Volume 250 — United States Reports

<p>APPEAL FROM THE COURT OF CLAIMS.</p> <p>The case is stated in the opinion.</p>

The case is stated in the opinion. Under various laws and conditions similar situations have been presented and uniformly, wherever a right to cut or take timber has been recognized, the right to dispose of it as incidental to its cutting or taking has followed. United States v. Cook, 19 Wall. 591; Shiver v. United States, 159 U. S. 491; Stone v. United States, 167 U. S. 178; 27 L. D. 366; 30 L. D. 88.

<p>ERROR TO THE SUPREME COURT OP THE PHILIPPINE ISLANDS.</p> <p>The case is stated in the opinion.</p>

Held: that defendant’s label was so dissimilar to plaintiff’s in shape, script, meaning, and mode of attachment, that it could not be said to add appreciably to any deception that might arise from the brown color of label and bottle. 241 Fed. Rep. 817 , affirmed. The case is stated in the opinion. Mr. Russell Jackson for petitioner. Mr. John W. McMillan was on the brief. Mr. H. M. Garwood for respondents.

<p>APPEAL PROM THE COURT OP CLAIMS.</p> <p>The case is stated in the opinion.</p>

The case is stated in the opinion. The ground of. the present suit is that the taxes in question were erroneously collected on “contingent beneficial interests” contrary to the Act of June 27, 1902. Since the latter act was in force at the time the former suit was brought it can only be presumed that the suit was based on the same ground. But whether it was or not is immaterial since the subject-matter of the suit was the same. Northern Pacific Ry.

Held: that the boundary between the two States as fixed by the acts was the middle of the main channel of navigation, and not a line equidistant from the banks of the river. P. 43. Arkansas v. Tennessee, 246 U. S. 158 .

Held: that no contractual liability could be implied against the United *47 States, and that the new contractor, having so taken and used the property, was liable to its owner for the conversion. Id. United States v. Buffalo Pitts Co., 234 IT. S. 228, distinguished 241 Fed. Rep. 989 , reversed. The case is stated in the opinion.

Held: That the term “restricted lands” refers to the restrictions on alienation imposed by Congress, to protect the Indians from their own incompetency, (p. 61); and (2) that, in the absence of approval by the Secretary, a judgment for partition or sale, in a suit brought under this section in the state court respecting such lapds, is inoperative, so that a finding of heirship, forming a part of it, is not conclusive in…

Held: that, since the royalties took the place, pro tanto, of the land, as the lessee extracted and took the minerals, the special estate attached to the royalties, and the child took the interest or income therefrom, while- she lived, but not beyond April 26, 1931, leaving the principal, like the homestead, to go to the heirs in general on the termination of her special right. Id, 243 Fed. Rep. 42 , reversed.

Held: at most,'an assertion of a title, right,privilege or immunity under the Federal Constitution; and the refusal of such continuance by the state court held to involve no question as to the jurisdiction of this court to render a conclusive judg *72 ment in the suit between the States, locating their boundary, and hence no question as to the validity of “an authority exercised under the United States” within the meaning…

<p>certiorari to the circuit court of appeals FOR THE third' circuit.</p> <p>The case is stated hi the opinion.</p>

Held: that an innocent misdescription of the goods, placing them in a class entitled to a lower rate under the carrier’s filed schedules, merely imposed upon the shipper or consignee an obligation to pay freight charges according to their true character, and did not affect the liability of the carrier for a failure to deliver, there being no clause exempting the carrier or limiting its liability in case of such…

<p>APPEAL PROM THE COURT OP CLAIMS.</p> <p>The case is stated in the opinion.</p>

<p>ERROR TO THE SUPREME COURT OF THE STATE OF ARKANSAS.</p> <p>TAe case is stated in the opinion.</p>

Held: engaged in interstate commerce, within the meaning of the Federal Employers’ Liability Act. 132 Maryland, 345, affirmed. The case is stated in the opinion. Mr. Frederic D. McKenney, with whom Mr. John Spalding Flannery was on the briefs, for petitioner. . Mr. T. Alan Goldsborough for' respondent.

The caséis stated in the opinion. It is true that the provisional or trust patent did not actually issue until February 6, 1892, or perhaps more correctly speaking it was dated as of that date, but it is likewise true that Stella Washington’s right to a preliminary patent vested on the instant her allotment was approved. Her equitable title was then complete and did not depend upon the delivery of the trust patent. Ballinger v. Frost, 216 U. S. 240.

<p>The court has no jurisdiction on error, under Jud. Code, § 237, as amended, on the ground that a state law was sustained against a claim that it impaired the obligation of a prior contract, where the state court appears to have rested its judgment, reasonably, on earlier laws and decisions, without any application of the law in question.</p>

The case is stated in the opinion. This practice of taking one per cent, deprives the bailor of plaintiffs in error of his property without due process of law, and takes his property without compensation.

<p>Section 29, Laws of South Dakota, 1909, c. 240, which forbid shipment by carrier of wild ducks and is applicable whether the'birds were taken lawfully or unlawfully, or shipped in open or closed season, is not inconsistent with the Federal Migratory Bird Act of March 4, 1913, c. 145, 37 Stat. 828, 847, .and the regulations of the Department of Agriculture adopted thereunder, since the latter act prohibits only the destruction or taking of birds contrary to the regulations and the regulations merely prescribe the closed seasons, and neither the act nor the regulations deals with shipping. P. 120.</p> <p>Whether other provisions of this state law may be in conflict with the federal act is not considered, since the provisions in question may stand alone. Id.</p> <p>The declaration of the federal act that the migratory birds “shall hereafter be deemed to be within the custody and protection óf the Government of the United States,” is limited by the context to the prohibition above stated.. P. 121.</p>

<p>ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.</p> <p>The case is stated in the opinion.</p>

<p>In the progress of filling in earth to replace a railroad trestle used in interstate commerce, the earth as dumped attained a level higher than the rails on the trestle, and, to keep the track open for traffic, as well as to widen the embankment, the earth was spread away, by scrapers adjusted to a car attached for the purpose to the dump train. Held,, that an employee in charge of the car, and employed also in removing earth and stones from between the rails, was employed in interstate commerce within the meaning of the Employers' Liability Act.</p>

Held: however, that as the power to fix rates was legislative and not judicial, the prohibition had no application and the injunction prayed was granted. In Simon v. Southern Ry.

<p>Decided on the authority of Dakota, Central Telephone Co. v. South Dakota, ante, 163.</p>

The case is stated in the opinion. A suit against the Postmaster General or his agents, which seeks to control him in the matter of telegraph charges is in legal effect a suit against the United States. Under the joint resolution, pursuant to which the President operates the telephone and telegraph lines, the power to fix rates, both interstate and intrastate, is in the President. The States have no power to estalish intrastate rates.

The case is stated in the opinion. The respondent through its officers and employees is now operating the telephone system owned by it as an instrumentality of the Federal Government. It follows, therefore, that, if the power to regulate intrastate rates has been reserved to the States by the joint resolution under consideration, the respondent is the proper agency hi Massachusetts against which the exercise of that power should be directed.

<p>ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOE THE SOUTHERN DISTRICT OF OHIO.</p> <p>The case is stated in the opinion.</p>

<p>Congress has power, under the commerce clause, to forbid and punish a conspiracy to forge and utter bills of lading for fictitious interstate shipments. United States v. Ferger, ante, 199.</p>

Held: that while the attorney’s right to collect his fee from other assets of the client was not affected, the restriction, as to the fund appropriated, was within the power of Congress, and did not deprive him of property or of liberty of contract without due process, although subsequent to the making of the contract and rendition of the services. P. 217. 177 Kentucky, 518, reversed. The case is stated in the opinion.

<p>A judgment.holding certain shares of such a. character as to come within the general succession tax of the State, though the tax was opposed as reaching real property outside of the State, held not to involve the validity of the tax statute or of an authority exercised under the State, and hence not to be reviewable by writ of error under Jud. Code, § 237, as amended in 1916.</p>

<p>In a suit by a trustee in bankruptcy to set aside preferences and transfers, the jurisdiction of the District Court depends upon the allegations of the bill and not on the proof in support of them; and, where the bill makes a substantial case within the jurisdiction,, the court must determine the merits. P. 227.</p> <p>Under the Bankruptcy Act, as amended in 1903 and 1910, the District Court has jurisdiction of a suit brought by the trustee against a third party without his consent, to set aside preferences, under § 60b, and transfers under §§ 67e and 70e. Id.</p> <p>Whether an alleged surrender of real property and delivery of rent notes amounted to conveyances under the state law, held matters appertaining to the merits and not to be considered on direct appeal under § 238 of the Judicial Code. P. 229.</p>

Held: that the assignment of the remainder interest carried with it pro tanto the obligation of the bond; and that the action was one prosecuted by an assignee to recover on a chose in action, not cognizable by the District Court, where the assignor and the defendants were citizens of the same State. Jud. .Code, §24. P. 233. Bmon v. Fletcher, 235 U. S. 589 , distinguished. Affirmed. *230 The case is stated in the opinion.

<p>Under § 9 of the Act of May 27,1908, c. 199, 35 Stat. 312, providing “that the death of any allottee . . . shall operate to remove all restrictions upon the alienation of said allottee’s land: Provided, That ho conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee,” lands of a deceased full-blood allottee, descended to a full-blood heir and • not conveyed with the approval of such court, are “restricted lands” in the sense of § 2 of the same act, which provides that leases of “restricted lands” for oil, gas or other mining purposes may be made, with the approval of the Secretary of the Interior, under rules and regulations provided by him, and not otherwise. P. 238.</p> <p>The fact that by the proviso of § 9, supra, Congress authorized a state court-practically as a federal agency-to sanction conveyances, does not affect the force and operation of the restrictions while they remain. Id.</p> <p>During the continuance of such restrictions, the duty to protect the interests of the full-blood heir by supervising the collection, care and disbursement of royalties arising from an oil and gas lease made under § 2, remains with the Secretary of the Interior. P. 239.</p>

Held: that an ordinance of the city requiring removal of the track where it crossed the thoroughfare, for the safety of the public, did not violate the ■rights of the railroad under the contract' and due process clauses, it appearing that use of the track could still be maintained through connections with the yards of its owner and of another company, and that resulting expense and loss of revenue would be relatively…

Held: that the District Court had jurisdiction to arrest the vessel, under § 9 of the Shipping Board Act of September 7,1916, c. 451, 39 Stat. 728 , providing that vessels purchased, chartered,'or leased by the Board, “while em *247 ployed solely as merchant vessels shall be subject to all laws, regulations, and liabilities governing merchant vessels, whether the United.

Held: that this in effect relieved the defendant from obligation to observe the *257 effect of the reduced rate or prepare to meet inferences drawn from it, and.hence afforded a reason why a petition for leave to file a bill of review in the District Court, based on the test, should not be granted by this court. P. 261.

<p>APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.</p> <p>The case is stated in the opinion.</p>

Held: that witnesses subpoenaed in a grand jury investigation of .possible violations of the Corrupt Practices Act of June 25, 1910, as amended,' and of possible perjury in connection therewith, had no standing to question the power of Congress, under Art. I, § 4, of the .Constitution, to enact provisions for regulation and control of primary elections of candidates for the office of United States Senator. P. 279.

Held: that it was discretionary with the court of that district, without requiring a statement of reasons from the Government, to order his removal under a later indictment charging failure to make the report in the District of Columbia, and that the discretion was not reviewable by this court in habeas corpus. P. 289. 256 Fed. Rep. 565 , affirmed. The case is stated in the opinion. Mr. Stephen C. Baldwin for appellant.

The case is stated in the opinion. cited the following in support of the contention that the words are actionable per se: Washington Times v. Downey, 26 App. D. C. 258; Taylor v. Casey, 1 Minor (Ala.), 258; Culmer v. Canby, 101 Fed. Rep. 195; Raymond v. United States, 25 App. D. C. 555; Herrick v. Tribune Co., 108 Ill.

Held: that the facts could be shown, and that the wife was not liable to assessment although the shares remained in her name on the books when the bank failed. Id. Approval, ratification and acquiescence all presuppose the existence of some actual knowledge of the prior action and what amounts to a purpose to abide by it. P. 299., 244 Fed. Rep. 346 , affirmed. The case is stated in the opinion.

United States v. Colgate & Co., 250 U.S. 300 (1919), is a United States antitrust law case in which the United States Supreme Court noted that a company has the power to decide with whom to do business. Per the Colgate Doctrine, a company may unilaterally terminate business with any other company without triggering a violation of the antitrust laws. This case created an exception to vertical price restraints in vertical agreements. According to the ruling, resale price maintenance is generally illegal per se, but if a supplier merely says it will not deal with resellers that charge less than the supplier's stipulated price, the supplier need not deal with such a retailer. This is a narrow exception, as companies are still prohibited from threatening or warning price-cutters.

Held: that A could recover the full damage in an action on the contract, without any accounting and settlement of the corporation’s affairs, and that the measure was the whole depreciation,and not merely a part of it proportionate to the other parties’ stipulated interest in the proposed enterprise. Id. 244 Fed. Rep. 121 , reversed in part and affirmed in part. The case is stated in the opinion.

<p>APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.</p> <p>The case is stated in the opinion.</p>

Held: that this proviso clearly confers exclusive and final jurisdiction on the Treasury Department, so that claims under the act are not within the jurisdiction of the Court of Claims. P. 331. United, States v. Laughlin, 249 U. S. 440 , distinguished.

Held: that to confine the patent by construction to the oils which will in practice produce the desired froth would subordinate the clear description of the claims to an implied and vague description which would leave the whole subject ■ at large to become a field for further experiment, and- might cause the claims to fall short of satisfying the patent law. P. 349.

Held: that the purpose was to limit the right to reliquidate, in the interest of the citizen and the security of commercial transactions; and where the collector reliquidates on the ground of fraud, it cannot be presumed that his action was correct so as to cast the onus of disproving fraud upon the importer. P. 357.

<p>APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.</p> <p>The cases are stated in the opinion.</p>

<p>The Mississippi practice providing for assessment of .damages and determination of the right of condemnation in separate proceedings is consistent with due process. P. 365.</p> <p>Consistently with the Fourteenth Amendment the state law may allow condemnation for maintaining an existing ‘telegraph line as well as for building a new one. Id.</p> <p>And where the judgment in condemnation is for a new line, the state courts may, under the Amendment, reserve inquiry into an alleged purpose to use it for maintaining an existing line, in alleged infraction of the state law, until such use is attempted. Id.</p> <p>A judgment of condemnation for a single telegraph line on a railroad right of way is not void under the Fourteenth Amendment for failure to describe the exact location of the poles, when it requires them to be set so as not to interfere with train operations or the proper use of the right of way by the railroad or by other telegraphs already upon it, or endanger persons or property, and is subject to stipulations binding the condemnor to change its poles, etc., to conform to necessary changes or new construction of tracks. P. 366.</p> <p>Parts of an interstate railroad right of way and of bridges over navigable waters may be condemned for the use of á telegraph company pursuant to the state law. P. 367.</p> <p>The Post-Roads Act of July 24, 1866, waived any objection to such exercise of state sovereignty as an interference with interstate commerce, and no other act of .Congress prevents. Id.</p> <p>Whether the District Court properly dismissed a bill on the ground of res judicata, held not necessary to determine where a correct decision on the merits must have resulted the same. Id.</p> <p>An injunction by a federal court forbidding a railroad company to interrupt a telegraph company in the use of its wires on the railroad right' of way during a certain period or until the telegraph company could condemn, held binding on the federal court of another circuit. P. 368.</p>

<p>certiorari to the circuit court of appeals for the FIRST CIRCUIT.</p> <p>CERTIORARI TO THE CIRCUIT COURT jOF APPEALS FOR THE SEVENTH CIRCUIT.</p> <p>The cases are stated in the opinion.</p>

<p>CERTIORARI TO THE SUPREME COURT OP THE STATE OP OREGON.</p> <p>The case is stated in the opinion.</p>

Held: that no question was presented under the contract clause affording this court jurisdiction to review a judgment against the city by the state Supreme Court. P. 396. Writ of error to review 166 Pac. Rep. 1058 , dismissed. *395 The case is stated in the opinion. Mr. Preston A. Shinn for plaintiff in error. Mr. T. J. Leahy, ■ with whom Mr. C. S, Macdonald and Mr. Burdette Blue were on the brief, for defendants in error.

<p>ERROR TO THE SUPREME COURT OP THE STATE OF OKLAHOMA.</p> <p>The case is stated in the opinion.</p>

Held: a tax upon the business of manufacture within the city, and not a tax upon the sales. P. 463. Such a tax when computed upon the sales of goods manufactured in the city under the license, but removed, and afterwards sold, beyond the State, does not impose a direct burden on interstate commerce or, when the manufacturer is a sister-state corporation, deprive it of property without due process.

<p>In a contract governing an interstate shipment of live stock the carrier’s liability for negligent injury of the stock during transportation may lawfully be conditionéd' upon the presentation of a written claim by the shipper within five days from their removal from the cars. P. 467.</p> <p>■In view of the enlarged scope of “transportation,” as'defined by the Hepburn Act, an interstate movement of live stock is not ended when the car containing them is placed opposite a cattle chute of the carrier on a switch track at destination and left in charge of the shipper for unloading, when an adequate time for unloading them has not expired, although the shipper assumed the duty, risk and’expense of their unloading by the terms of the contract for transportation. ' Id. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Dettlebach, 239 U. S. 588.</p>

Held: any rule of court to the contrary notwithstanding.” Construing the statute in Nudd v. Burrows (1875), 91 U. S. 426 , 441, 442, this court said: “The purpose of the provision is apparent upon its face. No analysis is necessary to reach it. It was to bring about uniformity in the law of procedure in the Federal and State courts of the same locality. It had its origin in the code-enactments of many of the States.

<p>CERTIORARI TO THE COURT OF CIVIL APPEALS, SECOND SUPREME JUDICIAL DISTRICT,' OF THE STATE OF TEXAS.</p> <p>The case is stated in the opinion.</p>

Held: not to estop them, by way either of res judicata or of election, from maintaining a further suit to declare the majority shareholder their trustee of new shares taken by it under the reorganization.

<p>APPEAR PROM THE DISTRICT COURT OP THE UNITED STATES FOR THE SOUTHERN DISTRICT OP NEW YORK.</p> <p>The case is-stated in the opinion.</p>

Held: that the defendant was not entitled to a new trial of that issue upon the ground that the case in the District Court had been treated as involving only the statutory liability. Id. Under Rev. Stats., § 5145, a director of a national bank remains responsible as such in the absence of evidence that he has resigned or refused to qualify when reelected. Id. 241 Fed. Rep. 737 , affirmed. The case is stated in the opinion.

Held: that such taxes did not infringe the privileges and immunities provision of Article IV of the Constitution; or the like provision, or the equal protection or due process clauses, of the Fourteenth Amendment. 90 N. J. L. 707 ; 92 id. 514, affirmed. The cases are stated in the opinion. Mr. Lawrence Maxwell and Mr. E. C. Lindley, with whom Mr. William A. Smith was on the brief, for plaintiffs in error.

<p>To review a judgment of the Court of Claims dismissing a petition for ’ want of jurisdiction upon the ground that the facts alleged have no . tendency to establish a contract with the United States, a finding of facts is not essential. P. 546.</p> <p>Paragraph 13 of Article 8 of the Articles for the Government of the Navy (Rev. Stats., § 1624), which imposes a penalty on any person in the Navy who receives, etc., on board his vessel any goods or merchandise, for freight, sale or traffic, except gold, silver or jewels, for freight or safe-keeping; or who demands or receives any compensation for the receipt or transportation of any other article than gold, silver or jewels, without authority from the President or the Secretary of the Navy; recognizes and limits the preexisting discretion of commanding officers to receive property on board for the protection of private rights; and neither under, this statute nor. under § 1020 of the Navy Regulations, by which the compensation for the permitted service is to be applied to the benefit of officers and men, does such a deposit of gold give rise to any contract with the United States. P. 547.</p>

Held: not arbitrary even hi erroneous; and not subject to revision ; by mandamus. P. 552. / Held, further, that the Secretary’s discretion in the matter was not foreclosed by rulings-iii earlier cases, as to what constitutes the opening or improvement of a mine, said to have been relied on in the making of the locations, but the effect of which is found not to be inconsistent with the decision complained of.

Held: that the defendant was entitled to prove that it received such allowances in the honest belief that they were sufficiently described in and justified under the tariffs, such belief having been based on advice given the defendant when the tariff description was first formulated, upon the acceptance without objection by the Interstate Commerce.

<p>ERROR TO THE SUPERIOR COURT OP THE STATE OP PENNSYLVANIA.</p> <p>The case is stated in the opinion.</p>

Held: That the decree did not estop persons, who' though they had paid a claim And disputed another, did not appear in the bankruptcy proceedings, assent to the composition, or prove a claim, from prosecuting an action against T in a court of another State seeking to hold him as a general partner of the bankrupts for an after-discovered fraud; (2) that the District Court had no jurisdic- ■ tion ancillary to the bankruptcy…

Held: that related portions of the charge, on their right to call upon their general knowledge and information, were not objectionable. P.587. The district judge is not required to analyze and discuss the details of the evidence, particularly when not requested to comment upon any special phase of it. P. 588.

<p>Under the Choctaw and Chickasaw Supplemental Agreement (Act of' July 1, 1902, c. 1362, 32 Stat. 641,) the heirs of a deceased Indian acquire no vendible interest, before selection, in land that may be allotted in his name for their benefit under § 22; and their warranty deed cannot operate, by'estoppel.or otherwise, to convey land selected and allotted after it was made. P. 592. Franklin v. Lynch, 233 U. S. 269, followed. Mullen v. United States, 224 U. S. -448; Doe v. Wilson, 23 How. 457'; Jones v. Meehan, 175 U. S. 1, distinguished.</p> <p>So held where the lands claimed were selected and allotted in lieu of other lands, described in the deeds, which had been selected before the deeds were made but were afterwards allotted to other selectors.</p>

The cases are stated in the opinion. The additional award is wholly unrelated to claimant’s ability to work. There is not the slightest intimation that the disfigurement has impaired claimant’s earning capacity beyond the period for which he was awarded a separate amount for the entire period of disability. Moreover, when that award was made, plaintiff had returned to . work.

<p>EBBOB TO THE SUPBEME COUBT OP THE STATE OP MISSISSIPPI.</p> <p>The case is stated in the opinion.</p>

Held: In the absence of any suggestion of illegality or mismanagement in acquisition or operation, all parts of the railroad’s system within the State, profitable ok unprofitable, should be em-raced in the computation. P. 611.

Abrams v. United States, 250 U.S. 616 (1919), was a decision by the Supreme Court of the United States upholding the criminal arrests of several defendants under the Sedition Act of 1918, which was an amendment to the Espionage Act of 1917. The law made it a criminal offense to criticize the production of war materiel with intent to hinder the progress of American military efforts. The defendants had been arrested in 1919 for printing and distributing anti-war leaflets in New York City. After their conviction under the Sedition Act, they appealed on free speech grounds. The Supreme Court upheld the convictions under the clear and present danger standard, which allowed the suppression of certain types of speech in the public interest.