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244.US.12

Upon the facts stated in the opinion, Held, that the master and owners of the German Steamship "Kronprinzessin Cecilie" were justified in apprehending that she would be seized as a prize, and her German and other passengers detained, if she completed her voyage to Plymouth and Cherbourg on the eve of the present war; that return to this country before Plymouth was reached was a reasonable and justifiable precaution; and that libelants have no cause of action for failure to deliver their shipments of gold at those ports, although, semble, the risk did not fall within the exception of "arrest and restraint of princes, rulers or people" expressed in their. bills of lading. In an ordinary contract of carriage, not made in the expectation that war may intervene before delivery, peril of belligerent capture affords an implied exception to the carrier's undertaking, the contract being silent on the subject. The court rejects the argument that although a shipowner may give up the voyage to avoid capture after war is declared he is never at liberty to anticipate war; and holds that where war is reasonably and correctly anticipated, liability for non-delivery of freight can not depend upon a nice calculation that delivery might have been made and capture avoided if the voyage had gone on. 238 Fed. Rep. 668, reversed. THE case is stated in the opinion.

W. N. 44, 32 Times L. R. 266, 60 Sol. Jo. 253. What we have said so far we hardly suppose to be denied. But if it be true that the master was not bound to deliver the gold in England at the cost of capture, it must follow that he was entitled to take reasonable precautions to avoid that result, and the question narrows itself to whether the joint judgment of the master and the owners in favor of return was wrong. It was the opinion very generally acted upon by German shipowners. The order from the Imperial Marine Office, if not a binding command, at least shows that if the master had remained upon his course one day longer, and had received the message, it would have been his duty as a prudent man to turn back. But if he had waited till then, there would have been a question whether his coal would hold out. Moreover, if he would have been required to turn back before delivering, it hardly could change his liability that he prophetically and rightly had anticipated the absolute requirement by twenty-four hours. We are wholly unable to accept the argument that although a shipowner may give up his voyage to avoid capture after war is declared, he never is at liberty to anticipate war. In this case the anticipation was correct, and the master is not to be put in the wrong by nice calculations that if all went well he might have delivered the gold and escaped capture by the margin of a few hours. In our opinion the event shows that he acted as a prudent man. We agree with the counsel for the libellants that on July 27 neither party to the contract thought that it would not be performed. It was made in the usual form, and, as we gather, charged no unusual or additional sum because of an apprehension of war. It follows, in our opinion, that the document is to be construed in the same way that the same regular printed form would be construed if it had been issued when no apprehensions were felt. It embodied simply an ordinary bailment to a common carrier, subject to the implied exceptions which it would be extravagant to say were excluded because they were not written in. Business contracts must be construed with business sense, as they naturally would be understood by intelligent men of affairs. The case of The Styria, supra, although not strictly in point, tends in the direction of the principles that we adopt. Decree reversed. Mr. Justice Pitney and Mr. Justice Clarke dissent, upon grounds expressed in the opinions delivered by Circuit Judges Dodge and Bingham in the circuit court of appeals, 238 Fed. 668.

244.US.574

City ordinances granting street railway franchises in the State of Washington, with the right at any and all times to make reasonable rules and regulations for the management and operation of the railway lines thereby authorized, contained a proviso that such rules and regulations should not conflict with the laws of the State. Held: (1) That the proviso, fairly construed, meant the laws as they should from time to time exist. (2) That the act establishing the Public Service Commission of Washington (Laws 1911, c. 117), and orders of the commission requiring the appellant company to run through cars beyond the limits of the lines covered by such franchises over other parts of its system, were within the description of the proviso, and so did not impair its contract rights (if such they were) to make such rules and regulations. A municipality cannot, by contract 'with a street railway company, foreclose the exercise of the police power of the State in respect of the regulation of rates of fare and transfer privileges, unless clearly authorized to do so by the supreme legislative power. Detroit United Railway v. Michigan, 242 U. S. 238, distinguished. Under the Constitution of Washington, which anitedated the ordinances here in question, contractual provisions in franchises conferred by municipal corporations without express legislative authority are subject to be set aside by the legislature; and the Public Utilities Act, supra, supersedes any conflicting ordinance or charter provision of a city. Where several street railway lines, built under distinct franchises, are owned and operated as one system, a public regulation concerning car service and fares will not be adjudged confiscatory because of its financial results to the line immediately affected, if the system as a whole remains profitable. Where several street railway lines, built under distinct franchises, are owned and operated as one system, it is clearly within the bounds of reasonable regulation to establish through service between them, for a single fare. 223 Fed. Rep. 371, affirmed.

Appellant (plaintiff below) owns and operates a street railway system in the city of Seattle, Washington, aggregating about 200 miles, as assignee of numerous franchises granted to its predecessors in interest by the cities of Seattle, West Seattle, and Ballard, and by King county. It filed its bill in the district court to obtain relief from the operation and effect of an order made by the Public Service Commission of the state on March 24, 1915, bringing in as defendants the members of the Commission and the attorney general of the state. Plaintiff being a corporation of the state of Massachusetts, and defendants citizens of the state of Washington, the jurisdiction was invoked both upon the ground of diversity of citizenship and upon the ground that the order complained of was alleged to impair the obligation of contracts and deprive plaintiff of its property without due process of law, in violation of the Constitution of the United States. The order was made as the result of an investigation of which plaintiff had notice, and it contains the following provisions: '(1) That the defendant company [plaintiff] continue the operation of through service on the Ballard beach line. '(2) That the Alki point and Fauntleroy park lines be operated through the city of Seattle on First or Second avenue as far north at least as Virginia street. '(3) That the defendant company furnish sufficient cars to provide seats for substantially all persons using the Alki point and Fauntleroy park lines.' The third paragraph was subject to a qualification; but since the district court granted an injunction against this part of the order, and defendants have not appealed, the qualifying clause need not be set forth and we may confine our attention to the requirements of &Par;1 and 2. As to these, the district court, three judges sitting, denied an application for a temporary injunction (223 Fed. 371), and plaintiff brings the case here by direct appeal under § 238, Judicial Code [36 Stat. at L. 1157, chap. 231, Comp. Stat. 1916, § 1215]. In order to understand the effect of the first two paragraphs and the grounds upon which they are attacked, it should be stated that the Ballard beach line was constructed and is operated under a franchise ordinance of the city of Ballard, which city afterwards became and now is a part of the city of Seattle. The line extends from Ballard beach to the intersection of West 59th street and 24th avenue, at which point it connects with lines of plaintiff that were constructed under other franchises. For some time prior to and at the date of the making of the order in question, plaintiff had been and was operating through cars over the Ballard beach line and the connecting lines to and into the business section of Seattle, instead of physically transferring passengers from car to car at West 59th street and 24th avenue. Because, as is said, of the expense attached to the operation of through cars, plaintiff had given notice that it would discontinue such operation and require the transfer of passengers at the point mentioned. The effect of the order was to require plaintiff to continue the through service. The Alki point and Fauntleroy park lines, each of them 8 or 9 miles in length, were constructed under separate franchises granted to predecessors in interest of plaintiff by the city of Seattle. They have their northern termini at or about Yessler way, but for two or three years prior to the date of the order cars on these lines, instead of stopping on their north-bound trips at that point, continued about a mile farther north along First or Second avenue to Virginia street, in the business district of the city. Shortly before the promulgation of the order, this through service was discontinued, and north and South-bound passengers required to transfer at Yessler way. The effect of the order was to compel the reinstatement of the through service. The ordinances under which these three lines were constructed provide in substance that the company 'shall have the right at any and all times to make reasonable rules and regulations for the management and operation of the railway lines herein provided for; provided that such rules and regulations shall not conflict with the laws of the state of Washington and the charter and ordinances of the city.' Each franchise provides also that the company shall have the right to charge a passenger fare for one continuous passage, not exceeding 5 cents, even though a transfer be necessary, but shall sell commutation tickets entitling the purchaser to 25 rides for $1, such tickets, however, not to be transferable, and not to entitle the owner to the transfer privilege. (1) One ground of complaint respecting the order of the Commission is that, in requiring passengers to be carried beyond the limits of a particular franchise, it in effect confers the transfer privilege upon holders of commutation or '4-cent' tickets. The order says nothing about rates of fare; but we will assume, as the district court assumed, that it has the effect attributed to it in this respect. It is urged that the order impairs the obligation of the contracts contained in the franchise ordinances, both in regard to transfers and in regard to plaintiff's right to make rules for the management and operation of its lines. As to the latter point, the proviso that the rules 'shall not conflict with the laws of the state,' etc., by fair construction, means the laws as they shall from time to exist. The act establishing the Public Service Commission (Laws 1911, chap. 117) and orders made by that Commission are within the description; hence, the contract, if it be a contract, was subject to and is not impaired by the order in question. Assuming (what is not clear) that the provision in the franchise ordinances respecting the rates of fare and the transfer privilege are contractual in form, still it is well settled that a municipality cannot, by a contract of this nature, foreclose the exercise of the police power of the state unless clearly authorized to do so by the supreme legislative power. The Constitution of Washington, art. 12, § 18, requires the legislature to pass laws establishing reasonable maximum rates of charges for the transportation of passengers and freight, and to correct abuses and prevent discrimination in rates by railroads and other common carriers, and provides that 'a railroad and transportation commission may be established, and its powers and duties fully defined by law.' By art. 11, § 10, any city containing a population of twenty thousand inhabitants or more is permitted to frame a charter for its own government 'consistent with and subject to the Constitution and laws of this state.' This Constitution was adopted in 1889, long previous to the date of the earliest of plaintiff's franchise ordinances. The supreme court of Washington has held that the provisions of municipal charters are subject to the legislative authority of the state; that the Public Utilities Act superseded any conflicting ordinance or charter provision of any city; and that contractual provisions in franchises conferred by municipal corporations without express legislative authority are subject to be set aside by the exercise of the sovereign power of the state. Ewing v. Seattle, 55 Wash. 229, 104 Pac. 259; State ex rel. Webster v. Superior Ct. 67 Wash. 37, 43-50, L.R.A.1915C, 287, 120 Pac. 861, Ann. Cas. 1913D, 78. The present case is very clearly distinguishable from Detroit United R. Co. v. Michigan, 242 U. S. 238, 248, 61 L. ed. 268, 37 Sup. Ct. Rep. 87, where the state legislature had expressly provided that the municipal corporation might make a binding agreement with a street railway respecting the rates of fare. (2) It is insisted that neither the Alki nor the Fauntleroy park line is earning sufficient to pay its operating cost, or ever can do so under a fare limited to 5 cents, and that for this reason an order requiring these lines to carry passengers beyond the termini fixed in their franchises upon 4-cent tickets, and to give them the more costly through service by means of a single car, is necessarily a taking of plaintiff's property without compensation, and hence without due process of law, within the meaning of the 14th Amendment. A similar point was made in the bill with respect to the Ballard beach line, but is not seriously pressed here. As to the other two lines, there seems to be no question that since they run for a considerable distance over the tide flats, receiving and discharging but few passengers en route, so that a majority of the passengers are carried distances of 5 or 6 miles, these lines, separately considered, never have paid operating expenses, and probably never will. But we cannot accede to the suggestion that the question whether the Commission's order is confiscatory or otherwise arbitrary within the inhibition of the 14th Amendment is to be determined with reference alone to the Alki, the Fauntleroy, or the Ballard beach lines. These are and long have been operated by plaintiff as parts of a system comprising 200 miles of tracks. The Commission found that the net earnings of the system for the year ending February 28, 1915, not including depreciation and taxes, were upwards of $1,600,000; that the company had refused to produce the valuations of its property made by experts, and had failed to show that there was not sufficient return from its property to pay operating expenses, taxes, and depreciation, and leave a balance. And from the evidence introduced the Commission found the fact to be that, allowing for the services required by its order, the company would have net returns over and above operating expenses, taxes, and depreciation. It was not and is not contended that the system earnings are unremunerative. Plaintiff relies upon Northern P. R. Co. v. North Dakota, 236 U. S. 585, 604, 59 L. ed. 735, 745, L.R.A.——, ——, P.U.R. 1915C, 277, 35 Sup. Ct. Rep. 429, Ann. Cas. 1916A, 1, where this court held that a statute which segregated a single commodity, and imposed upon it a rate that would compel the carrier to transport it for less than the proper cost of transportation, was in excess of the power of the state. In our opinion, that decision is inapplicable, the present case being controlled rather by St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649, 665, 39 L. ed. 567, 573, 15 Sup. Ct. Rep. 484, where the state of Arkansas had prescribed a maximum rate of 3 cents per mile for each passenger, under a penalty payable to the passenger from whom an overcharge was exacted, and in an action to recover such a penalty the company defended on the ground that the portion of its road over which plaintiff was carried was highly expensive to construct and maintain, and that the cost of maintaining it and transporting passengers over it exceeded the maximum rate fixed by law. But this court held 'that the correct test was as to the effect of the act on the defendant's entire line, and not upon that part which was formerly a part of one of the consolidating roads; that the company cannot claim the right to earn a net profit from every mile, section, or other part into which the road might be divided, nor attack as unjust a regulation which fixed a rate at which some such part would be unremunerative; . . . and, finally, that to the extent that the question of injustice is to be determined by the effects of the act upon the earnings of the company, the earnings of the entire line must be estimated as against all its legitimate expenses under the operation of the act within the limits of the state of Arkansas.' (3) Plaintiff's briet contains some general attacks upon the effect of the Commission's order in requiring plaintiff to carry passengers over portions of 'separate and distinct franchise routes' upon payment of a single fare. This criticism is not well founded. Even were the several portions of its lines separately owned, they being operated practically as a single system, it would be within the bounds of reasonable regulation to establish through service and a joint rate. Wisconsin, M. & P. R. Co. v. Jacobson, 179 U. S. 287, 296, 301, 45 L. ed. 194, 199, 201, 21 Sup. Ct. Rep. 115; Michigan C. R. Co. v. Michigan R. Commission, 236 U. S. 615, 629, 59 L. ed. 750, 755, P.U.R. 1915C, 263, 35 Sup. Ct. Rep. 422. The decree of the District Court, so far as appealed from, is affirmed. The CHIEF JUSTICE and Mr. Justice McKenna dissent because they are of the opinion that this case, as a matter of authority, is controlled by Detroit United R. Co. v. Michigan, 242 U. S. 238, 61 L. ed. 268, 37 Sup. Ct. Rep. 87, and that as a matter of original consideration the assailed legislation has impaired the obligation of a contract, in violation of the Constitution of the United States, and was repugnant to the Constitution because wanting in due process. Mr. Justice McReynolds also dissents.

246.US.178

The findings of a special master appointed, with consent of parties, to take the testimony and report it with his findings of fact and conelusions of law for the advisement of the District Court, are not oonelusive but subject to review by that court upon exceptions. Where a master, so appointed, had heard the issues fully and admitted all proffered evidence, and the exceptions to his findings raised no serious questions of fact, this court found it unnecessary to remand the case to the District Court because the latter, erroneously, declined to pass upon the exceptions, but, having before it the evidence and all matters necessary for judgment, proceeded to do what that court should have done-considered the report, passed upon the exceptions, and made such decree as was deemed equitable. Where a city was peculiarly dependent upon the continued use of the plant of a water company whose franchise had expired, the situation negativing the idea that other means were presently procurable or in contemplation for supplying the water vital to the community, and an ordinance was passed which, by its enacting provisions, not only fixed the rates which the company might charge in future but in addition provided for collecting charges semi-annually in advance for various uses which could not be discontinued on brief notice, required installation of meters for all prospective users, to be paid for monthly, and of hydrants to be ordered thereafter by the city upon extended as well as existing mains, at an annual rental, and imposed fines upon the company or its agents for any violation of the ordinance, held, that these provisions were inconsistent with declarations in the preamble characterizing the company as a tenant by sufferance and disclaiming any intention to recognize its right to occupy the streets or continue the service; and that the ordinance should be construed liberally, so as to preserve the substantial rights of both parties, viz: as recognizing the city's dependence on the plant, as conferring, impliedly, whatever privileges might be necessary to enable the company to continue serving the public, as in effect requiring it to furnish water, and in terms forbidding it from exceeding the specified rates; and so, as granting a new franchise of indefinite duration, terminable either by the city or by the company at such time and under such circumstances as would be consistent with the duty owed by both to the inhabitants. In view of the new rights so conferred upon the company, its plant employed in supplying the city with water must not be valued as "junk," but as property useful and in use in the public service, in determining whether the rates fixed by the ordinance allow an adequate return. Nor is this question of value greatly affected, if at all, by the fact that there is neither right nor obligation to continue the use perpetually, or for any long period that may be defined in advance. In valuing the plant of a public service company as a basis for determining the adequacy of rates fixed by a city, it is proper to estimate land at present market value, and structures at reproduction cost less depreciation. Also the "going-concern value," due to the fact that the plant is assembled and established, doing business and earning money, is a property right which should be considered in such determinations, and estimated in each case upon the circumstances therein presented. What rate of compensation may be regarded as adequate depends greatly upon circumstances and locality. In this case, where the net annual return obtainable under the ordinance rates was but 4.3% (approximately), of the value of the plant, excluding certain disputed water rights, in a city where the prevailing rate of interest for secured loans on business and residence properties was 6%, with higher rates for loans less secured, hed, that the return was clearly insufficient and that the ordinance amounted to a taking of the company's property without due process of law. Whether, in Colorado, a company under franchise contract to furnish water for a city becomes the owner of water rights which it originates by diverting water from natural streams and supplying it to the consumers under short license contracts-not decided. Modified and affirmed.

We have here an appeal and a cross-appeal from a final decree made in a suit in equity brought by the Denver Union Water Company against the city and county of Denver and the members of its council and other public officials, for the purpose of restraining the enforcement of an ordinance passed March 3, 1914, fixing the rates for water perm tted to be charged thereafter by the company, upon the ground that they did not afford a fair and reasonable compensation, based upon the value of the property of complainant necessarily used in the service, and hence amounted to a taking of private property without due process of law within the meaning of the Fourteenth Amendment. The city and county of Denver is a municipal corporation having broad powers of self-government, including the power on the part of five per cent. of the electors to initiate an ordinance by petition. For convenience it will be referred to as the city. An answer having been filed, putting the cause at issue, the District Court, by consent of parties, appointed a special master, 'with all of the powers conferred upon the master under the rules of practice for the courts of equity of the United States, and subject to the further orders of this court, * * * for the purpose of taking all testimony in the suit and reporting to the court said testimony, his findings of fact and such conclusions of law as he may deem essential to the proper advisement of the court.' After a full hearing he made an elaborate report, sustaining complainant's main contention. The city and the Public Utilities Commission, defendants, filed numerous exceptions to his findings and conclusions, raising questions respecting certain elements that entered into his valuation of complainant's plant. Complainant, while declaring that it did not consent to a review of the report so far as it was conclusive under the order of reference, filed exceptions, subject to such ruling as the court might make respecting its reviewability. Upon these exceptions the cause came on to be heard, whereupon the court, being of the opinion that under the terms of the order appointing the special master his findings of fact were not open for its consideration, and that no material questions of law were raised that could be considered without an examination of the facts, ordered that the exceptions of both parties be struck out, confirmed the master's report, and passed a final decree in favor of complainant in accordance with his findings. Defendants appealed to this court, presenting assignments of error based upon the overruling by the District Court of their exceptions to the master's report. Complainant filed a cross-appeal presenting assignments of error for consideration only in the event that defendants' assignments of error, or some of them, should be sustained. In our opinion, the District Court erred in declining to pass upon the questions raised by the exceptions. Although no opinion was filed, the ruling appears to have been based upon the theory that because the order of reference was made by consent of parties, the conclusions of the master were not open to question. Kimberly v. Arms, 129 U. S. 512, 524, 9 Sup. Ct. 355, 32 L. Ed. 764, and Davis v. Schwartz, 155 U. S. 631, 633, 636, 15 Sup. Ct. 237, 39 L. Ed. 289, are cited in support, but they are distinguishable. In the former case, the reference, made by consent of the parties, authorized the master to hear the evidence and decide all the issues between them, and it was because of this that the court held the findings were not merely advisory, as in the ordinary case, but were to be taken as presumptively correct, 'subject, indeed, to be reviewed under the reservation contained in the consent and order of the court, when there has been manifest error in the consideration given to the evidence, or in the application of the law, but not otherwise,' and that the findings ought to have been treated as 'so far correct and binding as not to be disturbed unless clearly in conflict with the weight of the evidence upon which they were made.' Davis v. Schwartz is to the same effect. In the present case, the consent given to the order of reference was conditioned by the terms of the order itself, which, as we have seen, limited the functions of the master to the taking of testimony and reporting it to the court together with his findings of fact and conclusions of law for the advisement of the court. The error of procedure, however, does not necessitate sending the case back to the District Court. The issues were fully heard before the master, all proffered evidence was admitted, the exceptions taken to his findings raise no serious questions of fact, we have before us in the record the evidence and all other materials necessary for judgment, and will simply proceed to do what the District Court ought to have done, namely, consider the report and pass upon the exceptions, and make such decree as is equitable in the premises. It was admitted before the master, and is not here controverted, that the company is the sole owner of the waterworks, plant, and system in question, including lands, diversion works, reservoirs, filters, conduits, distribution works, and other apparatus, and is serving the city and its inhabitants with water, that no other waterworks or system of distribution exists in the city, and that although the city has power to construct a system of its own (subject to a limit of cost that will be mentioned below), it has not commenced to do so. It was, however, contended by defendants, in the answer and upon the hearing before the master and the contention is here renewed—that as to such of the company's water diversion rights as had been acquired by it or its predecessors by original appropriation and user (as distinguished from those acquired by purchase) the right to the water itself was not the property of the company but of the city; and this upon the theory that, under the law of appropriation as it obtains in Colorado, the right of diversion belonged to those for whose use and benefit the appropriation was made, the company being entitled to compensation only for its services as carrier in distributing the water by means of the physical system owned by it. The report of the special master shows, what is not disputed, that his investigation of the matters referred to him was most painstaking and thorough. In estimating the value of the company's property, he adopted the following method, with the practical consent of the parties: Lands and water rights were appraised at their present market values; estimates of the cost of reproducing the structures were made, and, from this cost, allowance for accrued depreciation was deducted so as to determine the reasonable value of the structures in their present condition; and in estimating the cost of reproduction it was assumed that the work would be done under contract after fair competitive bidding, and with reasonable costs for engineering and superintendence in addition to the contract cost. Separate consideration was given to the various tracts of land owned by the company, and the various water rights, diversion works, reservoirs, conduits, distribution pipes, personal property, and other items constituting the plant. He found the plant to be in excellent condition, supplying water abundantly in excess of the needs of the community and under a proper pressure, and found its entire value to be $13,415,899, in which only elements seriously questioned by the city were: (a) The disputed water diversion rights, which he held to be the property of the company and valued at $1,998,117; and (b) an item of $800,000 for 'going concern' value, allowed by the master upon the ground that the company had 'an assembled and established plant doing business and earning money,' according to the principle laid down by this court in Des Moines Gas Co. v. City of Des Moines, 238 U. S. 153, 165, 35 Sup. Ct. 811, 59 L. Ed. 1244. He made no allowance for franchise value or for any permanent right to maintain the waterworks in the streets of the city; but he did value the plant as capable of use and actually in use in the public service, and found that a new plant capable of serving the public with like efficiency could not be built for $13,415,899—a finding to which no exception was taken. The master further found that the net earnings of the company under the ordinance of 1914, after making proper allowances for operating expenses, taxes, and depreciation, would be $488,820, or only 3.64 per cent. of the reasonable value of the plant; while the prevailing rate of interest for secured loans on business and residence properties in Denver was about 6 per cent., with higher rates for loans less adequately secured. Defendants now insist that the company is occupying the streets and performing its service merely at sufference; that its rights arose solely out of a franchise ordinance adopted in 1890 and which expired in 1910; and that the city now has the right to exclude the company from its streets, and hence the right to fix the terms upon which it shall continue to do business, and that the value to the company of the property under these circumstances is what it would bring for some other use in case the city should build its own plant—in other words, as to a large part of the property, 'junk value.' Of course, it is a necessary corollary that the company may discontinue its service at will. We are unable to regard the case as capable of being thus disposed of upon the basis of 'junk value' for complainant's property. In the first place, no such question is presented, either by the pleadings, the master's report, the exceptions, or the assignments of error. The bill averred that complainant was 'entitled to have its property devoted to the public use of supplying the city and county of Denver and its inhabitants with water remain unimpaired in value, and to receive for the water supplied and services rendered a reasonable return upon the value of the property so devoted to said uses, and a sufficient amount to protect said property against depreciation and other impairments of value.' The answer admitted complainant's ownership of the system of waterworks (except that as to certain of the water rights it was denied upon legal grounds that have been indicated), and admitted that 'complainant is entitled to have its property devoted to the public use of supplying the city and county of Denver and its inhabitants with water remain unimpaired in value, so far as its actual use in supplying the city and county of Denver and its inhabitants with water is concerned, and to receive for the services rendered in supplying such water a reasonable return upon the value of the property devoted to such use, and a sufficient amount to protect said property against depreciation and other impairments of value in connection with such use and such water service.' The answer further alleged that the rates fixed by the ordinance of 1914 'are fair, reasonable, just, and will produce for complainant a fair, reasonable, and adequate return upon the capital actually invested by complainant in its water system and carrying service.' The master's report shows that no question was made before him but that the plant should be valued as a plant in use, except as it was contended that the item of $800,000 for going concern value ought to be eliminated on the ground that such an element of value, admittedly existent in a 'purchase case,' could not be considered in a 'rate case,' and on the further ground that the company's franchise had expired. This latter point was made the basis of one of the exceptions. Aside from this, the exceptions were devoted mainly to the contention, already mentioned, that the company's water rights, other than those which had been purchased, were the property not of the company but of the city. It was at no time contended that any element of value except 'going concern value' ought to be excluded because of the expiration of the franchise. Defendant's assignments of error are based upon the exceptions, and raise no other question. But, supposing the question were properly raised, we are convinced that by the true intent and meaning of the ordinance of 1914 new rights were conferred upon the company of such a nature that in considering the effect of the provisions limiting rates, the plant must be valued not as 'junk' but as property useful and in use in the public service. It is true the title and preamble of the ordinance contain indications of a purpose to treat the company as a mere tenant by sufferance of the streets, but its enacting provisions do not carry out this purpose; and the measure must be construed as a whole, in the light of the circumstances existing at the time of its adoption, and with proper regard for the consequences that would result from giving to it the meaning contended for by the city. Under the ordinance of 1890 the company had a franchise which expired April 10, 1910, at which time the city had an option either to purchase the works at an appraised valuation, or to renew the contract for a period of twenty years. After its expiration litigation ensued as a result of which this court held, in May, 1913, that the city was under no obligation to accept either option, and that its failure to renew the contract did not amount to an election to purchase the plant. Denver v. New York Trust Co., 229 U. S. 123, 138, 33 Sup. Ct. 657, 57 L. Ed. 1101. Meanwhile fruitless negotiations were conducted looking to a purchase of the plant by the city, but leaving the parties far apart upon the question of valuation. The city on May 17, 1910, adopted a charter amendment whereby it cerated the Public Utilities Commission, directed that an offer of $7,000,000 be made for the property of the company, and provided that in case of its rejection steps should be taken to construct a water system owned and operated by the city at a cost not to exceed $8,000,000. The water company rejected the offer of $7,000,000; but the city did not commence—has not yet commenced—the construction of its own water system. The company continued to supply water to the city and its inhabitants at the rates charged during the continuance of the ordinance of 1890. In August, 1913—after our decision in the case just mentioned—the city and the Public Utilities Commission appointed a commission of three to inspect, examine, and report upon complainant's water system, and after an investigation, during which complainant gave this commission every reasonable opportunity for inspection and examination of its records and data, the commission, on January 14, 1914, made a unanimous report to the effect that complainant's system was in excellent working condition, adequate for supplying the city's present needs, and worth, exclusive of going-concern value or water rights, something over $10,000,000, and declaring that it would take five years, without allowance for delays in legal proceedings, for the city to construct a new system of its own, and would cost $12,750,000. After this report, and on February 17, there was submitted to the electors and taxpaying electors of the city a contract by which the city was to purchase complainant's water system and properties at a price to be fixed by appraisers including the Public Utilities Commission who were to act for the city, which contract complainant agreed to accept and abide by if favorably voted on by the taxpaying electors. It was rejected. Prior to the first of February the ordinance now in question, greatly reducing the rates, was prepared at the instance of the Public Utilities Commission, circulated as an initiated bill under the appropriate provision of the city charter, received the signatures of more than five per cent. of the electors, but only 5,593 in all,1 was filed with the city clerk about a week after the election just mentioned, was introduced in the city council, published once, and passed by the council on March 3, without amendment and without hearings; that body having acted either in the belief that, since the measure was presented with the signatures of a sufficient number of the citizens, it was mandatory upon the council to pass it, or else that they had no other option except to refer it to a vote of the people, which was not done. See Speer v. People, 52 Colo. 325, 343, 122 Pac. 768. W remark upon the legislative procedure simply because of its bearing upon the interpretation of the measure, which, as we shall see, lacks certainty in its enacting clauses. The practical situation existing at the time of its enactment is sufficiently clear from what has been said. The answer admits the averment of the bill that complainant has been and is compelled to continue to serve the city and its inhabitants with water, because there is no other supply of water available, and a cessation of its service would result in great suffering, damage, and loss of life. The city is located in a semi-arid region, and is and for nearly a half century has been absolutely dependent upon the continued operation of complainant's system. The termination of the legal franchise in 1910 did not absolve the city from its duty to the inhabitants. At the time of the enactment of the ordinance of 1914 the company's plant had been in use for four years since the expiration of the former franchise; the city, while endowed with the power to construct a system of its own, but only if it could be done at a cost not exceeding $8,000,000, had not yet commenced the construction of such a system, had just been officially advised that one could not be constructed for less than $12,750,000, and nevertheless had rejected a proposition to purchase complainant's system at an appraised value. It is in the light of all these circumstances that the provisions of the ordinance of 1914 must be read. There is a preamble reciting that since 1910 the company had been without franchise and a mere tenant by sufferance of the streets, and that, while it had been supplying the city and its inhabitants with water, it had done so 'at rates that are excessive and that should be reduced and regulated accordingly'; and there is a declaration that the enactment is made without recognizing the company's right to occupy the streets or to continue its service, but for the purpose of regulating and reducing its charges 'during the time it shall further act as a water carrier and tenant by sufferance of said streets.' But the enacting provisions, in the terms employed and by necessary intendment, are inconsistent with these declarations, and must be taken to override them. The first section establishes, as the maximum charges permitted to be made by the company, a detailed schedule of 'semiannual water rates payable in advance on the first day of May and November of each year.' The various uses are specified, and many of these are of kinds that cannot be discontinued on brief notice. There is a special rate for irrigation by the season, May 1 to November 1. There is a provision for meter rates, payable monthly, with a clause requiring the company to instal a meter for any person desirous of using water by meter. Section 2 provides that for hydrants, including 'those which may thereafter be ordered by the council to be set upon existing mains or upon extensions thereof,' the city shall pay annual rentals. And section 4 imposes fines upon the company and its agents for any violation of the ordinance. Of course, these provisions are of themselves inexplicit; but in attributing a meaning to them the choice is between a liberal construction that preserves the substantial rights of both parties and a strict construction highly penal and destructive in its effect upon both. The subject-matter was a prime necessity of life, for which there was no substitute available. The very act of regulating the company's rates was a recognition that its plant must continue, as before, to serve the public needs. The fact that no term was specified is, under the existing circumstances, as significant of an intent that the service should continue while the need existed as of an intent that it should not be perpetual. Without attributing to the initiators and to the city council a purpose to subject the inhabitants to grave danger of disease or worse, e cannot read the enacting provisions as leaving the company actually without the right to maintain its plant in the city thereafter, for necessarily this would leave it at liberty to discontinue the service at will. The alternative, which we adopt, is to construe the ordinance as the grant of a new franchise of indefinite duration, terminable either by the city or by the company at such time and under such circumstances as may be consistent with the duty that both owe to the inhabitants of Denver. It recognizes the dependence of the city upon this plant, by necessary implication confers upon the company whatever privileges may be necessary to enable it to continue serving the public, in effect requires it to furnish water, and in terms prohibits it from exceeding the specified rates. In this situation, there can be no question of the company's right to adequate compensation for the use of its property employed, and necessarily employed, in the public service; nor can it be doubted that the property must be valued as property in use. It involves a practical contradiction of terms to say that property useful and actually used in a public service is not to be estimated as having the value of property in use, but is to be reckoned with on the basis of its 'junk value.' Nor is the question of value for present purposes greatly affected, if at all, by the fact that there is neither right nor obligation to continue the use perpetually, or for any long period that may be defined in advance. The reason is not obscure: the cost and detriment to a property owner attributable to the use of his property by the public, and the value of the service rendered by the property to the public, are measured day by day, month by month, year by year, and are little influenced by the question how long the service is to continue. The cost of the service includes the use of the plant, but, ordinarily, not its destruction, except through the slow processes of wear and tear and obsolescence, for which graduated depreciation allowances are made. The whole calculation is a matter of income, not capital, accounting; and the cost and value of the use of a given property for a stated period is the same whether the use is to be continued after the expiration of the period or not. If the period is extended, compensation for the use is extended proportionately. What we have said establishes the propriety of estimating complainant's property on the basis of present market values as to land, and reproduction cost, less depreciation, as to structures. That this method was fairly applied by the special master hardly is disputed by appellants, except as they contest the items allowed for 'going-concern value' and for the water rights acquired by complainant and its predecessors by original appropriation. With respect to the former item, we adhere to what was said in Des Moines Gas Co. v. Des Moines, 238 U. S. 153, 165, 35 Sup. Ct. 811, 815 (59 L. Ed. 1244): 'That there is an element of value in an assembled and established plant, doing business and earning money, over one not thus advanced, is self-evident. This element of value is a property right, and should be considered in determining the value of the property, upon which the owner has a right to make a fair return when the same is privately owned although dedicated to public use.' As was then observed, each case must be controlled by its own circumstances. In the present case, the master expressly declared that his detailed valuation of the physical property and water rights included no increment because the property constituted an assembled and established plant, doing business and earning money; and a careful examination of his very elaborate report convinces us that this is true. The amount allowed by him on this account is not open to serious question from the standpoint of appellants. The only remaining question of serious moment is the allowance of $1,998,117 for the value of water rights acquired by original appr priation as distinguished from acquisitions by purchase. The master found that these appropriations were made at times when the company or its predecessor held franchise contracts with the city calling for a supply of water to the inhabitants; that these contracts were limited to short periods, while the use by private consumers was under simple permits or licenses for periods of six months, at rates paid in advance, and under expressed conditions that terminated their right to use the water on violation of the reasonable rules of the company. The parties agree that such a diversion and beneficial use of the unappropriated water of a natural stream is sufficient to initiate and perfect a right to continue to use beneficially the volume of water so appropriated. Complainant contends, and the master held, that the ownership of the appropriation under such circumstances may be fixed by contract between the one who diverts and the one who beneficially applies the water, and that under the circumstances of the case, upon a proper application of the rule adopted by the Supreme Court of Colorado in City of Denver v. Brown, 56 Colo. 216, 138 Pac. 44, the water rights in question were owned by complainant. Appellants contend that under the Constitution of Colorado (article 16, § 5), and under the law as established by repeated decisions of the Supreme Court, the right to the use of water is not permitted to be acquired by appropriation from the natural streams for purposes of sale or rental; that there is no ownership of the water or right to the use of it except by those actually applying it to a beneficial use; that not only must application to a beneficial use be united to diversion in order to render the right of appropriation complete, but that where a carrying company diverts water for the beneficial use of others it acts as the agent or quasi trustee of the consumers for the protection of their rights, and is not itself the owner of the rights of diversion. In support of this view, Wheeler v. Northern Colorado Irrigation Co., 10 Colo. 582, 17 Pac. 487, 3 Am. St. Rep. 603; Farmers' High Line Canal & Reservoir Co. v. Southworth, 13 Colo. 111, 21 Pac. 1028, 4 L. R. A. 767; Combs v. Agricultural Ditch Co., 17 Colo. 146, 28 Pac. 966, 31 Am. St. Rep. 275; Wyatt v. Irrigation Co., 18 Colo. 298, 33 Pac. 144, 36 Am. St. Rep. 280; White v. Highline Canal Co., 22 Colo. 191, 43 Pac. 1028, 31 L. R. A. 828; Ind. Ditch Co. v. Agr. Ditch Co., 22 Colo. 513, 45 Pac. 444, 55 Am. St. Rep. 149; Wright v. Platte Valley Irrigation Co., 27 Colo. 322, 61 Pac. 603, and some other cases are cited; it being insisted that they establish the rule contended for, and that their authority is not overthrown, but on the contrary recognized, by City of Denver v. Brown, 56 Colo. 216, 138 Pac. 44. The question is one of great consequence, and is not free from difficulty. It ought not to be passed upon unless the exigencies of the case require it. We find it unnecessary to determine it. As we have shown, the master found the value of complainant's entire plant, including these water rights, to be $13,415,899. Deducting $1,998,117, the entire value of the disputed rights, there remains a valuation of $11,417,782. No part of this is seriously disputed except the item for going concern value, upon which we laready have passed. The master found that the net earnings of the company under the ordinance of 1914 would be $488,820. No question is made about this, except some slight criticism of the depreciation charges that enter into the calculation; a criticism that we cannot sustain. The net return, therefore, is found to be only 4.2812 per cent. of the value of the plant, excluding the disputed water rights; while there is no controversy over the master's finding that the prevailing rate of interest for secured loans on business and residence properties in Denver is about 6 per cent., with higher rates for loans less adequately secured. As was declared in Willcox v. Consolidated Gas o., 212 U. S. 19, 48, 29 Sup. Ct. 192, 53 L. Ed. 382, 15 Ann. Cas. 1034, 48 L. R. A. (N. S.) 1134, the question of the rate of compensation that may be regarded as sufficient depends greatly upon circumstances and locality. In that case we held (212 U. S. 50, 29 Sup. Ct. 192, 53 L. Ed. 382, 15 Ann. Cas. 1034, 48 L. R. A. [N. S.] 1134) that complainant was entitled to 6 per cent. on the fair value of its property devoted to the public use. We have no hesitation in holding that the return yielded by the ordinance now before us is clearly inadequate, and amounts to a taking of complainant's property without due process of law, contrary to the provision of the Fourteenth Amendment in that regard, even excluding from consideration the disputed water rights. The decree of the District Court will be modified so as to overrule, instead of striking out, the exceptions taken by defendants to the master's report, and as so modified it will be affirmed. Modified and affirmed.

242.US.470

The White Slave Traffic Act of June 25, 1910, c. 395, 36 Stat. 825, applies to any case in which a woman is transported in interstate commerce for the purpose of prostitution or concubinage; pecuniary gain, either as a motive for the transportation or as aii attendant of its object, is not an element in the offenses defined. As so read the act is constitutional. When the language of a statute is plain and does not lead to absurd or impracticable results, there is no occasion or excuse for judicial construction; the language must then be accepted by the courts as the sole evidence of the ultimate legislative intent, and the courts have no function but to apply and enforce the statute accordingly. Statutory words are presumed, unless the contrary appears, to be used in their ordinary sense, with the meaning commonly attributed to them. When an act provides that it shall be known and referred to by a designated name, the name can not be made the means of overriding the plain meaning of its other provisions. The reports of congressional committees may be resorted to by the courts when the legislation to which they relate is doubtful and requires interpretation. The meaning which this court had attributed to the words "any other immoral purpose" as used in the act concerning the importation of alien women, Act of February 20, 1907, c. 1134, 34 Stat. 898, 899, Congress must be presumed to have known when it employed the same words in a similar association in the White Slave Traffic Act. The 1Oower of Congress under the commerce clause, including as it does authority to regulate the interstate transportation of passengers and to keep the channels of interstate commerce free from immoral and injurious uses, enables it to forbid the interstate transportation of women and girls for the immoral purposes of which the petitioners were convicted in these cases. When an accused person voluntarily testifies in his.own behalf and omits to deny or explain incriminating circumstances and events already in evidence in which he participated and concerning which he is fully informed, his silence subjects him to the inferences naturally to be drawn from it, and an instruction to that effect does not violate his rights under the Fifth Amendment or the Act of March 16, 1878, c. 37, 20 Stat. 30. While it is the better practice in criminal cases for courts' to caution juries against .too much reliance on the testimony of accomplices and against believing such testimony without corroboration, mere failure to give such an instruction is not reversible error. 220 Fed. Rep. 545; 231 Fed. Rep. 106, affirmed.

These three cases were argued together, and may be disposed of in a single opinion. In each of the cases there was a conviction and sentence for violation of the so-called White Slave Traffic Act of June 25, 1910 (36 Stat. at L. 825, chap. 395, Comp. Stat. 1913, § 8813), the judgments were affirmed by the circuit courts of appeals, and writs of certiorari bring the cases here. In the Caminetti Case, the petitioner was indicted in the United States district court for the northern district of California, upon the 6th day of May, 1913, for alleged violations of the act. The indictment was in four counts, the first of which charged him with transporting and causing to be transported, and aiding and assisting in obtaining transportation for a certain woman from Sacramento, California, to Reno, Nevada, in interstate commerce, for the purpose of debauchery, and for an immoral purpose, to wit, that the aforesaid woman should be and become his mistress and concubine. A verdict of not guilty was returned as to the other three counts of this indictment. As to the first count, defendant was found guilty and sentenced to imprisonment for eighteen months and to pay a fine of $1,500. Upon writ of error to the United States circuit court of appeals for the ninth circuit, that judgment was affirmed. 136 C. C. A. 147, 220 Fed. 545. Diggs was indicted at the same time as was Caminetti, upon six counts, with only four of which are we concerned, inasmuch as there was no verdict upon the last two. The first count charged the defendant with transporting and causing to be transported, and aiding and assisting in obtaining transportation for, a certain woman from Sacramento, California, to Reno, Nevada, for the purpose of debauchery, and for an immoral purpose, to wit, that the aforesaid woman should be and become his concubine and mistress. The second count charged him with a like offense as to another woman (the companion of Caminetti) in transportation, etc., from Sacramento to Reno, that she might become the mistress and concubine of Caminetti. The third count charged him (Diggs) with procuring a ticket for the first-mentioned woman from Sacramento to Reno in interstate commerce, with the intent that she should become his concubine and mistress. The fourth count made a like charge as to the girl companion of Caminetti. Upon trial and verdict of guilty on these four counts, he was sentenced to imprisonment for two years and to pay a fine of $2,000. As in the Caminetti case, that judgment was affirmed by the circuit court of appeals. 136 C. C. A. 147, 220 Fed. 545. In the Hays Case, upon June 26th, 1914, an indictment was returned in the United States district court for the western district of Oklahoma against Hays and another, charging violations of the act. The first count charged the said defendants with having, on March 17th, 1914, persuaded, induced, enticed, and coerced a certain woman, unmarried and under the age of eighteen years, from Oklahoma City, Oklahoma, to the city of Wichita, Kansas, in interstate commerce and travel, for the purpose and with intent then and there to induce and coerce the said woman, and intending that she should be induced and coerced to engage in prostitution, debauchery, and other immoral practices, and did then and there, in furtherance of such purposes, procure and furnish a railway ticket entitling her to passage over the line of railway, to wit, the Atchison, Topeka, & Santa Fe Railway, and did then and there and thereby, knowingly entice and cause the said woman to go and to be carried and transported as a passenger in interstate commerce upon said line of railway. The second count charged that on the same date the defendants persuaded, induced, enticed, and coerced the same woman to be transported from Oklahoma City to Wichita, Kansas, with the purpose and intent to induce and coerce her to engage in prostitution, debauchery, and other immoral practices at and within the state of Kansas, and that they enticed her and caused her to go and be carried and transported as a passenger in interstate commerce from Oklahoma City, Oklahoma, to Wichita, Kansas, upon a line and route of a common carrier, to wit: The Atchison, Topeka, & Santa Fe Railway. Defendants were found guilty by a jury upon both counts, and Hays was sentenced to imprisonment for eighteen months. Upon writ of error to the circuit court of appeals for the eighth circuit, judgment was affirmed (145 C. C. A. 294, 231 Fed. 106). It is contended that the act of Congress is intended to reach only 'commercialized vice,' or the traffic in women for gain, and that the conduct for which the several petitioners were indicted and convicted, however reprehensible in morals, is not within the purview of the statute when properly construed in the light of its history and the purposes intended to be accomplished by its enactment. In none of the cases was it charged or proved that the transportation was for gain or for the purpose of furnishing women for prostitution for hire, and it is insisted that, such being the case, the acts charged and proved, upon which conviction was had, do not come within the statute. It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the lawmaking body which passed it, the sole function of the courts is to enforce it according to its terms. Lake County v. Rollins, 130 U. S. 662, 670, 671, 32 L. ed. 1060, 1063, 1064, 9 Sup. Ct. Rep. 651; Bate Refrigerating Co. v. Sulzberger, 157 U. S. 1, 33, 39 L. ed. 601, 610, 15 Sup. Ct. Rep. 508; United States v. Lexington Mill & Elevator Co. 232 U. S. 399, 409, 58 L. ed. 658, 661, L.R.A.1915B, 774, 34 Sup. Ct. Rep. 337; United States v. First Nat. Bank, 234 U. S. 245, 258, 58 L. ed. 1298, 1303, 34 Sup. Ct. Rep. 846. Where the language is plain and admits of no more than one meaning, the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion. Hamilton v. Rathbone, 175 U. S. 414, 421, 44 L. ed. 219, 222, 20 Sup. Ct. Rep. 155. There is no ambiguity in the terms of this act. It is specifically made an offense to knowingly transport or cause to be transported, etc., in interstate commerce, any woman or girl for the purpose of prostitution or debauchery, or for 'any other immoral purpose,' or with the intent and purpose to induce any such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice. Statutory words are uniformly presumed, unless the contrary appears, to be used in their ordinary and usual sense, and with the meaning commonly attributed to them. To cause a woman or girl to be transported for the purposes of debauchery, and for an immoral purpose, to wit, becoming a concubine or mistress, for which Caminetti and Diggs were convicted; or to transport an unmarried woman, under eighteen years of age, with the intent to induce her to engage in prostitution, debauchery, and other immoral practices, for which Hays was convicted, would seem by the very statement of the facts to embrace transportation for purposes denounced by the act, and therefore fairly within its meaning. While such immoral purpose would be more culpable in morals and attributed to baser motives if accompanied with the expectation of pecuniary gain, such considerations do not prevent the lesser offense against morals of furnishing transportation in order that a woman may be debauched, or become a mistress or a concubine, from being the execution of purposes within the meaning of this law. To say the contrary would shock the common understanding of what constitutes an immoral purpose when those terms are applied, as here, to sexual relations. In United States v. Bitty, 208 U. S. 393, 52 L. ed. 543, 28 Sup. Ct. Rep. 396, it was held that the act of Congress against the importation of alien women and girls for the purpose of prostitution 'and any other immoral purpose' included the importation of an alien woman to live in concubinage with the person importing her. In that case this court said: 'All will admit that full effect must be given to the intention of Congress as gathered from the words of the statute. There can be no doubt as to what class was aimed at by the clause forbidding the importation of alien women for purposes of 'prostitution.' It refers to women who, for hire or without hire, offer their bodies to indiscriminate intercourse with men. The lives and example of such persons are in hostility to 'the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.' Murphy v. Ramsey, 114 U. S. 15, 45, 29 L. ed. 47, 57, 5 Sup. Ct. Rep. 747. . . . Now the addition in the last statute of the words, 'or for any other immoral purpose,' after the word 'prostitution,' must have been made for some practical object. Those added words show beyond question that Congress had in view the protection of society against another class of alien women other than those who might be brought here merely for purposes of 'prostitution.' In forbidding the importation of alien women 'for any other immoral purpose,' Congress evidently thought that there were purposes in connection with the importations of alien women which, as in the case of importations for prostitution, were to be deemed immoral. It may be admitted that, in accordance with the familiar rule of ejusdem generis, the immoral purpose referred to by the words 'any other immoral purpose' must be one of the same general class or kind as the particular purpose of 'prostitution' specified in the same clause of the statute. 2 Lewis's Sutherland, Stat. Constr. § 423, and authorities cited. But that rule cannot avail the accused in this case; for the immoral purpose charged in the indictment is of the same general class or kind as the one that controls in the importation of an alien woman for the purpose strictly of prostitution. The prostitute may, in the popular sense, be more degraded in character than the concubine, but the latter none the less must be held to lead an immoral life, if any regard whatever be had to the views that are almost universally held in this country as to the relations which may rightfully, from the standpoint of morality, exist between man and woman in the matter of sexual intercourse.' This definition of an immoral purpose was given prior to the enactment of the act now under consideration, and must be presumed to have been known to Congress when it enacted the law here involved. (See the sections of the act1 set forth in the margin.) But it is contended that though the words are so plain that they cannot be misapprehended when given their usual and ordinary interpretation, and although the sections in which they appear do not in terms limit the offense defined and punished to acts of 'commercialized vice,' or the furnishing or procuring of transportation of women for debauchery, prostitution, or immoral practices for hire, such limited purpose is to be attributed to Congress and engrafted upon the act in view of the language of § 8 and the report which accompanied the law upon its introduction into and subsequent passage by the House of Representatives. In this connection, it may be observed that while the title of an act cannot overcome the meaning of plain and unambiguous words used in its body (United States v. Fisher, 2 Cranch, 358, 386, 2 L. ed. 304, 313; Goodlett v. Louisville & N. R. Co. 122 U. S. 391, 408, 30 L. ed. 1230, 1233, 7 Sup. Ct. Rep. 1254; Patterson v. The Eudora, 190 U. S. 169, 172, 47 L. ed. 1002, 1003, 23 Sup. Ct. Rep. 821; Cornell v. Coyne, 192 U. S. 418, 430, 48 L. ed. 504, 509, 24 Sup. Ct. Rep. 383; Lapina v. Williams, 232 U. S. 78, 92, 58 L. ed. 515, 520, 34 Sup. Ct. Rep. 196), the title of this act embraces the regulation of interstate commerce 'by prohibiting the transportation therein for immoral purposes of women and girls, and for other purposes.' It is true that § 8 of the act provides that it shall be known and referred to as the 'White Slave Traffic Act,' and the report accompanying the introduction of the same into the House of Representatives set forth the fact that a material portion of the legislation suggested was to meet conditions which had arisen in the past few years, and that the legislation was needed to put a stop to a villainous interstate and international traffic in women and girls. Still, the name given to an act by way of designation or description, or the report which accompanies it, cannot change the plain import of its words. If the words are plain, they give meaning to the act, and it is neither the duty nor the privilege of the courts to enter speculative fields in search of a different meaning. Reports to Congress accompanying the introduction of proposed laws may aid the courts in reaching the true meaning of the legislature in cases of doubtful interpretation (Blake v. National City Bank, 23 Wall. 307, 319, 23 L. ed. 119, 120; Bate Refrigerating Co. v. Sulzberger, 157 U. S. 1, 42, 39 L. ed. 601, 613, 15 Sup. Ct. Rep. 508; Chesapeake & P. Teleph. Co. v. Manning, 186 U. S. 238, 246, 46 L. ed. 1144, 1147, 22 Sup. Ct. Rep. 881; Binns v. United States, 194 U. S. 486, 495, 48 L. ed. 1087, 1090, 24 Sup. Ct. Rep. 816). But, as we have already said, and it has been so often affirmed as to become a recognized rule, when words are free from doubt they must be taken as the final expression of the legislative intent, and are not to be added to or subtracted from by considerations drawn from titles or designating names or reports accompanying their introduction, or from any extraneous source. In other words, the language being plain, and not leading to absurd or wholly impracticable consequences, it is the sole evidence of the ultimate legislative intent. See Mackenzie v. Hare, 239 U. S. 299, 308, 60 L. ed. 297, 300, 36 Sup. Ct. Rep. 106. The fact, if it be so, that the act as it is written opens the door to blackmailing operations upon a large scale, is no reason why the courts should refuse to enforce it according to its terms, if within the constitutional authority of Congress. Such considerations are more appropriately ADDRESSED TO THE LEGISLATIVE BRANCH OF THe government, which alone had authority to enact and may, if it sees fit, amend the law. Lake County v. Rollins, 130 U. S. 673, 32 L. ed. 1064, 9 Sup. Ct. Rep. 651. It is further insisted that a different construction of the act than is to be gathered from reading it is necessary in order to save it from constitutional objections, fatal to its validity. The act has its constitutional sanction in the power of Congress over interstate commerce. The broad character of that authority was declared once for all in the judgment pronounced by this court, speaking by Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed. 23, and has since been steadily adhered to and applied to a variety of new conditions as they have arisen. It may be conceded, for the purpose of the argument, that Congress has no power to punish one who travels in interstate commerce merely because he has the intention of committing an illegal or immoral act at the conclusion of the journey. But this act is not concerned with such instances. It seeks to reach and punish the movement in interstate commerce of women and girls with a view to the accomplishment of the unlawful purposes prohibited. The transportation of passengers in interstate commerce, it has long been settled, is within the regulatory power of Congress, under the commerce clause of the Constitution, and the authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question. Moreover, this act has been sustained against objections affecting its constitutionality of the character now urged. Hoke v. United States, 227 U. S. 308, 57 L. ed. 523, 43 L.R.A.(N.S.) 906, 33 Sup. Ct. Rep. 281, Ann. Cas. 1913E, 905; Athanasaw v. United States, 227 U. S. 326, 57 L. ed. 528, 33 Sup. Ct. Rep. 285, Ann. Cas. 1913E, 911; Wilson v. United States, 232 U. S. 563, 58 L. ed. 728, 34 Sup. Ct. Rep. 347. In the Hoke Case, the constitutional objections were given consideration and denied upon grounds fully stated in the opinion (pages 308 et seq.). It is true that the particular case arose from a prosecution of one charged with transporting a woman for the purposes of prostitution in violation of the act. But, holding as we do, that the purposes and practices for which the transportation in these cases was procured are equally within the denunciation of the act, what was said in the Hoke Case as to the power of Congress over the subject is as applicable now as it was then. After reviewing the Lottery Case (Champion v. Ames) 188 U. S. 321, 357, 47 L. ed. 492, 501, 23 Sup. Ct. Rep. 321, 13 Am. Crim. Rep. 561, and other cases in this court decided since the decision of that case, it was said in the Hoke Case (page 323): 'The principle established by the cases is the simple one, when rid of confusing and distracting considerations, that Congress has power over transportation 'among the several states;' that the power is complete in itself, and that Congress, as an incident to it, may adopt not only means necessary but convenient to its exercise, and the means may have the quality of police regulations. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 215, 29 L. ed. 158, 166, 1 Inters. Com. Rep. 382, 5 Sup. Ct. Rep. 826; Cooley, Const. Lim. 7th ed. 856. We have no hesitation, therefore, in pronouncing the act of June 25, 1910, a legal exercise of the power of Congress.' Notwithstanding this disposition of the questions concerning the construction and constitutionality of the act, certain of the questions made are of sufficient gravity to require further consideration. In the Diggs Case, after referring to the fact that the defendant had taken the stand in his own behalf, and that his testimony differed somewhat from that of the girls who had testified in the case, and instructing the jury that it was their province to ascertain the truth of the matter, the court further said: 'After testifying to the relations between himself and Caminetti and these girls down to the Sunday night on which the evidence of the government tends to show the trip to Reno was taken, he stops short and has given none of the details or incidents of that trip nor any direct statement of the intent or purpose with which that trip was taken, contenting himself by merely referring to it as having been taken, and by testifying to his state of mind for some days previous to the taking of that trip. Now this was the defendant's privilege, and, being a defendant, he could not be required to say more if he did not desire to do so; nor could he be cross-examined as to matters not covered by his direct testimony. But in passing upon the evidence in the case for the purpose of finding the facts you have a right to take this omission of the defendant into consideration. A defendant is not required under the law to take the witness stand. He cannot be compelled to testify at all, and if he fails to do so, no inference unfavorable to him may be drawn from that fact, nor is the prosecution permitted in that case to comment unfavorably upon the defendant's silence; but where a defendant elects to go upon the witness stand and testify, he then subjects himself to the same rule as that applying to any other witness, and if he has failed to deny or explain acts of an incriminating nature that the evidence of the prosecution tends to establish against him, such failure may not only be commented upon, but may be considered by the jury with all the other circumstances in reaching their conclusion as to his guilt or innocence; since it is a legitimate inference that, could he have truthfully denied or explained the incriminating evidence against him, he would have done so.' This instruction, it is contended, was error in that it permitted the jury to draw inferences against the accused from failure to explain incriminating circumstances when it was within his power to do so, and thus operated to his prejudice and virtually made him a witness against himself, in derogation of rights secured by the 5th Amendment to the Federal Constitution. There is a difference of opinion expressed in the cases upon this subject, the circuit court of appeals in the eighth circuit holding a contrary view, as also did the circuit court of appeals in the first circuit. See Balliet v. United States, 64 C. C. A. 201, 129 Fed. 689; Myrick v. United States, 134 C. C. A. 619, 219 Fed. 1. We think the better reasoning supports the view sustained in the court of appeals in this case, which is that where the accused takes the stand in his own behalf and voluntarily testifies for himself (Act of March 16, 1878, 20 Stat. at L. 30, chap. 37, Comp. Stat. 1913, § 1465), he may not stop short in his testimony by omitting and failing to explain incriminating circumstances and events already in evidence, in which he participated and concerning which he is fully informed, without subjecting his silence to the inferences to be naturally drawn from it. The accused, of all persons, had it within his power to meet, by his own account of the facts, the incriminating testimony of the girls. When he took the witness stand in his own behalf he voluntarily relinquished his privilege of silence, and ought not to be heard to speak alone of those things deemed to be for his interest, and be silent where he or his counsel regarded it for his interest to remain so, without the fair inference which would naturally spring from his speaking only of those things which would exculpate him and refraining to speak upon matters within his knowledge which might incriminate him. The instruction to the jury concerning the failure of the accused to explain acts of an incriminating nature which the evidence for the prosecution tended to establish against him, and the inference to be drawn from his silence, must be read in connection with the statement made in this part of the charge which clearly shows that the court was speaking with reference to the defendant's silence as to the trip to Reno with the girls named in the indictment, and as to the facts, circumstances, and intent with which that trip was taken; and the jury was told that it had a right to take into consideration that omission. The court did not put upon the defendant the burden of explaining every inculpatory fact shown or claimed to be established by the prosecution. The inference was to be drawn from the failure of the accused to meet evidence as to these matters within his own knowledge and as to events in which he was an active participant and fully able to speak when he voluntarily took the stand in his own behalf. We agree with the circuit court of appeals that it was the privilege of the trial court to call the attention of the jury in such manner as it did to this omission of the accused when he took the stand in his own behalf. See, in this connection, Brown v. Walker, 161 U. S. 591, 597, 40 L. ed. 819, 821, 5 Inters. Com. Rep. 369, 16 Sup. Ct. Rep. 644; Sawyer v. United States, 202 U. S. 150, 165; 50 L. ed. 972, 979, 26 Sup. Ct. Rep. 575, 6 Ann. Cas. 269; Powers v. United States, 223 U. S. 303, 314, 56 L. ed. 448, 452, 32 Sup. Ct. Rep. 281. It is urged as a further ground of reversal of the judgments below that the trial court did not instruct the jury that the testimony of the two girls was that of accomplices, and to be received with great caution and believed only when corroborated by other testimony adduced in the case. We agree with the circuit court of appeals that the requests in the form made should not have been given. In Holmgren v. United States, 217 U. S. 509, 54 L. ed. 861, 30 Sup. Ct. Rep. 588, 19 Ann. Cas. 778, this court refused to reverse a judgment for failure to give an instruction of this general character, while saying that it was the better practice for courts to caution juries against too much reliance upon the testimony of accomplices, and to require corroborating testimony before giving credence to such evidence. While this is so, there is no absolute rule of law preventing convictions on the testimony of accomplices if juries believe them. 1 Bishop, Crim. Proc. 2d ed. § 1081, and cases cited in the note. Much is said about the character of the testimony adduced and as to certain facts tending to establish the guilt or innocence of the accused. This court does not weigh the evidence in a proceeding of this character, and it is enough to say that there was substantial testimony tending to support the verdicts rendered in the trial courts. Other objections are urged upon our attention, but we find in none of them a sufficient reason for reversing the judgments of the Circuit Courts of Appeals in these cases. The judgment in each of the cases is affirmed. Mr. Justice McReynolds took no part in the consideration or decision of these cases. Undoubtedly, in the investigation of the meaning of a statute we resort first to its words, and, when clear, they are decisive. The principle has attractive and seemingly disposing simplicity, but that it is not easy of application, or, at least, encounters other principles, many cases demonstrate. The words of a statute may be uncertain in their signification or in their application. If the words be ambiguous, the problem they present is to be resolved by their definition; the subject matter and the lexicons become our guides. But here, even, we are not exempt from putting ourselves in the place of the legislators. If the words be clear in meaning, but the objects to which they are addressed be uncertain, the problem then is to determine the uncertainty. And for this a realization of conditions that provoked the statute must inform our judgment. Let us apply these observations to the present case. The transportation which is made unlawful is of a woman or girl 'to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice.' Our present concern is with the words 'any other immoral practice,' which, it is asserted, have a special office. The words are clear enough as general descriptions; they fail in particular designation; they are class words, not specifications. Are they controlled by those which precede them? If not, they are broader in generalization and include those that precede them, making them unnecessary and confusing. To what conclusion would this lead us? 'Immoral' is a very comprehensive word. It means a dereliction of morals. In such sense it covers every form of vice, every form of conduct that is contrary to good order. It will hardly be contended that in this sweeping sense it is used in the statute. But, if not used in such sense, to what is it limited and by what limited? If it be admitted that it is limited at all, that ends the imperative effect assigned to it in the opinion of the court. But not insisting quite on that, we ask again, By what is it limited? By its context, necessarily, and the purpose of the statute. For the context I must refer to the statute; of the purpose of the statute Congress itself has given us illumination. It devotes a section to the declaration that the 'act shall be known and referred to as the 'White Slave Traffic Act." And its prominence gives it prevalence in the construction of the statute. It cannot be pushed aside or subordinated by indefinite words in other sentences, limited even there by the context. It is a peremptory rule of construction that all parts of a statute must be taken into account in ascertaining its meaning, and it cannot be said that § 8 has no object. Even if it gives only a title to the act, it has especial weight. United States v. Union P. R. Co. 91 U. S. 72, 82, 23 L. ed. 224, 229. But it gives more than a title; it makes distinctive the purpose of the statute. The designation 'white slave traffic' has the sufficiency of an axiom. If apprehended, there is no uncertainty as to the conduct it describes. It is commercialized vice, immoralities having a mercenary purpose, and this is confirmed by other circumstances. The author of the bill was Mr. Mann, and in reporting it from the House committee on interstate and foreign commerce he declared for the committee that it was not the purpose of the bill to interfere with or usurp in any way the police power of the states, and further, that it was not the intention of the bill to regulate prostitution or the places where prostitution or immorality was practised, which were said to be matters wholly within the power of the states, and over which the Federal government had no jurisdiction. And further explaining the bill, it was said that the sections of the act had been 'so drawn that they are limited to the cases in which there is an act of transportation in interstate commerce of women for the purposes of prostitution.' And again: 'The White Slave Trade.—A material portion of the legislation suggested and proposed is necessary to meet conditions which have arisen within the past few years. The legislation is needed to put a stop to a villainous interstate and international traffic in women and girls. The legislation is not needed or intended as an aid to the states in the exercise of their police powers in the suppression or regulation of immorality in general. It does not attempt to regulate the practice of voluntary prostitution, but aims solely to prevent panderers and procurers from compelling thousands of women and girls against their will and desire to enter and continue in a life of prostitution.' Cong. Rec. vol. 50, pp. 3368, 3370. In other words, it is vice as a business at which the law is directed, using interstate commerce as a facility to procure or distribute its victims. In 1912 the sense of the Department of Justice was taken of the act in a case where a woman of twenty-four years went from Illinois, where she lived, to Minnesota, at the solicitation and expense of a man. She was there met by him and engaged with him in immoral practices like those for which petitioners were convicted. The assistant district attorney forwarded her statement to the Attorney General, with the comment that the element of traffic was absent from the transaction and that therefore, in his opinion, it was not 'within the spirit and intent of the Mann Act.'2 Replying, the Attorney General expressed his concurrence in the view of his subordinate.3 Of course, neither the declarations of the report of the committee on interstate commerce of the House nor the opinion of the Attorney General are conclusive of the meaning of the law, but they are highly persuasive. The opinion was by one skilled in the rules and methods employed in the interpretation or construction of laws, and informed, besides, of the conditions to which the act was addressed. The report was by the committee charged with the duty of investigating the necessity for the act, and to inform the House of the results of that investigation, both of evil and remedy. The report of the committee has, therefore, a higher quality than debates on the floor of the House. The representations of the latter may indeed be ascribed to the exaggerations of advocacy or opposition. The report of a committee is the execution of a duty and has the sanction of duty. There is a presumption, therefore, that the measure it recommends has the purpose it teclares and will accomplish it as declared. This being the purpose, the words of the statute should be construed to execute it, and they may be so construed even if their literal meaning be otherwise. In Church of the Holy Trinity v. United States, 143 U. S. 457, 36 L. ed. 226, 12 Sup. Ct. Rep. 511, there came to this court for construction an act of Congress which made it unlawful for anyone in any of the United States 'to prepay the transportation, or in any way assist or encourage the importation or migration of any alien or aliens, any foreigner or foreigners, into the United States . . . under contract or agreement . . . to perform labor or service of any kind [italics mine] in the United States, its territories or the District of Columbia.' The Trinity Church made a contract with one E. W. Warren, a resident of England, to remove to the city of New York and enter its service as rector and pastor. The church was proceeded against under the act and the circuit court held that it applied, and rendered judgment accordingly. 36 Fed. 303. It will be observed that the language of the statute is very comprehensive,—fully as much so as the language of the act under review,—having no limitation whatever from the context; and the circuit court, in submission to what the court considered its imperative quality, rendered judgment against the church. This court reversed the judgment, and, in an elaborate opinion by Mr. Justice Brewer, declared that 'it is a familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.' And the learned justice further said: 'This has been often asserted, and the reports are full of cases illustrating its application.' It is hardly necessary to say that the application of the rule does not depend upon the objects of the legislation, to be applied or not applied as it may exclude or include good things or bad things. Its principle is the simple one that the words of a statute will be extended or restricted to execute its purpose. Another pertinent illustration of the rule is Reiche v. Smythe, 13 Wall. 162, 20 L. ed. 566, in which the court declared that if at times it was its duty to regard the words of a statute, at times it was also its duty to disregard them, limit or extend them, in order to execute the purpose of the statute. And applying the principle, it decided that in a tariff act the provision that a duty should be imposed on horses, etc., and other live animals imported from foreign countries should not include canary birds, ignoring the classification of nature. And so again in Silver v. Ladd, 7 Wall. 219, 19 L. ed. 138, where the benefit of the Oregon Donation Act was extended by making the words 'single man' used in the statute mean an unmarried woman, disregarding a difference of genders clearly expressed in the law. The rule that these cases illustrate is a valuable one and in varying degrees has daily practice. It not only rescues legislation from absurdity (so far the opinion of the court admits its application), but it often rescues it from invalidity,—a useful result in our dual form of governments and conflicting jurisdictions. It is the dictate of common sense. Language, even when most masterfully used, may miss sufficiency and give room for dispute. Is it a wonder, therefore, that when used in the haste of legislation, in view of conditions perhaps only partly seen or not seen at all, the consequences, it may be, beyond present foresight, it often becomes necessary to apply the rule? And it is a rule of prudence and highest sense. It rescues from crudities, excesses, and deficiencies, making legislation adequate to its special purpose, rendering unnecessary repeated qualifications, and leaving the simple and best exposition of a law the mischief it was intended to redress. Nor is this judicial legislation. It is seeking and enforcing the true sense of a law notwithstanding its imperfection or generality of expression. There is much in the present case to tempt to a violation of the rule. Any measure that protects the purity of women from assault or enticement to degradation finds an instant advocate in our best emotions; but the judicial function cannot yield to emotion—it must, with poise of mind, consider and decide. It should not shut its eyes to the facts of the world and assume not to know what everybody else knows. And everybody knows that there is a difference between the occasional immoralities of men and women and that syatematized and mercenary immorality epitomized in the statute's graphic phrase 'white slave traffic.' And it was such immorality that was in the legislative mind, and not the other. The other is occasional, not habitual, inconspicuous,—does not offensively obtrude upon public notice. Interstate commerce is not its instrument as it is of the other, nor is prostitution its object or its end. It may, indeed, in instances, find a convenience in crossing state lines, but this is its accident, not its aid. There is danger in extending a statute beyond its purpose, even if justified by a strict adherence to its words. The purpose is studied, all effects measured, not left at random,—one evil practice prevented, opportunity given to another. The present case warns against ascribing such improvidence to the statute under review. Blackmailers of both sexes have arisen, using the terrors of the construction now sanctioned by this court as a help—indeed, the means—for their brigandage. The result is grave and should give us pause. It certainly will not be denied that legal authority justifies the rejection of a construction which leads to mischievous consequences, if the statute be susceptible of another construction. United States v. Bitty, 208 U. S. 393 52 L. ed. 543, 28 Sup. Ct. Rep. 396, is not in opposition. The statute passed upon was a prohibition against the importation of alien women or girls,—a statute, therefore, of broader purpose than the one under review. Besides, the statute finally passed upon was an amendment to a prior statute, and the words construed were an addition to the prior statute, and necessarily, therefore, had an added effect. The first statute prohibited the importation of any alien woman or girl into the United States for the purpose of prostitution [italics mine]. The second statute repeated the words and added 'or for any other immoral purpose.' Necessarily there was an enlargement of purpose, and besides, the act was directed against the importation of foreign corruption, and was construed accordingly. The case, therefore, does not contradict the rule; it is an example of it. For these reasons I dissent from the opinion and judgment of the court, expressing no opinion of the other propositions in the cases. I am authorized to say that the CHIEF JUSTICE and Mr. Justice Clarke concur in this dissent.

243.US.592

Section 237 of the Judicial Code is in effect but a reenactment of § 25 of the Judiciary Act of September 24, 1789, and § 709 of the Revised Statutes. In an action against an ifitial carrier for damage caused by its negligence and negligence of connecting carriers to goods of the plaintiff shipped in interstate commerce on a through bill of lading, the rights and liabilities of the parties are governed by the Carmack Amendment (§ 20 of the Actof June 29, 1906, c. 3591, 34 Stat. 584); and claims of the carrier that failure to give notice as required by the bill of lading relieved it frmm liability, and of the shipper that the requirement was illegal but was substantially complied with, are claims df rights arising under that statute as to which the decision of a'state court may be here reviewed under § 237 of the Judicial Code. When a carrier sued in a state court for damages to an interstate shipment alleges in its answer that notice was not given as required by the bill of lading, the attention of the court is sufficiently challenged to a claim of federal right based on a federal statute, viz., the Carmack Amendment. And when in such case the state court decides that the requirement of the bill of lading is not controlling, it necessarily denies the claim of federal right, in the sense of Judicial Code, § 237. A stipulation in a bill of lading that the carrier's liability for damage to goods shall be contingent. upon notice being given by the consignee is valid if the terms are reasonable; and whether they are reasonable will depend on the circumstances in each case. What constitutes a reasonable time in which notice may be required by the carrier depends on the nature of the goods; in the case of very perishable fruit, thirty-six hours after the consignee has been notified of arrival at the place of delivery is not unreasonable. Neither is it unreasonable to require that the notice shall be in writing in a case wherq by force of the Carmack Amendment the initial carrier is made liable for the defaults of connecting carriers, and the delivering carrier is the initial carrier's agent for the purpose of receiving the notice. In a case of interstate shipment of fruit governed by the Carmack Amendment, before passage of the Act of March 4, 1915, c. 176, 38 Stat. 1196, the bill of lading stipulated that claims for damages must be reported by the consignee in writing to the delivering line within thirty-six hours after notice to the consignee of the arrival of the freight at the place of delivery, and that if such notice were not there given neither the initial carrier nor any of the connecting or intermediate carriers should be liable. The consignee after learning of the arrival of the fruit in badly damaged condition had time and opportunity to serve notice on the agent of the delivering carrier but did not do so. Held: (1) That the stipulation merely required the consignee to give notice within the time fixed of intention to claim damages, without ascertaining and specifying the amount. (2) That the stipulation was reasonable and that non-compliance therewith excused the initial carrier from liability. (3) That verbal notice to a dock master of the delivering carrier did not satisfy the stipulation. 118 Arkansas, 485, affirmed in part and reversed in part.

A motion is made to dismiss the writ of error upon the ground that no Federal question was properly raised in the state court. The disposition of this motion requires a consideration of § 237 of the Judicial Code [36 Stat. at L. 1156, chap. 231, Comp. Stat. 1913, § 1214], which section is in effect but a re-enactment of § 25 of the Judiciary Act of September 24, 1789 [1 Stat. at L. 85, chap. 20], and § 709 of the Revised Statutes of the United States. This suit was brought by Miller, and revived by his administrator, to recover against the initial carrier, the St. Louis, Iron Mountain, & Southern Railway Company, for its negligence and that of connecting carriers in failing to properly refrigerate certain carloads of peaches, shipped from a point in Arkansas to the city of New York, over the lines of the initial and connecting carriers, and in the last-named city delivered upon the dock of the Pennsylvania Company, and found to be in a bad condition. Each shipment was interstate and upon a through bill of lading, the bill containing, among other things, a stipulation that the carrier should not be liable for damages unless claims for damages were reported to the delivering line within thirty-six hours after the consignee had been notified of the arrival of the freight at the place of delivery. In the answer filed in the case, making one of the issues upon which the case was tried and decided, the defendant set up this clause in the bill of lading and the failure of the plaintiff to comply with it. Without now reciting other provisions of § 237, it is enough to say that a case is reviewable in this court where any title, right, privilege, or immunity is claimed under a statute of the United States, and the decision is against the title, right, privilege, or immunity especially set up or claimed by either party under such statute. We have, therefore, to determine three propositions: (1) Was there a right involved which is the creation of a Federal statute? (2) Was it sufficiently set up and called to the attention of the state court so as to be 'especially set up or claimed,' within the meaning of the act? (3) Was the decision against the right set up or claimed under the Federal statute? If these requisites are complied with, the case is reviewable here. 1. On June 29, 1906, Congress passed the so-called Hepburn Act (34 Stat. at L. 584, chap. 3591, Comp. Stat. 1913, § 8592), by § 7 of which it undertook to provide for the liability of carriers in interstate commerce and to subject them, as to interstate shipments, to certain obligations which should supersede the varying requirements of the states through which interstate transportation might be conducted. The construction of this act came before this court in Adams Exp. Co. v. Croninger, 226 U. S. 491, 57 L. ed. 314, 44 L.R.A.(N.S.) 257, 33 Sup. Ct. Rep. 148, and upon full consideration it was held that the effect of the Carmack Amendment was to supersede all legislation in the particular states, and to embrace the liability of the carrier in interstate transportation. It was there said that almost every detail of the subject had been completely covered, and that there could be no rational doubt that Congress intended to take possession of the subject and lay down rules and regulations upon which the parties might rely and have their rights determined by a uniform rule of obligation. Among other things, the act required that the initial carrier should issue a receipt or bill of lading whenever it received property for transportation from a point in one state to a point in another state, and the initial carrier was made liable, not only for the results of its own negligence, but also for loss, damage, or injury to the property occasioned by any common carrier, railroad, or transportation company to which the property should be delivered and over whose line or lines the property might pass; and it was provided that no contract, receipt, rule, or regulation should exempt such initial carrier from the liability imposed by the act. As the shipment in this case was interstate, there can be no question that, since the decision in the Croninger Case, supra, the parties are held to the responsibilities imposed by the Federal law, to the exclusion of all other rules of obligation. Since the Carmack Amendment, the carrier in this case is liable only under the terms of that act of Congress, and the action against it to recover on a through bill of lading for the negligence of connecting carriers as well as of itself was founded on that Amendment. Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, 196, 55 L. ed. 167, 178, 31 L.R.A.(N.S.) 7, 31 Sup. Ct. Rep. 164. This principle has been so frequently recognized in the recent decisions of this court that it is only necessary to refer to some of them. In Southern R. Co. v. Prescott, 240 U. S. 632, 636, 639, 60 L. ed. 836, 838, 839, 36 Sup. Ct. Rep. 469, this court said: 'As the shipment was interstate, and the bill of lading was issued pursuant to the Federal act, the question whether the contract thus set forth had been discharged was necessarily a Federal question. . . . Viewing the contract set forth in the bill of lading as still in force, the measure of liability under it must also be regarded as a Federal question. As it has often been said, the statutory provisions manifest the intention of Congress that the obligation of the carrier with respect to the services within the purview of the statute shall be governed by uniform rule in the place of the diverse requirements of state legislation and decisions.' In Southern Exp. Co. v. Byers, 240 U. S. 612, 614, 60 L. ed. 825, 827, L.R.A.1917A, 197, 36 Sup. Ct. Rep. 410, this court said: 'Manifestly, the shipment was interstate commerce; and, under the settled doctrine established by our former opinions, rights and liabilities in connection therewith depend upon acts of Congress, the bill of lading, and common-law principles accepted and enforced by the Federal courts.' To the same effect, Northern P. R. Co. v. Wall, 241 U. S. 87, 91, 92, 60 L. ed. 905, 907, 908, 36 Sup. Ct. Rep. 493; Georgia, F. & A. R. Co. v. Blish Mill. Co. 241 U. S. 190, 60 L. ed. 948, 36 Sup. Ct. Rep. 541; Cincinnati, N. O. & T. P. R. Co. v. Rankin, 241 U. S. 319, 60 L. ed. 1022, L.R.A.1917A, 265, 36 Sup. Ct. Rep. 555. 2. As to the part of § 237 which deals with rights of this character, it requires that the right, privilege, etc., must be especially set up or claimed in order to make a decision of the state court a proper subject of examination by writ of error from this court. It would be superfluous to review the many decisions in which this court has had occasion to consider the effect of this provision, which has been in the law ever since the passage of the Judiciary Act of 1789 in practically the terms in which it is now embodied in § 237. It is manifest that the object of the provision is to require that the alleged right of a Federal character must in some way be drawn to the attention of the state court so that it may know, or, from the nature of the pleadings, be held to have known, that a Federal right was before it for adjudication. The Carmack Amendment is a Federal statute regulating interstate commerce. It was passed under the power conferred by the Constitution upon Congress to regulate such commerce, and is applicable throughout the United States, and at once became the rule of law governing such shipments in all the courts of the country. Claflin v. Houseman, 93 U. S. 130, 136, 23 L. ed. 833, 838; Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 56 L. ed. 327, 38 L.R.A.(N.S.) 44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 169. Since the passage of the Carmack Amendment, the state court must be held to have known that interstate shipments were covered by a uniform Federal rule which required the issuance of a bill of lading, and that that bill of lading contained the entire contract upon which the responsibilities of the parties rested. This is the result not only of our own holdings, but is universally held in the state courts.2 The Federal right is not required to be pleaded in any special or particular form. It is enough that it be relied upon and in a proper manner called to the attention of the court. Section 237 of the Judicial Code does not require that the statute creating the Federal right shall be especially set up. The courts take judicial notice of the statute. It is the right, privilege, or immunity of Federal origin which must be brought to the attention of the state court. This question has been frequently dealt with in the decisions of this court; under the Judiciary Act of 1789 a case arose which required a consideration of § 25 and the requirements to be observed in order to bring a case within its provisions,—Crowell v. Randell, 10 Pet. 368, 9 L. ed. 458. In that case the requirements of the Judiciary Act and the former decisions of this court were reviewed by Mr. Justice Story. Dealing with this feature of the law, he said: 'That it is not necessary that the question should appear on the record to have been raised, and the decision made in direct and positive terms, ipsissimis verbis; but that it is sufficient if it appears by clear and necessary intendment that the question must have been raised, and must have been decided in order to have induced the judgment.' It is to be noticed, as to the manner of pleading a Federal right, that Mr. Justice Story observed that all that is essential is that it must appear by clear and necessary intendment to have been raised. When the answer in this case set up the requirement of the bill of lading upon which the suit was brought, and the failure to comply with it, that was all that was necessary to fairly challenge the attention of the state court to rights existing by virtue of a Federal statute as to carriers in interstate commerce. In speaking of the necessity of especially setting up Federal rights under § 709 of the Revised Statutes, now § 237 of the Judicial Code, this court said, in Green Bay & M. Canal Co. v. Patten Paper Co. 172 U. S. 58, 67, 43 L. ed. 364, 368, 19 Sup. Ct. Rep. 97: 'But no particular form of words or phrases has ever been declared necessary in which the claim of Federal rights must be asserted. It is sufficient if it appears from the record that such rights were specially set up or claimed in the state court in such manner as to bring it to the attention of that court. '. . . In Roby v. Colehour, 146 U. S. 153, 159, 36 L. ed. 922, 924, 13 Sup. Ct. Rep. 47, it was said that 'our jurisdiction being invoked upon the ground that a right or immunity, specially set up and claimed under the Constitution or authority of the United States, has been denied by the judgment sought to be reviewed, it must appear from the record of the case either that the right so set up and claimed was expressly denied, or that such was the necessary effect in law of the judgment.' 'If it appear from the record, by clear and necessary intendment, that the Federal question must have been directly involved, so that the state court could not have given judgment without deciding it, that will be sufficient.' Powell v. Brunswick County, 150 U. S. 433, 440, 37 L. ed. 1134, 1136, 14 Sup. Ct. Rep. 166; Sayward v. Denny, 158 U. S. 180, 39 L. ed. 941, 15 Sup. Ct. Rep. 777; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581.' In Ferris v. Frohman, 223 U. S. 424, 56 L. ed. 492, 32 Sup. Ct. Rep. 263, it appears that the complainant asserted a copyright in a certain play under the common law and defendant set up the copyright for the play, the performance of which was sought to be enjoined, which copyright was issued under the laws of the United States. The state court enjoined the defendant from using that copyright, and it was held that was sufficient to show that a Federal right had been set up and denied, as the copyright of the defendant was derived under the Federal law. That the controversy raised a Federal question was held by this court and the contrary contention disposed of in the following language: 'The defendants in error contest the jurisdiction of this court upon the ground that the bill was based entirely upon a common-law right of property, and insist that the upholding of this right by the state court raises no Federal question. But the complainants sued, not simply to maintain their common-law right in the original play, but, by virtue of it, to prevent the defendant from producing the adapted play which he had copyrighted under the laws of the United States. They challenged a right which the copyright, if sustainable, secured. Rev. Stat. § 4952. It was necessary for them to make the challenge, for they could not succeed unless this right were denied. Ferris stood upon the copyright. That it had been obtained was alleged in the bill, was averred in the answer, and was found by the court. The fact that the court reached its conclusion in favor of the complainants by a consideration, on common-law principles, of their property in the original play, does not alter the effect of the decision. By the decree Ferris was permanently enjoined 'from in any manner using, . . . selling, producing, or performing . . . the said defendant's copyrighted play hereinbefore referred to for any purpose.' The decision thus denied to him a Federal right specially set up and claimed within the meaning of § 709 of the Revised Statutes of the United States. This court, therefore, has jurisdiction. Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 561, 580, 581, 50 L. ed. 596, 604, 605, 26 Sup. Ct. Rep. 341, 4 Ann. Cas. 1175; McGuire v. Massachusetts, 3 Wall. 382, 385, 18 L. ed. 164, 165; Anderson v. Carkins, 135 U. S. 483, 486, 34 L. ed. 272, 274, 10 Sup. Ct. Rep. 905; Shively v. Bowlby, 152 U. S. 1, 9, 38 L. ed. 331, 335, 14 Sup. Ct. Rep. 548; Northern P. R. Co. v. Colburn, 164 U. S. 383, 385, 386, 41 L. ed. 479, 480, 17 Sup. Ct. Rep. 98; Green Bay & M. Canal Co. v. Patten Paper Co. 172 U. S. 58, 67, 68, 43 L. ed. 364, 368, 369, 19 Sup. Ct. Rep. 97.' In Creswill v. Grand Lodge, K. P. 225 U. S. 246, 258, 56 L. ed. 1074, 1078, 32 Sup. Ct. Rep. 822, the defendants were enjoined from using their corporate name, and it was held that, as this right or privilege was derived under a statute of the United States, authorizing the incorporation, the case was reviewable here under § 237 of the Judicial Code. In St. Louis, I. M. & S. R. Co. v. McWhirter, 229 U. S. 265, 57 L. ed. 1179, 33 Sup. Ct. Rep. 858, where a suit was brought to recover for a death occurring while plaintiff's intestate was engaged in interstate commerce, it was held that the question of the amount of evidence necessary to establish a liability was inherently of a Federal character, and that this court might review the decision of the state court for that reason. 3. The other requisite essential to bring the case within § 237 of the Judicial Code is that the alleged Federal right must be denied. It has never been required that a Federal right must be denied in terms, but it has been uniformly held that it is sufficient if the state court necessarily denied it in the judgment rendered. If the plaintiff, in bringing this suit to recover against the initial carrier, not only for its own negligence, but for that of the intervening carriers in the failure to care for and deliver the several cars of peaches, had said in terms that the suit was thus brought upon a through bill of lading because of the Federal statute giving the right to thus prosecute the action, no one would doubt that the Federal question was brought to the attention of the state court; when the plaintiff set forth facts which necessarily showed that a suit could only be maintained because of rights given under the Carmack Amendment, upon a bill of lading required by that act, it was unnecessary to further label the cause of action by specific reference to the Federal statute. Jones Nat. Bank v. Yates, 240 U. S. 541, 550, 551, 60 L. ed. 788, 796, 797, 36 Sup. Ct. Rep. 429. So, when the defendant set up the breach of the through bill of lading, and insisted that it had not been complied with, he would have made his case no stronger for the purposes of review here had specific reference been made to the Federal statute which made this bill of lading the sole rule of obligation between the parties. This record presented a suit which showed that it was necessarily brought under rights conferred by a Federal act; the defendant specifically pleaded the failure to keep the obligation of the contract whose force was binding by virtue of such act; and the state court, in stating in its decision that this bill of lading had been issued, and would be controlling in the absence of special facts which it found as to the effect of verbal notice given to certain agents of the Pennsylvania Company in New York, necessarily denied the contention of Federal right made by the defendant that the provision of the bill of lading was conclusive of the rights of the parties in this case, and required written notice within thirty-six hours after notice to the consignee of the delivery of the goods. For these reasons the case is properly reviewable here. 'Claims for damages must be reported by consignee, in writing, to the delivering line within thirty-six hours after the consignee has been notified of the arrival of the freight at the place of delivery. If such notice is not there given, neither this company nor any of the connecting or intermediate carriers shall be liable.' Five of the cars arrived at Jersey City and were lightered over to Pier 29 in the evening, where they were opened and unloaded by the longshoremen of the Pennsylvania Company. The record shows that the course of business at the dock where these peaches were delivered is: At midnight a bulletin is put up showing the car numbers and consignees. At 1 o'clock in the morning the dock is opened to the dealers, usually present in large unmbers, who then go upon it and find their shipments. Miller testified that he had to get trucks to take the peaches to his store, and then had to get extra men to sort and repack them so that they could be sold the following day, and that he could not tell within two or three days and until his bookkeeper had figured up what was going to be lost on each car, what the amount of the damage was, and in some cases it would be three or four or five days after the car arrived before he knew. Miller further testified that, by reason of a warning from the Health Department that it would destroy ensuing shipments of fruit if they arrived in as bad condition as those in preceding cars, he had the railroad company, upon the arrival of the other five cars in Jersey City, unload them and take the peaches to the Merchants Refrigerating Company's plant, where he had them sorted and repacked and then loaded on cars and taken over to Pier 29 for sale. He testified that he was notified of the cars' arrival and went over to the Refrigerating Company; that he put a lot of men at work sorting and repacking the peaches; that it would take from two to four days to do this and another day to put them on board the cars and get them over to Pier 29 and sold, and it would be another day before the reports of sale could be made up. The state court held that the stipulation, in view of the perishable character of these shipments, was a reasonable one, but as there was proof in the case to show the knowledge of the superintendent of the dock of the Pennsylvania Company, where delivery was made, as to five cars of peaches, that as to such cars the necessity of notice was dispensed with, notwithstanding the requirement of the bill of lading. As to the other cars involved in the cross writ of error, Case No. 796, the court held that the only knowledge of the condition of the peaches was that of longshoremen working on the dock, and not under duty to inspect the fruit, and that as to such cars the action must fail. Stipulations of this character have not infrequently been inserted in bills of lading, and, where reasonable in their terms, have been sustained by this court. Southern Exp. Co. v. Caldwell, 21 Wall. 264, 22 L. ed. 556; The Queen of the Pacific, 180 U. S. 49, 45 L. ed. 419, 21 Sup. Ct. Rep. 278. Whether such stipulations are reasonable or not depends on the circumstances of each case. Pennsylvania Co. v. Shearer, 75 Ohio St. 249, 116 Am. St. Rep. 730, 79 N. E. 431, 9 Ann. Cas. 15. We agree with the supreme court of Arkansas that, in view of the highly perishable nature of this shipment and the necessity of giving notice promptly in order that the carrier might have an opportunity to examine the same and determine the nature and extent of the injury thereto before the fruit was sold or destroyed, the stipulation requiring notice of such intention within the time named in the bill was not unreasonable. What constitutes reasonable time in which notice may be required must depend on the nature of the freight; and, if such notice is to be of service in cases like the present, it must be given promptly. In Northern P. R. Co. v. Wall, 241 U. S. 87, 91, 92, 60 L. ed. 905, 907, 908, 36 Sup. Ct. Rep. 493, this court dealt with the requirement of a bill of lading that the shipper must, as a condition precedent to his right of recovery for injury to cattle in transit, give notice in writing to some officer or agent of the initial carrier before the cattle were removed from the place of destination, and held that such requirement must be complied with by giving notice to the agent of the delivering carrier, as the Carmack Amendment makes such carrier for this purpose the agent of the initial carrier. And see Chesapeake & O. R. Co. v. McLaughlin, 242 U. S. 142, 61 L. ed. 207, 37 Sup. Ct. Rep. 40. The Carmack Amendment requires the receiving carrier to issue a through bill of lading, and makes that bill of lading the contract of shipment, and the initial carrier is made liable for injuries in the course of transit over connecting lines. The requirement that notice in writing of a claim for damages shall be given in such cases to the delivering carrier, who is the agent of the initial carrier for the purpose of completing the shipment, is but reasonable. In Georgia, F. & A. R. Co. v. Blish Mill. Co. 241 U. S. 190, 60 L. ed. 948, 36 Sup. Ct. Rep. 541, it was held that a stipulation of this kind was complied with when the notice in writing was given by telegram within the time named in the bill of lading. It is not difficult for the consignee to comply with a requirement of this kind, and give notice in writing to the agent of the delivering carrier. Such notice puts in permanent form the evidence of an intention to claim damages, and will serve to call the attention of the carrier to the condition of the freight, and enable it to make such investigation as the facts of the case require while there is opportunity so to do. In this case no attempt was made to give such notice in writing to the agent of the delivering carrier. The record shows the delivering carrier had a freight agent at the place of delivery in charge of the docks upon which the peaches were delivered, and he testifies without contradiction that no such notice was given to him; that he was acquainted with Adam Miller, the consignee, a commission merchant in New York city; and that he never heard of any claim for damages until after the beginning of the present suit. The fact that the peaches were greatly depreciated was known to the consignee very shortly after arrival and within sufficient time to have enabled him to give notice in writing within the time fixed of his intention to claim damages. It is true that the record contains testimony tending to show that it would take more than thirty-six hours to separate the good peaches from the bad, and to re-crate and sell the good ones. But the bill of lading in this case only requires that 'claims for damages must be reported by the consignee, in writing, to the delivering line' within the time named. This bill of lading contained no stipulation requiring a specific claim to be filed within thirty-six hours, fixing the amount of damages to be claimed. It was entirely consistent with this requirement, on discovery of the bad condition of the peaches, to have given notice within the time stipulated of the intention to make a claim for damages, although the exact amount of the claim might not have been ascertained. This would have given an opportunity for the delivering carrier to make the examination which it was the principal purpose of the stipulation to afford. Northern P. R. Co. v. Wall, supra; St. Louis, & S. F. R. Co. v. Keller, 90 Ark. 308, 313, 119 S. W. 254, 21 Am. Neg. Rep. 522. As was said in the Keller Case: 'The contract of shipment in this case specifically provided that, before a recovery could be had, a notice in writing must be given of loss or damage within thirty hours after the arrival of the peaches at destination and their delivery; that is to say, a notice of the intention to claim damages must be so given. And in this case such notice was not given.' Compliance with the requirement of the bill of lading in this respect would leave a right of recovery within the period named by the Statute of Limitations if the shipper has a good cause of action. Pennsylvania Co. v. Shearer, 75 Ohio St. 254, 116 Am. St. Rep. 730, 79 N. E. 431, 9 Ann. Cas. 15, supra. We find nothing unreasonable in the stipulation concerning notice, and there was no attempt made to comply with it. We therefore think the supreme court of Arkansas erred in holding that verbal notice to the dockmaster of the condition of the peaches was a compliance with the terms of the contract. We may note that this case arose before the passage of the Act of March 4, 1915 (38 Stat. at L. 1196, chap. 176), regulating, among other things, this feature of a bill of lading issued under the Carmack Amendment. On cross writ of error, No. 796, a reversal is sought of the judgment of the Supreme Court of Arkansas as to the five cars where the damaged condition of the peaches was shown to be known to the longshoremen. This cross writ involves the liability of the carrier under the bill of lading, and it is assigned for error that the stipulation in question violates the act of Congress known as the Hepburn Act and the Carmack Amendment, and there are other reasons assigned for the alleged invalidity of the stipulation in the bill of lading. This court has jurisdiction upon the cross writ. As to these cars, we think the conclusion reached by the Supreme Court of Arkansas was a correct one, and upon the cross writ of error the judgment is affirmed. As to No. 275, the writ sued out by the railroad company, the judgment of the Supreme Court of Arkansas is reversed, and the cause remanded to that court for further proceedings not inconsistent with the opinion of this court.

246.US.208

An attempt to establish settlement by stealth and retain it by force against one who is in peaceable possession of public lands bona fide claiming them is not countenanced by the Homestead Law. One who would acquire under the Homestead Law unappropriated public lands which are in the peaceable possession of another, is subject to the law of the State against stealthy entries and forcible detainers and providing for summary restoration of possessions so displaced without inquiry into the title or right of possession. Such a case presents no conflict between the state and federal law. An enclosure of public land, accompanied by actual possession under claim of right and color of title,,i n good faith, is not obnoxious to the Fence Act of February 25, 1885, c. 149, 23 Stat. 321, nor subject, under the Homestead Law, to be broken and entered for the purpose of initiating a homestead claim. 85 Washington, 322; 91 Washington, 693, affirmed.

These cases involve the same opints; the second was decided below upon authority of the first. Ridpath v. Denee, 85 Wash. 322, 148 Pac. 15; Morrison v. Gunning, 91 Wash. 693, 157 Pac. 1199. It will suffice briefly to state and indicate our opinion in respect of the federal questions as raised in No. 147. The following portions of Remington & Ballinger's Ann. Codes & Stats. of Washington are in force as law in that state: 'Sec. 811. Every person is guilty of a forcible detainer who either,—— '1. By force, or menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise; or '2. Who in the nighttime, or during the absence of the occupant of any real property [unlawfully] enters thereon, and who, after demand made for the surrender thereof, refuses for the period of three days to surrender the same to such former occupant. The occupant of real property within the meaning of this subdivision is one who, for the five days next preceding such unlawful entry, was in the peaceable and undisturbed possession of such real property.' 'Sec. 825. On the trial of any proceeding for any forcible entry or forcible detainer, the plaintiff shall only be required to show, in addition to a forcible entry complained of, that he was peaceably in the actual possession at the time of the forcible entry; or in addition to a forcible detainer complained of, that he w § entitled to the possession at the time of the forcible detainer.' Relying upon these sections, defendant in error instituted an action of forcible detainer in the superior court for Spokane county, alleging that while he was (and for more than five days had been) in peaceful and undisturbed possession of certain lands inclosed by a good and substantial fence plaintiff in error in the nighttime 'broke the inclosure above mentioned around said above-described premises and entered thereon, and has since said entry continuously occupied and remained upon said premises,' and has refused to surrender them. He asked restitution and damages. By answer and also by tender of proof plaintiff in error unsuccessfully sought to set up and show that the lands belonged to the United States (having never been granted) were unlawfully inclosed and that he entered in order to initiate a homestead claim. The Supreme Court affirmed a judgment granting relief asked by defendant in error. 85 Wash. 322, 325, 326, 327, 328, 148 Pac. 15, 16. It found that for more than 20 years he had been in peaceful possession of the lands which were fenced and under cultivation, and that at night plaintiff in error broke the inclosure, entered, and refused to remove. After quoting the two sections set out above, the court said: 'These statutes are clearly peace statutes, and the issues in a case of this kind are but two: First. Was the plaintiff, for five days prior to the entry of the defendant, in the peaceable and actual possession of the land? and, second, Was the entry of the defendant a forcible entry and an unlawful detainer? The statute makes no provision for the trial of title or the right of possession in such a case. Other remedies are afforded by other statutes to try title or right of possession. This statute does not contemplate that a person, even though he be entitled to possession, may, by force or stealth, obtain possession, and thereby put upon the plaintiff the burden of proving the paramount title or a paramount right of possession.' Replying to insistence that the premises were unappropriated public lands which a qualified citizen might rightfully enter upon and improve under laws of the United States (R. S. § 2289 et seq. [Comp. St. 1916, § 4530 et seq.]) and the state statutes concerning unlawful or forcible detainer interfered therewith, the court declared: 'It is clear, we think, that there is no conflict between the state statutes and the United States statutes. The United States statutes have made no provision for determining conflicting rights under claim of possession, but the determination of these rights is left to the states to be regulated by state statutes. * * * Gauthier v. Morrison, 232 U. S. 452, 461 [34 Sup. Ct. 384, 58 L. Ed. 680]. * * * The question in this case was whether the respondent was in the peaceable and quiet possession of the real estate at the time of the forcible entry and unlawful detainer. If he was in the peaceable and quiet possession, then it follows, of course, that the appellant could not, by force or by unlawful entry in the nighttime, dispossess him of that peaceable possession. As stated above, neither could the question of title, or the paramount right of possession, be determined in this action. There is clearly no conflict between the federal and the state laws upon this question.' This answer, we think, is sufficient, and nothing need be added. To the further claim that the premises were fenced contrary to Act Feb. 25, 1885, c. 149, 23 Stat. 321, 322, and consequently plaintiff in error could properly break inclosure and enter in order to initiate a homestead claim, the court replied: 'It is plain that the legal right of the parties to the possession of these lands cannot be tried in this action. But if the same could be tried, the appellant did not seek to show, either that the respondent was in possession of this particular tract of land without claim of right or color of title, or in bad faith, for it was apparen ly conceded that the respondent, or his tenant, was in actual possession of the tract of land in dispute, and that the respondent had purchased the land at a fair price and was in possession thereof claiming to be the owner. * * * Cameron v. United States, 148 U. S. 301, 305 [13 Sup. Ct. 595, 37 L. Ed. 459]. * * * Even though the respondent had inclosed the land claimed to have been inclosed, such inclosure was not necessarily unlawful, because the inclosure is not prohibited where it is under claim of right or color of title. The record in this this case conclusively shows that the respondent was holding the land, which was surrounded by fence, under claim of right and color of title, and he and his predecessors had so held it for more than 20 years.' This reply we also think is correct and adequate. In Lyle v. Patterson, 228 U. S. 211, 215, 216, 33 Sup. Ct. 480, 482 (57 L. Ed. 804), we held a possessory title may be good as against all except the United States and pointed out the evil consequences which would 'result if possession secured by violence and maintained with force and arms could furnish the basis of a right enforceable in law.' There is no error in either of the judgments below in respect of any federal question and both are Affirmed.

244.US.522

Greene v. Louisville & Interurban R. R. Co., ante, 499, followed in holding: (1). That the federal court has power to decide all questions, its jurisdiction being properly invoked on federal grounds, (2) that this suit, to restrain subordinate state officers from enforcing an unlawful and discriminatory assessment made under color of a valid state law, is not a suit against the State, (3) that plaintiff has not an adequate remedy at law under § 162, Ky. Stats., (4) that unlawful discrimination in taxation resulting from general, systematic undervaluations of other property is remediable by the courts, and (5) that whether such an assessment violates the "equal protection" clause of the Fourteenth Amendment need not be decided by the federal court when full relief is grantable under the state constitution and laws. The right to relief by injunction against unlawful discrimination by taxing officials exists in respect of state, as well as local, taxes; if what was said in Coulter v. Louisville & Nashville R. R. Co., 196 U. S. 599, 608, imports that an injunction can under no circumstances be awarded with respect to state taxes, it must be deemed to have been overruled by Raymond v. Chicago Union Traction Co., 207 U. S. 20. Proof comprising a body of official admissions and direct and circumstantial evidence from unimpeached public, and private sources, and which fully sustains a finding that the great mass of property in Kentucky, embracing all tangible property except railroad property and distilled spirits--during a period of years-was systematically and notoriously assessed at not exceeding 60 per cent. of its fair cash value, Held not overcome by general presumptions arising from the duty of assessors to assess at fair cash value, or by numerous stereotyped affidavits of former assessors asseverating their obedience thereunto. The findings of an official body such as the Kentucky Board of Valuation and Assessment, made after a hearing and upon notice'to the taxpayer, are quasi-judicial and, in the absence of fraud, are not to be set aside or disregarded by courts unless it is made to appear that the body proceeded upon an erroneous principle, or adopted an improper mode of estimating value. Under the Kentucky law respecting the taxation of the intangible property of railroad and other public service corporations (§§ 40774081, Ky. Stats.), the particular method to be pursued by the Board of Valuation and Assessment in ascertaining from the evidence the value of the "capital stock" (i. e., the entire tangible and intangible property) of a railroad system, partly within and partly outside of the State, is left to the sound discretion of the Board. In estimating the value of plaintiff's "capital stock," the Kentucky Board of Valuation and Assessment capitalized the plaintiff's income upon a 6 per cent. basis and, in excluding shares held by plaintiff in other corporations owning and paying taxes on property in Kentucky, it estimated their value in the same way, i. e., by capitalizing on a 6 per cent. basis the income derived therefrom. Held: (1) That this method of valuing the shares could not be held fundamentally wrong, although there was evidence that their intrinsic value was much greater than the estimate thus obtained. (2) That the adoption of the 6 per cent. rate instead of a higher, "composite" rate, based on the mileage of plaintiff's railroad in each of thirteen States and the -legal rates of interest in those States, respectively, was likewise a matter for the judgment of the Board. Section 4081, Ky. Stats., as amended by the Act of June 9, 1893, in providing that the ratio of intrastate to total mileage of any inferstate railroad "shall be considered" by the Board of Valuation and Assessment in fixing the value of its corporate franchise (intangible property) liable to taxation in the State, does not require the Board to apportion the value of the railroad's property upon a strict mileage basis, but merely to consider relative mileage, among other pertinent factors, in the process of valuing that proportion of the property which is situate within the State. Section 4081, supra, applies to both foreign and domestic corporations, and is not to be construed as requiring the taxation of tangible assetq outside of the State, which, clearly as to foreign corporations, would render it obnoxious to the due process clause of the Fourteenth Amendment. Under § 4081, supra, the apportionment of "capital stock" to Kentucky is first made upon a mileage basis (with such allowances as may be required because of unequal distribution of tangible property within and without the State), and the value of the tangible property in the State is then subtracted and the tax computed on the difference, representing the intangible property in Kentucky. Total assets, situate partly within and partly without a State, but organically related, may be taken into consideration as a means of reaching the true cash value of the part within the State, and in the case of a railroad, the mileage factor may be given its proper weight. Section 4081, supra, requires the Board to take into consideration not only the mileage -operated, but also the mileage controlled, by the railroad company within and without the State. Under §§ 4079, 4081, supra, in determining the percentage apportionable to Kentucky, the whole of the controlled mileage within and without the State is to be treated as part of the aggregate "capital stock," not only in fixirg the mileage, but also in fixing the valuation, upon which the apportionment is based. To avoid double assessments, the value of so much of the controlled mileage as is within Kentucky, and therefore separately assessed in that State, should be deducted (in addition to the value of the tangible property there situate), from the Kentucky apportionment of the "capital stock." A supplemental bill, filed, after hearing and decision, by permission of the court but apparently disregarded, is not to be taken as confessed by the defendant for want of answer, when no rule to answer was made upon him and his failure to do so is not explained by the record; nor, in the silence of the record, is error to be imputed to the trial court for not paying heed to material allegations thus presented. A party attacking a tax assessment is not to be held in default for omission to introduce evidence on matters which were not deemed material by the taxing authority or in the litigation until found so by the judge in his decision. It being shown that the valuation made by a taxing board was the result of following a method substantially erroneous because not in accordance with the governing statute, it is error for the court to presume that a like valuation would have been reached by following the correct method. 230 Fed. Rep. 191, reversed in part and affirmed in part.

These cases are an appeal and a cross appeal from a final decree of the district court in a suit that was commenced by the Louisville & Nashville Railroad Company, a Kentucky corporation, against Henry M. Bosworth and others, then constituting the Board of Valuation and Assessment of that state (Bosworth being also auditor of public accounts), and against the attorney general of the state and his assistants, seeking to restain the taking of any steps toward enforcing state and local taxes upon the basis of an assessment of the 'franchise' of the company for the year 1913, made by the Board of Valuation and Assessment at the sum of $45,658,630, or upon the basis of any greater valuation than $22,899,200; and this upon the ground that the assessment was unlawful and not in accordance with the statute, was the result of an abuse of power by the Board of Valuation and Assessment, and if enforced would result in a taking of plaintiff's property without due process of law and a denial of the equal protection of the laws, contrary of § 1 of the 14th Amendment. By a supplemental bill, Robert L. Greene and others were brought in as successors in office of the original defendants. There being no diversity of citizenship, the jurisdiction was rested upon the ground that the suits arose under the cited provisions of the Federal Constitution; but plaintiff relied also upon the provisions of the Constitution and laws of the state. A chief ground of complaint, based upon the equal protection provision of the 14th Amendment, and also upon the requirement of equal taxation prescribed by §§ 171, 172, and 174 of the state Constitution,1 was that the plaintiff had been subjected to illegal discrimination, in that its property had been assessed at more that its actual value, whereas the property of all other taxpayers in the state was assessed uniformly and intentionally at much less than actual value; in fact, at not exceeding 60 per cent thereof. It was alleged, besides, that the method of assessment followed by the Board of Valuation was inconsistent with the provisions of the statutes of Kentucky, and for that further reason the assessment was illegal. A previous suit of the same character had been brought by the same plaintiff in the same court for relief against the assessment for the year 1912, in which, after a hearing on motion for preliminary injunction and demurrer to the bill, the court delivered a very elaborate opinion, allowing a temporary injunction upon condition that plaintiff should pay franchise taxes to the state and subordinate taxing districts upon a valuation of $22,899,200. Louisville & N. R. Co. v. Bosworth, 209 Fed. 380, 465. Following this precedent, the court, upon the filing of the bill in the present case, allowed a preliminary injunction upon the payment of taxes, based upon the same valuation. The cause proceeded to final hearing, and the court, having found plaintiff to have been subjected to discrimination by the valuing of other property at approximately 60 per cent of actual values, but having overruled the other grounds of relief asserted, applied an equalizing factor to the valuation of plaintiff's franchise, with the result of finding $25,808,493.60 to be the amount at which it was legally taxable, or $2,909,293.60 in excess of the amount upon which payment was made at the inception of the suit. Therefore a final decree was made enjoining defendants from enforcing the assessment complained of, on condition that plaintiff should pay taxes, state and local, on the excess amount named. 230 Fed. 191, 232. Plaintiff appealed to this court upon the ground that it ought not to be required to pay franchise taxes upon any amount in excess of $22,899,200. Defendants took a cross appeal upon the ground that plaintiff was entitled to no relief. The cases were argued together with kindred cases this day decided, viz., Nos. 617 & 618, Greene v. Louisville & Interurban R. Co. 244 U. S. 499, 61 L. ed. ——, 37 Sup. Ct. Rep. 673, and Nos. 642-645, Illinois C. R. Co. v. Greene, 244 U. S. 555, 61 L. ed. ——, 37 Sup. Ct. Rep. 697. There are numerous assignments of error by each party, but, without specifying these, the questions raised will be disposed of in the order of convenience. Of course, the Federal jurisdiction, having been invoked upon substantial grounds of Federal law, extends to the determination of all questions involved in the case, whether resting upon state or Federal law. Siler v. Louisville & N. R. Co. 213 U. S. 175, 191, 53 L. ed. 753, 757, 29 Sup. Ct. Rep. 451; Ohio Tax Cases, 232 U. S. 576, 586, 58 L. ed. 737, 743, 34 Sup. Ct. Rep. 372. It may be premised that plaintiff owns and operates a great system of railroads extending throughout Kentucky and twelve other states, embracing (in the year in question) roads operated on its own account to the extent of 4,478.61 miles, of which 1,574.47 miles, or 35.15 per cent, were in Kentucky, and an aggregate of roads owned, operated, and controlled, extending to 7,907.83 miles, of which 1,952.45 miles, or 24.69 per cent, were in Kentucky. It is subject to taxation in Kentucky upon its tangible property as assessed by the State Railroad Commission, and, in addition, to taxation, state and local, upon its intangible property or 'franchise' under § 4077, Ky. Stat. and succeeding sections (set forth below in margin), the valuation to be fixed by the Board of Valuation and Assessment. (1) Defendants contend that the District court was without jurisdiction because the suit was in effect a suit against the state of Kentucky. It is said that the sole basis of a suit to enjoin state officers from the performance of duties pursuant to a statute must be that the statute itself is unconstitutional; that, since the statute in question here is constitutional, an action may not be maintained in a court of the United States (there being no diversity of citizenship) for what is done by subordinate officers of the state in executing the statute in an unconstitutional manner; and that for misconduct of this sort there is no remedy except in the state courts. These contentions are disposed of adversely in Greene v. Louisville & Interurban R. Co. supra. (2) It is contended that the plaintiff has an adequate remedy at law under § 162, Ky. Stat. This likewise is negatived by the case just mentioned. (3) It is urged that, although it be true that the local assessors in each county assessed other property at less than its cash value, plaintiff is not entitled to relief for this reason if its property was not assessed at more than its fair cash value, even though it was assessed at a higher percentage than other property. To this the same answer may be made. The facts found in this case bring it within the ruling that, in the case last mentioned, was made upon admitted facts, because of the provisions of the Constitution and laws of the state. In this case, as in that, we find it unnecessary to pass upon the merits of the question whether a like result would be reached by the application of the 'equal protection' clause of the 14th Amendment. (4) It is contended that although there be jurisdiction to enjoin the apportioning of the assessment among the counties, cities, and towns for the purpose of local taxation, it was erroneous to enjoin state taxation based upon the same assessment. So far as this is bottomed upon the theory that the suit is a suit against the state, it is disposed of by the decision cited. It is argued, however, that while this court has held that in a proper case a bill may be brought to restrain apportionment and certification to the counties of a tax imposed by a state board in violation of Federal rights (Fargo v. Hart, 193 U. S. 490, 48 L. ed. 761, 24 Sup. Ct. Rep. 498), yet Coulter v. Weir, 62 C. C. A. 429, 127 Fed. 897, 906, 912,—a case that arose out of the same provisions of the Kentucky statutes that are here involved,—is an authority in opposition to granting relief against the state taxes, and that it was approved by this court in Coulter v. Louisville & N. R. Co. 196 U. S. 599, 608, 49 L. ed. 615, 617, 25 Sup. Ct. Rep. 342. What was said upon the subject in the case last mentioned was not a part of the matter decided, as a reference to the opinion clearly shows; for the decision in favor of defendants proceeded upon the ground that the evidence was insufficient to sustain the bill. Coulter v. Weir, supra, is easily distinguishable. There, the auditor of public accounts was the sole defendant. The circuit court of appeals, after citing Poindexter v. Green-how, 114 U. S. 270, 286-288, 29 L. ed. 185, 191, 192, 5 Sup. Ct. Rep. 903, 962; Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 390, 38 L. ed. 1014, 1021, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047; Scott v. Donald, 165 U. S. 107, 112, 41 L. ed. 648, 653, 17 Sup. Ct. Rep. 262; Smyth v. Ames, 169 U. § 466, 518, 42 L. ed. 819, 839, 18 Sup. Ct. Rep. 418; Fitts v. McGhee, 172 U. S. 516, 529, 43 L. ed. 535, 541, 19 Sup. Ct. Rep. 269; and Taylor v. Louisville & N. R. Co. 31 C. C. A. 537, 60 U. S. App. 166, 88 Fed. 350, and quoting from the opinion in the Taylor Case to the effect that a suit against individuals, seeking to enjoin them from doing certain acts which they assert to be by authority of the state, but which complainants aver to be without lawful authority, is not a suit against the state, and from Fitts v. McGhee to the effect that a suit against state officers not holding any special relation to the particular statute alleged to be unconstitutional, nor charged with its enforcement, is a suit merely to test the constitutionality of a state statute, and therefore is a suit against the state, proceeded (p. 906) to sustain the action only so far as it sought to enjoin the defendant from certifying to the county clerks the assessment complained of. The contrary result reached with respect to the tax due to the state went solely upon the ground that, as to this tax, the auditor had no act to perform under the statute and no authority to enforce collection; the court proceeding to say further (p. 907): 'If the defendant had been about to take some step under color of the law, tending to complete the assessment, or if he had been authorized to seize property and was about to do so, then he was, assuming the case to be with the complainants on the merits, about to commit a trespass for which he would be individually liable, and in a proper case equity might enjoin his proposed action upon the ground of his want of legal authority. But this is not the case made in respect to the tax due the state, and the bill, so far as it sought relief against the state tax, must be dismissed without regard to the merits.' It would seem that the court overlooked §§ 144, 145, and 152, Ky. Stat., which require the auditor to keep account of taxes collected, keep a correct list of balances due by individuals to the commonwealth, audit and enter in account all demands payable at the treasury, report to the attorney general all public debtors who fail to render their accounts at the proper time or to pay the money in their hands due the commonwealth into the treasury, and grant written authority to the treasurer to receive money from public officers or other persons, due to the commonwealth. However, we need not rest upon this point, since in the present case the attorney general and his assistants are joined as parties, and the final decree under review restrains all of the defendants from taking any steps to collect the excessive taxes due to the state or to any of its subdivisions, and from instituting or prosecuting any proceedings against the plaintiff, either by indictment or civil action, because of any alleged delinquency or failure of the plaintiff to pay taxes upon its franchise on a valuation above the amount found by the court to be proper. The decree, with respect to the state as well as the local taxes, is clearly within the authority of Ex parte Young, 209 U. S. 123, 156, 52 L. ed. 714, 727, 13 L.R.A.(N.S.) 932, 28 Sup. Ct. Rep. 441, 14 Ann. Cas. 764, where Fitts v. McGhee, 172 U. S. 516, 530, 43 L. ed. 535, 541, 19 Sup. Ct. Rep. 269, was distinguished upon the ground that in that case no state officer who was made a party had to do with the enforcement of the statute alleged to be unconstitutional. If what was said in Coulter v. Louisville & N. R. Co. 196 U. S. 599, 608, 49 L. ed. 615, 617, 25 Sup. Ct. Rep. 342, imports that an injunction can, under no circumstances, be awarded with respect to state taxes, it must be deemed to have been overruled by Raymond v. Chicago Union Traction Co. 207 U. S. 20, 52 L. ed. 78, 28 Sup. Ct. Rep. 7, 12 Ann. Cas. 757, where the collection of taxes based upon an unconstitutional assessment was enjoined, a part of these being state taxes, as appears by the report, pp. 22, 27. (5) It is contended by defendants that the evidence was insufficient to warrant the conclusion of the learned district judge that in fact property in general in the state of Kentucky was systematically undervalued. A similar question of fact was involved in Coulter v. Louisville & N. R. Co. and this court (p. 609) held the evidence to be insufficient. In the present case, besides much to the same effect as that presented in the Coulter Case, a mass of additional evidence was introduced, including extracts from the United States Census Report for the year 1910; reports of the State Board of Equalization for the years 1910, 1911, 1912, and 1913; report of the State Tax Commission of 1913; testimony of a member of the State Board of Equalization who served in the years 1908 to 1911, inclusive; affidavits of nearly 200 individuals from 47 counties in different parts of the state; and much besides. The evidence is too voluminous to be adequately reviewed within reasonable limits of space, and we content ourselves with saying that it comprises a body of official admissions and direct and circumstantial evidence from private and public sources that are unimpeached, fully sustaining the finding of the trial court that the great mass of property in the state, so far as assessed by the county assessors under the review of the county boards of supervisors and the State Board of Equalization,—and this embraces all tangible property except railroad property and distilled spirits,—during a period of years prior to and including the year 1913, was intentionally, systematically, and notoriously assessed far below its actual value, and at certainly not exceeding 60 per cent of its fair cash value. There is little to the contrary except the general presumptions arising from the statutory duty of assessors to assess at fair cash value and from the oath customarily required of individual taxpayers, and a large number of stereotyped affidavits made by former assessors to the effect that they endeavored to follow the law and assess all property at its fair cash value, and if any property was otherwise assessed it was unintentional, and not pursuant to any agreement between the assessor and the taxpayer. In our judgment this does not materially detract from the convincing effect of plaintiff's proofs. The evidence is analyzed briefly in the opinion of the district judge (230 Fed. 227-231), and nothing more need be added to his comments upon it. This disposes of all the points raised by defendants. (6) It is contended by plaintiff that the Board of Valuation and Assessment, in assessing plaintiff's franchise, proceeded upon erroneous principles and adopted an improper method, not only in failing to equalize the assessment so as to make it conform to the basis generally adopted by other assessing officers in assessing other kinds of property, but also in failing to follow the course prescribed by the Kentucky statute; and that with respect to its complaint in this regard the decree of the district court gave inadequate relief. In order to pass upon this contention, we must consider the nature of the so-called 'franchise tax,' the method prescribed by the statute for valuing the franchise, the method that was pursued by the Board, and the manner in which the district court dealt with it. The statutory provisions are in §§ 4077-4081, Ky. Stat., the material portions of which are set forth in the margin.2 They originated in the first general assembly after the new Constitution, being §§ 1 to 5 of article 3 of chap. 103 (Nov. 11, 1892; Acts 1891-1893, p. 299), which were amended by chap. 217 of the same session (June 9, 1893, p. 990), by Act of March 29, 1902 (Acts 1902, chap. 128, pp. 281, 305-309), and by Act of March 15, 1906 (Laws 1906, chap. 22, pp. 88, 126-130). One of the amendments, having to do with one of the questions we are to consider, will be mentioned below. It will be observed that the values of franchises (except as to turnpike companies, otherwise provided for) are to be determined by the Board of Valuation and Assessment, which board, upon a consideration of information furnished to it by the corporation, and from such other evidence as it may have, is to 'fix the value of the capital stock of the corporation. . . . and from the amount thus fixed shall deduct the assessed value of all tangible property assessed in this state, or in the counties where situated. The remainder thus found shall be the value of its corporate franchise subject to taxation as aforesaid.' It has been held by the Kentucky court of appeals, and by this court, that the 'capital stock of the corporation' includes its entire property of every kind and description, tangible and intangible, and that what is called its 'corporate franchise' is the intangible property of the company in Kentucky. Henderson Bridge Co. v. Com. 99 Ky. 623, 639, 641, 29 L.R.A. 73, 31 S. W. 486; Henderson Bridge Co. v. Kentucky, 166 U. S. 150, 154, 41 L. ed. 953, 954, 17 Sup. Ct. Rep. 532; Adams Exp. Co. v. Kentucky, 166 U. S. 171, 180, 41 L. ed. 960, 963, 17 Sup. Ct. Rep. 527; Louisville Tobacco Warehouse Co. v. Com. 106 Ky. 165, 167, 57 L.R.A. 33, 49 S. W. 1069; Marion Nat. Bank v. Burton, 121 Ky. 876, 888, 10 L.R.A. (N.S.) 947, 90 S. W. 944. The findings of an official body such as the Board of Valuation and Assessment, made—as was the case here—after a hearing and upon notice to the taxpayer, are quasi judicial in their character, and are not to be set aside or disregarded by the courts unless it is made to appear that the body proceeded upon an erroneous principle or adopted an improper mode of estimating the value of the franchise, or unless fraud appears. Pittsburgh, C. C. & St. L. R. Co. v. Backus, 154 U. S. 421, 435, 436, 38 L. ed. 1031, 1039, 1040, 14 Sup. Ct. Rep. 1114; Chicago, B. & Q. R. Co. v. Babcock, 204 U. S. 585, 596, 51 L. ed. 636, 639, 27 Sup. Ct. Rep. 326. In this case there is no showing of fraud, the contention being that the Board departed from the mode prescribed by the statute. If they did this, or if they proceeded in disregard of rights secured to the taxpayer by the state or Federal Constitution, of course they proceeded upon an erroneous principle. Henderson Bridge Co. v. Com. 99 Ky. 623, 645, 29 L.R.A. 73, 31 S. W. 486; Hager v. American Surety Co. 121 Ky. 791, 800, 90 S. W. 550. It appears that the Board, having received a report from the plaintiff, and having made a tentative assessment of its franchise for taxation for the year 1913, had a hearing upon the matter in the presence of counsel for plaintiff, and as a result made up its assessment in a manner summarized by the district court (230 Fed. 193) as follows: 'The details of the assessment, showing the manner in which the Board arrived at $45,658,630 as the value of the franchise, are these: The Board first found the fair cash value of plaintiff's capital stock, hereafter termed its unit, to be $262,252,566. This valuation it arrived at by capitalizing at 6 per cent what it took to be plaintiff's net income from operations on its own account for the year ending June 30, 1912, as of which date the assessment speaks, less what it took to be its net income from certain property which it took to be nontaxable. Plaintiff's reports to the Kentucky Railroad Commission and to the Interstate Commerce Commission as of that date state plaintiff's net income for that year to have been $18,052,905.12. This included the net income from the operation by plaintiff of three railroads, two in and one out of Kentucky, on account of the owners, which amounted to $1,439,604. The board deducted this sum from the total, leaving a balance of $16,613,301.12 of net income from operations on its own account. It then deducted from this balance the sum of $878,147 on account of its net income from such nontaxable property. This left a balance of $15,735,154, which, capitalized at 6 per cent, gave the sum of $262,252,566, at which it valued the unit. The nontaxable property, the income from which was thus deducted, consisted of stocks in other corporations which owned property in this state and which had paid the taxes thereon. The doduction was based on §§ 4085 and 4086, Kentucky Statutes, and the construction thereof by the court of appeals in the cases of Com. ex rel. McElroy v. Walsh, 133 Ky. 103, 117 S. W. 398, and Com. ex rel. Hopkins v. Fidelity Trust Co. 147 Ky. 77, 143 S. W. 1037. It then apportioned $92,181,766 of this sum to Kentucky. The sum so apportioned was 35.15 per cent thereof. The percentage which it took was the percentage which the mileage operated by plaintiff in Kentucky on its own account was of the entire mileage so operated by it. The entire mileage so operated by it was 4,478.61, of which 1,574.41 was in Kentucky. It then added to the sum so apportioned $2,468,612, the excess in the value which it took that the portion of the unit in Kentucky was over such mileage proportion of the value thereof. It found this excess in value to be in the intangible part of the portion of the unit in Kentucky, and that in this way: The value of the tangible part it took to be $177,038,113, and that of the intangible $85,214,453. The proportion of the gross income derived from Kentucky of the entire gross income it took to be 38 per cent, or 2.85 per cent in excess of such mileage proportion. It took it that this showed that the value of the portion of the intangible part of the unit in Kentucky was 2.85 per cent of the value of such part, or the sum of $2,468,612, in excess of such mileage proportion thereof. Adding this sum to such mileage proportion of the value of the unit, to wit, $92,181,766, made the value of the portion of the unit in Kentucky $94,650,388. It then reduced this sum to that of $94,500,000 as the value. This reduction is not to be accounted for, except on the ground that it wanted to place the value of such portion in round numbers. This lessened the addition to such mileage proportion of the value of the unit on account of the excess in value of the portion of the intangible part of the unit in Kentucky over such mileage proportion thereof from the sum of $2,468,612 to $2,318,244, which latter sum was the difference between $94,500,000 and $92,181,766. But the Board had no sooner made this reduction than it made a further reduction from this sum in round numbers to another sum, not in round numbers, to wit $75,139,402, as the value of the portion of the unit in Kentucky, and there it stayed. On the assumption that this sum was reached by reducing from $94,500,000, there is no accounting for how it reached it, rather than any other sum. The only account of it which it gave was that it so did 'to be conservative, and out of an abundance of caution, to the end that no injustice may be done respondent in arriving at the value of the corporate franchise of respondent in this state.' And it noted the fact that this sum was 'less than 80 per cent of that which it believes to be the fair cash value of Kentucky's proportion of the entire capital stock of respondent.' It then deducted from this last sum the assessed value of the tangible property in Kentucky, to wit, $29,500,772, which left the sum of $45,658,630 as the value of the franchise. Such is what the Board did on the face of things.' Plaintiff being an interstate carrier whose lines of railroad extend both within and without the limits of the state, it comes within § 4081, Ky. Stat., which requires that 'the said board will fix the value of the capital stock as hereinbefore provided, and that proportion of the value of the capital stock which the length of the lines operated, owned, leased, or controlled in this state, bears to the total length of the lines owned, leased or controlled in this state and elsewhere, shall be considered in fixing the value of the corporate franchise of such corporation liable for taxation in this state.' The only previous provision to satisfy the reference, 'will fix the value of the capital stock as hereinbefore provided,' is the provision of § 4079, that the Board shall fix it 'from said statement and from such other evidence as it may have.' Under this system it is obvious that there are three principal steps in the process of ascertaining the value of the intangible property, taxable in Kentucky, of companies operating lines of railroad extending within and beyond the limits of the state. These are: (1) The fixing of the value of 'the capital stock of the corporation;' which, as construed in previous cases, means the total value of all its net assets, tangible and intangible, within and without the state; (2) the apportionment to Kentucky; and (3) the elimination of the value of the tangible assets. Whether the second step shall precede the third, or vice versa, is one of the matters in dispute. No specific method being prescribed by the statute for fixing the value of the 'capital stock' of the entire system, except a requirement to the effect that the Board shall have before it, with other evidence, a statement by the corporation setting forth the kind of business engaged in, the amount of capital stock, the number of shares, the par and real value thereof, with highest price at which it has sold recently, the amount of surplus and undivided profits, the value of all assets, the total amount of indebtedness, the gross and net earnings or income, the amount and kind of tangible property within the state, and its location and fair cash value, it follows that the particular method to be pursued in ascertaining from this and other evidence the aggregate capital value is left to the sound judgment and discretion of the Board. In such cases there are (at least) two recognized methods, known as the stock-and-bond plan and the capitalization-of-income plan. In the present case the latter was followed. (7) The application of this method by the Board is attacked in two respects; first, in the manner of deducting nontaxable assets, and, second, in the rate of percentage used in capitalizing the income. As to the first point, the insistence is that as the tax under consideration is merely an intangible-property tax, it results that if among the assets of the corporation going to make up its total capital value there were some that were nontaxable, it was necessary to deduct these before arriving at the taxable capital. It is pointed out that under § 4085, Ky. Stat., the property of all corporations is to be assessed in the name of the corporation, and 'so long as said corporation pays the tax on all its property of every kind the individual stockholders shall not be required to list their shares in said corporation;' the argument being that, to the extent that plaintiff held the stock of other corporations having property in Kentucky and paying taxes thereon in the state, this stock in plaintiff's hands was nontaxable, and its value should have been deducted from the total value of its capital stock previously ascertained; citing Com. ex rel. Hopkins v. Fidelity Trust Co. 147 Ky. 77, 84, 143 S. W. 1037. As the record shows, the Board of Valuation and Assessment recognized plaintiff's right to dudection upon this account, and for this reason, in applying the capitalization-of-income method, deducted from $16,613,301.12, net income from operated roads, the sum of $878,147, the net income from nontaxable securities as reported by plaintiff to the auditor and the Railroad Commission, taking the balance only, or $15,735,154, as the income to be capitalized in order to arrive at the value of the entire system. The criticism is that adopting this method had the effect of deducting only such stock in other corporations as paid dividends, whereas plaintiff insists that much of its stock thus held, although paying no dividends, or dividends at a low rate, had large intrinsic value by reason of the control it gave over other lines of railroad and the increment it brought to the aggregate income of the company. There was evidence that these nontaxable securities amounted to upwards of $30,000,000 in value, whereas the capitalization at 6 per cent of their income of $878,147 produced a value of only $14,469,113. In our opinion, it is a sufficient answer to this contention to say that the Board merely carried out the capitalization-of-income plan of valuation, perhaps to its logical extreme, but certainly not in a manner that enables this court to say that they pursued a fundamentally wrong method. (8) The second point, the adoption of a 6 per cent interest rate as the basis of capitalization, instead of the higher rate, called in the testimony the 'composite percentage,' reached by taking plaintiff's mileage in each of the thirteen states in which it operates, multiplying this by the legal rate of interest in that state, and dividing the total of the products by the total mileage, is, like the first, a criticism merely of the conclusion of the Board upon a question of fact which is not properly subject to review by the courts. Therefore we concur in the opinion of the district judge that, upon this record, the value of the capital stock must be taken to be at least as great as $262,252,566, the amount found by the Board. (9) The Board's next step was to apportion to Kentucky a certain part of this total value, which, of course, included both tangible and intangible assets; after which it proceeded to deduct the assessed value of the tangible assets in Kentucky. Plaintiff insists that these steps should have been reversed; that the Board, having valued the total capital stock of the company, including assets tangible and intangible, should first have deducted the entire tangible assets wherever situate, and next have assigned a proper portion of the intangible to Kentucky. What the statute requires in this respect is a question of state law, upon which we must follow the Kentucky court of appeals if that court has passed upon it. It is true that the only authority of the Board was to assess intangible property; and, whether it followed the local statute or not, it could not, consistently with the due process provision of the 14th Amendment, include, at least as against any foreign corporation, any part of its tangible property lying without the state; and it is not to be supposed that the statute intended to prescribe a different rule with respect to Kentucky corporations, since domestic and foreign corporations are dealt with in the same section (§ 4081). That section, according to its terms, first provides that the Board shall 'fix the value of the capital stock as hereinbefore provided,' there being, as already shown, no provision respecting the method except that the ascertainment shall be based upon the statement of the corporation and such other evidence as the Board may have. The section proceeds to declare that 'that proportion of the value of the capital stock which the length of the lines operated, owned, leased, or controlled in this state, bears to the total length of the lines owned, leased or controlled in this state and elsewhere, shall be considered in fixing the value of the corporate franchise of such corporation liable for taxation in this state.' Referring now to the mode of procedure, these words evidently contemplate an apportionment, as an aid in reaching the ultimate result (valuation of franchise taxable in Kentucky); but it is an apportionment of 'the value of the capital stock,' which includes both tangibles and intangibles, within and without the state. This is not to say that any property without the state may be taxed. It requires state mileage valuation to be considered and compared with system mileage valuation, but it does not make this comparison conclusive. As the section was enacted originally, the words 'considered in fixing' were not contained in it, so that, upon the face of things, the mileage pro-rate was conclusive in ascertaining the state's proportion of the value of the corporate franchise,—just as county and district mileage was and still is conclusive as to apportionment between those taxing districts. But by the Act of June 9, 1893, the words 'considered in fixing' were inserted, the necessary effect of which was to make the relation of state mileage to system mileage a factor that must be considered, but not necessarily given conclusive weight. Section 4081 says nothing about deducting the value of tangible property, and the preceding sections speak of deducting only such tangible property as is located within the state. Indeed, there is no provision requiring the corporation to report its tangibles outside of the state. And, if all tangibles were deducted before apportionment, then the deduction of 'all tangible property assessed in this state,' specifically required by the proviso to § 4079, obviously would result in a double deduction. The sections are inartificially drawn in this as in some other respects. The district court, upon elaborate consideration in the case of the 1912 assessment (209 Fed. 418-429), reached the conclusion that by the proper construction the entire value of capital stock should be first apportioned, having regard to the mileage, and that from Kentucky's portion of the whole the assessed value of the tangibles within the state should then be deducted; and that the Kentucky court of appeals had so decided in Com. v. Covington & C. Bridge Co. 114 Ky. 343, 70 S. W. 849. Plaintiff relies upon two cases, the first being Adams Exp. Co. v. Kentucky, 166 U. S. 171, 180, 41 L. ed. 960, 963, 17 Sup. Ct. Rep. 527, where this court, by Mr. Chief Justice Fuller, after referring to the statutory provisions now under consideration, and the use in the several sections of the words 'franchise' and 'corporate franchise,' said: 'But taking the whole act together, and in view of the provisions of §§ 4078-4081, we agree with the circuit court that it is evident that the word 'franchise' was not employed in a technical sense, and that the legislative intention is plain that the entire property, tangible and intangible, . . . should be valued as an entirety, the value of the tangible property be deducted, and the value of the intangible property thus ascertained be taxed under these provisions; and as to railroad . . . companies, whose lines extend beyond the limits of the state, that their intangible property should be assessed on the basis of the mileage of their lines within and without the state. But from the valuation on the mileage basis the value of all tangible property is deducted before the taxation is applied.' The matter of apportionment was not there involved, nor what method or order was prescribed by the statute; the question at the moment being whether the tax was a true franchise tax, or merely a property tax upon intangible property. The significant thing was that the value of tangibles was to be deducted; whether before or after apportionment was a matter of no present significance. And the last sentence quoted, in the expression 'valuation on the mileage basis,' indicates an apportionment of the entire capital stock, mile for mile, prior to the deduction of tangibles. The second case referred to is Coulter v. Weir, 62 C. C. A. 429, 127 Fed. 897, 907, 908, where the circuit court of appeals for the sixth circuit, in dealing with the question whether the law was repugnant to the commerce clause or the 14th Amendment, used this language: 'Neither is the injunction in reference to a deduction of the value of tangible taxable property from the gross value of the whole corporate property limited to such as is situated within the state of Kentucky. If tangible property having a situs outside the state be included in the valuation of the company's intangible property, the purpose of the law, being to tax only intangible property, is defeated. We therefore read the act, as the supreme court seems to have read it in Adams Exp. Co. v. Kentucky, as requiring the deduction of tangible property from the gross value of all corporate assets, whether such tangible property be within or without the state.' The question of apportionment, or of the particular method to be pursued in making the assessment, was not involved in this case, any more than in Adams Exp. Co. v. Kentucky, supra. It is true, as the court said, that if tangible property having a situs outside the state were included in the valuation, the purpose of the law to tax only intangible property would be defeated. The same result would follow if tangible property within the state were included in the valuation. But it does not follow that tangibles, within or without the state, are to be included in the valuation because included in the apportionment. Any excess of tangibles, without or within the state, properly may be given its due weight as a factor modifying the tentative result reached by mere mileage apportionment. In the absence of special circumstances, this is not of itself necessarily an unjust method of apportioning such a tax. Western U. Teleg. Co. v. Atty. Gen. 125 U. S. 530, 552, 553, 31 L. ed. 790, 794, 795, 8 Sup. Ct. Rep. 961; Western U. Teleg. Co. v. Taggart, 163 U. S. 1, 18, 20, 22, 26, 41 L. ed. 49, 55-58, 16 Sup. Ct. Rep. 1054. However, the decision of the Kentucky court of appeals in the Covington & C. Bridge Co. Case, supra, is directly in point, and, being so, is conclusive upon the question of the proper statutory method. There the company's 'capital stock,' valued by the stock-and-bond method, amounted to $1,330,000. It owned an interstate bridge, 59 per cent of the length thereof being in Kentucky, the remainder in Ohio; and it had tangible property in Kentucky assessed at $452,000. The state of Ohio assessed the portion of the bridge lying in that state at $237,984, and the company paid the taxes thereon. The Kentucky Board of Valuation and Assessment fixed the value of its entire property or capital stock at $730,349, and, deducting from this the assessment of tangibles in Kentucky ($42,000), took the difference, or $278,349, as the franchise valuation. The company, insisting that the correct valuation was $180,489, paid to Kentucky the tax on this amount, reserving the question of its liability for a claimed balance of $464.84, and of the method or basis upon which its franchise should be valued for taxation by the Board, to be determined by the courts. The matter was submitted to the circuit court as an agreed case presenting two questions: (1) whether the company owed to the commonwealth the sum of $464.84, or any part thereof, on account of the tax of its franchise, and (2) what method or basis should be adopted by the State Board of Valuation and Assessment for fixing the value of defendant's franchise for taxation in the commonwealth of Kentucky. That court held that the Board had adopted an improper method, and that the company, by the payment it had made, had fulfilled its obligation to the state; reaching this conclusion by taking the aggregate market value of its capital stock and bonded indebtedness ($1,330,000), deducting the assessed value of the Ohio tangibles ($237,984), and apportioning the balance of $1,092,016 on the basis of 59 per cent to Kentucky and 41 per cent to Ohio. From 59 per cent of $1,092,016, namely $664,289, it deducted the tangible property assessed in Kentucky, $452,000, which left a balance of $192,289 as the value of the Kentucky franchise. The state appealed to the court of appeals, where it insisted that, by the method adopted by the circuit court, the company was not taxed upon its entire property. The report of the case states (pp. 348, 349): 'It is insisted for the state that the proper way to arrive at the valuation of the franchise is to take the total value, $1,330,000, and get 59 per cent of it, which is $782,700, and that this presents the total of the tangible property and of the franchise in Kentucky. Therefore, if we deduct from this total $782,700, the assessment of the tangible property in Kentucky, $452,000, the balance, $330,700, is the value of the franchise. The Board fixed the value of the franchise at $278,349, or considerably less than the result thus obtained.' It was insisted for the Bridge Company that the circuit court had followed Henderson Bridge Co. v. Com. 99 Ky. 623, 29 L.R.A. 73, 31 S. W. 486, but the court of appeals pointed out that in that case the Board had followed the method claimed by the company; that, as the action was brought by the state to recover taxes upon the assessment made by the Board, the state was not in a position to question the propriety of the assessment, and that there was nothing in that case, or in any subsequent case approving it, to prevent the Board from adopting a different basis. To a criticism that the Board had adopted an erroneous basis in the instant case, the court conceded the point, arguendo, but sustained the assessment upon the ground that it was no more onerous than it would have been had a correct method been adopted; and, in conclusion, declared (pp. 350, 351): 'We therefore conclude that the basis urged by appellant [the state] is the proper one for the assessment of the property under the agreed facts, and the Board having fixed a lower assessment than this would make, the court erred in not enforcing the collection of the tax on the assessment made by the Board.' This was a precise answer to the equally precise contention urged in behalf of the state, affecting each of the two questions that were submitted for decision, and it seems to us that it is binding upon the Federal courts as a construction of the statute. This, we repeat, does not necessarily result in including in the Kentucky franchise valuation tangible or intangible property not located within that state. It does permit the Kentucky officials to take into consideration extra-state tangibles, as well as intangibles, constituting portions of the unit of which they are valuing a part. This is permissible, even in applying the statute to nonresident corporations. It is settled that total stock or total assets, situate partly within and partly without the state, but organically related, may be taken into consideration as a means of reaching the true cash value of property within the state, and that the mileage relation may be given its proper weight. State R. Tax Cases, 92 U. S. 575 608, 23 L. ed. 663, 671; Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18, 26, 35 L. ed. 613, 617, 3 Inters. Com. Rep. 595, 11 Sup. Ct. Rep. 876; Pittsburgh, C. C. & St. L. R. Co. v. Backus, 154 U. S. 421, 430, 431, 38 L. ed. 1031, 1037, 1038, 14 Sup. Ct. Rep. 1114; Western U. Teleg. Co. v. Taggart, 163 U. S. 1, 26, 27, 41 L. ed. 49, 58, 59, 16 Sup. Ct. Rep. 1054; Fargo v. Hart, 193 U. S. 490, 499, 48 L. ed. 761, 765, 24 Sup. Ct. Rep. 498. (10) Plaintiff's next point is that the Board took into consideration a mileage proportion of 35.15 per cent, which was the ratio borne by the roads operated by plaintiff within the state of Kentucky to its total operated mileage; whereas it should have included the controlled mileage within and without the state, which would have yielded to Kentucky a proportion of only 24.69 per cent. In this the district court yielded to plaintiff's contention, and, we think, rightly so. By § 4079, Ky. Stat., where the company's lines extend beyond the limits of the state, the report to the auditor shall, in addition to other facts, show 'the length of entire lines operated, owned, leased or controlled in this state, and in each county, incorporated city, town or taxing district, and the entire line operated, controlled, leased or owned elsewhere.' And, by § 4081, 'that proportion of the value of the capital stock which the length of the lines operated, owned, leased, or controlled in this state bears to the total length of the lines owned, leased or controlled in this state and elsewhere, shall be considered in fixing the value of the corporate porate franchise of such corporation liable for taxation in this state.' In Com. v. Louisville & N. R. Co. 149 Ky. 829, 838, 150 S. W. 37, the very point was considered by the court of appeals, which declared: 'If the railroad company owns a majority of the stock of another company, so that it may elect its directors and dictate its policy, there can be no doubt that it controls it within the meaning of the statute, and that such other railroad should be included in the report required to be made to the auditor. If required to be reported, the Board of Valuation and Assessment may take them into consideration in fixing the value of the franchise of the controlling company in the state of Kentucky.' (11) The district court (230 Fed. 199 et seq.) acceded to the contention of the plaintiff that the action of the Board in adding at first $2,468,612, and, finally, $2,318,244, to the Kentucky proportion of the value of the unit, on account of the excess value of the portion of the Kentucky intangibles over the mileage proportion thereof, was not warranted; basing this decision upon the ground that the Board did not follow the only possible method that would have determined this excess with any certainty, and did not have before it the data that would have enabled it to do do so. The point, perhaps, is covered by one of defendants' assignments of error; but no argument has been addressed to it, and we express no opinion upon it. (12) The district court, having found that the value of plaintiff's entire capital stock must be taken to be at least as much as $262,252,566, the amount found by the Board, and that the apportionment must be upon the basis not of the operated mileage only, but of all mileage operated, owned, leased, and controlled within and without the state, was led to the further conclusion, as a corollary (230 Fed. 202-204), that the valuation of the total capital stock should include an item that the Board had overlooked, viz., the value of so much of the controlled mileage as was not represented by plaintiff's holdings. (Of course, in adopting the capitalization-of-income method of valuation, no account was taken of the interests of others than plaintiff in the controlled roads.) Plaintiff contends that the statute does not justify this procedure; that it is beyond the power of the state because it results in taxing property not belonging to the plaintiff; and that a more logical and consistent method would be to arrive at the operated, owned, leased, or controlled mileage by treating as controlled mileage not the total, but only a proportion corresponding to the amount of stock held by plaintiff in the controlled roads. The matter is not free from doubt; but we concur in the view of the district judge that it was the legislative intent that, in fixing the percentage apportionable to Kentucky and to be taken into consideration in valuing the taxable franchise, the whole of the controlled mileage within and without the state was to be treated as a part of the aggregate 'capital stock,' not only in fixing the mileage, but also in fixing the valuation, upon which the apportionment is to be based. It is not to be supposed that the legislature intended to require that, in making the mileage apportionment, which, as already shown, is not conclusive but evidential upon the valuation of the taxable franchise, fractional interests in the controlled roads should be taken into the account, but rather that a controlled road should be treated the same as a road owned. In order to avoid a double assessment of the franchise of so much of the controlled mileage as was within the state, the court found it necessary to deduct from the Kentucky apportionment of the 'capital stock' the value of the Kentucky portion of the controlled mileage (in addition to the assessed value of the tangible property there situate), since these local franchises would be assessed against each of the separate organizations. In this view we concur. But the court was unable to apply the proper correction to the Board's valuation (p. 232), because of there being nothing in the record to show either the value of the portion of plaintiff's total capital stock not considered by the Board (that is, the value of the outstanding interests in the controlled roads), or the value of that portion of the controlled mileage which was in Kentucky. After the court delivered its opinion to this effect, and before the entering of the final decree, plaintiff tendered what is called a supplemental bill, which the court allowed to be filed, purporting to show all the facts respecting the controlled roads, and to demonstrate that the result of adopting the process indicated by the court's opinion would be to reduce the assessment below the amount upon which the company already had paid taxes, and this whether the valuation were made on the stock-and-bond plan or on the capitalization-of-income plan. It appears that defendants never filed any answer to this, and it is urged that because of their failure to do so its allegations must be taken as confessed. But there is nothing to show that defendants were ordered to answer; and inasmuch as this supplemental bill was filed after the hearing and decision of the cause, and the record contains nothing to show why its averments were ignored, we are not able to say either that defendants were in the position of admitting those averments, or that the court erred in failing to give effect to them. But at least it can be said that plaintiff was not in default for omitting to introduce evidence at the hearing respecting these matters, they not having been considered by the Board, nor set up in the original pleadings, nor, so far as appears, deemed by any of the parties to be material until the court rendered its decision. Yet, as will appear presently, the court in effect decided the case against plaintiff because there was nothing in the record to show the facts concerning the controlled mileage. (13) In attempting to carry into effect its conclusions upon the facts and the law, the district court pursued the following process of reasoning (p. 231): Assuming $262,252,566 to be the true cash value of plaintiff's entire capital stock, as the Board found it to be, and 24.6901 (in the opinion this is misprinted as '24.9601') to be the true percentage of the fair cash value apportionable to Kentucky, and that Kentucky's portion was not of greater value than the mileage proportion, the fair cash value of the portion of plaintiff's capital stock attributable to Kentucky would be $64,750,418.79. Sixty per cent of this—the factor of equalization—was taken to be $38,850,251.12. Deducting $29,500,772, the assessed value of the tangible property, would leave $11,349,479.27 as the value of the franchise,—this being less than half of the amount upon which payment had been made. (There appear to be some additional misprints, or trifling errors of calculation, but not sufficient to affect the result.) But since the Board had omitted to include in the value of the capital stock that interest in the controlled mileage not represented by the stock and bonds owned by plaintiff, and since there was nothing in the record to show the value of this interest, or the value of that portion of the controlled mileage located in Kentucky, the court assumed that the result of considering these two matters might be to make the value of the Kentucky portion of plaintiff's capital stock as much as $92,181,766, the sum at which the Board fixed it, instead of $64,750,418.79, the amount computed by the court. The court proceeded to say (p. 232): 'The board has found the fair cash value of the portion of plaintiff's unit in this state to be $92,181,766, without any excess value. They have not gone at it in the right way. But they have in fact found such to be its value. It is possible that, if they had gone at it in the right way, they would have found such to be the value thereof. . . . I will therefore dispose of the case on the basis that it was that much. This is not such an exactness as I always like to attain, but the case is one where exactness is not, and only approximation is, attainable. Taking 60 per cent of $92,181,766 would give $55,309,059.60 as the value of the portion of plaintiff's unit in Kentucky. Deducting $29,500,566, the assessed value of the tangible property, leaves $25,808,493.60 as the value of the franchise. And deducting from this balance $22,899,300, the amount on which payment has been made, leaves $2,909,192.60 on which payment should yet be made.' This rough-and-ready reasoning had the effect of depriving plaintiff of the benefit of having controlled mileage taken into consideration in making the apportionment, instead of operated mileage only; and this because of the assumption that the same valuation reached by the Board through an erroneous method possibly might have been reached had they pursued a correct method. We think the court here fell into error. It being shown that the valuation made by the Board was the result of following a method substantially erroneous because not in accordance with the statute, there is no presumption that a like valuation would have been reached by following a correct method. As the difference is so great—more than $27,000,000—there is a strong presumption to the contrary. If any of the facts necessary to enable the court to determine what result would have been reached by the application of a correct method were absent from the record, the court might have opened the proofs, in its discretion; otherwise it should have proceeded to base its judgment upon such proofs as already were in the record. The result of the method adopted in making up the decree was to deprive plaintiff of the relief it was entitled to, upon the basis of the facts as found, because of a surmise that, upon other facts not shown by the record, a conclusion sustaining the Board's action might have been reached. The decree under review, so far as defendants' assignments of error are concerned, should be affirmed. Upon plaintiff's assignments of error, it should be reversed, and the cause remanded to the District Court for further proceedings in conformity with this opinion. No. 778, reversed. No. 779, affirmed. Mr. Justice Holmes, Mr. Justice Brandeis, and Mr. Justice Clarke dissent.

243.US.157

In a suit to determine the relative rights of the parties to divert water for irrigation from a stream in Nebraska, the state court decided that superiority of the defendant's appropriation had been conclusively established against the plaintiff, consistently with due process, in proceedings before a state board, and, further and independently, that the plaintiff, having without objection stood by and permitted the ddfendant to go to enormous expense in the construction of a canal and diverting works, was estopped to question the validity of the defendant's appropriation on which it relied. The ground of estoppel being distinct, non-federal, and fairly supported by the facts, Held, that this court had no jurisdiction to review, although the state board's adjudication was challenged under the Fourteenth Amendment. When the judgment of a state court is placed upon. two grounds, one involving a federal question and the other not, the jurisdiction of this court depends upon whether the non-federal ground is independent of the federal ground and also broad enough to sustain the judgment; if so, the judgment does not depend, upon the decision of any, federal question, and this court has no power to disturb it. Where the non-federal is so interwoven with the federal ground as not to be independent, or, standing alone, is not of sufficient breadth to sustain the judgment, the jurisdiction of this court attaches. Where the non-federal ground is so certainly unfounded that it properly may be regarded as essentially arbitrary, or a mere device to prevent a review of the decision upon the federal question, the judgment rests upon the latter and may be reviewed here. But, where the non-federal ground has fair support, this court may not inquire whether the decision upon it is right or wrong. Questions of state law do not engage the due process clause of the Fourteenth Amendment. Writ of error to review 92 Nebraska, 121, dismissed.

In form this was a suit to determine the relative rights of the parties to divert the waters of the North Platte river, in western Nebraska, for purposes of irrigation; but the only controversy disclosed was over the extent and priority of the right of the Farmers Mutual Canal Company, the principal defendant. Another defendant, the Tri-State Land Company, was interested as a stockholder of the canal company, and need be noticed only in another relation. The Canal Company claimed a right to divert through its canal 1,142 6/7 cubic feet of water per second of time,—usually spoken of as second feet,—under an appropriation dating from September 16, 1887, and the other parties severally claimed rights to divert specific amounts under later appropriations. In so far as the Canal Company's claim exceeded 28 second feet, with a priority dating from September 16, 1887, it was challenged on the grounds that the appropriation upon which it rested had not been perfected with reasonable diligence; that this was the situation when the appropriations under which the others were claiming were made and perfected; that if the claim subsequently was enlarged it could not, as to the enlargement, take priority over the intervening rights of others, and that if it originally covered 1,142 6/7 second feet, which was disputed, all right to more than 28 feet had been lost by nonuser. But the Canal Company asserted the validity of its entire claim, denied any loss by lack of diligence of nonuser, and contended, among other things, that the State Board of Irrigation had sustained its entire claim in 1897, when the board was engaged under the state law (Laws 1895, chap. 69, §§ 16-27) in adjudicating claims to the waters of the North Platte river, and that the other parties were estopped from questioning its right by reason of their attitude and conduct after 1904, when its predecessor in interest was completing the canal and diverting works at enormous cost. The other parties denied that there was any ground for an estoppel, and insisted that, consistently with the due process and equal protection provisions of the 14th Amendment, the claimed adjudication by the State Board of Irrigation could not be treated as in any way binding upon them, because (a) the law under which the board acted made no provision for notice, and (b) the board had proceeded without notice and without affording an opportunity to be heard. Other contentions were advanced, but no purpose would be served by stating them here. It was conceded that during portions of the irrigation season the flow of the stream had not been sufficient to satisfy all of these claims, and that the State Board of Irrigation recently had recognized the Canal Company's claim by refusing to restrict its diversion in time of low water to less than 1,142 6/7 second feet. The cause was submitted on the pleadings and on a 'stipulation of facts' covering 84 printed pages and containing much that was purely evidential, and not in the nature of a statement of ultimate facts. The stipulation disclosed that the Canal Company's canal was about 80 miles in length, was completed in October, 1910, and was capable of irrigating 80,000 acres; that in 1895 it had cost about $100,000 and was capable of irrigating 30,000 acres; that by reason of financial difficulties, a foreclosure suit and other litigation, the work of construction was practically suspended from 1895 to 1905; that the work was actively resumed in 1905 and continued with vigor until October, 1910, when it was completed; that the cost of the work from 1905 to 1910 was in excess of $1,500,000, and more than $950,000 of this was expended before August, 1909, when this suit was begun; that the work done after 1905 included a needledam across the river, costing $27,869.20, an additional headgate of concrete and reinforced steel, costing $52,113.20, and a wastegate or spillway of similar construction, costing $42,253.46; and that the number of acres actually reclaimed and irrigated by the canal was being rapidly increased, being less than 2,000 acres in 1905, and 20,000 acres in 1910. The trial court held that the canal company's right, although prior in time, did not extend to more than 28.57 second feet of the water, and entered a decree to that effect. An injunction was also granted restraining the company from taking more than was thus accorded to it. In the supreme court the decree was reversed and the suit was dismissed on the merits so far as it concerned the Canal Company and the Tri-State Land Company, and without prejudice in respect of any controversy between the other parties. 92 Neb. 121, 138 N. W. 171. The supreme court, recognizing that the case was of great importance to the parties and to all who were interested in irrigated lands in the state, and that any decision therein would almost inevitably result in serious loss to one or more of the parties, proceeded in a painstaking way to state, discuss, and determine all the questions presented. Among other things, it sustained the authority of the State Board of Irrigation under the Act of 1895 to adjudicate claims like those to the waters of the North Platte river; described the board's power in that regard as quasi judicial and its adjudications as final unless appealed from to the district court; held that the right to due notice and a reasonable opportunity to be heard was implied in the act; and reaffirmed its decision in Farmers Canal Co. v. Frank, 72 Neb. 136, 100 N. W. 286, made in 1904, that the board's action upon the Canal Company's claim amounted to an unconditional adjudication of the extent and priority of the claim, and that a leading purpose of the Act of 1895 was to create a state board 'whose records would evidence the priorities of title to the appropriation of water in such a public manner that no one might be misled.' As respects the notice actually given to the other parties, the opportunity which they had for opposing or contesting the Canal Company's claim before the board, and the knowledge of the board's action which they reasonably should be regarded as possessing, the court found, in substance, that before the board began to inquire into the claims to the waters of the North Platte, it gave due notice of its purpose so to do; that under that notice all the parties to this suit, or their predecessors in interest, appeared before the secretary of the board, at the times and places indicated in the notice, and presented such evidence as they deemed appropriate in support of their respective claims,—the evidence being preserved and becoming a part of the record in that proceeding; that the board's printed rules, which were duly brought to the attention of all the parties, permitted any claimant to contest the claim of another, but no one sought to contest the Canal Company's claim; that in ordinary course, after the evidence was presented, the claims were adjudicated,—a separate opinion upon each claim being prepared by the secretary, who was the state engineer, and afterwards adopted by the board; that each claimant was specially notified of the decision upon his own claim, but not of the decisions upon the claims of others; that the decision upon the Canal Company's claim, in addition to being entered in the records of the state board, was shown in a list of established claims regularly appearing in the biennial reports of the board which the state required to be made and published, and was recorded in 1905 in the office of the county clerk of the county where the appropriation was made. In these circumstances the court concluded that the contention that the board had proceeded without adequate notice to the parties, or without affording them a reasonable opportunity to be heard, had no real foundation. It also concluded that, in view of the nature of the enterprise, the large expenditures required, and the circumstances surrounding the temporary suspension of the work, the contention that part of the Canal Company's claim had been lost through lack of diligence or nonuser was highly inequitable and untenable. Then, coming to the question of estoppel, the court held that, even if the other questions were decided against the Canal Company, it was entitled to prevail upon the ground that its adversaries were estopped by reason of their own conduct. In the course of its opinion the court referred at length to the admissions in the pleadings and stipulation, and found, as matter of fact, that shortly after the decision in Farmers Canal Co. v. Frank, supra, the Tri-State Land Company, the Canal Company's immediate predecessor in interest, actively took up the work of completing the canal and diverting works and proceeded therewith in good faith and with vigor, relying upon that decision and the state board's adjudication, and openly claiming the amount of water and priority specified in the latter, and that the other parties, with knowledge of that claim and situation, made no claim of superior right to the water, but remained silent for four years while the work, which the court described 'as comparable only to the construction of a railroad,' was being carried to completion at enormous cost, and the water was being diverted and used through the canal in increasing volume. And, having thus passed upon the questions of fact, the court said: 'Under these circumstances, and having this knowledge, it would be contrary to the plainest principles of equity if plaintiffs might stand silently by, seeing the defendants engage in such a monumental work under claim of right, and utter no word of warning as to their own claims, which, if eventually established, would deprive defendants of the water which the canal was built to carry, condemn the whole enterprise to failure, and result in the absolute loss of the money expended. It would be manifestly inequitable and unjust to allow the plaintiffs, after the works were practically finished and the money expended, to insist upon claims which, had they been ascerted in good time, would at least have put the defendants upon their guard and have given them cause to pause and hesitate in their expenditures until the validity of their title had been determined.' [92 Neb. 158.] Concisely stated, the assignments of error complain that the supreme court infringed the due process and equal protection provisions of the 14th Amendment, first, by giving decisive effect to the state board's decision, instead of holding that it was made without lawful notice or opportunity to be heard, and therefore was void, and, second, by misconceiving or misapplying the statute and common law of the state in disposing of other questions. Our jurisdiction is disputed and must be considered, as, indeed, it should be, even if not challenged. As has been shown, several questions were presented to the supreme court and all were considered. One was whether the state board's decision could be given any conclusive effect consistently with the due process and equal protection clauses of the 14th Amendment, and another was whether the defense of estoppel in pais was well grounded. The first was plainly a Federeal question and the other as plainly non-Federal. Both were resolved in favor of the canal company. The other questions, none of which was Federal, may be put out of view in this connection. Thus we are concerned with a judgment placed upon two grounds, one involving a Federal question and the other not. In such situations our jurisdiction is tested by inquiring whether the non-Federal ground is independent of the other and broad enough to sustain the judgment. Where this is the case, the judgment does not depend upon the decision of any Federal question and we have no power to disturb it. Hammond v. Johnston, 142 U. S. 73, 78, 35 L. ed. 941, 942, 12 Sup. Ct. Rep. 141; Eustis v. Bolles, 150 U. S. 361, 37 L. ed. 1111, 14 Sup. Ct. Rep. 131; Berea College v. Kentucky, 211 U. S. 45, 53, 53 L. ed. 81, 85, 29 Sup. Ct. Rep. 33; Waters-Pierce Oil Co. v. Texas, 212 U. S. 112, 116, 53 L. ed. 431, 433, 29 Sup. Ct. Rep. 227; Gaar, S. & Co. v. Shannon, 223 U. S. 468; 56 L. ed. 510, 32 Sup. Ct. Rep. 236; Southern P. Co. v. Schuyler, 227 U. S. 601, 610, 57 L. ed. 662, 668, 43 L.R.A.(N.S.) 901, 33 Sup. Ct. Rep. 277. It has been so held in cases where the judgment was rested upon a Federal ground and also upon an extoppel. Pierce v. Somerset R. Co. 171 U. S. 641, 648, 43 L. ed. 316, 319, 19 Sup. Ct. Rep. 64; Lowry v. Silver City Gold & S. Min. Co. 179 U. S. 196, 45 L. ed. 151, 21 Sup. Ct. Rep. 104, 21 Mor. Min. Rep. 113.1 But where the non-Federal ground is so interwoven with the other as not to be an independent matter, or is not of sufficient breadth to sustain the judgment without any decision of the other, our jurisdiction is plain. See Moran v. Horsky, 178 U. S. 205, 208, 44 L. ed. 1038, 1039, 20 Sup. Ct. Rep. 856; Creswill v. Grand Lodge, K. P. 225 U. S. 246, 261, 56 L. ed. 1074, 1080, 32 Sup. Ct. Rep. 822. And this is true also where the non-Federal ground is so certainly unfounded that it properly may be regarded as essentially arbitrary, or a mere device to prevent a review of the decision upon the Federal question. Leathe v. Thomas, 207 U. S. 93, 99, 52 L. ed. 118, 120, 28 Sup. Ct. Rep. 30; Vandalia R. Co. v. Indiana, 207 U. S. 359, 367, 52 L. ed. 246, 248, 28 Sup. Ct. Rep. 130. But, where the non-Federal ground has fair support, we are not at liberty to inquire whether it is right or wrong, but must accept it, as we do other state decisions of non-Federal questions. Murdock v. Memphis, 20 Wall. 590, 635, 22 L. ed. 429, 444; Eustis v. Bolles, 150 U. S. 369, 37 L. ed. 1111, 14 Sup. Ct. Rep. 131; Leathe v. Thomas, supra; Arkansas Southern R. Co. v. German Nat. Bank, 207 U. S. 270, 275, 52 L. ed. 201, 203, 28 Sup. Ct. Rep. 78. It does not, as we think, admit of doubt that the estoppel in pais is made an independent ground of the judgment. Instead of being interwoven with the validity of the state board's adjudication, which is the other ground, it is distinct from it, and is so treated in the court's opinion. In taking up the question of estoppel as also in concluding its discussion of the subject, the court plainly shows that it is then indulging an assumption that the other ground is not tenable. True, the board's proceedings and adjudication are referred to as having some bearing upon the good faith of the Canal Company, and upon the knowledge which the other parties had of that company's claim, but in this the court neither departs from the assumption indulged nor confuses the two grounds of the judgment. Even if invalid, the board's proceedings and adjudication could well have a real bearing upon the matters indicated. In view of the facts before recited we think it cannot be said that the ruling upon the question of estoppel is without fair support, or so unfounded as to be essentially arbitrary, or merely a device to prevent a review of the other ground of the judgment. We therefore are not at liberty to inquire whether the ruling is right or wrong. And it may be well to add that the question did not originate with the court. It was presented by the pleadings, was in the minds of the parties when the stipulation was made, and was dealt with by counsel and court as a matter of obvious importance. It is not urged, nor could it well be, that, as a ground of decision, the estoppel is not broad enough to sustain the judgment. The claim that the court, in disposing of some of the questions, including that of the estoppel, misconceived or misapplied the statutory and common law of the state, and thereby infringed the due process and equal protection clauses of the 14th Amendment, requires but brief notice. The due process clause does not take up the laws of the several states and make all questions pertaining to them constitutional questions, nor does it enable this court to revise the decisions of the state courts upon questions of state law. Sayward v. Denny, 158 U. S. 180, 186, 39 L. ed. 941, 943, 15 Sup. Ct. Rep. 777; Central Land Co. v. Laidley, 159 U. S. 103, 112, 40 L. ed. 91, 94, 16 Sup. Ct. Rep. 80; Castillo v. McConnico, 168 U. S. 674, 683, 684, 42 L. ed. 622, 625, 626, 18 Sup. Ct. Rep. 229. The questions presented, other than those relating to the validity of the state board's adjudication, all turned exclusively upon the law of the state, and the state court's decision of them is controlling. Preston v. Chicago, 226 U. S. 447, 57 L. ed. 293, 33 Sup. Ct. Rep. 177; St. Louis & K. C. Land Co. v. Kansas City, 241 U. S. 419, 427, 60 L. ed. 1072, 1077, 36 Sup. Ct. Rep. 647; Old Colony Trust Co. v. Omaha, 230 U. S. 100, 116, 57 L. ed. 1410, 1416, 33 Sup. Ct. Rep. 967. The reference to the equal protection clause evidently is inadvertent, for there is no claim of unwarranted or arbitrary discrimination. It results from what has been said that the judgment is one which is not open to review by this court. Whit of error dismissed.

246.US.323

The jurisdiction to review a state court judgment by writ of error under Jud. Code, § 237, as amended, is confined to oases in which the validity of a treaty or statute of, or authority exercised under, the United States was drawn in question, and the decision was against the validity; and those in which the validity of a statute of, or an authority exercised under, a State was drawn in question, on the ground of repugnancy to the Constitution, treaties or laws of the United States, and the decision was in favor of the validity. When, however, the state court's judgment upholds the federal treaty, statute or authority, against the claim of invalidity, or denies the validity of the state statute or authority upon an attack based on federal grounds, or when the basis of this court's jurisdiction is a claim of federal title, right, privilege or immunity, decided for or against the party claiming, review can be had only by certiorari. The writ of error is allowed as of right, in the cases designated therefor by the statute, when the federal question presented is real and substantial, and an open one in this court; but certiorari is granted or refused by this court in the exercise of its discretion. Philadelphia& Reading Coal & Iron Co. v. Gilbert, 245 U. S. 162. The foregoing limitations apply in habeas corpus cases as in others sought to be reviewed under Jud. Code, § 237. Where a person held for interstate rendition obtained habeas corpus upon the ground that he was not a fugitive from justice, basing the contention on a construction of the indictment as to the time of the offense charged and on his view of evidence offered by him touching the time of his presence in the demanding State and his opportunity to commit the offense, held, that the contention did not draw in question the validity of the authority exercised under the arresting State by its governor in issuing his warrant and in holding the petitioner for removal, but merely the correctness of the exercise, and that a judgment of the state court holding, on the indictment and evidence, that petitioner was a fugitive, and dismissing the habeas corpus, could not be reviewed by writ of error under Jud. Code, § 237. Writ of error to review 177 App. Div. 1; 221 N. Y. 600, dismissed.

A case in interstate rendition. Upon requisition of the Governor of the state of New Jersey, representing that Ireland, plaintiff in error, was charged in that state with the crime of conspiracy and with having fled therefrom and taken refuge in New York, the Governor of the state of New York issued his warrant requiring Ireland to be arrested and delivered to the agent of the state of New Jersey to be taken back to the latter state. By virtue of the warrant defendant in error, Woods, police commissioner of the city of New York, arrested Ireland. After his arrest Ireland filed a petition in habeas corpus in the Supreme Court of New York County, State of New York, for his discharge from the custody of Woods, alleging that the arrest was illegal and that he was restrained of his liberty in violation of the provisions of subdivision 2 of section 2, art. 4, of the Constitution of the United States and of section 5278 of the Revised Statutes of the United States (Comp. St. 1916, § 10126). The basis of the charge was that he was not within the limits of the state of New Jersey at the times the alleged crimes were said to have been committed, nor was there any evidence, either before the Governor of New Jersey when that officer issued his demand upon the Governor of New York or before the latter when he issued his warrant, that he (Ireland) was within the limits of New Jersey at such times; and therefore it did not appear that he was a fugitive from the justice of New Jersey. And it was charged that it appeared on the face of the indictment that no crime under the laws of New Jersey was alleged or was committed. Woods duly made return to the petition, to which were annexed the requisition of the Governor of New Jersey and the warrant of the Governor of New York. Ireland traversed the return under oath, and denied that he had committed the crimes charged against him, or any crime; denied that he was within the state at the times that the indictment charged the crimes were committed, which he alleged to be the 1st of January, 9th of June and 12th of July, 1913, or in the state at the time of the finding of the indictment; alleged that he examined a sworn copy of the requisition of the Governor of New Jersey and that it did not contain any evidence or proof that he, Ireland, was in that state on any day in any of the months set forth in the indictment; and he further denied that he was a fugitive from the justice of the state. After a hearing, at which the papers which were before the Governor of New York at the time he issued his warrant were introduced in evidence (over the objection of Ireland), and certain oral testimony, including that of Ireland, an order was entered dismissing the writ. It was successively affirmed by the Appellate Division and the Court of Appeals. This writ of error was then sued out. It is stated in the opinion of the Appellate Division, Judge Shearn speaking for the court, that the requisition was honored upon the production of the necessary parers and that it was not claimed there was no sufficient showing before the Governor to warrant the production of the necessary papers and depending entirely on the testimony that he, Ireland, was only three times in New Jersey, none of which times was charged in the indictment. The court did not pass upon or even refer to the charge of the petition that his arrest was in violation of the Constitution of the United States or of section 5278, R. S. It rested its decision upon the sixth count of the indictment and the testimony of Ireland. The sixth count charged that the offenses were committed 'on or about the 1st day' of January, 1913, 'and on divers other days between that day and the day of the taking of the inquisition.' And the court rejected the contention made by counsel that this was merely an allegation of a crime committed on January 1st and held that the dates set forth in the count defined a period of time during any part of which the offenses could have been committed, citing Comm. v. Wood, 4 Gray (Mass.) 11; Comm. v. Snow, 14 Gray (Mass.) 20, and held further that the indictment followed the common and accepted form of pleading a continuing conspiracy, adducing Comm. v. Sheehan, 143 Mass. 468, 9 N. E. 839; Comm. v. Briggs, 11 Metc. (Mass.) 573; Comm. v. Dunn, 111 Mass. 426. Considering the effect of Ireland's concession that he was present in the state on at least three occasions during the period defined, the court held, upon the authority of certain cases, that there could be no question but that he was a fugitive from justice within the meaning of the extradition law for his presence there was not under conditions which established the impossibility of his participation in the conspiracy; that, although his stay was short on each occasion, there was an abundance of opportunity not only to confer with his alleged confederates but to hand to them the letters of credit and bogus checks which, it was alleged, were used to accomplish the overt acts. It was not considered necessary to pass upon the contentions with respect to the five other counts of the indictment. A motion to dismiss is made, the grounds of it being: (1) The judgment of the Court of Appeals is reviewable, if at all, only by certiorari. (2) It is not reviewable at all because under the limitation of the jurisdiction of the Court of Appeals it had no power to review or decide the question whether there was any evidence to show that Ireland was a fugitive from justice and that the Court of Appeals must be assumed not to have passed upon or to have decided the question whether Ireland was a fugitive from justice. Whether the assumption is justified or not we do not consider, on account of the view we entertain of the first ground of the motion, to which we immediately pass. To sustain it counsel adduces section 237 of the Judicial Code as amended September 6, 1916, chapter 448, 39 Stat. 726. It provides in what cases and how there can be a review of a judgment or decree of a state court by this court. It reads as follows: 'A final judgment or decree in any suit in the highest court of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity, may be re-examined and reversed or affirmed in the Supreme Court upon a writ of error.' When, however, the conditions are reverse, that is, when state court judgments affirm the national powers against a contention of their invalidity or do not sustain the validity of the state authority against an attack based on federal grounds, there can be review only by certiorari. And the same manner of review is prescribed where any title, right, privilege, or immunity, is claimed under the Constitution or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is either in favor of or against the claim set up. The difference between the remedies is that one (writ of error) is allowed as of right where upon examination it appears that the case is of the class designated in the statute and that the federal question presented is real and substantial and an open one in this court, while the other (certiorari) is granted or refused in the exercise of the court's discretion.1 Coming, then, to consider what was involved in the decision of the courts below, it is manifes that the validity of no national enactment or authority was drawn in question nor, in the meaning of the section, the validity of a statute or authority of the state. There is no doubt of the right of the Governor of New Jersey to have demanded of the Governor of New York the extradition of Ireland, nor of the Governor of the latter state to have complied. Indeed, it was the duty of both so to act if the case justified it, and whether there was such justification was the only inquiry and decision of the courts below. We said in Champion Lumber Co. v. Fisher, 227 U. S. 445, 451, 33 Sup. Ct. 329, 57 L. Ed. 591, that the validity of a statute of the United States or an authority exercised thereunder is drawn in question when the existence or constitutionality or legality of such statute or authority is denied, and the denial forms the subject of direct inquiry. A dispute of the facts upon which the authority was exercised is not a dispute of its validity. See, also, Foreman v. Meyer, 227 U. S. 452, 33 Sup. Ct. 331, 57 L. Ed. 594. If there be no dispute about the facts, Hyatt v. People ex rel. Corkran, 188 U. S. 691, 23 Sup. Ct. 456, 47 L. Ed. 657, might apply. And necessarily the same principle and comment are applicable when there is drawn in question the validity of a statute of or authority exercised under a state. In opposition to the motion to dismiss, plaintiff in error contends that a writ of error is the proper proceeding to bring to this court for review the final order or judgment of a state court in a habeas corpus proceeding. Undoubtedly, if the proper conditions of review by that writ exist as prescribed in the amended section 237 of the Judicial Code, supra. The argument of counsel to show that such conditions do exist in the instant case is somewhat roundabout. It begins by the assertion that the warrant under which Ireland was held in custody was an exercise of the authority of the state in that it was issued by the Governor pursuant to the provisions of section 827 of the Code of Criminal Procedure of that state. It is not necessary to quote it. It is simply the fulfillment by the state of New York of the Constitution of the United States and, it may be said, of section 5278, R. S. It enjoins the duty upon the Governor, when a requisition is made upon him by the Governon of another state, to issue his warrant for the arrest 'of a fugitive from justice.' It is upon the quoted words (which, we may say in passing, are a paraphrase of the provision of the Constitution of the United States and of section 5278, R. S.) that the argument of counsel dwells and terminates, the persistent contention being that Ireland is not such a fugitive, and that the decision of the Supreme Court at Special Term and in the Appellate Division to the contrary was based on the construction of the New Jersey indictment—a pure question of law, it is contended, and that the effect the court gave to Ireland's presence in the state at the testified times is another question of law. 'These questions were reviewable in the Court of Appeals and are open to decision in this court,' is the final insistence of counsel. We are unable to assent to the latter part of the insistence. Questions of law which may be raised upon the indictment, the deductions from the facts which may be charged against the action of the Governor, do not impugn it or the validity of the statute which enjoined it. And surely the decisions of the courts of New York, one trial and two appellate, affirming the legality of his action, are not decisions against the validity of the authority he exercised. There is a difference between a question of power to pass a law and its construction, and a difference between the endowing of an officer with authority and his erroneous exercise of that authority. As was said by Chief Justice Fuller, speaking for the court in United States v. Lynch, 137 U. S. 280, 285, 11 Sup. Ct. 114, 116 [34 L. Ed. 700]: 'The validity of a statute is not drawn in questi n every time rights claimed under such statute are controverted, nor is the validity of an authority, every time an act done by such authority is disputed.' We think, therefore, that the writ of error must be and it is Dismissed.

244.US.174

Section 7 of the Act of March 3, 1891, c. 561, 26 Stat. 1095, 1099, lays upon the Secretary of the Interior a plain duty to cause a patent to be issued upon a homestead entry when no contest or protest proceeding has been initiated and no order has been made, in his Department, for the purpose of challenging the validity of the entry, within two years from the issuance of the final receiver's receipt. An adverse report by a deputy supervisor of a National Forest, challenging a homestead entry within the forest for insufficiency of residence and cultivation, but merely filed in the General Land Office and not acted on until after the two year limitation period had expired, Held not a "pending contest or protest" within the meaning of § 7 of the Act of March 3, 1891, supra. Notwithstanding its reluctance to award or sustain a writ of mandamus against an executive officer, the court is constrained to do so where the duty sought to be enforced is plain and nondiscretionary and the situation exigent. 44 App. D. C. 310, affirmed.

This is a petition for a writ of mandamus against the Secretary of the Interior. In the court of first instance the writ was refused, but the court of appeals directed that it be granted (44 App. D. C. 310), and our jurisdiction arises out of the fact that the construction of a statute of the United States and the duty of the Secretary of the Interior thereunder are drawn in question. The statute is the following provision in § 7 of the Act of March 3, 1891, chap. 561, 26 Stat. at L. 1095, 1099, Comp. Stat. 1916, §§ 5116, 5113: 'That after the lapse of two years from the date of the issuance of the receiver's receipt upon the final entry of any tract of land under the homestead, timber-culture, desert-land, or pre-emption laws, or under this act, and when there shall be no pending contest or protest against the validity of such entry, the entryman shall be entitled to a patent conveying the land by him entered, and the same shall be issued to him.' What is meant by a 'pending contest of protest' is the question under the statute. The facts are not in dispute and are these: In 1902 Svan Hoglund settled upon and made preliminary entry under the homestead law of a tract of public land in the Eureka land district of California. In 1905 the land was included within a national forest reserve by a proclamation of the President (34 Stat. at L. 3001), which contained the following excepting clause: 'Excepting from the force and effect of this proclamation all lands which may have been, prior to the date hereof, embraced in any legal entry or covered by any lawful filing duly of record in the proper United States land office, or upon which any valid settlement has been made pursuant to law, and the statutory period within which to make entry or filing of record has not expired; Provided, that this exception shall not continue to apply to any particular tract of land unless the entryman, settler or claimant continues to comply with the law under which the entry, filing or settlement was made.' In due time thereafter, and after due notice by publication of his purpose so to do, Hoglund submitted final proof of compliance with the homestead law and of his right to obtain the title. The proof was accepted as satisfactory by the local officers, and on August 6, 1907, a receiver's receipt and a register's certificate upon final entry were regularly issued to him. May 29, 1909, a report from a deputy forest supervisor recommending the cancelation of the entry 'on account of nonresidence and lack of cultivation' was received at the General Land Office. The report indicated that the entryman was a single man, and had a three-room house, a small barn, and some fencing on the land; that he had 3 acres plowed and under cultivation; that the land had much valuable timber thereon, but none had been cut except for improvements, and that the entryman had established actual residence on the tract in June, 1902, but had really lived thereon only at unnamed periods, 'going away to work for wages four or five months at a time.' No action upon this report was taken until April 19, 1910. On that day, almost three years after the date of the receiver's receipt, the Commissioner of the General Land Office ordered a proceeding in the local land office to determine whether the entryman had established and maintained a residence upon the land. Notice of this was given to him—apparently it was his first information that his entry was called in question—and a hearing was had. The local officers and the Commissioner of the General Land Office in turn found the facts in his favor, but the Secretary of the Interior found them the other way and ruled that the entry was not confirmed or protected by the provision in § 7 of the Act of March 3, 1891, supra. 42 Land Dec. 405; 43 Land Dec. 538 and 540. The Secretary directed that the entry be canceled and the present petition was then filed. It prayed for a writ of mandamus commanding the Secretary to recall the order for the cancelation of the entry, to reinstate the entry upon the records, and to cause a patent to be issued to the entryman. For present purposes no importance attaches to the creation of the forest reserve after the primary and before the final entry. The entryman was free, under the terms of the President's proclamation, to proceed with the steps essential to obtain a final entry and ultimately the full title, and to such a final entry the statute—the provision in § 7—has the same application as if the land were without instead of within the reserve. The statute makes it very plain that if, at the expiration of two years from the date of the receiver's final receipt, there is no 'pending contest or protest' against the entry, its validity no longer may be called in question; in the words of the act, 'the entryman shall be entitled to a patent . . . and the same shall be issued to him.' The purpose to fix his right and to command its recognition is obvious. What, then, is the 'pending contest or protest' which is to exclude a subsisting entry from this statute of limitation and repose? Is it some proceeding which is begun, ordered, or set in motion in the interest of another claimant or of the public, to test or determine the validity of the entry? Or may it be a mere report, letter, or other communication, confidential or otherwise, which has not been and may never be acted upon, which may be neither known nor accessible to the entryman, or which may be so general, vague, or intemperate in its statements as not in itself to merit attention? Independently of the occasion for the enactment and of the practice of the Land Department, there hardly could be any difference of opinion about the answer. And when these are understood we think there is no room whatever for a difference; in short, the reference is to a proceeding against the entry, and not to some communications which, at most, is only suggestive of the propriety of such a proceeding, and may never become the basis of one. As applied to public land affairs the term 'contest' has been long employed to designate a proceeding by an adverse or intending claimant, conducted in his own interest, against the entry of another, and the term 'protest' has been commonly used to designate any complaint or objection, whether by a public agent or a private citizen, which is intended to be and is made the basis of some action or proceeding in the public right against an existing entry. This explains the use in the statute of both terms in the disjunctive, and accords with the instructions of May 8, 1891 (12 Land Dec. 450), wherein each term is spoken of as meaning a 'proceeding' under the Rules of Practice to cancel or defeat an entry, and wherein it is said that 'when there are no proceedings initiated within that time [the two years] by the government or individuals, the entryman shall be entitled to patent.' The same view is shown in the supplemental instructions of July 1, 1891 (13 Land Dec. 1), wherein the Secretary said to the Commissioner: 'You will, therefore, approve for patent all entries against which no proceedings were begun within the period of two years the date of the final certificate, but where proceedings have been, or shall be, begun within the specified period, the entry will be held to have been taken out of the operation of this statute, and such cases will proceed to final judgment as heretofore.' Subject to some exceptions and qualifications which need not be specially noticed, this continued to be the view and practice of the Land Department for many years, and in conformity therewith many thousands of entries were carried to patent or otherwise, as their particular facts caused them to fall upon one side of the line or the other. But in the case of Re Traganza, 40 Land Dec. 300, decided November 17, 1911, a sharp departure was taken from the earlier view, and it was held that the statute has 'no reference to proceedings by the United States, or its officers or agents,' against such entries, and does 'not affect the conduct or action of the Land Department in taking up and disposing of final proof of entrymen after the lapse of two years mentioned in the act.' That view, however, did not long have the approval of the Department. In the case of Re Harris, 42 Land Dec. 611, decided December 13, 1913, the subject was reconsidered, attention being given to the occasion for the enactment and to its prior administration, and the conclusion was reached that the earlier view, long maintained, was right and that the practice thereunder should be restored. In that case, as in this, a forest officer reported that the claimant had not established or maintained a residence upon the land, and no action was taken on the report until after the expiration of the two-year period. But in that case the entry was held to be confirmed under the statute, while here the ruling was the other way. Of the situation which prompted the enactment of the statute it was said in the decision of that case: 'The records of this Department disclose that, during several years preceding 1891, a very large number of entries were suspended by the General Land Office on vague and indefinite suggestions of fraud or noncompliance with law, to await investigation by special agents of that bureau. These suspensions were so numerous and the force available for investigation was so insufficient as to create a practical blockade in the issuance of patents, to the serious prejudice of bona fide claimants under the public land laws. In many instances, the charge or suggestion upon which the suspension was ordered had no foundation of fact other than the proximity of the land to other tracts embraced in entries alleged to be fraudulent or otherwise illegal. The reports of this Department to the public land committees of the Senate and House of Representatives, concerning this legislation, and the debates of those bodies thereon, leave no doubt of the purpose of Congress that said proviso should correct the hardship of this situation and provide against a repetition thereof.' 'Passed, primarily, to rectify a past and to prevent future abuses of the departmental power to suspend entries, the proviso is robbed of its essential purpose and practically repealed by the decision in the Traganza Case. . . . 'Upon mature consideration, the Department is convinced that a contest or protest, to defeat the confirmatory effect of the proviso, must be a proceeding sufficient, in itself, to place the entryman on his defense, or to require of him a showing of material fact, when served with notice thereof.' That decision was followed in Re Judicak, 43 Land Dec. 246; Re Crowther, 43 Land Dec. 262; Instructions, 43 Land Dec. 294 and 322. Looking, then, at the statute in the light of all that bears upon its purpose and meaning, we think it certainly and unmistakably lays upon the Secretary of the Interior, as the head of the Land Department, a plain duty to cause a patent to be issued to a homestead entryman whenever it appears, as concededly it did in this instance, that two years have elapsed since the issue of the receiver's receipt upon the final entry, and that during that period no proceeding has been initiated or order made which calls in question the validity of the entry. In the exercise of its discretion Congress has said, in substance, by this statute, that for two years after the entryman submits final proof and obtains the receiver's receipt the entry may be held open for the initiation of proceedings to test its validity, but that if none such be begun within that time, it shall be passed to patent as a matter of course. Thus in a case like this, where, according to the conceded facts, no proceeding was begun within the prescribed period, there is no room for the exercise of discretion or judgment, but, on the contrary, a plain duty to see that the entryman receives a patent. True, this court always is reluctant to award or sustain a writ of mandamus against an executive officer, and yet cases sometimes arise when it is constrained by settled principles of law and the exigency of the particular situation to do so. Kendall v. United States, 12 Pet. 524, 9 L. ed. 1181; United States v. Schurz, 102 U. S. 378, 26 L. ed. 167; Roberts v. United States, 176 U. S. 221, 44 L. ed. 443, 20 Sup. Ct. Rep. 376; Garfield v. United States, 211 U. S. 249, 53 L. ed. 168, 29 Sup. Ct. Rep. 62; Ballinger v. United States, 216 U. S. 240, 54 L. ed. 464, 30 Sup. Ct. Rep. 338. An see Noble v. Union River Logging R. Co. 147 U. S. 165, 37 L. ed. 123, 13 Sup. Ct. Rep. 271; American School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 47 L. ed. 90, 23 Sup. Ct. Rep. 33. This, we think, is such a case. As quite apposite we excerpt the following from the unanimous opinion in Roberts v. United States, 176 U. S. 221, 231, 44 L. ed. 443, 447, 20 Sup. Ct. Rep. 376: 'Unless the writ of mandamus is to become practically valueless, and is to be refused even where a public officer is commanded to do a particular act by virtue of a particular statute, this writ should be granted. Every statute to some extent requires construction by the public officer whose duties may be defined therein. Such officer must read the law, and he must therefore, in a certain sense, construe it, in order to form a judgment from its language what duty he is directed by the statute to perform. But that does not necessarily and in all cases make the duty of the officer anything other than a purely ministerial one. If the law direct him to perform an act in regard to which no discretion is committed to him, and which, upon the facts existing, he is bound to perform, then that act is ministerial, although depending upon a statute which requires, in some degree, a construction of its language by the officer. Unless this be so, the value of this writ is very greatly impaired. Every executive officer whose duty is plainly devolved upon him by statute might refuse to perform it, and when his refusal is brought before the court he might successfully plead that the performance of the duty involved the construction of a statute by him, and therefore it was not ministerial, and the court would, on that account, be powerless to give relief. Such a limitation of the powers of the court, we think, would be most unfortunate, as it would relieve from judicial supervision all executive officers in the performance of their duties, whenever they should plead that the duty required of them arose upon the construction of a statute, no matter how plain its language, nor how plainly they violated their duty in refusing to perform the act required.' We therefore conclude that the Court of Appeals rightly directed that the writ be granted. Judgment affirmed.

246.US.121

Where the state trial and supreme courts have successively found sufficient evidence of negligence to sustain a verdict for plaintiff in an action under the Employers' Liability Act, it is not the province of this court to weigh the conflicting evidence on the subject; it will go no farther than to ascertain that there is evidence supporting the verdict. The Federal Boiler Inspection Act, c. 103, 36 Stat. 913, is a "statute enacted for the safety of employees," within the meaning of § 4 of the Federal Employers' Liability Act, which latter eliminates assumption of risk in cases where the violation of such a statute contributes to the injury or death of the employee. Where there was evidence tending to prove that a locomotive boiler which exploded was unsafe in that the button-heads on the bolts of the crown-sheet over the fire-box were unnecessarily large, and subject to deterioration from overheating, when oil was used for fuel; and in that the boiler was not provided with fusible safety plugs and had an accumulation of scale; held, that a request for an instruction stating that no safety statute was applicable, and submitting the question of assumed risk, was inconsistent with § 4 of the Employers' iUability Act and § 2 of the Boiler Inspection Act. The court instructed to the effect that if the jury believed from a fair preponderance of the evidence that the boiler was not in the proper condition, etc., defined by § 2 of the Boiler Inspection Act, due to the defendant's negligence in any of the respects above mentioned, there would be no assumption of risk, but that if it was in such condition, but due to defendant's negligence was defective in any of such respects, and the employee had actual knowledge of such defects or they were so plainly visible that in the reasonable exercise of his faculties he should, and might be presumed to, have known them, then he assumed the risk. Held, more favorable to the defendant than the law required. Testimony ]eld not to show an approval by federal boiler inspectors of the use of the large type of button-head on an oil-burning engine. When a feature of construction renders a boiler unsafe, within the definition of § 2 of the Boiler Inspection Act, the fact that it has not been disapproved by a federal inspector does not absolve the carrier from liability. 89 Washington, 161, affirmed.

Adaline Donaldson, as administratrix of the estate of Vance H. Thoms, deceased, brought suit in the superior court of Snohomish county, Wash., under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. § . 1916, §§ 8657-8665]), to recover damages for injuries received which resulted in the death of Vance H. Thoms, by reason of a boiler explosion upon one of the defendant's engines upon which decedent was employed as an engineer. The charges of negligence, in the amended complaint alleged to have resulted in the injury and death of the decedent were: That the boiler on the engine was insufficient in that: 1. The button heads of the crown bolts of the boiler were excessively and unnecessarily large and consequently unduly exposed to the direct heat produced by the oil fuel used on the locomotive; 2. That the boiler was not provided with fusible safety plugs;3. That scale was negligently allowed by defendant company, its officers and employes, to accumulate upon the crown sheet in the boiler. The answer of the company denied negligence, and specifically set up the defense of contributory negligence and assumed risk on the part of the deceased. In the trial court the plaintiff recovered a verdict and judgment, and the judgment was affirmed in the Supreme Court of the state of Washington. 89 Wash. 161, 154 Pac. 133. The ground of reversal principally urged here is that the testimony did not warrant a recovery by the plaintiff, and when properly considered required an instruction to the jury to find a verdict in favor of the company. An examination of the record discloses that there was testimony tending to support the allegations of negligence set forth in the amended complaint. That the engine upon which the deceased was working had been a coal-burning engine but that at the time of the explosion the fuel used in its operation was, and for some time had been, oil. That the button heads on the bolts of the crown sheet at the top of the fire box (this sheet also formed the bottom of the water compartment over the fire box) were large ones when the engine was fired with coal, and were not changed with the change of fuel from coal to oil. That these button heads because of their size became overheated when oil was used for fuel, resulting in the deterioration and weakening of the strength of their material, and from the consequent giving away of the button heads, the crown sheet came down and the explosion resulted. There is also testimony tending to show that there was an accumulation of scale and a want of use of fusible plugs. On the part of the company there was testimony tending to meet and refute that introduced by the plaintiff, and a considerable amount of testimony was introduced tending to show that the water in the boiler was too low, thereby causing the explosion from the fault of the deceased engineer in allowing it to become so. There was testimony for the plaintiff to the effect that the water was not too low at the time of the explosion. The trial court submitted these issues to the jury, with the result that a verdict was found in favor of the plaintiff. The circuit court held that there was evidence sufficient to sustain the verdict, and refused to disturb it. The Supreme Court of Washington affirmed the judgment. In this situation it is enough to say that it is not the province of this court to weigh conflicting evidence. The record shows testimony supporting the verdict, and that is as far as this court enters upon a consideration of that question. Complaint is made that the trial court failed to give an instruction requested by the company as to assumption of risk, and as to the effect of the federal Boiler Inspection Act. Section 4 of the federal Employers' Liability Act (35 Stat. 65) provides: 'That in any action brought against any common carrier under or by virtue of any of the provisions of this act to recover damages for injuries to, or the death of, any of its employes such employe shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe.' Comp. St. 1916, § 8660. That the federal Boiler Inspection Act was enacted for the safety of employes is obvious. Section 2 of that act (Act Feb. 17, 1911, c. 103, 36 Stat. 913 [8 U. S. Comp. Stats. 1916, § 8631]) provides: 'That from and after the first day of July, nineteen hundred and eleven, it shall be unlawful for any common carrier, its officers or agents, subject to this act to use any locomotive engine propelled by steam power in moving interstate or foreign traffic unless the boiler of said locomotive and appurtenances thereof are in proper condition and safe to operate in the service to which the same is put, that the same may be employed in the active service of such carrier in moving traffic without unnecessary peril to life or limb, and all boilers shall be inspected from time to time in accordance with the provisions of this act, and be able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for.' Counsel for the company at the trial upon assumed risk requested the following charge: 'You are instructed that even where an employer, such as a railroad company, is negligent in the construction or maintenance of its tools or equipment, such as a locomotive, yet an employe who accepts, or continues his employment, knowing of the existence of such defects or negligence, and knowing the danger therefrom, assumes the risk of the injury to himself from such defects and cannot recover if he is injured as a result of them. This would not be true in the present case, if the negligence or defects involved some violation of a United States statute, but there is no evidence of any violation of such a statute in this action, so that the rule which I have just given to you would apply in this case. Therefore, even if you find that the defendant company had been negligent in adopting an improper type of bolt, or in failing to install fusible plugs, or in some other particular in the construction or maintenance of this boiler, and even though you should also find that such negligence caused the explosion, still, the plaintiff cannot recover in this action, if you should also find that the deceased, V. H. Thoms, was familiar with the type of construction used, or the particular form of negligence involved, and knew the danger likely to arise therefrom, or if, in the exercise of a reasonable care, he should have known of these things prior to the time of his injury.' 'You are instructed that the law provides that it shall be unlawful for any common carrier, as was the defendant, engaged in interstate commerce, to use any locomotive engine propelled by steam power, unless the boiler of the locomotive and appurtenances thereof are in proper condition and safe to operate in the service to which the same is put, that the same may be employed in the active service of said carrier in moving traffic, without unnecessary peril to life and limb; and that no employe shall be deemed to have assumed any risk of death by reason of any locomotive engine operated in violation of said law, and that no employe injured or killed by reason of a locomotive engine operated in violation of said law shall be held to have been guilty of contributory negligence. 'Therefore, if you shall believe, from a fair preponderance of all the evidence in the case, that the boiler of the locomotive engine No. 1902 or the appurtenances thereof were not in proper condition and safe to operate in the active service of the defendant in moving traffic without unnecessary peril to life or limb, by reason of the negligence of the defendant, in any one or more of the three respects alleged in the complaint, then and in that case Vance H. Thoms assumed no risk of death and was guilty of no contributory negligence, and the affirmative defenses must fail. 'However, if such boiler and appurtenances were in proper condition and safe for such use in moving traffic, but due to defendant's negligence were defective i one or more of the respects alleged in the complaint and Vance H. Thoms had actual knowledge of such defect or defects, or such defects were so plainly observable that in the reasonable exercise of his faculties he should have known of such and may be presumed to have known thereof and the dangers that surrounded him then Vance H. Thoms assumed the risks of injury and the plaintiff cannot recover in this action.' The charge requested is inconsistent with the provisions of section 4 of the federal Employers' Liability Act and section 2 of the Boiler Inspection Act. As given it is enough to say that it is more favorable to the company than the law requires. See Chesapeake & Ohio Ry. v. Proffitt, 241 U. S. 462, 468, 36 Sup. Ct. 620, 60 L. Ed. 1102. The further contention is that the effect of this charge was to leave to the jury to determine the type of boiler construction, in respect to the use of the large button heads which are alleged to have made the engine unsafe to operate. And it is contended that there is testimony tending to show that the use of either the large or small kind of button heads was approved by the federal department of boiler inspection. Attention is directed to the testimony of an expert witness, offered by the defendant for the purpose of showing that low water was the cause of the explosion, in which he spoke of the use of the button heads of the larger and also of the smaller or taperhead kind, and was asked whether the United States government made certain requirements as to how boilers and engines should be constructed, to which he answered: 'No. Not as long as we have the proper factor of safety. * * * They have a factor of safety, and the factor of safety is five on the shell of the boilers; that is if we have a 200-pound pressure boiler it should stand up to a test of 1,000 pounds; five to one.' Asked whether the government inspects engines and locomotives in general, he answered, 'Yes, by the United States inspector.' and that there was a standard to which locomotives must be built in order to pass inspection. Asked as to the type of the crown bolt permitted, he answered that either type is acceptable when properly applied. It is evident that this testimony, whatever might be its effect, is far from showing an approval by governmentinspectors of the use of the large type of button head upon an oil-burning engine. Nor can we agree with the contention of the plaintiff in error that so long as the large button head had not been disapproved by the government inspector such fact is conclusive of the sufficiency of the type in use. We find nothing in the Boiler Inspection Act to warrant the conclusion that there is no liability for an unsafe locomotive, in view of the provisions of section 2 of the act, because some particular feature of construction, which has been found unsafe has not been disapproved by the federal boiler inspector. Other errors are assigned, so far as they are open here we have examined these assignments and find in none of them reason for the reversal of the judgment of the Supreme Court of Washington, and that judgment is Affirmed.

246.US.28

The Act of June 25, 1910, c. 423, 36 Stat. 851, providing, in part, that when patented inventions are used by the United States without license from the owner, or lawful right., the owner may recover reasonable compensation for such use in the Court of Claims, is not to be construed as automatically conferring a general license on the Government to use such inventions and as thereby authorizing their use at the will of private parties in the manufacture of things to be furnished under contracts between them and the United States. Where, therefore, a company entered into a contract with the United States to build certain vessels which was based on specifications, submitted or approved by the Navy Department, covering in detail the structure, engines, etc., but which contract expressly provided for protecting the Government against any claims which might arise from the infringement by the contractor of the rights of any patentee; and in constructing the vessels installed therein certain patented engines without the consent of the patent owners; held, that the Act of June 25, 1910, supra, did not operate to relieve the contractor from liability to account for the damages and profits arising from the infringement. The purpose of the statute is to give further security to the rights of patentees by permitting suit and recovery of compensation in the Court of Claims in those cases where their inventions are availed of for the benefit of the United States by officials of the Government, in dealing with subjects within the scope of their authority, but under circumstances not justifying the implication of contract with the patentees. Aside from exceptional cases where the authority of the United States to take under eminent domain may be said to be exerted in reliance upon this provision for compensation, the act contemplates the possibility of official error or mistake in the invasion of such rights; it does not contemplate the deliberate and wrongful appropriation of such constitutionally protected property by official authority, much less does it intend that mere contractors with the Government may make such appropriations without compensation, in the work under their contracts, upon the assumption that the United States ultimately will be liable under the statute for the rights so elected to be taken. Crozier v. Krupp, 224 U. S. 290, explained and distinguished. 238 Fed. Rep. 564, affirmed.

The history of this suit from its commencement up to the development of the controversy now before us, will be shown by an examination of the decided cases referred to in the margin.1 We shall therefore not recur to that which has gone before but confine our statement to the things essential to an understanding of the phase of the issue which we must now decide. Under proposals submitted by the Navy Department the petitioner, the Cramp Company, in 1908 contracted to build two torpedo boat destroyers, Nos. 30 and 31, and in 1911 further contracted to build four such boats, Nos. 47, 48, 49 and 50. The specifications submitted by the department as to structure, engines, etc., were comprehensively detailed and the contracts were based either upon the acceptance of such specifications or upon such changes suggested by the contractor as met the approval of the Navy Department. The contracts contained an express provision, which is in the margin,2 protecting the government against any claims which might arise from the infringement by the contractor of the rights of any patentee, if any such rights there were. The Turbine Companies filed their bill against the Cramp Company to recover damages and profits accruing from the infringement of certain patents on turbine engines which the Cramp Company had placed in the boats built under the contract of 1908. Ultimately this claim of infringement was upheld by the Circuit Court of Appeals for the Third Circuit. 211 Fed. 124, 127 C. C. A. 522. On the hearing which then ensued before a master as to damages and profits, the Turbine Companies urged their claim and tendered their proof concerning the same, covering the four destroyers, Nos. 47, 48, 49 and 50, built under the contract of 1911, upon the ground of an infringement like that which had been committed as to the boats built under the contract of 1908. Rubber Co. v. Goodyear, 9 Wall. 805, 19 L. Ed. 828. The inquiry was objected to on the ground of its irrelevancy because liability for infringement under the contract of 1911 was to be tested by a different rule from that which was applicable to the boats contracted for in 1908 in consequence of the applicability to the 1911 contracts of the Act of Congress of June 25, 1910, c. 423, 36 Stat. 851. Under that law, it was insisted: 'The United States, by act of eminent domain, acquired a license to use the invention of all existing patents, and, therefore, the transactions under the contracts for torpedo boat destroyers Nos. 47, 48, 49 and 50, being merely the building of devices for a licensee under the patent in suit, were licensed transactions, and consequently are not within the scope of this accounting.' The master overruled the objection but thereafter on request certified the subject to the District Court where his ruling was held to be wrong on its merits and reversed. On a rehearing the court sustained the view which it had previously taken of the subject by a reference to a decision of the Circuit Court of Appeals for the Second Circuit. Marconi Wireless Telegraph Co. v. Simon (D. C.) 227 Fed. 906; Id., 231 Fed. 1021, 145 C. C. A. 656; (D. C.) 232 Fed. 166. Application was then made to the Circuit Court of Appeals by certiorari to review this ruling and by mandamus to compel the master to proceed with the hearing in accordance with the claims of the Turbine Companies. Finding that the ruling in the Marconi Case was pending in this court for review, the Court of Appeals postponed deciding the issue of statutory construction to await the decision of this court, but directed the accounting to proceed as to both classes of contracts in such a manner as to enable the authoritative ruling on the statute when made by this court to be applied without confusion or delay. 238 Fed. 564, 151 C. C. A. 500. The writ of certiorari on which the case is now before us was then allowed and this and the Marconi Case referred to by the court below were argued and submitted upon the same day. The single question is, did the provisions of the Act of 1910 operate without more to confer upon the United States a license to use the patents of the Turbine Companies; and if so, was the Cramp Company as a contractor authorized to avail itself of the license by using the patent rights of the Turbine Companies without their consent? Avowedly on the very face of the act its purpose was not to weaken the rights of patentees, but to further secure them. This results not only from the title of the law (An act to provide additional protection for owners of patents of the United States, and for other purposes), but further from the report of the committee of the House of Representatives where the act originated which stated that such was the purpose intended to be accomplished by the act. (House Report No. 1288, 61st Congress, 3d Session.) The conflict between the purpose thus intended and the construction now claimed for the act is evident unless it can be said that to confer by anticipation upon the United States by a law universally and automatically operating a license to use every patent right is a means of giving effect to a provision of a statute avowedly intended for the further securing and protecting of such patent rights. But passing deducing the meaning of the act from its title and the report of the committee by which it was drafted, it is apparent that the significance which the contention affixes to it is directly in conflict with the text (which is in the margin3), since that text expressly declares that the object of the act is to secure compensation for patentees whose rights have been 'used by the United States without license'—the very antithesis of a right by license o use all patents which is the purpose attributed to the act by the argument. And this is made clearer by considering that the statute itself in directing the proceedings which must be resorted to in order to accomplish its avowed purpose, exacts the judicial ascertainment of conditions which would be wholly negligible and irrelevant upon the assumption that the statute intended to provide in favor of the United States the general license right which the argument attributes to it. This conclusion cannot be escaped when it is considered that if the license, which it is insisted the act in advance created, obtained in favor of the United States, the inquiry into the question of infringement by the United States for which the statute provides would be wholly superfluous and indeed inconsistent with the assumption of the existence of the supposed license. But let us in addition pass these latter considerations and come not only to demonstrate the error of the construction asserted but to make manifest the true meaning of the statute from a twofold point of view; that is, first, from an analysis of the context of the statute as elucidated by the indisputable principles which at the time of the adoption of the act governed the subjects with which it dealt, and, second, from the consideration of the context and the effect upon it of the ruling in Crozier v. Krupp, 224 U. S. 290, 32 Sup. Ct. 488, 56 L. Ed. 771. At the time of the enactment of the law of 1910 the following principles were so indisputably established as to need no review of the authorities sustaining them, although the leading cases as to all the propositions are referred to in the margin.4 (a) That rights secured under the grant of letters patent by the United States were property and protected by the guarantees of the Constitution and not subject therefore to be appropriated even for public use without adequate compensation. (b) That although the United States was not subject to be sued and therefore could not be impleaded because of an alleged wrongful taking of such rights by one of its officers, nevertheless a person attempting to take such property in disregard of the constitutional guarantees was subject as a wrongdoer to be controlled to the extent necessary to prevent the violation of the Constitution. But it was equally well settled as to patent rights, as was the case with all others, that the right to proceed against an individual, even although an officer, to prevent a violation of the Constitution did not include the right to disregard the Constitution by awarding relief which could not rightfully be granted without impleading the United States, or, what is equivalent thereto, without interfering with the property of the United States possessed or used for the purpose of its governmental functions. (c) That despite the want of authority to implead the United States, yet where an officer of the United States, within the scope of an official authority vested in him to deal with a particular subject, having knowledge of existing patent rights and of their validity, appropriated them for the benefit of the United States by the consent of the owner, express or implied, upon the conception that compensation would be thereafter provided, the owner of the patent right taken under such circumstances might, under the statute law of the United States permitting suits against the United States on contracts express or implied, recover by way of implied contract the compensation which might be rightly exacted because of such taking. (d) That where an officer of the United States in dealing with a subject within the scope of his authority infringed patent rights by a taking or use of property for the benefit of the United States without the conditions stated justifying the implication of a contract, however serious might be the infringement or grave to the holder of the rights the consequences of such infringement, the only redress of the owner was again t the officer, since no ground for implying a contract and securing compensation from the United States obtained. Coming to consider the statute in the light of these principles, there would seem to be no room for controversy that the direct and simple provision, 'that whenever an invention described in and covered by a patent of the United States shall hereafter be used by the United States without license of the owner thereof or lawful right to use the same, such owner may recover reasonable compensation for such use by suit in the Court of Claims,' embraces and was intended alone to provide for the discrepancy resulting from the divergence between the right in one case to sue on an implied contract and the non-existence of a right to sue in another. And this meaning becomes irresistible when the concordance which it produces between the title and the report of the committee is considered on the one hand, and the discord which would arise on the other from reading into the statute the theory of automatic and general license as to every patent which the argument presses. Observe that the right to recover by implied contract as existing prior to 1910 and the right to recover given by that act both rest upon the possession and exertion of official authority, although from the absence of definition in the statute the precise scope of the official power possessed in order to bring the authority into play is not specified but is left to be deduced from the application of general principles. Observe further that, resting thus upon the exercise of official power it was not assumed before the act of 1910 or under that act, that the official authority would consciously and intentionally be exerted so as to violate the Constitution by wrongfully appropriating private property. This follows from a twofold point of view: First, because the basis of the right to sue on implied contract is the fact that official power recognizing the patent right and the at least implied assent of the owner, had acted in reliance upon the fact that adequate compensation would follow the taking. And second, because in conferring the right to prove infringement, the act of 1910 obviously contemplates the possibility of the commission of official error or mistake on that subject and afforded a remedy for its correction and resulting compensation. Thus it is true to say that under both views the theory of its universal and automatic appropriation by the United States of a license to use all patent rights is unsupported, since both views assume that official authority would not be willfully exerted so as to violate the Constitution, and this although it be that the act of 1910 embraces the exceptional case where, because of some essential governmental exigency or public necessity, the authority of the United States is exerted to take patent rights under eminent domain in reliance upon the provision to recover the adequate compensation which the act of 1910 affords. And this fundamental characteristic at once exposes the want of foundation for the contention that because the statute made provision for giving effect to acts of official power in taking patent rights under the conditions stated and even when necessary of curing defects in the exertion of such power, therefore it is to be assumed that the statute conferred upon all who contracted with the United States for the performance of work a right to disregard and take without compensation the property of patentees. This must be, since the making of a contract with the United States to perform duties in favor of the United States does not convert the contractor into an official of the United States qualified to represent it and to entail obligations on it which under the terms of the statute can alone rest upon official action and the discharge of official duty. The and the resulting obligation to perform and the resulting obligation to perform duties in favor of the United States by necessary implication impose the responsibility of performance in accordance with the law of the land; that is, without disregarding the rights or appropriating the property of others. A contractor with the United States, therefore, is in the very nature of things bound to discharge the obligation of his contract without violating the rights of others, and merely because he contracts with the United States is not vested with the power to take the property of others upon the assumption that as a result of the contract with the United States he enjoys the right to exercise public and governmental powers possessed by the United States. Nor is there any foundation for the assumption that the ruling in Crozier v. Krupp, 224 U. S. 290, 32 Sup. Ct. 488, 56 L. Ed. 771, is in conflict with these self-evident propositions and by necessary implication sanctions the theory of universal license in favor of the United States as to all patent rights and the asserted resulting authority in contractors with the United States for the purpose of the execution of their contracts to disregard and appropriate all such rights. Stated as briefly as we possibly can the case was this: In the arsenals of the United States guns and gun carriages were constructed containing appliances which it was asserted infringed patent rights of the Krupp Company. A bill was filed against Crozier, who was Chief of Ordinance of the United States, to enjoin the alleged violation of the asserted patent rights. Crozier demurred to the amended bill on the ground that the court had no jurisdiction because the suit was one against the United States. The trial court dismissed the bill. The Court of Appeals of the District of Columbia reversed because, although it fully conceded there was no jurisdiction over the United States and no power to interfere with its public property or duties, it yet considered that there was jurisdiction to restrain the individual, although an officer, from continuing to take property without compensation in violation of the Constitution. A certiorari was granted. It was stipulated in the cause that the structures complained of had been made in all the arsenals of the United States by Crozier, the Chief of Ordinance, and by the United States, and that the United States had asserted the right, and proposed to continue, to make the guns and gun carriages in the future for its governmental purposes and denied the violation of any patent right. It was also stipulated that the Chief of Ordinance had made no profits and that all claims were waived except the claim of right to a permanent injunction at the termination of the suit to prevent the use of the appliances in the future. And that was the solitary issue which here arose for decision. It was held that in view of the admission as to the nature and character of the acts done by the United States and further in view of the power of the United States to take under eminent domain the patent rights asserted, the provisions of the statute affording a right of action and compensation were adequate to justify the exercise of such power. In accordance with this ruling it was decided that there was no right to an injunction against the Chief of Ordinance as an individual and the parties if their rights had been infringed were relegated to the compensation provided under the act of 1910. In reaching this conclusion the statute was critically considered principally for the purpose of determining whether the right to recover compensation which the act afforded was adequate to fulfill the requirements of compensation for rights taken as protected by the Constitution. It is true in the analysis which was made of the statute for this purpose it was said that the consummated result of the act of 1910 in any particular case was to confer upon the United States a license to use the patent right (page 305). But the use of the word 'license' affords no room for holding that it was decided that the statute provided for the appropriation by anticipation and automatically of a license to the United States to u e the rights of all patentees as to every patent. And clearer yet is it that the use of the word 'license' affords no ground for the proposition that the statute invested every person contracting with the United States for the furnishing of material or supplies or for doing works of construction with public powers and transferred to them the assumed license to violate patent rights to the end that they might be relieved of the obligations of their contracts and entail upon the United States unenumerated and undetermined responsibility upon the assumption that the United States would be ultimately liable for the patent rights which the contractors might elect to take. Through abundance of precaution, however, we say that if any support for such contentions be susceptible of being deduced from the use of the word 'license' in the passage referred to, then the word must be and it is limited, as pointed out by the context of the opinion and by what we have said in this case, to the nature and character of use which was contemplated by the statute and which is consonant with the execution of its limited though beneficent purpose and not destructive of the same. Under the view which we have stated it follows that the court below did not err in ordering the accounting under the 1911 contracts to proceed so that the statute when correctly construed might be applied. To the end, therefore, that effect may be given to such accounting as ordered by the court below our decree will be The order of the Circuit Court of Appeals to the extent that it directed the accounting to be made on the basis therein stated is affirmed and the decree of the District Court is reversed and the case is remanded to the District Court for further proceedings in conformity with this opinion.

244.US.590

The business of securing honest work for the unemployed in return for an agreed consideration is a useful and legitimate business which, though subject to regulation under the state police power, cannot be forbidden by an act of a State without violating the guaranty of liberty secured by the Fourteenth Amendment. A law forbidding employment agents from receiving fees from the workers for whom they find places in effect destroys their occupation as agents for workers, and cannot be sustained upon the ground that the fees may be charged against employers. Washington Initiative Measure Number 8 (popularly known as "The Employment Agency Law,") as construed by the Supreme Court of the State, is contrary to the Fourteenth Amendment. Decree of the District Court reversed.1

Initiative Measure Number 8—popularly known as 'The Employment Agency Law'—having been submitted to the people of Washington at the general election, received a majority vote and was thereafter declared a law, effective December 3, 1914, as provided by the state Constitution. Wash Laws 1915, chap. 1. It follows: 'Be it enacted by the people of the state of Washington: 'Section 1. The welfare of the state of Washington depends on the welfare of its workers and demands that they be protected from conditions that result in their being liable to imposition and extortion. 'The state of Washington therefore exercising herein its police and sovereign power declares that the system of collecting fees from the workers for furnishing them with employment, or with information leading thereto, results frequently in their becoming the victims of imposition and extortion and is therefore detrimental to the welfare of the state. 'Section 2. It shall be unlawful for any employment agent, his representative, or any other person to demand or receive either directly or indirectly from any person seeking employment, or from any person on his or her behalf, any remuneration or fee whatsoever for furnishing him or her with employment or with information leading thereto. 'Section 3. For each and every violation of any of the provisions of this act the penalty shall be a fine or [of] not more than $100 and imprisonment for not more than thirty days.' In Huntworth v. Tanner, 87 Wash. 670, 152 Pac. 523, the supreme court held schoolteachers were not 'workers' within the quoted measure, and that it did not apply to one conducting an agency patronized only by such teachers and their employers. And in State v. Rossman, 93 Wash. 530, L.R.A.1917B, 1276, 161 Pac. 349, the same court declared it did not in fact prohibit employment agencies, since they might charge fees against persons wishing to hire laborers; that it was a valid exercise of state power; that a stenographer and bookkeeper is a 'worker;' and that one who charged him a fee for furnishing information leading to employment violated the law. As members of copartnerships and under municipal licenses, during the year 1914 and before, appellants were carrying on in the city of Spokane well established agencies for securing employment for patrons who paid fees therefor. November 25, 1914, in the United States district court, they filed their original bill against W. V. Tanner, attorney general of the state, and George H. Crandall, prosecuting attorney for Spokane county, asking that Initiative Measure Number 8 be declared void because in conflict with the 14th Amendment, Federal Constitution, and that the defendants be perpetually enjoined from undertaking to enforce it. On the same day they presented a motion for preliminary injunction, supported by affidavits which were subsequently met by countervailing ones. Appellees thereafter entered motions to dismiss the original bill because (1) 'said bill of complaint does not state facts sufficient to warrant this court in granting any relief to the plaintiffs; (2) that plaintiffs have a plain, speedy, and adequate remedy at law; (3) this court has no jurisdiction over the persons of these defendants or either of them, or the subject-matter of this action.' A temporary injunction was denied. The motions to dismiss were sustained and a final decree to that effect followed. Considering the doctrine affirmed in Truax v. Raich, 239 U.S. 33, 60 L. ed. 131, L.R.A.1916D, 545, 36 Sup. Ct. Rep. 7, and cases there cited, the record presents no serious question in respect of jurisdiction. The bill alleges 'that the employment business consists in securing places for persons desiring to work,' and unless permitted to collect fees from those asking assistance to such end the business conducted by appellants cannot succeed and must be abandoned. We think this conclusion is obviously true. As paid agents their duty is to find places for their principals. To act in behalf of those seeking workers is another and different service, although, of course, the same individual may be engaged in both. Appellants' occupation as agent for workers cannot exist unless the latter pay for what they receive. To say it is not prohibited because fees may be collected for something done in behalf of other principals is not good reasoning. The statute is one of prohibition, not regulation. 'You take my house when you do take the prop that doth sustain my house; you take my life when you do take the means whereby I live.' We have held employment agencies are subject to police regulation and control. 'The general nature of the business is such that, unless regulated, many persons may be exposed to misfortunes against which the legislature can properly protect them.' Brazee v. Michigan, 241 U. S. 340, 343, 60 L. ed. 1034, 1036, 36 Sup. Ct. Rep. 561. But we think it plain that there is nothing inherently immoral or dangerous to public welfare in acting as paid representative of another to find a position in which he can earn an honest living. On the contrary, such service is useful, commendable, and in great demand. In Spokane v. Macho, 51 Wash. 322, 324, 21 L.R.A.(N.S.) 263, 130 Am. St. Rep. 1100, 98 Pac. 755, the supreme court of Washington said: 'It cannot be denied that the business of the employment agent is a legitimate business; as much so as is that of the banker, broker, or merchant; and under the methods prevailing in the modern business world it may be said to be a necessary adjunct in the prosecution of business enterprises.' Concerning the same subject, Ex parte Dickey, 144 Cal. 234, 236, 66 L.R.A. 928, 103 Am. St. Rep. 82, 77 Pac. 924, 1 Ann. Cas. 428, the supreme court of California said: 'The business in which this defendant is engaged is not only innocent and innocuous, but is highly beneficial, as tending the more quickly to secure labor for the unemployed. There is nothing in the nature of the business, therefore, that in any way threatens or endangers the public health, safety, or morals.' And this conclusion is fortified by the action of many states in establishing free employment agencies charged with the duty to find occupation for workers. It is alleged: 'That plaintiffs have furnished positions for approximately ninety thousand persons during the last year, and have received applications for employment from at least two hundred thousand laborers, for whom they have been unable to furnish employment. . . . That such agencies have been established and conducted for so long a time that they are now one of the necessary means whereby persons seeking employment are able to secure the same.' A suggestion in behalf of the state, that while a pursuit of this kind 'may be beneficial to some particular individuals or in specific cases, economically it is certainly nonuseful, if not vicious, because it compels the needy and unfortunate to pay for that which they are entitled to without fee or price, that is, the right to work,' while possibly indicative of the purpose held by those who originated the legislation, in reason, gives it no support. Because abuses may, and probably do, grow up in connection with this business, is adequate reason for hedging it about by proper regulations. But this is not enough to justify destruction of one's right to follow a distinctly useful calling in an upright way. Certainly there is no profession, possibly no business, which does not offer peculiar opportunities for reprehensible practices; and as to every one of them, no doubt, some can be found quite ready earnestly to maintain that its suppression would be in the public interest. Skilfully directed agitation might also bring about apparent condemnation of any one of them by the public. Happily for all, the fundamental guaranties of the Constitution cannot be freely submerged if and whenever some ostensible justification is advanced and the police power invoked. The general principles by which the validity of the challenged measure must be determined have been expressed many times in our former opinions. It will suffice to quote from a few. In Allgeyer v. Louisiana, 165 U.S. 578, 589, 41 L. ed. 832, 835, 17 Sup. Ct. Rep. 427, we held invalid a statute of Louisiana which undertook to prohibit a citizen from contracting outside the state for insurance on his property lying therein because it violated the liberty guaranteed to him by the 14th Amendment. 'The liberty mentioned in that Amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.' 'If, looking at all the circumstances that attend, or which may ordinarily attend, the pursuit of a particular calling, the state thinks that certain admitted evils cannot be successfully reached unless that calling be actually prohibited, the courts cannot interfere, unless, looking through mere forms and at the substance of the matter, they can say that the statute enacted professedly to protect the public morals has no real or substantial relation to that object, but it a clear, unmistakable infringement of rights secured by the fundamental law.' Booth v. Illinois, 184 U. S. 425, 429, 46 L. ed. 623, 626, 22 Sup. Ct. Rep. 425. 'It is also true that the police power of the state is not unlimited, and is subject to judicial review, and when exerted in an arbitrary or oppressive manner such laws may be annulled as violative of rights protected by the Constitution. While the courts can set aside legislative enactments upon this ground, the principles upon which such interference is warranted are as well settled as is the right of judicial interference itself. The legislature, being familiar with local conditions, is, primarily, the judge of the necessity of such enactments. The mere fact that a court may differ with the legislature in its views of public policy, or that judges may hold views inconsistent with the propriety of the legislation in question, affords no ground for judicial interference, unless the act in question is unmistakably and palpably in excess of legislative power. . . . If there existed a condition of affairs concerning which the legislature of the state, exercising its conceded right to enact laws for the protection of the health, safety, or welfare of the people, might pass the law, it must be sustained; if such action was arbitrary interference with the right to contract or carry on business, and having no just relation to the protection of the public within the scope of legislative power, the act must fail.' McLean v. Arkansas, 211 U. S. 539, 547, 548, 53 L. ed. 315, 319, 320, 29 Sup. Ct. Rep. 206. 'The 14th Amendment protects the citizens in his right to engage in any lawful business, but it does not prevent legislation intended to regulate useful occupations which, because of their nature or location, may prove injurious or offensive to the public. Neither does it prevent a municipality from prohibiting any business which is inherently vicious and harmful. But, between the useful business which may be regulated and the vicious business which can be prohibited lie many nonuseful occupations which may, or may not be harmful to the public, according to local conditions, or the manner in which they are conducted.' Murphy v. California, 225 U. S. 623, 628, 56 L. ed. 1229, 1232, 41 L.R.A.(N.S.) 153, 32 Sup. Ct. Rep. 697. We are of opinion that Initiative Measure Number 8, as constructed by the supreme court of Washington, is arbitrary and oppressive, and that it unduly restricts the liberty of appellants, guaranteed by the 14th Amendment, to engage in a useful business. It may not therefore be enforced against them. The judgment of the court below is reversed and the cause remanded for further proceedings in conformity with this opinion. Reversed. Mr. Justice McKenna dissents upon the ground that, under the decisions of this court,—some of them so late as to require no citation or review,—the law in question is a valid exercise of the police power of the state, directed against a demonstrated evil. To declare the statute of a state, enacted in the exercise of the police power, invalid under the 14th Amendment, is a matter of such seriousness that I state the reasons for my dissent from the opinion of the court. The statute of the state of Washington, commonly known as the 'Abolishing Employment Offices Measure,' was proposed by Initiative Petition No. 8, filed July 3, 1914, and was adopted November 3, 1914, at the general election; 162,054 votes being cast for the measure and 144,544 against it. In terms the act merely prohibits the taking of fees from those seeking employment.1 Plaintiffs, who are proprietors of private employment agencies in the city of Spokane, assert that this statute, if enforced, would compel them to discontinue business and would thus, in violation of the 14th Amendment, deprive them of their liberty and property without due process of law. The act leaves the plaintiffs free to collect fees from employers; and it appears that private employment offices thus restricted are still carrying on business.2 But even if it should prove, as plaintiffs allege, that their business could not live without collecting fees from employees, that fact would not necessarily render the act invalid. Private employment agencies are a business properly subject to police regulation and control. Brazee v. Michigan, 241 U. S. 340, 60 L. ed. 1034, 36 Sup. Ct. Rep. 561. And this court has made it clear that a statute enacted to promote health, safety, morals, or the public welfare may be valid, although it will compel discontinuance of existing businesses in whole or in part. Statutes prohibiting the manufacture and sale of liquor present the most familiar example of such a prohibition. But where, as here, no question of interstate commerce is involved, this court has sustained also statutes or municipal ordinances which compelled discontinuance of such business as (a) of manufacturing and selling oleomargarin (Powell v. Pennsylvania, 127 U. S. 678, 32 L. ed. 253, 8 Sup. Ct. Rep. 992, 1257); (b) of selling cigarettes (Austin v. Tennessee, 179 U. S. 343, 45 L. ed. 224, 21 Sup. Ct. Rep. 132); (c) of selling futures in grain or other commodities (Booth v. Illinois, 184 U. S. 425, 46 L. ed. 623, 22 Sup. Ct. Rep. 425); (d) of selling stocks on margin (Otis v. Parker, 187 U. S. 606, 47 L. ed. 323, 23 Sup. Ct. Rep. 168); (e) of keeping billiard halls (Murphy v. California, 225 U. S. 623, 56 L. ed. 1229, 41 L.R.A.(N.S.) 153, 32 Sup. Ct. Rep. 697); (f) of selling trading stamps (Rast v. Van Deman & L. Co. 240 U. S. 342, 368, 60 L. ed. 679, 691, L.R.A.1917A, 421, 36 Sup. Ct. Rep. 370). These cases show that the scope of the police power is not limited to regulation as distinguished from prohibition. They show also that the power of the state exists equally, whether the end sought to be attained is the promotion of health, safety, or morals, or is the prevention of fraud or the prevention of general demoralization. 'If the state thinks that an admitted evil cannot be prevented except by prohibiting a calling or transaction not in itself necessarily objectionable, the courts cannot interfere, unless in looking at the substance of the matter, they can see that it 'is a cear, unmistakable infringement of rights secured by the fundamental law." Otis v. Parker, 187 U. S. 606, 609, 47 L. ed. 323, 327, 23 Sup. Ct. Rep. 168; Booth v. Illinois, 184 U. S. 425, 429, 46 L. ed. 623, 626, 22 Sup. Ct. Rep. 425. Or, as it is so frequently expressed, the action of the legislature is final, unless the measure adopted appears clearly to be arbitrary or unreasonable, or to have no real or substantial relation to the object sought to be attained. Whether a measure relating to the public welfare is arbitrary or unreasonable, whether it has no substantial relation to the end proposed, is obviously not to be determined by assumptions or by a priori reasoning. The judgment should be based upon a consideration of relevant facts, actual or possible—Ex facto jus oritur. That ancient rule must prevail in order that we may have a system of living law. It is necessary to inquire, therefore: What was the evil which the people of Washington sought to correct? Why was the particular remedy embodied in the statute adopted? And, incidentally, what has been the experience, if any, of other states or countries in this connection? But these inquiries are entered upon, not for the purpose of determining whether the remedy adopted was wise, or even for the purpose of determining what the facts actually were. The decision of such questions lies with the legislative branch of the government. Powell v. Pennsylvania, 127 U. S. 678, 685, 32 L. ed. 253, 256, 8 Sup. Ct. Rep. 992, 1257. The sole purpose of the inquiries is to enable this court to decide whether, in view of the facts, actual or possible, the action of the state of Washington was so clearly arbitrary or so unreasonable that it could not be taken 'by a free government without a violation of fundamental rights.' See McCray v. United States, 195 U. S. 27, 64, 49 L. ed. 78, 99, 24 Sup. Ct. Rep. 769, 1 Ann. Cas. 561. The evils with which the people of Washington were confronted arose partly from the abuses incident to the system of private employment agencies and partly from its inadequacy. (a) The abuses. These are summarized in a report published by the United States Bureau of Labor in October, 1912,4 thus: 'Private employment agencies, which charge a fee for their services, are found in every city of any size in the United States. The nature of their business is such as to make possible most iniquitous practices. Their patrons are frequently men and women with only a dollar or two, which they are eager to give up for the opportunity of earning more. They are often of small intelligence and easily duped. Stories of how these agencies have swindled and defrauded those who sought employment through them are heard universally. Some of the more common of the fraudulent methods said to be used by these agencies are the following: '1. Charging a fee and failing to make any effort to find work for the applicant. '2. Sending applicants where no work exists. '3. Sending applicants to distant points where no work or where unsatisfactory work exists, but whence the applicant will not return on account of the expense involved. '4. Collusion between the agent and employer, whereby the applicant is given a few days' work and then discharged to make way for new workmen, the agent and employer dividing the fee. '5. Charging exorbitant fees, or giving jobs to such applicants as contribute extra fees, presents, etc. '6. Inducing workers, particularly girls, who have been placed, to leave, pay another fee, and get a 'better job.' 'Other evils charged against employment agents are the congregating of persons for gambling or other evil practices, collusion with keepers of immoral houses, and the sending of women applicants to houses of prostitution; sometimes employment offices are maintained in saloons, with the resulting evils.' In the report to Congress of the United States Commission on Industrial Relations, created by Act of August 23, 1912 (chap. 351, 37 Stat. at L. 415, Comp. Stat. 1916, § 8913), which gave public hearings on the subject of employment offices in May, 1914, the abuses are found to be as follows:5 '23. There are many private employment agents who try to conduct their business honestly, but they are the exception rather than the rule. The business as a whole reeks with fraud, extortion, and flagrant abuses of every kind. The most common evils are as follows: 'Fees are often charged out of all proportion to the service rendered. We know of cases where $5, $9, $10, and even $16 apiece has been paid for jobs at common labor. In one city the fees paid by scrubwomen is at the rate of $24 a year for their poorly paid work. Then there is discrimination in the charges made for the same jobs. Often, too, men are sent a long distance, made to pay fees and transportation, only to find that no one at that place ordered men from the employment agent. A most pernicious practice is the collusion with foremen or superintendents by which the employment agent 'splits fees' with them. That is, the foreman agrees to hire men of a certain employment agent on condition that one fourth or one half of every fee collected from men whom he hires be given to him. This leads the foreman to discharge men constantly in order to have more men hired through the agent and more fees collected. It develops the 'three-gang' method so universally complained of by railroad and construction laborers, namely, one gang working, another coming to work from the employment agent, and a third going back to the city. 'Finally, there is the most frequent abuse,—misrepresentation of terms and condition of employment. Men are told that they will get more wages than are actually paid, or that the work will last longer than it actually will, or that there is a boarding house when there really is an insanitary camp, or that the cost of transportation will be paid, when it is to be deducted from the wages. They are not told of other deductions that will be made from wages; they are not informed about strikes that may be on at the places to which they are sent, nor about other important facts which they ought to know. These misrepresentations, it must be said, are often as much the fault of the employer as of the labor agent. Also the employer will place his call for help with several agents, and each will send enough to fill the whole order, causing many to find no jobs. Labor agents and laborers alike are guilty of the misuse of free transportation furnished by employers to prospective help. And it is true also that many applicants perpetrate frauds on the labor agents themselves; as, for example, causing them to return fees when positions actually were secured. This is the result of the general feeling that the whole system of paying fees for jobs is unjust; and if they must pay in order to get work, then any attempt to get the fee back is justifiable.' (b) The inadequacy. But the evils were not limited to what are commonly called abuses—like the fraud and extortion described above. Even the exemplary private offices charging fees to workers might prove harmful, for the reason thus stated in the report to Congress of the United States Commission on Industrial Relations, cited supra. '18. . . . Investigations show, however, that instead of relieving unemployment and reducing irregularity, these employment agencies actually serve to congest the labor market and to increase idleness and irregularity of employment. They are interested primarily in the fees they can earn, and if they can earn more by bringing workers to an already overcrowded city, they do so. Again, it is an almost universal custom among private employment agents to fill vacancies by putting in them people who are working at other places. In this way new vacancies are created and more fees can be earned. '19. They also fail to meet the problem because they are so numerous and are necessarily competitive. With few exceptions, there is no co-operation among them. This difficulty is further emphasized by the necessity of paying the registration fees required by many agencies; obviously the laborer cannot apply to very many if he has to pay a dollar at each one. '20. The fees which private employment offices must charge are barriers which prevent the proper flow of labor into the channels where it is needed and are a direct influence in keeping men idle. In the summer, when employment is plentiful, the fees are as low as 25 cents, and men are even referred to work free of charge. But this must necessarily be made up in the winter, when work is scarce. At such times, when men need work most badly, the private employment offices put up their fees and keep the unemployed from going to work until they can pay $2, $3, $5, and even $10 and more for their jobs. This necessity of paying for the privilege of going to work, and paying more the more urgently the job is needed, not only keeps people unnecessarily unemployed, but seems foreign to the spirit of American freedom and opportunity. '21. An additional injustice inevitably connected with labor agencies which charge fees is that they must place the entire cost of the service upon those least able to bear it. Employment agents say that employers will not pay the fees; hence they must charge the employees. Among the wage earners, too, however, those who are least in need and can wait for work pay the least for jobs and even get them free, while those who are most in need make up for all the rest and pay the highest fees. The weakest and poorest classes of wage earners are therefore made to pay the largest share for a service rendered to employers, to workers, and to the public as well.' 2. The remedies. During the fifteen years preceding 1914 there had been extensive experimentation in the regulation of private employment agencies. Twenty-four states had attempted direct regulation under statutes, often supplemented by municipal ordinances.6 Nineteen states had attempted indirect regulation through the competition of state offices, and seven others through competition of municipal offices.7 Other experiments in indirect regulation through competition petition were made by voluntary organizations, philanthropic, social, and industrial.8 The results of those experiments were unsatisfactory. The abuses continued in large measure; and the private offices survived to a great extent the competition of the free agencies, public and private. There gradually developed a conviction that the evils of private agencies were inherent and ineradicable, so long as they were permitted to charge fees to the workers seeking employment. And many believed that such charges were the root of the evil. On September 25, 1914, the American Association of Public Employment Offices adopted at its annual meeting the following resolutions: 'Resolved, That this association go on record as favoring the elimination as soon as possible, of all private employment agencies operating for a profit within the United States, and that it recommends to the consideration of the United States Commission on Industrial Relations and Congress and the various state legislatures legislation having this end in view.' The United States Commission on Industrial Relations declared in its report to Congress:9 '24. Attempts to remove these abuses by regulation have been made in thirty-one states, but with few exceptions they have proved futile, and at most they have served only to promote a higher standard of honesty in the business and have not removed the other abuses which are inherent in the system. Where the states and cities have spent much money for inspectors and complaint adjusters there has been considerable improvement in the methods of private employment agencies, but most of the officers in charge of this regulation testify that the abuses are in 'the nature of the business' and never can be entirely eliminated. They therefore favor the total abolition of private labor agencies. This is also the common opinion among working people, and in the several states attempts have already been made to accomplish this by law.' But the remedies proposed were not limited to the suppression of private offices charging fees to workers, and the extension of the system of state and municipal offices. The conviction became widespread that, for the solution of the larger problem of unemployment, the aid of the Federal government and the utilization and development of its extensive machinery was indispensable. During the seven years preceding 1914 a beginning had been made in this respect. The Immigration Act of February 20, 1907 (chap. 1134, 34 Stat. at L. 898, 909, Comp. Stat. 1916, §§ 4242, 960), created within the Bureau of Immigration and Naturalization a Division of Information, charged with the duty of promoting 'a beneficial distribution of aliens.' The services rendered by this division included, among others, some commonly performed by employment agencies. While it undertook to place in positions of employment only aliens, its operations were national in scope. The Act of March 4, 1913, creating the Department of Labor, resulted in a transfer of the Bureau of Immigration, including the Division of Information, to that department. 37 Stat. at L. 736, chap. 141, Comp. Stat. 1916, § 932. By this transfer the scope of the division's work was enlarged to correspond with the broad powers of the Labor Department. These were declared by Congress to be: 'to foster, promote and develop the welfare of the wage earners of the United States, to improve their working conditions, and to advance their opportunities for profitable employment.' Then its efforts 'to distribute' (that is both to supply and to find places for) labor were extended to include citizens as well as aliens; and much was done to develop the machinery necessary for such distribution. In the summer of 1914, and in part before the filing in the state of Washington of the proposal for legislation here in question, action had been taken by the Department of Labor which attracted public attention. It undertook to supply harvest hands needed in the Middle West and also to find work for the factory hands thrown out of employment by the great fire at Salem, Massachusetts, June 25, 1914.10 The division was strengthened by co-operation with other departments of the Federal government (Agriculture, Interior, Commerce, and the Postoffice, with its 60,000 local offices) and with state and municipal employment offices. As early as June 13, 1914, the United States Department of Labor had also sought the co-operation in this work of all the leading newspapers in America, including those printed in foreign languages.11 3. Conditions in the state of Washington. The peculiar needs of Washington emphasized the derects of the system of private employment offices. (a) The evils. The conditions generally prevailing are described in a report recently published by the United States Department of Labor, thus:12 'In no part of the United States perhaps is there so large a field for employment offices as in the Pacific states. As has been noted, industrial conditions there favor inconstancy of employment. Much of the business activity is based upon the casual, short-time job. This in itself means the frequent shifting of workers from place to place. And the shifting is the more difficult, as much of the work offered is in more or less remote districts of the country. . . . The necessity laid upon so many workers of constantly seeking new jobs opens a peculiarly fertile field for their exploitation by unscrupulous private employment agencies. There is much testimony to the fact and frequency of such exploitation. The most striking evidence of this is that in the state of Washington private agencies made themselves so generally distrusted that in 1915 their complete abolition was ordered by popular vote. . . . Prior to 1914 there was practically no legislation regarding private employment agencies, and there had been no attempt at state supervision of their conduct. But distrust of such agencies was constantly increasing and culminated in the year mentioned in the passage by popular initiative of an act aiming at the total suppression of all private employment agencies of the commercial type.' The reports of the Washington State Bureau of Labor give this description: 'The investigations of the Bureau show that the worst labor conditions in the state are to be found on highway and railroad construction work, and these are largely because the men are sent long distances by the employment agencies, are housed and fed poorly at the camps, and are paid on an average of $1.75 to $2.25 a day, out of which they are compelled to pay $5.50 to $7 per week for board, generally a hospital fee of some kind, always a fee to the employment agency and their transportation to the point where the work is being done. The consequence is that they usually have but little money left when the work is finished, and if, as frequently happens, they work only a week or two and are then discharged, they are in as bad a situation as they were before they went to work, and sometimes worse, if they do not have enough money to get back to the place from which they started.'13 'That the honest toiler was their victim there is no question: not alone of a stiff fee for the information given, but a systematic method was adopted in order to keep the business going. Managers of agencies and managers of jobs, their superintendents, foremen, or subforemen, were in this scheme for fleecing the workingman. Men in large numbers would be sent to contract jobs, and if on the railroads 'free fare' was part of the inducement, or perhaps the agency would charge a nominal fee if the distance was great, and this, too, would become a perquisite of the bureau, to finally go through the clearing house. In many cases men would be unsatisfactory; at least they would be told so, discharged in a few days and sent adrift as poor, may be poorer, than when they came there. New men would have to be secured, and thus the thing would go on revolving. So it went until at last it became so obnoxious that the public indignation was at length aroused, resulting in the passing of a law doing away with them.'14 The abuses and the inadequacy of the then existing system are also described by state officials in affidavits included in the record. (b) The remedies. Washington had not tried direct regulation of private employment offices, but that method was being considered as late as 1912.15 Its people had had, on the other hand, exceptional opportunities of testing public employment offices. The municipal employment office established at Seattle in 1894 under an amendment of the city charter is among the oldest public offices in the United States. Takoma established a municipal office in 1904, Spokane in 1905, and Everett in 1908.16 The continuance and increase of these municipal offices indicate that their experience in public employment agencies was at least encouraging. And the low cost of operating them was extraordinary. In Spokane the fees charged by private agencies ranged from $1 upward, and were usually about $2.17 In the Seattle free municipal agency the cost of operation, per position filed, was reduced to a trifle over 4 cents.18 The preliminary steps for establishing 'Distribution Stations' under the Federal system, including one at Seattle, had been taken before the passage of the Washington law.19 Later branch offices were established in thirteen other cities.20 4. The fundamental problem. The problem which confronted the people of Washington was far more comprehensive and fundamental than that of protecting workers applying to the private agencies. It was the chronic problem of unemployment,—perhaps the gravest and most difficult problem of modern industry,—the problem which, owing to business depression, was the most acute in America during the years 1913 to 1915.21 In the state of Washington the suffering from unemployment was accentuated by the lack of staple industries operating continuously throughout the year and by unusual fluctuations in the demand for labor, with consequent reduction of wages and increase of social unrest.22 Students of the larger problem of unemployment appear to agree that establishment of an adequate system of employment offices or labor exchanges23 is an indispensable first step toward its solution. There is reason to believe that the people of Washington not only considered the collection by the private employment offices of fees from employees a social injustice,24 but that they considered the elimination of the practice a necessary preliminary to the establishment of a constructive policy for dealing with the subject of unemployment.25 It is facts and considerations like these which may have led the people of Washington to prohibit the collection by employment agencies of fees from applicants for work. And weight should be given to the fact that the statute has been held constitutional by the supreme court of Washington and by the Federal district court (three judges sitting),—courts presumably familiar with the local conditions and needs. In so far as protection of the applicant is a specific purpose of the statute, a precedent was furnished by the Act of Congress, December 21, 1898, 30 Stat. at L. 755, 763, chap. 28, Comp. Stat. 1916, §§ 8306, 8323 (considered in Patterson v. The Eudora, 190 U. S. 169, 47 L. ed. 1002, 23 Sup. Ct. Rep. 821), which provides, among other things: 'If any person shall demand or receive, either directly or indirectly, from any seaman or other person seeking employment as seaman, or from any person on his behalf, any remuneration whatever for providing him with employment, he shall for every such offense be liable to a penalty of not more than $100.' In so far as the statute may be regarded as a step in the effort to overcome industrial maladjustment and unemployment by shifting to the employer the payment of fees, if any, the action taken may be likened to that embodied in the Washington Workmen's Compensation Law (sustained in Mountain Timber Co. v. Washington, 243 U. S. 219, 61 L. ed. 685, 37 Sup. Ct. Rep. 260), whereby the financial burden of industrial accidents is required to be borne by the employers. As was said in Holden v. Hardy, 169 U. S. 366, 387, 42 L. ed. 780, 789, 18 Sup. Ct. Rep. 383. 'In view of the fact that from the day Magna Charta was signed to the present moment, amendments to the structure of the law have been made with increasing frequency, it is impossible to suppose that they will not continue, and the law be forced to adapt itself to new conditions of society, and particularly to the new relations between employers and employees as they arise.' In my opinion, the judgment of the District Court should be affirmed. Mr. Justice Holmes and Mr. Justice Clarke concur in this dissent.

243.US.291

When a steam vessel proceeding in a fog hears apparently forward of her beam the fog signal of another vessel whose position is not ascertained, the duty to stop the engines, if the circumstances admit, is imperative, under Article 16 of the International Regulations for preventing collisions at sea, adopted by the Act of August 19, 1890, 26 Stat. 320, and effective July 1, 1897, 29 Stat. 885. A negligent breach of this statutory duty, contributing directly to cause a collision, is not excusable upon the ground that the vessel was navigated in accordance with what would have been good seamanship had not the duty been imposed. When a collision is attributable to the palpable negligence of both masters, the negligence of each continuing to operate as an efficient cause until the moment when the accident occurs, the doctrine of major and minor fault does not apply. 219 Fed. Rep. 134, affirmed.

On his own behalf and on behalf of the owners, officers, and crew of the Norwegian steamship Selja, the petitioner, Olaf Lie, her master, instituted this suit in admiralty against the American steamship Beaver, to recover for the loss of the Selja, her equipment and the personal effects of her officers and crew, which was occasioned by the collision of the two ships on the afternoon of November 22, 1910, near Point Reyes, on the California coast. For the purposes of trial this case was consolidated with an intervening libel by the owners of the cargo of the Selja, and with an independent suit by her charterers to recover for loss of freight. When approaching San Francisco, the end of her voyage from Yokohama, the Selja, a freight-carrying steamship, collided in a fog with the Beaver, a passenger and freight-carrying steamer then on a voyage from San Francisco to Portland, Oregon, and was so damaged that she sank, a total loss, in about fifteen minutes. From 1 o'clock in the morning of November 22d, the Selja had been running in a fog which, for a considerable time before the collision, was so thick that it was possible to see only about twice her length,—about 800 feet. The master of each ship makes the characteristic claim that at the moment of collision he had his engines working full speed astern, and each claims that his vessel was without headway when the two came together. It is beyond controversy, however, that the Beaver was running at a rate of speed much too high for prudent navigation in the then prevailing fog until her master heard the whistle of the Selja, about three minutes before the accident, and it is beyond controversy also that this negligent speed contributed directly to cause the collision. The two lower courts agree that the Beaver was culpably negligent, but they also find that the master of the Selja was likewise negligent in the navigation of his ship in a manner which contributed directly to bring about the accident, and therefore, while allowing recovery by the owners and underwriters of the cargo, by the charterers of the Selja, and by her other officers and crew, they decreed that, apportioning the damages suffered by the owner and master of the Selja and by the owner of the Beaver, under the usual rule of cross liabilities, there could be no recovery by the master, Lie, personally, or by the owners of the Selja, and it is from this denial of the right to recover by Lie and by the owners of the Selja, and from the order as to the payment of costs, that this appeal is prosecuted. The petitioner claimed in the courts below, and in this court still claims, that if the master of the Selja was negligent at all, which is denied, his negligence was of such a character and had so spent its effect long before the accident, that, in the most unfavorable view that can be taken of it, it was a remote, and not a proximate, cause of the collision, and that, therefore, the Beaver being palpably negligent, he has a lawful right to recover. The master of the Selja admits that he heard what ultimately proved to be the warning fog whistle of the Beaver, at 3 o'clock, and therefore the ships must be considered as within the danger zone from that time forward, and the decision of the case turns upon what was done by the two vessels during the sixteen minutes which elapsed between 3 o'clock and the moment of collision. There is all of the customary conflict between the stories told by the officers of the respective vessels, but we think that a correct and just decision of the case may be arrived at by accepting the statements of the master of the Selja, as they appear in various parts of the record. His narrative of what occurred during the fateful sixteen minutes after 3 o'clock may be condensed into the following: At 3 o'clock I was running at half speed (6 knots an hour) and very shortly after that I heard for the first time 'a whistle about right ahead'—'dead ahead'—which proved to be the whistle of the Beaver. 'It sounded faint, but distant,' and I could then see only about two lengths of my ship (about 800 feet). The sea was calm, with a long westerly swell, there were no noises on the ship to interfere with my hearing the whistle, which blew at intervals of fifty-six or fifty-seven seconds and for five seconds each time. When I first heard the whistle it sounded far away, and 'it just came into my mind that it might be one of the fog horns off the Golden Gate,' at Point Bonita, about 20 miles away. After I heard the whistle the third time I commenced to time it and continued to do so until five minutes past 3 o'clock, when I concluded that it was the whistle of an approaching steamer, and I reduced speed from half speed (6 knots) to slow speed (3 knots an hour) because 'I considered that 6 knots was not moderate enough under the circumstances.' I did not stop my engines when I first heard the whistle or when I concluded that it was that of an approaching steamer 'because the sound was located as good as it could be located in the fog, and showed absolutely no danger of collision.' (This statement is twice repeated in the testimony.) 'I was familiar with the international rule which requires a steamer to stop in a fog.' During the entire fifteen minutes before the accident I heard the whistle of the Beaver blow every fifty-six or fifty-seven seconds and for five seconds at a time, and the Selja blew one single blast between each two blasts of the Beaver's whistle; I 'answered his whistle' from 3 o'clock until the collision. My engines were reduced to slow speed at five minutes after 3 o'clock, and they were kept at this speed—3 knots an hour—until 3:10 o'clock, when they were stopped. At 3:13 my ship still had steerage way upon her, and at 3:14 she was not quite at a standstill, but was still moving a little through the water, and I intended to answer the Beaver's next whistle with two blasts of my whistle, which would have meant that my boat was stopped and had no way upon her. I did not tell my third officer to blow the two whistles, as I intended to do, 'because the Beaver loomed in sight and I saw her blow three whistles.' I mean 'I saw steam come out of his whistle and I heard it, of course, at the same time.' 'She loomed in sight and the three whistles were almost at the same time.' When I saw and heard the three whistles from the Beaver, I told my third officer to blow three whistles, and I rang 'full speed astern' on my engine at the same time. I noticed that the Beaver was coming fast by the way she cut the water. I was watching the Beaver carefully, and I thought probably she would pass wide of me, her starboard side was widening all the time and I was watching her. I first saw the Beaver approaching at about 3:15. She was then about 900 feet away, and about a minute after, the collision came. The foregoing statements of fact are as favorable to the petitioner as he can possibly deserve. They leave out of account a number of statements claimed to have been made by him: to the master of the Beaver immediately after the accident; to the agent of the company which had the Selja under charter on the day after the accident, and to the United States inspector of steam vessels on the second day after the accident, all of which are in serious conflict with, and are much less favorable to, his claim than the summary we have given. In the year 1889 representatives of over thirty of the maritime nations of the world met in convention at Washington for the purpose of discussing the international code of rules to prevent collisions at sea, and of suggesting such changes and modifications as experience had shown to be necessary. The recommendations of this convention were adopted by Act of Congress of August 19, 1890 (26 Stat. at L. 320, chap. 802), became effective by proclamation of the President (28 Stat. at L. 1250) on the 1st day of July, 1897, and have been operative ever since. Of these rules the following is applicable to the case we are considering: 'Art. 16. Every vessel shall, in a fog, mist, falling snow, or heavy rainstorms, go at a moderate speed, having careful regard to the existing circumstances and conditons. 'A steam vessel hearing, apparently forward of her beam, the fog signal of a vessel the position of which is not ascertained shall, so far as the circumstances of the case admit, stop her engines, and then navigate with caution until danger of collision is over.' The most cursory reader of this rule must see that while the first paragraph of it gives to the navigator, discretion as to what shall be 'moderate speed' in a fog, the command of the second paragraph is imperative that he shall stop his engines when the conditions described confront him. The difficulty of locating the direction or source from which sounds proceed in a fog renders it not necessary to dwell upon the purpose and obvious wisdom of this second paragraph of the rule. Mr. Justice Brown, an experienced admiralty lawyer, but repeated the expression of many cases, which finds new illustration in the mistake in this case made by the master, Lie, in determining the location and the distance of the Beaver, when he said, in The Umbria, 166 U. S. 404, 408, 41 L. ed. 1053, 1056, 17 Sup. Ct. Rep. 610: 'It is difficult to locate the exact position of a vessel in a fog, and still more difficult to determine her course and distance.' And the circuit court of appeals in this case expresses the result of testimony constantly met with in the trial of such cases when it says: 'The cases are very numerous in which an approaching whistle, which sounded far off, was really very close, and in which the sound seemed to come from one direction, while in fact, it came from another. Indeed, it is a matter of common knowledge that sounds in a dense fog are very deceptive.' [135 C. C. A. 36, 219 Fed. 134.] It is enough to say that this second paragraph is an addition to the former rule for preventing collisions at sea, which the International Conference recommended, after full discussion by the most intelligent seafaring men of many nations; that, at the time of the collision, obedience to it was commanded by act of Congress and by the law of the country under the flag of which the Selja was sailing, and that if it had been obeyed the collision would not have occurred. By his own statement, as we have epitomized it, Lie, the master of the Selja, confesses that when he first heard the whistle of the Beaver he realized that it was 'forward of the beam' of his ship, and although it is plain that he was not able to ascertain the position of the vessel from which the danger warning came, for he thought it the whistle at Point Bonita, 20 miles away, yet he not only did not stop his engines, as required, but, on the contrary, he continued to run them for five minutes following at half speed (6 knots an hour) in thick fog, until each succeeding whistle of the Beaver, sounding nearer than the one before, at length convinced him that it was the whistle of an approaching steamer. But even then, when convinced that the danger signals which he had been hearing repeated at one minute intervals for five minutes were from an approaching steamer still 'forward of his beam,' he did not obey the rule by stopping his engines, but contented himself with reducing his speed to slow, 3 knots an hour, not out of deference to the rule of law, but because, as he says, 'I considered that 6 knots was not moderate enough under the circumstances,' and this speed he continued for five minutes longer, until ten minutes past 3, when, at length, he ordered his engines stopped, with the result, he is obliged to confess, that at 3:14, two minutes before the collision, his ship still had steerage way upon her, 'was not quite at a standstill,' and a moment later the crash came. It is of no avail for this master to say that at the instant of the accident he thinks the momentum of his ship had been overcome, and that she was commencing to move backward in response to the 'full speed astern' order, which had been given during the instant that had elapsed between the appearance of the Beaver through the fog and the coming of the ships together, for the evil had been done and the collision rendered inevitable. When it is considered that the statement of the master of the Selja as to the moment when he gave the order to reduce speed from half to slow, and then from slow to stop, and then from stop to full speed astern, are all but approximations, arrived at after the disaster to his ship had occurred, when every possible influence, conscious and unconscious, was operating to induce a recollection favorable to the conclusion he most desired, it is not possible in the administration of practical justice to avoid the conclusion that the effect of the wilful disobedience of this imperative and important statutory rule of law, which should have governed his conduct, continued as an effective force, operating on the movement of his vessel to the instant of collision, driving her forward steadily, even though in the last moments slowly, to the fateful point of intersection of the courses of the two ships. Such a state of fact makes sharply applicable the conclusion of this court in The Pennsylvania, 19 Wall. 125, 22 L. ed. 148: 'But when, as in this case, a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster. In such a case the burden rests upon the ship of showing, not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.' The record before us not only fails to show that the fault of the Selja might not have been one of the causes of the accident, or that it probably was not, or that it could not have been one of the causes of it, but, on the contrary, it clearly shows, as we have seen, that the negligent failure to observe the statutory rule contributed directly to cause the collision. The case is not one for the application of refinements as to what would have been good seamanship without the rule, such as we are invited in argument to consider, nor is it a case for consideration of the doctrine of major and minor fault. Both of the masters were palpably negligent in respects which contributed directly to cause the collision; the negligence of each continued to operate as an efficient cause until the moment when the accident occurred, and we agree with the lower courts that the case is one in which the master and owner of the Selja must be left to suffer their self-inflicted loss. The judgment of the Circuit Court of Appeals is affirmed.

242.US.371

Issuance of a fee simple patent for an allotment in the White Earth Indian Reservation, Minnesota, under the clause of the Act of March 1, 1907, c. 2285, 34 Stat. 1015, 1034, which declares that such allotments when held by adult mixed-blood Indians shall be free of restrictions on alienation and patentable in fee, implies an administrative finding that the patentee was of age when the patent issued. While this finding is decisive of the allottee's age for the purpose of sustaining his right to the title freed from the restrictions which Congress had imposed by the allottingacts, c. 119, § 5, 24 Stat. 388; c. 24, § 3, 25 Stat. 642, it does not conclusively establish his majority for the purpose of determining whether a deed of the land which he) made after patent was subject, under the state law, to disaffirmance as a deed made in infancy. The restrictions being removed and the fee simple patent issued, the allottee, pursuant to the Act of May 8, 1906, c. 2348, 34 Stat. 182, becomes subject to, and entitled to the benefit of, .the laws of the State' governing the transfer of real property, fixing the age of majority and declaring the disability of minors. 132 Minnesota, 396, affirmed.

A tract of land in the White Earth Indian Reservation in the state of Minnesota is here in dispute. It was allotted and patented to a mixed-blood Chippewa Indian, and both parties claim under him. The allotment was made under legislation providing that the United States would hold the land in trust for the period of twenty-five years, and at the expiration of that period would convey the same to the allottee or his heirs by patent in fee discharged of such trust and free of all charge or encumbrance, and also that if any conveyance should be made of the land, or if any contract should be made touching the same, before the expiration of the trust period, such conveyance or contract should be absolutely null and void. 24 Stat. at L. 388, chap. 119, § 5, Comp. Stat. 1913, § 4201; 25 Stat. at L. 642, chap. 24, § 3. Afterwards, upon the allottee's application, a fee-simple patent was issued to him under a provision in the act of March 1, 1907, chap. 2285, 34 Stat. at L. 1051, 1034, declaring: 'That all restrictions as to the sale, encumbrance, or taxation for [of] allotments within the White Earth Reservation in the state of Minnesota, heretofore or hereafter held by adult mixed-blood Indians, are hereby removed, and . . . such mixed bloods upon application shall be entitled to receive a patent in fee simple for such allotments.' Following the issue of this patent, and on dates considerably separated, the allottee executed two deeds for the land, each to a distinct grantee. The plaintiff in this suit claims under the second deed and the defendant under the first. The object of the suit is to obtain an adjudication of these adverse claims. In the trial court the plaintiff prevailed and the judgment was affirmed. 132 Minn. 396, 157 N. W. 655. In both courts the decision was put upon the ground that the first deed was made while the allottee was a minor, and the second after he became an adult, and that, under the law of the state, the deed given during his minority was disaffirmed and avoided by the one given after he became an adult. The only Federal question presented or considered was whether the patent was conclusive of his having attained his majority at that time. The defendant contended that it was, but the ruling was the other way, and the plaintiff was permitted to show the allottee's age by other evidence. The defendant concedes that, if the patent was not conclusive upon that point, the judgment must stand. The validity of the patent is not assailed. On the contrary, both parties claim under it, one as much as the other. Nor is it questioned that the allottee received the full title, freed from all the restrictions upon its disposal which Congress had imposed. Thus the question for decision is whether the patent was to be taken as determining the allottee's age for any purpose other than that of fixing his right to receive the full title, freed from all the restrictions imposed by Congress. There is no mention of his age in the patent, and yet it must be taken as impliedly containing a finding that he was then an adult. This is so, because every patent for public or Indian lands carries with it an implied affirmation or finding of every fact made a prerequisite to its issue, and because the provision in the act of 1907 made the majority of the allottee a prerequisite to the issue of this patent. But such implications, although appropriately and generally indulged in support of titles held under the government's patents (Steel v. St. Louis Smelting & Ref. Co. 106 U. S. 447, 450, et seq., 27 L. ed. 226, 227, 1 Sup. Ct. Rep. 389), are not regarded as otherwise having any conclusive or controlling force. They are not judgments in the sense of the rules respecting estoppel by judgment, and we perceive no reason for giving them any greater force or influence than has been sanctioned by prior decisions. The provision in the act of 1907, under which this patent was issued, does not make for a different conclusion. In so far as it is applicable here, it does no more than to withdraw a particular class of allotments from the restrictions imposed by Congress, and to authorize the immediate issue of fee-simple patents for them. Although saying nothing on the point, it evidently intends that the administrative officers shall be satisfied in each instance before issuing the patent that the allotment belongs to the particular class; and so the patent when issued carries with it an implication that those officers found the allotment to be of that class. But the provision gives no warrant for thinking that this finding should have any greater effect or wider application than is accorded to the finding implied from the issue of other patents. We conclude, therefore, that the administrative finding which this patent imports was not to be taken as decisive of the allottee's age for any purpose other than that of fixing his right to receive the full title, freed from all the restrictions upon its disposal which Congress had imposed. With those restrictions entirely removed and the fee-simple patent issued, it would seem that the situation was one in which all questions pertaining to the disposal of the lands naturally would fall within the scope and operation of the laws of the state. And that Congress so intended is shown by the Act of May 8, 1906, chap. 2348, 34 Stat. at L. 182, Comp. Stat. 1913, § 4203, which provides that when an Indian allottee is given a patent in fee for his allotment he 'shall have the benefit of and be subject to all the laws, both civil and criminal, of the state.' Among the laws to which the allottee became subject, and to the benefit of which he became entitled, under this enactment, were those governing the transfer of real property, fixing the age of majority, and declaring the disability of minors. Judgment affirmed.

245.US.50

A policy of insurance held by a bankrupt, which has a cash surrender value at the time of the adjudication, becomes an asset, to the extent of such value, in the trustee, under § 70-a of the Bankruptcy Act, even when the policy is payable to a beneficiary other than the bankrupt, his estate or personal representatives, if the bankrupt has reserved absolute power to change the beneficiary. 237 Fed. Rep. 796, reversed.

On May 13, 1915, Elias W. Samuels filed a voluntary petition in bankruptcy and was adjudicated a bankrupt. On the same day Cohen, petitioner herein, was duly elected his trustee. Samuels at the time of the adjudication held five life insurance policies in various life insurance companies. On September 16, 1915, Cohen made motions before the referee in bankruptcy to require Samuels to deliver to him, Cohen, the policies or pay to him the cash surrender value of them as of the date of the adjudication. The motions were denied. Subsequently Cohen filed petitions to review the rulings of the referee as to three of the policies, which petitions came on for hearing before the United States District Court for the Southern District of New York February 14, 1916. The policies were respectively for the sums of $3,000, $3,000, and $1,000, and had respectively a cash surrender value of $193.85, $753, subject to a deduction of a loan of $555 and interest, and $396, The policies were payable to certain relatives of Samuels as beneficiaries and it was provided in each that Samuels reserved the absolute right to change the beneficiary without the latter's consent. The District Court affirmed the orders of the referee, following what the court conceived to be the ruling in In re Hammel & Co., 221 Fed. 56, 137 C. C. A. 80. Cohen petitioned the Circuit Court of Appeals to revise the ruling of the District Court as provided in section 24b of the Bankruptcy Act (Comp. St. 1916, § 9608) and for such other and further relief as might be proper. The Circuit Court of Appeals affirmed the ruling of the District Court, one judge dissenting. 237 Fed. 796, 151 C. C. A. 38. The facts are not in dispute. The policies had a cash surrender value at the time Samuels was adjudicated a bankrupt which the companies were willing to pay to him and in all of them he had the absolute right to change the beneficiaries. The question in the case is the simple one of the construction of section 70a (section 9654). By it the trustee of the bankrupt is vested by operation of law with title to all property of the bankrupt which is not exempt; '(3) all powers which he might have exercised for his own benefit, but not those which he might have exercised for some other person; * * * (5) property which prior to the filing of his petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him: Provided, that when any bankrupt shall have any insurance policy which has a cash surrender value payable to himself, his estate, or personal representatives, he may, within thirty days after the cash surrender value has been ascertained and stated to the trustee by the company issuing the same, pay or secure to the trustee the sum so ascertained and stated, and continue to hold, own, and carry such policy free from the claims of the creditors participating in the distribution of his estate under the bankruptcy proceedings, otherwise the policy shall pass to the trustee as assets. * * *' Regarding the section in its entirety there would seem to be no difficulty in its interpretation, but we are admonished by the decision of the Circuit Court of Appeals and its reasoning and also by the argument of counsel that there are considerations which give particular control to the proviso and distinguish between insurance policies and other property which the bankrupt can transfer or which can be levied upon and sold under judicial process against him (subdivision 5). We have given attention to those considerations and feel their strength, but they are opposed by other considerations. It might indeed be that it would better fulfill the protection of insurance by considering the proviso alone and literally, regarding the policy at the moment of adjudication, and, if it be not payable then in words to the bankrupt—no matter what rights or powers are reserved by him, no matter what its pecuniary facility and value is to him—to consider that he has no property in it. But we think such construction is untenable. The declaration of subdivision 3 is that 'powers which he might have exercised for his own benefit' 'shall in turn be vested in the trustee,' and there is vested in him as well all property that the bankrupt could transfer or which by judicial process could be subjected to his debts, and especially as to insurance policies which have a cash surrender value payable to himself, his estate or personal representative. It is true the policies in question here are not so payable, but they can be or could have been so payable at his own will and by simple declaration. Under such conditions to hold that there was nothing of property to vest in a trustee would be to make an insurance policy a shelter for valuable assets and, it might be, a refuge for fraud. And our conclusions would be the same if we regarded the proviso alone. This court has been careful to define the interest of bankrupts in the insurance policies they may possess. In Hiscock v. Mertens, 205 U. S. 202, 27 Sup. Ct. 488, 51 L. Ed. 771, we gave a bankrupt the benefit of the redemption of a policy from the claims of creditors, though a cash surrender value was not provided by it but was recognized by the insurance company. In Burlingham v. Crouse, 228 U. S. 459, 472, 33 Sup. Ct. 564, 568 (57 L. Ed. 920, 46 L. R. A. [N. S.] 148), we said that it 'was the purpose of Congress to pass to the trustee that sum which was available to the bankrupt at the time of bankruptcy as a cash asset; otherwise to leave to the insured the benefit of his life insurance.' See also Everett v. Judson, 228 U. S. 474, 33 Sup. Ct. 568, 57 L. Ed. 927, 46 L. R. A. (N. S.) 154. Judgment of the Circuit Court of Appeals affirming the order of the District Court is reversed and the case remanded to the District Court for further proceedings in accordance with this opinion.

244.US.407

The court agrees with the District Court in concluding that appellants' allegations of fraud were not sustained. Generally speaking, when fraud is alleged and denied, the party making the charge will be confined to that issue. When a constitutional question, asserted as the basis for the jurisdiction of this court on direct appeal from the District Court, is pleaded as resulting from the execution of a fraudulent scheme, the question ought not to be considered (semble), if the charge of fraud fails. By claiming the benefits of state laws the right to question their constitutionality may be waived. 216 Fed. Rep. 242, affirmed.

The appellants, as owners of 1,210 of the 229,850 shares of the capital stock of the Parrot Silver & Copper Company, a corporation organized under the laws of Montana, filed their bill in the United States district court for the district of Montana, seeking to avoid an executed sale of all the property and assets of that company, made on May 31, 1910, to the Anaconda Copper Mining Company, the consideration being a stipulated number of shares of the vendee company. The claim of the appellants is that in 1899 certain persons acquired control of a majority of the shares of the capital stock of the Parrot Company with the fraudulent purpose of so managing its affairs as to deplete and depreciate its assets 'and then to acquire them' for less than their real value, thereby depriving the minority stockholders of 'the just and fair value of their right and interest' as shareholders, or 'of an appraisal of the value of their stock on any adequate basis of value.' It is further claimed that this fraudulent scheme found consummation in the sale to the Anaconda Company, which was made under authority of §§ 4409-4412 of the Revised Codes of Montana. Sections 4409 provides that a sale may be made of all the assets of any mining corporation when at least two thirds of the whole number of shares of the capital stock outstanding shall vote in favor of making such a sale at a meeting called and notified as provided in the section. Such a sale of the 'whole property of the corporation' works a dissolution of the corporation under § 4410, and its affairs must be wound up. Section 4411 provides that any stockholder who shall not have voted for or authorized such sale may, within twenty days from the date of the stockholders' meeting authorizing it, give written notice that he does not assent thereto, and demand payment of the value of his stock, and ten days after the service of such notice he must, or the corporation may, apply to a designated court and have the value of the stock fixed and appraised. Upon such application the court shall appoint three appraisers who shall take evidence in relation to and shall find the value of the stock of such dissenting stockholder 'at the time of his dissent.' To any stockholder not satisfied with the award of the appraisers the next section, 4412, allows an appeal to the district court, where the value of the stock shall be reassessed by a jury in the same manner as in 'appeals from the assessments of commissioners in condemnation proceedings provided by law.' The judgment on such an award must be entered against both the vendor and the vendee corporation, and by the statute it is made a lien superior to the rights of the vendee upon all of the real property sold. After the sale to the Anaconda Company complained of, the appellants served a notice of dissent on the Parrot corporation and commenced a statutory preceeding for the appraisal of their stock, which has not been brought on for hearing, but is still pending. The claim upon which the appellants come into this court by direct appeal is that the statutes of Montana referred to, are unconstitutional because they provide for a sale of all the property of the corporation upon a favorable vote of less than all (not less than two thirds) of the shares of the capital stock of the corporation, and that dissenting stockholders must accept an award of the value of their stock, made as of the date of sale. Such an award in this case, it is claimed, would be based upon a valuation of the assets of the company after they had been fraudulently depleted and depreciated, and without its being possible in such a proceeding to add anything to the value of their stock on account of the damage which the persons in control of the defendants by their fraudulent conduct had done to the property of the Parrot Company, and thereby to the value of the appellants' stock prior to the sale. This, it is contended, would result in taking the property of the appellants without just compensation and in violation of the 'due process of law' and of the 'equal protection of the laws' clauses of the 14th Amendment to the Constitution of the United States. This summary of this record shows that the claims of the bill presented to the district court for decision two questions, viz: (1) Did the defendants fraudulently dissipate and depreciate the assets of the Parrot Company prior to the sale complained of, to the damage of the interest of the appellants as stockholders? (2) If the Montana statutes were given effect, would they so deprive the appellants of a part of the value of their stock as to offend against the designated provisions of the 14th Amendment to the Constitution of the United States? An examination of this record leads us to fully agree with the trial court in its conclusion that the appellants failed utterly to sustain their allegations that the property of the Parrot Company was fraudulently dissipated and depreciated through the management of the defendants prior to the sale, or that the sale made was in any respect fraudulent. Upon this conclusion the judgment of the district court might well be affirmed, for the reason that where fraud is charged in a bill or set up in an answer, and is denied, the party making the charge will be confined to that issue, and also for the reason that where the claimed constitutional question on which a direct appeal to this court is based is pleaded as resulting from the carrying into effect of a fraudulent scheme, when such charge of fraud fails, the asserted constitutional question ought not to be considered. French v. Shoemaker, 14 Wall. 314, 20 L. ed. 852; Eyre v. Potter, 15 How. 42, 14 L. ed. 592; Chicago, B. & Q. R. Co. v. Babcock, 204 U. S. 585, 593, 51 L. ed. 636, 638, 27 Sup. Ct. Rep. 326. But we prefer not to have the case go off on this seemingly technical but really sound and substantial rule. There remains the contention that the statutes of Montana which we have epitomized, if enforced, will deprive the appellants of their property without due process of law because they provide that sale may be made of all the assets of the corporation when authorized by not less than two thirds of the outstanding capital stock of the corporation, and that the plaintiffs must accept either the payment for their shares which this large majority of their associates think sufficient, or, if they prefer, the value in money of their stock, to be determined by three appraisers, or, still at the election of appellants, by a court and jury. This record does not call upon us to examine into this challenge of the validity of these statutory provisions, similar as they are to those of many other states and of a seemingly equitable character, for the reason that the appellants, by their action in instituting a proceeding for the valuation of their stock, pursuant to these statutes, which is still pending, waived their right to assail the validity of them. Great Falls Mfg. Co. v. Atty. Gen. 124 U. S. 581, 31 L. ed. 527, 8 Sup. Ct. Rep. 631; Electric Co. v. Dow, 166 U. S. 489, 41 L. ed. 1088, 17 Sup. Ct. Rep. 645; Pierce v. Somerset R. Co. 171 U. S. 641, 43 L. ed. 316, 19 Sup. Ct. Rep. 64; Leonard v. Vicksburg, S. & P. R. Co. 198 U. S. 416, 422, 49 L. ed. 1108, 1111, 25 Sup. Ct. Rep. 750. They cannot claim the benefit of statutes and afterwards assail their validity. There is no sanctity in such a claim of constitutional right as prevents its being waived as any other claim of right may be. The decision of the District Court is affirmed.

242.US.537

The agreements between British, German and American steamship companies which were assailed as contrary to the Anti-Trust Act of July 2, 1890, having necessarily been dissolved by the European War, and the questions raised by the bills having thereby become moot when the decrees of the court below were entered, the decrees are reversed and the cases remanded with directions to dismiss the bills without prejudice--as in United States v. Hamburg-American Co., 239 U. S. 466. 220 Fed. Rep. 230, reversed.

The United States sued to restrain the carrying out of agreements between British, German, and American steamship companies who were defendants, on the ground that they were in violation of the Anti-trust Act of July 2, 1890 (26 Stat. at L. 209, chap. 647, Comp. Stat. 1913, § 8820). Overruling the contention that that act did not relate to contracts concerning ocean carriage, the court entered decrees against the United States in both cases, dismissing the bills for want of equity, on the ground that the assailed agreements were not in conflict with the Anti-trust Act except as to a particular discrimination found to have been practised in one of the cases which was provided against. 220 Fed. 230. At the time this action was taken by the court below, as the result of the European War, the assailed agreements had been dissolved and the questions raised by the bills were therefore purely moot, as directly decided to be the case as to a similar situation in United States v. Hamburg Amerikanische Packetfahrt-Actien Gesellschaft, 239 U. S. 466, 60 L. ed. 387, 36 Sup. Ct. Rep. 212. Under these circumstances the request now made by the United States that the doctrine announced in the Hamburg-Amerikanische Case be applied to both of these cases, and the relief afforded in that case be awarded, is well founded and must be granted. It follows, therefore, that the decrees below must be reversed and the cases be remanded to the court below with directions to dismiss the bills without prejudice to the right of the United States in the future to assail any actual contract or combination deemed to offend against the Antitrust Act. And it is so ordered.

246.US.312

Under the common law and the federal registration statute (February 20, 1905, c. 592, 33 Stat. 724) a trademark for one variety of goods includes other varieties of the same species. An adjudication that, as against B, A is entitled, by prior appropriation, to use a trademark on " blended" whiskey, protects A, as against B, in its use on "straight" whiskey. G, claiming a trademark by prior adoption and use and by registration under the Act of February 20, 1905, upra, in connection with the manufacture in Kentucky and extensive sale of "straight" whiskies, sued R to enjoin the use of the mark on "straight" whiskey manufactured in that State. R, clahng to be acting as the agent of H, set up in bar a decree of the Circuit Court in Missouri, directed by the Circuit Court of Appeals, dismissing the bill in a former suit brought by G against the predecessors of H to enjoin them from using the same mark on "blended" whiskey, which they had been producing and selling under it, in a limited way, at St. Louis. Held, reviewing the pleadings in the former case and the findings and conclusions of the Circuit Court of Appeals as displayed in its opinion, (1) that the issues as to the common-law right were the same in both cases; (2) that the former decree established against G, in favor of the predecessors of H, a title by prior appropriation, and not merely a defensive right limited to the type of whiskey ("blended") they were selling and to the volume and territorial extent of their trade in it when the former bill was filed; (3) that this adjudication enured to R by privity and (4) barred the subsequent suit, notwithstanding the latter related to whiskey of another type--"straight" whiskey,-and notwithstanding the subsequent registration of the trademark by the plaintiff for "straight" whiskey under the federal act. 226 Fed. Rep. 531, reversed.

The decree of the District Court for the Eastern District of Missouri, directed by the decision of the United States Circuit Court of Appeals for the Eighth Circuit, is pleaded in bar, and whether it is such depends upon the issues that were made or passed upon in those courts. The bill of complaint in the case alleged that in 1835 one James Crow (he is the James Crow of this suit) invented and formulated a novel process for the production of whisky which he did not patent or seek to patent but kept for his own use until his death in 1855. During all of the time after 1835 the whisky so produced was known and styled as 'Old Crow' whisky and the designation was adopted and used as a trade-mark. After the death of Crow one William F. Mitchell, to whom Crow had communicated his secret process, continued the distillation so designated and in 1867 a partnership, styled Gaines, Berry & Co., obtained possession of the distillery wherein the whisky distilled by the indicated process continued to be produced by the same process until the partnership was succeeded by W. A. Gaines & Co., and the latter company succeeded also to all of the partnership assets of the other and continued to produce the whisky until the incorporation of the complainant, when all these assets were acquired by it. When the name 'Old Crow' was applied by Crow it was a valid trade-mark and since its adoption it has always been applied to the whisky produced by the indicated secret process, and since that time has indicated to the public whisky distilled on Glenn's creek, in Woodford county, Kentucky, and nowhere else. Complainant caused the same to be registered in the Patent Office under the provisions of the act of Congress so providing. The value of the trade-mark is $500,000 and an integral part of the good will of complainant's business and the whisky is of greater value than any other of equal age. Since January, 1903, the defendants, in violation of complainant's rights and good will, have made or caused to be made and sold in the city of St. Louis a certain spirituous or alcoholic fluid not made under complainant's process and have labeled it with the words 'Old Crow' without license from the complainant and against its consent. Such unlawful u e will greatly lessen the value of complainant's business and good will, and complainant is without adequate remedy at law. There was the usual prayer for an accounting and an injunction. There was a supplemental bill to the same effect, but charging that A. M. Hellman & Co. had become the successors of the original defendants and had continued the acts alleged in the original bill. To the bill the defendants answered, with denials, and alleged the use of the word 'Crow', 'Old Crow' and 'J. W. Crow' in connection with their own business upon packages of whisky and in their and their predecessor's business from 1863 and prior thereto; that the whisky sold by complainant was an unrefined, harmful and deleterious article and that the whisky sold by them was a brand largely free from impurities. The defendants also filed a cross-bill which, however, was not insisted upon. These, then, were the issues, and upon them and the evidence adduced to sustain them the Circuit Court entered a decree establishing complainant's right to the word 'Old Crow' as a trade-mark, enjoined the use thereof by defendants and found them guilty of unfair competition in business and ordered an accounting. The Circuit Court of Appeals reversed the decree. The latter court made a careful review of the evidence, denominating it a mass of the relevant and irrelevant, and felt that it was not necessary to consider the comparative excellence of the whiskies, and remarked that the evidence did 'not show that Glenn's creek in any way entered into the composition of the whisky' and that 'there was no secret about the process employed by Crow nor did it differ materially from that employed by every other distiller of the same period.' To the objection that the 'designative words' were rarely used by the Hellmans and that their product was of inferior quality, the court replied that the right to use could not be measured by the extent to which the Hellmans employed it, 'whether more or less frequently,' nor 'by the overshadowing comparative amount of the complainant's [Gaines & Co.'s] sales under the designation 'Old Crow' whisky, nor by asserted superiority of its product.' '(1) That inasmuch as the defendants' predecessors in business prior to the use or the adoption of the designative word 'Crow' or the words 'Old Crow' as a trade-mark, employed those words in descriptive terms in connection with their business as dealers in whisky in St. Louis, Mo., and said predecessors and the defendants so continued to use the same, to a limited extent, up to the time of the institution of this suit, in good faith, they are not guilty of infringing the complainant's claimed trade-mark; and (2) that the defendants are not guilty of having engaged in unfair competition with the complainant in the prosecution of their business.' It will be observed that the issues in that case were the same as those in the present case as to the right to the use of the word 'Crow' with any of its qualifications. But in this case there is another ground of recovery alleged; that is, the application for and the receipt of the certificate of registration for the word as a trade-mark for straight rye and straight bourbon whisky. The District Court, however, adjudged that the decree of the Circuit Court in Missouri and its affirmance by the Circuit Court of Appeals constituted a bar to this suit. To the judgment of the Circuit Court of Appeals of the Sixth Circuit, reversing the action of the District Court, this certiorari is directed. The Circuit Court of Appeals, however, did not yield to all of the views of the Gaines Company. It refused to decide, as urged to do, that the defendants in this suit were not in privity with the defendants in the other and it rejected the contention that the use of the trade-mark established in the Hellman Company for a blended whisky was not an adjudication of the right to use it upon a straight whisky. In the rulings on both contentions we concur. Th first needs no comment; we adopt that of the court on the second. The court said that: 'Whatever the extended classifications and subclassifications of the Patent Office practice may contemplate, neither the common law nor the registration statute can intend such confusion as must result from recognizing the same trade-mark as belonging to different people for different kinds of the same article. Established trade-marks directly indicate origin; but if they have any value, it is because they indirectly indicate kind and quality; and to say that the seller of a blended whisky might properly put upon it a mark which was known to stand for a straight whisky, or vice versa, would be to say that he might deceive the public not only as to the origin, but also as to the nature and quality, of the article.' The philosophy of this might be questioned. But it seems to have become established, and, however it may be disputed in reason, there is an opposing consideration. As said by Circuit Judge Sanborn in Layton Pure Food Co. v. Church & Dwight Co. (C. C. A.) 182 Fed. 35, 39, 104 C. C. A. 475, 479 (32 L. R. A. [N. S.] 274): 'Uniformity and certainty in rules of property are often more important and desirable than technical correctness.' And this reasoning prevailed with the Circuit Court of Appeals which, after citing cases, said that it was forced to think 'that whatever was adjudicated regarding complainant's title to the trade-mark applies to its use of both kinds of whisky.' And, of course, conversely we may say that whatever was decided against its title to its trademark applies to its use on both kinds of whisky. In other words, if defendants were adjudged to have title to the words 'Crow' or 'Old Crow' on blended whisky, they have a right to use it on straight whisky without infringing any right of complainant. We came back, therefore, to the question as to what was adjudged in the prior suit. To this question the Court of Appeals of the Sixth Circuit gave great care and in an opinion of strength decided the negative of it. The court, in concession to the argument, assigned a prior use to the Hellmans, but expressed the view that the existence of such 'general or prima facie exclusive right is not inconsistent with an inability to enforce it against some persons and under some circumstances.' And it was added: 'Instances may arise where the affirmative conduct or the laches of the first appropriator, and with reference to what he was at first entitled to call an infringement, has been such that on the principles of estoppel or the rule of laches a court of equity cannot tolerate that he should enforce against the later user the right which might have been originally perfect. * * * Under these considerations and upon reference to the pleadings and the proofs in the Hellman Case, we conclude that the latter case is of the class where the refusal to give an injunction to the first appropriator of the mark may be justified upon the ground of his laches or estoppel; and so this ground of support must be considered in determining what is the true basis of that decree.' The court hence concluded that it, the decree, did not adjudge title to the Hellmans but adjudged them a 'defensive right and nothing more,' and, explaining the right, the court said that it 'does not extend to any whisky not mixed or blended so as to be of the same general type as that to which defendants [Hellmans] had been making or to trade or territory in which they were not selling when the bill was filed.' We are not able to assent. The court admitted that the language in the body of the opinion of the Circuit Court of Appeals for the Eighth Circuit is consistent with the interpretation petitioners put upon it, that is, 'that the trade-mark, in its general, prima facie, affirmative aspect, belonged to the Hellman's prior appropriation'; but the court added that the last paragraph of the opinion indicated 'that the two judges (only two sitting) did not unite in pu ting the decision on that ground.' We think this was an oversight. The opinion was that of the court, though delivered by one judge, and the conclusion was the conclusion of the court, and necessarily had to be, else there would have been no decision or decree. And it was thoroughgoing. It is manifest from the excerpts we have made from the opinion that the judgment of the court was not limited as to time or territory; nor did the pleadings so limit it. The complainant in that case (respondent here) alleged that it was the sole and exclusive owner of the trade-mark and had used it from 1835 to the present time, being virtually the successor of the first producer of the product. Defendants (petitioners) contested the claim and asserted a right in themselves based on prior adoption and continuous use, and that right was adjudged to them. Decree of the Circuit Court of Appeals reversed and that of the District Court affirmed.

246.US.330

If the defendant's conduct, viewed as a whole, warrants a finding 6f negligence, the trial court may properly refuse to charge concerning each constituent item mentioned by the declaration, and leave the general question to the jury. The fact that a brakeman, who was killed by a rear-end collision while in the caboose df a standing train, would have escaped if he had been at his post to give warning, as his duty required, does not make his neglect the only proximate cause of his death, if the collision was due also to negligent operation of the train coming from behind. The case is within the terms of Employers' Liability Act, § 1. In an action under the Employers' Liability Act, where the evidence is such as to justify the jury in treating the employee's contributory negligence as slight, or inconsequential in its effects, the jury may properly find that nothing substantial should be deducted on account of it from the damages; and the fact that the verdict is excessive will not warrant an assumption that, in making such finding, the jury disobeyed the court's instructions on apportionment. Where the state trial and supreme courts cut down an excessive verdict upon the assumption that the excess was due to the jury's failure to follow instructions on diminution of damages for contributory negligence, held, the assumption not being justified by the-record, that tlieii action did not invade the province of the jury under the Federal Employers' Liability Act, but was merely in exercise of their power to require a remittitur. 99 Nebraska, 349, affirmed.

This is an action under the Federal Employers' Liability Act of April 22, 1908, c. 149, 35 Stat. 65, for causing the death of Cradit, the plaintiff's (the defendant in error's) intestate. The case was brought to this Court before the Act of September 6, 1916, c. 448, 39 Stat. 727, and with the exception of one or two matters that need a word, presents only the ordinary questions of negligence that it is not our practice to discuss at length. The deceased was a brakeman on an eastbound freight train known an Extra 504 East. At Dix, in Nebraska, it was overtaken by another eastbound train known as Extra 501 East. There is a single track from Dix to Mile Post 426, 17 miles distant, and train 504 went ahead to this latter point. Train 501 followed for about half the distance to Potter and was held there until 504 had reached Mile Post 426, seven miles further on, when 501 was started on again, leaving its conductor there. But an Extra 510 West had broken down at Mile Post 426 and the train dispatcher at Sidney, about twelve miles still further east, ordered train 504 to take the disabled engine of 510 back to Sidney. The engineer asked the dispatcher to allow 504 to go on and to let 501, when it came up, take back the engine of 510, but it was refused. No. 501 came up, ran into 504 and killed Cradit and some others. The plaintiff says that the accident was due to at least contributory negligence of the railroad—the defendant that it was not negligent, that Cradit would not have been killed if he had done his duty and had gone back to warn the following train by lights, torpedoes, &c., instead of remaining in the caboose, as he did, and that this was the proximate cause of his death. On the question of its negligence the defendant undertook to split up the charge into items mentioned in the declaration as constituent elements and to ask a ruling as to each. But the whole may be greater than the sum of its parts, and the Court was justified in leaving the general question to the jury if it thought that the defendant should not be allowed to take the bundle apart and break the sticks separately, and if the defendant's conduct viewed as a whole warranted a finding of neglect. Upon that point there can be no question. We are not left to the mere happening of the accident. There were block signals working on the road that gave automatic warning of danger to 501, and which it was negligent to pass, seen or unseen, as the engine crew knew where they were and that another train was not far ahead. There was a snow storm raging which the jury might have found to have been of unprecedented violence, and it was open to them to find in view of circumstances unnecessary to detail that the dispatcher ought not to have sent out Extra 510 West as he did and that he was grossly wrong in not allowing 504 to come in and in not leaving it to 501 to bring back the disabled engine. It might have been found improper to leave the conductor of 501 at Potter. It is superfluous to say more upon this point. But it is said that in any view of the defendant's conduct the only proximate cause of Cradit's death was his own neglect of duty. But if the railroad company was negligent it was negligent at the very moment of its final act. It ran one train into another when if it had done its duty neither train would have been at that place. Its conduct was as near to the result as that of Cradit. We do not mean that the negligence of Cradit was not contributory. We must look at the situation as a practical unit rather than inquire into a purely logical priority. But even if Cradit's negligence should be deemed the logical last, it would be emptying the statute of its meaning to say that his death did not 'result in part from the negligence of any of the employes' of the road. Act of April 22, 1908, c. 149, § 1, 35 Stat. 65. In Great Northern Ry. Co. v. Wiles, 240 U. S. 444, 36 Sup. Ct. 406, 60 L. Ed. 732, it appeared that the only negligence connected with the death was that of the brakeman who was killed. The Court after instructing the jury that Cradit assumed the ordinary risks of his employment, but not extraordinary ones, in a form that is not open to criticism here, instructed them further that he was guilty of contributory negligence, and that, under the statute, if the jury found it necessary to consider that defence, his negligence was to go by way of diminution of damages in proportions explained. The jury in answer to a question found that nothing should be deducted for the negligence of the deceased, and found a verdict for $25,000, which was cut down to $15,000 by the trial Court, and to $13,500 by the Supreme Court. There were intimations that the jury disregarded the instructions of the Court, and on the footing the defendant claims the right to a new trial in order that the jury may determine the proper amount to be deducted, since that was a matter that the Court had no right to decide. But however the belief that the jury had disregarded the instructions may have influenced the mind of the Court, we perceive no legal warrant for the assumption. The account of the weather and other circumstances on the plaintiff's side made it possible for the jury to believe that Cradit's duty was so nearly impossible of performance that no substantial allowance should be made on that account. It does not appear that his superior, the conductor, who was in the caboose with him, required him to perform the task. And since the finding was possible on the evidence it cannot be attributed to disregard of duty. The Court had the right to require a remittitur if it thought, as naturally it did, that the verdict was too high. Beyond the question of attributing misconduct to the jury we are not concerned to inquire whether its reasons were right or wrong. Judgment affirmed.

246.US.69

Land, part of an odd-numbered section within the primary limits, but covered by a valid preEmption filing at the date of the definite location of the right of way, was excepted from the grant made to the Denver Pacific Railway & Telegraph Company by the Acts of July 1, 1862, c. 120, 12 Stat. 489; and March 3, 1869, c. 127, 15 Stat. 324. Kansas Pacific By. Co. v. Dunmeyer, 113 U. S. 629. Upon the facts as found, held, that one who under a deed of the Denver Pacific Railway & Telegraph Company and through mesne conveyances came into, and retained, possession of a parcel of land, which, because of a pregmption filing, was excepted from the grant made to that company (supra), was in a position to acquire full title by purchase under the Adjustment Act of March 3,1887, c. 376, 24 Stat. 556, § 5; and the regulations of the Land Department relative thereto. One who purchases undera receiver's receipt, issued upon a soldiers' additional homestead entry, land, which is in the actual possession of another claiming from another source under recorded deeds, is constructively notified by such possession and records of that other's claim and of that other's rights as so revealed; and also-through the receiver's receipt-of the origin of his own title and therein of the fact that it was procured by means of affidavits falsely stating that the land was unoccupied, unimproved and unappropriated. The defense of bona fide purchase is affirmative; the burden of establishing it rests upon the party who makes it, in a suit by the United States to cancel a patent for fraud. 228 Fed. Rep. 97, affirmed.

This is an appeal from a decree of the United States Circuit Court of Appeals for the Eighth Circuit, reversing a decree of the District Court of Colorado, which dismissed a bill of complaint filed by the United States against Emma T. Krueger for the cancellation of a certain patent upon public lands in Colorado. The government alleged in its bill that the land eighty ac res, patented to William E. Moses June 6, 1910, upon a soldiers' additional homestead entry (U. S. Rev. Stats. §§ 2306, 2307 [Comp. St. 1916, §§ 4594, 4602]; Act Aug. 18, 1894, c. 301, § 1, 28 Stat. 397 [Comp. St. 1916, § 4601]), had been secured by means of false affidavits, one by the entryman, Moses, who had made oath that the land was unoccupied, unimproved, and unappropriated by any person other than himself, and the other by John. A. McIntyre, that the land was not in any manner occupied adversely to the selector; whereas in truth and in fact the land had been for several years previously in the open and notorious possession of one P. C. Benson under title deraigned from the Denver Pacific Railway & Telegraph Company under a land grant of Congress made July 1, 1862. It was also charged that the fraud was perpetrated by agreement between Moses, the entryman, and one C. M. Krueger, the husband of the defendant, Emma T. Krueger. It is charged in the bill that Mrs. Krueger took the conveyance through Moses and her husband with notice of the fraud and without consideration. Upon issue joined and the allegation of the answer that the defendant was a purchaser in good faith without notice of any fraud, the District Court found that the patent had been obtained by fraud, but that Mrs. Krueger was a bona fide purchaser without notice, and as such entitled to hold the land. The Court of Appeals took the same view of the evidence as to the fraudulent manner in which the land was acquired, and reached the conclusion that the patent should be set aside for fraud committed against the United States unless the defendant had shown that she was an innocent purchaser without notice. With some hesitation the Circuit Court of Appeals reached the conclusion that Mrs. Krueger at the time she purchased the land must be held to have had constructive notice of facts which, if investigated, would have led her to the knowledge of the fraud, and that she was not entitled as a bona fide purchaser to hold the land as against the government. 228 Fed. 97, 142 C. C. A. 503. It was stipulated by the parties for the purposes of the trial as follows: 'By Act of Congress of July 1, 1862 (12 Stat. 489), Congress granted to the Leavenworth, Pawnee & Western Railroad Company, a right of way over certain public lands, and also certain public lands to aid in the construction of said railroad. That under and by virtue of a certain Act of Congress of March 3, 1869, the Denver Pacific Railway & Telegraph Company became the owner of and entitled to all the rights and benefits so granted and conferred by said Act of Congress of July 1, 1862, and said company selected and definitely located its said right of way, on August 20, 1869, and so selecte and definitely located and fixed its said right of way as to bring the lands involved in this suit within the primary limits of said grant. On April 13, 1866, Robert W. Woodward filed a certain valid pre-emption declaratory statement, numbered 2094, as provided for in the Act of Congress dated September 4, 1841 (5 Stat. 455), for the lands hereinabove described (unoffered lands), upon which final proof and payment was never made, that said declaratory statement was a valid and subsisting claim on August 20, 1869, and all rights under and by virtue of said preemption filing of said Woodward expired by operation of law on July 14, 1872, up to which date said filing was a valid and subsisting filing.' The land was part of one of the oddnumbered sections named in the land grant and was opposite the constructed part of the road. April 5, 1871, the Denver Pacific Railway and Telegraph Company sold and conveyed the land to one James Langston. Thence by mesne conveyances the land passed to Perry C. Benson, April 6, 1904. The pendency of Woodward's filing prevented the title from vesting in the railroad company, for it caused the land to be excepted from the grant. Kansas Pacific Ry. Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. 566, 28 L. Ed. 1122. A copy of the abstract of title showing the chain of title from the Denver Pacific Railway & Telegraph Company to Perry C. Benson was stipulated into the record; the abstract also showing the chain of title to and including the purchase by Mrs. Krueger of one half interest in the land from C. M. Krueger. Benson paid $1,375 for the land, and both courts found that he was and continued to be in possession of the land with the title of record as stated, and that Mrs. Krueger would be held to have knowledge of his rights, certainly as between herself and Benson. We have no doubt from the facts found that Benson had such possession and occupation of the premises as gave at least constructive notice of the nature and extent of his title. Under the Act of March 3, 1887, 24 Stat. 556, c. 376, § 5 (Comp. St. 1916, § 4899) and the regulations of the Land Department he would have been entitled upon hearing in the department to purchase the lands and acquire full title thereto upon complying with the statute. Section 5 of the act, and the regulations of the Land Department are given in the margin.1 The turning question in the case is: Was Mrs. Krueger a bona fide purchaser in such sense that she can hold the land notwithstanding the fraudulent manner in which it was acquired by the entryman Moses for the benefit of Krueger? That Krueger had actual knowledge of Benson's claim to the premises admits of no doubt. As early as August 3, 1907, Krueger wrote to Benson: 'Upon a search of the records, I find that you are the present owner of the W/2NE/4, Sec. 17, Tp. 5 N, R 69 West of the 6th P. M. (the tract in controversy), and that the title thereto is imperfect. If you are sufficiently interested, I would be pleased to correspond with you relative to the matter and assist you in curing the defect. 'My charges will be reasonable.' Krueger had been chief clerk of the United States Land Office at Denver until February 12, 1907, and thereafter practiced as an attorney in land and mining matters at Denver. Moses procured the soldier's additional homestead right upon which the entry was made, and made the entry at the request of Krueger who had bought the soldier's additional right from Moses for $780. Moses deeded the land to Krueger, and never claimed any interest in it. The Land Department's regulations required an affidavit that the land located or selected was not in any manner occupied adversely to the locator or selector. Moses obtained a receiver's receipt upon April 8, 1910, and conveyed by deed to Krueger April 15, 1910. On April 22, 1910, Krueger conveyed to Mrs. Krueger and Mrs. McIntyre, the wife of one who had made a corroborating affidavit also containing the statement that t e land was not in any manner occupied adversely to the selector. The patent was issued to Moses June 6, 1910, and on April 22, 1913, Mrs. McIntyre conveyed her one-half interest in the premises to Mrs. Krueger. Mrs. Krueger testified that she paid her husband $400 in cash for the undivided one-half interest, and that she paid Mrs. McIntyre $1,500 by check for her one-half interest. She testifies that when she bought from her husband after final receipt, and before the patent issued, she had not seen the land and knew nothing about it, and did not in fact see it until March 27, 1913; that she knew nothing about the statements made in the affidavit signed by Moses or the affidavit of McIntyre; that before she purchased the interest of Mrs. McIntyre she had been upon the land and found there a Mrs. Benson, who said that her father-in law was P. C. Benson, and that she and her husband were farming the land. But we need not dwell upon any inferences which may arise from the relationship between Mrs. Krueger and her husband and her actual knowledge of Benson's possession, for we think the Circuit Court of Appeals was right in reaching the conclusion that Mrs. Krueger had at least constructive notice of the manner in which the land had been obtained from the government. If the affidavit of Moses had truthfully stated the possession of Benson, Benson would have had an opportunity to claim his rights under the Act of March 3, 1887, and the regulations of the Land Department. From the receiver's receipt, which was the evidence of title of record when Mrs. Krueger obtained the deed from her husband, she was bound to know that the land had been obtained upon an affidavit of Moses asserting that the land was not occupied adversely. Under the decisions of this court she was chargeable with notice from Benson's possession, and his record title from the railroad company, that he had a preferential right of purchase under the Act of March 3, 1887. Gertgens v. O'Connor, 191 U. S. 237, 246, 24 Sup. Ct. 94, 48 L. Ed. 163; Ramsey v. Tacoma Land Co., 196 U. S. 360, 364, 25 Sup. Ct. 286, 49 L. Ed. 513. Having such notice of the origin of the title under which she had purchased, she was chargeable with notice of the facts shown by the records, and could not shut her eyes to these sources of information and still be an innocent purchaser without notice. This doctrine, often asserted in this court, was summarized in Ochoa v. Hernandez, 230 U. S. 139, 164, 33 Sup. Ct. 1033, 1042 (57 L. Ed. 1427) in which it was said: 'It is a familiar doctrine, universally recognized where laws are in force for the registry or recording of instruments of conveyance, that every purchaser takes his title subject to any defects and infirmities that may be ascertained by reference to his chain of title as spread forth upon the public records. Brush v. Ware, 15 Pet. 93, 111 [10 L. Ed. 672]; Simmons Creek Coal Co. v. Doran, 142 U. S. 417, 437 [12 Sup. Ct. 239, 35 L. Ed. 1063]; Northwestern Bank v. Freeman, 171 U. S. 620, 629 [19 Sup. Ct. 36, 43 L. Ed. 307]; Mitchell v. D'Olier, 68 N. J. Law (39 Vr.) 375, 384, 53 Atl. 467, 59 L. R. A. 949.' If Mrs. Krueger had used these sources of information she would have ascertained that the Moses affidavit wherein it was stated that the lands were not in any manner occupied adversely was untrue, constructively she is held to have knowledge of these facts. Washington Securities Co. v. United States, 234 U. S. 76, 79, 34 Sup. Ct. 725, 58 L. Ed. 1220. And see Dellemand v. Mannon, 4 Colo. App. 262, 264, 35 Pac. 679. The defense of bona fide purchaser is an affirmative one, and the burden was upon Mrs. Krueger to establish it in order to defeat the right of the government to have a cancellation of the patent, fraudulently obtained. Wright-Blodgett Co. v. United States, 236 U. S. 397, 403, 404, 35 Sup. Ct. 339, 59 L. Ed. 637; Great Northern Railway Co. v. Hower, 236 U. S. 702, 35 Sup. Ct. 465, 59 L. Ed. 798. We agree with the Circuit Court of Appeals that Mrs. Krueger did not sust in the burden of showing that she was a bona fide purchaser for value, and under the circumstances shown she had constructive notice of the manner in which the land had been procured from the United States. The Circuit Court of Appeals did not err in holding that the government was entitled to a cancellation of the patent. Decree affirmed. Mr. Justice McREYNOLDS took no part in the consideration or decision of this case.

242.US.455

Omission of the statutes of New York concerning proceedings de lunatico inquirendo (Code of Civil Procedure, 1898, §§ 2320, et seq.), to provide expressly that notice of and opportunity to be heard at the inquisition shall be afforded to the alleged incompetent, held, not violative of the due process clause of the Fourteenth Amendment, it appearing by the decisions of the highest court of the State that the requisite notice and opportunity are otherwise impliedly afforded under the state law. In proceedings under the New York statutes, supra, which resulted in the appointment of a committee of plaintiff's person and estate, the plaintiff, who was committed at a private hospital at the time, was served with notice of the application to appoint a commission to inquire into his mental capacity, of the inquisition, and of the motion to confirm its finding and appoint the committee. He was physically able to atten4 but did not appear, ask anyone to represent him or seek an adjournment. At the inquisition, the commission and jury, after hearing witnesses, concluded-that his attendance was unnecessary, and did not require it, there being evidence that if enforced it would be detrimental to his mind. Held, that due process was satisfied, and that the order appointing the committee was not open to collateral attack. Subsequently the court accepted the resignation of the committee and appointed another in his stead, without giving notice or affording opportunity to be heard to the plaintiff or the other persons interested in the original proceedings. Held, not violative of due process. Orders of a state couit declaring a person found within the State incapable of managing himself and his affairs and appointing a coinmittee of his person and his property within the State are not assailable collaterally by proof that he was and remained a citizen and resident of another State, or that he was served in the proceedings through being corruptly lured into the first State and there illegally committed to a private hospital, or that the adjudication of insanity was made on perjured evidence while he was actually sane, or that his sanity and competency have been established by a later adjudication of a court of his domicile and have since continued. 215 Fed. Rep. 867, affirmed.

This is an action in which the plaintiff seeks damages for withholding his securities and moneys. The defendant sets up as justification that he received and held the property by virtue of two orders of the supreme court of New York, appointing him committee of the person and estate of the plaintiff as one 'incompetent to manage himself and his affairs.' The validity and alleged effect of these orders were denied by plaintiff. The action was brought in 1904 in the circuit court of the United States for the southern district of New York; was transferred to the district court January, 1912, by virtue of Judicial Code, § 290 [36 Stat. at L. 1167, chap. 231, Comp. Stat. 1913, § 1267], and was tried before a jury in that year. A verdict was directed for the defendant at the close of the plaintiff's case; and the judgment entered thereon was affirmed by the circuit court of appels. The case comes here upon writ of error. The complaint alleges that the plaintiff is a citizen and resident of Virginia and the defendant a citizen and resident of New York; but Federal jurisdiction was not rested solely on diversity of citizenship. The complaint alleged also that the orders of the supreme court of New York upon which defendant relies are void as having been entered without due process of law, in violation of the Federal Constitution. The contention was insisted upon in both the lower courts. This court has, therefore, jurisdiction to review the whole case. Howard v. United States, 184 U. S. 676, 681, 46 L. ed. 754, 757, 22 Sup. Ct. Rep. 543. The orders under which defendant justifies were that of June 23, 1899, adjudging plaintiff incompetent, appointing a committee of his person and estate, and naming one Butler as such; and that of November 19, 1901, appointing defendant as his successor. These orders were made under statutes of New York, the material portions of which are set forth in the margin.1 The proceedings were held in New York city, where much of plaintiff's property was located. For over two years prior to the entry of the earlier order plaintiff had been an inmate of Bloomingdele, a private hospital near that city. At each stage in the proceeding leading up to the order of June 23, he was personally served there with notice and was given an opportunity to be heard. Thus he had notice of the motion, on May 19, to appoint the commission de lunatico inquirendo; of the inquisition on June 12; and of the motion to confirm the inquisition and for appointment of a committee on June 23. Such notice and opportunity to be heard at the inquisition was required by the law of New York, though not expressly recited in the statute; Re Blewitt, 131 N. Y. 541, 30 N. E. 587; Gridley v. College of St. Francis Xavier, 137 N. Y. 327, 33 N. E. 321; Re Fox, 138 App. Div. 43, 122 N. Y. Supp. 889. Plaintiff was physically able to be rpesent at this hearing. But he did not appear, did not send anyone to represent him, nor ask for all adjournment. At the inquisition the commission and the jury, after hearing witnesses, concluded that his attendance was unnecessary, and did not require him to attend. There was evidence that his enforced attendance would be detrimental to his mental health. As the plaintiff had notice and opportunity to be hered at each stage of these proceedings, the essential elements of dus process of law were fully met, and the court had jurisdiction to enter that order. It is not open to collateral attack, although plaintiff was then under commitment at Bloomingdale. See Simon v. Craft, 182 U. S. 427, 45 L. ed. 1165, 21 Sup. Ct. Rep. 836. The order of November 19, 1901, accepting Butler's resignation as committee and appointing defendant in his place, was made by the court without notice either to the plaintiff or to the other parties to the original proceedings. But this was a mere substitution of one offcer of the court for another. No substantial right of the plaintiff was affected. Due process does not require notice and opportunity to be heard in such a proceeding; and the irregularity, if any, was not such as to prevent the court from exercising jurisdiction to determine the matter. The validity of the orders was assailed and their effect contested also on other grounds. It was contended that plaintiff had been corruptly lured from his home in Virginia to New York in March, 1897, and then illegally committed to Bloomingdale, and that he could not otherwise have been served in New York at all in the 1899 proceedings; that in 1899 plaintiff was a resident of Virginia; that the adjudication of incompetency in 1899 was made on perjured evidence; and that the plaintiff was then of sound mind and competent to manage his affairs. It was also contended that about November 6, 1901, the plaintiff, being a citizen and resident of Albemarle county, Virginia, was adjudged by its county court to be of sound mind and capable of managing his person and estate; that he was such at the time of the commencement of this action and has been since. Much evidence was offered to support these contentions; but the facts, if established, could not overcome the defense presented by the orders of the supreme court of New York. That court had jurisdiction because the plaintiff and his property were in New York; and the essentials of due process of law were met. The orders, consequently, are not void; and they are not subject to this collateral attack. If it be true that the orders ought to be set aside, either because they were, as alleged, entered corruptly, irregularly, or inadvertently (see United States v. Throckmorton, 98 U. S. 61, 25 L. ed. 93; Hilton v. Guyot, 159 U. S. 113, 207, 40 L. ed. 95, 123, 16 Sup. Ct. Rep. 139), or because, owing to a change in plaintiff's condition, a committee is no longer required, the remedy must be sought by a direct proceeding to that end (Re Curtiss, 137 App. Div. 584, 122 N. Y. Supp. 468, 199 N. Y. 36, 92 N. E. 396). No evidence was introduced to prove that even an attempt was made to vacate or modify the orders. In this action of trover, which seeks merely damages for alleged wrongful withholding of plaintiff's property, the existing orders constitute a complete defrnse. The evidence offered was properly excluded, and there was no error in directing a verdict for the defendant. Judgment affirmed.

246.US.525

In an action under the Employers' Liability Act on behalf of the widow of a deceased employee, an instruction that the measure of damages should be such as would fairly and reasonably compensate her for the loss of pecuniary benefits she might reasonably have received but for her husband's death, held correct, as a general instruction, leaving to the defendant the right to have it supplemented by another indicating that, in estimating the amount of such compensation, future benefits must be considered at their present value. Under the Employers' Liability Act, defendant is not entitled to have the jury instructed, as matter of law, that the value of money to the beneficiary should be measured by a specific (the legal) rate of interest, or that the duration of future benefits could not have exceeded the life expectancy of the deceased employee, as given by an actuarial table. Whether the state court has obeyed a local rule of practice requiring the substitution of correct instructions for defective ones requested, is a question of state law not reviewable by this court in an action under the Employers' Liability Act. When not based upon an erroneous theory of federal law, refusal of the state court to reverse a judgment upon the ground that the damages are excessive is not reviewable here in an action under the Employers' Liability Act. 168 Kentucky, 262, affirmed.

Holloway, a locomotive engineer, was killed on the Louisville & Nashville Railroad while engaged in the performance of his duties. His administrator brought, for the benefit of his widow, an action under the federal Employers' Liability Act in a state court of Kentucky and recovered a verdict of $32,900. The judgment entered thereon was reversed by the Court of Appeals (163 Ky. 125, 173 S. W. 343); and, at the second trial, a verdict was rendered for $25,000. Judgment was entered on this verdict, and was affirmed with ten per cent. amage by the Court of Appeals (168 Ky. 262, 181 S. W. 1126. The case comes here under section 237 of the Judicial Code. The errors assigned in this court and now insisted upon are these: The first assignment: That the Court of Appeals erred in approving the giving of an instruction and the refusal of another1 by which the trial judge had denied to the company the benefit of the rule declared in Chesapeake & Ohio Ry. v. Kelly, 241 U. S. 485, 491, 36 Sup. Ct. 630, 60 L. Ed. 1117, L. R. A. 1917F, 367, that in computing damages recoverable for the deprivation of future financial benefits, the verdict should be based on their present value. The third assignment: That the Court of Appeals erred in refusing to reverse the judgment of the trial court on the ground that the damages were excessive, and in holding as part of the loss of benefits the widow might have received and which the jury was entitled to consider 'not only her support and maintenance of $50.00 a month, but in addition thereto, one-half of the savings, which decedent might have accumulated if he had lived out his allotted span' of life. First. The instruction given, though general, was correct. It declared that the plaintiff was entitled to recover 'such an amount in damages as will fairly and reasonably compensate' the widow 'for the loss of pecuniary benefits she might reasonably have received' but for her husband's death. This ruling did not imply that the verdict should be for the aggregate of the several benefits payable at different times, without making any allowance for the fact that the whole amount of the verdict would be presently paid at one time. The instruction bore rather an implication to the contrary; for the sum was expressly stated to be that which would 'compensate.' The language used was similar to that in which this court has since expressed, in Chesapeake & Ohio Ry. v. Kelly, supra, 241 U. S. 489, 36 Sup. Ct. 630, 60 L. Ed. 1117, L. R. A. 1917F, 367, the measure of damages which should be applied2. The company had, of course, the right to require that this general instruction be supplemented by another calling attention to the fact that, in estimating what amount would compensate the widow, future benefits must be considered at their present value. But it did not ask for any such instruction. Instead it erroneously sought to subject the jury's estimate to two rigid mathematical limitations: (1) That money would be worth to the widow six per cent., the legal rate of interest; (2) that the period during which the future benefits would have continued was 28.62 years—the life expectancy of the husband according to one of several well known actuarial tables. The company was not entitled to have the jury instructed as matter of law either that money was worth that rate, or that the deceased would not in any event have outlived his probable expectancy. See Chesapeake & Ohio Ry. v. Kelly, supra, 241 U. S. 490-492, 36 Sup. Ct. 630, 60 L. Ed. 1117, L. R. A. 1917F, 367. Nor need we determine whether the local rule of practice, that if instructions are offered upon any issue respecting which the jury should be instructed and they are incorrect in form or substance it is the duty of the trial court to prepare or direct the preparation of a proper instruction upon the point in place of the defective one (see Chesapeake & Ohio Ry. v. De Atley, 241 U. S. 310, 316, 36 Sup. Ct. 564, 60 L. Ed. 1016), was applicable in the case at bar. That is a question of state law, with which we have no concern. In the De Atley Case, the Kentucky Court of Appeals assumed for the purposes of its decision that the local rule applied, and was thereby led to decide a question of federal law. Consequently we had and exercised jurisdiction to review its decision upon that question. Second. The third assignment, in so far as it relates to the refusal of the Court of Appeals to reverse the judgment 'on the ground that the damages are excessive,' is not reviewable he e. Southern Railway Co. v. Bennett, 233 U. S. 80, 86, 34 Sup. Ct. 566, 58 L. Ed. 860. It does not appear in the case at bar, as it did in Chesapeake & Ohio Ry, v. Gainey, 241 U. S. 494, 496, 36 Sup. Ct. 633, 60 L. Ed. 1124, that the action of the Court of Appeals in sustaining the verdict was necessarily based upon an erroneous theory of federal law. As to the alleged error of the Court of Appeals in holding as part of the benefit the widow might have received 'not only her support and maintenance of $50.00 a month, but in addition thereto, one-half of the savings, which decedent might have accumulated,' it is a sufficient answer that the trial court did not give any instruction on that subject, nor was it requested to give any, and that the Court of Appeals did not hold as stated that the widow could share in the loss to the estate. It held that the pecuniary benefit which the jury was entitled to consider in estimating the widow's damages was not merely what she would have spent for maintenance and support, but what she would otherwise have received from her husband. Affirmed.

243.US.426

Section 2 of the General Laws of Oregon, 1913, c. 102, p. 169, providing that "No person shall he employed in any mill, factory or manufacturing establishment in this State more than ten hours in any one day, except watchmen and employees when engaged in making necessary repairs, or in case of emergency, where life or property is in imminent danger.; provided, .however, employees may work overtime not to exceed three hours in any one day, conditioned that payment be made for said overtime at the rate of time and one-half of the regular wage," is construed as in purpose an hours of service law and as such is upheld as a valid health regulation. Whether the law could be upheld as a regulation of wages is not considered or decided. While mere legislative declaration can not give character to a law or turn illegal into legal operation, the court will not ascribe to the legislature an intent to disguise an illegal purpose or the improvidence of effecting one thing while intending another when, as in this case, the purpose as declared in the act (§ 1) and confirmed by the state court is legal and the provisions of the act can be accommodated to it. The provision for overtime and extra pay is in nature a penalty to deter from excess of the ten-hour limit. In sustaining a state law passed in the exercise of an admitted power of government the court need not be sure of the precise reasons for means adopted by the legislature, nor may it pass upon their adequacy or wisdom. Upon the question whether a ten-hour law is necessary or useful for the preservation of the health of employees in "mills, factories, and manufacturing establishments" the court may accept the judgment of the state legislature and state supreme court, when the record contains no facts to support the contrary contention. The Oregon law, supra, in limiting the hours of employees in "mills, factories, and manufacturing establishments" does not unduly discriminate against their employers as compared with other employers not included in the classification. 71 Oregon, 259, affirmed.

Indictment charging a violation of a statute of the state of Oregon, § 2 of which provides as follows: 'No person shall be employed in any mill, factory or manufacturing establishment in this state more than ten hours in any one day, except watchmen and employees when engaged in making necessary repairs, or in case of emergency, where life or property is in imminent danger; provided, however, employees may work overtime not to exceed three hours in any one day, conditioned that payment be made for such overtime at the rate of time and one half of the regular wage.' [Laws 1913, chap. 102, p. 169.] A violation of the act is made a misdemeanor, and in pursuance of this provision the indictment was found. It charges a violation of the act by plaintiff in error, Bunting, by employing and causing to work in a flour mill belonging to the Lake View Flouring Mills, a corporation, one Hammersly for thirteen hours in one day, Hammersly not being within the excepted conditions, and not being paid the rate prescribed for overtime. A demurrer was filed to the indictment, alleging against its sufficiency that the law upon which it was based is invalid because it violates the 14th Amendment of the Constitution of the United States and the Constitution of Oregon. The demurrer was overruled; and the defendant, after arraignment, plea of not guilty, and trial, was found guilty. A motion in arrest of judgment was denied and he was fined $50. The judgment was affirmed by the supreme court of the state. The chief justice of the court then allowed this writ of error. The consonance of the Oregon law with the 14th Amendment is the question in the case, and this depends upon whether it is a proper exercise of the police power of the state, as the supreme court of the state decided that it is. That the police power extends to health regulations is not denied, but it is denied that the law has such purpose or justification. It is contended that it is a wage law, not a health regulation, and takes the property of plaintiff in error without due process. The contention presents two questions: (1) Is the law a wage law, or an hours-of-service law? And (2) if the latter, has it equality of operation? Section 1 of the law expresses the policy that impelled its enactment to be the interest of the state in the physical well-being of its citizens and that it is injurious to their health for them to work 'in any mill, factory or manufacturing establishment' more than ten hours in any one day; and § 2, as we have seen, forbids their employment in those places for a longer time. If, therefore, we take the law at its word, there can be no doubt of its purpose, and the supreme court of the state has added the confirmation of its decision, by declaring that 'the aim of the statute is to fix the maximum hours of service in certain industries. The act makes no attempt to fix the standard of wages. No maximum or minimum wage is named. That is left wholly to the contracting parties.' [71 Or. 275, L.R.A. 1917C, 1162, 139 Pac. 731, Ann. Cas. 1916C, 1003.] It is, however, urged that we are not bound by the declaration of the law or the decision of the court. In other words, and to use counsel's language, 'the legislative declaration of necessity, even if the act followed such declaration, is not binding upon this court. Coppage v. Kansas, 236 U. S. 1, 59 L. ed. 441, L.R.A.1915C. 960, 35 Sup. Ct. Rep. 240.' Of course, mere declaration cannot give character to a law nor turn illegal into legal operation, and when such attempt is palpable, this court necessarily has the power of review. But does either the declaration or the decision reach such extreme? Plaintiff in error, in contending for this and to establish it, makes paramount the provision for overtime; in other words, makes a limitation of the act the extent of the act, indeed, asserts that it gives, besides, character to the act, illegal character. To assent to this is to ascribe to the legislation such improvidence of expression as to intend one thing and effect another; or artfulness of expression to disguise illegal purpose. We are reluctant to do either, and we think all the provisions of the law can be accommodated without doing either. First, as to plaintiff in error's attack upon the law. He says: 'The law is not a ten-hour law; it is a thirteen-hour law designed solely for the purpose of compelling the employer of labor in mills, factories, and manufacturing establishments to pay more for labor than the actual market value thereof.' And further: 'It is a ten-hour law for the purpose of taking the employer's property from him and giving it to the employee; it is a thirteen-hour law for the purpose of protecting the health of the employee.' To this plaintiff in error adds that he was convicted, not for working an employee during a busy season for more than ten hours, but for not paying him more than the market value of his services. The elements in this contention it is difficult to resolve or estimate. The charge of pretense against the legislation we, as we have already said, cannot assent to. The assumption that plaintiff in error was convicted for not paying more in a busy season than the market value of the services rendered him, or that, under the law, he will have to do so, he gives us no evidence to support. If there was or should be an increase of demand for his products, there might have been or may be an increase of profits. However, these are circumstances that cannot be measured, and we prefer to consider with more exactness the overtime provision. There is a certain verbal plausibility in the contention that it was intended to permit thirteen hours' work if there be fifteen and one-half hours' pay, but the plausibility disappears upon reflection. The provision for overtime is permissive, in the same sense that any penalty may be said to be permissive. Its purpose is to deter by its burden, and its adequacy for this was a matter of legislative judgment under the particular circumstances. It may not achieve its end, but its insufficiency cannot change its character from penalty to permission. Besides, it is to be borne in mind that the legislature was dealing with a matter in which many elements were to be considered. It might not have been possible, it might not have been wise, to make a rigid prohibition. We can easily realize that the legislature deemed it sufficient for its policy to give to the law an adaptation to occasions different from special cases of emergency for which it provided,—occasions not of such imperative necessity, and yet which should have some accommodation; abuses prevented by the requirement of higher wages. Or even a broader contention might be made that the legislature considered it a proper policy to meet the conditions long existent by a tentative restraint of conduct rather than by an absolute restraint, and achieve its purpose through the interest of those affected rather than by the positive fiat of the law. We cannot know all of the conditions that impelled the law or its particular form. The supreme court, nearer to them, describes the law as follows: 'It is clear that the intent of the law is to make ten hours a regular day's labor in the occupations to which reference is made. Apparently the provisions permitting labor for the overtime on express conditions were made in order to facilitate the enforcement of the law, and in the nature of a mild penalty for employing one not more than three hours overtime. It might be regarded as more difficult to detect violations of the law by an employment for a shorter time than for a longer time. This penalty also goes to the employee in case the employer avails himself of the overtime clause.' But we need not cast about for reasons for the legislative judgment. We are not required to be sure of the precise reasons for its exercise, or be convinced of the wisdom of its exercise. Rast v. Van Deman & L. Co. 240 U. S. 342, 365, 60 L. ed. 679, 690, L.R.A.1917A, 421, 36 Sup. Ct. Rep. 370. It is enough for our decision if the legislation under review was passed in the exercise of an admitted power of government; and that it is not as complete as it might be, not as rigid in its prohibitions as it might be, gives, perhaps, evasion too much play, is lighter in its penalties than it might be, is no impeachment of its legality. This may be a blemish, giving opportunity for criticism and difference in characterization, but the constitutional validity of legislation cannot be determined by the degree of exactness of its provisions or remedies. New policies are usually tentative in their beginnings, advance in firmness as they advance in acceptance. They do not at a particular moment of time spring full-perfect in extent or means from the legislative brain. Time may be necessary to fashion them to precedent customs and conditions, and as they justify themselves or otherwise they pass from militancy to triumph or from question to repeal. But passing general considerations and coming back to our immediate concern, which is the validity of the particular exertion of power in the Oregon law, our judgment of it is that it does not transcend constitutional limits. This case is submitted by plaintiff in error upon the contention that the law is a wage law, not an hours-of-service law, and he rests his case on that contention. To that contention we address our decision and do not discuss or consider the broader contentions of counsel for the state that would justify the law even as a regulation of wages. There is a contention made that the law, even regarded as regulating hours of service, is not either necessary or useful 'for preservation of the health of employees in mills, factories, and manufacturing establishments.' The record contains no facts to support the contention, and against it is the judgment of the legislature and the supreme court, which said: 'In view of the well-known fact that the custom in our industries does not sanction a longer service than ten hours per day, it cannot be held, as a matter of law, that the legislative requirement is unreasonable or arbitrary as to hours of labor. Statistics show that the average daily working time among workingmen in different countries is, in Australia, 8 hours; in Britain, 9; in the United States, 9 3/4; in Denmark, 9 3/4; in Norway, 10; Sweden, France, and Switzerland, 10 1/2; Germany, 10 1/4; Belgium, Italy, and Austria, 11; and in Russia, 12 hours.' The next contention of plaintiff in error is that the law discriminates against mills, factories, and manufacturing establishments in that it requires that a manufacturer, without reason other than the fiat of the legislature, shall pay for a commodity, meaning labor, one and one-half times the market value thereof while other people, purchasing labor in like manner in the open market, are not subjected to the same burden. But the basis of the contention is that which we have already disposed of; that is, that the law regulates wages, not hours of service. Regarding it as the latter, there is a basis for the classification. Further discussion we deem unnecessary. Judgment affirmed. The CHIEF JUSTICE, Mr. Justice Van Devanter, and Mr. Justice McReynolds, dissent. Mr. Justice Brandeis took no part in the consideration and decision of the case.

244.US.266

With the delivery of a mortgage to secure bonds of one corporation there was delivered to the trustee stamped on each bond a guaranty by another corporation whereby the latter guaranteed "to the Trustee of the within-mentioned mortgage, for the benefit of the holders thereof, punctual payment of the principal of the within bond and the interest thereon . . . according to the tenor of the several coupons belonging thereto." Upon foreclosing the mortgage, the trustee obtained judgment against the guarantor company for a deficiency. Held: (1) That whether the guaranty were treated as having created an aggregation of as many obligations as there were bonds, each constituting a separate contract between the guarantor and the respective bondholder, or a,s ingle -obligation for the benefit of the bondholders collectively, in either case there was a merger of the original cause or causes of action in the single judgment recovered by the trustee. (2) The judgment being held as an unit by the trustee, for the benefit of all the bondholders, a suit to enforce it by a majority of-them, though alleged to be on behalf also of all others similarly situated, could not be maintained without joining the trustee as a necessary party. (3) In such suit, for the purpose of testing the District Court's jurisdiction on the basis of diverse citizenship, the trustee, though made a defendant, must be realigned as a plaintiff, no hostility on its part appearing beyond a refusal to institute the action, assignable to no other motive than to aid the federal jurisdiction, and its real attitude being friendly as evinced by its answer. One corporation, after guaranteeing bonds of another, passed into a receivership in the District Court which ended in foreclosure of its own bonds and sale of its property, without reservation in the decree of liens or similar rights or power of the court concerning them. Meanwhile by independent proceedings in a state court the bonds of the second company were foreclosed and a deficiency judgment was rendered against the first company on the guaranty, which judgment being presented as a claim in the District Court proceedings was rejected because the first company's liability to pay it was contingent at the date set for proving claims in that court. Held, that a suit brought later in the District Court upon the ground that by its decree the equities of persons interested in the deficiency judgment were wrongly ignored and seeking to have that judgment impressed as a lien upon .the property so sold, was not within the District Court's jurisdiction as a suit ancillary to the foreclosure proceedings in which its decree was rendered. Affirmed.

This appeal presents the single question whether the district court erred in dismissing the bill for want of jurisdiction, on the ground that the controversy involved was not one between citizens of different states. The question was duly certified in conformity to § 238 of the Judicial Code [36 Stat. at L. 1157, chap. 231, Comp. Stat. 1916, § 1215]. The facts are these: The Twenty-eighth & Twenty-ninth Street Crosstown Railroad Company, of New York city, issued, on October 1, 1896, bonds to the amount of $1,500,000, and secured them by a mortgage of its property to the Central Trust Company. The Metropolitan Street Railway Company, having previously leased the Crosstown Railroad, delivered with the mortgage stamped on each of the bonds, a guaranty to the Trust Company in the following terms: 'For Value Received, the Metropolitan Street Railway Company hereby guarantees to the trustee of the within-mentioned mortgage, for the benefit of the holders thereof, punctual payment of the principal of the within bond and the interest thereon at the time and in the manner therein specified and according to the tenor of the several coupons belonging thereto.' In September, 1907, the Metropolitan Company passed into the hands of receivers appointed by the circuit (now district) court of the United States for the southern district of New York. Soon thereafter default was made in the payment of interest on the Crosstown bonds. The customary bondholders' committee was formed, and 1,373 of the 1,500 bonds outstanding were deposited with it. At its request the Trust Company declared the bonds due and brought suit in the supreme court of New York to foreclose the mortgage. The court by special order granted an application of the Trust Company for permission to liquidate, in the foreclosure suit, its claim against the Metropolitan Company on the guaranty. For that purpose the Metropolitan Company was joined as defendant; and a deficiency judgment for $1,745,344.21 was entered against it on February 20, 1912, in favor of the Trust Company. The property of the Metropolitan Company had meanwhile been administered by receivers appointed by the district court of the United States for the southern district of New York; and the several committees representing its bondholders, stockholders, and creditors had adopted a plan and agreement for the reorganization of that company. Pursuant thereto its franchise and assets had been, on January 1, 1912, transferred to a new corporation, the New York Railways Company; and the securities and cash issued in exchange therefor were distributed among security holders, creditors, and otherwise, as in the plan provided. No provision was made in the plan for adjusting the liability of the Metropolitan Company arising out of its guaranty of the Crosstown bonds. The district court refused to allow the claim on the deficiency judgment to be proved in the Metropolitan receivership, because the date as of which claims against the property were ordered to be proved was January 15, 1908, and the claim on the guaranty was at that date contingent merely. Consequently neither the committee nor the Trust Company representing the Crosstown bondholders assented to the plan for reorganizing the Metropolitan Company. In October, 1913, the members of the Crosstown bondholders' committee, suing on behalf of themselves and 'all other similiarly situated bondholders,' brought suit in the district court of the United States for the southern district of New York against the New York Company, the Metropolitan Company, and the Central Trust Company, to enforce out of the property of the New York Company satisfaction of the liability of the Metropolitan Company arising out of its guaranty. The bill set forth facts to bring the case within the rule declared in Northern P. R. Co. v. Boyd, 228 U. S. 482, 57 L. ed. 931, 33 Sup. Ct. Rep. 554, and Kansas City Southern R. Co. v. Guardian Trust Co. 240 U. S. 166, 60 L. ed. 579, 36 Sup. Ct. Rep. 334, and, as reason for the suit being brought in the name of the bondholders, alleged the following: 'That the defendant Central Trust Company of New York holds the said judgment against the defendant Metropolitan Street Railway Company, amounting to $1,745,344.21, for the benefit of and as the trustee for the plaintiffs and the other holders of said bonds of the Twenty-eighth and Twenty-ninth Streets Crosstown Railroad Company, hereinbefore described; and that the reason why this action is brought by the plaintiffs and why the Central Trust Company of New York is made a party defendant is that the plaintiffs are the lawful owners and holders of said bonds in the amount hereinbefore alleged, and the beneficial and equitable owners of said judgment held by the defendant Central Trust Company of New York; and that the defendant Central Trust Company of New York has refused to bring this action after due demand by the plaintiffs upon said defendant Central Trust Company of New York, although the plaintiffs have offered proper indemnification to the said defendant Central Trust Company of New York, as such trustee, to institute this suit to enforce the rights of the trustee and of the bondholders under said judgment and guaranty made by said defendant Metropolitan Street Railway Company, as aforesaid.' Jurisdiction of the district court was rested wholly on diversity of citizenship, plaintiffs being all citizens and residents of states other than New York, and the three defendants, corporations organized under the laws of that state. The Trust Company filed an answer in substance joining in the prayer of the bill and admitting its allegations. The New York Railways Company, besides answering to the merits, alleged: 'That the interests of the plaintiffs, and all other security holders, and the interests of said defendant Central Trust Company of New York, are identical and in all respects similar to the interests of the plaintiffs, and all other owners or holders of bonds secured by the mortgage . . . ; that the parties to this action should be realigned by the court, and placed according to their interests in the subject-matter of this suit, and for the reasons hereinbefore alleged, and for divers other reasons appearing on the face of the bill upon the trial of this action, this defendant alleges that this court is without jurisdiction to entertain this complaint, or to give judgment for the relief demanded therein.' It also appeared by stipulation that the holders of a large part of the Crosstown bonds deposited with the committee were citizens and residents of New York. Plaintiffs admit that in respect to the Crosstown Company no cause of action on the bond vested in any one bondholder; since the bondholders were bound by the terms of the mortgage, under which all right to sue on the bonds and to foreclose the mortgage was in the Trust Company. But they insist that the rights of the bondholders against the Metropolitan Company on the guaranty were entirely distinct from their rights against the Crosstown Company on the bonds; that the guaranty vested in the holder of each bond a cause of action on which he could sue in his own name; that the original guaranty to the Trust Company was a naked promise to one for the benefit of another; that the judgment obtained by the Trust Company belongs to the holders of the bonds; that it is in this suit merely a 'use plaintiff,' a title owner of the judgment, who owes no duty to the plaintiff or other bondholders with reference thereto, has no interest in the result of the suit, and need not have been made a party thereto; and that, being a merely formal party, should be disregarded in determining the question of jurisdiction. Before discussing whether the Trust Company has an interest, and, if so, its character and effect, the nature of this suit should be considered. 1. The cause of action. This is not a suit upon the original guaranty. It is a suit to enforce a judgment. The prayer of the bill is that the property acquired by the New York Railways Company 'be declared to be subject to the lien of said judgment.' The rights on the original guaranty, whether they be treated, by virtue of the stamping on each bond, as an aggregation of 1,500 separate causes of action, or be treated as a single cause of action for the benefit of the 1,500 bondholders, were merged in that judgment. This is true, even if, as contended, the guaranty to the Trust Company stamped on each bond 'for the benefit of the holders thereof' be construed as importing a promise of payment directly to the holder, on which he was at liberty to sue in his own name. For the recovery of the judgment extinguished through merger the original cause or causes of action, and the judgment is one recovered by the Trust Company as trustee.1 2. The interest of the Trust Company. Whatever may have been the situation originally with respect to rights of individual bondholders on the guaranty, we have now a single judgment held by the Trust Company as trustee for the pro rata benefit of 1,500 bondholders. The plaintiffs allege that they hold 1,373 of these bonds,—that is, a fraction only of the beneficial interest. It is thus clear that the minority bondholders as well as the railway companies defendant require for the protection of their respective interests that the Trust Company be a party to the litigation; the minority bondholders, so that they may share ratably in the proceeds; the railway companies, in order that they may, upon paying the amount of the judgment, be discharged from the possibility of further liability. The judgment is a unit and the relief sought on it is necessarily for the benefit of all. Blacklock v. Small, 127 U. S. 96, 104, 32 L. ed. 70, 73, 8 Sup. Ct. Rep. 1096. But a suit by some bondholders does not, by the allegation that it is in behalf of all others similarly situated, become a class suit, binding on all. Wabash R. Co. v. Adelbert College, 208 U. S. 38, 57, 52 L. ed. 379, 387, 28 Sup. Ct. Rep. 182. And for the protection of the Trust Company itself joinder as a party is essential, in order that, upon distribution of any proceeds, it may be discharged from obligations to its beneficiaries. To the state of facts presented here, Greene v. Republic F. Ins. Co. 84 N. Y. 572, which is strongly relied upon by plaintiffs, has no application. In that case the assignee of a chose in action, having recovered a judgment in Mississippi, where he was obliged (as by the common-law procedure) to sue for his own use in the assignor's name, was permitted to sue on the judgment in New York in his own name, since the New York Code requires suit to be brought in the name of the real party in interest. There the assignor, having assigned the cause of action, had no interest in it when the action was commenced in Mississippi, and consequently no interest in the judgment; and the judgment record so recited, declaring that it was 'for the use and benefit of Edward A. Greene.' Here there has been no assignment either of the cause of action or of the judgment. The prayer of the complaint was that the Trust Company 'as trustee may have judgment against . . . said Metropolitan Company;' and in accordance with that prayer judgment for the deficiency was entered. So far as the record discloses, the deficiency judgment against the Metropolitan Company, like that against the Crosstown Company, and the property transferred by the mortgage, is held by the Trust Company as trustee for all the bondholders.2 That under such circumstances the trustee is a necessary party to this suit is clear. 3. The affiliation of the Trust Company. It is clear that the interest of the Trust Company in this controversy lies wholly with the plaintiffs. This is shown, among other things, by the request in its answer that the relief prayed for in the bill be granted. No reason is assigned in the bill or in the answer of the Trust Company for its refusal to sue; and none suggests itself save the willingness of an accommodating trustee to enable its beneficiaries to present that appearance of diversity of citizenship essential to conducting this litigation in the Federal court. It is not contended that this refusal to sue makes the Trust Company an adversary, to be classed for purposes of jurisdiction with the real defendants,—as in those cases where the refusal to sue was part of a fraudulent participation in the wrongdoing, and where the trustee or corporation in effect ranged itself in opposition to the relief sought.3 The Trust Company having, as we have shown, a real interest in the controversy, which makes it a necessary party to the suit, must be aligned as a party plaintiff, where its interest lies.4 Since the necessary realignment of the Trust Company as party plaintiff is fatal to the jurisdiction of the district court, it is unnecessary to consider the legal effect of the fact stipulated, that a large part of the bondholdersrepresented by plaintiffs are likewise citizens and residents of New York. 4. Whether the suit is an ancillary one. The plaintiffs, relying upon Wabash R. Co. v. Adelbert College, 208 U. S. 38, 53, 52 L. ed. 379, 385, 28 Sup. Ct. Rep. 182, attempt to sustain the jurisdiction of the court on the ground that this suit is ancillary to the foreclosure proceedings against the Metropolitan Company in the district court. But the facts in that case bear no resemblance to those here under consideration. There the rights and lien which it was declared the Federal court had exclusive jurisdiction to ascertain and enforce were expressly reserved by the decree; and the purchaser under the decree took title expressly subject to them. The decree of foreclosure under which sale was made of the property of the Metropolitan Company, which was later transferred to the New York Company, contained, so far as appears from the record, no reservation whatsoever concerning liens or similar rights. And there is in the answer of the New York company the uncontroverted statement that the properties subject to the foreclosure 'were sold to the purchasers and to the New York Railways Company, free and clear of any lien, claims, or interest in any party outstanding, except the interests' of those expressly provided for in the plan of reorganization; and that the proceedings resulting in the deficiency judgment against the Metropolitan Company here sued on 'did not constitute a claim against, or a lien on, or an interest in, any of the property rights or estate of the Metropolitan Street Railway Company.' Furthermore, the bill in the instant case does not purport to be ancillary to the Metropolitan Company foreclosure proceedings. Plaintiffs here seek merely to establish an equity against the property of the New York Company, on the theory that the rights of the Crosstown bondholders have been improperly ignored. They set up a wholly independent cause of action. Decree affirmed.

244.US.368

Where a carrier, by reason of temporary and permanent injunctions against state officials and shippers and travellers as a class, collects rates in excess of those fixed by law, the right of a person, who did not appear, to sue for the excess paid by him during the restraint revives when the final decree is reversed by this court and its mandate is issued to dismiss the bill. Viewed from the standpoint of equitable jurisdiction, a class bill to restrain all such persons from suing to recover their overpayments is not maintainable as a bill to prevent multiplicity of suits, in the absence of any controverted question of fact or law common to their claims. In a suit to test the validity of rates fixed by the State of Arkansas, the District Court, by injunction pendente lite and later by final decree, enjoined the enforcement of the rates, and prohibited shippers and travellers generally from suing the carrier for its failure to keep them in effect. The decree having been reversed by this court and mandate issued with directions to dismiss the bill, Allen v. St. Louis, Iron Mountain & Southern Ry. Co., 230 U. S. 553, Held, that thereafter the District Court was without power to inquire into and assess the damages sustained by shippers or travellers by reason of the temporary and permanent injunctions, for the purpose of fixing liability on the temporary injunction bonds, at least as to persons who did not elect to appear and make claim; and that, therefore, a reference to that end could afford no basis for an ancillary suit to enjoin such persons from suing in the state court (after the dismissal of the original bill) to recover excess rates collected by the carrier under the temporary and permanent injunctions. Rule 15 of the District Court for the Eastern District of Arkansas, quoted in a footnote to the opinion, infra, 373, relates merely to damages recoverable on bonds accompanying restraining orders or temporary injunctions. Damages arising from the restraints of a permanent injunction, afterwards reversed, are not recoverable on temporary injunction bonds (Houghton v. Meyer, 208 U. S. 149), particularly where the decree of permanent injunction expressly released further liability on the bonds. 220 Fed. Rep. 876, affirmed.

On July 18, 1908, the St. Louis, Iron Mountain, & Southern Railway Company filed in the western division of the circuit (now district) court of the United States for the eastern district of Arkansas a bill against the Railroad Commissioners of that state to enjoin the enforcement of intrastate freight and passenger rates promulgated by them. Two private citizens, Leigh and McLean, who were alleged to be shippers and travelers on the railroad, were joined as defendants; and the bill prayed that they 'and all other persons belonging to the same class, including all patrons' of the railroad, be enjoined from instituting any suits for penalties or double damages under the Arkansas statutes. On September 3, 1908, a temporary restraining order was granted which, besides enjoining the Railroad Commissioners from enforcing rates promulgated by them, ordered that the two private citizens. 'and all other persons and each of them from and after the time that they shall have knowledge of this order be enjoined from at any time instituting any such suit or action for or on account of any failure of the complainant to keep in effect and observe said inhibited rates or for the recovery of damages by reason of such failure, during the time this order shall continue in effect.' The railway company then executed, as ordered, a bond with surety to the United States in the penal sum of $200,000, 'conditioned that the said complainant shall keep a correct account, showing, as respects the carriage of passengers and freight, the difference between the tariff actually charged and that which would have been charged had the rates inhibited hereby been applied, showing the particular carriage in question and the stations between which the same occurred, and the name of the person affected, so far as may be practicable, which record shall be made and kept subject to the further order of this court, and further conditioned that if it shall eventually be decided that so much of this order as inhibits the enforcement of the existing rates should not have been made, that said complainant shall, within a reasonable time, for be fixed by the court, refund in every instance to the party entitled thereto the excess of charge over what would have been charged had the inhibited rate been applied, together with lawful interest and damages.' On June 23, 1909, an order was made for an additional bond without surety in the sum of $600,000, which provided, among other things, for giving to each passenger or shipper a receipt which would show the amount payable under the enjoined rates.2 On May 11, 1911, a final decree was entered for the railway company, making permanent the injunction in the terms of the restraining order, and further ordering 'that the bond for injunction filed by the complainant here be released and the sureties thereon discharged from liability.' The decree was reversed by this court, with directions to dismiss the bill without prejudice (Allen v. St. Louis, I. M. & S. R. Co. 230 U. S. 553, 57 L. ed. 1625, 33 Sup. Ct. Rep. 1030); and upon filing of the mandate in the district court on July 18, 1913, this was done. But in the decree of dismissal the court 'of its own motion, and against the objection of the complainant, refers, under rule 15 of this court, the matter of damages alleged to have been sustained by the defendants, the Railroad Commission of the State of Arkansas, by reason of the granting of the temporary and permanent injunctions herein, to Jeremiah G. Wallace, Esq., who is hereby appointed a special master for the purpose of determining the damages sustained. That in determining these damages, for the recovery of which the said Commissioners are not acting for themselves, but for the benefit of all persons, shippers, consignees, and passengers who have sustained any damages by reason of the granting of said injunctions, the master is hereby authorized, for the purpose of ascertaining these facts, to examine witnesses, administer oaths, and call upon the plaintiff herein for any books or papers, or transcripts thereof, which, in his opinion, are necessary for the purpose of enabling him to determine any facts in issue in connection with any claim filed with him. 'And the master is further directed to give notice by publication . . . to the effect that all persons having any claims against the complainant by reason of the granting of the injunctions herein shall present the same to him on or before the 1st day of November, 1913, by filing with him the evidence of their claims, or such other proof as they possess.' Thereafter Gallup brought suit in a state court of Arkansas to recover from the railway company the difference between the aggregate freight and passenger rates actually collected from him while the injunctions, temporary and permanent, were in force (that is, from September 3, 1908, to July 18, 1913), and the amount which would have been collected if the rates enjoined had been in effect. The railway company promptly filed, in the district court, on leave granted, what is called a 'supplemental bill of complaint' to restrain Gallup from proceeding in the state court. Metcalf, another shipper, who had not brought suit, but who, it was alleged, was threatening to do so, was also made defendant as representative of the class; and claiming that the facts justified equitable interference on the ground of avoiding multiplicity of suits, an injunction was sought also against him and others similarly situated. The supplemental bill specifically alleged that, by virtue of the decree of May 11, 1911, the railway company was released from all liability on the bonds or otherwise from any damage accruing from the injunctions. Gallup and Metcalf each moved to dismiss the bill for want of equity. Gallup also answered, alleging, among other things, that the overcharges sought to be recovered were mainly those arising after the entry of the final decree in the district court, and also that the aggregate of claims filed with the special master under the decree of July 18, 1913, greatly exceeded $1,000,000, the amount of the bonds. The district court granted the prayer of the supplemental bill. Upon appeal by Gallup and Metcalf the circuit court of appeals modified the decree 'so as to restrain only such actions as are brought on one or both of the bonds.' From the decree as so modified, the railway company appealed to this court. The railway company rests its claim to relief upon two grounds: First: That the district court assumed by the decree of July 18, 1913, jurisdiction to determine all claims arising out of overcharges, so that the commencement by Gallup of suit in the state court was an interference with its jurisdiction. Second: That, in view of the number and character of the claims of other shippers and travelers, equity should intervene to prevent multiplicity of suits. It may be doubted whether, in view of the mandate, there was any power in the district court to order reference to the master to determine the liability on the bonds; but on this question we are not required to express an opinion.3 For it is clear that even if such power existed, it could extend only to such shippers and travelers as elected to file their claims with the master. The order referring the determination of claims for damages to a special master was declared to be 'under rule 15.'4 That rule relates to damages recoverable on bonds given when a restraining order or temporary injunction is issued. Damages arising between May 11, 1911 (the date of the decree granting the permanent injunction), and July 18, 1913 (the date of the decree on mandate dismissing the bill), were not recoverable on the injunction bond. Houghton v. Meyer (Houghton v. Cortelyou) 208 U. S. 149, 52 L. ed. 432, 28 Sup. Ct. Rep. 234. If the remedy of shippers and carrier were limited to proceedings on the bond, they would be denied all recovery for overcharges after May 11, 1911. Furthermore the decree of May 11, 1911, expressly released the railway company and sureties from further liability on the bonds. Insofar as the order referred to the master, 'under rule 15,' the determination also of damages 'alleged to have been sustained by reason of the granting' of the permanent injunction, it was clearly erroneous and affords no justification for enjoining suit in a state court to recover for overcharges made after the final decree. It is, indeed, contended by the railway company, that the effect of the decree entered by the district court is to deprive shippers and travelers of all remedy under the bond.5 But Gallup makes no claim under the bond. He sues on causes of action to recover overcharges arising under the Arkansas statutes. His right to sue, suspended by the injunctions improvidently granted, revived as soon as the permanent injunction was dissolved by the decree dismissing the bill. Although the injunctions enjoined all shippers and travelers, and therefore him, from instituting suits on account of alleged overcharges, Gallup did not in fact become a party to the suit in the district court; and he could not, after the mandate directed dismissal of the bill, be compelled to submit to that court the adjudication of his claim. The contention of the railway company that the 'supplemental bill' should be sustained to prevent multiplicity of suits is also unfounded. Unless it is maintainable as an ancillary bill, the Federal court was without jurisdiction, as there was no diversity of citizenship. But it was not ancillary to any relief properly within the scope of the decree dismissing the original bill. As an independent bill it is also without equity. The only common issue between the railway company and the several shippers and travelers (namely, whether the rates promulgated by the Railroad Commission were confiscatory) had been settled by the decision of this court. In no other respect have shippers and travelers a common interest. The claims of each present a separate controversy unconnected with that of any of the others. This is obviously true as to all issues of fact which will arise in considering their several claims. And the bill contains no allegation or even suggestion that a controverted question of law, common to all the claims, is involved, which will determine their right to recover, or even that there is involved a question of law not fundamental, in which they have a common interest. It might be a convenience to the railway company to have these numerous claims of shippers determined by the master in the district court; but such a course would certainly involve great inconvenience to many of the shippers. The bill cannot be maintained as one to prevent multiplicity of suits. Affirmed.

245.US.24

If, in the making of a survey of public lands, an area is through fraud or mistake meandered as a body of water or lake where no such body of water exists, riparian rights do not accrue to the surrounding lands, and the Land Department, upon discovering the error, has power to deal with the meandered area, to cause it to be surveyed, and lawfully to dispose of it. The fact that its administrative officers, before discovery of the error, have treated such a meandered tract as subjected to the riparian rights of abutting owners, under the state laws, and consequently as not subject to disposal under the laws of the United States, can not estop the United States from asserting its title in a controversy with an abutting owner; and even as against such an owner, who acquired his property before the mistake was discovered and in reliance upon actions and representations of federal officers carrying, assurance that such riparian rights existed, the United States may equitably correct the mistake and protect its title to the meandered land. The equities of the abutting owner, if any, in such circumstances, are not cognizable judicially, but should be addressed to the legislative department of the government. The Swamp Land Act of September 28, 1850, c. 84, 9 Stat. 519, did not convey land of its own force, without survey, selection or patent. A suit by the United States to quiet its title to land which was excluded from survey through an erroneous meander, against a defendant owning abutting land under federal patent and erroneously claiming, in virtue of his patent, riparian rights in the meandered area, is not a suit to vacate or annul the defendant's patent, and the statute of limitations of March 3, 1891, c. 561, 26 Stat. 1095, is not applicable in defense. In the survey of a township in Arkansas, part of the land was erroneously meandered and described on the plat as a "lake," and the lands abutting on the meander line were subdivided into lots. The. State selected the township under the Swamp Land Act of 1850, describing it by number and stating an acreage equal to the entire area within the township lines minus the area meandered. After the Act of March 3, 1857, c. 117, 11 Stat. 251, by which Congress confirmed "the selection of swamp and overflowed lands granted to the several States . . . heretofore made and reported to the Commissioner of the General Land-Office," and provided that such selection should be approved and patented, a patent was issued to Arkansas purporting to convey "the whole of the township" (giving its number,) except section 16; and stating the acreage conveyed at a figure substantially the same as the total acreage within the township lines minus that section and the meandered area. Held, that the effect of the meander was to exclude the meandered area from the township, and that neither the selection, the confirmatory act nor the patent could be construed as embracing it. Chapman & Dewey Lumber Co. v. St. Francis Levee District, 232 U. S. 186. Held, further, that the State could have derived no title to the meandered area through the Compromise Act of April 29, 1898, c. 229, 30 Stat. 367, as a result of such selection and confirmation. 227 Fed. Rep. 827, affirmed.

The United States, asserting that designated parcels of land were part of its public domain, sought a decree quieting its title. Sustaining the title thus asserted and rejecting a claim to the contrary on the part of the defendant, the trial court awarded the relief prayed ([D. C.] 214 Fed. 630), and the appellant, who was defendant, seeks on this appeal to reverse the decree of the court below sustaining the trial court (227 Fed. 827, 142 C. C. A. 351). A reference to the origin and subject-matter of the controversy and a statement of some undisputed and indisputable facts will clarify and limit the issues to be passed upon. The public survey of the United States concerning the area in which the land was situated (township 12 north, range 9 east of the fifth principal meridian, county of Mississippi, state of Arkansas) was filed in 1841. By that survey and the plat and field notes thereof it appeared that in sections 22, 26 and 27 there was stated to be a body of water styled a lake which was excluded from the survey by means of a meander line, diminishing to the extent of the excluded area the acreage surveyed in the sections in question and thereby causing them to become fractional. As a matter of course also the meander line to the extent that it excluded the body of water from the survey diminished the area of surveyed land lying within the exterior boundaries of the township. In 1853 the state of Arkansas, it may be assumed, complying with legal requisites and conforming to the administrative regulations of the Land Department, filed a list of selections under the grant made to it of swamp and overflowed lands by the Act of Congress of 1850. 9 Stat. 519. The selections included township 12 and stated the acreage which it embraced conformably to the reduction of such acreage made by the meander line. In 1857 Congress confirmed 'the selection of swamp and overflowed lands granted to the several states * * * heretofore made and reported to the Commissioner of the General Land Office' and provided that such selection 'shall be approved and patented to the said several states. * * *' Chapter 117, 11 Stat. 251 [Comp. St. 1916, § 4963]. In 1858 a patent was issued by the United States to the state of Arkansas, the land patented being described as follows: 'Township twelve (12) north, range nine (9) east. The whole of the township except section sixteen (16) containing fourteen thousand five hundred and sixty-five acres and three hundredths of an acre, according to the official plat of survey of the said lands returned to the General Land Office, by the Surveyor General.' The acreage thus stated substantially conformed to the reduction brought about by the omission of section 16 which had already been given to the state and of the area of the lake which had been meandered and excluded from the survey. Undoubtedly following the patent for a considerable period of time the officers of the Land Department treated the meandered and excluded surface of the lake as not being part of the public domain subject to survey and to disposal by the United States, upon the theory that the same by the operation of the meander had been excluded from the survey and made subject to the riparian rights of the several abutting owners under the state law. And it may be admitted that the state of Arkansas acted upon the assumption that all the land, whether surveyed or unsurveyed, within the exterior limits of the township had passed to it. In 1907 or thereabouts, growing out of some asserted right to have the meandered and unsurveyed area surveyed and disposed of as part of the public domain, on the ground that through fraud, error or mistake, the area in question had been stated in the survey to be a lake when in fact it was not and was on the contrary land which should have been surveyed, the Land Department after due notice undertook an investigation of the subject. Without stating the proceedings which ensued, it suffices to say that in 1909 it was definitely found that the alleged fraud, error or mistake of the survey was established because there was no lake to meander at the time the survey was made, it being found that all the evidence conclusively so established. Giving effect to this the unsurveyed area was were initiated thereon. This controversy were initiated thereon. This controbersy arose between the rights of the United States and such entrymen and those asserted by the defendant below who held the rights of the state of Arkansas, if any, to the area in question as evidenced by the patent or as embraced by the grant of swamp and overflowed lands and the action of the United States authorities taken on the subject. It thus becomes apparent that the subject of the controversy relates solely to the unsurveyed area resulting from the erroneous assumption as to the existence of a lake and embraces only 853.60 acres. It also is certain that as the result of the concurrent findings of fact by the two courts and the admission made by the parties there is no controversy as to the facts concerning the error committed as to the supposed lake, leaving therefore to be decided only the legal questions which arise from the admitted facts. As a means of putting out of view questions which are not debatable we at once state two legal propositions which are indisputable because conclusively settled by previous decisions. First. Where in a survey of the public domain a body of water or lake is found to exist and is meandered, the result of such meander is to exclude the area from the survey and to cause it as thus separated to become subject to the riparian rights of the respective owners abutting on the meander line in accordance with the laws of the several states. Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 838, 35 L. Ed. 428; Kean v. Calumet Canal Co., 190 U. S. 452, 459, 23 Sup. Ct. 651, 47 L. Ed. 1134; Hardin v. Shedd, 190 U. S. 508, 519, 23 Sup. Ct. 685, 47 L. Ed. 1156. Second. But where upon the assumption of the existence of a body of water or lake a meander line is through fraud or error mistakenly run because there is no such body of water, riparian rights do not attach because in the nature of things the condition upon which they depend does not exist and upon the discovery of the mistake it is within the power of the Land Department of the United States to deal with the area which was excluded from the survey, to cause it to be surveyed and to lawfully dispose of it. Niles v. Cedar Point Club, 175 U. S. 300, 20 Sup. Ct. 124, 44 L. Ed. 171; French-Glenn Live Stock Co. v. Springer, 185 U. S. 47, 22 Sup. Ct. 563, 46 L. Ed. 800; Security Land & Exploration Co. v. Burns, 193 U. S. 167, 24 Sup. Ct. 425, 48 L. Ed. 662; Chapman & Dewey v. St. Francis Levee District, 232 U. S. 186, 34 Sup. Ct. 297, 58 L. Ed. 564. Coming to test the questions for decision in the light of these propositions there can be no doubt that the case is taken out of the reach of the first and is brought under the control of the second, as the result of the conclusive finding as to the mistake committed concerning the existence of the lake and the consequent error in the survey, unless it be that for some reason the unquestioned rule which the second proposition embodies is inapplicable. Indeed, putting aside a contention made as to the face of the patent, which we are of opinion is sufficiently disposed of by what we have already said, all the other contentions proceed not upon a challenge of the doctrine embodied in the second proposition but upon the erroneous theory that it is inapplicable to the case in hand—an error which we shall briefly demonstrate by separately considering the contentions. a. In the first place it is in many forms of statement insisted that although the patent expressly referred to the plat and survey and purported only to grant the acreage surveyed as reduced by the exclusion from the survey of the body of the lake, that becomes negligible since the right of the state depended upon the grant made by the Swamp Land Act, the selection made under that act and the approval of that selection by the act of Congress of 1857, all of which must be considered in determining the grant made to the state and give rise when considered to the irresistible implication that all the land embraced in township 12 passed to the state. Concretely stated the proposition is this: That as the selection made by the state was of township 12, the exterior bounds of that township became the measure of the state's title irrespective of what was surveyed or unsurveyed within those exterior lines. But it is at once obvious that this proposition rests upon a contradictory assumption, since it treats the designation of township 12 as the measure of the rights conferred and immediately proceeds to exclude from view the criteria by which alone the existence and significance of the insisted upon designation (township 12) is to be determined. Aside from this, however, it is further apparent that the contention disregards the very basis upon which the decided cases upholding the doctrine stated in the second proposition rest, which is that the effect of a meander line is to exclude absolutely from the township the area meandered and to cause therefore its nature and character to depend not upon the exterior lines of the township but upon the condition existing within those lines made manifest and fixed by the necessary legal consequences resulting from the meander line. This conclusive view is clearly pointed out in Chapman & Dewey v. St. Francis Levee District, 232 U. S. 196, 197, 34 Sup. Ct. 297, 58 L. Ed. 564. And that case also (232 U. S. 198, 34 Sup. Ct. 297, 58 L. Ed. 564) completely answers the argument that although the land was not embraced in the selection, was not included in the township because unsurveyed and did not pass by the patent or the selection independently considered, it yet must be treated as having passed to the state under the Swamp Land Act of 1850 because it was eligible to be selected under that act. b. The proposition that title to the land must be considered as being in the state because of the Compromise Act of 1898 (chapter 229, 30 Stat. 367) is on the face of that act, we think, in view of what we have said, devoid of Merit. We say this because the contention rests upon the assumption which we have already disposed of that the land excluded by the meander line was embraced by the selection approved by the act of Congress of 1857. c. The assertion that an estoppel against the United States arose from the fact that the administrative officers of the government before the discovery of the fraud or error as to the existence of the lake had treated the area meandered as subjected to the riparian rights of the abutting owners under the state law and consequently not subject to be disposed of by the United States, in substance but disregards the right to correct such error conclusively recognized as existing in the administrative officers of the Land Department by the decisions which we have previously cited. d. The contention that power did not exist on the discovery of a mistake to survey and dispose of public land which had been excluded from a survey by the drawing of a meander line on the mistaken assumption of the existence of a body of water, because of the five years' limitation on the right of the United States to vacate or annul a patent (Act of March 3, 1891, 26 Stat. 1095), again but disputes the settled doctrine as to the existence of such power and besides rests upon the unsound assumption that the correction of such a mistake is an attempt to vacate or annul the patent. When rightly considered we think, as pointed out by the United States in argument, the ruling in United States v. Chandler-Dunbar Co., 209 U. S. 447, 28 Sup. Ct. 579, 52 L. Ed. 881, instead of sustaining, is in conflict with the proposition. Finally, the suggestion that as the defendant holding under the state acquired its rights before the mistake was discovered in reliance upon the actions and representations of the officers of the United States as to the existence of riparian rights in accordance with the state law as the result of the meander line, the United States should not be permitted to correct the mistake committed as to the meander line and thus protect its title, but in a different form restates the argument which we have already disposed of. Besides if for the sake of the argument we assume the existence of the equitable considerations insisted upon, it is manifest that the prayer for their enforcement is in the nature of things beyond the sphere of judicial authority however much relief on the subject may be appropriately sought from the legislative department of the government. There being then no error, it follows that the decree below must be and it is Affirmed.

246.US.242

Mere incorporation and organization under the general laws of Ohio (Gen. Code, 1910, §§ 10128-10134,) with power to construct and operate a hydro-electric power system at places designated in the certificate and to take water rights and riparian property for that purpose, does not imply a contract between the State and the company that the supply of water available shall not be diminished. Hence, a subsequent appropriation of the water by a city, acting under state authority, which involves no taking of property acquired by the company by purchase or condemnation under its charter, does not operate to impair the obligation of the charter. Even if such a contract could be implied, an act of the legislature expressly authorizing such appropriatiah by the city should be treated as an exercise of the State's power to amend the company's charter, reserved by Art. XIII, § 2, of the Ohio constitution, and as revoking or modifying the contract by subordinating the company's right to the right of the city. A hydro-electric company, organized under the general laws of Ohio with power of condemnation, adopted, through its board of directors, a plan of development involving the acquisition of the waters of a stream, with riparian land, and began certain condemnation pro. ceedings, but never commenced construction work, and acquired none of the land until after the legislature had authorized a city to appropriate the water and the city, under an ordinance, had made the appropriation and practically constructed its works for using it. Held, that whatever preference the company may have gained under the general laws of the State, as against rival corporations and municipalities, its right of appropriation, no property having been acquired under it, was subject to the State's reserved power exerted by the act of the legislature, and that the appropriation for the city was not an unconstitutional taking of the company's property. A state statute held not to violate Art. I, § 10, of the Constitution, or the Fourteenth Amendment, in authorizing a city to determine without hearing the necessity and extent of an appropriation of private property for its public purposes. An ordinance for the creation of a waterworks system and supply, adopted by the city council of Akron, to take effect September 10, 1912, pursuant to Ohio Gen. Code, 1910, §§ 3677-3697, was not repealed by the constitution adopted September 3, 1912, providing for a referendum in such cases, Art. XVIII, § 5, since the constitution did not become effective until November 15, 1912, when the ordinance was a valid, existing law, and the fact that no action may have been taken under the ordinance is immaterial. Where there is no direct taking under the power of eminent domain, a riparian owner complaining of the act of a city in damming and diverting a stream for a municipal water supply will be remitted to his action at law for damages, unless the injury is clear and exceptional circumstances arepresent warranting resort to equity. General allegations of fraud and insolvency held not to supply the absence of facts entitling plaintiff to equitable relief. Affirmed.

Akron, Ohio, lies on Little Cuyahoga river a short distance above its confluence with the Big Cuyahoga. In May, 1911, the Legislature of Ohio granted to the city, by special act 'the right to divert and use forever' for the purposes of its water supply 'the Tuscarawas river, the Big Cuyahoga and Little Cuyahoga rivers and the tributaries thereto, now wholly or partly owned or controlled by the State.'1 The city already possessed, under the general laws of Ohio, power to appropriate for this purpose, by condemnation proceedings, the property of any private corporation.2 Acting specifically in exercise of the power conferred by the special act and of every other power thereunto enabling, the city, by resolution of its council, passed May 27, 1912, declared its intention to appropriate all the waters, above a point fixed, of the Cuyahoga river and tributaries; and by an ordinance, passed August 26, 1912, it appropriated the same, directed its solicitor to apply to the courts to assess the compensation to be paid, and provided for the payment of 'the costs and expenses of said appropriation' out of an issue of bonds theretofore authorized. The city then constructed a dam and reservoir at the place specified and announced its intention of diverting the water before or by August 1, 1915. On July 24, 1915, John H. Sears, a citizen of New York, filed in the Federal District Court for the Northern District of Ohio this suit, praying that the further construction of dam and reservoir and the diversion of the water of the river be enjoined, and alleged, in substance, the following facts: The Cuyahoga River Power Company, a hydro-electric corporation was organized under the general laws of Ohio,3 in 1908. The character of the company's enterprise is described in Cuyahoga River Power Co. v. Northern Realty Co., 244 U. S. 300, 37 Sup. Ct. 643, 61 L. Ed. 1153; and its possible rights were considered in Cuyahoga River Power Co. v. Akron, 240 U. S. 462, 36 Sup. Ct. 402, 60 L. Ed. 743. On July 15, 1915, the company delivered to him as trustee a deed of trust of all its property to secure an issue of $150,000 of bonds. The property rights or interests which it is alleged the city was about to appropriate and for which it had not paid and proposed not to pay, arose from these transactions of the company: It caused to be made and had, on or about June 3, 1908, adopted by resolution of its board of directors, surveys, maps and plans known as the 'Roberts-Abbot Plan.' Later it caused to be made and, about April 23, 1909, adopted by resolution of its board of directors, supplemental surveys, maps and a plan, known as the 'Von Schon Plan,' together with description of the several parcels of land required for carrying it out. The first plan provided for development, on the Big Cuyahoga, above the confluence of the Big and Little Cuyahoga rivers, within the limits of the location and plan of development set forth in its certificate of incorporation; and the papers also described the various parcels of land which the company would require for the purpose. The supplemental plan called for the extensive development including most of the rivers of northeastern Ohio, and provided, among other things, for a dam on the Big Cuyahoga above that of the city. It was confessedly beyond the powers conferred by the original certificate of incorporation. That certificate was not amended to include the necessary additional powers until after the passage of the Act of 1911. No public record or filing was made of either of those plans; and the law of Ohio makes no provision for such filing or for any record except that involved in condemnation proceedings. No condemnation proceeding was taken except that instituted June 5, 1908, under the original plan. It does nor appear that any property was acquired under these proceedings. Shortly before the commencement of this suit, the company acquired, at a point some distance below the city's dam, a small parcel of land, which however, extended only to high-water mark. It also acquired at another place below defendant's dam from another riparian owner, a contract for a portion of the river bed and the right to regulate, as to this land, the flow of the river; and acquired options for certain other properties. But the company has not commenced anywhere on the river any part of the proposed water-power development. The right or property which the bill seeks to protect is mainly, if not wholly, the alleged right to construct and operate in places designated in the certificate of incorporation, the power system described, without danger of impairment by any act of defendants. The bill alleges that the company 'became possessed of and vested with the right to exercise the State's power of eminent domain in order to appropriate and acquire for its own corporate purposes such private property as it deemed necessary for carrying out and performing the matters and things set forth in its said articles of incorporation'; and that the city's proposed action would impair contract rights of the company and also take its property without compensation in violation of the Federal Constitution. The city moved to dismiss the bill, contending that it did not appear from plaintiff's allegations that any contract rights of the company had been impaired or that the city had taken or used, or threatened or proposed to take or use any property of the company; that, on the contrary, the bill showed that the company had no property right which the city's action taken or proposed would involve appropriating; and that, for this reason, it had refrained from including in the condemnation proceedings instituted by it, any alleged property rights of the company, and had not given to it any notice of the city's takings. The motion to dismiss the bill was sustained by the District Court, on the ground that the company did not possess any such contract right or property as the city was alleged to have impaired or invaded or threatened to appropriate; and also on the ground that the bill did not set forth facts entitling plaintiff to seek relief in equity and did disclose laches. A decree was entered dismissing the bill; and a direct appeal to this court was taken under section 238 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1157 [Comp. St. 1916, § 1215]). First. As to the alleged impairment of contract: Plaintiff contends that the incorporation of the company in 1908 under the general laws constituted a contract by which the State granted it the right to construct and operate a power system in the places designated in the certificate and the right to take property for that purpose and to have the water flow past that property uninterrupted and undiminished; and that the ordinance of 1912 is a law which impairs that contract in violation of article 1, § 10, of the Federal Constitution. It is clear that the contract right created by incorporation alone was not illegally impaired by the ordinance, because there was no contract by the State with reference to the water rights. Incorporation did not imply an agreement that the quantity of water available for development by the company would not be diminished. St. Anthony Falls Water Power Co. v. St. Paul Water Commissioners, 168 U. S. 349, 371, 18 Sup. Ct. 157, 42 L. Ed. 497. The so-called charter simply conferred upon the company the power to take lands necessary for and to construct thereon, the dams, locks, and other parts of its plant.4 If by purchase or by right of eminent domain under the charter powers, the company becomes the owner of riparian lands, it acquires the riparian rights of former owners; or it may otherwise acquire from the owners specific rights in the use and flow of the water. But these would be property acquired under the charter, not contract rights expressed or implied in the grant of the charter. Furthermore, the contract inhering in the charter (as distinguished from property acquired under the charter) was subject to the State's reserved power to amend or repeal, as provided in article 13, § 2, of the Ohio Constitution. Ramapo Water Co. v. City of New York, 236 U. S. 579, 583, 35 Sup. Ct. 442, 59 L. Ed. 731. The Act of 1911, under which the city proceeded, may be treated as an amendment of the company's charter making its rights subject to those of the city, if that if necessary to justify the proceeding of the city, which the act authorized. See State v. City of Hamilton, 47 Ohio St. 52, 74, 23 N. E. 935; Hamilton Gas Light Co. v. Hamilton City, 146 U. S. 258, 13 Sup. Ct. 90, 36 L. Ed. 963; Berea College v. Kentucky, 211 U. S. 45, 57, 29 Sup. Ct. 33, 53 L. Ed. 81. Second. As to the alleged property rights: It follows from what has been said above, that at least until something more had occurred than incorporation, the city was free as against the Cuyahoga Company to appropriate any of the land or any of the water rights which might otherwise have come under the development described in its certificate of incorporation. Plaintiff contends, however, that it became vested with an indefeasible property right to proceed with its development (a) when by resolution the board of directors adopted the plan or (b) when condemnation proceedings were begun. Whether the adoption of a plan by the company would, under the general laws of Ohio, have vested in it such a preferential right as against rival power companies or other municipalities, we have no occasion to consider. For it is clear that Ohio retained the power as against one of its creatures, to revoke any such right to appropriate property until it had been acted upon by acquiring the property authorized to be taken. Adirondack Railway v. New York State, 176 U. S. 335, 20 Sup. Ct. 460, 44 L. Ed. 492; and the Act of 1911 and the ordinance were both passed before the company had acquired any property. Nor are we called upon to determine to what extent the commencement of the acquisition of needed property in preparation for the power development, or even actual commencement of construction would have vested in the company the right to complete the development. For the property alleged to be now owned by the company was not acquired by it until after the city's development had been practically completed; and no work of construction has ever been commenced by the company. Third. As to the alleged riparian rights: These consist of (a) the small parcel of land extending to high-water mark, which was acquired nearly three years after the ordinance of August 26, 1912 was passed; and (b) a contract with one Boettler for a portion of the river bed with a right to regulate flowage; and (c) certain options for other lands and rights, all of which also seem to have been acquired after the city's water development was practically completed. The city insists that the bill fails to show that it has taken or proposes to take or will injure any of these, and also that it does not appear that the company has, in respect to any of these properties, any riparian right which conceivably could be taken or injured. This contention, which involves matters of state law, may possibly raise some questions presented to the state courts in Boettler v. Akron, 93 Ohio St. 490, 113 N. E. 1069. But whether it is in all respects sound, we need not determine; for it is clear that, upon the facts alleged in the bill, the rights of the plaintiff in this property and the injury thereto, if any, are not such as to entitle him to relief in equity. Fourth. Plaintiff contends that the ordinance is void because the general statute which authorized the appropriation violates both article 1, § 10, of the Federal Constitution and the Fourteenth Amendment, in that it authorizes the municipality to determine the necessity for the taking of private property without the owners having an opportunity to be heard as to such necessity; that in fact no necessity existed for any taking which would interfere with the company's project; since the city might have taken water from the Little Cuyahoga or the Tuscarawas rivers; and furthermore that it has taken ten times as much water as it can legitimately use. It is well settled that while the question whether the purpose of a taking is a public one is judicial, Hairson v. Danville & Western Railway, 208 U. S. 598, 28 Sup. Ct. 331, 52 L. Ed. 637, 13 Ann. Cas. 1008, the necessity and the proper extent of a taking is a legislative question. Shoemaker v. United States, 147 U. S. 282, 298, 13 Sup. Ct. 361, 37 L. Ed. 170; United States v. Gettysburg Electric Ry. Co., 160 U. S. 668, 685, 16 Sup. Ct. 427, 40 L. Ed. 576; United States v. Chandler-Dunbar Co., 229 U. S. 53, 65, 33 Sup. Ct. 667, 57 L. Ed. 1063. The Legislature may refer such issues, if controverted, to the court for decision. P. C. C. & St. L. Ry. Co. v. City of Greenville, 69 Ohio St. 487, 69 N. E. 976. Fifth. As a further ground for relief, plaintiff asserts that the whole water development of the city has been carried on without authority in law. The contention is, that the general statute on which the ordinance rests is inconsistent with the new constitution, adopted September 3, 1912; that though the ordinance was passed before the new constitution took effect, it was not acted upon until after; and that therefore it was not within the saving clause and was repealed. Inconsistency is asserted for the reason that under the statute the city council possessed the full power to determine whether the city should undertake the water development, whereas the new constitution provided a right to a referendum on the subject, upon filing, within thirty days from the passage of the ordinance, a petition 'signed by ten per centum of the electors of the municipality.' Article 18, § 5. The bill alleges that the ordinance did not take effect until September 10, 1912; but the new constitution did not become effective until November 15, 1912. The ordinance was therefore, a valid existing law when the new constitution became operative and was not repealed by it. The fact that no action may have been taken under the ordinance is immaterial. We need not, therefore, inquire whether plaintiff is in a position to avail himself of the alleged inconsistency. Sixth. The city insists that it has not appropriated and does not intend to appropriate any property of plaintiff, and that, as to plaintiff, it is not exercising the power of eminent domain. If, as plaintiff contends, the city's whole water development is unauthorized, plaintiff clearly is not entitled to equitable relief. For then, the city's act in damming and diverting water would be that of an ordinary wrongdoer, for which riparian proprietors above or below, who are injured, would have only the usual remedy for a tort by an action at law for damages, unless exceptional circumstances render resort to a court of equity appropriate. Parker v. Winnipiseogee Lake Cotton & Woolen Co., 2 Black 545, 17 L. Ed. 333; Osborne v. Missouri Pacific Railway, 147 U. S. 248, 259, 13 Sup. Ct. 299, 37 L. Ed. 155. No such circumstance exist here. The bill shows clearly that, a least for the present, the company cannot, by any conceivable diversion, be injured in any riparian properties and rights it may have; for it has not even commenced the construction of its projected power system, nor otherwise utilized the small parcel which it acquired shortly before this suit was instituted. Even if the company had riparian rights and should hereafter proceed with its development it might prove that defendant's diversion was of such a character that it would not substantially affect the company's use, McElroy v. Goble, 6 Ohio St. 187; or the circumstances might conceivably be such that the city would be held not to have exceeded its legal rights as riparian owner. City of Canton v. Shock, 66 Ohio St. 19, 63 N. E. 600, 58 L. R. A. 637, 90 Am. St. Rep. 557; Moody & Thomas Milling Co. v. City of Akron, 93 Ohio St. 484, 113 N. E. 835; Cleveland-Akron Bag Co. v. City of Akron, 93 Ohio St. 486, 113 N. E. 835. The absence of facts entitling plaintiff to equitable relief is not supplied by such general allegations of fraud and insolvency as the plaintiff has made. Decree affirmed. Mr. Justice DAY and Mr. Justice CLARKE took no part in the consideration or decision of this case.

245.US.198

The Baldwin patent, original No. 821,580, reissue No. 13,542, for improvements in acetylene gas generating lamps, held valid and infringed as to claim 4. The patent relates to an acetylene gas generating lamp, with an upper reservoir for water and a lower receptacle for calcium carbide, connected by a tube, with a rod extending through the tube and subject to manipulation from above. The inventive features involved lie in securing a proper flow of the water through the tube and access for it to the unslaked carbide, the first, by adopting a comparatively large tube with a size of rod suitably restricting its capacity; the second, by manipulating the rod when necessary to break up slaked carbide at the mouth of the tube in the lower receptacle. Held, upon the evidence, that the invention is meritorious and entitled to invoke the doctrine of equivalents. Paper Bag Patent Case, 210 U. S. 405. The original patent having figured the tube as extending to and embedded in the carbide, and described the rod as a means, when manipulated, of breaking up slaked carbide at the lower mouth of the tube, to permit the water to percolate to the unslaked carbide, held, that an amendment in the reissue explicitly describing the tube as so extended and embedded did not enlarge the patent. In the original patent specification, the rod or "stirrer" was described as bent at the lower extremity, while the specification of the reissue declared, "it is obvious that the stirrer need not always be formed with a bent end." Held, that the reissue did not enlarge the original patent; the function of the rod as a "stirrer," clearly described in the original, is the same whether its end be bent or straight; the two forms are but interchangeable equivalents. In the original patent proceedings the applicant was required to surrender a claim describing the rod as "extending from a point outside the lamp through the tube into the carbide receptacle." Held, on the evidence, that this was not a surrender of the straight form of stirring rod. In view of the facts of the case, held, that one of the petitioners, which entered the field when the patent was unquestioned and after the patentee by his efforts had created an extensive market, acquired in equity no intervening rights against the patent as subsequently reissued. 228 Fed. Rep. 895, affirmed.

Suit for infringement of a patent embraced in letters patent No. 821,580 and a reissue thereof, No. 13,542. The suit was originally brought by Frederick F. Baldwin, patentee. John Simmons Company, licensee, having the exclusive right to manufacture and sell the patented device, subsequently intervened and became complainant. The patents are for a lamp designed to generate and burn acetylene or similar gas 'intended for use,' to quote the description of the patents, 'and adapted to use as a bicycle, automobile, yacht, or miner's lamp, or for any other analogous purpose, it being necessary only to change its form or dimensions to adapt it to any one of the purposes mentioned.' Stress in this case, however, is put upon the use of the asserted invention as a miner's lamp, such use conspicuously displaying its commercial utility. Answer was filed by the Justrite Manufacturing Company, who was made a party defendant to the suit as manufacturer of the asserted infringing lamp, and by stipulation its answer was considered the answer of the Abercrombie & Fitch Company. It denied invention with great detail, set up anticipating patents, denied its utility, attacked the validity of the reissue on the ground that the first and fourth claims of the original patent were held invalid by the United States Circuit Court of Appeals for the Seventh Circuit (199 Fed. 133, 117 C. C. A. 615), and for the further reason that the application for the reissue was not made until seven years after the original letters patent were issued and rights had accrued in the meantime to defendants (petitioners here) and to others. Infringement was denied. A decree was passed sustaining the validity of the original patent and of the reissue, the originality of the invention and its utility, and adjudging defendants (petitioners) had infringed claim 4 of the reissue, that plaintiffs recover the damages they had incurred by reason of the infringement and the profits defendants had received, an accounting being ordered for this purpose. A perpetual injunction was also adjudged against further infringements. (D. C.) 227 Fed. 455. The decree was affirmed in all respects by the Circuit Court of Appeals (228 Fed. 895, 143 C. C. A. 293) and subsequently this certiorari was granted (239 U. S. 649, 36 Sup. Ct. 284, 60 L. Ed. 485). The plaintiffs (we shall so designate respondents) struggled through some years and some litigation to the success of the decrees in the pending case. In a suit brought in the District Court for the Southern District of Illinois a device like that of the defendants herein was held to be an infringement of certain claims of the original patent. The holding was reversed by the Circuit Court of Appeals for the Seventh Circuit. Bleser v. Baldwin, 190 Fed. 133, 117 C. C. A. 615. Subsequently, the reissue having been granted, suit was brought in the Western District of Pennsylvania against an asserted infringer. Unfair competition was also alleged, and, holding the latter to exist, the court granted a preliminary injunction. (D. C.) 210 Fed. 560. Upon final hearing that holding was repeated, and infringement of a claim of the reissue patent decreed. (D. C.) 215 Fed. 735. The decree was reversed by the Circuit Court of Appeals (Third Circuit) on the ground that the claim of the reissue patent found to have been infringed was broader than a corresponding claim of the original letters patent and therefore void. The holding of the District Court as to unfair competition was sustained. 219 Fed. 735, 135 C. C. A. 433. Aided by the reasoning in the opinions of those cases and the discussion of counsel, we pass to the consideration of the propositions in controversy. First, as to the original patent. Its contribution to the world's instrumentalities was, as we have said, an acetylene lamp and was represented by the following figure, designated as Figure 1: It will be observed that the device consists of a receptacle divided into two compartments, an upper one for water and a lower one designed to serve as a gas-generating chamber, adapted to contain a receptacle for calcium carbide, which is attached to and forms the detachable bottom. There are means of introducing water into the reservoir and thence to the carbide and means of conducting the gas to the burner. The device is a means of using the gas (acetylene) formed by the decomposition of water with calcium carbide and necessarily must bring them into contact in an effectual way and use the gas generated in a controlled flow. A tube (L) hence leads from the water-reservoir into the carbide receptacle and forms a duct which introduces the water into the body of the carbide. Various means, the specifications recite, have been employed to regulate or control the flow of water to the carbide, which were found objectionable or not adequate. That the method which be has invented 'for securing the proper feed under all circumstances' without 'objectionable features is to make the bore of the duct of comparatively large size and then restrict the duct by means of a wire or rod preferably centrally located therein to leave a channel of the proper size.' 'This arrangement is simple; but in a long experience it has been found to be entirely successful. It is possible to secure the correct drop-by-drop feed with a duct of considerable size, since the friction of the water on the large area of the tube-wall and wire reduces its flow. This retarding friction may be regulated by varying the size of wire used. The duct does not become choked, since if foreign particles are deposited therein the water can take a zigzag course around it without the supply being appreciably affected. If it is at any time necessary to clean the tube, the wire is simply reciprocated and rotated a few times from the outside of the lamp without disturbing the position of other parts. This nice regulation of the flow enables me to entirely dispense with the trouble-some adjustment of the valve. * * * In some cases, however, there is employed in connection with the means for introducing water into the mass of carbid a device in the nature of a stirrer, which on proper manipulation may be used to break up the mass of carbid surrounding the outlet of the water duct and which by having become slaked and caked by the action of water prevents the proper percolation of the latter to the unslaked carbid in the recentacle G. Fig. 1. As such device I employ a stem rod N, which extends down through the tube L and is bent at substantially right angles to form an arm N'.' There is also a figure attached to the patent which shows a valve upon the constricting rod, and it is said: 'This rod may form a prolongation of the valve stem, * * * or in case no valve is used may extend from the top of the lamp down through the water-reservior,' and this is illustrated by figures. 'As calcium carbid possesses strongly absorptive properties, the introduction of water through the tube L will result in the gradual slaking of the material about its outlet; but the lime thus produced becomes gradually less permeable to the water, so that an insufficient quantity of gas is generated to maintain the proper flame. When this becomes noticeable, the rod N is turned, so as to cause the arm N' to break up to a greater or less extent the mass of lime, and in practice I have found that under ordinary conditions this is amply sufficient to insure a substantially uniform generation of gas until all of the carbid in the receptacle G is exhausted.' There are some further descriptive details not necessary to be repeated, and this was said: 'The specific construction of the various parts of my lamp may be, as will be seen from a consideration of the nature of the improvements, very greatly varied without departing from the invention.' The claims of the patent which are pertinent to our inquiry are as follows: '1. In a lamp of the kind described, the combination with a water-reservoir, and a receptacle for calcium carbid, of a tube extending from the former a considerable distance into the latter so as to be embedded in the mass of carbid contained in said receptacle, and a rod or stem extending through said tube into the carbid-receptacle and having its end formed as a stirrer to break up the slaked carbid around the outlet of the water-tube, as set forth. '2. In a lamp of the kind described, the combination with a water-reservoir, and a receptacle for calcium carbid, of a tube extending from the former into the latter so as to be embedded in the mass of carbid contained in the receptacle, a rod extending from a point outside of the lamp through the tube and into the carbid-chamber and having its end bent to form a stirrer for breaking up the slaked carbid around the outlet of the water-tube, as set forth. * * * '4. In a lamp of the kind described, the combination with a water-reservoir, and a receptacle for calcium carbid, of a water-tube extending from the former a considerable distance into the latter and adapted to be embedded in the mass of carbid in the receptacle, and a rod extending through the water-tube, and constituting a stirrer to break up slaked carbid around the outlet of the water tube, the rod operating to restrict and thus control the flow of water to the carbid, as set forth.' The words in italics are the addition of the reissue. Whether the lamp exhibits invention, when both patents are considered, we shall discuss later. Our attention is more immediately challenged by the stress put upon other defenses, especially upon the contention that the patent is confined to a special form and, so confined, is not infringed, and that the extension of the patent by the reissue is void. The controversy is therefore brought to a consideration of the original patent as added to or developed by the reissue. And their comparison centers in the water-feeding duct or tube and its restriction by means of a wire or rod and the shape and use of the rod to pierce or stir the carbide. In the original patent, as we have seen, it was said that the invented method for securing a proper feed (flow of the water to the carbide) without certain specific objectionable features was 'to make the bore of the duct of comparatively large size and then restrict the duct by means of a wire or rod preferably centrally located therein to leave a channel of the proper size.' In the reissue, after the words 'comparatively large size,' it was added, 'extend the tube which forms the duct downward so that its end will be always embedded in the carbid.' In other words, the tube is explicitly described as extending to and its end embedded in the carbide, and this, it is contended, was an enlargement of the original patent. The contention is untenable if there was in the original patent an implication of such length and termination of the tube, and we think there was. To conduct water to the carbide it necessarily had to extend to the carbide receptacle and as necessarily had to penetrate the carbide if the rod located in it, whether straight or bent, was to act 'in the nature of a stirrer, which on proper manipulation' might 'be used to break up the mass of carbid surrounding the outlet of the water duct,' which is the purpose that the patent ascribes to it. And Fig. 1 shows such ending and embedding. It would be impossible otherwise to perform its function or secure the 'proper percolation' of the water 'to the unslaked carbid in the receptacle G, Fig. 1.' But there was another addition in the reissue which, it is contended, enlarges the invention and assigns a new shape and function to the stirrer of the original. In the latter the rod is described as extending 'from the top of the lamp down through the water-reservoir, as shown in Fig. 3.' To this the reissue adds: 'It will be understood from what has been said that the function of the stirrer is to break up, pierce or disturb the particles of the slaked carbid mass which, when the lamp is in use, forms at the delivery end of the tube. This slaked carbid mass tends to solidify and either shuts the water off altogether or restricts it so that less water is delivered from the water tube than the lamp demands for efficient operation. As it is sufficient, under the certain circumstances, to insure the requisite water flow by so manipulating the stirrer, as to pierce, break up, or loosen the slaked carbid mass immediately around or at the mouth of the tube, it is obvious that the stirrer need not always be formed with a bent end or so as to extend radially from the mouth of the tube.' There is nothing in this but what was clearly implied in the original, except the shape of the stirrer. In the original it is described and represented as bent. In the reissue it is stated to be obvious that the stirrer need not always be bent 'or extend radially from the mouth of the tube.' We are unable to assign to this the extent of alteration that counsel do, nor do we think it necessary to rehearse the details of their argument. We have given it attention and the cases it cites, especially the decision and reasoning of the Circuit Court of Appeals of the Third Circuit in Grier Bros. Co. v. Baldwin et al., 219 Fed. 735, 135 C. C. A. 433, but we are constrained to a different conclusion. Indeed, we are of opinion that the original patent did not need the exposition of the reissue. It exhibited an invention of merit, certainly one entitled to invoke the doctrine of equivalents. Paper Bag Patent Case, 210 U. S. 405, 28 Sup. Ct. 748, 52 L. Ed. 1122. Baldwin, the patentee, complied with the statute (section 4888, R. S. [Comp. St. 1916, § 9432]) by explaining the principle of his invention and the mode of putting it to practical use; there was a clear exposition of the principle and the instruments of its use were defined and their purpose and manner of operation. It left nothing in either for further experiment or contrivance. As we have said, the invention was a means of using the gas formed by the decomposition of water with calcium carbide, and necessarily the water and carbide must be brought into contact and under a controlled flow; hence the tube and its centrally located rod extending downward to the carbide. It was foreseen and stated that the carbide might become torpid or slaked by the action of the water and might have to be disturbed or dispersed in order that there might be percolation of water to unslaked carbide, and this was provided to be performed by a simple manipulation of the rod. Whether the rod was bent or made straight was unimportant. In either form it removed the slake and secured the continuous operation of the water and carbide and through them the formation of the gas and its illuminating purpose. One or the other might be better, according to the extent of the dispersion required, and one naturally suggested the other. It is, however, contended that plaintiffs were required to give up and did give up in the Patent Office a claim which had the extent which we have indicated. A claim, numbered in the application as 6, described the rod as: 'A rod extending from a point outside the lamp through the tube into the carbide receptacle.' Counsel say, 'It is to be particularly noted' that, while other claims 'mentioned the stirring function of the rod, claim 6 omitted this feature,' but that the solicitor who drew the claim 'unquestionably had in mind the straight form of rod construction without any stirrer at the end, for the claim specifies, 'through the tube into the carbid receptacle." It is hence argued that when the claim was given up the straight form of construction was given up, and, having been given up to secure the patent, it cannot be insisted upon to prevent its use by others. But counsel is in error as to the extent of the surrender. The straight construction was not given up, but such construction through the tube into the carbide receptacle, and this was in deference, and only in deference, to other patents that showed such use, that is, showed a penetration into the receptacle, but not its duct ending and embedded in the carbide. We do not think the case calls for extended discussion. It is best considered in broad outline. The scope and merit of the patents are of instant and assured impression, and to the attempt to defeat or limit their invention by the state of the prior art we adduce the discussion and reasoning of the opinions of the lower courts, which we approve. The denial of infringement is also easily disposed of. Indeed, it has been in effect disposed of. It is based on the contention that the stirrer is an essential of plaintiff's lamp and that a stirrer is absent from defendants' lamp, which is in all other particulars, as far as this case is concerned, similar to the plaintiff's lamp. To the contention of defendants, therefore, we cannot assent. There is a stirrer in both, and its form, as we have seen, is not of the essence of the invention. There is nothing occult in the act of stirring; it is causing movement or disturbance, and this may be performed by a straight rod as by a bent one. There may be difference in their dispersing power, but no difference in function, and one or the other would be instantly selected according to the need, under the clear description of the patent. This ready adaptation of the form of stirrer to the work to be performed Baldwin demonstrated even before the grant of the patent. Early in 1906 he put upon the market a lamp with a straight rod, 'which, among other things,' as the District Court has said, 'has characterized the commercial lamp ever since.' To the contention that the Justrite Company, the manufacturing defendant, acquired rights before the reissue, we again may oppose the reasoning and conclusion of District Judge Mayer and their affirmance by the Circuit Court of Appeals. The learned judge said: 'It will be remembered that this company entered the field with its lamp at a time when the validity and scope of the Baldwin patent were still unquestioned and when after some five years of capable effort, the Baldwin lamp had created an extensive market. The Justrite Company took its chances, and, in view of the necessities of the situation, it is relieved of all accountability for the period prior to the granting of the reissue patent; but when the reissue statute was granted the Justrite Company again took its chances. 'By the reissuance of the patent, the patentee loses all in the way of an accounting under the original patent, but the dominant purpose of the reissue statute was to save to the inventor the future remaining after the reissue. 'I see nothing in the course of plaintiffs or defendants which would allow a court of equity to conclude that defendants are to be relieved because of intervening rights.' Decree affirmed.

244.US.66

Plaintiff's intestate, a brakeman, was thrown from a train carrying interstate commerce, and killed, as a result of couplers coming open while the train was in motion. Held, that, in view of the Safety Appliance Act, negligence might be inferred from the mere opening of the couplers. A father who by the state law is entitled to the earnings of his son during minority may recover damages for the latter's death upon a cause of action under the Federal Employers' Liability Act. 130 Minnesota, 33, affirmed.

Basing her cause of action upon the Federal Employers' Liability Act, the defendant in error, as administratrix of the estate of Merlin E. Gotschall, deceased, sued to recover from the railroad company, plaintiff in error, damages resulting from his death, alleged to have been occasioned by the negligence of the company while he was in its employ, engaged in interstate commerce. On this writ of error a reversal is sought of the action of the court below in affirming a judgment entered by the trial court on the verdict of a jury in favor of the plaintiff. The evidence tended to show the following facts: Gotschall, a minor, twenty years old, at the time in question was head brakeman on an extra freight train running from Albert Lea, Minnesota, to Minneapolis, and transporting interstate commerce merchandise. As the train left Jordan, an intermediate station, Gotschall boarded a car toward the rear end and was proceeding along the tops of the cars toward the locomotive when the train separated because of the opening of a coupler on one of the cars, resulting in an automatic setting of the emergency brakes and a sudden jerk, which threw Gotschall off the train and under the wheels. The jury, under an instruction of the court, was permitted to infer negligence on the part of the company from the fact that the coupler failed to perform its function, there being no other proof of negligence. It is insisted this was error, since, as there was no other evidence of negligence on the part of the company, the instruction of the court was erroneous as, from whatever point of view looked at, it was but an application of the principle designated as res ipsa loquitur, a doctrine the unsoundness of which, it is said, plainly results from the decisions in Patton v. Texas & P. R. Co. 179 U. S. 658, 45 L. ed. 361, 21 Sup. Ct. Rep. 275, and Looney v. Metropolitan R. Co. 200 U. S. 480, 50 L. ed. 564, 26 Sup. Ct. Rep. 303, 19 Am. Neg. Rep. 627. We think the contention is without merit because, conceding in the fullest measure the correctness of the ruling announced in the cases relied upon to the effect that negligence may not be inferred from the mere happening of an accident except under the most exceptional circumstances, we are of opinion such principle is here not controlling in view of the positive duty imposed by the statute upon the railroad to furnish safe appliances for the coupling of cars. St. Louis, I. M. & S. R. Co. v. Taylor, 210 U. S. 281, 294, 295, 52 L. ed. 1061, 1067, 1068, 28 Sup. Ct. Rep. 616, 21 Am. Neg. Rep. 464; Chicago, B. & Q. R. Co. v. United States, 220 U. S. 559, 575, 55 L. ed. 582, 588, 31 Sup. Ct. Rep. 612; Delk v. St. Louis & S. F. R. Co. 220 U. S. 580, 586, 55 L. ed. 590, 595, 31 Sup. Ct. Rep. 617; Texas & P. R. Co. v. Rigsby, 241 U. S. 33, 43, 60 L. ed. 874, 878, 36 Sup. Ct. Rep. 482. Again it is insisted that error was committed in submitting the case to the jury because there was no evidence of pecuniary loss resulting to Gotschall's father, on whose behalf the suit was brought. But this disregards the undisputed fact that the deceased was a minor, and as, under the Minnesota law, the father was entitled to the earnings of his son during minority, the question is one not of right to recover, but only of the amount of damages which it was proper to award. Affirmed.

245.US.352

As decided by this court in Washington v. Oregon, 211 U. S. 127; 214 U. S. 205; Sand Island, in the Columbia River, is part of the State of Oregon, the boundary between that State and Washington being the ship channel north of the Island. An alleged nuisance consisting of nets connected with buoys and heavily anchored to the bottom of the Columbia River between the line of extreme low tide and the channel, in Oregon,' is not subject to abatement by the District Court sitting in the Western District of Washington; assuming that concurrent jurisdiction "on the Columbia" is enjoyed by the State of Washington in virtue of the act organizing Washington Territory (c. 90, § 21, 10 Stat. 179) and the act admitting Oregon into the Union (c. 33, § 2, 11 Stat. 383), such jurisdiction does not reach the bed of the stream in Oregon. Plaintiff filed its bill in the Western District of Washington to abate a nuisance on the Columbia River, assuming bonafide and not without some reason that the locus in quo was within that State and District, but later, before taking proofs and before final hearing, moved to dismiss without prejudice because of an intervening decision of this court which fixed the locus in Oregon. The motion having been refused and the case retained upon the ground that Washington had concurrent jurisdiction over the River, held, (1) that, in face of the doubt concerning the power to abate the nuisance as prayed, the District Court erred in refusing the motion, and (2) that the possibility of granting relief against the defendants in personam did not justify retaining the case, against the plaintiff's will. When a decree dismissing a bill is meant to be without prejudice, the better practice is to express it so. 219 Fed. Rep. 365, affirmed.

This is a suit brought by the appellee, the Columbia River Packers' Association, as lessee from the United States of fishing sites and riparian rights on Sand Island in the Columbia River, to compel the appellants to remove certain obstructions placed by them upon the bottom of the channel of the river in front of the plaintiff's premises, and to refrain from longer maintaining them there. Upon a bond being given a restraining order was issued on July 7, 1908; answers and a cross-bill were filed in the following August, and a demurrer to the cross-bill was overruled on October 21 of the same year. The suit had been brought in the Western District of Washington upon the belief that Sand Island was in Washington and subject to the jurisdiction that that State exercised in fact. But on November 16, 1908, it was decided by this Court that the boundary between Oregon and Washington was the ship channel north of Sand Island, and that Sand Island belonged to the former State. Washington v. Oregon, 211 U. S. 127, 29 Sup. Ct. 47, 53 L. Ed. 118; Id., 214 U. S. 205, 29 Sup. Ct. 631, 53 L. Ed. 969. Thereupon, in June, 1909, the plaintiff filed a petition that the suit be dismissed without prejudice for want of jurisdiction, since it turned out that the land concerned was not within the district for which the Court sat. The District Court dismissed the petition and retained jurisdiction of the cause on the ground that by the Act of Congress of March 2, 1853, c. 90, § 21, 10 Stat. 172, 179, organizing the Territory of Washington, and by the Act of February 14, 1859, c. 33, § 2, 11 Stat. 383, admitting Oregon into the Union, concurrent jurisdiction on this part of the river was reserved to Washington, when it subsequently became a State. The plaintiff then filed a supplemental bill in which again it prayed that the suit might be dismissed without prejudice if the court had no jurisdiction; the case proceeded to the taking of evidence and final hearing, the temporary injunction was dissolved, an injunction was issued against the plaintiff's interfering with the defendants' appliances, and a final decree for damages caused by the temporary injunction was entered in favor of the defendants. The plaintiff appealed to the Circuit Court of Appeals, and that court, being of opinion that the bill should have been dismissed on the plaintiff's petition, reversed the decree and ordered the bill to be dismissed. 219 Fed. 365, 134 C. C. A. 461. The nuisance complained of consisted of set nets, each anchored by a stone weighing about three hundred pounds to which was attached a short cable which was clamped to a wire rope about twenty-five feet long, to which in its turn was attached a buoy of large timbers. The nets were placed between the line of extreme low tide and the channel of the river; they were alleged to interfere with the exercise of the plaintiffs' rights, and an abatement of the obstruction was prayed for in the bill. We agree with the Circuit Court of Appeals that, assuming for the purposes of decision that the State of Washington had concurrent jurisdiction 'on the Columbia,' in the words of the statute (Act 1859, c. 33, § 2), Nielsen v. Oregon, 212 U. S. 315, 319, 29 Sup. Ct. 383, 53 L. Ed. 528, the jurisdiction did not extend to the removal of such a nuisance as this. It did not reach the bed of the stream, and the officers of the State would have had no authority to intermeddle with the defendants' nets anchored to the bottom. See Wedding v. Meyler, 192 U. S. 573, 585, 24 Sup. Ct. 322, 48 L. Ed. 570, 66 L. R. A. 833. This was an important part of the relief that the plaintiff sought and when it found that it could not have it, it naturally endeavored to dismiss the bill. It ordinarily is the undisputed right of a plaintiff to dismiss a bill before the final hearing. Carrington v. Holly, 1 Dickens, 280. Cummins v. Bennett, 8 Paige, 79. Kempton v. Burgess, 136 Mass. 192. The discussions have been directed more to the question of costs. When a bill was filed under a mistake common to both parties and in other like cases the plaintiff was allowed to dismiss his bill without costs. Lister v. Leather, 1 DeG. & J. 361, 368 (1859). Broughton v. Lashmar, 5 My. & Cr. 136, 144 (1840). Here the decision of this Court put the plaintiff in an unexpected position. The question before the District Court was not whether the bill ought to be retained for a decree in personam if the plaintiff so desired, or even one of costs, but whether it should be retained against the plaintiff's will for a trial that could not, or at least very possibly might be held unable to, give it what it asked. Upon this point also we are of opinion that the Circuit Court of Appeals was right. Its decree of course meant that the bill was dismissed without prejudice, as prayed, but it is better that it should express the fact and with that modification it is affirmed. Decree affirmed.

246.US.304

The requirement that a certificate from the Circuit Court of Appeals shall contain a "proper statement of the facts on which the questions and propositions of law arise," (Rule 37) is not complied with by a statement of what is "alleged and denied" by the parties in their pleadings, supplemented by a statement that there was evidence tending to establish the facts as claimed by each party; nor should the questions be based upon an "assumed" statement of facts. Facts supplied by judicial notice may enable the court to answer questions from the Court of Appeals, where otherwise the insuciency of the certificate would necessitate its return to that court. A bill in the District Court for the Western District of Texas, besides showing diverse citizenship, alleged that certain personal property of the plaintiff had been forcibly taken from its possession in Mexico by unknown persons, was consigned to one of the defendants at El Paso, and was in a bonded warehouse there in the possession of another defendant, as Collector of Customs, who, unless restrained as prayed, would deliver it to the other defendants. Held, that the case, as thus stated, was within the jurisdiction of the District Court, and that the facts, not mentioned in the bill, that the property had been seized, condemned and sold for war purposes by the Constitutionalist forces in revolution in Mexico, acting under authority of General Carranza, whose government was later recognized by the United States, did not deprive the courts of jurisdiction to adjudicate upon the validity of the title thus acquired, though in exercising the jurisdiction the action of the Mexican authorities must necessarily be accepted as a rule of decision. Oetjen v. CentraZ Leather Co., ante, 297. The fact that property seized and sold by the authorities of a foreign government belonged to an American citizen, not residing in the foreign country at the time, does not empower a court of this country to reexamine and modify their action.

In this suit in equity, commenced in the United States District Court for the Western District of Texas, the plaintiff in that court claims to be the owner of and entitled to a large consignment of lead bullion held in bond by the collector of customs at El Paso, Texas. An injunction was granted restraining the collector until further order from delivering the bullion to either of the other defendants. Barlow, one of the defendants in the District Court, claims to be the owner of the property by purchase from the defendant Ricaud, who it is claimed purchased it from General Pereyra, who in the year 1913 was the commander of a brigade of the Constitutionalist army of Mexico, of which Venustiano Carranza was then First Chief. It is not seriously disputed that General Pereyra, in his capacity as a commanding officer, in September, 1913, demanded this bullion from the Penoles Mining Company, a Mexican corporation doing business at Bermejillo, Mexico; that when it was delivered to him he gave a receipt which contains a promise to pay for it 'on the triumph of the revolution or the establishment of a legal government'; that Pereyra sold the bullion to defendant Ricaud, who sold it to the defendant Barlow; that the proceeds of the sale were devoted to the purchase of arms, ammunition food and clothing for Peryra's troops, and that Pereyra in the transaction represented and acted for the government of General Carranza, which has since been recognized by the United States government as the de jure government of Mexico. The plaintiff, appellee here, claims to have purchased the bullion from the Penoles Mining Company in June, 1913. The District Court rendered a decree in favor of the plaintiff from which defendants appealed to the Circuit Court of Appeals for the Fifth Circuit, and that court certifies three questions as to which it desires the instruction of this court. The sufficiency of the certificate of the Circuit Court of Appeals is challenged at the threshold. There is no denying that there is much of merit in the objection to the form of this certificate, including the form of the questions, for the reason that the certificate, instead of containing a 'proper statement of the facts on which the questions and propositions of law arise,' as is required by rule 37 of this court (32 Sup. Ct. xiv), contains a statement of what is 'alleged and denied' by the parties plaintiff and defendant in their pleadings, with the additional statement that there was evidence 'tending to establish the facts as claimed by each party,' but without any finding whatever as to what the evidence showed the facts to be, and the first question, on which the other two depend, is in terms based entirely on an 'assumed' statement of facts. If this certificate had not been supplemented by the recognition by the United States government of the government of Carranza, first as the de facto and later as the de jure government of Mexico, of which facts this court will take judicial notice (Jones v. United States, 137 U. S. 202, 11 Sup. Ct. 80, 34 L. Ed. 691; Underhill v. Hernandez, 168 U. S. 250, 18 Sup. Ct. 83, 42 L. Ed. 456), it would be our duty to declare the certificate insufficient and to return it to the Circuit Court of Appeals without answering the questions (Cinn., Ham. & Dayton Rd. Co. v. McKeen, 149 U. S. 259, 15 Sup. Ct. 1038, 40 L. Ed. 143; Graver v. Faurot, 162 U. S. 435, 16 Sup. Ct. 799, 40 L. Ed. 1030; Cross v. Evans, 167 U. S. 60, 17 Sup. Ct. 733, 42 L. Ed. 77; Stratton's Independence v. Howbert, 231 U. S. 399, 422; 34 Sup. Ct. 136, 58 L. Ed. 285). But this recognition of the government under which General Pereyra was acting, as the legitimate government of Mexico, makes the answers to the questions so certain and its effect upon the case is so clear, that, for the purpose of making an end of the litigation, we will proceed to answer the questions. I. 'Assuming that the bullion in suit was seized, condemned, and sold for war supplies by the Constitutionalist forces in revolution in Mexico, acting under authority from General Carranza, claiming to be the provisional president of the Republic of Mexico, had the District Court of the Western District of Texas, into which the said bullion had been imported from Mexico, jurisdiction to try and adjudge as to the validity of the title acquired by and through the said seizure, appropriation and sale by the Carranza forces as against an American citizen claiming ownership of said bullion prior to its seizure?' There can be no doubt that the required diversity of citizenship to give the District Court jurisdiction of the case was stated in the petition for injunction. The certificate shows that it was alleged in the petition that the bullion was the property of the plaintiff and that it had been forcibly taken from its posession in Mexico by unknown persons but without any reference being made to a state of war prevailing therein at the time; that it was consigned to defendant Barlow at El Paso, Texas, and was in a bonded warehouse in the possession of of the defendant Cobb, as collector of customs, who, unless restrained by the court would deliver it to the other defendants. This form of petition brought the case within the jurisdiction of the District Court (United States v. Arredondo et al., 6 Pet. 691, 709, 10 L. Ed. 93; Grignon's Lessee v. Astor et al., 2 How. 319, 11 L. Ed. 283; Minnesota Ed. 886), and the question is whether the Ed. 886), and the question in whether the circumstance that the bullion was seized, condemned and sold under the conditions stated in the question, deprived the court of jurisdiction to go forward and adjudge as to the validity of the title acquired by the seizure and sale by the Carranza forces. The answer which should be given to this question has been rendered not doubtful by the fact that, as we hav said, the revolution inaugurated by General Carranza against General Huerta proved successful and the government established by him has been recognized by the political department of our government as the de facto and later as the de jure government to Mexico, which decision binds the judges as well as all other officers and citizens of the government. United States v. Palmer, 3 Wheat. 610, 4 L. Ed. 471; In re Cooper, 143 U. S. 472, 12 Sup. Ct. 453, 36 L. Ed. 232; Jones v. United States, 137 U. S. 202, 11 Sup. Ct. 80, 34 L. Ed. 691. This recognition is retroactive in effect and validates all the actions of the Carranza government from the commencement of its existence (Williams v. Bruffy, 96 U. S. 176. 186, 24 L. Ed. 716; Underhill v. Hernandez, 168 U. S. 250, 253, 18 Sup. Ct. 83, 42 L. Ed. 456), and the action of General Pereyra complained of must therefore be regarded as the action, in time of civil war, of a duly commissioned general of the legitimate government of Mexico. It is settled that the courts will take judicial notice of such recognition, as we have here, of the Carranza government by the political department of our government (Jones v. United States, 137 U. S. 202, 11 Sup. Ct. 80, 34 L. Ed. 691), and that the courts of one independent government will not sit in judgment on the validity of the acts of another done within its own territory (Underhill v. Hernandez, 168 U. S. 250, 253, 18 Sup. Ct. 83, 42 L. Ed. 456; American Banana Company v. United Fruit Company, 213 U. S. 347, 29 Sup. Ct. 511, 53 L. Ed. 826, 16 Ann. Cas. 1047; Oetjen v. Central Leather Co., 246 U. S. 297, 38 Sup. Ct. 309, 62 L. Ed. ——). This last rule, however, does not deprive the courts of jurisdiction once acquired over a case. It requires only that when it is made to appear that the foreign government has acted in a given way on the subject-matter of the litigation, the details of such action or the merit of the result cannot be questioned but must be accepted by our courts as a rule for their decision. To accept a ruling authority and to decide accordingly is not a surrender or abandonment of jurisdiction but is an exercise of it. It results that the title to the property in this case must be determind by the result of the action taken by the military authorities of Mexico and that, giving effect to this rule is an exercise of jurisdiction which requires that the first question be answered in the affirmativeThe second question reads: 'If the first question is answered in the affirmative, does the subsequent recognition by the United States government of Carranza as the legitimate president of the Republic of Mexico and his government as the only legitimate government of the Republic of Mexico deprive this court of jurisdiction on this appeal to decide and adjudge the case on its merits?' Our answer to the first requires a negative answer to this second question. 'If question 2 is answered in the negative, did the seizure, condemnation, and sale of the bullion in the manner and for the purposes stated to be assumed in question 1 have the effect of divesting the title to or ownership of it of a certain citizen of the United States of American not in or a resident of Mexico when such seizure and condemnation occurred?' The answer to this question must be in the affirmative, for the reasons given and upon the authorities cited in the opinion recently announced in cases Nos. 268 and 269, Oetjen v. Central Leather Company. The fact that the title to the property in controversy may have been in an American citizen, who was not in or a resident of Mexico at the time it was seized for military purposes by the legitimate government of Mexico, does not affect the rule of law that the act within its own boundaries of one sovereign state cannot become the subject of re-examination and modification in the courts of another. Such action when shown to have been taken, becomes, as we have said, a rule of decision for the courts of this country. Whatever rights such n American citizen may have can be asserted only through the courts of Mexico or through the political departments of our government. The first and third questions will be answered in the affirmative and the second in the negative. And it is so ordered.

245.US.288

A street improvement tax having been laid upon abutting property under a city ordinance, partly according to frontage and partly according to area, and the state court having sustained it in toto, this court reversed its judgment upon the sole ground that the assessment based on area had produced results in conflict with the Fourteenth Amendment, and sent the case back for further proceedings not inconsistent with the opinion. Upon a second review, held, that the questions whether the part of the tax based on frontage was severable, though the other part was void, and whether, and by what agency, a new and just area assessment should be made, were questions of state law, untouched by this court's decision and mandate, and left for determination by the state court. Gast R ealty Co. v. Schneider Granite Co., 240 U. S. 55, explained. 269 Missouri, 561, affirmed.

These are cross writs of error, bringing under review a judgment rendered by the Supreme Court of Missouri after the reversal by this court of a previous judgment in the same action. The action was brought to collect a tax bill for paving one of the streets of St. Louis, levied upon land fronting upon the street, under an ordinance that imposed one-fourth of the cost of the improvement upon all the abutting property according to its frontage, and three-fourths according to area upon all the property in an improvement district whose boundaries were to be fixed in a manner specified in the ordinance, the effect of which, as applied to the property in question, was to extend the area assessment upon defendants' land to a depth of between 400 and 500 feet, while other lands similarly benefited by the improvement were subjected to the area assessment to a much less depth. A judgment of the Supreme Court, which had affirmed a judgment of the circuit court of the city of St. Louis sustaining the tax (259 Mo. 153, 168 S. W. 687), was reversed, and the cause remanded for further proceedings not inconsistent with the opinion of this court. 240 U. S. 55, 36 Sup. Ct. 254, 255, 60 L. Ed. 523. Upon the going down of the mandate, the case was transferred to the Supreme Court in banc, whereupon the plaintiff prayed that the cause be remanded to the circuit court (the trial court) with directions, first, to render judgment for the amount of the frontage assessment in the original tax bill, with interest, and second, to charge against the land a proper area assessment, in some mode to be prescribed by the Supreme Court in its mandate; it being plaintiff's contention that the decision of this court did not condemn the entire area assessment, but only so much of it as was in excess of benefits received. On the other hand, the landowners moved for a reversal of the judgment of the circuit court in toto, with directions for the entry of a general judgment in their favor. The Supreme Court, interpreting our decision as limited to holding the ordinance invalid only so far as concerned the area assessment, reversed the judgment of the trial court, and remanded the cause with directions to enter judgment for the amount of the frontage assessment, with interest. Both parties sued out writs of error from this court, plaintiff on the ground that the state court refused its application for an area assessment, the landowners upon the ground that there was error in directing judgment for any part of the tax bill sued on. These contentions must be tested by the true intent and meaning of the mandate of this court, and, so tested, both must be overruled. The mandate, while reversing the judgment that was under review on the former writ of error, permitted further proceedings of any kind to be had in the state courts, provided they were not inconsistent with the opinion of this court. It left the Ct. 507, 45 L. Ed. 731. Our former decision their proper jurisdiction in the cause between the parties, so long as they avoided a conflict with the rights of the landowners under the Fourteenth Amendment as established by our decision. As our former opinion shows, the conflict with federal rights was due solely to the mode in which that portion of the tax which was levied according to area was distributed. The subsequent judgment of the state court sustaining the tax to the extent of the frontage assessment was not inconsistent with it. The landowners insist that the two elements were inseparable, and that the tax, being void in part, was entirely void. But the Supreme Court of the state held in this case, following Collier Estate v. Western Paving & Supply Co., 180 Mo. 362, 375, 79 S. W. 947, that the tax was severable. This, like the kindred question of the severability of a statute of the state, is a question of state law. See Guinn v. United States, 238 U. S. 347, 366, 35 Sup. Ct. 926, 59 L. Ed. 1340, L. R. A. 1916A, 1124; Myers v. Anderson, 238 U. S. 368, 380, 35 Sup. Ct. 932, 59 L. Ed. 1349. In those cases we passed upon the question of severability, in the absence of controlling state rulings; but we were there reviewing the proceedings of federal courts, and were called upon to consider questions of state as well as of federal law, while in reviewing the judgments of state courts we are confined to the federal questions. Plaintiff's contention that our mandate required a new assessment in lieu of the former area assessment is likewise unfounded. It is true that there would be nothing inconsistent with our former judgment and mandate in imposing a new area assessment, so long as it did not infringe the landowners' rights under the Constitution of the United States. But whether such new assessment should be made, and, if made, whether it should be done by a court or by an assessing board or other appropriate instrumentality, and whether further legislation was needed for the purpose, were and are matters of state law, it being well settled that where a special assessment to pay for a particular improvement has been held to be illegal, the Constitution of the United States does not prevent the making of a new and just assessment to pay for the completed work. Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. 921, 31 L. Ed. 763; Bellingham Bay, etc., Co. v. New Whatcom, 172 U. S. 314, 19 Sup. Ct. 205, 43 L. Ed. 460; Lombard v. West Chicago Park Com., 181 U. S. 33, 42, 21 Sup. Ct. 507, 45 L. Ed. 731. Our former decision left the Supreme Court of Missouri, and the other agencies of the state, entirely unhampered in this regard. No. 461, affirmed. No. 473, affirmed.

244.US.486

A case arises under the laws of the United States where an appropriate statement of the plaintiff's cause of action, unaided by any anticipation or avoidance of defenses, discloses that it really and substantially involves a controversy respecting the validity, construction or effect of a law of Congress. A substantial controversy respecting the construction and effect of the mining laws is presented by a case in which the plaintiff sets up title under a placer patent, alleging that the locus in quo was not known to contain lodes when the patent was applied for and was so adjudged against strangers to the suit who adversed the application, and in which the defendants, notwithstanding such judgments, claim the same ground under other lode locations made after the patent and embracing claims of the width of 600 feet, while plaintiff contends 25 feet would be the maximum if the ground remained subject to lode location. In a suit to remove a particular cloud from the plaintiff's title, the facts showing that title and the existence and invalidity of the instrument or record sought to be eliminated as a cloud are essential parts of the plaintiff's cause of action and must be alleged in the bill. The rule is the same in respect of suits to remove clouds under § 6115 of the Montana Codes of 1907, as distinguished from suits to quiet title under § 6870. Recorded certificates of location are the first muniment of the locator's paper title and, when verified, are, in Montana, made prima facie evidence of all facts properly recited in them (Codes 1907, §§ 2284, 2285); and so, when apparently valid but actually, under the mining laws, invalid, they may becloud the title injuriously. Reversed.

This is a direct appeal under § 238, Judicial Code [36 Stat. at L. 1157, chap. 231, Comp. Stat. 1916, § 1215], from a decree dismissing a suit in equity for want of jurisdiction, the question for decision now being whether the case presented by the bill is one arising under the laws of the United States. With considerable detail the bill alleges that the plaintiffs are the owners of a placer mining claim in Montana for which a United States patent was issued to their predecessors in interest in 1895; that they and their predecessors have been the owners and in actual possession for more than twenty years; that at the time of the application for the patent no mineral-bearing vein or lode was known to exist within the boundaries of this placer claim; that prior to its location two lode locations were made or attempted to be made, covering part of it, and while the application for the patent was pending the lode claimants conformed to the mining laws of the United States by filing adverse claims in the local land office and bringing suits to establish them in a court of competent jurisdiction; that the placer claimants prevailed in those suits and certified copies of the judgments were duly filed in the local land office; that further proceedings were then had in the Land Department, resulting in the issue of a patent to the placer claimants according to those judgments; and that under the mining laws this passed to the plaintiffs' predecessors a full title to all land and all minerals within the boundaries of the placer claim. The bill further alleges that, notwithstanding the absence of any known vein or lode within the boundaries of the placer claim at the time of the application for the patent, notwithstanding the judgments in favor of the placer claimants in the two adverse suits, and notwithstanding the issue of the patent, several persons claim to have made lode locations at different times from 1900 to 1913 upon part of the placer claim, the part covered by the two earlier lode locations which were unsuccessfully asserted in the adverse suits,—and have caused certificates of the location of these later lode claims to be recorded in the office of the clerk of the county wherein the land lies; that these certificates contain declarations and recitals tending to support the lode claims to which they refer,—there are nine,—and give the length of each claim as 1,500 feet and its width as 600 feet; that these lode claims and the certificates were made upon the mistaken theory that, under the mining laws, the placer patent is wholly invalid as to the ground covered by the two earlier lode claims, and, if this be not so, that the ground in controversy was known at the time of the application for the patent to contain valuable mineral-bearing veins or lodes, and therefore, under the mining laws, was excepted from the patent and remained subject to location as lode claims; that, even if there were known mineral-bearing veins or lodes within the placer claim at the time of the application for the patent, no subsequent location of any such vein or lode could be made, under the mining laws, to embrace more than 25 feet of the surface on each side of it; that the defendants are claiming the ground in controversy under the later lode claims and the certificates before described; that for the reasons indicated these locations and certificates are invalid and the certificates, as recorded, constitute clouds upon the plaintiffs' title and reduce its market value; and that the determination of the plaintiffs' rights requires a construction of the mining laws under which the proceedings resulting in the patent were had, and a decision of what, according to those laws, passed by the patent, and what, if anything, was excepted and remained open to location. There is also an allegation that the suit is one arising under the laws of the United States, and the matter in dispute exceeds, exclusive of interets and costs, the sum or value of $3,000, but there is no allegation of diverse citizenship. The prayer is that the cloud caused by the recording of the certificates of location be removed and the title of the plaintiffs quieted. It is conceded that the plaintiffs, being in possession, have no remedy at law, and that their remedy, if any, is in equity. Our concern is not with this, but with the question whether the case is one arising under the laws of the United States. A case does so arise where an appropriate statement of the plaintiff's cause of action, unaided by any anticipation or avoidance of defenses, discloses that it really and substantially involves a dispute or controversy respecting the validity, construction, or effect of a law of Congress. Boston & M. Consol. Copper & S. Min. Co. v. Montana Ore Purchasing Co. 188 U. S. 632, 47 L. ed. 626, 23 Sup. Ct. Rep. 434; Shulthis v. McDougal, 225 U. S. 561, 569, 56 L. ed. 1205, 1210, 32 Sup. Ct. Rep. 704; Denver v. New York Trust Co. 229 U. S. 123, 133, 57 L. ed. 1101, 1120, 33 Sup. Ct. Rep. 657; Taylor v. Anderson, 234 U. S. 74, 58 L. ed. 1218, 34 Sup. Ct. Rep. 724. Assuming that the allegations of the bill concerning the nature and validity of the plaintiffs' title and the existence, invalidity, and recording of the defendants' certificates of location constitute a part of the plaintiffs' cause of action, it is plain that a controversy respecting the construction and effect of the mining laws is involved and is sufficiently real and substantial to bring the case within the jurisdiction of the district court. This is practically conceded in the brief for the defendants which says: 'The controversy arises by reason of the peculiar provisions of the law (Rev. Stat. § 2333, Comp. Stat. 1916, § 4632) under which one is permitted to enter upon lands patented as a placer claim and to locate within such claim a lode or lodes known to exist at the time of filing the application for the placer patent.' But it is insisted that the allegations concerning the existence, invalidity, and recording of the defendants' certificates of location form no part of the plaintiffs' cause of action, and so, for present purposes, must be disregarded. To this we cannot assent. In both form and substance the bill is one to remove a particular cloud from the plaintiffs' title,—as much so as if the purpose were to have a tax deed, a lease, or a mortgage adjudged invalid and canceled. It hardly requires statement that in such cases the facts showing the plaintiff's title and the existence and invalidity of the instrument or record sought to be eliminated as a cloud upon the title are essential parts of the plaintiff's cause of action. Full recognition of this is found in the decisions of this and other courts. Wilson Cypress Co. v. Del Pozo y Marcos, 236 U. S. 635, 643, 644, 59 L. ed. 758, 761, 766, 35 Sup. Ct. Rep. 446; Lancaster v. Kathleen Oil Co. 241 U. S. 551, 554, 555, 60 L. ed. 1161, 1165, 1166, 36 Sup. Ct. Rep. 711; Walton v. Perkins, 28 Minn. 413, 10 N. W. 424; Wals v. Grosvenor, 31 Wis. 681; Teal v. Collins, 9 Or. 89; Sheets v. Prosser, 16 N. D. 180, 183, 112 N. W. 72. If we turn to the statutes and decisions in Montana relating to the right to maintain such suits, we find that the same rule is recognized there. Two statutes may be noticed. Both were copied from the laws of California and are found in the Montana Codes of 1907. One, § 6115, provides for the cancelation of an instrument, apparently valid, but actually invalid, where there is reason to apprehend that, if not canceled, it may prove injurious to the plaintiff. The other, § 6870, permits a suit to quiet title against an adverse claimant in the absence of conditions which formerly were deemed essential. In California suits under the former are referred to as suits to remove clouds from title, while those under the latter are called suits to quiet title. The two sections are there regarded as different in both substance and purpose,—the former as putting in statutory form and preserving 'an old and well-settled rule of equity,' and the latter as greatly liberalizing and enlarging another old rule. Of the former, it is said that it 'is aimed at a particular instrument, or piece of evidence, which is dangerous to the plaintiff's rights,' and that 'there can be no question but that the facts which show the apparent validity of the instrument which is said to constitute the cloud, and also the facts showing its invalidity, ought to be stated.' Castro v. Barry, 79 Cal. 443, 21 Pac. 946; Hibernia Sav. & L. Soc. v. Ordway, 38 Cal. 679. The supreme court of Montana follows the California decisions, quotes approvingly from them, and holds in respect of suits to remove clouds from title that 'the complaint must disclose the facts necessary to show that, but for the interposition of the court, the plaintiff may suffer injury.' Hicks v. Rupp, 49 Mont. 40, 44, 45, 140 Pac. 97; Merk v. Bowery Min. Co. 31 Mont. 298, 309, 78 Pac. 519. Thus, whether we apply the general rule or the Montana rule, it is manifest that the allegations of the bill which it is insisted must be disregarded are material parts of the plaintiffs' cause of action; that is to say, they are important elements of the asserted right to have the recording of the certificates canceled as a cloud upon the title. Recorded certificates of location constitute the first muniment of the locator's paper title (Lindley on Mines, 3d ed. § 379); and when verified, as in the case here, are, in Montana, made prima facie evidence of all facts properly recited in them. Codes 1907, §§ 2284, 2285. So, when they are apparently valid, but, under the mining laws, are actually invalid, as is asserted here, they may becloud the title injuriously. We are accordingly of opinion that the bill states a case arising under the mining laws of the United States, and of which the District Court is given jurisdiction. Decree reversed.

243.US.452

By force of the Clapp Amendment of 1906-1907, chaps. 3504, 2285, 34 Stat. 353, 1034, lands in the White Earth Reservation allotted and patented in trust to an adult mixed-blood Indian belong to him with all the rights and incidents of full ownership by persons of full capacity, including the right of alienation; and when he conveys them the United States cannot maintain for his benefit a suit to annul the deed upon the ground that it was procured by fraud.

This case is here upon a certificate from the circuit court of appeals for the eighth circuit, from which it appears that the United States brought a suit in the district court of the United States for the district of Minnesota for the purpose of canceling and annulling a warranty timber deed from Ah-be-daun-ah-quod and Ah-sum, Indian allottees on the White Earth Reservation in Minnesota, to Mamie S. Waller, dated November 4, 1907, and a certain warranty deed from the same Indians to L. S. Waller, dated January 6, 1908. The district court dismissed the bill on the ground that the plaintiff had no capacity to maintain the suit, and upon a further ground that the court had no jurisdiction to hear and consider the same. The court of appeals certifies the bill upon which suit was brought in the district court, wherein it is alleged that the United States brought the action upon behalf of Ah-be-daun-ah-quod and Ah-sum, Indian allottees in the White Earth Reservation in Minnesota. The acts of Congress under which the allotments were made to the Indians named are set forth, and it is averred that these acts provided that the lands in question should be held in trust by the United States for a period of twenty-five years; that the Indians for whom the suit was brought were Chippewa Indians of the White Earth Reservation, residing on the reservation, and were husband and wife and adult mixed-blood Indians. It is averred that since the establishment of the White Earth Reservation the United States, in pursuance of its treaties and agreements with the tribes and bands of Chippewa Indians in the state of Minnesota, and in pursuance of its laws, has had and exercised through the Department of the Interior and the Office of Indian Affairs the function of guardian, protecting and defending said tribes and bands and the individual members thereof in the enjoyment and possession of their property rights. That before the commission of the acts of the defendants complained of there were duly allotted to Ah-be-daun-ah-quod and Ah-sum certain tracts of land in the White Earth Reservation, which are described. That afterwards, in December, 1907, the defendant Lucky S. Waller, negotiating with these two Indians for the purchase of a portion of the timber upon their allotments, paid to them $50 as partial payment for such timber, and caused them to sign a certain paper, produced by him, by placing their thumb marks thereon. That as an inducement to procuring the execution of this paper, Waller falsely and fraudulently stated that it was merely a receipt for the payment. That neither Indian could read or write, and each was obliged to rely on Waller for understanding and knowledge of the contents of the instrument, and that so relying upon him and upon his false statements, they believed the instrument to be but a receipt for the money paid. That in January, 1908, a further payment of $75 was made by Waller to the two Indians, and another paper executed by them under similar circumstances and representations. That in June, 1910, and December, 1911, sums of $10 were paid by Waller to the Indians; that such sums, aggregating $145, were all paid with the understanding and belief on the part of the Indians that they were part of the purchase price of a part of the timber upon the lands; and that no other or further moneys have been paid by Walter to the Indians. That in December, 1911, the Indians for the first time learned, and plaintiff was thereafter advised, that the land records in the offices of the registers of deeds of Mahnomen and Clearwater counties, Minnesota, showed that there had been filed for record in said offices, respectively, two instruments in writing: one, an instrument purporting to be a warranty timber deed from Ah-be-daun-ah-quod and Ah-sum to Mamie S. Waller, dated November 4, 1907, reciting the consideration for the property therein conveyed to be $500, and purporting to convey the timber upon the lands patented to the Indians with the exception of one parcel, and the other an instrument purporting to be a warranty deed from Ah-be-daun-ah-quod and Ah-sum to L. S. Waller, dated January 6, 1908, reciting the consideration paid to be $200, and purporting to convey all of the lands patented. That the instruments so recorded were the instruments executed by the Indians, by their thumb marks in the custom of Indians unable to read or write, and that the instruments which the Indians executed in December, 1907, and January, 1908, were not in truth and in fact the receipts which the defendant Waller falsely and fraudulently represented them to be, but were the instruments so recorded, which the Indians signed in ignorance of their contents, nature, and effect, and in reliance upon the false and fraudulent representations in regard thereto made by the defendant Waller, all of which was well known to the defendant. That Mamie S. Waller is the wife of defendant Lucky S. Waller, and the person mentioned as the grantee in the timber deed; that she gave no consideration for the timber deed or the property purporting to be conveyed thereby; that the deed was caused to be taken in her name as grantee for the mutual benefit of the defendants; that she pretends to have and claims the title to the property therein described by virtue of said timber deed, and thereby seeks to avail herself of the benefit of the fraud perpetrated in securing the timber deed from the two Indians. That the Indians never had any negotiations with either of the defendants, directly or indirectly, as to the sale of the lands or of any timber thereon, or in any respect other than as set forth in the bill; that they never intended to sell the lands and never did sell them or any part thereof; and that they never knowingly signed or executed any instrument conveying or in any manner alienating the lands or any part thereof or interests or rights therein, or any timber thereon. That the instruments which were executed and recorded had and have the apparent legal effect of vesting the title to the lands and the timber thereon in the defendants, and of devesting the Indians of whatever right, title, and interest in and to said lands and timber were intended and provided for them by the laws of the United States. That the sum of $145, paid by Waller to the Indians, is grossly inadequate and disproportionate to the value of the lands and of the timber thereupon, and that the value of the lands is not less than $2,500, and of the timber not less than $2,000. The prayer of the bill is for surrender and cancelation of the warranty timber deed and the warranty deed for the lands. The case was appealed to the circuit court of appeals for the eighth circuit, which court has certified to this court the following question: Has the United States capacity to maintain the suit in question on behalf of the Indians named? The answer to the question propounded depends upon a consideration of the acts of Congress relating to these Indians. The controlling act is the so-called Clapp Amendment of June 21, 1906 (34 Stat. at L. 325, 353, chap. 3504); March 1, 1907 (34 Stat. at L. 1015, 1034, chap. 2285). Before dealing with its interpretation, it is necessary to have in mind certain matters which are well-settled by the previous decisions of this court. The tribal Indians are wards of the government, and as such under its guardianship. It rests with Congress to determine the time and extent of emancipation. Conferring citizenship is not inconsistent with the continuation of such guardianship, for it has been held that even after the Indians have been made citizens, the relation of guardian and ward for some purposes may continue. On the other hand, Congress may relieve the Indians from such guardianship and control, in whole or in part, and may, if it sees fit, clothe them with full rights and responsibilities concerning their property, or give to them a partial emancipation if it thinks that course better for their protection. United States v. Nice, 241 U. S. 591, 598, 60 L. ed. 1192, 1195, 36 Sup. Ct. Rep. 696, and cases cited. To Comprehend what Congress in tended to accomplish by the act in question, it is necessary to have in view the previous legislation upon this subject. Its history was given in United States v. First Nat. Bank, 234 U. S. 245, 58 L. ed. 1298, 34 Sup. Ct. Rep. 846, and may be briefly summarized here. By the Treaty of March 19, 1867 (16 Stat. at L. 719), creating the White Earth Reservation, the Chippewas of the Mississippi ceded all their land in Minnesota, except certain described tracts, to the United States, and the government set apart the White Earth Reservation for their use, and provision was made for the certification to each Indian of not to exceed 160 acres of land in lost of 40 acres each, upon the cultivation of 10 acres, provided that the land should be exempt from taxation and sale for debt and should not be alienated except with the approval of the Secretary of the Interior, and then only to a Chippewa Indian. Under the General Allotment Act of February 8, 1887 (24 Stat. at L. 388, chap. 119, Comp. Stat. 1913, § 4195), provision was made for the allotment of lands in the Indian reservations in severalty, and it was provided that upon the approval of the allotments, patent therefor should issue in the name of the allottees, which should have the legal effect and declare that the United States held the land for twenty-five years in trust, for the use and benefit of the Indian to whom the allotment was made, or, in case of his death, for his heirs, according to the laws of the state or territory where the land was located. At the expiration of that time the United States was required to convey the same to the Indian or his heirs in fee, discharged of the trust and free of encumbrances, provided that the President of the United States might, at his discretion, extend the period. Conveyances or contracts touching the lands before the expiration of the trust period were declared null and void. The Nelson Act of January 14, 1889 (25 Stat. at L. 642, chap. 24), provided for the relinquishment to the United States of that part of the reservation remaining after the allotment, the act to become operative only upon the assent of a certain number of Indians being obtained. By the Act of February 28, 1891 (26 Stat. at L. 794, chap. 383, Comp. Stat. 1913, § 4195), the allotments were limited to 80 acres to each Indian, but by the Act of April 28, 1904 (33 Stat. at L. 539, chap. 1786), the maximum allotments of the White Earth Reservation were made 160 acres. While the lands were thus held in trust and subject to the provisions of the Act of February 8, 1887, the Clapp Amendment was passed (34 Stat. at L. 1015, 1034, chap. 2285), which provides: 'That all restrictions as to the sale, encumbrance, or taxation for allotments within the White Earth Reservation in the state of Minnesota, heretofore [amended March 1, 1907, the work 'heretofore' being substituted for the word 'now'] or hereafter held by adult mixed-blood Indians, are here by removed, and the trust deeds heretofore or hereafter executed by the Department for such allotments are hereby declared to pass the title in fee simple, or such mixed bloods upon application shall be entitled to receive a patent in fee simple for such allotments; and as to full bloods, said restrictions shall be removed when the Secretary of the Interior is satisfied that said adult full-blood Indians are competent to handle their own affairs, and in such case the Secretary of the Interior shall issue to such Indian allottee a patent in fee simple upon application.' As stated in the certificate, the Indians involved are adults of mixed blood, and the lands in question were duly allotted and patented to them (by trust patents, counsel agree) before the deeds in controversy were made. We cannot escape the conviction that the plain language of this act evidences the intent and purpose of Congress to make such lands allotted to mixed-blood Indians subject to alienation with all the incidents and rights which inhere in full ownership in persons of full capacity. The act deals with two classes: First, adult mixed-blood Indians, as to whom all restrictions as to sale or encumbrance are removed and the trust deeds declared to pass title in fee simple, or, upon application, such mixed bloods are to receive fee-simple patents for their allotments; and, second, full-blood Indians, as to whom the restrictions are to continue until the Secretary of the Interior is satisfied that such Indians, 'are competent to handle their own affairs,' at which time they are to receive patents in fee simple. This distinction between the qualifications of adult mixed and full-blood Indians is one which Congress has not infrequently applied. Marchie Tiger v. Western Invest. Co. 221 U. S. 286, 306, 308, 55 L. ed. 738, 745, 746, 31 Sup. Ct. Rep. 578; United States v. First Nat. Bank, supra, at page 260. The act thus evidences a legislative judgment that adult mixed-blood Indians are, in the respects dealt with in the act, capable of managing their own affairs, and for that reason they are given full power and authority to dispose of allotted lands. This may be a mistake of judgment as to some cases, and if the allegations of the bill set forth in the certificate in this case are true, it is quite evident that the Indians here involved were incapable of making an intelligent disposition of their lands. But Congress dealt with general conditions, and with these classes of Indians as a whole, and, with authority over the subject, has given to adult mixed-blood Indians the full right to dispose of the lands in question. It is not for the courts to question this legislative judgment. In this view of the legislation and the particular act in question, we are unable to find any authority in the United States to maintain this suit in behalf of the Indians named. In Heckman v. United States, 224 U. S. 413, 56 L. ed. 820, 32 Sup. Ct. Rep. 424, it was held that the United States could maintain a bill to cancel conveyances made by members of the Cherokee Nation in violation of restrictions imposed by acts of Congress. That case differs from the present one, in which there has been no disposition of the lands in violation of restrictions imposed by Congress upon alienation by the Indians. In the case now before us, in whatever other respect the government of the United States may continue to hold these Indians as wards, needing and receiving protection from its authority over their persons and property, as to the land in question the United States, in the passage of the Clapp Amendment, evidenced its purpose to grant full power and control to the class named. As to them the government has no further interest in or control over the lands. It does not follow that the Indians are without remedy in proper actions brought by themselves or their guardians, if there be such, for the protection of their rights. In Dickson v. Luck Land Co. decided at this term and reported in 242 U. S. 371, 61 L. ed. 371, 37 Sup. Ct. Rep. 167, this court had occasion to deal with rights concerning lands allotted and patented under the Clapp Amendment to adult mixed-blood Chippewa Indians, and speaking of the effect of the removal of the restrictions, this court said, at page 375: 'With those restrictions entirely removed and the fee-simple patent issued it would seem that the situation was one in which all questions pertaining to the disposal of the lands naturally would fall within the scope and operation of the laws of the state. And that Congress so intended is shown by the Act of May 8, 1906, chap. 2348 (34 Stat. at L. 182, Comp. Stat. 1913, § 4203), which provides that when an Indian allottee is given a patent in fee for his allotment he 'shall have the benefit of and be subject to the laws, both civil and criminal, of the state.' Among the laws to which the allottee became subject, and to the benefit of which he became entitled, under this enactment, were those governing the transfer of real property, fixing the age of majority, and declaring the disability of minors.' We reach the conclusion that in this suit the United States was without capacity to bring the action for the benefit of the Indians named, and it follows that the question propounded must be answered in the negative. And it is so ordered.

243.US.124

The British merchant steamship Appam., captured on the high seas by a German cruiser and navigated to a port of the United States in control of German officers and crew, during the war between Great Britain and Germany, is held to have been brought here as a prize. Under the principles of international law, as recognized by our government since an early day in its history and as emphasized in its attitude in the Hague Conference of 1907, it is a clear breach of our neutral rights for one of two belligerent governments, with both of which we are at peace, to make use of our ports for the indefinite storing and safe-keeping of prizes captured from its adversary on the high seas. Failure of our government to issue a proclamation on the subject will not warrant the use of our ports to store prizes indefinitely, and certainly not where the possibility of removal depends upon recruiting crews in violation of our established rules of neutrality. The Treaty with Prussia of 1799i 8 Stat. 172, 173, Article 19, makes no provision for indefinite stay of vessels, and includes prizes only when in charge of vessels of war. The violation of neutrality committed by a belligerent in wrongfully making use of one of our ports for storing indefinitely a merchant vessel and cargo captured on the high seas, affords jurisdiction in admiralty to the United States District Court of the locality to seize the vessel and cargo and restore them to their private owners. In such case, proceedings in a prize court of the belligerent country could not oust the jurisdiction of the District Court having the vessel in custody or defeat its judgment. 234 Fed. Rep. 389, affirmed.

These are appeals from the district court of the United States for the eastern district of Virginia, in two admiralty cases. No. 650 was brought by the British & African Steam Navigation Company, Limited, owner of the British steamship Appam, to recover possession of that vessel. No. 722 was a suit by the master of the Appam to recover possession of the cargo. In each of the cases the decree was in favor of the libellant. The facts are not in dispute, and from them it appears: That during the existence of the present war between Great Britain and Germany, on the 15th day of January, 1916, the steamship Appam was captured on the high seas by the German cruiser, Moewe. The Appam was a ship under the British flag, registered as an English vessel, and is a modern cargo and passenger steamship of 7,800 tons burden. At the time of her capture she was returning from the West Coast of Africa to Liverpool, carrying a general cargo of cocoa beans, palm oil, kernels, tin, maize, sixteen boxes of specie, and some other articles. At the West African port she took on 170 passengers, eight of whom were military prisoners of the English government. She had a crew of 160 or thereabouts, and carried a 3-pound gun at the stern. The Appam was brought to by a shot across her bows from the Moewe, when about a hundred yards away, and was boarded without resistence by an armed crew from the Moewe. This crew brought with them two bombs, one of which was slung over the bow and the other over the stern of the Appam. An officer from the Moewe said to the captain of the Appam that he was sorry he had to take his ship, asked him how many passengers he had, what cargo, whether he had any specie, and how much coal. When the shot was fired across the bows of the Appam, the captain instructed the wireless operator not to touch the wireless instrument, and his officers not to let anyone touch the gun on board. The officers and crew of the Appam, with the exception of the engine room force, thirty-five in number, and the second officer, were ordered on board the Moewe. The captain, officers, and crew of the Appam were sent below, where they were held until the evening of the 17th of January, when they and about 150 others, officers and crews of certain vessels previously sunk by the Moewe, were ordered back to the Appam and kept there as prisoners. At the time of the capture, the senior officer of the boarding party told the chief engineer of the Appam he was now a member of the German navy; if he did not obey orders his brains would be blown out, but if he obeyed, not a hair of his head should be touched. The Appam's officer was instructed to tell his staff the same thing, and if they did not obey orders they would be brought to the German officer and shot. Inquiries were made by the German officer in command of the Appam as to revolutions of the engines, the quantity of coal on hand and the coal consumption for different speeds, and instructions were given that steam be kept up handy, and afterwards the engineer was directed to set the engines at the revolutions required, and the ship got under way. Lieutenant Berg, who was the German officer in command of the Appam after its capture, told the engineer on the second morning that he was then in charge of the ship, asked of him information as to fuel consumption, and said that he expected the engineer to help him all he could, and the more he did for him the better it would be for everybody on the ship. The engineer said he would, and did so. The engines were operated with a bomb secured to the port main injector valve, and a German sailor stationed alongside the bomb with a revolver. There was a guard below of four or five armed Germans, who were relieved from time to time, but did not interfere with the working of the ship. The German officer, Lieutenant Berg, gave directions as to working the engines, and was the only officer on board who wore a uniform. On the night of the capture, the specie in the specie room was taken on board the Moewe. After Lieutenant Berg took charge of the Appam, bombs were slung over her bow and stern, one large bomb, said to contain about 200 pounds of explosive, was placed on the bridge, and several smaller ones in the chart room. Lieutenant Berg informed the captain of the Appam, pointing to one of the bombs, 'That is a bomb; if there is any trouble, mutiny, or attempt to take the ship, I have orders to blow up the ship instantly.' He also said, 'There are other bombs about the ship; I do not want to use them, but I shall be compelled to if there is any trouble.' The bombs were kept in the positions stated until the ship arrived at the Virginia Capes, when they were removed. Lieutenant Berg, on reaching Hampton Roads, asked the crew of the Appam to drop the anchor, as he had not men to do it. During the trip to the westward, the officers and crew of the Appam were not allowed to see the ship's compass to ascertain her course, and all lights were obscured during the voyage. The German prisoners, with the exception of two who went on board the Moewe, were armed and placed over the passengers and crew of the Appam as a guard all the way across. For two days after the capture, the Appam remained in the vicinity of the Moewe, and then was started westward. Her course for the first two or three days was southwesterly, and afterwards westerly, and was continued until her arrival at the Virginia Capes on the 31st of January. The engine-room staff of the Appam was on duty operating the vessel across to the United States; the deck crew of the Appam kept the ship clean, and the navigation was conducted entirely by the Germans, the lookouts being mostly German prisoners. At the time of the capture, the Appam was approximately distant 1,590 miles from Emden, the nearest German port; from the nearest available port, namely Punchello, in the Madeiras, 130 miles; from Liverpool, 1,450 miles; and from Hampton Roads, 3,051 miles. The Appam was found to be in first-class order, seaworthy, with plenty of provisions, both when captured and at the time of her arrival in Hampton Roads. The order or commission delivered to Lieutenant Berg by the commander of the Moewe is as follows: 'Information for the American Authorities. The bearer of this, Lieutenant of the Naval Reserve, Berg, is appointed by me to the command of the captured English steamer Appam and has orders to bring the ship into the nearest American harbor and there to lay up. Kommando S. M. H. Moewe. Count Zu Dohna, Cruiser Captain and Commander. (Imperial Navy Stamp.) Kommando S. M. H. Moewe.' Upon arrival in Hampton Roads, Lieutenant Berg reported his arrival to the collector, and filed a copy of his instructions to bring the Appam into the nearest American port and there to lay up. On February 2d, his Excellency, the German Ambassador, informed the State Department of the intention, under alleged treaty rights, to stay in an American port until further notice, and requested that the crew of the Appam be detained in the United States for the remainder of the war. The prisoners brought in by the Appam were released by order of the American government. On February 16th, and sixteen days after the arrival of the Appam in Hampton Roads, the owner of the Appam filed the libel in case No. 650, to which answer was filed on March 3d. On March 7th, by leave of court, an amended libel was filed, by which the libellant sought to recover the Appam upon the claim that holding and detaining the vessel in American waters was in violation of the law of nations and the laws of the United States and of the neutrality of the United States. The answer of the respondents to the amended libel alleged that the Appam was brought in as a prize by a prize master, in reliance upon the Treaty of 1799 between the United States and Prussia [8 Stat. at L. 162]; that by the general principles of international law the prize master was entitled to bring his ship into the neutral port under these circumstances, and that the length of stay was not a matter for judicial determination; and that proceedings had been instituted in a proper prize court of competent jurisdiction in Germany for the condemnation of the Appam as a prize of war; and averred that the American court had no jurisdiction. The libel against the Appam's cargo was filed on March 13th, 1916, and answer filed on March 31st. During the progress of the case, libellant moved the court to sell a part of the cargo as perishable; on motion the court appointed surveyors, who examined the cargo and reported that the parts so designated as perishable should be sold; upon their report orders of sale were entered, under which such perishable parts were sold, and the proceeds of that sale, amounting to over $600,000, are now in the registry of the court, and the unsold portions of the cargo are now in the custody of the marshal of the eastern district of Virginia. The argument in this case has taken wide range, and orally and in printed briefs counsel have discussed many questions which we do not consider necessary to decide in determining the rights involved in these appeals. From the facts which we have stated, we think the decisive questions resolve themselves into three: First, was the use of an American port, under the circumstances shown, a breach of this nation's neutrality under the principles of international law? Second, was such use of an American port justified by the existing treaties between the German government and our own? Third, was there jurisdiction and right to condemn the Appam and her cargo in a court of admiralty of the United States? It is familiar international law that the usual course after the capture of the Appam would have been to take her into a German port, where a prize court of that nation might have adjudicated her status, and, if it so determined, condemned the vessel as a prize of war. Instead of that, the vessel was neither taken to a German port, nor to the nearest port accessible of a neutral power, but was ordered to, and did, proceed over a distance of more than 3,000 miles, with a view to laying up the captured ship in an American port. It was not the purpose to bring the vessel here within the privileges universally recognized in international law, i. e., for necessary fuel or provisions, or because of stress of weather or necessity of repairs, and to leave as soon as the cause of such entry was satisfied or removed. The purpose for which the Appam was brought to Hampton Roads, and the character of the ship, are emphasized in the order which we have quoted, to take her to an American port and there lay her up, and in a note from his Excellency, the German Ambassador, to the Secretary of State, in which the right was claimed to keep the vessel in an American port until further notice (Diplomatic Correspondence with Belligerent Governments Relating to Neutral Rights and Duties, Department of State, European War No. 3, page 331), and a further communication from the German Ambassador, forwarding a memorandum of a telegram from the German government concerning the Appam, (Idem, page 333), in which it was stated: 'Appam is not an auxiliary cruiser, but a prize. Therefore she must be dealt with according to article 19 of Prusso-American Treaty of 1799. Article 21 of Hague Convention concerning neutrality at sea is not applicable, as this convention was not ratified by England and is therefore not binding in present war according to article 28. The above-mentioned article 19 authorizes a prize ship to remain in American ports as long as she pleases. Neither the ship nor the prize crew can therefore be interned nor can there be question of turning the prize over to English.' In view of these facts, and this attitude of the Imperial government of Germany, it is manifest that the Appam was not brought here in any other character than as a prize, captured at sea by a cruiser of the German navy, and that the right to keep her here, as shown in the attitude of the German government and in the answer to the libel, was rested principally upon the Prussian-American Treaty of 1799. The principles of international law recognized by this government, leaving the treaty aside, will not permit the ports of the United States to be thus used by belligerents. If such use were permitted, it would constitute of the ports of a neutral country harbors of safety into which prizes, captured by one of the belligerents, might be safely brought and indefinitely kept. From the beginning of its history this country has been careful to maintain a neutral position between warring governments, and not to allow the use of its ports in violation of the obligations of neutrality; nor to permit such use beyond the necessities arising from the perils of the seas or the necessities of such vessels as to seaworthiness, provisions, and supplies. Such usage has the sanction of international law (Dana's Note to Wheaton on International Law, 1866, 8th Am. ed. § 391), and accords with our own practice (7 Moore's Digest of International Law, 936-938). A policy of neutrality between warring nations has been maintained from 1793 to this time. In that year President Washington firmly denied the use of our ports to the French Minister for the fitting out of privateers to destroy English commerce. This attitude led to the enactment of the Neutrality Act of 1794, afterwards embodied in the Act of 1818, enacting a code of neutrality, which, among other things, inhibited the fitting out and arming of vessels; the augmenting or increasing of the force of armed vessels; or the setting on foot in our territory of military expeditions; and empowering the President to order foreign vessels of war to depart from our ports, and compelling them so to do when required by the law of nations. 4 Moore, International Arbitrations, 3967 et seq. This policy of the American government was emphasized in its attitude at the Hague Conference of 1907. Article 21 of the Hague Treaty provides: 'A prize may only be brought into a neutral port on account of unseaworthiness, stress of weather, or want of fuel or provisions. 'It must leave as soon as the circumstances which justified its entry are at an end. If it does not, the neutral power must order it to leave at once; should it fail to obey, the neutral power must employ the means at its disposal to release it with its officers and crew and to intern the prize crew.' 'A neutral power must, similarly, release a prize brought into one of its ports under circumstances other than those referred to in article 21.' To these articles, adherence was given by Belgium, France, Austria-Hungary, Germany, the United States, and a number of other nations. They were not ratified by the British government. This government refused to adhere to article 23, which provides: 'A neutral power may allow prizes to enter its ports and roadsteads, whether under convoy or not, when they are brought there to be sequestrated pending the decision of a prize court. It may have the prize taken to another of its ports. 'If the prize is convoyed by a warship, the prize crew may go on board the convoying ship. 'If the prize is not under convoy, the prize crew are left at liberty.' And in the proclamation of the convention the President recited the resolution of the Senate adhering to it, subject to 'the reservation and exclusion of its article 23, and with the understanding that the last clause of article 3 of the said convention implies the duty of a neutral power to make the demand therein mentioned for the return of a ship captured within the neutral jurisdiction and no longer within that jurisdiction.' 36 Stat. at L. 2438. While this treaty may not be of binding obligation, owing to lack of ratification, it is very persuasive as showing the attitude of the American government when the question is one of international law; from which it appears clearly that prizes could only be brought into our ports upon general principles recognized in international law, on account of unseaworthiness, stress of weather, or want of fuel or provisions, and we refused to recognize the principle that prizes might enter our ports and roadsteads, whether under convoy or not, to be sequestrated pending the decision of a prize court. From the history of the conference it appears that the reason for the attitude of the American delegates in refusing to accept article 23 was that thereby a neutral might be involved in participation in the war to the extent of giving asylum to a prize which the belligerent might not be able to conduct to a home port. See Scott, Peace Conferences, 1899-1907, vol. 2, pp. 237 et seq. Much stress is laid upon the failure of this government to proclaim that its ports were not open to the reception of captured prizes, and it is argued that, having failed to interdict the entrance of prizes into our ports, permission to thus enter must be assumed. But, whatever privilege might arise from this circumstance, it would not warrant the attempted use of one of our ports as a place in which to store prizes indefinitely, and certainly not where no means of taking them out are shown except by the augmentation of her crew, which would be a clear violation of established rules of neutrality. As to the contention on behalf of the appellants that article 19 of the Treaty of 1799 [8 Stat. at L. 172] justifies bringing in and keeping the Appam in an American port, in the situation which we have outlined, it appears that, in response to a note from his Excellency, the German Ambassador, making that contention, the American Secretary of State, considering the treaty, announced a different conclusion (Diplomatic Correspondence with Belligerent Governments, supra, pages 335 et seq.); and we think this view is justified by a consideration of the terms of the treaty. Article 19 of the Treaty of 1799, using the translation adopted by the American State Department, reads as follows: 'The vessels of war, public and private, of both parties, shall carry [conduire] freely, wheresoever they please, the vessels and effects taken [pris] from their enemies, without being obliged to pay any duties, charges, or fees to officers of admiralty, of the customs, or any others; nor shall such prizes [prises] be arrested, searched or put under legal process, when they come to and enter the ports of the other party, but may freely be carried [conduites] out again at any time by their captors [le vaisseau preneur] to the places expressed in their commissions, which the commanding officer of such vessel [le dit vaisseau] shall be obliged to shew. (But conformably to the treaties existing between the United States and Great Britain, no vessel [vaisseau] that shall have made a prize [prise] upon British subjects shall have a right to shelter in the ports of the United States, but if [il est] forced therein by tempests, or any other danger, or accident of the sea, they [il sera] shall be obliged to depart as soon as possible.)' The provision concerning the treaties between the United States and Great Britain is no longer in force, having been omitted by the Treaty of 1828 [8 Stat. at L. 378]. See Compilation of Treaties in Force, 1904, pages 641 and 646. We think an analysis of this article makes manifest that the permission granted is to vessels of war and their prizes, which are not to be arrested, searched, or put under legal process when they come into the ports of the high contracting parties, to the end that they may be freely carried out by their captors to the places expressed in their commissions, which the commanding officer is obliged to show. When the Appam came into the American harbor she was not in charge of a vessel of war of the German Empire. She was a merchant vessel, captured on the high seas and sent into the American port with the intention of being kept there indefinitely, and without any means of leaving that port for another, as contemplated in the treaty, and required to be shown in the commission of the vessel bringing in the prize. Certainly such use of a neutral port is very far from that contemplated by a treaty which made provision only for temporary asylum for certain purposes, and cannot be held to imply an intention to make of an American port a harbor of refuge for captured prizes of a belligerent government. We cannot avoid the conclusion that in thus making use of an American port there was a clear breach of the neutral rights of this government, as recognized under principles of international law governing the obligations of neutrals, and that such use of one of our ports was in no wise sanctioned by the Treaty of 1799. It remains to inquire whether there was jurisdiction and authority in an admiralty court of the United States, under these circumstances, to order restoration to an individual owner of the vessel and cargo. The earliest authority upon this subject in the decisions of this court is found in the case of Glass v. The Betsy, 3 Dall. 6, 1 L. ed. 485, decided in 1794, wherein it appeared that the commander of the French privateer, The Citizen Genet, captured as a prize on the high seas the sloop Betsy, and sent the vessel into Baltimore, where the owners of the sloop and cargo filed a libel in the district court of Maryland, claiming restitution because the vessel belonged to subjects of the King of Sweden, a neutral power, and the cargo was owned jointly by Swedes and Americans. The district court denied jurisdiction, the circuit court affirmed the decree, and an appeal was prosecuted to this court. The unanimous opinion was announced by Mr. Chief Justice Jay, holding that the district courts of the United States possessed the powers of courts of admiralty, whether sitting as an instance or as a prize court, and sustained the jurisdiction of the district court of Maryland, and held that that court was competent to inquire into and decide whether restitution should be made to the complainants conformably to the laws of nations and the treaties and laws of the United States. The question came again before this court in the case of The Santissima Trinidad, decided in 1822, 7 Wheat. 283, 5 L. ed. 454. In that case it was held that an illegal capture would be invested with the character of a tort, and that the original owners were entitled to restitution when the property was brought within our jurisdiction. The opinion was delivered by Mr. Justice Story, and, after a full discussion of the matter, the court held that such an illegal capture, if brought into the jurisdiction of the courts of the United States, was subject to condemnation and restitution to the owners, and the learned justice said: 'If, indeed, the question were entirely new, it would deserve very grave consideration, whether a claim founded on a violation of our neutral jurisdiction could be asserted by private persons, or in any other manner than a direct intervention of the government itself. In the case of a capture made within a neutral territorial jurisdiction, it is well settled that, as between the captors and the captured, the question can never be litigated. It can arise only upon a claim of the neutral sovereign, asserted in his own courts or the courts of the power having cognizance of the capture itself for the purposes of prize. And, by analogy to this course of proceeding, the interposition of our own government right seem fit to have been required before cognizance of the wrong could be taken by our courts. But the practice from the beginning in this class of causes, a period of nearly thirty years, has been uniformly the other way; and it is now too late to disturb it. If any inconvenience should grow out of it, from reasons of state policy or executive discretion, it is competent for Congress to apply at its pleasure the proper remedy.' Page 349. 'Whatever may be the exemption of the public ship herself, and of her armament and munitions of war, the prize property which she brings into our ports is liable to the jurisdiction of our courts, for the purpose of examination and inquiry, and if a proper case be made out, for restitution to those whose possession has been devested by a violation of our neutrality; and if the goods are landed from the public ship in our ports, by the express permission of our own government, that does not vary the case, since it involves no pledge that, if illegally captured, they shall be exempted from the ordinary operation of our laws.' Page 354. In the subsequent cases in this court this doctrine has not been departed from. L'Invincible, 1 Wheat. 238, 258, 4 L. ed. 80, 84; The Estrella, 4 Wheat. 298, 308-311, 4 L. ed. 574, 577, 578; La Amistad De Rues, 5 Wheat. 385, 390, 5 L. ed. 115, 116. It is insisted that these cases involve illegal captures at sea, or violations of neutral obligation, not arising because of the use of a port by sending in a captured vessel and keeping her there in violation of our rights as a neutral. But we are at a loss to see any difference in principle between such cases and breaches of neutrality of the character here involved in undertaking to make of an American port a depository of captured vessels with a view to keeping them there indefinitely. Nor can we consent to the insistence of counsel for appellant that the prize court of the German Empire has exclusive jurisdiction to determine the fate of the Appam as lawful prize. The vessel was in an American port, and, under our practice, within the jurisdiction and possession of the district court, which had assumed to determine the alleged violation of neutral rights, with power to dispose of the vessel accordingly. The foreign tribunal, under such circumstances, could not oust the jurisdiction of the local court and thereby defeat its judgment. The Santissima Trinidad, supra, p. 355. Were the rule otherwise than this court has frequently declared it to be, our ports might be filled, in case of a general war such as is now in progress between the European countries, with captured prizes of one or the other of the belligerents, in utter violation of the principles of neutral obligation which have controlled this country from the beginning. The violation of American neutrality is the basis of jurisdiction, and the admiralty courts may order restitution for a violation of such neutrality. In each case the jurisdiction and order rests upon the authority of the courts of the United States to make restitution to private owners for violations of neutrality where offending vessels are within our jurisdiction, thus vindicating our rights and obligations as a neutral people. It follows that the decree in each case must be affirmed.

246.US.146

An excise tax of a designated per cent. of entire authorized capital, imposed on a foreign corporation for the privilege of doing local business in Massachusetts, held, void, upon the authority of InternationalP aper Co. v. Massachusetts, ante, 135, and cases there cited. 228 Massachusetts, 117, reversed.

An excise tax of $1,300 imposed on a West Virginia corporation for doing a local business in Massachusetts during the year 1915 is here in question. The state court sustained it. 228 Mass. 117, 117 N. E. 5. The corporation is engaged in manufacturing in Connecticut and sells its manufactured articles extensively in interstate commerce. It does both an interstate and a local business in Massachusetts. Each is of considerable volume, but the interstate is much the larger, although this is not material. The tax is of a designated per cent. of the entire authorized capital, and was imposed after the maximum limit named in St. 1909, c. 490, part 3, § 56, was removed by St. 1914, c. 724, § 1. As thus changed the statute is in its essence and practical operation indistinguishable from those adjudged invalid in Western Union Telegraph Co. v. Kansas, 216 U. S. 1, 30 Sup. Ct. 190, 54 L. ed. 355; Pullman Co. v. Kansas, 216 U. S. 56, 30 Sup. Ct. 232, 54 L. Ed. 378; Ludwig v. Western Union Telegraph Co., 216 U. S. 146, 30 Sup. Ct. 280, 54 L. Ed. 423, and Looney v. Crane Co., 245 U. S. 178, 38 Sup. Ct. 85, 62 L. Ed. ——. This we have just decided in International Paper Co. v. Massachusetts, 246 U. S. 135, 38 Sup. Ct. 292, 62 L. Ed. ——. Judgment reversed.

244.US.300

The Supreme Court of Ohio, after refusing to review a judgment of the Ohio Court of Appeals by certiorari, dismissed a writ of error to the judgment for want of jurisdiction. Held, that under Jud. Code, § 237, the writ of this court rAn properly to the Court of Appeals. Stratton v. Stratton, 239 U. S. 55. In a controversy in the courts of Ohio over the right of one coiporation to condemn land of another, Held, that the existence of the petitioning corporation, its right to condemn, its inability to agree as to compensation to be paid for the property, and the necessity for the appropriation, were matters depending purely on the local law. It not appearing otherwise whether the judgment of the Ohio Court of Appeals was based on provisions of local law or upon a question which was raised under the Federal Constitution, 8emble, that the action of the Supreme Court of the State in dismissing a writ of error to the judgment for want of jurisdiction, upon the express ground that no question under the state or federal constitutions was involved in the judgment, would warrant this court in concluding that the judgment had a non-federal basis only. Where the judgment of a state court may rest upon either a federal or a non-federal ground, and the basis actually adopted does not appear by the state court's opinion or otherwise, this court has no jurisdiction to review. Dismissed. THE case is stated in the opinion.

The Cuyahoga River Power Company, plaintiff in error, was chartered under the laws of Ohio to build and maintain a system of dams, canals, and locks in the Big Cuyahoga river for the generation of electricity for light, heat, and other purposes. The corporation was granted authority to acquire by condemnation or purchase property necessary for the conduct of its business. In July, 1911, the Power Company commenced this action against the Northern Realty Company, one of the defendants in error, to condemn a large tract of land owned by it adjacent to the river. After the suit was brought this land was sold by the defendant company and was ultimately acquired by the Northern Ohio Traction & Light Company, chartered by the state to operate an interurban electric railway, and upon the land thus bought by it after the commencement of the suit that company, for its charter purposes, built and was operating two large power plants. Upon its own motion the Traction Company was made a party to the pending suit for expropriation. In conformity with the Ohio statutes regulating the procedure in eminent domain, four preliminary questions were required to be passed upon by the court without a jury, and, if decided in favor of the plaintiff, a jury was then required to determine the question of compensation. The four preliminary questions were these: (a) the existence of the petitioning corporation, (b) its right to make the appropriation, (c) its inability to agree as to the compensation to be paid for the property, and (d) the necessity for the appropriation. The defendants not only relied upon these four preliminary propositions, but also resisted the taking on the ground that a condemnation of the land under the petition of the Power Company would be inconsistent with and destructive of the public use to which the land had been applied by the Traction Company. The court did not come to a jury trial on the question of compensation because, after hearing evidence on the preliminary issues, on motion of the defendants it entered an order dismissing the petition, no reason for such decision having been expressed. The case was taken to the court of appeals, it being assigned as error that the trial court had erred in its rulings on the four preliminary questions, and it was further alleged that the refusal of the court to order the condemnation of the land upon the theory that it was not subject to be condemned because, after the suit had been brought, it had been acquired by the Traction Company and by it dedicated to a public use, constituted an impairment of the contract rights of the plaintiff and a taking of its property without due process of law, in violation of the Constitution of the United States. Following a judgment of affirmance without a written opinion, the Power Company applied to the supreme court of the state to direct the court of appeals to certify the record for review, which was denied, and a writ of error which was prosecuted to the court of appeals from the supreme court was dismissed for want of jurisdiction for the stated ground that the case did not 'involve any question arising under the Constitution of the United States or the state of Ohio.' Because of the asserted denial of the alleged Federal rights referred to the case is here, the writ of error being directed to the court of appeals. Our jurisdiction to review is challenged by a motion to dismiss, based upon two grounds which we consider separately. 1. It is contended that as, under § 237 of the Judicial Code [36 Stat. at L. 1156, chap. 231, Comp. Stat. 1916, § 1214], we have jurisdiction to review only final judgments of the highest court of the state in which a decision could be had, the writ of error should have been prosecuted to the supreme court of Ohio. In view, however, of the denial by that court of the application to direct the court of appeals to certify the record for review, and its order dismissing the writ of error for want of jurisdiction, the contention is without merit Stratton v. Stratton, 239 U. S. 55, 60 L. ed. 142, 36 Sup. Ct. Rep. 26; Valley S. S. Co. v. Wattawa, 241 U. S. 642, 60 L. ed. 1217, 36 Sup. Ct. Rep. 447; Second Nat. Bank v. First Nat. Bank, 242 U. S. 600, 61 L. ed. 518, 37 Sup. Ct. Rep. 236. 2. It is contended that, conceding the existence of Federal questions in the case, nevertheless as there were independent state grounds broad enough to sustain the judgment, there is no jurisdiction. We think the contention is sound. Despite some suggestion to the contrary it is certain that the four preliminary propositions concerned purely local law, and if decided adversely to the plaintiff, were broad enough to sustain the judgment irrespective of the merits of the Federal question which, it is insisted, was involved in the particular defense made by the Traction Company concerning the public character of the use to which it had applied the property and the consequent want of authority to take it for the benefit of the Power Company, which was submitted to the court along with the preliminary questions. Leaving aside any inference sustaining the view that the supreme court treated the preliminary questions as having been adversely decided and the constitutional questions as having been eliminated when it refused to order up the record for review, that conclusion is sustained by its express declaration, made in refusing the writ of error, that there was no question under the state or Federal Constitution involved,—a conclusion which, if it had not been in so many words declared, would by necessary implication have resulted from the dismissal of the writ of error for want of jurisdiction, since, under the Constitution and laws of Ohio, if a question under the Constitution of the United States or the state Constitution had existed, the duty to take jurisdiction would have been obvious. But assuming that we are not controlled by the statement of the supreme court of Ohio on this subject, and must determine it upon our own conception as to what was done by the court whose judgment is under review, the result would be the same. We so conclude because, looked at from the point of view of the action of the trial court and of the court of appeals, the case presents the single question of what principle is to be applied where, from an absence of an opinion expressed by the court below, it is impossible to say whether its judgment was rested upon state questions adequate to sustain it independent of the Federal questions, or upon such Federal questions, both being in the case. But the rule which controls such a situation has long prevailed and was clearly expressed in Allen v. Arguimbau, 198 U. S. 149, 154, 155, 49 L. ed. 990, 993, 25 Sup. Ct. Rep. 622, where a writ of error to the supreme court of Florida was dismissed, as follows: 'The supreme court of Florida gave no opinion, and, therefore, we are left to conjecture as to the grounds on which the pleas were held to be bad; but if the judgment rested on two grounds, one involving a Federal question and the other not, or if it does not appear on which of two grounds the judgment was based, and the ground independent of a Federal question is sufficient in itself to sustain it, this court will not take jurisdiction. Dibble v. Bellingham Bay Land Co. 163 U. S. 63, 41 L. ed. 72, 16 Sup. Ct. Rep. 939; Klinger v. Missouri, 13 Wall. 257, 20 L. ed. 635; Johnson v. Risk, 137 U. S. 300, 34 L. ed. 683, 11 Sup. Ct. Rep. 111;' Bachtel v. Wilson, 204 U. S. 36, 51 L. ed. 357, 27 Sup. Ct. Rep. 243; Adams v. Russell, 229 U. S. 353, 57 L. ed. 1224, 33 Sup. Ct. Rep. 846. Dismissed for want of jurisdiction. Mr. Justice Day and Mr. Justice Clarke took no part in the consideration and decision of this case.

246.US.231

The "Call" rule of the Board of Trade of Chicago, prohibiting members of the Board from purchasing or offering to purchase, during the period between the session of the Board termed the "Cal" and the opening of the regular session of the next business day, grain "to arrive," at a price other than the closing bid at the "Call," does not violate the Anti-Trust Law. A rule or agreement by which men occupying strong positions in a branch of trade fix prices at which they will buy or sell during an important part of the business day is not necessarily an illegal restraint of trade under the Anti-Trust Law. Every agreement concerning or regulating trade restrains; and the true test of legality is whether the restraint is such as merely regulates, and perhaps thereby promotes, competition, or whether it is such as may suppress or even destroy competition. To determine this question, the court must ordinarily consider the facts peculiar to the business, its condition before and after the restraint was imposed, the nature of the restraint and iWs effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts, not because a good intention will save an otherwise objectionable regulation or the reverse, but because knowledge of intent may help the court to interpret facts and predict consequences. It was therefore error for the District Court to strike from the answer in this case allegations concerning the history and purpose of the "Call" rule and to exclude evidence on that subject. The rule of the Board of Trade here involved by nature is a restriction merely upon the period of price making; in scope it applies during a small part only of the business day, to a small part only of the grain shipped from day to day to Chicago, to an even smaller part of the day's sales, and not at all to grain shipped to any of numerous other available markets; it has had no appreciable effect upon general market prices, nor has it materially affected the total volume of grain coming to Chicago, but, within the narrow limits of its operation, it has helped to improve market conditions in a number of ways. Reversed.

Chicago is the leading grain market in the world. Its Board of Trade is the commercial center through which most of the trading in grain is done. The character of the organization is described in Board of Trade v. Christie Grain & Stock Co., 198 U. S. 236, 25 Sup. Ct. 637, 49 L. Ed. 1031. Its 1600 members include brokers, commission merchants, dealers, millers, maltsters, manufacturers of corn products and proprietors of elevators. Grains there dealt in are graded according to kind and quality and are sold usually 'Chicago weight, inspection and delivery.' The standard forms of trading are: (a) Spot sales; that is, sales of grain already in Chicago in railroad cars or elevators for immediate delivery by order on carrier or transfer of warehouse receipt. (b) Future sales; that is, agreements for delivery later in the current or in some future month. (c) Sales 'to arrive'; that is, agreements to deliver on arrival grain which is already in transit to Chicago or is to be shipped there within a time specified. On every business day sessions of the Board are held at which all bids and sales are publicly made. Spot sales and future sales are made at the regular sessions of the Board from 9:30 a. m. to 1:15 p. m., except on Saturdays, when the session closes at 12 m. Special sessions, termed the 'call,' are held immediately after the close of the regular session, at which sales 'to arrive' are made. These sessions are not limited as to duration, but last usually about half an hour. At all these sessions transactions are between members only; but they may trade either for themselves or on behalf of others. Members may also trade privately with one another at any place, either during the sessions or after, and they may trade with nonmembers at any time except on the premises occupied by the Board.1 Purchases of grain 'to arrive' are made argely from country dealers and farmers throughout the whole territory tributary to Chicago, which includes besides Illinois and Iowa, Indiana, Ohio, Wisconsin, Minnesota, Missouri, Kansas, Nebraska, and even South and North Dakota. The purchases are sometimes the result of bids to individual country dealers made by telegraph or telephone either during the sessions or after; but most purchases are made by the sending out from Chicago by the afternoon mails to hundreds of country dealers, offers to buy at the prices named, any number of carloads, subject to acceptance before 9:30 a. m. on the next business day. In 1906 the Board adopted what is known as the 'call' rule. By it members were prohibited from purchasing or offering to purchase, during the period between the close of the call and the opening of the session on the next business day, any wheat, corn, oats or rye 'to arrive' at a price other than the closing bid at the call. The call was over, with rare exceptions, by 2 o'clock. The change effected was this: Before the adoption of the rule, members fixed their bids throughout the day at such prices as they respectively saw fit; after the adoption of the rule, the bids had to be fixed at the day's closing bid on the call until the opening of the next session. In 1913 the United States filed in the District Court for the Northern District of Illinois, this suit against the Board and its executive officers and directors, to enjoin the enforcement of the call rule, alleging it to be in violation of the Anti-Trust Law of July 2, 1890, c. 647, 26 Stat. 209. The defendants admitted the adoption and enforcement of the call rule, and averred that its purpose was not to prevent competition or to control prices, but to promote the convenience of members by restricting their hours of business and to break up a monopoly in that branch of the grain trade acquired by four or five warehousemen in Chicago. On motion of the government the allegations concerning the purpose of establishing the regulation were stricken from the record. The case was then heard upon evidence; and a decree was entered which declared that defendants became parties to a combination or conspiracy to restrain interstate and foreign trade and commerce 'by adopting, acting upon and enforcing' the 'call' rule; and enjoined them from* acting upon the same or from adopting or acting upon any similar rule. No opinion was delivered by the District Judge. The government proved the existence of the rule and described its application and the change in business practice involved. It made no attempt to show that the rule was designed to or that it had the effect of limiting the amount of grain shipped to Chicago; or of retarding or accelerating shipment; or if raising or depressing prices; or of discriminating against any part of the public; or that it resulted in hardship to any one. The case was rested upon the bald proposition, that a rule or agreement by which men occupying positions of strength in any branch of trade, fixed prices at which they would buy or sell during an important part of the business day, is an illegal restraint of trade under the Anti-Trust Law. But the legality of an agreement or regulation cannot be determined by so simple a test, as whether it restrains competition. Every agreement concerning trade, every regulation of trade, restrains. To bind, to restrain, is of their very essence. The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be att ined, are all relevant facts. This is not because a good intention will save an otherwise objectionable regulation or the reverse; but because knowledge of intent may help the court to interpret facts and to predict consequences. The District Court erred, therefore, in striking from the answer allegations concerning the history and purpose of the call rule and in later excluding evidence on that subject. But the evidence admitted makes it clear that the rule was a reasonable regulation of business consistent with the provisions of the Anti-Trust Law. First. The nature of the rule: The restriction was upon the period of price-making. It required members to desist from further price-making after the close of the call until 9:30 a. m. the next business day; but there was no restriction upon the sending out of bids after close of the call. Thus it required members who desired to buy grain 'to arrive' to make up their minds before the close of the call how much they were willing to pay during the interval before the next session of the Board. The rule made it to their interest to attend the call; and if they did not fill their wants by purchases there, to make the final bid high enough to enable them to purchase from country dealers. Second. The scope of the rule: It is restricted in operation to grain 'to arrive.' It applies only to a small part of the grain shipped from day to day to Chicago, and to an even smaller part of the day's sales; members were left free to purchase grain already in Chicago from any one at any price throughout the day. It applies only during a small part of the business day; members were left free to purchase during the sessions of the Board grain 'to arrive,' at any price, from members anywhere and from nonmembers anywhere except on the premises of the Board. It applied only to grain shipped to Chicago; members were left free to purchase at any price throughout the day from either members or non-members, grain 'to arrive' at any other market. Country dealers and farmers had available in practically every part of the territory called tributary to Chicago some other market for grain 'to arrive.' Thus Missouri, Kansas, Nebraska and parts of Illinois are also tributary to St. Louis;Nebraska and Iowa, to Omaha; Minnesota, Iowa, South and North Dakota, to Minneapolis or Duluth; Wisconsin and parts of Iowa and of Illinois, to Milwaukee; Ohio, Indiana and parts of Illinois, to Cincinnati; Indiana and parts of Illinois, to Louisville. Third. The effects of the rule: As it applies to only a small part of the grain shipped to Chicago and to that only during a part of the business day and does not apply at all to grain shipped to other markets, the rule had no appreciable effect on general market prices; nor did it materially affect the total volume of grain coming to Chicago. But within the narrow limits of its operation the rule helped to improve market conditions thus: (a) It created a public market for grain 'to arrive.' Before its adoption, bids were made privately. Men had to buy and sell without adequate knowledge of actual market conditions. This was disadvantageous to all concerned, but particularly so to country dealers and farmers. (b) It brought into the regular market hours of the Board sessions, more of the trading in grain 'to arrive.' (c) It brought buyers and sellers into more direct relations; because on the call they gathered together for a free and open interchange of bids and offers. (d) It distributed the business in grain 'to arrive' among a far larger number of Chicago receivers and commission merchants than had been the case there before. (e) It increased the number of country dealers engaging in this branch of the business; supplied them more regularly with bids from Chicago; and also increased the number of bids received by them from competing markets. (f) It eliminated risks necessarily incident to a private market, and thus enabled country dealers to do business on a smaller margin. In that way the rule made it possible for them to pay more to farmers without raising the price to consumers. (g) It enabled country dealers to sell some grain to arrive which they would otherwise have been obliged either to ship to Chicago commission merchants or to sell for 'future delivery.' (h) It enabled those grain merchants of Chicago who sell to millers and exporters, to trade on a smaller margin and by paying more for grain or selling it for less, to make the Chicago market more attractive for both shippers and buyers of grain. (i) Incidentally it facilitated trading 'to arrive' by enabling those engaged in these transactions to fulfill their contracts by tendering grain arriving at Chicago on any railroad, whereas formerly shipments had to be made over the particular railroad designated by the buyer. The restraint imposed by the rule is less severe than that sustained in Anderson v. United States, 171 U. S. 604, 19 Sup. Ct. 50, 43 L. Ed. 300. Every Board of Trade and nearly every trade organization imposes some restrainst upon the conduct of business by its members. Those relating to the hours in which business may be done are common; and they make a special appeal where, as here, they tend to shorten the working day or, at least, limit the period of most exacting activity. The decree of the District Court is reversed with directions to dismiss the bill. Reversed. Mr. Justice McREYNOLDS took no part in the consideration or decision of this case.

243.US.188

Employment in guarding tools and materials intended for use in the construction of a new railroad station and new tracks which when finished will be used in interstate *commerce, has no such direct relation to interstate transportation as will afford basis for applying the Federal Employers' Liability Act in case of accident and death. Pedersen v. Delaware, Lackawanna & Western R. R. Co., 229 U. S. 146, 152. He who assails a statute as unconstitutional must show that his right is infringed by it; where, however, a statute so regulates the correlative rights of two classes-as employers and employees-that if void as to one it must be void as to the other, complaint of a party belonging to one class may require an examination of the statute in both aspects. The New York Workmen's Compensation Law, Laws 1913, c. 816; Laws 1014, chaps. 41, 316, provides an exclusive system to govern the liabilities of employers and the rights of employees, and their dependents, in respect of compensation for disabling injuries and death caused by accident (not due to the willful intent or the intoxication of the employee) in certain employments, classed as hazardous; the duty of employers to compensate is made absolute; the compensation which employers must pay and employees (or their dependents, in death. cases,) must accept in satisfaction, is measured by a prescribed scale, based on loss of earning power, gauged by the previous wage, and the nature and duration of the disability or, in case of death, the dependency of the beneficiaries; the amounts fixed are apparently moderate and reasonable and the means of collection, through administrative proceedings subject to judicial review of law questions, are apparently economical, expeditious and fair; employers are required to furnish security against future liabilities; and the act is prospective. Held: (1) That neither (a) in rendering the employer liable irrespective of the doctrines of negligence, contributory negligence, assumption of risk and negligence of fellow servants, nor (b) in depriving the employee, or his dependents, of the higher damages which, in some cases, might be recovered under those doctrines, can the act be said to violate due process. (2) That viewed from the standpoint of natural justice, the system provided by the act in lieu of former rules is neither arbitrary nor unreasonable. (3) That the exclusion of farm laborers and domestic servants from the scheme of the act may not be judicially declared an arbitrary classification, violating the equal protection of the law. The common-law rules respecting the rights and liabilities of employer and employee in accident cases, viz., negligence, assumption of risk, contributory negligence, fellow-servant doctrine, as rules defining legal duty and guiding future conduct, may be altered by state legislation, and even set aside entirely-at least if some reasonably just substitute be provided. Since the matter of compensation for disability or death incurred in the course of hazardous employments is of direct interest to the public as a matter affecting the common welfare, the liberty of employer and employee to agree upon such compensation as part of the terms of employment is subject to be restricted by the state police power. The denial by a State of trial by jury is not inconsistent with due process of law, within the meaning of the Fourteenth Amendment. The making of a deposit of cash and securities in obedience to the New York Workmen's Compensatiofh Act, accompanied by an express reservation of all contentions respecting the invalidity of the act, does not estop the depositor from questioning its constitutionality. Under the power to establish a compulsory Workmen's Compensation System, the State may require employers to furnish satisfactory proof of financial ability to pay compensation in future and may require them to deposit reasonable amounts of securities to insure such payments. Section 50 of the New York Workmen's Compensation Law requires the employer to secure payment of compensation either by state insurance, or by insurance by an authorized corporation or association, or by furnishing satisfactory proof to the state commission ;of his financial ability to 'pay, in which case the commission may, in its discretion, require him to deposit securities of a kind prescribed by the state insurance law, in an amount to be determined by the commission. Held: (1) That in passing on these provisions the court will presume that the method of self-insurance will be open to all employers, on reasonable terms within the power of the State to impose. (2) That, viewed as optional alternatives, the other modes of insurance are free from constitutional objections as regards employers. (3) That such an option is not inconsistent with the constitutional rights of employees, there being no ground to presume that any of the methods of security would prove inadequate to safeguat J their interests. 169 App. Div. 903; 216 N. Y. 653, affirmed.

A proceeding was commenced by defendant in error before the Workmen's Compensation Commission of the State of New York, established by the Workmen's Compensation Law of that state,1 to recover compensation from the New York Central & Hudson River Railroad Company for the death of her husband, Jacob White, who lost his life September 2, 1914, through an accidental injury arising out of and in the course of his employment under that company. The Commission awarded compensation in accordance with the terms of the law; its award was affirmed, without opinion, by the appellate division of the supreme court for the third judicial department, whose order was affirmed by the court of appeals, without opinion. 169 App. Div. 903, 152 N. Y. Supp. 1149, 216 N. Y. 653, 110 N. E. 1051. Federal questions having been saved, the present writ of error was sued out by the New York Central Railroad Company, successor, through a consolidation of corporations, to the rights and liabilities of the employing company. The writ was directed to the appellate division, to which the record and proceedings had been remitted by the court of appeals. Sioux Remedy Co. v. Cope, 235 U. S. 197, 200, 59 L. ed. 193, 196, 35 Sup. Ct. Rep. 57. The errors specified are based upon these contentions: (1) that the liability, if any, of the railroad company for the death of Jacob White, is defined and limited exclusively by the provisions of the Federal Employers' Liability Act of April 22, 1908, chap. 149, 35 Stat. at L. 65, Comp. Stat. 1913, § 8657, and (2) that to award compensation to defendant in error under the provisions of the Workmen's Compensation Law would deprive plaintiff in error of its property without due process of law, and deny to it the equal protection of the laws, in contravention of the 14th Amendment. The first point assumes that the deceased was employed in interstate commerce at the time he received the fatal injuries. According to the record, he was a night watchman, charged with the duty of guarding tools and materials intended to be used in the construction of a new station and new tracks upon a line of interstate railroad. The Commission found, upon evidence fully warranting the finding, that he was on duty at the time, and at a place not outside of the limits prescribed for the performance of his duties; that he was not engaged in interstate commerce; and that the injury received by him and resulting in his death was an accidental injury arising out of and in the course of his employment. The admitted fact that the new station and tracks were designed for use, when finished, in interstate commerce, does not bring the case within the Federal act. The test is, 'Was the employee at the time of the injury engaged in interstate transportation, or in work so closely related to it as to be practically a part of it?' Shanks v. Delaware, L. & W. R. Co. 239 U. S. 556, 558, 60 L. ed. 436, 438, L.R.A.1916C, 797, 31 Sup. Ct. Rep. 188. Decedent's work bore no direct relation to interstate transportation, and had to do solely with construction work, which is clearly distinguishable, as was pointed out in Pedersen v. Delaware, L. & W. R. Co. 229 U. S. 146, 152, 57 L. ed. 1125, 1128, 33 Sup. Ct. Rep. 648, Ann. Cas. 1914C, 153, 3 N. C. C. A. 779. And see Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 177, 180, 60 L. ed. 941, 942, 36 Sup. Ct. Rep. 517, 11 N. C. C. A. 992; Raymond v. Chicago, M. & St. P. R. Co. this day decided [243 U. S. 43, 61 L. ed. 583, 37 Sup. Ct. Rep. 268]. The first point, therefore, is without basis in fact. We turn to the constitutional question. The Workmen's Compensation Law of New York establishes forty-two groups of hazardous employments, defines 'employee' as a person engaged in one of these employments upon the premises, or at the plant, or in the course of his employment away from the plant of his employer, but excluding farm laborers and domestic servants; defines 'employment' as including employment only in a trade, business, or occupation carried on by the employer for pecuniary gain, 'injury' and 'personal injury' as meaning only accidental injuries arising out of and in the course of employment, and such disease or infection as naturally and unavoidably may result therefrom; and requires every employer subject to its provisions to pay or provide compensation according to a prescribed schedule for the disability or death of his employee resulting from an accidental personal injury arising out of and in the course of the employment, without regard to fault as a cause, except where the injury is occasioned by the wilful intention of the injured employee to bring about the injury or death of himself or of another, or where it results solely from the intoxication of the injured employee while on duty, in which cases neither the injured employee nor any dependent shall receive compensation. By § 11 the prescribed liability is made exclusive, except that, if an employer fail to secure the payment of compensation as provided in § 50, an injured employee, or his legal representative, in case death results from the injury, may, at his option, elect to claim compensation under the act, or to maintain an action in the courts for damages, and in such an action it shall not be necessary to plead or prove freedom from contributory negligence, nor may the defendant plead as a defense that the injury was caused by the negligence of a fellow servant, that the employee assumed the risk of his employment, or that the injury was due to contributory negligence. Compensation under the act is not regulated by the measure of damages applied in negligence suits, but, in addition to providing surgical, or other like treatment, it is based solely on loss of earning power, being graduated according to the average weekly wages of the injured employee and the character and duration of the disability, whether partial or total, temporary or permanent; while in case the injury causes death, the compensation is known as a death benefit, and includes funeral expenses, not exceeding $100, payments to the surviving wife (or dependent husband) during widowhood (or dependent widowerhood) of a percentage of the average wages of the deceased, and if there be a surviving child or children under the age of eighteen years an additional percentage of such wages for each child until that age is reached. There are provisions invalidating agreements by employees to waive the right to compensation, prohibiting any assignment, release, or commutation of claims for compensation or benefits except as provided by the act, exempting them from the claims of creditors, and requiring that the compensation and benefits shall be paid only to employees or their dependents. Provision is made for the establishment of a Workmen's Compensation Commission2 with administrative and judicial functions, including authority to pass upon claims to compensation on notice to the parties interested. The award or decision of the Commission is made subject to an appeal, on questions of law only, to the appellate division of the supreme court for the third department, with an ultimate appeal to the court of appeals in cases where such an appeal would lie in civil actions. A fund is created, known as 'the state insurance fund,' for the purpose of insuring employers against liability under the law, and assuring to the persons entitled the compensation thereby provided. The fund is made up primarily of premiums received from employers, at rates fixed by the Commission in view of the hazards of the different classes of employment, and the premiums are to be based upon the total pay roll and number of employees in each class at the lowest rate consistent with the maintenance of a solvent state insurance fund and the creation of a reasonable surplus and reserve. Elaborate provisions are laid down for the administration of this fund. By § 50, each employer is required to secure compensation to his employees in one of the following ways: (1) By insuring and keeping insured the payment of such compensation in the state fund; or (2) through any stock corporation or mutual association authorized to transact the business of workmen's compensation insurance in the state; or (3) 'by furnishing satisfactory proof to the Commission of his financial ability to pay such compensation for himself, in which case the Commission may, in its discretion, require the deposit with the Commission of securities of the kind prescribed in § 13 of the Insurance Law, in an amount to be determined by the Commission, to secure his liability to pay the compensation provided in this chapter.' If an employer fails to comply with this section, he is made liable to a penalty in an amount equal to the pro rata premium that would have been payable for insurance in the state fund during the period of noncompliance; besides which, his injured employees or their dependents are at liberty to maintain an action for damages in the courts, as prescribed by § 11. In a previous year, the legislature enacted a compulsory compensation law applicable to a limited number of specially hazardous employments, and requiring the employer to pay compensation without regard to fault. Laws 1910, chap. 674. This was held by the court of appeals in Ives v. South Buffalo R. Co. 201 N. Y. 271, 34 L.R.A.(N.S.) 162, 94 N. E. 431, Ann. Cas. 1912B, 156 1 N. C. C. A. 517, to be invalid because in conflict with due process of law provisions of the state Constitution and of the 14th Amendment. Thereafter, and in the year 1913, a constitutional amendment was adopted, effective January 1, 1914, declaring: 'Nothing contained in this Constitution shall be construed to limit the power of the legislature to enact laws for the protection of the lives, health, or safety of employees; or for the payment, either by employers, or by employers and employees or otherwise, either directly or through a state or other system of insurance or otherwise, of compensation for injuries to employees or for death of employees resulting from such injuries without regard to fault as a cause thereof, except where the injury is occasioned by the wilful intention of the injured employee to bring about the injury or death of himself or of another, or where the injury results solely from the intoxication of the injured employee while on duty; or for the adjustment, determination and settlement, with or without trial by jury, of issues which may arise under such legislation; or to provide that the right of such compensation, and the remedy therefor shall be exclusive of all other rights and remedies for injuries to employees or for death resulting from such injuries; or to provide that the amount of such compensation for death shall not exceed a fixed or determinable sum; provided that all moneys paid by an employer to his employees or their legal representatives, by reason of the enactment of any of the laws herein authorized, shall be held to be a proper charge in the cost of operating the business of the employer.' In December, 1913, the legislature enacted the law now under consideration (Laws 1913, chap. 816), and in 1914 re-enacted it (Laws 1914, chap. 41) to take effect as to payment of compensation on July 1 in that year. The act was sustained by the court of appeals as not inconsistent with the 14th Amendment in Jensen v. Southern P. Co. 215 N. Y. 514, L.R.A.1916A, 403, 109 N. E. 600, Ann. Cas. 1916B, 276; and that decision was followed in the case at bar. The scheme of the act is so wide a departure from common-law standards respecting the responsibility of employer to employee that doubts naturally have been raised respecting its constitutional validity. The adverse considerations urged or suggested in this case and in kindred cases submitted at the same time are: (a) That the employer's property is taken without due process of law, because he is subjected to a liability for compensation without regard to any neglect or default on his part or on the part of any other person for whom he is responsible, and in spite of the fact that the injury may be solely attributable to the fault of the employee; (b) that the employee's rights are interfered with, in that he is prevented from having compensation for injuries arising from the employer's fault commensurate with the damages actually sustained, and is limited to the measure of compensation prescribed by the act; and (c) that both employer and employee are deprived of their liberty to acquire property by being prevented from making such agreement as they choose respecting the terms of the employment. In support of the legislation, it is said that the whole common-law doctrine of employer's liability for negligence, with its defenses of contributory negligence, fellow servant's negligence, and assumption of risk, is based upon fictions, and is inapplicable to modern conditions of employment; that in the highly organized and hazardous industries of the present day the causes of accident are often so obscure and complex that in a material proportion of cases it is impossible by any method correctly to ascertain the facts necessary to form an accurate judgment, and in a still larger proportion the expense and delay required for such ascertainment amount in effect to a defeat of justice; that, under the present system, the injured workman is left to bear the greater part of industrial accident loss, which, because of his limited income, he is unable to sustain, so that he and those dependent upon him are overcome by poverty and frequently become a burden upon public or private charity; and that litigation is unduly costly and tedious, encouraging corrupt practices and arousing antagonisms between employers and employees. In considering the constitutional question, it is necessary to view the matter from the standpoint of the employee as well as from that of the employer. For, while plaintiff in error is an employer, and cannot succeed without showing that its rights as such are infringed (Plymouth Coal Co. v. Pennsylvania, 232 U. S. 571, 576, 59 L. ed. 713, 719, 34 Sup. Ct. Rep. 359; Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 576, 59 L. ed. 364, 368, 35 Sup. Ct. Rep. 167, 7 N. C. C. A. 570), yet, as pointed out by the court of appeals in the Jensen Case (215 N. Y. 526), the exemption from further liability is an essential part of the scheme, so that the statute, if invalid as against the employee, is invalid as against the employer. The close relation of the rules governing responsibility as between employer and employee to the fundamental rights of liberty and property is, of course, recognized. But those rules, as guides of conduct, are not beyond alteration by legislation in the public interest. No person has a vested interest in any rule of law, entitling him to insist that it shall remain unchanged for his benefit. Munn v. Illinois, 94 U. S. 113, 134, 24 L. ed. 77, 87; Hurtado v. California, 110 U. S. 516, 532, 28 L. ed. 232, 237, 4 Sup. Ct. Rep. 111, 292; Martin v. Pittsburg & L. E. R. Co. 203 U. S. 284, 294, 51 L. ed 184, 191, 27 Sup. Ct. Rep. 100, 8 Ann. Cas. 87; Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 50, 56 L. ed. 327, 346, 38 L.R.A.(N.S.) 44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875; Chicago & A. R. Co. v. Tranbarger, 238 U. S. 67, 76, 59 L. ed. 1204, 1210, 35 Sup. Ct. Rep. 678. The common law bases the employer's liability for in juries to the employee upon the ground of negligence; but negligence is merely the disregard of some duty imposed by law; and the nature and extent of the duty may be modified by legislation, with corresponding change in the test of negligence. Indeed, liability may be imposed for the consequences of a failure to comply with a statutory duty, irrespective of negligence in the ordinary sense; safety appliance acts being a familiar instance. St. Louis, I. M. & S. R. Co. v. Taylor, 210 U. S. 281, 295, 52 L. ed. 1061, 1068, 28 Sup Ct. Rep. 616, 21 Am. Neg. Rep. 464; Texas & P. R. Co. v. Rigsby, 241 U. S. 33, 39, 43, 60 L. ed. 874, 877, 878, 36 Sup. Ct. Rep 482. The fault may be that of the employer himself, or—most frequently—that of another for whose conduct he is made responsible according to the maxim respondeat superior. In the latter case the employer may be entirely blameless, may have exercised the utmost human foresight to safeguard the employee; yet, if the alter ego, while acting within the scope of his duties, be negligent,—in disobedience, it may be, of the employer's positive and specific command,—the employer is answerable for the consequences. It cannot be that the rule embodied in the maxim is unalterable by legislation. The immunity of the employer from responsibility to an employee for the negligence of a fellow employee is of comparatively recent origin, it being the product of the judicial conception that the probability of a fellow workman's negligence is one of the natural and ordinary risks of the occupation, assumed by the employee and presumably taken into account in the fixing of his wages. The earliest reported cases are Murray v. South Carolina R. Co. (1841) 1 McMull. L. 385, 398, 36 Am. Dec. 268; Farwell v. Boston & W. R. Corp. (1842) 4 Met. 49, 57, 38 Am. Dec. 339, 15 Am. Neg. Cas. 407; Hutchinson v. York, N. & B. R. Co. (1850) L. R. 5 Exch. 343, 351, 19 L. J. Exch. N. S. 296, 299, 14 Jur. 837, 840, 6 Eng. Ry. & C. Cas. 580; Wigmore v. Jay (1850) L. R. 5 Exch. 354, 19 L. J. Exch. N. S. 300, 14 Jur. 838, 841; Bartonshill Coal Co. v. Reid (1858) 3 Macq. H. L. Cas. 266, 284, 295, 4 Jur. N. S. 767, 6 Week Rep. 664, 19 Eng. Rul. Cas. 107. And see Randall v. Baltimore & O. R. Co. 109 U. S. 478, 483, 27 L. ed. 1003, 1005, 3 Sup. Ct Rep. 322; Northern P. R. Co. v. Herbert, 116 U. S. 642, 647, 29 L. ed. 755, 758, 6 Sup. Ct. Rep. 590. The doctrine has prevailed generally throughout the United States, but with material differences in different jurisdictions respecting who should be deemed a fellow servant and who a vice principal or alter ego of the master, turning sometimes upon refined distinctions as to grades and departments in the employment. See Knutter v. New York & N. J. Teleph. Co. 67 N. J. L. 646, 650-653, 58 L.R.A. 808, 52 Atl. 565, 12 Am. Neg. Rep. 109. It needs no argument to show that such a rule is subject to modification or abrogation by a state upon proper occasion. The same may be said with respect to the general doctrine of assumption of risk. By the common law the employee assumes the risks normally incident to the occupation in which he voluntarily engages; other and extraordinary risks and those due to the employer's negligence he does not assume until made aware of them, or until they become so obvious that an ordinarily prudent man would observe and appreciate them; in either of which cases he does assume them, if he continues in the employment without obtaining from the employer an assurance that the matter will be remedied; but if he receive such an assurance, then, pending performance of the promise, the employee does not, in ordinary cases, assume the special risk. Seaboard Air Line R. Co. v. Horton, 233 U. S. 492, 504, 58 L. ed. 1062, 1070, L.R.A.1915C, 1, 34 Sup. Ct. Rep. 635, Ann. Cas. 1915B, 475, 8 N. C. C. A. 834, 239 U. S. 595, 599, 60 L. ed 458, 461, 36 Sup. Ct. Rep. 180. Plainly, these rules, as guides of conduct and tests of liability, are subject to change in the exercise of the sovereign authority of the state. So, also, with respect to contributory negligence. Aside from injuries intentionally self-inflicted, for which the statute under consideration affords no compensation, it is plain that the rules of law upon the subject, in their bearing upon the employer's responsibility, are subject to legislative change; for contributory negligence, again, involves a default in some duty resting on the employee, and his duties are subject to modification. It may be added, by way of reminder, that the entire matter of liability for death caused by wrongful act, both within and without the relation of employer and employee, is a modern statutory innovation, in which the states differ as to who may sue, for whose benefit, and the measure of damages. But it is not necessary to extend the discussion. This court repeatedly has upheld the authority of the states to establish by legislation departures from the fellow-servant rule and other common-law rules affecting the employer's liability for personal injuries to the employee. Missouri P. R. Co. v. Mackey, 127 U. S. 205, 208, 32 L. ed. 107, 108, 8 Sup. Ct. Rep. 1161; Minneapolis & St. L. R. Co. v. Herrick, 127 U. S. 210, 32 L. ed. 109, 8 Sup. Ct. Rep. 1176; Minnesota Iron Co. v. Kline, 199 U. S. 593, 598, 50 L. ed. 322, 325, 26 Sup. Ct. Rep. 159, 19 Am. Neg. Rep. 625; Tullis v. Lake Erie & W. R. Co. 175 U. S. 348, 44 L. ed. 192, 20 Sup. Ct. Rep. 136; Louisville & N. R. Co. v. Melton, 218 U. S. 36, 53, 54 L. ed. 921, 928, 47 L.R.A.(N.S.) 84, 30 Sup. Ct. Rep. 676; Chicago, I. & L. R. Co. v. Hackett, 228 U. S. 559, 57 L. ed. 966, 33 Sup. Ct. Rep. 581; Wilmington Star Min. Co. v. Fulton, 205 U. S. 60, 73, 51 L. ed. 708, 715, 27 Sup. Ct. Rep. 412; Missouri P. R. Co. v. Castle, 224 U. S. 541, 544, 56 L. ed. 875, 878, 32 Sup. Ct. Rep. 606. A corresponding power on the part of Congress, when legislating within its appropriate sphere, was sustained in Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 56 L. ed 327, 38 L.R.A. (N.S.) 44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875. And see El Paso & N. E. R. Co. v. Gutierrez, 215 U. S. 87, 97, 54 L. ed. 106, 111, 30 Sup. Ct. Rep. 21; Baltimore & O. R. Co. v. Interstate Commerce Commission, 221 U. S. 612, 619, 55 L. ed. 878, 883, 31 Sup. Ct. Rep. 621. It is true that in the case of the statutes thus sustained there were reasons rendering the particular departures appropriate. Nor is it necessary, for the purposes of the present case, to say that a state might, without violence to the constitutional guaranty of 'due process of law,' suddenly set aside all common-law rules respecting liability as between employer and employee, without providing a reasonably just substitute. Considering the vast industrial organization of the state of New York, for instance, with hundreds of thousands of plants and millions of wage earners, each employer, on the one hand, having embarked his capital, and each employee, on the other, having taken up his particular mode of earning a livelihood, in reliance upon the probable permanence of an established body of law governing the relation, it perhaps may be doubted whether the state could abolish all rights of action, on the one hand, or all defenses, on the other, without setting up something adequate in their stead. No such question is here presented, and we intimate no opinion upon it. The statute under consideration sets aside one body of rules only to establish another system in its place. If the employee is no longer able to recover as much as before in case of being injured through the employer's negligence, he is entitled to moderate compensation in all cases of injury, and has a certain and speedy remedy without the difficulty and expense of establishing negligence or proving the amount of the damages. Instead of assuming the entire consequences of all ordinary risks of the occupation, he assumes the consequences, in excess of the scheduled compensation, of risks ordinary and extraordinary. On the other hand, if the employer is left without defense respecting the question of fault, he at the same time is assured that the recovery is limited, and that it goes directly to the relief of the designated beneficiary. And just as the employee's assumption of ordinary risks at common law presumably was taken into account in fixing the rate of wages, so the fixed responsibility of the employer, and the modified assumption of risk by the employee under the new system, presumably will be reflected in the wage scale. The act evidently is intended as a just settlement of a difficult problem, affecting one of the most important of social relations, and it is to be judged in its entirety. We have said enough to demonstrate that, in such an adjustment, the particular rules of the common law affecting the subject matter are not placed by the 14th Amendment beyond the reach of the lawmaking power of the state; and thus we are brought to the question whether the method of compensation that is established as a substitute transcends the limits of permissible state action. We will consider, first, the scheme of compensation, deferring for the present the question of the manner in which the employer is required to secure payment. Briefly, the statute imposes liability upon the employer to make compensation for disability or death of the employee resulting from accidental personal injury arising out of and in the course of the employment, without regard to fault as a cause except where the injury or death is occasioned by the employee's wilful intention to produce it, or where the injury results solely from his intoxication while on duty; it graduates the compensation for disability according to a prescribed scale based upon the loss of earning power, having regard to the previous wage and the character and duration of the disability; and measures the death benefits according to the dependency of the surviving wife, husband, or infant children. Perhaps we should add that it has no retrospective effect, and applies only to cases arising some months after its passage. Of course, we cannot ignore the question whether the new arrangement is arbitrary and unreasonable, from the standpoint of natural justice. Respecting this, it is important to be observed that the act applies only to disabling or fatal personal injuries received in the course of hazardous employment in gainful occupation. Reduced to its elements, the situation to be dealt with is this: Employer and employee, by mutual consent, engage in a common operation intended to be advantageous to both; the employee is to contribute his personal services, and for these is to receive wages, and, ordinarily, nothing more; the employer is to furnish plant, facilities, organization, capital, credit, is to control and mange the operation, paying the wages and other expenses, disposing of the product at such prices as he can obtain, taking all the profits, if any there be, and, of necessity, bearing the entire losses. In the nature of things, there is more or less of a probability that the employee may lose his life through some accidental injury arising out of the employment, leaving his widow or children deprived of their natural support; or that he may sustain an injury not mortal, but resulting in his total or partial disablement, temporary or permanent, with corresponding impairment of earning capacity. The physical suffering must be borne by the employee alone; the laws of nature prevent this from being evaded or shifted to another, and the statute makes no attempt to afford an equivalent in compensation. But, besides, there is the loss of earning power,—a loss of that which stands to the employee as his capital in trade. This is a loss arising out of the business, and, however it may be charged up, is an expense of the operation, as truly as the cost of repairing broken machinery or any other expense that ordinarily is paid by the employer. Who is to bear the charge? It is plain that, on grounds of natural justice, it is not unreasonable for the state, while relieving the employer from responsibility for damages measured by common-law standards and payable in cases where he or those for whose conduct he is answerable are found to be at fault, to require him to contribute a reasonable amount, and according to a reasonable and definite scale, by way of compensation for the loss of earning power incurred in the common enterprise, irrespective of the question of negligence, instead of leaving the entire loss to rest where it may chance to fall,—that is, upon the injured employee or his dependents. Nor can it be deemed arbitrary and unreasonable, from the standpoint of the employee's interest, to supplant a system under which he assumed the entire risk of injury in ordinary cases, and in others had a right to recover an amount more or less speculative upon proving facts of negligence that often were difficult to prove, and substitute a system under which, in all ordinary cases of accidental injury, he is sure of a definite and easily ascertained compensation, not being obliged to assume the entire loss in any case, but in all cases assuming any loss beyond the prescribed scale. Much emphasis is laid upon the criticism that the act creates liability without fault. This is sufficiently answered by what has been said, but we may add that liability without fault is not a novelty in the law. The common-law liability of the carrier, of the innkeeper, or him who employed fire or other dangerous agency or harbored a mischievous animal, was not dependent altogether upon questions of fault or negligence. Statutes imposing liability without fault have been sustained. St. Louis & S. F. R. Co. v. Mathews, 165 U. S. 1, 22, 41 L. ed. 611, 619, 17 Sup. Ct. Rep. 243; Chicago, R. I. & P. R. Co. v. Zernecke, 183 U. S. 582, 586, 46 L. ed. 339, 340, 22 Sup. Ct. Rep. 229. We have referred to the maxim, respondeat superior. In a well-known English case, Hall v. Smith, 2 Bing. 156, 160, 130 Eng. Reprint, 265, 9 J. B. Moore, 226, 2 L. J. C. P. 113, this maxim was said by Best, Ch. J., to be 'bottomed on this principle, that he who expects to derive advantage from an act which is done by another for him, must answer for any injury which a third person may sustain from it.' And this view has been adopted in New York. Cardot v. Barney, 63 N. Y. 281, 287, 20 Am. Rep. 533. The provision for compulsory compensation, in the act under consideration cannot be deemed to be an arbitrary and unreasonable application of the principle, so as to amount to a deprivation of the employer's property without due process of law. The pecuniary loss resulting from the employee's death or disablement must fall somewhere. It results from something done in the course of an operation from which the employer expects to derive a profit. In excluding the question of fault as a cause of the injury, the act in effect disregards the proximate cause and looks to one more remote,—the primary cause, as it may be deemed,—and that is, the employment itself. For this, both parties are responsible, since they voluntarily engage in it as coadventurers, with personal injury to the employee as a probable and foreseen result. In ignoring any possible negligence of the employee producing or contributing to the injury, the lawmaker reasonably may have been influenced by the belief that, in modern industry, the utmost diligence in the employer's service is in some degree inconsistent with adequate care on the part of the employee for his own safety; that the more intently he devotes himself to the work, the less he can take precautions for his own security. And it is evident that the consequences of a disabling or fatal injury are precisely the same to the parties immediately affected, and to the community, whether the proximate cause be culpable or innocent. Viewing the entire matter, it cannot be pronounced arbitrary and unreasonable for the state to impose upon the employer the absolute duty of making a moderate and definite compensation in money to every disabled employee, or, in case of his death, to those who were entitled to look to him for support, in lieu of the common-law liability confined to cases of negligence. This, of course, is not to say that any scale of compensation, however insignificant, on the one hand, or onerous, on the other, would be supportable. In this case, no criticism is made on the ground that the compensation prescribed by the statute in question is unreasonable in amount, either in general or in the particular case. Any question of that kind may be met when it arises. But, it is said, the statute strikes at the fundamentals of constitutional freedom of contract; and we are referred to two recent declarations by this court. The first is this: 'Included in the right of personal liberty and the right of private property partaking of the nature of each—is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established constitutional sense.' Coppage v. Kansas, 236 U. S. 1, 14, 59 L. ed. 441, 446 L.R.A.1915C, 960, 35 Sup. Ct. Rep. 240. And this is the other: 'It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [14th] Amendment to secure.' Truax v. Raich, 239 U. S. 33, 41, 60 L. ed. 131, 135, L.R.A.1916D, 545, 36 Sup. Ct. Rep. 7. It is not our purpose to qualify or weaken either of these declarations in the least. And we recognize that the legislation under review does measurably limit the freedom of employer and employee to agree respecting the terms of employment, and that it cannot be supported except on the ground that it is a reasonable exercise of the police power of the state. In our opinion it is fairly supportable upon that ground. And for this reason: The subject matter in respect of which freedom of contract is restricted is the matter of compensation for human life or limb lost or disability incurred in the course of hazardous employment, and the public has a direct interest in this as affecting the common welfare. 'The whole is no greater than the sum of all the parts, and when the individual health, safety, and welfare are sacrificed or neglected, the state must suffer.' Holden v. Hardy, 169 U. S. 366, 397, 42 L. ed. 780, 793, 18 Sup. Ct. Rep. 383. It cannot be doubted that the state may prohibit and punish self-maiming and attempts at suicide; it may prohibit a man from bartering away his life or his personal security; indeed, the right to these is often declared, in bills of rights, to be 'natural and inalienable;' and the authority to prohibit contracts made in derogation of a lawfully-established policy of the state respecting compensation for accidental death or disabling personal injury is equally clear. Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549, 571, 55 L. ed. 328, 340, 31 Sup. Ct. Rep. 259; Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 52, 56 L. ed. 327, 347, 38 L.R.A.(N.S.) 44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875. We have not overlooked the criticism that the act imposes no rule of conduct upon the employer with respect to the conditions of labor in the various industries embraced within its terms, prescribes no duty with regard to where the workmen shall work, the character of the machinery, tools, or appliances, the rules or regulations to be established, or the safety devices to be maintained. This statute does not concern itself with measures of prevention, which presumably are embraced in other laws. But the interest of the public is not confined to these. One of the grounds of its concern with the continued life and earning power of the individual is its interest in the prevention of pauperism, with its concomitants of vice and crime. And, in our opinion, laws regulating the responsibility of employers for the injury or death of employees, arising out of the employment, bear so close a relation to the protection of the lives and safety of those concerned that they properly may be regarded as coming within the category of police regulations. Sherlock v. Alling, 93 U. S. 99, 103, 23 L. ed. 819, 820; Missouri P. R. Co. v. Castle, 224 U. S. 541, 545, 56 L. ed. 875, 879, 32 Sup. Ct. Rep. 606. No question is made but that the procedural provisions of the act are amply adequate to afford the notice and opportunity to be heard required by the 14th Amendment. The denial of a trial by jury is not inconsistent with 'due process.' Walker v. Sauvinet, 92 U. S. 90, 23 L. ed. 678; Frank v. Mangum, 237 U. S. 309, 340, 59 L. ed. 960, 985, 35 Sup. Ct. Rep. 582. The objection under the 'equal protection' clause is not pressed. The only apparent basis for it is in the exclusion of farm laborers and domestic servants from the scheme. But, manifestly, this cannot be judicially declared to be an arbitrary classification, since it reasonably may be considered that the risks inherent in these occupations are exceptionally patent, simple, and familiar. Missouri, K. & T. R. Co. v. Cade, 233 U. S. 642, 650, 58 L. ed. 1135, 1137, 34 Sup. Ct. Rep. 678, and cases there cited. We conclude that the prescribed scheme of compulsory compensation is not repugnant to the provisions of the 14th Amendment and are brought to consider, next, the manner in which the employer is required to secure payment of the compensation. By § 50, this may be done in one of three ways: (a) State insurance; (b) insurance with an authorized insurance corporation or asso ciation; or (c) by a deposit of securities. The record shows that the predecessor of plaintiff in error chose the third method, and, with the sanction of the Commission, deposited securities to the amount of $300,000, under § 50, and $30,000 in cash as a deposit to secure prompt and convenient payment, under § 25, with an agreement to make a further deposit if required. This was accompanied with a reservation of all contentions as to the invalidity of the act, and had not the effect of preventing plaintiff in error from raising the questions we have discussed. The system of compulsory compensation having been found to be within the power of the state, it is within the limits of permissible regulation, in aid of the system, to require the employer to furnish satisfactory proof of his financial ability to pay the compensation, and to deposit a reasonable amount of securities for that purpose. The third clause of § 50 has not been, and presumably will not be, construed so as to give an unbridled discretion to the Commission; nor is it to be presumed that solvent employers will be prevented from becoming self-insurers on reasonable terms. No question is made but that the terms imposed upon this railroad company were reasonable in view of the magnitude of its operations, the number of its employees, and the amount of its pay roll (about $50,000,000 annually); hence no criticism of the practical effect of the third clause is suggested. This being so, it is obvious that this case presents no question as to whether the state might, consistently with the 14th Amendment, compel employers to effect insurance according to either of the plans mentioned in the first and second clauses. There is no such compulsion, since self-insurance under the third clause presumably is open to all employers on reasonable terms that it is within the power of the state to impose. Regarded as optional arrangements, for acceptance or rejection by employers unwilling to comply with that clause, the plans of insurance are unexceptionable from the constitutional standpoint. Manifestly, the employee is not injuriously affected in a constitutional sense by the provisions giving to the employer an option to secure payment of the compensation in either of the modes prescribed, for there is no presumption that either will prove inadequate to safeguard the employee's interests. Judgment affirmed.

246.US.58

An order of a state commission requiring the stoping of certain interstate trains for reception and discharge of passengers at a county seat of only 1500 population, upheld, in view of a statute, not directed adversely at interstate trains, but specifying the train service to be supplied to all county seats and evidencing a legislative estimate (not here confuted) of county seat needs. Serious doubt is expressed as to whether the order could be sustained, from the standpoint of the local requirements of the population merely, viz: as meeting a need for sleeping car service and as an accommodation to passengers using the trains in question to reach the city. The need of making fast time in competition with other railroads and in carrying the mail, held, not in this case to render the order unduly burdensome to interstate commerce, it appearing that the required stops would consume but a few minutes each, that stops are made voluntarily at all other county seats and some smaller places, and that there is a detour in the routing. Power in a state commission to order steps by interstate trains, not resulting in direct burden on interstate commerce, in pursuance of a statute not aimed at such trains but specifying train service required at county seats, may coexist with the duty imposed on carriers -respecting regulations for transportation facilities by the Hepburn Act of June 29, 1906, c. 3591, § 1, 34 Stat. 584, and the Act of June' 18, 1910, c. 309, § 7, 36 Stat. 546, and the jurisdiction of the Interstate Commerce Commission over such matters, if the order is not in conflict with regulations of the latter Commission. A railroad company which does not avail itself of an opportunity given by the state law to test the validity of an order of a state commission in the state or federal court, cannot be relieved from a cumulation of penalties due to its violations of the order while awaiting proceedings by the State. 169 S. W. Rep. 385, affirmed.

This is a suit by the State to compel the defendant railroad, the plaintiff in error, to stop two interstate trains, one numbered 17 and southbound, the other numbered 18 and northbound, at the City of Meridian, for a time sufficient to receive and let off passengers. Meridian is the County Seat of Bosque County and has a population of 1500. Two other trains of the defendant going each way stopped there daily, but the Railroad Commission of the State found that these were insufficient for the needs of business at that station and made the order that this suit seeks to have carried out. The statute of Texas giving to the Commission power to make such order contains a proviso that 'four trains each way, carrying passengers for hire, if so many are run daily, Sundays excepted, be required to stop as aforesaid at all county seat stations'—so that the Commission seems to have obeyed a statutory mandate. Art. 6676, (2), Vernon's Sayles' Texas Civil Statutes. Another article, 6672, imposes a penalty of not more than $5,000 for every failure to obey such lawful order, and this suit seeks to recover penalties as well. The trial Court confirmed the finding of the Commission that the present service is insufficient, and the order, and imposed a fine of $22,400, being $100 for each failure to stop. It stated the facts in great detail but it will not be necessary to repeat them here. The Court of Civil Appeals again confirmed the above finding and affirmed the judgment. The Supreme Court of the State refused to allow a writ of error, declaring itself unable to say that the conclusion of the lower Court was unwarranted as matter of law. This case does not require quite so critical an examination into the facts as was made in Mississippi R. R. Commission v. Illinois Central R. R. Co., 203 U. S. 335, 344, 345, 27 Sup. Ct. 90, 51 L. Ed. 209, and Atlantic Coast Line R. R. Co. v. Wharton, 207 U. S. 328, 330, 334, 335, 28 Sup. Ct. 121, 52 L. Ed. 230, in order to decide whether the judgment of the State Courts and Commission and, it would seem, of the legislature, was wrong. If the reasoning that prevailed with the Court of Civil Appeals were applied to Meridian simply in view of the number of its inhabitants there would be a serious question whether it could be sustained. For the consideration most emphasized was that no sleeping cars were attached to the local trains and that in order to make use of such accommodation on the trains in question passengers had to get in or out at stations from seven or eight to twelve or fifteen miles away. It was thought that when the railroad furnished such accommodations to a part of the public it was bound to furnish the same to all others—a very questionable proposition as applied. The other fact relied upon was that passengers not infrequently came on trains 17 and 18 destined for Meridian and had to get out at Morgan or Clifton, the next stations to the north and south. We repeat that whether these facts would justify an intermeddling with interstate trains in favor of a place of this size, merely as such, would be a serious question. But the State Court sustained the order as one required by statute in favor of county seats, up to the number of four trains each way, Sundays excepted. The law is not directed adversely at interstate trains, but expresses the specific judgment of the legisla ure as to the needs of the county seats, all of which, of course, it knew. If its judgment is correct, which we have no grounds for denying, the order may be justified, so far as its interference with interstate commerce is concerned, unless some other fact shows that the burden is too great. The only additional facts material to this point are that the defendant competes with railroads having shorter routes, that for that reason and in order to keep its contracts for the carriage of United States mails it has to make fast time—and that it has little or none to spare. On the other hand Meridian is the only county seat at which it does not stop, and it does stop at some smaller places, as well as make a detour in order to go through Houston. The time that would be taken would be four or five minutes for Number 17, and about 10 minutes for Number 18, according to the trial Court. The Court of Civil Appeals says in general terms from three to five. We are not prepared to say that the finding that there will be no unreasonable burden is wrong. It is urged that the power of the State Commission has been taken away by the Hepburn Amendment to the Act to Regulate Commerce (Act Feb. 4, 1887, c. 104, 24 Stat. 379), of June 29, 1906, c. 3591, § 1, 34 Stats. 584, and the further Act of June 18, 1910, c. 309, § 7, 36 Stats. 546, making it the duty of carriers, including sleeping car companies, to make reasonable regulations affecting the facilities for transportation, the Interstate Commerce Commission having jurisdiction over such matters. But the State requires certain services to county seats with an aim that is not directed against interstate trains as such. The statute is subordinate to the regulations of the Commission so far as it may lead to an incidental interference with such trains and in the absence of any conflict it may stand as here applied. See Chicago, Burlington & Quincy R. R. Co. v. Railroad Commission of Wisconsin, 237 U. S. 220, 233, 35 Sup. Ct. 560, 59 L. Ed. 926. The other point argued here is that the railroad could not be subjected to, at most, more than one penalty while the validity of the order was awaiting judicial determination. Ex parte Young, 209 U. S. 123, 147 28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764, being relied upon. But the statutes of Texas provided for a suit to test the validity of the order, in a court either of the State or of the United States, Art. 6657. Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362, 391, 392, 14 Sup. Ct. 1047, 38 L. Ed. 1014. Railroad Commission of Texas v. Galveston, Harrisburg & San Antonio Ry. Co., 51 Tex. Civ. App. 447, 112 S. W. 345. Eastern Texas R. R. Co. v. Railroad Commission (D. C.) 242 Fed. 300. The railroad company saw fit to await proceedings against it, and although the case in all its aspects, is somewhat extreme the judgment must be affirmed. Wadley Southern Ry. Co. v. Georgia, 235 U. S. 651, 669, 35 Sup. Ct. 214, 59 L. Ed. 405. Judgment affirmed. The CHIEF JUSTICE Mr. Justice McKENNA and Mr. Justice McREYNOLDS dissent.

243.US.412

The District Court is without jurisdiction over an order of the Interstate Commerce Commission, negative in substance and form, in which the Commission declined to exercise its authority under the "Panama Canal Act" of August 24, 1912, c. 390, § 11, 37 Stat. 560, 566, to extend the period fixed in the act for the divorcement of railroad and water carriers. Procter & Gamble Co. v. United States. 225 U. S. 282. 234 Fed. Rep. 682, affirmed.

This is a bill to prevent the enforcement of an order of the Interstate Commerce Commission. On December 2, 1913, the Commission issued a circular calling attention to the fact that the Act of August 24, 1912 (chap. 390, § 11, 37 Stat. at L. 560, 566, Comp. Stat. 1913, §§ 10,037, 8,567), known as the Panama Canal Act, prohibited, after July 1, 1914, any ownership by a railroad in any common carrier by water when the railroad might compete for traffic with the water carrier; and that the Commission was authorized to determine questions of fact as to such competition, and to extend the time beyond July 1, 1914, if the extension would not exclude or reduce competition on the water route. Notice was given that applications for extension of time should be filed by March 1, 1914. Thereupon, in January, 1914, the appellant filed a petition praying for a hearing as to whether the services of a steamboat line owned by it would be in violation of the above section and for an extension of time. It is the order issued upon this petition against which relief is sought. The facts other than the question whether they warrant the conclusion that the railroad and the steamboat line do or may compete are not disputed. The railroad extends from Jersey City to Buffalo, and there connects with the line of the Lehigh Valley Transportation Company, which runs vessels between Buffalo and Chicago and Milwaukee. The railroad company owns all the stock of the Transportation Company, but, with the exception of the interchange port of Buffalo, serves no point in common with the boats of the latter. It is, however, a party to certain fast-freightline arrangements and all-rail routes and joint rates to the ports served by its vessels. The effect of these connections and of the railroad's membership of the Lake Lines Association was held by the Commission to put the railroad in a position inimical to the best interests of the boat line, to deprive the latter of its initial rate-making power, and to determine by outside authority whether freight shall move by all rail or by lake and rail routes, and if by the latter, by which lake line. It was held that, by virtue of these arrangements, the railroad did or might compete with its boat line, and upon that decision the petition of the appellant was dismissed. 33 Inters. Com. Rep. 699, 706, 716; 37 Inters. Com. Rep. 77. Three judges sitting in the district court denied the injunction asked and dismissed the bill. 234 Fed. 682. Although they proceeded to discuss the merits of the case, they intimated at the outset a strong doubt whether, in any event, an injunction could be granted. If this doubt was well founded, there is nothing more to be said, since the ground of jurisdiction is gone. We assume that the question whether the facts found by the Commission present a case of real or possible competition within the meaning of the statute is a question of law that could not be conclusively answered by the Commission; but still there is nothing for a court of equity to enjoin if all that the Commission has done is to decline to extend the time during which the railroad can keep its boat line without risk. The order of the Commission was negative in substance as well as in form. Procter & G. Co. v. United States, 225 U. S. 282, 292, 293, 56 L. ed. 1091, 1095, 32 Sup. Ct. Rep. 761. The risk to which the railroad was left subject did not come from the order, but from the above-mentioned section of the Panama Canal Act (amending § 5 of the Act to Regulate Commerce [24 Stat. at L. 380, chap. 104, Comp. Stat. 1913, § 8567]), making each day of violation a separate offense, and the provision of the latter act, § 10, which imposes a possibly large fine. This risk is the same that it was before the order, or that it would have been if appellant had not applied to the Commission, except so far as the findings establish facts that we believe there is no desire to dispute. Without going further it appears to us plain that the decree of the District Court, dismissing the bill, was right. Decree affirmed.

242.US.532

This court is without jurisdiction to review a judgment of a state court under Rev. Stats., § 709, Jud. Code, § 237, upon the ground that a federal right was denied, when the claim of federal right relied on was refused consideration in that court because it was not asserted at a proper time or in a proper manner under the established state system of pleading and practice. The decision of the state court that a claim of federal right was not so presented is binding on this court when not rendered in a spirit of evasion for the purpose of defeating the federal right. In accordance with the foregoing principles, a party desiring to secure the benefits of the Federal Employers' Liability Act in an action in a state court, must claim them in apt time and in an appropriate manner under the state rules of pleading and practice. Writ of error to review 100 S. Car. 375, dismissed.

On December 10th, 1910, John J. Mims, a car inspector in the employ of the plaintiff in error, when attempting to cross a track to inspect a train of cars which had just arrived, was run down and killed by a switching engine at a public crossing in the city of Sumter, South Carolina. In April following this suit was commenced by the filing of a complaint, which charges actionable negligence and alleges that the defendant owned and operated a line of railway described as wholly within the state of South Carolina. There is nothing in the complaint tending to state a cause of action under the Federal law. To this complaint the defendant filed an answer which is a specific denial under the South Carolina Code of Civil Procedure and which contains two separate defenses. The first defense admits that Mims was killed at the time alleged, admits the paragraph alleging that the defendant, at the time of the accident complained of, owned and operated the line of railroad described as being wholly within the state of South Carolina, and denies all the other allegations of the complaint. The second defense is one of contributory negligence. Upon this complaint and answer the case went to trial, and when the testimony was all introduced the trial court granted a nonsuit, which was reversed by the supreme court of the state with an order remanding the case for a new trial. When the case was called for the second trial the defendant asked leave to amend its answer by pleading 'gross and wilful contributory negligence' on the part of deceased, which was granted, and the trial proceeded until plaintiff rested her case. Up to this time no claim had been made by defendant and no facts had been pleaded or evidence offered by either party from which it could be inferred that the deceased at the time of his death was engaged in interstate commerce, or that the Federal Employers' Liability Act was in any manner applicable to the case. When the plaintiff rested her case on the second trial, the defendant for the first time offered to introduce testimony which it is claimed, if admitted, would have tended to prove that the train which the deceased was in the act of approaching to inspect when he was killed 'was engaged in interstate commerce and that the deceased was in this respect and otherwise engaged in interstate commerce.' The trial court rejected this proffer of testimony on the ground that it came too late and was not relevant to any issue tendered by the pleadings in the case. No application was made for leave to amend the answer by adding the claim under the Federal law. The practice differs in the courts of the various states as to what testimony may be introduced under 'a specific denial,' such as was filed in this case, and the supreme court of South Carolina, while recognizing fully the ruling character of the Federal Employers' Liability Act when the facts making it applicable are properly pleaded, yet, upon full and obviously candid and competent consideration, decided, as we have seen, that, under the settled rules of pleading in that state, the evidence tendered was not admissible. The essential justice of this decision, which is the fundamental thing, commends it to our favor. The evidence admitted in the case shows that the train which the deceased was about to inspect when he was killed was a local freight train, with a run habitually, and on the morning of the accident complained of, wholly within the state of South Carolina. If the relation of the deceased to the traffic which this intrastate train carried was such as to give an interstate character to his service, that fact must have been known to the defendant from the day the accident occurred, and it could not possibly have been known to the plaintiff, and therefore surprise and delay certainly, and possibly defeat of plaintiff's claim under statutes of limitation, must have been the incvitable result of permitting the introduction of the proffered testimony late in the second trial, without the Federal right claimed from it having been 'specially set up and claimed' in the answer of the defendant. The plaintiff recovered a judgment, which the supreme court affirmed. This epitome of the action of the state court shows that the claim under the Federal statute now made was not presented until after the plaintiff had rested in the second trial of the case after it had been to the supreme court, and after the defendant, upon the opening of this second trial, had amended its answer by adding a third defense, without mentioning or in any manner attempting to plead the Federal claim. Even at this stage of the trial the assertion of the claim consisted only in a tender of testimony, without any application to amend the answer. To become the basis of a proceeding in error from this court to the supreme court of a state 'a right, privilege, or immunity' claimed under a statute of the United States must be 'especially set up and claimed,' and must be denied by the state court. Rev. Stat. § 709, Judicial Code, § 237 [36 Stat. at L. 1156, chap. 231, Comp Stat. 1913, § 1214]. This means that the claim must be asserted at the proper time and in the proper manner by pleading, motion, or other appropriate action under the state system of pleading and practice (Mutual L. Ins. Co. v. McGrew, 188 U. S. 291, 308, 47 L. ed. 480, 484, 63 L.R.A.33, 23 Sup. Ct. Rep. 375), and upon the question whether or not such a claim has been so asserted the decision of the state court is binding upon this court, when it is clear, as it is in this case, that such decision is not rendered in a spirit of evasion for the purpose of defeating the claim of Federal right. Central Vermont R. Co. v. White, 238 U. S. 507, 59 L. ed. 1433, 35 Sup. Ct. Rep. 865, Ann. Cas. 1916B, 252, 9 N. C. C. A. 265; John v. Paullin, 231 U. S. 583, 58 L. ed. 381, 34 Sup. Ct. Rep. 178; Erie R. Co. v. Purdy, 185 U. S. 148, 46 L. ed. 847, 22 Sup. Ct. Rep. 605; Layton v. Missouri, 187 U. S. 356, 47 L. ed. 214, 23 Sup. Ct. Rep. 137. The plaintiff in error mistakenly argues that, under recent decisions of this court, it is not necessary to claim the benefits of the Federal Employers' Liability Act in a pleading in a state court in ordet to obtain a review here of a decision denying or refusing to consider such a claim. Reference to the decisions relied upon shows that the Federal right was in terms claimed in the petition in Missouri, K. & T. R. Co. v. Wulf, 226 U. S. 570, 57 L. ed. 355, 33 Sup. Ct. Rep. 135, Ann. Cas. 1914B, 134, and Grand Trunk Western R. Co. v. Lindsay, 233 U. S. 42, 58 L. ed. 838, 34 Sup. Ct. Rep. 581, Ann. Cas. 1914C, 168, and that in St. Louis, I. M. & S. R. Co. v. Hesterly, 228 U. S. 702, 57 L. ed. 1031, 33 Sup. Ct. Rep. 703, the decision proceeds upon the statement that, since the supreme court of the state held the Federal question sufficiently raised and decided it, the objection that it was not saved was not open in this court. While it is true that the reports show that in St. Louis, S. F. & T. R. Co. v. Seale, 229 U. S. 156, 57 L. ed. 1129, 33 Sup. Ct. Rep. 651, Ann. Cas. 1914C, 156, and in Toledo, St. L. & W. R. Co. v. Slavin, 236 U. S. 454, 59 L. ed. 671, 35 Sup. Ct. Rep. 306, the Federal act was not specially referred to in the pleadings, yet they were in such form that the trial court, either without objection or over objection which the supreme court of the state refused to sustain, admitted testimony making it necessary to apply the Federal act in deciding each case. This, of course, was equivalent to holding that the pleadings in the trial court were in a form to justify the introduction of testimony in support of the Federal claim, under the system of practice and pleading prevailing in the courts of the two states in which the cases were decided. This brings these decisions clearly within the principle of the conclusion we are announcing in this case. While it is true that a substantive Federal right or defense duly asserted cannot be lessened or destroyed by a state rule of practice, yet the claim of the plaintiff in error to a Federal right not having been asserted at a time and in a manner calling for the consideration of it by the state supreme court under its established system of practice and pleading, the refusal of the trial court and of the supreme court to admit the testimony tendered in support of such claim is not a denial of a Federal right which this court can review (Baldwin v. Kansas, 129 U. S. 52, 32 L. ed. 640, 9 Sup. Ct. Rep. 193; F. G. Oxley Stave Co. v. Butler County, 166 U. S. 648, 41 L. ed. 1149, 17 Sup. Ct. Rep. 709), and therefore, for want of jurisdiction, the writ of error is dismissed.

242.US.426

A bill seeking to impress a trust upon personal property belonging to a bankrupt's estate, upon the theory that it was procured by means of moneys of which the plaintiff was defrauded by the bankrupt, must trace such moneys by adequate averments into the specific property sought to be affected. Claimants seeking priority of payment from a bankrupt's estate upon the ground that moneys obtained from them fraudulently by the bankrupt went into his business and swelled the estate, must go to the bankruptcy court in which the estate is being administered; such claims are not adjudicable in suits for the recovery of the bankrupt's property in other jurisdictions. 219 Fed. Rep. 721, affirmed.

Number 98. Knight, Yancey, & Company were duly adjudged bankrupts in the district court, northern district of Alabama, April 21, 1910. A few days later, in conjunction with a firm creditor, the receivers brought suit in the United States circuit court, fifth circuit, southern district of Alabama, against Latham & Company, a French partnership, Frederick Leyland Steamship Company, Limited, Louisville & Nashville Railroad Company, and others, seeking to recover 4,200 bales of cotton about to be exported from Mobile, upon the ground that, while insolvent, the bankrupts had transferred it to Latham & Company in payment of prior indebtedness and with intent to prefer them. After being taken into possession by the United States marshal, by order of court, the cotton was released, May 14, 1910, to Latham & Company, who executed a bond conditioned: 'Now, therefore, if the obligors herein shall have forthcoming and deliver within sixty days from date of any final decree of this court said cotton to the proper officer of the court, or shall pay and satisfy such decree as may be rendered in the premises, then this obligation shall be null and void, otherwise to remain in full force and effect.' Later the trustee in bankruptcy was substituted as complainant. July 1, 1910, Knauth, Nachod, & Kuhne filed in the cause a so-called cross bill, subsequently amended, which on motion was dismissed both for want of equity upon its face and because the court lacked jurisdiction to entertain it. The circuit court of appeals affirmed this action. The amended cross bill is a mass of prolix and vagrant statements and allegations from which it is difficult to spell out any very definite theory. Apparently because $98,000—approximate market value of 1,300 bales of cotton—had been fraudulently obtained from Knauth, Nachod, & Kuhne by the bankrupts and used by them in their business, the former sought to impress a trust upon what the latter thereafter acquired, including the 4,200 bales of cotton found at Mobile. The allegations of the bill are wholly inadequate to trace the funds into any specific cotton (Peters v. Bain, 133 U. S. 670, 693, 33 L. ed. 696, 704, 10 Sup. Ct. Rep. 354), and the cross bill must be regarded as an attempt to secure from the estate priority of payment on account of money fraudulently obtained by the bankrupts and put into their business. Manifestly such a proceeding could not be entertained in the southern district of Alabama. The estate was being administered in another court. Mueller v. Nugent, 184 U. S. 8, 46 L. ed. 408, 22 Sup. Ct. Rep. 269; Jones v. Springer, 226 U. S. 153, 57 L. ed. 163, 33 Sup. Ct. Rep. 64; Acme Harvester Co. v. Beekman Lumber Co. 222 U. S. 300, 56 L. ed. 208, 32 Sup. Ct. Rep. 96; Lazarus v. Prentice, 234 U. S. 267, 58 L. ed. 1307, 34 Sup. Ct. Rep. 851; Jaffe v. Weld, 208 N. Y. 593, 102 N. E. 1104. The judgment of the Circuit Court of Appeals is affirmed. Number 259. The record contains the amended bill of complaint; motions to dismiss, with objections thereto; final judgment of dismissal for want of jurisdiction; assignment of errors, etc. Shortly after Knight, Yancey, & Company were adjudged bankrupts, upon application of the receivers (May, 1910), the United States district court, northern district of Florida, enjoined the Louisville & Nashville Railroad from removing or disposing of 3,600 bales of cotton in its possession at Pensacola; and in June thereafter the duly selected trustee instituted suit seeking to recover possession of the cotton upon the ground that it had been transferred with intent to prefer. By the court's direction 2,635 bales were thereafter delivered to Latham & Company, who claimed them as owners, a forthcoming bond having been given. The remainder—965 bales—was sold and proceeds deposited in the First National Bank of Pensacola to await final orders. Subsequently appellants instituted an original proceeding claiming that the bankrupts had fraudulently obtained from them $98,000 and invested it in this or other cotton or otherwise, and that they were entitled to impress a trust upon the avails of such funds. The involved and erratic allegations are wholly inadequate to show with sufficient definiteness that the funds were invested in the cotton at Pensacola; and the bill must be considered as an attempt to secure priority of payment out of the bankrupts' estate upon the theory that it was increased by appellants' money. There was no jurisdiction to entertain such a proceeding in the District Court in Florida; and the judgment below is accordingly affirmed. Number 260. The record also consists of the amended bill, filed April 14, 1914; motions to dismiss, with objections thereto; final judgment of dismissal for want of jurisdiction; assignments of error, etc. At the instance of the receivers of Knight, Yancey, & Company, May, 1910, the Louisville & Nashville Railroad was enjoined by the United States district court, northern district of Florida, from removing or disposing of 1,950 bales of cotton then in its possession at Pensacola, Florida, and claimed by Westphalen & Company. Afterwards that firm instituted an original suit to recover, pending which, under agreement, the cotton was sold and the proceeds deposited in two banks at Pensacola, subject to final judgment. The proceedings were substantially the same as in Number 259, and like action was taken by the court. The judgment below is affirmed.

243.US.108

Under the Choctaw-Chickasaw supplemental agreement of July 1, 1902, §§ 11, 12, 15 and 16, 32 Stat. 641, surplus lands, selected by a member of the Chickasaw Tribe, become alienable only with the expiration of the respective periods after patent fixed in § 16; these restrictions accompany the land when it passes to a tribal member by inheritance, and a conveyance by him while the periods are running is void. Mullen v. United States, 224 U. S. 448, distinguished. The Act of April 26, 1906, 34 Stat. 137, in providing that cofiveyances of allotments made after selection should not be declared invalid .solely because made prior to patent, was not intended to validate deeds made before removal of restrictions on alienation; on the contrary it expressly declares them null and void. 40 Oklahoma, 695, affirmed.

The case in the state court was begun in the district court of Jefferson county, Oklahoma, in 1911, by D. R. Johnston, against C. E. Gannon, for the recovery of certain lands, originally alloted in 1903 to Agnes Wolfe, a full-blood Chickasaw Indian. Afterwards, by amended petition, Wilburn Wolfe was made a party plaintiff. To this amended petition answer was filed by Gannon, asserting his title, and upon issues being made up judgment was rendered in favor of Johnston and Wolfe as to the 'surplus allotment' of said Agnes Wolfe, and of Gannon as to the 'homestead allotment.' Upon writ of error, the supreme court of Oklahoma affirmed the judgment (40 Okla. 695, 140 Pac. 430, Ann. Cas. 1915D, 522), and the case is here upon writ of error to the last-named court. The decision as to the surplus lands is all that is called in question. The lands in controversy were allotted to Agnes Wolfe, the certificate of allotment bearing date July 7th, 1903; the patent was signed by the governor September 12th, 1905, and approved by the Secretary of the Interior October 7th, 1905. Upon her death, in 1903, the title passed to her brother and sole heir at law, Wilburn Wolfe, defendant in error here. The supreme court finds that it fairly appears from the record that the allotment was selected in the lifetime of Agnes Wolfe. Upon October 13th, 1903, for a consideration of $1,050, Wilburn Wolfe executed and delivered to one A. J. Waldock a warranty deed for the lands; several transfers of this title were made through various persons and corporations until, on November 30th, 1907, it was acquired, by warranty deed, and for a good and valuable consideration, by C. E. Gannon, plaintiff in error. Since that date he has been in possession and control of the lands and has received the profits therefrom, either personally or by agents and tenants. Upon January 4th, 1909, Wilburn Wolfe executed and delivered to D. R. Johnston a warranty deed for the lands in controversy, which deed was approved by the county judge of Pontotoc county, Oklahoma, on March 23d, 1909, and by the Secretary of the Interior on July 2d, 1910, in accordance with the laws of Congress, and it is through this deed that Johnston asserts his title. The correctness of the decision of the supreme court of Oklahoma turns upon the question whether, when Wilburn Wolfe made his deed to A. J. Waldock, Wolfe was competent to convey title to the surplus lands, it being conceded that the title of the plaintiff in error was derived through the grantee in the Waldock deed. This inquiry involves a consideration of §§ 11, 12, 15, and 16 of the supplemental agreement between the United States and the Choctaw and Chickasaw Indians, approved July 1st, 1902 (32 Stat. at L. 641, chap. 1362). Section 11 provides for allotting to each member of these tribes land equal in value to 320 acres of the average allottable land, and to each freedman land equal in value to 40 acres of the average allottable land. Section 12 provides that at the time of the selection each member of the tribes shall designate as a homestead out of such allotment 160 acres, which shall be inalienable 'during the lifetime of the allottee, not exceeding twenty-one years from the date of certificate of allotment, and separate certificate and patent shall issue for said homestead.' Sections 15 and 16 are as follows: '15. Lands allotted to members and freedmen shall not be affected or encumbered by any deed, debt, or obligation of any character contracted prior to the time at which said land may be alienated under this act, nor shall said lands be sold except as herein provided. '16. All lands allotted to the members of said tribes, except such land as is set aside to each for a homestead as herein provided, shall be alienable after issuance of patent as follows: One fourth in acreage in one year, one fourth in acreage in three years, and the balance in five years; in each case from date of patent: Provided, That such land shall not be alienable by the allottee or his heirs at any time before the expiration of the Choctaw and Chickasaw tribal governments for less than its appraised value.' The provisions of these sections, it seems to us, lead to the conclusion that Congress intended to make them binding upon the surplus lands not only in the lifetime of the allottee, but as well during the periods named when the lands might descend as in this case to and be owned by a member of the tribe. Section 15 is positive in its requirement that lands allotted to members shall not be sold except as in the act provided. Section 16 makes the land alienable after the issuance of patent, except as to the homestead, not involved here, one fourth in acreage in one year, one fourth in three years, and the balance in five years from the date of the patent, and provides that the lands shall not be alienable by the allottee 'or his heirs' at any time before the expiration of the Choctaw and Chickasaw tribal governments for less than the appraised value. It seems quite clear that in thus enacting a statute for the protection of a dependent people, Congress intended to bind the surplus lands in the hands of the heirs as well as when in the ownership of the original allottee, and to make such land inalienable during the periods named. Congress intended to prevent improvident sales of the lands, and distributed the right of alienation over a period of years, giving the right to sell at the appraised value and in the quantities named. In view of the positive provision of § 15, and its prohibition of alienation except as permitted in the act, we think Congress manifested its intention to make any other alienation void. Counsel for plaintiff in error rely very much in support of their contentions upon the case of Mullen v. United States, 224 U. S. 448, 56 L. ed. 834, 32 Sup. Ct. Rep. 494. But that case dealt with an allotment of lands under § 22, where provision is made for allotment in the right of a member of the tribe who has died subsequently to the ratification of the agreement and before receiving an allotment. Because of the difference between § 22 and the other sections it was held that there was no restriction upon the right of the heirs to make the conveyance in question. The later case of Bowling v. United States, 233 U. S. 528, 58 L. ed. 1080, 34 Sup. Ct. Rep. 659, dealt with restrictions like those under consideration now. The Secretary of the Interior was authorized to make an allotment to each member of the tribe, subject to the restriction that the land should not be subject to alienation for the period of twenty-five years from the date of the issuance of the patents, and that the patents should recite in the body thereof that the land described and conveyed should not be alienated for twenty-five years from its date, and that any contract or agreement to sell or convey such allotments so patented, entered into before the expiration of said term of years, should be null and void. Of such restrictions, Mr. Justice Hughes, who also wrote the opinion in the Mullen Case, speaking for the court, said, at page 535: 'The question, then, is, whether the restriction imposed by the act of 1889 was a merely personal one, operative only upon the allottee, or ran with the land, binding his heirs as well. This must be answered by ascertaining the intent of Congress as expressed in the statute. The restriction was not limited to 'the lifetime of the allottee,' as in Mullen v. United States, 224 U. S. 448, 453, 56 L. ed. 834, 839, 32 Sup. Ct. Rep. 494, nor was the prohibition directed against conveyances made by the allottee personally. Congress explicity provided that 'the land so allotted' should not be subject to alienation for twenty-five years from the date of patent. 'Said lands so allotted and patented' were to be exempt 'from levy, sale, taxation, or forfeiture for a like period of years.' The patent was expressly to set forth that 'the land therein described and conveyed' should not be alienated during this period, and all contracts 'to sell or convey such land' which should be entered into 'before the expiration of said term of years' were to be absolutely void. These reiterated statements of the restriction clearly define its scope and effect. It bound the land for the time stated, whether in the hands of the allottee or of his heirs.' We think this principle is controlling here, and that it was the intention of Congress to make a restriction which should bind the surplus lands, whether in the hands of the original allottee in his lifetime or of his heirs after the decease of the original allottee during the periods named. The restriction was upon alienation of the lands as such, and was not merely personal to the allottee any more than it was in the Bowling Case. In the Act of 1906, validating conveyances made by the members of the Five Civilized Tribes (34 Stat. at L. 137, chap. 1876), where it was provided that conveyances made by members of the Five Civilized Tribes subsequent to selection of allotment and removal of restrictions, where patents thereafter issue, should not be declared invalid solely because the conveyances were made prior to the issuance and delivery of the patents, it was nevertheless provided that deeds executed or contracts entered into before the removal of restrictions should be null and void. A contention that many investments have been made upon a construction of the law differing from that given in this case by the supreme court of Oklahoma, and that such construction and the common understanding of the bar have operated to establish a rule of property which cannot be changed, was denied by the supreme court of Oklahoma, and rightly so. The matters relied upon were inadequate to overcome the meaning of the statutory provisions in question. A contention that the deed from Wolfe to Johnston was champertous within the statute of the state was considered and decided by the supreme court of Oklahoma in the light of its own and other decisions, and the holding of the court did not, in our opinion, involve the denial of a Federal right such as would make that ruling reviewable here. We think the Federal questions involved were correctly decided, and affirm the judgment of the Supreme Court of Oklahoma. Affirmed.

245.US.304

A State may prohibit and punish the possession of intoxicating liquor for personal use. Idaho Laws, 1915, c. 11, p. 41, sustained. 27 Idaho, 671, affirmed. THE case is stated in the opinion.

An act of the Legislature of Idaho, approved February 18, 1915, 'defining prohibition districts and regulating and prohibiting the manufacture, sale, * * * transportation for sale or gift, and traffic in intoxicating liquors,' etc. (Session Laws of Idaho 1915, c. 11), provides: 'Sec. 2. It shall be unlawful for any person, firm, company or corporation, its officers or agents, to sell, manufacture or dispose of any intoxicating liquor or alcohol of any kind within a prohibition district or have in his or its possession or to transport any intoxicating liquor or alcohol within a prohibition district unless the same was procured and is so possessed and transported under a permit as hereinafter provided: Provided, that so long as the manufacture of intoxicating liquors for beverage purposes shall not be prohibited within the state by the Constitution or by general law applicable by its terms to the state as a whole, it shall not be unlawful for any person, company or corporation to manufacture intoxicating liquors for beverage purposes in a prohibition district for transportation to and sale outside of the prohibition district: Provided, that nothing in this act shall be construed to apply to the manufacture, transportation or sale of wood or denatured alcohol.' 'Sec. 15. It shall be unlawful for any person to import, ship, sell, transport, deliver, receive or have in his possession any intoxicating liquors except as in this act provided.' 'Sec. 22. It shall be unlawful for any person, firm, company, corporation or agent to have in his or its possession any intoxicating liquors of any kind for any use or purpose except the same shall have been obtained and is so possessed under a permit authorized by this act.' Plaintiff in error was arrested and held in custody by the sheriff, in default of bail, solely because charged with having 'in his possession a bottle of whisky for his own use and benefit and not for the purpose of giving away or selling the same to any person' within Latah county, Idaho—a prohibition district—on May 16, 1915, in violation of the quoted sections. He sued out a writ of habeas corpus from the state Supreme Court and sought discharge upon the ground that those sections were in contravention of the Fourteenth Amendment, federal Constitution, and therefore void. The court held: 'The only means provided by the act for procuring intoxicating liquors in a prohibition district for any purpose relates to wine to be used for sacramental purposes and pure alcohol to be used for scientific or mechanical purposes, or for compounding or preparing medicine, so that the possession of whisky, or of any intoxicating liquor, other than wine and pure alcohol for the uses above mentioned, is prohibited.' 'We have reached the conclusion that this act is not in contravention of section 1 of the Fourteenth Amendment to the Constitution of the United States; * * * that it was passed by the Legislature with a view to the protection of the public health, the public morals and the public safety; that it has a real and substantial relation to those objects, and that it is, therefore, a reasonable exercise of the police power of the state.' In re Ed. Crane, 27 Idaho, 671, 151 Pac. 1006. The writ was accordingly quashed and the petitioner remanded to custody. The question presented for our determination, is whether the Idaho statute, in so far as it undertakes to render criminal the mere possession of whisky for personal use, confilicts with that portion of the Fourteenth Amendment which declares: 'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law.' Its validity under the state Constitution is not open for our consideration; with its wisdom this court is not directly concerned. It must now be regarded as settled that, on account of their well-known noxious qualities and the extraordinary evils shown by experience commonly to be consequent upon their use, a state has power absolutely to prohibit manufacture, gift, purchase, sale, or transportation of intoxicating liquors within its borders without violating the guarantees of the Fourteenth Amendment. Bartemeyer v. Iowa, 18 Wall. 29, 21 L. Ed. 929; Beer Co. v. Massachusetts, 97 U. S. 25, 33, 24 L. Ed. 989; Mugler v. Kansas, 123 U. S. 623, 662, 8 Sup. Ct. 273, 31 L. Ed. 205; Crowley v. Christensen, 137 U. S. 86, 91, 11 Sup. Ct. 13, 34 L. Ed. 620; Purity Extract Co. v. Lynch, 226 U. S. 192, 201, 33 Sup. Ct. 44, 57 L. Ed. 184; Clark Distilling Co. v. Western Md. Ry. Co., 242 U. S. 311, 320, 321, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A. 1917B, 1218, Ann. Cas. 1917B, 845; Seaboard Air Line Ry. v. North Carolina, 245 U. S. 298, 38 Sup. Ct. 96, 62 L. Ed. ——. As the state has the power above indicated to prohibit, it may adopt such measures as are reasonably appropriate or needful to render exercise of that power effective. Booth v. Illinois, 184 U. S. 425, 22 Sup. Ct. 425, 46 L. Ed. 623, Silz v. Hesterberg, 211 U. S. 31, 29 Sup. Ct. 10, 53 L. Ed. 75, Murphy v. California, 225 U. S. 623, 32 Sup. Ct. 697, 56 L. Ed. 1229, 41 L. R. A. (N. S.) 153, and Rast v. Van Deman & Lewis, 240 U. S. 342, 364, 36 Sup. Ct. 370, 60 L. Ed. 679, L. R. A. 1917A, 421, ann. Cas. 1917B, 455. And, considering the notorious difficulties always attendant upon efforts to suppress traffic in liquors, we are unable to say that the challenged inhibition of their possession was arbitrary and unreasonable or without proper relation to the legitimate legislative purpose. We further think it clearly follows from our numerous decisions upholding prohibition legislation that the right to hold intoxicating liquors for personal use is not one of those fundamental privileges of a citizen of the United States which no state may abridge. A contrary view would be incompatible with the undoubted power to prevent manufacture, gift, sale, purchase or transportation of such articles—the only feasible ways of getting them. An assured right of possession would necessarily imply some adequate method to obtain not subject to destruction at the will of the state. The judgment of the court below must be Affirmed.

243.US.447

A suit to restrain a state official and his successors in office from estimating, levying and assessing a tax under a state law claimed to be unconstitutional is a suit against him as an individual and, in the absence of a statute otherwise-providing, abates when his term of office expires and cannot be revived against his successor. New Orleans v. Citizens' Bank, 167 U. S. 371, 388, distinguished. Writ of error to review 70 Florida, 9, dismissed.

Suit was brought in the circuit court of Leon county, Florida, by the Pullman Company against Knott, comptroller of the state of Florida, to enjoin him and his successors in office from estimating, levying, and assessing a tax on the gross receipts of the Pullman Company, on the ground that the state law authorizing the tax was void under the Constitution of the United States. The circuit court held that the law was constitutional, and dismissed the bill; that decree was affirmed by the supreme court of the state. (70 Fla. 9, 69 So. 703.) The case was then brought here upon writ of error. It is now before us upon a motion of the defendant in error, by the attorney general of the state, to dismiss the proceeding in this court upon the ground that there is no proper person defendant to stand in judgment in the action. It is averred, and is not disputed, that Knott, the defendant in error, is no longer comptroller of the state of Florida, his term of office having expired on January 2, 1917, and that thereupon he retired from the office of comptroller and has been succeeded by another, who is the duly commissioned and acting comptroller of the state. The original suit was against Knott; the bill stated that he was the duly elected, qualified, and acting comptroller of the state of Florida. The bill sets forth the duties required of him in that connection in levying the tax against the enforcement of which the injunction was sought by the Pullman Company. While it is true that the duty required concerns the state, the suit is against Knott as an individual, and he alone can be punished for the failure to obey an injunction, should one issue, as prayed for in the bill. Whether the court below was right in refusing the injunction and dismissing the bill against Knott is the question presented. In such cases, a long line of decisions in this court has settled that the action abates upon the expiration of the defendant's term of office, and cannot be revived against his successor in office, in the absence of a statute so providing. We had occasion to review and consider these cases in the case of Pullman Co. v. Croom, 231 U. S. 571, 58 L. ed. 375, 34 Sup. Ct. Rep. 182, in which this court held, vacating the former order of substitution granted without discussion, that the action for an injunction against the enforcement of the tax abated upon the death of Croom, comptroller, and there being no statute covering such cases, no order of substitution could be made, and thereupon dismissed the appeal for want of a proper party to stand in judgment. The case upon which the subsequent decisions are rested is United States v. Boutwell, 17 Wall. 604, 21 L. ed. 721. In that case the rule and the reasons for it were stated by the court. That was a suit for mandamus against the Secretary of the Treasury, and involved the right to substitute the successor of the Secretary, his term of office having expired since the suit was commenced. The court held that the right to a writ of mandamus ceased to exist upon the defendant retiring from the office of Secretary, and that, in the absence of a statute, the writ must necessarily abate. The court further held that the duty sought to be enforced was a personal one, and existed only so long as the office was held; that the court could not compel the defendant to perform such duty after his power so to do had ceased; that if the successor in office could be substituted he might be mulcted in costs for the fault of his predecessor, without any delinquency of his own; and that were a demand made upon him, he might discharge the duty, rendering the interposition of a court unnecessary; and, in any event, the successor was not in privity with his predecessor, nor was he his personal representative. (17 Wall. 604, 607, 608.) In Warner Valley Stock Co. v. Smith, 165 U. S. 28, 41 L. ed. 621, 17 Sup. Ct. Rep. 225, the previous cases were reviewed by Mr. Justice Gray, speaking for the court, and the principle was applied to a suit for an injunction. In United States ex rel. Bernardin v. Butterworth, 169 U. S. 600, 42 L. ed. 873, 18 Sup. Ct. Rep. 441, it was held that the substitution could not be made, even with the consent of the successor in office. In that case it was stated that it seemed desirable that Congress should provide for the difficulty by enacting a statute that would permit the successors of heads of departments who had died or resigned to be brought into the case by a proper method. Congress thereupon passed the Act of February 8, 1899 (30 Stat. at L. 822, chap. 121, Comp. Stat. 1913, § 1594), under the terms of which successors of officers of the United States may be substituted in suits brought against them in their official capacity. This statute has no application to other than Federal officers. In Richardson v. McChesney, 218 U. S. 487, 54 L. ed. 1121, 31 Sup. Ct. Rep. 43, an action was brought against McChesney, as secretary of the commonwealth of Kentucky. This court took judicial notice that his term of office had expired pending the suit, and that a successor had been inducted into office, and held that the former rule applied, and that the only exception to it Waller et al. devolved upon a corporation or a continuing body. Marshall v. Dye, 231 U. S. 250, 58 L. ed. 206, 34 Sup. Ct. Rep. 92. This seems to be the rule in the Florida courts. Columbia County v. Bryson, 13 Fla. 281. In the McChesney Case this court held that as the official authority of the secretary had terminated, the case, so far as it sought to accomplish its object, was at an end, and there being no statute providing for the substitution of the successor, the writ of error was dismissed; citing United States v. Boutwell, and United States ex rel. Bernardin v. Butterworth, supra; Caledonian Coal Co. v. Baker, 196 U. S. 432, 441, 49 L. ed. 540, 544, 25 Sup. Ct. Rep. 375. It is argued for the plaintiff in error that this court has held that former judgments adjudicating rights against the state are binding in subsequent actions; that the mere fact that there has been a change of person holding the office does not destroy the effect of the thing adjudged. New Orleans v. Citizens' Bank, 167 U. S. 371, 388, 389, 42 L. ed. 202, 208, 209, 17 Sup. Ct. Rep. 905. But that argument does not touch the question here. It was held in the Citizens Bank Case that a holding that a contract for exemption from taxation existed bound subsequent officers of the state. The difficulty here is that this proceeding in error, since the expiration of Knott's term of office, leaves no party defendant in error to stand in judgment. It is said that this ruling involves great hardship and that official terms will expire so that cases of this sort cannot be reviewed at all in this court. In this case the judgment of the state court was rendered on June 26, 1915; the order allowing the writ of error to this court was filed September 24, 1915; and the record was filed in this court on October 8, 1915. It does not appear that any attempt was made to advance the case, in view of the expiration of Knott's terms of office as comptroller in January, 1917. As the law now stands, we have no alternative except to dismiss the writ of error for want of a proper defendant to stand in judgment. And it is so ordered.

245.US.337

Claimant entered into a contract with the United States to erect certain structures "at the United States navy yard, Mare Island." Held, upon the facts, as found by the court below, that the site selected before the execution of the contract was selected provisionally and subject to be changed by the Government for some other location within the navy yard, and that claimant so understood when the contract was made. A judgment exonerating a surety on a government construction contract, upon the ground that the location of the work was changed by the United States without the surety's consent, is not res judicata in respect of the right of the United States to make the change as against the principal contractor, when the latter was not a party to the action in which the judgment was rendered and when the right is dependent, not upon the terms of the written contract, but upon notice and representations aliunde, which in the case of the surety may have been different, and so have produced a different understanding, than in the case of the principal. Having annulled a construction contract for default, the United States re-let the contract at higher cost. Under supplemental agreements with the new contractor, certain deviations from the contract were made, involving a cost of about 6% of the total contract price and requiring estimates of the attendant expenses. Notwithstanding that these changes, on the whole, reduced the cost of the work, held, because of the deviations, that the difference between the cost and the original contract price was not a proper measure of the original contractor's liability. In view of the history of the negotiation preceding the contract here in question, he!d, that it would be highly inequitable to allow the Government's claim of liquidated damages. 50 Ct. Clms. 40, affirmed.

These two cases are appeals from the Court of Claims which were heard and will be decided together, the second being a cross-appeal from the judgment denying recovery on the government's counterclaim. The California Bridge & Construction Company, hereinafter referred to as the Bridge Company, on December 21, 1898, with the American Surety Company of New York, Albert Brown and Thomas Prather as its sureties, entered into a written contract with the United States to furnish the materials for and to completely construct, within six months from the date of the contract, a sawmill, boiler house, and steel chimney 'at the United States navy yard, Mare Island, California.' On January 2, 1901, claiming to act under an option therein contained, the government declared the contract void, and the Bridge Company was notified that the work would be completed at its expense. Under a second contract the work was completed by another contractor. In its amended petition the Bridge Company claimed that the government had terminated the contract without warrant and sought to recover for materials furnished, expenses incurred, and anticipated profits. The government denied all liability to the plaintiff and in a counterclaim prayed for a judgment for the difference between the amount of the plaintiff's contract and the cost of completing the work, plus liquidated damages. The substance of the Bridge Company's first claim is that when, for the purpose of informing itself with a view to bidding on the proposed work, its president and secretary visited the navy yard, a location for the construction, hereinafter designated the 'first location,' was shown to them, duly staked out, and that its bid was based upon this representation, that after the contract was executed, without the consent of the Bridge Company, this location was changed to another, hereinafter designated the 'second location,' still within the navy yard, but one upon which it was much more difficult and expensive to construct the work than upon the first location, and that the government refused to agree to make a reasonable allowance for such increased expense, and wrongfully annulled the contract to the damage of the claimant. To this branch of the case the defense is that, at the time the officials of the plaintiff visited the navy yard and also when the contract was signed, the precise location of the plant had not been officially determined upon, that they were then so informed, and made their bid with that understanding, and that the contract was lawfully annulled for delay in going forward with the performance of it. The case is here for review on a finding of facts by the Court of Claims, in which it is stated that when the president of the Bridge Company visited the navy yard before the contract was signed he was authoritatively informed 'that the site of the structure was not definite,' and that 'the location was liable to be changed to some other place within the limits of the navy yard.' The correspondence, appearing in the finding of facts, which passed between the parties before the contract was annulled makes it clear beyond controversy that the Bridge Company when it executed the contract fully understood that another location than the one pointed out might finally be selected. Not long after the contract was signed, as if concluding that it was an improvident one, which it wished to modify, the Bridge Company, for various reasons, some with and more without merit, delayed in going forward with the work, with the result that after much discussion, on January 2, 1901, in a letter addressed to the Bridge Company, the government, asserting that it was acting under the option reserved in the contract, declared it void and gave notice to the Bridge Company that the work would be completed at its expense. The contract contained a provision giving to the government the option to declare it void if the parties of the first part should fail in any respect to perform their obligations under it and we agree with the Court of Claims in concluding that this action by the government, taken upon the recommendation of a board of three naval officers, was entirely justified. The Bridge Company further relies upon a judgment rendered in the federal Circuit Court for the Eastern District of Pennsylvania in favor of its surety the American Surety Company of New York, as estopping the government from claiming either in defense or in aid of its counterclaim that it had the lawful right to require the company to erect the structure contracted for on the second site. As a general proposition, the claim that the principal and surety in a contract of suretyship are in such privity that a judgment in favor of the latter works an estoppel in favor of the former arrests attention more by its novelty than by its difficulty, having regard to the several defenses which a surety may have on its contract which the principal may not have. Especially is this true in such a case as we have here, in which the contract of suretyship consists simply in the signing of the construction contract by the Surety Company 'as surety,' so that the rights and obligations of the parties to it must be derived wholly from the law of suretyship. In dealing with this contention of the Bridge Company, it will not be necessary for us to enter into the refinements of the decisions with respect to privity and privies. The doctrine of estoppel by judgment, or res judicata, as a practical matter, proceeds upon the principle that one person shall not a second time litigate, with the same person or with another so identified in interest with such person that he represents the same legal right, precisely the same question, particular controversy, or issue which has been necessarily tried and finally determined, upon its merits, by a court of competent jurisdiction, in a judgment in personam in a former suit. Hopkins, v. Lee, 6 Wheat, 109, 113, 5 L. Ed. 218; Washington, Alexandria & Georgetown Packet Co. v. Sickles, 24 How. 333, 16 L. Ed. 650; Id., 5 Wall. 580, 18 L. Ed. 550; Lovejoy v. Murray, 3 Wall. 1, 18, 18 L. Ed. 129; Litchfield v. Goodnow, 123 U. S. 549, 8 Sup. Ct. 210, 31 L. Ed. 199; Southern Pacific Co. v. United States, 168 U. S. 1, 48, 18 Sup. Ct. 18, 42 L. Ed. 355; Fayerweather v. Ritch, 195 U. S. 276, 25 Sup. Ct. 58, 49 L. Ed. 193; Bigelow v. Old Dominion Copper Mining Co., 225 U. S. 111, 127, 32 Sup. Ct. 641, 56 L. Ed. 1009, Ann. Cas. 1913E, 875; Bigelow on Estoppel, c. 3. The suit in which this judgment claimed as an estoppel was rendered was commenced by the government against the American Surety Company and others, as sureties of the Bridge Company on the building contract, to recover the difference between the amount which the government was compelled to pay for the completed work and the amount for which the Bridge Company had contracted to complete it. The Surety Company was the only defendant which was served or appeared in the suit. With respect to this judgment the Court of Claims finds that in the Circuit Court the surety company pleaded non assumpsit and a special plea based on the action of the United States 'in assuming to change the contract by changing the site of the buildings to be erected, to which change the surety had not assented,' and also that the Circuit Court 'submitted to the jury the question whether, under the contract and the circumstances attending its execution the United States could require claimants to erect the structure contemplated by the contract at a site other than as stated, and that the jury brought in a verdict for the surety company, and judgment was entered accordingly.' No writ of error was procured to review this judgment. Obviously, the finding and judgment thus described by the Court of Claims must be understood as deciding that the government was not justified in requiring the construction to be on the 'second location' as against the Surety Company, which was the only defendant served or appearing in that action, but not as so holding as against the Bridge Company, which was a stranger to it, and therefore the judgment in that case cannot serve as an estoppel in this one unless the issue relied upon the Surety Company in the Circuit Court case to defeat the claim of the government for damages was precisely the same as is relied upon in this case by the Bridge Company for the same purpose, and a brief discussion of the record will show that such is not the fact. It is to be noted that the contract provides for the completing of the required construction 'at the United States havy yard, Mare Island, California,' without designation of the precise location in the navy yard, and therefore, since the 'first' and 'second' locations were both within the limits of the yard, it was necessary to determine from evidence aliunde the writing whether the 'first location' was represented to either the Surety Company or to the Bridge Company as having been finally determined upon before they executed the contract, and the information which each received as to this fact would determine its legal rights with respect to the claim of the government for damages. The defense in the former case turned on the information which the Surety Company received as to the precise location in the navy yard of the proposed construction before it executed the contract—whether it was informed as to the 'first location' and as to whether that location had been finally or only tentatively determined upon—and the claim of the Bridge Company in this case turns on the information, also with respect to the 'first location' which that company received before signing the contract. But since there was no relation between the two companies, such that either was or is chargeable with the knowledge which the other had on this disputed subject, and since the notice which one of them had may have been entirely different from that which the other received, clearly the Surety Company may have been informed that the 'first location' had been definitely determined upon and may have executed the contract with that understanding, as the judgment in its favor in the Circuit Court implies, while, at the same time, as the government claims in this case, the Bridge Company, prior to and at the time of the signing of the contract, may have been informed that the 'first location' was tentative only and subject to change, as the Court of Claims has found to be true. Thus, since the legal liability of the Surety Company and the Bridge Company depend as to each upon peculiar facts, of each case, and as one could very well be liable and the other not, it is plain that the issue determined in the Circuit Court case was not the same as that which was presented in this case and that therefore the claim of estoppel by former judgment is without merit and must be denied. There remains to be considered the cross-appeal of the government. After the contract with the Bridge Company was annulled the government entered into a contract with another contractor, identical with the former one, except for some unimportant additions to the specifications. But, in the progress of the work, four supplemental contracts were deemed necessary by the government, and were entered into in writing with the second contractor and his surety. The first of these supplemental contracts related to change in the length and size of the foundation piles to be used, involving an estimated reduction in payment to be made of almost $3,000; the second provided for an addition to the number of piles provided for in the second contract; the third covered changes in the character of various parts of the foundation to be constructed, and the fourth provided for changes in walls, doors, stairways and for the adding a foundation for a bulkhead wall. While the additional cost involved in the changes provided for in three of these supplemental contracts is less than the reduction in cost of the changes provided for in the other one of them, yet, since they constitute a deviation from the original contract, involving a cost of about 6 per cent. of the total contract price, and since each of these supplemental contracts required an agreement with the new contractor which involved an estimate of the expense of making the changes contemplated by them, we agree with the Court of Claims in concluding that it cannot be said that the work performed under the second contract was so substantially that which the Bridge Company contracted to perform as to permit the recovery of the difference in cost between the two under the familiar rules applicable to the subject. The history of the negotiation between the Bridge Company and the government before the first contract was annulled, as it appears in the finding of facts, makes it highly inequitable that the claim of liquidated damages should be allowed. The recovery of the Bridge Company, limited as it was to the value of the materials delivered by it and used by the government, is approved. It results that the judgment of the Court of Claims is Affirmed.

246.US.214

Congress, in the acts making appropriations under the general head for the "current and contingent expenses of the Indian Department [or Bureau] and fulfilling treaty stipulations with various Indian tribes," having long made a practice of appropriating each year specifically for the "civilization and self-support" of Chippewa Indians in Minnesota out of their trust funds under the Act of January 14, 1889, c. 24, 25 Stat. 642, held, that the appropriation so expressed in the appropriation act for the fiscal year 1915 was repeated for the fiscal year 1916 by the Joint Resolution of March 4, 1915, 38 Stat. 1228, which, in default of a new appropriation act, declared the appropriations for the former year coitinued for the latter, employing only the general language of the former appropriation acts to designate the purposes, and providing against the duplication of special payments and the execution of any purpose intended by the former act to be paid for but once or confined to the former fiscal year. 45 App. D. C. 79, reversed.

Appellee by bill in Supreme Court, District of Columbia, sought to prevent officers of the Interior Department from disbursing during fiscal year ending June 30, 1916, $160,000 out of trust funds belonging to Chippewa Indians of Minnesota on deposit in United States Treasury. 'An act making appropriations for the current and contingent expenses of the Bureau of Indian Affairs for fulfilling treaty stipulations with various Indian tribes, and for other purposes, for the fiscal year ending June thirtieth, nineteen hundred and fifteen' approved August 1, 1914 (chapter 222, 38 Stat. 582, 590) provided: 'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that the following sums be, and they are hereby, appropriated, out of any money in the Treasury not otherwise appropriated, for the purpose of paying the current and contingent expenses of the Bureau of Indian Affairs, for fulfilling treaty stipulations with various Indian tribes, and in full compensation for all offices the salaries for which are provided for herein for the service of the fiscal year ending June thirtieth, nineteen hundred and fifteen, namely: * * * 'Sec. 8. * * * The Secretary of the Interior is hereby authorized to withdraw from the Treasury of the United States, at his discretion, the sum of $205,000, or so much thereof as may be necessary, of the principal sum on deposit to the credit of the Chippewa Indians in the state of Minnesota, arising under section seven of the Act of January fourteenth, eighteen hundred and eighty-nine, entitled 'An act for the relief and civilization of the Chippewa Indians in the state of Minnesota,' and to use the same for the purpose of promoting civilization and self-support among the said Indians in manner and for purposes provided for in said act,' provided [not more than $45,000 of this amount may be used for purchase of lands and removal of bodies of certain deceased Indians]. The annual appropriation bill for current and contingent expenses of the Bureau of Indian Affairs, etc., for fiscal year ending June 30, 1916, failed of passage and in lieu of it Congress passed the Joint Resolution approved March 4, 1915, which follows: 'Joint Resolution making appropriations for current and contingent expenses of the Bureau of Indian Affairs, for fulfilling treaty stipulations with various Indian tribes, and for other purposes, for the fiscal year ending June thirtieth, nineteen hundred and sixteen. 'Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, that all appropriations for the current and contingent expenses of the Bureau of Indian Affairs and for fulfilling treaty stipulations with various Indian tribes, which shall remain unprovided for on June thirtieth, nineteen hundred and fifteen, are continued and made available for and during the fiscal year nineteen hundred and sixteen to the same extent, in detail, and under the same conditions, restrictions, and limitations for the fiscal year nineteen hundred and sixteen as the same were provided for on account of the fiscal year nineteen hundred and fifteen in the Indian Appropriation Act for that fiscal year. For all of such purposes a sufficient sum is appropriated, out of any money in the treasury not otherwise appropriated, or out of funds to the credit of Indians as the same were respectively provided in the Indian Appropriation Act for the fiscal year nineteen hundred and fifteen: Provided, that the appropriations from the treasury of the United States or from Indian funds shall not exceed in the aggregate the amounts of such appropriations for the fiscal year nineteen hundred and fifteen: Provided further, that this joint resolution shall not be const ued as providing for or authorizing the duplication of any special payment or for the execution of any purpose provided for in said Appropriation Act that was intended to be paid only once or done solely on account of the fiscal year nineteen hundred and fifteen. * * *' 38 Stat. 1228. The original bill alleged that no part of the $205,000 appropriated by Act of August 1, 1914, was for expenses of the Bureau of Indian Affairs or for fulfilling treaty stipulations with Chippewa Indians of Minnesota, but all (except the $40,000 item not here involved) was for special payments and limited to fiscal year ending June 30, 1915; that it was not intended as a regular annual appropriation and the Joint Resolution of 1915 in express language excluded such items in Act of 1914 from being re-expended during 1916; that notwithstanding this the Comptroller of the Treasury had ruled the Joint Resolution did reappropriate $160,000, and the Secretary of the Interior and Commissioner of Indian Affairs were preparing to expend such sum out of Indians' trust funds; and that unless enjoined they would draw warrants therefor upon the treasury which would be honored. Upon motion, the trial court dismissed the bill for want of equity. The Court of Appeals reversed the decree, holding the Joint Resolution did not reappropriate $160,000 and the relief prayed should have been granted. Treating this as final and conclusive of issues involved the cause was brought here by appeal. The only point presented for decision is whether by the language used Congress has sufficiently indicated an intent to appropriate the money in question. The bill does not challenge its power. Under an act approved January 14, 1889 (25 Stat. 642, c. 24), lands in Minnesota occupied by Chippewa Indians were disposed of and proceeds deposited to their credit in the United States treasury, it being agreed that the fund should bear 5 per cent. interest to be paid directly to the Indians or used for their schools, and further 'that Congress may, in its discretion, from time to time, during the said period of fifty years, appropriate, for the purpose of promoting civilization and self-support among the said Indians, a portion of said principal sum, not exceeding five per centum thereof.' For many years subsequent to 1889, under the general head of 'Current and contingent expenses of the Indian Department * * * and fulfilling treaty stipulations with various Indian tribes,' appropriations were made for general benefit of Chippewas 'to be reimbursed to the United States out of the proceeds of sales of their lands.' In 1911 their funds derived from land sales had become very large; and beginning then and continuing down to 1914 the annual Indian appropriations bill contained an item essentially similar (except as to amounts) both in words and position to the one in section 8, Act of 1914 quoted above. It seems clear that 'civilization and self-support' among the Indians cannot be promoted effectively by disconnected efforts, but must be accomplished, if at all, by definite, permanent plans operating through many years. And in view of the long-continued practice of Congress to provide funds for such continuous efforts by annual appropriations, the circumstances under which the Joint Resolution became law, and the studied incorporation therein of the language of former appropriation acts, we think the purpose was to authorize expenditure of $160,000 during 1916, as had been done for 1915. A different construction might have occasioned disruption of well ordered arrangements for advancing the nation's wards, to the great detriment of all concerned; and to such unfortunate consequences experienced legislators probably were not oblivious. By construing the resolution too narrowly the court below reached an erroneous conclusion. Its decree is therefore reversed; and the decree of the Supreme Court, District of Columbia, is affirmed. Reversed. Mr. Justice McKENNA dissents.

244.US.492

In view of the power reserved to add to, alter, amend or repeal the act granting land to the Atlantic and Pacific Railroad Company (July 27, 1866, c. 278, 14 Stat. 292), and of the grantee's failure to comply with the conditions as to construction, Congress, without violating any vested right and consistently with the Fifth Amendment, could lay upon the grantee the cost of surveying the lands granted and require payment thereof as a condition to the issuance of patents, as was in fact done, in respect of said company, by the general provision in the Act of July 31, 1876, c. 246, 19 Stat. 121. The construction placed by the Land Department upon the Act of 1876, supra, to the effect that it required the grantee to pay only a share of the cost of surveying and sectionizing a township proportional to the area of its granted lands (odd sections) within that township, was not only reasonable but, being undoubtedly known to Congress, must be deemed to have been approved by and in effect incorporated in the Act of June 25, 1910, c. 406, 36 Stat. 834, which makes no change in the grantee's obligation beyond advancing the time of payment. This view is corroborated by the Senate and House committee reports preceding and explaining the Act of 1910. As a demand by the Secretary of the Interior based on the Act of 1910, supra, that the railroad grantee make a deposit to cover the entire cost of surveying a township, in which only part of the lands belongs to such grantee, is clearly unwarranted by those acts, its effectuation may be enjoined if the other elements requisite to such relief are present. The claim 'evidenced by such a demand casts a serious cloud on the large areas of other unsurveyed land in the railroad grants and therein threatens the grantee with serious embarrassment; and the provision in the Act of 1910 for forfeiture if the demand be not complied with, to be followed by proceedings by the Attorney General, is also to be considered as a reason for equitable relief. The grantee is not required, in order to test the validity of such a demand, to adopt the hazardous and embarrassing course of ignoring it and defending such suit as the Attorney General may institute under the Act of 1910. The Secretary of the Interior having demanded under the Act of 1910, supra, an amount equal to the entire cost of surveying certain townships of which the railroad grantee could not lay claim to more than half, a tender of one-half the amount demanded was adequate. 43 App. D. C. 497, reversed.

This is a suit to enjoin the Secretary of the Interior from insisting upon or giving effect to a demand heretofore made by him on the plaintiff to the effect that the latter make an advance deposit, under the Act of June 25, 1910, chap. 406, 36 Stat. at L. 834, Comp. Stat. 1916, § 4914, of $5,500 to cover the cost of surveying certain lands within the primary limits of the land grant made by the Act of July 27, 1866, chap. 278, 14 Stat. at L. 292, to the Atlantic & Pacific Railroad Company, to whose rights the plaintiff has succeeded. The court of first instance refused the injunction and dismissed the bill, and its action was affirmed. 43 App. D. C. 497. The land grant was made in aid of the construction of a proposed railroad from Missouri through Arizona to the Pacific ocean, and included, subject to exceptions not here material, every alternate odd-numbered section of public land within defined limits on either side of the road. The lands along the proposed road had not been surveyed at the date of the grant, but the President was to cause them to be surveyed as the construction proceeded; and as each 25 miles of road was completed patents were to be issued for the granted lands lying opposite that section. The grant was made upon condition that construction be commenced within two years and that not less than 50 miles of road be completed during each year thereafter; and the granting act was declared to be subject to addition, alteration, amendment, or repeal by Congress, due regard being had for the rights of the grantee. Although expressly contemplating that the granted lands should be surveyed along with the other lands on each side of the road, the granting act said nothing about who should bear the cost of the survey. At first the grantee did not proceed with the construction at the rate prescribed (Atlantic & P. R. Co. v. Mingus, 165 U. S. 413, 442, 41 L. ed. 770, 781, 17 Sup. Ct. Rep. 348; House Report No. 193, 49 Cong. 1st Sess.), and during the continuance of this default Congress incorporated in the Appropriation Act of July 31, 1876, chap. 246, 19 Stat. at L. 121, Comp. Stat. 1916, § 4882, a provision requiring the grantee, as also other similar grantees, to pay for the survey of the granted lands, and directing that this be done in advance of the issue of the patents. This provision, it is contended, infringed upon the vested rights of the grantee, and therefore was repugnant to the due process of law clause of the 5th Amendment to the Constitution. But, in view of the grantee's default and the reserved power to add to, alter, amend, or repeal the granting act, the contention must be held untenable. This necessarily follows from the decisions in Northern P. R. Co. v. Traill County (Northern P. R. Co. v. Rockne) 115 U. S. 600, 29 L. ed. 477, 6 Sup. Ct. Rep. 201, and New Orleans P. R. Co. v. United States, 124 U. S. 124, 31 L. ed. 383, 8 Sup. Ct. Rep. 417. Under the rectangular system of surveying the public lands, which long has been in force, they are divided into townships and sections bounded by north and south and east and west lines. A township consists of thirty-six sections, each approximately 1 mile square,—arranged in six rows and progressively numbered by starting with the northeasterly one and proceeding west through the upper row, then east through the second row, and then alternately west and east through the others. Rev. Stat. § 2395, Comp. Stat. 1916, § 4803. A township has the same number of odd-numbered sections that it has of even-numbered ones, and the two are so arranged that they alternate just as do the different colored squares on a checker board. The only lines run in the course of the survey are the township lines and the exterior section lines and the only monuments erected or placed are those which mark these lines. Every section line is a boundary between two sections, one having an odd and the other an even number. A township cannot be divided until its exterior lines are established, and the lines of the alternate odd-numbered sections cannot be established without at the same time and by the same acts establishing the lines of the even-numbered sections. In short, the system is such that a township is surveyed as a unit. With this surveying system in mind, the officers of the Land Department construed the provision of 1876 as intended to charge the grantee with the cost of surveying the granted lands, and not with the cost of surveying the township. A plan for dividing the cost on an acreage basis between the granted and the ungranted lands was accordingly adopted. By it, if the granted lands constituted half the total area, as they would where all the odd-numbered sections passed under the grant, the grantee was charged with half the total cost. This plan was followed uniformly as to all the land grants coming within the purview of that provision up to the passage of the Act of June 25, 1910, supra. Of the terms of this act it suffices to say in this connection that it requires the cost of surveying the 'lands granted' to be deposited within ninety days after a demand by the Secretary of the Interior specifying the amount required and the lands to be surveyed. It makes no other change in the duty or obligation of the grantee. In other words, what is to be paid remains the same as before, but the time for payment is advanced. Following this act the officers of the Land Department adhered to the view that the cost to be paid was that of surveying the granted lands, and continued to divide the cost of surveying the township according to the plan previously adopted, save as a different course was pursued in this and possibly a few other instances. The demand by the Secretary, out of which this suit arose, relates to the survey of four townships in Arizona, the odd-numbered sections of which are claimed by the plaintiff under the grant of 1866. The amount specified in the demand is the estimated cost of surveying these townships, and not a proportional part of the total cost corresponding to the acreage of the granted lands. The townships lie opposite the constructed portion of the road, and, speaking generally, the plaintiff's right to the odd-numbered sections is not questioned; indeed, it is the basis of the Secretary's demand. The townships also lie within the limits of a forest reserve, but this does not affect the plaintiff's rights under the grant, for the reserve was established long after the road was constructed. The construction which the officers of the Land Department placed upon provision of 1876, if not the only permissible one, was obviously both reasonable and equitable. Their uniform adherence to it for over thirty years prior to the Act of 1910 gave it additional force, and when Congress, with undoubted knowledge of what had been done, chose, as it did in passing that act, to leave the terms of the former provision undisturbed, save as the time for payment was advanced, the departmental construction received a further sanction which, in effect, incorporated it into the statute. Convincing evidence that Congress took the same view of the matter as did the officers of the Land Department is afforded by the committee reports on the Act of 1910, wherein the grantees in the land grants were spoken of as under an existing duty 'to pay one half the cost of surveying the lands within their granted limits,' and the Secretary of the Interior was encouraged to call upon Congress 'for a sufficient appropriation, from time to time, to cover the government's share of the cost of the work of surveying as it progressed.' See Senate Report No. 609, 61st Cong. 2d Sess., which includes the House Report. One of the reports, in evident explanation of provisions in the act intended to hasten such surveys, said: 'It is deemed wise and important that these lands be surveyed as promptly as possible for various reasons: first, that they may become taxable by the states and communities; second, that the government may dispose of its lands which join the railroad lands, and in order that where the railroad lands occur within forest reserves—about 3,000,000 acres of the unsurveyed lands being in reserves—the government officials may be able to determine the boundaries of the public lands for the purpose of regulating and controlling the same, selling the timber, etc.' We conclude that the provision of 1876, as supplemented by the Act of 1910, gives no warrant for demanding of the grantee in a land grant a deposit covering the entire cost of surveying a township, wherein the grantee is entitled to only a part of the lands, and that in making such a demand of the plaintiff the defendant plainly exceeded his authority. Thus, the demand was an unauthorized act, done under color of office, and the defendant properly may be enjoined from insisting upon or giving effect to it, unless it be that there is an absence of other elements essential to granting such relief. We think the other elements are not wanting. There are millions of acres of unsurveyed lands within the primary limits of the unforfeited portion of the grant of 1866. See Senate Report, supra. The plaintiff is entitled to many of the odd-numbered sections within the unsurveyed areas. A claim such as is evidenced by the demand made by the defendant, unless and until it is adjudged unauthorized, will cast a serious cloud upon the plaintiff's rights in the granted lands remaining unsurveyed and be a source of serious embarrassment. Besides, the Act of 1910 contemplates that when a demand thereunder is not complied with the rights of the grantee in the granted lands specified in the demand 'shall cease and forfeit' to the United States, and the Secretary shall notify the Attorney General in order that the latter may begin 'proceedings to declare the forfeiture' and to restore the lands to the public domain. The plaintiff was not required, in order to test the validity of the demand, to permit the ninety days to pass and to rely entirely upon defending such suit as might be brought by the Attorney General. On the contrary, if the demand was unlawful, as we hold it was, the plaintiff was entitled to sue in equity to have the defendant enjoined from insisting upon or giving any effect to it. The hazard and embarrassment incident to any other course were such as to entitle it to act promptly and affirmatively, and of course there was no remedy at law that would be as plain, adequate, and complete as a suit such as this against the defendant. The plaintiff promptly tendered a deposit of half the amount demanded, but the tender was rejected. As the granted lands could not, at most, be more than half the acreage in the townships, and the amount demanded was what was required to survey the entire acreage, the tender was adequate. Decree reversed.

243.US.476

A conspiracy to influence a congressional election by bribery of voters is not a conspiracy to defraud the United States within the meaning of § 37 of the Penal Code, formerly § 5440 of the Revised Statutes. Qumre: Whether the power of Congress to regulate elections of Senators and Representatives, Const., Art. I, § 4, is applicable to a general nominating primary as distinguished from a final election? The primary election law of West Virginia, Acts 1915, c. 26, pp. 222, 246, provides that only candidates belonging to a political party which polled three per cent. of the vote of the State at the last preceding general election can be voted for, excludes ifidependent and other voters not regular. and qualified members and voters of such a party from participation in the primary, and further provides that, after the primary, candidates, including persons who have failed therein, may be nominated by certifioate signed by not less than five per cent. of the entire vote of the last preceding election. Held, That the rights which candidates for nomination for the office of Senator of the United States may have in such a primary come wholly from the state law; and a conspiracy to deprive them of such rights by debauching the primary with illegal votes for an opposing candidate is- not within the scope of § 19 of the Penal Code (formerly Rev. Stats., § 5508) designed for thb protection of rights and privileges secured by the Constitution or laws of the United States. Thb Federal Corrupt Practices Act, and amendments (c. 392, 36 Stat. 822; c. 33, 37 Stat. 25; c. 349, 37 Stat. 360), recognizing primary elections and limiting the expenditures of candidates for Senator in connection with them, are not in effect an adoption of all state primary laws as acts of Congress. The temporary measure enacted by Congress for the conduct of the nomination and election of Senators until other provision should be made by state legislation (c. 103, 38 Stat. 384) was superseded as to West Virginia by the primary law of that State of February 20, 1914, effective ninety days after its passage. 234 Fed. Rep. 446; 236 Fed. Rep..993, affirmed.

These four cases were argued together because the indictments in the first three must be justified, it at all, under the same section (§ 37) of the Criminal Code of the United States [35 Stat. al L. 1096, chap. 321, Comp. Stat. 1913, § 10,201], while the fourth involves the application of § 19 of that Code to the same state of facts which we have in the third case. In the Gradwell Case (No. 683) and in the Hambly Case (No. 684) the fourteen defendants are charged in the indictments with having conspired together 'to defraud the United States,' and to commit a wilful fraud upon the laws of the state of Rhode Island, by corrupting and debauching, by bribery of voters, the general election held on the 3d of November, 1914, at which a Representative in Congress was voted for and elected in the second congressional district of Rhode Island in the Gradwell Case, and in the first congressional district in the Hambly Case, thereby preventing 'a fair and clean' election. No. 775 relates to the conduct of a primary election held in the state of West Virginia on the 6th of June, 1916, under a law of that state providing for a state-wide nomination of candidates for the United States Senate. In the indictment twenty defendants are charged with conspiring 'to defraud the United States in the matter of its governmental right to have a candidate of the true choice and preference of the Republican and Democratic parties nominated for said office and one of them elected,' by causing and procuring a large number of persons who had not resided in the state a sufficient length of time to entitle them to vote under the state law, to vote at the primary for a candidate named, and also to procure four hundred of such persons to vote more than once at such primary election. The indictment in No. 776 charges that the same defendants named in No. 775 conspired together to 'injure and oppress' White, Sutherland, and Rosenbloom, three candidates for the Republican nomination for United States Senator who were voted for at the primary election held in West Virginia on June 6th, 1916, under a law of that state, by depriving them of the 'right and privilege of having each Republican voter vote, and vote once only, for some one' of the Republican candidates for such nomination, and of not having any votes counted at such election except such as were cast by Republican voters duly qualified under the West Virginia law. The charge is that the defendants conspired to accomplish this result by procuring a thousand persons, who were not qualified to vote under the state law, because they had not resided in that state a sufficient length of time, to vote for an opposing candidate, William F. Hite, and many of them to vote more than once, and to have their votes cast, counted, and returned as cast in favor of such candidate. A demurrer to the indictment by each of the defendants in each case, on the ground that it fails to set forth any offense under the laws of the United States, was sustained by the district court of the district of Rhode Island in the first two cases and of the southern district of West Virginia in the third. The cases are here on error. It is plain from the foregoing statement that the indictments in the first three cases are based solely upon the charge that the defendants conspired 'to defraud the United States,' in violation of § 37 of the Criminal Code, and that the indictment in No. 776 is based upon the charge that three candidates for the nomination for Senator of the United States were 'injured and oppressed,' within the meaning of § 19 of the Criminal Code, by a conspiracy on the part of the defendants to compass their defeat by causing illegal voting for an opposing party candidate at the primary election. The applicable portions of §§ 37 and 19 are as follows: 'Section 37. If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner for any purpose, . . . each of the parties to such conspiracy shall be fined not more than ten thousand dollars, or imprisoned not more than two years, or both. 'Section 19. If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise of enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, . . . they shall be fined not more than five thousand dollars and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States.' The argument of counsel for plaintiff in error in the first three cases is that the United States government has the right to honest, free, and fair elections, that a conspiracy to corrupt electors by bribery has for its object the denial and defeat of this right, and that it therefore is a scheme to defraud the United States within the meaning of § 37. This presents for decision the questions: Is § 37 of the Criminal Code applicable to congressional elections, and, if it is, has the United States such an interest or right in the result of such elections that to bribe electors constitutes a fraud upon the government within the meaning of this section? To admit, as it must be admitted, that the people of the United States, and so their government, considered as a political entity, have an interest in and a right to honest and fair elections, advances us but little toward determining whether § 37 was enacted to protect that right, and whether a conspiracy to bribe voters is a violation of it. Obviously the government may have this right and yet not have enacted this law to protect it. It may be, as is claimed, that Congress intended to rely upon state laws and the administration of them by state officials to secure honest elections, and that this section was enacted for purposes wholly apart from those here claimed for it. To answer the questions presented requires that we look to the origin and history of § 37, and that we consider what has been, and is now, the policy of Congress in dealing with the regulation of elections of Representatives in Congress. Section 37 first appears as § 30 of 'An Act to Amend Existing Law Relating to Internal Revenue, and for Other Purposes.' enacted on March 2, 1867 (14 Stat. at L. p. 471, chap. 169, Comp. Stat. 1913, § 5895), and, except for an omitted not relevant provision, the section has continued from that time to this, in almost precisely its present form. It was carried into the revision of the United States Statutes of 1873-74 as § 5440 of chapter 5, the title of which is 'Crimes against Operations of the Government,' while another chapter, chapter 7 of the revision, deals with 'Crimes against the Elective Franchise and Civil Rights of Citizens.' Forty-two years after its first enactment the section was carried into the Criminal Code (in force on and after January 1st, 1910), where it now appears as § 37, again in a chapter, now chapter 4, devoted to 'Offenses against the Operation of the Government,' while chapter 3 of the Code deals with 'Offenses against the Elective Franchise and Civil Rights of Citizens.' The section has been widely applied in the prosecution of frauds upon the revenue, in land cases, and to other operations of the government, and while no inference or presumption of legislative construction is to be drawn from the chapter headings under which it is found in the Criminal Code (§ 339), nevertheless the history of the origin, classification, and use made of the section, which we have just detailed, are not without significance, and taken with the fact that confessedly this is the first time that it has been attempted to extend its application to the conduct of elections, they suggest strongly that it was not intended by Congress for such a purpose. Further aid in determining the application and construction of the section may be derived from the history of the conduct and policy of the government in dealing with congressional elections. The power of Congress to deal with the election of Senators and Representatives is derived from § 4, article 1, of the Constitution of the United States, providing that: 'The times, places and manner of holding elections for Senators and Representatives shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law, make or alter such regulations, except as to the places of choosing Senators.' Whatever doubt may at one time have existed as to the extent of the power which Congress may exercise under this constitutional sanction in the prescribing of regulations for the conduct of elections for Representatives in Congress, or in adopting regulations which states have prescribed for that purpose, has been settled by repeated decisions of this court, in Ex parte Siebold, 100 U. S. 371, 391, 25 L. ed. 717, 724 (1879); Ex parte Clark, 100 U. S. 399, 25 L. ed. 715 (1879); Ex parte Yarbrough, 110 U. S. 651, 28 L. ed. 274, 4 Sup. Ct. Rep. 152 (1884); and in United States v. Mosley, 238 U. S. 383, 59 L. ed. 1355, 35 Sup. Ct. Rep. 904(1915). Although Congress has had this power of regulating the conduct of congressional elections from the organization of the government, our legislative history upon the subject shows that except for about twenty-four of the one hundred and twenty-eight years since the government was organized, it has been its policy to leave such regulations almost entirely to the states, whose representatives Congressmen are. For more than fifty years no congressional action whatever was taken on the subject until 1842, when a law was enacted requiring that Representatives be elected by districts (5 Stat. at L. p. 491, chap. 47), thus doing away with the practice which had prevailed in some states of electing on a single state ticket all of the members of Congress to which the state was entitled. Then followed twenty-four years more before further action was taken on the subject, when Congress provided for the time and mode of electing United States Senators (14 Stat. at L. 243, chap. 245), and it was not until four years later, in 1870, that, for the first time, a comprehensive system for dealing with congressional elections was enacted. This system was comprised in §§ 19-22 of the act approved May 31st, 1870 (16 Stat. at L. p. 144, chap. 114), in §§ 5 and 6 of the act approved July 14, 1870 (16 Stat. at L. p. 254, chap. 254), and in the act amending and supplementing these acts, approved June 10, 1872 (17 Stat. at L. pp. 347-349, chap. 415). These laws provided extensive regulations for the conduct of congressional elections. They made unlawful false registration, bribery, voting without legal right, making false returns of votes cast, interfering in any manner with officers of election, and the neglect by any such officer of any duty required of him by state or Federal law; they provided for appointment by circuit judges of the United States of persons to attend at places of registration and at elections, with authority to challenge any person proposing to register or vote unlawfully, to witness the counting of votes, and to identify by their signatures the registration of voters and election tally sheets; and they made it lawful for the marshals of the United States to appoint special deputies to preserve order at such elections, with authority to arrest for any breach of the peace committed in their view. These laws were carried into the revision of the United States Statutes of 1873-74, under the title, 'Crimes against the Elective Franchise and Civil Rights of Citizens,' Rev. Stat. §§ 5506 to 5532, inclusive. It will be seen from this statement of the important features of these enactments that Congress by them committed to Federal officers a very full participation in the process of the election of Congressmen, from the registration of voters to the final certifying of the results, and that the control thus established over such elections was comprehensive and complete. It is a matter of general as of legal history that Congress, after twenty-four years of experience, returned to its former attitude toward such elections, and repealed all of these laws with the exception of a few sections not relevant here. (Act approved February 8, 1894, 28 Stat. at L. p. 36, chap. 25, Comp. Stat. 1913, § 1015.) This repealing act left in effect, as apparently relating to the elective franchise, only the provisions contained in the eight sections of chapter 3 of the Criminal Code, §§ 19 to 26, inclusive, which have not been added to or substantially modified during the twenty-three years which have since elapsed. The policy of thus intrusting the conduct of elections to state laws, administered by state officers, which has prevailed from the foundation of the government to our day, with the exception, as we have seen, of twenty-four years, was proposed by the makers of the Constitution, and was entered upon advisedly by the people who adopted it, as clearly appears from the reply of Madison to Monroe in the debates in the Virginia Convention, saying that: 'It was found impossible to fix the time, place, and manner of election of Representatives in the Constitution. It was found necessary to leave the regulation of these, in the first place, to the state governments as being best acquainted with the situation of the people, subject to the control of the general government, in order to enable it to produce uniformity and prevent its own dissolution. . . . Were they exclusively under the control of the state governments, the general government might easily be dissolved. But if they be regulated properly by the state legislatures the congressional control will probaby never be exercised. The power appears to me satisfactory, and as unlikely to be abused as any part of the Constitution.' Records of the Federal Convention. Farrand, vol. 3, p. 311. And, in Essay No. LIX. of the Federalist, Hamilton writes: 'They (the convention) have submitted the regulation of elections for the Federal government, in the first instance, to the local administrations; which in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety.' With it thus clearly established that the policy of Congress for so great a part of our constitutional life has been, and now is, to leave the conduct of the election of its members to state laws, administered by state officers, and that whenever it has assumed to regulate such elections it has done so by positive and clear statutes, such as were enacted in 1870, it would be a strained and unreasonable construction to apply to such elections this § 37, originally a law for the protection of the revenue, and for now fifty years confined in its application to 'Offenses against the Operations of the Government,' as distinguished from the processes by which men are selected to conduct such operations. When to all this we add that there are no common-law offenses against the United States (United States v. Hudson, 7 Cranch, 32, 3 L. ed. 259; United States v. Eaton, 144 U. S. 677, 36 L. ed. 591, 12 Sup. Ct. Rep. 764), that before a man can be punished as a criminal under the Federal law his case must be 'plainly and unmistakably' within the provisions of some statute (United States v. Lacher, 134 U. S. 624, 628, 33 L. ed. 1080, 1083, 10 Sup. Ct. Rep. 625), and that Congress has always under its control the means of defeating frauds in the election of its members by enacting appropriate legislation and by resort to the constitutional grant of power to judge of the elections, returns, and qualifications of its own members, we cannot doubt that the district court was right in holding that the section was never intended to apply to elections, and that to bribe voters to vote at such an election is not such a fraud upon the United States or upon candidates or the laws of Rhode Island as falls within either the terms or purposes of the section. There remains to be considered the second West Virginia case, No. 776. The indictment in this case charges that the defendants conspired to procure and did procure a large number of persons, not legal voters of West Virginia, to vote, and a number of them to vote more than once, in favor of one of the four candidates for the Republican nomination for United States Senator at a state primary. The claim is that such illegal voting 'injured and oppressed' the three other party candidates, within the meaning of § 19 of the Criminal Code of the United States, by depriving them of a right which it is argued they had 'by the Constitution and laws of the United States,' to have only qualified Republican voters of the state vote, not more than once, for some one of the candidates of that party for Senator at such election. Here again, confessedly, an attempt is being made to make a new application of an old law to an old type of crime; for § 19 has been in force, in substance, since 1870, but has never before been resorted to as applicable to the punishment of offenses committed in the conduct of primary elections or nominating caucuses or conventions, and the question presented for decision is: Did the candidates named in the indictment have such a right under the applicable West Virginia law that a conspiracy to corrupt the primary election held under that law on the 6th day of last June 'injured and oppressed' them within the meaning of § 19 of the Federal Criminal Code? That this § 19 of the Criminal Code is applicable to certain conspiracies against the elective franchise is decided by this court in United States v. Mosley, 238 U § 383, 59 L. ed. 1355, 35 Sup. Ct. Rep. 904, but that decision falls far short of making the section applicable to the conduct of a state nominating primary, and does not advance us far toward the claimed conclusion that illegal voting for one candidate at such a primary so violates a right secured to the other candidates by the United States Constitution and laws as to constitute an offense within the meaning and purpose of the section. The constitutional warrant under which regulations relating to congressional elections may be provided by Congress is in terms applicable to the 'times, places, and manner of holding elections (not nominating primaries) for Senators and Representatives.' Primary elections, such as it is claimed the defendants corrupted, were not only unknown when the Constitution was adopted, but they were equally unknown for many years after the law, now § 19, was first enacted. They are a development of comparatively recent years, designed to take the place of the nominating caucus or convention, as these existed before the change, and even yet the new system must be considered in an experimental stage of development, under a variety of state laws. The claim that such a nominating primary, as distinguished from a final election, is included within the provision of the Constitution of the United States, applicable to the election of Senators and Representatives, is by no means indisputable. Many state supreme courts have held that similar provisions of state Constitutions relating to elections do not include a nominating primary. Ledgerwood v. Pitts, 122 Tenn. 570, 125 S. W. 1036; Montgomery v. Chelf, 118 Ky. 766, 82 S. W. 388; State ex rel. Von Stade v. Taylor, 220 Mo. 619, 119 S. W. 373; State ex rel. Zent v. Nichols, 50 Wash. 508, 97 Pac. 728; Gray v. Seitz, 162 Ind. 1, 69 N. E. 456; State ex rel. Nordin v. Erickson, 119 Minn. 152, 137 N. W. 385. But even if it be admitted that, in general, a primary should be treated as an election within the meaning of the Constitution, which we need not and do not decide, such admission would not be of value in determining the case before us, because of some strikingly unusual features of the West Virginia law under which the primary was held, out of which this prosecution grows. By its terms this law provided that only candidates for Congress belonging to a political party which polled 3 per cent of the vote of the entire state at the last preceding general election could be voted for at this primary, and thereby, it is said at the bar, only Democratic and Republican candidates could be and were voted for, while candidates of the Prohibition and Socialist parties were excluded, as were also independent voters who declined to make oath that they were 'regular and qualified members and voters' of one of the greater parties. Even more notable is the provision of the law that, after the nominating primary, candidates, even persons who have failed at the primary, may be nominated by certificate signed by not less than 5 per cent of the entire vote polled at the last preceding election. Acts West Va. 1915, chap. 26, pp. 222, 246. Such provisions as these, adapted though they may be to the selection of party candidates for office, obviously could not be lawfully applied to a final election at which officers are chosen, and it cannot reasonably be said that rights which candidates for the nomination for Senator of the United States may have in such a primary under such a law are derived from the Constitution and laws of the United States. They are derived wholly from the state law, and nothing of the kind can be found in any Federal statute. Even when Congress assumed, as we have seen, to provide an elaborate system of supervision over congressional elections, no action was taken looking to the regulation of nominating caucuses or conventions, which were the nominating agencies in use at the time such laws were enacted. What power Congress would have to make regulations for nominating primaries, or to alter such regulations when made by a state, we need not inquire. It is sufficient to say that as yet it has shown no disposition to assume control of such primaries or to participate in them in any way, and that it is not for the courts, in the absence of such legislation, to attempt to supply it by stretching old statutes to new uses, to which they are not adapted and for which they were not intended. In this case, as in the others, we conclude that the section of the Criminal Code relied upon, originally enacted for the protection of the civil rights of the then lately enfranchised negro, cannot be extended so as to make it an agency for enforcing a state primary law, such as this one of West Virginia. The claim that the effect of the Federal Corrupt Practices Act (June 25, 1910, 36 Stat. at L. chap. 392, p. 822, Comp. Stat. 1913, § 188, amended August 19, 1911 [37 Stat. at L. 25, chap. 33, Comp. Stat. 1913, § 192], and August 23d, 1912 [37 Stat. at L. 360, chap. 349, Comp. Stat. 1913, § 195]), recognizing primary elections and limiting the expenditures of candidates for senator in connection with them, is, in effect, an adoption by Congress of all state primary laws, is too unsubstantial for discussion; and the like claim that the temporary measure (Act of June 4, 1914, 38 Stat. at L. p. 384, chap. 103), enacted by Congress for the conduct of the nomination and election of Senators until other provisions should be made by state legislation cannot be entertained, because this act was superseded by the West Virginia primary election law, passed February 20th, 1914, effective ninety days after its passage. It results that the judgments of the District Court in each of these cases must be affirmed.

243.US.622

No. 7, Original. Argued December 6, 7, 8, 1916.--Order entered. March 6, 1917.

Messrs. John W. Lacey and N. E. Corthell for complainant. Mr. Fred Farrar for the state of Colorado. Mr. Delph E. Carpenter for the Greeley-Poudre Irrigation District. Mr. Julius C. Gunther for the Laramie-Poudre Reservoirs & Irrigation Company. It is ordered that this case be restored to the docket for reargument. 1. Counsel are requested to specially direct their attention to the rule which they deem should properly be applied to a solution of the controversy for decision: That is, whether the rights asserted are to be tested and determined solely by the application of the general principles of prior appropriation, without regard to state boundaries, or whether, on the contrary, the general principles of prior appropriation are subject to be restricted or their operation limited in this case by state lines, and if so, by what principles, under that assumption, the case is to be controlled. 2. They are moreover requested not merely by generalizations to state the facts relied upon, but specifically, by careful reference to the pages of the record, and to group them under the various propositions relied upon, including the extent of the use of water in both states when the work complained of was begun and when this suit was commenced, and the extent of appropriation made or authorized in either or both states since its commencement. 3. In view of the legislation of Congress concerning reclamation and the extensive public works which have been constructed under that legislation and the possible consequences which may result from the rule to be applied in the solution of this controversy, the clerk is instructed to notify the Attorney General of the United States of this order for reargument.

244.US.571

A case arising under the Federal Employers' Liability Act, as amended April 5, 1910, c. 143, 36 Stat. 291, cannot be removed to the District *Court upon the ground of diversity of citizenship. Plaintiff's injury occurred while he was helping in the task of raising a wrecked car to rescue a fellow employee and, coincidently, to clear a track for interstate commerce. Held: Engaged in interstate commerce, within the Federal Employers' Liability Act. The mere fact that the employee was engaged in interstate commerce when called aside by the event which led to his injury does not stamp his employment at the time of injury as an employment in interstate commerce. Finding no reason for disturbing the finding of both state courts as to the defendant carrier's negligence,. and no exceptional circumstances being involved, this court merely announces its conclusion. 16 Ga. App. 551, affirmed.

Puckett recovered a verdict and judgment in the city court of Atlanta against the Southern Railway Company for damages arising from personal injuries sustained by him in August, 1911, while at work for the company in its yard at Atlanta, Georgia. As submitted to the jury, the action was founded upon the Federal Employers' Liability Act of April 22, 1908, as amended by Act of April 5, 1910 (35 Stat. at L. 65, chap. 149, 36 Stat. at L. 291, chap. 143, Comp. Stat. 1916, § 8662). The judgment was affirmed by the Georgia court of appeals (16 Ga. App. 551, 85 S. E. 809), and a writ of error brings it under our review. The record shows that a petition and bond for the removal of the cause to the appropriate Federal court upon the ground of diversity of citizenship was filed in due time by the defendant and overruled by the trial court. An assignment of error based upon this ruling has been abandoned, and properly so, in view of our decision in Kansas City Southern R. Co. v. Leslie, 238 U. S. 599, 602, 59 L. ed. 1478, 1482, 35 Sup. Ct. Rep. 844. Whether, at the time he was injured, plaintiff was employed in interstate commerce, is the only substantial question; there being no dispute that defendant at that time was a common carrier by railroad, engaged in commerce of that character. As detailed in the opinion of the court of appeals, the circumstances of the occurrence were as follows: Plaintiff had been engaged in inspecting cars which had been put into an interstate train—No 75—that ran between Atlanta, Georgia, and Birmingham, Alabama; he had inspected about 25 cars, and there remained to be inspected about 12 cars, which were to be in the same train; while plaintiff was waiting for these, a collision between other cars of defendant occurred in the yard nearby, and several tracks were blocked by the wreckage; one of defendant's employees, named O'Berry, was caught in the collision and pinned beneath a car; in obedience to the printed rules of the company, plaintiff went immediately to the scene of the wreck to render what assistance he could, and was there instructed by a superior employee to go and get a 'jack' to assist in raising the wrecked car so as to extricate O'Berry and clear the tracks of the wreckage; some of the remaining cars not yet placed in train No. 75 were to have been hauled over the tracks that were obstructed by the wreck, and on account of the obstruction it became necessary to detour them, whereby train No. 75 was delayed for about an hour; while plaintiff, assisting in clearing up the wreck, was carrying some blocks on his shoulder to be used in jacking up the wrecked car and replacing it upon the track, he stumbled over certain large clinkers which were on the roadway near the track, and, in stumbling, struck his foot against some old cross ties overgrown with grass, and in consequence fell and was seriously injured. The court held that although plaintiff's primary object may have been to rescue his fellow employee, his act nevertheless was the first step in clearing the obstruction from the tracks, to the end that the remaining cars for train No. 75 might be hauled over them; that his work facilitated interstate transportation on the railroad, and that consequently he was engaged in interstate commerce when injured. We concur in this view. From the facts found, it is plain that the object of clearing the tracks entered inseparably into the purpose of jacking up the car, and gave to the operation the character of interstate commerce. The case is controlled by Pedersen v. Delaware, L. & W. R. Co. 229 U. S. 146, 152, 57 L. ed. 1125, 1128, 33 Sup. Ct. Rep. 648, Ann. Cas. 1914C, 153, 3 N. C. C. A. 779; New York C. & H. R. R. Co. v. Carr, 238 U. S. 260, 263, 59 L. ed. 1298, 1299, 35 Sup. Ct. Rep. 780, 9 N. C. C. A. 1; Pennsylvania Co. v. Donat, 239 U. S. 50, 60 L. ed. 139, 36 Sup. Ct. Rep. 4; Louisville & N. R. Co. v. Parker, 242 U. S. 13, 61 L. ed. 119, 37 Sup. Ct. Rep. 4. Pedersen v. Delaware, L. & W. R. Co. supra, holds that a workman employed in maintaining interstate tracks in proper condition while they are in use is employed in interstate commerce; the other cases are to the effect that preparatory movements in aid of interstate transportation are a part of such commerce within the meaning of the act. Of course, we attribute no significance to the fact that plaintiff had been engaged in inspecting interstate cars before he was called aside by the occurrence of the collision. Illinois C. R. Co. v. Behrens, 233 U. S. 473, 478, 58 L. ed. 1051, 1055, 34 Sup. Ct. Rep. 646, Ann. Cas. 1914C, 163, 10 N.C.C.A. 153; Erie R. Co. v. Welsh, 242 U. S. 303, 306, 61 L. ed. 319, 37 Sup. Ct. Rep. 116. It is contended that there was no sufficient ground for attributing negligence to defendant because of the presence of large clinkers in the path along which plaintiff, in the course of his duty, was called upon to pass. This is no more than a question of fact, without exceptional features, and we content ourselves with announcing the conclusion that we see no reason for disturbing the result reached by two state courts. Great Northern R. Co. v. Knapp, 240 U. S. 464, 466, 60 L. ed. 745, 751, 36 Sup. Ct. Rep. 399. Judgment affirmed. The CHIEF JUSTICE dissents.

246.US.338

Under the Act of June 16, 1880, c. 243, 1 Stat. 284, as amended March -3, 1881, c. 134, 21 Stat. 566, conferring jurisdiction on the Court of Claims over certain claims against the District of Columbia, a claimant is not entitled to receive interest as such, save any that may accrue after rendition of the judgment, where the recovery is not based upon a contract expressly stipulating for interest. Rev. Stats., § 1091. The provision of § 6 of the Act of 1880, supra, for satisfying such judgments with bonds bearing coupons for interest from the date upon which the claims were due and payable, amounted to giving interest, at a limited rate, before and after judgment, where payment was made in that mode; but where the amount of such bonds remaining unissued, of the maximum authorized by that section, was less than the amount of the claim allowed, the Court of Claims properly adjudged that, with respect to any part of the claim not paid in that special manner, there was no right to interest prior to the rendition of the judgment. Affrmed.

This is an appeal by claimant in a suit that was commenced by her testator in the Court of Claims in the year 1880, under Act of June 16, 1880 (chapter 243, 21 Stat. 284). A judgment was rendered in claimant's favor after the amendatory Act of February 13, 1895, c. 87, 28 Stat. 664 (Johnson, Adm'r, v. D. C., 31 Ct. Cl. 395), which judgment was reversed by this court in 1897, and the cause remanded for further proceedings. District of Columbia v. Johnson, 165 U. S. 330, 17 Sup. Ct. 362, 41 L. Ed. 734. After a long delay, proceedings were had which resulted in a judgment in favor of claimant February 21, 1916, from which the District of Columbia has not appealed. Claimant's appeal relates to the question of interest upon the amount recovered. The form of the judgment is that the claimant 'do have and recover of and from the District of Columbia in the manner provided by the act of June 16, 1880, chapter 243, seven thousand three hundred and six dollars and twenty-five cents ($7,306.25). Said amounts were due and payable April 1, 1876, but said judgment shall bear interest only from the date of its rendition, and is payable as provided by section 6 of the Act of June 16, 1880 (21 Stat. L. p. 284), as amended by the Act of March 3, 1881 (21 Stat. L. p. 466).' There is no finding that the claim is based upon a contract expressly stipulating for the payment of interest. It is insisted that the court erred in allowing interest only from the date of judgment, rather than from April 1, 1876, the day on which the claim became due and payable. The act of 1880, in its first section, conferred jurisdiction upon the Court of Claims over all claims then existing the District of Columbia arising out of certain operations of the District government during the preceding decade; and as to procedure it declared: 'Said Court of Claims shall have the same power, proceed in the same manner, and be governed by the same rules, in respect to the mode of hearing, adjudication, and determination of said claims, as it now has in relation to the adjudication of claims against the United States.' This, if it stood alone, would leave the question of interest to be governed by the general principle that interest is not recoverable from the government, embodied in section 1091, Rev. Stat.: 'No interest shall be allowed on any claim up to the time of the rendition of judgment thereon by the Court of Claims, unless upon a contract expressly stipulating for the payment of interest,' still in force as section 177, Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1141 [Comp. St. 1916, § 1168]). But other sections of the act of 1880 contain provisions that must be considered. By section 5 it was enacted that, where no appeal was taken, or on affirmance of a judgment in favor of the claimant, 'the sum due thereby shall be paid, as hereinafter provided, by the Secretary of the Treasury,' upon presentation to him of a copy of the judgment properly certified. And by section 6 the Secretary was authorized to demand of the sinking fund commissioner of the District of Columbia so many of the 3.65 per cent. bonds authorized by Act of Congress approved June 20, 1874 (chapter 337, 18 Stat. 120), and amendatory acts, as might be necessary for the payment of the judgments; 'which bonds shall be received by said claimants at par in payment of such judgments, and shall bear date August first, eighteen hundred and seventy-four, and mature at the same time as other bonds of this issue; provided, that before the delivery of such bonds as are issued in payment of judgments rendered as aforesaid on the claims aforesaid, the coupons shall be detached therefrom from the date of said bonds to the day upon which such claims were due and payable; and the gross amount of such bonds heretofore and hereafter issued shall not exceed in the aggregate fifteen millions of dollars.' By amendment of March 3, 1881 (chapter 134, 21 Stat. 458, 466), the Treasurer of the United States as ex officio sinking fund commissioner was authorized, whenever in his opinion it would be more advantageous for the interest of the District of Columbia to do so, to sell the bonds and pay the judgments from the proceeds of the sales instead of delivering the bonds to the claimants. Under the act of 1880, the Court of Claims held that it was necessary it should determine when the claims were due and payable within the meaning of the act, and specify the date in the judgment, in order that the Secretary of the Treasury might know what coupons, if any, were to be detached from bonds delivered by him in payment. Fendall's Case, 16 Ct. Cl. 106, 121. See District of Columbia v. Johnson, 165 U. S. 330, 336, 17 Sup. Ct. 362, 41 L. Ed. 734. Construing sections 1, 5, and 6 of the act of 1880 in connection with section 1091, Rev. Stat. (Comp. St. 1916, § 1168), it is plain that the claimant in such a judgment is not entitled to a recovery of interest as such, saying any that may accrue after the rendition of the judgment, unless the recovery be based upon a contract expressly stipulating for the payment of interest. Section 6, however, provided a special fund out of which claims of this character might be paid, and as this consisted of coupon bonds dated in 1874 and maturing 50 years later, the provision to the effect that coupons maturing after the date upon which the claim was due and payable should accompany the bonds amounted to giving interest at a limited rate, before and after judgment, where payment was made in that mode. But this special mode of payment was qualified by a proviso that the gross amount of such bonds should not exceed $15,000,000; and, as it happens, all except $2,700 had been issued prior to the entry of the judgment now under review. This is admitted in appellant's brief, and may be additionally verified by reference to Annual Report of the Secretary of the Treasury on the State of the Finances for the fiscal year ended June 30, 1915, p. 122; like report for the following fiscal year, p. 92. It was not erroneous for the Court of Claims to take note of the fact that, at the utmost, only a part of the claim could be paid in bonds or from the proceeds of bonds, and that with respect to any part not paid in this special manner there was no right to interest prior to the rendition of the judgment. This is the effect of the judgment as entered. Affirmed. Mr. Justice McREYNOLDS took no part in the consideration or decision of this case.

245.US.60

A city ordinance which forbids colored persons to occupy houses in blocks where the greater number of houses are occupied by white persons, in practical effect prevents the sale of lots in such blocks to colored persons, and is unconstitutional. A white owner, who has made an otherwise valid and enforceable contract to convey such a lot to a colored person, for the erection of a house upon it for occupancy by the vendee, is deprived, in violation of the Fourteenth Amendment, of an essential element of his property,-the right to dispose of it to a constitutionally qualified purebaser,-and may attack the prohibition under the Fourteenth Amendment in a suit for specific performance of the contract against the vendee. A city ordinance forbidding colored persons from occupying houses as residences, or places of abode or public assembly, on blocks where the majority of the houses are occupied by white persons for those purposes, and in like manner forbidding white persons when the conditions as to occupancy are reversed, and which bases the interdiction upon color and nothing more, passes the legitimate bounds of police power and invades the civil right to acquire, enjoy and use property, which is guaranteed in equal measure to all citizens, white or colored, by the Fourteenth Amendment. Such a prohibition can not be sustained upon the grounds that, through race segregation, it serves to diminish miscegenation and promotes the public peace by averting race hostility and conflict, or that it prevents deterioration in value of property owned and occupied by white people; nor does the fact that upon its face it applies impartially to both races relieve it from the vice of discrimination or obviate the objection that it deprives of property without due process of law. Plessy v. Ferguson, 163 U. S. 537, and Berea College Case, 211 U. S. 45, distinguished. 165 Kentucky, 559, reversed.

Buchanan, plaintiff in error, brought an action in the chancery branch of Jefferson circuit court of Kentucky for the specific performance of a contract for the sale of certain real estate situated in the city of Louisville at the corner of Thirty-seventh street and Pflanz avenue. The offer in writing to purchase the property contained a proviso: 'It is understood that I am purchasing the above property for the purpose of having erected thereon a house which I propose to make my residence, and it is a distince part of this agreement that I shall not be required to accept a deed to the above property or to pay for said property unless I have the right under the laws of the state of Kentucky and the city of Louisville to occupy said property as a residence.' This offer was accepted by the plaintiff. To the action for specific performance the defendant by way of answer set up the condition above set forth, that he is a colored person, and that on the block of which the lot in controversy is a part, there are ten residences, eight of which at the time of the making of the contract were occupied by white people, and only two (those nearest the lot in question) were occupied by colored people, and that under and by virtue of the ordinance of the city of Louisville, approved May 11, 1914, he would not be allowed to occupy the lot as a place of residence. In reply to this answer the plaintiff set up, among other things, that the ordinance was in conflict with the Fourteenth Amendment to the Constitution of the United States, and hence no defense to the action for specific performance of the contract. In the court of original jurisdiction in Kentucky, and in the Court of Appeals of that state, the case was made to turn upon the constitutional validity of the ordinance. The Court of Appeals of Kentucky, 165 Ky. 559, 177 S. W. 472, Ann. Cas. 1917B, 149, held the ordinance valid and of itself a complete defense to the action. 'An ordinance to prevent conflict and ill-feeling between the white and colored races in the city of Louisville, and to preserve the public peace and promote the general welfare, by making reasonable provisions requiring, as far as practicable, the use of separate blocks, for residences, places of abode, and places of assembly by white and colored people respectively.' By the first section of the ordinance it is made unlawful for any colored person to move into and occupy as a residence, place of abode, or to establish and maintain as a place of public assembly any house upon any block upon which a greater number of houses are occupied as residences, places of abode, or places of public assembly by white people than are occupied as residences, places of abode, or places of public assembly by colored people. Section 2 provides that it shall be unlawful for any white person to move into and occupy as a residence, place of abode, or to establish and maintain as a place of public assembly any house upon any block upon which a greater number of houses are occupied as residences, places of abode or places of public assembly by colored people than are occupied as residences, places of abode or places of public assembly by white people. Section 4 provides that nothing in the ordinance shall affect the location of residences, places of abode or places of assembly made previous to its approval; that nothing contained therein shall be construed so as to prevent the occupancy of residences, places of abode or places of assembly by white or colored servants or employes of occupants of such residences, places of abode or places of public assembly on the block on which they are so employed, and that nothing therein contained shall be construed to prevent any person who, at the date of the passage of the ordinance, shall have acquired or possessed the right to occupy any building as a residence, place of abode or place of assembly from exercising such a right; that nothing contained in the ordinance shall prevent the owner of any building, who when the ordinance became effective, leased, rented, or occupied it as a residence, place of abode or place of public assembly for colored persons, from continuing to rent, lease or occupy such residence, place of abode or place of assembly for such persons, if the owner shall so desire; but if such house should, after the passage of the ordinance, be at any time leased, rented or occupied as a residence, place of abode or place of assembly for white persons, it shall not thereafter be used for colored persons, if such occupation would then be a violation of section 1 of the ordinance; that nothing contained in the ordinance shall prevent the owner of any building, who when the ordinance became effective, leased, rented or occupied it as a residence, place of abode, or place of assembly for white persons from continuing to rent, lease or occupy such residence, place of abode or place of assembly for such purpose, if the owner shall so desire, but if such household, after the passage of the ordinance, be at any time leased, rented or occupied as a residence, place of abode or place of assembly for colored persons, then it shall not thereafter be used for white persons, if such occupation would then be a violation of section 2 thereof. The ordinance contains other sections and a violation of its provisions is made an offense. The assignments of error in this court attack the ordinance upon the ground that it violates the Fourteenth Amendment of the Constitution of the United States, in that it abridges the privileges and immunities of citizens of the United States to acquire and enjoy property, takes property without due process of law, and denies equal protection of the laws. The objection is made that this writ of error should be dismissed because the alleged denial of constitutional rights involves only the rights of colored persons, and the plaintiff in error is a white person. This court has frequently held that while an unconstitutional act is no law, attacks upon the validity of laws can only be entertained when made by those whose rights are directly affected by the law or ordinance in question. Only such persons, it has been settled can be heard to attack the constitutionality of the law or ordinance. But this case does not run counter to that principle. The property here involved was sold by the plaintiff in error, a white man, on the terms stated, to a colored man; the action for specific performance was entertained in the court below, and in both courts the plaintiff's right to have the contract enforced was denied solely because of the effect of the ordinance making it illegal for a colored person to occupy the lot sold. But for the ordinance the state courts would have enforced the contract, and the defendant would have been compelled to pay the purchase price and take a conveyance of the premises. The right of the plaintiff in error to sell his property was directly involved and necessarily impaired because it was held in effect that he could not sell the lot to a person of color who was willing and ready to acquire the property, and had obligated himself to take it. This case does not come within the class wherein this court has held that where one seeks to avoid the enforcement of a law or ordinance he must present a grievance of his own, and not rest the attack upon the alleged violation of another's rights. In this case the property rights of the plaintiff in error are directly and necessarily involved. See Truax v. Raich, 239 U. S. 33, 38, 36 Sup. Ct. 7, 60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283. We pass then to a consideration of the case upon its merits. This ordinance prevents the occupancy of a lot in the city of Louisville by a person of color in a block where the greater number of residences are occupied by white persons; where such a majority exists colored persons are excluded. This interdiction is based wholly upon color; simply that and nothing more. In effect, premises situated as are those in question in the so-called white block are effectively debarred from sale to persons of color, because if sold they cannot be occupied by the purchaser nor by him sold to another of the same color. This drastic measure is sought to be justified under the authority of the state in the exercise of the police power. It is said such legislation tends to promote the public peace by preventing racial conflicts; that it tends to maintain racial purity; that it prevents the deterioration of property owned and occupied by white people, which deterioration, it is contended, is sure to follow the occupancy of adjacent premises by persons of color. The authority of the state to pass laws in the exercise of the police power, having for their object the promotion of the public health, safety and welfare is very broad as has been affirmed in numerous and recent decisions of this court. Furthermore the exercise of this power, embracing nearly all legislation of a local character is not to be interfered with by the courts where it is within the scope of legislative authority and the means adopted reasonably tend to accomplish a lawful purpose. But it is equally well established that the police power, broad as it is, cannot justify the passage of a law or ordinance which runs counter to the limitations of the federal Constitution; that principle has been so frequently affirmed in this court that we need not stop to cite the cases. The federal Constitution and laws passed within its authority are by the express terms of that instrument made the supreme law of the land. The Fourteenth Amendment protects life, liberty, and property from invasion by the states without due process of law. Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property. Holden v. Hardy, 169 U. S. 366, 391, 18 Sup. Ct. 383, 42 L. Ed. 780. Property consists of the free use, enjoyment, and disposal of a person's acquisitions without control or diminution save by the law of the land. 1 Blackstone's Commentaries (Cooley's Ed.) 127. True it is that dominion over property springing from ownership is not absolute and unqualified. The disposition and use of property may be controlled in the exercise of the police power in the interest of the public health, convenience, or welfare. Harmful occupations may be controlled and regulated. Legitimate business may also be regulated in the interest of the public. Certain uses of property may be confined to portions of the municipality other than the resident district, such as livery stables, brickyards and the like, because of the impairment of the health and comfort of the occupants of neighboring property. Many illustrations might be given from the decisions of this court, and other courts, of this principle, but these cases do not touch the one at bar. The concrete question here is: May the occupancy, and, necessarily, the purchase and sale of property of which occupancy is an incident, be inhibited by the states, or by one of its municipalities, solely because of the color of the proposed occupant of the premises? That one may dispose of his property, subject only to the control of lawful enactments curtailing that right in the public interest, must be conceded. The question now presented makes it pertinent to inquire into the constitutional right of the white man to sell his property to a colored man, having in view the legal status of the purchaser and occupant. Following the Civil War certain amendments to the federal Constitution were adopted, which have become an integral part of that instrument, equally binding upon all the states and fixing certain fundamental rights which all are bound to respect. The Thirteenth Amendment abolished slavery in the United States and in all places subject to their jurisdiction, and gave Congress power to enforce the amendment by appropriate legislation. The Fourteenth Amendment made all persons born or naturalized in the United States, citizens of the United States and of the states in which they reside, and provided that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, and that no state shall deprive any person of life, liberty, or property without due process of law, nor deny to any person the equal protection of the laws. The effect of these amendments was first dealt with by this court in Slaughter House Cases, 16 Wall. 36, 21 L. Ed. 394. The reasons for the adoption of the amendments were elaborately considered by a court familiar with the times in which the necessity for the amendments arose and with the circumstances which impelled their adoption. In that case Mr. Justice Miller, who spoke for the majority, pointed out that the colored race, having been freed from slavery by the Thirteenth Amendment, was raised to the dignity of citizenship and equality of civil rights by the Fourteenth Amendment, and the states were prohibited from abridging the privileges and immunities of such citizens, or depriving any person of life, liberty, or property without due process of law. While a principal purpose of the latter amendment was to protect persons of color, the broad language used was deemed sufficient to protect all persons, white or black, against discriminatory legislation by the states. This is now the settled law. In many of the cases since arising the question of color has not been involved and the cases have been decided upon alleged violations of civil or property rights irrespective of the race or color of the complainant. In Slaughter House Cases it was recognized that the chief inducement to the passage of the amendment was the desire to extend federal protection to the recently emancipated race from unfriendly and discriminating legislation by the states. In Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed. 664, this court held that a colored person charged with an offense was denied due process of law by a statute which prevented colored men from sitting on the jury which tried him. Mr. Justice Strong, speaking for the court, again reviewed the history of the amendments, and among other things, in speaking of the Fourteenth Amendment, said: 'It [the Fourteenth Amendment] was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the states. It not only gave citizenship and the privileges of citizenship to persons of color, but it denied to any state the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its provisions by appropriate legislation. * * * It ordains that no state shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States. * * * It ordains that no state shall deprive any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. 'What is this but declaring that the law in the states shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the states, and, in regard to the colored race, for whose protection the amendment was primarily designed that no discrimination shall be made against them by law because of their color? * * * 'The Fourteenth Amendment makes no attempt to enumerate the rights it designed to protect. It speaks in general terms, and those are as comprehensive as possible. Its language is prohibitory; but every prohibition implies the existence of rights and immunities, prominent among which is an immunity from inequality of legal protection, either for life, liberty, or property. Any state action that denies this immunity to a colored man is in conflict with the Constitution.' Again this court in Ex parte Virginia, 100 U. S. 339, 347, 25 L. Ed. 676, speaking of the Fourteenth Amendment, said: 'Whoever, by virtue of public position under a state government, deprives another of property, life, or liberty without due process of law or denies or takes away the equal protection of the laws violates the constitutional inhibition; and as he acts in the name, and for the state, and is clothed with the state's power, his act is that of the state.' In giving legislative aid to these constitutional provisions Congress enacted in 1866, chapter 31, § 1, 14 Stat. 27 (Comp. St. 1916, § 3931), that: 'All citizens of the United States shall have the same right, in every state and territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property.' And in 1870, by chapter 114, § 16, 16 Stat. 144 (Comp. St. 1916, § 3925), that: 'All persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses and exactions of every kind, and none other.' In the face of these constitutional and statutory provisions, can a white man be denied, consistently with due process of law, the right to dispose of his property to a purchaser by prohibiting the occupation of it for the sole reason that the purchaser is a person of color intending to occupy the premises as a place of residence? The statute of 1866, originally passed under sanction of the Thirteenth Amendment, 14 Stat. 27, and practically re-enacted after the adoption of the Fourteenth Amendment, 16 Stat. 144, expressly provided that all citizens of the United States in any state shall have the same right to purchase property as is enjoyed by white citizens. Colored persons are citizens of the United States and have the right to purchase property and enjoy and use the same without laws discriminating against them solely on account of color. Hall v. De Cuir, 95 U. S. 485, 508, 24 L. Ed. 547. These enactments did not deal with the social rights of men, but with those fundamental rights in property which it was intended to secure upon the same terms to Cases, 109 U. S. 3, 22, 3 Sup. Ct. 18, 27 L. Cases, 109 U. S. 3, 22, 3 Sup. Ct. 18, 27 L. Ed. 835. The Fourteenth Amendment and these statutes enacted in furtherance of its purpose operate to qualify and entitle a colored man to acquire property without state legislation discriminating against him solely because of color. The defendant in error insists that Plessy v. Ferguson, 163 U. S. 537, 16 Sup. Ct. 1138, 41 L. Ed. 256, is controlling in principle in favor of the judgment of the court below. In that case this court held that a provision of a statute of Louisiana requiring railway companies carrying passengers to provide in their coaches equal but separate accommodations for the white and colored races did not run counter to the provisions of the Fourteenth Amendment. It is to be observed that in that case there was no attempt to deprive persons of color of transportation in the coaches of the public carrier, and the express requirements were for equal though separate accommodations for the white and colored races. In Plessy v. Ferguson, classification of accommodations was permitted upon the basis of equality for both races. In the Berea College Case, 211 U. S. 45, 29 Sup. Ct. 33, 53 L. Ed. 81, a state statute was sustained in the courts of Kentucky, which, while permitting the education of white persons and negroes in different localities by the same incorporated institution, prohibited their attendance at the same place, and in this court the judgment of the Court of Appeals of Kentucky was affirmed solely upon the reserved authority of the Legislature of Kentucky to alter, amend, or repeal charters of its own corporations, and the question here involved was neither discussed nor decided. In Carey v. City of Atlanta, 143 Ga. 192, 84 S. E. 456, L. R. A. 1915D, 684, Ann. Cas. 1916E, 1151, the Supreme Court of Georgia, holding an ordinance, similar in principle to the one herein involved, to be invalid, dealt with Plessy v. Ferguson, and Berea College Case, in language so apposite that we quote a portion of it: 'In each instance the complaining person was afforded the opportunity to ride or to attend institutions of learning, or afforded the thing of whatever nature to which in the particular case he was entitled. The most that was done was to require him as a member of a class to conform to reasonable rules in regard to the separation of the races. In none of them was he denied the right to use, control, or dispose of his property, as in this case. Property of a person, whether as a member of a class or as an individual, cannot be taken without due process of law. In the recent case of McCabe v. Atchison, etc., Ry. Co., 235 U. S. 151 [35 Sup. Ct. 69, 59 L. Ed. 169], where the court had under consideration a statute which allowed railroad companies to furnish dining cars for white people and to refuse to furnish dining cars altogether for colored persons, this language was used in reference to the contentions of the Attorney General: 'This argument with respect to volume of traffic seems to us to be without merit. It makes the constitutional right depend upon the number of persons who may be discriminated against, whereas the essence of the constitutional right is that it is a personal one.' * * * 'The effect of the ordinance under consideration was not merely to regulate a business or the like, but was to destroy the right of the individual to acquire, enjoy, and dispose of his property. Being of this character it was void as being opposed to the due process clause of the Constitution.' That there exists a serious and difficult problem arising from a feeling of race hostility which the law is powerless to control, and to which it must give a measure of consideration, may be freely admitted. But its solution cannot be promoted by depriving citizens of their constitutional rights and privileges. As we have seen, this court has held laws valid which separated the races on the basis of equal accommodations in public conveyances, and courts of high authority have held enactments lawful which provide for separation in the public schools of white and colored pupils where equal privileges are given. But in view of the rights secured by the Fourteenth Amendment to the federal Constitution such legislation must have its limitations, and cannot be sustained where the exercise of authority exceeds the restraints of the Constitution. We think these limitations are exceeded in laws and ordinances of the character now before us. It is the purpose of such enactments, and, it is frankly avowed it will be their ultimate effect, to require by law, at least in residential districts, the compulsory separation of the races on account of color. Such action is said to be essential to the maintenance of the purity of the races, although it is to be noted in the ordinance under consideration that the employment of colored servants in white families is permitted, and nearby residences of colored persons not coming within the blocks, as defined in the ordinance, are not prohibited. The case presented does not deal with an attempt to prohibit the amalgamation of the races. The right which the ordinance annulled was the civil right of a white man to dispose of his property if he saw fit to do so to a person of color and of a colored person to make such disposition to a white person. It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the federal Constitution. It is said that such acquisitions by colored persons depreciate property owned in the neighborhood by white persons. But property may be acquired by undesirable white neighbors or put to disagreeable though lawful uses with like results. We think this attempt to prevent the alienation of the property in question to a person of color was not a legitimate exercise of the police power of the state, and is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law. That being the case, the ordinance cannot stand. Booth v. Illinois, 184 U. S. 425, 429, 22 Sup. Ct. 425, 46 L. Ed. 623; Otis v. Parker, 187 U. S. 606, 609, 23 Sup. Ct. 168, 47 L. Ed. 323. Reaching this conclusion it follows that the judgment of the Kentucky Court of Appeals must be reversed, and the cause remanded to that court for further proceedings not inconsistent with this opinion. Reversed.

246.US.424

With respect to a railroad within its territory, a state court has jurisdiction to decide whether the owner is under a public duty to maintain the offices and shops at a particular place, even though it were assumed, as a rule of decision, that a foreclosure and confirmed sale in a federal court conferred immunity from the obligation which that court alone could withdraw. Foreclosure and sale of a railroad in a federal court will not relieve the purchaser from a contractual or statutory duty, which rested on its predecessors under the state law, to maintain offices and shops at a particular place, if the state law holds the obligation indelible by foreclosure. The prohibition against removal of offices and shops located by contract within a county in consideration of county bond aid extends, under the Texas Office-Shops Act of 1889, to the successor by mortgage foreclosure of the contracting railroad. In its provision that offices and shops shall be at the place named in the charter, and if no certain place is there named then at such place as the company shall have contracted to locate them, etc., this statute does not intend that a valid contract for location may be evaded by a purchasing company by naming another place in its charter filed under a general law. Sembe, that a contract to maintain the offices and shops of a railroad at a particular place survives mortgage foreclosure and sale of the railroad where the purchaser succeeds to the mortgagor's franchise to be a corporation. Semble, that, generally speaking, a state legislature, dealing with a local railroad corporation, has power to fix the place of its domicile and principal offices. A corporation, organized under general laws expressly declaring that charters thereunder should be subject to provisions and limitations imposed by law, while another act prohibited changing locations of railroad offices and shops in certain cases, purchased a railroad under proceedings foreclosing a mortgage. Held, that whether or not the prohibition would have been constitutional as applied to the company's predecessors, it was a condition of its incorporation of which it could not complain. In so far as it depends upon the testimony, the verdict of a jury, upon an issue requested by the complaining party, finding that a state regulation as to location of railway offices and shops does not burden interstate commerce, will be accepted. Held, that the burden, if any, in this case, upon interstate commerce, due to a state law forbidding change of location of a railway's offices and shops, is indirect, and that the state power was not exceeded. A decree of injunction which properly will be operative until the law is changed may properly be expressed as perpetual. 174 S. W. Rep. 305, affirmed.

This is a suit brought by the defendants in error to prevent the Railroad Company, plaintiff in error, from moving its machine shops, roundhouses, and general offices from the City of Palestine and from maintaining any of them elsewhere. An injunction was issued as prayed; the judgment was affirmed by the Court of Civil Appeals, 174 S. W. 305, in accordance with intimations of the Supreme Court of Texas at an earlier stage, 106 Tex. 60, 156 S. W. 499, and an application to the latter Court for a writ of error was refused. The case is brought here upon voluminous assignments of error which may be summed up in the propositions that the State Court was without jurisdiction because of certain foreclosures in the Courts of the United States, that the judgment disregarded rights secured by the decrees of those Courts, and that it gave effect to a statute which as applied burdened interstate commerce, impaired the obligation of contracts, etc., and was contrary to Article 1, Sections 8 and 10, and to the Fourteenth Amendment of the Constitution of the United States. The facts begin with the predecessors of the plaintiffs in error. The Houston & Great Northern Railroad Company, a local road, was chartered by a special Act on October 26, 1866. About March 15, 1872, it contracted with the citizens of Palestine in the County of Anderson in consideration of the issue of bonds by the county to maintain its general offices, machine shops and round houses at that place. The International Railroad Company was chartered in like manner on August 5, 1870. In 1872 the two companies agreed to consolidate and this agreement was ratified by the stockholders of each in 1873. A special Act of April 24, 1874, authorized the consolidated company, known as the International & Great Northern Railroad Company, to issue bonds secured by mortgage and provided that all acts theretofore done in the name of either of the companies should be of the same binding effect upon the new one that they were upon the old. In 1875 the new company in consideration of the erection of houses for its employes renewed the contract of the Houston & Great Northern and at about the same time it resolved that its general offices should be removed to Palestine. We see no reason for reopening the findings below that the alleged contracts were made. The offices were removed and there they remained, subject to some immaterial interruption, until 1911. The machine shops and roundhouses are still there. Each of the two constituent companies had executed mortgages before the date of the original agreement of the Houston & Great Northern and each executed another before the contract of the consolidated company in 1875. These mortgages were all foreclosed in 1879 and the property conveyed to a corporation, still called the International & Great Northern Railroad Company, by a deed that conveyed all the franchises and chartered powers of the original roads. The foreclosure is one fact relied upon for the defence. The purchasing company in its turn executed mortgages, one of which, including, like the earlier ones that we have mentioned, the franchise to be a corporation, dated in 1881, is the source of the plaintiff in error's title, by a foreclosure in 1910-1911. Before this last foreclosure took place two statutes were enacted in Texas that are important. The first, known as the Office-Shops Act, approved March 27, 1889, c. 106, Rev. Civil Stat. 1911, art. 6423, provided that every railroad company chartered by the State or owning or operating a line within the State should permanently maintain its general offices at the place named in its charter, and if no certain place were named there, at such place as it should have contracted to locate them, otherwise at such place as it should designate; also that it should maintain its machine shops and round houses at the place where it had contracted to keep them, and that if the offices, shops or round houses were located on the line of a railroad in a county that had aided such railroad by an issue of bonds in consideration of the location being made, then such location should not be changed; 'and this shall apply as well to a railroad that may have been consolidated with another as to those which have maintained their original organization.' A violation of the Act entails forfeiture of the charter, with a penalty of $5,000 a day for every day of violation. Rev. St. art. 6425. An Act approved two days later, March 29, 1889 (Acts 21st Leg. c. 24), with provisos that no rights should be acquired inconsistent with the present Constitution, that the main track once constructed and operated should not be removed, etc., authorized purchasers of soldout railroads to form a new corporation, whereas previously the purchaser had continued the franchises of the old under the original grant. A law of September 1, 1910, (Acts 4th Called Sess. c. 4), further emphasized the change of policy by excluding a succession to the old charter unless coupled with an acceptance of certain liabilities, and providing that the charter should pass subject to the provisions and limitations imposed and to be imposed by law. Rev. St. art. 6625. The mortgage of 1881 last mentioned was foreclosed by proceedings in the Circuit Court of the United States. A decree of May 10, 1910, while reserving jurisdiction of the property, ordered a sale, which, after postponements, took place on June 13, 1911, and was confirmed the next day. On September 25, 1911, the railroad and franchises were finally discharged from the possession and control of the receiver and the Court. Before that date the plaintiff in error was incorporated under the Act of 1889 and general laws and took the conveyances under the foreclosure decree. Within the time allowed it had filed in Court a repudiation of any agreement on the part of any of its predecessors to maintain their offices and shops at Palestine, and later gave notice to that effect to officials of Anderson County and Palestine. The articles of incorporation fixed the place for the general offices as Houston. The railway company denies the jurisdiction of the State Court and sets up that the court of the last foreclosure is the only proper forum. But a decree of foreclosure does not render the purchaser and property foreclosed sacrosanct. The Circuit Court had finished the case and had given up possession and control before this suit was brought. Shields v. Coleman, 157 U. S. 168, 178, 179, 15 Sup. Ct. 570, 39 L. Ed. 660; Wabash R. R. Co. v. Adelbert College, 208 U. S. 38, 55, 28 Sup. Ct. 182, 52 L. Ed. 379. Even if it were true that the foreclosure sale and order carried an immunity from the present demand that the railway was entitled to set up, in the absence of action on the part of the Court of the United States, it would not take away the power of the State Court to decide as to the existence of an alleged public duty on the part of a railroad within the territory where th court sat. Ricaud v. American Metal Co. (March 11, 1918) 246 U. S. 304, 38 Sup. Ct. 312, 62 L. Ed. ——. But the foreclosures did not have the supposed effect. They no more removed all human restrictions than they excluded the authority of ordinary courts. Suppose that a special act incorporating the mortgagor had provided in terms evidently intended to reach beyond foreclosure that the general offices were to remain forever at Palestine, it hardly would be argued, and certainly would not be argued here or in Texas with success, that the requirement could be touched by a decree. But if the law made that requirement, it hardly matters whether the restriction was imposed by charter or otherwise or whether the remote reason for it was a contract or a general notion of public policy. The State Courts hold that when the law on any ground fixes the place of the offices and shops the obligation is indelible by foreclosure. We see no reason why their decision should not prevail. It is contended that the Office-Shops Act of 1889 does not touch the plaintiff in error by its term and that if it be construed to do so it is unconstitutional. On the construction of the Act it seems to us that there can be no doubt. It is true that the provision requiring the general offices to be maintained at the place where the railroad had contracted to keep them is conditioned on no place being named in the charter, but of course this does not mean that articles framed under a general law can get rid of contracts that otherwise would bind, and in our opinion it is equally plain that no distinction was intended between the contract by the present road and one by its predecessor, if the office and shops 'are located on the line of a railroad in a county which has aided said railroad by an issue of bonds in consideration of such location being made.' 'Then,' the statute says, 'said location shall not be changed.' The construction of the Act by the State Court is beyond criticism upon this point. It is said that the Act so construed would infringe the constitutional rights of the parties to the mortgage of 1881, which the plaintiff in error took by foreclosure. But it will be remembered that the mortgagor under the law then in force merely had succeeded to the original contractors, freed from their unsecured debts, no doubt, but, it well might be held, not freed from the obligation in question. Also it was found by the Courts below that the sale under which the mortgagor took in 1879 was not a bona fide sale, and so was not a sale that put the purchaser in a position other than that of mortgagor. Apart from these considerations we should be slow to say that it was not within the power of a state legislature dealing with a corporation of the state to fix the place of its domicile and principal offices, in the absence of other facts than those appearing in this case. But furthermore when the Office-Shops Act was on the statute book the plaintiff in error took out a charter under general laws that expressly subjected it to the limitations imposed by law. It is said that this does not make the plaintiff in error adopt an otherwise unconstitutional statute. But even if, contrary to what we have intimated, the Act could not otherwise have affected those particular corporations, it was a law upon the statute books and was far from a mere nullity, and if it was made a condition of incorporation that this restriction should be accepted, the plaintiff in error cannot complain. Interstate Consolidated Street Ry. Co. v. Massachusetts, 207 U. S. 79, 28 Sup. Ct. 26, 52 L. Ed. 111, 12 Ann. Cas. 555. We agree with the State Courts that the condition was imposed. The acceptance of the charter by the plaintiff in error disposed of every constitutional objection but one. It is said that the restriction imposes a burden upon commerce among the States, since the road concerned has expanded and now is largely engaged in such commerce. The jury found that it imposed no such burden, upon an issue submitted to th m in accordance with the desire of the plaintiff in error, although not in the form that it desired. So far as the question depended upon the testimony adduced the verdict must be accepted, and although no doubt there might be cases in which this Court would pronounce for itself, irrespective of testimony, whether a burden was imposed, we are not prepared to say that in this instance the State has transcended its powers. The burden if any is indirect. Some complaint is made of the form of the judgment, as purporting to be perpetual. But the word perpetual adds nothing to a requirement that the office and shops should be maintained in Palestine. The requirement is perpetual until the law is changed. When and how it may be changed is not before us now. Other objections are urged and other details are adverted to in the very lengthy printed arguments, besides those with which we have dealt, but we deem it unnecessary to go farther. Upon the whole case we are of opinion that the judgment below should be affirmed. Judgment affirmed.

243.US.166

A city granted to a water company a franchise to construct and operate water works, using the streets. The ordinance defined the grant as made "for the duration of the said Company " (the grantee), but elsewhere limited the term expressly to twenty-five years from the passage of the ordinance; which also contained a contract for the same period providing that, if, at the city's request, the company should extend its pipes "during the said term of twenty-five years," the city would rent hydrants thereon "for the unexpired term of said franchise." Some years later, the city granted a similar, substitute franchise to a second company, successor to the first with the city's consent, by an ordinance defining the franchise term as "for and during the existence" of the second company, and recognizing the latter as the successor of the first company in respect of the contract for hydrant rental "as fully as if such existing contract had been originally made" with the second company "without the inter-_ vention" of the first. By the law of its creation, the life of the second company was twenty-five years primarily, with the right (reserved in its articles) to prolong the term by twenty-five year extensions. Held: (1) That the life of the second franchise was not limited to twenty-five years, but was intended to endure while the corporate life of the grantee endured by extension beyond that period. (2) The fact that the first franchise was expressly limited to twentyfive years while the second was granted for "the existence of the corporation" was evidence confirming this construction. (3) Respecting the contract concerning hydrants, the second company became successor of the first only for the unexpired term of that contract. (4) That later ordinances of the city requesting pipe line extensions and declaring that the city thereby rented the hydrants along such extensions "for the unexpired term of the franchises of the said Water Company," and compliance by the second company with the requests so made upon it, did not import a recognition by the parties that the franchise of that company was for a definite, known term not to be enlarged by extension of its corporate existence, but were referable only to the hydrant contract and its unexpired term-a conclusion which was corroborated by the action of the parties in ceasing to collect and pay rent for such hydrants When that term expired. The question being whether a franchise granted by a city was limited to twenty-five years, the period for which: the corporate grantee was primarily organized, or was meant to accompany an extension of the grantee's corporate life, the fact that the grantee, in former litigation in which that question was neither material nor adjudicated, the primary period having then some years to run, described the franchise as a franchise for twenty-five years, affords no basis for an estoppel by conduct or by judgment; and the more clearly so where the grantee, in the same litigation, also described the franchise as granted for the whole period of its corporate existence. While in the computation of time beginning "from and after" a day named it is usual to exclude that day and begin with the next, this is not done where it will obviously defeat the purpose of those whose words are being construed or applied.

This is a suit to enjoin the city of Owensboro, in the state of Kentucky, from obstructing and preventing the maintenance and operation of an existing waterworks plant in that city. The plaintiff relies upon a franchise from the city which the latter insists has expired. In the district court the franchise was held to be still in force, and the city was enjoined from giving effect to an ordinance and a resolution impairing the same. By an ordinance of September 10, 1878, the city granted to the Owensboro Water Company, its successors and assigns, the privilege of constructing and operating waterworks within the city, and of using its public highways for that purpose. In its 1st section the ordinance described this grant as made 'for the duration of the said company,' and in another section expressly limited it to 'twenty-five years from the passage of this ordinance.' Other provisions required the water company to lay and maintain pipe lines in certain streets with a fire hydrant at each street intersection, and obligated the city to rent and pay for the hydrants 'for the term of twenty-five years from the passage of this ordinance.' Availing itself of the privilege so granted the water company constructed a waterworks plant in the city, and operated the same until June 3, 1889, when it sold the plant to the Owensboro Water Works Company, the plaintiff in this suit. This company is a Kentucky corporation whose original articles of association stated that its existence was to begin on June 1, 1889, and terminate at the end of twenty-five years, 'subject to such extensions of its term of existence as by law provided.' On June 3, 1889, shortly before the plaintiff's purchase, the city adopted an ordinance containing the following provision, among others: 'Sec. 1. That in consideration of the purchase by the Owensboro Water Works Company, of Owensboro, Kentucky, of the waterworks of the Owensboro Water Company, the franchise and license are hereby granted to the Owensboro Water Works Company, of Owensboro, Kentucky, and its successors and assigns, for and during the existence of the said corporation, to maintain, complete, and operate waterworks in the city of Owensboro for supplying the city of Owensboro and the inhabitants of said city and its vicinity with water for public and private purposes, and to use within the present and future limits of the city of Owensboro, the streets, alleys and other public highways thereof for the purpose of laying, repairing and taking up mains, service pipes, hydrants, and other apparatus for the supply of water.' By the 2d section the city accepted the plaintiff 'as the successor' of the other company in respect of 'the contract for hydrant rental' then existing between the city and the other company 'as fully as if such existing contract had been originally made' by the city with the plaintiff 'without the intervention' of the other company; and by the 3d section the city gave its consent to 'the consummation of the said purchase of the said waterworks.' The plaintiff accepted the provisions of this ordinance, relied upon them in consummating the purchase, and ever since has maintained and operated the waterworks and used the public highways of the city in that connection. On May 6, 1914, the plaintiff's articles of association were amended, conformably to the state law (Ky. Gen. Stat. 1888, chap. 56, § 7; Ky. Stat. 1903, §§ 540, 559, 574), by adding a provision the declared purpose of which was to extend the plaintiff's corporate existence for the period of twenty-five years. Whether the plaintiff now has a franchise from the city turns chiefly upon the construction and effect of the Ordinance of June 3, 1889. By it the city then said that 'the franchise and license' to maintain, complete, and operate waterworks in the city and to use its public highways for that purpose 'are hereby granted to the Owensboro Water Works Company, of Owensboro, Kentucky, and to its successors and assigns, for and during the existence of the said corporation.' Now the city claims, first, that by the ordinance it merely assented to the purchase by the plaintiff of the rights of the other company under the Ordinance of 1878; second, that if a franchise was granted to the plaintiff, it was only for the life of the other company; and, third, that even if a franchise was granted to the plaintiff for the period of its own existence, it was not to endure beyond the primary term of twenty-five years, named in the plaintiff's articles of association. But none of these claims has any support in the ordinance. Its terms are direct and its meaning plain. In apt words its 1st section not only grants a franchise to the plaintiff, but makes the life of the franchise coextensive with the plaintiff's existence; and we find nothing in the ordinance which suggests that the words fixing the duration of the franchise are to be taken as comprehending anything less than the full corporate existence of the plaintiff. The right to extend its existence beyond the primary term was given by statute and expressly reserved in the articles of association, and so it is reasonable to believe that had there been a purpose to limit the franchise to that term it would have been plainly expressed, as was done in the ordinance of 1878. The reasonable implication from the inclusion of such a limitation in the earlier ordinance and its omission from the later one is that the franchise granted by the latter was not to be thus limited. Of the suggestion that, under this view, the franchise may be made perpetual by repeated extensions of the plaintiff's corporate life, it is enough to say that we are here concerned with but a single extension already effected. The statute permitting such extensions may not be in force when the present twenty-five-year period expires, and, if it be in force, nothing may be done under it. Because the primary term—the first twenty-five years—expired May 31, 1914, and the amendment to the articles of association stated that the extension for another twenty-five years would begin 'from and after' June 1, 1914, the city insists there was a hiatus of one day between the two periods and that in consequence the extension never became effective. We are not impressed with this contention. While in the computation of time that begins to run 'from and after' a day named it is usual to exclude that day and begin with the next (Sheets v. Selden, 2 Wall. 177, 190, 17 L. ed. 822, 826), this is not done where it will obviously defeat the purpose of those whose words are being construed or applied. The purpose of the amendment was to extend or prolong the plaintiff's corporate existence for another twenty-five years. It was adopted almost a month in advance of the expiration of the first twenty-five years, and, notwithstanding the use of the words 'from and after,' it shows very plainly that the second period was to begin where the first ended. Of course those words were not happily chosen, but as the amendment otherwise makes it certain that the extension was to be effective on and after June 1, 1914, we think the amendment accomplished its purpose and that there was no hiatus. By the Ordinance of 1878, as before shown, the other company and the city entered into a contract respecting fire hydrants which was to be in force for twenty-five years from the date of the ordinance. One provision of that contract was to the effect that, if the company should make any extensions of its pipe lines at the city's request 'during the said term of twenty-five years,' the city would rent and pay for one hydrant at each street intersection along such extensions 'for the unexpired term of said franchise.' By a special provision in the ordinance of 1889, as we have seen, the plaintiff succeeded to the rights and duties of the other company under that contract as if it 'had been originally made' by the city with the plaintiff; and this meant that the succession was only for the unexpired term of the contract. Acting under the contract, the city, from 1890 to 1895, adopted seven ordinances wherein it requested that particular extensions of the pipe lines be made by the plaintiff, and declared that it (the city) thereby rented the hydrants along such extensions 'for the unexpired term of the franchise of the said Water Company.' The plaintiff accepted these ordinances and complied with the requests made in them. The city now claims that in what was thus done both parties plainly recognized that the franchise granted to the plaintiff was for a definite and known term of years, and was not to be affected by any extension of the plaintiff's corporate existence. But we think this claim disregards what was intended by the word 'franchise' in the seven ordinances. They not only related to the same subject as did the contract of 1878, which was the maintenance and renting of fire hydrants, but they closely followed its words. That contract was made for a definite term, twenty-five years, and twelve of these had expired when the seven ordinances were adopted. In adopting and accepting them the parties were not making a new hydrant contract, but acting under the one already in existence. It and the plaintiff's franchise were not coterminous and should not be confused. The contract covered the old hydrants, of which there were many, as well as the new ones, and was to expire as to all at the same time, that is, on September 10, 1903, twenty-five years after the contract was made. That the city so understood—indeed, that both parties so understood—is affirmatively and clearly alleged in the city's answer, from which we excerpt the following: 'Defendant city says that after the passage of said [seven] ordinances the complainant Water Company did lay the mains required therein and attach the fire hydrants as provided in said ordinance and the defendant city paid it rentals in pursuance to said contract until September 10, 1903, at which time the complainant ceased to collect and the city ceased to pay rentals for said hydrants as provided in said ordinance and contracts, and said ordinances and contracts were construed to and did expire on September 10, 1903, and since that date the city has not paid to the complainant any hydrant rental under any of said rental contracts, or at all.' The plaintiff's franchise, as before shown, was granted June 3, 1889, and, of course, did not expire September 10, 1903. What did expire on that day was the contract made September 10, 1878, whereby the city agreed to rent and pay for the hydrants for the term of twenty-five years from that date. It is plain, therefore, that what was intended by the word 'franchise' in the seven ordinances was that contract. There was nothing else to which it reasonably could refer. The city further contends that the plaintiff is estopped from claiming a franchise extending beyond May 31, 1914, because in 1903 and 1904, in two suits against the city, it described its franchise as granted for a term of twenty-five years, beginning June 1, 1889. But in neither suit was it material whether the life of the franchise was strictly limited to that period or was subject to prolongation by an extension of the plaintiff's corporate existence; and it is not claimed that this question was adjudicated in either suit. At that time nine or ten years of the primary period still remained, and there was as yet no occasion to elect or determine whether the privilege of effecting an extension would be exercised. Besides, in both suits the franchise was also described by the plaintiff as granted for 'the whole period of its corporate existence.' Thus no basis is shown for an estoppel by conduct or by judgment. Other objections are made to the decree, but they are of less merit and do not require special mention. Decree affirmed. This case presents for decision the single but very important question whether the city of Owensboro, Kentucky, by ordinance passed on June 3, 1889, granted to the Owensboro Water Works Company a franchise renewable indefinitely, and therefore in effect perpetual, or only a franchise for twenty-five years, 'to maintain, complete, and operate' waterworks in that city. A perpetual right to the use of the streets of a city is such a serious burden upon a community that, though very reluctant to do so, I am impelled by an imperative sense of duty to place on record my reasons for concluding that the construction given by a majority of the court to the grant involved in this case is a mistaken one which can be reached only by violating two rules of construction which this court has repeatedly declared to express 'sound doctrine which should be vigilantly observed and enforced.' The facts essential to an understanding and to a determination of the claim made in the record are as follows: On the 9th day of September, 1878, a corporation named the 'Owensboro Water Company' was incorporated under the laws of the state of Kentucky, and, on the next day, the city of Owensboro granted to that corporation the right and franchise to construct and operate in that city a waterworks plant, using the streets and alleys in the customary manner. Section 1 of this ordinance grants to the Water Company the right to construct and operate waterworks within the city 'for the duration of the said company.' After many details as to construction, service, and rentals of hydrants by the city, § 13 provides: 'The rights, privileges, and franchises hereby granted to and vested in said company shall remain in force and effect for twenty-five years from the passage of this ordinance.' Thus it is too clear for discussion that the expression 'for the duration of the said company' in § 1 of this ordinance of September 10, 1878, was deemed, both by the city granting it and by the company accepting it, as meaning a term of twenty-five years. The Water Company constructed a waterworks plant and operated it until the year 1889, when, for the purpose of making larger capital available, a new corporation, bearing the name 'Owensboro Water Works Company,' was organized, with a charter which contained in paragraph 6 this provision: 'The time of commencement of the said corporation is the first day of June, in the year one thousand eight hundred and eighty-nine, and it shall terminate twenty-five years thereafter, subject to such extensions of its term of existence as by law provided.' On June 3d, 1889, the council of the city of Owensboro passed an ordinance, which was accepted by the new corporation, which, after reciting that the new corporation desired to purchase the waterworks of the old one, together with its existing contracts for supplying the city and its inhabitants with water; that the new company desired a grant of a franchise and license 'to maintain, complete, and operate waterworks in the city,' and that the city should accept the new company as the successor of the old to the contracts for hydrant rentals, proceeds to ordain: Section 1. That the franchise and license to maintain, complete, and operate waterworks in the city of Owensboro 'are hereby granted to the Owensboro Water Works Company, and to its successors and assigns for and during the existence of said corporation;' Section 2. That the new company shall be accepted by the city 'as the successor to the contract for hydrant rental now existing between the city of Owensboro and the Owensboro Water Company as fully as if such existing contracts had been originally made by the city of Owensboro with the said Owensboro Water Works Company, without the intervention of the said Owensboro Water Company.' The Kentucky General Statutes of 1883, chap. 56, § 7, p. 548, under which the Water Works Company was organized in 1889, contained this provision: 'Corporations for the construction of any work of internal improvement may be formed to endure for fifty years; those formed for other purposes shall not exceed twenty-five years in duration; but in either case they may be renewed from time to time for periods not greater than was at first permissible if three fourths of the votes cast at any regular election held for that purpose shall be in favor of such renewal.' While the plaintiff in error disputes it, we conclude that it is clear that, by appropriate action taken on the 6th of May, 1914, the Water Works Company amended its articles of incorporation by amending article 6 thereof (hereinbefore quoted) so that, as amended, this section became: 'The time of the commencement of said corporation is the first day of June, 1889, and it shall terminate twenty-five years thereafter, subject to such extension of its terms as by law provided, and same is now, by these amended articles of incorporation, extended for the period of twenty-five years from and after the first day of June, 1914.' Since confessedly the Water Works Company is not a corporation organized for the construction of 'any work of internal improvement,' if we read together the charter of the Water Company dated May 30, 1889, the ordinance of the city of Owensboro dated June 3, 1889, and the statute of Kentucky, which we have quoted, limiting the duration of corporations to twenty-five years, we see that the question for decision is narrowed to this, viz.: Does the grant to the Water Works Company of the franchise and license 'to maintain, complete, and operate' waterworks 'for and during the existence of said corporation' confer on the company a franchise in effect perpetual to use the streets of the city for waterworks purposes, or is it limited to twenty-five years? The limitation of the grant to the twenty-five years 'duration' of the corporation would be beyond question were it not for the provision of the charter that the termination of the life of the company after twenty-five years shall be subject to such extensions as are provided for by law, and for the provision, of the statute quoted 'that they (such corporations) may be renewed from time to time for periods not greater than was at first permissible,'—in this case for an additional twenty-five years. The conclusion of the majority of the court is that this authority given to the stockholders to renew 'the duration' of the corporation (a discretionary power which is found in the charter, not in the grant, and which might or might not be exercised) expanded and extended the expression of the grant 'during the existence of the corporation' so as to make it as if it read, 'during the existence of the said cor- poration,' and also for such 'renewals' of such existence as the stockholders of the company may, by appropriate action, favor some time in the future one. The two rules for the construction of such grants, which have been referred to, have been firmly established by decisions of many courts, but no court has been more definite and resolute than this court has been in the emphasis with which it has announced and applied them. These rules are: (1) As announced by this court most clearly, and with full consideration of the authorities in Blair v. Chicago, 201 U. S. 400-463, 50 L. ed. 801-827, 26 Sup. Ct. Rep. 427: 'It is a firmly established rule . . . that one who asserts private rights in public property under grants of the character of those under consideration [city ordinances] must, if he would extablish them, come prepared to show that they have been conferred in plain terms, for nothing passes by the grant except it be clearly stated or necessarily implied.' And the court gives as the sound reason for this rule that 'it is matter of common knowledge that grants of this character are usually prepared by those interested in them, and submitted to the legislature with a view to obtain from such bodies the most liberal grant of privileges which they are willing to give. This is one among many reasons why they are to be strictly construed.' And from Cooley on Constitutional Limitations is quoted with approval this statement: 'The just presumption in every such case is that the state has granted in express terms all that it designed to grant at all. . . . This is sound doctrine, and should be vigilantly observed and enforced.' Continuing to give to the rule the emphasis which it so richly deserves, the opinion continues and quotes from earlier decisions of this court, declaring that 'any ambiguity in the terms of the grant must operate against the corporation and in favor of the public, and the corporation can claim nothing that is not clearly given by the law. . . . The principle is this, that all rights which are asserted against the state must be clearly defined, and not raised by inference or presumption.' The discussion concludes with the statement, quoted from Slidell v. Grandjean, 111 U. S. 412, 28 L. ed. 321, 4 Sup. Ct. Rep. 475, that it is a wise doctrine because 'it serves to defeat any purpose concealed by the skilful use of terms, to accomplish something not apparent on the face of the act, and thus sanctions only open dealing with legislative bodies.' (2) The second rule to which we have referred finds clear expression in Chicago v. Sheldon, 9 Wall. 50, 19 L. ed. 594, as follows: 'In cases where the language used by the parties to the contract is indefinite or ambiguous, and hence of doubtful construction, the practical interpretation by the parties themselves is entitled to great, if not controlling, influence. The interest of each generally leads him to a construction most favorable to himself, and when the difference has become serious, and beyond amicable adjustment, it can be settled only by the arbitrament of the law. But, in an executory contract, and where its execution necessarily involves a practical construction, if the minds of both parties concur, there can be no great danger in the adoption of it by the court as the true one.' This rule was approved in terms in Topliff v. Topliff, 122 U. S. 121, 30 L. ed. 1110, 7 Sup. Ct. Rep. 1057, and it has been repeatedly announced as the settled doctrine of this court. Applying these rules in the reverse order of their statement I shall now give my reasons for concluding that the interpretation by the parties to it of the grant under consideration limits it to a life of twenty-five years. The Ordinance of 1878, in the part of it assumed by the Water Works Company by its acceptance of the Ordinance of 1889, provided that 'if entensions of pipe shall be made by said company during the said term of twenty-five years at the instance or request of said city,' the city should be bound to rent and pay $50 a year for one hydrant at each street intersection. Under this provision, beginning on October 6, 1890 (a little more than a year after the grant was made), and continuing, certainly as the record shows, until September 16, 1895, the city, by ordinance, made seven distinct demands upon the Water Works Company to lay additional pipes in the streets, and in each ordinance provided: 'The city of Owensboro hereby rents of the said Water Company the above named hydrants for the unexpired term of the franchises of the said Water Company,' and promises to pay, etc. Here is a plain declaration, seven times repeated, by the city, the first made, as we have stated, very shortly after the grant was made, that the city understood that the grant was not an unlimited or perpetual one, for it promises to pay only 'for the unexpired term of the franchises of the said Water Company.' By the acceptance of each one of these seven ordinances, the Water Company just as plainly assented to this construction of the grant. This is highly persuasive against the Water Company because such construction was so distinctly against its interest. The record shows that these ordinances bear dates as follows: (1) September 6, 1890; (2) February 2d, 1891; (3) November 7, 1892; (4) December 5, 1892; (5) October 1st, 1894; (6) May 7, 1894; and (7) September 16, 1895. The most persuasive comment I think that can be made upon this construction of this grant by both of the parties to it is contained in the last sentence of the quotation we made from Chicago v. Sheldon, supra: 'But in an executory contract, and where its execution necessarily involves a practical construction, if the minds of both parties concur, there can be no great danger in the adoption of it by the court as the true one.' But much more is to be found in the record as to what the parties—particularly as to what the Water Works Company—thought was the term of this grant. On the 21st day of September, 1903, the Water Works Company instituted a suit in the circuit court of the United States for the eastern district of Kentucky, in as effort to enjoin the city from issuing bonds and spending money for the purpose of constructing a municipal water plant, and in the bill filed in the case it alleges that it is a corporation, with power conferred upon it to supply the defendant city and its inhabitants with water 'for the fixed period of twenty-five years from the date of its incorporation;' it alleges that the grant to it was 'extended during the period of its corporate existence, a period of twenty-five years from the 1st of June, 1889;' and that by the contract created by the ordinance of June 3d, 1889, as well as by the contracts existing between the city and the earlier company, the Water Works Company 'acquired and now has conferred upon it and vested in it the sole and exclusive right, franchise, and privilege during the period of twenty-five years from and after June 1st, 1889, to maintain, complete, and operate waterworks in the city of Owensboro,' etc. Again it alleges in this bill that the said contract conferred upon it the exclusive privilege of furnishing water through the hydrants to the said city for twenty-five years from the 1st of June, 1889; that it has in all things complied with the requirements of the Ordinance of 1889, 'and that it is ready, willing, and able to continue to carry out its said contract and to continue to perform and do all the things of it required therein until the expiration of the said contract on June 1st, 1914.' Yet again it alleges that the city did by the ordinance aforesaid (of 1889) make and enter into a valid and binding contract with this complainant, wherein and whereby an obligation was created on the part of this complaint to lay pipes, conduits, and hydrants in and along the streets and to furnish for the period of twenty-five years from the 1st of June, 1889 solemnly avers that the purpose of the city to establish a municipal waterworks would result in a violation of this contract, which is within the protection of § 10, article 1 of the Constitution of the United States, which prohibits the passage of any 'law impairing the obligation of contracts.' This elaborate bill, filed by the Water Company, concludes with the prayer for an injunction, restraining the city 'from constructing, equipping, operating, or maintaining a system of waterworks in said city at any time until after the 1st day of June, 1914.' This bill is sworn to by the president of the Water Works Company and significantly enough is signed by the same counsel who sign the bill in the pending case. But the Water Company, continuing of the same mind as to the meaning of the grant under consideration, in a petition filed in the circuit court of Daviess county, Kentucky, almost a year later, on the 27th day of May, 1904, in a case in which the company was seeking to collect rentals for hydrants, again alleged that by the grant of 1889 the franchise of the company was 'extended during the whole period of its corporate existence, a period of twenty-five years from and after the 1st of June, 1889,' and that this same ordinance 'conferred upon and vested in it the sole and exclusive right, franchise, and privilege during the period of twenty-five years from and after June 1st, 1889, to maintain, complete, and operate waterworks in the city of Owensboro,' etc. In this petition plaintiff specifically sets up the ordinances to which we have referred, calling upon the Water Company to construct extensions, and which were accepted by the company, and adds two others of the same purport, one dated May 15, 1899, and one July 25, 1900; alleges that in each of these the city requested the company to extend the lines and place hydrants 'for the unexpired term of the franchise of this petition sixty days from the passage of said ordinances it filed its acceptance of them with the clerk of the city. It is difficult to imagine an interpretation of a contract by the parties to it more specific or controlling than is to be found in the declarations in these court proceedings, made deliberately and under the advice of counsel. In the presence of this record I cannot doubt that it was understood and intended in the beginning by the untechnical men of affairs who composed the city council and by the company that this grant was a limited one, extending for not to exceed twenty-five years from June 1st, 1889, and that this conviction continued in the minds of all the parties concerned in it, finding frequent expression in the conduct of business between them for full fifteen years, certainly until 1904, when the company is found claiming in the courts that the grant expired on June 1, 1914; and therefore I cannot assent to the conclusion that it is in effect a perpetual grant of the right to use the streets of the city, convinced, as I am, that such result cannot be reached without doing violence to the rule referred to, so firmly established by this court, which has been penetratingly condensed into the expression, 'Show me what men have done under a contract and I will tell you what it means.' And, I may add, without running also counter to the decision of this court in Tennessee v. Whitworth, 117 U. S. 129, 29 L. ed. 830, 6 Sup. Ct. Rep. 645, in which it is declared that, in construing contracts springing from statutes, the words employed are, if possible, to be given the same meaning they had in the minds of the parties to the contract when the statute was enacted. But, turning now from the interpretation placed upon this ordinance by the parties to it, and confining our attention strictly to the language used in making the grant, let us ask ourselves whether it can reasonably be said, upon the facts presented by this record, that a franchise in effect perpetual was granted in the streets of the city 'in plain terms,' 'in express terms,' without 'ambiguity,' as is required by the first of the rules for the construction of such grants, which we have seen is so fully approved by this court. If the pertinent parts of the grant, of the charter of the company, and of the Kentucky statute, be written together, we shall have this paragraph: The city of Owensboro grants to the company the right to maintain and operate a waterworks plant during the existence of that corporation, which existence is declared in its charter to commence on June 1st, 1889, and to terminate twenty-five years thereafter, subject to such extensions as the law provides, and is also limited by the state statute, under which it was created, to a duration of twenty-five years, with the privilege of renewal for a like period if a three-quarters vote of its stockholders 'shall be in favor of such renewal.' I cannot doubt that others than skilled lawyers (and we cannot assume that all of the members of the city council were skilled lawyers), reading such a paragraph as this, would understand that the existence of the life of the Water Works Company, and so of the grant, was for the declared twenty-five year period between the 'commencement of the life' of the corporation and the time when it must 'terminate.' To give it any other meaning is to magnify the subordinate provision for a possible extension of the life of the corporation so as to make that control the definite, specific, clearly expressed limitation of the charter. But specific should always control general provisions in a contract where they conflict,—definite and clearly expressed limitations should dominate indefinite and discretionary privileges. To declare this grant perpetually renewable is to make its duration dependent upon the discretion of the grantee corporation, to be exercised twenty-five years after the grant was made, and it is not difficult to conceive of circumstances under which the required three fourths of the stockholders of the company would not favor an extension of its corporate life,—if, for instance, its business were a failing one because of competition with a city-owned plant, or if the stockholders differed in opinion as to the wisdom of making a possible sale of its property. This is a result which the court should accept only under sheer coercion—I can designate it by no milder term—of the 'plain,' 'express,' and 'unambiguous' provision in the grant, and very certainly it is a result which should not be derived from ingenious construction of a narrow and optional clause in the charter of the grantee (not in the grant), which was probably inserted for the purpose of providing for the contingency of a new grant to the company, to be made at the expiration of the one for twenty-five years, rather than in an attempt to automatically make an extension of that grant. When to this it is added that the provision for extending the life of the corporation is not to be found anywhere in the ordinance making the grant, which the councilmen had before them, but only in the charter of the corporation and in the statute of the state, which they probably never saw, I not only cannot bring myself to assent to the conclusion that, resolving, as we must, every doubt in favor of the public, a franchise in effect perpetual in the streets of the city was given to the Water Works company 'in plain,' 'in express,' and in 'unambiguous' terms, but, on the contrary, I am very clear that the language used in making this grant limits it, as we have seen that all of the parties thought that it limited it, to the term of twenty-five years. This conclusion has been arrived at without the application of narrow distinctions to the words used in the charter of the Water Company and in the statute of Kentucky. But sufficient to turn the case, if it be thought a close one, might very well be found in significant distinctions with respect to the words used in the provision of the charter of the company, on which the opinion of the majority of the court turns, viz.: that the twenty-five-year limitation so clearly expressed is 'subject to such extensions of its terms of existence as by law provided.' These distinctions are, first, that the state law did not provide for 'extensions' of the corporate existence. The most that can be said of the law is that it provided a method by which the stockholders of the company—not the law—might, in their discretion, 'renew' the charter for an additional term after the expiration of the twenty-five-year period which the law provided for. The second distinction is that the authority to 'renew' the corporate existence of the company, given by the statute, becomes in the charter, as written by the company, 'extensions . . . by law provided,' which gives to the corporation the advantage which many courts and writers have found in the distinction between the right of 'extension' and the right of 'renewal' of a contract, the latter indicating an intention to resort to a new grant for the future, while the former contemplates 'a prolongation, a lengthening out,' of a grant previously made. This distinction is perhaps too subtle to serve the ends of substantial justice in practical affairs, but apparently the authors of the charter which we are considering thought it a refinement which it was worth their while to lay hold upon. Whalen v. Manley, 68 W. Va. 328, 69 S. E. 843; Leavitt v. Maykel, 203 Mass. 506, 133 Am. St. Rep. 323, 89 N. E. 1056, and authorities cited. The district court finds its conclusive authority for holding the grant to be, in effect, a perpetual one in Owensboro v. Cumberland Teleph. & Teleg. Co. 230 U. S. 58, 57 L. ed. 1389, 33 Sup. Ct. Rep. 988. An inspection of the ordinance there considered shows that there was no attempt whatever in terms to limit the duration of the grant; that no reference was made in the ordinance to the life of the corporation to which the grant was made, and that by express terms the grant is declared not to be exclusive, and to be subject to alteration and amendment. While it is true that the members of this court differed as to the effect of the provision for alteration and amendment of the ordinance, yet the effect of these distinctions when grouped together is such, it seems to me, as to render the decision in that case wholly inapplicable to an ordinance such as we are considering here. It may be that the settled conviction which I have that no legislator, congressman, or councilman would knowingly consent to grant perpetual rights in public streets to a private corporation has so darkened my understanding that I cannot properly appreciate the point of view of my associates and the reasons advanced in support of it; but, however this may be, the reasons stated in this opinion convince me that the grant under discussion was not in effect a perpetual grant, but was for the period of twenty-five years, which expired on the 1st day of June, 1914. Mr. Justice Brandeis concurs in this opinion. Mr. Justice Day concurs in this dissent, upon the ground that, applying the wellsettled rule that grants of the character here in question are to be given strict construction, and doubts as to their meaning resolved in favor of the public, and ambiguities are to be resolved in like manner, it is by no means clear that the city intended to grant to the Water Company a franchise for its then corporate life of twenty-five years and for subsequent renewals thereof, as the stockholders might determine; and he is of the opinion that the franchise expired at the end of the twenty-five-year period for which its charter provided when the grant was made.

242.US.339

The distinction made in the law of. California '(Laws 1913, c. 354; as amended by Laws 1915, c. 105), passed for the regulation of the

Appeal from an order denying an interlocutory injunction, three judges sitting The court took jurisdiction of the action citing Raich v. Truax, 219 Fed. 273, 283, but denied the injunction on the ground that the averments of the complaint did not justify it. Complainant is a drugless practitioner, he avers (we state the facts averred narratively), and has practised his profession in the city and county of Los Angeles for the last seven years, and is dependent upon it for making a living. He does not employ either medicine, drugs, or surgery in his practice, nor is there anything harmful in it to the individual or dangerous to society; but he does employ in practice faith, hope, and the processes of mental suggestion and mental adaptation. Under a statute of the state that went into effect August 10, 1913, amended in 1915, a board of medical examiners was created which was empowered to prescribe a course of study and examination for those practising medicine (using this word in a broad sense for convenience), and to issue certificates of qualifications and licenses. Three forms of certificates were required to be issued: First, a certificate authorizing the holder thereof to use drugs, or what are known as medicinal preparations, in or upon human beings, and to perform surgical operations, which certificate shall be designated, 'physician and surgeon certificate.' Second, a certificate authorizing an opposite treatment to that which the first certificate authorized (we are using general description), which certificate shall be designated, 'drugless practitioner certificate.' Third, a certificate authorizing the holder to practise chiropody. And the statute also provides for the issuance of what it designates as a 'reciprocity certificate.' Any of these certificates, on being recorded in the office of the county clerk, as provided in the act, shall constitute the holder thereof a duly licensed practitioner in accordance with the provisions of his certificate. Applicants must file with the board testimonials of good moral character and diplomas of a school or schools, and, in addition, each applicant for a 'physician and surgeon certificate' must show that he has attended four courses of study, each to have been not less than thirty-two weeks' duration, with some other additions; and each applicant for a 'drugless practitioner certificate' must show that he has attended two courses of study, each of such courses to have been not less than thirty-two weeks' duration, but not necessarily pursued continuously or consecutively, and at least ten months shall have intervened between the beginning of any course and the beginning of the preceding course; and the course in chiropody is to be of not less than thirty-nine weeks' duration, consisting of not less than 664 hours. There is a provision that, in lieu of a diploma or diplomas and preliminary requirements in the other courses, if the applicant can show to the board that he has taken the courses required by the statute in a school or schools approved by the board, totaling not less than sixty-four weeks' study of not less than 2,000 hours for a 'drugless practitioner certificate,' or 128 weeks' study of not less than 4,000 hours for a 'physician and surgeon certificate,' he shall be admitted to examination for his form of certificate. The statute sets out the course of instruction which the respective applicants must have pursued, giving the course that is necessary for a 'physician and surgeon certificate' and the course for a 'drugless practitioner certificate.' The descriptions are very elaborate and technical. The statute also prescribes the manner of examination, states the exemptions from its provisions, the penalties for its violation, and for what conduct and upon what conditions the certificates may be revoked. Among the latter is the following: 'Ninth. The use, by the holder of a 'drugless practitioner certificate.' of drugs or what are known as medicinal preparations, in or upon any human being, or the severing or penetrating by the holder of said 'drugless practitioner certificate' of the tissues of any human being in the treatment of any disease, injury, deformity, or other physical or mental condition of such human being, excepting the severing of the umbilical cord.' [Stat. 1913, chap. 354, p. 734.] By § 22 of the original act (unaffected by the Act of 1915), it is provided: 'Nor shall this act be construed so as to discriminate against any particular school of medicine or surgery, or any other treatment, nor to regulate, prohibit or to apply to, any kind of treatment by prayer, nor to interfere in any way with the practice of religion.' [Stat. 1913, chap. 354, p. 736.] It is alleged that the statute violates the 14th Amendment of the Constitution of the United States, especially the equal protection clause thereof, in that it imposes greater burdens upon complainant than upon others in the same calling and position. That it discriminates in favor of the Christian Science drugless practitioner, distinguishes between the treatment of the sick by prayer, the treatment of the sick by faith, mental suggestion, and mental adaptation, and treatment by laying on of hands, anointing with holy oil, or other kindred treatment. Complainant does not employ prayer in the treatment of disease, and is, therefore, not exempt from examination by the medical board, and is subject, therefore, to the penalties of the act if he practises his profession, for which he has fitted himself by study and practice, and upon which he is dependent, and by reason of his age he is in large measure unable to take up any new branch of work. That defendants, appellees here, are threatening prosecutions under the act, and he is without remedy at law. There is an allegation that the supreme court of the state of California has decided that the statute is not offensive to the 14th Amendment, in habeas corpus proceedings prosecuted by one Chow Juyan, who was convicted of practising some form of Chinese healing which was adjudged a violation of the act. The allegations of the bill set forth complainant's particular grievance to be that the statute discriminates between forms of healing the sick and the use of prayer and other drugless methods, and invoke the equal protection clause of the 14th Amendment of the Constitution of the United States. In other words, he attacks the classification of the statute as having no relation to the purpose of the legislation. Of course, complainant is confined to the special discrimination against him; he cannot get assistance from the discrimination, if any exist, against other drugless practitioners. The case, therefore, is brought to the short point of the distinction made between his practice and certain forms of practice, or, more specifically, between his practice of drugless healing and the use of prayer. The principle of decision needs no exposition, and the only question is whether it was competent for the state to recognize a distinction in its legislation between drugless healing as practised by complainant and such healing by prayer. That there is a distinction between his practice and that of prayer, complainant himself, it seems to us, has charged in his bill. He has not only charged that he does not employ either medicine, drugs, or surgery in his practice, but that he does employ faith, hope, and the processes of mental suggestion and mental adaptation. These processes he does not describe. Presumably they are different from healing by prayer,—different from the treatment by Christian Science. But he alleges that for his practice he has become 'particularly fitted by many years of study and practice therein.' In other words, the treatment is one in which skill is to be exercised, and the skill can be enhanced by practice, and the objects of the treatment are diseased human beings whose condition is to be diagnosed. To treat a disease there must be an appreciation of it, a distinction between it and other diseases, and special knowledge is therefore required. And this was the determination of the state; but it determined otherwise as to prayer, the use of which, it decided, was a practice of religion. We cannot say that the state's estimate of the practices and of their differences is arbitrary, and therefore beyond the power of government. And this we should have to say to sustain the contentions of complainant, and say besides, possibly against the judgment of the state, that there was not greater opportunity for deception in complainant's practice than in other forms of drugless healing. Because of our very recent opinions we omit extended reply to the argument of counsel and the cases cited by him, not only of the general scope of the police power of the state, but also of the distinctions which may be made in classifying the objects of legislation. And for like reason we do not review or comment upon the cases cited in opposition to complainant's contentions. It is to be observed that the order of the court was put upon the narrow ground of the averments of the complaint, no opinion beyond such averments being expressed. Decree affirmed.

246.US.257

The Act of August 13, 1894, c. 280, 28 Stat. 278, and the bonds given under it, must be construed liberally for the protection of those who furnish labor or materials in the prosecution of public work. The act is not limited in application to labor and materials directly incorporated into the public work. The amendment of February 24, 1905, c. 778, 33 Stat: 811, does not change it in this respect. Where, because of special circumstances, it was clearly indispensable to the prosecution of a public work that the contractor supply board to the laborers, and board was so supplied, exclusively in the work, the price being deducted monthly from their wages, held, that groceries and provisions furnished the contractor and so consumed by the laborers were materials used "in the prosecution" of the work, within the meaning of the aforesaid acts and the bond given to secure the contract. In the absence of special circumstances making the boarding of the men a necessary and integral part of the work,--as where a contractor runs a boarding house as an independent enterprise, for profit,-the case would be outside the statute. 228 Fed. Rep. 577, reversed.

This is an action against the surety on a bond given under the Act of August 13, 1894, c. 280, 28 Stat. 278, as amended by the Act of February 24, 1905, c. 778, 33 Stat. 811 (Comp. St. 1916, § 6923). The claim of Brogan, an intervening petitioner, was allowed by the District Court; but the judgment was reversed by the Circuit Court of Appeals and judgment entered against him upon the undisputed facts (National Surety Co. v. United States, 228 Fed. 577, 143 C. C. A. 99, L. R. A. 1917A, 336). The case comes here on writ of error under section 241 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1157 [Comp. St. 1916, § 1218]). The facts undisputed or as found by the lower court and accepted by the Court of Appeals were these: The Standard Contracting Company undertook to deepen the channel in a portion of St. Mary's river, Michigan, located 'in a comparative wilderness at some distance from any settlement. There were no hotels or boarding houses' and the contractor 'was compelled to provide board and lodging for its laborers.' Groceries and provisions of the value of $4,613.87 furnished it by Brogan, were used by the contractor in its boarding house; and were supplied 'in the prosecution of the work provided for in the contract and the bond upon which this suit is based. They were necessary to and wholly consumed in such work.' The number of men employed averaged 80. They were 'boarded' partly on the dredges, partly in tents supplied by the contractor; all under an arrangement made with the labor unions—by which the contractor was to board the men and deduct therefor $22.50 a month from their wages. The contract and the bond executed by the National Surety Company bound the contractor to 'make full payment to all persons supplying him with labor or materials in the prosecution of the work provided for in' the contract. The supplies furnished by Brogan under these circumstances were clearly used in the prosecution of the work, just as supplies furnished for the soldiers' mess are used in the prosecution of war. In each case the relation of food to the work in hand is proximate. But the surety contends that the words 'in the prosecution of' the work are not used in the bond and the act in their natural sense, but should be given a conventional meaning so as to exclude labor and materials which contribute to construction only indirectly, as do the supplies consumed by a contractor in operating his plant. In support of this position, attention is called to the fact that while the Act of 1894 provided that the bond should have 'the additional obligation that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work,' and that suit might be brought and recovery had upon this bond by any person who had supplied 'labor or materials for the prosecution of such work,' the Act of 1905 specified that recovery could be had by the persons who had 'furnished labor or materials used in the construction or repair' of the work. But the change in phraseology is not significant. The purpose of the amendment was merely to secure to the United States preference over others in the satisfaction of its claim against the contractor. Illinois Surety Co. v. Peeler, 240 U. S. 214, 218, 36 Sup. Ct. 321, 60 L. Ed. 609. See Report of Committee on H R. 13,626, 58th Congress, Second Session, No. 2360. It was pointed out in Mankin v. Ludowici-Celadon Co., 215 U. S. 533, 538, 30 Sup. Ct. 174, 176 (54 L. Ed. 315) that 'in respect to the condition of the bond required to be given, the language of the amended act is precisely the same as that contained in the act of August 13, 1894'; and in Hill v. American Surety Co., 200 U. S. 197, 201, 26 Sup. Ct. 168, 169 (50 L. Ed. 437) that 'in respect to the persons entitled to the benefit of the bond there has been no material change in the act.' Illinois Surety Co. v. Peeler, supra, 240 U. S. p. 224, 36 Sup. Ct. 321, 60 L. E . 609. This court has repeatedly refused to limit the application of the act to labor and materials directly incorporated into the public work. Thus in Title Guaranty & Trust Co. v. Crane Co., 219 U. S. 24, 34, 31 Sup. Ct. 140, 55 L. Ed. 72, the claims for which recovery was allowed under the bond included not only cartage and towage of material, but also claims for drawings and patterns used by the contractor in making molds for castings which entered into the construction of the ship. In United States Fidelity Co. v. Bartlett, 231 U. S. 237, 34 Sup. Ct. 88, 58 L. Ed. 200, where the work contracted for was building a breakwater, recovery was allowed for all the labor at a quarry opened 50 miles away. This included, as the record shows, the labor not only of men who stripped the earth to get at the stone and who removed the debris, but carpenters and blacksmiths who repaired the cars in which the stone was carried to the quarry dock for shipment, and who repaired the tracks upon which the cars moved. And the claims allowed included also the wages of stablemen who fed and drove the horses which moved the cars on those tracks. In Illinois Surety Co. v. John Davis Co., 244 U. S. 376, 37 Sup. Ct. 614, 61 L. Ed. 1206, recovery was allowed not only for the rental of cars, track and other equipment used by the contractor in facilitating his work, but also the expense of loading this equipment and the freight paid thereon to transport it to the place where it was used. As shown by these cases, the act and the bonds given under it, must be construed liberally for the protection of those who furnish labor or materials in the prosecution of public work. The Circuit Court of Appeals deemed immaterial the special circumstances under which the supplies were furnished and the findings of fact by the trial court that they were necessary to and wholly consumed in the prosecution of the work provided for in the contract and bond. In our opinion these facts are not only material, but decisive. They establish the conditions essential to liability on the bond. The bare fact that the supplies were furnished to the contractor and were consumed by workmen in its employ would have been immaterial. A boarding house might be conducted by the contractor (like some company stores concerning which states have legislated, Keokee Coke Co. v. Taylor, 234 U. S. 224, 34 Sup. Ct. 856, 58 L. Ed. 1288) as an independent enterprise undertaken solely in order to utilize the opportunity for separate and additional profit afforded by the congregation of many laborers in the particular locality where the public work is being performed. The laborers might resort to such a boarding house in the exercise of individual choice in the selection of an eating place. Under such circumstances the furnishing of supplies would clearly be a matter independent of the work provided for in the contract and would not entitle him who had furnished the groceries used in the boarding house to recover on the bond. But here, according to the undisputed facts and the findings of the trial court, the furnishing of board by the contractor was an integral part of the work and necessarily involved in it. Like the supplying of coal to operate engines on the dredges, it was indispensable to the prosecution of the work, and it was used exclusively in the performance of the work. Groceries furnished to a contractor under such circumstances and consumed by the laborers, are materials supplied and used in the prosecution of the public work. The judgment of the Circuit Court of Appeals is therefore reversed and that of the District Court affirmed. Reversed. Mr. Justice McKENNA, Mr. Justice PITNEY, and Mr. Justice McREYNOLDS, dissent.

246.US.63

If the decision of the state court rests upon a ground of general law adequate to support it, independently of the decision upon alleged violation of federal right, ihe case is not reviewable here. So held, where the plaintiff, as assignee of special tax bills issued by a city in payment for sewer construction, claimed that, by appropriating a certain lot in the sewer district through condemnation proceedings and by thus preventing the lien of the tax bills from attaching thereto, the city took property without due process and so rendered itself liable, whereas the state court, construing the sewer contract, the city ordinance and charter and state constitution and laws, held that there could be no recovery against the city on the tax bills themselves, and that the cause of action, if any, for the alleged wrongful taking, was a separate matter not covered by the assignment. Writ of error to review 265 Missouri, 252, dismissed.

The plaintiff in error brought suit in the circuit court of Jackson county, Missouri, to recover on certain tax bills issued to one Michael Walsh, its assignor, for the construction of a sewer in Kansas City, Missouri. The case was tried on an amended petition and answer. The amended petition was filed on May 20, 1909, but it is said the suit was begun on May 29, 1906. The amended petition set out that by an ordinance approved January 24, 1901, Kansas City provided a sewer district, and let a contract for the construction of the sewer to Walsh. That Walsh constructed the sewer, and was paid for the work by special tax bills against sewer district number 146 in Kansas City. That lot 1, block 1, C. H. Pratt's Vine Street addition, is located in said sewer district, and that at the time the work was done and the tax bills issued the owner of said property held the same subject to certain proceedings to condemn said lot for a public parkway in the South Park district of Kansas City established by an ordinance approved October 3, 1899; that said parkway ordinance ordered that said lot 1, block 1 and other property should be condemned for the urpose of a public parkway, and proceedings were begun in the circuit court of Jackson county, Missouri, for the condemnation of the lot for that purpose; that the condemnation proceedings were carried to judgment in the circuit court of Jackson county, Missouri, wherein a verdict had been rendered for the value of the property on June 4, 1901, that the verdict was duly affirmed, and judgment rendered on September 14, 1901, in the circuit court. Upon appeal to the Supreme Court of Missouri said judgment was suspended until affirmed by the Supreme Court, June 4, 1902, and that after that date the city paid for and took possession of said lot 1, block 1, Pratt's Vine Street addition, and now is holding the same for a public park. Plaintiff further alleges that, while the condemnation proceedings were pending in the Supreme Court, Walsh completed the work, and that tax bills therefor were issued to him on March 15, 1902, chargeable in payment of the appropriate share of the cost of the sewer upon the lot above described. The plaintiff alleges that Walsh sold and assigned the certificates or special tax bills to it; that by reason of the condemnation proceedings and the judgment therein the tax bill never became a lien upon the lot, above described, and that upon a final determination of said condemnation case Kansas City was liable to pay the amount of said tax bill with interest, and that the city cannot by an act of itself, not consented to by the plaintiff, either by judicial proceedings in the nature of condemnation or otherwise destroy plaintiff's right to collect the cost of the said work in accordance with the contract mentioned; the plaintiff invokes the Fourteenth Amendment of the Constitution of the United States guaranteeing the protection of its property by due process of law as against the acts of states. Plaintiff alleges that before the beginning of the suit it offered to surrender to the Board of Public Works of Kansas City the tax bills issued as aforesaid, and to accept a certificate as provided in the city charter in lieu thereof, if the board should hold that the said certificates or tax bills were not certificates conformable to the provisions of the charter of Kansas City, but the board refused to accept the same or to issue a new certificate, and denied all liability for the said charge. The city answered the amended petition, and stated therein that on March 15, 1902, it did issue special tax bills to Michael Walsh as set out in the petition; and that Walsh on March 15, 1902, executed and delivered to Kansas City a full and complete release on account of any claim arising on said tax bills as provided in section 16, article 9 of the charter of Kansas City. The answer further sets up that the charter of Kansas City provides a method by which the city shall pay its share of any public improvement on land owned in fee by it; that no certificate was issued by the city on the lot in question or any other lots described in the petition; and that it was not found that the lots mentioned in the petition were owned in fee simple by the city; that there was no compliance with the charter of the city, and no obligation created thereunder. At the trial the tax bills sued upon were introduced, indorsed as follows: 'Assignment. For value received _____ assign this special tax bill and the lien thereof to Municipal Securities Corporation, and _____ authorize to sign _____ name—to the receipt. Michael Walsh.' The record does not disclose when this assignment was made, and it bears no date. Upon trial in the circuit court the court held as a matter of law that Kansas City was an agency of the state of Missouri, and had by its official acts, ordinances and conduct appropriated to the public use the property and property rights of the plaintiff consisting of valid and subsisting liens upon certain real estate without making just compensation, or any compensation therefor, and thereby deprived the plaintiff of ts property without due process of law contrary to the Fourteenth Amendment and contrary to the Bill of Rights of the state of Missouri, and rendered judgment for the plaintiff. The case being taken to the Supreme Court of Missouri the judgment of the circuit court was reversed (265 Mo. 252, 177 S. W. 856) and the case was brought to this court because of an alleged violation of the protection afforded by the Fourteenth Amendment as the result of the alleged wrongful appropriation of the plaintiff's property. The Supreme Court of Missouri after reciting the facts, held that the suit was upon the tax bills, that as Walsh's agreement with the city and the ordinance itself provided that the city should not be liable to pay for the work or any part thereof otherwise than by the issue of special tax bills, and because the charter of the city provided that the city should in no event or in any manner be liable for or on account of the work done in constructing the sewer, but that the work should be paid for in special tax bills which would be a lien on the property described in them, and that under the Constitution of Missouri and the statutes of that state the use of municipal funds in the payment of tax bills was absolutely forbidden, there could be no recovery upon them, and in so far as recovery was sought because of the asserted conversion or destruction of the lien of the tax bills, the judgment for the plaintiff could not stand. Concerning this feature of the case the court said: 'The suit here is upon a tax bill in some aspects and upon a tort as for conversion in others. The petition is sui generis, being possibly what is meant by learned counsel for plaintiff when they say of it in their brief that it is 'typical in form.' 'We need not consider whether a recovery could have been had upon tort, as for the alleged conversion, or destruction, of the property upon which ordinarily the lien of the tax bills would have been fixed. The assignment is not of the tort, nor of the contract, nor of the right to recover upon a quantum meruit, but of the tax bill pure and simple, for it says: 'For value received _____ assign this special tax bill and the lien thereof to Municipal Securities Corporation,' etc. The lien assigned was upon the lots and not against defendant; but the law is fairly well settled that the title of the city to these lots for use as a street attached by relation back under the facts here to the date of the judgment confirming the verdict of the jury, to wit, September 14, 1901, a date long prior to the issuing of the tax bills, which were issued March 15, 1902. In re Paseo, 78 Mo. App. 518. The best that can be said for plaintiff's insistence touching this lien is that the lien of the tax bills attached conditionally to these lots; the condition of attachment being that the defendant would dismiss its condemnation case short of final judgment and payment of the money into court, as under the general law absent a charter provision forbidding, it had the right to do. State ex rel. v. Fort, 180 Mo. 97 [79 S. W. 167]; Railroad v. Second Street Imp. Co., 256 Mo. loc. cit. 407 [166 S. W. 296]. The city did not so dismiss the proceeding and the right of the city, temporarily suspended, as we may express it, by the appeal, attached upon the affirmance here of the judgment of condemnation as of the date of such judgment (In re Paseo, supra), and had the effect to convert these lots of private persons, into integral parts of the highway, or street system of Kansas City, and to take them our of the category of property of private persons upon which liens of tax bills would attach; but since these lots became parts of public highways the judgment condemning them did not have the effect of converting them into that class of city property, the sewering of which created a liability against the city for which certificates evidencing such liability against the city were issuable by charter. Section 14, art. 9, Charter of Kansas City, 189 . If Walsh himself had sued for the tort of conversion alleged in effect by the briefs and contentions of counsel for plaintiff, a different and much more serious question would confront us; but it seems idle to insist that upon the petition here and upon the assignment above quoted, that plaintiff may recover upon the theory of tort. We have seen already how futile and idle is the view that plaintiff may recover upon contract. Moreover, no such tort is assigned. Nothing is assigned, but the tax bill and the lien thereof. * * * But be this as may be, the point of peculiarity in the instant case that plaintiff cannot in any event recover upon any theory of contract, but that it must recover, if at all, upon the theory of liquidated compensation for a tort, which tort was not assigned to it, and on which it does not sue, destroys in our view any helpful analogy between the above cases from other jurisdictions and this one at bar.' As the matter above extracted from the opinion of the Supreme Court of Missouri shows, that court held the action to be on the assigned tax bills, and that if Walsh might have maintained a suit because of the wrongful taking of the property as alleged, nothing was assigned to the plaintiff in error but the tax bills and the lien thereof; and that the plaintiff could not maintain this action as one in tort because it did not appear to be the assignee of such right of action if one existed. It therefore follows that the Missouri Supreme Court rested its decision upon a ground of general law adequate to support it, independently of the decision upon alleged violation of federal right under the Fourteenth Amendment. In that situation it is well settled that a case from a state court is not reviewable here. Wood v. Chesborough, 228 U. S. 672, 33 Sup. Ct. 706, 57 L. Ed. 1018; Consolidated Turnpike Co. v. Norfolk & O. V. R. Co., 228 U. S. 596, 33 Sup. Ct. 605, 57 L. Ed. 982; Giles v. Teasley, 193 U. S. 146, 24 Sup. Ct. 359, 48 L. Ed. 655. It follows that the writ of error must be dismissed for want of jurisdiction, and it is So ordered.

243.US.29

A State may by law provide for the protection of employees engaged in hazardous occupations by requiring that dangerous machinery' be safeguarded, and by making the failure to do so an act of negligence upon which a cause of action may be based in case of injury or death resulting therefrom. Consistently with due process, the State may alsoprovide that in actions brought under such a statute the doctrines of contributory negligence, assumption of risk and fellow servant shall not bar recovery and that the burden shall be upon the defendant to show compliance with the act. Chapter 356 of the Laws of Kansas of 1903, Gen. Stata., 1909, §§ 46764683, as construed by the Supreme Court of the State, lays upon the owners of manufacturing establishments an absolute duty to safeguard their machinery, makes them liable in damages for injuries or death of employees resulting from breach of the duty, and abolishes the defenses of contributory negligence and assumption of risk. Held, that the statute was not rendered violative of due process under the Fourteenth Amendment by application to the case of an employee who had contracted with the owner to provide the safeguards the absence of which resulted later in his injury and death. The statute makes the duty to provide safeguards absolute in the case of corporate as well as indiidual owners, and hence affords no basis for a contention that it denies the equal protection of the laws in permitting the former, while forbidding the latter, to escape liability by contract. 95 Kansas, 96, affirmed.

Chapter 356 of the Laws of Kansas of 1903 (Gen. Stat. 1909, §§ 4676 to 4683) is entitled and provides in part as follows: An Act Requiring Safeguards for the Protection of All Persons Employed or Laboring in Manufacturing Establishments, and Providing Civil Remedies for All Persons So Engaged, or Their Personal Representatives, in Cases Where Any Such Person May Be Killed or Injured While Employed or Laboring in Any Manufacturing Establishment Which Is Not Properly Provided with the Safeguards Required by This Act. * * * * * Sec. 4. All . . . machinery of every description used in a manufacturing establishment shall, where practicable, be properly and safely guarded, for the purpose of preventing or avoiding the death of or injury to the persons employed or laboring in any such establishment; and it is hereby made the duty of all persons owning or operating manufacturing establishments to provide and keep the same furnished with safeguards as herein specified. Sec. 5. If any person employed or laboring in any manufacturing establishment shall be killed or injured in any case wherein the absence of any of the safeguards or precautions required by the act shall directly contribute to such death or injury, the personal representatives of the person so killed, or the person himself, in case of injury only, may maintain an action against the person owning or operating such manufacturing establishment for the recovery of all proper damages. . . . Sec. 6. In all actions brought under and by virtue of the provisions of this act, it shall be sufficient for the plaintiff to prove in the first instance, in order to establish the liability of the defendant, that the death or injury complained of resulted in consequence of the failure of the person owning or operating the manufacturing establishment where such death or injury occurred to provide said establishment with safeguards as required by this act, or that the failure to provide such safeguards directly contributed to such death or injury. This act being in force, Smith, the superintendent of the Lawrence Paper Manufacturing Company, while engaged in adjusting some unguarded dryer rolls, was caught between them, crushed and killed. Relying upon the law above quoted, his personal representative sued Bowersock, the owner of the factory, to recover the damages suffered. The petition alleged the dangerous character of the dryer rolls and the fact that although it was practicable to guard them, the requirements of the act in that respect had not been complied with, and charged that the failure to do so directly caused the death of Smith. It was further alleged that at the time of the accident Smith was engaged in adjusting the machinery under the direction of a superior officer, the assistant manager of the factory. The answer, while denying generally the allegations of the petition, alleged that it was not practicable to guard the dryer rolls, and averred that Smith was guilty of contributory negligence. It was also averred that, as superintendent, Smith, by his contract of employment, was under the duty of safeguarding the machinery, and was charged generally with authority to direct the use of the same, and hence he had assumed the risk of injury from failure to guard the dryer rolls, and hence his injury and death resulted solely from his own neglect, and through no fault on the part of the owner. At the trial the plaintiff's evidence tended to support all of the allegations of the petition. The defendant offered evidence tending to show that the guarding of the dryer rolls was not practicable, and that Smith had been guilty of contributory negligence. Further evidence was introduced tending to show that when Smith was employed as superintendent, it was stipulated by him as a condition to his accepting the position, that he should have full and complete charge and management of the factory, including grounds, building, machinery, and men, and that he should place guards on the machinery where needed for the protection of the employees. In addition the defendant, in support of the allegation that he had fully performed his duty under the statute, introduced in evidence the following notice, which he had posted in the factory in question and three others which he carried on: 'CAUTION. Every Employee is Urged to be Careful in Order to Avoid Accidents. 'If there is any machinery, dangerous place or tool that you think should be safeguarded, repaired, or improved, we will regard it a favor if you will report same at once to the office. It is desired that all employees assist in reducing accidents to lowest possible point. November, 1911.' The court instructed the jury, over the objection of the defendant, that, under the statute, contributory negligence was no defense, and that the fact that Smith was employed as superintendent of the factory, with authority to safeguard the machinery, would not bar a recovery, and charged with reference to the burden of proof, in accordance with the provision of the statute relating to that subject. There was a verdict for the plaintiff, and the judgment entered thereon was affirmed by the court below. It was held, following previous decisions, that the common-law defenses of contributory negligence, fellow servant, and assumption of the risk were not applicable to suits under the statute. The court, further construing the statute, held that it embraced all employees of every class or rank in the factories to which it applied, and that merely because the deceased was employed as superintendent did not exclude him from the benefits of the act nor relieve the owner from responsibility under it. And it was held that a different result was not required because the deceased had contracted with the owner to safeguard the machinery under the circumstances of his employment. In so ruling the court referred to the evidence, and pointed out that although there was testimony as to the authority of the deceased, under his contract, to safeguard the machinery, at the same time the evidence showed that, in the exercise of such authority, he was under the control of three superiors, all of whom had testified that they did not consider it practicable to safeguard the dryer rolls. Attention was also directed to the notice above reproduced which the defendant posted with reference to guards on machinery, as showing a control over that subject by the owner. 95 Kan. 96, 147 Pac. 1118. The case is here because of the asserted denial of rights guaranteed by the 14th Amendment. That government may, in the exercise of its police power, provide for the protection of employees engaged in hazardous occupations by requiring that dangerous machinery be safeguarded, and by making the failure to do so an act of negligence upon which a cause of action may be based in case of injury resulting therefrom, is undoubted. And it is also not disputable that, consistently with due process, it may be provided that, in actions brought under such statute, the doctrines of contributory negligence, assumption of risk, and fellow servant shall not bar a recovery, and that the burden of proof shall be upon the defendant to show a compliance with the act. Missouri P. R. Co. v. Mackey, 127 U. S. 205, 32 L. ed. 107, 8 Sup. Ct. Rep. 1161; Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 56 L. ed. 327, 38 L.R.A.(N.S.) 44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875; Missouri P. R. Co. v. Castle, 224 U. S. 541, 56 L. ed. 875, 32 Sup. Ct. Rep. 606; Chicago, B. & Q. R. Co. v. United States, 220 U. S. 559, 55 L. ed. 582, 31 Sup. Ct. Rep. 612; Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35, 55 L. ed. 78, 32 L.R.A.(N.S.) 226, 31 Sup. Ct. Rep. 136, Ann. Cas. 1912A, 463, 2 N. C. C. A. 243; Easterling Lumber Co. v. Pierce, 235 U. S. 380, 59 L. ed. 279, 35 Sup. Ct. Rep. 133. While not directly disputing these propositions, and conceding that the Kansas statute contains them, and that it is not invalid for that reason, nevertheless it is insisted that the construction placed upon the statute by the court below causes it to be repugnant to the due process clause of the 14th Amendment. This contention is based alone upon the ruling made by the court below that, under the statute, the deceased had a right to recover although he had contracted with the owner to provide the safeguards the failure to furnish which caused his death,—a result which, it is urged, makes the owner liable and allows a recovery by the employee because of his neglect of duty. We think the contention is without merit. It is clear that the statute, as interpreted by the court below,—a construction which is not challenged,—imposed a duty as to safeguards upon the owner which was absolute, and as to which he could not relieve himself by contract. This being true, the contention has nothing to rest upon, since, in the nature of things, the want of power to avoid the duty and liability which the statute imposed embraced all forms of contract, whether of employment or otherwise, by which the positive commands of the statute would be frustrated or rendered inefficacious. Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 52, 56 L. ed. 327, 347, 38 L.R.A.(N.S.) 44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875. Again, it is contended that the statute denies to the plaintiff in error the equal protection of the laws, since it discriminates against factories owned and operated by individuals in favor of those carried on by corporations. This is the case, it is said, because a corporation, in the nature of things, can only comply with the requirements of the statute by contracting with agents or employees to safeguard the machinery, to whom, in case of injury, the corporation would not be liable, while an individual owner, under the ruling of the court, must perform that duty himself. The reasoning is obscure, but we think it suffices to say that it rests upon an entire misconception, since the statute imposes the positive duty to have the machinery duly safeguarded, whether the owner be an individual or a corporation, and the want of power by contract to escape the liability which the statute imposes also equally applies to corporations as well as individuals. It follows, therefore, that the statute affords It follows, therefore, that the statute affords no semblance of ground upon which to rest the argument of inequality which is urged. Affirmed.

245.US.159

Modern tendencies to depart from the strict letter in discovering intent do not alter the principle that, within the scope of his undertaking, a party contracting assumes the risks of intervening obstacles. A contractor agreed with the United States to furnish, at specified rates, such labor and material in place as might be necessary to complete a canal and locks, already built in part, the total payment not to exceed a sum fixed in acts of Congress authorizing the contract. The Government had erected a bulkhead, deemed of sufficient height, to safeguard the work from river floods; the contract, however, did not guarantee protection, referring to freshets, and other natural causes, merely as grounds for time extension. The contractor had been required to base his proposal upon personal investigation, and the specifications provided that he should be held responsible, without expense to the Government, for the preservation and good condition of the work already in place, and that to be added from time to time under the contract, until the contract should be terminated or the whole work turned over in a completed condition as required. To protect the work from an extraordinary flood which exceeded the bulkhead, the contractor necessarily expended work and materials in building new structures, for which he sought reimbursement in the Court of Claims. Held, that the contract was for the completion of the works and that the cost of protecting them from floods in the meantime'was within the contractor's undertaking. 48 Ct. Clms. 128; 50 id. 421, affirmed. THE case is stated in the opinion.

This is a suit by a contractor to recover for work and material furnished to build a bulkhead and temporary dams in order to protect a canal and locks at the cascades of the Columbia River against an extraordinary flood. The facts of the case are simple. An Act of Congress of July 13, 1892, c. 158, 27 Stat. 109, appropriated $326,250 for continuing an improvement at the cascades that had been under way for a number of years, and authorized a contract for completing it, to be paid for as subsequent further appropriations, not exceeding $1,410,250, should be made. On December 27, 1892, the claimants made a contract to 'furnish such labor and material in place,' etc., 'as may be necessary to complete' the canal and locks, at certain rates, the total of all payments not to exceed $1,745,500, the amount of the two just-mentioned sums. The contractor was required in the usual way to base his proposal upon his personal investigation and the specifications provided in reiterated words that the contractor would 'be held responsible, without expense to the Government, for the preservation and good condition of all the work now in place, and such as he may from time to time under this contract put in place, until the termination of the contract, or until the whole work is turned over to the Government in a completed condition, as required.' The Government had built a bulkhead to protect the work, 142 feet high, which was the height of the projected work and was supposed to be high enough for floods, but in May and June, 1894, the flood in question rose three feet above it, necessitating the extra work now sued for, and leading to a change in the project so as to add six feet to the height of the protecting dam. The Government, however, had not guaranteed that the bulkhead should be sufficient or that it would protect the work while going on. On the contrary the contract contemplated, in terms, that the contractor might be prevented from commencing or completing the work by freshets or other forces or violence of the elements and provided in that event that the representative of the United States might allow such additional time as in his judgment should be just and reasonable, but gave no other relief. One who makes a contract never can be absolutely certain that he will be able to perform it when the time comes, and the very essence of it is that he takes the risk within the limits of his undertaking. The modern cases may have abated somewhat the absoluteness of the older ones in determining the scope of the undertaking by the literal meaning of the words alone. The Kronprinzessin Cecilie, 244 U. S. 12, 22, 37 Sup. Ct. 490, 61 L. Ed. 960. But when the scope of the undertaking is fixed, that is merely another way of saying that the contractor takes the risk of the obstacles to that extent. Carnegie Steel Co. v. United States, 240 U. S. 156, 164, 36 Sup. Ct. 342, 60 L. Ed. 576; Globe Refining Co. v. Landa Cotton Oil Co., 190 U. S. 540, 543, 544, 23 Sup. Ct. 754, 47 L. Ed. 1171. There can be no doubt of the scope of the undertaking in this case. If the unqualified agreement to complete the work were not enough by itself, Chicago, Milwaukee & St. Paul Ry. Co. v. Hoyt, 149 U. S. 1, 14, 15, 30 Sup. Ct. 779, 37 L. Ed. 625, the provisions to which we have referred would make it plain. Freshets were contemplated as possible but were not allowed to qualify the absoluteness of the contractor's promise, beyond the possibility that they might be considered in the discretion of the other party on the question of time. It is impossible for us to say that if the flood had destroyed the work that the claimants had added and for which they had received nearly $300,000, they would have been excused under the contract from replacing what they had done. It follows, without the need of referring to clauses in the contract excluding claims for extra work, that if the claimants put up temporary defences against the water, even though not bound to do so by the contract, they were doing what it was for their own interest and safety to do, and that in the absence of an actual contract to pay for it by the other party there is no ground for shifting the cost on to the United States. The arguments that are based by the claimants upon public documents outside of the record do not seem to us to raise a doubt that the construction adopted and conclusion reached by the Court of Claims were correct. Judgment affirmed.

245.US.151

Alimony paid monthly to a divorced wife under a decree of court is not taxable as "income" under the Income Tax Act of October 3, 1913, 38 Stat. 114, 166. In the interpretation of taxing statutes it is the established rule not to extend their provisions, by implication, beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out. Doubts are resolved against the Government. 168 App. Div. 900, affirmed.

A decree of the Supreme Court for New York county entered in 1909 forever separated the parties to this proceeding, then and now citizens of the United States, from bed and board; and further ordered that plaintiff in error pay to Katherine C. Gould during her life the sum of $3,000 every month for her support and maintenance. The question presented is whether such monthly payments during the years 1913 and 1914 constituted parts of Mrs. Gould's income within the intendment of the act of Congress approved October 3, 1913 (38 Stat. 114, 166, c. 16), and were subject as such to the tax prescribed therein. The court below answered in the negative; and we think it reached the proper conclusion. 'Section II, A. Subdivision 1. That there shall be levied, assessed, collected and paid annually upon the entire net income arising or accruing from all sources in the preceding calendar year to every citizen of the United States, whether residing at home or abroad, and to every person residing in the United States, though not a citizen thereof, a tax of 1 per centum per annum upon such income, except as hereinafter provided. * * * 'B. That, subject only to such exemptions and deductions as are hereinafter allowed, the net income of a taxable person shall include gains, profits, and income derived from salaries, wages, or compensation for personal service of whatever kind and in whatever form paid, or from professions, vocations, business, trade, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in real or personal property, also from interest, rent, dividends, securities, or the transaction of any lawful business carried on for gain or profit, or gains or profits and income derived from any source whatever, including the income from but not the value of property acquired by gift, bequest, devise, or descent. * * *' In the interpretation of statutes levying taxes it is the established rule not to extend their provisions, by implication, beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out. In case of doubt they are construed most strongly against the government, and in favor of the citizen. United States v. Wigglesworth, 2 Story, 369, Fed. Cas. No. 16,690; American Net & Twine Co. v. Worthington, 141 U. S. 468, 474, 12 Sup. Ct. 55, 35 L. Ed. 821; Benziger v. United States, 192 U. S. 38, 55, 24 Sup. Ct. 189, 48 L. Ed. 331. As appears from the above quotations, the net income upon which subdivision 1 directs that an annual tax shall be assessed, levied, collected and paid is defined in division B. The use of the word itself in the definition of 'income' causes some obscurity, but we are unable to assert that alimony paid to a divorced wife under a decree of court falls fairly within any of the terms employed. In Audubon v. Shufeldt, 181 U. S. 575, 577, 578, 21 Sup. Ct. 735, 736 (45 L. Ed. 1009), we said: 'Alimony does not arise from any business transaction, but from the relation of marriage. It is not founded on a contract, express or implied, but on the natural and legal duty of the husband to support the wife. The general obligation to support is made specific by the decree of the court of appropriate jurisdiction. * * * Permanent alimony is regarded rather as a portion of the husband's estate to which the wife is equitably entitled, than as strictly a debt; alimony from time to time may be regarded as a portion of his current income or earnings. * * * The net income of the divorced husband subject to taxation was not decreased by payment of alimony under the court's order; and, on the other hand, the sum received by the wife on account thereof cannot be regarded as income arising or accruing to her within the enactment. The judgment of the court below is affirmed.

242.US.603

Following the court below, it is held, that a law-of West Virginia, viz., Acts 1881, c. 17, §§ 69, 71; Code 1913, c. 54, §§ 2983, 2995, in declaring that "railroads" shall be public highways "free to all persons for the transportation of their persons and property," embraces a branch line constructed and operated under it, and imposes on the carrier with respect to such line a continuing franchise obligation to transport passengers as well as freight; and that such obligation may be enforced by state action although the carrier has long operated the branch in freight traffic only and never in any other. The duty to provide adequate transportation facilities for the public, which arises with the acceptance and accompanies the enjoyment of the privileges which a railroad company receives from a State, cannot be avoided merely upon the ground that performance will be attended by. some pecuniary loss. In passing upon the reasonableness of a state order requiring transportation service, the fact that a pecuniary loss will result to the carrier is not the only circumstance to be considered; the nature and extent of the carrier's intrastate business, its productiveness, the character of service required, the public need for it, and its effect upon the service already being rendered, are to be considered also. 75 W. Va. 100, affirmed.

This was a proceeding under the laws of West Virginia (Acts 1913, chap. 9, § 16) to suspend and vacate an order of the Public Service Commission of that state, requiring the Chesapeake & Ohio Railway Company to install and maintain upon a branch line in that state a passenger service consisting of two passenger trains daily each way. The order was assailed on several grounds, one of these being that it was violative of the due process and equal protection clauses of the 14th Amendment to the Constitution of the United States. The supreme court of appeals of the state held that none of the objections was tenable (75 W. Va. 100, L.R.A. ——, ——, 83 S. E. 286), and the railway company brought the case here. In so far as the decision turned upon questions of state law it is controlling, our power of review being restricted to the Federal question. Lindsley v. Natural Carbonic Gas Co. 220 U. S. 61, 75, 55 L. ed. 369, 376, Ann. Cas. 1912C, 160, 31 Sup. Ct. Rep. 337. The order was made after a full hearing wherein the railway company was permitted to present all the evidence which it regarded as helpful. There was but little conflict in the evidence, and the facts, which must here be regarded as proved, are these: The railway company is a Virginia corporation and owns and operates several lines of railroad in West Virginia, including a main line along the Kanawha river. This line consists of two tracks, one on the north side of the river for west-bound trains and one on the south side for trains that are east-bound. Among the stations on the north side is one called Hawks Nest, and across the river is another called MacDougal, the two being connected by a railroad bridge. The main line and these stations are used for both freight and passenger traffic. The company also owns and operates a standard gauge branch line extending from MacDougal and Hawks Nest to the town of Ansted, a little more than 2 miles, and thence another mile to some extensively operated coal mines. This is the branch line to which the order in question relates. Ansted has a population of twelve hundred or more and is the trading center for a population of six thousand. The branch line was constructed in 1890, and has been used for freight traffic only; that is to say, for hauling empty cars to the coal mines and loaded cars from the mines to the main line, and for carrying other freight between the main line and Ansted. The railway company has a freight station at Ansted in charge of an agent and helper, and also maintains a telegraph service there. There is no other railroad at that place and the nearest passenger stations are Hawks Nest and MacDougal. In the year preceding the order the number of passengers taking the main-line passenger trains at these stations was 12,714, and of this number 90 per cent came from Ansted. In the same year the shipments of coal and other freight over the branch line aggregated 242,280 tons. From an operating standpoint there is no serious obstacle to installing upon the branch line the service which the order requires, but the curves and grades are such that particular attention must be given to making the roadbed secure and to providing suitable devices for controlling the trains. Isolatedly considered, such a passenger service would not presently be remunerative, but would entail a pecuniary loss, and how long this would continue to be true can only be conjectured. But beyond this, the effect from a revenue standpoint of installing such a service is not shown. It does not appear either that the company's intrastate passenger business in that state would not yield a reasonable return, or that the traffic, freight and passenger, passing over the branch line to and from points on the main line, would not do so. In support of its position that the order is essentially unreasonable and arbitrary, and therefore repugnant to the due process and equal protection clauses of the 14th Amendment, the railway company contends that the order requires a passenger service to be installed and maintained upon the branch line when that line never has been devoted to anything other than the transportation of freight, and when the service ordered, if separately considered, cannot be rendered without pecuniary loss. It well may be that the power of regulation which a state possesses over private property devoted to public use gives no warrant for requiring that an existing line of railroad, lawfully devoted to a particular public use, such as carrying freight, shall be devoted to a further public use, such as carrying passengers (Northern P. R. Co. v North Dakota, 236 U. S. 585, 595, 59 L. ed. 735, 741, L.R.A. ——, ——, P.U.R.1915C, 277, 35 Sup. Ct. Rep. 429, Ann. Cas. 1916A, 1), but, even if this be so, it has no bearing on the validity of the order in question. As the opinion of the state court shows, the act whereby the railway company was granted the right to construct and operate the branch line did not leave the company free to devote it to freight service only or to passenger service only, but declared that it should be a public highway and 'free to all persons for the transportation of their persons and property,' subject to the payment of the lawful charges for such transportation. Acts 1881, chap. 17, §§ 69, 71; Code 1913, chap. 54, §§ 2983, 2995. True, the section containing this declaration speaks of 'railroads' without particularly mentioning branch lines, but that it embraces the latter is shown by the state court's opinion, which says that this branch line, when constructed, 'became an integral part of the extensive Chesapeake & Ohio system, and must be treated and controlled as such, and not merely as a segregated part of it.' Thus, in legal contemplation, the branch line was devoted to the transportation of passengers as well as of freight, even though actually used only for the latter. An obligation to use it for both was imposed by law, and so could not be thrown off or extinguished by any act or omission of the railway company. It follows that the order, instead of enlarging the public purpose to which the line was devoted, does no more than to prevent a part of that purpose from being neglected. One of the duties of a railroad company doing business as a common carrier is that of providing reasonably adequate facilities for serving the public. This duty arises out of the acceptance and enjoyment of the powers and privileges granted by the state, and endures so long as they are retained. It represents a part of what the company undertakes to do in return for them, and its performance cannot be avoided merely because it will be attended by some pecuniary loss. Atlantic Coast Line R. Co. v. North Carolina Corp. Commission, 206 U. S. 1, 26, 51 L. ed. 933, 945, 27 Sup. Ct. Rep. 585, 11 Ann. Cas. 398; Missouri P. R. Co. v. Kansas, 216 U. S. 262, 279, 54 L. ed. 472, 479, 30 Sup. Ct. Rep. 330; Washington ex rel. Oregon R. & Nav. Co. v. Fairchild, 224 U. S. 510, 529, 56 L. ed. 863, 870, 32 Sup. Ct. Rep. 535; Chicago, B. & Q. R. Co. v. Railroad Commission, 237 U. S. 220, 229, 59 L. ed. 926, 931, P.U.R.1915C, 309, 35 Sup. Ct. Rep. 560 That there will be such a loss is, of course, a circumstance to be considered in passing upon the reasonableness of the order, but it is not the only one. The nature and extent of the carrier's business, its productiveness, the character of service required, the public need for it, and its effect upon the service already being rendered, are also to be considered. Cases supra. Applying these criteria to the order in question, we think it is not shown to be unreasonable. Judgment affirmed.

244.US.261

The established principles limiting the right of a stockholder to sue on behalf of the corporation when it refuses to do so, restated and held applicable to an action for damages based on alleged injury to the corporation through violations of the Sherman Act. The rule which confines the individual stockholder to the equitable forum when seeking to enforce a right of the corporation applies when the cause of action arises under the Sherman Act, as in other cases. Fleitmann v. Welsbach Co., 240 U. S. 27, distinguished. Whether or not in an action by stockholders to enforce an alleged right of their corporation this court has power to substitute as plaintiffs persons appointed receivers of the corporation while the writ of error is pending, Held that in the circumstances- stated in the opinion such a motion was without merit in this case. 223 Fed. Rep. 421, affirmed.

This is an action at law. The complaint alleges that plaintiffs are the holders of more than 200 of the 500,000 shares of the outstanding stock of the defendant United Copper Company, a New Jersey corporation; that the defendants other than that company have by conduct violating the Sherman Law (Act of July 2, 1890, chap. 647, 26 Stat. at L. 209, Comp. Stat. 1916, § 8820) injured it to the extent of more than $5,000,000;1 and that: 'IV. In or about the month of January, 1912, and before the commencement of this action, the plaintiffs, United Copper Securities Company and Arthur P. Heinze, each made a demand upon the defendant, United Copper Company, that this or a like action be instituted by said corporation defendant, and said corporation defendant and its board of directors have refused to comply with said demand, and have failed and refused to commence or cause to be commenced any action whatever in compliance therewith. 'V. This action is commenced and prosecuted by the plaintiff United Copper Securities Company, and by the plaintiff Arthur P. Heinze, each individually and for himself and also on his own behalf and on behalf of all the other stockholders of said United Copper Company.' 'Wherefore, the plaintiffs demand judgment in their favor and in favor of any stockholders of the United Copper Company who may join with them in the prosecution of this action in the sum of threefold damages under § 7 of the act of Congress aforesaid, and that each of the defendants shall be compelled to pay the damages sustained by the United Copper Company, as hereinbefore alleged.' The district court sustained a demurrer and dismissed the complaint. Its judgment was affirmed by the circuit court of appeals. L.R.A. ——, ——, 139 C. C. A. 15, 223 Fed. 421; and the case comes here on writ of error. A motion for substitution of plaintiffs, hereafter referred to, was made in this court and argued with the merits. There is no statement in the complaint that the alleged wrongful acts have caused injury to the plaintiffs as individual shareholders; and no recovery is sought for damages to them or to their property. The case involves, therefore, this single question: Whether a stockholder in a corporation which is alleged to have a cause of action in damages against others for conduct in violation of the Sherman Act may sue at law to recover such damages in the right of the corporation if, after request, it refuses to institute the suit itself? Insuperable obstacles to the maintenance of the action are presented both by the substantive law and by the law of procedure. Whether or not a corporation shall seek to enforce in the courts a cause of action for damages is, like other business questions, ordinarily a matter of internal management, and is left to the discretion of the directors, in the absence of instruction by vote of the stockholders. Courts interfere seldom to control such discretion intra vires the corporation, except where the directors are guilty of misconduct equivalent to a breach of trust, or where they stand in a dual relation which prevents an unprejudiced exercise of judgment; and, as a rule, only after application to the stockholders, unless it appears that there was no opportunity for such application, that such application would be futile (as where the wrongdoers control the corporation), or that the delay involved would defeat recovery.2 In the instant case there is no allegation that the United Copper Company is in the control of the alleged wrongdoers, or that its directors stand in any relations to them, or that they have been guilty of any misconduct whatsoever. Nor is there even an allegation that their action in refusing to bring such suit is unwise. No application appears to have been made to the stockholders as a body, or indeed to any other stockholders individually; nor does it appear that there was no opportunity to make it, and no special facts are shown which render such application unnecessary. For aught that appears, the course pursued by the directors has the approval of all the stockholders except the plaintiffs. The fact that the cause of action is based on the Sherman Law does not limit the discretion of the directors or the power of the body of stockholders; nor does it give to individual shareholders the right to interfere with the internal management of the corporation. But even if the circumstances were such as to justify individual stockholders in seeking the aid of the court to enforce rights of the corporation, it is clear that their remedy is not at law.3 The particular equitable relief sought in Fleitmann v. Welsbach Street Lighting Co. 240 U. S. 27, 60 L. ed. 505, 36 Sup. Ct. Rep. 233, was denied; but this denial affords no reason for assuming that the long-settled rule under which stockholders may seek such relief only in a court of equity will be departed from because the cause of action involved arises under the Sherman Law. This action was commenced May 3, 1912. The judgment dismissing the complaint was rendered in the district court September 24, 1914, and affirmed by the circuit court of appeals April 13, 1915. The case was entered in this court July 27, 1915. On April 7, 1917, about a fortnight before the case was reached for argument, George D. Hendrickson and Luther Martin, Jr., filed in this court a motion that they be substituted as plaintiffs in error. The motion recites that they had, on March 1, 1917, been appointed receivers of the United Copper Company by the court of chancery of New Jersey, and had on April 2, 1917, been authorized by it to apply for such substitution. Annexed to the motion is a copy of the petition for appointment of the receivers which alleges that the United Copper Company had on February 28, 1912, been dissolved by proclamation of the governor of New Jersey for failure to pay franchise taxes; and that it had assets of large value; but that its directors named (who, under the statute, thereupon became trustees for the corporation) had taken no steps whatever to collect its assets or settle its affairs and were not fit and proper persons to be intrusted with them. Only by opposing affidavits, filed by defendants, was it disclosed that, on February 10, 1913, more than four years previously, the district court of the United States for the southern district of New York had appointed other receivers of the United Copper Company, and had vested in those receivers the possession of 'all the properties owned by the said defendant' [the United Copper Company] 'or in which the said defendant has any ownership or interest, whether such property be real, personal, or mixed, of whatsoever kind and description, and wheresoever situated, including . . . things in action, credits, stocks, bonds, securities, shares of stock in the corporations described in the said bill of complaint, and all shares of stock, certificates of equitable interest, and other certificates representing any interest in any property, and all other securities of whatsoever character owned by the defendant company or in which it has any interest or which it controls directly or indirectly,' and that on February 14, 1913, the same persons had been appointed ancillary receivers by the United States district court for the district of New Jersey. We have no occasion to consider the power of this court to grant the motion for substitution. See Kansas P. R. Co. v. Twombly, 100 U. S. 78, 81, 25 L. ed. 550. It is without merit and is denied. Judgment affirmed.

245.US.105

A valid judgment was recovered against Taylor County, Kentucky, upon bonds which it had issued under a refunding act. 1 Acts Ky., 1877-78, p. 554. Under the law existing when the bonds were issued (Ky. Stats., 1894, § 4131), as construed by the highest court of the State, it was the duty of the county court when the office of sheriff was vacant to appoint a single collector, under a single bond, to collect all county taxes, including those levied to pay the county's debts. An amendment (Acts .1906, p. 153, § 3), as construed by the highest court of the State, authorized the county court to appoint more than one collector, under separate bonds, each charged with the duty of collecting such part of the taxes as should be designated in his appointment-an arrangement which made it possible to evade the satisfaction of the county's debts withodt interrupting its revenue for general county purposes. In a mandamus proceeding, the courts below directed the members of the fiscal court of the county to levy taxes to satisfy the judgment at the same time and by the same order which should provide for other county taxes and to place the tax bills for collection in the hands of the sheriff, and in case the sheriff, or successor, should not give bond and qualify, directed the county judge, when appointing a special collector, to include in his order of appointment a direction to collect both the levies to satisfy the judgment and all other levies of county taxes, and to continue such direction until a collector should qualify and give bond, and to exact of him but one bond covering the collection of all the taxes. It was insisted on behalf of the county that, under the amendment, the county judge might appoint more than one collector and that his discretion in that regard could not be controlled by mandamus. Held, that the county's action in other cases, viewed with the present controversy., revealed well-defined plans of its officials, in notorious operation long before the passage of the amendment, to avoid payment of the county's adjudicated indebtedness and a deliberate design to deprive its creditors of an efficacious remedy provided by law and incorporated into its contracts; that this court could not ignore actual conditions and ought not, through assumptions out of harmony with patent facts, to facilitate the practical destruction of admitted legal obligations; that the circumstances made it clear that the right to have taxes levied to discharge the judgment collected along with taxes for general county purposes was a substantial and valuable one, and that, accepting as this court must the state court's construction of the laws involved, the amendment could not be sustained as a provision merely for the ordinary and orderly readjustment of administrative matters, but impaired the obligation of the contract under which the judgment creditors' bonds were issued. In view of the decision of the Kentucky Court of Appeals declaring that an attempt to impose on the Circuit Court or judge thereof the duty of levying and collecting taxes is void under the state constitution, a provision for the satisfaction of bonds in that way, which is made in the Refunding Act of 1878, Acts 1877-78, p. 554, is ineffectual. 238 Fed. Rep. 473, affirmed.

Seeking to enforce a long-standing judgment against Taylor county, respondent instituted this proceeding (May, 1916) in the United States District Court at Louisville against County Judge Hendrickson and justices of the peace constituting the fiscal court. The judgment was based on bonds authorized by a special act of the Kentucky Legislature approved in 1878 and entitled, 'An act for the benefit of Taylor county, empowering it to compromise its debts, issue bonds, and levy and collect taxes to pay the same' (1 Acts 1877-78, p. 554); they had been used to compromise and take up others issued under an act of 1869, entitled 'An act to incorporate the Cumberland & Ohio Railroad Company' (1 Acts 1869, p. 463). He asked a—— 'writ of mandamus, commanding and requiring the defendants to levy a tax upon each one hundred dollars of property assessed for valuation in said county for the year 1916, sufficient to pay plaintiff's aforesaid judgment, interest and costs, and that they be required to include in the order making the levy for ordinary county purposes the aforesaid levy for the purpose of paying the aforesaid judgment, and to further direct the said W. T. Hendrickson, as county judge of Taylor county, that when he next appoints a collector whose duty it shall be to collect any or all items by a levy made by the fiscal court of Taylor county for any purpose, he shall embrace in said order of appointment a direction to the officer appointed to collect both the levy made to pay this judgment and the levy made and to be made for any item which may be levied by said fiscal court, and that said county judge shall continue to so embrace said directions in the same order of appointment until a collector is appointed who shall qualify as such collector, and said* county judge shall exact of him but one and a single bond to cover the collection of the levy made to pay this judgment, as aforesaid, and the item or items of any levy made by the fiscal court of Taylor county for any other purpose.' 'That under the statutes of Kentucky, as construed by the Court of Appeals of Kentucky, the county court of Taylor county has a discretion as to whether it will appoint one person to collect all moneys due the state and the county, and taxing districts therein, or as to whether it will appoint separate collectors and designate in the order of appointment of each collector what he shall collect, including the right and discretion to appoint one collector to collect taxes levied by the fiscal court of the county for ordinary county purposes, and another collector to collect taxes levied by the fiscal court for other purposes, such as the payment of judgments against the county, and to direct in each order of appointment what taxes the appointee thereunder shall collect, and for the collection of which he should be required to give bond. And they respectfully submit that this honorable court cannot, by its judgment, control the aforesaid discretion of the county court of Taylor county, given it by the statutes of Kentucky as construed by the Court of Appeals of Kentucky.' Having heard the cause on demurrer to the answer, the trial court directed that appropriate levies be made during 1916, 1917, and 1918, to raise funds to satisfy respondent's judgment at the same time and by the same order which should provide for other county taxes; and further: 'That said defendants and their successors in office, as the fiscal court of Taylor county, be, and they are hereby, ordered to place the tax bill for each of the aforesaid levies for collection in the hands of the sheriff of Taylor county, and his successor in office, if any, and upon default of said sheriff to execute bond and qualify for said office, then W. T. Hendrickson, county judge, and his successor in office, if any, constituting the county court of said county, is directed when he next appoints a collector whose duty it shall be to collect any or all items of any levy made, or which may hereafter be made by the fiscal court of Taylor county for any purpose, to embrace in said order of appointment a direction to such officer appointed to collect both the levy made or which may hereafter be made to pay this judgment and the levy made or which may hereafter be made for any and all items which are levied or which may be levied by said fiscal court; and said county judge, acting as said county court, shall continue to so embrace such directions in the same order of appointment until a collector is appointed who shall qualify as such collector by executing proper bond; and said county judge shall exact of him but one and a single bond to collect the levy made, or which may hereafter be made to pay this judgment as aforesaid, and the item or items for any levy made, or which may hereafter be made by said fiscal court for any other purpose. * * *' The Circuit Court of Appeals affirmed the action of the District Court, but upon a different view, following Tucker et al. v. Hubbert, 196 Fed. 849, 117 C. C. A. 365, and Graham v. Quinlan, 207 Fed. 268, 124 C. C. A. 654. Petitioners maintain that section 4131, Kentucky Statutes, as amended in 1906 and construed by the Court of Appeals (Commonwealth, etc., v. Moody, 150 Ky. 571, 150 S. W. 680), empowers the Taylor county court to appoint one collector of all county taxes, or, if so advised, to designate more than one and direct each to collect certain taxes, under a bond covering only those specified, and that such discretion cannot be interfered with by mandamus. Respondent maintains that, properly construed, section 4131 permits appointment of only one such collector, and that if the 1906 amendment (Acts 1906, c. 22, art. 8, § 3) means what petitioners assert, it impairs his contract with the county, contrary to the federal Constitution. Article 1, § 10. It is stated, without contradiction, that prior to 1906 section 4131 embodied the applicable statutory provision concerning a collector in effect when the refunding bonds were issued. See Kentucky General Statutes (1873) c. 92, art. 8, § 2; Kentucky Statutes of 1894, § 4131. 'Section 4131. On the failure of the sheriff or collector to execute bond and qualify as hereinbefore provided, he shall forfeit his office, and the county court may appoint a sheriff or collector to fill the vacancy until a sheriff or collector is elected, or it may appoint a collector for the county of all moneys due the state, county or taxing district authorized to be collected by the sheriff, or it may appoint a separate collector of all the moneys due the state, county or any taxing district thereof during the vacancy in the office of sheriff; and in the event the county court fails for thirty days to appoint a collector of money due the state, the auditor of public accounts may appoint a collector thereof. Such collectors shall, within ten days after their appointment, execute bond as required of the sheriff, to be approved by the county court, and if the bond be not executed within said time the appointment of another collector may, in like manner, be made and qualified.' 'But such collector shall only be required to give bond for and collect such taxes or moneys as may be mentioned or provided for in the order of the county court appointing him.' In Commonwealth, etc., v. Wade's Adm'r, etc. (Oct. 1907) 126 Ky. 791, 104 S. W. 965, the Court of Appeals held, that, under the original section, where there was no sheriff only one person could be appointed to collect all county taxes. In Commonwealth, etc., v. Moody (Nov. 1912) 150 Ky. 571, 150 S. W. 680, the same court construed the amendment, and held, we are constrained to conclude, notwithstanding some grave doubts, that it authorized appointment of special collectors, each charged with the duty of collecting only some designated part of assessed county taxes. And, of course, this construction by the state's highest court must be accepted. But, so construed, we are of opinion that the amendment would impair the contract under which the bonds were issued, and upon which respondent has a right to rely. It cannot, therefore, be permitted to defeat the remedy theretofore available to him. The doctrine of this court here to be applied has long been established. In Von Hoffman v. City of Quincy, 4 Wall. 535, 550, 552, 553 (18 L. Ed. 403), through Mr. Justice Swayne, we said: 'It is also settled that the laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. This principle embraces alike those which affect its validity, construction, discharge, and enforcement. * * * Nothing can be more material to the obligation than the means of enforcement. Without the remedy the contract may, indeed, in the sense of the law, be said not to exist, and its obligation to fall within the class of those moral and social duties which depend for their fulfillment wholly upon the will of the individual. The ideas of validity and remedy are inseparable, and both are parts of the obligation, which is guaranteed by the Constitution against invasion. The obligation of a contract 'is the law which binds the parties to perform their agreement.' The prohibition has no reference to the degree of impairment. The largest and least are alike forbidden. * * * It is competent for the states to change the form of the remedy, or to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired. No attempt has been made to fix definitely the line between alterations of the remedy, which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circumstances. Whenever the result last mentioned is produced the act is within the prohibition of the Constitution, and to that extent void.' 'The obligation of a contract, in the constitutional sense, is the means provided by law by which it can be enforced—by which the parties can be obliged to perform it. Whatever legislation lessens the efficacy of these means impairs the obligation. If it tend to postpone or retard the enforcement of the contract, the obligation of the latter is to that extent weakened.' Louisiana v. New Orleans, 102 U. S. 203, 206 (26 L. Ed. 132). And see Seibert v. Lewis, 122 U. S. 284, 294, 295, 7 Sup. Ct. 1190, 30 L. Ed. 1161. Considered in the light of Taylor county's notable and repeated successful efforts to avoid payment of adjudicated indebtedness and also in connection with the present controversy, we think it clear that the right to have any tax levied to discharge respondent's claim collected along with taxes for general county purposes was a substantial and valuable one. The circumstances indicate a deliberate design upon the part of county officials to deprive its creditors of an efficacious remedy provided by law and incorporated into its contracts. To give the amendment the effect claimed would render easier of accomplishment well-defined plans obviously designed to defeat proper judicial process and in notorious operation long before its passage. There is here something more than provision for the ordinary and orderly readjustment of administrative matters evidently intended to facilitate public business. Actual conditions cannot be ignored, and certainly we ought not, through assumptions out of harmony with patent facts and overnice refinements, to facilitate the practical destruction of admitted legal obligations. The declarations of the Court of Appeals of Kentucky in Commonwealth, etc., v. Wade's Adm'r, etc., 126 Ky. 801, 802, 104 S. W. 965, 967, are illuminating. Referring to the appointment of a separate collector charged with the sole duty of collecting a special tax ostensibly levied to satisfy a judgment against Taylor county, it said: 'There can be little doubt that the fiscal court, by what they did in the matter, were undertaking to nullify the judgment of the circuit court. The appointment of the special collector, Trotter, of whom nothing was ever afterward heard, and who in no way attempted to qualify as collector, or discharge the duties of that office, point to the fact that this was an arrangement by which the fiscal court could seemingly comply with the judgment, but without, in fact, accomplishing anything. This unlawful purpose could only be successful by the failure of the regular collector of the revenue to do his duty in the premises, and to collect the taxes provided for by the special levy. Such juggling with the decrees and judgments of the courts cannot be tolerated. Ours, as has often been said, is a government of laws, and, if the judgments of the courts enforcing the law may be thus nullified or disregarded either by overt act or culpable negligence, government is at an end. The county is as amenable to the law as an individual, and it is the high duty of its officials to enforce the law wherever and whenever they are its ministers. * * * It seems to us high time that it should be taught as a practical lesson, as well as a theory, that there are none so high as to be above the restraints of the law, or so low as to be beneath its protection.' The argument for petitioner, that the Refunding Act of 1878 provided an exclusive remedy through application to the circuit court in case the county court should fail in its duty, is not well founded. The decisions of the Court of Appeals in Muhlenburg County v. Morehead, 46 S. W. 484, 20 Ky. Law Rep. 376, and Pennington v. Woolfolk, 79 Ky. 13, make it quite plain that an 'attempt to impose on the circuit court or judge thereof the duty of levying and collecting taxes is unconstitutional and void' under the jurisprudence of Kentucky. Affirmed.

243.US.273

Objection going to the form of the District Court's decree, if not taken on a first appeal to the Circuit Court of Appeals, may be deemed waived on a second. A decree of the District Court that plaintiff "do have and recover" a stated sum, with provisions establishing a lien and for foreclosure, was affirmed by the Circuit Court of Appeals with directions that "such execution and further proceedings be had as according to right and justice, and the laws of the United States, ought to be had." Held, that a decree of the District Court directing foreclosure sale, and that execution issue for any deficiency, was consistent with, and did not exceed, the affirmance. The amount of deficiency being fixed by the sale, the insertion of the amount in the execution was but a clerical act. Under Rev. Stats. of Texas, Art. 1206, a suit against a corporation is not abated by its dissolution pending appeal. Federal courts sitting in equity may render summary judgment against sureties on appeal bonds. Such practice does not invade the constitutional right of trial by jury; nor is it objectionable upon the ground that the legal remedy, by action on the bond, is adequate. While it is the proper and usual practice in such cases to give notice to the surety,-Qumre, Whether notice is always essential? Objections that a summary judgment on an appeal bond was not preceded by notice and deprived the sureties of the right of trial by jury are waived by invoking the trial court's decision of the merits upon an undisputed state of facts. Quire: Whether Rule 29 of this court-Rule 13, 5th C. C. A.-intends that the sureties on a supersedeas bond shall not be bound to pay deficiency decrees in foreclosure cases, but shall pay only the costs and damages resulting from the delay caused by the appeal? A money decree against a corporation and its sureties on a supersedeas bond, followed by levy, was satisfied by a payment made by one of the sureties "as trustee for himself and the other stockholders" of the corporation. ' The record not showing that the surety paid as such, in satisfaction of his own liability, Held, that the sureties had no standing to complain of the decree, since satisfaction, by the principal obligor, ended their liability. 228 Fed. Rep. 273, affirmed.

Pease and Heye were sureties on a supersedeas bond given on appeal to the United States circuit court of appeals in a suit to foreclose a vendor's lien. The district court for the southern district of Texas had entered a decree against the People's Light Company, declaring that Rathbun-Jones Engineering Company 'do have and recover' $6,804.90, with interest; establishing a lien on certain personal property; and directing that it be sold to satisfy the judgment, if the same be not paid within sixty days. The appellate court affirmed the decree. 133 C. C. A. 523, 218 Fed. 167. The mandate directed that the defendant and the sureties 'pay the costs in this court, for which execution may be issued out of the district court,' and 'commanded that such execution and further proceedings be had in said cause as, according to right and justice, and the laws of the United States, ought to be had.' Thereupon the district court, apparently without notice having been given specifically to sureties, entered its 'decree on mandate.' This decree ordered 'that said mandate be made the judgment of this court;' that a sale be made, as herein provided, 'to satisfy said judgment,' and that 'in the event said property does not sell for sufficient amount to satisfy said judgment, interest and costs, the clerk of this court issue execution against the defendant and against the sureties on the appeal bond, . . . for any deficiency that may remain.' The sale was had. Pease, being the highest bidder, purchased all the property for a sum which, when applied upon the judgment, left a large deficiency. Immediately after the sale, and before execution issued, Pease and Heye's administratrix (he having died pending the appeal) filed, in the district court, a motion that execution be stayed and that so much of the 'decree on mandate' as directed its issue be set aside. On the same day a similar motion was filed by the trustee in liquidation of the People's Light Company (it having been dissolved pending the appeal). Both motions were presented by the counsel who had theretofore acted for the defendant. The authority of the court to issue the execution was attacked on several grounds. Both motions alleged that the original decree contained no provision for such execution, and that it could not be enlarged on return of the mandate, because the term had expired at which it was entered. They alleged that the order for execution was illegal because the People's Light Company had been dissolved and Heye had died, pending the appeal. They asserted that the 'decree on mandate,' so far as it directed the issuance of the execution, was 'wrongful and illegal,' because 'it was entered by the court without pleading, without notice, and without hearing, against, to, or of these petitioners,' and 'deprived them of their property without due process of law.' The motion on behalf of the sureties alleged also that they had been deprived of their constitutional right to 'trial by jury in actions at common law.' The prayers for relief were rested, also, on still broader grounds, which involved directly the whole merits of the controversy. It was alleged that the 'bond did not secure, . . . the payment of the amount of said judgment or any deficiency that might remain after the application of the proceeds of the sale of said property, but operated only as indemnity against damages and costs by reason of said appeal,'—and that the costs on said appeal had been paid. The motions, which were fully heard upon evidence introduced by the petitioners, were denied. An appeal was taken by all the petitioners from this denial; and by Pease alone from the 'decree on mandate.' Both the decrees were affirmed on appeal; and a rehearing was refused. 142 C. C. A. 565, 228 Fed. 273. Thereupon petitions to this court for certiorari to the circuit court of appeals were filed and granted. After issue of the execution, Pease instituted still another proceeding,—a suit to restrain its enforcement. But when the injunction was denied by the district court, the marshal made levy, and Pease, 'as trustee for himself and the other stockholders of the People's Light Company,' paid to the clerk of court the balance due on the judgment. An appeal from the denial of the injunction was dismissed by the circuit court of appeals; but review of that decree is not sought here. The petitioners still contend, on various grounds, that the proceedings below are void for lack of due process of law, or should be set aside for error: First. It is contended that the 'decree on mandate' was void so far as it ordered execution to issue for any deficiency; because that direction was not contained in the original decree or in the mandate of the circuit court of appeals. We are referred to cases holding that the lower court must enforce the decree as affirmed without substantial enlargement or alteration. But the original decree ordered that the plaintiff 'do have and recover' $6,804.90. This is the customary language used in personal judgments which are, without further direction, enforceable by general execution. If the defendant desired to insist that, because the suit was a foreclosure proceeding, the decree in this form was not proper, the objection should have been taken on the first appeal; and, not having been so taken, must be considered as waived. The 'decree on mandate' obeyed the command of the mandate 'that such execution and further proceedings be had in said cause as, according to right and justice, and the laws of the United States, ought to be had.' The amount of the deficiency was fixed by the sale; the insertion of the amount in the execution was but a clerical act. Second. It is contended that all suits pending against the People's Light Company abated upon its dissolution. As we read the Texas statute (Rev. Stat. 1911, art. 1206), such a consequence is carefully avoided. It is there provided that upon dissolution the president and directors shall be trustees of the creditors and stockholders of the corporation, 'with full power to settle its affairs,' and with power 'in the name of such corporation . . . to collect all debts, compromise controversies, maintain or defend judicial proceedings.' This general language makes no distinction between pending and subsequent 'judicial proceedings,' which the trustees are empowered to maintain and defend in the corporation's name; and there seems no reason why such a distinction should be read into the statute. There is also the further provision in the article that 'the existence of every corporation may be continued for three years after its dissolution from whatever cause, for the purpose of enabling those charged with the duty to settle upon its affairs.' The People's Light Company, which takes this appeal and gives bond for its successful prosecution, is hardly in a position to assert that it is nonexistent and incapable of maintaining and defending pending suits. Third. It is contended that the district court had no power under the Constitution to render a summary judgment against the sureties upon affirmance of the decree appealed from, and that resort should have been had to an action at law. The method pursued has been introduced by statute into the practice of many states, including Texas. Rev. Civ. Stat. art. 1627. See cases in the margin.1 Pursuant to the requirements of the Conformity Act (Rev. Stat. § 914), this practice is followed by the Federal courts in actions at law. Hiriart v. Ballon, 9 Pet. 156, 9 L. ed. 85; Gordon v. Third Nat. Bank, 6 C. C. A. 125, 13 U. S. App. 554, 56 Fed. 790; Egan v. Chicago G. W. R. Co. 163 Fed. 344. The constitutional right of trial by jury presents no obstacle to this method of proceeding, since by becoming a surety the party submits himself 'to be governed by the fixed rules which regulate the practice of the court.' Hiriart v. Ballon, 9 Pet. 156, 167, 9 L. ed. 85, 89. Although the adoption of state procedure is not obligatory upon the Federal courts when sitting in equity, they have frequently rendered summary judgment against sureties on appeal bonds. See cases in the margin.2 Some of the district courts, by formal rule of court require the bond to contain an express agreement that the court may, upon notice to the sureties, proceed summarily against them in the original action or suit. See Rule 91, Ariz. Dist. Court Rules, adopted March 5, 1912; Rule 90, Wash. Dist. Court Rules, 1905. But this is not a general provision; nor is it a necessary one. For, as this court has said, sureties 'become quasi parties to the proceedings, and subject themselves to the jurisdiction of the court, so that summary judgment may be rendered on their bonds.' Babbitt v. Finn (Babbitt v. Shields) 101 U. S. 7, 15, 25 L. ed. 820, 822. The objection that a court of equity has no jurisdiction because there is an adequate remedy at law on the bond is not well taken. A court of equity, having jurisdiction of the principal case, will completely dispose of its incidents and put an end to further litigation. Applying this principle, equity courts, upon the dissolution of an injunction, commonly render a summary decree on injunction bonds. See cases cited in the margin.3 Fourth. It is contended that notice was not given to the surety of the motion for summary judgment. It is a proper and usual practice to give such notice; but it may be questioned whether notice is always essential. See Union Surety Co. v. American Fruit Product Co. 238 U. S. 140, 59 L. ed. 1238, 35 Sup. Ct. Rep. 828; Johnson v. Chicago & P. Elevator Co. 119 U. S. 388, 30 L. ed. 447, 7 Sup. Ct. Rep. 254, and cases in the mangin.4 Furthermore, the last two objections, if originally well taken, were waived or cured by the subsequent proceedings. For the motions filed later invoked a decision by the court upon the question of the sureties' liability on the evidence presented by them; and no relevant fact was in dispute. There was no issue to submit to a jury, even if the sureties had been otherwise entitled thereto. After thus voluntarily submitting their cause and encountering an adverse decision on the merits, it is too late to question the jurisdiction or power of the court. St. Louis & S. F. R. Co. v. McBride, 141 U. S. 127, 35 L. ed. 659, 11 Sup. Ct. Rep. 982; Western Life Indemnity Co. v. Rupp, 235 U. S. 261, 273, 59 L. ed. 220, 224, 35 Sup. Ct. Rep. 37. Fifth. It is further contended that the district court erred in entering judgment against the surety for the deficiency, instead of merely for the costs and any damages to the plaintiff resulting from the delay incident to the unsuccessful appeal. This objection raises a more serious question. The supersedeas bond was in the common form, conditioned that the appellant shall 'prosecute its appeal to effect and answer all damages and costs, if it fails to make its plea good.' It has long been settled that a bond in that form binds the surety, upon affirmance of a judgment or decree for the mere payment of money, to pay the amount of the judgment or decree. Catlett v. Brodie, 9 Wheat. 553, 6 L. ed. 158. Rule 29 of this court—rule 13, 5th C. C. A.—makes provision for a difference with respect to the bond, between a judgment or decree for money not otherwise secured, and cases 'where the property in controversy necessarily follows the event of the suit, as in real actions, replevin, and in suits on mortgages.' It is not clear whether the purpose of the rule, in case of secured judgments or decrees, was merely to limit the amount of the penalty, or was also to affect the nature of the liabilities, so that the sureties would be liable to answer only for the costs, and damages actually resulting from the delay. We are, however, relieved from deciding this question; because the record discloses that after the issue of the execution complained of, Pease paid the amount due 'as trustee for himself and the other stockholders of the People's Light Company.' In other words, the record does not show that Pease paid the amount as surety in satisfaction of the deficiency of judgment against himself. The payment by him may have been made 'as trustee,' because before that time the corporation had been dissolved. If this payment was made on behalf of the corporation, obviously Pease could get no benefit from a reversal of the decree; and as the decree has been satisfied by the principal obligor, the sureties are in no danger of further proceeding against themselves. On the facts appearing of record the decree is therefore affirmed.

243.US.15

An independent sovereignty will not lend the aid of its courts to enforce a foreign contract where such action would be repugnant to good morals, lead to disturbance or disorganization of its municipal laws, or otherwise violate its public policy. The courts of one sovereignty, .however, will not refuse effect to the principle of comity by declining to enforce contracts which are valid under the laws of another sovereignty unless constrained thereto by clear conviction of the existence of the conditions justifying that course. Since the definition of public policy lies peculiarly with the law-making power, the policy indicated by its enactments must control comity in the enforcement of foreign contracts. The foregoing principles apply to the several States, under the common obligations of the Constitution, more strongly.than to sovereignties which are independent of one another. Contracts between citizens of New York and a citizen of Texas, executed in New York, for the purchase and sale of cotton for future delivery upon the New York Cotton Exchange, pursuant to its rules, etc., Held valid under the New York law and under the common law. Contracts with brokers for the purchase and sale of cotton for future delivery, under and subject to the rules of a cotton exchange, which rules permit the substitution in delivery of grades other than that upon which the contract price is based and provide that in such case the price shall be readjusted according to the rates of the exchange "existing on the day previous to the date of the transferable notice of delivery," are not necessarily to be regarded as violating the policy evinced by the Texas "Bucket Shop'Law," Rev. Crim. Stats. 1911, c. 3, Arts. 538, 539, when it is alleged and admitted that actual delivery of the goods was bona fide intended by the parties; Nor are they repugnant to the public policy of Texas as manifested by other statutes of the State or by decisions of its courts. The general provisions contained in Arts. 545 and 546 of the Texas statute, supra, and which shift the burden of proof in particular criminal prosecutions under it, afford no ground, in a civil case brought to enforce a contract, for holding that the averments of the petition must be taken to be untrue. Whether the mere existence of a state statute punishing those who contract for the sale or purchase of goods or securities to be delivered in the future, not intending in good faith that delivery shall be made, could constitutionally justify the courts of that State, or in any event the courts of the United States exercising jurisdiction therein, in declining to enforce like contracts when made under like circumstances in another State and valid where made,--are questions upon which the court expresses no opinion.

The question as to which the court below desires to be instructed upon the case as stated in the foregoing certificate is this: 'Where a contract between a citizen of the state of New York and a citizen of the state of Texas is entered into, made, and executed in the state of New York, for the sale of cotton for future delivery upon the New York Cotton Exchange, pursuant to the rules, regulations, customs, and usages of said Exchange, and the same is a valid exigible contract in the state of New York, does the statute of the state of Texas (known as the 'Bucket Shop Law') passed by the 30th legislature of the state of Texas, in 1907, the same being incorporated in the Revised Criminal Statutes of Texas (1911) as chapter 3, pages 141, 142, or any public policy therein declared, prevent a district court of the United States, sitting in Texas, wherein a suit is brought to recover for breach of said contract, from granting such relief as otherwise but for such statute the parties would be entitled to have and receive?' We construe the question as simply asking whether, under the pleadings as stated in the certificate, a cause of action was disclosed which there was jurisdiction to hear, taking into consideration the local law, including the provisions of the Texas statute referred to in the question. It is obvious on the face of the pleadings, as stated in the certificate, that the contract the enforcement of which was sought was valid under the laws of the state of New York, the place where it was entered into and where it was executed, and this validity was not and could not be affected by the laws of the state of Texas, as, in the nature of things, such laws could have no extraterritorial operation. This conclusion is, however, negligible, as the question is not whether the contract was valid, but whether, being valid under the law of New York, it was susceptible, consistently with the laws of Texas, of enforcement in the courts of the United States, sitting in that state. And this question involves the inquiry, Was there any local public policy in the state of Texas which, consistently with the duty of the courts of that state under the Constitution to give effect to a contract validly made in another state, was sufficient to warrant a refusal by the courts of that state to discharge such duty? A statement of a few elementary doctrines is essential to a consideration of this issue. Treating the two states as sovereign and foreign to each other,—New York, under whose laws the contract was made and where it was valid, and Texas, in whose courts we are assuming it was sought to be enforced,—it is elementary that the right to enforce a foreign contract in another foreign country could alone rest upon the general principles of comity. But, elementary as is the rule of comity, it is equally rudimentary that an independent state under that principle will not lend the aid of its courts to enforce a contract founded upon a foreign law where to do so would be repugnant to good morals, would lead to disturbance and disorganization of the local municipal law, or, in other words, violate the public policy of the state where the enforcement of the foreign contract is sought. It is, moreover, axiomatic that the existence of the described conditions preventing the enforcement in a given case does not exclusively depend upon legislation, but may result from a judicial consideration of the subject, although it is also true that courts of one sovereignty will not refuse to give effect to the principle of comity by declining to enforce contracts which are valid under the laws of another sovereignty unless constrained to do so by clear convictions of the existence of the conditions justifying that course. And finally, it is certain that, as it is peculiarly within the province of the lawmaking power to define the public policy of the state, where that power has been exerted in such a way as to manifest that a violation of public policy would result from the enforcement of a foreign contract validly entered into under a foreign law, comity will yield to the manifestation of the legislative will and enforcement will not be permitted. It is certain that these principles which govern as between countries foreign to each other apply with greater force to the relation of the several states to each other, since the obligations of the Constitution which bind them all in a common orbit of national unity impose of necessity restrictions which otherwise would not obtain, and exact a greater degree of respect for each other than otherwise by the principles of comity would be expected. It is unnecessary to cite authority for these several doctrines since, as we have said, they are indisputable; but they nowhere find a more lucid exposition than that long ago made by Mr. Chief Justice Taney in Bank of Augusta v. Earle, 13 Pet. 519, 589, 590, 10 L. ed. 274, 308, 309. Coming to apply these principles from general considerations, as it is undoubted that the New York contract as declared on was not only valid under the law of New York, but was not repugnant to the common or general law, as long since settled by this court (Irwin v. Williar, 110 U. S. 499, 28 L. ed. 225, 4 Sup. Ct. Rep. 160; Bibb v. Allen, 149 U. S. 481, 37 L. ed. 819, 13 Sup. Ct. Rep. 950; Clews v. Jamieson, 182 U. S. 461, 45 L. ed. 1183, 21 Sup. Ct. Rep. 845), and as we have been referred to and have been able to discover no decision of the courts of Texas or statute of that state causing its enforcement to be repugnant to the public policy of Texas, it must result that the question would have to be answered in the negative unless a different conclusion is required by the provisions of the particular state statute referred to in the question. The statute is criminal and provides a punishment for the offenses which it defines, and the argument is that, this being true, it necessarily forbids, as a matter of public policy, the enforcement in Texas of contracts, although lawful by the laws of another state, which, if entered into in Texas, would be criminal, since it must be that the public policy of Texas exacts that the results of a contract which, if made in Texas, would be punished as a crime, shall not be susceptible of enforcement in its civil courts because made in another state. But, without stopping to analyze the authorities relied upon to sustain the proposition in order to determine whether they support the doctrine as broadly stated, we observe that although the proposition were to be conceded for the sake of the argument only, that concession is immaterial for this reason: The statute relied upon (the pertinent sections are in the margin1) does not make criminal all sales for future delivery of the property described, but only forbids and punishes the making of contracts of that nature where certain prescribed conditions are not exacted or do not exist. It looks, therefore, not to prohibit all such contracts, but to secure in all when made in Texas the presence of conditions deemed to be essential. Indeed, it goes further, since even although the contract on the subject may have been made with the express stipulation as to delivery exacted by the statute, nevertheless crime and punishment may result as against a particular party to the contract who, in bad faith, has assented to the express stipulation, which otherwise would be valid. These conclusions we think plainly result from the definitions which the statute makes in the first class as to delivery, in the second class as to option, and in the third as to ultimate performance, none of which conditions, we think, can be said to necessarily embrace the contract sued upon, taking the facts alleged in the petition to be established. It is true the statute contains general provisions in articles 545 and 546 (which we do not reproduce) that wherever a criminal prosecution is commenced against a person who may have made a particular future contract containing provisions in violation of the statute, the presumption shall be prima facie that the illegal conditions existed, and therefore that there was guilt until the contrary was shown. But we are of opinion that this affords no ground in a civil case brought to enforce a contract, for holding that the averments of the petition must be taken to be untrue in order to defeat a right to be heard, simply because, under a criminal statute as to particular offenses, the burden of proof is shifted. Concluding, as we do, that, accepting the averments of the petition as true, the cause of action was susceptible of being heard in the courts of Texas, and therefore was also susceptible of being brought in the courts of the United States in that state, we are of opinion that the question asked should be replied to in the negative. And of course we must not be understood as deciding whether the mere existence of a state statute punishing one who, in bad faith, and because of such bad faith, had made an agreement to deliver in a contract of sale which would be otherwise valid, could become the basis of a public policy preventing the enforcement in Texas of contracts for sale and delivery made in another state which were there valid, although one of the parties might have made the agreement to deliver in bad faith. In other words, we must not be understood as expressing any opinion on the subject of whether, consistently with the very nature of the relations between the several states resulting from the constitutional obligations resting upon them, the courts of Texas, under the guise of a public policy resting merely on the conditions stated, could rightfully refuse to enforce a contract validly made in another state, or at all events whether, under such circumstances, such a contract would not, in the nature of things, be enforceable in the appropriate courts of the United States. A negative answer is therefore made to the question asked, and it is ordered that it be so certified.

242.US.409

The Acts of July 14, 1862, c. 167, 12 Stat. 569, and February 17, 1865, c. 38, 13 Stat. 431, under which appellant's bridge was built across the Ohio River, were not intended and did not operate to confer an irrepealable franchise to maintain the bridge as authorized and originally constructed, nor did they create a vested right demanding compensation under the Fifth Amendment when changes were subsequently required by Congress in the interest of navigation. United States v. Parkersburg Branch R. Co., 134 Fed. Rep. 969; 143 Fed. Rep. 224, overruled. MonongahelaN avigation Co. v. United States, 148 U. S. 312, and United States v. Baltimore & Ohio R. R. Co., 229 U. S. 244, distinguished. When indefeasible private rights are sought to be derived from regulatory provisions made in the exercise of the power to regulate commerce, the case is peculiarly one for the application of the universal rule that grants of special franchises and privileges are to be strictly construed in favor of the public right, and nothing is to be taken as granted concerning which any reasonable doubt may be raised. In construing the acts above cited, the court judicially notices their coincidence in time with the Civil War, the lack of bridges over the Ohio at Cincinnati, Louisville, and points west, the natural difficulties of crossing the stream, the urgent need of a bridge to transfer troops and supplies south, and the fact that financial disturbances made it difficult to secure capital for large undertakings. The absence of an express reservation of the right to alter or repeal has not the same significance in acts of Congress as in state legislation, and in the acts above cited is without conclusive effect. Acts like those here in question, being passed in the regulation of commerce for the guidance of future conduct, carry the suggestion of future changes; and, in their construction, it should be presumed that Congress intended to preserve its power to make future adjustments, in pace with commercial developments-assuming, but not deciding, that such power could be shackled or surrendered. The Act of March 3, 1899, c. 425, 30 Stat. 1121, 1153, so repealed or modified the Acts of 1862 and 1865 as to include appellant's bridge within its operation. The authority of the Secretary of War under the Act of 1899, to require changes, involves no unlawful delegation of legislative or judicial power, 233 Fed. Rep. 270, affirmed.

Appellant is the owner of a bridge across the Ohio river at Louisville, Kentucky, known as the 'Ohio Falls bridge,' which was built under an act of Congress approved February 17, 1865 (chap. 38, 13 Stat. at L. 431), supplementary to an act approved July 14, 1862 (chap. 167, 12 Stat. at L. 569). The 1862 Act, as amended, allowed the bridge to be built under one of several plans detailed, and with a prescribed minimum width for spans and a minimum clearance height above the water. This act, in its 5th section, declared: 'That any bridge or bridges erected under the provisions of this act shall be lawful structures, and shall be recognized and known as post routes, . . . and the officers and crews of all vessels, boats, or rafts navigating the said Ohio river are required to regulate the use of the said vessels and of any pipes or chimneys belonging thereto, so as not to interfere with the elevation, construction, or use of any of the bridges erected or legalized under the provisions of this act.' The 1st section of the 1865 Act contained a proviso 'that said bridge and draws shall be so constructed as not to interrupt the navigation of the Ohio river;' the 2d section declared 'that the bridge erected under the provisions of this act shall be a lawful structure, and shall be recognized and known as a post route.' The Ohio Falls bridge was built in all respects in accordance with the requirements of these acts, except that, instead of the minimum channel span of 300 feet prescribed, the builders made spans of 380 feet and 352 4/1 feet respectively, and exceeded the clearance height of the highest of the authorized plans, thus expending $150,000 more than was necessary to comply with the letter of the law. The bridge was completed in the year 1870, and since then has been continuously in use as a railroad bridge, furnishing one of the principal thoroughfares across the Ohio river from north to south. Its superstructure now requires renewal, but this can be done without obstructing navigation any further than the bridge does at present and has done ever since its construction. In the year 1914 the Secretary of War, proceeding under § 18 of an act of Congress approved March 3, 1899 (chap. 425, 30 Stat. at L. 1121, 1153, Comp. Stat. 1913, § 9970), gave notice to appellant that he had good reason to believe the bridge was an obstruction to navigation because of insufficient horizontal clearance of the channel span crossing the main navigable channel of the river, and insufficient width of opening in the existing swing span crossing the Louisville & Portland Canal, and appointed a time and place for a hearing upon this question. Appellant introduced no evidence at the hearing, but filed a protest against any action by the Secretary under the Act of 1899, on the ground that this act did not affect bridges constructed under the Acts of 1862 and 1865, or that, if it attempted to do so, it was unconstitutional. After the hearing the Secretary made an order notifying appellant to alter the bridge within three years, so as to provide an enlarged horizontal opening for the main navigable channel, and to change the swing span across the channel to a lift span having a prescribed horizontal clearance, and a prescribed vertical clearance when open. A further hearing and some correspondence having led to no result, appellant notified the Secretary of War in writing that it insisted on the right to renew its superstructure on the existing masonry without changing the length of any of the existing spans, 'so that when completed it will not interfere with navigation any more than it does now,' and that it intended to commence the of renewal at once. Shortly thereafter the Attorney General filed a bill for an injunction in the district court; appellant answered, setting up its claims as above indicated; and the case was brought to a hearing upon stipulated facts presenting, as the sole question to be determined,—the legality of the order of the Secretary of War as applied to the bridge in question. A final decree was made restraining appellant from reconstructing the superstructure of the bridge in a manner inconsistent with the provisions of the Secretary's order (233 Fed. 270), and the case comes here by direct appeal, as permitted by § 18 of the 1899 Act. Concisely stated, the position of appellant is that the Ohio Falls bridge was constructed under an irrevocable franchise, and became upon its completion a lawful structure and the private property of appellant; that Congress had no power to require its removal except in the exercise of the Federal authority to regulate commerce, and subject to the provision of the 5th Amendment that private property shall not be taken for public use without just compensation; and that the Act of 1899, being a general act, does not, by fair construction, operate to repeal the special franchise conferred by the Acts of 1862 and 1865, and, if it does, it is unconstitutional because it fails to make provision for compensation. The first and fundamental contention is rested in part upon facts of which we may take judicial notice, that when the Acts of 1862 and 1865 were passed the Civil War was in progress, and there was urgent need of a bridge over the Ohio river west of the Big Sandy (the eastern boundary of Kentucky) to provide for the transfer of troops and supplies from the North to the South; that there were no bridges crossing the Ohio at either of the cities of Cincinnati or Louisville, or at any point west of them, and that the movement of troops and supplies was thereby greatly hampered; that the river at Louisville is approximately a mile wide, the current quite rapid on account of the Falls, and in winter frequently filled with ice, so as to render a bridge a pressing necessity; and that the war had disturbed somewhat the finances of the country, and capital for large undertakings was difficult to secure. But the argument lays especial stress upon the declaration that the bridge in question should be a lawful structure and recognized and known as a post route, and the fact that neither the original nor the supplemental acts contained any reservation of the right to alter, or amend, or revoke the franchise. These are no doubt weighty considerations, and raise a grave question, but they do not necessarily dispose of it. Clearly, the acts were passed under the power of Congress to regulate commerce. That power is a very great power, and in its nature continuing, not being exhausted by any particular exercise. We need not go so far as to say that Congress could not in any case, by contract or estoppel, prevent itself from modifying or revoking a regulation once made and substituting another in its place without compensation. But when private rights of an indefeasible nature are sought to be derived from regulatory provisions established in the exercise of this power, the case is peculiarly one for the application of the universal rule that grants of special franchises and privileges are to be strictly construed in favor of the public right, and nothing is to be taken as granted concerning which any reasonable doubt may be raised. As this court, speaking through Mr. Chief Justice Waite, declared in Newport & C. Bridge Co. v. United States, 105 U. S. 470, 480, 26 L. ed. 1143, 1147: 'Congress, which alone exercises the legislative power of the government, is the constitutional protector of foreign and interstate commerce. Its supervision of this subject is continuing in its nature, and all grants of special privileges, affecting so important a branch of governmental power, ought certainly to be strictly construed. Nothing will be presumed to have been surrendered unless it was manifestly so intended. Every doubt should be resolved in favor of the government.' The absence of an express reservation of the right to alter or amend is not conclusive. As is well understood, reservations of this kind have a peculiar fitness in state legislation, being traceable historically to the decision of this court in Dartmouth College v. Woodward, 4 Wheat. 518, 4 L. ed. 629, that a corporate charter is a contract within the meaning of that clause of art. 1, § 10, of the Constitution, which declares that no state shall pass any law impairing the obligation of contracts, so that a state law altering such a charter in a material respect without the consent of the corporation is unconstitutional and void; and the suggestion in the concurring opinion of Mr. Justice Story (p. 675) that the reservation of a power to alter or amend the charter would leave the state free to enact subsequent amendatory legislation. Miller v. New York, 15 Wall. 478, 494, 21 L. ed. 98, 103; Greenwood v. Union Freight R. Co. 105 U. S. 13, 20, 26 L. ed. 961, 964; Spring Valley Waterworks v. Schottler, 110 U. S. 347, 352, 28 L. ed. 173, 175, 4 Sup. Ct. Rep. 48. Congress is not prevented by the Constitution from passing laws that impair the obligation of contracts, and in its enactments the presence or absence of such a reservation has not the same peculiar significance that it has in state legislation. It is no doubt a circumstance, but not by any means conclusive. At the time the Acts of 1862 and 1865 were passed, it was not customary for Congress to include in legislation of this character an express reservation of a power of future control or repeal. In an Act of August 31, 1852 (chap. 111, 10 Stat. at L. 112, §§ 6 and 7), certain bridges already in existence across the Ohio river were declared to be lawful structures. The next acts of a similar character appear to have been those now under consideration. Contemporaneously with the second of these, an act was passed (chap. 39, 13 Stat. at L. 431) declaring a bridge then under construction across the Ohio between Cincinnati and Covington to be a lawful structure. In neither of these was there any express reservation of future control. In succeeding years1 numerous bridge acts were passed containing in one form or another a reservation of the power to alter or amend the act or to withdraw the assent given. These provisions may well have been inserted from abundant caution, and because provisions of like character had become familiar in state legislation. But obviously, they throw no direct light upon the intent of Congress in preceding legislation While scrutinizing the acts of 1862 and 1865 in the effort to determine the legislative intent as therein expressed, we should primarily consider the fact that they were exertions of a power to regulate commerce. Such a regulation, designed as it is to furnish a guiding rule for future conduct, carries with it the suggestion that it may not always remain unchanged. And since our interstate and foreign commerce is a thing that grows with the growth of the people, and its instrumentalities change with the development and progress of the country, it was not natural that Congress, in enacting a regulation of such commerce, should intend to put shackles upon its own power in respect of future regulation. The act declared that the bridge, when erected, should be 'a lawful structure;' but there are no words of perpetuity, nor any express covenant against a change in the law. There is a proviso in the 1865 Act that the bridge and draws shall be so constructed as not to interrupt the navigation of the river,—an evident modification of that clause of the 1862 Act which required vessels to be so regulated as not to interfere with the bridge. It is possible to construe the proviso as referring solely to the time of original construction, and as satisfied if the bridge and draws did not then obstruct navigation; but this would disregard the fundamental rule that requires strict construction of such grants as against the private right. In the light of that rule, the true meaning rather is that the bridge and draws should be so constructed as not at any time to interrupt navigation. (See West Chicago Street R. Co. v. Illinois, 201 U. S. 506, 515, 521, 50 L. ed. 845, 848, 851, 26 Sup. Ct. Rep. 518.) Indeed, the proviso seems to have been so interpreted by the recipients of the grant, for, as appears from the stipulation, the original builders of the bridge did not limit themselves to giving only what they were compelled by law to give, but, at large expense to themselves, exceeded the heights and widths that the act required. It is true that Congress must have contemplated that a large investment of private capital would be necessary, and that the bridge when once constructed could not be abandoned or materially changed without a total or partial loss of value. This is a very grave consideration, and we have not at all overlooked it; but we cannot deem it controlling of the question presented. It may be assumed that the parties foresaw, what experience since has demonstrated, that it would be many years before changing conditions of navigation would render the bridge out of date, and that the investors were satisfied with the prospect of the profit to be gained from the use of the bridge in the meantime. A circumstance perhaps bearing in the same direction is that appellant is a Kentucky corporation, chartered by an act of the legislature approved March 10, 1856 (Acts 1855-56, vol. 2, p. 426), which contains a proviso, 'that said bridge shall be constructed so as not to obstruct navigation, further than the laws of the United States and the decisions of the Supreme Court of the United States shall hold to be legal.' Reviewing the entire question, bearing in mind the nature of the subject matter, the circumstances of the period of the enactments, and the language employed by Congress, and construing this strictly against the grantee, as the familiar rule requires, we are constrained to hold that the Acts of 1862 and 1865 conferred upon appellant no irrepealable franchise to maintain its bridge precisely as it was originally constructed, and created no vested right entitling appellant to compensation under the 5th Amendment in case Congress should thereafter, in the exercise of its power to regulate commerce, require changes to be made in the interest of navigation. This being so, the authority of Congress to compel changes was precisely the same as if the bridge had been constructed under state legislation without license from Congress, as in Union Bridge Co. v. United States, 204 U. S. 364, 388, 400, 51 L. ed. 523, 534, 539, 27 Sup. Ct. Rep. 367; Monongahela Bridge Co. v. United States, 216 U. S. 177, 193, 54 L. ed. 435, 442, 30 Sup. Ct. Rep. 356; or had been constructed under congressional consent or authorization coupled with an express reservation of the right of revocation or amendment, as in Newport & C. Bridge Co. v. United States, 105 U. S. 470, 481, 26 L. ed. 1143, 1147; Hannibal Bridge Co. v. United States, 221 U. S. 194, 207, 55 L. ed. 699, 704, 31 Sup. Ct. Rep. 603. We are aware that a different result was reached by the circuit court and circuit court of appeals in United States v. Parkersburg Branch R. Co. 134 Fed. 969, 74 C. C. A. 354, 143 Fed. 224; and by the circuit court in some previous cases referred to in 134 Fed. 973. But, upon mature consideration, we have concluded that these decisions must be overruled. Appellant cites Monongahela Nav. Co. v. United States, 148 U. S. 312, 37 L. ed. 463, 13 Sup. Ct. Rep. 622, but it is plainly distinguishable. There the Navigation Company under a state charter had constructed locks and dams in the Monongahela river, to the great improvement of its navigation, and by a supplement to its charter had been required to commence the construction of lock and dam No. 7 in such manner and on such plan as would extend the navigation from its then present terminus to the state line. This work was to complete the company's improvements in the state of Pennsylvania. Thereafter Congress, in 1881, appropriated $25,000 for improving the Monongahela river in West Virginia and Pennsylvania, with the proviso that the money should not be expended until the Navigation Company had undertaken in good faith the building of lock and dam No. 7 and had given assurance to the Secretary of War of its ability and purpose to complete the same. The company gave satisfactory assurance to the Secretary, commenced the work in 1882, and completed it in 1884. By Act of August 11, 1888 (25 Stat. at L. 400, 411, chap. 860), Congress authorized the Secretary of War to purchase this lock and dam from the company, and in the event of his inability to make a voluntary purchase within a specified limit of expense, then to take proceedings for their condemnation, with a proviso that, in estimating the sum to be paid by the United States, the franchise of the corporation to collect tolls should not be considered or estimated. It appeared that the tolls received by the company for the use of its works, including lock and dam No. 7, averaged $240,000 per annum, that the money value of the entire works and franchise was not less than $4,000,000, and that the actual toll receipts of lock and dam No. 7 were in excess of $2,800 per annum, and would probably increase in the near future. This court held the proviso excluding the franchise to collect tolls from consideration in the condemnation proceedings to be inconsistent with the 5th Amendment (p. 336). But it will be observed that this was not a case of removing a structure from the river on the ground that it interfered with navigation, but a taking over of a structure and employing it in the public use as an instrumentality of navigation. In short, there was a clear taking of the property of the company for public use as property, and an attempt at the same time to exclude from consideration an essential element of its value when ascertaining the compensation to be paid. The case has no bearing upon the one at bar. Reference is made also to our recent decision in United States v. Baltimore & O. R. Co. 229 U. S. 244, 57 L. ed. 1169, 33 Sup. Ct. Rep. 851, and although this court merely affirmed the circuit court on the ground that the matter was res judicata, it is argued that we necessarily decided the questions raised in the present case in order to come to the conclusion that the question was one of res judicata. In view of the very plain language employed in the opinion (pp. 251, 254), the argument is baseless. There remains only the contention that the Act of 1899, being a general act, does not by fair construction operate to repeal or modify the special rights conferred upon appellant by the Acts of 1862 and 1865. We deem this point likewise untenable. In terms the act applies without qualification to 'any railroad or other bridge now constructed or which may hereafter be constructed over any of the navigable waterways of the United States.' It is argued that at the time of its passage there were two classes of bridges to which the term 'now constructed' would properly apply without affecting any vested right, namely (1) bridges theretofore built under state authority only, and (2) bridges theretofore built under congressional authority with a power of amendment or repeal expressly reserved; and that full effect can be given to the language of § 18 without holding that it is a repeal by implication of the declaration of Congress in the Act of 1865 that the Ohio Falls bridge as constructed was a lawful structure and a post route of the United States. But the 1899 Act is not only unqualified in its terms, but from the nature of the subject matter there is every reason for giving it a universal application. As we have seen, appellant had no indefeasible right to maintain its bridge as originally constructed, and the absence of an express right of repeal from the Acts of 1862 and 1865 has as little bearing upon the question of the practical justice or injustice of requiring an alteration in the bridge as it has upon the question of constitutional right. And of course, from the point of view of the requirements of navigation, the particular phraseology of the acts by which the construction of the different bridges was authorized is altogether insignificant. It may be conceded that the declaration of Congress in the Act of 1865 that the bridge was a lawful structure was conclusive upon the question until Congress passed some inconsistent enactment. As was said by Mr. Justice Nelson, speaking for the court in the Wheeling Bridge Case, 18 How. at p. 430, 15 L. ed. 436, although it may have been an obstruction in fact, it was not such in the contemplation of the law. But § 18 of the 1899 Act wrought a change in the law. (There were similar provisions in an Act of August 11, 1888, chap. 860, § 9, 25 Stat. at L. 400, 424; and in an Act of September 19, 1890, chap. 907, § 4, 26 Stat. at L. 426, 453; but we pass them by.) Congress thereby declared that whenever the Secretary of War should find any bridge theretofore or thereafter constructed over any of the navigable waterways of the United States to be an unreasonable obstruction to the free navigation of such waters on account of insufficient height, width of span, or otherwise, it should be the duty of the Secretary, after hearing the parties concerned, to take action looking to the removal or alteration of the bridge, so as to render navigation through or under it reasonably free, easy, and unobstructed. As this court repeatedly has held, this is not an unconstitutional delegation of legislative or judicial power to the Secretary. Union Bridge Co. v. United States, 204 U. S. 364, 385, 51 L. ed. 523, 533, 27 Sup. Ct. Rep. 367; Monongahela Bridge Co. v. United States, 216 U. S. 177, 192, 54 L. ed. 435, 441, 30 Sup. Ct. Rep. 356; Hannibal Bridge Co. v. United States, 221 U. S. 194, 205, 55 L. ed. 699, 703, 31 Sup. Ct. Rep. 603. The statute itself prescribed the general rule applicable to all navigable waters, and merely charged the Secretary of War with the duty of ascertaining in each case, upon notice to the parties concerned, whether the particular bridge came within the general rule. Of course, the Secretary's finding must be based upon the conditions as they exist at the time he acts. But the law imposing this duty upon him speaks from the time of its enactment. And there is no real inconsistency between a declaration by Congress in 1865 that a certain bridge was a lawful structure and not an improper impediment to navigation, and a contrary finding by the Secretary of War in the year 1914. Since we are constrained to hold that none of appellant's contentions is well founded, it results that the decree under review must be affirmed.

245.US.136

Meanings and relations of the terms "through route," "through rate," "joint rate," "sum of the locals," "division of joint rate," "rate-breaking point" and "combination rate" explained and defined. Railroad companies, which, though chartered by different States, are all operating interstate railroads and otherwise engaged in interstate commerce, and which have established a through route between interstate points with a through rate consisting of the sum of the local rates, or of a combination of a local rate with a joint rate to an intermediate point, are not deprived of their rights under the Fifth Amendment when required, by an order of the Interstate Commerce Commission, to substitute a joint through rate (of reasonable amount) for the through rate thus existing, and to maintain the same through route or, at their election, substitute a modification of it which the Commission has found preferable. Such an order is within the power conferred upon the Commission by the Act to Regulate Commerce, as amended. The Commission's order, establishing through routes and a joint rate on logs and lumber from the "blanket territory" of Arkansas to Paducah, Kentucky, which permitted complaining carriers to maintain their route via Cairo, Illinois, or to substitute a route via Memphis, Tennessee, which the Commission found to be the more natural one, the joint rate fixed by the Commission to be the same in either case, is consistent with that provision of § 15 of the Act to Regulate Commerce, forbidding the Commission to embrace in a through route "less than the entire length" of a railroad "unless to do so would make such through route unreasonably long." The power of Congress and of the Commission to prevent interstate carriers from discriminating against a particular locality applies to carriers the lines of which do not reach the locality but which bill through traffic to it over connecting lines. An order of the Commission requiring carriers to reduce existing through rates by establishing joint rates, or, in the alternative, new through routes with joint rates, rests on § 15 of the Act to Regulate Commerce. It is not to be regarded as primarily an order to remove discrimination in violation of § 3, even though discrimination in rates as between two localities may have furnished the occasion for the complaint upon which the Commission acted and may have afforded reason for the rate fixed by its order. 234 Fed. Rep. 668, affirmed.

This suit was brought in the District Court of the United States for the Western District of Kentucky by three railroad companies1 against the United States and the Interstate Commerce Commission. Plaintiffs seek to enjoin the enforcement of and to set aside an order entered by the Commission on January 21, 1916, directing these and other carriers to establish certain through routes and joint rates on logs and lumber to Paducah, Ky., and reducing existing rates. An application was made for a temporary injunction. Both defendants moved to dismiss the bill. The Commission also answered. The case was fully heard upon the evidence before three judges 'as upon final submission upon the merits'; a decree was entered dismissing the bill without costs ([D. C.] 234 Fed. 668); and the case comes to this court by direct appeal. Paducah is situated on the south bank of the Ohio river, 42 miles above Cairo, Ill., which lies on the north bank of the Ohio near its confluence with the Mississippi. An important business in each city is manufacturing and jobbing lumber. They compete in both the buying and the selling markets. Each draws its supplies of logs and lumber, in part, from the extensive region lying west of the Mississippi and south of the Arkansas river, known in the trade as the 'blanket territory.'2 The distances from this region to Paducah are not greater than to Cairo; but, prior to the order of the Interstate Commerce Commission herein complainted of, the through freight rate on logs and lumber was 22 cents per hundred pounds to Paducah while it was only 16 cents to Cairo. The principal railroads serving the 'blanket territory' are the St. Louis Southwestern, the St. Louis, Iron Mountain & Southern, and the Chicago, Rock Island & Pacific. The first two have their own lines from the 'blanket territory' to Cairo, but can reach Paducah only over a connecting line. The Rock Island reaches both Cairo and Paducah only over a connecting line. The most direct route to Paducah from the lines of each of the three complainants is via Memphis, Tenn.; but prior to the order of the Interstate Commerce Commission herein complained of only the Rock Island had established its through route via Memphis. The other two companies had through routes to Paducah via Cairo. These, which had been in operation for many years, are materially longer than possible routes via Memphis; and also necessitate crossing the Ohio as well as the Mississippi. Both the Cairo and the Memphis routes to Paducah involve using as connecting carrier the Illinois Central, which has a line extending from Memphis through Paducah to Cairo.3 The 22-cent rate from the 'blanket territory' to Paducah via Cairo is made by adding to the 'joint rate' or 'local' of 16 cents to Cairo, the local rate of 6 cents from Cairo to Paducah; Cairo being a 'rate-breaking' point.4 The connection of the Rock Island with the Illinois Central at Memphis is made under similar conditions. On February 8, 1915, the Paducah Board of Trade filed with the Interstate Commerce Commission a complaint charging (1) that the 22-cent rate to Paducah was unjust and unreasonable; (2) that it was discriminatory and gave an undue preference and advantage to Cairo; and (3) that the route from the 'blanket territory' via Cairo was unduly long as compared with the route via Memphis. The complainant asked that through routes be established via Memphis 'with joint rates * * * which shall not exceed the rates contemporaneously charged for the transportation of logs and lumber from the same points to Cairo.' Fifty-three railroads, which participate in this traffic, including those named above, were joined as respondents. Hearings were duly had; much evidence was introduced; and on January 21, 1916, the Commission filed a report in which it found: (a) That the 16-cent rate to Cairo was not unduly low; (b) That the 22-cent rate to Paducah was unreasonable to the extent that it exceeded the existing rate to Cairo; (c) That the existing disparity of rates gave to Cairo an undue preference and advantage over Paducah; (d) That the distances to Paducah via Cairo were so much greater than the distances via Memphis 'that the natural route is via Memphis rather than via Cairo'; (e) That through routes and joint rates not higher than the Cairo rate should be established from the 'blanket territory' to Paducah via either Memphis or Cairo. An appropriate order was entered prohibiting the carriers from continuing to charge the existing rate to Paducah and directing them to establish and thereafter maintain through routes to Paducah via either Memphis or Cairo, and joint rates 'not in excess of the rates at present in effect * * * to Cairo.' Paducah Board of Trade v. Illinois Central Railroad Co., 37 Interst. Com. Com'n R. 719.5 Before the effective date of the order, this bill was filed. It sets forth sixteen reasons for holding the order void; and most of them are repeated in the assignment of errors in this court. One is a charge, left wholly unsupported by evidence, that a 16-cent rate to Paducah is confiscatory. Eight deal with the sufficiency or weight of the evidence before the Commission, of which there was ample to sustain its findings. Some relate to the form of the order, which was clearly appropriate. Few, only, of the errors assigned require discussion here. First: The carriers deny that the Commission has the power to compel them to establish through routes and joint rates. It is admitted that all the complaining carriers were interstate railroads and were engaged otherwise in interstate commerce. It is undisputed that for many years there has been over the lines of two of these carriers a through route to Paducah via Cairo, and over the other a through route via Memphis; and that on all the lines there were through rates. But it is contended that if a carrier establishes a through route and joint rate with its connections, it creates in effect a relation of partnership; that this relation must be entered into, if at all, voluntarily; and that to 'compel a carrier chartered by a state' to enter into such a relation with a carrier chartered in another state violates the Fifth Amendment of the federal Constitution. The complaining carriers having engaged in this particular commerce, it is clear that Congress has power to regulate it. Atlantic Coast Line Case, 219 U. S. 186, 31 Sup. Ct. 164, 55 L. Ed. 167, 31 L. R. A. (N. S.) 7. No reason appears why the regulation might not take the form of compelling the substitution of a joint rate for a through rate made by a combination of local rates or by a combination of a local rate with a joint rate to an intermediate point. Cincinnati, New Orleans & Texas Railway v. Interstate Commerce Commission, 162 U. S. 184, 16 Sup. Ct. 700, 40 L. Ed. 935. So far as the order relates to the existing routes via Cairo and Memphis respectively it did no more than this: It substituted for the through rate of 2i cents (made up on two of the lines of a combination of a joint rate or local rate of 16 cents to Cairo with a local rate on the Illinois Central of 6 cents from Cairo to Paducah), a joint rate of 16 cents from the 'blanket territory' to Paducah; thus reducing the existing through rate. The carrier connecting at Cairo (the Illinois Central) and all but one of the carriers connecting with these complainants in the 'blanket territory,' acquiesced in the order establishing this joint rate. The Illinois Central's share of the 22-cent rate was its local rate of 6 cents. If these complaining carriers cannot reach satisfactory agreements with the Illinois Central as to what its share of the 16-cent rate should be, they may, under section 15 of the Act to Regulate Commerce (Comp. St. 1916, § 8583), apply to the Commission for an appropriate order. In respect to the Rock Island the situation is similar. The order entered does not require any complaining carriers to substitute the route via Memphis for that via Cairo; nor does it require any to establish an additional route via Memphis. Carriers are left free to furnish the through transportation either via Cairo or via Memphis. The order merely compels a through route and a joint rate of 16 cents to Paducah. If they elect to continue existing through route via Cairo, the order operates merely to introduce reduced joint rates. If they elect to discontinue the through routes via Cairo, the order operates to establish through routes and joint rates via Memphis, which the findings of the Commission fully justify. That Congress has power to authorize the Commission to enter an order for through routes and joint rates, like that here complained of, has been heretofore assumed.6 No reason is shown for questioning its existence now. The provisions of the Act to Regulate Commerce as amended (1887, c. 104, §§ 1, 12, 15, 24 Stat. 379; 1906, c. 3591, § 4, 34 Stat. 584; 1910, c. 309, § 12, 36 Stat. 539, 552 [Comp. St. 1916, §§ 8563, 8576, 8583]) are also appropriate to confer this authority upon the Commission. And there is no foundation in fact or law for the contention of complainants that the Commission disregarded the provision of section 15, by which it is prohibited from embracing in a through route 'less than the entire length of a' railroad 'unless to do so would make the route unreasonably long.' Whether a carrier engaged solely in intrastate commerce could be compelled by Congress to enter interstate commerce, or even whether a carrier, having entered into some interstate commerce, may be compelled to enter into all, we have no occasion to consider;7 for the complaining carriers had voluntarily entered into the particular class of interstate commerce with Paducah to which alone the order related. Second: Carriers insist also that the order is void on the ground, that since their 'rails do not reach Paducah, they cannot be guilty of discrimination against that city.' They, however, bill traffic via Cairo or Memphis through to Paducah in connection with the Illinois Central, thus reaching Paducah, although not on their own rails. And, thereby, they become effective instruments of discrimination. Localities require protection as much from combinations of connecting carriers as from single carriers whose 'rails' reach them. Clearly the power of Congress and of the Commission to prevent interstate carriers from practicing discrimination against a particular locality, is not confined to those whose rails enter it. Cincinnati, New Orleans & Texas Pacific Railway v. Interstate Commerce Commission, supra. Furthermore, the order in the case at bar is not merely one to prevent discrimination. Orders to remove discrimination, as commonly framed, do not fix rates. They merely determine the relation of rates, by prohibiting the carrier from charging more for carriage to one locality than under similar conditions to another; and they usually leave the carriers free to remove the discrimination either by raising the lower rate or by lowering the higher rate or by doing both. American Express Co. v. Caldwell, 244 U. S. 617, 624, 37 Sup. Ct. 656, 61 L. Ed. 1352. The order here complained of gives the carriers no such option. It directs that the rates to Paducah shall be 'not in excess of the rates at present in effect from the same points or groups to Cairo, Ill.' In other words, the Commission having found the 22-cent rate unduly high, reduces it to 16 cents by establishing joint through rates. The injury resulting from discrimination was doubtless the reason which induced the Paducah Board of Trade to institute the proceedings; and the Commission may have considered the existence of the lower rate to Cairo persuasive evidence that the 22-cent rate to Paducah was unreasonably high and the resulting discrimination strong reason for establishing the 16-cent joint rate. But the order is strictly one under section 15 of the Act to Regulate Commerce to reduce existing through rates by establishing joint rates or, in the alternative, to establish new through routes with joint rates. It is not primarily an order to remove discrimination in violation of section 3. Decree affirmed.

242.US.595

The Court of Private Land Claims derived all of its powers from the Act of March 3, 1891, c. 539, 26 Stat. 854. Under that act the Court of Private Land Claims had no jurisdiction in confirming a grant and supervising its survey to extend the confirmation and boundaries over land included in another grant confirmed by Congress and patented before the passage of the act, or to alter the boundaries of such other grant as so confirmed and as described in the patent. So held, where both grants were complete and perfect before the Mexican cession, and the grant confirmed by Congress was senior in time of grant. Such jurisdiction could not be conferred on the Court of Private Land Claims by consent of the owners of the grant confirmed by Congress. 20 N. Mex. 145, affirmed. THE case is stated in the opinion.

This is an action in ejectment to recover the area in conflict between two land grants in New Mexico respectively known as the La Joya and the Belen, the plaintiff being the owner of the former and the defendant of the latter. The defendant prevailed and the judgment was affirmed. 20 N. M. 145, 146 Pac. 959. The facts are these: Both grants were complete and perfect at the time of the Mexican cession and both were subsequently confirmed, the Belen in 1858 by an act of Congress (chap. 5, 11 Stat. at L. 374) and the La Joya in 1893 by a decree of the court of private land claims under the Act of March 3, 1891, chap. 539, 26 Stat. at L. 854. The Belen was the older grant and was patented in 1871, long before the proceeding for the confirmation of the La Joya grant was begun. Shortly after the decree confirming it was rendered, the La Joya grant was surveyed preparatory to issuing a patent for it. Objections to the survey were made by two persons interested in the Belen grant, and the survey, with the objections, was laid before the court of private land claims, as was required by the Act of 1891. The objections were to the effect that the survey erroneously placed the northern boundary of the La Joya grant within the Belen grant, and thereby wrongly brought the two largely in conflict. After a hearing the court found the objections well grounded, ordered a resurvey of the La Joya grant, and particularly designated what should be deemed its northern boundary. A resurvey conforming to that direction received the court's approval, and a patent for that grant was then issued. While the resurvey greatly reduced the area in conflict, it still left the northern boundary of the La Joya grant within the Belen grant, and a conflict of about 11,000 acres remained. Without questioning the superiority which otherwise would result from the seniority of the Belen grant, the plaintiff insisted that the action of the court of private land claims in directing what should be deemed the northern boundary of the La Joya grant, and in approving the resurvey wherein that direction was followed, amounted to an adjudication of the true location of the common boundary between the grants, and was conclusive upon the owners of the Belen grant. But the state courts held the contention untenable in view of the provisions of the Act of 1891, and that ruling is the only one called in question here. The court of private land claims derived all of its powers from the Act of 1891, the express purpose of which was to provide for and secure the adjudication of Spanish and Mexican land claims as between the claimants and the United States. The act divided the claims into two principal classes. One class, particularly described in § 6, embraced those which were 'not already complete and perfect,' and the other, particularly described in § 8, embraced those which were 'complete and perfect' at the time of the Mexican cession. The La Joya grant belonged to the latter class, respecting which it was specially provided in § 8 that the court's confirmation should not include any land 'that shall have been disposed of by the United States,' nor have 'any effect other or further than as a release of all claims of title by the United States,' and that 'no private right of any person as between himself and other claimants or persons' should be 'in any manner affected thereby.' And in § 13 it was generally provided in respect of both classes of claims that all the proceedings in the court should be conducted and decided subject to certain enumerated restrictions, among which were the following: 'Fourth. No claim shall be allowed for any land the right to which has hitherto been lawfully acted upon and decided by Congress, or under its authority. Fifth. No proceeding, decree, or act under this act shall conclude or affect the private rights of persons as between each other, all of which rights shall be reserved and saved to the same effect as if this act had not been passed; but the proceedings, decrees, and acts herein provided for shall be conclusive of all rights as between the United States and all persons claiming any interest or right in such lands.' In view of these provisions it is very plain that the court of private land claims was without any power to revise the action of Congress in confirming a particular grant, or to confirm another grant for the same lands or any part of them, or to determine the rights of private persons, as between themselves, to such lands. This court has frequently so held and has pointed out that a decision by that court sustaining a claim for lands, as to which Congress already had confirmed another claim, would not conclude anyone, but would be void, because in excess of the court's power. United States v. Conway, 175 U. S. 60, 44 L. ed. 72, 20 Sup. Ct. Rep. 13; Ainsa v. New Mexico & A. R. Co. 175 U. S. 76, 90, 44 L. ed. 78, 84, 20 Sup. Ct. Rep. 28; Las Animas Land Grant Co. v. United States, 179 U. S. 201, 205, 206, 45 L. ed. 153-155, 21 Sup. Ct. Rep. 92: United States v. Baca, 184 U. S. 653, 659, 46 L. ed. 733, 735, 22 Sup. Ct. Rep. 541. In the last case it was said: 'The manifest intent of Congress appears to have been that with any land, of the right to which Congress, in the exercise of its lawful discretion, had itself assumed the decision, the court of private land claims should have nothing to do. The whole jurisdiction conferred upon that court is to confirm or reject claims presented to it, coming within the act. All the powers conferred upon it are incident to the exercise of that jurisdiction. When it has no jurisdiction to confirm or reject, it has no authority to inquire into or pass upon the case, beyond the decision of the question of jurisdiction. The peremptory declaration of Congress, that 'no claim shall be allowed for any land, the right to which has hitherto been lawfully acted upon and decided by Congress,' necessarily prohibits the court from passing upon the merits of any such claim.' In confirming the La Joya grant and supervising its survey the court proceeded in evident contravention of that prohibition, for it extended the confirmation and survey to about 11,000 acres of lands within the Belen grant which had been confirmed by Congress and patented long before the Act of 1891 was passed. In this respect, therefore, the court overstepped its jurisdiction and its action was void. As making for a different conclusion the plaintiff contends, first, that, consistently with the limitations imposed, it was quite admissible for the court to determine and establish the common boundary between the two grants, and, second, that, by protesting against the original survey, the owners of the Belen grant invited the court to act in the matter, and therefore were bound by its decision. But neither contention can be sustained. The court of private land claims was bound to respect the Belen grant as confirmed by Congress and described in the patent. It was not given any power to reduce the area of that grant, or to make any decisions respecting its boundaries that would affect private rights in the grant. On the contrary, it was prohibited from doing so. And, of course, the owners of the grant could not, by any act or consent of theirs, enlarge the power of the court as defined in the act creating it. It follows that the state courts rightly refused to regard the action of the court of private land claims as in any way conclusive of the rights of the owners of the Belen grant in the area in conflict. Whether the persons who appeared in the La Joya proceeding and objected to the original survey were authorized to represent or speak for all who were interested in the Belen grant seems to have been a disputed question, but as its decision would not affect the result here, it requires no further notice. Judgment affirmed.

244.US.412

Opinion of the Court. 244 U. S.

Upon the ground that the American Locomotive Company, a corporation created under the laws of New York, was carrying on business in the state of New Hampshire and amenable to the jurisdiction of the courts of that state, the petitioner, the Park Square Automobile Station, a Maine corporation, commenced its suit for breach of contract against the American Locomotive Company in a New Hampshire state court. In such court, after service upon it, the Locomotive Company prayed a removal of the cause, not to the district court of the United States for the district of New Hampshire, but to the district court of the United States for the southern district of New York, and its prayer to this effect was denied by the state court. Some time thereafter the prayer for removal was renewed, modified, however, by asking that the removal be ordered to the district court of the United States for the northern district of New York on the ground that the corporation was an inhabitant of that district and had its principal place of business there. This request being also denied, the Locomotive Company, executing a bond for removal, filed the record in the district court of the United States for the northern district of New York. The Automobile Company thereupon moved to remand, not on the ground that the case was not a removable one, but because it was solely entitled to be removed to the proper district; that is, from the state court in New Hampshire to the United States district court of that state. This motion having been overruled (222 Fed. 979), the case was brought directly here upon the theory that the alleged error resulting from the refusal to remand was susceptible of being reviewed although no final judgment had been entered in the cause. At this term the writ of error taken for the purpose stated was dismissed because there was no final judgment (244 U. S. 633, 61 L. ed. ——, 37 Sup. Ct. Rep. 481), and thereupon, on petition to that effect, a rule to show cause why a mandamus should not be granted, directing the district court to reverse its ruling refusing to remand the cause, was allowed, and on a return of the district court to that rule the subject is before us for consideration. The contention of the petitioner is that manifest error was committed in taking jurisdiction on a removal of the cause from the state court of New Hampshire since the proper court, upon the assumption that the case was removable, was the district court of the United States for the district of New Hampshire, and that court alone. At the threshold, however, we are met by the suggestion that, conceding, for the sake of the argument, that the lower court erred in refusing to remand and in taking jurisdiction, as such error was susceptible of being reviewed by the regular methods provided by the statute, that is, by certificate and direct review on the question of jurisdiction alone after final judgment, or by review of the circuit court of appeals where allowed if the whole case were taken to that court, or by the exercise by this court of its power to issue a writ of certiorari in a proper case, there is hence no power to substitute the writ of mandamus as a means of reviewing for the express remedial processes created by the statute for such purpose. It is not disputable that the proposition thus relied upon is well founded and hence absolutely debars us from reviewing by mandamus the action of the court below complained of, whatever may be our conviction as to its clear error. (Ex parte Harding, 219 U. S. 363, 55 L. ed. 252, 37 L.R.A.(N.S.) 392, 31 Sup. Ct. Rep. 324; Ex parte Roe, 234 U. S. 70, 58 L. ed. 1217, 34 Sup. Ct. Rep. 722), unless it be that by some exception the case is taken out of the reach of the control of the cases referred to. It is insisted that this case is such an exceptional one, first, because of the clearly erroneous construction of the statute upon which the court below based its assertion of jurisdiction and the strange result which arose from that construction, that is, the removal of a case pending in the state court of New Hampshire to a district court in the state of New York, and second, because of the grave wrong which would result from forcing the petitioner to try its case in the state of New York, at great inconvenience and expense, as a preliminary to securing a review of the question of jurisdiction,—an expense and inconvenience which would be saved if, by review, now, by means of a writ of mandamus, the removal statutes be given their natural meaning, and thus the wrong and confusion arising from their misconstruction would be avoided. And in support of the exceptions thus asserted, reliance is placed on expressions contained in the opinion in Ex parte Harding, 219 U. S. 363, 373, 55 L. ed. 252, 255, 37 L.R.A.(N.S.) 392, 31 Sup. Ct. Rep. 324, by which it is contended they are sustained. But conceding that the error which the proposition attributes to the ruling below is manifest, the conclusion drawn from the opinion in Ex parte Harding is obviously a mistaken one. Indisputably in that case the court was called upon to consider in a twofold aspect some contrariety of views manifested in decided cases, first, as to the power to correct an unwarranted exercise of jurisdiction by way of proceedings in mandamus in a case where no method of review of such question was otherwise provided, and second, the right to resort to mandamus in disregard of and as a substitute for express and positive statutory regulations pointing out the method by which such review could be had. Bearing this in mind, it is plain that the language relied upon in Ex parte Harding related to the first class and established the doctrine that even in a case where no means of review were provided by statute, the writ of mandamus could be used only in exceptional cases calling for an exceptional remedy. But this did not in the slightest degree qualify or limit the comprehensive rule which was established as to the second class, to the effect that where statutory methods of review of questions of jurisdiction were provided for, they could not be disregarded, and therefore that there was no power to override the statutory provisions by resorting to the writ of mandamus. And the whole subject will be made very clear by a consideration of the opinion in Ex parte Roe, supra, which gave effect to and applied the rule laid down in Ex parte Harding. Indeed, when the situation dealt with in Ex parte Harding is taken into view, it becomes apparent that the confusion and conflict which had imperceptibly arisen from obscuring the lines dividing the statutory methods for review of questions of jurisdiction, and the effort to review them by the writ of mandamus, which was corrected by the decision in that case, would be recreated by now permitting a resort to the writ of mandamus in this case. And this also makes clear that, however grave may be the inconvenience arising in this particular case from the construction which the court gave to the statute, and upon which it based its assertion of jurisdiction, greater inconvenience in many other cases would necessarily come from now departing from the established rule and reviewing the action of the court by resort to a writ of mandamus instead of leaving the correction of the error to the orderly methods of review established by law. Rule discharged.

242.US.503

Corporations organized under the laws of Minnesota, not for charitable or eleemosynary purposes but for the pecuniary advantage of their shareholders, held, "organized for profit" within the meaning of the Corporation Tax Law of August 5,.1909. The decision whether a corporation is carrying on business within the meaning of the Corporation Tax Law must depend in each instance upon the particular facts before the court; no particular amount of business is required. A corporation which has not reduced its activities to owning and holding property -and the distribution of its avails, but maintains its organization for continued efforts in pursuit of profit and for such activities as are therein essential, is carrying on business within the meaning of the act. Respondent corporations, besides receiving and distributing among their shareholders the royalties from a number of outstanding long term "mining leases," employed another company to inspect the lessees' operations and keep them to their contracts, made some mining explorations at expense on other parts of their properties, sold or leased other parcels and sold some timber, held, that they were carrying on business within the meaning of the Corporation Tax Law. Qucere: Whether this court, in determining whether royalties under mining leases are income subject to the Corporation Tax Law, is constrained t6 follow the decisions of the highest court of the State in which the leased property is situate holding that such royalties are rents and profits. Th. "mining leases" involved in these cases, were not equivalent to sales of property; and the moneys paid by the lessees to the respondents were not converted capital, but rents or royalties, and as such were income, proper to be included in measuring their taxes under the Corporation Tax Law. Stratton's Independence v. Howbert, 231 U. S. 399; Stanton v. Baltic Mining Co., 240 U. S. 103. The depletion of a mine resulting from the removal of ore in the course of its operation is not a "depreciation of property" for which a deduction may be made under the Corporation Tax Law. 219 Fed. Rep. 31, reversed.

These three cases were argued and submitted together and involve practically the same facts. Suits were brought by the corporations named in the United States district court for the district of Minnesota against the collector of internal revenue, to recover certain taxes, paid under protest, assessed under the Corporation Tax Law of 1909 (36 Stat. at L. 11, 112, chap. 6), for the years 1909, 1910, and 1911. The judgments in the district court were for the respondents (207 Fed. 423), which judgments were affirmed in the circuit court of appeals (134 C. C. A. 649, 219 Fed. 31). In 1890, John S. Pillsbury, George A. Pillsbury, and Charles A. Pillsbury, doing business together as John S. Pillsbury & Company, were the owners of large tracts of lands in northern Minnesota, which had been acquired for the timber and from which the timber had been cut, being valuable after such severance of the timber for the mineral deposits contained therein. In the year named, the Pillsburys entered into an arrangement with John M. Longyear and Russell M. Bennett, authorizing the latter two to explore the lands for iron deposits. In 1892, Longyear and Bennett having discovered valuable deposits of iron ore, a half interest in something over 10,000 acres of the lands was conveyed to them, the lands thereafter being owned by the Pillsburys, John, George, and Charles, each an undivided sixth, and John M. Longyear and Russell M. Bennett each an undivided fourth. In the year 1901, the Pillsburys having died, these corporations were formed under the laws of Minnesota. In 1906, the ownership of these leased lands was vested in the three corporations named as respondents in the proceedings. As originally organized, the nature of the business was stated to be 'the buying, owning, exploring, and developing, leasing, improving, selling, and dealing in lands, tenements, and hereditaments, and the doing of all things incidental to the things above specified.' In December, 1909, the articles of incorporation were amended to read as follows: 'The general purpose of the corporation is to unite in one ownership the undivided, fractional interests of its various stockholders in lands, tenements, and hereditaments, and to own such property, and, for the convenience of its stockholders, to receive and distribute to them the proceeds of any disposition of such property, at such times, in such amounts, and in such manner as the board of directors may determine.' All of the mining leases hereinafter mentioned, with the exception of a contract with the Van Buren Mining Company, were executed before the organization of the corporations. Each of these instruments provided that the owners of the property demised to the lessees, exclusively, all the lands covered by the descriptions, for the purpose of exploring for, mining and removing, the merchantable iron ore which might be found therein for and during the period named, usually fifty years. The lessees were given exclusive right to occupy and control the demised premises and to erect all necessary buildings, structures, and improvements thereon. Right was reserved to the lessors to enter for the purpose of measuring the amount of ore mined and removed and making observations of the operations in the mines. The lessees agreed to pay, in most cases, 25 cents per ton for all ore mined and removed, and to make such payments monthly for ore mined and shipped during the preceding month. The lessees agreed to mine and ship a specified quantity of ore in each year, and, in default of this, to pay the lessors for the minimum amount specified, and take credit therefor and apply such sums upon ore mined and shipped thereafter in excess of such minimum. The lessees were to pay the taxes and to keep the property free from encumbrances and liens. Right was reserved to terminate the contract upon the failure of the lessees to comply with the terms thereof. The form of the leases is shown in exhibits 15 and 16, which were not in the printed record, owing to their length, but copies of which, pursuant to stipulation, have been sent to this court. An examination of exhibit 16 shows that the lessees had the right to terminate and surrender the lease by giving the lessors, or those having their estate in the premises, sixty days' written notice, and executing sufficient conveyances releasing all interest and right of the lessees in the premises with any improvements thereon, and surrendering the same in good order and condition, etc., and that thereupon all liability of the lessees to taxes subsequently assessed on the demised premises or for rent thereof thereafter to accrue, or royalty on ores therefrom, except on account of ores removed, should cease and determine; the lessees to be liable for all ores removed from the premises not theretofore paid for, and to pay for the premises rent or royalty for the year in which termination should be made, or the portion thereof which should have expired, at the rate of $12,500 per annum. Since their organization the corporations have disposed of certain lands and have also disposed of the stumpage on some timber lands. Certain parcels were rented and leased, and a village was allowed to use part of the land for schoolhouse purposes, as well as another part for a public park. To insure the proper carrying on of the mining operations, the companies employed another corporation, engaged in engineering and inspection of ore properties, to provide supervision and inspection of the work upon the respondents' properties, for which the inspecting company was paid from month to month, as statements were rendered. The companies were assessed upon their gross income, being the entire receipts of the companies from royalties on the leases collected in the years 1909, 1910, and 1911, and some sums received from the sales of lots, lands, and stumpage, from which expenses and taxes were deducted, but no deduction was made upon account of the depletion of the ore in the properties, or on account of such sales. The brief for the respondents states that these cases present for consideration four questions, which are: '1. Are the respondents corporations organized for profit? '2. Were the respondents carrying on or doing business during the years 1909, 1910, 1911? '3. Were moneys received by the respondents during those years in payment for iron ore, under the contracts covering their mineral lands, gross income, or did they represent, in whole or in part, the conversion of the investment of the corporations from ore into money? '4. It such moneys were gross income, are the respondents entitled to make any deduction therefrom on account of the depletion of their capital investment?' As to the first question, whether these corporations were organized for profit, there can be no difficulty. They certainly do not come within the exceptional character of charitable or eleemosynary organizations excepted from the operation of the act. We need not dwell upon the obvious purpose of these corporations, organized under the provisions of the Minnesota statute concerning companies organized for profit, to pursue gain and to profit because of their operations. As to the second question: Were the respondents carrying on business, within the meaning of the Corporation Tax Act? This question was dealt with by this court in the first of the Corporation Tax Cases, Flint v. Stone Tracy Co. 220 U. S. 107, 55 L. ed. 389, 31 Sup. Ct. Rep. 342, Ann. Cas. 1912B, 1312. As the tax was there held to be assessed upon the privilege of doing business in a corporate capacity, it became necessary to inquire what it was to do business, and this court adopted with approval the definition, judicially approved in other cases, which included within the comprehensive term 'business' 'that which occupies the time, attention, and labor of men for the purpose of a livelihood or profit.' In that case a number of realty and mining companies were dealt with, and the Park Realty Company, organized to deal in real estate, and engaged at the time in the management and leasing of a certain hotel, was held to be engaged in business. It was also held that the Clark Iron Company, organized under the laws of Minnesota, and owning and leasing ore lands for the purpose of carrying on mining operations, and receiving a royalty depending upon the quantity of ore mined, was engaged in business. At the same time, and decided with the main corporation tax case, this court held, in the case of Zonne v. Minneapolis Syndicate, 220 U. S. 187, 55 L. ed. 428, 31 Sup. Ct. Rep. 361, that a corporation which owned a piece of real estate which had been leased for one hundred and thirty years, at an annual rental of $61,000, and which had amended its articles of incorporation so as to limit its purposes to holding the title to the property mentioned, and, for the convenience of its stockholders, to receiving and distributing from time to time the rentals that accrued under the lease and the proceeds of any disposition of the land, was not engaged in doing business within the meaning of the act, by reason of the fact that the corporation had practically gone out of business and had disqualified itself from any activity in respect thereto. The act next came before this court in the case of McCoach v. Minehill & S. H. R. Co. 228 U. S. 295, 57 L. ed. 842, 33 Sup. Ct. Rep. 419, in which it was held, distingushing the case of the Park Realty Company, supra, and applying the case of Zonne v. Minneapolis Syndicate, supra, to the facts before the court, that a corporation which had leased all its property to another, and was doing only what was necessary to receive and distribute the income therefrom among stockholders, was not doing business within the meaning of the act. In United States v. Emery, B. T. Realty Co. 237 U. S. 28, 59 L. ed. 825, 35 Sup. Ct. Rep. 499, this court held that a corporation which merely kept up its organization, distributing rent received from a single lessee, was not doing business within the meaning of the act. It is evident, from what this court has said in dealing with the former cases, that the decision in each instance must depend upon the particular facts before the court. The fair test to be derived from a consideration of all of them is between a corporation which has reduced its activities to the owning and holding of property and the distribution of its avails, and doing only the acts necessary to continue that status, and one which is still active and is maintaining its organization for the purpose of continued efforts in the pursuit of profit and gain, and such activities as are essential to those purposes. From the facts clearly established in these cases, we think these corporations were doing business, within the meaning of the act. They were organized for the purposes stated, and their activities included something more than the mere holding of property and the distribution of the receipts thereof. As was found by the district court, the evidence shows that these three companies sold, during each of the years named, quantities of real estate, and the same were not small. They sold stumpage from some of the properties which had been burned over, leased certain properties in the village of Hibbing, and granted leases to squatters. One of the companies made explorations and incurred expenses in the matter of test pits. They employed another company to see that the mining operations were properly carried on, and that the lessees lived up to the engagements of their contracts. 'All these things indicate,' said the learned district judge, 'the doing of and engaging in business. It [the corporation] was doing the business of handling a large property, selling lots, and seeing that the lessees lived up to their contracts. If that is not engaging in business, I do not know what is.' We agree that it certainly was doing business, and, as the Corporation Tax Act requires no particular amount of business in order to bring a company within its terms, we think these activities brought the corporations in question within that line of decisions in this court which have held such corporations were doing business in a corporate capacity within the meaning of the law. Next, is it true, as contended by the government, that the payments for ore mined, under the contracts covering the mineral lands, are income, within the meaning of the act; or do they represent the conversion of the investment of the corporations from ore into money? The nature of these mining leases has been the subject of some difference of opinion in the courts. The circuit court of appeals in this case took the view announced in some of the earlier cases, notably in Pennsylvania, that the leases were such in name only, and were in fact conveyances of the ore in place as part of the realty, and that the so-called royalties merely represented payments for so much of the land, and were in no just sense income, but mere conversions of the capital. These lands are situated in Minnesota, and this character of lease has long been familiar in that state, as a means of securing the development and operation of mining properties. Some years before the passage of the Corporation Tax Act, the supreme court of Minnesota had dealt with the character of such instruments. In the case of State v. Evans, 99 Minn. 220, 108 N. W. 958, 9 Ann. Cas. 520, that court, after a review of the English and American cases, said (page 227): 'The propriety of a lease for the purpose of developing and working mines is recognized by all of the cases, and the rule established by the great weight of authority that such leases do not constitute a sale of any part of the land and, further, that iron or other materials derived from the usual operation of open mines or quarries constitute the rents and profits of the land, and belong to the tenant for life or years, and to the mortgagor after sale on foreclosure, and before the expiration of the time for redemption. The rule, however, has no application to unopened mines, in the absence of a contract, express or implied, for opening and leasing them.' The same doctrine was held in Boeing v. Owsley, 122 Minn. 190, 142 N. W. 129, and in the late case of State v. Royal Mineral Asso. 132 Minn. 232, 156 N. W. 128, in which the decision of the circuit court of appeals in this case, that such leases were merely conveyances of the ore in place, was brought to the attention of the court, and that conclusion expressly denied, the supreme court of Minnesota saying: 'We adhere to the doctrine of the Evans and Boeing Cases, and hold these instruments leases. It follows logically that the amounts stipulated to be paid by the lessees are rents, and they were expressly held by this court to be rents in the Boeing Case, supra,—a case which involved a construction of the very leases now before the court. They are 'the compensation which the occupier pays the landlord for that species of occupation which the contract between them allows.' Lord Dennison, in Reg. v. Westbrook, 10 Q. B. 178, 205, 2 New Sess. Cas. 599, 16 L. J. Mag. Cas. N. S. 87, 11 Jur. 515, 22 Eng. Rul. Cas. 623.' These conclusions of the supreme court of Minnesota are not only made concerning contracts in that state, such as are here involved, but are supported by many authorities.1 Ordinarily, and as between private parties, there is no question of the duty of the Federal court to follow these decisions of the Minnesota supreme court, as a rule of real property long established by state decisions. Kuhn v. Fairmont Coal Co. 215 U. S. 349, 360, 54 L. ed. 228, 234, 30 Sup. Ct. Rep. 140. Whether, in considering this Federal statute, we should be constrained to follow the established law of the state, as is contended by the government, we do not need to determine. The decisive question in this case is whether the payments made as so-called royalties amount to income so as to bring such payments within the scope of the Corporation Tax Act of 1909. The prior decisions of this court in Stratton's Independence v. Howbert, 231 U. S. 399, 58 L. ed. 285, 34 Sup. Ct. Rep. 136, and Stanton v. Baltic Min. Co. 240 U. S. 103, 60 L. ed. 546, 36 Sup. Ct. Rep. 278, in which the Stratton Case was followed and approved, are decisive of this question. In the Stratton Case, certain questions were certified to this court from the circuit court of appeals for the eighth circuit. The case was tried upon an agreed statement of facts, from which it appeared, 'as to the year 1909, that the company extracted from its lands during the year certain ores bearing gold and other precious metals, which were sold by it for sums largely in excess of the cost of mining, extracting, and marketing the same; that the gross sales amounted to $284,682.85, the cost of extracting, mining, and marketing amounted to $190,939.42, and 'the value of said ores so extracted in the year 1909, when in place in said mine and before extraction thereof, was $93,743.43.' With respect to the operations of the company for the year 1910, the agreed facts were practically the same, except as to dates and amounts. It does not appear that the so-called 'value of the ore in place,' or any other sum, was actually charged off upon the books of the company as depreciation.' The circuit court of appeals certified three questions to this court: 'I. Does § 38 of the act of Congress, entitled, 'An Act to Provide Revenue, Equalize Duties, and Encourage the Industries of the United States, and for Other Purposes,' approved August 5, 1909 (36 Stat. at L. p. 11, chap. 6), apply to mining corporations? II. Are the proceeds of ores mined by a corporation from its own premises income within the meaning of the aforementioned act of Congress? III. If the proceeds from ore sales are to be treated as income, is such a corporation entitled to deduct the value of such ore in place and before it is mined as depreciation within the meaning of § 38 of said act of Congress?' This court answered the first and second questions certified in the affirmative, and the third question in the negative. In that case, as here, it was contended that the proceeds of the mining operations resulting from a conversion of the capital represented by real estate into capital represented by cash are in no true sense income. As to this contention, this court said: 'The peculiar character of mining property is sufficiently obvious. Prior to development it may present to the naked eye a mere tract of land with barren surface, and of no practical value except for what may be found beneath. Then follow excavation, discovery, development, extraction of ores, resulting eventually, if the process be thorough, in the complete exhaustion of the mineral contents so far as they are worth removing. Theoretically, and according to the argument, the entire value of the mine, as ultimately developed, existed from the beginning. Practically, however, and from the commercial standpoint, the value—that is, the exchangeable or market value—depends upon different considerations. Beginning from little, when the existence, character, and extent of the ore deposits are problematical, it may increase steadily or rapidly so long as discovery and development outrun depletion, and the wiping out of the value by the practical exhaustion of the mine may be deferred for a long term of years. While not ignoring the importance of such considerations, we do not think they afford the sole test for determining the legislative intent.' This court held that it was not correct to say that a mining corporation was not engaged in business, but was merely occupied in converting its capital assets from one form to another, and that while a sale outright of a mining property might be fairly described as a conversion of the capital from land into money, the process of mining is, in a sense, equivalent to a manufacturing process, and however the operation shall be described, the transaction is indubitably 'business' within the meaning of the Act of 1909, and the gains derived from it are properly the income from business, derived from capital, from labor, or from both combined. Further, 'as to the alleged inequality of operation between mining corporations and others, it is of course true that the revenues derived from the working of mines result to some extent in the exhaustion of the capital. But the same is true of the earnings of the human brain and hand when unaided by capital, yet such earnings are commonly dealt with in legislation as income. So it may be said of many manufacturing corporations that are clearly subject to the Act of 1909, especially of those that have to do with the production of patented articles; although it may be foretold from the beginning that the manufacture will be profitable only for a limited time, at the end of which the capital value of the plant must be subject to material depletion, the annual gains of such corporations are certainly to be taken as income for the purpose of measuring the amount of the tax.' It is contended that this case is inapplicable, because the facts disclose that the ores were being mined by a corporation upon its own premises. In our view, this makes no difference in the application of the principles upon which the case was decided. We think that the payments made by the lessees to the corporations now before the court were not in substance the proceeds of an outright sale of a mining property, but, in view of the terms of these instruments, were in fact rents or royalties to be paid upon entering into the premises and discovering, developing, and removing the mineral resources thereof, and as such must be held now, as then, to come fairly within the term 'income' as intended to be reached and taxed under the terms of the Corporation Tax Act. In Stanton v. Baltic Min. Co. 240 U. S. 103, 60 L. ed. 546, 36 Sup. Ct. Rep. 278, the Income Tax Law of 1913 [38 Stat. at L. 166, chap. 16, Comp. Stat. 1913, § 6319] was before the court, and it was contended that the clause in that act, limiting the mines to a maximum depreciation allowance of 5 per cent of their annual gross receipts or output of ore deposits, was unconstitutional; or, if that provision was inseparable from the rest of the act, the entire Income Tax Law, as applied to mining companies, was unconstitutional. Replying to the argument advanced by the mining company in that case, this court said that it rested upon the wholly fallacious assumption that, looked at from the point of view of substance, a tax on the product of a mine was necessarily a tax upon the property because of its ownership unless adequate allowance be made for the exhaustion of the ore body resulting from the working of the mine; and, further: 'We say wholly fallacious assumption because independently of the effect of the operation of the 16th Amendment, it was settled in Stratton's Independence v. Howbert, 231 U. S. 399, 58 L. ed. 285, 34 Sup. Ct. Rep. 136, that such a tax is not a tax upon property as such because of its ownership, but a true excise levied on the results of the business of carrying on mining operations.' We think it results from the principles announced in these decisions that in such cases as are now under consideration, the corporation being within the meaning of the act organized for profit and doing business, it is subject to the tax upon its income derived from the royalties under these leases. This brings us to the fourth and last question in the case, as to whether allowance should be made for depreciation on account of the depletion of the property by removing the ores from the mines in question. The contention of respondents in this behalf is, that if the court shall find that the moneys received by them under their mining contracts can be deemed gross income, in whole or in part, they are entitled to deduct therefrom, as a reasonable allowance for depreciation, the full amount of the money so received, for the reason that they represent a mere transmutation of capital assets, being, in legal effect, the selling price of their rights in the mineral deposits on or before January 1, 1909, and which, by virtue of the mining contracts then outstanding, had been previously sold for the exact amounts of such receipts. The statement of facts in the case of Stratton's Independence, supra, as the court states on pages 418 and 419, developed from the certificate, was: 'From that certificate it appears that the case was submitted to the trial court and a verdict directed upon an agreed statement of facts, and in that statement the gross proceeds of the sale of the ores during the year were diminished by the moneys expended in extracting, mining, and marketing the ores, and the precise difference was taken to be the value of the ores when in place in the mine. . . . 'It is clear that a definition of the 'value of the ore in place' has been intentionally adopted that excludes all allowances of profit upon the process of mining, and attributes the entire profit upon the mining operations to the mine itself. In short, the parties propose to estimate the depreciation of a mining property attributable to the extraction of ores according to principles that would be applicable if the ores had been removed by a trespasser.' It is true that in the case of Stratton's Independence, supra, the decision upon the question of depreciation was predicated upon the facts stated in the certificate presented to the court, and it was said, at page 422: 'It would, therefore, be improper for us at this time to enter into the question whether the clause, 'a reasonable allowance for depreciation of property, if any,' calls for an allowance on that account in making up the tax, where no depreciation is charged in practical bookkeeping; or the question whether depreciation, when allowable, may properly be based upon the depletion of the ore supply estimated otherwise than in the mode shown by the agreed statement of facts herein; for to do this would be to attribute a different meaning to the term 'value of the ore in place' than the parties have put upon it, and to instruct the circuit court of appeals respecting a question about which instruction has not been requested and concerning which it does not even appear that any issue is depending before that court.' It therefore follows that we have the question of depreciation in this case presented under somewhat different circumstances than were outlined in the opinion in the case of Stratton's Independence. The statute permits deduction of 'all losses sustained within the year . . . including a reasonable allowance for depreciation of property.' What was here meant by 'depreciation of property?' We think Congress used the expression in its ordinary and usual sense as understood by business men. It is common knowledge that business concerns usually keep a depreciation account, in which is charged off the annual losses for wear and tear, and obsolescence of structures, machinery, and personalty in use in the business. We do not think Congress intended to cover the necessary depreciation of a mine by exhaustion of the ores in determining the income to be assessed under the statute by including such exhaustion within the allowance made for depreciation. It would be a strained use of the term 'depreciation' to say that, where ore is taken from a mine in the operation of the property, depreciation, as generally understood in business circles, follows. True, the value of the mine is lessened from the partial exhaustion of the property, and, owing to its peculiar character, cannot be replaced. But in no accurate sense can such exhaustion of the body of the ore be deemed depreciation. It is equally true that there seems to be a hardship in taxing such receipts as income, without some deduction arising from the fact that the mining property is being continually reduced by the removal of the minerals. But such consideration will not justify this court in attributing to depreciation a sense which we do not believe Congress intended to give to it in the Act of 1909. It may be admitted that a fair argument arises from equitable considerations that, owing to the nature of mining property, an allowance in assessing taxes upon income should be made for the removal of the ore deposits from time to time. Congress recognized this fact in passing the income tax section of the Tariff Act of 1913 (§ II. 38 Stat. at L. 166, 167, chap. 16, Comp. Stat. 1913, §§ 6319-6322), when it permitted 'a reasonable allowance for the exhaustion, wear and tear of property arising out of its use or employment in the business, not to exceed, in the case of mines, 5 per centum of the gross value at the mine of the output for the year for which the computation is made;' and in the Income Tax Law of September 8, 1916 (1915-1916 Stat. 756, 769), a reasonable allowance is made in the cases of mines for depletion thereof, 'not to exceed the market value in the mine of the product thereof which has been mined and sold during the year for which the return and computation are made.' These provisions were not in the Act of 1909, and, as we have said we think that Congress, in that act, used the term 'depreciation' in its ordinary and usual significance. We therefore reach the conclusion that no allowance can be made of the character contended for as an item of depreciation. No contention is made in the brief for an allowance because of sales of stumpage, lots, and lands belonging to the companies, as an exhaustion of the capital assets, and evidently the case was brought for the purpose of testing the right of the companies to deduct the royalties agreed to be paid to them upon the removal of the minerals from the lands from the sums for which they were severally assessed. For the reasons stated, we think the Circuit Court of Appeals and the District Court erred in the judgments rendered, and the same will be reversed and the cases remanded to the District Court for further proceedings, if any are sought, upon claim of right to deduct the value of the lands, lots, and stumpage sold from the assessments made. Judgments reversed. Mr. Justice McReynolds took no part in the consideration and decision of these cases.

243.US.587

Decided on authority of Pennsylvania R. R. Co. v. Olivit Brothers, ante, 574. 88 N. J. L. 235, affirmed.

Action in seven counts praying for damages caused by delay in the delivery of certain watermelons received for shipment and accepted by an initial carrier at certain places in the state of Georgia, to be transported to Jersey City, New Jersey, and transferred in good condition to defendant's line at Edgemoor, Delaware, a point on the route. A violation of the contract of carriage is charged in that the melons were not transported within a reasonable time, by reason of which a large part of them was lost and the rest delivered in a damaged condition. The defenses were denials of the allegations of the complaint, and an averment that the delay in delivery was caused by a strike on the road, for which cause, under the bills of lading issued by the initial carrier pursuant to the Interstate Commerce Act, defendant was exempt from liability for damages. This was one of the defenses in No. 577 [243 U. S. 574, 61 L. ed. 908, 37 Sup. Ct. Rep. 468], with which this case was submitted. Judgment was entered for plaintiff by consent, and that plaintiff's damages be assessed at $1,841.13, 'reserving to defendant the right to reduce said judgment in accordance with its exceptions and objections pertaining to the measure of damages, and without prejudice to defendant to appeal from said judgment, pursuant to law.' The judgment was affirmed by the Court of Errors and Appeals. 88 N. J. Law, 235, 96 Atl. 588. Indeed, it was upon the opinion in the latter case that the Court of Errors and Appeals decided No. 577. On the authority of No. 577 the motion to dismiss which is made is overruled and the judgment is Affirmed.

243.US.114

The rule that concurrent findings of fact by two lower courts will not be disturbed unless clearly wrong is here applied in support of findings of fraud and breach of fiduciary duty resulting in a trust. Defendant, as receiver of a national bank, contracted on its behalf, with the approval of the Comptroller of the Currency, for the purchase .of certain realty, used some of the bank's money in payments on the price, and, under apparent authority from the court, sold and assigned the contract for cash paid the bank. The assignee acted secretly for the defendant in taking the contract, and thereafter assigned it secretly to him as an individual. Defendant resigned as receiver, and subsequently the contract was fully performed and the real property became vested in a corporation whose shares for the most part were issued to the defendant. In a suit brought by his successor to regain the property for the bank, Held: (1) That the transaction was a gross breach of defendant's duty as receiver; (2) That he was estopped to claim that the purchase of the property was beyond the powers of the bank, Case v. Kelly, 133 U. S. 21, distinguished; (3) That delay of the suit for sixteen years after the making of the contract and fourteen years after defendant's resignation as receiver was not laches, in view of the finding that his successors in the receivership had no knowledge or equivalent notice of the fraud. The seven year statute of limitations of Washington, Remington & Ballinger's Ann. Codes and Stats., § 789, does not apply when the claim of title accompanying possession is not made in good faith. 221 Fed. Rep. 322, affirmed.

This is an action by John W. Schofield, as receiver of the Merchants' National Bank of Seattle, Washington, insolvent since 1895, against Charles H. Baker, receiver of the bank from 1895 to 1899, and others, seeking a decree declaring the defendants to be holders of certain real property in Seattle in trust for the plaintiff, and asking a conveyance thereof to the plaintiff. The property in controversy is block 430 of Seattle tide lands, a tract of some 12 acres, and the leasehold of the harbor area lying in front of that block. In conformity with the provisions of the state law, the Merchants' National Bank had, prior to its failure, made application to purchase these lands. After the failure and the appointment of Charles H. Baker, receiver, this application was accepted by the State Board of Land Commissioners, and upon January 12, 1897, a contract was entered into between the state of Washington and the bank, through the receiver, by which the state agreed to sell and the bank to purchase block 430 of Seattle tide lands for $1,488, payable in ten annual instalments, subject to all liens for filling, and all taxes and assessments that might be levied or assessed on the land, and with a forfeiture clause in case the bank should fail to pay any of the amounts, either principal, interest, taxes, or assessments, when the same should become due and for six months thereafter. Permission to make this contract was obtained by the receiver from the Comptroller of the Currency, and thereafter partial payments were made upon the contract. Upon October 6, 1897, by order of the United States circuit court, upon the receiver's petition to that effect, he was authorized to sell at private sale certain doubtful personal assets of the defunct bank, and thereafter, Baker, as receiver, assigned to S. G. Simpson the contract above mentioned for the consideration of $198.30, the transfer being approved by the Commissioner of Public Lands. The assignment authorized the state of Washington to receive from Simpson, or his assigns, the performance of all covenants and agreements specified in the contract to be performed by the bank, and upon such performance to execute to him a patent for such tide land. By virtue of the ownership by Simpson of the contract to purchase tide lands block No. 430, he became entitled, under the laws of the state of Washington, to the preference right to lease certain harbor area adjacent and appurtenant to block No. 430. Upon the purchase by Simpson of the contract to purchase the tide lands, there was issued to him by the state of Washington a certain lease, designated 'harbor lease No. 181,' covering the harbor area appurtenant to the block. In March, 1899, the contract between the bank and the state of Washington for the purchase of block No. 430, together with the harbor lease, was transferred by Simpson to Baker in his personal capacity, the record title continuing in the name of Simpson. On August 11, 1905, Simpson, acting for and on behalf of Baker, assigned the contract for the purchase of block No. 430, together with harbor lease No. 181, to one Norton, the consideration named being $1. This assignment contained the same authorization as to the patent to be issued by the state as was contained in the assignment to Simpson. On October 16, 1905, the state of Washington issued to Norton a patent covering block No. 430, with the exception of a strip of land, 30 feet wide, which had been granted to a railroad company. In August, 1907, there was organized under the laws of the state of Washington the Seattle Water Front Realty Company. Upon incorporation of this company, Norton conveyed to it block No. 430, together with harbor lease No. 181, in payment for the issue of its capital stock of $250,000. About 95 per cent of the stock was issued to Baker, or to others, who held for him. In April, 1899, and a month after receiving the assignment from Simpson, Baker resigned as receiver; whereupon A. W. Frater was appointed receiver. On February 12, 1913, Frater resigned, and the present plaintiff was appointed receiver in his stead, and this suit was immediately begun. Under this state of facts, the district court entered a decree adjudging that the assignment by Baker to Simpson was fraudulent, and was made for the sole use and benefit of Baker, and that the assignment of the contract to the defendant Norton by Simpson, and the conveyance of Norton to the Seattle Water Front Realty Company, were null and void. The decree provided that the Realty Company should execute and deliver to the clerk of the court below, for the benefit of the plaintiff, as receiver, a deed covering its interest in block No. 430 and the assignment of harbor lease No. 181, and the receiver was directed to pay to the clerk of the court, for the Realty Company, the sum of $10,977.13, being the amount of the payment, with interest, made by the defendants to the state of Washington under the contract for the purchase of block No. 430, and upon the harbor lease, and for taxes. 212 Fed. 504. Upon appeal, this decree was affirmed by the circuit court of appeals for the ninth circuit. 136 C. C. A. 320, 221 Fed. 322. Both the district court and the circuit court of appeals found that the sale from Baker to Simpson was only colorable, and that Simpson purchased the property for Baker. Our consideration of the evidence must be governed by the well-settled rule in this court that, when two courts have reached the same conclusion on a question of fact, their finding will not be disturbed unless it is clear that their conclusion was erroneous. Stuart v. Hayden, 169 U. S. 1, 14, 42 L. ed. 639, 643, 18 Sup. Ct. Rep. 274; Baker v. Cummings, 169 U. S. 189, 198, 42 L. ed. 711, 715, 18 Sup. Ct. Rep. 367; Towson v. Moore, 173 U. S. 17, 24, 43 L. ed. 597, 600, 19 Sup. Ct. Rep. 332; Hy-Yu-Tse-Mil-Kin v. Smith, 194 U. S. 401, 412, 48 L. ed. 1039, 1045, 24 Sup. Ct. Rep. 676; Dun v. Lumbermen's Credit Asso. 209 U. S. 20, 23, 52 L. ed. 663, 665, 28 Sup. Ct. Rep. 335, 14 Ann. Cas. 501; Texas & P. R. Co. v. Railroad Commission, 232 U. S. 338, 339, 58 L. ed. 630, 34 Sup. Ct. Rep. 438; Washington Securities Co. v. United States, 234 U. S. 76, 78, 58 L. ed. 1220, 1222, 34 Sup. Ct. Rep. 725; Gilson v. United States, 234 U. S. 380, 383, 58 L. ed. 1361, 1362, 34 Sup. Ct. Rep. 778. The concurrent decisions of the courts upon the establishment of a trust is a question of fact, which will be followed unless shown to be clearly erroneous. Brainard v. Buck, 184 U. S. 99, 46 L. ed. 449, 22 Sup. Ct. Rep. 458. The various defenses urged in the court below and involved in the points argued in this court for the appellants must be considered, in view of this finding of fact as to the nature of the transfer of Baker, as receiver, to Simpson. That the secret arrangement between Baker and Simpson was fraudulent and a gross breach of the receiver's duty is too plain to require detailed consideration. Michoud v. Girod, 4 How. 503, 555, 11 L. ed. 1076, 1099; Magruder v. Drury, 235 U. S. 106, 119, 59 L. ed. 151, 156, 35 Sup. Ct. Rep. 77. It is urged that the contract of purchase was ultra vires the corporate powers of the bank. The court of appeals, in deciding this point, referred to the decisions of this court which have held that objections to the passing of title in conveyances to national banks, although made in excess of any legal authority given the bank by the law, can only be made by the government in a direct proceeding, and will not defeat the vesting of the title in the bank when it takes a conveyance in good faith, for a valuable consideration. Union Nat. Bank v. Matthews, 98 U. S. 621, 25 L. ed. 188; National Bank v. Whitney, 103 U. S. 99, 26 L. ed. 443; Reynolds v. First Nat. Bank, 112 U. S. 405, 28 L. ed. 733, 5 Sup. Ct. Rep. 213; Thompson v. St. Nicholas Nat. Bank, 146 U. S. 240, 36 L. ed. 956, 13 Sup. Ct. Rep. 66; Schuyler Nat. Bank v. Gadsden, 191 U. S. 451, 48 L. ed. 258, 24 Sup. Ct. Rep. 129. But, without questioning the correctness of this conclusion, we are of opinion that the authority of the bank to make this purchase, or of the Comptroller to approve of it, or of the court to order the sale of this asset upon the petition of Baker, as receiver, need not necessarily be considered in determining the right to recover in this proceeding. Upon the plainest principles governing the relation of the parties here, in view of the finding that there was a secret trust in Baker's favor in the transfer to Simpson, Baker could not be heard to question the authority by which he acquired the property ostensibly for the benefit of his trust, but in reality for himself, in breach of his trust. To sanction this would be to permit Baker to take advantage of his own wrong. It is not for him to say that he can acquire title in fraud of his trust because the bank could not legally acquire it, or the Comptroller approve or the court authorize, its sale. As the facts are found, Baker assumed to act upon the understanding that the bank owned the contract of purchase, and under an order invoked by him, he undertook to sell it for the benefit of the trust, but in reality conveyed it to one who secretly held it for him. Under such circumstances, the trustee can take nothing by his wrongful act, and can be compelled to restore the property to the authorized representative of the trust estate. Plaintiff relies greatly upon Case v. Kelly, 133 U. S. 21, 33 L. ed. 513, 10 Sup. Ct. Rep. 216, where certain officers of a railroad had procured conveyances of lands intended to be used in the construction of the road, and had taken title to themselves personally, and the railroad was seeking to recover the lands, although forbidden by its charter to take and hold title to such lands. In this case, Mr. Justice Miller, speaking for the court, said: 'We need not stop here to inquire whether this company can hold title to lands, which it is impliedly forbidden to do by its charter, because the case before us is not one in which the title to the lands in question has ever been vested in the railroad company, or attempted to be so vested. The railroad company is plaintiff in this action, and is seeking to obtain the title to such lands. It has no authority by the statute to receive such title and to own such lands, and the question here is not whether the courts would deprive it of such lands if they had been conveyed to it, but whether they will aid it to violate the law and obtain a title which it has no power to hold. We think the questions are very different ones, and that while a court might hesitate to declare the title to lands received already, and in the possession and ownership of the company, void on the principle that they had no authority to take such lands, it is very clear that it will not make itself the active agent in behalf of the company in violating the law and enabling the company to do that which the law forbids.' But the present case is not so. Here the state has parted with its title, and made the contract to convey to the bank at the instance of the receiver, who now seeks to hold the title for his own benefit, in breach of his trust. As to the defense of laches, both courts below found that the facts show entire want of knowledge on the part of the present plaintiff or his predecessor in office of the secret arrangement by which Baker acquired the title to the contract of purchase. Until knowledge of this fraudulent transaction, or facts equivalent thereto, was brought home to those authorized to act, there could be no laches in the failure to prosecute the suit. Nor do we find merit in the contention that the seven-year Statute of Limitations (Rem. & Bal. Code [Wash.] § 789) in favor of persons in the actual and notorious possession of lands, under claim of title in good faith, has any application here. Under the facts found Baker does not come within the class protected by this statute. Other points are urged, but it is enough to say that we find no error in the decree of the Circuit Court of Appeals, and it is affirmed.

242.US.568

The Michigan "Blue Sky Law," Act No. 46, Public Acts, 1915, p. 63, is the same in principle as the laws of Ohio and South Dakota, involved in lail v. Geiger-Jones Co., ante, 539, and Caldwell v. Sioux Falls Stock Yards Co., ante, 559, and is sustained over constitutional objections for the same reasons. Whether the dealing in stocks and other securities, or sale of their own issues by corporations, require governmental regulation for the prevention of fraud, and whether svch regulation should be by executive control or otherwise, are questions for the state legislature, and unless its judgment in these regards, or the execution of it, be palpably arbitrary, the courts will not interfere. ,Tt is not a function of this court to pass upon the expediency or adequacy of legislation. The purpose of the Michigan statute is to protect investors in securities not from financial loss generally but from fraud. In prevention of fraud, the regulatory power of a State is not necessarily confined to those classes of business which by their nature or as generally conducted involve or encourage fraud; it may extend to those in which fraud usually, when it arises, is occasional and confined to individual transactions, but which may nevertheless be conducted for fraudulent purposes. The limitations of the Constitution are not so rigid as to render state legislation inadequate to the changing conditions of life. Section 3 of the Michigan act, which exempts from its operation securities "listed in any standard manual of information" approved by the securities commission, held, not to render the act unduly discriminatory or involve unlawful delegation of power. The act complies with the requirement of the Michigan constitution that no law shall embrace more than one object, which shall be expressed in its title. 228 Fed. Rep. 805, reversed.

The statute of Michigan is the same as the statutes of South Dakota and Ohio, and our reply to the attacks made upon it might be rested upon our discussion of those statutes. But in the present case, as we have said elsewhere, the arguments, while fundamentally the same, are in some respects more circumstantial. All the supposed consequences of the law are dilated upon—wherein, as it is contended, it meddles with or burdens a business asserted to be legitimate, wherein it prohibits or gives power to an executive officer to arbitrarily prohibit such business, and wherein it confuses legislative and executive powers, and in these ways and other ways, as it is further contended, transgresses the Constitution of the United States. Many cases are cited to support the contentions and publicists are avouched to the same end. In our discussion we cannot be as elaborate in details as counsel, nor is it necessary. There are certain outside propositions upon which all others may be regarded as dependent. These propositions were considered in the other cases and we need now only supplement what was there said. The appellants justify the law by the police power of the state and its comprehensive reach. Replying, appellees urge against it the limitations of the 14th Amendment and the national supremacy over interstate commerce; and applying the 14th Amendment, assort in many ways (we select one and upon it the changes are rung) that the issue of the securities 'is in effect the making of contracts 'proper and necessary and essential' to the pursuit of lawful livelihoods or avocations,' and cannot be 'made the subject of discretionary executive license,' controlling thereby individual transactions. The assertion encounters immediately many cases in which laws have been sustained limiting the making of contracts and regulating business through executive agencies and necessarily controlling individual transactions. Indeed, there are too many for even marginal citation. They, however, are attempted to be distinguished or restricted. It is said by counsel that they 'deal with administrative control over matters of public right or public grant or existing at public sufferance.' And it is admitted that 'the legislature may deal drastically with many matters of private right, to prevent or redress individual wrongs.' It is further admitted that 'drastic remedies may be prescribed by law [italics ours] for evils deemed by the legislature to require them.' Excluding the proposition so expressed from application to the Michigan law, it is insisted that the business to which it applies 'neither requires nor justifies, nor is susceptible of, administrative or executive control for the purpose of preventing a wrong or injury by one individual to another.' Of course, the implication, if not the direct assertion, is that the business of dealing in securities has not that character. Neither the principle nor the assertion is very tangible. The first incidence of any evil from a business or conduct is upon some individual, and through the individual (let us say individuals, for necessarily there are more than one) upon the community; nor can it be affected in any other way. Besides, it is for the state to judge in such circumstances, and the judgment and its execution would have to be palpably arbitrary to justify the interference of the courts. Counsel, indeed, frankly concedes the evil of 'get-rich-quick' schemes and quotes the banking commissioner of the state of Kansas for the statement that the 'Blue Sky' law of that state had saved the people of the state $6,000,000 since its enactment, and that between 1,400 and 1,500 companies had been investigated by the department and less than 400 of the number granted permits to sell securities in the state. Counsel also quotes the confidence of the commissioner in the efficacy of the law, and that it will 'eventually result in the regulation and supervision of all kinds of companies in the same manner as banks are now regulated and supervised.' Against this statement, however, counsel cites the view expressed by the British Board of Trade of the inexpediency of an official investigation 'into the soundness, good faith, and prospects' of companies. Upon this difference in views we are not called upon to express an opinion, for, as we have said, the judgment is for the state to make, and in the belief of evils and the necessity for their remedy and the manner of their remedy the state has determined that the business of dealing in securities shall have administrative supervision, and twenty-six states have expressed like judgments. Much may be said against these judgments, as much has been said, and decisions of the courts have been cited against them. We are not insensible to the strength of both, but we cannot stay the hands of government upon a consideration of the impolicy of its legislation. Every new regulation of business or conduct meets challenge, and, of course, must sustain itself against challenge and the limitations that the Constitution imposes. But it is to be borne in mind that the policy of a state and its expression in laws must vary with circumstances. And this capacity for growth and adaptation we said, through Mr. Justice Matthews, in Hurtado v. California, 110 U. S. 516, 530, 28 L. ed. 232, 237, 4 Sup. Ct. Rep. 111, 292, is the 'peculiar boast and excellence of the common law.' It may be that constitutional law must have a more fixed quality than customary law, or, as was said by Mr. Justice Brewer, in Muller v. Oregon, 208 U. S. 412, 420, 52 L. ed. 551, 555, 28 Sup. Ct. Rep. 324, 13 Ann. Cas. 957, that 'it is the peculiar value of a written constitution that it places in unchanging form limitations upon legislative action.' This, however, does not mean that the form is so rigid as to make government inadequate to the changing conditions of life, preventing its exertion except by amendments to the organic law. We may feel the difficulties of the new applications which are invoked, the strength of the contentions and the arguments which support or oppose them, but our surest recourse is in what has been done, and in the pending case we have analogies if not exact examples to guide us. So guided and so informed, we think the statute under review is within the power of the state. It burdens honest business, it is true, but burdens it only that, under its forms, dishonest business may not be done. This manifestly cannot be accomplished by mere declaration; there must be conditions imposed and provision made for their performance. Expense may thereby be caused and inconvenience, but to arrest the power of the state by such considerations would make it impotent to discharge its function. It costs something to be governed. But counsel say that the conditions imposed either are not adequate to such purpose or transcend what is necessary for it. Indeed, it is asserted that the statute has not that purpose, 'but rather to prevent financial loss.' The assertion is against the declaration of the title of the statute and against the words of its body, and cannot be justified by assigning to it the purpose of the law which it amends; nor can we assent to the contention that such purpose must be inferred from § 8 or other provisions which point, it is said, to the probability of financial loss, not fraud. The act must be considered from its declared purpose and as a whole, not from detached portions which can be easily overwhelmed when assigned a false character. It is, however, said that, assuming the statute have such purpose, the fraud referred to is not a proper object for the police power, and it is asked, 'Can the occasional fraud, that fraud which arises in the individual transaction, justify a law regulating the business of which the single transaction is a part? Or must it be fraud which is incidental to the business,—a fraud which the business itself, from its character and the manner in which it is generally conducted, invites and encourages?' And, quoting from People ex rel. Tyroler v. Warden, 157 N. Y. 116, 43 L.R.A. 264, 68 Am. St. Rep. 763, 51 N. E. 1006: 'It is a novel legislation, indeed, that attempts to take away from all the people the right to conduct a business because there are wrongdoers in it.' To the latter we say the right to do business is not taken away; the other we have already answered and need only add that we cannot, upon such considerations, limit the power of the state. The state must adopt its legislation to evils as they appear, and is not helpless because of their forms. Engel v. O'Malley, 219 U. S. 128, 55 L. ed. 128, 31 Sup. Ct. Rep. 190, was not decided because fraud was incidental to the business of banking by individuals or partnerships, but because fraud could be practised in it, and that hence it could be licensed. Nor was it decided in Allen v. Riley, 203 U. S. 347, 51 L. ed. 216, 27 Sup. Ct. Rep. 95, 8 Ann. Cas. 137, that the transfer of patent rights was of itself illegal, or that any particular transfer would be deceptive, but that some transfers might be; and so a statute of Kansas which required any person selling or offering to sell such rights to conform to certain requirements was declared valid. Nor did we hesitate to hold valid the regulation of the business of employment agencies. It was a lawful business and would not in instances be injuriously conducted; but in instances it might be, and because it might be, with injurious consequences, its regulation was provided. This court sustained the regulation and the condition that it was to be enforced according to the legal discretion of a commissioner. Brazee v. Michigan, 241 U. S. 340, 60 L. ed. 1034, 36 Sup. Ct. Rep. 561. See also Brodnax v. Missouri, 219 U. S. 285, 55 L. ed. 219, 31 Sup. Ct. Rep. 238. Other cases might be cited of similar import. It may be that there are better ways to meet the evils at which the statute is directed, and counsel have felt it incumbent upon them to suggest a better way. We can only reply that it is not our function to decide between measures, and, upon a comparison of their utility and adequacy, determine their legality. The contentions upon the discriminations of the statute we rest upon the comment made on like contentions in the other cases. A special emphasis, however, is put by appellees upon the adoption by the Commission of 'so-called 'standard manuals of investment." The adoption of these manuals, it is said, is justified by the Commission under § 3, which enumerates the securities that are exempt from the law, among others, '(h) securities which are listed in any standard manual of information approved by said Commission.' The provision is attacked as "the Michigan idea' of providing an easy way out of the act at all times.' And further: 'It is not so much an exemption of existing standard securities as a working exemption available for new offerings to be listed as issued.' And again: 'It is to be a permanent means of exempting new securities from the act.' Even this, it is asserted, is not all of the power that is given for discrimination, for it is pointed out that the Commission may call for additional information than that contained in the manuals, and may, pending the filing of the information, suspend the sale of the securities, and may also suspend, either temporarily or permanently, the sale of any securities listed in such manuals after a hearing upon notice, if the Commission shall find that the sale of such securities would work a fraud upon the purchasers thereof. The exemption and the provision are declared to be unconstitutional, and it seems to be intimated that in the fiexibility of what is considered their subterfuge a vicious character is not only given to the act, but constituted its inducement, and therefore brings the act down with it, for without it, it is insisted, the statute would not have been enacted. We cannot agree either to the characterization of the provision or its effect. The first would attribute a sinister purpose to the legislation of which there is no indication; the second would give too much importance to a subordinate provision, one that is only ancillary or convenient to the main purpose. The contentions based on the exemption and provision are a part of that which accuses the law of conferring arbitrary discretion upon the Commission, and committing to its will the existence or extinction of the business. The accusation is formidable in words, but it is the same that has been made many times. It is answered by the comment and the cases cited in the opinion in the other cases. Besides, we repeat, there is a presumption against wanton action by the Commission, and if there should be such disregard of duty, a remedy in the courts is explicitly given, and if it were not given it would necessarily be implied. Objection is made that the title of the act does not indicate its provisions, and that the act hence violates the Constitution of Michigan. The objection is untenable and does not call for particular notice. Answer to the contention that the statute is an interference with interstate commerce we leave to our opinion in Nos. 438, 439, and 440 [242 U. S. 539, 61 L. ed. 480, 37 Sup. Ct. Rep. 217]. Decree reversed and cause remanded for further proceedings in conformity with this opinion. Mr. Justice McReynolds dissents.

245.US.292

This court determines the constitutionality of a state tax upon its own judgment of the actual operation and effect of the tax, irrespective of its form and of how it is characterized by the state courts. A state tax on the business of selling goods in foreign commerce, measured by a percentage of the entire business transacted, is both a regulation of foreign commerce and an impost or duty on exports, and is therefore void. Ficklen v. Shelby County Taxing District, 145 U. S. 1, distinguished. 256 Pa. St. 508, reversed.

The state of Pennsylvania, by an act of May 2, 1899 (P. L., p. 184)1 imposes an annual mercantile license tax of $3 upon each wholesale vender of or dealer in goods, wares, and merchandise, and 'one-half mill additional on each dollar of the whole volume, gross, of business transacted annually,' and like taxes at another rate upon retail venders, and at still another upon venders at an exchange or board of trade. In the year 1913 plaintiff in error sold and delivered at wholesale, from a warehouse located in that state, merchandise to the value of about $47,000 to purchasers within the state, and merchandise to the value of about $430,000 to customers in foreign countries; the latter sales usually having been negotiated by agents abroad who took orders and transmitted them to plaintiff in error at its office in the state of Pennsylvania, subject to its approval, while in some cases orders were sent direct by the customers in foreign countries to plaintiff in error; and the goods thus ordered, upon the acceptance of the orders, having been shipped direct by plaintiff in error from its warehouse in Pennsylvania to its customers in the foreign countries. Under the act of 1899 a mercantile license tax was imposed upon plaintiff in error, based upon the amount of its gross annual receipts. Plaintiff in error protested against the assessment of so muct of the tax as was based upon the gross receipts from merchandise shipped to foreign countries. The court of common pleas of Philadelphia and, upon appeal, the Supreme Court of the state (256 Pa. 508, 100 Atl. 952) sustained the tax, overruling the contention that it amounted to a regulation of foreign commerce and also was an impost or duty on exports levied without the consent of Congress, contrary to sections 8 and 10 of article 1 of the Constitution of the United States.2 Whether there was error in the disposition of the federal question is the only subject with which we have to deal. As in other cases of this character, we accept the decision of the state court of last resort respecting the proper construction of the statute, but are in duty bound to determine the questions raised under the federal Constitution upon our own judgment of the actual operation and effect of the tax, irrespective of the form it bears or how it is characterized by the state courts. Galveston, Harrisburg, etc., Ry. Co. v. Texas, 210 U. S. 217, 227, 28 Sup. Ct. 638, 52 L. Ed. 1031; St. Louis S. W. Ry. v. Arkansas, 235 U. S. 350, 362, 35 Sup. Ct. 99, 59 L. Ed. 265; Kansas City Ry. v. Kansas, 240 U. S. 227, 231, 36 Sup. Ct. 261, 60 L. Ed. 617. In this case, however, the characterization of the tax by the state court of last resort is a fair index of its actual operation and effect upon commerce. Soon after the passage of the act, in Knisely v. Cotterel, 196 Pa. 614, 630, 46 Atl. 861, 863 (50 L. R. A. 86) that court was called upon to construe it and to answer objections raised under the Constitution of the state and the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States, and in the course of an elaborate opinion declared: 'An examination of the details of the provisions of the present act makes it clear that the tax, as held by the learned judge below, is upon the business of vending merchandise, and that the classification is based on the manner of sale, and within each class the tax is graduated according to the gross annual volume of business transacted. This is apparent from the fact that the amount of the tax over the small fixed license fee is determined in every case by the volume of business, measured in dollars, and the rate at which it is to be levied is according to the manner of sale.' The bare question, then, is whether a state tax imposed upon the business of selling goods in foreign commerce, in so far as it is measured by the gross receipts from merchandise shipped to foreign countries, is ineffect a regulation of foreign commerce or an impost upon exports, within the meaning of the pertinent clauses of the federal Constitution. Although dual in form, the question may be treated as a single one, since it is obvious that, for the purposes of this case, an impost upon exports and a regulation of foreign commerce may be regarded as interchangeable terms. And there is no suggestion that the tax is limited to the necessities of inspection, or that the consent of Congress has been given. We are constrained to hold that the answer must be in the affirmative. No question is made as to the validity of the small fixed tax of $3 imposed upon wholesale venders doing business within the state in both internal and foreign commerce; but the additional imposition of a percentage upon each dollar of the gross transactions in foreign commerce seems to us to be, by its necessary effect, a tax upon such commerce, and therefore a regulation of it, and, for the same reason, to be in effect an impost or duty upon exports. This view is so clearly supported by numerous previous decisions of this court that it is necessary to do little more than refer to a few of the most pertinent. Case of the State Freight Tax, 15 Wall. 232, 276, 277, 21 L. Ed. 146; Robbins v. Shelby County Taxing District, 120 U. S. 489, 7 Sup. Ct. 592, 30 L. Ed. 694; Fargo v. Michigan, 121 U. S. 230, 244, 7 Sup. Ct. 857, 30 L. Ed. 888; Philadelphia & Southern Steamship Co. v. Pennsylvania, 122 U. S. 326, 336, 7 Sup. Ct. 1118, 30 L. Ed. 1200; Leloup v. Port of Mobile, 127 U. S. 640, 648, 8 Sup. Ct. 1383, 32 L. Ed. 311; McCall v. California, 136 U. S. 104, 109, 10 Sup. Ct. 881, 34 L. Ed. 391; Galveston, Harrisburg, etc., Ry. Co. v. Texas, 210 U. S. 217, 227, 28 Sup. Ct. 638, 52 L. Ed. 1031. Most of these cases related to interstate commerce, but there is no difference between this and foreign commerce, so far as the present question is concerned. The principal reliance of the Commonwealth is upon Ficklen v. Shelby County Taxing District, 145 U. S. 1, 12 Sup. Ct. 810, 36 L. Ed. 601. Undoubtedly that case is near the border line; but we think its authority would have to be stretched in order to sustain such a tax as is here in question. Consistently with due regard for the constitutional provisions, we are unable thus to extend it. It that case the complaining parties were established in business within the taxing district as general merchandise brokers. and had taken out general and unrestricted licenses to do business of all kinds, both internal and interstate. As it happened, one of them (Ficklen), during the year in question, did an interstate business exclusively, and the other (Cooper & Co.) did a business nine-tenths of which was interstate. And the court, by Mr. Chief Justice Fuller, said (145 U. S. 21, 12 Sup. Ct. 812, 36 L. Ed. 601): 'Where a resident citizen engages in general business subject to a particular tax, the fact that the business done chances to consist, for the time being, wholly or partially in negotiating sales between resident and nonresident merchants, of goods situated in another state, does not necessarily involve the taxation of interstate commerce, forbidden by the Constitution.' And again (145 U. S. 24, 12 Sup. Ct. 813, 36 L. Ed. 601): 'What position they [the plaintiffs in error] would have occupied if they had not undertaken to do a general commission business, and had taken out no licenses therefor, but had simply transacted business for nonresident principals, is an entirely different question, which does not arise upon this record.' Besides, the tax imposed in the Ficklen Case was not directly upon the business itself or upon the volume thereof, but upon the amount of commissions earned by the brokers, which, although probably corresponding with the volume of the transactions, was not necessarily proportionate thereto. For these and other reasons the case has been deemed exceptional. In Postal Telegraph Cable Co. v. Adams, 155 U. S. 688, 695, 15 Sup. Ct. 268, 269 (39 L. Ed. 311), the court, again speaking by Mr. Chief Justice Fuller, said: 'It is settled that where, by way of duties laid on the transportation of the subjects of interstate commerce, or on the receipts derived therefrom, or on the occupation or business of carrying it on, a tax is levied by a state on interstate commerce, such taxation amounts to a regulation of such commerce and cannot be sustained.' The tax now under consideration, so far as it is challenged, fully responds to these tests. It bears no semblance of a property tax, or a franchise tax in the proper sense; nor is it an occupation tax, except as it is imposed upon the very carrying on of the business of exporting merchandise. It operates to lay a direct burden upon every transaction in commerce by withholding, for the use of the state, a part of every dollar received in such transactions. That it applies to internal as well as to foreign commerce cannot save it; for, as was said in Case of the State Freight Tax, 15 Wall. 232, 277 (21 L. Ed. 146): 'The state may tax its internal commerce, but if an act to tax interstate or foreign commerce is unconstitutional, it is not cured by including in its provisions subjects within the domain of the state.' That portion of the tax which is measured by the receipts from foreign commerce necessarily varies in proportion to the volume of that commerce, and hence is a direct burden upon it. So obvious is the distinction between this tax and those that were sustained in Maine v. Grand Trunk Ry. Co., 142 U. S. 217, 12 Sup. Ct. 121, 163, 35 L. Ed. 994, U. S. Express Co. v. Minnesota, 223 U. S. 335, 347, 32 Sup. Ct. 211, 56 L. Ed. 459, Baltic Mining Co. v. Massachusetts, 231 U. S. 68, 87, 34 Sup. Ct. 15, 58 L. Ed. 127, Kansas City Ry. v. Kansas, 240 U. S. 227, 232, 235, 36 Sup. Ct. 261, 60 L. Ed. 617, and some other cases of the same class, that no time need be spent upon it. Reversed.

244.US.49

An objection to the jurisdiction of the District Court based on the defendant's being a corporation not doing business in the State and upon want of representative capacity In the person served, is not waived by answering to the merits after a motion to quash the service is overruled, where the answer reasserts the jurisdictional point also, where the defendant participates in the trial only by reiterating the objection and where the judge presiding treats the ruling on the motion as conclusive because made by an associate. Provision made by a corporation for payment of its bonds and coupons at an office in a particular State and payment of coupons accordingly does not constitute such a doing of business in that State as renders the corporation liablp to be sued there. So held where the action was upon some of the bonds. There is no merit in the proposition that as a basis for determining jurisdiction the property of a corporation must be regarded as translated from its home State to another State when mortgaged to a trust company of the latter to secure bonds made payable there. Reversed.

Averring themselves to be citizens of the United States, the one residing in the city of New York and the other in Boston, Massachusetts, the defendants in error in April, 1914, sued in the supreme court of the state of New York to recover from the plaintiff in error the principal and interest of certain bonds issued by the plaintiff in error, alleged to be a corporation created by the laws of Ohio. The summons was served upon a director and vice president of the corporation, residing in the city of New York. The corporation, appearing specially for that purpose, on the ground of diversity of citizenship, removed the cause to the district court of the United States for the southern district of New York, and, on the filing of the record in that court, again solely appearing for such purpose, moved to vacate the service of summons on the ground that the corporation was created by the laws of the state of Ohio, and was solely engaged in carrying on its business at Toledo in that state; that is, in the operation of street railways and the furnishing of electrical energy for light and other purposes. The motion to vacate expressly alleged that the corporation was prosecution no business in the state of New York, and that the person upon whom the summons was served, although concededly an officer of the corporation, had no authority whatever to transact business for or represent the corporation in the state of New York. On the papers, affidavits, and documents submitted, the motion to vacate was refused and an answer was subsequently filed by the corporation setting up various defenses to the merits and besides reasserting the challenge to the jurisdiction. At the trial, presided over by a different judge from the one who had heard and adversely disposed of the challenge to the jurisdiction, the court, treating the ruling on that subject as conclusive, declined, therefore, to entertain the request of the corporation to consider the matter as urged in the answer. After this ruling the corporation refused to take part in the trial on the merits except to the extent that by way of objections to evidence, requests for rulings and instructions to the jury, it restated and reurged its previous contention as to jurisdiction. There was a verdict and judgment for the plaintiffs, and this direct writ of error to review alone the ruling as to jurisdiction was prosecuted, the record containing the certificate of the trial judge, as required by the statute. Upon the theory that, as there was diversity of citizenship, the challenge to the jurisdiction involved merely authority over the person, it is insisted that even if the objection be conceded to have been well taken, it was subject to be waived and was waived below, and therefore is not open. This must be first disposed of. The contention rests upon the proposition that because, after the motion to vacate had been overruled, an answer to the merits was filed, therefore the right to assail the jurisdiction was waived. But this disregards the fact that the answer did not waive, but in terms reiterated, the plea to the jurisdiction. It further disregards the fact that the court treated the subject as not open for consideration because of the previous ruling on the motion to vacate. Moreover, as it has been settled that the right to review by direct writ of error a question of jurisdiction may not be availed of until after final judgment (McLish v. Roff, 141 U. S. 661, 35 L. ed. 893, 12 Sup. Ct. Rep. 118), it follows that the contention must be either that there is no right to review at all, or that it can only be enjoyed by waiving all defense as to the merits and submitting to an adverse judgment. The contention, however, has been conclusively adversely disposed of. St. Louis Southwestern R. Co. v. Alexander, 227 U. S. 218, 57 L. ed. 486, 33 Sup. Ct. Rep. 245, Ann. Cas. 1915B, 77. Leaving aside the capacity of the person upon whom the summons was served, which we shall hereafter consider, the facts upon which the question of jurisdiction depends are briefly these: The corporation was created by the laws of the state of Ohio, had its principal establishment and business at Toledo, and carried on no business in the state of New York unless the contrary conclusion results from the following statement: In 1901 the corporation issued its bonds and secured the same by mortgage. The trustee under the mortgage was the United States Mortgage & Trust Company of the City of New York, and the bonds were delivered to that company, to be certified in accordance with the provisions of the deed. The bonds were subject to registry and became due and were payable on July 1, 1909, 'at the fiscal office of said company in the city of New York,' and the semiannual interest coupons were also payable 'at the fiscal office of said company in the city of New York.' Prior to 1909, when the company defaulted in the payment of the principal and interest on its bonds, the interest coupons were paid at the office of a commercial firm in New York representing the company for such purpose, but that representation wholly ceased after the default, and from that date until this suit was brought, about five years later, the company had no office for any purpose in the state of New York, and transacted no business therein. The reason which controlled the court below, and the sole contention here relied upon, therefore, was and is that the provision for the payment of the bonds and coupons at an office in the city of New York constituted a doing of business in New York so as to afford jurisdiction there; and that such result continued to operate years after the office for such purpose had ceased to exist, upon the ground that, for the purpose of jurisdiction over the corporation, it must be conclusively presumed to have continued to maintain an office in the city of New York for the purpose stated. But we think from either point of view the contention is without merit: the first, because the mere provision for a place of payment in the city of New York of the bonds and the coupons annexed to them, at their maturity, and their payment at such place, was in no true sense the carrying on by the corporation in New York of the business which it was chartered to carry on, however much it may have been an agreement by the corporation to pay in New York an obligation resulting from the carrying on by it of its business in the state of Ohio. And this view necessarily disposes of the proposition in the second aspect, since the indulging in the fiction of the existence of an office for the payment of coupons could not produce an effect greater than that which could be produced by the real existence of the office. So far as concerns the capacity of the person upon whom the summons was served irrespective of the doing of business by the corporation in the state, we do not expressly notice the various contentions by which, under such a view, jurisdiction is sought to be supported, but content ourselves with saying that we think they are all plainly without merit. Although what we have said in substance meets and disposes of all the contentions relied upon to sustain the jurisdiction, we have not expressly noticed them all because of their obvious want of merit,—a situation which is illustrated by the mere statement of a contention made that, as the trustee under the mortgage was a New York corporation in whom the title to the mortgaged property for the purposes of the trust was vested, therefore all the property of the corporation must be metaphysically considered to have been translated from the state of Ohio to the state of New York, and used as a basis of jurisdiction in such latter state. Reversed and remanded with directions to dismiss the complaint for want of jurisdiction.

243.US.311

An action governed by the Federal Employers' Liability Act is not removable from the state to the federal court upon-tht ground of diverse citizenship. Where there is substantial evidence of negligence to support the verdict in an action for personal injuries, this court will not disturb the finding of a state court. Under the Safety Appliance Act, 27 Stat. 531, c. 196, as amended by the Act of March 2, 1903, 32 Stat. 943, c. 976, the duty to provide grab-irons or hand-holds on the ends, as well as on the sides, of locomotive tenders is an absolute duty which must be literally complied with, and claimed equivalents can not satisfy the law. 268 Missouri, 31, affirmed.

Moore, the defendant in error, was in the employ of the plaintiff in error as a brakeman, and was desperately injured on June 9, 1910. His claim is that, at the moment of the accident, he was engaged in adjusting a defective automatic coupler on the rear end of the tender of an engine, which was started unexpectedly, causing him to be thrown from his feet by the steam hose equipment, which hung down to within a few inches of the surface of the track, and that, in part because the tender was not equipped with grab irons or handholds, as required by the Federal law, he fell helpless under the wheels and lost both of his hands. He recovered a judgment in the trial court, which was affirmed by the supreme court of Missouri, and the case is here on writ of error. The applicability of the Employers's Liability Act to the case was admitted from the beginning; but nevertheless a petition was promptly filed for the removal of the case to the United States circuit court on the ground of diversity of citizenship. This petition was denied, and the claim that this denial constitutes reversible error is now argued here, albeit somewhat faintly. The claim is wholly without merit, as is apparent from the plain reading of the Federal Employers' Liability Act, and as is determined in Kansas City Southern R. Co. v. Leslie, 238 U. S. 599, 59 L. ed. 1478, 35 Sup. Ct. Rep. 844, and in Southern R. Co. v. Lloyd, 239 U. S. 496, 60 L. ed. 402, 36 Sup. Ct. Rep. 210. It is claimed, with much apparent confidence, that no substantial evidence appears in the record to support the judgment of the state courts, and that, under the authority of Southern P. Co. v. Pool, 160 U. S. 438, 40 L. ed. 485, 16 Sup. Ct. Rep. 338, the judgment should be reversed. An inspection of the record satisfies us that substantial testimony was introduced in support of the claimed negligence of the railroad company, and that, applying the usual rule, the result cannot be disturbed on this claim. But chief emphasis, perhaps, is laid on the argument upon the claim that the trial court erred in refusing to say to the jury, as a matter of law, that 'any iron rod or iron device securely fastened upon the end of defendant's tender to which employees could conveniently catch hold while in the performance of their duties in coupling or uncoupling cars was a handhold or grab iron within the meaning of the law,' and that, therefore, if the vertical iron handhold and iron rod—pin lifting or uncoupling lever—extending across the tender just above the coupler, were so designed and constructed as to permit employees engaged in coupling or uncoupling cars to readily grasp them for their better security while in the performance of such work, the defendant was not guilty of negligence in failing to provide necessary and proper handholds or grab irons, and the plaintiff cannot recover for any injury sustained from lack of them on the engine tender. The trial court gave this request as the law of the case, but provided, only, the jury should find 'that said attachments or devices furnished reasonable security to the employees of defendant in coupling and uncoupling said tender and cars.' The railroad company excepted to this modification of its request to charge, and argues now that to so modify it was error. We quite agree with the supreme court of Missouri in its conclusion that the giving of the company's request, even as modified by the trial court, was error in its favor, being much more than it deserved under the law. Section 4 of the Safety Appliance Statute provides: 'It shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grab irons or handholds in the ends and sides of each car for greater security to the men in coupling and uncoupling cars.' 27 Stat. at L. 531, chap. 196, Comp. Stat. 1913, § 8608. This statute was, in terms, made applicable to tenders of engines by the amendment of 1903 (32 Stat. at L. 943, chap. 976, Comp. Stat. 1913, § 8613). The request preferred is an obvious attempt to secure the application of the doctrine of equivalents to the Safety Appliance Act, and to persuade the court to say that it is not necessary for carriers to comply with the law if only they will furnish some other appliance which one jury may say is 'just as good' but which another jury may say is not. It is much too late for such a claim to be seriously entertained. In the case of St. Louis, I. M. & S. R. Co. v. Taylor, 210 U. S. 281, 52 L. ed. 1061, 28 Sup. Ct. Rep. 616, 21 Am. Neg. Rep. 464, often approved by this court, it was settled, once for all, that Congress, not satisfied with the common-law duty and its resulting liability, in the Safety Appliance Act of March 2, 1893 (27 Stat. at L. 531, chap. 196, Comp. Stat. 1913, § 8609), prescribed and defined certain definite standards to which interstate carriers must conform, and of the required automatic couplers this court said: Congress has enacted that 'no cars, either loaded or unloaded, shall be used in interstate commerce which do not comply with the standard.' There is no escape from the meaning of these words. Explanation cannot clarify them and ought not to be employed to confuse them or to lessen their significance. The exercise of care, even the greatest, in supplying and repairing these appliances, will not excuse defects in them,—the duty and liability are absolute. St. Louis, I. M. & S. R. Co. v. Taylor, supra; Great Northern R. Co. v. Otos, 239 U. S. 349, 351, 60 L. ed. 322, 323, 36 Sup. Ct. Rep. 124. If equivalents were allowed the statute would be lost in exceptions and its humane purpose defeated in the uncertainty of litigation. The request to charge on which the plaintiff in error relies in its terms implies the absence of the required handholds or grab irons, and an inspection of the photograph of the tender confirms the inference. The vertical handhold referred to in the request was at the corner of the tender, and could be useful only to a man walking or running alongside the track to operate the uncoupling lever, or, as it is sometimes called, the pin-lifting lever. It could not be of value when the automatic coupler was not in working condition, or to a man in the position in which Moore was when injured. This grab iron requirement first appears in the Act of 1893, and the amendment ten years later (March 2d, 1903), 32 Stat. at L. 943, chap. 976, Comp. Stat. 1913, § 8613, making the requirement in terms applicable to tenders, did not change it. Whatever may be said of 1893, there can be no doubt that in 1903 automatic couplers, and therefore uncoupling or pin-lifting levers, were in common, if not general, use, on the tenders of engines, and if Congress had intended them to be accepted as a substitute for handholds or grab irons, we must assume that the amendment of 1903 would have so provided. The statute requires both. If practical confirmation of this conclusion were desired, it is to be found in the fact that, in the order of the Interstate Commerce Commission standardizing safety appliances, under the Act of Congress of April 14, 1910 (36 Stat. at L. 298, chap. 160, Comp. Stat. 1913, § 8617), two rear end handholds are required on locomotives, 'one near each side on rear end of tender on the face of the end sill.' It is not admissible to allow such an important statutory requirement to be satisfied by equivalents or by anything less than literal compliance with what it prescribes. The charge as given being more favorable to the company that it deserved, the judgment of the Supreme Court of Missouri is affirmed.

244.US.58

Concurrent findings of state trial and appellate courts as to the fact. of negligence will not be overturned by this court in the absence of clear error. Baltimore & 6hio R. R. Co. v. Whitacre, 242 U. *S. 169. A carrier's printed form of contract for interstate transportation of livestock, plainly intending to adjust the rates in each case proportionately to valuations to be made by the shipper which should limit the carrier's liability, specified minimum or primary valuations for various kinds of animals with corresponding tariff rates and left blanks for insertion of the shipper's valuations connected with the statement that the same were declared by the shipper in order to avail himself of the alternative rates. In a case where the blanks for valuations by the shipper were left unfilled at execution but the rate charged and inserted in the contract was in accordance with the carrier's tariff as applied to the primary valuations, Held that these were the valuations adopted by the parties and that the carrier's liability was limited accordingly. Failure to post rates which are duly made out and filed with the Interstate Commerce Commission does not affect their validity or the duty of a shipper to take notice of them. A clause in a carrier's merchandise rate schedules providing that rates there must not be applied to livestock shipments, construed as intended to leave the provisions of the livestock schedule concerning rates and valuations for independent interpretation uninfluenced by provisions in the merchandise schedules. The effect of a contract made and signed by a shipper in lawful accord with established rate sheets may not be avoided by the suggestion that through neglect or inattention he did not read it. 250 Pa. St. 527, reversed.

The subject-matter of this suit is the liability, if any, of the plaintiff in error, the Express Company, for the failure to safely deliver a colt which was intrusted to it by the agent of the defendant in error at Milwaukee, Wisconsin, for transportation to Erie, Pennsylvania, and, if there was any liability, the amount thereof. The controversy is here to review the action of the court below in affirming a judgment of the trial court, rendered on a verdict of a jury finding that there was liability, and fixing the amount at $1,916.70. 250 Pa. 527, 95 Atl. 706. Jurisdiction to review rests upon the interstate commerce character of the shipment, involving various alleged misconstructions of the Act to Regulate Commerce and consequent deprivation of Federal rights asserted to have arisen from the course of the trial in the court of first instance, as also from the action of the court below in affirming. These contentions in the courts below concerned both the existence of liability, and, if any, the amount. As the result, however, of the conclusion of both courts as to the fact of negligence, and the absence of any ground for clear conviction of error on the subject (Great Northern R. Co. v. Knapp, 240 U. S. 464, 466, 60 L. ed. 745, 751, 36 Sup. Ct. Rep. 399; Baltimore & O. R. Co. v. Whitacre, 242 U. S. 169, 61 L. ed. 228, 37 Sup. Ct. Rep. 33), as well as because of the limitations resulting from the errors assigned and relied upon, the question of liability may be put out of view, thus reducing the case to a question of the amount, and that turns on whether there was a limitation of liability and the right to make it. The printed form of contract (express receipt) which was declared on and made a part of the complaint contained a caption under a title 'Notice to Shippers,' directing their attention to the fact that they must value their property to be shipped, and that the charges for transportation and the sum of recovery in case of loss would be based upon valuation. The contract itself was entitled, 'Limited Liability Livestock Contract.' Its first clause described the carriage which was to be provided for with appropriate blanks to enable the insertion of the live stock which it covered and the rate to be paid for the service, with a proviso that the charge was based upon valuation fixed by the shipper. The second clause stated a demand by the shipper for rates to be charged for the carriage, and that he was offered 'by said Express Company alternative rates proportioned to the value of such animals, such value to be fixed and declared by the shipper, and according to the following tariff of charges, viz.:' This was followed by clause 3, which contained enumerations of various classes of animals, fixing a primary valuation for each class; for instance: 'For . . . horses . . . $100.' 'For . . . colts . . . $50.' The fourth and fifth clauses provided that after ascertaining the rate to be charged for all classes of animals embraced in clause 3 by applying to those classes the rate provided by the tariff sheets filed according to law with the Interstate Commerce Commission, there should be added to such rate a stated percentage of the amount by which the declared valuation of the shipper exceeded the primary valuation fixed by the terms of clause 3. The fifth clause also concluded with the declaration that the shipper, in order to avail himself of the alternative rates, had declared a value as follows, and contained blanks for the insertion of said valuation. There was filled in this blank contract, as signed by the parties and as sued on, in the first clause a statement of the animals shipped, a mare and colt, and of the rate, $75. In the third clause containing the enumeration of classes, in the class as to horses valued at $100 there was written '$100,' and in the class as to colts valued at $50 there was written '$50.' There was no filling of the blank at the end of the fifth clause, stating the owner's valuation, and that space, therefore, remained vacant. There was evidence tending to show that the shipper was experienced in shipping horses and was informed of the right to value, and that the rate as well as the recovery would depend upon valuation. Evidence was also admitted, over objection of the company, tending to show that the shipper was unaware of the valuation clauses and that he signed the contract without reading it. There was further evidence that, on the contrary, the shipper was fully informed by the agent and declared his purpose to fix the primary valuation and not to exceed it. In addition, evidence was tendered by the defendant which was rejected and objection reserved, tending to show that, in consequence of the desire of the shipper not to change the primary valuation, that is, to adopt the same, the figures written into the clauses of § 3 of $100 as to the mare and $50 as the colt were written by the agent inadvertently in the wrong place, intending to write them at the space left vacant for the shipper's valuation at the end of clause 5, and that for the same reason the rate charged was based on the tariff as applied to the primary valuation as stated in the third clause of the contract. Putting out of view the conflicting tendencies of the proof, and looking at the subject-matter from the point of view of the contract, that it was one intended to limit liability, or, in other words, to fix a rate according to value, at the shipper's election, and to regulate recovery in case of loss correspondingly, would seem too clear for anything but statement. It is true the intimation is conveyed in the argument that the alternative rate depended exclusively upon the making of a valuation by the shipper, and that where this was not done, there was no valuation and no limitation, and a consequent limited rate and unlimited liability. But the suggestion disregards the stating of a value in the different clauses of § 3 which are susceptible of no other explanation than that they were intended as a primary value to control as the basis for fixing the rates and as a rule of limitation if the shipper did not, by making another and increased value, become liable for a higher rate and possess the right to a greater recovery. To adopt the suggestion would require a disregarding of the plain terms of the contract, and would leave no basis upon which to explain the rate fixed, which clearly rested upon the tariff as applied to the articles and the statement as to value fixed in the third clause. That it was in the power of the carrier under the Act to Regulate Commerce, as amended, to limit liability even in case of negligence by affording the shipper an opportunity to pay a higher rate and secure a higher recovery than the one initially fixed by the carrier, is so conclusively settled as to be beyond controversy. Adams Exp. Co. v. Croninger, 226 U. S. 491, 57 L. ed. 314, 44 L.R.A.(N.S.) 257, 33 Sup. Ct. Rep. 148; Kansas City Southern R. Co. v. Carl, 227 U. S. 639, 57 L. ed. 683, 33 Sup. Ct. Rep. 391; Missouri, K. & T. R. Co. v. Harriman, 227 U. S. 657, 57 L. ed. 690, 33 Sup. Ct. Rep. 397; Chicago, R. I. & P. R. Co. v. Cramer, 232 U. S. 490, 58 L. ed. 697, 34 Sup. Ct. Rep. 383; Great Northern R. Co. v. O'Connor, 232 U. S. 508, 58 L. ed. 703, 34 Sup. Ct. Rep. 380, 8 N. C. C. A. 53; Boston & M. R. Co. v. Hooker, 233 U. S. 97, 58 L. ed. 868, L.R.A.1915B, 450, 34 Sup. Ct. Rep. 526, Ann. Cas. 1915D, 593; Atchison, T. & S. F. R. Co. v. Robinson, 233 U. S. 173, 58 L. ed. 901, 34 Sup. Ct. Rep. 556; Louisville & N. R. Co. v. Maxwell, 237 U. S. 94, 59 L. ed. 853, L.R.A.1915E, 665, P.U.R.1915C, 300, 35 Sup. Ct. Rep. 494; George N. Pierce Co. v. Wells, F. & Co. 236 U. S. 278, 59 L. ed. 576, 35 Sup. Ct. Rep. 351; Cincinnati, N. O. & T. P. R. Co. v. Rankin, 241 U. S. 319, 60 L. ed. 1022, L.R.A. 1917A, 265, 36 Sup. Ct. Rep. 555; New York C. & H. R. R. Co. v. Beaham, 242 U. S. 148, 61 L. ed. 210, 37 Sup. Ct. Rep. 43. These rulings are decisive unless it be that, for some reason, they are inapplicable, and we briefly consider separately the grounds relied upon as demonstrating that result. It is said the rate sheets filed with the Interstate Commerce Commission, if they sustained the contract, were not posted, and therefore the contract must be treated as having nothing to rest upon. But the proposition is adversely disposed of by several of the cases above cited. Kansas City Southern R. Co. v. Carl, 227 U. S. 639, 652, 57 L. ed. 683, 688, 33 Sup. Ct. Rep. 391; Boston & M. R. Co. v. Hooker, 233 U. S. 97, 111, 58 L. ed. 868, 875, L.R.A.1915B, 450, 34 Sup. Ct. Rep. 526, Ann. Cas. 1915D, 593; Cincinnati, N. O. & T. P. R. Co. v. Rankin, 241 U. S. 319, 327, 60 L. ed. 1022, L.R.A.1917A, 265, 36 Sup. Ct. Rep. 555; New York C. & H. R. R. Co. v. Beaham, 242 U. S. 148, 151, 61 L. ed. 210, 37 Sup.Ct.Rep. 43. But it is urged the contract of limitation was void because it is shown to have been illegal; that is, repugnant to the official tariff sheets filed with the Interstate Commerce Commission, which, properly authenticated, were offered in evidence. But, turning to the official tariff sheets as found in the record, it is apparent that the terms of the contract are substantially identical with the statement in the tariff sheets as to the rates concerning the shipment of live stock, and indeed, comparing the two, it is impossible to reach any other conclusion than that the provisions of the contract were copied from the provisions of tariff sheets. In substance the argument rests upon the assumption which we have already disposed of; that is, that the contract only provided for a limitation in the event of a declaration of value by the shipper, and left no room for such a limitation where the shipper obtained the lowest possible rate by making no valuation, and accepting the primary limit of value stated in the contract by the carrier. The argument as we are now considering it, however, proceeds not solely upon the text of the contract and the tariff sheets concerning the carriage of live stock, but additionally upon the effect produced upon such provisions by clauses in the tariff sheets relating to the valuation of merchandise. The argument in this: that as in the rate schedules dealings with merchandise valuation it is expressly provided that the primary limitation of value fixed shall be the measure of the charge and liability unless another and higher valuation be declared, such rule ought not to be deduced from the provisions as to live stock valuation where that stipulation is not found in express terms, and hence that, in the absence of an express valuation in a livestock contract by a shipper, no primary limitation on value is possible, and thus the rule of the lesser the rate the greater the responsibility would necessarily, in the case of live stock, come to pass. Incongruous as this result would be, it is said that it should be applied since, in the rate sheet concerning merchandise, it is declared in ¶ d that 'these charges must not be applied to live animals, live birds or live stock (see ¶ g),' that is, the live-stock paragraph. But to give to the clause the import claimed for it would be to cause it to accomplish the very result which it was obviously intended to prevent; that is, the control or modification of the charges contained in live-stock clauses by the provisions as to merchandise charges. Indeed, the complete answer to the proposition is the one which we have previously pointed out in considering the argument in another form of statement,—that to accede to it would require a plain disregard of the fixing of a primary valuation by the terms of the contract and the sanction of the right to do so, found in the express words of the rate sheets. Finally, it is said that the right to limit ought not to be recognized in the presence of a controversy and conflicting tendencies of proof as to whether the limitation of liability was called to the attention of the shipper, and, if one aspect be accepted, of the possibility that the contract was signed by the shipper in ignorance of the clause. But here again the contention but overlooks the very foundation upon which the principle settled by the adjudged cases rests and disregards the express ruling in some of them, that the effect of a contract made and signed by a shipper, which is lawful from the point of view of the established rate sheets, may not be avoided by the suggestion that, by neglect or inattention, the contract which was entered into was never read. Cincinnati, N. O. & T. P. R. Co. v. Rankin, 241 U. S. 319, 60 L. ed. 1022, L.R.A. 1917A, 265, 36 Sup. Ct. Rep. 555; New York C. & H. R. R. Co. v. Beaham, 242 U. S. 148, 151, 61 L. ed. 210, 37 Sup. Ct. Rep. 43. As from what we have said it follows that the shipper should not have been permitted, after obtaining the lowest possible rate based upon a valuation to which his right of recovery in case of loss was limited, to recover, upon the happening of the loss, an amount wholly disproportionate and inconsistent with the rate paid, contrary to the express terms of the contract, it results that the judgment below must be and it is reversed and the case remanded for further proceedings not inconsistent with this opinion. And it is so ordered.

244.US.346

It is the essential character of commerce which determines whether it is interstate or intrastate, and not the accident of through or local bills of lading. Where commodities are in fact destined from one State to another, a rebilling or reshipment en route does not of itself break the continuity of the movement or require that any part be classified differently from the remainder. Plaintiff, an Indiana corporation, for the purpose of filling orders taken by its salesmen in Tennessee, shipped into that State a tank car of oil and a carload of barrels and filled the orders from the cars through a traveling agent, who drew the oil from the tank into the barrels, or into others furnished by the customers, and made delivery to the latter, collecting the price at the time. The cars were billed to the plaintiff to a point in Tennessee where part of the orders was filled, and thence rebilled to the plaintiff to another point in that State where the remaining orders were filled and the supply of oil and barrels exhausted, this in pursuance of plaintiff's plan and intention at the time of original shipment that the cars should remain at the first place only long enough to fill the orders from there and should then proceed to the second. Held, that the movement of the goods to the first place and its continuance thence to the second were connected parts of a continuing interstate commerce movement to the latter, and that plaintiff could not be subjected to an occupation or privilege tax under the law of Tennessee because of the sales consummated at either destination. Reversed.

This was a suit by an Indiana corporation to recover money paid under protest as an occupation or privilege tax in Tennessee. The plaintiff had an oil refinery in Illinois and a steel barrel factory in Indiana, and was selling the products of its refinery and factory upon orders taken by traveling salesmen in its employ. For the purpose of filling orders so taken in Maury county, Tennessee, it shipped into that county from its refinery a tank car of oil and from its factory a car of steel barrels. Both cars were billed to the plaintiff at Columbia, in that county, and, after the orders from that place were filled, were rebilled to the plaintiff at Mount Pleasant, in the same county, where the orders from the latter place were filled. At both places the orders were filled directly from the cars by a traveling agent of the plaintiff and the purchase price was collected at the time,—this being what was contemplated when the orders were taken. If the order was for both oil and barrels, the oil was drawn out of the tank car into the barrels and the two were jointly delivered; and if oil alone was ordered, it was drawn from the tank car into barrels otherwise provided by the buyer. When the cars were originally shipped they contained just the quantity of oil and the number of barrels required to fill the orders from the two places, and the plaintiff intended that they should remain at Columbia only long enough to fill the orders from that place and then should be sent to Mount Pleasant, so the orders from that place could also be filled. The quantity of oil and the number of barrels required to fill the orders from Mount Pleasant were in the cars continuously from the time of the original shipment until the cars reached that place. The plaintiff had no office or local agent in Tennessee, nor any oil depot, storage tank, or warehouse in that state. The statute, chap. 479, Acts 1909, § 4, under which the tax was exacted and paid, provides: 'Each and every person, firm, partnership, corporation, or local agent having oil depots, storage tanks or warehouses for the purpose of selling, delivering, or distributing oil of any description, and each and every person, firm, partnership, corporation, or local agent using a railroad car or railroad depots for such purpose, shall pay a privilege tax as follows.' The objection made to the tax, as applied in the circumstances stated, was that it was a tax upon interstate commerce and therefore violative of the commerce clause of the Constitution. In the county court judgment was given for plaintiff, and this was reversed by the supreme court of the state, which held, first, that what was done up to and including the filling of the orders from Columbia was interstate commerce, and the state could not exact a privilege tax therefor consistently with the commerce clause of the Constitution (see Western Oil Ref. Co. v. Dalton, 131 Tenn. 329, 174 S. W. 1138), and, second, that what was done thereafter—rebilling and forwarding the cars from Columbia to Mount Pleasant and then filling the orders from that place—was intrastate commerce and afforded an adequate basis for exacting the tax. Of the first part of the decision it is enough to say it is supported by a long line of adjudicated cases in this court, among them being these: Caldwell v. North Carolina, 187 U. S. 622, 47 L. ed. 336, 23 Sup. Ct. Rep. 229; Dozier v. Alabama, 218 U. S. 124, 54 L. ed. 965, 28 L.R.A.(N.S.) 264, 30 Sup. Ct. Rep. 649; Crenshaw v. Arkansas, 227 U. S. 389, 57 L. ed. 565, 33 Sup. Ct. Rep. 294; Stewart v. Michigan, 232 U. S. 665, 58 L. ed. 786, 34 Sup. Ct. Rep. 476. In the second part of the decision we think the court erred. Unlike Gulf, C. & S. F. R. Co. v. Texas, 204 U. S. 403, 51 L. ed. 540, 27 Sup. Ct. Rep. 360, this is not a case where, at the time of the original billing, the shipper had no purpose to continue the transportation beyond the destination then indicated; nor is it a suit, as was that, to penalize a carrier which rightly conformed its action to what was said in the bill of lading. On the contrary, it is a case where the shipper intended from the beginning that the transportation should be continued beyond the destination originally indicated, and where there is nothing which requires that decisive effect be given to the bill of lading. Ordinarily the question whether particular commerce is interstate or intrastate is determined by what is actually done, and not by any mere billing or plurality of carriers, and where commodities are in fact destined from one state to another, a rebilling or reshipment en route does not of itself break the continuity of the movement or require that any part be classified differently from the remainder. As this court often has said, it is the essential character of the commerce, not the accident of local or through bills of lading, that is decisive. Southern P. Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498, 55 L. ed. 310, 31 Sup. Ct. Rep. 279; Railroad Commission v. Worthington, 225 U. S. 101, 56 L. ed. 1004, 32 Sup. Ct. Rep. 653; Texas & N. O. R. Co. v. Sabine Tram Co. 227 U. S. 111, 57 L. ed. 442, 33 Sup. Ct. Rep. 229; Railroad Commission v. Texas & P. R. Co. 229 U. S. 336, 57 L. ed. 1215, 33 Sup. Ct. Rep. 837; Chicago, M. & St. P. R. Co. v. Iowa, 233 U. S. 334, 343, 58 L. ed. 988, 992, 34 Sup. Ct. Rep. 592; South Covington & C. Street R. Co. v. Covington, 235 U. S. 537, 545, 59 L. ed. 350, 353, L.R.A. 1915F, 792, P.U.R.1915A, 231, 35 Sup. Ct. Rep. 158. Here, when the cars were started from Illinois and Indiana, it was intended by the shipper, as is expressly conceded, that they should be taken to Columbia, Tennessee, where a portion—a definite portion—of the contents of each was to be taken out and delivered, and that the cars, with the remainder of the contents, should proceed to Mount Pleasant in the same state; and this is what actually was done. Columbia was the destination of only a part of the merchandise, not of all. As to part, it was merely the place of a temporary stop en route. The original billing to Columbia and the rebilling from there to Mount Pleasant operated in the same way as would an original billing to Mount Pleasant, with the privilege of stopping en route at Columbia to deliver a part of the merchandise. Indeed, it is stipulated that the reason for not billing the cars through to Mount Pleasant in this way was because the carriers receiving the shipments 'would not allow such a stop-over privilege, though the same is allowed on nearly every other kind of shipment.' Certainly the transportation of the merchandise destined to Mount Pleasant was not completed when it reached Columbia; nor was the continuity of its movement broken by its temporary stop at that place. As to that merchandise the journey to Columbia and the journey from there to Mount Pleasant were not independent, each of the other, but in fact and in legal contemplation were connected parts of a continuing interstate movement to the latter place. It results that the tax was imposed for carrying on interstate commerce, and so was repugnant to the Constitution and void. Judgment reversed. The CHIEF JUSTICE dissents, being of opinion that the case is controlled by May v. New Orleans, 178 U. S. 496, 44 L. ed. 1165, 20 Sup. Ct. Rep. 976.

244.US.555

Greene v. Louisville & Interurban R. R. Co., ante, 499, followed in holding: (1) That these are not in effect suits against the State, (2) that plaintiff has not an adequate remedy at law under § 162, Ky. Stats., and (3) that judicial relief may be granted against unlawful discrimination resulting from general and systematic undervaluations by assessors. Louisville & Nashville R. R. Co. vi Greene, ante, 522, followed: (1) As to the sufficiency of proof of general, systematic and notorious undervaluation of property by assessors in Kentucky, (2) in holding that the jurisdiction of the courts extends to enjoining the collection of illegal taxes when assessed for state purposes as well as when assessed for local purposes, and (3) in holding that, as applied to an interstate railroad, the Kentucky statutes require first an apportionment of a proper share of the railroad's total "capital stock" (tangible and intangible property) value to Kentucky, followed by a deduction from Kentucky's portion thereof of the value of the railroad's tangible property in that State. The evidence here warrants the conclusion that plaintiff's "franchise" (intangible property) in Kentucky was valued by the Board of Valuation and Assessment upon the basis of 80 per cent. of its "capital stock" (tangible and intangible property) apportioned to that State. In the absence of fraud, the valuations made by an assessing board are not judicially reixaminable unless resulting from some principle of assessment which is fundamentally wrong. In this case no fundamentally wrong principle was involved in adopting the capitalization-of-income rather than the stock-and-bond plan for valuing a railroad system; in determining what rate of interest should be selected, or how many years' earnings should be considered, in capitalizing; or in finding what was the net income for a given year. Although the fact that property is part of a system and has its uses only in connection with other parts of the system may be considered by a State in taxing that portion of the system which is within her borders, yet the idea of organic unity must not be made the means of unlawfully taxing property without the State belonging to persons domiciled elsewhere. It being contended that in valuing upon a mileage basis that portion of plaintiff's railroad system which was taxable in Kentucky the Board of Valuation and Assessment did not make due allowance for the excess value per mile due to costly terminals in other States, Held that, in the absence of contrary proof, the Board must be presumed to have made such allowance. Plaintiff insisted that certain investment securities held by it in its treasury in another State should not be considered as part of its assets in assessing its intangible property, apportionable to Kentucky, averring in its pleading that they had no connection with its business of transportation and did not represent railroads or other properties operated by it. This contention being rejected for want of evidence upon the character of the securities and their relations to plaintiff's system, plaintiff on rehearing contended that, as tfiey represented a controlling interest in other railroads outside the State, the mileage of such railroads should be taken into account, under Ky. Stats., § 4081, in the apportionment, Held that the District Court did not abuse its discretion in ruling that this contention came too late. 209 Fed. Rep. 465, affirmed. THE cases are stated in the opinion.

These are appeals and cross appeals from two final decrees of the district court enjoining (upon certain conditions) the enforcement of franchise tax assessments for the respective years 1912 and 1913, made against the Illinois Central Railroad Company (plaintiff below in each case) by Henry M. Bosworth and others, constituting the Board of Valuation and Assessment of the State of Kentucky, who were among the original defendants, and to whose offices the cross appellants Robert L. Greene and others succeeded pending the suits, and were thereupon brought in as parties defendant. Plaintiff being an Illinois corporation, the Federal jurisdiction was invoked upon the ground of diversity of citizenship, and also of alleged infringement of plaintiff's rights under the due process and equal protection provisions of the 14th Amendment; the assessments being attacked as having been made by the Board in a manner not in accordance with the state law, as including in the valuation property not within the state, contrary to the due process clause, and as being based upon a discriminatory rule of valuation as compared with other property in the state, and thus amounting to a denial of the equal protection of the laws. The equity jurisdiction was invoked upon the usual grounds. The pleadings are involved, and no attempt will be made to summarize them. In the case relating to the 1912 assessment, they differ somewhat from those in the case relating to the assessment for the following year; but the two cases were consolidated for the purposes of final hearing. They resulted in decrees granting relief to the plaintiff to the extent of equalization with the basis of assessment customarily adopted by assessing officers with respect to other property in the state, and denying relief upon the other grounds of complaint. Plaintiff appealed to this court in both cases upon the ground that it was entitled to more ample relief; defendants took cross appeals upon the ground that no relief ought to have been granted. The cases were heard here together with several cognate cases, this day decided, viz.: Nos. 617 and 618, Greene v. Louisville & Interurban R. Co. 244 U. S. 499, 61 L. ed. ——, 37 Sup. Ct. Rep. 673, and Nos. 778 and 779, Louisville & N. R. Co. v. Greene, 244 U. S. 522, 61 L. ed. ——, 37 Sup. Ct. Rep. 683. The salient facts of the present cases are as follows: During the two years pertinent to the controversy, plaintiff operated a system of railroads extending throughout the state of Kentucky and ten other states, having, according to the averments contained in the bills of complaint and the proofs upon which the cases were heard, a total mileage owned, operated, leased, or controlled amounting to 4,550.54, of which 563.79 miles, or 12.3 per cent, were in Kentucky. For the year 1912, the Board of Valuation and Assessment fixed plaintiff's capital stock valuation for the state of Kentucky at $27,124,240, and deducted from this the tangible property assessment made by the Railroad Commission, $12,377,383, leaving the franchise assessment $14,746,857. The district court granted a restraining order, followed by a preliminary injunction, conditioned that plaintiff should pay taxes, state and local, on a valuation of $6,618,585 (209 Fed. 465), and eventually made a final decree enjoining the enforcement of the assessment, conditioned upon plaintiff's paying taxes upon an additional valuation of $1,347,212, or $7,965,797 in all. For the year 1913, the capital stock value fixed for Kentucky was $23,679,180, the assessed value of tangible property $12,478,903, which, being deducted, left $11,200,277 as the franchise valuation. The court granted a restraining order upon payment of taxes on an assessment of $6,000,000, followed this with a temporary injunction upon the same terms, and made a final decree granting a permanent injunction upon condition of the payment of taxes upon $2,161,067 in addition to the $6,000,000 upon which taxes had been paid under the order for preliminary injunction. With respect to three of the questions raised by defendants herein: (a) that the suits are not maintainable because in effect suits against the state; (b) that plaintiff has an adequate remedy at law under § 162, Kentucky Statutes; and (c) that plaintiff is not entitled to relief by way of equalization because of the undervaluation of property in general by the local assessors; these cases, like the Louisville & Nashville R. Co. Cases, are controlled by the decision in Greene v. Louisville & Interurban R. Co. supra. Upon the question of the sufficiency of the proofs to warrant the conclusion of the district court as to the general, systematic, and notorious undervaluation of property in Kentucky by the assessing officers for purposes of taxation, and as to the ratio of such undervaluation, the present cases are indistinguishable from the Louisville & Nashville R. Co. Cases, supra, and are controlled by our decision therein. Upon the point that the jurisdiction of the court extends to enjoining the collection of illegal taxes, whether assessed for state or for local purposes, the present cases are controlled by the decision in the Louisville & Nashville R. Co. cases. This disposes of all assignments of error filed by the cross appellants (defendants below). In these cases, as in those last mentioned, it is earnestly insisted by plaintiff that the district court erred in holding that the Kentucky statutes, properly construed, require first an apportionment of a proper share of the total 'capital stock' value to Kentucky, followed by a deduction from Kentucky's proportion thereof of the value of its tangible property in the state, instead of holding that the total tangible property in and out of Kentucky should first be deducted from the total capital stock value before apportionment to the state. We need only repeat what was said in the Louisville & Nashville Cases, that this is a question of state law that has been definitely passed upon by the Kentucky court of appeals in Com. v. Covington & C. Bridge Co. 114 Ky. 343, whose decision the district court properly followed. We come to questions peculiar to the present cases. For the year 1912 the Board of Valuation and Assessment made a preliminary assessment of the franchise at $21,500,000, of which notice was given to plaintiff, and, after a hearing, finally assessed the franchise at $14,746.857,—a result reached, as already stated, by taking Kentucky 'capital stock' at $27,124,240, and deducting the tangible property assessment of $12,377,383. In granting the preliminary injunction (209 Fed. 465), the court, deeming that the Board had found the fair cash value of the portion of plaintiff's capital stock in the state to be $27,124,340, equalized this with the undervaluation of other property in the state on a basis of 70 per cent in order to arrive at a proper valuation of the franchise for the purposes of a temporary injunction. Upon the final hearing, the court reached the conclusion that the valuation of $27,124,240 was itself the result of an equalization by the Board at 80 per cent of what they had found to be the fair cash value of the capital stock in Kentucky; that is to say, that they had found the fair cash value to be $33,905,300. Having concluded that equalization should be made upon the basis of 60 per cent, the court applied this percentage to the $33,905,300, making the equalized capital stock value $20,343,180, deducting from which the assessed value of the tangibles, $12,377,383, left $7,965,797 as the value of the franchise. Plaintiff contends that there was no sufficient evidence to support the conclusion that the Board's valuation of $27,124,240 was the result of an 80 per cent equalization; but the contention is clearly unfounded. There is a similar contention, equally unfounded, with respect to the mode in which the district court applied the 60 per cent equalization factor to the 1913 valuation. As to the mode in which the Board arrived at a capital stock valuation for the entire system, and the mode in which the Kentucky apportionment was arrived at, several contentions are made by plaintiff besides the one of which we already have disposed. They are: (a) that when the Board capitalized earnings as an index to value they took 6 per cent as a basis instead of 7 1/2 or 8 per cent, either of which is said to be a more proper rate upon the ground that, because of annual unproductive items of expense, amounting to nearly or quite 2 per cent of plaintiff's capitalization, the higher rate is necessary in order to yield a net 6 per cent return upon the investment; (b) that when the stock-and-bond method was employed as an index to value the highest instead of the average market prices were employed; (c) that in capitalizing earnings gross income was used, although it included income from investments in the company's treasury, instead of net operating income, which, it is insisted, is the proper factor; (d) that plaintiff in each year had in its treasury, at its principal office without the state, large amounts of investment securities that improperly were included in the sum found as the value of its aggregate capital stock and apportioned in part to Kentucky; and (e) that plaintiff owned large and costly terminals at Chicago, New Orleans, Memphis, and elsewhere outside of Kentucky, causing a great excess value, mile for mile, of plaintiff's lines outside the state as compared with those inside, and that this excess value was not eliminated either before or after the apportionment to Kentucky. The first three points relate to valuation, the last two to apportionment. The district court properly held that the action of the Board must be sustained unless it was made to appear that they had adopted a fundamentally wrong principle, or had been guilty of fraud. It held further, that no fundamentally wrong principle was involved in determining whether such a railroad system should be valued on the capitalization-of-income or on the stock-and-bond plan; or, if the former, what rate of interest should be used in capitalizing, or how many years' earnings should be considered, or what was in fact the amount of net income for a given year; or, if the stock-and-bond plan was adopted, what was the value of the stock and bonds; and that on these and similar matters the action of the Board, in the absence of fraud, was binding upon the court. In this we concur. The claim for an allowance by reason of the treasury securities and the terminals situate in other states is based upon the principle laid down in Fargo v. Hart, 193 U. S. 490, 499, 48 L. ed. 761, 765, 24 Sup. Ct. Rep. 498, and similar cases, to which we adhere, that a state cannot tax property outside of its jurisdiction, belonging to persons domiciled elsewhere, and that although the fact that property is part of a system and has its actual uses only in connection with other parts of the system may be considered by the state in taxing that portion of the system which is within its borders, yet the notion of organic unity must not be made the means of unlawfully taxing property without the state. As to the terminals, the district court held that since it did not appear but that the Board made due allowance on account of them, it must be presumed that they did make such an allowance. As to the treasury securities, the court held that plaintiff had not made an adequate showing to the Board of Valuation and Assessment; that it did not appear but that the Board had given proper consideration to them; and that plaintiff had not put the court in possession of the evidence upon which to determine whether the securities were a part of its 'unit,' or why the securities were held by plaintiff instead of being distributed to the stockholders, and that the case of Coulter v. Weir, 62 C. C. A. 429, 127 Fed. 897, 909-911, did not apply because there the property in question had been placed in the hands of trustees for the benefit of stockholders. Upon petitions for rehearing, plaintiff insisted that if the treasury securities were to be taken as a part of the unit, then, since these securities represented a controlling interest in certain large lines of railroad lying outside of Kentucky (the Central of Georgia, the Yazoo & Mississippi Valley, and the Indianapolis Southern systems), the apportionment should take the mileage of these controlled lines into account, which would have yielded a total mileage of all lines amounting to 7,862.95, and Kentucky mileage 560.49, or only 7.13 per cent for the year upon which the 1912 assessment was based, and a somewhat smaller percentage for the following year. To this the court responded that the contention came too late, and it cannot be said that this was an unreasonable view, or showed an abuse of discretion. In addition to the averments respecting comparative mileage contained in the original bills, it was distinctly stated in an amended bill in the case pertaining to the 1912 assessment that the treasury securities in question had not 'any connection whatever with the business of transportation carried on by complainant, and that none of said stocks, bonds, or other properties covered or represented the physical railroads or other properties operated by complainant.' In criticism of the conclusions of the court upon these and some other points, a most elaborate argument is submitted; but we see no sufficient ground for disturbing the decision. Decrees affirmed. Mr. Justice Holmes, Mr. Justice Brandeis, and Mr. Justice Clarke dissent in Nos. 643 and 645. In Nos. 642 and 644 they concur in the result.

243.US.617

The Georgia Employers' Liability Act, Georgia Code of 1911, § 2783, eliminates the defenses of assumed risk and contributory negligence when a violation of the Federal Safety Appliance Acts contributes to cause the injury. Under the Federal Safety Appliance Acts carriers in Interstate Commerce are liable in damages to their employees, injured in the discharge of duty, whenever the failure to comply with those acts is the proximate cause of injury and without reference to the physical position occupied by the employee or the nature of the work upon which he is engaged at the time when the injury occurs. So held in a case where failure of couplers to work automatically in a switching operation resulted in a collision of cars from one of which the plaintiff was thrown to his injury while preparing to release brakes. 145 Georgia, 886, affirmed. THE case is stated in the opinion.

The plaintiff below was a switchman in the employ of the defendants when he suffered the injury for which he recovered the judgment which was affirmed by the supreme court of Georgia, and which is here for review on writ of error. The facts essential to an understanding of the question presented for decision are as follows: A train of many cars standing on a switch was separated by about two car lengths from five cars on the same track loaded with coal. An engine, pushing a stock car ahead of it, came into the switch, and failed in an attempt to couple to the five cars, but struck them with such force that, although the engine with the car attached stopped within half a car length, the five loaded cars were driven over the two intervening car lengths and struck so violently against the standing train that the plaintiff, who was on one of the five cars for the purpose of releasing the brakes, was thrown to the track, with the result that his right arm was crushed by the wheels and was amputated below the elbow. The recovery in the case was on the first count of the petition, which alleges that the defendants were carriers of interstate commerce, and that they were negligent, among other things, in permitting the use of the car attached to the engine and of the car to which the attempt was made to couple it, without such cars being equipped with automatic couplers, which would couple by impact, as required by law, the claim being that if the cars had coupled when they came together, the five cars of coal would not have run down against the others, causing the shock which threw the plaintiff under the wheels. The purpose of this allegation with respect to automatic couplers was to make applicable to the case the Georgia Employers' Liability Act, which provides that an injured employee shall not be held guilty of either contributory negligence or of having assumed the risk when the violation of any statute enacted for his safety contributed to his injury. The defendants admit that they were interstate carriers of commerce, and that the plaintiff was in the performance of his duty when he was thrown the car, as he claims, or fell, as the defendants claim, but they deny all allegations of negligence. On this state of pleading and of fact the court charged the jury that before the plaintiff could recover on his allegation that the cars were not properly equipped with automatic couplers, 'he must have shown to your satisfaction, by a preponderance of the evidence,' either that the cars had never been equipped with proper couplers, or that, if they had been so equipped, they were in such condition that they would not couple automatically by impact, and that such failure to so equip them contributed to cause the injury. Upon this charge of the court the verdict was against the defendant, and on it is based the only claim of error of sufficient substance to be noticed. It is admitted by the defendants that the reference in the Georgia Employers' Liability Act to 'any statute enacted for the safety of employees' is to the Federal Safety Appliance Act, and that the charge is a proper one if that act, as amended, is applicable to a switchman engaged as the plaintiff was when he was injured; but the claim is that it is not so applicable because it is intended only for the benefit of employees injured when between cars for the purpose of coupling or uncoupling them. This claim is based wholly upon the expression, 'without the necessity of men going between the ends of cars,' following the automatic coupler requirement of § 2 of the Act of 1893 [27 Stat. at L. 531, chap. 196, Comp. Stat. 1913, § 8606], and it is urged in argument that this case is ruled by St. Louis & S. F. R. Co. v. Conarty, 238 U. S. 243, 59 L. ed. 1290, 35 Sup. Ct. Rep. 785. In that case, however, it was not claimed that the collision resulting in the injury complained of was proximately attributable to a violation of the Safety Appliance Acts, and therefore the claim made for it cannot be allowed. The declared purpose of the Safety Appliance Act of 1893 (27 Stat. at L. chap. 196, p. 531, Comp. Stat. 1913, § 8605), and of the amendatory Acts of 1903 [32 Stat. at L. 943, chap. 976, Comp. Stat. 1913, § 8613] and of 1910 [36 Stat. at L. 298, chap. 160, Comp. Stat. 1913, § 8617], is 'to promote the safety of employees . . . upon railroads, by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers . . . and for other purposes,' and at the time the plaintiff was injured these acts made it unlawful for any carrier engaged in interstate commerce to use on its railroad any car not so equipped. Southern R. Co. v. United States, 222 U. S. 20, 56 L. ed. 72, 32 Sup. Ct. Rep. 2, 3 N. C. C. A. 822; Southern R. Co. v. Railroad Commission, 236 U. S. 439, 59 L. ed. 661, 35 Sup. Ct. Rep. 304. By this legislation the qualified duty of the common law is expanded into an absolute duty with respect to car couplers, and if the defendant railroad companies used cars which did not comply with the standard thus prescribed, they violated the plain prohibition of the law, and there arose from that violation a liability to make compensation to any employee who was injured because of it. St. Louis, I. M. & S. R. Co. v. Taylor, 210 U. S. 281, 295, 52 L. ed. 1061, 1068, 28 Sup. Ct. Rep. 616, 21 Am. Neg. Rep. 464; Chicago, B. & Q. R. Co. v. United States, 220 U. S. 559, 55 L. ed. 582, 31 Sup. Ct. Rep. 612; Texas & P. R. Co. v. Rigsby, 241 U. S. 33, 60 L. ed. 874, 36 Sup. Ct. Rep. 482; Illinois C. R. Co. v. Williams, 242 U. S. 462, 61 L. ed. 437, 37 Sup. Ct. Rep. 128. While it is undoubtedly true that the immediate occasion for passing the laws requiring automatic couplers was the great number of deaths and injuries caused to employees who were obliged to go between cars to couple and uncouple them, yet these laws as written are by no means confined in their terms to the protection of employees only when so engaged. The language of the acts and the authorities we have cited make it entirely clear that the liability in damages to employees for failure to comply with the law springs from its being made unlawful to use cars not equipped as required,—not from the position the employee may be in, or the work which he may be doing at the moment when he is injured. This effect can be given to the acts and their wise and humane purpose can be accomplished only by holding, as we do, that carriers are liable to employees in damages whenever the failure to obey these Safety Appliance Laws is the proximate cause of injury to them when engaged in the discharge of duty. The jury found that the plaintiff's case came within this interpretation of the statute, and the judgment of the Supreme Court of Georgia must be affirmed.

246.US.104

The Cherokee Agreement of July 1, 1902, c. 1375,32 Stat. 716, imposed no restriction, other than that of minority, upon the alienation by the heir of his interest in land allotted under § 20 in the name of an ancestor who died before receiving an allotment. The Act of April 26, 1906, c. 1876, 34 Stat. 137, § 22, applied to allotments made before its date under § 20 of the Cherokee Agreement (Braderv . James, ante, 88,) and required that a guardian's contract, made on May 11, 1906, to convey the minor's interest in such an allotment, be approved by the United States court for the Indian Territory, as a condition to the validity of the contract. 46 Oklahoma, 550, affirmed.

This suit was brought by H. B. Talley in the district court of Tulsa county, Oklahoma, for the specific performance of a certain contract entered into by Nora B. Burgess, mother and guardian of the defendant in error, Daniel S. Burgess, a minor, with the law firm of Talley & Harnage. Harnage refusing to join in this action it was brought by Talley alone. Harnage was made a defendant to the suit. The petition sets forth that the contract was for professional services in consideration of which the attorneys were to receive a one-half interest in the one-third interest of the defendant in error, Daniel S. Burgess, in certain Cherokee allotted land. The contract was made on May 11, 1906, and the allotment in question was embraced in a selection of land made by Nora B. Burgess as administratrix of the estate of John S. Burgess, the latter, the father of Daniel S. Burgess, having died without having selected or received an allotment. The petition states that on May 11, 1906, Talley & Harnage entered into contracts with the other heirs of John S. Burgess similar to those entered into with the defendant in error. The land in controversy, it is set forth, was originally allotted to defendant's mother, an intermarried Cherokee Indian, but the attorneys procured a cancellation of that allotment and then another allotment of the same in the name of the defendant's father, this allotment being selected by the administratrix in his right. The petition avers that defendant's share had been set apart to him, and that at the time of the beginning of the suit he was in the quiet enjoyment thereof. The district cou t appointed a guardian ad litem for the defendant in error, Daniel Burgess, and a motion was filed, treated in the courts below as a demurrer, and the trial court held that under the statutes of the United States the guardian could not dispose of the ward's property, as she had undertaken to do, except under order of the proper United States court on petition filed for that purpose; and that the attempted sale by the guardian without court procedure was void. On error the Supreme Court of Oklahoma affirmed the judgment of the district court of Tulsa county. 46 Okl. 550, 149 Pac. 120. The case as presented in this court involves two questions: (1) Whether the Act of April 26, 1906, c. 1876, 34 Stat. 137, is applicable to the present suit. (2) If applicable, whether conveyances of the kind here involved, of the ward's interest in the allotted lands, could be made by his guardian without an order of court. The land was allotted under the Cherokee Agreement, 32 Stat. 716, which provides in section 11 for allotment by the Commission to the Five Civilized Tribes to each citizen of the Cherokee Tribe, after approval by the Secretary of the Interior of the enrollment provided, of land equal in value to 110 acres, to be selected by each allottee so as to include his improvements. Section 13 provides for the designation of a homestead out of said allotment equal in value to forty acres of the lands of the Cherokee Nation, to be inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of the allotment. Section 14 provides that lands allotted to citizens shall not in any manner be encumbered, taken, or sold to secure or satisfy any debt or obligation, or be alienated by the allottee or his heirs, before the expiration of five years from the date of the ratification of the act. Section 15 provides that all lands allotted to the members of the tribe, except such as are set aside for a homestead, shall be alienable five years after issuance of patent. Section 20 provides: 'If any person whose name appears upon the roll prepared as herein provided shall have died subsequent to the first day of September nineteen hundred and two, and before receiving his allottment, the lands to which such person would have been cntitled if living shall be allotted in his name, and shall, with his proportionate share of other tribal property, descend to his heirs according to the laws of descent and distribution as provided in chapter forty-nine of Mansfield's Digest of the Statutes of Arkansas: Provided, that the allotment thus to be made shall be selected by a duly appointed administrator or executor. If, however, such administrator or executor be not duly and expeditiously appointed, or fails to act promptly when appointed, or for any other cause such selection be not so made within a reasonable and proper time, the Dawes Commission shall designate the lands thus to be allotted.' It may be regarded as established that the Cherokee Agreement, in view of the sections just considered, imposes no restrictions upon alienation of the interest in the land thus going to the heir, other than that of minority. Mullen v. United States, 224 U. S. 448, 32 Sup. Ct. 494, 56 L. Ed. 834; Skelton v. Dill, 235 U. S. 206, 35 Sup. Ct. 60, 59 L. Ed. 198; Adkins v. Arnold, 235 U. S. 417, 35 Sup. Ct. 118, 59 L. Ed. 294. However, the agreement upon which this suit was brought was made after the passage of the Act of April 26, 1906, a statute with which this court has had occasion to deal in recent decisions. Its scope and purpose were dealt with in Brader v. James, 246 U. S. 88, 38 Sup. Ct. 285, 62 L. Ed. ——, just decided. That act, as its title indicates, is a comprehensive one for the final disposition of the affairs of the Five Civilized Tribes. Section 22 provides: 'That the adult heirs of any deceased Indian of either of the Five Civilized Tribes whose selection has been made, or to whom a deed or patent has been issued for his or her share of the land of the tribe o which he or she belongs or belonged, may sell and convey the lands inherited from such decedent; and if there be both adult and minor heirs of such decedent, then such minors may join in a sale of such lands by a guardian duly appointed by the proper United States Court for the Indian Territory. And in case of the organization of a state or territory, then by a proper court of the county in which said minor or minors may reside or in which said real estate is situated, upon an order of such court made upon petition filed by guardian. All conveyances made under this provision by heirs who are full-blood Indians are to be subject to the approval of the Secretary of the Interior, under such rules and regulations as he may prescribe.' It is contended that this section applies only to heirs of a deceased Indian whose selection has been made by himself, or to whom a deed or patent has been issued for his or her share of the land of the tribe to which the decedent belonged. But in our view Congress in the passage of section 22 had in contemplation that Indians duly enrolled and entitled to share in the tribal property and lands might die before receiving the allotment to which he, or she, was entitled. Congress had made provision in section 20 of the Cherokee Agreement that such land might be allotted in the name of the deceased, and should with the proportionate share of the other tribal property descend to the heirs of the one who would have been entitled, if living. It also provided that the selection for a decedent should be made by a duly appointed administrator or executor, or, in default of such selection, the Dawes Commission should designate the land to be allotted. We think minor heirs who thus receive lands are within the meaning and purpose of the statute, as much so as they would have been had the land been selected by the ancestor in his lifetime. Section 22 being applicable to a conveyance of a minor's lands in the situation here presented, we come to the question whether the guardian could legally make disposition thereof without an order of the court of the United States for the Indian Territory. It is contended that section 22, as enacted, makes the requirement as to the order of the court applicable only after organization of a state or territory. Literally read the statute might lend itself to such interpretation. But minor heirs are required to join in the sale of the lands by a guardian duly appointed by the proper United States Court for the Indian Territory. The next sentence specifically provides that the order of sale must be made upon petition filed by the guardian in the proper court of the county in which the land is situated. These provisions, read together, and construing the statute in the light of the purpose to be accomplished, we think, require court approval in both instances. It is not denied that the United States Court for the Territory would have had jurisdiction of a proceeding by a guardian for an order to sell the ward's interests in the lands. See Robinson v. Long Gas Co. (C. C. A. 8 Cir.) 221 Fed. 398, 136 C. C. A. 642, where the applicable statutes are set out and considered. We cannot believe that Congress intended after territorial or state organization to require the guardian to procure the approval and order of a court before disposition of the ward's lands, and before the organization of a territory or state to permit the guardian, who was required to be appointed by the United States Court for the Indian Territory, which court had jurisdiction over the sale of the lands of the ward upon application of the guardian, to dispose of the ward's interests in lands without judicial approval. The Supreme Court of Oklahoma did not err in holding that the Act of April 26, 1906, was applicable, and that the interests in the lands of the ward could only be sold with the approval of the United States Court for the Indian Territory, and its judgment is, therefore Affirmed.

245.US.315

Article IV, § 2, subdivision 2, of the Constitution places no limitation upon the power of the States to arrest in advance of extradition proceedings; with Rev. Stats., § 5278, it deals merely with the conditions under which one State may demand rendition from another and under which the alleged fugitive may resist compliance by the State upon which the demand is made. 147 App. Div. 557; 210 N. Y. 567, affirmed.

These actions, which were tried together in the Supreme Court of New York and argued together here, arise out of the same facts and involve the same question of law. The plaintiffs, mother and daughter, both residents of Pennsylvania, occupied the same berth in a Pullman car while traveling from their home to New York City. At Syracuse, N. Y., police officers of that city entered the car, arrested the plaintiffs, and, at the next station, removed them from the train. The officers making the arrest acted without a warrant, upon telegraphic orders from the police department of Rochester, n. Y., in the belief that one of the plaintiffs was the woman implicated in atrocious murders which had recently been committed in Indiana. Investigation soon disclosed that this belief was unfounded; and they were promptly discharged from custody. These suits were then brought against the defendant to recover damages for the annoyance and indignities suffered. Plaintiffs contended that defendant had an affirmative duty to protect them as passengers from a wrongful arrest, and had failed to perform it. The trial court refused to permit plaintiffs to go to the jury and dismissed the complaints. Exceptions to these orders were overruled by the Appellate Division (147 App. Div. 557, 132 N. Y. Supp. 628); the judgments entered for defendant were affirmed by the Court of Appeals (210 N. Y. 567, 568, 104 N. E. 1127); and the cases come here on writs of error. Plaintiffs duly claimed that they had been denied rights secured by article IV, section 2, subdivision 2, of the federal Constitution.1 The contention is that by reason of this* clause of the Constitution they could not legally be arrested in New York for a crime committed in another state, except upon compliance with the provisions of section 5278 of the Revised Statutes2 of the United States (Comp. St. 1916, § 10126); that such being the law defendant's representatives were bound to know it and to protect them, its passengers, from arrest, unless all steps had been taken which would have justified their rendition upon application of another state. But these provisions of the Constitution and statutes have no application here. They deal merely with the conditions under which one state may demand rendition from another and the alleged fugitive may resist the latter's complying with the demand.3 Here no demand had been made upon the executive of New York. Proceedings for rendition had not even been initiated. And there was no attempt at removal from the state. The arrest, so far as appears, was made by the New York police department of its own initiative. These provisions of the Constitution and federal statutes do not deal with arrest in advance of a requisition. They do not limit the power of a state to arrest, within its borders, a citizen of another state for a crime committed elsewhere; not do they prescribe the manner in which such arrest may be made. These are matters left wholly to the individual states. Whether the asylum state shall make an arrest in advance of requisition, and, if so, whether it may be made without a warrant, are matters which each state decides for itself. Such has been the uniform practice, sanctioned by a long line of decisions and regulated by legislation in many of the states.4 The alleged federal right which plaintiffs assert is not immunity from arrest without a warrant; it is immunity from arrest until after requisition granted. The Constitution grants no such immunity. To restrict the right of arrest as claimed would rob interstate rendition of much of its efficacy. As no federal right of plaintiffs was denied, the judgments must be Affirmed.

244.US.362

The Fifth Amendment does not relieve a witness from answering merely on his own declaration or judgment that an answer might incriminate him; whether he must answer is determinable by the trial court in the exercise of its sound discretion; and unless there.is reasonable ground, as distinct from a remote or speculative possibility, to apprehend that a direct answer may prove dangerous to the witness, his answer should be compelled. In the absence of manifest error, the ruling of a trial judge upon a witness' objection that an answer may incriminate him, will not be reversed by this court. Affirmed.

Plaintiffs in error were separately called to testify before a grand jury at Nome, Alaska, engaged in investigating a charge of gambling against six other men. Both were duly sworn. After stating that he was sitting at a table in the Arctic Billiard Parlors when these men were there arrested, Mason refused to answer two questions, claiming so to do might tend to incriminate him. (1) 'Was there a game of cards being played on this particular evening at the table at which you were sitting?' (2) 'Was there a game of cards being played at another table at this time?' Having said that at the specified time and place he, also, was sitting at a table, Hanson made the same claim and refused to answer two questions. (1) 'If at this time or just prior to this time that yourself and others were arrested in the Arctic Billiard Parlors if you saw anyone there playing 'stud poker' or 'pangingi'?' (2) 'If at this same time you saw anyone playing a game of cards at the table at which you were sitting?' The foreman of the grand jury promptly reported the foregoing facts and the judge at once heard the recalcitrant witnesses; but as the record contains no detailed statement of what then occurred we cannot know the exact circumstances. The court, being of opinion 'that each and all of said questions are proper and that the answers thereto would not tend to incriminate the witnesses,' directed them to return before the grand jury and reply. Appearing there, Mason again refused to answer the first question propounded to him, but, half yielding to frustration, said in response to the second, 'I don't know.' Hanson refused to answer either question. A second report was presented by the foreman; the witnesses were once more brought into court; and after hearing evidence adduced by both sides and arguments of counsel they were adjudged in contempt. It was further ordered 'that they each be fined in the sum of $100, and that they each be imprisoned until they comply with the orders of the court by answering the questions.' Immediately following this order they made answers, but these are not set out in the record. The fines are unpaid; and we are asked to reverse the trial court's action in undertaking to impose them because it conflicts with the inhibition of the 5th Amendment that no person 'shall be compelled in any criminal case to be a witness against himself.' During the trial of Aaron Burr and 'Re Willie,' Fed. Cas. No. 14,692e, the witness was required to answer notwithstanding his refusal upon the ground that he might thereby incriminate himself. Chief Justice Marshall announced the applicable doctrine as follows: 'When two principles come in conflict with each other, the court must give them both a reasonable construction, so as to preserve them both to a reasonable extent. The principle which entitles the United States to the testimony of every citizen, and the principle by which every witness is privileged not to accuse himself, can neither of them be entirely disregarded. They are believed both to be preserved to a reasonable extent, and according to the true intention of the rule and of the exception to that rule, by observing that course which it is conceived courts have generally observed. It is this: When a question is propounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness. If this be decided in the negative, then he may answer it without violating the privilege which is secured to him by law. If a direct answer to it may criminate himself, then he must be the sole judge what his answer would be.' The constitutional protection against self-incrimination 'is confined to real danger, and does not extend to remote possibilities out of the ordinary course of law.' Heike v. United States, 227 U. S. 131, 144, 57 L. ed. 450, 455, 33 Sup. Ct. Rep. 226, Ann. Cas. 1914C, 128; Brown v. Walker, 161 U. S. 591, 599, 600, 40 L. ed. 819, 821, 822, 5 Inters. Com. Rep. 369, 16 Sup. Ct. Rep. 644. In Reg. v. Boyes (1861) 1 Best & S. 311, 329, 330, 121 Eng. Reprint, 730, Cockburn Ch. J., said: 'It was also contended that a bare possibility of legal peril was sufficient to entitle a witness to protection; nay, further, that the witness was the sole judge as to whether his evidence would bring him into danger of the law; and that the statement of his belief to that effect, if not manifestly made mala fide, should be received as conclusive. With the latter of these propositions we are altogether unable to concur. . . . To entitle a party called as a witness to the privilege of silence, the court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer. We indeed quite agree that, if the fact of the witness being in danger be once made to appear, great latitude should be allowed to him in judging for himself of the effect of any particular question: . . . A question which might appear at first sight a very innocent one might, by affording a link in a chain of evidence, become the means of bringing home an offense to the party answering. Subject to this reservation, a judge is, in our opinion, bound to insist on a witness answering unless he is satisfied that the answer will tend to place the witness in peril. 'Further than this, we are of opinion that the danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things,—not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct. We think that a merely remote and naked possibility, out of the ordinary course of law and such as no reasonable man would be affected by, should not be suffered to obstruct the administration of justice. The object of the law is to afford to a party, called upon to give evidence in a proceeding inter alios, protection against being brought by means of his own evidence within the penalties of the law. But it would be to convert a salutary protection into a means of abuse if it were to be held that a mere imaginary possibility of danger, however remote and improbable, was sufficient to justify the withholding of evidence essential to the ends of justice.' The statement of the law in Reg. v. Boyes was expressly approved by all the judges in Ex parte Reynolds (1882) L. R. 20 Ch. Div. 294, 51 L. J. Ch. N. S. 756, 46 L. T. N. S. 508, 30 Week. Rep. 651, 46 J. P. 533. Similar announcements of it may be found in Ex parte Irvine, 74 Fed. 954, 960; Ward v. State, 2 Mo. 120, 122, 22 Am. Dec. 449; Ex parte Buskett, 106 Mo. 602, 608, 14 L.R.A. 407, 27 Am. St. Rep. 378, 17 S. W. 753, 9 Am. Crim. Rep. 754. The general rule under which the trial judge must determine each claim according to its own particular circumstances, we think, is indicated with adequate certainty in the above-cited opinions. Ordinarily, he is in much better position to appreciate the essential facts than an appellate court can hold, and he must be permitted to exercise some discretion, fructified by common sense, when dealing with this necessarily difficult subject. Unless there has been a distinct denial of a right guaranteed, we ought not to interfere. In the present case the witnesses certainly were not relieved from answering merely because they declared that so to do might incriminate them. The wisdom of the rule in this regard is well illustrated by the enforced answer, 'I don't know,' given by Mason to the second question, after he had refused to reply under a claim of constitutional privilege. No suggestion is made that it is criminal in Alaska to sit at a table where cards are being played, or to join in such game unless played for something of value. The relevant statutory provision is § 2032, Compiled Laws of Alaska 1913, copied in the margin.1 The court below evidently thought neither witness had reasonable cause to apprehend danger to himself from a direct answer to any question propunded, and, in the circumstances disclosed, we cannot say he reached an erroneous conclusion. Separate errors are also assigned to the trial court's action in permitting counsel to introduce two documents in evidence; but we think the points are without substantial merit. The judgment under review is affirmed.

245.US.330

Under the National Banking Act the Comptroller has discretionary power to withdraw an assessment on shareholders before it is paid, or when partly paid. Upon the evidence, held, that certain sums paid by savings banks to the receiver of a national bank in which they held shares were intended to be applied against their liabilities under the National Banking Act, to enforce which an assessment, made by the Comptroller, was then outstanding. A second assessment, exceeding the differences between their statutory liabilities and the amounts so paid, was void. In determining the effect of certain payments made by the trustees of savings banks, the court here assumes, in the absence of contrary evidence, that it was the purpose of the trustees to act within their powers, and heeds the settled rule that when neither debtor nor creditor has applied payments before the controversy has arisen the courts will apply them in a manner to accomplish the ends of justice. 218 Fed. Rep. 814, affirmed.

These two cases are appeals from the Circuit Court of Appeals for the First Circuit, which were heard and will be decided together. The Pynchon National Bank of Springfield, Mass., with a capital stock of $200,000, divided into 2,000 shares of $100 each, became insolvent and in June, 1901, the Comptroller of the Currency appointed a receiver to liquidate its affairs. Upon examination there were found among its assets bonds of the American Writing Paper Company, of the par value of $577,000, which the bank had purchased at a discount, but which, at the time of the transaction we are about to consider, had so depreciated that they were worth on the market only 65 cents on the dollar. A consideration of the condition of the bank resulted on March 18, 1902, in an assessment by the Comptroller on the shareholders of their full statutory liability of 100 per cent., payable on the 15th day of the following May. Thereupon a plan was devised under which it was proposed that all of the shareholders, except the three defendant savings banks, should purchase from the receiver the paper company bonds at 95 cents on the dollar, each shareholder to purchase one bond of $1,000 for every three shares of stock owned by him. This purchase price was an advance over the market price of 30 cents on the dollar and the excess payment by each shareholder would equal 82 per cent. of the assessment which had been made by the Comptroller. Because they lacked corporate power to invest in such bonds the savings banks with the approval of the Comptroller and shareholders were to pay to the receiver the required advance over the market price without purchasing their quota of the bonds. The Comptroller cordially approved of this proposed purchase, and in a letter to the board of directors of the insolvent bank, the contents of which were intended to be and were communicated to its shareholders while the plan was under consideration, he stated that it would result in a settlement of the affairs of the bank highly satisfactory for all interests concerned, and that he was satisfied that if such sale of the bonds were made the receiver would be able to promptly pay all of the creditors in full, but that if the plan failed and it became necessary to sell the bonds on the market there would be no escape from an assessment of 100 per cent. against the shareholders. This proposed settlement was approved by all of the shareholders, and the defendant banks made payment to the receiver as follows: The Springfield Institution for Savings, $30,360.17; the Springfield Five Cents Savings Bank, $9,820; and the Hampden Savings Bank, $5,319.16. For these payments the banks did not receive any consideration other than the joining of the other shareholders in the plan, together with the anticipated saving of 18 per cent. of the assessment which the Comptroller had made against them. The bonds allotted the banks were sold at the market price. After the completion of this bond transaction, the receiver, under instructions from the Comptroller, on July 22, 1902, wrote to the shareholders as follows: 'Large amounts of securities sold make it probable that the payment of the assessment will not be required. The Comptroller has accordingly decided to withdraw this assessment and I have been instructed to suspend any action to enforce its payment. This withdrawal is made, however, without prejudice to the right of the Comptroller to levy and collect any assessment or assessments that may hereafter be necessary.' The results anticipated from this action on the part of the shareholders were not realized, and in order to satisfy the still unpaid debts of the bank and interest and costs of administration, the Comptroller on December 28, 1906, made a second assessment of $49 on each share of stock. The banks refusing to pay this second assessment, this suit was instituted against them in the District Court, and resulted in a holding in favor of the defendants, which was affirmed by the Circuit Court of Appeals in the decision which is now under review. It will be necessary to consider but two questions, viz.: (1) Was the second assessment invalid because the Comptroller did not withdraw and had no legal authority to withdraw the first assessment? and (2) was it the understanding that the payments made by the savings banks should be applied on the assessment for their statutory liability, so that they remained liable for only 18 per cent. additional? From the earliest days of the administration of the National Banking Act to this case attempts have been made in many forms to give to it a technical construction which would so restrict the powers of the Comptroller as to greatly delay and impede the settlement of the affairs of insolvent banks. But this court has uniformly declined to narrow the act by construction and has placed a liberal interpretation upon its provisions to promote its plain purpose of expeditiously and justly winding up the affairs and paying the debts of such unfortunate institutions. Studebaker v. Perry, 184 U. S. 258, 22 Sup. Ct. 463, 46 L. Ed. 528; Kennedy v. Gibson, 8 Wall. 498, 19 L. Ed. 476; United States v. Knox, 102 U. S. 422, 26 L. Ed. 216; Bushnell v. Leland, 164 U. S. 684, 17 Sup. Ct. 209, 41 L. Ed. 598; and Bowden v. Johnson, 107 U. S. 251, 2 Sup. Ct. 246, 27 L. Ed. 386. There is nothing in the act to prevent the Comptroller from withdrawing an assessment before it is paid, or when it is partly paid, if it should be concluded that further payment is not necessary, and no form is prescribed in which such action shall be taken by him. A large executive discretion is given to the Comptroller in this respect to adjust the assessments made to the exigencies of each case, so that the shareholders may not be burdened by paying more than is necessary or at a time when the money for any reason cannot be advantageously used. The wisdom of giving such large discretion to the Comptroller finds excellent illustration in the case before us. All persons interested in this bond transaction were convinced in July, 1902, that further payment than that which had been made would not be needed, and a construction should not be given to the act, its specific terms not requiring it, which would prevent such action as was taken by the Comptroller in withdrawing for the time being the unpaid portion of the first assessment. We conclude that the claim that the Comptroller did not have power to recall the first assessment in whole or in part is unsound in principle and wholly unsupported by the terms of the act or by court decisions. The remaining question is: Was it the understanding that the payments to the receiver should be applied upon the statutory liability of the savings banks for which assessment, then in full force, had been made-by the Comptroller? The case was tried in large part upon a stipulation as to the facts, which contains the following: 'Inasmuch as it was ultra vires of savings banks under the statutes of the commonwealth, as the receiver and comptroller at the time well knew, to purchase such bonds as an investment, it was arranged with the knowledge and approval of the comptroller and the receiver that the savings banks in question, instead of purchasing their proportion of the bonds, should pay the difference between their market value and what the national bank paid for them.' The checks of the banks were received 'without any agreement on the part of the Comptroller or receiver that the payments thereby made should in whole or in part discharge the liability of the savings banks for or on account of the indebtedness of the national bank and any stock assessments, excepting so far if at all, as such agreement or obligation may be lawfully implied from the facts stated in this stipulation and such evidence as may be introduced.' It is argued for the receiver that if it had been understood or intended that the payments by the banks should be credited on the outstanding assessment this would very certainly have found written expression, if not elsewhere, in the receipts given and received for the payments. It is notable that, although this bond purchase involved more than half a million dollars, the terms and purposes of it were not expressed in any writing, either between the shareholders themselves or between the receiver and the shareholders, which indicates that the transaction, while large, seemed simple to the men of affairs engaged in it, and that to their minds, at least, the implication from the payments to be made could not be doubtful. The shareholders who purchased the bonds had the prospect—how valuable it was the record does not indicate, but still a prospect—of recouping their losses through a later increase in the market value of the bonds, but the savings banks had no such prospect, because, not having legal authority to make such purchase, their payment of what equaled 82 per cent. of the assessment against them was a naked payment, without chance of reimbursement, in whole or in part, from any source. The evidence introduced in addition to the stipulation of facts is slight, consisting of contemporaneous entries in the corporation record and account books of the banks, and the indorsement on the checks by which payment was made. This evidence is not conclusive, but the implications from it, such as they are, are favorable to the contention of the banks. Since no clearly definite expression is found in the record either that these payments were or were not to be applied on the shareholding liability of the savings banks, we are required to decide which contention of the parties is the more reasonable and probable, having regard to all the facts and circumstances, stipulated and proved in the case. There being no evidence to the contrary, we must adopt the assumption of ordinary life and of law that the trustees for the savings banks acted lawfully, within the limits of their powers, and we must also have regard to the long-settled rule of law that where neither the debtor nor the creditor has applied payments before controversy has arisen, the courts will make application of them in a manner to accomplish the ends of justice. United States v. Kirkpatrick, 9 Wheat. 720, 6 L. Ed. 199; National Bank v. Mechanics' Bank, 94 U. S. 437, 439, 24 L. Ed. 176. When to this we add that natural justice, as distinguished from a technical conclusion, requires that the savings banks be allowed credit for the payments that they have made, since thereby the creditors of the insolvent bank may get the benefit of the full statutory liability of the shareholders without a new and unanticipated obligation being imposed on the stockholding banks, we are compelled to resolve any doubt in which the record might otherwise leave us in favor of the defendants. It is impossible for us to conclude that the officials of these savings banks, trustees as they were for their depositors and stockholders, and having in mind the limitations on their powers, as the stipulation declares that they and the receiver did have, should have made these considerable payments in such a manner as not to at all diminish the statutory liability of their banks, especially since payments not made to be applied on the assessment would be substantially unauthorized gifts, for, as we have said, the banks had no prospect, as the other stockholders had, of being reimbursed for such payments by the possible rise in the market value of the bonds. It results that the decree of the Circuit Court of Appeals must be affirmed, but not on the ground stated in the opinion of that court, and that the second assessment must be held void because excessive. This, however, without prejudice to the making of another assessment by the Comptroller upon the shareholding banks for the difference, if needed, between the amount paid and the amount of an assessment for the full statutory liability. Affirmed. Mr. Justice VAN DEVANTER and Mr. Justice PITNEY dissent.

244.US.285

The following patents, viz., No. 538,809, of May 7, 1895, No. 691,332, of January 14, 1902, and No. 721,644, of February 24, 1903, all granted to one Wolhaupter for alleged new and useful improvements in railroad tie plates, are here examined in respect of certain of their claims in comparison with the prior art, and are held invalid for want of novelty and invention. Flanges and teeth projecting from the under surfaces of tie plates, for the purpose of holding them to the ties, and flanges or shoulders on the upper surfaces, designed to receive and resist the lateral thrust of the rails and thus preserve the gauge of the track, having been described in earlier patents and become well known, invention in the Wolhaupter plates is left to depend upon the method of combining strength with economy -by providing flanges upon the upper surfaces for the rails to rest upon; but this feature also, besides having been in substance anticipated by earlier patents, is held to be no more than the product of ordinary mechanical skill, 'since resort to channels, grooves and corrugations was a familiar method of reducing the cost of iron plates by reducing their weight without decreasing their strength. A patentee is presumed to have had all prior patents before him when he applied for his patent. Mere carrying forward of the original thought, a change only in form, proportions or degree, doing the same thing in the same way, by substantially the same means, with better results, is not such invention as will sustain a patent. Patents claiming merely improvements in devices already well exploited in the prior art must be limited strictly to the forms described in the claims. 213 Fed. Rep. 789, affirmed.

On March 26, 1909, the Railroad Supply Company, petitioner, commenced this suit against the Elyria Iron & Steel Company in the circuit (now district) court for the northern district of Ohio, claiming infringement of claim No. 8 of United States letters patent No. 538,809, granted May 7, 1895, of claims Nos. 1, 2, and 3 of patent No. 691,332, granted January 14, 1902, and of claims Nos. 7 and 9 of patent No. 721,644, granted February 24, 1903. All of these patents, granted to B. Wolhaupter, were acquired by the petitioner, and each of the three purported to describe a new and useful improvement in railroad tie plates. Such proceedings were had in the case that on March 4, 1912, the district court decided that the petitioner's patents were not infringed by the device manufactured and sold by the defendant. On appeal to the circuit court of appeals for the sixth circuit, that court, on April 7, 1914, affirmed the decree of the district court, dismissing the bill, and held in its opinion that the claims of the patents relied upon were void for want of patentable novelty. This decree is now here for review on certiorari. A railroad tie plate, sometimes called a 'wear plate,' is a rectangular piece of metal, originally with both surfaces flat, designed to be placed upon the tie immediately under the rail, for the purpose of protecting the tie from the wear, which, in soft wood, is very great, incident to the vibration of the rail caused by passing engines and trains, and for the purpose of holding the rail more firmly in place than it could otherwise be held by the spikes without the plate, thereby preserving the gauge of the track. In the early days of railroading, when engines and cars were small and light, when speed was comparatively slow, and when hardwood, which held the spikes firmly in place, was abundant and cheap, such plates were little used; but the increase in weight of rails and rolling stock, the higher speed of trains, and the necessary use of the cheaper soft woods for ties, have brought them into extensive use. The general use of these plates with heavy rolling stock and traffic presented the problem of making them as strong and inexpensive as possible, and in a form such that they would adhere firmly to the ties while doing the least possible damage to the fiber of the wood. The statement of this problem shows convincingly that even at the beginning it offered a very limited field for invention, if, indeed, it presented any field at all for the exercise of that inventive genius which it is the policy of the law to protect and reward with a monopoly for seventeen years. The claims of the patents declared on are as follows: Claim 8 of Patent No. 538,809 reads: 'A railway tie plate formed on the under side with devices more or less sharpened adapted to penetrate and engage the tie, and on its upper side with a series of flanges on which the rail rests, substantially as described.' It would be difficult to write in more general terms a description of any plate, whether channeled, corrugated, grooved, or ribbed on both sides. Claims Nos. 1 and 2 of Patent No. 691,332, differ so slightly that No. 1 will suffice: 'A railway tie plate provided on its upper side with one or more flanges on which the rail may rest or by which it is directly sustained and on the under side with one or more tie-engaging flanges extending parallel with the upper flanges and directly beneath the latter, substantially as described.' Claims 7 and 9 of patent No. 721,644 are so similar that only No. 7 need be quoted: 'A tie plate provided in its rail-supporting surface with transverse grooves or channels, and at one margin of said supporting surface with a transverse rail-abutting shoulder.' Wolhaupter, the grantee of the three patents, was a civil engineer employed by a railroad company, and he testifies that he first turned his attention to tie plates for the purpose of improving them 'in the year 1893 or early in 1894,' and the earliest of his three patents in suit is dated May 7, 1895. The earliest patent for a 'wear' or tie plate by that specific name, which is shown by this record, was issued in 1881, and between that date and the date of the issuing of the first patent in suit to Wolhaupter in 1895 twenty-six patents were issued, and in the seven years between 1895 and 1902, when Wolhaupter's second patent in suit was issued, nineteen more patents were issued for various forms of this simple device. Thus it is seen that Wolhaupter came late into this narrow, and even then much exhausted, field of investigation, and in his first patent (not here in suit), dated December 11, 1894, he claims invention for placing one, or permissibly two, 'elongated divided ridges' on the under side of such a plate to engage the tie, and on the upper side a series of ridges parallel with those on the lower side, but adapted, after being rolled, to being cut away to form a seat for the rail. There is no claim as to the relative positions of the ridges on the two faces of the plate. In his second patent (the first in suit), his claim of invention is for 'one or more' flanges 'more or less sharpened' (not divided now) on the under side of the plate to engage the tie, and on the upper side a series of flanges (ridges) on which the rail may rest. The flanges (ridges) on the upper surface must not be placed vertically above the flanges or ridges on the lower, and there is no provision for cutting them away for a rail seat as in the first patent. The dominating thought of this patent is the cutting of the plate 'on a diagonal line with relation to the rail flange,' but as this form of plate is not claimed by the patentee in his later patents, and as no merit is claimed for it in the testimony in the record, it will be neglected. In his third patent Wolhaupter's inventive genius placed the flanges on the under side parallel with and directly beneath those on the upper side of the plate, instead of between them, as in the second patent, or regardless of either position, as in the first. In his fourth patent the flanges on the lower side are given a position 'transverse' to the ridges on the upper side. In the first three of petitioner's patents the flanges on both surfaces of the plate are for use parallel to the grain of the tie and transverse to the length of the rail. In the fourth patent the flanges on the under side are described in the specifications and drawings as tranverse to, but in claim four as parallel to, the grain of the tie. The minute and obviously wholly tentative variations, thus described, in the plates in the Wolhaupter patents, are fairly illustrative of the slight differences in form given to this simple device, on which this record shows forty five separate patents were granted during the twenty-two years between 1881 and 1903. This discussion of the record and reference to the respondent's patents brings us to the question, Do the claims of these patents describe an 'invention or discovery' or 'a new and useful . . . manufacture . . . or improvement thereof,' such as our patent laws were designed to protect? We have seen that long before Wolhaupter's patents, tie plates were used for the purposes for which his plates were designed. It was certainly obvious that if wedgeshaped flanges, or ribs or claws, or other downward projections, were placed on the under side of such plates, they would penetrate the ties when weight was put upon them, and thus assist in holding the rail in place. Very certainly it was also general knowledge before 1895 that if one wished to reduce the weight of a plate without loss of strength, this could be done by using channel iron, angle iron, or corrugated iron, or, which comes to the same thing, by having the plate made with flanges or ribs (Servis R. Tie Plate Co. v. Hamilton Steel & I. Co. 8 Can. Exch. 381); and the placing of flanges on the upper side of such plates to engage the outer flange of the bottom of the rail, and thus to receive the lateral thrust caused by the flanges of the wheels, tending to spread the rails, was also obvious and well known before Wolhaupter's patents. To the obviousness of the elements necessary to the solution of this problem must be added the state of the art, if such it may be called, when Wolhaupter, late in 1893 or early in 1894, began, as he says, the investigation of tie plates, and 'familiarized himself with the literature of the subject.' He testifies that he had seen the tie plates of Servis (patented 1881, No. 249,407; 1884, No. 294,816) and of Goldie (patented 1887, No. 356,760; 1890, No. 426,530; 1891, No. 457,584; 1891, No. 457,585; and 1892, No. 485,030), and he is presumed by the law to have had all prior patents before him when he applied for his patent. Duer v. Corbin Cabinet Lock Co. 149 U. S. 216, 223, 37 L. ed. 707, 710, 13 Sup. Ct. Rep. 850; Mast, F. & Co. v. Stover Mfg. Co. 177 U. S. 485, 493, 44 L. ed. 856, 860, 20 Sup. Ct. Rep. 708. In the plates of Servis, Wolhaupter saw a plate with 'a flange or flanges formed on the lower side' to engage the tie lengthwise of the grain of the wood, and, of course, transverse to the rail, and in the Goldie patents he saw in No. 457,584 'a triangular tooth-like projection' extending downward from the bottom of the plate and a raised shoulder on the upper side to receive the lateral thrust of the edge of the rail flange, and in patent No. 485,030 he saw a plate with two downward projecting ribs to engage the tie, with a shoulder on the upper side to receive the thrust of the rail, and with a 'transverse depression' in the upper surface, and bearings or flanges on each side of this depression to receive and support the base of the rail. We thus have Wolhaupter confessing that before he applied for a patent he had knowledge of tie plates with 'ridges,' 'flanges,' and 'teeth' projecting downward from the under side of them to engage the tie, differing at most only in form, and in this but slightly, from the similar downward projecting flanges 'more or less sharpened' which appear in all three of his patents in suit; that he had knowledge of plates with a shoulder on the upper surface to receive the thrust of the side of the bottom of the rail, not differing from the 'rail-abutting shoulder' shown in all three of his patents, and that he also had knowledge of the latest Goldie patented plate, with the upper surface 'channeled' by having a depression extending across the plate under the central portion of the bottom of the rail, and with a bearing on each side of it to support the rail. It is thus made very clear that the only appearance even of novelty or of invention in the Wolhaupter plates is in their having flanges on the upper surface, on which it is intended the rail shall rest, for downward extending flanges on the under side and the rail-abutting shoulder on the upper side are found in earlier patents in almost precisely the form which he gave to them. But such flanges on the upper surface of the Wolhaupter plate cannot constitute of themselves patentable invention or novelty, for it is very clear, as we have already said, that a resort to channels, grooves, and corrugations was a familiar method of reducing the weight and thereby the cost of iron plates without decreasing their strength, long before the Wolhaupter patents, and this form was, therefore, one to which any skilful mechanic would turn to accomplish the purpose that Wolhaupter claimed for it, and that others did so resort to this form is sufficiently shown by reference to the Wells patent, No. 203,570 (1878), the Wilson patent, No. 522,867 (1894), and the Dunham patent, No. 469,386 (1892). With these facts before him, the most that can be said for the patents in suit is that they gave a somewhat different form to three features which were perfectly familiar and were similarly grouped in prior forms of tie plates, but without giving to any of them any new function and without accomplishing by them any new result. This brings the patents within the principle so often declared that the 'mere carrying forward of the original thought, a change only in form, proportions, or degree, doing the same thing in the same way, by substantially the same means, with better results, is not such an invention as will sustain a patent. Roberts v. Ryer, 91 U. S. 150, 23 L. ed. 267; Belding Mfg. Co. v. Challenge Corn Planter Co. 152 U. S. 100, 38 L. ed. 370, 14 Sup. Ct. Rep. 492;' Market Street Cable R. Co. v. Rowley, 155 U. S. 621, 629, 39 L. ed. 284, 288, 15 Sup. Ct. Rep. 224. The device involved in these patents is so simple and familiar in all of its forms that a description of it seems sufficient to visualize it to the reader, but cuts of it in various forms may be found in the reported decisions of this case (Railroad Supply Co. v. Elyria Iron & Steel Co. 130 C. C. A. 447, 213 Fed. 789), and in the report of the case, involving the same claims of the same patents, in the seventh circuit, to be found in Railroad Supply Co. v. Hart Steel Co. 193 Fed. 418, and 138 C. C. A. 23, 222 Fed. 261. Clearly persuaded as we are that the slight variations claimed for the patents in suit from the plates which had gone before do not constitute patentable invention, we cannot consent to further extend this discussion by a minute comparison of them with earlier patents appearing in the record, but we content ourselves with adopting as comment not to be improved upon in such a case as we have here the following from a former decision of this court: 'The design of the patent laws is to reward those who make some substantial discovery or invention, which adds to our knowledge and makes a step in advance in the useful arts. Such inventions are worthy of all favor. It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities to lawsuits and vexatious accountings for profits made in good faith.' Atlantic Works v. Brady, 107 U. S. 192, 200, 27 L. ed. 438, 441, 2 Sup. Ct. Rep. 225. We add that each of the patents of the petitioner being in terms for an 'improvement in tie plates,' the state of the 'prior art' as described in this opinion requires that they be limited strictly to the form described in the claims, and therefore the patents in suit, even if they had proved valid, would not have been infringed by the plates manufactured by the defendant. The decree of the Circuit Court of Appeals is affirmed. Mr. Justice Day did not take any part in the decision of this case.

242.US.526

The Fifth Amendment relates to national action only. A city ordinance, which has been upheld by the highest court of the State as valid under the state legislation, is to be regarded by this court as a law of the State and is to be tested accordingly. Such an ordinance, when dealing with a subject within the police power, must be upheld unless shown to be clearly unreasonable, arbitrary or discrirainatory. A city, exercising the police power, may prohibit the erection of billboards in residence districts, in the interest of the safety, morality, health and decency of the community. Such a prohibition is not to be deemed unduly discriminatory because not including fences and other structures, found less likely to become a source of public injury. An ordinance prohibiting billboards is not invalidated by a provision which removes the prohibition as to any billboard the erection of which is first consented to by the owners of a majority of the frontage on both sides of the street in the block in which it is to be erected. Eubank v. Richmond, 226 U. S. 137, distinguished. He who is not injured by the operation of a law or ordinance can not be said to be depived by it of either constitutional right or of property. ,67 Illinois, 344, affirmed.

In this proceeding the plaintiff in error, a corporation engaged in 'outdoor advertising,' claims that § 707 of article 23 of an ordinance of the city of Chicago, governing the erection and maintenance of billboards in that city, is unconstitutional. '707. Frontabe consents required.—It shall be unlawful for any person, firm or corporation to erect or construct any billboard or signboard in any block on any public street in which one half of the buildings on both sides of the street are used exclusively for residence purposes without first obtaining the consent in writing of the owners or duly authorized agents of said owners owning a majority of the frontage of the property on both sides of the street in the block in which such billboard or signboard is to be erected, constructed or located. Such written consents shall be filed with the commissioner of buildings before a permit shall be issued for the erection, construction or location of such billboard or signboard.' The plaintiff in error expressly concedes in this court that it is within the police power of the city of Chicago to exercise within the city limits a reasonable regulation and control over the construction and maintenance of billboards and other similar structures. But it is contended that the section quoted is in terms 'an arbitrary, unrestrained' exercise of power, which, if given effect, could be used without any regard 'to the safety, health, morals, comfort, or welfare of the public,' and that it therefore offends against the 5th and 14th Amendments to the Constitution of the United States. Obviously, claims made under the 5th Amendment need not be considered (Livingston v. Moore, 7 Pet. 469, 551, 8 L. ed. 751, 781; Lloyd v. Dollison, 194 U. S. 445, 48 L. ed. 1062, 24 Sup. Ct. Rep. 703), and there remains only the question whether the ordinance, if enforced, would work 'a denial to the plaintiff in error of the equal protection of the laws,' or would 'deprive it of its property without due process of law.' The claimed infirmity in the ordinance consists in the requirement that before any billboard or signboard of over 12 square feet in area may be erected in any block in which one half of the buildings are used exclusively for residence purposes, the owners of a majority of the frontage of the property on both sides of the street in such block shall consent in writing thereto. This, it is claimed, is not an exercise by the city of power to regulate or control the construction and maintenance of billboards, but is a delegation of legislative power to the owners of a majority of the forntage of the property in the block 'to subject the use to be made of their property by the minority owners of property in such block to the whims and caprices of their neighbors.' The supreme court of the state of Illinois sustained the validity of the ordinance in an opinion (267 Ill. 344, 108 N. E. 340, Ann. Cas. 1916C, 488) which declares that the act of the legislature of that state, passed in 1912 (Hurd's Stat. 1913, chap. 24, ¶696) is a clear legislative declaration that the subject of billboard advertising shall be subject to municipal control. It is settled for this court by this decision that the ordinance assailed is within the scope of the power conferred on the city of Chicago by the legislature, that it is to be treated as proceeding from the lawmaking power of the state, and that, therefore, it is a valid ordinance unless the record shows it to be clearly unreasonable and arbitrary. Reinman v. Little Rock, 237 U. S. 171, 59 L. ed. 900, 35 Sup. Ct. Rep. 511. Upon the question of the reasonableness of the ordinance, much evidence was introduced upon the trial of the case, from which the supreme court finds that fires had been started in the accumulation of combustible material which gathered about such billboards; that offensive and insanitary accumulations are habitually found about them, and that they afford a convenient concealment and shield for immoral practices, and for loiterers and criminals. As bearing upon the limitation of the requirement of the section to blocks 'used exclusively for residence purposes,' the court finds that the trial court erroneously refused to allow testimony to be introduced tending to show that residence sections of the city did not have as full police or fire protection as other sections have, and that the streets of such sections are more frequented by unprotected women and children than, and are not so well lighted as, other sections of the city are, and that most of the crimes against women and children are offenses against their persons. Neglecting the testimony which was excluded by the trial court, there remains sufficient to convincingly show the propriety of putting billboards, as distinguished from buildings and fences, in a class by themselves (St. Louis Gunning Advertising Co. v. St. Louis, 235 Mo. 99, 137 S. W. 929), and to justify the prohibition against their erection in residence districts of a city in the interest of the safety, morality, health, and decency of the community. The claim is palpably frivolous that the validity of the ordinance is impaired by the rpovision that such billboards may be erected in such districts as are described if the consent in writing is obtained of the owners of a majority of the frontage on both sides of the street in any block in which such billboard is to be erected. The plaintiff in error cannot be injured, but obviously may be benefited, by this provision, for without it the prohibition of the erection of such billboards in such residence sections is absolute. He who is not injured by the operation of a law or ordinance cannot be said to be deprived by it of either constitutional right or of property. Tyler v. Judges of Ct. of Registration, 179 U. S. 405, 45 L. ed. 252, 21 Sup. Ct. Rep. 206; Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 58 L. ed. 713, 34 Sup. Ct. Rep. 359. To this we may add that such a reference to a neighborhood of the propriety of having carried on within it trades or occupations which are properly the subject of regulation in the exercise of the police power is not uncommon in laws which have been sustained against every possible claim of unconstitutionality, such as the right to maintain saloons (Swift v. People, 162 Ill. 534, 33 L.R.A. 470, 44 N. E. 528), and as to the location of garages (People ex rel. Busching v. Ericsson, 263 Ill. 368, L.R.A.1915D, 607, 105 N. E. 315, Ann. Cas. 1915C, 183). Such treatment is plainly applicable to offensive structures. The principles governing the exercise of the police power have received such frequent application and have been so elaborated upon in recent decisions of this court, concluding with Armour & Co. v. North Dakota, 240 U. S. 510, 514, 60 L. ed. 771, 775, 36 Sup. Ct. Rep. 440, Ann. Cas. 1916D, 548, that further discussion of them would not be profitable, especially in a case falling as clearly as this one does within their scope. We therefore content ourselves with saying that while this court has refrained from any attempt to define with precision the limits of the police power, yet its disposition is to favor the validity of laws relating to matters completely within the territory of the state enacting them, and it so reluctantly disagrees with the local legislative authority, primarily the judge of the public welfare, especially when its action is approved by the highest court of the state whose people are directly concerned, that it will interfere with the action of such authority only when it is plain and palpable that it has no real or substantial relation to the public health, safety, morals, or to the general welfare. Jacobson v. Massachusetts, 197 U. S. 11, 30, 49 L. ed. 643, 651, 25 Sup. Ct. Rep. 358, 3 Ann. Cas. 765. And this, for the reasons stated, cannot be said of the ordinance which we have here. The plaintiff in error relies chiefly upon Eubank v. Richmond, 226 U. S. 137, 57 L. ed. 156, 42 L.R.A.(N.S.) 1123, 33 Sup. Ct. Rep. 76, Ann. Cas. 1914B, 192. A sufficient distinction between the ordinance there considered and the one at bar is plain. The former left the establishment of the building line untouched until the lot owners should act, and then made the street committee the mere automatic register of that action, and gave to it the effect of law. The ordinance in the case at bar absolutely prohibits the erection of any billboards in the blocks designated, but permits this prohibition to be modified with the consent of the persons who are to be most affected by such modification. The one ordinance permits two thirds of the lot owners to impose restrictions upon the other property in the block, while the other permits one half of the lot owners to remove a restriction from the other property owners. This is not a delegation of legislative power, but is, as we have seen, a familiar provision affecting the enforcement of laws and ordinances. It results that the judgment of the Supreme Court of Illinois will be affirmed. Mr. Justice McKenna, dissents.

244.US.310

That provision of the "Blow-Post" law of Georgia (Civil Code, 1910, §§ 2675-2677), which requires railroad companies to check the speed of trains before public road crossings so that trains may be stopped in time should any person or thing be crossing the track there, is a direct and unconstitutional interference with interstate commerce as applied to the state of facts specifically pleaded by the defendant interstate carrier in this case, whereby it appears that, to comply with the requirement, the interstate train in question would have been obliged to come practically to a stop at each of 124 ordinary grade crossings within a distance of 123 miles in Georgia extending from Atlanta to the South Carolina line, and that more than six hours would thus have been added to the schedule time of four hours and thirty minutes. Southern Railway Co. v. King, 217 U. S. 524, distinguished. 16 Ga. App. 504, reversed.

This writ of error is directed to a judgment entered upon a verdict for the sum of $1,000 in the city court of Elberton, Georgia, for the death of a son of defendant in error, alleged to have been caused by the railway company. The judgment was affirmed by the court of appeals of Georgia. The facts as charged are: That the deceased was driving a horse and buggy along a public road in the county of Elbert, and while crossing the railroad track of the railway company at a public crossing outside of the city of Elberton, he was struck by the engine of one of the company's passenger trains and received injuries from which he died three days later. That the employees of the company in charge of the train failed to blow the engine whistle at the blow post 400 yards south of the crossing, failed to keep blowing it until the train arrived at the crossing, and failed to check the speed of the train at such blow post and keep it checked until the train reached the crossing, and, so failing, the company was guilty of negligence. That the employees of the company failed to keep the train under control, and approached the crossing at a high and dangerous rate of speed, so that they could not stop the same in time to save the life of the deceased, and that such conduct was negligence. And that 'such conduct was negligence if they saw said deceased on the crossing, and it was negligence if they did not see him, and it was negligence under the blow-post law,1 and it was negligence regardless of the blow-post law.' The company by its answer denied the various acts of negligence charged against it and its employees and denied 'that the failure to comply with said blow-post law was negligence on its part relatively to the transaction in question.' The company set out the applicable sections of the law and alleged that its train was running in interstate commerce between the states, and especially between Georgia and South Carolina. That between the city of Atlanta, Georgia, and the Savannah river, a distance of 123 miles, where the same is the boundary line of Georgia, there are 124 points where the line of the railroad crosses public roads of the different counties of the state, established pursuant to law, and that all of such crossings are at grade. That in order to comply with the law the speed of a train would have to be so slackened that there would be practically a full stop at each of the road crossings; that the time required for such purpose would depend upon various conditions, which might or might not exist at the time and at the crossings; among others, the state of the weather and the percentage of grade; but it would not be less than three minutes for a train composed of an engine and three cars, and for a train of a greater number of cars the time would be greater,—for an average freight train, not less than five minutes. That the train alleged to have caused the death of the deceased was composed of an engine, a mail car, and two coaches, and that if the blow-post law had been complied with on the day in question at least three minutes would have been consumed at each crossing,—more than six hours between Atlanta and the Savannah river. That the running time between those points according to the adopted schedule was four hours and thirty minutes. That if the law had been complied with the time consumed between those points would have been more than ten and one-half hours. That for freight trains the time consumed would be more than sixteen hours, the maximum speed of such trains on the company's road being 20 miles an hour. That the crossings are the usual and ordinary grade crossings and there are no conditions which make any one of them peculiarly dangerous other than such danger as may result from the crossing of a public road by a railroad track at grade. That between the city of Atlanta and the Savannah river the line of the company's railroad crosses the tracks of two other railroads, and that under the laws of the state a train is required to come to a full stop 50 feet from the crossing, and that the time so consumed would increase the time required to operate between the points referred to. That the law as applied to the train in question is an unreasonable regulation of interstate commerce and a violation of ¶3, § 8, article I., of the Constitution of the United States, and that therefore the company is not guilty of the various acts of negligence charged against it. Upon demurrer to the answer of the company the averments in regard to the law were struck out except the denial that the failure to comply with the law was negligence on the company's part 'relatively to the transaction in question.' The case so went to the jury, including the defense that the deceased failed to exercise ordinary care and diligence for his own safety. The jury returned a verdict for the sum of $1,000. A motion for a new trial was denied. The railway company then took the case to the court of appeals of the state, and that court invoked the instruction of the supreme court upon the question whether that part of the law (Civil Code of the state, § 2675) which requires the engineer to check the speed of the train on approaching a public crossing, so as to stop in time should any person or thing be crossing the railroad track on its road, is unconstitutional so far as an interstate train is concerned, under the conditions set forth in the answer of the company, for the reason that, as thus applied, the statute is a regulation of interstate commerce and repugnant to the commerce clause of the Constitution of the United States. The supreme court answered the question in the negative. The opinion of the court is very elaborate, but the basis of it is that the law is a valid exercise of the police power of the state, that there was no displacement of its exercise by congressional action, and that by its exercise in the law in question it did not directly burden interstate commerce. The court of appeals accepted necessarily the views of the supreme court and sustained the ruling of the trial court upon the demurrer to the plea of the company that the law violated the commerce clause of the Constitution. To the contention of the company that the deceased had not observed ordinary care for his own safety, and could have avoided the injury which resulted in his death, the court answered that it was a jury question, and said: 'In view of the evidence as to the defendant's failure to comply with the provisions of the 'blow-post law' there is sufficient testimony as a whole to support the jury's findings in favor of the plaintiff.' The court hence affirmed the judgment. It will be observed, therefore, from this statement, that the law of the state was an element in the decisions of the state tribunals and its constitutionality was sustained against the attacks of the railway company. The question is therefore presented for our consideration. In its consideration we need not descant upon the extent of the police power of the state and the limitations upon it when it encounters the powers conferred upon the national government. There is pertinent exposition of these in Southern R. Co. v. King, 217 U. S. 524, 54 L. ed. 868, 30 Sup. Ct. Rep. 594, in which the law now under review was passed upon. The case is clearer as to the relation of the powers and that the power of the state cannot be exercised to directly burden interstate commerce. It was recognized that there might be crossings the approach to which the state could regulate. But, on the other hand, it was said there might be others so numerous and so near together that to require the slackening of speed would be practically destructive of the successful operation of interstate passenger trains; and therefore 'statutes which require the speed of such trains to be checked at all crossings so situated might not only be a regulation but also a direct burden upon interstate commerce, and therefore beyond the power of the state to enact.' That case went off on a question of pleading. An answer was filed that did not invoke the Federal Constitution. This was attempted to be done by an amended answer which was very general and to which a demurrer was sustained. At the trial of the action there was an offer of evidence of the specific effect of the law upon the operation of trains as showing the impediment of the law to interstate commerce. The evidence was excluded. This court sustained the ruling on the ground that the evidence was not admissible under the pleadings. The ruling upon the demurrer to the answer was sustained on the ground that the answer contained only general averments constituting 'mere conclusions.' It was said that the averments 'set forth no facts which would make the operation of the statute unconstitutional. They do not show the number or location of the crossings at which the railway company would be required to check the speed of its trains so as to interfere with their successful operation. For aught that appears as allegations of fact in this answer the crossing at which this injury happened may have been so located and of such dangerous character as to make the slackening of trains at that point necessary to the safety of those using the publc highway, and a statute making such requirement only a reasonable police regulation, and not an unlawful attempt to regulate or hinder interstate commerce. In the absence of facts setting up a situation showing the unreasonable character of the statute as applied to the defendant under the circumstances, we think the amended answer set up no legal defense, and that the demurrer thereto was properly sustained.' The facts so specified, and which it was decided would give illegal operation to the statute, are alleged in the present case, and, assuming them to be true,—and we must so assume,—compel the conclusion that the statute is a direct burden upon interstate commerce, and, being such, is unlawful. The demurrer to the answer averring them was therefore improperly sustained. We express no opinion on the third defense of the company. Reversed and case remanded for further proceedings not inconsistent with this opinion. The CHIEF JUSTICE, Mr. Justice Pitney, and Mr. Justice Brandeis dissent on the ground that the regulation in question was within the class which the state is entitled to enact in the absence of congressional action, and until such action. There having been no action by Congress, there is therefore no ground for holding the state action void as a regulation of interstate commerce.

245.US.308

An allotment certificate issued under the Choctaw-Chickasaw agreement of July 1, 1902, c. 1362, 32 Stat. 641, passes the equitable title only; the legal title remains in the United States until conveyed by patent, duly recorded, as provided by § 5 of the Act of April 26, 1906, c. 1876, 34 Stat. 137, and the allotment in the meantime is subject to be set aside, by the Secretary of the Interior, for fraudulent procurement. The doctrine of bona fide purchase will not aid the holder of an equity to overcome the holder of both the legal title and an equity. Mandamus is a discretionary remedy, largely controlled by equitable principles; it will not be granted to promote a wrong-to direct an act which will work public or private mischief, or which, whil within the letter, disregards the spirit of the law. So held where the relator, purchaser in good faith and without notice of a fraudulent Indian allotment, sought to get in the legal title as against the United States by compelling the Secretary of the Interior to issue and record a patent. 44 App. D. C. 63, affirmed.

This is a petition for a writ of mandamus brought in the Supreme Court of the District of Columbia to compel the Secretary of the Interior to restore the name of Nicholas Alberson, deceased, to the rolls under the Choctaw-Chickasaw Agreement of July 1, 1902 (32 Stat. 641), and to execute and record a patent for land described in an allotment certificate issued in his name by the dawes Commission. Under that act only the names of persons alive September 25, 1902, were entitled to entry on the rolls. Alberson had died before that date. The entry of his name and the issue of the certificate were procured by fraud and perjury. These facts, now conceded, were established by the Commission to the Five Civilized Tribes; and the Secretary of the Interior upon recommendation of the Commission removed Alberson's name from the rolls, held the certificates for cancellation, and allotted the land to others. Notice of the hearing before the Commission was given to Alberson's administrator and attorney of record, but not to the relator, who had, under the Oklahoma law, recorded the deed assigning the certificates and was in actual possession of the premises. The certificates had issued on or before April 7, 1906. The notation removing Alberson's name from the rolls was made January 11, 1908. The relator purchased the certificates before January 11, 1908, for value in good faith without knowledge of the fraud or notice of the proceedings for cancellation hereinbefore referred to. The Supreme Court entered judgment for the relator, commanding issue and record of the patent, but making no order in respect to restoring Alberson's name to the rolls. The relator acquiesced in the judgment; but on writ of error sued out by respondent the judgment was reversed by the Court of Appeals (44 App. D. C. 63); and the relator brings the case here on writ of error. The nature of the Choctaw-Chickasaw Agreement1 and the rights incident to enrollment and allotment have been frequently considered by this court. Enrollment confers rights which cannot be taken away without notice and opportunity to be heard. Garfield v. Goldsby, 211 U. S. 249, 29 Sup. Ct. 62, 53 L. Ed. 168. Certificates of allotment, lkie receiver's receipts under the general land laws, entitle the holder to exclusive possession of the premises. Act July 1, 1902, § 23 (32 Stat. 641-644); United States v. Detroit Lumber Co., 200 U. S. 321, 337, 338, 26 Sup. Ct. 282, 50 L. Ed. 499. But enrollment and certificates may be canceled by the Secretary of the Interior for fraud or mistake (Lowe v. Fisher, 223 U. S. 95, 32 Sup. Ct. 196, 56 L. Ed. 364), because although the equitable title had passed (Michigan Land & Lumber Co. v. Rust, 168 U. S. 589, 593, 18 Sup. Ct. 208, 42 L. Ed. 591), the land remains subject to the supervisory power of the Land Department (Knight v. Lane, 228 U. S. 6, 33 Sup. Ct. 407, 57 L. Ed. 709), until issue of the patent (United States v. Wildcat, 244 U. S. 111, 37 Sup. Ct. 561, 61 L. Ed. 1024), unless under the statute the power expires earlier by lapse of time (Ballinger v. Frost, 216 U. S. 240, 30 Sup. Ct. 338, 54 L. Ed. 464). Under section 5 of the act of April 26, 1906 (chapter 1876, 34 Stat. 137), the legal title can be conveyed only by a patent duly recorded. Brown v. Hitchcock, 173 U. S. 473, 478, 19 Sup. Ct. 485, 43 L. Ed. 772. The provision in section 23 of the Act of July 1, 1902, that 'allotment certificates issued by the Commission to the Five Civilized Tribes shall be conclusive evidence of the right of any allottee to the tract of land described therein' has relation to rights between the holder and third parties. The title conferred by the allotment is an equitable one, so that supervisory power remained in the Secretary of the Interior. We are not required to decide whether, as suggested in Lowe v. Fisher, 223 U. S. 95, 107, 32 Sup. Ct. 196, 56 L. Ed. 364, the power to remove Alberson's name from the rolls had, because of section 2 of Act April 26, 1906, expired before the Secretary acted. For the Supreme Court of the district did not order the name restored, and its judgment was acquiesced in by the relator. The claim which the relator makes in this court rests wholly upon the fact that the relator was a bona fide purchaser for value. But the doctrine of bona fide purchaser for value applies only to purchasers of the legal estate. Hawley v. Diller, 178 U. S. 476, 484, 20 Sup. Ct. 986, 44 L. Ed. 1157. It 'is in no respect a rule of property, but a rule of inaction.' Pomeroy, Equity Jurisprudence, § 743. It is a shield by which the purchaser of a legal title may protect himself against the holder of an equity, not a sword by which the owner of an equity may overcome the holder of both the legal title and an equity. Boone v. Chiles, 10 Pet. 177, 210, 9 L. Ed. 388. Mandamus is an extraordinary remedial process which is awarded, not as a matter of right, but in the exercise of a sound judicial discretion. It issues to remedy a wrong, not to promote one; to compel the performance of a duty which ought to be performed, not to direct an act which will work a public or private mischief or will be within the strict letter of the law but in disregard of its spirit. Although classed as a legal remedy, its issuance is largely controlled by equitable principles.2 The relator having itself only an equity seeks the aid of the court to clothe it with the legal title as against the United States, which now holds both the legal title and the equity to have set aside an allotment certificate secured by fraud. A writ of mandamus will not be granted for such a purpose. See Turner v. Fisher, 222 U. S. 204, 32 Sup. Ct. 37, 56 L. Ed. 165. The judgment of the Court of Appeals is Affirmed.

246.US.135

The principles laid down in Western Union Telegraph Co. v. Kansas, 216 U. S. 1, and other cases, limiting the power of a State in respect of license fees or excise taxes imposed on foreign (sister state) corporations doing interstate as well as local business, are restated and reaffirmed. A license fee or excise of a given per cent. of the par value of the entire iuthorized capital stock of a foreign corporation doing both local and interstate business and owning property in several States, tested, as it must be, by its essential and practical operation rather than by its form or local characterization, is a tax on the entire business and property of the corporation, and is unconstitutional and void, both as an illegal burdening of interstate commerce, and as a deprivation of property without due process of law. The immunity of interstate commerce from state taxation is universal and covers every class of such commerce, including that conducted by merchants and trading companies no less than what is done by common carriers. As respects the power of a State to tax property beyond its jurisdiction belonging to a foreign corporation, it is of no moment whether the corporation be a carrier or a trading company, for a State is wholly without power to impose such a tax. Massachusetts Stats., 1914, c. 724, § 1, as construed by the Supreme Judicial Court, removed the maximum limit fixed by Stats., 1909, e. 490, Pt. 11, § 56, so that the two conjointly exact a single tax based on the par value of the entire authorized capital stock of the foreign corporation, of 1150 of 1%of the first $10,000,000, and 1/100 of 1% of the excess. Held, that, so changed, the law in its essential and practical operation is like those held invalid in Western Union Telegraph Co. v. Kansas, supra, and other cases cited, including Looney v. Crane (o., 245 U. S. 178; and that a tax exacted under it for the privilege of doing local business, from a foreign corporation largely engaged in interstate commerce, and whose property and business were largely in other States, was void. Baltic Mining Co. v. Massachusetts, 231 U. S. 68, distinguished. 228 Massachusetts, 101, reversed.

This is a suit by a New York corporation to recover the amount of an excise tax assessed against it in Massachusetts for the year 1915 and paid under protest, the right of recovery being predicated on the asserted invalidity of the tax under the commerce clause of the Constitution (article 1, § 8, cl.3) and the due process clause of the Fourteenth Amendment. The tax is also assailed on other grounds which will be passed without particular notice. The case is set forth in an agreed statement, in the light of which the state court has sustained the tax. 228 Mass. 101, 117 N. E. 246. The Massachusetts statutes under which the tax was imposed are as follows: St. 1909, c. 490, pt. 3, § 56: 'Every foreign corporation shall, in each year, at the time of filing its annual certificate of condition, pay to the treasurer and receiver general, for the use of the commonwealth, an excise tax to be assessed by the tax commissioner of one fiftieth of one per cent. of the par value of its authorized capital stock as stated in its annual certificate of condition; but the amount of such excise tax shall not in any one year exceed the sum of two thousand dollars.' St. 1914, c. 724, § 1: 'Every foreign corporation subject to the tax imposed by section fifty-six of part III of chapter four hundred and ninety of the acts of the year nineteen hundred and nine shall in each year, at the time of filing its annual certificate of condition, pay to the treasurer and receiver general, for the use of the commonwealth, in addition to the tax imposed by said section fifty-six, an excise tax to be assessed by the tax commissioner of one one hundredth of one per cent. of the par value of its authorized capital stock in excess of ten million dollars as stated in its annual certificate of condition.' The facts shortly stated are these. The company, as before indicated, is a New York corporation. Its authorized capital stock, on which the tax was computed, is $45,000,000. Its total assets are not less than $39,000,000 or $40,000,000, of which not more than 1 3/4 per cent. are located or invested in Massachusetts. Its authorized and actual business is manufacturing and selling paper, in which connection it operates 23 paper mills 1 in Massachusetts and 22 in other states. The output of its mills is sold by it in both interstate and intrastate commerce, principally the former. In Massachusetts it maintains a selling office where two salesmen, with a bookkeeping and clerical force, negotiate sales of a part of the output to consumers in the New England states, subject to the approval of the home office in New York. About 86 per cent. of the sales negotiated through this selling office are in interstate commerce and the remainder are local to Massachusetts. The sales are made largely through long-term contracts with proprietors of newspapers whereby the company engages to supply their needs from its mills and from the output in transit at the time. No stock of goods is kept on hand in Massachusetts from which current sales are made. The executive and financial offices of the company are in New York, and none of its corporate or business activities are carried on in Massachusetts save as is here indicated. It pays local property taxes in Massachusetts on its real and personal property located there. In 1915 the assessed value of such property was $472,000 and the tax paid thereon was $8,118. The tax in question was in addition to the property tax and amounted to $5,500. It was imposed, so the state court holds, as an annual excise for the privilege of doing a local business within the state. While the legislation under which the tax was assessed and collected was enacted in part in 1909 and in part in 1914, its operation and validity must be determined here by considering it as a whole, for the opinion of the state court not only holds that the 'maximum limitation' put on the tax by the part first enacted 'is removed' by the other, but treats the two parts as exacting a single tax based on the par value of 'the entire authorized capital' and computed as to $10,000,000 thereof at the rate of one-fiftieth of 1 per cent. and as to the excess at the rate of one one-hundredth of 1 per cent. Cases involving the validity of state legislation of this character often have been before this court. The statutes considered have differed greatly, as have the circumstances in which they were applied, and the questions presented have varied accordingly. In disposing of these questions there has been at times some diversity of opinion among the members of the court and some of the decisions have not been in full accord with others. But the general principles which govern have come to be so well established as no longer to be open to controversy. The subject was extensively considered in Western Union Telegraph Co. v. Kansas, 216 U. S. 1, 30 Sup. Ct. 190, 54 L. Ed. 355. A statute of Kansas was there in question. As construed by the state court, it required a foreign corporation doing an interstate and local business in that and other states to pay a license fee or excise of a given per cent. of its authorized capital for the privilege of conducting a local business in that state. After reviewing the earlier decisions this court pronounced the statute invalid as being repugnant to the commerce clause of the Constitution and the due process clause of the Fourteenth Amendment. In that and two other cases (Pullman Co. v. Kansas, 216 U. S. 56, 30 Sup. Ct. 232, 54 L. Ed. 378, and Ludwig v. Western Union Telegraph Co., 216 U. S. 146, 30 Sup. Ct. 280, 54 L. Ed. 423), which were before the court at the same time it was held: 1. The power of a state to regulate the transaction of a local business within its borders by a foreign corporation—meaning a corporation of a sister state—is not unrestricted or absolute, but must be exerted in subordination to the limitations which the Constitution places on state action. 2. Under the commerce clause exclusive power to regulate interstate commerce rests in Congress, and a state statute which either directly or by its necessary operation burdens such commerce is invalid, regardless of the purpose with which it was enacted. 3. Consistently with the d e process clause, a state cannot tax property belonging to a foreign corporation and neither located nor used within the confines of the state. 4. That a foreign corporation is partly, or even chiefly, engaged in interstate commerce does not prevent a state in which it has property and is doing a local business from taxing that property and imposing a license fee or excise in respect of that business, but the state cannot require the corporation as a condition of the right to do a local business therein to submit to a tax on its interstate business or on its property outside the state. 5. A license fee or excise of a given per cent. of the entire authorized capital of a foreign corporation doing both a local and interstate business in several states, although declared by the state imposing it to be merely a charge for the privilege of conducting a local business therein, is essentially and for every practical purpose a tax on the entire business of the corporation, including that which is interstate, and on its entire property, including that in other states; and this because the capital stock of the corporation represents all its business of every class and all its property wherever located. 6. When tested, as it must be, by its substance—its essential and practical operation—rather than its form or local characterization, such a license fee or excise is unconstitutional and void as illegally burdening interstate commerce and also as wanting in due process because laying a tax on property beyond the jurisdiction of the state. True, those were cases where the business, interstate and local, in which the foreign corporation was engaged was that of a common carrier. But the immunity of interstate commerce from state taxation is not confined to what is done by the carriers in such commerce, On the contrary, it is universal and covers every class of interstate commerce, including that conducted by merchants and trading companies. And as respects the power of a state to tax property beyond its jurisdiction belonging to a foreign corporation, it is of no moment whether the corporation be a carrier or a trading company, for a state is wholly without power to impose such a tax. Our last decision on the subject was given during the present term in Looney v. Crane Co., 245 U. S. 178, 38 Sup. Ct. 85, 62 L. Ed. ——. The case was orally argued a second time at our request and was much considered. It involved the validity of a Texas statute which, as construed by the state court of last resort, required a foreign corporation as a condition to engaging in local business in that state to pay a permit tax based on its entire authorized capital and a franchise tax based on its outstanding capital plus its surplus and undivided profits. The foreign corporation complaining of these taxes was a manufacturing and trading company extensively engaged in interstate and local commerce, principally the former, in several states, including Texas. It maintained an agency in that state and had a large supply depot at one point therein and a warehouse at another. Of its gross sales and receipts for the year preceding the suit not more than 2 1/2 per cent.—$1,019,750—had any relation to Texas and of this approximately one-half was interstate in character. The assessed value of its property in the state was $301,179, upon which it paid the usual ad valorem tax. Applying what was held in Western Union Telegraph Co. v. Kansas, supra, and the two other cases before cited, this court unanimously pronounced the Texas statute invalid as placing 'direct burdens on interstate commerce' and taxing 'property and rights which were wholly beyond the confines of the state and not subject to its jurisdiction.' Then turning to Baltic Mining Co. v. Massachusetts, 231 U. S. 68, 34 Sup. Ct. 15, 58 L. Ed. 127, St. Louis, Southwestern Ry. Co. v. Arkansas, 235 U. S. 350, 35 Sup. Ct. 99, 59 L. Ed. 265, Kansas City, Ft. Scott & Memphis Ry. Co. v. Kansas, 240 U. S. 227, 36 Sup. Ct. 261, 60 L. Ed. 617, and Kan as City, Memphis & Birmingham R. R. Co. v. Stiles, 242 U. S. 111, 37 Sup. Ct. 58, 61 L. Ed. 176, which were relied on as practically overruling Western Union Telegraph Co. v. Kansas and kindred cases, the court pointed out that the former contained express statements that they were not intended to limit the authority of the latter, and further said of the former (245 U. S. 189, 38 Sup. Ct. 87, 62 L. Ed. ——): 'In the first place it is apparent in each of the cases that as the statutes under consideration were found not to be on their face inherently repugnant either to the commerce or due process clause of the Constitution, it came to be considered whether by their necessary operation and effect they were repugnant to the Constitution in the particulars stated, and this inquiry it was expressly pointed out was to be governed by the rule long ago announced in Postal Telegraph Cable Co. v. Adams, 155 U. S. 688, 698 [15 Sup. Ct. 268, 360, 39 L. Ed. 311] that 'the substance, and not the shadow, determines the validity of the exercise of the power.' In the second place, in making the inquiry stated in all of the cases, the compatibility of the statutes with the Constitution which was found to exist resulted from particular provisions contained in each of them which so qualified and restricted their operation and necessarily so limited their effect as to lead to such result. These conditions related to the subject-matter upon which the tax was levied, or to the amount of taxes in other respects paid by the corporation, or limitations on the amount of the tax authorized when a much larger amount would have been due upon the basis upon which the tax was apparently levied. It is thus manifest on the face of all of the cases that they in no way sustain the assumption that because a violation of the Constitution was not a large one it would be sanctioned, or that a mere opinion as to the degree of wrong which would arise if the Constitution were violated was treated as affording a measure of the duty of enforcing the Constitution. 'It follows, therefore, that the cases which the argument relies upon do not in any manner qualify the general principles expounded in the previous cases upon which we have rested our conclusion, since the later cases rested upon particular provisions in each particular case which it was held caused the general and recognized rule not to be applicable.' That case and those which it followed and reaffirmed are fully decisive of this. The statutes then and now in question differ only in immaterial details, and the circumstances of their application or attempted application are essentially the same. In principle the cases are not distinguishable. In holding otherwise the state court failed to observe the restricted and limited grounds of our rulings in Baltic Mining Co. v. Massachusetts and the other cases dealt with and distinguished in the excerpt just quoted from our opinion in Looney v. Crane Company. True, the tax sustained in Baltic Mining Co. v. Massachusetts was imposed under the first of the statutes now in question, the one of 1909; but at that time the statute placed a maximum limit on the amount of the tax which, as shown in that and other cases, was a material factor in the decision. This limitation, as the state court holds, was 'removed' by the statute of 1914, which also made a partial reduction in the tax rate. Since then the tax has been assessed on the par value of 'the entire authorized capital' at one-fiftieth of one per cent. up to $10,000,000 and at one one-hundredth of one per cent. for the excess. Accepting the state court's view of the change wrought by the later statute, it is apparent that since 1914 the Massachusetts law has been in its essential and practical operation like those held invalid in 1910 in Western Union Telegraph Co. v. Kansas, Pullman Co. v. Kansas, and Ludwig v. Western Union Telegraph Co., and like that held invalid at the present term in Looney v. Crane Company. What has been § id sufficiently shows that the tax in question should have been declared unconstitutional and void as placing a prohibited burden on interstate commerce and laid on property of a foreign corporation located and used beyond the jurisdiction of the state. Judgment reversed.

243.US.269

The power of the States to seize tangible and intangible property and apply it to satisfy the obligations of absent owners is not obstructed by the Federal Constitution. The power is the same whether the obligation soughf to be enforced be admitted or contested, liquidated or unliquidated, inchoate or mature. The only essentials to its exercise are the presence of the res, its seizure at the commencement of proceedings, and the opportunity of the owner to be heard. Where these essentials exist, a decree for alimony will be valid under the same circumstances and to the same extent as a judgment on a debt, i. e., valid as a charge upon the property seized. So held, where the property was the divorced husband's bank account. Property not subject to attachment at la-- may be reached in equity; an injunction entered at the commencement of proceedings for divorce and alimony may operate as a seizure, in the nature of a garnishment, of defendant's account in bank. 92 Ohio St., 517, affirmed. THE case is stated in the opinion.

Mrs. Pennington obtained in a state court of Ohio a decree of divorce which is admitted to be valid. In the same proceeding she sought alimony; and in order to insure its payment joined as a defendant the Fourth National Bank of Cincinnati, in which her husband had a deposit account. When the suit was filed the court entered a preliminary order enjoining the bank from paying out any part of the deposit. Under later orders of the court the bank made payments from it to the wife. Finally it was perpetually enjoined from making any payment to the husband, and ordered to pay the balance to the wife, which it did. The husband then presented to the bank a check for the full amount of the deposit, asserting that the court's orders deprived him of his property without due process of law, in violation of the 14th Amendment, and were void; since he was a nonresident of Ohio, had not been personally served with process within the state, had not voluntarily appeared in the suit, and had been served by publication only, all of which the bank knew. Payment of the check was refused. Thereupon Pennington brought, in another state court of Ohio, an independent action against the bank for the amount. Judgment being rendered for the bank, he took the case by writ of error to the court of appeals for Hamilton county, and from there to the supreme court of Ohio. Both these courts affirmed the judgment below. Then the case was brought to this court for review, Pennington still claiming that his constitutional rights had been violated. The 14th Amendment did not, in guarantying due process of law, abridge the jurisdiction which a state possessed over property within its borders, regardless of the residence or presence of the owner. That jurisdiction extends alike to tangible and to intangible property. Indebtedness due from a resident to a nonresident—of which bank deposits are an example—is property within the state. Chicago, R. I. & P. R. Co. v. Sturm, 174 U. S. 710, 43 L. ed. 1144, 19 Sup. Ct. Rep. 797. It is, indeed, the species of property which courts of the several states have most frequently applied in satisfaction of the obligations of absent debtors. Harris v. Balk, 198 U. S. 215, 49 L. ed. 1023, 25 Sup. Ct. Rep. 625, 3 Ann. Cas. 1084. Substituted service on a nonresident by publication furnishes no legal basis for a judgment in personam. Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565. But garnishment or foreign attachment is a proceeding quasi in rem. Freeman v. Alderson, 119 U. S. 185, 187, 30 L. ed. 372, 373, 7 Sup. Ct. Rep. 165. The thing belonging to the absent defendant is seized and applied to the satisfaction of his obligation. The Federal Constitution presents no obstacle to the full exercise of this power. It is asserted that these settled principles of law cannot be applied to enforce the obligation of an absent husband to pay alimony, without violating the constitutional guaranty of due process of law. The main ground for the contention is this: In ordinary garnishment proceedings the obligation enforced is a debt existing at the commencement of the action, whereas the obligation to pay alimony arises only as a result of the suit. The distinction is, in this connection, without legal significance. The power of the state to proceed against the property of an absent defendant is the same whether the obligation sought to be enforced is an admitted indebtedness or a contested claim. It is the same whether the claim is liquidated or is unliquidated, like a claim for damages in contract or in tort. It is likewise immaterial that the claim is, at the commencement of the suit, inchoate, to be perfected only by time or the action of the court. The only essentials to the exercise of the state's power are presence of the res within its borders, its seizure at the commencement of proceedings, and the opportunity of the owner to be heard. Where these essentials exist, a decree for alimony against an absent defendant will be valid under the same circumstances and to the same extent as if the judgment were on a debt,—that is, it will be valid not in personam, but as a charge to be satisfied out of the property seized. Cases are cited in the margin.1 The objection that this proceeding was void, because there was no seizure of the res at the commencement of the suit, is also unfounded. The injunction which issued against the bank was as effective a seizure as the customary garnishment or taking on trustee process. Such equitable process is frequently resorted to in order to reach and apply property which cannot be attached at law. Cases are cited in the margin.2 Affirmed.

243.US.251

In a proceeding to condemn land for a private railway, based on Washington Constitution, Art. I, § 16, and Laws 1913, c. 133, p. 412; Rem. & Ball. Ann. Code, §§ 5857-1, et seq., and governed as to procedure by Rem. & Ball. Ann. Code, §§ 921-931, the Superior Court of Washington, after a hearing on the question of necessity, entered an order of condemnation and set down the cause for a jury trial to determine damages, etc.; thereupon condemnees took the case to the Supreme Court of the State by-certiorari, alleging, inter alia, that the Law of 1913 violates the Federal ConstitutiOn; the Supreme Court entered judgment affirming the action of the Superior Court and remitting the cause thereto for further proceedings. Held, that the judgment of the Supreme Court of Washington was interlocutory and therefore not reviewable in this court under § 237 of the Judicial Code. Wheeling and Belmont Bridge Co. v. Wheeling Bridge Co., 138 U. S. 287, questioned, if not overruled. Although a federal question involved in state court proceedings be settled by interlocutory judgment, so that the decision becomes binding on the state tribunals as the law of the case before a final judgment occurs, this court i0 none the less free to determine the question when the final judgment is brought here by writ of error. Writ of error to review 82 Washington, 503, dismissed.

The Coats-Fordney Logging Company, defendant in error, instituted a proceeding by petition in the superior court of the state of Washington for Chehalis county against Grays Harbor Logging Company and W. E. Boeing, wherein it sought to condemn and take certain of their lands situate in that county for the purpose of constructing and maintaining a logging railroad as a private way of necessity in order to bring its lumber to market. The proceeding was based upon the following provisions of the constitution and statutes of the state: Section 16 of art. 1 of the Constitution declares: 'Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others agricultural, domestic, or sanitary purposes. No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner, and no right-of-way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived, . . .' Under this constitutional provision the legislature passed an act (Sess. Laws 1913, chap. 133, p. 412; Rem. & Bal. Code, §§ 5857-1 et seq.) which provides that lands for the construction and maintenance of a private way of necessity may be acquired by condemnation, including within the term 'private way of necessity' a right of way over or through the land of another for means of ingress or egress and the construction and maintenance of roads, logging roads, tramways, etc., upon which timber, stone, minerals, or other valuable materials and products may be transported and carried. The procedure is to be the same as provided for condemnation of private property by railroad companies. This refers us to Rem. & Bal. Code, §§ 921-931 (5637-5645), whereby it is provided, in substance (§ 921), that any corporation authorized by law to appropriate land for a right of way may present to the superior court of the county in which the land is situate a petition describing the property sought to be appropriated, setting forth the names of the owners and parties interested, and the object for which the land is sought to be appropriated, and praying that a jury be impaneled to ascertain and determine the compensation to be made in money; a notice (§ 922) of the petition stating the time and place where it will be presented to the court is to be served upon each person named therein as owner or otherwise interested; (§ 925) at the hearing, if the court be satisfied by competent proof that the contemplated use for which the land is sought to be appropriated is really a public use, or is for a private use for a private way of necessity, and that the public interest requires the prosecution of such enterprise, and that the land sought to be appropriated is necessary for the purpose, the court may make an order directing the sheriff to summon a jury; at the trial (§ 926) the jury shall ascertain, determine, and award the amount of damages to be paid to the owners and other persons interested, and upon the verdict judgment shall be entered for the amount thus awarded; (§ 927) at the time of rendering judgment for damages, if the damages awarded be then paid, or, if not, then upon their payment, the court shall also enter a judgment or decree of appropriation, thereby vesting the legal title to the land in the corporation seeking to appropriate it; (§ 929) upon the entry of judgment upon the verdict of a jury and award of damages the petitioner may make payment of the damages and costs of the proceeding to the parties entitled to the same by depositing the same with the clerk of the superior court, to be paid out under the direction of the court, and upon making such payment the petitioner shall be released from further liability, unless upon appeal the owner or other party interested shall recover a greater amount; (§ 931) 'Either party may appeal from the judgment for damages entered in the superior court to the supreme court of the state within thirty days after the entry of judgment as aforesaid, and such appeal shall bring before the supreme court the propriety and justness of the amount of damages in respect to the parties to the appeal.' Plaintiffs in error opposed the petition for condemnation upon the ground, among others, that the Act of 1913 was contrary to the Constitution of the United States, and that petitioner sought to take their property for a private use, and therefore without due process of law, in violation of that Constitution. After hearing testimony upon the question of necessity, the superior court entered an order of condemnation, and by the same order set the cause down for trial before a jury for the purpose of determining and assessing the damages and compensation. At this point, and before the cause could be brought to trial before a jury, plaintiffs in error applied for and obtained from the supreme court of the state a writ of certiorari for the purpose of reviewing the question of the constitutionality of the act and the right of petitioner to condemn their property for its right of way. The supreme court sustained the proceedings (82 Wash. 503, 144 Pac. 722), and entered a judgment affirming the judgment of the superior court, and remitting the cause to that court for further proceedings. A writ of error was then sued out from this court under § 237, Judicial Code [36 Stat. at L. 1156, chap. 231, Comp. Stat. 1913, § 1214]. Defendant in error moves to dismiss the writ of error on the ground that the judgment of the state court is not final. To this plaintiffs in error respond by saying that, under the state practice, the judgment of the superior court establishing the right of petitioner to acquire the property or right of way sought is final; that while an appeal will not lie from such a judgment to the supreme court, this is because the statutory provision for an appeal in condemnation cases is limited to the question of the amount of damages, and a general statute providing for appeals has been held not applicable to eminent domain proceedings (Western American Co. v. St. Ann Co. 22 Wash. 158, 60 Pac. 158), that because an appeal will not lie, the supreme court has held that a writ of certiorari or review will issue to bring before that court for determination the questions of use and necessity (Seattle & M. R. Co. v. Bellingham Bay & E. R. Co. 29 Wash. 491, 92 Am. St. Rep. 907, 69 Pac. 1107); and that by repeated decisions of that court it has been settled that after an order adjudging necessity has been made and a trial had to determine the amount of damages, an appeal taken therefrom raises no question as to the right to condemn, but is confined to the propriety and justness of the amount of damages (Fruitland Irrig. Co. v. Smith, 54 Wash. 185, 102 Pac. 1031; Calispel Diking Dist. v. McLeish, 63 Wash. 331, 115 Pac. 508; Seattle, P. A. & L. C. R. Co. v. Land, 81 Wash. 206, 209, 142 Pac. 680; State ex rel. Davis v. Superior Ct. 82 Wash. 31, 34, 143 Pac. 168). In this state of the local practice it is argued that the judgment that has been entered should be regarded as finally disposing of a distinct and definite branch of the case, and therefore subject to our review as a final judgment; leaving the ascertainment of the compensation and damages to be dealt with as a separate branch of the case. Wheeling & B. Bridge Co. v. Wheeling Bridge Co. 138 U. S. 287, 290, 34 L. ed. 967, 968, 11 Sup. Ct. Rep. 301, is cited in support of this contention, and certainly seems to lend color to it. But, notwithstanding the decision in that case, we cannot regard a condemnation proceeding taken under the authority of the Constitution of Washington and the Act of 1913 as severable into two distinct branches. The Constitution forbids that the property be taken without compensation first made or ascertained and paid into court for the owner, and, of course, in case of controversy, compensation cannot be made to the owner until the amount of it has been ascertained. It follows that the judgment entered by the superior court to the effect that petitioner was entitled to condemn and appropriate the land in question for its right of way must be construed as being subject to a condition that the proper compensation be first ascertained and paid. As we read the decisions of the supreme court of the state, such judgments are not interpreted in any other sense; they are not described as final, nor as independent judgments. In two cases the term 'order' and even 'preliminary order' has been employed with respect to such judgments (State ex rel. Pagett v. Superior Ct. 46 Wash. 35, 36, 89 Pac. 178; Seattle, P. A. & L. C. R. Co. v. Land, 81 Wash. 206, 209, 142 Pac. 680), and they are held reviewable by certiorari, and not by appeal, not because they are final, or are independent of the subsequent proceedings ascertaining the damages, but because in Washington proceedings by appeal are statutory, and no statute has been enacted giving an appeal from the order or judgment determining the questions of use and necessity; by reason of which, the writ of certiorari is employed as a means of exercising the constitutional power of review. The judgment, therefore, seems to us to be interlocutory, and the case to be within the authority of Luxton v. North River Bridge Co. 147 U. S. 337, 341, 37 L. ed. 194, 195, 13 Sup. Ct. Rep. 356; Southern R. Co. v. Postal Teleg. Cable Co. 179 U. S. 641, 643, 45 L. ed. 355, 356, 21 Sup. Ct. Rep. 249, and United States v. Beatty, 232 U. S. 463, 466, 58 L. ed. 686, 687, 34 Sup. Ct. Rep. 392. When the litigation in the state courts is brought to a conclusion, the case may be brought here upon the Federal questions already raised as well as any that may be raised hereafter; for although the state courts, in the proceedings still to be taken, presumably will feel themselves bound by the decision heretofore made by the supreme court (82 Wash. 503), as laying down the law of the case, this court will not be thus bound (United States v. Denver & R. G. R. Co. 191 U. S. 84, 93, 48 L. ed. 106, 109, 24 Sup. Ct. Rep. 33; Messenger v. Anderson, 225 U. S. 436, 444, 56 L. ed. 1152, 1156, 32 Sup. Ct. Rep. 739; Coe v. Armour Fertilizer Works, 237 U. S. 413, 418, 59 L. ed. 1027, 1029, 35 Sup. Ct. Rep. 625). The judgment brought up by the present writ of error not being a final judgment, within the meaning of § 237, Judicial Code, the writ must be dismissed.

242.US.353

When a state court applies the Federal Employers' Liability Act to an action governed by the state law, the error is not ground for reversing the judgment upon the complaint of a party who did not oppose but invoked and relied upon the application of the federal statute. In such circumstances, however, this court will not pass upon questions concerning negligence and assumption of risk if the facts touching the plaintiff's employment are stated and agreed and fail to make a case within the federal act. The injury occurred while plaintiff was repairing an engine. The engine had been used in interstate commerce before the injury and was so used afterwards, but there was nothing to show that it was permanently or specially devoted to such commerce, or assigned to it at the time. Held, not a case within the Federal Employers' Liability Act. 131 Minnesota, 181; id. 496, affirmed.

This is an action for personal injuries suffered by the plaintiff, the defendant in error, at Marshalltown, Iowa, on October 21, 1912. The decisions below will be found in 126 Minn. 260, 148 N. W. 106, and 131 Minn. 181, 154 N. W. 964. The declaration alleged that at the time the plaintiff was employed by the defendant in interstate commerce, although it went on to set forth laws of the state of Iowa concerning the liability of railroads and contributory negligence. It alleged that the injury was caused by the negligence of the defendant in failing to furnish a reasonably safe instrument for the work that the plaintiff was set to do. The answer denied, among other things, that the plaintiff was employed in interstate commerce, and set up the plaintiff's negligence and assumption of the risk. In the course of the trial, the facts touching the employment having been agreed, the counsel for the defendant intimated that he might want to take the question whether the commerce was interstate to this court, but said no more about it, and later moved to dismiss the suit upon the ground, among others, that the plaintiff assumed the risk, adverting to a decision that that defense was open under the Federal act. Later still the presiding judge in his charge, without objection, told the jury that the action was tried under the law of the United States; and in the assignment of errors to the supreme court of the state, one error assigned was that the jury was instructed that they might find a less than unanimous verdict in a suit founded upon the Federal Employers' Liability Act,—a proposition disposed of since the trial by a decision of this court. Minneapolis & St. L. R. Co. v. Bombolis, 241 U. S. 211, 60 L. ed. 961, L.R.A.1917A, 86, 36 Sup. Ct. Rep. 595. It is true that error is assigned because the court affirmed its opinion rendered after a former trial. But in the assignment of errors to the state court no such error is alleged, and beyond judicial recitals that the evidence, with some exceptions, was the same at both trials, and quotations from the decision as to negligence, the record shows nothing but a casual statement of counsel as to what was done or ruled before. In short, at the trial the defendant in no way saved its rights to deny that the parties were engaged in interstate commerce at the time of the accident, or to object to the application of the Federal statute. On the contrary, without qualification it invoked and relied upon that statute and the rights that, because of that statute, it supposed itself to possess. There is an ambiguous assignment of error that the supreme court of the state erred in holding as matter of law that the plaintiff was engaged in interstate commerce, and in holding that the question of the plaintiff's assumption of the risk was for the jury, 'thereby depriving the appellant of a right guaranteed to it under the provisions of' the Federal Employers' Liability Act. But if the first clause is more than an introduction to and reason for the second, then, as we have indicated, no foundation for such an assignment was laid in the proceedings before the state courts. Therefore even if the courts and parties were wrong about the proper basis for the suit, that fact does not entitle the defendant to have the judgment reversed. It cannot complain of a course to which it assented below. The defendant, however, as has been seen, did save the questions concerning its right to a unanimous verdict and the assumption of risk under the act of Congress, and also concerning the evidence of its negligence, all of which, of course, in a case arising under the act, could be brought to this court. In the present case the facts upon which the act of Congress was supposed to apply are stated and were agreed, so that although, for the reasons that we have stated, an error on that point would not entitle the defendant to a new trial, it necessarily must be determined whether they show a foundation for the attempt to come here upon the questions that were reserved. The agreed statement is embraced in a few words. The plaintiff was making repairs upon an engine. This engine 'had been used in the hauling of freight trains over the defendant's line . . . which freight trains hauled both intrastate and interstate commerce, and it was so used after the plaintiff's injury.' The last time before the injury on which the engine was used was on October 18, when it pulled a freight train into Marshalltown, and it was used again on October 21, after the accident, to pull a freight train out from the same place. That is all that we have, and is not sufficient to bring the case under the act. This is not like the matter of repairs upon a road permanently devoted to commerce among the states. An engine, as such, is not permanently devoted to any kind of traffic, and it does not appear that this engine was destined especially to anything more definite than such business as it might be needed for. It was not interrupted in an interstate haul to be repaired and go on. It simply had finished some interstate business and had not yet begun upon any other. Its next work, so far as appears, might be interstate or confined to Iowa, as it should happen. At the moment it was not engaged in either. Its character as an instrument of commerce depended on its employment at the time, not upon remote probabilities or upon accidental later events. Judgment affirmed.

244.US.320

A request to charge must be calculated to give the jury an accurate understanding of the law with reference to the phase of the case to which it is applicable. Plaintiff, employed to work upon the tracks: of a railroad company, while walking east on the east-bound track to a place of work appointed by his superior, stepped over'to the west-bound track to avoid an east-bound train and was run down by an engine backing, without warning signals, on the west-bound track, and was injured. There was evidence that he did not see the engine because of steam and smoke from 'the avoided train and that those in charge of the backing engine did not see him. Held: (1) That a request to charge that if plaintiff was using the tracks voluntarily for his convenience he assumed the risk, was too broad, in ignoring the circumstances which induced him to use them and in taking for granted his knowledge of the conditions, especially the possibility of negligence in backing the engine without warning. (2) That a request to charge that, if plaintiff, in getting off the track on which he saw the train approaching, could with safety and reasonable convenience have stepped to the right or south of such track, and by his own choice stepped on the other track and was struck by a train thereon, he assumed the risk of such choice--was open to the same objections in not covering the elements of assumed risk, and was more properly applicable to the defense of contributory negligence. Under the Federal Employers' Liability Act, an employee does not assume a risk attributable to the negligence of his co-employees until he is aware of it, unless the risk is so obvious that an ordinarily prudent person in his situation would observe and appreciate it. Affirmed.

Byron B. Marietta brought this suit against the Erie Railroad Company, to recover damages for injuries alleged to have been caused to him by the negligence of the company. He died pending this proceeding in error and the case was revived in the name of his administratrix. Marietta was what is known as a section man in the employ of the company, and had been such for a period of about four weeks before the injury happened. It was his duty to work on the track of the company wherever directed by the section foreman on the section extending from Pavonia, in Richland county, Ohio, westward for a distance of several miles. The Erie Railroad Company was engaged in both interstate and intrastate commerce. The testimony shows that it was customary for the section foreman to direct Marietta where to work and to tell him on the previous day where to report for work on the following day. On the day before the injury was incurred, he was directed by the foreman to report at a point on the section about a quarter of a mile east of a certain tower, located upon the defendant's track. Early on the morning of the day of the injury, he started from his residence to report to the foreman accordingly. It appears that at and near the place of injury the company has a double track; that the north track is used for trains going west and the south track for trains going east; that the plaintiff, in going to the place designated, went upon the south track and was walking eastwardly, when a passenger train bound east came upon this track, and to get out of the way of it he stepped over upon the north or west-bound track; that while walking on that track he was struck and run over by an engine which was running backward and in the opposite direction from that in which trains ordinarily ran upon the north track. This engine had been detached from a train of cars and after pushing another train up a grade on the west-bound track was returning to its own train at the time of the injury. Marietta testified that he had no warning and did not see the approaching engine, owing to steam and smoke from the passenger train, which had just passed upon the other track. The engineer and fireman of the backing engine testified that they did not see Marietta until after he was run over by the engine, and gave no signal or warning of its approach. The case was brought, and by the state court was tried, under the state law. No objection reviewable in this court involves the correctness of the charge of the trial court submitting the questions of negligence and contributory negligence to the jury. The company brings the case here because it contends that it alleged and showed that it was an interstate railroad, engaged in the carriage of freight and passengers between states, and that the train of cars from which the engine which struck Marietta was detached and to which it was returning was engaged in interstate commerce; that inasmuch as he was a section man or track man, employed to work upon the track of an interstate railroad, and was proceeding to his work at the time of his injury, both parties were engaged in interstate commerce and the Federal Employers' Liability Act* applied to the case, and that because of the refusal of the trial court to charge as to assumption of risk, the company was deprived of the benefit of that defense. The court of appeals treated the case as one controlled by the state law, and held that the Employers' Liability Act did not apply, as, in its view, Marietta was not engaged at the time of his injury in interstate commerce, and affirmed the ruling of the trial court in refusing the two requests to charge which are the basis of the assignments of error in this court. These requests were: (1) 'If the plaintiff, for his own convenience, voluntarily went along the tracks of the railroad, and this railroad was being at the time used and operated as a highway of interstate commerce, he assumed the risk and danger of so using the tracks;' and (2) 'If the plaintiff, in getting off the track on which he saw a train approaching, could with safety and reasonable convenience have stepped to the right or south of such track, and by his own choice stepped on a parallel track and was struck by a train on such parallel track, he assumed the risk of such choice.' The refusal to give these requests raises the only Federal question in the case. Conceding, without deciding, that the Federal Employers' Liability Act applied to the circumstances of this case, nevertheless the two requests were properly refused. A request to charge must be calculated to give the jury an accurate understanding of the law having reference to the phase of the case to which it is applicable. Norfolk & W. R. Co. v. Earnest, 229 U. S. 115, 119, 57 L. ed. 1098, 1100, Ann. Cas. 1914C, 172, 33 Sup. Ct. Rep. 654. The first request simply asked a broad charge that if the plaintiff voluntarily, for his own convenience, went upon the tracks of the railroad, and the railroad was at the time being used and operated as a highway of interstate commerce, he assumed the risk and danger of so using the tracks. This request omitted elements essential to make assumption of risk applicable to the case. It failed to call attention to the circumstances under which the testimony tended to show the plaintiff was using the tracks at the time, and the knowledge of conditions which should have been taken into consideration in order to attribute assumption of risk to him. It failed to take into account the undisputed testimony that the engine ran into Marietta without signal or warning to him. Under such circumstnaces the injured man would not assume the risk attributable to the negligent operation of the train, if the jury found it to be such, unless the consequent danger was so obvious that an ordinarily prudent person in his situation would have observed and appreciated it. Chesapeake & O. R. Co. v. De Atley, 241 U. S. 310, 313, 314, 60 L. ed. 1016, 1020, 36 Sup. Ct. Rep. 564; Chesapeake & O. R. Co. v. Proffitt, 241 U. S. 462, 468, 60 L. ed. 1102, 1106, 36 Sup. Ct. Rep. 620, and cases cited. The second request pertained to the conduct of the plaintiff, in view of the particular situation, and what he should have done to protect his safety, considering his danger at the time, and is open to the same objections. This request did not cover the elements of assumed risk and was more properly applicable to the defense of contributory negligence, concerning which the court must be presumed to have given proper instructions to the jury. Affirmed.

243.US.440

A local agent of a life insurance company, whose duty was to verify claims of death and certify and deliver the proofs and certificates to the company's local superintendent, so certified and delivered a false claim, proofs and certificates, for the purpose of defrauding the company, knowing and expecting that in the due course of business and before the claim would be paid the documents, when approved by the superintendent, would be mailed to the company's home office for final approval, as actually occurred. In approving and -mailing the documents the superintendent acted innocently. Held: (1) That the agent caused the mailing, within Criminal Code, § 213, providing 'punishment for those who "place or cause to be placed" matter in a post-office for the purpose of executing a scheme to defraud. (2) That the scheme was not executed on delivery of the documents to the local superintendent. 235 Fed. Rep. 1019, reversed.

Indictment charging a scheme to defraud by use of the mails, in violation of § 215 of the Criminal Code. [35 Stat. at L. 1130, chap. 321, Comp. Stat. 1913, § 10,385.] The indictment is in the usual volume of such instruments, but may be sufficiently summarized as presenting the following facts: Kenofskey was the agent and assistant superintendent at New Orleans, Louisiana, of the Life Insurance Company of Virginia. It was part of his duty to obtain certificates and proofs of death of persons insured in the company and also to view the remains of deceased policy holders, have them identified, and deliver the certificates and proofs of death to the superintendent of the local office at New Orleans, to be forwarded in the usual course of business through the United States mails to the home office of the company at Richmond, Virginia. In pursuance of a fraudulent scheme Kenofskey falsely represented to the insurance company that he had received and obtained a valid and genuine claim, proof of death and certificates executed, signed, and presented by Sarah Thompson, the beneficiary in a policy which had been issued upon the life of one Frederick Wicker. Kenofskey signed the certificates as assistant superintendent. Frederick Wicker is still living, and Kenofskey knew that all claims required the approval of the main office and were to be transmitted from the local office through the United States mails, and, if handed by him to the superintendent, would be so transmitted, and, for that purpose, he delivered the proofs to the superintendent. The superintendent examined them, and, without knowledge of their fraudulent character, affixed his signature thereto, inclosed them in an envelop, and deposited them, postage paid, in the United States mails. A demurrer was filed to the indictment, stating as grounds thereof that it was not sufficient to constitute a violation of § 215 of the Criminal Code of the United States, properly construed and understood, or of any other law of the United States. The demurrer was sustained, the court giving as its reasons therefor the following: 'The depositing of the letter in the mail for the purpose of executing the scheme is the crime. The defendant did not mail the letter, and the local superintendent of the insurance company was not his agent. It is charged it was the duty of the defendant either to prepare for mailing or to actually mail the papers. He is sought to be held on the theory that, as he knew the claim would be mailed to the home office, in the usual course of the business, for approval before payment, he knowingly caused it to be deposited. This theory is too far-fetched to be tenable. Furthermore, in order to constitute a crime, the mailing of the letter must have been a step in the execution of the fraudulent scheme. The scheme devised by defendant was completely executed when he handed the false claim to the local agent at New Orleans. 'However desirable it may be from the viewpoint of the victim to try all perpetrators of traudulent schemes in the Federal courts, this court cannot assume jurisdiction except in clear cases. 'The demurrer will be sustained.' This appeal was then prosecuted under the Criminal Appeals Act of March 2, 1907 (34 Stat. at L. 1246, chap. 2564, Comp. Stat. 1913, § 1704). Section 215 of the Criminal Code is as follows: 'Whoever, having devised . . . any scheme or artifice to defraud . . . shall, for the purpose of executing such scheme or artifice or attempting so to do, place, or cause to be placed, any letter, . . . package, writing, . . . in any postoffice, . . . to be sent or delivered by the postoffice establishment of the United States, . . . ' shall be punished, etc. The short point in the case is whether the facts charged show that Kenofskey offended against the statute. The district court was of opinion that they did not, for two reasons: (1) The superintendent at New Orleans was not the agent of Kenofskey. (2) § 215 is directed at steps in the execution of fraudulent schemes, and the scheme devised by Kenofskey was completely executed when he delivered the false claim to the local agent at New Orleans. We are unable to concur. The words of § 215 are 'place, or cause to be placed, [italics ours] any letter, . . . package, writing, . . . in any postoffice, . . . to be sent or delivered. . . .' 'Cause' is a word of very broad import and its meaning is generally known. It is used in the section in its well-known sense of bringing about, and in such sense it is applicable to the conduct of Kenofskey. He deliberately calculated the effect of giving the false proofs to his superior officer; and the effect followed, demonstrating the efficacy of his selection of means. It certainly cannot be said that the superintendent received authority from the insurance company to transmit to it false proofs. He became Kenofskey's agent for that purpose and the means by which he offended against the provisions of the statute. Demolli v. United States (C. C. A. 8th C.) 6 L.R.A.(N.S.) 424, 75 C. C. A. 365, 144 Fed. 363, 7 Ann. Cas. 121. We do not think the scheme ended when Kenofskey handed the false proofs to his superior officer. As said by the Assistant Attorney General: 'The most vital element in the transaction both to the insurance company and to Kenofskey remained yet to become an actuality, i. e., the payment and receipt of the money; . . .' Such payment and receipt would indeed have executed the scheme, but they would not have served to 'trammel up the consequence' of the fraudulent use of the mails. Judgment reversed and cause remanded for further proceedings in conformity with this opinion.

243.US.59

When it appears by the state -court's opinion that both parties relied upon the construction and effect to be given a decree of a federal court, and that the court applied it against one of them, rejecting the construction relied on by the other, a federal question is presented which this court may determine on writ of error. In a suit by the' United States to determine the title to certain land, rival claims, arising independently under the public land laws and based on facts existing before the litigation, were asserted by two individuals on the one part and by two corporations on another. One of the individuals had deeded to the other with warranty before the' suit, and the second corporation had succeeded to the first during its progress. By consent of the United States and the individuals a decree was entered declaring that the title at the commencement of the suit was fully and completely vested in the first corporation and, pending the suit, had become fully and completely vested in the second, that neither the United States nor the individuals had any right, title or interest in the land, that the title should be quieted in the second corporation against the United States and the individuals, and that the decree should operate as a release from the United States and each of the individuals of all right and title to the land and might be recorded as such in the county records. Held, (1) That the decree should be construed, not as divesting any interest of the individuals or affecting their relations inter sese, but as adjudging that both were devoid of interest from before the beginning of the suit, and, consequeqtly, (2) That the covenant of warranty between them attached by estoppel to the title when afterwards acquired by the warrantor. The. warrantor, having acquired the title, conveyed to the plaintiff in error, the warrantee deeded part. of his interest to another, and thereafter the plaintiff in error joined with the warrantee and the latter's grantee in an option and lease of the property, reciting the warrantee's interest. Held, that this was a practical construction of the decree to the effect that it had not disturbed the warranty. A decision by a state court against a claim of title by adverse possession, where the question is essentially local and dependent on an appreciation of evidence as to the conduct of parties, is not reviewable by this court. 189 Michigan, 78, affirmed.

Suit to declare certain deeds to lands in Michigan to be void, and that plaintiff in error (as he was plaintiff in the court below, we shall so refer to him) be declared to be the owner of the lands and of the minerals therein, that defendants have no title thereto, for an accounting of certain royalties collected by certain of the defendants from the Buffalo Iron Mining Company, and that the latter be restrained from paying any further royalties. The lands are described as follows: W. 1/2 of N. W. 1/4 and N. W. 1/4 of S. W. 1/4, section 23, T. 43 N., R. 35 W., county of Iron, Michigan. An answer, which was also claimed to be a cross bill, was filed, and upon the issues thus formed and after hearing the court by a decree dismissed the bill, adjudged title to the land to be in the defendants Vosper, Abbott, and Tonkin in certain proportions and all the ores and minerals therein, that title to the lands in the proportions mentioned be quieted against plaintiff and all persons claiming under him, that he execute a deed to Vosper, Abbott, and Tonkin of the interests decreed, and, in default thereof, the decree to operate as such release and conveyance. The decree was affirmed by the supreme court of the state. The facts of the case were found by the supreme court substantially as follows: The land was conveyed to the state of Michigan to aid in the construction of two railroads, one in Marquette and the other in Ontonagon. The land applicable to the Marquette road was released by the state to the United States, and later, in 1866 [14 Stat. at L. 81, chap. 161], under an act of Congress granting lands to the state for canal purposes, this land inured to the benefit of the Lake Superior Ship, Canal, Railway, & Iron Company by a grant from the state. The land to be used for the benefit of the Ontonagon road was not released, and it was subsequently decided that the title to an undivided one half of the 'common lands'—that is, lands at the intersection of the proposed railroads—still remained in the state for the purposes of that road, except as affected by an Act of Congress of 1889 [25 Stat. at L. 1008, chap. 414], by which Congress declared a forfeiture of grants in the state of Michigan for all unconstructed railroads, and confirmed title in all persons who had made cash entries within the limits of the grants and all persons claiming state selections, such as the Canal Company. By an exception in the act the title was not confirmed to those lands in which there were not bona fide preemption or homestead claims asserted by actual occupation on May 1, 1888. Michael Donohue, plaintiff's grantor, together with various other persons, had entered upon these 'common lands' as preemptors and homesteaders, and asserted rights thereto under the Act of 1889, referred to above. Prior to the Act of 1889, the Canal Company brought ejectment suits against those settlers. In 1894, in the ejectment suits, it was decided that the title of the Canal Company to the lands selected by the state was confirmed by the Act of 1889, subject to the exceptions provided in the act, and that it should be determined in an equity suit in the United States court what lands came within the excepting clause. It was also decided that the title of the state to the lands granted for the Ontonagon road, including an undivided one half of the 'common lands,' was forfeited to the United States. Defendant Vosper had rendered service in this litigation to Donohue and the other claimants, and took from Donohue a warranty deed on December 29, 1894, to an undivided one-quarter interest in the land. At the instigation of persons claiming under the Act of 1889, the United States filed a bill against the Canal Company. In that suit the Canal Company filed a cross bill against the claimants under the homestead and pre-emption laws, including Donohue. Vosper was also made a party. The issue in the litigation, therefore, was whether Donohue and the other claimants were bona fide homesteaders or pre-emptors on May 1, 1888. Pending the suit, the Canal Company conveyed to the Keweenaw Association, Limited. A decree was entered, Donohue and the other claimants and Vosper consenting, quieting the title to the lands in the Keweenaw Association, Limited, as successor of the Canal Company. The decree was entered in 1896, and adjudged that the Canal Company, at the commencement of the suit, was fully and completely vested with the title to the lands, and since the commencement of the suit it became fully and completely vested in said Keweenaw Association, Limited, as successor of the Canal Company, and that neither the United States of America nor any of the defendants consenting to the decree had 'any right, title, or interest therein.' And it was adjudged that title to the lands be quieted against the United States and the consenting defendants, and further, that the decree should operate as a release and conveyance from the United States and each and every of the other of said defendants of all right and title to said lands, and might be recorded as such in the records of the proper county. November 19, 1896, the Keweenaw Association, Limited, conveyed the lands by quitclaim deed to Donohue. It is the contention of Vosper that he Donohue agreed to this arrangement, by which a sum of money was to be paid for the timber cut and the lands were to be conveyed by the Keweenaw Association to Donohue. December 3, 1896, Michael Donohue delivered to plaintiff a quitclaim deed to the premises, and on April 3, 1908, Vosper quitclaimed an undivided one-eighth interest to defendant Abbott, and on December 18th, following, plaintiff joined with Vosper and Abbott in the execution and delivery of an option for a mining lease of the premises. February 3, 1909, Abbott quitclaimed an undivided 1/32 interest in the minerals to Tonkin, and on March 7, 1910, plaintiff joined Vosper, Abbott, and Tonkin in the execution and delivery of a mining lease in pursuance of the option given before. The mining lease, which was for a term of thirty years, was issued to the Niagara Iron Mining Company as lessee, and was by that company assigned to the Buffalo Mining Company. The Niagara Company was and the Buffalo Company has been and is now in possession of the premises for mining purposes. The trial and supreme courts found that Donohue executed the deed to Vosper. About this there is no controversy. Here the contentions of the parties turn upon the effect of the decree which was rendered by consent in the suit of the United States against the Canal Company, and this makes, it is contended, a Federal question. Defendants, however, assert that the decree does not present a Federal question, and that, besides, it was not claimed or urged as such by plaintiff in the state courts, but appears for the first time in the petition for writ of error, and defendants refer to the bill of complaint to sustain their assertion. But the supreme court in its opinion declared that a contention of plaintiff invoked 'the effect of the decree of the Federal court.' And, discussing the decree, the court decided that its effect was 'to oust Vosper from the land, of which he had the actual or constructive possession of an undivided quarter interest,—it appearing that Michael Donohue continued in possession of the undivided one half of the claim from the time of his original entry until his quitclaim deed to the complainant [plaintiff] despite the alleged trespasses of the Canal Company and its successor, which possession would inure to Vosper under the warranty deed.' And the court further said that, by the paramount title thus established in a third party by the decree, Vosper was evicted from his title and possession and a 'clear case for the application of the doctrine of estoppel by warranty' is made in his favor. The decree, therefore, was made an element in the decision against plaintiff, and it was claimed by him to be an element in his favor. The motion to dismiss is therefore denied. The contention was in the state courts and is here that the decree operated as a conveyance from Michael Donohue and Vosper to the Keweenaw Association, and that, by virtue of its effect as a conveyance, it released the interest that Vosper had in the lands through the warranty deed from Donohue to him, and that no interest remained in Vosper upon which an estoppel could rest. In other words, that by the decree Vosper's interest passed to the Keweenaw Association and from the latter to Michael Donohue; and a number of cases are cited to show that Vosper could make a conveyance of his interest, and that his grantee, in this case the Keweenaw Association, and plaintiff, through the latter, would take his interest. The contention puts out of view a great deal that is material in the situation. The suit in which the decree was entered was one to determine whether the Canal Company or its grantee, the Keweenaw Association, had derived title from the United States, or whether Donohue had. Vosper was made a party because of the deed from Donohue to him, and the decree quieted title in the Keweenaw Association. If it had gone no further there would probably be no dispute about its effect, but it declared that it should 'stand and operate as a release and conveyance from the United States and each and every of the other of said defendants, of all right and title to said lands,' and might 'be recorded as such in the records of the proper county.' Standing alone these latter words might have the effect for which plaintiff contended, but they must be construed by what precedes them and by the nature of the suit. This demonstrates that the decree was but the clearing away of obstructions to the rights of the Keweenaw Association, and was not intended to convey to it any interests the defendants had, but left unaffected whatever obligations existed between themselves. This is found by the supreme court of the state, and that Michael Donohue was paid a sum of money by the Keweenaw Association for the timber cut upon the land, and the land was to be conveyed by the Keweenaw Association to Michael Donohue, leaving, as we have said, the rights between him and Vosper unaffected, and this is demonstrated by their subsequent relations. On April 3, 1908, Vosper quitclaimed an undivided 1/8 interest in the land to Abbott, and in the following December plaintiff and Vosper and Abbott executed and delivered an option for a mining lease of the premises, and subsequently a lease in fulfilment of the option, to the Niagara Iron Mining Company for the term of thirty years. The option and the lease recited that Vosper was the owner of an undivided 1/8 interest in the land. It is further contended that plaintiff had acquired title to the land by adverse possession, but the state courts decided against the contention. This was essentially a local question, involving an appreciation of the evidence as to the conduct of the parties, and we cannot review it. Decree affirmed.

246.US.638

The provision of § 16 of the Act to Regulate Commerce that "a ll cornplaints for the recovery of damages shall be filed with the Commission within two years from the time the cause of action accrues, and not after," is not a mere statute of limitation but is jurisdictional. The "cause of action accrues" to a shipper, within the meaning of this provision, when the unreasonable charges are paid, not when the shipment is received or delivered by the carrier. It having been definitely settled by prior decisions of this court that the time when a "cause of action accrues" is the time when suit may first be legally instituted upon it, it must be assumed that Congress, in using that expression without qualifying words, adopted the meaning thus attached to it. In the absence of other modes of judicial review, the Supreme Court of the District of Columbia has power to direct the Interstate Commerce Commission by mandamus to entertain and proceed to adjudicate a cause which it has erroneously declared not to be within its jurisdiction. 42 App. D. C. 514, reversed.

The facts of this case are not disputed and are as follows: By mistake in printing its tariff, the published rate of the Louisville & Nashville Railroad Company on coal from mines in Kentucky to Speeds, Ind., was increased on July 29, 1906, to $1.10 per ton from $1, which had been the rate before. The mistake was not noticed and the old rate was charged and paid by relator (plaintiff in error) on shipments until the following February, when, the increased published rate being discovered, it was charged and collected until the next April, when the former rate was restored. Promptly on April 19, 1907, the relator wrote the Interstate Commerce Commission, explaining the circumstances, and requesting that the railroad company be authorized to refund the overcharges paid, February 11 to April 10, 1907, amounting to $595.65. The Commission replied to this letter, that if the railroad company would file with the Commission an admission that the rate had been increased through error and would ask for authority to make the refund, the subject would receive consideration. This statement of the Commission was immediately communicated to the railroad company, but it refused to make the required admission of mistake and to request authority to make the refund until the full published rate was paid on shipments made before the mistake was discovered. This led to dispute and delay, with the result that these excess charges ($1,335.25) were not paid until February 1, 1911. In the following November the relator filed its petition with the Commission asking for an order permitting the railroad company to refund the entire amount, in excess of the former rate, paid under the mistakenly published tariff. The railroad company admitted that it never in ended to increase the rate and consented that the reparation order prayed for should be issued. The Commission found, as a matter of fact, that the mistakenly published rate of $1.10 was unreasonable to the extent that it exceeded $1 per ton, and then, holding that all complaints for the recovery of damages must be filed with the Commission within two years from the date of the delivery of the shipment, it ruled that the letter of the relator to the Commission of April 19, 1907, making claim for the overcharges which had been paid between February 11 and April 10, 1907, was sufficient to satisfy the law, and ultimately issued to the railroad company authority to pay this amount to the relator; but the Commission further held that the complaint for the recovery of the overcharges for the period prior to February 11th, although filed within nine months of the date of their payment, was not in time to meet the requirement of section 16 of the act that 'all complaints for the recovery of damages shall be filed with the Commission within two years from the time the cause of action accrues, and not after,' and that 'they (the overcharges) are, therefore, barred from our consideration.' The relator filed its petition for a writ of mandamus in the Supreme Court of the District of Columbia, which petition was denied, and the judgment of the Court of Appeals for the District affirming this holding is here for review. The lower courts arrived at their conclusion by holding that the Commission entertained jurisdiction over the portion of the relator's claim which was rejected; that in the exercise of that jurisdiction it held the claim to be barred and that this was an exercise of discretion committed by law to the Commission which is not subject to control by the writ of mandamus. We think the courts fell into error in thus interpreting the language used by the Commission in its report. As to the portion of the claim which we are considering, the report of the Commission is as follows: 'The only question left for determination is whether the claim is barred, in whole or in part, by the following limitation of the act: 'All complaints for the recovery of damages shall be filed with the Commission within two years from the time the cause of action accrues, and not after.' 'The Commission holds that the date when the cause of action accrues is the date of the delivery of the shipment. Blinn Lumber Co. v. Southern Pacific Co., 18 Interst. Com. Com'n R. 430. * * * No complaint was filed by complainant [relator] with reference to shipments made before February 1st, 1907, until the petition here in question was filed on November 15th, 1911, and these shipments had all been delivered more than four years before the filing of that petition. They [the overcharges] are therefore barred from our consideration.' The concluding sentence thus used by the Commission, that 'They [the overcharges] are therefore barred from our consideration,' implies that in the opinion of the Commission the two-year provision of the sixteenth section of the act is a limitation upon its power, and that the construction which it gave to this limitation placed the claim we are considering so beyond its jurisdiction that it could not consider it, and reference to the case cited as authority for its conclusion, Blinn Lumber Co. v. Southern Pacific Co., 18 Interst. Com. Com'n R. 430, makes it clear that such was the intended holding. In that case the Commission expresses its conclusion in this form: 'After careful consideration of the contentions of all parties * * * as to the right of the complainant' (after two years) 'to maintain this proceeding for reparation before the Commission, it is our conclusion that we are without power to grant the relief prayed for.' And in Anaconda Copper Mining Co. v. C. & E. R. R. Co., 19 Interst. Com. Com'n R. 592, decided seven months later, the Commission makes a yet more emphatic announcement of its views upon the subject, saying: 'In this report only such shipm nts will be considered as moved within two years from the time the complaint embracing them was filed, and with respect to shipments moving prior to such two-year period we think it proper to state that, following the spirit as well as the letter of the limitation clause contained in section 16 of the act, we believe we are without jurisdiction, and therefore we will not make any finding whatever concerning such shipments or the rates and charges assessed thereon.' It is thus made very clear that the holding of the Commission was, not that, having jurisdiction over the claim upon consideration thereof, is was found to be barred by a statute of limitation, but that the language of the two-year provision of the act was jurisdictional, and placed it so beyond its power that it could not be considered at all, and that, for this reason, the petition, to the extent it related to the overcharges paid on February 1, 1911, was dismissed. We agree with this conclusion of the Commission, that the two-year provision of the act is not a mere statute of limitation, but is jurisdictional—is a limit set to the power of the Commission as distinguished from a rule of law for the guidance of it in reaching its conclusion. Interstate Commerce Commission v. Northern Pacific Ry. Co., 216 U. S. 538, 544, 30 Sup. Ct. 417, 54 L. Ed. 608. That such was the opinion of this court was clearly intimated in Phillips v. Grand Trunk Western R. R. Co., 236 U. S. 662, 667, 35 Sup. Ct. 444, 59 L. Ed. 774, and it conforms in principle to the holdings of the court with respect to a similar limitation, but for six years, on the jurisdiction of the Court of Claims. Ford v. United States, 116 U. S. 213, 6 Sup. Ct. 360, 29 L. Ed. 608; Finn v. United States, 123 U. S. 227, 232, 8 Sup. Ct. 82, 31 L. Ed. 128; United States v. Ward. well, 172 U. S. 48, 52, 19 Sup. Ct. 86, 43 L. Ed. 360. That the Supreme Court of the District of Columbia, in a proper case, has power to direct the Commission by mandamus to entertain and proceed to adjudicate a cause which it has erroneously declared to be not within its jurisdiction is decided in Interstate Commerce Commission v. Humboldt Steamship Co., 224 U. S. 474, 32 Sup. Ct. 556, 56 L. Ed. 849. If the Commission did so err, on the authority of many decisions, among them Ex parte Russell, 13 Wall. 664, 20 L. Ed. 632, Ex parte Schollenberger, 96 U. S. 369, 24 L. Ed. 853, Hollon Parker, Petitioner, 131 U. S. 221, 9 Sup. Ct. 708, 33 L. Ed. 123, In re Grossmayer, Petitioner, 177 U. S. 48, 20 Sup. Ct. 535, 44 L. Ed. 665, and Interstate Commerce Commission v. Humboldt Steamship Co., 224 U. S. 474, 485, 32 Sup. Ct. 556, 56 L. Ed. 849, the courts may correct such error on a petition for mandamus, where, as in this case, the erroneous decision cannot be reviewed on appeal or writ of error. There remains the question, Did the Commission place an erroneous interpretation upon the scope of its jurisdiction under this two-year provision in section 16 of the act, in excluding the claim which we have before us from its consideration? This provision first appears in an amendment to the act, approved June 29, 1906 (34 Stat. vol. 1, c. 3591, § 5, p. 590), and in January, 1908 the Commission published as its construction of the limitation the following, viz.: 'A cause of action accrues, as that phrase is used in the act, on the date the freight charges are actually paid.' The decisions of the Commission show (15 Interst. Com. Com'n R. 201, 235, 533; Marshall & Michel Grain Co. v. St. L. & S. F. R. R. Co., 16 Interst. Com. Com'n R. 385) that it adhered to this construction until May, 1910, when in Blinn Lumber Co. v. Southern Pacific Co., 18 Interst. Com. Com'n R. 430, it changed its ruling and adopted the holding that the cause of action accrues when the shipment was delivered. This change, as the report of the Commission shows, resulted, not from any modification of opinion as to the meaning of the language used, but from the conclusion of a majority of its members that such interpreta ion was necessary to give effect to other provisions of the act, especially those relating to rebates and undue preferences. But this two-year provision, obviously enough, relates only to the recovery of money damages, and if Congress had intended that the cause of action of the shipper to recover damages for unreasonable charges should accrue when the shipment was received, or when it was delivered by the carrier, we cannot doubt that a simple and obvious form for expressing that intention would have been used, instead of the expression 'from the time the cause of action accrues.' And in this connection we cannot fail to recognize that when the statute was enacted the time when a cause of action accrues had been settled by repeated decisions of this court to be when a suit may first be legally instituted upon it (Amy v. Dubuque, 98 U. S. 470, 474, 25 L. Ed. 228; United States v. Taylor, 104 U. S. 216, 222, 26 L. Ed. 721; Rice v. United States, 122 U. S. 611, 617, 7 Sup. Ct. 1377, 30 L. Ed. 793), and, since no clearly controlling language to the contrary is used, it must be assumed that Congress intended that this familiar expression should be given the well-understood meaning which had been given to it by this court. We therefore conclude, as was held, without special discussion of the point, in Phillips v. Grand Trunk Western R. R. Co., 236 U. S. 662, 666, 668, 35 Sup. Ct. 444, 59 L. Ed. 774, which in this respect really rules the case before us, that the proper construction of this jurisdictional provision requires that the cause of action of the shipper in this case shall be held not to have accrued until payment had been made of the unreasonable charges, and that, therefore, the interpretation which the Commission placed upon its jurisdictional power is erroneous. The unusual and purely fortuitous circumstance, that the character of this jurisdictional limitation on the power of the Commission chances to be such that the giving of a correct construction to it must result in determining the character of the decision which the Commission must render when the case is returned to it, cannot affect the power of this court or that of the lower courts to define what that jurisdiction is under the act of Congress or the duty of the Commission to accept and act upon such definition when announced. It results that the judgment of the Court of Appeals must be reversed and that the case must be remanded to the Supreme Court of the District of Columbia, with direction that a writ of mandamus issue to the Commission, directing that it proceed to dispose of the claim in controversy under the construction placed upon its jurisdiction by this opinion. Reversed.

246.US.343

A law of Idaho (Rev. Codes, 1908, § 6872), applicable to the public domain, provides that any person having charge of sheep who allows them to graze on any range previously occupied by cattle, is guilty of a misdemeanor, and that priority of possessory right between cattle and sheep owners to any range is to be determined by the priority in the usual and customary use of it, as a cattle or sheep range. Experience, inducing this and similar laws, had, says the Supreme Court of the State, shown that use of a range by sheep unfits it for cattle, but not vke versa; and that segregation is essential to protect the cattle industry and prevent serious breaches of the peace between cattlemen and sheepmen. Held: (1) That the police power of the State extends over the federal public domain, at least where there is no legislation by Congress on the subject. (2) That in segregating sheep from cattle the Idaho law was primarily designed to preserve the peace, and is not an unreasonable or arbitrary exercise of the police power. Z3) That it does not discriminate arbitrarily and deny equal protection in giving preference to cattle owners in prior occupancy without giving a like preference to sheep owners in prior occupancy. (4) That, as a criminal law, it is not wanting in due process, in failing to provide for the ascertainment of the boundaries of a "range" and for determining what length of time is necessary to constitute a prior occupation a "usual" one within its meaning. (5) That it is not in conflict with the clause in § 1 of the "act to prevent unlawful occupancy of the public lands," e.1 49, 23 Stat. 321, which prohibits the assertion of a right to the exclusive use and occupancy of any part of the public lands without claim or color of title made or acquired in good faith, etc., since that clause, as is shown by an examination of the entire act and its history, prohibits merely the assertion of an exclusive right to use or occupati6n by force, intimidation, or by what would be equivalent in effect to an enclosure, whereas the state statute makes no grant, and, in so far as this exclusion of sheep from certain ranges approaches a grant, the result is incidental only, and it operates in favor of horse owners as well as cattle owners. (6) That the exclusion of sheep owners under certain circumstances does not interfere with any rights of a citizen of the United States, Congress not having conferred on citizens the right to graze stock on the public lands, their use for that purpose being .merely by sufferance. 27 Idaho, 797, affirmed.

For more than forty years the raising of cattle and sheep have been important industries in Idaho. The stock feeds in part by grazing on the public domain of the United States. This is done with the gove nment's acquiescence, without the payment of compensation, and without federal regulation. Buford v. Houtz, 133 U. S. 320, 326, 10 Sup. Ct. 305, 33 L. Ed. 618. Experience has demonstrated, says the state court, that in arid and semi-arid regions cattle will not graze, nor can they thrive, on ranges where sheep are allowed to graze extensively; that the encroachment of sheep upon ranges previously occupied by cattle results in driving out the cattle and destroying or greatly impairing the industry; and that this conflict of interests led to frequent and serious breaches of the peace and the loss of many lives.1 Efficient policing of the ranges is impossible; for the state is sparsely settled and the public domain is extensive, comprising still more than one-fourth of the land surface.2 To avert clashes between sheep herdsmen and the farmers who customarily allowed their few cattle to graze on the public domain near their dwellings, the territorial Legislature passed in 1875 the so-called 'Two Mile Limit Law.' It was enacted first as a local statute applicable to three counties, but was extended in 1879 and again in 1883 to additional counties, and was made a general law in 1887.3 After the admission of Idaho to the Union, the statute was re-enacted and its validity sustained by this court in Bacon v. Walker, 204 U. S. 311, 27 Sup. Ct. 289, 51 L. Ed. 499. To avert clashes between the sheep herdsmen and the cattle rangers, further legislation was found necessary; and in 1883 the law (now section 6872 of the Revised Codes) was enacted which prohibits any person having charge of sheep from allowing them to graze on a range previously occupied by cattle.4 For violating this statute the plaintiff in error, a sheep herdsman, was convicted in the local police court and sentenced to pay a fine. The judgment was affirmed by an intermediate appellate court and also by the Supreme Court of Idaho. 27 Idaho, 797, 152 Pac. 280. On writ of error to this court the validity of the statute is assailed on the ground that the statute is inconsistent both with the Fourteenth Amendment and with the act of Congress of February 25, 1885, c. 149, 23 Stat. 321 (Comp. St. 1916, §§ 4997-5002), entitled 'An act to prevent unlawful occupancy of the public lands.' First. It is urged that the statute denies rights guaranteed by the Fourteenth Amendment, namely: Privileges of citizens of the United States, in so far as it prohibits the use of the public lands by sheep owners; and equal protection of the laws, in that it gives to cattle owners a preference over sheep owners. These contentions are, in substance, the same as those made in respect to the 'Two Mile Limit Law' in Bacon v. Walker, supra; and the answer made there is applicable here. The police power of the state extends over the federal public domain, at least when there is no legislation by Congress on the subject.5 We cannot say that the measure adopted by the state is unreasonable or arbitrary. It was found that conflicts between cattle rangers and sheep herders on the public domain could be reconciled only by segregation. In national forests, where the use of land is regulated by the federal government, the plan of segregation is widely adopted.6 And it is not an arbitrary discrimination to give preference to cattle owners in prior occupancy without providing for a like preference to sheep owners in prior occupancy.7 For experience shows that sheep do not require protection against encroachment by cattle, and that cattle rangers are not likely to encroach upon ranges previously occupied by sheep herders. The propriety of treating sheep differently than cattle has been generally recognized.8 That the interest of the sheep owners of Idaho received due consideration is indicated by the fact that in 1902 they opposed the abolition by the government of the free ranges.9 Second. It is also urged that the Idaho statute, being a criminal one is so indefinite in its terms as to violate the guaranty by the Fourteenth Amendment of due process of law, since it fails to provide for the ascertainment of the boundaries of a 'range' or for determining what length of time is necessary to constitute a prior occupation a 'usual' one within the meaning of the act. Men familiar with range conditions and desirous of observing the law will have little difficulty in determining what is prohibited by it. Similar expressions are common in the criminal statutes of other states.10 This statute presents no greater uncertainty or difficulty, in application to necessarily varying facts, than has been repeatedly sanctioned by this court. Nash v. United States, 229 U. S. 373, 377, 33 Sup. Ct. 780, 57 L. Ed. 1232; Miller v. Strahl, 239 U. S. 426, 434, 36 Sup. Ct. 147, 60 L. Ed. 364. Furthermore, any danger to sheep men which might otherwise arise from indefiniteness, is removed by section 6314 of Revised Codes, which provides that: 'In every crime or public offence there must exist a union, or joint operation, of act and intent, or criminal negligence.' Third. It is further contended that the statute is in direct conflict with the Act of Congress of February 25, 1885.11 That statute which was designed to prevent the illegal fencing of public lands, contains at the close of section 1 the following clause with which the Idaho statute is said to conflict: 'And the assertion of a right to the exclusive use and occupancy of any part of the public lands of the United States in any state or any of the territories of the United States, without claim, color of title, or asserted right as above specified as to inclosure, is likewise declared unlawful, and hereby prohibited.' An examination of the federal act in its entirety makes it clear that what the clause quoted from section 1 sought to prohibit was merely the assertion of an exclusive right to use or occupation by force or intimidation or by what would be equivalent in effect to an inclosure. That this was the intent of Congress is confirmed by the history of the act. The reports of the Secretary of the Interior upon whose recommendation the act was introduced, the reports of the committees of Congress, and the debates thereon indicate that this alone was the evil sought to be remedied,12 and to such action only does its prohibition appear to have been applied in practice.13 Although Idaho had, by statute, excluded sheep from portions of the public domain since 1875, no reference to the fact has been found in the discussion which preceded and followed the enactment of the federal law, nor does any reference seem to have been made to the legislation of other states which likewise excluded sheep, under certain circumstances, from parts of the public domain.14] And no case has been found in which it was even urged that these state statutes were in conflict with this act of Congress. The Idaho statute makes no attempt to grant a right to use public lands. McGinnis v. Friedman, 2 Idaho (Hasb.) 393, 17 Pac. 635. The state, acting in the exercise of its police power, merely excludes sheep from certain ranges under certain circumstances. Like the forcible entry and detainer act of Washington which was held in Denee v. Ankeny (decided March 4, 1918) 246 U. S. 208, 38 Sup. Ct. 226, 62 L. Ed. ——, not to conflict with the homestead laws, the Idaho statute was enacted primarily to prevent breaches of the peace. The incidental protection which it thereby affords to cattle owners does not purport to secure to any of them, or to cattle owners collectively, 'the exclusive use and occupancy of any part of the public lands.' For every range from which sheep are excluded remains open not only to all cattle, but also to horses, of which there are many in Idaho.15 This exclusion of sheep owners under certain circumstances does not interefere with any rights of a citizen of the Unite States. Congress has not conferred upon citizens the right to graze stock upon the public lands. The government has merely suffered the lands to be so used. Buford v. Houtz, supra. It is because the citizen possesses no such right, that it was held by this court that the Secretary of Agriculture might, in the exercise of his general power to regulate forest reserves, exclude sheep and cattle therefrom. United States v. Grimaud, 220 U. S. 506, 31 Sup. Ct. 480, 55 L. Ed. 563; Light v. United States, 220 U. S. 523, 31 Sup. Ct. 485, 55 L. Ed. 570. All the objections urged against the validity of the statute are unsound. The judgment of the Supreme Court of Idaho is Affirmed. Mr. Justice VAN DEVANTER and Mr. Justice McBEYNOLDS dissent.