UNITED STATES REPORTS VOLUME 298 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1935 From March 31 to and Including June 1,1936 (End of the Term) ERNEST KNAEBEL REPORTER UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1936 For sale by the Superintendent of Documents, Washington, D. C. - Price $2.00 (Buckram) 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. STANLEY REED, Solicitor General. CHARLES ELMORE CROPLEY, Clerk. FRANK KEY GREEN, Marshal. 1 1For 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 Page. Abraham Lincoln Life Ins. Co., Hopwood v........ 687 Acker v. United States..................... 426, 692 A. C. Spark Plug Co. v. Motor Improvements, Inc.. 671 Adamowicz v. United States...................... 664 Aeolian-Skinner Organ Co., Shepard Service v.... 681 Ajax Pipe Line Co., Smith v..................... 641 Alabama, Vincent v.............................. 682 Alemite Corp., Rogers v..........................415 Allen v. Cloisters Building Corp............ 660,692 Allen v. Georgian Hotel Corp.................... 673 American Diamond Lines v. Peterson.............. 684 American National Bank, Tennessee Pub. Co. v.... 651 American Veterinary Assn., Boone v.............. 659 Anelich, The Arizona v..................... 110, 692 Anglo-Continentale Treuhand, Henwood v.......... 655 Anraku v. General Electric Co................... 678 Arizona v. California........................... 558 Arizona, The, v. Anelich................... 110, 692 Aron v. Pennsylvania R. Co...................... 658 Ashton v. Cameron County District.......... 513, 648 Associated Press, KVOS, Inc. v................... 650 Atchison, T. & S. F. Ry. Co., Tipton v............ 141 Atlantic Coast Line v. Bethel................... 682 Atlantic Coast Line v. Commissioner......... 656,691 Atlantic Lumber Co. v. Commissioner............. 553 Atlantic Mutual Ins. Co., United States v...... 483 Attorney General, N. C. ex rel., Gorson v.......... 662 Bachman v. Davis............................... 681 Baldwin v. National Savings & Trust Co.......... 670 Baltimore Mail S. S. Co., Madsen v.............. 675 v VI TABLE OF CASES REPORTED. Page. Baltimore & Ohio R. Co. v. United States.........349 Bassick Manufacturing Co. v. R. M. Hollingshead Co........................................... 415 Baxter, McGee v................................ 680 Beadle v. Spencer.............................. 124 Beale v. Snead................................ 685 Beard v. United States........................ 655 Beasley, Cate v................................ 651 Belt v. Zerbst................................. 667 Berman v. McDonnell........................... 660 Bethel, Atlantic Coast Line v.................. 682 Bingaman, Morf v............................ 407, 639 Bingaman, Piper v.............................. 643 Bingaman, U. S. Fidelity & Guaranty Co. v....... 407 Black Gull, The, v. Peterson................... 684 Blume v. United States......................... 691 Board of Equalization, British-American Oil Co. v.. 652 Boone v. American Veterinary Assn.............. 659 Booth Fisheries Corp., Lindh v . \670 Bourdieu v. Pacific Western Oil Co........... 647 Bowers, Gans Steamship Line v.................. 676 Braniff Investment Co., Norton v............... 663 Brimmer v. Union Oil Co........................ 668 British-American Oil Co. v. Board of Equalization. 652 Brooklyn Trust Co. v. Commissioner............. 659 Brown v. South Carolina....................... 639 Bruckner-Mitchell, Inc., Sun Indemnity Co. v..... 677 Brukenfeld v. New York Railways Corp........... 687 Buck, Hillsborough County v.................... 679 Burns Trading Co., Welborn v................... 672 Byllesby (H. M.) & Co. v. Welch................ 686 Cabanero v. Torres.....................<....... 661 California, Arizona v.......................... 558 Californian, The, J. V. Lane & Co. v........... 690 California Packing Corp., Sun-Maid Raisin Growers v.......................................... 668 California State Bar, Kustoff v................ 661 TABLE OF CASES REPORTED. vii Page. Callaghan v. Central Hanover Bank & Trust Co.... 685 Callaghan v. City Bank Farmers Trust Co......... 685 Callaghan v. Marine Midland Trust Co........... 685 Callaghan v. President of the Manhattan Co...... 685 Camden Fire Insurance Co. v. Martin............ 672 Camden Safe Deposit & Trust Co. v. Martin....... 678 Cameron, International Alliance of Theatrical Em- ployees v.................................... 659 Cameron County Water District, Ashton v..... 513,648 Capital Co., Fox v......................... 649, 672 Carden v. North Carolina....................... 682 Carlin (P. J.) Construction Co. v. Heaney....... 637 Carnahan v. Missouri-Kansas-Texas Ry........... 664 Carolina, C. & 0. Ry. v. Commissioner....... 656, 692 Carter v. Carter Coal Co....................... 238 Carter, Helvering v............................ 238 Carter Coal Co., Carter v...................... 238 Cate v. Beasley................................ 651 Central Hanover Bank & Trust Co., Callaghan v.... 685 Central States Life Ins. Co. v. Koplar Co...... 687 Cerro de Pasco Copper Corp. v. United States.... 686 Chalaire, Franklin v........................... 678 Chandler v. Peketz............................. 691 Chase National Bank, Leonard! v................ §71 „ Chesapeake & Ohio Ry. v. Rich.................... 684 Chicago, B. & Q. R. Co., United States v....... 689 Chicago Great Western R. Co. v. Rambo....... 99, 692 Chisholm v. Gilmer............................. 648 Cinema Patents Co. v. Columbia Pictures Corp.... 663 Citizens Passenger Ry. Co. v. Public Service Comm’n....................................... 673 City Bank Farmers Trust Co., Callaghan v........ 685 City National Bank v. Flood.................... 666 Clark, R. C. Tway Coal Co. v................... 238 Cloisters Building Corp., Allen v.......... 660, 692 C. M. Kemp Mfg. Co. v. Hoeltke................. 673 Coe; Keller, Heumann & Thompson Co. v........... 656 VIII TABLE OF CASES REPORTED. Page. Collins v. Streitz............................ 640 Colorado, Wyoming v. . 573 Columbia Pictures Corp., Cinema Patents Co. v.... 663 Commissioner, Atlantic Coast Line v........ 656,691 Commissioner, Brooklyn Trust Co. v............ 659 Commissioner, Carolina, C. & 0. Ry. v...... 656, 692 Commissioner, Dohme v.........i.............. 680 Commissioner, Evans Products Co. v............ 675 Commissioner, Farren v........................ 653 Commissioner, Houbigant, Inc. v................. 669 Commissioner, London Shoe Co. v................ 663 Commissioner, McCarthy Co. v.................. 655 Commissioner, McCrary v....................... 653 Commissioner, Peak v.......................... 666 Commissioner, Robinson v...................... 663 Commissioner, Rudolph Wurlitzer Co. v......... 676 Commissioner, Silk Center Building, Inc. v..... 683 Commissioner, Starr v......................... 680 Commissioner, True v......................... 680 Commissioner, Van Vleck v...................... 656 Commissioner, Washington v.................... 689 Commissioner, Whitney Realty Co. v............ 668 Commissioner, Wurlitzer Grand Piano Co. v...... 676 Commissioner of Corporations, Atlantic Lumber Co. v..................................... 553 Committee on Grievances, Duke v............... 662 Compagnie Generale Transatlantique v. Elting.... 217 Connecticut Fire Ins. Co. v. Oakley Bldg. & L. Co.. 687 Corrick, United States v.................... 435,692 Cossack v. United States............... 654, 678, 691 Courier Publishing Co. v. Police Jury......... 675 Cowan Investment Corp., Wimberly v............ 654 Crady, Provident Life & Accident Ins. Co. v.... 681 Craig v. United States.................... 637, 690 Crenshaw, Harper v............................ 685 Crook v. Wallace.............................. 683 Crown Willamette Paper Co. v. McLaughlin....... 674 TABLE OF CASES REPORTED. IX Page. Culhane, Mechanics Universal Joint Co. v....... 648 Cutten, Wallace v............................. 229 Daffern, Zurich General Accident & L. Ins. Co. v... 667 Dallas v. Gardner............................. 668 Davis, Bachman v.............................. 681 Davis v. Ruzicka............................. 671 De Benque v. United States.................... 681 De Parcq, Liggett & Myers Tobacco Co. v........ 680 Department of Treasury, Miles v............... 640 Dixie Terminal Co. v. United States........... 645 Doherty v. Knowlton........................... 676 Doherty v. Tremblay........................... 676 Dohme v. Commissioner......................... 680 Dorrance v. Martin......................... 678,692 Dow Chemical Co., Williams Bros. Well Treating Corp, v.................................... 690 Driscoll Benevolent Estate v. Shipp........... 686 Duke v. Committee on Grievances.............. 662 Duke Power Co. v. Greenwood County......... 651, 669 Duplate Corp. v. Triplex Safety Glass Co.......448 Du Vail v. United States...................... 667 Elgin, J. & E. Ry., United States v........... 492 Elting, Compagnie Generale Transatlantique v...217 Elting, Hamburg-American Line v................217 Endow v. New York Life Ins. Co................ 680 Ensminger v. Lehigh Valley R. Co.............. 672 Equitable Life Assurance Society v. Salmen..... 664 Equitable Life Ins. Co., Hillsborough County v.679 Esnault-Pelterie, United States v................. 653 Essex Razor Blade Corp. v. Gillette Safety Razor Co. 649 Evans Products Co. v. Commissioner............ 675 Everett Mills v. United States.................691 Ex parte. See name of party. Farren v. Commissioner........................ 653 Fidelity & Deposit Co. v. Pennsylvania R. Co... 661 Fidelity & Deposit Co., Prudence Co. v........ 642 Fidelity & Deposit Co. v. United States....... 665 x TABLE OF CASES REPORTED. Page. Fink v. United States.......................... 686 Fireman’s Mutual Aid Assn. v. Virginia......... 677 Firestone Tire & Rubber Co., U. S. Rubber Co. v.... 679 First National Bank, Gully v................... 650 Flood, City National Bank v.................... 666 Foley v. Wachs................................. 637 Foust v. Munson Steamship Lines................ 649 Fox, Ex parte.................................. 642 Fox v. Capital Co........................... 649, 672 Fox, Wheeling Steel Corp, v.................... 193 Franklin v. Chalaire......................... 678 Freeman v. United States...................... 688 Frey & Horgan Corp. v. Superior Court.......... 684 Frost v. United States....................... 691 Fulton, Old Line Life Ins. Co. v............... 656 Gans Steamship Line v. Bowers.................. 676 Gardner, Dallas v.............................. 668 General Electric Co., Anraku v................... 678 General Electric Co., Pacific Importing Co. v... 678 General Motors Acceptance Corp., McNutt v....... 178 General Motors Corp., Pick Manufacturing Co. v.. 648 Georgian Hotel Corp., Allen v................... 673 Gifford, Ex parte. -........................... 643 Gillette Safety Razor Co., Essex Razor Blade Corp, v..................................... 649 Gilmer, Chisholm v............................. 648 Glenn, R. C. Tway Coal Co. v................... 238 Globe Gazette Printing Co. v. United States..... 682 Gooch v. United States......................... 658 Gorson v. N. C. ex rel. Attorney General....... 662 Granger (James), Inc., Parker v................. 644 Graves, New York ex rel. Rice v................ 683 Graves v. Texas Co............................. 393 Greenwood County, Duke Power Co. v............ 651 Grosscup, Premier-Pabst Sales Co. v............ 226 Guaranty Trust Co. v. Monier................... 670 Gully v. First National Bank................... 650 TABLE OF CASES REPORTED. XI Page. Gully v. Interstate Natural Gas Co............. 688 Gully v. Memphis Natural Gas Co................ 688 Gully, Memphis Natural Gas Co. v............... 688 Hagman, Ex parte.............................. 642 Hale, Moyerman v............................... 671 Hall, Smith v.................................. 652 Hamburg-American Line v. Elting................ 217 Harper v. Crenshaw............................. 685 Hart v. Virginia................................ 34 Hartford Accident & Ind. Co. v. Illinois ex rel. McLaughlin................................... 155 Hartford Accident & Ind. Co. v. Jones.......... 655 Hawkins v. Railroad Credit Corp................ 667 Heaney, P. J. Carlin Construction Co. v........ 637 Helvering v. Carter............................ 238 Helvering v. Illinois Life Ins. Co............. 650 Helvering, Koshland v.......................... 441 Helvering v. Matchette......................... 677 Helvering, Schafer v........................... 650 Hennef ord v. Paramount Pictures Distributing Co.. 665 Henwood v. Anglo-Continentale Treuhand.......... 655 Hill v. U. S. ex rel. Wampler.................. 460 Hillsborough County v. Buck.................... 679 Hillsborough County v. Equitable Life Ins. Co... 679 Hillsborough County v. Keefe................... 679 Hines v. Stein............................. 94, 692 H. M. Byllesby & Co. v. Welch.................. 686 Hocking Glass Co. v. Miller.................... 659 Hockley, Miller v.............................. 657 Hoeltke, C. M. Kemp Mfg. Co. v................. 673 Hollingshead (R. M.) Co., Bassick Mfg. Co. v...... 415 Hopwood v. Abraham Lincoln Life Ins. Co......... 687 Houbigant, Inc. v. Commissioner.................669 Houston v. Iowa Soap Co........................ 657 Idaho, United States v......................... 105 Illinois ex rel. McLaughlin, Hartford Co. v.... 155 Illinois Life Ins. Co., Helvering v............: 650 XII TABLE OF CASES REPORTED. Page. International Alliance of Theatrical Employees v. Cameron...................................... 659 International Business Machines Corp. v. United States........................................ 131 Interstate Natural Gas Co., Gully v............. 688 Iowa Soap Co., Houston v........................ 657 Irving Trust Co. v. United States............... 686 Isbrandtsen-Moller Co. v. United States......... 644 James Granger, Inc., Parker v................... 644 James Manufacturing Co., Smith v. 652 Jenkins, Phillips Petroleum Co. v................. 691 Jobissy v. Murphy............................... 661 Johnson v. United States........................ 688 Jones, Hartford Accident & Ind. Co. v............ 655 Jones v. Securities & Exchange Comm’n............. 1 Jordan Marsh Co., Wolff v....................... 673 Jose Rivera Soler & Co. v. U. S. Firemen’s Ins. Co.. 651 J. T. Knight & Son v. Superior Fire Ins. Co..... 654 J. V. Lane & Co. v. The Californian............. 690 Kansas City Bridge Co. v. State Highway Comm’n.. 661 Kattelman v. Madden............................. 660 Keefe, Hillsborough County v.................... 679 Keller, Heumann & T. Co. v. Coe................. 656 Kemp (C. M.) Mfg. Co. v. Hoeltke................ 673 Kentucky, Mont joy v............................ 646 Kleinschmidt v. Wallace......................... 675 Knight (J. T.) & Son v. Superior Fire Ins. Co... 654 Knott, United States v.......................... 544 Knowlton, Doherty v............................. 676 Kolar v. United States.......................... 686 Koplar Co., Central States Life Ins. Co. v...... 687 Koshland v. Helvering........................... 441 Kurtz, Rhoads v................................. 658 Kustoff v. State Bar of California.............. 661 KVOS, Inc. v. Associated Press................ 650 Lacey, New York Lumber Trade Assn, v............ 684 Landau v. United States Attorney................ 665 TABLE OF CASES REPORTED. xin Page. Lane (J. V.) & Co. v. The Californian......... 690 Laska v. United States........................ 689 Lee, In re.................................. 680 Lehigh Valley R. Co., Ensminger v............. 672 Leonardi v. Chase National Bank............... 677 Liggett & Myers Tobacco Co. v. De Parcq....... 680 Likly & Rockett Trunk Co. v. Provident Ins. Co.... 676 Lindh v. Booth Fisheries Corp................. 670 London Shoe Co. v. Commissioner............... 663 Lowden v. Northwestern Nat. Bank & T. Co....... 160 Lowell, Triplett v............................ 691 Lynch v. United States..................... 658, 692 Lyon Van & Storage Co., Norton v........... 662, 692 Madden, Kattelman v......................... 660 Madsen v. Baltimore Mail S. S. Co............. 675 Manhattan Co., President of, Callaghan v....... 685 Marifian v. United States..................... 686 Marine Midland Trust Co., Callaghan v......... 685 Marion Steam Shovel Co., Mozingo v............ 645 Martin, Camden Fire Ins. Co. v................ 672 Martin, Camden Safe Deposit & Trust Co. v......678 Martin, Dorrance v......................... 678, 692 Maryland Casualty Co. v. Moore................ 666 Massachusetts Mutual Life Ins. Co. v. Mayo..... 683 Matchette, Helvering v....... , i. 677 Mayo, Massachusetts Mutual Life Ins. Co. v....... 683 McCandless v. United States..................... 342 McCarthy Co. v. Commissioner.................... 655 McConnaughey v. Personal Industrial Bankers.... 674 McCrary v. Commissioner......................... 653 McCrary, Schenebeck v......................... 36 McDonnell, Berman v.......................... 660 McGee v. Baxter................................. 680 McHenry Chevrolet Co., McNutt v................. 190 McKey v. Paradise............................... 647 McLaughlin, Crown Willamette Paper Ço. v....... 674 McLaughlin, Illinois ex rei., Hartford Co. v... 155 XIV TABLE OF CASES REPORTED. Page. McNutt v. General Motors Acceptance Corp...... 178 McNutt v. McHenry Chevrolet Co............... 190 Mechanics Universal Joint Co. v. Culhane...... 648 Memphis Natural Gas Co. v. Gully............. 688 Metro-Goldwyn Pictures Corp. v. Sheldon....... 669 Michalek v. U. S. Gypsum Co.................. 639 Miles v. Department of Treasury.............. 640 Miller, Hocking Glass Co. v.................. 659 Miller v. Hockley.......................... 657 Miller v. Travelers Insurance Co............. 660 Missouri-Kansas-Texas Ry., Carnahan v......... 664 Moffett v. Robbins........................... 675 Monier, Guaranty Trust Co. v................. 670 Mont joy v. Kentucky........................ 646 Montrose Contracting Co., Westchester County v.. 662 Moore, Maryland Casualty Co. v............... 666 Morehead v. New York ex rel. Tipaldo......... 587 Morf v. Bingaman........................ 407, 639 Morgan v. United States.................. 468, 646 Mortimer, Ex parte.......................... 638 Motor Improvements, Inc., A. C. Spark Plug Co. v. 671 Mountain States Power Co. v. Public Service Comm’n..................................... 641 Moyerman v. Hale............................ 6^1j Mozingo v. Marion Steam Shovel Co........... 645 Munoz v. Porto Rico Ry., Light & Power Co..... 689 Munson Steamship Lines, Foust v. 649 Murphy, Jobissy v............................. 661 National Broadcasting Co., Uproar Co. v.......... 670 National Casket Co. v. United States......... 672 National City Bank v. Oelbermann............ 638 National City Bank, Oelbermann v............... 654 National Savings & Trust Co., Baldwin v...... 670 Nebraska v. Wyoming.......................... 642 Neidecker, U. S. ex rel., Valentine v............... 647 New Hampshire, Vermont v..................... 642 New Jersey, Simon v.......................... 666 TABLE OF CASES REPORTED. xv Page. New Mexico, Texas v........................ 639,644 New York ex rei. Rice v. Graves................ 683 New York ex rei. Tipaldo, Morehead v........... 587 New York Life Ins. Co., Enelow v............... 680 New York Lumber Trade Assn. v. Lacey........... 684 New York Railways Corp., Brukenfeld v........ 687 North Carolina, Carden v....................... 682 North Carolina ex rei. Atty. Gen., Gorson v..... 662 Northwestern Nat. Bank & T. Co., Lowden v....... 160 Norton v. Braniff Investment Co................ 663 Norton v. Lyon Van & Storage Co............. 662, 692 Noxon Chemical Products Co. v. Unger........... 679 Oakley Improved Bldg. & L. Co., Connecticut Co. v. 687 Oak Park Trust & Savings Bank, Van Doren v..... 659 O’Conner, Watson v............................. 657 Oelbermann v. National City Bank............... 654 Oelbermann, National City Bank v638 Old Line Life Ins. Co. v. Fulton............... 656 Oliver v. Richmond........................... 674 O’Toole, Ex parte............................. 639 Outlaw v. United States................»........ 665 Pacific Importing Co. v. General Electric Co.... 678 Pacific Western Oil Co., Bourdieu v............ 647 Paradise, McKey v.............................. 647 Paramount Pictures Distributing Co., Hennef ord v. 665 Parker v. James Granger, Inc................... 644 Parks, Estate of, Pupahl v..................... 649 Pastime Amusement Co., Southeastern Express Co. v............................................ 653 Patterson v. United States..................... 657 Peak v. Commissioner........................... 666 Peketz, Chandler v............................. 691 Pennsylvania R. Co., Aron v.................... 658 Pennsylvania R. Co., Fidelity & Deposit Co. v... 661 Pennsylvania R. Co. v. Public Utilities Comm’n.... 170 Personal Industrial Bankers, McConnaughey v.... 674 Peterson, American Diamond Lines, Inc. v........ 684 65773°—36 n XVI TABLE OF CASES REPORTED. Page. Peterson, The Black Gull v..................... 684 Phillips Petroleum Co. v. Jenkins.............. 691 Pick Manufacturing Co. v. General Motors Corp... 648 Piper v. Bingaman.............................. 643 Piquett v. United States....................... 664 P. J. Carlin Construction Co. v. Heaney........ 637 Police Jury, Courier Publishing Co. v.......... 675 Pollitt, Ex parte.............................. 641 Poresky v. Ryan............................. 654, 692 Porto Rico Brokerage Co. v. United States....... 671 Porto Rico Ry., Light & Power Co., Munoz v...... 689 Premier-Pabst Sales Co. v. Grosscup............ 226 President of the Manhattan Co., Callaghan v..... 685 Proctor, Wong Shong Been v..................... 665 Provident Life & Accident Ins. Co. v. Crady..... 681 Provident Mutual Life Ins. Co., Trunk Co. v..... 676 Prudence Company v. Fidelity & Deposit Co....... 642 Public Service Comm’n, Citizens Passenger Ry. Co. v........................................ 673 Public Service Comm’n, Mountain States Power Co. v........................................ 641 Public Utilities Comm’n, Pennsylvania R. Co. v.... 170 Pupahl v. Estate of Parks...................... 649 Railroad Credit Corp., Hawkins v................ 667 Rambo, Chicago Great Western R. Co. v........ 99, 692 R. C. Tway Coal Co. v. Clark................... 238 R. C. Tway Coal Co. v. Glenn................... 238 Rhoads v. Kurtz................................ 658 Rice, New York ex ret., v. Graves.............. 683 Rich, Chesapeake & Ohio Ry. v.................. 684 Richmond, Oliver v............................. 674 Richmond, Ruddock v............................ 674 Rives, Sims v.................................. 682 R. M. Hollingshead Co., Bassick Mfg. Co. v...... 415 Robbins, Moffett v.. .•........................ 675 Robinson v. Commissioner....................... 663 Rogers v. Alemite Corp......................... 415 TABLE OF CASES REPORTED. XVII Page. Rosen, Uebersee Finanz-Korporation v........... 679 Rosenberg v. United States..................... 669 Rosenberg, Walsh v............................. 663 Rubin, Ex parte................................ 642 Ruddock v. Richmond........................... 674 Rudolph Wurlitzer Co. v. Commissioner.......... 676 Ruzicka, Davis v............................... 671 Ryan, Poresky v............................ 654, 692 St. Joseph Stock Yards Co. v. United States..... 38 Salmen, Equitable Life Assurance Society v...... 664 Schafer v. Helvering........................... 650 Schenebeck v. McCrary........................... 36 Scott, Virginian Ry. Co. v....................... 683 Securities & Exchange Comm’n, Jones v........... 1 Sheldon, Metro-Goldwyn Pictures Corp, v......... 669 Shepard Broadcasting Service v. Aeolian-Skinner Co........................................... 681 Shipp, Driscoll Benevolent Estate v............ 686 Silk Center Building, Inc. v. Commissioner...... 683 Simon v. New Jersey............................ 666 Sims v. Rives................................. 682 Smith v. Ajax Pipe Line Co..................... 641 Smith v. Hall.................................. 652 Smith v. James Manufacturing Co................ 652 Snead, Beale v................................. 685 Soler (Jose Rivera) & Co. v. U. S. Firemen’s Insurance Co........................................ 651 South Carolina, Brown v........................ 639 South Carolina Tax Comm’n, Duke Power Co. v.... 669 Southeastern Express Co. v. Pastime Amusement Co........................................... 653 Spencer, Beadle v.. 124 Starr v. Commissioner.......................... 680 State Highway Comm’n, Kansas City Bridge Co. v.. 661 Stein, Hines v.............................. 94, 692 Stone v. White................................ 646 Streitz, Collins v............................. 640 XVIII TABLE OF CASES REPORTED. Page. Summerall v. United Fruit Co.................... 658 Sun Indemnity Co. v. Bruckner-Mitchell, Inc...... 677 Sun-Maid Raisin Growers v. California Packing Corp.......................................... 668 Superior Court, Frey & Horgan v................. 684 Superior Fire Ins. Co., J. T. Knight & Son v..... 654 Tegtmeyer, Ex parte............................. 642 Tennessee Publishing Co. v. American Nat. Bank... 651 Texas v. New Mexico......................... 639, 644 Texas Co., Graves v......................,.......393 Tipaldo, New York ex ret., Morehead v........... 587 Tipton v. Atchison, T. & S. F. Ry. Co........... 141 Torres, Cabanero v.............................. 661 Tousey v. Wabash-Harrison Building Corp.......... 685 Travelers Insurance Co., Miller v............... 660 Tremblay, Doherty v............................. 676 Triplett v. Lowell.............................. 691 Triplex Safety Glass Co., Duplate Corp, v........ 448 Trojan Powder Co. v. United States.............. 674 True v. Commissioner............................ 680 Tway (R. C.) Coal Co. v. Clark.................. 238 Tway (R. C.) Coal Co. v. Glenn.................. 238 Uebersee Finanz-Korporation v. Rosen............ 679 Unger, Noxon Chemical Products Co. v........... 679 Union Oil Co., Brimmer v........................ 668 United Fruit Co., Summerall v................... 658 United States, Acker v. 426, 692 United States, Adamowicz v...................... 664 United States v. Atlantic Mutual Ins. Co......... 483 United States, Baltimore & Ohio R. Co. v.........349 United States, Beard v.......................... 655 United States, Blume v.......................... 691 United States, Cerro de Pasco Copper Corp, v..... 686 United States v. Chicago, B. & Q. R. Co......... 689 United States v. Corrick.................... 435, 692 United States, Cossack v................. 654, 678, 691 United States, Craig v...................... 637, 690 TABLE OF CASES REPORTED. xix Page. United States, DeBenque v......................... 681 United States, Dixie Terminal Co. v............... 645 United States, Du Vail v.......................... 667 United States v. Elgin, J. & E. Ry................ 492 United States v. Esnault-Pelterie................. 653 United States, Everett Mills v.................. 691 United States, Fidelity & Deposit Co. v........... 665 United States, Fink v............................ 686 United States, Freeman v....................... 688 United States, Frost v.......................... 691 United States, Globe Gazette Printing Co. v...... 682 United States, Gooch v............................ 658 United States v. Idaho............................ 105 United States, International Machines Corp, v.. 131 United States, Irving Trust Co. v.............y... 686 United States, Isbrandtsen-Moller Co. v......... 644 United States, Johnson v. . . 688 United States v. Knott........................... 544 United States, Kolar v........................... 686 United States, Laska v689 United States, Lynch v....................... 658, 692 United States, Marifian v........................ 686 United States, McCandless v.................... 342 United States, Morgan v...................... 468, 646 United States, National Casket Co. v.............. 672 United States, Outlaw v.......................... 665 United States, Patterson v....................... 657 United States, Piquett v......................... 664 United States, Porto Rico Brokerage Co. v....... 671 United States, Rosenberg v........................ 669 United States, St. Joseph Stock Yards Co. v..... 38 United States, Trojan Powder Co. v................ 674 United States, Wainer v........................... 652 United States, Warner Bros. Pictures, Inc. v....... 643 United States, Weinblatt v.................. 637, 690 United States v. Wood............................. 652 United States, Zimmern v.......................... 167 XX TABLE OF CASES REPORTED. Page. United States Attorney, Landau v............... 665 U. S. ex rel. Neidecker, Valentine v............... 647 U. S. ex rel. Wampler, Hill v.................. 460 U. S. Fidelity & Guaranty Co. v. Bingaman....... 407 U. S. Firemen’s Insurance Co., Jose Rivera Soler & Co, v........................................ 651 U. S. Gypsum Co., Michalek v................... 639 U. S. Rubber Co. v. Firestone Tire & Rubber Co.... 679 Uproar Co. v. National Broadcasting Co......... 670 Valentine v. U. S. ex rel. Neidecker........... 647 Van Doren v. Oak Park Trust & Savings Bank......659 Van Vleck v. Commissioner...................... 656 Vermont v. New Hampshire....................... 642 Vincent v. Alabama............................. 682 Virginia, Firemen’s Mutual Aid Assn, v......... 677 Virginia, Hart v................................ 34 Virginian Ry. Co. v. Scott..................... 683 Wabash-Harrison Building Corp., Tousey v........ 685 Wachs, Foley v............................... 637 Wainer v. United States....................... 652 Wallace, Crook v............................... 683 Wallace v. Cutten.............................. 229 Wallace, Kleinschmidt v........................ 675 Walsh v. Rosenberg............................. 663 Wampler, U. S. ex rel., Hill v................. 460 Warner Bros. Pictures, Inc. v. United States.... 643 Washington v. Commissioner..................... 689 Washington, West Missouri Power Co. v.......... 668 Watson v. O’Conner............................. 657 Weinblatt v. United States................. 637, 690 Welborn v. Burns Trading Co.................... 672 Welch, H. M. Byllesby & Co. v.................. 686 Westchester County v. Montrose Contracting Co... 662 West Missouri Power Co. v. Washington.......... 668 Wheeling Steel Corp. v. Fox.................... 193 White, Stone v................................. 646 Whitney Realty Co. v. Commissioner............. 668 TABLE OF CASES REPORTED. xxi Page. Williams Bros. Well Treating Corp. v. Dow Co.. 690 Wimberly v. Cowan Investment Corp............. 654 Wolff v. Jordan Marsh Co...................... 673 Wong Shong Been v. Proctor.................... 665 Wood, United States v......................... 652 Wurlitzer Grand Piano Co. v. Commissioner..... 676 Wurlitzer (Rudolph) Co. v. Commissioner....... 676 Wyoming v. Colorado........................... 573 Wyoming, Nebraska v.......................... 642 Zerbst, Belt v................................ 667 Zimmern v. United States...................... 167 Zurich General Accident & L. Ins. Co. v. Daffern... 667 TABLE OF CASES Cited in Opinions Page. Abrams v. Van Schaick, 293 U. S. 188 543 Acker v. United States, 298 U. S. 426 . 436,477 Adair v. United States, 208 U. S. 161 298 Adams v. Storey, 1 Paine 79 535 Addyston Pipe & Steel Co. v. United States, 175 U. S; 211 292,298 Adkins v. Children’s Hospital, 261 U. S. 525 297, 603-636 Aero Mayflower Transit Co. v. Public Service Comm’n, 295 U. S. 285 410,412 Alabama v. United States, 279 U. S. 229 438,637 Alabama Great Southern R. Co. v. McFadden & Bros., 232 Fed. 1000 177 Alabama & Vicksburg Ry. v. Jackson & Eastern Ry. 271 U. S. 244 107 Alaska Packers Assn. v. Industrial Accident Comm’n, 200 Cal. 579 154 Alemite Corporation v. Lu-briar Corporation, 62 F. (2d) 899 417 Alemite Mfg. Corp. v. Hi- Pressure Sales Co., 33 F. (2d) 912 417 Alice State Bank v. Hous- ton Pasture Co., 247 U.S. 240 605 Alleged Rebates to the U.S. Steel Corp., In re, 36 I. C. C. 557 502 Page. Alpha Cement Co. v. Massachusetts, 268 U. S. 203 555 Alpha S. S. Corp. v. Cain, 281 U. S. 642 123 Alpin, The, 23 Fed. 815 491 Alton R. Co. v. United States, 287 U. S. 229 358 American Airways v. Wal- lace, 57 F. (2d) 877 404 American Commission Co. v. United States, 11 F. Supp. 965 50,363 American Surety Co. v. Baldwin, 287 U. S. 156 369, 466 Anderson v. Watt, 138 U. S. 694 184,186 Appalachian Coals, Inc. v. United States, 288 U. S. 344 331 Arizona v. California, 283 U. S. 423 561,566,569,570 Arizona, The, v. Anelich, 298 U. S. 110 128,129 Arizona Employers’ Liabil- ity Cases, 250 U. S. 400 634 Arizona Grocery Co. v. At- chison, T. & S. F. Ry., 284 U. S. 370 440 Arkadelphia Milling Co. v. St. Louis S. W. Ry. Co., 249 U. S. 134 177,306 Armour & Co. v. North Da- kota, 240 U. S. 510 628 Armstrong v. Belding Bros. & Co., 297 Fed. 728 457 Ashwander v. Tennessee Valley Authority, 297 U. S. 288 287,325 XXIII XXIV TABLE OF CASES CITED. Page. Atchison, T. & S. F. Ry. v. Saxon, 284 U. S. 458 101,102 Atchison, T. & S. F. Ry. v. United States, 284 U. S. 248 56,379,389 Atchison, T. & S. F. Ry. v. United States, 295 U. S. 193 359 Atlantic Coast Line v. Arcade & Attica R. Co., 194 I. C. C. 729 385,386 Atlantic Coast Line v. Doughton, 262 U. S. 413 404 Atlantic Coast Line v. Florida, 203 U. S. 256 377 Atlantic Coast Line v. Florida, 295 U. S. 301 328 Atlantic Coast Line v. Standard Oil Co., 275 U. S. 257 . 175 Auto Acetylene Light Co. v. Prest-O-Lite Co., 276 Fed. 537 140 Backus v. Fort Street Union Depot Co., 169 U. S. 557 79 Baizley Iron Works v. Span, 281 U. S. 222 129 Baldwin v. Missouri, 281 U. S. 586 . 209 Baldwin v. Seelig, Inc., 293 U. S. 522 637 Baldwin v. Seelig, Inc., 294 U. S. 511 326 Ballard v. Sacramento Northern Ry., 126 Cal. App. 486 149,152 Baltimore & Carolina Line v. Redman, 295 U. S. 654 638 Baltimore National Bank v. Tax Commission, 297 U.S. 209 540 Baltimore & Ohio R. Co. v. Interstate Commerce Comm’n, 215 U. S. 216 641,645 Baltimore & Ohio R. Co. v. United States, 298 U. S. 349 604 Baltimore & Ohio S. W. R. Co. v. Settle, 260 U. S. 166 174 Banton v. Belt Line Ry., 268 U. S. 413 371 Page. Barber Asphalt Paving Co. v. Standard Asphalt & Rubber Co., 30 F. (2d) 281 457 Barclay, Ex parte, 153 Fed. 669 463 Barnard v. Adams, 10 How. 270 489 Barrett v. Virginian Ry Co., 250 U. S. 473 20 Barry v. Edmunds, 116 U. S. 550 183,184 Basset v. United States, 9 Wall. 38 170 Bassick Mfg. Co. v. Adams Grease Gun Corp., 39 F. (2d) 904; 52 F. (2d) 36 417 Bassick Mfg. Co. v. Auto Equipment Co., 13 F. (2d) 463 417 Bassick Mfg. Co. v. Larkin Automotive Parts Co., 19 F. (2d) 939 417 Bassick Mfg. Co. v. Rogers, 26 F (2d) 724 417 Bassick Mfg. Co. v. Standard Products Mfg. Co., 19 F. (2d) 937 417 Bassick Mfg. Co. v.' United Grease Gun Corp., 40 F. (2d) 549 417 Bass, Ratcliff & Gretton v. State Tax Comm’n, 266 U. S. 271 212 Bauer v. Improvement District, 168 Ark. 220 37 Bauman v. Ross, 167 U. S. 548 78 Beals v. Hale, 4 How. 37 414 Beaston v. Farmers’ Bank, 12 Pet. 102 547,549 Beaumont, S. L. & W. Ry. v. United States, 282 U. S. 74 357,359 Bedford Stone Co. v. Stone Cutters Assn., 274 U. S. 37 305 Beidler v. South Carolina Tax Comm’n, 282 U. S. 1 209, 210 TABLE OF CASES CITED. XXV Page. Berryman v. Whitman College, 222 U. S. 334 181 Biddle v. Shirley, 16 F. (2d) 566 465 Birkley v. Presgrave, 1 East 220 . 489 Bitterman v. Louisville & N. R. Co., 207 U. S. 205 181 Block v. Hirsh, 256 U. S. 135 333,632 Bluefield Water Works Co. v. Public Service Comm’n, 262 U. S. 679 49,369,371 Board of Assessors v. Comp-toir National, 191 U. S. 388 210 Boldt v. Pennsylvania R. Co., 245 U .S. 441 119 Booth v. Illinois, 184 U. S. 425 628 Borden’s Farm Products Co. v. Baldwin, 293 U. S. 194 625 Borden’s Farm Products Co. v. Ten Eyck, 297 U. S. 251 634 Bosley v. McLaughlin, 236 U. S. 385 630,633 Boston & Maine R. Co. v. Annburg, 285 U. S. 234 153 Bostwick v. Brinkerhoff, 106 U. S. 3 639 Boyd v. Archer, 42 F. (2d) 43 465 Boyd v. United States, 116 U. S. 616 24, 26, 27, 28, 33 Boyle v. Zacharie, 6 Pet. 348 362 Bramwell v. U. S. Fidelity & Guaranty Co., 269 U. S. 483 547 Brass v. Stoeser, 153 U. S. 391 632,634 Brimstone R. Co. v. United States, 276 U. S. 104 357,359 Bristol v. Washington County, 177 U. S. 133 210 Broad-Grace Arcade Corp v. Bright, 284 U. S. 588 184 Bronson v. Schulten, 104 U. S. 410 170 Page. Bronx Brass Foundry v. Irving Trust Co., 297 U. S. 230 21,30 Brooks v. United States, 267 U. S. 432 327,330 Brown v. Maryland, 12 Wheat. 419 401 Brownfield v. South Carolina, 189 U. S. 426 646 Buff urn v. Barceloux Co., 289 U. S. 227 458 Bunting v. Oregon, 243 U. S. 426 628,634 Burch (R. W.), Inc. v.Railway Express Agency, 190 I. C. C. 520; 197 I. C. C. 85 377 Burnet v. A. T. Jergins Trust, 288 U. S. 508 406 Burnet v. Brooks, 288 U. S. 378 209,295 Burnet v. Coronado Oil & Gas Co., 285 U. S. 393 94 Burns Mortgage Co. v. Fried, 292 U. S. 487 151 Burton v. Union Oil Co., 129 Cal. App. 438 154 Butler v. Wyman, 128 Cal. App. 736 154 Butts v. Merchants Transportation Co., 230 U. S. 126 316 Byars v. United States, 273 U. S. 28 27 Calhoun v. Massie, 253 U. S. 170 98 California v. Southern Pa- cific Co., 157 U. S. 229 572 California Growers’ & Shippers’ League v. Southern Pacific Co., 129 I. C. C. 25 377 Campbell River Mills Co. v. Chicago, M., St. P. & P. R. Co., 42 F. (2d) 775; 53 F. (2d) 69 175 Canda Bros. v. Michigan Malleable Iron Co., 152 Fed. 178 . 453,458 Carbice Corporation v. American Patents Corp., 283 U, 8. 27 136,139,425 XXVI TABLE OF CASES CITED. Page. Carborundum. Co. v. Electric Smelting & Aluminum Co., 203 Fed. 976 457 Cargill (W. W.) Co. v. Minnesota, 180 U. S. 452 158 Carlisle Packing Co. v. Sandanger, 259 U. S. 255 121,129 Ceballos (J. M.) & Co., In re, 161 Fed. 445 537 Cedar Rapids Gas Co. v. Cedar Rapids, 223 U. S. 655 74,372 Central Loan & Trust Co. v. Campbell, 173 U. S. 84 640 Champlain Realty Co. v. Brattleboro, 260 U. S. 366 175 Champlin Rfg. Co. v. Corporation Commission, 286 U. S. 210 303 Chase v. Wetzlar, 225 U. S. 79 187,188 Chassaniol v. Greenwood, 291 U. S. 584 158,303 Cheatham v. United States, 92 U. S. 85 79 Chelentis v. Luckenbach S. S. Co., 247 U. S. 372 119, 120,123 Cheney Brothers Co. v. Massachusetts, 246 U. S. 147 555,556 Chicago & Alton R. Co. v. Union Rolling Mill Co., 109 U. S. 702 20 Chicago Board of Trade v. Olsen, 262 U. S. 1 177 Chicago, B. & Q. R. Co. v. Babcock, 204 U. S. 585 93 Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549 628 Chicago, B. & Q. R. Co. v. Osborne, 265 U. S. 14 369 Chicago Junction Case, 264 U. S. 258 74,358,359,480 Chicago, M. & St. P. Ry. v. Coogan, 271 U. S. 472 101 Chicago, M. & St. P. Ry. v. Minnesota, 134 U. S. 418 364 Chicago, M. & St. P. Ry. v. Tompkins, 176 U. S. 167 378 Page. Chicago, R. I. & P. Ry. v. United States, 274 U. S. 29 75 Child Labor Tax Case, 259 U. S. 20 289,338 Cincinnati, N. O. & T. P. Ry. v. Interstate Commerce Comm’n, 162 U. S. 184 174 Citizens National Bank v. Durr, 257 U. S. 99 638 City Bank Co. v. Schnader, 291 U. S. 24 288 City of Alexandria, The, 17 Fed. 390 121 Clark v. Martin, 49 Pa. 289 16 Clark v. Poor, 274 U. S. 554 410, 412 -Clark v. Williard, 294 U. S. 211 605 Clark Bros. & Co. v. Pou, 20 F. (2d) 74 165 Clark Distilling Co. v. Western Maryland Ry., 242 U. S. 311 540 Clarke v. Deckebach, 274 U. S. 392 625 Clark’s Ferry Bridge Co. v. Public Service Comm’n, 291 U. S. 227 56,59 Cleveland & Pittsburgh R. Co. v. Cleveland, 235 U. S. 50 640 Coast S. S. Co. v. Brady, 8 F. (2d) 16 124 Coe v. Errol, 116 U. S. 517 175,301 Collector v. Day, 11 Wall. 113 294,528 Collins v. Texas, 223 U. S. 288 413 Columbus Gas & Fuel Co. v. Public Utilities Comm’n, 292 U. S. 398 63 Colusa, The, 248 Fed. 21 122,123 Commissioner v. Koshland, 81 F. (2d) 641 442 Commissioner v. Tillotson Mfg. Co., 76 F. (2d) 189 442 Conboy v. First National Bank, 203 U. S. 141 168 Confiscation Cases, 7 Wall. 454 20 TABLE OF CASES CITED. XXVII Page. Connecticut v. Massachusetts, 282 U. S. 660 568 Conroy v. Penn Electrical & Mfg. Co., 199 Fed. 427 457 Continental Illinois Bank v. Chicago, R. I. & P. Ry., 294 U. S. 648 527, 535,536,537 Continuous Glass Press Co. v. Schmertz Wire Glass Co., 219 Fed. 199 453 Cooke v. Boynton, 135 Pa. 102 16 Coronado Coal Co. v. United Mine Workers, 268 U. S. 295 304,305 Cortes v. Baltimore Insular Line, 287 U. S. 367 123 Couch v. Steele, 3 El. & Bl. 402 121 Crane v. Hahlo, 258 U. S. 142 78,80 Cricket S. S. Co. v. Parry, 263 Fed. 523 122,123 Crosby Valve Co. v. Safety Valve Co., 141 U. S. 441 452, 455,456,458,459 Cross v. Evans, 167 U. S. 60 641,645 Crowell v. Benson, 285 U. S. 22 49,82,369,392 Cullinan v. Walker, 262 U. S. 134 445 Cutler v. Rae, 7 How. 729 440 Dade v. Irwin’s Executor, 2 How. 383 165 Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282 326,329 Danforth v. Groton Water Co., 178 Mass. 472 539 Daniel v. Ferguson, L. R. [1891] 2 Ch. 27 16 Darnell v. Edwards, 244 U. S. 564 53 Davidson v. New Orleans, 96 U. S. 97 78 Davis v. Newton Coal Co., 267 U. S. 292 367 Davis v. Pringle, 268 U. S. 315 547 Page. Dawson v. Kentucky Distilleries Co., 255 U. S. 288 400 Dayton-Goose Creek Ry. v. United States, 263 U. S. 456 357,369,370 Dayton Power & Light Co. v. Public Utilities Comm’n 292 U. S. 290 53,63 Delaware, L. & W. R. Co. v. Peck, 255 Fed. 261 147 Denny v. Bennett, 128 U. S. 489 466 Denver & Rio Grande R. Co. v. Interstate Commerce Comm’n, 195 Fed. 968 176 Denver Union Stock Yard Co. v. United States, 57 F. (2d) 735 50,363 Deputron v. Young, 134 U. S. 241 ‘ 184 De Sobry v. Nicholson, 3 Wall. 420 183 Det Forenede Dampskibs Selskab v. Insurance Co., 31 F. (2d) 658, cert, den., 280 U. S. 571 489,490 Detroit v. Detroit City Ry., 55 Fed. 569 18,19 Detroit Heating & Lighting Co. v. Kemp., 182 Fed. 847 466 De Wolf v. Rabaud, 1 Pet. 476 183 Diamond Match Co. v. Ontonagon, 188 U. S. 82 175 Diamond Stone-Sawing Machine Co. v. Brown, 166 Fed. 306 451 Di Giovanni v. Camden Fire Ins. Assn., 296 U. S. 64 404 Dillingham v. McLaughlin, 264 U. S. 370 413 Dillon v. Strathearn S. S. Co., 248 U. S. 182 464 Director General v. Ronald, 265 Fed. 138 147 Di Santo v. Pennsylvania, 273 U. S. 34 328 Dixon v. The Cyrus, 2 Pet. Adm. 407 121 Dobson v. Wilson, 3 Camp. 480 489 XXVIII TABLE OF CASES CITED. Page. Dohany v. Rogers, 281 U. S. 362 77 Donham v. West-Nelson Mfg. Co., 273 U. S. 657 617, 623 Dorchy v. Kansas, 264 U. S. 286 313,334 Doss v. Tyack, 14 How. 297 170 Duplate Corporation v. Triplex Safety Glass Co., 42 F. (2d) 739 456 DuPont v. Commissioner, 289 U. S. 685 329 Eastern Class Rate Investigation, 164 I. C. C. 314 352 Easton Passenger Ry. v. Easton, 133 Pa. 505 16 Edelman v. Boeing Air Transport, 289 U. S. 249 405 Edison Electric Light Co. v. Peninsular Light Co., 101 Fed. 831 425 Edith Godden, The, 23 Fed. 43 121,122 Eisner v. Macomber, 252 U. S. 189 444,445 Ellis v. Interstate Commerce Comm’n, 237 U. S. 434 26 Emilia S. De Perez, The, 22 F. (2d) 585 489 Employers’ Liability Assurance Corp. v. Cook, 281 U. S. 233 129 Entick v. Carrington, 19 Howell’s St. Trials, 1030 28,33 Ervin v. Alabama, 80 F. (2d) 432 400,405 Eubank v. Richmond, 226 U. S. 137 312 Euclid v. Ambler Realty Co., 272 U. S. 365 288 Ex parte. See name of party. Fairport, P. & E. R. Co. v. Meredith, 292 U. S. 589 146, 148 Farmers Loan & Trust Co. v. Minnesota, 280 U. S. 204 209,210 Farmers & Mechanics Bank v. Minnesota, 232 U. S. 516 531 Page. Farmington v. Pillsbury, 114 U. 8. 138 183 Farrington v. Tokushige, 273 U. 8. 284 438 Federal Compress Co. v. McLean, 291 U. 8. 17 158 Federal Radio Comm’n v. Nelson Bros. Co., 289 U. S. 266 333 Federal Trade Comm’n v. American Tobacco Co., 264 U. 8. 298 26 Federal Trade Comm’n v. Pacific States Paper Assn., 273 U. 8. 52 174, 326 Federal Trade Comm’n v. Sinclair Rfg. Co., 261 U. 8. 463 135 Feige v. Michigan Central R. Co., 62 Mich. 1 362 Fifteen Per Cent. Case, 45 I. C. C. 303 354 Fillippon v. Albion Vein Slate Co., 250 U. 8. 76 348 First National Bank v. Maine, 284 U. S. 312 209,210 Five Per Cent. Case, 31 I. C. C. 351; 32 I. C. C. 325 354 Flanagan v. Federal Coal Co., 267 U. 8. 222 326 Flanigan v. Hines, 108 Kan. 133 147 Florida v. United States, 282 U. S. 194 74, 359, 477, 478, 480 Florida v. United States, 292 U. 8. 1 51,328,377 Florida East Coast Ry. v. United States, 234 U. S. 167 75 Florida Fruit & Vegetable Shippers’ Assn. v. Atlantic Coast Line, 14 I. C. C. 476 354 Folding Furniture Works v. Industrial Commission, 300 Fed. 991 618 Fong Yue Ting v. United States, 149 U. S. 698 295 443 Cans v. United States, 226 U. 8. 172 440 TABLE OF CASES CITED. XXIX Page. Fox v. Washington, 236 U. S. 273 35 Frank v. Hicks, 4 Wyo. 502 584 Frank v. Mercantile National Bank, 182 N. Y. 264 165 Frank and Willie, The, 45 Fed. 494 121,122,129,130,131 Fredericks v. Huber, 180 Pa. 572 16 Frick v. Pennsylvania, 268 U. S. 473 209 Frisbie v. United States, 157 U. S. 160 633 Galveston Electric Co. v. Galveston, 258 U. S. 388 62, 63,371 Garfield v. Goldsby, 211 U. S. 249 24,370, General Electric Co. v. Ohio Brass Co., 277 Fed. 917 425 General Interest Ins. Co. v. Ruggles, 12 Wheat. 408 225 General Motors Corp. v. United States, 286 U. S. 49 162 General Oil Co. v. Crain, 209 U. S. 211 . 177 Georgia Public Service Comm’n v. Atlantic Coast Line, 186 I. C. C. 157 377 Georgia Ry. Co. v. Decatur, 262 U. S. 432 640 Georgia Ry. & Power Co. v. Railroad Commission, 262 U. S. 625 76 German Alliance Ins. Co. v. Lewis, 233 U. S. 389 628 632,634 Gibbons v. Ogden, 9 Wheat. 1 298,319 Gilbert v. David, 235 U. S. 561 184,185 Gil vary v. Cuyahoga Valley Ry., 292 U. S. 57 146 148, 150, 152, 155 Glenwood Light Co. v. Mutual Light Co., 239 U. S. 121 181 Globe S. S. Co. v. Moss, 245 Fed. 54 122 Page. Graham v. West Virginia, 224 U. S. 616 35 Graham & Foster v. Good- cell, 282 U. S. 409 414 Gray v. Rollo, 18 Wall. 629 165 Great Northern R. Co. v. Weeks, 297 U. S. 135 379 Green v. Neal’s Lessee, 6 Pet. 291 609 Greene v. Darling, 5 Mason 201 165 Grimberg v. Admiral Orien- tal S. S. Line, 300 Fed. 619 123,124 Grosjean v. Texas Co., 297 U. S. 697 637 Gully v. Interstate Natural Gas Co., 292 U. S. 16 440 Gunter v. Atlantic Coast Line, 200 U. S. 273 542 Haddox v. Richardson, 168 Fed. 635 463 Hagar v. Reclamation District, 111 U. S. 701 82 Hall v. Geiger-Jones Co., 242 U. S. 539 158,628 Hallowell v. United States, 209 U. S. 101 162 Halverson v. Nisen, 3 Saw. 562 121,122 Hamilton v. Kentucky Dis- tilleries, 251 U. S. 146 327, 330 Hammer v. Dagenhart, 247 U. S. 251 295 Hammond Packing Co. v. Arkansas, 212 U. S. 322 640 Hanover National Bank v. Moyses, 186 U. S. 181 527, 535, 537, 542 Hanson v. Luckenbach S. S. Co., 65 F. (2d) 457 124,128 Hans Rees’ Sons v. North Carolina, 283 U. S. 123 208, 212 Hardware Dealers Mutual Fire Ins. Co. v. Glidden Co., 284 U. S. 151 80 Harriman v. Interstate Commerce Comm’n, 211 U. S. 407 26 XXX TABLE OF CASES CITED. Page. Harvey Hubbell, Inc. v. General Electric Co., 267 Fed. 564 425 Hatch v. Reardon, 204 U. S. 152 35,329,330,413,540 Hawley v. Walker, 232 U.S. 718 633 Head Money Cases, 112 U. S. 580 326 Heald v. District of Columbia, 259 U. S. 114 227 Heald v. Rice, 104 U. S. 737 425 Healy v. Ratta, 292 U. S. 263 181 Heaton, The, 43 Fed. 592 121, 122 Hedley v. Pinkney & Sons S. S. Co., [1894] A. C. 222 122 Hegeman Farms Corp. v. Baldwin, 293 U. S. 163 634 Heisler v. Thomas Colliery Co., 260 U. S. 245 302 Helvering v. Minnesota Tea Co., 296 U. S. 378 447 Helvering v. Rankin, 295 U. S. 123 79 Henderson v. Carbondale Coal & Coke Co., 140 U. S. 25 170 Hendrick v. Maryland, 235 U. S. 610 410 Henry v. A. B. Dick Co., 224 U. S. 1 137 Hiawassee Power Co. v. Carolina-Tennessee Co., 252 U. S. 341 640 Hill v. Wallace, 259 U. S. 44 339 Hilton v. Merritt, 110 U. S. 97 79 Hirsch, In re, 97 Fed. 571 537 Holden v. Hardy, 169 U. S. 366 628 Hollingshead Co. v. Bas-sick Mfg. Co., 73 F. (2d) 543 416 Home Cab Co. v. Wichita, 295 U. S. 716 646 Hopkins v. Clemson College, 221 U. S. 636 543 Page. Hopkins v. Southern California Tel. Co., 275 U. S. 393 404 Hopkins v. United States, 171 U. S. 578 298 Hopkins Federal Savings & Loan Assn. v. Cleary, 296 U. S. 315 538 Houck v. Little River Drainage District, 239 U. S. 254 528 Houston, E. & W. T. Ry. v. United States, 234 U. S. 342 532 Howard v. United States, 75 Fed. 986 465,466 Howard Fire Insurance Co. v. Norwich & New York Transp. Co., 12 Wall. 194 542 Howarth v. U. S. Shipping Board E. F. Corp., 24 F. (2d) 374 124,128 Hughes Bros. Co. v. Minnesota, 272 U. S. 469 175 Humphrey’s Executor v. United States, 295 U. S. 602 81 Hunt v. N. Y. Cotton Exchange, 205 U. S. 322 181,183 Illinois Commerce Comm’n v. United States, 292 U. S. 474 389 Imperial Irrigation District, In re, 10 F. Supp. 832 541 Indian Motocycle Co. v. United States, 283 U. S. 570 ‘ 529 Indian Territory Co. v. Board of Equalization, 287 U. S. 573 638 Industrial Assn. v. United States, 268 U. S. 64 305 Ingraham v. Hanson, 297 U. S. 378 37 In re. See name of party. Insurance Co. v. Dunham, 11 Wall. 1 489 International Harvester Co. v. Kentucky, 234 U. S. 216 609 TABLE OF CASES CITED. XXXI Page. International Postal Supply Co. v. Bruce, 194 U. S. 601 572 International Stevedoring Co. v. Haverty, 272 U. S. 50 130 International Textbook Co. v. Pigg, 217 U. S. 91 314,316 Interstate Commerce Comm’n v. Brimson, 154 U. S. 447 33 Interstate Commerce Comm’n v. Diffenbaugh, 222 U. S. 42 75 Interstate Commerce Comm’n v. Louisville & N. R. Co., 227 U. S. 88 51, 359,478,480 Interstate Commerce Comm’n v. Northern Pacific Ry., 216 U. S. 538 75 InterstateCommerceComm’n v. Union Pacific R. Co., 222 U. S. 541 74,319 Interstate Transit, Inc. v. Lindsey, 283 U. S. 183 410,412 Ipswich, The, 46 F. (2d) 136 124 Iron Ore Rate Cases, 41 • ICC 181 377 Iroquois, The, 194 U. S. 240 122 Iselin v. United States, 270 U. S. 245 237 Ives v. United States 58 F. (2d) 201 124 Jackson, Ex parte, 96 U. S. 727 463 Jacobs v. Southern Ry. Co., 241 U. S. 229 119 Jacobson v. Massachusetts, 197 U. S. 11 292 Jamison v. Encarnacion, 281 U. S. 635 123 Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1 638 Jewell v. Knight, 123 U. S. 426 641,645 Johnson v. Manhattan Ry. Co., 289 U. S. 479 605 Johnston v: Little Horse Creek Irrigating Co., 13 Wyo. 208 584 65773°—36---in Page. Jones v. Prairie Oil Co., 273 U. S. 195 609 Jones v. Securities & Ex- change Comm’n, 298 U. S. 1 370,643 Jones v. United States, 137 U. S. 202 295 Julia Fowler, The, 49 Fed. 277 121,122 Kane v. New Jersey, 242 U. S. 160 410 Kansas v. Colorado, 185 U. S. 125 568 Kansas v. Colorado, 206 U. S. 46 293,566,568 Kansas v. United States, 204 U. S. 331 568 Kansas City Southern Ry. v. Albers Commission Co., 223 U. S. 573 74,372 Kamuth v. United States, 279 U. S. 231 289 Keeney v. New York, 222 U. S. 525 413 Kelly v. Knott, 120 Fla. 580 547 Kentucky Railroad Tax Cases, 115 U. S. 321 80 Kidd v. Pearson, 128 U. S. 1 299,302 Kilbourn v. Thompson, 103 U. S. 168 26 King v. Local Government Board [1914] 1 K. B. 160 482 King v. Mullins, 171 U. S. 404 80 King v. Talbot, 40 N< Y. 76 458 King Manufacturing Co. v. Augusta, 277 U. S. 100 363 Klein, In re, 1 How. 277, n. 536 Knights of Pythias v. Meyer, 265 U. S. 30 609 Knoxville v. Knoxville Water Co., 212 U. S. 1 378 Knoxville Iron Co. v. Har- bison, 183 U. S. 13 628 633,634 Kohler & Chase v. United American Lines, 60 F. (2d) 530 489 XXXII TABLE OF CASES CITED. Page. König v. M. & C. C. of Balto., 126 Md. 606 17 Kraemer v. Chicago & N. W. Ry., 148 Minn. 310 147 Kunzler v. Kohans, 5 Hill 317 537 Lafourche Packet Co. v. Henderson, 94 Fed. 871 122 Lancashire Shipping Co. v. Elting, 70 F. (2d) 699, cert, den., 293 U. S. 594 225 Langan v. Warren Axe & Tool Co., 184 Fed. 720 425 Langer v. Grandin Farmers Cooperative Elevator Co., 292 U. S. 605 637 Larabee Flour Mills Co. v. First National Bank, 290 U. S. 594 641,645 Larkin Automotive Parts Co. v. Bassick Mfg. Co., 19 F. (2d) 944 417 Larson Co. v. Wrigley Co., 277 U. S. 97 450 Lawther v. Hamilton, 64 Fed. 221 457 Lee v. New Jersey, 207 U. S. 67 35 Leeds & Catlin v. Victor Talking Machine Co., 213 U. S. 301 137,425 Lehigh Valley R. Co. v. United States, 243 U. S. 412 438 Lehigh Valley R. Co. v. Utility Commissioners, 278 U. S. 24 369 Lemke v. Farmers Grain Co., 258 U. S. 50 326 Levin Bros. v. Davis Mfg. Co., 72 F. (2d) 163 453 Levy Leasing Co. v. Siegel, 258 U. S. 242 333,632 Lewis v. New York, 289 U. S. 709 638 Lincoln County v. Luning, 133 U. S. 529 543 Lindgren v. United States, 281 U. S. 38 118,121 Lindheimer v. Illinois Telephone Co., 292 U. S. 151 53, 66 Page. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 35,625 Lion Bonding Co. v. Karatz, 262 U. S. 77 183 Liverpool & L. & G. Ins. Co. v. Board of Assessors, 221 U. S. 346 210 Livingston’s Executrix v. Story, 11 Pet. 351 183 Lizzie Frank, The, 31 Fed. 477 121 Local Government Board v. Arlidge [1915] A. C. 120 482 Lockwood v. Beckwith, 6 Mich. 168 165 Lombard v. Lombard, 57 Miss. 171 362 Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685 78 Los Angeles Gas Corp. v. Railroad Commission, 289 U. S. 287 51, 53, 62, 67, 372, 379 Louisiana v. McAdoo, 234 U. S. 627 572 Louisville Joint Stock Land Bank v. Radford, 295 U. S. 555 527,535,536,537 Louisville & N. R. Co. v. Behlmer, 175 U. S. 648 174 Louisville & N. R. Co. v. Garrett, 231 U. S. 298 356, 479 Lymari Mfg. Co. v. Bassick Mfg. Co., 18 F. (2d) 29 417 MacBeth Evans Glass Co. v. Smith Glass Co., 21 F. (2d) 553 453,455 Mahler v. Eby, 264 U. S. 32 333 Ma-King Co. v. Blair, 271 U. S. 479 76 Manhattan General Equipment Co. v. Commis- , sioner, 297 U. S. 129 447 Manke v. People, 74 N. Y. 415 464 Mantle Lamp Co. v. Aluminum Products Co., 297 U. S. 638 162,641,645 TABLE OF CASES CITED. XXXIII Page. Manufacturers Ry. Co. v. United States, 246 U. S. 457 53,76,82,359,372 Marcus Brown Co. v. Feldman, 256 U. S. 170 333,632 Marr v. United States, 268 U. S. 536 445 Martin v. Hunter’s Lessee, 1 Wheat. 304 292 Masjulis v. U. S. Shipping Board E. F. Corp., 31 F. (2d) 284 124 Matthews v. Clark, 105 S. C. 13 362 Mattingly v. Northwestern V. R. Co., 158 U. S. 553 440 McCardle v. Indianapolis Water Co., 272 U. S. 400 378 McCaughn v. Hershey Chocolate Co., 283 U. S. 488 445 McCluskey v. Marysville & Northern Ry. Co., 243 U. S.36 175 McCulloch v. Maryland, 4 Wheat. 316 291, 531,538 McDowell v. Peyton, 10 Wheat. 454 362 McFadden & Bros. v. Alabama Great Southern R. Co., 241 Fed. 562 177 McFeely v. Commissioner, 296 U. S. 102 445 McGowan v. Columbia River Packers’ Assn., 245 U. S. 352 20, 643 McGrath Holding Corp. v. Anzell, 58 F. (2d) 205 137 McKee Glass Co. v. Fry Glass Co., 248 Fed. 125 452, 458 McLean v. Arkansas, 211 U. S. 539 628, 633, 634 McMahon v. Montour R. Co, 270 U. S. 628 148 McMillen v. Anderson, 95 U. S. 37 77 McNally v. Hill, 293 U. S. 131 465 McNutt v. General Motors Acceptance Corp, 298 U. S. 178 191,192 Page. McPhail v. Forney, 4 Wyo. 566 584 Meagher v. Minnesota Thresher Mfg. Co, 145 U. S. 608 640 Meeker v. Lehigh Valley R. Co, 236 U. S. 412 359 Meigs v. Milligan, 177 Pa. 66 16 Mellon v. Michigan Trust Co, 271 U. S. 236 547,548 Metcalf & Eddy v. Mitchell, 269 U. S. 514 406 Metropolitan Life Ins. Co. v. New Orleans, 205 U. S. 395 210 Meyer v. Nebraska, 262 U. S. 390 617 Middleton v. Texas Power & Light Co, 249 U. S. 152 645 Miles v. Safe Deposit & Trust Co, 259 U. S. 247 448 Miller v. Aderhold, 288 U. S. 206 464 Miller v. Reading Co, 292 Pa. 44 147 Miller v. Wilson, 236 U. S. 373 630,633 Minneapolis, St. P. & S. S. M. Ry. v. Popplar, 237 U. S. 369 146 Minnesota v. Northern Se-1 curities Co, 184 U. S. 199 572 Minnesota v. Northern Securities Co, 194 U. S. 48 440 Minnesota Rate Cases, 230 U. S. 352 51, 59, 158, 319, 378 Mintz v. Baldwin, 289 U. S. 346 158 Missouri v. Illinois, 200 U. S. 496 568 Missouri ex rel. S. W. Bell Tel. Co. v. Public Service Comm’n, 262 U. S. 276 92 Missouri Rate Cases, 230 U. S. 474 378 Mitchell v. Maurer, 293 U. S. 237 44Ö XXXIV TABLE OF CASES CITED. Page. Monongahela Navigation Co. v. United States, 148 U. S. 312 365 Moore v. Chesapeake & Ohio Ry., 291 U. S. 205 146, 148, 150, 152 Moran v. Loudoun National Bank, 297 U. S. 698 640 Morf v. Bingaman, 298 U. S. 407 643 Morgan v. United States, 8 F. Supp. 766 363 Morgan Envelope Co. v. Al- bany Paper Co., 152 U. S. 425 425 Morris v. Gilmer, 129 U. S. 315 184,440 Morrissev v. Commissioner, 296 U.“ S. 344 447 Motion Picture Patents Co. v. Universal Film Co., 243 U. S. 502 136 Mountain Timber Co. v. Washington, 243 U. S. 219 635,645 Mowry v. Whitney, 14 Wall. 620 459 Mugler v. Kansas, 123 U. S. 623 228 Muller v. Oregon, 208 U. S. 412 630,633 Munn v. Illinois, 94 U. S. 113 294,632,634 Murphy v. Sardell, 269 U. S. 530 617,623 Murray’s Lessee v. Hoboken Land & Imp. Co., 18 How. 272 77,364 Mutual Loan Co. v. Martell, 222 U. S. 225 633 Mutual Transit Co. - v. United States, 178 Fed. 664 174 Nashville, C. & St. L. Ry. v. Wallace, 288 U. S. 249 405 National Fire Ins. Co. v. Thompson, 281 U. S. 331 438 Near v. Minnesota, 283 U. S. 697 617 Nebbia v. New York, 291 U. S. 502 319, 327, 330,332, 625, 628, 632, 634 Page. New Berne, The, 80 F. (2d) 244 124 New England Divisions Case, 261 U. S. 184 74, 357,370 New Haven Clock Co. v. Kochersperger, 175 Ill. 383 17 New Jersey v. New York, 283 U. S. 336 568 New Orleans v. Stempel, 175 U. S. 309 210 New York v. Kleinert, 268 U. S. 646 646 New York v. Maclay, 288 U. S. 290 549 New York Central R. Co. v. White, 243 U. S. 188 634, 635,645 New York Central Securities Corp. v. United States, 287 U. S. 12 333 New York & Queens Gas Co. v. McCall, 245 U. S. 345 76 Ng Fung Ho v. White, 259 U. S. 276 77 Nishimura Ekiu v. United States, 142 U. S. 651 295 Noddlebum, The, 28 Fed. 855 121,122 Nogueira v. New York, N. H. & H. R. Co., 281 U. S. 128 129 Norfolk & Western R. Co. v. North Carolina, 297 U. S. 682 458 Norris v. Alabama, 294 U. S. 587 372 Norris v. Montezuma Valley Irrigation District, 248 Fed. 369 543 North Chicago Rolling Mill Co. v. St Louis Ore & Steel Co., 152 U. S. 596 165 Northern Coal & Dock Co. v. Strand, 278 U. S. 142 129 Northern Pacific Ry. v. De- partment of Public Works, 268 U. S. 39 75 TABLE OF CASES CITED. XXXV Page. Northern Pacific Ry. v. North Dakota, 216 U. S. 579 378 North Pacific S. S. Co. ?>. Soley, 257 U. S. 216 184,186 Norton v. Rich, Fed. Cas. No. 10,352 466 Ogden v. Saunders, 12 Wheat. 213 540 O’Gorman & Young, v. Hartford Fire Ins. Co., 282 U. S. 251 83,625,628,634 Ohio Railroad Comm’n v. Worthington, 225 U. S. 101 174 Ohio Utilities Co. v. Utili- ties Commission, 267 U. S. 359 369 Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287 49,76,82,369 Oklahoma Operating Co. v. Love, 252 U. S. 331 82 Old Mission Portland Ce- ment Co. v. Helvering, 293 U. S. 289 79 Oliver v. Piatt, 3 How. 333 458 Oliver Iron Co. v. Lord, 262 U. S. 172 302 Olson v. Flavel, 34 Fed. 477 121, 122,129 Olson v. United States, 292 U. S. 246 345 Oregon R. & N. Co. v. Fairchild, 224 U. S. 510 369, 372 Oregon-Washington R. & N. Co. v. Strauss & Co., 73 F. (2d) 912 176 Osceola, The, 189 U. S. 158 120, 121,128,129 Ownbey v. Morgan, 256 U. S. 94 640 Ozark Pipe Line Corp. v. Monier, 266 U. S. 555 555- 557 Pacific Gas Co. v. San Francisco, 265 U. S. 403 378 Pacific Ry. Comm’n, In re, 32 Fed. 241 26,28,33 Page. Pacific States Box & Basket Co. v. White, 296 U. S. 176 83 Pacific S. S. Co. v. Peter- son, 278 U. S.130 119,120,121 Page Machine Co. v. Dow, Jones & Co., 238 Fed. 369 455 Palmer v. McCafferty, 15 Cal. 334 346 Panama R. Co. v. Johnson, 264 U. S. 375 119 Panama R. Co. v. Johnson, 289 Fed. .964 122 Pan American Petroleum Corp. v. Alabama, 67 F. (2d) 590 400,405 Panhandle Oil Co. v. Knox, 277 U. S.218 395,398,401,405 Passavant v. United States, 148 U. S. 214 79 Patterson v. Bark Eudora, 190 U. S. 169 628,634 Pecor v. Norton-Lilly Co., Ill Cal. App. 241 154 Pennsylvania v. West Virginia, 262 U. S. 553 287 Pennsylvania R. Co. v. Hughes, 191 U. S. 477 158 Pennsylvania R. Co. v. Mc- Girr’s Sons Co., 287 Fed. 334 175 People v. Successors of Laur-naga & Co., 32 P. R. 766 618 People ex rel. McLaughlin v. Cross Co., 361 Ill. 405 157 Perez v. Fernandez, 202 U. S. 80 440 Permutit Co. v. Refinite Co., 27 F. (2d) 695 458 Perry v. United States, 294 U. S. 330 528,531 Petersen Baking Co. v. Bryan, 290 U. S. 570 628 Peterson v. The Chandos, 4 Fed. 645 122 Phelps v. United States, 274 U. S. 341 367 Phillips v. Commissioner, 283 U. S. 589 49,77,369 XXXVI TABLE OF CASES CITED. Page. Pick Mfg. Co. v. General Motors Corp., 80 F. (2d) 641 140 Pierce v. Society of Sisters, 268 U. S. 510 288,339,547 Pipe Line Cases, 234 U. S. 548 175 Pittsburgh, C., C. & St. L. Ry. v. Backus, 154 U. S. 421 77 Pittsburgh S. S. Co. v. Palo, 64 F. (2d) 198 124 Plamals v. S. S. Pinar del Rio, 277 U. S. 151 121 Poe v. Seaborn, 282 U. S. 101 445 Pollock v. Farmers’ Loan & Trust Co., 157 U. S. 429; 158 U. S. 601 . 530 Pond v. Harwood, 139 N. Y. Ill 165 Premier-Pabst Sales Co. v. Grosscup, 298 U. S. 226 330, 540 Prendergast v. N. Y. Telephone Co., 262 U. S. 43 49, 369 Prentiss v. Atlantic Coast Line, 211 U. S. 210 356 Price v. Illinois, 238 U. S. 446 35 Price v. Noble, 4 Taunt. 123 489 Price v. United States, 269 U. S. 492 547 Procter & Gamble v. United States, 225 U. S. 282 438 Public Utilities Comm’n v. Attleboro Steam & Elec. Co., 273 U. S. 83 326 Pullman’s Car Co. v. Transportation Co., 171 U. S. 138 19,643 Quarles, In re, 158 U. S. 532 530 Quong Wing v. Kirkendall, 223 U. S. 59 629,630 Radice v. New York, 264 U. S. 292 83,625,630 Radio Corporation v. Lord, 28 F. (2d) 257 140,425 Rahrer, In re, 140 U. S. 545 540 Page. Railroad Commissioners v. Aberdeen & Rockfish R. Co., 144 I. C. C. 603 385 Railroad Retirement Board v. Alton R. Co., 295 U. S. 330 313,335 Ralli v. Troop, 157 U. S. 386 489 Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362 365 Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109 152 Reetz v. Michigan, 188 U. S. 505 77 Ribnik v. McBride, 277 U. S. 350 617,634 Riggs v. Pursell, 74 N. Y. 370 466 Riley v. Massachusetts, 232 U. S. 671 630,633 Rio Grande Irrigation Co. v. Gildersleeve, 174 U. S. 603 465 Risty v. Chicago, R. I. & P. Ry., 270 U. S. 378 404 Roberts v. Lewis, 144 U. S. 653 183,186,188 Roberts & Schaefer Co. v. Emmerson, 271 U. S. 50 413 Robinson v. Robins Dry Dock & Repair Co., 238 N. Y. 271 540 Rockefeller v. United States, 257 U. S. 176 . 445 Rodgers v. United States, 185 U. S. 83 414 Roebling’s (John A.) Sons Co. v. Erickson, 261 Fed. 986 122 Rogers v. Alemite Corpora- tion, 74 F. (2d) 1019 416 Rogers v. Brent, 10 Ill. 573 347 Rolette v. Rothstein Dental Laboratories, 289 U. S. 736 645 Ross v. Schooley, 257 Fed. 290 147 Rubber Co. v. Goodyear, 9 Wall. 788 453 St.. Joseph Stock Yards Co. v. United States, 298 U. S. 38 319,364, 367,372,389,392,477, 604 TABLE OF CASES CITED. XXXVII Page. St. Joseph Stock Yards Co. v. United States, 58 F. (2d) 290 50,55,85,363 St. Joseph Stockyards Co. v. United States, 11 F. Supp. 322 363 St. Louis, I. M. & S. Ry. v. Taylor, 210 U. S. 281 146 St. Louis & O’Fallon Ry. v. United States, 279 U. S. 461 75,76,359 San Diego Land & Town Co. v. Jasper, 189 U. S. 439 51, 74,80 San Fernando, The, v. Jack-son, 12 Fed. 341 489 Santa Anna Maria, The, 49 Fed. 878 491 Savage v. Jones, 225 U. S. 501 320 Sawyer v. Hoag, 17 Wall. 610 165 Scammon v. Kimball, 92 U. S. 362 165 Schechter Poultry Corp. v. United States, 295 U. S. 495 297,304,306,307, 309,311,316,327,337 Scheffler v. Moran Towing & Transp. Co., 68 F. (2d) 11 130 Schlemmer v. Buffalo, R. & P. Ry., 220 U. S. 590 146 Schmidinger v. Chicago, 226 U. S. 578 628 Schmidt v. Merchants Despatch Transp. Co., 270 N. Y. 287 639 Scott v. Armstrong, 146 U. S. 499 165 Seaboard Air Line Ry. v. Horton, 233 U. S. 492 119, 123, 130 Seaboard Air Line v. United States, 261 U. S. 299 366 Seattle Trust Co. v. Roberge, 278 U. S. 116 312 Second Employers’ Liability Cases, 223 U. S. 1 317 Page. 74, Ex parte, 58 I. C. C. 220 354 Sheppard v. Graves, 14 How. 505 183 Sherlock v. Alling, 93 U. S. 99 158 Shreveport Case, 234 U. S. 342 320,328 Sieber v. Frink, 7 Colo. 148 584 Silberschein v United States, 266 U. S. 221 76 Simonds v. White, 2 Barn. & Cress. 805 489 Sinking-Fund Cases, 99 U. S. 700 540 Skinner & Eddy Corp., Ex parte, 265 U. S. 93 18, 20,21,643 Skolar v. Lehigh Valley R. Co., 60 F. (2d) 893 130 Sligh v. Kirkwood, 237 U. S. 52 158 Sloss-Sheffield Steel & Iron Co. v. Louisville & N. R. Co., 30 I. C. C. 597 377 Smith v. Ajax Pipe Line Co., 298 U. S. 641 645 Smith v. Illinois Bell Tel. Co., 282 U. S. 133 371 Smith v. Mississippi, 162 U. S. 592 646 Smithson v. Atchison, T. & S. F. Ry., 174 Cal. 148 149 Smyth v. Ames, 169 U. S. 466 85,92 South Covington & C. St. Ry. v. Covington, 235 U. S. 537 158 Southern Pacific Co. v. Dar-nell-Taenzer Co., 245 U. S. 531 542 Southern Pacific Co. v. Henderson, 208 S. W. 561 147 Southern Pacific Terminal Co. v. Interstate Commerce Comm’n, 219 U. S. 498 175,177 Southern Ry. Co. v. King, 217 U. S. 524 640 Southern Ry. Co. v. United States, 222 U. S. 20 146 XXXVIII TABLE OF CASES CITED. Page. Southwestern Bell Tel. Co. v. Public Service Comm’n, 262 U. S. 276 71 Spokane County v. United States, 279 U. S. 80 549 Stafford v. Wallace, 258 U. S. 495 45,59,305 Standard Oil Co. v. United ' States, 283 U. S. 235 438 Standard Oil Co. v. United States, 179 Fed. 614 174 Standard Stock Food Co. v. Wright, 225 U. S. 540 640 Starr Piano Co. v. Auto Pneumatic Action Co., 12 F. (2d) 586 458 State v. Knott, 114 Fla. 95 550 State v. Montgomery, 228 Ala. 93 400,405 State v. Vaughan, 71 Conn. 457 464 State Corporation Comm’n v. Wichita Gas Co., 290 U. S. 561 49,369 State Railroad Tax Cases, 92 U. S. 575 . 80 States S. S. Co. v. Berglann, 41 F. (2d) 456 123,124 Steigleder v. McQuesten, 198 U. S. 141 184 Stell wagen v. Clum, 245 U. S. 605 542 Stettler v. O’Hara, 243 U.S. 629 624 Stevens v. O’Brien & Co., 62 F. (2d) 632 124 Stevenson v. St. Clair, 161 Minn. 444 618 Stickney v. Wilt, 23 Wall. 150 440 Storgard v. France & Canada S. S. Corp., 263 Fed. 545 122 Strang, Steel & Co. v. Scott & Co., L. R. 14 A. C. 601 489 Stratton v. St. Louis S. W. Ry., 282 U. S. 10 440 Stratton’s Independence v. Howbert, 231 U. S. 399 464 Strickler v. Colorado Springs, Iff Colo. 61 584 Page. Stromberg Motor Devices Co. v. Detroit Trust Co., 44 F. (2d) 958 453 Studley v. Boylston National Bank, 229 U. S. 523 165 Sturges v. Crowninshield, 4 Wheat. 122 531 Sugar From Key West, 112 I. C. C. 347 377 Sugar Institute v. United States, 297 U. S. 553 331,332 Surgess v. Cary, Fed. Cas. No. 13,572 489 Swift & Co. v. United States, 196 U. S. 375 305, 306 Swift & Co. v. United States, 276 U. S. 311 288 Tagg Bros. & Moorhead v. United States, 280 U. S. 420 45,49,51,56,73, 75, 109, 333, 369, 428, 434, 477 Tang Tun v. Edsell, 223 U. S. 673 77 Tarrance v. Florida, 188 U. S. 519 646 Terminal Railroad Assn. v. United States, 266 U. S. 17 356 Terminal Taxicab Co. v. District of Columbia, 241 U. S. 252 632 Terrace v. Thompson, 263 U. S. 197 288,339 Texas v. Interstate Commerce Comm’n, 258 U. S. 158 572 Texas v. White, 7 Wall. 700 295,528 Texas & New Orleans Ry. v. Northside Belt Ry., 276 U. S. 475 107 Texas & New Orleans Ry. v. Railway Clerks, 281 U. S. 548 317 Texas & New Orleans Ry. v. Sabine Tram Co., 227 U.S. Ill 17.5,176 Texas & Pacific Ry. v. Gulf, C. & S. F. Ry., 270 U. S. 266 107,110 Texas & Pacific Ry. v. Rigsby, 241 U. S. 33 146,147,152 TABLE OF CASES CITED. XXXIX Page. Thelusson v. Smith, 2 Wheat. 396 549 Tiffany, Ex parte, 252 U.S. 32 551 Tilghman v. Proctor, 125 U. S. 136 459 Topeka Laundry Co. v. Industrial Court, 119 Kan. 12 617 Towne v. Eisner, 245 U. S. 418 443 Trainor v. Baker, 89 N. Y. 460 464, 465, 466 Treat v. Los Angeles Gas & Electric Corp., 60 Cal. App. 466 154 Treat v. Los Angeles Gas & Electric Corp., 82 Cal. App. 610 154 Trinityfarm Construction Co. v. Grosjean, 291 U. S. 466 406 Troy Wagon Works v. Ohio Trailer Co., 274 Fed. 612 425 Turney v. Shriver, 269 Ill. 164 17 Tyler v. Judges, 179 U. S. 405 640 Tyler v. United States, 281 U. S. 497 289 Tyler County v. Town, 23 F. (2d) 371 543 Tyson & Bros. v. Banton, 273 U. S. 418 634 Underwood v. Gerber, 149 U. S. 224 425 Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113 212 Union Electric Welding Co. v. Curry, 279 Fed. 465 455 Union Pacific R. Co. v. Public Service Comm’n, 248 U. S. 67 372 Union Pacific R. Co. v. Weld County, 247 U. S. 282 404 Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194 209,210 Union Stock Yards Co. v. United States, 9 F. Supp. 864 50, 363 Page. United Fuel Gas Co. v. Public Service Comm’n, 278 U.S. 322 438 United Railways v. West, 280 U. S. 234 49, 369 United Shoe Machinery Co. v. United States, 258 U. S. 451 135, 137, 138, 140 United States v. Abilene & Southern Ry., 265 U. S. 274 7^ 359,370,477,478,480 United States v. Arizona, 295 U. S. 174 561, 570 United States v. Atlanta, B. & C. R. Co., 282 U. S. 522 438 United States v. Babcock, 250 U. S. 328 77 United States v. Baltimore & Ohio R. Co., 293 U. S. 454 359, 478, 480 United States v. Bennett, 232 U. S. 299 209 United States v. Boykin, 49 F. (2d) 762 124 United States v. Butler, 297 U. S. 1 292, 289, 531, 532 United States v. Butterworth-Judson Corp., 269 U. S. 504 552 United States v. California, 297 U. S. 175 538, 540 United States v. Columbus Marine Corp., 62 F. (2d) 795 224 United States v. Constantine, 296 U. S. 287 289, 531 United States v. Delaware & Hudson R. Co., 213 U. S. 366 499, 501, 503, 512 United States v. Delaware, L. & W. R. Co., 238 U. S. 516 499, 500, 501, 504 United States v. E. C. Knight Co., 156 U. S. 1 300 United States v. Erie R. Co., 280 U. S. 98 175 United States v. Ferger, 250 U. S. 199 334 United States v. Guaranty Trust Co., 280 U. S. 478 548 XL TABLE OF CASES CITED. Page. United States v. Hall, 131 U. S. 50 162 United States v. Hooe, 3 Cranch 73 552 United States v. Huckabee, 16 WaU. 414 440 United States v. Idaho, 298 U. S. 105 372 United States v. Illinois Central R. Co., 244 U. S. 82 438 United States v. J. H. Winchester & Co., 40 F. (2d) 472 224 United States v. Jones, 109 U S 513 79 United States v. Ju Toy, 198 U. S. 253 77 United States v. La Franca, 282 U. S. 568 289 United States v. Lehigh Val-ley R. Co., 220 U. S. 257 499 United States v. Lehigh Val-ley R. Co., 254 U. S. 255 499 United States v. Louisiana, 290 U. S. 70 328 United States v. Mack, 295 U. S. 480 547 United States v. Mayer, 235 U. S. 55 162,163,641,645 United States v. New River Co., 265 U. S. 533 358 United States v. New River Collieries Co., 262 U. S. 341 367 United States v. Northern Pacific Ry., 288 U. S. 490 49, 389, 433 United States v. Oklahoma, 261 U. S. 253 549,552 United States v. Phellis, 257 U. S. 156 445 United States v. Railroad Co., 17 Wall. 322 529 United States v. Reading Co., 253 U. S. 26 499,504 United States v. River Rouge Co., 269 U. S. 411 348 United States v. Stevenson, Fed. Cas. No. 16,395 466 United States v. The Peggy, 1 Cranch 103 539 Page. United States v. United Shoe Machinery Co., 247 U. S. 33 137,138 United States v. United Shoe Machinery Co., 264 Fed. 138 140 United States v. U. S. Steel Corp., 251 U. S. 417 503,505 United States v. Wampler, 10 F. Supp. 609 465 United States v. Weitzel, 246 U. S. 533 237 United States v. Worley, 281 U. S. 339 163 U. S. Shipping Board E. F. Corp. v. O’Shea, 55 App. D. C. 300 123,124 Uravic v. Jarka Co., 282 U. S. 234 129 Utah Power & Light Co. v. Pfost, 286 U. S. 165 303, 312, 321, 334 Valdarno, The, 11 F. (2d) 35 128 Vance v. Vandercook Co. (No. 2), 170 U. S. 468 183 Van Dyke v. Geary, 244 U. S. 39 84 Veazie v. Moor, 14 How. 568 298 Veazie v. Wadleigh, 11 Pet. 55 20 Violet Trapping Co. v. Grace, 297 U. S. 119 37 Virginia v. Imperial Coal Sales Co., 293 U. S. 15 213 Virginian Ry. Co. v. United States, 272 U. S. 658 51,76 Von Joel v. Hornsey, L. R. [1895] 2 Ch. 774 16 Vulcan Sheet Metal Co. v. North Platte Valley Irrigation Co., 220 Fed. 106 537 Wabash Valley Electric Co. v. Young, 287 U. S. 488 67 Wagner v. United States, 3 F. (2d) 864 464,465 Wagner Typewriter Co. v. Webster Co., 144 Fed. 405 425 Wall Pump & C. Co. v. Gardner Governor Co., 28 F. (2d) 334 425 TABLE OF CASES CITED. XLI Page. Walton v. Southern Pacific Co., 8 Cal. App. (2d) 290 150 Wanderer, The, 20 Fed. 140 122 Ward v. Erie R. Co., 230 N. Y. 230 147 Ware & Leland v. Mobile County, 209 U. S. 405 158 Warner v. Goltra, 293 U. S. 155 123 Washington v. Superior Court, 289 U. S. 361 640 Waver tree Sailing Ship Co. v. Love, L. R. (1897) A. C. 373 491 Webster v. Cooper, 10 How. 54 162 Weil v. Neary, 278 U. S. 160 465 Wells (W. L.) Co. v. Gas- tonia Cotton Co., 198 U. S. 177 184 Welton v. Missouri, 91 U. S. 275 298 Wenonah, The, 1 Hask. 606 121 West v. Chesapeake & Potomac Telephone Co., 295 U. S. 662 50, 367 Western Indemnity Co. v. Pillsbury, 170 Cal. 686 154 Western Paper Makers Chemical Co. v. United States, 271 U. S. 268 75 Westinghouse Electric Co. v. Wagner Electric Co., 225 U. S. 604 457, 458 West Ohio Gas Co. v. Public Utilities Comm’n, 294 U. S. 79 71 Wetmore v. Rymer, 169 U. S. 115 184 Page. Wheeler Lumber Co. v. United States, 281 U. S. 572 405,406 Wheeling Steel Corporation Assessment, In re, 115 W. Va. 553 205 White v. Johnson, 282 U. S. 367 162, 163 White River Co. v. Arkansas, 279 U. S. 692 641 Whitfield v. Ohio, 297 U. S. 431 540 Whitney v. California, 274 U. S. 357 641, 646 Willcutt & Sons Co. v. Driscoll, 200 Mass. 110 362 Williams v. Eggleston, 170 U. S. 304 362 Wilhams v. Great Southern Lumber C., 277 U. S. 19 348 Williams v. Standard Oil Co., 278 U. S. 235 312 Wilson, Ex parte, 114 U. S. 417 465, 467 Wilson v. Daniel, 3 Dall. 401 182 Wisconsin v. Illinois, 278 U. S. 367 570 Wisconsin Railroad Comm’n v. Chicago, B. & Q. R. Co., 257 U. S. 563 320, 328 Wolff Packing Co. v. Industrial Court, 262 U. S. 522 617 Wood v. Vandalia R. Co., 231 U. S. 1 377 Wyoming v. Colorado, 259 U. S. 419 566, 568 Young, Ex parte, 209 U. S. 123 , 285, 341 Zinnel v. U. S. Shipping Board E. F. Corp., 10 F. (2d) 47 124, 128 TABLE OF STATUTES Cited in Opinions (A) Statutes of the United States Page. 1872, June 1, c. 255,17 Stat. 196, 197............. 183 1874, June 9, c. 260,18 Stat. 64................... 128 1875, Mar. 3, c. 137, 18 Stat. 470, 472............. 187 1875, Mar. 3, c. 137, § 5, 18 Stat. 470............ 182 1887, Feb. 4, c. 104, §§ 1, 15, 24 Stat. 379, as amended.......... 351-392 1893, Mar. 2, c. 196, 27 Stat. 531.................. 145 1898, July 1, c. 541, 30 Stat. 544.................. 524 1903, Mar. 2, c. 976, 32 Stat. 943.................. 145 1906, June 29, c. 3591, 34 Stat. 584, 585....... 498 1908, Apr. 22, c. 149, 35 Stat. 65...... 99,128,149 1908, Apr. 22, c. 149, 35 Stat. 65, 66......... 131 1908, Apr. 22, c. 149, § 1, 35 Stat. 65........ 118 1910, June 18, c. 309, § 1, 36 Stat. 539....... 438 1910, June 18, c. 309, § 3, 36 Stat. 539......... 110 1910, Apr. 5, c. 143, 36 Stat. 291............ 149 1910, Apr. 14, c. 160, 36 Stat. 298............ 145 1913, Mar. 1, c. 92, 37 Stat. 701 ................. 391 1913, Oct. 3, c. 16, 38 Stat. 114............. 443 1913, Oct. 22, c. 32, 38 Stat. 208... 110,382,438 Page. 1913, Oct. 22, c. 32, 38 Stat. 208, 219....... 477 1914, Oct. 15, c. 323, § 3, 38 Stat. 730........ 132-140 1916, Sept. 8, c. 463, 39 Stat. 756............ 444 1918, Sept. 19, c. 174, 40 Stat. 960........ 603-636 1919, Feb. 24, c. 18, 40 Stat. 1057 ................ 444 1920, Feb. 28, c. 91, § 402, 41 Stat. 456........ 106 1920, June 5, c. 250, 41 Stat. 988, 1007......... 115,127 1920, June 5, c. 250, §§ 3, 4, 41 Stat. 988..... 119 1920, June 5, c. 250, § 33, 41 Stat. 988............ 118 1921, Aug. 15, c. 64, 42 Stat. 159 ...... 45,427,436,471 1921, Aug. 15, c. 64, § 306, 42 Stat. 159........ 439 1921, Aug. 15, c. 64, § 310, 42 Stat. 159. 439,473,481 1921, Aug. 15, c. 64, § 316, 42 Stat. 159.... 438,477 1921, Nov. 23, c. 136, § 201 (d), 42 Stat. 227.... 444 1922, Sept. 21, c. 369, § 6 (b), 42 Stat. 998.. 234-237 1924, May 26, c. 190, § 20, 43 Stat. 153........ 222 1924, June 2, c. 234, § 201 (f), 43 Stat. 253____444 1924, June 7, c. 355, § 2, 43 Stat. 659............ 100 1925, Feb. 13, c. 229, 43 Stat. 936........ 638,644 XLIII XLIV TABLE OF STATUTES CITED. Page. 1926, Feb. 26, c. 27, § 201 (f), 44 Stat. 9........444 1926, July 2, c. 723, § 2, 44 Stat. 790.............. 98 1928, May 29, c. 852, §§111 (a), 113, 45 Stat. 791................... 446 1928, May 29, c. 852, § 115 (f), 45 Stat. 791.. 443,444 1928, Dec. 21, c. 42, 45 Stat. 1057................. 560 1928, Dec. 21, c. 42, § 1, 45 Stat. 1057.. 561,565,569 1928, Dec. 21, c. 42, § 4 (a), 45 Stat. 1057....... 571 1928, Dec. 21, c. 42, § 5, 45 Stat. 1057.. 564,569,571 1928, Dec. 21, c. 42, §§ 6, 8 (a), 45 Stat. 1057.. 569 1930, June 10, c. 436, 46 Stat. 531............ 158 1930, June 10, c. 436, § 15, 46 Stat. 531........ 159 1932, June 6, c. 209, § 115 (f), 47 Stat. 169.... 444 1933, Mar. 3, c. 204, § 68 (a) ,47 Stat. 1467.... 163 1933, Mar. 3, c. 204, § 77, 47 Stat. 1467.... 161,536 1933, Mar. 3, c. 204, § 77 (c) (7), 47 Stat. 1467 ......•.......... 164 1933, Mar. 31, c. 3, §§ 4, 7, 48 Stat. 9........... 97 1933, May 27, c. 38, 48 Stat. 74................ 9 1933, May 27, c. 38, § 2 (4), 48 Stat. 74..... 10 1933, May 27, c. 38, § 5 (a), 48 Stat. 74......... 10,18 1933, May 27, c. 38, § 6 (a), 48 Stat. 74......... 10,12 1933, May 27, c. 38, § 8 (a), (d) , 48 Stat. 74.. 10,12,15 1933, May 27, c. 38, § 8 (e), 48 Stat. 74........ 11,29 1933, May 27, c. 38, § 12, 48 Stat. 74.......... 30 1933, May 27, c. 38, § 19 (b) , 48 Stat. 74.... 11, 25,29,30 1933, May 27, c. 38, § 22 (b), 48 Stat. 74....... 11 Page. 1933, May 27, c. 38, § 22 (c), 48 Stat. 74.... 31 1933, May 27, c. 38, § 24, 48 Stat. 74........ 18,30 1934, May 10, c. 277, § 115 (f), 48 Stat. 680.... 444 1934, May 24, c. 345, §§ 78, 79, 80, 48 Stat. 798.. 523, 524, 534 1934, June 6, c. 404, 48 Stat. 881.............. 9 1934, June 6, c. 404, § 210, 48 Stat. 881........ 10 1934, June 7, c. 424, § 77 B, 48 Stat. 911........536 1935, Aug. 12, c. 510, § 2, 49 Stat. 607........ 98 1935, Aug. 30, c. 824, 49 Stat. 991....... 278-341 1936, Apr. 10, c. 186, 49 Stat. 1198..... 523, 535 Constitution. See Index at end of volume. Judicial Code. § 24 (1)........... 179,182 § 24 (28).............. 358 § 37.............. 182,186 § 57.................. 187 § 237 (a)......... 638,644 § 237 (c).......... 638,645 • § 238............. 132,408 § 239............. 161,463 § 266................. 173 § 269 ............ 343,347 Revised Statutes. § 914.................. 183 §§ 1041, 1042 ......... 463 § 3466............. 547,551 § 4919 ................ 450 § 4921............. 450,459 U. S. Code. Title 5, § 517..........478 Title 6, §§ 1-11...... 547 Title 7, c. 9 .......... 427,436 §§ 181-229.... 45,471 § 207 ........... 439 § 211........ 439,473 § 217......... 45, 438, 472, 477 §§ 499a-499r.... 158 Title 8, § 167 (a)......222 TABLE OF STATUTES CITED. XLV Page. U. S. Code—Continued. Title 11, § 108........... 163 § 205........... 161 § 207 .......... 536 §§ 301, 302, 303.. 523, 534 Title 15, § 14............. 132 § 77a.............. 9 Title 18, §§ 569, 641... 463 Title 28, §41 (1)...... 179,182 § 41 (8), (27).... 438 § 41 (28)....... 351, 358, 438 §§ 44-46 ........ 351 § 47 ..... 45, 438, 472 § 47 (a)..........353 § 80............ 182 § 118........... 187 § 230........... 169 § 250 (1)........ 490 § 262........... 488 § 345.......... 395 § 346...... 161,463 § 380....... 173,179 § 391........... 347 § 724........... 183 Page. U. S. Code—Continued. Title 35, § 57.............. 450 § 70 ......... 450,459 Title 38, §§ 111, 114, 115.. 97 § 450 ............. 98 Title 45, c. 1, §§ 22-34.... 100 c. 2, §§ 51-59.... 99 §§ 1-16............ 145 § 8................ 146 .§,§ 22-34......... 150 § 51............... 118 §§ 51-59.......... 149 § 53.......... 119, 131 § 54.............. 119 §§ 56-59.......... 149 Title 46, §§ 544, 563....... 128 § 688.... 155, 118, 127 §§ 701-713........ 128 Title 49, § 1........... 174-177 § 1 (8)....... 498,499 § 45...............499 (B) Statutes of the States and Territories Alabama. Constitution, § 14.....403 1923 Gen. Acts, p. 36, Act of July 10.. 395-404 1927 Gen. Acts, p. 16, Act of Jan. 25 ......... 395-404 p. 326, Act of Aug. 27.......... 395-404 p. 635, Act of Sept. 9........... 395-404 1931 Gen. Acts, p. 527, Act of July 17.......... 395-404 p 859, Act of July 27 ......... 395-404 1932 Gen. Acts, p. 314, Act of Nov. 5., 395-404 Alabama—Continued. 1935 Gen. Acts, p. 30, Act of Jan. 31......... 395M04 p. 508, Act of July 10......... 395-404 Arizona. 1923 Laws, c. 3, § 1.. 617 1935 Laws, c. 17.......540 Arkansas. 1935 Acts, Acts Nos. 16 and 325.......... 36,37 Crawford & Moses Di- . gest, § 7108........ 617 California. 1929 Stats., c. 16, p. 38, Act. of Mar. 4.. 560,564 1934 Laws (Extra Sess.) c. 4............... 540 XLVI TABLE OF STATUTES CITED. Page, California—Continued. Deering’s Gen. Laws, Vol. II, pp. 2276-7, § 6... 152 р. 2316, § 69..... 153 Florida. 1933 Laws, e. 15878.......... 540 с. 16248 ......... 546 Gen. Laws, § 6302 ....... 545, 548 § 6303 ........... 545 Illinois. Cahill’s Stats., c. 5, §§ 24-32 ............... 156 Smith-Hurd’s Stats., c. 5, §§ 17-24.......... 156 Indiana. 1935 Acts, c. 231.. 179,191 Massachusetts. Gen. Laws, c. 63, §§ 39-43................ 554 New Mexico. 1935 Laws, c. 56............. 408 c. 136............ 409 New York. 1933 Laws, c. 584.. 603-636 Page. New York—Continued. Consolidated Laws, c. 31, Art. 19 ..... 603-636 Ohio. 1934 Laws (2d Special Sess.), No. 77....... 540 Pennsylvania. 1935 Acts, Act No. 398 of July 18....... 234-237 50 P. S., §§ 941 et< seq .................. 96 Texas. Constitution, Art. 3, § 52....... 527 Art. 16, § 59a......527 1935 Acts, Act of Apr. 27................ 527 Virginia. . 1930 Code, §§ 5049, 5051 ................. 34 West Virginia. Code, c. 11, Art. 3, §§ 12, 13, 15.............. Art. 5, § 1........ Art. 6, § 2........ Art. 12, § 71...... Art. 12, § 71.......204 Code, c. 31, Art. 1, §79 . 204 (C) Foreign Statutes English. 4 Anne, c. 17, § 11.... 163 5 Geo. II, c. 30, § 28.. 163 39-40 Viet., c. 80, § 5. 122 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1935. JONES v. SECURITIES & EXCHANGE COMMISSION. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 640. Argued March 10, 11, 1936.—Decided April 6, 1936. 1. The day before a registration statement filed with the Securities and Exchange Commission would have become “effective” under the Securities Act of 1933, as amended, the Commission began a proceeding under § 8 (d) of the Act challenging the truth and sufficiency of the statement and notified the registrant to appear at a hearing some weeks later and show cause why a stop order should not issue suspending its effectiveness. Thereafter, the Commis-sion’s subpoena was served on the registrant commanding him to appear and testify and bring designated books and papers. The registrant then gave formal notice that his statement was withdrawn and submitted motions to quash the subpoena, which he declined to obey, and to dismiss the proceeding. The Commission, however, persisted in the investigation and obtained from the District Court, under § 22 (b) of the Act, an order requiring the registrant to appear before the Commission and answer questions. Held: (1) That the stop order proceeding was analogous to a suit for an injunction; so that, while it was pending, the effectiveness of the registration statement was suspended and the registrant, if he acted under it, would act at his peril. P. 15. (2) Arbitrary power to forbid withdrawal of such statements is not conferred upon the Commission by the statute. P. 18. (3) The power of the Commission to prevent withdrawal is no greater than that of the courts to prevent dismissal by a plaintiff of his complaint at law or bill in equity. P. 18. 65773°—36--1 1 2 OCTOBER TERM, 1935. Syllabus. 298 U.S. (4) A rule of the Commission declaring that any registration statement may be withdrawn “if the Commission consents” and that such consent shall be given “with due regard to the public interest and the protection of investors” implies that withdrawal of a statement not as yet effective is of right if no prejudice will result to the public or to investors. P. 21. (5) The filing of a registration statement under the Securities Act is in effect an ex parte application for a license to use the mails and the facilities of interstate commerce for the purposes recognized by the Act. Withdrawal of the application before it has become effective can not affect any right of the general public, nor can it be said to prejudice investors, when, as in this case, no step towards the issuance of the securities sought to be registered has been taken and no investor, actual or potential, in such securities, is shown to exist. P. 22. (6) The registrant’s right to withdraw his statement was unqualified; and the Commission’s proceeding, limited to the purpose of determining whether the effectiveness of the statement should be suspended, was terminated by the withdrawal. P. 23. (7) After the withdrawal, no authority for the enforcement of the subpoena could be exercised by court order under § 22 (b) of the Act. P. 23. (8) The stop order proceeding, having been ended by the withdrawal, could afford no basis for continuing the inquisition under a general power claimed by the Commission under § 19 (b). P. 25. 2. After a defendant has been notified of the pendency of a suit seeking an injunction against him, even though a temporary injunction be not granted, he acts at his peril and subject to the power of the court to restore the status quo ante, wholly irrespective of the merits as they may be ultimately adjudged. P. 15. 3. In the federal tribunals a plaintiff has the unqualified right, unless otherwise provided by a specific rule of court, to dismiss his complaint at law or bill in equity, if no plain legal prejudice will result to the defendant other than the mere prospect of a second litigation upon the same subject matter. P. 19. 4. To the extent that the mere will of an official or of an official body is permitted to take the place of allowable official discretion, or to supplant the standing law as a rule of conduct, the Government ceases to be one of laws and becomes an autocracy. The courts, in the performance of their duties, must be ever vigilant to detect and turn aside this danger at its beginnings. P. 23. JONES v. SECURITIES COMMISSION. 3 1 Argument for Respondent. 5. Arbitrary power and the rule of the Constitution can not both exist. Our institutions must be kept free from all assumptions of such power, whether by the three primary departments of the Government or by lesser agencies. P. 24. 6. An official inquisition to compel disclosures of fact is not an end, but a means to an end; and it is a mere truism to say that the end must be a legitimate one to justify the means. P. 25. 7. A citizen, when interrogated about his private affairs, has a right before answering to know why the inquiry is made; and if the purpose disclosed is not a legitimate one, he may not be compelled to answer. P. 25. 8. An investigation not based upon specified- grounds is quite as objectionable as a search warrant not based upon specific statements of fact. Such an investigation, or such a search, is unlawful in its inception and can not be made lawful by what it might bring, or by what it actually brings, to light. P. 27. 9. The philosophy that constitutional limitations and legal restraints may be brushed aside upon the plea that good, perchance, may follow, finds no countenance in the American system of government. P. 27. 10. The constitutionality of the Securities Act of 1933 is not considered in this case. P. 28. 79 F. (2d) 617, reversed. Certiorari, 297 U. S. 699, to review the affirmance of an order of the District Court, 12 F. Supp. 210, requiring the present petitioner to appear and testify before the Securities & Exchange Commission. Messrs. Harry 0. Glasser and James M. Beck, with whom Messrs. Bainbridge Colby, J. N. Saye, and H. I. Fishbach were on the brief, for petitioner. Mr. John J. Burns, General Counsel, Securities & Exchange Commission, and Solicitor General Reed, with whom Messrs. Charles E. Wyzanski, Jr., and Alger Hiss were on the brief, for respondent. The registration statement filed by the petitioner became effective by operation of law despite petitioner’s attempts to withdraw it. The Commission properly 4 OCTOBER TERM, 1935. Argument for Respondent. 298 U.S. refused to permit withdrawal pursuant to a valid regulation which is authorized both by § 19 (a) of the Act and by the inherent power of the Commission, as a quasijudicial tribunal, to limit the right of petitioner to terminate the proceedings before the Commission. In effect, the regulation merely imposes a reasonable condition upon the right of the registrant to terminate the orderly procedure which he has set in motion by the filing of his registration statement. Analogous rules regulating the voluntary dismissal of bills of complaint have long been familiar in courts of equity. In the federal practice, the complainant must move for an order of dismissal and let the court fix the terms. American Zylonite Co. v. Celluloid Manufacturing Co., 32 Fed. 809. And a local equity rule which allows the court to refuse a plaintiff permission to discontinue his action where justice so requires, even though the defendant can not have affirmative relief under the pleadings and though his only prejudice is a possible second suit, has been adjudged valid. Bronx Brass Foundry n. Irving Trust Co., 297 U. S. 230; Young v. Southern Pacific Co., 25 F. (2d) 630. Irrespective of the rule which may be applicable if no regulation of the complainant’s right to withdraw exists (see Ex parte Skinner & Eddy Corp., 265 U. S. 86), a regulation limiting that right is procedural and within the power of a quasijudicial tribunal such as the respondent. The standard applied in this regulation—“with due regard for the public interest and the protection of investors”—is consonant with the spirit and purpose of the whole Act, and some limitation on the right of a registrant to withdraw is necessary for the effective administration of the Act. It is obvious that a registration statement ceases to be effective upon withdrawal, and can thus be no longer the subject of a stop order hearing, which can only result in an order suspending the effectiveness of the statement. JONES v. SECURITIES COMMISSION. 5 1 Argument for Respondent. To allow a registrant an unqualified privilege of withdrawal, with the consequent ability to terminate any stop order hearing or to prevent such a hearing, would seriously embarrass the work of the Commission. Such a broad privilege would permit the registrant to avoid, in large part, the registration requirements of the Act, by filing a registration statement with such limited information as he chose to give, withdrawing it when its deficiencies were detected, and repeating the process ad infinitum in the hope that by perseverance he might escape the vigilance of the examiner. Of even greater significance is the fact that stop order hearings in regard to particular registration statements, and the final orders and opinions based thereon, constitute the most effective of the methods by which the Commission is to insure the accuracy and completeness of registration statements in general. The Commission may, it is true, investigate pursuant to § 19 (b), and if it finds that the matters set out in the registration statement are false or incomplete, it may enjoin the continuance of this violation, or recommend criminal prosecution if the violation be willful. These, however, are extraordinary remedies requiring resort to the courts; they are not to be lightly undertaken and are to be used only in exceptional cases. The publication of this regulation satisfied the requirements of § 19 (a) of the Act and was clearly adequate to give reasonable notice of its promulgation. Petitioner does not claim he was ignorant of the regulation. The Act does not improperly delegate legislative power to the Commission, for the power to regulate the minutiae of its own procedure may certainly be delegated to a quasijudicial tribunal. The regulation was properly applied in this case, for the Commission was not required to find that its refusal to permit withdrawal of the statement was in the public in- 6 OCTOBER TERM, 1935. Argument for Respondent. 298 U.S. terest and for the protection of investors. Such a finding is a preliminary determination of fact resting in the discretion of the Commission; no principle of law requires a finding by a court or an administrative tribunal prior to the application of an interlocutory procedural regulation. It follows that petitioner’s registration statement is still effective, and the stop order hearing thereon, in which the petitioner was subpoenaed to testify, is still pending before the Commission. Sections 8 (d) and 8 (e) of the Act expressly authorize subpoenas duces tecum in such a hearing, so that the less onerous subpoena ad testificandum must also be authorized. This follows, too, from» the finality attributed to the findings of the Commission on review by a Circuit Court of Appeals (§9). Even though the Commission may issue a stop order if the issuer refuses to testify, this is not the only remedy available, for such a construction would work an injustice in some cases. In any event, § 8 is implemented by § 19 (b), expressly authorizing subpoenas in all investigations necessary for the enforcement of the Act. Petitioner’s claim that the Commission is engaged on a “fishing expedition” is rebutted by the notice of the stop order hearing, specifying in detail the items in the registration statement on which information is desired, and by the order of the District Court, requiring petitioner to testify only as to pertinent matters. For purposes of determining the validity of the present order the only section which is material is § 5 (a). Since petitioner did not wait for specific questions to be put to him, but flatly refused to appear before the Commission, he must demonstrate that there is no question which the Commission validly might ask concerning his registration statement. Bevan v. Krieger, 289 U. S. 459, 465; Blair v. United States, 250 U. S. 273. Similarly, to sustain the validity of the present order, the Commission need only show that there is some purpose for which the Commis- JONES v. SECURITIES COMMISSION. 7 1 Argument for Respondent. sion can validly require that petitioner appear before the Commission for questioning upon matters contained in his registration statement. An analysis of § 5 (a) reveals that the section does not purport to require registration of a security as a condition precedent to every transaction concerning that security. Registration is required as a condition precedent only to such transactions relating to the sale of the security as involve (1) the use of the mails; (2) the use of means or instruments of transportation in interstate commerce; and (3) the use of means or instruments of communication in interstate commerce. It is plain that if the Congress has constitutional power to require registration as a condition precedent to any one of these courses of action, the requirement as applied to petitioner is valid. It is further evident that if registration may properly be required, reasonable examination of registrants in connection with such registration is lawful. Interstate Commerce Comm’n v. Brimson, 154 U. S. 447 ; Interstate Commerce Comm’n v. Baird, 194 U. S. 25, 42. The postal power of Congress is a plenary one and under it Congress has wide discretion as to the matter which shall be carried and that which shall be excluded from the mails. This power is not limited to excluding only that matter which might be injurious to the postal service or personnel, for in numerous cases this Court has sustained statutes excluding from the mails matter deemed injurious to the public, such as lottery tickets, obscene matter, and communications in furtherance of a scheme to defraud. Ex parte Jackson, 96 U. S. 727 ; Ex parte Rapier, 143 U. S. 110; Badders v. United States, 240 U. S. 391; United States v. Chase, 135 U. S. 255; Public Clearing House v. Coyne, 194 U. S. 497, 508; Homer v. United States, 143 U. S. 207, 570; Coomer v. United States, 213 Fed. 1; U. S. ex rel. Milwaukee Publishing Co. v. Burleson, 255 U. S. 407. The requirements 8 OCTOBER TERM, 1935. Argument for Respondent. 298 U.S. of § 5 in issue in the present case are another instance of the exercise of the established power of Congress to close the mails to matter which it deemed contrary to the public welfare, and are thus amply sustained by these cases. Congress may exclude securities which themselves contain misstatements. Congress may also exclude such securities if they are an integral part of a scheme to defraud. Further, Congress may require registration of all securities since this is reasonably necessary to make effective the exercise of its regulatory power. Finally, that the Act will not bar from the mails all harmful securities is no objection to its validity; Congress may certainly limit the exercise of its power to the particular type of evil here involved, namely, the failure to disclose the true character of securities. Petitioner contends that § 5 (a) of the Act conflicts with the Tenth Amendment. This Court has, however, several times pointed out that Congress need not have power to deal with crime or immorality within the States in order to forbid the use of the mails in furthering such activities. Nor does the Act, as petitioner contends, apply to persons rather than to objects mailed, although even if it be so construed, its constitutionality is clearly sustained by previous decisions of this Court. Petitioner’s final contention that a requirement of registration violates the due process clause of the Fifth Amendment is unsound, for such a requirement in state securities acts has frequently been sustained by this Court, and a substantially similar requirement was upheld in connection with the power of Congress to classify mailable matter. In support of its contention that the registration provisions of the Securities Act are a valid exercise of the commerce power of Congress, respondent submits that (1) securities are subjects of commerce, and (2) a prohibition against the interstate transportation of unregistered securities is within the regulatory power of Congress. JONES v. SECURITIES COMMISSION. 9 1 Opinion of the Court. Securities are “subjects of commerce” not only because they are so treated by ordinary business usage and state legislation, but also because they comply with the applicable legal standards formulated in the Lottery Case, 188 U. S. 321, and the insurance cases. Cf. New York Life Ins. Co. v. Deer Lodge County, 231 U. S. 495, 508; Paul v. Virginia, 8 Wall. 168, 183; International Textbook Co. v. Pigg, 217 U. S. 91. If they are transported across state lines without being truthfully described they may injure persons in the State of destination. The prevention of the spread of evil across state lines and the prohibition against the use of the facilities of interstate commerce as an agency to promote dishonesty are shown by prior decisions to be within the scope of congressional regulatory power. Lottery Case, 188 U. S. 321; Hipolite Egg Co. v. United States, 220 U. S. 45; Brooks v. United States, 267 U. S. 42; Caminetti v. United States, 242 U. S. 470. Since in the Securities Act the regulatory power has been used merely to require a disclosure of the character of subjects carried and not to affect their local production, the Act does not fall within the prohibition of the Tenth Amendment nor of Hammer v. Dagenhart, 247 *U. S. 251. The particular form of securities regulation involved in registration has already been held to afford due process in the substantially similar field of state Blue Sky legislation. See Caldwell v. Sioux Falls Stock Yards Co., 242 U. S. 559; Merrick v. Halsey & Co., 242 U. S. 568; cf. Hall v. Geiger-Jones, 242 U. S. 539. Mr. Justice Sutherland delivered the opinion of the Court. This case arises under “The Securities Act of 1933,” c. 38, 48 Stat. 74, U. S. C. Title 15, § 77a et seq., as amended by act of June 6, 1934, c. 404, 48 Stat. 881. Prior to the 10 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. amendment, the act was administered by the Federal Trade Commission; but by § 210, 48 Stat. 908, the administration was transferred to the respondent. The act, § 2 (4), defines the term “issuer” as including every person who issues or proposes to issue any security, with certain exceptions. Section 6 (a) of the act provides—“Any security may be registered with the Commission under the terms and conditions hereinafter provided, by filing a registration statement in triplicate, at least one of which shall be signed by each issuer . . .” The filing of the registration statement must be accompanied by the payment to the commission of a fee measured by the maximum aggregate price at which the securities are to be offered. The information contained in the statement is to be made available to the public under such regulations as the commission may prescribe. The act prescribes in detail the character of information which is to be set out in the statement. Elaborate provisions are made in respect of liability on account of false registration statements, etc., and penalties are imposed for willful violations of any of the provisions of the act, or the rules and regulations promulgated by the commission under authority thereof, and for willfully untrue statements of material facts or omissions to state material facts. Section 5 (a) provides that unless a registration statement is in effect as to a security, it shall be unlawful for any person directly or indirectly to make use of the instrumentalities of interstate commerce or of the mails to sell or offer to buy such security, etc., or to transport any such security for sale or for delivery after sale. “Sec. 8 (a) The effective date of a registration statement shall be the twentieth day after the filing thereof, except as hereinafter provided, . . . “(d) If it appears to the Commission at any time that the registration statement includes any untrue statement of a material fact or omits to state any material fact JONES v. SECURITIES COMMISSION. 11 1 Opinion of the Court. required to be stated therein or necessary to make the statements therein not misleading, the Commission may, after notice by personal service or the sending of confirmed telegraphic notice, and after opportunity for hearing (at a time fixed by the Commission) within fifteen days after such notice by personal service or the sending of such telegraphic notice, issue a stop order suspending the effectiveness of the registration statement. ... “(e) The Commission is hereby empowered to make an examination in any case in order to determine whether a stop order should issue under subsection (d). In making such examination the Commission or any officer or officers designated by it shall have access to and may demand the production of any books and papers of, and may administer oaths and affirmations to and examine, the issuer, underwriter, or any other person, in respect of any matter relevant to the examination, and may, in its discretion, require the production of a balance sheet exhibiting the assets and liabilities of the issuer, or its income statement, or both, to be certified to by a public or certified accountant approved by the Commission. If the issuer or underwriter shall fail to cooperate, or shall obstruct or refuse to permit the making of an examination, such conduct shall be proper ground for the issuance of a stop order.” Section 19 (b) provides that for the purpose of all investigations which the commission think necessary and proper for the enforcement of the act, any member of the commission or any designated officer may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of books, papers, etc. Section 22 (b) provides that in case of contumacy or refusal to obey a subpoena issued [by authority of the commission] to any person, the district courts of the United States and others named, upon application by the commission, may issue to such person an order requiring him to appear 12 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. before the commission or one of its examiners, and there produce documentary evidence and give evidence touching the matter in question. May 4, 1935, petitioner filed with the commission a registration statement in pursuance of § 6 (a) of the act, covering a proposed issue of participation trust certificates. This registration statement under the terms of the act was to become effective 20 days later. On the 19th day, however, the commission, having already directed that stop-order proceedings be instituted, pursuant to § 8 (d), sent petitioner a telegraphic notice reciting that the registration statement appeared to contain untrue statements of material facts and to omit material facts required and necessary and fixing a hearing at the office of the commission for Thursday, June 6, 1935, “at which time and place registrant may appear and show cause why a stop order should not be issued suspending the effectiveness of such registration statement.” The hearing was postponed until June 18th. On June 13, a subpoena duces tecum was issued commanding petitioner to appear before an officer of the commission on the 18th to testify with respect to his registration statement and to bring with him designated books, records and papers, listed as follows: “General ledger, subsidiary ledgers, journal, cash book, books of account and financial statements of J. Edward Jones; general ledger, journal, cash book and books of account of J. Edward Jones relating to J. Edward Jones Royalty Trust, Series ‘M’; all contracts, agreements and correspondence of J. Edward Jones relating to the distribution of Participation Trust Certificates in J. Edward Jones Royalty Trust, Series ‘M’; all correspondence and communications of J. Edward Jones with any State authority relating to the distribution of Participation Trust Certificates in J. Edward Jones Royalty Trust, Series ‘M.’ ” JONES v. SECURITIES COMMISSION. 13 1 Opinion of the Court. June 18, in a written communication to the commission, petitioner formally withdrew his application for registration, assigning as a reason, among others, that the commission’s action had been given widespread publicity and placed him in a situation to be severely damaged. The same day, his counsel appeared before the examiner for the commission and presented this written withdrawal, which was marked for identification, but excluded from consideration. On June 27, counsel for pe-tioner appeared again before the examiner, and filed a dismissal signed by petitioner dismissing “his registration statement heretofore filed” and withdrawing “all application for consideration thereof or action thereon.” At the same time, petitioner’s counsel filed a motion to dismiss and for an order from the commission permitting the withdrawal of the registration statement and dismissing the registration proceeding and all matters pertaining thereto at petitioner’s cost, and also a motion to quash the subpoena which had been issued and served on petitioner. The examiner acting for the commission denied the motions and refused to allow the withdrawal, no reason for his action being assigned. In so doing, the commission and its examiner assumed to act under and in conformity with a regulation of the commission which provides as follows: “Any registration statement or any amendment thereto may be withdrawn upon the request of the registrant if the Commission consents thereto. The fee paid upon the filing of such registration statement shall not be returned to the registrant. The papers comprising the registration statement or amendment thereto shall not be removed from the files of the Commission but shall be plainly marked with the date of the giving of such consent and in the following manner: ‘Withdrawn upon the Request of the Registrant, the Commission consenting 14 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. thereto.’ Such consent shall be given by the Commission with due regard to the public interest and the protection of investors.” On June 28th, petitioner filed with the court below a petition asking for a review of the commission’s rulings which that court dismissed for lack of jurisdiction. A petition for a writ of certiorari to review that action was denied by this court. 297 U. S. 705. July 3, 1935, the commission filed an application in a federal district court for an order requiring petitioner to appear before the examiner to give evidence in the matter of petitioner’s registration statement. Petitioner appeared and challenged, among other things, the validity of the orders of the commission denying petitioner’s right to withdraw his registration statement, overruling his motions to withdraw and dismiss the proceedings and refusing to quash the subpoena which had been issued and served on petitioner. The district court denied petitioner’s contentions and entered an order directing him to appear before the commission at a time and place fixed, to testify in the matter of the registration statement and to answer all pertinent questions regarding the information and documents filed by him with the commission in respect of such statement. 12 F. Supp. 210. On appeal, the court of appeals affirmed this order. 79 F. (2d) 617. The principal points urged by petitioner as ground for reversing the judgment below, and the only ones that need be stated, are as follows: That the commission was bound as matter of law to sustain petitioner’s withdrawal of and motion to withdraw the registration statement; that the right to withdraw such statement under the circumstances disclosed was unqualified; that the commission, therefore, was without authority to require petitioner to appear and testify or to submit his private books, records, and papers for the inspection of the com- JONES v. SECURITIES COMMISSION. 15 1 Opinion of the Court. mission; that the Securities Act is unconstitutional, because it constitutes an attempt to exercise powers reserved to the states; and that it finds no warrant in either the commerce clause or in the power to regulate the use of the mails under the constitutional authority to establish post offices and post roads, or in any other provision of the federal Constitution. First. By § 8 (d), when it appears to the commission that any untrue statement of a material fact has been made in the registration statement, or material facts have been omitted which are required or necessary to make the statements therein not misleading, the commission may institute an inquiry to determine whether a stop order shall issue suspending the effectiveness of the registration statement. Proceeding under that section, as we have seen, the commission, before the registration statement was to become effective by the terms of § 8 (a), directed that a stop-order proceeding be instituted, and caused to be served on petitioner a telegraphic notice fixing a time for him to “appear and show cause why a stop order should not be issued suspending the effectiveness of such registration statement.” Such a proceeding is analogous to a suit in equity to obtain an injunction, and should be governed by like considerations. Applying those considerations, then, what was the status of the registration statement pending the inquiry under § 8 (d)? Notwithstanding the provision of § 8 (a), that the effective date of a registration statement shall be the twentieth day after it is filed, did this intervening action of the commission nevertheless have the effect of suspending the effective operation of the statement pending the hearing and determination of the stop-order proceeding? We are of opinion that it did have that effect. The rule is well settled, both by the courts of England and of this country, that where a suit is brought to enjoin certain acts or activities, for example, 16 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. the erection of a building or other structure, of which suit the defendant has notice, the hands of the defendant are effectually tied pending a hearing and determination, even though no restraining order or preliminary injunction be issued. We briefly review some of the decisions. In Daniel v. Ferguson, L. R. [1891] 2 Ch. 27, suit had been brought to restrain defendant from building so as to darken plaintiff’s lights. Notice of motion for a temporary injunction to be made upon a designated future day was served on the defendant. After receiving notice, the defendant put on a large number of men and proceeded with his building, running a wall up to a height of about 39 feet from the ground before the injunction was granted. The court, without regard to the ultimate rights of the parties, held that the wall thus run up by defendant should be tom down at once, as an attempt to anticipate the order of the court. A like situation was presented in Von Joel v. Hornsey, L. R. [1895] 2 Ch. 774. In that case, the evidence showed that defendant had repeatedly evaded attempts to serve him with process, and in the meantime had gone on with the building. Again, without regard to the ultimate rights of the parties, the court directed defendant to pull down that part of the building thus erected. The Supreme Court of Pennsylvania in several cases has followed the same rule. Clark v. Martin, 49 Pa. 289, 298-299; Easton Passenger Ry. Co. v. Easton, 133 Pa. 505, 519; 19 Atl. 486; Cooke v. Boynton, 135 Pa. 102; 19 Atl. 944; Meigs v. Milligan, 177 Pa. 66, 72, 76; 35 Atl. 600; Fredericks v. Huber, 180 Pa. 572, 575; 37 Atl. 90. In Cooke v. Boynton, a bill in equity had been filed praying for a preliminary and perpetual injunction preventing defendants from interfering with a certain tramway of the plaintiff. Before a preliminary injunction was obtained, the defendants, on three separate occasions, had JONES v. SECURITIES COMMISSION. 17 1 Opinion of the Court. torn up the track which the plaintiffs had replaced. The ' third incident occurred while plaintiff was obtaining a preliminary injunction. The court said, “The writ was served just as they had finished the work of demolition, and this coincidence is strongly suggestive of a race against the law.” The trial court had dissolved the injunction, in part on the ground that the act sought to be restrained had already been done, and that it was without power at that stage of the cause to restore the property to its former condition by mandatory injunction. The supreme court reversed. “What we did in the Easton case,” the court said, p. 110, “we will do here. We will restore the injunction, without passing upon the merits of the case. They will be considered when it comes here upon final hearing.” In New Haven Clock Co. v. Kochersperger, 175 Ill. 383; 51 N. E. 629, the state supreme court held that the forced payment of a tax after the court has acquired jurisdiction of a bill to enjoin its collection may be restored by the court, even though no preliminary injunction was granted; and that such payment cannot be availed of as a defense upon the ground that the tax having been paid there is nothing to enjoin. The same court in Turney v. Shriver, 269 Ill. 164, 172; 109 N. E. 708, held the rule to be that “where a bill for injunction has been filed and the court has acquired jurisdiction of both the person and the subject matter of the suit and the defendant does any act which the bill seeks to enjoin, such party acts at his peril and subject to the power of the court to compel a restoration of the status, . . .” See also, König v. M. & C. C. of Balto., 126 Md. 606, 627; 95 Atl. 478. The conclusion to be drawn from all the cases is that after a defendant has been notified of the pendency of a suit seeking an injunction against him, even though a temporary injunction be not granted, he acts at his 65773°—36-----2 18 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. peril and subject to the power of the court to restore the status, "wholly irrespective of the merits as they may be ultimately decided. 1 High on Injunctions (4th ed.), § 5 (a). We hold the principle of this rule to be applicable to the present case. When proceedings were instituted by the commission and the registrant was notified and called upon to show cause why a stop order should not be issued, the practical effect was to suspend, pending the inquiry, all action of the registrant under his statement. Unless the registration statement is effective, the issuer of a security who makes use of the mails or of the instrumentalities of interstate commerce to sell the security or to carry the same for the purposes of sale or delivery after sale, § 5 (a) of the act, is liable to severe penalties of fine and imprisonment. § 24. The word “effective,” as here employed, connotes completeness of operative force and freedom to act. And a registration statement which, while still in fieri, is brought under official challenge in respect of its validity and subjected to an official proceeding aimed at its destruction, cannot be so characterized until the challenge is determined in favor of the registrant. In the meantime, since he can act only at his peril, the registration statement can in no real sense be called effective. Second. In this situation, does a registrant have the unqualified right to withdraw his registration statement or, in other words, to dismiss a pending proceeding by which, for his own advantage, he is seeking the use of the mails and the instrumentalities of interstate commerce? If he have such right, there is no basis for the exercise of discretion in respect of the matter on the part of the commission; for it is obvious that discretion does not exist where there is no power to act except in one way. Cf. Detroit v. Detroit City Ry. Co., 55 Fed. 569, 573; Ex parte Skinner & Eddy Corp., 265 U. S. 86, 93. JONES v. SECURITIES COMMISSION. 19 1 Opinion of the Court. The act contains no provision upon the subject; and it may not be construed as attempting to confer upon the commission an arbitrary power, under rule or otherwise, to deny, without reason, a motion to dismiss. We are unable to find any precedent for the assumption of such power on the part of an administrative body; and we go to the practice and rules of the courts in order to determine by analogy the scope and limit of the power; for, at least in the absence of a statute to the contrary, the power of a commission to refuse to dismiss a proceeding on motion of the one who instituted it cannot be greater than the power which may be exercised by the judicial tribunals of the land under similar circumstances. Both parties here seem to recognize the appositeness of this test. The general rule is settled for the federal tribunals that a plaintiff possesses the unqualified right to dismiss his complaint at law or his bill in equity unless some plain legal prejudice will result to the defendant other than the mere prospect of a second litigation upon the subject matter. Pullman’s Palace Car Co. v. Transportation Co., 171 U. S. 138, 145-146. In announcing the rule, this court approved and cited as authority the decision rendered by Chief Justice Taft, then circuit judge, in Detroit v. Detroit City Ry. Co., 55 Fed. 569. The opinion in the latter case, reviewing the English and American authorities, states the rule as follows [p. 572]: “It is very clear from an examination of the authorities, English and American, that the right of a complainant to dismiss his bill without prejudice, on payment of costs, was of course except in certain cases. . . . The exception was where a dismissal of the bill would prejudice the defendants in some .other way than by the mere prospect of being harassed and vexed by future litigation of the same kind.” 20 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. Chicago & Alton R. Co. v. Union Rolling Mill Co., 109 U. S. 702, 713-715; Barrett v. Virginian Ry. Co., 250 U. S. 473, 476; McGowan v. Columbia River Packers’ Assn., 245 U. S. 352, 358; Veazie v. Wadleigh, 11 Pet. 55, 61-62; Confiscation Cases, 7 Wall. 454, 457-458. The foregoing decisions, together with others, are reviewed in an opinion delivered by Chief Justice Taft in Ex parte Skinner & Eddy Corp., 265 U. S. 86, and the conclusion stated as follows: “The right to dismiss, if it exists, is absolute. It does not depend on the reasons which the plaintiff offers for his action. The fact that he may not have disclosed all his reasons or may not have given the real one can not affect his right. “The usual ground for denying a complainant in equity the right to dismiss his bill without prejudice at his own costs is that the cause has proceeded so far that the defendant is in a position to demand on the pleadings an opportunity to seek affirmative relief and he would be prejudiced by being remitted to a separate action. Having been put to the trouble of getting his counter case properly pleaded and ready, he may insist that the cause proceed to a decree. . . . “The Government had not when the case was dismissed given any time or expense to the preparation and filing of a cross bill or of the evidence to sustain it. It had not taken any action in respect to the cause which entitled it to say that it would be prejudiced by a dismissal within the meaning of the authorities. It suddenly was awakened by the motion to dismiss to the fact that by eighteen months’ delay, it was losing a possible opportunity to litigate ,a cross claim in the Court of Claims and without a jury. We think the same rule should obtain in the procedure of the Court of Claims as in federal courts of law and equity in respect to the dismissal of cases without prejudice.” JONES v. SECURITIES COMMISSION. 21 1 Opinion of the Court. The commission apparently concedes that in the absence of a regulation to the contrary, the foregoing general rule would be applicable. The commission, however, relying upon our recent decision in Bronx Brass Foundry, Inc. v. Irving Trust Co., 297 U. S. 230, contends that its regulation, quoted ante, justifies the adverse action of the commission. In the Brass Foundry case, proof of a claim in bankruptcy had been filed. The trustee in bankruptcy moved to expunge the claim on the ground that the creditor had received certain payments on account which constituted unlawful preferences. Several hearings were held before the referee, and the evidence indicated that the contention of the trustees was well founded. Before the hearing closed, the creditor filed a withdrawal of its claim and abandoned the hearing. The trustee insisted that it was entitled to an adjudication whether the payments made were unlawful preferences. The referee refused to permit a withdrawal of the claim; and his action was approved by the district court, and its judgment in turn affirmed by the circuit court of appeals having jurisdiction. We affirmed, holding that the general rule as stated in Ex parte Skinner c& Eddy Corp., supra, had been modified by a rule of the district court which authorized the court to refuse, after issue joined, “to permit the plaintiff to discontinue even though the defendant cannot have affirmative relief under the pleadings, and though his only prejudice be the vexation and expense of a possible second suit upon the same cause of action.” Assuming, without deciding, that the regulation of the commission was within its power and in force, it differs essentially from the foregoing rule of the district court. As applied to this proceeding in which there are no adversary parties, the regulation does not restrict the common-law rule. That rule, as we have seen, is that the right to dismiss is unqualified unless the dismissal would legally prejudice the defendants in some other 22 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. way than by future litigation of the same kind. The regulation is “Any registration statement or any amendment thereto may be withdrawn upon the request of the registrant if the commission consents thereto. . . . Such consent shall be given by the commission with due regard to the public interest and the protection of investors.” This regulation is quite as general as the rule of the common law, and the possibility that the same registration may be attempted in the future is not within its terms any more than it is within the terms of the common-law rule. The question under the regulation is whether due regard to the public interest and the protection of investors requires that the withdrawal be denied. The test is the absence or presence of prejudice to the public or investors; and, plainly enough, under the decisions of this court, the doctrine that a dismissal must be granted if no prejudice be shown beyond the prospect of another suit, unless there be a specific rule of court to the contrary, is applicable, and the withdrawal should have been allowed as of course. We are unable to find anything in the record, the arguments of the commission, or the decision of the court below that suggests the possibility of any prejudice to the public or investors beyond the assumption, as put by the court below, 79 F. (2d) at p. 620, that “an unlimited privilege of withdrawal would have the effect of allowing registrants whose statements are defective to withdraw before a stop order was issued and then to submit another statement with slight changes.” In this proceeding, there being no adversary parties, the filing of the registration statement is in effect an ex parte application for a license to use the mails and the facilities of interstate commerce for the purposes recognized by the act. We are unable to see how any right of the general public can be affected by the withdrawal of such an application before it has gone into effect. Peti- JONES v. SECURITIES COMMISSION. 23 1 Opinion of the Court. tioner emphatically says that no steps had been taken looking to the issue of the securities; and this is not denied. So far as the record shows, there were no investors, existing or potential, to be affected. The conclusion seems inevitable that an abandonment of the application was of no concern to anyone except the registrant. The possibility of any other interest in the matter is so shadowy, indefinite, and equivocal that it must be put out of consideration as altogether unreal. Under these circumstances, the right of the registrant to withdraw his application would seem to be as absolute as the right of any person to withdraw an ungranted application for any other form of privilege in respect of which he is at the time alone concerned. An additional reason why the action of the commission and of the court below cannot be sustained is that the commission itself had challenged the integrity of the registration statement and invited the registrant to show cause why its effectiveness should not be suspended. In the face of such an invitation, it is a strange conclusion that the registrant is powerless to elect to save himself the trouble and expense of a contest by withdrawing his application. Such a withdrawal accomplishes everything which a stop order would accomplish, as counsel for the commission expressly conceded at the bar. And, as the court below very properly recognized, a withdrawal of the registration statement “would end the effect of filing it and there is no authority under § 19 (b) to issue the Commission subpoena and it could not be enforced by order of the district court under § 22 (b).” 79 F. (2d) 619. The action of the commission finds no support in right principle or in law. It is wholly unreasonable and arbitrary. It violates the cardinal precept upon which the constitutional safeguards of personal liberty ultimately rest—that this shall be a government of laws—, because to the precise extent that the mere will of an official or 24 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. an official body is permitted to take the place of allowable official discretion or to supplant the standing law as a rule of human conduct, the government ceases to be one of laws and becomes an autocracy. Against the threat of such a contingency the courts have always been vigilant, and, if they are to perform their constitutional duties in the future, must never cease to be vigilant, to detect and turn aside the danger at its beginning. The admonition of Mr. Justice Bradley in Boyd v. United States, 116 U. S. 616, 635, should never be forgotten: “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their .first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. ... It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis.” Arbitrary power and the rule of the Constitution cannot both exist. They are antagonistic and incompatible forces; and one or the other must, of necessity perish whenever they are brought into conflict. To borrow the words of Mr. Justice Day—“there is no place in our constitutional system for the exercise of arbitrary power.” Garfield v. Goldsby, 211 U. S. 249, 262. To escape assumptions of such power on the part of the three primary departments of the government, is not enough. Our institutions must be kept free from the appropriation of unauthorized power by lesser agencies as well. And if the various administrative bureaus and commissions, necessarily called and being called into existence by the increasing complexities of our modern business and political affairs, are permitted gradually to extend their powers by encroachments—even petty encroachments— upon the fundamental rights, privileges and immunities of the people, we shall in the end, while avoiding the JONES v. SECURITIES COMMISSION. 25 1 Opinion of the Court. fatal consequences of a supreme autocracy, become submerged by a multitude of minor invasions of personal rights, less destructive but no less violative of constitutional guaranties. Third. The proceeding for a stop order having thus disappeared, manifestly it cannot serve as a basis for the order of the district court compelling petitioner to appear, give testimony, and produce his private books and papers for inspection by the commission. But the commission contends that the order may rest upon the general power to conduct investigations which it says is conferred by § 19 (b). The difficulty with that is that the investigation was undertaken for the declared and sole purpose of determining whether a stop order should issue. The first action taken by the commission was on May 20th, four days before the registration was to become effective under the statute. The commission then, after averring that upon reasonable grounds it believed the registration statement was false in material facts, directed that stop-order proceedings be instituted against the statement. It never has averred or directed anything else. This action was followed by a notice containing like recitals of a more detailed character, and calling upon the registrant to appear and show cause why a stop order should not be issued suspending the effectiveness of the statement. It was upon this direction and notice that all subsequent proceedings were had and upon which they must stand or fall. We do not interpret the order of the district court, the substance of which has already been stated, as resting upon a different view. Nothing appears in any of the proceedings taken by the commission to warrant the suggestion that the investigation was undertaken or would be carried on for any other purpose or to any different end than that specifically named. An official inquisition to compel disclosures of fact is not an end, but a means to an end; and it is 26 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. a mere truism to say that the end must be a legitimate one to justify the means. The citizen, when interrogated about his private affairs, has a right before answering to know why the inquiry is made; and if the purpose disclosed is not a legitimate one, he may not be compelled to answer. Since here the only disclosed purpose for which the investigation was undertaken had ceased to be legitimate when the registrant rightfully withdrew his statement, the power of the commission to proceed with the inquiry necessarily came to an end. Dissociated from the only ground upon which the inquiry had been based, and no other being specified, further pursuit of the inquiry, obviously, would become what Mr. Justice Holmes characterized as “a fishing expedition ... for the chance that something discreditable might turn up” (Ellis v. Interstate Commerce Comm’n, 237 U. S. 434, 445)—an undertaking which uniformly has met with judicial condemnation. In re Pacific Ry. Comm’n, 32 Fed. 241, 250; Kilboum v. Thompson, 103 U. S. 168, 190, 192, 193,195,196; Boyd v. United States, 116 U. S. 616; Harriman v. Interstate Commerce Comm’n, 211 U. S. 407, 419; Federal Trade Comm’n v. American Tobacco Co., 264 U. S. 298, 305-307. In re Pacific Ry. Comm’n involved the power of a Congressional commission to investigate the private affairs, books and papers of officers and employees of certain corporations indebted to the government. That commission called before it the president of one of these corporations, required the production of private books and papers for inspection, and submitted interrogatories which the witness declined to answer. Acting under the statute, the commission sought a peremptory order from the circuit court to compel the witness to answer the interrogatories. The court, consisting of Mr. Justice Field, Circuit Judge Sawyer, and District Judge Sabin, denied the motion of the district attorney for the order JONES v. SECURITIES COMMISSION. 27 1 Opinion of the Court. and discharged the rule to show cause. Opinions were rendered seriatim, the principal one by Justice Field. The authority of the commission was definitely denied. That decision has frequently been cited and approved by this court. Judge Sawyer, in the course of his opinion (at p. 263), after observing that a bill in equity seeking a discovery upon general, loose and vague allegations is styled “a fishing bill,” and will, at once, be dismissed on that ground (Story, Eq. Pl. § 325), said: “A general, roving, offensive, inquisitorial, compulsory investigation, conducted by a commission without any allegations, upon no fixed principles, and governed by no rules of law, or of evidence, and no restrictions except its own will, or caprice, is unknown to our constitution and laws; and such an inquisition would be destructive of the rights of the citizen, and an intolerable tyranny. Let the power once be established, and there is no knowing, where the practice under it would end.” The fear that some malefactor may go unwhipped of justice weighs as nothing against this just and strong condemnation of a practice so odious. And, indeed, the fear itself has little of substance upon which to rest. The federal courts are open to the government; and the grand jury abides as the appropriate constitutional medium for the preliminary investigation of crime and the presentment of the accused for trial. The philosophy that constitutional limitations and legal restraints upon official action may be brushed aside upon the plea that good, perchance, may follow, finds no countenance in the American system of government. An investigation not based upon specified grounds is quite as objectionable as a search warrant not based upon specific statements of fact. Such an investigation, or such a search, is unlawful in its inception and cannot be made lawful by what it may bring, or by what it actually succeeds in bringing, to fight. Cf. Byars v. United States, 28 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. 273 U. S. 28, 29, and cases cited. If the action here of the commission be upheld, it follows that production and inspection may be enforced not only of books and private papers of the guilty, but those of the innocent as well, notwithstanding the proceeding for registration, so far as the power of the commission is concerned, has been brought to an end by the complete and legal withdrawal of the registration statement. Exercise of “such a power would be more pernicious to the innocent than useful to the public”; and approval of it must be denied, if there were no other reason for denial, because, like an unlawful search for evidence, it falls upon the innocent as well as upon the guilty and unjustly confounds the two. Entick v. Carrington, 19 Howell’s St. Trials, 1030, 1074—followed by this court in Boyd v. United States, 116 U. S. 616, 629-630. No one can read these two great opinions, and the opinions in the Pacific Ry. Comm’n case, from which the foregoing quotation is made, without perceiving how closely allied in principle are the three protective rights of the individual—that against compulsory self-accusation, that against unlawful searches and seizures, and that against unlawful inquisitorial investigations. They were among those intolerable abuses of the Star Chamber, which brought that institution to an end at the hands of the Long Parliament in 1640. Even the shortest step in the direction of curtailing one of these rights must be halted in limine, lest it serve as a precedent for further advances in the same direction, or for wrongful invasions of the others. Fourth, The foregoing disposes of the case and requires a reversal of the judgment of the lower court. In that view, it becomes unnecessary to consider the constitutional validity of the act. Reversed. JONES v. SECURITIES COMMISSION. 29 1 Cardozo, J., dissenting. Mr. Justice Cardozo, dissenting. I am unable to concur in the opinion of the court. A subpoena duces tecum was issued by the Commission on June 13 before any attempt had been made to withdraw the registration statement. On June 18, the day of the attempted withdrawal, there was issued a second subpoena commanding the registrant to appear and testify, and this was served upon him by the Marshal. Then and for months earlier a standing Regulation gave warning to him and to the world that without the consent of the Commission there could be no withdrawal of a statement once placed upon the files. I am persuaded that the Rule is valid; that the Commission had abundant reasons for maintaining jurisdiction; and that notice of withdrawal did not nullify the writ. The subpoena flouted by the witness ’was issued under § 19 (b) of the statute as well as under § 8 (e). So the sworn petition for the Commission explicitly informs us. It was issued in aid of any legitimate inquiry that the Commission had authority to initiate and prosecute by reason of a false and defective statement then part of the official records. Nothing in the case gives color to the argument that the witness was to be subjected to a roving examination without the restraints of pleadings or bounds analogous thereto. On the contrary, the order of the District Court upholding the subpoena directs him to make answer to questions pertinent to the documents already filed with the Commission, to these and nothing more. If the petitioner is to prevail in his attack upon the writ, it will have to be on broader grounds than those of form and method. He must be able to make good his argument that by the mere announcement of withdrawal, he achieved results analogous to those of a writ of prohibition. 30 OCTOBER TERM, 1935. Cardozo, J., dissenting. 298 U.S. Recklessness and deceit do not automatically excuse themselves by notice of repentance. Under § 24 of the Act, there is the possibility, at times the likelihood, of penal liability. A statement wilfully false or wilfully defective is a penal offense to be visited, upon conviction, with fine or imprisonment. Under § 12, there is the possibility, if not the likelihood, of liability for damages. The statement now in question had been effective for over twenty days, and the witness did not couple his notice of withdrawal with an affidavit or even a declaration that securities had not been sold. Nor is the statute lacking in machinery with which to set these liabilities in motion upon appropriate occasion. Under § 19 (b), plenary authority is conferred on the Commission to conduct all investigations believed to be necessary and proper for the enforcement of the Act and of any of its provisions. There will be only partial attainment of the ends of public justice unless retribution for the past is added to prevention for the future. But the opinion of the court teaches us that however flagrant the offense and however laudable the purpose to uncover and repress it, investigations under § 19 (b) will be thwarted on the instant when once the statement of the registrant has been effectively withdrawn. If that is so, or even indeed if the effect of the retraction is to embarrass the inquiry—to cloud the power to continue—the fairness of the Rule is proved out of the mouths of its accusers. If such consequences are inherent in a privilege of withdrawal indiscriminately bestowed, there is need of some restraint upon the power of the wrongdoer to mitigate the penalties attaching to his wrong. Shall the truth be shown forth or buried in the archives? The Commission is to determine in the light of all the circumstances, including its information as to the conduct of the applicant, whether the public interest will be prompted by forgetting and forgiving. Bronx Brass Foundry, Inc. v. Irving Trust Co., 297 U. S. 230. JONES v. SECURITIES COMMISSION. 31 1 Cardozo, J., dissenting. The objection is inadequate that an investigation directed to the discovery of a crime is one not for the Commission, but for the prosecuting officer. There are times when the functions of the two will coincide or overlap. Congress has made it plain that any inquiry helpful in the enforcement of the statute may be pursued by the Commission, though conduct punishable as a crime may thereby be uncovered. Indeed, the Act is explicit—§ 22 (c)—that a witness is not excused from testifying on the ground that the testimony required of him may tend to incriminate him or expose him to a penalty or forfeiture. He may, however, claim his privilege, and if then compelled to testify, may not be prosecuted thereafter for any matter thus revealed. All this is far from proving that there can be no practical advantage in keeping the proceeding open. Aside from the possibility of civil liability, the offender may not choose to claim the privilege, and even if he does, and is then excused from testifying, other witnesses may be available, for example, employes, who are not implicated in the offense and who can bring the facts to view. Moreover, amnesty for one offender may mean conviction for another, an associate in the crime. Inquiry by the Commission is thus more penetrating and efficient than one by a grand jury where there is no statutory grant of amnesty to compel confederates to speak. More important still, the enforcement of the Act is aided when guilt is exposed to the censure of the world, though the witness in the act of speaking may make punishment impossible. It is no answer to all this that upon the record now presented a crime has not been proved or even definitely charged. An investigator is not expected to prove or charge at the beginning the offenses which he has reason to suspect will be uncovered at the end. The petition in behalf of the Commission enumerates one by one the false statements and the omissions imputed to the registrant. Some at least are of 32 OCTOBER TERM, 1935. Cardozo, J., dissenting. 298 U.S. such a nature that if chargeable to him at all, they can hardly have been made otherwise than with criminal intent. To give the investigating officer an opportunity to reach down into the hidden wells of knowledge and the more hidden wells of motive is the very purpose of the Regulation by which the proceeding is kept open after the'registrant has tried to end it. The opinion of the court reminds us of the dangers that wait upon the abuse of power by officialdom unchained. The warning is so fraught with truth that it can never be untimely. But timely too is the reminder, as a host of impoverished investors will be ready to attest, that there are dangers in untruths and half truths when certificates masquerading as securities pass current in the market. There are dangers in spreading a belief that untruths and half truths, designed to be passed on for the guidance of confiding buyers, are to be ranked as peccadillos, or even perhaps as part of the amenities of business. When wrongs such as these have been committed or attempted, they must be dragged to light and pilloried. To permit an offending registrant to stifle an inquiry by precipitate retreat on the eve of his exposure is to give immunity to guilt; to encourage falsehood and evasion; to invite the cunning and unscrupulous to gamble with detection. If withdrawal without leave may check investigation before securities have been issued, it may do as much thereafter, unless indeed consistency be thrown to the winds, for by the teaching of the decision withdrawal without leave is equivalent to a stop order; with the result that forthwith there is nothing to investigate. The statute and its sanctions become the sport of clever knaves. Appeal is vaguely made to some constitutional immunity, whether express or implied is not stated with distinctness. It cannot be an immunity from the unreasonable search or seizure of papers or effects: the books and documents of the witness are unaffected by the challenged JONES v. SECURITIES COMMISSION. 33 1 Cardozo, J., dissenting. order. It cannot be an immunity from impertinent intrusion into matters of strictly personal concern: the intimacies of private business lose their self-regarding quality after they have been spread upon official records to induce official action. In such circumstances the relevance of Entick v. Carrington, 19 Howell’s St. Trials, 1030, 1074, or Boyd v. United States, 116 U. S. 616, 629, or In re Pacific Railway Comm’n, 32 Fed. 241, 250, is not readily perceived. Cf. Interstate Commerce Comm’n v. Brimson, 154 U. S. 447, 469, 478. If the immunity rests upon some express provision of the Constitution, the opinion of the court does not point us to the article or section. If its source is to be found in some impalpable essence, the spirit of the Constitution or the philosophy of government favored by the Fathers, one may take leave to deny that there is anything in that philosophy or spirit whereby the signer of a statement filed with a regulatory body to induce official action is protected against inquiry into his own purpose to deceive. The argument for immunity lays hold of strange analogies. A Commission which is without coercive powers, which cannot arrest or amerce or imprison though a crime has been uncovered, or even punish for contempt, but can only inquire and report, the propriety of every question in the course of the inquiry being subject to the supervision of the ordinary courts of justice, is likened with denunciatory fervor to the Star Chamber of the Stuarts. Historians may find hyperbole in the sanguinary simile. The Rule now assailed was wisely conceived and lawfully adopted to foil the plans of knaves intent upon obscuring or suppressing the knowledge of their knavery. The witness was under a duty to respond to the subpoena. Mr. Justice Brandeis and Mr. Justice Stone join in this opinion. 65773°—36-3 34 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. HART v. VIRGINIA. APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. No. 857. Jurisdictional statement distributed March 28, 1936.— Decided April 13, 1936. A convict in a Virginia penitentiary who kills an officer or guard having him in custody is not chargeable under §§ 5049 and 5051 of the Virginia Code of 1930, as construed by the Virginia courts, if the killing was done in self-defense. Appeal dismissed. Appeal from a judgment sustaining a verdict and sentence for felonious homicide. Mr. S. H. Bond for appellant. Mr. Abram P. Staples, Attorney General of Virginia, for appellee. Per Curiam. Appellant, a convict, was convicted of the felonious killing of one Alton Leonard, a prison guard, in whose custody appellant was working. The jury fixed his punishment at death. The conviction and sentence were pursuant to §§ 5049 and 5051 of the Virginia Code, 1930, providing, so far as pertinent, as follows: “§ 5049. A convict confined in the penitentiary, or in custody of an officer, shall be deemed guilty of felony if he kill, wound, or inflict other bodily injury upon an officer or guard of the penitentiary; . . .” “§ 5051. A convict guilty of such killing as is mentioned in section five thousand and forty-nine, or of any act therein mentioned, from which death ensues to such officer or guard, shall be punished with death.” Appellant challenged these provisions as being repugnant to the due process and equal protection clauses HART v. VIRGINIA. 35 34 Opinion of the Court. of the Fourteenth Amendment of the Federal Constitution. His main contentions were that the statute was so broad as to embrace excusable homicide and that, as a convict he was deprived of the equal protection of the laws relating to murder and manslaughter. We take the statute as construed by the state court and applied in the instant case. Appellant defended the killing of Leonard upon the ground of self-defense. The evidence in support of that defense, with all the circumstances of the case, was submitted to the jury under appropriate instructions which recognized the admissibility of the defense under the statute. The trial court, defining with care the right of self-defense, charged the jury that if appellant had acted in the exercise of that right, the jury should find him not guilty. The Supreme Court of Appeals refused to review the judgment upon the ground that it was “plainly right.” As we find no substantial federal question presented, the appeal is dismissed for the want of jurisdiction. (1) Lee v. New Jersey, 207 U. S. 67, 70; Hatch v. Reardon, 204 U. S. 152, 160; Fox v. Washington, 236 U. S. 273, 277; (2) Graham v. West Virginia, 224 U. S. 616, 630; Linds-ley v. Natural Carbonic Gas Co., 220 U. S. 61, 78, 79; Price v. Illinois, 238 U. S. 446, 453. Dismissed. 36 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. SCHENEBECK v. McCRARY et al. APPEAL FROM THE SUPREME COURT OF ARKANSAS. No. 810. Jurisdictional statement distributed March 28, 1936.— Decided April 13, 1936. A taxpayer in Arkansas has no vested interest in public funds deposited by a county treasurer in a designated depositary; consequently, state legislation releasing the treasurer and his bondsmen and the bondsmen of the depositary from liability for deposits lost through the insolvency of the depositary, was not in this case an impairment of the obligation of contracts. 191 Ark. 698; 87 S. W. (2d) 572, affirmed. Appeal from a judgment affirming in part and in part reversing a judgment of the trial court in an action to recover county funds. Mr. John Ross Thompson for appellant. Mr. Charles A. Walls for appellees. Per Curiam. Prior to its insolvency, the Lonoke County Bank was the duly designated depository for the public funds of Lonoke County, Arkansas. In November, 1934, the County Court entered an order compromising the liability of the sureties on the depository bond. In December, 1934, appellant, a taxpayer of the county, brought this action, in the first count, against the county treasurer and her bondsmen, and in the second count, against the bondsmen for the depository, seeking to recover the amount of public funds on deposit in the bank when it closed. The defense relied upon Acts No. 16 and No. 325 of the Acts of Arkansas of 1935. Act No. 16 released county treasurers and their bondsmen from liability where deposited funds had been lost by reason of the insolvency SCHENEBECK v. McCRARY. 37 36 Opinion of the Court. of the bank and not through defalcation of the countytreasurer. By Act No. 325 similar relief was given to the bondsmen for a county depository. Appellant contended that the legislation impaired the obligation of contracts in violation of Article I § 10, of the Constitution of the United States. The trial court sustained the plea of the county treasurer and her bondsmen, under Act No. 16, and overruled the plea of the bondsmen for the depository, and rendered judgment accordingly. On appeal and cross appeal, the Supreme Court of the State affirmed the judgment with respect to the county treasurer and her bondsmen, and reversed the judgment and dismissed the cause with respect to the bondsmen for the depository, construing and sustaining the legislation invoked. The Supreme Court of the State decided that the individual taxpayers had no vested interest in the public funds in question and hence that there was no impairment of the obligation of contracts. The state court drew a distinction between the case of such taxpayers in relation to general public funds, and those who have a vested interest in the funds of an improvement district, citing Bauer v. North Arkansas Highway Improvement District No. 1, 168 Ark. 220, 224; 270 S. W. 533. While this Court, when a question under the contract clause is raised, may examine the alleged contract in order to determine the obligations which inhere in it, we find no ground for disturbing the ruling of the state court as to petitioner’s lack of a vested interest in the funds deposited. Compare Violet Trapping Co. v. Grace, 297 U. S. 119; Ingraham v. Hanson, 297 U. S. 378. The judgment is Affirmed. 38 OCTOBER TERM, 1935. Syllabus. 298 U.S. ST. JOSEPH STOCK YARDS CO. v. UNITED STATES et al. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI. No. 497. Argued March 2, 1936.—Decided April 27, 1936. 1. Past conditions of the business affected, during a reasonable period, as well as existing conditions, are properly to be considered by a rate-making authority in fixing rates for the future. P. 46. 2. An order of the Secretary of Agriculture fixing stockyards rates, not shown to be confiscatory by the evidence before him, and against which no further evidence was offered by the company affected in its suit for an injunction, held not invalid because the Secretary had refused to grant a further hearing on adverse changes in the company’s business conditions alleged to have occurred after the close of the hearing granted. P. 47. 3. Where the issue is whether rates fixed by the Secretary of Agriculture for stockyards services operate to confiscate property of the company affected, a court is not bound to accept the findings of the Secretary though supported by substantial evidence, but must weigh the evidence and pass upon the questions of fact. P. 49. 4. In the fixing of rates—a legislative act—the legislature has a broad discretion which it may exercise directly or through a legislative agency authorized to act in accordance with standards prescribed by the legislature. P. 50. 5. Courts do not sit as boards of revision to substitute their judgment for that of the legislature or its agents as to matters within the province of either. P. 51. 6. Where the legislature itself fixes rates, acting within the field of legislative discretion, its determinations are conclusive. P. 51. 7. Where the legislature appoints a rate-fixing agent to act within the limits of legislative authority, it may endow the agent with power to make findings of fact which are conclusive, provided the requirements of due process which are specially applicable to such an agency are met, as in according a fair hearing and acting upon evidence and not arbitrarily. In such cases, the judicial inquiry into the facts goes no farther than to ascertain whether there is evidence to support the findings; and the question of the weight of the evidence in determining issues of fact lies with the legislative agency acting within its statutory authority. P. 51. ST. JOSEPH STOCK YARDS CO. v. U. S. 39 38 Syllabus. 8. The Constitution fixes limits to the rate-making power by prohibiting deprivation of property without due process of law or the taking of private property for public use without just compensation. P. 51. 9. Acts of the legislature or of its agent in rate-making, when properly challenged as exceeding these constitutional limits, are necessarily subject to judicial review upon the facts and the law, to the end that the Constitution, as the supreme law of the land, may be maintained. P. 51. 10. Judicial scrutiny of legislative rates, their constitutionality being in issue, cannot be avoided by declarations or findings made by the legislature or its agent. P. 51. 11. To say that the findings of fact of legislative agencies may be made conclusive where constitutional rights of liberty and property are involved, although the evidence clearly establishes that the findings are wrong and that constitutional rights have been invaded, is to place those rights at the mercy of administrative officials and seriously impair the security inherent in our judicial safeguards. P. 52. 12. The judicial duty to examine the weight of the evidence exists for the protection of property rights as well as rights of liberty under the Constitution. P. 52. 13. Under our system there is no warrant for the view that the judicial power of a competent court can be circumscribed by any legislative arrangement designed to give effect to administrative action going beyond the limits of constitutional authority. P. 52. 14. In determining whether a legislative rate consists with due process under the Constitution, the question is whether the legislative action has passed beyond the lowest limit of the permitted zone of reasonableness into the forbidden reaches of confiscation; the judicial scrutiny must of necessity take into account the entire legislative process, including the reasoning and findings upon which the legislative action rests; the complaining party carries the burden of making a convincing showing, and the court will not interfere with the exercise of the rate-making power unless confiscation is clearly established. P. 53. 15. Primary or subordinate findings of fact made by a legislative agency in fixing a rate will not be disturbed save as in particular instances they are plainly shown to be overborne. P. 54. 16. Upon the question whether rates fixed by the Secretary of Agriculture for a stockyards company under the Packers & Stock-yards Act are confiscatory, the Court in this case examines the 40 OCTOBER TERM, 1935. Argument for Appellant. 298 U.S. evidence and sustains findings made by the District Court and findings of the Secretary adopted by that court as to: (1) value of land used and useful in the business, p. 56; (2) value of structures; existing depreciation, p. 61; (3) going concern value, p. 62; (4) annual depreciation allowance, p. 65; and (5) income, p. 68. 17. In fixing rates under the Packers & Stockyards Act, the Secretary of Agriculture was not estopped by findings and allowances made in an earlier proceeding which was abandoned. P. 63. 18. In fixing rates of a stockyards company, a hotel run at a loss and not helpful to the stockyards business is properly excluded from the rate base. P. 57. 19. Land, as part of the property valued in fixing rates, should be allowed its fair market value for all available uses and purposes, including value due to special adaptation to particular purposes, but excluding increments of value due to the public use. P. 59. 20. In fixing rates, a separate allowance of going-concern value supported only by assumptions and speculations of an expert, held properly denied. P. 62. 21. In fixing rates for stockyards service, it was open to the Secretary of Agriculture to increase a company’s charges for the use of feed lots, owned by it and included in the rate base, upon the ground that the existing charges produced discrimination and should be made reasonable for all customers; and it was not necessary to permit the company an alternative in removing the discrimination. P. 67. 22. In fixing rates under the Act, the Secretary may classify them. P. 69. 23. If rates, reasonable when fixed under the Packers & Stockyards Act, are shown by subsequent test to have become unreasonably low, application may be made to the Secretary of Agriculture to have them modified. P. 72. 11 F. Supp. 322, affirmed. Appeal from a decree of the District Court, of three judges, which dismissed a bill to enjoin enforcement of rates fixed by the Secretary of Agriculture under the Packers & Stockyards Act. Mr. Ross Dean Rynder, with whom Mr. William N. Strack was on the brief, for appellant. ST. JOSEPH STOCK YARDS CO. v. U. S. 41 38 Argument for the United States. Upon the question whether the court was bound to accept the findings of fact of the Secretary of Agriculture if supported by substantial evidence, they cited the following cases from this Court: Knoxville v. Knoxville Water Co., 212 U. S. 1; Oklahoma Operating Co. v. Love, 252 U. S. 331; Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287; Prendergast v. New York Tel. Co., 262 U. S. 43; Bluefield Water Co. v. Public Service Comm’n, 262 U. S. 679; Northern Pacific R. Co. v. Department of Public Works, 268 U. S. 39; Lehigh Valley R. Co. v. Public Utility Comm’rs, 278 U. S. 24; United Railways v. West, 280 U. S. 234; Phillips v. Commissioner, 283 U. S. 589; Chicago, R. I. & P. R. Co. v. United States, 284 U. S. 80; Crowell v. Benson, 285 U. S. 22; Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294; Lindheimer v. Illinois Bell Tel. Co., 292 U. S. 151; Dayton Power & Light Co. v. Public Utilities Comm’n, 292 U. S. 290; Columbus Gas & Fuel Co. v. Public Utilities Comm’n, 292 U. S. 398; West Ohio Gas Co. v. Public Utilities Comm’n, 294 U. S. 79; United States v. Chicago, M., St. P. & P. R. Co., 294 U. S. 499; Atchison, T. & S. F. R. Co. v. United States, 295 U. S. 193; West v. Chesapeake & Potomac Tel. Co., 295 U. S. 662. Assistant Attorney General Dickinson, with whom Solicitor General Reed and Messrs. Wendell Berge, J. Stephen Doyle, Jr., and G. N. Dagger were on the brief, for the United States et al. The following discussion of the question above mentioned is from their brief: The District Court stated at several places in the opinion that the findings of fact made by the Secretary are conclusive if supported by substantial evidence. Appellant contends that this was error. 42 OCTOBER TERM, 1935. Argument for the United States. 298 U.S. It should be observed that § 316 of the Packers & Stock-yards Act adopts the same procedure for enjoining the enforcement of orders of the Secretary of Agriculture that had been provided by previous laws for enjoining the enforcement of orders of the Interstate Commerce Commission. 42 Stat. 168; 7 U. S. C. 217. The findings of the Commission, of course, are subject to review, “but when supported by evidence are accepted as final; not that its decision, involving as it does so many and such vast public interests, can be supported by a mere scintilla of proof—but the courts will not examine the facts further than to determine whether there was substantial evidence to sustain the order.” Interstate Commerce Comm’n v. Union Pacific R. Co., 222 U. S. 541, 547-548. See also Illinois Central R. Co. v. Interstate Commerce Comm’n, 206 U. S. 441, 454. This Court has held that the decisions involving review of orders of the Interstate Commerce Commission are also applicable to the review under § 316 of the Packers & Stockyards Act of rate orders of the Secretary of Agriculture. Tagg Bros. & Moorhead v. United States, 280 U. S. 420, 442. Rate making, of course, is a legislative process. Pren-tis v. Atlantic Coast Line, 211 U. S. 210, 226. This Court has said that “Where the constitutional validity of a statute depends upon the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the legislature; and if the question of what the facts establish be a fairly debatable one, it is not permissible for the judge to set up his opinion in respect of it against the opinion of the lawmaker.” Radice v. New York, 264 U. S. 292, 294. Factual determinations made by a legislature as a basis for the enactment of a regulatory statute, even in a suit attacking the constitutionality of the statute, are accorded a presumption of correctness. The same presumption of correctness should be accorded findings of fact of ST. JOSEPH STOCK YARDS CO. v. U. S. 43 38 Argument for the United States. a rate-making body, even in a suit attacking the constitutionality of an order based thereon. Even though the courts have a duty to review the evidence more critically when confiscation is an issue and to reach their independent conclusions of constitutional fact, it would not be feasible to require them to substitute their independent judgment as to the weight of the evidence for that of the body exercising delegated legislative power upon every factual question as to which conflicting evidence is presented. It is submitted that constitutional rights are adequately protected if the reviewing court examines the evidence for itself and determines that it does not compel arrival at different conclusions of fact than those reached by the rate-making authority. The proper scope of review is that stated by this Court in Los Angeles Gas & Electric Corp. v. Railroad Commission, 289 IT. S. 287, when, in upholding a rate order, it was said (pp. 315-316): “our inquiry must be . . . whether the evidence requires the conclusion that by reason of the inadequacy of the valuation the result is confiscation.” It is quite apparent that the District Court made a minute and careful analysis of the evidence. The opinion discusses in considerable detail the evidence on the various questions presented, and makes many specific findings. The court also, in addition to specific findings contained in the opinion, adopted the findings of the Secretary as its own, thereby indicating that its review of the evidence led it to substantial agreement with the Secretary’s findings of fact. It is submitted that appellant had an adequate judicial review in the District Court. But even if the District Court in its discussion of the scope of judicial review adopted an erroneous position, it would not follow that the decree should be reversed. The issue in this case is not the reasoning adopted by the lower court in reaching the conclusion that the maximum rates prescribed by the Secretary are not confiscatory, but 44 OCTOBER TERM, 1935. Argument for the United States. 298 U.S. whether those rates are in fact confiscatory. This is an equity case and it comes before this Court on appeal. All of the material portions of the record before the Secretary and the District Court are now before this Court. Appellees are willing to submit the order herein challenged to the test of any degree of judicial review which this Court deems to be required by the Constitution. If this Court finds that the maximum rates prescribed by the Secretary are not in fact confiscatory, the decree of the lower court is correct and should be affirmed irrespective of possible error in its reasoning. West v. Chesapeake & Potomac Tel. Co., 295 U. S. 662, 680. The Government contends that in so far as the ultimate decision of this case is concerned, it is immaterial what scope is given to judicial review because it is believed that a clear preponderance of the evidence shows that the maximum rates prescribed are fair, reasonable, and non-confiscatory. It is clear, however, that the judgment of the Secretary on the evidence should be given great weight and should not be treated as nugatory. The Secretary is “a tribunal appointed by law and informed by experience” to determine reasonable and non-discriminatory stockyard rates, and it is patent from an examination of the order challenged herein that a vast amount of careful study in the light of technical knowledge surrounding the operation of stockyards has gone into the preparation of this order. The burden of proof rests heavily upon appellant to prove by convincing evidence that the order is confiscatory. Los Angeles Gas & Electric Corp. v. Railroad Commission, 289 U. S. 287, 304-305. See also Lindheimer v. Illinois Bell Tel. Co., 292 U. S. 151,169; Dayton Power & Light Co. v. Public Utilities Comm’n, 292 U. S. 290, 298. Manifestly it is not enough for appellant to establish that the Secretary may have erred with respect to some of the minor factual items or that the District Court may ST. JOSEPH STOCK YARDS CO. v. U. S. 45 38 Opinion of the Court. have erred in some of its reasoning. The position which appellant must sustain in order to succeed in this appeal is to prove beyond reasonable doubt that the total result of the Secretary’s determination as to maximum just and reasonable rates is necessarily confiscatory. Even if error may have been committed in some particulars, the order should be sustained if such error is offset by liberality in other particulars. Lincoln Gas Co. v. Lincoln, 250 U. S. 256, 266-268. It is respectfully submitted that the record in this case demonstrates beyond doubt that appellant has completely failed to sustain its burden of proof. Mr. Chief Justice Hughes delivered the opinion of the Court. This suit was brought by St. Joseph Stock Yards Company to restrain the enforcement of an order of the Secretary of Agriculture fixing maximum rates for the Company’s services. The District Court, composed of three judges, dismissed the bill of complaint, 11 F. Supp. 322, and appeal lies directly to this Court. 7 U. S. C. 217; 28 U. S. C. 47. In October, 1929, the Secretary of Agriculture initiated a general inquiry into the reasonableness of appellant’s rates. After hearing, the Secretary prescribed maximum rates which were enjoined by the District Court. St. Joseph Stock Yards Co. v. United States, 58 F. (2d) 290. The Secretary reopened the proceeding and hearing was had in 1933. While the matter was under consideration, appellant filed in February, 1934, a petition for a further hearing. On May 4, 1934, the Secretary denied the petition and made the order now in question. The validity of the provisions of the Packers and Stock-yards Act, 1921 (42 Stat. 159, 7 U. S. C. 181-229) authorizing the Secretary of Agriculture to prescribe maximum charges for the services of stock yards has been sustained. Stafford v. Wallace, 258 U. S. 495; Tagg Bros. & Moor- 46 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. head. v. United States, 280 U. S. 420. In this suit, appellant attacked the Secretary’s order as lacking the support of essential findings, and also as confiscatory, thus violating the Fifth Amendment of the Federal Constitution. The denial of the request for a further hearing was assailed. No additional evidence was introduced in the District Court and the case was submitted at the final hearing upon the record made before the Secretary. First.—The Secretary’s findings.—The findings are elaborate. They include detailed findings with respect to the services rendered by appellant and its rates, the used and useful character of appellant’s property, the valuation of used and useful land, the value of appellant’s structures on the basis of cost of reproduction new less depreciation, working capital, going concern value, fair value on the basis of the facts found, fair rate of return, reasonable operating expenses (including repairs, depreciation and taxes), necessary revenue and volume of business. The Secretary found that the existing rates produced revenues in excess of those necessary to pay reasonable expenses and afford a fair return; that “the schedule of rates and charges now in effect is unreasonable and unjustly discriminatory.” As a guide to his determination of reasonable rates, the Secretary caused an analysis to be made of the books and records of the appellant covering the six-year period from 1927 to 1932. He reached his conclusion in the light of that evidence. Appellant contends that, as a prerequisite to a reduction of rates, it was necessary for the Secretary to find that the rates were unreasonable “at the time of the hearing,” and that there were no findings to support such a conclusion with respect to the year 1932, the year immediately preceding the hearing. But in determining whether the existing rates were unreasonable, the Secretary was not confined to evidence as to ST. JOSEPH STOCK YARDS CO. v. U. S. 47 38 Opinion of the Court. their operation at the precise time of his hearing, or in the months, or* even a year, immediately prior thereto. He was entitled to consider the conditions which then obtained and also to extend his examination over such a reasonable period of past operations as would enable him to make a fair prediction in fixing the maximum rates to be charged in the future. The Secretary had before him the particular conditions which prevailed in the year 1932; and in the selection of the six-year period including that year, and in not taking the year 1932 as a sole criterion, we find nothing arbitrary. There are also objections to the failure of the Secretary to make specific findings on certain points of fact, but, so far as the requirement of findings is concerned, we think that the extensive findings that were made adequately supported his order. Second.—The refusal of the Secretary to reopen the proceeding.—The hearing was closed on February 16, 1933. In the following January, a copy of the proposed order was transmitted to counsel for appellant and opportunity was given to file exceptions. Numerous exceptions were filed and at the same time (February, 1934) appellant asked for a further hearing upon the ground that there had been such a serious change in conditions affecting the value of the Company’s property, its income, and the probable receipts of live stock and expenses of its yards, that the record no longer fairly reflected these matters. The application pointed to the Agricultural Adjustment Act of May 12, 1933, the National Industrial Recovery Act of June 16, 1933, and the Gold Reserve Act of January 30, 1934,—all as producing changes of which account should be taken. Appellant also alleged that its books and records were available to give the complete results of its operations for the year 1933, which showed a lower net operating income than that stated in the Secre- 48 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. tary’s proposed report. The Secretary heard argument, made an informal investigation, and denied the application. He was careful to say that, while as a result of his investigation he found no adequate ground for reopening the proceeding, he did not use the facts thus elicited as a part of the record upon which his determination of rates was based. After stating what he deemed to be comparative results of operations in 1933, and in January and February, 1934, the Secretary gave as the general grounds for his action that it was inevitable that in such determinations considerable time must be consumed and that there would be some economic change; that appellant had obtained one rehearing because the first hearing had been followed by a general business depression which adversely affected its gross revenues; that it sought another because since the last hearing there had been a general improvement in those conditions; that in determining the values used as a rate base, “depression or stagnation values” had carefully been avoided and “normals” used; that the prescribed rates which the Secretary deemed to be fair at that time would “as the economic improvement continues, become liberal”; that the matter had been “in hearing and litigation since the year 1929” and the time had come for decision. The decree of the District Court was filed on May 1, 1935. Despite the opportunity which the suit afforded, the record shows no endeavor on the part of appellant to prove any additional facts as to the conditions which obtained in 1933, or as to its operations in that year or at any time down to the hearing in the District Court, or as to any matter outside the record which had been made before the Secretary. The court concluded that the effect of the legislation of 1933 was speculative; that the difference between the amount which appellant claimed would have been earned under the prescribed rates, if applied to the business of 1933, and the amount found by ST. JOSEPH STOCK YARDS CO. v. U. S. 49 38 Opinion of the Court. the Secretary to constitute the reasonable net return, was “too small to be taken as a guide for a rate”; that in order “to gauge the future,” the Secretary had taken six years, “two of which were deeply affected by the depression,” and that the experience before the Secretary “was up to ten days before the date of the hearing.” In that view the court decided that the proceeding should not be reopened and that the question of the effects urged by appellants in that relation should await the test of actual experience upon which, if sufficient reasons were shown, the Secretary’s order could be challenged. 11F. Supp. p. 325. We find no error in that conclusion. If it be found that the rates as prescribed were not confiscatory, we see no reason for holding the Secretary’s order to be ineffective because of his refusal to reopen the proceeding. United States v. Northern Pacific Ry. Co., 288 U. S. 490. Third.—The scope of judicial review upon the issue of confiscation.—The question is not one of fixing a reasonable charge for a mere personal service subject to regulation under the commerce power, as in the case of market agencies employing but little capital. See Tagg Bros. & Moorhead v. United States, supra, pp. 438, 439. Here, a large capital investment is involved and the main issue is as to the alleged confiscation of that investment. A preliminary question is presented by the contention that the District Court, in the presence of this issue, failed to exercise its independent judgment upon the facts. 11 F. Supp. pp. 320-328. See Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287, 289; Prendergast v. New York Telephone Co., 262 U. S. 43, 50; Bluefield Water Works Co. v. Public Service Comm’n, 262 U. S. 679, 689; United Railways v. West, 280 U. S. 234,251; Tagg Bros. & Moorhead v. United States, supra, pp. 443, 444; Phillips v. Commissioner, 283 U. S. 589, 600; Crowell v. Benson, 285 U. S. 22, 60; State Corporation Comm’n v. Wichita Gas 65773°—36------4 50 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. Co., 290 U. S. 561, 569. The District Court thought that the question was still an open one under the Packers and Stockyards Act, and expressed the view that, even though the issue is one of confiscation, the court is bound to accept the findings of the Secretary if they are supported by substantial evidence and that it is not within the judicial province to weigh the evidence and pass upon the issues of fact. The Government points out that, notwithstanding what was said by the court upon this point, the court carefully analyzed the evidence, made many specific findings of its own, and in addition adopted, with certain exceptions, the findings of the Secretary. The Government insists that appellant thus had an adequate judicial review and, further, that the case is in equity and comes before the court on appeal, and that from every point of view the clear preponderance of the evidence shows that the prescribed rates were in fact just and reasonable. Hence, the Government says that the decree should be affirmed irrespective of possible error in the reasoning of the District Court. See West v. Chesapeake & Potomac Telephone Co., 295 U. S. 662, 680. In view, however, of the discussion in the court’s opinion,1 the preliminary question should be considered. The fixing of rates is a legislative act. In determining the scope of judicial review of that act, there is a distinction between action within the sphere of legislative authority and action which transcends the limits of legislative power. Exercising its rate-making authority, the legislature has a broad discretion. It may exercise that authority directly, or through the agency it creates or appoints to act for that purpose in accordance with appropriate standards. 1 See, also, Denver Union Stock Yard Co. v. United States, 57 F. (2d) 735, 739; St. Joseph Stock Yards Co. v. United States, 58 F. (2d) 290, 295; Union Stock Yards Co. v. United States, 9 F. Supp. 864,875; American Commission Co. v. United States, 11 F. Supp. 965, 969. ST. JOSEPH STOCK YARDS CO. v. U. S. 51 38 Opinion of the Court. The court does not sit as a board of revision to substitute its judgment for that of the legislature or its agents as to matters within the province of either. San Diego Land & Town Co. n. Jasper, 189 U. S. 439, 446; Minnesota Rate Cases, 230 U. S. 352, 433; Los Angeles Gas Corp. v. Railroad Commission, 289 U. S. 287, 304. When the legislature itself acts within the broad field of legislative discretion, its determinations are conclusive. When the legislature appoints an agent to act within that sphere of legislative authority, it may endow the agent with power to make findings of fact which are conclusive, provided the requirements of due process which are specially applicable to such an agency are met, as in according a fair hearing and acting upon evidence and not arbitrarily. Interstate Commerce Comm’n v. Louisville & Nashville R. Co., 227 U. S. 88,91; Virginian Ry. Co. v. United States, 272 U. S. 658, 663; Tagg Bros. & Moorhead v. United States, supra, p. 444; Florida v. United States, 292 U. S. 1, 12. In such cases, the judicial inquiry into the facts goes no further than to ascertain whether there is evidence to support the findings, and the question of the weight of the evidence in determining issues of fact lies with the legislative agency acting within its statutory authority. But the Constitution fixes limits to the rate-making power by prohibiting the deprivation of property without due process of law or the taking of private property for public use without just compensation. When the legislature acts directly, its action is subject to judicial scrutiny and determination in order to prevent the transgression of these limits of power. The legislature cannot preclude that scrutiny and determination by any declaration or legislative finding. Legislative declaration or finding is necessarily subject to independent judicial review upon the facts and the law by courts of competent juris- 52 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. diction to the end that the Constitution as the supreme law of the land may be maintained. Nor can the legislature escape the constitutional limitation by authorizing its agent to make findings that the agent has kept within that limitation. Legislative agencies, with varying qualifications, work in a field peculiarly exposed to political demands. Some may be expert and impartial, others subservient. It is not difficult for them to observe the requirements of law in giving a hearing and receiving evidence. But to say that their findings of fact may be made conclusive where constitutional rights of liberty and property are involved, although the evidence clearly establishes that the findings are wrong and constitutional rights have been invaded, is to place those rights at the mercy of administrative officials and seriously to impair the security inherent in our judicial safeguards. That prospect, with our multiplication of administrative agencies, is not one to be lightly regarded. It is said that we can retain judicial authority to examine the weight of evidence when the question concerns the right of personal liberty. But if this be so, it is not because we are privileged to perform our judicial duty in that case and for reasons of convenience to disregard it in others. The principle applies when rights either of person or of property are protected by constitutional restrictions. Under our system there is no warrant for the view that the judicial power of a competent court can be circumscribed by any legislative arrangement designed to give effect to administrative action going beyond the limits of constitutional authority. This is the purport of the decisions above cited with respect to the exercise of an independent judicial judgment upon the facts where confiscation is alleged. The question under the Packers and Stockyards Act is not different from that arising under any other act, and we see no reason why those decisions should be overruled. ST. JOSEPH STOCK YARDS CO. v. U. S. 53 38 Opinion of the Court. But this judicial duty to exercise an independent judgment does not require or justify disregard of the weight which may properly attach to findings upon hearing and evidence. On the contrary, the judicial duty is performed in the light of the proceedings already had and may be greatly facilitated by the assembling and analysis of the facts in the course of the legislative determination. Judicial judgment may be none the less appropriately independent because informed and aided by the sifting procedure of an expert legislative agency. Moreover, as the question is whether the legislative action has passed beyond the lowest limit of the permitted zone of reasonableness into the forbidden reaches of confiscation, judicial scrutiny must of necessity take into account the entire legislative process, including the reasoning and findings upon which the legislative action rests. We have said that “in a question of ratemaking there is a strong presumption in favor of the conclusions reached by an experienced administrative body after a full hearing.” Darnell v. Edwards, 244 U. S. 564, 569. The established principle which guides the court in the exercise of its judgment on the entire case is that the complaining party carries the burden of making a convincing showing and that the court will not interfere with the exercise of the rate-making power unless confiscation is clearly established. Los Angeles Gas Corp. v. Railroad Commission, 289 U. S. 287, 305; Lindheimer v. Illinois Telephone Co., 292 U. S. 151, 169; Dayton Power & Light Co. v. Public Utilities Comm’n, 292 U. S. 290, 298. A cognate question was considered in Manufacturers Ry. Co. v. United States, 246 U. S. 457, 470, 488-490. There, appellees insisted that the finding of the Interstate Commerce Commission upon the subject of. confiscation was conclusive, or at least that it was not subject to be attacked upon evidence not presented to the Commission. We did not sustain that contention. Nevertheless, we 54 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. pointed out that correct practice required that “in ordinary cases, and where the opportunity is open,” all the pertinent evidence should be submitted in the first instance to the Commission. The Court did not approve the course that was pursued in that case “of withholding from the Commission essential portions of the evidence that is alleged to show the rate in question to be confiscatory.” And it was regarded as beyond debate that, where the Commission after full hearing had set aside a given rate as unreasonably high, it would require a “clear case” to justify a court, “upon evidence newly adduced but not in a proper sense newly discovered,” in annulling the action of the Commission upon the ground that the same rate was so unreasonably low as to deprive the carrier of its constitutional right of compensation. With that statement, the Court turned to an examination of the evidence. The principle thus recognized with respect to the weight to be accorded to action by the Commission after full hearing applies a fortiori when the case is heard upon the record made before the Commission or, as in this case, upon the record made before the Secretary of Agriculture. It follows, in the application of this principle, that as the ultimate determination whether or not rates are confiscatory ordinarily rests upon a variety of subordinate or primary findings of fact as to particular elements, such findings made by a legislative agency after hearing will not be disturbed save as in particular instances they are plainly shown to be overborne. As the District Court, despite its observations as to the scope of review, apparently did pass upon the evidence, making findings of its own and adopting findings of the Secretary, we do not think it necessary to remand the cause for further consideration and we turn to the other questions presented by the appeal. Fourth.—Valuation of property, income, expenses, and fair return.—The Secretary found the fair value of ap- ST. JOSEPH STOCK YARDS CO. v. U. S. 55 38 Opinion of the Court. pellant’s property, used and useful in its stock-yards service, to be $2,743,000. The District Court made certain additions of land which the Secretary had excluded from his appraisal, arriving at a rate base of $2,752,964. The Secretary found seven per cent, to be a reasonable rate of return, which would mean net earnings of $192,010 on his rate base, or $192,710 on that of the court below. The Secretary estimated that under the prescribed rates appellant’s net income available for return upon its investment would be $195,564 or 7.13 per cent, on his valuation. Elaborate briefs have discussed a host of details in attacking and defending these estimates. While we have examined the evidence and appellant’s contentions on each point, it is impracticable to attempt in this opinion to state more than our general conclusions. 1.—Property values.—For the purpose of demonstrating that its rates were not unreasonable prior to 1932, appellant states that it adopts the findings of the Secretary in his first decision as to the total value of its property. That value was then fixed at $3,382,148, to which appellant adds the value of certain additional land now found to be used and useful, $329,163, giving a total value, which appellant says is applicable to the years 1927-1931, of $3,711,311. But the first hearing Was begun and concluded in December, 1929, and while the order was not promulgated until July 20, 1931, it was predicated, as the District Court said in reviewing that order, upon the value of the property as of the year 1928 and the volume of business during that year. St. Joseph Stockyards Co. v. United States, 58 F. (2d) p. 291. Appellant insisted in its bill of complaint in the first suit that the Secretary’s denial of its request for reopening was arbitrary, as economic conditions had materially changed since 1928. The District Courf, applying the principle of our decision in Atchison, T. & S. F. Ry. Co. v. United States, 284 U. S. 56 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. 248, held that a rehearing should have been granted, 58 F. (2d) pp. 296, 297. The Secretary then vacated his prior order and reopened the proceeding. There is no question of res judicata. Tagg Bros. & Moorhead v. United States, supra, p. 445; compare Clark’s Ferry Bridge Co. v. Public Service Comm’n, 291 U. S. 227, 233. Appellant could not obtain an examination of the changed conditions with respect to its income and outlays in the period after 1928 and at the same time insist that the change in values due to the depression should be ignored. Appellant provides the physical facilities for a market and renders various services in connection with livestock. It supplies office buildings, docks for loading and unloading, “chute pens,” “sales pens” and alleys, and the various appurtenances for the proper care of livestock that are essential to its service in warehousing. The property thus consists of land and various structures. Value of land.—The Secretary found that of the land owned by appellant there were 4,410,361 square feet used and useful in its stockyards services. The District Court added 122,041 square feet. 11 F. Supp. 336. Appellant complains, on this appeal, of the exclusion of the property known as the “Transit House” and of the value assigned to the property which was included in the rate base. The “Transit House” is a commercial hotel (occupying 15,805 square feet of land) with a limited patronage supplied by shippers and drivers of trucks. Appellant claims that the land and building are worth $120,143. Appellant points to the ruling of the Secretary in the first proceeding that the hotel should be considered a part of the used and useful property in the stockyards service. In his second decision, now under review, the Secretary found that the hotel was constructed many years ago when transportation facilities between the stockyard area and the “main-uptown” area were limited; that at the time of the first hearing the hotel was leased for a rental ST. JOSEPH STOCK YARDS CO. v. U. S. 57 38 Opinion of the Court. of $1200 a year, and that the business had not warranted an increase, as provided in the lease, up to the time of the second hearing; that the decadence of the property had resulted principally from the development of good roads and the use of motor vehicles and the street car system of the city of St. Joseph, as well as from the change in the method of marketing livestock. It did not appear that the hotel produced enough revenue to pay taxes, insurance and upkeep, to say nothing of a return on its alleged value, and it is plain that if its value were to be included in the rate base the effect would be to levy an annual charge upon the patrons of the yards, principally the original shippers, in order to maintain hotel facilities on a non-compensatory basis for the special benefit of the truck drivers and others who patronized it. The District Court held that it would have to be shown very clearly that the business of the yards would be materially affected by the absence of a nearby hotel before it could be said that its maintenance was so related to the stockyards business as to be properly included in fixing the rate for yard services. The court said that there was no such showing. We take the same view. The land found to be used and useful is divided into several zones. Appellant assigns error in valuation only in the case of Zone A, in which, however, 70 per cent, of the used and useful land, or 3,003,973 square feet, is included. The Secretary valued this land at 16 cents per square foot, or at $480,635. Appellant contends that it is worth at least $275,164 more, which would be at the rate of about 25 cents a square foot. Expert witnesses for both parties testified at length. At the first hearing, in 1929, two witnesses for appellant valued the land in Zone A at 30 cents per square foot. The witness for the Government valued it at 35 cents, predicated upon its particular value for stockyard use; otherwise at 20 cents. Before the second hearing, in 1933, 58 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. two of these witnesses had died. The surviving witness for appellant again testified giving a value, as of August, 1932, of 26 cents per square foot, and a second witness for appellant thought it worth 35 cents. The new witness for the Government placed the value as of November, 1932, at $5000 an acre, or about 11% cents per square foot. All the witnesses were highly qualified experts. Their valuations were of the naked land, without improvements. The three witnesses at the second hearing had collaborated in examining about 147 different transactions relating to property in the general vicinity, but they reached independent conclusions. The Government’s witness attached special weight to five sales, or groups of sales, made at different times from 1918 to 1930 at prices as low or lower than the valuation he fixed. Appellant points to other transfers at other locations at higher prices. Manifestly these transactions involved collateral inquiries and in the end simply afforded information of varying significance to aid the forming of an expert judgment. Appellant recognizes the impracticability of attempting to analyze “the rather involved transfers and locations in an attempt to determine the truth as between the land appraisers.” Accordingly, appellant seeks to demonstrate that the Secretary’s finding is vitiated by what is asserted to be his reliance upon an erroneous analysis of a sale by appellant, in 1929, of the entire capital stock of a terminal belt railway company which served the stockyards and the adjacent industrial area. It is said that none of the expert witnesses based their appraisals upon that transaction. We think that appellant overestimates the relative weight given to it by the Secretary and fails to take proper account of the effect of its use. The Secretary found that the valuation by the Government’s witness at 11% cents per square foot was “well supported by analysis of transactions in adjacent ST. JOSEPH STOCK YARDS CO. v. U. S. 59 38 Opinion of the Court. and similar lands,” but the Secretary thought that the witness had failed to give consideration to the belt railway sale. That led the Secretary to give a higher valuation than that of the Government’s witness. And on all the evidence the Secretary fixed the value at 16 cents per square foot, which he said did not represent “depression or stagnation value” but constituted “the reasonable normal value of the land giving weight to values existing immediately preceding as well as those existing during the present depression.” The weight to be accorded to the testimony of the experts cannot be determined without understanding their approach to the question and the criteria which governed their estimates. The testimony of appellant’s witnesses shows quite clearly that they proceeded, in part at least, upon an erroneous basis. The Packers and Stockyards Act treats the various stockyards of the country “as great national public utilities to promote the flow of commerce from the ranges and farms of the West to the consumers in the East.” It assumes that “they conduct a business affected by a public use of a national character and subject to national regulation.” Stafford v. Wallace, supra, p. 516. Appellant, conducting such a business, was entitled to be allowed in the fixing of its rates the fair market value of its land for all available uses and purposes, which would include any element of value that it might have by reason of special adaptation to particular uses. But it was not entitled to an increase over that fair market value by virtue of the public use. Minnesota Rate Cases, 230 IL S. 352, 451, 455; Clark’s Ferry Bridge Co. v. Public Service Comm’n, supra, p. 238. We think that appellant’s witnesses failed to give proper heed to this principle. Their* testimony indicates that they did not consider simply the availability of the land for all uses and purposes, including its availability for a stockyard, but attached special weight to the actual and profitable public 60 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. use. They apparently included in their estimates an increment of value, by virtue of that use, which is inadmissible in a proceeding to determine the reasonable rates to be charged for the public service. The point is illustrated by the difference in their estimate of the value of the land in Zone B. That is a tract of about seventeen acres adjoining Zone A. One of appellant’s witnesses described the land in Zone B as “of the same character” as that occupied by appellant’s hog sheds and that it had equal railroad service. It was said to adjoin that portion of appellant’s land which “is actively used in the conduct of its business.” The other witness for appellant said that “with respect to topography, rail service and accessibility this ground is much the same as Zone A, which lies immediately to the north.” But the first witness placed a value of 13 cents per square foot on the land in Zone B as compared with 26 cents per square foot on that of Zone A, and the second witness valued the former at 15 cents per square foot and the latter at 35 cents. The first witness said that Zone B was not valued as high as Zone A because “it is not actually in use” by appellant “for the immediate conduct of its business but is in waiting”; that it “had not been brought into its highest and best use,” but when it had been brought into that use, it would “be worth just as much as the land in tract A.” When we consider that the question was of the fair market value of the bare land in the light of its availability, but without improvements (which were separately valued), the erroneous theory on which appellant’s witnesses valued Zone A is apparent. The Secretary fixed the value of the land in Zone A and the similarly available land in Zone B at the same amount. Our conclusion is that the evidence falls short of that convincing character which would justify us in disturbing the Secretary’s finding. ST. JOSEPH STOCK YARDS CO. v. U. S. 61 38 Opinion of the Court. Value of structures.—There appears to be no dispute as to the method of valuation, which was on the basis of cost of reproduction new, less depreciation. The property was inventoried and appraised independently by two qualified engineers, one employed by appellant and the other by the Government. Their estimates of the cost of reproduction new were not very far apart. On that evidence the Secretary found that cost, excluding non-useful property, to be $2,637,186. This included construction overheads, general salaries and expenses, legal expenses, compensation of architects and engineers, fire and tornado insurance, workmen’s compensation and public liability insurance, and taxes during construction, making a total of $2,494,043, on the 1927 inventory, which was increased by $143,143 for the additions and betterments to 1932. Appellant presents no contention as to this valuation but contests the amount deducted by the Secretary for existing depreciation. He took 76.04 per cent, of the cost of reproduction new as representing the depreciated value of the structures and thus his deduction amounted to $597,570. That was close to the estimate of the Government’s engineer. Appellant’s engineer testified that the present condition was 89 per cent. Appellant’s contention is that there was no evidence to support the Secretary’s deduction for existing depreciation and that the only legal evidence on this point was that of appellant’s witness. The precise criticism is that the percentage used by the Government’s engineer in his testimony was based on an average of percentages given by five of his assistants, none of whom testified. It appears, however, that the Government’s witness had personally inspected the property in preparation for the first hearing, at which he testified as to the result of the inspection and the methods he adopted. At the second hearing he testified that he followed the principles of his first 62 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. appraisal in that of 1932, except that he had his five assistant engineers make separate estimates of which he took the average. In answer to appellant’s contention as to their failure to testify, the Government produces a stipulation as to the record which shows that when the exhibits covering the appraisal by the Government’s witness and the estimates of the assistants were offered in evidence, the Government’s counsel stated that if there was any objection upon the ground that they had not testified, the Government would produce any or all of them for cross-examination respecting the exhibits. Later, after an opportunity for an examination of the exhibits by appellant’s counsel, they were received in evidence, appellant’s counsel stating that no objection was made other than the general one theretofore made, and applicable throughout the proceeding, that the Secretary had no power to find the value of appellant’s property. Appellant did not seek to avail itself of the Government’s offer to produce the assistants. In these circumstances we find no basis for the argument that the testimony of the Government’s witness as to the existing depreciation and the accompanying exhibits should not be considered. The Secretary reviewed the method adopted by appellant’s engineer as compared with that of the Government’s engineer and reached a reasoned conclusion upon all the evidence. We think that the evidence affords no sufficient ground for upsetting his finding. The remaining contention affecting the rate base is in relation to going concern value. Going concern value.—Appellant’s witness, who testified at length at both hearings, followed an elaborate method involving assumptions and speculations of the sort which fail to furnish a sound basis for computing a separate allowance for that element. Compare Galveston Electric Co. v. Galveston, 258 U. S. 388, 394; Los Angeles ST. JOSEPH STOCK YARDS CO. v. U. S. 63 38 Opinion of the Court. Gas Corp. v. Railroad Commission, supra, pp. 314, 318, 319; Dayton Power & Light Co. v. Public Utilities Comm’n, 292 U. S. 290, 309; Columbus Gas & Fuel Co. v. Public Utilities Comm’n, 292 U. S. 398, 412. The witness differentiated his method from the “past deficit” method. Galveston Electric Co. v. Galveston, supra. He styled his method as “the cost of reproduction method of evaluating the business.” It compared “to the past deficit method in just exactly the same way that reproduction new of physical property compares to historical cost of physical property.” His calculations depended upon assumptions of theoretical future deficits. They involved elaborate guesswork, according to assumed valuations of physical plant, the length of time required for the complete recovery of the business, and the rate of return. At the first hearing he computed the going concern value at $666,666. At the second hearing, by a similar method he made various calculations dependent on assumed valuations of the property, that is, $294,000 on a total valuation of $5,000,000; $358,000 on a valuation of approximately $3,500,000; and about $400,000, or approximately 22% per cent, of the physical plant value, on a valuation of $2,000,000. That is, as he said, “Depending upon the final value as fixed by the Secretary, the going value will range in approximately a straight line variation” between the limits “of 22% per cent, for a minimum value of $2,000,-000, and 6 per cent, or $294,000 for a maximum value of $5,000,000.” The Secretary treated such speculations as “in no real sense evidence.” We agree with that conclusion. Appellant contends, however, that the Secretary and the District Court erred in saying that appellant’s claim is based wholly upon the testimony of this witness. Appellant strongly relies upon the fact that on the first hearing the Secretary made an allowance of $300,000 for 64 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. going concern value and that in his answer in the first suit he denied that no evidence upon that subject had been offered on the Secretary’s behalf, but on the contrary stated that much evidence was introduced by the Secretary tending to show the value of that element. That answer was made to the allegation that appellant was entitled to an allowance of at least $666,663, and the Secretary further answered that the separate allowance he had made was more than adequate. The Secretary was not estopped or controlled by the ruling in the first proceeding. He was entitled, and it was his duty, to re-examine the case on the second hearing and to reach the conclusion which the evidence justified. In that process, he in effect overruled the earlier allowance and left it without force. The question remains one of evidence. .The Secretary recognized the fact that there is an element of value in an “established plant doing business and earning money over one not thus advanced.” But he thought that in the rate base he had fixed there was an adequate allowance for that element and that it was “inextricably interwoven with other values.” The Government’s argument in support of this view points to the overheads allowed and emphasizes the fact that the Secretary’s method took as his basis reproduction cost “unmodified by considerations of actual or historical cost.” It is urged that the Secretary in fact made a liberal valuation which gave a margin large enough to cover the value inherent in a going concern. We think it unnecessary to review that argument in detail. The decisive point on this appeal is that in seeking a separate allowance for going concern value, in addition to the value of the physical plant as found, and in maintaining that the property was being confiscated because of the absence of that allowance, it was incumbent upon appellant to furnish convincing proof. That proof we do not find in the record. ST. JOSEPH STOCK YARDS CO. v. U. S. 65 38 Opinion of the Court. Operating expenses.—The point of contention is the annual allowance for depreciation reserve. The argument that the Secretary was without authority to prescribe the amount of this allowance is obviously ineffectual. In fixing reasonable rates for the stockyards service it was necessary for the Secretary to ascertain the outlays which that service would require and the amount which should reasonably be reserved out of income to cover depreciation in the property used. It was also necessary for the Secretary in estimating the latter allowance to examine the history of the property and the amounts which in the course of appellant’s operations had been found necessary for repairs and replacements. On the facts disclosed by the extensive evidence, the Secretary concluded that $80,-000 was an adequate amount to be included in appellant’s annual expenses “to cover repairs and provision for depreciation reserve.” The Secretary had found that the amount expended for repairs on appellant’s used and useful property for the preceding ten years had averaged about $38,500 a year. This finding does not appear to be contested, and from it appellant concludes that the Secretary has allowed the remainder of $80,000, or $41,-500, to be carried annually to the depreciation reserve account. Appellant insists that the yearly depreciation allowance should be not less than $100,000. On December 31,1932, appellant had accumulated a depreciation reserve of $1,771,063. This reserve had been accumulated since 1914. In an appraisal made by the American Appraisal Company in 1922, on the basis of reproduction new, the then existing depreciation was estimated at $621,171 and a reserve of that amount was then provided by a surplus adjustment. From that time until 1932 appellant set aside from $120,000 to $130,000 annually making a total provided for depreciation since 1914 of about $1,887,000. In that entire period, by the computation of the Government which does not seem to be 65773°—36-----5 66 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. controverted, there had been charged against the depreciation reserve for retirements only about $116,405, of which about $103,500 were for retirements in the period 1922 to 1932, inclusive. The Government contends that the structural property in the pen areas, embracing pens, fences, runways and other yard structures, had been kept in proper operating condition principally by ordinary repairs and piecemeal replacements. The Government argues that the cost of reproduction new of this part of the property is approximately one-half of the reproduction cost of the entire property, and that from 1916 to 1932 the value of that portion of the property which was retired amounted to about $40,000. Appellant states that in 1926 to 1930, inclusive, the amount of pen structures which were retired was $41,639. On the other hand, it appears that the amount set up for depreciation on that class of assets was over $600,000. Whatever may be said of this or that detail, it is quite clear that the amounts carried annually to the depreciation reserve were excessive. The Government’s analysis tends to show that an average of approximately $47,000 annually would have been sufficient to take care of the repairs, maintenance and retirements during the period for which the financial history of appellant is available, and that the Secretary’s allowance of $80,000 for both repairs and depreciation reserve is about $33,000 in excess of the amount shown to be actually required on the basis of that experience. In the light of appellant’s practice in accumulating an excessive reserve by its charges to operating expenses, a close examination was called for and a considerable deduction in the amount of such allowances in fixing reasonable rates was necessary. We have had occasion recently to discuss the general question of depreciation reserves at some length {Lindheimer v. Illinois Telephone ST. JOSEPH STOCK YARDS CO. v. U. S. 67 38 Opinion of the Court. Co., 292 U. S. 151) and we need not repeat what was there said. The question now presented is one of sound judgment upon the present record. We agree with the District Court that the Secretary endeavored to reach a fair conclusion and that the Government’s analysis is persuasive. The argument that the Secretary employed the sinking fund method and upon that basis made an inadequate allowance does not find support in his findings. It is apparent that he sought to make an allowance which according to the nature of the property and appellant’s experience would be adequate to cover repairs and replacements with a further provision to maintain a reasonable depreciation reserve. The evidence and appellant’s contentions with respect to it do not satisfy us that the Secretary reached an unjustified result. Income.—The Secretary allowed seven per cent, as the rate of return, and appellant presents no complaint as to that. Wabash Valley Electric Co. v. Young, 287 U. S. 488, 502; Los Angeles Gas Corp. n. Railroad Commission, supra, p. 319. Applying the rates he fixed, the Secretary estimated the annual gross income at $621,831, and operating expenses, including the contribution to depreciation reserve as above stated, at $426,267, leaving a net balance of $195,564, slightly over seven per cent, on the fair value of the property. Appellant’s revenue is derived from yardage charges, from the sale of feed and bedding, and from special services. The Secretary made no change in the charges for miscellaneous services, such as loading and unloading, dipping and spraying, cleaning and disinfecting, etc. The revenue from these services was estimated at $90,500. The profit on sales of feed and bedding was estimated at $82,800. The yardage revenues are derived from charges (1) for yarding livestock arriving fresh from the country, (2) for yarding livestock resold or reweighed for purpose 68 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. of sale, and (3) for the use of feed lot facilities. The reductions directed by the Secretary were in (1) and (2) and the revenue from the new rates for these services was estimated at $412,775. As to (3), for livestock held in the feed lots, the Secretary provided for an increase of charges, fixing maximum rates estimated to produce a revenue of $35,756. It appears that formerly the feed lots were leased and on the first hearing before the Secretary their value was excluded from the rate base. After 1930 they were operated under appellant’s supervision and appellant filed its rates for their use. Accordingly, on the second hearing, the Secretary found that the feed lots were used and useful and included them in the rate base. The principal “feeding business” is the feeding of sheep. The increase in rates, for which the Secretary provided, was from 15 cents and 35 cents per head for cattle (depending upon the use of sheds and other enclosures) to 60 cents, and from 5 cents per head for hogs and sheep to 38 cents. Despite the increase, appellant contends that the order as to feed lot charges is void; that there were no findings to support it and no true hearing; that the evidence did not sustain the Secretary’s conclusions, and that although the order was based upon a finding of unjust discrimination, there was no alternative permitted in removing it. It is manifest, however, that when the feed lots were brought into the rate base, it was appropriate that the reasonableness of the charges for their use should be considered. This was part of the subject before the Secretary. In the order for reopening the proceeding, the Secretary had stated that a general inquiry would be made “into the reasonableness and lawfulness of each and every rate and charge . . . stated in any and all schedules of rates and charges filed by respondent” (appellant here). The Secretary found that “under the existing schedule shippers of livestock who consign their animals to commission men” ST. JOSEPH STOCK YARDS CO. v. U. S. 69 38 Opinion of the Court were charged more for the use of appellant’s facilities “in handling such livestock for a shorter period of time” than those who used the “feed lots for a much longer period of time.” The Secretary found that the existing rates were “unreasonable and unjustly discriminatory.” The feed lots were embraced in the tracts the value of which was estimated on a unit basis. The findings show appellant’s operating expenses. We find no merit in the contentions that there was a lack of notice, or a lack of evidence as to the use of the feed lots or as to the discriminatory effect of the existing rates. We do not think that the decisions cited as to the affording of an alternative for the removal of discrimination are applicable to the present case. For the Secretary’s action here was to provide for a reasonable charge for the use of the feed lots, so that those who did not use them should not bear an unreasonable burden. Whether appellant would be able to obtain the estimated revenue from the increased rates should be determined by a fair test of the permitted charges. The reductions by the Secretary were in the charges for yardage services. The Secretary made different reductions for rail and truck shipments, and this differentiation is challenged. For example, under the existing rates, appellant’s charge was 35 cents per head of cattle received by rail and 40 cents per head received by truck. The Secretary reduced the charge to 27 cents as to the former and to 35 cents as to the latter. There are differences in the two sorts of receipts in that in the one case there is a loading and unloading charge and, as detailed testimony showed, cattle received by rail consumed, as a rule, more feed than those received by truck. The evidence disclosed the services rendered in the case of cattle and other livestock, and the question is simply as to a fair determination in the light of all the circumstances. If the rates as prescribed were not confiscatory, the classification of rates was clearly within the Secretary’s statutory authority. 70 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. There is a separate contention with respect to the rates for yarding livestock which was resold or reweighed for the purpose of sale. Appellant states that the Secretary’s charges differed from its own in only one instance, that is, that the former are 1.5 cents per head lower on calves, but as the number of calves resold is negligible, that difference would not appreciably affect appellant’s income. Appellant’s tariff provided that on livestock resold in the commission division, there would be an additional charge of one-half the yardage charges. The Secretary found that despite this limitation, appellant in practice had imposed the charge on other resales, if they did not involve livestock “to go to the country,” that is, bought by farmers to be fed. The Government’s contention is that the practice lacked uniformity. The Secretary concluded that to impose the charge on resales in the commission division, but not on those in the traders division or elsewhere in the yard, was unreasonable and constituted an unjust discrimination. Appellant insists that the Secretary over-estimated the income from this source by $20,803. The controversy is over the number of livestock to which the charges for resales or reweighs for the purpose of sale would apply. The Secretary made a general estimate. He also found the number of head to which the charge would have been applicable in 1931 and 1932, and his estimate for the future was less than the average of those years. Appellant challenges the correctness of the computation and says that it rests upon an erroneous assumption that “order buyers” would pay a resale charge. The Government insists that the criticism is unjustified and points to evidence which is said to demonstrate conclusively that the Secretary’s figures as to resales and reweighs are correct, and that appellant’s argument is based on an application of the prescribed rates to “the wrong volume.” It is unnecessary to recite the evidence. We think the Government substantiates its point. ST. JOSEPH STOCK YARDS CO. v. U. S. 71 38 Opinion of the Court. The remaining question is with respect to the effect of the reduction of the other yardage charges, that is, for the yarding of livestock arriving fresh from the country; and, then, whether upon the whole case there would be such a deficiency in revenue as to establish confiscation. The revenue, of course, depends upon the quantity of livestock handled. The Secretary considered the fluctuation in receipts for a period of twenty-four years. The Government points to the statistical analysis as showing that cyclical fluctuations are characteristic of the business and that years of decline have been followed normally by an upward swing. The Secretary examined the actual receipts of each sort of livestock for the six years 1927 to 1932, inclusive. He did not attempt to make an exact prediction. Nor did he take an average of the six years. He took into consideration the lower volume of business in the later part of the period and made an estimate of the probable receipts which cannot be considered unfair. It was not an unsupported prophecy (compare West Ohio Gas Co. v. Public Utilities Comm’n, 294 U. S. 79, 82), but rather an endeavor to perform the essential duty of making “an honest and intelligent forecast” in view “of all the relevant circumstances.” Southwestern Bell Telephone Co. v. Public Service Comm’n, 262 U. S. 276, 278. Applying ‘the factors thus arrived at, the Secretary found that the prescribed rates would yield revenue sufficient to give the return above mentioned. Appellant criticises the Secretary’s estimates and insists that the prescribed rates would have been confiscatory during the entire period which the Secretary considered, making separate calculations for the period 1927 to 1931, and for 1932. The Government in turn points to necessary corrections in appellant’s statements both of income and expenses and with those adjustments shows that under the prescribed rates appellant would have had an average yearly net return, for 1927 to 1931, of approxi 72 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. mately $266,237, or about 9.7 per cent., and for the six-year period, 1927 to 1932, approximately $247,698, or about 9 per cent., on the fair value of its property as found. And while considering it to be improper to take the year 1932—the worst year of the depression period—as the basis for estimating return, the Government urges that, even in the abnormal conditions of that year, the prescribed rates would have produced a net return of 5.67 per cent. Appellant seeks to buttress its case by reference to results of operations in later years. Its brief attempts to present the transactions of 1935. But there is no evidence properly before us save that contained in the record before the Secretary. Upon that record appellant stood in the District Court, and upon that record appellant must stand here. The hearing before the Secretary, held in 1933, necessarily proceeded upon an examination of the operations of the preceding years. The Secretary examined the course of business for a period sufficiently long to afford a basis for a reasonable estimate with due regard to the years preceding, and those during, the depression. His selection, and the use he made of it, is not open to any sound criticism. If the operations of later years show that the rates have become unreasonably low, appellant has its remedy. It has had, and still has, opportunity to apply to the Secretary of Agriculture for a modification of the prescribed charges. The only request for reopening the proceeding or for an adjustment of the rates, so far as now appears, was made early in 1934 prior to the order in question and before any adequate test of the rates. We conclude that the appellant has failed to prove confiscation and the decree of the District Court is Affirmed. Mr. Justice Roberts concurs in the result. ST. JOSEPH STOCK YARDS CO. v. U. S. 73 38 Brandéis, J., concurring. Mr. Justice Brandéis, concurring. I agree that the judgment of the District Court should be affirmed; but I do so on a different ground. The question on which I differ was put thus by the District Court: “If in a judicial review of an order of the Secretary his findings supported by substantial evidence are conclusive upon the reviewing court in every case where a constitutional issue is not involved, why are they not conclusive when a constitutional issue is involved? Is there anything in the Constitution which expressly makes findings of fact by a jury of inexperienced laymen, if supported by substantial evidence, conclusive, that prohibits Congress making findings of fact by a highly trained and especially qualified administrative agency likewise conclusive, provided they are supported by substantial evidence?” 11 F. Supp. 322, 327. Like the lower court, I think no good reason exists for making special exception of issues of fact bearing upon a constitutional right. The inexorable safeguard which the due process clause assures is not that a court may examine whether the findings as to value or income are correct, but that the trier of the facts shall be an impartial tribunal; that no finding shall be made except upon due notice and opportunity to be heard; that the procedure at the hearing shall be consistent with the essentials of a fair trial; and that it shall be conducted in such a way that there will be opportunity for a court to determine whether the applicable rules of law and procedure were observed. Suits to restrain or annul an order of the Secretary of Agriculture are governed by the provision which Congress has made for reviewing orders of the Interstate Commerce Commission. Tagg Bros. & Moorhead v. United States, 280 U. S. 420, 432-433, 442-444. That provision does not, in my opinion, permit a district court 74 OCTOBER TERM, 1935. Brandéis, J., concurring. 298 U.S. to set aside an order on the ground that the Secretary-erred in making a finding of fact; and the jurisdiction of this Court to review its judgment is necessarily subject to the same limitation. As the District Court concluded that no applicable rule of law was disregarded by the Secretary; that for his findings there was ample support in the evidence; that taken together they support his conclusion that the rates are compensatory; and that the proceeding was in no respect irregular, it was in duty bound to dismiss the bill without enquiring into the correctness of his findings of subsidiary facts. First. An order of the Secretary may, of course, be set aside for violation of the due process clause by prescribing rates which, on the facts found, are confiscatory. For the order of an administrative tribunal may be set aside for any error of law, substantive or procedural. Interstate Commerce Comm’n v. Union Pacific R. Co., 222 U. S. 541, 547. Moreover, where what purports to be a finding upon a question of fact is so involved with and dependent upon questions of law as to be in substance and effect a decision of the latter, the Court will, in order to decide the legal question, examine the entire record, including the evidence if necessary, as it does in cases coming from the highest court of a State. Compare Kansas City Southern Ry. v. Albers Commission Co., 223 U. S. 573, 591; Cedar Rapids Gas Light Co. v. Cedar Rapids, 223 U. S. 655, 668-669. It may set aside an order for lack of findings necessary to support it, Florida v. United States, 282 U. S. 194, 212-215; or because findings were made without evidence to support them, New England Divisions Case, 261 U. S. 184, 203; Chicago Junction Case, 264 U. S. 258, 262-266; or because the evidence was such “that it was impossible for a fair-minded board to come to the result which was reached,” San Diego Land & Town Co. v. Jasper, 189 U. S. 439, 442; or because the ST. JOSEPH STOCK YARDS CO. v. U. S. 75 38 Brandeis, J., concurring. order was based on evidence not legally cognizable, United States v. Abilene & Southern Ry., 265 U. S. 274, 286-290; or because facts and circumstances which ought to have been considered were excluded from consideration, Interstate Commerce Comm’n v. Northern Pacific Ry., 216 U. S. 538, 544—545; Northern Pacific Ry. v. Department of Public Works, 268 U. S. 39, 44; or because facts and circumstances were considered which could not legally influence the conclusion, Interstate Commerce Comm’n v. Diffenbaugh, 222 U. S. 42, 46-47; Florida East Coast Ry. v. United States, 234 U. S. 167, 187; or because it applied a rule thought wrong for determining the value of the property, St. Louis & O’Fallon Ry. v. United States, 279 U. S. 461. These cases deal with errors of law or irregularities of procedure. Second. The contention of the appellant is that the Secretary of Agriculture erred in making findings on which rest his conclusion that the rates prescribed are compensatory. The matters here in controversy are questions of fact—subsidiary issues, about 63 in number, bearing upon two main issues of fact: What is the “value” of the property used and useful in the business? What will be the income earned on that valuation if the prescribed rates are put into force? By the Packers and Stockyards Act, the duty of investigating and determining the facts was committed by Congress to the Secretary. It was not disputed that ordinarily his findings made upon substantial evidence in properly conducted proceedings are conclusive. Tagg Brothers & Moorhead n. United States, 280 U. S. 420, 444. This Court has consistently declared in cases arising under the Interstate Commerce Act, that to “consider the weight of the evidence is beyond our province,” Western Paper Makers’ Chemical Co. v. United States, 271 U. S. 268, 271; Chicago, R. I. & P. Ry. v. United 76 OCTOBER TERM, 1935. Brandéis, J., concurring. 298 U.S. States, 274 U. S. 29, 33-34; and that courts have no concern with the correctness of the Commission’s reasoning, with the soundness of its conclusions of fact, or with the alleged inconsistency of the findings with those made in other proceedings, Virginian Ry. Co. N. United States, 272 U. S. 658, 663, 665-666. Compare New York & Queens Gas Co. v. McCall, 245 U. S. 345, 348; Georgia Ry. & Power Co. v. Railroad Commission, 262 U. S. 625, 634; Silberschein v. United States, 266 U. S. 221, 225; Ma-King Co. v. Blair, 271 U. S. 479, 483. The cases are numerous in which the attempt was made to induce this Court to annul an order of the Commission for error of fact; but in every case relief was denied. See St. Louis & O’Fallon Ry. v. United States, 279 U. S. 461, 493, n. 8. In this case also, the Court refuses to set aside the order. But it declares that an exception to the rule of finality must be made, because a constitutional issue is involved; and that the Court, weighing the evidence, must in its independent judgment determine the correctness of the findings of fact made by the Secretary. That view finds support in Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287, and in general statements made in Manufacturers Ry. Co. v. United States, 246 U. S. 457, 488-490, and other cases; but it is inconsistent with a multitude of decisions in analogous cases hereafter discussed. Third. The Fifth Amendment, like the Fourteenth, declares that property may not be taken without due process of law. But there is nothing in the text of the Constitution (including the Amendments) which tells the reader whether to constitute due process it is necessary that there be opportunity for a judicial review of the correctness of the findings of fact made by the Secretary of Agriculture concerning the value of this property or its net income. To learn what the procedure must be in a particular situation, in order to constitute due process, we ST. JOSEPH STOCK YARDS CO. v. U. S. 77 38 Brandeis, J., concurring. turn necessarily to the decisions of our Court. These tell us that due process does not require that a decision made by an appropriate tribunal shall be reviewable by another. Pittsburgh, C., C. & St. L. Ry. n. Backus, 154 U. S. 421, 426-427; Reetz v. Michigan, 188 U. S. 505, 508; Dohany v. Rogers, 281 U. S. 362, 369. They tell us that due process is not necessarily judicial process. Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 280; McMillen v. Anderson, 95 U. S. 37, 41; United States v. Ju Toy, 198 U. S. 253, 263. And they draw distinctions which give clear indication when due process requires judicial process and when it does not. The first distinction is between issues of law and issues of fact. When dealing with constitutional rights (as distinguished from privileges accorded by the Government, United States v. Babcock, 250 U. S. 328, 331) there must be the opportunity of presenting in an appropriate proceeding, at some time, to some court, every question of law raised, whatever the nature of the right invoked or the status of him who claims it. The second distinction is between the right to liberty of person and other constitutional rights. Compare Phillips v. Commissioner, 283 U. S. 589, 596-597. A citizen who claims that his liberty is being infringed is entitled, upon habeas corpus, to the opportunity of a judicial determination of the facts. And, so highly is this liberty prized, that the opportunity must be accorded to any resident of the United States who claims to be a citizen. Compare Ng Fung Ho v. White, 259 U. S. 276, 282-285, with United States v. Ju Toy, 198 U. S. 253, and Tang Tun v. Edsell, 223 U. S. 673, 675. But a multitude of decisions tells us that when dealing with property a much more liberal rule applies. They show that due process of law does not .always entitle an owner to have the correctness of find-.ings of fact reviewed by a court; and that in deciding whether such review is required, “respect must be had to 78 OCTOBER TERM, 1935. Brandéis, J., concurring. 298 U.S. the cause and object of the taking, whether under the taxing power, the power of eminent domain, or the power of assessment for local improvements, or none of these: and if found suitable or admissible in the special case, it will be adjudged to be ‘due process of law.’ ” Mr. Justice Bradley, in Davidson v. New Orleans, 96 U. S. 97, 107. Our decisions tell us specifically that the final ascertainment of the facts regarding value or income may be submitted by Congress, or state legislatures, to an administrative tribunal, even where the constitutionality of the taking depends upon the value of the property or the amount of the net income. Thus: (a) No taking of property by eminent domain is constitutional unless just compensation is paid. But in condemnation proceedings the value of the property, and hence the amount payable therefor, need not be determined by a court. “By the Constitution of the United States, the estimate of the just compensation for property taken for the public use, under the right of eminent domain, is not required to be made by a jury; but may be entrusted by Congress to commissioners appointed by a court or by the executive, or to an inquest consisting of more or fewer men than an ordinary jury.” Bauman v. Ross, 167 U. S. 548, 593. In Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 695, it was said that “there is no denial of due process in making findings of fact by the triers of fact, whether commissioners or a jury, final as to such facts, and leaving open to the courts simply the inquiry as to whether there was any erroneous basis adopted by the triers in their appraisal, or other errors in their proceedings.” In Crane v. Hahlo, 258 U. S. 142, 148, the Court said in applying the same rule to a statute which allowed a judicial review of the facts only in case of “lack of jurisdiction, or fraud, or wilful misconduct on the part of the members of the Board”: “This ST. JOSEPH STOCK YARDS CO. v. U. S. 79 38 Brandeis, J., concurring. afforded ample protection for the fundamental rights of the plaintiff in error, and the taking away of the right to have examined mere claims of honest error in the conduct of the proceeding by the Board did not invade any federal constitutional right.” See also, United States v. Jones, 109 U. S. 513, 519; Backus v. Fort Street Union Depot Co., 169 U. S. 557, 569. (b) No taking of property by taxation is constitutional unless the exaction is laid according to value, income or other measure prescribed by law. But Congress has, with the sanction of this Court, broadly given finality to the determination by the Board of Tax Appeals of the facts concerning income. By its legislation the jurisdiction of courts is limited to deciding “whether the correct rule of law was applied to the facts found; and whether there was substantial evidence before the Board to support the findings made.” Helvering v. Rankin, 295 U. S. 123, 131; Old Mission Portland Cement Co. v. Helvering, 293 U. S. 289, 294. Compare Cheatham v. United States, 92 U. S. 85, 88-89. No court may pass upon the correctness in fact of any finding of the Board. (c) The due process clause is not violated by giving in tariff acts finality to the valuations made by appraisers of imported merchandise belonging to American citizens. Hilton v. Merritt, 110 U. S. 97, 107. “It was certainly competent for Congress,” said the Court in Passavant v. United States, 148 U. S. 214, 219, “to create this board of general appraisers, called ‘legislative referees’ in an early case in this court, (Rankin v. Hoyt, 4 How. 327, 335,) and not only invest them with authority to examine and decide upon the valuation of imported goods, when that question was properly submitted to them, but to declare that their decision ‘shall be final and conclusive as to the dutiable value of such merchandise against all parties interested therein.’ ” 80 OCTOBER TERM, 1935. Brandeis, J., concurring. 298 U.S. (d) The due process clause is not violated by legislation which requires a fire insurance policy to provide that the amount of the loss (and hence values) shall be determined by a board of appraisers; and that their decision, if not grossly excessive, or inadequate, or procured by fraud, shall be conclusive as to the amount of the loss. Hardware Dealers Mutual Fire Insurance Co. v. Glidden Co., 284 U. S. 151. (e) The due process clause is not violated by giving finality to assessments of value made for the purpose of ad valorem taxation, although in those proceedings the opportunity for a hearing is far less ample than under the statute here in question. Compare State Railroad Tax Cases, 92 U. S. 575, 610; Kentucky Railroad Tax Cases, 115 U. S. 321; King v. Mullins, 171 U. S. 404, 429-431. As we said in San Diego Land & Town Co. v. Jasper, 189 U. S. 439, 446: “We do not sit as a general appellate board of revision for all rates and taxes in the United States”; and in Coulter v. Louisville & Nashville R. Co., 196 U. S. 599, 607: “Of course, no court would venture to intervene merely on the ground of a mistake of judgment on the part of the officer to whom the duty of assessment was entrusted by the law.” Answering the suggestion of possible error in the final action of a board in valuing and assessing railroad property, the Court said in Kentucky Railroad Tax Cases, 115 U. S. 321, 335: “Such possibilities are but the necessary imperfections of all human institutions, and do not admit of remedy; at least no revisory power to prevent or redress them enters into the judicial system, for, by the supposition, its administration is itself subject to the same imperfections.” In Crane v. Hahlo, 258 U. S. 142, 148, the Court intimating that even judges may err in their determinations of fact, held that legislators might, ST. JOSEPH STOCK YARDS CO. v. U. S. 81 38 Brandeis, J., concurring. in proceeding for the taking of property, act on “the policy that the greater good is sometimes served by making certain classes of decisions final and ending litigation, even - though in a particular case the individual is prevented by review from correcting some error which has injured him.” These cases show that in deciding when, and to what extent, finality may be given to an administrative finding of fact involving the taking of property, the Court has refused to be governed by a rigid rule. It has weighed the relative values of constitutional rights, the essentials of powers conferred, and the need of protecting both. It has noted the distinction between informal, summary administrative action based on ex parte casual inspection or unverified information, where no record is preserved of the evidence on which the official acted, and formal, deliberate quasi-judicial decisions of administrative tribunals based on findings of fact expressed in writing, and made after hearing evidence and argument under the sanctions and the safeguards attending judicial proceedings. It has considered the nature of the facts in issue, the character of the relevant evidence, the need in the business of government for prompt final decision. It has recognized that there is a limit to the capacity of judges; and that the magnitude of the task imposed upon them, if there be granted judicial review of the correctness of findings of such facts as value and income, may prevent prompt and faithful performance. It has borne in mind that even in judicial proceedings the finding of facts is left, by the Constitution, in large part to laymen. It has enquired into the character of the administrative tribunal provided and the incidents of its procedure. Compare Humphrey’s Executor v. United States, 295 U. S. 602, 628. And where that prescribed for the particular class of takings appeared “appropriate to the case, and just to the parties to be 65773°—36-------6 82 OCTOBER TERM, 1935. Brandéis, J., concurring. 298 U.S. affected,” and “adapted to the end to be attained,” Hagar v. Reclamation District, 111 U. S. 701, 708, the Court has held it constitutional to make the findings of fact of the administrative tribunal conclusive. Thus, the Court has followed the rule of reason. Fourth. Congress concluded that to give finality to the findings of the Secretary of Agriculture of the facts as to value and income is essential to the effective administration of the Packers and Stockyards Act. The Ben Avon case, and the statements in Manufacturers Ry. Co. v. United States, and casual references in other cases, should not lead us to graft upon the rule discussed, and so widely applied to other takings, a disabling exception applicable to rate cases. In none of the rate cases relied upon was there any reason given for denying to Congress that power; nor was there mention of the many decisions in which the power to prescribe finality was upheld. In none was there noted the distinction between challenging the correctness of findings of fact on which rest the conclusion as to confiscation, and challenging the conclusion of law as to confiscation on facts found. Here, some reasons have been offered in support of making the exception ; but no reason given seems to me sound. (a) It is urged that since Congress did not, and could not, delegate to the Secretary authority to prescribe a confiscatory rate, the facts in issue are jurisdictional and, hence, the Court must have power to review them. But, as was said in Oklahoma Operating Co. v. Love, 252 U. S. 331, 336: “The challenge of a prescribed rate as being confiscatory raises a question not as to the scope of the Commission’s authority but of the correctness of the exercise of its judgment.” Therefore, Crowell v. Benson, 285 IT. S. 22, has no application here. (b) It is said that, since regulating rates is legislation, courts must have the same power to review facts which they possess in passing on the constitutionality of ST. JOSEPH STOCK YARDS CO. v. U. S. 83 38 Brandeis, J., concurring. statutes—otherwise the supremacy of law could be impaired by delegation to an administrative tribunal of a power to make final determinations that the legislature lacks. To that argument there are several answers. It fails to note that a rate order may be complained of as being confiscatory, not because of error in a finding of value or income, but because the regulating body has, in reaching its conclusions, ignored established principles or incontestable facts, or been guilty of dishonesty or of other irregularity in the proceeding. Whenever a legislative body regulates a subject within the scope of its power, a presumption of constitutionality prevails, in the absence of some factual foundation of record for overthrowing the regulation, O’Gorman & Young v. Hartford Fire Insurance Co., 282 U. S. 251, 257—258; and this rule extends to such action by an administrative body. Pacific States Box & Basket Co. v. White, 296 U. S. 176, 185-186. If there be in the record conflicting evidence as to the facts assumed, a court may not substitute its independent judgment for that of the legislative body. Mere denial of facts relied upon as conditioning the validity of legislation does not confer upon a court authority to decide what is called the truth; that is, the absolute existence in reality of facts alleged. “Where the constitutional validity of a statute depends upon the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the legislature; and if the question of what the facts establish be a fairly debatable one, it is not permissible for the judge to set up his opinion in respect of it against the opinion of the lawmaker.” Radice n. New York, 264 U. S. 292, 294. Here, the Court’s duty is to determine merely whether there was evidence upon which reasonable men could have found as the Secretary did, with regard to value and income. Obviously the case at bar is not one in which “it was 84 OCTOBER TERM, 1935. Brandéis, J., concurring. 298 U.S. impossible for a fair-minded board to come to the result which was reached.” Compare Van Dyke v. Geary, 244 U. S. 39, 48-49. Moreover, argument based on the analogy of the review of statutes fails to note the distinction between determinations of fact made in a quasi-judicial proceeding surrounded by all the safeguards which attend trials by a court, and assumptions, or conclusions, as to facts made by a legislature on information which lacks those safeguards. It fails to note also the subsidiary character of the issue involved in a finding of value or income; and that it is only as to these subsidiary issues that finality of the finding is asserted here. The supremacy of law demands that there shall be opportunity to have some court decide whether an erroneous rule of law was applied; and whether the proceeding in which facts were adjudicated was conducted regularly. To that extent, the person asserting a right, whatever its source, should be entitled to the independent judgment of a court on the ultimate question of constitutionality. But supremacy of law does not demand that the correctness of every finding of fact to which the rule of law is to be applied shall be subject to review by a court. If it did, the power of courts to set aside findings of fact by an administrative tribunal would be broader than their power to set aside a jury’s verdict. The Constitution contains no such command. Fifth. The history of this case illustrates that regulation cannot be effective unless the legality of the rates prescribed may, if contested, be determined with reasonable promptness. Six and one-half years have elapsed since the Secretary of Agriculture concluded that the rates of this utility were so high as to justify enquiry into their reasonableness, and nearly two years since entry of his order prescribing the reduced rates. In the judgment of the lower court and of this Court the attack upon the order ST. JOSEPH STOCK YARDS CO. v. U. S. 85 38 Brandeis, J., concurring. reducing them was unwarranted. But the rates of 1929 have remained in force; and, despite the supersedeas and injunction bonds, there will be practically no redress for the wrong done to the business community throughout the long years in which excessive rates have been exacted. Neither party is chargeable with lack of diligence in the investigation or litigation; and there is no suggestion of undue delay on the part of either court. The long delay is due to other causes. The investigation of the Company’s rates was ordered October 9, 1929. The hearing began December 2, 1929. All the subsidiary enquiries of fact commonly incident to applying the rule of Smyth v. Ames, 169 U. S. 466, were entered upon. After the hearing had closed, the Company sought to have it reopened for the admission of evidence showing how the changed conditions of business since 1929 would affect plaintiff’s income and the net return on the property used. This application was refused by the Secretary; and he entered an order fixing maximum rates, which, on his valuation of the property and estimate of earnings, would have yielded a return of 7i/2 per cent, if in effect in 1928. Thereupon, the Company filed a bill in the District Court to set aside the order on the ground that it would deprive petitioner of its property in violation of the due process clause. That court heard additional evidence, as well as receiving the record of the proceedings before the Secretary. It considered, but did not pass on, the merits. For it set aside the order on the ground that the Secretary should have acceded to the request to reopen the hearings. St. Joseph Stock Yards Co. v. United States, 58 F. (2d) 290. The new hearing was begun January 10, 1933 and did not close until February 16, 1933. Thereafter, the Secretary entered the order here under review; and the second suit followed which is here on appeal. 86 OCTOBER TERM, 1935. Brandéis, J., concurring. 298 U.S. Sixth. The abstract of record made before the Secretary and submitted to the District Court for review consisted of 1648 printed pages of evidence, besides 111 exhibits, many being extensive. Twenty-two witnesses testified orally. The 71 exhibits certified to this Court alone comprise 1358 pages of tabulations or like detail. In addition they contain 18 graphs, 30 maps or photographs, and 600 pages of reading matter. Consideration of most of the evidence presented to the Secretary was deemed essential to a proper determination by the District Court of the issues of fact now controverted. Consideration of most of the evidence introduced below is now deemed by counsel necessary for a proper decision of the case by this Court. The condensed narrative statement of the evidence other than exhibits fills 721 pages of the printed record in this Court. Seventy-one exhibits (although not required to be printed) were required to be transmitted to this Court as a part of the record before us. The number of pages of the evidence (including exhibits) before us bearing more or less specifically upon the question of confiscation is 2717. The total number of pages— briefs, exhibits, and evidence—before this Court is 3466. The magnitude of the task involved in a judicial review which requires a determination by the Court, in its independent judgment, of the correctness of the findings of fact as to value and income which the Secretary made, cannot be measured by looking alone at the volume of the evidence. The multiplicity of the issues, and the character of the evidence bearing on them respectively, impose a peculiar burden. The findings as numbered and lettered by the Secretary total 215. The number of determinations of fact bearing upon confiscation involved in these findings is, roughly, 250, as gathered from the 108-page opinion of the Secretary. To decide whether any one of these 250 determinations of fact alleged to be errone- ST. JOSEPH STOCK YARDS CO. v. U. S. 87 38 Brandeis, J., concurring. ous is, or is not, correct, involves separate examination of the evidence relating specifically to it; since as to each of these determinations the reviewing court is called upon to make a decision, in the exercise of an independent judgment. Such a decision involves, in many cases, weighing specific evidence and resolving conflicts. (a) There is controversy as to the extent to which property owned by the Company is used or useful. That enquiry relates to 52 different items. The testimony and exhibits bearing upon this issue occupy 194 pages. On it there are approximately 50 findings. The correctness of only one of these is controverted here. (b) There is controversy as to the value of the land. It consists of 60 different tracts. The testimony and exhibits bearing upon their value occupy 596 pages (the exhibits number 20). On this issue there are about 10 findings. The correctness of 3 is controverted here, dealing with the land in a single “zone.” (c) There is controversy as to the value of the structures. It deals with reproduction costs; it requires separate consideration of materials and labor, of overheads and depreciation. The testimony and exhibits occupy 629 pages (the exhibits number 12). On these issues there are some 40 findings. Those dealing with depreciation are controverted here. (d) There is controversy as to going concern value. The testimony and exhibits on this issue occupy 113 pages. The Secretary decided that no separate allowance should be made. That conclusion is controverted here. (e) There are controversies as to the estimated income, as to the expenses, and as to charges. The testimony and exhibits bearing upon them occupy, in the aggregate, 663 pages (the exhibits number 42). On these • issues there are approximately 140 determinations. Of these about 50 seem to be controverted here. 88 OCTOBER TERM, 1935. Brandéis, J., concurring. 298 U.S. The decisions by the reviewing court on the correctness of many of these determinations must depend upon its judgment as to the credibility of the witnesses. For instance, the Company insists, as to the land in one zone, that it is worth, on the average, 25 cents per square foot. The Secretary found it was worth 16 cents. On that issue 5 witnesses testified. This case, like a laboratory experiment, presents the task of rate-regulation in its simplest form. The rates to be regulated are but few in number. The rate base is ordinary stockyard property small in extent as compared with some plants. The Secretary valued it at $2,743,000; and the Company claims it is worth $1,010,-406 more. The Secretary found that, at the prescribed rates, the receipts would yield a net income of $195,564; the Company claims that it would not have been more than $81,026 in 1932 had these rates been in effect. But, under the prevailing view, an enquiry of the scope described was necessary, although involving hearings and lawsuits so protracted as to frustrate rate-regulation. Seventh. The greater delay, and the cost, in rate investigations affecting the larger utilities, is illustrated by cases which have come before this Court in recent years. (a) Chicago Telephone Rates. On September 13, 1921, the Illinois Commerce Commission, the regulating body, issued an order that the Company show cause why its rates should not be reduced. The hearing began November 17, 1921, and closed July 31, 1923. On August 16, 1923, the Commission entered an order reducing the rates, to become effective October 1, 1923. Before that date, enforcement was enjoined by the federal court, on a bill which charged that the rates prescribed were confiscatory. On April 30,1934, this Court sustained the validity of the rate order entered August 16,1923. Thus the rates became effective twelve and a half years after the com- ST. JOSEPH STOCK YARDS CO. v. U. S. 89 38 Brandeis, J., concurring. mencement of the investigation; and nearly eleven years after they were prescribed. On June 11, 1934, the District Court ordered the Company to reimburse consumers who had been charged excessive rates a sum estimated, in April, 1936, as almost $19,000,000; and, on July 23, 1934, directed that the lawyers who appeared for the consumers in and after 1929 should receive as fees an amount equal to 7^ per cent of the refunds. By March 31, 1936, 1,153,515 payments had been made. The task of making the refunds, only three-quarters complete, has required a special force of 2,000 of the Company’s employees, and is said to have cost it (to November 30, 1935) $2,575,412.89. Over $2,100,000 remains to be disposed of or paid. The transcript of evidence and arguments at the hearing before the Illinois Commission fills about 4500 pages; and there were besides more than 200 elaborate exhibits. The presentation of the evidence before the District Court at the first hearing on the merits occupied more than two months, resulting in a printed record of over 3000 pages of testimony and 281 elaborate exhibits. The taking of depositions for presentation to that court on the second hearing on the merits, and other preparations for trial, took over a year. The hearing itself occupied five months, and resulted in a record of 16,168 pages. The record on the first appeal to this Court consisted of seven large volumes. The record of the additional evidence on the second appeal to this Court filled nine volumes; and the appellant’s brief here, with appendix, nearly 700 pages. The investigation of rates for Chicago continues. On July 10, 1934, the Commission asked the Company to show cause why its rates should not be reduced. The latter spent over a year and a half preparing its case for presentation to the Commission, at a cost, including a new appraisal and inventory, of more than $1,200,000. Hearings are now in progress. 90 OCTOBER TERM, 1935. Brandeis, J., concurring. 298 U.S. For the history of the investigation and litigation, see in this Court: 269 U. S. 531; 282 U. S. 133; 283 U. S. 794; 283 U. S. 808; 292 U. S. 151; in the lower court: 39 F. (2d) 157; 38 F. (2d) 77; 3 F. Supp. 595; in the Commission: 7 Opinions and Orders of Ill. P. U. Comm. 1920, 888; 8 id. 1921, 372; 3 Opinions and Orders of Ill. Commerce Comm. 1924, 75-99; 6th Administrative Report of Directors of Departments, Ill. Commerce Comm. 1923, 975; 7th id, 1924, 1166; 17th Annual Report Ill. Commerce Comm. 1934, 3, 18, 42; 18th Annual Report Ill. Commerce Comm. 1935, 20. See also N. Y. Times, May 1, 1934, at 10; June 12, at 10; October 15, at 27; Report to Stockholders of Ill. Bell Telephone Co. 1935, 7, 8, 15. (5) New York telephone rates. In the winter of 1919 the Company increased its rates. Protests followed; and on October 18, 1920, hearings thereon began before the Public Service Commission. On March 3, 1922, a temporary order slightly reducing certain rates issued. Enforcement was enjoined by the federal court on a bill which charged that the rates prescribed were confiscatory. Since that time, the rates prescribed, and to be prescribed, have been continuously under investigation and litigation. Before the Commission there were, between 1920 and 1926, 189 days of hearings, 450 witnesses being examined orally. The evidence introduced fills, in the aggregate, 26,417 pages; and there were, in addition, 1,043 elaborate exhibits, one alone being in 22 volumes. Hearings were also held from January 28, 1930, to April 18, 1930. The opinions of the Commission in these proceedings fill 396 pages. In the District Court the hearings before the master occupied 416 days and extended over a period of four years, 610 witnesses being examined orally. They were recalled a total of 688 times. The evidence of that hearing fills 36,893 pages; and there were in addition 3,324 exhibits. The decree below was entered November ST. JOSEPH STOCK YARDS CO. v. U. S. 91 38 Brandeis, J., concurring. 7, 1929. The Company’s counsel then labored two years in preparing a draft of the condensed narrative statement of the evidence required for the transcript of record on the appeal to this Court. On submitting this draft to counsel for the Commission, the City, and the State, many errors were discovered. On 3000 of the items, counsel disagreed; months were devoted to composing the differences; and finally the items on which counsel could not agree were settled by the lower court. On November 14, 1933, more than four years after entry of the decree appealed from, the Company filed here a record of 5700 pages. On February 19, 1934, that appeal' was dismissed. On May 2, 1934, the Commission instituted a new investigation into the rates of the Company. Hearings began May 10, 1934, and are still going on. The subjects covered are again those required by the rule of Smyth v. Ames—reproduction cost, going value, depreciation, and so forth. Up to April 14,1936, 86 hearings had been had, stretching through every month but one since the beginning of the enquiry. One hundred and forty witnesses had been heard, and 10,840 pages of testimony taken. The exhibits already introduced total 397, one being in 34 volumes. For the history of the investigation and litigation, see in this Court: 261 U. S. 312; 262 U. S. 43; 291 U. S. 645; in the lower court: S. D. N. Y. No. 23-252, in equity, May 25, 1922 (not reported); 300 Fed. 822; 11 F. (2d) 162; 36 F. (2d) 54; in the Commission: 14th Annual Report, Pub. Ser. Comm. (2d Dist.) 1920, 79; Report Pub. Ser. Comm. 1921, 13, 234-254, 369-389, 398-407, 447-458; 1922, 15; 1923, 13, 93-214; 1924, 13, 127-138; 1925, 13; 1926, 17, 170-273; 1927, 14; 1928, 18; 1929, 16; 1930, 42, 134-145, 213-294; 1933,11. See also Report of Pub. Ser. Comm, to State Senate Relative to Rates of N. Y. Telephone Co., Legis. Doc. No. 73, 1926 (254 pages); Report of Commission on Revision of N. Y. Pub. Ser. Comm. Law, Legis. 92 OCTOBER TERM, 1935. Brandeis, J., concurring. 298 U.S. Doc. No. 75, 1930, 28-31, 262-268; “Your Company and the Rate Decision,” a bulletin issued for the use of its employees by the N. Y. Telephone Co., 1930; Nathaniel Gold, “One More Telephone Decision,” 15 Nat. Mun. Rev. 419; “The New York Telephone Rate Decision,” 19 id. 180; “An Example of Rate Litigation and Its Significance,” 23 id. 584; John Bauer, “An Example of Futility in Present Methods of Public Utility Regulation,” 15 Am. Econ. Rev. 586; Leland Olds, “The Public Utility Issue,” 24 Yale Review (n. s.) 704, 706-707; New York Times, May 2, 1934, at 1; May 11, at 1; May 17, at 25; September 21, at 25; February 27, 1935, at 20; March 30, at 7. Eighth. In deciding whether the Constitution prevents Congress from giving finality to findings as to value or income where confiscation is alleged the Court must consider the effect of our decisions not only upon the function of rate regulation, but also upon the administrative and judicial tribunals themselves. Responsibility is the great developer of men. May it not tend to emasculate or demoralize the rate-making body if ultimate responsibility is transferred to others? To the capacity of men there is a limit. May it not impair the quality of the work of the courts if this heavy task of reviewing questions of fact is assumed? The obstacles encountered in the case at bar and in the regulation of the rates of the large utilities are attributable, in the main, to the Court’s adherence to the rule declared in Smyth v. Ames for determining the value of the property. In Missouri ex rel. Southwestern Bell Telephone Co. v. Public Service Comm’n, 262 U. S. 276, 289, I stated my reasons for believing that the Constitution did not require the Court to adopt that rule which so seriously impairs the power of rate-regulation. But since the decision of Smyth v. Ames is adhered to, there is the greater need of applying to cases in which rateregulation is alleged to be confiscatory the rule of reason ST. JOSEPH STOCK YARDS CO. v. U. S. 93 38 Stone and Cardozo, JJ., concurring. under which the Court has sanctioned, in other cases of taking, the legislative provision giving finality to quasijudicial findings of value and income by administrative tribunals. Surely, all must agree with the Secretary of Agriculture that: “If rate regulation is to be effective, there must come at some time an end of hearings and a decision of the questions involved.” In Chicago, Burlington Quincy Ry. v. Babcock, 204 U. S. 585, 598, we said of valuations made by the State Board of Equalization and Assessment: “Within its jurisdiction, except as we have said, in the case of fraud or a clearly shown adoption of wrong principles, it is the ultimate guardian of certain rights. The State has confided those rights to its protection and has trusted to its honor and capacity as it confides the protection of other social relations to the courts of law. Somewhere there must be an end.” Congress concluded that a wealthy and litigious utility might practically nullify rate regulation if the correctness of findings by the regulating body of the facts as to value and income were made subject to judicial review. For that conclusion experience affords ample basis. I cannot believe that the Constitution, which confers upon Congress the power of rate-regulation, denies to it power to adopt measures indispensable to its effective exercise. Mr. Justice Stone and Mr. Justice Cardozo concurring in the result: We think the opinion of Mr. Justice Brandéis states the law as it ought to be, though we appreciate the weight of precedent that has now accumulated against it. If the opinion of the Court did no more than accept those precedents and follow them, we might be moved to acquiescence. More, however, has been attempted. The opinion reexamines the foundations of the rule that it declares, and finds them to be firm and true. We will not go so far. 94 OCTOBER TERM, 1935. Argument for Petitioner. 298 U.S. The doctrine of stare decisis, however appropriate and even necessary at times, has only a limited application in the field of constitutional law. See the cases collected by Brandeis, J., dissenting, in Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 407, 408. If the challenged doctrine is to be reconsidered, we are unwilling to approve it. For the reasons stated by Mr. Justice Brandeis the decree should be affirmed. HINES, ADMINISTRATOR OF VETERANS’ AFFAIRS, v. STEIN, GUARDIAN. CERTIORARI TO THE SUPERIOR COURT OF PENNSYLVANIA, WESTERN DISTRICT. No. 659. Argued April 6, 7, 1936.—Decided April 27, 1936. A state court which has appointed a guardian for an incompetent veteran has authority to order payment, out of funds belonging to the veteran and in the hands of such guardian, of a reasonable sum for services and expenses of an attorney, who represented the guardian in a claim before the Veterans’ Administration for reinstatement of the veteran’s compensation. Executive and administrative regulations (pursuant to Acts of Congress, 48 Stat. 9; U. S. C., Title 38, §§ 111, 114, 115) limiting the fees of attorneys in pension matters are inapplicable and do not prevent. P. 97. 118 Pa. Super. Ct. 549; 180 Atl. 577, affirmed. Certiorari, 297 U. S. 700, to review the affirmance by the court below of an order of the Court of Common Pleas of Pennsylvania granting permission to the guardian of an incompetent veteran to pay fees and expenses of an attorney at law. Hines, the petitioner here, had intervened. The Supreme Court of the State refused an appeal. Messrs. James T. Brady and Edward E. Odom, with whom Messrs. Y. D. Mathes and Vincent A. Baldauf were on the brief, for petitioner. HINES v. STEIN. 95 94 Argument for Petitioner. The United States has the power to limit fees payable to attorneys for legal services rendered in behalf of veterans in connection with their claims for pension or other benefits due or alleged to be due from the United States. Phillips v. Ballinger, 37 App. D. C. 46; Calhoun v. Massie, 253 U. S. 170; Frisbie v. United States, 157 U. S. 160; United States v. Hall, 98 U. S. 343; Spicer v. Smith, 288 U. S. 430; In re Shinberg, 263 N. Y. 354; In re Minor’s Guardianship, 164 Miss. 329; Hines v. McCoy, 172 Miss. 153; Hines v. Paregol, Il F. (2d) 953; Hines v. Clark, 252 N. Y. S. 777; Hines v. Hook, 89 S. W. (2d) 52, 55 (Mo.); Veterans’ Bureau v. Thomas, 156 Va. 902. The United States statutes and regulations are applicable to this case, and are binding upon the state court. Const., Art. VI. Distinguishing: McIntosh v. Aubrey, 188 U. S. 122; State ex rel. Smith v. Commissioners, 132 Kan. 233; Spicer v. Smith, 288 U. S. 430; Trotter v. Tennessee, 290 U. S. 354. The fee allowed by the Superior Court was illegal for (a) it was contrary to the statutes as to amount, and (b) it was contrary to the statutes and the regulations (Executive Orders) as to method of allowance and payment. Welty v. United States, 2 F. (2d) 562, 564; United States v. Moyers, 15 Fed. 411; Hall v. Kimmer, 61 Mich. 269; Smart v. White, 37 Me. 333; Christie v. Steger’s Administrator, 56 S. W. 521 (Ky.); In re Minor’s Guardianship, 164 Miss. 329; Hines v. McCoy, 172 Miss. 153; United States v. Reynolds, 48 Fed. 721; United States v. Nice-wonger, 20 Fed. 438; United States v. Brown, 40 Fed. 457; United States v. Van Leuven, 62 Fed. 52, cited in Calhoun v. Massie, 253 U. S. 173; Wolcott v. Frissell, 134 Mass. 1. Distinguishing: Caverly v. Robbins, 149 Mass. 16; Hall v. Kimmer, 61 Mich. 269; Ladd v. Boston, 64 N. H. 613. The construction now asserted by petitioner as proper has the sanction of administrative approval over a long 96 OCTOBER TERM, 1935. Opinion of the Court. 298U.S. period of years, and apparently has not been questioned in any appellate court heretofore except in Phillips v. Ballinger, 37 App. D. C. 46. The fee being illegal, the contract therefor was invalid, and the court could not enforce it. It is well settled law, as stated by the Supreme Court of Pennsylvania in Way-choff v. Waychoff, 309 Pa. 300, that a contract which is illegal or against public policy will not be enforced. Mr. David A. Reed for respondent. Mr. Justice McReynolds delivered the opinion of the Court. Respondent, as guardian for her son, an incompetent veteran, applied to the Court of Common Pleas, Allegheny County, Pennsylvania, to whose orders she was subject (50 P. S. § 941 et seq.), for permission to pay “out of the funds in her hands the sum of $100.00 to Hallock C. Sherrard, Esq., for his services and expenses and making the trip to Washington, D. C., to represent her in her claim for her said son’s estate before said Board of Veterans’ Appeals.” The Administration had discontinued the veteran’s compensation of $100.00 per month, upon the ground that disability existed prior to enlistment. Request for reinstatement was set for hearing before the Board of Veterans’ Appeals at Washington, March 28, 1934. Respondent held for the estate $2,000.00, apparently pension money received from the Veterans’ Administration. Mr. Sherrard had represented her since appointment and acted upon her request. Petitioner, Frank T. Hines, appearing by counsel, admitted rendition of the services as stated. Reasonableness of the charge, if not inhibited by law, was not questioned. He denied the guardian’s authority to contract for the expenditure and insisted that the application for permission to pay was not according to law. He asked HINES v. STEIN. 97 94 Opinion of the Court. that the prayer be limited to actual expenses incurred and a fee of $2.00. The Court of Common Pleas granted the guardian permission to pay as she had prayed; upon the Administrator’s appeal, the Superior Court approved; the Supreme Court refused further hearing. Petitioner submits that Congress, proceeding within its delegated power, directly, or through authorized executive action, has prescribed permissible fees for services such as those rendered by Sherrard, and directed how they may be paid. Also has inhibited payment of other or different sum in any manner. We need not consider the extent of Congressional power in this regard, since we are of opinion that, properly construed, the provisions relied upon do not apply where payments like the one here involved are directed by a state court having jurisdiction over the guardian of an incompetent veteran. The petition for certiorari asserts that the objections to respondent’s application to the Court of Common Pleas were based upon the President’s Order of March 31, 1933 (Veterans’ Regulation No. 10), permitted by §§ 4 and 7 of the Act of March 20, 1933, c. 3, 48 Stat. 9; “Instructions” promulgated by the Administrator under authority of that Order; and §§ 111, 114 and 115, Title 38, u. s. c. It is true that the provisions cited place general restrictions upon the fees of attorneys in connection with pension matters and prescribe the method of payment. But we find nothing in any of these Acts of Congress which definitely undertakes to put limitation upon state courts in respect of guardians or to permit any executive officer, by rule or otherwise, to disregard and set at naught orders by courts to guardians appointed by them. Conflict in respect of such matters between state courts and the federal government, its officers or bureaus would be un-65773°—36------7 98 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S., seemly, perhaps extremely unfortunate. And in the absence of compelling language, we cannot conclude that there was intention to create a situation where this probably would occur. During many years, Congress has recognized the propriety, if not the necessity, of entrusting the custody and management of funds belonging to incompetent pensioners to fiduciaries appointed by state courts, without seeking to limit judicial power in respect of them. To the contrary, it has directed that whenever any guardian, curator, or conservator fails properly to execute his trust, etc., the Administrator may “appear in the court which has appointed . . . and make proper presentation of such matters.” C. 723, § 2, 44 Stat. 792; c. 510, § 2, 49 Stat. 607; 38 U. S. C., § 450. Authority of the state courts over guardians for incompetents is thus definitely recognized. The Administrator is expressly empowered to suspend further payments if the guardian is found to be acting improperly; so much is possible without conflict. Nothing brought to our attention would justify the view that Congress intended to deprive state courts of their usual authority over fiduciaries, or to sanction the promulgation of rules to that end by executive officers or bureaus. The broad purpose of regulations in respect of fees of those concerned with pension matters is to protect the United States and beneficiaries against extortion, imposition or fraud. Calhoun v. Massie, 253 U. S. 170, 173. Dangers of this character are not to be expected in connection with the orderly exercise of authority by state courts over appointees properly entrusted with pension funds. The purpose in view is for consideration when the true meaning of statute or rule is sought. The challenged decree must be Affirmed. CHICAGO G. W. R. CO. v. RAMBO. 99 Opinion of the Court. CHICAGO GREAT WESTERN RAILROAD CO. v. RAMBO, ADMINISTRATRIX. CERTIORARI TO THE SUPREME COURT OF MINNESOTA. No. 696. Argued April 1, 1936.—Decided April 27, 1936. 1*. Upon review of a judgment of a state court in a case under the Federal Employers’ Liability Act, this Court must examine the record and determine for itself whether, as matter of law, the evidence is sufficient to sustain a finding of negligence. P. 101. 2. Evidence held insufficient to sustain a finding that the railroad • had negligently failed to equip its locomotive with a headlight of the illuminating power required by federal law. P. 101. 195 Minn. 331; 263 N. W. 112, reversed. Certiorari, 297 U. S. 701, to review a judgment affirming a judgment against the railroad company in an action under the Federal Employers’ Liability Act. Mr. Harry S. Steams, with whom Messrs. Ralph A. Stone and Walter H. Jacobs were on the brief, for petitioner. Mr. Harold E. Stassen, with whom Mr. Elmer J. Ryan was on the brief, for respondent. Mr. Justice McReynolds delivered the opinion of the Court. Half an hour after sunset (5:10), December 8, 1933, respondent’s intestate, a signal maintainer, while riding his gasoline speeder over the rails, was run down and killed three miles south of Hampton, Minnesota, by petitioner’s passenger train from Minneapolis, moving down grade sixty miles per hour. Darkness had come; the weather was cloudy; the train late; an hour earlier it had collided with a truck and killed a man. Relying upon the Federal Employers’ Liability Act, 45 U. S. C., c. 2, §§ 51-59, and the Boiler Inspection Act as 100 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. amended June 7, 1924, 45 U. S. C., c. 1, §§ 22-34, respondent sued for damages in Dakota County District Court. The jury found for her; judgment upon the verdict was affirmed by the Supreme Court. 195 Minn. 331; 263 N. W. 112. Several acts of negligence were alleged, but the trial court submitted only one to the jury: Failure to equip the locomotive with a headlight of the illuminating power required by federal law*. Section 23 of the Boiler Inspection Act is in the margin.1 Under permission of that Act, the Interstate Commerce Commission adopted the following rule:— “129. Each locomotive used in road service between sunset and sunrise shall have a headlight which shall afford sufficient illumination to enable a person in the cab of such locomotive who possesses the usual visual capacity required of locomotive enginemen to see in a clear atmosphere, a dark object as large as a man of average size standing erect at a distance of at least 800 feet ahead and in front of such headlight; and such headlight must be maintained in good condition.” The Supreme Court declared:—“Since there was no motion for new trial, the assignments of error reach only the question whether there is any substantial evidence in support of the judgment. As stated, the sole act of negligence upon which the jury could base a recovery, 1 “Sec. 23. It shall be unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb, and unless said locomotive, its boiler, tender, and all parts and appurtenances thereof have been inspected from time to time in accordance with the provisions of sections 28, 29, 30, and 32 and are able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for.” CHICAGO G. W. R. CO. v. RAMBO. 101 99 Opinion of the Court. under the charge of the court, was a violation of the quoted rule as to headlight; and, if defendant was negligent in that respect, is there sufficient evidence that the deficient headlight was the proximate cause of Rambo’s death? The quantum of proof must measure up to the rule clearly and adequately stated in Baltimore & Ohio R. Co. v. Groeger, 266 U. S. 521.” It held the evidence adequate. In cases like this, we must examine the record and determine for ourselves whether as matter of law there is enough to sustain a finding of negligence. Chicago, M. & St. P. R. Co. v. Coogan, 271 U. S. 472, 474; Atchison, T. & S. F. Ry. Co. v. Saxon, 284 U. S. 458, 459. The following excerpt from its opinion indicates the view of the Supreme Court. “It is true that there is direct proof that the headlight was inspected at the time the locomotive was attached to the train in Minneapolis and when it arrived at its destination at Oelwein, Iowa, and that it then satisfied the requirement of rule 129; also, that it was burning brightly when the train passed Hampton and shortly after the accident when the chief electrician of defendant, who happened to be on the train, having walked to the front thereof when the emergency stop was made, ascertained, and so testified at the trial, that the track ahead was illuminated properly for more than 800 feet. But this notwithstanding, we think there are facts testified to which authorized the jury in finding that the headlight did not comply with the standard fixed under the Federal Boiler Inspection Act. Most persuasive of this is the testimony of the engineer himself, who testified that he was watching the straight track ahead but could see no object thereon until he was within 500 feet of what he took to be a couple of dogs, and not until he came 100 or more feet nearer could he make out that it was a man on a speeder. There is no suggestion that the engineer did not have the visual 102 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. capacity required of locomotive engineers. The fact that Rambo was seen to make no move to leave the speeder indicates that the headlight did not cast its rays sufficiently around where he was so as to give warning of the approach of the train. There is evidence to show that a person on a running speeder can quickly and without great danger swing himself clear of the rails. Then there is the testimony of a 15 year old lad, who lived adjacent to the track where Rambo was run down and who witnessed the accident, that while he heard a speeder coming he could not see it until the train which he heard and saw approaching came within about 100 feet of the speeder, when the headlight disclosed its presence to him, and that, when he heard the blasts of the whistle and saw the sparks from the application of the brakes, the locomotive was less than 50 feet from the speeder. It is thought that the testimony of the engineer that the illumination of the headlight was so deficient that he could not ascertain what the object ahead of him on the track was until he was within 300 feet thereof, corroborated by the fact that the rays of light were not sufficient to arouse the attention of Rambo to the presence of the locomotive, and the testimony of the lad, who witnessed the accident standing a few rods from the track, that he, although knowing that both train and speeder were approaching, could not see the speeder until the headlight was within 100 feet thereof, justify the jury in finding that the headlight did not comply with the requirements of the Federal’Boiler Inspection Act.” This apprizement of the evidence, we think, is not well founded. Properly interpreted, the record fails to establish that the headlight fell below the prescribed standard. The argument for respondent dwells too hard on conjecture. Atchison, T. & S. F. Ry. Co. v. Saxon, supra, 460. CHICAGO G. W. R. CO. v. RAMBO. 103 99 Opinion of the Court. The most important bit of evidence was given by the engineer, called as a witness for respondent. In substance it follows. “I saw something down on the track, at first when I noticed it, I thought it was a dog or two running down the track, when I got a little closer, I discovered it was a speeder, and I pulled the whistle. I gave a number of short blasts and the man on the speeder never turned or looked.” “It [the object] might have been eight or nine [railroad] car lengths, eight, probably seven.” A car length is around fifty feet. “I was watching ahead to see what it was, and I discovered it was a speeder.” I discovered it was a speeder about five or six car lengths ahead. Immediately, “I put the brake in the emergency.” I was looking ahead at all times after I rounded the curve until I hit the speeder traveling in the same direction. While I observed him, the man on the speeder “did not turn at all.” Treating the foregoing as a positive statement of observed facts, counsel argue that the headlight must have failed to illumine the track 800 feet ahead; otherwise, it is said the engineer would have seen the speeder at that distance and applied the brakes earlier. Also that, if warned by the light when 800 feet away, the decedent would have made visible effort to leave the speeder and thus escape. The presence of conjecture is plain enough. Simply because the engineer failed to see some object 800 feet ahead, does not show that he could not have seen so far; his attention might have been directed to points nearer to him or momentarily diverted. How far ahead he was looking does not appear. Nor can it be said that, since the deceased was not seen to change position on the speeder, he received no warning. Further, the engineer’s statements must be considered in connection with the circumstances attending the accident and other portions of his testimony. The train was 104 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. moving 88 feet per second in the dark and under clouds. In a writing signed two days after the accident, he affirmed, “I first saw some object on the track in the glare of the headlight when the engine was 10 to 12 coach lengths away. It may have been a little less than 1,000 feet or could have been a little more. I saw no light on the object and when first seen it appeared to be two dogs running down the track. I pinched up on the brakes making a service application and when the engine was within 6 to 8 coach lengths I could make out for the first time that it was a motor car and a man on it going same way we were. I immediately continued the brake application into emergency, opened the sanders and started sounding a series of short blasts of whistle. I could make out a man on the car with his back to us, his coat collar turned up and looking ahead. I expected every second to see him make some effort to get off the car but so far as I could see he never changed his position until struck.” While on the stand (May, 1934), he said that the emergency brakes were applied “five or six car lengths” from the speeder. “It might have been more, it might have been less, it might have been a little more.” Also that the “seven, eight or nine car lengths” was merely a guess. “It might have been eight, nine, or ten car lengths, it might have been a thousand feet or more, or it might have been a little bit less.” Evidently, his statements were merely guesses; under the circumstances, accurate estimate of distances by him was impossible. The 15 year old lad was in his father’s yard 600 feet from the track, engaged in the exacting business of catching half grown chickens in the dark. In substance, he said:— “I heard a train coming.” Next, “I noticed the train coming down the track.” “Then I heard the speeder.” By the light of the train, I saw the speeder in front. “When the train came closer, he whistled.” When he got UNITED STATES v. IDAHO. 105 99 Syllabus. still closer, a rod away, I saw fire from the brakes. When I heard the speeder and heard the train, I looked away from the track towards some cornstalks to see if there was a chicken there. “When I looked back, then I saw it.” Could not see man on speeder very plain and could not say whether he moved before being hit. Saw train “about a hundred feet or so” before it struck speeder, headlight beaming, man sitting down on speeder. Nothing in all this gives substantial support to the notion that the headlight failed to illuminate the track 800 feet ahead, or was below the required standard. Other portions of the evidence stressed for respondent are no more helpful to her position. The challenged judgment must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed. Mr. Justice Brandeis took no part in the consideration or decision of this cause. UNITED STATES et al. v. IDAHO et al. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF UTAH. No. 420. Argued March. 13, 1936.—Decided April 27, 1936. 1. A decree of the District Court annulled and enjoined the enforcement of an order of the Interstate Commerce Commission authorizing the abandonment of trackage, on the ground that the' trackage in question was a “spur” within par. 22 of the Interstate Commerce Act and that the order therefore was not within the authority of the Commission. Held, that the decree was based on findings amply supported by the evidence. P. 108. 2. Upon the question whether trackage is a “spur,” an order of the Commission adjudging it not so and permitting abandonment is 106 OCTOBER TERM, 1935. Counsel for Parties. 298 U.S. not conclusive, even though based on substantial evidence, but is subject to judicial review. P. 109. 3. Although the better practice in such cases is to introduce all relevant evidence before the Commission, new evidence upon the question whether the trackage is a “spur”—a mixed question of law and fact—may be received by the District Court in a suit to set aside the order permitting abandonment. P. 109. 4. In a suit to set aside for error or irregularity an order of the Interstate Commerce Commission on a matter within its jurisdiction, the United States is the only party named as defendant; others become parties by intervention. P. 109. 5. A suit against the United States, the Interstate Commerce Commission and a railroad company to enjoin the abandonment of trackage under an order allowing it made by the Commission in excess of its jurisdiction, and also to annul the order,—held properly brought in the three-judge District Court, and the decree appealable to this Court directly. P. 109. 10 F. Supp, 712, affirmed. Appeal from a decree of the District Court of three judges setting aside and enjoining action under a certificate of the Interstate Commerce Commission purporting to permit a railroad company to abandon certain trackage. The suit was brought against the United States, the Commission and the railroad company, as defendants. Mr. Daniel W. Knowlton, with whom Solicitor General Reed, Assistant Attorney General Dickinson, and Messrs. Elmer B. Collins and Edward M. Reidy were on the brief, for the United States and Interstate Commerce Commission, appellants. Messrs. J. M. Souby, George H. Smith, Robert B. Porter, and W. Hal Farr filed a brief on behalf of the Oregon Short Line R. Co., appellant. Mr. Maurice H. Greene, with whom Mr. Bert H. Miller, Attorney General of Idaho, was on the brief, for appellees. UNITED STATES v. IDAHO. 107 105 Opinion of the Court. Mr. Justice Brandeis delivered the opinion of the Court. The Interstate Commerce Act provides in Paragraph 18 of Section 1 that no interstate carrier “shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the [Interstate Commerce] Commission a certificate that the present or future public convenience and necessity permit of such abandonment.” Paragraph 22 provides that the “authority of the Commission” conferred by Paragraph 18 shall not extend to the “abandonment of spur, industrial, team, switching or side tracks, located . . . wholly within one State.” Transportation Act, 1920, c. 91, § 402, 41 Stat. 456, 477-478. Compare Texas & Pacific Ry. v. Gulf, C. & S. F. Ry., 270 U. S. 266; Alabama & Vicksburg Ry. v. Jackson & Eastern Ry., 271 U. S. 244; Texas & New Orleans R. Co. v. Northside Belt Ry., 276 U. S. 475. The Oregon Short Line Railroad, an interstate carrier, owns nine miles of track, in Teton County, Idaho, known as the Talbot branch and extending to a coal mine at Talbot. It applied to the Interstate Commerce Commission for authority to abandon that trackage. The State intervened through its Attorney General and Public Utilities Commission. They objected, among other things, on the ground that the Interstate Commerce Commission was without jurisdiction, since the so-called Talbot branch was in fact a “spur” or “industrial track” located wholly within the State. The objection was overruled ; and authority to abandon the trackage was granted by Division 4. Oregon Short Line Railroad Company Abandonment, 193 I. C. C. 697. The State and its Public Utilities Commission then brought this suit in the federal court for Utah against the 108 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. United States, the Interstate Commerce Commission, and the Oregon Short Line, a Utah corporation, praying that the order authorizing abandonment be set aside and other relief. The case was heard before three judges. The sole controversy was whether the trackage was a “spur” or “industrial track”; and, therefore, excluded from the jurisdiction of the Interstate Commerce Commission. The record made before the Commission was introduced in evidence; also some testimony “which merely amplified evidence already in the record.” The court found, among other things: (1) The trackage was constructed during the period of federal control by the United States Railroad Administration, pursuant to a contract with the owners of coal mines situated at Talbot, for the single purpose of serving them. The owners agreed to furnish the right of way and to pay part of the cost of construction; and they agreed also that the railroad might tear up the tracks on their failure to supply for transportation a minimum specified tonnage. For a period of four years after construction no rail transportation was maintained, because of litigation involving the mines. (2) In 1924, on application of the coal company, the Public Utilities Commission of Idaho, over objection of the Oregon Short Line that it lacked jurisdiction, held that the line was a spur track. It ordered the railroad to repair and operate it upon receiving from the coal company a bond conditioned upon the company delivering a specified minimum coal tonnage each year for five years. The railroad complied with the order.. Subsequently, it procured a judgment on the bond for breach of the condition. (3) The Oregon Short Line has never maintained a train schedule or regular service over this trackage; has never furnished express, passenger or mail service; has maintained no buildings, loading platforms or agent at UNITED STATES v. IDAHO. 109 105 Opinion of the Court. any point along the trackage; and has had no telegraph or telephone line in connection therewith. Bills of lading for cars of coal are made out by the mine company. There are practically no shipments in the opposite direction, the few supplies for the mine being sent up in the empty coal cars when ordered. The District Court concluded that the Talbot branch was constructed and has been maintained for the purpose of serving a single industry; that practically no other industry is served; that this trackage does not invade new territory; that its continued operation or abandonment is of local and not of national concern; that it is therefore a “spur”; and hence, that the order of the Interstate Commerce Commission was in excess of its jurisdiction. The court annulled the order and enjoined its enforcement. 10 F. Supp. 712. The decree should be affirmed, because on findings amply supported by the evidence the trackage is a spur. Appellants object that, since the findings and order of the Interstate Commerce Commission were made on substantial evidence, they are conclusive, and that it was error to admit the testimony first offered in the District Court. Compare Tagg Bros. & Moorhead v. United States, 280 U. S. 420, 444. Although it would have been better practice to have introduced all relevant evidence before the Commission, as appellee’s counsel concede, the court did not err in admitting the additional testimony. For whether certain trackage is a “spur” is a mixed question of fact and law left by Congress to the decision of a court—not to the final determination of either the federal or a state commission. This suit is not one brought to set aside for error or irregularity an order of the Commission on a matter within its jurisdiction. In such a proceeding the United States is the only party named as defendant; others interested become parties by intervention. See Commerce 110 OCTOBER TERM, 1935. Syllabus. 298 U.S. Court Act, June 18, 1910, c. 309, § 3, 36 Stat. 539, 542, Urgent Deficiencies Act, October 22, 1913, c. 32, 38 Stat. 208, 219. Here, the jurisdiction of that Commission was challenged. It and the Oregon Short Line were joined as defendants in the original bill. Paragraph 20 of Section 1 of the Interstate Commerce Act authorizes any party in interest to apply to “any court of competent jurisdiction” to enjoin an unauthorized abandonment; and if, on such application, Talbot branch should be held to be a spur, it could not be abandoned legally without the consent of the Public Utilities Commission of Idaho. It is only because the plaintiffs sought also to have the order of the Interstate Commerce Commission annulled (compare Texas & Pacific Ry. v. Gulf, C. & S. F. Ry., 270 U. S. 266, 271-274) that the case was one for three judges and could be brought here by direct appeal under the Act of October 22, 1913, c. 32, 38 Stat. 208, 220. Affirmed. THE ARIZONA et al. v. ANELICH, ADMINISTRATRIX. CERTIORARI TO THE SUPREME COURT OF WASHINGTON. No. 667. Argued April 1, 2, 1936.—Decided April 27, 1936. 1. The provisions of the Jones Act allowing seamen a common-law form of remedy for injuries in which “all statutes of the United States modifying or extending the common law right or remedy in case of personal injury to railway employees shall apply,” and granting like remedies to the personal representatives of seamen when injuries result in death, became integral parts of the maritime law and are to be construed liberally and in harmony with the principles of that law as they were before the enactment. P. 118. 2. Under the maritime law, prior to the Jones Act, a seaman injured in the course of duty on navigable waters, due to negligence in providing a defective appliance for use in his work on the ship, THE ARIZONA v. ANELICH. Ill 110 Argument for Petitioners. had a cause of action for indemnity against the ship or owner, to which assumption of risk was not a defense. P. 120. 3. Construing the Jones Act in harmony with this principle, assumption of risk is not a defense to an action brought under that Act for the death of a seaman caused by the negligence of the master in providing a defective appliance. From the failure of the Employers’ Liability Act to abolish this defense in cases of injury or death of railway employees not caused by violations of the Safety Appliance Act there cannot be inferred an intention in the Jones Act to introduce the defense into the maritime law. P. 123. 183 Wash. 467; 49 P. (2d) 3, affirmed. Certiorari, 297 U. S. 701, to review the affirmance of a judgment recovered by the administratrix of the estate of a deceased seaman in an action for wrongful death attributed to a defective appliance for stopping a winch used for hauling in fish nets aboard ship. Mr. Ralph 8. Pierce for petitioners. In The Osceola, 189 U. S. 158, were stated certain propositions of maritime law which could be regarded as settled, but the Court did not undertake to state all the principles of maritime law governing personal injuries to seamen. Contributory negligence has always been regarded in admiralty as a defense, in part at least, The Max Morris, 137 U. S. 1, yet there is no mention of it in The Osceola. Assumption of risk is regarded as peculiarly applicable to seamen in The Iroquois, 194 U. S. 240, and there is likewise no mention of it in The Osceola. The language used in The Osceola is clear cut and definite and should not be construed as an attempt to cover the whole field of maritime torts in four short propositions. Moreover, as pointed out in Lindgren v. United States, 281 U. S. 38, this is a situation in which The Osceola is not applicable. That decision was dealing solely with the rights of an injured seaman; and by the-admiralty law his personal representatives, upon his death, had no cause of 112 OCTOBER TERM, 1935. Argument for Petitioners. 298 U.S. action against the master of the vessel. The cause of action which the seaman had, based upon unseaworthiness, died with him. By the Jones Act, Anelich’s personal representatives, he having died as the result of his personal injuries, may maintain an action for damages at law with a trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees are applicable. The right of action thus asserted is identical, conferred by the same section of the Act of Congress, with that which a railway employee’s personal representative might assert; it is for alleged negligence on the part of the employer contributing proximately to the employee’s injury. Petitioners cannot see any basis for a distinction between the rights of the personal representatives of a railway employee and of a seaman. The former is given a right of action, which he may exercise under certain conditions; the latter, once utterly without remedy, is given the same right as the former, by virtue of the same statute, which he may exercise under the same conditions. Respondent’s right here differs in no degree from what Anelich’s would have been had he lived. The Jones Act gave to his personal representative the identical right possessed by representatives of a railway employee; and it is our position that it also gave to the seaman himself the same rights, to be exercised to the same extent, as a railway employee’s. Assumption of risk, a common law defense to an action at law for negligence, is available to the employer of railway employees; and it is equally available to the employers of seamen when an action at law is brought for damages, for negligence, under the Jones Act. THE ARIZONA v. ANELICH. 113 110 Argument for Petitioners. The pronouncements of this Court regarding the Jones Act indicate that this is the proper interpretation of the enactment. Panama R. Co. v. Johnson, 264 U. S. 375. Respondent’s action is based upon negligence, a common law concept, a common law breach of duty, brought into the maritime law. Engel v. Davenport, 271 U. S. 33. If the seaman must assume the burden of proving negligence and subjects himself under § 53 to the defense of contributory negligence, there seems no logical reason why, under § 54, he does not assume the risk, a common law defense to the common law right he seeks to assert. Pacific S. S. Co. v. Peterson, 278 U. S. 130, 138. Warner v. Goltra, 293 U. S. 155, indicates nothing to the contrary. The continued use by certain courts of the term “unseaworthiness” in decisions of cases arising under the Jones Act seems inexplicable; negligence is the only proper term, and unless the seaman is invoking, as he might, the relief accorded to him by the old maritime rules, unseaworthiness is not a true part of the picture. We find, however, certain courts, particularly the Second Circuit, stating, in actions brought under the Jones Act, that as to any unseaworthiness or defective conditions of the vessel or equipment, there can be no defense of assumption of risk. Grimberg v. Admiral Oriental S. S. Line, 300 Fed. 619; Ives v. United States, 58 F. (2d) 201. The majority of the courts, when confronted with cases under the Jones Act, properly have treated the question of assumption of risk as though common law negligence and its defense, as modified by the Federal Employers’ Act, were alone involved. In re Luckenbach S. S. Co., 16 F. (2d) 168, 171; Peterson v. Sanford Tug Co., 28 F. (2d) 283; The Ipswich, 46 F. (2d) 136; McCahan Sugar Co. v. Stoffel, 41 F. (2d) 651; Cronec v. Ohio R. Co., 48 65773°—36------8 114 OCTOBER TERM, 1935. Argument for Petitioners. 298 U.S. F. (2d) 497; The Calvert, 51 F. (2d) 494; The Zealand, 49 F. (2d) 781; Stevens v. O'Brien & Co., 62 F. (2d) 633; The Cricket, 71 F. (2d) 261; Maloney v. United States, 7 F. Supp. 14; Southern Ry. Co. v. Hermans, 44 F. (2d) 366. State courts have likewise applied the common-law rule of assumption of risk to actions involving maritime torts. The State of Washington, prior to the latest decision in this case, had in many cases permitted to the employer of seamen or of other maritime workers the defense of assumption of risk, both before and after the passing of the Jones Act. Assumption of risk is and . always has been a maritime defense. The Iroquois, 194 U. S. 240; The Cricket, 71 F. (2d) 261; Maloney v. United States, 7 F. Supp. 14. Nor is this confined merely to risks of heavy seas or of falling from aloft, but has been applied in many cases prior to the Jones Act which involved unseaworthy condition of ships or appliances. The Maharajah, 40 Fed. 784; The Serapis, 51 Fed. 91; The Luckenbach, 53 Fed. 662; The Saratoga, 94 Fed. 221; Jeffries v. DeHart, 102 Fed. 765; The Scandinavia, 156 Fed. 403; Globe S. S. Co. v. Moss, 245 Fed. 54; Cunard S. S. Co. v. Smith, 255 Fed. 846, 849. Petitioners concede that when a seaman is ordered by his superior officer to use defective equipment, and that order is the impelling force causing such use, there is no assumption of the risk of danger from such use. With but few exceptions, all of the decisions of the Circuit and District Courts, and without exception all of the decisions of this Court, indicate that the defense of assumption of risk and the other common law defenses are equally a part of the maritime law except in so far as the exigencies of maritime life require an alteration; and so far as assumption of risk is concerned, the only alteration 110 THE ARIZONA v. ANELICH. Opinion of the Court. 115 required is that made necessary by the stern duty of obedience upon the part of a seaman to orders from his superior officers. When that factor is removed, so far as assumption of risk is concerned there is no distinction between maritime and common, law assumption of risk; and the last cited cases from the Second Circuit illustrate that where the reason for the distinction fails, the distinction also fails. Mr. Wilbur Zundel, with whom Mr. Samuel B. Bassett was on the brief, for respondent. Mr. Justice Stone delivered the opinion of the Court. In this case certiorari was granted because of the importance of the question, to review a determination of the Supreme Court of the State of Washington, 183 Wash. 467; 49 P. (2d) 3, that assumption of risk is not a defense to an action brought under the Jones Act, 41 Stat. 1007, 46 U. S. C. § 688, to recover damages for the injury and death of a seaman caused by a defective appliance, a part of the equipment of a fishing vessel on which he was employed. The injury occurred at sea, when respondent’s intestate was engaged in hauling in, with a power winch, the purse line of a fishing net. During this operation the drums of the winch, as was customary, were kept in continuous revolution at a speed of about eighty revolutions per minute. The two ends of the purse line, whose function is to purse, or close, the net at the bottom, were reeved through blocks hanging from a davit at the side of the vessel, from which they ran respectively to the aft and forward drums of the winch. Decedent was stationed at the aft drum, where his duty, like that of the winchman at the forward drum, was to take several turns of his end of the purse line about the revolving drum and 116 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. hold the line taut, so that the winch would haul it in, and to coil the line as it came off the drum. When the rings at the bottom of the net through which the purse line passes came to the surface of the water, a bridle, or strap, was passed around the net and rings and attached to block and tackle suspended from a boom of the vessel. The purse line is then customarily thrown off the drums, and the net is raised higher by taking several turns about the forward drum with the line from the block and tackle, which then carries a load of about a ton and a half, and hauling on it. It was at this stage of the operation that decedent was injured. The purse line had been removed from the forward drum, and several turns of the line from the block and tackle, which was supporting the net, had been taken around this drum, when, in some way which does not clearly appear, the decedent’s leg became entangled in the purse line, which was not clear of the aft drum. Before the winch could be stopped his leg was drawn onto the drum by the purse line, the bones were broken and the flesh lacerated. Septicemia ensued, from which he died. Power was transmitted to the winch by a countershaft connected by a chain gear drive with the main, or propeller, shaft. There were two methods for starting and stopping the winch. One was by the operation of a lever located between decks, near the engine, which controlled the clutch on the main shaft. The other was by a lever located above deck, on the starboard side of the winch frame, between the drums, by which the jaws of the clutch connecting with the chain drive of the winch could be engaged with the corresponding jaws of the clutch keyed onto the main shaft. Attached to the winch frame by a string was a forked piece of wood designed for use as a brace to hold the winch lever in a position which would cause the clutch to engage, and prevent its slipping 110 THE ARIZONA v. ANELICH. Opinion of the Court. 117 or disengaging while the winch was in motion. When placed in position this brace extended from a cleat on the frame of the winch to the winch lever. It is respondent’s contention that the clutch was so defective, through long wear, that it would not remain engaged without the use of the brace to hold it in position; that the presence of the brace in position at the moment of the accident so prevented or delayed use of the lever at the winch that it was necessary to use the lever below deck to disengage the clutch on the main shaft in order to stop the winch; and that the consequent delay, after the alarm was given, was the proximate cause of decedent’s injury. The trial court refused petitioners’ request to charge that voluntary assumption by decedent of the risk of injury by the unsafe appliance was a defense to the action, and denied their motion for a non-suit and for a directed verdict. It left it to the jury to say whether petitioners had negligently failed to provide decedent with a safe appliance with which to work, and whether such failure was the proximate cause of the injury and death. The state Supreme Court sustained the judgment of the trial court upon a verdict for respondent, holding that, in the circumstances disclosed by the evidence, assumption of risk is not a defense in a suit under the Jones Act. We granted certiorari to review the ruling .upon the assumption of risk, and not for the purpose of reexamining the evidence of negligence and proximate cause. With respect to the latter, it suffices to say that, although the testimony was conflicting, there was evidence from which the jury could have found that the clutch controlled by the lever at the winch was negligently allowed to remain in a defective condition; that because of the defect it would not remain engaged and the winch drums would not turn continuously unless the lever controlling the clutch was 118 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. held in position by the brace; that the use of the brace to prevent the worn clutch from slipping or disengaging rendered the winch defective, and unsafe to those required to work in its vicinity, and that the use of the brace, and the consequent delay in stopping the winch from the engine room, when the alarm was given, was the proximate cause of the injury and death. We do not discuss other questions of lesser moment, including those growing out of the alleged negligent failure of petitioners to provide decedent with prompt and appropriate medical attention as a contributing cause of his death, but direct our attention to the question brought here for review, whether assumption of risk is a defense to suits under the Jones Act. Since the maritime law allowed no recovery for the wrongful death of a seaman, see Lindgren y. United States, 281 U. S. 38, respondent’s asserted right of action is conferred by § 33 of the Jones Act, 41 Stat. 1007, 46 U. S. C. § 688, which gives to a seaman injured in the course of his employment, at his election, a right of action for damages at law, with trial by jury, in which “all statutes of the United States modifying or extending the common law right or remedy in case of personal injury to railway employees shall apply.” In case of the death of the seaman, as a result of the injury, it similarly gives a right of action to his personal representatives in which “all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable.” Section 1 of the Federal Employers’ Liability Act, 35 Stat. 65, 45 U. S. C. § 51, thus incorporated in the Jones Act by reference, gives a right of recovery for the injury or death of an employee of a common carrier by rail, in interstate or foreign commerce, “resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or 110 THE ARIZONA v. ANELICH. Opinion of the Court. 119 insufficiency, due to its negligence, in its . . . appliances, machinery ... or other equipment.” By § 3 of the Act, 45 U. S. C. § 53, contributory negligence does not bar recovery, but is ground for apportionment of the damages between employer and employee, and by §§ 3 and 4, 45 U. S. C. §§ 53, 54, it is provided that no employee shall be held to have been guilty of contributory negligence or “to have assumed the risk of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.” The Jones Act thus brings into the maritime law new rules of liability. The source from which these rules are drawn defines them but prescribes nothing as to their operation in the field to which they are transferred. “In that field their strength and operation come altogether from their inclusion in the maritime law” by virtue of the Jones Act. The election for which it provides “is between the alternatives accorded by the maritime law as modified and not between that law and some non-maritime system,” Panama Railroad Co. v. Johnson, 264 U. S. 375, 388, 389; and see Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 380, 381; Pacific S. S. Co. v. Peterson, 278 U. S. 130. In applying the Federal Employers’ Liability Act, in suits brought by railroad employees, it has been settled by numerous decisions of this court that assumption of risk is a defense in a suit brought to recover for injuries resulting from defective appliances, the use of which is not required by the Federal Safety Appliance Act, see Seaboard Air Line Ry. Co. v. Horton, 233 U. S. 492; Jacobs v. Southern Ry. Co., 241 U. S. 229; Boldt v. Pennsylvania R. Coi., 245 U. S. 441, 445. The fact that the statute deals with and extends a common law form of liability, provides for its enforcement in common law courts, and prescribes that certain common law defenses, including assumption 120 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. of risk, shall not be available in specified cases, led to the conclusion that such defenses, when not excluded by the terms of the statute, are impliedly authorized. But the Jones Act does not, by its own terms, or by those adopted by reference from the Employers’ Liability Act, prescribe that assumption of risk shall be a defense to the liability imposed for injuries to seamen on navigable waters, or, apart from the specific references to the fellow servant and contributory negligence rules, purport to enlarge or modify the defenses available in maritime law to suits brought to recover for such injuries. In the absence of such a definite command the scope of the new rules of liability and the nature of the defenses to them must be ascertained by reference to their new setting in the admiralty system. While the martime law before the enactment of the Jones Act permitted no recovery for injuries resulting in the death of a seaman, or generally for injuries resulting from the negligence of a fellow servant or the master,1 a seaman who fell sick or was injured in the course of his employment was entitled to “maintenance and cure,” “at least as long as the voyage continued,” see Pacific Steamship Co. v. Peterson, supra, and to recover from vessel or owner indemnity for injuries due to unseaworthiness of the vessel or “failure to supply and to keep in order the proper appliances appurtenant to the ship.” These propositions were laid down in answering certified questions in The Osceola, 189 U. S. 158, 175, and they have often been cited with approval by this Court. See Chelentis v. Luckenbach S. S. Co., supra, 379, 1 In The Osceola, 189 U. S. 158, the Court did not answer the certified question, whether the master is a fellow servant, since it concluded that in any event the owners were not liable generally for injuries resulting from negligence unless they were occasioned by unseaworthiness or defect in appliances appurtenant to the ship. THE ARIZONA v. ANELICH. 121 110 Opinion of the Court. 380; Carlisle Packing Co. v. Sandanger, 259 U. S. 255; Pacific Steamship Co. n. Peterson, supra, 134; Lindgren v. United States, supra. In declaring, in The Osceola, without qualification as to the assumption of risk, that the owner and vessel were liable to indemnify seamen for injuries caused by unseaworthiness of the vessel, and that unseaworthiness embraced defective appliances appurtenant to the ship, this Court adopted the pronouncements of many earlier cases in admiralty in which the rule was applied or recognized.2 It was definitely applied by this Court in Carlisle Packing Co. v. Sandanger, supra; cf. Plamdls v. $. & Pinar del Rio, 277 U. S. 151, 155. 2 The seaman’s right of indemnity for injuries caused by defective appliances or unseaworthiness seems to have been a development from his privilege to abandon a vessel improperly fitted out. The privilege was recognized in Dixon v. The Cyrus, 2 Pet. Adm. 407 (D. C. Pa. 1789), where it was held that the law will imply an engagement to the mariners that “the ship shall be furnished with all the necessary and customary requisites for navigation, or, as the term is, shall be found seaworthy.” This case was relied on in several early cases recognizing the seaman’s right to consequential damages for injuries resulting from faulty equipment. Halverson n. Nisen, 3 Saw. 562; The Noddlebum, 28 Fed. 855; The Lizzie Frank, 31 Fed. 477; and see The Wenonah, 1 Hask. 606. The rule that unseaworthiness releases the seaman from his contract is of uncertain origin, but it is closely related to the master’s obligation to owner and shipper that the vessel be well equipped and ballasted. See Marine Ordinances of Louis XIV, Book II, Art. VIII, Moloy, De Jure Maritimo et Navali, (7th ed. 1722) p. 223. The seaman’s right of indemnity was sustained in The City of Alexandria, 17 Fed. 390; The Edith Godden, 23 Fed. 43; Olson v. Flavel, 34 Fed. 477; The A. Heaton, 43 Fed. 592; The Frank and Willie, 45 Fed. 494; The Julia Fowler, 49 Fed. 277. A seaman was denied recovery for injuries in Couch v. Steele, 3 El. & Bl. 402 (1853), on the ground that the owner owed to seamen no duty to make the vessel seaworthy. This case was disapproved in The Noddleburn, supra, 857, which allowed recovery for an injury due to defective rigging. The Mer- 122 OCTOBER TERM, 1935. Opinion, of the Court. 298 U.S. Before the Jones Act contributory negligence was ground for mitigation of damages in suits brought by seamen to recover for injuries attributable to defective equipment, see The Wanderer, 20 Fed. 140; Olson v. Flavel, 34 Fed. 477, overruling Peterson v. The Chandos, 4 Fed. 645; The Frank and Willie, 45 Fed. 494; The Julia Fowler, 49 Fed. 277; John A. Roebling’s Sons Co. v. Erickson, 261 Fed. 986, 987; Cricket S. S. Co. v. Parry, 263 Fed. 523; Storgard v. France & Canada S. S. Corp., 263 Fed. 545; Panama R. Co. v. Johnson, 289 Fed. 964, aff’d 264 U. S. 375. But no American case appears to have recognized assumption of risk as a defense to such a suit. In numerous cases this defense was either denied or ignored in circumstances plainly calling for its application had it been available. Halverson v. Nisen, 3 Saw. 562; The Edith Godden, 23 Fed. 43; The Julia Fowler, supra; The Noddleburn, 28 Fed. 855; Olson v. Flavel, supra; The A. Heaton, 43 Fed. 592; Lafourche Packet Co. v. Henderson, 94 Fed. 871; Globe S. S. Co. v. Moss, 245 Fed. 54; The Colusa, 248 Fed. 21; Cricket S. S.Co. v. Parry, supra. The seaman assumes the risk normally incident to his perilous calling, see The Iroquois, 194 U. S. 240, 243; Cricket S. S. Co. v. Parry, supra, but it has often been pointed out that the nature of his calling, the rigid discipline to which he is subject, and the practical difficulties of his avoiding exposure to risks of unseaworthiness and chant Shipping Act of 1876, 39-40 Viet. Ch. 80, § 5, provided that there should be imported into every contract of service between the owner of the vessel and the seamen on board an implied obligation “that the owner of the ship and the master, and every agent charged with the loading of the ship or the preparing thereof for sea or the sending thereof to sea shall use all reasonable means to insure the seaworthiness of the ship for the voyage at the time when the voyage commences and to keep her in a seaworthy condition for the voyage during the same.” See Hedley v. Pinkney & Sons S. S. Co., [1894] A. C. 222, strictly construing this statute. 110 THE ARIZONA v. ANELICH. Opinion of the Court. 123 defective appliances, make such a defense, as distinguished from contributory negligence, see Seaboard Air Line Co. v. Horton, supra, 503, peculiarly inapplicable to suits by seamen to recover for the negligent failure to provide a seaworthy ship and safe appliances. See The Colusa, supra, 24, 25; Cricket S. S. Co. v. Parry, supra, 526; Grimberg v. Admiral Oriental S. S. Line, 300 Fed. 619, 621; U. S. Shipping Board E. F. Corp. v. O’Shea, 55 App. D. C. 300; 5 F. (2d) 123,125; States S. S. Co. v. Berglann, 41 F. (2d) 456, 457. Like considerations, and others to be mentioned, require a like conclusion with respect to the modified and in some respects enlarged liability imported into the maritime law by the Jones Act. The legislation was remedial, for the benefit and protection of seamen who are peculiarly the wards of admiralty. Its purpose was to enlarge that protection, not to narrow it. Of. Chelentis v. Luck-enbach S. S. Co., supra. Its provisions, like others of the Merchant Marine Act, of which it is a part, are to be liberally construed to attain that end, see Cortes v. Baltimore Insular Line, 287 U. S. 367, 375; Jamison v. Encarnacion, 281 U. S. 635, 639; Alpha S. S. Corp. v. Cain, 281 U. S. 642; Warner v. Goltra, 293 U. S. 155, 157, 160, and are to be interpreted in harmony with the established doctrine of maritime law of which it is an integral part. The denial in the Federal Employers’ Liability Act of the defense of assumption of risk refers only to suits founded on the Federal Safety Appliance Act, applicable alone to railroads. It can raise no inference as to the availability of the defense in suits brought to recover for injuries to seamen. No provision of the Jones Act is inconsistent with the admiralty rule as to assumption of risk. The purpose and terms of the Act and the nature of the juristic field in which it is to be applied, preclude the assumption that Congress intended, by its adoption, to modify that rule by implication. Such has been the conclusion 124 OCTOBER TERM, 1935. Syllabus. 298 U.S. reached generally by the lower federal courts, although not with entire unanimity.3 Affirmed. BEADLE v. SPENCER. CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. No. 676. Argued March 31, 1936.—Decided April 27, 1936. 1. The provisions of the Employers’ Liability Act specifically imposing liability for injuries caused by negligence of officers and fellow employees, or by defects in equipment due to negligence, were adopted for the maritime law by the Jones Act, 46 U. S. C. 388. P. 128. 2. Assumption of risk is not a defense to a suit brought under the Jones Act by one who is a seaman according to the maritime law, for personal injuries resulting from negligent failure of the master to provide safe appliances or a safe place in which to work. The Arizona, ante, p. 110, followed. P. 129. 3. This rule applies although the injured seaman was employed on a coasting vessel which was in port at the time of his accident. P. 129. 4. It is unnecessary to decide in this case whether employees on a vessel who are not seamen according to the maritime law, but who have been given the status of seamen for the purpose of enabling them to bring suit under the Jones Act, see International Stevedoring Co. v. Haverty, 272 U. S. 50, are entitled to the immunity from the defense of assumption of risk accorded by the maritime law to seamen. P. 130. 8Denying the defense: Grimberg v. Admiral Oriental S. S. Line, 300 Fed. 619; U. S. Shipping Board E. F. Corp. v. O’Shea, 55 App. D. C. 300; 5 F. (2d) 123; Coast S. S. Co. v. Brady, 8 F. (2d) 16; Zinnel v. U. S. Shipping Board E. F. Corp., 10 F. (2d) 47; Howarth v. U. S. Shipping Board E. F. Corp., 24 F. (2d) 374; Masjvlis v. U. S. Shipping Board E. F. Corp., 31 F. (2d) 284; States S. S. Co. v. Berglann, 41 F. (2d) 456; United States v. Boykin, 49 F. (2d) 762; Ives v. United States, 58 F. (2d) 201; Pittsburgh S. S. Co. v. Palo, 64 F. (2d) 198; Hanson v. Luckenbach S. S. Co., 65 F. (2d) 457; The New Berne, 80 F. (2d) 244. Contra: The Ipswich, 46 F. (2d) 136; Stevens v. R. O’Brien & Co., 62 F. (2d) 632, 124 BEADLE v. SPENCER. Argument for Petitioner. 125 5. Contributory negligence is not a defense to a suit brought either under the Jones Act or under the maritime law for injuries attributable to negligently defective equipment. It is ground only for apportionment of the damages. P. 130. 4 Cal. (2d) 313; 48 P. (2d) 678, affirmed. Certiorari, 297 U. S. 701, to review the affirmance of a judgment for damages in an action by a seaman who was injured by falling into a hatch. Mr. Harold M. Sawyer for petitioner. Upon the authority of Pryor v. Williams, 245 U. S. 43; Southern Ry. Co. v. Hermans, 44 F. (2d) 366; and Holy Cross Gold Mining Co. v. O’Sullivan, 27 Colo. 237, the District Court of Appeal held that in* the instant case, under the pleadings and the evidence, the jury should have been instructed with regard to the defense of assumption of ordinary risks and hazards of the employment and the legal effect thereof, and because of the failure so to instruct, reversed the judgment of the trial court. It has been repeatedly urged throughout this litigation that the above authorities involve injuries sustained in the operation of railroads, and that consequently these authorities furnish no rule whatever for the application of the doctrine of assumption of the risk of the ordinary and obvious hazards in the case of seamen suing under the Jones Act. Long before the Jones Act was passed, this Court said, in the case of The Iroquois, 194 U. S. 240: “A seafaring life is a dangerous one. Accidents of this kind are peculiarly liable to occur and the general principle of law that a person entering a dangerous employment is regarded as assuming the ordinary risks of such employment is peculiarly applicable to the case of seamen.” There can be no doubt that the defense of assumption of the risk in suits brought by seamen prior to the passage of the Jones Act was available to their employers. 126 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. It is true that some of the inferior federal and state courts have held that the entire doctrine of assumption of the risk is not applicable to seamen because of the peculiarities of their occupation which distinguish it from land occupation. The chief distinction between the two occupations is that the seaman at sea is acting under orders, disobedience to which may imperil the safety of vessel, persons on board, and the cargo. But in this case the respondent occupied no such position. He was on a vessel moored at a dock discharging cargo. He was injured early on Monday morning, having been ashore since the preceding Saturday afternoon. He had not signed articles and could have quit his job at any time he liked without penalty or forfeiture. Under these circumstances there is no occasion for relaxing the rule of assumption of the risk because the reason upon which such relaxation is based does not exist. Other courts have found no difficulty in applying the rule of assumption of the risk in cases under the Jones Act where, as here, the seaman was not acting under compulsion. Skolar v. Lehigh Valley Ry. Co., 60 F. (2d) 893; Scheffler v. Moran Towing Co., 1934 A. M. C. 441. It is therefore submitted that when Congress saw fit to enlarge the privileges of seamen by conferring upon them the same rights and remedies as were conferred upon employees in interstate commerce by the Federal Employers’ Liability Act, it fully intended to reserve to the maritime employer the same defense of assumption of risk that had been reserved to the land employer. Mr. John L. McNab submitted for respondent. Mr. Justice Stone delivered the opinion of the Court. In this case certiorari was granted to review a ruling of the Supreme Court of California, 4 Cal. (2d) 313; 48 P. (2d) 678, that assumption of risk is not a defense to a suit 124 BEADLE v. SPENCER. Opinion of the Court. 127 brought by a seaman under the Jones Act, 41 Stat. 1007, 46 U. S. C. § 688, to recover for personal injuries due to the negligent failure of the officers of the vessel to provide him with a safe place in which to work. Respondent was employed by petitioner as a seaman on a coasting vessel. While engaged in unloading lumber from the deck he was injured by a fall into an open hatch. On the trial there was evidence from which the jury could have found that the deck of the vessel, from the bulwarks to within about forty inches of either side of the hatch coamings, was loaded with heavy timbers, and that the remaining deck space, at the sides of the hatch, was loaded with loose lumber, consisting of pieces 2" x 3" and 1" x 12", to a height five or six feet above the deck; that this lighter lumber, or a substantial part of it, had been loaded in sling loads, without re-piling, in such negligent fashion as to render it unstable; that.the pile of lumber, with the open hatch alongside, constituted an unsafe place to work for those required to go upon it, as the master knew; and that the upper part of the pile of lumber, on which respondent was standing in order to adjust a sling about some of the lumber to be unloaded, toppled over because of its instability, throwing him through the open hatch into the hold and causing the injuries complained of. The trial court refused requests to charge that assumption of the risk by respondent was a defense, but left it to the jury to say whether there was negligent failure of the master to provide a safe place for the respondent to work, and whether the failure was the proximate cause of the injury. It reduced the jury’s verdict for respondent and gave judgment accordingly, which the state supreme court sustained. Numerous grounds for reversal are urged here, of which only two require our notice. One is petitioner’s contention that even though assumption of risk is not generally a defense to a suit brought under the Jones Act, it must 128 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. be deemed available where, as in the present case, the injured seaman is employed on a coasting vessel which was in port at the time of the accident. It is argued that as he was not required to sign articles, 18 Stat. 64, 46 U. S. C. § 544, compare 46 U. S. C. § 563, and consequently was not subject to the punishment for desertion prescribed by 46 U. S. C. §§ 701-713, he was free to avoid the risk by leaving the vessel and his employment. The other objection is that the trial court erred in refusing petitioner’s request to charge that if the jury should find that respondent, in placing the sling underneath the lumber, “chose to perform the act in a dangerous manner such as stepping too near the edge of the deck load when there was a safe method of doing the work involving no risk of the edge of the deck load giving away, then the plaintiff cannot recover.” 1. The effect of the Jones Act in bringing into the maritime law new rules of liability prescribed by the Federal Employers’ Liability Act, has been considered in The Arizona, decided this day, ante, p. 110, and does not require extended discussion here. The injury resulting to the employee from the negligently piled lumber, in proximity to the open hatch, is made actionable by the Jones Act, by its adoption for the maritime law of the provisions of the Employers’ Liability Act, which specifically imposes liability for negligence of officers and fellow employees, and for defects in equipment due to negligence. See Zinnel v. U. S. Shipping Board E. F. Corp., 10 F. (2d) 47; The Val-darno, 11 F. (2d) 35; Howarth v. U. S. Shipping Board E. F. Corp., 24 F. (2d) 374; Hanson v. Luckeribach S. S. Co., 65 F. (2d) 457. Before the enactment of the Jones Act it was recognized that a “failure to supply and keep in order the proper appliances appurtenant to the ship” is equivalent to unseaworthiness, and that it was likewise actionable under the maritime law, if it caused injury to a seaman. See The Osceola, 189 U. S. 158, 175. Judge 124 BEADLE v. SPENCER. Opinion of the Court. 129 Addison Brown, sitting in admiralty, had allowed recovery to a seaman for injuries received in unloading lumber in circumstances substantially like the present, in The Frank and Willie, 45 Fed. 494, cited with approval in The Osceola, supra, 174. See also Carlisle Packing Co. n. Sandanger, 259 U. S. 255; Olson v. Flavel, 34 Fed. 477. 2. It is unnecessary to repeat here the reasons given in the opinion in The Arizona, supra, for our conclusion that assumption of risk is not a defense to a suit brought by a seaman under the Jones Act for negligent failure of the master to provide safe appliances or a safe place in which to work. Those reasons neither require nor admit of a different rule because of the circumstances of respondent’s employment on which the petitioner relies. The rules, peculiar to admiralty, of liability for injuries to seamen or others, are as applicable when the injury occurs upon a vessel in port as when at sea, although the common law may apply a different rule to an injury similarly inflicted on the wharf to which the vessel is moored. The Frank and Willie, supra; and see Northern Coal & Dock Co. v. Strand, 278 U. S. 142; Nogueira v. New York, N. H. &, H. R. Co., 281 U. S. 128; Baizley Iron Works v. Span, 281 U. S. 222; Employers’ Liability Assurance Corp. v. Cook, 281 U. S. 233; Uravic n. Jarka Co., 282 U. S. 234. ’ Nor do we perceive any adequate ground for judicial relaxation of the admiralty rule, applicable under the Jones Act, that assumption of risk is not a defense to a suit to recover for injury to a seaman resulting from unseaworthiness or defective equipment, because he chances to be in some measure less amenable to the iron discipline of the sea than others who go upon foreign voyages. Even so his freedom to avoid the risk is far from comparable to that of the employee on land where the defense of assumption of risk originated and has been maintained. 65773°—36-9 130 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. No such distinction appears to have been recognized in the maritime law. And we discern nothing in the purpose or in the language of the Jones Act or in the rules of liability which it prescribes to suggest that Congress undertook to introduce such a distinction into the maritime law. It is unnecessary to decide whether employees on a vessel who are not seamen according to the maritime law, but who have been given the status of seamen for the purpose of enabling them to bring suit under the Jones Act, see International Stevedoring Co. v. Haverty, 272 U. S. 50, are entitled to the immunity from the defense of assumption of risk accorded by the maritime law to seamen. Cf. Scheffler v. Moran Towing & Transportation Co., 68 F. (2d) 11; Skolar v. Lehigh Valley R. Co., 60 F. (2d) 893. 3. We find no prejudicial error in the refusal to give the requested charge as to the respondent’s use of the sling. The trial judge did charge the jury that there could be no recovery unless it found that negligence of petitioner was the cause of the injury. Respondent was using the defectively piled lumber as a platform on which to stand when adjusting the sling under some of the lumber about to be unloaded. There is no suggestion in the evidence or by petitioner’s requests that he could have stood elsewhere when performing that operation, or that he had any choice but to do his work there or leave the vessel. It may be that he was negligent in standing at one point rather than at another upon the unsafe pile of lumber, see Seaboard Air Line Ry. Co. v. Horton, 233 U. S. 492; cf. The Frank and Willie, supra, and that an instruction as to the effect of his negligence would have been appropriate. But we think the charge in the form requested, so far as applicable to the evidence, and in view of that actually given, amounted to INTERNATIONAL MACHINES CORP. v. U. S. 131 124 Syllabus. no more than a request to charge that his negligence was a defense. Contributory negligence is not a defense to a suit brought either under the Jones Act or under the maritime law for injuries attributable to negligently defective equipment. Under both it is ground only for apportionment of the damage, see The Frank and Willie, supra; 35 Stat. 66, 45 U. S. C. § 53. So far as the record discloses petitioner made no request for an instruction as to apportionment of the damage. Affirmed. INTERNATIONAL BUSINESS MACHINES CORP. v. UNITED STATES. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 758. Argued April 8, 1936.—Decided April 27, 1936. Section 3 of the Clayton Act declares it unlawful for any person engaged in commerce to lease machinery “whether patented or unpatented” on the condition that the lessee shall not use supplies or other commodities of the lessor’s competitor, where the effect of the condition “may be” to lessen competition substantially or tend to create a monopoly. Held: 1. The prohibition is violated by a condition requiring a lessee to operate the leased machine only with supplies from the lessor, since this, in effect, precludes the use of supplies of a competitor. P. 134. 2. While the section does not purport to curtail the patent monopoly of the lessor, the prohibition of tying clauses is not limited to unpatented supplies but includes also supplies which have been patented to the lessor either separately or in combination with the patented machine. P. 136. 3. Assuming that, by implied exception, a tying clause would not violate the provision, though it tended to create a monopoly, if its purpose and effect were to protect the good will of the lessor in the leased machines, there is no basis for the exception where the substantial benefit of the clause to the lessor is in the elimina- 132 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. tion of competition and where it does not appear that protection of his good will cannot be achieved by methods that do not tend to monopoly and are not otherwise unlawful. P. 138. 13 F. Supp. 11, affirmed. Appeal from a decree enjoining, as contrary to the Clayton. Act, certain clauses which the appellant had been placing in its leases of tabulating machines, requiring the use of tabulating cards of its own manufacture. Messrs. Martin A. Schenck and Drury W. Cooper, with whom Mr. Edward Cornell was on the brief, for appellant. Assistant Attorney General Dickinson, with whom Solicitor General Reed and Messrs. Charles H. Weston and George P. Alt were on the brief, for the United States. Mr. Justice Stone delivered the opinion of the Court. This is an appeal, § 238 of the Judicial Code, from so much of a decree of a District Court for Southern New York as enjoins the appellant from leasing its tabulating and other machines upon the condition that the lessees shall use with such machines only tabulating cards manufactured by appellant, as a violation of § 3 of the Clayton Act, 38 Stat. 731,15 U. S. C. § 14. The Government brought the suit against appellant and three other corporations, all manufacturers of machines performing substantially the same functions as appellant’s, to restrain the use by each of the defendants of a specified type of lease of their machines as a violation of the Clayton Act, and to declare void under the Sherman Act a contract into which they had entered, by which each agreed to use that type of lease, and not to solicit the lessees of machines of the others to purchase tabulating cards which it manufactures. The case was tried upon the pleadings and a stipulation of facts, in which the defendants consented to a decree cancelling INTERNATIONAL MACHINES CORP. v. U. S. 133 131 Opinion of the Court. their agreement with each other. Two of the defendants have been eliminated from the suit, one by dissolution and the other by merger with appellant. A third defendant, Remington Rand, Inc., has stipulated that the decree to be entered against it shall conform to that entered against appellant upon this appeal. Appellant’s machines and those of Remington Rand, Inc., are now the only ones on the market which perform certain mechanical tabulations and computations, without any intervening manual operation, by the use in them of cards upon which are recorded data which are the subject of tabulation or computation. Appellant manufactures three types of machines, known as punching machines, sorters and tabulators. The punching machines are used to perforate cards, called tabulating cards, in such manner that the positions of the perforations indicate numerical or other data. When the cards are passed through the sorter or tabulator, control of its mechanism is effected by electrical circuits established by contacts through the perforations. The cards are thus made permanent records of information, and by the perforations are given such form that they may be used, as often as required, to control the function of the machines through which they are passed. The sorting machines are used to sort the perforated cards so as to classify them by the selection and segregation, in the desired manner, of those signifying any particular type of information. The tabulating machines are used to record the information de-, noted by the perforated cards or to make computations based upon it. In the Remington Rand machines the control is not electrical, but is accomplished by the use of cards which admit of the movement, into the perforations, of small pins which, by linkage, guide the mechanical operation of the machine so as to effect the desired result. 134 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. To insure satisfactory performance by appellant’s machines it is necessary that the cards used in them conform to precise specifications as to size and thickness, and that they be free from defects due to slime or carbon spots, which cause unintended electrical contacts and consequent inaccurate results. The cards manufactured by appellant are electrically tested for such defects. Appellant leases its machines for a specified rental and period, upon condition that the lease shall terminate in case any cards not manufactured by the lessor are used in the leased machine. A special form of lease has been granted to the Government by which it is permitted to use cards of its own manufacture upon paying a 15% increase in the rental of the leased machines, but upon condition that the lease shall be terminable if the Government uses such cards without payment of the additional rental. Appellant insists that the condition of its leases is not Within the prohibition of the Clayton Act, and it has assigned as error the conclusion of the district court that the condition tends to create monopoly. But its principal contentions are that its leases are lawful because the protection secured by the condition does not extend beyond the monopoly which it has acquired by patents on the cards and on the machines in which they are used, and that in any case the condition is permissible under § 3 of the Clayton Act because its purpose and effect are only to preserve to appellant the good will of its patrons by preventing the use of unsuitable cards which would interfere with the successful performance of its machines. 1. Section 3 of the Clayton Act, so far as it is applicable to the present case, provides that “It shall be unlawful for any person engaged in commerce, in the course of such commerce, to lease . . . machinery . . . whether patented or unpatented, for use . . . within the United States ... on the condition . . . that the lessee . . . INTERNATIONAL MACHINES CORP. v. U. S. 135 131 Opinion of the Court. shall not use . . . supplies or other commodities of a competitor . . . , where the effect of such lease ... or such condition . . . may be to substantially lessen competition or tend to create a monopoly in any line of commerce.” The statute thus in precise terms makes unlawful a condition that the lessee shall not use the supplies, or commodities of a competitor of the lessor if the effect of the condition “may be” to lessen competition substantially, or if it tends to create a monopoly. Little need be said of the contention that the condition of appellant’s leases does not infringe these prohibitions. It is true that the condition is not in so many Words against the use of the cards of a competitor, but is affirmative in form, that the lessee shall use only appellant’s cards in the leased machines. But as the lessee can make no use of the cards except with the leased machines, and the specified use of appellant’s cards precludes the use of the cards of any competitor, the condition operates in the manner forbidden by the statute. See United Shoe Machinery Co. v. United States, 258 U. S. 451, 457, 458; compare Federal Trade Comm’n v. Sinclair Refining Co., 261 U. S. 463, 474. A different question is presented from that in the Sinclair case, where a wholesale distributor of gasoline leased gasoline pumps to retail dealers with the stipulation that they should not be used for the pumping of gasoline of the lessor’s competitors. As the only use made of the gasoline was to sell it, and as there was no restraint upon the purchase and sale of competing gasoline, there was no violation of the Clayton Act. The conclusion of the trial court that appellant’s leases infringe the monopoly provisions of the section does not want for support in the record. The agreed use of the “tying clause” by appellant and its only competitors, and the agreement by each of them to restrict its competition in the sale of cards to the lessees of the others, have oper- 136 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. ated to prevent competition and to create a monopoly in the production and sale of tabulating cards suitable for appellant’s machines, as the district court found. The commerce in tabulating cards is substantial. Appellant makes and sells 3,000,000,000 cards annually, 81% of the total, indicating that the sales by the Remington Rand company, its only competitor, representing the remaining 19%, are approximately 600,000,000. It is stipulated that appellant derives a “substantial” profit from its card sales. The gross receipts from its machines during the past ten years have averaged $9,710,389 a year, and an average of $3,192,700 has been derived annually from the sale of its cards. These facts, and others, which we do not stop to enumerate, can leave no doubt that the effect of the condition in appellant’s leases “may be to substantially lessen competition,” and that it tends to create monopoly, and has in fact been an important and effective step in the creation of monopoly. 2. On the trial appellant offered to prove its ownership of patents which, it asserts, give it a monopoly of the right to manufacture, use and vend the cards, separately, and in combination with its sorting and tabulating machines, of which, it insists, they are a part. It argues that the condition of its leases is lawful because it does not enlarge the monopoly secured by the patents, and that the trial court erred in refusing to consider appellant’s patent monopoly as a defense to the suit. Appellant’s patents appear to extend only to the cards when perforated, and to have no application to those which the lessees purchase before they are punched. The contention is thus reduced to the dubious claim that the sale of the un-punched cards is a contributory infringement of the patents covering the use of perforated cards separately and in combination with the machines. See Carbice Corporation v. American Patents Development Corp., 283 U. S. 27; Motion Picture Patents Co. v. Uni- INTERNATIONAL MACHINES CORP. v. U. S. 137 131 Opinion of the Court. versal Film Mjg. Co., 243 U. S. 502; McGrath Holding Corp. v. Anzell, 58 F. (2d) 205; cf. Leeds & Catlin Co. n. Victor Talking Machine Co., 213 U. S. 325. But we do not place our decision on this narrow ground. We rest it rather on the language of § 3 of the Clayton Act which expressly makes tying clauses unlawful, whether the machine leased is “patented or unpatented.” The section does not- purport to curtail the patent monopoly of the lessor or to restrict its protection by suit for infringement. But it does in terms deny to the lessor of a patented, as well as of an unpatented machine, the benefit of any condition or agreement that the lessee shall not use the supplies of a competitor. The only purpose or effect of the tying clause, so far as it could be effectively applied to patented articles, is either to prevent the use, by a lessee, of the product of a competitor of the lessor, where the lessor’s patent, prima facie, embraces that product, and thus avoid judicial review of the patent, or else to compel its examination in every suit brought to set aside the tying clause, although the suit could usually result in no binding adjudication as to the validity of the patent, since infringement would not be in issue. The phrase “whether patented or unpatented” would seem well chosen to foreclose the possibility of either alternative. When Congress had before it the bill which became § 3 of the Clayton Act, it was familiar with the decision of this Court in Henry v. A. B. Dick Co., 224 U. S. 1, and with the contentions made in United States v. United Shoe Machinery Co., 247 U. S. 33, then pending before this Court—cases in which it was held that a tying clause could lawfully be extended to unpatented supplies for a leased patented machine. Cong. Rec., Vol. 51, Part 14, 63rd Cong., 2d Sess., 14,089 ff.; see Henderson, The Federal Trade Commission, 30. One purpose of § 3 undoubtedly was to prevent such use of the tying clause. United Shoe 138 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. Machinery Co. v. United States, 258 U. S. 451. But the debates on § 3, on the floor of the Senate, disclose that it was well known to that body that one of the contentions in the pending cause, United States v. United Shoe Machinery Co., 247 U. S. 33, was that it was permissible, in any circumstances, for a lessor to tie several patented articles together. They show that the proponents of the bill were as much concerned that that practice should be prohibited as that the tying of non-patented to patented articles should be ended. Cong. Rec., Vol. 51, Part 14, 63rd Cong., 3d Sess., 14275. The phrase, “whether patented or unpatented” as used in § 3 is as applicable to the one’ practice as to the other. It would fail of the purpose which it plainly expresses if it did not operate to preclude the possibility of both, and to make the validity of the tying clause a matter to be determined independently of the protection afforded by any monopoly of the lessor. Such, we think, must be taken to be the effect of the section unless its language and history are to be disregarded. Under its provisions the lawfulness of the tying clause must be ascertained by applying to it the standards prescribed by § 3 as though the leased article and its parts were unpatented. 3. Despite the plain language of § 3, making unlawful the tying clause when it tends to create a monopoly, appellant insists that it does not forbid tying clauses whose purpose and effect are to protect the good will of the lessor in the leased machines, even though monopoly ensues. In support of this contention appellant places great emphasis on the admitted fact that it is essential to the successful performance of the leased machines that the cards used in them conform, with relatively minute tolerances, to specifications as to size, thickness and freedom from defects which would affect adversely the electrical circuits indispensable to the proper INTERNATIONAL MACHINES CORP. v. U. S. 139 131 Opinion of the Court. operation of the machines. The point is stressed that failure, even though occasional, to conform to these requirements, causes inaccuracies in the functioning of the machine, serious in their consequences and difficult to trace to their source, with consequent injury to the reputation of the machines and the good will of the lessors. There is no contention that others than appellant cannot meet these requirements. It affirmatively appears, by stipulation, that others are capable of manufacturing cards suitable for use in appellant’s machines, and that paper required for that purpose may be obtained from the manufacturers who supply appellant. The Remington Rand company manufactures cards suitable for its own machines, but since it has been barred by the agreement with appellant from selling its cards for use in appellant’s machines, its cards are not electrically tested. The Government, under the provisions of its lease, following its own methods, has made large quantities of the cards, which are in successful use with appellant’s machines. The suggestion that without the tying clause an adequate supply of cards would not be forthcoming from competitive sources is not supported by the evidence. “The very existence of such restrictions suggests that in its absence a competing article of equal or better quality would be offered at the same or at a lower price.” Carbice Corporation v. American Patents Development Corp., supra, 32, Note 2, quoting Vaughan, Economics of Our Patent System, 125, 127. Appellant’s sales of cards return a substantial profit and the Government’s payment of 15% increase in rental to secure the privilege of making its own cards is profitable only if it produces the cards at a cost less than 55% of the price charged by appellant. Appellant is not prevented from proclaiming the virtues of its own cards or warning against the danger of using, in its machines, cards which do not conform to the 140 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. necessary specifications, or even from making its leases conditional upon the use of cards which conform to them. For aught that appears such measures would protect its good will, without the creation of monopoly or resort to the suppression of competition. The Clayton Act names no exception to its prohibition of monopolistic tying clauses. Even if we are free to make an exception to its unambiguous command, see United States v. United Shoe Machinery Co., 264 Fed. 138, 167 j1 Auto Acetylene Light Co. v. Prest-O-Lite Co., 276 Fed. 537; Pick Manufacturing Co. v. General Motors Corp., 80 F. (2d) 641; cf. Radio Corporation v. Lord, 28 F. (2d) 257, we can perceive no tenable basis for an exception in favor of a condition whose substantial benefit to the lessor is the elimination of business competition and the creation of monopoly, rather than the protection of its good will, and where it does not appear that the latter can not be achieved by methods which do not tend to monopoly and are not otherwise unlawful. Affirmed. Mr. Justice Roberts took no part in the consideration or decision of this case. 1 In this case the Government sought no review of the determination of the district court that the tying clause was valid so far as it requires lessees to purchase of the lessor supplies and parts of the leased machines. See United Shoe Machinery Co. v. United States, 258 U. S. 451. TIPTON v. ATCHISON RY. CO. Argument for Petitioner. 141 TIPTON v. ATCHISON, TOPEKA & SANTA FE RAILWAY CO. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 664. Argued March 31, 1936.—Decided April 27, 1936. 1. The remedy of an employee of a railway which is a highway of interstate commerce for personal injuries suffered while he is engaged about intrastate transportation, and caused by a breach of the Federal Safety Appliance Acts, is the remedy afforded by the common or statutory law of the State. P. 146. 2. In such cases, the State is at liberty to afford any appropriate remedy for breach of the duty imposed by the federal Acts, including the remedy of workmen’s compensation; and the state law on the subject is binding on the federal courts. P. 147. 3. In California, the exclusive remedy in such cases is under the state workmen’s compensation act. P. 149. 4. A construction of a state statute by the state courts resulting from their erroneous conception of federal statutes, is not binding on the federal courts. P. 151. 78 F. (2d) 450, affirmed. Certiorari, 297 U. S. 700, to review the affirmance of a judgment dismissing an action by a railway employee against the Railway Company to recover damages for personal injuries alleged to have been caused by a defective coupling on a freight car, used in violation of the Federal Safety Appliance Acts. Mr. Herman A. Bachrack submitted for petitioner. It is now beyond dispute that the Safety Appliance Acts apply to cars in use on a highway of interstate commerce regardless of the type of commerce (interstate or intrastate) in which the cars are being used. Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33; Moore v. Chesapeake &, Ohio Ry. Co., 291 U. S. 205; 45 U. S. C. 8. It is also beyond dispute that the duty thus laid upon the railroad gives rise to a correlative right in favor of an 142 OCTOBER TERM, 1935. Argument for Petitioner. 298 U.S. employee proximately injured by reason of a violation of this duty regardless of the type of commerce in which the employee was engaged when injured. Cases supra; Fairport, P. & E. Ry. v. Meredith, 292 U. S. 589; United States v. California, 297 U. S. 175. Since this right is a creation of the federal statute, it must be conceded that, if the remedy is also a creation of the federal statute, no mandatory state Workmen’s Compensation Act can destroy either. Ward v. Erie R. Co., 230 N. Y. 230, cert, den., 256 U. S. 696, and cases cited. Assuming that the remedy afforded for the violation of the duty is not a creation of federal law, but has been left to the. States, the question still remains as to whether or not the State can abrogate the right of action given by the common law by adopting a compulsory compensation act. From the decision of this Court in Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33, to the decisions of this Court during the 1933 October Term hereinafter referred to, it was the almost unanimous opinion of the bar and of the federal and state bench that the right and the remedy were creations of the federal statute. The arguments proving the basic soundness of this position and the reasons therefor are set forth in the Rigsby case, supra, and are clearly expressed in the majority opinion of the Court of Appeals of New York in Ward v. Erie R. Co., supra. This view has been adhered to in the following cases involving compulsory compensation acts: McMahon v. Montour R. Co., 270 U. S. 628; Ross v. Schooley, 257 Fed. 290, cert, den., 249 U. S. 615; Ward v. Erie R. Co., 230 N. Y. 230, cert, den., 256 U. S. 696; Geraghty v. Lehigh Valley Ry. Co., 70 F. (2d) 300; Leuthe v. Erie R. Co., 12 F. Supp. 161; Miller v. Reading Co., 292 Pa. 44; Kenna v. Calumet, H. & S. E. R. Co., 284 Ill. 301; Flanigan v. Hines, 108 Kan. 133; Kraemer v. Chicago & N. W. TIPTON v. ATCHISON RY. CO. 143 141 Argument for Petitioner. R. Co., 148 Minn. 310; Southern Pacific Co. v. Henderson, 208 S. W. 561 (Tex.). A contrary view is expressed in Delaware, L. & W. R. Co. v. Peck, 225 Fed. 261, but a different conclusion was reached in Ross v. Schooley, 257 Fed. 290, cert, den., 249 U. S. 615. See Director General v. Ronald, 265 Fed. 138. That the view hereinbefore set forth has been universally adopted and that the rule so laid down has become a settled principle of law, upon which rights have rested for many many years, is shown by the great body of reported cases that have followed the theory of the Rigsby case. San Antonio Ry. v. Wagner, 241 U. S. 476, 480; Pennsylvania R. Co. v. Logansport Loan & Trust Co., 29 F. (2d) 1; Detroit Ry. v. Cravens, 13 F. (2d) 352; Devine v. Baltimore & Ohio R. Co., 253 Fed. 948; Dedinger v. Pennsylvania R. Co., 39 F. (2d) 799; St. Louis R. Co. v. Smith, 254 Fed. 581 ; Tyon v. Wabash Ry. Co., 207 Mo. App. 337; Carey v. New York Central R. Co., 250 N. Y. 345; Ewing v. Coal & Coke Ry., 82 W. Va. 433; St. Louis & S. F. R. Co. v. Barron, 166 Ark. 647 ; Grew v. Boston Ry. Co., 83 N. H. 385; Sims v. Pennsylvania R. Co., 279 Pa. 114; Anderson v. Chesapeake & Ohio Ry. Co., 352 Ill. 561, cert, den., 290 U. S. 675. No decision save the one now under review before this Court has held that a compulsory Workmen’s Compensation Act is the sole remedy of an employee injured by reason of a violation of the Safety Appliance Act or indeed that the right and remedy are not created by that Act. The cases decided by this Court in the October Term, 1933, do not so hold. Distinguishing: Fairport, P. & E. Ry. v. Meredith, 292 U. S. 589; Gilvary v. Cuyahoga Valley R. Co., 292 U. S. 57; Moore v. Chesapeake & Ohio Ry., 291 U. S. 205. Assuming that the right is a creation of the federal statute and that the remedy for violation of the right 144 OCTOBER’ TERM, 1935. Argument for Respondent. 298 U.S. springs from the common law of the States, we come to the question of how far the States can abrogate the right. It is important to consider that the compensation given under a compulsory Workmen’s Compensation Act is not damages for violation of a right. It is compensation arising because of a status and has nothing to do with a violation of a duty. Kenna v. Calumet H. & S. E. R. Co., 284 Ill. 301; North Alaska Salmon Co. v. Pillsbury, 174 Cal. 1; Alaska Packers Assn. v. Industrial Accident Comm’n, 294 U. S. 532. The right created by the federal statute exists only in so far as it can be enforced by action. There is no right as distinguished from the right to enforce the liability for the breach of duty. As the courts have stated, the creation of the duty by Congress gave rise to a correlative right and that right can only be a right to recover damages. Regardless of how far the States can regulate the particular remedy for a violation of that right, they can not destroy the right by refusing any remedy, any more than they could make “assumption of risk” a defense. This, a compulsory compensation act purports to do, and this it can not do. Consequently whether the right and remedy are creations of the federal Act, or only the right is a creation of the federal Act, in neither event can the right be destroyed by a compulsory compensation Act. Assuming that the existence of any remedy for injury, caused by a violation of the Safety Appliance Acts, is a matter left to the States and that a State can adopt a compulsory compensation Act and make it the sole remedy, California, where the accident occurred, has not done this. The Court accepts the meaning and scope given to a state Workmen’s Compensation Act by a local state court. Mr. Leo E. Sievert, with whom Messrs. Robert Brennan and Charles H. Woods were on the brief, for respondent. 141 TIPTON v. ATCHISON RY. CO. Opinion of the Court. 145 The Federal Safety Appliance Act does not give petitioner any right to sue his employer. Moore v. Chesapeake & Ohio Ry. Co., 291 U. S. 205; Minneapolis, St. P. & S. S. M. R. Co. v. Popplar, 237 U. S. 369; Gilvary v. Cuyahoga Valley R. Co., 292 U. S. 57. Petitioner’s rights are defined by the California Workmen’s Compensation Act within the jurisdiction of the Industrial Accident Commission of the State, by appropriate proceedings therein,* and not by any action at law in the courts. Mr. Justice Roberts delivered the opinion of the Court. The petitioner, a citizen of California, brought an action against the respondent in the Superior Court of the State to recover for injuries sustained in the course of his employment as a switchman. The complaint recites that the respondent, a Kansas corporation, is a common carrier by railroad in interstate commerce, authorized to transact business in California, and that the line on which the accident occurred is a highway of interstate commerce. The cause of petitioner’s injury is alleged to have been a defective coupling apparatus upon a freight car, used in violation of the Federal Safety Appliance Acts.1 The complaint does not state that, at the time of the accident, petitioner was engaged in interstate commerce. After removal to the federal court a demurrer was filed challenging the complaint for failure to state a cause of action. The demurrer was sustained and leave to amend refused. The Circuit Court of Appeals affirmed, holding that as the petitioner, when injured, was not engaged in interstate commerce, he may seek redress only 1 March 2, 1893, c. 196, 27 Stat. 531, U. S. C. Tit. 45, §§ 1-7; March 2, 1903, c. 976, 32 Stat. 943, U. S. C. Tit. 45, §§ 8-10; April 14, 1910, c. 160, 36 Stat. 298, U. S. C. Tit. 45, §§ 11-16. 65773°—36--10 146 OCTOBER TERM, 1935. Opinion of the Court. 298 U.S. under the California workmen’s compensation act.2 The petitioner sought review by this court on the ground that the decision conflicts with adjudications of the California courts sustaining the right to maintain an action for damages in like circumstances. We granted certiorari. The Safety Appliance Acts impose an absolute duty upon an employer and prescribe penal sanctions for breach. The earliest, that of 1893, affected only cars which were being used in interstate commerce. By the Act of 1903 the duty was extended to all cars used upon any railroad which is a highway of interstate commerce.3 The absolute duty imposed necessarily supersedes the common law duty of the employer. But, unlike the Federal Employers’ Liability Act, which gives a right of action for negligence, the Safety Appliance Acts leave the nature and the incidents of the remedy to the law of the states.4 The Safety Appliance Acts modify the enforcement, by civil action, of the employe’s common law right in only one aspect, namely, by withdrawing the defense of assumption of risk.5 They do not touch the common or statute law of a state governing venue, limitations, contributory negligence, or recovery for death by wrongful act.® 2 78 F. (2d) 450. 3 Section 1, U. S. C. Tit. 45, § 8; Southern Ry. Co. v. United States, 222 U. S. 20. 4 Moore v. Chesapeake & 0. Ry. Co., 291 U. S. 205, 215-216. ® Minneapolis, St. P. & S. S. M. Ry. Co. v. Popplar, 237 U. S. 369, 372. 88. Dee Hanson for respondent. Reported below: 80 F. (2d) 436. Nos. 813 and 814. Van Doren v. Oak Park Trust & Savings Bank. April 13, 1936. Petition for writs of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. J. Kentner Elliott for petitioner. Mr. Henry N. Shabsin for respondent. Reported below: 79 F. (2d) 859. No. 816. International Alliance of Theatrical Stage Employees et al. v. Cameron et al. April 13, 1936. Petition for writ of certiorari to the Court of Errors and Appeals of New Jersey denied. Mr. Saul Nemser for petitioners. Mr. Wallace P. Berkowitz for respondents. Reported below: 119 N. J. Eq. 577; 183 Atl. 157. No. 818. Boone, Receiver, et al. v. American Veterinary Medical Assn, et al. April 13, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for 660 OCTOBER TERM, 1935. Decisions Denying Certiorari. 298 U. S. the Sixth Circuit denied. Messrs. D. C. Webb and John W. Green for petitioners. Mr. John Jennings, Jr., for respondents. Reported below: 85 F. (2d) 616. No. 819. Allen v. Cloisters Building Corp, et al. April 13, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Meyer Abrams and Max Shulman for petitioner. Messrs. Walter E. Beebe, Claude A. Roth, and Arthur M. Cox for respondents. Reported below: 82 F. (2d) 1002. Nos. 821 and 822. Kattelman v. Madden, Receiver. April 13, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. P. H. Cullen and Clem F. Storckman for petitioner. Mr. Howard G. Cook for respondent. Reported below: 82 F. (2d) 1012. No. 825. Miller v. Travelers Insurance Co. April 13, 1936. Petition for writs of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. John A. Bloomingston for petitioner. Mr. Weymouth Kirkland for respondent. Reported below: 80 F. (2d) 503. No. 829. Berman v. McDonnell, U. S. Marshal. April 13, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Eugene L. Garey for petitioner. Solicitor General Reed, Assistant Attorney General McMahon and Mr. Wm. W. Barron for respondent. Reported below: 80 F. (2d) 361. OCTOBER TERM, 1935. 661 298 U. S. Decisions Denying Certiorari. No. 836. Kansas City Bridge Co. v. State Highway Commission. April 13, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Richard S. Righter and J. Fairfax Loughborough for petitioner. Messrs. Carl E. Bailey and Walter L. Pope for respondent. Reported below: 81 F. (2d) 689. No. 866. Fidelity & Deposit Co. v. Pennsylvania R. Co. April 13, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Messrs. Francis B. Bracken, Wm. Clarke Mason, and John Russell, Jr., for petitioner. Messrs. Robert T. Me-. Cracken, George G. Chandler, and Henry Wolfe Biklé for respondent. Reported below : 81 F. (2d) 526. No. 905. Jobissy v. Murphy, Warden, et al. April 27, 1936. Petition for writ of certiorari to the Supreme Court of New York, and motion for leave to proceed further in forma pauperis, denied. Mr. John Jobissy, pro se. No appearance for respondents. Reported below: 268 N. Y. 695; 198 N. E. 562. No. 914. Kustoff v. State Bar of California. April 27, 1936. Petition for writ of certiorari to the Supreme Court of California, and motion for leave to proceed further in forma pauperis, denied. Mr. Michael I. Kustoff, pro se. No appearance for respondent. No. 841. Cabanero et al. v. Torres, Secretary of Labor, et al. April 27, 1936. Petition for writ of certiorari to the Supreme Court of the Commonwealth of 662 OCTOBER TERM, 1935. Decisions Denying Certiorari. 298 IT. S. the Philippines, and motion for leave to proceed further in forma pauperis, denied. Mr. Guillermo B. Guevara for petitioners. Messrs. W. H. Lawrence and L. S. Tillotson for respondents. No. 932. Gorson v. North Carolina ex rel. Attorney General. April 27, 1936. Petition for writ of certiorari to the Supreme Court of North Carolina, and motion for leave to proceed further in forma pauperis, denied. Mr. J. Will Pless for petitioner. No appearance for respondent. Reported below: 209 N. C. 320; 183 S. E. 392. No. 882. Duke v. Committee on Grievances et al. April 27, 1936. 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, pro se. No appearance for respondents. Reported below: 65 App. D. C. 284; 82 F. (2d) 890. No. 794. Norton v. Lyon Van & Storage Co. et al. April 27, 1936. Petition for writ of certiorari to the District Court of Appeal, of California, denied. Mr. M. G. Norton, pro se. No appearance for respondents. Reported below: 9 Cal. App. (2d) 199; 49 P. (2d) 311. No. 807. County of Westchester v. Montrose Contracting Co., Inc. April 27, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. William A. Davidson and Francis J. Morgan for petitioner. Mr. Frederick W. Newton for respondent. Reported below: 80 F. (2d) 841. OCTOBER TERM, 1935. 663 298 U. S Decisions Denying Certiorari. No. 815. Cinema Patents Co., Inc. v. Columbia Pictures Corp, et al. April 27, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Herbert A. Huebner for petitioner. Mr. Frank L. A. Graham for respondents. Reported below: 80 F. (2d) 332. No. 820. Norton et ux. v. Braniff Investment Co. et al. April 27, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. E. T. Miller for petitioners. Mr. R. C. Johnson for respondents. Reported below: 80 F. (2d) 598. No. 823. London Shoe Co., Inc. v. Commissioner of Internal Revenue. April 27, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Benjamin A. Javits for petitioner. Solicitor General Reed, Assistant Attorney General Jackson, Mr. Sewall Key, and Miss Helen R. Carloss for respondent. Reported below: 80 F. (2d) 230. No. 827. Walsh v. Rosenberg. April 27, 1936. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia denied. Mr. Cornelius H. Doherty for petitioner. Messrs. Alvin L. Newmyer, David G. Bress, and Lewis H. Shapiro for respondent. Reported below: 65 App. D. C. 157; 81 F. (2d) 559. No. 833. Robinson v. Commissioner of Internal Revenue. April 27, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Cir- 664 OCTOBER TERM, 1935. Decisions Denying Certiorari. 298 U. S. cuit denied. Mr. Bernhard Knollenberg for petitioner. Solicitor General Reed, Assistant Attorney General Jack-son, and Mr. Sewall Key for respondent. Reported below: 80 F. (2d) 1018. No. 839. Carnahan v. Missouri-Kansas-Texas Ry. Co. April 27,1936. Petition for writ of certiorari to the Supreme Court of Missouri denied. Mr. Oscar S. Hill for petitioner. Messrs. Joseph M. Bryson and Charles S. Burg for respondent. Reported below: 338 Mo. 23; 88 S. W. (2d) 1027. No. 840. Adamowicz et al. v. United States. April 27, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Leo H. Klugherz for petitioners. Solicitor General Reed, Assistant Attorney General McMahon, and Mr. Mahlon D. Kiefer for the United States. Reported below: 82 F. (2d) 288. No. 846. Piquett v. United States. April 27, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. John Elliott Byrne for petitioner. Solicitor General Reed, Assistant Attorney General McMahon, and Mr. Wm. W. Barron for the United States. Reported below: 81 F. (2d) 75. No. 852. Equitable Life Assurance Society v. Salmen. April 27, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. W. H. Watkins, S. C. Mize, P. H. Eager, Jr., and James H. McIntosh for petitioner. Messrs. Arthur A. Moreno and Earle N. Floyd for respondent. Reported below: 81 F. (2d) 571. OCTOBER TERM, 1935. 665 298 U. S. Decisions Denying Certiorari. No. 803. Wong Shong Been v. Proctor, Commissioner of Immigration. April 27, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Fred H. Lysons for petitioner. Solicitor General Reed, Assistant Attorney General McMahon, and Messrs. Bart W. Butler, Wm. W. Barron, and Lee A. Jackson for respondent. Reported below: 79 F. (2d) 881. No. 826. Henneford et al. v. Paramount Pictures Distributing Co., Inc. et al. April 27, 1936. Petition for writ of certiorari to the Supreme Court of Washington denied. Mr. R. G. Sharpe for petitioners. Messrs. Gabriel L. Hess and Arthur G. Cohen for respondents. Reported below: 184 Wash. 376; 51 P. (2d) 385. No. 830. Landau v. United States Attorney. April 27, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. David P. Siegel for petitioner. Solicitor General Reed, Assistant Attorney General McMahon, and Messrs. Wm. W. Barron and Young M. Smith for respondent. Reported below: 82 F. (2d) 285. No. 831. Outlaw v. United States. April 27, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Walter B. Scott and W. P. McLean for petitioner. Solicitor General Reed, Assistant Attorney General McMahon, and Mr. Wm. W. Barron for the United States. Reported below: 81 F. (2d) 805. No. 832. Fidelity & Deposit Co. v. United States. April 27, 1936. Petition for writ of certiorari to the Cir 666 OCTOBER TERM, 1935. Decisions Denying Certiorari. 298 U. S. cuit Court of Appeals for the Ninth Circuit denied. Mr. Joe Crider, Jr., for petitioner. Solicitor General Reed, Assistant Attorney General Jackson, and Messrs. John MacC. Hudson, Sewall Key, and & Dee Hanson for the United States. Reported below: 80 F. (2d) 24. No. 848. City National Bank et al. v. Flood. April 27, 1936. Petition for writ of certiorari to the Supreme Court of Iowa denied. Messrs. J. B. Flick and H. M. Havner for petitioners. Messrs. James C. Davis, A. A. McLaughlin, and George E. Hise for respondent. Reported below: 220 Iowa 935; 263 N. W. 321. No. 855. Peak v. Commissioner of Internal Revenue. April 27, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Richard S. Doyle, Howard J. Clark, and W. W. Ross for petitioner. Solicitor General Reed, Assistant Attorney General Jackson, and Messrs. Sewall Key and Harry Marselli for respondent. Reported below: 80 F. (2d) 761. No. 861. Maryland Casualty Co. v. Moore, Trustee. April 27, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. Edward F. McClennen for petitioner. Mr. Harold S. Davis for respondent. Reported below: 82 F. (2d) 189. No. 868. Simon v. New Jersey. April 27, 1936. Petition for writ of certiorari to the Court of Errors and Appeals of New Jersey denied. Messrs. Edmund M. Toland and Wm. E. Leahy for petitioner. Messrs. Abe OCTOBER TERM, 1935. 667 298 U. S. Decisions Denying Certiorari. J. David and Joseph Lanigan for respondent. Reported below: 116 N. J. L. 134; 182 Atl. 631. Nos. 8.70 and 871. Hawkins et al., Receivers, v. Railroad Credit Corp. April 27, 1936. Petition for writs of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. W. B. Rodman, W. G. Brantley, Jr., and Carl H. Richmond for petitioners. Messrs. Richard H. Wilmer and Daniel Willard, Jr., for respondent. Reported below: 80 F. (2d) 818. No. 873. Du Vall v. United States. April 27, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Leslie C. Hardy for petitioner. Solicitor General Reed, Assistant Attorney General McMahon, and Messrs. Wm. W. Barron and Young M. Smith for the United States. Reported below: 82 F. (2d) 382. No. 875. Zurich General Accident & Liability Insurance Co., Ltd. v. Daffern. April 27, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Daffan Gilmer for petitioner. No appearance for respondent. Reported below: 81 F. (2d) 179. No. 947. Belt v. Zerbst, Warden. May 4, 1936. 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. J. S. Belt, pro se. No appearance for respondent. Reported below: 82 F. (2d) 18. 668 OCTOBER TERM, 1935. Decisions Denying Certiorari. 298 U. S. No. 851. Sun-Maid Raisin Growers v. California Packing Corp. May 4, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Wm. J. Hughes, Jr., A. W. Boy ken, and Edward S. Rogers for petitioner. Mr. Frank D. Madison for respondent. Reported below: 81 F. (2d) 674. No. 860. Dallas v. Gardner, Trustee. May 4, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. George Sergeant for petitioner. No appearance for respondent. Reported below: 81 F. (2d) 425. No. 862. Brimmer v. Union Oil Co. May 4, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Messrs. F. Chatterton, Frank W. Mondell, and Harold C. Morton for petitioner. Mr. Lewis W. Andrews for respondent. Reported below: 81 F. (2d) 437. No. 863. West Missouri Power Co. v. Washington et al. May 4, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Mr. B. I. Litowich for petitioner. Mr. Ralph T. O’Neil for respondents. Reported below: 80 F. (2d) 420. No. 876. Whitney Realty Co., Ltd. et al. v. Commissioner of Internal Revenue. May 4, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Ferris D. Stone and Cleveland Thurber for petitioners. Solicitor General Reed, Assistant Attorney General Jackson, and Messrs. OCTOBER TERM, 1935. 669 298 U. S. Decisions Denying Certiorari. Sewall Key and J. P. Jackson for respondent. Reported below: 80 F. (2d) 429. No. 880. Rosenberg et al. v. United States et al. May 4, 1936. Petition for writ of certiorari to the Surrogates’ Court, of New York, denied. Messrs. Joseph M. Hartfield, Martin A. Schenck, and Orrin G. Judd for petitioners. Solicitor General Reed, Assistant Attorney General Jackson, and Messrs. Sewall Key and Warner W. Gardner for the United States et al. Reported below: 269 N. Y. 247; 199 N. E. 206. No. 881. Duke Power Co. et al. v. South Carolina Tax Commission. May 4, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. J. H. Marion, W. S. O’B. Robinson, and H. J. Haynsworth for petitioners. Mr. John M. Daniel for respondent. Reported below: 81 F. (2d) 513. No. 884. Houbigant, Inc. v. Commissioner of Internal Revenue. May 4, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Second • Circuit denied. Messrs. Allen G. Gartner and Karl Knox Gartner for petitioner. Solicitor General Reed, Assistant Attorney General Jackson, and Messrs. Sewall Key and Arnold Raum for respondent. Reported below: 80 F. (2d) 1012. No. 890. Metro-Goldwyn Pictures Corp, et al. v. Sheldon et al. May 4, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Thomas D. Thacher and Nathan Burkan for petitioners. Mr. Arthur F. Driscoll for respondents. Reported below: 81 F.. (2d) 49. 670 OCTOBER TERM, 1935. Decisions Denying Certiorari. 298 U. S. No. 892. Uproar Company v. National Broadcasting Co. et al. May 4, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. Samuel Gottlieb for petitioner. Messrs. Melville F. Weston, Harry T. Klein, T. K. Schmuck, A. L. Ashby, and Richard Wait for respondents. Reported below: 81 F. (2d) 373. No. 915. Baldwin et al. v. National Savings & Trust Co., Trustee, et al. May 4, 1936. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia denied. Messrs. Charles D. Hamel and Raymond Benjamin for petitioners. Messrs. Benjamin S. Minor, H. Prescott Gatley, Arthur P. Drury, and Lloyd W. Dinkelspiet for respondents. Reported below: 65 App. D. C. 174; 81 F. (2d) 901. No. 952. Guaranty Trust Co. v. Monier et al. May 4, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Theodore Kiendl and John W. Davis for petitioner. Mr. Lorenzo D. Armstrong for respondents. Reported below: 82 F. (2d) 252. Nos. —, original (2 cases). Ex parte Fox. See ante, p. 642. No. 951. Lindh et al. v. Booth Fisheries Corp. May 18, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit, and motion for leave to proceed further in forma pauperis, denied. Mr. Edwin J. Brown for petitioners. No appearance for respondent. Reported below: 80 F. (2d) 733. OCTOBER TERM, 1935. 671 298 U. S. Decisions Denying Certiorari. No. 994. Moyerman v. Hale, Trustee. May 18, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit, and motion for leave to proceed further in forma pauperis, denied. Anna D. Moyerman, pro se. No appearance for respondent. Reported below: 81 F. (2d) 864. No. 999. Davis, Administratrix, v. Ruzicka. May 18, 1936. Petition for writ of certiorari to the Court of Appeals of Maryland, and motion for leave to proceed further in forma pauperis, denied. Messrs. I. Irwin Bolotin and Bernard H. Conn for petitioner. No appearance for respondent. Reported below: 170 Md. 112; 183 Atl. 569. No. 916. A. C. Spark Plug Co. v. Motor Improvements, Inc. May 18, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. The Chief Justice and Mr. Justice Roberts took no part in the consideration and decision of this application. Messrs. Harold W. Norman and John M. Zane for petitioner. Messrs. Nathan L. Miller, Theo. S. Kenyon, and Carl M. Owen for respondent. Reported below: 80 F. (2d) 385. No. 854. Porto Rico Brokerage Co., Inc. et al. v. United States. May 18, 1936. Petition for writ of certiorari to the United States Court of Customs and Patent Appeals denied. Mr. James R. Beverly for petitioners. Solicitor General Reed, Assistant Attorney General Jackson, and Messrs. Aubrey Lawrence and William Cattron Rigby for the United States. Reported below: 23 C. C. P. A. (Cust.) 259; 80 F. (2d) 521. 672 OCTOBER TERM, 1935. Decisions Denying Certiorari. 298 U. S. No. 874. Welborn et al., Trustees, et al. v. Burns Trading Co. May 18, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Mr. William V. Hodges for petitioners. Messrs. David P. Strickler and Ben S. Wendelken for respondent. Reported below: 81 F. (2d) 691. No. 889. National Casket Co. v. United States. May 18, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. John E. Hughes, Richard T. Green, and James L. Dohr for petitioner. Solicitor General Reed, Assistant Attorney General Jackson, and Messrs. Sewall Key and Joseph M. Jones for the United States. Reported below: 79 F. (2d) 1004. No. 893. Fox v. Capital Company. May 18, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Benjamin Reass for petitioner. Messrs. Frederick H. Wood, William D. Whitney, and Samuel B. Stewart, Jr., for respondent. Reported below: 85 F. (2d) 97. No. 899. Camden Fire Insurance Assn. v. Martin. May 18, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Samuel Levin for petitioner. Mr. Charles S. Deneen for respondent. Reported below: 80 F. (2d) 275. No. 900. Ensminger v. Lehigh Valley R. Co. May 18, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. OCTOBER TERM, 1935. 673 298 U. S. Decisions Denying Certiorari. Thomas J. O’Neill for petitioner. Mr. Clifton P. Williamson for respondent. Reported below: 80 F. (2d) 1010. No. 901. C. M. Kemp Manufacturing Co. v. Hoeltke. May 18, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. Arion V. Cushman and Lewis W. Lake for petitioner. Mr. Frank Keiper for respondent. Reported below: 80 F. (2d) 912. No. 902. Citizens Passenger Ry. Co. et al. v. Public Service Commission. May 18, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Messrs. Ulric J. Mengert, W. W. Montgomery, Jr., John Russell, Jr., F. B. Bracken, Wm. E. Mikell, Jr., Maurice B. Saul, John J. Sullivan, and Joseph Gilfillan for petitioners. Messrs. Richard J. Beamish, Louis E. Levinthal, and Charles J. Margiotti for respondent. Reported below: 82 F. (2d) 481. No. 910. Allen et al. v. Georgian Hotel Corp, et al. May 18, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Meyer Abrams and Max Shulman for petitioners. Messrs. George M. Burditt, Arthur M. Cox, and Isaac E. Ferguson for respondents. Reported below: 82 F. (2d) 917. No. 912. Wolff et al. v. Jordan Marsh Co. May 18, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. Arthur B. Marsh for petitioners. Mr. Nathan Heard for respondent. Reported below: 80 F. (2d) 314. 65733°—36-43 674 OCTOBER TERM, 1935. Decisions Denying Certiorari. 298 U. S. No. 943. Oliver et al. v. Richmond; and No. 944. Ruddock v. Same. May 18, 1936. Petition for writs of certiorari to the Supreme Court of Appeals of Virginia denied. Messrs. Thomas B. Gay, T. Justin Moore, and Joseph F. Hall for petitioners. Mr. James E. Cannon for respondent. Reported below: 165 Va. 538, 552; 178 S. E. 48, 44. No. 891. Trojan Powder Co. v. United States. May 18, 1936. Petition for writ of certiorari to the Court of Claims denied. Mr. John H. Jackson for petitioner. Solicitor General Reed, Assistant Attorney General Jackson, and Mr. Sewall Key for the United States. Reported below: 82 Ct. Cis. 312; 13 F. Supp. 61. No. 908. Crown Willamette Paper Co. v. McLaughlin, Collector of Internal Revenue. May 18, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Alfred Sutro, Felix T. Smith, and Eugene D. Bennett for petitioner. Solicitor General Reed, Assistant Attorney General Jackson, and Messrs. John MacC. Hudson, Sewall Key, and Carlton Fox for respondent. Reported below: 81 F. (2d) 365. No. 909. McConnaughey et al. v. Personal Industrial Bankers, Inc. May 18, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. W. S. McConnaughey for petitioners. Messrs. U. G. Denman and Wm. M. Matthews for respondent. Reported below: 80 F. (2d) 327. OCTOBER TERM, 1935. 675 298 U. 8. Decisions Denying Certiorari. No. 913. Madsen v. Baltimore Mail Steamship Co. May 18, 1936. Petition for writ of certiorari to the Supreme Court of New York, Appellate Division, 2d Department, denied. Mr. Simone N. Gazan for petitioner. Messrs. Raymond Parmer and Vernon S. Jones for respondent. Reported below: 247 App. Div. 739, 287 N. Y. S. 159; 269 N. Y. 379, 199 N. E. 628. No. 917. Courier Publishing Co., Inc. v. Police Jury et al. May 18, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Eberhard P. Deutsch for petitioner. No appearance for respondents. Reported below: 82 F. (2d) 1. _________ No. 918. Moffett, Executrix, et al. v. Robbins, Administrator. May 18, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Messrs. William Buckholz and Martin J. O’Donnell for petitioners. Messrs. Orlin A. Weede, Edwin S. McAnany, John B. Pew, and Douglas Hudson for respondent. Reported below: 81 F. (2d) 431. No. 919. Kleinschmidt et al. v. Wallace. May 18, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. James A. Reed and Oscar E. Buder for petitioners. Messrs. Lon 0. Hocker, James C. Jones, Frank Y. Gladney, and James C. Jones, Jr., for respondent. Reported below: 80 F. (2d) 897. No. 922. Evans Products Co. v. Commissioner of Internal Revenue. May 18,1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth 676 OCTOBER TERM, 1935. Decisions Denying Certiorari. 298 U. S. Circuit denied. Mr. Briggs G. Simpich for petitioner. Solicitor General Reed, Assistant Attorney General Jack-son and Messrs. Sewall Key, John Mac 0. Hudson, F. E. Youngman, and Warner W. Gardner for respondent. No. 924. Likly & Rockett Trunk Co. v. Provident Mutual Life Insurance Co. May 18, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Thomas H. Garry for petitioner. No appearance for respondent. No. 925. Gans Steamship Line v. Bowers, Executor. May 18,1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. John E. Hughes and Jacob S. Seidman for petitioner. Solicitor General Reed, Assistant Attorney General Jackson, and Messrs. Sewall Key and Carlton Fox for respondent. Reported below: 82 F. (2d) 181. No. 926. Rudolph Wurlitzer Co. v. Commissioner of Internal Revenue ; and No. 927. Wurlitzer Grand Piano Co. v. Same. May 18, 1936. Petition for writs of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Elden McFarland, Ike Lanier, and Oscar Stoehr for petitioners. Solicitor General Reed, Assistant Attorney General Jackson, and Messrs. Sewall Key and John MacC. Hudson for respondent. Reported below: 81 F. (2d) 971. No. 929. Doherty v. Knowlton; and No. 930. Same v. Tremblay. May 18, 1936. Petition for writs of certiorari to the Circuit Court of Appeals OCTOBER TERM, 1935. 677 298U.S. Decisions Denying Certiorari. for the First Circuit denied. Messrs. Robert G. Dodge and Harold S. Davis for petitioner. Mr. George L. Dilla-way for respondents. Reported below: 81 F. (2d) 920. No. 933. Leonardi et al. v. Chase National Bank. May 18, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Nathan April for petitioners. Mr. Henry Root Stern for respondent. Reported below: 81 F. (2d) 19. No. 940. Fireman’s Mutual Aid Assn. v. Virginia. May 18, 1936. Petition for writ of certiorari to the Supreme Court of Appeals of Virginia denied. Mr. Andrew D. Christian for petitioner. Messrs. Abram P. Staples and W. W. Martin for respondent. Reported below: 166 Va. 34; 184 S. E. 189. No. 941. Sun Indemnity Co. et al. v. Bruckner-Mitchell, Inc. May 18,1936. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia denied. Messrs. P. J. J. Nicolaides, William F. Kelly, and Christopher B. Garnett for petitioners. Mr. Fontaine C. Bradley for respondent. Reported below: 65 App. D. C. 178; 82 F. (2d) 434. No. 945. Helvering, Commissioner of Internal Revenue, v. Matchette. May 18, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Solicitor General Reed for petitioner. Messrs. R. Kemp Slaughter and Hugh C. Bickford for respondent. Reported below: 81 F. (2d) 73. 678 OCTOBER TERM, 1935. Decisions Denying Certiorari. 298 U. S. No. 955. Franklin v. Chalaire. May 18, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Frank E. Hinckley and Wm. H. Lawrence for petitioner. Messrs. Warren Olney, Jr., Farnham P. Griffiths, and Walter Chalaire for respondent. Reported below: 81 F. (2d) 105. No. 958. Anraku v. General Electric Co. ; and No. 959. Pacific Importing Co. et al. v. Same. May 18, 1936. Petition for writs of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. J. Calvin Brown and Charles C. Montgomery for petitioners. Messrs. Charles Neave and Hubert Howson for respondent. Reported below: 80 F. (2d) 958. No. 1014. Cossack v. United States. May 25, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit, and motion for leave to proceed further in forma pauperis, denied. Mr. Loeb L. Cossack, pro se. No appearance for the United States. Reported below: 82 F. (2d) 214. No. 1017. Dorrance et al. v. Martin, State Tax Commissioner; and Nos. 1018 and 1055. Camden Safe Deposit & Trust Co. et al. v. Same. May 25, 1936. Petitions for writs of certiorari to the Court of Errors and Appeals of New Jersey denied. Mr. Justice Stone took no part in the consideration and decision of these applications. Mr. Wm. A. Schnader for petitioners in No. 1017. Mr. Merritt Lane for petitioners in Nos. 1018 and 1055. Messrs. George S. Hobart and Duane E. Minard for respondent. Reported below : 116 N. J. L. 362; 184 Atl. 743. OCTOBER TERM, 1935. 679 298 U. S. Decisions Denying Certiorari. Nos. 906 and 907. United States Rubber Co. v. Firestone Tire & Rubber Co. May 25, 1936. Petition for writs of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Merrell E. Clark and E. Clarkson Seward for petitioner. Messrs. A. L. Ely, Arthur C. Denison, and Frank 0. Richey for respondent. Reported below: 79 F. (2d) 948. No. 935. Uebersee Finanz-Korporation Aktien Gesellschaft v. Rosen et al. May 25, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. John W. Davis, Isidor J. Kresel, and Bernard Hershkopj for petitioner. Messrs. Alex. B. Siegel, Walter S. Logan, and Dean G. Acheson for respondents. Reported below: 83 F. (2d) 225. No. 936. Hillsborough County v. Equitable Life Insurance Co.; No. 937. Same v. Keefe; No. 938. Same v. Buck; and No. 939. Same v. Equitable Life Insurance Co. May 25, 1936. Petition for writs of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. John B. Sutton for petitioner. Mr. F. P. Fleming for respondents. Reported below: 82 F. (2d) 127. No. 942. Noxon Chemical Products Co., Inc. v. Unger et al. May 25, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. George H. Rosenstein for petitioner. Mr. George S. Silzer for respondents. Reported below: 82 F. (2d) 312. 680 OCTOBER TERM, 1935. Decisions Denying Certiorari. 298U.S. No. 962. Liggett & Myers Tobacco Co. v. De Parcq. May 25, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. F. H. Stinchfield for petitioner. Mr. Mortimer H. Boutelle for respondent. Reported below: 81 F. (2d) 777. Nos. 965 and 966. In re Lee. May 25, 1936. Petition for writs of certiorari to the Court of Appeals of Maryland denied. Mr. Stuart S. Janney for petitioner. Messrs. Herbert R. O’Conor and Wm. L. Henderson for the State of Maryland in opposition. Reported below: 170 Md. 43; 183 Atl. 560. No. 968. Enelow v. New York Life Insurance Co. May 25, 1936. Petition for writ of certiorari to the Circuit, Court of Appeals for the Third Circuit denied. Messrs. Charles H. Sachs and Louis Kaplan for petitioner. Messrs. William H. Eckert and Louis H. Cooke for respondent. Reported below: 83 F. (2d) 550. No. 969. Starr v. Commissioner of Internal Revenue; No. 970. True et al. v. Same; and No. 971. Dohme v. Same. May 25, 1936. Petition for writs of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Charles Markell for petitioners. Solicitor General Reed, Assistant Attorney General Jackson, and Messrs. Sewall Key and John MacC. Hudson for respondent. Reported below: 82 F. (2d) 964. No. 976. McGee et al. v. Baxter. May 25, 1936. Petition for writ of certiorari to the Circuit Court of OCTOBER TERM, 1935. 681 298 U. S. Decisions Denying Certiorari. Appeals for the Eighth Circuit denied. Mr. Charles T. Coleman for petitioners. Mr. Lamar Williamson for respondent. Reported below: 82 F. (2d) 695. No. 995. Bachman v. Davis, Receiver. May 25, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. William S. Oppenheim for petitioner. Mr. Lewis C. Jesseph for respondent. Reported below: 81 F. (2d) 600. No. 1011. Provident Life & Accident Insurance Co. v. Crady. May 25, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. J. B. Sizer for petitioner. Mr. Haveth E. Mau for respondent. Reported below: 82 F. (2d) 900. No. 1031. Shepard Broadcasting Service, Inc. et al. v. Aeolian-Skinner Organ Co. May 25, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. Paul D. P. Spearman for petitioners. Messrs. Robert Cushman and Clarence S. Walker for respondent. Reported below: 81 F. (2d) 392. No. 1032. Parker, Administrator, et al. v. James Granger, Inc. et al. See ante, p. 644. No. 1051. DeiBenque v. United States. June 1, 1936. 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. James J. Laughlin for petitioner. No appearance for the United States. Reported below: 85 F. (2d) 202. 682 OCTOBER TERM, 1935. Decisions Denying Certiorari. 298 U. S. No. 1057. Sims v. Rives. June 1, 1936. 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. James J. Laughlin for petitioner. No appearance for respondent. Reported below: 84 F. (2d) 871. No. 1061. Carden v. North Carolina. June 1, 1936. Petition for writ of certiorari to the Supreme Court of North Carolina, and motion for leave to proceed further in forma papueris, denied. Mr. J. B. Carden, pro se. No appearance for respondent. Reported below: 209 N. C. 404; 183 S. E. 898. No. 1062. Vincent v. Alabama. June 1, 1936. Petition for writ of certiorari to the Supreme Court of Alabama, and motion for leave to proceed further in forma pauperis, denied. Mr. Jesse L. Drennan for petitioner. No appearance for respondent. Reported below: 231 Ala. 657; 165 So. 844. No. 886. Atlantic Coast Line R. Co. v. Bethel. June 1, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. Thomas W. Davis and W. B. Rodman, Jr., for petitioner. Mr. James W. H. Roberts for respondent. Reported below: 81 F. (2d) 60. No. 920. Globe Gazette Printing Co. v. United States. June 1, 1936. Petition for writ of certiorari to the Court of Claims denied. Mr. Edward S. Bentley for petitioner. Solicitor General Reed, Assistant Attorney OCTOBER TERM, 1935. 683 298U.S. Decisions Denying Certiorari. General Jackson, and Mr. Sewall Key for the United States. Reported below: 82 Ct. Cis. 586; 13 F. Supp. 422. No. 954. Crook et al. v. Wallace, Receiver, et al. June 1, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. B. D. Tarlton for petitioners. Mr. Lewis Fisher for respondents. Reported below: 80 F. (2d) 787. No. 960. Virginian Ry. Co. v. Scott. June 1, 1936. Petition for writ of certiorari to the Supreme Court of Appeals of West Virginia denied. Messrs. John R. Pendleton and W. H. T. Loyall for petitioner. No appearance for respondent. Reported below: 117 W. Va. —; 184 S. E. 559. No. 964. Massachusetts Mutual Life Insurance Co. v. Mayo. June 1, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Raymond G. Wright for petitioner. Mr. Shirley D. Parker for respondent. Reported below: 81 F. (2d) 661. No. 975. New York ex rel. Rice v. Graves et al. June 1, 1936. Petition for writ of certiorari to the Supreme Court of New York denied. Mr. Howard E. Rein-heimer for petitioner. Mr. Joseph M. Mesnig for respondents. Reported below: 270 N. Y. 498; 200 N. E. 288. No. 977. Silk Center Building, Inc. v. Commissioner of Internal Revenue. June 1, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for 684 OCTOBER TERM, 1935. Decisions Denying Certiorari. 298 U. S. the Third Circuit denied. Mr. Fred A. Woodis for petitioner. Solicitor General Reed, Assistant Attorney General Jackson, and Mr. Sewall Key for respondent. Reported below: 82 F. (2d) 20. No. 978. New York Lumber Trade Assn, et al. v. Lacey et al. June 1,1936. Petition for writ of certiorari to the Supreme Court of New York denied. Messrs. Walter Gordon Merritt and John W. Simpson, 2d, for petitioners. Messrs. Louis B. Boudin, Ray Wood Allen, and Harry D. Thirkield for respondents. Reported below: 269 N. Y. 677; 200 N. E. 54. No. 981. American Diamond Lines, Inc. et al. v. Peterson, Administratrix, et al. ; and No. 982. The Black Gull et al. v. Same. June 1, 1936. Petition for writs of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. John W. Crandall for petitioners. Messrs. Richard L. Sullivan and Harry D. Thirkield for respondents. Reported below: 82 F. (2d) 758. No. 985. Frey & Horgan Corporation v. Superior Court et al. June 1,1936. Petition for writ of certiorari to the Supreme Court of California denied. Mr. Raimond E. Dee for petitioner. Mr. W. F. Williamson for respondents. Reported below: 5 Cal. (2d) 401; 55 P. (2d) 203. No. 989. Chesapeake & Ohio Ry. Co. v. Rich. June 1, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. W. T. Kinder for petitioner. Mr. David F. Anderson for respondent. Reported below: 81 F. (2d) 584. OCTOBER TERM, 1935. 685 298 U. S. Decisions Denying Certiorari. No. 993. Tousey et al. v. Wabash-Harrison Building Corp, et al. June 1, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Meyer Abrams and A. L. Myers for petitioners. Messrs. Arthur M. Cox, Edwin B. Mayer, and Claude A. Roth for respondents. 85 F. (2d) 395. No. 1004. Beale et al. v. Snead, Referee in Bankruptcy, et al. June 1, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Joseph F. Hall for petitioners. Mr. Meade T. Spicer, Jr., for respondents. Reported below: 81 F. (2d) 970. No. 1010. Harper v. Crenshaw et al. June 1, 1936. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia denied. Mr. William C. Sullivan for petitioner. Messrs. Roger J. Whiteford, P. H. Marshall, Arthur P. Drury, George Monk, James O’D. Moran, A. C. Wells, and George C. Gertman for respondents. Reported below: 65 App. D. C. 239; 82 F. (2d) 845. No. 1020. Callaghan et al. v. Marine Midland Trust Co., Trustee; No. 1021. Same v. City Bank Farmers Trust Co.; No. 1022. Same v. Central Hanover Bank & Trust Co., Trustee ; and No. 1023. Same v. President and Directors of the Manhattan Co., Trustees. June 1, 1936. Petition for writs of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Emil Weitzner for petitioners. Messrs. John Ross Delafield, Emery H. Sykes, John M. Perry, and J. M. Richardson Lyeth for respondents. Reported below: 82 F. (2d) 755. 686 OCTOBER TERM, 1935. Decisions Denying Certiorari. 298 U. S. No. 1041. H. M. Byllesby & Co. v. Welch. June 1, 1936. 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: 82 F. (2d) 539. No. 931. Cerro de Pasco Copper Corp. v. United States. June 1, 1936. Petition for writ of certiorari to the Court of Claims denied. Mr. Campbell E. Locke for petitioner. Solicitor General Reed, Assistant Attorney General Jackson, and Mr. Sewall Key for the United States. Reported below: 82 Ct. Cis. 442; 13 F. Supp. 633. No. 979. Driscoll Benevolent Estate, Ltd. et al. v. Shipp et al. June 1,1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Calvin S. Mauk for petitioners. Mr. W. I. Gilbert for respondents. Reported below: 80 F. (2d) 1010. No. 1002. Irving Trust Co., Trustee in Bankruptcy, et al. v. United States et al. June 1, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. William D. Whitney and Irwin N. Looser for petitioners. Messrs. W. B. Stewart and James R. Garfield for respondents. Reported below: 83 F. (2d) 20. No. 1005. Marifian v. United States; No. 1006. Kolar v. Same; and No. 1007. Fink v. Same. June 1, 1936. Petition for writs of certiorari to the Circuit Court of Appeals for the OCTOBER TERM, 1935. 687 298 U. S. Decisions Denying Certiorari. Eighth Circuit denied. Mr. Charles A. Lich for petitioners. Solicitor General Reed, Assistant Attorney General McMahon, and Mr. Wm. W. Barron for the United States. Reported below: 82 F. (2d) 628. No. 1050. Brukenfeld et al. v. New York Railways Corp, et al. June 1, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Frank E. Karelsen, Jr., and Godfrey Goldmark for petitioners. Messrs. Thomas O’G. FitzGibbon, Boykin C. Wright, Robert T. Swaine, Edwin S. S. Sunderland, and Samuel C. Duberstein for respondents. Reported below: 82 F. (2d) 739. No. 984. Connecticut Fire Insurance Co. v. Oakley Improved Building & Loan Co. et al. June 1,1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. J. Louis Kohl for petitioner. Messrs. Frank E. Wood, Robert S. Marx, and Harry Kasfir for respondents. Reported below: 80 F. (2d) 717. No. 992. Central States Life Insurance Co. v. Koplar Company. June 1, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. George B. Logan for petitioner. Mr. Samuel H. Liberman for respondent. Reported below: 80 F. (2d) 754. No. 996. Hopwood v. Abraham Lincoln Life Insurance Co. June 1, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Carrington T. Marshall and Curtis C. 688 OCTOBER TERM, 1935. Decisions Denying Certiorari. 298 U. S. Williams for petitioner. Messrs. Francis J. Wright and W. Edgar Sampson for respondent. Reported below: 81 F. (2d) 284. No. 998. Memphis Natural Gas Co. v. Gully, State Tax Collector, et al. ; and No. 1025. Gully, State Tax Collector, et al. v. Memphis Natural Gas Co. June 1, 1936. Petitions for writs of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Marcellus Green, Gamer W. Green, T. A. McEachern, Jr., and Walter P. Armstrong for Memphis Natural Gas Co. Messrs. Greek L. Rice, J. A. Lauderdale, and Edward W. Smith for Gully. Reported below: 82 F. (2d) 150. No. 1026. Gully, State Tax Collector, et al. v. Interstate Natural Gas Co. June 1, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Edward W. Smith, Greek L. Rice, and J. A. Lauderdale for petitioners. Messrs. William A. Dougherty and David Clay Bramlette for respondent. Reported below: 82 F. (2d) 145. No. 1009. Johnson et al. v. United States. June 1, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Wallace Muir and Francis Burke for petitioners. Solicitor General Reed, Assistant Attorney General McMahon, and Mr. Wm. W. Barron for the United States. Reported below: 82 F. (2d) 500. No. 1012. Freeman v. United States. June 1, 1936. Petition for writ of certiorari to the Circuit Court of OCTOBER TERM, 1935. 689 298 U. S. Decisions Denying Certiorari. Appeals for the Second Circuit denied. Mr. Louis Halle for petitioner. Solicitor General Reed, Assistant Attorney General McMahon, and Mr. Wm. W. Barron for the United States. Reported below: 82 F. (2d) 1022. No. 1013. Laska v. United States. June 1, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Messrs. Ralph L. Carr, Jean S. Breitenstein and John G. Reid for petitioner. Solicitor General Reed, Assistant Attorney General McMahon, and Messrs. Wm. W. Barron and Warner W. Gardner for the United States. Reported below: 82 F. (2d) 672. No. 986. Munoz et al. v. Porto Rico Railway, Light & Power Co. June 1, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Messrs. William Cattron Rigby and Nathan R. Margold for petitioners. Messrs. Carroll G. Walter and Henri Brown for respondent. Reported below: 83 F. (2d) 262. No. 997. Washington v. Commissioner of Internal Revenue. June 1, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Bernhard Knollenberg for petitioner. Solicitor General Reed, Assistant Attorney General Jackson, and Messrs. Sewall Key and Joseph M. Jones for respondent. Reported below: 80 F. (2d) 829. No. 1015. United States v. Chicago, Burlington & Quincy R. Co. June 1, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth 65773°—36------44 690 OCTOBER TERM, 1935. Decisions Denying Certiorari. 298 U. S. Circuit denied. Solicitor General Reed for the United States. Messrs. J. C. James and Bruce Scott for respondent. Reported below: 82 F. (2d) 131. No. 1043. Craig v. United States; and No. 1044. Weinblatt v. Same. June 1, 1936. Petition for writs of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Mark L. Herron, Aloysius I. McCormick, and John Walsh for petitioners. Solicitor General Reed, Assistant Attorney General McMahon, and Mr. Wm. W. Barron for the United States. Reported below: 81 F. (2d) 816. No. 1046. J. V. Lane & Co., Inc., v. The Californian. June 1, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Neil P. Cullom for petitioner. Mr. L. deGrove Potter for respondent. Reported below: 82 F. (2d) 283. No. 1068. Williams Brothers Well Treating Corp. v. Dow Chemical Co. June 1, 1936. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Messrs. Nathan A. Gibson, James H. Maxey, and Wilbur J. Holleman for petitioner. Messrs. Arthur C. Brown, Russell Wiles, and George A. Chritton for respondent. Reported below: 81 F. (2d) 495. OCTOBER TERM, 1935. 691 298 U. S. Rehearings Denied. CASES DISPOSED OF WITHOUT CONSIDERATION BY THE COURT, FROM MARCH 31 TO AND INCLUDING JUNE 1, 1936. No. 796. Frost et al. v. United States. On petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit. April 13, 1936. Dismissed on motion of Messrs. Lewis Fisher and Hugh H. Obear for petitioners. Solicitor General Reed and Mr. George W. Wilson for the United States. Reported below: 80 F. (2d) 341. PETITIONS FOR REHEARING DENIED, FROM MARCH 31 TO AND INCLUDING JUNE 1, 1936. * No. 866 (October Term, 1934). Everett Mills v. United States. April 6, 1936. 295 U. S. 866. No. 386. Phillips Petroleum Co. et al. v. Jenkins. April 27, 1936. 297 U. S. 629. No. 388. Triplett et al. v. Lowell et al. April 27, 1936. 297 U. S. 638. No. 583. Chandler, Receiver, v. Peketz. April 27, 1936. 297 U. S. 609. No. 733. Blume v. United States. April 27, 1936. 297 U. S. 722. No. 865. Cossack v. United States. April 27, 1936. No. 791. Atlantic Coast Line R. Co. v. Commissioner of Internal Revenue ; and * See Table of Cases Reported in this volume for earlier decisions in these cases, unless otherwise indicated. 692 OCTOBER TERM, 1935. Rehearings Denied. 298U.S. No. 792. Carolina, Clinchfield & Ohio Ry. Co. v. Same. May 4, 1936. No. 819. Allen v. Cloisters Building Corp, et al. May 18, 1936. No. 858. Poresky v. Ryan, Registrar of Motor Vehicles. May 18, 1936. No. 885. Lynch v. United States. May 18, 1936. No. 659. Hines, Administrator of Veterans’ Affairs, v. Stein, Guardian. May 25,1936. Ante, p. 94. No. 667. The Arizona et al. v. Anelich, Administratrix. May 25, 1936. Ante, p. 110. No. 696. Chicago Great Western R. Co. v. Rambo, Administratrix. May 25, 1936. Ante, p. 99. No. 794. Norton v. Lyon Van & Storage Co. et al. May 25, 1936. No. 655. Acker et al. v. United States et al. June 1, 1936. No. 656. United States et al. v. Corrick et al. June 1, 1936. No. 1017. Dorrance et al. v. Martin, State Tax Commissioner. June 1, 1936. AMENDMENTS OF RULES. ORDER. It is ordered that the Rules of this Court be, and they hereby are, amended as follows: That the words “Court of Appeals of the District of Columbia” in Rule 37, title and paragraph 1 thereof; in Rule 38, title and paragraphs 1, 2, and 5c thereof, and in Rule 39, title and text thereof, be changed to read “United States Court of Appeals for the District of Columbia.” That the words “Supreme Court of the Philippine Islands” in Rule 42, title and text thereof be changed to read “Supreme Court of the Commonwealth of the Philippines.” May 25, 1936. 693 AMENDMENTS OF BANKRUPTCY RULES. Order, June 1, 1936. It is Ordered that Rules XII, paragraph 3; XIV; XVII, paragraphs 1 and 7; XVIII, paragraph 4; XXI, paragraph 8; XXVIII; XXIX; XXXVIII; XLII, paragraph 2; XLIV, second paragraph; XLVII; XLVIII; and L, paragraphs 1, 5, 6 and 12, of the General Orders in Bankruptcy be, and they hereby are, amended, effective immediately, to read respectively as follows: XII 3. Applications for a discharge, or for the confirmation of a composition where the proceeding is had under section 12 bf the Act, or for an injunction to stay proceedings of a court or officer of the United States or of a State, shall be heard and decided by the judge. But he may refer such an application, or any specified issue arising thereon, to the referee, or in proceedings under section 77 and section 77 B of the Act, to a special master, to ascertain and report the facts. Unless otherwise ordered by the judge, applications for the confirmation of a debtor’s proposal under section 74 of the Act, and all objections thereto, shall be heard and decided by the referee. XIV NO OFFICIAL OR GENERAL TRUSTEE No official trustee shall be appointed by the court, nor any general trustee to act in classes of cases. XVII 1. The trustee shall, immediately upon entering upon his duties, send notice by mail to the Commissioner of Internal Revenue, Washington, D. C., of the adjudication 695 696 AMENDMENTS OF BANKRUPTCY RULES. of bankruptcy, and prepare a complete inventory of all the property of the bankrupt or debtor that comes into his possession. 7. This general order shall not apply to reorganization proceedings under section 77 or section 77 B of the Act. XVIII 4. This general order shall not apply to reorganization proceedings under section 77 or section 77 B of the Act. XXI 8. The provisions of this general order shall not apply to reorganization proceedings under section 77 or section 77 B of the Act. XXVIII REDEMPTION OF PROPERTY AND COMPOUNDING OF CLAIMS Whenever it may be deemed for the benefit of an estate to redeem and discharge any mortgage or other pledge, or deposit or lien, upon any property, real or personal, or to relieve said property from any conditional contract, and to tender performance of the conditions thereof, or to compound and settle any debts or other claims due or belonging to the estate, the trustee, or the bankrupt or debtor, or any creditor who has proved his debt, may file his petition therefor; and thereupon the court shall appoint a suitable time and place for the hearing thereof, notice of which shall be given as the court shall direct, so that all creditors and other persons interested may appear and show cause, if any they have, why an order should not be passed by the court upon the petition authorizing such act on the part of the trustee. This general order shall not apply to reorganization proceedings under section 77 or section 77 B of the Act. AMENDMENTS OF BANKRUPTCY RULES. 697 XXIX PAYMENT OF MONEYS DEPOSITED No moneys deposited as required by the Act shall be drawn from the depository unless by check or warrant, signed by the clerk of the court, or by a trustee, and countersigned by the judge of the court, or by a referee designated for that purpose, or by the clerk or his assistant under an order made by the judge, stating the date, the sum, and the account for which it is drawn; and an entry of the substance of such check or warrant, with the date thereof, the sum drawn for, and the account for which it is drawn, shall be forthwith made in a book kept for that purpose by the trustee or his clerk; and all checks and drafts shall be entered in the order of time in which they are drawn, and shall be numbered in the case of each estate. A copy of this general order shall be furnished to the depository, and also the name of any referee or clerk authorized to countersign said checks. This general order shall not apply to reorganization proceedings under section 77 or section 77 B of the Act. XXXVIII FORMS The several forms annexed to these general orders shall be observed and used, with such alterations as may be necessary to suit the circumstances of any particular case. In proceedings under any of the sections of Chapter VIII of the Bankruptcy Act, unless and until the debtor is adjudicated a bankrupt all forms used shall refer to him as a “debtor” and not a “bankrupt” and shall be captioned “In proceedings for a composition or extension,” “In proceedings for the reorganization of a railroad,” or “In proceedings for the reorganization of a corporation,” as the case may be, and not “In bankruptcy.” 698 AMENDMENTS OF BANKRUPTCY RULES. XLII 2. Except in reorganization proceedings under section 77 and section 77 B of the Act, such petition shall be heard at a meeting of creditors, and the referee in sending the notice of such meeting prescribed by section 58 of the Act shall state by whom and in what amount the allowance of the compensation or reimbursement for expenses is asked. XLIV Nothing herein contained shall prevent the court, in proceedings under section 77 or section 77 B of the Act, from authorizing the employment of attorneys who are attorneys of the corporation, or associated with its legal department, in connection with the operation of the business of the corporation by a trustee or trustees under subsection (c) of section 77 and subsection (c) of section 77 B, when such employment is found by the court to be in the public interest in relation to such operation and is not adverse to the interests of the trustee or trustees or of the creditors of the corporation. XLVII REPORTS OF REFEREES The reports of referees in all proceedings under the Act, and of special masters in proceedings under section 77 and section 77 B of the Act, shall be deemed presumptively correct, but shall be subject to review by the court, and the court may adopt the same, or may modify or reject the same in whole or in part when the court in the exercise of its judgment is fully satisfied that error has been committed: Provided, That when any matter is referred by consent of all parties in interest and the intention is plainly expressed in the consent order that the submission is to the referee or master as an arbitrator, the court may review the same only in ac- AMENDMENTS OF BANKRUPTCY RULES. 699 cordance with the principles governing a review of an award and decision by an arbitrator. XLVIII PROCEEDINGS UNDER SECTION 74 OF THE ACT The following additional rules shall apply to proceedings under section 74 of the Act: 1. Notice to creditors of the proposed appointment of a custodian or receiver may, in the interests of expedition, be given by publication instead of in writing, if the court so directs. 2. If a custodian or receiver is appointed, the notice of the first meeting which he is required to prepare shall be in form approved by the referee and the date of the meeting shall be fixed by the referee. 3. If the debtor is a wage-earner or a farmer, and any happenings occur which under the provisions of subdivision (1) of said section would otherwise be followed by an order of liquidation, and the debtor does not consent to liquidation, the court shall dismiss the proceedings and notify the creditors accordingly. If a composition or extension proposal is set aside for fraud as provided in subdivision (k) of said section, the case shall be reinstated and such proceedings shall be had as upon denial of confirmation under subdivision (1). 4. The commissions of the referee and of the custodian or receiver shall not exceed those payable to referees and receivers under sections 40 and 48 of the Act in the event of a composition in bankruptcy, and the amount of the debts whose maturity is to be extended shall be included for that purpose as part of “the amount to be paid creditors” within the meaning of those sections, but if the compensation so- computed shall appear to be in excess of what is fair and reasonable it shall be correspondingly reduced, the intent of this provision being that the amount of such fees shall be subject at all times to the approval of the court. If the estate is liquidated 700 AMENDMENTS OF BANKRUPTCY RULES. under the provisions of subdivision (1) of section 74 of the Act, the referee shall return to the estate any commissions previously received and shall be entitled to commissions on all moneys disbursed to creditors by the trustee as provided in section 40 of the Act. 5. The personal representative of a deceased individual who desires in his representative capacity to effect, under section 74, a settlement or composition of the debts of the estate, shall attach to his petition, in lieu of schedules, the following papers, certified as correct by the court which appointed him (hereinafter referred to as the probate court): (a) a copy of the order of his appointment, (b) a copy of an order of the probate court authorizing him to file the petition, (c) a detailed inventory of so much of the property constituting the estate as under the laws of the State of which the decedent died a resident would be available for creditors, and (d) a list of the names and addresses of the creditors, showing the amounts allowed or apparently owing to each, the nature of the securities or liens, if any, held by each, and the claims which are entitled to priority. If the petition is approved by the judge as properly filed under section 74, the clerk shall file a certified copy of the order of approval with the probate court, and from the date of such order until the case is dismissed the district court shall exercise exclusive jurisdiction over the property required to be listed in the inventory as above provided. 6. Upon the approval of a personal representative’s petition the case shall be referred to a referee and proceeded with as in all other cases under section 74 and this general order, except that (a) the original and any amended or supplementary inventory filed by the petitioner with the approval of the probate court shall be deemed to be correct, and no inventory shall be made by the custodian or receiver; (b) all claims allowed by the probate court, and only such claims, shall be allowed by the referee; (c) AMENDMENTS OF BANKRUPTCY RULES. 701 the petitioner shall file with the application for confirmation a completed list of the claims allowed up to the date of the application, certified as correct by the probate court; and (d) the clerk shall file with the probate court certified copies of all orders of the referee or judge confirming or denying the proposal, dismissing the proceedings before or after confirmation, or directing liquidation of the estate. L 1. Upon the expiration of the term of office of a conciliation commissioner, the judge may reappoint him or appoint other or additional conciliation commissioners. 5. The money to be paid upon the confirmation of a composition shall be placed in a depository to be designated by order of the judge, subject to withdrawal by the depositor upon the countersignature of the conciliation commissioner. The judge shall furnish a copy of this general order to the depositories and also the name of any conciliation commissioner whose countersignature is authorized. 6. Application for confirmation shall be filed with the conciliation commissioner who shall forthwith transmit it to the judge with (a) the acceptances, (b) the proofs of claims which have been allowed and those which have been disallowed, (c) a list of the debts having priority, (d) a list of the secured debts, with a description of the security of each, (e) the final inventory, with a list of the exemptions, and (f) a report of the commissioner recommending or opposing confirmation and, in the case of an extension, stating to what extent, if any, it would be desirable for the court after confirmation to retain jurisdiction of the farmer and his property. 12. The twenty-five dollar fees of the conciliation commissioner, and the fees and expenses of the supervisory conciliation commissioner, shall be payable out of appropriated funds in accordance with such instructions as may be issued from time to time by the Attorney General. 702 AMENDMENTS OF BANKRUPTCY RULES. It is further ordered that Forms Nos. 65, 72, 73 and 74 of the Forms in Bankruptcy be, and they hereby are, amended and that Form No. 76 be, and it hereby is, approved. The forms to read respectively as follows: Form No. 65 DEBTOR’S PETITION IN PROCEEDINGS UNDEB SECTION 75 OF THE BANKRUPTCY ACT To the Honorable........................... Judge of the District Court of the United States for the........................ District of.......................: The petition of.................., of....................., in the county of........................., and district and State of .................., respectfully represents: That he is primarily bona fide personally engaged in producing products of the soil [or that he is primarily bona fide personally engaged in dairy farming, the production of poultry or livestock, or the production of poultry products or livestock products in their unmanufactured state, or the principal part of whose income is derived from any one or more of the foregoing operations] as follows: ...................................................... .......... • • ................................................ 9 that such operations occur in the county [or counties] of..... ...................................., within said judicial district; that he is insolvent [or unable to meet his debts as they mature]; and that he desires to effect a composition or extension of time to pay his debts under section 75 of the Bankruptcy Act.- That the schedule hereto annexed, marked “A”, and verified by your petitioner’s oath, contains a full and true statement of all his debts, and (so far as it is possible to ascertain) the names and places of residence of his creditors, and such further statements concerning said debts as are required by the provisions of said Act. That the schedule hereto annexed, marked “B”, and verified by your petitioner’s oath, contains an accurate inventory of all his property, both real and personal, and such further statements concerning said property as are required by the provisions of said Act. Wherefore your petitioner prays that his petition may be approved. by the court and proceedings had in accordance with the provisions of said section. .............................., Attorney. AMENDMENTS OF BANKRUPTCY RULES. 703 United States of America, District of.............., ss: I,............................, the petitioning debtor mentioned and described in the foregoing petition, do hereby make solemn oath that the statements contained therein are true according to the best of my knowledge, information, and belief. Petitioner. Subscribed and sworn to before me this ................• day of ........................, A. D. 19... .................................. i [Official character.'] Form No. 72 APPLICATION FOR CONFIRMATION OF A COMPOSITION OR EXTENSION PROPOSAL UNDER SEIOTION 74 In the District Court of the United States for the............. District of......................... In the Matter of ....................>In Proceedings for a Composition or Extension Debtor To the Honorable........................, Referee in Bankruptcy of the District Court of the United States for the.............. District of..........................: At ..................., in said district, on the ......... day of............. ., A. D. 19.., now comes......................., the above-named debtor, and respectfully represents to the court that, after he had filed in court a schedule of his property and a list of his creditors, as required by law, he offered a proposal for a composition or an extension to his creditors, which proposal has been accepted in writing by a majority in number of all creditors whose claims have been allowed, including secured creditors whose claims are to be affected by the proposal, which number represents a majority in amount of such claims [or and after the first meeting of the creditors, he offered a proposal for an extension to his creditors, which proposal has not been accepted by a majority in number of all creditors whose claims are affected by the proposal, which number represents a majority in amount of such claims, but which proposal includes a feasible method of financial rehabilitation of the above-named debtor and is for the best interest of all the creditors, and includes an equitable liquidation for the secured creditors whose claims are affected]; that the consideration to be paid to the cred- 704 AMENDMENTS OF BANKRUPTCY RULES. itors, the money necessary to pay all debts which have priority, and the costs of the proceedings, amounting in all to the sum of ............ dollars, have been deposited, subject to the order of the court, in the ............Bank, of............, a designated depository. Wherefore the said ......................... respectfully asks that the said proposal be confirmed by the court. ....................................j Debtor. Form No. 73 ORDER CONFIRMING A COMPOSITION OB EXTENSION PROPOSAL UNDER SECTION 74 In the District Court of the United States for the............. District of.................. In the Matter of ...................I In Proceedings for a Composition or Extension Debtor An application for the confirmation of the proposal offered by the debtor under section 74 of the Bankruptcy Act having been filed in court, and it appearing that the proposal has been accepted by a majority in number of creditors whose claims have been allowed, including secured creditors whose claims are to be affected by the proposal, which number represents a majority in amount of such claims; [or and it appearing that the debtor, having failed to obtain the acceptance of a majority of all creditors whose claims are affected by the proposal, submitted the said proposal for an extension after the first meeting of the creditors;] and the consideration and the money required by law to be deposited, having been deposited as ordered, in such place as was designated by the said court, and subject to itsi order; and it also appearing that the proposal includes an equitable and feasible method of liquidation for secured creditors whose claims are affected and of financial rehabilitation for the debtor; that it is for the best interests of all creditors; that the debtor has not been guilty of any of the acts or failed to perform any of the duties which would be a ground for denying his discharge; and that the offer and its acceptance are in good faith and have not been made or procured by any means, promises, or acts contrary AMENDMENTS OF BANKRUPTCY RULES. 705 to the acts of Congress relating to bankruptcy: It is therefore hereby ordered that the said proposal be, and it hereby is, confirmed. Witness my hand, this ................. day of............, A. D. 19... ...................................) Referee in Bankruptcy. Form No. 74 ORDER CONFIRMING A COMPOSITION OBI EXTENSION PROPOSAL UNDER SECTION 75 In the District Court of the United States for the............ District of........................ In the Matter of ................... In Proceedings for a Composition or Extension Debtor An application for the confirmation of the proposal offered by the debtor under section 75 of the Bankruptcy Act having been filed in court, and it appearing that the proposal has been accepted by a majority in number of creditors whose claims have been allowed, including secured creditors whose claims are to be affected by the proposal, which number represents a majority in amount of such claims; and it also appearing that the proposal includes an equitable and feasible method of liquidation for secured creditors whose claims are affected and of financial rehabilitation for the debtor; that it is for the best interests of all creditors; and that the offer and its acceptance are in good faith and have not been made or procured by any means, promises, or acts contrary to the acts of Congress relating to bankruptcy: It is therefore hereby ordered that the said proposal be, and it hereby is, confirmed. Witness the Honorable................................., judge of said court, and the seal thereof, this.day of............., A. D. 19... Clerk. [Seal of the court] 65773*—36---45 706 AMENDMENTS OF BANKRUPTCY RULES. Form No. 76 APPLICATION FOB CONFIRMATION of A COMPOSITION OB EXTENSION PROPOSAL UNDER SECTION 75 In the District Court of the United States for the.......... District of................... In the Matter of ................... In Proceedings for a Composition or Extension Debtor To the Honorable........................., Judge of the District Court of the United States for the........................ District of....................: At......................, in said district, on the......day of.............., A. D. 19.., now comes ...................., the above-named debtor, and respectfully represents to the court that, after he had filed in court a schedule of his property and a fist of his creditors, as required by law, he offered a proposal for a composition or an extension to his creditors, which proposal has been accepted in writing by a majority in number of all creditors whose claims have been allowed, including secured creditors whose claims are to be affected by the proposal, which number represents a majority in amount of such claims. Wherefore the said ........................ respectfully asks that the said proposal be confirmed by the court. Debtor. It is further ordered that Form No. 75 of the Forms in Bankruptcy entitled “Petition of farmers for the appointment of a Conciliation Commissioner” be, and it hereby is, abrogated and annulled. June 1, 1936. STATEMENT SHOWING CASES ON DOCKETS, CASES DISPOSED OF, AND CASES REMAINING ON DOCKETS FOR THE OCTOBER TERMS 1933, 1934, AND 1935 ORIGINAL APPELLATE TOTALS Terms__________ 1933 1934 1935 1933 1934 1935 1933 1934 1935 Total cases on dockets Cases disposed of during terms. _ Cases remaining on dockets 19 4 18 5 16 4 1,113 1,025 1,022 926 1,076 986 1,132 1,029 1,040 931 1,092 990 15 13 12 88 96 90 103 109 102 TERMS 1933 1934 1935 Distribution of ca Original cases Appellate cas Petitions for Cases remaining o Original cases Appellate cas Petitions for ses disposed of during terms: 4 293 732 15 43 45 5 256 670 13 51 45 4 269 717 12 56 34 es on merits eertiorari n dockets: es on merits certiorari 707 INDEX ABANDONMENT. See Interstate Commerce Acts, 10-12; Jurisdiction, I, 4; HI, 18. ACCOUNTING. Accounting to patent owner for profits from infringement. Duplate Corp. v. Triplex Co., 448. ACCOUNTS RECEIVABLE. Situs for taxation. Wheeling Steel Corp. n. Fox, 193. ADMINISTRATIVE LAW. See Constitutional Law, IV, 2-9; V, (B), 5; Interstate Commerce Acts, 5-6, 13-20; Statutes, 8-9. 1. Function of Interstate Commerce Commission in prescribing divisions of joint rates; validity and review of orders. B. & 0. R. Co. v. U. S., 349. 2. Proceedings under Packers & Stockyards Act; function of District Court. Acker v. U. S., 426. 3. Administrative Regulations under revenue acts; validity. Koshland v. Helvering, 441. ADMIRALTY. See Immigration Acts. 1. Master is special agent of owner. Compagnie Generate v. Elting, 217. 2. Negligence. Personal Injury or Death of Seaman. Remedy afforded by jury trial construed liberally in accordance with preexistent maritime law. The Arizona v. Anelich, 110; Beadle v. Spencer, 124. 3. Id. Assumption of Risk not a defense to suit for injury or death caused by defective appliance furnished seaman. The Arizona v. Anelich, 110; Beadle v. Spencer, 124. 4. Id. Rule applies to coasting vessel in port at time of accident. Beadle v. Spencer, 124. 5. Contributory Negligence not a defense under the Merchant Marine Act or maritime law; is ground only for apportionment of the damages. Id. 6. General Average. Claim against United States for general average contribution. U. S. v. Atlantic Ins. Co., 483. 709 710 INDEX. AGENTS. See Admiralty, 1. ALABAMA. See Statutes, 12. ALIENS. See Immigration Acts. AMENDMENTS. See Judgments, 4. AMOUNT IN CONTROVERSY. See Jurisdiction, III, 2-5. ANTITRUST ACTS. See Clayton Act. ARIZONA. See Jurisdiction, II, 1. ASSESSMENT. See Constitutional Law, V, (B), 5. ASSIGNMENT OF ERROR. See Jurisdiction, II, 19-20. ASSUMPTION OF RISK. See Admiralty, 3-4. ATTORNEYS FEES. See Pensions, 1-2. AUTOMOBILES. 1. Licenses. Fee for privilege of transporting motor vehicles interstate on own wheels over highways of State for purpose of sale, sustained. Morf v. Bingaman, 407. 2. Id. Flat fee not unreasonable in amount, rather than fee based on mileage, not forbidden. Id. 3. Id. Fee not invalid because not devoted directly to highway maintenance. Id. BANK DEPOSITS. Situs for taxation. Wheeling Steel Corp. v. Fox, 193. BANKRUPTCY. For Amendments of Bankruptcy Rules, see p. 695. 1. Powers of Congress. Act of May 24, 1934, permitting political subdivision of State to avail of Bankruptcy Act, invalid. Ashton v. Cameron County, 513. 2. Railroad Reorganization Proceedings. Right of bank to set off deposit owing railroad against railroad bonds owned by bank. Lowden n. Northwestern Bank, 160. BANKS. See Constitutional Law, III, 3. Right of set-off. See Bankruptcy, 2. BITUMINOUS COAL CONSERVATION ACT. Unconstitutional in provisions regulating labor and these inseparable from others regulating prices. Carter v. Carter Coal Co., 238. BOILER INSPECTION ACT. See Employers’ Liability Act, 2. INDEX. 711 BONDS. See Bankruptcy, 2; Public Moneys. Liability on surety bonds; priority of United States under R. S. § 3466. U. S. v. Knott, 544. BOUNDARIES. Appointment of special master to mark boundary. Vermont v. New Hampshire, 642. BROKERS. See Commission Merchants, 1-2; Grain Futures Act, BURDEN OF PROOF. Of Jurisdictional Amount. See Jurisdiction, III, 3. CALIFORNIA. See Jurisdiction, II, 1; Safety Appliance Acts, 3. CARRIERS. See Interstate Commerce Acts. CERTIFIED QUESTION. See Jurisdiction, II, 8. CLAIMS. 1. Claim Against United States for general average contribution. U. S. v. Atlantic Ins. Co., 483. 2. Id. When claim accrues. Id. 3. Id. Effect of fact that damages sought are unliquidated. Id. 4. Id. Six year limitation. Id. CLASSIFICATION. See Constitutional Law, V, (C), 1-3. CLAYTON ACT.* 1. Tying Clause in lease of patented machine violates § 2. International Machines Corp. v. U. S., 131. 2. Id. Prohibition applies to patented supplies. Id. 3. Id. Protection of good will of lessor’s customers in case of patented tabulating machines requiring particular kind of cards for successful operation. Id. 4. Id. Tendency to monopoly. Id. CLERKS OF COURT. See Criminal Law, 5. COAL. See Bituminous Coal Conservation Act; Constitutional Law, I, 5; II, 2, 4. COLLATERAL ATTACK. See Judgments, 1. COLLECTIVE BARGAINING. See Constitutional Law, II, 4. COLORADO. See Waters, 2. COMBINATIONS. See Patents for Inventions, 2. COMMERCE. See Constitutional Law, II, 1-11. 712 INDEX. COMMISSION MERCHANTS. See Packers & Stockyards Act. 1. License, Bond, etc., for protection of consignors. Hartford Co. v. Illinois, 155. 2. Id. Illinois regulations held consistent with federal statute. Id. COMMITMENT. See Criminal Law, 4-5. COMMODITIES CLAUSE. See Interstate Commerce Acts, 4. COMMON CARRIER. See Interstate Commerce Acts. CONDEMNATION. See Eminent Domain, 1-2. CONFISCATION. See Constitutional Law, IV, 6-10; Evidence, 6; Interstate Commerce Acts, 6, 9, 15-16. CONSTITUTIONAL LAW. See Eminent Domain, 1-2. I. Miscellaneous, p. 712. II. Commerce Clause, p. 713. III. Contract Clause, p. 714. IV. Fifth Amendment, p. 714. V. Fourteenth Amendment. (A) In General, p. 715. (B) Due Process Clause, p. 715. (C) Equal Protection Clause, p. 715. I. Miscellaneous. 1. Arbitrary Power. No room for, under Constitution. Legitimate end necessary to justify means. Jones n. Securities Comm’n, 1. 2. Investigations. Investigations must be based on specific and authorized grounds, and the person interrogated about his private affairs has a right to know why the inquiry is made. Id. 3. Testimony. Compulsion of. Id. 4. General Welfare. No general power in Congress to protect. Carter v. Carter Coal Co., 238. 5. Wages and Working Conditions in production of coal not subject to regulation by Congress. Id. 6. Constitutionality of Ends not subject of legislative discretion. Id. 7. Difference Between Ends and Means. Id. 8. Supremacy of State Power, and lack of inherent power in Federal Government, in internal affairs of States. Carter v. Carter Coal Co., 238; Ashton v. Cameron County, 513. 9. Id. Abdication of State Power. Id. 10. Id. Neither consent nor submission by States can enlarge powers of Congress. Ashton v. Cameron County, 513. INDEX. 713 CONSTITUTIONAL LAW—Continued. 11. Immunity of Federal Government from state taxation. Graves v. Texas Co., 393. 12. Id. State tax on sale (or on storing and withdrawal—essential to sale) of gasoline to the United States, invalid. Id. 13. Judiciary. Duty to enforce Constitution. Carter v. Carter Coal Co., 238. 14. Opinion of Lawmakers on constitutionality given weight. Id. 15. Beneficence of Statute not evidence of validity. Id. 16. Separability of Statute, when part is bad. Id. 17. Legislative Declaration of Separability. Where ineffective. Id. 18. Bankruptcy Powers. Limitation. Act of May 24, 1934, permitting political subdivisions of State to avail of Bankruptcy Act, invalid. Ashton v. Cameron County, 513. 19. Party Attacking Statute must show injury to himself. Pre-mier-Pabst Co. v. Grosscup, 226. II. Commerce Clause. 1. Commerce Defined. Carter v. Carter Coal Co., 238. 2. Production of Coal to be subsequently shipped interstate, not commerce. Id. 3. Direct Effect on commerce means proximate effect. Id. 4. Id. Effect on interstate commerce in coal of struggles between miners and mine-owners over wages, working conditions, hours, collective bargaining, etc., is indirect. Id. 5. Distinction Between Direct and Indirect Effect, independent of magnitude of effect or its cause. Id.; see also, Atlantic Lumber Co. v. Commissioner, 553. 6. Id. Want of power in federal government to regulate wages in industry is the same whether the activity regulated precedes interstate commerce in the things produced or follows it. Carter v. Carter Coal Co., 238. 7. Motor Vehicles. Transportation. License. Fee for privilege of transporting motor vehicles on own wheels over highways of State for purpose of sale, though movement interstate, valid. Morf v. Bingaman, 407. 8. Id. Flat fee not unreasonable in amount, rather than fee based on mileage, not forbidden. Id. 9. Id. Fee not invalid because not devoted directly to high-way maintenance. Id. 714 INDEX. CONSTITUTIONAL LAW—Continued. 10. Foreign Corporations. Massachusetts tax on foreign corporation for privilege of doing business in State did not impose unconstitutional burden on interstate commerce. Atlantic Lumber Co. v. Commissioner, 553. 11. Commission Merchants subject to state regulation not in conflict with federal law for protection of consignors of produce from other States. Hartford Co. v. Illinois, 155. III. Contract Clause. 1. Bankruptcy Laws. State may not impair obligations of contracts indirectly by sanctioning extension of federal bankruptcy power to municipalities. Ashton v. Cameron County, 513. 2. Employer and Employee. Wage Laws. New York minimum wage law for women (Laws 1933, c. 584), as construed by state court, invalid. Morehead v. New York, 587. 3. Statutory Release of Surety of bank or public official unassailable by taxpayer having no vested interest in the public funds secured. Schenebeck v. McCrary, 36. IV. Fifth Amendment. 1. Analogy of due process clause of Fourteenth Amendment to that of Fifth Amendment. Morehead v. New York, 587. 2. Administrative Rate Fixing. Legislative and judicial functions of administrative body. St. Joseph Co. v. U. S., 38; Morgan v. U. S., 468. 3. Due Process in administrative proceeding. Id. 4. Full Hearing required. Morgan v. U. S., 468. 5. Id. Order made under Packers & Stockyards Act by Secretary, when evidence and argument were heard and considered not by him but by an assistant, invalid. Id. 6. Confiscatory Rates. Duty and function of courts in correcting. St. Joseph Co. v. U. S., 38; Morgan v. U. S., 468; B. & 0. R. Co. v. U. S., 349. 7. Id. Findings of administrative body not conclusive. St. Joseph Co. v. U. S., 38; B. & 0. R. Co. v. U. S., 349. 8. Id. Evidence before administrative body may be supplemented in court review. Id. 9. Right to Judicial Determination of adequacy of return. B. & 0. R. Co. v. U. S., 349. 10. Eminent Domain. Just Compensation. McCandless v. U. S., 342. INDEX. 715 CONSTITUTIONAL LAW—Continued. V. Fourteenth Amendment. (A) In General. 1. Challenging Statute. One within class properly taxed cannot complain that taxed class might have been more aptly defined or that others, not of that class, were taxed improperly. Morf v. Bingaman, 407. 2. Id. Party attacking statute must show injury to himself. Premier-Pabst Co. v. Grosscup, 226. (B) Due Process Clause. 1. Analogy of due process clause of Fourteenth Amendment to that of Fifth Amendment. Morehead n. New York, 587. 2. Employer and Employee. Wages. New York minimum wage law for women (Laws 1933, c. 584), as construed by state court, invalid. Id. 3. Motor Vehicles. Privilege Tax. Fee for privilege of transporting motor vehicles on own wheels over highways of State for purpose of sale, valid. Morf v. Bingaman, 407. 4. Taxation of Foreign Corporation. Intangibles such as bank deposits and accounts receivable in other States are taxable by the State in which the corporation has established its business situs or commercial domicile. Wheeling Steel Corp. v. Fox, 193. 5. Delegation of Power. No unconstitutional delegation of authority is involved in the West Virginia statute requiring state tax officials to fix assessment by applying the law to the facts. Id. 6. Intoxicating Liquor. License to sell may be revoked by State. Premier-Pabst Co. v. Grosscup, 226. (C) Equal Protection Clause. 1. Classification for Taxation. Morf v. Bingaman, 407. 2. Taxation of Intangible Property of foreign corporation under West Virginia law consistent with equal protection. Wheeling Steel Corp. v. Fox, 193. 3. Highways. Motor Vehicles. Fee for privilege of transporting motor vehicles on own wheels over highways of State for purpose of sale, valid as applied to one moving cars in caravans. Morf n. Bingaman, 407. CONTRACT MARKETS. See Grain Futures Act. CONTRACTS. See Constitutional Law, III, 1-3; V, (B), 2. CONTRIBUTORY NEGLIGENCE. See Admiralty, 5. CONVICTS. See Criminal Law, 1. 716 INDEX. CORPORATIONS. See Constitutional Law, II, 10; V, (B), 4-5; V, (C), 2; Interstate Commerce Acts, 4. Stockholders’ Suit. See Injunction, 3. Tax on Intangible Property. See Taxation, III, 3. COUNTERCLAIM. See Bankruptcy, 2. COURT OF CLAIMS. See Claims, 1-4; Jurisdiction, IV. CRIMINAL LAW. 1. Self Defense. Killing of guard by convict not felonious in Virginia if done in self defense. Hart v. Virginia, 34. 2. Sentence. Fines. Imprisonment. Direction that defendant be imprisoned until fine is paid must be expressed in sentence. Hill v. U. S. ex rel. Wampler, 460. 3. Id. Only sentence known to the law-is the sentence or judgment entered on the records of the court. Id. 4. Id. Commitment. A commitment departing in matter of substance from the judgment back of it is void and its nullity may be established on habeas corpus. Id. 5. Id. Addition to sentence of fine and imprisonment, by clerk in preparing commitment, directing imprisonment until fine is paid, could n’ot be justified by usage or by unrecorded instructions from judge to clerk. Id. DAMAGES. See Claims, 3. Apportionment of in negligence cases. See Admiralty, 5. Infringement of Patent. Measure of Liability. Damages and Profits. Deductions from profits; cost of labor and material wasted without fault in manufacturing process; losses from return of defective merchandise; cost of materials sold by one infringer to another; savings effected by use of infringer’s own patents; comparison of average cost with specific prices; interest on damages. Duplate Corp. v. Triplex Co., 448. DEBTS. See United States, 2, 4. DECREE. See Judgments, 1-4; Waters, 2. DELEGATION OF POWER. See Constitutional Law, V, (B), 5 DEPOSIT. See Bankruptcy, 2; Jurisdiction, V. DISCRETION. Abuse of. See Injunction. DISMISSAL. See Jurisdiction, I, 4. DIVIDENDS. See Taxation, II, 1-2. DIVISIONS. See Interstate Commerce Acts, 5-9, 13-17. DOMICILE. See Constitutional Law, V, (B), 4. INDEX. 717 DUE PROCESS. See Constitutional Law, IV, 1-9; V, (B), 1-6. EMINENT DOMAIN. 1. As to just compensation in prescribing divisions of joint rates of carriers, see B. & 0. R. Co. v. U. S., 349. 2. Just Compensation. Lands. Market Value. Materiality of evidence as to value of lands when used for a purpose to which they probably could be put, though in connection with other lands. McCandless v. U. S., 342. EMPLOYER AND EMPLOYEE. See Constitutional Law, I, 5; III, 2; V, (B), 2. EMPLOYERS’ LIABILITY ACT. 1. Evidence of injuries, reviewable by this Court. Chicago G. W. R. Co. v. Rambo, 99. 2. Id. Boiler Inspection Act. Headlights, evidence as to sufficiency of. Id. EQUAL PROTECTION. See Constitutional Law, V, (C), 1-3. EQUITY. See Injunction; Jurisdiction. ERROR. Prejudicial Error in exclusion of evidence. McCandless v. U. S., 342. ESTOPPEL. See Packers & Stockyards Act, 8. EVIDENCE. See Constitutional Law, I, 3; IV, 5, 8; Employers’ Liability Act, 1-2; Jurisdiction, I, 7; II, 21; III, 11, 14; Packers & Stockyards Act, 4. 1. Market Value of lands in condemnation case. McCandless v. U. S., 342. 2. Id. Most profitable use to which lands could be put in connection with other lands, as material. Id. 3. Id. Sufficiency of offer of evidence. Id. 4. Patents. Finding of Circuit Court of Appeals that accused grease gun lacked the only novel feature of the Gullborg patented combination and did not infringe, sustained. Bassick Co. v. Hollingshead Co., 415. 5. Erroneous Exclusion of material evidence, prejudicial error requiring reversal; effect of Jqd. Code, § 269, relating to harmless error. McCandless v. U. S., 342. 6. Sufficiency of Evidence of confiscatory rates. B. & 0. R. Co. v. U. S., 349. 718 INDEX. FEDERAL INSTRUMENTALITY. See Constitutional Law, I, 11-12. FELONY. See Criminal Law, 1. FINDINGS. See Constitutional Law, IV, 7; Interstate Commerce Acts, 13-16; Jurisdiction, I, 6, 10; III, 11, 17; Packers & Stock-yards Act, 10. FINES. See Criminal Law, 2, 5. FOREIGN CORPORATIONS. See Constitutional Law, II, 10; V, (B), A-5; V, (C), 2; Taxation, III, 2-3. GASOLINE. See Constitutional Law, I, 12; Taxation, III, 1. GENERAL AVERAGE. 1. Contribution. Claim against United States; when right accrues. U. S. v. Atlantic Ins. Co., 483. 2. Id. Unliquidated damages. Id. 3. Function of Adjuster. Id. GENERAL WELFARE. See Constitutional Law, I, 4. GOOD WILL. See Clayton Act, 3. GRAIN EXCHANGES. See Grain Futures Act. GRAIN FUTURES ACT. Suspension from Trading under § 6 (b) cannot be imposed as penalty for past misconduct. Wallace n. Cutten, 229. GREASE GUNS. See Bassick Co. v. Hollingshead Co., 415. GUARDIANS. See Pensions, 1-2. HABEAS CORPUS. 1. Nullity of Commitment varying in substance from sentence may be established on habeas corpus. Hill v. U. S. ex rel. Wampler, 460. 2. Order of court refusing to strike from commitment direction added by clerk that imprisonment continue until fine paid, was not res judicata upon habeas corpus to test legality of continued confinement after term specified in sentence had expired. Id. HARMLESS ERROR. See Evidence, 5. HEADLIGHTS. See Employers’ Liability Act, 2. HEARING. See Constitutional Law, IV, 4-5; Packers & Stock-yards Act, 3-4. HIGHWAYS. See Automobiles; Constitutional Law, II, 7-9; V, (B), 3; V, (C), 3. INDEX. 719 HOLDING COMPANIES. See Interstate Commerce Acts, 4. HOMICIDE. See Criminal Law, 1. HOURS OF LABOR. See Constitutional Law, II, 4. IMMIGRATION ACTS. Alien Seamen. Notice to detain on board, served by immigration officer on master, not binding on owner of ship. Compagnie Generale v. Elting, 217. IMPRISONMENT. See Criminal Law, 2, 4-5. INCOME TAX. See Taxation, II, 1-2. INFRINGEMENT. See Patents for Inventions, 3-4. INJUNCTION. See Jurisdiction, II, 10; III, 9, 13, 16. 1. After notice, defendant acts at his peril. Jones v. Securities Comm’n, 1. 2. Power of the court to restore the status quo. Id. 3. Stockholders’ suit to enjoin corporation from complying with unconstitutional Act. Carter v. Carter Coal Co., 238. 4. Irreparable Injury. Suit to enjoin need not await actual infliction. Id. 5. Taxes. Injunction to restrain collection of state tax, where no plain, adequate and complete remedy at law available. Graves v. Texas Co., 393. 6. On appeal from grant or denial of interlocutory injunction, inquiry is limited to question whether court abused its discretion. U. S. v. Corrick, 435. INSOLVENCY. See Constitutional Law, I, 18; III, 1. Surety company in hands of statutory liquidator by court order on own petition, as “insolvent” within meaning of R. S. § 3466, giving priority to debts due United States. U. S. v. Knott, 544. INTANGIBLE PROPERTY. See Taxation, III, 3. INTEREST. See Damages. INTERSTATE COMMERCE. See Constitutional Law, II, 1-11; Interstate Commerce Acts. INTERSTATE COMMERCE ACTS. 1. Common Carriers only are regulated by Interstate Commerce Act. Pennsylvania R. Co. v. Public Utilities Comm’n, 170. 2. Beginning of Transportation when goods have been placed in possession of common carrier. Id. 720 INDEX. INTERSTATE COMMERCE ACTS—Continued 3. Carriage by Owners. Private facilities not part of interstate movement subject to Act. Id. 4. Commodities Clause. Holding Company. Mere fact that railroad and manufacturing corporations were owned by holding company did not make transportation of products of one by the other unlawful. U. S. v. Elgin Ry., 492. 5. Divisions of Joint Rates. Proceedings to determine and prescribe divisions; function of Commission is legislative. B. & 0. R. Co. v. U. S., 349. 6. Id. Remedy of carrier whose share of joint rate proves noncompensatory. Id. 7. Id. Validity of order sustaining divisions based in part on financial needs of carriers. Id. 8. Id. Consideration of return from all service of carrier as well as that covered by divisions under investigation. Id. 9. Id. Evidence held insufficient to prove divisions of joint rate confiscatory. Id. 10. Abandonment of Trackage. Orders of Commission. U. 8. n. Idaho, 105. 11. Id. Suit to annul order. Id. 12. Id. Whether track is a “spur” is a mixed question of law and fact. Id. 13. Findings. Power of Commission in prescribing divisions is conditioned on findings and hearing. B. & 0. R. Co. v. U. 8., 349. 14. Id. Conclusiveness of findings. Id. 15. Id. Finding of Commission on question whether divisions constituted just compensation within meaning of Fifth Amendment could not constitutionally be made conclusive. Id. 16. Id. Findings could not be construed as addressed to issue of confiscation when that question was not raised in application of carriers. Id. 17. Orders. Though negative in form, order denying relief to carrier complaining of unjust divisions was in effect affirmative. Id. 18. Id. Divided Commission. Report and order to which some members dissent has same legal effect as if supported by all. Id. 19. Id. Judicial review. Id. 20. Petition for Rehearing. Effect of denial when petition for first time raised issue of confiscation. Id. INDEX. 721 INTOXICATING LIQUOR. Revocation of License. See Premier-Pabst Co. v. Grosscup, 226. INVENTION. See Patents for Inventions. INVESTIGATIONS. See Constitutional Law, I, 2-3. JOINT RATES. See Interstate Commerce Acts, 5-9, 13-16. JONES ACT. See Admiralty, 2, 5. JUDGMENTS. See Criminal Law, 2-5; Interstate Commerce Acts, 18. 1. Attacking Judgment. Sentence entered inaccurately may be corrected in direct proceeding; but is not open to collateral attack. Hill v. U. S. ex rel. Wampler, 460. 2. Res Judicata. Order of court refusing to strike from commitment direction added by clerk that imprisonment continue until fine was paid, was not res judicata on habeas corpus to test legality of continued confinement after term specified in sentence had expired. Id. 3. Modification of Judgment. Substituting direction for judgment of dismissal on merits in place of direction for a new trial. National City Bank v. Oelbermann, 638. 4. Effect of extending term to allow amendment. Zimmem v. United States, 167. JUDICIARY. See Constitutional Law, I, 13. JURISDICTION. See Constitutional Law, I, 13-19. I. In General, p. 722. II. Jurisdiction of this Court, p. 722. III. Jurisdiction of District Courts, p. 724. IV. Jurisdiction of Court of Claims, p. 725. V. Jurisdiction of State Courts, p. 725. References to particular subjects under title Jurisdiction: Amendment of Decree, I, 8; Appeal, I, 8; II, 6-7, 9-10; Assignments of Error, II, 20; Certified Questions, II, 8; Certiorari, II, II, 19; Consent, II, 1, 4; III, 1; Court of Claims, IV; Dismissal, I, 4; Employers’ Liability Act, II, 21; Evidence, I, 7; II, 21; III, 14; Federal Question, II, 14—16; Finality of Judgment, II, 12-13; Findings, I, 6, 10; III, 11, 17; Injunction, I, 2-3, 9; II, 10, 22; III, 9, 13; Interstate Commerce Commission, III, 12-17; Judgment, 1,12; Jurisdictional Amount, III, 2-5; Mandate, II, 24; Packers & Stockyards Act, I, 10; II, 23; III, 6-11; Parties, I, 1; 65773°—36---46 722 INDEX. JURISDICTION—Continued. II, 1, 4; III, 1; Prejudicial Error, I, 12; Priority, V; Rehearing, II, 27; Scope of Review, I, 9—10; II, 19—22; Securities & Exchange Act, III, 18; States, II, 1-2; State Statutes, I, 11; II, 17-18; Stay, II, 25; Subpoena, III, 18; Taxes, I, 2; Three-Judge Court, II, 9; III, 16; Trial De Novo, III, 7; United States, II, 1-3; V; Waiver, I, 1; III, 1. I. In General. 1. Want of Jurisdiction. Cannot be waived by parties. U. S. v. Corrick, 435. 2. Injunction to restrain collection of state tax, where no plain, adequate and complete remedy at law available. Graves v. Texas Co., 393. 3. Injunction. Power of courts to restore the status quo. Jones v. Securities Comm’n, 1. 4. Dismissal. Unqualified right of plaintiff, in absence of rule of court, if defendant will not be prejudiced. Id. 5. Confiscatory Rates. Duty of courts to reexamine. St. Joseph Co. n. U. S., 38. 6. Id. Legislative declarations and findings not binding. Id. 7. Id. New Evidence. District Court not confined to evidence used by rate-making body. Id. 8. Time for Appeal. Extended by extension of term to amend decree. Zimmem v. U. S., 167. 9. Scope of Review.' Injunction. On appeal from grant or denial of interlocutory injunction, inquiry is limited to question whether court abused its discretion. U. S. v. Corrick, 435. 10. Scope of Review under Packers & Stockyards Act; conclusiveness of findings of Secretary. Morgan v. U. S., 468; Acker v. U. S., 426. 11. State Statute. A construction of a state statute by the state courts resulting from their erroneous conception of federal statutes, is not binding on the federal courts. Tipton n. Atchison Ry., 141. 12. Judgment on Review. Prejudicial Error. Effect of Jud. Code, § 269, requiring judgment on review after examination of entire record without regard to technical errors, defects, or exceptions not affecting substantial rights of parties. McCandless v. U. S., 342. II. Jurisdiction of this Court. 1. Original Jurisdiction. Parties. Leave to file bill by State denied on ground that United States was indispensable party and had not consented to suit. Arizona v. California, 558. INDEX. 723 JURISDICTION—Continued. 2. Id. That a decree rendered in its absence cannot bind or affect the United States is no inducement to decide rights of States by decree which could have no finality. Id. 3. Id. Bill which, if filed, must be dismissed because of absence of United States as party, will not be entertained. Id. 4. Want of Jurisdiction. Consent of parties cannot give federal court jurisdiction. U. S. v. Corrick, 435. 5. Id. This Court will notice defect when record discloses want of jurisdiction in lower court, though parties make no contention concerning it. Id. 6. Id. This Court has jurisdiction on appeal to correct error of District Court in entertaining suit over which it had no jurisdiction. Id. 7. Id. Appeal dismissed for want of jurisdiction. P. J. Carlin Co. v. Heaney, 637; Parker v. James Granger, Inc., 644. 8. Certificate. Questions not answered if irrelevant, too general, or obscure. Lowden v. Northwestern Bank, 160. 9. Appeal from three-judge District Court. U. S. v. Idaho, 105. 10. Injunction pending appeal. Mountain States Co. v. Public Service Comm’n, 641. 11. Application for Certiorari dismissed as premature. Craig v. U. S., 637. 12. Finality of Judgment of state court. U. S. v. Knott, 544. 13. Id. Appeal dismissed for want of final judgment. Brown v. South Carolina, 639. 14. Federal Question. Appeal dismissed for want of properly presented substantial federal questions. Collins v. Streitz, 640; Montjoy v. Kentucky, 646. 15. Id. Dismissal for want of substantial federal question. Mozingo v. Marion Shovel Co., 645. 16. Id. Appeal dismissed on ground that appellants failed to show any interest entitling them to invoke protection of Federal Constitution. Miles v. Treasury, 640. 17. Construction of State Statute. State statute applied as construed by state court. Hart v. Virginia, 34. 18. Id. Construction by state court binding on this Court. Morehead v. New York, 587; U. S. v. Knott, 544. Sed vide Tipton v. Atchison Ry., 141. 19. Scope of Review. On certiorari Court confines itself to the ground upon which the writ was asked for and granted. Morehead v. New York, 587. 724 INDEX. JURISDICTION—Continued. 20. Id. This Court will not examine points not made in the complaint nor included in the assignments of error or the statement of points relied upon for reversal. Pennsylvania R. Co. v. Public Utilities Comm’n, 170. 21. Id. Employers9 Liability Act. Evidence as to injuries, reviewable by this Court. Chicago G. W. R. Co. v. Rambo, 99. 22. Scope of Review. On appeal from the granting or refusal of an interlocutory injunction, injury is limited to question whether court abused its discretion. U. S. v. Corrick, 435. 23. Appeal under Urgent Deficiencies Act from judgment in suit under Packers & Stockyards Act. Morgan v. U. S., 468. 24. Mandate recalled and amended. Prudence Co. v. Fidelity Co., 642. 25. Stay of running of penalties. Isbrandtsen-Moller Co. v. U. S., 644. 26. Retaining Jurisdiction. Wyoming v. Colorado, 573. 27. Rehearing. Extension of time for filing petition. Stone v. White, 646. III. Jurisdiction of District Courts. 1. By Consent. Lack of jurisdiction over subject matter cannot be waived by parties. U. S. v. Corrick, 435. 2. Jurisdictional Amount in suit attacking statute regulating business is not the value of the business, but the damage that would result from the regulation. McNutt v. General Motors Corp., 178; McNutt v. McHenry Co., 190. 3. Id. Plaintiffs must allege and prove jurisdictional amount. Id. Id. 4. Id. Duty of court to inquire on its own motion. Id. Id. 5. Id. Allegation of jurisdictional amount may be traversed by answer. Id. Id. 6. Jurisdiction Under Packers & Stockyards Act. Review of administrative action authorized by § 316 of Act. Morgan v. U. S., 468. 7. Id. Under § 316 District Court affords not trial de novo but review of administrative action. Acker v. U. S., 436. 8. Id. When function of District Court limited to questions raised upon record made before Secretary. Id. INDEX. 725 JURISDICTION—Continued. 9. Id. Bill by market agencies to enjoin prosecution for charging rates other than those fixed by Secretary under Packers & Stockyards Act was not bill to set aside or suspend order of Secretary and was not within jurisdiction of District Court. U. S. v. Carrick, 435. 10. Confiscatory Rates for stockyards; duty of court to inquire. St. Joseph Co. v. U. S., 38. 11. Id. Findings of administrative body not binding. Id. 12. Orders of Interstate Commerce Commission. U. S. v. Idaho, 105. 13. Id. Suit to enjoin order sustaining divisions of joint rates; claim of confiscation. B. & 0. R. Co. v. U. S., 349. 14. Id. Introduction of evidence not before the Commission. U. S. v. Idaho, 105; B. & 0. R. Co. v. U. S., 349. 15. Id. Parties. U. S. v. Idaho, 105. 16. Id. When suit should be before three-judge court with appeal to this Court. Id. 17. Findings of Commission not conclusive. Id. 18. Jurisdiction Under Securities & Exchange Act. Authority to enforce Commission’s subpoena ends with withdrawal of registration statement. Jones v. Securities Comm’n, 1. 19. Extension of Term for amendment of decree. Zimmern v. U. S., 167. IV. Jurisdiction of Court of Claims. Claim against United States for general average contribution. U. S. v. Atlantic Ins. Co., 483. V. Jurisdiction of State Courts. Jurisdiction of Florida court to award United States priority in proceeds of deposit made by foreign corporation with state treasurer, though general assets were being liquidated elsewhere. U. S. v. Knott, 544. JURISDICTIONAL AMOUNT. See Jurisdiction, III, 2-5. JUST COMPENSATION. See Eminent Domain, 1-2. LABOR. See Bituminous Coal Conservation Act; Constitutional Law, I, 5; II, 4, 6; III, 2; V, (B), 3; Minimum Wage Laws. LANDS. See Eminent Domain, 2; Evidence, 1-2; Packers & Stockyards Act, 9. 726 INDEX. LEASES. See Clayton Act, 1-4. LEGISLATION. Function of Interstate Commerce Commission in prescribing division of joint rates is legislative. B. & 0. R. Co. v. U. S., 349. LICENSES. See Automobiles; Constitutional Law, II, 7-11; V, (B), 3, 6; V, (C), 3. LIEN. See United States, 6. LIMITATIONS. 1. Claim against United States for general average contribution accrued more than six years before suit brought and was barred. U. S. v. Atlantic Ins. Co., 483. 2. Time for Appeal. Tolling of limitation by extension of time to amend decree. Zimmern v. U. S., 167. LUBRICATING APPARATUS. See Patents for Inventions, 1. MANDATE. See Jurisdiction, II, 24. MARITIME LAW. See Admiralty, 1-6. MARKET AGENCIES. See Packers & Stockyards Act, 1, 6, 11. MARKET VALUE. See Eminent Domain, 2; Evidence, 1-3. MASTER AND SERVANT. See Constitutional Law, I, 5; III, 2; V, (B), 2. MERCHANT MARINE ACT. See Admiralty. MINIMUM WAGE LAWS. New York minimum wage law for women (Laws 1933, c. 584), as construed by state court, invalid. Morehead v. New York, 587. MINING. See Bituminous Coal Conservation Act; Constitutional Law, I, 5; II, 2, 4. MONOPOLY. See Clayton Act, 4. MOTOR VEHICLES. See Constitutional Law, II, 7-9; V, (B), 3; V, (C), 3. MUNICIPAL CORPORATIONS. See Constitutional Law, I, 18. Water improvement district a political subdivision of State. Ashton v. Cameron County, 513. MURDER. See Criminal Law, 1. NEGLIGENCE. See Admiralty, 2-5; Employers’ Liability Act, 1-2. INDEX. 727 NEW MEXICO. See Statutes, 13. NEW TRIAL. Prejudicial Error in admission and exclusion of evidence. McCandless v. U. S., 342. OPINION. See Constitutional Law, I, 14; Interstate Commerce Acts, 18. PACKERS & STOCKYARDS ACT. 1. Stockyards Rates. Principles governing Secretary of Agriculture in fixing. St. Joseph Co. v. U. S., 38; Acker v. U. S., 426; Morgan v. U. S., 468. 2. Validity and regularity of proceedings before Secretary. Morgan v. U. S., 468. 3. Full Hearing as prerequisite to making of valid order. Id. 4. Id. Order made by Secretary invalid where evidence and arguments were heard and considered not by him but by Assistant Secretary. Id. 5. Rates prescribed by Secretary pursuant to § 310 become the only lawful rates and so remain until further order of Secretary. U. S. v. Corrick, 435. 6. Ascertaining reasonable unit cost as basis for uniform rate; allowance for salesmen’s salaries; fictitious salaries; cost of getting and maintaining business; test period; denial of rehearing. Acker v. U. S., 426. 7. Rehearing by Secretary. St. Joseph Co. v. U. S., 38. 8. Estoppel of Secretary from earlier proceeding. Id. 9. Land. Valuation of. Id. 10. Legislative Declarations and Findings do not conclude courts. Id. 11. Violations of Orders. Bill by market agencies to enjoin prosecutions for charging rates other than those fixed by Secretary was not bill to set aside or suspend order and was not within jurisdiction of District Court. U. S. v. Corrick, 435. 12. Review of Rate Order. St. Joseph Co. v. U. S., 38. 13. Id. Under § 316 District Court sits not to afford trial de novo but to review the administrative action. Acker v. U. S., 426. 14. Id. Where issue before Secretary was not confiscation, but reasonableness of charge for personal service, court was limited to questions raised upon record made before the Secretary. Id. 728 INDEX. PARTIES. See Interstate Commerce Acts, 11; Jurisdiction, II, 1-5; III, 1, 15. 1. United States was indispensable party and had not consented to be sued. Arizona v. California, 558. 2. Party Attacking Statute must show injury to himself. Pre-mier-Pabst Co. v. Grosscup, 226. 3. Dismissal by plaintiff, matter of right. Jones v. Securities Comm’n, 1. PATENTS FOR INVENTIONS. Use of tying clauses in leasing patented machines. See Clayton Act, 1-4. 1. Validity and scope of Gullborg Patent No. 1,307,734, for means of lubricating metal bearings. Bassvck Mjg. Co. n. Hollingshead Co., 415. 2. Combinations. Patentee cannot repatent old combination by reclaiming it with improved element substituted for old element. Id. 3. Infringement. Finding of Circuit Court of Appeals that accused device did not embody novel feature of patent and did not infringe, sustained. Id. 4. Id. Accounting. Measure of liability for damages and profits under decree for accounting by infringers. Duplate Corp. v. Triplex Co., 441. PENALTY. See Criminal Law, 2-5; Grain Futures Act. PENITENTIARY. See Criminal Law, 1. PENSIONS. 1. Attorneys Fees. State court has power to fix fees payable by guardian of incompetent veteran for services of attorney. Hines v. Stein, 94. 2. Id. Executive regulations do not control. Id. PERSONAL INJURIES. See Admiralty, 2-5; Employers’ Liability Act, 1-2; Safety Appliance Acts, 1-3. PLEADING. Pleading Jurisdictional Amount. See Jurisdiction, III, 3, 5. PRICE-FIXING. See Bituminous Coal Conservation Act; Minimum Wage Laws. PRIORITY. See United States, 2-8. PROFITS. See Damages; Patents for Inventions, 4. INDEX. 729 PROOF. See Evidence. PUBLIC MONEYS. Interest of taxpayer in. Schenebeck v. McCrary, 36. PUBLIC OFFICERS. See Constitutional Law, III, 3. RAILROADS. See Bankruptcy, 2; Interstate Commerce Acts. RATES. See Constitutional Law, I, 5-7; IV, 9-10, 13; Interstate Commerce Acts, 5-9, 13-17; Jurisdiction, I, 5-7; III, 9-14; Packers & Stockyards Act, 1, 5-6, 11-14. REAL ESTATE. See Eminent Domain, 2; Evidence, 2. RECEIVERS. See Insolvency. REGISTRATION. See Securities & Exchange Act, 1. REGULATIONS. See Pensions, 2; Statutes, 8. REHEARING. See Interstate Commerce Acts, 20; Jurisdiction, II, 27; Packers & Stockyards Act, 7. REORGANIZATION. See Bankruptcy, 2. REPEAL. See Statutes, 11. RES JUDICATA. See Habeas Corpus, 2; Judgments, 2. RETROACTIVE PENALTY. See Grain Futures Act. REVERSAL. See Evidence, 5. RULES. See Criminal Law, 5. Amendments of Bankruptcy Rules, p. 695. Amendments of Rules of Court, p. 693. SAFETY APPLIANCE ACTS. 1. Intrastate commerce included. Tipton v. Atchison Ry., 141. 2. Remedy for Breach. Dependent on state law. Id. 3. Id. Workmen’s compensation law is the remedy in California. Id. SALES. See Constitutional Law, I, 12; Taxation, III, 1. SEAMEN. See Admiralty, 2-5; Immigration Acts. SEARCHES AND SEIZURES. See Jones v. Securities Comm’n, 1. SECRETARY OF AGRICULTURE. See Packers & Stockyards Act, 1, 4—5, 7, 14. Performance of duties by assistant. Morgan v. U. S. 468. SECURITIES ACT OF 1933. See Jones v. Securities Comm’n, 1. 730 INDEX. SECURITIES & EXCHANGE ACT. 1. Registration Statement. Effect of stop order. Jones v. Securities Comm’n, 1. 2. Id. Right of appellant to withdraw. Id. SELF DEFENSE. See Criminal Law, 1. SENTENCE. See Criminal Law, 2-5. SEPARABILITY. See Bituminous Coal Conservation Act; Constitutional Law, I, 16-17. SET-OFF. See Bankruptcy, 2. SPECIAL MASTER. Appointments. Vermont v. New Hampshire, 642; Texas v. New Mexico, 644. “SPUR.” See Interstate Commerce Acts, 12. STATES. See Constitutional Law, I, 8-12, 18; Jurisdiction, II, 1-3; United States, 1; Waters, 1-2. Political Subdivisions. Obligations. Bankruptcy. Act of May 24, 1934, permitting political subdivision of State to avail of Bankruptcy Act, invalid. Ashton v. Cameron County, 513. STATUTES. See Constitutional Law. 1. Attacking Statute. One as to whom statute validly applies cannot complain of invalidity as to others. Morf v. Bingaman, 407. 2. Id. Party attacking statute must show injury to himself. Premier-Pabst Co. n. Grosscup, 226. 3. Construction of State Statute by highest state court, binding on federal court. U. S. v. Knott, 544. 4. Id. A construction of a state statute by the state courts resulting from their erroneous conception of federal statutes, is not binding on the federal courts. Tipton v. Atchison Ry., 141. 5. “Factual Background.” Morehead v. New York, 587. 6. Clear Meaning cannot be enlarged by construction to make statute more effective. Wallace v. Cutten, 229. 7. Failure to amend evidences legislative approval of judicial construction. U. S. v. Elgin Ry., 492. 8. Administrative Construction. Where provisions of statute are unambiguous and its directions specific, there is no power to amend it by regulations. Koshland v. Helvering, 441. 9. Id. Administrative construction of tax Act which converts an income tax into a capital levy, cannot be adopted. Id. INDEX. 731 STATUTES—Continued. 10. Separability. Carter v. Carter Coal Co., 238. 11. Repeal by implication not favored. Morf v. Bingaman, 407. 12. Particular Statutes. Tax imposed by Alabama Act of July 10, 1935, accrued upon withdrawal of gasoline from storage for sale or other use and was not upon storing as such. Graves x. Texas Co., 393. 13. Id. Fee provisions of c. 56, New Mexico Laws, 1935, were not repealed by c. 136. Morf v. Bingaman, 407. STATUTORY LIQUIDATOR. See Insolvency. STAY. See Jurisdiction, II, 25. STOCKHOLDERS. See Injunction, 3. STOCKYARDS. See Constitutional Law, IV, 1-8; Packers & Stockyards Act. STORING. See Constitutional Law, I, 12; Statutes, 12; Taxation, III, 1. STRIKES. See Constitutional Law, II, 4. SUBPOENA. See Jurisdiction, III, 18. TAXATION. See Constitutional Law, V, (B), 5; Public Moneys; Statutes, 12. I. In General, p. 731. II. Federal Taxation, p. 731. III. State Taxation, p. 732. I. In General. 1. Construction of Tax Acts. Administrative construction. Koshland v. Helvering, 441. 2. Classification for Taxation. See Morf v. Bingaman, 407. 3. Challenging Tax. Who may challenge. Id. 4. Purpose to which proceeds of tax are applied as affecting validity. Id. 11. Federal Taxation. 1. Income Tax. Capital Gains and Losses. Dividend in common voting shares to holder of preferred stock was income, not return of capital. Koshland v. Helvering, 441. 2. Id. On disposition of preferred stock no part of original cost is to be apportioned to such common shares for purpose of determining gain or loss. Id. 732 INDEX. TAXATION—Continued. III. State Taxation. 1. Federal Instrumentality. State tax on sale (or on storage • and withdrawal—essential to sale) of gasoline to United States, invalid. Graves v. Texas Co., 393. 2. Foreign Corporations. Validity of tax on foreign corporation for privilege of doing business in State. Atlantic Lumber Co. v. Commissioner, 553. 3. Id. Intangible property of foreign corporation properly taxed in State of business situs. Wheeling Steel Corp. v. Fox, 193. 4. Motor Vehicles. Fee for privilege of transporting motor vehicles on own wheels over highways of State for purposes of sale, valid. Morf v. Bingaman, 407. TAXPAYER. See Public Moneys. TRACKS. See Interstate Commerce Acts, 10-12. TRADING. See Grain Futures Act. TRANSPORTATION. See Constitutional Law, II, 7; Interstate Commerce Acts. TRIAL. Admission and Exclusion of Evidence. Prejudicial error. McCandless v. U. S'., 342. TRIAL DE NOVO. See Jurisdiction, III, 7. TYING CLAUSE. See Clayton Act, 1-4. UNITED STATES. See Claims, 1. 1. Suits Against. United States may not be sued, even by a State, without its consent. Arizona v. California, 558. 2. Priority to debts due United States by insolvent; construction of R. S. § 3466. U. S. v. Knott, 544. 3. Id. Surety company in hands of statutory liquidator by court order on its own petition was “insolvent.” Id. 4. Id. Judgment as “debt due to the United States.” Id. 5. Id. Liability on surety bonds within operation of R. S. § 3466. Id. 6. Id. Inchoate lien not enough to defeat priority under R. S. § 3466; creditors’ interest in proceeds of deposit made by foreign corporation with treasurer of Florida, not of character which would bar priority of United States. Id. INDEX. 733 UNITED STATES—Continued. 7. Id. Jurisdiction of state court to award priority in local assets of insolvent foreign corporation. Id. 8. Id. Judgment of state court denying priority prejudiced rights of United States. Id. USAGE. See Criminal Law, 5. VALUE. See Eminent Domain, 2; Evidence, 1-3. VETERANS. See Pensions, 1. * WAGES. See Bituminous Coal Conservation Act; Constitutional Law, I, 5; II, 4, 6; Minimum Wage Laws. t WAIVER. See Jurisdiction, I, 1. WATERS. 1. Apportionment of waters between States. See Arizona v. < California, 558. 2. Rights of Wyoming and Colorado in waters of Laramie River and tributaries; diversions; interpretation of former decree. Wyo- . ming v. Colorado, 573. 3. Transfer of water rights; change of use. Id. 4. Water Improvement District, a political division of State. Ashton v. Cameron County, 513. WITNESSES. See Constitutional Law, I, 2-3. WOMEN. See Constitutional Law, III, 2; IV, (B), 2. WORKMEN. See Constitutional Law, I, 5; II, 4, 6. WORKMEN’S COMPENSATION ACTS. See Safety Appliance Acts, 3. WYOMING. See Waters, 2. o