. 209 ........................ 487 Stevens v. The White City, 285 U. S. 195............... 505 Stiefel v. 14th St. Realty Corp., 48 F. (2d) 1041.... 371 Stipcich v. Insurance Co., 277 U. S. 311............... 534,535 Stoody Co. v. Mills Alloys, Inc., 67 F. (2d) 807.......... 8 Stow v. Chicago, 104 U. S. 547 ...................... 14 Straton v. New, 283 U. S. 318........................ 370 Stromberg v. California, 283 U. S. 359................... 262 Strother v. Commissioner, 55 F. (2d) 626................. 515 Stuart v. Boulware, 133 U. S. 78 ....................... 472 Sugarman v. United States, 249 U. S. 182............... 258 Sullivan v. Swain, 96 Fed. 259 ........................ 243 Sultan Ry. Co. v. Department of Labor, 277 U. S. 135... 258 Sunday Lake Iron Co. v. Wakefield, 247 U. S. 350.. Ill Superior Oil Co. v. Missis- sippi, 280 U. S. 390........ 469 Susquehanna Co. v. Tax Comm’n (No. 1), 283 U. S. 291......................... 533 Swan, In re, 150 U. S. 637... 139 Swann v. Atlantic Life Ins. Co., 156 Va. 852. 338,339 Swjft v. Smith, 102 U. S. 442. 364 Swift v. Tyson, 16 Pet. 1... 339 Swiss Oil Corp. v. Shanks, 273 U. S. 407.............. 525 LIV TABLE OF CASES CITED. Page. Talbott v. Silver Bow Coun- ty, 139 U. S. 438....... 439 Tanner v. Little, 240 U. S. 369 .................... 211 Taubel-Scott-Kitzmiller Co. v. Fox, 264 U. S. 426.. 370,472 Tax Commissioners v. Jack- son, 283 U. S. 527..... 210, 211,523 Telephone Cases, The, 126 U. S. 1.................. 14 Ten Eyck v. Craig, 62 N. Y. 406 .................... 334 Terrace v. Thompson, 263 U. S. 197.............. 414 Terre Haute & Indiana Ry. Co. v. Struble, 109 U. S. 381 ................... 489 Tevis v. Ryan, 233 U. S. 273 . 493 Texas v. United States, 292 U. S. 522............... 524 Texas Company v. Brown, 258 U. S. 466. ......... 413 Texas Emp. Ins. Assn. v. Neal, 11 S. W. (2d) 847; 14 id. 793.............. 530 Texas & N. O. R. Co. v. Brotherhood of Clerks, 281 U. S. 548................. 6 Texas & Pacific Ry. Co. v. Lacey, 185 Fed. 225...... 74 Texas & Pacific Ry. Co. v. United States, 289 U. S. 627 .................... 440 Thomas Jefferson, The, 10 Wheat. 428 .............. 52 Thompson v. Allen County, 115 U. S. 550........... 112 Thompson v. Phenix Ins. Co., 136 U. S. 287.........^.. 472 Thompson v. The Nith, 36 Fed. 383................ 306 Thompson v. Thompson, 226 U. S. 551................ 99 Thompson v. Utah, 170 U. S. 343 .................... 476 Tidal Oil Co. v. Flanagan, 263 U. S. 444 .......... 517 Tindle v. Birkett, 205 U. S. 183 ................. 331,333 Toledo Fence & Post Co. v. Lyons, 290 Fed. 637..... 371 Page. Tracy v. United States, 68 F. (2d) 834................... 507 Trainor Co. v. Aetna Casualty Co., 290 U. S. 47.... 340 Transportation Co. v. Downer, 11 Wall. 129 .......... 305 Trippe v. Provident Fund Society, 140 N. Y. 23........ 338 Trustees System Co. v. Payne, 65 F. (2d) 103.... 243 Tucker v. Alexandroff, 183 U. S. 424 ................ 48 Twining v. New Jersey, 211 U. S. 78............. 261,496 Tyler, In re, 149 U. S. 164.. 67 Underwood v. Commissioner, 56 F. (2d) 67.............. 515 Union Bridge Co. v. United States, 204 U. S. 364.... 427 Union Pacific R. Co. v. Bots-ford, 141 U. S. 250........ 478 Union Pacific R. Co. v. Hadley, 246 U. S. 330......... 493 Union Pacific R. Co. v. Syas, 246 Fed. 561............... 384 Union Tank Line Co. v. Wright, 249 U. S. 275.... 110 United Drug Co. v. Washburn, 284 U. S. 593........ 522 United Gas Co. v. Public Service Comm’n, 278 U. S. 322 ..................... 522 United Press Assns. v. National Newspapers Assn., 254 Fed. 284 .............. 487 United States v. Abilene & Southern Ry. Co., 265 U. S. 274 ..................... 458 United States v. Alaska S. S. Co., 253 U. S. 113....... 413 United States v. Anderson, 269 U. S. 422......... 284, 287, 356, 514 United States v. Atlanta, B. & C. R. Co., 282 U. S. 522. 463 United States v. Baltimore & Ohio R. Co., 293 U. S. 454. 447 United States v. Bums, 69 F. (2d) 636 .................. 507 United States v. Carpenter, 151 Fed. 214............... 139 TABLE OF CASES CITED. LV Page. United States v. Chase Nat. Bank, 252 U. S. 485...... 351 United States v. Chemical Foundation, 272 U. S. 1... 428, 432,446,465 United States v. Commercial Credit Co., 286 U. S. 63... 6 United States v. Dakota- Montana Oil Co., 288 U. S. 459 ............. 321,325,327 United States v. Delaware & Hudson Co., 213 U. S. 36,6. 439 United States v. Derrick, 70 F. (2d) 162 ............. 507 United States, Ex parte, 287 U. S. 241.............. 521 United States v. Flores, 289 U. S. 137................. 44 United States v. Green, 69 F. (2d) 921............... 507 United States v. Grimaud, 220 U. S. 506........... 428, 429,438,440,443 United States v. Hamburg American Co., 239 U. S. 466 ..................... 530 United States v. Harris, 177 U. S. 305................ 65 United States v. Hartwell, 6 Wall. 385............. 94,223 United States v. Huff, 13 Fed. 630 ...:................. 158 United States v. Isham, 17 Wall. 496 ............... 469 United States v. Jefferson Electric Co., 291 U. S. 386 ................. 355,356 United States v. John Barth Co., 276 U. S. 606........ 58 United States v. Johnson, 70 F. (2d) 399.......... 507 United States v. Lancaster, 70 F. (2d) 515........507 United States v. Legg, 70 F. (2d) 106............. ... 507 United States v. Louisiana, 290 U. S. 70............... 464 United States v. Macintosh, 283 U. S. 605........ 263,266 United States v. Macintosh, 42 F, (2d) 845........... 266 Page. United States v. Mayer, 235 U. S. 55................... 58 United States v. Memphis Cotton Oil Co., 288 U. S. 62...................... 180 United States v. Morris, 14 Pet. 464................... 94 United States v. National Exchange Bank, 270 U. S. 527 ...................... 350 United States v. New River Collieries, 262 U. S. 341... 109 United States v. Pedarre, 262 Fed. 839 ................. 243 United States v. Pollock, 68 F. (2d) 633............. 507 United States v. Pridgeon, 153 U. S. 48.............. 139 United States v. Rindskopf, 105 U. S. 418............. 514 United States v. Rio Grande Irrigation Co., 184 U. S. 416.................... 213 United States v. Schwimmer, 279 U. S. 644............. 263 United States v. State Investment Co., 264 U. S. 206... 6 United States v. Sumner, 69 F. (2d) 770............. 507 United States v. The Peggy, 1 Cranch 103.............. 413 United States v. Timmons, 68 F. (2d) 654............. 507 United States v. Wiltberger, 5 Wheat. 76................ 94 United States v. Winn, 3 Sumn. 209............... 158 United States v. Woolen, 25 F. (2d) 673 ............ 232 United States v. Worley, 281 U. S. 339............... 231 U. S. Express Co. v. Minnesota, 223 U. S. 335........ 19 U. S. Glue Co. v. Oak Creek, 247 U. S. 321........•..... 21 U. S. Trust Co. v. Anderson, 65 F. (2d) 575............. 87 University of Maryland v. Coale, 165 Md. 224...... 264 Upshur v. Briscoe, 138 U. S. 365 ...................... 333 LVI TABLE OF CASES CITED. Page. Uravic v. Jarka Co., 282 U. S. 234 ................... 157,161 Usher v. Scranton Ry. Co., 132 Fed. 405............. 487 Valentine-Clark Co. v. Commissioner, 52 F. (2d) 346.. 176, 180,185 Van Schaick v. Toledo, 292 U. S. 611.............. 517 Ventress v. Smith, 10 Pet. 161....................... 73 Vestal v. Texas Emp. Ins. Assn., 285 S. W. 1041.... 530 Vicksburg & Meridian R. Co. v. O’Brien, 119 U. S. 99... 281 Victor-American Fuel Co. v. Peccarich, 209 Fed. 568... 332 Victor Talking Machine Co. v. Brunswick-Balke-Collen-der Co., 273 U. S. 670..... 5 Victory & The Plymothian, The, 168 U. S. 410.... 305 Virginian Ry. Co. v. United States, 272 U. S. 658.. 465,524 Volsinio, 32 F. (2d) 357..... 453 Wabash R. Co. v. Flannigan, 192 U. S. 29 ............ 258 Wabash Ry. Co. v. McDaniels, 107 U. S. 454 ..... 489 Wales v. Whitney, 114 U. S. 564 ................... 138 Walker v. New Mexico & S. P. R. Co., 165 U. S. 593... 332, 491 Walker v. U. S. Light & Heating Co., 220 Fed. 393. 243 Wallace v. Hines, 253 U. S. 66....................... 110 Wallace v. Regents, 75 Cal. Ann 974 957 WardP'v. City Trust Co.',’¡92 N.Y. 61...................365 Waring v. Clarke, 5 How. 441 ................... 43,44 Warner (Charles) Co. v. Independent Pier Co., 278 U. S. 85................. 182 Warren Mfg. Co. v. Tait, 60 F. (2d) 982............ 516 Washbum v. Gould, 3 Story 122........................ 7 Washington & G. R. Co. v. Harmon, 147 U. S. 571.... 497 Page. Watkins, Ex parte, 3 Pet. 193 ................... 136,138 Watt v. Watt, L. R. [1905] A. C. 115 ...... 481,495,497 Watts, In re, 190 U. S. 1.... 473 Watts, Watts & Co. v. Unione Austriaca, 248 U. S. 9...413 Wayman v. Southard, 10 Wheat. 1............ 426,429 Weissman v. Banque de Bruxelles, 254 N. Y. 488.. 346, 347 Welch v. Helvering, 290 U. S. Ill................. 294,515 Wells v. Commissioner, 286 U. S. 529................ 58 Wells, Fargo & Co. v. Nevada, 248 U. S. 165........ 20 Western Fuel Co. v. Garcia, 257 U. S. 233 ............. 45 Western & Southern Life Ins. Co. v. Smith, 41 Ohio App. 197 .................... 338 Westinghouse Elec. & Mfg. Co. v. Binghamton Ry. Co., 255 Fed. 378............. 65 White v. Atkins, 69 F. (2d) 960 ...................... 146 White v. Ewing, 159 U. S. 36. 243 White v. Johnson, 282 U. S. 367 ....................... 58 White v. Texas, 7 Wall. 700.. 348 White River Co. v. Arkansas, 279 U. S. 692............. 520 Whiteside v. North American Accident Ins. Co., 200 N. Y. 320 .................... 338 Whitney v. California, 274 U. S. 357............ 54,519 Whitney v. Dick, 202 U. S. 132....................... 136 Whitney v. Wenman, 198 U. S. 539 .......... 370,375 Whittemore v. Fisher, 132 Ill. 243 ...................... 334 Wichita Railroad & L. Co. v. Public Util. Comm’n, 260 U. S. 48 ....... 432,447,464 Wickwire v. Reinecke, 275 U. S. 101............... 515 Willcuts v. Bunn, 282 U. S. 216 ................ 225,533 TABLE OF CASES CITED. LVII Page. William D. Rice, The, 3 Ware 134........................ 32 Williams v. Commissioner, 45 F. (2d) 61.............. 515 Williams v. United States, 138 U. S. 514................443 Williams v. Wheeler, 23 Cal. App. 619................ 257 Williamson v. United States, 207 U. S. 425.............. 83 Wilson, Ex parte, 114 U. S. 417..................... 139 Wilson v. Everett, 139 U. S. 616 ................. 488,489 Wilson & Willard Mfg. Co. v. Bole, 227 Fed. 607........ 8 Winter v. Swinburne, 8 Fed. 49 ....................... 243 Wishnich-Tumpeer, Inc. v. Commissioner, Court of Appeals, D, C., Mar, 12,1934. 123 Page. Witherspoon v. Duncan, 4 Wall. 210................ 519 Wolfle v. United States, 291 U. S. 7...................496 Wood v. Fisk, 215 N. Y. 233. 332 Wood v. Wilbert’s Co., 226 U. S. 384............ 375,376 Wood Mowing Co. v. Skinner, 139 U. S. 293 ......... 54,55 Woodward v. Bridges, 144 Fed. 156................. 139 Woolford Realty Co. v. Rose, 286 U. S. 319.... 126,127,291 Worth v. Norton, 56 S. C. 56. 82 Yerger, Ex parte, 8 Wall. 85....................... 136 Zellerbach Paper Co. v. Commissioner, 69 F. (2d) 852.. 188 Zucht v, King, 260 U. S. 174. 258 TABLE OF STATUTES Cited in Opinions (A) Statutes of the United States. Page. 1789, Sept. 24, c. 20, 1 Stat. 73......... 135, 371, 495 1789, Sept. 24, c. 20, § 4, 1 Stat. 73.......:..... 492 1789, Sept. 24, c. 20, § 9, 1 Stat. 73...................... 44 1789, Sept. 24, c. 20, § 16, 1 Stat. 73..................... 384 1789, Sept. 24, c. 20, § 17, 1 Stat. 73..................... 492 1794, June 4, c. 41, 1 Stat. 372 ............. 422, 442 1795, Feb. 28, c. 36, 1 Stat. 424.................. 444 1795, Mar. 3, c. 53, 1 Stat. 444.................. 422 1798, June 13, c. 53, 1 Stat. 565.............. 422, 423 1799, Feb. 9, c. 2, 1 Stat. 613, 615 ....... 422, 423, 442 1800, Feb. 27, c. 10, 2 Stat. 7................ 422 423 1805, Mar. 3, c. 41, 2 Stat. 339.............. 422,423 1806, Feb. 28, c. 9, 2 Stat. 351.................. 422 1806, Dec. 19, c. 1, 2 Stat. 411.................. 443 1808, Apr. 22, c. 52, 2 Stat. 490 422 422 1809, Mar.’l, c.*24,’2 Stat. 528.................. 423 1809, June 28, c. 9, 2 Stat. 550.................. 550 1810, May 1, c. 39, 2 Stat. 605, 606............. 423 1813, June 19, c. 2, 3 Stat. 2..................... 44 Page. 1813, Dec. 17, c. 1, 3 Stat. 88.................... 425 1815, Mar. 3, c. 77, 3 Stat. 224............... 425, 443 1817, Mar. 3, c. 39, 3 Stat. 361................... 425 1824, Jan. 7, c. 4, 4 Stat. 2.. 425 1828, May 4, c. Ill, 4 Stat. 308................... 425 1830, May 31, c. 219, 4 Stat. 425 .................. 425 1841, Aug. 19, c. 9, § 8, 5 Stat. 440 .................. 371 1862, July 2, c. 130, 12 Stat. 503 .............. 254, 258 1866, Mar. 6, c. 12, 14 Stat. 3 ................... 425 1866, July 28, c. 299, 14 Stat. 332, 336.............. 259 1867, Mar. 2, c. 176, § 2, 14 Stat. 518............. 372 1870, May 4, Res. No. 40, 16 Stat. 373............. 259 1872, June 7, c. 322, § 65, 17 Stat. 262............. 160 1879, May 17, c. 8, 21 Stat. 4 .................. 133 1883, Mar. 3, c. 102, 22 Stat. 484 .................. 254 1883, Mar. 3, c. 121, 22 Stat. 490 .................. 425 1884, May 29, c. 60, 23 Stat. 31, 32................ 443 1884, June 26, c. 121, 23 Stat. 53, 57 ............... 425 1884, June 26, c. 121, § 18, 23 Stat. 53............... 44 1884, July 5, c. 217, 23 Stat. 107, 108.............. 259 . LIX LX TABLE OF STATUTES CITED. Page. 1886, June 19, c. 421, 24 Stat. 79 .................. 425 1887, Feb. 4, c. 104, § 14, 24 Stat. 384............ 465 1887, Mar. 2, c. 314, 24 Stat. 440 ................. 254 1887, Mar. 3, c. 339, 24 Stat. 475 ................. 425 1887, Mar. 3, c. 373, § 2, 24 Stat. 554............. 63 1888, Aug. 13, c. 866, § 3, 25 Stat. 436............. 63 1888, Sept. 26, c. 1037, 25 Stat. 491............ 259 1889, Feb. 9, c. 122, 25 Stat. 659 ................. 443 1890, July 2, c. 647, § 1, 26 Stat. 209 ....... 271, 279 1890, July 2, c. 647, § 2, 26 Stat. 209.. 271, 275, 279 1890, July 2, c. 647, § 4, 26 Stat. 209 ........... 279 1890, July 2, c. 647, § 7, 26 Stat. 209... 271,272,275 1890, Aug. 30, c. 839, 26 Stat. 414...................425 1890, Aug. 30, c. 841, 26 Stat. 417...................254 1890, Oct. 1, c. 1244, 26 Stat. 567, 616......... 425, 442 1890, Oct. 1, c. 1244, § 3, 26 Stat. 567............ 424 1891, Jan. 13, c. 70, 26 Stat. 716...................259 1891, Mar. 3, c. 517, 26 Stat. 826...................372 1893, Feb. 13, c. 105, §§ 1, 2, 3, 27 Stat. 445.... 303 1893, Feb. 15, c. 114, 27 Stat. 449, 452 ............ 425 1893, Nov. 3, c. 13, 28 Stat. 7.....................259 1895, Mar. 2, c. 169, 28 Stat. 727, 733............. 425 1897, Mar. 2, c. 358, 29 Stat. 604, 605 ............ 426 1897, June 4, c. 2, 30 Stat. 11, 35............... 443 1898, July 1, c. 541, § 1 (11), 30 Stat. 544 ........ 310 1898, July 1, c. 541, § 17 (2), (4), 30 Stat. 544.... 331 1898, July 1, c. 541, § 23, 30 Stat. 544............. 373 1898, July 1, c. 541, § 23 (a), 30 Stat. 544.... 368, 371 1898, July 1, c. 541, § 23 (b), 30 Stat. 544......... 368, 370, 371 1898, July 1, c. 541, § 63 (1), (4), 30 Stat. 544.... 331 1898, July 1, c. 541, § 63 (a), 30 Stat. 544.... 311, 371 1898, July 1, c. 541, § 63 (b), 30 Stat. 544.......... 371 1899, Mar. 3, c. 425, § 18, 30 Stat. 1153............ 427 1901, Feb. 26, c. 607, 31 Stat. 810....................259 1903, Feb. 5, c. 487, § 8, 32 Stat. 797 ............ 375 1903, Feb. 5, c. 487, §§ 13,16, 32 Stat. 797.......... 376 1904, Apr. 21, c. 1403, 33 Stat. 225............. 259 1905, Feb. 1, c. 288, 33 Stat. 628 .................. 443 1906, Mar. 16, c. 951, 34 Stat. 63 ................... 254 1906, June 29, c. 3591, § 3, 34 Stat. 589 ............ 465 1907, Mar. 2, c. 2564, 34 Stat. 1246 .................. 59 1907, Mar. 4, c. 2907, 34 Stat. 1256 ................. 254 1908, Apr. 22, c. 149, 35 Stat. 65..................... 45 1909, Mar. 4, c. 321, § 37, 35 Stat. 1088............ 133 1910, June 23, c. 373, 36 Stat. 604 ................ 44,46 1910, June 25, c. 387, § 1, 36 Stat. 819............. 134 1910, June 25, c. 412, 36 Stat. 838, 840 ............. 377 1911, Feb. 7, c. 103, § 2, 36 Stat. 913 ........ 457,459 1911, Mar. 3, c. 231, § 65, 36 Stat. 1104............. 63 1911, Mar. 3, c. 231, § 238, 36 Stat. 1157............ 275 1912, Mar. 14, Res. No. 10, 37 Stat. 630............. 425 1913, Jan. 23, c. 9, 37 Stat. 650 .................. 134 TABLE OF STATUTES CITED. LXI Page. 1914, May 8, c. 79, 38 Stat. 372....................255 1914, Sept. 26,’c.*3Ü,’38 Stat. 717....................443 1915, Mar. 4, c. 153, § 20, 38 Stat. 1185......... 45,159 1915, Mar. 4, c. 169, 38 Stat. 1192 ................. 459 1916, June 3, c. 134, §§ 40-47, 39 Stat. 166......... 259 1916, Sept. 8, c. 463, 39 Stat. 756, 799.............. 425 1916, Sept. 8, c. 463, § 13 (d), 39 Stat. 756......... 284 1917, Feb. 23, c. 114, 39 Stat. 929 .................. 255 1917, June 15, c. 30, 40 Stat. 217....................425 1917, Aug. 10, c. 53, 40 Stat. 276 .................. 425 1917, Oct. 3, c. 63, 40 Stat. 300 .................. 187 1917, Oct. 3, c. 63, § 1201, 40 Stat. 300............. 147 1917, Oct. 6, c. 105, § 400, Art. IV, 40 Stat. 398. 504 1917, Oct. 6, c. 106, 40 Stat. 411....................425 1917, Oct. 6, c. 106, §§ 4 (b), 5 (a), 40 Stat. 411... 428 1918, Mar. 28, c. 28, 40 Stat. 459, 460.............. 428 1919, Feb. 24, c. 18, 40 Stat. 1057... 174,187,283,316 1919, Feb. 24, c. 18, § 200, 40 Stat. 1057............ 129 1919, Feb. 24, c. 18, § 204 (b), 40 Stat. 1057....... 128 1919, Feb. 24, c. 18, §§ 212 (b), 213 (a), 40 Stat. 1057 ................. 284 1919, Feb. 24, c. 18, § 226, 40 Stat. 1057................... 129 1919, Feb. 24, c. 18, § 234, 40 Stat. 1057............ 284 1919, Feb. 24, c. 18, § 234 (a) (4), 40 Stat. 1057.... 283 1919, Feb. 24, c. 18, § 240, 40 Stat. 1057............ 129 1919, Feb. 24, c. 18, § 250 (d), 40 Stat. 1057......... 187 Page. 1919, Mar. 3, c. 100, § 4, 40 Stat. 1309............ 93 1919, Mar. 4, c. 125, 40 Stat. 1348, 1350........... 425 1919, Oct. 29, c. 89, § 4, 41 Stat. 324........ 133,134 1920, Feb. 28, c. 91, §§ 405- 408, 41 Stat. 456.... 440 1920, Mar. 30, c. Ill, 41 Stat. 537 .................. 45 1920, May 10, c. 174, 41 Stat. 593 ................. 443 1920, June 4, c. 227, §§ 33, 34, 41 Stat. 759 ...... 259 1920, June 5, c. 240, 41 Stat. 948 ................. 259 1920, June 5, c. 250, 41 Stat. 988 .................. 38 1920, June 5, c. 250, § 30, 41 Stat. 988.......... 30,38 1920, June 5, c. 250, § 31, 41 Stat. 988........... 157 1920, June 5, c. 250, § 33, 41 Stat. 988.... 45,156,159 1921, June 10, c. 20, 42 Stat. 27 .................. 440 1921, Nov. 23, c. 136, 42 Stat. 227 .... 174, 283,290,317 1921, Nov. 23, c. 136, § 200, 42 Stat. 227....... 129 1921, Nov. 23, c. 136, § 204 (b), 42 Stat. 227.... 128 1921, Nov. 23, c. 136t, § 205 (a) , 42 Stat. 227.... 176 1921, Nov. 23, c. 136, § 206, 42 Stat. 227......... 148 1921, Nov. 23, c. 136, §§ 212 (b) , 213 (a), 42 Stat. 227 ................. 284 1921, Nov. 23, c. 136, § 214 (a), 42 Stat. 227.... 293 1921, Nov. 23, c. 136, § 226, 42 Stat. 227......... 129 1921, Nov. 23, c. 136, § 234, 42 Stat. 227 ........ 284 1921, Nov. 23, c. 136, § 234 (a) (1), 42 Stat. 227 . 293 1921, Nov. 23, c. 136, § 234 (a) (4), 42 Stat. 227 . 283 1921, Nov. 23, c. 136, § 236 (b) , 42 Stat. 227.... 291 LXII TABLE OF STATUTES CITED. Page. 1921, Nov. 23, c. 136, § 239 (a), 42 Stat. 227..... 176 1921, Nov. 23, c. 136, § 240, 42 Stat. 227.... 129,291 1921, Nov. 23, c. 136, § 240 (a), 42 Stat. 227..... 355 1921, Nov. 23, c. 136, § 250 (d), 42 Stat. 227.... 176, 187 1922, Jan. 31, c. 44, 42 Stat. 361 .................. 425 1922, Sept. 21, c. 356, 42 Stat. 858, 941, 942......... 429 1924, June 2, c. 234, 43 Stat. 253 .... 184, 290,293,317 1924, June 2, c. 234, § 200 (a), 43 Stat. 253.... 129 1924, June 2, c. 234, § 208, 43 Stat. 253............. 148 1924, June 2, c. 234, §§ 214 (a) , 234 (a) (1), 43 Stat. 253............. 293 1924, June 2, c. 234, §§ 236 (b) , 240, 43 Stat. 253. 291 1924, June 7, c. 320, § 303, 43 Stat. 607............. 230 1924, June 7, c. 348, 43 Stat. 653 .................. 255 1924, June 7, c. 355, 43 Stat. 659 .................. 459 1925, Feb. 12, c. 213, § 3, 43 Stat. 883... 451,452,453 1925, Feb. 12, c. 213, § 4, 43 Stat. 883 ............ 453 1925, Feb. 13, c. 229, 43 Stat. 936......... 526, 532, 534 1925, Feb. 13, c. 229, § 8 (a), 43 Stat. 936........ 610 1925, Feb. 24, c. 308, 43 Stat. 970................... 255 1925, Mar. 4, c. 553, 43 Stat. 1302.................. 230 1926, Feb. 26, c. 27, 44 Stat. 9.................... 184, 290, 293, 315, 323 1926, Feb. 26, c. 27, §§ 2, 200, 44 Stat. 9.......... 125 1926, Feb. 26, c. 27, § 200 (a), 44 Stat. 9....... 124 1926, Feb. 26, c. 27, § 204 (a) (9), 44 Stat. 9........324 Page. 1926, Feb. 26, c. 27, § 204 (c)(2), 44 Stat. 9.. 314, 315, 324 1926, Feb. 26, c. 27, § 206, 44 Stat. 9............ 122 1926, Feb. 26, c. 27, § 208, 44 Stat. 9............ 148 1926, Feb. 26, c. 27, § 212, 44 Stat. 9............... 127 1926, Feb. 26, c. 27, §§ 212 (a), 213 (a), 44 Stat. 9..................... 224 1926, Feb. 26,* c.* *27,* § 2Ì4 (a) , 44 Stat. 9..... 293 1926, Feb. 26, c. 27, § 217, 44 Stat. 9............. 85 1926, Feb. 26, c. 27, § 232, 44 Stat. 9............ 1?7 1926, Feb. 26, c. 27, § 233 (b) , 44 Stat. 9..... 85 1926, Feb. 26, c. 27, § 234 (a) (1), 44 Stat. 9........293 1926, Feb. 26, c. 27, § 234 (a) (8), 44 Stat. 9.. 314, 315 1926, Feb. 26, c. 27, §§ 236 (b), 240, 44 Stat. 9.. 291 1926. Feb. 26, c. 27, § 274 (b) , 44 Stat. 9.....516 1926, Feb. 26, c. 27, § 274 (e), 44 Stat. 9........ 512, 516 1926, Feb. 26, c. 27, § 277 (a) (1), 44 Stat. 9....... 185 1926, Feb. 26, c. 27, § 906 (c) , (d), 44 Stat. 9.. 516 1926, Feb. 26, c. 27, § 1003 (b), 44 Stat. 9.......512 1926, Feb. 26, c. 27, § 1005 (a)(4), 44 Stat. 9... 193 1926, Feb. 26, c. 27, §§ 1111, 1116 (a), 44 Stat. 9.. 86 1926, Apr. 13, c. 130, 44 Stat. 247 ................. 254 1926, May 27, c. 406, 44 Stat. 662, 664.............. 374 1927, Feb. 9, c. 90, 44 Stat. 1065 ................. 255 1927, Feb. 23, c. 169, 44 Stat. 1162, 1163 ........... 428 1927, Mar. 4, c. 509, 44 Stat. 1424 .............. 45,159 1928, Mar. 28, c. 263, 45 Stat. 373 .................. 428 TABLE OF STATUTES CITED. LXIII Page. 1928, May 12, c. 530, 45 Stat. 501 .................. 259 1928, May 22, c. 687, 45 Stat. 711................... 255 1928, May 29, c. 852, 45 Stat. 791 .................. 293 1928, May 29, c. 852, § 21, 45 Stat. 791... 145,147,224 1928, May 29, c. 852, § 22, 45 Stat. 791............. 147 1928, May 29, c. 852, § 22 (a), 45 Stat. 791......... 224 1928, May 29, c. 852, § 23, 45 Stat. 791............. 147 1928, May 29, c. 852, §§ 25, 31, 45 Stat. 791...... 150 1928, May 29, c. 852, § 52, 45 Stat. 791........... 59,60 1928, May 29, c. 852, § 101, 45 Stat. 791........ 148 1928, May 29, c. 852, § 101 (c) (7), 45 Stat. 791. 145 1928, May 29, c. 852, § 102, 45 Stat. 791.......... 150 1928, May 29, c. 852, § 111 (a) , (d), 45 Stat. 791.............x. • • • 509 1928, May 29, c. 852, § 112, 45 Stat. 791.......... 468 1928, May 29, c. 852, § 112 (b) (3), 45 Stat. 791 .................. 509 1928, May 29, c. 852, § 112 (g), 45 Stat. 791.... 467, 468 1928, May 29, c. 852, § 113 (a) (6), 45 Stat. 791 .................. 509 1928, May 29, c. 852, § 146 (a) , 45 Stat. 791.. 59,61 1928, May 29, c. 852, § 146 (b) , (c), 45 Stat. 791.................... 59 1928, May 29, c. 852, § 701, 45 Stat. 791........ 59,61 1930, June 17, c. 497, 46 Stat. 590, 704 ........... 425 1932, June 6, c. 209, § 23 (1), 47 Stat. 169.... 325 1933, Mar. 9, c. 1, 48 Stat. 1......................443 89995®—35-----V Page. 1933, May 12, c. 25, § 43, 48 Stat. 31................443 1933, June 16, c. 90, Title I, § 1, 48 Stat. 195.... 416 1933, June 16, c. 90, Title I, § 3 (f), 48 Stat. 195................... 409 1933, June 16, c. 90, Title I, § 9 (c), 48 Stat. 195 ............... 406-448 1933, June 16, c. 90, Title I, § 10 (a), 48 Stat. 195............. 407, 414 1934, May 10,-c. 277, § 23 (m), 48 Stat. 680.. 325 1934, June 7, c. 434, 48 Stat. 911................... 311 1934, June 18, c. 580, 48 Stat. 991.....................310 Constitution. See Index at end of volume. Judicial Code: § 65................ 63, 65 § 128................... 451 § 129.. 379, 381-3, 451, 452 § 237 (a).... 250, 258, 534 § 237 (c)............... 534 § 238 .............. 59, 526 § 238 (4)............... 532 § 265................... 453 § 266.............. 167, 411 § 269................... 476 § 274 (b).. 381-3, 387, 452 § 274 (c)............. 244 § 289................. 374 Revised Statutes: § 1225................ 259 § 2174................ 157 §§ 2493,2494,4219,4228 . 425 §§ 4511, 4515, 4517, 4525, 4527,4530,4561...... 157 § 4612.................... 161 § 4915.................... 4,5 § 4918...................... 4 U. S. Code: Title 7, §§ 301-308....... 254 Title 8, § 381........... 263 Title 10, §§ 381-390.... 259 Title 11: § 1.................. 310 § 35................. 331 LXIV TABLE OF STATUTES CITED. U. S. Code—Continued. Title 11: Page. § 46 (a), (b).......368 § 103.............. 310 § 103 (a)........ 331 Title 15: § 1................ 271 § 2................ 272 § 709 (c).........406 § 710 (a)....... 407 Title 18: §§ 88,408......... 133 § 682............. 59 § 714............ 134 Title 26: § 640............ 193 §§ 1048 (a),(c), 1217 (c), (d)...... 516 § 2021........... 145 § 2101....... 145,148 Title 28: c. 14............. 135 § 124............. 63 § 227........ 379,381 § 344 (a).... 250,522 § 344 (b)......... 17 § 345............. 59 § 350............ 610 § 380.... 167,168,411 § 384............ 384 S 391............ 476 U. S. Code—Continued. Title 28 : Page. § 398..... 381,382,387 §§ 451,452,453...... 136 § 837............. 157 § 862............. 191 Title 33, §§ 901, 903.... 159 Title 35, §§ 63, 66.. 4 Title 38, §514..........230 Title 46: § 192............ 303 §§ 564, 568, 570, 592, 594, 597, 658... 157 § 688............ 156 § 713............ 160 § 911...........35,40 §§ 911-984......... 30 § 921............. 36 § 922............. 33 §§ 923, 924, 925, 927, 941.............. 37 § 951.............. 32 § 953.............. 35 § 954 ............. 36 Title 49, §§ 3, 4, 5....440 U. S. Code App.: Title 26: §§ 149,153 ........ 86 § 931............ 124 §§ 935,986 ....... 314 U. S. Code Supp. VII: Title 26, § 641 (c) (1).. 512 (B) Statutes of the States and Territories. Alabama: Page. Constitution, 1819, 1865, 1867 ................ 267 Arkansas : Constitution, 1868 (Thorpe, vol. 1, p. 325) ................ 267 California: Constitution, Art. IX, § 9, as amended Nov. 5, 1918 ............ 255,257 1867-8 Stats., p. 248, §§ 3, 4, 5, 6...;....... 255 1923 Stats., 571........ 63 1931 Stats., c. 85, 105; c.86,119; c.793,1652; c. 997, 2001; c. 1082, 2288 ........... 63 Colorado : Page. Constitution, 1876 (Thorpe, vol. 1, p. 507)................ 267 Delaware : Rev. Stats., § 3884. 238 District of Columbia: Code, Title 22, § 24. 345,351 Idaho: Constitution, 1889 (Thorpe, vol. 2, p. 943)................ 267 Illinois : Constitutions, 1819, 1870 (Thorpe, vol. 2, pp. 980, 1044)........ 267 TABLE OF STATUTES CITED. LXV Indiana: Page. Constitution, 1816 (Thorpe, vol. 2, p. 1067)................. 267 Iowa: Constitutions, 1846, 1857 (Thorpe, vol. 2, pp. 1132, 1148)........... 267 Kansas : Constitutions, 1855,1857, 1859 (Thorpe, vol. 2, pp. 1190, 1214, 1253). 267 Kentucky : Constitutions, 1792,1799, 1850, 1890 (Thorpe, vol. 3, pp. 1271, 1283, 1307, 1350)........... 267 Louisiana: Constitutions, 1879, 1898 (Thorpe, vol. 3, pp. 1501, 1587)........... 267 Maryland : 1898 Laws, c. 123, § 720. 234 1933 Acts (Special Sess.), c. 56 ............ 234-236 Massachusetts : 1758, Acts and Resolves, vol. 4, p. 159 ..... 267 1759, Acts and Resolves, vol. 4, p. 193...... 267 1909 Acts, c. 514, § 25.. 223 1918 Special Acts, c. 159 . 220 1918 Special Acts, c. 159, § 1................. 223 Rev. Laws, c. 7, § 1...223 Michigan : Constitution, 1850 (Thorpe, vol. 4, p. 1966).._...............267 Mississippi : Constitution, 1817 (Thorpe, vol. 4, p. 2041)................. 267 Missouri: Constitutions, 1820, 1875 (Thorpe, vol. 4, pp. 2164, 2268)......... 267 New Hampshire: Constitutions, 1794, 1902 (Thorpe, vol. 4, pp. 2473, 2495)........... 267 New York: Page. Constitutions, 1821, 1846 (Thorpe, vol. 5, pp. 2648,2671)...... 267 1755, Colonial Laws, vol. 3, pp. 1068, 1069.... 267 1933 Laws, c. 158......... 168 1933 Laws, c. 158, § 258 (q)..................... 201 1933 Laws, c. 158, § 312 (d), (f)................ 172 1933 Laws, c. 158, § 317 (c)......................200 1933 Laws, c. 745. 189 1934 Laws, c. 126.. 168,200 1934 Laws, c. 126, § 253..................... 202 Negotiable Instruments Law, § 42....... 345 Negotiable Instruments Law, § 116.......348 North Carolina: 1781, 24 State Records 156............. 267 Pennsylvania: Constitutions, 1790, 1838 (Thorpe, vol. 5, pp. 3099, 3111)..... 267 1919, June 20, P. L. 521, § 1...................... U6 1931, June 22, P. L. 690.......?............. 116 72 P. S., § 2301.......... 116 Vermont: Constitution, 1793 (Thorpe, vol. 6, p. 3763)........... 267 Virginia: 1738 and 1782 Laws (5 Hening 16; 8 id. 242-3; 10 id. 261-2, 334-5; 11 id. 18)..........267 1792 Acts, c. 66, § 23, p. 83....................... 83 1819 Rev. Code, c. 128, § 68, p. 506 ............ 83 Tax Code, § 73............. 18 Washington: 1911 Laws, c. 74, § 5 (h), p. 360..... 153 1923 Laws, c. 136, § 2 (h), p. 397............. 153 1927 Laws, c. 310, § 4 (h), p. 844............. 153 LXVI TABLE OF STATUTES CITED. Washington—Continued. Page. Remington’s Rev. Stats., § 7679 (h)....... 153 Wisconsin : 1923 Laws, c. 226... 259 1929 Stats., §§ 116.01, 116.02 .......... 362 1929 Stats., §§ 116.61, 116.08 .......... 363 Wyoming: Constitution, Art. XV, § 11............. 103 Wyoming—Continued. Page. 1931 Comp. Stats., §§ 115-119......... 103 1931 Comp. Stats., § 115-311......... 104 1931 Comp. Stats., § 115-511......... 103 1931 Comp. Stats., § 115-512......... 104 1931 Comp. Stats., § 115-1803........ 106 1931 Comp. Stats., § 115-1804..........’.... 103 (C) Foreign Statutes. Belgium: Page. Laws of Aug. 21, 1879; June 12, 1902; Feb. 10, 1908; Sept. 4, 1908 ................ 49 Denmark: Maritime Law of Apr. 1, 1892; Act 57 of Apr. 1, 1892; and Act 103 of Apr. 29, 1913..... 49 England: 31 Car. II, c. 2...... 136 31 Car. II, §§ II (2), III (6) (7)............. 137 10 Geo. Ill, c. 50...... 82 3 & 4 Viet., c. 65, §§ 3,4. 49 38 & 39 Viet., c. 77.. 489,492 6 Edw. VII, No. 48, § 34. 158 France: Act of July 10, 1885.... 49 Decree of June 18, 1886. 49 Italy: Page. 1883 Code of Commerce, Maritime Law......... 49 1866, Mercantile Marine Code, as amended.... 49 Netherlands : 1838, Code of Commerce, Maritime Law........ 49 Norway: Maritime Law of July 20, 1893, as amended by Acts of May 4, 1901, July 13, 1917, and July 9, 1930.......... 50 Yugoslavia: Check Law............ 343 (D) Treaties. Page. Briand-Kellogg Peace Pact, Aug. 27, 1928, 46 Stat. 2343.... 265,267 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1934. RADIO CORPORATION OF AMERICA et al. v. RADIO ENGINEERING LABORATORIES, INC. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 619 (October Term, 1933). Argued May 2, 3, 1934.—Decided May 21, 1934. Petition for rehearing denied, and opinion amended, Oct. 8, 1934. 1. Where this Court has affirmed a decree upholding a patent in a suit presenting the issue of priority between those who were rival claimants in the patent office proceedings, upon the ground that the unsuccessful party had failed to establish his superior right by thoroughly convincing evidence, the decree is not conclusive upon a stranger to that record in a subsequent suit against him for infringement, but it is persuasive as a precedent where the issue in the second suit and the evidence concerning it are the same as before. P. 7. 2. Patents Nos. 1,507,016 and 1,507,017, to Lee De Forest, Sept. 2, 1924, for a “ feed back ” and an audion “ oscillator,” sustained upon the evidence as to priority of discovery. P. 10. 3. A patentee is entitled not only to the uses for his invention that were apparent when it was made, but also to other uses then dimly apprehended but realized later. P. 14. 66 F. (2d) 768, reversed; 1 F. Supp. 65 (D. C.), affirmed. Certiorari, 290 U. S. 624, to review the reversal of a decree of the District Court sustaining patents upon the ground of priority, in a suit brought by their assignees 89995°—35--1 1 2 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. against an infringer. Because of the pendency of a petition for rehearing, the opinion, delivered at the last Term, was not published in vol. 292. It is now printed with the amendments that were directed by the order of October 8, 1934, denying the rehearing. See post, p. 522. Messrs. Thomas G. Haight and Samuel E. Darby, Jr., with whom Messrs. James R. Sheffield, William R. Ballard, and Abel E. Blackmar, Jr., were on the brief, for petitioners. Mr. William H. Davis for respondent. Mr. Justice Cardozo delivered the opinion of the Court. The petitioners, assignees of two patents, numbers 1,507,016 and 1,507,017, granted to Lee De Forest on September 2, 1924, have sued to restrain an infringement and for other relief. The respondent, defendant in the trial court, admits the infringement if the patents are valid, but maintains that they are void in that they were issued to a patentee who was not the first inventor. Long before this suit the rival claimants to the invention, Armstrong and De Forest, had fought out between themselves the legal battle now renewed. The outcome of their contest was a decree whereby priority of invention was found in accordance with the patents now assailed by the respondent, a decree binding on the claimants and their several assignees. For the purpose of any controversy between Armstrong and De Forest the validity of the patents must be accepted as a datum. Even for the purpose of a controversy with strangers there is a presumption of validity, a presumption not to be overthrown except by clear and cogent evidence. The question is whether the respondent has sustained that heavy burden, RADIO CORP. v. RADIO LABORATORIES. 3 1 Opinion of the Court. At the outset there were four claimants to priority of title. All four, acting independently, had made the same or nearly the same discovery at times not widely separate. The prize of an exclusive patent falls to the one who had the fortune to be first. Du Bois v. Kirk, 158 U.S. 58, 66; Evans v. Eaton, 3 Wheat. 454. The others gain nothing for all their toil and talents. Of the four claimants Langmuir filed an application for a patent on October 29, 1913, claiming August 1, 1913, as the date of his invention. Armstrong filed an application on October 29, 1913, and a second one on December 18, 1913, fixing the date of his invention as the fall of 1912 or the beginning of 1913. As early as October 6, 1914, he received a patent covering the subject matter of his first application (patent No. 1,113,149), but not the subject matter of his second. Meissner filed an application on March 16, 1914, fixing the date of his invention as April 9, 1913. De Forest filed an application on March 20,1914, and another on September 23, 1915, fixing as the date of his invention August 6, 1912, the earliest date of all, which would make him the first inventor if the claim could be made good. Interferences were declared by the Patent Office as the result of these conflicting applications. One involved the applications of De Forest and Langmuir; another the applications of De Forest, Langmuir and Meissner; a third the applications by De Forest, Langmuir and Meissner and also the second one of Armstrong’s, the only one of his then pending. While these interferences were still undecided, Armstrong and his assignee brought suit for the infringement of patent No. 1,113,149, which had been issued to him in October, 1914, the defendant in that suit being the De Forest Radio Telephone & Telegraph Company. The District Court (per Mayer, J.) fixed the date of Armstrong’s discovery as January 31, 1913, rejected De Forest’s claim to discovery on August 6, 1912, and gave 4 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. an interlocutory decree for an injunction and an accounting. 279 Fed. 445. The Circuit Court of Appeals (per Manton, J.) affirmed. 280 Fed 584. In the meanwhile the interference proceedings went on in the Patent Office. On March 31,1923, the Commissioner of Patents rendered a decision which gave priority to Armstrong. There was an appeal to the Court of Appeals of the District of Columbia, invested at that time with supervisory jurisdiction in the administration of the patent laws. Butterworth v. Hoe, 112 U.S. 50, 60; Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693. The Court of Appeals reversed the decision of the Commissioner, and decreed priority of invention in favor of De Forest. 54 App.D.C. 391; 298 Fed. 1006. On September 2, 1924, pursuant to the mandate of that court, patents numbers 1,507,016 and 1,507,017 were issued by the Patent Office. The fight was far from ended. Already there was pending in the District Court in Delaware a suit brought under the authority of R.S. § 4915 (35 U.S.C. § 63 x) to direct the issuing of a patent to Meissner or his assigns. After the decree in the District of Columbia there was a suit in Pennsylvania under R.S. § 4918 (35 U.S.C. § 662), 1 “ Whenever a patent on application is refused, either by the Commissioner of Patents or by the Court of Appeals of the District of Columbia upon appeal from the Commissioner, the applicant may have remedy by bill in equity; and the court having cognizance thereof, on notice to adverse parties and other due proceedings had, may adjudge that such applicant is entitled, according to law, to receive a patent for his invention, as specified in his claim, or for any part thereof, as the facts in the case may appear. . . .” ’“Whenever there are interfering patents, any person interested in any one of them, or in the working of the invention claimed under either of them, may have relief against the interfering patentee, and all parties interested under him, by suit in equity against the owners of the interfering patent; and the court, on notice to adverse parties, and other due proceedings had according to the course of equity, may adjudge and declare either of the patents void in whole or in RADIO CORP. v. RADIO LABORATORIES. 5 1 Opinion of the Court. which was brought by the assignee of the De Forest patents to set aside the Armstrong patent of October, 1914 (No. 1,113,149), all the interested parties being joined as defendants. Later on there was still another suit in Delaware, under R.S. § 4915, to establish priority for Langmuir. The suit in Pennsylvania came to a decree in July, 1926. The decision was in favor of De Forest, 13 F. (2d) 1014, the court adjudging that the holder of the Armstrong patent had failed to overcome the presumption of validity attaching to the De Forest patents under the administrative ruling in the District of Columbia, and that the earlier decision in New York (279 Fed. 445, 280 Fed. 584) did not sustain the defense of res judicata for the reason that the cause had never gone to final judgment. In February and March, 1927, the two suits in Delaware were decided the same way. 18 F. (2d) 338; 18 F. (2d) 345. The decrees in the three suits came up for review before the Circuit Court of Appeals for the Third Circuit. All three were affirmed with a comprehensive opinion by Woolley, J., marshalling the evidence and weighing the competing arguments. As the upshot the court held that the presumption of validity which protected the De Forest patents had not been overthrown, and that apart from any presumption De Forest had made out his title as the original inventor. 21 F. (2d) 918. Writs of certiorari brought the controversy here. 278 U.S. 562. This court affirmed the decree on the authority of Morgan v. Daniels, 153 U.S. 120, and Victor Talking Machine Co. v. Bruizs wick-Balke-Coll end er Co., 273 U.S. 670. The first of those cases lays down the rule part, or inoperative, or invalid in any particular part of the United States, according to the interest of the parties in the patent or the invention patented. But no such judgment or adjudication shall affect the right of any person except the parties to the suit and those deriving title under them subsequent to the rendition of such judgment.” 6 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. that “ where the question decided in the Patent Office is one between the contesting parties as to priority of invention, the decision there made must be accepted as controlling upon that question of fact in any subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction.” 153 U.S. at p. 125. The second case (273 U.S. 670) adds to that presumption of validity the support of the familiar principle, repeatedly applied in our decisions, that the concurrent findings of the courts below will be accepted by this court “ unless clear error is shown.” See, e.g., United States v. State Investment Co., 264 U.S. 206, 211; Texas & N. 0. R. Co. v. Brotherhood of Railway Clerks, 281 U.S. 548, 558; United States v. Commercial Credit Co., 286 U.S. 63, 67. One might have supposed that controversy would have been stilled after all these years of litigation. It proved to be not so. The petitioners, after repelling every assault from within the ranks of rival claimants, found it necessary to meet a challenge from without. The respondent, Radio Engineering Laboratories, Inc., allying itself with Armstrong, who is paying its expenses, insists that the invention is at large for the reason that De Forest, who received the patents, is not the true inventor, and that Armstrong, who is the inventor, is barred by a final judgment, conclusive between himself and the pretender, from obtaining the patent that is due him, and with it an exclusive right. The evidence in this suit for an infringement is a repetition, word for word, of the evidence in the earlier suits, so far as material to the conflicting claims of Armstrong and De Forest. What has been added is so nearly negligible that to all intents and purposes the records are the same. The District Court (per Campbell, J.) held upon that evidence that the respondent had not succeeded in overcoming the De Forest patents, and entered a decree for the complainants. 1 F.Supp. 65. Upon RADIO CORP. v. FADIO LABORATORIES. 7 1 Opinion of the Court. appeal to the Court of Appeals for the Second Circuit, the decree was reversed by a divided court with instructions to dismiss the bill. 66 F. (2d) 768. A majority of the court adhered to the conclusion which it had announced eleven years before. 280 Fed. 584. A dissenting opinion enforced the view that De Forest’s title as inventor, conclusively established as between himself and Armstrong, should be held, upon substantially the same record, to be good also against others. A writ of certiorari issued from this court. 290 U.S. 624. The judgments in the suits between Armstrong and De Forest and their respective assignees are not conclusive upon the respondent, a stranger to the record. This is so by force of the accepted limitations of the doctrine of res judicata. It is so by force of the statute (R.S. § 4918), which provides in so many words that “ no such judgment or adjudication shall affect the right of any person except the parties to the suit and those deriving title under them subsequent to the rendition of such judgment.” But the respondent does not move very far upon the pathway to success by showing that what has been heretofore determined is without conclusive force. A patent regularly issued, and even more obviously a patent issued after a hearing of all the rival claimants, is presumed to be valid until the presumption has been overcome by convincing evidence of error. The force of that presumption has found varying expression in this and other courts. Sometimes it is said that in a suit for infringement, when the defense is a prior invention, “the burden of proof to make good this defense ” is “ upon the party setting it up,” and “ every reasonable doubt should be resolved against him.” Cantrell v. Wallick, 117 U.S. 689, 695, 696; Coffin v. Ogden, 18 Wall. 120, 124; The Barbed Wire Patent, 143 U.S. 275, 285; Washburn v. Gould, 3 Story 122, 142; H. J. Heinz Co. v. Cohn, 207 Fed. 547, 554; Detroit Motor Appliance Co. v. Burke, 4 8 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. F. (2d) 118, 122; Wilson & Willard Mfg. Co. v. Bole, 227 Fed. 607, 609; Stoody Co. v. Mills Alloys, Inc., 67 F. (2d) 807, 809; of. Morgan v. Daniels, supra, p. 123. Again it is said that “the presumption of the validity of the patent is such that the defense of invention by another must be established by the clearest proof—perhaps beyond reasonable doubt.” Austin Machinery Co. v. Buckeye Traction Ditcher Co., 13 F. (2d) 697, 700. The context suggests that in these and like phrases the courts were not defining a standard in terms of scientific accuracy or literal precision, but were offering counsel and suggestion to guide the course of judgment. Through all the verbal variances, however, there runs this common core of thought and truth, that one otherwise an infringer who assails the validity of a patent fair upon its face bears a heavy burden of persuasion, and fails unless his evidence has more than a dubious preponderance. Cf. Philippine Sugar E. D. Co. v. Philippine Islands, 247 U.S. 385, 391. If that is true where the assailant connects himself in some way with the title of the true inventor, it is so a fortiori where he is a stranger to the invention, without claim of title of his own. If it is true where the assailant launches his attack with evidence different, at least in form, from any theretofore produced in opposition to the patent, it is so a bit more clearly where the evidence is even verbally the same. From all this it results that a stranger to a patent suit does not avoid altogether the consequences of a judgment rendered in his absence by establishing his privilege under the doctrine of res judicata to try the issues over again. If he has that opportunity and there is substantial identity of evidence, he may find that the principle of adherence to precedent will bring him out at the end where he would be if he had been barred at the beginning. Cf. National Folding Box & Paper Co. v. American Paper Pail & Box Co., 48 RADIO CORP. v. RADIO LABORATORIES. 9 1 Opinion of the Court. Fed. 913; Rousso v. First Nat. Bank, 37 F. (2d) 281; Cary v. Domestic Spring-Bed Co., 27 Fed. 299; 3 Robinson, Patents, § l(fl7. This court in affirming the decrees in favor of De Forest did not say out and out that it would have reached the same conclusion upon the issue of priority if it had been itself the trier of the facts. It did, however, say in substance that Armstrong had failed to establish his own superior right by evidence sufficient to carry thorough conviction to the mind (Morgan v. Daniels, supra), or by evidence of manifest error in the findings of the courts below. We do not need to go into the question whether Morgan v. Daniels is applicable in all its force unless the parties to the later suit were parties also to the contest in the administrative proceeding. There are statements in the opinion (153 U.S. at pp. 124, 125) with reference to the analogy between a patent and a judgment that presuppose, perhaps, identity of parties. Cf. Rousso v. Barber, 3 F. (2d) 740; Rousso v. First Nat. Bank, supra. Be that as it may, the requirement of evidence sufficient to carry conviction to the mind is little more than another form of words for the requirement that the presumption of validity shall prevail against strangers as well as parties unless the countervailing evidence is clear and satisfactory. Nice distinctions are suggested between the application of these principles by the court that finds the facts and their application by the court that sits as a reviewing body, though we know that an appeal in equity imports a broad power of revision. Conceivably, we are told, a court might have a clear conviction that the validity of a patent had been successfully impeached, if it were passing upon the issue unhampered by the views of others, and yet the conviction might not be clear enough to overthrow a holding to the contrary approved by other 10 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. judges. Gradations of difference so subtle are not susceptible of pursuit without leading us into a land of shadows. This court held the view when these patents were last before it that the evidence was insufficient to overcome the presumption of their validity in any clear or certain way. If our estimate of probative values had been different, the invention must have gone to Armstrong, no matter though other courts or administrative officers had been persuaded to the contrary. The evidence that was insufficient at that time to evoke a clear conviction that the patents were invalid is the same in all essentials as the evidence before us now. We must pronounce a like decree unless we are prepared to say in the light of fuller argument that the first decree was wrong. The record has been reexamined patiently without inducing that persuasion. After all that has been written about the De Forest patents in these many years of litigation, there is no need to fill the pages of our reports with an analysis of the opposing arguments as if we were a court of first instance trying the controversy anew. For present purposes it is enough to bring out into sharp relief a few considerations of dominating significance. Patent No. 1,507,017 is for an invention known as a “ feed-back circuit ” and patent No. 1,507,016 for an invention known as the audion “ oscillator.” The two, however, are closely associated, for the oscillator can be produced only by use of the feed-back circuit, though the feed-back circuit can be used without producing an oscillator. As far back as 1908, De Forest had received a patent for a form of vacuum tube to which he gave the name of “ audion.” The Fleming vacuum tube in use up to that time had in it a metallic filament, which was electrically heated to incandescence through an input circuit, and a cold metallic plate to which electrons were trans- RADIO CORP. v. RADIO LABORATORIES. 11 1 Opinion of the Court. mitted from the filament, passing from the plate to another or output circuit. De Forest’s “ audion ” changed the Fleming tube by interposing a special wire known as the “ grid ” between the filament and the plate, thereby increasing its capacity as a detector of waves of radio or inaudible frequency and serving better to transform them into waves of audible frequency. The device established itself almost at once as a revolutionary improvement in the art of transmitting sounds at great distances by wire and through the air. At the beginning, however, its potencies were not fully appreciated by electrical experts, not even by its inventor. Many experiments were made with a view to exploring its capacities and developing them. Among those interested and curious was Armstrong, then a very young man, a student in the school of electrical engineering at Columbia University. He conceived the idea about January, 1913, that through a hook-up or coupling of the output and the input circuit there would be a feed-back or regeneration of energy whereby the plate in the audion would become an independent generator of continuous oscillations. Tuning the circuit to the appropriate frequency, he found that the messages communicated through the antenna of a radio station were heard with a new clearness. Signals from distant lands were borne to him across the seas. It was a brilliant conception, but another creative mind, working independently, had developed it before in designs and apparatus till then unknown to the art. De Forest with his assistant Van Etten had been working during the summer of 1912 along two lines of thought. One was the use of the audion as a telephone repeater to amplify weak telephone currents and thus facilitate the transmis-sion of long distance messages. The other was its development as a generator of alternating currents for any and all uses, some perhaps indefinite, that were capable of 12 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. being served by oscillations thus produced. On August 6, 1912, a diagram showing a feed-back hook up of the input and output circuits is recorded in Van Etten’s note book with a note that by the use of the coupling “ a beautiful clear tone” had been developed, which means that oscillations had been produced and that the oscillations were sustained. There is also a note that the pitch, i.e., the frequency, was varied by altering the plate voltage, which means, or was understood, we are told, by De Forest to mean, that by other simple adjustments the frequency of the oscillations could be varied at will. Armstrong does not deny that all this was done just as stated by De Forest. Indeed the authenticity of the note-book entries has never been disputed through the many phases of the controversy. What Armstrong does deny is that anything done or recorded in August, 1912, is an anticipation of his own invention. He says that the sustained oscillations generated at that time were of audio and not of radio frequency, and this, it seems, is admitted. He says there was then no perception or thought that the audion plate could be made to oscillate at radio as well as audible frequencies through a coupling of the circuits. This De Forest denies. He maintains, with the backing of other witnesses, that upon discovering the effect of the feed-back in generating sustained oscillations of the plate, he understood at once that by controlling the inductance or capacity in the oscillating circuit he could also control the frequency. This, he says in substance, must have been obvious upon reflection to any competent electrician, though there would be need of a certain amount of adjustment and experiment in substituting the correct inductance or capacity, a process, it is argued, that would be well within the ability of any one skilful in the art. Beyond this he insists that having discovered the generative virtue of the feed-back, he was not confined in his invention to the uses then developed, but if his patent RADIO CORP. v. RADIO LABORATORIES. 13 1 Opinion of the Court. claims were broad enough was entitled to the benefit of other and* related uses made manifest thereafter. We think that for all these contentions of De Forest adequate support exists in the record and the law. There is evidence that in August, 1912, he discussed with his assistants the possibility of using sustained oscillations of the audion in generating and transmitting radio waves as well as those of audio frequency. There is evidence that intermittently in 1913 he worked upon that theory, and particularly that on April 17 of that year at Palo Alto, California, he received a clear note, the true heterodyne beat note, from the radio signal station at San Francisco Beach with the aid of the coupled circuits. The entry in his note book made the same day tells us, “ This day I got the long looked for beat note.” This was long before he had heard of Armstrong or of like experiments by any one. There is evidence that in the early part of 1914, he renewed his investigations in that field of research, after being temporarily diverted, and finally on February 27, 1914, recorded in his note book, as the outcome of a number of experiments, that he had “ full proof that the audion acts as a generator of high frequency currents.” True there are circumstances that have been thought to bear against him. Thus, in December, 1913, he read a paper before the Institute of Radio Engineers on “ The Audion Detector and Amplifier.” In the discussion following the paper he made answers which, it is argued, are irreconcilable with a belief that there was a regenerative feed-back of radio frequencies from the plate circuit to the grid. He denies, however, that he intended to convey the meaning now ascribed to him, and insists that to his understanding in the heat of the discussion the audio and not the radio frequencies were the subject of the questions. Much is made also of his failure to perfect his invention promptly or to apply promptly for a 14 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. patent, the delay being extraordinary, it is argued, if a conception so important in its possibilities of’profit and utility was present in his mind. For this delay he gives his explanations, lack of funds, preoccupation with other uses of the audion having a cash value at the moment (its use, for illustration, as a telephone repeater), and perhaps chiefly the belief that he was a pioneer in the art without a rival in the offing. These explanations, even if not wholly convincing, are not so manifestly inadequate as to lead us to say that the conception of the oscillator as a generator of radio frequencies has been proved in any clear or certain way to have been developed and applied by Armstrong before it was born in De Forest’s mind. To say this, moreover, would not be enough, even if we were willing to go so far, which, as already stated, we are not. Vacuum tube oscillators have a commercial use for other purposes besides radio. If De Forest’s explanations and excuses were to be disregarded altogether, the result at most would be that the apparatus of the coupled circuits had potencies and values more important than the uses that were immediately apparent, potencies and values at least dimly apprehended, and never discarded or forgotten down to the time of their complete fruition. The benefit of all alike belonged to the inventor. Corona Cord Tire Co. n. Dovan Chemical Corp., 276 U.S. 358, 369; Roberts v. Ryer, 91 U.S. 150, 157; Stow v. Chicago, 104 U.S. 547, 550; cf. Lovell Manufacturing Co. v. Cary, 147 U.S. 623, 634; The Telephone Cases, 126 U.S. 1, 536; Robinson, Patents, Vol. 1, § 81, p. 124. The decree of the Circuit Court of Appeals should be reversed and that of the District Court affirmed. Reversed. The Chief Justice took no part in the consideration or decision of this case. VIRGINIA v. IMPERIAL COAL CO. Counsel for Parties. 15 VIRGINIA v. IMPERIAL COAL SALES CO., INC. CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA. No. 16. Argued October 12, 1934.—Decided November 5, 1934. 1. Where the highest court of a State, confronted with the two questions whether a state property tax is invalid under the state taxing statutes and whether the property is immune under the commerce clause of the Federal Constitution, prefers to rest its judgment, avoiding the assessment, explicitly and exclusively on the federal ground, the case is within the jurisdiction of this Court, under 28 U. S. C., § 344 (b). P. 16. 2. Intangible property of a corporation consisting of money on hand at the place of its principal office in the State that created it and the excess of its bills and accounts receivable there over its billseand accounts payable, has its situs for property taxation in that State. P. 19. 3. The facts that such intangible property is employed wholly in interstate commerce and that the owner has no real or tangible personal property in the State, do not exempt the intangible property from a non-discriminatory property tax by the State. P. 19. 4. Cases in which state taxes on the privilege of doing an interstate business were avoided as directly burdening interstate commerce or touching property beyond the jurisdiction of the State, are inapplicable to a non-discriminatory ad valorem tax on property used in interstate commerce within the taxing jurisdiction; for such property taxation affects interstate commerce only incidentally. P. 20. 161 Va. 718, 736; 167 S. E. 268, 172 S. E. 927, reversed. Certiorari, 292 U. S. 619, to review a judgment avoiding a state tax assessment for conflict with the commerce clause of the Federal Constitution. The case arose upon the application of the taxpayer to the state court of first instance for correction of the assessment and exoneration from the tax. Judgment for the taxpayer was affirmed by the Supreme Court of Appeals on a writ of error sued out by the State. Mr. Henry R. Miller, Jr., with whom Mr. Abram P. Staples, Attorney General of Virginia, and Mr. W. W. 16 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. Martin, Assistant Attorney General, were on the brief, for petitioner. Messrs. James R. Caskie and F. P. Christian, Jr., for respondent. Mr. Chief Justice Hughes delivered the opinion of the Court. The Imperial Coal Sales Company, a corporation organized under the laws of Virginia, sought exoneration from taxes assessed on its capital and income by the Department of Taxation of that State. The taxes were assailed under the commerce clause and the Fourteenth Amendment of the Constitution of the United States. The judgment of the trial court, holding the taxes to be invalid, was affirmed by the Supreme Court of Appeals. 161 Va. 718, 736; 167 S. E. 268, 172 S. E. 927. This Court granted certiorari. 292 U. S. 619. The tax on income was held to be invalid upon the non-federal ground that it was unauthorized by the state law. But in dealing with the capital tax, the state court concluded that it was “ unnecessary to pass upon the construction of Section 73 of the Tax Code under which the assessment was made.” While observing “ a strong leaning and intent on the part of the lawmakers to exclude such corporations as the sales company from state tax action,” the Court did not put its decision upon a non-federal ground but based it explicitly upon the ground that the tax was invalid under the Federal Constitution. The Court said—“We prefer to rest the decision of the validity of the capital tax here considered upon the broad proposition that it is invalid because it is a burden upon interstate commerce and forbidden by the Constitution of the United States.” As the decision was thus expressly rested, not upon the inapplicability of the state law, but upon a determination of the federal 15 VIRGINIA v. IMPERIAL COAL CO. Opinion of the Court. 17 question, by which the bar of the Federal Constitution was erected against the levy of the tax, this Court has jurisdiction. 28 U. S. C. 344 (b); Henderson Bridge Co. v. Henderson City, 173 U. S. 592, 608, 609; Rogers v. Hennepin County, 240 U. S. 184, 188, 189; Grayson n. Harris, 267 U. S. 352, 358. The material facts, as set forth by the state court, are as follows: Respondent, having its principal office in Lynchburg, Virginia, and maintaining a branch office in Cincinnati, Ohio, conducts a sale agency. Its sole business is that of selling coal for foreign coal mining corporations. It directs and manages the shipment and transportation of the coal, collects the proceeds of sale, and is paid a commission of eight per cent. Respondent does not own or lease coal mines and is not engaged in the business of mining. No coal of any consequence is sold in Virginia and none of the coal is located in Virginia at the time of sale. Nor does respondent own or operate warehouses or coal storage yards in Virginia. It does not retail, buy or own, coal but sells coal for its foreign principals in carload lots f. o. b. mines for a continuous journey between points outside of Virginia. When coal is sold through the Cincinnati office contracts are forwarded to the Lynchburg office for approval, and orders are sent to the mines for shipment. The record of sales and an account with the mines from which the coal is shipped are kept in the office at Lynchburg. Purchasers agree to pay monthly. Respondent collects the money and deposits it in bank in Lynchburg, and from these proceeds the mines are paid for the coal, less respondent’s commissions. The state court held that while respondent was doing business in Virginia, that business “ arises out of, is inseparable from and incidental only to, the principal business of selling coal in interstate commerce.” The Court said that a corporation engaged in interstate commerce 89995°—-35-----2 18 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. “may be taxed by a state on (1) its real estate and tangible personal property situated in the taxing state, and (2) upon its intangible personal property if in the taxing state it does intrastate business or has any appreciable real or tangible property. But if it has no real or tangible property and does no intrastate business in the taxing state, it cannot be taxed by that state.” 1. The tax in question, styled a “ capital tax,” is an ad valorem property tax. It is a state tax of “ seventy-five cents on every one hundred dollars of the actual value ” of the capital of any trade or business except that otherwise specifically taxed or exempted from taxation. Section 73, Tax Code of Virginia. By 1 capital ’ is meant the property described. The property which is subject to the tax consists of (1) the inventory of stock on hand, (2) the excess of all bills and accounts receivable over bills and accounts payable, (3) all money on hand and on deposit, and (4) all other taxable personal property of any kind whatever, including all choses in action, equities, demands and claims, but excluding certain property specifically mentioned in the statute. Real estate used in trade or business is not held to be capital under the statute but is to be listed and taxed as other real estate; and tangible personal property used in trades and businesses mentioned in the statute is to be listed exclusively for local taxation. In the instant case, no property was assessed under the first and fourth categories of the statute, for respondent had none. The assessment, as the state court found, was based “ on the money on hand, plus the excess of the bills and accounts receivable over the bills and accounts payable.” The state court treated the tax as a property tax, saying that “ it must be borne in mind that the tax sought to be imposed is one upon property which is entirely intangible and which is used wholly and exclusively in interstate commerce.” VIRGINIA v. IMPERIAL COAL CO. 19 15 Opinion of the Court. 2. Respondent’s ownership of the property assessed is not disputed. No question is presented on this point merely because of the conduct of its business as a sales agency. The ownership of the property was the subject of a stipulation in the trial court, and it was agreed “ that the property constituting the basis of the assessment on capital was, on the dates in question, the property of the sales company.” 3. The money on hand, and the bills and accounts receivable, the excess of which over bills and accounts payable was assessed, had their situs in Virginia. Respondent is a domestic corporation with its principal office in that State where the proceeds of its accounts receivable are collected and deposited in bank. Such credits and accounts are regarded as situated at the domicile of the creditor and that domicile establishes a basis for taxation. Kirtland v. Hotchkiss, 100 U. S. 491, 498; Fidelity & Columbia Trust Co. v. Louisville, 245 U. S. 54, 58; Maguire v. Trejry, 253 U. S. 12, 16; Blodgett v. Silberman, 277 U. S. 1, 15; Baldwin v. Missouri, 281 U. S. 586, 591, 592; Beidler v. Tax Commission, 282 U. S. 1, 8; Lawrence v. Tax Commission, 286 U. S. 276, 279, 280. 4. Property having its situs within the taxing State is not exempt from a non-discriminatory property tax merely because the property is used in interstate commerce. Corporations engaged in interstate commerce should bear their proper share of the burdens of the government under whose protection they conduct their operations, and non-discriminatory taxation of their property although used in interstate commerce, as this Court has frequently said, affects that commerce only incidentally and is not inconsistent with the constitutional immunity from the imposition of direct burdens. Postal Telegraph Cable Co. v. Adams, 155 U. S. 688, 696; Adams Express Co. v. Ohio, 165 U. S. 194, 220; Atlantic & Pacific Telegraph Co. v. Philadelphia, 190 U. S. 160, 163; United 20 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. States Express Co. v. Minnesota, 223 U. S. 335, 344; Cudahy Packing Co. v. Minnesota, 246 U. S. 450, 453; Wells, Fargo & Co. v. Nevada, 248 U. S. 165, 166, 167; Eastern Air Transport n. Tax Commission, 285 U. S. 147, 152. Such taxation may embrace intangible as well as tangible property. Adams Express Co. n. Ohio, 166 U. S. 185, 218, 219; Cudahy Packing Co. v. Minnesota, supra; Wells, Fargo & Co. v. Nevada, supra. It is not the character of the property that makes it subject to such a tax, but the fact that the property has its situs within the State and that the owner should give appropriate support to the government that protects it. That duty is not less when the property is intangible than when it is tangible. Nor are we able to perceive any sound reason for holding that the owner must have real estate or tangible property within the State in order to subject its intangible property within the State to taxation. We are dealing, as we have said, with an ad valorem property tax, and not with a privilege tax. Respondent is not taxed upon the privilege of engaging in interstate commerce, and decisions, cited by the state court, holding such taxes to be invalid are not apposite. Thus, in Ozark Pipe Line Corp. v. Monier, 266 U. S. 555, the tax was held to be bad as one imposed " upon the privilege or right to do business ” of a corporation engaged only in interstate commerce. Id., p. 562. The same principle of protection was applied in Alpha Portland Cement Co. n. Massachusetts, 268 U. S. 203, 216. Compare Anglo-Chilean Corp. v. Alabama, 288 U. S. 218. Decisions holding invalid license fees or excise taxes measured in such a manner as to burden interstate commerce and to attempt to exert the taxing authority with respect to business and property beyond the jurisdiction of the State, are also inapplicable. Cf. Air-Way Electric Corp. v. Day, 266 U. S. 71, 83. Nor are we here concerned DETROIT TRUST CO. v. THE BARLUM. 21 15 Syllabus. with the question which has been discussed in cases dealing with the effect of the taxation of gross receipts derived from interstate commerce? Without going into that question, it is sufficient again to point out that the tax is not laid upon gross receipts but upon the “ excess of all bills and accounts receivable over bills and accounts payable.” The effect upon interstate commerce, as in other instances of non-discriminatory property taxation, is at most, indirect and incidental. See United States Glue Co. v. Oak Creek, 247 U. S. 321, 329; Shaffer v. Carter, 252 U. S. 37, 57. The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. Reversed. DETROIT TRUST CO., TRUSTEE, v. THE THOMAS BARLUM et al.* * CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 13. Argued October 12, 1934.—Decided November 5, 1934. 1. A court of admiralty has no jurisdiction of a suit to foreclose a mortgage on a ship, in the absence of an Act of Congress conferring such jurisdiction. P. 32. 2. “ Preferred mortgages ” of ships under the Ship Mortgage Act of 1920 include deeds of trust securing bonds sold to the public and under that statute are foreclosable exclusively in admiralty, with priority of lien as therein prescribed, if indorsement upon ship’s documents, recording, and other conditions expressed in the statute have been fulfilled. P. 32. 1 See Fargo v. Michigan, 121 U. S. 230; Philadelphia & Southern Steamship Co. v. Pennsylvania, 122 U. S. 326; Galveston, H. & S. A. Ry. Co. v. Texas, 210 U. S. 217; Crew Levick Co. v. Pennsylvania, 245 U. S. 292, 295; Cudahy Packing Co. v. Minnesota, 246 U. S. 450, 453; New Jersey Telephone Co. v. Tax Board, 280 U. S. 338, 349. * Together with No. 14, Detroit Trust Co., Trustee, v. The John J. Barium et al., certiorari to the Circuit Court of Appeals for the Second Circuit. 22 OCTOBER TERM, 1934. Argument for Petitioner. 293 U. S. 3. The status of “ preferred mortgages ” does not depend upon application of the borrowed money to maritime uses. This condition is not expressed in the Act and can not be implied. P. 37. So held in view of the minute and explicit provisions of the Act; its legislative history, showing that the objective was to foster our merchant marine by making ship mortgages, including deeds of trust securing bonds, safe and attractive to investors; and the importance to this purpose of having the jurisdiction to foreclose— in admiralty exclusively or in state courts exclusively—determinable by precise statutory conditions rather than by extrinsic criteria raising a host of questions as to the application of the proceeds of loans. 4. Congress, under Art. Ill, § 2, and Art. I, § 8, par. 18 of the Constitution, has paramount power to determine the maritime law which shall prevail throughout the country; but in so doing it is necessarily restricted to the sphere of the admiralty and maritime jurisdiction, the boundaries of which are determined by the exercise of the judicial power. P. 42. 5. In order to promote investment in shipping securities and thus to advance the maritime interests of the United States, Congress has power, by amendment of the maritime law, to regulate the priorities of mortgage and other liens on ships and to provide jurisdiction in admiralty for the enforcement of such mortgages. Bogart v. The John Jay, 17 How. 399, considered. P. 48. 6. There is no ground for denying this power when the proceeds of the mortgage are used for other purposes than the direct benefit ôf the vessel. P. 50. 68 F. (2d) 946, reversed. Certiorari, 292 U. S. 619, to review the reversal, for want of jurisdiction, of two decrees entered by the District Court, 56 F. (2d) 455, 2 F. Supp. 733, for the foreclosure of mortgages on two ships. Mr. Ray M. Stanley, with whom Messrs. Ellis H. Gid-ley, Ferris D. Stone, and Cleveland Thurber were on the brief, for petitioner. The Ship Mortgage Act is a logical development of the national policy expressed in the Merchant Marine Act. Sen. Rep., 66th Cong., No. 573. DETROIT TRUST CO. v. THE BARLUM. 23 21 Argument for Petitioner. Under the construction given it by the court below, in every suit in rem brought for the foreclosure of a preferred mortgage the first inquiry will necessarily be whether or not the proceeds, beyond an inconsiderable portion, were devoted to maritime uses. If not, did the mortgagee have knowledge at the time the mortgage was given that the mortgagor intended to apply a substantial part of the proceeds to non-maritime uses? If knowledge or lack of knowledge is disputed, the court must retain jurisdiction in the first instance solely for the purpose of deciding that question of fact. If advance knowledge be found, the court must order a dismissal for lack of jurisdiction. The majority opinion further leaves it to the discretion of individual judges to determine what part of the proceeds may be devoted to non-maritime uses before jurisdiction is destroyed. A mere statement demonstrates the utter fallacy of the reasoning. Jurisdiction may be defeated only by destroying the preferred status of the mortgage itself. The language of the Act shows that there was no intention to impose any implied limitations on the use of the proceeds. The purpose of the implied grant of power to legislate on the subject of admiralty and maritime jurisdiction was to place the entire subject matter, both substantive law and procedure, under federal control, because of its intimate relation to interstate and foreign commerce and to navigation, and it may be added—to ships, the sole instruments of navigation. The Lottawanna, 21 Wall. 558, 577; The Belfast, 7 Wall. 624; Waring v. Clarke, 5 How. 441; Panama R. Co. v. Johnson, 264 U. S. 375; Southern Pacific Co. v. Jensen, 244 U. S. 205, 215. The power of Congress to alter, qualify, revise or supplement the general maritime law whenever experience of changing conditions makes it desirable or necessary has 24 OCTOBER TERM, 1934. Argument for Petitioner. 293 U. S. been often declared and recently reaffirmed. Crowell v. Benson, 285 U. S. 22; United States v. Flores, 289 U. S. 137. Illustrations of the repeated exercise by Congress of its power to make substantive changes in the law maritime are found in the Judiciary Act of 1789, providing for seizure under the impost, navigation or trade laws; The Margaret, 9 Wheat. 421; in the Acts providing for limitation of liability; The Main v. Williams, 152 U. S. 122; New Jersey Steam Navigation Co. v. Merchants’ Bank, 6 How. 344; Richardson v. Harmon, 222 U. S. 96; in the Act of June 23,1910 creating an extension of maritime lien for supplies furnished in the home port; Piedmont & G. C. Coal Co. v. Seaboard Fisheries Co., 254 U. S. 1; in the Act of March 4, 1915, known as the Jones Act; Lindgren v. United States, 281 U. S. 38; in the Longshoremen’s and Harbor Workers’ Compensation Act of March 4, 1927; Crowell v. Benson, 285 U. S. 22. In the absence of action by Congress, this Court has the power to modify the maritime law as experience or changing conditions may require, e. g., The Genesee Chief, 12 How. 443. In the last analysis, the decision in the case of The Genesee Chief, supra, was merely an interpretation of the Constitution, not only in the light of changing conditions and the lessons of experience, but as well because of factors which were not considered wThen the case of The Thomas Jefferson was decided. This power of the Court to overrule prior decisions has been frequently exercised (see cases Note 2, dissenting opinion of Brandéis, J., in Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 407, 408). See Funk v. United States, 290 U. S. 371, wherein an ancient rule of the common law was abrogated—this though there is no national common law. The only apparent limitation on the power of the DETROIT TRUST CO. v. THE BARLUM. 25 21 . Argument for Respondents Court in this regard is the doctrine of stare decisis, which can have no application in the present case. What was said in Bogart v. The John Jay, 17 How. 399, did not mark the boundary for all time beyond which neither Court nor Congress may go. Cf. The Oconee, 280 Fed. 927; The Nanking, 292 Fed. 642; The Lincoln Land, 295 Fed. 358. Cases where the validity of the Ship Mortgage Act was assumed are: The Egeria, 294 Fed. 791; The Northern Star, 7 F. (2d) 505; National Bank v. Enterprise Marine Dock Co., 43 F. (2d) 547; Consumer’s Co. v. Goodrich Transit Co., 53 F. (2d) 972, cert, den., 286 U. S. 548; The Owego, 292 Fed. 403; The Northern No. J^l, 297 Fed. 343; The Moshulu, 298 Fed. 348; The Henry W. Breyer, 17 F. (2d) 423; The Red Lion, 22 F. (2d) 329. Also see Morse Drydock & Repair Co. v. The Northern Star, 271 U. S. 552, and United States v. Flores, 289 U. S. 137. The opinion in Bogart v. The John Jay, supra, shows that the Court, as then constituted, had no doubt of the power of Congress to so extend the jurisdiction, as had been done in England. See Panama R. Co. v. Johnson, 264 U. S. 375, 386. Mr. George E. Brand, with whom Mr. Thomas C. Burke vises on the brief, for respondents. Prior to the Ship Mortgage Act, it was settled law that a ship mortgage securing a personal loan to the shipowner was not, ex proprio vigore, foreclosable in admiralty—not because the Congress had not conferred such jurisdiction, but because, under the Constitution as interpreted by this Court, neither the loan, the primary contract, nor the mortgage, the incident thereof, was a maritime contract. The Congress has no power to extend original admiralty jurisdiction to a non-maritime contract. That this Court was fully conscious of the desirability of making federal admiralty jurisdiction as comprehen- 26 OCTOBER TERM, 1934. Argument for Respondents. 293 U. S. sive as the needs of navigation, is attested by New Jersey Steam Navigation Co. v. Merchants Bank of Boston, 6 How. 344, and by The Genesee Chief, 12 How. 443, holding that the admiralty jurisdiction was not limited to tide waters. Certainly this Court accorded the constitutional provisions a broad, rather than a restricted interpretation, and in view of such a tendency this Court’s refusal to uphold jurisdiction over ship mortgages, in Bogart v. The John Jay, 17 How. 399, is of great significance. To quote from that case: “ This is not so, because such a jurisdiction had been denied by the jealousy of the courts of the common law. Its foundation is, that the mere mortgage of a ship, other than that of an hypothecated bottomry, is a contract without any of the characteristics or attendants of a maritime loan, and is entered into by the parties to it, without reference to navigation or perils of the sea. Such a mortgage has nothing in it analogous to those contracts which are the subjects of admiralty jurisdiction. In such a case, the ship is the object for the accomplishment of the contract, without any reference to the use of her for such a purpose. There cannot be, then, anything maritime in it. A failure to perform such a contract cannot make it maritime.” There was no dissent from this opinion and seven of the Justices who participated in the decision of The Genesee Chief, supra, were still members of this Court. The rule has been consistently followed: Schuchardt v. The Angelique, 19 How. 239; People's Ferry Co. v. Beers, 20 How. 393; Grant Smith-Porter Co. N. Rohda, 257 U. S. 469; Thames Towboat Co. v. The Francis McDonald, 254 U. S. 242; The Lottawanna, 21 Wall. 558; The J. E. Rumbell, 148 U. S. 1; The Freights of the Kate, 63 Fed. 707. The bonds are the primary obligations to which the mortgages are mere incidents. Carpenter v. Longan, 16 Wall. 271. DETROIT TRUST CO. v. THE BARLUM. 27 21 Argument for Respondents. The loans herein were merely personal contracts, in no way involving navigation or the perils of the sea. The mortgages were mere security for performance of the personal contracts and in no way involved the use of the steamers in navigation. Maritime liens encumber commerce and are stricti juris. Krauss Bros. Lumber Co. v. Dimon S. S. Corp., 290 U. S. 117; Piedmont & George’s Creek Coal Co. v. Seaboard Fisheries Co., 254 U. S. 1; The Kalfarli, 277 Fed. 391; People’s Ferry Co. v. Beers, 20 How. 393. The fact that the contracts involved were not wholly maritime would preclude original admiralty jurisdiction. Grant v. Poilion, 20 How. 162; Piedmont & George’s Creek Coal Co. v. Seaboard Fisheries Co., 254 U. S. 1; Pillsbury Flour Mills Co. v. Interlake S. S. Co., 40 F. (2d) 439, cert, den., 282 U. S. 845; The Richard Winslow, 71 Fed. 426; The Milwaukee, 15 F. (2d) 886; El Oriente, 5 F. (2d) 251. Admiralty courts are not courts of equity. Bogart v. The John Jay, 17 How. 399; People’s Ferry Co. v. Beers, 20 How. 393; Rea v. The Eclipse, 135 U. S. 599; The Ada, 250 Fed. 194; Kellum v. Emerson, Fed. Cas. No. 7669. The attempted grant of admiralty jurisdiction, if applicable to the mortgages, would deprive the States of reserved jurisdiction over non-maritime contracts because federal admiralty jurisdiction is exclusive. No state statute creating a maritime lien, justiciable in admiralty and thereby waiving reserved state rights, is involved. Subsection K, if applicable, is unconstitutional. People’s Ferry Co. v. Beers, 20 How. 393; The Genesee Chief, 12 How. 443; New England Marine Ins. Co. v. Dunham, 11 Wah. 1. No interstate commerce is involved in the present controversy. It is significant that in Art. I, § 8 of the Constitution, defining the power of the Congress, the subject 28 OCTOBER TERM, 1934. Argument for Respondents. 293 U. S. of admiralty is not mentioned. The connection of the Congress with that subject is through Art. Ill, § 1, which permits the Congress to apportion the judicial power conferred by the States but which cannot sustain an arrogated increase of power. The Congress cannot enlarge the grant of admiralty jurisdiction. Crowell v. Benson, 285 U. S. 22; Meyer v. Tupper, 1 Black 522; The Lottawanna, 21 Wall. 558, 588. Federal admiralty jurisdiction to enforce a lien is exclusive. Subsection K of the Ship Mortgage Act expressly provides that jurisdiction thereunder shall be exclusive. If the Congress, by its fiat, can convert such a mortgage into a maritime lien, the jurisdiction of the State is automatically divested. This cannot be done without the approval of the State or amendment of the Constitution. Cf. The Winnebago, 141 Fed. 945, cert, den., 200 U. S. 616; The Moses Taylor v. Hammons, 4 Wall. 411; Che-lentis v. Luckenbach S. S. Co., 247 U. S. 372; The Belfast, 7 Wall. 624; Leon v. Galceran, 11 Wall. 185; Norton v. Switzer, 93 U. S. 355; The J. E. Rumbell, 148 U. S. 1; The Roanoke, 189 U. S. 185; American Steamboat Co. v. Chace, 16 Wall. 522; Perry v. Haines, 191 U. S. 17. The Congress may prescribe forms, mode and rules of judicial proceedings within the defined admiralty jurisdiction of the courts, but cannot make maritime a non-maritime cause or transaction. Analysis will disclose no decision upholding congressional regulation except as to a matter unquestionably maritime. The General Smith, 4 Wheat. 438; Meyer v. Tupper, 1 Black 522. In Providence & New York S. S. Co. v. Hill Mfg. Co., 109 U. S. 578, this Court said: “ The rule of limited liability prescribed by the Act of 1851 is nothing more than the old maritime rule administered in courts of admiralty in all countries except England from time immemorial; and if this were not so, the DETROIT TRUST CO. v. THE BARLUM. 29 21 Argument for Respondents. subject matter itself is one that belongs to the department of maritime law.” In that case, the underlying cause of action was unquestionably maritime. The act of Congress merely controlled the procedure relating to the enforcement of that jurisdiction and did no more than alter a rule of recoverable damages in such cases. The same is true of Richardson v. Harmon, 222 U. S. 96, on which petitioner relies, wherein the underlying cause of action was the liability of a ship which, in its navigation, damaged a bridge. Vancouver S. S. Co. v. Rice, 288 U. S. 445; Crowell v. Benson, 285 U. S. 22. Panama R. Co. v. Johnson, 264 U. S. 375, upheld the Jones Act on the theory that it did not create a maritime cause of action but merely regulated procedure. To create a lien in connection with a matter already subject to maritime jurisdiction is one thing; but to attempt thereby to create jurisdiction where none existed is another. That the existence of a lien merely has not been an accepted basis of our admiralty jurisdiction is also attested by the fact that under the civil law many liens against ships existed that were not enforceable in original proceedings in rem under our law because the underlying cause of action was, by our courts, held to be non-mari-time. The States have not voluntarily yielded their control over non-maritime mortgages; and until they do, Congress cannot force them to do so by conferring exclusive jurisdiction upon the federal courts. United States v. Flores, 289 U. S. 137, distinguished. A fair construction of the Ship Mortgage Act justified the holding that it does not apply to the particular mortgages involved. The Act should be so construed. Essential original admiralty jurisdiction cannot be conferred by consent or estoppel. 30 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. Mr. Chief Justice Hughes delivered the opinion of the Court. These are suits in admiralty to foreclose two mortgages given by the Barium Steamship Company upon the vessels “ Thomas Barium ” and “ John J. Barium,” respectively. The mortgages purported to be preferred mortgages under the Ship Mortgage Act, 1920. 41 Stat. 1000-1006 ; 46 U. S. C., c. 25, §§ 911-984. The mortgagor, appearing as claimant, contended that the admiralty was without jurisdiction. The District Court overruled that contention and, finding that all the requirements of that Act had been met, entered decrees of foreclosure and sale. 56 F. (2d) 455; 2 F. Supp. 733. In the case of the “ John J. Barium ” the decree provided for the recovery by certain seamen, intervening libelants, of amounts due for wages, as preferred maritime liens. The Circuit Court of Appeals reversed the decrees, holding that the suits should have been dismissed for the want of jurisdiction. 68 F. (2d) 946. This Court granted certiorari. 292 U. S. 619. The mortgagor at the time the mortgages were executed, was a close corporation, about four-fifths of its shares being owned by John J. Barium who was also interested in several non-maritime enterprises. The mortgage, in No. 13, on the “Thomas Barium” was executed in March, 1929, to petitioner, as trustee, to secure $200,000 of bonds which were purchased by petitioner with a definite understanding as to the application of the proceeds. Approximately $50,000 were to meet obligations secured by a prior mortgage upon the same vessel; about $100,000 were to take up loans of John J. Barium and Thomas Barium & Sons, a concern which was engaged in a non-maritime enterprise; and the remainder, about $42,000, were to provide for repairs and for refitting the vessels “ Thomas Barium ” and “ John J. Barium.” The mort- DETROIT TRUST CO. v. THE BARLUM. 31 21 Opinion of the Court. gage was executed while the “ Thomas Barium ” was laid up. The mortgage, in No. 14, on the “ John J. Barium ” was executed in December, 1927, to petitioner, as trustee, to secure an issue of $200,000 of bonds purchased by petitioner with the understanding that, of the proceeds, petitioner was to retain about $82,000 to cover principal and interest on bonds of John J. Barium secured by a mortgage on real estate, and about $10,000 to be applied on one of his notes. Most of the remaining proceeds, which were paid over to the mortgagor, was used to take up loans in connection with non-maritime enterprises, only a small part being devoted to payments relating to the operation of the vessels. In both instances, the bonds secured by the mortgages were negotiable bonds and were purchased by petitioner for sale to the general public and were largely so sold. There is no question as to the validity of the mortgages or of the bonds which they secure or as to the default in payment. The question is solely one of jurisdiction in admiralty of the foreclosure suits. Respondent contends that the mortgages “ were so devoid of connection with maritime purposes ” that the provision of the Ship Mortgage Act conferring jurisdiction in admiralty “ either does not, or cannot constitutionally, apply.” The Circuit Court of Appeals was divided in opinion. The majority of the judges, without passing on the extent of congressional authority, thought that it was sufficient to point out that the mortgagor and mortgagee knew, before the mortgages were made, that the moneys advanced “ were intended for and actually were used for non-maritime purposes,” and they concluded that the provisions of the Ship Mortgage Act did not extend to such a case. The minority view, supporting the decision of the District Court, was that the Congress intended to encourage the investment of capital in ships; that it 32 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. might well be that this object could best be promoted by allowing vessels “ to be hypothecated as readily and with the same effect as other personal property ”; that a mortgage on a ship would be “ a most undesirable security ” if purchasers of bonds so secured must at their peril ascertain how moneys advanced upon the mortgage are to be spent; and that Congress had constitutional authority to give to a valid mortgage a preferred status, and to provide for the enforcement of the lien in admiralty, by virtue of its control over ships as essentially marine instrumentalities, a control which includes the promotion of their development and the regulation of their use. Prior to the enactment of the Ship Mortgage Act, 1920, the admiralty had no jurisdiction of a suit to foreclose a mortgage on a ship. Bogart v. The Steamboat John Jay, 17 How. 399; Schuchardt N. Ship Angelique, 19 How. 239, 241; People’s Ferry Co. v. Beers, 20 How. 393, 400; The Lottawanna, 21 Wall. 558, 583; The Eclipse, 135 U. S. 599, 608; The J. E. Rumbell, 148 U. S. 1, 15.1 If jurisdiction in the admiralty of the present suits is to be maintained it must be by reason of the application and validity of the provisions of the Ship Mortgage Act. 1. The application of the statute. The grant of jurisdiction is found in subsection K (46 U. S. C. 951) which provides: “A preferred mortgage shall constitute a lien upon the mortgaged vessel in the amount of the outstanding mortgage indebtedness secured by such vessel. Upon the default of any term or condition of the mortgage, such lien may be enforced by the mortgagee by suit in rem in ad- 1 See, also, The William D. Rice, 3 Ware 134, 136; The Martha Washington, 3 Ware 245, 251; The Sailor Prince, 1 Ben. 461, 466; Morgan v. Tapscott, 5 Ben. 252; Britton v. The Venture, 21 Fed. 928; The Gordon Campbell, 131 Fed. 963, 965; The Clifton, 143 Fed. 460, 463; The Conveyor, 147 Fed. 586, 589; The Rupert City, 213 Fed. 263, 266. DETROIT TRUST CO. v. THE BARLUM. 33 21 Opinion of the Court. miralty. Original jurisdiction of all such suits is granted to the district courts of the United States exclusively.” The grant is thus one of exclusive jurisdiction to enforce the lien of a “preferred mortgage.” If the mortgage is a preferred mortgage within the definition of the Act, jurisdiction is granted ; otherwise not. “ Preferred mortgages” are carefully defined in the detailed provisions of subsection D.2 46 U. S. C. 922. The applica- 2Subsection D is as follows: “Preferred Mortgages, (a) A valid mortgage which, at the time it is made includes the whole of any vessel of the United States of 200 gross tons and upward, shall in addition have, in respect to such vessel and as of the date of the compliance with all the provisions of this subdivision, the preferred status given by the provisions of subsection M, section 953, if— “(1) The mortgage is indorsed upon the vessel’s documents in accordance with the provisions of this chapter; “(2) The mortgage is recorded as provided in subsection C, section 921, together with the time and date when the mortgage is so endorsed; “(3) An affidavit is filed with the record of such mortgage to the effect that the mortgage is made in good faith and without any design to hinder, delay, or defraud any existing or future creditor of the mortgagor or any lienor of the mortgaged vessel; “(4) The mortgage does not stipulate that the mortgagee waives the preferred status thereof; and “(5) The mortgagee is a citizen of the United States. “(b) Any mortgage which complies in respect to any vessel with the conditions enumerated in this subsection is hereafter in this chapter called a ‘ preferred mortgage ’ as to such vessel. “(c) There shall be indorsed upon the documents of a vessel covered by a preferred mortgage— “(1) The names of the mortgagor and mortgagee; “(2) The time and date the indorsement is made; “(3) The amount and date of maturity of the mortgage; and “(4) Any amount required to be indorsed by the provisions of subdivision (e) or (f) of this subsection. “(d) Such indorsement shall be made (1) by the collector of customs of the port of documentation of the mortgaged vessel, or (2) by the collector of customs of any port in which the vessel is found, if such collector is directed to make the indorsement by the 89995°—35---3 34 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. tion of this term in the subsequent provisions of the Act, including the provision as to admiralty jurisdiction, is not left to inference but is explicitly stated in subdivision (b) of subsection D as follows: “Any mortgage which complies in respect to any vessel with the conditions enumerated in this subsection is hereafter in this chapter called a ‘ preferred mortgage ’ as to such vessel.” Subdivision (a) of subsection D provides that a “ valid mortgage,” which “ includes the whole of any vessel of the United States of 200 gross tons and upward,” shall have, in addition, “ in respect to such vessel and as of the date of the compliance with all the provisions of this collector of customs of the port of documentation; and no clearance shall be issued to the vessel until such indorsement is made. The collector of customs of the port of documentation shall give such direction by wire or letter at the request of the mortgagee and upon the tender of the cost of communication of such direction. Whenever any new document is issued for the vessel, such indorsement shall be transferred to and indorsed upon the new document by the collector of customs. “(e) A mortgage which includes property other than a vessel shall not be held a preferred mortgage unless the mortgage provides for the separate discharge of such property by the payment of a specified jportion of the mortgage indebtedness. If a preferred mortgage so provides for the separate discharge, the amount of the portion of such payment shall be indorsed upon the documents of the vessel. “(f) If a preferred mortgage includes more than one vessel and provides for the separate discharge of each vessel by the payment of a portion of the mortgage indebtedness, the amount of such portion of such payment shall be indorsed upon the documents of the vessel. In case such mortgage does not provide for the separate discharge of a vessel and the vessel is to be sold upon the order of a district court of the United States in a suit in rem in admiralty, the court shall determine the portion of the mortgage indebtedness increased by 20 per centum (1) which, in the opinion of the court, the approximate value of the vessel bears to the approximate value of all the vessels covered by the mortgage, and (2) upon the payment of which the vessel shall be discharged from the mortgage.” DETROIT TRUST CO. v. THE BARLUM. 35 21 Opinion of the Court. subdivision, the preferred status given by the provisions of subsection M,” 3 46 U. S. C. 953. The term “ vessel of the United States ” means any vessel documented under the laws of the United States; and, in the case of a mortgage “ involving a trust deed and a bond issue thereunder,” the term “ mortgagee ” means the trustee. Subsection B, 46 U. S. C. 911. The “preferred status” given by subsection M is that, on foreclosure and sale in admiralty, all preexisting claims in the vessel are to be held terminated and thereafter are to attach to the proceeds of the sale, and the “ preferred mortgage lien ” is to have priority over all claims against the vessel, except “ preferred maritime liens ” and expenses, fees and costs allowed by the Court. “Preferred maritime liens” are those arising prior to the recording and indorsement of the mortgage as required, or “ a lien for damages arising out of tort, for wages of a stevedore when employed directly by the owner, operator, master, ship’s husband, or 8Subsection M is as follows: “Preferred Maritime Lien; Priorities; Other Liens, (a) When used hereinafter in this chapter, the term 'preferred maritime lien’ means (1) a lien arising prior in time to the recording and indorsement of a preferred mortgage in accordance with the provisions of this chapter; or (2) a lien for damages arising out of tort, for wages of a stevedore when employed directly by the owner, operator, master, ship’s husband, or agent of the vessel, for wages of the crew of the vessel, for general average, and for salvage, including contract salvage. “(b) Upon the sale of any mortgaged vessel by order of a district court of the United States in any suit in rem in admiralty for the enforcement of a preferred mortgage lien thereon, all preexisting claims in the vessel, including any possessory common-law lien of which a lienor is deprived under the provisions of subsection L, section 952, shall be held terminated and shall thereafter attach, in like amount and in accordance with their respective priorities, to the proceeds of the sale; except that the preferred mortgage lien shall have priority over all claims against the vessel, except (1) preferred maritime liens, and (2) expenses and fees allowed and costs taxed, by the court.” 36 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. agent of the vessel, for wages of the crew of the vessel, for general average, and for salvage, including contract salvage.” The requirements of subdivision (a) of subsection D, which must be met in order to obtain this preferred status, are that the mortgage shall be indorsed upon the vessel’s documents and shall be recorded; that an affidavit shall be filed with the record “ to the effect that the mortgage is made in good faith and without any design to hinder, delay or defraud any existing or future creditor of the mortgagor or any lienor of the mortgaged vessel ”; that the mortgage does not stipulate for a waiver of the preferred status; and that the mortgagee is a citizen of the United States. Subdivisions (c) and (d) of subsection D set forth the nature and manner of the required indorsement upon the documents of the vessel; and subsection C (46 U. S. C. 921), to which subsection D refers, contains detailed provisions as to recording. Subdivision (e) of subsection D provides that a mortgage which includes property other than a vessel “ shall not be held a preferred mortgage” unless there is provision for the separate discharge of such property by the payment of a specified portion of the mortgage indebtedness; subdivision (f) of subsection D makes provision for the case of a mortgage covering more than one vessel. And where a mortgage covers property in addition to vessels, the Act is not to be construed as authorizing a proceeding in rem in admiralty to enforce the rights of the mortgagee in respect to such property. Subsection N,4 46 U. S. C. 954. 4 Subdivision (b) of subsection N is as follows: “(b) This chapter shall not be construed, in the case of a mortgage covering, in addition to vessels, realty or personalty other than vessels, or both, to authorize the enforcement by suit in rem in admiralty of the rights of the mortgagee in respect to such realty or personalty other than vessels.” DETROIT TRUST CO. v. THE BARLUM. 37 21 Opinion of the Court. Subsection E (46 U. S. C. 923) imposes the duty upon the mortgagor to keep on board the mortgaged vessel a certified copy of the mortgage and to cause it and the vessel’s documents to be exhibited by the master to any person having business with the vessel which may give rise to a maritime lien or to a transfer or mortgage of the vessel Subsection F (46 U. S. C. 924) requires the mortgagor to disclose to the mortgagee, upon his request, the existence of any maritime lien, prior mortgage, or other obligation or liability of the vessel, that is known to the mortgagor, and prohibits the mortgagor, after the mortgage is executed and before the mortgagee has had reasonable time to record it and to have the necessary indorsements made upon the vessel’s documents, from incurring “ any contractual obligation creating a lien upon the vessel,” other than those liens which are made “preferred maritime liens” as above stated. Provision is also made for the record of notices of claims of lien on the mortgaged vessel, for certificates of discharge of liens, and for the inspection of records and obtaining copies. Subsections G and I, 46 U. S. C. 925, 927. Penalties are provided for failure to exhibit documents and for violation of the Act in other respects; and provision is also made for recovery, by suits in the district courts of the United States, against collectors of customs and mortgagors, or masters of vessels, of damages caused by failure to perform the duties imposed upon them. Subsection J, 46 U. S. C. 941. An examination of the provisions of the Act leaves no room for doubt that the subject of mortgages of vessels, and, in particular, the priority which should be assigned to them in relation to other liens, was under the close scrutiny of the Congress in determining its policy. But, among all the minute requirements of the Act, we find none as to the application of the proceeds of loans which such mortgages secure. No condition is imposed 38 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. as to the purposes for which the moneys are lent. While the Congress took care to make distinct provision for cases where a mortgage covers property other than a vessel, no distinction is made as to the status of mortgages of vessels by reason of an intention to devote the borrowed moneys to uses other than maritime. We are not at liberty to imply a condition which is opposed to the explicit terms of the statute. It is enough, so the statute says expressly, that the mortgage is upon a vessel of the United States, that it is a valid mortgage, that it is made in good faith, that it is disclosed by proper indorsements on the vessel’s documents and is duly recorded, and that the other conditions, specified in detail, are met. Such a mortgage upon a vessel documented under the laws of the United States, the Congress has undertaken to regulate with respect to priority of lien. If the conditions so laid down are fulfilled, the mortgage is to be a “preferred mortgage ” with all the incidents which the Act attaches to it, including the right to bring foreclosure in admiralty. To hold that a mortgage is not within the Act which the Act itself states is within it, is not to construe the Act but to amend it. The question of policy—whether different terms should have been imposed—is not for us. We may not add to the conditions set up by Congress any more than we can subtract from them. They stand, as defined, precise and complete. We see nothing in the general purpose of the Act which can be deemed to restrict the natural meaning and effect of its language. Rather, the general purpose emphasizes that meaning and effect. The Ship Mortgage Act is a part of the Merchant Marine Act, 1920. 41 Stat. 988. Its declared purpose is “ to provide for the promotion and maintenance of the American merchant marine.” The Congress, in its wisdom, decided upon the means to achieve that object and set forth its conclusions in the terms of the statute. The legislative DETROIT TRUST CO. v. THE BARLUM. 39 21 Opinion of the Court. history of the statute shows the controlling considerations. The report of the Senate Committee on Commerce pointed out that “ mortgage security on ships ” was “practically worthless”; that it was proposed to “ make it good except as to certain demands that should be superior to everything else, such as wages ”; and that it was desired to have “ our people and capital interested in shipping and shipping securities.” Sen. Rep. No. 573, 66th Cong., 2d sess., p. 9. The bill, with this purpose, was developed in conference. The managers on the part of the House of Representatives, in their statement accompanying the report of the Committee of Conference, observed that by the enlarged provisions of the bill “ the mortgagee under a mortgage upon a vessel of the United States is made more secure in his interest in the vessel than he is under existing admiralty law,” and, referring to the plan of “ creating a preferred mortgage,” added that “ the preferred status arises upon the recording of the mortgage as a preferred mortgage and its indorsement upon vessel’s documents.” There is no suggestion of any requirement as to the use, intended or actual, of the moneys borrowed upon the faith of the mortgage security. H. R. No. 1102, 66th Cong., 2d sess., p. 34; H. R. No. 1107, 66th Cong., 2d sess., p. 31.5 The measure was enacted in the terms thus proposed. 5 In this statement, the House managers said: “ This Senate amendment is an extensive provision by which the mortgagee under a mortgage upon a vessel of the United States is made more secure in his interest in the vessel than he is under existing admiralty law. The amendment supplements the existing mortgage recording provisions by creating a preferred mortgage which in foreclosure proceedings will have priority in the distribution of the proceeds from the sale of the mortgaged vessel over all maritime liens against the vessel except liens for damages arising out of tort, stevedores’ and crews’ wages, general average, and salvage. The preferred status arises upon the recording of the mortgage as a preferred mortgage and its indorsement upon vessel’s documents. Under the Senate amend 40 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. In placing ship mortgages upon a stronger basis as securities, the Congress had in mind, and expressly included, trust deeds securing issues of bonds to the public. Subsection B, 46 U. S. C. 911. It is plain that the fundamental purpose to promote public confidence in such securities, and their extended use as investments, would have been frustrated if purchasers of bonds had to discover at their peril the application of the proceeds of the secured loans, or if their rights depended upon such knowledge as their trustee might have, rather than upon the satisfaction of the statutory conditions and the disclosures, as required, by indorsement on the vessel’s documents and recording. But, while contemplating such bond issues, with their obvious practical incidents, the Congress did not set up a special rule for them, or for purchasers of bonds without notice as to the application of proceeds. The Congress made simple, clear and definite conditions ment the foreclosure proceedings are brought in the Federal courts in equity with simulated admiralty procedure under which the court in equity gives a title good against the world, and terminates all preexisting claims against the vessel. . . . “ The House recedes with an amendment which places the constitutional basis of Congress’s power to legislate in respect to vessel mortgages, upon the grant of admiralty jurisdiction and the ‘necessary and proper clause’ of the Constitution, instead of the power to regulate interstate and foreign commerce. The amendment as agreed to further places exclusive jurisdiction in the Federal courts to foreclose vessel mortgages upon the grant of admiralty jurisdiction instead of the provisions of the Constitution relating to diversity of citizenship and cases arising under the laws of the United States. The amendment as agreed to also makes the title granted under the order of a court of admiralty in the case of the libel of a vessel covered by a preferred mortgage good against the world as under the existing admiralty law and international admiralty practice; clarifies the provisions as to fleet mortgages; provides for the reenactment and incorporation in the amendment of the existing vessel mortgage recording provisions, and prevents the repeal of section 4 of the maritime lien act of 1910 in respect to the doctrines of advances and laches.” DETROIT TRUST CO. v. THE BARLUM. 41 21 Opinion of the Court. as to all ship mortgages otherwise valid, and when these were performed the mortgages were to have the status prescribed. Given the standing of such mortgages in admiralty, which the Congress desired to establish, an omission of a provision as to the use of the moneys borrowed cannot be regarded as anomalous. An analogous principle has been recognized in relation to bottomry and respondentia bonds. Thus, in the case of bottomry bonds, if the conditions of the bottomry attach, such bonds when given by the owner of the vessel have been held to be within the admiralty jurisdiction even if they are given to secure non-maritime outlays. That view was emphatically stated by Justice Story in The Draco, 2 Sumn. 157. There, jurisdiction of the District Court, sitting in admiralty, was challenged upon the ground that the bond in question was not a “ fit foundation for a proceeding in rem.” Id., p. 174. After a careful review of the historical conception of bottomry bonds, Justice Story concluded (id., p. 186): “ In my opinion, there is not the slightest ground to uphold the doctrine, that, in order to constitute a bottomry bond, as such, in the sense of the maritime law, it is necessary that the money should be advanced for the necessities of the ship, or for the cargo, or for the voyage. Where it is given by the master, vir-tute officii, it must, in order to have validity, be for the ship’s necessities; for the implied authority of the master extends no farther. But where it is given by the owner, as dominus navis, he may employ the money, as he pleases. It is sufficient, if the money be lent upon the bottom of the ship, at the risk of the lender, for the voyage.” So, in the case of a respondentia loan, it is not necessary that it should be made before the departure of the ship on the voyage or that the money lent should be employed in the outfit of the vessel or invested in the goods on which the risk is run. It matters not, this Court 42 OCTOBER TERM, 1934. Opinion of the £ourt. 293 U. S. has said, at what time the loan is made, or upon what goods the risk is taken. “ If the risk of the voyage be substantially and really taken,” and the transaction be otherwise valid, “ it is no objection to it, that it was made after the voyage was commenced, nor that the money was appropriated to purposes wholly unconnected with the voyage.” The lender is not presumed to lend 11 upon the faith of any particular appropriation of the money.” Conard v. Atlantic Insurance Co., 1 Pet. 386, 437. See Conard v. Nicoll, 4 Pet. 291, 310; 3 Kent’s Com., 361; note (e); The Draco, supra, pp. 188, 189. It is also to be noted that the jurisdiction granted to the admiralty by the Ship Mortgage Act is exclusive. If a mortgage is within the Act, there can be no suit to foreclose it in a state court;6 if the mortgage is not within the Act, there can be no suit for foreclosure in the admiralty. It cannot be doubted that the Congress recognized the importance of basing the jurisdiction, as thus sought to be conferred, upon precise statutory conditions. We find no warrant for leaving it to be tested by extrinsic criteria, raising a host of questions as to the application of the proceeds of loans, in the solution of which the statute affords no aid. We conclude that the Court had jurisdiction of the suits provided the Congress had authority to grant it. 2. The validity of the grant of jurisdiction. The Congress rested its authority upon the constitutional provisions extending the judicial power “ to all cases of admiralty and maritime jurisdiction ” and conferring upon the Congress the power to make all laws which shall be “ necessary and proper ” for carrying into execution all powers “ vested by this Constitution in the government of the United States, or in any department or officer thereof.” Art. Ill, § 2; Art. I, § 8, par. 18.7 This author- 6 See Note 5. 7 See Note 5. DETROIT TRUST CO. v. THE BARLUM. 43 21 Opinion of the Court. ity was not confined to the cases of admiralty and maritime jurisdiction in England when the Constitution was adopted. Waring v. Clarke, 5 How. 441, 457, 458. The limitations which had been imposed upon the high court of admiralty in the course of its controversy with the courts of common law were not read into the grant. But the grant presupposed a “general system of maritime law ” which was familiar to the lawyers and statesmen of the country, and contemplated a body of law with uniform operation. The Lottawanna, 21 Wall. 558, 574, 575. The Constitution did not undertake to define the precise limits of that body of law or to lay down a criterion for drawing the boundary between maritime law and local law. Id. Boundaries were to be determined in the exercise of the judicial power in recognition of the purpose of the grant. “ No state law can enlarge it, nor can an act of Congress or rule of court make it broader than the judicial power may determine to be its true limits.” The St. Lawrence, 1 Black 522, 527. The framers of the Constitution did not contemplate that the maritime law should remain unalterable. The purpose was to place the entire subject, including its substantive as well as its procedural features, under national control. From the beginning the grant was regarded as implicitly investing legislative power for that purpose in the United States. When the Constitution was adopted, the existing maritime law became the law of the United States “ subject to power in Congress to modify or supplement it as experience or changing conditions might require.” Panama Railroad Co. v. Johnson, 264 U. S. 375, 385-387. The Congress thus has paramount power to determine the maritime law which shall prevail throughout the country. The Lottawanna, supra, p. 577; Butler v. Boston & Savannah S. S. Co., 130 U. S. 527, 557; In re Garnett, 141 U. S. 1, 13; Southern Pacific Co. v. Jensen, 244 U. S. 205, 44 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. 215; Crowell v. Benson, 285 U. S. 22, 39; United States v. Flores, 289 U. S. 137, 148, 149. But in amending and revising the maritime law, the Congress necessarily acts within a sphere restricted by the concept of the admiralty and maritime jurisdiction. The Belfast, 7 Wall. 624, 641; Panama Railroad Co. v. Johnson, supra; Crowell v. Benson, supra, p. 55. The Congress began the exertion, of this authority at an early date. In the Judiciary Act of 1789, the Congress conferred upon the district courts of the United States exclusive jurisdiction of all seizures under the laws of impost, navigation, or trade of the United States, where the seizures were made on navigable waters within the respective districts. § 9,1 Stat. 76, 77. Waring v. Clarke, supra, p. 458; The Margaret, 9 Wheat. 421, 427. By the Act of June 19, 1813, 3 Stat. 2, the Congress declared that a vessel employed in a fishing voyage should be answerable for the fishermen’s share of the fish caught, upon a contract made on land, in the same form and to the same effect as any other vessel is liable to be proceeded against for the wages of seamen. Waring v. Clarke, supra. Important illustrations of the exercise of congressional power are found in the Limitation of Liability Act of 1851, 9 Stat. 635, enacted for the purpose of encouraging investment in shipbuilding, by limiting the venture of shipowners to the loss of the ship itself, or her freight then pending, in cases of damage occasioned without the owner’s privity or knowledge {Norwich Co. v. Wright, 13 Wall. 104; Hartford Accident & Indemnity Co. v. Southern Pacific Co., 273 U. S. 207, 214); the extension, by the Act of June 26,1884, § 18, 23 Stat. 57, 58, of the admiralty jurisdiction to proceedings for the limitation of liability, so as to include damages by a vessel to a land structure {The Plymouth, 3 Wall. 20; Cleveland Terminal & V. R. Co. N. Steamship Co., 208 U. S. 316; Richardson v. Harmon, 222 U. S. 96,101, 106); the Act of 1910, 36 Stat. 604, DETROIT TRUST CO. v. THE BARLUM. 45 21 Opinion of the Court. providing for a maritime lien for repairs or supplies furnished to a vessel in her home port, to be enforced by a proceeding in rem (The General Smith, 4 Wheat. 438, 443; The St. Jago de Cuba, 9 Wheat. 409, 420; The J. E. Rumbell, 148 U. S. 1, 12; Piedmont & G. C. Coal Co. v. Seaboard Fisheries Co., 254 U.S. 1,11); the Act of March 30, 1920, 41 Stat. 537, providing for jurisdiction in admiralty of suits for damages from death caused by wrongful act and occurring on the high seas (The Hamilton, 207 U. S. 398; Western Fuel Co. v. Garcia, 257 U. S. 233, 243; Lindgren v. United States, 281 U. S. 38, 48); the Seamen’s Act of 1915, § 20, 38 Stat. 1185 (Chelentis v. Luckenbach Steamship Co., 247 U. S. 372, 384); the Merchant Marine Act of 1920, 41 Stat. 1007, amending § 20 of the Act of 1915, thus bringing, in relation to seamen, into the maritime law, rules drawn from the Federal Employers’ Liability Act (Panama Railroad Co. v. Johnson, supra; Engel n. Davenport, 271 U. S. 33, 35; Panama Railroad Co. v. Vasquez, 271 U. S. 557, 559; Northern Coal Co. v. Strand, 278 U. S. 142, 147); and the Longshoremen’s and Harbor Workers’ Compensation Act of 1927, 44 Stat. 1424 (Nogueira v. N. Y., N. H. & H. R. Co., 281 U. S. 128; Crowell v. Benson, supra). Of special significance, in relation to the present question, are the Acts of 1884 and 1910, supra. By the former, the admiralty jurisdiction in limitation proceedings was enlarged so as to embrace the liability for a non-maritime tort. Although the damaged structure was on land, the injury was due to the operation of the vessel, and it could not be said that the Congress had stepped beyond the limits of its authority to amend the law in furthering its policy to encourage investments in ships. Richardson v. Harmon, supra. Compare The Blackheath, 195 U. S. 361, 367, 368. The Act of 1910 created a lien to be enforced in rem for repairs or supplies to vessels in their home ports. The state of the law as it existed be 46 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. fore that enactment was fully described in The J. E. Rumbell, supra. For repairs or supplies furnished to a vessel in a foreign port, a lien was given by the general maritime law and could be enforced in admiralty, but for repairs or supplies in the home port, no lien existed, or could be enforced in admiralty under the general law, independently of local statute. When the statute of a State gave a lien to be enforced by process in rem against the vessel for repairs or supplies in her home port, that lien, being similar to the lien arising in a foreign port under the general law, was deemed to be in the nature of a maritime lien and therefore could be enforced in admiralty, and, in such case the enforcement of the lien was within the exclusive jurisdiction of the courts of the United States sitting in admiralty. The result was that where necessaries were furnished to a vessel in her home port, the vessel could not be sued in the federal courts under the general maritime law, for that law was not deemed to confer a lien, and could not be sued in a state court, for that court could not enforce the lien created by the state law, but the lien so given might be enforced in admiralty.8 The Act of 1910 abolished the artificial distinction between repairs and supplies in a home port and those in a foreign port. While it created a lien where in the absence of local provision therefor, none had theretofore existed, the change was not deemed to be inconsistent with the general principles of the maritime law and it effected a substitution of a single federal statute for the conflicting state statutes. Piedmont & G. C. Coal Co. v. Seaboard Fisheries Co., supra. The Act of 1910 also provided that it should not be necessary “ to allege or prove ” that credit was given to the vessel; previously, supplies furnished to the vessel at the home port, or on the owner’s order, were presumed to be furnished upon his personal credit and created no lien. Id. 8 See Benedict’s Admiralty, 5th ed., §§ 87, 88. DETROIT TRUST CO. v. THE BARLUM. 47 21 Opinion of the Court. Respondent, in attacking the grant of jurisdiction by the Ship Mortgage Act, relies strongly upon the reasoning of the Court in Bogart n. The Steamboat John Jay, supra, which denied, under the former law, jurisdiction in admiralty to enforce payment of a mortgage upon a vessel. The Court there said that neither in England9 nor in the United States had the admiralty courts exercised jurisdiction in questions of property between a mortgagee and the owner; that the foundation of the rule was “ that the mere mortgage of a ship, other than that of an hypothecated bottomry,” was a contract “ without any of the characteristics or attendants of a maritime loan ” and was made “ without reference to navigation or perils of the sea ”; that it was a security “ to make the performance of the mortgagor’s undertaking more certain ”; that, while the mortgagor continued in possession of the ship, the mortgagee was disconnected “ from all agency and interest in the employment and navigation of her, and from all responsibility for contracts made on her account ”; that there was nothing maritime in the contract; and that from the organization of courts of admiralty and their modes of proceeding they cannot secure to the parties to the mortgage “ the remedies and protection which they have in a court of chancery.” But it did not follow, because this view was taken of the existing law, that the Congress was without power to amend the law so as to enable the admiralty courts to take cognizance of mortgages on ships, and to regulate priorities of liens, in order to promote investment in shipping securities and thus to advance the maritime interests of the United States. Indeed, in the Bogart case the Court seemed to recognize the existence of that constitutional authority. For the Court, in concluding its opinion, observed that the policy of commerce and its exigencies in England had given to its admiralty courts 9 See The Neptune, 3 Hagg. 129 (132). 48 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. a more ample jurisdiction in respect to mortgages of ships than they had under the former rule. And the Court pointed out that this “ enlarged cognizance of mortgages ” had been given by statute 3 and 4 Victoria, chap. 65, and said that “ until this shall be done in the United States by congress, the rule, in this particular, must continue in the admiralty courts of the United States as it has been.” The significance of this suggestion cannot be overlooked. The fact that mortgages on ships had not been considered to be maritime contracts was not conclusive as to the constitutional authority of the Congress to alter or supplement the maritime law in this respect, and thus to extend the admiralty jurisdiction, “ as experience or changing conditions might require,” while keeping within a proper conception of maritime concerns. The ship, documented under the laws of the United States, is the instrumentality of our maritime enterprise, the prime object of our maritime policy. The ship “ from the moment her keel touches the water ” becomes “ a subject of admiralty jurisdiction”; she acquires personality; she becomes competent to contract, is individually liable for her obligations, and is responsible for her torts. Tucker v. Alexandroff, 183 U. S. 424, 438. The existence of the ship, the investments which make that existence possible, is the necessary postulate of maritime liens. We cannot fail to regard the encouragement of investments “ in shipping and shipping securities ”—the objective of the Ship Mortgage Act—as an essential prerogative of the Congress in the exercise of its wide discretion as to the appropriate development of the maritime law of the country. The regulation of the priorities of ship mortgages in relation to other liens, and the conferring of jurisdiction in admiralty in order to enforce this regulation, are appropriate means to that legitimate end. DETROIT TRUST CO. v. THE BARLUM. 49 21 Opinion of the Court. The enlargement of the cognizance of mortgages of ships, in the admiralty courts in England, nearly one hundred years ago, to which the Court referred in the Bogart case, was to remedy an evil which had been found to exist. The purpose was “ to enable the Court to exercise its ordinary jurisdiction to the full extent.” 10 11 That Act applied whenever the ship was “ under arrest by process issuing from the high court of admiralty ” or the proceeds of a ship so arrested had been brought into the registry of the court, and the court was invested with “ full jurisdiction to take cognizance of all claims and causes of action of any person in respect to any mortgage of such ship or vessel, and to decide any suit instituted by any such person in respect of any such claims or causes of action respectively.” 3 & 4 Viet., c. 65, §§3,4. These provisions were expanded by later legislation. The admiralty court in England has jurisdiction in respect of any mortgage duly registered according to the provisions of the Merchant Marine Act, 1894, “ whether or not the ship or proceeds are under the arrest of the Court, and such jurisdiction may be exercised by an action in rem or in personam.” Roscoe’s Admiralty Practice, 5th ed., p. 51. This response “ to the exigencies of commerce ” has had its counterpart in the legislation of other European States. It may be said that the “ general maritime law ” takes cognizance of mortgages of ships, provides for their registration, and establishes rules with respect to priorities.11 10 See statement of Dr. Lushington in The Fortitude, 2 Wm. Rob. 217, 222. 11 See, e. g., The Netherlands, Maritime Law, Code of Commerce, 1838; France, Act of July 10, 1885, and Decree of June 18, 1886; Belgium, Laws of August 21, 1879, June 12, 1902, February 10, 1908, and September 4, 1908; Denmark, Maritime Law of April 1, 1892, Act 103 of April 29, 1913, also Act 57 of April 1, 1892; Italy, Maritime Law, Code of Commerce of 1883, and Mercantile Marine Code, 89995°—35---4 50 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. Prior to the Ship Mortgage Act the right of the mortgagee to intervene as a claimant of proceeds of a vessel sold by process in the admiralty was recognized and was frequently exercised. Schuchardt v. Ship Angelique, supra; The Lottawanna, supra; The J. E. Rumbell, supra. The distinction between such an intervention and an original proceeding by the mortgagee was no doubt controlling as a matter of jurisdiction and procedure under the law as it then existed, but it cannot be considered as establishing a criterion of the constitutional power of the Congress in defining jurisdiction and procedure. The Congress undoubtedly could determine the priorities that should be recognized by the admiralty court and, having that authority, the Congress could-fix the conditions upon which mortgages of ships documented under the laws of the United States should have the priority specified. The grant of jurisdiction in admiralty to entertain a suit by the mortgagee, where the mortgage complies with the prescribed conditions, in order to enforce the permitted lien against the vessel, is, after all, but a provision of suitable machinery to give effect to the rights which the Congress has created. If it be concluded, and we think it must be, that the Congress has this power in the case of the mortgage of a vessel to provide for its acquisition, or for the discharge of preexisting liens, or for its necessities, that is, to authorize the.enforcement by suits in admiralty of mortgages given to secure loans for the direct benefit of the vessel, we perceive no ground to deny to the Congress constitutional power to make similar provision as to mort- 1866, as amended; Norway, Maritime Law of July 20, 1893, as amended by Acts of May 4, 1901, July 13, 1917, and July 9, 1920. See, Constant, “ The Law Relating to the Mortgage of Ships,” Appendix A; “ The Progress of Continental Law in the 19th Century,” Georges Ripert, Maritime Law, Continental Legal History Series, p. 399. DETROIT TRUST CO. v. THE BARLUM. 51 21 Opinion of the Court. gages of ships, which comply with its rules, although the proceeds of the loans thereby secured are used for other purposes. The analogy of the decision by Justice Story in The Draco case, supra, as to bottomry bonds, and of the decision of this Court in the Conard case, supra, as to respondentia bonds, is apparent. If the maritime law does not require, as Justice Story held, that a bottomry bond, as such, must be given for the necessities of the ship or for the cargo or for the voyage, but that it is sufficient, when given by the owner, that the money be lent upon the bottom of the ship, at the risk of the lender, for the voyage, and that in such case the owner is free to employ the money as he pleases; if, as this Court decided, in the case of a respondentia loan, it is no objection that it is made after the departure of the ship, or that the money lent was not employed in the outfit of the vessel, or invested in the goods on which the risk was run, or that the money was appropriated for purposes wholly unconnected with the voyage, we cannot see that an analogous provision with respect to ship mortgages is so far inconsistent with the fundamental principles of maritime law as to place such mortgages beyond the authority of the Congress in determining the admiralty jurisdiction. The contention to the contrary loses sight of the dominant purpose of the Act, a purpose which the Congress was competent to achieve. That purpose, we repeat, was to establish the worth of “ shipping securities,” in the interest of the merchant marine. In order to create public confidence in such securities, in obligations issued on the faith of ship mortgages, the Congress deemed it necessary, not to hamper their issue or enforcement by compelling inquiries as to the application of loans, but to give a definite and assured character to such mortgages provided they met certain simple conditions. The Congress in the exercise of its discretion was entitled to consider the methods by which securities are issued to the public and 52 OCTOBER TERM, 1934. Syllabus. 293 U. S. dealt in, and the well-known usages of business in this regard amply support its judgment. The authority of the Congress to enact legislation of this nature was not limited by previous decisions as to the extent of the admiralty jurisdiction. We have had abundant reason to realize that our experience and new conditions give rise to new conceptions of maritime concerns. These may require that former criteria of jurisdiction be abandoned, as, for example, they were abandoned in discarding the doctrine that the admiralty jurisdiction was limited to tidewaters. The Genesee Chief, 12 How. 443, overruling The Thomas Jefferson, 10 Wheat. 428. The constitutional validity of the grant of jurisdiction by the Ship Mortgage Act has been sustained in The Oconee, 280 Fed. 927, in The Nanking, 290 Fed. 769, and in The Lincoln Land, 295 Fed. 358.12 We find no reason for reaching a contrary conclusion in the instant cases. The decrees of the Circuit Court of Appeals are reversed and the causes are remanded for further proceedings in conformity with this opinion. Reversed. LYNCH et al. v. NEW YORK ex rel. PIERSON. CERTIORARI TO THE SUPREME COURT OF NEW YORK. No. 1. Argued October 9, 1934.—Decided November 5, 1934. 1. Jurisdiction to review a judgment of a state court can not be founded upon surmise or be sustained by reference to briefs and 12 The validity of the Act was not questioned in Morse Dry dock & Repair Co. v. The Northern Star, 271 U. S. 552, 555, 556 and its validity has been assumed in several decisions in the lower federal courts. See The Egeria (C. C. A. 9th), 294 Fed. 791; The Northern No. 41 (8. D. Fla.), 297 Fed. 343; The Red Lion (E. D. N. Y.), 22 F. (2d) 329; National Bank v. Enterprise Marine Dock Co. (C. C. A. 4th), 43 F. (2d) 547; Consumers Co. v. Goodrich Transit Co. (C. C. A. 7th), 53 F. (2d) 972. LYNCH v. NEW YORK. 53 52 Opinion of the Court. extrinsic statements. It must appear affirmatively from the record that a federal question was necessarily decided in determining the cause; and if it be uncertain whether the judgment was based upon a federal ground, or upon a non-federal ground sufficient to sustain it, this Court will not take jurisdiction. P. 54. 2. Where the highest court of a State affirms without opinion, and leaves in doubt what, if any, disposition it made of a federal question presented below, it is suggested that, the local practice permitting, application should be made for amendment of the remittitur. P. 55. Dismissed. Certiorari, 292 U. S. 616, to review a judgment (263 N. Y. 533; 189 N. E. 684) affirming, without opinion, a judgment of the Appellate Division (237 App. Div. 763; 263 N. Y. S. 259) annulling a tax assessment. Mr. Joseph M. Mesnig, Assistant Attorney General of New York, with whom Mr. John J. Bennett, Jr., Attorney General, and Mr. Henry Epstein, Solicitor General, were on the brief, for petitioners. Mr. Clifton P. Williamson, with whom Mr. L. A. Doherty was on the brief, for respondent. By leave of Court, Mr. Seth T. Cole filed a brief on behalf of the Commissioner of Corporations and Taxation of Massachusetts, as amicus curiae. Mr. Chief Justice Hughes delivered the opinion of the Court. The State Tax Commission determined that rental received by the relator, a resident of the State of New York, from real property situated in the State of Ohio, should be included as a part of relator’s income for the purpose of computing her income tax under the Tax Law of New York. The relator sought review by the Supreme Court of New York, invoking rights under the Constitution and laws of the State of New York and under the Fourteenth 54 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. Amendment of the Constitution of the United States. The Appellate Division of the Supreme Court, Third Department, annulled the determination of the State Tax Commission. 237 App. Div. 763; 263 N. Y. S. 259. That court, while citing decisions of this Court under the Fourteenth Amendment, did not state that its decision rested upon the application of the Constitution of the United States. The Court of Appeals of the State affirmed the order of the Appellate Division, but without opinion, 263 N. Y. 533; 189 N. E. 684, and the grounds of its decision are left to conjecture. It may be surmised, from the quotations in its opinion, that the Appellate Division intended to rest its decision upon a determination of the application of the Fourteenth Amendment, and that the affirmance by the Court of Appeals went upon the same ground, and not upon the non-federal ground of the application of the Constitution and laws of the State. But jurisdiction cannot be founded upon surmise. Nor can claim of jurisdiction be sustained by reference to briefs and statements which are not part of the record. It is essential to the jurisdiction of this Court in reviewing a decision of a court of a State that it must appear affirmatively from the record, not only that a federal question was presented for decision to the highest court of the State having jurisdiction but that its decision of the federal question was necessary to the determination of the cause, and that it was actually decided or that the judgment as rendered could not have been given without deciding it. De Saussure v. Gaillard, 127 U. S. 216, 234; Johnson v. Risk, 137 U. S. 300, 306, 307; Wood Mowing & Reaping Machine Co. v. Skinner, 139 U. S. 293, 295, 297; Eustis n. Bolles, 150 U. S. 361, 366, 367; Whitney v. California, 274 U. S. 357, 360, 361; Mellon v. O’Neil, 215 U. S. 212, 214. Where the judgment of the state court rests on two grounds, one involving a federal question and the other not, or if it does not appear upon which of PFLUEGER v. SHERMAN. 55 52 Syllabus. two grounds the judgment was based, and the ground independent of a federal question is sufficient in itself to sustain it, this Court will not take jurisdiction. Allen v. Arguimbau, 198 U. S. 149, 154, 155; Johnson v. Risk, supra; Wood Mowing & Reaping Machine Co. v. Skinner, supra; Consolidated Turnpike Co. v. Norfolk & Ocean View Ry. Co., 228 U. S. 596, 599; Cuyahoga River Power Co. v. Northern Realty Co., 244 U. S. 300, 302, 304. Petitioners have made no effort to obtain an amendment by the Court of Appeals of its remittitur, and although, on the oral argument in this Court, attention was directed to the practice in New York to entertain, in proper cases, an application for such an amendment in order to show appropriately the basis of the determination of the state court, no request was made for a continuance to permit such an application. As the record fails to show jurisdiction in this Court, the writ of certiorari is dismissed as improvidently granted. Dismissed. PFLUEGER et al. v. SHERMAN et al. ON CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 21. Argued October 15, 16, 1934.—Decided November 5, 1934. 1. A certificate from the Circuit Court of Appeals must submit only questions of law, not mixed questions of law and fact, and not such as involve or imply conclusions or judgment by the Court upon the effect of facts adduced in the cause; and they must be distinct and definite. P. 57. 2. The Court can not by a certificate be called upon to answer questions of objectionable generality, or to review proceedings, facts and circumstances for the purpose of deciding a variety of preliminary questions in order to reach and decide an ultimate question submitted. Rule 37. P. 58. Dismissed. 56 OCTOBER TERM, 1934. Per Curiam. 293 U. S. Certificate from the Circuit Court of Appeals, Ninth Circuit, for advice respecting its jurisdiction over an appeal from the United States District Court for Hawaii, taken by some original plaintiffs, the others not joining. Mr. John Francis Neylan, with whom Mr. Bartley C. Crum was on the brief, for Pflueger et al. Mr. W. H. Lawrence, with whom Messrs. Alfred Sutro, Eugene M. Prince, and W. L. Stanley were on the brief, for Sherman et al. Per Curiam. After an extended recital of the allegations of the bill of complaint herein (a copy of which, consisting of seventy-three printed pages, is attached to the certificate) with the statement that it is not clear to the court whether this is a stockholders’ suit or one on behalf of the individual complainants, and after a further recital of proceedings in the cause, of the decree rendered in the District Court, and of certain documents filed in the Circuit Court of Appeals after a motion to dismiss aii appeal from that decree, the Circuit Court of Appeals has certified to this Court the following question: “ Has the United States Circuit Court of Appeals for the Ninth Judicial Circuit jurisdiction to hear and determine the questions of law and fact involved in said decree of said United States District Court for the Territory of Hawaii, from which decree said appeal was prosecuted and is now pending? “[The answer to the foregoing question will, we assume, necessarily involve the validity and effect of the above so called ‘ appearances and waivers ’ filed by certain of the complainants in this court: the question of whether or not complainants J. D. Isenberg, Mrs. Paul Isenberg, R. M. Isenberg, Julia Barckhausen Reschke, 55 PFLUEGER v. SHERMAN. Per Curiam. 57 Paula Volkmann, Clara Sielcken Schwarz, J. F. Humburg, August Humburg, B. von Damm, F. W. Klebahn, Herman P. F. Schultze, Julie Rudolphi, formerly Julie Hegeler, and Marie Feine, formerly Marie Hackfeld, whose counsel withdrew before the entry of the joint decree against them, and who have not appealed or entered their appearance in this court, are necessary parties, and whether or not the Supreme Court will look beyond the decree to determine whether the suit is a stockholders’ suit, and if it is, whether three of the stockholders of the dissolved corporation (appellants) may appeal from the decree without a summons and severance in the lower court.]” If the decree, set forth in the certificate, be deemed to be joint, and the persons above named, in the absence of summons and severance, to be necessary parties to the appeal, the Circuit Court of Appeals would be without jurisdiction. In that aspect, there would be no occasion for the submission of the question. Hartford Accident & Indemnity Co. v. Bunn, 285 U. S. 169, 178, 182; Elliot v. Lombard, 292 U. S. 139, 141, 142. The question has been certified apparently in order to obtain the decision of several underlying questions, and in the view that the various proceedings, facts and circumstances detailed in the certificate must be examined by this Court to the end that it may determine what effect shall be given to certain “ appearances and waivers ” filed in the Circuit Court of Appeals, and what effect shall be given to a statement and withdrawal of counsel for certain parties before the entry of the decree against them in the District Court, and that the Court may also determine the nature of the suit, and whether, in the light of these determinations, summons and severance of those not parties to the appeal were necessary. The certificate fails to conform to the requirement that questions submitted must be questions of law and not 58 OCTOBER TERM, 1934. Syllabus. 293 U. S. mixed questions of law and fact, and not such as involve or imply conclusions or judgment by the Court upon the effect of facts adduced in the cause, and must be distinct and definite. The Court cannot be called upon to answer questions of objectionable generality, or to review proceedings, facts and circumstances for the purpose of deciding a variety of preliminary questions in order to reach and decide an ultimate question submitted. Rule 37. Chicago, Burlington & Quincy Ry. Co. v. Williams, 205 U. S. 444, 451-453; United States v. Mayer, 235 U. S. 55, 66; Cleveland-Cliffs Iron Co. v. Arctic Iron Co., 248 U. S. 178, 179; United States v. John Barth Co., 276 U. S. 606; White v. Johnson, 282 U. S. 367, 371; Wells v. Commissioner, 286 U. S. 529. See, also, Dennistoun v. Stewart, 18 How. 565, 568; California Paving Co. v. Molitor, 113 U. S. 609, 616; Jewell v. Knight, 123 U. S. 426, 432. The certificate is Dismissed. UNITED STATES v. TROY.* APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF PENNSYLVANIA. No. 25. Argued October 16, 1934.—Decided November 5, 1934. 1. That part of par. (b) of § 146 of the Revenue Act of 1928, which provides that any person who wilfully attempts to defeat a tax shall ■ be guilty of a felony, is applicable to an officer of a corporation who made a false return on its behalf in a wilful attempt to defeat part of its tax, even though making a return for the corporation was no part of his duty. P. 61. 2. The declaration of the same section, par. (c), that the term “person,” as used in the section, shall include any officer, etc., of a cor- * No. 26. United States v. Troy. Appeal from the District Court of the United States for the Middle District of Pennsylvania. November 5, 1934. Judgment reversed, per stipulation of counsel to abide the decision in No. 25. UNITED STATES v. TROY. 59 58 Opinion of the Court. - poration who, as such, is under duty to perform the act in respect of which the violation occurs, is to be read with the other provisions of the same section and with § 701 defining “ person ” and “including.” P. 61. 6 F. Supp. 315, reversed. Appeal under the Criminal Appeals Act from a judgment quashing an indictment. Assistant Attorney General Wideman, with whom Solicitor General Biggs and Messrs. James W. Morris and John H. McEvers were on the brief, for the United States. Mr. Joseph F. Gunster, with whom Mr. A. M. Lucks was on the brief, for appellee. Mr. Justice McReynolds delivered the opinion of the Court. This cause is here under the Criminal Appeals Act, March 2, 1907, c. 2564, 34 Stat. 1246 (U. S. C., Title 18, § 682) and § 238 Jud. Code (U. S. C., Title 28, § 345). It necessitates consideration of certain provisions of the Revenue Act of 1928, c. 852, 45 Stat. 791. Section 52 of that Act commands corporations to make tax returns sworn to by designated officers. Section 146 (a) declares that any person required to make return who wilfully fails so to do shall be guilty of a misdemeanor; 146 (b) that any person who wilfully fails to collect or truthfully account for and pay over any tax, and any person who wilfully attempts to evade or defeat any tax shall be guilty of felony; and 146 (c) that “ the term ‘ person ’ as used in this section includes an officer or employee of a corporation or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs.” Section 701 provides: “ When used in this Act the term ‘ person ’ means an individual, a trust or estate, a part- 60 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. nership, or a corporation ”; also “ the terms 1 includes ’ and 1 including ’ when used in a definition contained in this Act shall not be deemed to exclude other things otherwise within the meaning of the term defined.” Applicable portions of the Act are copied in the margin.* An indictment, in the Middle District of Pennsylvania, charged appellee Troy with violating § 146 (b) in that while president of the Troy Oil Company, Incorporated, he unlawfully, wilfully and knowingly attempted to defeat and evade a large part of the tax due from that corporation for 1929, by making a return for it which * Revenue Act of 1928, c. 852, 45 Stat. 791, 808, 835, 878. Sec. 52. Corporation Returns. (a) Requirement.—Every corporation subject to taxation under this title shall make a return, stating specifically the items of its gross income and the deductions and credits allowed by this title. The return shall be sworn to by the president, vice president, or other principal officer and by the treasurer or assistant treasurer. . . . Sec. 146. Penalties. (a) Any person required under this title to pay any tax, or required by law or regulations made under authority thereof to make a return, keep any records, or supply any information, for the purposes of the computation, assessment, or collection of any tax imposed by this title, who willfully fails to pay such tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than one year, or both, together with the costs of prosecution. (b) Any person required under this title to collect, account for, and pay over any tax imposed by this title, who willfully fails to collect or truthfully account for and pay over such tax, and any person who willfully attempts, in any manner to evade or defeat any tax imposed by this title or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs of prosecution. (c) The term “ person” as used in this section includes an officer or employee of a corporation or a member or employee of a partner UNITED STATES v. TROY. 61 58 Opinion of the Court. falsely stated the gross income. The indictment was challenged because “ it fails to set forth that the defendant was under a duty to perform the act in respect of which the violation occurred and in the absence of this averment the indictment fails to set forth facts showing prima facie, a commission of the crime charged in the indictment.” The trial judge sustained the objection and quashed the indictment. In his view it was necessary that there should be allegation and proof that appellee, as president of the corporation, was under a duty to make the return. This was error; the questioned judgment must be reversed. Section 146 (a) penalizes any person required to make a return, who wilfully fails so to do; paragraph (b) any person under duty to collect, account for, and pay over any tax, who wilfully fails, also any person (without regard to duty) who wilfully attempts to defeat the tax; and paragraph (c) declares that the term person as used in the section shall include an officer under duty to perform, etc. Considering these paragraphs along with the definitions of § 701, it seems sufficiently clear Congress did not intend that paragraph (c) should exclude from paragraph (b) one who actually attempted to defeat. If the charge against appellee had been failure to make return, or pay over the tax for the corporation it might have been neces- ship, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs. Sec. 701. Definitions. (a) When used in this Act— (1) The term “person” means an individual, a trust or estate, a partnership, or a corporation. (b) The terms “ includes ” and “ including ” when used in a definition contained in this Act shall not be deemed to exclude other things otherwise within the meaning of the term defined. 62 OCTOBER TERM, 1934. Syllabus. 293 U. S. sary to allege and show some duty in respect thereto; but when charged with wilful effort to defeat the tax by presenting a false return no allegation of duty to make the return was necessary. The alleged act sufficiently indicated appellee’s criminal intent. Certainly we can find no legislative purpose to exempt from punishment one who actively endeavors to defeat a tax. And because some officers are said to be included in the term “ person,” all other individuals are not necessarily excluded. Thus construed, all parts of the statute may have effect, and the manifest purpose of Congress will not be obstructed. Reversed. GILLIS, RECEIVER, v. CALIFORNIA. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 28. Argued October 8, 9, 1934.—Decided November 5, 1934. 1. Power in the District Courts to authorize their receivers in conservation proceedings to transact local business without compliance with local statutes obligatory on all others, may be withheld by Congress. P. 65. 2. Under 28 U. S. C., § 124; Jud. Code, § 65, a receiver for a corporation producing and distributing gasoline in California was under a duty to take out a license and give a bond with surety to secure payment of taxes, pursuant to state law, and could not be absolved by order of the federal court that appointed him. P. 65. 3. There is no merit in the suggestion that observance of the state law in this case would give an unlawful preference to the State over the United States in respect of gasoline taxes. P. 66. 4. Even though it be impossible in the circumstances for the receiver to furnish the bond required by the state law, this is not an excuse for operating the business in disregard of that law and hence in violation of the Act of Congress. P. 66. 69 F. (2d) 746, affirmed. GILLIS v. CALIFORNIA. 63 62 Opinion of thé Court. Certiorari, 292 U. S. 620, to review the reversal of an order of the District Court authorizing and directing the receiver of a corporation to continue operations in the production, sale and distribution of gasoline without giving security to the State for payment of gasoline taxes. Mr. Ernest C. Carman for petitioner. Mr. H. H. Linney, Deputy Attorney General of California, with whom Mr. U. S. Webb, Attorney General, was on the brief, for respondent. Mr. Justice McReynolds delivered the opinion of the Court. California laws make it unlawful for any person to act as a distributor of motor vehicle fuel without first obtaining a license from the Board of Equalization and executing bond conditioned to pay taxes and observe other requirements. Statutes 1923, 571; Ibid. 1931, c. 85, 105; c. 86, 119; c. 793, 1652; c. 997, 2001; c. 1082, 2288. “ Distributor ” includes persons, firms and corporations refining, manufacturing or producing motor oil and distributing it within the state. Section 65, Jud. Code, (Title 28 U. S. C., § 124; Act of March 3, 1887, c. 373, § 2, 24 Stat. 554; Aug. 13, 1888, c. 866, § 3, 25 Stat. 436; Mar. 3, 1911, c. 231, § 65, 36 Stat. 1104) “ Whenever in any cause pending in any court of the United States there shall be a receiver or manager in possession of any property, such receiver or manager shall manage and operate such property according to the requirements of the valid laws of the state in which such property shall be situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof. Any receiver or manager who shall 64 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. willfully violate any provision of this section shall be fined not more than $3,000, or imprisoned not more than one year, or both.” The District Court, Southern District of California, in a cause instituted there for the purpose of conserving the assets of Western Oil and Refining Company and giving opportunity for reorganization, appointed petitioner Gillis receiver, April 4, 1931. Immediately after assuming the duties of the office, as required by local statutes, he procured license and executed bond with the Fidelity and Deposit Company of Maryland as surety. Thereafter he carried on the business of the company—manufacturing, refining, producing and distributing gasoline—and cooperated with creditors and stockholders concerning reorganization plans. In 1933 the Fidelity and Deposit Company refused to continue upon the bond after a specified day. Petitioner endeavored to find another acceptable surety. Failing in this he reported the circumstances to the court; pointed out his inability to comply with the local statutes; and stated that unless the business could continue substantially as theretofore, the purpose of the receivership would be frustrated. He asked authority to proceed without bond or license; otherwise, he affirmed, final liquidation at material loss to all concerned would be necessary. The Attorney General, speaking for the State, objected. The court ordered and directed petitioner “ to continue his operations as such Receiver (including the production, distribution and sale of gasoline or motor vehicle fuel in the State of California) after termination of the hereinbefore mentioned bond, or withdrawal therefrom of the surety thereon, for the payment of gasoline taxes . . . without any such bond or the giving of security in any other manner for the payment of such gasoline taxes and without any license . . .” GILLIS v. CALIFORNIA. 65 62 Opinion of the Court. The Circuit Court of Appeals held § 65 of Judicial Code applicable and controlling, and reversed the challenged order. The result we think is correct; the judgment must be affirmed. While the precise point now presented does not seem to have been definitely decided, the power of Congress to prescribe duties and obligations of receivers has been often recognized. United States v. Harris, 177 U. S. 305, 308; Erb v. Morasch, 177 U. S. 584, 585; Central Trust Co. v. St. Louis, A. & T. Ry. Co., 40 Fed. 426, 427; Hornsby v. Eddy, 56 Fed. 461, 462; Felton v. Ackerman, 61 Fed. 225, 227; Peirce v. Van Dusen, 78 Fed. 693, 701; Fidelity Title & Trust Co. v. Kansas Natural Gas Co., 219 Fed. 614, 616; Westinghouse Elec. & Mjg. Co. v. Binghamton Ry. Co., 255 Fed. 378, 382; Mercantile Trust Co. v. Tennessee Central R. Co., 286 Fed. 425, 428; Crawjord v. Duluth St. Ry. Co., 60 F. (2d) 212, 214. There is no suggestion of repugnance between the State Constitution and the Motor Vehicle Fuel Statute. And the latter must be accepted as valid law of the State within the ambit of § 65, Judicial Code, unless its provisions conflict with the Constitution or laws of the United States. Petitioner insists that there is such disagreement since the state statute diminishes the power of the U. S. District Court to direct its receiver to operate the business of the company. Also because, by requiring bond to secure taxes, the statute creates an unlawful preference of State over the United States in respect of collections. And finally because, in the circumstances here presented, it is impossible for the receiver to comply with the prescribed requirements; and, unless relieved from them, he “must cease receivership operations that are essential to the conservation of assets and the general purposes of the receivership.” 89995°—35--5 66 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. Manifestly the diminution, if any, of powers possessed by District Courts prior to its enactment results from § 65, Judicial Code. The ultimate inquiry is whether Congress can withhold from District Courts the power to authorize receivers in conservation proceedings to transact local business, contrary to state statutes obligatory upon all others. That Congress has such power we think is clear, and the language of § 65 leaves no doubt of its exercise. The accepted doctrine is that the lower federal courts were created by the Acts of Congress and their powers and duties depend upon the acts which called them into existence, or subsequent ones which extend or limit. Ex parte Robinson, 19 Wall. 505, 510; Bessette n. Conkey Co., 194 U. S. 324, 327. Whatever may be the inherent power of a court incident to a grant of jurisdiction—Michaelson v. United States, 266 U. S. 42, 66—there seems no ground whatever for saying that Congress cannot withhold or withdraw from courts of equity the right to empower receivers in conservation proceedings to disregard local statutes. The suggestion that to require petitioner to observe local laws would give the State inequitable priority over the United States as to taxes lacks merit. If any such result should follow it would accompany permissive action of Congress. And if the receiver cannot continue to carry on the Company’s business according to the plain direction of Congress, he must pursue some other course permitted by law. The same statute which required receivers to observe the laws of the State, gave permission to sue them in state courts under stated circumstances. It was enacted more than forty years ago and seems to have been commonly regarded as within congressional authority, 62 McCandless v. furlaud. Argument for Respondents. 67 We are not dealing here with the acknowledged power of courts to protect property in their custody. In re Tyler, 149 U. S. 164, and similar cases are not pertinent. Affirmed. McCandless, receiver, v. furlaud et al. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 11. Argued October 11, 1934.—Decided November 5, 1934. 1. An objection to the capacity of the receiver of a corporation, appointed by a federal court, to sue in a federal court in another State under an ancillary appointment made on his direct ex parte application and not as an incident to an independent bill, is an objection that might have been remedied if timely made in the court of first instance and is waived if made for the first time on appeal. P. 73. 2. The court in which the receiver sued having jurisdiction of both the subject matter and the parties, the objection to the manner of his appointment goes not to the court’s jurisdiction but to his legal capacity as plaintiff. P. 74. 3. Booth v. Clark, 17 How. 322, distinguished. P. 75. 68 F. (2d) 925, reversed. Certiorari, 292 U. S. 617, to review the reversal of a decree in a suit brought by McCandless as ancillary receiver. The review here was to be limited to the questions pertaining to the validity of the appointment of the petitioner as ancillary receiver, and his right as such to maintain this suit. Mr. Ralph Roydll for petitioner. Mr. Louis B. Eppstein, with whom Messrs. Ira Hirsh field and Louis J. Altkrug were on the brief, for respondents. The order purporting to appoint McCandless ancillary receiver was absolutely void. There was nothing before 68 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. the court upon which its judicial power could act, no complainant asserting his right against anyone. That a mere federal chancery receiver has no extraterritorial power of official action—none that exists by virtue of his appointment—none that the court appointing him has power to confer—is now the well recognized law of the land. Booth v. Clark, 17 How. 322; Hale n. Allinson, 188 U. S. 56; Great Western M. & M. Co. v. Harris, 198 U. S. 561; Sterrett V. Second Nat. Bank, 248 U. S. 73; Moore v. Mitchell, 281 U. S. 18. There being no parties before that court, there obviously could be no diversity of citizenship such as is required to confer jurisdiction upon that court. Upon the identical question, see: Mercantile Trust Co. v. Kanawha & 0. Ry. Co., 39 Fed. 337; In re Brant, 96 Fed. 257; Sullivan v. Swain, 96 Fed. 259; Fairview Fluor Spar & Lead Co. v. Ulrich, 192 Fed. 894; Greene n. Star Cash & Package Car Co., 99 Fed. 656; Platt v. Philadelphia & Reading R. Co., 54 Fed. 569. The power of a United States District Court to appoint ancillary receivers in civil cases may be exercised only in a pending suit. Mr. Justice Brandeis delivered the opinion of the Court. McCandless, a citizen and resident of Pennsylvania, suing as ancillary receiver of the Duquesne Gas Corporation, appointed by the federal court for southern New York, brought this suit in that court. The bill alleged that he had been appointed receiver of all the assets of the Corporation in a consolidated suit in the federal court for western Pennsylvania originally brought by Frank T. Harrington against the Duquesne Gas Corporation, and later consolidated with one brought by the Central Hanover Bank and Trust Company, as trustee under the Corporation’s mortgage; that upon his petition as primary McCandless v. furlaud. 69 67 Opinion of the Court. receiver filed in the federal court for southern New York he had by an order “ duly made ” been appointed ancillary receiver there; that he had “duly qualified and is now acting as such ancillary receiver”; and that the “ order duly authorized ” him as such receiver to bring this suit. The bill then set forth at great length facts on which it charged that the defendants, or some of them, acting in a fiduciary relation to the Corporation came into the possession of funds arising from the sale of its securities and had misappropriated more than $2,500,000. An accounting and the recovery of these sums were prayed for. Furlaud, a citizen and resident of New York, and three corporations organized under the laws of states other than Pennsylvania were the defendants. Each filed an answer which denied most of the allegations of the bill. The case was heard by the District Court on the merits, on evidence which occupied 217 pages of the original printed record. That court entered a final decree which ordered Furlaud and the Kingston Company to pay the sum of $1,834,640.08 with interest and costs. Those defendants appealed to the Circuit Court of Appeals, denying liability. McCandless cross-appealed, claiming the additional sum of $850,000; and that the other two companies, as to whom the bill had been dismissed by the decree, were also liable for the full amount. The Court of Appeals, without passing upon the merits of the controversy, reversed the decree. 68 F. (2d) 925. It did so, solely on the ground that, under the rule of Booth v. Clark, 17 How. 322, the “ appointment of the plaintiff as ancillary receiver was void, and he did not acquire, in any of the proceedings, a status to warrant the institution of this suit.” Its decision was based upon the following facts which were shown by the copy of the record of the proceedings in the federal court for southern New York by which McCandless was appointed an- 70 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. ciliary receiver, and which he had introduced at the hearing in this cause. The papers in the proceeding for such appointment were entitled “ Frank T. Harrington, Complainant against Duquesne Gas Corporation, Defendant ”; but in fact, no independent bill against the Corporation had been filed in the Southern District of New York by Harrington, or by any other person. The papers filed consisted merely of a petition by McCandless as primary receiver praying that he be appointed ancillary receiver; and the order entered thereon. Annexed to his petition was a copy of the proceedings of the federal court for western Pennsylvania by which he was appointed primary receiver. The record does not show that the Corporation was represented when the appointment of the ancillary receiver was made. So far as disclosed by the record, the order of the District Court for Southern New York appointing him, was made ex parte. The Court of Appeals held that the legal sufficiency of the appointment of the plaintiff as ancillary receiver had been put in issue by the answer; and that the plaintiff had not sustained the burden of establishing its legality. It ruled that in the federal courts a foreign receiver may not “ sue outside the district as a matter of comity even by obtaining permission before suit is commenced ”; that “ to permit a foreign receiver to obtain an ancillary appointment, on an ex parte application, improperly avoids the rule denying foreign receivers the right to sue in the foreign jurisdiction ”; that the “ right of a receiver to sue in a foreign court cannot be upheld as a mere incident to the office of a receiver ”; and that, since federal courts for the several districts are foreign to one another, an ancillary receiver may be appointed only as an incident of an independent bill. The importance of reviewing that ruling—in view of an established practice, said to prevail in perhaps a majority of the state courts, of permitting foreign receivers 67 McCandless v. furlaud. Opinion of the Court. 71 to sue,1 and a common practice, said to obtain in federal courts, of appointing ancillary receivers on the ex parte application of the primary receiver—was the reason principally urged for granting the petition for certiorari. The order allowing certiorari was “ limited to the questions pertaining to the validity of the appointment of the petitioner as ancillary receiver, and his right as such to maintain this suit.” In the abbreviated record prepared for use here, only those portions of the original record which were supposed to bear upon those questions were included. The rest were omitted in printing pursuant to stipulation. The briefs filed on the argument of the case in this Court were directed solely to the question whether the appointment of the ancillary receiver as made was void and open to collateral attack. But statements of counsel made at the oral argument in this Court, in answer to enquiries, and confirmed by examination of the original record, enable us to dispose of the case without passing on the specific question whether in a federal court an ancillary receiver may be appointed otherwise than as an incident of an independent bill in equity. First. The holding of the Court of Appeals that the legal sufficiency of the appointment of the plaintiff as ancillary receiver had been put in issue by the answer rests solely upon the provision in Equity Rule 30 which declares that a statement in the answer that the defendant is without knowledge as to facts alleged in the bill “ shall be treated as a denial.” 1 1 2 This constructive denial did 1 It is stated by petitioner that a foreign equity receiver is permitted to sue in 21 States; and that the highest courts of 7 other States have indicated approval of that view. 2 Paragraph Fourth of the amended bill of complainant after reciting the proceedings appointing McCandless primary receiver in the Western District of Pennsylvania, stated: “that upon petition of the complainant as such Receiver duly filed in the United States District Court in and for the Southern District of New York, an order was 72 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. not suggest that there was a legal objection to the manner of the appointment or to its validity. The proceedings at the hearing and later show that there was no intention to deny the validity of the appointment of the ancillary receiver;* 3 nor was it in fact questioned in the District Court.4 On the appeal sixty-five alleged errors were as- duly made on the 23rd day of March, 1932, by said last mentioned Court appointing said complainant, George W. McCandless, as Ancillary Receiver of Duquesne Gas Corporation, which last mentioned order duly authorized the complainant, as such Receiver, to bring this suit, and the complainant has duly qualified and is acting as such Ancillary Receiver.” Defendant answered: “ With respect to the allegation of paragraph 1 Fourth ’ of the amended bill of complaint, defendant denies having information sufficient to form a belief with respect thereto and leaves the complainant to his proof thereof.” 3 McCandless, after testifying without objection to his appointment in Pennsylvania, was asked: “ Thereafter did you apply for and obtain authority from the Court to bring this suit ? ” Defendants’ counsel objected, stating: “The ground of my objection is that the order itself is the best evidence of what is contained therein. I might say at this point that I intend to raise the point in the course of this trial that the trustee had no authority to bring the suit in the particular action under which he was appointed.” The court directed that the order be introduced. Thereupon, McCandless was asked: “ Were you thereafter appointed ancillary receiver by this District Court?” Without objection, he answered “Yes.” Then he was asked: “ Were you there also authorized to bring suit? ” Defendants’ counsel then made “ the same objection ” which was sustained. The plaintiff then, without objection, introduced in evidence a copy of the proceeding appointing him the ancillary receiver. That record, including a copy of the proceedings in the Pennsylvania suit occupies 35 pages of the printed record in this Court. The nature of the objection which counsel had in mind in asserting lack of authority in the “ trustee ” to bring the suit is not clear. It obviously related equally to the authority conferred by the Pennsylvania court on the primary receiver. 4 The careful opinion of the District Judge (which occupies 14 pages of the printed record of this Court) makes no mention of any such objection or defense. 67 McCandless v. furlaud. Opinion of the Court. 73 signed. One of them was directed to an alleged holding that the order entered in the Southern District of New York “ constituted a due and valid appointment ” of McCandless as ancillary receiver. But the record does not show that the District Court did so rule; or that it was requested to rule on the subject. Moreover, the petitioner stated that the objection to the validity of the appointment had been made for the first time in the Court of Appeals; and counsel for the respondent, in his oral argument in this Court, said that the objection to the validity of the appointment was not urged by him because he desired to have a decision on the merits. Second. Under the early practice an objection to the legal capacity of the plaintiff to sue could be taken only by plea in abatement. Kane v. Paul, 14 Pet. 33, 41; Ventress v. Smith, 10 Pet. 161, 168. Now, it may be taken by plea in bar or by answer. Noonan v. Bradley, 9 Wall. 394, 400-402. But an objection to the plaintiff’s legal capacity to sue will not be entertained if taken, for the first time, in the appellate court. The rule is of general application and has been applied in the federal appellate courts to a variety of cases. To lack of capacity on the ground of infancy;5 on the ground that plaintiff was a married woman;6 on the ground that the husband was not entitled to sue in his own name for the death of his wife;7 on the ground that plaintiff, a foreign corporation, had failed to comply with requirements of the local law;8 on the ground that a suit in the name of the United States was brought without the requisite authority of the Attorney General.9 Under like circumstances the appel- 5 Paauhau Sugar Plantation Co. v. Palapala, 127 Fed. 920. 6 Buckingham v. Estes, 128 Fed. 584, 585-6. 7 St. Louis Southwestern Ry. Co. v. Henson, 58 Fed. 531. 8 Dahl v. Montana Copper Co., 132 U. S. 264. 9 McLaughlin n. United States, 107 U. S. 526, 528. 74 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. late courts have refused to entertain the objection that plaintiff was not the real party in interest,10 11 that the father was not entitled to sue for the death of his minor son;11 and that the plaintiff, an executor or administrator, had not secured ancillary administration.12 The reason for the rule is the broad one that a defect found lurking in the record on appeal may not be allowed to defeat recovery, where the defect might have been remedied, if the objection had been seasonably raised in the trial court.13 Third. The alleged invalidity of the order appointing McCandless ancillary receiver is a defect of this character. It is urged that the appointment of an ancillary receiver can be made only as an incident of an independent bill, and upon application of one properly a party thereto; that here there was nothing before the court, because no suit was then pending in the Southern District of New York; that there was neither a plaintiff nor a defendant; that no relief was prayed; that no process had issued; that the Corporation did not voluntarily appear; and, hence, that the court lacked the power to make the appointment, since there was nothing before it upon which its judicial power could act. We have no occasion to decide whether the contention is well founded. For if the validity of his appointment as ancillary receiver had been seasonably urged in the trial court, the plaintiff might have remedied the defect by causing an independent bill to be filed; the District Court might thereon have entered an order appointing him ancillary receiver; and, in this 10 Northwestern S. S. Co. v. Cochran, 191 Fed. 146, 149; Mayor v. United States ex rel. Helena Waterworks Co., 104 Fed. 113, 115. 11 Texas & Pacific Ry. Co. v. Lacey, 185 Fed. 225, 227; appeal dismissed, 229 U. S. 628. 12 Compare McAleer n. Clay County, 38 Fed. 707; Leahy v. Haworth, 141 Fed. 850. 18 Compare O’Reilly v. Campbell, 116 U. S. 418, 420. McCandless v. furlaud. 75 &J Opinion of the Court. cause, the trial court might have permitted the appropriate amendment of the bill of complaint.14 The rule that a federal appellate court must, of its own motion, dismiss the suit if it appears that the trial court was without jurisdiction, Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 379, 382, is not applicable to the situation presented here. In the case at bar the District Court confessedly had jurisdiction of the subject matter and of the parties. The objection sustained goes not to the jurisdiction of the District Court in this suit, but to the legal capacity of the plaintiff as ancillary receiver. Fourth. The objection which the Court of Appeals held fatal to the maintenance of this suit differs in essence from that sustained in Booth N. Clark. There, the foreign equity receiver suing in the federal court of another State failed because, having no title to the assets within the district, he was without a cause of action. He lacked title because the order appointing him did not, and could not, transfer to him the assets involved in the litigation. For that reason, a bill in the federal court for southern New York brought by the primary receiver, alleged to have been duly appointed in Pennsylvania and authorized to bring this suit, would have been bad on demurrer. But this bill by the ancillary receiver, which alleges that he had been duly appointed by the federal court for New York and authorized to bring the suit, would have been good on demurrer.* Great Western Mining Co. v. Harris, 198 U. S. 561, 576, shows that the rule of Booth v. Clark rests upon practical considerations. The foreign receiver failed in the Great Western case although he sued in the name of the corporation. He failed, as the Court there stated, because “ every jurisdiction, in which it is sought by means of a receiver to subject property to the control of 14 Compare Coal & Iron Ry. Co. n. Reherd, 204 Fed. 859. 76 OCTOBER TERM, 1934. Syllabus. 293 U. S. the court, has the right and power to determine for itself who the receiver shall be and to make such distribution of the funds realized within its own jurisdiction as will protect the rights of local parties interested therein, and not permit a foreign court to prejudice the rights of local creditors by removing assets from the local jurisdiction without an order of the court or its approval as to the officer who shall act in the holding and distribution of the property recovered.” The nature of the rule of Booth v. Clark is shown further by the fact that, when by statute the appointment of the receiver operates to transfer title, the foreign receiver may sue in the federal court for another State. See Bernheimer v. Converse, 206 U. S. 516; compare Converse v. Hamilton, 224 U. S. 243; Clark v. Williard, 292 U. S. 112. The judgment of the Court of Appeals is reversed and the cause is remanded to it for the determination of the questions relating to the liability of the defendants decided by the District Court and presented by the appeal and cross-appeal. Reversed. LONG v. ANSELL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. No. 18. Argued October 15, 1934.—Decided November 5, 1934. 1. A Senator of the United States, while in the District of Columbia in attendance at a session of the Senate, is immune under Constitution, Art. I, § 6 , cl. 1, from arrest in a civil case but not from the service of a summons. P. 82. 2. This constitutional privilege must not be confused with the common law rule that witnesses, suitors and their attorneys, while in attendance in connection with the conduct of one suit, are immune from service in another. P. 83. 63 App. D. C. 68; 69 F. (2d) 386, affirmed. 76 LONG v. ANSELL. Argument for Petitioner. 77 Certiorari, 292 U. S. 619, to review the affirmance of an order denying a motion to quash a summons and the service thereof in an action for libel. Mr. Seth W. Richardson, with whom Messrs. Joseph E. Davies, Raymond N. Beebe, and Adrian F. Busick were on the brief, for petitioner. It seems clear that, prior to the enactment of 12 and 13 W. Ill and 10 G. Ill, the privilege from arrest of members of Parliament embraced privilege from service of civil process. Cassidy v. Stewart, 2 M. & G. 437; State v. District Court, 34 Wyo. 288; Bolton v. Martin, (Pa.) 1 Dall. 296. But, in view of those enactments and the difference in jurisdictional conditions, the status of the privilege in England affords little aid in the determination of the question here submitted. It would seem, however, that, in framing the constitutional provision, the framers must have had in mind the broad meaning of the word “ arrest,” which, exclusive of statute, had previously prevailed in England, because the early cases in the United States all followed this broad interpretation of the word “ arrest.” Language similar to that of Constitution, Art. I, § 6, cl. 1, is found in nearly all of the constitutions of the States, and has been the subject of diverse interpretations. That the privilege referred to in the Federal Constitution applies only to civil cases, was settled by Williamson v. United States, 207 U. S. 425. Consequently, the only question remaining is whether the word “ arrest ” refers only to those few remaining instances of civil arrest where actual detention of the person exists, or, more broadly construed, applies to the service of civil process upon the member of Congress, as originally in England, and as held in early cases immediately following the adoption of the Constitution. 78 OCTOBER TERM, 1934. Argument for Petitioner. 293 U. S. It is, of course, freely conceded that the authorities are not now in accord. The decisions opposed are collected in the opinion below. Applicable decisions and dicta are to be found in: Miner v. Markham, 28 Fed. 387; Bolton v. Martin, (Pa.) 1 Dall. 296; Geyer’s Lessee v. Irwin, (Pa.) 4 Dall. 107, followed in Gray v. Still, 13 W. N. C. 59, and Ross v. Brown, 7 Pa. Co. Ct. 142; Doty v. Strong, 1 Pinney 84; Anderson n. Roundtree, 1 Pinney 115; Robbins v. Lincoln, 27 Fed. 342; Welsh v. Mooney, 33 Oh. Cir. Ct. 214; Note, 76 Am. St. Rep. 534. These clearly support the rule that freedom from arrest includes freedom from service of civil process. It is believed that most of the opposing decisions present various characteristic differences which should have careful consideration. Distinguishing: United States v. Cooper, 4 Dall. 341; Case v. Rorabacker, 15 Mich. 537; Peters v. League, 13 Md. 58; Respublica v. Duane, 4 Yeates 347; People v. Hojstadtor, 258 N. Y. 425; Phillips v. Browne, 270 Ill. 450. A nonresident who is present in the jurisdiction as suitor or witness may not lawfully be served with process. This privilege is not dependent upon constitution or statute; it has grown out of public policy in the public interest. Stewart v. Ramsden, 242 U. S. 128; Wheeler v. Flintoff, 156 Va. 923; Arnett v. Smith, 165 Miss. 53; Zimmerman v. Buffington, 121 Neb. 670; State v. District Court, 34 Wyo. 288; Murrey v. Murrey, 216 Cal. 707; Higgins v. California Growers, 288 Fed. 550. It has been extended to national bank officials while attending conferences in other States upon the request of the Governor of a Federal Reserve Bank. Filer v. McCormick, 260 Fed. 309. The public nature of his service, its importance to his State, and its presumed supreme necessity to the Government, bespeak a greater need for this privilege in the case of a member of Congress than for the other classes of persons mentioned. LONG v. ANSELL. 79 76 Argument for Respondent. The defendant is only present in the District of Columbia as a member of Congress in attendance upon his official duties. His domicile and residence are in the State of Louisiana, where he abides. Courts of Louisiana stand open to the plaintiff to litigate any cause of action which he may have; and the law ought not to deny to the defendant, as a member of Congress, either under the constitutional provision, or under the principles of general law, the privilege which it so freely extends to litigants, witnesses, and even to individuals, on errands connected with the public interest. Mr. Samuel T. Ansell submitted, pro se. We rest our case upon the opinion of the Court of Appeals and Article I, § 6, of the Constitution. “Arrest” means actual detention of the person. An examination of the cases cited by petitioner requires us to say that they are not of a character to merit serious consideration or extended discussion. The law, as we think it has ever been applied in this jurisdiction from the earliest times, was long ago authoritatively declared in Merrick & Durant v. Giddings, 1 McArthur & Mackey 55, and Howard v. Trust Co., 12 App. D. C. 222, in able and exhaustive opinions; and now again by the Court of Appeals in the instant case. These decisions are in entire accord with Williamson v. United States, 207 U. S. 425, in which this Court manifestly saw no “ supreme necessity to the Government ” for liberalizing the immunity beyond strict constitutional requirement. Petitioner’s plea made to the courts below and now to the highest of American tribunals seems, to us at least, strikingly, almost disturbingly, strange and foreign—a plea for senatorial prerogative that places the personal wrongs done by a Senator to a private citizen beyond the effective reach of the law. He contends for a judicial 80 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. enunciation of a public policy rule under which the District of Columbia would become a retreat in which Senators, Representatives, and everybody else engaged here in public service, would be free from answering for their breaches of contract obligations and their tortious acts done to the person or property of the citizen. He urges that this Court should require the courts here to adopt what he regards as more modern public policy, and, without constitutional or statutory provision, extend the fullest immunity from civil suit not only to suitors and witnesses, but to any person who comes, or is brought, into a foreign jurisdiction of which he is not a resident, on a judicial or public errand and, a fortiori, to a Senator of the United States. The “ supreme necessity to the Government,” it is said, to which private rights must yield, requires that a Senator must not be “ subject to the menace of being harassed by private litigation in the District of Columbia.” If a Senator, or any of the thousands engaged here in the service of the public, injure or destroy the person, property, or reputation of a citizen, or flout his obligations to merchant, tailor, butcher, baker, this honorable Court is asked to say that the injured citizen shall have no redress in the courts here where the wrong is done, and must be content to follow the wrongdoing Senator into his own bailiwick—poor right indeed. Experience, we think, would suggest no judicial extension beyond the privileges and immunities fairly established by the specific provision of the Constitution. We are insensible to the argument that this Court should deduce out of the Constitution or its concept of public policy the remarkable immunity contended for. Mr. Justice Brandeis delivered the opinion of the Court. On March 27, 1933, Samuel T. Ansell, a resident of the District of Columbia, brought, in the Supreme Court of 76 LONG v. ANSELL, Opinion of the Court. 81 the District, an action for libel against Huey P. Long of Louisiana. The summons was served on the defendant within the District. It directed him to answer and show cause why the plaintiff should not have judgment for the cause of action stated in his declaration. The defendant, appearing specially, and solely for the purpose, filed on April 25, 1933, a motion to quash the summons and the service thereof on the following ground: “ The summons was issued on Monday, March 27,1933, and served on the defendant on Monday, April 3, 1933, whereas the first session of the Seventy-third Congress was convened on the ninth day of March, 1933, and has remained continuously in session since that date and was in session on the dates of the issuance and service of the said summons (of which fact defendant prays the court to take judicial notice) and the defendant as alleged is a United States Senator who was in attendance upon the meetings of the first session of the Seventy-third Congress of the United States and the summons and service thereof is invalid and of no legal effect whatsoever because in violation of Article I, Section 6, Clause 1, of the Constitution of the United States, which provides that Senators and Representatives of the United States 1 shall in all cases except treason, felony, and breach of the peace be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same.’ ” On May 9, 1933, the Supreme Court of the District denied the motion, but stayed further proceedings for twenty days pending application to the Court of Appeals of the District for a special appeal. That court allowed the appeal. On February 5, 1934, it affirmed the order denying the motion to quash. 63 App. D. C. 68; 69 F. (2d) 386. This Court granted certiorari. 292 U. S. 619. Senator Long contends that Article I, Section 6, Clause 1 of the Constitution, confers upon every member of Con-899950—35——6 82 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. gress, while in attendance within the District, immunity in civil cases not only from arrest, but also from service of process. Neither the Senate, nor the House of Representatives, has ever asserted such a claim in behalf of its members. Clause 1 defines the extent of the immunity. Its language is exact and leaves no room for a construction which would extend the privilege beyond the terms of the grant. In Kimberly v. Butler, Eed. Cases No. 7,777, Mr. Chief Justice Chase, sitting in the Circuit Court for the District of Maryland, held that the privilege was limited to exemption from arrest. Compare Mr. Justice Grier, sitting in the Circuit Court of the District of New Jersey in Nones v. Edsall, Fed. Cases No. 10,290. The courts of the District of Columbia, where the question has been raised from time to time since 1868, have consistently denied the immunity asserted. Merrick v. Giddings, McArthur & Mackey 55, 67; Howard n. Citizens’ Bank & Trust Co., 12 App. D. C. 222.1 State cases passing on similar provisions so hold.1 1 2 History confirms the conclusion that the immunity is limited to arrest. See opinion of Mr. Justice Wylie in Merrick v. Giddings. The cases cited in support of the contrary view rest largely upon doubtful notions as to the historic privileges of members of Parliament before the enactment in 1770 of the statute of 10 George III, c. 50.3 That act declared that members of Parliament 1 See also Worth v. Norton, 56 S. C. 56; 33 S. E. 792; Bartlett v. Blair, 68 N. H. 232; 38 Atl. 1004. 2Phillips v. Browne, 270 Ill. 450; 110 N. E. 601; Berlet v. Weary, 67 Neb. 75; 93 N. W. 238; Rhodes n. Walsh, 55 Minn. 542; 57 N. W. 212; Gentry v. Griffith, Hyatt & Co., 27 Tex. 461; Catlett v. Morton, 4 Litt. (Ky.) 122; compare Doyle-Kidd Dry Goods Co. v. Munn, 151 Ark. 629 ; 238 S. W. 40; Huntington v. Shultz and M’Kenna, 1 Harp. L. Rep. (S. C.) 452; Hart and Foster v. Flynn’s Executor, 8 Dana (Ky.) 190. 3 See Bolton v. Martin, 1 Dall. 296; Gyer’s Lessee v. Irwin, 4 Dall. 107; Doty v. Strong, 1 Pinney (Wis.) 84; Anderson v. Rountree, 1 LONG v. ANSELL. 83 76 Opinion of the Court. should be subject to civil process, provided that they were not “arrested or imprisoned.” When the Constitution was adopted, arrests in civil suits were still common in America.4 It is only to such arrests that the provision applies. Williamson v. United States, 207 U. S. 425. The constitutional privilege here asserted must not be confused with the common law rule that witnesses, suitors and their attorneys, while in attendance in connection with the conduct of one suit, are immune from service in another. That rule of practice is founded upon the needs of the court, not upon the convenience or preference of the individuals concerned. And the immunity conferred by the court is extended or withheld as judicial necessities require. See Lamb v. Schmitt, 285 U. S. 222, 225, 226. Affirmed. Pinney 115; Miner v. Markham, 28 Fed. 387. The first of these cases relied upon a passage in Blackstone in which it is stated that no member of either house may be “ served with any process of the courts of law . . . without a breach of the privilege of parliament.” The passage appears as quoted in the fourth edition of Blackstone (1771), v. 1, p. 165. In the fifth edition (1773), however, the phrase “ served with any process of the courts of law ” is deleted and other changes made in the same paragraph, so as to correspond with the statute of 10 George III, c. 50. In Miner v. Markham, the passage is quoted in its original form. 4 Wyche, Practice of the Supreme Court of the State of New York (2d ed., 1794), p. 50, et seq.; Robinson, Practice in Courts of Law and Equity in Virginia (1832), pp. 126-130; Howe, Practice in Civil Actions and Proceedings at Law in Massachusetts (1834), pp. 55-56, 141-148, 181-187; Troubat & Haly, Practice in Civil Actions and Proceedings in Supreme Court of Pennsylvania (1837), pp. 170-189. An early Virginia statute provided that in actions against the Governor and certain other officers of the Commonwealth, a summons! should issue “ instead of the ordinary process,” the capias ad respondendum. Collection of the Acts of the General Assembly of Virginia, Published Pursuant to the Act of 1792 (1794), c. 66, § 23, p. 83, Rev. Code (1819), c, 128, § 68, p. 506. 84 OCTOBER TERM, 1934. Statement of the Case. 293 U. S. HELVERING, COMMISSIONER OF INTERNAL REVENUE, v. STOCKHOLMS ENSKILDA BANK. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. No. 10. Argued October 10, 11, 1934.—Decided November 5, 1934. 1. Interest received by a foreign corporation from the United States with a refund of income taxes, is interest on an “ interest-bearing obligation ” of a “ resident,” within the meaning of § 217 (a) of the Revenue Act of 1926. P. 86. 2. An obligation to refund taxes erroneously or illegally collected, upon which, by express statutory direction, interest must be paid, is an interest-bearing obligation. P. 86. 3. The presumption that identical words used in different parts of the same Act are intended to have the same meaning, yields where words susceptible of different shades of meaning are found in such dissimilar connections as to show that they were employed in different senses. P. 87. 4. Section 213 (b) (4) of the Revenue Act of 1926, providing that the term gross income shall not include interest upon “ obligations of the United States,” was designed to aid the borrowing power of the Government by making its interest-bearing bonds attractive to investors, and the scope of the term must there be narrowed accordingly; but § 217 (a) is for the different purpose of producing revenue and must be construed from that standpoint. P. 91. 5. The United States is a “ resident ” within the meaning of the phrase “ residents, corporate or otherwise,” in § 217 (a) of the Revenue Act of 1926. P. 91. 6. The rule that taxing acts are to be construed strictly in favor of the taxpayer can not be allowed to defeat the obvious legislative intent when ascertained from the context and purpose of the statute and other appropriate tests. P. 93. 62 App. D. C. 360; 68 F. (2d) 407, reversed. Certiorari, 292 U. S. 618, to review the affirmance by the Court of Appeals of an order of the Board of Tax Appeals avoiding a deficiency assessment of income taxes. HELVERING v. STOCKHOLMS &c. BANK. 85 84 Opinion of the Court. Assistant Solicitor General MacLean, with whom Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. James W. Morris, John H. McEvers, and W. Marvin Smith were on the brief, for petitioner. Mr. Truman Henson for respondent. Opinion of the Court by Mr. Justice Sutherland, announced by the Chief Justice. Respondent, a foreign corporation having no office or place of business within the United States, received, during the year 1927, a refund of income taxes theretofore paid, including interest thereon in the sum of $8,683.91. In 1931, the Commissioner of Internal Revenue assessed against respondent in respect of this interest a deficiency of $1,172.32 upon its tax liability for the year 1927. The Board of Tax Appeals, upon petition for a redetermination, held that there was no deficiency and that the commissioner was in error in so deciding. 25 B. T. A. 1328. Upon petition for review brought by the commissioner, the court below sustained the action of the board. 62 App. D. C. 360; 68 F. (2d) 407. The case involves a consideration of certain provisions of the Revenue Act of 1926, c. 27, 44 Stat. 9. Section 233 (b) of that act provides that, in the case of a foreign corporation, “ gross income ” means only gross income from sources within the United States, determined in the manner provided in § 217, the pertinent provisions of which follow: “ Sec. 217. (a) In the case of a nonresident alien individual . . ., the following items of gross income shall be treated as income from sources within the United States: “(1) Interest on bonds, notes, or other interest-bearing obligations of residents, corporate or otherwise, not including (A) interest on deposits with persons carrying on 86 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. the banking business paid to persons not engaged in business within the United States and not having an office or place of business therein, ... “(c) The following items of gross income shall be treated as income from sources without the United States: “(1) Interest other than that derived from sources within the United States as provided in paragraph (1) of subdivision (a); . . .” The question for determination is whether the interest paid upon the amount of the tax refund falls within the classification, “ interest on bonds, notes, or other interestbearing obligations of residents, corporate or otherwise.” The contention of respondent before the Board of Tax Appeals and in the court below was, as it is here, that such interest payment was not within the reach of the provisions of § 217 (a), because (1) it was not interest upon an interest-bearing obligation, and (2) the United States is not a “ resident ” within the meaning of the phrase “ residents, corporate or otherwise.” First. If the words “ interest-bearing obligations ” stood alone, there would be no room for doubt as to their inclusive effect. Section 1111, 44 Stat. 115, Title 26, U. S. C. App. § 149, authorizes the commissioner to refund and pay back all taxes illegally or erroneously collected. The decision of the commissioner that a tax has been illegally or erroneously collected necessarily creates an obligation to make repayment. Section 1116 (a) of the Revenue Act of 1926, c. 27, 44 Stat. 9, 119, Title 26 U. S. C. App. § 153, provides that interest at the rate of six per centum per annum from the date of the payment of the tax to the date of the allowance of the refund shall be allowed and paid. Obviously, an obligation upon which by express statutory direction interest must be paid is an interest-bearing obligation. The point is made, however, that the word “ obligations,” as it occurs in another part of the act, has been HELVERING v. STOCKHOLMS &c. BANK. 87 84 Opinion of the Court. given a narrower construction, and that this is persuasive of the restricted meaning contended for here. That much may be conceded, since “ there is a natural presumption that identical words used in different parts of the same act are intended to have the same meaning.” Atlantic Cleaners & Dyers v. United States, 286 U. S. 427, 433. But since most words admit of different shades of meaning, susceptible of being expanded or abridged to conform to the sense in which they are used, the presumption readily yields to the controlling force of the circumstance that the words, though in the same act, are found in such dissimilar connections as to warrant the conclusion that they were employed in the different parts of the act with different intent. Idem. The comparison sought to be made is between the words in § 213 (b) (4) of the act, and the same words in § 217 (a). The former provides that the term “ gross income,” among other things, does not include interest upon “ obligations of the United States.” It is clear from a consideration of the entire section and of the subject matter that the purpose of Congress, in thus excluding from gross income interest upon such obligations, was to aid the borrowing power of the federal government by making its interest-bearing bonds more attractive to investors. American Viscose Corp. v. Comm’r of Int. Rev., 56 F. (2d) 1033. Compare United States Trust Co. of New York v. Anderson, 65 F. (2d) 575, 577-578. The scope of the word “ obligations ” as there employed must be narrowed accordingly, and not extended to include interest upon indebtedness not incurred under the borrowing power, as the court in the Viscose case properly held. But the use of the words “ interest on . . . interest-bearing obligations” in § 217 (a) is for a different purpose, namely, to produce revenue, not to encourage loans in aid of the borrowing power. The intent of Congress, therefore, in the one case, is fulfilled by giving the phrase a construction within the narrow 88 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. purposes of § 213 (b) (4); and, in the other case, by a construction, if the phrase fairly admits of it, which will effect the obviously different statutory aim of § 217 (a). Atlantic Cleaners <& Dyers v. United States, supra, was a suit brought to enjoin appellants from continuing an alleged conspiracy in restraint of trade and commerce in cleaning, dyeing, and otherwise renovating clothes contrary to § 3 of the Sherman Anti-trust Act. The defense was that appellants were engaged solely in the performance of labor and service in cleaning, dyeing and renovating wearing apparel, etc., and that this did not constitute “ trade ” within the meaning of the act. The argument was that since the words “ trade or commerce ” in § 1 of the act, which dealt with interstate commerce, must be construed not to include a business such as that carried on by appellant, the identical words used in § 3 dealing with restraint of trade or commerce within the District of Columbia should be given the same interpretation. Considering the subject matter of the act, and the scope of the legislative power exercised in the one case as compared with that exercised in the other, we held otherwise. In arriving at the conclusion that the word “ trade ”as used in § 3 was to be given a broader interpretation than the same word as used in § 1, we considered the history leading up to and accompanying the passage of the Sherman Act, the mischief to be remedied, and other circumstances, and held that Congress intended to exercise all the power it possessed; and since the scope of its power in dealing with the District was more extensive than when dealing with interstate commerce, we gave to the word “ trade ” its full meaning under § 3, unaffected by the narrower meaning which it might have under § 1. The considerations invoked in that case are equally applicable here. But it is said that the phrase in question must be restricted in accordance with the rule of ejusdem generis. The point is not without merit. The phrase reads “ in- HELVERING v. STOCKHOLMS &c. BANK. 89 84 Opinion of the Court. terest on bonds, notes, or other interest-bearing obligations.” If the rule invoked be held controlling, it would follow that the general words “ other interest-bearing obligations ” must be assimilated to the particular words “ notes and bonds,” and restricted to obligations of the same kind. But while the rule is a well-established and useful one, it is, like other canons of statutory construction, only an aid to the ascertainment of the true meaning of the statute. It is neither final nor exclusive. To ascertain the meaning of the words of a statute, they may be submitted to the test of all appropriate canons of statutory construction, of which the rule of ejusdem generis is only one. If, upon a consideration of the context and the objects sought to be attained and of the act as a whole, it adequately appears that the general words were not used in the restricted sense suggested by the rule, we must give effect to the conclusion afforded by the wider view in order that the will of the legislature shall not fail. The general object of this act is to put money into the federal treasury; and there is manifest in the reach of its many provisions an intention on the part of Congress to bring about a generous attainment of that object by imposing a tax upon pretty much every sort of income subject to the federal power. Plainly, the payment in question constitutes income derived from a source within the United States; and the natural aim of Congress would be to reach it. In Irwin v. Gavit, 268 U. S. 161, 166, this court, rejecting the contention that certain payments there involved did not constitute income, said: “If these payments properly may be called income by the common understanding of that word and the statute has failed to hit them it has missed so much of the general purpose that it expresses at the start. Congress intended to use its power to the full extent. Eisner v. Macomber, 252 U. S. 189, 203.” Although Congress intended, as the court held in the Viscose case, supra, to include interest 90 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. on a tax refund made to a domestic corporation, we are asked to deny such intention in respect of a competing foreign corporation. But we see nothing in the relationship of a foreign corporation to the United States, or in any other circumstance called to our attention, which fairly shows that such a discrimination was within the contemplation of Congress. On the contrary, the natural conclusion is that if any discrimination had been intended it would have been made in favor of, and not against, the domestic corporation, which contributes in a much more substantial degree to the support of the people and government of the United States. The foregoing views are put beyond all fair doubt, if otherwise any would remain, by the consideration of a qualification contained in the section itself. After declaring that interest on bonds, notes, or other interestbearing obligations shall be treated as income from sources within the United States, the section immediately proceeds to exclude from that language “ interest on deposits with persons carrying on the banking business paid to persons not engaged in business within the United States . . .” It is apparent from this exception that Congress understood that unless the exception were made, the interest on such deposits would fall within the term “ interest-bearing obligations,” and to prevent that result it was necessary to specifically create the exception. The conclusion fairly results that the clause was intended to include all interest-bearing obligations not specifically excepted. The opinion delivered by Lord Tenterden in The King v. The Trustees for paving Shrewsbury, 3 Barnewall & Adolphus 216, is directly in point. There a statute imposed certain charges and expenses, in connection with the operations of a gas light company, upon tenants or occupants of houses, shops, malt-houses, granaries, etc., and hereditaments within Shrewsbury, HELVERING v. STOCKHOLMS &c. BANK. 91 84 Opinion of the Court. “ meadow and pasture ground excepted.” The contention was that the word “hereditaments” must be confined to hereditaments ejusdem generis with those enumerated. The court, holding otherwise, said (p. 220): “ Now it is certain that meadows and pastures would . have fallen within the meaning of the word 1 hereditament,’ if they had not been excepted; it was argued, therefore, that this special exemption of meadows and pastures shewed that the other word had been previously used in its larger sense. On the other hand it was contended, that these words had been introduced merely ex majori cauteld. Upon the best consideration we have been able to give this case, we are of opinion, that we ought not to consider the exception of meadow and pasture ground as made only for greater caution, but are bound to look upon it as introduced by way of special exception, and so to construe the clause: and, consequently, every thing not so specifically excepted must be understood to fall within the general liability.” Interest on deposits is no more akin to notes and bonds than is interest on tax refunds; and the fact that the former was expressly excepted from the operation of the substantive provision quite clearly justifies the conclusion that the lawmakers attached to the general clause a larger meaning than it would have if limited to things ejusdem generis with those specifically enumerated. Certainly, if it was necessary to save interest on deposits from the embrace of the general clause by an exception, it was equally necessary to save interest on tax refunds by a like exception. Second. Is the United States a resident within the meaning of the words “ residents, corporate or otherwise”? We think it is. It many times has been held that the United States or a state is a “ person ” within the meaning of statutory provisions applying only to per 92 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. sons. See Ohio n. Helvering, 292 U. S. 360, 370, and cases cited. In Martin v. State, 24 Tex. 61, 68, this was held in respect of a criminal statute, notwithstanding the general rule that such statutes are to be construed strictly. The statute there penalized the false making or fraudulent alteration of a public record when done “ with intent that any person be defrauded.” The state supreme court held that the state was to be taken as a “ person ” within the meaning of the statute, and one who made the entry with intent to defraud the state violated the statute. The Texas decision was expressly followed by this court in Stanley v. Schwalby, 147 U. S. 508, 517, where it was held that the word “ person ” used in the statute there under consideration would include the United States “ as a body politic and corporate.” Blackstone, writing on the rights of persons (1 Bl. 123) says: “ Persons also are divided by the law into either natural persons, or artificial. Natural persons are such as the God of nature formed us; artificial are such as are created and devised by human laws for the purposes of society and government, which are called corporations or bodies politic.” While it cannot be said that the United States, in its corporate capacity as an artificial person, has a bodily presence in any place, it is not unreasonable to hold that in the eye of the law, it has a residence, and especially so when a contrary holding would defeat the evident purpose of a statute. This may be in the nature of a legal fiction ; but legal fictions have an appropriate place in the administration of the law when they are required by the demands of convenience and justice. Thus, intangible personal property has been held to have a situs at the domicile of the owner, although intangibles ordinarily have no actual situs and the paper evidence of their existence may be elsewhere. First National Bank v. Maine, 284 HELVERING v. STOCKHOLMS &c. BANK. 93 84 Opinion of the Court. U. S. 312, 328-329. If to carry out the purposes of a statute it be admissible to construe the word “ person ” as including the United States, it is hard to see why, in like circumstances, it is inadmissible to construe the word “ resident” as likewise including the United States. And, finally, if the United States be not a “ resident ” in respect of interest upon “ other interest-bearing obligations,” it is, of course, not a “ resident ” in respect of interest upon its bonds held by nonresident aliens and corporations. The interest upon many of these bonds is subject to a super-income tax and to certain other taxes. If it had been intended to make an exemption in respect of such taxes in favor of nonresidents, it is reasonable to suppose that Congress would have said so in explicit terms * instead of leaving the fate of taxes upon the large sums thus involved to depend upon the way in which a court might happen to construe the word “ resident ”—a most unsatisfactory substitute, as the conflicting decisions in this and the next succeeding case bear witness. We cannot assent to the view that Congress has written into the law an exception of such importance in a manner so indirect and casual. In the foregoing discussion, we have not been unmindful of the rule, frequently stated by this court, that taxing acts “ are not to be extended by implication beyond the clear import of the language used,” and that doubts are to be resolved against the government and in favor of the taxpayer. The rule is a salutary one, but it does not apply here. The intention of the lawmaker controls in the construction of taxing acts as it does in the construction of other statutes, and that intention is to be ascertained, not by taking the word or clause in question from its setting and viewing it apart, but by considering it in con- * As, for example, it did in the Act of March 3, 1919, § 4, c. 100, 40 Stat. 1309, 1311. 94 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. nection with the context, the general purposes of the statute in which it is found, the occasion and circumstances of its use, and other appropriate tests for the ascertainment of the legislative will. Compare Rein v. Lane, L. R. 2 Q. B. Cases 144, 151. The intention being thus disclosed, it is enough that the word or clause is reasonably susceptible of a meaning consonant therewith, whatever might be its meaning in another and different connection. We are not at liberty to reject the meaning so established and adopt another lying outside the intention of the legislature, simply because the latter would release the taxpayer or bear less heavily against him. To do so would be not to resolve a doubt in his favor, but to say that the statute does not mean what it means. “ The rule of strict construction is not violated by permitting the words of a statute to have their full meaning, or the more extended of two meanings. The words are not to be bent one way or the other, but to be taken in the sense which will best manifest the legislative intent. United States v. Hartwell, 6 Wall. 385, 396; United States v. Corbett, 215 U. S. 233, 242.” Sacramento Nav. Co. v. Saiz, 273 U. S. 326, 329. The rule of strict construction applies to penal laws, but such laws are not to be construed so strictly as to defeat the obvious intention of the legislature; or so applied as to narrow the words of the statute to the exclusion of cases which those words, in the sense that the legislature has obviously used them, would comprehend. United States v. Wiltberger, 5 Wheat. 76, 95. That view, expressed by Chief Justice Marshall, has since been frequently followed by this court. See, for example, American Fur Co. v. United States, 2 Pet. 358, 367; United States v. Morris, 14 Pet. 464, 475; United States v. Hartwell, supra, 395-6; Donnelley v. United States, 276 U. S. 505, 512. Judgment reversed. BRITISH-AMERICAN CO. v. HELVERING. 95 Opinion of the Court. BRITISH-AMERICAN TOBACCO CO., LTD., v. HELVERING, COMMISSIONER OF INTERNAL REVENUE. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 24. Argued October 11, 1934.—Decided November 5, 1934. Decided upon the authority of Helvering v. Stockholms Enskitda Bank, ante, p. 84. 69 F. (2d) 528, affirmed. Certiorari, 292 U. S. 619, to review a judgment reversing a decision of the Board of Tax Appeals and sustaining the action of the Commissioner in assessing a deficiency of income tax. Mr. John H. Jackson, with whom Messrs. H. H. Shelton and Haig H. Davidian were on the brief, for petitioner. Assistant Solicitor General MacLean, with whom Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. James W. Morris, John H. McEvers, and W. Marvin Smith were on the brief, for respondent. Opinion of the Court by Mr. Justice Sutherland, announced by the Chief Justice. This is a companion case to No. 10, just decided. The facts, although differing in detail, are in substance the same. The same questions are involved. The court below reversed the Board of Tax Appeals for reasons substantially similar to those we have just expressed in No. 10. 69 F. (2d) 528. Upon the authority of No. 10, ante, p. 84, the judgment below is Affirmed. 96 OCTOBER TERM, 1934. Argument for Petitioners. 293 U. S. BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN et al. v. PINKSTON. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 32. Argued October 16, 17, 1934.—Decided November 5, 1934. 1. In a suit in equity brought by a widow for the purpose of preserving and protecting her right to future participation in a fund from which she is entitled to receive a pension of so much per month during her lifetime as long as she shall remain unmarried, the amount in controversy, determining the federal court’s jurisdiction, is the present value of her interest, calculable from the amount of the monthly payment and her life expectancy. P. 99. 2. The fact that the further payments will cease if the pensioner remarry does not render them contingent or speculative. Thompson v Thompson, 226 U. S. 551. P. 100. 3. The evidence discloses that the pensioner’s “ expectancy of remarriage ” and its effect upon the value of her interest in the fund were subject to actuarial measurement in this case. P. 101. 69 F. (2d) 600, affirmed. Certiorari, 292 U. S. 621, to review the reversal of a decree dismissing the bill, for lack of jurisdiction, in a suit by a widow on behalf of herself and of other beneficiaries similarly situated, for an accounting and other equitable relief in respect of a fund established by a labor association for the pensioning of widows of their deceased members. Mr. Thomas Stevenson for petitioners. Future payments depend entirely upon the volition of the beneficiary. The probability of remarriage can not even be conjectured. It is impossible to estimate the present value of such contingent payments. The court below carefully excluded from consideration either the accumulated Pension Fund or the combined claims of all matured certificate holders. Jurisdiction BROTHERHOOD v. PINKSTON. 97 96 Argument for Petitioners. rested solely upon the respondent’s right under the certificate which she holds. Eberhard v. Northwestern Mutual Life Ins. Co., 241 Fed. 353; Lyon Bonding & Surety Co. v. Karatz, 262 U. S. 77. In Thompson v. Thompson, 226 U. S. 551, jurisdiction depended entirely upon whether the monthly payments for maintenance of the wife and child provided for under the order of the court were contingent. That case is an exception from a well established rule. If, as conclusively shown in Dunbar v. Dunbar, 190 U. S. 340, it is impossible to value future payments, subject to the contingency of remarriage, for the purposes of a discharge under the Bankruptcy Act, how can this be done for the purpose of acquiring federal jurisdiction, in the face of the strict rule of construction and counter presumption governing that subject? The doctrine of the Dunbar case has frequently been followed: Shanley v. Herold, 141 Fed. 423; Herold v. Shanley, 146 Fed. 20; In re Westmoreland, 4 F. (2d) 602. In the Thompson case no condition was stated in the court order which would of its own force defeat the future payments. The payments were as “fixed” as humanly possible. An independent authority must act to effect any change. The ruling below is at variance with the decisions of other federal courts and also state courts of last resort, in denying federal jurisdiction in analogous cases, namely, those based upon insurance policies and allegations of total and permanent disability. LaVecchia v. Connecticut Mutual Life Ins. Co., 1 F. Supp. 588; Wyll v. Pacific Mutual Life Ins. Co., 3 F. Supp. 483; Kithcart v. Metropolitan Life Ins. Co., 1 F. Supp. 719; Reliance Life Ins. Co. v. Capital Nat. Bank, 38 Ga. App. 349; Guardian Life Ins. Co. v. Johnson, 186 Ark. 1019; Fields v. Equitable Life Ins. Co., 199 N. C. 454. 89995°—35--7 98 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. Mr. W. L. Bryan, with whom Mr. James R. Garfield was on the brief, for respondent. In support of the ruling below, they cited: Thompson v. Thompson, 226 U. S. 551; Western & Atlantic R. Co. v. Railroad Commission, 261 U. S. 264; Berryman v. Board of Trustees, 222 U. S. 334; Mutual Life Ins. Co. v. Rose, 294 Fed. 122; Wright v. Mutual Life Ins. Co., 19 F. (2d) 117; New York Life Ins. Co. v. Swift, 38 F. (2d) 175; Smith v. Whitney, 116 U. S. 167; Bitterman v. Louisville & N. R. Co., 207 U. S. 205; Hunt v. N. Y. Cotton Exchange, 205 U. S. 322; and Wisconsin Electric Co. v. Dunmore Co., 35 F. (2d) 555. Respondent asks that a trust be declared in and of the Widows Pension Fund and that such fund, now admittedly insolvent, be administered under order of the court. The fund so referred to approximates $300,000.00 in value. This also is a proper basis for determining the question of jurisdiction. Handley v. Stutz, 137 U. S. 366; Jones n. Mutual Fidelity Co., 123 Fed. 506; Putnam v. Timothy Dry Goods Co., 79 Fed. 454; Kelly v. Graphite Co., 34 F. (2d) 791; Conway n. Bank & Trust Co., 185 Fed. 950; Hotel Co. v. Wade, 97 U. S. 20; Towle v. American Building Loan Investment Society, 60 Fed. 131; King N. Kansas City Police Relief Assn., 60 F. (2d) 547; Local No. 7 v. Bowen, 278 Fed. 271. Opinion of the Court by Mr. Justice Sutherland, announced by the Chief Justice. The Brotherhood of Locomotive Firemen and Enginemen is an unincorporated voluntary association with headquarters in Ohio. It has a department known as the Widows’ Pension Department, created in order to provide a monthly income for the widows or widowed mothers of deceased members. The widow of a member, upon his death, is to receive a pension of $35 per month during her lifetime. In the event of her remarriage, the BROTHERHOOD v. PINKSTON. 99 96 Opinion of the Court. pension is to cease. The respondent, widow of a deceased member, became entitled to this pension. Thereafter, the association, following an investigation of the financial condition of the department and upon an actuarial report, determined to abolish the department and distribute the assets after making a lump-sum settlement not to exceed $1,500 with each widow then on the pension roll. Widows refusing to settle were to have their names erased from the roll, and be provisionally relegated to another fund. Payment of monthly instalments on pensions was discontinued, beginning September 1st, 1931. Complainant thereupon brought suit in a federal district court, on behalf of herself and other beneficiaries similarly situated, for an accounting, determination of priorities, and a proper liquidation and administration of the funds of the department. The federal jurisdiction was invoked on the ground of diversity of citizenship. The district court, after a hearing, dismissed the bill on the ground that the requisite amount to confer jurisdiction (over $3,000) was not involved. The court of appeals reversed, 69 F. (2d) 600, upon the authority of Thompson v. Thompson, 226 U. S. 551. Whether that court rightly held that the jurisdictional amount was involved is the only question for consideration. The entire fund is nearly $300,000. The bill proceeds on the theory that this constitutes a trust fund, and seeks its administration under judicial orders. Respondent urges that the jurisdiction may well be tested by the value of the whole fund. But we put that question aside, since we are of opinion that the value of respondent’s own interest in the fund exceeds the jurisdictional amount. This, it will be seen, is not an action at law to recover overdue instalments, but a suit in equity to preserve and protect a right to future participation in the fund. If 100 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. the value of that right exceeds $3,000, the district court has jurisdiction. In the Thompson case, a decree had been entered by the Supreme Court of the District of Columbia in favor of a wife against her husband, for support and maintenance at the rate of $75 a month, together with $500 for counsel fees. The decree was reversed by the Court of Appeals of the District. On an appeal to this court, our jurisdiction was challenged upon the ground xthat a sum in excess of $5,000 was not involved, as the statute at that time required. While the instalments already accrued amounted to much less than that, it was held that the expectancy of life of the parties was clearly sufficient to make up the balance, and jurisdiction was upheld. Mr. Justice Pitney, who delivered the opinion, said (p. 560)—“ The future payments are not in any proper sense contingent or speculative, although they are subject to be increased, decreased or even cut off, as just indicated.” The situation there and that here fairly cannot be distinguished. The life expectancy of respondent, as shown by the mortality tables, is enough to bring the value of the future pension instalments, as of the date of the suit, to a sum much in excess of $3,000; and as to that no point is made. The jurisdictional defect said to exist is that the payments are to cease in the event of respondent’s remarriage; and this condition, petitioners say, makes future payments depend entirely upon the volition of the widow, and whether they may accrue is, therefore, a matter of pure speculation. Indeed, the happening of the event does not depend (if that would matter) upon the widow’s volition alone, but equally upon the willingness of another to marry her. Continuance of payments during the life of the respondent is fixed by contract quite as definitely as continuance of payments for maintenance in the Thompson case was fixed by decree, and subject to substantially like conditions subsequent. In the Thomp- 96 BROTHERHOOD v. PINKSTON. Opinion of the Court. 101 son case the payments were subject to be cut off entirely, not only by death but, the court said, “ in the event of a change in the circumstances of the parties.” The same is true here. In no respect are we able to see any difference in principle between the two cases. The occurrence of the specified event which would put an end to the obligation is no more uncertain in the one case than in the other. Moreover, the evidence discloses that the expectancy of remarriage and its effect upon the value of the pension are capable of actuarial determination. The law of averages applies in respect of that event, as it does in respect of death and of other events. Mr. Pipe, an actuary called as a witness by petitioners, testified that the value of respondent’s right to receive $35 a month so long as she remained unmarried was, in round figures, $6,000 as of August 1, 1931. A report made to the Brotherhood, filed June 2, 1932, by its Committee on Constitution, which seems to have been made after careful study, contains the statement: “ The ‘ present value ’ can be determined if we know the average ages of widows corresponding to the ages at the death of members, and we know the proportion of widows who remarry. This information is available from the records of Pension Funds. For example, if we know that the average age of the widows of members who die at age 40, is 36, then the value of the benefit in event of death at 40, is the present value of a pension of $420 per annum on the life of a woman aged 36, taking into account the chances of remarriage. The benefit has a definite ‘ lump sum ’ value on the death of the member, . . .” Counsel upon both sides have cited and discussed decisions of this and other courts bearing upon the general subject. We have examined these decisions, but find it unnecessary to review or distinguish them. We agree with the court below that the question of jurisdiction here 102 OCTOBER TERM, 1934. Syllabus. 293 U. S. under consideration is the same in substance as that involved in the Thompson case; and, that being so, the decree of the court below must be Affirmed. ROWLEY, TREASURER OF CONVERSE COUNTY, WYOMING, et al. v. CHICAGO & NORTHWESTERN RAILWAY CO. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. No. 9. Argued October 10, 1934.—Decided November 5, 1934. 1. The Court is reluctant to place constructions upon state statutes of doubtful meaning, or to decide other questions of state law as to which there may be substantial controversy, in advance of decision by the state courts of last resort. P. 104. 2. The ascertainment of the value of a railway system is not a matter of arithmetical calculation and is not governed by any fixed and definite rule. Facts of great variety and number, estimates that are exact and those that are approximations, forecasts based on probabilities and contingencies have bearing and properly may be taken into account to guide judgment in determining what is the money equivalent—the actual value—of the property. P. 109. 3. An apportionment of system value of a railroad for taxation in one of several States traversed by its lines can not be adjudged arbitrary merely because the mileage basis was used, although the average value per mile in that State was much less than for the system as a whole, where the mileage ratio was applied not singly but combined with others, such as the ratios of the traffic units, use of rolling stock and average of gross and net operating revenue in that State to the system totals; where the computation was tested by other criteria, such as the relations between cost of reproduction less depreciation of the local property and system value and between operating net revenues derived from that property and those earned by the system; and where there is nothing to show that the assessment was excessive. P. 110. ROWLEY v. CHICAGO & N. W. RY. 103 102 Opinion of the Court. 4. Overvaluation by state tax officials resulting from error of judgment will not support a claim of discrimination. There must be something that amounts to an intention, or the equivalent of fraudulent purpose, to disregard the fundamental principle of uniformity. P. 111. 5. Upon finding in an injunction suit that a state tax violates the equal protection clause of the Fourteenth Amendment because of discrimination in assessment, the federal court should leave thb State free to reassess; it is without jurisdiction to fix the base and amount of the tax that may be lawfully exacted. P. 112. 68 F. (2d) 527, reversed. Certiorari, 292 U. S. 618, to review the affirmance of a decree of the District Court holding state taxes on the Railway Company’s property in Wyoming arbitrary and excessive and enjoining collection upon the condition that the Company pay taxes on a reduced valuation made by the court. Mr. Ray E. Lee, Attorney General of Wyoming, and Mr. James A. Greenwood, with whom Mr. George A. Weedell was on the brief, for petitioners. Mr. Robert R. Rose, with whom Messrs. Samuel H. Cady, William T. Fancy, and Vincent Mulvaney were on the brief, for respondent. Mr. Justice Butler delivered the opinion of the Court. This suit was brought in the district court for Wyoming by the company against the treasurers of four counties to enjoin collection of a part of the taxes for 1931 levied upon its railroad property therein. The laws of that State required all taxable property to be assessed on the basis of its actual value. See State Constitution, Art. XV, § 11. Wyoming Compiled Statutes, 1931, §§ 115-119, 115-511, 115-1804. The complaint rests upon the 104 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. claim that for a number of years, including the one here involved, the State acting through its board of equalization and other taxing authorities systematically and intentionally discriminated against respondent’s railroad and in favor of all other property, in violation of the equal protection clause of the Fourteenth Amendment, in that it regularly taxed the railroad at about 133^% while taxing all other property at about 60% of actual value. Respondent tendered and paid to the treasurer of each county the amount it claimed would have been levied against it if all taxable property had been assessed upon the same basis of valuation. The total claimed by the four counties was $168,606.12; respondent paid $101,163.67, leaving in controversy $67,442.45. Petitioners’ answer denied discrimination. There was a trial at which much evidence was introduced. The district court upon specific findings of fact concluded that respondent’s railroad property in Wyoming had been substantially and arbitrarily overvalued. It found that, with exceptions that are here immaterial, all other property had been assessed at its actual value. It entered a decree requiring respondent to pay additional taxes amounting in all to $33,519.46 and enjoining collection of any part of the balance. Petitioners seek reversal upon the ground that respondent failed to exhaust an administrative remedy open to it by appeal from the determination of the state board of equalization to the district court under § 115-512, Wyoming Compiled Statutes, 1931. They also maintain that under § 115-311 respondent had an adequate remedy at law and therefore was not entitled to relief in equity. These contentions depend upon serious questions of Wyoming law which have not been decided by its highest court. This court is reluctant, in advance of decision thereon by the state courts of last resort, to construe state ROWLEY v. CHICAGO & N. W. RY. 105 102 Opinion of the Court. statutes of doubtful meaning or to decide other questions of state law as to which there may be substantial controversy. In this case it is not necessary, for, upon an analysis of the grounds of the decision below, it is clear that respondent was not entitled to an injunction. Respondent does not challenge the finding that other property was assessed at actual value, and so there remains only the claim that its railroad was intentionally and arbitrarily overvalued by about 33%%. The company had 278.35 miles of main line track in Wyoming and that constituted 3.29% of the main line track included in its system extending into nine States. Neither it nor the board dealt with that in Wyoming as a separate line; both appraised it as a part of the system. They took the value of the whole, attributed to Wyoming a portion and divided it among the four counties. The only matter in controversy is the amount to be assigned to that State. To ascertain system value, respondent made calculations based on a five year period ending with 1930. It found the average market value of its stocks and bonds, deducted non-operating property locally taxed, added the remainder ($385,800,085) to an amount produced by capitalizing at 6% average net operating income ($364,-771,720). The sum divided by two produced $375,285,-902 which the board accepted for the purposes of its calculation, though one of its members testified “ there are certain flaws in it.” To ascertain the value to be taxed in Wyoming respondent found for each year and also the average for the five-year period the percentages that Wyoming traffic units (ton miles and passenger miles) bore to the system total, the corresponding relation of use of rolling stock (car miles and engine miles) and of gross operating rev- 106 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. enues, and by the calculations printed in the margin,1 arrived at $5,849,570. In pursuance of § 115-1803, respondent filed a return showing “ grand total valuation $8,281,950.” It attached a statement which includes the following: “ The valuations shown in this return are based upon the estimated cost of reproduction new of the physical properties . . . less depreciation, and without further Year Value of entire line as represented by market values of stocks and bonds (1) Assigned to State of Wyoming on basis of Traffic units (2) Operating revenues (3) Use of rolling stock (4) Average of 3 bases (5) 1 1926 $ 342,767,737 398,490,108 397, 772,006 398,555,050 391,415,526 $ 5,827,052 7,212,671 6,085,912 5,699,337 5,558,100 $ 5,038,686 6,057,050 5,847,248 5,579,771 5,714,667 $ 5,929,882 7,372,067 6,284,798 6,018,181 6,027,799 $ 5,598,540 6,880,596 6,072,653 5,765,763 5,766,855 2 1927 3 1928. 4 1929. 5 1930 6 Aggregate $1,929,000,427 $ 385,800,085 $30,383,072 $ 6,076,614 $28,237,422 $ 5,647,484 $31,632,727 $ 6,326,545 $30,084,407 $ 6,016,881 7 Aver. 5 Yrs Year Value of entire line as represented by income capitalized at «% Assigned to State of Wyoming on basis of Traffic units Operating revenues Use of rolling stock Average of 3 bases 8 1926 $ 371,585,653 337,628,225 387,094,715 437,002,491 290,547,517 $ 6,316,956 6,111,071 5,922,549 6,249,136 4,125,775 $ 5,462,309 5,131,949 5,690, 293 6,118,035 4,241,994 $ 6,428,432 6,246,122 6,116,096 6,598,738 4,474,432 $ 6,069,232 5,829,714 5,009,646 6,321,970 4,280,734 9 1927 10 1928 11 1929 12 1930 13 Aggregate $1,823,858,601 $ 364,771,720 $28,725,487 $ 5, 745,097 $26,644,580 $ 5,328,916 $29,863,820 $ 5,972,764 $28,411,296 $ 5,682,259 14 Aver. 5 Yrs Ratio used 15 1926 Entire line State of Wyoming 100.00% 100.00% 100.00% 100.00% 100.00% 1.70% 1.81% L 53% 1. 43% 1.42% 1- 47% 1.52% 1- 47% 1.40% 1.46% 1.73% 1.85% 1.58% 1.51% 1.54% 16 1927 17 1928 18 1929 19 1930 20 Average for 1930 only.. Miles of road Per mile of road 278.35 278.35 $18,085 $21,015 $5,023,795 $5,849,570 21 Average for Five Years. 102 ROWLEY v. CHICAGO & N. W. RY. 107 Opinion of the Court. reference to the market value of such properties, or . . . of the stocks and bonds ... or the present earnings ... or the present or future earning capacity or possibilities of such properties. It is claimed that the valuations stated in this return do not represent the fair cash value of the property for purposes of taxation. The value as to the system .. . and as to the part in .. . Wyoming is clearly and fairly set [forth] by the figures contained in the exhibits attached to this return . . . and which . . . show that the total true value . .. in .. . Wyoming, or properly allocated to the State does not exceed $5,849,570.” After receiving the return, the board found cost of reproduction new less depreciation of respondent’s railroad properties in Wyoming on the basis of an appraisal by the Interstate Commerce Commission as of 1917 plus later betterments to be $11,724,126, depreciated that at the annual rate of 2.5% for 13 years and so produced $8,436,076; ascertained the Wyoming 1930 net operating income to be 2.23% of the total for that year, applied that ratio to system value ($375,285,902) and produced $8,368,876. Each of the two last mentioned indications of value is substantially more than the reproduction cost less depreciation given by respondent in its return. The board, in order to equalize the valuation of respondent’s property with other Wyoming railroad properties, made the assessment $7,989,587 which is 2.13% of system value. This is considerably less than the cost figures stated in the return. After notice of the assessment there was a hearing at which respondent presented the theory and bases of its appraisal. It appears that upon further consideration the board took into account the facts that for the five-year period Wyoming net revenue was 2.114% of the system total; respondent’s estimated cost of reproduction less depreciation of the Wyoming property was 2.21% of the system value, and that one-half the sum of these 108 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. percentages is 2.162%. Of the percentages used by the respondent, the board accepted those based on traffic units and use of rolling stock, rejected that based on gross operating revenues, substituted for it one-half of the sum of the gross operating revenue percentage plus the net operating revenue percentage, introduced the percentage that Wyoming mileage is of system mileage and divided the total by four, producing 2.1%. Its ascertainment of the ratio used follows: Traffic Units....................................... 1.58% Use of Rolling Stock............................... 1.65% Average between gross and net operating revenues.... 1.89% Main track mileage.................................. 3.29% Divided by 4........................................ 8.41% Percentage to be allocated to Wyoming................ 2.10% The board applied this percentage to system value and so established the final assessment, $7,881,003.94, which is less than the earlier one by more than $100,000. This is about 63% of the mileage proportion of agreed system value. The district court rejected as without support respondent’s use of the gross operating revenue percentage. It found that the board used the mileage basis, 3.29%, without taking into account the fact that respondent’s property in Wyoming measured on a mileage basis, was greatly less in quantity, quality, cost and value than the portion of its operating system located outside that State. It was upon that ground that the court concluded that respondent’s property “ was substantially and arbitrarily overassessed.” And it condemned as unreasonable and arbitrary the board’s use of the mileage percentage. Then proceeding to correct what it held to be the error of the board, the court found one-third of the sum of the percentages based on Wyoming and system traffic units, roll- 102 ROWLEY v. CHICAGO & N. W. RY. Opinion of the Court. 109 ing stock and the average between gross and net operating revenue to be 1.673%.2 It applied that ratio to the admitted system value and so produced $6,278,534.14— being a reduction of the assessment by $1,602,468.90— directed respondent to pay taxes on that basis and enjoined petitioners from collecting more. The ascertainment of the value of a railway system is not a matter of arithmetical calculation and is not governed by any fixed and definite rule. Facts of great variety and number, estimates that are exact and those that are approximations, forecasts based on probabilities and contingencies have bearing and properly may be taken into account to guide judgment in determining what is the money equivalent—the actual value—of the property. Boom Co. v. Patterson, 98 U. S. 403, 407 et seq. Cleveland, C., C. & St. L. Ry. Co. v. Backus, 154 U. S. 439, 445. Adams Express Co. v. Ohio, 166 U. S. 185, 220. Brooklyn City R. Co. v. New York, 199 U. S. 48, 52. Omaha v. Omaha Water Co., 218 U. S. 180, 202-203. Minnesota Rate Cases, 230 U. S. 352, 434, 454. Branson v. Bush, 251 U. S. 182, 185-188. Southwestern Bell Tel. Co. v. Pub. Serv. Comm’n, 262 U. S. 276, 287. United States v. New River Collieries, 262 U. S. 341. Brooks-Scanlon Corp. v. United States, 265 U. S. 106, 123-126. Standard Oil Co. v. Southern Pacific Co., 268 U. S. 146, 155 et seq. McCardle v. Indianapolis Water Co., 272 U. S. 400, 410, 414. Olson v. United States, 292 U. S. 246, 255 et seq. The apportionment of system value between Wyoming and the rest of the system involves the finding of the value of the portion of the railroad that is located in that State. The problem is quite like the ascertainment of the value of the whole. The determina- 2 The court also corrected an admitted error of the board, by substituting 1.79% for 1.89%, average between gross and net operating revenues. 110 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. tion is to be made in the exercise of a reasonable judgment based on facts so pertinent and significant as to be of controlling weight as indications of the value of the property. Where, as in this case, the evidence requires a finding that the railroad in one of the States reached by the system is clearly shown to be worth much less than the average value per mile of the system, an apportionment on mileage necessarily assigns an excessive amount to that State, and the use of that basis as the sole measure for apportionment must be condemned as arbitrary. Fargo n. Hart, 193 U. S. 490, 500. Union Tank Line Co. v. Wright, 249 U. S. 275, 282-283. Wallace v. Hines, 253 U. S. 66, 69. Cf. Chicago per cent, of gross production less royalties paid. The Board of Tax Appeals sustained the ruling.2 The Circuit Court of Appeals reversed the Board.3 The case is here on writ of certiorari.4 5 The petitioner construes § 204 (c) (2) in pari materia with § 234 (a) (8), and asserts the percentage deduction permitted by the former is subject to the requirement of equitable apportionment between the lessor and lessee required by the latter. The respondent urges that § 204 (c) (2) is an independent and complete provision, to be applied without reference to § 234 (a) (8), and that to attempt to apportion the allowance granted by § 204 (c) (2) in the manner indicated by § 234 (a) (8) would violate the plain terms of the statute. Reference to the structure of the successive income tax laws will aid in a solution of the problem. The Revenue Act of 1916® imposed an income tax by Title I. It divided the provisions as to tax into two parts, Part I on individuals, and Part II on corporations. In each part 2 26 B. T. A. 172. 8 70 F. (2d) 402. 4 Post, p. 540. 5 39 Stat. 756. 316 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. the statute first lays the tax and in a subsequent section grants certain deductions, those enumerated in § 5 of Part I being available to individuals, and those specified in § 12 of Part II to corporations. Both sections include a reasonable allowance for depletion in the case of oil and gas wells. In the drafting of the Revenue Act of 19186 a new arrangement of the subject matter was adopted. Title I is composed of definitions, Title II treats of income tax. Part I of this title consists of general provisions applicable alike to individual and corporate taxpayers. Sections under this part define taxable years and dividends, and § 202 prescribes the “ basis for determining gain or loss,” but makes no reference to depletion of mines, timber, or oil and gas wells. Additional sections have to do with inventories, net losses, and other general matters. Part II levies the tax on individuals, defines net and gross income, and in § 214 specifies the deductions allowed from gross income. The opening sentence of subsection (a) (10) is: “ In the case of mines, oil and gas wells, other natural deposits, and timber, a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case, based upon cost including cost of development not otherwise deducted.” Then follow two provisos, one directing how cost shall be ascertained in the case of properties acquired prior to March 1, 1913, and the other allowing an alternative method of calculating depletion upon the basis of discovery value of mines and oil and gas wells. The paragraph ends with the sentence: “ In the case of leases the deductions allowed by this paragraph shall be equitably apportioned between the lessor and lessee.” 6 40 Stat. 1057. HELVERING v. TWIN BELL SYNDICATE. 317 312 Opinion of the Court. In Part III, levying the corporation tax, § 234 (a) (9) allows a deduction for depletion in the identical phraseology employed with respect to individual taxpayers in § 214 (a) (10). The same method was followed in the Revenue Act of 1921.7 The general provisions contain no reference to depletion, but under Parts II and III of Title II the tax is fixed for individuals and corporations and the allowable deductions from gross income are set forth. The paragraphs of the prior Act as to depletion of oil and gas wells are literally reenacted, but there is inserted in § 214 (a) (10) as to individuals and § 234 (a) (9) as to corporations, an additional proviso with respect to discovery value. In the framing of the Revenue Act of 19248 the same arrangement was observed. General definitions are found in Title I; Title II treats of income tax, and in Part I of that title are included general provisions applicable to both individual and corporate taxes. Amongst such general provisions in the earlier acts there had been a section entitled “ Basis for determining gain or loss.” In the 1924 Act the draftsman embodied paragraphs similar to those of the earlier act in § 204, but enlarged the caption to read “ Basis for determining gain or loss, depletion, and depreciation,” and transferred to this section that portion of the depletion provision dealing with the basis of the allowance which had formerly appeared under the heading “ Deductions ” in Part II, Individuals, and Part III, Corporations. This added to the old § 204 a new subsection (c), which permits the use of cost or discovery value as the basis of depletion in the case of mines and oil and gas wells. Having transferred these provisions from §§ 214 (a) (9) and 234 (a) (8), respecting individual 7 42 Stat. 227. 8 43 Stat. 253. 318 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. and corporate deductions, there remained in those sections the language first found in the Act of 1918, above quoted, including the concluding sentence relating to equitable apportionment between lessor and lessee. The thought apparently was that the authority for the deduction should remain in the sections dealing with all deductions and the formulae for calculating the deduction should be relegated to a general provision applicable alike to corporations and individuals. The depletion allowance based on discovery value was found difficult of administration, since it required a separate valuation of each well,9 and was abandoned in the Revenue Act of 1926.10 11 There was substituted a flat allowance of 27^ per cent, of gross income. In this Act the same arrangement was followed as in that of 1924. Under Title II, Income Tax, Part I was devoted to general provisions. As the basis for determining gain or loss, depletion and depreciation, had been embodied in § 204 of the general provisions of the Act of 1924, in which was the permitted use of discovery value as a basis for depletion, when that method was discarded in favor of the flat percentage of gross income it was logical to insert the substituted paragraph in the place where the discarded one had been. Thus we find the new formula inserted as paragraph (c) (2) of § 204. The authority for deduction of depletion remains where it has always been since the Act of 1918, namely, in § 214 (a) (9) of Part II, Individuals, and § 234 (a) (8) of Part III, Corporations, and naturally there still remains in these paragraphs the limitation that the allowance shall be apportioned between lessor and lessee.11 9 See Senate Report No. 52, 69th Cong., 1st Sess., p. 17. 10 44 Stat. 9. 11 In framing the Revenue Act of 1928 (45 Stat. 791) the draftsman reverted to an arrangement similar to that found in the Revenue Act of 1916. Thus under Title I an income tax is laid on both individuals and corporations, and in subsequent portions of the Act general pro- HELVERING v. TWIN BELL SYNDICATE. 319 ¿12 Opinion of the Court. This outline of the framework of the legislation demonstrates that Congress did not insert § 204 (c) (2) as an independent section granting an allowance or deduction for depletion. In the earlier Acts both the grant and the method of computation were embraced in a subsection under the title “ Deductions.” In the later Acts of 1924 and 1926 the grant remained in the deduction section and the taxpayer was referred to a general provision in § 204 for the method of ascertaining its amount. Respondent emphasizes the last clause of § 204 (c) (2), which is: “except that in no case shall the depletion allowance be less than it would be if computed without reference to this paragraph.” It is argued that as this exception gives the taxpayer an option to compute the allowance either on the cost basis or by the flat percentage method, if he elects the former he proceeds under 234 (a) (8). Thus it is said that section applies only in case the cost basis is chosen. But an examination of the statute demonstrates the error of this position. No basis or formula for computation of the allowance is found in § 234; on the contrary all permissible procedures are covered by § 204, whether cost depletion of mines and oil visions are contained. In this Act the deductions from gross income are found in § 23 under Part II, “ Computation of Net Income,” and the language of § 214 (a) (9) and § 234 (a) (10) of the Revenue Act of 1926 is found only in this section, applicable to both sorts of taxpayers, corporate and individual, as subsection (1). A new subsection (m) is added, which states: “ The basis upon which depletion, exhaustion, wear and tear, and obsolescence are to be allowed in respect of any property shall be as provided in section 114.” Section 114 is found in Supplement B, and so far as material here is the same with respect to gas and oil wells as the analogous portions of § 204 (c) of the Act of 1926. It is quite clear, therefore, from this cross-reference, that the framers of the Act understood the deduction was allowed by § 23 (1) but the method of calculating it was to be ascertained by reference to a general provision on that subject, § 114. 320 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. wells, paragraph (c) ; discovery value basis in the case of mines (c) (1); or flat percentage of gross income in the case of oil and gas wells (c) (2). If, therefore, the taxpayer does not compute under (c) (2) he must do so in accordance with the cost method prescribed by the earlier paragraph (c) of the same section, and not, as contended, under 234 (a) (8). It follows that whichever method outlined in § 204 is chosen for computing the allowance granted by § 234, the deduction must be apportioned between lessor and lessee. We come, then, to consider the propriety of the procedure followed by the Commissioner. What he did, in effect, was to treat the gross production less royalties as the measure of the respondent’s depletable interest in the property, and the royalties as the measure of the depletable interest of those entitled to receive them. The respondent says, however, that under § 213 the gross production of the wells is respondent’s gross income from the property, must be reported as such, and § 204 (c) (2) permits him an allowance of 27^ per cent, thereof. It must follow that the royalties (one-fourth of the same gross production) are gross income to those receiving them and are subject to depletion at the rate of 27Vk per cent. The result would be a total allowance of 27^ per cent, of five-fourths of the total production. Certainly this would not be a single allowance, apportioned between lessor and lessee. And we think § 204 (c) (2) does not require such a result. The words used are, “ the allowance for depletion shall be 27^ per centum of the gross income from the property during the taxable year.” Is the italicized phrase synonymous with the taxpayer’s gross income as defined in § 213? It cannot be if “ property ” signifies the tract of land in all its uses, others as well as the extraction of oil and gas. Darby-Lynde Co. v. HELVERING v. TWIN BELL SYNDICATE. 321 312 Opinion of the Court. Alexander, 51 F. (2d) 56. The phrase, we think, points only to the gross income from oil and gas. Compare United States v. Dakota-Montana Oil Co., 288 U. S. 459, 461; Greensboro Gas Co. v. Commissioner, 30 B. T. A. 1361. So restricted, it presents no difficulty where the owner of the land is also the operator, and there is none where the lessee turns over royalty oil in kind to the lessor, for the retained oil, in that case, is the base for the lessee’s computation of depletion and the royalty oil that for the lessor’s. We think Congress did not intend a different result where, as here, the lessee sells all the oil and pays over the royalty in the form of cash. At all events, as the section must be read in the light of the requirement of apportionment of a single depletion allowance, we are unable to say that the Commissioner erred in holding that for the purpose of computation “ gross income from the property ” meant gross income from production less the amounts which the taxpayer was obliged to pay as royalties. The apportionment gives respondent 27^2 per cent, of the gross income from production which it had the right to retain and the assignor and lessor respectively 27y2 per cent, of the royalties they receive. Such an apportionment has regard to the economic interest of each of the parties entitled to participate in the depletion allowance. Compare Palmer v. Bender, 287 U. S. 551, 558. The respondent insists that, so applied, the section may work unjust and unequal results; but it is to be remarked that this is likely to be so wherever a rule of thumb is applied without a detailed examination of the facts affecting each taxpayer. No doubt, as the petitioner points out, equally illogical results might ensue from the application of the section as the respondent construes it. And it is also to be remembered that depletion upon cost or March 1, 1913 value is optional with the taxpayer, if that procedure is more favorable to him. 89995°—35-21 322 OCTOBER TERM, 1934. Syllabus. 293 U. S. Finally, the respondent says that in the Revenue Act of 193212 the section corresponding to 204 (c) (2) was amended so as to authorize such a procedure as the petitioner adopted in this case, and therefore the section as it stood in the Act of 1926 could not have supported the Commissioner’s ruling. The amendment alters the section to read: 13 “ In the case of oil and gas wells the allowance for depletion shall be 27^ per centum of the gross income from the property during the taxable year, excluding from such gross income an amount equal to any rents or royalties paid or incurred by the taxpayer in respect of the property. . . .” The petitioner says that the amendment was merely clarifying in purpose and declaratory of the existing law as administered. We think this is so. When it was offered the chairman of the committee having the bill in charge so stated,14 and the conference report is to the same effect.15 The judgment is Reversed. WILLIAM E. HERRING v. COMMISSIONER OF INTERNAL REVENUE.* CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 176. Argued November 16, 1934.—Decided December 3, 1934. 1. The percentage deduction from gross income permitted by § 204 (c) (2) of the Revenue Act of 1926 as an allowance for depletion in the case of oil and gas wells, is applicable to advance royalties and bonuses received by a lessor upon the execution of an oil and 12 47 Stat. 169. 13 Section 114 (3), 47 Stat. 202. 14 Cong. Record, Vol. 75, Part 10, pp. 11629-11630. 15 House Conference Report No. 1492, 72d Cong., 1st Sess., p. 14. * Together with No. 177, Eula Day Herring n. Commissioner, certiorari to the Circuit Court of Appeals for the Fifth Circuit, HERRING v. COMMISSIONER. 323 322 Opinion of the Court. gas mining lease, even though there were no wells on the property and no production of oil or gas during the taxable year. Pp. 324, 327. 2. The reenactment of a statutory provision without alteration indicates legislative approval of administrative regulations theretofore adopted and applied. P. 325. 70 F. (2d) 785, reversed. Certiorari * to review judgments of the Circuit Court of Appeals in two income tax cases, wherein decisions of the Board of Tax Appeals sustaining the action of the Commissioner in disallowing claimed deductions for depletion were affirmed. Mr. Robert Ash, with whom Mr. Leslie E. Martlew was on the brief, for petitioners. Assistant to the Attorney General Stanley, with whom Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. Sewall Key and J. Louis Monarch were on the brief, for respondent. Mr. Justice Roberts delivered the opinion of the Court. The petitioners are husband and wife and the income which gives rise to this controversy is derived from community property. We are to determine whether, in computing net income under the Revenue Act of 1926, they were entitled to deduct from advance royalty or bonus received upon the execution of oil and gas leases the statutory percentage allowance for depletion, it appearing that there was no production when the leases were made, or at any time within the taxable year. The petitioners’ community estate held a half interest in a partnership whose principal business was cattle raising. The firm owned a tract near Amarillo, Texas. In 1926 it leased portions of this land for the purpose of * See Table of Cases Reported in this volume. 324 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. mining and operating for oil and gas. In that year the lessees paid an aggregate of $683,793.75 as advance royalties or bonuses, and were obligated to pay additional royalties of one-eighth of the product or its value as oil and gas were extracted. The leases were for terms of five years and so long thereafter as oil and gas should be produced. When the instruments were executed there was no oil well within three and a half miles of the demised land. The lessors had no right to compel the drilling of wells and none were put down during 1926. In 1930 four were drilled which proved to be commercial gas wells, all made a showing of oil, and one produced from eight to ten barrels a day. In their tax returns for 1926 the petitioners each claimed a pro rata share of a depletion allowance of $188,043.28, being 27% per cent, of the bonus payments to the partnership. The Commissioner disallowed the claim. The Board of Tax Appeals sustained his decision. The Circuit Court of Appeals affirmed the Board’s action.1 We granted certiorari.1 2 The pertinent sections of the Revenue Act of 1926 are 214 (a) (9) granting a reasonable deduction for depletion in the case of oil and gas wells, and 204 (c) (2) permitting computation of the allowance at 27% per centum of the gross income from the property.3 A bonus is not proceeds from the sale of property, but payment in advance for oil and gas to be extracted, and is therefore taxable income.4 As such it is a part of the “ gross income from the property ” as the phrase is used in § 204 (c) (2) to designate the base for the application of the percentage deduction. From these premises the 170 F. (2d) 785. 2 Post, p. 541. 3 44 Stat. 9,14, 26-27; U. S. C. App. Tit. 26, §§ 935, 955. 4 Burnet v. H ar met, 287 U. S. 103; Murphy Oil Co. v. Burnet, id. 299; Bankers Pocahontas Coal Co. v. Burnet, id. 308. HERRING v. COMMISSIONER. 325 322 Opinion of the Court. petitioners argue that the bonus received does not lose its character as income subject to depletion, merely because it happens that in the year of receipt there was no production of the depletable asset. The respondent replies that the allowance for depletion is a matter of grace, not of right, and that the act fails to grant any allowance on income such as that here involved. The argument is that in both the relevant sections of the act, the statute says “ in the case of . . . oil and gas wells ” and this expression necessarily excludes a case where no well exists. In support of this asserted statutory exclusion it is urged that a depletion allowance is essentially and exclusively reimbursement for wastage or exhaustion of assets, and Congress could not have meant to permit an allowance in any year in which there was no extraction of oil or gas, and no practical assurance of production in the future. We think these arguments cannot prevail to defeat the petitioners’ right to the deduction. Each of the Revenue Acts, 1916 to 1934 inclusive, has granted as a deduction from gross income a reasonable allowance for depletion “ in the case of . . . oil and gas wells.”5 The regulations under the 1926 Act and its predecessors dealing with cost depletion treated bonus or advanced royalty as subject to depletion,6 and these have been approved by reenactment of the statutory provision without alteration. That, under the law and the regulations, a lessor is entitled to a depletion allowance on bonus payments is settled by the decisions of this court.7 8 It 5 See United States v. Dakota-Montana OU Co., 288 U. S. 459; Helvering v. Twin Bell Oil Syndicate, No. 170, decided this day, ante, p. 3,12; R. A. 1932, § 23 (1) 47 Stat. 169, 181; R. A. 1934, § 23 (m) 48 Stat., 680, 689. 8 Murphy Oil Co. v. Burnet, 287 U. S. 299, 303. 'Burnet v. Harmel, supra; Murphy Oil Co. v. Burnet, supra; Balmer v, Bender, 287 U. S. 551. 326 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. has never been held here that the existence of a well conditioned the right to depletion. Nor, until recently, has the Treasury so ruled. After the decision of the Murphy Oil Co. case, supra, there arose a doubt as to how the flat percentage allowance first permitted by the Act of 1926 should be applied to bonus payments. In answer to a request, the General Counsel of the Bureau of Internal Revenue rendered an opinion8 in which he said: “ The four situations to which attention is called are as follows: “(1) No oil being produced when the bonus was received, but future production practically assured because of nearby wells and geological indications. “(2) No oil being produced when the bonus wasi received, but property became productive within the taxable year. “(3) No oil being produced when the bonus was received, and not more than a speculative prospect of future oil production at that time, but property is now known to have become productive after the taxable year. “(4) Property has never become productive.” and held that depletion should be allowed in situations (1) and (2) and denied in situations (3) and (4). In the present case the Board of Tax Appeals followed an earlier decision in which it had referred to portions of the General Counsel’s opinion with disapproval, but found it unnecessary to decide whether it was sound.8 9 In that case no well had been drilled on the leased property within the taxable year in which the bonus was paid, and the Board, saying that depletion could not be allowed except as an incident of actual production, refused the claimed percentage deduction. In a later case10 8 G. C. M. 11384, XII-1 Cumulative Bulletin 64. 9 Glide v. Commissioner, 27 B. T. A. 1264. See also Umsted v Commissioner, 28 B. T. A. 176, affirmed 72 F. (2d) 328. 10 Sneed v. Commissioner, 30 B. T. A. 1121. 322 HERRING v. COMMISSIONER. Opinion of the Court. 327 where it appeared the whole of the petitioner’s land was proved oil and gas territory and a gas well had been drilled in a prior year and shut in for lack of pipe-line facilities, so that there was no actual production during the taxable year in which the bonus was received, the Board overruled the taxpayer’s claim for depletion, adhering to its position that production during the year was prerequisite to any allowance and refusing to follow General Counsel’s opinion. The situation presented by the administrative rulings is this: A bonus is not a receipt from a sale of a capital asset and may not be returned as such; it is income in the year received; if any depletion is to be allowed against the receipt, the allowance must be claimed for the year of receipt; it cannot be allowed in any later year;11 if the taxpayer computes depletion upon the basis of cost or March 1, 1913 value he may deduct depletion from a bonus payment, irrespective of the sinking of a well or the production of any oil or gas;11 11 12 if, however, he elects to avail himself of the alternative method of computing deduction at a per cent, of gross income, though the nature of the deduction is unchanged,13 he may not have any unless there be production within the taxable year; if the production be but trifling he may take a full percentage deduction upon the entire bonus, however disproportionate the allowance to the actual extraction of oil during the year. To condition the allowance on actual production, however small, or the imminent probability of production, and to deal in refinements as to the degree of probability of future production, is in many cases to deny any deduction where the taxpayer elects to compute it under 204 (c) (2), flat percentage of gross income from 11 Compare Burnet v. Thompson Oil & Gas Co., 283 U. 8. 301, 306. 12 See the regulations cited in Murphy Oil Co. v. Burnet, supra, at p. 303. 13 United States v. Dakota-Montana Oil Co., supra, at p. 467. 328 OCTOBER TERM, 1934. Syllabus. 293 U. S. the property, and permit it where he elects to compute it under 204 (c), on the basis of cost. But the nature and the purpose of the allowance is the same in both cases, and we find neither statutory authority nor logical justification for withholding it in the one and granting it in the other; much less for making the decision turn upon the circumstance that no production is obtained within the year in which the bonus is paid. As to income tax liability in the year of termination of the lease, on account of bonus paid at the execution of the lease, if no mineral has then been extracted, we express no opinion. The judgments are Reversed. DAVIS v. AETNA ACCEPTANCE CO. CERTIORARI TO THE APPELLATE COURT OF ILLINOIS, FIRST DISTRICT. No. 68. Argued November 9, 1934.—Decided December 3, 1934. 1. A creditor to whom a bankrupt owes money on a promissory note and against whom the bankrupt has committed an act of conversion by an unauthorized sale of personal property mortgaged to secure the note, may prove on the note, “ a fixed liability as evidenced by an instrument in writing,” Bankruptcy Act, § 63 (1), or may waive the tort and prove on the implied assumpsit, § 63 (4); but he cannot escape the discharge by electing to ignore the bankruptcy proceedings and suing on the tort. P. 331. 2. Section 17 (2) of the Bankruptcy Act, which excepts from discharge liabilities for “ willful and malicious injuries ” to the property of another, does not embrace a technical conversion, committed against the mortgagee of personal property by the mortgagor in possession, by an unauthorized sale, if the act was not in fact wilful or malicious but done innocently in the honest though mistaken belief that authority to sell existed. P. 331. 3. Section 17 (4) of the Bankruptcy Act, which excepts from discharge liabilities of a bankrupt created by his fraud, embezzlement, etc., while acting in any “ fiduciary capacity,” refers to strict trusts, DAVIS v. AETNA ACCEPTANCE CO. 329 328 Opinion of the Court. existing before the wrongs creating the excepted liabilities are committed, and not to trusts ex maleficio arising from the wrongs themselves. P. 333. 4. A dealer in automobiles purchased a car by means of a loan of money, to secure which he delivered to the lender his promissory note for the amount borrowed, a chattel mortgage covering the car, a “ trust receipt ” agreeing to hold the car as the property of the lender for the purpose of storage, and not to sell, pledge or otherwise dispose of it without the lender’s consent in writing, and, finally, a bill of sale, absolute in form. Held: That the transaction amounted merely to a mortgage for the security of the loan with a covenant by the mortgagor not to sell without the mortgagee’s consent, and did not constitute the former a fiduciary for the latter within the meaning of § 17 (4) of the Bankruptcy Act. P. 334. 273 Ill. App. 628, reversed. Certiorari * to review the affirmance of a judgment recovered by the Acceptance Company against Davis in an action of trover counting on the sale of a mortgaged automobile. Davis’s special plea of a discharge in bankruptcy was overruled. The Supreme Court of Illinois refused leave to appeal. Mr. Franklin D. Trueblood, with whom Messrs. Edward A. Zimmerman and George A. Edwards were on the brief, for petitioner. Mr. William S. Kleinman for respondent. Mr. Justice Cardozo delivered the opinion of the Court. A discharge in bankruptcy, pleaded as a defense to a declaration in trover for the conversion of a chattel, has been ruled by the courts below not to constitute a bar. The question is whether upon the evidence and the findings the bar should have been upheld. * See Table of Cases Reported in this volume. 330 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. The petitioner was a dealer in automobiles, selling them at retail and maintaining a salesroom where his wares were displayed. To put himself in funds for the acquisition of the cars, he obtained loans from the respondent, the Aetna Acceptance Company, in thirty-five or more ¡transactions. In particular he borrowed $1,181.87 on July 10, 1929, procuring title thereby to an Auburn sedan. This was 90% of the cost of the car, the residue of the price being paid out of his own money. At once upon receipt of the sedan, he delivered to the respondent a set of four papers; a promissory note for $1,181.87 to the order of the respondent payable in sixty days; a chattel mortgage covering the automobile and securing payment of the note; a trust receipt, acknowledging receipt of the automobile, and agreeing to hold it as the property of the respondent for the purpose of storage, and not to sell, pledge or otherwise dispose of it except upon consent in writing; and finally a bill of sale, absolute in form. On August 3, 1929, the automobile, then on exhibit in the petitioner’s showroom, was sold by one of his salesmen, and thereupon or soon afterwards petitioner received the price. There is a stipulation that the sale was made without concealment and in the ordinary course of business, though without written consent. According to the petitioner’s testimony, notice of the transaction was given the same day to one of the respondent’s officers. There is also testimony tending to support the inference that on many other occasions cars held upon like terms had been sold without express consent and the proceeds accounted for thereafter. On this occasion the petitioner promised to make prompt remittance of a check, subject to an offset or credit growing out of other dealings. He did not keep his promise. Instead, he filed a petition in bankruptcy on September 13, 1929, obtaining later his discharge after duly listing the respondent in his schedule of creditors. 328 DAVIS v. AETNA ACCEPTANCE CO. 331 Opinion of the Court. The filing of that petition was followed by this action for conversion. The trial judge, overruling the special plea of a discharge, gave judgment in favor of the respondent for damages and costs. The Illinois Appellate Court affirmed. There was a refusal of leave to appeal to the Supreme Court of the State, permission being requisite because of the amount involved. The case is here on certiorari. The effect of a discharge in bankruptcy is to “ release a bankrupt from all of his provable debts,” with excepted liabilities enumerated in the statute. Bankruptcy Act, §17; 11 U. S. C. §35. There is no dispute that the respondent had a provable debt. It might have proved upon the note, “ a fixed liability as evidenced by ... an instrument in writing.” Bankruptcy Act, § 63 (1); 11 U. S. C. § 103a. If its grievance was the sale, it might have proved “ upon a contract, express or implied,” § 63 (4), waiving the tort and standing upon the implied assumpsit. Crawford v. Burke, 195 U. S. 176, 193; Tindle v. Birkett, 205 U. S. 183. What it did is not decisive. Crawford v. Burke, supra; Tindle v. Birkett, supra-Enough that a method of proof had been provided to be used at its election. The debt being provable, the next inquiry must be whether the liability back of it is within one of the excepted classes. For present purposes, only two of the exceptions, § 17 (2) and (4), will have to be considered. The others by concession have no relation to this case. Subdivision 2 excludes from the release “ liabilities for . . . willful and malicious injuries to the person or property of another.” Subdivision 4 excludes the liabilities of a bankrupt “ created by his fraud, embezzlement, misappropriation or defalcation while acting as an officer or in any fiduciary capacity.” 1. The respondent contends that the petitioner was liable for a wilful and malicious injury to the property 332 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. of another as the result of the sale and conversion of the car in his possession. There is no doubt that an act of conversion, if wilful and malicious, is an injury to property within the scope of this exception. Such a case was McIntyre v. Kavanaugh, 242 U. S. 138, where the wrong was unexcused and wanton. But a wilful and malicious injury does not follow as of course from every act of conversion, without reference to the circumstances. There may be a conversion which is innocent or technical, an unauthorized assumption of dominion without wilfulness or malice. Boyce v. Brockway, 31 N. Y. 490, 493; Laverty v. Snethen, 68 N. Y. 522, 527; Wood v. Fisk, 215 N. Y. 233, 239; 109 N. E. 177; Stanley v. Gaylord, 1 Cush. (Mass.) 536, 550; Compau v. Bemis, 35 Ill. App. 37; In re De Lauro, 1 F. Supp. 678, 679. There may be an honest, but mistaken belief, engendered by a course of dealing, that powers have been enlarged or incapacities removed. In these and like cases, what is done is a tort, but not a wilful and malicious one. Turning to the findings here, we see that wilfulness and malice have been unmistakably excluded. Cf. In re Dixon, 21 F. (2d) 565, 566; In re Burchfield, 31 F. (2d) 118, 119. The trial court made a special finding as follows: “ The court finds that the defendant in this case was not actuated by wilful, malicious or criminal intent in disposing of the car in question.” In these circumstances the respondent is not helped by the later and general finding that the petitioner was “ guilty of legal conversion of the property, as described in the count in trover.” The special controls the general, just as upon the verdict of a jury. Walker v. New Mexico & S. P. R. Co., 165 U. S. 593, 598; Victor-American Fuel Co. v. Peccarich, 209 Fed. 568, 571. Nothing in the judgment of the Illinois Appellate Court is at war with the exculpatory finding made upon the trial. The Appellate Court repeats the words of the 328 DAVIS v. AETNA ACCEPTANCE CO. 333 Opinion of the Court. trial judge without hint of disapproval. Its only comment is that under the law of Illinois malice and wrongful intent are not necessary constituents of a cause of action in trover. This, of course, is true, but though true, it is beside the mark. The discharge will prevail as against a showing of conversion without aggravated features. 2. The respondent contends that irrespective of wilfulness or malice, the petitioner is within the exception declared by subdivision 4, his liability arising, it is said, from his fraud or misappropriation while acting in a fiduciary capacity. The meaning of these words has been fixed by judicial construction for very nearly a century. Chapman v. Forsyth, 2 How. 202, decided in 1844, is a decision to the effect that within the meaning of a like provision in the Act of 1841, a factor does not act in a fiduciary capacity; the statute “ speaks of technical trusts, and not those which the law implies from the contract.” 2 How. at p. 208. The scope of the exception was to be limited accordingly. Through the intervening years that precept has been applied by this court in varied situations with unbroken continuity. Neal v. Clark, 95 U. S. 704; Hennequin v. Clews, 111 U. S. 676, 682; Noble v. Hammond, 129 U. S. 65, 68; Upshur v. Briscoe, 138 U. S. 365; Crawford v. Burke, supra; Tindle v. Birkett, supra. Cf. Cronan v. Cotting, 104 Mass. 245; Clair v. Colmes, 245 Mass. 281; 139 N. E. 519. It is "not enough that by the very act of wrongdoing out of which the contested debt arose, the bankrupt has become chargeable as a trustee ex maleficio. He must have been a trustee before the wrong and without reference thereto. In the words of Blatchford, J., “ The language would seem to apply only to a debt created by a person who was already a fiduciary when the debt was created.” Upshur v. Briscoe, supra, at p. 378. Was petitioner a trustee in that strict and narrow sense? 334 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. We think plainly he was not, though multiplicity of documents may obscure his relation if the probe is superficial. The only writing at all suggestive of a trust is the one that is characterized as a trust receipt. What effect would be given to it if it stood alone there is no occasion to consider. It does not stand alone, but is a member of a group which must be read with a collective meaning. The note, the chattel mortgage, the trust receipt and the bill of sale were made at the same time. We must view them all together. Clearly the respondent’s only interest in the car was as security for the debt; this is the central fact, the coordinating element, that unifies the whole transaction. The bill of sale may seem to make the creditor a purchaser; whatever its recitals, it is a mortgage in another form. Whittemore v. Fisher, 132 Ill. 243. The trust receipt may state that the debtor holds the car as the property of the creditor; in truth it is his own property, subject to a lien. Barchard v. Kohn, 157 Ill. 579, 585, 586; 41 N. E. 902. The substance of the transaction is this, and nothing more, that the mortgagor, a debtor, has bound himself by covenant not to sell the mortgaged chattel without the mortgagee’s approval. The resulting obligation is not turned into one arising from a trust because the parties to one of the documents have chosen to speak of it as a trust. Cf. In re Butts, 120 Fed. 966, 971; Bloomingdale n. Dreher, 31 F. (2d) 93. The relation would be no different if the duty had been stated in terms of covenant alone without descriptive epithet. A mortgagor in possession before condition broken is not a trustee for the mortgagee within the meaning of this statute, though he has charged himself with a duty to keep the security intact. Cf. Ten Eyck v. Craig, 62 N. Y. 406, 422. No question as to a cause of action arising from a conversion of the proceeds of the sale with wilfulness and MUTUAL LIFE CO. v. JOHNSON. 335 328 Syllabus. malice as distinguished from one arising from the conversion of the car itself is before us on this record. The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK v. JOHNSON, ADMINISTRATOR. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. No. 154. Argued November 15, 1934.—Decided December 3, 1934. A life insurance policy, issued in Virginia to a resident of that State, provided that if the insured, before attaining a certain age and while no premium was in default, should furnish the company due proof of his being totally and permanently disabled, the company would grant him specified monthly payments from receipt of such proof through the remainder of his lifetime as long as such disability continued, and would also, after receipt of such proof, waive payment of each premium as it thereafter became due during such disability. Before the expiration of a period of grace allowed for payment of a premium, the insured became totally and permanently disabled, both physically and mentally, to such an extent that he was unable to give notice to the company in advance of default, and thus procure the waiver called for by the policy. The disability persisted until his death. Held: 1. The contract is to be interpreted according to the law of Virginia where delivery was made. P. 339. 2. So interpreted, the right to have the premiums waived during the disability was not lost by the failure to give notice, caused by the disability. Id. 3. The question concerns merely the meaning implied in the words of a highly specialized condition, involving no rule of the law merchant or general principle of the law of insurance contracts; it is a doubtful one upon which the courts of the country are divided; and in deciding it, this Court (though it may have power to do otherwise) will be guided in its decision by the law of the State of the contract. P. 339. 70 F. (2d) 41, affirmed. 336 OCTOBER TERM, 1934. Opinion of the Court. 293 U.S. Certiorari * to review a judgment which reversed a judgment on a verdict directed by the District Court for the Insurance Company in an action on a life insurance policy. Mr. James C. Martin, with whom Mr. Frederick L. Allen was on the brief, for petitioner. Messrs. Burnett Miller and John S. Barbour for respondent. Mr. Justice Cardozo delivered the opinion of the Court. On May 16, 1930, the petitioner, the Mutual Life Insurance Company of New York, issued in Virginia to Benjamin F. Cooksey, who resided in that state, a policy of life insurance in the amount of $4,500 with disability benefits. Upon the face of the policy, it is provided that if the insured is totally and permanently disabled before the age of sixty, the company will pay him “ forty-five dollars monthly during such disability . . ., besides waiving premium payments, all upon conditions set forth in section 3.” The conditions thus incorporated by reference are these: “ If, before attaining the age of sixty years and while no premium on the policy is in default, the Insured shall furnish to the Company due proof that he is totally and permanently disabled,. . . the Company will grant the following benefits during the remaining lifetime of the Insured as long as such disability continues. Benefits (a) . . . The Company will pay a monthly income to the Insured of the amount stated on the first page hereof . . . beginning upon receipt of due proof of such disability . . . (b) Waiver of Premiums. The Company will also, after receipt of such due proof, waive payment of each premium as it thereafter becomes due during such * See Table of Cases Reported in this volume. MUTUAL LIFE CO. v. JOHNSON. 337 335 - Opinion of the Court. disability.” There is also a provision that the policy will be reinstated within six months after a default if proof is given within that time that at the date of the default the insured was totally disabled and has continuously remained so. A quarterly premium became payable under this policy upon November 16, 1931, subject, however, to a period of grace of thirty-one days, whereby the time for payment was extended until December 17. This premium was never paid by the insured, though all earlier premiums had been paid as they matured. On December 17, the date of the default, the insured, who was under sixty, was confined to his bed, a sufferer from chronic nephritis, which on January 20, 1932, resulted in his death. There is evidence by concession that as early as December 14, 1931, he was totally and permanently disabled, not only physically but mentally, to such an extent that he was unable to give notice to the insurer in advance of the default, and thus procure the waiver called for by the policy. The company takes the ground that because of the omission of that notice the default is unexcused and the policy has lapsed. In this action by the administrator the District Court upheld the company’s position, and directed a verdict for the defendant. The Court of Appeals for the Fourth Circuit reversed, and remanded the cause for trial. 70 F. (2d) 41. For the defendant it was argued that insanity is no more an excuse for the failure to give a notice that will cause the payment of the premiums to be waived than for the failure to make payment of the premiums when waiver is not a duty, either conditional or absolute. Cf. Klein v. Insurance Co., 104 U. S. 88. For the plaintiff it was argued that waiver having been promised, though subject to a condition as to notice, there must be a liberal construction of a requirement that is 89995°—35——22 338 OCTOBER TERM, 1934. Opinion of the Court. . 293 U. S. merely modal or procedural, and the insurer will not be deemed, in respect of matters of that order, to have exacted the impossible. The controversy is one as to which the courts of the country are arrayed in opposing camps. Supporting the petitioner’s view are New England Mutual Life Ins. Co. v. Reynolds, 217 Ala. 307; 116 So. 151; lannarelli v. Kansas City Life Ins. Co., 114 W. Va. 88; 171 S. E. 748; Smith n. Missouri State Life Ins. Co., 134 Kan. 426; 7 P. (2d) 65; Berry v. Lamar Life Ins. Co., 165 Miss. 405; 142 So. 445; 145 So. 887; Western & Southern Life Ins. Co. v. Smith, 41 Ohio App. 197; 180 N. E. 749; Reynolds v. Travelers’ Ins. Co., 176 Wash. 36; 28 P. (2d) 310; Dean v. Northwestern Mutual Life Ins. Co., 175 Ga. 321; 165 S. E. 235; Hall v. Acacia Mutual Life Assn., 164 Tenn. 93; 46 S. W. (2d) 56; Egan v. New York Life Ins. Co., QI F. (2d) 899. Cf. Courson v. New York Life Ins. Co., 295 Pa. 518; 145 Atl. 530; Whiteside v. North American Accident Ins. Co., 200 N. Y. 320; 93 N. E. 948. Bergholm v. Peoria Life Ins. Co., 284 U. S. 489, is not apposite, there being no evidence in that case of incapacity, physical or mental, to give the prescribed notice. Supporting the respondent’s view are Swann n. Atlantic Life Ins. Co., 156 Va. 852; 159 S. E. 192; Rhyne v. Jefferson Standard Life Ins. Co., 196 N. C. 717; 147 S. E. 6; 199 N. C. 419; 154 S. E. 749; Levan v. Metropolitan Life Ins. Co., 138 S. C. 253; 136 S. E. 304; Pfeiffer v. Missouri State Life Ins. Co., 174 Ark. 783; 297 S. W. 847; Reed v. Loyal Protective Assn., 154 Mich. 161; 117 N. W. 600; Marti n. Midwest Life Ins. Co., 108 Neb. 845; 189 N. W. 388; Roseberry v. American Benevolent Assn., 142 Mo. App. 552; 121 S. W. 785; Metropolitan Life Ins. Co., n. Carroll, 209 Ky. 522; 273 S. W. 54; Comstock n. Fraternal Accident Assn., 116 Wis. 382; 93 N. W. 22; Missouri State Life Ins. Co. v. Le Fevre, 10 S. W. (2d) (Tex. Civ. App.) 267. Cf. Trippe v. Provident Fund Society, 140 N. Y. 23; 35 N. E. 316; Insurance Com- MUTUAL LIFE CO. v. JOHNSON. 339 335 Opinion of the Court. panics v. Boykin, 12 Wall. 433, 436; Restatement of the Law of Contracts, American Law Institute, § 301 (4). The case is here on certiorari. We think the contract is to be interpreted in accordance with the law of Virginia where delivery was made. Northwestern Mutual Life Ins. Co. v. McCue, 223 U. S. 234; Equitable Life Assurance Society v. Clements, 140 U. S. 226; Scudder v. Union National Bank, 91 U. S. 406, 412, 413. As to the meaning and obligation of such a policy,, the highest court of the State has spoken in Swann v. Atlantic Life Ins. Co., supra, construing a provision substantially the same as the one in controversy here. The ruling there was that notice was excused by physical and mental incapacity to give it. “When the disability of the insured occurred while the policy was in force, he was entitled to have his premiums waived until his death, for his disability continued until his death. He had paid for this right, and to say that he should lose the benefit of his policy because he failed, through mental and physical incapacity, to present proofs would be harsh and unreasonable under the circumstances.” In this situation we are not under a duty to make a choice for ourselves between alternative constructions as if the courts of the place of the contract were silent or uncertain. Without suggesting an independent preference either one way or the other, we yield to the judges of Virginia expounding a Virginia policy and adjudging its effect. The case will not be complicated by a consideration of our power to pursue some other course. The summum jus of power, whatever it may be, will be subordinated at times to a benign and prudent comity. At least in cases of uncertainty we steer away from a collision between courts of state and nation when harmony can be attained without the sacrifice of ends of national importance. No question as to a rule of the law merchant is present in this case. Swift v. Tyson, 16 Pet. 1. 340 OCTOBER TERM, 1934. Syllabus. 293 U. S. No question is here as to any general principle of the law of contracts of insurance (Carpenter v. Providence Washington Ins. Co., 16 Pet. 495, 511; Aetna Life Ins. Co. v. Moore, 231 U. S. 543, 559), with consequences broader than those involved in the construction of a highly specialized condition. All that is here for our decision is the meaning, the tacit implications, of a particular set of words, which, as experience has shown, may yield a different answer to this reader and to that one. With choice so “ balanced with doubt,” we accept as our guide the law declared by the state where the contract had its being. Trainor Co. v. Aetna Casualty Co., 290 U. S. 47, 54, 55; Sim v. Edenborn, 242 U. S. 131, 135; Community Building Co. v. Maryland Casualty Co., 8 F. (2d) 678, 680; Fordson Coal Co. v. Kentucky River Coal Corp., 69 F. (2d) 131, 132. The judgment is Affirmed. UNITED STATES v. GUARANTY TRUST COMPANY OF NEW YORK. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 120. Argued November 13, 14, 1934.—Decided December 10, 1934. 1. By the law of the District of Columbia, a forged signature of the payee on a check is inoperative to pass to a subsequent bona fide holder for value, either the title to the instrument, or the right to enforce payment, or the right to retain the proceeds if payment is made in ignorance of the forgery. P. 345. 2. Under settled principles of conflict of laws, the validity of a transfer of a chattel brought into a country by consent of the owner, is governed by the law of that country; and this rule applies to negotiable instruments. P. 345. 3. The principle applies in the present case to a government check, drawn and payable in the District of Columbia, but which was U. S. v. GUARANTY TRUST CO. 341 340 Statement of the Case. mailed by the Government from the District to the payee at his residence in Yugoslavia, and was negotiated in that Kingdom. P. 346. 4. By the law of Yugoslavia, as stipulated in this case, the transferee of a check, who takes it in good faith and for value without notice that the endorsement of the payee’s name was forged or notice of other defect, and without negligence or fraud on his own part, acquires title to the instrument and the right to collect it and retain the proceeds. Held that a holder of a check acquired by transfer under these circumstances in Yugoslavia, had the right in this country to enforce payment and to retain the proceeds as against the drawer, although, by the law of the District of Columbia, where the check was drawn and made payable and was delivered by mailing, a forged endorsement is inoperative,— the check having been sent by the drawer to the payee in Yugoslavia with the presumed intention that it should be negotiated there according to the law of that country. P. 346. 5. An express guarantee of prior endorsements means no more than what is implied by every unrestricted endorsement, namely, that the endorsements were effective to give legal title and the right to enforce payment. P. 348. 6. A Treasury circular declared that the handling of Government checks by Reserve Banks should be “ subject to examination and payment by the Treasurer of the United States”; and a circular of a Reserve Bank declared that, as the Government exercised the right of returning at any time checks which, for any cause, were not considered good, the Bank, as fiscal agent, as a condition of receiving checks on the Treasury, reserved the right to charge back and return them unconditionally. Held that collection of a government check through the agency of the Bank with knowledge of these provisions does not imply consent that the Government may demand restitution irrespective of its obligation to make the payment. P. 349. 7. As against the United States, the rights of the holder of its checks drawn upon the Treasurer are the same as those accorded by commercial practice to the checks of private individuals. P. 350. 69 F. (2d) 799, affirmed. Certiorari * to review the reversal of a judgment recovered by the United States in an action for money paid * See Table of Cases Reported in this volume. 342 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. on a check bearing a forged endorsement of the payee’s name. Mr. Justin Miller, with whom Solicitor General Biggs, Assistant Attorney General Sweeney, and Messrs. Paul A. Sweeney and W. Marvin Smith were on the briefs, for the United States. Mr. Theodore Kiendl, with whom Mr. John W. Davis was on the brief, for the respondent. By leave of Court, Messrs. Edwin DeT. Bechtel and Malcolm S. McNeal Watts filed a brief as amici curiae, on behalf of the American Express Co. Mr. Justice Brandeis delivered the opinion of the Court. On September 5, 1929, the United States brought in the federal court for southern New York, this action to recover from the Guaranty Trust Company $160 with interest. That sum was claimed as damages resulting from the payment to the Trust Company, through the Federal Reserve Bank of New York acting as fiscal agent of the United States, of a check, payable to Louis Macakanja drawn on the Treasury of the United States by the disbursing clerk of the United States Veterans’ Bureau. The complaint alleged that the letter containing the check had been mailed to the payee in Yugoslavia; that neither the “ payee of said check nor any one on his behalf had ever received or endorsed the same ”; and that “ the letter containing the check was taken or received in Jugoslavia by some person other than the payee thereof, and that thereafter the name of Louis Macakanja was written on the back of the said check by some person other than the payee thereof, and by a person who was not authorized to sign the name of said payee and who had no right, title, or interest in and to said check, with pos- U. S. v. GUARANTY TRUST CO. 343 340 Opinion of the Court. session thereof, and no right or authority to receive, endorse, or dispose of the same.” The answer set up as a special defense that the “ check was negotiated and transferred in the Kingdom of Jugoslavia ”; that under its law “ upon the negotiation and transfer of a check every transferee, if he takes without actual notice of any alleged forgery or other defect, in the absence of fraud or gross negligence, obtains a good title to the instrument, even if the endorsement of the payee is forged, and acquires the right to collect and retain the proceeds ”; that “ each of the transferees of the check mentioned in the complaint gave valuable consideration and took without notice of any alleged forgery or other defect, and without fraud or negligence, and thereby obtained a good title to the instrument and acquired the right to collect and retain the proceeds”; and that the “ defendant under the law of Jugo-Slavia, duly obtained title to said check, as aforesaid, and duly collected and retained the proceeds.”1 1 The law of the Kingdom of Yugoslavia in reference to checks and bills of exchange, according to the stipulation, was in 1921, and still is, as follows: “ Upon the negotiation and transfer of a check or bill of exchange each transferee, endorsee, or holder thereof obtains a good title to the instrument and acquires the right to collect and retain the proceeds thereof, even though the endorsement of the payee is forged where “(a) The instrument purports to bear a chain or series of endorsements from the payee of the instrument to the transferee, holder or endorsee thereof; and “(b) The said transferee, holder or endorsee gives valuable consideration for the instrument; and “(c) The said transferee, holder or endorsee takes the instrument without actual notice of any forgery or other defect in the instrument and is not guilty of any fraud or gross negligence in taking the instrument. “ The law of Jugo-Slavia further provides that “(a) When an endorsement follows a blank endorsement there is a presumption of law that the person who executed the endorsement 344 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. The case was tried before a jury. The evidence consisted of an agreement as to facts and the cancelled check. The agreement recited, among other things, that the purported endorsement of the payee was a forgery, made in Yugoslavia; that on or about November 30, 1921, the check was transferred and delivered there to the “ Mer-kur” Bank; that the “Merkur” Bank duly endorsed the check and transferred it in Yugoslavia to the “ Sla-venska ” Bank; that the “ Slavenska ” Bank endorsed and transferred the check in Yugoslavia to the Guaranty Trust Company and forwarded it by mail; that each of these banks paid a valuable consideration, received the check in good faith, took it without notice of the forgery or other defect, and was not guilty of any fraud or negligence; that “the Treasurer of the United States upon receipt of said check paid the same by crediting the Federal Reserve Bank of New York with the amount”; that, in December, 1921, that Bank credited the Trust Company with the amount; that the United States first learned of the forgery on or about April 27, 1926; and that on June 1, 1926, it requested, through the Federal Reserve Bank, reclamation from the defendant, which was denied. The check, dated October 29, 1921, was payable to the order of “ Louis Macakanja, 37 Sasava Kot Glina, Z. P. Maja, Jugoslavia.” When presented for payment, it bore what purported to be his endorsement made in the presence of two witnesses and a certification by the Municipal Administration of Maja to the effect that “ the holder has acquired title to the instrument under the blank endorsement; and “(b) The transferee, holder or endorsee of the instrument is under no duty or obligation to investigate the genuineness of prior endorsements. “ Under the law of Jugo-Slavia, an endorser does not guarantee or warrant the genuineness of prior endorsements.” U. S. v. GUARANTY TRUST CO. 345 340 Opinion of the Court. of the check is identical with the beneficiary thereof ” and that the witnesses as well as the receiver of the money had subscribed the instrument. The check bore these further endorsements: “‘Merkur’ Banking and Exchange Business, Stanko Shon, Zagreb ”; “ Pay to the order of Guaranty Trust Co. of New York, New York City, N. Y. Slavenska Bank D. D. Zagreb”; also the stamp of the Guaranty Trust Co.: “ Previous Endorsements Guaranteed ”; and the stamp of the Federal Reserve Bank. Each party moved for a directed verdict. The District Court directed a verdict for the plaintiff in the sum of $160 with interest from June 1, 1926; and entered judgment for that amount. The Court of Appeals reversed the judgment, 69 F. (2d) 799. This Court granted certiorari. First. The check was both drawn and payable in the District of Columbia. By the law of the District a forged endorsement of the payee’s name is declared to be wholly inoperative.2 Ordinarily, a subsequent bona fide holder for value without notice of the forgery would acquire neither title to the instrument nor the right to enforce payment; and would acquire no right to retain the proceeds if payment were made in ignorance of the forgery. But under settled principles of conflict of laws, adopted by both federal and state courts, the validity of a transfer of a chattel brought into a country by the consent of the 2 Code of Laws of the District of Columbia, Title 22, § 24, and also § 42 of the New York Negotiable Instruments Law provides: “ Where a signature is forged or made without the authority of the person whose signature it purports to be it is wholly inoperative, and no right to retain the instrument, or to give a discharge therefor, or to enforce payment thereof against any party thereto can be acquired through or under such signature, unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority.” 346 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. owner is governed by its law; and that rule applies to negotiable instruments. Embiricos v. Anglo-Austrian Bank, [1905] 1 K. B. 677; Weissman v. Banque de Bruxelles, 254 N. Y. 488, 494; 173 N. E. 835. Compare Disconto-Gesellschaft v. United States Steel Corp., 267 U. S. 22, 28. See Queensboro Nat. Bank v. Kelly, 48 F. (2d) 574, 576. Here, the rule is particularly applicable; for the Government, having made the check payable to one therein described as resident in Yugoslavia and having mailed it to his Yugoslavia address, must be deemed to have intended that it should be negotiated there, according to the law of that country. It was thereby given something of the quality of a foreign bill; although technically the check was delivered within the District when mailed there. Compare Koechlin et de v. Kestenbaum Brothers, [1927] 1 K. B. 889; see Lorenzon, Conflict of Laws Relating to Bills and Notes, (1919) p. 135, n. 267. The law of Yugoslavia provides that the transferee in due course acquires, despite the forgery, not only “ a good title to the instrument,” but also “ the right to collect and retain the proceeds thereof.” As the Government sent the check to Yugoslavia and the forged endorsement and the transfers of the check were made there, its law governs the validity of the transfer; and the banks acquired, at least, a good title to the check.3 Second. The Government contends that although the title to the check may have passed from the payee to the Trust Company, it acquired, as against the drawer, no right either to enforce payment or to retain the proceeds paid. The argument is that, since the check was both drawn and payable within the District, the obligation 3 Compare McClintick v. Cummins, 3 McLean 158; Fed. Cas. 8,699; Dundas v. Bowler, 3 McLean 397; Fed. Cas. No. 4,141; Russell v. Grigsby, 168 Fed. 577, 580; rev. on other grounds, 222 U. S. 149. U. S. v. GUARANTY TRUST CO. 347 340 Opinion of the Court. arising therefrom is governed by its laws; that, under the law of the District the drawer agreed to pay the check only on the order of the payee; and that since there was no such order and the payment made was in ignorance of the forgery, the money may be recovered as having been paid under a mistake. The law of the District determines the formal and essential validity of the check, the interpretation of the contract, the incidents of the obligation. But the Trust Company does not attempt to enlarge or modify the obligation of the drawer as determined by the law of the District. The question presented is: Has the Trust Company, by acquiring title to the check, acquired the right to enforce the obligation which it represents. The enforcement does not contravene the public policy of the District. The question relates to the incidents of the transfer of title to a chattel; and, hence, is determined by the law of Yugoslavia. The Trust Company is not confronted with any procedural obstacle, like that presented in some jurisdictions where the transferee of a non-negotiable cause of action seeks to sue thereon in his own name. Compare Harper n. Butler, 2 Pet. 239, 240. Nor is the Trust Company confronted by a divergent public policy of the forum, which forbids its courts from applying the Yugoslavian law. Compare Bond n. Hume, 243 U. S. 15; Oscanyan n. Arms Co., 103 U. S. 261, 277. Indeed, the courts of New York, where this suit was brought, would doubtless give effect to the rule of the foreign law here relied on. Compare Weissman v. Banque de Bruxelles, 254 N. Y. 488,494; 173 N. E. 835. The Government argues that acquisition of the legal title to negotiable paper does not necessarily imply acquisition of a cause of action thereon. It is suggested that even an instrument properly endorsed by the payee so as to transfer the title may fail to confer any right to enforce the obligation of the maker, as where the cause of 348 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. action had been lost by a discharge in bankruptcy; and that when the title to the instrument is transferred to a bona fide holder for value without an endorsement, or after maturity, the transferree may fail to acquire a right to enforce payment, because such paper is subject to any defense open as against the payee. But those rules have no application here. The discharge in bankruptcy operates upon the obligation represented by the check regardless of who the holder may be. The transferee without endorsement, or after maturity, acquires the rights which the payee had ; and it is those rights only which the Trust Company asserts. To conclude that the forged endorsement was sufficient to pass legal title, but insufficient to transfer the right of the payee to collect the proceeds, would deprive the transfer of a title ” of all significance except as regards the right to retain a scrap of worthless paper.4 Third. The Government contends that irrespective of considerations discussed above, the Trust Company is liable because of its endorsement. The argument is that its endorsement, made when the check was presented for payment through the Federal Reserve Bank of New York, is an independent contract governed by the law of New York, Spies v. National City Bank, 174 N. Y. 222, 225; 66 N. E. 736; that, by the Negotiable Instruments Law of that State, the endorsement warrants, besides the title, the authenticity of penmanship of the payee or the authorization of the endorsement in his name;5 and that, if 4 Compare Texas v. White, 7 Wall. 700, 735; Meuer v. Phenix Nat. Bank, 94 App. Div. 331, 88 N. Y. S. 83; affd. 183 N. Y. 511, 76 N. E 1100; Peterson v. Swanson, 176 Minn. 246 ; 223 N. W. 287; Beneficial Loan Assn. v. HiUery, 95 N. J. L. 271, 276; 113 Ail. 324. 0 Negotiable Instruments Law of New York provides: § 116. Every endorser who indorses without qualification, warrants to all subsequent holders in due course: (1) The matters and things mentioned in subdivisions one, two and three of the next preceding section; and U. S. v. GUARANTY TRUST CO. 349 340 Opinion of the Court. there be doubt as to the meaning and effect of an endorsement under the law of New York, there can be no doubt as to the Trust Company’s obligation, because of the terms of its stamp: “Prior endorsements guaranteed.” The express guarantee of prior endorsements means no more than what is implied by every unrestricted endorsement; namely that the endorsements were effective to give to the holder a legal title and the right to enforce payment of the check. Fourth. The Government contends that it is entitled to recover because of exceptional rights conferred in express terms by regulations of the Treasury and of the Federal Reserve Bank of New York. A Treasury circular then in effect provided for the handling of Government checks by the Reserve Banks and branches “ subject to examination and payment by the Treasurer of the United States.” 6 A Reserve Bank circular recited: “ The Government has for many years exercised the right of returning at any time warrants and checks which for any cause have not been considered good, and the Federal Reserve Bank of New York as fiscal agent of the United States as a condition of receiving government warrants and checks on the Treasurer of the United States from member banks or through the New York Clearing House reserves the right to charge back any such item and return the same at any time unconditionally to the institution from which it was received.” 7 (2) That the instrument is at the time of his endorsement valid and subsisting. The “ matters and things ” in § 115 so referred to are: (1) That the instrument is genuine and in all respects what it purports to be; (2) That he has a good title to it; (3) That all prior parties had capacity to contract. 8 Treasury Department Circular No. 176. December 31, 1919. ’ Reserve Bank Circular No. 258. March 1, 1920. 350 OCTOBER TERM, 1934. Opinion of the Court. 293 U.S. The argument is that with knowledge of these regulations the check was presented by the Trust Company for payment through the Reserve Bank of New York, and sent by the Bank to the Treasurer of the United States; that the Treasurer paid the check by crediting the Reserve Bank with the amount, and the Reserve Bank so credited the Trust Company; that the Trust Company was not obliged to avail itself of the facilities of the Reserve Bank; and that having done so with full knowledge of the regulation, it consented that the Government might charge back any such item and return the same at any time unconditionally. Closter National Bank v. Federal Reserve Bank, 285 Fed. 138, 140, is cited as establishing this proposition. And it is suggested, that, since the rule there declared is controlling, no occasion exists for deciding the question of conflict of laws presented by the petition for certiorari. The rule declared in the Closter case has no application here.8 That case dealt solely with the relation between the holder of the check and the collecting agency employed. As against the United States, the rights of the holder of its checks drawn upon the Treasurer are the same as those accorded by commercial practice to the checks of private individuals. Compare United States v. National Exchange Bank, 270 U. S. 527, 534; Lynch v. United States, 292 U. S. 571, 579. 8 The United States was not a party to that litigation. The Closter Bank sued the Reserve Bank, collecting agent, for the proceeds of a check. The court held that it was a term of the employment that the Reserve Bank might charge back any amount paid on a check if the Government refused final payment; and that hence it was unnecessary for the Reserve Bank to prove that the check in question was forged: “ By the terms of the collecting agreement under which the defendant in error performed the service, the collection agent had the right, if it acted in good faith, to charge back the item to the plaintiff in error’s account, without the necessity of establishing forgery or alteration of the warrant.” McLaughlin v. lumber co. 351 340 Syllabus. Moreover, the Government expressly disclaimed the assertion of a preferred position.9 Additional reasons are suggested for affirming the judgment of the Court of Appeals: That the Government cannot recover on the guaranty of prior endorsements, because it has failed to show damage from the alleged breach. That it cannot recover the money as having been paid under a mistake, because it has failed to show “ that the defendant cannot retain the money with good conscience.” Compare United States v. Chase National Bank, 252 U. S. 485, 495. That recovery must be denied, regardless of the foreign law, because on the agreed facts, the Government is, under § 24 of the Code of the District, "precluded from setting up the forgery.” Compare Hortsman v. Henshaw, 11 How. 177. Since we sustain the special defense based on the law of Yugoslavia, we have no occasion to pass on these matters. Affirmed. McLaughlin, collector of internal revenue, v. PACIFIC LUMBER CO. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 125. Argued November 12, 13, 1934.—Decided December 10, 1934. 1. In an action at law tried without a jury, where both parties move at the close for judgment on the evidence and judgment is rendered for the plaintiff, the question whether the evidence was sufficient to warrant the judgment is a reviewable question of law. P. 355. 2. Consolidated income tax returns of affiliated corporations must truly reflect taxable income of the unitary business and may not 9 See letter of Jan. 12, 1922, by L. P. Gilbert, Jr., Under Secretary, to The Guaranty Trust Company. 352 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. be employed to enable the taxpayer to use more than once the same losses for reduction of income. P. 355. 3. As ground for an action by a corporation to recover, the amount of an income tax assessed on a consolidated return and voluntarily paid by the plaintiff, the plaintiff claimed that losses that accrued to it during the tax year by reason of the liquidation in that year of one of its subsidiaries, viz., the loss of the plaintiff’s investment in the subsidiary’s stock and of money advanced to it, amounting, above all credits, to more than the amount of the tax, should have been deducted in the tax computation. Held, that the burden was upon the plaintiff to prove that the losses claimed were not the reflections of losses suffered by the subsidiary and which had been allowed for in the returns and tax assessments for that and prior years; and that, upon the evidence, the burden was not sustained, and the defendant’s motion for judgment in his favor should have been granted. P. 356. 66 F. (2d) 895, reversed. Certiorari * to review a judgment affirming a judgment against the Collector in an action to recover an alleged overpayment of income tax. Solicitor General Biggs, with whom Assistant Attorney General Wideman and Messrs. Sewall Key and Joseph M. Jones were on the brief, for petitioner. Mr. Claude R. Branch, with whom Messrs. F. D. Madison and Felix T. Smith were on the brief, for respondent. Mr. Justice Butler delivered the opinion of the Court. Respondent brought this action, in the district court for northern California, to recover $143,122.23 it had paid as income tax for 1923. The complaint alleges facts upon which respondent claims to have Seen overassessed in that sum as a result of failure to take into account deductible losses. One loss ($479,625) resulted from the liquidation in 1923 of A. F. Thane & Company, a wholly owned subsidiary. The other ($953,134.49) was the indebtedness * See Table of Cases Reported in this volume. McLaughlin v. lumber co. 353 351 Opinion of the Court. of that company to respondent, ascertained to be worthless and charged off by the latter in that year. Petitioner’s answer put in issue some, and admitted other, allegations of the complaint. The parties stipulated for trial by the court without a jury. The evidence consisted of an agreed statement of facts and the separate and consolidated tax returns for 1920 to 1923, inclusive, of respondent, Thane & Company, and Pacific Lumber Company of Illinois. At the close of the evidence each party moved for judgment. The court denied petitioner’s motion, granted that of respondent and gave it judgment in the amount sued for with interest and costs. The Circuit Court of Appeals affirmed. 66 F. (2d) 895. The allegations of the complaint admitted by the answer, the agreed statement and the tax returns show: During 1918, A. F. Thane & Company had outstanding 600 shares of capital stock of the par value of $100 each; respondent owned 540, for which it had paid $31,500, and A. F. Thane owned 60. In 1920, the company increased its capital to 5,000 shares, respondent subscribed and paid to the company par value, $100 per share, for 3,960, and Thane took the remaining 440 shares. In 1921, respondent bought these shares for $52,125, and so became the owner of all, for which it had paid $479,625. At the close of 1923, Thane & Company was dissolved and its remaining assets were transferred to respondent. Between March 17, 1921, and the end of 1923, respondent had advanced to it and paid for its account large sums. After deducting the amount repaid plus the value of the assets transferred at liquidation, Thane & Company was indebted to respondent in the sum of $953,134.49. Before the end of 1923, respondent charged this off as a debt ascertained to be worthless in that year. From 1920 to 1923, inclusive, respondent, Thane & Company and the Pacific Lumber Company of Illinois made separate income tax returns and also consolidated 89995°—35----23 354 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. returns as affiliated corporations. Their income taxes were paid on the latter basis. In each year respondent had a large net income and Thane & Company lost heavily; the Pacific Lumber Company of Illinois lost in the first and had relatively small net income in each of the other years.1 Their separate returns for 1923 respectively showed net income of $1,379,494.78, net loss of $229,942.15, and net income of $8,809.83. The consolidated return reported net income of $1,158,362.46, on which respondent paid $144,795.31 as the total income tax. Upon examination and audit in the Bureau, a greater deduction was made for depreciation than was claimed in the return, overpayment was found in the amount of $1,673.08, and that was refunded. Insisting that the losses here in question were deductible, respondent filed a claim for refund of the balance, $143,122.23. The letter of the deputy commissioner notifying it that the claim would be rejected stated that, since Thane & Company was affiliated with respondent and allowance was made, in computing consolidated net income, for all deductible losses sustained by the subsidiary during the several years, a further deduction reflect- lrThe tabulation is: 1920 1921 1922 1923 Pacific Lumber Company of Maine, Respondent A. F. Thane & Company Pacific Lumber Company of Illinois $2,262,959.39 *443,821.95 *23,052. 35 $379,624. 88 *548,166.82 18,314.97 $1,266,450. 51 *344,791.49 31,198.03 $1,379,494.78 *229,942.15 8,809.83 Consolidated 1,796,085.09 *150,226.97 952,857.05 1,158,362.46 * Net loss. The consolidated net loss of $150,226.97 for 1921 was allowed as a deduction from the consolidated net income for 1922, resulting in a consolidated net income for the latter year of $802,630.08, upon which the tax was paid. 351 McLaughlin v. lumber co. Opinion of the Court. 355 ing directly or indirectly the same losses was not allowable. And the claim was disallowed. Petitioner’s motion, at the close of the evidence, for judgment in his favor raised the question of law whether the evidence is sufficient to warrant judgment for respondent; and the trial court’s decision of that question was reviewable in the Circuit Court of Appeals and is here for decision. United States v. Jefferson Electric Co., 291 U. S. 386, 407. Section 240 (a) of the Revenue Act of 1921 declares: “ That corporations which are affiliated within the meaning of this section may . . . make separate returns or, under regulations prescribed . . . make a consolidated return of net income ... in which case the taxes thereunder shall be computed and determined upon the basis of such return.” 42 Stat. 227, 260. Treasury Regulations 62 provide: “ Consolidated returns are based upon the principle of levying the tax according to the true net income and invested capital of a single enterprise . . . [Art. 631.] Subject ... to the elimination of intercompany transactions . . . the consolidated taxable net income shall be the combined net income of the several corporations consolidated.” Art. 636. If not inconsistent with its obligation under the statute accurately to report taxable income for 1923, respondent may deduct the losses it sustained in that year as the result of its investment in the stock of Thane & Company and its advances to or for that company. Burnet v. Aluminum Goods Co., 287 U. S. 544, 550. But a consolidated return must truly reflect taxable income of the unitary business, and consequently it may not be employed to enable the taxpayer to use more than once the same losses for reduction of income. Losses of Thane & Company that were subtracted from respondent’s income are not directly or indirectly again deductible. Handy & Har- 356 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. man v. Burnet, 284 U. S. 136, 140. United States v. Ludey, 274 U. S. 295, 301. Ilf eld Co. v. Hernandez, 292 U. S. 62, 68. Respondent voluntarily paid the tax. When disallowing the claim for refund, the Bureau notified it that losses in 1923 reflecting other deductions would not be allowed. Presumably respondent had within its control the records showing facts that would fully disclose the relations between such losses and those reported in the returns of Thane & Company. The Circuit Court of Appeals states that there is no evidence of double deduction or any specific instance of such deduction. But that absence of proof does not support the judgment. Respondent had the affirmative of the issue, and the burden was on it to show that allowance of the deduction claimed would not amount to twice subtracting the same loss. That is an essential fact which cannot be assumed. Respondent may not rely on mere assertion or speculation. Cochran v. United States, 254 U. S. 387, 393. Fidelity Title <& Trust Co. v. United States, 259 U. S. 304, 306. United States v. Anderson, 269 U. S. 422, 443. Compania General v. Collector, 279 U. S. 306,310. United States v. Jefferson Electric Co., supra, p. 400. The evidence not only fails to establish that essential fact, but is little, if any, less than enough to show that the allowance of the deductions claimed would be a second use of the same losses. The details, given in the tabular statement printed in the margin of an earlier page of this opinion, show that the losses of Thane & Company, which operated through consolidated returns to reduce respondent’s income taxed, amount in all to more than respondent’s asserted 1923 losses and to more than its income taxed in that year. Thane & Company’s statements attached to its separate tax returns show liabilities in excess of assets in each year of the affiliated period, increasing annually until, by the end of 1923, the deficit had become $1,453,134.49. Prior to 1920, Thane MARINE BANK v. KALT-ZIMMERS CO. 357 351 Syllabus. & Company had outstanding only $60,000 of capital stock, 90 per cent, of which was acquired by respondent for less than par. During the affiliated period, its deductible losses amounted to more than three times its capital. While it is conceivable that, as suggested by respondent, the losses do not necessarily indicate that thereby Thane & Company became unable to pay its debts, the circumstances tend strongly, to indicate that they did cause its breakdown, resulting in respondent’s 1923 losses here claimed. If these losses did not cause, or are not reflected in, those sustained by respondent in 1923 as the result of its investment in and advances to that company, it reasonably may be presumed that respondent would have shown that fact. The trial court should have granted petitioner’s motion for judgment in his favor. Reversed. MARINE NATIONAL EXCHANGE BANK OF MILWAUKEE et al. v. KALT-ZIMMERS MANUFACTURING CO. ET AL. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No. 148. Argued November 14, 15, 1934.—Decided December 10, 1934. 1. Bonds issued in Wisconsin payable to bearer recited that they were secured by a deed of trust to a named trustee, “ to which deed of trust reference is hereby made with the same effect as though recited at length herein, for the description of the property mortgaged, the nature and extent of the security, the rights of the holders of the bonds, and the terms and conditions upon which said bonds are issued, held and secured, and may, before their fixed maturities, be declared at once due and payable, and the manner of prepayment before maturity.” The Supreme Court of Wisconsin, construing the Wisconsin negotiable instruments statute, decided that the reference did not make the bonds non-negotiable. 358 293 U.S. OCTOBER TERM, 1934. Argument for Petitioners. Held, that the construction is binding in the federal courts, though the statute may have been intended to be declaratory of the rule at common law. Bums Mortgage Co. n. Fried, 292 U. S. 487. P. 363. 2. Under the Wisconsin negotiable instruments Act, as construed by the Supreme Court of the State, notice of facts tending to put a cautious buyer upon inquiry will not defeat the title of the holder of negotiable paper, if in truth there was neither actual knowledge of an infirmity nor a conscious joinder in a fraud. P. 364. 3. Under the Wisconsin negotiable instruments Act, as construed by the Supreme Court of Wisconsin, the pledgee of a negotiable bond, payable to bearer, who knows from a recital on the face of the bond that the pledgor—pledging it for his own indebtedness—is the trustee under a deed of trust securing it with like bonds and certifier of the bond issue, is not chargeable, from that knowledge alone, with actual notice of the fact that the pledgor is fiduciary of the bonds themselves, or with a fraudulent participation in the abuse of the trust relation. P. 365. 4. This construction binds the federal courts. Bums Mortgage Co. v. Fried, supra. P. 366. 5. The principle that a construction placed upon a state statute by the highest court of the State is to be read into the statute from the day of its enactment, applies to interests dependent on the statute which were created between the enactment and the decision. Kuhn v. Fairmont Coal Co., 215 U. S. 349, distinguished. P. 367. 70 F. (2d) 815, reversed. Certiorari * to review the affirmance of a decision of the District Court in a bankruptcy case, denying the present petitioners leave to sell negotiable bonds which had been pledged to them by the bankrupt. Messrs. Leon E. Kaumheimer and George A. Affeldt, with whom Messrs. George D. Van Dyke and Douglass Van Dyke were on the brief, for petitioners. The decision below is directly in conflict with Pollard v. Tobin, 211 Wis. 405. The court below erred in refusing to follow the decision of the Wisconsin Supreme Court * See Table of Cases Reported in this volume. MARINE BANK v. KALT-ZIMMERS CO. 359 357 Argument for Respondents. on the ground that the federal courts were not bound by a state court’s construction of its own uniform laws. The bearer bonds are negotiable instruments under and governed by the Negotiable Instruments Law in force in Wisconsin at the time of their execution and delivery. Their negotiable character is not destroyed by the reference to the trust deed securing their payment; for the reference is solely to the security and to the rights of the bondholders in and to such security. Petitioners, as pledgees, took in good faith and are holders in due course under the Wisconsin Negotiable Instruments Law. Under that law, bad faith alone and not constructive notice will defeat the rights of the holder of a negotiable instrument. Neither the reference to the trust deed nor the fact that the pledgor was named trustee of the security was notice to petitioners that the pledgor held the bonds themselves in a fiduciary capacity. The burden of proof was upon respondents to establish bad faith on the part of petitioners in taking the bonds. Mr. Irving A. Fish for respondents. The language on the face of the bonds and the nature of the pledge gave the bank actual notice of the breach of trust. Schroeder v. Arcade Theater Co., 175 Wis. 79, 103; Bell v. Scranton Trust Co., 282 Pa. 562; Ainsa v. Mercantile Trust Co., 174 Cal. 504; Holman v. Ryon, 56 F. (2d) 307; Spruill v. Ballard, 58 F. (2d) 517; Worm-ley v. Wormley, 8 Wheat. 421, 445; United States v. Dunn, 268 U. S. 121, 131; Duncan v. Jaudon, 15 Wall. 165, 175; Brovan v. Kyle, 166 Wis. 347, 352; Whitford v. Moehlenpah, 196 Wis. 10, 24. The references in the bonds make the part of the trust deed by which the trust is created a part of the bond. Paepcke v. Paine, 253 Mich. 636; Pringle v. Dunn, 37 Wis. 449, 466; Reichert v. Neuser, 93 Wis. 513, 515-518; OCTOBER TERM, 1934. Argument for Respondents. 360 293 U. S. Graff v. Castleman, 5 Randolph 195; Young v. Weed, 154 Pa. 316; Allen v. Moline Plow Co., 14 F. (2d) 912; Crosthwaite v. Moline Plow Co., 298 Fed. 466, 468. The Negotiable Instruments Law does not change the rule. Owens v. Nagel, 334 Ill. 96 ; Fehr v. Campbell, 288 Pa. 549; Ford v. Brown, 114 Tenn. 467; Gilman v. Bailey Carriage Co., 125 Me. 108; First Nat. Bank v. National Broadway Bank, 156 N. Y. 459; Fidelity de Deposit Co. v. Queens County Trust Co., 226 N. Y. 225; Hall n. Windsor Savings Bank, 97 Vt. 125; Pelton n. Spider Lake S. de L. Co., 132 Wis. 219; Wisconsin Yearly Meeting v. Babler, 115 Wis. 289; Ward v. City Trust Co., 192 N. Y. 61. The question of notice has not been passed on by the Wisconsin court. This point was not actually decided in the Pollard case. The Supreme Court of Wisconsin is not bound by decisions where a point might have defeated the action had it been raised but was not raised. State ex rel. Sheboygan v. Sheboygan County, 194 Wis. 456, 459; Kuhn v. Fairmont Coal Co. 215 U. S. 349, 360; Risty v. Chicago, R. I. & P. Ry. Co., 270 U. S. 378, 387. The Circuit Court of Appeals has discussed and severely criticized the opinion in the Pollard case on the question of the negotiability of the instruments in question. The conclusion arrived at by the Wisconsin court does seem strange, but we are not concerned with the question of negotiability. The trust deed contained the power in the trustees to sell the bonds and apply their proceeds to the redemption of the outstanding mortgage. If the bank had bought these bonds from these trustees in good faith, whether they are negotiable or not, they are good in the hands of the bank. It seems, however, that the pledge of the bonds for the personal obligation of the trustee, contrary to the terms of the trust, precludes the idea of good faith on the part of the bank. MARINE BANK v. KALT-ZIMMERS CO. 361 357 Opinion of the Court. Mr. Justice Cardozo delivered the opinion of the Court. In bankruptcy proceedings pending in Wisconsin, the petitioners, two Milwaukee banks, prayed an order of the court for permission to sell collateral securities pledged by the bankrupt. The subject of the pledge was bonds payable to bearer, secured by a deed of trust. The District Court refused the relief (6 F. Supp. 638), and the Court of Appeals for the Seventh Circuit affirmed. 70 F. (2d) 815. Two questions are in the case, first, whether the bonds are negotiable in form, and, second, whether the petitioners are holders in good faith. We granted certiorari. On October 9, 1929, Kalt-Zimmers Manufacturing Company of Milwaukee, Wisconsin, made its deed of trust to Hackett, Hoff and Thiermann, Incorporated, trustee, to secure bonds of the total amount of $115,000. The bonds are payable to bearer. They are stated to be secured by a deed of trust to the above named trustee, “ to which deed of trust reference is hereby made with the same effect as though recited at length herein, for the description of the property mortgaged, the nature and extent of the security, the rights of the holders of the bonds, and the terms and conditions upon which the said bonds are issued, held and secured, and may, before their fixed maturities, be declared at once due and payable, and the manner of prepayment before maturity.” They are to pass by delivery, but they are not to be valid for any purpose or be secured by the deed of trust until certified by the trustee to be bonds covered by the mortgage. The deed of trust thus referred to states the duty of the trustee in the disposition of the bonds and the application of the proceeds. The directions are precise and full. As soon as practicable after certifying the bonds the trustee is to negotiate and sell them. The proceeds are to be used, first, for the discharge of an underlying mortgage of $35,000 on real estate in Milwuakee belonging to the mort- 362 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. gagor; second, to pay the cost of a building then about to be constructed; “the balance,” if any, “to be at the disposal of the party of the first part,” the maker of the deed. “ The trustee, or any of its officers, agents or stockholders may acquire, own and deal in said bonds and coupons with the same rights as if not trustee hereunder and shall not be obliged to account to any one for any profits made thereby.” Hackett, Hoff and Thiermann, the trustee, did not dispose of the bonds in controversy in accordance with the deed of trust. Instead it pledged them with the petitioners ($6000 of bonds with the Marine Bank and $8,500 with the West Side Bank) as security for its own indebtedness, receiving back in some instances additional loans and in other instances securities of equal value previously pledged. On June 8, 1931, the trustee was adjudicated a bankrupt, whereupon the banks petitioned for authority to sell the bonds in their possession. The courts below have ruled that upon the face of the bonds the bankrupt held them not in its own right, but as trustee for the mortgagor or others, and that by reason of this disclosure the pledgees had been put upon inquiry and were chargeable with constructive notice of the provisions of the trust. All the transactions took place in Wisconsin, where the law of negotiable instruments is governed by statute. Wisconsin Statutes, 1929, § 116.01 et seq. First: Under the Wisconsin statute, as construed by the highest court of that state, the bonds are negotiable. Section 116.02 Wisconsin Statutes, 1929, provides as follows: “An instrument to be negotiable must conform to the following requirements: (1) It must be in writing and signed by the maker or drawer. (2) Must contain an unconditional promise or order to pay a sum certain in money. MARINE BANK v. KALT-ZIMMERS CO. 363 357 Opinion of the Court. (3) Must be payable on demand or at a fixed or determinable future time. (4) Must be payable to order or to bearer. (5) Where the instrument is addressed to a drawee, he must be named or otherwise indicated therein with reasonable certainty.”1 The bonds in controversy are payable to bearer. They are obviously negotiable, unless the reference, already quoted, to the terms of the deed of trust makes the promise of payment conditional. An identical provision was considered by the Supreme 'Court of Wisconsin in Pollard v. Tobin, 211 Wis. 405; 247 N. W. 453. The ruling of the court was that negotiability was not impaired. Cf. Enoch v. Brandon, 249 N. Y. 263; 164 N. E. 45; Sieben-hauer v. Bank of California, 211 Cal. 239; 294 Pac. 1062; Pflueger v. Broadway Trust & Savings Bank, 351 Ill. 170; 184 N. E. 318; Paepcke v. Paine, 253 Mich. 636; 235 N. W. 871; Merchants National Bank v. Detroit Trust Co., 258 Mich. 526; 242 N. W. 739; Bank of California v. National City Co., 138 Wash. 517; 244 Pac. 690. This construction of a Wisconsin statute is binding upon the national courts, though the statute may have been intended to be declaratory of the rule at common law. Burns Mortgage Co. n. Fried, 292 U. S. 487. Second: The bonds being negotiable, the petitioners under the Wisconsin law have the privileges accorded to holders in good faith. Section 116.61, Wisconsin Statutes, 1929, provides as follows: “Actual knowledge of infirmity necessary to notice. To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual 1 As to the meaning of the words “ determinable future time,” see Wisconsin Statutes, 1929, § 116.08. 364 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.” The effect of this section was considered in Pollard v. Tobin, supra. There the same bankrupt, Hackett, Hoff and Thiermann, Incorporated, was trustee under another deed of trust, made by one Tobin. The bonds had the same provisions contained in the bonds in suit. There, as here, the bankrupt pledged the bonds with a bank as security for loans. The court held that the bank was a holder in due course. It was a holder for value, for it had given up other collateral upon the pledge of the new security (citing American Savings Bank Trust Co. v. Helgesen, 64 Wash. 54; 116 Pac. 837). It was a holder in good faith, for there was 11 no evidence of actual knowledge on the part of the bank of any infirmity in the bonds or any defect in the Hackett Corporation’s title to them” (citing § 116.61, Negotiable Instruments Law of Wisconsin). We interpret that decision as a ruling that under the Wisconsin statute notice of facts tending to put a cautious buyer upon inquiry will not defeat the title of a holder of negotiable paper, if in truth there was neither actual knowledge of an infirmity nor conscious joinder in a fraud. Cf. Murray v. Lardner, 2 Wall. 110, 121; Swift v. Smith, 102 U. S. 442, 444; Crittenden n. Widrevitz, 272 Fed. 871, 873; Cheever v. Pittsburgh, S. & L. E. R. Co., 150 N. Y. 59, 65, 66; 44 N. E. 701; Nickey Bros. v. Lonsdale Mfg. Co., 149 Tenn. 1; 257 S. W. 403.2 As applied to the case at hand, the reasoning, it seems, is this : A trustee under a mortgage may or may not be a trustee of bonds payable to bearer, accompanying the mortgage. The existence of the one trust does not lead as a necessary inference to the 2 The cases are assembled in Brannon’s Negotiable Instruments Law, 4th edition by Chafee, § 56, p. 444 et seq. MARINE BANK v. KALT-ZIMMERS CO. 365 357 Opinion of the Court. existence of the other. If title or possession as a fiduciary is not apparent from the bonds themselves or is not otherwise made known, there is no duty resting upon the buyer to examine the deed of trust, or explore other avenues of inquiry, to discover the concealed relation. We are not required for present purposes to approve this doctrine or disapprove it. Enough that we accept it as the law of the Wisconsin court. Whether the same result will follow if a pledgee, making a loan upon bonds for the private use of the pledgor, is aware that a trust has been attached to what is taken as security, we do not now consider. There are decisions at common law that acceptance of a pledge upon such terms amounts to bad faith or to evidence thereof, or even to actual knowledge of an infirmity of title. Cf. Duncan v. Jaudon, 15 Wall. 165; Manhattan Bank n. Walker, 130 U. S. 267, 278; Smith v. Ayer, 101 U. S. 320, 328; Ward v. City Trust Co., 192 N. Y. 61,69,70; 84 N. E. 585; Newburyport v. Fidelity Mutual Life Ins. Co., 197 Mass. 596; 84 N. E. Ill; Empire Trust Co. n. Cahan, 274 U. S. 473.3 We do not understand that any ruling yet made as to the effect of the Wisconsin statute extends to such a state of facts. Pollard v. Tobin, as we read it, is authority for this: that a bond payable to bearer is not sullied upon its face because tendered by a holder who is known to be a trustee under the mortgage and to have certified the issue. From that knowledge without more, a buyer in Wisconsin is not chargeable with actual notice that the title of the seller is subject to a trust, or with a fraudulent participation in the abuse of a trust relation. What we have written as to the meaning of Pollard v. Tobin is not at variance with the construction given to that judgment in the opinion of the court below. Referring to the Wisconsin case, the Court of Appeals said 3 The cases are brought together in Scott, Participation in a Breach of Trust, 34 Harv. L. Rev. 454, 457 et seq. 366 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. that it “ involved the identical question now under consideration, arising out of a transaction between the same bankrupt and another bank, in which there were pledged, under similar circumstances, bonds practically identical in form and terms with the bonds herein involved.” 70 F. (2d) at 817. With this concession there was none the less a refusal to follow the Wisconsin rule, the court expressing the opinion that the rule had its origin in the misconstruction of a declaratory statute. “ The federal courts are not bound,” it was said, “ by a decision of a state court in the interpretation or application of a provision of a uniform law contrary to the weight of authority as established by decisions of other states.” 70 F. (2d) at 818. By our judgment in Burns Mortgage Co. v. Fried, supra, a case decided shortly after the decision of this case below, the law is settled to the contrary. The point is made for the respondent that adherence is not owing to Pollard v. Tobin, for the reason that at the date of the transactions in controversy the meaning of the Wisconsin statute was still undetermined. Kuhn v. Fairmont Coal Co., 215 U. S. 349, is cited in support of that contention. What was involved in that case was the application of a local decision affecting interests in real estate that were untouched by any statute. The opinion of the court (p. 369) does not deny (citing Brine v. Insurance Co., 96 U. S. 627, 636), that the conclusion would have been different if the contested interests had been dependent upon a statute preceding their creation, though not construed till afterwards. In that event the later construction would have been read into the act as if there from the beginning. Chicago, M., St. P. & P. R. Co. v. Risty, 276 U. S. 567, 570; Sioux County v. National Surety Co., 276 U. S. 238, 240; Hawks v. Hamill, 288 U. S. 52, 58. Cf. Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U. S. 358. SCHUMACHER v. BEELER. 367 357 Statement of the Case. The Negotiable Instruments Law of Wisconsin was part of the law of that state when the bonds in controversy were pledged. This being so, the decision in Pollard v. Tobin supplies the governing rule irrespective of the date when the decision was announced. In that view, Kuhn v. Fairmont Coal Co. is seen to be irrelevant.. There is no occasion in such circumstances to mark its limits more precisely. Hawks N. Hamill, supra. The decree is reversed and the cause remanded for further proceedings in accordance with this opinion. Reversed. SCHUMACHER, SHERIFF OF BUTLER COUNTY, OHIO, v. BEELER, TRUSTEE IN BANKRUPTCY. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 215. Argued November 16, 1934.—Decided December 17, 1934. 1. Section 23 (b) of the Bankruptcy Act, as amended, operates as a grant of jurisdiction to the District Court of suits brought by trustees in bankruptcy against adverse claimants, provided the defendants consent to be sued in that court, although the suits be such that the bankrupts could not have brought them in that court if the proceedings in bankruptcy had not been instituted. P. 371. 2. Of suits falling within the exceptions specified in § 23 (b), namely, suits for the recovery of property under §§60 (b), 67 (e), and 70 (e), the District Court has jurisdiction without the defendants’ consent. P. 376. 71 F. (2d) 831, affirmed. Certiorari* to review a decree reversing a decree of the District Court which dismissed the cause for want of jurisdiction. This was a plenary suit by a trustee in bankruptcy against a sheriff, to enjoin the sale of property of the bankrupt under an execution from a state court. * See Table of Cases Reported in this volume. 368 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. Mr. Coleman Avery, with whom Messrs. Paul A. Baden, Frank H. Shaffer, Jr., and John W. Peck were on the brief, for petitioner. Messrs. Province M. Pogue and Henry B. Street for respondent. Mr. Chief Justice Hughes delivered the opinion of the Court. In granting the writ of certiorari, we limited our review to the question of the jurisdiction of the District Court under § 23 (b) of the Bankruptcy Act. That provision, and its immediate context, § 23 (a), are set forth in the margin.1 44 Stat. 664; 11 U. S. C., § 46 (a) (b). This is a plenary suit brought by respondent, trustee in bankruptcy, in the District Court to enjoin the sale of certain property, alleged to be fixtures, attached to the manufacturing plant of the bankrupt, which petitioner, as sheriff, was threatening to sell under an execution issued more than four months prior to the bankruptcy proceeding upon a judgment recovered against the bank- 1 Section 23 (a) (b), as amended by the Act of May 27, 1926, c. 406, § 8, is as follows: “Sec. 23 (a). The United States district courts shall have jurisdiction of all controversies at law and in equity, as distinguished from proceedings in bankruptcy, between trustees as such and adverse claimants concerning the property acquired or claimed by the trustees, in the same manner and to the same extent only as though bankruptcy proceedings had not been instituted and such controversies had been between the bankrupts and such adverse claimants. “(b) Suits by the trustee shall be brought or prosecuted only in the courts where the bankrupt, whose estate is being administered by such trustee, might have brought or prosecuted them if proceedings in bankruptcy had not been instituted, unless by consent of the proposed defendant, except suits for the recovery of property under section 60, subdivision b; section 67, subdivision e; and section 70, subdivision e.” SCHUMACHER v. BEELER. 369 367 Opinion of the Court. rupt in the Court of Common Pleas of Hamilton County, Ohio. The trustee’s petition alleged that sale by thé sheriff, pending a determination whether or not the property was a part of the realty, would cause irreparable damage to the bankrupt’s estate. The trustee contends that the sheriff’s levy upon the property in question was invalid under the law of Ohio, and that at the time of the filing of the petition in bankruptcy all writs of venditioni exponas, or orders for the sale of the real estate, had expired, and also that, as there were mortgages upon the property, the appropriate method of enforcing the judgment was by a creditor’s bill. The sheriff first appeared specially, asserting his claim by virtue of levy under execution, and sought dismissal of the suit upon the ground that the court was without jurisdiction. Shortly after, the sheriff withdrew his motion to dismiss, entered his general appearance, and made answer to the petition,, expressly consenting that the District Court should hear and determine all matters to which the petition referred. The sheriff in this answer, after stating that he had levied upon personal property and real estate of the judgment debtor, said that a controversy had arisen whether or not certain items of “ chattel property,” set forth in the exhibit attached to the trustee’s petition, were “ in law fixtures and therefore a part of the real estate ” ; that it would be necessary to have that question determined so that he might be advised as to what part of the “ chattel property,” he had a right to sell under the execution ; and that he did not know “ as a matter of law whether the levy so made by him upon the real estate ” was or was not a valid levy, and therefore he put the plaintiff “ on proof thereof.” The next day the sheriff asked leave to withdraw his answer. The disposition of that motion does not appear and the court below has assumed that it was not pressed. Later, the sheriff again 89995°—35---24 370 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. moved to dismiss the cause for the want of jurisdiction, and the motion was granted. This order was reversed by the Circuit Court of Appeals. That court concluded that the validity of the trustee’s claim, and of that of the sheriff, depended upon disputed facts and issues of law; that the adverse claim of the sheriff was substantial and that its merits could be adjudged only in a plenary suit; that this proceeding should be treated as one of that nature and that there was consent to the jurisdiction of the District Court within the meaning of § 23 (b) of the Bankruptcy Act. As the case had not been heard upon its merits, and the record presented no findings of fact or conclusions of law, the Circuit Court of Appeals did not deal with any question except that of jurisdiction and directed that the cause be remanded to the District Court with instructions to hear and determine the controversy. The trustee’s petition, which the Circuit Court of Appeals treated as a bill of complaint, did not allege diversity of citizenship. Nor did it contain clear and sufficient averments showing that the complainant, as against the sheriff claiming under a judgment recovered and an execution issued more than four months before the bankruptcy, had possession of the property in question by virtue of which the District Court would have jurisdiction of the suit irrespective of the consent of the defendant.2 The case thus turns on the effect of the sheriff’s consent under § 23 (b). The sheriff contends that he had no authority to give the consent; but he was the defendant 2 See Whitney v. Wenman, 198 U. S. 539, 552; Murphy v. John Hojman Co., 211 U. S. 562, 568-570; Hebert v. Crawjord, 228 U. S. 204, 208; Taubel-Scott-Kitzmiller Co. v. Fox, 264 U. S. 426, 432, 434; Isaacs v. Hobbs Tie & Timber Co., 282 U. S. 734, 737, 738; Straton v. New, 283 U. S. 318, 321, 326; Page v. Arkansas Gas Corp., 286 U. S. 269, 271. SCHUMACHER v. BEELER. 371 367 Opinion of the Court. in the suit and his consent was actually given. We find no ground for concluding that the consent was invalid. Conflicting views have been held of the meaning of the provision for consent in § 23 (b). In one view, the provision relates merely to venue, that is, only to a consent to the “ local jurisdiction.” Matthew v. Coppin, 32 F. (2d) 100, 101. See, also, McEldowney v. Card, 193 Fed. 475, 479; De Friece n. Bryant, 232 Fed. 233, 236; Operators’ Piano Co. v. First Wisconsin Trust Co., 283 Fed. 904, 906; Coyle v. Duncan Spangler Coal Co., 288 Fed. 897, 901; Stiefel v. llfth Street Realty Corp., 48 F. (2d) 1041,1043. Compare Lovell v. Newman Ac Son, 221 U. S. 412, 426. It has been said that if § 23 (b) affects “ substantive jurisdiction,” as distinct from venue, § 23 (a) appears to be redundant. Stiefel v. 14th Street Realty Corp., supra. The opposing view was set forth by the court below in Toledo Fence & Post Co. v. Lyons, 290 Fed. 637, 645, and that decision was followed in the instant case. See, also, Boonville National Bank v. Blakey, 107 Fed. 891, 893; Seegmiller v. Day, 249 Fed. 177, 178; Stiefel v. Ujth Street Realty Corp., supra; Lowenstein v. Reikes, 60 F. (2d) 933, 935. It proceeds upon the ground that the Congress had power to permit suits by trustees in bankruptcy in the federal courts against adverse claimants, regardless of diversity of citizenship, and that by § 23 (b) the Congress intended that the federal courts should have that jurisdiction in cases where the defendant gave consent, and, without that consent, in cases which fell within the stated exceptions. We think that the latter view is the correct one. The provisions of the earlier bankruptcy acts and the purpose and significance of § 23 of the Act of 1898, as originally enacted, were elaborately considered in Bardes v. Hawarden Bank, 178 U. S. 524. Section 8 of the Act of 1841 (5 Stat. 446) conferred on the Circuit Courts con 372 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. current jurisdiction with the District Courts of all suits, at law or in equity, between assignees in bankruptcy and adverse claimants. This broad grant of jurisdiction was continued in § 2 of the Act of 1867. 14 Stat. 518. Lathrop v. Drake, 91 U. S. 516. The Act of 1867 recognized and emphatically declared the distinction between proceedings in bankruptcy, properly so-called, and independent suits between assignees in bankruptcy and adverse claimants. Jurisdiction of such suits was conferred upon the District Courts and Circuit Courts of the United States by the express provision to that effect in § 2 of that act, and was not derived from the other provisions of § § 1 and 2, conferring jurisdiction of proceedings in bankruptcy. Bardes v. Hawarden Bank, supra, p. 533. The jurisdiction of such suits in law and equity was of the same character as that conferred upon the Circuit Courts by the eleventh section of the Judiciary Act of 1789 (Morgan v. Thornhill, 11 Wall. 65, 80) and the conferring of that jurisdiction upon the federal courts did not divest or impair the jurisdiction of the state courts over like cases. Eyster n. Gaff, 91 U. S. 521, 525; Bardes v. Hawarden Bank, supra, pp. 532, 533. It was with this legislative background that the Congress undertook the framing of the Act of 1898. 30 Stat. 544. The distinction between proceedings in bankruptcy and suits between trustees in bankruptcy and adverse claimants was maintained. As appellate jurisdiction had been vested in the Circuit Courts of Appeals by the Act of 1891 (26 Stat. 826), the Act of 1898, in lieu of the “ general superintendence and jurisdiction ” given to the Circuit Courts by the Act of 1867 “ of all cases and questions ” arising in bankruptcy, conferred upon the Circuit Courts of Appeals the jurisdiction “ to superintend and revise in matter of law the proceedings of the several inferior courts of bankruptcy within their jurisdiction.” SCHUMACHER v. BEELER. 373 367 Opinion of the Court. § 24 b. But the Circuit Courts at that time were still courts of original jurisdiction and, by § 23 of the Act of 1898, the Congress provided the extent to which the Circuit Courts should have jurisdiction of suits at law or in equity between trustees in bankruptcy and adverse claimants. Section 23, as originally enacted, was as follows (30 Stat. 552, 553): “ Sec. 23. Jurisdiction of United States and State Courts.— “ a The United States circuit courts shall have jurisdiction of all controversies at law and in equity, as distinguished from proceedings in bankruptcy, between trustees as such and adverse claimants concerning the property acquired or claimed by the trustees, in the same manner and to the same extent only as though bankruptcy proceedings had not been instituted and such controversies had been between the bankrupts and such adverse claimants. “ b Suits by the trustee shall only be brought or prosecuted in the courts where the bankrupt, whose estate is being administered by such trustee, might have brought or prosecuted them if proceedings in bankruptcy had not been instituted, unless by consent of the proposed defendant. “ c The United States circuit courts shall have concurrent jurisdiction with the courts of bankruptcy, within their respective territorial limits, of the offenses enumerated in this Act.” Section 23a thus related exclusively to the Circuit Courts. Section 23b applied both to the Circuit Courts and the District Courts, as well as to the state courts. “This appears,” said the Court in Bardes v. Hawarden Bank, supra, (p. 536) “ not only by the clear words of the title of the section, but also by the use, in this clause, of the general words, ‘ the courts,’ as contrasted with the specific words, 1 the United States Circuit Courts,’ in the 374 OCTOBER TERM, 1934. Opinion of the Court. 293 TJ. 8. first and in the third clauses.” The argument that if § 23b affects “ substantive jurisdiction,” § 23a is redundant, loses sight of the original distinction and application of the section and of its historical development. By § 289 of the Judicial Code of 1911 (36 Stat. 1167), the Circuit Courts were abolished; and by § 291 of that Act it was provided that wherever, in any law not embraced within the Judicial Code, any power or duty is conferred or imposed upon the Circuit Courts, that power and duty shall be deemed to be conferred and imposed upon the District Courts. This provision had the effect of amending § 23a of the Bankruptcy Act so as to make it apply to the United States District Courts instead of the United States Circuit Courts. Formal amendment, to conform the language of the section to the fact, was made by the Act of May 27, 1926. 44 Stat. 664. In enacting § 23, it was clearly the intent of the Congress that the federal courts should not have the unrestricted jurisdiction of suits between trustees in bankruptcy and adverse claimants which these courts had exercised under the broad provisions of § 2 of the Act of 1867. The purpose was to leave such controversies to be heard and determined for the most part in the state courts “ to the greater economy and convenience of litigants and witnesses.” But no reason appeared for a denial of jurisdiction to the federal court if the defendant, the adverse claimant, consented to be sued in that court. The Congress, by virtue of its constitutional authority over bankruptcies, could confer or withhold jurisdiction to entertain such suits and could prescribe the conditions upon which the federal courts should have jurisdiction. See Sherman v. Bingham, 21 Fed. Cas. (No. 12,762), 1270, 1272. Exercising that power, the Congress prescribed in § 23b the condition of consent on the part of the defendant sued by the trustee. Section 23b was thus in effect a grant of jurisdiction subject to that condition. SCHUMACHER v. BEELER. 375 367 Opinion of the Court. That this was the interpretation by this Court of § 23b, in its original form, is shown not only by the statement of the result of the Court’s analysis in the Bar des case, supra, (p. 538) but quite clearly by its formal disposition of the questions before it. The Bardes case was a bill in equity in the District Court by a trustee in bankruptcy to set aside a conveyance of property in fraud of creditors. The District Court dismissed the bill for want of jurisdiction and the case came here on direct appeal with a certificate by the District Judge submitting the questions which had arisen. This Court considered those questions and specifically answered the first and second questions as follows: “ 1st. The provisions of the second clause of section 23 of the Bankrupt Act of 1898 control and limit the jurisdiction of all courts, including the several District Courts of the United States, over suits brought by trustees in bankruptcy to recover or collect debts due from third parties, or to set aside transfers of property to third parties, alleged to be fraudulent as against creditors, including payments in money or property to preferred creditors. “2d. The District Court of the United States can, by the proposed defendants’ consent, but not otherwise, entertain jurisdiction over suits brought by trustees in bankruptcy to set aside fraudulent transfers of money or property, made by the bankrupt to third parties before the institution of the proceedings in bankruptcy.” As there was no pretence of consent of the defendant in that case, the District Court was found to be without jurisdiction and its decree was accordingly affirmed. Compare Mueller v. Nugent, 184 U. S. 1, 16; Spencer v. Duplan Silk Co., 191 U. S. 526, 531; Whitney v. Wenman, 198 U. S. 539, 552; Bush v. Elliott, 202 U. S. 477, 479, 483; Harris v. First National Bank, 216 U. S. 382, 383; Wood v. Wilbert’s Co., 226 U. S. 384, 387. After the decision in the Bardes case, and by § 8 of the Act of February 5, 1903 (32 Stat. 797, 798), § 23b was 376 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. amended by adding, after the words “ unless by consent of the proposed defendant,” the following: “ except suits for the recovery of property under section sixty, subdivision b, and section sixty-seven, subdivision e.” The excepted suits are those brought by the trustee in bankruptcy to recover property transferred by the bankrupt in effecting preferences made voidable by the Act, and suits to recover property conveyed by the bankrupt in fraud of creditors within four months prior to the filing of the petition in bankruptcy. The effect of the exception was to remove, as to these classes of cases, the requirement in § 23b of the consent of the defendant as a condition of the exercise of jurisdiction. The Act of 1903 also amended sections 60b, 67e, and 70e, so as to provide that in suits to recover property under those sections “ any court of bankruptcy,” and “any state court ” which would have had jurisdiction if bankruptcy had not intervened, “ shall have concurrent jurisdiction,” Act of February 5,1903, §§ 13, 16; 32 Stat. 799, 800. The scope of the amendment of § 23b by the Act of 1903, in the light of the amendment by the same Act of section 70, e—a question which was left undetermined in Harris v. First National Bank, supra (p. 385)—was passed upon in Wood v. Wilbert’s Co., supra (pp. 389, 390). The Court there decided that the amendment of section 70e could not be regarded as intended to create a conflict with the amendment of § 23b, which did not include in the exception suits brought under section 70e. The Court said: “ In other words, the respective sections and their subdivisions confer jurisdiction on the designated courts so far as it is dependent upon the character of the suits, but when the condition expressed in subdivision b of § 23 exists the consent of the defendant determines the court, except when the suit is 1 for the recovery of property under section sixty, subdivision b, and section sixty-seven, GEORGE v. VICTOR CO. 377 367 Syllabus. subdivision e.’ These special exceptions exclude any other.” By the Act of June 25, 1910 (36 Stat. 840) § 23b was further amended so as to include in the exception suits for the recovery of property under section 70, subdivision e. See Weidhorn v. Levy, 253 U. S. 268, 272. We think that the exceptions thus established by the amending acts show clearly that it was the intent of the Congress that § 23b should operate as a grant of jurisdiction to the federal court of suits brought by a trustee in bankruptcy against adverse claimants, provided the defendant consented to be sued in that court, although the bankrupt could not have brought suit there if proceedings in bankruptcy had not been instituted, and that, in suits falling within the exceptions,, the federal court should have jurisdiction without the defendant’s consent. The question was not necessarily involved in the case of Lovell v. Newman Son, 227 U. S. 412, 426, and so far as the language of the opinion indicated a contrary view, it is not approved. Compare MacDonald v. Plymouth Trust Co., 286 U. S. 263, 268; Page V. Arkansas Gas Corp., 286 U. S. 269, 271, 272. We conclude that the court had jurisdiction in the instant case, and the decree of the Circuit Court of Appeals setting aside the order of the District Court and directing that court to hear and determine the controversy upon its merits is affirmed. Decree affirmed. GEORGE v. VICTOR TALKING MACHINE CO. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 128. Argued December 5, 1934.—Decided December 17, 1934. 1. A decree of the District Court finding infringement of the common law right of property in a song, granting an injunction, and 378 OCTOBER TERM, 1934. Per Curiam. 293 U. S. appointing a master to take and state an account of profits and report to the court, with the usual provisions for exceptions to such report, is interlocutory. P. 378. 2. An appeal from such a decree, taken after the time limited by Jud. Code § 129, 28 U. S. C. § 227, has expired, is beyond the jurisdiction of the Circuit Court of Appeals. P. 379. 69 F. (2d) 871, reversed. Certiorari* to review a decree reversing, on the merits, a decree of injunction and for an accounting of profits, in a suit based on an infringement of the plaintiff’s common law right of property in the words of a song. Mr. Minitree Jones Fulton, with whom Messrs. Robert L. Nase and Q. C. Davis, Jr., were on the brief, for petitioner. Mr. Louis Levinson, with whom Messrs. Robert P. Myers, Lawrence B. Morris, I. E. Lambert, and Isaac D. Levy were on the brief, for respondent. Per Curiam. Review was limited to the question of the jurisdiction of the Circuit Court of Appeals. The suit was brought for the infringement of the common law right of property in a song, and the bill sought an accounting of profits made by the defendant. The District Court sustained the plaintiff’s right as author and found infringement. Decree was entered granting an injunction and appointing a special master to take and state an account of profits and to report to the court, with the usual provisions for exceptions to the report. The decree was interlocutory. The Palmyra, 10 Wheat. 502; Perkins v. Fourniquet, 6 How. 206, 208, 209; Craighead n. Wilson, 18 How. 199, 202 (explaining Forgay v. Conrad, 6 How. 201); Beebe v. Russell, 19 How. 283, 287; Humiston v. Stainthorp, 2 * See Table of Cases Reported in this volume. ENELOW v. N. Y. LIFE INS. CO. 379 378 Syllabus. Wall. 106; Keystone Manganese Co. v. Martin, 132 U. S. 91, 93, 97; McGourkey v. Toledo & Ohio Central Ry. Co., 146 U. S. 536, 547; Guarantee Co. v. Mechanics’ Savings Bank & Trust Co., 173 U. S. 582, 586; Simmons Co. v. Grier Brothers Co., 258 U. S. 82, 89. The decree was entered on March 31, 1933, and the appeal to the Circuit Court of Appeals was not taken until May 18, 1933. The Circuit Court of Appeals entertained the appeal and reversed the decree of the District Court. As the appeal was not taken within the time prescribed by law, the Circuit Court of Appeals was without jurisdiction. Jud. Code, § 129, 28 U. S. C. 227. The decree of the Circuit Court of Appeals is reversed and the cause is remanded to that court with directions to dismiss the appeal. Reversed. ENELOW v. NEW YORK LIFE INSURANCE CO. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 47. Argued November 7, 1934.—Decided January 7, 1935. 1. A decree of the District Court under Jud. Code, § 274b, staying an action at law pending determination on the equity side of an equitable defense to the action, is in effect an injunction and, being interlocutory, is appealable to the Circuit Court of Appeals under Jud. Code, § 129. P. 381. 2. An application under Jud. Code, § 274b, to stay (i. e., to enjoin) proceedings of a law action until an equitable defense may be heard, will not lie if the defense is one which is completely available in the law action. The test is whether the defendant could have maintained a bill in equity on the same averments. P. 383. 3. In an action brought by the sole beneficiary of a life insurance policy to collect the insurance after the death of the insured, a defense that the policy was procured by false answers in the application, alleged to have been made by the insured with knowl- 380 OCTOBER TERM, 1934. Opinion of the Court. 293 U.S. edge of their falsity and fraudulently for the purpose of obtaining the insurance, is completely available in the action at law, and therefore affords no basis for a stay under Jud. Code, § 274b. P. 384. 4. In an action on a life insurance policy, in which the plaintiff was its sole beneficiary and in which the defendant insurance company sought the remedy of cancellation upon the ground of fraud in the application, and tendered the amount of the premiums to the plaintiff, held that there was no merit in the company’s contention that, because the executors of the insured, who were not made parties, would be entitled to the refund if the defense of fraud prevailed, the remedy at law was inadequate. P. 385. 70 F. (2d) 728, reversed. Certiorari * to review the affirmance of a decree of the District Court staying an action at law on an insurance policy to await the hearing of an equitable defense interposed by the Insurance Company. Mr. Charles H. Sachs, with whom Mr. Louis Caplan was on the brief, for petitioner. Mr. William H. Eckert, with whom Mr. Louis H. Cooke was on the brief, for respondent. Mr. Chief Justice Hughes delivered the opinion of the Court. This is an action at law upon a policy of life insurance issued by respondent in December, 1931, on the life of petitioner’s husband, Max Enelow, who died in May, 1933. The action was brought in a state court in Pennsylvania, in July, 1933, and was removed to the federal court. The policy provided that it should be incontestable after two years from date of issue. In its affidavit of defense, respondent set up the affirmative defense that the policy had been obtained by means of false and fraudulent statements in the decedent’s application which * See Table of Cases Reported in this volume. ENELOW v. N. Y. LIFE INS. CO. 381 379 Opinion of the Court. was made a part of the policy. These statements consisted of the applicant’s answers to questions with respect to hospital observation or treatment and to his consultations with physicians. Respondent alleged that, while the applicant had answered these questions with an unqualified negative, he had in fact repeatedly consulted physicians for neurosis and cardiac disease and had twice been the subject of hospital observation. Respondent further alleged that these answers were made by the applicant “ with knowledge of their falsity and fraudulently for the purpose of procuring said insurance.” Respondent tendered judgment for the premiums received by it, with interest, and prayed for cancellation of the policy. Petitioner in her reply denied that the answers in the application were either false or fraudulent. Respondent then presented a petition asking that the “ equitable issue ” raised by the affidavit of defense and the plaintiff’s reply should be heard pursuant to § 274b of the Judicial Code (28 U. S. C. 398) “ by a chancellor according to equity procedure in advance of the trial by jury at law of any purely legal issues.” The District Court entered a rule to show cause why the petition should not be granted and, on hearing, made the rule absolute. Its decree was affirmed by the Circuit Court of Appeals. 70 F. (2d) 728. This Court issued writ of certiorari, October 8, 1934. First. A preliminary question arises as to the jurisdiction of the Circuit Court of Appeals. The decree of the District Court was interlocutory, and the question is whether it can be considered to be one granting an injunction and thus within the purview of § 129 of the Judicial Code (28 U. S. C. 227) permitting appeal. This section contemplates interlocutory orders or decrees which constitute an exercise of equitable jurisdiction in granting or refusing an injunction, as distinguished from a mere stay of proceedings which a court of law, as 382 OCTOBER TERM, 1934. Opinion of the Court. 293 U.S. well as a court of equity, may grant in a cause pending before it by virtue of its inherent power to control the progress of the cause so as to maintain the orderly processes of justice. The power to stay proceedings in another court appertains distinctively to equity in the enforcement of equitable principles, and the grant or refusal of such a stay by a court of equity of proceedings at law is a grant or refusal of an injunction within the meaning of § 129. And, in this aspect, it makes no difference that the two cases, the suit in equity for an injunction and the action at law in which proceedings are stayed, are both pending in the same court, in view of the established distinction between “ proceedings at law and proceedings in equity in the national courts and between the powers of those courts when sitting as courts of law and when sitting as courts of equity.” Per Van Devan ter, J., in Griesa v. Mutual Life Ins. Co., 165 Fed. 48, 50, 51. When the Congress enacted § 274b of the Judicial Code, providing for equitable defenses in actions at law and the granting of affirmative equitable relief, the procedure was simplified but the substance of the authorized intervention of equity was not altered. The court was empowered to exercise a summary equitable jurisdiction. Equitable defenses were permitted to be interposed in actions at law “by answer, plea or replication without the necessity of filing a bill on the equity side of the court.” 1 The defendant is to have “ the same rights ” as if he had filed a bill seeking the same relief. The equitable issue “ is to be tried to the judge as a chancellor.” The same order of trial is preserved as under the system 1 The text of § 274b (28 U. S. C. 398) is as follows: “Equitable defenses and equitable relief in actions at law. In all actions at law equitable defenses may be interposed by answer, plea, or replication without the necessity of filing a bill on the equity side of the court. The defendant shall have the same rights in such case as if he had filed a bill embodying the defense or seeking the relief ENELOW v. N. Y. LIFE INS. CO. 383 379 Opinion of the Court. of separate courts. Liberty Oil Co. v. Condon Bank, 260 U. S. 235, 242, 243. The trial of the issue at law maybe postponed until the equitable issue is first disposed of, and then, if an issue at law remains, it is triable by a jury as the Seventh Amendment requires. Id. It is thus apparent that when an order or decree is made under § 274b, requiring, or refusing to require, that an equitable defense shall first be tried, the court, exercising what is essentially an equitable jurisdiction, in effect grants or refuses an injunction restraining proceedings at law precisely as if the court had acted upon a bill of complaint in a separate suit for the same purpose. Such a decree was made in the instant case, and therefore, although interlocutory, it was appealable to the Circuit Court of Appeals under § 129. See Ford n. Huff, 296 Fed. 652, 658; American Cyanamid Co. v. Wilson & Toomer Co., 62 F. (2d) 1018, 1019, 1020. Compare Emlenton Refining Co. n. Chambers, 14 F. (2d) 104. Second. We come to the merits. Was the defense set up by the defendant of such a nature that defendant was entitled to have it heard and determined in equity and to enjoin the proceedings at law pending that determination? The test under § 274b is whether the defendant could have maintained a bill in equity on the same averments. The unequivocal language of the provision leaves no room for the argument that the substantive jurisdiction of equity was sought to be changed or enlarged. The defendant’s rights to a hearing in equity are “ the same,” not greater, when he resorts to the summary procedure. prayed for in such answer or plea. Equitable relief respecting the subject matter of the suit may thus be obtained by answer or plea. In case affirmative relief is prayed in such answer or plea, the plaintiff shall file a replication. Review of the judgment or decree entered in such case shall be regulated by rule of court. Whether such review be sought by writ of error or by appeal the appellate court shall have full power to render such judgment upon the records as law and justice shall require.” . OCTOBER TERM, 1934. Opinion of the Court. 384 293 U. S. See Liberty Oil Co. v. Condon Bank, supra; Union Pacific R. Co. v. Syas, 246 Fed. 561, 565; American Cyanamid Co. v. Wilson & Toomer Fertilizer Co., supra; New York Life Ins. Co. v. Miller, 73 F. (2d) 350. Compare Phillips-Morefield v. Southern States Life Ins. Co., 66 F. (2d) 29, 30; New York Life Ins. Co. v. Marotta, bl F. (2d) 1038. And it necessarily follows that this summary procedure cannot aid the defendant when a bill for the same relief would not lie because the defense is one which is completely available in the action at law. Emphasizing the fundamental principle of the equitable jurisdiction, the Congress, from the first Judiciary Act, has declared that suits in equity shall not be sustained in any court of the United States in any case where a “ plain, adequate and complete remedy ” may be had at law. Act of September 24, 1789, § 16, 1 Stat. 82; Jud. Code, § 267, 28 U. S. C. 384. The instant case is not one in which there is resort to equity for cancellation of the policy during the life of the insured and no opportunity exists to contest liability at law. Nor is it a case where, although death-may have occurred, action has not been brought to recover upon the policy, and equitable relief is sought to protect the insurer against loss of its defense by the expiration of the period after which the policy by its terms is to become incontestable.2 Here, on the death of the insured, an action at law was brought on the policy, and the defendant had opportunity in that action at law, and before the policy by its terms became incontestable, to contest its liability and accordingly filed its affidavit of defense. That defense 2 See Mutual Life Ins. Co. v. Hurni Packing Co., 263 U. S. 167, 177; Jefferson Standard Life Ins. Co. v. Keeton, 292 Fed. 53, 54; Jefferson Standard Life Ins. Co. v. McIntyre, 294 Fed. 886; Jones v. Reliance Life Ins. Co., 11 F. (2d) 69, 70; Peake v. Lincoln National Life Ins. Co., 15 F. (2d) 303,.305, 306; Keystone Dairy Co. v. New York Life Ins. Co., 19 F. (2d) 68; Rose v. Mutual Life Ins. Co., 19 F. (2d) 280, 282; Brown v. Pacific Mutual Life Ins. Co., 62 F, (2d) 711, 712. 379 ENELOW v. N. Y. LIFE INS. CO. Opinion of the Court. 385 was solely that the defendant had been induced to issue the policy by false answers in the application which were alleged to have been made by the applicant“ with knowledge of their falsity and fraudulently ” in order to obtain the insurance. The affidavit of defense showed nothing whatever as a further ground for equitable relief and the respondent is necessarily confined to the case it made. In such a case, the defense of fraud is completely available in the action at law and a bill in equity would not lie to stay proceedings in that action in order to have the defense heard and determined in equity. Insurance Co. v. Bailey, 13 Wall. 616, 623; Life Insurance Co. v. Bangs, 103 U. S. 780, 782; Cable v. United States Life Ins. Co., 191 U. S. 288, 305; American Mills Co. v. American Surety Co., 260 U. S. 360, 363; New York Life Ins. Co. v. Marshall, 23 F. (2d) 225; New York Life Ins. Co. v. Miller, supra. Respondent was in no better position under § 274b. Nor is there merit in the contention that the remedy at law is not adequate because petitioner is not the only person interested in the policy and that the premiums paid would be refundable to the decedent’s executors. The executors have no interest entitling them to enforce the policy. Petitioner is the sole beneficiary of the policy and is entitled to recover upon it, if it is valid, and cannot prevail if the defense of fraud is established. Insurance Co. v. Bailey, supra; Cable v. United States Life Ins. Co., supra. The affidavit of defense raised no question as to petitioner’s standing as beneficiary of the policy, and, indeed, it expressly offered judgment in favor of the petitioner for the amount of the premiums in accordance with a tender previously made. Respondent’s petition for a hearing and determination in equity in advance of the trial of the action at law should have been denied. The decree of the Circuit Court of Appeals is reversed and the action is remanded to the 89995°—35-------25 386 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. District Court with direction to vacate its order for a hearing in equity and to proceed with the trial of the action at law. Reversed. ADAMOS v. NEW YORK LIFE INSURANCE CO. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 452. Argued December 3, 1934.—Decided January 7, 1935. Decided on the authority of Enelow v. New York Life Ins. Co., ante, p. 379. 71 F. (2d) 997, reversed. Certiorari * to review the affirmance of a final decree of the District Court, 5 F. Supp. 278, 280, canceling several insurance policies and providing for repayment of the premiums, which were tendered back by the insurance companies. The decree was rendered on an equitable defense set up under Jud. Code, § 274b, in an action by the beneficiary to collect the policies. Mr. Charles H. Sachs, with whom Mr. Louis Caplan was on the brief, for petitioner. Mr. William H. Eckert, with whom Mr. Louis H. Cooke was on the brief, for respondent. Mr. Chief Justice Hughes delivered the opinion of the Court. Petitioner brought this action at law as beneficiary of several policies of insurance issued by respondent. The policies were alleged to have been issued in April, 1932, upon the life of petitioner’s father, who died in July, 1932. The policies were to be incontestable after two * See Table of Cases Reported in this volume. ADAMOS v. N. Y. LIFE INS. CO. 387 386 Opinion of the Court. years from date of issue. The action was brought in a state court in Pennsylvania and was removed to the federal court in February, 1933. Respondent’s affidavit of defense set up as new matter that the insured had made false answers and declarations in his application with respect to a surgical operation he had undergone and to the treatment he had received by physicians and at hospitals; that the insured knew that these answers and declarations were false; and that they had been made by the insured “ fraudulently with the intent of deceiving the defendant into issuing to him the policies of insurance in litigation, when the facts were such that if he had answered said questions truthfully and had made a full and honest disclosure, the defendant would not have issued any of said policies, but would have declined his application.” Respondent tendered judgment for the amount of the premiums received by it, with interest, and prayed that the policies be cancelled. Petitioner replied, denying the. allegations of fraud. Respondent asked that the equitable issue raised by its affidavit of defense should be heard under § 274b of the Judicial Code (28 U. S. C. 398) “ by a chancellor according to equity procedure in advance of the trial by jury at law of any purely legal issues.” The application was granted over petitioner’s objection, and the issue of fraud was tried in equity. The District Judge decided that it was “ a very plain case of fraud upon the insurance company,” that the insured had “ falsely answered the questions as to his medical history,” and that “ these questions were all as to matters of fact within his knowledge.” 5 F. Supp. 278, 280, 1019. Decree was entered cancelling the policies and providing for the repayment of the premiums tendered. The decree was affirmed by the Circuit Court of Appeals, 71 F. (2d) 997, and this Court granted certiorari. 388 OCTOBER TERM, 1934. Syllabus. 293 U. S. What we have said in Endow v. New York Life Ins. Co., decided this day, ante, p. 379, is directly applicable here. The issue of fraud raised by respondent’s affidavit of defense was fully available in the action at law and the court erred in directing the trial of that issue in equity. The decree of the Circuit Court of Appeals is reversed and the cause is remanded to the District Court with direction to vacate its decree and to proceed with the trial of the action at law. Reversed. PANAMA REFINING CO. et al. v. RYAN et al. AMAZON PETROLEUM CORP, et al. v. RYAN et al. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. Nos. 135 and 260. Argued December 10, 11, 1934.—Decided January 7, 1935. 1. Upon review of a decree affirming the validity of an executive regulation, and refusing to enjoin its enforcement, rendered in a suit begun and ended below after the regulation had been withdrawn, the question of validity does not cease to be moot because the regulation has since been reinstated and the Government has .declared its intention to enforce it from the time of reinstatement. P. 412. 2. A suit to enjoin the enforcement of executive regulations is not made moot by amendments of the regulations, adopted pending the litigation, which continue in force the requirements complained of and present the same constitutional question as before. P. 413. 3. Section 9 (c) of the National Industrial Recovery Act, purporting to authorize the President to prohibit the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage in excess of the amounts permitted by state authority, attaches criminal penalties to every violation of such an order; and persons who would thus become subject to repeated penalties in carrying on their business are en- PANAMA REFINING CO. v. RYAN. 389 388 Syllabus. titled to invoke the equitable jurisdiction to restrain enforcement of the order if found unconstitutional. P. 414. 4. Assuming (not deciding) that Congress itself might have the power sought to be delegated to the President by § 9 (c) of the National Industrial Recovery Act—viz., the power to interdict the transportation in interstate and foreign commerce of petroleum and petroleum products produced or withdrawn from storage in excess of the amounts permitted by state authority—, the attempted delegation is plainly void, because the power sought to be delegated is legislative power, yet nowhere in the statute has Congress declared or indicated any policy or standard to guide or limit the President when acting under such delegation. Pp. 414 et seq. The declarations of § 1 of Title I of this Act are simply an introduction in broad outline, leaving the legislative policy as to particular subjects to be declared and defined, if at all, by subsequent sections. The Court can find nothing in § 1 or elsewhere in the A(?t which limits or controls the authority sought to be conferred by § 9 (c). The effort by ingenious and diligent construction to supply a criterion still permits such a breadth of authorized action as essentially to commit to the President the functions of a legislature rather than those of an executive or administrative officer executing a declared legislative policy. 5. The question whether the delegation is permitted by the Constitution is not answered by the argument that it should be assumed that the President has acted, or will act, for what he believes to be the public good. The point is not one of motives but of constitutional authority, for which the best of motives is not a substitute. P. 420. 6. If Congress can vest such legislative power in the President, it may vest it in any board or officer of its choice; and the power vested may concern not merely the transportation of oil or of oil produced in excess of what the States may allow; it may extend to transportation in interstate commerce of any commodity, with or without reference to state requirements; indeed, there would appear to be no ground for denying a similar prerogative of delegation with respect to other subjects of legislation. P. 420. 7. The principle forbidding Congress to abdicate, or to transfer to others, the essential legislative functions with which it is vested by Art. I, § 1, and Art. I, § 8, par. 18, of the Constitution, has been recognized by the Court in every case in which the question has been raised. P, 421. 390 OCTOBER TERM, 1934. Statement of the Case. 293 U. S. 8. Congress may lay down its policies and establish its standards and leave to selected instrumentalities the making of subordinate rules, within prescribed limits, and the determination of facts to which the policy, as declared by Congress, shall apply; but the constant recognition of the necessity and validity of such provisions, and the wide range of administrative authority which has been developed by means of them, cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained. P. 421. 9. The question is not as to the intrinsic importance of the particular statute involved, but of the constitutional processes of legislation which are an essential part of our system of Government. P. 430. 10. Both § 9 (c) and the Executive Order made in pursuance of it are in notable contrast with historic practice (as shown by many statutes and proclamations) by which declarations of policy are made by the Congress, and delegations are within the framework of that policy and have relation to facts and conditions tb be found and stated by the President in the appropriate exercise of the delegated authority. P. 431. 11. If from the extremely broad description contained in § 1 of the Act, and the widely different matters to which the section refers, it were possible to derive a statement of prerequisites to the President’s action under § 9 (c), it would still be necessary for the President to comply with those conditions and to show such compliance as the ground of his prohibition. P. 431. 12. If the citizen is to be punished for the crime of violating a legislative order of an executive officer, board or commission, due process of law requires that it shall appear that the order is within the authority of the officer, board or commission; and, if that authority depends on determinations of fact, those determinations must be shown. P. 432. 13. When the President is invested with legislative authority as the delegate of Congress in carrying out a declared policy, he necessarily acts under the constitutional restriction applicable to such a delegation. P. 433. 71 F. (2d) 1, 8, reversed. Certiorari * was granted in these two cases to review decrees of the court below which reversed decrees of the District Court enjoining federal officers in Texas from *See Table of Cases Reported in this volume. PANAMA REFINING CO. v. RYAN. 391 388 Argument for Petitioners. enforcing certain executive orders and regulations. 5 F. Supp. 639. Both bills challenged the constitutionality of § 9 (c) of the National Industrial Recovery Act and of orders made under it by the President and of regulations made under the President’s orders by the Secretary of the Interior. In one of the cases, No. 260, part of a Petroleum Code was attacked and defended in ignorance of the fact that it had been dropped when amendments of the Code were promulgated before the beginning of the suit. The bill in that case also challenged legislation and orders of the State curtailing the production of oil, and joined the State Railroad Commission, its members and other state officials as defendants; but this part of the case was severed and decided adversely to the plaintiffs by a three-judge court. See 5 F. Supp. 633, 634, 639. A detailed statement of both cases will be found in the opinion. Messrs. James N. Saye and F. W. Fischer, with whom Mr. W. Edward Lee was on the brief, for petitioners in No. 260. The bill states one cause of action against all of the defendants, both State and Federal officers. The three-judge court had jurisdiction of all the issues and should have decided them. Louisville & N. Ry. Co. v. Garnett, 231 U. S. 298. Petitioners are not engaged in interstate commerce, and their activities do not affect interstate commerce, except incidentally and remotely; their business is, therefore, not subject to regulation by the Federal Government. United Mine Workers v. Coronado Coal Co., 259 U. S. 407; Oliver Iron Mining Co. v. Lord, 262 U. S. 172; Gibbons v. Ogden, 9 Wheat. 1; Hope Natural Gas Co. v. Hall, 274 U. S. 284; Foster-Fountain Packing Co. v. Hay-del, 278 U. S. 1; Utah Power de Light Co. v. Pfost, 286 U. S. 165; Hammer n. Dagenhart, 247 U. S. 251; Kidd v. Pearson, 128 U. S. 1; Mobile County v. Kimball, 102 U. S. 692; Bailey v. Drexel Furniture Co., 259 U. S. 20; Em- 392 OCTOBER TERM, 1934. Argument for Petitioners. 293 U. S. players’ Liability Cases, 207 U. S. 463; Hill v. Wallace, 259 U. S. 44; Heisler v. Thomas Colliery Co., 260 U. S. 245; United Leather Workers n. Herbert, 265 U. S. 457. It has been specifically held that the production of oil is not interstate commerce, and that restriction of production, even though it indirectly diminish the amount of oil entering the channels of interstate commerce, is not such a direct interference with the free flow of interstate commerce as to be a violation of the commerce clause. Champlin Refining Co. v. Corporation Comm’n, 286 U. S. 210. It was never the intention of the framers of the Constitution that Congress should regulate the internal affairs of all businesses the products of which in the process of passing from producer or manufacturer to consumer, pass through the channels of interstate commerce. Such a distorted and unreasonable construction of the commerce clause would result in the destruction of our present dual form of Government. Shreveport Rate Case, 234 U. S. 342; Stockyards Cases, 258 U. S. 495; and the Grain Futures Act Case, 262 U. S. 1, distinguished. The National Industrial Recovery Act, and particularly § 9 (c), is void as an attempted delegation of legislative power to the President. Cooley, Const. Lim., 7th ed., 163; Field v. Clark, 143 U. S. 649; Butt field V; Stranahan, 192 U. S. 470; Union Bridge Co. v. United States, 204 U. S. 364; St. Louis & I. M. Ry. Co. v. Taylor, 210 U. S. 281; Mutual Film Corp. v. Industrial Comm’n, 236 U. S. 230. It will be noted that the entire enacting part of the Act, if it has an enacting clause, is contained in its first section. It is also interesting to note that the policies declared by Congress were nothing more than a reiteration of what has been the policy of the United States Government since it was founded. In brief, Congress has PANAMA REFINING GO. v. RYAN. 393 388 Argument for Petitioners. stated that it is its policy to do whatever can be done to relieve the existing depression, and, since it does not know what to do, it attempts, by § 3 of the Act, to give each industry power and authority to formulate and adopt, subject to the approval of the President, such laws as in the opinion of a majority of the various industries are best calculated to accomplish that objective. We do not believe it can be said that merely because acts of Congress become enforceable when approved by the President, acts of the various industries of the country, acting instead of Congress, can become laws when approved by the President. There could be no clearer delegation of legislative power than § 9 (c). The chief and possibly the entire purpose of the commerce clause was, so far as interstate commerce was concerned, to empower the federal authorities to prevent the States from interfering with the freedom of commercial intercourse between themselves or with foreign nations. Willoughby, The Constitution, vol. 2, 2d ed., p. 721, §415. It should be borne in mind that the right of intercourse between the States is a natural and inherent right. Gibbons v. Ogden, 9 Wheat. 1. The facilities of interstate commerce may not be refused by Congress to commodities not dangerous to transport and of such a character that their use or consumption will do no injury, moral or physical, to anyone, simply upon the ground that they have been produced or manufactured in ways or under conditions objectionable to Congress. Willoughby, The Constitution, vol. 2, 2d ed., p. 994, § 592; Hammer v. Dagenhart, 247 U. S. 251. Distinguishing United States v. Hill, 248 U. S. 420; Champion v. Ames, 188 U. S. 321 ; Hipolite Egg Co. v. United States, 220 U. S. 45; McDermott v. Wisconsin, 228 U. S. 115; Hoke v. United States, 227 U. S. 308; Caminetti v. 394 OCTOBER TERM, 1934. Argument for Petitioners. 293 U. S. United States, 246 U. S. 470; Rupert v. United States, 181 Fed. 87; Brooks n. United States, 267 U. S. 432; Capital City Dairy Co. v. Ohio, 183 U. S. 238. Oil produced in excess of the amount fixed by the state law remains the property of the producer. If the producer has violated a valid law of the State, he is subject to the penalties of the law. Prohibiting shipment of the oil in interstate commerce is merely denying the use of the instrumentalities of commerce to transport a recognized commodity of commerce, the title to which is undisputed. There is no evidence in the record that it would unduly burden interstate commerce; and we all know that the transporting companies are in dire need of business and the revenue derived therefrom. Therefore, it is quite obvious that an Act of Congress prohibiting the transportation of such oil in interstate commerce is an attempt on the part of Congress to aid the State in the enforcement of its conservation laws, and thus regulate the production of petroleum—a local matter over which the National Government has no jurisdiction. The National Industrial Recovery Act is void because it is an attempt by the National Government to usurp powers reserved to the States and the people by the Tenth Amendment. The national emergency, brought about by the financial depression, did not bestow upon Congress the power to enact the National Industrial Recovery Act. Emergencies create no power. In emergencies, in panics, in times of peril, when people stampede, when sober judgment is submerged, when expediency seeks to triumph over righteousness and correct principles, then is when we need the safeguards of our Constitution. Ex parte Milligan, 4 Wall. 2; Wilson v. New, 243 U. S. 332; Home Bldg, de Loan Assn. v. Blaisdell, 290 U. S. 398; Nebbia v. New York, 291 U. S. 502. PANAMA REFINING CO. v. RYAN. 395 388 Argument for Petitioners. Article I, § 8, of the Constitution, which empowers the Congress to declare war, to raise and support armies, to provide and maintain a navy, and to make laws which shall be necessary and proper for carrying into effect the foregoing powers, does not authorize the Congress to require petitioners to keep their oil under ground until such time as the National Government may need it in offensive or defensive warfare, without paying petitioners just compensation for it. Section 4 of Article III of the Code of Fair Competition for the Petroleum Industry is void. Regulations IV and VII of the Secretary of the Interior are null and void. Mr. F. S. Fischer for petitioner in No. 135. Title I of the Act must be rejected in its entirety because the provisions relating to interstate and foreign commerce are so interrelated with and dependent upon those provisions regulating intrastate commerce that they cannot be separated therefrom. Employers’ Liability Cases, 207 U. S. 490; Pollock v. Farmers Loan & Trust Co., 158 U. S. 636; United Leather Workers v. Herkert, 265 U. S. 457; Field v. Barber Asphalt Co., 194 U. S. 618. Section 9 (c) is unconstitutional. Congress is without power to forbid the transportation of ordinary and harmless commodities in interstate commerce; or to enact an interstate and foreign commerce regulation dependent on the action of the several States. Distinguishing: Champion v. Ames, 188 U. S. 321; Hipolite Egg Co. v. United States, 220 U. S. 45; Caminetti v. United States, 242 U. S. 470; Brooks v. United States,*267 U. S. 432; Clark Distilling Co. v. Western Maryland Ry. Co., 242 U.S. 311; and relying on: Knickerbocker Ice Co. v. Stewart, 253 U. S. 156; Panama Refining Co. v. Ryan, 5 F. Supp. 639; Hammer v. Dagenhart, 247 U. S. 251; Vance v. Vandercook, 170 U. S. 442; Kiddy. Pear son, 128 U.S. 1. 396 OCTOBER TERM, 1934. Argument for Petitioners. 293 U. S. Section 9 (c) is also unconstitutional because Congress has laid down no rule or criterion to guide or limit the President in the orders that he may promulgate under it. It leaves him or his nominees free to promulgate and enforce any order that they may think necessary, and without any requirement of uniformity or applicability throughout the Union. The President, or his nominees, may subject any violator to criminal procedure. Thus the Act delegates to the President not only the power to regulate interstate and foreign commerce at his discretion, but it also delegates to him and his nominees the power to create and define offenses against the United States. In re Rahrer, 140 U. S. 545; Field n. Clark, 143 U. S. 649; Buttfield v. Stranahan, 192 U. S. 470; Interstate Commerce Comm’n v. Goodrich Transit Co., 224 U. S. 194; Butte City Water Co. v. Baker, 196 U. S. 119; Knickerbocker Ice Co. v. Stewart, 253 U. S. 156; Donnelly v. United States, 276 U. S. 512; Interstate Commerce Comm’n v. Brimson, 155 U. S. 4; United States v. Maid, 116 Fed. 650; United States v. Grimaud, 220 U. S. 506; United States v. Cohen Grocery Co., 255 U. S. 88. Section 9 (c) is too indefinite and uncertain as a penal statute. United States v. 11,150 Pounds of Butter, 195 Fed. 663; Todd v. United States, 158 U. S. 282. Regulations IV, V, and VII are invalid and unenforceable. United States v. 11,150 Pounds of Butter, supra. The production of oil and the refining of the same is not commerce, and the purchase, transportation, and storage of oil is not interstate commerce until the same is tendered to a carrier for Interstate transportation. Champlin Refining Co. n. Corporation Comm’n, 286 U. S. 210; Hammer v. Dagenhart, 247 U. S. 251. Therefore, the regulations under consideration have no relation to the Act of Congress, unless it may be said that by compliance with the regulations the agents of the Department of the Interior PANAMA REFINING CO. v. RYAN. 397 388 Argument for Petitioners. charged with the enforcement of the Act could better enforce it. But we have not yet reached that stage of Government where citizens can be compelled by regulations to assist the officers of the Government in detecting crime. It will be seen that these regulations apply to and affect only the East Texas and Oklahoma City oil fields. If they have any support, it must be in the commerce clause, but the rules must be equal and apply uniformly throughout the Union. Kidd v. Pearson, 128 U. S. 1; Knickerbocker Ice Co. v. Stewart, supra; Panama Refining Co. v. Ryan, supra. The purpose of the attacked regulations in requiring reports and examining books and records, and making inspections of the physical properties, is to obtain evidence against those who might transport the forbidden articles in interstate and foreign commerce. They are therefore repugnant to the Fourth and Fifth Amendments. Boyd n. United States, 116 U. S. 616; Counselman v. Hitchcock, 142 U. S. 547. There is no power in the Federal Government, over and above the powers delegated to it in the Constitution, to regulate the production of articles that are of general use throughout the Nation. Kansas v. Colorado, 206 U. S. 89. Does an emergency, such as Congress in the preamble of this Act .declared to exist, create such power in the Federal Government that Congress and the President may set aside the limitations of the Constitution by which they were intended to be restrained, and thereby dictate to the citizens of a State how much petroleum they can produce during any period, and the minimum wage that they shall pay their employees while producing it, and subject such citizens to criminal prosecutions for the violation of any order made by the President in pursuance of such purpose? It has been repeatedly held by this Court that an emergency does not create power and that even dur- 398 OCTOBER TERM, 1934. Argument for Respondents. 293 U. S. ing a state of war, neither Congress nor the President can exceed the limitations placed upon them by the Constitution, nor deprive a citizen of those rights guaranteed to him by it. Ex parte Milligan, 4 Wall. 2, 100; United States v. Lee, 106 U. S. 196; United States v. Cohen Grocery Co., 255 U. S. 86; Home Bldg. & Loan Assn. n. Blaisdell, 290 U. S. 398. “To what purposes are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?” Marbury v. Madison, 1 Cranch 137, 176. “The instrument was not intended to provide merely for the exigencies of a few years, but was to endure for a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence.” Martin v. Hunter, 1 Wheat. 305, 326. Assistant Attorney General Stephens and Mr. L. T. Martineau, Jr., with whom Solicitor General Biggs and Messrs. Carl McFarland, M. S. Huberman, Charles H. Weston, A. H. Feller, Nathan R. Margold, and Charles Fahy were on the brief, for respondents. The commerce clause vests Congress with plenary power to regulate commerce among the several States and with foreign nations, and this means power to enact all appropriate legislation for the protection and advancement of that commerce. Texas & N. O. R. Co. v. Brotherhood of Clerks, 281 U. S. 548, 570. The regulation may extend to any and all kinds of activity which substantially burden or affect such commerce (Swift & Co. v. United States, 196 U. S. 375; Minnesota Rate Cases, 230 U. S. 352; Houston, E. & W. T. Ry. Co. v. United States, 234 U. S. 342; Stafford n. Wallace, 258 U. S. 495; Chicago Board of Trade n. Olsen, 262 U. S. 1) even though such activity is in itself not commerce at all (United States v. Ferger, 250 U. S. 199; Coronado Coal Co. v. United PANAMA REFINING CO. v. RYAN. 399 388 Argument for Respondents. Mine Workers, 268 U. S. 295). Moreover, it is immaterial whether the activity has occurred wholly within a State before movement in interstate commerce has commenced. Local 167 v. United States, 291 U. S. 293; United States v. Reading Co., 226 U. S. 324; Dahnke-Walker Co. v. Bondurant, 257 U. S. 282; Lemke v. Farmers Grain Co., 258 U. S. 50; Coronado Coal Co. v. United Mine Workers, 268 U. S. 295. The transactions thus subject to regulation by Congress may often include matters which may also be regulated by the States within their police power or taxed locally. In such cases, if the state regulation does not burden interstate commerce or in any way conflict with the federal law, both federal and state regulations may be in force at the same time. Cf. Bacon v. Illinois, 227 U. S. 504, and Dickson v. Uhlmann Grain Co., 288 U. S. 188, with Chicago Board of Trade v. Olsen, supra; Minnesota v. Blasius, 290 U. S. 1, with Stafford v. Wallace, supra; Oliver Iron Mining Co. v. Lord, 262 U. S. 172, with Coronado Coal Co. v. United Mine Workers, 268 U. S. 295. If conflict should arise, however, or if Congress has manifested any intention completely to occupy the field, state law must yield to the paramount federal power. Minnesota Rate Cases, supra; Houston, E. & W. T. Ry. Co. v. United States, supra; Florida v. United States, 292 U. S. 1; Adams Express Co. v. Croninger, 226 U. S. 491. “ The rule which marks the point at which state taxation or regulation becomes permissible ” does not necessarily prevent “ interference by Congress in cases where such interference is deemed necessary for the protection of commerce among the States.” Swift & Co. v. United States, supra, p. 400; Stafford n. Wallace, supra, p. 525. Such cases as Kidd v. Pearson, 128 U. S. 1; Heisler v. Thomas Colliery Co., 260 U. S. 245; Oliver Iron Mining Co. v. Lord, supra; Hope Natural Gas Co. v. Hall, 274 U. S. 284; Utah Power Light Co. v. Pfost, 286 U. S. 400 OCTOBER TERM, 1934. Argument for Respondents. 293 U. S. 165; and Chassaniol v. Greenwood, 291 U. S. 584, which define the permissible limits of action by the States, are, therefore, not applicable. Thus the power of the States to restrict the production of oil (Champlin Refining Co. v. Corporation Comm’n, 286 U.S. 210) does not preclude the exercise of federal power over the same subject matter if the conditions surrounding the production of oil afford a reasonable basis for the view that federal control of petroleum production is necessary for the regulation of interstate commerce in petroleum and its products. The production-control provisions of the Petroleum Code seek to stabilize the interstate market in petroleum and its products through limitation of the production of petroleum to the national consumer demand. States are to apportion the share of the national demand assigned to them among the individual wells and properties within the State. Production in excess of quotas assigned by a State is made a violation of the Code. This case squarely presents the issue as to whether the Federal Government may, under the commerce clause, regulate the amount of oil produced throughout the Nation. The determination of this issue depends essentially upon questions of economic fact involving a consideration of the structure of the petroleum industry, the conditions governing the production of oil, and the effect of such conditions upon interstate commerce in petroleum and its products. We are to consider the national scope and importance of the industry; interstate commerce and competition between producing areas; dependence upon oil of agencies of commerce; movement of petroleum in interstate commerce—the pipe-line system; movements from East Texas; intermingling of crude oil in inter- and intrastate commerce; intermingling of petroleum products in inter-and intrastate commerce ; interstate competition in petro- PANAMA REFINING CO. v. RYAN. 401 388 Argument for Respondents. leum products; corporate integration of the industry; and sensitivity of market structure. A combination of singular geological, legal, and economic factors governing the production of crude oil in this country has compelled excessive production. Producers in the “ stripper ” or pumping well areas were drastically affected by the collapse of the price structure resulting from the excessive production of the flush fields. Prices in the “ stripper ” well areas were driven far below the cost of producing oil from such wells, causing many of them to be abandoned, with the permanent loss of oil reserves. Cheap oil from the flush fields deprived many “ stripper ” well areas of their normal interstate and foreign markets and threatened to monopolize the entire market of most of the “ stripper ” well areas in the country. The “ stripper ” fields contain a large proportion of the total oil reserves of the nation; the shutting down of these fields would involve a serious loss of oil reserves. The fruitless efforts of the industry and of the States to control the competitive conditions attending the production of oil demonstrate the interstate unity of the oil industry and the need for federal control. Unrestricted production from the flush fields has had a direct and substantial effect upon interstate commerce in petroleum and its products: (1) It has caused violent fluctuations throughout the country in the price of crude oil and its products, and (2) it has absorbed part of the market of the “ stripper ” well fields, thus diverting the normal flow of oil from the “ stripper ” areas. Such direct and substantial effects upon interstate commerce afford sufficient basis for the federal control of oil production embodied in the Petroleum Code. This Court has held that local activity which directly affects the price of commodities moving in interstate commerce may be regulated by Congress. Chicago Board of Trade v. Olsen, 262 U. S. 1 ; United States v. Patten, 226 89995°—35------26 402 OCTOBER TERM, 1934. Argument for Respondents. 293 U. S. U. S. 525. See Standard Oil Co. v. United States, 283 U. S. 163, 169. Local acts, such as production or manufacture, which occur before interstate commerce has commenced, are nevertheless subject to the federal commerce power when they directly affect interstate commerce. Coronado Coed Co. v. United Mine Workers, 268 U. S. 295; Standard Oil Co. v. United States, supra, p. 169. Decisions of this Court have sustained regulations of local acts which affected interstate commerce much less directly than does the volume of oil produced in the flush fields. Stafford v. Wallace, 258 U. S. 495; Colorado v. United States, 271 U. S. 153; Florida v. United States, 292 U. S. 1; United States v. Ferger, 250 U. S. 199; Coronado Coal Co. v. United Mine Workers, 268 U. S. 295. See Northern Securities Co. v. United States, 193 U. S. 197, 337. The Federal Government may properly seek to protect the economic welfare of an industry which is predominantly interstate. Where, as in the case of the oil industry, regulation of the purely interstate aspects of the business cannot be accomplished without control of local acts, such as production, regulation of such local acts is within the federal commerce power. Minnesota Rate Cases, 230 U. S. 352; Houston, E. & W. T. Ry. Co. v. United States, 234 U. S. 342. This Court has recognized that the practical course of interstate business has expanded with the growth of the country. Stafford v. Wallace, supra, pp. 518-519. With the development of industries organized on a national scale and the extraordinary increase in the facilities of transportation, regulation of many intrastate aspects of such industries may be necessary for the protection of interstate commerce. The purpose of Congress in the Recovery Act was to remove obstructions to interstate and foreign commerce resulting from the general industrial depression. See Wilson v. New, 243 U. S. 332, 348. The evident purpose of the Act is sufficient to distinguish it from the Child PANAMA REFINING CO. v. RYAN. 403 388 Argument for Respondents. Labor Law involved in Hammer v. Dagenhart, 247 U. S. 251. The production-control provisions of the Petroleum Code do not involve any infringement of the rights guaranteed by the due process clause of the Fifth Amendment. Nebbia v. New York, 291 U. S. 502, 525; Champlin Refining Co9. v. Corporation Comm’n, 286 U. S. 210. The extent to which Congress is permitted to delegate authority must be determined essentially by the necessities of practical administration. Wayman v. Southard, 10 Wheat. 1; Field v. Clark, 143 U. S. 649; Buttfield v. Stranahan, 192 U. S. 470; Union Bridge Co. v. United States, 204 U. S. 364; United States v. Grimaud, 220 U. S. 506; Hampton & Co. v. United States, 276 U. S. 394. Congress was confronted with the alternative either of not legislating effectively or of making a broad delegation. The phrase “ fair competition ” in the Recovery Act is given substance and meaning by the context in which it is used. See New York Central Securities Corp. v. United States, 287 U. S. 12, 24, 25; Federal Radio Comm’n v. Nelson Bros. Co., 289 U. S. 266, 285. Production in excess of quotas assigned by a state agency pursuant to the provisions of the Petroleum Code is “ unfair ” {Federal Trade Comm’n v. Keppel & Bro., 291 U. S. 304) and concerns a competition ” and may, therefore, be prohibited in a code of fair competition approved under the Recovery Act. Section 9 (c) is within the commerce power. Prohibition of the use of interstate commerce as an instrumentality for the promotion of violation of state laws, or for the furtherance of injurious or harmful results in other States, has been consistently upheld. Clark Distilling Co. v. Western Maryland Ry. Co., 242 U. S. 311; Brooks v. United States, 267 U. S. 432; Champion v. Ames, 188 U. S. 321. Distinguishing Hammer v. Dagenhart, 247 U. S. 251. 404 OCTOBER TERM, 1934. Argument for Respondents. 293 U. S. Section 9 (c) is not an unconstitutional delegation of legislative authority. The President’s discretion under this section is limited to determining when the prohibition shall take effect. Delegations of this character have uniformly been upheld. Hampton & Co. v. United States, 276 U. S. 394; Field v. Clark, 143 U. S. 649; United States v. Grimaud, 220 U. S. 506. The general,policies and purposes of the Recovery Act, of which § 9 (c) is an integral part, govern the President’s determination of the time or times during which the prohibition against the transportation of “ hot ” oil shall be applied. Neither in the Grimaud case nor in the Embargo statutes was there any express requirement for the stating of findings. If it be said that by the phrases “ in the public interest ” or “ insuring the protection ” of reservations there is a requirement that the Executive shall in his own mind make a finding, this is not different in substance from requiring him to act according to a standard. And if it be urged that the phrases in “ the public interest ” or “ as will insure the objects of such reservations ” fix a standard guiding the Executive in the determination of whether the regulation or embargo shall go into effect, then it is to be answered that in the present statute, if it be read as a whole and § 9 (c) read with the policy of the Act, there is also a standard. Section 9 (c) sets forth explicitly what may be prohibited. The only delegation there relates to when the pro-hibition shall be in effect. The standards to govern the President’s action under § 9 (c) are found in the declaration of policy in § 1; and the test which the President must apply in determining his action under § 9 (c) is whether it will in his judgment serve to effectuate these policies. He is as much under a duty to conform his PANAMA REFINING CO. v. RYAN. 405 388 Opinion of the Court. action to these standards as he would be if § 9 (c) had expressly so stated. United States v. Delaware & Hudson Co., 213 U. S. 366, 407. The statute does not require the President to hold a hearing, to make formal findings, or to publish his reasons for exercising his discretion. The validity or invalidity of a delegation of legislative power does not depend upon presence or absence of a statutory requirement that the President or other executive officer make a specified finding before exercising the authority delegated. United States v. Grimaud, 220 U. S. 506. In the very nature of the office of President he is to act, and it may properly be assumed that he will act, “ in the public interest ” or in accordance with the principles and the policy of the particular legislation under which he does act. To require, as a condition to the validity of a statute, that the President make a specified finding, such as that he finds a particular requirement 11 in the public interest ” or “ necessary and proper,” is a mere formality. It is submitted that the actual exercise of the President’s power under § 9 (c) is and necessarily involves a finding as fully as though he had stated some formal finding in the Executive Order putting 9 (c) into effect. Mr. Chief Justice Hughes delivered the opinion of the Court. On July 11, 1933, the President, by Executive Order, prohibited “ the transportation in interstate and foreign commerce*of petroleum and the products thereof produced or withdrawn from storage in excess of the amount permitted to be produced or withdrawn from storage by any State law or valid regulation or order prescribed thereunder, by any board, commission, officer, or other duly 406 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. authorized agency of a State.” 1 This action was based on § 9 (c) of Title I of the National Industrial Recovery Act of June 16,1933, 48 Stat. 195, 200, 15 U. S. C. Tit. I, § 709 (c). That section provides: “ Sec. 9 . . . “(c) The President is authorized to prohibit the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage in excess of the amount permitted to be produced or withdrawn from storage by any state law or valid regulation or order prescribed thereunder, by any board, commission, officer, or other duly authorized agency of a State. Any violation of any order of the President issued under the provisions of this subsection shall be punishable by fine of not to exceed $1,000, or imprisonment for not to exceed six months, or both.” On July 14, 1933, the President, by Executive Order, authorized the Secretary of the Interior to exercise all the powers vested in the President “ for the purpose of en- 1 The full text of the Executive Order of July 11, 1933, is as follows: “Executive Order “ Prohibition of Transportation in Interstate and Foreign Commerce of Petroleum and the Products thereof unlawfully produced or withdrawn from storage. “ By virtue of the authority vested in me by the Act of Congress entitled ‘An Act To encourage national industrial recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for other purposes,’ approved June 16, 1933, (Public No. 67, 73d Congress), the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage in excess of the amount permitted to be produced or withdrawn from storage by any State law or valid regulation or order prescribed thereunder, by any board, commission, officer, or other duly authorized agency of a State, is hereby prohibited. Franklin D. Roosevelt.” “ The Wliite House, July 11, 1933,” 388 PANAMA REFINING CO. v. RYAN. Opinion of the Court. 407 forcing Section 9 (c) of said act and said order ” of July 11, 1933, “ including full authority to designate and appoint such agents and to set up such boards and agencies as he may see fit, and to promulgate such rules and regulations as he may deem necessary.” 2 That order was made under § 10 (a) of the National Industrial Recovery Act, 48 Stat. 200, 15 U. S. C. 710 (a), authorizing the President “ to prescribe such rules and regulations as may be necessary to carry out the purposes” of Title I of the National Industrial Recovery Act and providing that “ any violation of any such rule or regulation shall be punishable by fine of not to exceed $500, or imprisonment for not to exceed six months, or both.” On July 15, 1933, the Secretary of the Interior issued regulations to carry out the President’s orders of July 11 and 14, 1933. These regulations were amended by orders 2 The Executive Order of July 14, 1933, is as follows: “Executive Order “Prohibition of Transportation in Interstate and Foreign Commerce of Petroleum and the Products thereof unlawfully produced or withdrawn from storage. “ By virtue of the authority vested in me by the Act of Congress entitled ‘An Act To encourage national industrial recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for other purposes/ approved June 16, 1933, (Public No. 67, 73d Congress), in order to effectuate the intent and purpose of the Congress as expressed in Section 9 (c) thereof, and for the purpose of securing the enforcement of my order of July 11, 1933, issued pursuant to said act, I hereby authorize the Secretary of the Interior to exercise all the powers vested in me, for the purpose of enforcing Section 9 (c) of said act and said order, including full authority to designate and appoint such agents and to set up such boards and agencies as he may see fit, and to promulgate such rules and regulations as he may deem necessary. Franklin D. Roosevelt.” “ The White House, July 14, 1933.” 408 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. of July 25, 1933, and August 21, 1933, prior to the commencement of these suits. Regulation IV provided, in substance, that every producer of petroleum should file a monthly statement under oath, beginning August 15, 1933, with the Division of Investigations of the Department of the Interior, giving information with respect to the residence and post-office address of the producer, the location of his producing properties and wells, the allowable production as prescribed by state authority, the amount of daily production, all deliveries of petroleum, and declaring that no part of the petroleum or products produced and shipped had been produced or withdrawn from storage in excess of the amount permitted by state authority. Regulation V required every purchaser, shipper (other than a producer), and refiner of petroleum, including processors, similarly to file a monthly statement under oath, giving information as to residence and postoffice address, the place and date of receipt, the parties from whom and the amount of petroleum received and the amount held in storage, the disposition of the petroleum, particulars as to deliveries, and declaring, to the best of the affiant’s information and belief, that none of the petroleum so handled had been produced or withdrawn from storage in excess of that allowed by state authority. Regulation VII provided that all persons embraced within the terms of § 9 (c) of the Act, and the Executive Orders and regulations issued thereunder, should keep “ available for inspection by the Division of Investigations of the Department of the Interior adequate books and records of all transactions involving the production and transportation of petroleum and the products thereof.” On August 19, 1933, the President, by Executive Order, stating that his action was taken under Title I of the National Industrial Recovery Act, approved a “ Code of PANAMA REFINING CO. v. RYAN. 409 388 Opinion of the Court. Fair Competition for the Petroleum Industry.” 8 By a further Executive Order of August 28, 1933, the President designated the Secretary of the Interior as Administrator, and the Department of the Interior as the Federal Agency, to exercise on behalf of the President all the powers vested in him under that Act and Code. Section 3 (f) of Title I of the National Industrial Recovery Act provides that when a code of fair competition has been approved or prescribed by the President under that title, “ any violation of any provision thereof in any transaction in or affecting interstate or foreign commerce shall ’The Executive Order of August 19, 1933, is as follows: “Executive Order “ Code of Fair Competition for the Petroleum Industry. “An application having been duly made, pursuant to and in full compliance with the provisions of Title I of the National Industrial Recovery Act, approved June 16, 1933, for my approval of a Code of Fair Competition for the Petroleum Industry, and hearings having been held thereon and the Administrator having rendered his report together with his recommendations and findings with respect thereto, and the Administrator having found that the said Code of Fair Competition complies in all respects with the pertinent provisions of Title I of said Act and that the requirements of clauses (1) and (2) of subsection (a) of Section 3 of the said Act have been met: “Now, Therefore, I, Franklin D. Roosevelt, President of the United States, pursuant to the authority vested in me by Title I of the National Industrial Recovery Act, approved June 16, 1933, and otherwise, do adopt and approve the report, recommendations and findings of the Administrator and do order that the said Code of Fair Competition be and it is hereby approved. Franklin D. Roosevelt.” “Approval Recommended: Hugh S. Johnson, Administrator. “ The White House, August 19, 1933.” 410 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. be a misdemeanor, punishable by fine of not more than $500 for each offense, each day of said violation to be deemed a separate offense.” This “Petroleum Code ” (in its original form and as officially printed) provided in § 3 of Article III relating to “ Production,” for estimates of “ required production of crude oil to balance consumer demand for petroleum products ” to be made at intervals by the Federal Agency. This “ required production ” was to be “ equitably allocated ” among the several States. These estimates and allocations, when approved by the President, were to be deemed to be “ the net reasonable market demand,” and the allocations were to be recommended “ as the operating schedules for the producing States and for the industry.” By § 4 of Article III, the subdivision, with respect to producing properties, of the production allocated to each State, was to be made within the State. The second paragraph of that section further provided: “ If any subdivision into quotas of production allocated to any State shall be made within a State any production by any person, as person is defined in Article I, Section 3 of this code, in excess of any such quota assigned to him, shall be deemed an unfair trade practice and in violation of this code.” By an Executive Order of September 13, 1933, modifying certain provisions of the Petroleum Code, this second paragraph of § 4 of Article III was eliminated. It was reinstated by Executive Order of September 25, 1934. These suits were brought in October, 1933. In No. 135, the Panama Refining Company, as owner of an oil refining plant in Texas, and its co-plaintiff, a producer having oil and gas leases in Texas, sued to restrain the defendants, who were federal officials, from enforcing Regulations IV, V and VII prescribed by the Secretary of the Interior under § 9 (c) of the National Industrial PANAMA REFINING CO. v. RYAN. 411 388 Opinion of the Court. Recovery Act. Plaintiffs attacked the validity of § 9 (c) as an unconstitutional delegation to the President of legislative power and as transcending the authority of the Congress under the commerce clause. The regulations, and the attempts to enforce them by coming upon the properties of the plaintiffs, gauging their tanks, digging up pipe lines, and otherwise, were also assailed under the Fourth and Fifth Amendments of the Constitution. In No. 260, the Amazon Petroleum Corporation, and its co-plaintiffs, all being oil producers in Texas and owning separate properties, sued to enjoin the Railroad Commission of that State, its members and other state officers, and the other defendants who were federal officials, from enforcing the state and federal restrictions upon the production and disposition of oil. The bill alleged that the legislation of the State and the orders of its commission in curtailing production violated the Fourteenth Amendment of the Federal Constitution. As to the federal requirements, the bill not only attacked § 9 (c) of the National Industrial Recovery Act, and the regulations of the Secretary of the Interior thereunder, upon substantially the same grounds as those set forth in the bill of the Panama Refining Company, but also challenged the validity of provisions of the Petroleum Code. While à number of these provisions were set out in the bill, the contest on the trial related to the limitation of production through the allocation of quotas pursuant to § 4 of Article III of the Code. As the case involved the constitutional validity of orders of the state commission and an interlocutory injunction was sought, a court of three judges was convened under § 266 of the Judicial Code (28 U. S. C. 380). That court decided that the cause of action against the federal officials was not one within § 266 but was for the consideration of the District Judge alone. The parties agreed that the causes of action should be severed and that each cause 412 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. should be submitted to the tribunal having jurisdiction of it. Hearing was had both on the applications for interlocutory injunction and upon the merits. The court of three judges, sustaining the state orders, denied injunction and dismissed the bill as against the state authorities. 5 F. Supp. 633, 634, 639. In both cases against the federal officials, that of the Panama Refining Co. and that of the Amazon Petroleum Corp., heard by the District Judge, a permanent injunction was granted. 5 F. Supp. 639. In the case of the Amazon Petroleum Corp., the court specifically enjoined the defendants from enforcing § 4 of Article III of the Petroleum Code, both plaintiffs and defendants, and the court, being unaware of the amendment of September 13, 1933. The Circuit Court of Appeals reversed the decrees against the federal officials and directed that the bills be dismissed. 71 F. (2d) 1, 8. The cases come here on writs of certiorari granted on October 8, 1934. First. The controversy with respect to the provision of § 4 of Article III of the Petroleum Code was initiated and proceeded in the courts below upon a false assumption. That assumption was that this section still contained the paragraph (eliminated by the Executive Order of September 13, 1933) by which production in excess of assigned quotas was made an unfair practice and a violation of the Code. Whatever the cause of the failure to give appropriate public notice of the change in the section, with the result that the persons affected, the prosecuting authorities, and the courts, were alike ignorant of the alteration, the fact is that the attack in this respect was upon a provision which did not exist. The Government’s announcement that, by reason of the elimination of this paragraph, the Government “ cannot, and therefore it does not intend to, prosecute petitioners or other producers of oil in Texas, criminally or otherwise, 388 PANAMA REFINING CO. v. RYAN. Opinion of the Court. 413 for exceeding, at any time prior to September 25, 1934, the quotas of production assigned to them under the laws of Texas,” but that if “ petitioners, or other producers, produce in excess of such quotas after September 25, 1934, the Government intends to prosecute them,” cannot avail to import into the present case the amended provision of that date.4 The case is not one where a subsequent law is applicable to a pending suit and controls its disposition.5 When this suit was brought, and when it was heard, there was no cause of action for the injunction sought with respect to the provision of § 4 of Article III of the Code; as to that, there was no basis for real controversy. See California v. San Pablo, 149 U. S. 308, 314; United States v. Alaska Steamship Co., 253 U. S. 113, 116; Barker Co. v. Painters’ Union, 281 U. S. 462. If the Government undertakes to enforce the new provision, the petitioners, as well as others, will have an opportunity to present their grievance, which can then be considered, as it should be, in the light of the facts as they will then appear. For this reason, we pass to the other questions presented and we express no opinion as to the interpretation or validity of the provisions of the Petroleum Code. Second. Regulations IV, V and VII, issued by the Secretary of the Interior prior to these suits, have since been amended. But the amended regulations continue sub- 4 The Government states that although the second paragraph of § 4 of Article III was a part of the Code for a short period prior to September 13, 1933, no legal basis exists for prosecution for production in Texas during that period. “See United States v. The Schooner Peggy, 1 Cranch 103, 109, 110; Dinsmore v. Southern Express Co., 183 U. S. 115, 120; Crozier v. Krupp, 224 U. S. 290, 302; Gulf, C. & S. F. Ry. Co. v. Dennis, 224 U. S. 503, 507; Watts, Watts & Co. v. Unione Austriaca, 248 U. S. 9, 21; Duplex Printing Press Co. v. Deering, 254 U. S. 443, 464; American Steel Foundries v. Tri-City Council, 257 U. S. 184, 201; Texas Co. v. Brown, 258 U. S. 466, 474. 414 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S, stantially the earlier requirements, and expand them. They present the same constitutional questions, and the cases as to these are not moot. Southern Pacific Co. v. Interstate Commerce Comm’n, 219 U. S. 433, 452; Southern Pacific Terminal Co. v. Interstate Commerce Comm’n, 219 U. S. 498, 514-516; McGrain v. Daugherty, 273 U. S. 135, 181, 182. The original regulations of July 15, 1933, as amended July 25, 1933, and August 21, 1933, were issued to enforce the Executive Orders of July 11 and July 14, 1933. The Executive Order of July 11, 1933, was made under § 9 (c) of the National Industrial Recovery Act, and the Executive Order of July 14, 1933, under § 10 (a) of that Act, authorizing the Secretary of the Interior to promulgate regulations, was for the purpose of enforcing § 9 (c) and the Executive Order of July 11, 1933. The amended regulations have been issued for the same purpose. The fundamental question as to these regulations thus turns upon the validity of § 9 (c) and the executive orders to carry it out. Third. The statute provides that any violation of any order of the President issued under § 9 (c) shall be punishable by fine of not to exceed $1,000, or imprisonment for not to exceed six months, or both. We think that these penalties would attach to each violation, and in this view the plaintiffs were entitled to invoke the equitable jurisdiction to restrain enforcement, if the statute and the executive orders were found to be invalid. Philadelphia Co. v. Stimson, 223 U. S. 605, 620, 621; Terrace v. Thompson, 263 U. S. 197, 214^216; Hygrade Provision Co. v. Sherman, 266 U. S. 497, 499, 500. Fourth. Section 9 (c) is assailed upon the ground that it is an unconstitutional delegation of legislative power. The section purports to authorize the President to pass a prohibitory law. The subject to which this authority relates is defined. It is the transportation in interstate and 388 PANAMA REFINING CO. v. RYAN. Opinion of the Court. 415 foreign commerce of petroleum and petroleum products which are produced or withdrawn from storage in excess of the amount permitted by state authority. Assuming for the present purpose, without deciding, that the Congress has power to interdict the transportation of that excess in interstate and foreign commerce, the question whether that transportation shall be prohibited by law is obviously one of legislative policy. Accordingly, we look to the statute to see whether the Congress has declared a policy with respect to that subject; whether the Congress has set up a standard for the President’s action; whether the Congress has required any finding by the President in the exercise of the authority to enact the prohibition. Section 9 (c) is brief and unambiguous. It does not attempt to control the production of petroleum and petroleum products within a State. It does not seek to lay down rules for the guidance of state legislatures or state officers. It leaves to the States and to their constituted authorities the determination of what production shall be permitted. It does not qualify the President’s authority by reference to the basis, or extent, of the State’s limitation of production. . Section 9 (c) does not state whether, or in what circumstances or under what conditions, the President is to prohibit the transportation of the amount of petroleum or petroleum products produced in excess of the State’s permission. It establishes no criterion to govern the President’s course. It does not require any finding by the President as a condition of his action. The Congress in § 9 (c) thus declares no policy as to the transportation of the excess production. So far as this section is concerned, it gives to the President an unlimited authority to determine the policy and to lay down the prohibition, or not to lay it down, as he may see fit. And disobedience to his order is made a crime punishable by fine and imprisonment. 416 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. We examine the context to ascertain if it furnishes a declaration of policy or a standard of action, which can be deemed to relate to the subject of § 9 (c) and thus to imply what is not there expressed. It is important to note that § 9 is headed “ Oil Regulation,”—that is, § 9 is the part of the National Industrial Recovery Act which particularly deals with that subject matter. But the other provisions of § 9 afford no ground for implying a limitation of the broad grant of authority in § 9 (c). Thus § 9 (a) authorizes the President to initiate before the Interstate Commerce Commission “ proceedings necessary to prescribe regulations to control the operations of oil pipe lines and to fix reasonable, compensatory rates for the transportation of petroleum and its products by pipe lines,” and the Interstate Commerce Commission is to grant preference “ to the hearings and determination of such cases.” Section 9 (b) authorizes the President to institute proceedings “ to divorce from any holding company any pipe-line company controlled by such holding company which pipe-line company by unfair practices or by exorbitant rates in the transportation of petroleum or its products tends to create a monopoly.” It will be observed that each of these provisions contains restrictive clauses as to their respective subjects. Neither relates to the subject of § 9 (c). We turn to the other provisions of Title I of the Act. The first section is a “ declaration of policy.” 6 It declares that a national emergency exists “ which is pro- 8 The text of § 1 is as follows: “ Section 1. A national emergency productive of wide-spread unemployment and disorganization of industry, which burdens interstate and foreign commerce, affects the public welfare, and undermines the standards of living of the American people, is hereby declared to exist. It is hereby declared to be the policy of Congress to remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount thereof; and to provide for the PANAMA REFINING CO. v. RYAN. 417 388 Opinion of the Court. ductive of widespread unemployment and disorganization of industry, which burdens interstate and foreign commerce, affects public welfare, and undermines the standards of living of the American people.” It is declared to be the policy of Congress “ to remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount thereof ” ; “ to provide for the general welfare by promoting the organization of industry for the purpose of cooperative action among trade groups ” ; “ to induce and maintain united action of labor and management under adequate governmental sanctions and supervision ” ; “ to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, to avoid undue restriction of production (except as may be temporarily required), to increase the consumption of industrial and agricultural products by increasing purchasing power, to reduce and relieve unemployment, to improve standards of labor, and otherwise to rehabilitate industry and to conserve natural resources.” This general outline of policy contains nothing as to the circumstances or conditions in which transportation of petroleum or petroleum products should be prohibited,— nothing as to the policy of prohibiting, or not prohibiting, the transportation of production exceeding what the general welfare by promoting the organization of industry for the purpose of cooperative action among trade groups, to induce and maintain united action of labor and management under adequate governmental sanctions and supervision, to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, to avoid undue restriction of production (except as may be temporarily required), to increase the consumption of industrial and agricultural products by increasing purchasing power, to reduce and relieve unemployment, to improve standards of labor, and otherwise to rehabilitate industry and to conserve natural resources.” 89995°—35-27 418 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. States allow. The general policy declared is “ to remove obstructions to the free flow of interstate and foreign commerce.” As to production, the section lays down no policy of limitation. It favors the fullest possible utilization of the present productive capacity of industries. It speaks, parenthetically, of a possible temporary restriction of production, but of what, or in what circumstances, it gives no suggestion. The section also speaks in general terms of the conservation of natural resources, but it prescribes no policy for the achievement of that end. It is manifest that this broad outline is simply an introduction of the Act, leaving the legislative policy as to particular subjects to be declared and defined, if at all, by the subsequent sections. It is no answer to insist that deleterious consequences follow the transportation of “ hot oil,”—oil exceeding state allowances. The Congress did not prohibit that transportation. The Congress did not undertake to say that the transportation of “ hot oil ” was injurious. The Congress did not say that transportation of that oil was “ unfair competition.” The Congress did not declare in what circumstances that transportation should be forbidden, or require the President to make any determination as to any facts or circumstances. Among the numerous and diverse objectives broadly stated, the President was not required to choose. The President was not required to ascertain and proclaim the conditions prevailing in the industry which made the prohibition necessary. The Congress left the matter to the President without standard or rule, to be dealt with as he pleased. The effort by ingenious and diligent construction to supply a criterion still permits such a breadth of authorized action as essentially to commit to the President the functions of a legislature rather than those of an executive or administrative PANAMA REFINING CO. v. RYAN. 419 388 Opinion of the Court. officer executing a declared legislative policy. We find nothing in § 1 which limits or controls the authority conferred by § 9 (c). We pass to the other sections of the Act. Section 2 relates to administrative agencies which may be constituted. Section 3 provides for the approval by the President of “ codes ” for trades or industries. These are to be codes of “ fair competition ” and the authority is based upon certain express conditions which require findings by the President. Action under § 9 (c) is not made to depend on the formulation of a code under § 3. In fact, the President’s action under § 9 (c) was taken more than a month before a petroleum code was approved. Subdivision (e) of § 3 authorizes the President, on his own motion or upon complaint, as stated, in case any article is being imported into the United States “ in substantial quantities or increasing ratio to domestic production of any competitive article,” under such conditions as to endanger the maintenance of a code or agreement under Title I, to cause an immediate investigation by the Tariff Commission. The authority of the President to act, after such investigation, is conditioned upon a finding by him of the existence of the underlying facts, and he may permit entry of the articles concerned upon such conditions and with such limitations as he shall find it necessary to prescribe in order that the entry shall not tend to render the code or agreement ineffective. Section 4 relates to agreements and licenses for the purposes stated. Section 5 refers to the application of the anti-trust laws. Sections 6 and 7 impose limitations upon the application of Title I, bearing upon trade associations and other organizations and upon the relations between employers and employees. Section 8 contains provisions with respect to the application of the Agricultural Adjustment Act of May 12, 1933. 420 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. None of these provisions can be deemed to prescribe any limitation of the grant of authority in § 9 (c). Fifth. The question whether such a delegation of legislative power is permitted by the Constitution is not answered by the argument that it should be assumed that the President has acted, and will act, for what he believes to be the public good. The point is not one of motives but of constitutional authority, for which the best of motives is not a substitute. While the present controversy relates to a delegation to the President, the basic question has a much wider application. If the Congress can make a grant of legislative authority of the sort attempted by § 9 (c), we find nothing in the Constitution which restricts the Congress to the selection of the President as grantee. The Congress may vest the power in the officer of its choice or in a board or commission such as it may select or create for the purpose. Nor, with respect to such a delegation, is the question concerned merely with the transportation of oil, or of oil produced in excess of what the State may allow. If legislative power may thus be vested in the President, or other grantee, as to that excess of production, we see no reason to doubt that it may similarly be vested with respect to the transportation of oil without reference to the State’s requirements. That reference simply defines the subject of the prohibition which the President is authorized to enact, or not to enact, as he pleases. And if that legislative power may be given to the President or other grantee, it would seem to follow that such power may similarly be conferred with respect to the transportation of other commodities in interstate commerce with or without reference to state action, thus giving to the grantee of the power the determination of what is a wise policy as to that transportation, and authority to permit or prohibit it, as the person, or board or commission, so chosen, may PANAMA REFINING CO. v. RYAN. 421 388 Opinion of the Court. think desirable. In that view, there would appear to be no ground for denying a similar prerogative of delegation with respect to other subjects of legislation. The Constitution provides that “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Art. I, § 1. And the Congress is empowered “To make all laws which shall be necessary and proper for carrying into execution ” its general powers. Art. I, § 8, par. 18. The Congress manifestly is not permitted to abdicate, or to transfer to others, the essential legislative functions with which it is thus vested. Undoubtedly legislation must often be adapted to complex conditions involving a host of details with which the national legislature cannot deal directly. The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply. Without capacity to give authorizations of that sort we should have the anomaly of a legislative power which in many circumstances calling for its exertion would be but a futility. But the constant recognition of the necessity and validity of such provisions, and the wide range of administrative authority which has been developed by means of them, cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained. The Court has had frequent occasion to refer to these limitations and to review the course of congressional action. At the very outset, amid the disturbances due to war in Europe, when the national safety was imperiled 422 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. and our neutrality was disregarded, the Congress passed a series of acts, as a part of which the President was authorized, in stated circumstances, to lay and revoke embargoes, to give permits for the exportation of arms and military stores, to remit and discontinue the restraints and prohibitions imposed by acts suspending commercial intercourse with certain countries, and to permit or interdict the entrance into waters of the United States of armed vessels belonging to foreign nations.7 These early acts were not the subject of judicial decision and, apart from that, they afford no adequate basis for a conclusion that the Congress assumed that it possessed an unqualified power of delegation. They were inspired by the vexations of American commerce through the hostile enterprises of the belligerent powers,8 they were directed to the effective execution of policies repeatedly declared by the Congress, and they confided to the President, for the purposes and under the conditions stated, an authority which was cognate to the conduct by him of the foreign relations of the Government.9 7 Acts of June 4, 1794, 1 Stat. 372; March 3, 1795, 1 Stat. 444; June 13, 1798, 1 Stat. 565, 566; February 9, 1799, 1 Stat. 613, 615; February 27, 1800, 2 Stat. 7, 9, 10; March 3, 1805, 2 Stat. 339, 341, 342; February 28, 1806, 2 Stat. 351, 352; April 22,1808, 2 Stat. 490. 8 Marshall’s Life of Washington, Vol. 2, pp. 319, et seq. 9 Thus, prior to the Act of June 4, 1794 (1 Stat. 372), the Congress had laid embargoes, for limited periods, upon vessels in ports of the United States bound to foreign ports. Resolutions of March 26, 1794, and April 18, 1794, 1 Stat. 400, 401. Fearing that the national safety might be endangered, the President, by the Act of June 4, 1794, was authorized to lay an embargo, with appropriate regulations, whenever he found “ that the public safety shall so require,” the authority not to be exercised while the Congress was in session and the embargo to be limited in any case to 15 days after the commencement of the next session. The Act of March 3, 1795 (1 Stat. 444), authorizing the President to permit the exportation of arms, etc. was “in cases connected with the security of the commercial interest of the 388 PANAMA REFINING CO. v. RYAN. Opinion of the Court. 423 The first case relating to an authorization of this description was that of The Brig Aurora, 7 Cranch 382. The cargo of that vessel had been condemned as having been imported from Great Britain in violation of the non-intercourse Act of March 1, 1809. 2 Stat. 528. That Act expired on May 1, 1810,10 when Congress passed another United States and for public purposes only.” By the Act of June 13, 1798 (1 Stat. 565), commercial intercourse was suspended between the United States and France and its dependencies. The Act was to continue only until the end of the next session of Congress and it was provided (§5) that if, before the next session, the Government of France “ shall clearly disavow, and shall be found to refrain from the aggressions, depredations and hostilities ” against the vessels and other property of citizens of the United States, and shall acknowledge the neutrality of the United States, “ it shall be lawful for the President,” “ being well ascertained of the premises,” to remit and discontinue the prohibitions and restraints imposed by the Act and to make proclamation accordingly. The Act of February 9, 1799 (1 Stat. 613), further suspended commercial intercourse between the United States and France and its dependencies until March 3, 1800, and gave a similar authority (§4) to the President to remit and discontinue the restraints and prohibitions of the Act, “ if he shall deem it expedient and consistent with the interest of the United States,” either with respect to the French Republic or to any place belonging to that Republic, “with which a commercial intercourse may safely be renewed,” and to revoke such order if he found that the interest of the United States so required. The suspension of commercial intercourse was renewed by the Act of February 27, 1800 (2 Stat. 7) until March 3, 1801, with a similar provision as to the authority of the President. The Act of March 3, 1805 (2 Stat. 339) related to persons committing treason, felony, etc. within the jurisdiction of the United States and taking refuge in foreign armed vessels, and the authority to the President to permit or prevent the entry of such vessels into the waters of the United States (§4) was “ in order to prevent insults to the authority of the laws, whereby the peace of the United States with foreign nations may be endangered.” See also Act of April 22, 1808, 2 Stat. 490. See also, Proclamations of President Adams, “ Works of John Adams,” Vol. IX, pp. 176, 177. 10 See Act of June 28, 1809, 2 Stat. 550. 424 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. Act (2 Stat. 605, 606) providing that in case either Great Britain or France, before March 3, 1811, “shall J. . so revoke or modify her edicts as that they shall cease to violate the neutral commerce of the United States, which fact the President of the United States shall declare by proclamation, and if the other nation shall not within three months thereafter so revoke or modify her edicts in like manner,” then, with respect to that nation, as stated, the provisions of the Act of 1809, after three months from that proclamation, “ shall ... be revived and have full force and effect.” On November 2, 1810, the President issued his proclamation declaring that France had so revoked or modified her edicts, and it was contended that the provisions of the Act of 1809, as to the cargo in question, had thus been revived. The Court said that it could see no sufficient reason why the legislature should not exercise its discretion in reviving the Act of 1809, “ either expressly or conditionally, as their judgment should direct.” The provision of that Act declaring “ that it should continue in force to a certain time, and no longer,” could not restrict the power of the legislature to extend its operation “ without limitation upon the occurrence of any subsequent combination of events.” This was a decision, said the Court in Field v. Clark, 143 U. S. 649, 683, “ that it was competent for Congress to make the revival of an act depend upon the proclamation of the President, showing the ascertainment by him of the fact that the edicts of certain nations had been so revoked or modified that they did not violate the neutral commerce of the United States.” In Field v. Clark, supra, the Court applied that ruling to the case of “ the suspension of an act upon a contingency to be ascertained by the President, and made known by his proclamation.” The Court was dealing with § 3 of the Act of October 1, 1890, 26 Stat. 567, 612. PANAMA REFINING CO. v. RYAN. 425 388 Opinion of the Court. That section provided that, “ with a view to secure reciprocal trade ” with countries producing certain articles, “ whenever, and so often as the President shall be satisfied ” that the Government of any country producing them imposed “ duties or other exactions upon the agricultural or other products of the United States ” which, in view of the free list established by the Act, the President “ may deem to be reciprocally unequal and unreasonable, he shall have the power and it shall be his duty,” to suspend the free introduction of those articles by proclamation to that effect, and that during that suspension the duties specified by the section should be levied. The validity of the provision was challenged as a delegation to the President of legislative power. The Court reviewed the early acts to which we have referred, as well as later statutes considered to be analogous.11 While sustaining the provision, the Court emphatically declared that the principle that “ Congress cannot delegate legislative power to the President ” is “ universally * “Acts of March 3, 1815, 3 Stat. 224; March 3, 1817, 3 Stat. 361; January 7, 1824, 4 Stat. 2; May 24, 1828, 4 Stat. 308; May 31, 1830, 4 Stat. 425; March 6, 1866, 14 Stat. 3; March 3, 1883, 22 Stat. 490; June 26, 1884, 23 Stat. 57; October 1, 1890, 26 Stat. 616. R. S. 2493, 2494, 4219, 4228. Proclamations of Presidents; 3 Stat. App. I; 4 Stat. App. Ill, 814r-818; 9 Stat. App. 1001, 1004; 11 Stat. App. 795; 13 Stat. App. 739; 14 Stat. App. 818, 819; 16 Stat. App. 1127; 17 Stat. App. 954, 956, 957; 21 Stat. 800; 23 Stat. 841, 842, 844. For other analogous statutes, see Acts of December 17, 1813, 3 Stat. 88, 93; June 19, 1886, 24 Stat. 79, 82; March 3, 1887, 24 Stat. 475; August 30, 1890, 26 Stat. 414, 415; February 15, 1893, 27 Stat. 449, 452; March 2, 1895, 28 Stat. 727, 733; September 8, 1916, 39 Stat. 756, 799; June 15, 1917, 40 Stat. 217, 225; August 10, 1917, 40 Stat. 276; October 6, 1917, 40 Stat. 411, 422; March 4, 1919, 40 Stat. 1348, 1350; June 17, 1930, 46 Stat. 590, 704. Resolutions of March 14, 1912, 37 Stat. 630; January 31, 1922, 42 Stat. 361. Proclamations: 24 Stat. 1024, 1025, 1028, 1030; 27 Stat. 995, 1011; 38 Stat. 1960; 39 Stat. 1756; 40 Stat. 1683, 1689, et seq. 426 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” The Court found that the act before it was not inconsistent with that principle ; that it did not “ in any real sense, invest the President with the power of legislation.” As “ the suspension was absolutely required when the President ascertained the existence of a particular fact,” it could not be said “ that in ascertaining that fact and in issuing his proclamation, in obedience to the legislative will, he exercised the function of making laws.” “ He was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect.” Id., pp. 692, 693. The Court referred with approval to the distinction pointed out by the Supreme Court of Ohio in Cincinnati, W. & Z. R. Co. v. Commissioners, 1 Ohio St. 88, between “ the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law.” Applying that principle, authorizations given by Congress to selected instrumentalities for the purpose of ascertaining the existence of facts to which legislation is directed, have constantly been sustained. Moreover, the Congress may not only give such authorizations to determine specific facts but may establish primary standards, devolving upon others the duty to carry out the declared legislative policy, that is, as Chief Justice Marshall expressed it, “ to fill up the details ” under the general provisions made by the legislature. Wayman v. Southard, 10 Wheat. 1, 43. In Buttfield v. Stranahan, 192 U. S. 470, 496, the Act of March 2, 1897 (29 Stat. 604, 605) was upheld, which authorized the Secretary of the Treasury, upon the recommendation of a board of experts, to “ establish uniform standards of purity, quality, and fitness PANAMA REFINING CO. v. RYAN. 427 388 Opinion of the Court. for the consumption of all kinds of teas imported into the United States.” The Court construed the statute as expressing “ the purpose to exclude the lowest grades of tea, whether demonstrably of inferior purity, or unfit for consumption, or presumably so because of their inferior quality.” The Congress, the Court said, thus fixed “ a primary standard ” and committed to the Secretary of the Treasury “ the mere executive duty to effectuate the legislative policy declared in the statute.” “ Congress legislated on the subject as far as was reasonably practicable, and from the necessities of the case was compelled to leave to executive officials the duty of bringing about the result pointed out by the statute.” See Red “ C ” Oil Co. v. North Carolina, 222 U. S. 380, 394. Another notable illustration is that of the authority given to the Secretary of War to determine whether^ bridges and other structures constitute unreasonable obstructions to navigation and to remove such obstructions. Act of March 3, 1899, § 18, 30 Stat. 1153, 1154. By that statute the Congress declared “ a general rule and imposed upon the Secretary of War the duty of ascertaining what particular cases came within the rule ” as thus laid down. Union Bridge Co. v. United States, 204 U. S. 364, 386; Monongahela Bridge Co. n. United States, 216 U. S. 177, 193; Philadelphia Co. v. Stimson, 223 U. S. 605, 638. Upon this principle rests the authority of the Interstate Commerce Commission, in the execution of the declared policy of the Congress in enforcing reasonable rates, in preventing undue preferences and unjust discriminations, in requiring suitable facilities for transportation in interstate commerce, and in exercising other powers held to have been validly conferred. St. Louis, I. M. & S. Ry. Co. v. Taylor, 210 U. S. 281, 287; Intermountain Rate Cases, 234 U. S. 476, 486; Avent v. United States, 266 U. S. 127, 130; N. Y. Central Securities Corp. 428 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. v. United States, 287 U. S. 12, 24, 25. Upon a similar ground the authority given to the President, in appropriate relation to his functions as Commander-in-Chief, by'the Trading with the Enemy Act, as amended by the Act of March 28, 1918 (40 Stat. 460), with respect to the disposition of enemy property, was sustained. “ The determination,” said the Court, “ of the terms of sales of enemy properties in the light of facts and conditions from time to time arising in the progress of war was not the making of a law; it was the application of the general rule laid down by the Act.” United States v. Chemical Foundation, 272 U. S. 1, 12.12 The provisions of the Radio Act of 1927 (44 Stat. 1162, 1163), providing for assignments of frequencies or wave lengths to various stations, afford another instance. In granting licenses, the Radio Commission is required to act “ as public convenience, interest, or necessity requires.” In construing this provision, the Court found that the statute itself declared the policy as to “ equality of radio broadcasting service, both of transmission and of reception,” and that it conferred authority to make allocations and assignments in order to secure, according to stated criteria, an equitable adjustment in the distribution of facilities.13 The standard set up was not so indefinite “ as to confer an unlimited power.” Radio Commission v. Nelson Brothers Co., 289 U. S. 266, 279, 285. So, also, from the beginning of the Government, the Congress has conferred upon executive officers the power to make regulations,—“ not for the government of their departments, but for administering the laws which did govern.” United States v. Grimaud, 220 U. S. 506, 517. Such regulations become, indeed, binding rules of con- 12 See, also, §§ 4 (b) and 5 (a) of the Trading with the Enemy Act, 40 Stat. 411. 414, 415. 13 Act of March 28, 1928, amending § 9 of the Radio Act of 1927, 45 Stat. 373. PANAMA REFINING CO. v. RYAN. 429 388 Opinion of the Court. duct, but they are valid only as subordinate rules and when found to be within the framework of the policy . which the legislature has sufficiently defined. In the case of Grimaud, supra, a regulation made by the Secretary of Agriculture requiring permits for grazing sheep on a forest reserve of lands belonging to the United States was involved. The Court referred to the various acts for the establishment and management of forest reservations and the authorization of rules which would “ insure the objects of such reservation,” that is, “ to regulate their occupancy and use and to preserve the forests thereon from destruction.” The Court observed that “ it was impracticable for Congress to provide general regulations for these various and varying details of management,” and that, in authorizing the Secretary of Agriculture to meet local conditions, Congress “ was merely conferring administrative functions upon an agent, and not delegating to him legislative power.” Id., pp. 515, 516. The Court quoted with approval the statement of the principle in Field v. Clark, supra, that the Congress cannot delegate legislative power, and upheld the regulation in question as an administrative rule for the appropriate execution of the policy laid down in the statute. See Wayman v. Southard, supra; Interstate Commerce Commission v. Goodrich Transit Co., 224 U. S. 194, 214, 215; Selective Draft Law Cases, 245 U. S. 366, 389; McKinley v. United States, 249 U. S. 397. The applicable considerations were reviewed in Hampton & Co. v. United States, 276 U. S. 394, where the Court dealt with the so-called “ flexible tariff provision ” of the Act of September 21, 1922 (42 Stat. 858, 941, 942), and with the authority which it conferred upon the President. The Court applied the same principle that permitted the Congress to exercise its rate-making power in interstate commerce, and found that a similar provision was justified for the fixing of customs duties; that is, as the Court said, “ If Congress shall lay down by 430 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power. If it is thought wise to vary the customs duties according to changing conditions of production at home and abroad, it may authorize the Chief Executive to carry out this purpose, with the advisory assistance of a Tariff Commission appointed under Congressional authority.” The Court sustained the provision upon the authority of Field n. Clark, supra, repeating with approval what was there said,—that “ What the President was required to do was merely in execution of the act of Congress.” Id., pp. 409-411. Thus, in every case in which the question has been raised, the Court has recognized that there are limits of delegation which there is no constitutional authority to transcend. We think that § 9 (c) goes beyond those limits. As to the transportation of oil production in excess of state permission, the Congress has declared no policy, has established no standard, has laid down no rule. There is no requirement, no definition of circumstances and conditions in which the transportation is to be allowed or prohibited. If § 9 (c) were held valid, it would be idle to pretend that anything would be left of limitations upon the power of the Congress to delegate its law-making function. The reasoning of the many decisions we have reviewed would be made vacuous and their distinctions nugatory. Instead of performing its law-making function, the Congress could at will and as to such subjects as it chose transfer that function to the President or other officer or to an administrative body. The question is not of the intrinsic importance of the particular statute before us, but of the constitutional processes of legislation which are an essential part of our system of government. 388 PANAMA REFINING CO. v. RYAN. Opinion of the Court. 431 Sixth. There is another objection to the validity of the prohibition laid down by the Executive Order under § 9 (c). The Executive Order contains no finding, no statement of the grounds of the President’s action in enacting the prohibition. Both § 9 (c) and the Executive Order are in notable contrast with historic practice (as shown by many statutes and proclamations we have cited in the margin 14) by which declarations of policy are made by the Congress and delegations are within the framework of that policy and have relation to facts and conditions to be found and stated by the President in the appropriate exercise of the delegated authority. If it could be said that from the four corners of the statute any possible inference could be drawn of particular circumstances or conditions which were to govern the exercise of the authority conferred, the President could not act validly without having regard to those circumstances and conditions. And findings by him as to the existence of the required basis of his action would be necessary to sustain that action, for otherwise the case would still be one of an unfettered discretion as the qualification of authority would be ineffectual. The point is pertinent in relation to the first section of the National Industrial Recovery Act. We have said that the first section is but a general introduction, that it declares no policy and defines no standard with respect to the transportation which is the subject of § 9 (c). But if from the extremely broad description contained in that section and the widely different matters to which the section refers, it were possible to derive a statement of prerequisites to the President’s action under § 9 (c), it would still be necessary for the President to comply with those conditions and to show that compliance as the ground of his prohibition. To hold “ See Acts and Proclamations cited in Note 11, supra. 432 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. that he is free to select as he chooses from the many and various objects generally described in the first section, and then to act without making any finding with respect to any object that he does select, and the circumstances properly related to that object, would be in effect to make the conditions inoperative and to invest him with an uncontrolled legislative power. We are not dealing with action which, appropriately belonging to the executive province, is not the subject of judicial review, or with. the presumptions attaching to executive action.15 To repeat, we are concerned with the question of the delegation of legislative power. If the citizen is to be punished for the crime of violating a legislative order of an executive officer, or of a board or commission, due process of law requires that it shall appear that the order is within the authority of the officer, board or commission, and, if that authority depends on determinations of fact, those determinations must be shown. As the Court said in Wichita Railroad & Light Co. v. Public Utilities Comm’n, 260 U. S. 48, 59: “ In creating such an administrative agency the legislature, to prevent its being a pure delegation of legislative power, must enjoin upon it a certain course of procedure and certain rules of decision in the performance of its function. It is a wholesome and necessary principle that such an agency must pursue the procedure and rules enjoined and show a substantial compliance therewith to give validity to its action. When, therefore, such an administrative agency is required as a condition precedent to an order, to make a finding of facts, the validity of the order must rest upon the needed finding. If it is lacking, the order is ineffective. 15 See Philadelphia & Trenton R. Co. v. Stimpson, 14 Pet. 448, 458; Martin v. Mott, 12 Wheat. 19, 30, 32; Dakota Central Telephone Co. v. South Dakota, 250 U. S. 163, 182, 184; United States v. Chemical Foundation, 272 U. S. 1, 14, 15; Sterling v. Constantin, 287 U. S. 378, 399. PANAMA REFINING CO. v. RYAN. 433 388 Cardozo, J., dissenting. It is pressed on us that the lack of an express finding may be supplied by implication and by reference to the averments of the petition invoking the action of the Commission. We can not agree to this.” Referring to the ruling in the Wichita case, the Court said in Mahler n. Eby, 264 U. S. 32, 44: “We held that the order in that case made after a hearing and ordering a reduction was void for lack of the express finding in the order. We put this conclusion not only on the language of the statute but also on general principles of constitutional government.” We cannot regard the President as immune from the application of these constitutional principles. When the President is invested with legislative authority as the delegate of Congress in carrying out a declared policy, he necessarily acts under the constitutional restriction applicable to such a delegation. We see no escape from the conclusion that the Executive Orders of July 11, 1933, and July 14, 1933, and the Regulations issued by the Secretary of the Interior thereunder, are without constitutional authority. The decrees of the Circuit Court of Appeals are reversed and the causes are remanded to the District Court with direction to modify its decrees in conformity with this opinion so as to grant permanent injunctions, restraining the defendants from enforcing those orders and regulations. Reversed. Mr. Justice Cardozo, dissenting. With all that is said in the opinion of the court as to the Code of Fair Competition adopted by the President August 16, 1933, for the governance of the petroleum industry, I am fully in accord. No question is before us at this time as to the power of Congress to regulate production. No question is here as to its competence to clothe the President with a delegated power whereby a Code of Fair Competition may become invested with the force of 89995°—35------28 434 OCTOBER TERM, 1934. Cardozo, J., dissenting. 293 U. S. law. The petitioners were never in jeopardy by force of such a code or of regulations made thereunder. They were not in jeopardy because there was neither statute nor regulation subjecting them to pains or penalties if they set the code at naught. One must deplore the administrative methods that brought about uncertainty for a time as to the terms of executive orders intended to be law. Even so, the petitioners do not stand in need of an injunction to restrain the enforcement of a non-existent mandate. I am unable to assent to the conclusion that § 9 (c) of the National Recovery Act, a section delegating to the President a very different power from any that is involved in the regulation of production or in the promulgation of a code, is to be nullified upon the ground that his discretion is too broad or for any other reason. My point of difference with the majority of the court is narrow. I concede that to uphold the delegation there is need to discover in the terms of the act a standard reasonably clear whereby discretion must be governed. I deny that such a standard is lacking in respect of the prohibitions permitted by this section when the act with all its reasonable implications is considered as a whole. What the standard is becomes the pivotal inquiry. As to the nature of the act which the President is authorized to perform there is no need for implication. That at least is definite beyond the possibility of challenge. He may prohibit the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage in excess of the amount permitted by any state law or valid regulation or order prescribed thereunder. He is not left to roam at will among all the possible subjects of interstate transportation, picking and choosing as he pleases. I am far from asserting now that delegation would be 388 PANAMA REFINING CO. v. RYAN. Cardozo, J., dissenting. 435 valid if accompanied by all that latitude of choice. In the laying of his interdict he is to confine himself to a particular commodity, and to that commodity when produced or withdrawn from storage in contravention of the policy and statutes of the states. He has choice, though within limits, as to the occasion, but none whatever as to the means. The means have been prescribed by Congress. There has been no grant to the Executive of any roving commission to inquire into evils and then, upon discovering them, do anything he pleases. His act being thus defined, what else must he ascertain in order to regulate his discretion and bring the power into play? The answer is not given if we look to § 9 (c) only, but it comes to us by implication from a view of other sections where the standards are defined. The prevailing opinion concedes that a standard will be as effective if imported into § 9 (c) by reasonable implication as if put there in so many words. If we look to the whole structure of the statute, the test is plainly this, that the President is to forbid the transportation of the oil when he believes, in the light of the conditions of the industry as disclosed from time to time, that the prohibition will tend to effectuate the declared policies of the act,—not merely his own conception of its policies, undirected by any extrinsic guide, but the policies announced by § 1 in the forefront of the statute as an index to the meaning of everything that follows.1 1 “ Section 1. . . . It is hereby declared to be the policy of Congress to remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount thereof; and to provide for the general welfare by promoting the organization of industry for the purpose of cooperative action among trade groups, to induce and maintain united action of labor and management under adequate governmental sanctions and supervision, to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, to avoid undue restriction of produc 436 OCTOBER TERM, 1934. Cardozo, J., dissenting. 293 U. S. Oil produced or transported in excess of a statutory quota is known in the industry as “ hot oil,” and the record is replete with evidence as to the effect of such production and transportation upon the economic situa-tidn and upon national recovery. A declared policy of Congress in the adoption of the act is “ to eliminate unfair competitive practices.” Beyond question an unfair competitive practice exists when “ hot oil ” is transported in interstate commerce with the result that law-abiding dealers must compete with lawbreakers. Here is one of the standards set up in the act to guide the President’s discretion. Another declared policy of Congress is “ to conserve natural resources.” Beyond question the disregard of statutory quotas is wasting the oil fields in Texas and other states, and putting in jeopardy of exhaustion one of the treasures of the nation. All this is developed in the record and in the arguments of counsel for the government with a wealth of illustration. Here is a second standard. Another declared policy of Congress is to “ promote the fullest possible utilization of the present productive capacity of industries,” and “ except as may be temporarily required ” to “ avoid undue restriction of production.” Beyond question prevailing conditions in the oil industry have brought about the need for temporary restriction in order to promote in the long run the fullest productive capacity of business in all its many tion (except as may be temporarily required), to increase the consumption of industrial and agricultural products by increasing purchasing power, to reduce and relieve unemployment, to improve standards of labor, and otherwise to rehabilitate industry and to conserve natural resources.” The Act as a whole is entitled as one “ To encourage national industrial recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for other purposes”; and the heading of Title I, which includes §§ 1 to 10, is “ Industrial Recovery.” PANAMA REFINING CO. v. RYAN. 437 388 Cardozo, J., dissenting. branches, for the effect of present practices is to diminish that capacity by demoralizing prices and thus increasing unemployment. The ascertainment of these facts at any time or place was a task too intricate and special to be performed by Congress itself through a general enactment in advance of the event. All that Congress could safely do was to declare the act to be done and the policies to be promoted, leaving to the delegate of its power the ascertainment of the shifting facts that would determine the relation between the doing of the act and the attainment of the stated ends. That is what it did. It said to the President in substance: You are to consider whether the transportation of oil in excess of the statutory quotas is offensive to one or more of the policies enumerated in § 1, whether the effect of such conduct is to promote unfair competition or to waste the natural resources or to demoralize prices or to increase unemployment or to reduce the purchasing power of the workers of the nation. If these standards or some of them have been flouted with the result of a substantial obstruction to industrial recovery, you may then by a prohibitory order eradicate the mischief. I am not unmindful of the argument that the President has the privilege of choice between one standard and another, acting or failing to act according to an estimate of values that is individual and personal. To describe his conduct thus is to ignore the essence of his function. What he does is to inquire into the industrial facts as they exist from time to time. Cf. Hampton & Co. v. United States, 276 U. S. 394, at p. 409; Locke’s Appeal, 72 Penn. St. 491, 498, quoted with approval in Field v. Clark, 143 U. S. 649, at p. 694. These being ascertained, he is not to prefer one standard to another in any subjective attitude of mind, in any personal or wilful way. He is to study the facts objectively, the violation of a standard 438 OCTOBER TERM, 1934. Cardozo, J., dissenting. 293 U. S. impelling him to action or inaction according to its observed effect upon industrial recovery,—the ultimate end, as appears by the very heading of the title, to which all the other ends are tributary and mediate. Nor is there any essential conflict among the standards inter se, at all events when they are viewed in relation to § 9 (c) and the power there conferred. In its immediacy, the exclusion of oil from the channels of transportation is a restriction of interstate commerce, not a removal of obstructions. This is self-evident, and, of course, was understood by Congress when the discretionary power of exclusion was given to its delegate. But what is restriction in its immediacy may in its ultimate and larger consequences be expansion and development. Congress was aware that for the recovery of national well-being there might be need of temporary restriction upon production in one industry or another. It said so in § 1. When it clothed the President with power to impose such a restriction—to prohibit the flow of oil illegally produced— it laid upon him a mandate to inquire and determine whether the conditions in that particular industry were such at any given time as to make restriction helpful to the declared objectives of the act and to the ultimate attainment of industrial recovery. If such a situation does not present an instance of lawful delegation in a typical and classic form (Field v. Clark, 143 U. S. 649; United States v. Grimaud, 220 U. S. 506; Hampton & Co. v. United States, 276 U. S. 394), categories long established will have to be formulated anew. In what has been written, I have stated, but without developing the argument, that by reasonable implication the power conferred upon the President by § 9 (c) is to be read as if coupled with the words that he shall exercise the power whenever satisfied that by doing so he will effectuate the policy of the statute as theretofore declared. Two canons of interpretation, each familiar to our law, PANAMA REFINING CO. v. RYAN. 439 388 Cardozo, J., dissenting. leave no escape from that conclusion. One is that the meaning of a statute is to be looked for, not in any single section, but in all the parts together and in their relation to the end in view. Cherokee Intermarriage Cases, 203 U. S. 76, 89; McKee v. United States, 164 U. S. 287; Talbott v. Silver Bow County, 139 U. S. 438, 443, 444. The other is that when a statute is reasonably susceptible of two interpretations, by one of which it is unconstitutional and by the other valid, the court prefers the meaning that preserves to the meaning that destroys. United States v. Delaware & Hudson Co., 213 U. S. 366, 407; Knights Templars’ Indemnity Co. v. Jarman, 187 U. S. 197, 205. Plainly, § 1, with its declaration of the will of Congress, is the chart that has been furnished to the President to enable him to shape his course among the reefs and shallows of this act. If there could be doubt as to this when § 1 is viewed alone, the doubt would be dispelled by the reiteration of the policy in the sections that come later. In § 2, which relates to administrative agencies, in § 3, which relates to Codes of Fair Competition, in § 4, which relates to agreements and licenses, in § 6, which prescribes limitations upon the application of the statute, and in § 10 which permits the adoption of rules and regulations, authority is conferred upon the President to do one or more acts as the delegate of Congress when he is satisfied that thereby he will aid “ in effectuating the policy of this title ” or in carrying out its provisions. True § 9, the one relating to petroleum, does not by express words of reference embody the same standard, yet nothing different can have been meant. What, indeed, is the alternative? Either the statute means that the President is to adhere to the declared policy of Congress, or it means that he is to exercise a merely arbitrary will. The one construction invigorates the act; the other saps its life. A choice between them is not hard. 440 OCTOBER TERM, 1934. Cardozo, J., dissenting. 293 U.S. I am persuaded that a reference, express or implied, to the policy of Congress as declared in § 1 is a sufficient definition of a standard to make the statute valid. Discretion is not unconfined and vagrant. It is canalized within banks that keep it from overflowing. Field v. Clark, 143 U. S. 649; United States v. Grimaud, 220 U. S. 506, and Hampton de Co. v. United States, 276 U. S. 394, state the applicable principle. Under these decisions the separation of powers between the Executive and Congress is not a doctrinaire concept to be made use of with pedantic rigor. There must be sensible approximation, there must be elasticity of adjustment, in response to the practical necessities of government, which cannot foresee today the developments of tomorrow in their nearly infinite variety. The Interstate Commerce Commission, probing the economic situation of the railroads of the country, consolidating them into systems, shaping in numberless ways their capacities and duties, and even making or unmaking the prosperity of great communities (Texas & Pacific Ry. Co. v. United States, 289 U. S. 627), is a conspicuous illustration. See, e. g., 41 Stat. 479-482, c. 91, §§ 405, 406, 407, 408; 42 Stat. 27, c. 20; 49 U. S. C. §§ 3, 4, 5. Cf. Intermountain Rate Cases, 234 U. S. 476; N. Y. Central Securities Corp. v. United States, 287 U. S. 12, 24, 25; Sharfman, The Interstate Commerce Commission, vol. 2, pp. 357, 365. There could surely be no question as to the validity of an act whereby carriers would be prohibited from transporting oil produced in contravention of a statute if in the judgment of the commission the practice was demoralizing the market and bringing disorder and insecurity into the national economy. What may be delegated to a commission may be delegated to the President. “ Congress may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave PANAMA REFINING CO. v. RYAN. 441 388 Cardozo, J., dissenting. the determination of such time to the discretion of the executive.” Hampton Co. v. United States, supra, at p. 407. Only recently (1932) the whole subject was discussed with much enlightenment in the Report by the Committee on Ministers’ Powers to the Lord Chancellor of Great Britain. See especially, pp. 23, 51. In the complex life of today, the business of government could not go on without the delegation, in greater or less degree, of the power to adapt the rule to the swiftly moving facts. A striking illustration of this need is found in the very industry affected by this section, the production of petroleum and its transportation between the states. At the passage of the National Recovery Act no one could be certain how many of the states would adopt valid quota laws, or how generally the laws would be observed when adopted, or to what extent illegal practices would affect honest competitors or the stability of prices or the conservation of natural resources or the return of industrial prosperity. Much would depend upon conditions as they shaped themselves thereafter. Violations of the state laws might turn out to be so infrequent that the honest competitor would suffer little, if any, damage. The demand for oil might be so reduced that there would be no serious risk of waste, depleting or imperilling the resources of the nation. Apart from these possibilities the business might become stabilized through voluntary cooperation or the adoption of a code or otherwise. Congress not unnaturally was unwilling to attach to the state laws a sanction so extreme as the cutting off of the privilege of interstate commerce unless the need for such action had unmistakably developed. What was left to the President was to ascertain the conditions prevailing in the industry, and prohibit or fail to prohibit according to the effect of those conditions upon the phases of the national policy relevant thereto. 442 OCTOBER TERM, 1934. Cardozo, J., dissenting. 293 U. S. From a host of precedents available, both legislative and judicial, I cite a few as illustrations. By an act approved June 4, 1794, during the administration of Washington (1 Stat. 372; Field v. Clark, 143 U. S. 649, 683) Congress authorized the President, when Congress was not in session, and for a prescribed period “ whenever, in his opinion, the public safety shall so require, to lay an embargo on all ships and vessels in the ports of the United States, or upon the ships and vessels of the United States, or the ships and vessels of any foreign nation, under such regulations as the circumstances of the case may require, and to continue or revoke the same, whenever he shall think proper.” By an act of 1799, February 9 (1 Stat. 613, 615) suspending commercial intercourse with France and its dependencies, “ it shall be lawful for the President of the United States, if he shall deem it expedient and consistent with the interest of the United States, by his order to remit, and discontinue, for the time being, the restraints and prohibitions aforesaid, . . . and also to revoke such order, [i. e., reestablish the restraints] whenever, in his opinion, the interest of the United States shall require.” By an act of October 1, 1890 (26 Stat. 567, 612), sustained in Field v. Clark, supra, the President was authorized to suspend by proclamation the free introduction into this country of enumerated articles when satisfied that a country producing them imposes duties or other exactions upon the agricultural or other products of the United States which he may deem to be reciprocally unequal or unreasonable. By an act of September 21, 1922, (42 Stat. 858, 941, 945), sustained in Hampton & Co. v. United States, supra, the President was empowered to increase or decrease tariff duties so as to equalize the differences between the costs of production at home and abroad, and empowered, by the same means, to give redress for other acts of discrimination or unfairness “ when he finds that the public interest will be 388 PANAMA REFINING CO. v. RYAN. Cardozo, J., dissenting. 443 served thereby.” Delegation was not confined to an inquiry into the necessity or occasion for the change. It included the magnitude of the change, the delegate thus defining the act to be performed. By an act of June 4, 1897 (30 Stat. 11, 35), amended in 1905 (33 Stat. 628), regulating the forest reservations of the nation, the purpose of the reservations was declared to be 11 to improve and protect the forest within the reservation,” and to secure “ favorable conditions of water flows, and to furnish a continuous supply of lumber for the use and necessities of citizens of the United States.” Without further guide or standard, the Secretary of Agriculture was empowered to “ make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction.” The validity of these provisions was upheld in United States v. Gri-maud, supra, as against the claim by one who violated the rules that there had been an unlawful delegation. Many other precedents are cited in the margin.2 They teach one lesson and a clear one. There is no fear that the nation will drift from its ancient moorings as the result of the narrow delegation of power permitted by this section. What can be done under cover of that permission is closely and clearly circumscribed both as to subject matter and occasion. The statute was framed in the shadow of a national disaster. A host of unforeseen contingencies would have to be faced from day to day, and faced with a fulness of under 2 2 Stat. 411, December 19, 1806; 3 Stat. 224, March 3, 1815; 23 Stat. 31, 32, May 29, 1884; 25 Stat. 659, February 9, 1889; 38 Stat. 717, September 26, 1914; 41 Stat. 593, May 10, 1920; Williams v. United States, 138 U. S. 514; Buttfidd v. Stranahan, 192 U. S. 470; Intermountain Rate Cases, 234 U. S. 476; Mahler v. Eby, 264 U. S. 32. Cf. Emergency Banking Act of March 9, 1933; 48 Stat. 1; Agricultural Adjustment Act of May 12, 1933; 48 Stat. 51, 53, § 43. 444 OCTOBER TERM, 1934. Cardozo, J., dissenting. 293 U. S. standing unattainable by any one except the man upon the scene. The President was chosen to meet the instant need. A subsidiary question remains as to the form of the executive order, which is copied in the margin.3 The question is a subsidiary one, for unless the statute is invalid, another order with fuller findings or recitals may correct the informalities of this one, if informalities there are. But the order to my thinking is valid as it stands. The President was not required either by the Constitution or by any statute to state the reasons that had induced him to exercise the granted power. It is enough that the grant of power had been made and that pursuant to that grant he had signified the will to act. The will to act being declared, the law presumes that the declaration was preceded by due inquiry and that it was rooted in sufficient grounds. Such, for a hundred years and more, has been the doctrine of this court. The act of February 28, 1795 (1 Stat. 424), authorized the President " whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe,” to call forth such number of the militia of the states as he shall deem necessary and to issue his 3 “ Executive Order. Prohibition of Transportation in Interstate and Foreign Commerce of Petroleum and the Products Thereof Unlawfully Produced or Withdrawn from Storage. By virtue of the authority vested in me by the Act of Congress entitled ‘An Act To encourage national industrial recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for ether purposes,’ approved June 16, 1933, (Public No. 67, 73d Congress), the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage in excess of the amount permitted to be produced or withdrawn from storage by any State law or valid regulation or order prescribed thereunder, by any board, commission, officer, or other duly authorized agency of'a State, is hereby prohibited. Franklin D. Roosevelt. The White House, July 11, 1933.” 388 PANAMA REFINING CO. v. RYAN. Cardozo, J., dissenting. 445 orders to the appropriate officers for that purpose. Cf. Constitution, Article I, clause 15. When war threatened in the summer of 1812, President Madison acting under the authority of that statute directed Major General Dearborn to requisition from New York, Massachusetts and Connecticut certain numbers of the states’ militia. American State Papers, Military Affairs, vol. 1, pp. 322-5. No finding of “ imminent danger of invasion ” was made by the President in any express way, nor was such a finding made by the Secretary of War or any other official. The form of the requisitions to Massachusetts and Connecticut appears in the state papers of the government (American State Papers, supra); the form of those to New York was almost certainly the same. Replevin was brought by a New York militiaman who refused to obey the orders, and whose property had been taken in payment of a fine imposed by a court-martial. The defendant, a deputy marshal, defended on the ground that the orders were valid, and the plaintiff demurred because there was no allegation that the President had adjudged that there was imminent danger of an invasion. The case came to this court. Martin v. Mott, 12 Wheat. 19. In an opinion by Story, J., the court upheld the seizure. “ The argument is, [he wrote] that the power confided to the President is a limited power, and can be exercised only in the cases pointed out in the statute, and therefore, it is necessary to aver the facts which bring the exercise within the purview of the statute. In short, the same principles are sought to be applied to the delegation and exercise of this power intrusted to the Executive of the nation for great political purposes, as might be applied to the humblest officer in the government, acting upon the most narrow and special authority. It is the opinion of the Court, that this objection cannot be maintained. When the President exercises an authority confided to him by law, the presumption is, that it is exercised in pursuance 446 OCTOBER TERM, 1934. Cardozo, J., dissenting. 293 U. S. of law. Every public officer is presumed to act in obedience to his duty, until the contrary is shown; and, a fortiori, this presumption ought to be favourably applied to the chief magistrate of the Union. It is not necessary to aver, that the act which he may rightfully do, was so done.” A like presumption has been applied in other cases and in a great variety of circumstances. Philadelphia & Trenton R. Co. v. Stimpson, 14 Pet. 448, 458; Rankin v. Hoyt, 4 How. 327, 335; Carpenter v. Rannels, 19 Wall. 138, 146; The Confiscation Cases, 20 Wall. 92, 109; Knox County v. Ninth National Bank, 147 U. S. 91, 97; United States v. Chemical Foundation, 272 U. S. 1, 14, 15. This does not mean that the individual is helpless in the face of usurpation. A court will not revise the discretion of the Executive, sitting in judgment on his order as if it were the verdict of a jury. Martin v. Mott, supra. On the other hand, we have said that his order may not stand if it is an act of mere oppression, an arbitrary fiat that overleaps the bounds of judgment. Sterling v. Constantin, 287 U. S. 378, 399, 400, 401. The complainants and others in their position may show, if they can, that in no conceivable aspect was there anything in the conditions of the oil industry in July, 1933, to establish a connection between the prohibitory order and the declared policies of the Congress. This is merely to say that the standard must be such as to have at least a possible relation to the act to be performed under the delegated power. One can hardly suppose that a prohibitory order would survive a test in court if the Executive were to assert a relation between the transportation of petroleum and the maintenance of the gold standard or the preservation of peace in Europe or the Orient. On the other hand, there can be no challenge of such a mandate unless the possibility of a rational nexus is lacking alto- PANAMA REFINING CO. v. RYAN. 447 388 Cardozo, J., dissenting. gether. Here, in the case at hand, the relation between the order and the standard is manifest upon the face of the transaction from facts so notorious as to be within the range of our judicial notice. There is significance in the fact that it is not challenged even now. The President, when acting in the exercise of a delegated power, is not a quasi-judicial officer, whose rulings are subject to review upon certiorari or appeal (Chicago Junction Case, 264 U. S. 258, 265; cf. Givens v. Zerbst, 255 U. S. 11, 20), or an administrative agency supervised in the same way. Officers and bodies such as those may be required by reviewing courts to express their decision in formal and explicit findings to the end that review may be intelligent. Florida v. United States, 282 U. S. 194, 215; Beaumont, Sour Lake do Western Ry. Co. v. United States, 282 U. S. 74, 86; United States v. Baltimore & Ohio R. Co., post, p. 454. Cf. Public Service Commission of Wisconsin v. Wisconsin Telephone Co., 289 U. S. 67. Such is not the position or duty of the President. He is the Chief Executive of the nation, exercising a power committed to him by Congress, and subject, in respect of the formal qualities of his acts, to the restrictions, if any, accompanying the grant, but not to any others. One will not find such restrictions either in the statute itself or in the Constitution back of it. The Constitution of the United States is not a code of civil practice. The prevailing opinion cites Wichita Railroad & Light Co. v. Public Utilities Commission of Kansas, 260 U. S. 48, and Mahler v. Eby, 264 U. S. 32, 44. One dealt with a delegation to a public utilities commission of the power to reduce existing rates if they were found to be unreasonable; the other a delegation to the Secretary of Labor of the power to deport aliens found after notice and a hearing to be undesirable residents. In each it was a 448 OCTOBER TERM, 1934. Cardozo, J., dissenting. 293 U. S. specific requirement of the statute that the basic fact conditioning action by the administrative agency be stated in a finding and stated there expressly. If legislative power is delegated subject to a condition, it is a requirement of constitutional government that the condition be fulfilled. In default of such fulfilment, there is in truth no delegation, and hence no official action, but only the vain show of it. The analogy is remote between power so conditioned and that in controversy here. Discretionary action does not become subject to review because the discretion is legislative rather than executive. If the reasons for the prohibition now in controversy had been stated in the order, the jurisdiction of the courts would have been no greater and no less. Investigation resulting in an order directed against a particular person after notice and a hearing is not to be confused with investigation preliminary and incidental to the formulation of a rule. An embargo under the act of 1794 would have been more than a nullity though there had been a failure to recite that what was done was essential to the public safety or to enumerate the reasons leading to that conclusion. If findings are necessary as a preamble to general regulations, the requirement must be looked for elsewhere than in the Constitution of the nation. There are other questions as to the validity of § 9 (c) in matters unrelated to the delegation of power to the President, and also questions as to the Regulations adopted in behalf of the President by the Secretary of the Interior. They are not considered in the prevailing opinion. However, they have been well reviewed and disposed of in the opinion of Sibley, J., writing for the court below. It is unnecessary at this time to dwell upon them further. The decree in each case should be affirmed. SHANFEROKE CO. v. WESTCHESTER CO. 449 Counsel for Parties. SHANFEROKE COAL & SUPPLY CORP. v. WESTCHESTER SERVICE CORP. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 211. Argued December 7, 1934.—Decided January 7, 1935. 1. Denial by the District Court of an application for a stay of proceedings in an action on a contract until an arbitration shall be had in accordance with the terms of the contract, is in effect an order denying an interlocutory injunction, and is appealable, under Jud. Code, § 129, to the Circuit Court of Appeals. Endow v. New York Life Ins. Co., ante, p. 379. P. 451. 2. As bearing on this question of jurisdiction on appeal, it is immaterial whether or not the terms of the contract sued on would preclude entry in a federal court of a decree for specific performance of the arbitration. P. 452. 3. The power of the District Court under § 3 of the U. S. Arbitration Act of February 12, 1925, to grant a stay of an action until arbitration has been had in accordance with the terms of a written agreement, is not confined to cases in which that court may itself compel arbitration under § 4 of the same Act, but extends to cases in which the arbitration agreement provides for compulsory proceedings exclusively in the state courts. P. 452. 70 F. (2d) 297, affirmed. Certiorari * to review the reversal, on an interlocutory appeal, of an order of the District Court denying a stay of proceedings in an action on a contract between citizens of different States. Mr. Alfred B. Nathan for petitioner. Mr. Ernest E. Wheeler, with whom Mr. Ralph Royall was on the brief, for respondent. *See Table of Cases Reported in this volume. 89995°—35--29 450 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. Mr. Justice Brandéis delivered the opinion of the Court. This action was brought by the Shanferoke Coal & Supply Corporation, a citizen of Delaware, in the federal court for southern New York against the Westchester Service Corporation, a citizen of the latter State. The declaration alleged that the defendant had by a contract in writing agreed to purchase from the plaintiff a large quantity of coal to be taken in instalments throughout a period of years; and that the defendant had, after accepting part of the coal, repudiated the contract. The defendant set up in its answer, as a special defense, that prior to the commencement of the action a dispute had arisen concerning the construction of the contract, the rights and duties of the respective parties thereunder and its performance; that the contract contained an arbitration clause; and that prior to the commencement of the action the defendant had notified the plaintiff of its readiness and willingness to submit the dispute to arbitration and ever since had been ready and willing to do so; but that the plaintiff had refused to proceed with the arbitration. The defendant then moved that the action, and all proceedings therein, be stayed until an arbitration should be had in accordance with the terms of the contract sued on. The motion was heard on affidavits and counter affidavits. The arbitration clause is as follows: “ In case any dispute should arise between the Buyer and Seller as to the performance of any of the terms of this agreement, such dispute shall be arbitrated and the cost thereof shall be borne equally by both parties. The Buyer and the Seller shall each appoint one arbitrator and the two arbitrators so appointed shall select a third arbitrator and the decision of a majority of the three arbitrators shall be final and conclusive on both parties. SHANFEROKE CO. v. WESTCHESTER CO. 451 449 Opinion of the Court. In case for any reason any such arbitration shall fail to proceed to a final award, either party may apply to the Supreme Court of the State of New York for an order compelling the specific performance of this arbitration agreement in accordance with the arbitration laws of the State of New York.” The District Court interpreted the clause as making the arbitration enforceable only in state courts of New York; and on that ground denied the stay. On an appeal from the order of denial, the Court of Appeals held that even if the clause should be so interpreted, § 3 of the United States Arbitration Act authorized the stay.1 It, therefore, reversed the order and directed the District Court to grant the stay, with leave to that court “ to vacate it at any time, should it appear that the defendant is in default in proceeding with the arbitration.” 70 F. (2d) 297. This Court granted certiorari. First. The order of the District Court denying the stay was not a final judgment appealable under § 128 of the Judicial Code. Being an interlocutory order, it was appealable to the Circuit Court of Appeals under § 129, only if the denial of the stay should be deemed the denial of an injunction. Compare General Electric Co. n. Marvel Co., 287 U. S. 430, 432. That question we must first determine although it was not raised below or by counsel here. See Mansfield, C. de L. M. Ry. Co. v. Swan, 111 U. S. 379, 1 Act of February 12, 1925, c. 213, § 3, 43 Stat. 883: “ If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration,” 452 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. 382. For the reasons stated in Endow v. New York Life Ins. Co., decided this day, ante, p. 379, an order granting or denying a stay based on an equitable defense or cross-bill interposed in an action at law under § 274b, is appealable under § 129. We are of the opinion that the special defense setting up the arbitration agreement is an equitable defense or cross-bill within the meaning of § 274b; and that the motion for a stay is an application for an interlocutory injunction based on the special defense. Compare Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109, 121. As bearing on this question of jurisdiction on appeal it is immaterial whether or not the terms of the contract sued on would preclude entry in a federal court of a decree for specific performance of the arbitration. Since the appeal here in question was taken within thirty days from the entry of the order denying the stay, the Court of Appeals had jurisdiction under § 129. Second. The plaintiff contends that the District Court was without power to grant the stay, because the contract provides that arbitration can be compelled only by proceedings in a state court of New York. The provision is that “ either party may apply to the Supreme Court of the State of New York for an order compelling specific performance of this arbitration agreement in accordance with the arbitration law of the State of New York.” The contract does not in terms prohibit proceedings in the federal court. Whether it should be construed so as to exclude the bringing of a suit in the federal court to compel specific performance of the agreement to arbitrate, we have no occasion to decide. For the District Court was not asked, in the proceedings now under review, to compel specific performance. The motion was to stay the action until arbitration shall have been had; and the direction of the Court of Appeals was limited to granting a stay. Section 3 of the United States Arbitra- SHANFEROKE CO. v. WESTCHESTER CO. 453 449 Opinion of the Court. tion Act provides broadly that the court may “ stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement.” We think the Court of Appeals was clearly right in concluding that there is no reason to imply that the power to grant a stay is conditioned upon the existence of power to compel arbitration in accordance with § 4 of the Act.2 * * * * * 8 Marine Transit Corp. v. Dreyfus, 284 U. S. 263, 274, is not to the contrary. There is, on the other hand, strong reason for construing the clause as permitting the federal court to order a stay even when it cannot compel the arbitration. For otherwise, despite congressional approval of arbitration, it would be impossible to secure a stay of an action in the federal courts when the arbitration agreement provides for compulsory proceedings exclusively in the state courts; since only in exceptional circumstances may a state court enjoin proceedings begun in a federal court. See Central National Bank v. Stevens, 169 U. S. 432. Compare § 265 of the Judicial Code; Kline v. Burke Construction Co., 260 U. S. 226. Third. The plaintiff also contends that the defendant was not entitled to a stay because its answer raised no arbitrable issues; and because, on the facts developed by the affidavits, the defendant appears to have waived its rights under the arbitration clause by unreasonable delay 2 In the lower federal courts there has been some difference of opinion as to whether a stay should be granted when the court is not in a position to compel arbitration. Compare Danielsen v. Entre Rios Ry. Co., 22 F. (2d) 326, 328, with The SUverbrook, 18 F. (2d) 144. See, too, The Beechwood, 35 F. (2d) 41; The Volsinio, 32 F. (2d) 357, 358; Ex parte De Simone, 36 F. (2d) 773; The Fredensbro, 18 F. (2d) 983. Interpretations of the English arbitration statutes are in accord with the view adopted here. See Law v. Garrett, L. R. 8 Ch. Div. 26 (C. A.); Austrian Lloyd S. S. Co. v. Gresham Life Assurance Society, [1903] 1 K. B. 249; Kirchner & Co. v. Gruban, [1909] 1 Ch. Div. 413; The Cap Blanco, [1913] Pro. Div. 130. 454 OCTOBER TERM, 1934. Syllabus. 293 U. S. in demanding arbitration. The reasons why these contentions are without merit are sufficiently stated in the opinion of the Court of Appeals. Affirmed. UNITED STATES et al. v. BALTIMORE & OHIO RAILROAD CO. et al. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO. No. 221. Argued December 12, 13, 1934.—Decided January 7, 1935. 1. Adoption of a rule requiring rail carriers to substitute power-operated for hand-operated reversing gear, if the latter is found to render the engine unsafe or to subject employees or others to “ unnecessary peril of life or limb,” is within the scope of the authority vested in the Interstate Commerce Commission by the amended Boiler Inspection Act. P. 458. 2. The Boiler Inspection Act, as amended, imposed upon the Interstate Commerce Commission responsibility for adequate safety rules, and to that end it granted to the Commission the power not only of disapproving rules proposed by the carriers but also of requiring modifications of rules in force. P. 459. 3. This power may properly be exercised on complaint of Brotherhoods representing employees. P. 461. 4. The Act confers authority on the Commission to prescribe by rule specific devices, or changes in equipment, only where these are required in order to remove “ unnecessary peril to life or limb ”; and a finding by the Commission to that effect is essential to the existence of the authority. P. 462. 5. To support an order of the Commission amending the rules under the Boiler Inspection Act so as to require substitution of power-operated for hand-operated reversing gear in steam locomotives, it must appear, and not merely by inference, that the Commission found that the use of the hand gear, as compared with the use of the power gear, causes unnecessary peril to life or limb. In the absence of such a finding, the order is void. P. 463. 5 F. Supp. 929, affirmed. UNITED STATES v. B. & 0. R. CO. 455 454 Opinion of the Court. Appeal from a decree of the District Court, constituted of three judges, which set aside an order of the Interstate Commerce Commission amending the rules under the Boiler Inspection Act. The suit was brought against the United States by a number of railroad companies suing on behalf of themselves and other railroads. The Commission and the chiefs of two organizations of locomotive engineers and firemen intervened. Mr. Daniel W. Knowlton, with whom Solicitor General Biggs, Assistant Attorney General Stephens, and Mr. Elmer B. Collins were on the brief, for the United States and the Interstate Commerce Commission. Mr. Harold N. McLaughlin, with whom Mr. Thomas Stevenson was on the brief, for Johnston et al., intervener-appellants. Messrs. Jacob Aronson and Nye F. Morehouse, with whom Messrs. R. V. Fletcher, Sidney S. Aiderman, H. Z. Maxwell, Clarence A. Miller, and Alfred P. Thom, Jr., were on the brief, for appellees. Mr. Justice Brandeis delivered the opinion of the Court. This is a direct appeal from the decree of the federal court for northern Ohio, setting aside an order, under the Boiler Inspection Act, entered by the Interstate Commerce Commission on January 5, 1933. At the date of the order there were in use in the United States about 31,597 steam locomotives equipped with hand reverse gear and 28,925 equipped with power reverse gear.1 Prior to the order, Rule 157, which prescribes the 1 As described in the carriers’ bill: “ The reversing gear, or ‘ reverse gear ’ as it is usually called, of a steam locomotive is the mechanism which controls the position and movement of the locomotive valve 456 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. reverse gear on locomotives, left it optional with railroads to equip them with either hand operated or power operated reverse gear.* 2 The order amended that rule so as to require the railroads to equip “ with a suitable type of power operated reverse gear ” all steam locomotives built on or after April 1, 1933; and similarly to equip, “the first time they are given repairs defined by the United States Railroad Administration as Class 3, or heavier,” all steam locomotives then in road service “ which weigh on driving wheels 150,000 pounds or more,” and all then used in switching service “ which weigh on driving wheels 130,000 pounds or more.” The order required that, in any event, all such steam locomotives be so equipped before January 1, 1937; and that “ air operated reverse gear [including thus power gear already installed] shall have a suitable steam connection ” so arranged “ that in case of air failure steam may be quickly used to operate the re- gear and valves which admit steam into the cylinders, and it is by means of this mechanism that the direction of movement of the locomotive is controlled, and the proper and economical use of steam is accomplished. Two general classes of reverse gears are in use, viz: (1) Manually operated reverse gears which depend upon the use of muscular force of the engineer and the force exerted by the counterbalancing weights and springs, for their operation; and (2) power reverse gears which supplement the above-mentioned forces with an auxiliary mechanism which, in normal operation, brings the force of compressed air into play, so that less muscular effort is normally required to be put forth by the engineer in using this type of gear. The engineer operates either class of gear by means of either a lever or handwheel (used with screw type of gear) located near his seatbox in the locomotive cab.” 2 Rule 157: “ Reverse Gear.—Reverse gear, reverse levers, and quadrants shall be maintained in a safe and suitable condition for service. Reverse lever latch shall be so arranged that it can be easily disengaged, and provided with a spring which will keep it firmly seated in quadrant. Proper counterbalance shall be provided for the valve gear.” UNITED STATES v. B. & 0. R. CO. 457 454 Opinion of the Court. verse gear.” A. Johnston v. Atlantic Coast Line R. Co., 190 I. C. C. 351. The order of the Commission was entered on a complaint of the Brotherhood of Locomotive Engineers and the Brotherhood of Locomotive Firemen and Enginemen. The complaint alleged, in substance, that while power reverse gear is a suitable, safe and practical device, manually operated reverse gear is inherently unsafe and unsuitable in principle and design; that it subjects employees and the traveling public to unnecessary peril; and that the use of locomotives equipped with hand reverse gears violates the Boiler Inspection Act. The complaint prayed that the Commission prescribe rules requiring that all steam locomotives be equipped “ with power reverse gear, or other devices adequate to protect the employees upon said locomotives from unnecessary peril to life or limb, as provided in section 2,” of the Act. Practically all the railroads of the United States were made respondents. They challenged in their answers the jurisdiction of the Commission on the grounds that the procedure was unauthorized and that a power reverse gear was not a safety device or appliance within the meaning of § 2 of the Boiler Inspection Act; denied the essential allegations of the complaint; and, as additional reason for refusing its prayer, set up the impaired financial condition of the carriers. These issues were referred for hearing to an examiner. Fifty-five days were devoted to the taking of testimony. The witnesses numbered 337. Their testimony covered 6,491 pages. There were introduced, in addition, 109 exhibits, many of them voluminous. The proposed report of the Examiner occupies 40 pages of the printed record in this Court; and the railroads’ exceptions to it, 60 pages. The exceptions were heard by a Division of the Commission consisting of three 458 OCTOBER TERM, 1934. Opinion of the Court. 293 TJ. S. members; and reargument before the whole Commission was denied. This suit to set aside the order was brought by Baltimore & Ohio Railroad and other carriers, suing on behalf of themselves and substantially all the other railroads. The original defendant was the United States. The Commission, Grand Chief Johnston of the Brotherhood of-Locomotive Engineers and President Robertson of the Brotherhood of Locomotive Firemen and Enginemen are defendants by intervention. The case was heard by the District Court, three judges sitting, on a transcript of the record before the Commission. The railroads again contended that the Commission lacked authority to entertain the complaint. They insisted also that the order was void for lack of essential findings of fact. These objections were overruled. But the court, citing among others, The Chicago Junction Case, 264 U. S. 258 and United States v. Abilene <& Southern Ry. Co., 265 U. S. 274, set the order aside, on the ground that the Commission had acted arbitrarily, in failing to give consideration and legal effect to pertinent, uncontradicted facts having a controlling bearing upon the issues, and in disregarding undisputed evidence. 5 F. Supp. 929. An appeal to this Court by all the defendants was allowed. The appellants contended that the action of the District Court constituted substitution of its judgment for that of the Commission. The argument here was devoted, in large part, to the consideration of the findings of the lower court charging disregard by the Commission of the evidence before it. For reasons which will be stated later, we have no occasion to enter upon that enquiry. First. The Commission clearly has authority, in an appropriate proceeding, to forbid the use of a locomotive equipped with a manually operated reverse gear if, by reason thereof, the engine is rendered unsafe or subjects employees of the railroad or others to “ unnecessary peril UNITED STATES v. B. & 0. R. CO. 459 454 Opinion of the Court. to life or limb.” The substitution of power operated reverse gear for manually operated reverse gear, might conceivably be found necessary to promote safety, even if it did so only indirectly by preventing the impairment of the health of engineers through excessive exertion or fatigue. To require the installation of power operated reverse gear is, in its nature, within the scope of the authority delegated to the Commission. For “ the power delegated to the Commission by the Boiler Inspection Act as amended is a general one.3 It extends to the design, the construction and the material of every part of the locomotive and tender and of all appurtenances.” Napier v. Atlantic Coast Line, 272 U. S. 605, 611. Second. The railroads contend that, in the proceeding under review, the Commission lacks authority to make any change of the existing rule concerning reverse gears; that authority to initiate changes in existing rules was denied to it; that the rules governing boilers and their appurtenances approved June 2, 1911, and the additional ones governing locomotives, tenders and appurtenances approved October 11, 1915, cannot be changed except upon application of the carriers or with their consent. The argument is that the Boiler Inspection Act is an independent and complete piece of legislation and thus the Commission is denied in respect to locomotives those general powers which it exercises in other connections; that by the original Act of 1911 the right to initiate rules was by § 5 conferred not upon the Commission, but upon the several railroads and, only to the extent that one or more of the carriers failed to act within three months, upon the chief inspector; that the Commission’s power of requiring modifications was limited to the rules originally filed; that in respect to subsequent changes therein, 8 February 17, 1911, c. 103, § 2, 36 Stat. 913; amended March 4, 1915, c. 169, 38 Stat. 1192; June 7, 1924, c. 355, 43 Stat. 659. 460 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. its sole function is that of approval or disapproval of the carriers’ proposals; and that the Commission’s only other authority in respect to locomotives is that, conferred by § 6, of reviewing the action of the chief inspector in declaring individual locomotives unfit for service. To hold that the authority of the Commission is thus limited would defeat, in large measure, the purpose of the legislation; and would be inconsistent with long established practice. Congress imposed the strictly administrative duties, in the main, upon the chief inspector. But it specifically directed, in § 6, that the “ first duty [of the district inspectors] shall be to see that the carriers make inspections in accordance with the rules and regulations established or approved by the Interstate Commerce Commission.” Upon the Commission were conferred, besides some strictly administrative powers, both quasilegislative and quasi-judicial functions. The latter it was authorized to exercise only in the appellate capacity of reviewing, under § 6, orders of the chief inspector declaring an individual locomotive unserviceable. Its legislative power was to be exercised in the making of rules. Section 5 of the original Act provided that “ each carrier subject to this Act shall file its rules and instructions for the inspection of locomotive boilers with the chief inspector within three months after the approval of this Act, and after hearing and approval by the Interstate Commerce Commission, such rules and instructions, with such modifications as the commission requires, shall become obligatory upon such carrier.” When this Act was passed, in 1911, there were doubtless already in force on each railroad some rules established by the carrier. And likewise, in 1915 and in 1924, when the scope of the Act was extended, there were doubtless in force on each railroad rules established by the carrier governing parts, appurtenances or engines, not falling within the field covered by the previously existing legislation. Naturally those carrier- UNITED STATES v. B. & 0. R. CO. 461 454 Opinion of the Court. rules would be the starting point in the Commission’s rule making; and, naturally, it would be much influenced, as well as instructed, by the chief inspector’s proposals or recommendations. But the responsibility for rules adequate to ensure safety was imposed by Congress upon the Commission; and to discharge that duty, it was essential that the Commission, also, should possess the initiative in rule making. To this end, it was granted the power, not only of disapproving proposed rules, but also of requiring modifications of those in force. The power so conferred may obviously be exercised, as was done here, on complaint of the Brotherhoods representing employees directly affected. In the Napier case, the question directly before the Court was not the authority of the Commission to initiate rules. It was the validity of state laws and rules prescribing specific safety devices on locomotives. But the objection now raised by the railroads was discussed by counsel and was considered by the Court. The validity of the state laws and regulations was challenged on the ground that the Boiler Inspection Act had occupied the field; and as the question whether it had done so was one of statutory construction, the provisions of the Act were necessarily examined. The conclusion that the Commission possesses the authority to make rules on its own initiative, or upon complaint, was the basis of the decision there made. (See pp. 611-613.) Referring to the argument of the States “ that the authority delegated to the Commission does not extend to ordering the use or installation of equipment of any kind, Baltimore & Ohio R. R. Co. v. Groeger, 266 U. S. 521,” we said: “ The duty of the Commission is not merely to inspect. It is, also, to prescribe the rules and regulations by which the fitness for service shall be determined. Unless these rules and regulations are complied with, the engine is not ‘ in proper condition ’ for operation. Thus the Commission 462 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. sets the standard. By setting the standard it imposes requirements. The power to require specific devices was exercised before the amendment of 1915 and has been extensively exercised since.” In closing the opinion, we added: “ If the protection now afforded by the Commission’s rules is deemed inadequate, application for relief must be made to it. The Commission’s power is ample.” In the Napier case this Court listed in the margin 18 rules which had, before 1925, been amended by order of the Commission.4 Acting upon the suggestion there made by this Court, the state authorities and the Brotherhoods applied to the Commission for relief in proceedings similar to those here under review and rules were prescribed by it. All the railroads either conceded its authority to do so or acquiesced in its final orders. Cab Curtain Case, 142 I. C. C. 199, 201; Fire Door Case, 151 I. C. C. 448, 450. Compare Rules for Testing other than Steam Power Locomotives, 122 I. C. C. 414; Staten Island Rapid Transit Ry. Co. v. Public Service Commission, 16 F. (2d) 313. Third. The railroads contend that to support the order certain basic findings are essential; that these were not made; and that, hence, the order is void. This contention is in our opinion sound. The Act does not confer upon the Commission legislative authority to require the adoption on locomotives of such devices as, in its discretion, it may from time to time deem desirable. The operation of an engine, however equipped, involves some “ danger to life or limb.” At common law the carriers were “ free to determine how their boilers should be kept 4 The railroads state that the Commission’s orders disclose that “ a considerable number ” of the changes were brought about as a result of conferences between the chief inspector and committees representing all the railroads, or upon requests of representatives of the carriers, which modifications were agreed to by the representatives of the employees interested and by the chief inspector. UNITED STATES v. B. & 0. R. CO. 463 454 Opinion of the Court. in proper condition for use without unnecessary danger.” Baltimore & Ohio R. Co. v. Groeger, 266 U. S. 521, 529. And the Act conferred authority to prescribe by rule specific devices, or changes in the equipment, only where these are required to remove “ unnecessary peril to life or limb.” The power to make the determination whether the proposed device or change is so required, vests in the Commission. But its finding to that effect is essential to the existence of authority to promulgate the rule; and as Congress has made affirmative orders of the Commission subject to judicial review, The Chicago Junction Case, 264 U. S. 258, 263-265,5 the order may be set aside unless it appears that the basic finding was made. Florida v. United States, 282 U. S. 194. The primary question of fact presented for determination was, as the report of the Commission states, “ whether the use of locomotives equipped with hand reverse gear, as compared with power reverse gear, causes unnecessary peril to life or limb.” The report discusses, at some length, the alleged advantages and disadvantages of the two classes of reverse gear and the expense which the proposed change would entail; and concludes with “ findings ” that, to a certain extent, the change should be made.6 But whether the use of any or all types of B Compare United States v. Atlanta, B. & C. R. Co., 282 U. S. 522, 527-529. 6The closing paragraphs of the report are: “On the record in this case we conclude and find that the safety of employees and travelers on railroads requires that all steam locomotives built on or after April 1, 1933, be equipped with a suitable type of power-operated reverse gear.. “We further find that all steam locomotives used in road service built prior to April 1, 1933, which weigh on driving wheels 150,000 pounds or more, and all steam locomotives used in switching service built prior to April 1, 1933, which weigh on driving wheels 130,000 pounds or more, shall have such power-operated reverse gear applied the first time they are given repairs defined by the United States 464 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. steam locomotives “ equipped with hand reverse gear as compared with power reverse gear causes unnecessary peril to life op limb,” is left entirely to inference. This complete absence of “ the basic or essential findings required to support the Commission’s order ” renders it void. Florida v. United States, 282 U. S. 194, 215. Compare Wichita Railroad & Light Co. v. Public Utilities Comm’n, 260 U. S. 48, 58-59; Mahler v. Eby, 264 U. S. 32, 44—45.7 In the Florida case the legal distinction was pointed out between what may be termed quasi-jurisdictional findings, there held to be indispensable, and the “ complete statement of the grounds of the Commission’s determination ” which was declared in Beaumont, S. L. & W. Ry. Co. v. United States, 282 U. S. 74, 86, to be desirable for a proper consideration of the case in the courts. The lack of such a complete statement, while always regrettable, because unnecessarily increasing the labor of Railroad Administration as class 3, or heavier, and that all such locomotives shall be so equipped before January 1, 1937. “We further find that air-operated power reverse gear should have a suitable steam connection so arranged and maintained that it can quickly be used in case of air failure. “ An appropriate order amending our rules for the inspection and testing of steam locomotives and tenders and their appurtenances to give effect to these findings will be entered.” ’The objection presented here is similar to that urged upon the Court in United States v. Louisiana, 290 U. S. 70, 80. There, however, the Court was satisfied that the essential findings had been made, although “ the particular form in which they were cast [was] not to be commended.” Compare Georgia Comm’n v. United States, 283 U. S. 765, 773; Alabama v. United States, 283 U. S. 776, 779; Louisiana Public Service Comm’n v. Texas & N. O. R. Co., 284 U. 8. 125, 132; Illinois Commerce Comm’n v. United States, 292 U. S. 474, 481-483; Ohio v. United States, 292 U. S. 498, 511; Montana v. United States, 2 F. Supp. 448, aff’d 290 U. S. 593; Kentucky v. United States, 3 F. Supp. 778. See, too, New York v. United States, 257 U. S. 591, 600. GREGORY v. HELVERING. 465 454 Syllabus. the reviewing court, compare Virginian Ry. v. United States, 272 U. S. 658, 675, is not fatal to the validity of the order. It is true that formal and precise findings are not required, under § 14 (1) of the Interstate Commerce Act, which declares that the report “ shall state the conclusions of the Commission together with its decision.” 8 Compare Manufacturers Ry. Co. v. United States, 246 U. S. 457, 487; Meeker & Co. v. Lehigh Valley R. Co., 236 U. S. 412, 428. That provision relieves the Commission from making comprehensive findings of fact similar to those required .by Equity Rule 70%. But § 14 (1) does not remove the necessity of making, where orders are subject to judicial review, quasi-jurisdictional findings essential to their constitutional or statutory validity.9 * * * * 14 Affirmed. GREGORY v. HELVERING, COMMISSIONER OF INTERNAL REVENUE. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 127. Argued December 4, 5, 1934.—Decided January 7, 1935. 1. A corporation wholly owned by a taxpayer transferred 1000 shares of stock in another corporation held by it among its assets to a new corporation, which thereupon issued all of its shares to the 8 The original Act of February 4, 1887, c. 104, § 14, 24 Stat. 384, which had prescribed that the report should “ include findings of fact upon which the conclusions of the Commission are based,” was amended by § 3 of the Act of June 29, 1906, c. 3591, 34 Stat. 589, so as to require (except in reparation cases) that it shall make a report “ which shall state the conclusions of the commission together with its decision, order, or requirement in the premises.” 8 A different rule has been applied to executive action not subject to review. Compare Philadelphia & Trenton R. Co. v. Stimpson, 14 Pet. 448, 458; United States v. Chemical Foundation, 272 U. S. 1, 14-15. 89995°—35---30 466 OCTOBER TERM, 1934. Counsel for Parties. 293 U.S. taxpayer. Within a few days the new corporation was dissolved and was liquidated by the distribution of the 1000 shares to the taxpayer, who immediately sold them for her individual profit. No other business was transacted, or intended to be transacted, by the new corporation. The whole plan was designed to conform to § 112 of the Revenue Act of 1928 as a “ reorganization,” but for the sole purpose of transferring the shares in question to the taxpayer, with a resulting tax liability less than that which would have ensued from a direct transfer by way of dividend. Hdd: while the plan conformed to the terms of the statute, there was no reorganization within the intent of the statute. P. 468. 2. By means which the law permits, a taxpayer hds the right to decrease the amount of what otherwise would be his taxes, or altogether to avoid them. P. 469. 3. The rule which excludes from consideration the motive of tax avoidance is not pertinent to the situation here, because the transaction upon its face lies outside the plain intent of the statute. P. 470. 69 F. (2d) 809, affirmed. Certiorari * to review a judgment reversing a decision of the Board of Tax Appeals, 27 B. T. A. 223, which set aside an order of the Commissioner determining a deficiency in income tax. Mr. Hugh Satterlee, with whom Messrs. George W. Saam, Rollin Browne, and Charles A. Roberts were on the brief, for petitioner. Solicitor General Biggs, with whom Assistant Attorney General Wideman and Messrs. Sewall Key and Norman D. Keller were on the brief, for respondent. By leave of Court, briefs of amici curiae were filed by Messrs. Ellsworth C. Alvord and Edward H. McDermott, and by Messrs. Albert E. James, A. Calder Mackay, George M.. Morris, Willis D. Nance, Charles B. Rugg, Whitney North Seymour, and Harry N. Wyatt, in support of petitioner’s contentions. * See Table of Cases Reported in this volume. GREGORY v. HELVERING. 467 465 Opinion of the Court. Mr. Justice Sutherland delivered the opinion of the Court. Petitioner in 1928 was the owner of all the stock of United Mortgage Corporation. That corporation held among its assets 1,000 shares of the Monitor Securities Corporation. For the sole purpose of procuring a transfer of these shares to herself in order to sell them for her individual profit, and, at the same time, diminish the amount of income tax which would result from a direct transfer by way of dividend, she sought to bring about a “ reorganization ” under § 112 (g) of the Revenue Act of 1928, c. 852, 45 Stat. 791, 818,. set forth later in this opinion. To that end, she caused the Averill Corporation to be organized under the laws of Delaware on September 18, 1928. Three days later, the United Mortgage Corporation transferred to the Averill Corporation the 1,000 shares of Monitor stock, for which all the shares of the Averill Corporation were issued to the petitioner. On September 24, the Averill Corporation was dissolved, and liquidated by distributing all its assets, namely, the Monitor shares, to the petitioner. No other business was ever transacted, or intended to be transacted, by that company. Petitioner immediately sold the Monitor shares for $133,333.33. She returned for taxation as capital net gain the sum of $76,007.88, based upon an apportioned cost of $57,325.45. Further details are unnecessary. It is not disputed that if the interposition of the so-called reorganization was ineffective, petitioner became liable for a much larger tax as a result of the transaction. The Commissioner of Internal Revenue, being of opinion that the reorganization attempted was without substance and must be disregarded, held that petitioner was liable for a tax as though the United corporation had paid her a dividend consisting of the amount realized from the sale of the. Monitor shares. In a proceeding before the 468 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. Board of Tax Appeals, that body rejected the commissioner’s view and upheld that of petitioner. 27 B. T. A. 223. Upon a review of the latter decision, the circuit court of appeals sustained the commissioner and reversed the board, holding that there had been no “ reorganization ” within the meaning of the statute. 69 F. (2d) 809. Petitioner applied to this court for a writ of certiorari, which the government, considering the question one of importance, did not oppose. We granted the writ. Section 112 of the Revenue Act of 1928 deals with the subject of gain or loss resulting from the sale or exchange of property. Such gain or loss is to be recognized in computing the tax, except as provided in that section. The provisions of the section, so far as they are pertinent to the question here presented, follow: “Sec. 112. (g) Distribution of stock on reorganization.—If there is distributed, in pursuance of a plan of reorganization, to a shareholder in a corporation a party to the reorganization, stock or securities in such corporation or in another corporation a party to the reorganization, without the surrender by such shareholder of stock or securities in such a corporation; no gain to the distributee from the receipt of such stock or securities shall be recognized. . . . “(i) Definition of reorganization.—As used in this section . . . “(1) The term ‘reorganization’ means . . . (B) a transfer by a corporation of all or a part of its assets to another corporation if immediately after the transfer the transferor or its stockholders or both are in control of the corporation to which the assets are transferred, . . .” It is earnestly contended on behalf of the taxpayer that since every element required by the foregoing subdivision (B) is to be found in what was done, a statutory reorganization was effected; and that the motive of the taxpayer thereby to escape payment of a tax will not alter the result 465 GREGORY v. HELVERING. Opinion of the Court. 469 or make unlawful what the statute allows. It is quite true that if a reorganization in reality was effected within the meaning of subdivision (B), the ulterior purpose mentioned will be disregarded. The legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted. United States n. Isham, 17 Wall. 496, 506; Superior Oil Co. v. Mississippi, 280 U. S. 390, 395-6; Jones n. Helvering, 63 App. D. C. 204; 71 F. (2d) 214, 217. But the question for determination is whether what was done, apart from the tax motive, was the thing which the statute intended. The reasoning of the court below in justification of a negative answer leaves little to be said. When subdivision (B) speaks of a transfer of assets by one corporation to another, it means a transfer made “ in pursuance of a plan of reorganization” [§ 112(g)] of corporate business; and not a transfer of assets by one corporation to another in pursuance of a plan having no relation to the business of either, as plainly is the case here. Putting aside, then, the question of motive in respect of taxation altogether, and fixing the character of the proceeding by what actually occurred, what do we find? Simply an operation having no business or corporate purpose—a mere device which put on the form of a corporate reorganization as a disguise for concealing its real character, and the sole object and accomplishment of which was the consummation of a preconceived plan, not to reorganize a business or any part of a business, but to transfer a parcel of corporate shares to the petitioner. No doubt, a new and valid corporation was created. But that corporation was nothing more than a contrivance to the end last described. It was brought into existence for no other purpose; it performed, as it was intended from the beginning it should perform, no other function. 470 OCTOBER TERM, 1934. Syllabus. 293 U. S. When that limited function had been exercised, it immediately was put to death. In these circumstances, the facts speak for themselves and are susceptible of but one interpretation. The whole undertaking, though conducted according to the terms of subdivision (B), was in fact an elaborate and devious form of conveyance masquerading as a corporate reorganization, and nothing else. The rule which excludes from consideration the motive of tax avoidance is not pertinent to the situation, because the transaction upon its face lies outside the plain intent of the statute. To hold otherwise would be to exalt artifice above reality and to deprive the statutory provision in question of all serious purpose. Judgment affirmed. TAYLOR v. STERNBERG, TRUSTEE IN BANKRUPTCY.1 CERTIORARI TO THE CIRÔUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 261. Argued December 14, 1934.—Decided January 7, 1935. 1. After the filing of a petition in bankruptcy against a corporation in the federal district court, a state court is without jurisdiction to make an order fixing the compensation of a receiver and his attorney theretofore appointed by it.’ P. 472. 2. In respect of sums thus erroneously awarded to and retained by the receiver and his attorney, they are not “ adverse ” claimants, and the bankruptcy court has authority to compel them to turn over thé same by summary proceeding and order. P. 473. 71 F. (2d) 157, affirmed. 1 Together with No. 262, Duty n. Sternberg, Trustee in Bankruptcy, certiorari to the Circuit Court of Appeals for the Eighth Circuit. TAYLOR v. STERNBERG. 471 470 Opinion of the Court. Certiorari 2 to review a judgment affirming a judgment of the District Court, sitting in bankruptcy, which affirmed an order of the referee granting the trustee’s application for a turnover order. Mr. W. N. Ivie submitted for petitioners. Mr. Clinton R. Barry for respondent. Mr. Justice Sutherland delivered the opinion of the Court. These cases, depending upon the same facts, present the same question. On January 10, 1931, in an insolvency proceeding, Taylor was appointed by a state chancery court in Arkansas receiver of the Parks Dry Goods Company, and Duty as his attorney. On February 11th, a month later, a petition in bankruptcy against the corporation was filed in the federal district court having jurisdiction. Two days later, the corporation was adjudicated a bankrupt. On the same day, the chancery court allowed Taylor compensation as receiver in the sum of $1500, and Duty compensation as attorney in the sum of $500. The receiver turned over the estate to the trustee with the exception of these sums, which petitioners refused to deliver. The trustee applied for a summary order upon petitioners, directing them to turn over to him the sums thus withheld. The referee granted the trustee’s application, which the district court, sitting in bankruptcy, affirmed; and this, in turn, was affirmed upon appeal by the circuit court of appeals. 71 F. (2d) 157. Upon these facts, the question presented is whether the bankruptcy court had authority to compel the turn-over by summary proceeding and order, or whether petitioners 2 See Table of Cases Reported in this volume. 472 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. were adverse claimants so that a plenary action was required. Upon adjudication in bankruptcy, all the property of the bankrupt vests in the trustee as of the date of the filing of the petition. Upon such filing, the jurisdiction of the bankruptcy court becomes paramount and exclusive; and thereafter that court’s possession and control of the estate cannot be affected by proceedings in other courts, whether state or federal. Gross v. Irving Trust Co., 289 U. S. 342, 344; Acme Harvester Co. v. Beekman Lumber Co., 222 U. S. 300, 307; In re Diamond’s Estate, 259 Fed. 70, 73. This applies while the possession is constructive as well as when it becomes actual. Mueller v. Nugent, 184 U. S. 1, 14; Taubel-Scott-Kitzmiller Co. v. Fox, 264 U. S. 426, 432-433; Orinoco Iron Co. v. Metzel, 230 Fed. 40, 44-45, and cases cited. The status of a receiver is unlike, for example, that of an assignee for the benefit of creditors. The receiver is an officer of the court which appoints him. Stuart v. Boulware, 133 U. S. 78, 81. The property in his hands is not, in a legal sense, in his possession. It is in the possession of the court, whose appointee he is, by him as its officer. Thompson v. Phenix Ins. Co., 136 U. S. 287, 297; Fosdick v. Schall, 99 U. S. 235, 251. In the present case, with the supervening bankruptcy, the possession of the state court came to an end, and that of the bankruptcy court immediately attached. This result was binding upon the state court and equally binding upon the receiver as custodian for that court. Before the petition in bankruptcy was filed, the receiver’s compensation as well as that of his counsel were matters wholly within the control of the state court. Stuart v. Boulware, supra, at pp. 81-82; High on Receivers, 4th ed., § 781. But with the TAYLOR v. STERNBERG. 473 470 Opinion of the Court. filing of the petition in bankruptcy, the power of the state court in that respect ceased; and its order fixing the compensation of the receiver and his counsel was a nullity because made without jurisdiction, such jurisdiction then having passed to the bankruptcy court. Gross v. Irving Trust Co., supra. Since the order of the state court was the sole foundation for their claims and that was void, petitioners had no more right to the sums subtracted or to be subtracted from the estate than they had to the remainder of the estate. That estate, including such sums, was still in custodia legis—only the possession had passed automatically from the state court to the bankruptcy court. Thereafter, the estate in its entirety was held by the receiver as a mere repository for the bankruptcy court and, therefore, not adversely; and petitioners, in respect of that part of it erroneously awarded as compensation, were in no sense adverse claimants. Their claims were colorable only and subject to the summary power of the bankruptcy court. In re Watts, 190 U. S. 1, 27; In re Diamond’s Estate, supra, at p. 74; Moore v. Scott, 55 F. (2d) 863; Bank of Andrews v. Gudger, 212 Fed. 49; In re Crosby Stores, Inc., 61 F. (2d) 812, 814. Cases dealing with assignments, like Louisville Trust Co. v. Coming or, 184 U. S. 18, cited by petitioners, in no way militate against this conclusion. The situation presented in each of those cases substantially differs from that presented here. See May v. Henderson, 268 U. S. 111, 115-6; In re Louis Neuburger, Inc., 233 Fed. 701, aff’d 240 Fed. 947. Moreover, the status of a receiver and that of an assignee, as already sufficiently appears, is essentially different. Judgment affirmed. 474 OCTOBER TERM, 1934. Syllabus. DIMICK v. SCHIEDT. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. No. 78. Submitted November 9, 1934.—Decided January 7, 1935. 1. Under the Seventh Amendment, a federal court, finding a verdict inadequate, is without power to add to it by refusing to grant the plaintiff a new trial if the defendant will accept an increase which the court deems sufficient. So held in an action for personal injuries due to negligence. 2. In order to ascertain the scope and meaning of the Seventh Amendment, resort must be had to the appropriate rules of the common law established at the time of the adoption of that constitutional provision in 1791. P. 476. English cases examined on the power of the courts to increase damages, super visum vulneris, in actions for mayhem; and upon writ of inquiry, and in actions of debt. 3. Upon an examination of many English authorities, it is concluded that while there was some practice to the contrary in respect of decreasing damages, the established practice and the rule of the common law, as it existed in England at the time of the adoption of the Constitution, forbade the court to increase the amount of damages awarded by a jury in actions sounding in tort such as the present one. P. 482. 4. The authority exercised by federal courts of denying a motion for a new trial because of an excessive verdict if the plaintiff will remit the excess, is embedded in long practice, and has plausible support in the view that what remains of the recovery was found by the jury in the sense that it was included in the verdict along with the unlawful excess, the effect of the remittitur being merely to lop off an excrescence; but where the verdict is too small, an increase by the court is a bald addition of something never included in the verdict. The trial court cannot by assessing an additional amount of damages with the consent of the defendant only, bring the constitutional right of the plaintiff to an end in respect of a matter of fact which no jury has ever passed upon, either explicitly or by implication. P. 482. 5. In the discharge of its duty of construing and upholding the Constitution, the Court must ever be alert to prevent the subversion of DIMICK v. SCHIEDT. 475 474 Opinion of the Court. fundamental principles through the extension of doubtful precedents by analogy. P. 485. 6. Maintenance of the jury as a fact-finding body is of such importance, and occupies so firm a place in our history and jurisprudence, that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care. P. 486. 7. The effect of the Seventh Amendment was to adopt the commonlaw rules of jury trial as they existed in 1791; and these, being in effect part of the Constitution, can not be altered now under pretense of adapting the common law to altered conditions. P. 487. 70 F. (2d) 558, affirmed. Certiorari * to review the reversal of a judgment for damages in an action for personal injuries, entered on denial of the plaintiff’s motion for a new trial, after the plaintiff had declined to accept an increase offered by the court and agreed to by the defendant. Messrs. Leo. M. Harlow and David H. Fulton submitted for petitioner. Mr. John G. Palfrey submitted for respondent. Mr. Justice Sutherland delivered the opinion of the Court. This is an action brought by respondent (plaintiff) against petitioner (defendant) in the federal district court for the district of Massachusetts to recover damages for a personal injury resulting from the alleged negligent operation of an automobile on a public highway in Massachusetts. The jury returned a verdict in favor of respondent for the sum of $500. Respondent moved for a new trial on the grounds that the verdict was contrary to the weight of the evidence, that it was a compromise verdict, and that the damages allowed were inadequate. The trial court ordered a new trial upon the last named * See Table of Cases Reported in this volume. 476 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. ground, unless petitioner would consent to an increase of the damages to the sum of $1500. Respondent’s consent was neither required nor given. Petitioner, however, consented to the increase, and in accordance with the order of the court a denial of the motion for new trial automatically followed. Respondent appealed to the circuit court of appeals, where the judgment was reversed, the court holding that the conditional order violated the Seventh Amendment of the Federal Constitution in respect of the right of trial by jury. 70 F. (2d) 558. That court recognized the doctrine, frequently stated by this court, that in the case of an excessive verdict it is within the power of the trial court to grant defendant’s motion for a new trial unless plaintiff remit the amount deemed to be excessive, but held that the trial court was without power to condition the allowance of plaintiff’s motion for a new trial upon the refusal of defendant to consent to an increase in the amount of damages. The Seventh Amendment provides: “ In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” Section 269 of the Judicial Code, as amended, U. S. C. Title 28, § 391, confers upon all federal courts power to grant new trials “ in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law . . .” In order to ascertain the scope and meaning of the Seventh Amendment, resort must be had to the appropriate rules of the common law established at the time of the adoption of that constitutional provision in 1791. Thompson v. Utah, 170 U. S. 343, 350; Patton v. United States, 281 U. S. 276, 288. A careful examination of the English reports prior to that time fails to disclose any DIMICK v. SCHIEDT. 477 474 Opinion of the Court. authoritative decision sustaining the power of an English court to increase, either absolutely or conditionally, the amount fixed by the verdict of a jury in an action at law, with certain exceptions. 1. In actions for mayhem, there are numerous ancient cases to be found in the Year Books, and occasional cases at a somewhat later period, in which the right of the court to increase damages awarded plaintiff, super visum vul-neris, is recognized. We deem it unnecessary to catalogue or review these cases. Many of them are referred to in 2 Bacon’s Abridgment (7th ed.) 611, and Sayer’s Law of Damages (1770), p. 173 et seq. The last case called to our attention or that we have been able to find that recognized the rule is that of Brown n. Seymour (1742), 1 Wils. 5, where the court, while conceding its power to increase damages upon view of the party maimed, refused to exercise it, holding the damages awarded were sufficient. We have found no case where the power was exercised affirmatively since Burton v. Baynes (1733), reported in Barnes Practice Cases, 153, where the court, upon view of the injury, increased the damages from £11, 14 s., to £50. The power of the trial court to increase damages in such cases was seldom exercised; and it seems quite clear, from an examination of the decisions and of the English Abridgments, that the generally approved practice confined its exercise to the court sitting en banc. Moreover, the application for the increase was made by the plaintiff, considered upon a view of his wound, and, when favorably acted upon, granted absolutely and not as a condition upon which to base a denial of a new trial. Indeed, the practice of granting new trials in such cases did not come into operation until a later date. In any event, the rule was obsolete in England at the time of the adoption of the Constitution; and we are unable to find that it ever was acted upon or accepted in the colonies, or by any of the federal or state courts since the adoption of the Constitu 478 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. tion. It was expressly rejected in an early case in South Carolina. McCoy v. Lemon, 11 Rich. 165. There, the plaintiff, as a result of an altercation with the defendant, lost an eye and the use of one thumb. The jury returned a verdict for $30. The trial court, although conceding the inadequacy of the damages, held that no court possessed the power to bring about an increase or decrease of the amount found by a jury in any other way than by granting a new trial. The Court of Appeals sustained the trial court. “ Not a single case,” the appellate court said, “ has been found in any book of American reports in support of the present motion, notwithstanding the great research displayed by counsel. Neither has there been, for a period of more than a century, any recognition of the rule by any adjudged case in England to which we have been able to procure access.” After pointing out the jealous regard of the American people, as evidenced by constitutions and legislation, for the right of jury trial, the court said that the judgment of the jury had been incorporated as an indispensable element in the judicial administration of the country; that in all cases sounding in damages, these damages must be assessed by the jury and not by the court independently thereof; and that where the verdict was excessive or trifling, the remedy was k> submit the case co the judgment of another jury. In Mayne’s Treatise on Damages (9th ed.), the first edition of which appeared in 1856, after referring to the long current of English decisions in respect of the power of the court to increase damages in mayhem cases, the author (p, 571) said he was not aware of an instance in which such a jurisdiction had been exercised in modern times. And see Union Pacific Ry. Co. v. Botsford, 141 U. S. 250, 252. 2. The power of the court to increase or diminish damages assessed upon a writ of inquiry was likewise upheld ; but this upon the ground that the justices might themselves have awarded damages without the writ, and the DIMICK v. SCHIEDT. 479 474 Opinion of the Court. inquisition, therefore, was nothing more than an inquest for their information. Sayer’s Law of Damages, 194; Beardmore v. Carrington, 2 Wils. 244, 248; Brooke’s New Cases, March’s Translation, 56-57; 2 Bacon’s Abridgement (7th ed.), 612. But even this rule seems long since to have fallen into disuse, the more modern practice being to award a new writ of inquiry in all cases in which the court would award a new trial. Mayne’s Treatise on Damages, 572, 573, citing Chitty’s Practice, 14th ed., p. 1326. 3. So it was held in some of the old cases that where the amount of plaintiff’s demand was certain, as, for example, in an action of debt, the court had authority to increase or abridge the verdict of the jury. Mayne’s Treatise on Damages, 571; Sayer’s Law of Damages, 177. In Beardmore v. Carrington, supra, decided in 1764, the court reviewed the subject and reached the conclusion that the English courts were without power to either increase or abridge damages in any action for a personal tort, unless in the exceptional cases just noted. The decision is most instructive, as a brief quotation will show. The italics are in the original. “ It is clear,” the court said at p. 248, “ that the practice of granting new trials is modern, and that courts anciently never exercised this power, but in some particular cases they corrected the damages from evidence laid before them. There is great difference between cases of damages which [may] be certainly seen, and such as are ideal, as between assumpsit, trespass for goods where the sum and value may be measured, and actions of imprisonment, malicious prosecution, slander and other personal torts, where the damages are matter of opinion, speculation, ideal; there is also a difference between a principal verdict of a jury, and a writ of inquiry of damages, the latter being only an inquest of office to inform the conscience of the court, and which they might have assessed 480 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. themselves without any inquest at all; only in the case of maihem, courts have in all ages interposed in that single instance only; as to the case of the writ of inquiry in the year-book of HA, we doubt whether what is said by the court in that case be right, That they would abridge the damages unless the plaintiff would release part thereof, because there is not one case to be found in the year-books wherever the court abridged the damages after a principal verdict, and this is clear down to the time of Palmer’s Rep. 314, much less have they interposed in increasing damages, except in the case of maihem; . . .” Sayer, writing between 1765 and 1770 (Sayer’s Law of Damages, 173) says that the power of increasing or abridging damages which have been assessed by the jury “ has not for many years been exercised by courts in any action except in an action for a corporal hurt ”; by which he means, as appears further along, in cases of mayhem. Mayne, in the treatise already cited says (p. 571) that it was always admitted “ that in cases where the amount of damages was uncertain their assessment was a matter so peculiarly within the province of the jury that the Court should not alter it.” Recent English decisions fully confirm this view in respect of the common law rule as it existed at the time of the adoption of the Constitution. Thus Mayne (p. 580) says: “ When an excessive verdict is given, it is usual for the judge to suggest to counsel to agree on a sum, to prevent the necessity of a new trial. In the absence of agreement the Court has no power to reduce the damages to a reasonable sum instead of ordering a new trial. It would seem also from what was said in the case in which this was recently decided, that where the damages are too small, the Court cannot with the defendant’s consent increase them, if the plaintiff asks for a new trial.” It is true that Belt v. Lawes, L. R. 12 Q. B. Div. 356, upheld the authority of the court to deny a new trial DIMICK v. SCHIEDT. 481 474 Opinion of the Court. upon the consent of the plaintiff to reduce the damages to an amount which the court would consider not excessive had they been given by the jury; and that the Master of the Rolls in his opinion declared that he was by no means prepared to say that the court might not refuse a new trial if a defendant would agree that the damages should be larger. But this doctrine was expressly repudiated by the House of Lords in Watt v. Watt, L. R. [1905] A. C. 115; and Belt v. Lawes was definitely overruled. In the Watt case, the principal opinion (pp. 119-120) pointed out that the notion that the court with the consent of the plaintiff could reduce the amount of the damages probably arose from the fact that in the old cases the courts had “ adopted the somewhat unconstitutional proceeding of refusing to give the plaintiff judgment unless he would consent to reduce his claim to what ought to be considered reasonable ”; that this indirect method shows that the plaintiff’s assent was required; and that, since the defendant was not likely to refuse his assent to a proceeding intended for his benefit, the theory of the cases seems to have been that the right of the court to interfere with the verdict depended upon the assent of both parties. It was conceded in the opinions delivered to the House that there had been a certain amount of practice in accordance with the course complained of, but in principle, it was said, this practice was indefensible, and that no reasoned vindication of it had been found. The prevailing opinions in Barbour & Co. v. Deutsche Bank, L. R. [1919] A. C. 304, while distinguishing the case then under review, are (as all the opinions are) in full accord with the decision in the Watt case. Lord Phillimore, in the course of his opinion (p. 335), characterized that decision as one of inconvenient rigor but nevertheless unimpeachable and logical. The principle established, he said, was this: 89995°—35-31 482 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. “ Where damages are at large and the Court of Appeal is of opinion that the sum awarded is so unreasonable as to show that the jury has not approached thé subject in a proper judicial temper, has admitted considerations which it ought not to have admitted, or rejected or neglected considerations which it ought to have applied, it is the right of the party aggrieved to have a new trial. He is not to be put off by the Court saying that it will form its opinion as to the proper sum to be awarded, and reduce or enlarge the damages accordingly. He is entitled to an assessment by a jury which acts properly. He is not to be put off by a composite decision, or I might describe it as a resultant of two imperfect forces—an assessment partly made by a jury which has acted improperly and partly by a tribunal which has no power to assess.” From the foregoing and from many other English authorities which we have examined, but deem it unnecessary to cite, we conclude that, while there was some practice to the contrary in respect of decreasing damages, the established practice and the rule of the common law, as it existed in England at the time of the adoption of the Constitution, forbade the court to increase the amount of damages awarded by a jury in actions such as that here under consideration. We could well rest this opinion upon that conclusion, were it not for the contention that our federal courts from a very early day have upheld the authority of a trial court to deny a motion for new trial because damages were found to be excessive, if plaintiff would consent to remit the excessive amount, and that this holding requires us to recognize a similar rule in respect of increasing damages found to be grossly inadequate. There is a decision by Mr. Justice Story, sitting on circuit, authorizing such a remittitur, as early as 1822. Blunt v. Little, 3 Mason 102. There, the jury returned a verdict 474 DIMICK v. SCHIEDT. Opinion of the Court. 483 for 82,000 damages, suffered as a result of a malicious arrest. Defendant moved for a new trial on the ground that the damages were excessive. The court asserted its power to grant a new trial upon that ground, but directed that the cause should be submitted to another jury unless plaintiff was willing to remit 8500 of the damages. This view of the matter was accepted by this Court in Northern Pacific R. Co. v. Herbert, 116 U. S. 642, 646-7, and has been many times reiterated. See, for example, Arkansas Cattle Co. v. Mann, 130 U. S. 69, 73; Kennon v. Gilmer, 131 U. S. 22, 29; Koenigsberger v. RibRanond Silver Mining Co., 158 U. S. 41, 52; German Alliance Ins. Co. v. Hale, 219 U. S. 307, 312; Gila Valley, G. & N. Ry. Co. v. Hall, 232 U. S. 94, 103-5. Since the decision of Mr. Justice Story in 1822, this court has never expressed doubt in respect of the rule, and it has been uniformly applied by the lower federal courts. It is, however, remarkable that in none of these cases was there any real attempt to ascertain the common law rule on the subject. Mr. Justice Story, in the Blunt case, cited two English cases antedating the Constitution in support simply of his conclusion that the court had power to grant a new trial for excessive damages, and thereupon announced without more that unless the plaintiff should be willing to remit 8500 of his damages, the cause would be submitted to another jury. For the latter conclusion, no authority whatever was cited. The plaintiff remitted the amount, and the motion was overruled. The opinion in the Herbert case was delivered by Mr. Justice Field. Upon the question now under consideration, the opinion does no more than declare that the exaction, as a condition of refusing a new trial, that plaintiff should remit a portion of the amount awarded by the verdict, was a matter within the discretion of the court, in support of which two American state cases and 484 OCTOBER TERM, 1934. Opinion of the Court. 293 U. S. the Blunt case are cited. The common law in respect of the matter is not referred to. The state cases cited are equally silent in respect of the common law rule. The nearest approach to a reasoned opinion on the subject in any of the decisions is found in Arkansas Cattle Co. v. Mann, supra. In. that opinion, the court states the contention to be that to make the decision of the motion for new trial depend upon a remission of part of the verdict is in effect a reexamination by the court in a mode not known at the common law of facts tried by the jury, and therefore a violation of the Seventh Amendment. The court decided against this contention upon the authority of the Blunt case, the Herbert case, and certain American state decisions. English cases were referred to only upon the point that the court had authority to set aside the verdict and grant a new trial where the damages are palpably or outrageously excessive. No attempt was made to seek the common law rule, in respect of the precise contention which was made, by an examination of the English decisions or of the English practice prior to the adoption of the Constitution. In the last analysis, the sole support for the decisions of this court and that of Mr. Justice Story, so far as they are pertinent to cases like that now in hand, must rest upon the practice of some of the English judges—a practice which has been condemned as opposed to the principles of the common law by every reasoned English decision, both before and after the adoption of the Federal Constitution, which we have been able to find. ■ In the light reflected by the foregoing review of the English decisions and commentators, it, therefore, may be that if the question of remittitur were now before us for the first time, it would be decided otherwise. But, first announced by Mr. Justice Story in 1822, the doctrine has been accepted as the law for more than a hundred years and uniformly applied in the federal courts 474 DIMICK v. SCHIEDT. Opinion of the Court. 485 during that time. And, as it finds some support in the practice of the English courts prior to the adoption of the Constitution, we may assume that in a case involving a remittitur, which this case does not, the doctrine would not be reconsidered or disturbed at this late day. Nevertheless, this court in a very special sense is charged with the duty of construing and upholding the Constitution ; and in the discharge of that important duty, it ever must be alert to see that a doubtful precedent be not extended by mere analogy to a different case if the result will be to weaken or subvert what it conceives to be a principle of the fundamental law of the land. Compare Judson v. Gray, 11 N. Y. 408, 412. That rule applies with peculiar force to the present case, since, accepting Arkansas Cattle Co. v. Mann, supra, and like cases, as settling the precise question there involved, they do not conclude the question here presented. That is to say, the power to conditionally increase the verdict of a jury does not follow as a necessary corollary from the power to conditionally decrease it. As the court below correctly pointed out, in the case of a conditional remittitur, “ a jury has already awarded a sum in excess of that fixed by the court as the basis for the remittitur, which at least finds some support in the early English practice; while in the second case, no jury has ever passed on the increased amount, and the practice has no precedent according to the rules of the common law.” The right of trial by jury is of ancient origin, characterized by Blackstone as “ the glory of the English law ” and “ the most transcendent privilege which any subject can enjoy ” (Bk. 3, p. 379) ; and, as Justice Story said (2 Story on the Constitution, § 1779), “ . . . the Constitution would have been justly obnoxious to the most conclusive objection if it had not recognized and confirmed it in the most solemn terms.” With, perhaps, some exceptions, trial by jury has always been, and still is, generally re- 486 OCTOBER TERM, 1934. . Opinion of the Court. 293 U. 8. garded as the normal and preferable mode of disposing of issues of fact in civil cases at law as well as in criminal cases. Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care. Compare Patton v. United States, 281 U. S. 276, 312. The controlling distinction between the power of the court and that of the jury is that the former is the power to determine the law and the latter to determine the facts. In dealing with questions like the one now under consideration, that distinction must be borne steadily in mind. Where the verdict returned by a jury is palpably and grossly inadequate or excessive, it should not be permitted to stand; but, in that event, both parties remain entitled, as they were entitled in the first instance, to have a jury properly determine the question of liability and the extent of the injury by an assessment of damages. Both are questions of fact. Where the verdict is excessive, the practice of substituting a remission of the excess for a new trial is not without plausible support in the view that what remains is included in the verdict along with the unlawful excess—in that sense that it has been found by the jury—and that the remittitur has the effect of merely lopping off an excrescence. But where the verdict is too small, an increase by the court is a bald addition of something which in no sense can be said to be included in the verdict. When, therefore, the trial court here found that the damages awarded by the jury were so inadequate as to entitle plaintff to a new trial, how can it be held, with any semblance of reason, that that court, with the consent of the defendant only, may, by assessing an additional amount of damages, bring the constitutional right of the plaintiff to a jury trial to an end in respect of a matter of fact which no jury has ever passed upon either explicitly 474 DIMICK v. SCHIEDT. Opinion of the Court. 487 or by implication? To so hold is obviously to compel the plaintiff to forego his constitutional right to the verdict of a jury and accept “ an assessment partly made by a jury which has acted improperly, and partly by a tribunal which has no power to assess.” It is said that the common law is susceptible of growth and adaptation to new circumstances and situations, and that the courts have power to declare and effectuate what is the present rule in respect of a given subject without regard to the old rule; and some attempt is made to apply that principle here. The common law is not immutable, but flexible, and upon its own principles adapts itself to varying conditions. Funk v. United States, 290 U. S. 371. But here, we are dealing with a constitutional provision which has in effect adopted the rules of the common law, in respect of trial by jury, as these rules existed in 1791. To effectuate any change in these rules is not to deal with the common law, qua common law, but to alter the Constitution. The distinction is fundamental, and has been clearly pointed out by Judge Cooley in 1 Const. Limitations, Sth ed., 124. It is worthy of note that while for more than a century the federal courts have followed the approved practice of conditioning the allowance of a new trial on the consent of plaintiff to remit excessive damages, no federal court, so far as we can discover, has ever undertaken similarly to increase the damages, although there are numerous cases where motions for new trial have been made and granted on the ground that the verdict was inadequate. See, for example, Carter v. Wells, Fargo & Co., 64 Fed. 1005; Usher n. Scranton Ry. Co., 132 Fed. 405; Glenwood Irr. Co. v. Vallery, 248 Fed. 483; United Press Assns. v. National Newspapers Assn., 254 Fed. 284 • Stetson v. Stindt, 279 Fed. 209. This, it is true, is but negative evidence; but it is negative evidence of more than ordinary value. For, when we consider that during 488 OCTOBER TERM, 1934. Stone, J., dissenting. 293 U. S. the great length of time mentioned, the federal courts were constantly applying the rule in respect of the remission of excessive damages, the circumstance that the practice here in question in respect of inadequate damages was never followed or, apparently, its approval even suggested, seems highly significant as indicating a lack of judicial belief in the existence of the power. State decisions in respect of the matter have been brought to our attention and have received consideration. They embody rulings both ways. A review of them we think would serve no useful purpose. Judgment affirmed. Mr. Justice Stone, dissenting. I think the judgment should be reversed. What the trial court has done is to deny a motion for a new trial, for what seemed to it a good reason: that the defendant had given his binding consent to an increased recovery, which the court thought to be adequate, and thus to remove any substantial ground for awarding a new trial. In denying the motion the trial judge relied on two rules of the common law which have received complete acceptance for centuries. One is that the court has power to act upon a motion to set aside the verdict of a jury because inadequate or excessive, and in its discretion to grant or deny a new trial. Railroad Co. v. Fraloff, 100 U. S. 24, 31; Wilson v. Everett, 139 U. S. 616, 621; Lincoln v. Power, 151 U. S. 436, 438. The other, which is implicit in the first, is that it has power to determine, as a matter of law, the upper and lower limits within which recovery by a plaintiff will be permitted, and the authority to set aside a verdict which is not within those limits. Arkansas Valley Land & Cattle Co. v. Mann, 130 U. S. 69, 74; cf. Southern Ry. Co. v. Bennett, 233 U. S. 80, 87. 474 DIMICK v. SCHIEDT. Stone, J., dissenting. 489 As a corollary to these rules is the further one of the common law, long accepted in the federal courts, that the exercise of judicial discretion in denying a motion for a new trial, on the ground that the verdict is too small or too large, is not subject to review on writ of error or appeal. Railroad Co. v. Fraloff, supra, 31; Wabash Ry. Co. n. McDaniels, 107 U. S. 454, 456; Fitzgerald & Mallory Construction Co. v. Fitzgerald, 137 U. S. 98, 113; Wilson v. Everett, supra, 621; Lincoln v. Power, supra, 438; Luckenbach S. S. Co. v. United States, 272 U. S. 533, 540. This is but a special application of the more general rule that an appellate court will not reexamine the facts which induced the trial court to grant or deny a new trial.1 Barr v. Gratz, 4 Wheat. 213, 220; The Abbots]ord, 98 U. S. 440, 445; Railroad Co. v. Fraloff, supra, 31; Terre Haute & Indiana Ry. Co. v. Struble, 109 U. S. 381, 384, 385; Fishbum v. Chicago, M. & St. P. Ry. Co., 137 U. S. 60, 61; Ayers v. Watson, 137 U. S. 584, 597; Wilson v. Everett, supra, 621; Luckenbach S. S. Co. v. United States, supra, 540. If the effect of what is now decided is to liberalize the traditional common law practice so that the denial of a motion for a new trial, made on the ground that the verdict is excessive or inadequate, is subject to some sort of appellate review, the change need not be regarded as unwelcome, even though no statute has authorized it. But the question remains whether, in exercising this power of review, the trial judge should be reversed. The decision of the Court is rested on the ground that the Constitution prohibits the trial judge from adopting xThe power of the English appellate courts to review such action has been enlarged by statute, and the motion itself must be made to the Court of Appeal. Supreme Court of Judicature Act, 1875, 38 & 39 Viet., c. 77, Order 58; Rules of the Supreme Court of Judicature, Order 39. See Fairmount Glass Works v. Cub Fork Coal Co., 287 U. S. 474, 482, note 9. 490 OCTOBER TERM, 1934. Stone, J., dissenting. 293 U. S. the practice. Accordingly, I address myself to the question of power without stopping to comment on the generally recognized advantages of the practice as a means of securing substantial justice and bringing the litigation to a more speedy and economical conclusion than would be possible by a new trial to a jury, or the extent to which that or analogous practice has been adopted and found useful in the courts of the several states. See Correction of Damage Verdicts by Remittitur and Additur, 44 Yale Law J. 318. The question is a narrow one: whether there is anything in the Seventh Amendment or in the rules of the common law, as it had developed before the adoption of the Amendment, which would require a federal appellate court to set aside the denial of the motion merely because the particular reasons which moved the trial judge to deny it are not shown to have similarly moved any English judge before 1791. The Seventh Amendment commands that “ in suits at common law,” the right to trial by jury shall be preserved and that a no fact tried by a jury shall be otherwise reexamined by any court of the United States, than according to the rules of the common law.” Such a provision of a great instrument of government, intended to endure for unnumbered generations, is concerned with substance and not with form. There is nothing in its history or language to suggest that the Amendment had any purpose but to preserve the essentials of the jury trial as it was known to the common law before the adoption of the Constitution. For that reason this Court has often refused to construe it as intended to perpetuate in changeless form the minutiae of trial practice as it existed in the English courts in 1791. From the beginning, its language has been regarded as but subservient to the single purpose of the Amendment, to preserve the essentials of the jury DIMICK v. SCHIEDT. 491 474 Stone, J., dissenting. trial in actions at law, serving to distinguish them from suits in equity and admiralty, see Parsons v. Bedford, 3 Pet. 433, 446, and to safeguard the jury’s function from any encroachment which the common law did not permit. Thus interpreted, the Seventh Amendment guarantees that suitors in actions at law shall have the benefits of trial of issues of fact by a jury, but it does not prescribe any particular procedure by which these benefits shall be obtained, or forbid any which does not curtail the function of the jury to decide questions of fact as it did before the adoption of the Amendment. It does not restrict the court’s control of the jury’s verdict, as it had previously been exercised, and it does not confine the trial judge, in determining what issues are for the jury and what for the court, to the particular forms of trial practice in vogue in 1791. Thus this Court has held that a federal court, without the consent of the parties, may constitutionally appoint auditors to hear testimony, examine books and accounts and frame and report upon issues of fact, as an aid to the jury in arriving at its verdict, Ex parte Peterson, 253 U. S. 300; it may require both a general and a special verdict and set aside the general verdict for the plaintiff and direct a verdict for the defendant on the basis of the facts specially found, Walker v. New Mexico & Southern Pacific R. Co., 165 U. S. 593; and it may accept so much of the verdict as declares that the plaintiff is entitled to recover, and set aside so much of it as fixes the amount of the damages, and order a new trial of that issue alone, Gasoline Products Co. v. Champlin Refining Co., 283 U. S. 494. Yet none of these procedures was known to the common law. In fact, the very practice, so firmly imbedded in federal procedure, of making a motion for a new trial directly to the trial judge, instead 492 OCTOBER TERM, 1934. Stone, J., dissenting. 293 U.S. of to the court en banc, was never adopted by the common law.2 But this Court has found in the Seventh Amendment no bar to the adoption by the federal courts of these novel methods of dealing with the verdict of a jury, for they left unimpaired the function of the jury, to decide issues of fact, which it had exercised before the adoption of the Amendment. Compare Nashville, C. & St. L. Ry. Co. v. Wallace, 288 U. S. 249, 264. If we apply that test to the present case it is evident that the jury’s function has not been curtailed. After the issues of fact had been submitted to the jury, and its verdict taken, the trial judge was authorized to entertain a motion to set aside the verdict and, as an incident, to determine the legal limits of a proper verdict. A denial of the motion out of hand, however inadequate the verdict, was not an encroachment upon the province of the jury as the common law defined it. It would seem not to be any the more so here because the exercise of the judge’s discretion was affected by his knowledge of the fact that a proper recovery had been assured to the plaintiff by the consent of the defendant. Thus the plaintiff has suffered no infringement of a right by the denial of his motion. The defendant has suffered none because he has con 2 In England, before the adoption of the Seventh Amendment, the motion was made not to the trial judge but to the court sitting en banc. Blackstone’s Commentaries, v. 3, p. 391; Tidd’s Practice, v. 2, pp. 819-821. By the Supreme Court of Judicature Act, 1875, 38 & 39 Viet., c. 77, Order 58, see Order 39 of Rules of Supreme Court of Judicature, the motion was required to be made to the Court of Appeal, from whose decision an appeal might be taken to the House of Lords. The original organization of the federal courts was capable of use in such a fashion that the motion could be made to the circuit court, something in the nature of a court en banc, but no such practice developed. Judiciary Act of 1789, c. 20, §§ 4, 17, 1 Stat. 73, 74, 83; Hinton, Power of Federal Appellate Court to Review Ruling on Motion for New Trial, 1 Univ, of Chicago L. Rev. Ill, 113. DIMICK v. SCHIEDT. 493 474 Stone, J., dissenting. sented to the increased recovery, of which he does not complain. It is upon these grounds, as well as the further one that the denial of a new trial may not be reviewed upon appeal, see Arkansas Valley Land & Cattle Co. v. Mann, supra, 75, that this Court has upheld the practice of the remittitur. Recognized more than a century ago by Mr. Justice Story in Blunt v. Little, 3 Mason 102, 107, it has been consistently used in the federal trial courts, and as consistently upheld in this Court. Northern Pacific R. Co. v. Herbert, 116 U. S. 642, 646, 647; Arkansas Valley Land & Cattle Co. v. Mann, supra, 72-76; Kennon v. Gilmer, 131 U. S. 22, 29, 30; Clark v. Sidway, 142 U. S. 682, 690; Lewis v. Wilson, 151 U. S. 551, 555; Koenigsberger n. Richmond Silver Mining Co., 158 U. S. 41, 52; German Alliance Ins. Co. v. Hale, 219 U. S. 307, 312; cf. Gila Valley, G. & N. Ry. Co. v. Hall, 232 U. S. 94, 104, 105; Tevis v. Ryan, 233 U. S. 273, 290; Union Pacific R. Co. v. Hadley, 246 U. S. 330, 334. In Arkansas Valley Land & Cattle Co. v. Mann, supra, at page 74, in considering at length the constitutional question, this Court said: “ The practice which this court approved in Northern Pacific Railroad v. Herbert is sustained by sound reason, and does not, in any just sense, impair the constitutional right of trial by jury. It cannot be disputed that the court is within the limits of its authority when it sets aside the verdict of the jury and grants a new trial where the damages are palpably or outrageously excessive. Ducker v. Wood, 1 T. R. 277; Hewlett v. Crutchley, 5 Taunt. 277, 281; authorities cited in Sedgwick on Damages, 6th ed. 762, note 2. But, in considering whether a new trial should be granted upon that ground, the court necessarily determines, in its own mind, whether a verdict for a given amount would be liable to the objection that it was excessive. The authority of the court to determine whether the damages are excessive implies authority to 494 OCTOBER TERM, 1934. Stone, J., dissenting. 293 U. S. determine when they are not of that character. To indicate before the passing upon the motion for a new trial, its opinion that the damages are excessive, and to require a plaintiff to submit to a new trial, unless, by remitting a part of the verdict he removes that objection, certainly does not deprive the defendant of any right, or give him any cause for complaint.” See also Kennon v. Gilmer, supra, 29; Clark v. Sidway, supra, 690; Gila Valley, G. 8. 0. Pickens for respondent. Reported below: 71 F. (2d) 618. No. 339. Jurney v. MacCracken. October 8, 1934. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia granted. Messrs. Leslie C. Garnett and Harry L. Underwood for petitioner. 544 OCTOBER TERM, 1934. Decisions Granting Certiorari. 293 U. S. Messrs. Frank J. Hogan and Edmund L. Jones for respondent. Reported below: 63 App. D. C. 342; 72 F. (2d) 560. No. 54. Mitchell, Insurance Commissioner of California, v. Maurer et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted limited to the question of the validity of the appointment of ancillary receivers upon the petition of the primary receivers, and attention is directed to McCandless v. Furlaud, No. 11 on the present docket (ante, p. 67). Mr. Frank L. Guerena for petitioner. Messrs. Edward D. Lyman and P. B. Plumb for respondents. Reported below: 69 F. (2d) 233. No. 107. Old Mission Portland Cement Co. v. Hel-vering, Commissioner of Internal Revenue. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted limited to the question of the right of the taxpayer to deductions (a) on account of amortization of bond discount and (b) on account of contributions to the San Francisco Community Chest. Mr. George E. H. Goodner for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, Miss Helen R. Carloss, and Messrs. Erwin N. Griswold and James W. Morris for respondent. Reported below: 69 F^ (2d) 676. No. 128. George v. Victor Talking Machine Co. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted, limited to the question of the jurisdiction of the Circuit Court of Appeals. Messrs. Minitree Jones Fulton and Robert L. Nose for petitioner. Messrs. Robert P. Myers, OCTOBER TERM, 1934. 545 293 U. S. Decisions Granting Certiorari. Isaac D. Levy, I. E. Lambert, Lawrence B. Morris, and Louis Levinson for respondent. Reported below: 69 F. (2d) 871. No. 146. Clifton Manufacturing Co. v. United States. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit granted. Messrs. Joseph B. Brennan and W. A. Sutherland for petitioner. Solicitor General Biggs for the United States. Reported below: 70 F. (2d) 102. No. 173. Irving Trust Co., Trustee in Bankruptcy, v. Bowditch et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Messrs. Irving L. Ernst and Lester D. Melzer for petitioner. Messrs. Burton E. Eames and Burt Franklin for respondents. Reported below: 71 F. (2d) 1015. No. 215. Schumacher, Sheriff, v. Beeler, Trustee. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit granted, limited to the question of the jurisdiction of the District Court under § 23 (b) of the Bankruptcy Act. Messrs. John W. Peck, Frank H. Shaffer, Jr., and Coleman Avery for petitioner. Messrs. Province M. Pogue and Henry Burton Street for respondent. Reported below: 71 F. (2d) 831. No. 234. United States ex rel. Chicago Great Western R. Co. et al. v. Interstate Commerce Commission et al. October 8, 1934. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia granted. Mr. Justice Brandeis took no part in the consideration or decision of this applica-89995°—35------35 546 OCTOBER TERM, 1934. Decisions Granting Certiorari. 293 U. S. tion. Messrs. Frank H. Towner, Ralph M. Shaw, Frank H. Moore, A. F. Smith, and Samuel W. Moore for petitioners. Messrs. Daniel W. Knowlton, E. M. Reidy, Samuel W. Sawyer, J. C. Gibson, Charles H. Woods, Bruce Scott, W. F. Dickinson, F. W. Clements, E. A. Boyd, Walter McFarland, J. M. Souby, H. H. Larrimore, and W. F. Peter for respondents. Reported below: 63 App. D. C. 215; 71 F. (2d) 336. No. 270. Norman v. Baltimore & Ohio R. Co. October 8,1934. Petition for writ of certiorari to the Supreme Court of New York granted. Messrs. Emanuel Redfield and Dalton Dwyer for petitioner. Mr. Frederick H. Wood for respondent. Reported below: 265 N. Y. 37; 191 N. E. 726. No. 340. Old Company’s Lehigh, Inc. v. Meeker, Receiver, et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Messrs. Joseph G. M. Browne and Israel H. Mandel for petitioner. Mr. Humphrey J. Lynch for respondents. Reported below: 71 F. (2d) 280. No. 361. Clark, Commissioner of Insurance of Iowa, et al. v. Williard et al. October 15, 1934. Petition for writ of certiorari to the Supreme Court of Montana granted. Messrs. Reuel B. Cook, Edmond M. Cook, and M. S. Gunn for petitioners. Messrs. Louis P. Donovan and H. Leonard DeKalb for respondents. Reported below: 97 Mont. 503; 34 P. (2d) 982. No. 383. Swinson v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co. October 22, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the OCTOBER TERM, 1934. 547 293 U. S. Decisions Granting Certiorari. Eighth Circuit granted. Messrs. Tom Davis and Ernest A. Michel for petitioner. Messrs. Warren Newcome, Samuel H. Cady, and William T. Fancy for respondent. Reported below: 72 F. (2d) 649. No. 431. Penn General Casualty Co. v. Pennsylvania ex rel. Schnader, Attorney General. October 22, 1934. Petition for writ of certiorari to the Supreme Court of Pennsylvania granted. Messrs. Thomas F. Mount and Joseph W. Henderson for petitioner. Messrs. William A. Schnader and Harold D. Saylor for respondent. Reported below: 316 Pa. 1; 173 Atl. 637. No. 424. Hildegard Schoenamsgruber v. Hamburg American Line; and No. 425. Gustav Schoenamsgruber v. Same. October 22, 1934. Petition for writs of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Mr. Harry H. Semmes for petitioners. Messrs. Christopher B- Garnett, S. Hasket Derby, and J. Hampton Hoge for respondent. Reported below: 70 F. (2d) 234. No. 374. Adams, Receiver v. Champion, Trustee. October 22, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Mr. John F. Anderson for petitioner. Mr. Harry C. Heyl for respondent. Reported below: 70 F. (2d) 956. No. 394. Pennsylvania v. Williams et al. October 22, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Messrs. Wm. A. Schnader, Harold D. Saylor, and Leo Weinrott 548 OCTOBER TERM, 1934 Decisions Granting Certiorari 293 U. S. for petitioner. Messrs. Gordon A. Block, Grover C. Ladner, and Joseph H. Sundheim for respondents. Reported below: 72 F. (2d) 509. No. 254. Paramount Publix Corp. v. American TriErgon Corp. See ante, p. 528. No. 255. Altoona Publix Theatres, Inc. v. American Tri-Ergon Corp, et al. ; and No. 256. Wilmer & Vincent Corp, et al. v. Same. See ante, p. 528. No. 395. Gordon, Secretary of Banking of Pennsylvania, v. Ominsky et al. November 5, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Messrs. Wm. A. Schnader, Harold D. Saylor, and Leo Weinrott for petitioner. Messrs. G. C. Ladner and Charles Potes for respondents. Reported below: 72 F. (2d) 517. No. 413. Gulf, Mobile & Northern R. Co. v. Helvering, Commissioner of Internal Revenue. November 5, 1934. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia granted limited to the question of the right of the taxpayer to deductions on account of amortization of bond discount. Mr. George E. H. Goodner for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. James W. Morris and Morton K. Rothschild for respondent. Reported below: 63 App. D. C. 244; 71 F. (2d) 953. Nos. 471 and 472. United States et al. v. Bankers Trust Co. et al. November 5, 1934. Petition for writs of certiorari to the Circuit Court of Appeals for the OCTOBER TERM, 1934. 549 293 IL S. Decisions Granting Certiorari. Eighth Circuit granted. Solicitor General Biggs, Assistant Solicitor General MacLean, and Messrs. Stanley Reed and John T. Fowler, Jr., for the United States et al. Messrs. James H. McIntosh, Edward J. White, and Clifton P. Williamson for respondents. No. 434. Seabury, Receiver, v. Green, Administratrix, et al. November 5, 1934. Petition for writ of certiorari to the Court of Common Pleas for Sumter County, South Carolina, granted. Mr. R. 0. Purdy for petitioner. Mr. Samuel Want for respondents. Reported below: 173 S. C. 235; 175 S. E. 639. No. 441. United States Mortgage Co. et al. v. Matthews et al. November 5, 1934. Petition for writ of certiorari to the Court of Appeals of Maryland granted. Mr. William L. Marbury, Jr., for petitioners. Mr. Frederick H. Hennighausen for respondents. Reported below: 167 Md. 383; 173 Atl. 903. No. 386. Domenech, Treasurer of Puerto Rico, v. National City Bank of New York. November 5, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit granted. Messrs. William Cattron Rigby and Nathan R. Margold for petitioner. Mr. Earle T. Fiddler for respondent. Reported below: 71 F. (2d) 13. No. 452. Adamos v. New York Life Insurance Co. November 12, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Messrs. Louis Caplan and Charles H. Sachs for petitioner. Messrs. William H. Eckert and Louis H. Cooke for respondent. Reported below: 71 F. (2d) 997. 550 OCTOBER TERM, 1934. Decisions Granting Certiorari. 293 U. S. No. 496. Lawyers County Trust Co. v. Reichert et al. December 3, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Mr. Saul S. Myers for petitioner. Messrs. Selig C. Brez and Meyer Marlow for respondents. Reported below: 73 F. (2d) 56. No. 478. Fox Film Corp. v. Muller. December 3, 1934. Petition for writ of certiorari to the Supreme Court of Minnesota granted. Messrs. Percy Heiliger and James D. Shearer for petitioner. Mr. Abram F. Myers for respondent. Reported below: 192 Minn. 212; 255 N. W. 845. Nos. 479 and 480. Continental Illinois National Bank & Trust Co. v. Chicago, Rock Island & Pacific Ry. Co. et al. ; Nos. 481 and 482. Chase National Bank of New York v. Same; Nos. 483 and 484. Mississippi Valley Trust Co. v. Same ; Nos. 485 and 486. Harris Trust & Savings Bank v. Same; Nos. 487 and 488. New York Trust Co. v. Same; and Nos. 489 and 490. Reconstruction Finance Corp. v. Same. December 3, 1934. Petitions for writs of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Messrs. Isaac H. Mayer, Carl Meyer, David F. Rosenthal, and Herbert A. Friedlich for petitioner in Nos. 479 and 480. Messrs. Henry Root Stern, Bertram F. Shipman, and Paul D. Miller for petitioner in Nos. 481 and 482. Messrs. T. M. Pierce and S. Mayner Wallace for petitioner in Nos. 483 and 484. Mr. Hal C. Bangs for petitioner in Nos. 485 and 486. Messrs. Ed- OCTOBER TERM, 1934. 551 293 U. S. Decisions Granting Certiorari. win W. Sims, Franklin J. Standky, and James P. Carey, Jr., for petitioner in Nos. 487 and 488. Solicitor General Biggs and Mr. Stanley Reed for petitioner in Nos. 489 and 490. Messrs. George W. Wickersham, Elihu Root, Jr., and Edward C. Bailly for respondents. Reported below: 72 F. (2d) 443. No. 499. Great Northern Railway Co. v. Sullivan. December 3, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit granted. Messrs. R. J. Hagman and J. P. Plunkett for petitioner. Messrs. Ormie C. Lance and Stanley B. Houck for respondent. Reported below: 72 F. (2d) 587. No. 342. Miller v. United States. December 3,1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit granted. Mr. Wallace Miller for petitioner. Solicitor General Biggs and Messrs. Will G. Beardslee, Randolph C. Shaw, and W. Marvin Smith for the United States. Reported below: 71 F. (2d) 361. No. 519. Douglas et al. v. Cunningham et al. December 3, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit granted. Mr. George P. Dike for petitioners. Mr. Edmund A. Whitman for respondents. Reported below: 72 F. (2d) 536. No. 521. The Ansaldo San Giorgio I v. Rheinstrom Brothers Co. December 3, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Mr. Homer L. Loomis for petitioner. Messrs. D. Roger Englar, Henry N. Longley and F. Herbert Prem for respondent. Reported below: 73 F. (2d) 40. 552 OCTOBER TERM, 1934. Decisions Granting Certiorari. 293 U. S. No. 522. Manufacturers’ Finance Co. v. McKey, Trustee. December 3, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Messrs. Samuel A. Dew and Edward I. Rothbart for petitioner. Mr. Thomas L. Marshall for respondent. Reported below: 72 F (2d) 471. No. 524. Aktieselskabet Cuzco v. The Sucarseco. December 3, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Mr. William H. McGrann for petitioner. Messrs. D. Roger Englar, Leonard J. Matteson, and Forrest E. Single for respondent. Reported below: 72 F. (2d) 690. No. 566. Railroad Retirement Board et al. v. Alton Railroad Co. et al. December 17, 1934. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia granted. Solicitor General Biggs for petitioners. Messrs. Sydney R. Prince, R. V. Fletcher, Jacob Aronson, Edward S. Jouett, Dennis F. Lyons, Emmett E. McInnis, and Sidney S. Aiderman for respondents. No. 534. Norris v. Alabama. January 7,1935. Petition for writ of certiorari to the Supreme Court of Alabama granted. Messrs. Walter H. Pollak and Osmond K. Fraenkel for petitioner. Messrs. Thomas E. Knight, Jr., and Thomas Seay Lawson for respondent. Reported below: 229 Ala. 226; 156 So. 556. No. 544. Berger v. United States. January 7, 1935. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Mr. Nathan D. OCTOBER TERM, 1934. 553 293 U. S. Decisions Granting Certiorari. Perlman for petitioner. Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith for the United States. Reported below: 73 F. (2d) 278. No. 549. Gordon, Secretary of Banking, et al. v. Washington et al. January 7, 1935. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Messrs. William A. Schnader and Harold D. Saylor for petitioners. Mr. David Bortin for respondents. Reported below: 73 F. (2d) 577. No. 550. Gordon, Secretary of Banking, et al. v. O’Brien et al. January 7, 1935. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Messrs. William A. Schnader and Harold D. Saylor for petitioners. Mr. David Bortin for respondents. Reported below: 73 F. (2d) 577. No. 557. Vulcan Manufacturing Co. v. Maytag Co. January 7, 1935. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit granted. Messrs. I. J. Ringolsky and Armwell L. Cooper for petitioner. Messrs. Wallace R. Lane and Nelson E. Johnson for respondent. Reported below: 73 F. (2d) 136. No. 537. Helvering, Commissioner of Internal Revenue, v. Inter-Mountain Life Insurance Co. January 7,1935. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit granted. Solicitor General Biggs for petitioner. Messrs. Stephen W. Downey and A. R. Serven for respondent. Reported below: 71 F. (2d) 962. 554 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. No. 546. Roberts, Receiver, et al. v. New York City et al. January 7, 1935. Petition for writ of certiorari to the Supreme Court of New York granted. The Chief Justice took no part in the consideration or decision of this application. Messrs. Carl M. Owen, Harold C. McCollom, George Welwood Murray, Charles E. Hughes, Jr., Martin A. Schenck, and Charles Franklin for petitioners. Messrs. Paxton Blair, Richard M. Page, Wm. H. Page, Joseph F. Mulqueen, Jr., Elwood Thomas, and Albert S. Wright for respondents. Mr. Gregory Hankin also entered an appearance for respondents. No. 554. Patterson v. Alabama. January 7, 1935. Petition for writ of certiorari to the Supreme Court of Alabama granted. Messrs. Walter H. Pollak and Osmond K. Fraenkel for petitioner. Messrs. Thomas E. Knight, Jr., and Thomas Seay Lawson for respondent. Reported below: 229 Ala. 270; 156 So. 567. DECISIONS DENYING CERTIORARI, FROM OCTOBER 1, 1934, TO AND INCLUDING JANUARY 7, 1935. No. 171. Green v. Crowell, Deputy Commissioner, et al. October 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. Rebecca Green, pro se. Messrs. George H. Ter-riberry and Walter Carroll for respondents. Reported below: 69 F. (2d) 762. No. 231. McGeorge v. Charles Nelson Co. October 8, 1934. Petition for writ of certiorari to the District Court of Appeal, First Appellate District, of California, and motion for leave to proceed further in forma pau- OCTOBER TERM, 1934. 555 293 U. S. Decisions Denying Certiorari. peris, denied. Mr. H. W. Hutton for petitioner. No appearance for respondent. Reported below: 136 Cal. App. 638; 29 P. (2d) 426. No. 237. Rasmussen v. Hamilton, Receiver, et al. October 8, 1934. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia, and motion for leave to proceed further in forma pauperis, denied. Mr. Jesse C. Duke for petitioner. No appearance for respondents. Reported below: 63 App. D. C. 202; 71 F. (2d) 212. No. 243. Puckett v. United States. October 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. John J. McCreary for petitioner. No appearance for the United States. Reported below: 70 F. (2d) 895. No. 263. Lesser v. New York. October 8, 1934. Petition for writ of certiorari to the Supreme Court of New York, and motion for leave to proceed further in forma pauperis, denied. Mr. Samuel Lesser, pro se. No appearance for respondent. No. 284. Hunter v. Zerbst, Warden. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit, and motion for leave to proceed further in forma pauperis, denied. Mr. Frank Hunter, pro se. No appearance for respondent. Reported below: 71 F. (2d) 1008. No. 325. Andreas v. Clark, U. S. Marshal. October 8, 1934. Petition for writ of certiorari to the Circuit 556 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. Court of Appeals for the Ninth Circuit, and motion for leave to proceed further in forma pauperis, denied. Mr. James E. Fenton for petitioner. No appearance for respondent. Reported below: 71 F. (2d) 908. No. 375. Fowler v. American Mail Line, Ltd., et al. October 8, 1934. Petition for writ of ceritorari to the Circuit Court of Appeals for the Ninth Circuit, and motion for leave to proceed further in forma pauperis, denied. Mr. H. W. Hutton for petitioner. No appearance for respondents. Reported below: 69 F. (2d) 905. No. 384. Wohlfeld v. New York. October 8, 1934. Petition for writ of certiorari to the Supreme Court of New York, and motion for leave to proceed further in forma pauperis, denied. Mr. Robert Wohlfeld, pro se. No appearance for respondent. Reported below: 241 App. Div. 856; 271 N. Y. S. 963. No. 389. Whitfield v. North Carolina. October 8, 1934. Petition for writ of certiorari to the Supreme Court of North Carolina, and motion for leave to proceed further in forma pauperis, denied. Mr. Frank P. Hobgood for petitioner. No appearance for respondent. Reported below: 206 N. C. 696; 175 S. E. 93. No. 303. Gass v. Wetmore et al. October 8, 1934. Petition for writ of certiorari to the Supreme Court of New York denied. Mr. Justice Stone took no part in the consideration or decision of this application. Mr. John J. Curtin for petitioner. Mr. R. Randolph Hicks for respondents. Reported below: 264 N. Y. 663; 191 N. E. 615. OCTOBER TERM, 1934. 557 293 U. S. Decisions Denying Certiorari. No. 315. Royal Insurance Co., Ltd., et al. v. Eastham. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Justice Roberts took no part in the consideration or decision of this application. Messrs. Louis M. Denit and Leonard J. Ganse for petitioners. Mr. Niel P. Sterne for respondent. Reported below: 71 F. (2d) 385. No. 31. Bekins et al. v. Pacific Savings & Loan Assn. October 8, 1934. Petition for writ of certiorari to the Supreme Court of Oregon denied. Mr. Arthur I. Moulton for petitioners. Mr. Erskine Wood for respondent. Reported below: 146 Ore. 385; 29 P. (2d) 816. No. 33. Chesapeake & Ohio Ry. Co. v. Mears, Administratrix. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. David H. Leake and Wm. Leigh Williams for petitioner. Mr. James Mann for respondent. Reported below: 70 F. (2d) 490. See also 64 F. (2d) 291. __________ No. 34. Continental National Bank et al. v. National City Bank of New York. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Charles W. Collins and William C. Day for petitioners. Mr. E. E. Bacon for respondent. Reported below: 69 F. (2d) 312. No. 40. McLaughlin & Freeman v. United States. October 8, 1934. Petition for writ of certiorari to the United States Court of Customs and Patent Appeals denied. Messrs. Malcolm Donald and Joseph F. Lockett for 558 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293U.S. petitioner. Solicitor General Biggs, and Assistant Attorney General Lawrence for the United States. Reported below: 21 C. C. P. A. (Cust.) 446; T. D. 46,946. No. 41. Missouri Pacific R. Co. v. Creighton. October 8, 1934. Petition for writ of certiorari to the Kansas City Court of Appeals, of Missouri, denied. Messrs. Edward J. White, Thomas J. Cole, and D. C. Chastain for petitioner. Mr. Walter J. Gresham for respondent. Reported below: 229 Mo. App. —; 66 S. W. (2d) 980. Nos. 43 and 44. Wingert v. Smead et al., Trustees in Bankruptcy. October 8, 1934. Petition for writs of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Miller Wingert for petitioner. No appearance for respondents. Reported below: 69 F. (2d) 790. See also, 70 F. (2d) 351. No. 45. Jones v. Foster. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Henry Roberts for petitioner. Mr. George S. Shackelford, Jr., for respondent. Reported below: 70 F. (2d) 200. No. 46. American Textile Woolen Co. v. Commissioner of Internal Revenue. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. J. Robert Sherrod and Charles A. Noone for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. Charles W. Bunn, James W. Morris, and John H. McEvers for respondent. Reported below: 68 F. (2d) 820. OCTOBER TERM, 1934. 559 293 U. S. Decisions Denying Certiorari. No. 48. Masters et al. v. Duval County, Florida, et al. October 8, 1934. Petition for writ of certiorari to the Supreme Court of Florida denied. Mr. P. H. Odom for petitioners. Messrs. Perse L. Gaskins and Robert R. Milam for respondents. Reported below: 114 Fla. 205; 154 So. 172. No. 49. International Railway Co. v. Burdick et al. October 8, 1934. Petition for writ of certiorari to the Supreme Court of New York, Appellate Division, denied. Mr. Martin Lee Clark for petitioner. Messrs. Alan V. Parker, Henry Epstein, and Joseph H. McLaughlin for respondents. Reported below: 264 N. Y. 510; 191 N. E. 539. No. 50. Union Pacific R. Co. v. Helvering, Commissioner of Internal Revenue. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Henry W. Clark and Edward N. Abbey for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. James W. Morris and Morton K. Rothschild for respondent. Reported below: 69 F. (2d) 67. No. 52. Mayor and City Council of Baltimore v. Gibbs. October 8, 1934. Petition for writ of certiorari to the Court of Appeals of Maryland denied. Messrs. R. E. Lee Marshall, Paul F. Due, J. Francis Ireton, and Wm. Preston Lane for petitioner. Messrs. George Weems Williams and Wm. L. Marbury, Jr., for respondent. Reported below: 166 Md. 364; 171 Atl. 37. No. 53. Becker et al. v. Montgomery Ward & Co., Inc. October 8, 1934. Petition for writ of certiorari to the Supreme Court of Missouri denied. Mr. Gilbert 560 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. Lamb for petitioners. Mr. Frank Y. Gladney for respondent. Reported below: 334 Mo. 789; 69 S. W. (2d) 674. _________ No. 56. Hopkins v. Commissioner of Internal Revenue. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Herbert Pope and George A. Carpenter for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. James W. Morris and Andrew D. Sharpe for respondent. Reported below: 69 F. (2d) 11. No. 57. Wabash Railway Co. v. Hiatt, Administratrix. October 8, 1934. Petition for writ of certiorari to the Supreme Court of Missouri denied. Messrs. N. S. Brown and Homer Hall for petitioner. Mr. John S. Marsalek for respondent. Reported below: 334 Mo. 895; 69 S. W. (2d) 627. No. 58. Dixon v. Commissioner of Internal Revenue. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Ellsworth C. Alvord and Elwood G. Godman for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. Erwin N. Griswold and James W. Morris for respondent. Reported below: 69 F. (2d) 461. No. 59. Chicago & Northwestern Ry. Co. v. Wilcox Co. et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Samuel H. Cady, William T. Far- OCTOBER TERM, 1934. 561 293 U. S. Decisions Denying Certiorari. icy, and P. F. Gault for petitioner. Mr. Thomas B. Lantry for respondents. Reported below: 68 F. (2d) 883. No. 61. Trimble v. New York Life Insurance Co. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Howard B. Warren for petitioner. Mr. Louis H. Cooke for respondent. Reported below: 69 F. (2d) 849. No. 63. Burdick et al v. Cochran. October 8, 1934. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia denied. Messrs. Ira Robinson and Louis Titus for petitioners. Messrs. Harry Friedman and Howe P. Cochran for respondent. Reported below: 63 App. D. C. 150; 70 F. (2d) 754. No. 64. Smith v. Commissioner of Internal Revenue. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Paul Reilly for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Mr. James W. Morris for respondent. Reported below: 69 F. (2d) 911. No. 65. Austin et al. v. Coe, Commissioner of Patents. October 8, 1934. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia denied. Mr. Melville Church for petitioners. Solicitor General Biggs and Mr. T. A. Hostetler for respondent. Reported below: 63 App. D. C. 94; 69 F. (2d) 832. 89995°—35-36 562 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. No. 66. Atlantic Greyhound Lines, Inc., v. Metz. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. Henry I. Quinn and Austin F. Canfield for petitioner. Mr. James J. Lenihan for respondent. Reported below: 70 F. (2d) 166. No. 67. Wichita State Bank & Trust Co. v. Hel-vering, Commissioner of Internal Revenue. October 8, 1934. Petition for writ of certiorari to the Circuit • Court of Appeals for the Fifth Circuit denied. Mr. Harry C. Weeks for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Mr. James W. Morris for respondent. Reported below: 69 F. (2d) 595. No.) 71. Cuyuna Mining & Investment Co. v. Ickes, Secretary of the Interior. October 8, 1934. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia denied. Messrs. Manton M. Wyvell and Clyde L. Rogers for petitioner. Solicitor General Biggs and Assistant Attorney General Blair for respondent. Reported below: 63 App. D. C. 91; 69 F. (2d) 662. No. 73. Dakin, Receiver, v. Federal Reserve Bank of Boston et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Kenneth I. McKay and Maynard Ramsey for petitioner. Mr. Harvey L. McGlothlin for respondents. Reported below: 69 F. (2d) 319. No. 74. Spencer Kellogg & Sons, Inc. v. Buckeye Steamship Co. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth OCTOBER TERM, 1934. 563 293 U. S. Decisions Denying Certiorari. Circuit denied. Messrs. Sherwin A. Hill and Carl V. Essery for petitioner. Messrs. Frederick L. Leckie and Thomas H. Garry for respondent. Reported below: 70 F. (2d) 146. No. 75. Snypp v. Ohio. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. A. 8. Iddings for petitioner. Mr. Harry N. Routzohn for respondent. Reported below: 70 F. (2d) 535. No. 76. Dunklee v. Cunard Steamship Co., Ltd. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Harry D. ThirkiM for petitioner. Mr. George de Forest Lord for respondent. Reported below: 69 F. (2d) 1003. No. 79. Nusbaum, Trustee in Bankruptcy, v. New Liberty Loan & Savings Assn. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Charles C. Scott for petitioner. No appearance for respondent. Reported below: 70 F. (2d) 49. No. 80. Central Iron & Steel Co. v. United States. October 8, 1934. Petition for writ of certiorari to the Court of Claims denied. Mr. Ralph J. Baker for petitioner. Solicitor General Biggs and Assistant Attorney General Wideman for the United States. Reported below: 79 Ct. Cis. 56; 6 F. Supp. 115. No. 169. Cleveland Automobile Co. v. United States. October 8, 1934. Petition for writ of certiorari 564 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Ellsworth C. Alvord for petitioner. Solicitoi' General Biggs, Assistant Attorney General Wideman, and Messrs. James W. Morris and Lucius A. Buck for the United States. Reported below: 70 F. (2d) 365. No. 257. W. H. Bradford & Co., Inc. v. United States. October 8, 1934. Petition for writ of certiorari to the Court of Claims denied. Mr. Paul Armitage for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Mr. George H. Foster for the United States. Reported below: 79 Ct. Cis. 89; 6 F. Supp. 117. No. 81. United States v. Clarke, Executor. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Solicitor General Biggs for the United States. Mr. William B. Bodine for respondent. Reported below: 69 F. (2d) 748. No. 242. United States v. Union Trust Co., Executor. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Solicitor General Biggs for the United States. Mr. Daniel M. Beach for respondent. Reported below: 70 F. (2d) 629. No. 82. Donnelley et al., Coexecutors, v. Helvering, Commissioner of Internal Revenue. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Edward H. McDermott, Ellsworth C. Alvord, and Floyd F. Toomey for petitioners. Solicitor General Biggs, Assist- OCTOBER TERM, 1934. 565 293 U. S. Decisions Denying Certiorari. ant Attorney General Wideman, and Messrs. James W. Morris, J. P. Jackson, and H. Brian Holland for respondent. Reported below: 68 F. (2d) 722. No. 83. Great Lakes Transit Corp. v. Norris Grain Co. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Lawrence E. Coffey and David F. Rosenthal for petitioner. Mr. Forrest E. Single for respondent. Reported below: 70 F. (2d) 32. No. 84. Central Railroad Co. of New Jersey v. Gasser. October 8, 1934. Petition for writ of certiorari to the Superior Court of Pennsylvania denied. Mr. George W. Aubrey for petitioner. Mr. E. Burke Finnerty for respondent. Reported below: 112 Pa. Super. Ct. 420; 171 Atl. 97. No. 85. Schwartz, Trustee in Bankruptcy, v. Holz-man. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Meyer Kraushaar for petitioner. Mr. Louis R. Bick for respondent. Reported below: 69 F. (2d) 814. Nos. 86 and 87. The Farmers’ Loan & Trust Co., Trustee, et al. v. Bowers, Executor. October 8, 1934. Petition for writs of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. John W. Davis and Carl Taylor for petitioners. Solicitor General Biggs, Assistant to the Attorney General Stanley, Assistant Attorney General Wideman and Messrs. Sewall Key, Carlton Fox and Erwin N. Griswold for respondent. Reported below: 68 F. (2d) 916. 566 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293U.S. No. 89. United States v. Jones et al. October 8, 1934. Petition for writ of certiorari to the Court of Claims denied. Solicitor General Biggs and Assistant Attorney General Wideman for the United States. Mr. George E. H. Goodner for respondents. Reported below: 78 Ct. Cis. 549; 5 F. Supp. 146. No. 90. Reisenwebers, Inc. v. Irving Trust Co., Trustee in Bankruptcy. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Moses Cohen for petitioner. Mr. William D. Whitney for respondent. Reported below: 69 F. (2d) 513. No. 92. Mercantile-Commerce Bank & Trust Co., Trustee, *v. Drainage District No. 2 of Crittenden County, Arkansas, et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Guy A. Thompson and Samuel A. Mitchell for petitioner. Messrs. Walter G. Riddick and Charles T. Coleman for respondents. Reported below: 69 F. (2d) 138. No. 93. Barrymore et al. v. Kemp, Receiver, et al.; and No. 94. Same v. Weiler et al. October 8, 1934. Petition for writs of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Zack Lamar Cobb for petitioners. Messrs. H. W. O’Melveny and Walter K. Tuller for respondents. Reported below: 69 F. (2d) 335. No. 96. Morrissey v. United States. October 8, 1934. Petition for writ of certiorari to the Circuit Court OCTOBER TERM, 1934. 567 293 U. S. Decisions Denying Certiorari. of Appeals for the Ninth Circuit denied. Mr. Byron C. Hanna for petitioner. Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith for the United States. Reported below: 70 F. (2d) 729. See also, 67 F. (2d) 267. No. 97. Wingert et al. v. Smead et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Miller Wingert for petitioners. No appearance for respondents. Reported below: 70 F. (2d) 351. See also, 69 F. (2d) 790. No. 98. Anderson et al. v. Moore et al.; and No. 99. Graham et al. v. Same. October 8, 1934. Petition for writs of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. John Lichty for petitioners. Solicitor General Biggs, Assistant Attorney General Blair, and Messrs. Aubrey Lawrence and H. Brian Holland for respondents. Reported below: 68 F. (2d) 191. No. 101. Shanferoke Coal & Supply Corp. v. Westchester Service Corp. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. George C. Levin for petitioner. Mr. Ralph Royall for respondent. Reported below: 70 F. (2d) 297; 69 id. 1016. No. 104. Levy-Ward Grocer Co. v. Lamborn et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Dudley Morton Shively for petitioner. Messrs. Samuel D. Miller, S. B. Pettengill, and A. C. B. McNevin ior respondents. Reported below: 69 F. (2d) 723. 568 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. No. 105. Sargeant v. Grimes, October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Mr. Frederick E. Dickerson for petitioner. Mr. Max P. Zoll for respondent. Reported below: 70 F. (2d) 121. No. 106. McCutchan v. United States. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Clyde Taylor and D. Heywood Hardy for petitioner. Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith for the United States. Reported below: 70 F. (2d) 658. No. 108. Central Railroad Company of New Jersey v. State Tax Comm’n et al. October 8, 1934. Petition for writ of certiorari to the Court of Errors and Appeals of New Jersey denied. Messrs. Alex. H. Elder and Maximilian M. Stallman for petitioner. Mr. Duane E. Minard for respondents. Reported below: 112 N. J. L. 5; 169 Atl. 489. No. 109. Pacific Western Oil Co. v. McDuffie, Receiver, et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Thomas A. J. Dockweiler for petitioner. Messrs. Atlee Pomerene, Frank Harrison, Robert B. Murphey, Norman S. Sterry, H. W. OMelveny, and Alex. Macdonald for respondents. Reported below: 69 F. (2d) 208. . No. 111. Bandes v. Commissioner of Internal Revenue. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Allen G. Gartner for petitioner. Solid- OCTOBER TERM, 1934. 569 293 U. S. Decisions Denying Certiorari. tor General Biggs, Assistant Attorney General Wideman, Messrs. James W. Morris and H. Brian Holland, and Miss Helen R. Carloss for respondent. Reported below: 69 F. (2d) 812. No. 112. Johnson, Receiver, v. Merchants & Manufacturers Securities Co. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Frederick H. Wood for petitioner. Messrs. Samuel A. Dew and Michael J. Doherty for respondent. Reported below: 69 F. (2d) 940. Nos. 113 and 114. Dort, Administratrix v. Helvering, Commissioner of Internal Revenue. October 8, 1934. Petition for writs of certiorari to the United States Court of Appeals for the District of Columbia denied. Messrs. William P. Smith and John C. Evans for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, Miss Helen R. Carloss, and Messrs. James W. Morris and Erwin N. Griswold for respondent. Reported below: 63 App. D. C. 98; 69 F. (2d) 836. No. 116. Wallace et al. v. Seagraves. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. John Neethe, S. J. Brooks, and J. D. Williamson for petitioners. No appearance for respondent. Reported below: 69 F. (2d) 163.x No. 117. Maryland Casualty Co. v. Cook-O’Brien Construction Co. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. P. H. Marshall for petitioner. Mr. Floyd E. Jacobs for respondent. Reported below: 69 F. (2d) 462. 570 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. 8. No. 118. Aldrew Oil & Gas Co. v. Alexander, Collector of Internal Revenue ; and No. 119. Bergen Oil & Gas Co. v. Same. October 8, 1934. Petition for writs of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Mr. Charles H. Garnett for petitioners. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. James W. Morris and John G. Remey for respondent. Reported below: 70 F. (2d) 160. No. 121. Perron v. Aetna Life Insurance Co. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Isaac E. Ferguson and Edward Sonnenschein for petitioner. Mr. George T. Buckingham for respondent. Reported below: 69 F. (2d) 401. No. 122. Ultimo v. Palmer, District Director of Immigration, et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Harold 0. Mulks for petitioner. Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith for respondents. Reported below: 69 F. (2d) 1. __________ No. 123. Helvering, Commissioner of Internal Revenue, v. Brown, Executrix; and No. 124. Same v. Brown. October 8, 1934. Petition for writs of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Solicitor General Biggs for petitioner. Messrs. Herbert Pope and Benjamin M. Price for respondents. Reported below: 69 F. (2d) 602. No. 250. Hyman v. Helvering, Commissioner of Internal Revenue. October 8, 1934. Petition for writ of OCTOBER TERM, 1934. 571 293 U. S. Decisions Denying Certiorari. certiorari to the United States Court of Appeals for the District of Columbia denied. Messrs. R. Kemp Slaughter and Hugh C. Bickford for petitioner. Solicitor General Biggs for respondent. Reported below: 63 App. D. C. 221; 71 F. (2d) 342. No. 293. Helvering, Commissioner of Internal Revenue v. Henry B. Babson; No. 294. Same v. Gustavus Babson ; and No. 295. Same v. Fred K. Babson. October 8, 1934. Petition for writs of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Solicitor General Biggs for petitioner. Mr. George K. Bowden for respondents. Reported below: 70 F. (2d) 304. No. 126. Straus et al. v. Fiest, Trustee in Bankruptcy, et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Samuel C. Dulgerstein for petitioners. Mr. Oscar A. Lewis for respondents. Reported below: 68 F. (2d) 1000. No. 129. Grammer, Administratrix, v. Mid-Continent Petroleum Corp. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Messrs. Roscoe E. Harper and Gentry Lee for petitioner. Messrs. James C. Denton and Richard H. Wills for respondent. Reported below: 71 F. (2d) 38. No. 130. United States ex rel. Shoshone Irrigation District v. Ickes, Secretary of the Interior. October 8, 1934. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia denied. Messrs. Chester I. Long, Peter Q. Nyce, E. J. 572 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. Goppert, Roy St. Lewis, and Samuel W. McIntosh for petitioner. Solicitor General Biggs, Assistant Attorney General Blair, and Messrs. D.B. Hempstead and H. Brian Holland for respondent. Reported below: 63 App. D. C. 167; 70 F. (2d) 771. No. 269. Keystone Driller Co. v. Byers Machine Co. et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Clarence P. Byrnes and F. O. Richey for petitioner. Mr. Robert W. Wilson for respondents. Reported below: 71 F. (2d) 1000. No. 136. Layne v. Tribune Co. October 8, 1934. -Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia denied. Messrs. James A. O’Shea, John H. Burnett, and Alfred Goldstein for petitioner. Messrs. Howard Ellis and Louis G. Caldwell for respondent. Reported below: 63 App. D. C. 213; 71 F. (2d) 223. Nos. 137, 138, and 139. Colorado Tax Commission v. Colorado Central Power Co. October 8, 1934. Petition for writs of certiorari to the Supreme Court of Colorado denied. Messrs. Archibald A. Lee, Clarence W. Miles, and Seymour O’Brien for petitioner. Messrs. Paul P. Prosser, Charles Roach, and Wm. L. Boatright for respondent. Reported below: 94 Colo. 287, 292, 293; 29 P. (2d) 1030, 1031, 1032. No. 140. Allen v. Johnson et al. October 8, 1934. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia denied. Messrs. Alvin L. Newmyer and George C. Gertman for petitioner. Messrs. Walter C. Clepfyane, J. Wilmer Latimer, and Gil- OCTOBER TERM, 1934. 573 293 U. S. Decisions Denying Certiorari. bert L. Hall for respondents. Reported below: 63 App. D. C. 200; 70 F. (2d) 927. No. 141. Hollow et al. v. Shell Petroleum Corp, et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Mr. Karl Knox Gartner for petitioners. Messrs. Guy A. Thompson, Samuel A. Mitchell, Frank A. Thompson, and Truman Post Young for respondents. Reported below: 70 F. (2d) 811. No. 143. Woodhouse v. Moncure, Davis & Bud-weskey et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Raymond M. Hudson for petitioner. No appearance for respondents. Reported below: 70 F. (2d) 61. No. 144. I. F. Laucks, Inc. v. Chas. H. Lilly Co. et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. G. Wright Arnold for petitioner. Mr. Alfred Battle for respondents. Reported below: 68 F. (2d) 175. No. 145. I. F. Laucks, Inc. v. Chas. H. Lilly Co. et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. G. Wright Arnold for petitioner. Mr. Alfred Battle for respondents. Reported below: 68 F. (2d) 190. No. 147. United States ex rel. Karpay v. Uhl, Acting Commissioner of Immigration. October 8, 1934. Petition for writ of certiorari to the Circuit Court 574: OCTOBER TERM, 1934. Decisions Denying Certiorari. 293U.S. of Appeals for the Second Circuit denied. Mr. Christopher C. Cousins for petitioner. Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith for respondent. Reported below: 70 F. (2d) 792. Nos. 149 and 150. Fritzinger et al. v. Illinois. October 8, 1934. Petitions for writs of certiorari to the Supreme Court of Illinois denied. Mr. Claude U. Stone for petitioners. Mr. Montgomery S. Winning for respondent. No. 151. Shelton v. United States. October 8,1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Harold J. Bandy for petitioner. Solicitor General Biggs and Messrs. Amos W. W. Woodcock and W. Marvin Smith for the United States. Reported below: 69 F. (2d) 223. No. 152. Helvering, Commissioner of Internal Revenue, v. Pryor & Lockhart Development Co. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Solicitor General Biggs for petitioner. Mr. George M. Morris for respondent. Reported below: 70 F. (2d) 154. No. 153. Christie v. Cleveland Heights. October 8, 1934. Petition for writ of certiorari to the Supreme Court of Ohio denied. Mr. Miles E. Evans for petitioner. Mr. Edward J. Schweid for respondent. Reported below: 128 Oh. St. 297; 190 N. E. 770. No. 155. Illinois Central R. Co. v. Hardin. October 8,1934. Petition for writ of certiorari to the Supreme Court of Missouri denied. Messrs. William R. Gentry, OCTOBER TERM, 1934. 575 293 U. S. Decisions Denying Certiorari. M. F. Watts, Edward C. Craig, and Charles A. Helsell for petitioner. Mr. John S. Marsalek for respondent. Reported below: 334 Mo. 1169; 70 S. W. (2d) 1075. No. 156. Pennsylvania Slovak Roman and Greek Catholic Union v. American Surety Co. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Messrs. Seth W. Richardson, Peter P. Jurchak, and David Rosenthal for petitioner. Mr. M. J. Martin for respondent. Reported below: 71 F. (2d) 537. No. 157. Strongin, Trustee in Bankruptcy, v. International Acceptance Bank, Inc. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. John W. Davis and Neil P. Cullom for petitioner. Mr. Walter H. Pollack for respondent. Reported below: 70 F. (2d) 248. No. 159. Chesapeake & Delaware Steamboat Co. v. Tug Pennsylvania et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Leonard J. Matteson for petitioner. Mr. Horace L. Cheyney for respondents. No. 160. Beemsterboer v. Illinois ex rel. McDonough, County Treasurer. October 8, 1934. Petition for writ of certiorari to the Supreme Court of Illinois denied. Mr. Wm. J. Grace for petitioner. Mr. Philip H. Treacy for respondent. Reported below: 356 Ill. 432; 190 N. E. 920. No. 164. N. W. Pugh Co., Inc. v. Helvering, Commissioner of Internal Revenue. October 8, 1934. 576 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia denied. Mr. Frederick L. Pearce for petitioner. _ Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. James W. Morris and John MacC. Hudson for respondent. Reported below: 63 App. D. C. 172; 70 F. (2d) 776. No. 165. Milwaukee v. Activated Sludge, Inc. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Newton D. Baker, Arthur C. Denison, Wallace R. Lane, and Max Raskin for petitioner. Messrs. Lynn A. Williams and Clifford C. Bradbury for respondent. Reported below: 69 F. (2d) 577. No. 167. Nord v. United States. October 8, 1934. Petition for writ of certiorari to the Court of Claims denied. Messrs. George A. King, George R. Shields, and John W. Gaskins for petitioner. Solicitor General Biggs, Assistant Attorney General Sweeney, and Messrs. Paul A. Sweeney and H. Brian Holland for the United States. Reported below: 78 Ct. Cis. 795. No. 168. Lowery v. Connecticut Fire Insurance Co. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Horace L. Cheyney for petitioner. Mr. Leonard J. Matteson for respondent. Reported below: 70 F. (2d) 324. No. 172. Coe Manufacturing Co. v. New York. October 8, 1934. Petition for writ of certiorari to the Court of Errors and Appeals of New Jersey denied. Mr. OCTOBER TERM, 1934. 577 293 U. S. Decisions Denying Certiorari. Paul Koch for petitioner. Messrs. Samuel Kaufman and Henry Epstein for respondent. Reported below: 112 N. J. L. 536; 172 Atl. 198. No. 174. Luckenbach Steamship Co., Inc. et al. v. Middleton, Administrator, et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. William H. McGrann for petitioners. Messrs. Joseph W. Henderson, John W. Crandall, and Thomas F. Mount for respondents. Reported below: 70 F. (2d) 326. No. 175. National Box Co. v. McKinley, Trustee in Bankruptcy. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. John M. Lee for petitioner. Mr. Nathan William MacChesney for respondent. Reported below: 69 F. (2d) 642. No. 232. Redman v. Baltimore & Carolina Line, Inc. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Frederick R. Graves for petitioner. Mr. George Whitefield Betts, Jr., for respondent. Reported below: 70 F. (2d) 635. No. 179. Howard, Trustee in Bankruptcy, v. Chicago Gravel Co. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Abram N. Pritzker for peti-. tioner. Messrs. Kemper K. Knapp and Harry I. Allen for respondent. Reported below: 70 F. (2d) 391, 89995°—35------37 578 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. No. 180. American Surety Co. et al. v. Conroy. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Louis L. Dent for petitioners. Mr. Charles C. Spencer for respondent. Reported below: 71 F. (2d) 107. No. 181. Pratt Food Co. v. Geo. H. Lee Co. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Augustus B. Stoughton for petitioner. Mr. T. Hart Anderson for respondent. Reported below: 71 F. (2d) 823. No. 182. Aetna Life Insurance Co. v. Braukman. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Messrs. Elmer L. Brock, E. R. Campbell, and Milton Smith for petitioner. Mr. Clarence A. Brandenburg for respondent. Reported below: 70 F. (2d) 647. No. 184. New England Mutual Life Insurance Co. v. Braukman. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Messrs. Wm. W. Grant, Jr., Morrison Shafroth, and Henry W. Toll for petitioner. Mr. Clarence A. Brandenburg for respondent. Reported below: 70 F. (2d) 647. No. 185. Washburn et al., Executors, v. Commissioner of Internal Revenue. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Watson Washburn for petitioners. Solicitor General Biggs, Assistant Attorney General Wideman, and Mr. James W. Morris for respondent. Reported below: 70 F. (2d) 1023, OCTOBER TERM, 1934. 579 293 U. S. Decisions Denying Certiorari. No. 187. Dingfelder et al. v. The Brenta II et al.; and No. 188. Boera et al. v. The Brenta II. October 8, 1934. Petition for writs of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Frank I. Finkler for petitioners. Mr. Homer L. Loomis for respondents. Reported below: 68 F. (2d) 999. No. 189. Cornell Steamboat Co. v. Scholl. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Robert S. Erskine for petitioner. Mr. Horace L. Cheyney for respondent. Reported below: 71 F. (2d) 682. __________ No. 190. Brown v. Commissioner of Internal Revenue. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. W. A. Bolinger for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, Mr. James W. Morris, and Miss Helen R. Carloss for respondent. Reported below: 69 F. (2d) 863. No. 191. Darby v. Montgomery County National Bank. October 8, 1934. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia denied. Mr. Lucien H. Mercier for petitioner. Messrs. Edwin C. Brandenburg, Louis M. Denit, and Leonard J. Ganse for respondent. Reported below: 63 App. D. C. 313; 72 F. (2d) 181. No. 218. International Finance Corp. v. General Motors Acceptance Corp. October 8, 1934. Petition for writ of certiorari to the United States Court of Ap- 580 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. peals for the District of Columbia denied. Messrs: Jo V. Morgan, Charles A. Douglas, Hugh H. Obear, and Edmond D. Campbell for petitioner. Messrs. Frank S. Bright, George C. Shinn, and H. Stanley Hinrichs for respondent. Reported below: 63 App. D. C. 325; 72 F. (2d) 376. __________ No. 192. Alphonse K. Roy v. Helvering, Commissioner of Internal Revenue; No. 193. Charles J. Derbes v. Same; No. 194. Inez M. Roy v. Same; No. 195. Alphonse K. Roy and Charles J. Derbes, Executors, v. Same; No. 196. Carmen Derbes v. Same; Nos. 197 to 201. Stafford, Derbes & Roy, Inc. v. Same; and No. 202. Upstream Realty Co., Inc. v. Same. October 8, 1934. Petition for writs of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. John J. Finnorn for petitioners. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. James W. Morris and Norman D. Keller for respondent. Reported below: 69 F. (2d) 786, 788. No. 203. Texas & New Orleans R. Co. et al. v. Webster et al. October 8, 1934. Petition for writ of certiorari to the Supreme Court of Texas denied. Messrs. Michael Nagle, Maury Kemp, and Jules Henri Tallichet for petitioners. Mr. Robert Ewing Thomason for respondents. Reported below: 70 S. W. (2d) 394. See also, 53 S. W. (2d) 656. No. 320. Texas & Pacific Ry. Co. v. Dawson. October 8, 1934. Petition for writ of certiorari to the Supreme Court of Texas denied. Messrs. Joseph H. T. OCTOBER TERM, 1934. 581 293 IL S. Decisions Denying Certiorari. Bibb and T. D. Gresham for petitioner. Mr. S. P. Jones for respondent. Reported below: 70 S. W. (2d) 392. See also, 45 S. W. (2d) 367. No. 204. Van Deventer v. Tennessee ex rel. Wallace, Comptroller. October 8, 1934. Petition for writ of certiorari to the Supreme Court of Tennessee denied. Mr. Horace Van Deventer, pro se. No appearance for respondent. Reported below: 167 Tenn. 240; 68 S. W. (2d) 478. No. .205. Carrollton Excelsior & Fuel Co., Ltd. v. New Orleans & Northeastern R. Co. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. W. J. Wagues-pack for petitioner. No appearance for respondent. Reported below: 69 F. (2d) 691. No. 206. Alexander v. Theleman, Trustee in Bankruptcy. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Messrs. Henry C. Vidal and William V. Hodges for petitioner. Mr. Wilbur F. Denious for respondent. Reported below: 69 F. (2d) 610. No. 207. Baltimore & Ohio R. Co. v. DeWald. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. George W. P. Whip for petitioner. No appearance for respondent. Reported below: 71 F. (2d) 810. No. 209. Harris v. United States. October 8, 1934. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia denied. Messrs. 582 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. Neil Burkinshaw and Wm. B. O’Connell for petitioner. Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith for the United States. Reported below: 63 App. D. C. 232; 71 F. (2d) 532. No. 216. Maryland Casualty Co. v. American Trust Co. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. J. Newton Rayzor for petitioner. No appearance for respondent. Reported below: 71 F. (2d) 137. No. 217. Parsons v. Provident Mutual Life Insurance Co. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. J. W. Press for petitioner. No appearance for respondent. Reported below: 70 F. (2d) 863. No. 220. Witherbee et al., Executors, et al. v. Commissioner of Internal Revenue. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Spotswood D. Bowers and Frank C. Laughlin for petitioners. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. James W. Morris and John G. Remey for respondent. Reported below: 70 F. (2d) 696. No. 222. Clinch-Mitchell Construction Co. v. McCullough et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. C. A. Randolph and Addison L. Gardner, Jr., for petitioner. No appearance for respondents. Reported below: 71 F. (2d) 17. OCTOBER TERM, 1934. 583 293 U. S. Decisions Denying Certiorari. No. 223. Hillmert et al. v. Busch, Receiver. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Walter E. Wiles for petitioners. Mr. Gustavus J. Tatge for respondent. Reported below: 71 F. (2d) 411. No. 224. McKinlay, Trustee in Bankruptcy v. Philadelphia National Bank et al. October 8, 1934. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia denied. Mr. Justice Roberts took no part in the consideration or decision of this application. Mr. Dean Hill Stanley for petitioner. Messrs. Bynum E. Hinton and Everett H. Brown, Jr., for respondents. Reported below: 63 App. D. C. 296; 72 F. (2d) 89. No. 225. Helvering, Commissioner of Internal Revenue, v. B. B. Jones; No. 226. Same v. Elliott L. Jones; No. 227. Same v. Robert L. Jones; and No. 228. Same v. Bernard B. Jones et al. October 8, 1934. Petition for writs of certiorari to the United States Court of Appeals for the District of Columbia denied. Solicitor General Biggs, Assistant Attorney General Wideman, Mr. James W. Morris, and Miss Helen R. Carloss for petitioner. Mr. F. Edward Mitchell for respondents. Reported below: 63 App. D. C. 204; 71 F. (2d) 214. _________ No. 229. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. et al. v. Newberry. October 8, 1934. Petition for writ of certiorari to the Supreme Court of Wisconsin denied. Messrs. William A. Hayes and John E. Palmer for petitioners. Mr. W. H. Stafford for respondent. Reported below: 214 Wis. 547; 252 N. W. 579. 584 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293U.S. No. 230. Commercial Trust Co. v. United States. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Harold Harper for petitioner. Solicitor General Biggs, Assistant Attorney General Sweeney, and Messrs. Paul A. Sweeney and W. Marvin Smith for the United States. No. 235. Eckhardt et al., Trustees, v. Ball et al., Trustees. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. Frank H. Pardee for petitioners. Mr. Charles B. Rugg for respondents. Reported below: 72 F. (2d) 316. No. 236. Hardenbrook et al. v. Landquist et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Isaac E. Ferguson and Edward Sonnenschein for petitioners. Mr. Walter E. Wiles for respondents. Reported below: 70 F. (2d) 929. No. 238. Whitney et al., Executors, v. United States. October 8, 1934. Petition for writ of certiorari to the Court of Claims denied. Mr. Will R. Gregg for petitioners. Solicitor General Biggs and Assistant Attorney General Wideman for the United States. Reported below: 79 Ct. Cis. 480; 6 F. Supp. 849. No. 239. Faris v. Helvering, Commissioner of Internal Revenue. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Thomas R. Dempsey, A. Calder Mackay, and Clark J. Milliron for petitioner. Solicitor OCTOBER TERM, 1934. 585 293 U. S. Decisions Denying Certiorari. General Biggs, Assistant Attorney General Wideman, and Messrs. James W. Morris and John G. Remey for respondent. Reported below: 71 F. (2d) 610. No. 240. Kelly v. National City Bank of New York. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. William F. Kelly, pro se. Mr. F. S. Easby-Smith for respondent. Reported below: 71 F. (2d) 689. No. 241. Missouri ex rel. Abeille Fire Insurance Co. et al. v. Sevier, Judge. October 8, 1934. Petition for writ of certiorari to the Supreme Court of Missouri denied. The Chief Justice and Mr. Justice Roberts took no part in the consideration or decision of this application. Messrs. E. R. Morrison and R. J. Folonie for petitioners. Messrs. Gilbert Lamb, Floyd E. Jacobs, and John T. Barker for respondent. Reported below: 335 Mo. 269; 73 S. W. (2d) 361. No. 244. Locke Insulator Corp. v. Jacque, Administratrix. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Arthur H. Deibert for petitioner. Mr. William L. Clay for respondent. Reported below: 70 F. (2d) 680. No. 245. Stevenson v. Jefferson Standard Life Insurance Co. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. F. G. Hudson for petitioner. Mr. Sidney L. Herold for respondent. Reported below: 70 F. (2d) 72. 586 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. No. 246. George E. Warren Corp. v. United States. October 8, 1934. Petition for writ of certiorari to the United States Court of Customs and Patent Appeals denied. Mr. George W. Dalzell for petitioner. Solicitor General Biggs, Assistant Attorney General Jackson, and Mr. John T. Fowler, Jr., for the United States. Reported below: 22 C. C. P. A. (Cust.) 178; T. D. 47,125; 71 F. (2d) 434. No. 248. Fullilove et ux. v. United States. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Howard B. Warren and Joseph D. Barksdall for petitioners. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. James W. Morris and Lucius A. Buck for the United States. Reported below: 71 F. (2d) 852. No. 251. Consumers Power Co. v. Allegan et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Bernard J. Onen for petitioner. Messrs. Thomas G. Long and John C. Bills for respondents. Reported below: 71 F. (2d) 477. No. 252. Arkansas Utilities Co. v. Paragould et al. October 8,1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Leo J. Mundt and J. F. Loughborough for petitioner. Mr. Arthur L. Adams for respondents. Reported below: 70 F. (2d) 530. No. 253. McIntosh, Trustee, v. United States. October 8, 1934. Petition for writ of certiorari to the OCTOBER TERM, 1934. 587 293 U. S. Decisions Denying Certiorari. Circuit Court of Appeals for the Fourth Circuit denied. Messrs. Raymond M. Hudson and H. Earlton Hanes for petitioner. Solicitor General Biggs, Assistant Attorney General Blair, and Messrs. A. G. Iverson and W. Marvin Smith for the United States. Reported below: 70 F. (2d) 507. No. 321. Gilliam et al., Receivers, v. United States. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. H. Earlton Hanes for petitioners. Solicitor General Biggs and Mr. W. Marvin Smith for the United States. Reported below: 70 F. (2d) 507. No. 254. Paramount Publix Corp. v. American TriErgon Corp. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Justice Brandéis took no part in the consideration or decision of this application. Mr. Charles Neave for petitioner. Messrs. Thomas D. Thacher, Theodore S. Kenyon, and >8. Mortimer Ward, Jr., for respondent. Reported below: 71 F. (2d) 153. No. 255. Altoona Publix Theatres, Inc. v. American Tri-Ergon Corp, et al.; and No. 256. Wilmer & Vincent Corp, et al. v. Same. October 8, 1934. Petition for writs of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Justice Brandéis took no part in the consideration or decision of this application. Messrs. Charles Neave, Thomas G. Haight, Merrell E. Clark, and Henry R. Ashton for petitioners. Messrs. Thomas D. Thacher, Hugh M. Morris, and S. Mortimer Ward, Jr., for respondents. Reported below: 72 F (2d) 53. See ante, p. 528. 588 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. No. 258. Process Engineers, Inc. v. Container Corporation of America. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Albert G. McCaleb for petitioner. Mr. Clarence E. Mehlhope for respondent. Reported below: 70 F. (2d) 487. No. 259. First National Bank of Amarillo v. Continental Casualty Co. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Ben H. Stone for petitioner. Mr. 0. 0. Touchstone for respondent. Reported below: 71 F. (2d) 838. No. 265. Vanderlip v. United States. October 8, 1934. Petition for writ of certiorari to the Court of Claims denied. Messrs. Ellsworth C. Alvord and Floyd F. Toomey for petitioner. Solicitor General Biggs, As-sistant Attorney General Wideman, and Mr. George H. Foster for the United States. Reported below: 79 Ct. Cis. 489; 6 F. Supp. 965. No. 266. The Perth Amboy No. 3 et al. v. Dittmar et al. ; and No. 267. Same v. Hudson Barge Corp, et al. October 8, 1934. Petition for writs of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Anthony V. Lynch, Jr., for petitioners. Messrs. John C. Crawley and William F. Purdy for respondents. Reported below: 70 F. (2d) 1014. No. 273. Ott, Trustee in Bankruptcy, v. Long Beach Co. et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh OCTOBER TERM, 1934. 589 293 U. S. Decisions Denying Certiorari. Circuit denied. Messrs. Thomas A. Daily and D. A. McDougal for petitioner. Messrs. Arthur L. Gilliom, T. C. Mullen, and Shepard J. Crumpacker for respondents. Reported below: 70 F. (2d) 1. No. 274. Aluminum Company of America v. Bausch Machine Tool Co. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. The Chief Justice took no part in the consideration or decision of this application. Messrs. Edward F. McClennen and Frederick H. Wiggin for petitioner. Mr. Charles D. Lockwood for respondent. Reported below: 72 F. (2d) 236. No. 275. Vaughan v. Atlantic Life Insurance Co. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. William Waller for petitioner. Mr. Alexander W. Parker for respondent. Reported below: 71 F. (2d) 394. No. 276. Morrison et al. v. United States. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Walter J. Gex for petitioners. Solicitor General Biggs and Messrs. Amos W. W. Woodcock and W. Marvin Smith for the United States. Reported below: 71 F. (2d) 358. No. 277. The Yulu et al. v. United States. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Walter J. Gex for petitioners. Solicitor General Biggs, Assistant Attorney General Sweeney, and Mr. Paul A. Sweeney for the United States. Reported below: 71 F. (2d) 635. 590 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. No. 278. Marshall & Ilsley Bank, Trustee, v. Irving Trust Co., Trustee in Bankruptcy. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Walter E. Ernst for petitioner. Mr. Frederick H. Wood for respondent. Reported below: 70 F. (2d) 691. No. 279. Payne Glove Co. v. Boss Manufacturing Co. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Karl Kindleberger for petitioner. Mr. George A. Cooke for respondent. Reported below: 71 F. (2d) 768. No. 280. Silver Brown Co. v. Sheridan et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. Arthur B. Marsh for petitioner. Mr. John F. Neary for respondents. Reported below: 71 F. (2d) 935. No. 281. Chicago Title & Trust Co., Trustee, et al. v. Welton et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Walter T. Fisher and Walter H. Eckert for petitioners. Messrs. Silas H. Strawn and Ralph M. Shaw for respondents. Reported below: 70 F. (2d) 377. No. 282. United States ex rel. Lazo Koleff v. Reynolds, Immigration Inspector; and No. 283. United States ex rel. Boris Lazo Koleff v. Same. October 8, 1934. Petition for writs of certiorari to the Circuit Court of Appeals for the Seventh Circuit OCTOBER TERM, 1934. 591 293 U. S. Decisions Denying Certiorari. denied. Mr. Lazo Koleff, pro se. Mr. Boris Lazo Kolefl, pro se. Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith for respondent. Reported below: 70 F. (2d) 39. No. 285. Wiren v. Shubert Theatre Corp, et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Oscar B. Wiren for petitioner. Messrs. Louis Phillips and Milton R. Weinberger for respondents. Reported below: 70 F. (2d) 1023. No. 287. Singmaster v. New Jersey Zinc Co. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. George P. Dike and Nelson Littell for petitioner. Mr. Burt D. Whedon for respondent. Reported below: 71 F. (2d) 277. No. 290. Connecticut General Life Insurance Co. v. Maher. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Samuel Knight, F. Eldred Boland, and John H. Riordan for petitioner. Mr. Wm. Samuel Graham for respondent. Reported below: 70 F. (2d) 441. No. 291. Hogue et al. v. Stricker Land & Timber Co. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Patrick H. Loughran, S. B. Laub, Allan Sholars, and L. T. Kennedy for petitioners. Messrs. A. K. Shipe and Charles Kerr for respondent. Reported below: 69 F. (2d) 167; 70 id. 722. 592 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. No. 297. Rittersbacher et al. v. Board of Supervisors of Los Angeles County et al. October 8, 1934. Petition for writ of certiorari to the Supreme Court of California denied. Mr. Daniel E. Farr for petitioners. Mr. Everett W. Mattoon for respondents. Reported below: 220 Cal. 535; 32 P. (2d) 135. No. 298. American Title & Trust Co. v. Gulf Refining Co. et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Branch P. Kerfoot, George S. Hobart, and Duane E. Minard for petitioner. Mr. Frederick H. Wood for respondents. Reported below: 72 F. (2d) 248. No. 299. Cord v. McFie, Receiver. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. S. W. Odell for petitioner. Mr. Jefferson P. Chandler for respondent. Reported below: 71 F. (2d) 702. No. 300. Campbell v. Chase National Bank. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Frederick B. Campbell and Lounsbury D. Bates for petitioner. Mr. H. G. Pickering for respondent. Reported below: 71 F. (2d) 669. No. 301. Campbell v. Medalie, District Attorney. October 8,1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Frederick B. Campbell and Lounsbury D. Bates for petitioner. Solicitor General Biggs and Mr. Harry S. Ridgely for respondent. Reported below: 71 F. (2d) 671. OCTOBER TERM, 1934. 593 293 U. S. Decisions Denying Certiorari. No. 302. Hensley v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co. October 8, 1934. Petition for writ of certiorari to the Supreme Court of Nebraska denied. Mr. Nelson C. Pratt for petitioner. Messrs. Wymer Dressier, Robert D. Neely, Samuel H. Cady, and William T. Farley for respondent. Reported below: 126 Neb. 579; 254 N. W. 426. No. 304. Annunziato v. United States. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. C. C. Cousins for petitioner. Solicitor General Biggs, Assistant Attorney General Stephens, and Mr. M. S. Huber-man for the United States. Reported below: 70 F. (2d) 1021. ___________ No. 305. Otis Elevator Co. v. Pacific Finance Corp, et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Edwin W. Sims, Wallace R. Lane, Franklin J. Stransky, and Benton Baker for petitioner. Messrs. Frederick S. Lyon and Leonard S. Lyon for respondents. Reported below: 68 F. (2d) 664; 71 id. 641. No. 306. Kulesza et al. v. Blair et al., Receivers. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Jacob G. Grossberg for petitioners. Messrs. James M. Sheean and Weymouth Kirkland for respondents. Reported below: 70 F. (2d) 505. No. 307. Fidelity Mutual Life Insurance Co. v. Merchants & Mechanics Bank et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court 89995°—35--------38 594 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. of Appeals for the Fifth Circuit denied. Mr. A. 0. B. Sparks for petitioner. No appearance for respondents. Reported below: 71 F. (2d) 777. No. 308. Texas Steel Co. v. Missouri-Kansas-Texas R. Co. et al. October 8, 1934. Petition for writ of certiorari to the Court of Civil Appeals of Texas, 2d Supreme Judicial District, denied. Mr. George W. Armstrong for petitioner. Mr. Fred L. Wallace for respondents. Reported below: 70 S. W. (2d) 484. No. 309. Helvering, Commissioner of Internal Revenue, v. Walbridge. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Solicitor General Biggs for petitioner. Messrs. Russell D. Morrill and Chauncey Newlin for respondent. Reported below: 70 F. (2d) 683. No. 310. Helvering, Commissioner of Internal Revenue, v. Archbald. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Solicitor General Biggs for petitioner. Mr. W. W. Spaulding for respondent. Reported below: 70 F. (2d) 720. No. 311. Elting, Collector of Customs, v. Lancashire Shipping Co., Ltd. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Solicitor General Biggs for petitioner. Mr. John W. Crandall for respondent. Reported below: 70 F. (2d) 699. No. 312. E. A. Laboratories, Inc. v. Trico Products Corp. October 8, 1934. Petition for writ of certiorari to OCTOBER TERM, 1934. 595 293 U. S. Decisions Denying Certiorari. the Circuit Court of Appeals for the Second Circuit denied. Messrs. Hugh M. Morris and Holland S. Duell for petitioner. Mr. Edwin J. Prindle for respondent. Reported below: 71 F. (2d) 677. No. 313. Artcraft Silk Hosiery Mills, Inc. v. Gotham Silk Hosiery Co. et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Messrs. Thomas G. Haight, Clifton V. Edwards, and Leon Edelson for petitioner. Mr. Samuel E. Darby, Jr., for respondents. Reported below: 72 F. (2d) 47. No. 314. Levering & Garrigues Co. et al. v. Morrin et al. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Frederick H. Wood and Merritt Lane for petitioners. Messrs. Frank P. Walsh and John Walsh for respondents. Reported below: 71 F. (2d) 284. No. 316. Coastwise Transportation Corp. v. Commissioner of Internal Revenue. October 8,1934. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. Robert E. Goodwin for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Mr. James W. Morris for respondent. Reported below: 71 F. (2d) 104. No. 317. Kelly v. New York, Chicago & St. Louis R. Co. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. William C. Bachelder and H. K. Bach-elder for petitioner. Mr. Russell P. Harker for respondent. Reported below: 70 F. (2d) 548. 596 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. No. 318. Art Metal Works, Inc. v. Abraham & Straus, Inc. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Martin W. Littleton, Joseph Lorenz, and Kenneth S. Neal for petitioner. Mr. Robert S. Blair for respondent. Reported below: 70 F. (2d) 639. No. 322. United States ex rel. New Mexico v. Ickes, Secretary of the Interior. October 8, 1934. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia denied. Messrs. Frank H. Patton, Peter Q. Nyce, Roy St. Lewis, and Samuel W. McIntosh for petitioner. Solicitor General Biggs, Assistant Attorney General Blair, and Mr. C. E. Collett for respondent. Reported below: 63 App. D. C. 278; 72 F. (2d) 71. Nos. 323 and 324. Powers et al. v. Johnson, Trustee in Bankruptcy, et al. October 8, 1934. Petition for writs of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Frank S. Quinn and Will Steel for petitioners. Mr. James D. Head for respondents. Reported below: 71 F. (2d) 48. No. 326. Murphy et al., Executors, v. Commissioner of Internal Revenue. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Edwin L. Garvin for petitioners. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. James W. Morris and John J. Pringle for respondent. Reported below: 70 F. (2d) 790. __________ No. 327. Metropolitan Life Insurance Co. v. Trapp. October 8, 1934. Petition for writ of certiorari to the OCTOBER TERM, 1934. 597 293 U. S. Decisions Denying Certiorari. Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Henry I. Eager, William C. Michaels, Leroy A. Lincoln, and Charles M. Blackmar for petitioner. Mr. Clarence A. Randolph for respondent. Reported below: 70 F. (2d) 976. No. 329. Boston & Maine Railroad v. Hanley, Administratrix; and No. 330. Same v. Murphy, Administratrix. October 8, 1934. Petition for writs of certiorari to the Superior Court in and for the County of Middlesex, Massachusetts, denied. Mr. John M. Maloney for petitioner. Mr. Edward M. Dangel for respondents. Reported below: 286 Mass. 390; 190 N. E. 501. No. 332. Herzog v. Stern et al., Executors. October 8, 1934. Petition for writ of certiorari to the Supreme Court of New York denied. Mr. James Marshall for petitioner. Mr. George Whitefield Betts, Jr., for respondents. Reported below: 264 N. Y. 379; 191 N. E. 23. No. 334. Darden v. Nashville, Chattanooga & St. Louis Railway. October 8, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Herman J. Nord and C. C. Grassham for petitioner. Messrs. G. T. Fitzhugh and Fitzgerald Hall for respondent. Reported below: 71 F. (2d) 799. No. 429. Poch v. Hill, Warden; and No. 430. Same v. Fake, U. S. District Judge. October 15, 1934. Petition'for writs of certiorari to the Circuit Court of Appeals for the Third Circuit, and motion for leave to proceed further in forma pauperis, denied. Mr. Leonard R. Poch, pro se. No appearance for respondents. Reported below: 71 F. (2d) 906. 598 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. No. 432. Martin et al. v. Texas & Pacific Ry. Co. October 15, 1934. Petition for writ of certiorari to the Supreme Court of Texas, and motion for leave to proceed further in forma pauperis, denied. Mr. Deck Martin, pro se. No appearance for respondent. Reported below: 123 Tex. 383; 71 S. W. (2d) 867. No. 319. Pevely Dairy Co. v. Cripe. October 15, 1934. Petition for writ of certiorari to the Appellate Court, Fourth District, of Illinois, denied. Messrs. June C. Smith and Walter L. Hensley for petitioner. No appearance for respondent. Reported below: 275 Ill. App. 231. __________ No. 328. Capone v. Aderhold, Warden. October 15, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Wm. E Leahy, Wm. J. Hughes, Jr., and James F. Reilly for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. Justin Miller, James W. Morris, John H. McEvers, and Earl C. Crouter for respondent. Reported below: 71 F. (2d) 160. No. 331. Texas Employers’ Insurance Assn, et al. v. Volek et al. October 15, 1934. Petition for writ of certiorari to the Supreme Court of Texas denied. Messrs. Roy C. Sewell and Lawrence Walton Morris for petitioners. Mr. Lewis Fisher for respondents. Reported below: 69 S. W. (2d) 33. No. 333. McGinley Corporation v. Lido Oil Co. et al. October 15, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. T. R. Boone for petitioner. No appearance for respondents. Reported below: 71 F. (2d) 81. OCTOBER TERM, 1934. 599 293 U. S. Decisions Denying Certiorari. No. 335. Old Gold Chemical Co., Inc. v. Chese-brough Manufacturing Co. October 15, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. L. E. Gwinn for petitioner. Messrs. Charles N. Burch, Hugh M. Morris, and Wm. Wallace White for respondent. Reported below: 70 F. (2d) 383. No. 336. Standard Oil Co. (Indiana) v. United States. October 15, 1934. Petition for writ of certiorari to the Court of Claims denied. Messrs. Albert L. Hopkins, Harry B. Sutter, Louis L. Stephens, and Anderson A. Owen for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Mr. H. Brian Holland for the United States. Reported below: 78 Ct. Cis. 714; 5 F. Supp. 976. No. 337. United States v. American Safety Razor Corp. October 15, 1934. Petition for writ of certiorari to the Court of Claims denied. Solicitor General Biggs for the United States. Messrs. Charles D. Hamel and John Enrietto for respondent. Reported below: 79 Ct. Cis. 141; 6 F. Supp. 293, 7 id. 196. No. 341. Saunders, Trustee in Bankruptcy, v. Given. October 15, 1934. Petition for writ of certiorari to the Court of Civil Appeals, 8th Supreme Judicial District, of Texas, denied. Mr. U. S. Goen for petitioner. Messrs. Thornton Hardie and Ben R. Howell for respondent. Reported below: 70 S. W. (2d) 310. No. 343. United States v. Youngstown Sheet & Tube Co. October 15, 1934. Petition for writ of certiorari to the Court of Claims denied. Solicitor General 600 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. Biggs for the United States. Mr. Charles F. Fawsett for respondent. Reported below: 79 Ct. Cis. 683; 7 F. Supp. 290. _________ No. 346. Hay, Executor, v. Irving Trust Co., Trustee in Bankruptcy. October 15, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Henry S. Miller for petitioner. Mr. Wm. D. Whitney for respondent. Reported below: 71 F. (2d) 1018. No. 348. Helvering, Commissioner of Internal Revenue, v. Wallace, Executrix. October 15, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Solicitor General Biggs for petitioner. Mr. Cedric A. Major for respondent. Reported below: 71 F. (2d) 1002. No. 349. Joseph Joseph & Brothers Co. v. United States. October 15, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Preston B. Kavanaugh for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. James W. Morris, Frank J. Ready, Jr., and H. Brian Holland for the United States. Reported below: 71 F. (2d) 389. No. 350. Shawkee Manufacturing Co. et al. v. Hartford-Empire Co. October 15, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Messrs. Drury W. Cooper, Allan C. Bakewell, and William B. Jaspert for petitioners. Messrs. Clarence P. Byrnes, Vernon M. Dorsey, Thomas G. Haight, Wm. J. Belknap, and Robson D. Brown for respondent. Reported below: 68 F. (2d) 726. OCTOBER TERM, 1934. 601 293 U. S. Decisions Denying Certiorari. No. 351. Downers Grove Sanitary District v. Bunge et al. October 15, 1934. Petition for writ of certiorari to the Supreme Court of Illinois denied. Mr. Daniel S. Wentworth for petitioner. Mr. Ralph C. Putnam for respondents. Reported below: 356 Ill. 531; 191 N. E. 73. No. 352. Alfred Hofmann, Inc. v. Textile Machine Works. October 15, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Messrs. Samuel E. Darby, Jr., and Walter A. Darby for petitioner. Mr. Hubert Howson for respondent. Reported below: 71 F. (2d) 973. No. 353. Woods v. Regain, Inc. October 15, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Joseph Fischer for petitioner. Mr. Joseph Glass for respondent. Reported below: 71 F. (2d) 270. No. 354. Ada V. Peabody v. Marlboro Implement Co.; and No. 355. John T. W. Peabody v. Same. October 15, 1934. Petition for writs of certiorari to the United States Court of Appeals for the District of Columbia denied. Messrs. Leonard J. Ganse and Louis M. Denit for petitioners. Mr. Edwin A. Swingle for respondent. Reported below: 63 App. D. C. 288; 72 F. (2d) 81. No. 356. Vinton Petroleum Co. v. Commissioner of Internal Revenue. October 15, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. W. A. Bolinger for petitioner. Solicitor General Biggs, Assistant Attorney General Wide- 602 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. man, and Messrs. James W. Morris and Warren F. Wattles for respondent. Reported below: 71 F. (2d) 420. No. 357. Nisley Shoe Co. v. Nisley Co. et al. October 15, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. H. A. Toulmin, H. A. Toulmin, Jr., and Chalmers M. Parker for petitioner. Mr. Francis J. Wright for respondents. Reported below: 72 F. (2d) 118. No. 358. McLean v. Jaffray et al., Receivers. October 15, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Mortimer H. Boutelle, John H. Hougen, and Adrian H. David for petitioner. Messrs. Charles R. Fowler, Henry C. Carlson, and John B. Faegre for respondents. Reported below: 71 F. (2d) 743. No. 359. Townshend, Trustee in Bankruptcy, v. Lamb, Receiver. October 15, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. E. V. Townshend for petitioner. No appearance for respondent. Reported below: 71 F. (2d) 590. No. 360. Montgomery v. Terminal Railroad Assn, of St. Louis. October 15, 1934. Petition for writ of certiorari to the Supreme Court of Missouri denied. Mr. John S. Marsalek for petitioner. No appearance for respondent. Reported below: 335 Mo. 348; 73 S. W. (2d) 236. No. 362. Neale et al. v. Hazen et al., Commissioners of the District of Columbia. October 15, OCTOBER TERM, 1934. 603 293 U. S. Decisions Denying Certiorari. 1934. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia denied. Messrs. Paul E. Lesh, Dion S. Birney, and C. Clinton James for petitioners. Messrs. E. Barrett Pretty man, Vernon E. West, and Walter L. Fowler for respondents. Reported below: 63 App. D. C. 239; 71 F. (2d) 692. No. 363. Wheeling Mold & Foundry Co. v. Helvering, Commissioner of Internal Revenue. October 15, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. Percy W. Phillips, Kingman Brewster, James S. Y. Ivins, and O. R. Folsom-Jones for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. Justin Miller and James W. Morris for respondent. Reported below: 71 F. (2d) 749. No. 364. Missouri-Kansas-Texas R. Co. et al. v. Embrey, Administratrix. October 15, 1934. Petition for writ of certiorari to the Supreme Court of Oklahoma denied. Messrs. Joseph M. Bryson and M. D. Green for petitioners. Messrs. H. L. Stuart, R. R. Bell, and E. P. Ledbetter for respondent. Reported below: 168 Okla. 433; 33 P. (2d) 481. No. 365. Transcontinental & Western Air, Inc. v. Farley, Postmaster General, et al. October 15, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. John Thomas Smith for petitioner. Solicitor General Biggs and Messrs. Carl L. Ristine, W. Marvin Smith, and Lee A. Jackson for respondents. Reported below: 71 F. (2d) 288. 604 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. No. 366. Mississippi Valley Trust Co. et al. v. Commissioner of Internal Revenue. October 15, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. H. Stanley Hinrichs, Abraham Lowenhaupt, Frank S. Bright, and Stanley S. Waite for petitioners. Solicitor General Biggs, Assistant Attorney General Wideman, and Mr. James W. Morris for respondent. Reported below: 72 F. (2d) 197. No. 368. Hansen v. United States. October 15, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Warren E. Miller for petitioner. Solicitor General Biggs and Messrs. Will G. Beardslee and Randolph C. Shaw for the United States. Reported below: 70 F. (2d) 230. No. 369. Miller et al. v. Pyrites Co., Inc. et al.; and No. 370. Merrell et al. v. Same. October 22, 1934. Petitions for writs of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Wm. Burnet Wright for petitioners. Messrs. Murray F. Johnson and G. Ridgely Sappington for respondents. Reported below: 71 F. (2d) 804. No. 371. Wadsworth Electric Manufacturing Co. v. Westinghouse Electric & Manufacturing Co. October 22, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Walter F. Murray for petitioner. Messrs. Drury W. Cooper, Thomas J. Byrne, and Victor S. Beam for respondent. Reported below: 71 F. (2d) 850. OCTOBER TERM, 1934. 605 293 U. S. Decisions Denying Certiorari. No. 378. Hutton v. New York Title & Mortgage Co. October 22, 1934. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia denied. Messrs. Levi H. David and E. Hilton Jackson for petitioner. Messrs. George P. Hoover and James C. Rogers for respondent. Reported below: 63 App. D. C. 266; 71 F. (2d) 989. No. 380. Fred W. Mears Heel Co., Inc. v. Walley. October 22, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Messrs. Eben Winthrop Freeman and Walter Bates Farr for petitioner. Mr. Nathan W. Thompson for respondent. Reported below: 71 F. (2d) 876. No. 396. Standard Nut Margarine Co. v. Mellon et al. October 22, 1934. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia denied. Messrs. George N. Murdock and Lloyd Anderson for petitioner. Messrs. Frank J. Hogan, Donald D. Shepard, Arthur B. Van Buskirk, William M. Robinson, William J. Donovan, and Henry Herrick Bond for respondents. Reported below: 63 App. D. C. 339; 72 F. (2d) 557. No. 410. United States v. Matoil Service & Transport Co. October 22, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Solicitor General Biggs for the United States. Mr. Louis Halle for respondent. Reported below: 72 F. (2d) 772. ' No. 367. Little, Trustee in Bankruptcy, v. Bank of Wadesboro. October 22, 1934. Petition for writ of 606 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. W. C. Davis for petitioner. Mr. John M. Robinson for respondent. Reported below: 71 F. (2d) 513. No. 372. Alexander Pickering & Co., Ltd. v. Chinese American Cold Storage Assn., Inc. October 22, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Alfred Sutro and Eugene M. Prince for petitioner. No appearance for respondent. Reported below: 71 F. (2d) 895. No. 376. Morgan v. Hoage, Deputy Commissioner, et al. October 22, 1934. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia denied. Mr. H. Mason Welch for petitioner. Mr. Edward S. Brashears for respondents. Reported below: 63 App. D. C. 355; 72 F. (2d) 727. No. 377. San Francisco Shopping News Co. v. South San Francisco et al. October 22, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. M. C. Sloss for petitioner. Mr. Charles N. Kirkbride for respondents. Reported below: 69 F. (2d) 879. No. 381. Farley et al., Trustees, v. Seidl et al. October 22, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Joseph Very Quarles for petitioners. Messrs. Thomas A. Sanderson, Samuel Becker, and Charles B. Quarles for respondents. Reported below: 71 F. (2d) 791. OCTOBER TERM, 1934. 607 293 U. S. Decisions Denying Certiorari. No. 382. Schleier v. United States. October 22, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Paul Koch for petitioner. Solicitor General Biggs and Mr. Harry S. Ridgely for the United States. Reported below: 72 F. (2d) 414. No. 385. American Compress & Warehouse Co. v. Bender. October 22, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. W. Scott Wilkinson and C. Huffman Lewis for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. James W. Morris, Lee A. Jackson, and H. Brian Holland for respondent. Reported below: 70 F. (2d) 655. No. 388. Carlsen v. Nebraska. October 22, 1934. Petition for writ of certiorari to the Supreme Court of Nebraska denied. Messrs. Ernest B. Perry and Walter D. James for petitioner. Messrs. Paul F. Good and Wm. H. Wright for respondent. Reported below: 127 Neb. 11; 254 N. W. 744. No. 390. Kimball et al. v. Commissioner of Internal Revenue. October 22, 1934. Petition for writ Of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Watson Washburn for petitioners. Solicitor General Biggs, Assistant Attorney General Wideman, and Mr. James W. Morris for respondent. Reported below: 71 F. (2d) 1011. No. 391. Illinois Central R. Co. v. Crain, Administratrix. October 22, 1934. Petition for writ of certiorari to the Supreme Court of Missouri denied. Messrs. 608 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. M. F. Watts, Wm. R. Gentry, Edward C. Craig, and Charles A. Helsell for petitioner. No appearance for respondent. 335 Mo. 658; 73 S. W. (2d) 786. No. 392. Arko Mining Co. v. Ickes, Secretary of the Interior. October 22, 1934. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia denied. Mr. Clyde L. Rogers for petitioner. Solicitor General Biggs, Assistant Attorney General Blair, and Mr. Aubrey Lawrence for respondent. Reported below: 63 App. D. C. 321; 72 F. (2d) 189. No. 402. Houghton et al., Executors, v. Commissioner of Internal Revenue; No. 403. Houghton v. Same; and No. 404. Houghton et al. v. Same. October 22, 1934. Petition for writs of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Charles Angulo, Russell L. Bradford, and George H. Craven for petitioners. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. Sewall Key and John G. Remey for respondent. Reported below: 71 F. (2d) 656. No. 405. Corning Trust Co., Executor, v. Commissioner of Internal Revenue. October 22, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Charles Angulo, Russell L. Bradford, and George H. Craven for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. Sewall Key and John G. Remey for respondent. Reported below: 71 F. (2d) 656. OCTOBER TERM, 1934. 609 293 U. S. Decisions Denying Certiorari. No. 406. Sullivan v. Commissioner of Internal Revenue. October 22, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Charles Angulo, Russell L. Bradford, and George H. Craven for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. Sewall Key and John G. Remey for respondent. Reported below: 71 F. (2d) 656. No. 407. Hollister v. Commissioner of Internal Revenue. October 22, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Charles Angulo, Russell L. Bradford, and George H. Craven for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. Sewall Key and John G. Remey for respondent. Reported below: 71 F. (2d) 656. No. 408. City Bank Farmers Trust Co., Trustee, v. Commissioner of Internal Revenue. October 22,1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Charles Angulo, Russell L. Bradford, and George H. Craven for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. Sewall Key and John G. Remey for respondent. Reported below: 71 F. (2d) 656. No. 409. Robison v. First National Pictures, Inc., et al. October 22, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Zach Lamar Cobb for petitioner. Mr. Irving M. Walker for respondents. Reported below: 72 F. (2d) 37. 89995 °—35-39 610 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. No. 459. Handy, Receiver, v. Oklahoma ex rel. King, Attorney General. October 22, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Mr. Joseph W. Bailey, Jr., for petitioner. Mr. Malcolm E. Rosser for respondent. Reported below: 71 F. (2d) 697. No. 393. Warshauer v. Lloyd Sabaudo, S. A. November 5, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit is denied, for the reason that application for the writ of certiorari was not made within the time provided by law. Act of February 13, 1925, § 8 (a), 43 Stat. 936, 940; U. S. Code, Title 28, § 350; Medhurst v. The South American, 264 U. S. 587. Mr. Bernard S. Barron for petitioner. Mr. Homer L. Loomis for respondent. Reported below: 71 F. (2d) 146. No. 264. Warren Steam Pump Co. v. United States. November 5, 1934. Petition for writ of certiorari to the Court of Claims denied. Messrs. M. Manning Marcus and Merrill S. June for petitioner. Solicitor General Biggs and Assistant Attorney General Wideman for the United States. Reported below: 78 Ct. Cis. 751; 5 F. Supp. 781. No. 397. Maxfield v. Canadian Pacific Ry. Co. et al. November 5, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Alfred W. Bowen and Donald 0. Wright for petitioner. Mr. John E. Palmer for respondents. Reported below: 70 F. (2d) 982. No. 399. McShane, Administrator, et al. v. United States. November 5, 1934. Petition for writ of certio- OCTOBER TERM, 1934. 611 293 U. S. Decisions Denying Certiorari. rari to the Circuit Court of Appeals for the Tenth Circuit denied. Mr. Kenaz Huffman for petitioners. Solicitor General Biggs and Messrs. Will G. Beardslee and W. Marvin Smith for the United States. Reported below: 70 F. (2d) 991. No. 401. Sabine Towing Co., Inc. et al. v. Brennan, Administratrix, et al. November 5, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. William G. Feely and M. A. Grace for petitioners. Messrs. C. W. How th, M. G. Adams, and H. C. Hughes for respondents. Reported below: 72 F. (2d) 490. No. 411. Ahles Realty Corp. v. Helvering, Commissioner of Internal Revenue. November 5, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Montgomery B. Angell for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Mr. James W. Morris for respondent. Reported below: 71 F. (2d) 150. No. 415. Investment Properties Corp. v. Moore, Trustee in Bankruptcy. November 5, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Edward Hohfeld and Herbert W. Clark for petitioner. Mr. Thomas S. Tobin for respondent. Reported below: 71 F. (2d) 711. No. 417. Seiberling Rubber Co. v. Commissioner of Internal Revenue. November 5, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Frederick L. Pearce and George M. Morris for petitioner. Solicitor General Biggs, 612 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. Assistant Attorney General Wideman, and Messrs. James W. Morris and John G. Remey for respondent. Reported below: 70 F. (2d) 651. No. 418. Laurent, Receiver, et al. v. Stites, Trustee in Bankruptcy. November 5, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. David R. Castleman for petitioners. Mr. Elwood Hamilton for respondent. Reported below: 71 F. (2d) 802. No. 419. Skelly Oil Co. v. Universal Oil Products Co. November 5, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Messrs. Dean S. Edmonds, William H. Davis, W. P. Z. German, and Alvin F. Molony for petitioner. Messrs. Thomas G. Haight and William F. Hall for respondent. Reported below: 73 F. (2d) 1013. No. 420. Cincinnati, Newport & Covington Ry. Co. v. Covington et al. ; and No. 421. Covington et al. v. Cincinnati, Newport & Covington Ry. Co. November 5, 1934. Petition for writs of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. John Weld Peck, Frank M. Tracy, Charles W. Milner, Matt Herold, and Chester J. Ger kin for Cincinnati, Newport & Covington Ry. Co. Messrs. Stephens L. Blakely and Charlton B. Thompson for Covington et al. Reported below: 71 F. (2d) 117. No. 422. Cincinnati, Newport & Covington Ry. Co. v. Cincinnati et al. November 5, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the OCTOBER TERM, 1934. 613 293 U. S. Decisions Denying Certiorari. Sixth Circuit denied. Messrs. Charles W. Milner, Frank M. Tracy, Chester J. Gerkin, Matt Herold, and John Weld Peck for petitioner. Mr. John D. Ellis for respondents. Reported below: 71 F. (2d) 124. No. 427. Hilton Lumber Co. v. Grissom, Collector of Internal Revenue. November 5, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. John W. Townsend for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. James W. Morris and J. Louis Monarch for respondent. Reported below: 70 F. (2d) 892. No. 428. Cem Securities Corp. v. Commissioner of Internal Revenue. November 5, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. Thomas G. Haight, Robert H. Montgomery, and J. Marvin Haynes for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Mr. James W. Morris for respondent. Reported below: 72 F. (2d) 295. No. 436. Compagnie Française de Navigation a Vapeur v. San Souci, Collector of Customs. November 5, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. A. Warner Parker for petitioner. Solicitor General Biggs, Assistant Attorney General Sweeney, and Messrs. Wm. S. Ward and W. Marvin Smith for respondent. Reported below: 71 F. (2d) 651. No. 440. Broderick, Superintendent of Banks of New York, v. Irving Trust Co. November 5, 1934. Petition for writ of certiorari to the Circuit Court of Ap- 614 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. peals for the Second Circuit denied. Mr. Gerald Donovan for petitioner. Mr. Edward F. Colladay for respondent. No. 451. Osgood Co. et al. v. Koger, Trustee. November 5,1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Daniel H. Cotter for petitioners. Mr. John T. L. Hubbard for respondent. No. 414. Vineyard v. United States. November 5, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Wm. A. Sutherland for petitioner. Solicitor General Biggs and Messrs. Will G. Beardslee, Wilbur C. Pickett, and Young M. Smith for the United States. Reported below: 71 F. (2d) 624. No. 426. Stalcup et al. v. Stalcup. November 5, 1934. Petition for writ of certiorari to the Supreme Court of Kansas denied. Mr. Harry W. Colmery for petitioners. Messrs. Benjamin F. Hegler and A. V. Roberts for respondent. Reported below: 139 Kan. 213; 30 P. (2d) 1106. __________ No. 453. John Hassall, Inc. v. Rosenberg et al. November 5, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Asher Blum for petitioner. Messrs. Drury W. Cooper and Edgar M. Kitchin for respondents. Reported below: 73 F. (2d) 58. No. 509. Philippo v. California. November 12, 1934. Petition for writ of certiorari to the District Court of Appeal, 3rd Appellate District, of California, and motion for leave to proceed further herein in forma OCTOBER TERM, 1934. 615 293 U. S. Decisions Denying Certiorari. pauperis, denied. Mr. Pierre d’A. Philippo, pro se. No appearance for respondent. Reported below: 140 Cal. App. 236; 35 P. (2d) 134. No. 507. Morse Dry Dock & Repair Co. v. The President Arthur. November 12, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. The Chief Justice took no part in the consideration or decision of this application. Messrs. Courtland Palmer and Chauncey I. Clark for petitioner. Messrs. Cletus Keating and Saul S. Myers for respondent. Reported below: 72 F. (2d) 276. No. 449. United States ex rel. Campbell v. Hill, Warden. November 12, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. John A. Campbell, pro se. No appearance for respondent. Reported below: 72 F. (2d) 549. _________ No. 438. Lonergan et al. v. Lillard et al., Receivers, et al. November 12, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Messrs. Harry W. Colmery and Fred Robertson for petitioners. Messrs. T. M. Lillard and Roland Boynton for respondents. Reported below: 72 F. (2d) 865. No. 442. United States ex rel. Knight v. Mellon; No. 443. Same v. Stone; No. 444. Same v. Nutty; No. 445. Same v. Leovy; No. 446. Same v. Guthrie ; and No. 447. Same v. Davison. November 12, 1934. Petion for writs of certiorari to the Circuit Court of Appeals 616 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. for the Third Circuit denied. Mr. Wm. A. Gray for petitioner. Messrs. Wm. Watson Smith, Leon E. Hickman, and R. L. Batts for respondents. Reported below: 71 F. (2d) 1021. No. 448. Greenbaum, Administratrix, v. Columbian National Life Insurance Co. November 12, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. J. George Silberstein for petitioner. Messrs. Frederick H. Nash, Claude R. Branch, and Arthur C. Patterson for respondent. Reported below: 70 F. (2d) 1016. No. 458. Shreveport Producing & Refining Co., Inc. v. Commissioner of Internal Revenue. November 12, 1934. 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, Assistant Attorney General Wideman, and Messrs. Sewall Key, S. E. Blackham, and H. Brian Holland for respondent. Reported below: 71 F. (2d) 972. No. 464. Eastern Ohio Transport Corp. v. Wheeling et al. November 12, 1934. Petition for writ of certiorari to the Supreme Court of Appeals of West Virginia denied. Mr. Howard D. Matthews for petitioner. Mr. Charles M. McCamic for respondents. Reported below: 115 W. Va. —; 175 S. E. 219. No. 473. Shefford Cheese Co. v. Lakeshire Cheese Co. November 12, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Arthur M. Hood and Louis Quarles for OCTOBER TERM, 1934. 617 • 293 U. S. Decisions Denying Certiorari. petitioner. Mr. Charles Neave for respondent. Reported below: 72 F. (2d) 497. No. 495. Pittsburgh Terminal Coal Corp. v. Bennett, Administratrix. November 12, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Messrs. Robert T. McCracken and Sidney J. Watts for petitioner. Messrs. Harvey A. Miller and G. C. Ladner for respondent. Reported below: 70 F. (2d) 65. No. 462. Hudson et al. v. Texas Gulf Sulphur Co. et al. November 19, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Justice Stone took no part in the consideration or decision of this application. Messrs. Nathan L. Miller and William W. Miller for petitioners. Messrs. Joseph M. Hartfield, Richard T. Fleming, and Jacob J. Lesser for respondents. Reported below: 72 F. (2d) 251. Nos. 512 and 513. Consolidated Dairy Products Co., Inc. v. Irving Trust Co., Trustee. November 19, 1934. Petition for writs of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Justice Stone and Mr. Justice Roberts took no part in the consideration or decision of this application. Mr. Edward H. Green for petitioner. Mr. William D. Whitney for respondent. Reported below: 72 F. (2d) 673. No. 110. Johnson, Receiver, et al. v. Kansas City. November 19, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. *618 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. Mr. Frederick H. Wood for petitioners. Mr. Marcy K. Brown, Jr., for respondent. Reported below: 70 F. (2d) 360. No. 463. Jeffers v. Bankers Life Co. November 19, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. James B. Lewright for petitioner. Messrs. R. B. Alber-son, Charles L. Black, and Ireland Graves for respondent. Reported below: 71 F. (2d) 603. No. 466. Firemen’s Insurance Co. v. Follett et al. November 19, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Frederick D. Silber and Herbert W. Hirsh for petitioner. Mr. John A. Brown for respondents. Reported below: 72 F. (2d) 49. No. 476. General Gas & Electric Corp. v. Commissioner of Internal Revenue. November 19, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Donald V. Hunter, Francis J. Sweeney, and C. Edward Paxson for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. Sewdll Key, Joseph M. Jones, and H. Brian Holland for respondent. Reported below: 72 F. (2d) 364. Nos. 497 and 498. Jonesboro Compress Co. v. Mente & Co., Inc. November 19, 1934. Petition for writs of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. S. M. Casey and Shields M. Goodwin for petitioner. Messrs. W. R. Roddy and J. W. House ior respondent. Reported below: 72 F. (2d) 3. OCTOBER TERM, 1934. 619 293 U. S. Decisions Denying Certiorari. No. 506. Minchella v. Michigan. December 3, 1934. Petition for writ of certiorari to the Supreme Court of Michigan, and motion for leave to proceed further in forma pauperis, denied. Mr. Charles Minchella, pro se. No appearance for respondent. Reported below: 268 Mich. 123; 255 N. W. 735. No. 535. Goodman v. Kunkle, Warden. December 3, 1934. 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. John P. Goodman, pro se. No appearance for respondent. Reported below: 72 F. (2d) 334. No. 502. Tolfree v. New York Title & Mortgage Co. et al. ; No. 503. Rees v. Same; No. 504. Jacoby et al. v. Bond & Mortgage Guarantee Co. et al. ; and No. 505. Depen et al. v. Lawyers Title & Guaranty Co. et al. December 3, 1934. Petition for writs of certiorari to the Circuit Court of Appeals for the Second Circuit denied. The Chief Justice took no part in the consideration or decision of this application. Mr. Henry W. Pollock for petitioners. Messrs. Charles E. Hughes, Jr., and Lawrence S. Greenbaum for respondents. Reported below: 72 F. (2d) 702, 420, 705. No. 470. Gardner v. United States. December 3, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Marshall B. Woodworth for petitioner. Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith for the United States. Reported below: 71 F. (2d) 63. 620 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. No. 474. Erie Railroad Co. v. Fritsch et al. ; and No. 475. Same v. Landau et al. December 3, 1934. Petition for writs of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Messrs. George S. Hobart and Ralph E. Cooper for petitioner. No appearance for respondents. Reported below: 72 F. (2d) 766. No. 493. Warner v. Commissioner of Internal Revenue. December 3, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Sumner Ford for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. Sewall Key and John MacC. Hudson for respondent. Reported below: 72 F. (2d) 225. No. 492. Oregon-Washington Railroad & Navigation Co. v. Jorgensen. December 3, 1934. Petition for writ of certiorari to the Supreme Court of Washington denied. Mr. Arthur C. Spencer for petitioner. No appearance for respondent. Reported below: 176 Wash. 399; 33 P. (2d) 898; 29 id. 744. No. 494. Threlkeld v. United States. December 3, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Mr. George A. Threlkeld, pro se. Solicitor General Biggs, Assistant Attorney General Blair, and Messrs. Edward T. Burke and H. Brian Holland for the United States. Reported below: 72 F. (2d) 464. No. 500. Standard Oil Company of Colorado v. Standard Oil Co. December 3, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Messrs. George Heber Swerer and OCTOBER TERM, 1934. 621 293 U. S. Decisions Denying Certiorari. Wm. D. Harris for petitioner. Messrs. Henry McAllister and Louis L. Stephens for respondent. Reported below: 72 F. (2d) 524. No. 501. Hartzell v. United States. December 3> 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Carlos W. Goltz for petitioner. Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith for the United States. Reported below: 72 F. (2d) 569. No. 508. Freeman v. United States. December 3, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. H. F. Stambaugh for petitioner. Solicitor General Biggs, As-sistant Attorney General Wideman, and Messrs. Sewall Key and J. P. Jackson for the United States. Reported below: 71 F. (2d) 969. No. 510. Strong v. Rogers, Collector. December 3, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. John W. Davis for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. Sewall Key, Norman D. Keller, and H. Brian Holland for respondent. Reported below: 72 F. (2d) 455. No. 514. O’Connor v. Davitt. December 3, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. James S. Y. Ivins and George E. O’Connor for petitioner. Messrs. Myron Kommel and David L. Podell fof respondent. Reported below: 73 F. (2d) 43. 622 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. No. 525. New York & Cuba Mail Steamship Co. v. American Steamship Owners Mutual Protection & Indemnity Assn., Inc. December 3, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Oscar R. Houston and Leonard J. Matteson for petitioner. Messrs. Cletus Keating and Roger Siddall for respondent. Reported below: 72 F. (2d) 694. No. 553. Collier et al. v. Florida. December 10, 1934. Petition for writ of certiorari to the Supreme Court of Florida, and motion for leave to proceed further in forma pauperis, denied. Mr. W. D. Bell for petitioners. No appearance for respondent. Reported below: 116 Fla. 703; 156 So. 703. No. 511. H. M. Byllesby & Co. v. Otis, Judge. December 10, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Henry L. Jost for petitioner. Mr. Paul R. Stinson for respondent. Reported below: 73 F. (2d) 1002. No. 515. Remington Rand Business Service, Inc. v. Acme Card System Co. December 10, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. Samuel E. Darby, Jr., and Harrison M. Brooks for petitioner. Messrs. J. Kemp Bartlett and Wm. F. Hall for respondent. Reported below: 71 F. (2d) 628. No. 516. Teal Motor Co., Inc. v. Orient Insurance Co., Inc., et al. ; and No. 517. Same v. Atlas Assurance Co., Inc. December 10, 1934. Petition for writs of certiorari to the OCTOBER TERM, 1934. 623 293 U. S. Decisions Denying Certiorari. Supreme Court of the Philippine Islands denied. Mr. Guillermo B. Guevara for petitioner. Mr. Allison D. Gibbs for respondents. No. 518. Austin Organ Co. v. Hawthorne et al. December 10, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Homan W. Walsh for petitioner. Mr. John S. Eggleston for respondents. Reported below: 71 F. (2d) 945. No. 520. Pacific Fire Insurance Co. v. Pennsylvania Sugar Co. December 10, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Messrs. Hiram B. Calkins and Horace Michener Schell for petitioner. Messrs. Charles Myers and Thomas Raeburn White for respondent. Reported below: 72 F. (2d) 958. No. 542. Manhattan Oil Co. et al. v. Mosby. December 10, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Henry L. Jost for petitioners. Messrs. H. M. Longworthy and Byron Spencer for respondent. Reported below: 72 F. (2d) 840. No. 565. Cusick v. Whipp, Warden. December 17, 1934. 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. Michael J. Cusick, pro se. No appearance for respondent. Reported below: 73 F. (2d) 254. No. 523. Massachusetts Bonding & Insurance Co. v. United States Quarry Tile Co. December 17, 1934. 624 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Atlee Pom-erene and Clan Crawford for petitioner. Messrs. Arthur D. Baldwin and John L. Cable for respondent. Reported below: 71 F. (2d) 400. No. 526. Continental Trust Co., Trustee, et al. v. W. R. Bonsal & Co. et al. December 17,1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. Gordon M. Buck, Edward Duffy, Edwin S. Sunderland, Thomas O’G. Fitzgibbon, Edward R. Baird, Jr., Carlyle Barton, Leon T. Seawell, and Theodore S. Garnett for petitioners. Messrs. C. Francis Cocke and T. H. Willcox for respondents. Reported below: 72 F. (2d) 975. No. 529. Frederick v. Mutual Building & Investment Co. et al. December 17, 1934. Petition for writ of certiorari to the Supreme Court of Ohio denied. Mr. Hiram Ralph Burton for petitioner. Mr. John W. Bricker for respondents. Reported below: 128 Ohio St. 474; 191 N. E. 729. No. 530. American Silk Mills, Inc. v. Irving Trust Co. et al., Receivers. December 17, 1934. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Leonard Acker for petitioner. Mr. Basil O’Connor for respondents. Reported below: 72 F. (2d) 288. No. 572. Mitchell v. Washington. See ante, p. 533. No. 577. Thrasher v. Aderhold, Warden. January 7, 1935. Petition for writ of certiorari to the Circuit OCTOBER TERM, 1934. 625 293 U. S. Decisions Denying Certiorari. Court of Appeals for the Fifth Circuit, and motion for leave to proceed further in forma pauperis, denied. Mr. Frank B. Thrasher, pro se. No appearance for respondent. Reported below: 72 F. (2d) 1020. No. 608. Spruill v. Ballard et al. January 7, 1935. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia, and motion for leave to proceed further in forma pauperis, denied. Georgia M. Spruill, pro se. No appearance for respondents. Reported below: 64 App. D. C. 60; 74 F. (2d) 464. No. 609. Spruill v. Supreme Court of the District of Columbia. January 7, 1935. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia, and motion for leave to proceed further in forma pauperis, denied. Georgia M. Spruill, pro se. No appearance for respondent. Reported below: 64 App. D. C. 60; 74 F. (2d) 464. No. 533. Hartford-Empire Co. v. Obear-Nester Glass Co. et al. January 7, 1935. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Thomas G. Haight, Amasa C. Paul, Robson D. Brown, William J. Belknap, and Maurice M. Moore for petitioner. Messrs. John D. Rippey and Lawrence C. Kingsland for respondents. Reported below: 71 F. (2d) 539. No. 536. Marshall Electric Co. v. Pullman, Inc. et al. January 7, 1935. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Thomas Marshall for petitioner. Messrs. Robert S. Blair, George L. Wilkinson, and Delos G. Haynes for respondents. Reported below: 72 F. (2d) 474. 89995°—35--40 626 OCTOBER TERM, 1934. Decisions Denying Certiorari. 293 U. S. No. 540. Cantor v. Cherry, Trustee in Bankruptcy, et al. January 7, 1935. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Jacob Weinstein for petitioner. Mr. Emil F. Gold-haber for respondents. Reported below: 73 F. (2d) 188. No. 539. McDuffie, Ancillary Receiver, v. Wells Fargo Bank & Union Trust Co. January 7, 1935. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Hiram W. Johnson for petitioner. Messrs. Sidney M. Ehrman and Lloyd W. Dinkelspiel for respondent. Reported below: 71 F. (2d) 720. __________ No. 541. Douglas v. Willcuts, Collector of Internal Revenue. January 7, 1935. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Clark R. Fletcher for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Mr. James W. Morris for respondent. Reported below: 73 F. (2d) 130. No. 545. Highway Trailer Co. v. Commissioner of Internal Revenue. January 7, 1935. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Robert Ash for petitioner. Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. Sewall Key and J. P. Jackson for respondent. Reported below: 72 F. (2d) 913. No. 548. Fleetway, Inc. v. Public Service Interstate Transportation Co. January 7, 1935. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Louis B. LeDuc for petitioner. Mr. William H. Speer for respondent. Reported below: 72 F. (2d) 761. OCTOBER TERM, 1934. 627 293 U. S. Petitions for Rehearing. No. 543. Merrill v. United States. January 7,1935. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. James W. Ryan for petitioner. Solicitor General Biggs, Assistant Attorney General Sweeney, and Mr. M. Leo Looney, Jr., for the United States. Reported below: 73 F. (2d) 49. No. 547. Willey, Administrator, et al. v. Hobbs, Wall & Co. January 7, 1935. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. H. W. Hutton for petitioners. Mr. Ira S. Lillick for respondent. Reported below: 71 F. (2d) 891. No. 558. Personal Finance Company of Council Bluffs v. Gilinsky Fruit Co. et al. January 7, 1935. Petition for writ of certiorari to the Supreme Court of Nebraska denied. Mr. David J. Gallert for petitioner. No appearance for respondents. Reported below: 127 Neb. 450; 256 N. W. 511. No. 559. Fidelity & Deposit Co. v. Peoples Bank of Sanford et al. January 7, 1935. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. Isaac C. Wright and A. L. Brooks for petitioner. Messrs. Clawson L. Williams, Kenneth R. Hoyle, and Edwin L. Gavin for respondents. Reported below: 72 F. (2d) 932. PETITIONS FOR REHEARING, FROM OCTOBER 1, 1934, TO AND INCLUDING JANUARY 7, 1935. No. 868 (October Term, 1933). Ohio et al. v. United States et al. Appeal from the District Court of the United States for the Southern District of Ohio. On pe- 628 OCTOBER TERM, 1934. Petitions for Rehearing. 293 U. S. tition for rehearing. October 8, 1934. A rehearing is granted to the appellant Empire Sheet & Tinplate Company as respects only so much of the decree of the court below and the order of the Interstate Commerce Commission in its docket No. 7036, Empire Steel Corp. v. Bal-, timore & Ohio R. Co. et al., as affects the reduction in the rate by the Ohio Public Utilities Commission between the Cambridge district and Mansfield, Ohio, from $1.76 to • $1.51, and the restoration thereof by the Interstate Commerce Commission to $1.76. See 292 U. S. 498. No. 619 (October Term, 1933). Radio Corporation of America et al. v. Radio Engineering Laboratories, Inc. See ante, p. 522; also, p. 1. No. 709 (October Term, 1933). Eastman Kodak Co. et al. v. Gray. October 8, 1934. Petition for rehearing denied. See 292 U. S. 332. No. 787 (October Term, 1933). Illinois Commerce Commission et al. v. United States et al. October 8, 1934. Petition for rehearing denied. See 292 U. S. 474. No. 995 (October Term, 1933). Simpson et al. v. Stern et al. October 8, 1934. Petition for rehearing denied. See 292 U. S. 649. No. 1016 (October Term, 1933). Glaser et al. v. Commissioner of Internal Revenue. October 8, 1934. Petition for rehearing denied. See 292 U. S. 654. OCTOBER TERM, 1934. 629 293 U. S. Petitions for Rehearing. No. 1029 (October Term, 1933). Tricou v. Helvering, Commissioner of Internal Revenue. October 8, 1934. Petition for rehearing denied. See 292 U. S. 655. No. 1044 (October Term, 1933). Patten v. United States. October 8, 1934. Petition for rehearing denied. See 292 U. S. 645. No. 1045 (October Term, 1933). Allograph Co. v. Western Electric Co., Inc. October 8, 1934. Petition for rehearing denied. See 292 U. S. 656. No. 1078 (October Term, 1933). Long v. Michigan. October 8, 1934. Petition for rehearing denied. See 292 U. S. 647. No. 1083 (October Term, 1933). Illinois ex rel. Cobine v. Ängsten, Chairman. October 8, 1934. Petition for rehearing denied. See 292 U. S. 648. No. 254. Paramount Publix Corp. v. American TriErgon Corp. See ante, p. 528. No. 255. Altoona Publix Theatres, Inc. v. American Tri-Ergon Corp, et al. ; and No. 256. Wilmer & Vincent Corp, et al. v. Same. See ante, p. 528. No. 1083 (October Term, 1933). Illinois ex rel Cobine v. Ängsten, Chairman. November 5, 1934. Petition for rehearing denied. See 292 U. S. 648. 630 OCTOBER TERM, 1934. Petitions for Rehearing. 293 U. S. No. 50. Union Pacific R. Co. v. Helvering, Commissioner of Internal Revenue. November 5, 1934. Petition for rehearing denied. See ante, p. 559. No. 93. Barrymore et al. v. Kemp, Receiver. November 5, 1934. Petition for rehearing denied. See ante, p. 566. No. 94. Barrymore et al. v. Weiler et al. November 5, 1934. Petition for rehearing denied. See ante, p. 566. Nos. 113 and 114. Dort, Administratrix, v. Helvering, Commissioner of Internal Revenue. November 5, 1934. Petition for rehearing denied. See ante, p. 569. No. 116. Wallace et al. v. Seagraves. November 5, 1934. Petition for rehearing denied. See ante, p. 569. No. 160. Beemsterboer v. Illinois ex rel. McDonough, County Treasurer. November 5, 1934. Petition for rehearing denied. See ante, p. 575. No. 182. Aetna Life Insurance Co. v. Braukman. November 5, 1934. Petition for rehearing denied. See ante, p. 578. No. 203. Texas & New Orleans R. Co. et al. v. Webster et al. November 5, 1934. Petition for rehearing denied. See ante, p. 580. OCTOBER TERM, 1934. 631 293 U. S. Petitions for Rehearing. No. 220. Witherbee et al. v. Commissioner of Internal Revenue. November 5, 1934. Petition for rehearing denied. See ante, p. 582. No. 263. Lesser v. New York. November 5, 1934. Petition for rehearing denied. See ante, p. 555. No. 285. Wiren v. Shubert Theatre Corp, et al. November 5, 1934. Petition for rehearing denied. See ante, p. 591. No. 321. Gilliam et al., Receivers, v. United States. November 5, 1934. Petition for rehearing denied. See ante, p. 587. No. 409. Robison v. First National Pictures, Inc. et al. November 5, 1934. 'Petition for rehearing denied. See ante, p. 609. No. 459. Handy, Receiver, v. Oklahoma ex rel. King, Attorney General. November 5, 1934. Petition for rehearing denied. See ante, p. 610. No. 191. Darby v. Montgomery County National Bank. November 12, 1934. Petition for rehearing denied. See ante, p. 579. No. 366. Mississippi Valley Trust Co. et al. v. Commissioner of Internal Revenue. November 12, 1934. Petition for rehearing denied. See ante, p. 604. 632 OCTOBER TERM, 1934. Petitions for Rehearing. 293 U. S. No. 369. Miller et al. v. Pyrites Co., Inc. et al.; and No. 370. Merrell et al. v. Same. November 19, 1934. Petition for rehearing denied. See ante, p. 604. No. 9. Rowley, Treasurer, et al. v. Chicago & Northwestern Ry. Co. December 3,1934. Petition for rehearing denied. See ante, p. 102. No. 11. McCandless, Receiver, v. Furlaud et al. December 3, 1934. Petition for rehearing denied. See ante, p. 67. No. 32. Brotherhood of Locomotive Firemen and Enginemen et al. v. Pinkston. December 3, 1934. Petition for rehearing denied. See ante, p. 96. No. 303. Gass v. Wetmore et al. December 3, 1934. Petition for rehearing denied. See ante, p. 556. No. 397. Maxfield v. Canadian Pacific Ry. Co. December 3, 1934. Petition for rehearing denied. See ante, p. 610. No. 401. Sabine Towing Co., Inc. et al v. Brennan, Administratrix, et al. December 3, 1934. Petition for rehearing denied. See ante, p. 611. No. 62. Wetzel v. Fulton, Superintendent of Banks. December 10, 1934. Petition for rehearing denied. See ante, p. 531. OCTOBER TERM, 1934. 633 293 U. S. Cases Disposed of Without Consideration by the Court. No. 356. Vinton Petroleum Co. v. Commissioner of Internal Revenue. December 17, 1934. Petition for rehearing denied. See ante, p. 601. No. 55. Hamilton et al. v. Regents of the University of California et al. January 7, 1935. Petition for rehearing denied. See ante, p. 245. No. 60. Indiana Farmer’s Guide Publishing Co. v. Prairie Farmer Publishing Co. et al. January 7, 1935. Petition for rehearing denied. See ante, p. 268. No. 520. Pacific Fire Insurance Co. v. Pennsylvania Sugar Co. January 7, 1935. Petition for rehearing denied. See ante, p. 623. CASES DISPOSED OF WITHOUT CONSIDERATION BY THE COURT, FROM OCTOBER 1, 1934, TO AND INCLUDING JANUARY 7, 1935. No. 158. Norphlet School District No. 50 v. El Dorado School District No. 15 et al. On petition for writ of certiorari to the Supreme Court of Arkansas. October 1, 1934. Dismissed for failure to comply with the Rules. Messrs. Kenneth W. Coulter, Boone T. Coulter, and Edward H. Coulter for petitioner. No appearance for respondent. Reported below: 188 Ark. 875; 69 S. W. (2d) 400. _________ No. 3. United States v. Smith et al. Appeal from the District Court of the United States for the Eastern District of Texas. October 1, 1934. Dismissed and mandate granted on motion of Solicitor General Biggs for the United States. 634 OCTOBER TERM, 1934. Cases Disposed of Without Consideration by the Court. 293 U. S. No. 100. White, Collector of Internal Revenue, v. Atkins. On writ of certiorari to the Circuit Court of Appeals for the First Circuit. November 16, 1934. Dismissed on motion of Solicitor General Biggs for petitioner. Reported below: 69 F; (2d) 960. No. 527. Florida ex rel. Vetter v. Knott, State Treasurer. Appeal from the Supreme Court of Florida. November 19, 1934. Dismissed, per stipulation, on motion of Mr. Robert J. Boone for appellant. Reported below: 114 Fla. 95; 153 So. 606. INDEX ACCOUNTING. See Judgments, 2. ADMINISTRATION OF ESTATES. See War Risk Insurance, 2-3. ADMINISTRATIVE CONSTRUCTION See Statutes, 7-10. ADMINISTRATIVE REMEDIES. See Constitutional Law, V, (A), 2; Statutes, 22. ADMIRALTY. 1. Jurisdiction. Ship Mortgage Act. Jurisdiction in admiralty of suit to foreclose mortgage on ship; validity and construction of Ship Mortgage Act; preferred mortgages; effect of application of borrowed money to non-maritime use. Detroit Trust Co. v. The Thomas Barium, 21. 2. Seamen. Personal Injuries. Master of vessel as “ seaman ” within § 33 of Merchant Marine Act, giving remedy for death or injuries suffered in course of employment. Warner v. Goltra, 155. 3. Contract of Affreightment. Damage to Cargo. Liability of carrier for failure to care for perishable cargo; Harter Act, § 3, held inapplicable; burden was on carrier to show what part of damage was due to excepted peril. Schnell v. The Vallescura, 296. ADVERSE CLAIMANTS. See Bankruptcy, 1-2. ADVERTISING. See Antitrust Acts; Constitutional Law, V, (C), 2. AFFILIATED COMPANIES. See Taxation, II, 6, 11, 14. AFFREIGHTMENT CONTRACT. See Admiralty, 3. AGENTS. See Bills and Notes, 4. AMENDMENT. See Statutes, 21. AMORTIZATION. See Taxation, II, 9-11. AMOUNT IN CONTROVERSY. See Jurisdiction, IV, 1. ANCILLARY RECEIVERS. See Receivers, 2. 635 636 INDEX. ANTITRUST ACTS. Combination in Restraint of Trade. Publication of farm journals; territorial extent of restraint. Indiana Farmer’s Guide Co. v. Prairie Farmer Co., 268. ARBITRATION. U. S. Arbitration Act. Stay. Federal court may grant stay though by terms of contract arbitration enforceable only in state courts. Shanferoke Coal Corp. v. Westchester Corp., 449. ARREST. See Constitutional Law, I, 1. ASSESSMENT. See Taxation, II, 5, 16. ASSIGNMENTS OF ERROR. See Jurisdiction, III, 2. ASSUMPSIT. See Bankruptcy, 4. ATTORNEYS. See Bankruptcy, 2; Constitutional Law, I, 2. BANKRUPTCY. 1. Jurisdiction. Consent. Suits by trustee against adverse claimants; power of Congress; consent of defendants; suits to recover property. Schumacher v. Beeler, 367. 2. Id. State Courts. Bankruptcy court may compel turnover of sums awarded by state court to receiver and attorney after filing of petition in bankruptcy against corporation; receiver and attorney were not “ adverse ” claimants and were amenable to summary proceeding. Taylor v. Sternberg, 470. 3. Provable Debts. Independent Express Contract. Stipulated damages for breach of lease. Irving Trust Co. v. A. W. Perry, Inc., 307; Irving Trust Co. v. Bowditch, 311. 4. Id. “ Fixed liability as evidenced by an instrument in writing implied assumpsit. Davis v. Aetna Acceptance Co., 328. 5. Discharge. Excepted Liabilities. Discharge in bankruptcy as defense to action in trover for technical conversion of automobile by dealer. Id. 6. Id. Construction of provisions excepting from discharge “ liabilities for willful and malicious injuries to property ” and “ liabilities created by fraud or misappropriation while acting in a fiduciary capacity.” Id. BILLS AND NOTES. See Bonds, 1-2. 1. Endorsement. Effect of forged signature. United States v. Guaranty Trust Co., 340. INDEX. 637 BILLS AND NOTES.—Continued. 2. Id. Effect of guarantee of prior endorsements. Id. 3. Rights of Transferees. Right of holder as against drawer to enforce payment and retain proceeds of U. S. Government check sent to payee resident in Yugoslavia and transferred there by forged endorsement. Id. 4. Id. Collection of government check through agency of Reserve Bank did not imply consent that Government may demand restitution irrespective of its obligation to make payment. Id. BILLS OF LADING. See Admiralty, 3. BOARD OF TAX APPEALS. See Jurisdiction, II, 3, 18; III, 6; Taxation, II, 5. BOILER INSPECTION ACT. See Interstate Commerce Acts. BONA FIDE HOLDER. See Bills and Notes, 1-4; Bonds. BONDS. See Taxation, II, 9-11. 1. Negotiability. Reference in bond to other instrument as affecting negotiability. Marine Nat. Bank v. Kalt-Zimmers Mfg. Co., 357. 2. Defect of Title. Rights of pledgee of bonds having notice of facts putting him upon inquiry. Id. BRIAND-KELLOGG PEACE PACT. See Treaties. BRIEFS. See Jurisdiction, II, 14. BROTHERHOODS. See Interstate Commerce Acts. BURDEN OF PROOF. See Constitutional Law, V, (C), 1; Evidence, 1; Taxation, II, 5,14. CALIFORNIA. Requirements of Motor Vehicle Fuel Statute as applicable to federal court receiver. See Gillis v. California, 62. Compulsory Military Training at State University. See Hamilton v. Regents, 245. CARGO. See Admiralty, 3; Damages, 1. CARRIERS. See Admiralty, 3; Interstate Commerce Acts. CERTIFICATE. See Jurisdiction, II, 6-8. 638 INDEX. CERTIORARI. See Jurisdiction, II, 4—5. CHARITABLE CONTRIBUTIONS. See Taxation, II, 7-8. CHECKS. See Bills and Notes, 1-4. CIRCUIT COURTS OF APPEALS. See Jurisdiction, III, 1-6; Taxation, II, 5. CITIZENS. See Constitutional Law, V, (D), 1-2. CLASSIFICATION. See Constitutional Law, V, (C), 1-5. COLLECTIONS. See Bills and Notes, 3-4. COMBINATIONS. See Antitrust Acts. COMMISSIONS. See Taxation, II, &-10. COMMON LAW. See Constitutional Law, I, 2; Habeas Corpus, 1. 1. Rule as to Damages. Increase by court of damages awarded by jury- See Dimick v. Schiedt, 474. 2. State Statute Declaratory of Common Law. Construction by state court binding on federal court. Marine Nat. Bank v. Kalt-Zimmers Mfg. Co., 357. COMMUNITY CHESTS. See Taxation, II, 8. COMPLAINT. See Constitutional Law, V, (C), 2; Injunction, 3. CONFLICT OF LAWS. See Contracts, 2. Transfer of Chattels. Validity. What law governs. United States n. Guaranty Trust Co., 340. CONGRESS. See Constitutional Law, I, 1-3. CONGRESSMEN. See Constitutional Law, I, 1-2. CONSCIENTIOUS OBJECTORS. See Constitutional Law, V, (B),5; V, (D),2. CONSTITUTIONAL LAW. See Negotiable Instruments. I. In General, p. 639. II. Commerce Clause, p. 639. III. Contract Clause, p. 640. IV. Seventh Amendment, p. 640. V. Fourteenth Amendment. (A) In General, p. 640. (B) Due Process Clause, p. 640. (C) Equal Protection Clause, p. 641. (D) Privileges and Immunities Clause, p. 641. INDEX. 639 CONSTITUTIONAL LAW.—Continued. I. In General. 1. Members of Congress. Privilege from Arrest. Immunity does not extend to service of summons. Long v. Ansell, 76. 2. Id. Privilege of member distinguished from common law immunity of witnesses, suitors and attorneys attending court. Id. 3. Delegation of Legislative Power. President. Section 9 (c) of National Industrial Recovery Act invalid. Panama Refining Co. N. Ryan, 388. 4. Id. Necessity of findings by Executive to support order. Id. Cf. United States v. Baltimore & Ohio R. Co., 454. 5. Id. Motives of President as affecting constitutionality of delegation of power. Id. 6. Id. Criminal prosecutions based on executive order. Id. 7. Federal Powers. Taxation. Compensation of state officers operating street railway not immune from federal income tax. Helvering v. Powers, 214. . 8. Judicial Power. Congress may withhold from District Courts power to authorize receivers to transact local business without compliance with local statutes. Gillis v. California, 62. 9. Admiralty Jurisdiction. Jurisdiction in admiralty of suit to foreclose mortgage on ship; validity and construction of Ship Mortgage Act. Detroit Trust Co. n. The Thomas Barium, 21. 10. Bankruptcy Jurisdiction. Power of Congress in respect of suits between trustees and adverse claimants. Schumacher v. Beeler, 367. II. Commerce Clause. 1. Federal Powers. Delegation to President of power to forbid interstate transportation of petroleum produced in excess of amounts permitted by state authority, held invalid. Panama Refining Co. v. Ryan, 388. 2. Interstate Commerce. Business of publishing and circulating farm journals involved interstate commerce. Indiana Farmer's Guide Co. v. Prairie Farmer Co., 268. 3. State Taxation. Corporations. Non-discriminatory property tax on intangible property having situs in State valid, though property used in interstate commerce and though owner without real or tangible property in State. Virginia v. Imperial Coal Sales Co., 15. 640 INDEX. CONSTITUTIONAL LAW.—Continued. III. Contract Clause. 1. In General. Where the contract clause is invoked, this Court must determine for itself the nature and effect of the alleged agreement and whether this has been impaired. U. S. Mortgage Co. v. Matthews, 232. 2. Impairment. Mortgage agreement allowing remedy provided by designated statutes “ or any amendments or additions thereto ” embraced future amendments, including one suspending summary remedy to holders of less than 25% of mortgage debt, and was not impaired thereby. Id. IV. Seventh Amendment. Jury Trial. Order of new trial unless defendant agree to increase of damages void, though defendant consent. Dimick v. Schiedt, 474. V. Fourteenth Amendment. (A) In General. 1. Scope. Fourteenth Amendment does not protect business from hazards of competition. Hegemon Farms Corp. v. Baldwin, 163. 2. Attacking Statute. Complainant must exhaust administrative remedy. Id. 3. Id. Validity of state law dependent on factual situation should not be determined on bill, without evidence and findings. Borden’s Co. v. Baldwin, 194. 4. State Taxation. Situs. Tangible personal property of nonresident. City Bank Co. v. Schnader, 112. (B) Due Process Clause. 1. Property Tax. Intangible property having situs in State taxable, though owner without real estate or tangible property in State. Virginia v. Imperial Coal Sales Co., 15. 2. Inheritance Tax. Tangible personal property subject to inheritance tax only in State where it has situs, regardless of domicile of owner. City Bank Co. v. Schnader, 112. 3. Id. Paintings loaned by owner domiciled in one State for exhibition in another, subject merely to right at any time to order their return, held to have acquired situs in latter State and there subject to inheritance tax. Id. INDEX. 641 CONSTITUTIONAL LAW.—Continued. 4. Price Regulation. Minimum purchasing and selling prices fixed for dealers by orders under New York Milk Control Law held not shown to be arbitrary by facts alleged here, even though complaining dealer operates at loss. Hegeman Farms Corp. v. Baldwin, 163. 5. Liberty. Military Training. Requirement that students at state university take course in military training, though they have religious and conscientious objections, sustained. Hamilton v. Regents, 245. 6. Remedies. Limitations. Application of state workmen’s compensation act amendment limiting to three years time within which readjustment of compensation could be had, to one who sustained compensable injury while preexisting statute (containing no such limitation) was in effect, valid. Mattson v. Department of Labor, 157. (C) Equal Protection Clause. 1. Classification Generally. Presumption of facts sustaining classification; burden of proving classification arbitrary. Borden’s Co. n. Baldwin, 194. 2. Id. Sufficiency of bill challenging validity of provision of New York Milk Control Law establishing discriminatory price differential in favor of dealers not having “ well advertised trade name.” Id. 3. Taxation. Railroads. Valuation of railroad property in State for taxation, computed by apportionment of system value on mileage basis and tested by other criteria, held not shown to be arbitrary or excessive. Rowley v. Chicago & N. W. Ry. Co., 102. 4. Id. Claim of discrimination not supported by overvaluation by state tax officials resulting from error of judgment. Id. 5. Special Legislation. Maryland Mortgage Law amendment, suspending summary remedy as to holders of less than 25% of mortgage debt, valid. U. S. Mortgage Co. v. Matthews, 232. (D) Privileges and Immunities. 1. In General. Privileges and immunities protected by Fourteenth Amendment are those belonging to citizens of the United States as distinguished from citizens of the States. Hamilton v. Regents, 245. 2. Privileges Protected. Denial to citizen of privilege of attending state university unless he take military training, as to which he has religious and moral scruples, does not violate privileges and immunities clause. Id. 89995°—35----41 642 INDEX. CONTRACTS. See Arbitration; Bankruptcy, 3-4; Constitutional Law, III, 1-2; Insurance, 1-2; Negotiable Instruments. 1. Agreements for arbitration. See Shanjeroke Coal Corp. v. Westchester Corp., 449. 2. Construction. What law governs. See Mutual Life Ins. Co. v. Johnson, 335. CONVERSION. See Bankruptcy, 5. CORPORATIONS. See Constitutional Law, II, 3; Criminal Law; Taxation, II, 4. COURTS. See Arbitration; Bankruptcy, 2; Common Law, 1-2; Constitutional Law, 1,1-2; III, 1; Jurisdiction. CRIMINAL LAW. See Constitutional Law, I, 6; Habeas Corpus, 1-5; Indictment. Attempt to Defeat Tax. Officer of corporation liable for making false return, though under no duty to make return. United States v. Troy, 58. DAMAGES. See Admiralty, 3; Bankruptcy, 3. 1. Damages to Cargo. See Schnell v. The Vallescura, 296. 2. Stipulated Damages. See Irving Trust Co. v. A. W. Perry, Inc., 307. 3. Increase by Court of damages awarded by jury. See Dimick v. Schiedt, 474. DEATH. See Admiralty, 2. DECLARATORY STATUTE. Construction by state court as binding on federal court. Marine Nat. Bank v. Kalt-Zimmers Co., 357. DELEGATION OF LEGISLATIVE POWER. See Constitutional Law, I, 3-6; II, 1. DEPLETION. See Taxation, II, 12-13. DESCENT AND DISTRIBUTION. See War Risk Insurance, 2-3. DIRECTED VERDICT. See United States v. Spaulding, 498. DISABILITY. See Evidence, 4; Insurance, 1; War Risk Insurance, 1. DISCHARGE. See Bankruptcy, 5-6. INDEX. 643 DISCRIMINATION. See Constitutional Law, V, (C), 1-5. DISMISSAL. When Error. Dismissal of bill attacking discriminatory price differential of New York Milk Control Law held error. Borden’s Co. v. Baldwin, 194. DISTRICT OF COLUMBIA. Effect in District of Columbia of forged endorsement of negotiable instrument. See United States v. Guaranty Trust Co., 340. DIVERSITY OF CITIZENSHIP. See Jurisdiction, IV, 2-3. DOMICILE. See Constitutional Law, II, 3; V, (A), 4; V, (B), 1-3. DUE PROCESS. See Constitutional Law, V, (B), 1-6. EJUSDEM GENERIS. See Statutes, 11. EMPLOYEES. See Admiralty, 2; Interstate Commerce Acts. EMPLOYERS’ LIABILITY ACTS. See Admiralty, 2. ENDORSEMENTS. See Bills and Notes, 1-3; District of Columbia. EQUAL PROTECTION. See Constitutional Law, V, (C), 1-5. EQUIPMENT. See Interstate Commerce Acts. EQUITY. See Jurisdiction, I, 3-4. Adequacy of Remedy at Law. Fraud in application for insurance was defense available in action at law, and order under Jud. Code, § 274b, directing trial of that issue in equity was error. Enelow v. New York Life Ins. Co., 379; Adamos v. New York Life Ins. Co., 386. EVIDENCE. See Constitutional Law, V, (A), 3; Jurisdiction, I, 8; Taxation, II, 5; Verdict. 1. Burden of Proof. Carrier had burden of showing what part of cargo loss was due to excepted peril. Schnell v. The Vallescura, 296. 2. Value. " Expectancy of remarriage ” and its effect upon value of pension were capable of actuarial measurement. Brotherhood of Firemen v. Pinkston, 96. 3. Id. Evidence as to the value* of a railway system. Rowley v. Chicago & N. W. Ry. Co., 102. 644 INDEX. EVIDENCE.—Continued. 4. Physical Condition. Sufficiency of evidence of total permanent disability; opinion evidence; weight of medical testimony. United States v. Spaulding, 498. 5. Sufficiency to overcome presumption of validity of patent. Radio Corporation v. Radio Engineering Laboratories, 1. EXECUTIVE ORDERS. See Panama Refining Co. v. Ryan, 388. EXECUTORS AND ADMINISTRATORS. See War Risk Insurance, 2-3. EXPECTANCIES. See Evidence, 2. EXPERT WITNESSES. See Evidence, 4. FARM PAPERS. See Antitrust Acts; Constitutional Law, II, 2. FEDERAL QUESTION. See Jurisdiction, II, 11-15. FEDERAL RESERVE BANKS. See Bills and Notes, 4. FIDUCIARIES. See Bankruptcy, 6. FINAL JUDGMENT. See Jurisdiction, II, 18; III, 8. FINDINGS. See Constitutional Law, I, 4; V, (A), 3; Injunction, 3; Interstate Commerce Acts; Jurisdiction, I, 10; II, 3. FORECLOSURE. See Admiralty, 1. FOREIGN CORPORATIONS. See Taxation, II, 4. FORGERY. See Bills and Notes, 1-3; District of Columbia. FRAUD. See Bankruptcy, 6. As equitable defense available in action at law. Enelow v. New York Life Ins. Co., 379; Adamos v. New York Life Ins. Co., 386. GOVERNMENT CHECK. See Bills and Notes, 3-4. GUARANTY. See Bills and Notes, 2. HABEAS CORPUS. 1. In General. Meaning of term habeas corpus and propriety of use of writ, in federal courts‘determined by reference to common law and decisions of this Court. McNally v. Hill, 131. INDEX. 645 HABEAS CORPUS.—Continued. 2. Scope of Inquiry. Lawfulness of Detention. Where detention of petitioner under sentence on one count of indictment is lawful, habeas corpus can not be used to test validity of sentence on another. Id. 3. Id. Writ may not be used to test validity of sentence which petitioner has not begun to serve. Id. 4. Id. Writ may not be used to secure judicial decision of question the answer to which, even if favorable to the prisoner, would not result in his immediate release. Id. 5. Review. Questions which do not concern lawfulness of detention not reviewable. Id. HARTER ACT. See Admiralty, 3. “ HOT OIL ” CASES. See Panama Refining Co. v. Ryan, 388. IMMUNITY. See Constitutional Law, I, 1-2, 7. INCOME TAX. See Constitutional Law, I, 7; Taxation, II, 2-14. INCOMPETENTS. See Insurance, 1. INDICTMENT. See Habeas Corpus, 2. Sufficiency of indictment for wilful attempt to defeat tax under Revenue Act of 1928. United States v. Troy, 58. INFRINGEMENT. See Judgments, 2; Patents for Inventions, 1-3. INHERITANCE TAX. See Constitutional Law, V, (B), 2-3; Taxation, III, 2. INJUNCTION. See Jurisdiction, I, 4; III, 3-5; IV, 4-5. 1. Restraining enforcement of unconstitutional statute. Panama Refining Co. v. Ryan, 388. 2. Order granting or denying stay of law action to await deter- mination of defense in equity was an injunction within Jud. Code, § 129, permitting appeal. Enelow v. New York Life Ins. Co., 379; Adamos v. New York Life Ins. Co., 386. See also, Shanferoke Coal Corp. v. Westchester Corp., 449. 1 3. Proceedings. Sufficiency of bill to restrain enforcement of discriminatory price differential of New York Milk Control Law; ./ hearing; findings of facts and conclusions of law. Borden’s Co. v. Baldwin, 194. INSANITY. See Insurance, 1. 646 INDEX. INSURANCE. See Evidence, 2, 4; War Risk Insurance, 1-3. 1. Contract. Construction. Requirements as to Notice. Waiver of premiums during disability; effect of failure to give notice due to physical and mental incapacity. Mutual Life Ins. Co. v. Johnson, 335. 2. Actions. Defenses. Fraud in application as defense available in action at law. Endow v. New York Life Ins. Co., 379; Adamos v. New York Life Ins. Co., 386. INTANGIBLE PROPERTY. See Constitutional Law, V, (B), 1; Taxation, III, 1. INTEREST. See Taxation, II, 4. INTERLOCUTORY DECREES. See Judgments, 2. INTERNAL REVENUE. See Criminal Law; Taxation, II, 1-16. INTERNATIONAL LAW. See Bills and Notes, 3; Treaties. INTERSTATE COMMERCE. See Constitutional Law, II, 1-3; Interstate Commerce Acts. What Constitutes. Business of publishing and circulating farm journals. Indiana Farmer’s Guide Co. v. Prairie Farmer Co., 268. INTERSTATE COMMERCE ACTS. Authority of Commission. Orders. Findings. Authority under Boiler Inspection Act to require power reverse gear on locomotives; exercise of authority upon complaint of brotherhoods representing employees; necessity of finding that device is required to remove “ unnecessary peril to life or limb.” United States v. Baltimore & Ohio R. Co., 454. INTERSTATE COMMERCE COMMISSION. See Interstate Commerce Acts. INVENTIONS. See Patents for Inventions. JOURNALS. See Antitrust Acts; Constitutional Law, II, 2. JUDGMENTS. 1. Conclusiveness. Stranger to record. Radio Corporation v. Radio Engineering Laboratories, 1. 2. Interlocutory Decrees. Decree in infringement suit granting injunction and appointing master to take and state an account of profits and report to the court, with provisions for exceptions to report, was interlocutory. George v. Victor Talking Machine Co., 378. INDEX. 647 JUDICIAL NOTICE. 1. Judicial notice of facts affecting validity of statute. Borden’s Co. v. Baldwin, 194. 2. Judicial notice of long-established voluntary cooperation between federal and state authorities in respect of military training at land grant college. Hamilton n. Regents, 245. JUDICIARY. See Constitutional Law, I, 8-10; Jurisdiction. JURISDICTION. See Admiralty, 1; Arbitration; Bankruptcy, 1-2; Constitutional Law, I, 8-10; Habeas Corpus; Injunction, 1-3; Limitations; Parties; Taxation. I. In General, p. 648. II. Jurisdiction of this Court, p. 648. III. Jurisdiction of Circuit Courts of Appeals, p. 649. IV. Jurisdiction of District Courts, p. 650. References to particular subjects under this title: Admiralty, I, 9; IV, 6. Amount in Controversy, IV, 1. Appeals, III, 1-4. Bankruptcy, IV, 7. Board of Tax Appeals, II, 3, 18; III, 6. Certificate, II, 6-8. Certiorari, II, 4r-5. Circuit Courts of Appeals, III, 1-6; IV, 8. District Courts, IV, 1-8. Diversity of Citizenship, IV, 2. Equity, I, 3-4. Federal Question, II, 9-17. Final Judgment, II, 18; III, 8. Findings, 1,10; II, 3. Injunction, I, 4; III, 3-4; IV, 3-5. Interlocutory Decree, IV, 8. Local Questions, I, 5-7; II, 17. Moot Questions, I, 1. Questions Certified, II, 6-8. Receivers, IV, 2-3. Record, II, 12-14. Rehearing, II, 12. Remand, III, 6. Rules of Decision, I, 5. Scope of Review, I, 8; II, 1-5. State Courts, II, 0-17. State Statutes, I, 4, 6-7; II, 16-17. Stay, III, 3-5; IV, 4. 648 INDEX. JURISDICTION.—Continued. I. In General. 1. Moot Questions. See Panama Refining Co. v. Ryan, 388. 2. Consent. Lack of federal jurisdiction can not be waived or overcome by agreement of the parties. Mitchell v. Maurer, 237. 3. Equity. Adequacy of remedy at law. Enelow v. New York Life Ins. Co., 379. 4. Injunction. State statute; sufficiency of bill. Borden’s Co. v. Baldwin, 194. 5. Rules of Decision. See Mutual Life Ins. Co. v. Johnson, 335. 6. Id. State Statutes. Construction by state court governs though statute declaratory of common law. Marine Bank v. Kalt-Zimmers Co., 357. 7. Id. Construction of statute by state court applicable to interests created between enactment and decision. Id. 8. Scope of Review. Where, at close of evidence in action tried without jury both parties move for judgment, whether evidence was sufficient to warrant judgment for plaintiff was reviewable question of law. McLaughlin v. Pacific Lumber Co., 351. 9. As to jurisdiction in admiralty of suit to foreclose mortgage on ship, see Detroit Trust Co. v. The Thomas Barium, 21. 10. Necessity of findings by Executive to support order. Panama Refining Co. v. Ryan, 388. II. Jurisdiction of this Court. 1. Scope of Review. In general. See Indiana Farmer’s Guide Co. v. Prairie Farmer Co. 268; Old Mission Cement Co. v. Helvering, 289; McLaughlin v. Pacific Lumber Co., 351. 2. Id. Court will not search record to sustain judgment when ground upon which it was based proves untenable and respondent suggests no other. Indiana Farmer’s Guide Co. v. Prairie Farmer Co., 268. 3. Id. Review of decisions of Board of Tax Appeals limited to questions of law raised by findings or failure to make findings required by statute. Old Mission Cement Co. v. Helvering, 289. 4. Id. Certiorari. Point not considered below or in petition or brief in opposition, not reviewable. Zellerbach Paper Co. v. Helvering, 172. 5. Id. Court need not consider question not raised by petition for writ. Helvering v. Taylor, 507. INDEX. 649 JURISDICTION.—Continued. 6. Certificate. Requirements. Questions certified must be questions of law, distinct and definite. Pfiueger v. Sherman, 55. 7. Id. Court need not answer questions of objectionable generality. Id. 8. Id. Court need not answer question where decision requires review of proceedings, facts and circumstances. Id. 9. Review of Decisions of State Courts. Federal Question. Judgment avoiding state tax exclusively on federal ground reviewable here. Virginia v. Imperial Coal Sales Co., 15. 10. Id. State court decision refusing to enjoin proceedings under statute alleged to be unconstitutional does not present substantial federal question where outcome of proceedings and its effect on appellant’s constitutional rights are matters of conjecture. Abrams v. Van Schaick, 188. 11. Federal Question. Appeal will not be dismissed for want of substantial federal question unless federal questions presented are clearly not debatable and utterly lacking in merit. Hamilton v. Regents, 245. 12. Id. Record must show affirmatively that federal question was necessarily decided by state court. Lynch v. New York, 52. 13. Id. That decision of state court rested on federal question can not be based on conjecture. Id. 14. Id. Jurisdiction can not be sustained by reference to briefs and extrinsic statements. Id. 15. Id. Where decision without opinion by highest state court and its remittitur leave in doubt what disposition it made of federal question, application should be made for amendment if permitted by local practice. Id. 16. Id. State Statute. Order of Regents of University of California making military instruction compulsory was a statute of the State within the meaning of Jud. Code, § 237 (a). Hamilton v. Regents, 245. 17. Id. Construction of state statutes in advance of decision by state court. Rowley v. Chicago & N. W. Ry., 102. 18. Rehearing. Decisions of Board of Tax Appeals held final after 30 days from issuance of mandate here upon affirmance. Helvering v. Northern Coal Co., 191. III. Jurisdiction of Circuit Courts of Appeals. 1. Appeals. Order of District Court dismissing cross-action of one defendant and remanding case to state court was appealable. Waco v. U. S. Fidelity & Guaranty Co., 140. 650 INDEX. JURISDICTION.—Continued. 2. Id. Where court on appeal properly before it determines that assignments of error have been abandoned, decree may be affirmed. E. R. Squibb & Sons v. Mallinckrodt Chemical Works, 190. 3. Injunction. Stay. Decree staying action at law pending determination of equitable defense on equity side, held appealable. Endow v. New York Life Ins. Co., 379; Adamos v. New York Life Ins. Co., 386. 4. Id. District Court’s denial of stay in action on contract pending arbitration pursuant to terms of contract, held appealable. Shanferoke Coal Corp. v. Westchester Corp., 449. 5. Id. That under terms of contract federal court could not enter decree for specific performance of arbitration was immaterial. Id. 6. Remand. To Board of Tax Appeals. See Helvering x. Taylor, 507. 7. Interlocutory Decree. Circuit Court of Appeals without jurisdiction of appeal taken out of time. George v. Victor Co., 377. 8. Id. Decree in infringement suit granting injunction and appointing master to take and state an account of profits and report to the court, with provisions for exceptions to report, was interlocutory and not final judgment. Id. IV. Jurisdiction of District Courts. 1. Amount in Controversy. Suit to protect widow’s right to future payments from pension fund; effect of condition that on remarriage payments cease. Brotherhood of Firemen v. Pinkston, 96. 2. Diversity of Citizenship. Where corporation and one of its receivers appointed by state court are citizens of same State, jurisdiction of suit by receivers in federal court of another State seeking ancillary receivership, based on diversity of citizenship, fails, notwithstanding the bill names as sole plaintiff the plaintiff in the original suit and that diversity of citizenship existed between him and the corporation. Mitchell v. Maurer, 237. 3. Id. Ancillary Suit. Suit by primary receivers appointed by state court seeking ancillary receivership in federal court of another State was an independent original bill and can not be sustained when no ground of federal jurisdiction is shown. Id. 4. Actions at Law. Stay. Court may not grant stay under Jud. Code, § 274b, if equitable defense is available in action at law. Endow v. New York Life Ins. Co., 379; Adamos v. New York Life Ins. Co., 386. INDEX. 651 JURISDICTION.—Continued. 5. State Tax Statutes. Injunction. On finding tax invalid because of discrimination in assessment, federal court may not fix base or amount of tax but should leave State free to reassess. Rowley v. Chicago & N. W. Ry. Co., 102. 6. Admiralty. Suit to foreclose mortgage on ships under Ship Mortgage Act. Detroit Trust Co. n. The Thomas Barium, 21. 7. Bankruptcy. Suit by trustee against adverse claimant; consent of defendant; suit to recover property. Schumacher v. Beeler, 367. JURISDICTIONAL AMOUNT. See Jurisdiction, IV, 1. JURY. See Constitutional Law, IV. 1. Testimony of expert witness. See United States v. Spaulding, 498. 2. Common law rules of jury trial; effect of Seventh Amendment; increase by court of damages awarded by jury. See Dimick v. Schiedt, 474. LAND GRANT COLLEGES. See Constitutional Law, V, (B), 5; V, (D), 2; Public Lands; Treaties; War Department. LANDLORD AND TENANT. See Bankruptcy, 3; Taxation, II, 12-13. LEASE. See Bankruptcy, 3; Taxation, II, 12-13. LEGISLATIVE HISTORY. See Statutes, 6. LEGISLATIVE INTENT. See Statutes, 4-5, 8. LIBERTY. See Constitutional Law, V, (B), 5. LIENS. See Admiralty, 1. LIMITATIONS. See Taxation, II, 16. 1. In General. State may impose reasonable conditions on assertion of purely statutory rights. Mattson v. Department of Labor, 151. 2. Barring Remedy. Amendment of workmen’s compensation act of Washington limiting to three years time within which readjustment of compensation could be had, sustained. Id. LIQUIDATED DAMAGES. See Damages, 2. LOCOMOTIVES. See Interstate Commerce Acts. MANDATE. See Jurisdiction, II, 18. 652 INDEX. MARITIME JURISDICTION. See Admiralty, 1; Constitutional Law, I, 9. MARITIME LIENS. See Admiralty, 1. MARYLAND. See Constitutional Law, V, (C), 5. MASTER AND SERVANT. See Admiralty, 2; Interstate Commerce Acts. MASTERS OF VESSELS. See Admiralty, 2. MEDICAL TESTIMONY. See Evidence, 4. MERCHANT MARINE ACT. See Admiralty, 2. MILITARY TRAINING. See Constitutional Law, V, (B), 5; V, (D), 2; Public Lands; Treaties; War Department. MILK CONTROL LAW. See New York Milk Control Law. MISAPPROPRIATION. See Bankruptcy, 6. MOOT QUESTIONS. See Jurisdiction, I, 1. MORRILL ACT. See Public Lands. MORTGAGES. See Admiralty, 1; Constitutional Law, III, 2; V, (C), 5; Trusts. MOTIVE. Unconstitutional delegation of legislative power not validated by motives of President. Panama Refining Co. v. Ryan, 388. NATIONAL INDUSTRIAL RECOVERY ACT. Section 9 (c) unconstitutional. Panama Refining Co. v. Ryan, 388. NEGLIGENCE. See Admiralty, 3. NEGOTIABLE INSTRUMENTS. See Bills and Notes, 1-4; Bonds, 1. Construction of Negotiable Instruments Law by state court binding in federal court. Marine Nat. Bank v. Kalt-Zimmers Mjg. Co., 357. NEWSPAPERS. See Antitrust Acts. NEW TRIAL. See Constitutional Law, IV; Taxation, II, 5. Conditioning allowance of new trial on consent of defendant to increase of damages. See Dimick v. Schiedt, 474. INDEX. 653 NEW YORK MILK CONTROL LAW. 1. Validity of orders fixing minimum purchasing and selling prices for dealers. Hegeman Farms Corp. v. Baldwin, 163. 2. Dismissal of Bill attacking constitutionality of discriminatory price differential, held error. Borden’s Co. v. Baldwin, 194. NONRESIDENTS. See Constitutional Law, V, (A), 4; V, (B), 1-3. NOTICE. See Bonds, 2; Insurance, 1. OIL AND GAS. See Constitutional Law, II, 1; Taxation, II, 12-13. OPINION EVIDENCE. See Evidence, 4. PARI MATERIA. See Statutes, 12. PARTIES. See Bankruptcy, 1-2; Jurisdiction, IV, 2. Capacity to Sue. Objection to capacity of foreign receiver to sue under ancillary appointment made on his ex parte application, held waived where raised for first time on appeal. McCandless v. Furlaud, 67. PATENTS FOR INVENTIONS. See Evidence, 5; Judgments, 2. 1. Validity. De Forest Patents Nos. 1,507,016 and 1,507,017. Radio Corporation v. Radio Engineering Laboratories, 1. 2. Construction. Right of patentee to uses realized after invention. Id. 3. Conclusiveness of Judgment. Decree sustaining patent on evidence of priority not conclusive on stranger, but persuasive as precedent in suit presenting same issue and evidence. Id. PAYMENT. See Bills and Notes, 3-4. PENSIONS. See Evidence, 2. PERIL. Perils of the Sea. Schnell v. The Vallescura, 296. PERSON. See Statutes, 13. PERSONAL INJURIES. See Admiralty, 2. PETROLEUM. See Constitutional Law, II, 1. PHYSICAL CONDITION. See Evidence, 4. PLEADING. See Constitutional Law, V, (C), 2; Jurisdiction, I, 4; V, 2-3. PLEDGE. See Bonds, 2. 654 INDEX. PRESIDENT. Delegation of legislative power to; constitutional limitations. See Panama Refining Co. v. Ryan, 388. PRESUMPTIONS. See Constitutional Law, V, (C), 1; Statutes, 1. Validity of Patent. See Radio Corporation v. Radio Engineering Laboratories, 1. PRICE-FIXING. See Constitutional Law, V, (B), 4. PRIORITY. See Admiralty, 1 ; United States, 2. PRIVILEGE. See Constitutional Law, I, 1-2; V, (D), 1-2. PRIVILEGES AND IMMUNITIES. See Constitutional Law, V, (D), 1-2. PROCEDURE. See Admiralty, 1; Arbitration; Bankruptcy, 1-2; Equity; Injunction, 1-3; Jurisdiction. Dismissal of Bill attacking constitutionality of discriminatory price differential in New York Milk Control Law held error. Borden’s Co. v. Baldwin, 194. PROCESS. See Constitutional Law, I, 1-2. PROVABLE DEBTS. See Bankruptcy, 3-4. PUBLICATIONS. See Antitrust Acts; Constitutional Law, II, 2. PUBLIC LANDS. Land Grants. Conditions. Military instruction in land grant colleges; rights and obligations of States. Hamilton n. Regents, 245. PUBLIC OFFICERS. Immunity of Compensation of state officer from federal income tax. Helvering v. Powers, 214. QUESTIONS CERTIFIED. See Jurisdiction, II, 6-8. RAILROADS. See Constitutional Law, V, (C), 3; Interstate Commerce Acts. Apportionment of system value on mileage basis for state taxation. Rowley v. Chicago & N. W. Ry. Co., 102. RAILWAY EQUIPMENT. See Interstate Commerce Acts. RECEIVERS. See Bankruptcy, 2; Constitutional Law, I, 8; Jurisdiction, IV, 2-3. 1. Suits by Receivers. Mitchell v. Maurer, 237. INDEX. 655 RECEIVERS.—Continued. 2. Id. Legal capacity of ancillary receiver appointed upon ex parte application; objection must be seasonably made. McCandless n. Furlaud, 67. 3. Duties. State Laws. Under Jud. Code, § 65, federal court receiver doing local business must comply with state statute requiring bond to secure payment of state taxes; impossibility of compliance does not relieve. Gillis v. California, 62. RECORD. See Jurisdiction, II, 2, 12. REHEARING. See Jurisdiction, II, 18. RELIGIOUS FREEDOM. See Constitutional Law, V, (B), 5; V, (D), 2. REMEDIES. See Constitutional Law, V, (A), 2; V, (B), 6. REMITTITUR. See Jurisdiction, II, 15. RENT. See Bankruptcy, 3. REORGANIZATION. See Taxation, II, 3. RESERVE BANKS. See Bills and Notes, 4. RESIDENT. See Statutes, 15; Taxation, II, 4. RES JUDICATA. See Judgments, 1; Patents for Inventions, 3. RESTITUTION. See Bills and Notes, 4; United States, 1. RESTRAINT OF TRADE. See Antitrust Acts. REVERSE GEAR. See Interstate Commerce Acts. RULES OF DECISION. See Jurisdiction, I, 5. SAFETY APPLIANCES. See Interstate Commerce Acts. SCHOOLS. See Constitutional Law, V, (B), 5; V, (D), 2. SEAMEN. See Admiralty, 2. SENATORS. See Constitutional Law, I, 1-2. SENTENCE. See Habeas Corpus, 2-3. SERVICE OF PROCESS. Immunity. Member attending session of Senate held not immune from service of summons. Long v. Ansell, 76. SHIP MORTGAGE ACT. See Admiralty, 1. 656 INDEX. SHIPPING. See Admiralty, 1, 3. SIGNATURE. See Bills and Notes, 1. SITUS. See Constitutional Law, V, (A), 4; V, (B), 1-3; Taxation, III, 1-2. SPECIAL MASTERS. See Judgments, 2. SPECIFIC PERFORMANCE. See Jurisdiction, III, 5. STATE COURTS. See Jurisdiction, I, 6-7; II, 9-17. STATES. See United States, 2. Rights and obligations under Morrill (Land Grant) Act. See Hamilton v. Regents, 245. STATUTE OF LIMITATIONS. See Constitutional Law, V, (B), 6; Limitations; Workmen’s Compensation Acts. STATUTES. See Admiralty, 1-3; Bankruptcy, 4, 6; Common Law, 2; Constitutional Law, I, 3; V, (A), 2-3; V, (B), 6; V, (C), 5; Judicial Notice, 1; Jurisdiction, I, 6-7; II, 16-17; Limitations, 1-2. 1. In General. Presumption of existence of factual conditions supporting legislation is rebuttable. Borden's Co. v. Baldwin, 194. 2. Construction of tax statutes. Helvering n. Stockholms En-skilda Bank, 84; Helvering v. Morgan’s, Inc., 121; Helvering v. Bliss, 144; Zellerbach Paper Co. v. Helvering, 172; Helvering v. Twin Bell Oil Syndicate, 312. 3. Construction of identical words in different parts of statute. Id. 4. Legislative Intent. Rule as to construction of tax statutes in favor of taxpayer can not be allowed to defeat obvious legislative intent. Helvering v. Stockholms Enskilda Bank, 84. 5. Id. Contemporary administrative practice and congressional committee reports as evidence. Helvering v. Morgan’s, Inc., 121. 6. Legislative History. As aid to construction. Helvering v. Morgan’s, Inc., 121; Helvering v. Bliss, 144; Warner v. Goltra, 155; Helvering v. Twin Bell Oil Syndicate, 312. 7. Administrative Construction. Effect of. Zellerbach Paper Co. n. Helvering, 172. 8. Id. Reenactment as legislative approval of uniform administrative construction. Helvering v. Bliss, 144; Zellerbach Paper Co. v. Helvering, 172; Herring v. Commissioner, 322. '• ’‘'Civ«*... . INDEX. 657 STATUTES—Continued. 9. Treasury Regulations. Force of Treasury Regulation construing provision of Revenue Act. Old Mission Cement Co. v. Helvering, 289. 10. Id. Can not limit statutory provision or define boundaries of its constitutional application. Helvering v. Powers, 214. 11. Ejusdem Generis. Application of rule. Helvering v. Stockholms Enskilda Bank, 84, 88. 12. Statutes in Pari Materia. See Warner v. Goltra, 155. 13. Particular Words. “Person” in statute forbidding wilfull attempt to defeat tax (Revenue Act of 1928, § 146 b), as including officer of corporation who made false return though under no duty to make return. United States v. Troy, 58. 14. Id. Meaning of “ interest-bearing obligations.” Helvering v. Stockholms Enskilda Bank, 84. 15. Id. United States as “ resident.” Id. 16. Id. Meaning of “ includes.” Helvering v. Morgan’s, Inc., 121. 17. Id. Meaning of “ taxable year.” Id. 18. Id. Master of Vessel as “ seaman.” Warner v. Goltra, 155, 19. Particular Statutes. Validity and construction of Ship Mortgage Act. Detroit Trust Co. n. The Thomas Barium, 21. 20. U. S. Code. Compilers not authorized to amend existing law. Warner v. Golbra, 155. 21. Amendment. Effect on rights existing under prior statute. Mattson n. Department of Labor, 151. 22. Attacking Statute. One complaining of regulations of state board should resist regulations before board or apply to it for modification before bringing suit. Hegeman Farms Corp. v. Baldwin, 163. STAY. See Arbitration; Injunction, 2; Jurisdiction, III, 3-4; IV, 4. STIPULATED DAMAGES. See Bankruptcy, 3. STREET RAILWAYS. Compensation of state officers operating street railway held not immune from federal income tax. Helvering v.Powers, 214. SUBPOENA. See Constitutional Law, I, 1-2. SUCCESSION. See War Risk Insurance, 2-3. SUMMARY PROCEEDINGS. See Bankruptcy, 2. 89995°—35----42 658 INDEX. SUMMONS. See Constitutional Law, I, 1-2. TAXATION. See Constitutional Law, I, 7; II, 3; V, (C), 3; Criminal Law; Jurisdiction, IV, 5; Receivers, 3; United States, 2. I. In General, p. 658. II. Federal Taxation, p. 658. III. State Taxation, p. 659. I. In General. 1. Tax Statutes. Construction. Helvering v. Stockholms En-skilda Bank, 84; Helvering v. Morgan’s, Inc., 121; Helvering v. Bliss, 144; Zellerbach Paper Co. v. Helvering, 172; Helvering v. Twin Bell Oil Syndicate, 312. 2. Immunity of state officers from federal tax; application of rule. Helvering v. Powers, 214. II. Federal Taxation. 1. Revenue Acts Generally. When phrase “ taxable year ” applicable to periods of less than twelve months. Helvering v. Morgan’s Inc., 121. 2. Income Tax. Compensation of state officers operating street railway, taxable under 1926 and 1928 Acts. Helvering v. Powers, 214. 3. Id. Distribution of stock on “ reorganization.” Gregory v. Helvering, 465. 4. Id. Foreign Corporations. Gross Income. Interest received from United States with refund of income taxes was on “ interestbearing obligation ” of " resident,” and includible in gross income under § 217 (a) of 1926 Act. Helvering v. Stockholms Enskilda Bank, 84; British-American Tobacco Co. v. Helvering, 95. 5. Id. Excessive assessment; when taxpayer need not show true amount; new trial before Board of Tax Appeals, when directed by Circuit Court of Appeals. Helvering v. Taylor, 507. 6. Id. Deductions. Year for which corporation filed separate returns for affiliated and unaffiliated periods did not thereby become two taxable years within provision of 1926 Act (§ 206) permitting taxpayer to carry loss forward for two succeeding years. Helvering v. Morgan’s, Inc., 121. 7. Id. Charitable Contributions. Base for computing 15 per cent, deduction allowable for charitable contributions under 1928 Act includes capital net gain, though taxpayer elect to be taxed on capital net gain at reduced rate prescribed by § 101 (a). Helvering v. Bliss, 144. INDEX. 659 TAXATION.—Continued. 8. Deductions. Contribution by corporation to Community Chest as “ ordinary and necessary expense.” Old Mission Cement Co. v. Helvering, 289. 9. Id. Losses and Expenses. Amortized amount of commissions and discount in connection with bond issue. Helvering v. Union Pacific R. Co., 282; Old Mission Cement Co. v. Helvering, 289. 10. Id. Effect of fact that the commissions amortized were allowed prior to 1913. Helvering v. Union Pacific R. Co., 282. 11. Id. Intercompany Transactions. Amortized discount on bonds of corporation held by affiliate not deductible in consolidated returns. Old Mission Cement Co. v. Helvering, 289; Gulf, M.