Williamsport Wire Rope Co. v. United States, 277 U.S. 551 (1928)

WILLIAMSPORT WIRE ROPE COMPANY v. UNITED STATES.

CERTIORARI TO THE COURT OF CLAIMS.

No. 337. Argued April 24, 25, 1928.—Decided June 4, 1928.

1. The power of the Commissioner of Internal Revenue in determining whether a corporation is entitled, under § 327 (a) and (b) of the Revenue Aot of 1918, to have its war and excess profits taxes fixed by a special assessment under § 328 by a comparison with the taxes of other, representative corporations engaged in a like or similar trade or business, is discretionary in character; and the power of the Board of Tax Appeals in reviewing such determination under the Revenue Act of 1924 is likewise discretionary, and executive, in character. Pp. 558, 562.

2. Under the Act of 1918, the Court of Claims, in a suit to recover taxes alleged to have been illegally collected, was without jurisdiction to review a determination of the Commissioner refusing a special assessment under §§ 327 and 328; nor was such jurisdiction conferred on that court as the result of the provision made in the Act of 1924 for review of the Commissioner’s determination by the Board of Tax Appeals. Pp. 561, 562.

63 Ct. Cis. 463, affirmed.

Certiorari , 275 U. S. 520, to a judgment of the Court of Claims dismissing, for want of jurisdiction, a claim for the amount of an alleged overpayment of war and excess profits taxes.

Mr. James Walton, with whom Mr. Clarence A. Miller was on the brief, for petitioner.

The decision of this Court in Blair v. Oesterlein Machine Co., 275 U. S. 220, is controlling in this case.

The only theory upon which there could be jurisdiction in the Board of Tax Appeals, and still no jurisdiction in the federal courts, would be that Congress vested in the Board some particular added judicial power not heretofore exercised by the courts. The statute discloses the exact contrary. The Board has the most limited jurisdiction and merely serves to give the taxpayer an additional hearing before he is compelled to pay. § 900 (k), Act of 1924. In the event the decision is against the taxpayer, he will be required to pay the tax according to the assessment and have recourse to the courts for the recovery thereof. If the decision is against the Government, it will likewise have recourse to the courts.

The Senate committee, in reporting the tax bill, recognized clearly that a case under §§ 327 and 328 can be taken to court after a Board of Tax Appeals decision. No additional statutory jurisdiction having been conferred on the courts respecting such cases, they must have had this jurisdiction before the Board was'created.

The court must compute the correct tax in every case where overpayment is contended by the taxpayer. In United States n . Emery, 237 U. S. 28, and Rock Island R. R. v. United States, 254 U. S. 141, this Court stated, in substance, that it was the Commissioner’s duty to determine, assess and levy the tax, but that does not mean that a federal court may not compute the tax correctly when the Commissioner refuses to do it. To say that a court is without jurisdiction to compute and determine the correct tax is simply to say, in effect, that a court is without jurisdiction to render a judgment for a refund.

Solicitor General Mitchell for the United States.

In Blair v. Oesterlein Machine Co., 275 U. S. 220, it was held that the statutes giving the Board of Tax Appeals authority to review decisions of the Commissioner of Internal Revenue on determination of deficiencies were not subject to the limitation that the decisions of the Commissioner, making or refusing special assessments under §§ 327 and 328 of the Revenue Act of 1918, were not open to review.

The question here is whether the statutes giving to the Court of Claims jurisdiction to entertain suits to recover taxes erroneously or illegally assessed or collected, read in connection with §§ 327 and 328 of the Revenue Act of 1918, deny to the court the power to review the decisions of the Commissioner under those sections. We have been unable to find any ground for contending that the cases are distinguishable. If the statute giving the Board of Tax Appeals general jurisdiction to review the decisions of the Commissioner on deficiencies was not subject to any qualification as to special assessments, we see no reason why the general jurisdiction of the Court of Claims to award judgment for taxes illegally or erroneously assessed or collected should be so limited.

At present the decisions of the Board of Tax Appeals are reviewable in the Circuit Court of Appeals. If the decisions of the Commissioner under the special assessment sections are reviewable in the courts under that procedure, we see no reason why they should not be reviewable in the courts where the other course is followed and suit is commenced in the district court or the Court of Claims for the collection or the tax alleged to have been erroneously assessed.

Messrs. Adrian C. Humphreys and Newton K. Fox filed a brief as amici curiae, by special leave of Court.

Mr . Justice Brandeis delivered the opinion of the Court.

1 Sec. 327. That in the following cases the tax shall be determined as provided in section 328:

(a) Where the Commissioner is unable to determine the invested capital as provided in section 326;

(b) In the case of a foreign corporation;

(c) Where a mixed aggregate of tangible property and intangible property has been paid in for stock or for stock and bonds and the Commissioner is unable satisfactorily to determine the respective values of the several classes of property at the time of payment, or to distinguish the classes of property paid in for stock and for bonds, respectively;

(d) Where upon application by the corporation the Commissioner finds and so declares of record that the tax if determined without benefit of this section would, owing to abnormal conditions affecting the capital or income of the corporation, work upon the corporation an exceptional hardship evidenced by gross disproportion between the tax computed without benefit of this section and the tax computed by reference to the representative corporations specified in section 328. . . .

Sec. 328 (a). In the cases specified in section 327 the tax shall be the amount which bears the same ratio to the net income of the taxpayer (in excess of the specific exemption of $3,000) for the taxable year, as the average tax of representative corporations engaged in a like or similar trade or business, bears to their average net income (in excess of the specific exemption of $3,000) for such year. In the case of a foreign corporation the tax shall be computed without deducting the specific exemption of $3,000 either for the taxpayer or the representative corporations.

In computing the tax under this section the Commissioner shall compare the taxpayer only with representative corporations whose invested capital can be satisfactorily determined under section 326 and which are, as nearly as may be, similarly circumstanced with respect to gross income, net income, profits per unit of business transacted and capital employed, the amount and rate of war profits or excess profits, and all other relevant facts and circumstances.

In its petition for a writ of certiorari, the Williamsport Company alleged that its rights would presumably be determined by the decision in Blair v. Oesterlein Machine Co., a case then pending in this Court; and the Solicitor General, being of the same opinion, did not feel justified in opposing the granting of the writ. Decision on the petition was postponed pending decision of the Oesterlein case. That case, 275 U. S. 220, was decided November 21, 1927. We there held that the exercise of the judgment or discretion of the Commissioner to allow or deny the special assessment provided for in §§ 327 and 328 was subject to review by the Board of Tax Appeals; and that therefore the taxpayer was entitled to an order compelling the Commissioner to respond to the subpoena of the Board issued under § 900(i) of the Revenue Act of 1924, c. 234, 43 Stat. 253, 338, requiring him to answer interrogatories and to furnish information contained in the returns of other corporations. On November 28, the writ of certiorari in this case was granted. Thereupon, the Williamsport Company moved, presumably in analogy to motions to

shall be determined by the Commissioner in accordance with regulations prescribed by him with the approval of the Secretary. . . .

(c) The Commissioner shall keep a record of all cases in which the tax is determined in the manner prescribed in subdivision (a), containing the name and address of each taxpayer, the business in which engaged, thé amount of invested capital and net income shown by the return, and the amount of invested capital as determined under such subdivision. The Commissioner shall furnish a copy of such record and other detailed information with respect to such cases when required by resolution of either House of Congress, without regard to the restrictions contained in section 257.

affirm under Rule 6, that the judgment against it be reversed on the authority of the Oesterlein case. The Solicitor General, while not opposing the motion, advised us that the Court of Claims had, since the decision of the Oesterlein case, adhered to the view that it was without power to determine whether the Commissioner of Internal Revenue had erred in refusing to make a special assessment under §§ 327 and 328. We then assigned the case for oral argument, without passing on the motion to reverse and remand.

The contention here is that, since the Commissioner’s action was made reviewable on appeal by the Board of Tax Appeals, it is and was always reviewable in an original proceeding before the Court of Claims. The argument is that Congress has conferred upon the Court of Claims jurisdiction over suits to recover taxes alleged to have been “erroneously or illegally assessed or collected;”2 that here its jurisdiction is invoked to recover taxes claimed to have been assessed illegally, because assessed under § 301 instead of under §§ 327 and 328; that it must therefore have power to determine whether conditions existed which entitled the Company to the special assessment provided for by § § 327 and 328; that if it finds that such condition did exist, it must also have power to determine the true amount of the tax computed as therein directed; and that if it appears that the tax actually paid exceeds that which would have been exacted under the special assessment, the Court may award judgment for the difference.

Opinion of the Court. 277U.S

Sections 327 and 328 were intended to broaden the powers of relief first conferred by § 210 of the War Revenue Act of 1917, c. 63, 40 Stat. 300, 307.3 It was “ believed necessary to provide a special method of determining the tax for those cases in which the ordinary method of assessment would result in grave hardship or serious inequality.” Senate Report, 65th Cong. 3d Sess., No. 617, p. 14. The special assessment is to be made under paragraph (a) when the Commissioner “ is unable to determine the invested capital.” It is to be made under paragraph (d) if he “ finds and so declares of record that the tax if determined without the benefit of this section would . . . work ... an exceptional hardship . . .” The task imposed on the Commissioner by §§ 327 and 328 was one that could only be performed by an official or a body having wide knowledge and experience with the class of problems concerned. For the requirement of a special assessment under paragraph (d) of § 327 and its computation in all cases, are dependent on “ the average tax of representative corporations engaged in a like or similar trade or business.”4

To perform that task, power discretionary in character , was necessarily conferred.6 Whether, as provided in paragraph (d) of § 327, there are “ abnormal conditions;” whether, because of these conditions, computation under § 301 would work “ exceptional hardship;” whether there would be “ gross disproportion ” between the tax computed under § 301 and “ that computed by reference to the representative corporations specified in section 328;” what are “ representative corporations engaged in a like or similar trade or business ; ” which corporations are “ as nearly as may be, similarly circumstanced with respect to gross income, net income, profits per unit of business transacted and capital employed, the amount and rate of war profits or excess profits, and all other relevant facts and circumstances ”—these are all questions of administrative discretion.

The soundness of the judgment exercised by the individual or body to whom the task was confided would depend largely upon the extent both of the knowledge of the special subject possessed and of the experience had in dealing with this particular class of problems. The conclusions reached would rest largely upon considerations not entirely susceptible of proof or disproof. Congress did not, by the Revenue Act of 1918, require the Commissioner to embody the results of his deliberation in findings of fact. The purpose of the meagre record prescribed by § 328(c) in case the Commissioner concludes to order a special assessment is apparently to protect the Treasury,

Opinion of the Court. 277 U.S.

not the taxpayer.6 For if the Commissioner refuses to make the special assessment, he is not required to state the grounds of his refusal, or, indeed, even to record the fact of such refusal. Thus the aims which induced Congress to enact §§ 327 and 328, the nature of the task which it confided to the Commissioner, the methods of procedure prescribed, and the language employed to express the conditions under which the special assessment is required, all negative the right to a review of his determination by a court.

It is true that where the Commissioner’s action is reviewable judicially, his findings of fact in making an assessment, as distinguished from his determinations involving administrative discretion, constitute only prima facie evidence; and that, in cases arising under the internal revenue laws, such findings are commonly reviewable by courts in appropriate proceedings in which the facts become an issue. United States v. Rindskopf, 105 U. S. 418, 422; Wickwire x. Reinecke, 275 U. S. 101, 105. It is also true that in reviewing the Commissioner’s findings on such matters as value, compare Costner, Curran & Bullitt, Inc. x. Lederer, 275 Fed. 221; Little Cahaba Coal Co. v. United States, 15 F. (2d) 863; allowances for depreciation, compare Cohen v. Lowe, 234 Fed. 474; Camp Bird, Ltd. x. Howbert, 262 Fed. 114; or the accuracy with which a taxpayer’s books reflect his income, compare In re Sheinman, 14 F. (2d) 323, courts may be confronted with problems requiring a high degree of technical knowledge for their solution. But such problems involve .primarily the situation of a single taxpayer, and the controlling data can

6 The Report of the Select Committee of the Senate on Investigation of the Bureau of Internal Revenue, Senate Report, 69th Cong., 1st Sess., No. 27, Pt. I, p. 221, contains a list of all refunds, credits and abatements exceeding $250,000 made through special assessments under § 210 of the Act of 1917 and § 328 of the Act of 1919. Compare Pt. II, pp. 273ff.

easily be made available to the court. Here, the considerations which demand special assessment under § 327 (d), and those which govern its computation in all cases, are facts concerning the situation of a large group of taxpayers which can only be known to an official or a body having wide experience in such matters and ready access to the means of information.

The jurisdiction of the Court of Claims, if any, rests on statutory provisions which long antedate the Revenue Act of 1918. Its jurisdiction over suits to recover taxes is based on the clause in the original Act of February 24, 1855, c. 122, 10 Stat. 612, empowering it to determine “ all claims founded upon any law of Congress.” United States v. Kaufman, 96 U. S. 567, 569; Dooley n . United States, 182 U. S. 222. Compare United States v. Emery, Bird, Thayer Co., 237 U. S. 28. But we have held that the Court of Claims is without jurisdiction where the statute creating the claim expressly refers it for final determination to an executive department. United States v. Babcock, 250 U. S. 328, 331. And that it is equally without jurisdiction where from an examination of all the terms of the statute it appears that Congress intended to vest final authority in an administrative agency. United States v. Atchison, Topeka & Santa Fe Ry. Co., 249 U. S. 451; Silberschein v. United States, 266 U. S. 221. Long ago Congress conferred final authority upon such an agency in the enforcement of the appraisal provisions by which the amounts payable under the customs laws are determined. Compare Bartlett v. Kane, 16 How. 263, 272; Hilton v. Merritt, 110 U. S'. 97, 105; Passavant n . United States, 148 U. S. 214.

Moreover, whatever jurisdiction is possessed by the Court of Claims to review determinations under §§ 327 and 328, would be possessed also by the district courts in suits against collectors and in actions against the United States, under § 24(20) of the Judicial Code. Thus the

It remains to consider whether jurisdiction to review the Commissioner’s action was conferred upon the Court of Claims as a result of the Revenue Act of June 2, 1924, c. 234, 43 Stat. 253, 336, which created the Board of Tax Appeals. There is nothing in that Act which purports to enlarge the jurisdiction of the Court of Claims or to extend the scope of judicial review over determinations of the Commissioner. The contention that it had this effect rests wholly on our decision in Blair v. Oesterlein Machine Co., 275 U. S. 220. The contention fails to take account of the important differences between an appeal to the Board of Tax Appeals, on the one hand, and an original suit in the Court of Claims, or in a district court, on the other. The Board of Tax Appeals was created to perform the administrative functions theretofore discharged by the Committee on Appeals and Review, which the Commissioner of Internal Revenue had established in his office.7 See House Report, 68th Cong. 1st Sess., No.

7 The Revenue Act of 1918, c. 18, § 1301(d), 40 Stat. 1057, 1141, created an Advisory Tax Board to be appointed by the Commissioner with the approval of the Secretary of the Treasury. See House Re-

179, p. 7; Senate Report, 68th Cong. 1st Sess., No. 398, p. 8. The Committee had regularly reviewed determi-

port, 65th Cong., 2d Sess., No. 767, p. 38; Senate Report, 65th Cong., 3d Sess., No. 617, p. 58. The Commissioner might submit to the Board and on the request of a taxpayer must submit any question relating to the interpretation or administration of the income, war-profits or excess-profits tax. The functions of the Board were, in some degree, similar to those of the excess-profits tax advisers and reviewers who had aided the Commissioner in applying the 1917 act. See Report of the Commissioner of Internal Revenue, 1918, p. 13. Procedure as to the submission of questions and practice before the Board was established by Regulations 45, art. 1701 (T. D. 2831). The Board, which was organized on March 13, 1919, came to an end on October 1 of that year. Report, 1919, pp. 12-14.

The work that had been performed by the Advisory Tax Board was, however, immediately taken over by a committee of lawyers and accountants organized by the Commissioner in the Bureau. Report, 1919, p. 14. The procedure for taking appeals to this committee, which was known as the Committee on Appeals and Review, was laid down in 0. D. 709, 3 C. B. 370. The nature of the work of this body is described in the Commissioner’s Report for 1920, pp. 14-15, and for 1921, pp. 14-15.

Section 250(d) of the Revenue Act of 1921, c. 136, 42 Stat. 227, 265-266, provided that if on examination of a return under the Acts of 1916, 1917, 1918, or 1921, a tax or deficiency in tax should be discovered, the taxpayer should be notified and given a period of not less than 30 days in which to file an appeal. See House Report, 67th Cong., 1st Sess., No. 350, p. 14; Senate Report, 67th Cong., 1st Sess., No. 275, pp. 20-21. The procedure for perfecting appeals under this section was laid down by T. D. 3269; Regulations 62, art. 1006 (T. D. 3409); and T. D. 3492. Appeals under this section appear to have been commonly handled by the Committee on Appeals and Review. See Rules of Procedure before the Committee, A. R. M. 219, Int. Rev. Cum. Bull. III-l, 319; Reports of the Commissioner for 1922, p. 15, for 1923, pp. 8-9, and for 1924, pp. 10-12.

It is true that, unlike the Committee, the Board of Tax Appeals is not a part of the Bureau of Internal Revenue. The Board is an independent agency. But by specific provision of the Revenue Act of 1924, c. 234, § 900 (k), 43 Stat. 253, 338, it was defined as an agency “in the executive branch of the Government.” Compare Goldsmith v. Board of Tax Appeals, 270 U. S. 117, 121-122. Its sole function consists in reviewing, on appeal, determinations of the Commissioner under the revenue laws.. The fact that the Commissioner is a party to all cases before it enables the Board, by rules of procedure which it has developed, to leave to the Commissioner the initial determination of many questions requiring the use of facts not in the record.9 Its limited, specialized functions en-

8 In the following cases the Advisory Tax Board or the Committee on Appeals and Review considered the question whether, under § 210 of the 1917 act or § 327 of the 1918 act, a special assessment ought to be made: T. B. M. 53, 1 C. B. 303; T. B. M. 58, 1 C. B. 304; A. R. R. 36, 2 C. B. 269; A. R. R. 70, 2 C. B. 287; A. R. M. 12, 2 C. B. 292; A. R. R. 19, 2 C. B. 298; A. R. R. 104, 2 C. B. 301; A. R. R. 110, 2 C. B. 303; A. R. R. 209, 3 C. B. 360; A. R. R. 332, 3 C. B. 362; A. R. R. 338, 3 C. B. 363; A. R. R. 363, 4 C. B. 14; A. R. R. 364, 4 C. B. 16; A. R. R. 464, 4 C. B. 17; A. R. R. 459, 4 C. B. 399; A. R. R. 518, 4 C. B. 401; A. R. R. 556, 5 C. B. 142; A. R. R. 538, 5 C. B. 301; A. R. R. 599, 5 C. B. 304.

9 Rule 62, effective December 28, 1927, lays down the procedure in special assessment cases. By paragraph (b) it is provided that the hearing may, in the discretion of the Board, on motion, be limited to the question whether the petitioner is entitled to have its tax determined under § 328 (or § 210). Paragraph (c) provides that if the

551 . Syllabus.

able its members to acquire the extensive special knowledge and the specific experience essential to a sound exercise of judgment in dealing with questions arising under §§ 327 and 328.10 As was said in the Oesterlein case, supra, at p. 226, there is no reason for thinking that Congress considered the Commissioner to be better qualified for making determinations under § § 327 and 328 than this administrative agency specially established to review his decisions.

EX PARTE COLLINS.

MOTION FOR LEAVE TO FILE PETITION FOR MANDAMUS.

No. — Original. Motion submitted April 30, 1928.—Decided June 4, 1928.

1. Leave to file a petition for mandamus to require a district judge to set aside an order refusing an interlocutory injunction and call

Board decides that the petitioner is so entitled, the Commissioner shall file within 60 days after such decision, a proposed redetermination showing the basis and method of the computation. If, within 20 days after service by the Board upon the petitioner of a copy of such proposed redetermination, the parties are unable to agree on the amount of the tax, either party may move or the Board on its own motion may order that the case be placed on the calendar for further hearing. See also Rule 50, Settlement of Final Determination, as amended April 28, 1928.

10 The administration of the special assessment sections by the Commissioner was being investigated by a Select Committee of the Senate at the very time when Congress had the Revenue Bill of 1924 under consideration. See Hearings before the Select Committee on Investigation of the Bureau of Internal Revenue, U. S. Senate, 68th Cong., 1st Sess., pursuant to S. Res. 168, p. 136. Compare the final report of the committee, Senate Report, 69th Cong., 1st Sess., No. 27, Pt. I, pp. 6, 214-223, Pt. II, pp. 247, 280. Congress plainly did not intend to remove altogether the right to a review of determinations under § 327 which, by virtue of § 1301(d) of the Act of 1918, § 250(d) of the Act of 1921, and the regulations of the Bureau, the taxpayer had theretofore enjoyed.

in two other judges under Jud. Code, § 266, will be denied if it be clear that the case is not within, that section. P. 566. 2. A suit by an abutting property owner to enjoin a city and its contractor from proceeding under a resolution for the paving of a street, upon thè ground that general statutes of the State, which provide that the cost of such improvements shall be assessed against abutting property, contravene the due process clause of the Fourteenth Amendment in not affording the plaintiff a proper hearing, is not a suit to restrain “ the enforcement, operation, or execution of a statute of a State ” within Jud. Code, § 266. P. 567. Motion denied.

On a moti on for leave to file a petition for a writ of mandamus requiring a district judge to set aside an order refusing an interlocutory injunction and to call in two additional judges, under § 266 of the Judicial Code, in a suit by an abutting property owner to enjoin execution of a resolution for the paving of a city street.

Messrs. John W. Ray, Joseph C. Niles, and J. D. Collins, pro se, were on the brief for petitioner.

Mr . Justice Brandeis delivered the opinion of the Court.

The defendants in the suit are the City of Phoenix, Arizona, and Schmidt-Hitchcock, Contractors, a private Arizona corporation. The purpose of the suit is to enjoin the city, its officers, and the contractor, from proceeding under a resolution adopted by the city directing the paving of a street on which the petitioner is an abutting owner. The improvement was to be made pursuant to a general statute of Arizona, Civil Code, 1913, Title VII, c. XIII, and the cost was to be defrayed by bonds issued pursuant to another general statute, Session Laws, 1919, c. 144. They provide that the cost of the improvement shall be assessed against abutting property according to the benefit received, and that a lien shall thereon arise for the amount’ assessed. The petitioner claims that the statutes make no proper provision for giving the property owner a hearing, and that therefore they contravene the due process clause of the Fourteenth Amendment to the Federal Constitution. Schmidt-Hitchcock objected to the calling of additional judges on the ground that the case did not fall within the purview of § 266, but was merely one in which it was sought to prevent a municipal corporation and its officers from proceeding with a municipal improvement.

2 Sperry & Hutchinson Co. v. City of •Tacoma, 190 Fed. 682; Cumberland Telephone & Telegraph Co. v. City of Memphis, 198 Fed. 955; Birmingham Water Works Co. v. City of Birmingham, 211 Fed. 497, affirmed, 213 Fed. 450; Calhoun v. City of Seattle, 215 Fed. 226; City of Des Moines v. Des Moines Gas Co., 264 Fed. 506. See also Land Development Co. v. City of New Orleans, 13 F. (2d) 898, reversed on the merits, 17 F. (2d) 1016.

3 City of Dallas v. Dallas Telephone Co., 272 Fed. 410.

4 Connor v. Board of Commissioners, 12 F. (2d) 789. In Silvey v. Commissioners of Montgomery County, 273 Fed. 202, 207, the court of three judges stated that “ they had a serious doubt whether the conservancy district officers are state officers in such a sense as to justify a hearing under section 266, Judicial Code.” Temporary injunctions were granted or denied by a single judge in Bush v. Branson, 248 Fed. 377, 385, 251 U. S. 182; Thomas v. Kansas City Southern Ry. Co., 277 Fed. 708, 261 U. S. 481 (see original papers); Cole v. Norborne Land District, 270 U. S. 45 (see original papers); and Missouri Pacific R. R. Co. v. Road Improvement District, 288 Fed. 502. While there was a hearing before three judges in Orr v. Allen, 245 Fed. 486, 248 U. S. 35; Lancaster v. Police Jury, 254 Fed. 179, 180; Columbia Investment Co. n . Long Branch Road District, 281 Fed. 342; St. Louis & Southwestern Ry. Co. v. Nattin, ante, p. 157; and Chicago, Milwaukee & St. Paul Ry. Co. v. Risty, 276 U. S. 567,

Congress realized that in requiring the presence of three judges, of whom one must be a Justice of this Court or a circuit judge, it was imposing a severe burden upon the federal courts.5 The burden was imposed because Congress deemed it unseemly that a single district judge should have power to suspend legislation enacted by a State. That the section was intended to apply only to cases of general importance is shown by the provision that notice of the hearing must be given to the Governor and the Attorney General—a precaution which would scarcely be deemed necessary in a suit -of interest only to a single locality. Support for that view is found also in the provision for a stay of the suit in case there shall have been brought in a court of the State a suit to enforce the statute or order. That the provisions of § 266 applied to cases of unusual gravity was recognized by Congress in 1925, when, in limiting the right of direct appeal from the District Court to this Court, it carefully preserved that right in cases falling within the section. Cases like the present are not of that character. If the temporary injunction had been issued, the result would have been merely to delay a municipal improvement. Though here the alleged unconstitutionality rests in the enabling statute, the case does not differ substantially from one where the sole claim is that a city ordinance is invalid. Moreover, the enabling act is not itself being enforced within the meaning of § 266. That act merely authorizes further legislative action to be taken by the city, as by the resolution here in question. It is that municipal action, not the statute of a State, whose “ enforcement, operation, or execution ” the petitioner seeks to enjoin.

it does not appear that the propriety of such a hearing was considered. See also Browning v. Hooper, 3 F. (2d) 160, 161; Smith V. Wilson, 273 U. S. 388.

5 See 45 Cong. Rec. 7254-7257.

DECISIONS PER CURIAM, FROM APRIL 10, 1928, TO AND INCLUDING JUNE 5, 1928, OTHER THAN DECISIONS ON PETITIONS FOR WRITS OF CERTIORARI.

No. 866. Hawthorne v . Texas and New Orleans R. R. Co. Error to the Court of Civil Appeals, First Supreme Judicial District, State of Texas. April 16, 1928. Per Curiam: The motion for leave to. proceed further herein in forma pauperis is denied for the reason that the Court, upon examination of the unprinted record, finds that this is not a case in which is drawn in question the validity of a treaty or statute of the United States and the decision is against its validity; or where is drawn in question the validity of a statute of the State of Texas, on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of its validity. The writ of error is therefore dismissed on the authority of § 237 (a) of the Judicial Code, as amended by the Act of.February 13, 1925, 43 Stat. 936, 937, for lack of jurisdiction. Jett Bros. Distilling Co. v. City of Carrollton, 252 U. S. 1, 5, 6. Treating the writ of error as an application for certiorari, the certiorari is denied.

The costs already incurred herein shall, by direction of the Court, be paid by the clerk from the special fund in his custody, as provided in the order of October 29, 1926. Mr. Charles A. Murphy for plaintiff in error. No appearance for defendant in error.

No. 748. Davis v . State of Ohio . Error to the Supreme Court of the State of Ohio. Argued April 10, 1928. Decided April 16, 1928. Per Curiam: Dismissed for want of jurisdiction, for the reason that the federal

Decisions Per Curiam, Etc. 277U.S.

question is frivolous, on the authority of Farrell v. O’Brien, 199 U. S. 89, 100; Toop v. Ulysses Land Co., 237 U. S. 580, 583; Piedmont Power & Light Co. v. Town of Graham, 253 U. S. 193, 195; Seaboard Air Line N. Padgett, 236 U. S. 68, 671; Quong Ham Wah Co. v. Industrial Commission, 255 U. S. 445, 448, 449. Mr. Joseph L. Stern, with whom Mr. John A. Cline was on the brief, for plaintiff in error. Messrs. Edward C. Turner and Carl F. Shuler were on the brief for defendant in error.

No. 696. Ricketts v . Allen . Error to the Supreme Court of the State of Ohio. Motion to dismiss submitted April 16, 1928. Decided April 23, 1928. Per Curiam: The motion to dismiss is granted for the reason that no federal question is presented, on the authority of Cuyahoga Power Co. n . Northern Realty Co., 244 U. S. 300, 303; California Powder -Works n . Davis, 151 U. S. 389, 393; Yazoo & Mississippi Valley R. R. Co. v. Brewer, 231 U. S.a245, 249; Municipal Securities Corporation n . Kansas City, 246 U. S. 63, 69. Messrs. A. McL. Marshall and Byron B. Harlan for the defendant in error, in support of the motion. Mr. Leonidas B. Mcllhenny for plaintiff in error, in opposition thereto.

No. 455. White River Gardens , Inc ., et al . v . State of Wash ingt on et al . Error to the Supreme Court of the State of Washington. Argued April 13, 16, 1928. Decided April 23, 1928. Per Curiam: Affirmed, on the authority of Terrace V. Thompson, 263 U. S. 197, 217, 223; Frick n . Webb, 263 U. S. 326, 332, 334; Webb v. O’Brien, 263 U. S. 313, 322. Mr. Frederic E. Fuller for plaintiffs in error. Mr. Howard A. Hanson for defendants in error.

No. 463. Montgomery Ward and Co . v . Emmer son , as Secre tary of State of the State of Illinoi s , et al . ; and

No. 464. Victor Chemic al Works v . Emme rson , as Secretary of State of the State of Illinois , et al . Appeals from the District Court of the United States for the Southern District of Illinois. Argued April 16, 17, 1928. Decided April 23, 1928. Per Curiam: Affirmed, on the authority of Cream of Wheat Co. v. Grand Forks, 253 U. S. 325, 328, .330; Roberts & Schaefer Co. v. Emmerson, 271 U. S. 50, 53, 54. Mr. Paul O’Donnell, with whom Mr. Silas H. Strawn was on the brief, for appellant in No. 463. Mr. Fletcher Lewis, with whom Mr. Paul O’Donnell was on the brief, for appellant in No. 464. Mr. Bayard L. Catron, with whom Mr. Oscar E. Carlstrom was on the brief, for appellees.

No. 496. The Carte r Oil Co . et al . v . Eli et al . On writ of certiorari to the Supreme Court of the State of Oklahoma. Argued April 18,19,1928. Decided April 23, 1928. Per Curiam: Dismissed for want of a federal question, in that the decision of the State Supreme Court could be sustained and was sustained on non-federal grounds. Hammond v. Johnston, 142 U. S. 73, 78; Eustis v. Bolles, 150 U. S. 361, 366, 370; Bilby v. Stewart, 246 U. S. 255, 257; New York ex rel. Doyle v. Atwell, 261 U. S. 590, 592; Richardson Machinery Co. v. Scott, 276 U. S. 128. Messrs. George S. Ramsey and Chester I. Long, with whom Messrs. George E. Chamberlain, Peter Q. Nyce, James A. Veasey, Gibbs L. Baker, and L. G. Owen were on the brief, for petitioners. Mr. Daniel H. Linebaugh, with whom Mr. Paul Pinson was on the brief, for respondents.

No. 552. City of New York v . Campbel l . Error to the Supreme Court of the State of New York. Argued

Decisions Per Curiam, Etc. 277U.S.

April 19, 1928. Decided April 23, 1928. Per Curiam: Dismissed, on the authority of Pawhuska n . Pawhuska Oil Co., 250 U. S. 394, 397, 399; Trenton v. State of New Jersey, 262 U. S. 182, 188, 192; Risty v. Chicago, Rock Island & Pacific R. R. Co., 270 U. S. 378, 390. Mr. Elliot S. Benedict, with whom Messrs. George P. Nicholson, J. Joseph Lilly, and George W. Cowie were on the brief, for plaintiff in error. Mr. H. Winship Wheatley for defendant in error.

No. 579. Cliff s Chemical Co . v . Wisconsin Tax Commis sion . Error to the Supreme Court of the State of Wisconsin. Argued April 20, 1928. Decided April 23, 1928. Per Curiam: Dismissed for want of a substantial federal question on the authority of Shulthis n . McDougal, 225 U. S. 561, 569; Hull v. Burr, 234 U. S. 712, 720; Norton v. Whiteside, 239 U. S. 144, 147. Mr. Wm. P. Belden, with whom Mr. E. H. Jaynes was on the brief, for plaintiff in error. Messrs. John W. Reynolds and Franklin E. Bump submitted for defendant in error.

No. 589. P. J. Mc Gowan & Sons , Inc . v . Van Win - kle , Attorney General of the State of Oregon , et al . Appeal from the District Court of the United States for the District of Oregon. Argued April 20, 1928. Decided April 23, 1928. Per Curiam: Affirmed, on the authority of Olin v. Kitzmiller, 259 U. S. 260, 263. Mr. E. S. Mc-Cord, with whom Mr. John H. Dunbar was on the brief, for appellant. Messrs. Alfred E. Clark, I. H. Van Winkle, and Willis S. Moore were on the brief for appellees.

No. 746. Tazew ell , Presidin g Judge of the Circui t Court of the State of Oregon for Multnomah County , v . State of Oregon , ex rel . Sulliv an . On writ of certiorari to the Supreme Court of the State of Oregon. May 14, 1928. Per Curiam: The Court, having considered the showing made upon the rule, and the concessions made by the respondent, finds that the case is moot, and accordingly vacates the judgment of the Supreme Court of the State of Oregon with directions to dismiss the case without prejudice and without costs, on the authority of Brownlow v. Schwartz, 261 U. S. 216, 218, 219; Board of Public Utility Commisioners v. Compania General, 249 U. S. 425, 426; Berry v. Davis, 242 U. S. 468, 470; Commercial Cable Co. v. Burleson, 250 U. S. 360, 363. Mr. Erskine Wood for petitioner. Mr. Wallace McCamant for respondent.

No. 912. Saltis v. The People of the State of Illi - nois . Appeal from the Supreme Court of the State of Illinois. Submitted April 23, 1928. Decided May 14, 1928. Per Curiam: The motion to dismiss the appeal is granted for want of jurisdiction in this Court for the reason that the federal questions sought to be presented are frivolous, on the authority of Farrell v. O’Brien, 199

Decisions Per Curiam, Etc. 277 U. S.

U. S. 89, 100; Toup v. Ulysses Land Co., 237 U. S. 580, 583; Piedmont Power & Light Co. v. Town of Graham, 253 U. S. 193, 195; Seaboard Air Line v. Padgett, 236 U. S. 668, 671; Quong Ham Wah Co. v. Industrial Commission, 255 U. S. 445, 448, 449. Proceeding under Rule 31, as amended April 2, 1927 (274 U. S. 766), it is ordered that the mandate be issued forthwith to the Supreme Court of the State of Illinois for further proceedings. Mr. Louis Greenberg for appellant. Mr. Oscar E. Carlstrom for appellee.

No. 877. Wysong v . The Peop le of the State of Califor nia . On petition for writ of certiorari to the District Court of Appeals, Second Appellate District, State of California. May 14, 1928. Per Curiam: Upon the answer of the petitioner to the order to show cause why the application for certiorari should not be denied, the Court denies the certiorari because of the lack of a substantial federal question shown in the record giving this Court jurisdiction. Shulthis v. McDougal, 225 U. S. 561, 569; Hull v. Burr, 234 U. S. 712, 720; Norton v. Whiteside, 239 U. S. 144, 147. Under Rule 31, as amended May 2, 1927 (274 U. S. 766), the Court directs that the mandate and notice of the ruling herein be issued forthwith to the District Court of Appeals of the State of California, Second Appellate District, Division Two, for further proceedings. Mr. James E. Fenton for petitioner. No appearance for respondent.

No. 965. Sarber v . Aetna Life Insurance Co . On petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit. May 21,1928. Per Curiam: The motion for leave to proceed further herein in forma pauperis is denied for the reason that the Court, upon examination of the unprinted record herein submitted, finds that there are no grounds upon which certiorari can be issued, application for which is therefore also denied. The costs already incurred herein shall, by direction of the Court, be paid by the clerkxfrom the special fund in his custody as provided by the order of October 29, 1926. Mr. Morris Bien for petitioner. No appearance for respondent.

No. —} original. Ex par te : In the Matter of Steidle , Admin ist rator . May 28, 1928. The motion of John Steidle for leave to file a petition for a writ of mandamus directed to the Hon. William Clark, Judge of the District Court of the United States for the District of New Jersey, and to the District Court of the United States for the District of New Jersey; and the further motion that a rule be entered and issued directed to Hon. William Clark, Judge of the District Court, and to the District Court, to show cause why a writ of mandamus should not issue against them, are denied. Mr. John Steidle, pro se.

5963°—29---- 37

No. 941. Grigg v . Unite d States ; and No. 953. Sligh v . Unite d States . See post, p. 582.

No. 782. Chip piannock Ceme tery Ass ’n v . City of Rock Island . June 4, 1928. Error to the Supreme Court of the State of Illinois. Per Curiam: The petition for certiorari ancillary to the writ of error in this case is denied, for the reason that the writ of error must be, and is hereby, dismissed for want of a substantial federal question on the authority of Shulthis v. McDougal, 225 U. S. 561, 569; Hull v. Burr, 234 U. S. 712, 720; Norton N. Whiteside, 239 U. S. 144, 147. Messrs. Merritt Starr, Albert L. Hopkins, and Richard S. Doyle for plaintiff in error. Mr. Ben T. Reidy for defendant in error.

PETITIONS FOR CERTIORARI GRANTED, FROM APRIL 10, 1928, TO AND INCLUDING JUNE 5, 1928.

No. 789. Unadilla Valle y Railw ay Co . v . Caldine , Administ rator . April 16, 1928. Petition for writ of certiorari to the Court of Appeals of the State of New York granted. Messrs. Benjamin S. Minor, H. Prescott Gatley, Arthur P. Drury, and Wirt Howe, for petitioner. Mr. Thomas B. Kattell for respondent.

No. 807. Unite d States v . Carver et al . April 23, 1928. Petition for writ of certiorari to the Court of Claims granted. Solicitor General Mitchell, Assistant Attorney General Galloway, and Mr. J. Frank Staley for the United States, Mr. Frank E, Scott for respondents.

No. 833. Cogen v. Unite d States . April 23, 1928. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Mr. Sanford H. Cohen for petitioner. Solicitor General Mitchell, Assistant Attorney General Mabel Walker Willebrandt, and Mr. John J. Byrne for the United States.

No. 836. Reinec ke , Collector of Internal Revenue , v. The Northern Trust Co ., Execut or . April 23, 1928. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Solicitor General Mitchell, and Messrs. Clarence M. Charest and T. H. Lewis for petitioner. Mr. J. F. Dammann, Jr., for respondent.

No. 837. Prela , Trading as Selwell Blouse Co ., v . Hubsh man , Trustee . April 23, 1928. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Messrs. Archibald Palmer and Max L. Rosenstein for petitioner. Mr. George L. Cohen for respondent.

No. 838. Oriel et al . v . Russell , Truste e . April 23, 1928. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Mr. Hugo Levy for petitioners. Mr. William E. Russell, pro se.

No. 842. Seaboard Air Line Ry . Co . v . Johnson . April 23, 1928. Petition for writ of certiorari to the Supreme Court of the State of Alabama granted. Messrs. Robert E. Steiner, Benjamin P. Crum, and Leon Weil for petitioner. Messrs. Wm. W, Hill and Richard T. Rives for respondent.

No. 851. The New York , Chicago and St . Louis R. R. Co. v . Granfell . April 23, 1928. Petition for writ of certiorari to the Court of Appeals for the Eighth Judicial District, State of Ohio, granted. Mr. W. T. Kinder for petitioner. Mr. R. B. Newcomb for respondent.

No. 852. The State Highw ay Commis si on of Wyo - ming et al . v. Utah Construc tion Co . April 23, 1928. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit granted. Mr. Wm. 0. Wilson for petitioners. Messrs. John W. Lacey and Herbert Lacey for respondent.

No. 894. Unite d States v . William s . May 14, 1928. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Solicitor General Mitchell and Assistant Attorney General Galloway for the United States. Mr. William Kaufman for respondent.

No. 449. Jordan , Secre tary of State , et al . v . Tashiro et al . May 14, 1928. Petition for writ of certiorari to the Supreme Court of the State of California granted. Mr. U. S. Webb for petitioners. Mr. J. Marion Wright for respondents.

No. 865. Wright , Adminis trat or , v . Grand Trunk Railr oad Co . May 14, 1928. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit granted. Mr. Thomas A. E. Weadock for petitioner. No appearance for respondent..

No. 858. Lash ’s Produc ts Co . v . Unite d States . May 28, 1928. Petition for writ of certiorari to the Court of Claims granted. Messrs. A. R. Serven and Richard D. Daniels for petitioner. Solicitor General Mitchell and Assistant Attorney General Galloway for the United States.

No. 907. State Trus t & Savings Bank v . Dunn , Trust ee . May 28, 1928. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit granted. Mr. W. J. Rutledge, Jr., for petitioner. No appearance for respondent.

No. 945. Mc Donal d v . Unite d States . May 28,1928. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit granted. Messrs. Wm. K. Jackson and J. Harry Covington for petitioner. Solicitor General Mitchell, Assistant Attorney General Luhring, and Mr. Harry S. Ridgely for the United States.

No. 946. Michi gan Central R. R. Co . v . Mix et al . May 28, 1928. Petition for writ of certiorari to the Supreme Court of the State of Missouri granted. Messrs. Charles A. Houts and J. W. Dohany for petitioner. No appearance for respondents.

No. 941. Grigg v . United States ; and

No*. 953. Sligh v . United States . On petitions for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit. June 4, 1928. These are applications for certiorari in actions instituted in the United States District Court for the District of Arizona to recover on policies of war-risk insurance. There being then no applicable federal statute of limitations, the United States, among other defenses, pleaded the statute of limitations of the State of Arizona. Judgments were entered in the District Court for the plaintiffs. The United States sued out writs of error to the Circuit Court of Appeals. That court held the state statute of limitations was applicable and barred the actions and reversed the judgments of the District Court.

On May 29, 1928, there was passed and approved an act of Congress entitled “An act to amend the world war veterans act, 1924” (H. R. 13039, 70th Cong., 1st sess.). That act amends section 19 of the world war veterans act and allows suit to be brought on policies of war-risk insurance within six years after the right accrues or within one year from the date of the approval of the amendatory act. It provides also:

As a result of this legislation, the defense of the statute of limitations of Arizona is no longer available to the United States in these two cases. In each case the assignments of error in the Circuit Court of Appeals passed only on the defense of the statute of limitations and did not find it necessary to consider the other questions.

The United States now consents that writs of certiorari may be issued forthwith in these cases, that the judgments entered in the United States Circuit Court of Appeals for the Ninth Circuit be vacated and set aside, and that the cases be remanded to the United States Circuit Court of Appeals for the Ninth Circuit for further proceedings and that the mandates issue forthwith.

The Court enters the order accordingly. Mr. Loy J. Molumby for petitioners. Solicitor General Mitchell and Assistant Attorney General Farnum for the United States.

No. 930. Nielsen , Adminis trator , v . Johns on , Treas urer of State . June 4, 1928. Petition for writ of certiorari to the Supreme Court of the State of Arkansas granted. Mr. Nelson Miller for petitioner. Mr. John Fletcher for respondent.

No. 1007. Lovelan d , Execu tor , et al . v . Unite d States . June 4, 1928. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Messrs. Shelton Pitney and John R. Hardin, Jr., for petitioners. Solicitor General Mitchell and Assistant Attorney General Farnum for the United States.