Volume 255 — United States Reports

The case is stated in the opinion. Notwithstanding Congress by express constitutional provision has the power to prescribe rules for the government and regulation of thé army, those rules must be interpreted consistently.with the provision that the trial of all crimes, except in cases of impeachment, shall be by jury, and that in all criminal prosecutions the accused shall enjoy the right to a trial by jury, and that no person shall be deprived of life or liberty without due…

Held: that evidence was admissible in a habeas corpus proceeding to prove the military status of the relator at the time of his trial and conviction, where the record of the court-martial was silent on the subject beyond showing that he was charged as a captain in the army. Id. 7.

Berger v. United States, 255 U.S. 22 (1921), is a United States Supreme Court decision overruling a trial court decision by U.S. District Court Judge Kenesaw Mountain Landis against Rep. Victor L. Berger, a Congressman for Wisconsin's 5th district and the founder of the Social Democratic Party of America, and several other German-American defendants who were convicted of violating the Espionage Act by publicizing anti-interventionist views during World War I.

Held: that the purpose' of the legislature in- enacting the tax laws involved in this case must be gathered from the statutes and not from the allegations in the bill attacking them, admitted by demurrer. P. 49. 4.

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

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

Held: That, in view of the. policy of the State to. retain control over navigable waters, an intention to convey with the lots a right to wharf out to the line and thus gain access to the fairway, could not be implied, even assuming ■'that there was no law at the time under which permission to' do so could be granted by the state harbor commissioners.

Held: that a judgment which previously would have been reviewable in this court only because of pecuniary amount (Jud. Code, § 244) but which, under the Act of 1915, went directly to the Circuit Court of Appeals, could not be brought here by appeal from that court, although not-among those enumerated as final by Jud. Code, § 128. Id.' Appeal to review 255 Fed. Rep. 442 , dismissed for want of jurisdiction.

<p>1. The rule that an appeal in admiralty by either party opens the case to both parties for á trial de novo, is established practice in the Third Circuit. P. 79.</p> <p>2. Where a party relies on this rule and on his .opponent’s appeal, the court should not deprive him of his right to be heard by allowing the appeal to be withdrawn after the time within which he may himself appeal has elapsed. P. 80.</p>

This is one of several cases (see post, 98, 100, 102, 104,106,108,109) involving the constitutionality, in part, of § 4 of the Act of August 10, 1917, c. 63, 40 Stat. 276, known as the Food Control or Lever Act, as amended by § 2 of the Act of October 22, 1919, e. 80, 41 Stat. 297,, which is set out below.1 An indictment charged, in the first count, that the Cohen Company, a dealer in sugar and other necessaries, wilfully and feloniously made an unjust and unreasonable rate…

APPEAL PROM THE DISTRICT COURT OP THE UNITED STATES POR THE DISTRICT OF tiOLORADO. Bill to enjoin institution of criminal prosecutions against dealers in wearing apparel, under § 4 of the Food Control Act. A controversy , as to the proper construction of a criminal statute does not authorize an injunction against prosecutions under that statute.

<p>APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF MISSISSIPPI.</p> <p>Bill to enjoin criminal prosecutions against dealers in wearing apparel under § 4 of the Food Control Act.</p>

These were direct appeals from the District Court involving the validity of part of the Food Control Act. The first was from a decree enjoining the United States Attorney from-prosecuting dealers, in milk. The other two were from judgments quashing indictments based upon sales of potatoes.

. This was a suit by a dealer in wearing apparel to enjoin further prosecution under an indictment based on the fourth section of the Pood Control Act. The plaintiff appealed directly from a decree dismissing the bill.

This was a suit by a-corporation, a dealer in sugar, and .officers and stockholders, to enjoin criminal proceedings under the Food Control Act. Plaintiffs appealed directly from a decree dismissing the bill.

<p>ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF GEORGIA.</p> <p>Writ' of error to a conviction and sentence under § 4 of the Food Control Act, for selling sugar for excessive prices.</p>

Plaintiffs in error were convicted, under § 4 of the Food Control Act, of conspiracy to exact excessive prices for wearing apparel, and, in furtherance of the conspiracy, of putting on sale in a store various articles of clothing at prices varying from. 110 to 194 per cent, in advance of cost; and also of making sales of various suits of clothes at unreasonable prices.

Held: not res judicata in a subsequent suit by shippers againat the company to compel it to observe the order in futuro. P. 123. 188 Indiana, 87, reversed. The case is stated in the opinion. Mr. D. P. Williams, with whom Mr. Samuel O. Pickens, Mr. Frederic D. McKenney, Mr. Charles W. Moores, Mr. R. F. Davidson and Mr. Owen Pickens were on the briefs, for plaintiff, in error.

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

<p>ERROR TO THE DISTRICT COURT OF THE UNITED'STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.</p> <p>The case is stated in the opinion.</p> <p>'The following authorities were cited for the Government: Commonwealth v. Kennedy, 170 Massachusetts, 18; Bishop, New Criminal Law, vol. i, §§ 435, 436; People v. Murray, 14 California, 159, 160; United States v. Stephens, 12 Fed. Rep. 52, 54; Commonwealth v. Peaslee, 177 Massachusetts, 267; Commonwealth v. Hill, 11 Massachusetts, 135, 136; United States v. Quincy, 6 Pet. 443, 464; United States v. Bittinger, Fed. Cas. No. 14,598; Swift &. Co. v. United States, 196 U. S. 375, 396; Rex v. Vaughan, 4 Burr. 2494; Rex v. Isherwood, 2 Lord Kenyon, 202; Rex v. Plympton, 2 Lord Raymond, 1377; Rex v. Gurney, 10 Cox C. C. 550; State v. Ellis, 33 N. J. L. 102; United States v. Worrall, 2 Dall. 384; Wharton's State Trials, 139; State v. Carpenter, 20 Vermont, 9, 12; Walsh v. People, 65 Illinois, 58, 60; Commonwealth v. Murray, 135 Massachusetts, 530, 532; Light’s Case, [1915] 11 Crim. App. Cas. 111, 113; Stephen, Digest of Criminal Law, c. v, art. 49; Laitwood’s Case [1910], 4 Crim. App. Cas. 248; White’s Case [1910], 4 Crim. App. Cas. 257, 271; Robinson’s Case [1915], 11 Crim. App. Cas. 124; State v. Hurley, 79 Vermont, 28; Rex v. Taylor, 1 F. & F. 511; People v. Sullivan, 173 N. Y. 122, 133-136; People v. Youngs, 122 Michigan, 292, 295 (dissenting opinion); Beale, Criminal Attempts, 16 Harv. Law Rev. 491.</p> <p>The following authorities were cited for the defendant in error: Bouvier (1897), vol. i, p. 190 (attempt); People v. Murray, 14 California, 159; United States v. Stephens, 12 Fed. Rep. 52, 54; Hicks v. Commonwealth, 86 Virginia, 223; Groves v. State, 116 Georgia, 516; People v. Youngs, 122 Michigan, 292; State v. Hurley, 79 Vermont, 28, 33; Patrick v. People, 132 Illinois, 529.</p> <p>To constitute an “attempt” or “endeavor” to influence a juror, it is necessary to show, not only that that was the defendant’s purpose, but that he performed some acts beyond mere preparation which would “amount to the commencement of the consummation.” We'have only an unaccepted solicitation of a third person to ascertain a juror’s attitude towards men held for trial; if 'we are to assume that the defendant here had in mind, upon receiving information that the juror was not hostile to the men about to be placed on trial, to “corruptly endeavor to influence ” such juror, his conduct amounted to nothing but preparation for the “endeavor.” Between the two — preparation for the endeavor and the endeavor itself to influence a juror — there is a wide difference.</p>

<p>The case is stated in the opinion.</p>

Review of a decree of the Circuit Court of Appeals, which reversed a decree of the District Court dismissing a bill to establish title to a body of ore as within the plaintiff’s patented mining claim and to obtain an account for ore extracted. The case is stated in the opinion, p. 159.

The case is stated in the opinion. The judgment below-affirmed a judgment of the District' Court. ' The United States is not contractually bound for interest except by express agreement. The implied - promise is to pay the value of the property as of date of the taking, without interest. An obligation to pay interest is not implied. United States v. North American Transportation Co., 253 U. S. 330.

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

Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921), was a United States Supreme Court case that helped define the range and scope of federal question jurisdiction in state corporate law matters. The case dealt with whether or not a district court had the power to uphold the constitutional validity of the Federal Farm Loan Act of 1916.

This was a direct appeal to, review a decree of the District Court dismissing a libel in r.em for want of jurisdiction over the ship; The case is stated in the opinion.

. This was certiorari to review a decree of the Circuit Court of Appeals affirming a decree oh the District Court, in admiralty, which dismissed a libel in rem. The case is stated in the opinion.

APPEAL PROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.' Appeal from a decree of the Circuit Court of Appeals which affirmed a decree of the District Court holding Bodkin trustée for Edwards as to certain patented land. The case is stated in the opinion.

<p>APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA.</p> <p>-The ease is stated in the opinion.</p>

Held: shall be conveyed, transferred, assigned, delivered, or paid over to the Alien Property Custodian, or the same may be seized by the Alien Property Custodian; and all property thus acquired shall be held, administered and disposed of as elsewhere provided in this Act. “Whenever any such property shall consist of shares of stock or other beneficial interest in any corporation, *243 association, or company or trust, it…

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

The case is stated in the opinion. The common-law fiction regards the donor of a power as the source of title to an appointed estate, but the donee's execution of the power is a transfer of such estate when such execution is requisite to pass title to the appointees. Chanler v. Kelsey, 205 U. S. 466; Luques Appellant, 114 Maine, 235, 340; Minot v. Treasurer, 207 Massachusetts, 588; McFall v. Kirkpatrick, 236 Illinois, 281, 306.

Held: that the proceeding was not in rent, passed only such title as the city had, and afforded no' basis for ancillary jurisdiction of a suit in the same court to protect the title sold against a later judgment" of the state courts which adjudged it inferior to another title, derived by independent grant from the State, whose holder and its predecessors were not parties to the receivership proceedings. Affirmed.

This was an appeal from a decree of the Circuit Court of Appeals reversing a decree of the District Court dismissing a bill brought by the present appellee against the appellants, to charge them as trustees in respect of lands held under a patent from the Unitéd States. The facts are stated in the opinion.

This was a writ of, error to review a judgment of the District Court of Appeal, California, affirming a judgment of the Superior Court of the City and County of San Francisco refusing injunctive relief sought by the present plaintiffs in error. The Supreme Court of California had denied an application for further review. The case is stated in the opinion.

Held: That the District Court had *274 jurisdiction to determine, in the first instance, whether petitioner had. appeared generally; and that it also had jurisdiction to determine (2) whether a cross-bill, subsequently filed by the defendant railroad company, seeking to avoid the bonds for petitioner’s alleged fraud in procuring their issuance and to hold petitioner liable on account of interest paid.and bonds negotiated…

Held: that the case was not one for *281 relief by injunction, and that the plaintiffs had a full and complete remedy in'an action at law for damages. P.286. .. . . 2.

Direct appeals, under Jud. Code, § 266, from orders granting interlocutory injunctions. The facts are stated in the opinion.

Gouled v. United States, 255 U.S. 298 (1921), was a United States Supreme Court case in which the court unanimously held that the government may not seize evidence by use of stealth or social trickery. The case expanded on Boyd v. United States to establish the now-defunct mere evidence rule, which stated that the government may not seize property solely useful as evidence.

<p>ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF SOUTH CAROLINA.</p> <p>The case is-stated in the opinion.</p>

-CERTIORARI TO THE SUPREME COURT OF THE ■ STATE OF NEW YORK. This case was submitted, in the .first instance, to the Supreme Court of New York, Appellate Division, and decided in favor of the defendant, the railroad company. The Court of Appeals of the State reversed the decision and directed the entry of the judgment for the plaintiff, which is here reviewed certiorari — and affirmed. The case is stated in the opinion.

Held: that the allegations excused the delay in bringing the suit, and that it was error to dismiss the bill by resorting to mere inferences and conjectures of notice, as by assuming that the deeds were promptly recorded (the bill not stating when), and by .assuming that the company’s possession was such as to give notice to the Government. P. 334. 254 Fed. Rep. 266 , reversed.

Writ of error to review directly a sentence in the District Court under an indictment charging interstate transportation of‘whisky in violation of the Reed Amendment.

Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356 (1921), was a United States Supreme Court case in which the court held that, for the purpose of determining diversity jurisdiction for a class action, only the class representative must be diverse from all of the defendants.

Held: that the proper injunctive relief, in the courts of the District of Columbia, Was to direct that the selection be disposed of in due course without regard to such elimination, rather than to forbid its cancelation or annulment. P. 373. 49 App. D. C. 80 ; 258 Fed. Rep. 980 , affirmed. The case is stated in the opinion.

Held: that' the Court of Claims should not have limited its findings.to what the claimants did, but should have found specifically on whether *375 the service was of benefit, and if so, what compensation was equitably and justly due on the principle of quantum meruit. • P. ,395. 7.

Held: that the United States, having secured a conviction a year later upon which a fine *399 was imposed, was entitled to pursue the assets by creditor’s bill against the stockholders to satisfy the judgment. P. 402. 3.

Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407 (1921), was a Supreme Court ruling that upheld the United States Postmaster General's power to revoke second-class mail privileges (the type of mail most newspapers and magazines qualify as) under the Espionage Act of 1917. The lawsuit was filed on behalf of the owners of the Milwaukee Leader, a socialist daily newspaper in Milwaukee, Wisconsin due to Postmaster General Albert S. Burleson's revocation of the Leader's second-class mailing privileges on the grounds of past anti-war articles it had published. The court ruled 7–2 in favor of the federal government, with Justice Clarke delivering the majority opinion while Justices Louis Brandeis and Oliver Wendell Holmes Jr. dissented.

<p>1. After the lapse of two years from the date of the issuance of a receiver's receipt upon.a final entry under the homestead law, if no contest or protest against the validity of the entry be then pending, the Land Department is required, by § 7 of the Act of March 3,1891, to issue a patent for the land. P. 442. Lane v. Hoglund, 244 U. S. 174.</p> <p>2. The purpose of this provision is to give the entryman, after the time limited, the advantage of the patent and legal title and thus transfer any later controversy over the validity of the entry from the department to the courts. P. 444.</p> <p>3. The duty to issue the patent is not suspended by the initiation after the two years have elapsed of proceedings in the department to cancel the entry and in the District Court to cancel the final certificate and receipt, upon the ground of fraud. P.444.</p>

Held: that insistence in this court that the statute violated that provision of the Constitution by' confining the' privilege to citizens of the State, was frivolous and- . would not support a.writ of error to review the judgment. P.' 449.. Writ of error tp review 192 Pac. Rep. 1021 , dismissed.

Held: that the decisions could have been reviewed upon a bill of' exceptions by writ of error. Id. Rule discharged; petition denied. Petition for a mandamus to require a district judge to correct the record in a criminal case. The facts are stated in the opinion. Mr. John London and Mr. Benjamin Carter for petitioner. The Solicitor General and Mr. Erie Pettus, with whom Mr. W. C. Herron was on the brief, for respondent.

<p>APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.</p> <p>Appeal from a decree of the Court of Appeals of the District of Columbia, which affirmed a decree of the Supreme Court of the District dismissing a bill brought by the present' appellants for the purpose of setting aside as unconstitutional certain orders of the Public Utilities Commission periiiitting the appellee gas company to increase its rates to private consumers while leaving them unchanged as to the Government and the District.</p>

Held: that the fact that the standing car lacked a draw bar and coupler on the end where the impact was did not render the railroad liable for the injury, even if their presence would have prevented it, since the purpose of the requirement of automatic couplers is to avoid risks in coupling and not to provide a place of safety between colliding cars. P. 459 227 N. Y. 507 , affirmed.

<p>Section 2347 of the Revised Statutes, in providing that public coal -lands may be entered upon payment of “not less than ” ten dollars per acre tod “not less than ” twenty dollars per acre, according to their distance from a completed railroad, sets up those prices as minima and by implication empowers the Secretary of the Interior to charge higher prices proportionate to the value of tracts sold. P. 469.</p>

Held: that the confirmation arid patent were conclusive, and that the Mexican map of the boundaries, which, with the other documents of the grant, was referred to in the decree of the District Court as defining it, was irrelevant. Pp.'487, 488. '5.

The case is stated in the opinion. Until approval by the Secretary of the Interior, no title, legal or equitable, vests in the State under a lieu or ex-, change selection application.

Held: (no earlier value being involved) that the gain after March 1, 1913, wás taxable as income, for the . year when the sale.was made, to the trustee as a “taxable person,” under the Income Tax Law of September 8, 1916, as amended by the Law'bf October 3,1917. p. 516. Cf. Goodrich v. Edwards, post, 527; Walsh v. Brewster, post, 536. 3.

Held: that the increase was taxable as income. P. 526. Merchants’ Loan & Trust Co. v. Smietanka, ante, 509. Affirmed. The case is stated in -the opinion.

Held: and the other the profit to be realized, through appreciation in value, upon the final disposition of the investment. The debates in Congress, when the Act of 1913 was under consideration, do not show an understanding that such gains as are now in question were not understood to be income.

Held: that there was no taxable income. • P. 537. Goodrich v. Edwards, ante, 527. 2. Bonds bought in 1902-1903 were sold in 1916 at an increase over the investment price and at a still larger increase over their market value on March 1, 1913. Held, that the gain over the investment was the income taxable. P. 538. Goodrich v. Edwards, ante, 527. 3.

<p>1. In the absence of a contract obligation, the grantee of a franchise to supply the public with electricity or gas cannot constitutionally be required by the State or its agencies to observe rates which; ini' effect, are confiscatory of its property. P. 541.</p> <p>2. The acceptance from a municipality of a franchise to supply the public with gas or electricity for a term of years at specified maximum' rates does not bind the grantee with a contractual obligation to. charge no more if the rates become in effect confiscatory, where the law of the State (Iowa Code of 1897, §§ 720,' 725) reposes in the municipality the continuing power to regulate such rates and, that the public may be protected, from improvident bargains, forbids any abridgment of the power by ordinance, resolution or contract. P. 542.</p>

Held: that an ordinance of the city of San Antonio which extended the rights, privileges and franchises of certain street railway companies and fixed the rate of fare, should not be construed and could not operate as a contract between them and the city binding them to that rate after it became unremunerative and in effect confiscatory. P. 555. 3.

<p>Error to the Court of Civil Appeals, First Supreme Judicial District, of the State of Texas.</p>

<p>Error to the Supreme Court of the State of Alabama.</p>

<p>Error to the Court of Civil Appeals, Fourth Supreme Judicial District, of the State of Texas.</p>

<p>Error to the Supreme Court of the State of Colorado.</p>

<p>Appeal from the District Court of the United States for the Western District of North Carolina.</p>

<p>Error to the District Court of the United States for the District of Idaho.</p>

<p>Error to the Supreme Court of the State of Oklahoma.</p>

<p>Error to the Supreme Court of Appeals of the State of Virginia.</p>

<p>Error to the Supreme Court of the State of Washington.</p>

<p>Error to the Supreme Court of the State of Oregon.</p>

<p>Appeal from the Circuit Court of Appeals for the Eighth Circuit.</p>

<p>Error to the Supreme Court of the State of Oklahoma.</p>

<p>Error to the Court of Appeals of the State of Kentucky.</p>

<p>Error to the Supreme Court of the State of Alabama.</p>

<p>Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit.</p>

<p>Error to the Supreme Court of the State of Mississippi.</p>

<p>Error to the Superior Court of the State of Massachusetts.</p>

<p>On a writ of certiorari to the Court of Civil Appeals for the Seventh Supreme Judicial District of the State of Texas.</p>

<p>Error to the Supreme Court of the State of Washington.</p>

<p>Appeal from and error to the Court of Appeals of the District of Columbia.</p>