Balt. & Ohio R.R. Co. v. United States, 261 U.S. 592 (1923)
Case details
Citation
261 U.S. 592
Full caption
BALTIMORE & OHIO RAILROAD COMPANY v. UNITED STATES.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
Apr. 9, 1923
BALTIMORE & OHIO RAILROAD COMPANY v. UNITED STATES.
APPEAL FROM THE COURT OF CLAIMS.
No. 305. Argued March 12, 1923.—Decided April 9, 1923.
1
The Dent Act, c. 94, 40 Stat. 1272, was intended to remedy irregularities and informalities in the mode of entering into the agreements to which it relates; not to enlarge the authority of the agents by whom they were made. P. 596.
2
The “ implied agreement ” contemplated by this act is not an agreement “implied in law,” or quasi contract, but an agreement “ implied in fact,” founded on a meeting of minds inferred, as a fact, from conduct of the parties in the light of surrounding circumstances. P. 597.
3. Findings of fact showing that the claimant railway company constructed temporary barracks for troops, who were guarding its property as well as that of the Government, and undertook this without any order from their commanding officer, but voluntarily and without mentioning compensation, apparently from its own desire to provide for the comfort of the troops—held an insufficient basis for implying an agreement that the Government would pay the cost of construction. P. 599. 57 Ct. Clms. 140, affirmed.
Appeal from a judgment of the Court of Claims dismissing the petition, after a hearing upon the merits, in an action to recover compensation under the Dent Act.
Mr. John F. McCarron, with whom Mr. George E. Hamilton was on the brief, for appellant.
Mr. Solicitor General Beck and Mr. Alfred A. Wheat, Special Assistant to the Attorney General, appeared for the United States.
Mr . Just ice Sanford delivered the opinion of the Court.
The Railway Company filed its petition, under the Dent Act (March 2, 1919, c. 94, 40 Stat. 1272), to recover compensation for constructing temporary barracks for the use of United States troops under an 11 implied agreement ” alleged to have been entered into by it with the United States, in December, 1917, through Col. Kimball, Expeditionary Quartermaster of the War Department, at Locust Point, Baltimore, Maryland, acting under the authority of the Secretary of War. The Court of Claims, after a hearing on the merits, and upon its findings of fact, dismissed the petition. 57 Ct. Clms. 140.
The material facts shown by the findings are these: The Railroad Company owned at Locust Point, a suburb of Baltimore, eight piers, which were guarded by its civilian employees. At the request of Col. Kimball, who was
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in charge of the expeditionary depot at Baltimore and of the supplies arriving for shipment to Europe, the company, in October, 1917, leased one of these piers to the Government. Two of the other piers with much other property belonging to the company were destroyed or damaged by a fire supposed to be of incendiary origin. Thereupon Col. Kimball and the president of the company separately requested the Secretary of War to send a guard; the vice president of the company offering to supply a wrecking train as quarters for them. Two companies of the National Guard were sent to Locust Point, with sufficient tentage. They were quartered for a time in the wrecking train furnished by the company. Their duty was primarily to protect the government property and the piers leased by it, sending patrols throughout the railroad yard to guard cars containing its property, and generally to guard all the piers and property at Locust Point. The company, however, also maintained the civilian guards and a fire department for all of its property, whether leased or not. Later, the wrecking train having been moved away by the company, the troops moved into tents. The weather during the fall and winter was very cold and inclement. Most of the soldiers were Baltimoreans and were frequently visited by their relatives. There was some sickness among them. Their relatives complained to the railroad officials of the hardships they had to undergo in the tents; and these officials were anxious to make them as comfortable as possible. Several times in very cold weather Col. Kimball remarked to the company’s agent at Locust Point, whose duty it was to confer with him on railroad matters, that the troops ought to have better quarters. On one occasion this agent suggested fitting up an unused transfer shed belonging to the company, standing near the pier that had been leased to the Government. Col. Kimball agreed that it would be a fine thing to make the men as p. 595comfortable as possible. He did not, however, ask that this work be done; and nothing was said about compensation. This agent having taken up with the company’s officials the matter of fitting up the transfer shed, its chief engineering draftsman was directed to see as to the adaptability of the transfer shed for barracks. He made blue print plans for remodeling the shed; which he showed to the officer in command of the troops, to learn whether, in his opinion, they would satisfactorily house the troops. This officer, while not undertaking to approve the plans, suggested the amount of facilities that would be required. Nothing was said to him, however, about expense or compensation for the work. The construction of the temporary barracks was completed in the latter part of December; and the troops moved in. Two more piers were afterwards leased by the company to the Government. The barracks were occupied by the troops until May, 1919; and the piers were returned to the company in June, 1919. No government officials connected with the work at Locust Point had any authority to order the construction of the temporary barracks; and no orders were given by any of them for such construction. The subject of compensation was not mentioned in any conversations between these officers and the railroad officials until more than a week after the barracks had been completed, when the chief draftsman told the officer in command of the troops that he thought the Government should reimburse him for some of his trouble.
The Court of Claims made no finding as to the amount expended by the company in constructing the temporary barracks; the company having, as the court stated, submitted no evidence to establish the different items of its claim. In the absence of a finding as to the amount of the expenditures, as to which the company had the burden of proof, the judgment of the Court of Claims might be properly affirmed upon that ground. Crocker v. United p. 596States, 240 U. S. 74, 82. However, as the Government does not here question the amount of the claim, we pass to its further consideration upon the merits.
Upon the findings of fact we conclude that the petition was rightly dismissed, without reference to the amount of the claim, for two reasons:
1. The Dent Act authorizes the award of compensation for expenditures connected with the prosecution of the war when they were made by the claimant upon the faith of an “ agreement, express or implied,” entered into by him with an officer or agent acting under the authority of the Secretary of War or of the President, and such agreement was not executed in the manner provided by law. 40 Stat. 1272, 1273; American Smelting & Refining Co. v. United States, 259 U. S. 75, 79. The act was intended to remedy irregularities and informalities in the mode of entering into such agreements; not to enlarge the authority of the agents by whom they were made. To entitle the claimant to compensation under such an agreement it is essential that the officer or agent with whom it was entered into should not merely have been holding under the Secretary of War or the President, but that he should have been acting within the scope of his authority. It was not intended, for example, that an officer in one branch of the military service or one of inferior rank could bind the Government by an agreement as to matters relating to an entirely different branch of the service or within the control of his superior officers, as to which he had no authority whatever; or that an agreement into which he entered, although beyond his authority, should become binding upon the Government because it was made in the form of an express agreement not executed within the legal manner or of an implied agreement merely—that is, that his authority should be enlarged by the irregularity or informality with which it was exercised. See United States v. North American Transportation & p. 597Trading Co., 253 U. S. 330, 333; and Portsmouth Harbor Land & Hotel Co. v. United States, 260 U. S. 327.
Here, however, there is no finding that Col. Kimball had any authority to enter into the alleged agreement; and, on the contrary, such authority is negatived by the finding that none of the government officials connected with the work at Locust Point had any authority to order the construction of a temporary barracks.
Hence an essential element in the establishment of the company’s claim is lacking.
2. The “ implied agreement ” contemplated by the Dent Act as the basis of compensation, is not an agreement “ implied in law,” more aptly termed a constructive or quasi contract, where, by fiction of law, a promise is imputed to perform a legal duty, as to repay money obtained by fraud or duress, but an agreement “ implied in fact,” founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding. See, by analogy, as to the construction of similar jurisdictional statutes, United States n . Berdan Fire-Arms Mjg. Co., 156 U. S. 552, 566; Russell v. United States, 182 U. S. 516, 530; Harley v. United States, 198 U. S. 229, 234; United States n . Anciens Etablissements, 224 U. S. 309, 311,320; United States v. Buffalo Pitts Co., 234 U. S. 228, 232; Tempel v. United States, 248 U. S. 121, 129; and Sutton v. United States, 256 U. S. 575, 581; and, generally, Railway Co. v. Gaffney, 65 Ohio St. 104, 113; Woods v. Ayres, 39 Mich. 345, 350; Hertzog v. Hertzog, 29 Pa. St. 465, 468; Knapp v. United States, 46 Ct. Clms. 601, 643; and 1 Bouv. Diet. (Rawle’s 3d Rev.) 660. That this provision of the Dent Act relates only to such actual agreements, implied in fact from the circumstances, is not only indicated by its purpose, as expressed in the caption, of providing relief in cases of “ contracts ” connected p. 598with the prosecution of the war, but is conclusively shown by the fact that the “ agreement ” is described as one “ entered into, in good faith,” by the claimant, with an officer or agent of the Government, upon the faith of which expenditures have been made or obligations incurred, and which has not been executed as prescribed by law; this language aptly describing an actual agreement implied in fact, but being manifestly inapplicable to a constructive agreement implied in law.
Such an agreement will not be implied unless the meeting of minds was indicated by some intelligible conduct, act or sign. Woods v. Ayres, supra, p. 351; and cases there cited. And so an agreement to pay for services rendered by the plaintiff will not be implied when they were rendered spontaneously, without request, as an act of kindness (Woods v. Ayres, supra, p. 351); when the plaintiff did not expect payment, or under the circumstances did not have reason to entertain such expectation (Coleman n . United States, 152 U. S. 96, 99; Lajontain n . Hayhurst, 89 Maine, 388, 391); when the defendant understood that the plaintiff would neither expect nor demand remuneration (Harley v. United States, supra, p. 235); when unusual expenses were incurred, without special request or previous notice, and without any intimation or suggestion that compensation would be looked for or made (Baltimore & Ohio R. R. Co. n . United States, ante, 385); when the defendant neither requested the services nor assented to receiving their benefit under circumstances negativing any presumption that they would be gratuitous (Railway Co. v. Gaffney, supra, p. 116; 2 Abb. Tr. Ev., 3d ed., 912, and cases there cited);1 and
aBut an agreement to compensate the plaintiff for the use of his property will be implied when it was used by the defendant without claim of right, and the plaintiff consented to such use with the expectation of receiving compensation. United States v. Palmer, 128 U. S. 262, 269; United States v. Berdan Fire-Arms Mfg. Co., 156 p. 599when the circumstances account for the transaction on a ground more probable than that of a promise of recompense {Woods v. Ayres, supra, p. 351.)2
In the present case the findings of fact show that Col. Kimball did not order the construction of the barracks; which was voluntarily undertaken by the company, without saying anything whatever about compensation, apparently from its own desire to provide for the comfort of the troops, who were guarding its property as well as that of the Government, after it had removed the wrecking train which it had offered to supply as their quarters. It does not appear from the findings that Col. Kimball requested the construction of the barracks; that the company intimated that it would expect payment from the Government or that Col. Kimball suggested that such payment would be made; or that the company in fact expected compensation. It is clear that these findings furnish no substantial basis for implying an agreement that the Government would pay the cost of the construction.
Hence, a second essential element in the establishment of the company’s claim is lacking.
And the judgment of the Court of Claims is
Affirmed.
U. S. 552, 567; United States v. Anciens Etablissements, supra, p. 320. And see, as to the implied agreement to pay for property appropriated by legislative authority for a public use, without condemnation proceedings, United States v. North American Transportation & Trading Co., 253 U. S. 330, and cases there cited.
2 As to the character of evidence by which an implied agreement to pay for services is generally established, see 2 Abb. Tr. Ev. 913, and cases there cited.
HODGES ET AL. v. SNYDER ET AL., AS MEMBERS
OF THE BOARD OF EDUCATION OF THE ERWIN INDEPENDENT CONSOLIDATED SCHOOL DISTRICT NO. 1, OF KINGSBURY COUNTY, SOUTH DAKOTA, ET AL.
ERROR TO THE CIRCUIT COURT OF KINGSBURY COUNTY, NINTH JUDICIAL CIRCUIT OF THE STATE OF SOUTH DAKOTA. No. 432. Motion to dismiss or affirm submitted February 26, 1923.—Decided April 9, 1923.
1. Where, under the local practice, the original papers sent to the State Supreme Court as the record on appeal are remitted by that court with copies of its judgment and opinion to a lower court, without retaining a copy of such record, a writ of error from this Court to review the judgment of the State Supreme Court is properly directed to the lower court in which the record then is found. P. 601.
2. The right of a taxpayer in a decree enjoining the maintenance of an illegal school district and issuance of bonds therefor, is not private but public in character; and its loss through an act of the legislature validating the district but not affecting his right to costs, does not deprive him of property without due process of law. P. 601.
45 S. Dak. 149, affirmed.
Error to review a judgment of the Supreme Court of South Dakota reversing, except as to costs, a decree of the State Circuit Court (to which the record was remitted), which permanently enjoined the defendants in error from maintaining a consolidated school district and issuing bonds therefor.
Mr. Samuel Herrick, Mr. Philo Hall and Mr. Wallace E. Purdy for plaintiffs in error.
Mr. T. H. Null and Mr. Max Royhl for defendants in error.
Mr . Justi ce Sanford delivered the opinion of the Court. The defendants in error move to dismiss the writ of error or affirm the judgment.
1. The ground of the motion to dismiss is that there is want of jurisdiction because the writ is not directed to the Supreme Court of the State. It was sued out to review a final judgment of that court reversing, on appeal, an order of the Circuit Court, and remanding the cause with direction to vacate the same. Under the local practice the original papers that had been transmitted to the Supreme Court as the record on the appeal, were remitted to the Circuit Court, with copies of the judgment and opinion of the Supreme Court (Rev. Code, S. Dak., 1919, § 3170); no copy of such record being retained by the Supreme Court. The rule of practice has been long established that in such case, in order to bring up the record which is essential to a review of the judgment of the appellate court, the writ of error is properly directed to the lower court in which the record is then found. Gelston v. Hoyt, 3 Wheat. 246, 304, 335; McGuire v. Commonwealth, 3 Wall. 382, 386; Atherton v. Fowler, 91 U. S. 143, 148; Polleys v. Black River Co., 113 U. S. 81, 82; McDonald n . Massachusetts, 180 U. S. 311, 312; Sioux Remedy Co. n . Cope, 235 U. S. 197, 200 (involving a similar writ of error to another circuit court of South Dakota); and other cases therein cited. Hence the motion to dismiss is denied.
2. The ground of the alternative motion to affirm the judgment of the Supreme Court is that the writ was taken for delay only and presents no substantial question for review. It should be granted if the questions on which the decision depends are so wanting in substance as not to need further argument. Rule 6, § 5; Missouri Pacific Ry. Co. v. Castle, 224 U. S. 541, 544; Chicago, Rock Island & Pacific Ry. Co. v. Devine, 239 U. S. 52, 54; City of Boston v. Jackson, 260 U. S. 309.
A single question is presented, which arises as follows: The plaintiffs in error, as resident taxpayers, filed a complaint in the Circuit Court challenging the validity of a consolidated school district which had been organized by p. 602the merger of several smaller districts, and praying that the defendants in error, as its officers, be enjoined from further maintaining schools or erecting school buildings therein, or issuing bonds thereof. The Supreme Court, on an appeal from the Circuit Court, held that the attempted organization of the consolidated district “ was not authorized by any law then in force . . . and was wholly futile” (43 S. Dak. 166, 176), and entered judgment remanding the cause for further proceedings in accordance with its decision. The legislature thereupon passed a curative act legalizing and validating all proceedings relating to the organization of any consolidated school district attempted to be made as this had been, as of the date when such district was organized. Laws S. Dak., Spec. Sess., 1920, c. 47. Before this curative act went into effect the Circuit Court, in accordance with the decision of the Supreme Court, entered judgment adjudging the invalidity of the consolidation, permanently enjoining the defendants from conducting the consolidated district, as prayed in the complaint, and awarding costs to the plaintiffs. At a later day of the term, after the curative act had gone into effect, a motion by the defendants to set aside this injunction was denied. Thereafter, on a second appeal, the Supreme Court held that the curative act had validated the defective organization of the consolidated district (45 S. Dak. 149), and entered the judgment now sought to be reviewed, reversing the order of the Circuit Court granting the permanent injunction and remanding the cause with direction to vacate so much of its judgment as awarded such injunction; but not reversing its judgment as to costs.
The plaintiffs in error concede that the legislature, in the general exercise of its inherent power to create and alter the boundaries of school districts, may create new districts by the consolidation of others. Stephens v. Jones, 24 S. Dak. 97, 100. And they likewise recognize that, since the legislature had the power to ratify that p. 603which it might have originally authorized, there would have been no violation of due process if the curative act had been enacted and become effective before any adjudication had been made in the pending litigation as to the invalidity of the consolidated district. United States v. Heinszen & Co., 206 U. S. 370, 386; Rafferty n . Smith, Bell & Co., 257 U. S. 226, 232; Charlotte Harbor & Northern Ry. Co. n . Welles, 260 U. S. 8. And see, generally as to giving effect to acts passed pendente lite but before the hearing, Stockdale v. Insurance Companies, 20 Wall. 323, 331; Mills v. Green, 159 U. S. 651, 656; and Duplex Printing Press Co. v. Deering, 254 U. S. 443, 464.
Their sole contention is that as the curative act was not enacted until after the Supreme Court had decided, on the first appeal, the consolidated district was invalid, and did not go into effect until after the Circuit Court had entered judgment adjudging its invalidity and enjoining the defendants from further conducting its affairs, it deprived them, as applied by the Supreme Court, without due process, of the private property rights which had been vested in them under these adjudications.
It is true that, as they contend, the private rights of parties which have been vested by the judgment of a court cannot be taken away by subsequent legislation, but must be thereafter enforced by the court regardless of such legislation. Pennsylvania n . Wheeling Bridge Co., 18 How. 421, 429; The Clinton Bridge, 10 Wall. 454, 463; United States v. Klein, 13 Wall. 128, 146; McCullough v. Virginia, 172 U. S. 102, 124 (in which the repealing act was passed after judgment by the trial court).
This rule, however, as held in the Wheeling Bridge Case, does not apply to a suit brought for the enforcement of a public right, which, even after it has been established by the judgment of the court, may be annulled by subsequent legislation and should not be thereafter enforced; although, in so far as a private right has been incidentally p. 604established by such judgment, as for special damages to the plaintiff or for his costs, it may not be thus taken away. Pennsylvania v. Wheeling Bridge Co., supra, pp. 431, 439. This case has been cited with approval in The Clinton Bridge, supra, p. 463 (likewise involving a public, as distinguished from a private, right of action), United States v. Klein, supra, p. 146, Stockdale v. Insurance Companies, supra, p. 332, and Mills v. Green, supra, p. 655. And so a judgment for the restitution of taxes collected under the ostensible authority of a general statute will be reversed when, after the rendition of such judgment, a statute has been passed legalizing and ratifying such taxation. Rafferty v. Smith, Bell & Co., supra, p. 232.
In the Wheeling Bridge Case, as in the Clinton Bridge Case, the public right involved was that of abating an obstruction to the navigation of a river. The right involved in the present suit, of enjoining the maintenance of an illegal school district and the issuance of its bonds, is likewise a public right shared by the plaintiffs with all other resident taxpayers. And while in the Wheeling Bridge Case the bill was filed by the State, although partly in its proprietary capacity as the owner of certain, canals and railways (9 How. 647, 648), the doctrine that a judgment declaring a public right may be annulled by subsequent legislation, applies with like force in the present suit, although brought by individuals primarily for their own benefit; the right involved and adjudged, in the one case as in the other, being public, and not private.
The judgment of the Supreme Court in this case affected merely the public right involved—the plaintiffs’ judgment for costs not being impaired,—and was clearly in accordance with the doctrine of the Wheeling Bridge Case. And since the question does not require further argument, the alternative motion of the defendants in error is granted, and the judgment is
Affirmed. p. 605261 U. S. Decisions Per Curiam, Etc.
DECISIONS PER CURIAM, FROM JANUARY 30, 1923, TO AND INCLUDING APRIL 9, 1923, NOT INCLUDING ACTION ON PETITIONS FOR WRITS OF CERTIORARI.
No. —. Sergius Apos tolof f , Appe llant , v . Conrad Hubert et al . Submitted February 20, 1923. Decided February 26, 1923. Motion to docket this cause, and for leave to proceed in forma pauperis, denied. Mr. Henry E. Davis for appellant.
No. —, Original. Ex parte: In the Matter of Franc e & Canada Steams hip Corporation , Petitioner . Submitted February 20, 1923. Decided February 26, 1923. Motion for leave to file petition for a writ of mandamus herein denied. Mr. J. Culbert Palmer and Mr. Carroll G. Walter for petitioner.
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No. 749. Central Coal & Coke Comp any v . Jacob Ocepek . Certiorari to the Supreme Court of the State of Arkansas. Submitted February 20, 1923. Decided
Decisions Per Curiam, Etc. 261 U. 8.
February 26, 1923. Per Curiam. Reversed with costs, upon the authority of Baltimore & Ohio R. R. Co. v. Koontz, 104 U. S. 5, 15; General Investment Co. v. Lake Shore & Michigan Southern Ry. Co., 260 U. S. 261; Lee v. Chesapeake & Ohio Ry. Co., 260 U. S. 653. Mr. L. C. Boyle for petitioner. No brief filed for respondent.
No. 18, Original. State of Oklaho ma v . State of Texas . Leave to file stipulation and petition in intervention submitted February 26, 1923. Order entered March 5, 1923. It is ordered that the petition in intervention of John Tah Hah et al. be filed in accordance with the stipulation that the evidence introduced in said cause by any of the parties shall be taken as evidence as to these interveners, and that the rights of said interveners may be determined by the decree to be rendered herein. Mr. Henry E. Asp for interveners. Mr. W. W. Dyar, Special Assistant to the Attorney General, for the United States.
No. 716. American Trust Comp any v . S. S. Mc Ninch et al . Error to the Supreme Court of the State of North Carolina. Motion to dismiss or affirm submitted February 20, 1923. Decided March 5, 1923. Per Curiam. Dismissed for want of jurisdiction upon the authority of: (1) Thomas v. Iowa, 209 U. S. 258, 263; Consolidated Turnpike Co. v. Norfolk, etc., Ry. Co., 228 U. S. 326, 331, 333; Bowe v. Scott, 233 U. S. 658, 664-665; (2) McCorquodale v. Texas, 211 U. S. 432, 437; St. Louis & San Francisco R. R. Co. v. Shepherd, 240 U. S. 240, 241; Mergenthaler Linotype Co. v. Davis, 251 U. S. 256, 258-259; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 6-7. Mr. John M. Robinson for plaintiff in error. Mr. William P. Bynum, Mr. W. Cleveland Davis and Mr. John J. Parker for defendants in error. [See post, 618.] p. 607261 U.S. Decisions Per Curiam, Etc.
No. 498. James K. Cochran et al . v . Coulton M. Becker . Error to the Circuit Court of Appeals for the Eighth Circuit. Motion to dismiss or affirm submitted February 26, 1923. Decided March 5, 1923. Per Curiam. Dismissed for want of jurisdiction, upon authority of § 6, Act of September 6, 1916, c. 448, 39 Stat. 726, 727. Mr. Harris Kobey, pro se. Mr. Oliver J. Miller for defendant in error.
No. 130. Harriet Stocker et al . v . Nemaha Valley Drainage Dis trict No . 2. Error to the Supreme Court of the State of Nebraska. Submitted February 28, 1923. Decided March 5, 1923. Per Curiam. Dismissed for want of jurisdiction upon the authority of Spencer v. Duplan Silk Co., 191 U. S. 526, 530; Shulthis v. Mc-Dougal, 225 U. S. 561, 569; Hull v. Burr, 234 U. S. 712, 720; Norton v. Whiteside, 239 U. S. 144, 147. Mr. Halleck F. Rose, Mr. George N. Foster and Mr. T. R. P. Stocker for plaintiffs in error. Mr. Fred A. Wright for defendant in error.
No. 653. Puget Sound Power & Light Compa ny et al . v. County of King et al . Error to the Supreme Court of the State of Washington. Submitted February 26, 1923. Order entered March 5, 1923. Motion to reinstate this cause on the docket granted. Mr. James B. Howe, Mr. Walter F. Meier, Mr. Thomas J. L. Kennedy and Mr. F. D. McKenney for plaintiffs in error. Mr. Howard A. Hanson and Mr. Malcolm Douglas for defendants in error. [See post, 626.]
No. 314. Brasher Lumber Company , for the Use of Itsel f , et al . v . Southern Railway Company . Appeal from the District Court of the United States for the Southern District of Alabama. Submitted March 9, 1923.
Decisions Per Curiam, Etc. 261 U. S.
Decided March 12,1923. Per Curiam. Affirmed upon the authority of Baltimore & Ohio R. R. Co. v. Koontz, 104 U. S. 5, 15; General Investment Co. v. Lake Shore & Michigan Southern Ry. Co., 260 U. S. 261; Lee n . Chesapeake & Ohio Ry. Co., 260 U. S. 653. Mr. T. M. Stevens and Mr. Edgar Watkins for appellants. Mr. Gregory L. Smith for appellee.
No. 522. Jay Burns Baking Company et al . v . Samue l R. Mc Kelvie , as Governor of the State of Ne - bras ka , et al . Error to the Supreme Court of the State of Nebraska. Submitted March 12, 1923. Order entered March 19, 1923. Motion to reinstate cause on the docket granted, but a rule is ordered to issue to show cause why the case should not be dismissed for lack of statutory authority to substitute the new governor for the ex-govemor, in view of Irwin n . Wright, 258 U. S. 219, and United States ex rel. Bernardin n . Butterworth, 169 U. S. 600. Mr. Matthew A. Hall and Mr. Carroll S. Montgomery for plaintiffs in error. No appearance for defendants in error. [See post, 625.]
No. 313. J. M. Mac Donald Coal Mining Company v. United States . Appeal from the Court of Claims. Argued March 12, 1923. Decided March 19, 1923. Per Curiam. Affirmed upon the authority of Morrisdale Coal Co. n . United States, 259 U. S. 188. Mr. William S. Hammers, for appellant, submitted. Mr. Assistant Attorney General Riter, with whom Mr. Solicitor General Beck was on the brief, for the United States.
No. 326. Jewel Redwi ne v . State of Texas . Error to the Court of Criminal Appeals of the State of Texas. Submitted March 15, 1923. Decided March 19, 1923. Per Curiam. Affirmed with costs upon the authority of p. 609261 U. S. Decisions Per Curiam, Etc.
Ughbanks v. Armstrong, 208 U. S. 481. Mr. Joe Burkett and Mr. A. H. Carrigan for plaintiff in error. Mr. W. A. Keeling and Mr. L. C. Sutton for defendant in error.
No. 327. Virginia Huey et al . v . D. A. Brock et al . Error to the Supreme Court of the State of Alabama. Argued March 15, 16, 1923. Decided March 19, 1923. Per Curiam. Dismissed for want of jurisdiction upon the authority of § 237 of the Judicial Code, as amended by the Act of September 6, 1916, c. 448, § 2, 39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5-6. Mr. George H. Lamar, with whom Mr. Theodore J. Lamar was on the brief, for plaintiffs in error. No appearance for defendants in error.
No. 756. Southern Railw ay Compa ny v . A. D. Watts , Individuall y , etc ., et al .;
No. 724. Atlantic Coast Line Rail road Compa ny v . A. D. Watts , Commi ss ioner of Reve nue , etc ., et al .;
No. 744. Seaboard Air Line Railw ay Compa ny v . A. D. Watts , Individually , etc ., et al . ; and
No. 727. Norfolk Southern Railroad Company v . A. D. Watts , Commi ss ioner of Reve nue , etc ., et al . Appeals from the District Court of the United States for the Eastern District of North Carolina. Motion for substitution submitted March 19, 1923. Order entered April 9, 1923. Per Curiam. The motion to substitute the new Commissioner of Revenue, R. A. Daughton, for the ex-Commissioner of Revenue, A. D. Watts, is granted, on the ground that such substitution is authorized by § 461, Consol. Stats. N. Car. 1919, as construed by the Supreme Court of North Carolina in Davenport n . McKee, 98 N. Car. 500. Mr. S. R. Prince, Mr. Thomas W. Davis, Mr. James F. Wright, Mr. Murray Allen and Mr. W. B. Rodman, for appellants, in support of the motion.
50947°—23------ 39
Certiorari Granted. 261 U.S.
No. 121. Unite d States v . Mason & Hanger Com - pany ; and
No. 122. United Stat es v . Northeastern Construc - tion Comp any . Appeals from the Court of Claims. Reargued March 2, 5, 1923. Decided April 9, 1923. Per Curiam. Upon rehearing, the former opinions, as well as the judgments heretofore rendered, are affirmed. Mr. Ralph E. Moody, Special Assistant to the Attorney General, with whom Mr. Solicitor General Beck was on the brief, for the United States. Mr. George A. King, Mr. William B. King and Mr. George R. Shields, for appellees, submitted. [For the former opinions, see 260 U. S. 323, 326.]
PETITIONS FOR CERTIORARI GRANTED, FROM JANUARY 30, 1923, TO AND INCLUDING APRIL 9, 1923.
No. 820. Great Northern Railw ay Company v . Mc Caull -Dinsmo re Company . February 26, 1923. Petition for a writ of certiorari to the Supreme Court of the State of Minnesota granted. Mr. F. G. Dorety and Mr. Reuben J. Hagman for petitioner. Mr. Frederick M. Miner for respondent.
No. 823. Farmer s and Merchants Bank of Monroe , North Carolina , et al . v . Federal Rese rve Bank of Richmond , Virgin ia . February 26, 1923. Petition for a writ of certiorari to the Supreme Court of the State of North Carolina granted. Mr. Alex W. Smith and Mr. John J. Parker for petitioners. Mr. M. G. Wallace, Mr. H. W. Anderson and Mr. H. G. Connor, Jr., for respondent.
261 U.S. Certiorari Granted.
No. 846. Harry T. Graha m , Individually , etc ., v . Alfre d I. Du Pont . February 26, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Mr. Solicitor General Beck for petitioner. Mr. Wm. A. Glasgow, Jr., and Mr. Henry P. Brown for respondent.
No. 731. Sperr y Oil & Gas Company et al . v . Pearl Chisho lm et al . Appeal from the Circuit Court of Appeals for the Eighth Circuit. March 5, 1923. Petition for a writ of certiorari herein granted. Mr. Preston C. West and Mr. Alvin Richards, for appellants, in support .of the petition. Mr. J. Howard Langley for appellees.
No. 827. Edwa rd A. Thurston , Sole Survivi ng Trus - tee , etc ., v. Benjami n Brown et al . March 5, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the First Circuit granted. Mr. William R. Sears for petitioner. No appearance for respondents.
No. 835. Josep h * Phip ps et al . v . Chicago , Rock Islan d & Pacific Railway Company . March 5, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit granted. Mr. John G. Parkinson for petitioners. Mr. W. F. Dickinson, Mr. John E. Dolman and Mr. M. L. Bell for respondent.
No. 855. Commi ss ioner of Immi gration of the Port of New York v . Gittel Gottlieb et al . March 5, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Mr. Solicitor General Beck, Mr. Assistant Attorney General Crim and Mr, H, S. Ridgely for petitioner. Mr. Joseph G. M.
Certiorari Denied. 261U. S.
Browne, Mr. Barnett E. Kopelman and Mr. J. Philip Berg for respondents.
No. 889. Liberty National Bank of Roanok e , Vir - gini a , v. James A. Bear , Trustee , etc . March 19, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit granted. Mr. James D. Johnston for petitioner. Mr. G. A. Wingfield for respondent.
No. 877. Atchison , Topeka & Santa Fe Railw ay Company v . Edmund R. Wells et al . April 9, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit granted. Mr. Alexander Britton, Mr. A. H. Culwell, Mr. J. W. Terry and Mr. Gardiner Lathrop for petitioner. Mr. George E. Wallace for respondents.
No. 897. Nas sa u Smelting & Refinin g Works v . Bright woo d Bronze Found ry Comp any . April 9, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the First Circuit granted. Mr. Joseph B. Jacobs for petitioner. Mr. Harry M. Ehrlich and Mr. Henry Lasker for respondent.
PETITIONS FOR CERTIORARI DENIED OR DISMISSED, FROM JANUARY 30, 1923, TO AND INCLUDING APRIL 9, 1923.
No. 751. Emanuel Wallin v . Rose Everett . February 19, 1923. Petition for a writ of certiorari to the Supreme Court of the State of Minnesota denied. Mr. Halvor Steenerson and Mr. Charles R. Fowler for petitioner. Mr. Marshall A. Spooner and Mr. Patrick H. Loughran for respondent.
No. 762. C. Dale Wolf e , Trustee , etc . v . G. F. Kil - lingsw orth et al . February 19, 1923. Petition for a writ of certiorari to the Supreme Court of the State of Oklahoma denied. Mr. C. Dale Wolfe for petitioner. No appearance for respondents.
No. 789. J. C. Turner Lumbe r Comp any et al . v . Wilson & Bennett etal . February 19, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Samuel Silbiger for petitioners. Mr. Max Isaac for respondents.
No. 797. Clost er National Bank v . Federal Reserve Bank of New York . February 19, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Edmund W. Wakelee for petitioner. Mr. L. R. Mason for respondent.
No. 806. Centra l Railroad Company of New Jers ey v. Anita Peluso , Adminis tratrix , etc . February 19, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Charles E. Miller for petitioner. Mr. Sidney A. Syme for respondent.
No. 808. L. E. Smith Glass Compa ny v . Macbeth - Evans Glass Company . February 19, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. William 0. Belt and Mr. Arthur 0. Fording for petitioner. Mr. Frederick W. Winter and Mr. Edward Rector for respondent.
No. 817. American Railw ay Express Comp any et al . v. M. F. Brabh am . February 19, 1923. Petition for a writ of certiorari to the Supreme Court of the State of South Carolina denied. Mr. Charles W. Stockton and Mr. K. E. Stockton for petitioners. No appearance for respondent.
No. 818. Robert J. Mc Bride v . Unit ed States . February 19, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Harry T. Smith and Mr. Joseph M. McAleer for petitioner. Mr. Aubrey Boyles for the United States.
No. 781. Taubel -Scott -Kitzmiller Company , Inc ., v. David J. Fox et al ., Trustees , etc . Certiorari to the Circuit Court of Appeals for the Second Circuit. February 26, 1923. Ordered that the motions to vacate the writ of certiorari granted herein or to advance this cause be, and they are hereby, denied. Mr. Frank J. Hogan and Mr. Herman Goldman for petitioner. Mr. Irving L. Ernst for respondents. [See 260 U. S. 719.]
No. 738. Wagner Electric Manufacturing Company v. Lamar Lyndon et al . Appeal from the Circuit Court of Appeals for the Eighth Circuit. February 26, 1923. Petition for a writ of certiorari herein denied. Mr. Charles A. Houts, for appellant, in support of the petition. Mr. Lawrence C. Kingsland and Mr. John D. Rippey for appellees.
No. 776. Sophia Charl es et al ., etc ., v . Roxana Pe - trol eum Corpora tion . February 26,1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the p. 615Eighth Circuit denied. Mr. Robert F. Blair and Mr. George 8. Ramsey for petitioners. No appearance for respondent.
No. 798. J. E. Barrack et al . v . Town of Fairb anks , Alaska . February 26, 1923; Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. John E. Alexander for petitioners. Mr. Alfred Sutro, Mr. E. S. Pillsbury, Mr. Frank D. Madison, Mr. H. D. Pillsbury and Mr. Oscar Sutro for respondent.
No. 803. Robert Dollar Comp any v . American Asi - atic Company . February 26, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Ira S. Lillick and Mr. Farnham P. Griffiths for petitioner. Mr. R. M. Fitzgerald for respondent.
No. 807. E. I. Horsm an et al ., etc . v . Alfre d A. Kaufm an et al . February 26, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. 0. Ellery Edwards for petitioners. No appearance for respondents.
No. 811. Franc e and Canada Steamshi p Corporat ion v. French Republ ic . February 26, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Carroll G. Walter and Mr. J. Culbert Palmer for petitioner. Mr. W. H. McGrann for respondent.
No. 812. W. Everet t et al . v . United State s et al . February 26, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. p. 616Mr. William H. Gorham and Mr. James Kiefer for petitioners. Mr. Solicitor General Beck, Mr. Assistant Attorney General Ottinger and Mr. J. Frank Staley for respondents.
No. 813. Director General of Railroads v . Thoma s Keenan . February 26, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Daniel M. Beach for petitioner. Mr. Joseph A. Wechter for respondent.
No. 822. Benjami n Kalmans on v . Unite d Stat es . February 26, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Max D. Steuer for petitioner. Mr. Solicitor General Beck, Mr. Assistant Attorney General Crim and Mr. H. S. Ridgely for the United States.
No. 828. Frank N. Snell et al . v . J. C. Turner Lum - ber Comp any . February 26, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Frederick Seymour and Mr. William M. Toomer for petitioners. Mr. Samuel SUbiger for respondent.
No. 831. Standard Oil Comp any of New York v . Clyde Steamshi p Comp any . February 26, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Rufus S. Day and Mr. P. M. Brown for petitioner. Mr. Chauncey I. Clark for respondent.
No. 834. Aluminum Comp any of America v . Federal Trade Commiss ion . February 26, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the p. 617Third Circuit denied. Mr. George W. Wickersham and Mr. George B. Gordon for petitioner. Mr. Solicitor General Beck and Mr. W. H. Fuller for respondent.
No. 836. Lottie I. Kern , Adminis tratri x , etc ., v . John Barton Payne , Direct or General , etc . February 26, 1923. Petition for a writ of certiorari to the Supreme Court of the State of Montana denied. Mr. Frederick M. Miner for petitioner. Mr. H. H. Field for respondent.
No. 838. Timoth y D. Murphy v . Unite d States ;
No. 839. Vincenz o Cosmano v . Unite d States ; and No. 840. Edwa rd C. Gierum v . Unite d States . February 26, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. James J. Barbour, Mr. Benjamin P. Epstein, Mr. Lawrence Y. Sherman and Mr. Noah C. Bainum for petitioners. Mr. Solicitor General Beck, Mr. Assistant Attorney General Crim and Mr. H. S. Ridgely for the United States.
No. 847. Utah Cons olida ted Minin g Compa ny v . Utah Apex Minin g Company . February 26, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. John P. Gray and Mr. A. C. EUis, Jr., for petitioner. Mr. J. A. Marshall and Mr. W. E. Colby for respondent.
No. 848. W. V. Smith et al . v . Unite d States . February 26, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. John H. Atwood, Mr. James M. Johnson and Mr. Donald W. Johnson for petitioners. No brief filed for the United States.
No. 850. National Bank of Commerce of St . Louis v. David R. Francis et al . February 26, 1923. Petition for a writ of certiorari to the Supreme Court of the State of Missouri denied. Mr. George L. Edwards, Jr., and Mr. Edward J. White for petitioner. Mr. P. Taylor Bryan, Mr. Sam B. Jeffries and Mr. Thomas Bond for respondents.
No. 716. American Trust Company v . S. S. Mc Ninch et al . Error to the Supreme Court of the State of North Carolina. March 5, 1923. Petition for a writ of certiorari herein denied. Mr. John M. Robinson, for plaintiff in error, in support of the petition. Mr. William P. Bynum, Mr. W. Cleveland Davis, Mr. Plummer Stewart, Mr. John A. McRae and Mr. John J. Parker, for defendants in error, in opposition to the petition. [See ante, 606.]
No. 799. Ward Grandpre v . Chicag o , Milwaukee & St . Paul Railw ay Company . March 5, 1923. Petition for a writ of certiorari to the Supreme Court of the State of South Dakota denied. Mr. Tom Davis, Mr. Ernest A. Michel and Mr. Wade H. Ellis for petitioner. Mr. 0. W. Dynes for respondent.
No. 821. Hanna h Levine v . Pennsylv ania Rail road Comp any . March 5, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. John L. Wilkie for petitioner. Mr. Van Vechten Veeder for respondent.
No. 826. William Lucking v . Detroit & Cleveland Navigati on Comp any . Appeal from the Circuit Court of Appeals for the Sixth Circuit. March 5, 1923. Peti- p. 619261 U.S. Certiorari Denied.
tion for a writ of certiorari herein denied. Mr. William Lucking, for appellant, in support of the petition. Mr. Henry I. Armstrong, Jr., for appellee, in opposition to the petition.
No. 830. Edmond C. Flet cher v . Isaiah S. Coomes et al . March 5, 1923. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia denied. Mr. Camden R. McAtee for petitioner. No appearance for respondents.
No. 844. Jacksonvi lle Forwar ding Compa ny v . County of Nas sa u , State of Florida . March 5, 1923. Petition for a writ of certiorari to the Supreme Court of the State of Florida denied. Mr. George C. Bedell for petitioner. Mr. Martin H. Long for respondent.
No. 867. Frank N. Snell et al . v . Frank Snell Saw - mill Company et al . March 5,1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. * Mr. William M. Toomer for petitioners. Mr. Samuel Silbiger for respondents.
No. 805. Lehigh & Hudson River Railway Company v. Florence M. Otterstedt , on Behalf of Herse lf and Minor Childre n . March 12, 1923. Petition for a writ of certiorari to the Supreme Court, Appellate Division, Third Department, of the State of New York, denied for failure to submit the petition within the time prescribed by the rule. Mr. John J. Beattie for petitioner. Mr. E. Clarence Aiken for respondent.
No. 764. Tidal Oil Company et al . v . J. P. Flanagan . Error to the Supreme Court of the State of Oklahoma. March 12, 1923. Petition for a writ of certiorari herein denied. Mr. Preston C. West, Mr. A. A. Davidson, Mr. Wallace C. Franklin and Mr. Arthur J. Biddison, for plaintiffs in error, in support of the petition. Mr. Edward H. Chandler and Mr. William 0. Beall, for defendant in error, in opposition to the petition.
No. 829. George H. Sever v . Direc tor General of Railroads . March 12, 1923. Petition for a writ of certiorari to the Supreme Court of the State of New York denied. Mr. John E. Benton for petitioner. Mr. Edwin W. Lawrence for respondent.
No. 837. Henry M. Goldfogle , Presi dent , et al . v . Hanover Nation al Bank of the City of New York . March 12, 1923. Petition for a writ of certiorari to the Supreme Court of the State of New York denied. Mr. William H. King, Mr. George P. Nicholson, Mr. Frank B. Kellogg, Mr. Eugene Fay and Mr. Charles L. Pierce for petitioners. Mr. E. F. Colladay, Mr. Martin Saxe, Mr. Percy S. Dudley, Mr. Frank M. Patterson and Mr. Merton E. Lewis for respondent.
No. 842. Norfolk Southern Rail road Comp any v . Thom as V. Gordon . March 12, 1923. Petition for a writ of certiorari to the Supreme Court of the State of North Carolina denied. Mr. Robert N. Simms and Mr. C. M. Bain for petitioner. Mr. William C. Douglass and Mr. Clyde A. Douglass for respondent.
No. 849. Nathaniel P. Lesueur et al ., etc ., v . Man - ufacturers ’ Finance Company . March 12, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. James S. Pilcher for petitioners. Mr. John J. Vertrees for respondent.
No. 857. James C. Davis , as Agent , etc . v . Marguer ite Clark , Adminis tratr ix , etc . March 12,1923. Petition for a writ of certiorari to the Supreme Court of the State of Minnesota denied. Mr. Bruce Scott, Mr. A. A. McLaughlin and Mr. O. M. Spencer for petitioner. Mr. Tom Davis and Mr. Ernest A. Michel for respondent.
No. 858. City of New York v . Rodge rs & Hagert y , Inc . March 12, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Edmund L. Mooney and Mr. Terence Farley for petitioner. Mr. C. C. Calhoun for respondent.
No. 860. Samuel C. Pandolfo v . Unite d States . March 12, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Patrick J. Lucey, Mr. Gerald G. Barry and Mr. Bernhardt Frank for petitioner. Mr. Solicitor General Beck, Mr. Assistant Attorney General Crim and Mr. H. S. Ridgely for the United States.
No. 861. Alabama Grocery Company v . L. P. Ham - mond , Truste e , etc . March 12, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Lee C. Bradley for petitioner. Mr. Forney Johnston for respondent.
No. 410. Mary Partridge v . J. E. Crosbie et al . Error to the Supreme Court of the State of Oklahoma. March 19, 1923. Writ of error dismissed pursuant to the 10th Rule, and petition for a writ of certiorari herein dismissed for failure to comply with the rule as to printing record. Mr. Burt E. Barlow and Mr. Henry B. Martin for plaintiff in error. Mr. A. A. Davidson and Mr. Preston C. West for defendants in error. [See post, 626, 629.]
No. 854. Walter Burke v . Unite d States . March 19, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Willet M. Spooner and Mr. S. R. Rush for petitioner. Mr. Solicitor General Beck, Mr. Assistant Attorney General Crim and Mr. H. S. Ridgely for the United States.
No. 879. George P. Clark Company v . Kueble r Foun - dries , Inc . March 19,1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. J. Willard Paff and Mr. Calvin F. Smith for petitioner. Mr. A. Mitchell Palmer and Mr. Frank Davis, Jr., for respondent.
No. 902. Pete r Rulov itch et al . v . United Stat es . March 19, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. John J. O’Brien for petitioners. No brief filed for the United States.
No. 898. Robert W. Hunt et al . v . D. L. Gilles pie . April 9, 1923. Petition for a writ of certiorari to the Supreme Court of the State of Pennsylvania denied. Mr. H. G. Stone and Mr. W. W. Gurley for petitioners. Mr. David A. Reed and Mr. George H. Calvert for respondent.
No. 843. Dean Sherry , Truste e , etc ., et al . v . J. B. Lucas . April 9, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. J. J. Butts for petitioners. No appearance for respondent.
No. 856. John W. Talbot v . United States . April 9, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Cassius C. Shirley and Mr. Larz A. Whitcomb for petitioner. Mr. Solicitor General Beck, Mr. Assistant Attorney General Crim and Mr. H. S. Ridgely for the United States. Mr. J. C. Risk, by leave of court, as amicus curice.
No. 868. Window Glass Machine Company et al . v . Pitts burgh Plate Glass Comp any . April 9, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Clarence P. Byrnes, Mr. Livingston Gifford and Mr. David A. Reed for petitioners. Mr. Marshall A. Christy and Mr. George B. Gordon for respondent.
No. 872. The Pusey & Jones Company v . Willard Saulsbury et al ., as Receivers , etc ., et al . April 9, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Lindley M. Garrison, Mr. Charles H. Tuttle and Mr. Saul S. Myers for petitioner. Mr. William H. Button, Mr. John P. Nields and Mr. William G. Mahaffy for respondents.
No. 882. Herbert W. Bacon , Admin ist rator , etc ., v . John Barton Payne , Direc tor General , etc . April 9, 1923. Petition for a writ of certiorari to the Supreme Court of the State of Michigan denied. Mr. Frank S. p. 624Monnett for petitioner. Mr. J. Walter Dohany and Mr. Frank E. Robson for respondent.
"No. 891. Freibe rg Mahogany Company v . Bates vill e Lumber & Venee r Company . April 9, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Murray Seasongood for petitioner. Mr. Judson Harmon and Mr. George Hoadly for respondent.
No. 900. Chicago , Burling ton & Quincy Railr oad Company v . Mc Kinle y C. Myers . April 9, 1923. Petition for a writ of certiorari to the Supreme Court of the State of Missouri denied. Mr. Bruce Scott for petitioner. Mr. William Buchholz, Mr. I. B. Kimbrell and Mr. Martin J. O’Donnell for respondent.
No. 904. Sam M. Saliba et al . v . United Stat es . April 9, 1923. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Forney Johnston for petitioners. Mr. Solicitor General Beck, Mr. Assistant Attorney General Crim and Mr. H. S. Ridgely for the United States.
CASES DISPOSED OF WITHOUT CONSIDERATION BY THE COURT, FROM JANUARY 30, 1923, TO AND INCLUDING APRIL 9, 1923.
No. 87. Mc Lane Tilt on v . Felix M. Drennen , as Recei ver , etc . Appeal from the Circuit Court of Appeals for the Fifth Circuit. February 19, 1923. Dismissed with costs, pursuant to the 10th Rule. Mr. Forney Johnston for appellant. Mr. H. L. Stevens and Mr. Joseph E. Johnson for appellee.
No. 233. Porto Rico Coal Company , Inc . v . William H. Edwa rds , Collector of United State s Internal Revenue , etc . Error to the District Court of the United States for the Southern District of New York. February 19,1923. Dismissed with costs, pursuant to the 10th Rule. Mr. Francis W. Ay mar for plaintiff in error. The Attorney General for the defendant in error.
No. 252. Judson Knox v . Unite d Stat es . Error to the District Court of the United States for the Western District of South Carolina. February 19, 1923. Dismissed, pursuant to the 10th Rule. Mr. Charles A. Douglas and Mr. Hugh H. Obear for plaintiff in error. The Attorney General for the United States.
No. 395. Roy Youman v . Common we alt h of Ken - tucky . Error to the Court of Appeals of the State of Kentucky. February 19, 1923. Dismissed with costs, pursuant to the 10th Rule. Mr. H. L. James for plaintiff in error. No appearance for defendant in error.
No. 491. Frank J. Levene v . State of Alabama . Error to the Supreme Court of the State of Alabama. February 19, 1923. Dismissed with costs, pursuant to the 10th Rule. Mr. Alex. T. Howard for plaintiff in error. No appearance for defendant in error.
No. 522. Jay Burns Baking Compa ny et al . v . Samue l R. Mc Kelvie , as Governor of the State of Ne - braska , et al . Error to the Supreme Court of the State of Nebraska. February 19, 1923. Dismissed with costs, pursuant to the 10th Rule. Mr. Matthew A. Hall and Mr. Carroll S. Montgomery for plaintiffs in error. No appearance for defendants in error. [See ante, 608.]
50947°—23------- 40
No. 537. Frank Dill on v . People of the State of Illinois . Error to the Supreme Court of the State of Illinois. February 19, 1923. Dismissed with costs, pursuant to the 10th Rule. Mr. Rush B. Johnson for plaintiff in error. No appearance for defendant in error.
No. 634. Stef ano Sangui nett i v . Unite d Stat es . Appeal from the Court of Claims. February 19, 1923. Dismissed, pursuant to the 10th Rule. Mr. Benjamin Carter for appellant. The Attorney General for the United States.
No. 640. Unite d Stat es ex rel . Catoni Tisi , alias Lista Cortina , v . Robert E. Tod , Commis si oner of Immigration , etc . Appeal from the District Court of the United States for the Southern District of New York. February 19, 1923. Dismissed with costs, pursuant to the 10th Rule. Mr. Walter Nelles and Mr. Isaac Shorr for appellant. The Attorney General for appellee.
No. 653. Puget Sound Power & Light Comp any et al . v. County of King et al . Error to the Supreme Court of the State of Washington. February 19, 1923. Dismissed with costs, pursuant to the 10th Rule. Mr. James B. Howe, Mr. Walter F. Meier, Mr. Thomas J. L. Kennedy, and Mr. F. D. McKenney for plaintiffs in error. Mr. Howard A. Hanson and Mr. Malcolm Douglas for defendants in error. [See ante, 607.]
No. 389. John H. Brede v . James M. Power s , United State s Mars hal . Appeal from the District Court of the United States for the Eastern District of New York.
No. 410. Mary Partridge v . J. E. Crosbie et al . Error to the Supreme Court of the State of Oklahoma.
No. 418. Samuel Homer Woodb ridge et al ., Execu - tors , etc ., v. United States . Appeal from the Court of Claims.
No. 651. State of Arkansas ex rel . Jeff erso n Black v. Board of Direct ors of School Dis trict 16, Mont - gomer y County , Arkan sas . Error to the Supreme Court of the State of Arkansas. February 19,1923. These cases will severally stand dismissed under the 10th Rule unless the deposit for printing the record is made on or before March 5 next. Mr. Morris Kamber and Mr. Robert H. Elder for appellant, and The Attorney General for appellee, in No. 389. Mr. Henry B. Martin for plaintiff in error, and Mr. A. A. Davidson and Mr. Preston C. West for defendants in error, in No. 410. Mr. H. P. Doolittle and Mr. Rufus S. Day for appellants, and The Attorney General for the United States, in No. 418. Mr. R. G. Davies for plaintiff in error; no appearance for defendant in error, in No. 651. [See post, 629, as to No. 410.]
No. 293. Raton Water Works Compa ny v . City of Raton . Appeal from the District Court of the United States for the District of New Mexico. February 19, 1923. This case will stand dismissed under the 10th Rule unless the deposit for printing the record is made on or before May 1 next. Mr. Abram J. Rose for appellant. No appearance for appellee.
No. 277. Wells -Elkhorn Coal Company v . Otis Steel Comp any . Error to the District Court of the United States for the Eastern District of Kentucky. February 20, 1923. Dismissed with costs, per stipulation. Mr. Simeon S. Willis, Mr. John F. Hager and Mr. J. W. M. Stewart for plaintiff in error. Mr. George B. Martin for defendant in error.
No. 253. M. Frank Andrews v . Unite d States . Error to the District Court of the United States for the Western District of South Carolina. February 26, 1923. Judgment reversed, upon confession of error by the defendant in error, on motion of Mr. Hugh H. Obear for plaintiff in error, with consent thereto by Mr. Solicitor General Beck for the United States. Mr. Hugh H. Obear, Mr. Charles A. Douglas, Mr. Richard A. Ford and Mr. H. C. Miller for plaintiff in error. Mr. Solicitor General Beck, Mr. Assistant Attorney General Crim and Mr. Blackburn Esterline, Assistant to the Solicitor General, for the United States.
No. 686. Southern Railw ay Company v . A. D. Watts , etc ., et al . Appeal from the District Court of the United States for the Western District of North Carolina. February 26, 1923. Dismissed with costs, on motion of counsel for appellant. Mr. S. R. Prince for appellant. No appearance for appellees.
No. 713. Charles A. Houts et al . v . W. E. Mc Kin - ney , as Guardi an , etc ., et al . Appeal from the Circuit Court of Appeals for the Eighth Circuit. March 5, 1923. Dismissed with costs, per stipulation. Mr. Charles A. Houts for appellants. No appearance for appellees.
No. 687. Atlant ic & Yadkin Railway Comp any v . A. D. Watts , etc ., Commi ssione r of Reve nue , et al . Appeal from the District Court of the United States for the Western District of North Carolina. March 12, 1923. Dismissed with costs, on motion of counsel for appellant. Mr. S. R. Prince for appellant. No appearance for appellees.
No. 410. Mary Partridge v . J. E. Crosbi e et al . Error to the Supreme Court of the State of Oklahoma. March 19, 1923. Writ of error dismissed pursuant to the 10th Rule, and petition for a writ of certiorari herein dismissed for failure to comply with the rule as to printing record. Mr. Burt E. Barlow and Mr. Henry B. Martin for plaintiff in error. Mr. A. A. Davidson and Mr. Preston C. West for defendants in error. [See ante, 622, 626.]
No. 912. Vincen te Gordero et al . v . Unite d States . Error to the District Court of the United States for Porto Rico. March 19, 1923. Docketed and dismissed, on motion of Mr. Solicitor General Beck for the United States. No appearance for plaintiffs in error.
No. 172. Federal Trade Commiss ion v . Fruit Grow - ers ’ Expres s , Inc . On writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit. April 9, 1923. Dismissed with costs, per stipulation, on motion of Mr. Solicitor General Beck in that behalf. Mr. Charles J. Faulkner, Jr., and Mr. R. F. Feagans for respondent.
No. 866. United State s v . Penin sular Stove Com - pany . Appeal from the Court of Claims. April 9, 1923. Dismissed, on motion of Mr. Solicitor General Beck for the United States. No appearance for appellee.
No. 683. Seaboar d Air Line Railw ay Company v . A. D. Watts , etc ., Commi ss ioner of Reve nue , etc ., et al . Appeal from the District Court of the United, States for the Eastern District of North Carolina. April 9, 1923. Dismissed with costs, per stipulation. Mr. Thomas W. Davis and Mr. Murray Allen for appellant. No appearance for appellees.
No. 684. Atlantic Coast Line Rail road Company v . A. D. Watts , etc ., Commis si oner of Reve nue , etc ., et al . Appeal from the District Court of the United States for the Eastern District of North Carolina. April 9, 1923. Dismissed with costs, per stipulation. Mr. Thomas W. Davis for appellant. No appearance for appellees.
No. 688. Norfolk Southern Rail road Company , v . A. D. Watts , etc ., Commi ss ioner of Revenue , etc ., et al . Appeal from the District Court of the United States for the Eastern District of North Carolina. April 9, 1923. Dismissed with costs, per stipulation. Mr. W. B. Rodman for appellant. No appearance for appellee.