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245.US.345

An order of a state public service commission requiring a city gas company to extend its mains and service pipes to meet the reasonable needs of a growing community within the city can not be deemed arbitrary or capricious, and so contrary to the due process clause of the Fourteenth Amendment, where it appears that the company was accorded full hearing before the commission and on review in the state courts, that it is the only one authorized to serve the community in question with gas, and that the rate of return upon the cost of the extension, though low initially-from 21K% to 4% per annum-, will probably soon become ample with the growth of the community; and where, moreover, the record does not show, and the company does not claim, that the comparatively small loss asserted would render its business as a whole unprofitable. 171 App. Div. 580; 219 N. Y. 84, 681, affirmed.

It sufficiently appearing that the Court of Appeals retained practical control over the record and judgment in this case, while the motion for reargument in that court was pending, the motion to dismiss the writ of error on the ground that the application for it came too late, will be denied, and the case will be disposed of upon its merits. The Public Service Commission of the State of New York for the First District ordered the New York & Queens Gas Company to extend its gas mains and service pipes in such a manner as would be 'required reasonably to serve with gas' the community known as Douglaston, including Douglas Manor, which was located about a mile and a half beyond the then terminus of the company's gas mains, but within the Third ward of the borough of Queens, city of New York. When this order of the Public Service Commission was reviewed by the Supreme Court at the Appellate Division, that court assumed that it had authority to review generally the reasonableness of the order of the Public Service Commission, and upon such review found the order unreasonable and annulled it. 171 App. Div. 580, 157 N. Y. Supp. 707. From the decision of the Appellate Division an appeal was taken to the Court of Appeals, which reversed that decision (219 N. Y. 84, 113 N. E. 795, Ann. Cas. 1916E, 1042), and held that the Appellate Division had no power under the New York law to substitute its own judgment for the determination of the Public Service Commission as to what was reasonable, under the circumstances of the case. The case is now in this court for review of the judgment entered upon the decision of the Court of Appeals and it is presented upon a single assignment of error, viz.: 'That the order of the Public Service Commission * * * was illegal and void in that it deprived the Gas Company of its property with out due process of law and denied to it the equal protection of the laws, in violation of the Fourteenth Amendment to the Constitution of the United States, in requiring the company to extend its distributing system under great physical difficulties and at enormous expense to an independent and remote community which the company was under no present duty to supply with gas when it appeared that the Gas Company would not obtain an adequate return from the expenditure required to make such extension.' More compactly stated, this assignment of error is, that the order deprived the gas company of its property without due process of law, because obedience to it would require an expenditure of money upon which the prospective earnings would not provide an adequate return. The Court of Appeals of New York decided that the Public Service Commission was created to perform the important function of supervising and regulating the business of public service corporations; that the state law assumes that the experience of the members of the Commission especially fits them for dealing with the problems presented by the duties and activities of such corporations; that the courts in reviewing the action of the Commission have no authority to substitute their judgment as to what is reasonable in a given case for that of the Commission, but are limited to determining whether the action complained of was capricious or arbitrary and for this reason unlawful; and that it was clearly within the power of the Commission to make the order which is here assailed. This interpretation of the statutes of New York is conclusive, and the definition, thus announced, of the power of the courts of that state to review the decision of the Public Service Commission, based as it is in part on the decision in Interstate Commerce Commission v. Illinois Central R. R. Co., 215 U. S. 452, 470, 30 Sup. Ct. 155, 54 L. Ed. 280, differs but slightly, if at all, from the definition by this court of its own power to review the decisions of similar administrative bodies, arrived at in many cases in which such decisions have been under examination. Typical cases are: Baltimore & Ohio R. R. Co. v. Pitcairn Coal Co., 215 U. S. 481-494, 30 Sup. Ct. 164, 54 L. Ed. 292; Kansas City Southern Co. v. United States, 231 U. S. 423, 443, 444, 34 Sup. Ct. 125, 58 L. Ed. 296, 52 L. R. A. (N. S.) 1; Louisiana R. R. Commission v. Cumberland Tel. & Tel. Co., 212 U. S. 414, 420-422, 29 Sup. Ct. 357, 53 L. Ed. 577; Interstate Commerce Commission v. Union Pac. Railroad Co., 222 U. S. 541-547, 32 Sup. Ct. 108, 56 L. Ed. 308; and Cedar Rapids Gas Co. v. Cedar Rapids, 223 U. S. 655, 668, 32 Sup. Ct. 389, 56 L. Ed. 594. It is the result of these and similar decisions that, while in such cases as we have here this court is confined to the federal question involved and therefore has not the authority to substitute its judgment for that of an administrative commission as to the wisdom or policy of an order complained of, and will not analyze or balance the evidence which was before the Commission for the purpose of determining whether it preponderates for or against the conclusion arrived at, yet it will, nevertheless, enter upon such an examination of the record as may be necessary to determine whether the federal constitutional right claimed has been denied, as, in this case, whether there was such a want of hearing or such arbitrary or capricious action on the part of the Commission as to violate the due process clause of the Constitution. The result of the application of this rule to the record before us cannot be doubtful. The Gas Company appeared at the hearing before the Commission, cross-examined witnesses, introduced testimony and argued the case. On writ of certiorari the case was re-examined by the Appellate Division of the Supreme Court, and it was again reviewed on appeal, by the Court of Appeals. In the matter of procedure plainly the company cannot complain of want of due process of law. The record shows that the company at the time of the hearing had franchises authorizing it to manufacture and sell gas throughout the Third ward of the borough of Queens, in the city of New York, and that, it being the only company which had franchises for any part of that area, the community to which it was ordered to extend its distributing system must continue without gas if the order does not become effective. The community of Douglaston, including Douglas Manor, was a rapidly growing settlement of three hundred and thirty houses, of an average cost of $7,500, thus giving assurance that the occupiers of them would be probable users of gas, and which, with very few exceptions, were occupied by families the entire year. While the community is described in the assignment of error as 'independent and remote' the record shows that it was served at the time by franchise holding companies, which supplied water, electric light and telephone to its inhabitants, and that the number of houses had doubled within a few years. The length of the extension ordered was about one and one-half miles but the mains of the company, which extended to the point nearest to Douglaston, were being used to almost their full capacity, and for this reason the estimated cost of making the improvement included new mains of some eight miles in length. The engineer of the Gas Company testified that the cost of the ordered extension would be approximately $86,000, while the engineer for the Commission estimated the cost at $61,000. The Commission found that only $45,000 of the new investment required would be properly chargeable against the extension ordered, since the newer and larger mains would be available in part for other business. On the basis of the company's estimate of the cost of the extension the income would be about 2 1/4% per annum, and, on the basis of the estimate by the Commission of the part of the cost properly chargeable to the Douglaston community the income would be 4%. There is no showing in the record as to the fair value of the entire property of the Gas Company used in the public service, nor of the rate of return which it was earning thereon, and therefore even if the return on the cost of complying with the order be conceded to be inadequate, this would not suffice to render the order legally unreasonable. Atlantic Coast Line R. R. Co. v. North Carolina Corporation Commission, 206 U. S. 1, 24-26, 27 Sup. Ct. 585, 51 L. Ed. 933, 11 Ann. Cas. 398; Mo. Pac. Ry. Co. v. Kansas, 216 U. S. 262, 30 Sup. Ct. 330, 54 L. Ed. 472; Puget Sound Traction Co. v. Reynolds, 244 U. S. 574, 580, 37 Sup. Ct. 705, 61 L. Ed. 1325. It is significant also that within a year preceding the hearing by the Commission the Gas Company proposed in writing to the residents of Douglaston that it would extend its mains to the settlement if they would advance $10,000, to be returned in semi-annual credits upon the amount of gas consumed. These references to the evidence will suffice. They show this Public Service Commission ordering a public service corporation to render an important public service, under conditions such that in the aspect least favorable to the Gas Company the initial return upon the investment involved would be low but with every prospect of its soon becoming ample, and also that no claim was made by the company that the comparatively small loss which the company claims would result would render its business as a whole unprofitable. Corporations which devote their property to a public use may not pick and choose, serving only the portions of the territory covered by their franchises which it is presently profitable for them to serve and restricting the development of the remaining portions by leaving their inhabitants in discomfort without the service which they alone can render. To correct this disposition to serve where it is profitable and to neglect where it is not, is one of the important purposes for which these administrative commissions, with large powers, were called into existence, with an organization and with duties which peculiarly fit them for dealing with problems such as this case presents, and we agree with the Court of Appeals of New York in concluding that the action of the Commission complained of was not arbitrary or capricious, but was based on very substantial evidence, and therefore that, even if the courts differed with the Commission as to the expediency or wisdom of the order, they are without authority to substitute for its judgment their views of what may be reasonable or wise. Since no constitutional right of the plaintiff in error is invaded by the order complained of, the judgment under review must be Affirmed.

245.US.20

So vital a governmental power as the power, upon just compensation, to take private property for public use, cannot be divested through contracts made by the State. Such contracts are not within the protection of the contract clause of the Constitution. Proceedings taken by a city to condemn land for a street through the grounds of a charitable corporation were resisted, in reliance on an act by which for valuable considerations the legislature had prohibited such takings without the corporation's consent. The city undertook to condemn not only the land but also the right under the contract. Held, that the contract could not be successfully opposed to the power of condemnation; and this quite apart from the attempt to condemn the contract right itself, since, if the contract exemption were otherwise valid, its defeat by such a method would be a mere evasion. Without departing from the settled rule that a writ of error will be dismissed if its total want of merit is shown conclusively by decisions of this court extant at time of decision below, in this case the course and resulting aspect of the proceedings below warrant a decree of affirmance. 254 Pa. St. 392, affirmed. THE case is stated in the opinion.

Whether contract obligations were impaired in violation of rights of the plaintiff in error protected by the Constitution of the United States as the result of the decision below, is the sole question we are called upon to decide on this record. It thus arises: The plaintiff in error, a charitable institution was organized under the laws of Pennsylvania and in 1841 it established on a tract of land in the city of Philadelphia a hospital for the care and cure of the insane. Solicitous lest the opening of streets, lanes and alleys through its grounds might injuriously affect the performance of its work, in 1854 a committee of the managers of the hospital memorialized the Legislature on that subject and this resulted in the passage of a law specially forbidding the opening of any street or alley through the grounds in question without the consent of the hospital authorities. The act was conditioned upon the hospital making certain payments and furnishing ground for a designated public street or streets and these terms were accepted by the hospital and complied with. In 1913 the city, within the authority conferred upon it by the state, took the necessary preliminary steps to acquire by eminent domain land for the opening of a street through the hospital grounds and to prevent the accomplishment of this result the present suit was begun by the hospital to protect its right of property and its alleged contract under the act of 1854 (P. L. 385). As the result of proceedings in the state court the purpose of the city was so shaped as to cause it to seek to take under the right of eminent domain, not only the land desired for the street, but the rights under the contract of 1854 and there was a judgment against the hospital and in favor of the city in the trial court which was affirmed by the Supreme Court by the judgment which is under review on this writ of error. 254 Pa. 392, 98 Atl. 1077. The conclusions of the court were sustained in a per curiam opinion pointing out that there was no question involved of impairing the contract contained in the act of 1854 since the express purpose of the city was to exert the power of eminent domain not only as to the land proposed to be taken, but as to the contract itself. The right to do both was upheld on the ground that the power of eminent domain was so inherently governmental in character and so essential for the public welfare that it was not susceptible of being abridged by agreement and therefore the action of the city in exerting that power was not repugnant either to the state Constitution or to the contract clause of the Constitution of the United States. It is apparent that the fundamental question, therefore, is, did the Constitution of the United States prevent the exertion of the right of eminent domain to provide for the street in question because of the binding effect of the contract previously made excluding the right to open the street through the land without the consent of the hospital. We say this is the question, since if the possibility were to be conceded that power existed to restrain by contract the further exercise by government of its right to exert eminent domain, it would be unthinkable that the existence of such right of contract could be rendered unavailing by directing proceedings in eminent domain against the contract, for this would be a mere evasion of the assumed power. On the other hand, if there can be no right to restrain by contract the power of eminent domain, it must also of necessity follow that any contract by which it was sought to accomplish that result would be inefficacious for want of power. And these considerations bring us to weigh and decide the real and ultimate question; that is, the right to take the property by eminent domain, which embraces within itself, as the part is contained in the whole, any supposed right of contract limiting or restraining that authority. We are of opinion that the conclusions of the court below in so far as they dealt with the contract clause of the Constitution of the United States were clearly not repugnant to such clause. There can be now, in view of the many decisions of this court on the subject, no room for challenging the general proposition that the states cannot by virtue of the contract clause be held to have divested themselves by contract of the right to exert their governmental authority in matters which from their very nature so concern that authority that to restrain its exercise by contract would be a renunciation of power to legislate for the preservation of society or to secure the performance of essential governmental duties. Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. Ed. 989; Stone v. Mississippi, 101 U. S. 814, 25 L. Ed. 1079; Butchers' Union Co. v. Crescent City Co., 111 U. S. 746, 4 Sup. Ct. 652, 28 L. Ed. 585; Douglas v. Kentucky, 168 U. S. 488, 18 Sup. Ct. 199, 42 L. Ed. 553; Manigault v. Springs, 199 U. S. 473, 26 Sup. Ct. 127, 50 L. Ed. 274; Texas & New Orleans R. R. Co. v. Miller, 221 U. S. 408, 31 Sup. Ct. 534, 55 L. Ed. 789. And it is unnecessary to analyze the decided cases for the purpose of fixing the criteria by which it is to be determined in a given case whether a power exerted is so governmental in character as not to be subject to be restrained by the contract clause, since it is equally true that the previous decisions of this court leave no doubt that the right of government to exercise its power of eminent domain upon just compensation for a public purpose comes within this general doctrine. Charles River Bridge v. Warren Bridge, 11 Pet. 420, 9 L. Ed. 773; West River Bridge Co. v. Dix, 6 How. 507, 12 L. Ed. 535; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 6 Sup. Ct. 252, 29 L. Ed. 516; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 17 Sup. Ct. 718, 41 L. Ed. 1165; Offield v. Railroad Company, 203 U. S. 372, 27 Sup. Ct. 72, 51 L. Ed. 231; Cincinnati v. Louisville & Nashville R. R. Co., 223 U. S. 390, 32 Sup. Ct. 267, 56 L. Ed. 481. The principle then upon which the contention under the Constitution rests having been, at the time the case was decided below, conclusively settled to be absolutely devoid of merit, it follows that a dismissal for want of jurisdiction might be directed. Equitable Life Assurance Society v. Brown, 187 U. S. 308, 314, 23 Sup. Ct. 123, 47 L. Ed. 190; Consolidated Turnpike Co. v. Norfolk, etc., Ry. Co., 228 U. S. 596, 600, 33 Sup. Ct. 605, 57 L. Ed. 982; Manhattan Life Insurance Co. v. Cohen, 234 U. S. 123, 137, 34 Sup. Ct. 874, 58 L. Ed. 1245. In view, however, of the course of the proceedings below and the aspect which the case took as resulting from those proceedings, without departing from the rule settled by the cases referred to. we think our decree may well be one, not of dismissal, but of affirmance. Affirmed.

242.US.350

Upon 'considering the evidence the court finds grave reasons for agreeing with the District Judge that the respondent copied the petitioner's patented invention. The rule which gives conclusive effect to a finding made by a judge who saw the witnesses, when there is testimony consistent with it and the finding depends on conflicting testimony or the credibility of witnesses, is peculiarly applicable in a case wherein a patent is assailed by oral evidence of an alleged unpatented anticipation. One who opposes a patent by oral evidence of a prior discovery, must prove his case beyond a reasonable doubt. The Barbed Wire Patent, 143 U. S. 275, 284. 227 Fed. Rep. 93, reversed.

This is a suit brought by the petitioner for the infringement of a patent for a vulcanizing device, 'including a vulcanizing member constructed to retain a combustible fluid upon and in contact with its upper surface, the lower surface of the vulcanizing member being adapted to be applied to the material to be vulcanized.' In other words, the upper side of the upper of two sheets of metal, between which, when heated, the material is to be vulcanized, is fashioned as a cup in which gasolene can be burned to heat it. The specific character of the machine has made of it a valuable success. The respondent admitted making and selling devices like the plaintiff's, but alleged and testified that he made them first. In a previous suit by the plaintiff, the plaintiff and the present defendant testified and District Judge Geiger gave the plaintiff a decree. In this case again the district judge in his turn saw the defendant and heard additional evidence, but, after criticizing it, said that his own judgment was that the new testimony would not have changed Judge Geiger's opinion, and, while professing to follow that opinion, according to the usage of district judges in such matters, evidently, to our mind, signified that he agreed with Judge Geiger, although in terms only following what had been done. The circuit court of appeals treated the action of the district judge as a mere yielding to the authority of the former decision, and reversed the decree upon the evidence as it stood in print. We are unable to agree with the circuit court of appeals. There is no question that the plaintiff did not copy the defendant, that he put his invention into the market in November, 1911, and that the defendant did not put out his vulcanizer until February or March of the following year; but the defendant says that on August 7, 1911, twelve days before the plaintiff made the drawing that depicted his invention, he had had castings made that are substantially identical with the plaintiff's device and identical in particulars that the plaintiff's patent made material, but that the defendant declared to answer no useful end. The plaintiff's cup had pins projecting from the bottom, arranged in circles around a central one, which his specification described as serving to conduct the heat of the flame downwards into the vulcanizing plate and the combustible fluid. The defendant's original casting showed pins of similar arrangement. He explained that the similarity was accidental, that the pins were of no use, but that 'we expected to tell the poor, unsuspecting public that they conducted the heat . . . to the bottom of the vulcanizer,' 'which is a false statement.' It needs no emphasis to point out the improbability that the defendant, at nearly the same time as the plaintiff, should have hit by accident upon the same configuration in striking particulars that he regarded as immaterial, and, merely to deceive the public, have invented the same by no means obvious explanation that was offered seriously by the plaintiff, but that the defendant regarded as false. The improbability is intensified by a further coincidence also explained by the defendant as accident. The lugs by which the cup was to be fastened to the lower surface happened to face in opposite directions in the plaintiff's device, although later they were made to face the same way. The defendant's also faced in opposite directions. It surpasses the power of belief that a man who testified that there was nothing in the invention, that it was merely arranging to fasten a ladle to a board, should have come by pure chance to make so exact a replica of the plaintiff's specific form. Inspection of the two castings shows more clearly than can words that one must have been a copy of the other. The plaintiff and defendant lived far apart. Adamson had no chance to copy Gilliland. On the other hand, after Adamson's vulcanizers were made public, Gilliland could copy them. The man who made the castings shows that the resemblance was even more complete than we have stated, by reason of the presence of a base plate, although Gilliland denies that he had one at that time. There is no doubt that the defendant had castings made. The essential question is the time when they first were made. We shall not discuss the evidence of those concerned in the making beyond recurring to the impression that the witnesses made upon the district judge, and mentioning that a dray ticket relied upon as fixing that date appears to have been open to grave suspicion from its character, marking, and other details. Considering that a patent has been granted to the plaintiff, the case is pre-eminently one for the application of the practical rule that so far as the finding of the master or judge who saw the witnesses 'depends upon conflicting testimony or upon the credibility of witnesses, or so far as there is any testimony consistent with the finding, it must be treated as unassailable.' Davis v. Schwartz, 155 U. S. 631, 636, 39 L. ed. 289, 291, 15 Sup. Ct. Rep. 237. The reasons for requiring the defendant to prove his case beyond a reasonable doubt are stated in the case of Barbed Wire Patent (Washburn & M. Mfg. Co. v. Beat 'Em All Barbed Wire Co.) 143 U. S. 275, 284, 36 L. ed. 154, 158, 12 Sup. Ct. Rep. 443, 450. Upon these considerations and a review of the evidence we are of opinion that the decree must be reversed. Decree reversed.

243.US.264

In the absence of consent, a corporation of one State may not be summoned in another, in an action in personam, unless it is doing business in the State where it is served in such manner and to such extent as to warrant the inference that it is present there. The process must be served on some authorized agent of the corporation. The questions whether the corporation was doing business and whether the person served was its authorized agent being vital to the jurisdiction, either, if duly raised, is subject to be reviewed directly by this court, as to findings of fact as well as legal conclusions, upon certificate from the District Court under § 238 of the Judicial Code. A railroad corporation not owning or operating any part of its railway, or holding other property, within a State, may not be said to be doing business there merely because cars shipped by it, loaded with the goods of its shippers, pass into that State, and are returned therefrom, over the line of a connecting carrier (each carrier receiving only its proportionate share of the freight charged for the interstate haul,) or because the connecting carrier, within the State, sells coupon tickets and displays the other carrier's name at its station and in the telephone directory, to promote travel and public convenience. The fact that corporations subsidiary to another are doing business in a State does not warrant finding that the other is present there, doing business. Whether a corporation doing business in a State may be served there on a cause of action arising in another State and unrelated to the business in the first-not decided. An arrangement by counsel, designed merely to facilitate an attempted service of summonis on the president of a corporation while passing through a State and engaged on his private affais, does not estop the corporation from contesting the jurisdiction upon the ground that it was not doing business in the State.

A foreign corporation is amenable to process to enforce a personal liability, in the absence of consent, only if it is doing business within the state in such manner and to such extent as to warrant the inference that it is present there. And even if it is doing business within the state, the process will be valid only if served upon some authorized agent. St. Louis Southwestern R. Co. v. Alexander, 227 U. S. 218, 226, 57 L. ed. 486, 488, 33 Sup. Ct. Rep. 245, Ann. Cas. 1915B, 77. Whether the corporation was doing business within the state, and whether the person served was an authorized agent, are questions vital to the jurisdiction of the court. A decision of the lower court on either question, if duly challenged, is subject to review in this court; and the review extends to findings of fact as well as to conclusions of law. Herndon-Carter Co. v. James N. Norris & Co. 224 U. S. 496, 56 L. ed. 857, 32 Sup. Ct. Rep. 550; Wetmore v. Rymer, 169 U. S. 115, 42 L. ed. 682, 18 Sup. Ct. Rep. 293. The main question presented here is whether the plaintiff in error—defendant below—was doing business in New York. The Philadelphia & Reading Railway Company, a Pennsylvania corporation, operated a railroad in that state and in New Jersey. McKibbin, a citizen and resident of New York, was a brakeman in one of its New Jersey freight yards. For injuries sustained there, he brought this action in the United States district court for the southern district of New York. The summons was served on defendant's president, while he was passing through New York, engaged exclusively on personal matters unconnected with the company's affairs. The defendant appeared specially in the cause for the sole purpose of moving to set aside the service of the summons; and invoked the provisions of the Federal Constitution guarantying due process of law. The motion was denied 'upon the sole ground that upon the facts stated in the affidavits said defendant is doing business within the state of New York, so as to be subject to service of process within said state.' Under a right reserved in the order, the objection to the jurisdiction was renewed in the answer, and insisted upon at the trial before the jury. The motion to dismiss was again heard upon the affidavits originally presented, and was denied. Exceptions were duly taken. A verdict was rendered for the plaintiff; judgment entered thereon; and the case brought here on writ of error; the question of jurisdiction being certified in conformity to § 238 of the Judicial Code [36 Stat. at L. 1157, chap. 231, Comp. Stat. 1913, § 1215]. The affidavits established the following facts: No part of the Philadelphia & Reading's railroad is situated within the state of New York. It has no dock, or freight or passenger ticket office or any other office or any agent or property therein. Like other railroads distant from New York, it sends into that state, over connecting carriers, loaded freight cars, shipped by other persons, which cars are, in course of time, returned. The carriage within that state is performed wholly by such connecting carriers, which receive that portion of the entire compensation paid by the shipper therefor; and the Philadelphia & Reading receives only that portion of the compensation payable for the haul over its own line. The Central Railroad of New Jersey is such a connecting carrier, and has a ferry terminal at the foot of West 23d St., New York City. It issues there the customary coupon tickets over its own and connecting lines, including the Philadelphia & Reading and the Baltimore & Ohio. The whole ticket, in each case, is issued by the Central Railroad of New Jersey; and each coupon so recites. In these tickets there is a separate coupon for the journey over each of the connecting railroads; and the coupon for the journey over each such railroad bears also its name. Each coupon is declared thereon to be 'void if detached.' The Philadelphia & Reading receives in ultimate accounting between the carriers, that portion of the fare which is paid for the journey over its own line. Passengers for points on the Philadelphia & Reading or on the Baltimore & Ohio, or beyond, may reach these railroads over the Central Railroad of New Jersey. At various places in and on this ferry terminal are signs bearing the name 'Philadelphia & Reading,' 'P. & R.,' or 'Reading,'—and also like signs of the 'Baltimore & Ohio,' or 'B. & O.' In the New York Telephone Directory there are inserted the words 'Phila. & Reading Ry., ft. W. 23d St. Chelsea 6550.' These signs on the terminal, this insertion in the telephone directory, and the information given in response to inquiries at the ticket office or over the telephone, are all designed to facilitate and encourage travel and for the convenience of the public. Neither the Philadelphia & Reading nor the Baltimore & Ohio has any office or any employee at the terminal. The Philadelphia & Reading did not direct the insertion of its name in the telephone book. Chelsea 6550 is the number of the trunk line of the Central Railroad of New Jersey; and that company pays the whole expense of the telephone service. An affidavit filed on plaintiff's behalf, states that the names of the Philadelphia & Reading Coal & Iron Company and of the Philadelphia & Reading Trans. Line, Towing Dept., appear in the telephone directory as at 143 Liberty street, telephone number 5672 Cortlandt; and upon information and belief alleges, that these are subsidiary companies of the Philadelphia & Reading, and 'tow the cars of said company from the Jersey points to the city of New York.' The finding that the defendant was doing business within the state of New York is disproved by the facts thus established. The defendant transacts no business there; nor is any business transacted there on its behalf, except in the sale of coupon tickets. Obviously the sale by a local carrier of through tickets does not involve a doing of business within the state by each of the connecting carriers. If it did, nearly every railroad company in the country would be 'doing business' in every state. Even hiring an office, the employment by a foreign railroad of a 'district freight and passenger agent . . . to solicit and procure passengers and freight to be transported over the defendant's line,' and having under his direction 'several clerks and various traveling passenger and freight agents,' was held not to constitute 'doing business within the state.' Green v. Chicago, B. & Q. R. Co. 205 U. S. 530, 51 L. ed. 916, 27 Sup. Ct. Rep. 595. Nor would the fact, if established by competent evidence, that 'subsidiary companies' did business within the state, warrant a finding that the defendant did business there. Peterson v. Chicago, R. I. & P. R. Co. 205 U. S. 364, 51 L. ed. 841, 27 Sup. Ct. Rep. 513. As the defendant did no business in New York, we need not consider its other contention, that it could not be sued there on a cause of action arising in New Jersey, and in no way connected with the business alleged to be done in New York. On this proposition we express no opinion. On behalf of the plaintiff it was also urged that an arrangement between counsel by which service of the summons had been facilitated operated as a waiver of all objections to the jurisdiction of the court. We find this contention to be unfounded. The judgment of the District Court is reversed and the cause remanded to that court with directions to dismiss it for want of jurisdiction. Reversed.

244.US.317

It is a violation of due process of law for a state supreme court to reverse a case and render judgment absolute against the party who succeeded in the trial court, upon a proposition of fact which was ruled to be immaterial at the trial and concerning which he had therefore no occasion and no proper opportunity to introduce his evidence. In a suit to enjoin the collection of a drainage tax, evidence offered by the plaintiff to prove that his land could not be benefited by the drainage improvement was ruled to be inadmissible upon defendant's objection, but was spread upon the record as carried to the state supreme court upon appeal from the judgment in defendant's favor. The latter court, after affirming the judgment, reversed it on rehearing and granted a permanent injunction against the tax upon finding from the answer and testimony before it that the land had not been and could not be benefited; and declined to consider defendant's application for further rehearing. Held, that in thus rendering judgment against the defendant without affording opportunity to introduce evidence upon the question of benefit there was a violation of due process of law, contrary to the Fourteenth Amendment. Upon the sustaining of his objection to evidence upon the ground that the point to which it is directed is immaterial, a party is under no obligation to offer evidence to rebut that which was offered by his opponent and ruled to be inadmissible. A claim that a judgment of a state supreme court violates rights under the Fourteenth Amendment is not too late, though first made by the assignment of errors presented to its Chief Justice when the writ of error from this court was granted, if the aggrieved party was under no duty to anticipate the state court's action before the judgment was rendered and was afforded no opportunity afterwards to present the claim for its consideration.' 138 Louisiana, 917, reversed.

This is a suit for an injunction against the collection of a drainage tax. The drainage district had issued bonds payable out of the tax, and the plaintiff in error, who held some of these bonds, was allowed to intervene in defense. At the trial the plaintiff offered evidence to show that the land taxed was outside of the levee system that the drainage commissioners were building, that it would receive no benefit, and really was an island or islands in the Gulf of Mexico. The defendant objected and the evidence was excluded as inadmissible under the pleadings, but it was spread upon the record and completed in order to carry the case to the supreme court. The defendant then put in testimony that the land was not in the Gulf of Mexico, and that the maps produced could not be relied upon for the depth of the water when water was indicated, but cross-examination to show the physical condition of the property was objected to—the defendants' position being that the question was not open, and that being the ruling of the court. Judgment was entered for the defendant and intervener and was affirmed on appeal by the supreme court. A rehearing was granted, however, and the court, observing that the answer and testimony showed that the land was low and marshy, had not been benefited or drained and could not be drained under the present system, held that the case was governed by Myles Salt Co. v. Iberia & St. M. Drainage Dist. 239 U. S. 478, 60 L. ed. 392, L.R.A. ——, ——, 36 Sup. Ct. Rep. 204, decided after the first decision in the present case; reversed the judgment and granted an injunction against the assessment upon this land. The intervening defendant thereupon applied for a rehearing, but the court declined to consider the application under its rule that only one rehearing should be granted. He now brings this writ of error and says that he has been deprived of due process of law, contrary to the 14th Amendment, because the case has been decided against him without his ever having had the proper opportunity to present his evidence. Technically this is true, for when the trial court ruled that it was not open to the plaintiff to show that his land was not benefited, the defendant was not bound to go on and offer evidence that he contended was inadmissible, in order to rebut the testimony already ruled to be inadmissible in accordance with his view. The chief justice and Mr. Justice O'Niell were of opinion that the case should be remanded to the trial court, we presume upon the ground just stated. Probably the majority of the supreme court thought that it was so plain on the uncontroverted facts that the case was within the principle of the Myles Salt Co. Case that to remand it would be an empty form,—a mere concession to technicality. It may turn out so, but we do not see in the record an absolute warrant for the assumption, and therefore cannot be sure that the defendant's rights are protected without giving him a chance to put his evidence in. The question remains whether the writ of error can be maintained. The record discloses the facts but does not disclose the claim of right under the 14th Amendment until the assignment of errors filed the day before the chief justice of the state granted this writ. Of course ordinarily that would not be enough. But when the act complained of is the act of the supreme court, done unexpectedly at the end of the proceeding, when the plaintiff in error no longer had any right to add to the record, it would leave a serious gap in the remedy for infraction of constitutional rights if the party aggrieved in such a way could not come here. The defendant was not bound to contemplate a decision of the case before his evidence was heard, and therefore was not bound to ask a ruling or to take other precautions in advance. The denial of rights given by the 14th Amendment need not be by legislation. Home Teleph. & Teleg. Co. v. Los Angeles, 227 U. S. 278, 57 L. ed. 510, 33 Sup. Ct. Rep. 312. It appears that shortly after the supreme court had declined to entertain the petition for rehearing the plaintiff in error brought the claim of constitutional right to the attention of the chief justice of the state by his assignment of errors. We do not see what more he could have done. Judgment reversed.

242.US.311

The West Virginia prohibition law of February,. 1913, Code 1913, c. 32A, as amended by Acts of 1915, p. 33, id. p. 660, includes in its prohibitions the bringing into the State by carriers of intoxicating liquors intended for personal use and the receipt and possession of such liquors, when so introduced, for personal use. Since the right asserted by the plaintiff is a permanent right to ship such liquors into the State, the decision concerns the state law as now amended, though the amendment occurred after the decision of the court below and after the first argument in this court. Without considering whether governmental power respecting intoxicating liquors extends to the prohibition of personal use, the right to restrict the means of procuring them for that purpose exists as an incident to the indubitable power to forbid manufacture and sale. Therefore these prohibitions of the West Virginia law are not offensive to the due process clause of the Fourteenth Amendment. The prohibitions, however, unless sanctioned by a valid law of Congress, would be repugnant to the Constitution as a direct burden on interstate commerce and an interference with the power of Congress to regulate it. Leisy v. Hardin, 135 U. S. 100. The Act of Congress of March 1, 1913, 37 Stat. 699, known as the Webb-Kenyon Act, operated, if constitutional, to give effect to the above stated prohibitions of the West Virginia law in respect of liquors shipped into the State for personal use, by withdrawing from such shipments the immunity of interstate commerce, and, to forbid the shipment or transportation into the State of liquors intended to be received or possessed there for personal use contrary to such state prohibitions. Adams Express Co. v. Kentucky, 238 U. S. 190, distinguished. The Webb-Kenyon Act is a legitimate exertion of the power to regulate commerce. That power, in the case of intoxicants, because of their character extends to the total prohibition of their transport in interstate commerce, and necessarily includes the lesser power, exercised in the Webb-Kenyon Act, of adapting the regulation to the various local requirements and conditions that may be expressed in the laws of the States. Such a mode of exercise involves no delegation of the power to the States. Neither is the act objectionable as productive of a lack of uniformity. This results: (1) Because it applies uniformly to the conditions which call it into play; its provisions apply to all the States, and (2) Because the power of Congress to regulate interstate commerce is not subject to the restriction that regulations shall be uniform throughout the United States. The right of Congress to regulate a subject of interstate commerce, its scope and the mode in which it may be exerted, depend upon the degree of the power of Congress over the subject regulated, viz., in this case, intoxicating liquor, and not upon those considerations which cause some subjects of interstate commerce to be under state control in the absence of congressional regulation and others to be free from state control until Congress has acted. Leisy v. Hardin, supra, explained and applied. The Webb-Kenyon Act is not repugnant to the due process clause of the Fifth Amendment. 219 Fed. Rep. 333; id. 339, affirmed.

To refer to the principal state law relating to these suits, to the pleadings and the decision of the court below, will make the issues in these cases clear and point directly to the elements required to be considered in deciding them. West Virginia in February, 1913, enacted a prohibition law to go into effect on July 1st of the following year. Code 1913, chap. 32A. Putting out of view the right of druggists, under stringent regulations provided by the statute, to sell for medicinal purposes, and the right otherwise to sell wine for sacramental and alcohol for scientific and manufacturing purposes, the law forbade 'the manufacture, sale, keeping or storing for sale in this state, or offering or exposing for sale,' intoxicating liquors, and the intoxicants embraced were comprehensively defined. The statute contained many restrictions concerning hotels, restaurants, clubs, and so-called associations where liquor was kept and served either as a result of membership or by gift or otherwise, which were evidently intended to prevent the frustration of the prohibitions against the keeping of intoxicants for sale and purchase by subterfuge in the guise of the exercise of an individual right. There was no express prohibition against the individual right to use intoxicants and none implied unless that result arose (a) from the prohibition in universal terms of all sales and purchases of liquor within the state, (b) from the clause providing that every delivery made in the state by a common or other carrier of the prohibited intoxicants should be considered as a consummation of a sale made in the state at the point of delivery, and (c) from the prohibitions which the statute contained against solicitations made to induce purchases of liquor, and against the publication in the state of all circulars, advertisements, price lists, etc., which might tend to stimulate purchases of liquor. Under this statute, and in reliance upon the provisions of the act of Congress known as the Webb-Kenyon Law (Act of Congress of March 1, 1913, 37 Stat. at L. 699, chap. 90, Comp. Stat. 1913, § 8739), the state of West Virginia in one of its courts sued the Western Maryland Railroad Company and the Adams Express Company to enjoin them from carrying from Maryland into West Virginia liquor in violation of law. In substance it was charged that very many shipments had been taken by the carriers contrary to the law, both as to solicitations and as to the use for which the liquor was intended. Preliminary injunctions were issued restraining the carrying of liquor into the state, subject to many conditions as to investigation, etc., etc. With these injunctions in force, these suits were commenced by the Clark Distilling Company to compel the carriers to take a shipment of liquor which it was asserted was ordered for personal use, and deliver it in West Virginia, on the ground that the Act of Congress to Regulate Commerce imposed the duty to receive and carry, and that, besides, the West Virginia prohibition law, when rightly construed, did not forbid it. The carriers, not challenging the asserted meaning of the West Virginia law, set up the injunctions and averred that to receive and carry the liquor would violate their provisions, and therefore there was no duty under the United States law to do so. West Virginia intervened in the suits, relying upon the state law and the injunctions which had been issued. At the trial it was shown that the plaintiff Distilling Company had systematically solicited purchases and constantly shipped liquor from Maryland into West Virginia in violation of the prohibition law. The court held that the West Virginia law did not prohibit personal use, and did not forbid shipments for such use, and that, as there was no state prohibition, the Webb-Kenyon Law had no application, and that, as the solicitations forbidden by the state statute were solicitations to do that which was forbidden, that consideration was irrelevant. The construction of the statute made by the state court was held not authoritatively binding, as that court was not one of last resort, and the right to practically modify the injunctions was declared to exist because West Virginia, by making herself a party to the suits, had submitted herself to the jurisdiction of the court. All questions concerning the power of the state of West Virginia to pass the prohibition law if it meant otherwise, and of the right of Congress to adopt the Webb-Kenyon Act under a like hypothesis, were reserved. 219 Fed. 333. Before the decrees entered became final, the circuit court of appeals for the fourth circuit, in a case pending before it (West Virginia v. Adams exp. Co. L.R.A.1916C, 291, 135 C. C. A. 464, 219 Fed. 794), decided directly to the contrary. It held that the law of West Virginia did prohibit shipments for personal use; that it did forbid solicitations therefore for such purchases; that, by operation of the Webb-Kenyon Act, there was no longer a right to ship liquor into the state in violation of its laws; and that both the state law and the Webb-Kenyon Act were constitutional. Controlled by such decision, the trial court recalled its opinion, heard a reargument, and, although not changing its view, accepted and gave effect to the conclusions reached by the circuit court of appeals because they were deemed to be authoritative, and the cases were brought directly here, because of the constitutional questions, to review such action. The issues to be decided may by embraced in four propositions which we proceed separately to consider. 1. The correct meaning of the West Virginia law as to the subjects in dispute. The difference as to the meaning of the statute in the court below was whether or not the West Virginia law prohibited the receipt of liquor for personal use; and, if it did, whether or not the prohibitions of the law equally applied to shipments from outside and to those originating in the state. But the possibility of dispute over these subjects no longer exists because, after the decision below, and since the cases were first argued (for they have been here argued twice), the state of West Virginia amended the statute so as to leave no room for doubt that it does forbid all shipments, whether for personal use or otherwise, and whether from within or without the state. The pertinent provisions of the amendments are placed in the margin.1 As the relief sought is the permanent right to ship in the future, the meaning of the statute now, that is, as amended, is the test by which we must consider the questions requiring solution. Indeed, this is frankly admitted by the parties, since it is unequivocally declared that the question is the operation and effect of the statute as amended and its constitutionality. We therefore come to the second question, which is: 2. The power of the state to enact the prohibition law consistently with the due process clause of the 14th Amendment and the exclusive power of Congress to regulate commerce among the several states. That government can, consistently with the due process clause, forbid the manufacture and sale of liquor and regulate its traffic, is not open to controversy; and that there goes along with this power full police authority to make it effective, is also not open. Whether the general authority includes the right to forbid individual use, we need not consider, since clearly there would be power, as an incident to the right to forbid manufacture and sale, to restrict the means by which intoxicants for personal use could be obtained, even if such use was permitted. This being true, there can be no doubt that the West Virginia prohibition law did not offend against the due process clause of the 14th Amendment. But that it was a direct burden upon interstate commerce and conflicted with the power of Congress to regulate commerce among the several states, and therefore could not be used to prevent interstate shipments from Maryland into West Virginia, has been not open to question since the decision in Leisy v. Hardin, 135 U. S. 100, 34 L. ed. 128, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681. And this brings us to consider whether the Webb-Kenyon Law has so regulated interstate commerce as to give the state the power to do what it did in enacting the prohibition law, and cause its provisions to be applicable to shipments of intoxicants in interstate commerce, thus saving that law from repugnancy to the Constitution of the United States, which is the third proposition for consideration. 3. Assuming the constitutionality of the Webb-Kenyon Act, what is its true meaning and its operation upon the prohibitions contained in the West Virginia law? Omitting words irrelevant to the subject now under consideration, the title and text of the Webb-Kenyon Act are as follows: 'An Act Divesting Intoxicating Liquors of Their Interstate Character in Certain Cases. '. . . That the shipment or transportation, in any manner or by any means whatsoever, of any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one state, territory, or district of the United States, . . . into any other state, territory, or district of the United States, . . . which said spirituous, vinous, malted, fermented, or other intoxicating liquor is intended, by any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such state, territory, or district of the United States . . . is hereby prohibited.' As the state law forbade the shipment into or transportation of liquor in the state, whether from inside or out, and all receipt and possession of liquor so transported, without regard to the use to which the liquor was to be put, and as the Webb-Kenyon Act prohibited the transportation in interstate commerce of all liquor 'intended to be received, possessed, sold or in any manner used, either in the original package or otherwise, in violation of any law of such state,' there would seem to be no room for doubt that the prohibitions of the state law were made applicable by the Webb-Kenyon Law. If that law was valid, therefore, the state law was not repugnant to the commerce clause. It is insisted that this view gives too wide an effect to the Webb-Kenyon Law, since that act was only intended to include state prohibitions in so far as they forbade the shipment, receipt, and possession of liquor for a forbidden use, and hence, as individual use was not forbidden by the state law, the shipment, receipt, and possession for such use was not embraced by the Webb-Kenyon Act, and the state law, so far as it was outside of that Act, was repugnant to the commerce clause. This is sought to be supported by the historical environment of the Webb-Kenyon Act as evidenced by the debates on its passage and by a decision of the court, as well as decisions of state courts (which are in the margin2), which, it is insisted, have so construed that act. Assuming, for the sake of argument only, that the debates may be resorted to for the purpose of showing environment, we are of opinion they clearly establish a result directly contrary to that which they are cited to maintain. Undoubtedly they show that it was insisted the act was not intended to interfere with personal use, as of course it was not, since its only purpose was to give effect to state prohibitions, not to compel the states to prohibit personal use. Indeed, the meaning which it is sought to affix to the Webb-Kenyon Act, if accepted, would cause that act to have the effect of compelling the states to prohibit personal use, since, if all the prohibitions of state laws against manufacture, sale, receipt, and possession of intoxicants remained subject to the danger of indirect violation by permitting shipment, receipt, and possession for personal use, it would follow that a necessary and immediate incentive was imposed upon the states by the Webb-Kenyon Act to enact a provision against personal use. The antecedents of the Webb-Kenyon Act, that is, its legislative and judicial progenitors, leave no room for the contention made. To correct the great evil which was asserted to arise from the right to ship liquor into a state through the channels of interstate commerce, and there receive and sell the same in the original package, in violation of state prohibitions, was indisputably the purpose which led to the enactment of the Wilson Law (Act of Congress of August 8, 1890, 26 Stat. at L. 313, chap. 728, Comp. Stat. 1913, § 8738), forbidding the sale of liquor in a state in the original package even although brought in through interstate commerce, when the existing or future state laws forbade sales of intoxicants. And this was recognized by the long line of decisions (a few of the leading cases are in the margin3) which upheld that law, and pointed out that it permitted the state prohibitions to take away from interstate commerce shipments a right which they otherwise would have embraced; that is, the right to sell after receipt in the original package, any state law to the contrary notwithstanding. At the same time it was recognized, however, that as the right to receive liquor was not affected by the Wilson Act, such receipt and the possession following from it and the resulting right to use remained protected by the commerce clause even in a state where what is known as the dispensary system prevailed. Vance v. W. A. Vandercook Co. 170 U. S. 438, 42 L. ed. 1100, 18 Sup. Ct. Rep. 674. Reading the Webb-Kenyon Law in the light thus thrown upon it by the Wilson Act and the decisions of this court which sustained and applied it, there is no room for doubt that it was enacted simply to extend that which was done by the Wilson Act; that is to say, its purpose was to prevent the immunity characteristic of interstate commerce from being used to permit the receipt of liquor through such commerce in states contrary to their laws, and thus in effect afford a means by subterfuge and indirection to set such laws at naught. In this light it is clear that the Webb-Kenyon Act, if effect is to be given to its text, but operated so as to cause the prohibitions of the West Virginia law against shipment, receipt, and possession to be applicable and controlling irrespective of whether the state law did or did not prohibit the individual use of liquor. That such also was the embodied spirit of the Webb-Kenyon Act plainly appears, since, if that be not true, the coming into being of the act is wholly inexplicable. The case in this court relied upon to establish the contrary (Adams Exp. Co. v. Kentucky, 238 U. S. 190, 59 L. ed. 1267, L.R.A.1916C, 273, 35 Sup. Ct. Rep. 824, Ann. Cas. 1915D, 1167) clearly does not do so. All that was decided in that case was that, as the court of last resort of Kentucky, into which liquor had been shipped, had held that the state statute did not forbid shipment and receipt of liquor for personal use, therefore the Webb-Kenyon Act did not apply, since it only applied to things which the state law prohibited. The leading state case cited is Van Winkle v. State, 4 Boyce (Del.) 578, 91 Atl. 385, Ann. Cas. 1916D, 104. It is true in that case the state law prohibited shipment to and receipt of intoxicants in local-option territory, and if the Webb-Kenyon Law had been applied, there would have been no possible ground for claiming that the state prohibitions could be escaped because the liquor was shipped in interstate commerce. But the shipment was held to be protected as interstate commerce despite the state prohibition because the Webb-Kenyon Law was not correctly applied, for the following reason: Coming to consider the consider the text of that law, the court said that as the Webb-Kenyon Act prohibited the shipment of intoxicants 'only when liquor is intended to be used in violation of the law of the state,' and as the liquor shipped was intended for personal use, which was not forbidden, therefore the shipment, although prohibited by the state law, was beyond the reach of the Webb-Kenyon Act. But we see no ground for following the ruling thus made, since, as we have already pointed out, it necessarily rested upon an entire misconception of the text of the Webb-Kenyon Act, because that act did not simply forbid the introduction of liquor into a state for a prohibited use, but took the protection of interstate commerce away from all receipt and possession of liquor prohibited by state law. The movement of liquor in interstate commerce and the receipt and possession and right to sell prohibited by the state law having been in express terms divested by the Webb-Kenyon Act of their interstate commerce character, it follows that if that act was within the power of Congress to adopt, there is no possible reason for holding that to enforce the prohibitions of the state law would conflict with the commerce clause of the Constitution; and this brings us to the last question, which is: 4. Did Congress have power to enact the Webb-Kenyon Law? We are not unmindful that opinions adverse to the power of Congress to enact the law were formed and expressed in other departments of the government. Opinion of the Attorney General, 30 Ops. Atty. Gen. 88; Veto Message of the President, 49 Cong. Rec. 4291. We are additionally conscious, therefore, of the responsibility of determining these issues and of their serious character. It is not in the slightest degree disputed that if Congress had prohibited the shipment of all intoxicants in the channels of interstate commerce, and therefore had prevented all movement between the several states, such action would have been lawful, because within the power to regulate which the Constitution conferred. Lottery Case (Champion v. Ames) 188 U. S. 321, 47 L. ed. 492, 23 Sup. Ct. Rep. 321, 13 Am. Crim. Rep. 561; 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. The issue, therefore, is not one of an absence of authority to accomplish in substance a more extended result than that brought about by the Webb-Kenyon Law, but of a want of power to reach the result accomplished because of the method resorted to for that purpose. This is certain since the sole claim is that the act was not within the power given to Congress to regulate because it submitted liquors to the control of the states by subjecting interstate commerce in such liquors to present and future state prohibitions, and hence, in the nature of things, was wanting in uniformity. Let us test the contentions by reason and authority. The power conferred is to regulate, and the very terms of the grant would seem to repel the contention that only prohibition of movement in interstate commerce was embraced. And the cogency of this is manifest since, if the doctrine were applied to those manifold and important subjects of interstate commerce as to which Congress from the beginning has regulated, not prohibited, the existence of government under the Constitution would be no longer possible. The argument as to delegation to the states rests upon a mere misconception. It is true the regulation which the Webb-Kenyon Act contains permits state prohibitions to apply to movements of liquor from one state into another, but the will which causes the prohibitions to be applicable is that of Congress, since the application of state prohibitions would cease the instant the act of Congress ceased to apply. In fact, the contention previously made, that the prohibitions of the state law were not applicable to the extent that they were broader than the Webb-Kenyon Act, is in direct conflict with the proposition as to delegation now made. So far as uniformity is concerned, there is no question that the act uniformly applies to the conditions which call its provisions into play,—that its provisions apply to all the states, so that the question really is a complaint as to the want of uniform existence of things to which the act applies, and not to an absence of uniformity in the act itself. But, aside from this, it is obvious that the argument seeks to engraft upon the Constitution a restriction not found in it; that is, that the power to regulate conferred upon Congress obtains subject to the requirement that regulations enacted shall be uniform throughout the United States. In view of the conceded power on the part of Congress to prohibit the movement of intoxicants in interstate commerce, we cannot admit that because it did not exert its authority to the full limit, but simply regulated to the extent of permitting the prohibitions in one state to prevent the use of interstate commerce to ship liquor from another state, Congress exceeded its authority to regulate. We can see, therefore, no force in the argument relied upon tested from the point of view of reason, and we come to the question of authority. It is settled, says the argument, that interstate commerce is divided into two great classes, one embracing subjects which do not exact uniformity, and which, although subject to the regulation of Congress, are, in the absence of such regulation, subject to the control of the several states (Cooley v. Port Wardens, 12 How. 299, 13 L. ed. 996), and the other embracing subjects which do require uniformity, and which, in the absence of regulation by Congress, remain free from all state control (Leisy v. Hardin, 135 U. S. 100, 34 L. ed. 128, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681). As to the first, it is said, Congress may, when regulating, to the extent it deems wise to do so, permit state legislation enacted or to be enacted to govern, because to do so would only be to do that which would exist if nothing had been done by Congress. As to the second class, the argument is, that in adopting regulations Congress is wholly without power to provide for the application of state power to any degree whatever, because, in the absence of the exertion by Congress of power to regulate, the subject matter would have been free from state control; and because, besides, the recognition of state power under such circumstances would be to bring about a want of uniformity. But granting the accuracy of the two classifications which the proposition states, the limitation upon the power of Congress to regulate which is deduced from the classifications finds no support in the authority relied upon to sustain it. Let us see if this is not the case by examining the authority relied upon. What is that authority? The ruling in Leisy v. Hardin, supra. But that case, instead of supporting the contention, plainly refutes it for the following reason: Although Leisy v. Hardin declared in express terms that the movement of intoxicants in interstate commerce belonged to that class which was free from all interference by state control in the absence of regulation by Congress, it was at the same time in the most explicit terms declared that the power of Congress to regulate interstate commerce in intoxicants embraced the right to subject such movement to state prohibitions, and that the freedom of intoxicants to move in interstate commerce and the protection over it from state control arose only from the absence of congressional regulation, and would endure only until Congress had otherwise provided. Thus in that case, in pointing out that the movement of intoxicants in interstate commerce was under the control of Congress despite the wide scope of the police authority of the state over the subject, it was said (p. 108): 'Yet a subject matter which has been confided exclusively to Congress by the Constitution is not within the jurisdiction of the police power of the state, unless placed there by congressional action.' Again, referring to the uniform operation of interstate commerce regulations, it was said (p. 109): 'Hence, inasmuch as interstate commerce, consisting in the transportation, purchase, sale, and exchange of commoditied, is national in its character, and must be governed by a uniform system, so long as Congress does not pass any law to regulate it, or allowing the states so to do, it thereby indicates its will that such commerce shall be free and untrammeled.' Further the court said (p. 119): 'The conclusion follows that, as the grant of the power to regulate commerce among the states, so far as one system is required, is exclusive, the states cannot exercise that power without the assent of Congress.' Again, after pointing out that the question of the prohibition of manufacture and sale of particular articles was a matter of state concern, it was said (p. 123): 'But, notwithstanding it is not vested with supervisory power over matters of local administration, the responsibility is upon Congress, so far as the regulation of interstate commerce is concerned, to remove the restriction upon the state in dealing with imported articles of trade within its limits, which have not been mingled with the common mass of property therein, if, in its judgment, the end to be secured justifies and requires such action.' And finally, after pointing out that the states had no power to interfere with the movement of goods in interstate commerce before they had been commingled with the property of the state, it was said that this limitation obtained 'in the absence of congressional permission' to the state (p 124). Thus it follows that although we accept the classification of interstate commerce in intoxicants made in Leisy v. Hardin, we could not accept the contention which is now based upon that classification without in effect overruling that case, or, what is equivalent thereto, refusing to give effect to the doctrine of that case announced in terms so certain that there is no room for controversy or contention concerning them. But we would be required to go further than this, since it would result that we would have to shut our eyes to the construction put upon the ruling in Leisy v. Hardin by Congress in legislating when it adopted the Wilson Act, and also to practically overrule the line of decisions which we have already referred to sustaining and enforcing that act. Let us see if this is not certain. As we have already pointed out, the very regulation made by Congress in enacting the Wilson Law to minimize the evil resulting from violating prohibitions of state law by sending liquor through interstate commerce into a state, and selling it in violation of such law, was to divest such shipments of their interstate commerce character and to strip them of the right to be sold in the original package free from state authority which otherwise would have obtained. And that Congress had the right to enact this legislation making existing and future state prohibitions applicable was the express result of the decided cases to which we have referred, beginning with Re Rahrer, 140 U. S. 545, 35 L. ed. 572, 11 Sup. Ct. Rep. 865. As the power to regulate which was manifested in the Wilson Act, and that which was exerted in enacting the Webb-Kenyon Law, are essentially identical, the one being but a larger degree of exertion of the identical power which was brought into play in the other, we are unable to understand upon what principle we could hold that the one was not a regulation without holding that the other had the same infirmity, a result which, as we have previously said, would reverse Leisy v. Hardin and overthrow the many adjudications of this court sustaining the Wilson Act. These considerations dispose of the contention, but we do not stop with stating them, but recur again to the reason of things for the purpose of pointing out the fundamental error upon which the contention rests. It is this: the mistaken assumption that the accidental considerations which cause a subject, on the one hand, to come under state control in the absence of congressional regulation, and other subjects, on the contrary, to be free from state control until Congress has acted, are the essential criteria by which to test the question of the power of Congress to regulate and the mode in which the exertion of that power may be manifested. The two things are widely different, since the right to regulate and its scope and the mode of exertion must depend upon the power possessed by Congress over the subject regulated. Following the unerring path pointed out by that great principle we can see no reason for saying that although Congress, in view of the nature and character of intoxicants, had a power to forbid their movement in interstate commerce, it had not the authority to so deal with the subject as to establish a regulation (which is what was done by the Webb-Kenyon Law) making it impossible for one state to violate the prohibitions of the laws of another through the channels of interstate commerce. Indeed, we can see no escape from the conclusion that if we accepted the proposition urged, we would be obliged to announce the contradiction in terms that because Congress had exerted a regulation lesser in power than it was authorized to exert, therefore its action was void for excess of power. Or, in other words, stating the necessary result of the argument from a concrete consideration of the particular subject here involved, that because Congress, in adopting a regulation, had considered the nature and character of our dual system of government, state and nation, and instead of absolutely prohibiting, had so conformed its regulation as to produce co-operation between the local and national forces of government to the end of preserving the rights of all, it had thereby transcended the complete and perfect power of regulation conferred by the Constitution. And it is well again to point out that this abnormal result to which the argument leads concerns a subject as to which both state and nation, in their respective spective spheres of authority, possessed the supremest authority before the action of Congress which is complained of; and hence the argument virtually comes to the assertion that, in some undisclosed way, by the exertion of congressional authority, power possessed has evaporated. It is only necessary to point out that the considerations which we have stated dispose of all contentions that the Webb-Kenyon Act is repugnant to the due process clause of the 5th Amendment, since what we have said concerning that clause in the 14th Amendment as applied to state power is decisive. Before concluding, we come to consider what we deem to be arguments of inconvenience which are relied upon; that is, the dread expressed that the power by regulation to allow state prohibitions to attach to the movement of intoxicants lays the basis for subjecting interstate commerce in all articales to state control, and therefore destroys the Constitution. The want of force in the suggested inconvenience becomes patent by considering the principle which, after all, dominates and controls the question here presented; that is, the subject regulated and the extreme power to which that subject may be subjected. The fact that regulations of liquor have been upheld in numberless instances which would have been repugnant to the great guaranties of the Constitution but for the enlarged right possessed by government to regulate liquor has never, that we are aware of, been taken as affording the basis for the thought that government might exert an enlarged power as to subjects to which, under the constitutional guaranties, such enlarged power could not be applied. In other words, the exceptional nature of the subject here regulated is the basis upon which the exceptional power exerted must rest, and affords no ground for any fear that such power may be constitutionally extended to things which it may not, consistently with the guaranties of the Constitution, embrace. Affirmed. Mr. Justice McReynolds concurs in the result. Mr. Justice Holmes and Mr. Justice Van Devanter dissent.

243.US.502

Under the patent law the grant by patent of the exclusive right to use, like the grant of the exclusive right to vend, is limited to the invention described in the claims of the patent, and that law does not empower the patent owner by notices attached to the things patented to extend the scope of the patent monopoly by restricting their use to materials necessary for their operation but foiming no part of the patented invention, or to send such articles forth into the channels of trade subject to conditions as to use or royalty, to be imposed thereafter in the vendor's discretion. The Button-Fastener Case, 77 Fed. Rep. 288, and Henry v. Dick Company, 224 U. S. 1, overruled. In determining how far the owner of a patent may restrict the use after sale of machines embodying the invention, weight must be given to the rules long established that the scope of every patent is limited to the invention as described in the claims, read in the light of the specification, that the patentee receives nothing from the patent law beyond the right to restrain others from manufacturing, using or selling his invention, and that the primary purpose of that law is not to create private fortunes but is to promote the progress of science and the useful arts. The extent to which the use of a patented machine may validly be restricted to specific supplies or otherwise by special contract between the owner of the patent and a purchaser or licensee, is a question outside of the patent law and not involved in this case. 235 Fed. Rep. 398, affirmed.

In this suit relief is sought against three defendant corporations as joint infringers of claim number 7 of United States letters patent No. 707,934, granted to Woodville Latham, assignor, on August 26, 1902, for improvements in projecting-kinetoscopes. It is sufficient description of the patent to say that it covers a part of the mechanism used in motion picture exhibiting machines for feeding a film through the machine with a regular, uniform, and accurate movement, and so as not to expose the film to excessive strain or wear. The defendants, in a joint answer, do not dispute the title of the plaintiff to the patent, but they deny the validity of it, deny infringement, and claim an implied license to use the patented machine. Evidence which is undisputed shows that the plaintiff, on June 20, 1912, in a paper styled 'License Agreement,' granted to the Precision Machine Company a right and license to manufacture and sell machines embodying the inventions described and claimed in the patent in suit, and in other patents, throughout the United States, its territories and possessions. This agreement contains a covenant on the part of the grantee that every machine sold by it, except those for export, shall be sold 'under the restriction and condition that such exhibiting or projecting machine shall be used solely for exhibiting or projecting motion pictures containing the inventions of reissued letters patent No. 12,192, leased by a licensee of the licensor while it owns said patents and upon other terms to be fixed by the licensor and complied with by the user while the said machine is in use and while the licensor owns said patents (which other terms shall only be the payment of a royalty or rental to the licensor while in use).' The grantee further covenants and agrees that to each machine sold by it, except for export, it will attach a plate showing plainly not only the dates of the letters patent under which the machine is 'licensed,' but also the following words and figures: Serial No. ___. The sale and purchase of this machine gives only the right to use it solely with moving pictures containing the invention of reissued patent No. 12,192, leased by a licensee of the Motion Picture Patents Company, the owner of the above patents and reissued patent, while it owns said patents, and upon other terms to be fixed by the Motion Picture Patents Company and complied with by the user while it is in use and while the Motion Picture Patents Company owns said patents. The removal or defacement of this plate terminates the right to use this machine. The agreement further provides that the grantee shall not sell any machine at less than the plaintiff's list price, except to jobbers and others for purposes of resale, and that it will require such jobbers and others to sell at not less than plaintiff's list price. The price fixed in the license contract for sale of machines after May 1st, 1909, is not less than $150 for each machine, and the licensee agrees to pay a royalty of $5 on some machines and a percentage of the selling price on others. It is admitted that the machine, the use of which is charged to be an infringement of the patent in suit, was manufactured by the Precision Machine Company, and was sold and delivered under its 'License Agreement' to the Seventy-second Street Amusement Company, then operating a playhouse on Seventy-second street, in New York, and that when sold it was fully paid for and had attached to it a plate with the inscription which we have quoted as required by the agreement. Reissued patent 12,192, referred to in the notice attached to the machine, expired on August 31, 1914. The defendant Prague Amusement Company, on November 2, 1914, leased the Seventy-second street playhouse from the Seventy-second Street Amusement Company, and acquired the alleged infringing machine as a part of the equipment of the leased playhouse. Subsequent to the expiration of reissued patent 12,192, the defendant Universal Film Manufacturing Company made two films or reels, which, between March 4th and 17th, 1915, were sold to the defendant the Universal Film Exchange, and on March 17, 1915, were supplied to the defendant Prague Amusement Company for use on the machine, acquired as we have stated, and were used upon it at the Seventy-second Street playhouse on March 18th, 1915. On January 18, 1915, the plaintiff sent a letter to the Seventy-second Street Amusement Company, notifying it in general terms that it was using without a license a machine embodying the invention of patent No. 707,934 and warning it that such use constituted an infringement of the patent, and on the same day the plaintiff addressed a letter to the defendant Universal Film Exchange, notifying it that it also was infringing the same patents by supplying films for use upon the machine of the Seventy-second street playhouse and elsewhere. The bill in this case was filed on March 18, 1915. The district court held that the limitation on the use of the machine attempted to be made by the notice attached to it after it had been sold and paid for, was invalid, and that the Seventy-second Street Amusement Company, the purchaser, and its lessee, the Prague Amusement Company, had an implied license to use the machine as it had been used, and it dismissed the bill without passing on the question raised in the pleadings as to the validity of the patent. The circuit court of appeals affirmed the district court (148 C. C. A. 660, 235 Fed. 398), and the case is here for review on certiorari. It was admitted at the bar that 40,000 of the plaintiff's machines are now in use in this country, and that the mechanism covered by the patent in suit is the only one with which motion picture films can be used successfully. This state of facts presents two questions for decision: First: May a patentee or his assignee license another to manufacture and sell a patented machine, and by a mere notice attached to it limit its use by the purchaser or by the purchaser's lessee, to films which are no part of the patented machine, and which are not patented? Second. May the assignee of a patent, which has licensed another to make and sell the machine covered by it, by a mere notice attached to such machine, limit the use of it by the purchaser or by the purchaser's lessee to terms not stated in the notice, but which are to be fixed, after sale, by such assignee, in its discretion? It is obvious that in this case we have presented anew the inquiry, which is arising with increasing frequency in recent years, as to the extent to which a patentee or his assignee is authorized by our patent laws to prescribe by notice attached to a patented machine the conditions of its use and the supplies which must be used in the operation of it, under pain of infringement of the patent. The statutes relating to patents do not provide for any such notice and it can derive no aid from them. Rev. Stat. § 4900, Comp. Stat. 1913, § 9446, requiring that patented articles shall be marked with the word 'Patented,' affects only the damages recoverable for infringement (Dunlap v. Schofield, 152 U. S. 244, 38 L. ed. 426, 14 Sup. Ct. Rep. 576); and Rev. Stat. § 4901, Comp. Stat. 1913, § 9447, protects by its penalties the inventor, but neither one contemplates the use of such a 'License Notice' as we have here, and whatever validity it has must be derived from the general, and not from the patent, law. The extent to which the use of the patented machine may validly be restricted to specific supplies or otherwise by special contract between the owner of a patent and the purchaser or licensee is a question outside the patent law, and with it we are not here concerned. Keeler v. Standard Folding Bed Co. 157 U. S. 659, 39 L. ed. 848, 15 Sup. Ct. Rep. 738. The inquiry presented by this record, as we have stated it, is important and fundamental, and it requires that we shall determine the meaning of Congress when, in Rev. Stat. § 4884, Comp. Stat. 1913, § 9428, it provided that 'every patent shall contain . . . a grant to the patentee, his heirs or assigns, for the term of seventeen years, of the exclusive right to make, use, and vend the invention or discovery throughout the United States, and the territories thereof.' We are concerned only with the right to 'use,' authorized to be granted by this statute, for it is under warrant of this right only that the plaintiff can and does claim validity for its warning notice. The words used in the statute are few, simple, and familiar, they have not been changed substantially since they were first used in the act of 1790 (1 Stat. at L. chap. 7, p. 109), Bauer v. O'Donnell, 229 U. S. 1, 9, 57 L. ed. 1041, 1043, 50 L.R.A.(N.S.) 1185, 33 Sup. Ct. Rep. 616, Ann. Cas. 1915A, 150, and their meaning would seem not to be doubtful if we can avoid reading into them that which they really do not contain. In interpreting this language of the statute it will be of service to keep in mind three rules long established by this court, applicable to the patent law and to the construction of patents, viz.: 1st. The scope of every patent is limited to the invention described in the claims contained in it, read in the light of the specification. These so mark where the progress claimed by the patent begins and where it ends that they have been aptly likened to the description in a deed, which sets the bounds to the grant which it contains. It is to the claims of every patent, therefore, that we must turn when we are seeking to determine what the invention is, the exclusive use of which is given to the inventor by the grant provided for by the statute,—'He can claim nothing beyond them.' Keystone Bridge Co. v. Phoenix Iron Co. 95 U. S. 274, 24 L. ed. 344; Lehigh Valley R. Co. v. Mellon, 104 U. S. 112, 118, 26 L. ed. 639, 641; Yale Lock Mfg. Co. v. Greenleaf, 117 U. S. 554, 559, 29 L. ed. 952, 953, 6 Sup. Ct. Rep. 846; McClain v. Ortmayer, 141 U. S. 419, 424, 35 L. ed. 800, 802, 12 Sup. Ct. Rep. 76. 2d. It has long been settled that the patentee receives nothing from the law which he did not have before, and that the only effect of his patent is to restrain others from manufacturing, using, or selling that which he has invented. The patent law simply protects him in the monopoly of that which he has invented and has described in the claims of his patent. United States v. American Bell Teleph. Co. 167 U. S. 224, 239, 42 L. ed. 144, 154, 17 Sup. Ct. Rep. 809; Continental Paper Bag Co. v. Eastern Paper Bag Co. 210 U. S. 405, 424, 52 L. ed. 1122, 1130, 28 Sup. Ct. Rep. 748; Bauer v. O'Donnell, 229 U. S. 1, 10, 57 L. ed. 1041, 1043, 50 L.R.A.(N.S.) 1185, 33 Sup. Ct. Rep. 616, Ann. Cas. 1915A, 150. 3d. Since Pennock v. Dialogue, 2 Pet. 1, 7 L. ed. 327, was decided in 1829, this court has consistently held that the primary purpose of our patent laws is not the creation of private fortunes for the owners of patents, but is 'to promote the progress of science and the useful arts' (Constitution, art. 1, § 8),—an object and purpose authoritatively expressed by Mr. Justice Story, in that decision, saying: 'While one great object [of our patent laws] was, by holding out a reasonable reward to inventors and giving them an exclusive right to their inventions for a limited period, to stimulate the efforts of genius, the main object was 'to promote the progress of science and useful arts." Thirty years later this court, returning to the subject, in Kendall v. Winsor, 21 How. 322, 16 L. ed. 165, again pointedly and significantly says: 'It is undeniably true, that the limited and temporary monopoly granted to inventors was never designed for their exclusive profit or advantage; the benefit to the public or community at large was another and doubtless the primary object in granting and securing that monopoly.' This court has never modified this statement of the relative importance of the public and private interests involved in every grant of a patent, even while declaring that, in the construction of patents and the patent laws, inventors shall be fairly, even liberally, treated. Grant v. Raymond, 6 Pet. 218, 241, 8 L. ed. 376, 384; Winans v. Denmead, 15 How. 330, 14 L. ed. 717; Walker, Patents, § 185. These rules of law make it very clear that the scope of the grant which may be made to an inventor in a patent, pursuant to the statute, must be limited to the invention described in the claims of his patent (104 U. S. 118, supra); and to determine what grant may lawfully be so made we must hold fast to the language of the act of Congress providing for it, which is found in two sections of the Revised Statutes. Section 4886 (Comp. Stat. 1913, § 9430) provides that 'any person who has invented or discovered any new and useful art, machine, manufacture or composition of matter, or any new and useful improvement thereof, . . . may . . . obtain a patent therefor;' and § 4884 (Comp. Stat. 1913, § 9428), provides that such patent when obtained 'shall contain . . . a grant to the patentee, his heirs or assigns . . . of the exclusive right to . . . use . . . the invention or discovery.' Thus, the inventor may apply for, and, if he meets the required conditions, may obtain, a patent for the new and useful invention which he has discovered, which patent shall contain a grant of the right to the exclusive use of his discovery. Plainly, this language of the statute and the established rules to which we have referred restrict the patent granted on a machine, such as we have in this case, to the mechanism described in the patent as necessary to produce the described results. It is not concerned with and has nothing to do with the materials with which or on which the machine operates. The grant is of the exclusive right to use the mechanism to produce the result with any appropriate material, and the materials with which the machine is operated are no part of the patented machine or of the combination which produces the patented result. The difference is clear and vital between the exclusive right to use the machine, which the law gives to the inventor, and the right to use it exclusively with prescribed materials to which such a license notice as we have here seeks to restrict it. The restrictions of the law relate to the useful and novel features of the machine which are described in the claims of the patent; they have nothing to do with the materials used in the operation of the machine; while the notice restrictions have nothing to do with the invention which is patented, but relate wholly to the materials to be used with it. Both in form and in substance the notice attempts a restriction upon the use of the supplies only, and it cannot, with any regard to propriety in the use of language, be termed a restriction upon the use of the machine itself. Whatever the right of the owner may be to control by restriction the materials to be used in operating the machine, it must be a right derived through the general law from the ownership of the property in the machine, and it cannot be derived from or protected by the patent law, which allows a grant only of the right to an exclusive use of the new and useful discovery which has been made,—this and nothing more. This construction gives to the inventor the exclusive use of just what his inventive genius has discovered. It is all that the statute provides shall be given to him and it is all that he should receive, for it is the fair as well as the statutory measure of his reward for his contribution to the public stock of knowledge. If his discovery is an important one, his reward under such a construction of the law will be large, as experience has abundantly proved; and if it be unimportant, he should not be permitted by legal devices to impose an unjust charge upon the public in return for the use of it. For more than a century this plain meaning of the statute was accepted as its technical meaning, and that it afforded ample incentive to exertion by inventive genius is proved by the fact that, under it, the greatest inventions of our time, teeming with inventions, were made. It would serve no good purpose to amplify by argument or illustration this plain meaning of the statute. It is so plain that to argue it would obscure it. It was not until the time came in which the full possibilities seem first to have been appreciated of uniting, in one, many branches of business through corporate organization, and of gathering great profits in small payments, which are not realized or resented, from many, rather than smaller or even equal profits in larger payments, which are felt and may be refused, from a few, that it came to be thought that the 'right to use . . . the invention' of a patent gave to the patentee or his assigns the right to restrict the use of it to materials or supplies not described in the patent, and not by its terms made a part of the thing patented. The construction of the patent law which justifies as valid the restriction of patented machines, by notice, to use with unpatented supplies necessary in the operation of them, but which are no part of them, is believed to have originated in Heaton-Peninsular Button-Fastener Co. v. Eureka Specialty Co. 35 L.R.A. 728, 25 C. C. A. 267, 47 U. S. App. 146, 77 Fed. 288 (which has come to be widely referred to as the Button-Fastener Case), decided by the circuit court of appeals of the sixth circuit in 1896. In this case the court, recognizing the pioneer character of the decision it was rendering speaks of the 'novel restrictions' which it is considering, and says that it is called upon 'to mark another boundary line around the patentee's monopoly which will debar him from engrossing the market for an article not the subject of a patent,' which it declined to do. This decision proceeds upon the argument that, since the patentee may withhold his patent altogether from public use, he must logically and necessarily be permitted to impose any conditions which he chooses upon any use which he may allow of it. The defect in this thinking springs from the substituting of inference and argument for the language of the statute, and from failure to distinguish between the rights which are given to the inventor by the patent law and which he may assert against all the world through an infringement proceeding, and rights which he may create for himself by private contract, which, however, are subject to the rules of general, as distinguished from those of the patent, law. While it is true that under the statutes as they were (and now are) a patentee might withhold his patented machine from public use, yet if he consented to use it himself or through others, such use immediately fell within the terms of the statute, and, as we have seen, he is thereby restricted to the use of the invention as it is described in the claims of his patent, and not as it may be expanded by limitations as to materials and supplies necessary to the operation of it, imposed by mere notice to the public. The high standing of the court rendering this decision and the obvious possibilities for gain in the method which it approved led to an immediate and widespread adoption of the system, in which these restrictions expanded into more and more comprehensive forms until at length the case at bar is reached, with a machine sold and paid for, yet claimed still to be subject not only to restriction as to supplies to be used, but also subject to any restrictions or conditions as to use or royalty which the company which authorized its sale may see fit, after the sale, from time to time to impose. The perfect instrument of favoritism and oppression which such a system of doing business, if valid, would put into the control of the owner of such a patent, should make courts astute, if need be, to defeat its operation. If these restrictions were sustained, plainly the plaintiff might, for its own profit or that of its favorites, by the obviously simple expedient of varying its royalty charge, ruin anyone unfortunate enough to be dependent upon its confessedly important improvements for the doing of business. Through the twenty years since the decision in the Button-Fastener Case was announced there have not been wanting courts and judges who have dissented from its conclusions, as is sufficiently shown in the division of this court when the question involved first came before it in Henry v. A. B. Dick Co. 224 U. S. 1, 56 L. ed. 645, 32 Sup. Ct. Rep. 364, and in the disposition shown not to extend the doctrine in Bauer v. O'Donnell, 229 U. S. 1, 57 L. ed. 1041, 50 L.R.A.(N.S.) 1185, 33 Sup. Ct. Rep. 616, Ann. Cas. 1915A, 150. The exclusive right to 'vend' a patented article is derived from the same clause of the section of the statute which gives the exclusive right to 'use' such an article, and following the decision of the Button-Fastener Case, it was widely contended as obviously sound, that the right existed in the owner of a patent to fix a price at which the patented article might be sold and resold under penalty of patent infringement. But this court, when the question came before it in Bauer v. O'Donnell, supra, rejecting plausible argument, and adhering to the language of the statute from which all patent right is derived, refused to give such a construction to the act of Congress, and decided that the owner of a patent is not authorized by either the letter or the purpose of the law to fix, by notice, the price at which a patented article must be sold after the first sale of it, declaring that the right to vend is exhausted by a single, unconditional sale, the article sold being thereby carried outside the monopoly of the patent law and rendered free of every restriction which the vendor may attempt to put upon it. The statutory authority to grant the exclusive right to 'use' a patented machine is not greater, indeed, it is precisely the same, as the authority to grant the exclusive right to 'vend,' and, looking to that authority, for the reasons stated in this opinion, we are convinced that the exclusive right granted in every patent must be limited to the invention described in the claims of the patent, and that it is not competent for the owner of a patent, by notice attached to its machine, to, in effect, extend the scope of its patent monopoly by restricting the use of it to materials necessary in its operation, but which are no part of the patented invention, or to send its machines forth into the channels of trade of the country subject to conditions as to use or royalty to be paid, to be imposed thereafter at the discretion of such patent owner. The patent law furnishes no warrant for such a practice, and the cost, inconvenience, and annoyance to the public which the opposite conclusion would occasion forbid it. It is argued as a merit of this system of sale under a license notice that the public is benefited by the sale of the machine at what is practically its cost, and by the fact that the owner of the patent makes its entire profit from the sale of the supplies with which it is operated. This fact, if it be a fact, instead of commending, is the clearest possible condemnation of, the practice adopted, for it proves that, under color of its patent, the owner intends to and does derive its profit, not from the invention on which the law gives it a monopoly, but from the unpatented supplies with which it is used, and which are wholly without the scope of the patent monopoly, thus in effect extending the power to the owner of the patent to fix the price to the public of the unpatented supplies as effectively as he may fix the price on the patented machine. We are confirmed in the conclusion which we are announcing by the fact that since the decision of Henry v. A. B. Dick Co. supra, the Congress of the United States, the source of all rights under patents, as if in response to this decision, has enacted a law making it unlawful for any person engaged in interstate commerce 'to lease or make a sale or contract for sale of goods, . . . machinery, supplies or other commodities, whether patented or unpatented, for use, consumption or resale . . . or fix a price charged therefor, . . . on the condition, agreement or understanding that the lessee or purchaser thereof shall not use . . . the goods . . . machinery, supplies or other commodities of a competitor or competitors of the lessor or seller, where the effect of such lease, sale, or contract for sale, or such condition, agreement or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce.' (38 Stat. at L. 730, chap. 323.) Our conclusion renders it unnecessary to make the application of this statute to the case at bar which the circuit court of appeals made of it, but it must be accepted by us as a most persuasive expression of the public policy of our country with respect to the question before us. It is obvious that the conclusions arrived at in this opinion are such that the decision in Henry v. A. B. Dick Co. supra, must be regarded as overruled. Coming now to the terms of the notice attached to the machine sold to the Seventy-second Street Amusement Company under the license of the plaintiff, and to the first question as we have stated it. This notice first provides that the machine, which was sold to and paid for by the Amusement Company, may be used only with moving picture films containing the invention of reissued patent No. 12,192, so long as the plaintiff continues to own this reissued patent. Such a restriction is invalid because such a film is obviously not any part of the invention of the patent in suit; because it is an attempt, without statutory warrant, to continue the patent monopoly in this particular character of film after it has expired, and because to enforce it would be to create a monopoly in the manufacture and use of moving picture films, wholly outside of the patent in suit and of the patent law as we have interpreted it. The notice further provides that the machine shall be used only upon other terms (than those stated in the notice), to be fixed by the plaintiff, while it is in use and while the plaintiff 'owns said patents.' And it is stated at the bar that, under this warrant, a charge was imposed upon the purchaser, graduated by the size of the theater in which the machine was to be used. Assuming that the plaintiff has been paid an average royalty of $5 on each machine sold, prescribed in the license agreement, it has already received over $200,000 for the use of its patented improvement, which relates only to the method of using the films which another had invented, and yet it seeks by this device to collect during the life of the patent in suit what would doubtless aggregate many times this amount for the use of this same invention, after its machines have been sold and paid for. A restriction which would give to the plaintiff such a potential power for evil over an industry which must be recognized as an important element in the amusement life of the nation, under the conclusions we have stated in this opinion, is plainly void, because wholly without the scope and purpose of our patent laws, and because, if sustained, it would be gravely injurious to that public interest, which we have seen is more a favorite of the law than is the promotion of private fortunes. Both questions as stated must be answered in the negative, and the decree of the Circuit Court of Appeals is affirmed. Mr. Justice McReynolds concurs in the result. I suppose that a patentee has no less property in his patented machine than any other owner, and that, in addition to keeping the machine to himself, the patent gives him the further right to forbid the rest of the world from making others like it. In short, for whatever motive, he may keep his device wholly out of use. Continental Paper Bag Co. v. Eastern Paper Bag Co. 210 U. S. 405, 422, 52 L. ed. 1122, 1129, 28 Sup. Ct. Rep. 748. So much being undisputed, I cannot understand why he may not keep it out of use unless the licensee, or, for the matter of that, the buyer, will use some unpatented thing in connection with it. Generally speaking, the measure of a condition is the consequence of a breach, and if that consequence is one that the owner may impose unconditionally, he may impose it conditionlly upon a certain event. Ashley v. Ryan, 153 U. S. 436, 443, 38 L. ed. 773, 777, 4 Inters. Com. Rep. 664, 14 Sup. Ct. Rep. 865; Ohio ex rel. Lloyd v. Dollison, 194 U. S. 445, 449, 48 L. ed. 1062, 1066, 24 Sup. Ct. Rep. 703. Non debet cui plus licet, quod minus est non licere. D. 50, 17, 21. No doubt this principle might be limited or excluded in cases where the condition tends to bring about a state of things that there is a predominant public interest to prevent. But there is no predominant public interest to prevent a patented teapot or film feeder from being kept from the public, because, as I have said, the patentee may keep them tied up at will while his patent lasts. Neither is there any such interest to prevent the purchase of the tea or films that is made the condition of the use of the machine. The supposed contravention of public interest sometimes is stated as an attempt to extend the patent law to unpatented articles, which of course it is not, and more accurately as a possible domination to be established by such means. But the domination is one only to the extent of the desire for the teapot or film feeder, and if the owner prefers to keep the pot or the feeder unless you will buy his tea or films, I cannot see, in allowing him the right to do so, anything more than an ordinary incident of ownership, or, at most, a consequence of the Paper Bag Case, on which, as it seems to me, this case ought to turn. See Grant v. Raymond, 6 Pet. 218, 242, 8 L. ed. 376, 384. Not only do I believe that the rule that I advocate is right under the Paper Bag Case, but I think that it has become a rule of property that law and justice require to be retained. For fifteen years, at least since E. Bement & Sons v. National Harrow Co. 186 U. S. 70, 88-93, 46 L. ed. 1058, 1067-1070, 22 Sup. Ct. Rep. 747, if not considerably earlier, the public has been encouraged by this court to believe that the law is as it was laid down in Heaton-Peninsular Button-Fastener Co. v. Eureka Specialty Co. 35 L.R.A. 728, 25 C. C. A. 267, 47 U. S. App. 146, 77 Fed. 288, and numerous other decisions of the lower courts. I believe that many and important transactions have taken place on the faith of those decisions, and that for that reason as well as for the first that I have given, the rule last announced in Henry v. A. B. Dick Co. 224 U. S. 1, 56 L. ed. 645, 32 Sup. Ct. Rep. 364, should be maintained. I will add, for its bearing upon Straus v. Victor Talking Mach. Co. 243 U. S. 490, 61 L. ed. 866, 37 Sup. Ct. Rep. 412, that a conditional sale retaining the title until a future event after delivery has been decided to be lawful again and again by this court. Bailey v. Baker Ice Mach. Co. 239 U. S. 268, 272, 60 L. ed. 275, 285, 36 Sup. Ct. Rep. 50. I confine myself to expressing my views upon the general and important questions upon which I have the misfortune to differ from the majority of the court. I leave on one side the question of the effect of the Clayton Act, as the court had done, and also what I might think if the Paper Bag Case were not upheld, or if the question were upon the effect of a combination of patents such as to be contrary to the policy that I am bound to accept from the Congress of the United States. Mr. Justice McKenna and Mr. Justice Van Devanter concur in this dissent.

246.US.79

As applied to a corporation defendant, the provision of the Sherman Act of 1890, § 7, allowing actions for treble damages to be brought in the district in which the defendant "resides or is found," means that the corporation must be present in the district, by its officers or agents, carrying on its business. Upon consideration of the evidence, heZd, that the defendant corporation of New Jersey undertook in good faith to carry out a decree of dissolution made by the Circuit Court in New York, and to divest itself of a former branch business in Louisiana; and that subsequent service of process, upon the former manager of that business, in Louisiana, was ineffectual to bind the corporation. Defendant's revocation of its designation of a former manager of its former branch business in Louisiana, as its agent upon whom process might be served under the law of that State, was effectual, notwithstanding the instrument of revocation, attested under its seal and filed with the Louisiana Secretary of State, was executed by a vice president of the corporation, without formal sanction by the board of directors; it appearing that the vice president acted with the knowledge and consent of the corporation in carrying out the decree of dissolution. What constitutes such a doing of business as will subject a corporation to service of process depends upon the facts in each case. The general rule is that the business must be of a nature warranting the inference that the corporation has subjected itself to the local jurisdiction, and is, by its duly authorized officers or agents, present within the State or district where service is attempted. The fact that a foreign corporation owns stock in local, subsidiary companies, does not bring it within a State for the purpose of service of process upon it; nor does the practice of advertising its wares in the State and sending into it its agents, who, without authority to make sales, to collect money or extend credit, merely solicit orders of the retail trade to be turned over to local jobbers, to whom the corporation sells its good4 a-id who charge the retailers therefor. The Louisiana Act of 1904 (Laws 1904, Act No. 54, p. 133), as amended in 1908 (Laws 1908, Act No. 284, p. 423), providing for service of process on the Secretary of State of Louisiana, is not applicable, as construed by the State Supreme Court, to foreign corporations which have withdrawn from the State and ceased to do business there at the time of service, at in this case. Affirmed.

On January 4, 1912, the People's Tobacco Company, Limited, began suit against the American Tobacco Company in the District Court of the United States for the Eastern District of Louisiana to recover treble damages under section 7 of the Sherman Act of 1890 (Act July 2, 1890, c. 647, 26 Stat. 210 [Comp. St. 1916, § 8829]). On January 5, 1912, service of process was made upon W. R. Irby as manager of the company. On January 16, 1912, the company filed exceptions to the service on the ground that it was a corporation organized under the laws of the State of New Jersey; that it was not found within the Eastern District of Louisiana or in the State of Louisiana, and was not engaged in business there, nor had it an agent therein; that W. R. Irby, upon whom service had been attempted, was not an officer, agent, or employe of the defendant, the American Tobacco Company, or authorized to accept service of process upon it at that time. On January 25, 1912, service was made upon the Assistant Secretary of State of Louisiana. Exceptions to that service upon practically the same grounds were filed by the defendant company. A further service was undertaken on February 2, 1914, on the Secretary of State of Louisiana and like exceptions were filed by the defendant company to that service. Testimony was taken and upon hearing the District Court held that: 1. W. R. Irby was not the agent of the company at the time of the attempted service, and, therefore, the service upon him did not bring the company into court; 2. That the American Tobacco Company was not doing business in Louisiana at the time of the attempted service; 3. That the attempted service upon the Secretary of State of Louisiana did not bring the defendant corporation into court. Section 7 of the Sherman Act provides that suits of the character of the one now under consideration may be brought in the district in which the defendant 'resides or is found.' When applied to a corporation this requirement is the equivalent of saying that it must be present in the district by its officers and agents carrying on the business of the corporation. In this way only can a corporation be said to be 'found' within the district. In that manner it may manifest its submission to local jurisdiction and become amenable to local process. The testimony shows that up to November 30, 191 , the American Tobacco Company had a factory in New Orleans for the manufacture of tobacco and cigarettes known as the W. R. Irby Branch of the American Tobacco Company, of which W. R. Irby was manager. Under the law of the State it had filed in the office of the Secretary of State an appointment of W. R. Irby as agent, upon whom service of process might be made. On November 16, 1911, the Circuit Court of the United States for the Southern District of New York made a decree dissolving the American Tobacco Company. Among other things that decree provided that the American Tobacco Company should convey its W. R. Irby Branch to a company to be formed and known as the Liggett & Myers Tobacco Company. Conveyances were made to carry out this purpose. The American Tobacco Company by an instrument executed by Mr. Hill, its vice president, revoked the authority of W. R. Irby as its resident agent, and filed the revocation of authority in the office of the Secretary of State of Louisiana on December 15, 1911. W. R. Irby testified that thereafter he was the manager of the Liggett & Myers Tobacco Company, and that he had no connection whatsoever with the American Tobacco Company, nor had he drawn any salary from that company since December 1, 1911. It is true that the record discloses some instances in which collections were made upon bills in the name of the Irby Branch of the American Tobacco Company after the revocation of Mr. Irby's authority as its agent. Most of them were stamped across the face, Liggett & Myers Tobacco Company. There remained on hand with the Irby Branch at the time of the dissolution a quantity of cigarette paper which was continued to be delivered to purchasers by the employes of the Irby Branch of the Liggett & Myers Tobacco Company upon orders received from the American Tobacco Company, and for its benefit and upon its account. This practically continued until the stock was exhausted, which the testimony shows was within a month after the dissolution, and before the attempted service of process in this case. There were lodged in the custom house in New Orleans powers of attorney of the American Tobacco Company giving authority to those named therein to do what was necessary to make out export papers on behalf of the company. These powers of attorney do not appear to have been revoked, and existed after the service of process. The defendant company issued circulars subsequent to the time it was served with process in this suit; it also advertised in the New Orleans newspapers. A consideration of all the testimony leads us to the conclusion that the American Tobacco Company undertook in good faith to carry out the decree of dissolution, and to take that company out of business in the State of Louisiana. It is true, as found by the District Court, that at the time of the service, and thereafter, the American Tobacco Company was selling goods in Louisiana to jobbers, and sending its drummers into that State to solicit orders of the retail trade, to be turned over to the jobbers, the charges being made by the jobbers to the retailers. It further appears that these agents were not domiciled in the State, and did not have the right or authority to make sales on account of the defendant company, collect money, or extend credit for it. It also appears that the American Tobacco Company owned stock in other companies which owned stock in companies carrying on the tobacco business in the State of Louisiana. With these facts in mind we come to a consideration of the proper disposition of the case. We agree with the District Court that Irby at the time of the attempted service upon him was not the authorized agent of the American Tobacco Company. On December 1, 1911, the American Tobacco Company conveyed its Irby Branch to the Liggett & Myers Tobacco Company. On the same day W. R. Irby, who had been the designated agent of the defendant company, resigned as a director of the American Tobacco Company, and ceased to remain in it employment. On December 5, 1911, the power of attorney was revoked as we have hereinbefore stated by the company filing an instrument of revocation in the office of the Secretary of State of Louisiana; it is true that the revocation was by one of the vice presidents of the company and was attested by the seal of the corporation. But we are not impressed with the argument that this revocation was ineffectual because not sanctioned by formal action of the board of directors of the company. The vice president seems to have had authority in the matter. Apparently he acted with the knowledge and acquiescence of the corporation, and was carrying into effect the decree of dissolution. Upon the broader question, we agree with the District Court that the American Tobacco Company at the time of the attempted service was not doing business within the State of Louisiana. The question as to what constitutes the doing of business in such wise as to make the corporation subject to service of process has been frequently discussed in the opinions of this court, and we shall enter upon no amplification of what has been said. Each case depends upon its own facts. The general rule deducible from all our decisions is that the business must be of such nature and character as to warrant the inference that the corporation has subjected itself to the local jurisdiction, and is by its duly authorized officers or agents present within the state or district where service is attempted. Phila. & Reading R. R. Co. v. McKibbin, 243 U. S. 264, 37 Sup. Ct. 280, 61 L. Ed. 710; St. Louis Southwestern R. R. Co. v. Alexander, 227 U. S. 218, 226, 33 Sup. Ct. 245, 57 L. Ed. 486, Ann. Cas. 1915B, 77. The fact that the company owned stock in the local subsidiary companies did not bring it into the State in the sense of transacting its own business there. Peterson v. Chicago, R. I. & P. R. R. Co., 205 U. S. 364, 27 Sup. Ct. 513, 51 L. Ed. 841; Phila. & Reading R. R. Co. v. McKibbin, 243 U. S. 264, 268, 37 Sup. Ct. 280, 61 L. Ed. 710. As to the continued practice of advertising its wares in Louisiana, and sending its soliciting agents into that State, as above detailed, the agents having no authority beyond solicitation, we think the previous decisions of this court have settled the law to be that such practices did not amount to that doing of business which subjects the corporation to the local jurisdiction for the purpose of service of process upon it. Green v. C. B. & Q. R. R. Co., 205 U. S. 530, 27 Sup. Ct. 595, 51 L. Ed. 916; Phila. & Reading R. R. Co. v. McKibbin, 243 U. S. 264, 268, 37 Sup. Ct. 280, 61 L. Ed. 710. The plaintiff in error relies upon International Harvester Co. v. Kentucky, 234 U. S. 579, 34 Sup. Ct. 944, 58 L. Ed. 1479, but in that case the facts disclosed that there was not only a continuous course of business in the solicitation of orders within the State, but there was also authority upon the part of such agents to receive payment in money, checks and drafts on behalf of the company, and to take notes payable and collectible at banks in Kentucky; these things, taken together, we held amounted to doing business within the State of Kentucky in such manner as to make the Harvester Company amenable to the process of the courts of that State. As to the attempted service of process upon the Secretary of State of Louisiana under the Louisiana Act of 1904 (Act No. 54 of 1904) as amended 1908 (Act No. 284 of 1908), we understand the Act, as construed by the State Supreme Court, is not applicable to foreign corporations not present within the State and doing business therein at the time of the service, and having as in this case withdrawn from the State and ceased to do business there. Gouner v. Missouri Valley Iron Co., 123 La. 964, 49 South. 657. We reach the conclusion that the District Court did not err in maintaining the exceptions filed by the defendant company and in quashing the attempted service made upon it. Judgment affirmed. Mr. Justice McREYNOLD took no part in the consideration or decision of this case.

243.US.389

The power to regulate the use of the lands of the United States, and to prescribe the conditions upon which rights in them may be acquired by others, is vested exclusively in Congress. The inclusion of such lands within a State does not diminish this power, or subject the lands or interests in them to disposition by the state power; and, therefore, such lands, within a State, or ways across them, are not subject to be occupied or used for private or quasipublic purposes, under state laws, save such laws as have been adopted or made applicable by Congress. The Act of May 14, 1896, c. 179, 29 Stat. 120, relating exclusively to rights of way and the use of land for electric power purposes, covering the subject fully and specifically and containing new provisions, was evidently designed to be complete in itself, and therefore, by necessary implication, superseded the provisions of Rev. Stats., §§ 2339 and 2340 (derived from the Acts of 1866 and 1870), in so far as they were applicable to such rights of way. The legislation embodied in Rev. Stats., §§ 2339 and 2340, granted rights of way for ditches, canals and reservoirs only, and did not cover power-houses, transmission lines, or subsidiary structures. Sections 18-21 of the Act of March 3, 1891, c. 561, 26 Stat. 1095, relate to rights for ditches, canals and reservoirs for the purpose of irrigation and call for the filing of maps, to be effective when approved by the Secretary of the Interior; the Act of May 11, 1898, c..292, 30 Stat. 404, permits the rights so approved under the Act of 1891 to be used for certain purposes, including power development, as subsidiary to the main purpose of irrigation; but neither act applies where no maps have been filed or approved, where the rights claimed include power-houses, subsidiary buildings and transmission lines, and where irrigation is neither the sole nor the main purpose of the use. Whether or not the Act of February 15, 1901, c. 372, 31 Stat. 790, superseded other earlier right of way provisions, it obviously took the place of the Act of May 14, 1896, supra. The Act of February 1, 1905, c. 288, 33 Stat. 628, makes no provision for electric power-houses, transmission lines or structures subsidiary thereto, the rights of way granted being only for ditches, canals and reservoirs for diverting, storing and carrying water. The purposes for which rights of way may be obtained under the Act of February 1, 1905, supra, viz., municipal or mining purposes and for milling and reduction of ores, do not include the generating of electricity for general, commercial disposition even though some part of the current is sold in adjacent or distant towns for power, lighting and heating, or to persons engaged in mining, milling or reducing ores. The United States is neither bound nor estopped by acts of its officers or agents in entering into an arrangement or agreement to do or cause to be done what the law does not sanction or permit. So held in regard to an alleged agreement for the use of federal lands by a power company. As a general rule, laches or neglect of duty on the part of government officers is no defense to a suit to enforce a public right or protect a public interest. If this rule has exceptions, they in turn are limited by the principle which places on different planes an ordinary private suit over title and a suit maintained by the United States to enforce its policy respecting land held in trust for all the people. Causey v. United States, 240 U. S. 399, 402. The discretion of Congress to control the use of federal lands through administrative regulations is not narrowly confined. Where such regulations exceed the power of or authorization by Congress, they may be disregarded as void, but not so where they are merely illiberal, inequitable or unwise. Parties whose occupancy and use of federal lands can be legitimated only by complying with the Act of February 15, 1901, supra, may not be heard to complain of the regulations adopted in its execution until they seek a license or permit under the act and conform, or appropriately offer to conform, 'to all of the regulations which are lawful. The acts of Congress providing or recognizing that rights to the use of water in streams running through public lands and reservations may be acquired in accordance with local laws do not authorize the appropriation of rights of way through lands of the United States. In a suit by the United States to ertjoin unlawful occupancy and use of its reserved lands, compensation measured by the reasonable value of the occupancy and use, considering its extent and duration, should be included in the decree. The compensation should not be measured by the charges prescribed for like uses by governmental regulations when the regulations have not been accepted-or assented to by the defendants.

We are concerned here with three suits by the United States to enjoin the continued occupancy and use, without its permission, of certain of its lands in forest reservations in Utah as sites for works employed in generating and distributing electric power, and to secure compensation for such occupancy and use in the past. The reservations were created by executive orders and proclamations with the express sanction of Congress. Almost all the lands therein belong to the United States, and before the reservations were created were public lands subject to disposal and acquisition under the general land laws. The works in question consist of diversion dams, reservoirs, pipe lines, power houses, transmission lines, and some subsidiary structures. In the aggregate these are used in collecting water from mountain streams, in conducting it for considerable distances to power house where the force arising from its descent through the pipe lines is transmuted into electric energy, and in transmitting that energy to places beyond the reservations, where it is sold to whoever has occasion to use it for power, lighting, or heating. In each case some part of the works is on private lands, but much the greater part is on lands of the United States. Part was constructed before and part after the reservation was created, but all after 1896 and nearly all after 1901. The entire works are conducted in each instance as a commercial enterprise, and not as an incident to or in aid of any other business in which the defendant is engaged. In occupying and using the government lands as sites for these works the defendants have proceeded upon the assumption that they were entitled so to do without seeking or securing any grant or license from the Secretary of the Interior or the Secretary of Agriculture under the legislation of Congress, and, in truth, they have neither applied for nor received such a grant of license from either. But, notwithstanding this, they assert that they have acquired and are invested with rights to occupy and use permanently, for the purposes indicated, the government lands upon which the works are located. The principal object of the suits, as is said in one of the briefs, is to test the validity of these asserted rights, and, if they be found invalid, to require the defendants to conform to the legislation of Congress, or, at their option, to remove from the government lands. The district court ruled against the defendants upon the main question, following a decision of the circuit court of appeals in another case (126 C. C. A. 376, 209 Fed. 554), but refused the government's prayer for pecuniary relief. Cross appeals were then taken directly to this court. The first position taken by the defendants is that their claims must be tested by the laws of the state in which the lands are situate rather than by the legislation of Congress, and in support of this position they say that lands of the United States within a state, when not used or needed for a fort or other governmental purpose of the United States, are subject to the jurisdiction, powers, and laws of the state in the same way and to the same extent as are similar lands of others. To this we cannot assent. Not only does the Constitution (art. 4, § 3, cl. 2) commit to Congress the power 'to dispose of and make all needful rules and regulations respecting' the lands of the United States, but the settled course of legislation, congressional and state, and repeated decisions of this court, have gone upon the theory that the power of Congress is exclusive, and that only through its exercise in some form can rights in lands belonging to the United States be acquired. True, for many purposes a state has civil and criminal jurisdiction over lands within its limits belonging to the United States, but this jurisdiction does not extend to any matter that is not consistent with full power in the United States to protect its lands, to control their use, and to prescribe in what manner others may require rights in them. Thus, while the state may punish public offenses, such as murder or larceny, committed on such lands, and may tax private property, such as live stock, located thereon, it may not tax the lands themselves, or invest others with any right whatever in them. United States v. McBratney, 104 U. S. 621, 624, 26 L. ed. 869, 870; Van Brocklin v. Tennessee (Van Brocklin v. Anderson) 117 U. S. 151, 168, 2. L. ed. 845, 851, 6 Sup. Ct. Rep. 670; Wisconsin C. R. Co. v. Price County, 133 U. S. 496, 504, 33 L. ed. 687, 690, 10 Sup. Ct. Rep. 341. From the earliest times Congress by its legislation, applicable alike in the states and territories, has regulated in many particulars the use by others of the lands of the United States, has prohibited and made punishable various acts calculated to be injurious to them or to prevent their use in the way intended, and has provided for and controlled the acquisition of rights of way over them for highways, railroads, canals, ditches, telegraph lines, and the like. The states and the public have almost uniformly accepted this legislation as controlling, and in the instances where it has been questioned in this court its validity has been upheld and its supremacy over state enactments sustained. Wilcox v. Jackson, 13 Pet. 498, 516, 10 L. ed. 264, 273; Jourdan v. Barrett, 4 How. 169, 185, 11 L. ed. 924, 931; Gibson v. Chouteau, 13 Wall. 92, 99, 20 L. ed. 534, 536; Camfield v. United States, 167 U. S. 518, 42 L. ed. 260, 17 Sup. Ct. Rep. 864; Light v. United States, 220 U. S. 523, 536, 537, 55 L. ed. 570, 574, 31 Sup. Ct. Rep. 485. And so we are of opinion that the inclusion within a state of lands of the United States does not take from Congress the power to control their occupancy and use, to protect them from trespass and injury, and to prescribe the conditions upon which others may obtain rights in them, even though this may involve the exercise in some measure of what commonly is known as the police power. 'A different rule,' as was said in Camfield v. United States, 167 U. S. 518, 42 L. ed. 260, 17 Sup. Ct. Rep. 864, 'would place the public domain of the United States completely at the mercy of state legislation.' It results that state laws, including those relating to the exercise of the power of eminent domain, have no bearing upon a controversy such as is here presented, save as they may have been adopted or made applicable by Congress. The next position taken by the defendants is that their claims are amply sustained by §§ 2339 and 2340 of the Revised Statutes, originally enacted in 1866 [14 Stat. at L. 253, chap. 262, § 9] and 1870 [16 Stat. at L. 218, chap. 235, § 17, Comp. Stat. 1913, §§ 4647, 4648]. By them the right of way over the public lands was granted for ditches, canals, and reservoirs used in diverting, storing, and carrying water for 'mining, agricultural, manufacturing, and other purposes.' The extent of the right of way in point of width or area was not stated, and the grant was noticeably free from conditions. No application to an administrative officer was contemplated, no consent or approval by such an officer was required, and no direction was given for noting the right of way upon any record. Obviously this legislation was primitive. At that time works for generating and distributing electric power were unknown, and so were not in the mind of Congress. Afterwards, when they came into use, it was found that this legislation was at best poorly adapted to their needs. It was limited to ditches, canals, and reservoirs, and did not cover power houses, transmission lines, or the necessary subsidiary structures. In that situation Congress passed the Act of May 14, 1896, chap. 179, 29 Stat. at L. 120, Comp. Stat. 1913, § 4944, which related exclusively to rights of way for electric power purposes, and read as follows: 'That the Secretary of the Interior be, and hereby is, authorized and empowered, under general regulations to be fixed by him, to permit the use of right of way to the extent of twenty-five feet, together with the use of necessary ground, not exceeding forty acres, upon the public lands and forest reservations of the United States, by any citizen or association of citizens of the United States, for the purpose of generating, manufacturing, or distributing electric power.' We regard it as plain that this act superseded §§ 2339 and 2340 in so far as they were applicable to such rights of way, It dealt specifically with that subject, covered it fully, embodied some new provisions, and evidently was designed to be complete in itself. That it contained no express mention of ditches, canals, and reservoirs is of no significance, for it was similarly silent respecting power houses, transmission lines, and subsidiary structures. What was done was to provide for all in a general way without naming any of them. As the works in question were constructed after §§ 2339 and 2340 were thus superseded, the defendants' claims receive no support from those sections. No attempt was made to conform to the Act of 1896, and nothing is claimed under it. Some reliance is placed upon §§ 18-21 of the Act of March 3, 1891, chap. 561, 26 Stat. at L. 1095, Comp. Stat. 1913, §§ 4934-4937, and the Act of May 11, 1898, chap. 292, 30 Stat. at L. 404, Comp. Stat. 1913, § 4943. The first relates to rights of way for ditches, canals, and reservoirs for the purpose of irrigation, and, differing from §§ 2339 and 2340, calls for the filing of maps of location which are to be effective and noted upon the public records when approved by the Secretary of the Interior. The second permits rights of way 'approved' under the first to be used for certain additional purposes, including the development of power, 'as subsidiary to the main purpose of irrigation.' But here no maps of location have been filed or approved, the rights of way are not claimed merely for ditches, canals, or reservoirs, and irrigation is neither the sole nor the main purpose for which any part of the asserted rights of way is used. So it is apparent that the reliance upon these acts is ill-founded. In the oral and written arguments counsel have given much attention to the Act of February 15, 1901, chap. 372, 31 Stat. at L. 790, Comp. Stat. 1913, § 4946. On the part of the government it is insisted that the comprehensive terms of the act and its legislative history1 conclusively show that it was adopted as a complete revision of the confused and fragmentary right-of-way provisions found in several earlier enactments, including those already noticed, but this need not be considered or decided now beyond observing that the act obviously superseded and took the place of the law of May 14, 1896, supra. The act empowers the Secretary of the Interior, 'under general regulations to be fixed by him,' to permit the use of rights of way through the public lands, forest reservations,2 etc., for any one or more of several purposes, including the generation and distribution of electric power, carefully defines the extent of such rights of way, and embodies provisions not found in any of the earlier enactments. But the defendants can claim nothing under the act. They have not conformed to its requirements and have not received any permission or license under it. Another statute upon which the defendants rely is the Act of February 1, 1905, chap. 288, 33 Stat. at L. 628, Comp. Stat. 1913, § 823. But we think it does not help them. While providing for rights of way in forest reserves for ditches, canals, reservoirs and the like 'for municipal or mining purposes, and for the purposes of the milling and reduction of ores,' it makes no provision for power houses, transmission lines, or subsidiary structures such as the defendants have. And, in our opinion, the purposes named do not include those for which the works in question are used. It is not enough that some of the electric energy is sold in adjacent or distant towns, or to those who are engaged in mining or in milling or reducing ores. In an opinion rendered June 4, 1914, the Attorney General said of this act: 'The rights granted are described with particularity. The right of way for transmitting and distributing electrial power is not included expressly, nor is it so intimately related to any of the rights enumerated that a grant of the one must needs be implied as essential to the enjoyment of the other.' 30 Ops. Atty. Gen. 263. We regard this as the correct view. In their answers some of the defendants assert that when the forest reservations were created an understanding and agreement was had between the defendants, or their predecessors, and some unmentioned officers or agents of the United States, to the effect that the reservations would not be an obstacle to the construction or operation of the works in question; that all rights essential thereto would be allowed and granted under the act of 1905; that, consistently with this understanding and agreement, and relying thereon, the defendants, or their predecessors, completed the works and proceeded with the generation and distribution of electric energy, and that, in consequence, the United States is estopped to question the right of the defendants to maintain and operate the works. Of this it is enough to say that the United States is neither bound nor estopped by acts of its officers or agents in entering into an arrangement or agreement to do or cause to be done what the law does not sanction or permit. Lee v. Munroe, 7 Cranch, 366, 3 L. ed. 373; Filor v. United States, 9 Wall. 45, 49, 19 L. ed. 549, 551; Hart v. United States, 95 U. S. 316, 24 L. ed. 479; Pine River Logging Co. v. United States, 186 U. S. 279, 291, 46 L. ed. 1164, 1170, 22 Sup. Ct. Rep. 920. As presenting another ground of estoppel it is said that the agents in the forestry service and other officers and employees of the government, with knowledge of what the defendants were doing, not only did not object thereto, but impliedly acquiesced therein until after the works were completed and put in operation. This ground also must fail. As a general rule, laches or neglect of duty on the part of officers of the government is no defense to a suit by it to enforce a public right or protect a public interest. United States v. Kirkpatrick, 9 Wheat. 720, 735, 6 L. ed. 199, 203; Steele v. United States, 113 U. S. 128, 134, 28 L. ed. 952, 954, 5 Sup. Ct. Rep. 396; United States v. Beebe, 127 U. S. 338, 334, 32 L. ed. 121, 124, 8 Sup. Ct. Rep. 1083; United States v. Insley, 130 U. S. 263, 265, 266, 32 L. ed. 968, 969, 9 Sup. Ct. Rep. 485; United States v. Dalles Military Road Co. 140 U. S. 599, 632, 35 L. ed. 560, 571, 11 Sup. Ct. Rep. 988; United States v. Michigan, 190 U. S. 379, 405, 47 L. ed. 1103, 1112, 23 Sup. Ct. Rep. 742; State ex rel. Lott v. Brewer, 64 Ala. 287, 298; People v. Brown, 67 Ill. 435, 438; Den ex dem. Candler v. Lunsford, 20 N. C. 542 (4 Dev. & B. L. 407); Humphrey v. Reg. 2 Can. Exch. 386, 390; Reg. v. Black, 6 Can. Exch. 236, 253. And, if it be assumed that the rule is subject to exceptions, we find nothing in the cases in hand which fairly can be said to take them out of it, as heretofore understood and applied in this court. A suit by the United States to enforce and maintain its policy respecting lands which it holds in trust for all the people stands upon a different plane in this and some other respects from the ordinary private suit to regain the title to real property or to remove a cloud from it. Causey v. United States, 240 U. S. 399, 402, 60 L. ed. 711, 713, 36 Sup. Ct. Rep. 365. By their answers the defendants assert that some of the administrative regulations promulgated under the act of February 15, 1901, go beyond what is appropriate for the protection of the interest of the United States and are unconstitutional, unauthorized, and unreasonable. The regulations occupy many printed pages and the answers do not adequately show which regulations are assailed, or the grounds upon which the invalidity of particular ones is asserted. That Congress intends there shall be some administrative regulations on the subject is plainly shown in the act, and that its discretion in the matter is not narrowly confined is shown by our decisions in United States v. Grimaud, 220 U. S. 506, 55 L. ed. 563, 31 Sup. Ct. Rep. 480, and Light v. United States, 220 U. S. 523, 55 L. ed. 570, 31 Sup. Ct. Rep. 485. If any of the regulations go beyond what Congress can authorize, or beyond what it has authorized, those regulations are void and may be disregarded; but not so of such as are thought merely to be illiberal, inequitable, or not conducive to the best results. In the nature of things it hardly can be that all are invalid, and this was conceded in argument. The defendants have not complied with any, or really offered to do so, but have proceeded upon the theory that the act and all the regulations are without application to their situation. In this they have been mistaken, and so are occupying and using reserved lands of the United States without its permission and contrary to its laws. Not until they seek a license or permit under the act and conform, or appropriately offer to conform, to all lawful regulations thereunder, will they be in a position to complain that some of the regulations are invalid. As we interpret the decrees below, they enjoin the defendants from occupying and using the lands of the United States until, and only until, they acquire rights to do so by complying with some applicable statute and the lawful regulations. Of course, we do not imply that any of the regulations are invalid, but leave that question entirely open. Much is said in the briefs about several congressional enactments providing or recognizing that rights to the use of water in streams running through the public lands and forest reservations may be acquired in accordance with local laws, but these enactments do not require particular mention, for this is not a controversy over water rights, but over rights of way through lands of the United States, which is a different matter, and is so treated in the right-of-way acts before mentioned. See Snyder v. Colorado Gold Dredging Co. 104 C. C. A. 136, 181 Fed. 62, 69. As the defendants have been occupying and using reserved lands of the United States without its permission and contrary to its laws, we think it is entitled to have appropriate compensation therefor included in the decree. The compensation should be measured by the reasonable value of the occupancy and use, considering its extent and duration, and not by the scale of charges named in the regulations, as prayed in the bill. However much this scale of charges may bind one whose occupancy and use are under a license or permit granted under the statute, it cannot be taken as controlling what may be recovered from an occupant and user who has not accepted or assented to the regulations in any way. It follows that the decrees are right and must be affirmed, save as they deny the government's right to compensation for the occupancy and use in the past, and in that respect they must be reversed. It is so ordered.

242.US.468

When injunctive relief against action by state officials granted in the court below becomes superfluous and the case moot because of subsequent state legislation passed while the case is here pending, this court will reverse and remand with directions tc dismiss the bill without costs. 216 Fed. Rep. 413, reversed.

This is a bill to enjoin the State Board of Parol and the warden and physician of the state penitentiary at Fort Madison from performing vasectomy upon the plaintiff, the defendant in error, in pursuance of an Iowa statute approved April 19, 1913. 35 G. A. chap. 187, § 1. Supplement to Code 1913, chap. 19-B, § 2600-p. This act, among other things, directed the operation to be performed upon convicts in the penitentiary who had been twice convicted of felony, and on February 14, 1914, the board had ordered it, upon the ground that the plaintiff had been twice so convicted. The bill was filed on March 11, 1914. On April 15, 1914, following an opinion of the Attorney General that both felonies must have been committed after the passage of the act, the order was laid on the table, and the warden and physician made affidavits, filed on April 22, that the operation would not be performed by them. Nevertheless, three judges, disregarding the foregoing opinion and action, proceeded to issue a preliminary injunction as prayed in the bill. 216 Fed. 413. An appeal was taken to this court in 1914. In 1915 the Act of 1913 was repealed, and the substituted act does not apply to the plaintiff. Supplemental Supplement to the Code of Iowa, 1915, chap. 19-B, § 2600-s1. All possibility or threat of the operation has disappeared now, if not before, by the act of the state. Therefore, upon the precedents we are not called upon to consider the propriety of the action of the district court, but the proper course is to reverse the decree and remand the cause, with directions that the bill be dismissed without costs to either party. United States v. Hamburg-Amerikanische Packetfahrt-Actien Gesellschaft, 239 U. S. 466, 475, 478, 60 L. ed. 387, 391, 392, 36 Sup. Ct. Rep. 212; Jones v. Montague, 194 U. S. 147, 153, 48 L. ed. 913, 915, 24 Sup. Ct. Rep. 611; Dinsmore v. Southern Exp. Co. 183 U. S. 115, 120, 46 L. ed 111, 113, 22 Sup. Ct. Rep. 45; Mills v. Green, 159 U. S. 651, 658, 40 L. ed. 293, 295, 16 Sup. Ct. Rep. 132. Decree reversed. Bill to be dismissed without costs to either party.

246.US.450

In so far as the property, tangible and intangible, constituting a freight car line, is regularly and habitually used or employed in a State, it is Within the taxing power of that State although chiefly devoted or applied to interstate transportation, and may be taxed at its real value as part of a going concern. In determining whether a state tax is to be viewed as a tax on property measured by earnings or a tax on earnings, the view of the state court and legislature, though not conclusive, will not be rejected by this court unless ill founded. Under a law of Minnesota, part of a general system applied to railroads, telephone lines, etc., a company owning freight cars which it furnished to railroads for a fixed compensation per mile of travel and which were employed by the railroads within and without the State in hauling both interstate and intrastate commerce, was taxed at a stated per cent. of its gross earnings from the mileage within the State, in lieu of other taxes on the property so engaged, the tax being treated by the state court and legislature as a property tax, and not being in excess of what would be legitimate as an ordinary tax on such property, tangible and intangible, taken at its real value as part of a going concern. Held, that the tax was a property tax, not a tax on gross earnings burdening interstate commerce, and was not distinguishable from the tax sustained in United States Express Co. y. Minnesota, 223 U. S. 335. Held, further, that the tax was not to be deemed double or excessive from the fact that the receipts of the railroads from shipments in these cars, less the rental paid to the company, were made a factor in valuing the property on which the railroads were taxed. 129 Minnesota, 30, affirmed.

A tax, for each of the years 1907 to 1912 inclusive, imposed under a law of Minnesota (Acts 1907, c. 250; 1909, c. 473; 1911, c. 377) against the Cudahy Packing Company as a freight line company, and sustained by the Supreme Court of the state (129 Minn. 30, 151 N. W. 410), is here in question. Whether the tax constitutes an unconstitutional restraint or burden on interstate commerce is the matter for decision. The company is an Illinois corporation and operates plants in Iowa, Missouri and Kansas for slaughtering live stock and converting the same into fresh meats and other articles of commerce. It sells the products throughout the United States, maintains branch houses in several states, including three in Minnesota, and owns a line of refrigerator cars wherein the products are shipped to the branch houses and places of consumption. Under a contractual arrangement it supplies these cars to the railroads for use in such transportation and receives therefor a fixed compensation per mile of travel. In the territory embracing Minnesota this compensation or rental is one cent per mile whetehr the cars be loaded or empty. Usually the cars are moved to particular destinations with loads of the company's products and are returned empty to be loaded again, but where it is practicable to do so the railroads are free to carry other freight in them on the return trip. The company pays the usual tariff rates for the transportation of its products, just as though the railroads owned the cars, and also bears the expense of all repairs save such as become necessary through negligent handling by the railroads. The use made of the cars in Minnesota consists in transporting the company's products (a) across the state from points without on one side to points without on another, (b) from points without to points within the state and the reverse, and (c) between points within the state. Of their total mileage in the state 90 per cent. is in interstate and 10 per cent. in intrastate transportation. The average number of cars in the state per day ranges from 10 to 12. The cash value of each car, as a separate article of tangible property, is from $700 to $900, and the intangible property incident to their combined use under the contractual arrangement with the railroads is also, as the record shows, of substantial value. The tax in question is all that is assessed against the company in respect of the cars or the intangible property. It has other tangible property in the state, not pa t of its car line, whereon it pays the usual local taxes. The receipts of the railroads from shipments carried in these cars in Minnesota, less the compensation or rental paid to the company, are added to the other gross earnings of the railroads from business in the state and the total is taken as the value for purposes of taxation of the property which the railroads own or operate in the state for railway purposes. As construed and applied by the state court, the Minnesota law requires a freight line company, meaning a company furnishing or leasing cars to railroads for freight transportation, to report annually its gross earnings from the operation of its car line within the state and to pay, in lieu of other taxes on the property so employed, a tax fixed at a stated per cent. of such earnings. That court holds that this law is an exertion of the power of the state to tax the property within its limits from which the earnings are derived and is intended to embody a practical method of reaching and valuing that property, tangible and intangible, for taxing purposes. In so far as the property constituting this car line is regularly or habitually used or employed in Minnesota it is within the taxing power of the state, although chiefly devoted or applied to interstate transportation. Pullman's Car Co. v. Pennsylvania, 141 U. S. 18, 11 Sup. Ct. 876, 35 L. Ed. 613; Adams Express Co. v. Ohio, 165 U. S. 194, 17 Sup. Ct. 305, 41 L. Ed. 683; Id., 166 U. S. 185, 17 Sup. Ct. 604, 41 L. Ed. 965; American Refrigerator Co. v. Hall, 174 U. S. 70, 19 Sup. Ct. 599, 43 L. Ed. 899; Union Refrigerator Co. v. Lynch, 177 U. S. 149, 20 Sup. Ct. 631, 44 L. Ed. 708. This is not questioned; but it is insisted that the tax imposed is not a property tax but one laid directly on the gross earnings. Of course, if it is laid on the earnings as such, they being derived largely from interstate commerce, it is an unconstitutional restraint or burden on such commerce and void. Fargo v. Michigan, 121 U. S. 230, 7 Sup. Ct. 857, 30 L. Ed. 888; Philadelphia & Southern Steamship Co. v. Pennsylvania, 122 U. S. 326, 7 Sup. Ct. 1118, 30 L. Ed. 1200; Galveston, Harrisburg & San Antonio Ry. Co. v. Texas, 210 U. S. 217, 28 Sup. Ct. 638, 52 L. Ed. 1031. On the other hand, if what is done is to reach the property and not to tax the gross earnings, the latter being taken merely as an index or measure of the value of the former, it well may be that the objection urged against the tax is untenable; for, as this court has said, 'by whatever name the tax or taxes may be called that are fixed by reference to the value of the property, if they are not imposed because of its use in interstate or foreign commerce, and if they amount to no more than would be legitimate as an ordinary tax upon the property, valued with reference to the use in which it is employed, they are not open to attack' as restraining or burdening such commerce. St. Louis Southwestern Ry. Co. v. Arkansas, 235 U. S. 350, 367, 35 Sup. Ct. 99, 59 L. Ed. 265; Postal Telegraph Co. v. Adams, 155 U. S. 688, 15 Sup. Ct. 268, 360, 39 L. Ed. 311; Wisconsin & Michigan Ry. Co. v. Powers, 191 U. S. 379, 387, 24 Sup. Ct. 107, 48 L. Ed. 229; Fargo v. Hart, 193 U. S. 490, 499, 24 Sup. Ct. 498, 48 L. Ed. 761; Galveston, Harrisburg & San Antonio Ry. Co. v. Texas, supra. As before stated, the state court regards the tax as imposed in respect of the property rather than the earnings, and the same view seems to be taken by the Legislature, for the Act of 1909 speaks of the tax as 'a tax upon its [the company's] property' and the Act of 1911 says 'the value of such property [that used within the state] for purpose of taxation is to be determined' by reference to the gross earnings from the mileage within the state. True, this local view is not conclusive on this court, but it cannot be rejected unless it can be said to be ill founded. The question of the nature and effect of taxes more or less like this has been repeatedly considered in t is court. In some instances its solution has been attended with considerable difficulty, for while the controlling general principles have long been well settled it has not been easy to apply to all the varying situations presented. A short reference to two recent cases in which the earlier decisions were reviewed will leave little to be said in solving the question here. We refer to Meyer v. Wells Fargo & Co., 223 U. S. 298, 32 Sup. Ct. 218, 56 L. Ed. 445, and United States Express Co. v. Minnesota, 223 U. S. 335, 32 Sup. Ct. 211, 56 L. Ed. 459, both decided on the same day. The former involved a tax in Oklahoma of a stated per cent. of the gross receipts of an express company doing both a local and an interstate business in that state. The statute (Laws Okl. 1910, c. 44, § 2) called the tax a 'gross revenue tax' and declared that it was to be 'in addition to the taxes levied and collected upon an ad valorem basis upon the property and assets' of the company. We held that the tax could not be sustained as a tax on the gross earnings, they being partly derived from interstate commerce, and also held that it could not be regarded as a property tax, because, as the statute disclosed, all the property of the company in the state was to be reached and valued in another way. The other case involved a tax in Minnesota of a designated per cent. of the gross earnings of an express company from business done in that state, the business being partly local and partly interstate commerce. The statute declared that the tax was to be in lieu of other taxes on the company's property, and the state court held that it was not in reality a tax on the gross earnings, but was a tax on the property, the earnings being taken merely as a measure of the value of the property for taxing purposes. We accepted and gave effect to that holding, not as being conclusive on us, but on the grounds that the property from which the earnings were derived was not to be otherwise taxed, that the tax was part of a system intended to reach the full value of the company's property in the state as reflected by the gross earnings, and that the amount of the tax did not appear to be in excess of what would be legitimate as an ordinary tax on the property, valued with reference to its use as part of a going concern. The case dealing with the Oklahoma tax was distinguished by pointing out that that tax could not be regarded as a property tax, because it was to be in addition to another tax reaching the full value of the company's property in the state. The law imposing the present tax is closely patterned after the one exacting the tax upheld in United States Express Co. v. Minnesota, and contains the same declaration that the tax shall be in lieu of other taxes on the property. The statutes differ only in minor details and are both parts of a general system which the state applies to railroads, telephone lines and the like. So, unless this tax be otherwise distinguishable, it must, under the decision in that case, be regarded as a property tax and not as laid on the gross earnings. Because the usual tax rate, if applied to the cash value of the cars taken separately, would result in an appreciably lower tax, it is insisted that the tax imposed is in excess of what would be legitimate as an ordinary tax on the property. But the contention proceeds on an erroneous assumption. The state is not confined to taxing the cars or to taxing them as separate articles. It may tax the entire property, tangible and intangible, constituting the car line as used within its limits, and may tax the same at its real value as part of a going concern. The record makes it reasonably certain that the property, valued with reference to its use and what it earns, is worth considerably more than the cash value of the cars taken separately—enough more to indicate that the tax is not in excess of what would be legitimate as an ordinary tax on the property taken at its real or full value. Because the receipts of he railroads from shipments in these cars, less the rental paid to the company, are made a factor in valuing for taxation the property on which the railroads are taxed, it is contended that the cars are taxed twice, once to the company and again to the railroads, and are excessively valued. The contention apparently assumes that the receipts from such shipments arise solely from the use of these cars, whereas they arise in part from the use of the tracks, locomotives, fuel, labor and the like provided by the railroads. Not improbably only a monor part is fairly attributable to the use of cars. In any event, the company has an interest in the car line which yields it a rental of one cent for each mile of travel. This interest is taxable and the state values it for that purpose by the rental received. In valuing the property on which the railroads are taxed the amount of the rental is deducted from their earnings. This plainly discloses a purpose to avoid taxing the same property twice or at more than its value, measured by what it earns. We think the tax is not distinguishable from that sustained in United States Express Co. v. Minnesota. Judgment affirmed.

245.US.217

Establishing and maintaining a public yard for the sale of wood, coal and other fuel, without financial profit, to the inhabitants of a municipality, held, a public purpose for which taxes may be levied without violating the Fourteenth Amendment. Revised Statutes of Maine, 1903, c. 4, § 87, sustained. 113 Maine, 123, affirmed.

By an act of the Legislature of the state of Maine approved March 19, 1903, P. L. 1903, c. 122; section 87, chapter 4, Revised Statutes of Maine, 1903, it was provided: 'Any city or town may establish and maintain, within its limits, a permanent wood, coal, and fuel yard, for the purpose of selling, at cost, wood, coal and fuel to its inhabitants. The term 'at cost' as used herein, shall be construed as meaning without financial profit.' The city of Portland, Me., voted to establish and maintain within its limits a permanent coal and fuel yard for the purposes of selling at cost wood, coal, and fuel to its inhabitants, and that the money necessary for such purposes be raised by taxation, and that the term 'at cost' as used in said vote should be construed as meaning without financial profit. On February 3, 1913, the common council of the city at a legal meeting passed the vote, and on the same date it was passed by the board of aldermen of the city, and on February 4, 1913, the mayor of the city approved it, whereupon it became the vote of the city of Portland. The city voted to appropriate the sum of $1,000 to be devoted to carrying out the purposes of the vote, and the appropriation was passed by the common council, the board of aldermen, and approved by the mayor of the city. This suit was brought by citizens and taxpayers of Portland in the Supreme Judicial Court of Maine in equity to enjoin the establishment of the yard. The Supreme Judicial Court sustained a demurrer to the bill, and dismissed it. 113 Me. 123, 93 Atl. 41. A writ of error brings the case here because of alleged violation of rights secured to the plaintiffs in error by the Fourteenth Amendment. The contention is that the establishment of the municipal wood yard is not a public purpose; that taxation to accomplish that end amounts to the taking of the property of the plaintiffs in error without due process of law. The decision of the case turns upon the answer to the question whether the taxation is for a public purpose. It is well settled that moneys for other than public purposes cannot be raised by taxation, and that exertion of the taxing power for merely private purposes is beyond the authority of the State. Citizens' Saving & Loan Ass'n v. Topeka, 20 Wall. 655, 22 L. Ed. 455. The act in question has the sanction of the legislative branch of the state government, the body primarily invested with authority to determine what laws are required in the public interest. That the purpose is a public one has been determined upon full consideration by the Supreme Judicial Court of the state upon the authority of a previous decision of that court. Laughlin v. City of Portland, 111 Me. 486, 90 Atl. 318, 51 L. R. A. (N. S.) 1143, Ann. Cas. 1916C, 734. The attitude of this court towards state legislation purporting to be passed in the public interest, and so declared to be by the decision of the court of last resort of the state passing the act, has often been declared. While the ultimate authority to determine the validity of legislation under the Fourteenth Amendment is rested in this court, local conditions are of such varying character that what is or is not a public use in a particular state is manifestly a matter respecting which local authority, legislative and judicial, has peculiar facilities for securing accurate information. In that view the judgment of the highest court of the state upon what should be deemed a public use in a particular state is entitled to the highest respect. Hairston v. Danville & Western Ry. Co., 208 U. S. 598, 607, 28 Sup. Ct. 331, 52 L. Ed. 637, 13 Ann. Cas. 1008. In Union Lime Co. v. Chicago & N. W. Ry. Co., 233 U. S. 211, 34 Sup. Ct. 522, 58 L. Ed. 924, this court declared that a decision of the highest court of the state declaring a use to be public in its nature would be accepted unless clearly not well founded, citing Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 160, 17 Sup. Ct. 56, 41 L. Ed. 369; Clark v. Nash, 198 U. S. 361, 369, 25 Sup. Ct. 676, 49 L. Ed. 1085, 4 Ann. Cas. 1171; Strickley v. Highland Boy Mining Co., 200 U. S. 527, 531, 26 Sup. Ct. 301, 50 L. Ed. 581, 4 Ann. Cas. 1174; Offield v. N. Y., N. H. & H. R. R. CO., 203 U. S. 372, 377, 27 Sup. Ct. 72, 51 L. Ed. 231; Hairston v. Danville & Western Ry. Co., 208 U. S. 598, 607, 28 Sup. Ct. 331, 52 L. Ed. 637, 13 Ann. Cas. 1008. This doctrine was reiterated in O'Neill v. Leamer, 239 U. S. 244, 253, 36 Sup. Ct. 54, 60 L. Ed. 249. In the case of Laughin v. City of Portland, 111 Me., supra, the matter was fully considered by the Supreme Judicial Court of that state. After reviewing the cases which establish the general authority of municipalities in the interest of the public health, convenience, and welfare to make provisions for supplying the inhabitants of such communities with water, light, and heat by means adequate for that purpose, the court came to consider the distinction sought to be made between the cases which sustain the authority of the state to authorize municipal action for the purposes stated, and the one under consideration, because of the fact that in the instances in which municipal authority had been sustained the use of the public streets and highways for mains, poles, and wires in the distribution of water, light, and heat had been required under public authority, whereas in supplying fuel to consumers, under the terms of the law in question, no such permission was essential, the court said (111 Me. 486, 496, 90 Atl. 318, 322 [51 L. R. A. (N. S.) 1143, Ann. Cas. 1916C, 734]): 'Let us look at the question from a practical and concrete standpoint. Can it make any real and vital difference and convert a public into a private use if, instead of burning the fuel at the power station to produce the electricity, or at the central heating plant to produce the heat and then conducting it in the one case by wires and in the other by pipes to the user's home, the coal itself is hauled over the same highway to the same point of distribution? We fail to see it. It is only a different and simpler mode of distribution and, if the Legislature has the power to authorize municipalities to furnish heat to its inhabitants 'it can do this by any appropriate means which it may think expedient.' The vital and essential element is the character of the service rendered and not the means by which it is rendered. It seems illogical to hold that a municipality may relieve its citizens from the rigor of cold if it can reach them by pipes or wires placed under or above the highways but not if it can reach them by teams traveling along the identically same highway. It will be something of a task to convince the ordinarily intelligent citizen that an act of the Legislature authorizing the former is constitutional, but one authorizing the latter is unconstitutional beyond all rational doubt. For we must remember that we are considering the existence of the power in the Legislature which is the only question before the court, and not the wisdom of its exercise which is for the Legislature alone.' Answering the objection that sustaining the act in question opens the door to the exercise of municipal authority to conduct other lines of business and commercial activity to the destruction of private business, the court said (111 Me. 500, 90 Atl. 324, 51 L. R. A. [N. S.] 1143, Ann. Cas. 1916C, 734): 'But it is urged, why, if a city can establish a municipal fuel yard, can it not enter upon any kind of commercial business, and carry on a grocery store, or a meat market, or a bakery. The answer has been already indicated. Such kinds of business do not measure up to either of the accepted tests. When we speak of fuel, we are dealing not with ordinary articles of merchandise for which there may be many substitutes, but with an indispensible necessity of life, and more than this, the commodities mentioned are admittedly under present economic conditions regulated by competition in the ordinary channels of private business enterprise. The principle that municipalities can neither invade private liberty nor encroach upon the field of private enterprise should be strictly maintained as it is one of the main foundations of our prosperity and success. If the case at bar clearly violated that principle it would be our duty to pronounce the act unconstitutional, but in our opinion it does not. The element of commercial enterprise is entirely lacking. The purpose of the act is neither to embark in business for the sake of direct profits (the act provides that fuel shall be furnished at cost) nor for the sake of the indirect gains that may result to purchasers through reduction in price by governmental competition. It is simply to enable the citizens to be supplied with something which is a necessity in its absolute sense to the enjoyment of life and health, which could otherwise be obtained with great difficulty and at times perhaps not at all, and whose absence would endanger the community as a whole.' Bearing in mind that it is not the function of this court under the authority of the Fourteenth Amendment to supervise the legislation of the states in the exercise of the police power beyond protecting against exertions of such authority in the enactment and enforcement of laws of an arbitrary character, having no reasonable relation to the execution of lawful purposes, we are unable to say that the statute now under consideration violates rights of the taxpayer by taking his property for uses which are private. The authority to furnish light and water by means of municipally owned plants has long been sanctioned as the accomplishment of a public purpose justifying taxation with a view to making provision for their establishment and operation. The right of a municipality to promote the health, comfort, and convenience of its inhabitants by the establishment of a plant for the distribution of natural gas for heating purposes was sustained, and we think properly so, in State of Ohio v. Toledo, 48 Ohio St. 112, 26 N. E. 1061, 11 L. R. A. 729. We see no reason why the state may not, if it sees fit to do so, authorize a municipality to furnish heat by such means as are necessary and such systems as are proper for its distribution. Heat is as indispensable to the health and comfort of the people as is light or water. In any event we are not prepared to say that when a state authorizes a municipality to tax with a view to providing heat at cost to the inhabitants of the city, and that purpose is declared by the highest court of the state to be a public one, that the property of a citizen who is taxed to effect such purpose is taken in violation of rights secured by the Constitution of the United States. As this view decides the questions open to consideration, it follows that the judgment of the Supreme Judicial Court of Maine must be affirmed. Affirmed.

246.US.547

Section 162 of the Judicial Code, conferring jurisdiction on the Court of Claims in certain cases to determine the claims of those "whose property was taken" and sold under the Abandoned Property Act of March 12, 1863, and amendments, applies only to claims based on ownership at the time of seizure. Wliere an owner of cotton sold it to the Confederate Government, accepting Confederate bonds as full payment and agreeing to care for it and deliver it as ordered, and the cotton was seized under the Act of 1863, supra, while still in his possession, held, that he was neither owner nor lienor, notwithstanding the bonds had become worthless and his vendee insolvent; and that there was no basis for a suit by his administrator in the Court of Claims. Whitfield v. United States, 92 U. S. 165. The intention of the Congress is to be sought for primarily in the language used, and where this expresses an intention reasonably intelligible and plain it must be accepted without modification by resort to construction or conjecture. It is to be presumed that an intention to change the law as declared by this court will be expressed by Congress in plain terms --especially where the matter is very important,--rather than in such as are consonant with and within the scope of this court's previous decision. Affirmed.

This is an appeal from a decision by the Court of Claims sustaining a demurrer and dismissing appellant's petition. The appellant alleges that his decedent on April 28, 1863, 'executed a bill of sale to the Confederate States of America' for seventy-two bales of cotton and received therefor 'bonds of the Confederate States government to the nominal value of $5,500.' This bill of sale reads as follows: '72 Bales; Aggregate Weight 37309 at 15 $5,596.35/100 'State of Mississippi, County of Copiah: 'Pine Ridge, April 28/63. 'The undersigned having sold to the Confederate States of America, and received the value of same in bonds, the receipt of which is hereby acknowledged, bales of cotton, marked, numbered and classed as in the margin, which are now deposited at his gin house & shed hereby agrees to take due care of said cotton whilst on his plantation, and to deliver the same at his own expense, at Brookhaven, in the state of Miss. to the order of the Secretary of the Treasury, or his agents, or their assigns. 'J. H. Thompson.' It is further alleged that the appellant has no knowledge as to the disposition made of the bonds received by his decedent and that they became valueless on surrender of the military forces of the Confederate States; that the cotton remained in the possession of his decedent until subsequent to June 30, 1865, when forty-three of the seventy-two bales were taken from him by United States Treasury agents under warrant of the Act of Congress, approved March 3, 1863, entitled 'An act to provide for the collection of abandoned property' and for other purposes; that the cotton was sold and the proceeds deposited in the Treasury of the United States, and that 'the claimant (appellant) and said decedent have at all times borne true allegiance to the government of the United States and have not in any way voluntarily aided, abetted or given encouragement to rebellion against the said government, that is to say, if any such acts were committed during the late Civil War between the years 1861 and 1865, a full pardon has been granted therefor by the President of the United States.' Upon the facts thus stated the appellant asserts a right to recover the net proceeds of the cotton seized and sold, based upon the terms of section 162 of the Act of March 3, 1911 (the Judicial Code) which reads as follows: 'Sec. 162. The Court of Claims shall have jurisdiction to hear and determine the claims of those whose property was taken subsequent to June the first, 1865, under the provisions of the act of Congress approved March twelfth [third], 1863, entitled 'An act to provide for the collection of abandoned property and for the prevention of frauds in insurrectionary districts within the United States,' and acts amendatory thereof where the property so taken was sold and the net proceeds thereof were placed in the Treasury of the United States; and the Secretary of the Treasury shall return said net proceeds to the owners thereof, on the judgment of said court, and full jurisdiction is given to said court to adjudge said claims, any statutes of limitations to the contrary notwithstanding.' Assuming that the pardon pleaded in the petition and the decisions of this court relieve the appellant of any disability on account of the claimed disloyalty of his decedent (Carlisle v. United States, 16 Wall. 147, 21 L. Ed. 426), it is clear that he can prevail only if his decedent was the owner of t e cotton when it was seized, for the Court of Claims is given jurisdiction to hear and determine only 'claims of those whose property is taken,' and this language can have no other meaning. In the case of Whitfield v. United States, 92 U. S. 165, 23 L. Ed. 705, it was decided that a sale of cotton, with payment in bonds, under circumstances precisely similar to those we have here, passed title to the Confederate government without formal delivery, so that the vendor ceased to be the owner of the cotton from the time he accepted the bonds. It is frankly conceded by the appellant that this decision rules the case at bar and we are asked to reconsider and overrule it on various grounds. It is argued that, because appellant's decedent in this case (as in that) continued in possession of the cotton until his vendee became insolvent and the bonds given in payment became valueless, he had a lien for the value of it, which constituted him the owner within the meaning of the statute. The report of the Whitfield Case shows that this claim was pressed upon the attention of this court, and that it was rejected for the reason that the bonds were accepted as payment, as fully as if it had been made in money, with all the incidents of such payment. With this conclusion we are satisfied. It is also argued that Congress, in enacting this section, intended to give a right of recovery to all persons who sold cotton to the Confederate government, which was afterwards seized by the United States under warrant of the Act of March 3, 1863, referred to, and upon the theory that such sales were void and therefore did not pass title but left the nominal vendors the owners of the cotton, we are urged to so construe the section as to give effect to such supposed intention. It is asserted that evidence of this intention is to be found in the fact that if not so construed the section will be ineffective and meaningless, because all claims for property taken from owners under the Act of March 3, 1863, other than for such as was sold to the Confederate government had been disposed of before its enactment. Even if the non-existence of other claims for the statute to operate upon were shown, as it is not, by the petition and the attached exhibit, still this contention could not be allowed. The intention of the Congress is to be sought for primarily in the language used, and where this expresses an intention reasonably intelligible and plain it must be accepted without modification by resort to construction or conjecture. Gardner v. Collins, 2 Pet. 58, 93, 7 L. Ed. 347; United States v. Goldenberg, 168 U. S. 95, 102, 18 Sup. Ct. 3, 42 L. Ed. 394. We have found that section 162, relied upon by appellant, is sufficiently clear in meaning, and we cannot doubt that if the Congress had intended by it to change the law, as evidenced by the Whitfield decision, of which we must assume that it had full knowledge (Chesapeake & Potomac Tel. C. v. Manning, 186 U. S. 238, 245, 22 Sup. Ct. 881, 46 L. Ed. 1144) it would have done so in plain terms, especially in a matter of such great importance as we have here, and that language would not have been used which, as we have seen, confers jurisdiction upon the Court of Claims only in cases which are clearly consonant with and within the scope of that decision. It results that the judgment of the Court of Claims must be Affirmed.

244.US.255

Upon the authority of Southern Pacific Co. v. Jensen, ante, 205, Held, that the New York Workmen's Compensation Act is unconstitutional as applied to the case of a longshoreman employed by a steamship company engaged in interstate transportation by sea, who was injured while on board a vessel unloading her at her wharf in ,navigable waters in New York. 215 N. Y. 529, reversed. THE case is stated in the opinion.

Purporting to proceed under the Workmen's Compensation Law of New York (Consol. Laws, chap. 67), the State Commission on September 3, 1914, made an award to defendant in error, Walker. '1. William Alfred Walker, a claimant, is a longshoreman, residing at 151 West 133d street, New York city. Prior to July 1, 1914, he was employed in the city of New York by the Clyde Steamship Company for longshore work. He was injured on July 1, 1914, while in the employ of the Clyde Steamship Company as a longshoreman. '2. The Clyde Steamship Company is a corporation organized and existing under the laws of Maine, where it has its principal office. It also has an office at Pier 36, North river. '3. During the discharge of the Cherokee and at the time of the accident, the claimant was on board the steamship Cherokee, owned and operated by the Clyde Steamship Company. During the year prior to the accident, Walker had been employed from time to time by the Clyde Steamship Company and could have been assigned to work upon the pier. The Cherokee was, at the time of the accident, moored to and along side Pier 37, North river, New York city, lying in navigable waters of the Hudson river. Said pier is leased by Clyde Steamship Company from the city of New York. '4. While claimant was hooking the rope of a derrick into a load of lumber in the between decks of said vessel, for the purpose of unloading it from that vessel, his hand was jammed against the lumber, resulting in laceration of the second finger of the left hand. Claimant was disabled by reason of the injury from July 1, 1914, to July 22, 1914, returning to work upon the latter date. '5. The business of the Clyde Steamship Company in this state consists solely of carrying passengers and merchandise to New York from other states, and carrying passengers and merchandise from New York to other states. All cargo on board the Cherokee, including the lumber aforesaid, had been taken on board in the state of North Carolina, and carried by water to New York, and was there unloaded from the steamship Cherokee. The claimant was engaged solely in handling said lumber. '6. The injury was an accidental injury and arose out of and in the course of the employment of claimant by the Clyde Steamship Company. The injury did not result solely from the intoxication of the injured employee while on duty, and was not occasioned by the wilful intention of the injured employee to bring about the injury or death of himself or another. '7. The average weekly wage of claimant was $17.30.' Without opinion the appellate division affirmed the award, and this action was approved by the court of appeals. 215 N. Y. 529, 109 N. E. 604, Ann. Cas. 1916B, 87. In Southern P. Co. v. Jensen, just decided [244 U. S. 205, 61 L. ed. ——, 37 Sup. Ct. Rep. 524], we considered and disposed of the fundamental question here involved. The legislature exceeded its authority in attempting tempting to extend the statute to conditions like those which the record discloses. The judgment of the court below must be reversed and the cause remanded for further proceedings not inconsistent with our opinion in the former case. Reversed. Dissenting: Mr. Justice Holmes, Mr. Justice Pitney, Mr. Justice Brandeis, and Mr. Justice Clarke.

246.US.512

The "28 Hour Law," forbidding interstate railroads from confining animals in cars beyond a certain period without unloading them for rest, water and feeding, unless prevented by accidental or unavoidable causes which cannot be anticipated or avoided by the exercise of due diligence and foresight, and subjecting every such carrier who knowingly and wilfully fails to comply therewith to a penalty, must be construed with a view to carrying out its humanitarian purpose, but the exception in favor of the carrier must be given proper latitude hnd enforced in the light of practical railroad conditions. If, in the exercise of ordinary care, prudence and foresight, the carrier reasonably expects that, following the determined schedule, the containing car will reach destination, or some unloading place, within the prescribed time, it properly may be put in transit. Thereafter, the duty is on the carrier to exercise the diligence and foresight which prudent men, experienced in such matters, would adopt, to prevent accidents and delays and to overcome the effect of any which may happen, with an honest purpose always to secure unloading within the lawful period.. If, notwithstanding all this, unloading is actually prevented by storm or accident the reasonable delay must be excused. 234 Fed. Rep. 268, reversed.

Charging violation of the Act of June 29, 1906 (34 Stat. 607), to prevent cruelty to animals while in transit, the United States sued petitione for the prescribed penalty and recovered a judgment in the District Court, Northern District of Illinois, which the Circuit Court of Appeals affirmed. 234 Fed. 268, 148 C. C. A. 170. The statute forbids an interstate railroad carrier from confining animals in cars longer than thirty-six hours, upon written request, without unloading them for rest, water and feeding 'unless prevented by storm or by other accidental or unavoidable causes which cannot be anticipated or avoided by the exercise of due diligence and foresight,' and subjects every such carrier 'who knowingly and willlfully fails to comply' therewith to a penalty. Admitting continuous confinement for more than thirty-six hours petitioner defended upon the ground that it was prevented from unloading within the required period by exculpatory accidental and unavoidable causes. It appeared: The animals were loaded at Ringsted, Iowa, 438 miles from destination—Union Stock Yards, Chicago—at 6 p. m. October 4th, and as part of a train the car containing them left Clinton, Iowa, 138 miles from Chicago, at 6 p. m. October 5th. The ordinary schedule time between the latter points is nine hours, but without increase of actual moving speed the run had been made in about six. While the train was passing through Proviso, 16 miles from destination, at 2:48 a. m. October 6th a drawbar came out and derailed a car. A delay of two hours and fifty-two minutes followed—not undue the carrier contends, but unreasonably long the government maintains. Later, at Brighton Park an air hose burst causing further delay of twenty-eight minutes. The car reached the stock yards at 9:05 a. m. October 6th—thirty-nine hours and five minutes after being loaded. In its charge to the jury the trial court said: 'Your inquiry has to do with the transportation of this car of stock from the point of origin out in Iowa to destination, Union Stock Yards, and if, on the evidence in this case, you conclude that the railway company, by the exercise of due diligence, would have gotten that car of stock from the point of origin to Union Stock Yards inside of thirty-six hours, your verdict should be in favor of the United States and against the defendant, even though you should be of the opinion that these two particular things which have been made the subject of most of the contention here were properly handled by the railway company. 'Now, in determining this question you take into consideration the distance, among other things, the distance shown by the evidence from the point of origin to destination, what the evidence shows as to the period of time, thirty-nine hours and five minutes consumed from point of origin to destination, not merely from Clinton to Chicago, the whole movement is here for your consideration and to be considered by you in determining whether or not due diligence has been shown by the carrier. 'Now, what is due diligence? Due diligence, as that term is used in this statute means the exercise of foresight bringing to bear on the situation in hand, the transaction in hand, the human intelligence of an average man employed in such business and exercised by a man who has been experienced in railroad business, trained in railroad business so that he knows what should be done in the matter of handling railroads, operating railroads, moving cars—not merely the movement of an engine, the handling of the throttle by an engineer, not merely the handling of the conductor's work, the brakeman's work or the division superintendent's work, but the whole thing involved in the transaction of operation of the railroad in so far as the movement of this train is concerned, and whatever ingenuity, that is to say whatever human intelligence could devise and put in operation, having in mind the practical operation of a railroad, and having in mind the purpose which the law has, to get stock to market within the time mentioned, having in mind the movement of trains, the keeping of a railroad open, what human ingenuity could devise, in so far as human intelligence goes, having the benefit of experience, in the way of safeguards and in the way of provision to get stock from origin to destination within the period of this statutory limit, the railroad company has to do. Of course it is not the law that a railway company may lay out a slow schedule over a long distance and then if just before they get in to destination something happens for which they were not prepared or equipped, merely because if that thing had not happened they might have skinned in within the thirty-six limit they are excused; that is not the law.' The statute must be construed with a view to carrying its humanitarian purpose into effect and the exception in favor of the carrier given proper latitude and enforced in the light of practical railroad conditions. Nothing indicates the running schedule was unduly slow; and the jury were improperly given to understand that, conceding matters were properly handled when accidents occurred at Proviso and Brighton Park, they might nevertheless decide the railroad could have got the car to destination within thirty-six hours if due diligence had been exercised in laying out such schedule. The definition of 'due diligence' in the charge was too exacting and misleading. As applied to the facts due diligence did not require, as the court declared, that 'whatever ingenuity, that is to say whatever human intelligence could devise and put in operation, having in mind the practical operation of a railroad, and having in mind the purpose which the law has, to get stock to market within the time mentioned, having in mind the movement of trains, the keeping of a railroad open, what human ingenuity could devise, in so far as human intelligence goes, having the benefit of experience, in the way of safeguards and in the way of provision to get stock from origin to destination within the period of this statutory limit, the railroad company has to do.' We find nothing in the act indicating a purpose to interfere directly with the carrier's discretion in establishing schedules for trains; the design was to fix a limit beyond which animals must not be confined, whatever the schedule, except under the extraordinary circumstances stated. In general, unloading can only take place at specially prepared places or final destination. If in the exercise of ordinary care prudence and foresight the carrier reasonably expects that following the determined schedule the containing car will reach destination or some unloading place within the prescribed time it properly may be put in transit. Thereafter the duty is on the carrier to exercise the diligence and foresight which prudent men, experienced in such matters, would adopt to prevent accidents and delays and to overcome the effect of any which may happen—with an honest purpose always to secure unloading within the lawful period. If, notwithstanding all this, unloading is actually prevented by storm or accident the reasonable delay must be excused. In the Hours of Service Act, 34 Stat. 1415, 1416 (Comp. St. 1916, § 8679), there is a previso: 'That the provisions of this act shall not apply in any case of casualty or unavoidable accident or the act of God; nor where the delay was the result of a cause not known to the carrier or its officer or agent in charge of such employe at the time said employe left a terminal, and which could not have been foreseen. * * *' Construing this, in Atchison, T. & S. F. Ry. Co. v. United States, 244 U. S. 336, 343, 37 Sup. Ct. 635, 637 (61 L. Ed. 1175), we said: 'It was not the intention of the proviso, as we read it, to relieve the carrier from the exercise of diligence to comply with the general provisions of the act, but only to relieve it from accidents arising from unknown causes which necessarily entailed overtime employment and service. United States v. Dickson, 15 Pet. 141 [10 L. Ed. 689]. It is still the duty of the carrier to do all reasonably within its power to limit the hours of service in accordance with the requirements of the law.' This general principle should also be followed in construing and applying the provision of the statute here under consideration. The judgment below is reversed and the cause remanded to the District Court for further proceedings in accordance with this opinion. Reversed and remanded.

246.US.610

Where a contract for the manufacture of guns for the United States provided for a preliminary test subject to the decision of the Chief of Ordnance and the Secretary of War, those officials were to decide, not arbitrarily, but candidly and reasonably, whether the test had been satisfied. The findings of fact justify the conclusion that the test gun did not meet the contract requirements; the report of the Chief of Ordnance viewed as a whole in the light of the circumstances is consistent with this conclusion; there is no ground for the charge that the Chief of Ordnance and the Secretary of War, in annulling the contract, acted in bad faith or under gross mistake, or for holding that the Government by delays injurious to the contractors waived the right to annul. 51 Ct. ClIms. 22, affirmed. T m case is stated in the opinion.

This is an appeal to review a judgment by the Court of Claims in favor of the government, on a claim for damages growing out of a written contract dated May 18, 1898, for the manufacture of 50 wire-wound rapid fire guns, 25 of 5-inch caliber and 25 of 6-inch caliber. No guns having been delivered under the contract, it was annulled by the Chief of Ordinace, with the approval of the Secretary of War in an order, notice of which was given to the claimants on January 17, 1901. The appellant is the administrator of the survivor of one of two claimants, to whom we shall refer in this opinion as 'the claimants.' The essential parts of the contract to be considered are as follows: 'The muzzle velocity shall not be less than 2,600 f. s. with a good smokeless powder that shall not give a pressure of over 40,000 pounds per square inch, using a projectile of 55 pounds weight for the 5-inch gun and 100 pounds weight for the 6-inch gun. * * * The system of rapid-fire breech mechanism employed will be either the Brown or Dashiell, and must meet with the approval of the Ordnance Department. * * * It must permit of being easily and conveniently operated, and permit the same man to traverse, elevate, sight and fire, without moving the eye from the sight. * * * The first gun manufactured will be fired with full service charges of powder, such as that used in testing other rapid fire guns of similar caliber, and with not more than the regular service pressure for ordnance, and the gun must be fired for endurance 3 0 rounds or less as rapidly as practicable at the proving grounds of the manufacturers, commencing as soon as the gun is completed and continue firing as the Department may require, 5 rounds to be fired with pressure of about 45,000 pounds, and shall not exceed 50,000 pounds, these to be included in but at the close of the test, and the acceptance of the remainder of the same caliber will depend upon the type gun passing its test satisfactorily. * * * 'Both gun and carriage must endure these tests in all respects satisfactorily, both as to the strength of material and facility of operation. * * * 'It is stipulated and agreed that the party of the first part shall deliver for test the first complete gun with mount, etc., within three months from the date of execution of this contract. * * * 'If any doubts or disputes arise as to the meaning of anything in this or any of the papers hereunto attached, and forming this contract, the matter shall be at once referred to the Chief of Ordnance, U. S. Army, for determination. If, however, the party of the first part shall feel aggrieved at any decision of the Chief of Ordnance, it shall have the right to submit the same to the Secretary of War, and his decision shall be final.' '(5) If any default shall be made by the parties of the first part in delivering all or any of the guns, etc., mentioned in this contract, of the quality and at the times and places herein specified, then, in that case, the said party of the second part may supply the deficiency by purchase in open market or otherwise (the articles so procured to be of the kind herein specified as near as practicable), and the said parties of the first part shall be charged with the expense resulting from such failure. Nothing contained in this stipulation shall be construed to prevent the Chief of Ordnance, at his option, upon the happening of any such default, from declaring this contract to be thereafter null and void, without affecting the right of the United States to recover for defaults which may have occurred.' It is apparent from these excerpts that the contract contemplates the making and testing of a 'type gun' of each caliber; that the acceptance of additional guns was dependent on this one 'passing its test satisfactorily,' and that the Chief of Ordnance and his superior officer, the Secretary of War, were to decide, not arbitrarily, but candidly and reasonably, whether the gun had satisfied the required test. Ripley v. United States, 223 U. S. 695, 701, 702, 32 Sup. Ct. 352, 56 L. Ed. 614. The 5-inch test gun was to have been completed within three months from the date of the contract, but there were delays, assented to by the government, such that it was not completed for ten months, so that the first test began on March 8th of the following year (1899). The finding by the Court of Claims as to what occurred during this firing test, to which the type gun of 5-inch caliber was subjected, is as follows: 'The test firing began with a pressure of 18,000 pounds per square inch, which was raised on the second round to 21,050 pounds, and on the third round to 32,800 pounds, with a muzzle velocity of 2,705 feet per second, and on the fourth round to 35,750 pounds pressure, with a muzzle velocity of 2,821 feet per second, on which round the carriage was injured, it not being strong enough to stand such high muzzle velocities. 'The claimants then protested against the increases made in the powder charge and insisted that any charge that was sufficient to produce a muzzle velocity of 2,600 feet per second was all that was required by the contract, except for the five high-pressure rounds required at the close of the test. This question was submitted to the Chief of Ordnance before firing was continued and by him decided in favor of the claimants. Thereafter the powder charge was so adapted as to give this muzzle velocity of 2,600 feet per second as a general rule, except in the said five high-pressure rounds at the clo e of the test, which were fired with pressures of between 45,000 and 50,000 pounds per square inch.On one of these high-pressure rounds, the 293d round, the breach bushing and jacket of the gun were cracked and the breech could not be opened by hand. 'These breaks were repaired, but the mechanism repaired did not operate satisfactorily thereafter. 'During the course of the test the gun was star-gauged by the government inspector about every 50 rounds, and these gaugings, at different times throughout the tests and at different points in the bore, indicated varying and shifting changes, both increases and decreases, in the diameters of different cross-sections of the bore, the gauging at several times and places indicating a reduction of the normal diameter of 5 inches down to 4.99 inches; and as a precaution against the danger of rupture or explosion of the gun by a reduction of the bore sufficient to cause the projectile to stick in the bore when the gun was fired an iron plug of the diameter of the projectile was passed through the bore about every 10 or 12 rounds, on one of which occasions, about the 100th round, it stuck in the bore so tight at one point as to require the efforts of three men to force it through with a pole. 'At all times, with this exception, the plug passed through freely. 'These reductions and variations in the diameter of the bore of the gun were to some extent due to deposits of metal on the walls of the bore by abrasion from the projectile in its passage from the gun, but were principally due to changes in the cross section of the bore from a round to an elliptical form, resulting from a shifting of the segments enveloping the liner tube by the explosion of the charge, and also to an actual contraction of the bore by the compression of the liner tube forming the walls of the bore by the elastic tension of the wire with which the tube and its enveloping segments were wound and bound together, which tension, with the further increase therein resulting from the explosion of the charge upon reaction after the explosion, exercised a compressing effect upon the liner tube. 'In large guns of ordinary types of construction there is usually a slight contraction of bore during the first few rounds of firing, after which the gun settles down to a new condition, and thereafter the changes of bore diameter in a normal gun are almost entirely in the way of increase of diameter from erosion and abrasion. 'While the variations and reductions in the diameter of the bore of the type gun indicated by the star gauging during the firing test did not quite reach a point of actual danger to the gun from rupture or explosion by sticking of the projectile in the bore in the process of firing they did reach the limit of safety in this respect, and created a reasonable apprehension of danger in the minds of the Chief of Ordnance and other officials of the War Department connected with the execution of the contract for the guns, and caused the Chief of Ordnance and the Secretary of War to refuse to pass and accept the type gun unless it should satisfactorily pass a further test of 100 additional rounds as proposed and recommended by the Chief of Ordnance in his indorsement of November 3, 1899, hereinafter set forth. This apprehension was heightened by the fact of the new and comparatively untried type of construction of the gun, and by its reversal of the usual behavior of guns of the ordinary types of construction in the way of its continued contractions and changes of bore in the course of extended use.' These findings of fact, which under the circumstances of this case, must be accepted as final (United States v. New York Indians, 173 U. S. 464, 470, 19 Sup. Ct. 464, 43 L. Ed. 769; Cramp v. United States, 239 U. S. 221, 36 Sup. Ct. 70, 60 L. Ed. 238), if considered independently of the report* of the Chief of Ordnance, yet to be discussed, obviously justify the conclusion that the test gun did not meet the cont act requirements. The carriage of this new and experimental type gun failed on the fourth round of firing, with a pressure well within the contract maximum; the gun itself developed such cracks in the breach bushing and jacket that the breech could not be opened by hand and did not work satisfactorily after repairs were made; and it showed unusual and abnormal changes in the bore which, while not resulting in an explosion, created, in the mind of the Chief of Ordnance, a reasonable apprehension of danger in the use of the gun, and in his judgment required that it be modified and that it be subjected to an additional firing test, before it could be accepted as having satisfactorily passed the test prescribed by the contract. The report of the Chief of Ordinance to the Secretary of War on the result of this contract test is dated November 3, 1899, and is as follows: 'In the opinion of this office, while the type 5-inch gun is not deemed as satisfactory a gun as is desirable for service, yet its test has apparently met the contract requirements, and if certain modifications in the gun and its carriage shall be made in their further manufacture to remedy defects developed in the test, and in other respects be made to meet more fully the requirements of the department, to which propositions the company willingly agrees, it is recommended that the 5-inch type gun and its mount be accepted, subject, however, to the condition that, in view of the moderate pressure to which this gun has been subjected, the department fire it 100 additional rounds, or less, as it may deem expedient, with charges giving higher pressures and assimilating more nearly the pressures that would be experienced in actual service, and that in the further manufacture of the guns they shall be modified, at the expense of the company, so as to remedy any further defects that may be developed in these additional firings.' The claimant's contention is rested largely upon this clause in the above paragraph, viz.: 'Yet its test has apparently met the contract requirements.' And their argument is that the test which the gun must meet was prescribed by the contract; that the facts found, and especially this clause, show that it proved equal to the required test; that the subsequent annulling of the contract by the Chief of Ordnance, with the approval of the Secretary of War 'was not made and taken in good faith, but under a mistake so gross as to justify an inference of bad faith,' and that, therefore, the claimants are entitled to recover the damages prayed for. If this expression, so much relied upon, stood as the unqualified conclusion of the Chief of Ordnance and had been approved by the Secretary of War, the interpretation claimed for it might be justified, but the contextual setting of the clause shows clearly that in the opinion of the Chief of Ordnance 'defects [had] developed in the test,' which could be remedied only if certain modifications were made in the manufacture of both the gun and carriage, and that his understanding when making the report was that the claimants concurred in this conclusion and willingly agreed to conform to it. The clause of the report so emphasized is the expression of a soldier, not of a technical lawyer, and the paragraph of the report in which it is found, taken altogether, conveys to us the conviction that the Chief of Ordnance, while concluding that the gun was defective in design and construction, nevertheless believed that it contained elements of invention which, modified and improved, would make of it a weapon of value to his country and that he was eager to lend official assistance to its further development, which he believed the claimants were equally eager to receive and profit by. In the interpretation most favorable to the claimants the report is an acceptance conditioned upon development and improvement of the gun which the Chief of Ordnance thought possible, but which conditions, as we shall see, the claima ts, perhaps because of less confidence in their invention, never attempted to satisfy. On January 31, 1900, this report of the Chief of Ordinance was approved by the Secretary of War and a week later the decision and recommendation thus approved were communicated to the claimants. But, instead of the co-operation which the Chief of Ordnance thought assured, the government next heard from the claimants through lawyers and then through a letter from the claimants themselves, asking the Secretary of War to suspend further action until argument could be heard, and stating that 'they had not as yet assented to any modification of the gun or carriage.' The Secretary of War replied to the lawyers that there was no question before him open to argument, but what, if any, reply was made to the letter of the claimants does not appear. However, long prior to this, on May 18, 1899, after the test firing had been suspended and three months before it was completed, it was suggested by the government to the claimants that they should furnish 'the mathematical computations and engineering considerations upon which their claim of strength of construction and other qualities of their gun were based.' No notice was taken of this suggestion for almost a year, and not until after claimants were officially notified of the approval by the Secretary of War of the report of the Chief of Ordnance of November 3, 1899. Thereafter, on February 17, 1900, the claimants notified the Chief of Ordnance that they had employed two expert mathematicians to work out the various problems connected with the construction of their gun, and suggesting that they would like to have 'an army officer of practical experience with artillery' assigned to co-operate with their selected experts and that they would compensate him for the service. Two days later the government acceded to this and authorized a major in the army to join in making the computations as auggested by the claimants. The finding of the Court of Claims does not show that anything further was done until, on January 17, 1901, almost three years after this three months' contract was to have been completed, when, after the claimants had permitted almost a year to pass without accepting the suggestion of the government that modifications should be made in the gun and carriage to cure the defects which the firing test had disclosed, the Chief of Ordnance, with the approval of the Secretary of War notified the claimants that, for failure to deliver an acceptable gun, their contract had been declared null and void. Against this conclusion the claimants protested and appealed to the Secretary of War for a revocation of the annullment order, but after hearing the claimants and their lawyers several times, the Secretary of War refused to revoke this order. A month after the revocation order, the experts, employed almost a year before by the claimants, rendered to their employers a report on the technical problems connected with the construction of the gun, which the government had called for almost two years before. This report the Court of Claims finds was 'upon the whole, favorable to the style of construction of the gun; but defects of construction were pointed out and remedies therefor suggested in the way of modifications in the construction.' This discussion of the findings of fact by the Court of Claims leads us unhesitatingly to the conclusion that the claim that the Secretary of War and the Chief of Ordnance acted in had faith or under a gross mistake is wholly unfounded and gratuitous; that, on the contrary, they dealt candidly, generously, even helpfully, with the claimants, and that the annullment of the contract under the circumstances was abundantly justified. The cause of the misfortune, which the claimants undoubtedly suffered, is not to be found in their treatment by the officials of the War Department but in their own refusal, from whatever cause, to accept the encouraging suggestion of the Chief of Ordn nce that the Department was willing, by generous dealing and co-operation, to assist them in carrying forward their experimental gun to a successful development. [4] The claims made in argument that by various delays on its part the government, in some indefinite way, waived its right to annul the contract, and that this right to annul was suspended until report should be made on the technical problems involved, by the experts selected by the claimants, it is true with the co-operation of the government, but almost a year before, cannot be seriously considered. In the matter of delays the claimants were as much at fault and more, than the government, and the delay of the technical report for almost a year was reasonable ground for assuming that no report was likely to be made, or that if made it would not be favorable to the acceptance of the gun, which last, as we have seen, is shown by the finding of facts by the Court of Claims, to have been proved to be the case. The judgment of the Court of Claims must be Affirmed.

246.US.353

Liability over is the reason for a bailee's right to recover the full value of the goods,-a reason which, whatever its inadequacy in history or theory as applied to torts, applies with real force to contract relations like those in this case. A transportation company, holding itself out as a common carrier by sea, received consignments of goods, fixed and collected the freight, loaded the goods on a vessel which it chartered for their carriage, and issued bills of lading to the shippers signed by the master or agents of the vessel. The vessel proved unseaworthy and the cargo was lost. Held, that the company was liable over to the owners of the cargo and by subrogation to the insurers, and could recover its full value from the vessel owners under their express warranty of seaworthiness, in the charter party, even if technically the possession of the cargo was with the vessel owners. The Act of June 26,1884, c. 121, 23 Stat. 57, does not limit the liability of a ship owner upon his personal warranty of seaworthiness. A charter party, containing a warranty of seaworthiness, purported to be entered into by a firm as agents of the vessel, but was signed in the firm name by one of its members who was part owner. Held, that the warranty was his personal contract. An owner is liable on his express warranty of seaworthiness whether to blame for the breach or not. 217 Fed. Rep. 497, affirmed. Tmi case is stated in the opinion.

This is a libel brought by the Benner Line against the Pendleton brothers upon a charter party purporting to be made between 'Pendleton Bros., agents of the schooner, 'Edith Olcott" and the libelant, and signed 'Pendleton Brothers.' The ground of the suit is that the vessel was unseaworthy at the beginning of the voyage and that by reason thereof she sank and her entire cargo was lost. Both Courts below held that the unseaworthiness was proved, and on the evidence that question may be laid on one side. As one of the Pendleton brothers was not interested in the vessel he was dismissed from the suit without objection. The other, the petitioner, who signed the firm name, being a part owner, was held by the District Court to be bound by the warranty of seaworthiness contained in the contract, but entitled to the statutory limitation of liability. Act of June 26, 1884, c. 121, § 18, 23 Stat. 57 (Comp. St. 1916, § 8028); 210 Fed. 67. The Circuit Court of Appeals held that the statute did not cover the case. 217 Fed. 497, 133 C. C. A. 349. A decree was entered against the petitioner for the total loss. Both Courts agreed that the Benner Line although owning none of the cargo was entitled to sue for the loss of it and this proposition and the matter of the applicability of the Act of 1884 are the two questions argued here. The ground on which the right of the Benner Line to recover the value of the cargo is denied is that the anomalous doctrine by which a bailee can recover the value of goods that he does not own (The Beaconsfield, 158 U. S. 503, 507, 15 Sup. Ct. 860, 39 L. Ed. 993), stands on the bailment, and that here there was no bailment to the Benner Line. The charter party provides that bills of lading be signed without prejudice to the charter. The bills of lading were signed by the master or agents of the vessel (the Benner Line), and, it is contended, bound only the vessel. The charter was not a demise of the ship, and it may be assumed, as the bill of lading seems to assume, that the technical possession of the goods was in the ship owners, since they remained in possession of the ship. The Benner Line has not paid or been called upon to pay anything to the owners of the cargo, but brings this suit at the request of the underwriters on the same, who have paid for the loss. But as was observed by the Courts below, the Benner Line held itself out to the public as a common carrier, solicited and received the merchandise that it offered to transport by acceptance of such merchandise contracted to be answerable for the transportation, chartered the vessels to carry what it received, employed the stevedores who put it aboard, ixed and received the freight and signed or had the bills of lading signed in its office. It determined the vessel on which the cargo should go as against the owners of it or of the ship. The cargo went in the space it had hired. We agree with the lower Courts that the Benner Line did not disappear from its contract to carry the goods when the bills of lading were signed and that it would have been answerable to the owners, or to the insurance companies when they became subrogated to the owners rights, if they had elected to sue it. The owners of the vessel had warranted the seaworthiness of the ship to the charterer, of course in contemplation that a cargo would be shipped as to which they would be liable in some form. Wherever in theory of law the technical possession may have been, we do not perceive why the charterer should be denied full damages upon the express contract when its liability over also was determined by contract exactly as was expected. The ground upon which bailees have been allowed to recover the full value of goods from wrongdoers has been stated for centuries to be their liability over. Y. B. 9 Ed. IV, 34, pl. 9, is an example of what has been repeated from that day to this. See Brewster v. Warner, 136 Mass. 57, 59, 49 Am. Rep. 5. Whatever may be the inadequacy, in history or theory, of the reason as applied to torts, it applies with real force to contract relations like those in this case. The whole question is hardly more than technical as there is no doubt that this suit really represents the owners' interests since it is brought at the request of the insurers who have paid the loss. [2] On the proposition that the petitioner is entitled to limit his liability under the act of 1884 it is urged that the act is an absolute limit, irrespective of privity or knowledge, in regard to contracts as well as torts, and that this contract, if it bound the petitioner at all, did so only as an indirect result of its execution. The last point hardly is intelligible. The petitioner signed the charter with the name Pendleton Brothers, which included himself, and apart from the fact that although described as agents the Pendleton brothers purport to be contracting parties, if we look only to the principals the petitioner was one of them as part owner of the vessel. The contract was between human beings and the petitioner by his own act knowingly made himself a party to an express undertaking for the seaworthiness of the ship. That the statute does not limit liability for the personal acts of the owners done with knowledge is established by Richardson v. Harmon, 222 U. S. 96, 32 Sup. Ct. 27, 56 L. Ed. 110. It was said in that case, 222 U. S. 106, 32 Sup. Ct. 27, 56 L. ed. 110, that section 18 leaves the owner 'liable for his own fault, neglect and contracts.' The principle was held to apply to contracts less personal than this in Great Lakes Towing Co. v. Mill Transportation Co., 155 Fed. 11, 83 C. C. A. 607, 22 L. R. A. (N. S.) 769, and in The Loyal, 204 Fed. 930, 123 C. C. A. 252. We are not disposed to disturb the very strong and deliberate intimations of Richardson v. Harmon in their application to the present case. It is said that the owners did their best to make the vessel seaworthy and that if it was not so the failure was wholly without the privity or knowledge of the petitioner. But that is not the material question in the case of a warranty. Unless the petitioner can be discharged from his contract altogether he must answer for the breach whether he was to blame for it or not. Decree affirmed.

244.US.336

The Hours of Service Act of March 4, 1907, 34 Stat. 1415, is remedial, passed to protect both public and employees from the dangers arising from overwork in railway employment, and should be construed, in effectuation of this purpose, as requiring the carrier to do all reasonably within its power to confine the houts of service within the limits stated. It was the intention of the proviso in § 3, not to relieve the carrier-from a diligent effort to avoid exceeding the limits of service which the act specifies, but only to afford relief in cases where service beyond those limits is necessarily entailed by the causes mentioned in the proviso. If, as the result of delay due to unavoidable accident, a train crew will not be able to take the train to the terminal of their normal run without serving beyond the time limit prescribed by the act, it becomes the carrier's duty to prevent such excessive service by substituting a fresh crew whenever, in the exercise of all reasonable diligence, it is able to do so. 220 Fed. Rep. 748, affirmed.

The United States brought an action in the district court of the United States for the southern district of California, southern division, against the Atchison, Topeka, & Santa Fe Railway Company to recover the sum of $1,500 for three alleged violations of the Hours of Service Act of March 4, 1907 (34 Stat. at L. 1415, 1416, chap. 2939, Comp. Stat. 1916, §§ 8678, 8679), the relevant parts of which are as follows: 'Sec. 2. That it shall be unlawful for any common carrier, its officers or agents, subject to this act to require or permit any employee subject to this act to be or remain on duty for a longer period than sixteen consecutive hours, and whenever any such employee of such common carrier shall have been continuously on duty for sixteen hours he shall be relieved and not required or permitted again to go on duty until he has had at least ten consecutive hours off duty; and no such employee who has been on duty sixteen hours in the aggregate in any twenty-four-hour period shall be required or permitted to continue or again go on duty without having had at least eight consecutive hours off duty: . . . 'Sec. 3. . . . Provided, That the provisions of this act shall not apply in any case of casualty or unavoidable accident or the act of God; nor where the delay was the result of a cause not known to the carrier or its officer or agent in charge of such employee at the time said employee left a terminal, and which could not have been foreseen. . . .' From the stipulated facts the following appears: That the Atchison, Topeka, & Santa Fe Railway Company is a corporation duly organized and existing under the laws of Kansas, and was at the times mentioned in the complaint a common carrier engaged in interstate commerce by rail. That at the times mentioned in the petition this railway company operated a certain interstate passenger train from Los Angeles, California, to Phoenix, Arizona, known as train No. 18, and a similar train from Phoenix to Los Angeles, known as train No. 17. That this latter train customarily, and on the dates in question, moved from Phoenix to Parker, Arizona, in charge of train and engine crews, which crews were changed at Parker, where there was attached to the train an engine in charge of a crew which ran from Parker to Barstow, California, a distance of 183.5 miles. That at Parker train No. 17 was taken in charge of and handled from that point to Los Angeles, a distance of 335.3 miles, by a passenger train crew, consisting of a conductor and two brakemen, who were the employees of the railroad company mentioned in the complaint. That the terminals for the passenger train crews engaged in the operation of trains Nos. 17 and 18 are Los Angeles and Parker. That the employees described in the complaint resided and had their homes in Los Angeles, from which point they customarily left for Parker in charge of train No. 18, which arrived at Parker at or about 1:15 o'clock A. M., whereupon they were relieved until 10:40 o'clock P. M., on the same day. That during the interval they were permitted to enjoy the accommodations for rest at Parker, which was their 'away-fromhome terminal.' That at 10:40 o'clock P. M. they reported for the return trip to Los Angeles on train No. 17, and customarily reached Los Angeles at or about 10:15 o'clock A. M. on the next day, from which time until 10:30 o'clock P. M. on the following day they were not on duty, and during that time they were permitted to repair to and remain at their respective homes in Los Angeles, which was their 'home terminal.' That on October 2d and 3d, 1912, passenger train No. 17 was operated between Parker and Los Angeles by the employees named in the complaint, and that they were compelled to be and remain on duty in connection with the movement of that train from 10:40 o'clock P. M. on October 2d, until 8:25 o'clock P. M. on October 3d, under the circumstances hereinafter set forth. That the employees named reported for duty at Parker, at 10:40 o'clock P. M. on October 2d, and at 11:10 o'clock P. M. departed from Parker in charge of train No. 17, which arrived at Barstow, California, at 7:10 o'clock A. M. on October 3d, having been delayed for a period of two hours and thirty minutes on account of washouts, the cause of this delay not being known to the defendant, or to any of its officers or agents in charge of the employees at the time they left Parker, and incapable of being foreseen. That train No. 17 was scheduled to leave Barstow, at 4:45 o'clock A. M. on October 3d, but by reason of the delay in reaching Barstow it actually left that point at 7:45 o'clock A. M., with ample time then remaining to reach Los Angeles within less than sixteen hours after the conductor and brakemen entered upon their service, but at 8:30 o'clock, and while the train was being operated between Barstow and San Bernardino, California, an axle broke under the tank of the engine, whereby the movement of the train was necessarily and unavoidably delayed for a period of six hours and ten minutes, with the result that instead of reaching San Bernardino at 7:35 o'clock A. M., according to its usual schedule, or at 10:35 o'clock A. M., as it would have done but for the delays in reaching and leaving Barstow, it actually arrived at San Bernardino at 5:30 o'clock P. M., and that instead of reaching Los Angeles at 10:15 o'clock A. M., in accordance with its usual schedule, or at 1:16 o'clock P. M., as it would have done but for the delays in reaching and leaving Barstow had there been no further delays, it actully reached Los Angeles at 8:25 o'clock P. M. on October 3d, the employees having been on duty for twenty-one hours and forty-five minutes. That the breaking of the axle whereby the train was delayed for six hours and ten minutes was a casualty and an unavoidable accident, and the delay to the train caused thereby was the result of causes not known to defendant, or to any of its officers or agents in charge at the time the employees left Parker, and which could not have been foreseen. That train No. 17, after having been delayed in reaching and leaving Barstow, and after having been delayed six hours and ten minutes by the broken axle, proceeded to Los Angeles in charge of the employees who were in charge when it left Parker, and that in going to Los Angeles the train and employees passed through the station of San Bernardino, California, which is a point known and designated as a division terminal, and which was a place appointed and customarily used as a terminal from and to which crews of certain other passenger and freight trains of the defendant brought their trains, but which was not a terminal for train crews in charge of trains Nos. 17 and 18, or of any other trains operating between Parker and Los Angeles. That at and previous to the time the employees in charge of train No. 17 had been continuously on duty for a period of sixteen hours, defendant had in its employ at Los Angeles and also at San Bernardino passenger train crews which were customarily assigned to other passenger trains, and crews which were subject to call which were customarily used in operating freight trains, who were qualified, should necessity require, to operate passenger trains between San Bernardino and Los Angeles. That the employees in charge of train No. 17 could have been relieved at San Bernardino and the train placed in charge of one of such other freight or passenger train crews at a time which would have permitted the employees in charge of train No. 17 to 'deadhead' from San Bernardino to Los Angeles on that train without performing any service. That before the delay of six hours and ten minutes which resulted from the broken axle had expired, and before the damage which had caused such delay had been repaired, and before the train left the point where the damage occurred, it was known to the defendant and its officers and agents that such employees would have been on duty in excess of sixteen hours by the time they reached San Bernardino, but that no effort was made to relieve them before they had been on duty continuously in excess of sixteen hours, either previous to or at the time of their arrival at San Bernardino, or at any time before they reached Los Angeles. That it is commonly understood by railroad men with a knowledge of the practical operation of trains that the word 'terminal' has reference to certain train or trains or certain crew or crews, and means the beginning or the end of the employee's run, or the point at which, in the regular course of business, he would go on duty as a member of a particular crew, or at which, in the regular course of business, he would cease to be a member of such crew of a particular train and be relieved from duty. Judgment was rendered in the sum of $100 upon each cause of action against the railroad company. Upon proceedings in error, this judgment was affirmed by the United States circuit court of appeals for the ninth circuit (136 C. C. A. 354, 220 Fed. 748), and a writ of certiorari brings the case here. It is the contention of the railroad company that the detention in service beyond the period prescribed by the statute being due to an unavoidable accident, the limitation of the statute for that trip was at an end and the company was not liable for the penalty imposed because of the extra service required upon that trip. On the other hand, the government insists that, in view of the prime purpose of the statute to limit the hours of service so as to keep within the time prescribed, and not to subject the men to service beyond these hours, it was the company's duty to relieve the crew at San Bernardino by supplying their places with others instead of keeping them on duty to Los Angeles, thereby requiring service in excess of that permitted by the statute. Considering these opposing contentions, it must be remembered that the purpose of the act was to prevent the dangers which must necessarily arise to the employee and to the public from continuing men in a dangerous and hazardous business for periods so long as to render them unfit to give that service which is essential to the protection of themselves and those intrusted to their care. It is common knowledge that the enactment of this legislation was induced by reason of the many casualties in railroad transportation which resulted from requiring the discharge of arduous duties by tired and exhausted men whose power of service and energy had been so weakened by overwork as to render them inattentive to duty, or incapable of discharging the responsible labors of their positions. To promote the end in view, so essential to public and private welfare, Congress, in this Hours of Service Act, provided the limitations named upon the hours of service. The act is remedial and in the public interest, and should be construed in the light of its humane purpose. Congress also realized that it might be impracticable in all cases to keep the employment within the hours fixed in the act, and added a proviso to relieve from the general application of the requirements of the law so that it might not apply when the employment beyond the periods named was caused by casualty or unavoidable accident or the act of God, or where the delay was the result of a cause not known to the carrier or its officer or agent at the time the employee left a terminal, and which could not have been foreseen. It was not the intention of the proviso, as we read it, to relieve the carrier from the exercise of diligence to comply with the general provisions of the act, but only to relieve it from accidents arising from unknown causes which necessarily entailed overtime employment and service. United States v. Dickson, 15 Pet. 141, 10 L. ed. 689. It is still the duty of the carrier to do all reasonably within its power to limit the hours of service in accordance with the requirements of the law. Applying this view to the present case, it was the duty of the company, after the breakdown between Barstow and San Bernardino, to use all reasonable diligence to avoid the consequences of the unavoidable accidents which had delayed the movement of the train and to relieve the crew by the means practically at hand. This the company might have done by putting on a relief crew at San Bernardino instead of permitting an already exhausted crew, when their condition is judged by the service performed, to hazard their own lives and safety as well as the safety of others by continuing the journey to Los Angeles. The requirement of continued service after the train reached San Bernardino was not occasioned by the unforeseen accidents, but was the direct consequence of the failure of the company to relieve the employees by the substitution of a fresh crew, as the record shows could readily have been done. It is contended by the company that this construction of the statute is opposed to that given by the Interstate Commerce Commission, the body intrusted by Congress with the enforcement of the act, and is against the understanding of the law which the Commission had given the company to believe would be enforced. It appears that two constructions of the act have been given by the Interstate Commerce Commission; one on March 16, 1908, as follows: 'The instances in which the act will not apply include only such occurrences as could not be guarded against; those which involved no neglect or lack of precaution on the part of the carrier, its agents or officers; and they serve to waive the application of the law to employees on trains only until such employees, so delayed, reach a terminal or relay point.' This construction would plainly require the railroad company to have substituted a new crew at San Bernardino and not to require the further service to Los Angeles. The other construction, and the one which the company contends should be controlling, was given later, on May 24, 1908, and is as follows: 'Section 3 of the law provides that 'the provisions of this act shall not apply in any case of casualty or unavoidable accident or act of God; nor where the delay was the result of a cause not known to the carrier or its officer or agent in charge of such employee at the time said employee left a terminal, and which could not have been foreseen.' 'Any employee so delayed may therefore continue on duty to the terminal or end of that run. The proviso removes the application of the law to that trip. (See Rule 287.)' These possibly diverse rulings of the Commission were rescinded on April 9, 1917, by the following order of the Commission: 'Conference Rulings 88 (b) and 287 (i), relating to the Hours of Service Law, rescinded, for the reason that they were issued as informal expressions of the Commission's views to act as guides until the questions could be judicially interpreted, and they having been judicially interpreted and are now before the court on appeal, there is no further occasion for these former views of the Commission.' If the construction contended for by the company be adopted, it would follow that the employees might be kept in service for indefinite periods, until the termination or end of the run should be reached, which it is not difficult to suppose might require many hours of service beyond the limitations prescribed in the body of the act. This construction would defeat the purpose of the act by permitting the employees to endanger themselves and the public by the continued service of tired and exhausted men. We reach the conclusion that in keeping the crew in service beyond San Bernardino the company was guilty of a violation of the statute. We find no error in the judgment of the Circuit Court of Appeals, and the same is affirmed. Mr. Justice McReynolds took no part in the consideration or decision of this case.

244.US.183

An employee is not engaged in interstate commerce, within the xmeaning of the Federal Employers' Liability Act, when his work at the time of injury consists in placing cars owned by the carrier, containing its supply coal, upon an unloading .trestle within its yards, and when the interstate movement of the cars carrying the coal occurred as long as seventeen days previously and the cars, with the coal, in the meantime, have remained upon sidings and switches in the yards. Chicago, Burlington & Quincy R. R. Co. v. Harrington,2 41 U. S. 177. 214 N. Y. 116, reversed.

Basing his claim upon the Federal Employers' Liability Act, defendant in error sought damages for personal injuries. The New York court of appeals affirmed a judgment in his favor (214 N. Y. 116, 107 N. E. 814), and the question now presented is whether there is evidence tending to show that he was injured while engaging in interstate commerce. The accident occurred July 27, 1912, when, as member of a switching crew, he was assisting in placing three cars containing supply coal for plaintiff in error on an unloading trestle within its yards at Cortland, New York. These cars belonged to it, and with their contents had passed over its line from Sayre, Pennsylvania. After being received in the Cortland yards—one July 3 and two July 10—they remained there upon sidings and switches until removed to the trestle on the 27th. We think their interstate movement terminated before the cars left the sidings, and that while removing them the switching crew was not employed in interstate commerce. The essential facts in Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 177, 60 L. ed. 941, 36 Sup. Ct. Rep. 517, 11 N. C. C. A. 992, did not materially differ from those now presented. There we sustained a recovery by an employee, holding he was not engaged in interstate commerce; and that decision is in conflict with the conclusion of the Court of Appeals. The judgment under review must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed.

245.US.116

A court of bankruptcy has no jurisdiction over a suit in equity brought by the trustee of a bankrupt corporation in the State of the corporation's domicile, against a number of its shareholders there residing, for the purpose of collecting from, each an ascertained sum of money which by the terms of such shareholder's individual subscription contract had become unconditionally due and payable to the corporation at times specified and without regard to the obligations of other shareholders. Where the liabilities of the shareholders of a corporation to pay stock subscriptions are several, independent, and unconditional, and no issue with the corporation touching such liabilities is common to the shareholders, the remedy of the corporation, or its trustee in bankruptcy, is by action at law against each shareholder separately; the equitable jurisdiction to avoid multiplicity of actions does not arise merely because the claims are very numerous; and a single suit .by the corporation, or by its trustee in bankruptcy, against many of the shareholders, to collect their subscriptions, cannot be maintained on that ground. An order of the court of bankruptcy, calling for the payment of shareholders' subscriptions to a bankrupt corporation which, before and independently of the order, were ascertained and payable, adds nothing to the liabilities of the shareholders or to the rights of the trustee in bankruptcy, and cannot justify a single suit by the trustee against many of the shareholders to collect their subscriptions which, in the absence of the order, would not have been cognizable in equity; and neither can an order of the bankruptcy court directing the trustee "to institute a suit in equity" to make such collections confer such equitable jurisdiction. The amendment to § 47, clause (2) of subdivision a of the Bankruptcy Act, made by the Act of June 25, 1910, 36 Stat. 840, § 8, did not confer new means of collecting ordinary claims due the bankrupt. Where causes of action and citizenship of parties are such that a bankrupt, before bankruptcy, could have sued only in a state court, the bankruptcy court is without jurisdiction to enforce them at the suit of the trustee, even if as a matter of equity jurisdiction the trustee might join all causes in one bill to prevent a multiplicity of suits, while the bankrupt would have been obliged to sue upon each of them independently at law. Contested claims of a bankrupt corporation against persons alleged to be shareholders, for moneys alleged to be due and payable on subscriptions to the corporate stock, are not to be regarded as property in the possession of the trustee in bankruptcy for the purpose of determining whether the bankruptcy court has jurisdiction to enforce them; nor does the fact that sAch alleged debtors are shareholders of the corporation enable the trustee to sue them in that forum to collect their subscriptions. 238 Fed. Rep. 996, affirmed.

The Gibraltar Investment & Home Building Company, a California corporation with a capital stock of $2,000,000 divided into 20,000,000 shares of ten cents each, was adjudicated a bankrupt in the Southern district of that state. Its debts were about $150,000. Its assets consisted of amounts aggregating $480,921.25 unpaid and overdue on subscriptions to its stock. The subscription of each stockholder was contained in a separate contract which provided for payment unconditionally at specified dates. The court of bankruptcy found that a large majority of the subscribers were nonresidents of the district or were insolvent, and that the full amount due from resident solvent stockholders would be required to pay the claims of creditors and cost of administration. It ordered payment of all unpaid subscriptions and directed the trustee in bankruptcy 'to institute a suit in equity' to enforce collection thereof. Such a suit was brought in that court against Gill and about 3,000 other residents of the district. A motion to dismiss for want of jurisdiction was sustained; and a decree was entered dismissing the bill. Kelley v. Aarons (D. C.) 238 Fed. 996. The case comes here on appeal under section 238 of the Judicial Code (Comp. St. 1916, § 1215). The question presented is of importance in the administration of bankrupt corporations. To enable the trustee, by means of a single suit in the court of bankruptcy, to determine and enforce payment of all amounts due from stockholders would obviously promote the effective administration of the bankrupt estate; but the aggregate burden thereby cast upon the individual stockholders might be correspondingly heavy. Whether the right to choose the court and the place in which litigation shall proceed, should be conferred upon the trustee or upon the defendant, is a legislative question with which Congress has dealt in the Bankruptcy Act (1898, c. 541, 30 Stat. 544). Section 2, clause 7, confers upon the court of bankruptcy jurisdiction to 'cause the estates of bankrupts to be collected, reduced to money and distributed, and determine controversies in relation thereto, except as herein otherwise provided.' But section 23b prohibits the trustee (with exceptions not here applicable) from prosecuting, without the consent of the proposed defendant, a suit in a court other than that in which the bankrupt might have brought it, had bankruptcy not intervened.1 The corporation is a citizen of California. It could not have sued these stockholders except in the state courts. The court of bankruptcy was, therefore, without jurisdiction of this suit unless there is something either in the nature of the cause of action or in the relation of stockholders to a corporation or in the character of the suit which prevents the application of the prohibition contained in section 23b. The trustee seeks to sustain the jurisdiction on the ground: First: That the suit—a bill in equity against all resident stockholders—is not one which the corporation could have brought 'if proceedings in bankruptcy had not been instituted'; and that a right to bring it arises in the trustee under the amendment of 1910 to section 47, clause a (2).2 Second: That the suit is a proceeding concerning property in the actual or constructive possession of the trustee or the bankrupt.3 The cause of action sued on is the failure of the several stockholders to perform their several unconditional promises to pay definite amounts at fixed times which have elapsed. The amount payable by one is in no way dependent upon what is due from another. The corporation had a separate right against each alleged stockholder; and the remedy open to it was a separate action at law against each. The trustee rightly assumes that the corporation could not have brought a single suit in equity against all these stockholders, although a very large number of actions at law would be required to make collection of the balances unpaid on the stock. There was no common issue between these alleged stockholders and the corporation; and the liability of each would have presented a separate controversy unconnected with that of any other. Thus elements essential to jurisdiction in equity to avoid multiplicity of actions at law by the corporations were lacking. St. Louis, Iron Mountain & Southern Railway Co. v. McKnight, 244 U. S. 368, 375, 37 Sup. Ct. 611, 61 L. Ed. 1200.4 That lack is not supplied by the assignment to the trustee. No other property has become involved. No new issues have been raised. The order of the court of bankruptcy that subscriptions be paid up was not a condition precedent to the exictence of the causes of action against the several stockholders; and it added nothing to the rights which had already passed to the trustee. For him, also, the appropriate remedy was a separate action at law against each stockholder. The amendment of 1910 to section 47 of the Bankruptcy Act did not confer new means of collecting ordinary claims due the bankrupt; and the order directing the trustee 'to institute a suit in equity' was impotent to confer equity jurisdiction. But even if there had been equity jurisdiction, the suit could not have been brought in the federal court. The cause of action sued on would still have been the broken promise of the individual stockholder to pay the balance on his stock. That was a cause of action on which the bankrupt could have sued and sued only in the state court. The cause of action would remain the same, although equity, to avoid multiplicity of actions at law, undertook to deal with three thousand separate claims in a single suit. The mere fact that the bankrupt could not have brought the particular suit would not confer on the court of bankruptcy jurisdiction of the suit of the trustee. Bardes v. Hawarden Bank, 178 U. S. 524, 20 Sup. Ct. 1000, 44 L. Ed. 1175. Nor can the jurisdiction of the court of bankruptcy be maintained on the ground that this is a suit brought to determine a controversy coucerning property in the possession of the trustee. He had possession merely of contested claims against alleged stockholders. Many of the defendants may prove not to be stockholders. And even those confessedly stockholders are, in respect to the matters in controversy, as much strangers to the corporation and to the estate as any other person against whom the corporation had a cause of action. The fact that an alleged debtor of a corporation is a stockholder, or even an officer, does not enable the trustee to sue him in the court of bankruptcy. Park v. Cameron, 237 U. S. 616, 35 Sup. Ct. 719, 59 L. Ed. 1147. We have no occasion to consider whether a different rule applies in those cases where an order of the court of bankruptcy is a condition precedent to the existence of any liability, either because stockholders are liable only after a call, or because the liability of stockholders is pro rata and limited to such sums as may, in the aggregate, be necessary to satisfy the claims of creditors. Decree affirmed.

242.US.438

A transfer of property by an insolvent, made to secure a contemporaneous loan of money which the lender advances, and the insolvent obtains and uses, for the discharge of a preexisting debt of the insolvent to a third party, in which the lender has no interest, is not a preference of the lender within § 60b of the Bankruptcy Act, as amended February 5, 1903, 32 Stat. 797, 800. A transfer, the intent or obviously necessary effect of which is to deprive creditors of the benefits sought to be secured by the Bankruptcy Act, "hinders, delays, or defrauds creditors" within the meaning of § 67e. An insolvent borrowed money of a relative and secured it by a contemporaneous mortgage of all his property, which was recorded. The money was sought, advanced and used to satisfy one of his preexisting debts and thus cnable him to escape a criminal prosecution. Mortgagee and insolvent both knew of the insolvency, and the circumstances were such that both must, have anticipated the suspension of business and bankruptcy which followed the recording of the mortgage. Held, that these facts warranted the District Court and Circuit Court of Appeals in concluding that the ins6lvent intended to defraud his creditors within the meaning of § 67e and that the mortgagee was not a purchaser or lienor in good faith (§§ 67e, 67d). Van Iderstine v. National Discount Co., 227 U. S. 575, 582; Coder v. Arts, 213 U. S. 223, 244. A decree avoiding a transfer as fraudulent will not be disturbed upon the ground that it exceeds the pleadings where the bill, though attacking the transfer mainly as an unlawful preference, contains enough with the answer to present the issue of fraud, where that issue was fully tried., and the question of variance is first raised in this court. 212 Fed. Rep. 88, affirmed.

The Bankruptcy Act (as amended Feb. 5, 1903 [32 Stat. at L. 800, chap. 487, § 13, and Act June 25, 1910, 36 Stat. 842, c. 412, § 11, Comp. Stat. 1913, § 9644]) provides in § 60b that if a debtor has, within four months before the filing of the petition in bankruptcy, made a transfer which the person receiving the same has reason to believe was intended to give a preference, the transfer shall be voidable, and the trustee in bankruptcy may recover the property or its value. The act also provides in § 67e, 30 Stat. at L. 564, chap. 541, Comp. Stat. 1913, § 9651, that if a debtor, within four months before the filing of the petition in bankruptcy, makes any transfer 'with the intent and purpose on his part to hinder, delay or defraud his creditors, or any of them,' it shall be null and void except as to purchasers in good faith and for a present fair consideration; and that it shall be the duty of the trustee to recover the same. R. Crawley Jones was a farmer and owner of a country store. A bank, having discounted his notes bearing indorsements which it later concluded had been forged, demanded that Jones take up the notes. Fearing arrest, he appealed through his father to his brother-in-law, Dean, for a loan of $1,600, promising to secure it by a mortgage of all his property, which he represented was worth more than five times that amount. Dean provided the money, and on September 3, 1909, acting in conjunction with Jones's father, 'took up' the notes. Most of them were not yet due. A mortgage deed of trust dated September 3 was executed September 10, and recorded September 11. It covered practically all of Jones's property, including the stock in trade and accounts, store furnishings and fixtures, household furniture and goods, live stock, crops standing and cut, and the farm itself, the last subject to a prior deed of trust. Four mortgage notes were given, payable respectively in seven, thirty, sixty, and ninety days; with a proviso that upon default on any one all should become payable. The first note—and hence all—was overdue when the mortgage was recorded. On that day Dean directed that possession of the property be taken, which was done on September 13 (the 12th being Sunday). Jones was at the time deeply insolvent and had many unsecured creditors. Some of these immediately challenged the validity of the mortgage. Within a few days an involutary petition in bankruptcy was filed and Jones was adjudicated a bankrupt. The mortgaged property was converted into cash under an agreement with general creditors that it should be deposited to await the ultimate determination of the rights of the parties. It yielded only $1,634,—leaving nothing for the general creditors if the mortgage is held valid. Davis, the trustee in bankruptcy, brought a bill in equity to set aside the mortgage. The district court granted the relief prayed for; and its decree was affirmed by the circuit court of appeals. Both courts found the facts to be in substance as above stated and held the mortgage void under § 67e as having been made by Jones 'with the intent and purpose on his part to hinder, delay or defraud his creditors,' to one not a 'purchaser in good faith' within the meaning of the act. The circuit court of appeals held the mortgage void also as a preference under § 60b (128 C. C. A. 658, 212 Fed. 88). The case comes to this court upon appeal; Dean contending that the mortgage is not invalid under either § 60b or § 67e. The mortgage was not voidable as a preference under § 60b. Preference implies paying or securing a pre-existing debt of the person preferred. The mortgage was given to secure Dean for a substantially contemporary advance. The bank, not Dean, was preferred. The use of Dean's money to accomplish this purpose could not convert the transaction into a preferring of Dean, although he knew of the debtor's insolvency. Mere circuity of arrangement will not save a transfer which effects a preference from being invalid as such. National Bank v. National Herkimer County Bank, 225 U. S. 178, 184, 56 L. ed. 1042, 1046, 32 Sup. Ct. Rep. 633. But a transfer to a third person is invalid under this section as a preference only where that person was acting on behalf of the creditor, as in Re Beerman, 112 Fed. 663, and Walters v. Zimmerman, 208 Fed. 62, 136 C. C. A. 409, 220 Fed. 805. Here Dean acted on the debtor's behalf in providing the money and taking up the notes. But under § 67e the basis of invalidity is much broader. It covers every transfer made by the bankrupt 'within four months prior to the filing of the petition, with the intent and purpose on his part to hinder, delay or defraud his creditors, or any of them' 'except as to purchasers in good faith and for a present fair consideration.' As provided in § 67d, only 'liens given or accepted in good faith and not in contemplation of or in fraud upon this act' are unassailable. A transfer, the intent (or obviously necessary effect) of which is to deprive creditors of the benefits sought to be secured by the Bankruptcy Act, 'hinders, delays or defrauds creditors' within the meaning of § 67e. Van Iderstine v. National Discount Co. 227 U. S. 575, 582, 57 L. ed. 652, 654, 33 Sup. Ct. Rep. 343, points out the distinction between the intent to prefer and the intent to defraud. A transaction may be invalid both as a preference and as a fraudulent transfer. It may be invalid only as a preference or only as a fraudulent transfer. Making a mortgage to secure an advance with which the insolvent debtor intends to pay a pre-existing debt does not necessarily imply an intent to hinder, delay, or defraud creditors. The mortgage may be made in the expectation that thereby the debtor will extricate himself from a particular difficulty and be enabled to promote the interest of all other creditors by continuing his business. The lender who makes an advance for that purpose with full knowledge of the facts may be acting in perfect 'good faith.' But where the advance is made to enable the debtor to make a preferential payment with bankruptcy in contemplation, the transaction presents an element upon which fraud may be predicated. The fact that the money advance is actually used to pay a debt does not necessarily establish good faith. It is a question of fact in each case what the intent was with which the loan was sought and made. We cannot say that the facts found by the district court and affirmed by the circuit court of appeals were not supported by the evidence, nor that these courts erred in concluding upon this evidence that the mortgage was made with the purpose and intent to hinder, delay, or defraud Jones's creditors, and that Dean was not, as against general creditors, 'a purchaser in good faith.' Jones knew that he was insolvent. He knew that he was making a preferential payment. He must have known that suspension of his business and bankruptcy would result from giving and recording a mortgage of all his property to secure a note which had matured before the mortgage was executed. The lower courts were justified in concluding that he intended the necessary consequences of his act; that he willingly sacrificed his property and his other creditors to avert a threatened criminal prosecution; and that Dean, who, knowing the facts, cooperated in the bankrupt's fraudulent purpose, lacked the saving good faith. The conclusion reached by the lower courts is supported by many decisions of the several district courts and circuit courts of appeal, which are referred to in the margin.1 It is in harmony with both the Van Iderstine Case, and Coder v. Arts, 213 U. S. 223, 244, 53 L. ed. 772, 781, 29 Sup. Ct. Rep. 436, 16 Ann. Cas. 1008, upon which appellant particularly relies. In each of these cases this court refused to hold fraudulent in law a transfer which the circuit court of appeals had found to be innocent in fact. In the Van Iderstine Case, where a pledge was held valid, the circuit court of appeals had expressly found that the pledgee was without knowledge of the debtor's fraudulent intent, if such there was. In Coder v. Arts, where a mortgage was held valid, the circuit court of appeals had found that, in making the mortgage, the debtor had no intent to hinder, delay, or defraud creditors, and this court said that, 'in view of the finding of the circuit court of appeals, it may be that [he] though including in the conveyance a large amount of his property, acted in good faith, with a view to preserving his estate and enabling him to meet his indebtedness.' This court, while declaring the question of invalidity under § 67e was to express its dissent from the view 'that the giving of the mortgage and its effect upon other creditors could not be considered as an item of evidence in determining the question of fraud.' Dean contends also that relief should not have been granted under § 67e because the bill was framed under § 60b. The objection was not taken in the district court, although the question of invalidity under § 67e was elaborately discussed on demurrer to the bill as well as upon final hearing. Twentyfive other errors were assigned on the appeal to the circuit court of appeals. This objection was not raised then. It was insisted only that the evidence did not warrant the finding of fraudulent intent. Section 60b seems to have been mainly in the mind of the pleader when the bill of complaint was drafted, but not exclusively, for it alleges that the plaintiff as trustee was entitled 'to recover property transferred by said bankrupt in fraud of his creditors.' The answer expressly alleges that the mortgage was accepted 'without any intent or purpose of aiding said Jones to defraud, delay, or hinder his creditors, and not in contemplation of or in fraud of the Bankruptcy Act, or any of its provisions, believing him to be solvent, and that he would continue his business.' The issue of fraudulent transfer was presented by the pleadings, was fully tried, and was found against the appellant. No error was committed. Decree affirmed.

246.US.253

A civil engineer, employed by a railroad company, while surveying within one of its yards, was injured by a fall resulting from a defective tie and a space between ties unfilled by ballast. In an action under the Federal Employers' Liability Act, hed, upon the evidence, that the company did not fail in any duty which it owed to him. 170 N. Car. 170, affrmed.

Nelson a civil engineer who had been in the employ of the Southern Railway eleven years, was directed to make a survey in one of its yards. While doing so he walked on the main track between the rails where he had seen others walk. As he stepped upon a cross-tie, a small V-shaped piece of it one and a half inches by six, being rotten, slivered off under his weight. His foot slipped down between the ties where the ballast was five or six inches below the top of the tie; and stumbling, he fell and disloc ted his knee. The defect in the tie could have been discovered by sounding with an iron rod and the standard of maintenance of roadbed prescribed by the Railway was to ballast to the top of the ties. But neither the condition of the tie, nor the failure to ballast to the top of the tie, was a defect of a character to impair safety in operation. Plaintiff knew that there were always some ties on the line which were partly decayed, and also that the ballast was occasionally below the top of the ties. Upon these facts Nelson sought in a state court of North Carolina to recover damages from the Railway under the Federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1916, §§ 8657-8665]). The trial court refused defendant's motion for a non-suit; and the jury rendered a verdict for plaintiff. Judgment thereon was reversed by the Supreme Court of the State (170 N. C. 170, 86 S. E. 1036) on the ground that there was no evidence of negligence; and the case came here on writ of error. It is clear that the defendant did not fail in any duty which it owed to the plaintiff. Judgment affirmed.

244.US.585

A fire and marine insurance company in Pennsylvania is not required to maintain a reserve against unpaid losses by the law of that State (P. L. 1911, p. 607), and, therefore, amounts added by it to such a reserve may not be deducted in determining the company's taxable net income under § 38 of the Federal Corporation Excise Tax Act of August 5, 1909, c. 6, 36 Stat. 11, 112. 224 Fed. Rep. 657, reversed.

This was an action brought by respondent, a fire and marine insurance company of the state of Pennsylvania, to recover a part of the excise taxes exacted of it for the years 1910 and 1911 under the Act of August 5, 1909, chap. 6, § 38, 36 Stat. at L. 11, 112. As the case comes here, only two items are in dispute, one for each of the years mentioned, representing the tax upon amounts added in each of those years to that part of what are called its 'reserve funds' that is held against accrued but unpaid losses. The act imposed upon every insurance company organized under the laws of the United States or of any state an annual excise tax with respect to the carrying on or doing business, equivalent to 1 per centum upon its entire net income over and above $5,000, with exceptions not here pertinent. The second paragraph of § 38 provided: 'Such net income shall be ascertained by deducting from the gross amount of the income of such . . . insurance company . . . (second) all losses actually sustained within the year and not compensated by insurance or otherwise, including a reasonable allowance for depreciation of property, if any, and in the case of insurance companies the sums other than dividends, paid within the year on policy and annuity contracts and the net addition, if any, required by law to be made within the year to reserve funds.' The italics indicate the particular words upon which the controversy turns; the question being whether, within the meaning of the act of Congress, 'reserve funds,' with annual or occasional additions, are 'required by law' in Pennsylvania to be maintained by fire and marine insurance companies, other than the 'unearned premium' or 'reinsurance reserve,' known to the general law of insurance. The district court rendered a judgment in plaintiff's favor, excluding, however, the disputed items (218 Fed. 905); on plaintiff's writ of error the circuit court of appeals reversed this judgment, with instructions to allow the claim in full (140 C. C. A. 167, 224 Fed. 657); and the case was brought here by writ of certiorari. Plaintiff was chartered by a special act, but is subject to the state insurance law. Its business is confined to fire and marine insurance. The law of Pennsylvania (Act of June 1, 1911, P. L. 607, 608) creates a state insurance commissioner with supervisory control over the companies; provides in § 4 that he shall see that all the laws of the commonwealth respecting insurance companies are faithfully executed, authorizing him to make examinations, to have access to all the books and papers of any company, to examine witnesses relative to its affairs, transactions, and condition, to publish the result of his examination when he deems it for the interest of the policy-holders to do so, and to suspend the entire business of any company during its noncompliance with any provision of law obligatory upon it, or whenever he shall find that its assets are insufficient to justify its continuance in business; and whenever he finds any company to be insolvent or fraudulently conducted, or its assets insufficient for the carrying on of its business, he is to communicate the facts to the attorney general. By § 15 every insurance company is required to file annual statements with the commissioner, upon blank forms to be furnished by him, such as shall seem to him best adapted to elicit a true exhibit of their financial condition. Sections 7, 8, and 9, set forth in the margin,1 make specific provisions for ascertaining the reserve for different classes of companies other than life insurance companies. Another act of the same date (P. L. 1911, p. 599) provides for judicial proceedings at the instance of the insurance commissioner looking to the dissolution of insolvent and delinquent companies. Its provisions need not be quoted. A previous act (April 4, 1873, P. L. 20, 22) required a specified reinsurance reserve against unexpired risks on fire, marine, and inland policies. The Act of 1911, just quoted, requires the maintenance of a substantially similar reserve; and, with respect to casualty companies, and these only, that a reserve be maintained against unpaid losses, based upon the amount of claims presented. The reference in § 9 to 'reinsurance and loss reserves, as above defined,' is limited by what precedes it; and the section deals not alone with 'reserves,' but requires 'all other debts and claims' to be accounted as liabilities. It appears that under this legislation, and under previous statutes in force since 1873, the insurance commissioner has required plaintiff and similar companies to return each year, as an item among their liabilities, the net amount of unpaid losses and claims, whether actually adjusted, in process of adjustment, or resisted. And, although this practice has not been sanctioned by any decision of the supreme court of the state, it is relied upon as an administrative interpretation of the law. Conceding full effect to this, it still does not answer the question whether the amounts required to be held against unpaid losses, in the case of fire and marine insurance companies, are held as 'reserves,' within the meaning of the Pennsylvania law or of the act of Congress, however they may be designated upon the official forms. As already appears, the Pennsylvania act specifically requires debts and claims of all kinds to be included in the statement of liabilities, and treats them as something distinct from reserves. The object is to exercise abundant caution to maintain the companies in a secure financial position. The act of Congress, on the other hand, deals with reserves not particularly in their bearing upon the solvency of the company, but as they aid in determining what part of the gross income ought to be treated as net income for purposes of taxation. There is a specific provision for deducting 'all losses actually sustained within the year and not compensated by insurance or otherwise.' And this is a sufficient indication that losses in immediate contemplation, but not as yet actually sustained, were not intended to be treated as part of the reserve funds; that term rather having reference to the funds ordinarily held as against the contingent liability on outstanding policies. In our opinion the reserve against unpaid losses is not 'required by law,' in Pennsylvania, within the meaning of the act of Congress. It results that the judgment of the Circuit Court of Appeals should be reversed and that of the District Court affirmed. Reversed. The CHIEF JUSTICE and Mr. Justice McKenna dissent. Mr. Justice McReynolds took no part in the consideration or decision of this case.

243.US.121

A suit brought by a trustee in bankruptcy under § 60b of. the Bankruptcy Act to set aside an unlawful preference is a controversy arising in a bankruptcy proceeding.' In such. controversies, judgments and. decrees of the Circuit Courts of Appeals which might otherwise have come within the general appellate powers of this court as defined by the Judicial Code are, by the Act of January 28, 1915, 38 Stat. 804, made final, and this court may review them only by certiorari. Appeal to review 233 'Fed. Rpm,- 514. dismissed.

This is a motion to dismiss the appeal in a suit brought originally in the United States district court for the southern district of California by the Security Trust & Savings Bank, as trustee in bankruptcy of the estate of Fielding J. Stilson Company, against William R. Staats Company and Title Insurance & Trust Company, the complaint alleging that the Stilson Company was adjudged a bankrupt on October 24th, 1912; that the Stilson Company made and delivered to the Title Insurance & Trust Company a deed of trust for certain realty, situated in the city of Los Angeles, to secure an indebtedness in the sum of $3,870, due by the Stilson Company to the Staats Company; that the effect of this conveyance was to enable the Staats Company to receive a greater percentage of its indebtedness than other creditors of the same class, and that the conveyance was made with a view to giving a preference, in violation of the Bankruptcy Act, and a decree was prayed declaring the conveyance void and of no effect. The suit was brought by authority of § 60b of the Bankruptcy Act of 1898 [30 Stat. at L. 562, chap. 541, Comp. Stat. 1913, § 9644]. On issues made, the case was referred to a special master, who found the conveyance by the Stilson Company to the Tile Insurance & Trust Company to have been made and received as security for an indebtedness in the sum of $3,870, then due by the Stilson Company to the Staats Company, and that the same was an unlawful preference within the meaning of the Bankruptcy Act. Upon exceptions to the master's report, the district court overruled some exceptions and sustained others, and dismissed the complaint. An appeal was taken to the circuit court of appeals for the ninth circuit, which court reached the conclusion that the conveyance in question was a preference within the meaning of the Bankruptcy Act, reversed the decree of the district court, and remanded the case to that court with directions to enter a judgment in favor of the complainant. 147 C. C. A. 400, 233 Fed. 514. Afterwards an appeal from this decree of the circuit court of appeals was allowed to this court. We think it is plain that this apeal must be dismissed. The decree of the circuit court of appeals was made final by the Act of Congress of January 28, 1915 (38 Stat. at L. 804, chap. 22), and the only right of review in this court is by writ of certiorari. This act provides: 'That the judgments and decrees of the circuit courts of appeals in all proceedings and cases arising under the Bankruptcy Act and in all controversies arising in such proceedings and cases shall be final, save only that it shall be competent for the Supreme Court to require by certiorari, upon the petition of any party thereto, that the proceeding, case, or controversy be certified to it for review and determination, with the same power and authority as if taken to that court by appeal or writ of error; but certiorari shall not be allowed in any such proceeding, case, or controversy unless the petition therefor is presented to the Supreme Court within three months from the date of such judgment or decree.' The language of this act is very comprehensive, and embraces proceedings and cases arising under the Bankruptcy Act and controversies arising in such proceedings, and provides that the judgments and decrees of the circuit court of appeals in such controversies, proceedings, and cases shall be final. The case now under consideration is a controversy arising in a bankruptcy proceeding. Hewit v. Berlin Mach. Works, 194 U. S. 296, 48 L. ed. 986, 24 Sup. Ct. Rep. 690; Coder v. Arts, 213 U. S. 223, 53 L. ed. 772, 29 Sup. Ct. Rep. 436, 16 Ann. Cas. 1008; Tefft, W. & Co. v. Munsuri, 222 U. S. 114, 56 L. ed. 118, 32 Sup. Ct. Rep. 67; Barnes v. Pampel, 113 C. C. A. 81 (C. C. A. 6th C.) 192 Fed. 525. We find no merit in the contention that, after the passage of the Act of 1915, appellate proceedings in this court in such suits as this should continue to be controlled by the general provisions of the Judicial Code. This statute manifested the purpose of Congress to relieve this court from the necessity of considering cases of this character, except when brought here by writ of certiorari. Central Trust Co. v. Lueders, 239 U. S. 11, 60 L. ed. 119, 36 Sup. Ct. Rep. 1; Shattuck v. Title Guaranty & Surety Co. 239 U. S. 637, 60 L. ed. 480, 36 Sup. Ct. Rep. 446. It follows that the motion to dismiss this appeal for want of jurisdiction must be granted. Appeal dismissed.

243.US.607

A charge of perjury may be based upon a valid regulation of the Land Department requiring an affidavit, if the oath be taken "before a competent tribunal, officer or person." United States v. ,Smuil, 236 U. S. 405. The Land Department being expressly charged with the duty of enforcing the public land laws by appropriate regulations, its regulations in that regard, when duly promulgated, must be deemed valid if they are not unreasonable, inappropriate, or inconsistent with the acts of Congress. A regulation of the Land Department requiring applicants for soldiers' homesteads)inder Rev. Stats., §§ 2304 et seq., to make oath in their declaratory, statements that their claims are for their exclusive use and benefit, for the purpose of actual settlement and cultivation, and not either directly or indirectly for the use or benefit of any other person, and that agents filing such statements have no right or interest, direct or indirect, in the filing thereof, is a.valid regulation, not adding to the conditions of the statute but serving to effectuate its purpose. The regulation of the Department providing that soldiers' declaratory statements, when filed by agent, may be executed before any officer having a seal and authorized to administer oaths generally, is appropriate and valid, and an oath to such a statement taken before a state notary or clerk of court pursuant to such regulation violates the federal perjury statute, if the statement is material and false.

Morehead was indicted under § 37 of the Criminal Code [35 Stat. at L. 1096, chap. 321, Comp. Stat. 1913, § 10,20] for conspiring with others to commit an offense against the United States. The offense contemplated by the conspirators is subornation of perjury (Criminal Code, § 126) in connection with soldiers' declaratory statements, to be filed by defendant as agent, covering public lands under the Homestead Law. The perjury set forth in the indictment consists in false swearing before notaries public and clerks of state courts to declaratory statements. The parts of the statement alleged to be false are those which declare: (1) That the claim is made for his [the applicant's] exclusive use and benefit, for the purpose of actual settlement and cultivation, and not either directly or indirectly for the use or benefit of any other person. (2) That the agent has no right or interest, direct or indirect, in the filing of such declaratory statement. The district court sustained a demurrer on the ground that the indictment did not charge a crime, holding that there was no law which required affidavits to soldiers' declaratory statements; that the Land Department was not authorized to exact them; that consequently no law 'authorizes an oath to be administered' to such affidavits; and, as perjury is possible only when an oath is authorized to be administered, the procuring of these false oaths could not be subornation of perjury, nor an agreement to secure them a conspiracy to suborn perjury. The case comes here on writ of error under the Criminal Appeals Act (March 2, 1907, chap 2564, 34 Stat. at L. 1246, Comp. Stat. 1913, § 1704). The Homestead Law (Rev. Stat. §§ 2304-2309, Comp. Stat. 1913, § 4592-4594, 4602, 4603, 4605, embodying Act of June 8, 1872, chap. 338, 17 Stat. at L. 333) does not prescribe whether or not an affidavit shall accompany a soldier's declaratory statement. The affidavit is prescribed by a regulation of the Commissioner of the General Land Office, promulgated with the approval of the Secretary of the Interior.1 It is clear that a charge of perjury may be based upon a valid regulation of the General Land Office requiring an affidavit if the oath be taken 'before a competent tribunal, officer, or person.' United States v. Smull, 236 U. S. 405, 59 L. ed. 641, 35 Sup. Ct. Rep. 349. The question obviously arising here is whether the law authorized the oath to be administered. Another question—whether it was administered by a competent tribunal, officer, or person—was treated by both parties as requiring decision. Assuming without specially determining the occasion for passing upon the second question, we proceed to consider both. 1. Whether an affidavit may be required to a soldiers' homestead declaratory statement. The Homestead Law2 gives to every soldier who served in the Army of the United States during the War of the Rebellion for ninety days, was honorably discharged and remained loyal to the government, the right, upon certain conditions, to enter upon 160 acres of the public land as a homestead and receive a patent therefor. To comply with these conditions the applicant must make actual entry,3 settlement, and improvement; and he must, on applying to enter the land, make and file the affidavit, as provided in Rev. Stat. § 2290, Comp. Stat. 1913, § 4531, that such application is honestly and in good faith made for the purpose of actual settlement and cultivation, and not for the benefit of any other person. Furthermore, in order to obtain a certificate or patent, he must, under Rev. Stat. § 2291, Comp. Stat. 1913, § 4532, make proof of his residence for the full period, and an affidavit 'that no part of such land has been alienated.' The filing of a declaratory statement is not a necessary step in acquiring title to land. It relates to a privilege, akin to pre-emption, by which he may secure, prior to the entry under § 2290, Comp. Stat. 1913, § 4531, a preferential right to acquire, under the homestead law, the particular tract located on. The privilege is exercised by filing the declaratory statement with the register; and if exercised, lapses unless, within six months thereafter, the soldier makes entry and actually commences settlement and improvement. See Re Hotaling, 3 Land Dec. 17, 20; Stephens v. Rey, 5 Land Dec. 133, 134. To render this privilege readily available to soldiers living at a distance, authority is given (Rev. Stat. § 2309, Comp. Stat. 1913, § 4605)4 to 'enter upon the homestead by filing a declaratory statement,' 'as well by an agent as in person.' Thus the soldier can be assured of the selection of an advantageous homestead before perfecting his plan for removing to his new home. It is a matter of common knowledge that this special privilege, granted to facilitate the acquisition by soldiers of homesteads in grateful recognition of patriotic service, was soon perverted into an instrument of fraud. Soldiers' declaratory statements, acquired by so-called agents in large numbers, became the subject of extensive speculation. They were used as a means of preempting choice lands for a period of six months with a view merely to selling relinquishments of locations to persons desiring to acquire public lands under the preemption or general homestead laws. (See Re Gardner, 1 Land Dec. 79.) To stay this abuse the General Land Office issued, on December 15, 1882, the circular concerning 'Soldiers' Homestead Declaratory Statements' (1 Land Dec. 648),5 prescribing requirements which have since remained in force and are embodied in substance in the regulation of October 11, 1910. Defendant contends that this regulation, which has been enforced continuously for nearly thirty-five years, is invalid. Since the Land Department is expressly charged with the duty of enforcing the public land laws by appropriate regulations,6 and the regulation in question was duly promulgated, the assertion of its invalidity must be predicated either upon its being inconsistent with the statutes or upon its being in itself unreasonable or inappropriate. That the requirement of the soldier's affidavit to the fact essential to the existence of any right of the applicant under the law is both reasonable and appropriate can scarcely be doubted. United States v. Smull, 236 U. S. 405, 411, 59 L. ed. 641, 643, 35 Sup. Ct. Rep. 349; United States v. Bailey, 9 Pet. 238, 255, 9 L. ed. 113, 120. But defendant urges that the regulation is inconsistent with the statute, in that it adds to the requirements of the statute still another condition to be performed before the soldier can acquire his homestead; and hence is legislation, not regulation. But the regulation does not add a new requirement in exacting the affidavit, as in Williamson v. United States, 207 U. S. 425, 458-462, 52 l. ed. 278, 294-297, 28 Sup. Ct. Rep. 163. It merely demands appropriate evidence that the proceeding is initiated—as the statute requires it must be throughout conducted—in good faith, for the single purpose of acquiring a homestead. Great stress is laid upon the reference to 'pre-emption cases' in Rev. Stat. § 2309, Comp. Stat. 1913, § 4605, which provides that the soldier 'may as well by an agent as in person enter upon such homestead by filing a declaratory statement as in pre-emption cases.' In proceedings under the pre-emption laws (Rev. Stat. §§ 2275, 2276, 2286, 2288, Comp. Stat. 1913, §§ 4860, 4861, 4869, 4535, repealed by Act of March 3, 1891, chap. 561, 26 Stat. at L. 1095, Comp. Stat. 1913, § 5116), an affidavit was not required either by the statute or by regulation (see 10 Land Dec. 687); and it is said that it cannot, therefore, be required under the provisions for soldiers in the Homestead Law. But the reference in the latter statute carries no such implication. It was inserted for a different purpose. The general homestead law does not give the privilege of securing, in advance of formal entry, a preferential right to a particular location. That is, it gives no right to prior selection; and none accrues from prior occupation save such as is given by § 3 of the Act of May 14, 1880, chap. 89, 21 Stat. at L. 140, Comp. Stat. 1913, § 4538. Nor does the pre-emption law give a privilege to acquire, merely by selection, a preferential right to a particular parcel of land. But under it, the person who actually 'settles and improves' land may, in advance of entry under Rev. Stat. § 2262, acquire a preferential right over others, to the particular parcel, by filing with the register within thirty days thereafter (Rev. Stat. § 2264) 'a written statement describing the land settled upon.' To that 'written statement' the 'declaratory statement' provided for by the provision for soldiers in the Homestead Law may be likened; but the conditions under which it is filed are very dissimilar. The pre-emptioner must personally, before 'filing,' have actually entered upon the land, must have commenced settlement and improvement,—acts which, in themselves, furnish evidence that the proceeding has been initiated in good faith. The soldier homesteader, on the other hand, need do nothing whatever to obtain a six months' preferential right save file the declaratory statement, and that may be done by an agent,—a situation calling for extrinsic evidence by affidavit of the applicant's good faith. Good reasons thus exist for a difference in requirements in the two classes of cases; but the power of the Land Department to require an affidavit to the declaratory statement even in pre-emption cases, as it did to declaratory statements under the Coal Land Law, seems not to have been questioned. (Rev. Stat. §§ 2348, 2349, Comp. Stat. 1913, §§ 4660, 4661; 1 Land Dec. 687, &Par;28,33.) The regulation calling for an affidavit to a soldier's declaratory statement under the Homestead Law, unlike that considered in United States v. George, 228 U. S. 14, 57 L. ed. 712, 33 Sup. Ct. Rep. 412, is thus a regulation entirely consistent with the statutory provisions; and being also appropriate, is valid. 2. Whether state officers are authorized to administer the oath. The purpose of Congress in allowing filings to be made by an agent was to facilitate the acquisition of homesteads by soldiers living at a distance from the land to be settled on. To their declaratory statements the several statutes7 which provide for the administering of oaths by registers and receivers, or by the clerks of courts or United States commissioners in the district wherein the land is situated, are obviously not exclusively applicable, if applicable at all. And plainly the provision of Rev. Stat. § 2293, Comp. Stat. 1913, § 4545, relating to affidavits before the commanding officers of soldiers actually engaged in service, is inapplicable. The requirement of an affidavit to the declaratory statement, to be made by soldiers living elsewehere than in the land district, can be complied with only if an oath before some officer other than those specifically named in those statutes is recognized as being within the authority of law. It follows that, to carry out the duties imposed by law, the Land Department was called upon to make appropriate provision for the administering of oaths in such cases; and the provision that soldiers' declaratory statements, when filed by agent, 'may be executed before any officer having a seal and authorized to administer oaths generally,' is both appropriate and 'not inconsistent with law.' Ever since the decision in United States v. Bailey, 9 Pet. 238, 255, 9 L. ed. 113, 120, it has been held that an oath administered by a state magistrate, in pursuance of a valid regulation of one of the departments of the Federal government, though without express authority from Congress, subjects the affiant to the penalties of the Federal statute against false swearing. See Caha v. United States, 152 U. S. 211, 218, 38 L. ed. 415, 417, 14 Sup. Ct. Rep. 513. The indictment charges a crime under the laws of the United States. Judgment of the District Court is reversed and the case is remanded for further proceedings in conformity with this opinion. It is so ordered.

243.US.93

A fire insurance company, to obtain a license to do business in Missouri, filed with the Superintendent of the Insurance Department of that State, under Missouri Rev. Stats., 1909, § 7042, a power of attorney consenting that service of process on him should be deemed personal service on the company so long as it should have any liabilities outstanding in the State. The Missouri Supreme Court, construing the statute, held that the consent covered service in an action in Missouri on a policy issued in Colorado insuring buildingr in the latter State. Held, that the construction had a rational basis in the statute and therefore could not be deemed to deprive the company of due process of law, even if it took it by surprise. O'Neil v. Northern Colorado IrrigationC o., 242 U. S. 20, 26. When a power actually is conferred by a document, the party executing it takes the risk of the interpretation that may be put upon it by the courts. Old Wayne Mutual Life Association v. McDonough, 204 U. S. 8, and Simon v. Southern Ry. Co., 236 U. S. 115, distinguished. A mere error of construction committed by a state court in a candid effort to construe the laws of another State is not a denial of full faith and credit (Const., Art. IV, § 1), entitling the complaining party to come to this court. 267 Missouri, 524, affirmed.

This is a suit upon a policy of insurance issued in Colorado by the defendant, the plaintiff in error, to the defendant in error, an Arizona corporation, insuring buildings in Colorado. The defendant insurance company had obtained a license to do business in Missouri, and to that end, in compliance with what is now Missouri Rev. Stat. 1909, § 7042, had filed with the superintendent of the insurance department a power of attorney consenting that service of process upon the superintendent should be deemed personal service upon the company so long as it should have any liabilities outstanding in the state. The present suit was begun by service upon the superintendent. The insurance company set up that such service was insufficient except in suits upon Missouri contracts, and that if the statute were construed to govern the present case, it encountered the 14th Amendment by denying to the defendant due process of law. The supreme court of Missouri held that the statute applied and was consistent with the Constitution of the United States. 267 Mo. 524, 184 S. W. 999. The construction of the Missouri statute thus adopted hardly leaves a constitutional question open. The defendant had executed a power of attorney that made service on the superintendent the equivalent of personal service. If by a corporate vote it had accepted service in this specific case, there would be no doubt of the jurisdiction of the state court over a transitory action of contract. If it had appointed an agent authorized in terms to receive service in such cases, there would be equally little doubt. New York, L. E. & W. R. Co. v. Estill, 147 U. S. 591, 37 L. ed. 292, 13 Sup. Ct. Rep. 444. It did appoint an agent in language that rationally might be held to go to that length. The language has been held to go to that length, and the construction did not deprive the defendant of due process of law even if it took the defendant by surprise, which we have no warrant to assert. O'Neil v. Northern Colorado Irrig. Co. 242 U. S. 20, 26, 61 L. ed. 123, 37 Sup. Ct. Rep. 7. Other state laws have been construed in a similar way; e. g., Bagdon v. Philadelphia & R. Coal & I. Co. 217 N. Y. 432, L.R.A.1916F, 407, 111 N. E. 1075; Johnson v. Trade Ins. Co. 132 Mass. 432. The defendant relies upon Old Wayne Mut. Life Asso. v. McDonough, 204 U. S. 8, 51 L. ed. 345, 27 Sup. Ct. Rep. 236, and Simon v. Southern R. Co. 236 U. S. 115, 59 L. ed. 492, 35 Sup. Ct. Rep. 255. But the distinction between those cases and the one before us is shown at length in the judgment of the court below, quoting a brief and pointed statement in Smolik v. Philadelphia & R. Coal & I. Co. 222 Fed. 148,—a statement reinforced by Cardozo, J., in Bagdon v. Philadelphia & R. Coal & I. Co. supra. In the above-mentioned suits the corporations had been doing business in certain states without authority. They had not appointed the agent as required by statute, and it was held that service upon the agent whom they should have appointed was ineffective in suits upon causes of action arising in other states. The case of service upon an agent voluntarily appointed was left untouched. 236 U. S. 129, 130. If the business out of which the action arose had been local, it was admitted that the service would have been good, and it was said that the corporation would be presumed to have assented. Of course, as stated by Learned Hand, J., in 222 Fed. 148, 151, this consent is a mere fiction, justified by holding the corporation estopped to set up its own wrong as a defense. Presumably the fiction was adopted to reconcile the intimation with the general rules concerning jurisdiction. Lafayette Ins. Co. v. French, 18 How. 404, 15 L. ed. 451; Michigan Trust Co. v. Ferry, 228 U. S. 346, 353, 57 L. ed. 867, 874, 33 Sup. Ct. Rep. 550. But when a power actually is conferred by a document, the party executing it takes the risk of the interpretation that may be put upon it by the courts. The execution was the defendant's voluntary act. The Eliza Lines, 199 U. S. 119, 130, 131, 50 L. ed. 115, 120, 26 Sup. Ct. Rep. 8, 4 Ann. Cas. 406. The insurance company also sets up that the supreme court of Missouri failed to give full faith and credit to the public acts of Colorado. The ground is that one condition of the policy was that the insured was the owner in fee simple of the land under the insured buildings; that when the plaintiff bought the land, as it did, it had not taken out a license to do business in Colorado, and that the laws of that state forbade the plaintiff to acquire any real or personal property until the license fees should have been paid. The Missouri court held that it was enough if the plaintiff had paid the fees and got the license before instituting this suit. There is nothing to suggest that it was not candidly construing the Colorado statutes to the best of its ability, and even if it was wrong, something more than an error of construction is necessary in order to entitle a party to come here under article 4, § 1. Johnson v. New York L. Ins. Co. 187 U. S. 491, 496, 47 L. ed. 273, 275, 23 Sup. Ct. Rep. 194; Finney v. Guy, 189 U. S. 335, 47 L. ed. 839, 23 Sup. Ct. Rep. 558; Allen v. Alleghany Co. 196 U. S. 458, 464, 465, 49 L. ed. 551, 555, 556, 25 Sup. Ct. Rep. 311; Louisville & N. R. Co. v. Melton, 218 U. S. 36, 51, 52, 54 L. ed. 921, 927, 928, 47 L.R.A.(N.S.) 84, 30 Sup. Ct. Rep. 676; Western Life Indemnity Co. v. Rupp, 235 U. S. 261, 275, 59 L. ed. 220, 225, 35 Sup. Ct. Rep. 37. The plaintiff suggests that the whole controversy is res judicata by reason of the decision in State ex rel. Fidelity-Phoenix F. Ins. Co. v. Barnett, 239 Mo. 193, 143 S. W. 501, in which the insurance company is said to have been one of the relators, and which followed the decision in State ex rel. Pacific Mut. L. Ins. Co. v. Grimm, 239 Mo. 135, 143 S. W. 483. It also urges that the defendant waived any objection it might have had to the validity of this service by appearing and pleading to the merits. As the facts hardly appear, and as the state court discussed the merits of the case, we do not pass upon these matters, which, in a different state of the record, might need at least a few words. Judgment affirmed.

244.US.432

The testimony of an accomplice who turns State's evidence in a murder case is not to be discarded because of his base character, or his oscillating retraction and reiteration of the charge, but must be ac-, corded such weight as is due it when judged by confirming or opposing circumstances, by his character and the influences which invested him. In this case the court, considering evidence on which was based a conviction of murder, concurred in by the court of first instance and the Supreme Court of the Philippine Islands, holds that the doubts aroused by the character and vacillation of the government's chief witness (who testified that he was hired by the defendant and did the killing under his direction), are not such as to justify a reversal in view of the corroborating evidence, including evidence of a motive on the part of the defendant, and the absence of any doubt that murder was actually done. A view of the scene of the murder by the trial judge does not deprive the accused of his constitutional right, carried to him by the Philippine Code, to "meet the witnesses face to face," where the view is conducted in the presence and with the consent of his counsel, and no testimony is taken, and no improper remarks are addressed to the judge. The right of the accused to be present during the inspection may be waived by his counsel; but, even when the right is not waived, his absence will not warrant a reversal if no prejudice resulted. 30 Phil. Rep. 293, affirmed. THE case is stated in the opinion.

Valdez was proceeded against by complaint under the procedure, of the Philippine Islands for the crime of murder. It was circumstantially described as having been committed by Valdez and one Francisco Amante and one Juan Gatmaitan, the latter having been induced by Valdez 'by reason of a promise of reward' (900 pesos) to shoot one Eusebio Yuson with a shotgun furnished by Amante, inflicting nine mortal wounds, instantly killing Yuson. There was a demurrer filed to the complaint which need not be noticed. Upon the trial of Valdez and Amante, after pleas of not guilty, the court in an opinion circumstantially reviewed the evidence and found Amante not guilty, 'for insufficiency of evidence.' Valdez was found guilty 'beyond a reasonable doubt.' He was sentenced to the penalty of death and to indemnification of the family of the deceased. At a separate trial Gatmaitan was also found guilty and sentenced to imprisonment for life. There was a motion for rehearing, which was denied. Valdez and Gatmaitan took separate appeals to the supreme court of the Islands, but, according to the statement of the court, at the request of counsel, the appeals were 'heard and considered together, in order to give counsel for the defense an opportunity to develop any inconsistencies or contradictions which might appear as a result of a critical analysis and comparison of the evidence of record in both cases.' The judgment against Valdez was affirmed; that against Gatmaitan was modified by the substitution of death for life imprisonment. Two of the judges dissented, one thinking that the 'accused,' not designating him (presumably Valdez), was entitled 'to an acquittal on the facts presented;' the other being of opinion that the prosecution had 'not proved the guilt of appellants of the crime of which they were convicted.' The case is here upon a writ of error sued out by Valdez, and the questions presented are, to quote counsel: (1) Whether the absence of the accused during a part of the proceedings in the trial constitutes an error requiring reversal, and (2) whether there was any evidence adequate to warrant the conviction. The second question may be disposed of first. A negative answer is urged upon a consideration of the credibility of the witnesses, the relative probative strength of their testimonies, their mental and moral defects, the various statements of Gatmaitan, being a witness for the prosecution, first testifying to the guilt of Valdez and by subsequent statement retracting the accusation, and later retracting the retraction, and an asserted absence of motive for the crime. The elements of these contentions were passed upon by the lower courts and the guilt of Valdez and Gatmaitan determined. It ordinarily would be enough to say that there was justification for the determination; but lest it may be supposed that the guilt of Valdez depended alone upon the testimony of Gatmaitan, he having been an active accomplice in the homicide, some comment becomes necessary and at least a characterization of the evidence. Gatmaitan's testimony was, of course, an important factor, but it had substantial corroboration. He was shown, it is true, to be a low type of man. One who becomes for hire, as he did, the criminal executor of another's malice, is usually such. No other would accept the shameful service. But it is not reserved for this case to make a novel contribution to the criminal experience of the country, or to demonstrate that there are such hirers and hirelings; and when the hireling turns state's evidence, as he sometimes does, or his weakness, awed by the penalties of his crime, breaks down and confesses, as it sometimes does, or he changes or qualifies or retracts, as he sometimes does, as hope or interest or fear sways him, his testimony or confession is not to be summarily discarded, but to be judged of by confirming or opposing circumstances as well as by his character and the influences that may invest him. And it was such judgment the two lower courts exercised; it is such judgment in our turn that we are required to exercise. This record, indeed, shows that the character and characteristics of Gatmaitan, his mental and social inferiority to Valdez, made him facile to Valdez's solicitation and a purchasable agent for Valdez's purpose. And Valdez was shown, independently of Gatmaitan's testimony, to have had a purpose,—a fixed enmity to Yuson, engendered in a controversy over certain water rights. In gratification of it he carefully planned the crime, set its time and place, procured its weapon, gave the weapon to Gatmaitan, and hired a scout to observe the moments of Yuson and report his approach. The service was exactly performed, and upon his approach occurred the tragedy. Yuson was shot in the back and instantly killed as he was entering his home; and the crowning horror of it was that it was done in the hearing and almost in the presence of his wife, even as she was speaking to him and moving to meet him. Such is the outline of the crime. And crime it was. There is no dispute about that or the manner of execution. Valdez, as a witness in his own behalf, denied participation in it or precedent knowledge, and attempted to prove an alibi. His denial was not believed, his alibi decided not to have been established. It cannot be held, therefore, that his conviction was not sustained by the evidence, and the sentence imposed upon him not justified, even though its doom be death. Upon the other question the record shows this: Gatmaitan was a witness for the prosecution. He related that he was employed by Valdez to kill Yuson for 900 pesos, given him, Gatmaitan, for that purpose, and that he shot Yuson as Yuson was approaching his (Yuson's) house—Valdez assisting him, Gatmaitan. Indeed, Gatmaitan testified that Valdez ordered him to shoot, but that the gun would not go off, and Valdez showed him how to shoot—'and right at that moment the gun went off.' Gatmaitan further testified that he and Valdez located themselves 'in a fence near the staircase' of Yuson's house, and from that location fired the shot. There was other testimony, as we have indicated, and distances of objects from one another were testified to. At the close of the testimony the prosecuting attorney asked the court to visit 'the place of the occurrence in order to make there an inspection so that the court may judge the distances.' One of the counsel for the defense assented, saying: 'Yes: we do not object, so that the court may see.' Another counsel for the defense called for the 'motive' of the prosecution in asking 'for the ocular inspection.' It was replied that its object was to enable the court to obtain a correct idea of all the distances in connection with the assassination of the deceased, as well as, of the places where the witnesses for the prosecution found themselves and where they talked together. And further, 'We want that done in order that everything may be clear.' To which counsel for the defense replied that he had on occasions been present at ocular inspections and that testimony was taken which produced confusion, and, further: 'What I wish, with the consent of the prosecuting attorney, is that an inspection be made there, but that no testimony be taken because it produces great confusion when one tries to examine witnesses at the place of the occurrence.' The prosecuting attorney, however, thought it advisable not to dispense with such testimony or take from the court its discretion, 'so that when the court arrives there it may ask all unknown persons where the deceased fell, where the wad was found, where Gatmaitan was, and where Mateo Arcilla was.' All of which opposing counsel thought had been already proved. The court expressed its willingness to make the inspection, as the result would be evidence for both parties after the defense had produced its rebuttal testimony, and upon the defense announcing that it had no rebuttal testimony, the case was closed. The court made the inspection; Valdez was not present, but his counsel were. There is an opposition of affidavits submitted upon a motion for new trial. Those submitted by defendant (three of which were in almost exactly the same words) averred that the persons making them were present at the inspection by the court and saw the judge examine the various points at the scene of the crime and the point where Gatmaitan stood when he fired the murderous shot. That they also saw the widow of the deceased show the manner in which her husband fell,—she illustrating,—and that she also told the judge 'certain facts which happened at the time of the murder.' That they also saw Captain Crockett, of the constabulary, point out to the judge the places in the stairway and in the house where the shot had penetrated, and saw him walk with the judge and point out to him certain streets and houses connected with the case, and also saw the judge and such officer and the attorneys in the case and other persons examine other places. One of the counsel for the defense also filed an affidavit. It averred that the judge went to the scene of the killing, accompanied by the attorneys for both sides, but that neither Valdez nor his attorneys were consulted by the judge as to whether or not Valdez desired to accompany the court. That the widow of the deceased 'explained to the judge many occurrences which she claimed to have taken place on the night of the killing, what she claimed to have said to the deceased just prior to the killing and illustrated how and where the deceased had fallen, and discussed many other matters in connection with the case, during all which times she was crying and wringing her hands in grief.' That Captain Crockett was charged by at least one witness as being an official 'of a body which had forced and intimidated' the witness to give false testimony against Valdez. That Captain Crockett pointed out bullet marks to the judge, pointed out where the shot was fired as indicated by Gatmaitan, and made other statements to the judge that Gatmaitan had made to him 'as to other circumstances of the case.' That Captain Crockett walked through the streets with the judge and pointed out to him various objects which had been referred to during the trial, part of the time being alone with the judge. That Captain Crockett discussed distances between objects, giving his opinion of the same, and particularly the distance from the house of the deceased to the house of Valdez, and told the judge in that connection that he had measured such distance with a "speedometer' on his motorcycle.' That during the inspection the affiant made objections as attorney for Valdez as to the conduct of the widow and Crockett, but they were allowed to continue their conversations with the judge. These affidavits were distinctly and circumstantially contradicted by affidavits, accompanied by photographs of the positions of the judge and the persons involved. One of the affidavits was by Captain Crockett and two of them were by the attorneys who prosecuted the case, both of whom were present at the inspection and in such relation to it as to know what occurred. The supreme court, in passing upon the motion, said: 'A careful examination of these affidavits and the counteraffidavits filed by the appellee satisfies us that nothing more than inspection of the scene of the murder was made by the trial judge, and that no evidence whatever was taken on that occasion; and we are of opinion that, under all the circumstances, there was no violation of the constitutional right of the prisoner to be confronted with the witnesses. People v. Thorn, 156 N. Y. 286, 42 L.R.A. 368, 50 N. E. 947, and the cases cited in the extended note in the annotated report.' Such being the record, we must assume that the judge, in his inspection of the scene of the homicide, was not improperly addressed by anyone, and, in the presence of counsel, did no more than visualize the testimony of the witnesses,—giving it a certain picturesqueness, it may be, but not adding to or changing it. It would be going a great way to say that the requirement of the Philippine Code, carrying the constitutional guaranty to an accused to 'meet the witnesses face to face,' was violated and could not be waived. And we think practically Valdez's presence was waived. But, aside from any question of waiver, it would be pressing the right of an accused too far and Diaz v. United States, 223 U. S. 442, 56 L. ed. 500, 32 Sup. Ct. Rep. 250, Ann. Cas. 1913C, 1138, beyond its principle to so hold. As well might it be said that an accused is entitled to be with the judge in his meditations, and that he could entertain no conception nor form any judgment without such personal presence. The judgment should not be reversed upon a mere abstraction. It is difficult to divine how the inspection, even if the affidavits of the defendants should be taken at their face value, added to or took from the case as presented. It follows that the judgment of the Supreme Court must be and it is affirmed. I greatly regret that I cannot concur in the opinion of the court in this case, and the fact that the decision must cost two men their lives impels me to state, as briefly as I may, my reasons for dissenting from it. We have before us the record only in the case of Emilio Valdez. Valdez is described in the opinion of the trial judge as 'a highly educated man and very prominent both on account of his social standing and his wealth;' and by the supreme court as 'a recognized leader of an active political faction and a member of one of the richest, most powerful and influential families in the community.' He was convicted of lying concealed with another and of shooting, in the early evening, one Eusebio Yuson, also a man of prominence, as he was mounting an outside stairway to the second story of his village home. Pursuant to the practice of the Philippine Islands, the case was tried by a judge without the aid of a jury. The guilt or innocence of Valdez turns upon the testimony of one Juan Gatmaitan, who was found by the trial court to be so 'densely ignorant a man, of so low an order of intelligence and so lacking in instruction, both mental and moral,' that upon finding him guilty of participating in the murder, the court, on this account, reduced his sentence from death to life imprisonment. The supreme court says of him that he 'is a convicted cattle thief;' that 'his testimony in his own behalf is wholly unworthy of credit,' and that in his own case he repudiated all of his testimony in the Valdez case and testified in a manner 'so incoherent, irrational, and incredible as to cast doubt on all that he said in his own behalf.' To this we must add that this witness Gatmaitan first confessed to having murdered Yuson, without mentioning Valdez. That afterwards, but two months before the trial of Valdez, he made affidavit that he and one Mateo Arcilla went to Valdez's house during the early evening of the day of the murder, that Valdez there gave them a shotgun in the village street, and that then the two, without Valdez, went and concealed themselves on the lot of Yuson, and when he came home 'I (Gatmaitan) discharged both barrels of the shotgun at him at the same time and then ran to Valdez's house and delivered the shotgun to him.' Next he gave testimony, such as we shall see, on the trial of Valdez, and eight days later made oath in prison that the local constables had tortured him for three weeks, not allowing him to sleep day or night, and thereby had forced him to confess that he and Valdez had committed the murder, when the truth was he did not know who killed Yuson. Nine days after this, again under oath, he denied all torture and prosecution and says that his testimony on the trial of Valdez was true. And finally the supreme court says that on his own trial he repudiated his testimony in the trial of Valdez, denied all knowledge of the crime, and attempted to establish an alibi for himself. Such is the witness who tells the following amazing story on which Valdez is sentenced to death: I can neither read nor write. I never talked with Valdez but three times in my life. The first time I was looking for sugar cane seed and he said to me that 'he wished to win my friendship,' nothing else and we parted. The second time we met in Valdez's seed field and he offered me a business, which, according to his own statement, was an easy one. I asked him what kind of a business it was and he said to me . . . 'that I should kill Eusebio Yuson and that he would pay me 900 pesos ($450).' I told him I could not please him because I was very busy of my work and no one could release me in said work. And he told me to say nothing about it to anyone and thus we parted. The third time I met Valdez he came to my hut in my sugar cane fields about five o'clock of a Sunday evening (the evening of the murder) and he invited me to return to town and I rode with him in his calesa (carriage) to his home. During this drive of about an hour he said nothing to me. When we arrived at his house he left me in the street and went into the house. When the bell struck the time of evening prayer as he did not come down from the house I thought that he was praying and when he did come down from the house he said nothing to me but handed me a shotgun. Q. And what did you do when you received the gun? A. He still invited me to go to Loaon. Q. What did he do? A. He followed me. Q. Where did you go? A. To the house of Lieutenant Eusebio Yuson. He says that on the way to Yuson's house he and Valdez stopped at a store and one Figueroa came and told them that Yuson was already there, and they then approached Yuson's house and located themselves in the fence near the staircase (outside the house, leading to the second story), and when Yuson arrived Valdez ordered me to shoot. Q. And what did you do? A. I tried to shoot, but the gun would not go off. Q. And then—— A. He approached me and said, 'Son of a whore, he was able to go up and you won't shoot,' and he showed me how to shoot and right at that moment the gun went off. On cross-examination he says he pulled the two triggers and that the gun would not go off, and that then Valdez showed him how to shoot. 'I was holding the shotgun this way (indicating) and he was showing me how to shoot, SAYING, 'this way,' and without more ado the shot came out, the shot gun fell and I was frightened and ran away from the place and I know nothing more.' He says he had never handled firearms before, and did not know how to shoot a gun, and that he did not tell Valdez that he did not know how to shoot. The shot thus fired was the one fatal to Yuson. I shall not go into the testimony of the corroborating witnesses for the prosecution, Mateo Arcilla, who is described by the supreme court as 'a convicted wife murderer, sentenced to life imprisonment for that crime since he appeared as a witness at the trial of Valdez,' and Figueroa, who, with Gatmaitan and Arcilla, the trial judge says pleaded guilty, before a justice of the peace, to murdering Yuson, without implicating Valdez. The only motive suggested on the part of Valdez for murdering Yuson is a difference between him or his mother (it is not clear which) and Yuson about some boundary and water rights, which had been amicably settled four years before the murder, and an indefinite business rivalry, which is only remotely alluded to by the widow of the deceased. A careful reading of this entire record convinces me, and the opinions of the lower courts throughout proceed upon the assumption, that the conviction of Valdez could not be thought of except this story of Gatmaintan, which I have thus detailed from the record, is believed to be true. Under the authority of the decisions of this court in Wiborg v. United States, 163 U. S. 632, 658, 41 L. ed. 289, 298, 16 Sup. Ct. Rep. 1127, 1197; Clyatt v. United States, 197 U. S. 207, 49 L. ed. 726, 25 Sup. Ct. Rep. 429; and in Diaz v. United States, 223 U. S. 454, 56 L. ed. 505, 32 Sup. Ct. Rep. 250, Ann. Cas. 1913C, 1138, I have thus examined this record for the purpose of determining whether there is any substantial evidence to be found in it to warrant the conviction of the defendant, and my conclusion is that there is no such evidence, because, after making full allowance for differences of habit, of life, and of character of the persons involved and of the witnesses, I cannot conceive it possible that a man such as Valdez is described to be, even if he desired the death of an enemy or a rival (as to which there is no evidence), would bribe to shoot him, an entire stranger of the most ignorant type obtainable, who had never used firearms; should promise him money to commit the murder; should deliberately hand him, in the early evening, in a village street, the gun with which to shoot the victim; and then should go with the murderer to the scene and participate in the assassination by pulling the trigger which fired the fatal shot. Comment would be superfluous. The mere narration of the story makes it impossible for me to consent to making it the legal basis for depriving a man of his life, for the testimony of Gatmaitan is not merely mistaken testimony, due to faulty recollection or statement, but one of his series of stories is necessarily, consciously, and corruptly false, and therefore the other should not be relied upon; especially not in a capital case. It is not uncommon for ignorant and corrupt men to falsely charge others with doing what they imagine that they themselves, in their narrow minds and experience, would have done under the circumstances of a given case, and the surest check, often the only check, on such perjury, is to recognize the impossibility that men of larger instruction and resources and experience could have been guilty of such conduct. It is, of course, possible that Valdez committed or inspired this crime, but it is impossible to believe that he would have committed it in the crude, certain to be detected, manner described by Gatmaitan. This conclusion is arrived at putting wholly aside the defense of the accused, in which he took the witness stand, and, so far as the record shows, sustained himself through a searching cross-examination, in a categorical denial of the, to me, utterly incredible stories of the prosecuting witnesses. But even if the evidence in the case were deemed by me credible, I still should conclude that the judgment should be reversed for the purely legal reason which I shall now state. When the state closed its evidence in rebuttal, the prosecuting attorney requested the court (there was no jury) to view the scene of the murder. To this counsel for the accused assented, but with the request that 'no testimony be taken because it produced great confusion when trying to examine witnesses at the place of the occurrence.' To this request the prosecuting attorney replied: 'What Mr. Southworth says would be very advisable, but I believe it would be very advisable also not to dispense with the task in which the court may exercise its discretion, so that when said court arrives there it may ask of unknown persons where the deceased fell, where the wad was found, where Gatmaitan was, and where Mateo Arcilla was.' The court: The court has no objection to making that inspection after the defense has produced its rebuttal evidence, not showing in the record the result of said inspection. Mr. Southworth: We have no rebuttal evidence. The court: So that we may close the case? Mr. Chicote: Yes, sir. The court: Good; to-morrow you may present your arguments. The session of the court is closed. The record further shows that the judge visited the scene of the murder, that Valdez was confined in prison several miles away at the time of the visit, and that he was neither required nor invited to be present at the view. This visit to the scene by the judge without the presence of the accused is assigned as one of the reasons why a new trial should be granted, on the ground that such action violated § 5 of the Act of Congress of July 1st, 1902 [32 Stat. at L. 692, chap. 1369], known as the 'Philippine bill,' and also article 6 of the Amendments to the Constitution of the United States, providing that the accused 'shall enjoy the right to be confronted with the witnesses against him.' What was done by the judge at this view is the subject of much dispute and conflict of statement made in affidavits on motion for a new trial. A typical statement in the interest of the accused of what occurred is made by his attorney, who is described in the record as a reputable member of the bar, who stated that the widow of the deceased explained to the judge what she claimed had taken place on the night of the murder, pointing out where the deceased had fallen, and discussing many other matters in connection with the case, she weeping and wringing her hands all of the time that such interview was in progress, and that one Crockett, a constable, was active in indicating to the court various points and circumstances connected with the murder, all of this against objections made by counsel as to the conduct of the widow and Crockett. A typical affidavit introduced by the state was by the private prosecutor Buencamino, who stated that he was present at the view, that the judge 'neither received any evidence nor admitted any testimony referring to the case then being prosecuted against Valdez, and, according to my best recollection, I did not see the widow crying, but I saw her at a place distant from the judge. I also state that Captain Crockett did not give any evidence before the judge.' An assistant attorney for the government made affidavit that at no time did he see the widow crying or talking to the judge, or illustrating how her husband had fallen. However, a photograph of the scene at the time of the view indicates that it must have been a very unusual local event, for a large crowd was present, and in this photograph the widow is shown in a position which must have been very close to the judge, and it is very significant that there is no statement from the judge as to just what he did and as to what occurred at the view. It has long been familiar, textbook, law, that a viewing of the premises where the crime is alleged to have been committed is part of the trial. Thus, in Wharton's Criminal Law, 9th ed. vol. 3, § 707, it is said: 'The visit (of the jury) must be made in the presence of the accused, who is entitled to have all the evidence received by the jury taken in his presence.' And in Enc. of Pl. & Pr. vol. 22, p. 1059, it is said: 'In criminal causes the accused is entitled to be present if the jury is sent to view the locus of the crime, as a view in the absence of the accused would violate his constitutional right to appear in person and be confronted with the witnesses against him.' But the law upon this subject has been recently summed up by this court (Diaz v. United States, 223 U. S. 442, 454, 56 L. ed. 500, 505, 32 Sup. Ct. Rep. 250, Ann. Cas. 1913C, 1138) in an admirable statement, which, in my judgment, rules the case before us, and is as follows: 'We are thus brought to the question whether the provision in § 5 of the Philippine Civil Government Act, securing to the accused in all criminal prosecutions 'the right to be heard by himself and counsel,' makes his presence indispensable at every stage of the trial, or invests him with a right which he is always free to assert, but which he also may waive by his voluntary act. Of course, if that provision makes his presence thus indispensable, it is of no moment that the Philippine laws do not go so far, for they cannot lessen its force or effect. An identical or similar provision is found in the constitutions of the several states, and its substantial equivalent is embodied in the 6th Amendment to the Constitution of the United States. It is the right which these constitutional provisions secure to persons accused of crime in this country that was carried to the Philippines by the congressional enactment, and therefore, according to a familiar rule, the prevailing course of decision here may and should be accepted as determinative of the nature and measure of the right there Kepner v. United States, 195 U. S. 100, 124, 49 L. ed. 114, 122, 24 Sup. Ct. Rep. 797, 1 Ann. Cas. 655. '. . . In cases of felony our courts, with substantial accord, have regarded it as extending to every stage of the trial, inclusive of the impaneling of the jury and the reception of the verdict, and as being scarcely less important to the accused than the right of trial itself. And with like accord they have regarded an accused who is in custody and one who is charged with a capital offense as incapable of waiving the right; the one, because his presence or absence is not within his own control, and the other because, in addition to being usually in custody, he is deemed to suffer the constraint naturally incident to an apprehension of the awful penalty that would follow conviction. . . . 'The reasoning upon which this rule of decision rests is clearly indicated in Barton v. State, 67 Ga. 653, 44 Am. Rep. 743, where it is said by the supreme court of Georgia: "It is the right of the defendant in cases of felony . . . to be present at all stages of the trial,—especially at the rendition of the verdict,—and if he be in such custody and confinement . . . as not to be present unless sent for and relieved by the court, the reception of the verdict during such compulsory absence is so illegal as to necessitate the setting it aside. . . . The principle thus ruled is good sense and sound law; because he cannot exercise the right to be present at the rendition of the verdict when in jail, unless the officer of the court brings him into the court by its order." It is difficult to imagine a case which would show the value of this rule more strongly than the case we are considering. If the description of what occurred as given by counsel for the defendant is even approximately true, it is not improbable that even the most stoical judge might have been influenced by it, and the presence of the defendant might very well have had a counterbalancing influence, and, in addition to this, he was entitled to the benefit of any suggestion which he might have been able to make through his counsel. It is very clear to my mind that Diaz v. United States, supra, in principle rules this case, and that the viewing of the scene of the murder by the judge without the presence of the accused requires that it be reversed and a new trial granted. That the conclusion I have reached in this case is not idiosyncratic, or the result of an undue regard for a man's life when it is adequately proved to have been forfeited under the law, is, I think, sufficiently shown by the fact that two of the members of the supreme court of the Philippine Islands expressed their estimate of the case made against Valdez by this record in these terms: Moreland, J., dissenting: 'I dissent. I think that the least the accused is entitled to, under the facts and the law, is a new trial. I believe, however, that he is entitled to an acquittal upon the facts as presented.' And Grant T. Trent, J.: 'I dissent on the ground that the prosecution has not proved the guilt of the appellants of the crime of which they were convicted.' For the reasons thus stated, I am of opinion that this record does not show any credible testimony supporting the judgment, that, upon the authorities cited, it rests upon error of law gravely prejudicial to the accused, and that it therefore should be reversed and a new trial granted. I am authorized to say that the CHIEF JUSTICE concurs in this opinion.

246.US.498

A material part of the business conducted in Virginia by plaintiff in error-a foreign corporation-was intrastate, and the company was therefore subject to the licensing power of the State. 118 Virginia, 563, affirmed.

Plaintiff in error, an Ohio corporation, complains that the Supreme Court of Appeals of Virginia improperly affirmed an order by the Corporation Commission assessing a fine against it for transacting business in the state without certificate of authority required by law. 118 Va. 563, 88 S. E. 167. That court adopted and approved the Commission's opinion, which, among other things, declared: 'We are of the opinion that the facts of this case demonstrate beyond a peradventure that the Dalton Adding Machine Company is doing a substantial part of its business in this state in the following particulars: '(a) In bringing its machines into this state before selling them, and in maintaining a stock of machines for exhibition and trial, and in selling such machines in this state, after their transportation in interstate commerce has been concluded and they have become mingled with the general mass of property in this state; '(b) In renting such machines and collecting rents therefor from its customers in this state at will; '(c) In buying and exchanging machines for machines made by other manufacturers, and in selling such machines so received in exchange at will; '(d) In employing a mechanic in this state and entering into contracts for repairing of machines owned by persons in this state from time to time and collecting the charges therefor; '(e) In keeping on hand in this tate certain parts of machines and a stock of paper and ribbons suitable for use upon the machines, which are freely sold from time to time by its agent in Richmond to its customers. 'We think it perfectly apparent that in these particulars the business of the company in this state is not 'commerce among the states,' the freedom of which is guaranteed by the United States Constitution, but that such business, in every essential particular, is business which has been transacted by the company in this state in violation of the statutes referred to.' Beyond serious doubt the above specifications concerning the business carried on in Virginia are supported by the record. A material part of it was intrastate. Affirmed.

243.US.574

In an action against an interstate carrier for damage to goods shipped on a through bill of lading, the questions, (1) whether under the Carmack Amendment the lawful holder of the bill of lading may sue without proving ownership of the goods, (2) whether in view of stipulations in the bill of lading limiting liability there was evidence of negligence upon the part of the carrier sufficient to go to the jury, and (3) whether a recovery of freight paid the carrier by the shipper was allowable,-are questions which this court may review in a case coming from a state court. Under the Carmack Amendment the lawful holder of the bill of lading may sue the carrier for loss or damage to the goods without proving ownership of the goods; § 8 of the Interstate Commerce Act, 24 Stat. 382, in providing generally for liability of the carrier to "the person or.persons injured" is not in conflict with this specific meaning of the amendment. In an action against a carrier for damage to goods caused by delay in forwarding and delivery, where the carrier proves a strike and resulting congestion of traffic which, under the bill of lading, exempts it from liability if due care was observed to meet the situation, a refusal of the court to charge that the burden is on plaintiff to prove that such care was not exercised is at most harmless error when followed by instructions properly explaining that the carrier is not responsible for delay resulting from the strike, nor liable if not negligent in forwarding and delivering the goods, that such negligence is not presumed, and that the burden of proving it is on the plaintiff. Where a carrier defended upon the ground that delay in forwarding and delivering goods was due to proven conditions of traffic beyond its control due to a strike, evidence that the goods were received for shipment after the strike was over and that the delay was caused by preferring other goods in delivery, Held, sufficient evidence of negligence to go to the jury. When carrier and shipper agree that the basis for measuring damages for loss or damage to goods shall be their value at place and time of shipment, the amount of freight paid upon delivery may be added to the depreciation of such value caused by the carrier's default. Allowing the shipper to recover the freight paid is not objectionable as a rebate, preference or discrimination, where there is no attempt to evade the Interstate Commerce Act. Where goods are brought to destination in a damaged condition and sold at less than their value at shipment, the carrier is liable to refund freight paid if the damage resulted from its negligence. 88 N. J. L. 376, affirmed."

This is a consolidation of actions, each action expressed in a number of counts, and each count praying for the recovery of the sum of $500 for a carload of watermelons received, as it is alleged, and accepted by the railroad company to be transported and delivered within a reasonable time to plaintiff at Jersey City, New Jersey, and alleging that by reason of the failure so to transport and deliver, a large number of the melons were wholly lost and the remainder delivered in a bad and damaged condition. The car numbers are given, the places of receipt, all of which were in North Carolina, and the dates, all between July 26 and August 2, 1912, both dates inclusive. The answers of defendant denied the allegations of the complaint and set up, besides, the following defenses: If the property came into the hands of defendant for the purpose of transportation, it did so as to each and every count of the complaint under the terms and conditions of a certain bill of lading issued to plaintiff by the initial carrier of the property, pursuant to the provisions of the Interstate Commerce Act, constituting an express agreement whereby the defendant was to be relieved from any and all liability for damage to the property resulting from delay in transportation and delivery if the delay was caused by (a) a strike or strikes among defendant's employees; (b) an accumulation of freight at any point; (c) or by any other cause or causes over which defendant had no control. It is alleged that a strike did take place among defendant's employees and continued from July 9, 1912, to the 21st of that month, which strike was the cause of the alleged delay; also that an accumulation of freight did occur at Jersey City, which continued from July 9 to August 15 and beyond. It is further alleged as a defense that no claim for the loss or damage to the property was made in writing, as required by the respective bills of lading of defendant at the point of delivery of the property within ten days after its delivery, or after due time for its delivery to plaintiff, though it was agreed between plaintiff and defendant that such claim should be made at the time, place, and in the manner mentioned. Nor was there any claim for such loss or damage made in writing to defendant at the point of delivery or point of origin within four months after the delivery of the property, or after a reasonable time for delivery, though it was expressly agreed that such claim should be made at the time, place, and in the manner mentioned, and, if not so made, defendant should not be liable. It will be observed, therefore, that the basis of the action is that certain carloads of watermelons were received for shipment by defendant at certain places in North Carolina for transportation to and delivery at Jersey City, New Jersey, and that defendant failed to transport and deliver the same within a reasonable time, in consequence of which a large number of the melons were lost and the others delivered in a bad condition. In point of fact the melons were not delivered to defendant in North Carolina, but in such state to a carrier with which defendant had connections, and were delivered to defendant at Edgemoor, Delaware, to be transported from there to Jersey City, and were so transported. The melons were transported on through bills of lading issued by the initial carrier, which contained the stipulations upon which the defenses are based, to wit: (1) That the delay in transportation and delivery was caused by a strike, accompanied by demonstrations of violence over which defendant had no control and against which it could not contend; (2) that there was a congestion of freight, due to causes beyond its control; and (3) that claims for damages were not made within the time required by the bills of lading,—that is, within ten days in some cases, thirty days in others, and four months in others. The ultimate basis of these defenses is the Carmack Amendment to the Interstate Commerce Act. What this amendment requires of shipper and carrier becomes the question in the case. The case involves, as we have said, a number of actions tried together and submitted to one jury. Plaintiff was plaintiff in all of them and obtained judgment which was affirmed by the court of errors and appeals on the authority of another case of like kind. There was a stipulation which concentrated the issues and removed from controversy the amounts involved. For instance, as to the latter it was stipulated that the value of the melons at the time and place of shipment was $13,465, and that they were sold at the place of delivery for $8,895, being the best price which could be obtained for them, owing to their damaged condition. And it was further stipulated that the freight charges paid by plaintiff amounted to the sum of $5,484.59. As to the other elements, it was stipulated that the melons were received and accepted by defendant at Edgemoor, Delaware, for transportation to Jersey City, New Jersey, in accordance with the bills of lading; that the usual and customary time for transportation was about seven hours, under the most favorable circumstances; that plaintiff was, at the time of bringing the actions, and is now, the lawful holder of the bills of lading; that the melons were received at Edgemoor by defendant in apparently good order, but were in a damaged condition when delivered to plaintiff at defendant's delivery yard at Jersey City, and that claims for damages were duly made in writing, as required by the bills of lading. The cases are designated as the '64-count case,' the '13-count case,' and the '11-count case.' All of the bills of lading in the '64-count case,' one in the '13-count case,' and four in the '11-count case,' contain a provision exempting the carrier from liability for loss or damage resulting 'from riots or strikes.' Twelve of the bills of lading in the '13-count case' and seven in the '11-count case' provide that the carriers should 'not be liable for any injury to or decay of fruits or vegetables, or other perishable freight due to detention or delay occasioned by an accumulation of freight at any point . . . or to any other causes over which the carriers have no control.' And there is difference in times of demands. A motion is made to dismiss on the ground that no Federal question appears in the record, or alternatively, if one appears, it is without merit. In support of the contentions it is said the questions in the case are (1) whether, it being stipulated that plaintiff was the holder of the bills of lading, it was the owner of the melons at the time the shipments were made; (2) whether there was any evidence of negligence of defendant which should have been submitted to the jury; and (3) whether plaintiff was entitled to recover the freight paid by it. The first question involves the Carmack Amendment; and, considering it, the court of errors and appeals decided that 'any lawful holder of a bill of lading issued by the initial carrier pursuant to the Carmack Amendment . . . upon receiving property for interstate transportation, may maintain an action for any loss, damage, or injury to such property caused by any connecting carrier to whom the goods are delivered.' [88 N. J. L. 235, 96 Atl. 588.] Citing 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. We are not prepared to say that a contest of this view is frivolous, and the motion to dismiss is denied. Besides, it is contended that the shipments having been in interstate commerce, they are subject to and governed by the Interstate Commerce Act. Coming to the merits of the question, however, we concur with the court of errors and appeals in its construction of the Carmack Amendment. It provides: 'That any common carrier . . . receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder [italics ours] thereof for any loss, damage, or injury to such property caused by it. . . .' [34 Stat. at L. 595, chap. 3951, Comp. Stat. 1913, § 8592.] The crucial words are 'lawful holder.' Defendant contends that they mean 'the owner or someone shown to be duly authorized to act for him in a way that would render any judgment recovered in such an action against the carrier res adjudicata in any other action.' And § 8 of the Interstate Commerce Act is referred to as fortifying such view. It provides that 'such common carrier shall be liable to the person or persons injured' in consequence of any violations of the act.1 To accept this view would make § 8 contradict the Carmack Amendment (§ 20), it having only a general purpose, whereas the purpose of the amendment is special and definitely expresses the lawful holder of the bill of lading to be the person to whom the carrier shall be liable 'for any loss, damage, or injury' to property caused by it. Adams Exp. Co. v. Croninger, supra. The next contention of defendant is that there was error in applying the burden of proof upon the motion to direct a verdict for defendant. The grounds of the contention urged at the trial and now repeated are that, by certain of the bills of lading, the carrier is relieved from liability in case of a strike, by certain others in case of delays occasioned by causes beyond its control, and by others in case of an accumulation of freight proved to be a matter beyond the control of the carrier. And these causes having been proved, it is contended the carriers were brought within the protection of the stipulation, and it became incumbent upon plaintiff to show that defendant, in one way or another, failed 'to handle the situation at that time in a way which was free from negligence.' It was and is contended that the whole issue was shifted 'form the general allegation of negligence to the allegation that the injury was caused because the defendant failed to perform the duty which it was obliged to perform under the law.' Counsel concede that the whole question was whether, when the proof was that 'there was the excepting cause,' defendant did what it 'should have done to meet the situation;' and the burden was upon the plaintiff to show that the carrier did not do what it 'ought to have done.' The court rejected the contention. It replied that merely proving an accumulation of freight or a strike did not shift the burden of proof, but that to complete its defense the carrier must show that the strike or the accumulation of freight caused the delay in executing its contract to deliver the property. If we should grant that the ruling was technically erroneous, its effect in the case can hardly be estimated, in view of the instructions of the court to the jury, entirely considered. They are too long to quote, but we may say of them that they were very carefully expressed to give the jury the elements of decision. The court told the jury that defendant had proved a cause beyond its control; that is, a strike; and, at the request of defendant, further instructed that if no negligence on the defendant's part was shown, defendant was not liable, and that the burden of proving such negligence was upon the plaintiff. A like instruction was given as to any cause beyond defendant's control, including an accumulation of freight, if reasonable care was exercised by defendant to relieve the situation, that negligence was not to be presumed, but must be affirmatively proved; and that the burden of proving it was upon plaintiff. 'The question is,' the court said, 'whether or not, in the light of what occurred over there, the defendant in this case has been shown by the greater weight of the evidence to have been negligent in the forwarding and the delivery of this freight. If it has been, why these plaintiffs are entitled to recover and to have you assess their damages, unless some of these other defenses have been made out by the greater weight of the evidence. If the defendant has not been shown to have been negligent in the particular indicated, why, then, manifestly, the defendant is not responsible, and the verdict in all the cases where these rules apply would have to be for the defendant.' Defendant, however, contended that there was not sufficient evidence of negligence to justify the submission of the case to the jury. Counsel, in attempted support of the contention, select certain elements in the case, ignoring others and their probative value. That is, counsel ignore the fact, of which there was evidence, that the melons were received for shipment after the strike was over, and the fact, of which there was evidence, that the delay in delivery was caused by the use by defendant of tracks where melons were usually delivered for the delivery of peaches, usually delivered elsewhere, to the exclusion of melons, which were placed in storage tracks at the 'meadows.' The fourth contention is that plaintiff should not recover as part of its damages the freight paid upon delivery at destination. The contention is rested upon the prohibition of the Interstate Commerce Act against deviation from the filed tariffs and schedules and against rebates and undue preferences and discriminations. It is not asserted in the present case that there was an evasion of the statute or an attempt to evade, but that the possibility of such result makes the recovery of freight illegal. It is urged, besides, that the melons were carried to destination and were there sold by plaintiff or on its account, and that freight thereby accrued and was properly paid. For which 2 Hutchinson on Carriers, 3d ed. § 802, is cited. But the cited authority shows that to be the rule when the loss or damage results from no fault or negligence of the carrier. And, besides, to the contentions the plaintiff opposes the terms of the bills of lading, they providing that the amount of loss or damage for which a carrier is liable 'shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges, if paid) at the place and time of shipment. . . .' Some of the bills of lading do not contain this provision, but it was agreed at the trial that the proper measure of damages was to be computed upon the basis of the value of the property at the place and time of shipment and that such measure should be read into all of the bills of lading. As plaintiff further says, to recover the damages sustained by it, based upon this value, plaintiff must receive from defendant the difference between this value and the proceeds of the sale, and the freight paid. In this we concur, and therefore there was no error in including in the recovery such freight. Shea v. Minneapolis, St. P. & S. Ste. M. R. Co. 63 Minn. 228, 65 N. W. 458; Davis v. New York, O. & W. R. Co. 70 Minn. 37, 44, 72 N. W. 823; Horner v. Missouri P. R. Co. 70 Mo. App. 285, 294; Tibbits v. Rock Island & P. R. Co. 49 Ill. App. 567, 572. The plaintiff was no more than made whole. Affirmed.

244.US.258

A state taw requiring a street car company to carry city detectives free when in the discharge of duty, Held not an arbitrary or unreasonable exercise of police power. A state law requiring a street car company to carry city detectives free while in the discharge of duty is a valid exercise of a reserved power to amend the company's charter. 87 N. J. L. 192; id., 332, affirmed.

These cases were argued together. In each the New Jersey statute (Pamph. Laws 1912, p. 2351) requiring street railway companies to grant free transportation to police officers while engaged in the performance of their public duties is assailed as invalid under the 14th Amendment. In each a prosecution for assault and battery was brought against an inspector employed by the Public Service Railway Company of Jersey City, for ejecting a city detective who refused to pay his fare. Both detectives were in plain clothes, but showed their badges and claimed the right to ride free of charge. Both detectives were on duty at the time,—one was on his way to report at headquarters; the other to interview the victim of a robbery. The defense in each case was the unconstitutionality of the statute and that the detective, having wrongfully refused to pay his fare, was ejected with no more than necessary force. The police justice, before whom the prosecutions were instituted, found the defendants guilty and fined them. These judgments were affirmed in successive appeals to the supreme court and to the court of errors and appeals of New Jersey. 83 N. J. L. 46, 84 Atl. 1057; 87 N. J. L. 192, L.R.A. ——, —, 94 Atl. 788. The case comes here on writ of error. The supreme court of New Jersey said: 'Policemen are frequently required to be on street cars in the execution of their duties to preserve the peace, to enforce ordinances, and to prevent or detect crime. It would be difficult to say that the mere presence of a police officer might not be of value for securing these objects . . . at any rate, the legislature might reasonably think so, and legalize his presence on the car without payment of fare.' Freedom to come and go upon the street cars without the obstacle or discouragement incident to payment of fares may well have been deemed by the legislature essential to efficient and pervasive performance of the police duty. Increased protection may thereby enure to both the company and the general public without imposing upon the former an appreciable burden. If any evidence of the reasonableness of the provision were needed, it could be found in the fact that such officers had been voluntarily carried free by the company and its predecessors for at least eighteen years prior to July 4, 1910, when the practice was prohibited by the Public Utilities Act (Pamph. Laws 1910, p. 58). In the following year such free transportation was expressly permitted (Pamph. Laws 1911, p. 29), and it was made mandatory by the act here in question. We cannot say that the requirement that city detectives not in uniform be carried free on street cars when in the discharge of their duties is an arbitrary or unreasonable exercise of the police power. Furthermore, the charter of the Railway Company was subject to alteration in the discretion of the legislature (N. J. Const. art. 4, § 7, ¶11; Pamph. Laws 1846, p. 17). The obligation to carry free city detectives engaged in the discharge of their duties is a burden far lighter than others imposed upon street-using corporations which have been sustained by this court as a valid exercise of the reserved power.2 The statute is broad in scope, extending also to all 'uniformed public officers;' but the court below expressly confined its decision to the case presented, sustaining the law 'in so far as it applies to police officers;' and our decision is likewise so limited. The judgments are affirmed. Mr. Justice McKenna and Mr. Justice Pitney dissent.

243.US.40

Upon a state of facts not substantially different from those presented in McCluskey v. Marystille & Northern Railway Co., ante, 36, Held, that the defendant in error in hauling its logs from its own timberlands over its own railroad to tidewater (origin, destination and transit all being in the same State) for sale to others who subsequently disposed of them or their manufactured products partly in other States, was not engaged in interstate or foreign commerce, and that the injuries suffered by the plaintiff while loading logs upon one of defendant's cars were therefore not remediable under the Federal Employers' Liability Act. 220 Fed. Rep. 295, affirmed.

This case is controlled by the decision in McCluskey v. Marysville & N. R. Co. just decided (243 U. S. 36, 61 L. ed. 578, 37 Sup. Ct. Rep. 374). As in that case, the suit was brought under the Federal Employers' Liability Act to recover damages for injuries suffered while Bay, the plaintiff in error, was employed by the defendant on its logging railroad. The accident which gave rise to his injuries occurred while he was engaged in loading on a flat car on defendant's timber land, logs which had been cut for carriage on the railroad to tidewater at Puget Sound. The case was tried by the same court which heard the McCluskey Case, there was a directed verdict, for the defendant on the ground that the company was not engaged in interstate or foreign commerce when the accident occurred, and the judgment thereupon entered dismissing the suit was affirmed by the court below on the authority of the McCluskey Case, 136 C. C. A. 277, 220 Fed. 295. The facts were thus stated by the court below: 'The Logging Company owned extensive tracks of timber in Snohomish county, Washington, and was engaged solely in cutting logs on its own lands and hauling them over its own road to the waters of Puget Sound, where it dumped them from the cars into a boom. At that point it sold the logs to purchasers who paid for them there, and there took possession of them and towed them away by tugs. The most of the logs were sold to near-by mills on the Sound, which were engaged in the manufacture of lumber, and this lumber, when manufactured, was for the most part ultimately disposed and shipped to points outside of the state of Washington. In addition to these transactions in logs, the Logging Company had at times taken out some poles, which also it sold and delivered at its boom to the National Pole Company, a purchaser which did business at Everett, and which bought and paid for the poles after they were delivered in the water, and thereafter sold them for shipment to California. The road is a standard gauge logging railroad, and is operated as a part of the logging business of the defendant in error, and is connected by switches with the Great Northern and the Interurban roads; but those connections are used only for the purpose of bringing supplies to the company's logging camps. No logs or timber of any kind were at any time transferred to these other roads. One shipment of steel rails had gone over the logging road for the Interurban at the time when the latter was constructing its road. For that service the actual expense of operating the locomotive was the only charge made, and the Interurban assumed all liability on account of accidents occurring in the transportation.' As these facts are not substantially different from those presented in the McCluskey Case, it follows that the reasoning and authorities by which the court below sustained its ruling in that case also demonstrate the correctness of its conclusion that in this case, at the time the injuries were suffered, the defendant was not engaged in interstate or foreign commerce. Affirmed.

246.US.396

The District Court has jurisdiction over a suit in which a telephone company, occupying streets of a city under ordinances passed pursuant to state law, seeks to enjoin, as an unconstitutional impairment of its contract rights and as involving a destruction of its property in violation of the due process clause of the Fourteenth Amendment, the execution of a later ordinance or resolution by which the city declares the company's rights at an end, assumes power to terminate them, notifies it to remove its lines and exchange and declares a purpose to take steps to secure their removal. In a suit by a telephone company against a city involving the question whethei plaintiff's right to operate its city exchange system was included with its right to operate its long distance system under a later, existing ordinance contract, or was confined to an earlier ordinance contract which had expired, the state supreme court in another case between the parties having treated the ordinances as independent in adjudging the city entitled to share in the gross receipts under a provision of the former not contained in the latter, held, that the judgment, if not actually conclusive upon the District Court, must be accepted as of much weight in determining whether the later ordinance replaced the earlier and gave new contract rights to operate the city exchange. Grants of rights or privileges by a State or its municipalities are strictly construed; what is not unequivocally granted is withheld; nothing passes by mere implication. Having granted anonexclusive right to use streets, etc., for the operation of a local telephone exchange, under which a local system was established, a city passed an ordinance granting the privilege of operating "long distance telephone lines" "within and through" the city, for supplying facilities to communicate "by long distance telephone" or other electrical devices, with parties residing "near or at a distance from" the city; and then another changing the word "lines" to "system," and expressing the proposed communication as with parties residing "in, near or at a distance from" the city. The grantee under the later ordinances acquired the local system, and was also engaged in supplying the city with long distance telephone service. Held, that it would be unjustifiable implication to construe the last ordinance as granting a new term for the local exchange system, and such implication could not be supported by interpreting the term "long distance telephone," apart from its usual meaning, as describing the character of instruments and instrumentalities to be employed rather than their sphere of operation. Reversed.

Counsel agree that the issues on this appeal are: (1) The jurisdiction of the District Court. (2) The scope and interpretation of ordinances Nos. 174 and 180. (3) Whether the judgment pleaded by the city is res judicata. The first proposition needs but little comment. The company attacked the ordinance or resolution of the city requiring the company to remove its poles and wires from the streets as an impairment of the contract constituted by other ordinances and hence invoked against the city the contract clause of the Constitution of the United States and also, on account of the asserted destruction of its property, urged in its protection the due process clause. The city combated both propositions. The District Court, however, sustained both, resting its decision upon the opinion of the Supreme Court of the state in a suit by the city against the telephone company. City of Mitchell v. Dakota Central Telephone Co., 25 S. D. 409, 127 N. W. 582. We shall presently consider this case. For the disposition of the present contention it is enough to say the case was brought by the city to recover a percentage of gross receipts of the company as provided in ordinance 135. In resistance the company contended that the provision was inserted without authority and was illegal and void and contended besides that its rights in the streets were not derived from the city but from section 554 of the Civil Code of the state and that it was not competent for the city to impose conditions upon the company. The court rejected the contentions and held that under the Constitution of the state the city had the right to grant or withhold its consent to the use of its streets, and it necessarily had the right to grant the same upon such terms and conditions as it might to choose to impose. Applying the case, the District Court sustained the validity of ordinance No. 135, but decided that it expired by limitation of time in May 1913, and that necessarily the rights granted by it terminated on that date, and that the company's rights, if it had any, were derived from ordinance 180 and the resolution of April 10, 1907.1 The court considered the former a valid exercise of the p wer of the city and a contract between it and the company which was impaired by the subsequent resolutions. It will be seen, therefore, that the company invoked rights under the Constitution of the United States and the District Court considered them to be substantial, not formal, and accordingly exercised jurisdiction. The second and third propositions mingle in discussion. The District Court decided, as we have said, that ordinance 180 constituted a contract between the city and the company, and, exerting the right to interpret it, further decided that it gave the company the right to occupy the streets and compelled an injunction against the city's resolution and attempt to remove it. We shall spend no time in vindication of the exertion of the right; it is an established right of the federal courts, when the contract clause of the Constitution of the United States is invoked, and we pass immediately to the consideration of ordinance No. 180. As we have seen, it was preceded by some years by ordinance No. 135, and by some months by ordinance No. 174. It was passed, it is contended, to complete the latter; in what respect we shall presently consider. The case centers upon the ordinance. The telephone company contends that it gives the company the right to operate not merely long distance lines, but a local telephone exchange within the city. In other words, the contention is that it superseded ordinance No. 135 and became a new source of right, a right both of long distance and local exchange. The city opposes this construction and insists that it, the ordinance, confers only the right to maintain a long distance system; that the right to a local exchange was given by ordinance No. 135 and expired with the expiration of that ordinance, May, 1913. And the city urges that its characterization of ordinance No. 180 was sustained by the Supreme Court of the State in City of Mitchell v. Dakota Central Telephone Company, supra. Counsel are at odds as to the case. It, as we have seen, was brought by the city against the company to recover a certain percentage of the gross receipts of the company, provided to be paid by section 4 of the ordinance No. 135. One of the defenses of the company was that that ordinance was in effect repealed and superseded by ordinance No. 180 so far as it related to the payment of the percentage of the gross proceeds of the company. The Supreme Court decided against the defense, reversing the judgment of the trial court. The court, in answer to the contention of the company, held that ordinance No. 180 did not 'have the effect of repealing, qualifying, or modifying ordinance No. 135, and the fact that the defendant [the company] paid the 10 per cent. on its gross proceeds for two years subsequently to the adoption of ordinance No. 180 clearly shows that it did not claim, for a time, at least, that ordinance No. 180 in any manner affected the prior ordinance. * * * There is clearly no inconsistency between the two ordinances; one being for a local city telephone system, and the other being for a long distance telephone system.' The court also decided that the resolution of the city of April 10, 1907, had not the effect of repealing ordinance No. 135, but had only the purpose of giving to the company permission to place its wires underground instead of stretching them on poles in the streets. The decision would seem to need no comment. It clearly adjudged that the ordinances had different purposes, and that ordinance No. 135 was not repealed in any particular by No. 180, the former applying to the local system and the latter to the long distance system. The District Court, however, did not give the decision this broad effect but considered that it concluded only 'that the two ordinances did not cover so exactly the same field and scope that it could be fairly said that the city intended by the passage of ordinance No. 180 to repeal ordinance No. 135.' It is not very obvious how ordinance No. 135 could exist for one purpose and not for all the purposes for which it was enacted; how it could exist for the exaction of a revenue from the system and not exist for the system; how it could coexist for nine years with No. 180 and yet have been superseded by the latter. Besides the Supreme Court distinguished between the two ordinances, declaring that there was no inconsistency between them, 'one being for a local city telephone system, and the other being for a long distance telephone system.' The decision, indeed, gave emphasis to the distinction. From the operation of one a revenue was exacted, upon the other no condition was imposed. It is, however, alleged in the bill that the company had by certain enumerated acts acquired a vested right to maintain and operate its telephone exchange and lines, and to secure its peaceable enjoyment of such rights as against the wrongful acts of the city it brought this suit. This idea is not pressed in the argument and is not sustained by the stipulated facts. The case is rested upon 'the scope and interpretation to be placed upon ordinances Nos. 174 and 180,' the contention being that they constitute a contract the obligation of which the resolution of the city requiring the removal of its, the company's, poles and wires from the streets, impairs. And such was the decision of the District Court. The basis of the contention and decisions is that those ordinances superseded ordinance No. 135, taking the place of the latter, giving all the rights of a local exchange as the latter did and adding to them the rights of a long distance system; and this conclusion is deduced from the words of the ordinances and explanatory circumstances, the necessary connection, it is said, and the utility of the local system to the long distance system. First as to the title of the ordinances and the words of each that are said to be determinative of their meaning. The title of No. 174 is as follows: 'An ordinance to grant permission to the Dakota Central Telephone Lines (Inc.), their successors and assigns, the right to erect poles and fixtures, and to string wires for the purpose of operating long distance telephone lines, within and through the city of Mitchell, South Dakota.' Section 1 provides that 'the right and privilege given' shall be for a period of twenty years 'for supplying the citizens of Mitchell, and the public in general, facilities to communicate by long distance telephone or other electrical devices with parties residing near or at a distance from Mitchell, and all such rights to be continued on the conditions therein named.' The title of ordinance No. 180 is exactly the same as that of No. 174, except that the word 'lines' of the latter is changed to the word 'system' by the former. Section 1 of No. 180 is the same as section 1 of No. 174, except certain immaterial changes and except the word 'in' in the provision expressing the purpose of the granted privilege to be 'to communicate by long distance telephone or other electrical devices, with parties residing in, near or at a distance from Mitchell. * * *' Stress is put upon the words 'system,' 'within,' 'through,' 'in,' and 'near,' and it is insisted that they were necessarily intended to accommodate the residents of the city and to give them the facilities of local and long distance telephone service and that something more was intended than to give them a mere right to carry long distance telephone wires through the city. The contention has its strength and persuaded the District Court, but it is countervailed by other considerations. Undoubtedly the inducement of ordinances Nos. 174 and 180 was to give to the residents of the city long distance telephone facilities, but it cannot be said that granting such right inevitably or even naturally repealed or superseded the right to operate a local system which was given and then existed under ordinance No. 135, and which then had nine years to run. Besides, the decision of the Supreme Court is a factor of controlling strength. I explicitly decided that ordinances 135 and 180 had distinct purpose and operation and that the latter did not repeal or supersede the former. The issue was tendered by the company and the decision upon it is conclusive against the company. But if the decision be not given that extent, as it was not by the District Court, and if it be considered that the latter court had a right, as a federal court, to determine the existence of a contract and its elements, such right does not preclude a deference to the views of the state court, which, moveover, have the support of principles declared by this court, that grants of rights and privileges by the state or of any of its municipalities are strictly construed 'and whatever is not unequivocally granted is withheld; nothing passes by mere implication.' Water Co. v. Knoxville, 200 U. S. 22, 34, 26 Sup. Ct. 224, 50 L. Ed. 353; Blair v. Chicago, 201 U. S. 400, 471, 26 Sup. Ct. 427, 50 L. Ed. 801. The contentions of the company in the case at bar rest entirely upon implication, the implication of a repeal of one ordinance by another, which is never favored, though the ordinances expressed different purposes and could, and did coexist for such purposes; and this implication is made to depend upon another, that is, that the ordinary meaning of the words 'long distance telephone' used in ordinance No. 180 is translated to signify and derive meaning from the function of the instrumentalities employed, such as transmitters, receivers, poles, wires, switching devices and battery systems, etc. We may conclude the discussion with the observation that if ordinance No. 180 had been intended to embrace and continue the right granted by ordinance No. 135 and to grant a further right of a long distance telephone system, there was a simple and direct way of doing it, clear to every understanding, and it would not have been left to be collected from disputable circumstances and the function of instruments known only to experts. At any rate, as it has been so left, the ambiguity resulting must be resolved against the telephone company. It should have taken care that the right it sought was clearly defined. It will be observed that the city expressly declares that it does not intend to interfere with or molest the telephone company in the maintenance and operation of the long distance system, and that the resolution or ordinance of which the company complains is directed only to the telephone system provided for in ordinance No. 135. After certain recitations and whereases it is as follows: 'Be it further resolved that said Dakota Central Telephone Company be, and it is hereby notified and requested forthwith, on the 11th day of May, 1913, to remove from the streets, avenues, alleys and public grounds of the city of Mitchell, South Dakota, all of its poles, wires, cables, fixtures and apparatus of every kind and description used by it in the construction, maintenance and operation of its local telephone exchange or system in the city of Mitchell, South Dakota.' Whatever is necessary, therefore, for the maintenance and operation of the long distance system provided for in ordinance No. 180 is not intended to be disturbed. We must leave the adjustment, however, to the District Court. Decree of the District Court reversed and the case remanded for further proceedings in conformity with this opinion.

244.US.184

Where lands, allotted as part of a Mexican community grant and for many years occupied, improved and claimed in good faith under color of such allotments and mesne conveyances, were excluded from the grant by a decree of the Court of Private Land Claims determining its boundaries, Held, that a continuance of such occupancy unfer the same and later mesne conveyances, with knowledge of the decree, was not a trespass of the character forbidden by the act to prevent unlawful occupancy of public lands (February 25, 1885, c. 149, 23 Stat. 321), but came within the exceptions of that act as an occupancy under claim and color of title made or acquired in gciod faith. 20 N. Mex. 264, affirmed.

Defendants in error brought suit in the district court, Dona Ana county, New Mexico, seeking judgment against plaintiff in error Smith upon his three notes for forty-five hundred dollars ($4,500) each, and also foreclosure of the mortgage upon lands in that county, given to secure them. Recovery was resisted upon the ground that although Smith was in actual possession of the lands under deed from Reinhart, they belonged to the United States and were unlawfully in the vendor's possession when so conveyed without bona fide claim or color of title, contrary to the Act of Congress approved February 25, 1885 (23 Stat. at L. 321, chap. 149, Comp. Stat. 1916, § 4997); and that the notes were given in part payment therefor. The state supreme court affirmed a judgment in the bank's favor. Quotations from its statement will suffice to indicate the essential facts (20 N. M. 264, 148 Pac. 512). 'In 1851 the government of Mexico granted certain lands now embraced within the limits of Dona Ana county, this state, to the Colony of Refugio. The grant was similar to many others found in this state. Settlements were made upon it by many people, and individual allotments were made from time to time by the commissioners. 'The territorial legislature, by the Act of March 7th, 1884, constituted the owners of lands within the limits of the grant a body corporate and politic under the name and style of the Grant of the Colony of Refugio, under which they were authorized by said act to sue and be sued and have perpetual succession. 'Many years ago the lands involved in this litigation, embracing some 400 acres, were allotted to ten individuals, who subsequently, by separate deeds of conveyance, transferred the same to Leon Alvarez, probably some time in the 80's, but the date is wholly immaterial. From that time to 1909 various deeds were executed to diverse parties, all of whom had possession and cultivated and improved the lands. Something like six or seven thousand dollars, possibly more, have been expended in improvements on the land in constructing irrigation ditches. In 1909 W. H. Reinhart claimed to be the owner of the lands, under deeds of conveyance, and was in possession of the same. In that year he conveyed the same to D. B. Smith, the appellant here, receiving perhaps one half of the purchase money in cash, and to secure the balance took Smith's promissory notes, secured by a mortgage on the real estate. The notes aggregated $13,500. It is not disputed that Reinhart was the owner of said lands if the original allottees were invested with the legal title to the same. 'Some time prior to 1893, the grant was surveyed by Elkins & Marmon, and the lands in question here were within the limits of that survey. In 1893, the commissioners of the grant, acting under the power and authority conferred by the Act of March 7, 1884, instituted proceedings in the United States court of private land claims to have the title of said grant confirmed and settled. Leon Alvarez was one of the commissioners of the grant at that time and acting as such. The title of the grant was confirmed and a survey was ordered to determine what lands were embraced within the limits of the same. This survey was made by the surveyor general of New Mexico and reported to the court, and the title to the lands so embraced within the limits of such survey was confirmed in the Colony of Refugio. This survey, so made as aforesaid, embraced a smaller tract than did the Elkins & Marmon survey, and the lands in question here, together with the other lands, was without the limits of the survey made under the direction and by authority of the court of private land claims. The judgment of the court of private land claims establishing the boundaries and confirming the title to the lands within the limits of such survey, so made by the surveyor general of New Mexico, was entered in the year 1903, and from which no appeal was taken. 'The parties owning land without the limits of the grant as confirmed, but within the Elkins & Marmon survey, continued in possession thereof and resided thereon with their families, and dealt with said lands as though they had been invested with the legal title to the same. No action was ever taken by the United States, so far as the record discloses, to dispossess them, although the legal title to said lands was in the United States. In 1909, when the deed to Smith was executed by Reinhart, a bill was pending before Congress to validate the titles of the bona fide claimants to said lands, so found to be without the limits of the confirmed survey.' 'Said lands were for many years, before and after the Mexican cession to the United States, in good faith considered to be a part of the Refugio Colony grant, a Mexican community grant, and were so held in good faith, by the owners of the said grant; and that the commissioners of the said grant, in good faith, allotted and conveyed the said lands to certain members of said community who settled on the said grant; and that the titles and claims of the allottees thereto were passed and deraigned by a chain of sufficient mesne conveyance to the said W. H. Reinhart; and that said W. H. Reinhart and his predecessors in title and claim held, occupied, and possessed the said lands for more than fifteen years, under and by virtue of the conveyances from the commissioners of the Refugio Colony Grant and the said mesne conveyances; and that the said defendant D. B. Smith and his assigns now hold and possess and are cultivating the said lands under and by virtue of the said conveyances from the commissioners of the Refugio Colony Grant and the said mesne conveyances, and the said conveyance from the said W. H. Reinhart to defendant D. B. Smith, and subsequent conveyances from D. B. Smith to his said assigns.' 'The plaintiffs have such deed of conveyance from the Refugio Colony Grant owners and mesne chain of conveyances down to W. H. Reinhart and D. B. Smith and wife, as they plead in their reply, and such as defendants plead that they hold under. 'During the examination of a witness by plaintiff, Dionicio Alvarez, counsel for defendants made the following admission: "It is admitted by the defendants, for the purpose of shortening the testimony, that the parties mentioned in the chain of transfers from the Refugio Colony down to the date of the rendition of the decree of the court of private land claims in evidence were holders under the chain of title mentioned, in good faith, under color of title, and in good faith." Section 1, Act of Congress February 25, 1885, follows: 'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all inclosures of any public lands in any state or territory of the United States, heretofore or to be hereafter made, erected, or constructed by any person, party, association, or corporation, to any of which land included within the inclosure the person, party, association, or corporation making or controlling the inclosure had no claim or color of title made or acquired in good faith, or an asserted right thereto by or under claim, made in good faith with a view to entry thereof at the proper land office under the general laws of the United States at the time any such inclosure was or shall be made, are hereby declared to be unlawful, and the maintenance, erection, construction, or control of any such inclosure is hereby forbidden and prohibited; 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 inclosures, is likewise declared unlawful, and hereby prohibited.' Section 4 of the same act makes violation of any provision thereof a misdemeanor punishable by fine and imprisonment. The supreme court declared: 'Upon this appeal, the only question which requires consideration is whether the evidence shows that Reinhart had 'no claim or color of title made or acquired in good faith' to the land in question at the time he conveyed the same. If he did not, the judgment must be reversed; on the other hand, if he had color of title to the land, made or acquired in good faith, the judgment entered was proper and must be affirmed. . . . The deed from Potter to Reinhart constituted color of title, so that the only question of any practical importance for determination is whether Reinhart's title was acquired and held in good faith, within the meaning of the act of Congress.' And relying upon Cameron v. United States, 148 U. S. 301, 305, 37 L. ed. 459, 460, 13 Sup. Ct. Rep. 595, and Searl v. School Dist. 133 U. S. 553, 33 L. ed. 740, 10 Sup. Ct. Rep. 374, it held that although Reinhart was fully cognizant of all the facts, he, nevertheless, had a claim or color of title to the lands, made or acquired in good faith within the true intendment of the Act of 1885. With this conclusion we agree. In Cameron v. United States, supra, we said: 'The act of Congress [approved February 25, 1885] which forms the basis of this proceeding was passed in view of a practice which had become common in the western territories, of inclosing large areas of lands of the United States by associations of cattle raisers, who were mere trespassers, without shadow of title to such lands, and surrounding them by barbed wire fences, by which persons desiring to become settlers upon such lands were driven or frightened away, in some cases by threats or violence. The law was, however, never intended to operate upon persons who had taken possession under a bona fide claim or color of title; nor was it intended that, in a proceeding to abate a fence erected in good faith, the legal validity of the defendant's title to the land should be put in issue. It is a sufficient defense to such a proceeding to show that the lands inclosed were not public lands of the United States, or that defendant had claim or color of title, made or acquired in good faith, or an asserted right thereto, by or under claim made in good faith, with a view to entry thereof at the proper land office under the general laws of the United States. As the question whether the lands inclosed by the defendant in this case were public lands of the United States depends upon the question whether he had claim or color of title to them, the two questions may be properly considered together.' Without doubt Reinhart and his predecessors were upon the lands for more than fifteen years; and it is admitted that, prior to entry of the decree of the court of private land claims in 1903, their occupancy was under color of title and in good faith. We cannot conclude that further occupancy by those then in possession under bona fide claims, or their vendees, was rendered unlawful—criminal indeed—by the Act of 1885. They were not mere naked trespassers dishonestly seeking to appropriate public property, and they did not belong to that class of offenders intended to be hit by the act. Their claim deserved consideration, as plainly appears from the circumstances above narrated. This is further shown by 'An Act to Quiet Title to Certain Lands in Dona Ana County, New Mexico,' approved February 3, 1911 (36 Stat. at L. 896, chap. 35), through which Congress granted them the right to make entries of and receive patents to lands in their possession, and empowered the General Land Office to assist them, at public expense, in making proofs necessary to that end. Affirmed.

244.US.360

In an action under the Federal Employers' Liability Act the questions whether plaintiff was engaged in interstate commerce when injured, whether the railroad was negligent, whether he assumed the risk, and vhether he was a mere volunteer, will not evoke discussion by this court where there was adequate evidence upon them for submission to the jury, where there was no evident, material error in the charge, where both state courts below have sustained the judgment, and no special circumstances are present demanding comment. The Federal Employers' Liability Act does not allow the father a right of action for expenses and loss of service resulting from his minor son's injuries in addition to the son's right of action. The rights of action provided by the Federal Employers' Liability Act are exclusive as to the cases which it covers and no other can be added by the law of a State. New York Central R. R. Co. v. Winfield, ante, 147. 87 N. J. L. 651, affirmed in part and reversed in part.

By stipulation, these causes were tried together before the same jury and upon the same testimony. Michael Tonsellito, an infant seventeen years old, suing by his father, James Tonsellito, as next friend, and relying upon the Federal Employers' Liability Act, obtained a judgment for personal injuries suffered while employed by plaintiff in error—Number 239. These injuries, he alleged, resulted from negligence in constructing and maintaining its roadbed and in starting a locomotive without giving him a reasonable opportunity to climb thereon. James Tonsellito recovered for himself on account of expenses incurred for medical attention to his son and loss of the latter's services—Number 240. Both judgments were affirmed by the court of errors and appeals. 87 N. J. L. 651, 94 Atl. 804. Reversal is asked in the cause instituted by Michael Tonsellito because (1) he was not engaged in interstate commerce when injured; (2) no negligence by the railroad was shown; (3) he assumed the risk; and (4) he was a mere volunteer when the accident occurred. We think there was adequate evidence to justify submission of all these matters to the jury; and we are unable to say the charge contains material error. Both state courts have sustained the judgment; there are no special circumstances demanding comment; and it seems enough to announce our conclusion. Great Northern R. Co. v. Knapp, 240 U. S. 464, 466, 60 L. ed. 745, 751, 36 Sup. Ct. Rep. 399; Erie R. Co. v. Welsh, 242 U. S. 303, 61 L. ed. 319, 37 Sup. Ct. Rep. 116. The court of errors and appeals ruled, and it is now maintained, that the right of action asserted by the father existed at common law and was not taken away by the Federal Employers' Liability Act. But the contrary view, we think, is clearly settled by our recent opinions in New York C. etc. R. Co. v. Winfield, 244 U. S. 147, 61 L. ed. ——, 37, Sup. Ct. Rep. 546, and Erie R. Co. v. Winfield, 244 U. S. 170, 61 L. ed. ——, 37 Sup. Ct. Rep. 556 (decided May 21, 1917). There we held the act 'is comprehensive and also exclusive' in respect of a railroad's liability for injuries suffered by its employees while engaging in interstate commerce. 'It establishes a rule or regulation which is intended to operate uniformly in all the states as respects interstate commerce, and in that field it is both paramount and exclusive.' Congress having declared when, how far, and to whom carriers shall be liable on account of accidents in the specified class, such liability can neither be extended nor abridged by common or statutory laws of the state. The judgment in Number 239 is affirmed. In Number 240 the judgment below is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed. Mr. Justice Brandeis concurs in the result announced in No. 240.

246.US.544

Under Jud. Code, § 237, as amended by the Act of September 6, 1916, a final judgment of a state court is not reviewable by writ of error if no treaty or statute or authority exercised under a State or the United States was drawn in question. An objection that the judgment of a state court ordering sale of real estate denies due process to nonresident parties served by publication, in that the order was made before the service was complete under the state statutes, merely challenges the power of the state court to proceed to a decision, and this does not draw in question the validity of any authority exercised under the State, within the meaning of Jud. Code, § 237, as amended. Philadelphia& Reading Coal & Iron Co. v. Gilbert, 245 U. S. 162. Writ of error to review 83 Oregon, 348, 379, 388, dismised.

The statutes of Oregon provide that, when it becomes necessary to sell real estate of a decedent in order to pay his debts (L. O. L. §§ 1252-1270), the administrator shall file a petition therefor, and that a citation shall issue to heirs known and unknown 'to appear at a term of court therein mentioned, not less than ten days after the service of such citation, to show cause, if any exist, why an order of sale should not be made as in the petition prayed for.' Section 1254. The statutes also provide for the service of unknown or nonresident heirs by publication for 'not less than four weeks, or for such further time as the court or judge may prescribe.' Section 1255. In 1897 Charles W. Fletcher died intestate in Oregon. His administrator filed in the county court a petition for the sale of the decedent's real estate in order to pay debts; and the citation was ordered to be served upon the unknown or nonresident heirs by publication in a newspaper for four weeks. Publication was made in conformity to the order, the first publication being on June 17, 1902. Under the statute, the state court finds that the hearing on the petition should not have been held before July 24th. It was actually held on July 17th; and an order of sale was then entered by the county court under which the property was sold to Nelson, through whom Miner and Worden claim title by mesne conveyances. The deceased had left surviving two children who were nonresidents, Mrs. Stadelman and Henry H. Fletcher. Thereafter, these two and one Motley (a grantee from them of a part interest in the property) brought, in an appropriate state court of Oregon, an independent suit to quiet title and claimed to own the property on the ground that the order of the county court and the sale to Nelson thereunder were void. A decree was rendered by the trial court in their favor; and it was affirmed on appeal by the Supreme Court of the state, where two curative acts were unsuccessfully invoked to sustain the validity of the Miner and Worden title. 83 Or. 348, 355, 155 Pac. 708, 163 Pac. 585, 983. A petition for rehearing was filed; and on January 30, 1917, the Supreme Court reversed its decision and the decree of the lower court and dismissed the suit. It held that failure to observe the statutory requirement as to time for hearing was a defect rendering the order voidable merely and not void; that the defect did not operate to deprive the county court of jurisdiction; that the defects could have been availed of only in a direct attack; and that it afforded no basis for a collateral attack, in an independent suit, upon the order and the sale thereunder. 83 Or. 379, 155 Pac. 708, 163 Pac. 585, 983. This conclusion was confirmed by the same court upon a second petition for a rehearing. 83 Or. 388, 155 Pac. 708, 163 Pac. 585, 983. At the first argument of the case in the Supreme Court of Oregon, plaintiffs contended that to sustain the validity of the sale under the order of the county court would deprive them of their right to due process of law guaranteed by the Fourteenth Amendment. See memorandum opinion of this court, 246 U. S. 311, 38 Sup. Ct. 189, 62 L. Ed. ——, March 18, 1918. Upon this contention the case was brought here under section 237 of the Judicial Code. But under that section, as amended by Act of September 6, 1916, c. 448, § 2, 39 Stat. 726 (Comp. St. 1916, § 1214), a final decree of a state court of last resort can be reviewed here on writ of error only in a suit '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.' The judgment here involved was entered after the act of September 6, 1916, took effect. There was not drawn in question the validity of any treaty or statute. And challenging the power of the court to proceed to a decision did not draw in question the validity of any authority exercised under the state. Philadelphia & Reading Coal & Iron Co. v. Gilbert, 245 U. S. 162, 38 Sup. Ct. 58, 62 L. Ed. ——; Ireland v. Woods (March 18, 1918) 246 U. S. 323, 38 Sup. Ct. 319, 62 L. Ed. ——. The writ of error is therefore Dismissed.

246.US.255

The court may not review a judgment, of a state supreme court resting on a non-federal ground adequate to support it. Where the probate of the will of a full-blood Creek Indian was refused solely on the non-federal ground of mental incapacity, questions sought to be raised under acts of Congress, concerning the execution of the will, its legal effect, and the necessity for probate, held immaterial. An attempt to raise federal questions through an application to file a second petition for rehearing in the state court comes too late. Writ of error to review 153 Pac. Rep. 1173, dismissed.

This is a writ of error to the Supreme Court of Oklahoma, which affirmed on appeal the judgment of the district court declining to probate an alleged will of Bruner, a full-blood Creek Indian, who, in the year 1912, died in that state possessed of his allotment, a bachelor without surviving parent. Act April 26, 1906, c. 1876, 34 Stat. 137, relating to the Five Civilized Tribes, by section 19, prohibits members, for a period of twenty-five years, from alienating lands allotted to them; but by section 23 as amended by section 8 of Act May 27, 1908, c. 199, 35 Stat. 312, 315, provides that: 'Every person of lawful age and sound mind may by last will and testament devise and bequeath all of his estate, real and personal, and all interest therein: Provided, that no will of a full-blood Indian devising real estate shall be valid, if such last will and testament disinherits the parent, wife, spouse, or children of such full-blood Indian, unless acknowledged before and approved by a judge of the United States court for the Indian Territory, or a United States commissioner, or a judge of a county court of the state of Oklahoma.' Section 1 of the Acts of Oklahoma for 1909, chapter 41, provides: 'That no person who is prevented by law from alienating, conveying or incumbering real property while living shall be allowed to bequeath the same by will.' Bilby, the main beneficiary named in the alleged will, and Moffitt, the executor, had first petitioned for its probate in the county court, where the heirs contested on the grounds of mental incapacity and undue influence and also on the ground that Bruner was by law prohibited from alienating or conveying his land. Probate was denied on the last ground; and the proponents appealed to the district court where, as provided by the state law, it was tried de novo. That court after an advisory verdict of a jury, denied probate solely on the ground of mental incapacity; and the errors assigned in the Supreme Court were substantially, that the judgment of the district court was against the evidence. 153 Pac. 1173. The Supreme Court affirmed the judgment of the lower court and a petition for rehearing was denied without a statement of reasons. No federal question had been raised in the district court, nor apparently up to that time in the Supreme Court. But an application was then made for leave to file a second petition for rehearing; and in it proponents set up, among others, the claim that because Bruner was full-blood Creek Indian 'the execution of said will and the legal effect thereof and the necessity or nonnecessity of the probation of said will is thereby involved in this cause and presents federal questions.' We need not, however, consider this contention. For since the Supreme Court rested its judgment upon a nonfederal ground adequate to support it, the existence of a federal question is of no significance. Cuyahoga Power Co. v. Northern Realty Co., 244 U. S. 300, 37 Sup. Ct. 643, 61 L. Ed. 1153. And, besides, the attempt to raise it comes too late. St. Louis & San Francisco R. Co. v. Shepherd, 240 U. S. 240, 36 Sup. Ct. 274, 60 L. Ed. 622. The writ of error is Dismissed.

245.US.82

187 U. S. 606, 609. 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. value, unless directed otherwise by the Secretary of the Treasury; and that the Secretary's refusal to give a contrary direction was discretionary and not reviewable by the Board of General Appraisers or by the Court of Customs Appeals; and, upon these grounds, affirmed the Board's decision. Held, that the court had taken jurisdiction and decided the case upon its merits and that mandamus would not lie to compel it to inquire into and pass upon the Secre

This is a petition for a writ of mandamus to require the Judges of the United States Court of Customs Appeals to take jurisdiction of a certain cause, and to consider and decide the same upon its merits. The rule to show cause having issued, the judges made return, and set forth the proceedings in the Court of Customs Appeals, and averred that the court had decided the case of the petitioner, and if the writ of mandamus issued, it would only require the court to do that which it had already done. From the return and the record attached to the petition it appears: Park & Tilford, petitioner, imported certain merchandise at the port of New York under the Tariff Act of 1913. The collector of customs assessed and liquidated the duties at the entered value. The importer claimed assessment at the value decided upon on final reappraisement, which was less than the amount of the entered value. This claim was made under paragraph I of section 3 of the act of 1913, which provides: 'The duty shall not, however, be assessed in any case upon an amount less than the entered value, unless by direction of the Secretary of the Treasury in cases in which the importer certifies at the time of entry that the entered value is higher than the foreign market value and that the goods are so entered in order to meet advances by the appraiser in similar cases then pending on appeal for reappraisement, and the importer's contention shall subsequently be sustained by a final decision on reappraisement, and it shall appear that the action of the importer on entry was taken in good faith, after due diligence and inquiry on his part, and the Secretary of the Treasury shall accompany his directions with a statement of his conclusions and his reasons therefor.' Comp. St. 1916, § 5527. The importers entered the goods upon an invoice which stated the gross price and allowed 15 per cent. deduction therefrom; at entry the importers advanced the value by reducing the deduction to 6 per cent. At the time of entry the importer, in each case, made an addition to the invoice value to make market value, stating the additions were made to meet advances in similar cases then pending upon appeal for reappraisement. On appeal for reappraisement the goods were appraised at a value which differed from the invoice value, being 2 1/2 per cent. more than invoice price of the goods, and 6 1/2 per cent. less than the entered value. The petitioner requested the Secretary of the Treasury to reliquidate the entries, this the Secretary refused to do, stating his reasons as follows: 'You are advised that in all cases where the importer has failed to make a specific contention as to market value, the department regards the contention as being for the invoice value; and where the final reappraised value is below the entered value, but not as low as the balue contended for by the importer, it is the practice of the department to decline to authorize a reduction of the entered value, on the ground that the importer's contention has not been sustained. This practice is based upon the department's knowledge of the purpose and intent of the law, and is of such long standing that it will not make any change therein. 'You are advised therefore that if the entries enumerated within your petition come within the class mentioned above, the department's final action with reference thereto would necessarily be in accordance with its practice outlined above.' In a subsequent letter the Secretary reiterated this view, the petitioner protested, and the protest was submitted to the Board of General Appraisers, and was overruled, and the importer appealed to the Court of Customs Appeals. An inspection of the opinion of the court, which accompanies the petition, makes it apparent that the court did take jurisdiction of the case and decided it, placing its decision upon the ground that the statute requires the assessment made by the collector in the absence of a direction of the Secretary of the Treasury to the contrary. The court held that the Secretary's refusal to so direct the collector was not reviewable by the Board of General Appraisers nor by the Court of Customs Appeals, that neither the board nor the court could control the discretion lodged by the statute in the Secretary, and affirmed the decision of the Board. It is elementary that the writ of mandamus will not issue to require the court to make a particular decision, and may only be invoked where the purpose is to require action of a court of competent jurisdiction, where such court has refused to exercise the power of decision with which it is invested by law. We think it clear that the Court of Customs Appeals did take jurisdiction of the case of the petitioner on appeal from the order of the Board of General Appraisers, and decided it according to its interpretation of the statutes of the United States. These facts warrant the statements of the respondents in their return—that if the writ should issue, requiring a decision of the case, they could only repeat the decision which they have already made. The fact that the law makes the decision of the United States Court of Customs Appeals final in this class of cases does not broaden the authority of this court to issue writs of the character now invoked; it follows that the rule must be discharged. And it is so ordered.

244.US.617

When the Interstate Commerce Commission finds that interstate rates are unduly discriminatory as compared with competitive intrastate rates and orders that the discrimination be abated, a further finding that the interstate rates are not unreasonable implies an authority to the carrier to maintain them and to raise the competitive intrastate rates to their level. But findings that such discrimination exists and that the interstate rates are reasonable do not necessarily imply a finding that the intrastate rates are unreasonable; both may be reasonable and yet produce discrimination, which is a relative matter. An order of the Interstate Commerce Commission directing carriers to desist from discriminating against interstate commerce by charging lower rates for local competitive intrastate traffic, may properly leave to the carriers discretion to determine whether the discrimination shall be removed by lowering the interstate rates, or by raising the intrastate rates, or by doing both. Where the rates which a carrier seeks to alter, in avoiding the discrimination condemned by the Commission, are intrastate rates which have been fixed by state authority, the Commission's order will justify the carrier only in so far as the order makes definite the territory or places to which it applies. In cases where the dominant federal authority is exerted to affect intrastate rates, it is desirable that the orders of the Commission should be so definite as to the rates and territory to be affected as to preclude misapprL-hension. The territorial scope of the order of the Commission here involved is ascertained (the order being on its face somewhat indefinite) by referring from the order to the report accompanying and made part of it, and thence to the maps of the railroads over which the report states the appellant express companies operate. A state law (Laws South Dakota 1911, c. 207, § 10, as amended by Laws, 1913, c. 304) providing that no advance of intrastate rates may be made except after 30 days' notice filed with a board of railroad commissioners, and published; can not properly apply to changes in intrastate rates which a carrier seeks to make in obedience to an order of the Interstate Commerce Commission, to abate discrimination against interstate traffic. A suit by a State to enjoin carriers from advancing intrastate rates without first complying with state regulations will not be treated as a suit, beyond the jurisdiction of the state court, "to enforce, set aside, annul, or suspend in whole or in part" an order of the Interstate Commerce Commission (see Commerce Court Act, c. 309, 36 Stat. 539), where the Commission's order covers the proposed advances in part only, is not mentioned in the bill and is not relied on iff the answer as justifying them all. 38 S. Dak. -, modified and affirmed.

In 1912 the Interstate Commerce Commission entered upon a comprehensive investigation of express rates, practices, accounts, and revenues. Its report1 resulted in the establishment, on February 1, 1914, throughout the United States, of the so-called uniform zone and block system of rates in interstate transportation, and the prompt adoption, in forty states, of the same system in intrastate transportation.2 South Dakota did not adopt the national system. It adheres to a schedule of maximum express charges, known as Distance Tariff No. 2, which was promulgated by its Board of Railroad Commissioners in 1911, and which, on weighted average, is about 40 per cent lower than the Zone and block system. Shippers of Sioux City, Iowa, complained that the differences between these interstate and intrastate scales of rates resulted in unjust discrimination against them, to the advantage of their South Dakota competitors. Proceedings to secure relief were brought by them before the Interstate Commerce Commission; and on May 23, 1916, its report and order were filed. Traffic Bureau v. American Exp. Co. 39 Inters. Com. Rep. 703. This order,3 couched in general terms, prohibited charging after August 15, 1916 (later extended to September 15, 1916), 'higher rates for the transportation of shipments by express between Sioux City, Iowa, and points in the state of South Dakota, than are contemporaneously . . . demanded . . . for transportation under substantially similar circumstances and conditions for substantially equal distances between Sioux Falls, Mitchell, Aberdeen, Watertown, and Yankton, South Dakota, on the one hand, and said points in the state of South Dakota, on the other, which said relation of rates has been found by the Commission to be unjustly discriminatory.' The order made 'the report containing its findings of fact and conclusions thereon' a part thereof; and the report makes clear that the order applied only to competitive territory, and that this is the southeastern section of South Dakota. The report also declared 'that the South Dakota rates are too low to be made the measure of interstate rates between Sioux City and South Dakota points;' that the existing interstate rates 'have not been shown to be unreasonable;' that no reason has been presented for modifying them; and that the Commission is 'under no doubt as to how the unjust discrimination found to exist should be corrected;' but the report did not expressly state that the intrastate rates should be raised, nor did it enumerate the competitive points in South Dakota to which the rate adjustment should apply. In July, 1916, the express companies conferred informally with the Board of Railroad Commissioners about introducing in South Dakota complete intrastate tariffs corresponding with the zone and block system scale, and also about introducing special tariffs on that basis covering rates between the cities of Sioux Falls, Mitchell, Aberdeen, Watertown, and Yankton and all other points in the state. On August 5 the Board issued an order for a general investigation of express rates; and set for hearing on December 4, 1916, that investigation as well as the applications to put into effect these special or general tariffs. In an opinion then filed, it said: 'The rates which shall be put into effect to remove the discrimination found by the Interstate Commerce Commission to exist in favor of jobbers at Aberdeen, Watertown, Sioux Falls, Mitchell, and Yankton, and against Sioux City and its jobbers, have not yet been determined. As these rates are to apply on intrastate traffic and between stations and over lines wholly within this state, this commission [Board] is the proper tribunal to fix these rates. To permit the putting into effect of two systems of rates, one from the cities named and another from all other cities in the state, would create an intolerable situation.' On August 25, the express companies formally presented to the Board the special tariffs, to become effective September 15. And on September 12, the Board formally refused to allow the same to be filed, and rejected them, among other reasons, because the 'schedules have not been printed and published, and thirty days' notice of the time when the said proposed classifications, tariffs, tables, and schedules shall go into effect has not been given to the Board of Railroad Commissioners of the State of South Dakota, and to the public, as required by the provisions of § 10 of chapter 207 of the Laws of 1911.' On the same day the attorney general of South Dakota and the Board of Railroad Commissioners brought an original proceeding in the supreme court of the state against the American Express Company and Wells Fargo & Company to enjoin them from putting into effect the special tariffs covering all their rates within the state to and from the five cities named; and a restraining order was issued. The defendants complied with the restraining order; but filed an answer in which they set up the order of the Interstate Commerce Commission, and alleged that about August 15 they published certain express rate tables, but that 'all rates for the carriage of express matter intrastate throughout the state of South Dakota were left the same as provided in the South Dakota Express Disance Tariff No. 2, Exhibit A hereto, excepting the rates to and from the cities of Sioux Falls, Aberdeen, Watertown, Mitchell, and Yankton, and other South Dakota points; that to the business between said cities . . . and other South Dakota points there were applied the rates prescribed by the Interstate Commerce Commission, as hereinbefore set forth, for interstate traffic, between points within and points without the state of South Dakota; that excepting for the application of the Interstate Commerce Commission rates to traffic to and from said cities . . . no changes were made in the express tariffs throughout the state of South Dakota, as the same had previously existed under the provisions of the South Dakota Distance Tariff No. 2 . . .' There was in the answer no explicit allegation that no change in rates had been made except as required by the Commission's order.4 The plaintiffs demurred to the answer upon the ground that it did not state facts sufficient to constitute a defense to the suit. The demurrer was sustained, and defendants having elected to stand on their answer, a perpetual injunction was granted on December 5, which enjoined the express companies from putting into effect the special tariffs presented on August 25, 'or any of the rates, fares, or charges specified in said tables between the cities of Aberdeen, Mitchell, Sioux Falls, Watertown, or Yankton in the state of South Dakota and other stations of said express companies in said state . . . or . . . charges greater . . . than the maximum rates . . . of . . . Distance Tariff No. 2 . . . unless or until a schedule of express rates shall have first been submitted to the Board of Railroad Commissioners of the State of South Dakota and have been regularly approved and allowed by said board in conformity to the laws of the state of South Dakota.'5 A petition for writ of error to this court was allowed December 11, 1916. The record was filed here January 27, 1917, and included in it is the opinion of the supreme court of South Dakota, filed in the cause January 20, 1917. The reasons there given for holding that the order of the Interstate Commerce Commission is no justification for disregarding the order of the Board of Railroad Commissioners of South Dakota embody, in substance, the argument made here on behalf of the state's officials. 1. The nature of the Interstate Commerce Commission's order. In its specific direction the order merely prohibits charging higher rates to and from Sioux City than to and from the five South Dakota cities. It could be complied with (a) by reducing the interstate rates to the South Dakota scale, or (b) by raising the South Dakota rates to the interstate scale, or (c) by reducing one and raising the other until equality is reached in an intermediate scale. The report (which is made a part of the order) contains, among other things, a finding that the interstate rate which was prescribed by the Commission was not shown to be unreasonable. This finding gives implied authority to the express companies both to maintain its interstate rates and to raise to their level the intrastate rates involved. The Shreve port Case (Houston, E. & W. T. R. Co. v. United States) 234 U. S. 342, 58 L. ed. 1341, 34 Sup. Ct. Rep. 833. For, if the interstate rates are maintained, the discrimination can be removed only by raising the intrastate rates. But the finding that discrimination exists and that the interstate rates are reasonable does not necessarily imply a finding that the intrastate rates are unreasonable. Both rates may lie within the zone of reasonableness and yet involve unjust discrimination. Interstate Commerce Commission v. Baltimore & O. R. Co. 145 U. S. 263, 277, 36 L. ed. 699, 703, 4 Inters. Com. Rep. 92, 12 Sup. Ct. Rep. 844. Proceedings to remove unjust discrimination are aimed directly only at the relation of rates. If in such a proceeding an unreasonable rate is uncovered and that rate made reasonable, it is done as a means to the end of removing discrimination. The correction is an incident merely. 2. The power of the Interstate Commerce Commission. The supreme court of South Dakota declares: 'If the purported order of the Commission does, in any respect, regulate intrastate commerce, it is to that extent void, owing to the Commission's want of jurisdiction over the subject-matter.' [——S. D. ——, P.U.R.1917C, 475, 161 N. W. 132.] That court denies not only the intent of Congress to confer upon the Commission authority to remove an existing discrimination against interstate commerce by directing a change of an intrastate rate prescribed by state authority, but denies also the power of Congress under the Constitution to confer such power upon the Commission or to exercise it directly. The existence of such power and authority should not have been questioned since the decision of this court in the Shreveport Case. It is also urged, that even if the Commission had power, under the circumstances, to order a change of the intrastate rates, the order in question was invalid, because the Commission, instead of specifically directing the change, undertook to give to the carrier a discretion as to how it should be done and as to the territory to which it should apply. The order properly left to the carrier's discretion to determine how the discrimination should be removed; that is, whether by lowering the interstate rates or by raising the intrastate rates, or by doing both. In its general form the order is identical with that under consideration in the Shreveport Case. Where a proceeding to remove unjust discrimination presents solely the question whether the carrier has improperly exercised its authority to initiate rates, the Commission may legally order, in general terms, the removal of the discrimination shown, leaving upon the carrier the burden of determining also the points to and from which rates must be changed, in order to effect a removal of the discrimination. But where, as here, there is a conflict between the Federal and the state authorities, the Commission's order cannot serve as a justification for disregarding a regulation or order issued under state authority, unless, and except so far as, it is definite as to the territory or points to which it applies. For the power of the Commission is dominant only to the extent that the exercise is found by it to be necessary to remove the existing discrimination against interstate traffic. Still, 'certum est quod certum reddi potest.' Whether the order here involved is definite presents a question of construction which will be considered later. 3. The requirements of the state law. The South Dakota statute (1911, chap. 207, § 10, as amended 1913, chap. 304) provides that no advance in intrastate rates may be made except after thirty days' notice to the Board of Railroad Commissioners by filing of schedules, and to the public by publication and posting in every office of the carrier in the state. The special tariff here in question, which was presented to the Board informally at conferences in July, was not formally offered for filing until August 25. It was, by its terms, to take effect September 15; and notice to the public was not made as provided in the statute. But these provisions cannot be held to apply to changes in intrastate rates over which the Board has no control. The proper conduct of business would suggest the giving of some notice (as was done by the express companies in the instant case); but a valid order of the Commission is, when applicable, a legal justification for disregarding a conflicting regulation of the state law—because the Federal authority is dominant. 4. The scope of the order. If the general words of the order are read alone, they might perhaps be understood as applying to rates between the five named South Dakota cities and all other 'points' in South Dakota. But the order explicitly makes the report which is filed therewith a part thereof; and the order itself also qualifies the general words used, by the clause: 'Which said relation of rates has been found by the Commission to be unjustly discriminatory.' The report makes it thus perfectly clear that the order applies only to the 'points' in competitive territory, or, as the supreme court expresses it, those 'commercially tributary' both to the five cities and to Sioux City. That territory, as the report also shows, is the southeastern part of South Dakota; and as to this alone, the discrimination was found to exist. The express companies were not warranted by anything in the order in extending the special tariffs of rates to and from the five cities to include 'points' in every part of the state. As to all rate advances other than those in the competitive territory, their action was unauthorized. It is urged on behalf of the state officials that the order does not show with the necessary precision to what 'points' it applies; and that if not wholly void for indefiniteness, it at least cannot serve as a justification for failure to observe the regulations and orders imposed by authority of the state. In cases of this nature, where the dominant Federal authority is exerted to affect intrastate rates, it is desirable that the orders of the Interstate Commerce Commission should be so definite as to the rates and territory to be affected as to preclude misapprehension. If an order is believed to lack definiteness an application should be made to the Commission for further specifications. But the order, although less explicit than desirable, is, when read in connection with the railroad map, not lacking in the requisite definiteness. As the order is limited to the relation of rates to and from Sioux City and to and from the five South Dakota cities 'under substantially similar circumstances and conditions and for substantially equal distances,' and the report states that the American Express Company operates 'over the lines of the Chicago & Northwestern Railway Company and the Chicago, St. Paul, Minneapolis, & Omaha Railway Company,' and that the Wells Fargo & Company operates 'over the Chicago, Milwaukee, & St. Paul Railway Company,' it furnishes the necessary data for adjusting the rates in controversy. 5. The jurisdiction of the state court. It is urged that the supreme court of South Dakota erroneously assumed jurisdiction, because this proceeding is an attack upon an order of the Interstate Commerce Commission; that by the Act of Congress (36 Stat. at L. 539, 540, 543, chap. 309, Comp. Stat. 1916, § 993) exclusive power 'to enjoin, set aside, annul, or suspend in whole or in part any order of this Interstate Commerce Commission' was vested in the commerce court; and that by the Act of October 22, 1913, abolishing that court (38 Stat. at L. 219, chap. 32), the exclusive power was transferred to the several district courts. If this were a proceeding professedly 'to enjoin, set aside, annul, or suspend' an order of the Commission 'in whole or in part,' a state court would obviously have no jurisdiction. The bill does not purport to attack, nor does it even refer to, any such order. It alleges only that the express companies propose 'increases and advances' in charges for intrastate transportation, by introducing 'existing interstate rates.' It is the answer which sets up the order of the Commission as a justification; and plaintiffs deny that it is such. Whether or not the state court has jurisdiction cannot, of course, depend upon the professed purpose of the proceeding nor upon the mere form of pleading. An order may be as effectively annulled by misconstruction as by avowedly setting it aside. But we have no occasion to determine in the instant case under what circumstances and to what extent the effect of orders of the Commission may be questioned in state courts. The answer does not allege that all the intrastate rates to and from the five cities which have been advanced were advanced in compliance with the order of the Commission. It alleges merely that the rates applied were those prescribed 'for interstate traffic between points within and points without the state of South Dakota;'6 and it is clear that the special tariffs here in question include advances of rates between the five cities and many 'points' in the state to which the Commission's order did not apply. It could not, therefore, afford a justification for putting into effect those intrastate rates without first making the publication required by the state law and securing the approval of the state board. These rates the supreme court of South Dakota had jurisdiction to enjoin, and the decree must be affirmed to that extent. It is also clear that the decree of the supreme court, in so far as it enjoined the express companies from advancing any intrastate rate to and from the five cities until the same shall have been approved by the South Dakota Board of Railroad Commissioners, was erroneous. So far as it extends to rates in the competitive territory as to which discrimination was found to exist, it must be modified and the injunction dissolved. With this modification the decree of the state court is affirmed and the cause remanded for further proceedings not inconsistent with this opinion. It is so ordered. Mr. Justice McKenna dissents.

246.US.434

Railroad companies may be required, under the state police power, at their own expense, to make streets and highways crossed by their tracks reasonably safe and convenient for public use. Upon this principle, where a village street with business houses on both sides was intersected by a railroad right of way of which the central portion only was occupied by roadbed and tracks and was sufficiently planked for crossing purposes, heZd, that a requirement (under Minnesota Laws, 1913, c. 78, § 1) that a sidewalk be built to extend the street sidewalk across the right of way on either side of the planking, along one side of the street where people must fre. quently cro&s, could not be regarded as an arbitrary or unreasonable requirement depriving of due process or denying the equal protection of the laws. 132 Minnesota, 474, affirmed.

This suit was brought to compel the railroad companies to build a sidewalk on the south side of Bunde street in the village of Clara City, Minnesota, where the right of way of the railroad companies crosses that street. The right of way of the companies is of the width of 300 feet at the place where Bunde street crosses the same. At or near the center of this right of way the companies have constructed three railroad tracks. There are business houses upon both sides of the right of way, and it becomes necessary for people to cross the same frequently. The case was decided in the lower court in Minnesota upon demurrer to the petition in mandamus, and the record contains this statement: 'For the purpose of the demurrer it was admitted by relator that that part of the street in question which is occupied by the roadbed or tracks of the respondents was and is properly, securely and sufficiently planked the full width of the street, such planking extending the full length of the ties and between the tracks as in that particular required by statute; that the sole object and purpose sought to be attained in and by these proceedings is to compel the respondents to construct a sidewalk on one side of the street as it is located across the entire right of way, so that the sidewalk will connect with the said planking in either direction, but not so as to include in such construction the building of any sidewalk or crosswalk along that part of the street now occupied by said roadbed or tracks, which part is already sufficiently and securely planked for crossing purposes.' The general laws of Minnesota contain a provision requiring the planking of railroad crossings where the same cross a public street. Section 4256 of the General Statutes of Minnesota. By amendment of 1913 the following provision was added: 'And a suitable sidewalk shall be constructed by said company to connect with and correspond to sidewalks constructed and installed by the municipality or by owners of abutting property, but cement or concrete construction shall not be required in track space actually occupied by the railroad ties if some substantial and suitable sidewalk material is used in lieu thereof.' Laws of Minnesota 1913, chapter 78, section 1. The lower court in Minnesota dismissed the petition, which judgment was reversed by the Supreme Court of Minnesota, and the railroad company was required to construct the sidewalk at its own expense. 130 Minn. 480, 153 N. W. 879. The court held that the statute was a reasonable exercise of the police power of the state. The contention here made is that the statute as thus enforced denies to the companies due process of law and the equal protection of the law in violation of the Fourteenth Amendment to the federal Constitution. It is too well settled by former decisions of this court to require extended discussion here—that railroad companies may be required by the states in the exercise of the police power to make streets and highways crossed by the tracks of such companies reasonably safe and convenient for public use, and this at their own expense. Such companies accept their franchises from the state subject to their duties to conform to regulations, not of an arbitrary nature, as to the opening and use of the public streets for the purpose of promoting the public safety and convenience. This principle was applied by this court in C., I. & W. R. Co. v. Connersville, 218 U. S. 336, 31 Sup. Ct. 93, 54 L. Ed. 1060, 20 Ann. Cas. 1206, wherein the railroad, because of the extension of a street through an embankment upon which the railroad was built, was required to construct at its own expense a bridge across the street. In Northern Pacific Ry. Co. v. Duluth, 208 U. S. 583, 28 Sup. Ct. 341, 52 L. Ed. 630, it was held that a municipality of the state of Minnesota might require a railroad company to repair a viaduct constructed by the city after the opening of the railroad notwithstanding a contract relieving the railroad from making repairs thereon for a term of years, that the police power of the state was a continuing one, and could not be contracted away, and that uncompensated obedience to laws, passed in its exercise, did not contravene the federal Constitution. This case was followed with approval in St. Paul, Minneapolis & Manitoba R. Co. v. State of Minnesota, 214 U. S. 497, 29 Sup. Ct. 698, 53 L. Ed. 1060. In Chicago, Milwaukee & St. Paul R. Co. v. Minneapolis, 232 U. S. 430, 34 Sup. Ct. 400, 58 L. Ed. 671, this court affirmed a judgment of the Supreme Court of Minnesota requiring a railroad company to build at its own expense a bridge required in order to permit a municipality in that state to construct a canal connecting two lakes within the limits of a public park. In the opinion in that case previous decisions in this court are collected and reviewed. The Supreme Court of Minnesota in the instant case held that the railroad companies might be required construct a sidewalk upon the right of way on both sides of the planked crossing. In the opinion of the court the sidewalk, leading to the crossing, tend d to promote the safety and convenience of the public, and, after discussing the well-established authority of the state to require planking at crossings, as to the additional requirement to build the connecting sidewalk, said: 'There can be no controlling difference between the requirement of sidewalk and of planking. Planking is, to be sure, more to prevent persons in vehicles from injury, or the vehicles or teams from damage, by being stalled on the crossing. But, where a crossing is much traveled, safety, to say nothing of convenience, may require a separate space, like a sidewalk, reserved for pedestrians. There is a peculiar peril to travelers on foot, where many vehicles pass and the attention of the drivers is diverted to looking out for trains liable to use the crossing. Again, unless a well-defined walk be provided, there is danger of pedestrians crossing the tracks at places unexpected to those in charge of trains or cars, not to mention the inconvenience where mud and impassable conditions compel those on foot to deviate from the street proper. 'It is said defendant, if obligated to lay a sidewalk across its right of way, might likewise be required to construct sidewalks along such right of way where it borders a highway or street. The sufficient answer is that the statute does not call for anything of the kind. 'The contention is also that defendant has so much larger right of way than it needs or occupies for its three tracks that for the greater distance the sidewalk, as a safety provision, is out of place. It is to be assumed that the right of way is such only as is needed for and devoted to railway purposes, and such as is rightfully exempt from taxes and assessments because of the payment of the gross earnings tax. Within its right of way defendant may at any time place additional tracks, or change the location of those it maintains, and, for that reason, it also seems proper that the safety of the passage for the traveler for the whole distance should be placed upon the railroad company. The statute merely prescribes that it shall maintain a sidewalk over its legitimate right of way to correspond and connect with the walk maintained under the supervision of the municipality, so as to afford the pedestrians a reasonably safe and convenient crossing.' This court considers a case of this nature in the light of the principle that the state is primarily the judge of regulations required in the interest of the public safety and welfare. Such statutes may only be declared unconstitutional where they are arbitrary or unreasonable attempts to exercise authority vested in the state in the public interest. We are not prepared to say that this statute is of that character, and the judgment of the Supreme Court of Minnesota is Affirmed.

243.US.549

The Oregon-California Railroad Grants (Acts of July 25, 1866, as amended, and May 4, 1870) made no distinction between land covered with timber and other land, nor between the timber or other incidents and the land itself; title to all was vested in the railroad company for transmission to actual settlers upon the terms prescribed by the acts. The substantial interest granted the company was the right to exact not more than $2.50 per acre in so disposing of the lands. Oregon & California R. R. Co. v. United States, 238 U. S. 393, discussed and followed. While the railroad company could use the lands as a basis of credit, it could not by trust deed convey an interest in either land or timber exempt from the obligations imposed by the granting acts or the power of the Government to compel their performance. The granting acts being not mere instruments of conveyance but laws reserving the right of alteration or repeal, Congress, to overcome a situation largely due to breaches of obligation by the railroad company which made the original scheme impracticable, had power without the company's consent to resume the title and provide for disposition of the land by the Government under conditions assuring the company the equivalent of its interest in the grants-not more than $2.50 per acre. The "Chamberlain-Ferris Act" of June 9, 1916, c. 137, 39 Stat. 218, examined and found to accord with the power of Congress and the principles laid down by this court in Oregon & California R. R. Co. v. United States, 238 U. S. 393. The former decision of this court having directed an injunction to hold the land and timber intact until Congress should have reasonable opportunity to make new provisions for disposing of them consistently with the interest of the railroad company, and an act having been passed accordingly after entry of the decree in the District Court, this court, upon a review of the decree based on an alleged departure from its former mandate, may properly determine the validity of the act as a matter involved in the decree's execution. Under Rule 24, costs in this court are not allowable in cases where the United States is a party. Where the United States obtained a decree declaring railroad land grants forfeited for breaches of obligation by the railroad company and upon appeal the decree was reversed because the obligations broken were not conditions subsequent but statutory covenants and relief against the company by injunction was decreed accordingly, costs of the litigation in the District Court were properly awarded by that court to the United States.

This is the second appearance of the case in this court. It is on certificate from and certiorari to the circuit court of appeals for the ninth circuit, to which court it was taken by appeal to review a decree of the district court for the district of Oregon, entered in fulfilment of the mandate of this court. The decree of the district court was reversed, and the present controversy is as to what our mandate required. As expressing their different views of it the government and the railroad company—we shall so refer to the defendants, except where a distinction is necessary—submitted forms of decrees to the district court. The court adopted the decree submitted by the government, and that action is assigned as error. The case as made in this court on its first appearance is reported in 238 U. S. 393-438, 59 L. ed. 1360-1397, 35 Sup. Ct. Rep. 908, and contains all of the elements for the decision of the questions now presented. Before detailing those elements we may say preliminarily that the difference between the decree entered and that proposed by the railroad company was in the extent of the restraint upon the company in the disposition of lands granted in aid of the construction of certain railroads and telegraph lines. The acts making the grants contained the provision that the lands granted should be sold to actual settlers only, in quantities not greater than one quarter section to one purchaser, and for a price not exceeding $2.50 an acre. The decree restrained the railroad company from selling 'to any person not an actual settler on the land sold to him,' with limitation of quantity and price stated, 'and from selling any of the timber on said lands, or any mineral or other deposits therein, except as a part of and in conjunction with the land on which the timber stands or in which the mineral or other deposits are found; and from cutting or removing or authorizing the cutting or removal of any of the timber thereon; or from removing or authorizing the removal of mineral or other deposits therein, except in connection with the sale of the land bearing the timber or containing the mineral or other deposits.' The decree as proposed by the railroad company omitted the injunction against selling the timber and mineral deposits. Upon these differences in the proposed and entered decree the railroad company bases its contention that the latter is not in accordance with the mandate of this court, and in support of it it has presented elaborate arguments to establish a distinction between lands and the timber on them and the mineral deposits in them, and that the command of the acts of Congress to sell the lands did not include the timber or deposits. In other words, it is contended that the acts of Congress gave the railroad company 'the right of an owner by absolute grant to the use of the timber on his land' and to avail himself of the minerals therein; and that, therefore, the restraint that the district court put upon the railroad company was in excess of the mandate. 'It was what this court has termed an 'intermeddling' with matters outside of the scope of the mandate. It proceeded to determine that the railroad had no right to use the timber upon its lands while they were still unsold and in its possession and occupancy; it determined that the railroad company could not even make a clearing in anticipation of a sale to some settler, or dig out a ton of coal; and it adjudged that the owner of the land had no right in the timber or the coal except to pass it, as part of the realty, when it sold the land to a settler at $2.50 an acre.' The complaint is graphic. Its attempted justification is the assertion of a grant in absolute ownership. Such ownership is the foundation of the railroad company's contention, and on this foundation it builds its argument and upon the insistence that the lands having been granted, necessarily as incidents to them the timber and minerals on and within them were granted. An immediate and sufficient answer to the contention would seem to be that the grant was not absolute, but was qualified by a condition in favor of settlers, and that if the 'lands' granted had such incidents, the 'lands' directed to be sold to actual settlers were intended to have such incidents. That is, if the 'lands' granted carried by necessary implication all that was above the surface and all below the surface to the railroad company, they carried such implication to the actual settler. In other words, what 'lands' meant to the railroad company they meant to the settler, embraced within his right to purchase and acquire. We are not disposed, however, to rest upon this summary answer, but will consider with more particularity our mandate. It is not necessary to trace the title of the lands to the railroad company. It is sufficient to say that the source of the title was an act of Congress approved July 25, 1866, chap. 242, 14 Stat. at L. 239, as amended by the acts approved June 25, 1868, chap. 80, 15 Stat. at L. 80; April 10, 1869, chap. 27, 16 Stat. at L. 47; and May 4, 1870, chap. 69, 16 Stat. at L. 94, which acts granted lands to aid in the construction of certain railroads and telegraph lines. The Act of 1869 contained this proviso: 'And provided further, That the lands granted by the act aforesaid [Act of 1866] shall be sold to actual settlers only, in quantities not greater than one quarter section to one purchaser, and for a price not exceeding two dollars and fifty cents per acre.' There was a like provision in the Act of 1870. The government brought suit against the railroad company, alleging that these provisos constituted conditions subsequent, charging breaches of the conditions by the company, and praying for a forfeiture of the unsold lands. The railroad company denied that the provisos were to be so construed, and alleged that they constituted restrictive and unenforceable covenants, and set up other defenses. The district court adopted the view of the government as to the provisos, and entered a decree forfeiting the lands, and the case came here for review. The contentions of the government and the railroad company were repeated in this court, and it was, besides, contended that the provisos only applied to lands susceptible of actual settlement and cultivation, and did not include timber lands.1 We rejected the contention of the government; we rejected in part the contention of the railroad company, saying: 'Our conclusions, then, on the contentions of the government and the railroad company are that the provisos are not conditions subsequent; that they are covenants and enforceable.' But how enforceable? And what was the remedy for breaches? and breaches there were, many, gross, and determined. It was certainly not intended to be decided that these breaches, with all of their consequences, were to be put out of view and the railroad company only enjoined against future breaches. Yet this, in effect, is the contention, and it is attempted to be supported by certain language in the opinion. Before quoting it we may say in general that much that is cited from it must be considered in reference to the controversies which were presented, and that the granting acts and their provisos were necesarily construed as of the time of their passage. Action under them and the breaches of them came afterwards, and a consideration of the remedies to which the government was entitled. Keeping this comment in mind we can more easily understand the language of the opinion in description of the grant and in regard to the relief that was awarded the government. As to the grant, this was said—and it is much insisted on: 'There was a complete and absolute grant to the railroad company with power to sell, limited only as prescribed, and we agree with the government that the company 'might choose the actual settler; might sell for any price not exceeding $2.50 an acre; might sell in quantities of 40, 60, or 100 acres, or any amount not exceeding 160 acres." And we added: 'It might choose the time of sale or its use of the grant as a means of credit, subject ultimately to the restrictions imposed; and we say 'restrictions imposed' to reject the contention of the railroad company that an implication of the power to mortgage the lands carried a right to sell on foreclosure, devested of the obligations of the provisos.' This declares the meaning of the words of the acts, taken by themselves. It points out the power of the railroad company and that it was 'limited only as prescribed.' It does not point out the remedy of the government if the limit prescribed was transcended. For that we must look to other parts of the opinion. We took pains to declare that the principles of the case were 'not in great compass,' that circumstances had given 'perplexity and prolixity to discussion,' but had not confused the simple words of the acts of Congress, regarded either as grants or as laws, and that they were both, and, as both, they conferred rights quite definite and imposed obligations as much so,—the first having the means of acquisition; the second, of performance. And we gave emphasis to them as laws and the necessity of obedience to them as such, the remission of their obligation to be obtained 'through appeal to Congress,' and not by an evasion of them or a defiance of them. The evasions and defiance we showed, and the extent to which they transcended the policy and purpose of the government expressed in the covenants. We contrasted the requirement of the grants of a sale to an actual settler of 160 acres (maximum amount) with sales of 1,000, 2,000, 20,000, and 45,000 acres to single purchasers, and the use of the lands for homes with their use for immediate or speculative enterprises. The relief the government was entitled to, we said, was not satisfied by preserving its rights to the lands sold, and we further said that 'an injunction simply against future violations of the covenants, or, to put it another way, simply mandatory of their requirements, will not afford the measure of relief to which the facts of the case entitle the government.' The reason was expressed. The government alleged, to show a disregard of the covenants, that more than 1,000 persons had applied to purchase lands from the railroad company in conformity with the covenants. The company, replying, said the applications were not made in good faith for settlement, but for speculation, the lands being valuable only for their timber, and not being fit for settlement; and further alleged that at no time had the lands fit for actual settlement exceeded 300,000 acres, in widely separated tracts, and had been sold during the construction of the road and prior to its completion to actual settlers in the prescribed quantities and at the prescribed price. We have seen that other sales were made in quantities in excess of that prescribed by the statute, and not for settlement, at prices from $5 to $40 an acre, and that at the time the answer was filed there remained unsold over 2,000,000 acres, the reasonable value of which was $30,000,000. There was no intimation that the lands did not include the timber, and it was not only recognized but asserted that the lands were more valuable for the timber than for settlement. Our judgment took care of the situation. It preserved the remedies of the government for past violations of the granting acts and recognized that new dispositions were necessary to secure the rights that had accrued to the government. We said that, owing to the 'conditions now existing, incident, it may be, to the prolonged disregard of the covenants by the railroad company, the lands invite now more to speculation than to settlement, and we think, therefore, that the railroad company should not only be enjoined from sales in violation of the covenants, but enjoined from any disposition of them whatever or of the timber thereon, and from cutting or removing any of the timber thereon, until Congress shall have a reasonable opportunity to provide by legislation for their disposition in accordance with such policy as it may deem fitting under the circumstances, and at the same time secure to the defendants all the value the granting acts conferred upon the railroads.' The design of this and its adequacy would seem to need no comment. It was intended to be a guide to the district court, indeed, a direction of the decree of the court. The decree complied with the direction. See Southern Oregon Co. v. United States (circuit court of appeals, ninth circuit, decided Feb. 13, 1917). Congress, in the execution of the policy it deemed fitting under the circumstances, as expressed in our opinion, enacted what is called the Chamberlain-Ferris Act of June 9, 1916 (39 Stat. at L. 218, chap. 137).2 The validity of the act is challenged and both sides invite a determination of the challenge. The validity of the law may be said not to be involved. The appeal is from the decree, and, that being determined to be right, the appeal, it may be urged, is satisfied; the questions it presents decided. It, however, may be considered important in the execution of the decree, for we have seen that the granting acts were laws as well as grants, had the strength and operation of laws, subject to amendment if the right of amendment existed or accrued. There was a reservation in them of the right of alteration or repeal, and if it could not be exerted to take back what had been granted and had vested, it could be exerted to accomplish the remedy which the court adjudged to the government for the violation by the railroad company of the provisions of the grants. It is no answer to the exertion of the power and remedy to say that the acts of Congress were initially complete and absolute grants. It is to be borne in mind that they carried with them covenants to be performed and necessarily an obligation to perform them, with remedies for breaches of performance. Such was our judgment, as we have seen, and the judgment was adapted to the conditions created by the breaches, and for this legislation was deemed necessary. But the railroad company says that the legislation directed was to have its consent, and that such consent 'was essential to the valid resumption or alteration of its vested rights,' and that this was what this court meant when it said 'that any legislation in the premises by Congress should 'secure to the defendants all the value the granting acts conferred upon the railroads." We have already answered the contentions. The railroad company, by pushing into view the rights conferred by the granting acts and putting out of view the wrongs committed by it, can easily build an argument upon and invoke the inviolability of vested rights; and to say that its consent was necessary to legislation is to say that it could dictate the remedy for its wrongs, preclude or embarrass the policy of the government. The interest that the granting acts conferred upon the railroad company was $2.50 an acre. That secured to it, 'all the value the granting acts conferred' upon it was secured. It is true it had the right of sale, selection of time, and settler. If these were rights, they were also aids to the duty of transmitting the lands to settlers; and, the duty having been violated, they became unsuitable to the conditions resulting and obstructions to the relief which had accrued to the government. In other words, by the conduct of the railroad company the policy of the granting acts had become impracticable of performance, and the new conditions—the lands inviting more to speculation than to settlement—demanded other provision than that prescribed by the granting acts. This was the declaration and direction of our judgment, and the Chamberlain-Ferris Act is the execution of it. The Union Trust Company was one of the defendants in the suit and is one of the parties here. It was heard by its own counsel at the bar and through brief. In the main its argument is the same as that of the railroad company, varied somewhat in detail, and asserts that it has not only the rights of the railroad, but, 'in addition and especially, that even if it be possible for the government now to take away rights once conveyed to the railroad, it cannot take them except subject to the lien of the mortgage.' So far as the rights of the trust company coincide with those of the railroad company we have considered them, and they cannot be greater than those of that company. The railroad company, it is true, could use the lands as a basis of credit, but only to the extent of its interest in them, subject to the performance of its obligations and the power of the government to exact their performance. We were careful to observe this subordination. We expressed the extent of the interest that the railroad company received and that 'it might choose the time for selling or its use of the grant as a means of credit,' but, we also said, 'subject ultimately to the restrictions imposed.' And, further, we said "restrictions imposed' to reject the contention that an implication of the power to mortgage the lands carried a right to sell on foreclosure, devested of the obligations of the provisos.' The case was responded to as it was presented, and no phase of it was omitted in presentation or response that could influence its judgment. Of what was in the minds of counsel, determining and urging their contentions, of what was in the mind of the court in response to the contentions, the opinion leaves no doubt, and that after the fullest consideration of all that was involved of rights and remedies, the judgment was pronounced. A distinction is now attempted to be made between a sale of the lands and the use of the lands, including in the use of them the right to cut the timber upon them and extract minerals (coal and iron) from them. Such use, it is asserted, is a necessary incident of ownership, and that such use was not intended to be taken away nor could it have been taken away by our judgment. To answer the contentions would be mere repetition of what we have said. The distinction now made between the lands and their use is but the contention urged on the first appeal and rejected, that the provisos only applied to lands susceptible of actual settlement, and not to timber lands. The distinction then was between the lands; now, between their constituting elements, and for the same reason: to give to the railroad company and the trust company what the granting acts did not give; or, rather, gave for the purpose of transmission to actual settlers. This transmission becoming impracticable, other disposition of the lands, including all that is signified by the word, was adjudged. The Trust Company also attacks the Chamberlain-Ferris Act and is assisted in the attack by a 'friend of the court.' The attacks have the same basis as that which we have noticed,—that is, the rights of the railroad company are asserted to be vested and inviolable. The contention gets a semblance of strength from the ability of counsel. To yield to it would be in effect to declare that covenants violated are the same as covenants performed,—wrong done the same as rights exercised,—and, by confounding founding these essential distinctions, give to the transgression of the law what its observance is alone entitled to. The decree of the district court taxed costs against the railroad company, and this is assigned as error. The amount is stated to be $6,249.02. So far as this sum includes costs on the former appeal we think there was error. The railroad company was compelled to appeal from the decree against it. The decree was reversed and no costs were awarded for or against it, and could not have been under rule 24 of this court. The rule gives costs to the prevailing party in certain cases. The provision, however, does not 'apply to cases where the United States are a party; but in such cases no costs shall be allowed in this court for or against the United States.' Our mandate was in accordance with the rule, and the decree should not have awarded costs to the United States. To that extent it is erroneous and should be modified by deducting the costs which were incurred in this court; and, so modified, it is affirmed. Mr. Justice McReynolds took no part in the consideration and decision of this case.

243.US.43

Plaintiff, employed by the defendant, an interstate carrier, was injured while laboring in a tunnel which was then being constructed by the defendant in the State of Washington for the purpose of shortening its main line between Chicago and Seattle and thus improving its freight and passenger service. The tunnel was incomplete and had never been used in interstate commerce. Held, (1) That neither party was engaged in interstate commerce, quoad tho injury, and that no cause of action existed under the Federal Employers' Liability Act. (2) That plaintiff's cause of action, viewed as arising under the state law, was remediable only as provided by the Washington Workmen's Compensation Act, Laws 1911, c. 74. Mountain Timber Co. v. Washington, post, 219; New York Central R. R. Co. v. White, p9st, 188. 233 Fed. Rep. 239, affirmed.

Raymond, the plaintiff in error, sued the railway company, a foreign corporation doing business in Washington, to recover damages resulting from injuries sustained by him while in its employ. The petition alleged that the defendant operated an interstate commerce railroad between Chicago and Seattle, and that, for the purpose of shortening its main line and making more efficient and expeditious its freight and passenger service, was engaged in cutting a tunnel through the mountain between Horrick's Spur and Rockdale, in Washington. It was averred that plaintiff was employed by the defendant in the tunnel as a laborer, and that, while he was at work, his pick struck a charge of dynamite which, through the defendant's negligence, had not been removed, and that from the explosion which followed he had sustained serious injuries. The defendant's answer contained a general denial and alleged that at the time and place of the accident the railroad and Raymond were not engaged in interstate commerce, since the tunnel was only partially bored, and hence not in use as an instrumentality of interstate commerce. It was further alleged that the court was without jurisdiction to hear the cause because of the provisions of the Washington Workmen's Compensation Act (Laws 1911, chap. 74), with whose requirements the defendant had fully complied. The reply of the plaintiff admitted the facts alleged in the answer, but denied that they constituted defenses to the action. The trial court entered a judgment for the defendant on the pleadings, and this writ of error is prosecuted to a judgment of the court below, affirming such action. 147 C. C. A. 245, 233 Fed. 239. Considering the suit as based upon the Federal Employers' Liability Act, it is certain, under recent decisions of this court, whatever doubt may have existed in the minds of some at the time the judgment below was rendered, that, under the facts as alleged, Raymond and the railway company were not engaged in interstate commerce at the time the injuries were suffered, and consequently no cause of action was alleged under the act. Delaware, L. & W. R. Co. v. Yurkonis, 238 U. S. 439, 59 L. ed. 1397, 35 Sup. Ct. Rep. 902; Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 177, 60 L. ed. 941, 36 Sup. Ct. Rep. 517, 11 N. C. C. A. 992; Minneapolis & St. L. R. Co. v. Nash, 242 U. S. 619, 61 L. ed. ——, 37 Sup. Ct. Rep. 239. It is also certain that if the petition be treated as alleging a cause of action under the common law, the court below was without authority to afford relief, as that result could only be attained under the local law, in accordance with the provisions of the Washington Workmen's Compensation Act, which has this day been decided to be not repugnant to the Constitution of the United States (Mountain Timber Co. v. Washington, 243 U. S. 219, 61 L. ed. 685, 37 Sup. Ct. Rep. 260). And this result is controlling even although it be conceded that the railroad company was, in a general sense, engaged in interstate commerce, since it has been also this day decided that that fact does not prevent the operation of a state Workmen's Compensation Act (New York C. R. Co. v. White, 243 U. S. 188, 61 L. ed. 667, 37 Sup. Ct. Rep. 247).

244.US.72

An action under Rev. Stats., § 5239, against a director of a national bank for damages sustained by an individual in consequence of violations of the National Bank Act, necessarily involves a federal question. The court finds no reversible error in the views of the evidence or legal conclusions reached by the Circuit Court of Appeals in sustaining a judgment recovered under Rev. Stats., § 5239. 221 Fed. Rep. 912, affirmed.

Action in ten counts charging plaintiff in error and one Joseph W. McGraw with violating the National Bank Act, and alleging damages resulting to defendant in error therefrom. In description of the parties we shall designate them respectively as plaintiff and defendants. In all the counts defendant Chesbrough and McGraw are alleged to have been at certain dates directors of the Old Second National Bank, a national banking corporation organized and doing business under the National Bank Act of 1864 [13 Stat. at L. 99, chap. 106, Comp. Stat. 1916, § 495], and the amendments thereto, and having its office in the city of Bay City, Michigan. The following violations of the act are charged: (1) Signing, attesting, and permitting and assenting to the publication of, a report of the conditions of the bank required to be made by U. S. Rev. Stat. § 5211, Comp. Stat. 1916, § 9774, of such act, which report was false. (2, 3, 4, 5.) The Comptroller of the Currency having made a requisition upon the bank for a report of the resources and liabilities of the bank upon a day specified, as required by the act, the defendants permitted and assented to a violation of the act by signing, attesting, and permitting and assenting to the publication of, a false report of the resources and liabilities of the bank and its condition at the close of business of such day. (6, 7, 8.) Violation of the act in that defendants and each of them permitted and assented to the declaration of the semiannual dividend, being payable December 1, 1902, knowing that it would necessarily be paid out of the capital stock of the bank, and not out of net profits, and knowing that losses had theretofore been sustained equal to or exceeding the undivided profits then on hand, and that the sums so declared as dividends exceeded the profits then on hand, after deducting therefrom losses and bad debts. (9) Defendants knowingly violated and permitted and assented to the violation of the act (U. S. Rev. Stat. § 5200, Comp. Stat. 1916, § 9761) in that they knowingly participated in, permitted, and assented to the creation of, certain liabilities to the bank, and knowingly permitted and assented to the continuance of the liabilities and the carrying of the same among the loans and discounts of the bank after defendants and each of them had knowledge of the nature and character of the liabilities, and that they had been created and were being carried in violation of the act. The liabilities are set out. (10) Violations of the act (U. S. Rev. Stat. §§ 5199, 5200, 5204, 5211, 5239, Comp. Stat. 1916, §§ 9760, 9761, 9766, 9774, 9831), being portions of a general design and conspiracy on the part of the defendants to deceive the public, including plaintiff, for the purpose of giving the stock of the bank a fictitious market value and enabling each of the defendants and his relatives and friends to dispose of certain shares of the stock then and there held by them at a price exceeding the value of the stock. In each count damage is alleged to have been caused to plaintiff, he having purchased stock upon the faith of the action of defendants. The total amount of damage is alleged to be $35,000. Plaintiff in error Chesbrough (the case is here on his writ of error, McGraw not having joined) filed a demurrer to the declaration, which was overruled. He then filed several pleas, one of which alleged that he was not guilty of the wrongs and injuries complained of, and gave notice that under the latter he would 'insist [upon] and give in evidence' certain matters of defense. The case was tried to a jury. The 3d, 6th, 7th, 8th, 9th, and part of the 10th counts were withdrawn from their consideration. A verdict was returned for plaintiff in the sum of $22,662.98, upon which judgment was entered. It was affirmed by the court of appeals. 137 C. C. A. 482, 221 Fed. 912. This case had once before been to the circuit court of appeals, where its facts were reviewed, and we may refer to the report of the case for them. 116 C. C. A. 465, 195 Fed. 875. It there appears that in October, 1902, the bank reported a capital of $200,000, a surplus of $75,000, and undivided profits of $27,000. Its total loans and discounts were about $100,000. On October 3, 1902, the bank held as loans (so considered by the court and the Comptroller of the Currency) the paper of the Maltby Lumber Company to the amount of $402,000, which had accumulated under the personal direction of the then president and practical manager of the bank. The Comptroller required that the loan be reduced to the permitted 10 per cent. The Comptroller's letter was presented to the board. Inquiry during the next few weeks developed the general character of the Maltby paper and that most of it was not drawn against any real debt, and in fact represented no liability, except Mrs. Maltby's. Its net worth, shown by a statement of Maltby, who was called before the board, was about $188,000, but there were many suspicious circumstances about the inventory, and it did not appear how much of this primary liability to the bank was included among the debts. There was subsequently liquidation of the Maltby Company's affairs, and as it proceeded the bank charged off successive amounts of the Maltby paper. In this way the total loss charged off prior to the trial of the cause (first trial) was $223,000. A comparatively small amount remained uncollected and not charged off. A generally similar situation existed as to another line of paper, of one Brotherton, upon which $47,000 had been written off as worthless before April, 1909. The shares of stock were $100 par value, and the writing off of these two items caused a loss in book value of $135 per share. The defendants had been two of the directors for many years, during which time reports to the Comptroller were frequently made and published, as required by the statute, and as called for by him, and continuously until 1904 the entire Maltby line was carried at its face in the 'loans and discounts,' and was reported as part of the bank's assets. Plaintiff, at various dates from March to December, 1903, bought the bank stock at its supposed market value, averaging about $151 per share, and aggregating $15,000 par and $23,400 purchase price. The case went to trial to a jury. Certain counts were withdrawn, and upon those submitted a verdict was returned and judgment entered upon it for the amounts plaintiff had paid for his stock, less its then book value, after deducting its pro rata share of the actual loss written off on account of the Maltby and Brotherton paper, with interest,—an average total of $167 per share. The following were the rulings of the court: (1) The general demurrer was rightly overruled. The making and publishing of the reports are not merely for the information of the Comptroller, but are to guide the public, and he who buys stock in a bank in reliance upon the reports has a right of action under § 5239, Rev. Stat. (Comp. Stat. 1916, § 9831), against any officer or director who, knowing its falsity, authorizes such report. 'The one suffering such damages is within the statutory description 'any other person." The conclusion was deduced from Yates v. Jones Nat. Bank, 206 U. S. 158, 51 L. ed. 1002, 27 Sup. Ct. Rep. 638, and Yates v. Utica Bank, 206 U. S. 181, 51 L. ed. 1015, 27 Sup. Ct. Rep. 646, and other cases in the state and Federal courts. (2) The damages in such a case are personal to the plaintiff. He sues in his own right, not for the association. (3) Such action involves no direct showing of negligence; the sole primary issue is whether defendants caused or permitted to be made a statement of the bank's condition upon which statement plaintiff relied to his injury, and which statement defendants knew was materially false. And in the trial of this issue the detailed history of the entire transaction is admissible as tending to show whether the loans were in fact bad, and whether defendants knew that fact. This scienter is the material condition, and plaintiff can select one of the directors as sole defendant, or join others with him. (4) Considering the evidence, the court concluded that it justified a finding of liability against the defendants, but not to the extent of the judgment. The court was of opinion that the basis of loss to the bank, that is, the amount which should have been charged off, was taken in the verdict and judgment at the sum of $223,000, and should not have been greater than $135,000, excluding entirely, as not sustained by the evidence, the Brotherton debts. The court, therefore, reversed the judgment and remanded the case for a new trial. Plaintiff moved to modify the opinion and judgment in such manner as to permit him to remit such part of it as the court thought was not supported by the evidence, and that, as modified, the judgment be affirmed. The motion was denied. The second trial resulted again, as we have said, in a verdict and judgment for plaintiff. In reaching them a basis beyond $135,000 was taken, and the circuit court of appeals held this was error, but gave to plaintiff permission to file within thirty days from the filing of the opinion in the trial court a written election to reduce the judgment by the sum in which it exceeded the $135,000 basis. This was done, and judgment entered accordingly. The case on the facts involves two simple propositions,—the scienter of defendant when he attested the report to the Comptroller and the circumstances under which two dividends were declared. Upon these propositions twice have juries held against defendant and twice has the circuit court of appeals held that there was sufficient evidence to sustain their verdicts, modifying only as to certain items of damages. In consideration of our reviewing power, and without reciting the testimony, it is enough to say that the findings on these propositions have substantial evidence to support them. But it is urged that the plaintiff brought this action under § 5239, Rev. Stat. (Comp. Stat. 1916, § 9831), in the circuit court of the United States for the eastern district of Michigan, in which all of the parties resided, and that not that court, but the state court, had jurisdiction. The cited section provides for a forfeiture of the franchise of a national bank if its directors knowingly violate or knowingly permit the violation of any of the provisions of the National Bank Act, and further provides that in case of such violation 'every director who participated in or assented to the same shall be held liable in his personal and individual capacity for all damages which the association, its shareholders, or any other person, shall have sustained in consequence of such violation.' This section was considered in Yates v. Jones Nat. Bank, 206 U. S. 158, 179, 51 L. ed. 1002, 1014, 27 Sup. Ct. Rep. 638, and it was held that the rule expressed by it is exclusive and precludes a common-law liability for fraud and deceit. To the same effect are Thomas v. Taylor, 224 U. S. 73, 56 L. ed. 673, 32 Sup. Ct. Rep. 403, and Jones Nat. Bank v. Yates, 240 U. S. 541, 60 L. ed. 788, 36 Sup. Ct. Rep. 429. Necessarily a Federal question is involved and there was jurisdiction in the courts below. § 5198, Rev. Stat. (Comp. Stat. 1916, § 9759); § 4 of the Act of August 13, 1888, 25 Stat. at L. 436, chap. 866. Herrmann v. Edwards, 238 U. S. 107, 59 L. ed. 1224, 35 Sup. Ct. Rep. 839, is not opposed to this view. It was there held only that the Federal cause of action should be, in the absence of diverse citizenship, stated in the bill to give the Federal court jurisdiction,—a condition that is complied with by the declaration in the present case. Defendant attempts to distinguish the present case from the cases cited above, and, in 77 assignments of error, concentrated into 18 points, urges the contentions we have noted, and contentions based on the rulings of the trial court in the admission and rejection of evidence and charges to the jury and the rulings of the circuit court of appeals, and attempts to support them by an elaborate and minute argument. Indeed, the whole case is reviewed and all of the deductions made by the lower tribunals from the evidence combated and the contentions reviewed which were disposed of by the circuit court of appeals, in whose decision we concur. To answer it in detail would extend this opinion to repellent length. It is enough to say of them that they show no reversible error. Judgment affirmed.

244.US.79

Finding a verdict and judgment excessive, the Court of Appeals gave the party who had recovered them his option to submit to a reversal or obtain an affirmance by remitting part of the judgment. The party having acted on the latter alternative, Held, that his cross writ of error complaining of the reduction must be dismissed. Cro6 writ of error to review 221 Fed. Rep. 912, dismissed. THE case is stated in the opinion.

This is a cross writ of error taken by Frank T. Woodworth, defendant in error in No. 179 [244 U. S. 72, 61 L. ed. ——, 37 Sup. Ct. Rep. 579], and is presented on the record in that case. As stated in the opinion in No. 179, the circuit court of appeals reversed the judgment obtained by Woodworth against Chesbrough on the ground that certain amounts computed in the judgment were not sustained by the evidence, and therefore remanded the case for a new trial. Thereupon Woodworth moved to modify the opinion and judgment in such manner as to permit him to remit such part of it as the court thought was not supported by the evidence, and that the judgment, as modified, be affirmed. The motion was denied. A new trial was had, again resulting in a verdict and judgment for Woodworth. The court of appeals again decided that it was excessive, but gave Woodworth permission to file a remission of the excess. This he did. The remittitur recited that plaintiff remits from the judgment the sum of $7,708.56, leaving the amount of the judgment to be $16,005.44. It was stated that it was done in compliance with the opinion of the circuit court of appeals 'for the sole purpose of obtaining an entry of final judgment herein, and of securing the affirmance of that part of the judgment which is not so remitted, and is intended to be without prejudice to plaintiff in any cross proceeding hereafter prosecuted by him before the Supreme Court of the United States, which cross proceeding follows and continues to be in connection with any proceeding prosecuted in that court by defendant for the purpose of reviewing said judgment of the circuit court of appeals.' The court of appeals then rendered the following judgment: 'This cause came on to be heard on the transcript of the record from the district court of the United States for the eastern district of Michigan, northern division, and was argued by counsel. 'The court having filed its opinion, and defendant in error, Woodworth, having thereupon filed in this court a certified copy of a remittitur filed by him in the court below, whereby it appears that the judgment complained of herein has been reduced by the sum of seven thousand seven hundred eight dollars and fifty-six cents ($7,708.56) so that it now stands in the court below as a judgment for sixteen thousand five dollars and forty-four cents ($16,005.44) and costs, entered as of November 22, 1913, and bearing interest from the date at 5 per cent. 'It is now here ordered and adjudged by this court that the judgment of the said district court in this cause, as so reduced, and as so standing after such reduction, be, and the same is hereby, affirmed; but that plaintiff in error, Chesbrough, recover the costs of this court. 'The remittitur so filed having contained the clause stating that it was intended to be without prejudice to plaintiff below (Woodworth) in the prosecution by him of a cross writ of error or proceeding in the Supreme Court if defendant below should proceed in that court to review this judgment, and this court being unwilling to embarrass the party, Woodworth, in his attempt to preserve any right of review to which he may be so contingently entitled, approval of such remittitur, as a sufficient compliance with the opinion on file, is not withheld because of the presence therein of such attempted reservation; but such approval is not to be taken to imply that such right of review can thereafter exist, or that such attempted reservation has any effect to make the remittitur other than absolute and unconditional.' In assertion of the right attempted to be reserved Woodworth prosecutes this writ of error. A motion is made to dismiss the writ of error, and we think it should be granted. Woodworth is in the somewhat anomalous position of having secured a judgment against Chesbrough, and yet seeking to retract the condition upon which it was obtained. This he cannot do. Koenigsberger v. Richmond Silver Min. Co. 158 U. S. 41, 52, 39 L. ed. 889, 893, 15 Sup. Ct. Rep. 751. He encounters, besides, another obstacle: If the remittitur be disregarded, the judgment entered upon it must be disregarded and the original judgment of the Circuit Court oa Appeals restored; which, not being final, cannot be reviewed. Dismissed.

243.US.588

A writ of error to review a sentence of murder was heard by the Supreme Court of Georgia in banc and, the six justices being evenly divided, the sentence was affirmed pursuant to Georgia Code of 1910, § 6116. Three of the justices participating did not hear the argument, and one of them, voting affirmance, was not then appointed, but after his appointment and before the affirmance notice was given affording the convicted person opportunity for a reargument, of which he did not avail himself. Held, that t6ie affirmance was not in violation of due process of law. A right of appeal is not essential to due process under the Fourteenth Amendment, and Where it is allowed the State may prescribe the conditions and procedure.

Petition in habeas corpus, in which appellant was petitioner, which presents the following facts, stated narratively: Appellant is confined in the common jail of Ware county in execution of a life sentence upon conviction for murder, the sentence having been affirmed by the supreme court of that state. The court was evenly divided in opinion, and therefore the judgment was affirmed by operation of law under the provision of that part of § 6116 of the Code of Georgia of 1910 which is as follows: 'In all cases decided by a full bench of six justices, the concurrence of a majority shall be essential to a judgment of reversal; and if the justices are evenly divided, the judgment of the court below shall stand affirmed.' Three of the judges did not hear the argument, but participated in the opinion of the court. The case was argued before the supreme court on June 3, 1916, and when it was argued Justice Gilbert was not even a member of the court, but was appointed in September, 1916, to fill the place made vacant by the death of a member of the court. Upon these facts if is averred that appellant was denied a right guaranteed by the Constitution and laws of the United States,—the benefit of counsel and right to be heard,—which abridged his privileges and immunities as a citizen of the United States, deprived him of liberty without due process of law, and of his right to have a judicial determination of his guilt or innocence by a reviewing court. Attached to the petition was a transcript of the record in the trial court and the supreme court. His prayer to be discharged was denied. An appeal was allowed, the court certifying that there was probable cause. It appears from the transcript of the record that the judgment affirming the sentence was rendered after Justice Gilbert had taken his seat as a member of the court, and that if he had not taken part the judgment would have been reversed. It also appears that after the judgment a petition for rehearing was filed which attacked the statute permitting a judgment of affirmance by a divided court upon the same grounds as those alleged in the petition for habeas corpus and now urged here, and also attacked the judgment for the participation therein of Justice Gilbert. It was stated in the petition for rehearing as follows: 'This case having been heard before three justices by oral argument, or rather Wash Lott having appeared by attorneys, the case having been passed upon by the court as a whole, consisting of the entire six judges, and the defendant not having been heard before the said six judges, either in person or by attorneys, movant begs leave to call the court's attention to § 6115 of the Code of 1910 which is as follows: "Whenever any justice in either division differs from the other two as to any particular case pending before it, such case shall go to the court as a whole, or any one or more justices of the other division may be argued before one division only, it may, upon its own motion, but not otherwise, order a reargument therein." It was suggested that the court 'hear reargument in this case on its own motion' because the court had overlooked the section of the Code quoted above and the provision of the Constitution of the United States which gives assurance that no person shall be deprived of his liberty without due process of law. The petition was filed November 24th and overruled December 19, 1916. Upon what consideration it does not appear; but it may be presumed that the court was of opinion that the statute of the state had been adequately complied with. The Attorney General asserts in his brief, and there is no denial by appellant, that after the appointment of Justice Gilbert notice was given to parties and counsel in all cases then pending in which argument had been heard prior to his appointment, and which were to be passed on by him, setting a time for reargument of such cases. The appellant, therefore, was given an opportunity to be heard. Besides, the right of appeal is not essential to due process. Reetz v. Michigan, 188 U. S. 505, 508, 47 L. ed. 563, 566, 23 Sup. Ct. Rep. 390. It was, therefore, competent for the state to prescribe the procedure and conditions, and the cases cited by appellant are not apposite. Order affirmed.

244.US.111

Acting under the enrollment provisions of the Curtis Act of June 28, 1898, and the Creek Agreement of March 1, 1901, the Dawes Commission was a quasi judicial tribunal, and enrollments made by it and approved by the Secretary of the Interior are presumptively correct; and, unless impeached by very clear evidence of fraud, mistake or arbitrary action, they are conclusive. Whether or not a person alleged to be a member of the Creek.Nation was living on April 1, 1899, is one of the questions going to the right of such person or his heirs to have his name enrolled under § 28 of Agreement of March 1, 1901, which the Dawes Commission was competent to decide; it is not a jurisdictional question, and an incorrect determination of it does not necessarily render the enrollment void. Scott v. McNeal, 154 U. S. 34, distinguished. In enrolling members of the Creek Tribe in 1901, the Dawes Commission was authorized, to presume that a person enrolled as a member of the tribe on the tribal rolls of 1895 was living on April 1, 1899, in the absence of proof of his death before that day or of circumstances indicating that he had died before the commission acted. The evidence in the case examined and found wanting in proof of such arbitrary action -on the part of the Dawes Commission as would establish a mistake of law or fact warranting the impeachment of its action in enrolling the Indian in whose name the allotment in question was made and patented. An attempt of the Secretary of the Interior to set aside the enrollment and allotment of a deceased Creek Indian by striking his name from the rolls without notice to his heirs is ultra vires and void. When a Creek citizen dies after April 1, 1899, and an allotment is afterwards made, and deeds issued, in his name, the title is vested'in his heirs by § 28 of the Agreement of March 1, 1901. Skelton v. Dill, 235 U. S. 206-208. Under the Creek Agreement of March 1, 1901, § 3, it was permissible for the Dawes Commission to enroll tribal citizens and make them allotments'when they failed to make selections for themselves. Affirmed.

This action was begun by the United States, in behalf of the Creek Tribe of Indians, in the district court of the United States for the eastern district of Oklahoma, against Bessie Wildeat and others, heirs of Barney Thlocco, a full-blood Creek Indian, to obtain cancelation of the allotment certificate and deeds for his allotment of 160 acres. The bill of complaint alleges that Thlocco was a Creek Indian by blood; that he died at about the beginning of the year 1899 and prior to April 1, 1899, and that he was not entitled to be enrolled as a citizen of the Creek Nation, or to receive an allotment of any part of its lands under the acts of Congress; that on or about May 24, 1901, the Commission to the Five Civilized Tribes caused his name to be placed on the roll of Creek citizens by blood which that Commission was then preparing; that thereafter, on June 30, 1902, the Commission issued a certificate of allotment in Thlocco's name, and homestead and allotment patents purporting to convey the land allotted were executed by the principal chief of the Creek Nation on March 11, 1903, and approved by the Secretary of the Interior on April 3, 1903; that thereafter, on December 13, 1906, the Secretary of the Interior, by executive order, caused Thlocco's name to be stricken from the roll of citizens by blood of the Creek Nation, and he is not an enrolled citizen by blood or otherwise of the Creek Nation, and is not now and has never been entitled to an allotment of land therein because he has never been a lawfully enrolled citizen thereof, and because he died prior to April 1, 1899; and that the patents have never been delivered to Thlocco or to any other person, but are in the possession of complainant through its officers and agents. The bill alleges that these instruments and proceedings constitute a cloud upon the Creek Nation's title to the land and that the existence of this cloud hinders and delays complainant in the performance of the duty imposed on it by law to allot and otherwise dispose of the lands and to wind up the affairs of the Creek Nation, and prays that the allotment certificate and patents be declared void and of no effect as instruments of conveyance; that the defendants be decreed to have no right, title, interest, or estate in and to the land; that the title to the land be quieted in complainant and the Creek Nation; that whatever cloud is cast upon the title to the land by reason of the matters aforesaid be decreed to be dissolved and the land decreed to be a part of the public and unallotted tribal land of the Creek Nation, subject to disposition by complainant in accordance with law; that the enrolment of Barney Thlocco be canceled, and that he, or any person claiming by, through, or under him, including the defendants, be decreed not to be entitled to participate in the disposition of the lands, moneys, or other property of the Creek Nation, and that the defendants be forever enjoined from asserting any claim of title to, or interest in, the tract of land hereinbefore described, adverse to the complainant and the Creek Nation. It is alleged that no hearing was held or investigation made by the Commission, and no evidence of any kind was obtained or had by it on the question of Thlocco's right to be enrolled; that no notice was given to the Creek Nation that his name was about to be enrolled; that there was no controversy, contest, or adverse proceeding of any kind before the Commission in this respect; and that the Commission, in causing Thlocco's name to be placed on the roll of Creek citizens by blood, acted arbitrarily and summarily, and without knowledge, information, or belief that he was living or dead on April 1, 1899, and acted on a mere arbitrary and erroneous assumption wholly unsupported by evidence or information that he was living on that date and entitled to be enrolled. The answer avers that Thlocco was living April 1, 1899, and denies that the Commission acted arbitrarily and without evidence in placing his name on the roll and allotting the lands to him, and alleges that the Commission, in causing both these acts to be done, was not guilty of any gross mistake of fact or of law, but acted upon evidence satisfactory to it, and sufficient in law and in fact. It further alleges that the Dawes Commission was vested with jurisdiction to determine what persons were entitled to enrolment as citizens of the nation, and entitle to allotment out of the tribal lands, and that its decision in that regard having been approved by the Secretary of the Interior, 'said enrolment, allotment, and patent cannot be canceled, nor can the issue of fact upon which the Commission placed the name of Barney Thlocco upon the approved Creek Roll be tried again; and these defendants say that this court is without authority of law to reopen or retry the question of fact sought to be put in issue by the United States.' Other defendants claimed an interest in part of the same property under a subsequent allotment, and intervened for the same relief as was asked by the United States. Upon the trial of the case, the government offered to show by witnesses and circumstances that Thlocco in fact died in January, 1899. Upon objection to this evidence by the defendants, the trial court ruled that the question whether Thlocco was living on April 1, 1899, was one of the questions which the law submitted to the Dawes Commission, and that its decision, placing Thlocco's name on the tribal roll, could only be attacked upon the ground of fraud, error of law, or gross mistake of fact, or upon the ground that the Commission acted arbitrarily and wholly without evidence; that it was not open to the government, for the purpose of attacking the allotment certificate and deeds to Thlocco, to retry the question of fact as to whether he was living April 1, 1899. At the conclusion of the trial the government renewed its offer of proof, to which objections were sustained on the ground just stated. A decree was then entered dismissing the bill for the reason that the government had failed to show that the Commission, in enrolling Thlocco, acted arbitrarily and without evidence. Appeal was then taken to the circuit court of appeals for the eighth circuit, which court certified certain questions of law to this court. Subsequently a writ of certiorari was issued, bringing the whole case here. Judicial Code, § 239 [36 Stat. at L. 1157, chap. 231, Comp. Stat. 1916, § 1216]. The government in the brief filed in its behalf reduces the questions necessary to decide the merits of this appeal to two: First, should the evidence offered by the government to show that Thlocco died prior to April 1, 1899, have been admitted? Second, should the judgment of the district court be reversed because the enrolment of Thlocco and the allotment to him were made arbitrarily and without evidence as to whether he was living or dead on April 1, 1899? As to the first question, an understanding of certain legislation is necessary to its answer. By the Act of Congress of June 10, 1896 (29 Stat. at L. 339, chap. 398), the Commission to the Five Civilized Tribes, more commonly known as the Dawes Commission, was authorized to hear and determine applications for citizenship in any of the Five Civilized Tribes. By that act the rolls of citizenship of those tribes as they then existed were confirmed and the Commission commanded in determining applications for citizenship to 'give due force and effect to the rolls, usages, and customs of each of said nations or tribes.' It was provided by the Act of June 7, 1897 (30 Stat. at L. 84, chap. 3), that the term 'rolls of citizenship' should mean 'the last authenticated rolls of each tribe which have been approved by the council of the nations, and the descendants of those appearing on such rolls,' and certain others specified who had been lawfully added to the rolls. By the Curtis Act of June 28, 1898 (30 Stat. at L. 495, 502, chap. 517), the Commission was authorized and directed to make correct rolls of the citizens by blood of the Creek Tribe, eliminating from the tribal rolls such names as might have been placed thereon by fraud or without authority of law, enrolling such only as might have lawful right thereto, and their descendants born since such rolls were made. It was provided that the Commission should make such rolls descriptive of the persons thereon, so that they might be identified thereby, and the Commission was authorized to take a census of each of said tribes, or to adopt any other means by them deemed necessary to enable them to make such rolls, with the right of access to all rolls and records of the several tribes, and with authority to administer oaths, examine witnesses, and send for persons and papers. The rolls so made, when approved by the Secretary of the Interior, were to be final, and the persons whose names were found thereon, with their descendants thereafter born to them, with such persons as might intermarry according to tribal laws, were alone to constitute the several tribes which they represented. By § 28 of the Creek Agreement of March 1, 1901 (31 Stat. at L. 861, 870, chap. 676), it was provided that all citizens who were living on the 1st day of April, 1899, entitled to be enrolled under the above provisions of the Curtis Act, should be placed upon the rolls to be made by the Dawes Commission under that act, and provision was made for allotment to the heirs where any such citizen had died since that time. 'The rolls so made by said Commission,' the act continues, 'when approved by the Secretary of the Interior, shall be the final rolls of citizenship of said tribe, upon which the allotment of all lands and the distribution of all moneys and other property of the tribe shall be made, and to no other persons.' This agreement was ratified by the Creek Council May 25, 1901 (32 Stat. at L. 1971). The legislation which we have outlined indicates the purpose of Congress to make provision for the partition of the lands belonging to the Creek Nation among the members of the tribe, and to that end it authorized the Dawes Commission to make investigation and determine the names of such as were entitled to be on the rolls of citizenship and to participate in the division of the tribal lands. This purpose, indicated in the Curtis Act of 1898, was emphasized by the so-called Creek Agreement of 1901, subsequently ratified by the tribe. In that act the Commission was authorized to investigate the subject, and its action, when approved by the Secretary of the Interior, was declared to be final. There was thus constituted a quasi judicial tribunal whose judgments within the limits of its jurisdiction were only subject to attack for fraud or such mistake of law or fact as would justify the holding that its judgments were voidable. Congress, by this legislation, evidenced an intention to put an end to controversy by providing a tribunal before which those interested could be heard and the rolls authoritatively made up of those who were entitled to participate in the partition of the tribal lands. It was to the interest of all concerned that the beneficiaries of this division should be ascertained. To this end the Commission was established and endowed with authority to hear and determine the matter. A correct conclusion was not necessary to the finality and binding character of its decisions. It may be that the Commission, in acting upon the many cases before it, made mistakes which are now impossible of correction. This might easily be so, for the Commission passed upon the rights of thousands claiming membership in the tribe and ascertained the rights of others who did not appear before it, upon the merits of whose standing the Commission had to pass with the best information which it could obtain. When the Commission proceeded in good faith to determine the matter and to act upon information before it, not arbitrarily, but according to its best judgment, we think it was the intention of the act that the matter, upon the approval of the Secretary, should be finally concluded and the rights of the parties forever settled, subject to such attacks as could successfully be made upon judgments of this character for fraud or mistake. We cannot agree that the case is within the principles decided in Scott v. McNeal, 154 U. S. 34, 38 L. ed. 896, 14 Sup. Ct. Rep. 1108, and kindred cases, in which it has been held that, in the absence of a subject-matter of jurisdiction, an adjudication that there was such is not conclusive, and that a judgment based upon action without its proper subject being in existence is void. In Scott v. McNeal it was held that a probate court had no jurisdiction to appoint an administrator of a living person and to sell property in administration proceedings after finding that he was in fact dead. In that case it was held that a sale of the property of a living person by order of the probate court, without notice to him, necessarily deprived him of due process of law by selling his property without notice and by order of a court which had no jurisdiction over him in any manner. The notice in such cases to his next of kin, the court held, was not notice to him, and to make an order undertaking to deprive such person of his property would be to take it by a judgment to which the living person was not a party or privy; and it was held that jurisdiction did not arise from the mere finding of the court that the person whose property was thus taken was in fact deceased. In the present case the government had jurisdiction over these lands. It had the authority to partition them among the members of the tribe. Shulthis v. McDougal, 95 C. C. A. 615, 170 Fed. 529, 534; McDougal v. McKay, 237 U. S. 372, 383, 59 L. ed. 1001, 1005, 35 Sup. Ct. Rep. 605. For this purpose it determined to divide the lands among those living on April 1, 1899, and constituted a tribunal to investigate the question of membership and consequent right to share in the division. We think the decision of such tribunal, when not impeached for fraud or mistake, conclusive of the question of membership in the tribe, when followed, as was the case here, by the action of the Interior Department confirming the allotment and ordering the patents conveying the lands, which were in fact issued. If decisions of this character may be subject to annulment in the manner in which the government seeks to attack and set aside this one, many titles supposed to be secure would be devested many years after patents issued, upon showing that the decision was a mistaken one. The rule is that such decisions are presumably based upon proper showing, and that they must stand until overcome by full and convincing proof sufficient, within the recognized principles of equity jurisdiction in cases of this character, to invalidate them. Maxwell Land-Grant Case, 121 U. S. 325, 379, 381, 30 L. ed. 949, 958, 959, 7 Sup. Ct. Rep. 1015; Colorado Coal & I. Co. v. United States, 123 U. S. 307, 31 L. ed. 182, 8 Sup. Ct. Rep. 131. As to the second contention, that the Commission acted arbitrarily and without evidence of the fact that Thlocco was living on April 1, 1899, there is no attack upon the finding of the Commission for fraud, and this record shows an earnest attempt to conform the rolls to the requirements of the law. Thlocco's name appeared on the Tribal Rolls of 1890 and 1895 and on a census card made by a clerk of the Commission in 1897. An enrolling clerk with the Dawes Commission testified that he entered the name of Barney Thlocco upon the census card on May 24, 1901; that at that time there were a great many names on the old rolls unaccounted for, and the party went to Okmulgee to get them to come out and get them enrolled; that a great many were brought in; that Thlocco was one of those who were unaccounted for at that time, and the witness could not say whether his name was taken from the old census roll or whether someone appeared and asked for his enrolment; that after Thlocco's name was listed there was some investigation upon the question as to whether or not he was living or dead on April 1, 1899, but the Commission would have to be satisfied or have information of some kind that he was living on that date; that the Commission knew that Thlocco was dead in 1901, and it apparently was satisfied that he was living on April 1, 1899; that they would ask town kings and town warriors when they came in and anybody else if they knew this or that about the applicants; that because of a discrepancy between the ages of Thlocco on the census cards they must have had some information other than the old census card; that the invariable custom and practice was never to fill out one of the cards until they had some information from some source with reference to the question as to whether the applicant was living or whether he had died prior to April 1, 1899; that the Commission never arbitrarily listed any name; that no name was listed solely because it was on the Roll of 1895, but some particular individual evidence was required outside of that roll; that before the new rolls were sent to Washington the clerks and the chairman of the Commission would get together and go over every one of them. The clerk who made out the census card in 1897 testified that, as chief clerk of the Commission, he helped in the enrolment; that a notation on the census card, 'died in 1900,' was in his handwriting, but that he did not know who had given him the information or what use was made of the notation, except that it was intended that when the Commission came to pass on that name for final record on the roll, an inquiry should be made as to when Thlocco died or whether he was dead, and get the proper affidavit and death proof; that the Commission did not arbitrarily enroll any Creek citizen without evidence, and that in every single case if the applicant did not appear, someone who was regarded as reliable appeared for him and gave evidence until the Commissioner was satisfied that he belonged on the roll; that whenever any question was raised by the Creck Nation or its attorney with reference to the right to enrolment, or for any reason as to whether the applicant was living or dead, there was generally testimony taken in those cases; that with reference to those people whose names up to March, 1901, had not been accounted for, there were lists of these made and sent to the various town kings and various inquiries were made that way and report came back; that sometimes the party addressed came in and gave verbal testimony, and if it seemed clear to the Commission it was probably not reduced to writing; that if there was any question with reference to the matter it probably was reduced to writing; that the Commission had to be satisfied from the records; that the Commission never passed upon a card until it was completed; that the information may have been picked up piecemeal over a year or two, but the Commission was satisfied that the party was entitled to enrolment, and the records were made up for the purpose of the information of the Commission, and to show such information as was necessary to enable the Commission to reach a decision. One of the enrolling clerks at Okmulgee testified that if information was present that a name was entitled to go on the rolls, the roll was completed at Okmulgee; that if the Commission did not have this information they did not complete it; that the fact that Barney Thlocco's card was completed at Okmulgee indicated that the party who wrote the card was satisfied that Thlocco was living on April 1, 1899, and satisfied from evidence; that there was in all cases some evidence as to whether the citizen was living or dead on April 1, 1899, before the rolls were recommended to the Secretary of the Interior. The acting chairman of the Dawes Commission testified that they did not, to his knowledge, ever enroll any man without taking some evidence, information, or eliciting knowledge from some source other than the tribal rolls that he was entitled to be enrolled, and it was never permitted to be done; that the purpose was to find out whether a man was entitled to enrolment, and one of the factors in that determination was whether he died prior or subsequent to April 1, 1899; that he always ascertained that fact before he enrolled the applicant, and always satisfied his mind on that subject by evidence outside of the roll; that every name sent in to the Department of the Interior as a name to be enrolled and which had been enrolled as a member of the Creek Tribe had been investigated by some member of the Commission at some place and by evidence outside of the rolls, and a determination had been reached that that person was entitled to enrolment; that he undoubtedly satisfied himself from an examination of Thlocco's card whether Thlocco was living on April 1, 1899; that in securing information the Commission had the assistance of the best men in the tribes as well as its own field parties; that when he would take the card he would have the card and the clerk would have the schedule, and he went over it several times with the clerks, and would find out from the clerk all the information the clerk had with reference to that card several times. It is true, as set forth in the certificate upon which this case was originally sent here, in view of § 28 of the original Creek Agreement, providing that no person except as therein provided should be added to the rolls of citizenship of the tribe after the date of the agreement, and no person whomsoever should be added to the rolls after the ratification of the agreement, which was ratified on May 25, 1901, that the tribe assembled at Okmulgee, its capital, some days before that date, for the purpose of considering and acting upon the agreement, and that there was great activity some time before the ratification upon the part of the Dawes Commission and its officers and clerks to complete the enrolment of the tribe; and it is shown that Thlocco's enrolment card was made out at Okmulgee on the 24th day of May, 1901,—the last day before the ratification of the agreement. It is also true that, in the testimony as adduced in this record, there was, as naturally would be the case, a lack of recollection as to the details which attended the enrolment of Thlocco. But there is evidence to which we have already alluded, showing the practice of the Commission to make inquiries and investigations and to ascertain the facts as to the persons enrolled, and that no person was enrolled without information that was deemed satisfactory at that time. The Commission had before it the tribal rolls of 1890 and 1895. The latter roll was made out some six years before the action of the Commission, and in the absence of proof of Thlocco's death or some circumstances to give rise to the conclusion that he was not still living, the Commission might well indulge the presumption that he was still alive. Fidelity Mut. Life Asso. v. Mettler, 185 U. S. 308, 316, 46 L. ed. 922, 929, 22 Sup. Ct. Rep. 662. It is true that the methods followed by the Commission may not have been the most satisfactory possible of determining who were entitled to enrolment as living persons on April 1, 1899, but it must be remembered that there were many persons whose right to enrolment was being considered, and the Commission in good faith made an honest endeavor to keep the names of persons off the rolls who were not entitled to appear as members of the tribe upon the date fixed by Congress. We think the testimony very far from showing such arbitrary action on the part of the Commission in placing Thlocco's name on the rolls as would establish that mistake of law or fact which is essential to the impeachment of the action of the Commission. This action was brought fourteen years after the enrolment of Thlocco, and the allotment to him, based on such enrolment, should not be disturbed except for good and sufficient reasons. It is not contended by the government that the subsequent action of the Secretary in striking Thlocco's name from the rolls had the legal effect to accomplish that purpose. Such is the contention of the interveners. The testimony shows that Thlocco was enrolled by the Commission on May 24, 1901, that the allotment was made and the certificate therefor issued on June 30, 1902, and that patents were recorded in the office of the Commission on April 11, 1903, the allotment certificate issued in the name of Thlocco. On August 25, 1904, the Commission transmitted to the Secretary of the Interior a communication from the Creek attorney in the nature of a motion to reopen the matter. On September 16, 1904, the Secretary of the Interior ordered further investigation, and directed that notice be given to the heirs of Thlocco of the hearing. The heirs of Thlocco were not found, and no notice was given them of the proposed hearing. On October 10, 1906, the Commission reported that the testimony showed that Thlocco died before April 1, 1899, and recommended that his name be stricken from the roll. On December 13, 1906, the Secretary directed that Thlocco's name be stricken from the roll, and requested the Attorney General to take action to set aside the allotment deeds. We think this action entirely ineffectual to annul the previous action of the government in placing Thlocco's name upon the roll and issuing in his name the certificate and patents as we have stated. Such action could not be legally taken without notice to the heirs, and was void and of no effect. Garfield v. United States, 211 U. S. 249, 53 L. ed. 168, 29 Sup. Ct. Rep. 62; Knapp v. Alexander-Edgar Lumber Co. 237 U. S. 162, 169, 59 L. ed. 894, 899, 35 Sup. Ct. Rep. 515. In United States ex rel. Lowe v. Fisher, 223 U. S. 95, 56 L. ed. 364, 32 Sup. Ct. Rep. 196, the Secretary of the Interior, in striking names from the roll of Cherokee citizens, acted after notice and opportunity to be heard. The fact that Thlocco was dead at the time deeds were issued in his name would not prevent the title from vesting in his heirs. Section 28 of the Act of March 1, 1901 (31 Stat. at L. 861, 870, chap. 676), provides that 'if any such citizen has died since that time [April 1, 1899] or may hereafter die, before receiving his allotment of lands and distributive share of all the funds of the tribe, the lands and money to which he would be entitled, if living, shall descend to his heirs according to the laws of descent and distribution of the Creek Nation, and be allotted and distributed to them accordingly.' The effect of this provision is to vest title in the heirs by operation of law. Skelton v. Dill, 235 U. S. 206, 207, 208, 59 L. ed. 198, 199, 35 Sup. Ct. Rep. 60 L. ed. 198, 199, 35 Sup. Ct. Rep. 60. not selected by Thlocco, and that he was one of those arbitrarily placed upon the rolls, we think it was within the authority of the Commission to enroll members of the tribe who, for any reason, refused to make selections; for the statute (§ 3, 31 Stat. at L. 861, 862, chap. 676) provides that 'all lands of the said tribe, except as herein provided, shall be allotted among the citizens of the tribe by said Commission so as to give each an equal share of the whole in value, as nearly as may be, in manner following: There shall be allotted to each citizen one hundred and sixty acres of land boundaries to conform to the government survey—which may be selected by him so as to include improvements which belong to him.' While citizens were thus permitted to make their selections for the purpose of retaining improvements, it seems clear that in case any citizen failed to avail himself of this right, it was permissible for the Commission to make the allotment. We think the district court rightly ruled that the government had not offered evidence competent to impeach the validity of the Commission's action and thus to invalidate the title subsequently conveyed by the patent to Thlocco with the approval of the Interior Department. It follows that the decree of the District Court, dismissing the bill, should be affirmed. Mr. Justice MeReynolds took no part in the consideration or decision of this case.

245.US.154

A specific intent to accept the tidal test of navigability, and so to extend riparian ownership ad filum aque on non-tidal streams which are navigable in fact, is not predicable of a statute adopting the common law of England in general terms only, particularly if enacted later than the decision in The Genessee Chief, 12 How. 443. Hence such a statute, passed by Kansas Territory in 1859 and retained by the State, affords no basis even in purport for denying the power of the Supreme Court of Kansas to apply the test of navigability in fact, as part of the common law, in determining the ownership of a river bed as between the State and riparian owners deriving title under a federal patent issued, before statehood, in 1860. In a mandamus proceeding to test the right of a State to levy charges on sand dredged from a stream by a riparian owner under claim of title ad filum aqua, the latter has not a constitutional right to have the question of navigability determined by a jury. Whether in such a case the state court may take judicial notice that the stream is navigable is a question of local law. So held where judicial notice was taken of the navigability of the Kaw River, the principal river of Kansas, at the state capital, and the decision was supported by the meandering of the stream in original public surveys, and by various state and federal statutes and decisions cited. Assuming that the taking of sand from the bed of a navigable stream be of common right, the State may nevertheless exact a charge from those who take it. River sand appertains to the river bed when at rest; its tendency to migrate does not subject it to acquisition by mere occupancy. 92 Kansas, 169, affirmed.

This is a petition for mandamus to require the Treasurer of the State to transfer certain funds from a special account to the general revenue funds of the State, so that they can be used for paying the expenses of government. The money in question was collected under the State laws of 1913, c. 259, requiring payment of ten per cent. of the market value on the river bank of sand taken by private persons or corporations from the bed of streams subject to the control of the State. It was paid by the plaintiffs in error for sand taken from the Kansas River at Topeka, and it was kept as a separate fund because the plaintiffs in error paid it under duress and protest and claimed the right to recover it before it should lose its identity by the transfer demanded. Under the State procedure the plaintiffs in error were made parties and came in and set up title to the fund. The Supreme Court of the State overruled the claim and directed the issue of the peremptory writ. This case was decided on a motion to quash the answers; the allegations of which, so far as now material, may be summed up as follows. In 1859 the Territorial Legislature of Kansas enacted that the Territory should be governed by the common law of England, which still remains the law of the State. On October 1, 1860, the United States conveyed land adjoining the Kansas River to the predecessor in title of the plaintiffs in error, and as the tides do not ebb and flow in the river, they allege that the conveyance carried title to the middle of the stream; that they were the owners of the sand dredged from the same; that to enforce the provisions of the Act of 1913 against them would infringe the Fourteenth Amendment, and that they paid the sums exacted under protest and duress, the circumstances of which are detailed. The river was meandered on both sides by the surveys of the United States up to above this land, and with the Missouri and Mississippi constitutes an open and unobstructed water way from the up stream end of the meander lines to the Gulf of Mexico and the high seas. But the plaintiff in error Fowler, while adopting this allegation, alleges that it is not and never has been a navigable stream, and in 1864 the Kansas Legislature made a declaration to that effect. There follow allegations that the sand is migratory, and, in short, of the nature of animals ferae naturae, and that ever since the admission of the State the persons within it have taken the sand as of common right. The presence of the sand is alleged to interfere with the use of the stream for its proper purpose of navigation as a valuable commercial highway, the river being alleged to be a public highway the use of which, including the right to take sand, belongs to the people in the State. It also is suggested that if the Court should entertain jurisdiction and determine the questions of fact arising in the proceeding the plaintiffs in error would be deprived of the equal protection of the laws contrary to the Constitution of the United States. The argument of the plaintiffs in error does not need a lengthy response or a statement of all the answers that might be made to it. It was said that the territorial statute gave to the patent of the United States the effect of a grant ad filum aquae. But this attributes too detailed and precise an effect to a general provision of law. We should be slow to believe that a State beginning its organized life with an express adoption of the common law of England, stood any differently from one where the common law was assumed to prevail because the citizens were of English descent. Therefore when the Supreme Court of Kansas regards the principle of the common law to be that the fact of navigability, not the specific test of navigability convenient for England, is what excludes riparian ownership of river beds, it is impossible for us to say that the territorial statute even purports to give greater rights. The Genessee Chief, 12 How. 443, 13 L. Ed. 1058, had been decided before the Territorial Act of 1859 (Laws 1859, c. 121) was passed, and as was observed by Mr. Justice Bradley in Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224, after that decision there seemed to be no sound reason for adhering to the old rule as the proprietorship of the beds and shores of waters held navigable by that case. See further Shively v. Bowlby, 152 U. S. 1, 58, 14 Sup. Ct. 548, 38 L. Ed. 331; Kansas v. Colorado, 206 U. S. 46, 93, 94, 27 Sup. Ct. 655, 51 L. Ed. 956; Donnelly v. United States, 228 U. S. 243, 261, 33 Sup. Ct. 449, 57 L. Ed. 820, Ann. Cas. 1913E, 710. We think it too plain for extended argument that the Territorial Act created no constitutional obstacle to the present decision of the Kansas Court. Then it was said, if navigability in fact is the test, the plaintiffs in error were entitled to go to a jury on that fact, as it was in 1860, the date of the original grant, and the Supreme Court of the State was not entitled to take judicial notice that the river was navigable at Topeka. But there is no constitutional right to trial by jury in such a case, and if a State Court takes upon itself to know without evidence whether the principal river of the State is navigable at the capital of the State we certainly cannot pronounce it error. In this aspect it is a question of State law. Donnelly v. United States, 228 U. S. 243, 262, 33 Sup. Ct. 449, 57 L. Ed. 820, Ann. Cas. 1913E, 710. See Archer v. Greenville Sand and Gravel Co., 233 U. S. 60, 68, 69, 34 Sup. Ct. 567, 58 L. Ed. 850. The fact is of a kind that should be established once for all, not perpetually retried. The Court had too, in favor of its decision, the circumstance that the stream was meandered in the original surveys; the decisions of its predecessors; Wood v. Fowler, 26 Kan. 682, 40 Am. Rep. 330; Topeka Water Supply Co. v. Potwin, 43 Kan. 404, 413, 23 Pac. 578; Johnston v. Bowersock, 62 Kan. 148, 61 Pac. 740; Kaw Valley Drainage District v. Missouri Pacific Railway Co., 99 Kan. 188, 202, 161 Pac. 937; Kaw Valley Drainage District v. Kansas City Southern Ry. Co., 87 Kan. 272, 275, 123 Pac. 991; Id., 233 U. S. 75, 34 Sup. Ct. 564, 58 L. Ed. 857; legislation of the State; Private Laws of 1858, c. 30, § 4, c. 31, § 4, c. 34; 1860, c. 20, § 3, etc.; and of the United States; Act of May 17, 1886, c. 348, 24 St. 57; Act of January 22, 1894, c. 15, 28 St. 27; Act of July 1, 1898, c. 546, 30 Stat. 597, 633, etc.; and the assent, so far as it goes, of this Court; Kansas City Southern Ry. Co. v. Kaw Valley Drainage District, 233 U. S. 75, 77, 34 Sup. Ct. 564, 58 L. Ed. 857, not to speak of the allegations in the answers of the Wear Sand Company, adopted, notwithstanding his denial of navigability, by Fowler, the other plaintiff in error before this Court. The allegation that the sand is migratory and belongs to whoever may reduce it to possession, and the allegation of the public right, are inconsistent, of course, with the claim of title and hardly consistent with the allegation that it is got by dredging. But the fact that it is liable to be shifted does not change its character while at rest upon the river bed, and if there were the public right alleged, it would not hinder the State from collecting, for the good of the whole public, a charge from those individuals who withdraw it from public access. We see nothing in the case of the plaintiffs in error that requires further answers that might be made, or discussion at greater length. Judgment affirmed.

245.US.225

A finding of mineral character made in allowing an entry under the placer mining law is subject to be reconsidered and reversed by the Land Department at any time before the patent issues, upon due notice to the parties interested. Where land embraced in conflicting placer and homestead entries is found, upon hearing in the Land Department, to be non-mineral and therefore is patented to the homesteader, the finding does not conclude a claimant under the placer entry who was not notified and given opportunity to be heard; a trust might be declared in his favor if he proved the land mineral; but not when the evidence confirms the Department's finding. 35 S. Dak. 620, affirmed. THE case is stated in the opinion.

This was a suit to quiet the title to a small tract of land in South Dakota which had been the subject of conflicting claims under the public land laws. One claim was made under the placer mining law and the other under the homestead law. Both claims embraced other lands, the tract in question being all that was common to both. It was subject to disposal under the placer mining law if valuable for placer mining, and under the homestead law1 if valuable only for agriculture. Whether it was valuable for the one purpose or the other was a question of fact to be determined by the officers of the Land Department. The claim under the placer mining law was first brought to the attention of those officers and, upon ex parte proofs presented in support of that claim, they found the tract to be valuable for placer mining and permitted it to be included in a placer entry. The homestead claim was next brought to their attention and, upon ex parte proofs presented in support of that claim, they found the tract to be valuable only for agriculture and permitted it to be included in a homestead entry. Thus the findings upon the ex parte proofs were inconsistent and the tract was included in conflicting entries. This was discovered before either entry was passed to patent, and so a hearing was ordered to determine the true character of the land. The placer entry had been made by two brothers and through some inadvertence one of these was not notified of the hearing. The other brother and the homestead entryman appeared and the hearing proceeded as if all parties in interest were present; that is to say, there was no reference to the absence of the placer claimant not notified. Upon the proofs produced at this hearing the land officers found the tract to have no value for placer mining and to be valuable only for agriculture, and as a result of the finding the tract was eliminated from the placer entry and the homestead entry was passed to patent. The patentee afterward sold and transferred the tract to the plaintiff, who knew that a right to it was still being asserted under the placer entry. By their answer, which was in the nature of a cross-bill, the defendants, who were the placer claimants, asserted that they had located and were entitled to the mining claim before mentioned, that the tract in question was lawfully included in that claim and was valuable for placer mining, that the entry of the claim at the land office was lawful and entitled them to a patent, and that the subsequent elimination of the tract from that entry was unlawful and violative of their rights, because the earlier finding that the tract was valuable for placer mining was conclusive upon that point, and, if not conclusive, could not be recalled or disturbed except upon due notice to both placer claimants and after giving them a reasonable opportunity to sustain their entry by evidence and otherwise. The right of the homestead claimant to have the tract patented to him was questioned on other grounds, but these need not be noticed, for they plainly were such as could not be urged by the defendants. The answer concluded with a prayer that the plaintiff be decreed to hold the title to the tract in trust for the defendants and compelled to convey the same to them. At the trial the evidence bearing upon the character of the tract disclosed, without any contradiction, that it had no value for placer mining, but was strictly agricultural land, and that its only use by the placer claimants had been for farming purposes. The plaintiff was given a decree, which was affirmed, 35 S. D. 620, 153 N. W. 893, and the defendants seek a review here. A statement of the case leaves little to be said, for the pertinent rules of decision are well settled and easily applied. The original finding respecting the character of the tract was not in itself final or conclusive, but essentially interlocutory. It was only a step in the proceedings looking to the ultimate disposal of the title, and, until the issue of a patent, was as much open to reconsideration and reversal as are the interlocutory orders or decrees of a court of equity until the entry of a final decree. New Orleans v. Paine, 147 U. S. 261, 266, 13 Sup. Ct. 303, 37 L. Ed. 162; Michigan Land & Lumber Co. v. Rust, 168 U. S. 589, 592, 18 Sup. Ct. 208, 42 L. Ed. 591 et seq.; Hawley v. Diller, 178 U. S. 476, 488, 20 Sup. Ct. 986, 990 (44 L. Ed. 1157). In the last case this court said: 'The Land Department has authority, at any time before a patent is issued, to inquire whether the original entry was in conformity with the act of Congress.' Without any doubt both placer claimants were entitled to notice of the intended reconsideration of the character of the tract and to an opportunity to sustain the original finding by evidence and otherwise. Parsons v. Venzke, 164 U. S. 89, 91, 17 Sup. Ct. 27, 41 L. Ed. 360, and cases supra. One was not notified and so was not accorded the opportunity to which he was entitled. This irregularity prevented the ultimate finding, upon which the homestead patent rested, from being conclusive of the character of the tract, as against him. Thayer v. Spratt, 189 U. S. 346, 351, 23 Sup. Ct. 576, 47 L. Ed. 845. He, therefore, was entitled in this suit to assert and show if such was the fact, that the tract was valuable for placer mining, as originally found by the land officers; and had he shown that this was its real character, he would have been entitled to a decree charging the title with an appropriate trust for his benefit. Guaranty Savings Bank v. Bladow, 176 U. S. 448, 453, 454, 20 Sup. Ct. 425, 44 L. Ed. 540; Thayer v. Spratt, supra. But no such showing was made at the trial. On the contrary, the evidence established that the tract was strictly agricultural, and therefore not subject to entry or acquisition under the placer mining law. Thus it appears that the irregularity complained of was not prejudicial and did not result in the issue of a patent to one when it should have gone to another. See Bohall v. Dilla, 114 U. S. 47, 5 Sup. Ct. 782, 29 L. Ed. 61; Sparks v. Pierce, 115 U. S. 408, 6 Sup. Ct. 102, 29 L. Ed. 428; Johnson v. Riddle, 240 U. S. 467, 481, 36 Sup. Ct. 393, 60 L. Ed. 752. Judgment affirmed.

242.US.375

By the terms of the Indiana Railway Law of May 11, 1852, and amendments (1 Ind: Rev. Stats. 1852, p. 409, § 13; 2 Bums' Ann. Ind. Stats. 1914, §§ 5176 et seq., § 5195), as construed by the Supreme Court of the State, the obligation assumed by companies deriving their franchises thereunder to construct their railways over streams, water-courses and canals "so as not to interfere with the free use of the same," etc., is a continuing obligation, under which such companies must bear without compensation the burden of repairing and adjusting their roads and bridges when canals are made across their rights of way,* or natural streams intersecting them are deepened, in the execution of public drainage projects, pursuant to the Drainage Act of March 11, 1907 (Laws 1907, p. 508; 3 Burns' Ann. Ind. Stats. 1914, § 6140). Due process is not denied by refusing compensation for the temporary inconvenience, or the cost of railway reconstruction, resulting from the making of a drainage improvement across the rights of way of railway companies, when the improvement is made for the public benefit in the proper exercise of the state police power, and neither wantonly nor arbitrarily, when no land of the companies is taken, but their easements merely crossed, and when the duty of accommodating their railroads to such improvements is part of the obligation assumed in accepting their franchises from the State. The state drainage law, § 3, as construed by the state court, allows compensation for damages to the roads and bridges of public corporations, viz., counties, which have not agreed to bear such damages themselves, but no compensation for like damages to private railway corporations which have made, such agreements in advance, through their charter undertakings. Held, a substantial distinction, satisfying the equal protection clause of the Fourteenth Amendment. 182 Indiana, 178, affirmed.

The Little Calumet river rises in La Porte county, Indiana, flows westerly across that and the adjoining counties of Porter and Lake into the state of Illinois, and, after continuing its course for some distance in that state, empties into the Big Grand Calumet, which in turn empties into Lake Machigan. In Indiana the river runs approximately parallel to the south shore of the Lake. Intervening is a ridge of sandy land about 1 mile in width, 30 feet higher than the water level of the lake, and 10 feet higher than the river. The Lake Shore & Michigan Southern and the Chicago, Indiana, & Southern Companies own parallel railroad lines running along this ridge. Neither of these roads crosses the river in Indiana. The Michigan Central Railroad crosses the river in that state upon a steel bridge resting on abutments and piers. The Calumet valley, in Porter and Lake counties, is a mile or more in width, lying between the ridge on the north and low hills on the south. The watershed drained by the river in Indiana is about 350 square miles. At times the river fails to carry within its banks all the water, and the overflows produce a marsh having an area of 14,000 acres. Under An Act Concerning Drainage, approved March 11, 1907 (Act 1907, p. 508; 3 Burns's Anno. Stat. [Ind.] 1914, § 6140), application was made by defendants in error, owners of lands affected by the overflows, to the Porter circuit court, for the establishment of a proposed plan of drainage, its essential features being the cutting of an artificial channel for a considerable distance along the course of the Little Calumet and at such a gradient as to reverse the direction of its flow, and the construction of an outlet for its waters in the form of an open ditch to run northwardly, cutting through the sandy ridge and emptying into the Lake. Pursuant to the provisions of the act, the petition was referred to the drainage commissioners. They made a report in favor of the proposed plan, and assessed substantial damages, in excess of benefits, in favor of the Chicago, Indiana, & Southern and the Lake Shore & Michigan Southern Companies with respect to their rights of way. No benefits or damages were appraised to the Michigan Central. Under § 4 of the act, certain landowners assessed with benefits filed remonstrances against the awards of damages to the former two companies. Each of the three companies filed remonstrances: the Lake Shore & Michigan Southern and the Chicago, Indiana, & Southern upon the ground that the damages awarded to them were inadequate because the new ditch, where it was to cross their rights of way, would be 70 feet wide at the bottom, about 30 feet deep, and about 200 feet wide at the top, and the expense of bridging it, with the tracks, would in each instance be unwards of $100,000; the Michigan Central, because no damages were assessed in its favor, although, by the deepening of the channel of the river at its crossing, it would be required to take out the present piers and abutments and erect new ones to support the bridge, at a cost of about $60,000. Upon the commissioner's report and the remonstrances the matter came on for hearing before the circuit court, where findings were made setting forth the necessity for the drainage, stating the plan in detail, finding that it would be practicable to accomplish the proposed drainage without an expense exceeding the aggregate benefits; that the proposed work would benefit the public health, would improve the public highways in several townships specified, and would be of public utility. It was further found that the Chicago, Indiana, & Southern and Lake Shore & Michigan Southern Companies, whose roads were to be crossed by the main ditch, had no rpoperty other than their right of way that would be affected or interfered with or touched by the drainage proceeding, and these companies would not be damaged by the construction of the proposed drain; and that at the point where the ditch was to pass under the bridge of the Michigan Central the natural channel of the stream would have to be deepened, and this would necessitate the rebuilding of the abutments and piers upon which the bridge rested, but that this company would neither be damaged nor benefited by the proposed drain. A motion for a new trial having been overruled, a judgment was rendered confirming the report of the commissioners as modified by the court, and ordering that the proposed work of drainage be established. The three companies appealed to the supreme court of Indiana, where the judgment was affirmed (182 Ind. 178, 104 N. E. 975, 105 N. E. 905), and they bring the case here upon questions raised under the 14th Amendment to the Federal Constitution. The principal contention of the Lake Shore & Michigan Southern and the Chicago, Indiana, & Southern Companies is that, since their railroads are not within the area to be drained, and neither contribute to the formation of the marsh nor are to be in any wise benefited by its drainage, their lands can be taken only through the exercise of the power of eminent domain, with appropriate compensation, and that a denial of such compensation is a taking of their property without due process of law. A right to compensation is asserted in behalf of the Michigan Central on the ground that its present bridge and abutments form no obstruction to the natural flow of the Little Calumet river. It will be observed that none of the lands of any plaintiff in error is expropriated. The damage they suffer is confined to a temporary inconvenience in the use of their rights of way pending the construction of the drain, and the necessity for making substantial expenditures of money in order to pass their railroads over the new watercourse. But the record shows that each of the companies was organized and had its existence under the general laws of the state for the incorporation of railroad companies, that is to say, an act approved May 11, 1852, and amendments thereto (1 Ind. Rev. Stat. 1852, p. 409; 2 Burns's Anno. Stat. [Ind.] 1914, §§ 5176 et seq.). By § 13 of this act (as found in Burns, § 5195) it is declared: 'Every such corporation shall possess the general powers, and be subject to the liabilities and restrictions expressed in the special powers following: . . . Fifth: To construct its road upon or across any stream of water, watercourse, highway, railroad or canal, so as not to interfere with the free use of the same, which the route of its road shall intersect, in such manner as to afford security for life and property; but the corporation shall restore the stream or watercourse, road or highway, thus intersected, to its former state, or in a sufficient manner not to unnecessarily impair its usefulness or injure its franchises.' Concerning the duty thus imposed upon railroad companies with respect to highway crossings, it has been held by the supreme court of Indiana in a long line of cases that the duty is applicable not only to the original construction of a railroad across highways then in existence, but also where highways are laid out and opened across a railroad after its construction; that it is a continuing duty, requiring the railroad to keep pace with the times, and the increase of public travel, the change of methods and improvements of highways, and the public desire for the increased ease and convenience of the traveling public. Louisville, N. A. & C. R. Co. v. Smith, 91 Ind. 119, 121; Evansville & T. H. R. Co. v. Crist, 116 Ind. 446, 454, 2 L.R.A. 450, 9 Am. St. Rep. 865, 19 N. E. 310; Chicago, I. & L. R. Co. v. State, 158 Ind. 189, 191, 63 N. E. 224; Chicago & S. E. R. Co. v. State, 159 Ind. 237, 240, 64 N. E. 860; Baltimore & O. S. W. R. Co. v. State, 159 Ind. 510, 519, 65 N. E. 508; Lake Erie & W. R. Co. v. Shelley, 163 Ind. 36, 41, 71 N. E. 151; Southern Indiana R. Co. v. McCarrell, 163 Ind. 469, 473, 71 N. E. 156; Vandalia R. Co. v. State, 166 Ind. 219, 223, 117 Am. St. Rep. 370, 76 N. E. 980; Cincinnati, I. & W. R. Co. v. Connersville, 170 Ind. 316, 323, 83 N. E. 503, affirmed by this court in 218 U. S. 336, 54 L. ed. 1060, 31 Sup. Ct. Rep. 93, 20 Ann. Cas. 1206; New York, C. & St. L. R. Co. v. Rhodes, 171 Ind. 521, 525, 24 L.R.A.(N.S.) 1225, 86 N. E. 840; Pittsburgh, C. C. & St. L. R. Co. v. Gregg, 181 Ind. 42, 53, 102 N. E. 961. But in the Railroad Act streams, watercourses, and canals are mentioned along with roads and highways. The terms employed are broad enough to include artificial watercourses, whether employed for traffic, for irrigation, or for drainage. And accordingly it has been held by the supreme court of the state that, with respect to a public ditch constructed under the Drainage Act of 1907, railroad companies are under the same duty as with respect to highways, and that the company acquires its right of way subject to the right of the state to extend such ditches across it, without compensation to the company for the interruption and inconvenience, if any, or for increased expense or risk, or for the cost of accommodating the railroad line to the crossing. Chicago & E. R. Co. v. Luddington, 175 Ind. 35, 38-40, 91 N. E. 939, 93 N. E. 273; Wabash R. Co. v. Jackson, 176 Ind. 487, 490, 95 N. E. 311, 96 N. E. 466. No question is made but that the settled law of the state is as we have stated it, and that the charter obligations of plaintiffs in error are such as we have defined. An attempt is made to distinguish the Luddington Case upon the ground that the railroad there in question was within the drainage district, and the Jackson Case upon the ground that the railroad had built an embankment across a valley without providing sufficient culverts to carry off the water of the creek in time of heavy rains. It is contended that since, in the present case, the Lake Shore & Michigan Southern and the Chicago, Indiana, & Southern Roads lie upon the top of the ridge between the Little Calumet river and Lake Michigan, and do not in any wise cause or contribute to the marsh, and are not benefited by the proposed drainage, they cannot lawfully be included within the drainage district. And as to the Michigan Central, it is argued that, since its bridge as heretofore constructed does not obstruct the natural flow of the stream, it cannot be subjected to any part of the cost of the drainage system. These distinctions, and a reference made in the same connection to Myles Salt Co. v. Iberia & St. M. Drainage Dist. 239 U. S. 478, 60 L. ed. 392, L.R.A. ——, ——, 36 Sup. Ct. Rep. 204, are aside from the real point of the case. The state is not proposing to assess plaintiffs in error for benefits with respect to the drainage project, nor to tax them for its support. It is requiring them merely to bear the cost of constructing crossings for their railroad lines over the proposed new channel and outlet, 'so as not to interfere with the free use of the same,' and 'in a sufficient manner not to unnecessarily impair its usefulness.' With respect to this duty, if the state has a right to impose it in aid of the drainage project, the remoteness or proximity of the area to be drained is wholly immaterial. In view of the obligations assumed by the respective companies when they accepted their franchises at the hands of the state, it is very clear that the state may exercise its police power in laying out an artificial watercourse across the rights of way without making compensation to the companies for the inconvenience and expense to which they are thereby subjected, unless, indeed, it be made to appear that the power is being exerted arbitrarily or wantonly, or for private as distinguished from public benefit, or otherwise in disregard of the fundamental rights of the companies concerned, in either of which cases there would be an abuse rather than an exercise of the power, and the project could not lawfully be carried out against their opposition, with or without compensation. In Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 252, 41 L. ed. 979, 990, 17 Sup. Ct. Rep. 581, where the city was condemning certain parts of the right of way of the railroad for the opening and widening of a street across it, and only nominal compensation was awarded, it was contended among other things that the company was deprived of its property without due process of law because, in ascertaining the compensation, the cost of constructing gates and a tower for operating them, planking the crossing, filling between the rails, putting in an extra rail, and the annual expense of depreciations, maintenance, etc., were disregarded. But the court held that since the company took its charter and laid its tracks subject to the condition that their use might be regulated by the state so as to insure the public safety, the exercise of that authority by the state was not subject to a condition that the company should be indemnified for the damage resulting from its exercise. In Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 561, 582, 595, 50 L. ed. 596, 605, 610, 26 Sup. Ct. Rep. 341, 4 Ann. Cas. 1175, a plan of drainage required the enlarging and deepening of a natural watercourse over which the railway crossed by a bridge, and the plan could not be carried out without the removal of certain timbers and stones placed in the creek by the company when it constructed the foundation for the bridge, and these could not be removed without destroying the foundation and rendering it necessary to construct another bridge with an opening wide enough to carry the increased flow of the creek under the drainage system adopted. The court held it to be the duty of the railway company at its own expense to remove from the creek the bridge, culvert, timbers, and stones placed there by it, and at its own expense to erect and maintain a new bridge to conform to the regulation established by the drainage commissioners under the authority of the state, and that the enforcement of such a requirement would not amount to a taking of private property for public use within the meaning of the Constitution. In Cincinnati, I. & W. R. Co. v. Connersville, 218 U. S. 336, 344, 54 L. ed. 1060, 1064, 31 Sup. Ct. Rep. 93, 20 Ann. Cas. 1206, it was held that since the railway company accepted its franchise from the state subject to the condition that it would conform, at its own expense, to any regulations not arbitrary in their character as to the opening or use of streets which had for their object the safety of the public or the promotion of the public convenience, the company had no right to be reimbrused for the moneys necessarily expended in constructing a bridge over a public street laid out through its embankment. In Chicago, M. & St. P. R. Co. v. Minneapolis, 232 U. S. 430, 58 L. ed. 671, 34 Sup. Ct. Rep. 400, the same doctrine was applied, and held to sustain the refusal of compensation for the cost of constructing and maintaining a railroad bridge across a gap in the right of way made by the construction, under the authority of the state, of a canal to unite two lakes that formed a part of a public park. It requires no argument to show that the establishment of a system of public drainage in the interest of the health and general welfare of the people is likewise an object that legitimately invokes the exercise of the police power of the state. New Orleans Gaslight Co. v. Drainage Commission, 197 U. S. 453, 460, 49 L. ed. 831, 834, 25 Sup. Ct. Rep. 471; Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 561, 592, 50 L. ed. 596, 609, 26 Sup. Ct. Rep. 341, 4 Ann. Cas. 1175; Atlantic Coast Line R. Co. v. Goldsboro, 232 U. S. 548, 561, 58 L. ed. 721, 727, 34 Sup. Ct. Rep. 364. In the present case it is not and could not reasonably be contended that the state is exercising its power arbitrarily, or wantonly, or for a private benefit. It cannot be doubted that the general object of the Drainage Act of 1907 is to subserve the public interest. Its 2d section requires that petitioners for the establishment of a drainage project shall declare their opinion 'that the public health will be improved, or that one or more public highways of the county, or street or streets of, or within the corporate limits of a city or town, will be benefited by the proposed drainage, or that the proposed work will be of public utility.' [3 Burns's Anno. Stat. (Ind.) 1914, § 6141, p. 131.] By the 3d section the commissioners are required to consider whether this is true, and, if not, the petition is to be dismissed; and by § 4 it is made a sufficient ground of remonstrance, resulting, if sustained, in the dismissal of the proceedings, 'that the proposed work will neither improve the public health, nor benefit any public highway of the county, nor be of public utility.' As to the particular project under consideration, it is specifically found, as we have seen, that a public benefit will result. In the Luddington Case, 175 Ind. 38, 91 N. E. 939, 93 N. E. 273, it was expressly declared that ditches established under this law are public ditches of the state, whose construction and repair are matters of public or state concern. There exists, therefore, no basis for holding that, by the judgment under review, the property of any of the plaintiffs in error is taken without due process of law within the meaning of the 14th Amendment. The 'equal protection' clause of the same Amendment is invoked upon the ground that whereas by § 3 of the Drainage Act (Laws 1907, p. 513; 3 Burns's Anno. Stat. [Ind.] 1914, § 6142, p. 135) the commissioners are required to 'assess the benefits or damages as the case may be to each separate tract of land to be affected thereby, and to easements held by railway or other corporations, as well as to cities, towns, or other public or private corporations, including any land, rights, easements or water power, injuriously or beneficially affected,' there is discrimination in the judgment, in that an award is made in favor of Lake county for damage to bridges and highways, while compensation to plaintiffs in error for damages to their respective roads, and to the Michigan Central for damages to its bridge, is denied. But, as has been held many times, the 'equal protection' clause does not deprive the states of power to resort to classification for purposes of legislation; and unless it appears that a state law as construed and applied by the state court of last resort bases discriminations upon arbitrary distinctions, we cannot judicially declare that the state has refused to give equal protection of the laws. Singer Sewing Mach. Co. v. Brickell, 233 U. S. 304, 315, 58 L. ed. 974, 979, 34 Sup. Ct. Rep. 493; Missouri, K. & T. R. Co. v. Cade, 233 U. S. 642, 650, 58 L. ed. 1135, 1138, 34 Sup. Ct. Rep. 678. In the present case the supreme court of Indiana in effect held that § 3 of the Drainage Act did not entitle a railway company to damages in respect of its right of way which was not affected by the proposed drainage in any manner otherwise than, by acceptance of its charter, it had agreed to submit to. There is a very evident and substantial basis for a distinction that denies compensation to a private corporation in such a case, while at the same time allowing compensation to a public corporation that has made no such agreement. Judgment affirmed.

246.US.446

Lands within the limits of an incorporated city, whether actually occupied or sought to be entered as a townsite or not, were excluded from acquisition under the Pre-emption Act. An attempted pre-emption settlement on such land, and filing of declaratory statement in the local land office, do not affect the disposing power of Congress or operate to exclude the tract from subsequent grant of right of way "through the public lands," containing no excepting clause. The Act of March 3, 1877, c. 113, 19 Stat. 392, did not confirm or provide for confirming such absolutely void pre-emption claims so as to disturb rights vested before the date of the act under a railroad right of way grant. The act granting a right of way "through the public lands" to the Utah Central Railroad Company (c. 2, 16 Stat. 395,) applied to public lands over which the road had been constructed within the corporate limits of Salt Lake City but which never were occupied as a townsite or attempted to be entered as such. The Townsite Act is not inconsistent with this conclusion. 46 Utah, 203, affirmed.

A small parcel of land in Utah is here the subject of conflicting claims—one under a patent to Malcolm Macduff issued under the Pre-Emption Act, c. 16, 5 Stat. 453, and the other under an act, chapter 2, 16 Stat. 395, granting a right of way 'through the public lands' to the Utah Central Railroad Company. The court below sustained the latter claim, 46 Utah, 203, 148 Pac. 439, and the case is here on a writ of error allowed before the Act of September 6, 1916, c. 448, 39 Stat. 726, became effective. Macduff's pre-emption claim was initiated by settlement June 10, 1869; his declaratory statement was filed in the local land office July 21 of that year; he paid the purchase price and secured an entry January 19, 1871, and the patent was issued June 5, 1871. The right of way was granted December 15, 1870. At that time the railroad was completed and in operation for its full length. Cong. Globe, 41st Cong. 2 Sess. 4512, 5635; Moon v. Salt Lake County, 27 Utah, 435, 442, 76 Pac. 222. It was constructed late in 1869 or early in 1870, after Macduff filed his declaratory statement and before he paid the purchase price or secured his entry. Continuously after 1860 the tract sought to be pre-empted was within the corporate limits of Salt Lake City, as defined by a public statute, but was never actually occupied as a town site nor attempted to be entered as such. The parcel in controversy is within that tract, is also within the exterior lines of the right of way, and is occupied and used for right of way purposes. The plaintiff in error is the successor in interest and title of Macdu f and the defendant in error is the like successor of the Utah Central Railroad Company. The Pre-Emption Act, § 10, excluded from acquisition thereunder all lands 'within the limits of any incorporated town.' Thus the land which Macduff sought to pre-empt was not subject to pre-emption, and could no more be entered or acquired in that way than if it were in an Indian or military reservation. See Wilcox v. Jackson, 13 Pet. 498, 511, 10 L. Ed. 264. That is was not actually occupied as a town site, nor sought to be entered as such, is immaterial. As Mr. Justice Miller pointed out in Root v. Shields, 20 Fed. Cas. 1160, 1166, Congress did not confine the exclusion to such lands as were so occupied, or such as were subject to town site entry, but 'deemed the short way the best way—to exclude them all from the operation of the act by a general rule.' In that case the learned justice held a pre-emption entry of land within the corporate limits of Omaha 'illegal and void,' and said in that connection: 'Again, the defect in the title was a legal defect; it was a radical defect. It was as if no entry had ever been made. By it Shields did not take even an equity. After he had gone through the process of making the entry, after he received the patent certificate, Shields had no more right, or title, or interest in the land than he had before. And as he had none, he could convey no interest in the land. By the deed which he made, and by the successive deeds which they received, his grantees took no more than he had, which was nothing at all.' In the case of Burfenning v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 163 U. S. 321, 16 Sup. Ct. 1018, 41 L. Ed. 175, a plaintiff in ejectment relied on a patent issued under the homestead law, which adopted the excluding provision of the pre-emption act, and his title was challenged on the ground that the entry and patent were for land within in the corporate limits of Minneapolis. This court observing, first, that the record affirmatively disclosed that the land was in the city limits when the claim was initiated, and second, that the case was not one where a finding by the Land Department on a question of fact resting on parol evidence was sought to be drawn in question, held the patent void under the general rule that: 'When by act of Congress a tract of land has been reserved from homestead and pre-emption, or dedicated to any special purpose, proceedings in the Land Department in defiance of such reservation or dedication, although culminating in a patent, transfer no title and may be challenged in an action at law.' Applying these views, we think Macduff's settlement and declaratory statement under the pre-emption act were of no effect. They neither conferred any right on him nor took any from the government. His claim was not merely irregular or imperfect, but was an impossible one under the law, and so the status of the land was not affected thereby. The land continued to be subject to the disposal of Congress and came within the terms of the right of way act as much as if he were making no claim to it. Of course, the presence on public land of a mere squatter does not except it from the operation of such an act containing, as here, no excepting clause. It is said that by the act of March 3, 1877, c. 113, 19 Stat. 392. Congress confirmed or provided for the confirmation of pre-emption claims such as this. Assuming, without so deciding, that the act is susceptible of this interpretation, we think it does not disturb rights which were conferred and became vested under the right of way act more than six years before. It seems also to be thought that the town-site law in some way prevented the right of way act from reaching public land within the city limits, but on examining both statutes we are persuaded thare is no basis for so thinking. Certainly it was not intended that the right of way should stop at the city limits, and, as the town-site law interposed no obstacle, we think the right of way act was intended to and did apply to the public land lying inside those limits over which the railroad had been constructed. Judgment affirmed.

244.US.582

An order of the Secretary of the Interior, approving an Indian agent's recommendation that restrictions on alienation be removed from an k dian's allotment, was made on March 26, "to be effective thirty days from date." Held that the approval became effective on tne thirtieth day after its date, i. e., on April 25th, and enabled the allottee to make a valid conveyance on that day. 47 Oklahoma, 348, affirmed. TE case is stated in the opinion.

This writ of error presents but a single Federal question, and that is within narrow compass. The suit involves the title to a part of the surplus allotment of Mary Jane Lanham, who was a Choctaw Indian of three-fourths blood. Defendant in error claims title under a deed made by her on April 25, 1908. It is conceded that because of legislation by Congress prior to the Act of April 21, 1904 (chap. 1402, 33 Stat. at L. 189, 204), the land was inalienable, unless the restriction upon its alienation had been removed by an order of the Secretary of the Interior, made pursuant to that act. In conformity to its provisions, the United States Indian agent, after investigation, made the appropriate finding and recommended the removal of restrictions upon the alienation by Mary Jane Lanham of her surplus allotment, and this was approved by the Secretary of the Interior in writing under date of March 26, 1908, in these terms: 'Approved: this approval to be effective thirty days from date.' If either the day of the approval or the day of the conveyance be included, thirty days had expired on the day the deed was executed. The supreme court of Oklahoma, following Taylor v. Brown, 147 U. S. 640, 37 L. ed. 313, 13 Sup. Ct. Rep. 549, and Baker v. Hammett, 23 Okla. 480, 100 Pac. 1114, held that the date of approval should be included in computing the thirty-day period, and that therefore the deed was valid (——Okla. ——, 148 Pac. 844). In our opinion the decision was correct, although we sustain it upon grounds differing somewhat from those upon which the cited cases rest. In Taylor v. Brown, the question arose under the proviso to § 15 of an Act of March 3, 1875 (18 Stat. at L. 402, 420, chap. 131, Comp. Stat. 1916, § 4611), that the title to lands acquired by certain Indians under that section should 'remain inalienable for a period of five years from the date of the patent.' In Baker v. Hammett, the language in question was that contained in § 16 of the Supplemental Creek Agreement (Act of June 30, 1902, chap. 1323, 32 Stat. at L. 500, 503), to the effect that lands allotted to citizens should not be alienated 'before the expiration of five years from the date of the approval of this supplemental agreement.' In each case the statute contemplated a vesting of title accompanied with a prohibition of alienation during a specified period, and it was held that the initial date should be included in the computation because, but for the restriction, the land might have been alienated on that date. Here the restriction upon alienation arose out of antecedent legislation, and continued until the effective approval by the Secretary of the Interior of an appropriate finding by the Indian agent. The approval was required to be, and in this case was, in writing, and we have to do merely with its interpretation. What, then, is the meaning of 'effective thirty days from date?' Certainly this cannot be construed the same as if it read, 'effective after thirty days from date.' Plaintiffs in error, in argument, suppose it to have read: 'effective one day from date,' and ask whether in that event it would have become effective immediately upon being signed by the Secretary of the Interior. We answer 'No,' but that it would have become effective on the following day; that is, on the first day after its date. By like reasoning, the order as written became effective on the 30th day after its date; that is to say, on April 25th, and enabled the allottee to make a valid conveyance on that day. Judgment affirmed.

245.US.328

Error committed by the District Court in admitting former judgments in evidence and in rendering judgment on such evidence against a party who objects that they do not bind him but who is fully heard does not constitute a denial of due process of law. Writ of error dismissed.

This is an action of ejectment brought by the Buffalo Creek Coal & Coke Company in the District Court of the United States for the Southern District of West Virginia. Jurisdiction of that court was invoked solely on the ground of diversity of citizenship. A verdict was directed for the plaintiff below; and the case was brought here by direct writ of error, defendants below claiming that, by the action of the lower court they have been deprived of their property without due process of law in violation of the Fifth and Fourteenth Amendments of the federal Constitution. Plaintiff below set up title from the state derived through mesne conveyances, by virtue of sales made for the benefit of the school fund under statutes which have repeatedly been held valid by this court.1 The action of which defendants complain as depriving them of due process of law, is the admission in evidence herein of the records and papers in three proceedings brought in the state courts of West Virginia under these statutes, and the rendering of judgment herein against them. As the action now complained of is not the action of a state, the Fourteenth Amendment can have no application. And the claim that the action of the court violates the Fifth Amendment is likewise unfounded. It was the contention of the plaintiff below that the records and papers in the three suits established title in those under whom it claims; and also that the decrees in thosesuits created res judicata as against the defendant, because their predecessors in title had been parties or privies to those suits. The defendants below contended among other things, that the premises in question were not within the tracts affected by one or more of the decrees in those suits and that they were not bound by any of them. It is conceivable that the defendants below were right in whole or in part, and that the trial judge erred in admitting some or all of the evidence objected to and in rendering judgment for the plaintiff. But error of a trial judge in admitting evidence or entering judgment after full hearing does not constitute a denial of due process of law. Central Land Co. v. Laidley, 159 U. S. 103, 112, 16 Sup. Ct. 80, 40 L. Ed. 91. The writ of error must be Dismissed.

245.US.192

Under the Act of April 26, 1906, § 19, c. 1876, 34 Stat. 137, and the Act of May 27, 1908, § 4, c. 199, 35 Stat. 312, providing that allotments in the Five Civilized Tribes from which restrictions on alienation have been removed shall be subject to taxation, land allotted to a Creek Freedwoman as a homestead under the Act of June 30, 1902, c. 1323, 32 Stat. 500, lost its tax exemption when the restrictions were removed by the Secretary of the Interior upon the petition of the allottee under the townsite provision of the Act of March 3, 1903, c. 994, 32 Stat. 996. Choate v. Trapp, 224 U. S. 665, distinguished. 45 Oklahoma, 51, affirmed.

Error to review a judgment of the Supreme Court of Oklahoma sustaining the taxation of lands which were allotted to a Creek freedwoman under section 16 of the Allotment Act. 32 Stat. 500, c. 1323. The suit was instituted by plaintiffs in error in the district court of Okmulgee county to enjoin defendant in error, as treasurer of the county, from selling the lands and placing a penalty thereon or taking any steps towards collecting the taxes. Plaintiffs in error are the owners of certain lots in the city of Okmulgee, Oklahoma, deriving title to the same through mesne conveyance from Sarah Smith, a freedwoman and citizen of the Creek Nation, to whom the lands had been patented as a homestead. A certain part of the lands was conveyed by Sarah Smith to one Nathan Boyd and was by him surveyed, platted and laid out in blocks, lots and streets as the Capitol Heights addition to the city of Okmulgee, and it is now a part of that city. The remaining portion of the homestead land Sarah Smith also caused to be surveyed, laid out and platted in lots, blocks and streets as the Capitol Heights Second addition to the city of Okmulgee. The county board of commissioners placed the lots upon the tax duplicates of the county and refused to remove them therefrom upon petition of plaintiffs in error, who thereupon commenced this suit. Decree was entered for plaintiffs in error, which was reversed by the Supreme Court of the state. The land allotted to Sarah Smith and laid out in lots as described was allotted to her by deed executed April 23, 1904, under the acts of Congress of March 1, 1901, and June 30, 1902. 31 Stat. 861; 32 Stat. 500. By the former act it was provided that the land should 'be non-taxable and inalienable and free from any incumbrance whatever for twenty-one years.' Section 7. By the latter act it was provided, in amendment of the other act, that the land should 'be and remain non-taxable, inalienable, and free from any incumbrance whatever for twenty-one years from the date of the deed therefor.' Section 16. Both acts provided for the laying out of townsites under certain circumstances, and by the Indian Appropriation Act of March 3, 1903 (32 Stat. 996), it was enacted 'that nothing herein contained shall prevent the survey and platting, at their own expense, of townsites by private parties where stations are located along the lines of railroads, nor the unrestricted alienation of lands for such purposes, when recommended by the Commission to the Five Civilized Tribes and approved by the Secretary of the Interior.' Sarah Smith availed herself of these provisions, that is, she petitioned the Commission to the Five Civilized Tribes for the removal of the restrictions against alienation for the purpose of permitting her to sell part of the land for townsite purposes. The Commission, after investigation, made a report to the Secretary of the Interior, recommending the removal of the restrictions. The Indian Office concurred in the recommendation and granted the petition and authorized her to sell the land. Thereupon (February 28, 1907) she conveyed 1.69 acres of the land by warranty deed to one Nathan Boyd, as has been said, who platted the land deeded to him in town lots, and Sarah Smith, after July 26, 1908, so platted the remainder of the land, and plaintiffs in error derive title from her and him. The contentions of the parties are quite accurately opposed and are in short compass. Plaintiffs in error contend that when the land was allotted to Sarah Smith non-taxability was given it by a valid act of Congress and accompanied the land to her grantees, and this in consideration of the surrender by her of the rights she had in common with other members of the Creek Tribe to the tribal lands. The opposing contention is that she devested the land of non-taxability by petitioning for and accepting a right to alienate it. A determination between the contentions depends upon certain acts of Congress in addition to those we have mentioned, and their consideration and construction therefore become necessary. The deed allotting the land to Sarah Smith, as we have seen, provided, in accordance with the act of Congress under which it was executed, that it should 'be non-taxable and inalienable * * * for twenty-one years.' It will be observed that the right (non-taxability) and the restriction (inalienability) were concomitants and necessarily they concerned alone the Indian, benefited her to the extent of the right, protected her by the extent of the restriction. Accommodation to new conditions became necessary, and Congress, by an act passed March 3, 1903, hereinabove quoted, provided for the survey and platting of townsites out of allotted lands, when recommended by the Commission to the Five Civilized Tribes and approved by the Secretary of the Interior, and permitted the 'unrestricted alienation of lands for such purposes.' A consequence of the exercise of the privilege so given was imposed by certain acts of Congress: (1) That of April 26, 1906, section 19 of which is as follows: 'That all lands upon which restrictions are removed shall be subject to taxation, and the other lands shall be exempt from taxation as long as the title remains in the original allottee.' (2) That of May 27, 1908, section 4 of which reads as follows: 'That all lands from which restrictions have been or shall be removed shall be subject to taxation and all other civil burdens as though it were the property of other persons than allottees of the Five Civilized Tribes.' It was after the passage of the act of April 26, 1906, that Sarah Smith petitioned for the removal of the restrictions upon her homestead, that is, its alienation for townsite purposes, and conveyed to Boyd; and it was after the passage of the act of May 27, 1908, that she platted the land as stated. She and her grantees must, therefore, be deemed to have accepted the consequences of her acts, to wit, that the land thereafter should be subject to taxation. And this is not taking from her or them a vested right; it is simply enforcing against her and them the results of a bargain, and, it may be presumed, a beneficial bargain. The contention of plaintiffs in error overlooks the fact that the Commission to the Five Civilized Tribes and the Secretary of the Interior are instruments of the government, delegated, it is true, to extend a privilege, but bound, in extending it, by the laws of the United States; that is, that they in granting it and Sarah Smith in accepting it did so under the conditions imposed by those laws; and Choate v. Trapp, 224 U. S. 665, 32 Sup. Ct. 565, 56 L. Ed. 941, is not opposed. In that case it was decided that an Indian of one of the Five Civilized Tribes had an equitable interest in tribal lands which when given up constituted a consideration for his allotment and its exemption from taxation, and a law of the state of Oklahoma taxing the allotment while in possession of the Indians was declared invalid. The acts of Congress, confirming previous agreements, provided that the lands allotted should be non-taxable while the title remained in the original allottee and provided for alienation within certain periods. The state argued nevertheless that there was in fact no tax exemption but that the provision for it was but an additional prohibition against a forced sale1 and that when restrictions against alienation were removed by the act of Congress of 1908 (35 Stat. 312) the provision for tax exemption went as a necessary part thereof. The contention was rejected, and rightly so, and, as was aptly said by Mr. Justice Lamar, speaking for the court: 'The exemption and non-alienability were two separate * * * subjects. One conferred a right and the other imposed a limitation.' Under the circumstances it was a complete answer to the attempt which was made to make the right depend upon the limitation. And that, too, without the removal of the limitation being availed of by the Indian. As we have seen, to have availed himself of it would have relinquished the right, for by the express provision of the statute it only existed while the title remained in him. The elements are different in the case at bar. Sarah Smith invoked a removal of the limitation, the restriction upon alienation, and could only receive the benefit of the law by accepting the consequences of the law. It would indeed have been anomalous to give her power to erect a town and convey its lots free from taxation. New Jersey v. Wilson, 7 Cranch, 164, 3 L. Ed. 303, is adduced by plaintiffs in error to sustain their contention. That case passed upon a grant of the state of New Jersey to certain Indians, 'with the privilege of exemption from taxation.' It was decided that the privilege, though for the benefit of the Indians, was annexed by the terms which created it to the land itself, not to their persons. And this was an advantage to the Indians, it was said, 'because, in the event of sale, on which alone the question could become material, the value would be enhanced by it.' But it was further said it was not doubted that the state might have insisted on a surrender of the privilege as the sole condition on which a sale of the property should be allowed. Such condition is imposed by the acts of Congress which we have mentioned, when voluntarily invoked by an allottee. And there is no hardship in this. The right or privilege of exemption from taxation cannot be taken from an allottee's land while he retains the title. Its surrender may not be forced from him, but he may yield it in bargain for another right or privilege; and any improvident estimate of the right to be given up or to be received is guarded against by the requirement of the approval by the Commission to the Five Civilized Tribes and the Secretary of the Interior. And it can easily be seen that if exemption from taxation gave value to the land, the power to constitute towns was of greater value. The record shows the value of the lots to plaintiffs in error in the erected town, ranging from $25 to $1,700, a number being valued at $100, others at $200, $300, $400, and $1,500. We may observe that Sarah Smith was authorized to sell for not less than $125 an acre. Judgment affirmed.

243.US.332

The effect of the Act of September 3, 5, 1916, entitled "An Act to establish an eight-hour day for employees of carriers engaged in interstate and foreign commerce, and for other purposes,' c. 436, 39 Stat. 721, is not only to establish permanently an eight-hour standard for work and wages as between the carriers and employees affected, but also to fix a scale of minimum wages, to wit, the rate of wages then existing, for the eight-hour day and proportionately for overtime, to be in force only during the limited period defined by the act. Viewed as an act establishing an eight-hour day as the standard of service by employees, the statute is clearly within the power of Congress under the commerce clause. The power to establish an eight-hour day does not beget the power to fix wages. In an emergnncy arising from a nation-wide dispute over wages between railroad companies and their train operatives, in which a general strike, commercial paralysis and grave loss and suffering overhang the country because the disputants are unable to agree, Congress has power to prescribe a standard of minimum wages, not confiscatory in its effects but obligatory on both parties, to be in force for a reasonable time, in order that the calamity may be averted and that opportunity may be afforded the contending parties to agree upon and substitute a standard of their own. Where a particular subject lies within the commerce power, the extent to which it may be regulated depends on its nature and the appropriateness of means. The business of common carriers by rail is in one aspect a public business, b ecause of the interest of society in its continued operation and rightful conduct; and this public interest gives rise to a public right of regulation to the full extent necessary to secure and protect it. Although emergency may not create power (Ex parte Milligan, 4 Wall. 2), it may afford reason for exerting a power already enjoyed. The act above cited in substance and effect amounts to an exertion of the power of Congress, existing under the circumstances, to arbitrate compulsorily the dispute between the parties-a power susceptible of exercise by direct legislation as well as by enactment of other appropriate means for reaching the same result. Viewed as an act fixing wages, the statute merely illustrates the character of regulation essential, and hence permissible, for the protection of the public right. The act does not invade the private rights of carriers, since all their business and property must be deemed subject to the regulatory power to insure fit relief by appropriate means. The act does not invade private rights of employees, since their rights to demand wages according to their desire and to leave the employment, individually or in concert, if the demand is refused, are not such as they might be if the employment were in private business, but are necessarily subject to limitation by Congress, the employment accepted being in a business charged with a public interest which Congress may regulate under the commerce power. The act is not wanting in equality of protection either because it exempts certain short-line and electric railroads, or because it deals with the wages of those employees only who are engaged in the movement of trains-they being the class concerned in the dispute which threatened interruption of commerce. Whether the provision for penalties is unconstitutional will not be determined in a suit not concerning penalties. The history of the dispute, the inquiries and circumstances which culminated in the legislation, the nature of the provisions made and a comparison of them with the issues which existed between the disputants, refute the claim that the act was passed without consideration and in arbitrary disregard of the rights of the carriers and the

Was there power in Congress, under the circumstances existing, to deal with the hours of work and wages of railroad employees engaged in interstate commerce, is the principal question here to be considered. Its solution, as well as that of other questions which also arise, will be clarified by a brief statement of the conditions out of which the controversy arose. Two systems controlled in March, 1916, concerning wages of railroad employees; one, an eight-hour standard of work and wages with additional pay for overtime, governing on about 15 per cent of the railroads; the other, a stated mileage task of 100 miles to be performed during ten hours, with extra pay for any excess, in force on about 85 per cent of the roads. The organizations representing the employees of the railroads in that month made a formal demand on the employers that, as to all engaged in the movement of trains, except passenger trains, the 100-mile task be fixed for eight hours, provided that it was not so done as to lower wages, and provided that an extra allowance for overtime, calculated by the minute at one and one-half times the rate of the regular hours' service, be established. The demand made this standard obligatory on the railroads, but optional on the employees, as it left the right to the employees to retain their existing system on any particular road if they elected to do so. The terms of the demand were as follows, except the one which reserved the option, which is in the margin,1 and others making article 1 applicable to yard and switching and hostling service. 'Article 1. (a) In all road service 100 miles or less, eight hours or less will constitute a day except in passenger service. Miles in excess of 100 will be paid for at the same rate per mile. '(b) On runs of 100 miles or less overtime will begin at the expiration of eight hours. '(c) On runs of over 100 miles overtime will begin when the time on duty exceeds the miles run divided by 12 1/2 miles per hour. '(d) All overtime to be computed on the minute basis and paid for at time and one-half times the pro rata rate. '(e) No one shall receive less for eight hours or 100 miles than they now receive for a minimum day or 100 miles for the class of engine used or for service performed. '(f) Time will be computed continuously from time required for duty until release from duty and responsibility at end of day or run.' The employers refused the demand, and the employees, through their organizations, by concert of action, took the steps to call a general strike of all railroad employees throughout the whole country. The President of the United States invited a conference between the parties. He proposed arbitration. The employers agreed to it and the employees rejected it. The President then suggested the eight-hour standard of work and wages. The employers rejected this and the employees accepted it. Before the disagreement was resolved the representatives of the employees abruptly called a general strike throughout the whole country, fixed for an early day. The President, stating his efforts to relieve the situation, and pointing out that no resources at law were at his disposal for compulsory arbitration, to save the commercial disaster, the property injury and the personal suffering of all, not to say starvation, which would be brought to many among the vast body of the people if the strike was not prevented, asked Congress, first, that the eight-hour standard of work and wages be fixed by law, and second, that an official body be created to observe during a reasonable time the operation of the legislation, and that an explicit assurance be given that if the result of such observation established such an increased cost to the employers as justified an increased rate, the power would be given to the Interstate Commerce Commission to authorize it. Congress responded by enacting the statute whose validity, as we have said, we are called upon to consider. Act of September 3, 5, 1916, 39 Stat. at L. 721, chap. 436. The duty to do so arises from the fact that the employers, unwilling to accept the act, and challenging the constitutional power of Congress to enact it, began this typical suit against the officers of certain labor unions and the United States District Attorney to enjoin the enforcement of the statute. The law was made to take effect only on the 1st of January, 1917. To expedite the final decision before that date, the representatives of the labor unions were dropped out, agreements essential to hasten were made, and it was stipulated that, pending the final disposition of the cause, the carriers would keep accounts of the wages which would have been earned if the statute was enforced so as to enable their payment if the law was finally upheld. Stating its desire to co-operate with the parties in their purpose to expedite the cause, the court below, briefly announcing that it was of opinion that Congress had no constitutional power to enact the statute, enjoined its enforcement, and, as the result of the direct appeal which followed, we come, after elaborate oral and printed arguments, to dispose of the controversy. All the propositions relied upon and arguments advanced ultimately come to two questions: first, the entire want of constitutional power to deal with the subjects embraced by the statute, and second, such abuse of the power, if possessed, as rendered its exercise unconstitutional. We will consider these subjects under distinct propositions separately. 1. The entire want of constitutional power to deal with the subjects embraced by the statute. To dispose of the contentions under this heading calls at once for a consideration of the statute, and we reproduce its title and text so far as is material. An Act to Establish an Eight-hour Day for Employees of Carriers Engaged in Interstate and Foreign Commerce, and for Other Purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That beginning January first, nineteen hundred and seventeen, eight hours shall, in contracts for labor and service, be deemed a day's work and the measure or standard of a day's work for the purpose of reckoning the compensation for services of all employees who are now or may hereafter be employed by any common carrier by railroad, except railroads independently owned and operated not exceeding one hundred miles in length, electric street railroads, and electric interurban railroads, which is subject to the provisions of the Act of February fourth, eighteen hundred and eighty-seven, entitled 'An Act to Regulate Commerce,' as amended, and who are now or may hereafter be actually engaged in any capacity in the operation of trains used for the transportation of persons or property on railroads, except railroads independently owned and operated not exceeding one hundred miles in length, electric street railroads, and electric interurban railroads, . . . Sec. 2. That the President shall appoint a commission of three, which shall observe the operation and effects of the institution of the eight-hour standard workday as above defined and the facts and conditions affecting the relations between such common carriers and employees during a period of not less than six months nor more than nine months, in the discretion of the commission, and within thirty days thereafter such commission shall report its findings to the President and Congress; . . . Sec. 3. That pending the report of the commission herein provided for and for a period of thirty days thereafter the compensation of railway employees subject to this act for a standard eight hour workday shall not be reduced below the present standard day's wage, and for all necessary time in excess of eight hours such employees shall be paid at a rate not less than the pro rata rate for such standard eight-hour workday. Sec. 4. That any person violating any provision of this act shall be guilty of a misdemeanor and upon conviction shall be fined not less than $100 and not more than $1,000, or imprisoned not to exceed one year, or both. There must be knowledge of the power exerted before determining whether, as exercised, it was constitutional, and we must hence settle a dispute on that question before going further. Only an eight-hour standard for work and wages was provided, is the contention on the one side, and, in substance, only a scale of wages was provided, is the argument on the other. We are of the opinion that both are right and in a sense both wrong in so far as it is assumed that the one excludes the other. The provision of § 1 that 'eight hours shall . . . be deemed a day's work and the measure or standard of a day's work' leaves no doubt about the first proposition. As to the second, this is equally true because of the provision of § 3, forbidding any lowering of wages as a result of applying the eight-hour standard established by § 1 during the limited period prescribed in § 2. Both provisions are equally mandatory. If it be said that the second, the depriving of all power to change the wages during the fixed period, is but ancillary to the first command, the standard of eight hours, that would not make the prohibition as to any change of wages any the less a fixing of wages. It certainly would not change the question of power unless it could be assumed that the legislative power to fix one thing, the standard of hours, could be enforced by exerting the power to do another, fix the wages, although there was no legislative authority to exert the latter power. The doing of one thing which is authorized cannot be made the source of an authority to do another thing which there is no powed to do. If to deprive employer and employee of the right to contract for wages and to provide that a particular rate of wages shall be paid for a specified time is not a fixing of wages, it is difficult to see what would be. However, there is this very broad difference between the two powers exerted. The first, the eight-hour standard, is permanently fixed. The second, the fixing of the wage standard resulting from the prohibition against paying lower wages, is expressly limited to the time specified in § 2. It is, therefore, not permanent but temporary, leaving the employers and employees free as to the subject of wages to govern their relations by their own agreements after the specified time. Coneretely state, therefore, the question is this: Did Congress have power, under the circumstances stated, that is, in dealing with the dispute between the employers and employees as to wages, to provide a permanent eignt-hour standard and to create by legislative action a standard of wages to be operative upon the employers and employees for such reasonable time as it deemed necessary to afford an opportunity for the meeting of the minds of employers and employees on the subject of wages? Or, in other words, did it have the power, in order to prevent the interruption of interstate commerce, to exert its will to supply the absence of a wage scale resulting from the disagreement as to wages between the employers and employees, and to make its will on that subject controlling for the limited period provided for? Coming to the general considerations by which both subjects must be controlled, to simplify the analysis for the purpose of considering the question of inherent power, we put the question as to the eight-hour standard entirely out of view, on the ground that the authority to permanently establish it is so clearly sustained as to render the subject not disputable.2 That common carriers by rail in interstate commerce are within the legislative power of Congress to regulate commerce is not subject to dispute.3 It is equally certain that where a particular subject is within such authority, the extent of regulation depends on the nature and character of the subject and what is appropriate to its regulation.4 The powers possessed by government to deal with a subject are neither inordinately enlarged or greatly dwarfed because the power to regulate interstate commerce applies. This is illustrated by the difference between the much greater power of regulation which may be exerted as to liquor and that which may be exercised as to four, dry-goods, and other commodities. It is shown by the settled doctrine sustaining the right by regulation absolutely to prohibit lottery tickets, and by the obvious consideration that such right to prohibit could not be applied to pig iron, steel rails, or most of the vast body of commodities. What was the extent of the power, therefore, of Congress to regulate, considering the scope of regulation which government had the right to exert with reference to interstate commerce carriers, when it came to exercise its legislative authority to regulate commerce, is the matter to be decided. That the business of common carriers by rail is in a sense a public business because of the interest of society in the continued operation and rightful conduct of such business, and that the public interest begets a public right of regulation to the full extent necessary to secure and protect it, is settled by so many decisions, state and Federal, and is illustrated by such a continuous exertion of state and Federal legislative power, as to leave no room for question on the subject. It is also equally true that as the right to fix by agreement between the carrier and its employees a standard of wages to control their relations is primarily private, the establishment and giving effect to such agreed-on standard is not subject to be controlled or prevented by public authority. But, taking all these propositions as undoubted, if the situation which we have described and with which the act of Congress dealt be taken into view,—that is, the dispute between the employers and employees as to a standard of wages, their failure to agree, the resulting absence of such standard, the entire interruption of interstate commerce which was threatened, and the infinite injury to the public interest which was imminent, it would seem inevitably to result that the power to regulate necessarily obtained and was subject to be applied to the extent necessary to provide a remedy for the situation, which included the power to deal with the dispute, to provide by appropriate action for a standard of wages to fill the want of one caused by the failure to exert the private right on the subject, and to give effect by appropriate legislation to the regulations thus adopted. This must be unless it can be said that the right to so regulate as to save and protect the public interest did not apply to a case where the destruction of the public right was imminent as the result of a dispute between the parties and their consequent failure to establish by private agreement the standard of wages which was essential; in other words, that the existence of the public right and the public power to preserve it was wholly under the control of the private right to establish a standard by agreement. Nor is it an answer to this view to suggest that the situation was one of emergency, and that emergency cannot be made the source of power. Ex parte Milligan, 4 Wall. 2, 18 L. ed. 281. The proposition begs the question, since although an emergency may not call into life a power which has never lived, nevertheless emergency may afford a reason for the exertion of a living power already enjoyed. If acts which, if done, would interrupt, if not destroy, interstate commerce, may be by anticipation legislatively prevented, by the same token the power to regulate may be exercised to guard against the cessation of interstate commerce, threatened by a failure of employers and employees to agree as to the standard of wages, such standard being an essential prerequisite to the uninterrupted flow of interstate commerce. But, passing this, let us come to briefly recapitulate some of the more important of the regulations which have been enacted in the past in order to show how necessarily the exertion of the power to enact them manifests the existence of the legislative authority to ordain the regulation now before us, and how completely the whole system of regulations adopted in the past would be frustrated or rendered unavailing if the power to regulate under the conditions stated, which was exerted by the act before us, was not possessed. That regulation gives the authority to fix for interstate carriage a reasonable rate, subject to the limitation that rights of private property may not be destroyed by establishing them on a confiscatory basis, is settled by long practice and decisions.5 That the power to regulate also extends to many phases of the business of carriage, and embraces the right to control the contract power of the carrier in so far as the public interest requires such limitation, has also been manifested by repeated acts of legislation as to bills of lading, tariffs, and many other things too numerous to mention.6 Equally certain is it that the power has been exercised so as to deal not only with the carrier, but with its servants, and to regulate the relation of such servants not only with their employers, but between themselves.7 Illustrations of the latter are afforded by the Hours of Service Act, the Safety Appliance Act, and the Employers' Liability Act. Clear also is it that an obligation rests upon a carrier to carry on its business, and that conditions of cost or other obstacles afford no excuse and exempt from no responsibility which arises from a failure to do so, and also that government possesses the full regulatory power to compel performance of such duty.8 In the presence of this vast body of acknowledged powers there would seem to be no ground for disputing the power which was exercised in the act which is before us so as to prescribe by law for the absence of a standard of wages, caused by the failure to exercise the private right as a result of the dispute between the parties,—that is, to exert the legislative will for the purpose of settling the dispute, and bind both parties to the duty of acceptance and compliance, to the end that no individual dispute or difference might bring ruin to the vast interests concerned in the movement of interstate commerce, for the express purpose of protecting and preserving which the plenary legislative authority granted to Congress was reposed. This result is further demonstrated, as we have suggested, by considering how completely the purpose intended to be accomplished by the regulations which have been adopted in the past would be rendered unavailing or their enactment inexplicable if the power was not possessed to meet a situation like the one with which the statute dealt. What would be the value of the right to a reasonable rate if all movement in interstate commerce could be stopped as a result of a mere dispute between the parties or their failure to exert a primary private right concerning a matter of interstate commerce? Again, what purpose would be subserved by all the regulations established to secure the enjoyment by the public of an efficient and reasonable service if there was no power in government to prevent all service from being destroyed? Further yet, what benefits would flow to society by recognizing the right, because of the public interest, to regulate the relation of employer and employee and of the employees among themselves, and to give to the latter peculiar and special rights safeguarding their persons, protecting them in case of accident, and giving efficient remedies for that purpose, if there was no power to remedy a situation created by a dispute between employers and employees as to rate of wages, which, if not remedied, would leave the public helpless, the whole people ruined, and all the homes of the land submitted to a danger of the most serious character? And finally, to what derision would it not reduce the proposition that government had power to enforce the duty of operation if that power did not extend to doing that which was essential to prevent operation from being completely stopped by filling the interregnum created by an absence of a conventional standard of wages, because of a dispute on that subject between the employers and employees, by a legislative standard binding on employers and employees for such a time as might be deemed by the legislature reasonably adequate to enable normal conditions to come about as the result of agreements as to wages between the parties? We are of opinion that the reasons stated conclusively establish that, from the point of view of inherent power, the act which is before us was clearly within the legislative power of Congress to adopt, and that, in substance and effect, it amounted to an exertion of its authority under the circumstances disclosed to compulsorily arbitrate the dispute between the parties by establishing as to the subject matter of that dispute a legislative standard of wages operative and binding as a matter of law upon the parties,—a power none the less efficaciously exerted because exercised by direct legislative act instead of by the enactment of other and appropriate means providing for the bringing about of such result. If it be conceded that the power to enact the statute was in effect the exercise of the right to fix wages where, by reason of the dispute, there had been a failure to fix by agreement, it would simply serve to show the nature and character of the regulation essential to protect the public right and safeguard the movement of interstate commerce, not involving any denial of the authority to adopt it. And this leaves only to be generally considered whether the right to exercise such a power under the conditions which existed was limited or restrained by the private rights of the carriers or their employees. (a) As to the carrier.—As engaging in the business of interstate commerce carriage subject the carrier to the lawful power of Congress to regulate irrespective of the source whence the carrier draws its existence, and as also, by engaging in a business charged with a public interest, all the vast property and every right of the carrier become subject to the authority to regulate possessed by Congress to the extent that regulation may be exerted, considering the subject regulated and what is appropriate and relevant thereto, it follows that the very absence of the scale of wages by agreement, and the impediment and destruction of interstate commerce which was threatened, called for the appropriate and relevant remedy,—the creation of a standard by operation of law, binding upon the carrier. (b) As to the employee.—Here again it is obvious that what we have previously said is applicable and decisive, since whatever would be the right of an employee engaged in a private business to demand such wages as he desires, to leave the employment if he does not get them, and, by concert of action, to agree with others to leave upon the same condition, such rights are necessarily subject to limitation when employment is accepted in a business charged with a public interest and as to which the power to regulate commerce possessed by Congress applied, and the resulting right to fix, in case of disagreement and dispute, a standard of wages, as we have seen, necessarily obtained. In other words, considering comprehensively the situation of the employer and the employee in the light of the obligations arising from the public interest and of the work in which they are engaged, and the degree of regulation which may be lawfully exerted by Congress as to that business, it must follow that the exercise of the lawful governmental right is controlling. This results from the considerations which we have previously pointed out and which we repeat, since, conceding that, from the point of view of the private right and private interest, as contradistinguished from the public interest, the power exists between the parties, the employers and employees, to agree as to a standard of wages free from legislative interference, that right in no way affects the lawmaking power to protect the public right and create a standard of wages resulting from a dispute as to wages and a failure therefore to establish by consent a standard. The capacity to exercise the private right free from legislative interference affords no ground for saying that legislative power does not exist to protect the public interest from the injury resulting from a failure to exercise the private right. In saying this, of course, it is always to be borne in mind that, as to both carrier and employee, the beneficent and ever-present safeguards of the Constitution are applicable, and therefore both are protected against confiscation and against every act of arbitrary power which, if given effect to, would amount to a denial of due process, or would be repugnant to any other constitutional right. And this emphasizes that there is no question here of purely private right, since the law is concerned only with those who are engaged in a business charged with a public interest, where the subject dealt with as to all the parties is one involved in that business, and which we have seen comes under the control of the right to regulate to the extent that the power to do so is appropriate or relevant to the business regulated. Having thus adversely disposed of the contentions as to the inherent want of power, we come to consider all the other propositions which group themselves under a common heading; that is: II. Such an abuse of the power, if possessed, as rendered its exercise unconstitutional. We shall consider the various contentions which come under this heading under separate subdivisions. (a) Equal protection of the laws and penalties. The want of equality is based upon two considerations. The one is the exemption of certain short line and electric railroads. We dismiss it because it has been adversely disposed of by many previous decisions.9 The second rests upon the charge that unlawful inequality results because the statute deals not with all, but only with the wages of employees engaged in the movement of trains. But such employees were those concerning whom the dispute as to wages existed, growing out of which the threat of interruption of interstate commerce arose,—a consideration which establishes an adequate basis for the statutory classification. As to the penalties, it suffices to say that in this case a recovery of penalties is not asked, and consequently the subject may well be postponed until it actually arises for decision.10 (b) Want of due process resulting from the improvidence with which the statute was enacted and the impossibility in practice of giving effect to its provisions; in other words, as stated in the argument, its 'unworkability.' The contention virtually is that, conceding the legislative power under the circumstances stated to fix a standard of wages, such authority necessarily contemplates consideration sideration before action, and not a total and obvious disregard of every right of the employer and his property,—a want of consideration and a disregard which, it is urged, appear on the face of the statute, and which cause it therefore to amount to a decision without a hearing, and to a mere arbitrary bestowal of millions by way of wages upon employees, to the injury not only of the employer, but of the public, upon whom the burden must necessarily fall. Upon the assumption that unconstitutionality would result if there be ground for the propositions,11 let us test them. In the first place, as we have seen, there is no room for question that it was the dispute between the parties, their failure to agree as to wages, and the threatened disruption of interstate commerce, caused by that dispute, which was the subject which called for the exertion of the power to regulate commerce, and which was dealt with by the exertion of that power which followed. In the second place, all the contentions as to want of consideration sustaining the action taken are disposed of by the history we have given of the events out of which the controversy grew, the public nature of the dispute, the interposition of the President, the call by him upon Congress for action, in conjunction with the action taken, all demonstrating not unwitting action or a failure to consider, whatever may be the room, if any, for a divergence of opinion as to the want of wisdom shown by the action taken. But to bring the subject to a closer analysis, let us briefly recall the situation, the conditions dealt with, and the terms of the statute. What was the demand made by the employees? A permanent agreement as to wages by which the period should be shortened in which the fixed mileage task previously existing should be performed, and an allowance to be made of extra pay by the minute at one and one-half times the regular pay for any overtime required to perform the task if it was not done in the reduced time, with a condition that no reduction in wages should occur from putting the demands into effect, and also that, in that event, their operation should be binding upon the employers and optional on the employees. What was the real dispute? The employers insisted that this largely increased the pay, because the allotted task would not be performed in the new and shorter time, and a large increase for overtime would result. The employees, on the other hand, insisted that, as the task would be unchanged and would be performed in the shorter hours, there would be no material, or, at all events, no inordinate, increase of pay. What did the statute do in settling these differences? It permanently applied an eight-hour standard for work and wages which existed and had been in practice on about 15 per cent of the railroads. It did not fix the amount of the task to be done during those hours, thus leaving that to the will of the parties. It yielded in part to the objections of the employers by permitting overtime only if 'necessary,' and it also absolutely rejected, in favor of the employers and against the employees, the demand for an increased rate of pay during overtime, if there was any, and confined it to the regular rate, and it moreover rejected the option in favor of the employees by making the law obligatory upon both parties. In addition, by the provision prohibiting a lower rate of wages under the new system than was previously paid, it fixed the wages for such period. But this was not a permanent fixing, but, in the nature of things, a temporary one which left the will of the employers and employees to control at the end of the period, if their dispute had then ceased. Considering the extreme contentions relied upon in the light of this situation, we can discover no basis upon which they may rest. It certainly is not afforded because of the establishment of the eight-hour standard, since that standard was existing, as we have said, on about 15 per cent of the railroads, had already been established by act of Congress as a basis for work on government contracts, and had been upheld by this court in sustaining state legislation.12 It certainly cannot be said that the act took away from the parties, employers and employees, their private right to contract on the subject of a scale of wages, since the power which the act exerted was only exercised because of the failure of the parties to agree, and the resulting necessity for the lawmaking will to supply the standard rendered necessary by such failure of the parties to exercise their private right. Further, in view of the provisions of the act narrowing and limiting the demands made, the statute certainly affords no ground for the proposition that it arbitrarily considered only one side of the dispute, to the absolute and total disregard of the rights of the other, since it is impossible to state the modifications which the statute made of the demands without, by the very words of the statement, manifesting that there was an exertion of legislative discretion and judgment in acting upon the dispute between the parties. How can this demonstration fail to result if it be stated that the scope of the task to be performed in the eight-hour period was not expressed, but was left, therefore, to adjustment between the parties; that overtime was only permitted if 'necessary;' and that extra pay for overtime was rejected and regular rate of pay substituted? Conceding that there would necessarily result from the enforcement of the statute an increase of pay during the period for which the statute forbade a reduction, such concession would not bring the statute within the grounds stated. The right to meet the situation caused by the dispute and to fix a standard which should be binding upon both parties included, of course, the legislative authority to take into consideration the elements of difference, and, in giving heed to them all, to express such legislative judgment as was deemed best under the circumstances. From this it also follows that there is no foundation for the proposition that arbitrary action in total disregard of the private rights concerned was taken, because the right to change or lower the wages was left to be provided for by agreement between the parties after a reasonable period which the statute fixed. This must be unless it can be said that to afford an opportunity for the exertion of the private right of agreement as to the standard of wages was in conflict with such right. When it is considered that no contention is made that, in any view, the enforcement of the act would result in confiscation, the misconception upon which all the propositions proceed becomes apparent. Indeed, in seeking to test the arguments by which the propositions are sought to be supported we are of opinion that it is evident that in substance they assert not that no legislative judgment was exercised, but that, in enacting the statute, there was an unwise exertion of legislative power, begotten either from some misconception or some mistaken economic view, or partiality for the rights of one disputant over the other, or some unstated motive which should not have been permitted to influence action. But to state such considerations is to state also the entire want of judicial power to consider them,—a view which therefore has excluded them absolutely from our mind, and which impels us as a duty to say that we have not in the slightest degree passed upon them. While it is a truism to say that the duty to enforce the Constitution is paramount and abiding, it is also true that the very highest of judicial duties is to give effect to the legislative will, and in doing so to scrupulously abstain from permitting subjects which are exclusively within in the field of legislative discretion to influence our opinion or to control judgment. Finally, we say that the contention that the act was void and could not be made operative because of the unworkability of its provisions is without merit, since we see no reason to doubt that if the standard fixed by the act were made applicable and a candid effort followed to carry it out, the result would be without difficulty accomplished. It is true that it might follow that in some cases, because of particular terms of employment or exceptional surroundings, some change might be necessary, but these exceptions afford no ground for holding the act void because its provisions are not susceptible in practice of being carried out. Being of the opinion that Congress had the power to adopt the act in question, whether it be viewed as a direct fixing of wages to meet the absence of a standard on that subject, resulting from the dispute between the parties, or as the exertion by Congress of the power which it undoubtedly possessed to provide by appropriate legislation for compulsory arbitration,—a power which inevitably resulted from its authority to protect interstate commerce in dealing with a situation like that which was before it,—we conclude that the court below erred in holding the statute was not within the power of Congress to enact, and in restraining its enforcement, and its decree, therefore, must be and it is reversed and the cause remanded, with directions to dismiss the bill. And it is so ordered. It is the contention of the government that the act is an hours-of-service law, the intent of Congress being by its enactment 'to proclaim a substantial eight-hour day.' The opposing contention is that 'the language of the act shows that it deals solely with the construction of contracts and with the standard and amount of compensation, and not with any limitation upon the hours of labor.' Upon these opposing contentions the parties respectively assert and deny the power of Congress to enact the law. The government, however, further contends that, even viewing the law as a wage law, Congress, under the commerce clause, had power to pass it. My purpose is to deal with the meaning of the act. With the consideration of the power to pass it, I am satisfied with the opinion. The title of the act (and to the title of an act we may resort to resolve ambiguity or to confirm its words) expresses its purpose to be 'to establish an eight-hour day for employees of carriers engaged in interstate and foreign commerce, and for other purposes.' The description of the title was repeated in the House of Representatives by the chairman of the committee who reported the bill and from whom it has received its designation. Among other things, he said: 'The law fixes an eight-hour day. We had previously a sixteen-hour day and a nine-hour day. We now have an eight-hour day. The only reference to wages is in the language used to hold in statu quo until the workings of the eight-hour law could be observed and all other features of the service adjusted to the eight-hour law.' Explanations of like import were made in the Senate. The words of the act, I think, support this characterization, and, it may be assumed, were accepted by Congress as expressing and securing it; and I think they do so with fair directness. Whatever involution there may be in them was caused by the situation to which they were addressed, derangement of which was sought to be avoided; the situation indeed made use of 'features of the service adjusted' to the law. The provision of § 1 is: 'That, beginning January first, nineteen hundred and seventeen, eight hours shall, in contracts for labor and service, be deemed a day's work and the measure or standard of a day's work for the purpose of reckoning the compensation for services of all employees who are now or may hereafter be employed by any common carrier by railroad, except . . .' Nothing is fixed but the time of service,—the hours which shall be deemed a day's work,—the number to be eight. All else compensation and conditions—is left to contract; only, whatever the compensation, it shall be for a service of eight hours reckoned (computed) or measured by such time as its determining factor. Except as so determined the compensation may be whatever the carriers and employees may agree upon. Their power of convention has no other limitation. The distinction between what is left to the parties and what is fixed by the law is real. There is certainly a difference between the prescription of the time of service and the prescription of compensation for the service, and the difference is observed in the speech and conduct of men; it is observed in the regulations of legislation. It has never been supposed that the agitation for an eight-hour day for labor, or the legislation which has responded to it, was intended to fix or did fix the rate of wages to be paid. Of course, in a sense, the two things are related. The time of service and the price of service may be said to be the reciprocals of each other,—each the price of the other. There can be no real estimate of the wages one receives until it is understood what time one has worked to receive them. They rise and fall with the increase or decrease of the time of service. One who works ten hours a day for $5 may be said to get less than one who works eight hours for the same sum. The labor of the latter is of greater value to him than the labor of the ten-hour man is to him. And, correspondingly, the expense to the employer is greater in the one case than in the other, though the wages he pays, expressed in terms of money, are the same. It may be contended that there is no element, therefore, in the regulation of the price of labor that there is not in the regulation of the hours of labor. But, as I have said, in the practice of men and in the examples of legislation, regulation of one is not regarded as the regulation of the other. In certain hazardous employments the hours of labor have been prescribed. It has not been supposed, certainly not declared, that the power as exerted was the regulation of wages. The interest of the state has been assumed to terminate with the hours of service, and its compensation, therefore, has been left to the agreement of the parties. As examples of legislation I may adduce Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383, where a state law was sustained, and Baltimore & O. R. Co. v. Interstate Commerce Commision, 221 U. S. 612, 55 L. ed. 878, 31 Sup. Ct. Rep. 621, where a law of Congress was sustained. Both laws limited the hours of service, but neither the rate of wages. There may be also cited Ellis v. United States, 206 U. S. 246, 51 L. ed. 1047, 27 Sup. Ct. Rep. 600, 11 Ann. Cas. 589; Muller v. Oregon, 208 U. S. 412, 52 L. ed. 551, 28 Sup. Ct. Rep. 324, 13 Ann. Cas. 957; Bosley v. McLaughlin, 236 U. S. 385, 59 L. ed. 632, 35 Sup. Ct. Rep. 345; Miller v. Wilson, 236 U. S. 373, 59 L. ed. 628, L.R.A.1915F, 829, 35 Sup. Ct. Rep. 342. It may be contended that the power that can limit the hours of service can fix the wages for the service. To this I shall presently refer. My immediate purpose is the interpretation of the law under review, and I have only to point out that it is the sense of the practical world that prescribing the hours of labor is not prescribing the wages of labor, and Congress has kept the purposes distinct. I do not think that other provisions of the act militate against these views. Section 2 provides for the appointment of a commission to observe the operation of the law, and this for the reason I have expressed of the dependence of the cost of the services upon the time they are rendered. The shorter hours may or may not involve an increase of expense to the roads, and may or may not require recompense by an increase of their rates. Pending the report of the commission, and for thirty days thereafter, it is provided (§ 3) that compensation shall not be reduced below the present standard day's wage, and for all necessary time in excess of eight hours employees shall be paid at a rate not less than the pro rata rate for such standard eight-hour workday. In a sense, this may be considered as a prescription of wages. To those roads (85 per cent) that have a ten-hour standard the provision, so far as applicable, may be said to be a change of compensation. To those (15 per cent) having an eight-hour standard it is not a change. The effort of the law is to secure an eight-hour day service and the 'penalty of payment for overtime service,' to quote the government's brief, 'is imposed in order to enforce obedience to the eight-hour provision, as far as practicable.' But even if § 3 be given a broader effect, it would not give character to the whole act and make it the exertion of power to establish permanently a rate of wages. To so consider it would, I think, be contrary to the intention of Congress, and convert the expediency for a particular occasion and condition into the rule for all occasions and conditions. So far as the fate of the pending appeal is concerned, it is not of much importance whether the act be held to be an hours-of-service law or a wage-regulating law; but one may be regarded as having consequences that the other has not. To a carrier a wage law is but an item in its accounts, and requiring, it may be, an adjustment of its operations, the expense to be recompensed through its rates. If it be said that rates cannot be changed at will, but only by permission of authority, I cannot think that permission will not be given if it be necessary to fulfil the command of the law. Indeed, if not given, the law might encounter constitutional restriction. To an employee a wage law may be of more vital consequence, be of the very essence of his life,—involving factors, many and various, which he alone can know and estimate, and which, besides, might not have an enduring constancy and be submissive to a precedent judgment. There well might be hesitation to displace him and substitute the determination of the law for his action. I speak only of intention; of the power I have no doubt. When one enters into interstate commerce, one enters into a service in which the public has an interest, and subjects one's self to its behesta. And this is no limitation of liberty; it is the consequence subjects one's self to its behests. And this his undertaking, and constrains no more than any contract constrains. The obligation of a contract is the law under which it is made, and submission to regulation is the condition which attaches to one who enters into or accepts employment in a business in which the public has an interest. I concur in the answer of the opinion to the contentions of inequality of the law and the deprivation to the carriers of due process. I am unable to agree with the opinion and judgment just pronounced. The very serious constitutional questions involved seem to warrant a statement of the reasons which constrain me to this action. I am not prepared to deny to Congress, in view of its constitutional authority to regulate commerce among the states, the right to fix by lawful enactment the wages to be paid to those engaged in such commerce in the operation of trains carrying passengers and freight. While the railroads of the country are privately owned, they are engaged in a public service, and because of that fact are subject in a large measure to governmental control. The regulatory power of Congress under the commerce clause of the Constitution is of a broad nature, but is subject to the applicable limitations of the Constitution. I agree that upon the reasoning which sustained the power of Congress to regulate the hours of service of employees, and the degree of care which employers must observe to protect the safety of those engaged in the service, and in view of the enactments which are held to be lawful regulations of interstate transportation, Congress has the power to fix the amount of compensation necessary to secure a proper service and to insure reasonable rates to the public upon the part of the railroads engaged in such traffic. While this much must necessarily follow from the constitutional authority of Congress, in the light of the interpretation given to the commerce clause in decisions of this court, it is equally true that this regulatory power is subject to any applicable constitutional limitations. This power cannot, any more than others conferred by the Constitution, be the subject of lawful exercise when such exertion of authority violates fundamental rights secured by the Constitution. Gibbons v. Ogden, 9 Wheat. 1, 196, 6 L. ed. 23, 70; Monongahela Nav. Co. v. United States, 148 U. S. 312, 336, 37 L. ed. 463, 471, 13 Sup. Ct. Rep. 622; United States v. Joint Traffic Asso. 171 U. S. 505, 571, 43 L. ed. 259, 288, 19 Sup. Ct. Rep. 25; Lottery Case (Champion v. Ames) 188 U. S. 321, 353, 47 L. ed. 492, 500, 23 Sup. Ct. Rep. 321, 13 Am. Crim. Rep. 561. The power to legislate, as well as other powers conferred by the Constitution upon the co-ordinate branches of the government, is limited by the provisions of the 5th Amendment of the Constitution preventing deprivation of life, liberty, or property without due process of law. The phrase 'due process of law' has been the subject of much discussion, and while its precise definition has not been attempted, and its limitations have been left to the gradual process of inclusion and exclusion, the binding force of its requirements is always conceded, and has been frequently enforced in cases as they have arisen. If the Constitution is not to become a dead letter the protection of the due process clause must be given to all entitled to this safeguard of rights which the Amendment intended to secure. The due process clause restrains alike every branch of the government, and is binding upon all who exercise Federal power, whether of an executive, legislative, or judicial character. It withholds from the executive the exercise of arbitrary authority, it prevents the judiciary from condemning one in his person or property without orderly methods of procedure adapted to the situation, and opportunity to be heard before judgment. We are now immediately concerned with its effect upon the exercise of legislative authority. While every case must depend upon its peculiar circumstances, certain general principles are well settled; perhaps they have not been better stated than in the words of Mr. Justice Matthews, speaking for this court in Hurtado v. California, 110 U. S. 516, 531, 28 L. ed. 232, 237, 4 Sup. Ct. Rep. 111, 292, wherein he said: 'The concessions of Magna Charta were wrung from the King as guaranties against the oppressions and usurpations of his prerogative. It did not enter into the minds of the barons to provide security against their own body or in favor of the Commons by limiting the power of Parliament; so that bills of attainder, ex post facto laws, laws declaring forfeitures of estates, and other arbitrary acts of legislation, which occur so frequently in English history, were never regarded as inconsistent with the law of the land. . . . The actual and practical security for English liberty against legislative tyranny was the power of a free public opinion represented by the Commons. In this country written constitutions were deemed essential to protect the rights and liberties of the people against the encroachment of power delegated to their governments, and the provisions of Magna Charta were incorporated into Bills of Rights. They were limitations upon all the powers of government, legislative as well as executive and judicial. . . . Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legislation.' See Den ex dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 15 L. ed. 372; Bank of Columbia v. Okely, 4 Wheat. 235, 4 L. ed 559; 2 Story, Const. 4th ed. § 1944; Cooley, Const. 241 et seq.; McGehee, Due Process of Law, pp. 22 et seq., and the illuminating discussion of the subject by Mr. Justice Moody in Twining v. New Jersey, 211 U. S. 78, 53 L. ed. 97, 29 Sup. Ct. Rep. 14. It results from the principles which have been enforced in this court, and recognized by writers of authority, that due process of law, when applied to the legislative branch of the government, will not permit Congress to make anything due process of law which it sees fit to declare such by the mere enactment of the statute; if this were true, life, liberty, or property might be taken by the terms of the legislative act, depending for its authority upon the will or caprice of the legislature, and constitutional provisions would thus become a mere nullity. See the frequently quoted argument of Mr. Webster in the Dartmouth College Case, 4 Wheat. 518, 4 L. ed. 629; Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581; McGehee, Due Process of Law, p. 30. The underlying principle of the decisions which have constrained this court in rare instances to exercise its constitutional right to declare congressional enactments void is the protection intended to be afforded against legislation of an arbitrary character. While it is true, as stated in the majority opinion, that it is the duty of courts to enforce lawful legislative enactments of Congress, it is equally their duty and sworn obligation when differences between acts of the legislature and the guaranties of the Federal Constitution arise, to govern their decisions by the provisions of that instrument which represents the will of all the people, and under the authority of which every branch of the government is enabled to discharge the duty imposed upon it. The act in question must be brought to the test of these fundamental principles, and, if found to be violative of the Federal Constitution, it must be declared void. Grave and important as the duty is, it cannot be avoided consistently with the obligations imposed by the Constitution upon every branch of the judiciary, Federal and state, and particularly upon this court, to which, under our system, is intrusted the ultimate decision of questions of this nature. Applying these principles, in my opinion this act cannot successfully withstand the attack that is made upon it as an arbitrary and unlawful exertion of supposed legislative power. It is not an act limiting the hours of service. Nor is it, in my judgment, a legitimate enactment fixing the wages of employees engaged in such service. In one of its most important aspects, and in view of the mandatory provisions of § 3 of the act, it is one the effect of which is to increase the wages of certain employees in interstate commerce by the requirement that, pending investigation, the wages which have theretofore been paid for ten hours' service shall be given for eight hours' service of the same character. The increase of wages is to be in force only during the period of observation provided in the act. Before the passage of this enactment the wages of the character involved herein had been fixed by agreement, or determined by arbitration between the parties concerned. By this enactment the wage theretofore paid for a ten-hours service is required to be paid for an eight-hours service pending the investigation provided for in other parts of the law. In other words, Congress, upon the face of the enactment, expresses its inability to fix, in advance of investigation, a just and proper wage for the employees concerned. It inevitably follows that the cost of the experiment, measured by the increase in wages, amounting, it is stated, to many millions of dollars, and certain to cost a very large sum, must be paid, not by the public, nor be equally borne by the contracting parties, but, by legislative edict, is made to fall entirely upon one of the parties, with no provision for compensation should the subsequent investigation establish the injustice or impropriety of the temporary increase. An examination of the history of the legislation, and public documents submitted for our consideration, amply support this conclusion. In submitting the matter to Congress, the President recommended: 'Explicit approval by the Congress of the consideration by the Interstate Commerce Commission of an increase of freight rates to meet such additional expenditures by the railroads as may have been rendered necessary by the adoption of the eight-hour day, and which have not been offset by administrative readjustments and economies, should the facts disclosed justify the increase.' This recommendation was not followed in the enactment of the statute. The Senate Committee having the subject under consideration expressed a desire for investigation and consideration before enacting a law of this character. Such was not had, and the law in its present form was speedily passed. In fixing wages, conceding the power of Congress for this purpose, that body acts having in mind the rights of the public, of the owners of railroads, and of the employees engaged in their service. Inherently, such legislation requires that investigation and deliberation shall precede action. In fixing rates Congress has itself recognized this principle and has delegated its power to a Commission which acts only upon full investigation and an opportunity to be heard, wherein the interest of the public, the carrier, and the shipper may be given ample consideration. Conceding that every presumption exists in favor of the legitimate exercise of legislative power, and that there is no authority in the courts to inquire into the motives which may have influenced legislators, and that every such enactment presupposes the possession of proper motives and sufficient information and knowledge to warrant the action taken, nevertheless Congress has in this act itself declared the lack of the requisite information for definite action, and has directed an experiment to determine what it should do, imposing in the meantime an increase of wages peremptorily declared, the expense of which is to be borne entirely by the carrier, without recompense if the investigation proves the injustice or impropriety of the increase. Such legislation, it seems to me, amounts to the taking of the property of one and giving it to another, in violation of the spirit of fair play and equal right which the Constitution intended to secure in the due process clause to all coming within its protection, and is a striking illustration of that method which has always been deemed to be the plainest illustration of arbitrary action,—the taking of the property of A and giving it to B by legislative fiat. Davidson v. New Orleans, 96 U. S. 97, 104, 24 L. ed. 616, 619. It may be taken to be true, as stated in the majority opinion, that, but for this legislation, a strike of employees engaged in interstate commerce would have been precipitated, disastrous in its consequences to the commerce of the country. If I am right in the conclusion that this legislation amounted to a deprivation of property without due process of law, no emergency and no consequence, whatever their character, could justify the violation of constitutional rights. The argument of justification by emergency was made and answered in this court in Ex parte Milligan, 4 Wall. 2, 18 L. ed. 281, decided more than fifty years ago, in which it was held that not even the perils of war could impair the right of a resident of a loyal state, not connected with the military service, and where the courts were open, and in the proper exercise of their jurisdiction, to be tried, convicted, or sentened only by the ordinary courts of law, with trial by jury and with the safeguards intended to secure a fair trial in the courts of law. Speaking of the purposes which controlled in the adoption of the Federal Constitution, and animated those who framed that instrument, this court said, page 120: 'Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.' This principle is equally applicable today. Constitutional protectionis more essential Constitutional protection is more essential it can be in the security of less turbulent periods. The Constitution intended to protect the citizen against encroachments upon his rights impelled by existing emergencies, or supposed necessity of prompt and vigorous action. Constitutional rights, if they are to be available in time of greatest need, cannot give way to an emergency, however immediate, or justify the sacrifice of private rights secured by the Constitution. I agree that a situation, such as was presented to Congress at this time, properly called for the exertion of its proper authority to avert impending calamity. I cannot agree that constitutional rights may be sacrificed because of public necessity, nor taken away because of emergencies which might result in disaster or inconvenience to public or private interests. If this be not so, the constitutional limitations for the protection of life, liberty, and property are of little value, and may be taken away whenever it is supposed that the public interest will be promoted by the sacrifice of rights which the framers of the Constitution intended should be forever protected from governmental invasion by any branch of the government. There are certain matters in the opinion of the majority which I am unable to approve by silent acquiescence. I am not prepared to admit that Congress may, when deemed necessary for the public interest, coerce employees, against their will, to continue in service in interstate commerce. Nor do I think it necessary to decide, as declared in the majority opinion, that in matters of this kind Congress can enact a compulsory arbitration law. These questions are not involved in this case, and their decision need not be anticipated until they actually arise. The reasons which I have outlined impel me to the conclusion that the enactment under consideration necessarily deprives the complaining railroad companies of rights secured to them, as well as to others, by one of the most essential of the protections guaranteed by the Federal Constitution. In this view I am constrained to dissent from the opinion and judgment in this cases. I am constrained to dissent from the decision just announced and from the reasoning upon which it is based. I am convinced that the statute under consideration (Act of September 3, 5, 1916, chap. 436, 39 Stat. at L. 721) is not within the constitutional power of Congress. The infirmity that I find in it is so fundamental that, for the sake of brevity, I lay aside all minor grounds upon which it is attacked, and hence may begin by setting forth the title and essential provisions of the act, so as to render plain its true effect and operation, omitting portions not necessary to a consideration of the main questions. I quote as follows: An Act to Establish an Eight-hour Day for Employees of Carriers Engaged in Interstate and Foreign Commerce, and for Other Purposes. Be it enacted . . . That beginning January first, nineteen hundred and seventeen, eight hours shall, in contracts for labor and service, be deemed a day's work and the measure or standard of a day's work for the purpose of reckoning the compensation for services of all employees who are now or may hereafter be employed by any common carrier by railroad, . . . which is subject to the provisions of the Act of February fourth, eighteen hundred and eighty-seven, entitled 'An Act to Regulate Commerce' [24 Stat. at L. 379, chap. 104, Comp. Stat. 1913, § 8563], as amended, and who are now or may hereafter be actually engaged in any capacity in the operation of trains used for the transportation of persons or property on railroads, . . . from any state or territory of the United States or the District of Columbia to any other state or territory of the United States or the District of Columbia, etc. Sec. 2. That the President shall appoint a commission of three, which shall observe the operation and effects of the institution of the eight-hour standard workday as above defined and the facts and conditions affecting the relations between such common carriers and employees during a period of not less than six months nor more than nine months, in the discretion of the commission, and within thirty days thereafter such commission shall report its findings to the President and Congress; . . . Sec. 3. That pending the report of the commission herein provided for and for a period of thirty days thereafter the compensation of railway employees subject to this act for a standard eight-hour workday shall not be reduced below the present standard day's wage, and for all necessary time in excess of eight hours such employees shall be paid at a rate not less than the pro rata rate for such standard eight-hour workday. Sec. 4. That any person violating any provision of this act shall be guilty of a misdemeanor, etc. It is, I think, too plain for argument that the act departs from its title, in that it does not establish eight hours as the limit of a day's work. There is no prohibition of service in excess of eight hours per day, nor any penalty for overtime work, for this is to be paid for only pro rata. There is no language evincing an intent to repeal or modify the Sixteen Hour Act of March 4, 1907, chap. 2939, 34 Stat. at L. 1415, Comp. Stat. 1913, § 8677. It is a matter of common knowledge that railroad train service must be arranged according to the distances between terminals or 'division points,' and a change from a sixteen-hour limit to an eight-hour limit would be so revolutionary that a purpose to make such a change is not to be lightly inferred. This act affords no basis for such an inference. What it prescribes is that 'eight hours shall, in contracts for labor and service, be deemed a day's work and the measure or standard of a day's work for the purpose of reckoning the compensation for services.' It defines the terms of contracts for service and prescribes a measure only for the purpose of reckoning compensation. This is the whole effect of the 1st section. To shorten the discussion, I will concede, arguendo, that this section of itself is not in conflict with the Constitution. This being assumed, the 2d section evidently is unexceptionable. Serious difficulty appears, however, when we come to consider the operation and effect of the 3d section in connection with the 1st and 2d. It provides that, pending the report of the commission, and for thirty days thereafter, 'the compensation of railway employees subject to this act for a standard eight-hour workday shall not be reduced below the present standard day's wage,' etc. This, of course, is to be practically enforced by means of prosecutions under § 4. The 'present standard day's wage' in effect upon the railroad represented by appellees in this case and upon most of the other railroads of the country is a term not easily defined. Accepting the paraphrase employed in the brief for the United States, the standard may be expressed as follows: 'One hundred miles or less, ten hours or less, shall constitute a day.' The effect of § 3 is that during a period of from seven to eleven months the carriers shall pay as much for eight hours' work as previously was paid for ten hours' work; the excess over eight hours to be paid pro rata on the eight-hour basis. The effect is to increase wages in a large but undefined amount upon the railroad represented in this suit, and in the amount of many millions of dollars, considering all the railroads that are effected. The legislation is attempted to be sustained solely as an exercise of the power of Congress to regulate interstate and foreign commerce. Evidently it can find no other support, for Congress has no authority over the Missouri, Oklahoma, & Gulf Railway Company, whose receivers are appellees here, or over the other companies affected by this law, except by reason of its power to regulate commerce; and it possesses this authority only because those corporations voluntarily have chosen to engage in commerce among the states. A contention that Congress has power to compel the railroads and their employees to continue to carry on such commerce at all costs will be dealt with hereafter. If, therefore, the act be not, in a real and substantial sense, a regulation of commerce, it is in excess of the constitutional power of Congress. 'Manifestly, any rule prescribed for the conduct of interstate commerce, in order to be within the competency of Congress under its power to regulate commerce among the states, must have some real or substantial relation to or connection with the commerce regulated.' Adair v. United States, 208 U. S. 161, 178, 52 L. ed. 436, 444, 28 Sup. Ct. Rep. 277, 12 Ann. Cas. 764. And, though it be a regulation of commerce, it is void if it conflicts with the provisions of the 5th Amendment, that no person shall be 'deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.' Monongahela Nav. Co. v. United States, 148 U. S. 312, 336, 37 L. ed. 463, 471, 13 Sup. Ct. Rep. 622; United States v. Lynah, 188 U. S. 445, 471, 47 L. ed. 539, 549, 23 Sup. Ct. Rep. 349; Adair v. United States, 208 U. S. 161, 180, 52 L. ed. 436, 445, 28 Sup. Ct. Rep. 277, 13 Ann. Cas. 764; United States v. Cress, decided March 12, 1917 [243 U. S. 316, 61 L. ed. 746, 37 Sup. Ct. Rep. 380]. I am convinced, in the first place, that the act cannot be sustained as a regulation of commerce, because it has no such object, operation, or effect. It removes no impediment or obstruction from the way of traffic or intercourse, prescribes no service to the public, lays down no rule respecting the mode in which service is to be performed, or the safeguards to be placed about it, or the qualifications or conduct of those who are to perform it. In short, it has no substantial relation to or connection with commerce,—no closer relation than has the price which the carrier pays for its engines and cars or for the coal used in propelling them. The suggestion that it was passed to prevent a threatened strike, and in this sense to remove an obstruction from the path of commerce, while true in fact, is immaterial in law. It amounts to no more than saying that it was enacted to take care of an emergency. But an emergency can neither create a power nor excuse a defiance of the limitations upon the powers of the government. Ex parte Milligan, 4 Wall. 2, 121, 18 L. ed. 281, 295. The simple effect of § 3 is to increase, during the period of its operation, the rate of wages of railroad trainmen employed in interstate commerce. It comes to this,—that whereas the owners of the railroads have devoted their property to the movement of interstate as well as intrastate commerce, and whereas the trainmen have accepted employment in such commerce, and thus employers and employees are engaged together in a quasi public service, the act steps in and prescribes how the money earned in the public service shall be divided between the owners of the railroads and these particular employees. This, in my view, is a regulation not of commerce, but of the internal affairs of the commerce carriers,—precisely as if an act were to provide that the rate of interest payable to the bondholders must be increased and the dividend payments to the stockholders correspondingly decreased,—and is not only without support in the commerce clause of the Constitution, but, as I shall endeavor to show, transgresses the limitations of the 5th Amendment. The oft-quoted declaration of Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1, 196, 6 L. ed. 23, 70, that the power to regulate commerce among the states, like all others vested in Congress, 'is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution,' means that the exercise of the power is not dependent on, and is not to be hampered by, the action of the states, and is unrestrained by any qualification other than such as are contained in the fundamental law. To say that the power 'acknowledges no limitations' is not to say that it is limitless in extent, for it is confined by the very definition of the subject matter. The power is vast, but is not vague, and error inevitably must result from treating it as nebulous. The act stands wholly without precedent in either state or national legislation. Let it be admitted that mere novelty is not a ground of constitutional objection, since it is the appropriate function of a legislature to change the law. This act, however, differs not only in degree, but in kind, from any and all that have preceded it. It is now nearly thirty years since Congress entered the field of direct regulation of interstate railway carriers. Before that the entire field was open to the states, and since the year 1887 the regulation of their internal commerce has still remained open to them. This has been a period of intense and widespread activity and progress in commerce regulation, and, as it happens, of equal progress respecting legislation in the interest of workingmen. The fact that no law fixing the rate of compensation for reilroad employees ever was proposed until this act was brought forward a very few days before its passage, and then only under the coercive influence of a threatened public calamity, is the strongest evidence that, in the judgment of executives and legislators, state and national, measures of this sort were not within the bounds of permissible regulation of commerce. As already stated, the act has not the effect of imposing any limit to the number of hours that a trainman may work in a day, nor any penalty for overtime work. Therefore, it cannot be sustained upon the ground on which the court sustained the Act of March 4, 1907 (34 Stat. at L. 1415, chap. 2939, Comp. Stat. 1913, § 8677), limiting the hours of service of employees engaged in interstate commerce,—a ground epitomized in Baltimore & O. R. Co. v. Interstate Commerce Commission, 221 U. S. 612, 619, 55 L. ed. 878, 883, 31 Sup. Ct. Rep. 621, as follows: 'The length of hours of service has direct relation to the efficiency of the human agencies upon which protection to life and property necessarily depends . . . In its power suitably to provide for the safety of employees and travelers, Congress was not limited to the enactment of laws relating to mechanical appliances, but it was also competent to consider, and to endeavor to reduce, the dangers incident to the strain of excessive hours of duty on the part of engineers, conductors, train despatchers, telegraphers, and other persons embraced within the class defined by the act.' The Safety Appliance Acts are as evidently distinguishable, they likewise being designed to secure the safety of employees and travelers, as this court repeatedly has held. Johnson v. Southern P. Co. 196 U. S. 1, 17, 49 L. ed. 363, 369, 25 Sup. Ct. Rep. 158, 17 Am. Neg. Rep. 412; Southern R. Co. v. United States, 222 U. S. 20, 26, 56 L. ed. 72, 74, 32 Sup. Ct. Rep. 2, 3, N. C. C. A. 822; Texas & P. R. Co. v. Rigsby, 241 U. S. 33, 41, 60 L. ed. 874, 878, 36 Sup. Ct. Rep. 482. Nor does the Federal Employers' Liability Act of April 22, 1908 (35 Stat. at L. 65, chap. 149, Comp. Stat. 1913, § 8657), furnish a precedent for the present legislation. The constitutionality of that act 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, upon grounds very clearly set forth in the opinion, thus (p. 48): 'Congress, in the exertion of its power over interstate commerce, may regulate the relations of common carriers by railroad and their employees, while both are engaged in such commerce, subject always to the limitations prescribed in the Constitution, and to the qualification that the particulars in which those relations are regulated must have a real or substantial connection with the interstate commerce in which the carriers and their employees are engaged;' and again (pp. 50, 51): 'The natural tendency of the changes described is to impel the carriers to avoid or prevent the negligent acts and omissions which are made the bases of the rights of recovery which the statute creates and defines; and, as whatever makes for that end tends to promote the safety of the employees and to advance the commerce in which they are engaged, we entertain no doubt that in making those changes Congress acted within the limits of the discretion confided to it by the Constitution.' Progressive as has been the legislation of Congress and the states enacted during the past thirty years for the regulation of common carriers, I have found none at all analogous to that now under consideration. Besides the acts already referred to, laws have been passed respecting tariffs, bills of lading, through routes, joint rates, the exchange of traffic, terminal charges, locomotive headlights, and a multitude of other matters; but each and all of these have some direct and substantial relation to commerce itself. The suggestion that an increase in the wages of trainmen will increase their contentment, encourage prompt and efficient service, and thus facilitate the movement of commerce, is altogether fanciful. The increase effected is not at all conditioned upon contented or efficient service. It benefits alike those who are efficient and those who are not. It does not equalize wages, but applies proportionately in all cases; making the least increase upon railroads whose rates of pay are the lowest, the greatest where wages are the highest. As a measure for improving the quality of railroad locomotives, a law requiring the companies to pay 25 per cent more than before for each locomotive, without stipulating for any improvement in the quality, would be absurdly ineffective. Equally futile, as a measure for improvement of the quality of railway supplies, would be a provision of law compelling the roads to pay 25 per cent more than formerly for rails, crossties, fuel, and the like, irrespective of the question of quality. In each of these instances the natural effect of the regulation as an aid to commerce would be precisely the same as that of the act under consideration—that is, nil. The attempt is made to sustain the act as analogous to the exercise of the power to fix rates of freight and fare for the carriage of commodities and passengers, or as a branch of that power. This, in my judgment, is a false analogy. The origin and basis of the governmental power to regulate rates are in the right of the public to demand and secure the services of the common carrier on reasonable and equal terms, and without haggling as to rates or other terms. Every member of the public is entitled to be served, and rates are established by public authority in order to protect the public against oppression and discrimination. But there is no common or other right on the part of the trainmen to demand employment from the carriers, nor any right on the part of the carriers to compel the trainmen to serve them. The employment is a matter of private bargaining between the parties, in which each has a constitutional right to exact such terms as he may deem proper. Adair v. United States, 208 U. S. 161, 172, 173, 52 L. ed. 436, 441, 442, 28 Sup. Ct. Rep. 277, 13 Ann. Cas. 764; Coppage v. Kansas, 236 U. S. 1, 20, 59 L. ed. 441, 448, L.R.A.1915A, 960, 35 Sup. Ct. Rep. 240. Thus the sole foundation of the governmental power to fix rates is absent in the case of wages, and the asserted power to fix the latter is inconsistent with the constitutional rights of employer and employee to agree between themselves respecting the terms of the employment. But, further, the interest of the public in the regulation of rates lies in limiting the carrier to a reasonable compensation for his services. Incidentally, such a regulation may exert an indirect influence upon wages, as upon other expenditures of the carrier. Thus, the Interstate Commerce Commission has held that undue cost of operation or management cannot stand as a justification for unreasonably high rates. Milk Producers' Protective Asso. v. Delaware, L. & W. R. Co. 7 Inters. Com. Rep. 92, 164; Society of American Florists v. United States Exp. Co. 12 Inters. Com. Rep. 120, 127. But whatever concern the public authorities, as regulators of commerce, have in the cost of operation or management (including the rates of wages), is in the direction of lowering—not increasing—expenses. The present act has for its purpose and necessary effect the raising of wages; and, whatever may be its justification from the humanitarian standpoint, it cannot seriously be regarded as a regulation of commerce because incidental to a regulation of rates. It is, indeed, the very antithesis of such a regulation. If it reduced wages, it would be much more easily supportable on this theory. The primary and fundamental constitutional defect that I find in the act now under consideration is precisely this: that it undertakes to regulate the relations of common carriers by railroad to their employees in respect to a particular matter—an increase of wages—that has no real and substantial connection with the interstate commerce in which the carriers and their employees are engaged. Certainly the amount of wages that shall be paid to a trainman has no more substantial relation to commerce than the matter which was under consideration in Adair v. United States, 208 U. S. 161, 52 L. ed. 436, 28 Sup. Ct. Rep. 277, 13 Ann. Cas. 764, that is, the right of an employee to retain his employment notwithstanding his membership in a labor organization. In that case this court, by Mr. Justice Harlan, used the following language (p. 178): 'But what possible legal or logical connection is there between an employee's membership in a labor organization and the carrying on of interstate commerce? Such relation to a labor organization cannot have, in itself and in the eye of the law, any bearing upon the commerce with which the employee is connected by his labor and services.' It proves nothing to say that the increase of pay was or is necessary, in the judgment of Congress, to prevent all railroad service in interstate commerce from being suspended. As a law to prevent a strike, the act is quite intelligible; but, as we have seen, the emergency conferred no power upon Congress to impose the burden upon the carriers. If the public exigency required it, Congress perhaps might have appropriated public moneys to satisfy the demands of the trainmen. But there is no argument for requiring the carriers to pay the cost that would not equally apply to renewed demands, as often as made, if made by men who had the power to tie up traffic. I cannot believe that this is regulation of commerce, within the meaning of the Constitution. But, secondly, as already remarked, and as shown in the above quotation from 223 U. S. p. 49, the power of Congress to regulate commerce among the states is 'subject always to the limitations prescribed in the Constitution,' and, among others, to the inhibition of the 5th Amendment against the deprivation of liberty or property without due process of law and the taking of private property for public use without just compensation. This has been held so often that it hardly is necessary to cite cases. Monongahela Nav. Co. v. United States, 148 U. S. 312, 336, 37 L. ed. 463, 471, 13 Sup. Ct. Rep. 622; United States v. Lynah, 188 U. S. 445, 471, 47 L. ed. 539, 549, 23 Sup. Ct. Rep. 349; Adair v. United States, 208 U. S. 161, 180, 52 L. ed. 436, 445, 28 Sup. Ct. Rep. 277, 13 Ann. Cas. 764; United States v. Cress, decided March 12, 1917 [243 U. S. 316, 61 L. ed. 746, 37 Sup. Ct. Rep. 380]. I am convinced that the act trangresses this provision of the Amendment in two respects; first, in that it exceeds the bounds of proper regulation, and deprives the owners of the railroads of their fundamental rights of liberty and property; and, secondly, in that Congress, although confessedly not in possession of the information necessary for intelligent and just treatment of the pending controversy between the carriers and the trainmen (for the act itself, in its second section, provides for the very investigation that the history of the legislation shows was imperatively necessary), arbitrarily imposed upon the carriers the entire and enormous cost of an experimental increase in wages, without providing for any compensation to be paid in case the investigation should demonstrate the impropriety of the increase. Upon the first of these points, I repeat that the sole authority of Congress to regulate these railroad corporations, including that company which is represented in the present action, arises from the fact that they voluntarily have devoted their property to the service of interstate commerce. I am unable to find in the Constitution any authority on the part of Congress to commandeer the railroads, or the services of the trainmen. The cases that are referred to as sustaining the supposed obligation of the carrier to carry on its business regardless of cost, and the authority of government to compel performance of that obligation (Atlantic Coast Line R. Co. v. North Carolina Corp. Commission, 206 U. S. 1, 27, 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; see also Wisconsin, M. & P. R. Co. v. Jacobson, 179 U. S. 287, 302, 45 L. ed. 194, 201, 21 Sup. Ct. Rep. 115), were decisions sustaining the power of state governments to enforce obligations arising out of the grant by the state to the railroad company of the right of existence and the franchise to operate its road; and they were decided upon the authority of a line of decisions in the state courts (Worcester v. Norwich & W. R. Co. 109 Mass. 103, 113; People ex rel. Kimball v. Boston & A. R. Co. 7o N. Y. 569, 571; People v. New York, L. E. & W. R. Co. 104 N. Y. 58, 67, 58 Am. Rep. 484, 9 N. E. 856; People ex rel. Cantrell v. St. Louis, A. & T. H. R. Co. 176 Ill. 512, 524, 35 L.R.A. 656, 45 N. E. 824, 52 N. E. 292) that based the right of control upon the power of the state to enforce the charter obligation and the reserved power to alter or amend the charter in the public interest. The relation of the Federal government to railroad companies not chartered by it is altogether different, being dependent entirely upon the fact that the companies have seen fit to engage in interstate transportation,—a branch of business from which, in my opinion, they are at liberty to withdraw at any time, so far as any authority of the Federal government to prevent it is concerned, however impracticable such withdrawal may be. The extent to which regulation properly can go under such circumstances was defined very clearly by this court in the great case of Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77, where Mr. Chief Justice Waite, speaking for the court, said (p. 126): 'Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but, so long as he maintains the use, he must submit to the control.' The control there referred to was a regulation by the state of the service performed by public warehouses, and a limitation of the charges for that service. The opinion made it plain that the interest of the public was not in the property, but in the use of it; that not its management or disposition in general, but only the manner of its use in the service of the public, was subject to control. The same limitation upon the authority of the public has been variously expressed in many decisions. Thus, in Interstate Commerce Commission v. Chicago G. W. R. Co. 209 U. S. 108, 118, 52 L. ed. 705, 712, 28 Sup. Ct. Rep. 493, the court, by Mr. Justice Brewer, said: 'It must be remembered that railroads are the private property of their owners; that while from the public character of the work in which they are engaged the public has the power to prescribe rules for securing faithful and efficient service and equality between shippers and communities, yet in no proper sense is the public a general manager.' In Southern P. Co. v. Interstate Commerce Commission, 219 U. S. 433, 444, 55 L. ed. 283, 287, 31 Sup. Ct. Rep. 288, reference was made to the unwarranted assertion by the Commission of 'a power which, if it obtained, would open a vast field for the exercise of discretion, to the destruction of rights of private property in railroads, and would, in effect, assert public ownership without any of the responsibilities which ownership would imply.' And, in the Minnesota Rate Cases (Simpson v. Shepard) 230 U. S. 352, 433, 57 L. ed. 1511, 1555, 48 L.R.A.(N.S.) 1151, 33 Sup. Ct. Rep. 729, Ann. Cas. 1916A, 18, it was siad: 'The property of the railroad corporation has been devoted to a public use. There is always the obligation springing from the nature of the business in which it is engaged —which private exigency may not be permitted to ignore that there shall not be an exorbitant charge for the service rendered. But the state has not seen fit to undertake the service itself; and the private property embarked in it is not placed at the mercy of legislative caprice. It rests secure under the constitutional protection which extends not merely to the title, but to the right to receive just compensation for the service given to the public.' The case last mentioned was one of alleged confiscation resulting from a state law limiting rates of freight, and the language quoted was appropriate to that topic. But the right to immunity from confiscation is not the only right of property safeguarded by the 5th Amendment. Rights of property include something more than mere ownership and the privilege of receiving a limited return from its use. The right to control, to manage, and to dispose of it, the right to put it at risk in business, and by legitimate skill and enterprise to make gains beyond the fixed rates of interest,—the right to hire employees, to bargain freely with them about the rate of wages, and from their labors to make lawful gains,—these are among the essential rights of property, that pertain to owners of railroads as to others. The devotion of their property to the public use does not give to the public an interest in the property, but only in its use. This act, in my judgment, usurps the right of the owners of the railroads to manage their own properties, and is an attempt to control and manage the properties rather than to regulate their use in commerce. In particular, it deprives the carriers of their right to agree with their employees as to the terms of employment. Without amplifying the point, I need only refer again to Adair v. United States, 208 U. S. 161, 174, 178, 52 L. ed. 436, 442, 444, 28 Sup. Ct. Rep. 277, 13 Ann. Cas. 764. I wholly dissent from the suggestion, upon which great stress is laid in the opinion of the majority of the court, that the admittedly private right of the carriers and their employees to fix by agreement between themselves the standard of wages to control their relations—a right guaranteed by the 'due process of law' clause, as this court repeatedly has held—can be set at naught or treated as waived in the present instance because the parties have failed to agree, or that legislative interference can be justified on that ground. The right to contract is the right to say by what terms one will be bound. It is of the very essence of the right that the parties may remain in disagreement if either party is not content with any term proposed by the other. A failure to agree is not a waiver but an exercise of the right,—as much so as the making of an agreement. To say that the United States has such a relation to interstate traffic and the transportation of the mails that it may interfere directly, by force, or indirectly, through the courts, to remove obstructions placed by wrongdoers in the way of such transportation (Re Debs, 158 U. S. 564, 582, 586, 39 L. ed. 1092, 1101, 1103, 15 Sup. Ct. Rep. 900), is not to say that, when obstruction is threatened, Congress, without taking over the railroads and paying just compensation to the owners, may exercise control of the revenues and dispose of them for the purpose of buying peace, either by direct intervention or through coercive legislation. To do this is to ignore the distinction between meum and tuum, to safeguard which was one of the objects of the 5th Amendment. The logical consequences of the doctrine now announced are sufficient to condemn it. If Congress may fix wages of trainmen in interstate commerce during a term of months, it may do so during a term of years, or indefinitely. If it may increase wages, much more certainly it may reduce them. If it may establish a minimum, it may establish a maximum. If it may impose its arbitral award upon the parties in a dispute about wages, it may do the same in the event of a dispute between the railroads and the coal miners, the car builders, or the producers of any other commodity essential to the proper movement of traffic. That the act is a wide departure from all previous legislation for regulating commerce has been shown. The bearing of this upon the present point is obvious, since it is a safe assertion that every dollar of the thousands of millions that are invested in railroads in this country has been invested without any anticipation or reason for anticipating that a law of this character would be adjudged to be permissible, either as a regulation of commerce or on any other ground. Upon the second ground, of repugnancy to the 5th Amendment, I need not dwell, since it is dealt with fully in the dissenting opinion of Mr. Justice Day, with whose views upon that question I entirely agree.

244.US.191

The court is not called upon to consider state statutes passed for the enforcement of a provision in the state constitution, when the latter as construed and applied in the case by the state supreme court is self-executing and covers the judgment in question. As applied to a company engaged in both interstate and intrastate traffic, a state regulation, in respect of the latter only, which forbids any railroad company in general terms from charging more for a shorter haul than for a longer haul for the same class of freight over any portion of its lines within the State without regard to direction, circumstances or condition, and which allows the shipper an absolute right to recover any overcharges collected from him in violation of the prohibition, is consistent with the Fourteenth Amendment, the Commerce Clause, and the Interstate Commerce Acts, in the absence of special facts and circumstances warranting a different conclusion in the particular case. Louisville & Nashville R. R. Co. v. Kentucky, 183 U. S. 503. To claim exemption from such regulations under the Contract Clause, the existence of a special protecting contract must be shown by the record. 178 S. W. Rep. 1179, affirmed.

Defendant in error filed a petition containing forty-seven counts in the Lafayette circuit court, seeking to recover what it paid in excess of alleged lawful freight rates upon as many shipments of coal from Myrick, Missouri, to other points in that state. The first count follows. It is identical in substance with all others except as to dates, amount of coal shipped, charges paid, destination, and comparative rates. 'Plaintiff avers that on April, 1908, it was and still is a coal mining company incorporated under the law of the state of Missouri. 'Plaintiff, for first cause of action, avers that on October, 1879, the defendant was and has been ever since a railroad corporation duly organized under the law of said state and a common carrier for hire of freight and passengers between its stations, hereinafter named, in said state. 'That within five years last past and on the dates hereinafter named plaintiff produced and sold bituminous coal from its own mines near Myrick, one of defendant's stations in said county, and that on the various dates named in exhibit No. 1, and in the cars therein described by number and initial, it shipped by defendant's road from said Myrick in the aggregate 867,000 pounds of its said coal in carload lots to the consignee named in said exhibit at Strasburg, Missouri, another station on defendant's road. 'Plaintiff avers that for the said carriage of the said coal defendant fixed, charged, and demanded and received of the plaintiff 80 cents per ton, an illegal freight rate, being 30 cents per ton more than defendant was by law entitled to fix, demand, charge, and receive, in this: that during all said times and dates herein named defendant had fixed, charged, demanded, and received for the carriage for the same class of coal over its said line and over another part of said road from its station of Liberal, Missouri, and to another of its said stations, viz., Granby, in said state, a distance of 77.14 miles, 50 cents per ton by the carload, while the distance from said Myrick to said Strasburg was only 61.95 miles, for which said rate of 80 cents per ton for said carriage fixed, charged, demanded, and received of plaintiff as aforesaid; and the same was illegal and exceeded the amount the defendant was entitled to fix, charge, demand, and receive for said shipments by the sum of $130.05. 'And the plaintiff avers that it is damaged and aggrieved by reason of said illegal freight charge in the sum of $130.05; wherefore it prays judgment for the same and for damages not exceeding $1,000, and for all other and general relief, according to the statutes in such case made and provided.' The answer to count one,—identical in effect with answers to all others,—formal and some presently unimportant parts being omitted, follows: 'Comes now the defendant and for answer to the first count of plaintiff's petition states that the same is founded upon the Session Laws of Missouri 1872, page 69, now §§ 3173 and 3211 of the Revised Statutes of Missouri 1909, and § 12 of article 12 of the Constitution of Missouri 1875, and that said sections are null and void and of no legal force and effect for the following reasons: '(a) Because said §§ 3173 and 3211 of the Revised Statutes of Missouri 1909, when enacted by the legislature, were passed in violation of § 32 of article 4 of the Constitution of Missouri 1865, in this: . . . '(b) Because said §§ 3173 and 3211 are repugnant to and in violation of § 14 of article 12 of the Constitution of Missouri 1875, in this: . . . '(c) Because said §§ 3173 and 3211, Revised Statutes of Missouri 1909, when reenacted by the legislature in 1879, were not legally re-enacted, but were enacted in violation of § 28 of article 4 of the Constitution of Missouri 1875, in this: . . . '(d) Because said §§ 3173 and 3211 of the Revised Statutes of Missouri 1909 were repealed by an act of the legislature passed in 1887, entitled, 'An Act to Regulate Railroad Corporations,' passed at the extra session of 1887, same being found in the Session Laws of 1887 at page 15, now §§ 3185 and 3193 of the Revised Statutes 1909. 'For further answer to said count, the defendant says that § 12 of article 12 of the Constitution of Missouri 1875, and §§ 3173 and 3211 and §§ 3185 and 3193 of the Revised Statutes of Missouri 1909, are in violation of § 1 of article 14 of the Amendments to the Constitution of the United State in this: that said sections of the Constitution of Missouri and of the Revised Statutes of Missouri deprive defendant of its property without due process of law and deny to it the equal protection of the laws. '. . . Sections 3173 and 3211 of the Revised Statutes of Missouri 1909 are repugnant to and in violation of article 5 of the Amendments to the Constitution of the United States in this: That said sections deprive the defendant of its property without due process of law. '. . . Sections 3173 and 3211 and §§ 3185 and 3193 of the Revised Statutes of Missouri 1909, and § 12 of article 12 of the Constitution of Missouri 1875, are in conflict with § 8 of article 1 of the Constitution of the United States and the various laws passed by Congress thereunder in this: that the said defendant is engaged in interstate commerce and owns and operates various lines of railroad as a part of its system which run into other states than Missouri, and into the states of Kansas, Colorado, Nebraska, Oklahoma, Illinois, Arkansas, and Louisiana, and that the train in which the plaintiff's property described in said count was being transported was at the time engaged in interstate commerce and contained carload lots and shipments of merchandise consigned and being carried from points without the state of Missouri to points within this state, and from points within this state to points without the same, and from points without this state across the state of Missouri and to points in other states, and that, by reason of the premises, this state is without jurisdiction to adopt and pass the sections named and to enforce the provisions of the same against this defendant while so engaged in interstate commerce. '. . . Sections 3173 and 3211 and §§ 3185 and 3193 of the Revised Statutes of Missouri 1909, and § 12 of article 12 of the Constitution of Missouri 1875, are in conflict with § 8 of article 1 of the Constitution of the United States and the various laws passed by Congress thereunder in this: that the defendant's railroad is an interstate road and its lines extend over and through the states of Missouri, Kansas, Colorado, Nebraska, Illinois, Oklahoma, Arkansas, and Louisiana, and that it is engaged in interstate commerce over its said lines through all of said states, and operates trains over the same in transporting freight and passengers through said states; that said section of the Constitution of Missouri and sections of the Revised Statutes seek to compel the defendant arbitrarily to fix its rates in this state and in all of said states, and in comparison with rates existing in all such states, without regard to the laws passed by Congress regulating interstate commerce. '. . . Defendant denies each and every allegation therein contained. . . .' Upon motion, the trial court struck from the answer 'all alleged defenses pleaded to each of the counts in the petition except the traverses.' No evidence was offered except the stipulation quoted below: 'It is hereby stipulated between the parties that the defendant's stations, the rates charged by the defendant, including those paid by the plaintiff, the amount of coal transported, and the distance set out in the several counts of the petition, are correctly stated therein. It is further stipulated that such coal was delivered by the plaintiff to the defendant for shipment in the usual and ordinary way without any direction or request by plaintiff as to what particular trains the same was to be transported in, and that the defendant received and transported the same in the usual and ordinary course of business, on the usual trains passing over its road. It is further agreed that the trains in which the defendant hauled said cars of coal contained other cars and shipments consigned from points within this state to points without the same, from points without the same to points within this state, and from points without this state through this state and to points in other states.' A jury being waived, the court rendered judgment upon each count for alleged overcharge, without penalty,—on the first count $130.05, total upon all, $16,504.19; and this action the state supreme court affirmed. ——Mo. ——, 178 S. W. 1179. The insistence here is that, as construed and applied, § 12, article 12, Missouri Constitution 1875, and also §§ 3173 and 3211, Revised Statutes 1909, deprive plaintiff in error of property without due process of law and deny it equal protection, contrary to the 14th Amendment, and also conflict with § 8, article 1, Federal Constitution. Sections 3173 and 3211 originated in the Act of 1872. The first provides that no railroad corporation organized or doing business within the state shall 'charge or collect for the transportation of goods, merchandise or property over any portion of its road a greater amount as toll or compensation than shall be charged or collected by it for the transportation of similar quantities of the same class of goods, merchandise or property over any other portion of its road of equal distance.' And the second prescribes a penalty for violating the first, not exceeding $1,000, with costs, etc., to be recovered by aggrieved party. The supreme court declared: 'Each count of the petition is in legal effect identical with the counts of the petition in McGrew v. Missouri P. R. Co. 258 Mo. 23, 166 S. W. 1033, and with those in the cases between the same parties, cited in the opinion in that case, differing only in amounts, dates, and destination of shipments, and in distances used for purposes of comparison. . . . The assignments of error in this case, in legal effect, and the points and authorities, verbatim, are identical with those in that case. The authorities cited are exactly the same.' And upon the opinion in the cause referred to, it affirmed the trial court. In McGrew v. Missouri P. R. Co. supra, the court followed McGrew v. Missouri P. R. Co. 230 Mo. 496, 132 S. W. 1076, where (the issues being the same as those here presented), after considering the whole subject, it was held that plaintiff's judgment could be sustained under § 12, article 12, Constitution of Missouri 1875, without reliance upon any statute. The court said: (230 Mo. 546.) 'The petition was framed upon the Act of 1872, but in view of the fact that the trial court denied the penalties asked, and allowed only the difference between the higher rates charged plaintiff and the lower rates charged by defendant for the longer distances, the judgment could be sustained upon § 12 of article 12 of the Constitution, without the aid of the Act of 1872, provided that said section of the Constitution is self-enforcing. Because if said section is self-enforcing, that is to say, if it, without the aid of any statutory enactment, makes it unlawful for a railroad company to charge more for a shorter haul than a longer one of the same class of property in any direction, the same or not, and under any or all circumstances and conditions, then clearly the measure of damages for doing the unlawful thing, in the absence of any statute upon the subject, is the amount of the excess charged for the shorter distance over that charged for the longer distance.' (561.) 'Section 12 of article 12 of our Constitution clearly establishes an unconditional short-haul rule, without regard to direction or to circumstances and conditions. Said section declares that it shall be unlawful for any railroad company to charge for the transportation of freight or passengers a greater amount for a less distance than 'the amount charged for any greater distance.' That declaration establishes a rule, and creates a right in every passenger and shipper to a compliance with, and an obedience to, its terms. . . . Said section has the same force and effect as if it read: 'It shall not be lawful in this state for any railroad company to charge, under penalties which the general assembly shall prescribe, for freight or passengers, a greater amount for the transportation of the same for a less distance than the amount charged for any greater distance.' Had said section read that way, its effect as an operative law would have been too clear for controversy. To my mind it is equally clear under the present reading.' In view of this ruling, it is unnecessary for us to consider either terms, validity, or possible application of sections of Revised Statutes mentioned in the answer. Section 12, article 12, Constitution of Missouri, provides: 'It shall not be lawful in this state for any railway company to charge for freight or passengers a greater amount, for the transportation of the same, for a less distance than the amount charged for any greater distance; and suitable laws shall be passed by the general assembly to enforce this provision; but excursion and commutation tickets may be issued at special rates.' As construed and applied in the present cause, this section prohibits the carrier from charging in respect of intrastate commerce more for a shorter haul than for a longer one over any portion of its line within the state, without regard to direction, dircumstance, or condition; and if this inhibition is disobeyed the shipper acquires an absolute right to recover any overcharge paid by him. The record does not disclose when plaintiff in error was incorporated, or what provisions its charter contains. There is no suggestion of anything therein amounting to a contract exempting it from legislation commonly within the police power. No claim is made that the cost of moving freight over its lines in Missouri is without substantial relation to distance; and no facts are alleged which indicate material differences between conditions and circumstances under which the hauls from mines at Myrick were made and those surrounding the longer shipments for less charges over other portions of the road. Arguments identical in principle with those now presented to show invalidity of the inhibition under consideration, because of conflict with the 14th Amendment and interference with interstate commerce, were considered and rejected in Louisville & N. R. Co. v. Kentucky, 183 U. S. 503, 46 L. ed. 298, 22 Sup. Ct. Rep. 95, approved in Intermountain Rate Cases (United States v. Atchison, T. & S. F. R. Co.) 234 U. S. 476, 489, 58 L. ed. 1408, 1423, 34 Sup. Ct. Rep. 986. And we think it must be accepted as settled that unless some controlling circumstance of a character not here disclosed is established, or a special protecting contract exists, there is nothing in the provisions of the Federal Constitution or laws presently relied on which necessarily restricts the power of a state by general rule to prohibit railway companies from receiving higher charges for shorter hauls than for longer ones when both are wholly within its borders. Such a prohibition is not necessarily an arbitrary, unreasonable, or grossly oppressive measure for preventing discriminations and insuring equal and just treatment to all shippers. We find no error in the judgment below, and it is affirmed.

246.US.631

There is no inconsistency between the Employers' Liability Act and the application to cases arising under it in the state court of a general state law giving the attorney a Hen on his client's cause of action and rendering the defendant directly liable to the attorney. Where this question was called to the attention of the state trial and supreme courts and discussed by the latter, upon an intervention of the attorney in an action wherein the complaint stated a case under the act, this court has jurisdiction by writ of error to review the judgment sustaining the lien. 137 Minnesota, 410, affirmed.

This is a writ of error to correct a judgment of the Supreme Court of Minnesota which sustained the validity of a statute of the State held applicable to this case and alleged by the plaintiff in error to be repugnant to the Constitution and laws of the United States when so applied. The facts that raise the question are simple. One Holloway sued the plaintiff in error under the Employers' Liability Act for personal injuries and engaged the defendant in error, Stiles, as his attorney, agreeing to pay him one-third of the amount recovered by suit or settlement. The statutes of Minnesota give the attorney a lien upon the cause of action. Gen. Stats. of 1913, § 4955. Before trial the plaintiff in error settled by paying $6,500. Stiles intervened in the cause and claimed his fee pursuant to his contract. There was a trial which ended in a judgment for Stiles—the trial court ruling that the Minnesota statute was effective to impose a lien upon a cause of action arising under the Act of Congress relating to the liability of carriers by railroad to their employes. April 22, 1908, c. 149, 35 Stat. 65. April 5, 1910, c. 143, 36 Stat. 291. The Supreme Court of the State sustained this ruling, 137 Minn. 410, 163 N. W. 791, and subsequently, without further discussion, affirmed the judgment for Stiles. It is argued for the defendant in error that it does not appear sufficiently in the record that the case turned upon the ruling supposed. But the original declaration was for an injury alleged to have been received in interstate commerce and, whatever the answer denied, that was the claim that was settled. The question was called to the attention of the trial court and was discussed at length by the Supreme Court. We perceive no ground for the motion to dismiss. Coming to the merits, cases that declare that the acts of Congress supersede all state legislation on the subject of the liability of railroad companies to their employes have nothing to do with the matter. The Minnesota statute does not meddle with that. It affects neither the amount recovered nor the persons by whom it is recovered, nor again the principles of distribution. It deals only with a necessary expense of recovery. Congress cannot have contemplated that the claims to which its action gave rise or power would be paid in all cases without litigation, or that suits would be tried by lawyers for nothing, yet it did not regulate attorney's fees. It contemplated suits in state courts and accepted state procedure in advance. Minneapolis & St. Louis R. R. Co. v. Bombolis, 241 U. S. 211, 36 Sup. Ct. 595, 60 L. Ed. 961, L. R. A. 1917A, 86, Ann. Cas. 1916E, 505; Louisville & Nashville R. R. Co. v. Stewart, 241 U. S. 261, 36 Sup. Ct. 586, 60 L. Ed. 989. We see no reason why it should be supposed to have excluded ordinary incidents of state procedure. Before the Carmack Amendment it was held not to invalidate state legislation requiring, under a penalty, prompt settlement of claims for loss of freight in the State, Atlantic Coast Line R. R. Co. v. Mazursky, 216 U. S. 122, 30 Sup. Ct. 378, 54 L. Ed. 411; see Charleston & Western Carolina Ry. Co. v. Varnville Furniture Co., 237 U. S. 597, 35 Sup. Ct. 715, 59 L. Ed. 1137, Ann. Cas. 1916D, 333; or, since that amendment, allowing in the costs a moderate attorney's fee, for small claims unsuccessfully disputed, Missouri, Kansas & Texas Ry. Co. v. Harris, 234 U. S. 412, 34 Sup. Ct. 790, 58 L. Ed. 1377, L. R. A. 1915E, 942, although both laws affect commerce among the States. The statutes referred to in the last cited cases imposed liability for an additional sum. The present one does not. We presume that it would not be contended that the Employers' Liability Act prevented the assignment of a judgment under it in such form as was allowed by the law of Minnesota, or that it allowed the defendant to disregard such an assignment after notice. Nor do we perceive any different rule for an assignment of judgment or cause of action by way of security, which under the Minnesota statute the contract with Holloway brought to pass. It is true that this security is made effectual by requiring payment to the attorney, Davis v. Great Northern Ry. Co., 128 Minn. 354, 358, 151 N. W. 128, and this may be said to result in requiring the judgment debtor to split up the payment. But surely there is nothing in that liability, seemingly common to all Minnesota judgments, Wheaton v. Spooner, 52 Minn. 417, 423, 54 N. W. 372, that introduces an interference with the Act of Congress that otherwise would not exist. In cases where a partial assignment is provided for irrespective of attorneys' fees we should not expect to hear the suggestion of such a point. The whole case is simply that the State allows the attorney employed to collect a claim to be subrogated to the rights of the claimant so far as to secure the attorney's fees. We see no reason why it should not. Judgment affirmed.

242.US.357

Under the statutes of Connecticut, a garnishment of deposits in an ordinary savings bank without stockholders which is subject to a fiduciary duty to hold and invest for the benefit of its depositors all funds that it receives and to pay over to them the net income beyond enough to constitute a small safety fund, Gen. Stats., §§ 3440, 3441, reaches not only the principal of the deposits but also the dividends that accrue after service of the writ. The lien is not affected by an assignment of the savings accounts made after the service. 236 Fed. Rep. 444, affirmed.

This is scire facias, where the statutes of Connecticut provide a similar remedy, to recover savings bank accounts attached by trustee process in the hands of the plaintiff in error, judgment having been recovered in the original suit by the defendant in error and execution taken out. The garnishee submitted itself to the judgment of the court, admitting deposits, but setting up that after the attachment the accounts had been assigned to the United Hatters of North America, and that the assignee claimed the dividends that had accrued since the writ was served. The assignee was cited, appeared, and made the claim. The principal, except an item of $428.52, now has been paid, and the right to the dividends is the only question in the case. The circuit court of appeals decided that the attaching creditor had the better right. L.R.A. 1917B, 938, 236 Fed. 444. There is no doubt that under the statutes of Connecticut, as usual elsewhere, a garnishment reaches only effects of the defendant in the hands of the garnishee at the time of service upon the latter, as distinguished from contingent liabilities that do not become effects in the garnishee's hands until a later time. Gen. Stat. 1902, §§ 880, 931. But the commonest object of such attachments is a right, regarded as a thing within reach of the process because of the power of the court over the person subject to the corresponding obligation. Barber v. Morgan, 84 Conn. 618, 623, 80 Atl. 791, Ann. Cas. 1912D, 951; Osborn v. Lloyd, 1 Root, 447; Harris v. Balk, 198 U. S. 215, 222, 49 L. ed. 1023, 1026, 25 Sup. Ct. Rep. 625, 3 Ann. Cas. 1084. If the right is vested, the attachment reaches the whole of it, and therefore, there being no doubt that a debitum in praesenti solvendum in future could be attached (Gen. Stat. § 936), it was admitted at the argument that in the case of an interest-bearing debt the subsequently accruing interest was held as well as the principal. The obligation to pay the one stands on the same footing as the obligation to pay the other; the two are one; they are limbs of the same contract; and there is no reason for splitting them up. Adams v. Cordis, 8 Pick. 260, 269. It may be true that, apart from statute, the attachment of stock in a corporation would not hold subsequently declared dividends; but, if so, that is because the stockholders have no right to the dividends until they are declared, which may never be if the directors see fit to convert earnings into capital. Gibbons v. Mahon, 136 U. S. 549, 34 L. ed. 525, 10 Sup. Ct. Rep. 1057. Compare Norton v. Norton, 43 Ohio St. 509, 525, 3 N. E. 348. The question then narrows itself to whether the so-called dividends of savings banks are analogous to dividends of a corporation, or to interest due by contract upon a debt. The plaintiff in error is an ordinary savings bank without stockholders. It is subject to a fiduciary duty to hold and invest for the benefit of its depositors all the funds that it receives, and to pay over to them all the net income earned, after the retention of enough to constitute a small safety fund. Gen. Stat. §§ 3440, 3441. This duty certainly is no less because created by statute rather than by contract. It is guarded by other statutes limiting the investments allowed and requiring inspection, with the object of making principal and income secure rather than large. Gen. Stat. §§ 3428, 3457. The minimum amount of the dividends generally is as fixed in practice as if it were written in a bond. The practical certainty that a savings bank will pay is greater, in short, than that an average debtor will pay 6 per cent according to his promise in a note. The only element of uncertainty other than that conditioning all future conduct is the possibility that the dividend may be greater than that which experience has led the depositor to expect. He has a vested right to the dividends,—a vested right that the corporation should take the most prudent steps to secure them, with an identified fund devoted to the result. We do not perceive why the possibility of there being no earnings because of fraud or a cataclysm, or a possibility of the earnings being greater than was expected, should make the right less a present one, subject to and covered by the attachment, than the right to the capital, which runs the same risks (Bunnell v. Collinsville Sav. Soc. 38 Conn. 203, 9 Am. Rep. 380), or than that arising from the promise of a debtor, who may fail or abscond, or, if a corporation, may have no assets. The case certainly is not weakened, it rather seems to us to be strengthened, by the fact that the statutes of Connecticut provide that the levy of attachments and executions upon even the shares of a corporation shall include dividends growing due thereon. The provision indicates a policy, and although, of course, the words do not include dividends from savings banks, as, in our opinion, they did not need to, it is only by imagining unreal distinctions that the policy embodied in the statute, and extending by the common law to interest due upon contract, can be held to exclude the claim to subsequently earned income of ordinary savings banks, when that claim, as we have tried to show, is a vested right. Middletown Sav. Bank v. Jarvis, 33 Conn. 372, 379. See Norton v. Norton, supra. No argument against our conclusion can be based on the right to release the attachment by giving a bond equal to the value of the effects attached. Gen. Stat. §§ 849, 852. We presume that ordinarily a plaintiff would be satisfied with a bond for the principal of a debt or deposit. If he should raise a question we will wait for the Connecticut courts to decide whether he might or might not be entitled to more. Finally, the assignment, of course, has no effect upon the rights of the defendant in error. If the attachment would have held dividends as against the original defendant, it holds them as against the assignee. Judgment affirmed.

243.US.422

A provision in the special charter of a railroad company permitting the grantee to lease its road to any other railroad company "upon such terms as may be mutually agreed upon" is not to be construed as authority for the lessor and lessee to determine what shall be their respective liabilities to third persons who may be tortiously injured in the operation of the road when leased; therefore it creates no contract right which would be impaired by subsequent general legislation rendering the lessor and lessee jointly liable for such torts when committed by the latter, and this quite apart from any power of the legislature to alter or amend the charter. A state law rendering any railroad compariy of the State leasing its road to a company of another State liable jointly with the lessee for actionable torts of the latter committed in the operation of the road, does not deprive of due process or deny the equal protection of the laws. When the plaintiff pleads a case of joint liability under the state law against a resident and a nonresident defendant, the case is not removable from the state to the federal court in the absence of any showing that the defendants were joined fraudulently for the purpose of preventing removal. 187 S. W. Rep. 830, affirmed.

This was an action to recover for personal injuries caused, as was alleged, by negligently backing an engine and cars across a public street in Vandalia, missouri, without taking any precautions for the safety of persons using the street at the time. The action was against two railroad companies, one incorporated in Missouri and the other in Illinois. The former had constructed and still owned the railroad, and the latter was operating it under a lease. A trial resulted in a judgment for the plaintiff, and this was affirmed. ——Mo. ——, 187 S. W. 830. The Missouri company was created by a special act in 1859, Laws 1859, p. 400, which was amended, with the company's consent, by special acts in 1868 and 1870, Laws 1868, p. 97; Laws 1870, p. 93. A general and older statute provided that all subsequent corporate charters should be 'subject to alteration, suspension, and repeal, in the discretion of the legislature,' Rev. Stat. 1855, p. 371, § 7; but these special acts declared that this provision should have no application to them or to the Missouri company. After the Act of 1859, and before it was amended, the state adopted a new Constitution containing a provision that corporations, other than for municipal purposes, could be formed only under general laws and that these might be altered, amended, or repealed; but, under the local decisions, it is doubtful at least that this provision was applicable to subsequent amendments of charters previously granted (State ex rel. Circuit Atty. v. Cape Girardeau & S. L. R. Co. 48 Mo. 468; St. Joseph & I. R. Co. v. Shambaugh, 106 Mo. 557, 569, 17 S. W. 581; Callaway County v. Foster, 93 U. S. 567, 570, 23 L. ed. 911, 912), and so it may be put out of view. The amendment of 1870, which took effect on March 20th of that year, authorized the Missouri company to lease its road for a period of years to any other railroad company 'upon such terms as may be mutually agreed upon.' March 24 of the same year a general statute was enacted which, as locally interpreted, renders any railroad company of that state leasing its road to a company of another state liable jointly with the lessee for any actionable tort of the latter, committed in the operation of the road. Laws 1870, p. 91, § 2; Brown v. Louisiana & M. River R. Co. 256 Mo. 522, 534, 165 S. W. 1060. Following this enactment the Missouri company leased its road to the Illinois company, and it was under this lease that the latter was operating the road when the plaintiff was injured. In the lease the lessee agreed to pay off and satisfy all lawful claims for damages arising out of its negligence or dereliction of duty while operating the road. The general statute of March 24, 1870, now embodied in Rev. Stat. 1909, § 3078, was applied in this case over the Missouri company's objection that it could not be so applied without bringing it in conflict with the contract clause of the Constitution of the United States and with the due process and equal protection clauses in the 14th Amendment. The overruling of this objection and the denial of a petition for removal to the Federal court are the matters to be reviewed here. In invoking the contract clause the Missouri company goes upon the theory that the special acts constituting its corporate charter broadly authorized it to lease its road to any other railroad company upon any terms which might be agreeable to both, and that, in the absence of a reservation of power to alter, amend, or repeal the charter, a later statute qualifying the authority to lease, or attaching any condition to its exercise,—as by making the company liable for the torts of the lessee committed in conducting the road,—necessarily impairs the obligation of the charter contract. While not doubting that any lawful contract contained in the charter is within the protection of the clause invoked (Stone v. Mississippi, 101 U. S. 814, 816, 817, 25 L. ed. 1079), we find nothing in the charter respecting the liability of the Missouri company for torts committed by another company to which it commits the operation of its road under a lease. That subject is not dealt with in the charter in any way. The provision that the leasing may be upon such terms as are mutually agreeable to the parties is not in point, for it obviously relates to matters which appropriately can be left to the lessor and lessee, such as their rights and duties as between themselves, and not to matters of public concern, such as the rights of third persons to recover for injuries sustained through the negligent operation of the road under the lease. As to the latter, we think it is plain that no contract was intended or made by the state, and that the matter remained open to legislative action when the provision in the Act of March 24, 1870, was adopted. Texas & N. O. R. Co. v. Miller, 221 U. S. 408, 55 L. ed. 789, 31 Sup. Ct. Rep. 534; St. Louis & S. F. R. Co. v. Mathews, 165 U. S. 1, 41 L. ed. 611, 17 Sup. Ct. Rep. 243; Chicago & A. R. Co. v. Tranbarger, 238 U. S. 67, 76, 59 L. ed. 1204, 1210, 35 Sup. Ct. Rep. 678. That provision was in force when the lease was made. It is not inherently arbitrary, is found in the laws of other states, and applies to all railroad companies of Missouri which lease their roads to companies of other states. In these circumstances it neither deprives the Missouri company of its property without due process of law, nor denies to it the equal protection of the laws. The plaintiff was a citizen of Missouri, and, as before stated, one of the defendants was an Illinois corporation. The latter sought to remove the case against it into the Federal court upon the ground that the same involved a distinct and separable controversy between citizens of different states. But the petition for removal was denied, and rightly so. Under the local law the case stated in the plaintiff's pleading was one of joint liability on the part of the defendants, and, for the purpose of passing upon the petition for removal, this was decisive of the nature of the controversy, there being no showing that the defendants were fraudulently joined for the purpose of preventing a removal. Alabama G. S. R. Co. v. Thompson, 200 U. S. 206, 213 et seq., 50 L. ed. 441, 445, 26 Sup. Ct. Rep. 161, 4 Ann. Cas. 1147; Chesapeake & O. R. Co. v. Cockrell, 232 U. S. 146, 152, 58 L. ed. 544, 547, 34 Sup. Ct. Rep. 278. Judgment affirmed.

244.US.325

Under § 3438 of the Revised Statutes of Nebraska, 1913, as construed by the Supreme Court of the State, the owner of an irrigation canal may be compelled to bridge it to afford access between the lands of another which are intersected by it, although the canal was built across the lands by one who owned them at the time and who sold the separated parcels by successive conveyances to their present owner, after the canal had been long in operation and after it had been disposed of to another interest. In virtue of the right to affix conditions to grants of corporate power, the State of Nebraska, in granting appellant Irrigation District the privilege of obtaining lands for canals, etc., by condemnation, was justified in imposing, by the same law, the duty to build bridges without further compensation in the circumstances indicated in the preceding paragraph, and appellant, having accepted the privilege cum onere, can not complain that its property is taken in violation of the due process clause of the Fourteenth Amendment when the requirement is enforced, even though the right of way for the particular canal in question was acquired without resort to tondemnation. A state law laying a duty upon all owners of irrigation canals to construct bridges over them for the benefit of abutting lands does not violate the equal protection clause of the Fourteenth Amendment in not embracing canals devoted to other uses. 98 Nebraska, 239, affirmed. "I TE case is stated in the opinion.

Peter O'Shea filed his petition in the district court of Scotts Bluff county, Nebraska, alleging, among other things, that the Farmers Irrigation District is a corporation organized and existing under and by virtue of an act to provide for the organization and government of irrigation districts, and to provide for acquiring the right of way to build irrigation ditches or canals, and other property, for the dividing of certain portions of the territory of the state of Nebraska into irrigation districts, and for the purpose of buying irrigating canals already constructed, or partially constructed, and paying for the same; that the Farmers Irrigation District is the owner of an irrigation canal in Scotts Bluff county, Nebraska, which canal intersects certain described real estate owned by the relator; that that portion of this real estate lying north of the right of way of the canal does not about upon any public highway, nor has the relator any private way from this real estate lying north of the canal to any highway; that the only convenient way by which the real estate on the north side of the canal can be used with that on the south side is to construct a bridge across the canal; that that portion of the land lying south of the canal abuts upon a public highway, but that portion lying north of the right of way of the canal is completely cut off from any public highway, because of the fact that the canal forms an impassable barrier unless a bridge is constructed over the same; that the portion of said real estate north of said canal is a quarter of a mile from the east side of the same to a public highway, and is also a distance of a quarter of a mile from the west side of said real estate to a public highway, and is also a distance of one-half mile from the north side of the same to a public highway, without any private way leading to any highway, and the lands between the east, west, and north side of said real estate, and the public highways, are held in private ownership; that it is necessary for the free and convenient use of the lands on both sides of the canal by the owner thereof that the owner of the canal erect a suitable and convenient bridge across the canal; that demand has been made upon the respondents to erect a bridge across the canal at a point to be indicated by the relator on these premises, and that respondents have refused to erect such bridge; that the owner of the premises has no way of ingress and egress from that portion of the premises lying north of the right of way of the canal except through the private property of others. Wherefore, relator prayed that an alternative writ of mandamus issue to the respondents, commanding them forthwith to erect a suitable and convenient wagon bridge over the canal at a point to be designated by the relator, or to show cause why a peremptory writ of mandamus should not issue. The alternative writ of mandamus was issued as prayed for, and the respondents thereupon appeared and answered, alleging that in and prior to the year 1906 the land on both sides of the canal was owned by the Tri-State Land Company; that said Tri-State Land Company while the owner of said land caused an irrigation ditch or canal to be constructed over and across the same, which irrigation ditch is the same now owned by the Farmers Irrigation District, the Tri-State Land Company originally being the owner of both the land and the irrigation ditch; that thereafter the Tri-State Land Company sold and conveyed the canal together with the right of way to the Farmers Mutual Canal Company, and the latter company thereafter sold and conveyed the canal and the right of way to the respondent, the Farmers Irrigation District, which now holds the same; that the Tri-State Land Company treated the parcel of land lying north of the canal and the parcel lying south of the canal as two separate tracts and parcels of lands; that the Tri-State Land Company conveyed these tracts at different times and as separate parcels to the relator, Peter O'Shea, and that O'Shea purchased the lands after the construction of the irrigation canal and at different times as two separate and distinct tracts of land, divided from each other by the right of way and canal of the Farmers Mutual Canal Company; and that therefore the rights of the relator, O'Shea, are derived from and through the Tri-State Land Company, and that he has no greater of other right in the premises than the Tri-State Land Company would have. The respondents for a further defense alleged that § 3438 of the Revised Statutes of the state of Nebraska for the year 1913, which attempts to confer the right on landowners under certain circumstances to compel the owners of irrigation canals to build bridges thereover, is unconstitutional, null, and void; that said section deprives the respondent, Farmers Irrigation District, of its property without due process of law and deprives it of equal protection of the laws, and is class legislation in that it purports to require the building of certain bridges only by the owners of irrigation canals, and does not apply to other canals of similar nature carrying water, such as drainage canals and mill races. The case coming to trial, it was ordered by the court that a peremptory writ of mandamus be denied and that the action be dismissed. Appeal was taken to the supreme court of Nebraska, which court reversed the judgment and granted a peremptory writ of mandamus (98 Neb. 239, L.R.A.1915E, 687, 152 N. W. 372), and a writ of error brings the case to this court. This action was brought under the terms of § 3438, Revised Statutes of Nebraska, which reads: 'Any person, company, corporation, or association constructing a ditch or canal through the lands of any person, company, or corporation having no interest in said ditch or canal shall build such ditch or canal in a substantial manner so as to prevent damage to such land; in all cases where necessary for the free and convenient use of lands on both sides of the ditch or canal by the owner or owners of such lands, the owner or those in control of such ditch shall erect substantial and convenient bridges across such canal or ditch, and they shall erect and keep in order suitable gates at the point of entrance and exit of such ditch through any inclosed field.' It appears from a stipulation between the parties to this case that during the year 1906 the Tri-State Land Company was the owner of the lands here involved, and that during that year it constructed this canal over the lands; that afterwards, in 1909, the canal and right of way were conveyed to the Farmers Mutual Canal Company, which company, on the 17th day of December, 1912, conveyed the same to the Farmers Irrigation District; that on April 25, 1910, the Tri-State Land Company conveyed to O'Shea the parcel of land lying north of the canal, and on July 14, 1911, the parcel of land lying south of the canal, and that these are the only conveyances under which O'Shea claims title; that at the times of of these conveyances the canal was fully completed, and had been in operation a number of years, the canal being built 46 feet wide on the bottom with a carrying capacity of at least 7 feet in depth, and constructed by excavating to a depth of about 3 feet in the ground, and with banks above the natural surface of the ground to a height of about 8 feet, with a slope of 1/2 to 1. The district court of Scotts Bluff county, Nebraska, held that the portion of the land occupied by the right of way of the irrigation canal was never owned by Peter O'Shea, and for that reason denied his right to a writ of mandamus. The supreme court of Nebraska held that while the canal was built over the land by the then owner of the land, nevertheless under the statute it was the duty of the present owner of the canal to build the bridge required by the act. The supreme court of the state construed § 3438, Revised Statutes of Nebraska 1913, as applicable to the situation here presented, inasmuch as it applies to 'all cases,' and held that the fact that the Tri-State Land Company, when the canal was constructed, owned the land upon which it was built and on both sides of the canal, did not relieve the Farmers Irrigation District, successor in title to the Tri-State Land Company in the ownership of the canal, from the statutory obligation to build the bridge at the instance of one who subsequently purchased the adjacent lands. There is much discussion of the meaning of the statute in the opinion of the court with which we have nothing to do upon this writ of error. The construction of the state statute by the highest court of the state is conclusive in this court. The questions here to be decided arise under the 14th Amendment to the Federal Constitution, it being contended by the plaintiffs in error that the property of the Farmers' Irrigation District was taken for private use without compensation, and that the statute, as construed by the state court, has the effect to deprive it of the equal protection of the laws. The Farmers Irrigation District is incorporated under a statute (Neb. Laws 1895, pp. 269, 277) which gives it the right to enter upon any land in the district and to locate the line for any canals and necessary branches thereof, and to acquire, either by purchase or condemnation, all lands and waters and other property necessary for the construction, use, maintenance, repair, and improvement of the canals and works, lands for reservoirs for the storage of water. It is also given the statutory authority to acquire by purchase any irrigation ditches, canals, or reservoirs already constructed. The supreme court of Nebraska, construing this statute as imposing the obligation to build bridges for the benefit of adjacent landowners, and reading the same in connection with the authority conferred upon the corporation to exercise the right of eminent domain, held that the company must take the burdens of the legislation with its benefits, and that having by its incorporation accepted the rights conferred under the statute of its creation, it must exercise them within the limitations and upon the conditions therein named. In other words, it was held that the state had said to the corporation of its own creation: 'You may have the right to appropriate property to the public use which you are authorized to serve, but when the canals constructed for that purpose divide land so that it is necessary to connect the several portions thereof by bridges, you shall construct them at your own expense.' It is familiar law that a state may impose conditions, within constitutional limitations, upon the exercise of corporate authority conferred by it. The state was not obliged to confer upon this corporation the sovereign authority to take property by the right of eminent domain. When it did so, we do not think it took the property of the corporation without compensation when it also obliged the latter to comply with the conditions of this grant of power, one of which was that it should construct bridges under the circumstances now presented. Nor do we think it makes any difference that the corporation was not obliged to exercise the power of eminent domain to obtain this particular right of way. This right existed, was conferred by the state, and might be used to construct other portions of the canal for the purposes intended. In this construction and application of the legislation of the state we are unable to find the taking of property without compensation, as is contended by the plaintiffs in error. As to the denial of the equal protection of the laws, this court has frequently held that there is nothing in this provision of the 14th Amendment to prevent the states from reasonable classification of subjects for legislative action. This statute applies equally to all owners of irrigation canals. The fact that it does not embrace canals constructed for other uses and purposes does not make it obnoxious to the equal protection clause of the 14th Amendment. It follows that the judgment of the Supreme Court of Nebraska must be affirmed.

246.US.158

When two States of the Union are separated by a navigable stream, their boundary being described as "a line drawn along the middle of the river," or as "the middle of the main channel of the river," the boundary must be fixed (by the rule of the "thalweg") at the middle of the main navigable channel, so that each State may enjoy an equal right of navigation. Iowa v. Iluinois, 147 U. S.1 . Following this principle, the court holds that the true boundary line between the States of Arkansas and Tennessee is the middle of the main channel of navigation of the Mississippi, as it existed at the Treaty of Peace concluded between the United States and Great Britain in 1783, subject to such changes as have occurred since that time through natural and gradual processes. Certain decisions of the Arkansas and Tennessee courts and acts of the Tennessee legislature, referred to in the opinion, fall short of showing that the States, by practical location and long acquiescence, established the boundary, at the place in dispute, as a line equidistant from the well-defined permanent banks of the river. It is therefore unnecessary to decide whether the supposed agreement between them would be valid without consent of Congress, in view of the third clause of Art. I, § 10, of the Constitution. Where running streams are the boundaries between States, the same rule applies as between private proprietors, namely, that when the bed and channel are changed by the natural and gradual processes known as erosion and accretion, the boundary follows the varying course of the stream; while if the stream from any cause, natural or artificial, suddenly leaves its old bed and forms a new one, by the process known as an avulsion, the resulting change of channel works no change of boundary, which remains in the middle of the old channel, although no water may be flowing in it, and irrespective of subsequent changes in the new channel. This rule applies to a navigable stream between States; the boundary is not changed by an avulsion but remains as it was before, the center line of the old main channel of navigation. The common-law doctrine permitting the private owner of land which has been submerged in the sea to regain it, upon identification after a subsequent reliction, is but an exception to the general rule giving to the sovereign land uncovered by sudden recession of the sea; it has no proper bearing upon the rule stated with reference to boundary streams; and affords no basis for restoring such a boundary, after an avulson, to its pristine location and thus eliminating the shifting effects of erosions and accretions which occurred before the avulsion took place. After an avulsion, so long as the old channel remains a running stream, the boundary marked by it is still subject to be changed by erosion and accietion; but when the water becomes stagnant the effect of these processes is at an end; the boundary then becomes fixed at the middle of the channel, as above defined, and the gradual filling up of the bed that ensues is not to be treated as an accretion to the shores but as an ultimate effect of the avulsion. How the land that emerges on either side of a navigable interstate boundary stream shall be disposed of as between public and private ownership is a matter to be determined according to the law of each State, under the familiar doctrine that it is for the States to establish for themselves such rules of property as they deem expedient with respect to the navigable waters within their borders and the riparian lands adjacent to them, But these dispositions are in each case limited by the interstate boundary, and cannot be permitted to press back the boundary line from where otherwise it should be located. Arkansas is not affected by judicial determinations involving the boundary in cases to which she was not a party. The court will appoint a commission to run, locate and designate the boundary line between the two States at the place in question, in accordance with the principles herein stated. The nature and extent of the erosions and accretions that occurred in the old channel prior to the avulsion here involved, and the question whether it is practicable now to locate accurately the line of the river as it then ran, will be refefred to said commission, subject to a review of its decision by this court if need be.

Concerning the proper location of an interstate boundary line with reference to the shores and channel of a navigable river separating one State of the Union from another, much has been written. The subject was brought under the consideration of this court in Iowa v. Illinois, 147 U. S. 1, 13 Sup. Ct. 239, 37 L. Ed. 55. In that case, Illinois contended that the boundary followed the middle of the channel of commerce, that is, the channel commonly used by steamboats and other craft navigating the river; while on the part of Iowa it was insisted that the line ran in the middle of the main body of the river, taking the middle line between its banks or shores, irrespective of where the channel of commerce might be, and that the measurements must be taken at ordinary stage of water. The contention of each State was supported by a decision of its court of last resort: Dunlieth & Dubuque Bridge Co. v. County of Dubuque, 55 Iowa, 558, 565, 8 N. W. 443; Buttenuth v. St. Louis Bridge Co., 123 Ill. 535, 548, 17 N. E. 439, 5 Am. St. Rep. 545. This court recognized these cases as presenting in the clearest terms the different views as to the line of jurisdiction between neighboring States separated by a navigable stream, and thereupon proceeded to analyze their reasoning and doctrine. From a review of the authorities upon international law, it was declared that when a navigable river constituted the boundary between two independent States the interest of each State in the navigation, and the preservation by each of its equal right in such navigation, required that the middle of the channel should mark the boundary up to which each State on its side should exercise jurisdiction; that hence, in international law, and by the usage of European nations, the term 'middle of the stream,' as applied to a navigable river, meant the middle of the channel of such stream, and that in this sense the terms were used in the treaty between Great Britain, France, and Spain, concluded at Paris in 1763, so that by the language 'a line drawn along the middle of the River Mississippi,' as there sed, the middle of the channel was indicated; that the thalweg, or middle of the navigable channel, is to be taken as the true boundary line between independent States for reasons growing out of the right of navigation, in the absence of a special convention between the States or long use equivalent thereto; and that although the reason and necessity of the rule may not be as cogent in this country, where neighboring States are under the same general government, yet the same rule must be held to obtain unless changed by statute or usage of so great a length of time as to have acquired the force of law; and that the Illinois Enabling Act of April 18, 1818 (3 Stat. 428, ch. 67, § 2), which made 'the middle of the Mississippi river' the western boundary of the State, the Missouri Enabling Act of March 6, 1820 (3 Stat. 545, ch. 22, § 2), which adopted 'the middle of the main channel of the Mississippi river' as the eastern boundary of that State, and the Wisconsin Enabling Act of August 6, 1846 (9 Stat. 56, ch. 89), which referred to 'the center of the main channel of that river,' employed these varying phrases as signifying the same thing. Hence we reached the conclusion (147 U. S. p. 13, 13 Sup. Ct. 239, 37 L. Ed. 55) that as between the different views as to the line of jurisdiction between neighboring States, separated by a navigable stream, the controlling consideration 'is that which preserves to each State equality in the right of navigation in the river.' It was accordingly adjudged and declared that the boundary line between the contesting States was 'the middle of the main navigable channel of the Mississippi river'; and a final decree to that effect was afterwards made. 202 U. S. 59, 26 Sup. Ct. 571, 50 L. Ed. 934. The rule thus adopted, known as the rule of the 'thalweg,' has been treated as set at rest by that decision. Louisiana v. Mississippi, 202 U. S. 1, 49, 26 Sup. Ct. 408, 571, 50 L. Ed. 913; Washington v. Oregon, 211 U. S. 127, 134, 29 Sup. Ct. 47, 53 L. Ed. 118; 214 U. S. 205, 215, 29 Sup. Ct. 631, 53 L. Ed. 969. The argument submitted in behalf of the defendant State in the case at bar, including a reference to the notable recent decision of its Supreme Court in State v. Pulp Co. (1907) 119 Tenn. 47, 104 S. W. 437, has failed to convince us that this rule ought now, after the lapse of twenty-five years, to be departed from. It is said that Arkansas has interpreted the line to be at a point equidistant from the well-defined and permanent banks of the river, that Tennessee likewise has recognized this boundary, and that by long acquiescence on the part of both States in this construction, and the exercise of jurisdiction by both in accordance therewith, the question should be treated as settled. The reference is to certain judicial decisions, and two acts of legislation. In Cessill v. State (1883) 40 Ark. 501, which was a prosecution for unlicensed sale of liquors upon a boat anchored off the Arkansas shore, it was held that the boundary line, as established by the original treaties and since observed in federal legislation, state constitutions, and judicial decisions was the 'line along the river bed equidistant from the permanent and defined banks of the ascertained channel on either side.' This was followed in subsequent decisions by the same court. Wolfe v. State (1912) 104 Ark. 140, 143, 148 S. W. 641; Kinnanne v. State (1913) 106 Ark. 286, 290, 153 S. W. 262. The first pertinent decision by the Supreme Court of Tennessee is State v. Pulp Co. (1907) 119 Tenn. 47, 104 S. W. 437, in which a similar conclusion was reached, partly upon the ground that it had been adopted by the courts of Arkansas. The legislative action referred to consists of two acts of the General Assembly of the State of Tennessee (Acts 1903, p. 1215, ch. 420; Acts 1907, p. 1723, ch. 516), each of which authorized the appointment of a commission to confer and act with a like commission representing the State of Arkansas to locate the line between the States in the old and abandoned ch nnel at the place that we now have under consideration; and the Act of 1907 further provided that if Arkansas should fail to appoint a commission, the Attorney General of Tennessee should be authorized to institute a suit against that State in this court to establish and locate the boundary line. These acts, far from treating the boundary as a line settled and acquiesced in, treat it as a matter requiring to be definitely settled, with the co-operation of representatives of the sister State if practicable, otherwise by appropriate litigation. The Arkansas decisions had for their object the establishment of a proper rule for the administration of the criminal laws of the State, and were entirely independent of any action taken or proposed by the authorities of the State of Tennessee. They had no particular reference to that part of the river bed that was abandoned as the result of the avulsion of 1876; on the contrary, they dealt with parts of the river where the water still flowed in its ancient channel. The decision of the Supreme Court of Tennessee in State v. Pulp Co., 119 Tenn. 47, 104 S. W. 437, sustained the claim of the State to a part of the abandoned river bed which, by the rule of the thalweg, would be without that State. The combined effect of these decisions and of the legislation referred to, all of which were subsequent to the year 1876, falls far short of that long acquiescence in the practical location of a common boundary, and possession in accordance therewith, which in some of the cases has been treated as an aid in setting the question at rest. Rhode Island v. Massachusetts, 4 How. 591, 638, 639, 11 L. Ed. 1116; Indiana v. Kentucky, 136 U. S. 479, 510, 514, 518, 10 Sup. Ct. 1051, 34 L. Ed. 329; Virginia v. Tennessee, 148 U. S. 503, 522, 13 Sup. Ct. 728, 37 L. Ed. 537; Louisiana v. Mississippi, 202 U. S. 1, 53, 26 Sup. Ct. 408, 571, 50 L. Ed. 913; Maryland v. West Virginia, 217 U. S. 1, 41, 30 Sup. Ct. 268, 54 L. Ed. 645. Therefore we find it unnecessary to decide whether the supposed agreement between the States respecting the boundary would be valid without the consent of Congress, in view of the third clause of section 10 of article 1 of the Constitution of the United States. The next and perhaps the most important question is as to the effect of the sudden and violent change in the channel of the river that occurred in the year 1876, and which both parties properly treat as a true and typical avulsion. It is settled beyond the possibility of dispute that where running streams are the boundaries between States, the same rule applies as between private proprietors, namely, that when the bed and channel are changed by the natural and gradual processes known as erosion and accretion, the boundary follows the varying course of the stream; while if the stream from any cause, natural or artificial, suddenly leaves its old bed and forms a new one, by the process known as an avulsion, the resulting change of channel works no change of boundary, which remains in the middle of the old channel, although no water may be flowing in it, and irrespective of subsequent changes in the new channel. New Orleans v. United States, 10 Pet. 662, 717, 9 L. Ed. 573; Jefferis v. East Omaha Land Co., 134 U. S. 178, 189, 10 Sup. Ct. 518, 33 L. Ed. 872; Nebraska v. Iowa, 143 U. S. 359, 361, 367, 370, 12 Sup. Ct. 396, 36 L. Ed. 186; Missouri v. Nebraska, 196 U. S. 23, 34-36, 25 Sup. Ct. 155, 49 L. Ed. 372. There is controversy with respect to the application of the foregoing rule to the particular circumstances of this case. It is insisted in behalf of the State of Tennessee that since the rule of the thalweg derives its origin from the equal rights of the respective States in the navigation of the river, the reason for the rule and therefore the rule itself ceases when navigation has been rendered impossible by the abandonment of a portion of the river bed as the result of an avulsion. In support of this contention we are referred to some expressions of Vattel, Almeda, M ore, and other writers; but we deem theminconclusive, and are of the opinion, on the contrary, that the contention runs counter to the settled rule and is inconsistent with the declarations of this court, in Nebraska v. Iowa, 143 U. S. 359, 367, 12 Sup. Ct. 396, 399 (36 L. Ed. 186), that 'avulsion would establish a fixed boundary, to wit: the center of the abandoned channel,' or, as it is expressed on page 370 of 143 U. S., on page 400 of 12 Sup. Ct. (36 L. Ed. 186), 'the boundary was not changed, and it remained as it was prior to the avulsion, the center line of the old channel,' and in Missouri v. Nebraska, 196 U. S. 23, 36, 25 Sup. Ct. 155, 158 (49 L. Ed. 372) that the boundary line 'must be taken to be the middle of the channel of the river as it was prior to such avulsion.' It is contended, further, that since the avulsion of 1876 caused the old river bed to dry up, what is called 'the doctrine of the submergence and reappearance of land' must be applied, so as to establish the ancient boundary as it existed at the time of the earliest record, in this case the year 1823, with the effect of eliminating any shifting of the river bed that resulted from the erosions and accretions of the half century preceding the avulsion. This contention is rested chiefly upon a quotation from Sir Matthew Hale, De Jure Maris, chap. 4: 'If a subject hath land adjoining the sea, and the violence of the sea swallow it up, but so that yet there be reasonable marks to continue the notice of it; or though the marks be defaced; yet if by situation and extent of quantity, and bounding upon the firm land, the same can be known, though the sea leave this land again, or it be by art or industry regained, the subject doth not lose his propriety; and accordingly it was held by Cooke and Foster, M. 7 Jac. C. B., though the inundation continue forty years.' 1 Hargraves' Law Tracts, 15; Note to Ex parte Jennings, 6 Cow. (N. Y.) 542, 16 Am. Dec. 447. To the same effect, 2 Roll. Abr. 168, 1. 48; 6 Comyns' Dig., tit. Prerogative, D. 61, 62; 5 Bacon's Abr., tit. Prerogative, B. 1. A reference to the context shows that the portion quoted is a statement of one of several exceptions to the general rule that any increase of land per relictionem, or sudden recession of the sea, belonged of common right to the King as a part of his prerogative. It amounts to no more than saying that where the reliction did but restore that which before had been private property and had been lost through the violence of the sea, the private right should be restored if the land is capable of identification. Such a case was Mulry v. Norton, 100 N. Y. 424, 3 N. E. 581, 53 Am. Rep. 206, the true scope of which decision was pointed out in In re City of Buffalo, 206 N. Y. 319, 326, 327, 99 N. E. 850. But this doctrine has no proper bearing upon the rule we have stated with reference to boundary streams. Certainly it cannot be regarded as having the effect of carving out an exception to the rule that where the course of the stream changes through the operation of the natural and gradual processes of erosion and accretion, the boundary follows the stream; while if the stream leaves its former bed and establishes a new one as the result of an avulsion, the boundary remains in the middle of the former channel. An avulsion has this effect, whether it results in the drying up of the old channel or not. So long as that channel remains a running stream, the boundary marked by it is still subject to be changed by erosion and accretion; but when the water becomes stagnant, the effect of these processes is at an end; the boundary then becomes fixed in the middle of the channel as we have defined it, and the gradual filling up of the bed that ensues is not to be treated as an accretion to the shores but as an ultimate effect of the avulsion. The emergence of the land, however, may or may not follow, and it ought not in reason to have any controlling effect upon the location of the boundary line in the old channel. To give to it such an effect is we think, to misapply the rule quoted from Sir Matthew Hale. How the land that emerges on either side of an interstate boundary stream shall be disposed of as between public and private ownership is a matter to be determined according to the law of each State, under the familiar doctrine that it is for the States to establish for themselves such rules of property as they deem expedient with respect to the navigable waters within their borders and the riparian lands adjacent to them. Pollard's Lessee v. Hagan, 3 How. 212, 230, 11 L. Ed. 565; Barney v. Keokuk, 94 U. S. 324, 338, 24 L. Ed. 224; Hardin v. Jordan, 140 U. S. 371, 382, 11 Sup. Ct. 808, 838, 35 L. Ed. 428; Shively v. Bowlby, 152 U. S. 1, 40, 58, 14 Sup. Ct. 548, 38 L. Ed. 331; St. Anthony Water Falls Power Co. v. Water Com'rs, 168 U. S. 349, 358, 18 Sup. Ct. 157, 42 L. Ed. 497; Scott v. Lattig, 227 U. S. 229, 242, 33 Sup. Ct. 242, 57 L. Ed. 490, 44 L. R. A. (N. S.) 107. Thus Arkansas may limit riparian ownership by the ordinary high-water mark (Railway v. Ramsey, 53 Ark. 314, 323, 13 S. W. 931, 8 L. R. A. 559, 22 Am. St. Rep. 195; Wallace v. Driver, 61 Ark. 429, 435, 436, 33 S. W. 641, 31 L. R. A. 317); and Tennessee, while extending riparian ownership upon navigable streams to ordinary low-water mark, and reserving as public the lands constituting the bed below that mark (Elder v. Burrus, 25 Tenn. [6 Humph.] 358, 368; Martin v. Nance, 40 Tenn. [3 Head] 649, 650; Goodwin v. Thompson, 83 Tenn. [15 Lea] 209, 54 Am. Rep. 410), may, in the case of an avulsion followed by a drying up of the old channel of the river, recognize the right of former riparian owners to be restored to that which they have lost through gradual erosions in times preceding the avulsion, as she has done in State v. Pulp Co., 119 Tenn. 47, 104 S. W. 437. But these dispositions are in each case limited by the interstate boundary, and cannot be permitted to press back the boundary line from where otherwise it should be located. It is hardly necessary to say that State v. Pulp Co., supra, and Stockley v. Cissna, 119 Fed. 812, 56 C. C. A. 324, relied upon in defendant's answer as judicial determinations of the boundary line, can have no such effect against the State of Arkansas, which was a stranger to the record in both cases. Upon the whole case we conclude that the questions submitted for our determination are to be answered as follows: (1) The true boundary line between the States, aside from the question of the avulsion of 1876, is the middle of the main channel of navigation as it existed at the Treaty of Peace concluded between the United States and Great Britain in 1783, subject to such changes as have occurred since that time through natural and gradual processes. (2) By the avulsion of 1876 the boundary line between the States was unaffected, and remained in the middle of the former main channel of navigation, as above defined. (3) The boundary line should now be located according to the middle of that channel as it was at the time the current ceased to flow therein as a result of the avulsion of 1876. (4) A commission consisting of three competent persons, to be named by the court upon the suggestion of counsel, will be appointed to run, locate, and designate the boundary line between the States at the place in question in accordance with the above principles. (5) The nature and extent of the erosions and accretions that occurred in the old channel prior to its abandonment by the current as a result of the avulsion of 1876, and the question whether it is practicable now to locate accurately the line of the river as it then ran, will be referred to said commission, subject to a review of its decision by this court if need be. The parties may submit the form of an interlocutory decree to carry into effect the above conclusions.

242.US.539

The Ohio "Blue Sky Law," Supplement to Page & Adams' Ann. Gen. Code of Ohio, 1916, vol. 2, §§ 6373-1 to 6373-24, examined as to its constitutionality and upheld. In the exercise of the power to prevent fraud and imposition, Hutchinson Ice Cream Co. v. Iowa, ante, 153, a State may forbid dealing in stocks and other securities within its borders without a license, and subject the business to executive supervision. The liability of a business to regulation is not necessarily dependent upon its liability to be abolished under the police power. Under the so-called "Blue Sky Law" of Ohio, dealers within its provisions (including companies floating their own issues) are not licensed to sell stocks and other securities unless an executive officer designated is satisfied of the good business repute of the applicants and their agents, and licenses, when issued, may be revoked by him upon ascertaining that the licensees are of bad business repute, have violated any provision of the act, or have engaged, or are about to engage, under favor of their licenses, in illegitimate business or fraudulent transactions; his findings, however, are made subject to judicial review. Held, that the powers thus conferred are not arbitrary but consistent with due process under the Fourteenth Amendment. Gundling v. Chicago, 177 U. S. 183. The fact that the statute designates a particular court to review the executive findings does not affect its validity. It is to be presumed that the executive officer will act properly in the public interest, and not wantonly or arbitrarily. Whether there is a constitutional liberty to buy securities on one's own judgment of value without governmental interposition to protect from bad bargains-will not be determined at the suit of parties whose rights are involved only from the standpoint of sellers; but Qwxre: Whether the state power does not extend to such guardianship over buyers. The equal protection clause of the Fourteenth Amendment leaves the States at liberty to regulate those activities which they deem conspicuous sources of existing evils, without embracing others which, but for this distinction, would fall in the same class. A state law designed to prevent fraud in the selling of securities, which affects securities coming from other States only in requiring that persons dealing in them within the State shall be first licensed, shall file information concerning them and be subject in such dealing to executive supervision, is not invalid as a direct burden on interstate commerce. Qucre: As to when and under what circumstances securities transported into a State may be held to have lost their interstate character? 230 Fed. Rep. 233, reversed.

It will be observed that these cases bring here for judgment an asserted conflict between national power and state power, and bring, besides, power of the state as limited or forbidden by the national Constitution. The assertion of such conflict and limitation is an ever-recurring one; and yet it is approached as if it were a new thing under the sun. The primary postulate of the state is that the law under review is an exercise of the police power of the state, and that power, we have said, is the least limitable of the exercises of government. Sligh v. Kirkwood, 237 U. S. 52, 59 L. ed. 835, 35 Sup. Ct. Rep. 501. We get no accurate idea of its limitations by opposing to it the declarations of the 14th Amendment that no person shall be deprived of his life, liberty, or property without due process of law, or denied the equal protection of the laws. Noble State Bank v. Haskell, 219 U. S. 104, 110, 55 L. ed. 112, 116, 32 L.R.A.(N.S.) 1062, 31 Sup. Ct. Rep. 186, Ann. Cas. 1912A, 487. A stricter inquiry is necessary, and we must consider what it is of life, liberty, and property that the Constitution protects. What life is and what may or may not affect it, we have quite accurate tests; and what liverty is in its outside sense, and, in like sense, what property is. We know that it is of the essence of liberty—indeed, we may say, of life—that there shall be freedom of conduct, and yet there may be limitations upon such freedom. We know that, in the concept of property, there are the rights of its acquisition, disposition, and enjoyment,—in a word, dominion over it. Yet all of these rights may be regulated. Such are the declarations of the cases, become platitudes by frequent repetition and many instances of application. The question, then, is, Is the statute of Ohio within the principles declared? The statute is a restraint upon the disposition of certain property, and requires dealers in securities evidencing title to or interest in such property to obtain a license,—a requirement simple enough in itself, and yet of itself asserted to be an illegal control of a private business, made especially so by the conditions which are imposed. These conditions, summarized, are as follows: To obtain the license there must be filed with the superintendent of banks and banking (termed in the act 'commissioner') application for such license, together with information in such form as the commissioner shall determine, setting forth: '(a) The names and addresses of the directors and officers if such applicant be a corporation or association, and of all partners if it be a partnership, and of the person if the applicant be an individual, together with names and addresses of all agents of such applicant assisting in the disposal of such securities; '(b) Location of the applicant's principal office and of his principal office in the state, if any; '(c) The general plan and character of the business of said applicant, together with references which the 'commissioner' shall confirm by such investigation as he may deem necessary, establishing the good repute in business of such applicant, directors, officers, partners, and agents. 'If the applicant be a corporation organized under the laws of any other state, territory, or government, or have its principal place of business therein, it shall also file a copy of its articles of incorporation, certified by the proper officer of such state, territory, or government, and of its regulations and by-laws; and if it be an unincorporated association, a certified copy of its articles of association, or deed of settlement.' The applicant is alos required to file a written instrument irrevocably consenting to be sued in a particular county, and, if personal service there cannot be had, consenting to service upon the sheriff of the county. It is also provided that all of the applications shall be published in a daily newspaper, and if the commissioner be satisfied that the applicant is of good repute, he shall, upon payment of certain fees, register the applicant as a licensed dealer in securities. Pending disposition of the application, temporary permission to transact business may be given. Yearly renewals of the licenses are provided for. The commissioner may revoke a license upon ascertaining that the licensee: (a) Is of bad repute; (b) has violated any provision of the act; or (c) has engaged, or is about to engage, under favor of such license, in illegitimate business or fraudulent transactions. It will be observed, therefore, that the law is a regulation of business, constrains conduct only to that end, the purpose being to protect the public against the imposition of unsubstantial schemes and the securities based upon them. Whatever prohibition there is, is a means to the same purpose, made necessary, it may be supposed, by the persistence of evil and its insidious forms and the experience of the inadequacy of penalties or other repressive measures. The name that is given to the law indicates the evil at which it is aimed; that is, to use the language of a cited case, 'speculative schemes which have no more basis than so many feet of 'blue sky;" or, as stated by counsel in another case, 'to stop the sale of stock in fly-by-night concerns, visionary oil wells, distant gold mines, and other like fraudulent exploitations.' Even if the descriptions be regarded as rhetorical, the existence of evil is indicated, and a belief of its detriment; and we shall not pause to do more than state that the prevention of deception is within the competency of government, and that the appreciation of the consequences of it is not open for our review. Trading Stamp Cases, Rast v. Van Deman & L. Co. 240 U. S. 342, 60 L. ed. 679, L.R.A.1917A, 421, 36 Sup. Ct. Rep. 370; Tanner v. Little, 240 U. S. 369, 60 L. ed. 691, 36 Sup. Ct. Rep. 379; Pitney v. Washington, 240 U. S. 387, 391, 60 L. ed. 703, 706, 36 Sup. Ct. Rep. 385. Therefore, the purpose being legal, the question only remains whether the manner in which it is accomplished is illegal. This is contended, and the provisions which render the law void are found, it is stated, in: (1) Power conferred upon the commissioner to grant or refuse licenses; (2) the authority given the commissioner to place forbidden restrictions and burdens on the conduct of the business of one who has obtained a license. The basis of these contentions is that the law confers arbitrary power upon the commissioner. In considering the contentions we must keep in mind that the law is addressed to a complex situation. Its purpose is, as we have seen, to give a basis for judgment of the securities offered the purchasing public; assure credit where it is deserved and confidence to investment and trading; prevent deception and save credulity and ignorance from imposition, as far as this can be done by the approved reputation of the seller of the securities and authoritative information. It may, however, be said that character establishes itself, and neither needs nor can be compelled to accept the stamp of government; and it is asserted that the 'normal investment business of the country' and its 'individual transactions' are not subject to 'executive control,'—the broad contention being made that, as such business cannot be prohibited, it cannot be regulated. This, indeed, is the basic principle of the opposition to the statute. It is expressed in many ways, and the various provisions of the statute—those that are explicit in direction to the commissioner and those that commit discretion to him—are said to so burden and complicate 'normal business as to make it difficult, if not impossible, to carry it on in a normal way, if at all.' As broadly made, we cannot assent to these propositions. The reason and extent of the law we have indicated and the control to which individual transactions are subjected, and we think both are within the competency of the state. It is to be remembered that the value of securities consists in what they represent, and to determine such value is a complex problem even to the most skilful and informed. We have very lately decided a case upon the principle of the power of the state to prevent frauds and impositions. Hutchinson Ice Cream Co. v. Iowa, 242 U. S. 153, 61 L. ed. 217, 37 Sup. Ct. Rep. 28. The principle applies as well to securities as to material products, the provisions of the law necessarily varying with the objects. As to material products the purpose may be accomplished by a requirement of inherent purity. The intangibility of securities, they being representatives or purporting to be representatives of something else, of property, it may be, in distant states and countries, schemes of plausible pretensions, requires a difference of provision, and the integrity of the securities can only be assured by the probity of the dealers in them and the information which may be given of them. This assurance the state has deemed necessary for its welfare to require; and the requirement is not unreasonable or inappropriate. It extends to the general market something of the safeguards that are given to trading upon the exchanges and stock boards of the country,—safeguards that experience has adopted as advantageous. Inconvenience may be caused and supervision and surveillance, but this must yield to the public welfare; and against counsel's alarm of consequences, we set the judgment of the state. We turn back, therefore, to consider the more specific objections to the law. The basis of them is, as we have seen, the power conferred upon the commissioner, which is asserted to be arbitrary. The objection is somewhat difficult to handle. It centers in the provision that requires the commissioner, as a condition of a license, 'to be satisfied of the good repute in business of such applicant and named agents,' and in the power given him to revoke the license or refuse to renew it upon ascertaining that the licensee 'is of bad business repute, has violated any provision of the act, or has engaged or is about to engage, under favor of such license, in illegitimate business or fraudulent transactions.' It is especially objected that, as to these requirements, no standard is given to guide or determine the decision of the commissioner. Therefore, it is contended that the discretion thus vested in the commissioner leaves "room for the play and action of purely personal and arbitrary power." We are a little surprised that it should be implied that there is anything recondite in a business reputation or its existence as a fact which should require much investigation. If in special cases there may be controversy, those cases the statute takes care of; an adverse judgment by the commissioner is reviewable by the courts. § 6373-8. So also as to the other judgments. Besides, it is certainly apparent that, if the conditions are within the power of the state to impose, they can only be ascertained by an executive officer. Reputation and character are quite tangible attributes, but there can be no legislative definition of them that can automatically attach to or identify individuals possessing them, and necessarily the aid of some executive agency must be invoked. The contention of appellees would take from government one of its most essential instrumentalities, of which the various national and state commissions are instances. But the contention may be answered by authority. In Gundling v. Chicago, 177 U. S. 183, 44 L. ed. 725, 20 Sup. Ct. Rep. 633, an ordinance of the city of Chicago was passed on which required a license of dealers in cigarettes, and, as a condition of the license, that the applicant, if a single individual, all of the members of the firm, if a copartnership, and any person or persons in charge of the business, if a corporation, should be of good character and reputation, and the duty was delegated to the mayor of the city to determine the existence of the conditions. The ordinance was sustained. To this case may be added Red 'C' Oil Mfg. Co. v. Board of Agriculture, 222 U. S. 380, 394, 56 L. ed. 240, 245, 32 Sup. Ct. Rep. 152, and cases cited; Mutual Film Corp. v. Industrial Commission, 236 U. S. 230, 59 L. ed. 552, 35 Sup. Ct. Rep. 387, Ann Cas. 1916C, 296; Brazee v. Michigan, 241 U. S. 340, 341, 60 L. ed. 1034, 1035, 36 Sup. Ct. Rep. 561. See also Reetz v. Michigan, 188 U. S. 505, 47 L. ed. 563, 23 Sup. Ct. Rep. 390; New York ex rel. Lieberman v. Van De Carr, 199 U. S. 552, 50 L. ed. 305, 26 Sup. Ct. Rep. 144. The discretion of the commissioner is qualified by his duty, and besides, as we have seen, the statute gives judicial review of his action. Pending such review, we must accord to the commissioner a proper sense of duty and the presumption that the functions intrusted to him will be executed in the public interest, not wantonly or arbitrarily to deny a license to or take one away from a reputable dealer. (Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 545, 58 L. ed. 713, 719, 34 Sup. Ct. Rep. 359); and, as we have said, in cases where there can be a dispute of fact, the statute provides for judicial review, and we see no legal objection to the designation of a particular court for such review. We are not disposed to give serious attention to the contention that while the statute in form prohibits sales, 'it at the same time necessarily prevents purchases, and thereby shields contemplated purchasers from loss of property by the exercise of their own 'defective judgment,' and puts them as well as the sellers under guardianship. If we may suppose that such purchasers would assert a liberty to form a 'defective judgment,' and resent means of information as a limitation of their freedom, we must wait until they themselves appear to do so. Besides, there are examples in legislation of unsolicited protection, and there is much in the business we are considering which urges to an imitation of the examples. It is not wise to put out of view the tendencies of the business, and that it tempts to and facilitates speculative judgments, if the purpose be trading, improvident judgments, if the purpose be investment. Whatever detriment may come from such judgments the law may be powerless to prevent; but against counterfeits of value the law can give protection, and such is the purpose of the statute under review. It must be judged of upon that consideration, not upon the assertion of an absolute liberty of conduct which does not exist. Discriminations are asserted against the statute which extend, it is contended, to denying appellees the equal protection of the laws. Counsel enumerates them as follows: 'Prominent among such discriminations are between the cases where more or less than 50 per cent of an issue of bonds is included in the sale to one person; between securities which have and which have not been authorized by the Public Service Commission of this state; between the securities issued by a bank, trust company, a building and loan association organized under the laws of this state and those which are not; between an owner who sells his securities in a single transaction and one who disposes of them in successive transactions; between a bank or trust company who sells at a commission of not more than 2 per cent and one which sells at a higher commission; against securities when any part of the proceeds to be derived from the sale are to be applied in payment for patents, services, good will, or for property not located in this state; in providing for such delays in the issuance of a license and in the subsequent conduct of business thereunder as to substantially hinder, and in many cases naturally arising, to utterly prevent sales; in discriminating between securities which have and which have not been published in regular market reports; between sales where, in a single transaction, the sale is for $5,000 or more; in discriminations against securities issued by taxing subdivisions of other states; between securities upon which there has and has not been a default as to principal or interest; against securities which have not from time to time for six months been published in the regular market reports or the news columns of a daily newspaper of general circulation in the state; where the securities are or are not of manufacturing or transportation companies in the hands of bona fide purchasers prior to March 1st, 1914, where such companies were on that date, and shall be at the time of the proposed sale, going concerns; between cases where the information contemplated is or is not contained in a standard manual of information approved by the commissioner; where the disposal is or is not made for a commission of less than 1 per cent of the par value thereof by a licensee who is a member of a regularly organized and recognized stock exchange and who has an established and lawfully conducted business in this state, regularly open for public patronage as such; between cases in which the vendor proposes to sell securities for which he has and those for which he has not paid 90 per cent of the price at which they are to be sold by him; where the securities are or are not those of a common carrier or of a company organized under the laws of this state and engaged principally in the business of manugacturing, transportation, etc., and the whole or a part of the property upon which such securities are predicated are located within this state.' We cannot give separate attention to the asserted discriminations. It is enough to say that they are within the power of classification which a state has. A state 'may direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses, and it may do so none the less that the forbidden act does not differ in kind from those that are allowed. . . . If a class is deemed to present a conspicuous example of what the legislature seeks to prevent, the 14th Amendment allows it to be dealt with although otherwise and merely logically not distinguishable from others not embraced in the law.' Central Lumber Co. v. South Dakota, 226 U. S. 157, 160, 57 L. ed. 164, 169, 33 Sup. Ct. Rep. 66. The cases were cited from which those propositions were deduced. To the same effect is Armour & Co. v. North Dakota, 240 U. S. 517, 60 L. ed. 776, 36 Sup. Ct. Rep. 440, Ann. Cas. 1916D, 548. The next contention of appellees is that the law under review is a burden on interstate commerce, and therefore contravenes the commerce clause of the Constitution of the United States. There is no doubt of the supremacy of the national power over interstate commerce. Its inaction, it is true, may imply prohibition of state legislation, but it may imply permission of such legislation. In other words, the burden of the legislation, if it be a burden, may be indirect and valid in the absence of the assertion of the national power. So much is a truism; there can only be controversy about its application. The language of the statute is: 'Except as otherwise provided in this act, no dealer shall, within this state, dispose' of certain securities 'issued or executed by any private or quasi public corporation, copartnership or association (except corporations not for profit) . . . without first being licensed so to do as hereinafter provided.' The provisions of the law, it will be observed, apply to dispositions of securities within the state, and while information of those issued in other states and foreign countries is required to be filed (§ 6373-9), they are only affected by the requirement of a license of one who deals in them within the state. Upon their transportation into the state there is no impediment,—no regulation of them or interference with them after they get there. There is the exaction only that he who disposes of them there shall be licensed to do so, and this only that they may not appear in false character and impose an appearance of a value which they may possess,—and this certainly is only an indirect burden upon them as objects of interstate commerce, if they may be regarded as such. It is a police regulation strictly, not affecting them until there is an attempt to make disposition of them within the state. To give them more immunity than this is to give them more immunity than more tangible articles are given, they having no exemption from regulations the purpose of which is to prevent fraud or deception. Such regulations affect interstate commerce in them only incidentally. New York ex rel. Hatch v. Reardon, 204 U. S. 152, 51 L. ed. 415, 27 Sup. Ct. Rep. 188, 9 Ann. Cas. 736; Ware & Leland v. Mobile County, 209 U. S. 405, 52 L. ed. 855, 28 Sup. Ct. Rep. 526, 14 Ann. Cas. 1031; Engel v. O'Malley, 219 U. S. 128, 55 L. ed. 128, 31 Sup. Ct. Rep. 190; Brodnax v. Missouri, 219 U. S. 285, 55 L. ed. 219, 31 Sup. Ct. Rep. 238; Banker Bros. Co. v. Pennsylvania, 222 U. S. 210, 56 L. ed. 168, 32 Sup. Ct. Rep. 38; Savage v. Jones, 225 U. S. 501, 56 L. ed. 1182, 32 Sup. Ct. Rep. 715; Standard Stock Food Co. v. Wright, 225 U. S. 540, 56 L. ed. 1197, 32 Sup. Ct. Rep. 784; Trading Stamp Cases, supra. With these cases International Textbook Co. v. Pigg, 217 U. S. 91, 54 L. ed. 678, 27 L.R.A.(N.S.) 493, 30 Sup. Ct. Rep. 481, 18 Ann. Cas. 1103; Buck Stove & Range Co. v. Vickers, 226 U. S. 205, 57 L. ed. 189, 33 Sup. Ct. Rep. 41, and the Lottery Case (Champion v. Ames) 188 U. S. 321, 47 L. ed. 492, 23 Sup. Ct. Rep. 321, 13 Am. Crim. Rep. 561, are not in discordance. We might, indeed, ask, When do the designated securities cease migration in interstate commerce and settle to the jurisdiction of the state? Material things, choses in possession, pass out of interstate commerce when they emerge from the original package. Do choses in action have a longer immunity? It is to be remembered that though they may differ in manner of transfer, they are in the same form in the hands of the purchaser as they are in the hands of the seller, and in the hands of both as they are brought into the state. We ask again, Do they never pass out of interstate commerce? Have they always the freedom of the state? Is there no point of time at which the state can expose the evil that they may mask? Is anything more necessary for the supremacy of the national power than that they be kept free when in actual transportation, subjected to the jurisdiction of the state only when they are attempted to be sold to the individual purchaser? The questions are pertinent, the answer to them one way or the other, of consequence; but we may pass them, for, regarding the securities as still in interstate commerce after their transportation to the state is ended and they have reached the hands of dealers in them, their interstate character is only incidentally affected by the statute. Decree reversed and the cause remanded for further proceedings in conformity with this opinion. Mr. Justice McReynolds dissents.

246.US.391

Money placed in a bank as special deposits, pursuant to orders of the District Court and stipulation of parties, to await the outcome of litigation, held subject to assessment for taxation as money in litigation in possession of a "receiver," under Political Code of California, § 3647. Such special deposits are sufficiently described for purposes of assessment by the numbers of the several cases in which they were made and by designating the court and the parties; and the facts that the deposit in each case was not assessed separately, and that the description included also a case in which there was no deposit, do not vitiate the assessment. 225 Fed. Rep. 728, affnrmed.

The sole ground urged for reversal is the invalidity of the assessment (a) because it was not authorized by any statute of the state, and (b) because it did not contain a sufficient description of the property assessed, and we come to consider these objections under two headings. 1. That the assessment was authorized by the following section of the Political Code of California we think is clear: 'Section 3647. Property and money in litigation. Money and property in litigation in possession of a county treasurer, of a court, county clerk, or receiver, must be assessed to such treasurer, clerk, or receiver, and the taxes be paid thereon under the direction of the court.' Without following and directly answering the argument advanced to sustain the contrary view, we content ourselves with a summary statement of the reasons for our conclusion. Words cannot make clearer than does the language of the text the purpose of the section to tax property or money in litigation in the hands of a court. Indeed the Supreme Court of California has so construed the section. Los Angeles v. Los Angeles City Water Co., 137 Cal. 699, 70 Pac. 770; Bessolo v. City of Los Angeles, 169 Pac. (Cal.) 372. It is further manifest that the taxation of the money deposited in the injunction suits was what was sought to be accomplished by the assessment which was made. The money assessed was in litigation, was in the custody of the court and was by its direction placed in the bank in a special account subject to the control of the court. Moreover the assessment to the bank which held the money for the court was a direct compliance with the terms of the section, the description 'receiver' being employed in the statute not in a technical sense but as embracing any person acting as agent or depository of funds for a court. To give to the word the narrower meaning contended for would defeat the obvious and adjudged purpose of the statute. (b) It is contended that the assessment was invalid for want of sufficient description of the property assessed, first, because the assessment purported to assess moneys impounded in the 1907 injunction suit, No. 14275, when as we have seen no money was in fact deposited in that suit, and second, because the assessment did not separately assess the moneys impounded in each of the six suits but assessed as a unit all the moneys impounded in all the suits. As to the first, it is apparent that the inclusion of the 1907 suit, No. 14275, could not operate to assess moneys which had no existence and hence the reference to that suit is wholly negli ible. As to the second, the assessment referred to the cases by mumber and designated the court in which they were pending as well as the parties. The court in exercising its jurisdiction over the moneys had specifically directed their deposit to special accounts in each suit separately, thus enabling it at the termination of the litigation to distribute the funds after apportioning the sum of the tax chargeable to each. It is thus clear that not only was there no want of definiteness in the description of the property but no possible detriment to the Water Company could in any event arise because of the method of assessment which was followed. Affirmed.

243.US.563

Where the answer in a state condemnation case attacked the taking as a taking for private use in violation of the Fourteenth Amendment and a dissenting opinion in the state Supreme Court bore evidence that the Federal Constitution was invoked against a construction of the state laws by which the taking was justified, Held, that this court had jurisdiction to review. Charter and state laws authorized a corporation to build and operate an electric railroad, to condemn water power and employ it in generating electricity for use in running the road, to sell the surplus of current so generated and, in connection with these objects, to construct buildings and factories, and operate machinery. In condemnation proceedings whereby the corporation took water rights of a riparian owner, the state court found that the purpose was in good faith to carry on the business of building and operating the road, that the taking of all the water power was necessary for that purpose, and that the purpose was public. Held: (1) That in the absence of definite proof that a surplus would result this court could not say that sale of surplus power was the real object of the enterprise or anything more than a possible incident, necessary to prevent waste, of the railway use. (2) Even if sale of surplus power were likely to occur, the taking, upon the case as made, would be justified by Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U. S. 30, 32. 171 N. Car. 314, affirmed.

This is a special proceeding to condemn the water rights incident to land belonging to the plaintiffs in error upon a bow of Green river. It has resulted in a judgment of condemnation subject to the payment of $10,000. The petitioner, the defendant in error, owns land on the side of the stream opposite to that of the plaintiffs in error, the respondents, and on both sides of the stream above and below that land. It proposes to cut off the bow by a dam above, and a steel flume that re-enters the river below that land, all upon its own ground. The respondents in their answer set up that the condemnation in this manner and for the purpose alleged would be the taking of private property without due process of law, in violation of the 14th Amendment, and we assume that the record discloses a technical right to come to this court. Minneapolis & St. L. R. Co. v. Minnesota, 193 U. S. 53, 62, 48 L. ed. 614, 618, 24 Sup. Ct. Rep. 396; American Sugar Ref. Co. v. Louisiana, 179 U. S. 89, 91, 45 L. ed. 102, 103, 21 Sup. Ct. Rep. 43. The decision of the supreme court in sustaining the condemnation discusses only matters of state law, but the Chief Justice, dissenting, intimated that the taking infringed the Constitution stitution of the United States. 171 N. C. 314, 88 S. E. 245. The defendant in error, the Blue Ridge Interurban Railway Company, seems to have been incorporated with power to build and operate a street and interurban railway from Hendersonville through Saluda to a point on Green river, and to extend its lines to any other points not exceeding 50 miles from Saluda; also with power to maintain a water power plant on Green river for the purpose of generating electricity to be used in operating the railway; and with all other powers granted by the laws of the state to corporations of that character, including all rights of condemnation and the right to sell and dispose of the surplus electric power generated at its plant. It has also a somewhat general authority to construct buildings and factories, operate machinery, etc.; but limited, as we understand it, to acts expedient for the proper prosecution of the objects for which the corporation was created. This taking, according to the findings before us, was with intent in good faith to carry on the public business authorized by the charter,—that is, to build and operate a street and interurban railway between points named. It is found further that it was necessary to generate electric power on Green river in order to operate the railway; that the present proceeding was for a public use, and that in order fully to develop the Blue Ridge Company's water power on Green river for the above-mentioned purposes, it was necessary to condemn the rights in question. Subject to provisos that were held to have been satisfied, and that are not in question here, a statute of 1907, as amended in 1913, authorized street and interurban railways situated as the petitioner was to condemn water power. The objection that is urged against this statute and the charter as applied in the present case is that taking the whole water power is unnecessary for the purposes of the railway, that the plan is a covert device for selling the greater part of the power to mills, that this last is a private use, and that the two objects being so intermingled, the taking must fall. We are asked to go behind the finding that the taking was for a public use, on the ground that the charter authorizes the sale of surplus power, that the contemplated works will produce fifty thousand horse-power, and that this, according to the evidence, is much more than will be needed for the railway. But the surplus is a matter of estimate, and no reason is shown for our not accepting the findings below. We are in no way warranted in assuming that the sale of surplus power, if there is any, is the real object of the enterprise, or anything more than a possible incident, necessary to prevent waste, of the primary public use. Furthermore, if there are likely to be such sales, nothing appears sufficient to take the case out of the scope of a recent decision of this court. Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co. 240 U. S. 30, 32, 60 L. ed. 507, 511, 36 Sup. Ct. Rep. 234. Judgment affirmed.

244.US.90

The Act of March 2, 1899, c. 377, 30 Stat. 993, in providing for conveyance to the United States by the Northern Pacific Railroad Company of lands within the Mount Ranier National Park in exchange for public lands to be selected elsewhere, is to be construed as extending to that company's successor in title though no successor is named; and the Northern Pacific Railway Company, recognized as such successor by the Land Department both in the making of the conveyance of base lands and in the enjoyment of the right of lieu selection, is not to be denied that right upon the hypothesis that the Northern Pacific Railroad Company had ceased to exist before the date of the act.' In surveying and reporting on public lands, a deputy surveyor described them as suitable for grazing, if cleared, but more valuable for timber at the time. This having been accepted and acted upon by. the Land Department as a description of the lands as nonmineral, Held, that they were to be regarded as "classified as nonmineral at the time of actual Government survey," for the purposes of lieu selection' by the Northern Pacific Railway Company under the Act of March 2, 1899, supra. Whether a preliminary lieu selection of unsurveyed public land may be said to designate the tract "with a reasonable degree of certainty," under the Act of March 2, 1899, supra, is a question in the nature of a question of fact to be determined upon the circumstances of each case. A description in terms of future survey may suffice if the land may be located therefrom with the aid of an adjoining survey already made. Semble, that the rule limiting inquiry in this court to questions presented to the court below (Montana Railway Co. v. Warren, 137 U. S. 348) is not confined to questions of procedure and is not inflexible. 221 Fed. Rep. 30, affirmed. SUIT by appellant West (he was plaintiff in the court be

The controversy in the case turns on the construction and application of the act of Congress. Because of it the land offices, local and general, rejected plaintiff's application to enter the lands as a homestead. By virtue of it the railway and its grantee, the timber company, assert title. Its primary purpose was to set aside certain public lands as a national park, to be known as the Mount Ranier National Park. An obstacle to the purpose was a grant of the desired lands to the Northern Pacific Railroad Company and their relinquishment had to be provided for. This was done (§ 3) by authorizing the company to select an equal quantity of public lands elsewhere, or, more specifically, within any state into or through which the railroad ran. There was a qualification of the character of the lands to be selected. They were to be 'nonmineral public lands, so classified as nonmineral at the time of actual government survey, which has been or shall be made, of the United States not reserved and to which no adverse right or claim shall have attached or have been initiated at the time of the making of such selection.' [30 Stat. at L. 994, chap. 377, Comp. Stat. 1916, § 5225.] It was provided (§ 4) that upon the filing by the railroad company of the selection at the local land office, and payment of fees prescribed by law in analogous cases, and the approval by the Secretary of the Interior, he should cause a patent to issue to the company, conveying to it the lands so selected; that 'in case the land so selected at the time of selection be unsurveyed, the list filed by the company shall describe such tract in such manner as to designate the same with a reasonable degree of certainty;' and that, within thirty days after the tract shall have been surveyed and the plats thereof filed, a new selection shall be filed by the company, describing the tract according to such survey. And, further, that in case the tract as originally selected and described in the list filed in the local land office shall not precisely conform to the lines of the official survey, the company shall be permitted to describe such tract anew, so as to work such conformity. Construing the act by its words there would seem to be no difficulty in determining its meaning. It would seem to be simple in purpose and clear in provision to accomplish the purpose. But plaintiff raises various questions upon it. He asserts: (1) That the grant was to the Northern Pacific Railroad Company and could not be availed of by its successor through foreclosure, the Northern Pacific Railway Company. (2) That the lands were classified as mineral under the Act of Congress of February 26, 1895 [28 Stat. at L. 683, chap. 131], and the classification approved by the Secretary of the Interior March, 1901, and the surveyor having failed to make any classification of the lands in terms as nonmineral, they were not subject to selection. (3) That if the first and second contentions be untenable, the lands were not described 'with a reasonable certainty' so as to bar the rights of settlers in good faith, without actual or constructive notice. (1) The argument advanced to support this proposition is that by the foreclosure proceedings the Northern Pacific Railroad Company ceased to exist, and if everything it had or had an interest in did not go out of existence with it, at least its rights under the Act of 1899 did, and yet counsel say plaintiff has nothing to do 'with the question whether the conveyance of the lands to the United States under the provisions of the act conveyed a valid title.' It would be somewhat anomalous indeed if the act conveyed to the United States a valid title, but did not convey to the railroad anything substantial that could be transferred by sale under the decree of a court to the successor of that company. We might ask the question, Where in the world were the rights conveyed to the railroad company left—and if left at all, by whom were they to be enforced or availed of? We agree with the district court that, as a mere matter of construction, the contention of plaintiff must be rejected. In July, 1896 (Northern P. R. Co. v. Boyd, 228 U. S. 482, 490, 57 L. ed. 931, 934, 33 Sup. Ct. Rep. 554; Northern P. R. Co. v. United States, 101 C. C. A. 117, 176 Fed. 706), three years prior to the act of Congress, the railway company had become successor to the railroad company, its vendor through the foreclosure proceedings of the lands the government desired, and yet the latter company was designated in the act as the company to select the lands in compensation for those desired and taken by the government for the Mount Ranier National Park. It may be, as said by the district court, a matter of speculation why the railroad company rather than the railway company was named as grantee, but it is certain it was done in recognition of rights, and not in mere jugglery to obtain lands for the National Park and convey nothing to either company in return,—nothing to the railroad company because, according to the contention, it had gone out of existence; nothing to the railway company because, according to the contention, it had not succeeded to the rights of the railroad company. On the contrary, we must assume that the act was passed and the railroad company selected to consummate the exchange either by itself or by its successor, the railway company, or by both. And this was done, and the two companies and the trustees of the railway company's mortgage joined in a deed of reconveyance to the United States. And this purpose of the act and what was done under it was recognized by the Land Department. Davenport v. Northern P. R. Co. 32 Land Dec. 28; Ferguson v. Northern P. R. Co. 33 Land Dec. 634; Idaho v. Northern P. R. Co. 37 Land Dec. 135, 138. See also Delany v. Northern P. R. Co. 45 Land Dec. 6. It is pertinently said by counsel for the railway company: 'The government itself is satisfied with its title; and certainly it cannot, while retaining that title, deny to those from whom it was obtained the lands offered in exchange.' (2) As we have seen, the right was to select 'an equal quantity of nonmineral public lands, so classified as nonmineral at the time of actual survey.' The lands are in fact nonmineral, but the contention is that they were not so classified at the time of actual survey. The deputy surveyor who made the survey reported that the lands, if cleared, would be suitable for grazing, but at the time of the report were more valuable for their timber. This, it is contended, is not a classification of the lands as nonmineral; that it was not a classification, but an omission to classify,—negative, not affirmative; inferential, not positive,—and therefore not a compliance with the statute. We cannot concur. The report was accepted by the Department as a description of the lands as nonmineral. They could be made suitable for grazing, was the report; pending that time they were more valuable for their timber. There was positive description of their character; words excluding some other character were not necessary. Classification is characterization through the selection of some quality or feature, and therefore lands may be classified as pasture (grazing), timber, arable, or mineral. It is determined by surface indications. Minerals may be hidden under any surface, but a surveyor is not expected to explore for them, that he may include or exclude reference to them in his reports. Such character is exceptional, besides, and considered by the Land Office as absent if not noted.1 The contention that the lands were classified as mineral under the Act of February 26, 1895, is answered by the admission made at the trial that the records do not show it. (3) The act of Congress authorized the selection of an unsurveyed tract, but required it to be described 'in such manner as to designate the same with a reasonable degree of certainty,' and it was provided that, when surveyed, a new list was to be filed, describing the tract 'according to such survey.' The lands, we have seen, were designated by sectional number, township, and range, and it is contended that such designation—'terms of future survey,' as counsel term it—was not a description 'with a reasonable degree of certainty.' This seems to have been the only contention submitted to the court of appeals, and upon careful consideration the court decided against the contention upon the Act of 1899, and, in analogy, upon other acts of Congress in relation to the public lands, and also upon the rules and decisions of the Land Department. It is not necessary to repeat the reasoning of the court. What was a description having 'a reasonable degree of certainty' was to be determined by the circumstances. It was in the nature of a question of fact and had tests for decision, as the court of appeals pointed out. It had the aid of an adjoining survey, and the lands could be readily located from such survey. It was pointed out that the act of Congress did not require exactness; it contemplated a subsequent readjustment. 'The filing of the first list is in a sense preliminary to obtaining the patent. It initiates the right, and not as much particularity and exactness is ordinarily required as where final stages are to be observed in clearing up and completing the transaction. In fact, by contemplation of the statute, the new selection is required to conform with the established survey and thus to correct the description in the primary selection. By reasonable intendment, therefore, we are impressed that the description contained in the railway company's list No. 61, under the conditions prevailing of the survey of township 45 to the north and the proximity of the land in question thereto, designated the land with a reasonable degree of certainty, and must be held sufficient as a matter of law.' For the premises from which this excerpt is the conclusion we refer to the opinion. The court of appeals said that the question of the sufficiency of the description was 'the single question urged' for its decision, and counsel for defendants contend that no other question is open to our review, and cite Montana R. Co. v. Warren, 137 U. S. 348, 351, 34 L. ed. 681, 682, 11 Sup. Ct. Rep. 96. Plaintiff replies that the principle of that case applies only to questions of procedure, and not to questions of jurisdiction or the foundation of the right; adducing Rosen v. United States, 161 U. S. 29, 40 L. ed. 606, 16 Sup. Ct. Rep. 434, 10 Am. Crim. Rep. 251; Old Jordan Min. & Mill. Co. v. Soci ete Anonyme des Mines, 164 U. S. 261, 41 L. ed. 427, 17 Sup. Ct. Rep. 113; Gila Valley, G. & N. R. Co. v. Hall, 232 U. S. 94, 58 L. ed. 521, 34 Sup. Ct. Rep. 229. See also Magruder v. Drury, 235 U. S. 106, 113, 59 L. ed. 151, 153, 35 Sup. Ct. Rep. 77. The distinction between questions seems to be artificial. The essential circumstance would seem to be that a review is sought of that which was not decided, not submitted at all, or withdrawn from submission, and which, if it had been submitted, might have been decided in favor of the appealing party. However, in deference to the earnestness of counsel, we have considered the questions. Affirmed.

242.US.405

A city ordinance fixing the maximum rate chargeable by a gas company will not be adjudged confiscatory if at the time of the judicial inquiry the net profits derivable under the ordinance will give a fair return upon the then value of the company's property. Plaintiff, a gas distributing company, whose rates were fixed by an ordinance, purchased its gas under a contract, which measured the vendor's compensation by a percentage of plaintiff's gross receipts. The contract antedated the ordinance and had several years to run .when suit was commenced. Plaintiff contended that under the ordinance rate the contract was no longer profitable to its vendor. Held, that the effect of the ordinance upon the constitutional rights of the vendor.was immaterial to plaintiff's case.. The contract expired before the evidence ,was closed. Held, that, for the purposes of this case, plaintiff not having shown what it paid afterwards, the contract might be assumed to measure plaintiff's probable expense for gas during the life of the ordinance. 92 Ohio St. 393, affirmed. THE case is stated in the opinion.

The question upon which our jurisdiction is here invoked is whether an ordinance of the city of Newark, Ohio, passed March 6, 1911, fixing the maximum price that plaintiff in error might charge to consumers of natural gas in that city for a period of five years at 20 cents per thousand cubic feet, with 10 per cent discount for prompt payment,—a rate described as '18 cents net,' is confiscatory, and therefore in violation of the 'due process' clause of the 14th Amendment. Plaintiff in error operates under a franchise granted by a city ordinance passed February 21, 1898, for a term of twenty-five years, which permitted a rate of 25 cents per thousand for a period of ten years from its passage, but within that period the company voluntarily introduced a net rate of 18 cents and maintained it for some years prior to the adoption of the ordinance of 1911. The company refused to accept the provisions of the latter ordinance and notified its customers that it would discontinue service unless the rate of 25 cents was paid. Thereupon the city filed a petition in the court of common pleas of Licking county, praying a mandatory injunction. The company answered that the ordinance provided no just compensation for the use of its property and therefore deprived it of its constitutional rights. Voluminous evidence was taken upon this issue, and the court found the defense to be unfounded in fact, and made a decree in favor of the city, but without prejudice to the right of the company to apply for a modification 'if at any time it should appear that said rate of 18 cents net does not render an adequate return to said defendant company.' An appeal was taken to the court of appeals and there heard upon the evidence taken in the court of common pleas and additional evidence, and the same decree was entered as in the court of common pleas. The supreme court of Ohio affirmed the decree (92 Ohio St. 393, 111 N. E. 150). The opinions of the state courts show that they gave careful consideration to the questions of the value of the property of plaintiff in error at the time of the inquiry, the total amount of net profits that could be earned under the rate fixed, and whether this would be sufficient to provide a fair return on the value of the property. The concurring judgments were based upon principles thoroughly established by repeated decisions of this court (Covington & L. Turnp. Road Co. v. Sandford, 164 U. S. 578, 597, 598, 41 L. ed. 560, 566, 567, 17 Sup. Ct. Rep. 198; San Diego Land & Town Co. v. National City, 174 U. S. 739, 754, 43 L. ed. 1154, 1160, 19 Sup. Ct. Rep. 804; Knoxville v. Knoxville Water Co. 212 U. S. 1, 53 L. ed. 371, 29 Sup. Ct. Rep. 148; Willcox v. Consolidated Gas Co. 212 U. S. 19, 48, 53 L. ed. 382, 398, 48 L.R.A.(N.S.) 1134, 29 Sup. Ct. Rep. 192, 15 Ann. Cas. 1034; Des Moines Gas Co. v. Des Moines, 238 U. S. 153, 163, 59 L. ed. 1244, 1250, P.U.R.1915D, 577, 35 Sup. Ct. Rep. 811), and the finding that there was no confiscation is amply supported by the evidence. The reservation of the right to apply thereafter for a modification was in accord with the action of this court in the Knoxville and Willcox Cases, 212 U. S. pp. 19, 55. A distinction is sought to be based upon the fact that two companies are necessarily affected by the rate,—a producing and a distributing company; it being contended that the state courts have ignored the cost of production. It appears that after the granting of the franchise of 1898, plaintiff in error, which theretofore had been both a producer and a distributer of gas, sold all of its property to the stockholders of the Logan Natural Gas & Fuel Company, and thereafter confined its activities to distribution, the Logan Company being in control of production and transportation; and that in 1904 the Logan Company entered into a contract with plaintiff in error to furnish the gas needed to supply the city for a term of years, on the basis of a percentage of the aggregate readings of the consumers' meters, in the proportion of 70 per cent of the gross receipts for the Logan Company and 30 per cent for plaintiff in error. At the time the suit was commenced the contract had two or three years to run, while the limiting ordinance was to continue for five years. There is no contention that plaintiff in error could not operate profitably under the ordinance of 1911 so long as the contract remained in force; but it is said that, because of changed conditions, including the partial exhaustion of the gas-producing field, the contract was no longer profitable to the Logan Company under the rate permitted by the ordinance of 1911, the cost of production and transportation of natural gas alone being at that time, as is asserted, as much as the entire amount of the net rate of 18 cents allowed by the ordinance. But plaintiff in error cannot be heard here to assert the constitutional rights of the Logan Company (Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 544, 58 L. ed. 713, 719, 34 Sup. Ct. Rep. 359), and the pertinent question is what plaintiff in error would probably have to pay for gas during the life of the ordinance. The contract measured this so long as it continued in effect. And, although it expired some time before the closing of the evidence in the court of appeals, as the supreme court pointed out, no evidence was offered to show the rate paid by the Newark Company to the Logan Company after its expiration. The ordinance specified a period of five years; but, by the decree, this was made subject to the provision giving a right to plaintiff in error to apply for relief if it should appear that the 18-cent rate did not render an adequate return. Plaintiff in error has failed to show that the ordinance has the effect of depriving it of property without due process of law within the meaning of the 14th Amendment, and the judgment under review is affirmed.

243.US.572

In an action in a state court under the Federal Employers' Liability Act, it was in evidence that the employee, in the line of his duty, was injured in an effort to raise a coupler without the aid of a jack; that a jack was the proper appliance for such work; that he had requested one of his superior repeatedly on former like occasions and that it had been promised him a few weeks before the accident. The court below having affirmed the action of the trial court in refusing to direct a* verdict for defendant upon the grounds of assumption of risk and absence of negligence, Held; that there was no clear and palpable error such as would justify this court in disturbing the verdict for the plaintiff. Baltimore & Ohio R. R. Co. v. Whitacre, 242 U. S. 169, 171.

The Federal Safety Appliance Acts (as supplemented by Act of April 14, 1910, chap. 160, 36 Stat. at L. 299, Comp. Stat. 1913, § 8621) prohibit a carrier engaged in interstate commerce from hauling a car with a defective coupler, if it can be repaired at the place where the defect is discovered. United States v. Erie R. Co. 237 U. S. 402, 409, 59 L. ed. 1019, 1023, 35 Sup. Ct. Rep. 621. The Seaboard Air Line Railway received such a car at one of its yards. Lorick, the local car inspector and repairer, who discovered the defect, undertook to make the repairs, as was in the line of his duty. To do so it was neecssary to raise the coupler; and for this a jack was the appropriate appliance. None having been furnished him, he sat down under the coupler and raised it with his shoulder, which was thereby seriously strained. Occasion to make similar repairs had previously arisen at this yard at short intervals. Lorick had for this purpose repeatedly asked the chief car inspector for a jack; and a few weeks before the accident had been promised one. Lorick sued the company under the Federal Employers' Liability Act, in a state court of South Carolina, and testified to the facts above stated. The case was tried twice before a jury and was twice reviewed by the supreme court of South Carolina. At the first trial the court directed a nonsuit on the ground that Lorick had assumed the risk. The supreme court set aside the nonsuit (102 S. C. 276, 86 S. E. 675), holding that, in view of the promise to supply a jack, the question of assumption of risk should have been left to the jury, citing McGovern v. Philadelphia & R. R. Co. 235 U. S. 389, 59 L. ed. 283, 35 Sup. Ct. Rep. 127, 8 N. C. C. A. 67. At the second trial defendant asked for a directed verdict on the grounds both that Lorick had assumed the risk and that there was no evidence of negligence on defendant's part. This request being refused, the case was submitted to the jury under instructions which were not objected to; and a verdict was rendered for plaintiff. Defendant's exceptions to the refusal to direct a verdict were overruled by the supreme court. The case comes here on writ of error where only these same alleged errors may be considered. The appellate court was unanimous in holding that the trial court had properly left the case to the jury. No clear and palpable error is shown which would justify us in disturbing that ruling. Great Northern R. Co. v. Knapp, 240 U. S. 464, 466, 60 L. ed. 745, 754, 36 Sup. Ct. Rep. 399; Baltimore & O. R. Co. v. Whitacre, 242 U. S. 169, 171, 61 L. ed. 228, 37 Sup. Ct. Rep. 33. The judgment is affirmed. Mr. Justice Van Devanter and Mr. Justice McReynolds dissent.

246.US.413

A grant of "all the right and authority" that a city "has the capacity to grant" to construct, hold and operate a street railroad on designated streets, without a hint of limitation as to time, is a grant in perpetuity if the city has authority to grant perpetually. An ordinance entitled "an ordinance prescribing the terms and conditions of street passenger railroads within the City of Covington," providing for proposals and a contract to be made with the best bidder respecting specific routes, and declaring that "all contracts made under the provisions of this ordinance shall be for the term and period of twenty-five years," held not to be addressed to the scope of future ordinances, and not to limit the term, otherwise perpetual, of a franchise for other routes granted by a later ordinance. One street railroad company held a perpetual ordinance franchise, and another a limited one with but eight years to run with the right, however, at expiration to secure a new franchise or compensation for its property. An ordinance, entitled as granting the right of way to the first company over the streets held by the second, authorized the first to contract for the second's right and to "occupy and use" such streets "subject to the conditions, limitations and restrictions" contained in the ordinances regulating the first company's rights in the streets it already occupied, but, as a condition, obliged the first company to give up part of its line which would be but imperfectly supplied by the new rights even if they were perpetual. Held, that the ordinance granted a perpetual franchise to the first company, and was not merely a consent that it acquire the right of the second. Where not otherwise construed by the state court, legislation vesting the streets in a city, and giving its authorities exclusive control over them and its council exclusive power to establish and regulate all sidewalks, streets, alleys, lanes, spaces and commons of the city, is to be taken as empowering the city to grant street railroad franchises in perpetuity. Owensboro v. Cumberland Telephone & Telegraph Co., 230 U. S. 58. A street railroad is one of the ordinary incidents of a city and with respect to the municipal granting power stands on a different footing from steam railroads habitually run over separate rights of way. Affirmed.

This is a bill in equity brought by the appellee to restrain the City of Covington from carrying out an ordinance of July 14, 1913, that provides for the grant of a twenty-year franchise for a street railway over certain streets to the best bidder. The plaintiff claims a right by grant and contract over the same streets, which will be interfered with, and sets up article 1, § 10, and the Fourteenth Amendment of the Constitution. The defendant says that the plaintiff's grant has expired, and that if it purports to be perpetual it was beyond the power of the city. These are the two propositions argued. The District Court granted the injunction as prayed and the city appealed. We will consider first the scope of the ordinances and contract under which the plaintiff makes its claim. On January 21, 1870, Edward F. Abbott, S. J. Redgate and their associates were incorporated, with perpetual succession, as the Covington and Cincinnati Street Railway Company, with power to construct railways in the City of Covington along such streets as the council might grant the right of way to, and along such roads out of the city as the companies owning the roads might cede the right to use. The company was authorized to purchase and hold such routes and railway tracks as might be deemed necessary for its use, and to connect with and use the tracks of other railways in the vicinity upon equitable terms. Just before their incorporation, on December 13, 1869, an ordinance was passed by the city granting, according to the terms of a contract executed on December 23, 1869, to Abbott and Redgate, 'their associates, successors and assigns,' 'all the right and authority that [the city had] the capacity to grant, to construct, hold and operate a street railroad upon and along' the streets named. The only provision for a termination of the rights conveyed was in case of a failure of the grantees to keep their covenants. On December 28, 1874, an ordinance was passed extending the time for completing the work under the Abbott contract, renewing the terms of the same but somewhat changing the route, and on January 28, 1875, another authorized an extension to a suspension bridge across the Ohio. On May 1, 1875, Abbott and his associates conveyed all their rights under the foregoing ordinances and contract to the corporation that they had formed, and the title of the corporation was recognized by an ordinance of June 21, 1875. On January 25, 1876, Abbott and others were incorporated with perpetual succession as the South Covington and Cincinnati Street Railway Company, the appellee, with substantially the same powers that were granted to the Covington and Cincinnati Company, and on December 20, 1876, the last-named corporation conveyed its rights to the appellee. The latter has whatever rights were acquired by Abbott, as was recognized by an ordinance of October 13, 1881. As there is no hint at any limitation of time in the grant to Abbott, and on the other hand the city grants all the right and authority that it has the capacity to grant, there can be no question that the words taken by themselves purport a grant in perpetuity more strongly than those held to have that effect in Owensboro v. Cumberland Telephone & Telegraph Co., 230 U. S. 58, 33 Sup. Ct. 988, 57 L. Ed. 1389. The fact chiefly relied upon to narrow their operation is found in the terms of 'an ordinance prescribing the terms and conditions of street passenger railroads within the City of Covington' passed on December 15, 1864, before the dealings with Abbott. By section 13 'all contracts made under the provisions of this ordinance shall be for the term and period of twenty-five years.' It is contended that this by implication governs later transactions. But there is little ground for even an argument upon the point. The ordinance is providing for proposals and a contract with the best bidder, concerning routes contemplated by a rival of the Covington and Cincinnati, the Covington Street Railway Company incorporated on February 9, 1864 (afterwards bought up by the appellee). The contracts referred to in section 13 are primarily at least contracts of those who should acquire the franchises offered, such as in fact were made. In no sense is the Abbott contract a contract under that ordinance. It was a contract under the ordinance of 1869, which established its substance and even its form. The ordinance of 1864 did not address itself to the construction or scope of future ordinances, but only of certain contracts of which Abbott's was not one. We regard the matter as too plain to be pursued into greater detail. This part of our decision covers all the grants to Abbott including the right to lay tracks to the suspension bridge. There were extensions of the plaintiff's rights by acts of the Legislature of March 13, and April 5, 1878 (Laws 1877-78, cc. 423, 813), in general terms that there seems to be no reason for supposing more limited in time than the original grant. See section 3. The only part of this branch of the case needing further discussion concerns the rights acquired by the plaintiff through the purchase of its rival's, the Covington Street Railway's, lines. This company, under the ordinance of 1864 that we have mentioned got a franchise limited to twenty-five years, but with provisions that there should be a new bid after that time and that the successful bidder, if other than the Covington Street Railway Company, should purchase its property upon a valuation. It did not lose the value of that property by the ending of its right of use. On June 8, 1882, the plaintiff, already having a general authority by its charter, was authorized by 'an ordinance granting the right of way over certain streets * * * to' the plaintiff, to contract with the Covington Street Railway Company for the right of way held by the latter and to occupy and use the streets specified in the contract of that road with the city 'subject to the conditions, limitations and restrictions contained in the ordinances regulating its (the plaintiff's) right to the streets now occupied by said South Covington and Cincinnati Street Railway Company.' This grant was on condition that the plaintiff should remove the tracks by which it connected with the suspension bridge under the ordinance of January 28, 1875, and give up its rights to the same, which as we have said were r ghts in fee. It got other access to the bridge over the Covington Street Railway line, but we agree with the district judge that it is not to be supposed that it would give up its perpetual right for a franchise having eight years to run over a less convenient route, so far as this part of its purchase was concerned. We agree also that the language of the ordinance conveys more than a license to purchase what the vendor had. The title and the operative words import a grant and the reference to the ordinances regulating the plaintiff's right in the streets adopts as the measure these, not the contract with the selling road. The ordinance was followed by the contemplated contract in July, 1882. Some further grants need no special mention. We are of opinion that the plaintiff's right in this part of its system also is a right in fee. The question of the power of the city to grant a perpetual franchise needs but few words. By statute the streets were 'vested in the city' and the authorities of the city were given 'exclusive control over the same' and in another section the council was given 'exclusive power to establish and regulate * * * all sidewalks, streets, alleys, lanes, spaces and commons of the city.' Acts 1849-50, c. 237, art. 1, § 2, p. 239, and article 2, § 19, p. 247. No decision of the State Court is brought to our attention that calls for any hesitation in following the authority of Owensboro v. Cumberland Telephone & Telegraph Co., 230 U. S. 58, 33 Sup. Ct. 988, 57 L. Ed. 1389, and pronouncing the authority complete. Wolfe v. Covington & Lexington R. R., 15 B. Mon. (Ky.) 404. A street railroad is one of the ordinary incidents of a city street and stands on a different footing from the steam roads habitually run over separate rights of way. See, also, Act of March 13, 1878, c. 423, and Act of April 5, 1878, c. 813, §§ 1, 3. Decree affirmed.

246.US.273

Creditors who participated in the initiation of involuntary bankruptcy proceedings, in the election of a trustee and in a creditors' meeting resulting in expense to the estate; and who filed and secured allowance of their claims, but who received no payments and, before any dividend was declared, obtained an order that their claims be wholly withdrawn and expunged and excluded from participating in the distribution of the estate, held not to be "creditors participating in the distribution" of the estate "under the bankruptcy proceedings" within the meaning of § 70a, subdivision 5, of the Bankruptcy Act. 88 N. J. L. 721, 718, affirmed.

These two cases presenting the same question for decision, were argued and will be decided together. On February 3, 1910, the defendant in error, John Nix & Co., and two other creditors, filed an involuntary petition in bankruptcy against Benajah D. Andrews. On the 15th day of the same month Andrews died and the plaintiff in error was duly appointed executrix of his will. On the 4th of the following April the estate of Andrews was adjudicated bankrupt by the District Court and on the 28th day of the same month a trustee was appointed. Each of the defendants in error, promptly made proof of a claim against the bankrupt estate, and both claims were forthwith allowed. On February 13, 1914, almost four years after these claims were allowed, on the application of Nix & Co. and of Hendrickson, the District Court ordered that the claim of each of them 'be wholly withdrawn from said bankruptcy proceeding and expunged from the list of claims upon the record in this case and excluded from participating in the distribution of the estate * * * of the b nkrupt.' After the entry of this order a dividend was declared and paid by the trustee, in which Nix & Co. and Hendrickson did not participate. No order for the discharge of the bankrupt estate was applied for or granted. At the time of his death Andrews owned two policies of insurance upon his life, one payable to his estate and the other payable to his executors, administrators, and assigns. The proceeds of these two policies, less loans secured by them and less their surrender value, which was paid to the trustee in bankruptcy, were paid to the plaintiff in error as executrix, and the money is held by her subject to the decision of this case. The defendants in error instituted suits in the Supreme Court of the state of New Jersey to recover judgments on the same claims which had been allowed by the trustee but were subsequently withdrawn. The cases were submitted to the court upon a stipulation as to the essential facts substantially as we have stated them, and each recovered a judgment which was affirmed by the Court of Errors and Appeals of the state of New Jersey, which judgments are before us for review. The case is in very narrow compass and calls upon us to consider the proviso of subdivision 5 of section 70a of the Bankruptcy Act of 1898 (Act July 1, 1898, c. 541, 30 Stat. 565 [Comp. St. 1916, § 9654]) and to decide whether the defendants in error 'participated in the distribution' of the bankrupt's estate under the bankruptcy proceedings, within the meaning of that proviso, which reads as follows: 'Provided, that when any bankrupt shall have any insurance policy which has a cash surrender value payable to himself, his estate, or personal representative, 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.' The argument of the plaintiff in error is that these defendants are brought within the purpose, if not within the express terms, of this statutory proviso and should not recover, for the reason that they participated in the election of the trustee in bankruptcy, proved their claims, and were represented in the meeting of creditors at which important action was taken involving expense to the bankrupt estate. Unfortunately for the validity of this argument the provision of the statute is not that the proceeds of the insurance policies may be held 'free from the claims' of creditors who participated in the bankruptcy proceedings, but only from the claims of creditors 'participating in the distribution of the estate in the bankruptcy proceedings.' Whether a line of discrimination between such two classes of creditors is wise or logical is not for us to decide. It is enough that it lies plainly obvious upon the face of the statute. No dividend was paid creditors until after the defendants in error by order of the court had been excluded from participation in the distribution of the estate, and it is stipulated in the agreed case that no payment was made to either of them. The meaning of the proviso is too plain for discussion or interpretation and that the defendants in error did not 'participate in the distribution of the estate in the bankruptcy proceedings' is clear. The judgment of the Court of Errors and Appeals of the state of New Jersey must be Affirmed.

243.US.472

When several questions are certified under Jud. Code, § 239, and answers to part will dispose of the case, answers to the rest may be omitted. Section 9 of the Naturalization Act, c. 3592, 34 Stat. 596, requires that final hearings upon petitions for naturalization shall be held entirely in open court; a hearing in the judge's chambers adjoining the court room does not satisfy this requirement. Under § 15 of the act a certificate of citizenship granted by the court or judge on a state of facts showing the petitioner not qualified for citizenship, is subject to be annulled in an independent suit by the United States.

Four questions have been certified (Judicial Code, § 239 [36 Stat. at L. 1157, chap. 231, Comp. Stat. 1913, § 1216]); but considering the accompanying statement of facts and our views in respect of the law, answers to the first and fourth will enable the circuit court of appeals properly to determine the issues involved. United States v. Britton, 108 U. S. 199, 207, 27 L. ed. 698, 700, 2 Sup. Ct. Rep. 531. Question '1. Is the final hearing of a petition for naturalization had in open court as required by § 9 of the Act of June 29, 1906, chap. 3592, 34 Stat. at L. 599, Comp. Stat. 1913, § 4368, if, after the petition is first presented in open court, the hearing thereof is passed to and finally held in the chambers of the judge adjoining the court room, on a subsequent day and at an hour earlier than that to which the court has been regularly adjourned?' Question '4. May a certificate of citizenship be set aside and canceled in an independent suit brought under § 15 of the Act of June 29, 1906, chap. 3592, on the ground that it was illegally procured, if the uncontradicted evidence at the hearing of the petition showed indisputably that the petitioner was not qualified by residence for citizenship, and that the court or judge who heard the petition and ordered the certificate misapplied the law and the facts?' Prior to 1906 'the Uniform Rule of Naturalization' authorized by the Constitution was found in the Act of 1802 [2 Stat. at L. 153, chap. 28], and a few amendments thereto. This enumerated only general controlling principles. Grievous abuses having arisen, Congress undertook, by the Act of June 29, 1906 (34 Stat. at L. 596, chap. 3592, Comp. Stat. 1913, § 963), to prescribe 'and fix a uniform system and a code of procedure in naturalization matters.' Report Committee on Immigration and Naturalization, H. R. 1789, Feb. 26, 1906. This specifies with circumstantiality the manner ('and not otherwise') in which an alien may be admitted to become a citizen of the United States; what his preliminary declaration shall be; form and contents of his sworn petition to the court and witnesses by which it must be verified; form of oath to be taken in open court; necessary proof concerning residence, character, etc. The clerk is required to post notice of the petition with details concerning applicant, when final hearing will take place, names of witnesses by which alleged facts are to be established, etc. And it is further provided: Section 9. 'That every final hearing upon such petition shall be had in open court before a judge or judges thereof, and every final order which may be made upon such petition shall be under the hand of the court and entered in full upon a record kept for that purpose, and upon such final hearing of such petition the applicant and witnesses shall be examined under oath before the court and in the presence of the court.' Section 15. 'That it shall be the duty of the United States district attorney for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any court having jurisdiction to naturalize aliens in the judicial district in which the naturalized citizen may reside at the time of bringing the suit, for the purpose of setting aside and canceling the certificate of citizenship on the ground of fraud or on the ground that such certificate of citizenship was illegally procured. In any such proceedings the party holding the certificate of citizenship alleged to have been fraudulently or illegally procured shall have sixty days' personal notice in which to make answer to the petition of the United States; and if the holder of such certificate be absent from the United States or from the district in which he last had his residence, such notice shall be given by publication in the manner provided for the service of summons by publication or upon absentees by the laws of the state or the place where such suit is brought.' * * * * * In Johannessen v. United States, 225 U. S. 227, 56 L. ed. 1066, 32 Sup. Ct. Rep. 613, we discussed the purpose and effect of the act. An alien who seeks political rights as a member of this nation can rightfully obtain them only upon terms and conditions specified by Congress. Courts are without authority to sanction changes or modifications; their duty is rigidly to enforce the legislative will in respect of a matter so vital to the public welfare. Section 9 requires a final hearing upon the petition in open court. The term 'open court' is used in contradistinction to a judge sitting in chambers. Bouvier's Law Dict. The whole statute indicates a studied purpose to prevent well-known abuses by means of publicity throughout the entire proceedings. Its plain language repels the idea that any part of a final hearing may take place in chambers, whether adjoining the court room or elsewhere. No alien has the slightest right to naturalization unless all statutory requirements are complied with; and every certificate of citizenship must be treated as granted upon condition that the government may challenge it, as provided in § 15, and demand its cancelation unless issued in accordance with such requirements. If procured when prescribed qualifications have no existence in fact, it is illegally procured; a manifest mistake by the judge cannot supply these nor render their existence nonessential. Question numbered 1 must be answered in the negative; numbered 4 in the affirmative And it is so ordered.

243.US.257

A street railway company in Georgia, under special acts of the legislature, claimed a perpetual and unconditional franchise right to operate over certain county bridges irrespective of the county's consent. The claim being disputed by the county, the company entered into and fully acted upon certain written agreements with the county purporting to be grants by the county to the company of the right to lay, maintain and operate tracks over the bridges upon certain conditions, including payment to the county for the use of the bridges, the county being governed in the transactions by a statute which limited its power to the granting of temporary uses and privileges subject at all times to revocation. Held, partly on the authority of City Electric Ry. Co. v. Floyd County, 115 Georgia, 655, that whatever may have been the rights of the company originally, the effect of the compromise agreements, and their execution, was to substitute a temporary grant subject at all times to revocation. By act of the Georgia legislature (August 15, 1914, Laws 1914, p. 271), Floyd County was authorized to reconstruct the old bridges in Rome, Georgia, requiring, in so doing, the removal of street railway tracks; to grant franchises to operate over new bridges and fix-the terms thereof including, as a condition precedent, that the grantee pay onethird of the cost of construction. The act, however, provides that ",any corporation now having a franchise shall have the right to use any new bridge upon complying with the reasonable conditions imposed by the" county authorities and the terms of the act. Held, that a company which had in effect surrendered its franchise right to use the old bridges in exchange for a temporary grant revocable at the will of the county authorities, could not .enjoin them from proceeding under the act to rebuild the bridges and charge the company one-third of the cost as a condition precedent to its use of the new structures. 228 Fed. Rep. 775, affirmed.

Within the limits of Rome, Georgia, since 1881, three public bridges have crossed the Etowah and Oostanaula rivers. Appellant is successor to the Rome Street Railroad Company incorporated in 1884 by special act, and empowered to construct and operate railroads in that city, also in certain neighboring towns, and, with consent of the Floyd county board of Commissioners of roads and revenues, for 5 miles along public roads (Ga. Laws 1884-5, pp. 191, 235). Authority was given to use horses, electricity, underground cables driven by steam, 'or any other appliance that may hereafter be invented or used as motive power.' The company began to run horse-drawn cars over the city streets and across Howard street or Second Avenue bridge as early as 1885; and this mode of operation continued until 1892 or 1893. The Howard Street bridge having been destroyed in April, 1886, the county erected a new one upon the same site; thereafter it refused to permit the car company to lay tracks or operate over this without payment therefor, and brought suit to enjoin any attempt so to do. In Floyd County v. Rome Street R. Co. 77 Ga. 617, 3 S. E. 3 (Oct. Term, 1886), the state supreme court held: 'The only question made by the record, therefore, is, whether the legislature has authorized the street railroad company to appropriate this bridge to its use in the manner claimed by it, without the county's consent, and without making it compensation. . . . The bridge forms a continuation of the streets of the city across the river, and is a part of the same. . . . The legislature, unless restricted by the state Constitution, may, even without the consent of a municipality, and without allowing it compensation, authorize railroads to be laid in its highways. . . . But even had the consent of the county of Floyd been required to this use of the bridge by the street railroad company, that assent was given, and when the condition on which it was accorded was accepted and acted upon by the company, it became a binding contract until the license was revoked by the only authority having power to revoke it. . . . The precise point insisted upon by counsel for the county is, that where any part of a public street or highway is washed out or otherwise destroyed by any means, and the damage is repaired by a new structure upon the portion thus destroyed or rendered unfit for use, this gives the county a right to exact additional compensation from a railroad company which, previously to the injury, used the street or public highway with the assent of the municipality, where the railroad company proposes to make the same use of the street or highway after it has been repaired. We certainly know of no case which has carried the right of compensation for its use to this extent, and think that its recognition and enforcement by the courts would work great injury to the prosperity of the community.' An amendment to its charter, September 21, 1887 (Ga. Laws 1887, p. 148), empowered the company to use dummy steam engines on the bridges, subject to such regulations as the board of commissioners might prescribe from time to time. Extensions were also specially authorized with consent of the board as to public roads and town authorities as to streets. Another amendment, November 12, 1889 (Ga. Laws 1889, p. 696), prohibited the use of dummy engines or steam power on the bridges without unanimous consent of all the commissioners, declared by public resolution in an official meeting, and it provided, 'that the board of commissioners of roads and revenues of Floyd county shall not have the right to grant any vested or contract rights to said Street Railroad Company, or any other persons on or over said bridges, but may, in their discretion, grant temporary uses and privileges to said Railroad Company over said bridges, subject at all times to be revoked by said commissioners.' February 25, 1892, Floyd county, through its board of commissioners, and the Rome Street Railroad Company, by formal writing, agreed that 'said party of the first part grants to the said party of the second part the right to lay and maintain a single track on one side of the county bridges at Rome, to wit, . . . with the right to place electric wires and appliances and to run electric cars across said bridges upon the consideration and conditions herein named,'—among them payment of $100 annually for use of each bridge, and commencing to build electric lines within ninety days. Later, in 1892 or 1893, the car lines were equipped electrically and extended over and beyond all of the bridges, and since that time have been continuously operated. February 3, 1896, it was stipulated by the county and the City Electric Railway Company, a successor to the Rome Street Railroad Company, and appellant's predecessor, 'that said party of the first part grants to the said party of the second part the right to use its electric wires and appliances and to run electric cars across the Floyd county bridges . . . said company shall pay annually to said party of the first part the sum of $200 for the use of said bridges, in consideration of the grant herein named.' In City Electric R. Co. v. Floyd County, 115 Ga. 655, 42 S. E. 45 (March Term, 1902), the state supreme court sustained the agreement of February 25, 1892. It said: 'If the railroad company originally had the right, under the power granted to it by the legislature, as we are inclined to think it had, to construct and operate its electric lines over the bridges in question without the consent of the county and without paying anything whatever therefor, it lost this right when the dispute between it and the county was compromised and settled by the execution of this contract. If there had been no controversy between the parties as to their respective rights in the matter, and the county had simply charged the railroad company $100 per annum for the use of each of the bridges, and the company had simply agreed to pay this sum annually, the contract entered into might have been, as contended by the plaintiff in error, a nudum pactum, and, therefore, not binding upon the company. But this was not the case; the parties asserted conflicting claims, depending upon a question of law, and these claims were compromised and settled by the contract now under consideration.' An act of the Georgia legislature, approved August 15, 1914 (Ga. Laws 1914, p. 487), provides: That all right, title, and interest in the Rome bridges, together with complete jurisdiction and control over them, shall be vested in Floyd county, to be exercised by its authorities. All permits and franchises theretofore granted by state, county, or city, to any street railroad company, to lay tracks or operate cars over any one of the bridges, are revoked and repealed 'so far as the same applies to any future bridges hereafter constructed under this or any other law, unless the said companies will conform to the reasonable terms and conditions required by the county authorities;' and Floyd county is authorized to condemn and remove existing bridges and construct new ones. The street railway company, upon notice, shall remove its tracks, as may be required by the county authorities; the latter are given exclusive right and jurisdiction to grant franchises to operate over new bridges and to prescribe terms for such grants; and they are authorized to require as a condition precedent that any grantee shall pay to the county 'one third of the actual cost of the building of said bridges . . . but any corporation now having a franchise shall have the right to use any new bridge upon complying with the reasonable conditions imposed by the board of commissioners and the terms of this act.' The validity of any part of the act shall be contested only by injunction proceedings before the work of tearing down and removing the bridges is begun. The commissioners of Floyd county gave public notice, May 3, 1915, that on June 16th, they would begin the work of tearing down old and rebuilding new bridges at an estimated total cost of $260,000. Ten days later they passed resolutions wherein, after referring to the Act of August 15, 1914, and reciting their determination to remove the old bridges and erect others, they declared that appellant would be required to pay one third of the actual cost of removing the old bridges and erecting new ones, 'which sum shall be paid to the county treasurer before said company shall be allowed to place any tracks, wires, equipment, or operate any cars on and over' the new structures. By its original bill, filed May 26, 1915, in the United States district court, appellant sought to enjoin defendants from undertaking to enforce the Act of 1914 according to their declared purpose upon the ground (a) that such action would deprive it of property without due process of law and of the equal protection of the laws, and impair the obligation of contracts with the state, contrary to the Constitution of the United States; (b) that, when properly construed, the Act of 1914 does not authorize defendants to require appellant to pay one third of the cost of removing old bridges and constructing others, such charge being permitted only in the absence of a then-existing franchise to cross the former. Being of opinion that nothing in acts of the legislature, ordinances, or resolutions gave appellant 'any such vested interests, or such right to occupy and use these bridges,' as it claimed, upon motion, the trial judge dismissed the bill. The judgment is correct and must be affirmed. It is unnecessary now definitely to determine what rights were conferred by the Act of 1884. Under the agreements of 1892 and 1896 between appellant's predecessors and the board of commissioners the former accepted a temporary grant, subject at all times to revocation,—all the latter was empowered to make by the Act of 1889. This, we think, is clearly true, and it is also but the logical result of what the supreme court of Georgia held in City Electric R. Co. v. Floyd County, supra. And see West End & A. Street R. Co. v. Atlanta Street R. Co. 49 Ga. 151, 158. Considering the entire Act of 1914, we are unable to conclude that the legislature did not intend to authorize the county authorities to require appellant to pay 'a sum equal to one third of the actual cost of the building of said bridges' before being allowed to use the same. Affirmed.

244.US.564

In determining whether railroad rates fixed by a state authority are confiscatory because not yielding a proper return, the basis of calculation is the fair value of the property used in the service of the public. Therefore, when a railroad which was originally constructed and owned by two is operated by one of them under an arrangement whereby his interest will end and become vested in the other at the expiration of a term of years, the original investment of the operating owner should not be charged in annual instalments against the annual operating revenue, in determining whether the rates fixed are remunerative. There is a strong presumption in favor of rates fixed by an experienced administrative body after a full hearing. Rates should not be held too low upon evidence that they proved unremunerative during a brief period, when conditions for traffic were abnormally poor and little effort was made to improve them. In determining the adequacy of rates, the circumstance that the railroad has been unwisely built in an unfavorable locality, and the nature and value of the service actually rendered by it to the public, are matters to be considered. Semble, that, in testing the validity of rates affecting a limited class of traffic in which the railroad is for the time engaged, an extra cost of construction, not justified by that traffic but incurred with a view to extending the road ultimately into more lucrative territory, should not be accounted as a part of the fair value by which the rates must be gauged. In the absence of a fair test of rates challenged as confiscatory, and in the presence of some doubt of their adequacy, dismissal of the bill should not be absolute, but should be without prejudice to another suit, in case they should prove confiscatory when fully and fairly tested. Final decree following 209 Fed. Rep. 99, modified and affirmed.

Appellant filed his bill in the district court against the members of the Mississippi Railroad Commission, an administrative body having the usual powers, in which he sought relief by injunction against an order prescribing maximum rates on logs in carload lots transported in intrastate commerce, upon a railroad operated by him; the ground of his complaint being that the rates were so low as to be confiscatory and therefore violative of the due process of law provision of the 14th Amendment. The court refused a preliminary injunction (209 Fed. 99), and, upon final hearing, dismissed the bill. The case is brought here by direct appeal because of the constitutional question, under § 238, Judicial Code [36 Stat. at L. 1157, chap. 231, Comp. Stat. 1916, § 1215]. The railroad in question is known as the Batesville Southwestern, and extends from a junction with the Illinois Central at Batesville for a distance of about 17 miles through a timber country, its entire line being within the state of Mississippi. It was built jointly by appellant and the Illinois Central Railroad Company, under a contract pursuant to which he disbursed approximately $146,000 and the company approximately $98,000. The contract was made in 1910, and by its terms Darnell was to maintain and operate the road for twenty years, the company to pay him for maintaining it $143 per mile per annum, and the road was to become the property of the company at the end of twenty years without further payment; the agreement, however, being subject to termination by the company prior to the expiration of the twenty years upon specified terms. The building of the road was commenced about June, 1911. Darnell began operating it as a common carrier in March, 1912, but its construction was not finally completed until about the middle of June, 1914. The road is of standard gauge and construction, ballasted, and built in a first-class manner. Its traffic consists almost wholly of shipments of logs in carload lots from points along the line to the terminus at Batesville. Pending the construction of the road, the Batesville Southwestern Railroad Company was organized as a corporation to take over the property, but the road remained in the hands of Darnell as lessee. In April, 1912, he established and promulgated a tariff providing a uniform rate for freight on logs in carload lots, with a minimum of 4,500 feet, regardless of the kind or character of the timber; which was, for 10 miles and under, $2.80 per thousand feet; 10 to 15 miles, $3.35 per thousand; 15 to 20 miles, $3.90 per thousand. Complaint having been made to the Mississippi Railroad Commission, by citizens interested in the logging business, that these rates were extortionate, unjust, and confiscatory, a hearing was had, and, as a result, the Commission, in July, 1913, made an order reducing the rates nearly 50 per cent on oak, ash and hickory, and more than 50 per cent on other kinds of logs. It appears that at the time of the construction of the railroad Darnell individually was the owner of a large amount (at the time of the hearing he owned 19,000 acres) of timber land in the country through which the road was projected, and that this furnished the reason for his interest in its construction and operation. At the same time he owned the principal part of the stock of R. J. Darnell, Incorporated, a lumber-milling corporation; but between that time and the time of the hearing the bulk of the stock had passed into the hands of his sons, he still remaining president of the company, and having sold to it the timber on the lands owned by him, the company agreeing to cut it, have it hauled, and loaded on the cars, and to pay him a fixed amount per stump. The bill of complaint showed gross receipts from the operation of the railroad for the year ending June 30, 1913, amounting to $15,553.01, and operating expenses $4,296.20, leaving net earnings of $11,256.81. Against this, however, complainant charged as an annual rental $8,133.39, this being 1/20 of $162,667.69, then stated to be the amount invested by him in the construction of the road. Deducting this so-called rental charge left only $3,123.42, or less than 2 per cent on the sum alleged to have been expended by complainant. These figures were the result of the rates established by him; and it was alleged that at the much lower rates established by the Commission the road would yield no return above operating expenses. The bill was filed in September, 1913, the Commission's rates not having as yet been put into effect. At the preliminary hearing the district court held (209 Fed. 99) that upon the showing then made it would not interfere with the Commission's rates, at least until final hearing; thus affording a period for experiment as to whether new business would be developed in volume sufficient to make those rates remunerative. Upon the final hearing, evidence having been submitted by both sides, the court's decree was to the effect that the rates established by the Commission were reasonable and should be enforced. In this court appellant insists, first, that the district court erred in holding that he was not entitled to charge against the annual operating revenue 1/20 of the amount expended by him in the construction of the road. We are clear that this contention is untenable. In determining whether rates are confiscatory because not yielding a proper return, the basis of calculation is the fair value of the property used in the service of the public. Smyth v. Ames, 169 U. S. 466, 546, 42 L. ed. 819, 849, 18 Sup. Ct. Rep. 418; Minnesota Rate Cases (Simpson v. Shepard) 230 U. S. 352, 434, 57 L. ed. 1511, 1555, 48 L.R.A.(N.S.) 1151, 33 Sup. Ct. Rep. 729, Ann. Cas. 1916A, 18. The hypothetical annual payments of 1/20 of the cost of the road to Darnell were not a proper rent charge, and bore no relation to the actual value of the property. They arose out of the contractual arrangement between Darnell and the Illinois Central, and were in the nature of an amortization charge to take account of his diminishing interest in the road. But, upon that theory, the interest of the Illinois Central increased in value by as much as that of Darnell decreased. In any aspect, the transference of his interest to the Illinois Central, and any charge on that account, made by him for purposes of his own bookkeeping, had no proper relation to the question of the value of the property, and hence were of no concern to the public. It is insisted that upon the proofs, and especially by actual experiment, the rates established by the Commission were shown to be confiscatory. It is well established that in a question of rate-making there is a strong presumption in favor of the conclusions reached by an experienced administrative body after a full hearing. Besides this, there was affirmative evidence before the district court to the effect that the rates were reasonable. The evidence for complainant, tending to show they were nonremunerative, while based upon actual experience in the operation of the road, yet relates to only a brief period when conditions were abnormal. The road was a new one, not completed until June, 1914; that is, after the filing of the bill and shortly before the final hearing. The Commission's rates, although promulgated in June, 1913, were not put into effect until September 10, and the period of experimentation to which the evidence related extended only from the date last mentioned to March 31, 1914. Practically the entire business of the road, at first, was hauling logs from complainant's land to a mill operated by R. J. Darnell, Incorporated, at Memphis. That mill was destroyed by fire in June, 1913, and thereafter the corporation constructed a mill at Batesville, but this was not placed in operation until March 17, 1914. In consequence there was a heavy falling off in traffic on the road, there being no Darnell shipments except such logs as were on hand when the Memphis mill was burned. The evidence throws doubt upon the question whether the road, if built merely for the purpose of serving the timber country that is tributary to its present line, was not an extravagant venture. But, as yet, there has been no serious effort to develop traffic even from that country, aside from complainant's own properties. If the road was built rather as a branch of the Illinois Central, and with a view to extending it into a more lucrative territory, any extra cost of construction attributable to this is hardly to be accounted as a part of the fair value devoted to the use of the timber traffic. The circumstances that a road may have been unwisely built, in a locality where there is not sufficient business to sustain it, may be taken into account. Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 412, 38 L. ed. 1014, 1028, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047. And the nature and value of the service rendered by the company to the public are matters to be considered. Covington & L. Turnp. Road Co. v. Sandford, 164 U. S. 578, 597, 41 L. ed. 560, 566, 17 Sup. Ct. Rep. 198; Smyth v. Ames, 169 U. S. 466, 544, 42 L. ed. 819, 848, 18 Sup. Ct. Rep. 418. In the case before us, if the earning capacity of the railroad, present and prospective, really is as small as appellant claims, it may be doubted whether the road is worth what it cost. But it is sufficient for the present to say that the experimental period was too brief; there is too little showing of an effort to develop traffic along the line of the road from property other than that of complainant; and conditions during the entire period covered by the testimony have been too abnormal to enable us to say that the Commission's rates are confiscatory. The decree under review should be so modified that the dismissal of the bill shall be without prejudice to another suit to restrain the enforcement of the Commission's rates if, after a full and fair test, they shall be found to be confiscatory (Knoxville v. Knoxville Water Co. 212 U. S. 1, 19, 53 L. ed. 371, 382, 29 Sup. Ct. Rep. 148; Willcox v. Consolidated Gas Co. 212 U. S. 19, 55, 53 L. ed. 382, 400, 48 L.R.A.(N.S.) 1134, 29 Sup. Ct. Rep. 192, 15 Ann. Cas. 1034), and, as so modified, it should be affirmed. Modified and affirmed.

246.US.519

Within the general terms of the Food & Drugs Act (c. 3915, 34 Stat. 768, §§ 7-8), a bottled article labeled "Compound Ess Grape," but which contains nothing from grapes and is a mere imitation, nmust be deemed adulterated, since some other substance has been substituted wholly' for the one obviously indicated by the label, viz., "compound essence of grape," and also misbranded, since the label carries a false and misleading statement. In such case the mere use of the word "compound" is not a compliance with the proviso in paragraph fourth of § 8 of the act, since it does not give notice that the article is a pure imitation but suggests the contrary. Reversed.

An indictment containing six counts charged defendant, Schider, with violating the Food & Drug Act of June 30, 1906 (34 Stat. 768, c. 3915 [Comp. St. 1916, §§ 8717-8728]), by delivering for shipment in interstate commerce food contained in a bottle plainly labeled as follows: Compound Jos. L. Schider & Co. 93-95 Maiden Lane, New York. Each count alleged the article was an imitation of grape essence artificially prepared from alcohol, water and synthetically produced imitation oils and contained no product of the grape nor any added poisonous or deleterious ingredient; and that the word 'imitation' nowhere appeared. The first count further alleged it was 'unlawfully adulterated in that an imitation grape essence artificially prepared from alcohol, water and synthetically produced imitation essential oils had been wholly substituted for a true grape product, which the article purported to be'; and the second that it was 'unlawfully adulterated in that an imitation grape essence artificially prepared from alcohol, water and synthetically produced imitation essential oils, had been mixed with the said article so as to reduce and lower and injuriously affect the quality and strength of the said article.' The third, fourth, fifth and sixth counts, in varying ways, further alleged misbranding so as to deceive and mislead in that the label indicated a true grape product, whereas the article was not such but an imitation artificially prepared, one which contained nothing from grapes. The trial court sustained a demurrer to each count upon the view that, properly construed the Food & Drug Act did not apply to facts stated. 'Sec. 7. That for the purposes of this act an article shall be deemed to be adulterated: * * * 'First. If any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength. 'Second. If any substance has been substituted wholly or in part for the article. * * * 'Sec. 8. That the term 'misbranded,' as used herein, shall apply to all drugs, or articles of food, or articles which enter into the composition of food, the package or label of which shall bear any statement, design, or device regarding such article, or the ingredients or substances contained therein which shall be false or misleading in any particular, and to any food or drug product which is falsely branded as to the state, territory, or country in which it is manufactured or produced. 'That for the purposes of this act an article shall also be deemed to be misbranded: * * * 'First. If it be an imitation of or offered for sale under the [distinctive] name of another article. * * * 'Second. If it be labeled or branded so as to deceive or mislead the purchaser, * * * 'Fourth. If the package containing it or its label shall bear any statement, design, or device regarding the ingredients or the substances contained therein, which statement, design, or device shall be false or misleading in any particular: Provided, that an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the following cases: * * * Second. In the case of articles labeled, branded, or tagged so as to plainly indicate that they are compounds, imitations, or blends, and the word 'compound,' 'limitation,' or 'blend,' as the case may be, is plainly stated on the package in which it is offered for sale. * * *' 34 Stat. c. 3915, pp. 768, 770, 771. The obvious and undisputed purpose and effect of the label was to declare the bottled article 'a compound essence of grape.' In fact, it contained nothing from grapes and was a mere imitation. Within the statute's general terms the article must be deemed adulterated since some other substance had been substituted wholly for the one indicated by the label; and, also, it was misbranded, for the label carried a false and misleading statement. Defendant relies on the proviso in section 8 which declares articles of food shall not be deemed adulterated or misbranded if they are 'labeled, branded, or tagged so as to plainly indicate that they are compounds, imitations, or blends and the word 'compound,' 'imitation,' or 'blend,' as the case may be, is plainly stated on the package in which it is offered for sale.' But we are unable to conclude that by simply using 'compound' upon his label a dishonest manufacturer exempts his wares from all inhibitions of the statute, and obtains full license to befool the public. Such a construction would defeat the highly beneficent end which Congress had in view. 'The purpose of the act is to secure the purity of food and drugs and to inform purchasers of what they are buying. Its provisions are directed to that purpose and must be construed to effect it.' United States v. Antikamnia Co., 231 U. S. 654, 665, 34 Sup. Ct. 222, 225 (58 L. Ed. 419, Ann. Cas. 1915A, 49). 'The legislation, as against misbranding, intended to make it possible that the consumer should know that an article purchased was what it purported to be; that it might be bought for what it really was and not upon misrepresentations as to character and quality.' United States v. Lexington Mill Co., 232 U. S. 399, 409, 34 Sup. Ct. 337, 340 (58 L. Ed. 658, L. R. A. 1915B, 774). And see United States v. Coca-Cola Co., 241 U. S. 265, 277, 36 Sup. Ct. 573, 60 L. Ed. 995, Ann. Cas. 1917C, 487. The stuff put into commerce by defendant was an 'imitation' and if so labeled purchasers would have had some notice. To call it 'compound essence of grape' certainly did not suggest a mere imitation but on the contrary falsely indicated that it contained something derived from grapes. See Frank v. United States, 192 Fed. 864, 113 C. C. A. 188. The statute enjoins truth; this label exhales deceit. The trial court erred in sustaining the demurrer. Its judgment is reversed and the cause remanded for further proceedings in accordance with this opinion. Reversed and remanded.

243.US.1

It-is the duty of this court to dismiss a certiorari upon discovering that the question which induced the issuance of the writ does not arise on the record. Furness, Withy & Co. v. Yang-Tsze Insurance Association, 242 U. S. 430. Petitioner's intestate was killed by an explosion of gas while making repairs in a school building of the District of Columbia. Damages were recovered in the'Supreme Court of the District and the judgment was reversed by. the Court of Appeals. This court issued a certiorari upon the assumption (induced by a misconception of counsel) that the decision, in possible conflict with decisions of this court, proceeded on the theory that the municipality could not be held for positive, torts committed by its agents while discharging its public or governmental duties. Examination of the record proving that no exception was taken by plaintiff to the. rulings of the' trial court in this regard and that the decision of the appellate court (1) turned on its conclusion that the evidence was msufficient to establish a nuisance as the cause of the accident, Held, that the certiorari must be dismissed. Writ of certiorari to review 41 App. D. C. 463, dismissed.

We state only so much of the case as is essential to an understanding of the disposition which we are constrained to make of it. The action was commenced in May, 1912, by the petitioner as administratrix of the estate of her husband, to recover from the District of Columbia, as a municipal corporation, damages suffered as the result of his wrongful death in September, 1911. Briefly, it was alleged that the District had contracted to make an addition to a school building to it belonging, known as the McKinley Manual Training School, and to put in order and adjust the boilers in the basement of the old building, and while the deceased was engaged under a subcontractor in doing the latter work, he was killed by an explosion of illuminating gas which had escaped from the gas pipes which were in the basement. It was alleged that the gas had been permitted to escape and remain in the basement through the neglect and wrongful conduct of the municipality or its agents. The averments as to the negligence of the municipality both in permitting the escape of the gas and as to allowing it to remain after notice of the dangerous condition, and as to the absence of neglect on the part of the plaintiff's intestate, were ample. There was a subsequent amendment to the petition, alleging facts which, it was averred, established that the conduct of the District as to the escape and failure to remove the gas was equivalent to the creation by it of a public nuisance. The defense was a general denial and a special plea setting up a release on the part of the plaintiff, which latter, on demurrer, was stricken out. There was a verdict and judgment in favor of the plaintiff, and an appeal was taken by the defendant municipality. The court of appeals reversed the judgment and remanded, with directions to grant a new trial, one member of the court dissenting. The appellee alleging that the case in her favor could not be bettered at a new trial, asked that a final judgment be entered, upon the theory that the case would be then susceptible of review in this court on error. On the refusal of this prayer, a petition for certiorari was here presented. The basis asserted for the application for certiorari was that the court below, disregarding a decisive line of decisions by this court holding that a municipality, the District of Columbia, was responsible for positive torts committed by its servants or agents in the course of their employment, under the application of the rule respondeat superior, had mistakenly decided that such decisions were not controlling because that principle had no application when the servants or agents of a municipality represented it in the discharge of duties which were governmental or public in character, as contradistinguished from mere municipal duties,—a ruling from which it was deduced that, in the former situation, a wrong suffered by an individual, however grievous, was not susceptible of redress, because the wrongdoer, the municipality, acting through its agents, was beyond the reach of courts of justice. Besides, it was declared that although the court proceeded upon the assumption that the doctrine which it announced was not in conflict with the previous decisions of this court, that assumption was obviously a mistaken one, since the case principally relied upon by the court to sustain the doctrine which was applied had in express terms declared that the principle announced was in conflict with a previous decision of this court, which decision was wrong and would therefore not be applied. The existence of the ground thus stated in the petition for the writ was not challenged in the opposition filed by the respondent, although the correctness of the legal propositions relied upon and the significance of the previous decisions of this court were disputed. As on the face of the opinion of the court below the reasoning apparently justified the inference that the situation was as stated in the petition for certiorari, the prayer for the writ was granted. When, however, we come to a close examination of the record on the submission of the case on its merits, we discover that the question upon which the certiorari was prayed under the circumstances previously stated does not arise on the record and is not open for consideration, and therefore (of course, we assume through inadvertence of counsel) the petition for certiorari was rested upon a wholly unsubstantial and nonexisting ground,—a conclusion which will be at once demonstrated by the statement which follows: At the trial the court in express terms charged the jury that 'for a mere act of isolated negligence the municipality of the District of Columbia would not be responsible, no matter what the result of the isolated act of negligence was. The District in this action, if responsible at all, can only be responsible upon the theory that the death. . . . resulted from the maintenance of a nuisance, in the first place, and secondly, that the District of Columbia maintained a nuisance.' And this was followed in the charge by a definition of what in the law would constitute a nuisance. To this charge as to nonliability of the city for any act of negligence whatever under the circumstances, unless there was a public nuisance, no exception whatever was taken by the plaintiff, the only exception on the subject being that reserved by the defendant to the charge that there would be a liability even in case of a public nuisance. The case, therefore, on the appeal below (except as to subjects having no relation to the doctrine of municipal liability), involved only the question of liability in case of a public nuisance, and raised no question concerning the correctness of the ruling that the municipality was not liable for an act of individual negligence because the work which was being done when the accident occurred involved the discharge of a governmental as distinguished from a municipal duty. It is true that in the reasoning of its opinion the court below stated what it deemed to be the correct theory concerning the division of the functions of a municipality, in one of which it had power to inflict a positive wrong without redress, and made reference to state cases deemed to establish this doctrine and a decision of this court which it said was argued at bar to establish to the contrary. But this was only reasoning deemed by the court to throw light upon its conclusion on the subject which was before it; that is, whether there was liability on the part of a municipality for a public nuisance as an exception to the general rule of its nonliability for a wrong done when in the exercise of a governmental function, and as a prelude to the ground upon which the judgment rendered was rested; that is, that there was no evidence tending to support the conclusion that the facts constituted a public nuisance. In this view it is plain that if we differed from the conclusion of the court below on the subject of the tendencies of the proof as to the nuisance, we would not be at liberty as an original question to consider and dispose of the alleged contention concerning the governmental function and the resulting nonliability for a wrong done by a municipality, since that question, under the state of the record, was not before the lower court and would not be open for our consideration, as no exception concerning the ruling of the trial court on that subject was taken so as to preserve a review concerning it. As it follows that the certiorari was improvidently granted as the result of a misconception of the parties as to the state of the record and the questions open, it follows that the case comes directly within the rule announced in Furness, W. & Co. v. Yang-Tsze Ins. Asso. 242 U. S. 430, 61 L. ed. 409, 37 Sup. Ct. Rep. 141, and our duty is to dismiss the certiorari, thus leaving the judgment of the court below unaffected by the previous order granting the writ. Dismissed.

244.US.54

The right to challenge the jurisdiction of the District Court over the person of the defendant is not waived by a special appearance for that purpose, by a .postponement of. the hearing at the instance of the plaintiff for the purpose of enabling him to be fully heard on the subject of jurisdiction reserving the right of defendant to plead to the merits if jurisdiction be sustained, or by an order of the court, sun sponte, directing plaintiff to amend his complaint so as to disclose citizenship more fully before the hearing on the jurisdictional question. A motion to quash is a proper mode of attacking service and jurisdiction thereon depending in the District Court; the Conformity Act does not require resort to a demurrer for this purpose even though. the state procedure does. So held where the motion was based on the grounds that defendant corporation was not doing business or possessed of property in the State and on want of representative capacity in the person served. Affirmed. THE case is stated in the opinion.

Alleging himself to be a citizen of New York and a resident in the eastern district, the plaintiff in error sued below to recover from the defendant in error the amount of damages alleged to have been by him suffered as the result of an explosion of dynamite while he, the plaintiff, was engaged as a servant of the defendant in working in a coal mine belonging to and operated by it near Shamokin, Pennsylvania. The defendant was alleged to be a corporation created under the laws of the state of Pennsylvania and a resident of that state, having its principal place of business at Shamokin. It was alleged, however, as a basis for jurisdiction, that the corporation carried on business in the state of New York and had property therein. The summons was personally served upon the president of the corporation who was found in the borough of Manhattan, in the southern district. Upon the complaint and summons and an affidavit of its president, the corporation, appearing specially 'for the sole and single purpose of objecting to the jurisdiction of this court over the defendant in this action,' moved 'to set aside and declare null, void, and of no effect the attempted service of the summons,' upon the ground that the corporation had no property in the state of New York and transacted no business therein, and although its president was personally served while temporarily in the southern district of New York, he was there engaged in the transaction of no business for or on account of the corporation, and had no authority so to do. A hearing was ordered on the motion. At the hour fixed for the hearing, at the request of the plaintiff, it was continued, the court, however, in express terms subjecting the continuance to the condition that the defendant should not lose his right to plead to the merits if, on the hearing on the question of jurisdiction, on the postponed day, authority to entertain the cause was sustained. In addition the plaintiff was ordered within six days to file an amended complaint 'showing whether the plaintiff is an alien or a citizen of the United States, and if a citizen, whether native born or naturalized, and the date and place of such naturalization, if any.' The amended complaint was filed, showing the plaintiff to be an alien, and subsequently on the hearing on the motion to quash the summons an affidavit for the purpose of supporting the jurisdiction was filed on behalf of the plaintiff. It is true, however, to say that this affidavit did not rebut the facts as to the nondoing of business and the absence of property of the corporation in the state of New York, and the want of authority on the part of its president, upon whom the summons had been served, to represent the corporation or transact any business in New York in its behalf. The summons was quashed and the suit dismissed, and the direct appeal which is before us on the question of jurisdiction was then taken. Despite some apparent contention to the contrary there is no room for any controversy concerning the facts upon which the court below based its action; that is, the nondoing of business by the corporation in New York and the absence of authority in its president to represent it there. Indeed, the argument freely admits this and proceeds upon the theory that, although the facts clearly establish the correctness of the ruling below if they are considered, yet they are not subject to be so considered because the challenge to the jurisdiction was waived by the proceedings which were taken to question it. Generically this would seem to rest upon the proposition that because there was a special appearance on the face of the summons and complaint, challenging the jurisdiction, thereby the right to so challenge was waived. But the contrary has been so long established and is so elementary that the proposition need be no further noticed. Although this be true, the argument further is that the right to be heard on the challenge to the jurisdiction was lost because of the postponement of the hearing on that subject which was granted. This, however, in a different form but embodies the error involved in the proposition just disposed of. But, aside from this, as the continuance was granted at the request of the plaintiff, and for the purpose of enabling him to be fully heard on the subject of jurisdiction, no further reference to the proposition is required. Again, it is urged that because, as a condition of the continuance the court reserved the right of the defendant to plead to the merits if, on the hearing, jurisdiction was found to exist, therefore the question of jurisdiction was waived,—a conclusion which is again too obviously wrong to require more than statement to refute it. Moreover, it is insisted that as the order directing the plaintiff to amend so as to fully disclose citizenship before the day for the hearing on the motion as to jurisdiction was an exercise of jurisdiction resulting from some suggestion of the defendant, therefore the question of jurisdiction was not open. But this disregards the fact that the order in question was expressly made by the court, doubtless in the discharge of its duty to see to it that, from no point of view, was its jurisdiction abused. Finally, it is said that as, under the local law, the right to challenge the summons and the jurisdiction resting on it could only have been raised by demurrer, therefore under the Conformity Act (§ 914, Rev. Stat. Comp. Stat. 1916, § 1537) the motion to quash the summons could not be entertained, and, on the contrary, should have been disregarded. We do not stop to discuss the proposition since it is too clear for discussion that its want of merit is foreclosed by previous decisions of this court which have recognized and upheld the practice of challenging the jurisdiction under circumstances like those here present by way of motion to quash instead of by demurrer. Goldey v. Morning News, 156 U. S. 518, 39 L. ed. 517, 15 Sup. Ct. Rep. 559; Wabash Western R. Co. v. Brow, 164 U. S. 271, 41 L. ed. 431, 17 Sup. Ct. Rep. 126; St. Louis Southwestern R. Co. v. Alexander, 227 U. S. 218, 57 L. ed. 486, 33 Sup. Ct. Rep. 245, Ann. Cas. 1915B, 77. Affirmed.

243.US.415

When the decision of the state court in the application of state laws to real property is controlled by a construction of federal statutes concerning the title, which were relied on by the party complaining, this court has jurisdiction to review the judgment. When a forest reservation is made to include a school section previously surveyed, the State may waive its right to the section and select other lands in lieu, under §§ 2275, 2276, Rev. Stats., as amended by the Act of March 3, 1891, c. 384, 26 Stat. 796. This court will not readily disturb a construction of a land law by the Land Department which, though differing from an earlier one, has been adopted on full consideration and long consistently adhered to by the Department, and upon the faith of which large acreages have been acquired and large expenditures have been made. 167 California, 147, reversed.

The Deseret Water, Oil, & Irrigation Company brought a proceeding in condemnation in the superior court of Mono county, California, against the state of California, to appropriate by right of eminent domain certain lands in that state, for the purpose of preserving and maintaining water rights, equipping and operating canals, etc., to be used in supplying water and power to mines, farming neighborhoods, cities, and towns and villages, and to corporations and individuals, draining, reclaiming, and irrigating lands, equipping, operating, and maintaining ditches, reservoirs, etc., and for the operation and maintenance of pumps and pumping plants, electrical lighting and power plants, and electric and power lines. The right to make such appropriation was sustained in the superior court, but upon appeal this judgment was reversed by the district court of appeal for the third appellate district. Thereupon, upon motion to the supreme court of California, the cause was transferred to that court for hearing and decision, and, upon consideration, the judgment of the superior court was affirmed. 167 Cal. 147, 138 Pac. 981. The supreme court held that the lands belonged to the state, and that by certain statutes of the state it had been provided that, notwithstanding the ownership of the state, the lands might be appropriated to a public use such as the Water Company was lawfully proposing to make of them, and that as to such matters the state had consented to be sued in the same manner as any private proprietor might be. A writ of error brings the case to this court. The land in question is a sixteenth section, passing to the state by virtue of the Federal grant for school purposes (Act of 1853, 10 Stat. at L. 244, chap. 143; Act of 1866, 14 Stat. at L. 218, chap. 219, Comp. Stat. 1913, § 4878). Afterward, a national reservation, known as the Mono Forest Reserve, was established by proclamation of the President. This reservation included this section 16 within its boundaries. It was shown at the trial that the lands in question were withdrawn from sale by the state by an act of the legislature, and it was contended they could only be used as bases for lieu selections. The surveyorgeneral of the state offered the lands as bases for such selections, except 40 acres, for which the state had sold an indemnity certificate entitling the purchaser to surrender that land, and apply for unappropriated public land in lieu thereof. All the remainder had been offered for lieu selections, which are pending in the General Land Office. The supreme court of California held that the title to the lands was completely vested in the state, and subject to condemnation at the instance of the Water Company. A motion to dismiss for want of jurisdiction has been submitted. As we shall have occasion to see in the further discussion of the case, its disposition depended upon the construction of statutes of the United States, and the opinion of the state court shows that these statutes were considered and Federal rights asserted under them denied. Nor can we agree that there was a local ground of decision broad enough to sustain the judgment of the state court independently of the construction and effect given to the Federal statute. The controlling effect of the Federal statutes is conceded in the opinion of the state court, and must necessarily follow in view of the nature of the rights dealt with. In this situation this court has jurisdiction. Miedreich v. Lauenstein, 232 U. S. 236, 242, 58 L. ed. 584, 589, 34 Sup. Ct. Rep. 309; North Carolina R. Co. v. Zachary, 232 U. S. 248, 257, 58 L. ed. 591, 595, 34 Sup. Ct. Rep. 305, Ann. Cas. 1914C, 159, 9 N. C. C. A. 109; Rogers v. Hennepin County, 240 U. S. 184, 188, 60 L. ed. 594, 597, 36 Sup. Ct. Rep. 265. The Federal statutes involved are §§ 2275 and 2276 of the Revised Statutes of the United States, as amended in 1891 (26 Stat. at L. 796, 797, chap. 384, Comp. Stat. 1913, §§ 4860, 4861). They are found in the margin.1 as we have already stated, the state has elected to surrender this section 16 to the United States, asking compensation in other lands for the same under the provisions contained in the sections of the Federal statutes just referred to. It is the contention of the state that, because of such action, the lands in question in equity belong to the United States, and that consequently they could not be condemned for the uses of the Water Company. The controversy reduces itself to the precise question whether, when a forest reservation, subsequently proclaimed, includes within its limits a school section surveyed before the establishment of the reservation, the state may, under § 2275, Revised Statutes of the United States, as amended in 1891, waive its right to such section and select other lands in lieu thereof. The first part of the section, giving the right to select lands in lieu of such as were settled upon with a view to pre-emption or homestead, is clearly limited to settlements made before survey of lands in the field, and under the following provision, giving the right of selection to the state where the lands are mineral or are included in an Indian, military, or other reservation, or are otherwise disposed of by the United States, it well may be that, in the absence of the proviso, the right of selection would be confined to instances where the lands were unsurveyed when found to be mineral or included in a reservation, and this because if the lands were unreserved and not known to be mineral when surveyed, the title would then vest in the state (Sherman v. Buick, 93 U. S. 209, 23 L. ed. 849; Heydenfedt v. Daney Gold & S. Min. Co. 93 U. S. 634, 23 L. ed. 995, 13 Mor. Min. Rep. 204; United States v. Morrison, 240 U. S. 192, 204, 207, 60 L. ed. 599, 605, 606, 36 Sup. Ct. Rep. 326), and because lieu selections are usually, although not always, permitted where the right to the place lands is cut off before the time for the title to become vested. But the proviso, which was not originally in the statute, is an important part of it, and, according to a familiar rule, must be given some effect. It reads: 'Where any state is entitled to said sections sixteen and thirty-six, or where said sections are reserved to any territory, notwithstanding the same may be mineral land or embraced within a military, Indian, or other reservation, the selection of such lands in lieu thereof by said state or territory shall be a waiver of its right to said sections.' This language, while not as clear as it might be, operates, as we interpret it, to give to the state a right to waive its right to such lands where, as in this case, the same are included in a forest reservation after survey, that is, after the title vests in the state. Unless this proviso refers to lands the title to which has passed to the state, it adds nothing to the statute and performs no office whatever. This construction preserves the integrity of forest reservations, and permits the state to acquire other lands not surrounded by large tracts in such reservations which are withdrawn from settlement. It is true that the interpretation of the statute has not been uniform in the Department of the Interior, and it has been otherwise construed in at least one of the Federal courts. Hibberd v. Slack, (U. S. C. C. S. D. Cal.) 84 Fed. 571. But the interpretation for which the state insists has been long given to it by the Interior Department. It was more than suggested in Gregg v. Colorado, 15 Land Dec. 151, 154, and Rice v. California, 24 Land Dec. 14, 15, was adopted upon full consideration in Re California, 28 Land Dec. 57, and has been uniformly followed ever since. Re New Mexico, 29 Land Dec. 364; Re School Land Opinion, 30 Land Dec. 438; Dunn v. California, 30 Land Dec. 608; Re New Mexico, 34 Land Dec. 599; Re California, 34 Land Dec. 613. In the brief presented by leave of court on behalf of the United States it is set forth that the rule laid down in Re California, 28 Land Dec. supra, is still adhered to by the Land Department; that selections aggregating many thousands of acres have been made in reliance upon it, and that no doubt large expenditures of money have been made in good faith upon the selected lands. It is therefore urged that such construction has become a rule of property. In this situation we should be slow to disturb a ruling of the department of the government to which is committed the administration of public lands. McMichael v. Murphy, 197 U. S. 304, 49 L. ed. 766, 25 Sup. Ct. Rep. 460. Furthermore, the reasoning upon which the departmental interpretation is founded commends itself to our judgment as best calculated to carry out the purposes intended to be accomplished by the statute in question. It follows that the Supreme Court of California erred in its decision of the Federal question involved. With the state questions we have no concern, their ultimate solution being a matter for that court. The judgment is reversed and the cause remanded to that court for further proceedings not inconsistent with this opinion. Reversed.

246.US.199

In a suit in the District Court to set aside testamentary dispositions and adjudge the property to the plaintiffs and partition it among them as heirs, a defendant who, being also an heir, would share in the relief if obtained, should not be aligned as a plaintiff for the purpose of testing jurisdiction by diversity of citizenship, if such defendant be adversely interested as legatee. Under constitution and statutes of Texas, the county court has no equitable jurisdiction of a suit inter parW to annul a disposition in a will and partition the property among the plaintiffs as heirs where title to land is involved and the amount in controversy exceeds $1,000. Under the constitution of Texas, the District Courts of the State have no jurisdiction to annul by an original proceeding the action of a county court in probating a will; and a suit under Stats. Art. 5699 to contest the validity of a will so probated must be brought in the county court and calls for an exercise of original probate jurisdiction. A suit which, in an essential feature, is a suit to annul a will, and which under the state law is in character merely supplemental to proceedings for probate and cognizable only by the probate court, is not within the jurisdiction of the District Court of the United States though diversity of citizenship exist and the requisite jurisdictional amount be in controversy. Affirmed.

The United States District Court dismissed for want of jurisdiction a bill in equity brought by appellants, and certified in substance that the dismissal was based upon the ground that the bill and its exhibits disclosed no infraction of any right arising under the Constitution or laws of the United States; that the matter was cognizable solely in the county court of Collin county, Texas, a court of probate jurisdiction; and that the record disclosed no diversity of citizenship upon which the federal jurisdiction might be based, because it appeared that one of the defendants who should be considered as a plaintiff and the remainder of the defendants were in fact citizens of the same state. The case comes to us by direct appeal, upon the jurisdictional question only, under section 238, Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1157 [Comp. St. 1916, § 1215]). The bill sets up diversity of citizenship and the fact that the amount in controversy exceeds that which is requisite for jurisdiction. It asserts no federal right. It alleges that the plaintiffs (seven in number) are citizens of states other than Texas, while of those named as defendants six (including Cora D. Spencer) are citizens of Texas and residents of Collin county in the Sherman division of the Eastern district of that state, and the seventh is a municipal corporation of that state. The averments of the bill are in substance as follows: That about the year 1866 Moses Hubbard and Mary Jane Hubbard, his wife, settled on a parcel of real estate in Collin county, Texas, and from that time continuously until the dates of their respective deaths lived as citizens and inhabitants of that county, and during their joint lifetime cohabited together as husband and wife; that the said Moses died in 1906, leaving his wife surviving, but no descendant or other heir; that she died in 1914, without children or husband, but leaving her surviving the following heirs at law: A sister, Rachael E. Kirtley, two brothers, Albert E. Sutton and Delana M. Sutton, and the children of a deceased brother, Lewis Sutton, namely, Cora D. Spencer, Elizabeth E. Davis, Ida Krickbaum, George D. Sutton, and Lewis Sutton, Jr., and that afterwards the last named died intestate, unmarried, and without descendants, leaving his mother, Helen M. Marshall, and his sisters and brother, Cora D. Spencer, Elizabeth E. Davis, Ida Krickbaum, and George D. Sutton, as his heirs. The persons named are stated to be the only heirs at law of Mary Jane and Moses Hubbard. All of them are plaintiffs in the suit except Cora D. Spencer, who is made a defendant. The bill alleges, further: That Moses and Mary Jane Hubbard accumulated community property, real and personal (specified in the bill), of the value of about $100,000 situate in Collin and Denton counties, all of which descended to the said Mary Jane as survivor of the community. That in the year 1897 Moses Hubbard, being then 'subject to a mania or unsound idea relative to the memory of his deceased daughter,' attempted a disposal of his wife's community property by a purported will (executed by his wife also and in form a joint and several will), by the terms of which it was attempted to establish in the community property after it should become separate property of Mary Jane Hubbard a certain charitable trust in perpetuity, in the name of the deceased daughter. Plaintiffs allege that this trust was void, for various reasons specified, and that if the instrument had any effect in law it created a naked trust whereof the said Mary Jane Hubbard was sole beneficiary. That afterwards and in the month of January, 1913, the defendan English, joining with himself the defendants Finley, Robinson, and Foster, acting as trustees of the charity, filed a petition in the district court of Collin county against* Mary Jane Hubbard and another, wherein it was alleged that the will of 1897 was a joint will, constituting an agreement binding upon both Moses and Mary Jane Hubbard, under which she received rights, emoluments, and privileges which she would not have had otherwise, and that she had accepted the will, and at all times since its probating had accepted and exercised those rights, privileges, and emoluments, by reason whereof the will was irrevocable by her, and that a trust was thereby created in behalf of the said English, Finley, Robinson, and Foster; that said petition prayed for a citation thereon and judgment that a trust be declared in favor of the petitioners; but plaintiffs herein allege that no citation was issued, that Mary Jane Hubbard had no notice of the proceedings, and that she was deceived into signing a purported waiver and disclaimer which was without consideration and void; that the judgment was never given by any judge or person possessing judicial power within the state of Texas; and that the petition was in effect an application for the construction of the paper as the will of Moses Hubbard, of which the district court had not jurisdiction in the first instance, and for which construction there was then and yet pending in the county probate court of Collin county a petition signed by the said purported trustees whereupon the judgment of the said county court would be binding upon them without the assumption of power in the district court of said county. That in addition to the community property, Mary Jane Hubbard accumulated real and personal property amounting in value to about $18,000 and that in her last sickness, while she was clouded in her intellect and was not of sound or disposing mind or memory, she was unduly influenced by the defendant English to execute an instrument in the form of a will purporting to dispose of her accumulations and separate property, by the 12th paragraph of which she gave and bequeathed all the residue of her property to her niece Cora D. Spencer; that this will 'ought to be annulled and set aside and held for naught; nevertheless, these plaintiffs do not desire to interfere with the distribution made by the defendant, Clayton, purporting to act as executor of said will, but they bring this bill for the purpose of having it annulled to the extent only that the twelfth paragraph * * * be decreed * * * not to be a testamentary disposition of that portion of her separate estate which had once been community estate of the said Moses Hubbard and Mary Jane Hubbard'; and that the community property should be decreed to pass to the plaintiffs pursuant to the statutes of Texas as estate not devised or bequeathed, and should be divided among the plaintiffs in certain proportions specified. The bill avers that the defendant English has usurped and taken possession of seven tracts of real estate and certain moneys, notes, and credits particularly described, and has rented the lands and converted to his own use their annual profit. The prayer is that the defendants English, Finley, Robinson, and Foster account concerning the rents, issues, profits and income of said real estate and personal property; that the joint will of 1897 and every claim, judgment, or right based thereon be set aside and held for naught; that the supposed will signed by Mary Jane Hubbard, dated in 1914, and the twelfth clause thereof be canceled and set aside and annulled; and that the property described in the bill and the earnings and rentals thereof be decreed to be the property of the plaintiffs as heirs at law of Mary Jane Hubbard, deceased, and be partitioned between them. There is also a prayer for general relief. The objects of the suit, in their logical order, appear to be as follows: (1) To treat the joint will of 1897 as inefficacious to dispo e of the community property, either because this became the separate property of Mary Jane Hubbard at her husband's death, or because of Moses Hubbard's mental incapacity or the illegality of the terms of the trust; (2) to set aside a judgment said to have been obtained in the Collin county district court by defendant English and others, devisees under the joint will, establishing their title to the community property as against Mary Jane Hubbard; (3) to have her will annulled at least to the extent that the twelfth paragraph, which gives and bequeaths all the residue of her property to Cora D. Spencer, be decreed not to be a testamentary disposition of that portion of the estate of testatrix which had been community property; and (4) that the community property, having thus been shown to have been separate estate of Mary Jane Hubbard and not to have been devised by her, be decreed to have passed to the plaintiffs as her heirs at law and be partitioned between them. Upon this statement, it will be apparent that the court below erred in holding, as it did, that the defendant Cora D. Spencer should be treated as one of the plaintiffs and aligned with them for the purpose of determining the question of diversity of citizenship. Provided plaintiffs attained their first three objects, her interest would be the same as theirs with respect to the prayer for partition; but before this result could be reached plaintiffs must prevail as to their third object, and with respect to this her interest was altogether adverse to theirs. Therefore she was properly made a party defendant, that being her attitude towards the actual and substantial controversy. See Removal Cases, 100 U. S. 457, 468, 25 L. Ed. 593; Pacific R. R. v. Ketchum, 101 U. S. 289, 298, 25 L. Ed. 932; Barney v. Latham, 103 U. S. 205, 211, 26 L. Ed. 514; Harter v. Kernochan, 103 U. S. 562, 566, 26 L. Ed. 411; Helm v. Zarecor, 222 U. S. 32, 36, 32 Sup. Ct. 10, 56 L. Ed. 77. This brings us to the question whether the subject matter of the suit is within the jurisdiction of a court of the United States. By a series of decisions in this court it has been established that since it does not pertain to the general jurisdiction of a court of equity to set aside a will or the probate thereof, or to administer upon the estates of decedents in rem, matters of this character are not within the ordinary equity jurisdiction of the federal courts; that as the authority to make wills is derived from the states, and the requirement of probate is but a regulation to make a will effective, matters of strict probate are not within the jurisdiction of courts of the United States; that where a state, by statute or custom, gives to parties interested the right to bring an action or suit inter partes, either at law or in equity, to annul a will or to set aside the probate, the courts of the United States, where diversity of citizenship and a sufficient amount in controversy appear, can enforce the same remedy, but that this relates only to independent suits, and not to procedure merely incidental or ancillary to the probate; and, further, that questions relating to the interests of heirs, devisees, or legatees, or trusts affecting such interests, which may be determined without interfering with probate or assuming general administration, are within the jurisdiction of the federal courts where diversity of citizenship exists and the requisite amount is in controversy. Broderick's Will, 21 Wall. 503, 509, 512, 22 L. Ed. 599; Ellis v. Davis, 109 U. S. 485, 494, 3 Sup. Ct. 327, 27 L. Ed. 1003, et seq.; Farrell v. O'Brien, 199 U. S. 89, 110, 25 Sup. Ct. 727, 50 L. Ed. 101; Waterman v. Canal-Louisiana Bank Co., 215 U. S. 33, 43, 30 Sup. Ct. 10, 54 L. Ed. 80. It is the contention of appellants that the United States District Court had original jurisdiction of this cause (there being diversity of citizenship and a sufficient amount in controversy) because jurisdiction over a suit in equity of the same character would have existed in the co nty or district courts of the state. In order to test this, we must consider the nature and extent of the jurisdiction of the courts referred to, as established by the Constitution of Texas and statutes passed in pursuance thereof (Vernon's Sayles' Tex. Civ. Stats. 1914), the material provisions of which are as follows: Under Const. art. 5, § 6, and Stats. arts. 3206, 1763, 1764, 1766, and 1771, the county court has the general jurisdiction of a probate court, with power to probate wills, grant letters testamentary or of administration, settle accounts of executors and administrators, etc.; exclusive original jurisdiction in civil cases when the matter in controversy exceeds $200 and does not exceed $500, and concurrent jurisdiction with the district court when the matter in controversy exceeds $500 and does not exceed $1,000, but no jurisdiction of suits for the recovery of land or for the enforcement of liens upon land; and general authority to hear and determine any case, either of law or equity, but subject to certain limitations including those just mentioned. Under Const. art. 5, § 8, and Stats. arts. 1705, 1706, 1712, and 3207, the district court has 'appellate jurisdiction and general control in probate matters over the county court established in each county, for the probating of wills, granting letters testamentary or of administration, settling the accounts of executors and administrators,' etc.; also 'original jurisdiction and general control over executors and administrators under such regulations as may be prescribed by law'; original jurisdiction of all suits for the trial of title to land and for the enforcement of liens thereon, and of all suits, without regard to any distinction between law and equity, when the matter in controversy exceeds $500; and, subject to limitations not now pertinent, general jurisdiction over any cause cognizable by courts either of law or equity. It will be seen that the contention must be overruled at once, so far as concerns the equitable jurisdiction of the county court, because in the case before us the title to land is involved and the matter in controversy exceeds $1,000. The jurisdiction of the district court is not thus limited, and, under local decisions (Japhet v. Pullen, 63 Tex. Civ. App. 157, 133 S. W. 441, 445, and cases cited), it may be assumed that an independent suit in equity could be entertained by that court, and therefore—under the decisions of this court to which reference has been made—might be brought in the United States District Court, for the purpose of construing the joint will of Moses and Mary Jane Hubbard as inefficacious to dispose of the community property, and to set aside, for fraud or on other grounds, the judgment recovered by the defendants English and others against Mary Jane Hubbard establishing their title to that property; and that, if the title of complainants as heirs at law of Mary Jane Hubbard could thus be shown, the jurisdiction to partition the property would follow as of course. But, as already pointed out, even could complainants succeed in showing that Mary Jane Hubbard at the time of her death was entitled to the community property, her will giving all the residue of her property to Cora D. Spencer still stands in the way of their succeeding to it as heirs at law, and hence their prayer to have that will annulled with respect to the residuary clause is essential to their right to any relief in the suit. But it is established by repeated decisions of the Supreme Court of Texas that under the present Constitution the district courts have no jurisdiction to annul by an original proceeding the action of a county court in probating a will, their jurisdiction in the premises being confined to a review by appeal or certiorari, which are in effect but a continuation of the probate proceedings. It is further held that under a statutory provision (article 5699) reading, 'Any person interested in any will which shall have been probated under the laws of thi state may institute suit in the proper court to contest the validity thereof, within four years after such will shall have been admitted to probate, and not afterward,' such a suit must be instituted in the court in which the will was admitted to probate, that is to say, in the county court and that it calls for an exercise of original probate jurisdiction. Franks v. Chapman, 60 Tex. 46; Franks v. Chapman, 61 Tex. 576, 579, 582, 583; Heath v. Layne, 62 Tex. 686; Fisher v. Wood, 65 Tex. 199, 204. And see Dew v. Dew, 23 Tex. Civ. App. 676, 57 S. W. 926; Hilgers v. Hilgers, 159 S. W. 851. The present suit being, in an essential feature, a suit to annul the will of Mary Jane Hubbard, and a proceeding of this character being by the laws of Texas merely supplemental to the proceedings for probate of the will and cognizable only by the probate court, it follows from what we have said that the controversy is not within the jurisdiction of the courts of the United States. Decree affirmed.

244.US.459

A private party cannot maintain a suit for an injunction under § 4 of the Sherman Anti-Trust Law. Such action upon the part of a labor union as is involved in this case is not subject to be enjoined under the laws of New York in a private suit. 214 Fed. Rep. 82, affirmed.

This is a bill in equity brought by corporations, of states other than New York, engaged in the manufacture of doors, sash, etc., in open shops, against officers and agents of the United Brotherhood of Carpenters and Joiners of America and of the New York branch of the same, certain union manufacturers of doors, sash, etc., members of the Manufacturing Woodworkers' Association, and many master carpenters, members of the Master Carpenters' Association, whose business is to install such products in buildings. The bill was dismissed by the district court (212 Fed. 259), and the decree was affirmed by the circuit court of appeals (130 C. C. A. 522, 214 Fed. 82). The bill alleges a conspiracy of the members of the Brotherhood and the New York branch to prevent the exercise of the trade of carpenters by anyone not a member of the Brotherhood, and to prevent the plaintiffs and all other employers of carpenters not such members from engaging in interstate commerce and selling their goods outside of the state where the goods are manufactured, and it sets out the usual devices of labor unions as exercised to that end. In 1909 the Master Carpenters, coerced by the practical necessities of the case, made an agreement with the New York branch, accepting a previously established joint arbitration plan to avoid strikes and lockouts. This agreement provides that 'there shall be no restriction against the use of any manufactured material except nonunion or prison-made;' the arbitration plan is confined to shops that use union labor, and the employers agree to employ union labor only. The unions will not erect material made by nonunion mechanics. Another agreement between the Manufacturing Woodworkers' Association, the Brotherhood, and the New York branch, also adopts the plan of arbitration; the labor unions agree that 'none of their members will erect or install nonunion or prison-made material,' and the Woodworkers undertake that members of the Brotherhood shall 'be employed exclusively in the mills of the Manufacturing Woodworkers' Association.' It is found that most of the journeymen carpenters in Manhattan and part of Brooklyn belong to the Brotherhood, and that, owing to their refusal to work with nonunion men, and to employers finding it wise to employ union men, it is very generally impracticable to erect carpenter work in those places except by union labor. It also is found that, owing to the above provisions as to nonunion material, the sale of the plaintiffs' goods in those places has been made less. The workmen have adopted the policy complained of without malice toward the plaintiffs, as part of a plan to bring about 'a nation-wide unionization in their trade.' An injunction is asked against the defendants (other than the Master Carpenters) conspiring to refuse to work upon material made by the plaintiff, because not made by union labor; or enforcing by-laws intended to prevent working with or upon what is called unfair material; or inducing persons to refuse to work for persons purchasing such material, or taking other enumerated steps to the same general end; or conspiring to restrain the plaintiffs' interstate business in order to compel them to refuse to employ carpenters not members of the Brotherhood. It is prayed further that the provision quoted above from the Master Carpenters' agreement and another ancillary one be declared void and the parties enjoined from carrying them out. No other or alternative relief is prayed. The ground on which the injunction was refused by the district court was that, although it appeared that the agreements above mentioned were parts of a comprehensive plan to restrain commerce among the states, the conspiracy was not directed specially against the plaintiffs and had caused them no special damage, different from that inflicted on the public at large. The circuit court of appeals, reserving its opinion as to whether any agreement or combination contrary to law was made out, agreed with the judge below on the ground that no acts directed against the plaintiffs personally were shown. In the opinion of a majority of the court, if the facts show any violation of the Act of July 2, 1890, chap. 647, 26 Stat. at L. 209, Comp. Stat. 1916, § 8820, a private person cannot maintain a suit for an injunction under § 4 of the same (Minnesota v. Northern Securities Co. 194 U. S. 48, 70, 71, 48 L. ed. 870, 880, 881, 24 Sup. Ct. Rep. 598); and especially such an injunction as is sought; even if we should go behind what seems to have been the view of both courts below, that no special damage was shown, and reverse their conclusion of fact. No one would maintain that the injunction should be granted to parties not showing special injury to themselves. Personally, I lay those questions on one side because, while the Act of October 15, 1914, chap. 323, § 16, 38 Stat. at L. 730, 737, Comp. Stat. 1916, §§ 8835a, 8835o, establishes the right of private parties to an injunction in proper cases, in my opinion it also establishes a policy inconsistent with the granting of one here. I do not go into the reasoning that satisfies me, because upon this point I am in a minority. As this court is not the final authority concerning the laws of New York, we say but a word about them. We shall not believe that the ordinary action of a labor union can be made the ground of an injunction under those laws until we are so instructed by the New York court of appeals. National Protective Asso. v. Cumming, 170 N. Y. 315, 58 L.R.A. 135, 88 Am. St. Rep. 648, 63 N. E. 369. Certainly the conduct complained of has no tendency to produce a monopoly of manufacture or building, since the more successful it is the more competitors are introduced into the trade. Cases like Kellogg v. Sowerby, 190 N. Y. 370, N. E. 47, concerning conspiracies between railroads and elevator companies to prevent competition, seem to us very clearly not to have been intended to overrule the authority that we cite, and not to have any bearing on the present point. Decree affirmed.

244.US.499

Equity has jurisdiction to enjoin unlawful tax proceedings, which cloud the plaintiff's title and threaten irreparable injury and a multiplicity of suits. The principle settled in Ex parte Young, 209 U. S. 123, to the effect that a suit to restrain state officials from enforcing an unconstitutional state statute in violation of plaintiff's rights and to his irreparable damage is not a suit against the State, applies also when the statute itself is constitutional but the attempted administration of it is not. In a case in which the jurisdiction of the District Court is properly invoked upon a substantial controversy arising under the Constitution of the United States, the jurisdiction of that court, and of this court on appeal, extends to the determination of all questions involved, including questions of state law, irrespective of the disposition that may be made of the federal question and of whether it be found necessary to decide it at all. Where the relief to which plaintiff might be entitled under the Fourteenth Amendment is the same as that allowed him by the federal court upon a proper construction and application of the state constitution and laws, the question whether the acts complained of violate the Amendment need not be decided. Under the so-called franchise tax provisions of Kentucky (Ky. Stats., §§ 4077-4079) relating to railroad and other corporations exercising special or exclusive privileges or franchises, what is termed the "capital stock of the corporation" (§ 4079) includes its entire property, tangible and intangible, and what is termed a "tranchise tax" is nothing else than a tax upon the intangible property of the corporation in Kentucky. Somble, that no provision is made by the Kentucky statutes for taxing franchises under §§ 174 and 181 of the state constitution. The provision in § 182 of the Kentucky Constitution, permitting the General Assembly to provide by law "how railroads and railroad property shall be assessed, and how taxes thereon shall be collected," relates only to the mode of assessment and collection and does not authorize a departure from the- uniformity in valuation and rate required by §§ 171 and 174. Discrimination resulting from an assessnent.of the intangible property of a railroad corporation by the Board of Valuation and Assessment at 75 per cent. of its actual value while the property of individuals and other classes of corporations, taxed at the same rate, is generally and systematically assessed by other and independent taxing authorities of the State at not more than 60 per cent. of actual value, is violative of the provisions of the Kentucky Constitution requiring uniform taxation in proportion to value and an identical rate as between corporate and individual property (§§ 171, 174); and this has been recognized by the Supreme Court of the State. A decision of the state Supreme Court holding that such discrimination is not subject to correction in the courts of the State, and that the equality and uniformity provisions of the state constitution may be enforced only by selection of proper assessing officers, is not binding upon the federal courts. The courts of the United States, their jurisdiction being properly invoked, may afford relief against discriminatory state taxation, contravening the state constitution, when the discrimination results from divergent action of different assessing boards whose assessments are not subject to any process of equalization established by the State, and where the diverse results are the outcome, not of express agreement, but of intentional, systematic and persistent undervaluation by one body of officials, presumably known to and ignored by the other body, so that, in effect, the two bodies act in concert. Sections 171 and 174 of the Constitution of Kentucky require uniform taxation according to value, and an identical rate as between corporate and individual property; and the provision of § 174 that "all corporate property shall pay the same rate of taxation paid by individual property" means that not only the percentage of the rate, but the basis of the valuation, shall be the same. Uniformity in taxing implies equality in the burden of taxation; and this equality cannot exist without uniformity in the basis of assessment, as well as in the rate of taxation. The principal if not the sole reason for adopting "fair cash value" as the standard for valuations is as a convenient means of securing equal taxation, and, since, when the standard is systematically departed from in respect of certain classes of property, its observance in respect of others (the tax rate being uniform) would serve to frustrate its very object, it follows that, in such cases, the duty to assess at full value is not supreme but yields to the duty to avoid discrimination. Section 162, Kentucky Statutes, does not afford an adequate legal remedy against discriminatory assessments for both state and local taxes, because, as construed by the Kentucky Court of Appeals, it does not authorize correction of erroneous assessments, and also because it applies only to state, and not to local, taxes. Singer Sewing Machine Co. v. Benedict, 229 U. S. 481, distinguished. When the bill seeks relief as to state and local taxes based on the same assessment, and an adequate legal remedy exists as to the former class only, equity will retain and dispose of the entire case, doing justice completely and avoiding multiplicity of suits. A railroad company whose intangible property is assessed by the Board of Valuation and Assessment, and which is subjected to discrimination through undervaluation of other property by county assessors, is not afforded an adequate remedy through §§ 4115-4120, 4123, Ky. Stats., providing for readjustment of the latter class of assessments through the County Board of Supervisors. Affirmed.

These are companion cases, involving similar questions, were argued together, and may be disposed of in a single opinion. Appellees are corporations organized under the laws of the state of Kentucky, one of which (the Louisville & Interurban Railroad Company) operates, as a common carrier, passenger and freight lines of railroad in three of the counties of that state and in various municipalities and taxing districts in those counties; while the other (the Louisville Railway Company) operates, as a common carrier, passenger and freight lines of street railway in the city of Louisville and in Jefferson county, outside of that city. They filed their several bills of complaint in the district court against Henry M. Bosworth and others, then constituting the Board of Valuation and Assessment of the State of Kentucky (Bosworth being also auditor of public accounts), and against the attorney general of the state and his assistants, suing them all, both individually and in their official capacities, for an injunction to restrain steps looking to the certification and enforcement of what are called 'franchise taxes' attempted to be assessed upon the respective complainants for the year 1915 under § 4077 and succeeding sections of the Kentucky Statutes, upon the ground of discrimination in the valuation of the franchises; they having been assessed, as alleged, on the basis of 75 per cent of actual values, while taxable property in general was assessed systematically and intentionally at not more than 52 per cent of actual values. There being no diversity of citizenship, the jurisdiction of the district court was invoked, under the first paragraph of § 24, Judicial Code [36 Stat. at L. 1091, chap. 231, Comp. Stat. 1916, § 991 (1)], upon the ground that the suits arose under the 'due process' and 'equal protection' clauses of the 14th Amendment of the Constitution of the United States, and that the matter in dispute in each case was in excess of the jurisdictional amount. Plaintiffs also relied upon certain provisions of the Constitution of the state that require uniform taxation of property according to value and at the same rate for corporate as for individual property. By supplemental bills the successors in office of the original defendants were made parties, in both their individual and official capacities. In each case there was a motion to dismiss, equivalent to a general demurrer to the bill, upon the following grounds: (1) that there was no Federal question involved, and therefore the court was without jurisdiction; (2) that the bills stated no cause of action under the laws of the state or of the United States; (3) that the plaintiffs had an adequate remedy at law; (4) that the bills showed no equity on their face; and (5) that the suits were suits against the state of Kentucky. After a hearing, the court overruled these motions, defendants declined to plead further and made no objection to the submission of the cases for final decrees, the allegations of the bills, not being denied, were taken as true, and final decrees were made granting relief against the enforcement of the disputed assessments, and restraining the imposition of franchise taxes upon plaintiffs for the year 1915, based on assessments to their franchises at greater values than those conceded in the respective bills of complaint, which were 60 per cent of actual values. The court, in reaching this conclusion, followed its own previous decisions in Louisville & N. R. Co. v. Bosworth, 209 Fed. 380, 230 Fed. 191. Defendants appealed directly to this court, under § 238, Judicial Code [36 Stat. at L. 1157, chap. 231, Comp. Stat. 1916, § 1215]. The cases were submitted here at the same time with cognate cases this day decided, viz.: Nos. 778 and 779, Louisville & N. R. Co. v. Greene [244 U. S. 522, 61 L. ed. ——, 37 Sup. Ct. Rep. 683] and Nos. 642-645, Illinois C. R. Co. v. Greene [244 U. S. 555, 61 L. ed. ——, 37 Sup. Ct. Rep. 697]. In the present cases, the assignments of error and the argument for appellants are based upon the refusal to dismiss the bills of complaint, no criticism being made as to the particular relief granted by the final decrees. The bills are substantially identical in form, and an outline of the one filed by the Louisville & Interurban Railroad Company (No. 617) will suffice. Following a prefatory statement of jurisdictional matters and a description of the parties, it avers in substance that the State Board of Valuation and Assessment, having ascertained by a process not here criticized what, in their judgment, was the fair cash value of plaintiff's 'capital stock,' took 75 per cent of the result, and thus fixed the valuation of the capital stock for the purposes of the assessment for the year 1915 at $2,250,000; deducted therefrom the amount of plaintiff's tangible property assessed for state taxes,—$813,619,—thus fixing the value of the 'franchise' at $1,436,381; and ascertained the state taxes thereon as follows: state tax, generally, at 50 cents, $7,181.90; state road tax, at 5 cents, $718.19; a total of $7,900.09. That plaintiff protested, but to no avail. That the assessment subjects plaintiff to state taxes upon the whole of its capital stock, and to county taxes in the three counties on proportionate parts of it, and to additional taxes in the cities and other municipalities and taxing districts through which its railroad runs. Plaintiff avers that for many years past, including the taxing year 1914-1915, the taxes for which are here in controversy, the local assessors and other assessing officers of the state of Kentucky have habitually, intentionally, systematically, and generally assessed the property of individuals and of corporations within their sphere of duty, comprising 80 per cent of the total taxable property, at not exceeding 52 per cent of its fair cash value, estimated at the price which it would bring at a fair and voluntary sale; that the fact of such systematic assessment upon that basis annually for many years past has been a matter of public notoriety in the state; 'whereas the said Bosworth, Rhea, and Crecilius, acting as the State Board of Valuation and Assessment, after ascertaining what, in their judgment, was the fair cash value of plaintiff's capital stock, reduced said value only to the extent of taking 75 per cent thereof, instead of taking 52 per cent, the average rate applied by assessing officers to the vast body of property in this state.' It is averred that Bosworth, Rhea, and Crecilius have denied to plaintiff the benefit of equalization, and that thereby plaintiff has been deprived of its property without due process of law and denied the equal protection of the laws, in violation of the 14th Amendment and the Constitution and laws of the state; that plaintiff has paid the state and county taxes upon its tangible property for the year in controversy so far as they have been demanded, and also has paid the state taxes upon its franchise as arrived at by taking the value of its capital stock and taking 60 per cent of such valuation and deducting therefrom the valuation of plaintiff's tangible property; that Bosworth, Rhea, and Crecilius, unless enjoined, will certify to the county clerks of the three counties mentioned the amounts claimed to be due to said counties and the taxing districts thereof by reason of the valuation they have assumed to make as above stated; the county clerks will thereupon certify said assessments respectively to the tax collectors for the said counties and the taxing districts therein for collection; and said collecting officers will proceed to make collections and to institute unwarranted, vexations, and multitudinous suits and proceedings at law against plaintiff; that unless enjoined the said Bosworth or his deputy will enter in account with the treasurer of the state the amount of taxes based upon the valuation aforesaid, and the said attorney general and his assistants will institute civil or penal actions or peocure indictments against plaintiff, based upon its supposed delinquency in the payment of taxes; and that the unauthorized and illegal valuation constitutes a cloud and, as claimed by defendants, constitutes a lien upon plaintiff's property in the commonwealth, and unless defendants are enjoined numerous and vexatious suits will be instituted to enforce or foreclose such lien. There is an appropriate prayer for injunction and for general relief. It does not appear, from any express averment in the bills, that other property owners have been subject to discrimination precisely like that of which plaintiffs complain; but the entire argument for defendants, in these cases and others argued with them, proceeds upon the theory that the Board of Valuation and Assessment treated all taxpayers alike over whom they had jurisdiction; hence, it is fair to assume that plaintiff's franchises were assessed on the same basis of valuation applied by the Board to other property generally that came within the range of their official duty. (1) It is convenient to state at this point what, indeed, is not controverted, that, if the suits be otherwise maintainable, the last-mentioned averments of the bills show sufficient special grounds for invoking the equity jurisdiction, under the rule established by repeated decisions of this court. Dows v. Chicago, 11 Wall. 108, 110, 112, 20 L. ed. 65-67; Hannewinkle v. Georgetown, 15 Wall. 547, 21 L. ed. 231; Union P. R. Co. v. Cheyenne (Union P. R. Co. v. Ryan) 113 U. S. 516, 525, 526, 28 L. ed. 1098, 1101, 1102, 5 Sup. Ct. Rep. 601; Ohio Tax Cases, 232 U. S. 576, 587, 58 L. ed. 738, 743, 34 Sup. Ct. Rep. 372. (2) A fundamental contention of appellants is that the present actions, brought to restrain them in respect of the performance of duties they are exercising under the authority of the state of Kentucky, are in effect suits against the state. Questions of this sort have arisen many times in this court, but the matter was set at rest in Ex parte Young, 209 U. S. 123, 150, 155, 52 L. ed. 714, 725, 727, 13 L.R.A.(N.S.) 932, 28 Sup. Ct. Rep. 441, 14 Ann. Cas. 764, where it was held that a suit to restrain a state officer from executing an unconstitutional statute, in violation of plaintiff's rights and to his irreparable damage, is not a suit against the state, and that 'individuals who, as officers of the state, are clothed with some duty in regard to the enforcement of the laws of the state, ans who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action.' In repeated decisions since Ex parte Young, that case has been recognized as setting these questions at rest. Western U. Teleg. Co. v. Andrews, 216 U. S. 165, 166, 54 L. ed. 430, 431, 30 Sup. Ct. Rep. 286; Herndon v. Chicago, R. I. & P. R. Co. 218 U. S. 135, 155, 54 L. ed. 970, 976, 30 Sup. Ct. Rep. 633; Philadelphia Co. v. Stimson, 223 U. S. 605, 621, 56 L. ed. 570, 577, 32 Sup. Ct. Rep. 340; Home Teleph. & Teleg. Co. v. Los Angeles, 227 U. S. 278, 293, 57 L. ed. 510, 517, 33 Sup. Ct. Rep. 312; Truax v. Raich, 239 U. S. 33, 37, 60 L. ed. 131, 133, L.R.A.1916D, 545, 36 Sup. Ct. Rep. 7. And see Hopkins v. Clemson Agri. College, 221 U. S. 636, 642-644, 55 L. ed. 890, 894, 895, 35 L.R.A.(N.S.) 243, 31 Sup. Ct. Rep. 654. The principle is not confined to the maintenance of suits for restraining the enforcement of statutes which, as enacted by the state legislature, are in themselves unconstitutional. 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, was a case not of an unconstitutional statute, but of confiscatory, and therefore unconstitutional, action taken by a state commission under a constitutional statute. The court, by Mr. Justice Brewer, said: 'Neither will the constitutionality of the statute, if that be conceded, avail to oust the Federal court of jurisdiction. A valid law may be wrongfully administered by officers of the state, and so as to make such administration an illegal burden and exaction upon the individual. A tax law, as it leaves the legislative hands, may not be obnoxious to any challenge, and yet the officers charged with the administration of that valid tax law may so act under it in the matter of assessment or collection as to work an illegal trespass upon the property rights of the individual.' In Raymond v. Chicago Union Traction Co. 207 U. S. 20, 38, 52 L. ed. 78, 88, 28 Sup. Ct. Rep. 7, 12 Ann. Cas. 757, the court upheld the right of action in a Federal court to restrain the collection of taxes that had been assessed at a different rate and by a different method from that employed with respect to other taxpayers of the same class, in defiance of the provisions of a constitutional statute that required equalization, and also in denial of the equal protection of the laws within the meaning of the 14th Amendment. (3) The contention of plaintiffs, set forth in their respective bills of complaint, that the action of the Board of Valuation and Assessment in making the assessments under consideration and the threatened action of defendants in respect of carrying those assessments into effect constituted action by the state, and if carried out would violate the equal protection provision of the 14th Amendment, presents, without question, a real and substantial controversy under the Constitution of the United States, which (there being involved a sum and value in excess of the jurisdictional amount) conferred jurisdiction upon the Federal court, irrespective of the citizenship of the parties. This being so, the jurisdiction of that court extended, and ours on appeal extends, to the determination of all questions involved in the case, including questions of state law, irrespective of the disposition that may be made of the Federal question, or whether it be found necessary to decide it at all. 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. 738, 743, 34 Sup. Ct. Rep. 372. (4) Taking up first the question of state law, we should at the outset briefly consider the pertinent provisions of the Constitution and laws of the state. By § 171 of the Constitution it is prescribed: 'The general assembly shall provide by law an annual tax, which, with other resources, shall be sufficient to defray the estimated expenses of the commonwealth for each fiscal year. Taxes shall be levied and collected for public purposes only. They shall be uniform upon all property subject to taxation within the territorial limits of the authority levying the tax; and all taxes shall be levied and collected by general laws.' By § 172: 'All property, not exempted from taxation by this Constitution, shall be assessed for taxation at its fair cash value, estimated at the price it would bring at a fair voluntary sale; and any officer, or other person authorized to assess values for taxation, who shall commit any wilful error in the performance of his duty, shall be deemed guilty of misfeasance, and upon conviction thereof shall forfeit his office, and be otherwise punished, as may be provided by law.' By § 174: 'All property, whether owned by natural persons or corporations, shall be taxed in proportion to its value, unless exempted by this Constitution; and all corporate property shall pay the same rate of taxation paid by individual property. Nothing in this Constitution shall be construed to prevent the general assembly from providing for taxation based on income, licenses, or franchises.' Section 181 provides as follows: 'The general assembly may, by general laws only, provide for the payment of license fees on franchises, stock used for breeding purposes, the various trades, occupations, and professions, or a special or excise tax;' etc. And § 182 declares: 'Nothing in this Constitution shall be construed to prevent the general assembly from providing, by law, how railroads and railroad property shall be assessed and how taxes thereon shall be collected.' Under statutory provisions, property is valued for purposes of taxation, both state and local, in the following manner: All property in the state, real and personal, tangible and intangible, except the property of railroads, the franchises of certain corporations, shares of stock in banks, and distilled spirits, is assessed by county assessors, subject to the review of county boards of supervisors and a State Board of Equalization. Tangible railroad property is assessed by the State Railroad Commission. Bank shares and distilled spirits are assessed by the Board of Valuation and Assessment, composed of the auditor of public accounts, the treasurer of state, and the secretary of state. And, by § 4077, Ky. Stat. it is provided: 'Every railway company or corporation . . . also every other corporation, company or association having or exercising any special or exclusive privilege or franchise not allowed by law to natural persons, or performing any public service, shall, in addition to the other taxes imposed on it by lae, annually pay a tax on its franchise to the state, and a local tax thereon to the county, incorporated city, town or taxing district, where its franchise may be exercised.' The values of such franchises (except as to turnpike companies, otherwise provided for) are to be fixed by the Board of Valuation and Assessment. By § 4078, verified statements are to be delivered annually to the auditor, showing certain facts respecting the company, including the amount of capital stock, with its par and real value, and the highest price at which it was sold within twelve months preceding, the amount of surplus funds and undivided profits, the value of all other assets, the amount of indebtedness, the gross or net earnings or income, the amount and kind of tangible property in the state, the fair cash value thereof, estimated at the price it would bring at a fair voluntary sale, and such other facts as the auditor may require. Section 4079 provides that 'where the line or lines of any such corporation, company or association extend beyond the limits of the state or county,' the statement shall, in addition to other facts, show the length of entire lines operated, owned, leased or controlled in the state and in each county, incorporated city, town, or taxing district, and the entire line operated, etc., elsewhere. There is a proviso that the Board, from the statement 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.'1 It has been held by the Kentucky court of appeals, and by this court, that the 'capital stock of the corporation,' here referred to, includes its entire property, of every kind and description, tangible and intangible, and that what is called a 'franchise tax' is nothing else than a tax upon 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. In view of these decisions, no serious attempt is made to sustain the assessments in question as a taxation of franchises, under §§ 174 or 181 of the Constitution. There seems to be no provision of law for taxing franchises under either of those sections. Marion Nat. Bank v. Burton, 121 Ky. 876, 885, 10 L.R.A.(N.S.) 947, 90 S. W. 944. To recapitulate: Real estate and personal property of individuals and of nonfranchise corporations are assessed by the county assessors, both for state and county purposes; tangible railroad property by the Railroad Commission; bank shares, distilled spirits, and corporate franchises by the Board of Valuation and Assessment. It is important to be observed that the latter board has no authority or control over the actions of the county assessors, the county boards of supervisors, or the State Board of Equalization; and, on the other hand, these officials have no authority or control over the actions of the Board of Valuation and Assessment. Nor is there any statutory provision for equalizing assessments, as between the property which is assessed by the county assessors and that which is assessed by the Railroad Commission and the Board of Valuation and Assessment. It hardly is open to serious dispute that if the legislature had confided to a single body the determination of the basis of assessment of the real estate and personal property of individuals and nonfranchise corporations, on the one hand, and of the tangible and intangible property of public service corporations, on the other, a valuation of property of the latter class on the basis of 75 per cent of its actual value, while property of the former class was assessed systematically at 52 per cent, or not more than 60 per cent, of its actual value, would be inconsistent with the sections we have quoted from the Kentucky Constitution. For the provision of § 182, permitting the general assembly to provide by law 'how railroads and railroad property shall be assessed, and how taxes thereon shall be collected,' relates merely to the mode of assessment and collection, and manifestly does not permit a departure from the requirements of uniform taxation in proportion to value, and an identical rate as between corporate and individual property, contained in §§ 171 and 174. The latter section permits the general assembly to provide for taxation based on income, licenses, or franchises. But, as already stated, at least at the time these suits arose, there was no provision of law for a taxation of franchises in any other sense than that already explained. Marion Nat. Bank v. Burton, supra. The fact should be emphasized that the Kentucky court of last resort, far from holding that discrimination such as is here complained of is in accord with the Constitution and laws of the state, has recognized distinctly that it is not; but has felt constrained to hold that, under circumstances similar to those of the present cases, there is no redress in the courts of the state; and that the constitutional provisions for equality and uniformity are capable of being put into execution only through the selection of proper assessing officers. Louisville R. Co. v. Com. 105 Ky. 710, 719, 49 S. W. 486. This, while admitting the wrong, merely denies judicial relief, and is not binding upon the Federal courts. In Cummings v. Merchants' Nat. Bank, 101 U. S. 153, 25 L. ed. 903, the bank brought its bill in equity in a circuit court of the United States to enjoin the collection of a tax assessed against the shares of its stockholders not because of inconsistency with the act of Congress relating to the taxation of such shares (Rev. Stat. § 5219, Comp. Stat. 1916, § 9784), but upon the ground of a violation of the Constitution and laws of the state of Ohio, which required the taxation of all moneys, credits, and investments, and also all real and personal property, to be by a uniform rule and according to its true value in money. The supreme court of the state (Exchange Bank v. Hines, 3 Ohio St. 1, 15) had held that they required uniformity not only in the rate of taxation, but also in the mode of the assessment upon the taxable valuation. But the legislature had adopted a system of valuation under which there were different bodies acting independently of one another in regard to different classes of property in the process of estimating values for taxation, with one Board of Equalization having charge of the valuation of the real estate of the whole state once in every ten years, another having charge of the valuation of railroad property every year, a third of the valuation of shares of incorporated banks every year, but with not common superior to secure equalization as between the different classes of property. The evidence showed that in the county where complainant's bank was situate the assessors of real property, the assessors of personal property, and the county auditor (who was the assessing officer for bank shares) concurred in establishing a rule of valuation by which real and personal property, except money, were assessed at one third of actual values, and money or invested capital at six tenths of its value; that this rule was followed; and that for the year in question the State Board of Equalization increased the assessment upon the bank shares to their full cash value. This court held (p. 157) that 'when a rule or system of valuation is adopted by those whose duty it is to make the assessment, which is designed to operate unequally and to violate a fundamental principle of the [state] Constitution, and when this rule is applied not solely to one individual, but to a large class of individuals or corporations, that equity may properly interfere to restrain the operation of this unconstitutional exercise of power;' and that this being the case made by the bill, and being supported by the evidence, while the statute could not be declared unconstitutional, the discriminatory rule must be held void and the injustice produced under it remedied so far as the judicial power could give remedy. (5) Is discriminatory taxation, contravening the express requirements of the state Constitution, beyond redress in the courts of the United States, their jurisdiction being properly invoked, when the discrimination results from divergent action by different assessing boards whose assessments are not subject to any process of equalization established by the state, and where the diverse results are the outcome, not, indeed, of any express agreement among the officials concerned, but of intentional, systematic, and persistent undervaluation by one body of officials, presumably known to and ignored by the other body, so that in effect the two bodies act in concert? In our opinion, the answer must be in the negative. Appellants' contention that there is no remedy by injunction against the assessments imposed by the Board of Valuation and Assessment places undue emphasis upon the requirement contained in § 172 of the Constitutions, that all property shall be assessed for taxation at its fair cash value, estimated at the price it would bring at a fair voluntary sale,—a provision that is repeated in § 4020, Ky. Stat., which deals with the duties of assessing officers. The averments of the bills of complaint, admitted on this record, are that the Board did not assess the property of plaintiffs at fair cash value, but at 75 per cent thereof; and that this resulted in unequal taxation only because the county assessments were at a still lower percentage. But, laying this aside, and assuming for the moment that the Board performed its duty strictly in accordance with § 172, by assessing plaintiff's properties at fair cash value, what is the effect of that action, in view of the systematic undervaluations by the assessing officers charged with valuing other classes of property? This question cannot be answered without considering the relation of § 172 to §§ 171 and 174, which require uniform taxation according to value, and an identical rate as between corporate and individual property. The operation and effect of such a taxing system, both in respect to raising the necessary moneys and in distributing the burden among the taxpayers, depend upon two considerations: first, the rate of taxation, and, secondly, the basis of valuation of the property to be taxed. Plainly, the provision of § 174 that 'all corporate property shall pay the same rate of taxation paid by individual property' means that not only the percentage of the rate, but the basis of the valuation, shall be the same. 'Taxing by a uniform rule requires uniformity not only in the rate of taxation, but also uniformity in the mode of the assessment upon the taxable valuation. Uniformity in taxing implies equality in the burden of taxation; and this equality of burden cannot exist without uniformity in the mode of the assessment, as well as in the rate of taxation.' Exchange Bank v. Hines, 3 Ohio St. 1, 15, quoted in Cummings v. Merchants' Nat. Bank, 101 U. S. 153, 158, 25 L. ed. 903, 905. It is equally plain that it makes no difference what basis of valuation—that is, what percentage of full value—may be adopted, provided it be applied to all alike. The adoption of full value has no different effect in distributing the burden than would be gained by adopting 75 per cent, or 50 per cent, or even 10 per cent as the basis—so long as either was applied uniformly.2 The only difference would be that, supposing the requirements of the treasury remained constant, the rate of taxation would have to be increased as the percentage of valuation was reduced. (Under § 171 of the Constitution, the rate of taxation may be varied by the general assembly from year to year, according to requirements.) Therefore, the principal if not the sole reason for adopting 'fair cash value' as the standard for valuations is as a convenient means to an end,—the end being equal taxation. But if the standard be systematically departed from with respect to certain classes of property, while applied as to other property, it does not serve, but frustrates the very object it was designed to accomplish. It follows that the duty to assess at full value cannot be supreme in all cases, but must yield where necessary to avoid defeating its own purpose. A substantially identical question was presented to the circuit court of appeals for the sixth circuit in Taylor v. Louisville & N. R. Co. 31 C. C. A. 537, 60 U. S. App. 166, 88 Fed. 350, where the Constitution of Tennessee declared that all property should be taxed according to its value, to be ascertained as the legislature should direct, 'so that taxes shall be equal and uniform throughout the state,' and the statutes required that the real value of the property be adopted, and where, as here, railroad property and some other kinds were valued by one set of officials, and property in general by another, without provision for equalization as between the two classes. The court, by Circuit Judge Taft, said (p. 364): 'The sole and manifest purpose of the Constitution was to secure uniformity and equality of burden upon all the property in the state. As a means of doing so (conceding that defendant's construction is the correct one), it provided that the assessment should be according to its true value. It emphasized the object of the section by expressly providing that no species of property should be taxed higher than any other species. We have before us a case in which the complaining taxpayer, and other taxpayers owning the same species of property, are taxed at a higher rate than the owners of other species of property. This does not come about by legislative discrimination, but by the intentional and systematic disregard of the law by those charged with the duty of assessing all other species of property than that owned by complainant and its fellows of the same class. . . . [p. 365]. The question presented is, then, whether, when the sole object of an article of the Constitution is being flagrantly defeated, to the gross pecuniary injury of a class of litigants, and one of them appeals to a court of equity for relief, it must be withheld because the only mode of granting it will involve an apparent departure from the method marked out by the Constitution and the law for attaining its sole object. We say 'apparent' departure from the constitutional method, because that instrument contemplated a system in which all property should be assessed at its real value. . . . The court is placed in a dilemma, from which it can only escape by taking that path which, while it involves a nominal departure from the letter of the law, does injury to no one, and secures that uniformity of tax burden which was the sole end of the Constitution. To hold otherwise is to make the restrictions of the Constitution instruments for defeating the very purpose they were intended to subserve. It is to stick in the bark, and to be blind to the substance of things. It is to sacrifice justice to its incident.' After pointing out the similarity of the case to Cummings v. Merchants' Nat. Bank, supra, and declaring (p. 372): 'An intentional undervaluation of a large class of property, when the law enjoins assessment at true value, is necessarily designed to operate unequally upon other classes of property to be assessed by other taxing tribunals, who, it may be presumed, will conform to the law,' the court further said (p. 374): 'The various boards whose united action is by law intended to effect a uniform assessment on all classes of property are to be regarded as one tribunal, and the whole assessment on all classes of property is to be regarded as one judgment. If any board which is an essential part of the taxing system intentionally, and therefore fraudulently, violates the law, by uniformly undervaluing certain classes of property, the assessment by other boards of other classes of property at the full value, though a literal compliance with the law, makes the whole assessment, considered as one judgment, a fraud upon the fully assessed property. And this is true although the particular board assessing the complainant's property may have been wholly free from fault of fraud or intentional discrimination.' The justice of this view has been recognized by the state courts of last resort in many cases. Bureau County v. Chicago, B. & Q. R. Co. 44 Ill. 229, 239; Cocheco Mfg. Co. v. Strafford, 51 N. H. 455, 482; Manchester Mills v. Manchester, 58 N. H. 38; Randell v. Bridgeport, 63 Conn. 321, 324, 28 Atl. 523; Chicago, B. & Q. R. Co. v. Atchison County, 54 Kan. 781, 792, 39 Pac. 1039; Ex parte Ft. Smith & V. B. Bridge Co. 62 Ark. 461, 468, 36 S. W. 1060; Burnham v. Barber, 70 Iowa, 87, 90, 30 N. W. 20; Barz v. Board of Equalization, 133 Iowa, 563, 565, 111 N. W. 41; Iowa C. R. Co. v. Board of Review Iowa, (1916) 157 N. W. 731; Lehigh & W. B. Coal Co. v. Luzerne County, 225 Pa. 267, 271, 74 Atl. 67; People v. Illinois C. R. Co. 273 Ill. 220, 244-250, 112 N. E. 700. There are declarations to the contrary (State, Central R. Co., Prosecutor, v. State Assessors, 48 N. J. L. 1, 7, 57 Am. Rep. 516, 2 Atl. 789; Lowell v. Middlesex County, 152 Mass. 372, 375, 9 L.R.A. 356, 25 N. E. 469), but they take little or no account of the rights of aggrieved taxpayers. (6) The next question is order is whether the assessments have the effect of denying to plaintiffs the equal protection of the laws, within the meaning of the 14th Amendment. It is obvious, however, in view of the result reached upon the question of state law, just discussed, that the disposition of the cases would not be affected by whatever result we might reach upon the Federal question; for no other or greater relief is sought under the 'equal protection' clause than plaintiffs are entitled to under the provisions of the Constitution and laws of the state to which we have referred. Therefore, we find it unnecessary to express any opinion upon the question raised under the 14th Amendment. (7) It is objected that appellees had an adequate remedy at law, and Singer Sewing Mach. Co. v. Benedict, 229 U. S. 481, 57 L. ed. 1288, 33 Sup. Ct. Rep. 941, is cited as a controlling authority. There the suit was brought to enjoin the collection of taxes levied by the city and county of Denver, in the state of Colorado, and because of the act of Congress (Rev. Stat. § 723, Comp. Stat. 1916, § 1244) and familiar decisions applying and enforcing it, since it appeared that a local statute required the board of county commissioners to refund taxes paid and thereafter found to be erroneous or illegal, 'whether the same be owing to erroneous assessment, to improper or irregular levying of the tax, to clerical or other errors of omission,' with a correlative right on the part of the taxpayer to enforce that duty by action at law, and the decisions of the supreme court of the state interpreted the statute so as to give an adequate remedy at law, this court affirmed a decree dismissing the bill. The statute that is here invoked is § 162, Ky. Stat., which reads as follows: '§ 162. Taxes wrongfully collected refunded. When it shall appear to the auditor that money has been paid into the treasury for taxes when no such taxes were in fact due, he shall issue his warrant on the treasury for such money so improperly paid, in behalf of the person who paid the same. . . .' But, by a line of recent decisions in the Kentucky court of appeals, the effect of this section has been confined to cases where the taxes paid either were wholly without warrant in law or were based upon a mistake as to the rate of taxation upon the amount assessed; and it has been held not to authorize the auditor to correct erroneous assessments, since that official is not intrusted with authority to make assessments. German Secur. Bank v. Coulter, 112 Ky. 577, 584, 587, 66 S. W. 425, 427; Couty v. Bosworth, 160 Ky. 312, 169 S. W. 742; Bosworth v. Metropolitan L. Ins. Co. 162 Ky. 344, 348, 172 S. W. 661; Louisville Gas & E. Co. v. Bosworth, 169 Ky. 824, 829, 830, 185 S. W. 125. But, were it otherwise, § 162 clearly applies to state taxes alone, while the bills of complaint herein have to do with both state and local taxes. A remedy at law cannot be considered adequate, so as to prevent equitable relief, unless it covers the entire case made by the bill in equity. Were we to require a dismissal of these bills as to the state taxes, retaining them as to the local taxes, we should multiply suits, instead of preventing a multiplicity of suits. It is a familiar maxim that 'a court of equity ought to do justice completely, and not by halves;' and to this end, having properly acquired jurisdiction of a cause for any purpose, it should dispose of the entire controversy and its incidents, and not remit any part of it to a court of law. Camp v. Boyd, 229 U. S. 530, 551, 552, 57 L. ed. 1317, 1326, 1327, 33 Sup. Ct. Rep. 785; McGowan v. Parish, 237 U. S. 285, 296, 59 L. ed. 955, 963, 35 Sup. Ct. Rep. 543. (8) It is contended that appellees, if aggrieved, had another and more equitable remedy than a suit for injunction; that the law of the state provides a method by which, instead of lowering the assessments upon the property of appellees, they could by proper procedure compel the assessment of the property of other taxpayers to be increased so as to come within the constitutional requirement as to fair cash value, and hence that it was the duty of appellees to adopt that method. The reference is to §§ 4115-4120, Ky. Stat., which require the county board of supervisors to convene annually and make a careful examination of the assessor's books and each individual list thereof, empowering them to increase or decrease any list; 'but the board shall not reduce or raise any assessment unless the evidence be clear and unmistakable that the valuation is not a fair cash value.' By § 4123, they may hear complaints, summon and swear witnesses, and require them to testify. There is nothing in these provisions to indicate that parties in the situation of the present appellees, who have no different interest in the undervaluation by the county assessors than that which might be possessed by any other citizens of the state, are entitled to be heard to complain that the county assessments are too low. Nor is any case cited where such a complaint has been entertained. The remedy of reassessment appears to be a public, not a private, remedy. We conclude that the decrees of the District Court must be and they are affirmed. Mr. Justice Holmes, Mr. Justice Brandeis, and Mr. Justice Clarke dissent.

242.US.462

Section 2 of the supplementary Safety Appliance Act of April 14, 1910. c. 160, 36 Stat. 298, requiring interstate railway carriers to equip their cars with secure running-boards, ladders, and hand-holds or grab-irons, became effective July 1, 1911. The purpose of § 3 of the act is to standardize the appliances required by § 2, and the purpose of the proviso in it is to confer authority on the Interstate Commerce Commission to extend the time within which the carriers may conform to the established standards, but it does not authorize the Commission to change the date upon which § 2 became effective. 72 So. Rep. 158, affirmed.

It will contribute to brevity in this opinion to designate the parties as they were in the state circuit court, the defendant in error as plaintiff and the railroad companies as defendants. The plaintiff, a switchman in the employ of the defendants, was in the act of mounting, by means of a ladder, to the top of a box car to set the brake, when the hand-hold or grab iron placed at the top of the ladder, and intended to be fastened securely to the roof of the car, gave way, causing him to fall to the ground and sustain injuries, for which he instituted suit in a circuit court of Mississippi, and recovered a judgment, which was affirmed by the supreme court of the state. This judgment is now here for review on writ of error. Counsel for the defendants concede that the plaintiff pleaded and proved a case which entitles him to recover under the provisions of the Supplement to the Federal Safety Appliance Act, approved April 14, 1910 [36 Stat. at L. 298, chap. 160, Comp. Stat. 1913, § 8618], if § 2 of that act was in effect at the time the accident to the plaintiff occurred on the night of March 15th, 1913; but they claim that this section of the act was not in effect at that time, because it had been suspended until July 1st, 1916, by an order of the Interstate Commerce Commission, issued on March 13, 1911, under the authority contained in the proviso of § 3 of the act. Thus the sole question presented for decision is, Does the order issued by the Interstate Commerce Commission on March 13, 1911, suspend the provisions of § 2 of the act under discussion until July 1st, 1916? To answer this question requires an examination of §§ 2 and 3 of the Act of April 14, 1910, and of the order of the Interstate Commerce Commission of March 13, 1911. Section 2 of the act provides that on and after July 1st, 1911, 'all cars' used by any common carrier subject to the act, 'requiring secure ladders and secure running boards shall be equipped with such ladders and running boards, and all cars having ladders shall also be equipped with secure handholds or grab irons on their roofs at the tops of such ladders,' and it makes it unlawful to use cars not so equipped. A box car could not properly be used without a secure ladder, and since, by its terms, all cars having ladders must be equipped with secure handholds, the application of this section (if it was not suspended) to the case at bar, the neglect of its requirements, and the liability of the defendants to the plaintiff for the result to him of such neglect, are too clear for discussion. Texas & P. R. Co. v. Rigsby, 241 U. S. 33, 60 L. ed. 874, 36 Sup. Ct. Rep. 482. Section 3 of the act provides that within six months from the passage of the act the Interstate Commerce Commission 'shall designate the number, dimensions, location and manner of application of the appliances provided for by § 2 of this act' . . . and shall give notice of such designation to all common carriers subject to the provisions of the act by such means as the Commission may deem proper, and 'thereafter said number, location, dimensions, and manner of application, as designated by said Commission, shall remain as the standards of equipment to be used on all cars subject to the provisions of this act;' and failure to conform its equipment to such standards shall subject the neglecting carrier to like penalty as failure to comply with any requirements of the act. Then follows this proviso, upon which the defendants rely, viz.: 'Provided, That the Interstate Commerce Commission may, upon full hearing and for good cause, extend the period within which any common carrier shall comply with the provisions of this section with respect to the equipment of cars actually in service upon the date of the passage of this act.' Pursuant to the command of this 3d section, the Interstate Commerce Commission, on March 13, 1911, issued an order designating 'the number, dimensions, sizes and manner of application of the appliances provided for by § 2 of the act,' and specifically describing the size, character, and location of ladders on 'freight-train cars' and of handholds to be maintained at the tops of such ladders. By the terms of this order carriers were granted an extension of five years from July 1st, 1911, in which to bring such safety appliances into compliance with the standards by it prescribed. The claim of the defendant railway companies with respect to these two sections is built up wholly upon the assertion, it cannot properly be called argument, that because, in the part of § 3 just quoted, reference is made to § 2 for a description of the safety appliances to be standardized, therefore the whole of § 2 must be treated as so incorporated into § 3 as to be comprehended within the expression of the proviso giving power to the Interstate Commerce Commission to extend the period within which any common carrier 'shall comply with the provisions of this (the 3d) section until July 1st, 1916, by the Commission's order of March 13, 1911. That this strained and artificial construction of the section cannot be allowed may be made clear by a brief consideration of the terms and purposes of the two sections of the act. The congressional purpose in enacting § 2 of the act is very plain. At the time the act was passed railroad carriers had in service many box cars, requiring for their proper use secure ladders and secure handholds or grab irons on their roofs at the tops of such ladders, and the purpose of this section clearly is to convert the general legal duty of exercising ordinary care to provide such safety appliances and to keep them in repair into a statutory, an absolute and imperative, duty, of making them 'secure,' and to enforce this duty by appropriately severe penalties. Chicago, B. & Q. R. Co. v. United States, 220 U. S. 559, 55 L. ed. 582, 31 Sup. Ct. Rep. 612. It is equally clear that the purpose of the 3d section is to require that the safety appliances 'provided for by § 2 of the act' shall ultimately conform to a standard to be prescribed by the Interstate Commerce Commission; that is, that they shall be standardized, shall be of uniform size and character, and, so far as ladders and handholds are concerned, shall be placed as nearly as possible at a corresponding place on every car so that employees who work always in haste, and often in darkness and storm, may not be betrayed, to their injury or death, when they instinctively reach for the only protection which can avail them when confronted by such a crisis as often arises in their dangerous service. It is for such emergencies that these safety appliances are provided,—for service in those instant decisions upon which the safety of life of limb of a man so often depends in this perilous employment,—and therefore this law requires that ultimately the location of these ladders and handholds shall be absolutely fixed, so that the employee will know certainly that night or day he will find them in like place and of like size and usefulness on all cars, from whatever line of railway or section of the country they may come. This highly important and humane purpose must not be defeated by finesse of construction such as is pressed upon our attention in the argument of this case. To this primary purpose of protecting the life and limb of employees is added the purpose of protecting the lives of passengers and of securing the safety of property by requiring uniform standards as to other equipment of cars, such as coupling appliances, brakes, and the like. To change these safety appliances on all the cars in the country from what they were as contemplated by § 2,—'secure,' but differing 'in number, dimensions, location and manner of application,'—to what they must be when standardized to meet the requirements provided for in § 3, was regarded by Congress as a work so great and so expensive that it wisely committed to the informed discretion of the Interstate Commerce Commission the power and duty of determining the length of time which the carriers should be allowed in which to accomplish it. To give this discretion to the Commission is the function, and the only function, of the proviso of § 3, and the claim that, by construction, power may be found in it to suspend § 2, is too forced and unnatural to be seriously considered. This reading of the two sections makes them stand together as an expression of a consistent congressional purpose 'to promote the safety of employees and travelers on railroads' on and after July 1st, 1911, by requiring that the safety appliances described in § 2 of the act shall be secure and efficient from that date, and by requiring, as § 3 provides, that these appliances shall be brought as speedily as may be to a uniform standard of location, size and usefulness, to be prescribed by the Interstate Commerce Commission. While the question we have considered has not been presented to this court before in precisely the form in which we have it here, yet § 2 of the act was treated by this court as in full force as of September 4, 1912, in Texas & P. R. Co. v. Rigsby, 241 U. S. 33, 60 L. ed. 874, 36 Sup. Ct. Rep. 482, and the supreme court of the state of Minnesota in Coleman v. Illinois C. R. Co. 132 Minn. 22, 155 N. W. 763, and the supreme court of Iowa in Cook v. Union P. R. Co. ——Iowa, ——, 158 N. W. 521, while arriving at their conclusions by somewhat different analyses of the sections of the Act of April 14, 1910, have given to them precisely the meaning and effect which we are giving to them in this decision. It results that the judgment of the Supreme Court of Mississippi is affirmed.

244.US.68

The fact that personal injuries sued for occurred while plaintiff was employed on work which defendant was performing under contract with the United States does not prevent a state court from entertaining the action. An Indiana corporation, in constructing a canal for the United States on a federal reservation in Kentucky, carried the excavated materials over a railroad it had built for the purpose, to land belonging to another and dumped them there with such owner's consent. The dump and, in part, the railroad were within Kentucky and outside the reservation. Held, that without regard to whether the jurisdiction over the reservation was exclusively federal, the transport and deposit of the materials beyond its limits was such a doing of business in Kentucky as subjected the corporation to the jurisdiction of the courts of that State in a transitory action. The corporation was sued in a Kentucky court for injuries suffered by an employee while engaged upon the work Within the reservation, a summons being served in the reservation on an agent whom it had designated under the Kentucky law for receiving service of process in case of suit, and an alias summons being served on the agent while off the reservation at his home in Kentucky. Held, that, if the first service was void upon the ground that jurisdiction over the reservation was exclusively in the United States, the second was good, since the corporation did business in the State outside the reservation. An action for personal injuries suffered on a reservation under exclusive jurisdiction of the United States, being transitory, may be maintained in a state court which has personal jurisdiction of the defendant. 170 Kentucky, 412, affirmed.

In July, 1914, one Haines sued the Ohio River Contract Company, the plaintiff in error, and Swisher, one of its employees, in the circuit court of Jefferson county, Kentucky, to recover damages resulting from personal injuries alleged to have been occasioned by the negligence of the defendants while Haines was in the employ of the company. The defendant company by appropriate pleadings challenged the power of the court to entertain the suit, both because of the want of jurisdiction over the corporation and over the subject-matter of the suit. Briefly the facts were these: The Contract Company was a corporation organized under the laws of Indiana, and had its principal place of business in that state. At the time in question it was engaged within the geographical limits of the state of Kentucky in constructing, under a contract with the United States government, a canal with locks and dam on the Ohio river on a piece of land known as the Canal Reservation, acquired by the United States by purchase or condemnation from the state of Kentucky with the consent of its legilature. While most of the work under the contract was performed on the land thus acquired, the earth and rocks excavated in the construction of the canal were hauled over railroad tracks laid by the defendant company on land outside of the Canal Reservation, and, through an arrangement with the Kentucky & Indiana Terminal Railway Company, were dumped on its property in the state of Kentucky. The accident which gave rise to the injuries complained of occurred in the course of the work on the Canal Reservation. In conformity with a statute of Kentucky the company had designated an agent in the state upon whom process might be served in the event suits were brought against it in the state. The summons issued in the cause was served on the designated agent when he was on the land of the United States, but subsequently an alias summons was served on him at his home in Louisville. Under these facts it was insisted the court was without jurisdiction (a) because when the accident occurred the company and the plaintiff were engaged in work under a contract with the United States government; (b) because the cause of action arose on land acquired by the United States by purchase or condemnation with the consent of the legislature of Kentucky, and therefore, under article 1, § 8, clause 17, of the Constitution of the United States, the jurisdiction of the Federal government was exclusive; (c) because the service of the original summons was void, since it was made upon the land of the United States, where, it was insisted, state process cannot run; and (d) because the service of the alias summons was also void since the company transacted no business in the state, and the person served was not its agent for any purpose in the state, but represented the company only in its work on the reservation. The objections of the company to the jurisdiction were overruled and the case was set down for trial. Thereupon the company, desiring a review of the jurisdictional questions, and in order to avoid the consequences of the rule under the Kentucky practice that the appearance of a party on appeal operates as a waiver of a claim of want of jurisdiction over his person (Western Life Indemnity Co. v. Rupp, 235 U. S. 261, 59 L. ed. 220, 35 Sup. Ct. Rep. 37), applied to the court below for a writ of prohibition directed to the trial judge to restrain him from proceeding further in the cause. A temporary restraining order was granted, but, on final hearing, the petition was overruled and the writ of prohibition denied, and upon the theory, which was adequately presented below, that to subject the defendant corporation to the jurisdiction of the state court under the circumstances stated would be a violation of due process, in conflict with the 14th Amendment, this writ of error was prosecuted. At the present term, on application of the plaintiff in error, an order was issued to restrain further proceedings in the cause in the courts below pending the decision of the case here. We at once put out of view the contention that the trial court was without jurisdiction because the parties, at the time of the accident, were engaged in work under a contract with the United States government, since the want of merit in the proposition has been previously established. Gromer v. Standard Dredging Co. 224 U. S. 362, 371, 56 L. ed. 801, 32 Sup. Ct. Rep. 499. The remaining contentions are also, we think, without merit. Conceding, for the sake of the argument only, that the Canal Reservation was within the exclusive legislative jurisdiction of Congress, it is clear from the facts we have stated that the business carried on by the corporation was not confined to the land owned by the United States, since it is admitted that, in order to dispose of the material excavated in the construction of the canal, a line of railway was built which extended beyond the reservation and connected with the tracks of the Kentucky & Indiana Terminal Railway, upon whose property all of the earth and rocks were dumped. This clearly constituted the doing of business within the state and subjected the corporation to the jurisdiction of the Kentucky courts. Assuming also, for argument's sake only, that the original summons was void because served on the agent designated by the company while he was on the reservation, the subsequent service of the alias summons on the agent at his home in Louisville was valid, since, as we have seen, the company was doing business in the state. And finally, an action for personal injuries being in its nature transitory and susceptible of being brought in any jurisdiction in which the defendant may be impleaded, there is no foundation for the contention that the court had no jurisdiction over the subject-matter of the suit. Affirmed.

245.US.6

Whether the statutes of Maryland intend to authorize the Public Service Commission to revise intrastate commutation rates when such rates have already been established by voluntary action of the railroad company, is a question of state law concerning which the conclusion of the Court of Appeals of Maryland binds this court upon a writ of error to review its judgment. State regulation, through a public service commission, requiring a carrier to maintain commutation service between points within the State and fixing rates therefor, which are less than the intrastate rate lawfully established for one-way intrastate travel in general, does not deprive the carrier of due process of law when the service so regulated was established by the carrier voluntarily and the rates fixed by the State are reasonable. Lake Shore & Michigan Southern Ry. Co. v. Smith, 173 U. S. 684, is distinguished, and the views expressed in that case which are inconsistent with the decision in this one are disapproved. 126 Maryland, 59, affirmed.

This was an action in the circuit court No. 2 of Baltimore City, Maryland, to enjoin the Public Service Commission of Maryland from enforcing an order to sell commutation tickets at certain rates specified. The injunction was refused, and on appeal the Court of Appeals of Maryland affirmed the decree and held that although the order fixing the rates declared the same to be in force for ten years, there should be reserved to the railroad company the right to apply to the Commission after the lapse of a reasonable time for a rescission or modification of its order if experience demonstrated that the revenue derived under the tariff as established by the Commission was not properly compensatory for the services performed. 126 Md. 59, 94 Atl. 330, Ann. Cas. 1917B, 1144. The order of the Commission required the Pennsylvania Railroad Company, lessee of the Northern Central Railway, to sell tickets for the transportation of passengers between Baltimore and Parkton within the state of Maryland on the line of the Northern Central Railway. A table appearing in the opinion of the Court of Appeals shows the relative rates under the former schedules and the new order of the Public Service Commission to be as follows: Rates Prior to Rates as per schedule Rates under Order Nov. 25, 1914. Filed Nov. 25, 1914. P. S. Com. Dec. 23, 1914. 1. Round trip, 10 day, Round trip, no limit, Round trip, 2 1/4¢ 2 1/4¢ per M. 2 1/2¢ per M. per M. 2. Exc. 2-10 days, 2 1/4¢ Discontinued. No ruling made. per M. 3. 10-trip ticket, 1 10-trip, 3 mos., 2 1/4¢ 10-trip, 3 mos. yr., 1 8/10¢ per M. per M. 2¢ per M. 4. 60-trip 1 mo., 2¢ for 60-trip, 1 mo. former 60-trip, 1 mo. former first 3 M., 1/4¢ for rate plus 25¢ flat. rate plus 25¢. ea. addl. 1/2 M. 5. 100-trip 1 yr. at Discontinued. 100-trip, 4 mos., double 60-trip. former rate, plus $1. 6. 180-trip 3 mos. same 180-trip, 3 mos. at 3 180-trip, 3 mos., as 4, less 10%. times 60-trip. former rate plus 75¢. 7. 46-trip School, 1 mo., 46-trip School, 1 mo., 46-trip School, 1 mo., 46/60 of 60-trip. 46/60 of 60-trip. 46/60 of 60-trip. The attack upon the order of the Commission in this court, is based upon the contention that its effect is to take the property of the railroad company without due process of law, contrary to the Fourteenth Amendment to the Constitution of the United States. It is also averred in the bill that the order, if enforced, will work a discrimination against interstate travel in favor of travel within the state, and is otherwise unreasonable and void. The Court of Appeals of Maryland stated the question to be whether it is within the power of the Public Service Commission to require the establishment of a schedule of commutation rates by the railroad company, not where no such rates had therefore been established, but where a new system of commutation rates had been proposed by the railroad company and submitted to the Commission. Whether commutation rates should be established was declared to be a question of policy to be decided by the company. The court found authority in the Commission under the statutes of Maryland to revise commutation rates where such rates had already been established by the action of the company. We must accept this definition of authority in the Commission, so far as the state law is concerned, and direct our inquiry to the federal question presented. The question, as counsel for plaintiff in error states it, is whether a state Legislature, either directly or through the medium of a Public Service Commission, under the guise of regulating commerce, may compel carriers engaged in both interstate and intrastate commerce to establish and maintain intrastate rates at less than both the interstate and intrastate standard and legally established maxima. It is asserted that there is no constitutional authority to compel railroad companies to continue the sale of commutation or special class tickets at rates less than the legally established standard or normal one-way single passenger fare upon terms more favorable than those extended to the single one-way traveler. To maintain this proposition plaintiff in error relies upon and quotes largely from the opinion of this court in Lake Shore & Michigan Southern Ry. Co. v. Smith, 173 U. S. 684, 19 Sup. Ct. 565, 43 L. Ed. 858. In that case a majority of this court held a statute of the state of Michigan to be invalid. A previous statute of the state had fixed a maximum passenger rate of three cents per mile. The statute in controversy required the issuing of mileage books for a thousand miles, good for two years, at a less rate. This court held that a maximum rate for passengers having been established, that rate was to be regarded as the reasonable compensation for the service, and that the fixing of the less rate to particular individuals was an arbitrary exercise of legislative power and an unconstitutional interference with the business of the carrier, the effect of which was to violate the provisions of the Fourteenth Amendment to the federal Constitution by depriving the railroad company of its property without due process of law and denying to it the equal protection of the law. The Lake Shore Case did not involve, as does the present one, the power of a state commission to fix intrastate rates for commutation tickets where such rates had already been put in force by the railroad company of its own volition, and we confine ourselves to the precise question presented in this case, which involves the supervision of commutation rates when rates of that character have been voluntarily established by the carrier. The rates here involved are wholly intrastate. The power of the states to fix reasonable intrastate rates is too well settled at this time to need further discussion or a citation of authority to support it. In Interstate Commerce Commission v. B. & O. R. R., 145 U. S. 263, 12 Sup. Ct. 844, 36 L. Ed. 699, this court held that a 'party rate ticket' for the transportation of ten or more persons at a less rate than that charged a single individual did not make a discrimination against an individual charged more for the same service or amount to an unjust or unreasonabel discrimination within the meaning of the act to regulate commerce. In the course of the opinion the right to issue tickets at reduced rates good for limited periods upon the principle of commutation was fully recognized. See 145 U. S. 277, 278, 279, 280, 12 Sup. Ct. 844, 36 L. Ed. 699. Having the conceded authority to regulate intrastate rates, we perceive no reason why such power may not be exercised through duly authorized commissions and rates fixed with reference to the particular character of the service to be rendered. In Norfolk & Western Ry. v. West Virginia, 236 U. S. 605, 608, 35 Sup. Ct. 437 (59 L. Ed. 745), after making reference to Northern Pacific Ry. v. North Dakota, 236 U. S. 585, 35 Sup. Ct. 429, 59 L. Ed. 735, Ann. Cas. 1916A, 1, this court said: 'It was recognized [in the North Dakota case] that the state has a broad field for the exercise of its discretion in prescribing reasonable rates for common carriers within its jurisdiction; that it is not necessary that there should be uniform rates or the same percentage of profit on every sort of business; and that there is abundant room for reasonable classification and the adaptation of rates to various groups of services.' That the state may fix maximum rates governing one-way passenger travel is conceded. Having the general authority to fix rates of a reasonable nature, we can see no good reason for denying to the state the power to exercise this authority in such manner as to fix rates for special services different from those charged for the general service. In our opinion the rate for a single fare for passengers generally may be varied so as to fit the particular and different service which involves, as do commutation rates, the disposition of tickets to passengers who have a peculiar relation to the service. The service rendered in selling a ticket for one continuous trip is quite different from that involved in disposing of commutation tickets where a single ticket may cover 100 rides or more within a limited period. The labor and cost of making such tickets as well as the cost of selling them is less than is involved in making and selling single tickets for single journeys to one-way passengers. The service rendered the commuter, carrying little baggage and riding many times on a single ticket for short distances, is of a special character and differs from that given the single-way passenger. It is well known that there have grown up near to all the large cities of this country suburban communities which require this peculiar service, and as to which the railroads have themselves, as in this instance, established commutation rates. After such recognition of the propriety and necessity of such service, we see no reason why a state may not regulate the matter, keeping within the limitation of reasonableness. On the strength of these commutation tariffs, it is a fact of public history that thousands of persons have acquired homes in city suburbs and nearby towns in reliance upon this action of the carriers in fixing special rates and furnishing particular accommodations suitable to the traffic. This fact has been recognized by the courts of the country, by the Interstate Commerce Commission, and quite generally by the Railroad Commissions of the states.1 The question of the power of the Public Service Commission of the State of New York in this respect was before the Appellate Division of the Supreme Court of that state in People ex rel. New York, New Haven & Hartford Railroad Co. v. Public Service Commission, 159 App. Div. 546, 145 N. Y. Supp. 513. In that case it was said: 'Subdivision 4 of section 33 of the Public Service Commissions Law (Consol. Laws, c. 48 [Laws of 1910, c. 480], as amended by Laws of 1911, c. 546) empowers the Commission to fix reasonable and just rates for such service. It is urged, however, that the statute is invalid under the rule of Lake Shore, etc., R. Co. v. Smith, 173 U. S. 684 [19 Sup. Ct. 565, 43 L. Ed. 858]. In that case the statute of Michigan had fixed a maximum passenger rate at three cents per mile. A subsequent enactment required the issuing of mileage books for 1,000 miles, good for two years, at a less rate. The court held that having fixed a uniform maximum rate as to all passengers, such rate was the reasonable compensation for the service, and that the fixing of a less rate to particular individuals was an unreasonable and arbitrary exercise of legislative power; that it was not for the convenience of the public and thus within the police power, but was for the convenience of certain individuals who were permitted to travel upon the railroads for less than the reasonable rate prescribed by law; that the law was, therefore, in violation of the Fourteenth Amendment of the federal Constitution in depriving the company of its property without due process of law and by depriving it of the equal protection of the laws. 'In Beardsley v. N. Y., L. E. & W. R. R. Co., 162 N. Y. 230 [56 N. E. 488], the Court of Appeals felt constrained by the Smith Case to declare the Mileage Book Law of this state invalid as to companies in existence at the time of its passage, but in Purdy v. Erie R. R. Co., 162 N. Y. 43 [56 N. E. 508, 48 L. R. A. 669], that law was held valid as to companies organized after the statute was passed. 'In Louisville & Nashville R. R. Co. v. Kentucky, 183 U. S. 503 [22 Sup. Ct. 95, 46 L. Ed. 298], after citing the Smith Case and like cases, the court says (at page 511): 'Nor, yet, are we ready to carry the doctrine of the cited cases beyond the limits therein established.' 'In the Minnesota Rate Case (Simpson v. Shepard) 230 U. S. 352 [33 Sup. Ct. 729, 57 L. Ed. 1511, 48 L. R. A. (N. S.) 1151, Ann. Cas. 1916A, 18], the legality of an order of the Commission of that state was recognized which fixed a maximum freight rate and passenger rate, the latter at two cents a mile as the maximum fare for passengers twelve years of age or over, and one cent a mile for those under twelve years of age. 'In Interstate R. Co. v. Massachusetts, 207 U. S. 79 [28 Sup. Ct. 26, 52 L. Ed. 111, 12 Ann. Cas. 555], the Massachusetts law prescribing special rates less than the maximum for school children was held valid. These cases indicate that the Smith Case is not to be extended beyond the facts upon which it rests. 'The Smith Case distinguishes itself from this case where the court (at page 693 [of 173 U. S., at page 569 of 19 Sup. Ct., 43 L. Ed. 858]) says: 'This act is not like one establishing certain hours in the day during which trains shall be run for a less charge than during the other hours. In such case it is the establishing of maximum rates of fare for the whole public during those hours, and it is not a discrimination in favor of certain persons by which they can obtain lower rates by purchasing a certain number of tickets by reason of which the company is compelled to carry them at the reduced rate, and thus, in substance, to part with its property at a less sum than it would be otherwise entitled to charge. The power to compel the company to carry persons under the circumstances as provided for in this act, for less than the usual rates does not seem to be based upon any reason which has hitherto been regarded as sufficient to authorize an interference with the corporation, although a common carrier and a railroad.' 'Our flourishing cities owe their position and prosperity, in part, to the commutation rates for suburban service; the health and welfare of the public are concerned that people doing business in the large cities may live in the country where the surroundings are pleasanter, more healthy and to the advantage of themselves and their families. It is a known fact that such rates exist upon all railways entering large cities, and have usually been established by the companies voluntarily in the interest of themselves and the public. The service is different in its nature from the other passenger service. It is so universal, of such large proportion, has become so necessary to the public that it cannot be said that the fixing of reasonable and just rates for it is unusual or unreasonable, or the granting of a benefit to individuals and not for convenience to the public. 'Nearly one-half of the passengers handled by the relator at the Grand Central Terminal were of this class. Perhaps the same ratio would exist upon the other railroads serving the city. We conclude that the statute in question is valid as conferring a power on the Commission to regulate rates for the public convenience and welfare.' That decision was affirmed by the Court of Appeals of New York on the opinion of the Appellate Division. 215 N. Y. 689, 109 N. E. 1089. The subject was elaborately considered by the Interstate Commerce Commission in the Commutation Rate Case, 21 Interst. Com. Com'n R. 428, in which the authority of the Commission to fix reasonable rates was sustained. In the course of the opinion, Commissioner Harlan, speaking for a unanimous Commission, said: 'Another case strongly relied upon by the defendants is L. S. & M. S. R. R. Co. v. Smith, 173 U. S. 699 [19 Sup. Ct. 565, 43 L. Ed. 858]. It there appeared that the Legislature of the state of Michigan had fixed the maximum passenger fare to be charged by railroad companies for local journeys within the state. By a subsequent enactment it required the carriers to sell 1,000-mile tickets for use within the lower peninsula at a price nor exceeding $20 and in the upper peninsula at a price not exceeding $25. Various conditions affecting the use of the tickets were also fixed by the act, and among others that they should be valid for two years after the date of purchase. It was held that in the exercise of its general police power a state may fix maximum fares, but that it may not fix a rate for 1,000-mile tickets that involves a discrimination in favor of those who buy them. The statute was held to be invalid. The case, however, involved mileage tickets which, we must repeat, differ very essentially in character from commutation tickets. 'We have been referred to no other adjudication by the courts and are left to conclude that the precise point now before us has not been passed upon by the courts. 'It will not be necessary to dwell here upon the importance of the question not only to the particular suburban communities involved on the record before us, but to many other such communities throughout the country, the prosperity and growth of which largely depend upon an efficient and reasonable commutation service. Many such communities have not only been encouraged by the carriers, but were, in fact, originally established largely on their initiative. Suburban property has been bought, homes have been established, business relations made, and the entire course of life of many families adjusted to the conditions created by a commutation service. This may not have been done on the theory that the fares in effect at any particular time would always be maintained as maximum fares, but countless homes have been established in suburban communities in the belief that there would be a reasonable continuity in the fares and that the carriers in any event would perform the service at all times for a reasonable compensation. 'Nor need we stop to point out the distinction between commutation tickets on the one hand and excursion and mileage tickets on the other. Compared with the normal one-way fare all such tickets may be said to be abnormal. But the resemblance stops at that point. Although they are mentioned together in section 22, the force and effect of that provision must necessarily differ with the differing character of the several kinds of tickets. It seems to be settled under that section that a carrier may enter upon the policy and practice of issuing mileage books and excursion tickets at less than its regular normal fare for the one-way journey, and, having adopted such a policy, may subsequently withdraw from it and refuse longer to issue such tickets. That has been the view of this Commission, and is the view generally entertained, although there may be exceptional circumstances where a different conclusion would be required. It by no means follows, however, that a carrier under section 22 may exercise the same scope and freedom of action with respect to commutation tickets.' The reasoning of these decisions is sound Constitution. True it is that it may not be possible to reconcile these views with all that is said in the opinion delivered for the majority of the court in the case of Lake Shore & Michigan Southern Ry. Co. v. Smith, supra. The views therein expressed which are inconsistent with the right of the states to fix reasonable commutation fares when the carrier has itself established fares for such service, must be regarded as overruled by the decision in this case. We find no error in the decree of the Court of Appeals of Maryland, and the same is Affirmed. The CHIEF JUSTICE, Mr. Justice McKENNA, and Mr. Justice McREYNOLDS dissent.

246.US.565

A suggestion now made for the first time by West Virginia, viz., that that State has an interest in an alleged right of Virginia against the United States respecting lands of the Northwest Territory, presents no ground for not enforcing the judgment heretofore rendered. The judgment heretofore rendered can not now be attacked upon the ground that in original eases in this court one State cannot recover from another in a mere action of debt. The suit, however, was more than a mere action to collect a debt. The principle which forbids the production of state governmental inequality by affixing conditions to a State's admission is irrelevant to the question of power to enforce the contract in this case. The original jurisdiction conferred upon this court by the Constitution over controversies between States includes the power to enforce its judgment by appropriate remedial processes, operating where necessary upon the governmental powers and agencies of a State. The authority to enforce its judgments is of the essence of judicial power. That this elementary principle applies to the original jurisdiction in controversies between States has been universally recognized as beyond dispute, as is manifested by the numerous cases of the kind which have been decided, in not one of which hitherto, since the foundation of the Government, has a State done otherwise than voluntarily respect and accede to the judgment. The provision granting this jurisdiction examined as to its origin and purpose, together with the closely related provisions prohibiting interstate agreements without the consent of Congress and depriving the States of army and war-making powers and vesting them in Congress, the result being to show the clear intention of the Constitution, conceived out of regard for the rights of all the States and for the preservation of the Constitution itself, to forestall for the future the dangers of state controversies by uniting with the power to decide them the power to enforce the decisions against the state governments. To this power the reserved powers of the States necessarily are subordinate. The powers to decide and enforce, comprehensively considered, are sustained by every authority of the Federal Government, judicial, legislative and executive, which may be appropriately exercised. The vesting in Congress of complete power to control agreements between States clearly rested upon the conception that Congress, as the repository not only of legislative power but of primary authority to maintain armies and declare war, speaking for all the States and for their protection, was concerned with such agreements and therefore was virtually endowed with the ultimate power of final agreement which was withdrawn from the States. It follows, by necessary implication, that the power of Congress to grant or withhold assent to such contracts carries with it the duty and power to see to their enforcement when made operative by its sanction. This power is plenary, limited only by the general rule that acts done for the exertion of a power must be relevant and appropriate to the power exerted. As a national power it is dominant and not circumscribed by the powers reserved to the States. The power of Congress to legislate for the enforcement of a contract between two States under the circumstances here presented is not incompatible with the grant of original jurisdiction to this court to entertain a suit on the same subject. The power of Congress also extends to the creation of new judicial remedies to meet the exigency occasioned by the judicial duty of enforcing a judgment against a State under the circumstances here presented. Out of consideration for the character of the parties, and in the belief that the respondent State will now discharge its plain duty without compulsion, and because the case is such that full opportunity should be afforded to Congress to exercise its undoubted power to legislate, the court abstains from determining what judicial remedies are available under existing legislation and postpones the case, for future argument upon the following questions: (1) Whether mandamus compelling the legislature of West Virginia to levy a tax to pay the judgment is an appropriate remedy. (2) Whether the power and duty exist to direct the levy of a tax adequate to pay the judgment and provide for its enforcement irrespective of state agencies. (3) Whether, if necessary, the judgment may be executed through some other equitable remedy, dealing with such funds or taxable property of West V'nhi, or rights of that State, as may be available. Right is reserved in the meantime to appoint a master to examine and report concerning the amount and method to taxation, whether by the state legislature or through direct action, essential to satisfy the judgment, as well as concerning the means otherwise existing in West Virginia which, by the exercise of equitable power, may be made available to that end.

A rule allowed at the instance of Virginia against West Virginia to show cause why in default of payment of the judgment of this court in favor of the former state against the latter, an order should not be entered directing the levy of a tax by the Legislature of West Virginia to pay such judgment, and a motion by West Virginia to dismiss the rule is the matter before us. In the suit in which the judgment was rendered Virginia, invoking the original jurisdiction of this court, sought the enforcement of a contract by which it was averred West Virginia was bound. The judgment which resulted was for $12,393,929.50 with interest and it was based upon three propositions specifically found to be established: First, that when territory was carved out of the dominion of the state of Virginia for the purpose of constituting the area of the state of West Virginia, the new state, coincident with its existence, became bound for and assumed to pay its just proportion of the previous public debt of Virginia. Second, that this obligation of West Virginia was the subject of a contract between the two states made with the consent of Congress and was incorporated into the Constitution by which West Virginia was admitted by Congress into the Union and therefore became a condition of such admission and a part of the very governmental fiber of that state. Third, that the sum of the judgment rendered constituted the equitable proportion of this debt due by West Virginia in accordance with the obligations of the contract. The suit was commenced in 1906 and the judgment rendered in 1915. The various opinions expressed during the progress of the cause will be found in the reported cases cited in the margin,1 in the opinion in one of which (234 U. S. 117, 34 Sup. Ct. 889, 58 L. Ed. 1243) a chronological statement of the incidents of the controversy was made. The opinions referred to will make it clear that both states were afforded the amplest opportunity to be heard and that all the propositions of law and fact urged were given the most solicitous consideration. Indeed, it is also true that in the course of the controversy, as demonstrated by the opinions cited, controlled by great consideration for the character of the parties, no technical rules were permitted to frustrate the right of both of the states to urge the very merits of every subject deemed by them to be material. And controlled by a like purpose before coming to discharge our duty in the matter now before us we have searched the record in vain for any indication that the assumed existence of any error committed has operated to prevent the discharge by West Virginia of the obligations resulting from the judgment and hence has led to the proceeding to enforce the judgment which is now before us. In saying this however we are not unmindful that the record contains a suggestion of an alleged claim of West Virginia against the United States, which was not remotely referred to while the suit between the two states was undetermined, the claim referred to being based on an assumed violation of trust by the United States in the administration of what was left of the great domain of the Northwest Territory—a domain as to which, before the adoption of the Constitution of the United States, Virginia at the request of Congress transferred to the government of the Confederation all her right, title and interest in order to allay discord between the states, as New York had previously done and as Massachusetts, Connecticut, South Carolina, North Carolina and Georgia subsequently did.2 It is obvious that the subject was referred to in connection with the duty of West Virginia to comply with the requirements of the judgment upon the hypothesis that if the United States owed the claim and if in a suit against the United States recovery could be had, and if West Virginia received its share, it might be used, if sufficient, for discharging the judgment and thus save West Virginia from resorting to other means for so doing. That judicial power essentially involves the right to enforce the results of its exertion is elementary. Wayman v. Southard, 10 Wheat. 1, 23, 6 L. Ed. 253; Bank of the United States v. Halstead, 10 Wheat. 57, 6 L. Ed. 264; Gordon v. United States, 117 U. S. 697, 702. And that this applies to the exertion of such power in controversies between states as the result of the exercise of original jurisdiction conferred upon this court by the Constitution is therefore certain. The many cases in which such controversies between states have been decided in the exercise of original jurisdiction make this truth manifest.3 Nor is there room for contending to the contrary because in all the cases cited the states against which judgments were rendered conformably to their duty under the Constitution voluntarily respected and gave effect to the same. This must be unless it can be said that because a doctrine has been universally recognized as being beyond dispute and has hence hitherto in every case from the foundation of the government been accepted and applied, it has by that fact alone now become a fit subject for dispute. It is true that in one of the cited cases (South Dakota v. North Carolina, 192 U. S. 286, 24 Sup. Ct. 269, 48 L. Ed. 448) it was remarked that doubt had been expressed in some instances by individual judges as to whether the original jurisdiction conferred on the court by the Constitution embraced the right of one state to recover a judgment in a mere action for debt against another. In that case, however, it is apparent that the court did not solve such suggested doubt, as that question was not involved in the case then before it and that subject was hence left open to be passed on in the future when the occasion required. But the question thus left open has no bearing upon and does not require to be considered in the case before us, first, because the power to render the judgment as between the two states whose enforcement is now under consideration is as to them foreclosed by the fact of i § rendition. And second, because while the controversy between the states culminated in a decree for money and that subject was within the issues, nevertheless the generating cause of the controversy was the carving out of the dominion of one of the states the area composing the other and the resulting and expressly assumed obligation of the newly created state to pay the just proportion of the pre-existing debt, an obligation which as we have seen rested in contract between the two states, consented to by Congress and expressed in substance as a condition in the Constitution by which the new state was admitted into the Union. In making this latter statement we do not overlook the truism that the Union under the Constitution is essentially one of states equal in local governmental power which therefore excludes the conception of an inequality of such power resulting from a condition of admission into the Union. Ward v. Race Horse, 163 U. S. 504, 16 Sup. Ct. 1076, 41 L. Ed. 244. But this principle has no application to the question of power to enforce against a state when admitted into the Union a contract entered into by it with another state with the consent of Congress since such question but concerns the equal operation upon all the states of a limitation upon them all imposed by the Constitution and the equal application of the authority conferred upon Congress to vivify and give effect by its consent to contracts entered into between states. Both parties admit that West Virginia is the owner of no property not used for governmental purposes and that therefore from the mere issue of an execution the judgment is not susceptible of being enforced if under such execution property actually devoted to immediate governmental uses of the state may not be taken. Passing a decision as to the latter question, all the contentions on either side will be disposed of by considering two subjects: first, the limitations on the right to enforce inhering in the fact that the judgment is against a state and its enforcement against such governmental being; and second, the appropriateness of the form of procedure applicable for such enforcement. The solution of these subjects may be disposed of by answering two questions which we propose to separately state and consider. 1. May a judgment rendered against a state as a state be enforced against it as such, including the right to the extent necessary for so doing of exerting authority over the governmental powers and agencies possessed by the state? On this subject Virginia contends that as the Constitution subjected the state of West Virginia to judicial authority at the suit of the state of Virginia, the judgment which was rendered in such a suit binds and operates upon the state of West Virginia, that is, upon that state in a governmental capacity, including all instrumentalities and agencies of state power, and indirectly binding the whole body of the citizenship of that state and the property which by the exertion of powers possessed by the state are subject to be reached for the purpose of meeting and discharging the state obligation. As then, the contention proceeds, the Legislature of West Virginia possesses the power to tax and that body and its powers are all operated upon by the judgment, the inability to enforce by means of ordinary process of execution gives the right and sanctions the exertion of the authority to enforce the judgment by compelling the Legislature to exercise its power of taxation. The significance of the contention and its scope are aptly illustrated by the reference in argument to the many decided cases holding that where a municipality is empowered to levy specified taxation to pay a particular debt, the judicial power may enforce the levy of the tax to meet a judgment rendered in consequence of a default in paying the indebtedness.4 On the other hand, West Virginia insists that the defendant as a state may not as to its powers of government reserved to it by the Constit tion be controlled or limited by process for the purpose of enforcing the payment of the judgment. Because the right for that end is recognized to obtain an execution against a state and levy it upon its property, if any, not used for governmental purposes, it is argued, affords no ground for upholding the power by compelled exercise of the taxing authority of the state to create a fund which may be used when collected for paying the judgment. The rights reserved to the states by the Constitution, it is further insisted, may not be interfered with by the judicial power merely because that power has been given authority to adjudicate at the instance of one state a right asserted against another, since although the authority to enforce the adjudication may not be denied, execution to give effect to that authority is restrained by the provisions of the Constitution which recognize state governmental power. Mark, in words a common premise—a judgment against a state and the authority to enforce it—is the predicate upon which is rested on the one hand the contention as to the existence of complete and effective, and the assertion on the other of limited and inefficacious power. But it is obvious that the latter can only rest upon either treating the word 'state' as used in the premise as embracing only a misshapen or dead entity, that is, a state stripped for the purpose of judicial power of all its governmental authority, or if not, by destroying or dwarfing the significance of the word 'state' as describing the entity subject to enforcement, or both. It needs no argument to demonstrate that both of these theories are incompatible with and destructive of the very numerous cases decided by this court to which we have referred. As it is certain that governmental powers reserved to the states by the Constitution—their sovereignty—were the efficient cause of the general rule by which they were not subject to judicial power, that is, to be impleaded, it must follow that when the Constitution gave original jurisdiction to this court to entertain at the instance of one state a suit against another it must have been intended to modify the general rule, that is, to bring the states and their governmental authority within the exceptional judicial power which was created. No other rational explanation can be given for the provision. And the context of the Constitution, that is, the express prohibition which it contains as to the power of the states to contract with each other except with the consent of Congress, the limitations as to war and armies, obviously intended to prevent any of the states from resorting to force for the redress of any grievance real or imaginary, all harmonize with and give force to this conception of the operation and effect of the right to exert, at the prayer of one state, judicial authority over another. But it is in substance said this view must be wrong for two reasons: (a) Because it virtually overrides the provision of the Constitution reserving to the states the powers not delegated, by the provision making a grant of judicial power for the purpose of disposing of controversies between states; and (b) because it gives to the Constitution a construction incompatible with its plain purpose, which was while creating the nation, yet at the same time to preserve the states with their governmental authority in order that state and nation might endure. Ultimately the argument at its best but urges that the text of the Constitution be disregarded for fear of supposed consequences to arise from enforcing it. And it is difficult to understand upon what ground of reason the preservation of the rights of all the states can be predicated upon the assumption that any one state may destroy the rights of any other without any power to redress or cure the resulting grievance. Nor further can it be readily understood why it is assumed that the preservation and perpetuation of the Constitution depend upon the absence of all power to preserve and give effect to the great guaranties which safeguard the authority and preserve the rights of all the states. Besides, however, the manifest error of the propositions which these considerations expose, their want of merit will be additionally demonstrated by the history of the institutions from which the provisions of the Constitution under review were derived and by bringing into view the evils which they were intended to remedy and the rights which it was contemplated their adoption would secure. Bound by a common allegiance and absolutely controlled in their exterior relations by the mother county, the colonies before the Revolution were yet as regards each other practically independent, that is, distinct one from the other. Their common intercourse more or less frequent, the contiguity of their boundaries, their conflicting claims in many instances of authority over undefined and outlying territory, of necessity brought about conflicting contentions between them. As these contentions became more and more irritating, if not seriously acute, the necessity for the creation of some means of settling them became more and more urgent if physical conflict was to be avoided. And for this reason, it is to be assumed, it early came to pass that differences between the colonies were taken to the Privy Council for settlement and were there considered and passed upon during a long period of years, the sanction afforded to the conclusions of that body being the entire power of the realm, whether exerted through the medium of a royal decree or legislation by Parliament. This power, it is undoubtedly true, was principally called into play in cases of disputed boundary, but that it was applied also to the complaint of an individual against a colony concerning the wrongful possession of property by the colony alleged to belong to him is not disputed. This general situation as to the disputes between the colonies and the power to dispose of them by the Privy Council was stated in Rhode Island v. Massachusetts, 12 Pet. 657, 739, 9 L. Ed. 1233, et seq., and will be found reviewed in the authorities referred to in the margin.5 When the Revolution came and the relations with the mother country were severed, indisputably controversies between some of the colonies of the greatest moment to them had been submitted to the Privy Council and were undetermined. The necessity for their consideration and solution was obviously not obscured by the struggle for independence which ensued, for, by the ninth of the Articles of Confederation an attempt to provide for them as well as for future controversies was made. Without going into detail it suffices to say that that article in express terms declared the Congress to be the final arbiter of controversies between the states and provided machinery for bringing into play a tribunal which had power to decide the same. That these powers were exerted concerning controversies between the states of the most serious character again cannot be disputed. But the mechanism devised for their solution proved unavailing because of a want of power in Congress to enforce the findings of the body charged with their solution, a deficiency of power which was generic because resulting from the limited authority over the states conferred by the Articles of Confederation on Congress as to every subject. That this absence of power to control the governmental attributes of the states for the purpose of enforcing findings concerning disputes between them gave rise to the most serious consequences and brought the states to the very verge of physical struggle and resulted in the shedding of blood and would, if it had not been for the adoption of the Constitution of the United States, it may be reasonably assumed, have rendered nugatory the great results of the Revolution, is known to all and will be found stated in the authoritative works on the history of the time.6 Throwing this light upon the constitutional provisions, the conferring on th § court of original jurisdiction over controversies between states, the taking away of all authority as to war and armies from the states and granting it to Congress, the prohibiting the states also from making agreements or compacts with each other without the consent of Congress, at once makes clear how completely the past infirmities of power were in mind and were provided against. This result stands out in the boldest possible relief when it is borne in mind that not a want of authority in Congress to decide controversies between states, but the absence of power in Congress to enforce as against the governments of the states its decisions on such subjects, was the evil that cried aloud for cure, since it must be patent that the provisions written into the Constitution, the power which was conferred upon Congress and the judicial power as to states created, joined with the prohibitions placed upon the states, all combined to unite the authority to decide with the power to enforce—a unison which could only have arisen from contemplating the dangers of the past and the unalterable purpose to prevent their recurrence in the future. And, while it may not materially add to the demonstration of the result stated, it may serve a useful purpose to direct attention to the probable operation of tradition upon the mind of the framers, shown by the fact that, harmonizing with the practice which prevailed during the colonial period in the Privy Council, the original jurisdiction as conferred by the Constitution on this court embraced not only controversies between states but between private individuals and a state—a power which following its recognition in Chisholm v. Georgia, 2 Dall. 419, 1 L. Ed. 440, was withdrawn by the adoption of the Eleventh Amendment. The fact that in the Convention, so far as the published debates disclose, the provisions which we are considering were adopted without debate, it may be inferred, resulted from the necessity of their enactment as shown by the experience of the colonies and by the specter of turmoil if not war which, as we have seen, had so recently arisen from the disputes between the states, a danger against the recurrence of which there was a common purpose efficiently to provide. And it may well be that a like mental condition accounts for the limited expressions concerning the provisions in question in the proceedings for the ratification of the Constitution which followed, although there are not wanting one or two instances where they were referred to which when rightly interpreted make manifest the purposes which we have stated.7 The state, then, as a governmental entity having been subjected by the Constitution to the judicial power under the conditions stated, and the duty to enforce the judgment by resort to appropriate remedies being certain even although their exertion may operate upon the governmental powers of the State, we are brought to consider the second question, which is: 2. What are the appropriate remedies for such enforcement? Back of the consideration of what remedies are appropriate, whether looked at from the point of view of the exertion of equitable power or the application of legal remedies extraordinary in character (mandamus, etc.) lies the question what ordinary remedies are available, and that subject must necessarily be disposed of. As the powers to render the judgment and to enforce it arise from the grant in the Constitution on that subject, looked at from a generic point of view, both are federal powers, and comprehensively considered are sustained by every authority of the federal government, judicial, legislative or executive, which may be appropriately exercised. And confining ourselves to a determination of what is appropriate in view of the particular judgment in this cause, two questions naturally present themselves: (a) The power of Congress to legislate to secure the enforcement of the contract between the states; and (b) the appropriate remedies which may by the j dicial power be exerted to enforce the judgment. We again consider them separately. (a) The power of Congress to legislate for the enforcement of the obligation of West Virginia. The vesting in Congress of complete power to control agreements between states, that is, to authorize them when deemed advisable and to refuse to sanction them when disapproved, clearly rested upon the conception that Congress as the repository, not only of legislative power, but of primary authority to maintain armies and declare war, speaking for all the states and for their protection, was concerned with such agreements, and therefore was virtually endowed with the ultimate power of final agreement which was withdrawn from state authority and brought within the federal power. It follows as a necessary implication that the power of Congress to refuse or to assent to a contract between states carried with it the right, if the contract was assented to and hence became operative by the will of Congress, to see to its enforcement. This must be the case unless it can be said that the duty of exacting the carrying out of a contract is not, within the principle of McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579, relevant to the power to determine whether the contract should be made. But the one is so relevant to the other as to leave no room for dispute to the contrary. Having thus the power to provide for the execution of the contract, it must follow that the power is plenary and complete, limited of course as we have just said by the general rule that the acts done for its exertion must be relevant and appropriate to the power. This being true it further follows, as we have already seen, that by the very fact that the national power is paramount in the area over which it extends, the lawful exertion of its authority by Congress to compel compliance with the obligation resulting from the contract between the two states which it approved is not circumscribed by the powers reserved to the states. Indeed the argument that the recognition of such a power in Congress is subversive of our constitutional institutions from its mere statements proves to the contrary, since at last it comes to insisting that any one state may by violating its obligations under the Constitution take away the rights of another and thus destroy constitutional government. Obviously if it be conceded that no power obtains to enforce as against a state its duty under the Constitution in one respect and to prevent it from doing wrong to another state, it would follow that the same principle would have to be applied to wrongs done by other states, and thus the government under the Constitution would be not an indissoluble union of indestructible states but a government composed of states each having the potency with impunity to wrong or degrade another a result which would inevitably lead to a destruction of the union between them. Besides it must be apparent that to treat the power of Congress to legislate to secure the performance by a state of its duty under the Constitution, that is, its continued respect for and obedience to that instrument, as coercion, comes back at last to the theory that any one state may throw off and disregard without sanction its obligation and subjection to the Constitution. A conclusion which brings at once to the mind the thought that to maintain the proposition now urged by West Virginia would compel a disregard of the very principles which led to the carving out of that state from the territory of Virginia; in other words, to disregard and overthrow the doctrines irrevocably settled by the great controversy of the Civil War, which in their ultimate aspect find their consecration in the amendments to the Constitution which followed. Nor is there any force in the suggestion that the existence of the power in Congress to legislate for the enforcement of a contract made by a state under the circumstances here under consideration is incompatible with the grant of origina jurisdiction to this court to entertain a suit between the states on the same subject. The two grants in no way conflict but co-operate and co-ordinate to a common end; that is, the obedience of a state to the Constitution by performing the duty which that instrument exacts. And this is unaffected by the fact that the power of Congress to exert its legislative authority as we have just stated it also extends to the creation of new remedies in addition to those provided for by section 14 of the Judiciary Act Sept. 24, 1789 (1 Stat. 81, c. 20, now section 262, Judicial Code [Act March 3, 1911, c. 231, 36 Stat. 1162; Comp. St. 1916, § 1239]) to meet the exigency occasioned by the judicial duty of enforcing a judgment against a state under the circumstances as here disclosed. We say this because we think it is apparent that to provide by legislative action additional process relevant to the enforcement of judicial authority is the exertion of a legislative and not the exercise of a judicial power. This leaves only the second aspect of the question now under consideration. (b) The appropriate remedies under existing legislation. The remedy sought, as we have at the outset seen, is an order in the nature of mandamus commanding the levy by the Legislature of West Virginia of a tax to pay the judgment. In so far as the duty to award that remedy is disputed merely because authority to enforce a judgment against a state may not affect state power, the contention is adversely disposed of by what we have said. But this does not dispose of all the contentions between the parties on the subject, since on the one hand it is insisted that the existence of a discretion in the Legislature of West Virginia as to taxation precludes the possibility of issuing the order, and on the other hand it is contended that the duty to give effect to the judgment against the state, operating upon all state powers, excludes the legislative discretion asserted and gives the resulting right to compel. But we are of opinion that we should not now dispose of such question and should also now leave undetermined the further question, which as the result of the inherent duty resting on us to give effect to the judicial power exercised we have been led to consider on our own motion; that is, whether there is power to direct the levy of a tax adequate to pay the judgment and provide for its enforcement irrespective of state agencies. We say this because, impelled now by the consideration of the character of the parties which has controlled us during the whole course of the litigation, the right judicially to enforce by appropriate proceedings as against a state and its governmental agencies having been determined, and the constitutional power of Congress to legislate in a twofold way having been also pointed out, we are fain to believe that if we refrain now from passing upon the questions stated, we may be spared in the future the necessity of exerting compulsory power against one of the states of the Union to compel it to discharge a plain duty resting upon it under the Constitution. Indeed, irrespective of these considerations, upon the assumption that both the requirements of duty and the suggestions of selfinterest may fail to bring about the result stated, we are nevertheless of the opinion that we should not now finally dispose of the case, but because of the character of the parties and the nature of the controversy, a contract approved by Congress and subject to be by it enforced, we should reserve further action in order that full opportunity may be afforded to Congress to exercise the power which it undoubtedly possesses. Giving effect to this view, accepting the things which are irrevocably foreclosed—briefly stated, the judgment against the state operating upon it in all its governmental powers and the duty to enforce it viewed in that aspect—our conclusion is that the case should be restored to the docket for further argument at the next term after the February rece s. Such argument will embrace the three questions left open: 1. The right under the conditions previously stated to award the mandamus prayed for. 2. If not, the power and duty to direct the levy of a tax as stated. 3. If means for doing so be found to exist, the right, if necessary, to apply such other and appropriate equitable remedy by dealing with the funds or taxable property of West Virginia or the rights of that state as may secure an execution of the judgment. In saying this, however, to the end that if on such future hearing provided for the conclusion should be that any of the processes stated are susceptible of being lawfully applied (repeating that we do not now decide such questions) occasion for a further delay may not exist, we reserve the right, if deemed advisable, at a day hereafter before the end of the term or at the next term before the period fixed for the hearing, to appoint a master for the purpose of examining and reporting concerning the amount and method of taxation essential to be put into effect, whether by way of order to the state Legislature or direct action, to secure the full execution of the judgment, as well as concerning the means otherwise existing in the state of West Virginia, if any, which by the exercise of the equitable powers in the discharge of the duty to enforce payment may be available for that purpose. And it is so ordered.

243.US.46

No. 21, Original. Submitted November 20, 1916.--Order made March 6 1917.

George W. Radford was admitted to practice in the supreme court of the state of Michigan on the 15th day of June, 1876, About ten years thereafter, on March 18, 1886, upon the representation that he had been for the three years preceding, a member of the Bar of the highest court of the state of Michigan, and upon the further assurance, both conformably with rule 2 of this court, that his private and professional character appeared to be fair, he was permitted to become a member of the Bar of this court. Represented by the Solicitor General of the United States, the petitioners, as a committee of the Association of the Bar of the City of Detroit, specially appointed for that purpose, seek to procure an order striking Radford from the roll of the members of the Bar of this court on the ground of his personal unworthiness to continue as a member of such Bar. And, in coming to consider their request, we unselfishly understand their sense of pain at being called on to discharge the duty which they perform. The original petition filed for that purpose alleged that in a suit brought in a designated court of original jurisdiction in Michigan for the purpose of disbarring Radford for professional misconduct amounting to moral wrong, he had, after notice and full hearing, been found to have committed the wrongful acts complained of, and had been disbarred, and that such judgment had been approved by the supreme court of Michigan in a proceeding by certiorari taken to consider the same. Annexed to the petition was a copy of the opinion and order of disbarment entered by the court of original jurisdiction, as well as a copy of the opinion and order of the supreme court of the state in the certiorari proceeding, the same being reported in 168 Mich. 474, 134 N. W. 472. It was alleged in the petition that, notwithstanding the fact that Radford had, by the final action of the supreme court of the state of Michigan, been stricken from the rolls of the courts in that state for the reasons previously stated, he had continued in the city of Detroit to hold himself out as a practising lawyer entitled to respect and confidence as such because of the fact that he continued to be a member of the Bar of this court, unaffected by the order of disbarment by the courts of the state. After reciting the unseemly condition produced by these circumstances and the disrespect for the state courts which was naturally implied, the prayer was for a rule to show cause and for the awarding, on the return to such rule, of the order of disbarment which was sought. An answer was made to the rule to show cause and a brief filed in support of the same, as to which we think it suffices to say for our present purposes that both the answer and the brief take a much wider range than is permissible, and rely upon much that is here irrelevant, not to say in some respects improper to be considered, as the prayer for the enforcement of the judgment of the court of last resort of Michigan is not to be converted into a trial of the courts of that state or of the members of the Detroit Bar Association on behalf of which the petition was filed. Beyond all question, when admission to the Bar of this court is secured, that right may not be taken away except by the action of this court. While this is true, it is also true that the character and scope of the investigation to be made on a prayer for disbarment, before sanction is given to it, must depend upon the character of the acts of misconduct and wrong relied upon, of the place of their commission, and the nature of the proof relied upon to establish their existence. While, moreover, it is true that the two conditions membership of the Bar of the court of last resort of a state and fair private and professional character—are prerequisites to admission here, there is a wide difference in the nature and effect of the two requirements. This follows, because the first, although a prerequisite to admission here, is ephemeral in its operation, since its effect is exhausted upon admission to this Bar which it has served to secure,—a result which becomes manifest by the consideration that although the membership of the Bar of the court of last resort of a state, after admission here, might be lost by change of domicil from one state to another, if so provided by the state law or rule of court, or by any other cause not involving unworthiness, such loss would be wholly negligible upon the right to continue to be a member of the Bar of this court. The second exaction, on the contrary, is not ephemeral, and its influence is not exhausted when the admission based upon it is secured, since the continued possession of a fair private and professional character is essential to the right to be a member of this Bar. It follows, therefore, that the personality of the member and these inherent and prerequisite qualifications for membership of this Bar are indivisible; that is, inseparable. They must, if they exist, follow the personality of one who is a member of the Bar, and hence their loss by wrongful personal and professional conduct, wherever committed, operates everywhere, and must, in the nature of things, furnish adequate reason in every jurisdiction for taking away the right to continue to be a member of the Bar in good standing. In the light of these conclusions, the question is, What, consistently with the duty which rests upon us, is exacted in dealing with the situation now presented? In coming to solve that question three things are patent: (a) that we have no authority to re-examine or reverse, as a reviewing court, the action of the supreme court of Michigan in disbarring a member of the Bar of the courts of that state for personal and professional misconduct; (b) that the order of disbarment is not binding upon us as the thing adjudged in a technical sense; and (c) that albeit this is the case, yet, as we have previously shown, the necessary effect of the action of the supreme court of Michigan, as long as it stands unreversed, unless for some reason it is found that it ought not to be accepted or given effect to, has been to absolutely destroy the condition of fair private and professional character, without the possession of which there could be no possible right to continue to be a member of this Bar. Meeting this situation, we are of opinion that, on the case presented, our duty is not to review the action of the state court of last resort,—a power which we do not possess,—but wholly to abdicate our own functions by treating its judgment as the thing adjudged, excluding all inquiry on our part, and yet not, in considering the right of one to continue to be a member of the Bar of this court, to shut our eyes to the status, as it were, of unworthiness to be such a member which the judgment must be treated as having established, unless for some reason we deem that consequence should not now be accepted. In other words, in passing upon the question of the right to continue to be a member of the Bar of this court, we think we should recognize the absence of fair private and professional character inherently arising as the result of the action of the supreme court of Michigan so far as we are at liberty to do so consistently with the duty resting upon us to determine for ourselves the right to continue to be a member of this Bar. That is to say, we are of opinion that we should recognize the condition created by the judgment of the state court unless, from an intrinsic consideration of the state record, one or all of the following conditions should appear: 1. That the state procedure, from want of notice or opportunity to be heard, was wanting in due process; 2, that there was such an infirmity of proof as to facts found to have established the want of fair private and professional character as to give rise to a clear conviction on our part that we could not, consistently with our duty, accept as final the conclusion on that subject; or 3, that some other grave reason existed which should convince us that to allow the natural consequences of the judgment to have their effect would conflict with the duty which rests upon us not to disbar except upon the conviction that, under the principles of right and justice, we were constrained so to do. In concluding that our duty is to give effect to the finding of the state court establishing the want of fair private and professional character, subject to the limitations stated, we confine ourselves to the case before us, and therefore do not in the slightest degree call in question the ruling in Ex parte Tillinghast, 4 Pet. 108, 7 L. ed. 798, that a mere punishment for contempt by an inferior Federal court was not a sufficient ground for preventing admission to the Bar of this court, there being nothing to indicate that the action of the inferior court was based upon the doing of acts which inherently and necessarily deprived the applicant of the fair private and professional character essential to admission. Thus defining what is open to our consideration, we think we ought not to foreclose the subject on the answer made to the rule to show cause in the proceeding which is now before us, but that an opportunity should be afforded the respondent, confining himself to the propositions stated, if he is so advised, to file the record or records of the state court within thirty days from this date with permission by printed brief, considering the record intrinsically, to point out any ground within the limitations stated which should prevent us from giving effect to the conclusions established by the action of the supreme court of Michigan which is now before us, as we have seen, as part of the petition we are now considering. It is so ordered.

245.US.359

Where the complaint states a cause of action against a common carrier for loss or damage in transit to goods shipped in interstate commerce, the case is removable from the state to the District Court, as one arising under a law of the United States (the Carmack Amendment) if, as required by the Act of January 20, 1914, c. 11, 38 Stat. 278, the amount in controversy exceeds the sum or value of $3,000.00, exclusive of interest and costs. In a case of interstate shipment governed by the Carmack Amendment, it is to be presumed-the complaint being silent on the subject-that the carrier issued a receipt or bill of lading, as the Amendment requires. Though an action be removable from the state to the District Court as one arising under a federal law, yet, if the defendant remove it upon a petition resting solely on the ground of diverse citizenship, the jurisdiction of the District Court must be deemed to have been invoked upon that ground alone, and, consequently, under Judicial Code, §§ 128, 241, a judgment of the Circuit Court of Appeals in the case is not reviewable in this court by writ of error. Writ of error to review 233 Fed. Rep. 956, dismissed.

Frank R. Stewart began this action against the Southern Pacific Company, a common carrier, in the superior court of Arizona for the county of Maricopa. In his complaint he set out that he delivered certain cattle to the Southern Pacific Company to be carried from San Luis Obispo, California, to Phoenix, Arizona, in consideration of the freight to be paid to the company as measured by the rate applicable to the shipment and carriage of live stock in carload lots from the point of shipment to the point of destination as the same was published and on file with the Interstate Commerce Commission. The complaint alleged that in consideration of the freight charges the company undertook to deliver the cattle in good condition at Phoenix, Arizona, and set forth that the cattle were handled and transported in such a negligent and careless manner that five of them died in Yuma, Arizona, a station on the line of the company; that the remainder were delivered to the plaintiff at Phoenix, Arizona, in such injured condition that six more of them died, and eighty-seven of them were seriously injured, and depreciated in value as a result of negligent handling and transportation of the cattle as set forth in the complaint. The company upon petition and bond duly filed removed the case to the United States District Court for the District of Arizona, the same was tried in the District Court, and resulted in a verdict and judgment against the company, which was affirmed by the United States Circuit Court of Appeals for the Ninth Circuit; a writ of error brings the case here. The case is before us on motion to dismiss on the ground that the judgment of the Circuit Court of Appeals is final. The judgment of the Circuit Court of Appeals is final, among other cases, in those in which the jurisdiction, meaning that of the District Court, is dependent entirely upon the opposite parties to the suit or controversy being citizens of different states. Judicial Code, § 128, 36 Stat. 1157. The removal to the District Court of the United States was made upon a petition which set forth as a ground for removal the diversity of citizenship of the parties; no other ground for removal was in any manner alleged in the petition. A suit is removable from a state court to the United States District Court when it arises under the Constitution or laws of the United States, or treaties made under their authority, of which the District Courts of the United States are given original jurisdiction; any other suit of a civil nature at law or in equity, of which the District Courts of the United States are given jurisdiction may be removed into the District Court of the United States by the defendant, or defendants, being nonresidents of the state. Judicial Code, § 28. By the amendment of January 20, 1914, 38 Stat. 278, it is provided that no suit brought in any state court of competent jurisdiction against a railroad company, or other common carrier, to recover damages for delay, loss of, or injury to property received for transportation by such common carrier, under section 20 (which includes the Carmack Amendment) of the act to regulate interstate commerce as amended, shall be removed to any court of the United States where the amount in controversy does not exceed, exclusive of interest and costs, the sum or value of $3,000. In this case the plaintiff sought to recover more than $3,000, and in view of the allegations of the complaint it may be conceded that the action being for loss or injury to cattle shipped in interstate commerce for transportation by a common carrier this suit is one which arose under a law of the United States, and might have been removed to a federal court on that ground. See Northern Pacific R. Co. v. Wall, 241 U. S. 87, 36 Sup. Ct. 493, 60 L. Ed. 905; Georgia, F. & A. R. Co. v. Blish Mill Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 L. Ed. 948; Cincinnati, N. O. & T. P. R. Co. v. Rankin, 241 U. S. 319, 36 Sup. Ct. 555, 60 L. Ed. 1022, L. R. A. 1917A, 265; St. Louis Iron Mt. & Southern R. R. Co. v. Starbird, Adm'r, 243 U. S. 592, 595, 596, 597, 37 Sup. Ct. 462, 61 L. Ed. 917. The Carmack Amendment requires the carrier receiving property for transportation between points in different states to issue a receipt or bill of lading therefor and makes the carrier liable to the lawful holder thereof for any loss, damage or injury to such property. While there is no specific allegation in the complaint that such bill of lading or receipt was issued, as the law makes it the duty of the carrier to issue the same the presumption is that such duty was complied with. Cincinnati, N. O. & T. P. R. Co. v. Rankin, supra, 241 U. S. 319, 327, 36 Sup. Ct. 555, 60 L. Ed. 1022, L. R. A. 1917A, 265; N. Y. Central, etc., R. R. v. Beaham, 242 U. S. 148, 151, 37 Sup. Ct. 43, 61 L. Ed. 210. While it thus appears that the suit might have been removed to the federal court because of the federal nature of the cause of action upon which it was brought, it was nevertheless within the jurisdiction of the state court, and that court might have proceeded to final judgment had not the defendant seen fit to remove the suit to the federal court. Congress has not only provided for classes of cases wherein removal may be effected from the state to the federal courts, but has provided process by which such removals may be effected. Section 29 of the Judicial Code provides that the party desiring to remove the suit from the state court to the United States District Court may apply for removal by petition duly verified in the suit in the state court, at the time, or at any time before the defendant is required by the laws of the state or the rules of the court to answer or plead to the declaration of the plaintiff. Provision is also made for the filing of a bond requiring that the defendant shall enter in the District Court of the United States within thirty days of filing such petition a certified copy of the record in the suit, and for paying costs in the event that the United States District Court holds that such suit was improperly removed; it is then made the duty of the state court to accept the petition and bond and proceed no further in the suit. It is essential to the removal of a cause that the petition, provided for by the statute, be filed with the state court within the time fixed by statute, unless the time be in some manner waived. Martin's Adm'r v. B. & O. Railroad Co., 151 U. S. 673, 14 Sup. Ct. 533, 38 L. Ed. 311. True, there are cases in which it has been held that a removal may be accomplished after the time to answer or appear has expired, when the complainant changes the cause of action by amendment so as to make a case removable, which was not so before, as in Powers v. Chesapeake & Ohio R. R. Co., 169 U. S. 92, 18 Sup. Ct. 264, 42 L. Ed. 673. Amendments have been permitted so as to make the allegations of the removal petition more accurate and certain when the amendment is intended to set forth in proper form the ground of removal already imperfectly stated. See Kinney v. Columbia Savings, etc., Ass'n, 191 U. S. 78, 24 Sup. Ct. 30, 48 L. Ed. 103, and the review of previous cases in this court contained in the opinion in that case. The petition for removal in this instance made no reference to any ground of removal because of a cause of action arising upon a federal statute. The petition which required the state court to give up its own jurisdiction, and transfer the cause to the federal court, was based solely upon the allegation of diversity of citizenship. We are thus presented with the question whether a case removed solely upon the ground of diversity of citizenship, although the complaint contained a cause of action arising under a federal statute, after judgment in the Circuit Court of Appeals, may be brought by a writ of error to this court. Cases not made final in the United States Circuit Court of Appeals may be brought to this court when the matter in controversy exceeds $1,000 besides costs. Judicial Code, § 241. As the amount in controversy herein exceeds $1,000 the jurisdiction of this court depends upon whether the jurisdiction of the District Court, to which the cause was removed, depended entirely upon the opposite parties being citizens of different states. The jurisdiction referred to, it has come to be settled, means the jurisdiction of the United States District Court as originally invoked. Huguley Mfg. Co. v. Galeton Cotton Mills, 184 U. S. 290, 22 Sup. Ct. 452, 46 L. Ed. 546, and previous cases in this court cited in the opinion of Mr. Chief Justice Fuller, who spoke for the court in that case. In McFadden v. United States, 213 U. S. 288, 29 Sup. Ct. 490, 53 L. Ed. 801, the subject was examined under sections 5 and 6 of the Court of Appeals Act now incorporated into the Judicial Code in sections 128 and 241. Mr. Justice Moody, who spoke for the court in that case, pointed out that finality of cases in the Circuit Court of Appeals as governed by section 6, was determined, not by the nature of the case nor by the questions of law raised, but by the sources of jurisdiction of the trial court; whether its jurisdiction rested upon the character of the parties or the nature of the case, and he quoted with approval the language of Mr. Chief Justice Fuller in Huguley Mfg. Co. v. Galeton Cotton Mills, supra, wherein it was said the jurisdiction referred to is the jurisdiction of the Circuit Court 'as originally invoked.' This principle was applied in Spencer v. Duplan Silk Company, 191 U. S. 526, 24 Sup. Ct. 174, 48 L. Ed. 287, in which a suit was brought by a trustee in bankruptcy in a state court against the Silk Company to recover in trover for certain lumber the property of the bankrupt wrongfully converted, it was alleged, to the use of the defendant. The case was removed from the state court upon a petition alleging that the controversy in the suit was wholly between citizens of different states. A trial was had resulting in a verdict in favor of the plaintiff, this judgment was reversed by the Circuit Court of Appeals for the Third Circuit, and a writ of error was allowed to this court. The writ of error was dismissed as being within the rule which made the judgments of the Circuit Courts of Appeal final when the jurisdiction of the trial court depended entirely upon diversity of citizenship. Mr. Chief Justice Fuller, speaking for the court, in the course of the opinion reached the conclusion that the case was not to be treated as one commenced in the federal court by consent of the defendant under section 23 of the Bankruptcy Act (Comp. St. 1916, § 9607). In concluding the discussion of the subject, the Chief Justice said: 'Plaintiff brought his action in the state court, and its removal on the ground of diverse citizenship placed it in the Circuit Court as if it had been commenced there on that ground of jurisdiction, and not as if it had been commenced there by consent of defendant under section 23 of the Bankruptcy Act. The right to removal is absolute, and cannot be trammeled by such a consequence.' It may be conceded, for the sake of the argument, that the grounds of removal might have been amended by including in the petition the federal ground of action set up in the complaint, but no attempt at amendment was made, and the removal to the District Court of the United States was upon a petition resting solely on the ground of diverse citizenship. We are of opinion that it follows that the jurisdiction of the federal court was invoked solely on that ground and that fact determines the right to a review in this court of the judgment of the United States Circuit Court of Appeals against the contention of the plaintiff in error. It follows that the writ of error must be dismissed. Dismissed. The CHIEF JUSTICE dissents.

244.US.200

The claim that the Federal Employers' Liability Act should have governed the action will not afford jurisdiction under Judicial Code, § 237, where the action was originally based upon a state statute and the federal act was not set up or relied upon in the answer or otherwise called to the trial court's attention and where the state supreme court, following the state statutes and established practice, declined to pass upon the claim because not presented to the trial court. Writ of error to review 186 S. W. Rep. 688, dismissed.

Charles H. Small was killed at Kansas City while employed by plaintiff in error as a switchman. Relying upon a state statute, the guardian of his minor children sued for damages in the Jackson county circuit court and recovered a judgment which the supreme court of Missouri affirmed, May 15, 1916. We are asked to reverse that action because the Federal Employers' Liability Act was not applied, but rights and liabilities were determined according to state laws. Unless some right, privilege, or immunity under the Federal act was duly and especially claimed, we have no jurisdiction. Judicial Code, § 237 [36 Stat. at L. 1156, chap. 231, Comp. Stat. 1916, § 1214]. Speaking for the court in Erie R. Co. v. Purdy, 185 U. S. 148, 154, 46 L. ed. 847, 850, 22 Sup. Ct. Rep. 605, Mr. Justice Harlan announced the applicable rule: 'Now, where a party drawing in question in this court a state enactment as invalid under the Constitution of the United States, or asserting that the final judgment of the highest court of a state denied to him a right or immunity under the Constitution of the United States—did not raise such question or especially set up or claim such right or immunity in the trial court, this court cannot review such final judgment and hold that the state enactment was unconstitutional, or that the right or immunity so claimed had been denied by the highest court of the state, if that court did nothing more than decline to pass upon the Federal question because not raised in the trial court, as required by the state practice. Spies v. Illinois, 123 U. S. 131, 181, 31 L. ed. 80, 91, 8 Sup. Ct. Rep. 21, 22; Miller v. Texas, 153 U. S. 535, 538, 38 L. ed. 812, 813, 14 Sup. Ct. Rep. 874; Morrison v. Watson, 154 U. S. 111, 115, 38 L. ed. 927, 929, 14 Sup. Ct. Rep. 995.' The original action was based upon a state statute; the answer did not set up or rely upon the Federal act; the trial court's attention was not called thereto; and although urged to hold liability depended upon it, the supreme court declined to pass upon that point because not presented to the trial court. This ruling seems in entire accord with both state statutes and established practice. Mo. Rev. Stat. 1909, § 2081; St. Louis Nat. Bank v. Flanagan, 129 Mo. 178, 31 S. W. 773; Freeland v. Williamson, 220 Mo. 217, 119 S. W. 560. The writ must be dismissed. Dismissed.

244.US.294

A patent owner sued for infringement in two circuits, the defendants being, in one case, a corporation which manufactured the articles complained of, and, in the other, a second corporation whose shares were owned, and whose conduct was controlled, by the first and which, with its manager (joined with it as co-defendant), was acting as the selling agent of the first corporation under its authority and in its interest. The subject-matter and relief prayed were the same in both suits. Held, that there was such privity between the defendants that a judgment against the plaintiff rendered by the Circuit Court of Appeals in the suit against the manufacturer was res judicata as to the other suit, then pending before the Circuit Court * of Appeals for the other circuit. A decree against the plaintiff in a patent infringement suit was affirmed by the Circuit Court of Appeals for the Sixth Circuit while its appeal from a like decree in another suit involving the same controversy was pending unheard before the Circuit Court of Appeals for the Seventh Circuit. Held, that a motion for an affirmance, seasonably made to the latter court and supported by certified copies of the record and journal entries in the other case, establishing legal identity of the subject-matter and privity of the parties, was a proper means of interposing the defense of res judicata, and that the motion should have been granted. 222 Fed. Rep. 261, reversed.

This suit is here on certiorari to review the decision of the circuit court of appeals for the seventh circuit. On December 9, 1908, the respondent herein, the Railroad Supply Company, as owner of three United States patents, viz., Nos. 538,809, 691,332, and 721,644, filed a bill in the district court for the northern district of Illinois against the Hart Steel Company and Guilford S. Wood, praying that the defendants be restrained from infringing certain designated claims of its patents, which are described in their specifications as covering new and useful improvements in railway tie plates. This case will be hereinafter referred to as the First Case. Three months later, on March 26, 1909, the same plaintiff commenced a second suit against the Elyria Iron & Steel Company in the district court for the northern district of Ohio, praying for the same relief with respect to the same claim of the same patents as in the First Case. The two bills differed only as to the parties defendant. The Elyria Iron & Steel Company, the defendant in the Second Case, was a manufacturing corporation and was the owner of all of the capital stock of the Hart Steel Company, the defendant in the First Case, which was the selling agent of the Elyria Company, and Wood was its manager. The same defenses being relied upon in the two cases, the evidence was taken in the first one, and by stipulation a carbon copy of it was filed in the second, and the same exhibits were used in the two. The claimed infringement consisted in the manufacture of a single order of tie plates by the Elyria Company and the sale of them by the Hart Company, with Wood as its manager, to the Atchison, Topeka, & Santa Fe Railroad Company. Such proceedings were had in the First Case that on December 18, 1911, the circuit court for the northern district of Illinois decided that the construction or device sold by the defendants did not infringe the claims of the plaintiff's patents relied upon, and dismissed the bill for want of equity. In the Second Case such proceedings were had that on March 4, 1912, the district court for the northern district of Ohio entered precisely the same decree as was entered in the First Case. Each case was appealed to the appropriate circuit court of appeals and on April 7, 1914, that court for the sixth circuit, in a carefully considered opinion, found the claims of the patents relied upon void for want of novelty and invention, and affirmed the decision of the district court. A petition for rehearing was denied on the 30th day of the following June. On the 6th day of October, 1914, the first day of the next ensuing term of the circuit court of appeals for the seventh circuit, the defendants in the first suit, which was still pending undetermined, filed a motion praying that court to affirm the decree of the circuit court, upon the ground that all of the issues in the case had been fully and finally determined and adjudicated by the circuit court of appeals of the sixth circuit in the Second Case between the plaintiff and the Elyria Iron & Steel Company, with which the moving defendants, the Hart Steel Company and Guilford S. Wood, were in privity. In support of this motion a copy of the record and journal entries in the Second Case was filed, which showed that the two records were 'identical.' The record shows that this motion to affirm the decree of the circuit court was argued orally on October 6, 1914, and was on the same day denied, but no reason appears in the record for such denial. Subsequently the case was argued on its merits and on January 5th, 1915, the circuit court of appeals for the seventh circuit found the plaintiff's patents valid and infringed, and, reversing the decision of the circuit court (then the district court), remanded the case with an order for an accounting. The Hart Steel Company and Wood, as petitioners in this court, assign as error the overruling by the circuit court of appeals of the seventh circuit of their motion to affirm the decision of the circuit court in their favor. It is apparent from the foregoing statement that the question presented to the circuit court of appeals of the seventh circuit by the petitioners' motion to affirm was whether or not the decree of the circuit court of appeals of the sixth circuit was a final determination of the issues presented in the case pending and not yet argued in the circuit court of appeals of the seventh circuit so as to be res judicata and binding on that court because of the identity of the subject-matter and the claims and because of the privity of the parties. The doctrine of res judicata is fully applicable to cases of patent infringement (Robinson, Patents, § 983; Walker, Patents, § 468), and while the record does not show the grounds upon which the motion to affirm was overruled, it does show that the motion was argued, was considered by the court, and denied. If authority be needed to the point that the claim thus made for the effect of the judgment of the circuit court of appeals of the sixth circuit was presented properly and in time, it may be found in Stout v. Lye, 103 U. S. 66, 26 L. ed. 428; Sheldon v. Patterson, 55 Ill. 507; Howard v. Mitchell, 14 Mass. 241. There can be no doubt from the record before us that the Elyria Company owned all of the capital stock of the Hart Company, that the latter company was a mere sales agent of the former, that Wood was the salaried manager of the latter, that both the Hart Company and Wood were agents, subject to the control of the Elyria Company, and that in selling the tie plates and as defendants in the litigation they acted wholly under the authority and in the interest of their principal. Identity of interest could not be clearer or closer than it was between the defendants in the two cases,—they represented precisely the same, single interest, and the Hart Company and Wood, as agents of the Elyria Company, were obviously and necessarily privies to the judgment rendered in its favor in the circuit court of appeals for the sixth circuit. Bank of Kentucky v. Stone, 88 Fed. 383, affirmed in Kentucky Bank Tax Cases, 174 U. S. 408 (43 L. ed. 1187, 19 Sup. Ct. Rep. 881); Emery v. Fowler, 39 Me. 329, 63 Am. Dec. 627; Castle v. Noyes, 14 N. Y. 326; Emma Silver Min. Co. v. Emma Silver Min. Co. 7 Fed. 401. With the identity of the subject-matter and issues of the two cases admitted, the privity of parties to them clear, and the question of the ruling effect of the decree of the circuit court of appeals for the sixth circuit presented in an appropriate manner to the circuit court of appeals of the seventh circuit, a court of co-ordinate jurisdiction, we cannot doubt that the latter court fell into error in not sustaining the motion of the petitioners to affirm the decision of the circuit court. The defendants should not have been put to further expense, delay, and trouble after the motion was presented. The question is ruled by Kessler v. Eldred, 206 U. S. 285, 51 L. ed. 1065, 27 Sup. Ct. Rep. 611; Brill v. Washington R. & Electric Co. 215 U. S. 527, 54 L. ed. 311, 30 Sup. Ct. Rep. 177; and Russell v. Place, 94 U. S. 606, 24 L. ed. 214. This doctrine of res judicata is not a mere matter of practice or procedure inherited from a more technical time than ours. It is a rule of fundamental and substantial justice, 'of public policy and of private peace,' which should be cordially regarded and enforced by the courts to the end that rights once established by the final judgment of a court of competent jurisdiction shall be recognized by those who are bound by it in every way, wherever the judgment is entitled to respect. Kessler v. Eldred, supra. The conclusion which we have reached in the Second Case, Railroad Supply Co. v. Elyria Iron & Steel Co. this day decided [244 U. S. 285, 61 L. ed. ——, 37 Sup. Ct. Rep. 502], with respect to the merits of the patents involved in this litigation, is such that it leaves our decision in this case uncomplicated by the one in that. The decree of the Circuit Court of Appeals is reversed. Mr. Justice Day did not take any part in the decision of this case.

243.US.52

The State of New Mexico filed its bill in this- court naming the Secretary of the Interior and the Commissioner of the General Land Office as the parties defendant and praying that a tract of land, which the Interior Department had awarded and sold as coal land to an entryman under the coal land law, be decreed the property of the State by virtue of the school-land grant to the Territory of New Mexico, and the State's succession thereto; that the entry proceedings be decreed unlawful and that issuance of patent thereon be enjoined. Questions concerning the construction of the laws mentioned, and questions of fact concerning the character of the land and the knowledge of it, were involved. Held, that the suit must be dismissed as, in substance, a suit, against the United States. Louisiana v. Garfield, 211 U. S. 70. Semble, that the presence of the entryman as a party, he having purchased the land and paid the price, would be indispensable to the granting of the relief prayed. This court has no original jurisdiction of a suit by a State against citizens of other States I and citizens of the State complaining. Constitution, Art. III, § 2; California v. Southern Pacific Co., 157 U. S. 229. THE case is stated iDt he opinion.

Bill for injunction, in which the state of New Mexico asserts title in fee simple to the S. W. 1/4 of the N. E. 1/4 of section 16, township 15 N., R. 18 W., New Mexico principal meridian, under the school land grant of June 21, 1898, and prays to restrain the Interior Department from issuing a patent therefor to one Keepers. The bill exhibits the grounds of suit as follows: By § 1 of an act approved June 21, 1898, 30 Stat. at L. 484, chap. 489, there were granted to the territory of New Mexico sections 16 and 36 in every township in the state for the support of common schools. If such sections should be mineral, other lands were to be granted in lieu thereof, to be selected as provided in other sections of the act. Section 6 of an act approved June 20, 1910, 36 Stat. at L. 557, 561, chap. 310, which was an act to enable the people of New Mexico to form a constitution and state government and be admitted into the Union, granted, in addition to sections 16 and 36, sections 2 and 32 in every township in the propesed state, not otherwise appropriated at the date of the passage of the act. This grant also was for the support of the common schools. It was provided in § 10 that such lands and those theretofore granted were 'expressly transferred and confirmed to the said state,' and should 'be by the state held in trust,' etc. By § 12, except as modified or repealed by the act, all grants of lands were ratified and confirmed to the state, subject to the provisions of the act. On January 6, 1912, New Mexico was admitted to the Union on an equal footing with the other states, and became and is the beneficiary of the school land grant of June 21, 1898. Such grant had been held a grant in praesenti, under which absolute title in fee to all sections 16 and 36 in the territory which were at that date identified passed to the territory at the date of the approval of the act, unless known to be mineral, and no certificate or patent was necessary to pass such title. Township 15 N. of R. 18 was surveyed by the United States government in 1881. The survey was approved by the surveyor general of New Mexico November 30, 1881, and a township plat duly filed in the local land office, and the land became subject to disposal July 21, 1882, which was many years prior to the grant of June 21, 1898. Section 16 was not disposed of or otherwise reserved, and therefore passed to the territory by the grant of June 21, 1898, and the land described above was not at that time known to be mineral in character, and was not then known coal land under the interpretation of the coal-land law which had uniformly prevailed, in that at such date there had been no attempt on the part of anyone to discover or develop coal upon it, and no coal had been produced or extracted therefrom until 1911, thirteen years therefrom until 1911, thirteen years after the title in fee had vested in the territory. The decision of the Department and of the Supreme Court (this court) was that land could not be held to be 'known coal land' unless there had been a mine opened thereon and an actual production of coal in such quantity as to make the land more valuable on that account than for other purposes, and that such construction had become a rule of property, and title vested under it could not be devested by a change of construction. The construction was known to Congress when it passed the Act of June 21, 1898, was adopted by it when it enacted that act, and became the rule of construction for the future administration of the land, and the acceptance of the grant became an executed contract between the territory and the United States, to be construed and interpreted as then understood. Notwithstanding, the Commissioner of the General Land Office and the Secretary of the Interior have decided that a locator on the land, whose claim was filed in 1911, is entitled to have a patent for the tract above described, and they are about to issue a patent to him. On May 12, 1911, one George A. Keepers filed in the local land office at Santa Fe, New Mexico, a coal declaratory statement under § 2348, Rev. Stat. Comp. Stat. 1913, § 4660, for the land in controversy, and three days thereafter he applied to purchase the same as coal land under § 2347, Rev. Stat. Comp. Stat. 1913, § 4659, and publication of notice thereof, as provided by the mining laws and regulations of the Interior Department, was duly had, beginning May 19, 1911, and ending June 16, 1911. Within the period of publication protests were filed against the application, and the territory of New Mexico intervened, claiming the land under the Act of June 21, 1898, on the ground that it was not coal land at the date of the grant. A hearing was allowed to determine the land's character. It is conceded that the Commissioner of the General Land Office had the right and authority to determine the question whether the land was known coal land at the date of the grant of June 21, 1898. Nevertheless in such determination that official was restricted to ascertaining the single fact whether, at the date of the grant, a mine had been opened on the land or coal produced therefrom, and this was the sole question that he could investigate. But, notwithstanding, he undertook and directed a hearing 'to determine their true character' at the date of the hearing, which was in excess of his authority. At the hearing by the local land office, testimony was taken, largely addressed to the geological condition of the land, and no testimony was adduced showing that any coal had ever been produced or extracted from the land prior to the date of the Act of June 21, 1898, or for many years thereafter and up until 1911. Nevertheless it was decided, upon developments made subsequently to that date and on other matters subsequently occurring, including the subsequent classification of the land as coal land by the Geological Survey of 1907, that the land contained coal at the date of act, and was for that reason known coal land at that date. Upon appeal the ruling of the local officers was affirmed by the Commissioner and subsequently by the First Assistant Secretary of the Interior. There was no finding in his decision that the land was of known coal character at the date of the granting act, and the only fact relied upon was that certain 'disclosures' now, not then, indicated that the Black Diamond coal bed underlay a portion of the tract, which, even if known, would not, under the law as then construed and interpreted, have rendered the land known coal land. The decision, therefore, was purely arbitrary. The state duly filed a motion for rehearing, which was denied, and the decision promulgated, and the local officers directed to issue a final certificate to Keepers. The bill avers 'that when said final certificate shall be issued, as it undoubtedly has been, and upon its receipt at the General Land Office, the officials thereof, following the regulations of the Interior Department in such cases made and provided, will at once proceed to issue a patent to said Keepers, for said S. W. 1/4 of the N. E. 1/4 of said section 16, unless restrained by this honorable court in the meantime, which said tract is owned by and belongs to your orator as a part of its school-land grant which was vested immediately in fee in the territory of New Mexico, at the date of said school-land grant of June 21, 1898, to which right and title your orator has succeeded, as aforesaid, and such patent, if issued to said Keepers, will be a cloud upon the title of your orator to said tract, being an attempt, unlawfully, to deprive your orator of its title in fee simple thereto.' It is prayed that the Secretary of the Interior and the Commissioner of the General Land Office be subpoenaed to appear and answer the bill, but not under oath; that it be decreed that the title immediately vested in the territory of New Mexico at the date of the Act of June 21, 1898, and has become vested in the state as the successor of the territory; that the Secretary and Commissioner have not had, since the date of the act, or now have, authority to interfere with the state's title, and that they be enjoined from executing their orders and decision. General relief is also prayed. A motion to dismiss the bill is made on the grounds: (1) The United States is a necessary party because it appears the title to the land involved is in the United States, and that it is the purpose of the defendants to dispose of the land in accordance with the provisions of the mineral land laws of the United States, and that if the defendants be enjoined from executing such purpose the United States would be deprived of the purchase price of the land. (2) It appears from the bill that the state has no title or interest in the land because it was known coal land at the date of the passage of the Act of June 21, 1898, and was not intended to be granted nor granted to the territory of New Mexico by that act nor any subsequent act. (3) That complete inquiry was made by the officers of the Land Department, and they found the fact to be that at the date of the act the land was known to be valuable for mineral purposes. (4) It appears that one Keepers had purchased the land and therefore was an indispensable party. (5) The bill is in other respects uncertain, informal, and insufficient, and does not state facts sufficient to entitle the state to any relief. The motion should be granted on the ground that the suit is one against the United States, under the authority of Louisiana v. Garfield, 211 U. S. 70, 53 L. ed. 92, 29 Sup. Ct. Rep. 31. In that case a bill was brought in this court to establish the title of the state of Louisiana to certain swamp lands which it claimed under the statutes of the United States, and to enjoin the Secretary of the Interior and other officers of the Land Department from carrying out an order making different disposition of the land. Under the statute, it was contended, the land vested in the state in fee simple; that is, the act was contended to have the same character and efficacy as the Act of June 21, 1898, is asserted to have in the case at bar. And certain facts were necessary to be determined as elements of decision. This court said that in the case there were questions of law and of fact upon which the United States would have to be heard. So in the present case there is a question of law whether the Act of June 21, 1898, had the quality as a grant of the land, asserted of it, whether of itself or because of its terms or their prior construction and its adoption; indeed, whether there was such a prior construction or its adoption; and again, of the fact of the character of the land at the time of the grant, and the evidence of it and the knowledge of it. It would seem, besides, that, under the averments of the bill, Keepers is an indispensable party, he having become, according to the bill, a purchaser of the land and paid the purchase price thereof. To make him a party would outs this court of jurisdiction, if he is a citizen of New Mexico, and the presumption expressed by defendants that he is complainant does not deny. California v. Southern P. Co. 157 U. S. 229, 39 L. ed. 683, 15 Sup. Ct. Rep. 591. Dismissed.

246.US.439

A stipulation in the Uniform Live Stock Contract, filed by the carrier with the Interstate Commerce Commission, limiting the carrier's liability for unusual delay and detention caused by its own negligence to the amount actually expended by the shipper in the purchase of food and water for the stock while so detained, is illegal, and is not binding on a shipper who executed the contract and shipped under it for the corresponding reduced tariff rate. Such a stipulation contravenes the principle that the carrier may not exonerate itself from losses caused by its own negligence, and is not within the principle of limiting liability to an agreed valuation which has been made the basis of a reduced rate. Illegal conditions and limitations in a carrier's bill of lading do not gain validity from the filing of a form containing them with the Interstate Commerce Commission. 90 Vermont, 176, affirmed. THE case is stated in the opinion.

This suit was brought by Piper against the Boston & Maine Railroad to recover damages for loss occasioned by delay in delivering cattle as a result of the company's negligence. The plaintiff recovered damages and the judgment was affirmed by the Supreme Court of Vermont. 90 Vt. 176, 97 Atl. 508. The plaintiff shipped the cattle upon paying the reduced rate for shipment thereof under the Uniform Live Stock Agreement containing, among other things, the following: 'The same has been received by said carrier for itself and on behalf of connecting carriers for transportation subject to official tariffs, classifications and rules of the said company and upon the following terms and conditions which are admitted and accepted by the said shipper as just and reasonable. * * * That in the event of any unusual delay or detention of said live stock caused by the negligence of said carrier or its employes or its connecting carriers or their employes or otherwise the said shipper agrees to accept as full compensation for all loss or damage sustained thereby the amount actually expended by said shipper in the purchase of food and water for said stock while so detained. * * * And E. G. Piper does hereby acknowledge that he had the option of shipping the above-described live stock at a higher rate of freight according to the official tariffs, classifications and rules of the said carrier and connecting carriers and thereby receiving the security of the liability of the said carrier and connecting railroad and transportation companies as common carriers of the said live stock upon their respective roads and lines, but has voluntarily decided to ship same under this contract at the reduced rate of freight above first mentioned.' The tariffs in effect at the time the shipment moved provided for a rate of $42 when the Uniform Live Stock Agreement was signed and that: 'Live stock will be taken at the reduced rates fixed in the tariff only when a uniform live stock contract is executed by the station agent and the consignor, and when the release on the back of said contract is executed by man or men who are to accompany said live stock. If consignor refuses to execute a uniform live stock contract, the live stock will be charged ten (10) per cent. higher than the reduced rates specified herein provided, that in no case shall such higher charge be less than one (1) per cent. per one hundred pounds.' The company's tariffs were duly filed with the Interstate Commerce Commission and contained a copy of the Uniform Live Stock Contract as above set forth. Interstate shipments of the character here in contr versy made upon bills of lading, and under tariffs filed with the Interstate Commerce Commission, have been the subject of frequent consideration in this court. The binding character of the stipulations of the bill of lading and of the rates as fixed in the filed tariffs, have been recognized and enforced. St. Louis, Iron Mountain & Southern Ry. Co. v. Starbird, Adm'r, 243 U. S. 592, 37 Sup. Ct. 462, 61 L. Ed. 917, and previous cases in this court therein cited. The Carmack Amendment (Comp. St. 1916, §§ 8604a, 8604aa) requires the initial carrier to issue a bill of lading, and carriers are obliged to carry the articles shipped at the rates fixed in the published tariffs. Many decisions of this court have held that the carrier may offer to the shipper and the shipper may be bound by a contract which limits recovery to a valuation declared by the shipper in consideration of the reduced rate for the carriage of the freight. This rule was stated in an early case arising after the passage of the Carmack Amendment. Adams Express Co. v. Croninger, 226 U. S. 491, 509, 510, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, and has been frequently reiterated since. In the cases in which the recovery for the lesser valuation has been affirmed, the shipper was offered an opportunity to recover a greater sum than the declared value upon paying a higher rate to the carrier. The shipper was offered alternative recoveries based upon different valuations upon the payment of different rates, and was held bound by the one chosen. Such contracts of shipment this court has held not to be in contravention of the settled principles of the common law preventing a carrier from contracting against liability for losses resulting from its own negligence, and are lawful limitations upon the amount of recovery binding upon the shipper upon principles of estoppel. Hart v. Pennsylvania R. Co., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717, followed and approved since the passage of the Carmack Amendment in Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, supra, and see Wells Fargo & Co. v. Neiman-Marcus Co., 227 U. S. 469, 33 Sup. Ct. 267, 57 L. Ed. 600; Kansas Southern R. Co. v. Carl, 227 U. S. 657, 33 Sup. Ct. 391, 57 L. Ed. 683; Chicago, R. I. & Pacific R. Co. v. Cramer, 232 U. S. 490, 34 Sup. Ct. 383, 58 L. Ed. 697; Boston & Maine R. Co. v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526, 58 L. Ed. 868, L. R. A. 1915B, 450, Ann. Cas. 1915D, 593; Atchison, Topeka & Santa Fe R. Co. v. Robinson, 233 U. S. 173, 34 Sup. Ct. 556, 58 L. Ed. 901. Furthermore it has been held that a low valuation will not prevent the application of the rule making the agreement binding upon the shipper. Pierce Co. v. Wells Fargo & Co., 236 U. S. 278, 285, 35 Sup. Ct. 351, 59 L. Ed. 576. While the rule of the lesser recovery based upon lesser rates, when the shipper has been given the option of higher recovery upon paying a higher rate has been held binding upon the shipper so long as the published tariff remains in force, this court has not held a bill of lading containing a limitation against liability for loss caused by the carrier's negligence, such as is here involved, to be conclusive of the shipper's right to recover. In the previous decisions of this court upon the subject it has been said that the limited valuation for which a recovery may be had does not permit the carrier to defeat recovery because of losses arising from its own negligence but serves to fix the amount of recovery upon an agreed valuation made in consideration of the lower rate stipulated to be paid for the service. In the bill of lading, now under consideration, there is an express agreement limiting liability from unusual delay and detention, caused by the carrier's negligence, to the amount actually expended by the shipper in the purchase of food and water for his stock while so detained. This stipulation contravenes the principle that the carrier may not exon rate itself from losses negligently caused by it, and is not within the principle of limiting liability to an agreed valuation which has been made the basis of a reduced freight rate. Such stipulations as are here involved are not legal limitations upon the amount of recovery, but are in effect attempts to limit the carrier's liability for negligence by a contract which leaves practically no recovery for damages resulting from such negligence. While this provision was in the bill of lading, the form of which was filed with the railroad company's tariffs with the Interstate Commerce Commission, it gains nothing from that fact. The legal conditions and limitations in the carrier's bill of lading duly filed with the Commission are binding until changed by that body (Kansas Southern Ry. v. Carl, 227 U. S. 639, 654, 33 Sup. Ct. 391, 57 L. Ed. 683); but not so of conditions and limitations which are, as is this one, illegal, and consequently void. We find no error in the judgment of the Supreme Court of Vermont, and the same is Affirmed.

243.US.444

Forwarders who under contract with importers of goods look after the transportation from origin abroad to destination in this country, charging the owners amounts agreed, upon in advance for the transportation and the services rendered and consigning the goods in their own names to themselves as consignees, are the shippers of the goods so far as concerns their relations with the interstate carrier over whose line the consignments go. Any allowance by the interstate carrier to the forwarder in reduction of the regular tariff rates on goods shipped by the forwarder over the carrier's line, whether it be by deducting a percentage of the freight or by commissions and salary from carrier to forwarder, is condemned by § 6 of the Act to Regulate Commerce, as amended by the Act of June 29, 1906, c. 3591, § 2, 34 Stat. 586, 587, and also, semble, by § 2 of the oiginal act, c. 104, 24 Stat. 379. Services rendered by the forwarder to the carrier in maintaining offices, advertising the railroad and soliciting traffic over it are not services connected with the transportation for which an allowance may be made by the carrier under § 15 of the Act to Regulate Commerce, as amended by the Act of June 29, 1906, supra, § 4, 34 Stat. 589. Interstate Commerce Commission v. Peavey & Co., 222 U. S. 42, distinguished. 222 Fed. Rep. 685, affirmed.

This is a proceeding instituted by direction of the Attorney Genreal at the request of the Interstate Commerce Commission to prevent the appellant railroad from carrying freight at less than its published rates on file. The case was heard upon bill and answer and a stipulation, and the question is whether the facts warrant an injunction, as matter of law. George W. Sheldon & Company is an Illinois corporation engaged in forwarding, or bringing goods for importers from the place of purchase in Europe to their destination in the United States, and charging the importers for the transportation and such other services as it may perform. Of course the expectation is that it will make a profit from the transaction, although from the uncertainty of ocean freight charges it may lose, as the contract is made in advance. By arrangement with the appellant, so far as it is able it sends the goods over the appellant's line, and for doing so receives from it a varying percentage upon the published rates and also a salary of $5,000 a year. These payments by the appellant are the ground of the bill. The district court issued an injunction as prayed. 222 Fed. 685. As toward the railroad, George W. Sheldon & Company is consignor and consignee; and although it may be in no case the owner, that does not concern the appellant. Upon the admitted facts there can be no doubt, and it is not denied that it is to all legal intents the shipper of the goods. Interstate Commerce Commission v. Delaware, L. & W. R. Co. 220 U. S. 235, 55 L. ed. 448, 31 Sup. Ct. Rep. 392; Great Northern R. Co. v. O'Connor, 232 U. S. 509, 58 L. ed. 704, 34 Sup. Ct. Rep. 380, 8 N. C. C. A. 53. If the shipper were the owner, an allowance to him of a percentage upon the freight as an inducement to ship by that line, however honest and however justifiable on commercial principles, would be contrary to the Act to Regulate Commerce as it now stands. Act of June 29, 1906, chap. 3591, § 2, 34 Stat. at L. 586, 587, Comp. Stat. 1913, § 8569, amending § 6 of the original act, etc. See also the original Act of February 4, 1887, chap. 104, § 2, 24 Stat. at L. 379, Comp. Stat. 1913, § 8564; Wight v. United States, 167 U. S. 512, 42 L. ed. 258, 17 Sup. Ct. Rep. 822. But the above cases show that the carrier cannot inquire whether the shipper is the owner, and therefore the statute expresses a necessary policy when it forbids in universal terms refunding in any manner any portion of the rates specified in the published tariffs, or extending to 'any shipper' any privilege not so specified. Of course it does not matter whether the allowance takes the form of a deduction or a cross payment. Any payment made by a carrier to a shipper in consideration of his shipping goods over the carrier's line comes within the prohibiting words. It is true, no doubt, that George W. Sheldon & Company in the performance of the services for which it is paid, maintains offices here and abroad, advertises the railroad, solicits traffic for it, does various other useful things, and, in short, we assume, benefits the road and earns its money, if it were allowable to earn money in that way. It is true also that in Interstate Commerce Commission v. F. H. Peavey & Co. 222 U. S. 42, 56 L. ed. 83, 32 Sup. Ct. Rep. 22, an owner of property transported was held entitled, under § 15 of the Act to Regulate Commerce, to an allowance for furnishing a part of the transportation that the carrier was bound to furnish. So Union P. R. Co. v. Updike Grain Co. 222 U. S. 215, 56 L. ed. 171, 32 Sup. Ct. Rep. 39, and United States v. Baltimore & O. R. Co. 231 U. S. 274, 58 L. ed. 218, 34 Sup. Ct. Rep. 75. But that case goes to the verge of what is permitted by the act. The services rendered by George W. Sheldon & Company, although in a practical sense 'connected with such transportation,' were not connected with it as a necessary part of the carriage,—were not 'transportation service,' in the language of Union P. R. Co. v. Updike Grain Co. 222 U. S. 215, 220, 56 L. ed. 171, 173, 32 Sup. Ct. Rep. 39,—and, in our opinion, were not such services as were contemplated in the Act of June 29, 1906, chap. 3591, § 4, 34 Stat. at L. 589, Comp. Stat. 1913, § 8583, amending § 15 of the original act. On the other hand, the allowance for them falls within the plain meaning of § 2 of the Act of 1906, to which we referred above. There is some criticism of the form of the decree, but it prohibits with sufficient plainness all payments to George W. Sheldon & Company, whether by way of salary, commission, or otherwise, in consideration of the shipment of goods by George W. Sheldon & Company over the appellant's line. Decree affirmed.

245.US.162

A Pennsylvania corporation was sued in New York, where it transacted but a part of its business, upon a cause of action for personal injuries arising in Pennsylvania, and the summons was served upon a New York agent which it had designated to receive service of process, conformably to the New York laws. It moved to set aside the service as void in that consent to be sued in New York could be implied only in respect of causes arising out of its business there, and that the attempt to compel it to respond to the action was an invasion of its rights under the Constitution, particularly § 1 of the Fourteenth Amendment. Held that, as the motion did not draw in question the validity of the state law but only the validity of the service and the power of the court, consistently with § 1 of the Amendment, to proceed upon such service, no basis was laid for reviewing in this court by writ of error a subsequent judgment on the merits but only for application for certiorari. Jud. Code, § 237, as amended by Act of Sept. 6, 1916. Writ of error to review 176 App. Div. 889, dismissed.

This was an action in a state court in New York by a resident of that state against a Pennsylvania corporation to recover for a personal injury sustained by the former while employed in the latter's coal mine in Pennsylvania. In addition to mining coal in Pennsylvania, the defendant was doing business in New York and, conformably to the laws of the latter state, had designated an agent therein upon whom process against it might be served. The summons was served upon this agent. After an unsuccessful effort to have the service set aside as invalid, the defendant answered and the further proceedings resulted in a judgment for the plaintiff, which was affirmed, without opinion, by the Appellate Division of the Supreme Court. An appeal to the Court of Appeals was denied, and the defendant sued out this writ of error. A motion to dismiss the writ is made upon the ground that the judgment, if open to review here, cannot be reviewed upon a writ of error, but only upon a writ of certiorari. Under section 237 of the Judicial Code, as amended September 6, 1916 (39 Stat. 726, c. 448), a final judgment or decree of a state court of last resort in a suit '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 reviewed in this court upon writ of error; but, if the suit be one '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 in favor of 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 against their validity, or 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 title, right, privilege, or immunity especially set up or claimed, by either party, under such Constitution, treaty, statute, commission, or authority,' the judgment or decree can be reviewed in this court only upon a writ of certiorari. The difference between the two modes of securing a review, as contemplated by the statute, lies in the fact that a writ of error is granted as of right, while a writ of certiorari is granted or refused in the exercise of a sound discretion. By a timely motion the defendant sought to have the service of the summons set aside upon the ground—— 'that said service is void, in that the defendant's consent to be sued in the state of New York by service upon its aforesaid designated agent, can only be implied with respect to causes of action arising in connection with business the defendant transacts in the state of New York; the plaintiff's cause of action herein did not arise in connection with the business defendant transacts in the state of New York, but is brought to recover damages for personal injuries alleged to have been sustained in the state of Pennsylvania. An attempt to compel the defendant to respond to this suit in the Supreme Court of the state of New York, sitting in Westchester county, is an invasion of the defendant's rights under the Constitution of the United States, particularly section 1 of the Fourteenth Amendment of the said Constitution.' The motion was overruled and the defendant, having first excepted to the ruling, answered to the merits. All that was drawn in question by the motion was the validity of the service and the power of the court, consistently with the first section of the Fourteenth Amendment—probably meaning the due process of law clause, to proceed upon that service to a hearing and determination of the case. It did not question the validity of any treaty or statute of, or authority exercised under, the United States. Neither did it challenge the validity of a statute of, or an authority exercised under, any state, on the ground of its being repugnant to the Constitution, treaties, or laws of the United States. Challenging the power of the court to proceed to a decision of the merits did not draw in question an anthority exercised under the state, for, as this court has said, the power to hear and determine cases is not the kind of authority to which the statute refers. Bethell v. Demaret, 10 Wall. 537, 540, 19 L. Ed. 1007; French v. Taylor, 199 U. S. 274, 277, 26 Sup. Ct. 76, 50 L. Ed. 189. It follows that the judgment cannot be reviewed upon writ of error. If a review was desired it should have been sought under that clause of the certiorari provision which reads, 'or where any title, right, privilege, or immunity is claimed under the Constitution,' etc. Writ of error dismissed.

246.US.500

A foreign corporation, for lump sums, made and performed contracts to furnish completed automatic railway signal systems in Virginia, in the performance of which the materials, supplies, machinery, devices and equipment were brought from without, but their installation, as structures permanently attached to the soil, required employment of local labor, digging of ditches, construction of concrete foundations, and painting. Held, that local business was involved, separate and distinct from interstate commerce, and subject to the licensing power of the State. Browning v. Waycross, 233 U. S. 16. The Virginia law imposing a fee for the privilege of doing local business of $1,000 on foreign corporations with capital over $1,000,000 and not exceeding $10,000,000 (Acts 1910, c. 53, § 38a), upheld, as not arbitrary or unreasonable under all the circumstances, though the case is on the border line. 118 Virginia, 301, affirmed. THm case is stated in the opinion.

Plaintiff in error seeks reversal of a judgment of the Supreme Court of Appeals of Virginia (118 Va. 301, 87 S. E. 598) which affirmed an order of the Corporation Commission imposing a fine upon it for doing business within the state without first obtaining proper authority. The essential facts concerning business done as found by the Commission and approved by Supreme Court are these: 'The defendant is a corporation of the state of New York, having an authorized capital of $5,000,000. Its principal office and factory is at Rochester, N. Y., where it owns and operates a large manufacturing plant devoted to the manufacture of materials chiefly used in the construction of railway signals which it sells and constructs all over the world. It has a branch factory at Montreal, Canada, and maintains branch offices in New York City, Chicago, and San Francisco. 'By contract dated the 5th day of May, 1914, with the Southern Railway Company, the defendant agreed to furnish certain materials, supplies, machinery, devices and equipment, as well as all necessary labor, and to install, erect, and put in place certain signals and apparatus shown on the plans described in the specifications, from Amherst to Whittles, Virginia, fifty-eight miles, and to 'complete the entire system and turn same over to the railway company as a finished job,' subject to inspection and acceptance, for $85,597. Similar contracts had been previously made and fully performed, one dated September 6, 1911, covering the lines of the Southern Railway in Virginia from Monroe to Montview, Virginia, 13 miles, for $16,015, and one dated July 18, 1913, from Orange to Seminary, Virginia, 76 miles, for $112,428. The aggregate distance in this state covered by these contracts being 147 miles, and the total consideration being $214,040. 'The purpose of these signals is to promote safety of railway operation and they operate automatically. 'In order to construct these signals as reuired by the contract it was necessary to employ in this state labor, skilled and unskilled, to dig ditches in which conduits for the wires are placed, to construct concrete foundations, and to paint the completed structures. The completed structures are along the side of the railway track, about 2 miles apart, and are 22 or 23 feet high. In the language of the witness, Moffett: 'It is necessary to erect the signal mechanism, the masts supporting the mechanism, the houses for protecting the relays, reactors, reactants and other similar electrical devices protected from the weather, then the transformers, high tension line arresters and low tension line arrestors.' The completed structures are permanently attached to the freehold upon concrete bases.' We think the recited facts clearly show local business separate and distinct from interstate commerce within the doctrine announced and applied in Browning v. Waycross, 233 U. S. 16, 34 Sup. Ct. 578, 58 L. Ed. 828. It is further insisted that as the amount of prescribed entrance fee is based upon maximum capital stock it constitutes a burden on interstate commerce, contrary to the Federal Constitution. Section 38a, c. 53, Acts of Virginia 1910 (copied in margin),1 requires every foreign corporation with capital over one million and not exceeding ten million dollars when it obtains a certificate of authority to do local business to pay a fee of one thousand dollars. Inspection of the statute shows that prescribed fees do not vary in direct proportion to capital stock and that a maximum is fixed. In the class to which plaintiff in error belongs the amount specified is one thousand dollars and, under all the circumstances, we cannot say this is wholly arbitrary or unreasonable. Considering what we said in Baltic Mining Co. v. Massachusetts, 231 U. S. 68, 34 sup. Ct. 15, 58 L. Ed. 127; St. Louis S. W. Ry. v. Arkansas, 235 U. S. 350, 35 Sup. Ct. 99, 59 L. E.d 265; Kansas City Ry. v. kansas, 240 U. S. 227, 36 Sup. Ct. 261, 60 L. Ed. 617; Kansas City, etc., R. R. Co. v. Stiles, 242 U. S. 111, 37 Sup. Ct. 58, 61 L. Ed. 176—the two characteristices of the statute just referred to must be regarded as sufficient to save its validity. It seems proper, however, to add that the case is on the border line. See Looney v. Crane Co., 245 U. S. 178, 38 Sup. Ct. 85, 62 L. Ed. ——, International Paper Co. v. Commonwealth of Massachusetts, 246 U. S. 135, 38 Sup. Ct. 292, 62 L. Ed. ——, and Locomobile Co. v. Massachusetts, 246 U. S. 146, 38 Sup. Ct. 298, 62 L. Ed. ——, decided March 4, 1918. Affirmed.

244.US.332

In a limited liability contract governing an interstate shipment of live stock, it was stipulated, in accordance with provisions duly published and filed with the Interstate Commerce Commission, that the connecting carrier's liability for damage should be conditional upon the filing with its agent of a written notice of the shipper's claim within five days from the removal of the stock from the cars. Held, reasonable. and, valid., The right of parties to an interstate shipment to limit the carrier's liability for damage to the goods, in consideration of optional reduced rates and in accordance with schedules and a form of contract duly published and filed with the Commission, is well settled. Such provisions for notice of claim and limited liability bind the parties until changed by the Commission. Reversed.

Suit was brought in the common pleas court of Crawford county, Ohio, by Stone and Noble, present defendants in error, hereinafter designated as the plaintiffs, against the Lake Erie & Western Railroad Company and the present plaintiff in error, the Erie Railroad Company, to recover damages to certain horses shipped under bills of lading hereinafter referred to. Plaintiffs recovered a judgment in the court of original jurisdiction, and the same was affirmed by the court of appeals of Crawford county, to review which judgment a writ of error brings the case to this court. The horses were shipped under a contract designated 'Limited-Liability Live-Stock Contract,' which was executed in duplicate on the part of the Lake Erie & Western Railroad company and the shippers. That contract contained the following stipulation: 'That no claim for damages which may accrue to the said shipper under this contract shall be allowed or paid by the said carrier, or sued for in any court by the said shipper, unless a claim for such loss or damage shall be made in writing, verified by the affidavit of the said shipper or his agent, and delivered to the Erie Ry. agent of said carrier at his office in East Buffalo, N. Y., within five days from the time said stock is removed from said car or cars, and that if any loss or damage occurs upon the line of a connecting carrier, then such sarrier shall not be liable unless a claim shall be made in like manner and delivered in like time to some proper officer or agent of the carrier on whose lines the loss or injury occurs.' At a trial some four years before the one in which a verdict and judgment were rendered against the Erie Railroad Company, a verdict and judgment were rendered in favor of the Lake Erie & Western Railroad Company, and that company is out of the case. The suit was tried as to the Erie Railroad Company at the February term, 1914, of the common pleas court of Crawford county, and the court charged the jury, among other things, that it was conceded that no written claim was filed within five days after the shipments respectively arrived at their destinations, and submitted to the jury the question whether this limitation was reasonable. The jury gave a verdict in favor of the plaintiffs for a sum which included the interstate shipments here involved and the intrastate shipment for which a separate cause of action was stated in the amended petition. It is this judgment upon the lump sum which was affirmed by the court of appeals of Crawford county. For a defense the Erie Railroad Company set up, among other things, that the horses were shipped under the terms of the written live-stock contract above referred to; that this contract contained the requirement of notice already stated and gave a choice of two published tariff rates, the lower one based upon the agreed valuation of not exceeding $100 for each horse. The recovery in the case was for the full value of the horses, and not for the limited-liability valuation. The answer further set up that each of the interstate shipments in question came into the hands of the Erie Railroad Company for transportation from Ohio to East Buffalo, New York; that its official tariffs, classifications, and rules applicable to such interstate shipments, and in print and in force at and during the term of shipments, were duly filed with the Interstate Commerce Commission, pursuant to the acts of Congress. At the trial the Erie Railroad Company put in evidence its tariff rates, showing the alternative rate based upon the lower valuation, and the contract containing the stipulation as to notice already set forth. The Federal question here presented is whether the court was right in leaving to the jury the question of the reasonableness of the requirement that notice should be given within five days, and permitting the jury, if it found that this limit was unreasonable, to give a verdict in excess of the limited liability contracted for. This case requires little discussion, as the principles governing it have been settled by frequent decisions of this court. We need not stop to consider whether the requirement of the live-stock contract that a claim for damages should be presented within five days from the time the stock was removed from the cars was reasonable or not, for this question has been answered in favor of the reasonableness of such stipulation in the recent case of Northern P. R. Co. v. Wall, 241 U. S. 87, 60 L. ed. 905, 36 Sup. Ct. Rep. 493. See also St. Louis, I. M. & S. R. Co. v. Starbird, decided by this court on April 30, 1917 [243 U. S. 592, 61 L. ed. 917, 37 Sup. Ct. Rep. 462]. In the case under consideration it appears that the reduced rates under which these horses were shipped and the limited liability arising from shipping under such reduced rates were fixed by the tariff schedules and the form of limited-liability contract duly published and filed with the Interstate Commerce Commission, as required by law. These rates and that contract, which contained the notice requirement, thus became binding upon the parties until changed by order of the Commission. This is too well settled to need discussion. The rules and regulations, duly published and filed, which in any wise affect the rates or the value of the service to be rendered, are controlling upon both parties to the shipping contract. Act of June 29, 1906, 34 Stat. at L. § 2, p. 586, chap. 3591, Comp. Stat. 1916, § 8569. The binding force of these contracts and regulations has been affirmed in many cases; among them: 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, 112, 58 L. ed. 868, 876, L.R.A.1915B, 450, 34 Sup. Ct. Rep. 526, Ann. Cas. 1915D, 593; Louisville & N. R. Co. v. Maxwell, 237 U. S. 94, 98, 59 L. ed. 853, 855, L.R.A.1915E, 665, P.U.R.1915C, 300, 35 Sup. Ct. Rep. 494; Great Northern R. Co. v. O'Connor, 232 U. S. 508, 515, 58 L. ed. 703, 706, 34 Sup. Ct. Rep. 380, 8 N. C. C. A. 53; George N. Pierce Co. v. Wells F. & Co. 236 U. S. 278, 285, 59 L. ed. 576, 582, 35 Sup. Ct. Rep. 351; Southern R. Co. v. Prescott, 240 U. S. 632, 638, 60 L. ed. 836, 839, 36 Sup. Ct. Rep. 469; 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; Norfolk Southern R. Co. v. Chatman [244 U. S. 276, 61 L. ed.——,37 Sup. Ct. Rep. 499], decided by this court on May 21, 1917. It follows that the judgment of the Court of Appeals of Crawford County must be reversed and the cause remanded to that court for further proceedings not inconsistent with this opinion. Reversed.

245.US.33

Decided on the authority of Smith v. Interstate Commerce Commission, ante, 33. Affirmed.

The fundamental contention of appellant is that the Interstate Commerce Commission has no power to ask the questions in controversy and in emphasis of this he asserts 'the inquiry was confined exclusively to supposed political activities and efforts to suppress competition.' And these, it is further asserted, 'are not matters which the Commission 'is legally entitled to investigate." The contention is attempted to be supported by the insistence that the investigation was provoked and prosecuted solely in obedience to the Senate resolution and neither in exercise of the judgment of the Commission nor in pursuance of a complaint made to it. And the twelfth paragraph of the resolution is dwelt upon as directing and controlling the inquiry as to what amount, if any, the railroads 'have subscribed, expended or contributed for the purpose of preventing other railroads from entering any of the territory served by any of these railroads, for maintaining political or legislative agents, for contributing to political campaigns, for creating sentiment in favor of any of the plans of any of said railroads.' If, however, we advert to the questions we observe that the matters dwelt on by appellant are incidents only, having the purpose, it may be, in one sense to ascertain the 'amount, if any,' subscribed or expended, but not having the purpose in the sense of the questions, which is: whether the amount subscribed or expended was charged to operating or legal expenses. The latter purpose is more special than the other, and, we may say in passing, does not necessarily involve even a criticism of the other, involves only the display in the accounts of the carriers of the amount expended and its allocation. To this limitation the investigation is reduced, and the question is, being so reduced, Is it within the powers of the Commission? The Interstate Commerce Act confers upon the Commission powers of investigation in very broad language and this court has refused by construction to limit it so far as the business of the carriers is concerned and their relation to the public.1 And it would seem to be a necessary deduction from the cases that the investigating and supervising powers of the Commission extend to all of the activities of carriers and to all sums expended by them which could affect in any way their benefit or burden as agents of the public. If it be grasped thoroughly and kept in attention that they are public agents, we have at least the principle which should determine judgment in particular instances of regulation or investigation; and it is not far from true—it may be it is entirely true, as said by the Commission—that 'there can be nothing private or confidential in the activities and expenditures of a carrier engaged in interstate commerce.' Turning to the specialties of the Interstate Commerce Act we find there that all charges and treatment of all passengers and property shall be just and reasonable, and there is a specific prohibition of preferences and discriminations in all the ways that they can be executed, with corresponding regulatory power in the Commission. And authority and means are given to enable it to perform its duty. By section 12 it is authorized to inquire into the management of the business of carriers and keep itself informed as to the manner and method in which the same is conducted, and has the right to obtain from the carriers full and complete information. It may (section 13) institute an inquiry of its own motion, and may (section 20) require detailed accounts of all the expenditures and revenues of carriers and a complete exhibit of their financial operations and prescribe the forms of accounts, records and memoranda to be kept. And it is required to report to Congress all data collected by it. It would seem to be an idle work to point out the complete comprehensiveness of the language of these sections and we are not disposed to spend any time to argue that it necessarily includes the power to inquire into expenditures and their proper assignment in the accounts, and the questions under review, we have seen, go no further. They are incidental to an investigation as to the 'manner and method' (section 12) in which the business of the carriers is conducted; they are in requisition of a detailed account of their expenditures and revenues and an exhibit of their financial operations (section 20), and the answers to them may be valuable as information to Congress (section 21). A limitation, however, is deduced from section 13. It is said to be confined to cases where an inquiry is instituted 'as to any matter or thing concerning which a complaint is authorized to be made, or concerning which any question may arise under any provisions' of the act 'or relating to the enforcement of any of the provisions' of the act. In other words, that the inquiry is determined by the manner of procedure. The objection overlooks the practical and vigilant function of the Commission. To sustain it appellant seems to urge that there must be put into words by some complainant or by the Commission, if it move of itself, some definite charge of evil or abuse, and put into expression some definite remedy, and that an inquiry must not transcend either charge or remedy. To so transcend, appellant urges, would be an exercise of autocratic power and is condemned in Harriman v. Interstate Commerce Commission, 211 U. S. 407, 29 Sup. Ct. 115, 53 L. ed. 253. Appellant presses that case beyond its principle. And we may observe that section 13 has been amended and broadened since the decision of that case.2 The inquiry in the present case is more immediate to the function of the Commission than the inquiry in that and comes within Interstate Commerce Commission v. Chicago, R. I. & P. Ry., supra, where it was said, at page 103 of 218 U. S., at page 656 of 30 Sup. Ct. (54 L. ed. 946): 'The outlook of the Commission and its powers must be greater than the interest of the railroads or of that which may affect those interests. It must be as comprehensive as the interest of the whole country. If the problems which are presented to it therefore are complex and difficult, the means of solving them are as great and adequate as can be provided.' And they must necessarily be expressed in generalities. A precise specification of powers might work a limitation and all not enumerated be asserted to be withheld. We find it difficult to treat counsel's argument as seriously as they urge it. The expenditures of the carriers essentially concern their business. Section 20 declares it and gives the Commission power to require a detail of them, and necessarily not only of their amount but purpose and how charged. And the Commission must have power to prevent evasion of its orders and detect in any formal compliance or in the assignment of expenses a 'possible concealment of forbidden practices.' It may be said that our comments are not applicable to questions numbered 7 and 8, which relate to the expenditure of money in Alabama 'in a campaign against rate reduction.' That is, those questions are not directed to 'political activities' strictly so called, nor to the suppression of competition. They are directed, however, to the use of funds in a campaign against state legislative action. But this, appellant asserts, is at the farthest an attempt to 'influence legislation or to mold public opinion' and that there is nothing in the Interstate Commerce Act 'which forbids it or gives to the Commission any power to investigate the subject.' And it is besides urged, as it is urged against the other questions, that they do not relate to 'the subject under investigation,' which is strictly defined by the Senate resolution, to which, it is contended, the order of the Commission was responsive and subservient, and was to be and is confined to the efforts simply 'of the railroad companies in political matters and in attempts to suppress competition.' Indeed, the servility of the Commission to the Senate's resolution is the basic and insistent contention of appellant and taints, he further contends, all that the Commission did. The contention ascribes too much dominance to the resolution and puts out of view or unduly subordinates the invocation of the powers of the Commission by the complaint of Lea and the interval of two years between it and the resolution, and puts out of view besides the independent and inherent powers of the Commission to which we have adverted. Abstractly speaking, we are not disposed to say that a carrier may not attempt to mold or enlighten public opinion, but we are quite clear that its conduct and the expenditures of its funds are open to inquiry. If it may not rest inactive and suffer injustice, it may not on the other hand use its funds and its power in opposition to the policies of government. Beyond this generality it is not necessary to go. The questions in the case are not of broad extent. They are quite special, and we regard them, as the learned judge of the court below regarded them, as but incident to the amount of expenditures and to the manner of their charge upon the books of the companies. This, we repeat, is within the power of the Commission. The purpose of an investigation is the penetration of disguises or to form a definite estimate of any conduct of the carriers that may in any way affect their relation to the public. We cannot assume that an investigation will be instituted or conducted for any other purpose or in mere wanton meddling. Order affirmed.

245.US.166

Judgments or decrees of the Court of Appeals of the District of Columbia are not made final by Judicial Code, § 250, in cases involving the interpretation and effect of acts of Congress which are general in character, or the general duties or powers of officers under the law of the United States, as distinguished from merely local authority. By Judicial Code, § 251, the power of the Court of Appeals of the District of Columbia to certify questions to this court is confined to cases where the judgments or decrees of that court are made final by § 250. This limitation being plain in the letter and spirit of the statute would not be overridden by the fact (if there were such) that this court had overlooked it in former cases where it was not brought in question. Certificate dismissed.

Without competitive examination or certification under the Civil Service Law in 1903 William F. Arant, the relator and appellant, was appointed by the Secretary of the Interior superintendent of a national park in Oregon. Following his refusal in 1913 to resign, when requested by the Secretary, he was summarily removed without specification of charges or hearing, and upon his refusal to vacate was ousted by the United States marshal. Nearly two years afterwards this proceeding for mandamus to restore the relator to office was commenced. The return, referring to the act of Congress governing the civil service (Act of August 24, 1912, c. 389, 37 Stat. 555), especially challenged the assertion that the relator was within the provisions of that law inhibiting removal without charges and hearing and asserted that the right to appoint and remove from the office in question was excepted out of such provisions. A demurrer to the return as stating no defense was overruled and from the judgment dismissing the proceeding the case was taken to the Court of Appeals of the District, which, desiring to be instructed as to its duty, after certifying the case as above stated, propounded two questions for our consideration: 'First, whether the relator was subject to the summarily removed without charges or hearing thereon; and, second, if not, whether in consequence of the long delay he was barred by laches from the right to relief. As the power of the court below to submit the questions for our solution is challenged, that subject requires first to be considered. The power must find its sanction in the following provision of section 251 of the Judicial Code (Comp. St. 1916, § 1228): 'It shall also be competent for said Court of Appeals, in any case in which its judgment or decree is made final under the section last preceding, at any time to certify to the Supreme Court of the United States any questions or propositions of law concerning which it desires the instruction of that court for their proper decision,' —this being followed by a clause conferring authority on this court in such case either to answer the questions or to order up for review the whole case and dispose of it. It is not open to controversy that the judgments or decrees of the court below are not made final by section 250 in cases involving the interpretation and effect of an act of Congress general in character or the general duty or power of an officer under the law of the United States as contradistinguished from merely local authority. American Security & Trust Co. v. District of Columbia, 224 U. S. 491, 32 Sup. Ct. 553, 56 L. Ed. 856; McGowan v. Parish, 228 U. S. 312, 33 Sup. Ct. 521, 57 L. Ed. 849; United Surety Co. v. American Fruit Co., 238 U. S. 140, 35 Sup. Ct. 828, 59 L. Ed. 1238; Newman v. Frizzell, 238 U. S. 537, 35 Sup. Ct. 881, 59 L. Ed. 1446. This being true, it is apparent that, as this case is of the character just stated, it was not one coming within the authority conferred to certify, which is confined to cases where the judgments or decrees of the court are made final under section 250. The unambiguous command of the text excludes the necessity for interpretation. But if it be conceded for the sake of argument that there is necessity for interpretation, the briefest consideration will reveal the coincidence between the animating spirit of the provision and the obvious result of its plain text. It is undoubted that the authority to certify conferred upon the Court of Appeals of the District by section 251 did not previously exist in that court in any case. The Circuit Courts of Appeals, however, had undoubtedly under the Act of 1891, a power to certify. Section 6, 26 Stat. 828, c. 517. But while by the terms of that act such authority apparently extended to 'every such subject within its appellate jurisdiction,' it came to be settled that by limitations found in the text such power to certify was restricted to cases in which the judgments or decrees of the Circuit Courts of Appeals were final, and therefore not susceptible of being of right otherwise reviewed in this court. Columbus Watch Co. v. Robbins, 148 U. S. 266, 268, 13 Sup. Ct. 594, 37 L. Ed. 445; Bardes v. Hawarden First National Bank, 175 U. S. 526, 527, 20 Sup. Ct. 196, 44 L. Ed. 261. Coming to provide concerning this situation the Judicial Code enlarged the power of a Circuit Court of Appeals by conferring authority to certify 'any case within its appellate jurisdiction' (section 239 [Comp. St. 1916, § 1216]), but in giving power to certify for the first time to the Court of Appeals of the District expressly limited it to cases 'in which its judgment or decree is made final' (section 251 [section 1228]). The expansion of authority conferred upon the Circuit Courts of Appeals at the same time that the restricted authority was conferred upon the Court of Appeals of the District makes manifest the legislative intent to give a greater power in the one case than in the other. It is true that in Bauer v. O'Donnell, 229 U. S. 1, 33 Sup. Ct. 616, 57 L. Ed. 1041, 50 L. R. A. (N. S.) 1185, Ann. Cas. 1915A, 150, and Equitable Surety Co. v. McMillan, 234 U. S. 448, 34 Sup. Ct. 803, 58 L. Ed. 1394, controversies were determined on certificates made and questions based thereon by the Court of Appeals of the District. But in both cases the judgment or decree of the court below if rendered would have been final within the purview of section 250 of the Judicial Code; the first, because it arose under the patent laws, and the second, because it concerned an act of Congress of local application. Even, however, upon the assumption that the cases are susceptible of a different view, as no question was raised in either concerning the power to certify and the limitation to which it was subjected by the statute, the mere fact that the cases were entertained affords no ground for holding them as authoritative on the question before us and thereby causing the statute to embrace a power which it excluded by both its letter and spirit. United States v. More, 3 Cranch, 159, 172, 2 L. Ed. 397; Louisville Trust Co. v. Knott, 191 U. S. 225, 236, 24 Sup. Ct. 119, 48 L. Ed. 159. As therefore there was no authority in the court below to certify and propound the questions, the certificate must be and it is Dismissed for want of jurisdiction.

243.US.281

A railroad company, under a written agreement reserving a small annual rental and terminable on 30 days' notice, allowed a packing company the use, for warehouse purposes, of land belonging to the railroad and adjacent to one of its sidings, including a switch connected with its main line. The agreement provided that the licensee should not interfere with the tracks of the railroad company, and that the switch track should be at all times under the railroad company's control; also, it reserved to the latter a right to enter at all times "for the purpose of repairing or maintaining the track thereon, or switching or removing cais thereover." The switch track was used by cars moving goods of the licensee in interstate commerce between the warehouse and the main line. Held, that under this arrangement the switch track was not to be regarded as a private track, but as a track of the railroad company. The court cannot be controlled by an agreement of counsel on a subsidiary question of law. The court cannot decide fictitious cases. A stipulation of counsel, made only for the purpose of reviewing a judgment rendered on demurrer to the petition, and declaring a proposition which, tested by the petition, is erroneous in fact and in law, will be treated by this court as a nullity. The fact that effect was given to such a stipulation by the state courts below does not conclude this court. Where the shipper lets his private cars to the carrier in consideration of mileage charged on both outgoing and return journeys, allowing the carrier to freight them on the return if the shipper does not, and the freight charged upon all goods hauled is the same as for goods hauled in cars owned by the carrier, the cars of the shipper are in the service of the carrier while standing loaded with goods consigned to the shipper on a switch track of the carrier at the shipper's warehouse. In such case, the "transportation," within the meaning of the Act to Regulate Commerce, has not ended, and demurrage for detention of the cars by their owner may reasonably be exacted by the carrier, in accordance with its rules and rates duly published and filed. 93 Ohio St. 143, affirmed.

The National Convention of Railway Commissioners, an association comprising the commissioners of the several states, adopted in November, 1909, a Uniform Demurrage Code. This action was based upon extensive investigations and thorough discussion, participated in by the railroad commissioners, commercial organizations, representatives of railroads, and individual shippers from all parts of the country. On December 18, 1909, the Interstate Commerce Commission indorsed the rules so adopted, and recommended 'that they be made effective on interstate transportation throughout the country.' Re Demurrage Investigation, 19 Inters. Com. Rep. 496. These rules provide that after two days' free time 'cars held for or by consignors or consignees for loading' or unloading shall (with certain exceptions not here material) pay a demurrage charge of $1 per car per day. Private cars are specifically included by the following note: NOTE.—Private cars while in railroad service, whether on carrier's or private tracks, are subject to these demurrage rules to the same extent as cars of railroad ownership. (Empty private cars are in railroad service from the time they are placed by the carrier for loading or tendered for loading on the orders of a shipper. Private cars under lading are in railroad service until the lading is removed and cars are regularly released. Cars which belong to an industry performing its own switching service are in railroad service from the time they are placed by the industry upon designated interchange tracks, and thereby tendered to the carrier for movement. If such cars are subsequently returned empty, they are out of service when withdrawn by the industry from the interchange; if returned under load, railroad service is not at an end until the lading is duly removed.) In 1910 the Hocking Valley Railway Company, an interstate carrier, inserted in its freight tariff duly filed and published as required by the Act to Regulate Commerce, the demurrage rules and charges, including that relating to private cars, quoted above. Thereafter, Swift & Company, Chicago meat packers, established on the line of that railroad at Athens, Ohio, a warehouse to which it made, from time to time, shipments in private cars. These cars, which were placed on the switch used in connection with the warehouse, were not unloaded within the forty-eight hours' free time allowed by the tariff; and demurrage charges were assessed by the Railway Company. Payment being refused, this action was brought in the court of common pleas of Cuyahoga county, Ohio, to recover the amount. The amended petition alleged, among other things, that the demurrage rules and charges had been 'approved by the Interstate Commerce Commission by a decision rendered by the Commission on the 14th day of November, 1910, in the case of Procter & G. Co. v. Cincinnati, H. & D. R. Co. which decision is reported in 19 Inters. Com. Rep. 556 to 560, inclusive thereof, and which decision, approving said car demurrage rules and charges, is hereby referred to and made a part hereof, as though the same were fully written out at length herein.' Swift & Company demurred; and defended on the single ground that the cars in question were its private cars, standing on its 'private track;' contended that the demurrage rule which required payment of charges under such circumstances was an arbitrary imposition; that it was unlawful and void; and that it was subject to collateral attack, even though included in a tariff duly filed and published under the Act to Regulate Commerce. Two lays after the case had been heard on demurrer in the court of common pleas, counsel filed a stipulation as follows: 'For the purpose only of reviewing the judgment of the common pleas court on defendant's demurrer to the amended petition, it is stipulated by the parties hereto that the track on which the cars in question were placed was the private track of Swift & Company.' The next day judgment was rendered for the Railway Company. It was affirmed both by the court of appeals of Cuyahoga county and by the supreme court of Ohio. 93 Ohio St. 143, L.R.A. ——, ——, 112 N. E. 212. The supreme court of Ohio assumed the track in question to be a 'private track,' as stipulated by the parties, and declared that 'demurrage rules relating to private cars employed in interstate commerce and the charges assessable thereunder are matters properly included in the tariff or schedule required to be filed and published. This tariff containing the demurrage rule having been filed and published according to law was binding alike on carrier and shipper, and so long as it was in force was to be treated as though it were a statute. . . . This rule having been approved by Federal tribunal acting within the scope of its authority, its decision must be followed by the courts of this state and be given full force and effect.' The case was then brought to this court on writ of error. The errors assigned were, in substance, that the demurrage rule was repugnant to the Act to Regulate Commerce, and that the decisions below deprived Swift & Company of its property without the due process of law guaranteed by the 14th Amendment. Prior to the bringing of this action the Interstate Commerce Commission had held in Procter & G. Co. v. Cincinnati, H. & D. R. Co. 19 Inters. Com. Rep. 556, that carriers were 'within their lawful rights in establishing and maintaining' the above rule for demurrage charges on private cars. The commerce court approved the finding. Procter & G. Co. v. United States, 188 Fed. 221, 227. An effort to secure a review of these decisions by this court failed. Procter & G. Co. v. United States, 225 U. S. 282, 56 L. ed. 1091, 32 Sup. Ct. Rep. 761. We do not find it necessary to decide whether the ruling of the supreme court of Ohio was correct; or whether the rule concerning demurrage charges on private cars is in all respects valid; or whether a shipper who has delivered private cars to a carrier, knowing such rule to be in force, is in a position to question its validity in an action for charges accruing thereunder. For the record discloses, contrary to the statement in the stipulation, that the track in question was not a 'private track.' The facts which determine the character of the switch and the relation to it of carrier and shipper were carefully set forth in the amended petition and the 'license' annexed, copied in the margin.1 Under it Swift & COMPANY occupied a part of the railway company's premises for its warehouse and office and enjoyed the rights in the switch from its main lines. The 'license' recites, among other things, the licensee's desire 'to occupy a track of ground belonging to the Railway Company . . . for the purpose of maintaining thereon a warehouse and office . . . in such a manner as not in any way to interfere with the . . . tracks . . . of the Railway Company . . .;' that the premises lie on 'the north side of the Railway Company's siding, known as the 'Bank Track' . . .;' that 'the switch of the Railway Company hereby let and connected with its main line shall at all times be under control of the Railway Company;' and that 'the Railway Company shall have the right at all times to enter upon the premises hereby let, for the purpose of repairing or maintaining the track thereon, or switching or removing cars thereover.' A rental of $30 per annum is provided for; but the license is terminable on thirty days' notice. These facts were admitted by the demurrer, upon them the case was heard by the court of common pleas, and upon them the case must be decided in this court, unaffected by stipulation of counsel made 'for the purpose only of reviewing the judgment of the common pleas court.' The construction and effect of a written instrument is a question of law. Dillon v. Barnard, 21 Wall. 430, 437, 22 L. ed. 673, 676. Clearly the track in question was not a private track of the shipper, but a track of the carrier,—like the spur passed upon in National Ref. Co. v. St. Louis, I. M. & S. R. Co. 150 C. C. A. 361, 237 Fed. 347, affirming 226 Fed. 357. If the stipulation is to be treated as an agreement concerning the legal effect of admitted facts, it is obviously inoperative; since the court cannot be controlled by agreement of counsel on a subsidiary question of law. See cases cited in the margin.2 If the stipulation is to be treated as an attempt to agree 'for the purpose only of reviewing the judgment' below, that what are the facts shall be assumed not to be facts, a moot or fictitious case is presented. 'The duty of this court, as of every judicial tribunal, is limited to determining rights of persons or of property, which are actually controverted in the particular case before it. . . . No stipulation of parties or counsel, whether in the case before the court or in any other case, can enlarge the power, or affect the duty, of the court in this regard.' California v. San Pablo & T. R. Co. 149 U. S. 308, 314, 37 L. ed. 747, 748, 13 Sup. Ct. Rep. 876. See Mills v. Green, 159 U. S. 651, 654, 40 L. ed. 293, 294, 16 Sup. Ct. Rep. 132. The fact that effect was given to the stipulation by the appellate courts of Ohio does not conclude this court. See Tyler v. Judges of Ct. of Registration, 179 U. S. 405, 410, 45 L. ed. 252, 254, 21 Sup. Ct. Rep. 206. We treat the stipulation, therefore, as a nullity. Consignors or consignees of freight shipped in private cars pay the same rates for transportation as if the commodities had been shipped in the cars owned by the carriers; but the owners or lessees of private cars are paid or allowed by the carriers (east of the Mississippi river) a sum equal to three fourths of a cent per mile for refrigerator or tank cars and three fifths to a cent per mile for other cars. The cars are returned by the railroads to the owners without extra charge. The mileage allowance is paid for the return trip as well as on the journey to destination with load. And if the private car owner does not furnish a load for the return journey, the carriers have the right to load the cars. Re Demurrage Charges on Tank Cars, 13 Inters. Com. Rep. 378, 379. Swift & Company's cars were, therefore, though privately owned, still in railroad service while under lading. The cars while on the switch were on track owned by the Railway Company. The 'transportation,' within the meaning of the Act to Regulate Commerce, had not ended. It cannot be said that a charge for detention of a private car and use of a railroad track under such circumstance is unreasonable. Even before the adoption of the Uniform Demurrage Code such a charge had been upheld by the Interstate Commerce Commission. Cudahy Packing Co. v. Chicago & N. W. R. Co. 12 Inters. Com. Rep. 446. Defendant's argument was based wholly upon the assumption that the switch was a 'private track;' and the propriety of such a charge for cars detained on a public track seems not to have been questioned. Affirmed. Mr. Justice McKenna, Mr. Justice Van Devanter, and Mr. Justice McReynolds dissent.

242.US.430

Petitions for writs of certiorari are at 'the risk of the parties making them, and whenever in the progress of the cause facts develop which if disclosed on the application would have induced a refusal, the court may upon motion by a party or ex mero motu dismiss the writ. Such petitions should be carefully prepared, contain appropriate references to the record, and present with studied accuracy, brevity and clearness whatever is essential to ready and adequate understanding of points requiring the court's attention. When the real situation is not set forth by the petition, a duty rests oi opposing counsel to reveal it in their reply. Writ of certiorari to review 215 Fed. Rep. 859, dismissed.

The writ of certiorari was improvidently granted and must be dismissed. We should have denied the petition therefor if the facts essential to an adequate appreciation of the situation had then been brought to our attention. Petitions of this character are at the risk of the party making them, and whenever, in the progress of the cause, facts develop which, if disclosed on the application, would have induced a refusal, the court may, upon motion by a party, or ex mero motu, dismiss the writ. United States v. Rimer, 220 U. S. 547, 55 L. ed. 578, 31 Sup. Ct. Rep. 596; State, Malone, Prosecutor, v. Water Comrs. 30 N. J. L. 247. In February, 1912, the Yang-Tsze Insurance Association, Limited, filed its libel in the district court at New York against Furness, Withy, & Company, Limited, owner of the Pomaron, to recover damages consequent upon the sinking of the Alleghany. A judgment for libellant, rendered June 13, 1913, was affirmed by the circuit court of appeals in June, 1914; and on October 5, 1914, the Pomaron's owner instituted a proceeding in the same district court for limitation of liability, and the steps customary in such causes were regularly taken. April 12, 1915, the petitioner presented an original application here for a writ of certiorari to bring up the judgment of the circuit court of appeals in the damage cause, and this was denied April 19th. It now appears that, on April 22, 1915, a final decree containing the following recitals was entered by the district court in the limitation proceedings: 'Whereas the petitioner and all the claimants herein have compromised and settled the issues between them, and in consideration of the said compromise and settlement it has been agreed between the petitioner and all the claimants:' (The terms follow.) 'Whereas, in consideration of the said compromise and settlement, the several claimants herein by agreement have fixed and adjusted the amounts of their several losses consequent on the said collision at the following sums, to wit:' (The amounts are specified.) 'Now on the subjoined admissions of correctness of the foregoing recitals and the subjoined consents and waivers of settlement in respect of the entry of this decree, made by the proctors for all claimants herein . . . it is ordered, adjudged, and decreed, etc.' The following, signed by all the proctors, is subjoined to the decree: 'The undersigned proctors, for all the parties herein, hereby admit the truth of the recitals contained in the foregoing decree and consent to the entry thereof, without further notice.' Petitioner's second application for certiorari, which was presented June 15, 1915, and granted, contains these statements: 'On May 10, 1915, as your petitioner is informed, this court granted a writ of certiorari to the circuit court of appeals for the ninth circuit upon the petition of Olaf Lie, master of the Norwegian steamship Selja, in a suit between said Olaf Lie, master, etc., and the San Francisco & Portland Steamship Company, etc.' 'Your petitioner now renewa its application for certiorari for the reason that the questions presented by its petition are identical with those presented by the petition of Olaf Lie. The principal question is whether, under this court's decision in The Pennsylvania, 19 Wall. 125, 22 L. ed. 148, a privileged vessel, which, before a collision with a burdened vessel, ported her helm in violation (prima facie, at least) of article 21 of the International Regulations, may be held responsible for the collision, . . .' 'Subsequent to the decision of the circuit court of appeals your petitioner instituted proceedings for limitation of liability, which, after the denial by this court of the original petition, were prosecuted to a decree under which payments were made to the respondents by the clerk of the district court. As these payments were made under compulsion, they would be recoverable by your petitioner in the event that this court should reverse the decision of the circuit court of appeals.' In their memorandum opposing the second petition for certiorari, counsel for the Insurance Association said: 'The case is settled and closed.' And after referring to steps taken in the limitation proceeding, and quoting from the decree therein, dated April 22, 1915, they added: 'All the claimants have been paid the respective proportions of the fund ascertained to be due them, and have executed receipts of discharge in the terms provided by the decree. The case is, therefore, finally closed and settled as between all the parties, and such settlements have been made without any reservation of rights on the part of the petitioner.' We were not advised by petition of June 15, 1915, or memorandum opposing it, that the final decree in the limitation proceedings was based upon an express compromise agreement; otherwise the writ would not have been allowed. At the hearing counsel expressed different views concerning the ultimate effect of that decree and the reasons for its form; and they made it quite plain that there was no purpose to mislead us. Nevertheless, in the circumstances, we think it was incumbent upon counsel for both sides to see that the petition and reply thereto disclosed the real situation. The oversight has resulted in unfortunate delay and needless consumption of time. During the last term one hundred fifty-four petitions for certiorari were presented and acted upon. Because of recent legislation—Act of September 6, 1916, chap. 448, 39 Stat. at L. 726—their number hereafter may greatly increase. Such petitions go first to every member of the court for examination, and are then separately considered in conference. This duty must be promptly discharged. We are not aided by oral arguments, and necessarily rely in an especial way upon petitions, replies, and supporting briefs. Unless these are carefully prepared, contain appropriate references to the record, and present with studied accuracy, brevity, and clearmess whatever is essential to ready and adequate understanding of points requiring our attention, the rights of interested parties may be prejudiced and the court will be impeded in its efforts properly to dispose of the causes which constantly crowd its docket. Dismissed.

245.US.146

Nos. 252, 253. Argued November 5, 6, 1917.-Decided November 19, 1917.

These are suits upon two certificates of qualified life insurance issued to Frank Barber and payable at his death to his wife, the plaintiff—defendant in error here. The defense in both suits was the same; that Barber failed to pay a mortuary assessment levied on January 29, 1910, known as quarterly call No. 126, and that the failure avoided the policies by their terms. It set up further that, in a suit brought by one Dresser on behalf of himself and all certificate holders, including the plaintiff, in the Connecticut Court having jurisdiction over the defendant and the mortuary fund from which alone, by the contract, death losses were payable, it was adjudicated on March 23, 1910, that if a certificate holder failed to pay a mortuary assessment the company could not pay the insurance in case of his death. At the trial the Connecticut judgment was offered and excluded and the jury were instructed that the defendant must prove that an assessment was made by the directors of the company and that it was not for a larger amount than was necessary to pay death losses up to that time after giving Barber credit for his pro rata share in the mortuary fund; that if there was money on hand in that fund, and unless the defendant had 'so proved,' it could not declare the insurance forfeited on that account. This instruction was in the teeth of the Connecticut adjudication which held that it was proper and reasonable for the company to hold a fund collected in advance in order to enable it to pay losses promptly. The plaintiff recovered judgments and these were sustained by the Supreme Court of Missouri. 269 Mo. 21, 187 S. W. 867. The defendant says that it was denied its constitutional rights by a failure to give due faith and credit to the judgment of the Connecticut Court. The transactions were of the class before this Court in Hartford Life Ins. Co. v. Ibs, 237 U. S. 662, 35 Sup. Ct. 692, 59 L. Ed. 1165, L. R. A. 1916A, 765, which arose on a similar contract and a failure to pay the call next after the one in question here. In that case the character of the business arrangements was explained and it was decided that the Dresser judgment binds all certificate holders of the class to which Barber belonged. The Missouri Court, indicating some dissatisfaction with the company and the judgments in Connecticut and here, sought to justify a different result by distinctions that seem to us unreal. The first is that at the end of the quarter for which the assessment was levied, that is on December 31, 1909, after deducting all losses in respect of which the assessment was laid, there was still left, of the fund out of which the losses were paid, over $50,000, which the assessment would increase to over $375,000; that $300,000 was all that was allowed by the contract 'as modified by the [Connecticut] judgment'; and that the assessment therefore was excessive and void. The other distinction attempted is that the charter requires all of the affairs of the company to be managed and controlled by a board of not less than seven directors, and that the assessment was not levied by the board. It is obvious on the evidence that this assessment was levied in the usual way adopted by the company and tacitly sanctioned by the Connecticut judgment. Quarterly mortality calls were provided for and were regularly made in this way for the appointed dates. A jury would have been justified, at least, in finding that the call was made by the directors within the meaning of the instructions although it did not appear that the directors went over the figures of the officers who made it up, and voted it specifically. It clearly was made under the directors' management and control. The verdicts for the plaintiff hardly could have been rendered except upon the other ground opened by the instructions, that the assessment was for a larger amount than was necessary to pay death losses up to that time. Upon that ground the verdicts were a matter of course, and we regard the reference to the directors' part in the assessment as a makeweight which adds nothing to the substantial basis for the decision below. See Terre Haute & Indianapolis R. R. Co. v. Indiana, 194 U. S. 579, 589, 24 Sup. Ct. 767, 48 L. Ed. 1124. The powers given by the Connecticut charter are entitled to the same credit elsewhere as the judgment of the Connecticut Court. Supreme Council of the Royal Arcanum v. Green, 237 U. S. 531, 542, 35 Sup. Ct. 724, 59 L. Ed. 1089, L. R. A. 1916A, 771. As we have said the instruction was in the teeth of the Connecticut judgment by which under the Ibs Case the plaintiff was bound. The verdicts were based upon fundamental error, and the only real question in the case is whether it appears as matter of law that under correct instructions the same result must have been reached. The Connecticut judgment was that any excess in the mortuary fund above the average of the four preceding quarterly assessments in the Men's Division of the Safety Fund Department (taken for the purposes of these cases to be $300,000), shall be distributed to certificate holders in diminution of assessments by crediting the excess on account of the next succeeding assessment. This contemplates a possible excess and does not limit the assessment to a sum equal to the difference between $300,000 and the fund on hand after deducting the deaths that had occurred at the time when the assessment was levied, as was assumed by the Missouri Court. Deaths were occurring between the time of the levy and the time when so much of it as might be paid would be paid in. The assessment was for the purpose of keeping up a fund of $300,000 to meet deaths promptly, as they occurred. Without giving the figures in detail it is enough to say that it clearly appears that the amount of the assessment, $322,378.48 was not in excess of what the subsequently rendered Connecticut judgment allowed. It necessarily was levied as an estimate. There was no probability that it would lead to even a temporary excess over $300,000, to be applied to the next assessment laid. We are of opinion that full faith and credit was not given to the Connecticut record and that for that reason the present judgments must be reversed. Judgments reversed.

242.US.344

The practice of fitting glasses to the human eye, and treating ocular inflammation, without the use of drugs' or surgery, is subject to supervision and regulation under the state police power. No discrimination violative of the equal protection clause of the Fourteenth Amendment is deducible from the fact that a state law (Laws of California, 1913, c. 598i requiring persons treating inflammation of the eye and fitting glasses without the use of drugs to be licensed under the name of "optometrists" and subjecting their practice to regulation excepts persons who employ drugs in their practice, it appearing that the latter, through another statute, are subject to similar supervision and regulation under another name. 233 Fed. Rep. 334, affirmed.

This case was submitted with Crane v. Johnson, just decided [242 U. S. 339, 61 L. ed. 348, 37 Sup. Ct. Rep. 176]. It was considered in the district court with that case, three judges sitting as in that case. It comes here on appeal from an order denying an interlocutory injunction. The court entertained jurisdiction upon the authority of Raich v. Truax, 219 Fed. 273, 283; Truax v. Raich, 239 U. S. 33, 60 L. ed. 131, L.R.A. 1916D, 545, 36 Sup. Ct. Rep. 7. The court, in denying the injunction, said 'that the granting of such orders is within the sound discretion of the court, and, in the exercise of such discretion, based upon the averments of the bills, we are of opinion that the application should be denied.' The court did not pass upon the merits, expressing a doubt of its authority to do so, as the court said it was composed of three judges, 'under statutory requirement.' Appellant—we shall call her complainant, and state narratively the facts she alleged—is a regularly graduated ophthalmologist, which is a school of scientific learning and practice confined to the treatment of the inflammation of the eye and its membranes and in fitting glasses to the human eye. She has practised her profession in the city of Los Angeles for the past three years and is dependent upon the proceeds of her labor and services. She does not employ either medicine, drugs, or surgery, nor is there anything in her practice hurtful to the individual or dangerous to society. In her practice it is absolutely necessary and indispensable that she measure the powers and range of human vision without the use of drugs, and there is no law in the state of California prescribing an examination for and regulating the practice of ophthalmology. At its 40th session the legislature of California enacted a statute by which it provided that it should be unlawful for any person to engage in the practice of optometry without first having obtained a certificate of registration from the State Board of Optometry under an act to regulate that practice, approved March 20, 1903, and the acts amendatory thereof. The practice of optometry is defined to be the employment of any means other than the use of drugs for the measurement of the powers or range of human vision, or the determination of the accommodative and refractive states of the human eye, or the scope of its functions in general, or the adaptation of lenses or frames for the aid thereof. The board is given the power, among others, to visit schools where the science of optometry is taught, and accredit such as the board finds give a sufficient course of study for the preparation of optometrists; to keep a register of all persons to whom certificates of registration have been issued and of all itinerant licenses, and to grant or refuse or revoke such certificates. The act prescribes a course of examination, describes the particulars of the examinations, and provides that every applicant for an examination, upon passing it, shall be entitled to be registered in the board's register of optometrists, and a certificate of registration shall be issued to him. 'At such examinations the board shall examine applicants in the anatomy of the eye, in normal and abnormal refractive and accommodative and muscular conditions and co-ordination of the eye, in subjective and objective optometry, including the fitting of glasses, the principles of lens grinding and frame adjusting, and in such other subjects as pertain to the science and practice of optometry, such subjects to be enumerated in publication by the board. In case of failure, the applicant shall be examined at the next examination only in the subjects in which he failed. All such applicants, without discrimination, who shall satisfactorily pass such examination shall thereupon be registered in the board's register of optometrists and a certificate of registration shall be issued to them, under the seal and signature of the members of said board upon payment of a fee of $5. Such certificate shall continue in force until the first day of August in the year next succeeding.' [Stat. 1913, chap. 598, p. 1100.] Before engaging in practice it shall be the duty of each registered optometrist to notify the board in writing of the place or places where he is to engage or intends to engage in practice, and of changes in such places. There are other provisions intended to fortify those above mentioned, and violations of the act are made misdemeanors, with fines and imprisonment, increasing with repetition of the offense. It is provided that the act shall not be construed to prevent duly licensed physicians and surgeons from treating the human eye, nor to prohibit the sale of complete ready-to-wear eyeglasses as merchandise from a permanent place of business, in good faith, and not in evasion of the act, by the person not holding himself out as competent to examine and prescribe for the human eye. Registry certificates may be revoked for certain specified causes. Complainant charges that the act offends the 14th Amendment of the Constitution of the United States in that it deprives her of her property without due process of law and denies her the equal protection of the laws; and as specifications of the last she instances the exemption from the provisions of the act of licensed physicians and surgeons; the appropriation to the sole use of registered optometrists of the right to employ any means other than the use of drugs in the measurement of the powers or range of vision; the denial to all other schools of scientific learning and practice the right to measure the range of human vision other than by the use of drugs on equal terms with the physician and surgeon; and contends generally that her occupation being a lawful one, not hurtful to the individual or dangerous to the community, the state has no power to impose discriminatory regulations upon it. She alleges her competency to practise her profession and apply its treatment, that appellees are threatening to enforce the law, and hence prays temporary and permanent injunctions. These specific objections are brought down to the general objection that the statute discriminates against those who employ any other means than the use of drugs, and therefore 'creates a monopoly favored and protected by law in the interest of practitioners who employ drugs in determining the accommodative and refractive states of the human eye.' To sustain the statute appellees adduce the police power of the state; against the statute complainant urges the 14th Amendment and its prohibition of discrimination. The case requires, under the averments of the bill, adjustment of these contentions. It is established that a state may regulate the practice of medicine, using this word in its most general sense. Dent v. West Virginia, 129 U. S. 114, 32 L. ed. 623, 9 Sup. Ct. Rep. 231; Hawker v. New York, 170 U. S. 189, 42 L. ed. 1002, 18 Sup. Ct. Rep. 573; Reetz v. Michigan, 188 U. S. 505, 47 L. ed. 563, 23 Sup. Ct. Rep. 390; Watson v. Maryland, 218 U. S. 173, 54 L. ed. 987, 30 Sup. Ct. Rep. 644; Collins v. Texas, 223 U. S. 288, 56 L. ed. 439, 32 Sup. Ct. Rep. 286. Complainant tries to escape from the rulings of those cases by asserting a discrimination against her. She is an ophthalmologist, she avers, 'which is a school of scientific learning and practice confined to the treatment of the inflammation of the eye and its membranes and in fitting glasses to the human eye,' and that she has practised her profession for the past three years, and does not employ medicine, drugs, or surgery. She, however, attacks the statute because, to use the language of her counsel, it 'arbitrarily discriminates against every other school of scientific knowledge and practice in favor of the school employing drugs in determining the accommodative and refractive states of the human eye.' It undoubtedly does, but gives the name of the school that of 'optometry' and its practitioners 'optometrists.' We cannot suppose that any injury is done her by the difference in names, and yet she gives no other tangible ground of complaint. Whether they are different, and whether the difference is of substantial or unsubstantial degree, she does not inform us. She practises one of them in preference to the other, and for the practice of that one the state has declared that its certificate of competency is necessary. The cases cited above establish that the state has such power and it requires no more of complainant than it requires of any other ophthalmologist, to use her word, or of any other optometrist, to use the word of the statute. The District Court was, therefore, right when it decided that, on the averments of the bill, complainant was not entitled to an injunction. Decree affirmed.

244.US.39

In a case governed by Judicial Code, § 266, where the jurisdiction of the District Court is invoked upon constitutional questions, this court, upon appeal from an order denying preliminary injunction, has jurisdiction to review the whole case. Louisville & Nashville R. R. Co. v. Garrett, 231 U. S. 298. Extension of the power of the Corporation Commission to the regulation of water systems belonging to individuals, as provided in the Public Service Corporation Act of Arizona (Rev. Stats., 1913, Title 9, c. XI), is permitted by the Constitution of Arizona, Art. XV. In the absence of an authoritative decision of the Supreme Court of the State to the contrary, a contemporaneous construction of the state constitution by an act of the legislature which is reasonable in itself and designed to accomplish the obvious purpose of the constitutional provision in question should be followed by this court. Art. IV, pt. 2, § 13, of the Arizona Constitution requiring that acts of the legislature shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title, is sufficiently complied with by the Arizona Public Service Corporation Act, supra, although that act applies to individuals as well as corporations, while its title refers to corporations and makes no mention of individuals. One who uses his property in supplying a large community with water thereby clothes.such property with a public interest and subjects the business to public regulation. Where it is conceded that the purpose of a water system is to supply water to the residents. and inhabitants of a particular townsite, though not to outsiders or the public generally, the mere fact that the lots of the townsite were originally purchased from the owner of the water system with the oral understanding that water could be secured from that system for use on the lots has no tendency to support the claim that the system furnishes water only to particular individuals in pursuance of private contracts made with such lot purchasers and is hence devoted exclusively to private use. The fact that service is limited to a part of a town does not prevent a water system from being a public utility. Water rates fixed by a state commission upon a basis of a net annual return of 10% of the value of the property employed, allowing an annual depreciation charge of 3Y2%, Hel4 not confiscatory, the valun tion oethe,.Oater system and estimate of operating expenses having been made by the state commission and concurred in by the District Court after careful inquiry by both, the evidence presented-t o this court being conflicting, and the District Court having appropriately protected the complaining party by providing that application for injunction may'be renewed after one year if the rates appear too low. 218 Fed. Rep. 111, affirmed.

In 1909 Ida A. Van Dyke and her husband organized a corporation under the name of the Miami Town-site Company, to acquire a tract in Gila county, Arizona, and establish a town thereon. A large part of Miami is now located on that land. In order to supply residents and others thereon with water for domestic, commercial, and fire purposes, the Van Dykes introduced a water system which developed rapidly. In October, 1913, the Arizona Corporation Commission, a public service commission with the usual powers of regulation, instituted before itself a proceeding to have the rates charged by the water system declared excessive, and to have reasonable rates established. The Van Dykes, who were duly served, filed a 'plea in bar;' alleged that the plant was the individual property of Ida A. Van Dyke; that the business was operated by her with her husband as manager, and not by a corporation; and denied not only the validity of the order, but also the jurisdiction of the Commission over them. The objection to the jurisdiction was overruled; and the Commission proceeded to a hearing on the merits, at which the Van Dykes offered no evidence. On May 1, 1914, after an elaborate report, an order was entered greatly reducing the water rates. The Van Dykes promptly filed a motion for a rehearing, which was denied. Thereupon they applied to the Commission to stay the operation of the order pending proceedings for review in the state court. This application also was denied. Then they filed, in the district court of the United States for the district of Arizona, this suit against the members of the Commission, the attorney general of the state, and the county attorney, to enjoin the enforcement of the order and the prosecution for penalties for failure to observe the same, and to have the order itself canceled. Both plaintiffs and defendants are citizens and residents of Arizona. Jurisdiction of the Federal court was invoked solely on the ground that the order of the Commission, if enforced, would deprive plaintiffs of their property, in violation of the 14th Amendment; and that the penalties prescribed by the Arizona statute for failure to obey the order are so severe as to prevent resort to the remedies therein provided for testing in the state courts the validity of the orders. An interlocutory injunction was applied for; and the case was heard before three judges, under § 266 of the Judicial Code [36 Stat. at L. 1162, chap. 231, Comp. Stat. 1913, § 1243]. The jurisdiction of the court was sustained under the rule declared in Exparte Young, 209 U. S. 123, 52 L. ed. 714, 13 L.R.A.(N.S.) 932, 28 Sup. Ct. Rep. 441, 14 Ann. Cas. 764; but the court refused relief against the order reducing water rates, saying: 'The evidence submitted by the complainants plainants does not afford this court a satisfactory basis on which to adjudicate the question of the value of the property used as a water plant, and therefore the court cannot say that the rates prescribed by the Corporation Commission are confiscatory, and there is no basis on which an order could be made declaring them illegal. If hereafter it shall appear that, under actual operation of the plant under these rates, the return allowed by such Corporation Commission operates as a confiscation of the property of complainant Ida A. Van Dyke, she may, at the expiration of one year, again present her evidence to the court and obtain appropriate relief on the facts then presented. 'The court will retain jurisdiction of the case, with permission to complainant Ida A. Van Dyke, if so advised, after the expiration of one year, to renew her application for an injunction against the rates established by the Corporation Commission as confiscatory. In the meantime the rates established will remain in force.' From an order entered in accordance with this opinion the Van Dykes appealed; and this court has jurisdiction to review the whole case. Louisville & N. R. Co. v. Garrett, 231 U. S. 298, 58 L. ed. 229, 34 Sup. Ct. Rep. 48. The errors alleged are, in substance, as follows: First. That the Arizona Constitution and Public Service Corporation Act were constitued and applied to subject property owned and operated by a natural person to regulation as a public service corporation. Second. That a water system established for the purpose of furnishing water only to purchasers of lots from the Miami Townsite Company was treated as a public water system. Third. That the rates fixed are confiscatory. These alleged errors will be considered in their order. 1. Whether the Arizona Corporation Commission had jurisdiction to regulate a water system owned by an individual. Arizona was admitted as a state February 14, 1912; and on that date its Constitution, which had been adopted December 9, 1910, took effect. By article 15 it created (§ 1) a Corporation Commission with full power to establish reasonable rates in the public services; and declared (§ 2) that corporations engaged in furnishing water 'shall be deemed public service corporations.' The Arizona Public Service Corporation Act (Ariz. Rev. Stat. 1913, title 9, chap. 11) provides that the term 'public service corporation' shall include 'water corporation,' § 2278(z); that 'water corporation' shall include 'every corporation or person . . . owning, controlling, operating, or managing any water system for compensation within the state,' § 2278(x); that the term 'person' includes an individual, § 2278(d); and that the term 'water system' shall include all property used in the supply or distribution of water 'for municipal, domestic, or other beneficial uses,' § 2278(w). It is clear that the legislature intended that the powers of the Corporation Commission should extend to plants owned and operated by individuals, and that the language used by it was adequate to express that intent. But it is insisted that provisions of the Arizona Constitution forbid the grant of such a power by the legislature; and the question resolves itself into this: Are the terms 'corporation' and 'public service corporation' in article 15 of the Constitution, used in the limited sense of incorporated companies, or do they include all public utilities, both incorporated and unincorporated, and whether they be firms or individuals? Article 15, entitled, 'The Corporation Commission,' consists of nineteen sections,1 and confers broad powers of regulation. The character of the service, that is, whether it is public or private, and not the character of the ownership, determines ordinarily the scope of the power of regulation. The need of such regulation and the manner of exercising it are the same whether a public utility is incorporated or not; and the purpose of a public service commission could easily be frustrated if concerns owned by individuals were excluded from its operation. The district court accordingly declined to give a technical meaning to the term 'public service corporation,' and interpreted it in the broad popular sense as embracing all public utilities. That construction is in line with numerous decisions holding that statutes imposing certain liabilities on 'railroad corporations' embrace all railroads, whether individually or corporately owned.2 It is contended that article 14, entitled, 'Corporations Other Than Municipal,' renders this liberal construction of article 15 inadmissible. Section 1, of article 14, defines "corporation,' as used in this article . . . to include all associations and joint stock companies having any powers or privileges of corporations not possessed by individuals or copartnerships;' and § 16 provides that the records of 'all public service corporations' shall at all times be subject to the inquisitorial powers of the state. It is argued that the term 'public service corporation,' thus excluding individually-owned utilities, could hardly have a different meaning in the very next article of the Constitution. But the answer is that article 14 deals only with the organization, incorporation, management, and powers of technical corporations, and the definition therein of 'corporation' is, for that reason, expressly limited by the phrase 'as used in this article.' This is significant and is entirely in harmony with the view that the term as used in some other article, having a wholly different purpose, should bear a different and broader construction. Furthermore, the powers of the Arizona Corporation Commission are not limited to those expressly granted by the Constitution. Section 6 of article 15 authorizes the legislature to 'enlarge the powers and extend the duties of the Corporation Commission;' and the legislature, by defining 'water corporation' to include 'persons' owning a water utility, clearly extends the powers of the Commission to individually-owned concerns. So that, even if the Commission was not originally vested by the Constitution with power over utilities owned by individuals, it now has that power directly by legislative enactment. In other words, the Constitution prescribed a certain minimum of power with which the Commission was intrusted; it authorized the legislature to enlarge from time to time the scope of the Commission's duties; and the legislature extended them to water concerns owned by individuals. This construction of the Arizona Constitution by the district court is in harmony with the contemporaneous construction evidenced by the Public Service Corporation Act (supra) enacted at the first session of its legislature. In the absence of an authoritative decision of the Arizona supreme court to the contrary, this legislative construction, reasonable in itself and designed to accomplish the obvious purpose of the constitutional provision, ought not to be set aside by this court. Louisville & N. R. Co. v. Garrett, 231 U. S. 298, 305, 58 L. ed. 229, 239, 34 Sup. Ct. Rep. 48. Appellants contend also that even if the legislature had power to extend the jurisdiction of the Corporation Commission to water systems owned and operated by individuals, the Public Service Corporation Act was, in this respect, invalid under article 4, pt. 2, § 13, of the Arizona Constitution, because this purpose was not expressed in the title of that act.3 Constitutional provisions requiring the subject of legislative acts to be embraced in the title are not to be given a strained and narrow construction for the purpose of nullifying legislation. The 'subject,' as expressed in the title, is the regulation of 'public service corporations;' and the provision in the act that 'public service corporations' shall include 'persons' owning a public utility is a matter obviously connected therewith. 2. Whether the Van Dyke water system is a private business. The Van Dyke system appears to be the only water supply of the inhabitants of the original town of Miami (not including the 'additions'). The number of water takers is not shown. But it appears that the large consumers who used meters numbered, at the time of the Commission's investigation, 675, yielding a revenue of $11,378.10; and that the number of small takers must have been much larger, since the revenue derived from the flat rates was $14,517.35. 'Property becomes clothed with a public interest when used in a manner to make it of public consequence and affect the community at large' (Munn v. Illinois, 94 U. S. 113, 126, 24 L. ed. 77, 84). The property here in question was devoted by its owners to supplying a large community with a prime necessity of life. That Mr. Van Dyke pumps the water on her own land, stores it in tanks on her own land, and thence conducts it through pipes all upon her own land (the strips reserved in the streets for conduits being owned by her), and delivers it to purchasers at the boundary line between her and their properties; and that lot purchasers bought with the understanding that they might purchase water from Mrs. Van Dyke's water system at rates fixed by her, —are all facts of no significance; for the character and extent of the use make it public; and since the service is a public one, the rates are subject to regulation. Counsel contend that the use is not public, because water is furnished only to particular individuals, in fulfilment of private contracts made with the purchasers of townsite lots. But there is nothing in the record to indicate that such is the fact. Purchasers seem to have bought merely with the oral understanding that water could be secured from the Van Dyke system. Affidavits filed by appellants state expressly that their water system is operated 'for the purpose of supplying the residents and inhabitants of said Miami town site with water, and not for the purpose of supplying persons outside of said town site, or the public generally, with water.' The offer thus is to supply all the 'inhabitants' within the given area; and that, of course, includes subvendees, tenants, and others with whom the Van Dykes had no contract relations. The fact that the service is limited to a part of the town of Miami does not prevent the water system from being a public utility. See Del Mar Water, Light, & P. Co. v. Eshleman, 167 Cal. 666, 681, 683, L.R.A. ——, ——, 140 Pac. 591, 948. 3. Whether the rates fixed are confiscatory. The Commission decided that the net return to the owner upon the value of the property employed should be at the rate of at least 10 per cent, after allowing an annual depreciation charge of 3 1/2 per cent. Water rates prescribed on this basis obviously cannot be held confiscatory unless either the valuation placed upon the property used was grossly inadequate or the cost of operation greatly underestimated. These elements are largely matters of fact and opinion, as to which both the Commission and the district court, after careful examination, found against the appellants. The case is presented to us on contradictory affidavits dealing with the items of value which go to make up the water system. We cannot say 'that it was impossible for a fair-minded board to come to the result which was reached.' San Diego Land & Town Co. v. Jasper, 189 U. S. 439, 442, 47 L. ed. 892, 894, 23 Sup. Ct. Rep. 571; Knoxville v. Knoxville Water Co. 212 U. S. 1, 18, 53 L. ed. 371, 382, 29 Sup. Ct. Rep. 148. And the provision in the order of the district court by which it retained jurisdiction of the case, with permission to Mrs. Van Dyke to renew her application for an injunction after one year, if the rates fixed appear to be confiscatory, afforded her appropriate protection. The decree of the District Court is affirmed. Mr. Justice McReynolds dissents.

245.US.122

Inducing and assisting aliens to come from abroad', working as seamen on the way, for bona fide service as seamen on an American ship during her voyage from American ports to foreign countries and while she lies in such ports preparatory to or in the course of such voyage, is not an assisting or encouraging of the importation or migration of alien "contract laborers" "into the United States," within §§ 4 and 5 of the Act of February 20, 1907, 34 Stat. 898, as amended by the Act of March 26, 1910, 36 Stat. 263. As these acts of Congress apply to all alien contract laborers without regard to their origin or nationality, in a suit to enforce their highly penal provisions the circumstance that the aliens in question were Chinese subjects is without significance. An American ship engaged in foreign commerce is not a part of the territory of the United States in the sense that seamen employed upon her while in American ports or on voyages can be said to be performing labor in this country within the meaning of the statutory provisions above cited. 229 Fed. Rep. 970, affirmed.

This is a suit to recover penalties upon the claim that the defendants 'knowingly assisted and encouraged the importation and migration' gration' of certain alien contract laborers into the United States, for the purpose of having them perform labor therein in violation of sections 4 and 5 of the Act of Congress of February 20, 1907 (34 Stat. 898). The Circuit Court of Appeals for the Ninth Circuit affirmed the judgment of the District Court, sustaining a general demurrer to the second amended complaint and the case is here for review on certiorari. The complaint is in nineteen separate counts in identical form and each relating to the employment of a single man. The essential allegations of each count, with a difference only in name of the man employed, are as follows: That in 1913 the three defendant corporations were operators of the British steamship Bessie Dollar, and also of the American steamship Mackinaw, and that the defendant Abernethy was the master of the former; that when the Bessie Dollar was in the port of Shanghai, China, the defendants formed the design of procuring a crew of alien laborers to be transferred to the Mackinaw at San Francisco, and to that end, although the Bessie Dollar had a full crew of officers and men, they procured one Dung Pau to sign shipping articles as a 'purported seaman' for service on her as follows, viz.: 'On voyages from Shanghai to San Francisco, there to join the S. S. Mackinaw, or other vessel, within the limits of 70 degrees north and 70 degrees south latitude, trading to and from as may be required, and back to Shanghai, to be discharged with consent of local authorities. Term of service not to exceed two years. The master has the option to transfer any or all of the within mentioned persons to any other British or Foreign ship bound to Shanghai in the same capacity and at the same rate of wages.' It is also alleged that Pau 'worked as a seaman' on the voyage to San Francisco, and on arrival there was discharged from the Bessie Dollar, and that on the same day, pursuant to the design formed in Shanghai, he signed shipping articles before the United States Shipping Commissioner for the Port of San Francisco for a voyage on the Mackinaw as follows: 'From San Francisco, Cal., to Shanghai, China, and such other Asiatic Ports as the master may direct, via Grays Harbor, Seattle, Wash., and such other ports on the Pacific Coast as the master may direct; final port of discharge shall be Shanghai, China.' And, finally, it is averred that, pursuant to the second contract, Pau worked 'as a seaman' on board the Mackinaw in the Port of San Francisco for some days, and on the Washington, and at Grays Harbor until the Washington, and at Grays Harbor until the time of the commencement of this action. The employment of the man to serve as a bona fide seaman on the Mackinaw is not questioned, and the allegations of the complaint negative any suspicion that the employment of him in China was a subterfuge adopted for the purpose of unlawfully securing his entry into the United States. Basing his right upon the allegations of the complaint, which we have thus epitomized, the claim of the petitioner is, that by employing and bringing an alien laborer as a seaman to San Francisco, in the manner described, for the purpose of shipping him, followed by his actually being shipped, as a seaman on board a vessel of American registry, the defendants violated the Act of Congress of February 20, 1907 (34 Stat. at Large, p. 898). The argument in support of this claim is that the seaman, described in each count of the complaint, was an alien contract laborer; that the steamship Mackinaw was a part of the territory of the United States, and that therefore the contracting to bring such alien to San Francisco and to there employ him upon such a vessel was to knowingly assist and encourage the migration of an alien contract laborer into the United States, for the purpose of having him perform labor therein, in violation of the fourth and fifth sections of the act. The validity of this claim, and of the argument in support of it, calls for the construction of three short provisions of two statutes. Section 2 of the act of 1907, as amended in 1910 (36 Stat. at Large, p. 263), furnishes this definition of 'contract laborers,' which must be read into sections 4 and 5 of the act of 1907: 'Persons * * * who have been induced or solicited to migrate to this country by offers or promises of employment or in consequence of agreements, oral, written or printed, express or implied, to perform labor in this country of any kind, skilled or unskilled.' Section 4 makes it a misdemeanor for any corporation to 'in any way assist or encourage the importation or migration of any contract laborer or contract laborers into the United States.' Section 5 imposes severe penalties for every violation of the act 'by knowingly assisting, encouraging, or soliciting the migration or importation of any contract laborer into the United States.' Thus a contract laborer is one who under the conditions described in the first of these statutes comes 'to perform labor in this country,' and the penalties denounced by the sections of the other act are against persons who knowingly assist or induce the importation or migration of such laborer 'into the United States.' The purpose of this alien labor legislation was declared by this court almost thirty years ago, in Holy Trinity Church v. United States, 143 U. S. 457, 12 Sup. Ct. 511, 36 L. Ed. 226, to be, to arrest the bringing of an ignorant, servile class of foreign laborers into the United States, under contract to work at a low rate of wages, and thus reduce other laborers engaged in like occupations to the level of the assisted immigrant. Having these terms of the statutes and this history in mind, can it with reason be said that the men shipped on the Mackinaw as 'seamen' were 'laborers,' and that when employed upon that vessel in foreign commerce they were performing labor 'in this country' within the meaning of the acts? In familiar speech a 'seaman' may be called a 'sailor' or a 'mariner,' but he is never called a 'laborer,' although he doubtless performs labor when assisting in the care and management of his ship; and a 'seaman' is defined, in the United States statutes applicable to 'Merchant Seamen,' as being any person (masters and apprentices excepted) who shall be employed to serve in any capacity on board a vessel. R. S. § 4612. In the shipping articles, which the United States law requires shall be signed by members of the crews of ships of American registry engaged in foreign commerce, the men are designated as 'seamen' or 'mariners.' Thus, neither in popular nor in technical legal language would the men employed on the Mackinaw be called or classed as, 'laborers,' and such seamen are not brought 'into this country' to enter into competition with the labor of its inhabitants, but they come to our shores only to sail away again in foreign commerce on the ship which brings them or on another, as soon as employment can be obtained. Equally unallowable is the contention that a ship of American registry engaged in foreign commerce is a part of the territory of the United States in such a sense that men employed on it can be said to be laboring 'in the United States' or 'performing labor in this country.' It is, of course, true that for the purposes of jurisdiction a ship, even on the high seas, is often said to be a part of the territory of the nation whose flag it flies. But in the physical sense this expression is obviously figurative (International Law Digest, Moore, vol. I, § 174), and to expand the doctrine to the extent of treating seamen employed on such a ship as working in the country of its registry is quite impossible. Thus the seamen employed on the Mackinaw were not within either the spirit or the letter of the law on which the petitioner bases his action and in any point of view his contention is fanciful and unsound and must be denied. In the result thus reached we are adopting the construction given to another section of this act of Congress of 1907 in Taylor v. United States, 207 U. S. 120, 28 Sup. Ct. 53, 52 L. Ed. 130, and we are approving the construction placed upon the sections we are here considering of the act, and upon earlier acts relating to the immigration of alien laborers, in the long-standing decisions of many lower courts and of the Department of Justice, in all of which it is held that seamen employed in foreign commerce cannot be considered alien contract laborers within the terms of the various statutes. United States v. Sandrey (C. C.) 48 Fed. 550; United States v. Burke (C. C.) 99 Fed. 895; Moffitt v. United States, 128 Fed. 375, 63 C. C. A. 117; United States v. Jamieson (C. C.) 185 Fed. 165; Immigration—deserting Seamen, 23 Opinions of the Attorney General, 521; Chinese Seamen Transfer of Crew—Alien Laborers, 24 Opinions of the Attorney General, 553. This construction of the act has also long been applied by the Department of Labor in its practical administration of the law. See Immigration Rules 1911, No. 10, subdivision 1, (a), (c), and (d); subdivision 3. The fact that the aliens in this case were Chinese subjects is without significance. The suit is to enforce the highly penal provisions of acts of Congress which apply to all alien contract laborers without regard to their origin or nationality. It results that the judgment of the Court of Appeals must be Affirmed.

243.US.299

Where no conflict with the Federal Constitution or laws is involved, a construction of a state statute'by the highest court of the State is accepted by this court as conclusive. The act of Tennessee providing that when nonresidents qualify in the State as the personal representatives of decedents dying and leaving assets therein such nonresidents. shall be treated as citizens of the State for the purpose of suing and being sued, was not intended to exclude them from resort to the federal courts. The purpose of the act as construed by the State Supreme Court was to permit them to sue in forma pauperis. 232 Fed. Rep. 708, affirmed.

The respondent, S. C. Moore, a citizen of Arkansas, in his representative capacity as administrator of the estate of Ivy B. Douglas, deceased, under appointment by the probate court of Shelby county, Tennessee, sued the petitioner, the Memphis Street Railway Company, a corporation organized under the laws of Tennessee, in the United States district court for the western district of Tennessee, for wrongfully causing the death of his decedent. He recovered judgment, which was affirmed by the circuit court of appeals, and the case is here on certiorari for review of the holding of that court that the plaintiff had legal capacity to maintain the suit in a Federal court. On the face of the declaration there was the requisite diversity of citizenship to give the Federal court jurisdiction, but the petitioner claims that the respondent, Moore, although a citizen of Arkansas, must be treated as a citizen of Tennessee under the statute of that state, entitled, 'An Act to Declare That, for the Purpose of Suing and Being Sued, a Nonresident of Tennessee, Who Qualifies as Executor or Administrator in Tennessee, Shall Be Considered a Citizen of Tennessee, and to Provide for the Service of Process upon Him' (Acts 1903, chap. 501, p. 1344), which provides: 'That whenever a nonresident of the state of Tennessee qualifies in this state as the executor or administrator of a person dying in or leaving assets or property in this state, for the purpose of suing and being sued, he shall be treated as a citizen of this state.' The remainder of the act prescribes the method of service of summons upon such a nonresident executor or administrator. Upon a full review of the legislation of the state in Southern R. Co. v. Maxwell, 113 Tenn. 464, 82 S. W. 1137, the supreme court of Tennessee decided that the sole purpose of this act is to extend to such nonresident executors and administrators as are described in it the privilege of suing in the state courts in forma pauperis, and that the effect of it, when read with the other statutes of the state on the subject, is to confine this privilege to the people of the state or to suits devoted to their interest, 'since the right is not extended to nonresident administrators generally, but only to those who have qualified in this state as the personal representatives of persons dying or leaving assets or property in this state.' No conflict with the Federal Constitution or laws being involved, this construction of the state statute will be accepted by this court as conclusive. Elmendorf v. Taylor, 10 Wheat. 152, 159, 6 L. ed. 289, 292; Old Colony Trust Co. v. Omaha, 230 U. S. 100, 116, 57 L. ed. 1410, 1416, 33 Sup. Ct. Rep. 967. But, irrespective of this rule, we quite agree with this authoritative declaration that the only purpose of the act is to determine privileges in the state courts of nonresidents who may be appointed administrators or executors of the estates of persons such as are described in the act. There is nothing whatever in the statute which indicates any intention on the part of the legislature to exclude nonresident executors or administrators from resort to Federal courts under appropriate conditions, and the construction which is urged upon us to give to it such an effect is too strained and artificial to be allowed. The judgment of the Circuit Court of Appeals is affirmed.