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the Judicial Code (Act March 3, 1911, c. 231, 36 | Petition for a writ of certiorari to the United Stat. 1156), as amended by the act of September States Circuit Court of Appeals for the Fifth 6, 1916, chapter 448, § 2, 39 Stat. at L., 726 Circuit denied. (Comp. St. 1916, § 1214).
(248 U. S. 547)
No. 350. AMERICAN PACKING COMPA
NY, plaintiff in error, v. Paul LUKETA and
PER CURIAM. Dismissed for want of jurisdiction upon the authority of section 237 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1156), as amended by the act of September 6, 1916, chapter 448, § 2, 39 Stat. at L., 726 (Comp. St. 1916, § 1214).
(248 U. S. 583)
(248 U. S. 583)
No. 772. Charles T. WILLIAMS, petitioner, v. The UNITED STATES of America. Jan. 7, 1919. Petition for a writ of certiorari to the United For opinion below, see 254 Fed. 52. States Circuit Court of Appeals for the Fifth Circuit denied.
(248 U. S. 584)
No. 773. PONTIAC, OXFORD & NORTHERN RAILROAD COMPANY et al., petitioners, v. The MICHIGAN RAILROAD COMMISSION et al. Jan. 7, 1919. For opinion below, see 203 Mich. 258, 168 N. W. 927. Petition for a writ of certiorari to the Supreme Court of the State of Michigan denied.
(248 U. S. 584) No. 781. BOSCH MAGNETO COMPANY, No. 752. Joseph P. O'TOOLE et al., petition-petitioner, v. Samuel W. RUSHMORE. ers, v. Robert L. MEYSENBURG et al. Jan. 7, 1919. For opinion below, see 251 Fed. 191. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied.
(248 U. S. 583)
No. 762. Charles FAISON et al., petitioners, v. Forrest ADAIR et al. Jan. 7, 1919. For opinion below, see 96 S. E. 871. Petition for a writ of certiorari to the Supreme Court of the State of Georgia denied.
(248 U. S. 583)
No. 771. James S. YEATES, petitioner, v. The UNITED STATES of America. Jan. 7, 1919. For opinion below, see 254 Fed. 60.
7, 1919. For opinion below, see 255 Fed. 465.
(248 U. S. 595)
COMPANY, Limited, to the use of Elmer E.
(248 U. S. 405)
COCHNOWER v. UNITED STATES.
was serving and that from which he was reduced by the Secretary, in contest of the Secretary's power. From the judgment of
(Argued and Submitted Dec. 16, 1918. Decided the court (51 Ct. Cl. 461) this appeal was
Jan. 13, 1919.)
Cochnower's petition shows that he served in the customs service in various capacities
1. OFFICERS 3-Creation of OFFICE-LEG- and at various salaries, which he details, ISLATIVE POWER.
Creation of offices and the assignment of their compensation is a legislative function. 2. OFFICERS 94-FIXING COMPENSATIONLEGISLATIVE POWER.
Delegation of the legislative function of fixing the compensation of officers must have clear expression or implication.
3. CUSTOMS DUTIES 60-COMPENSATION OF INSPECTORS CHANGE STATUTE "INCREASE" AND "FIX."
Act March 4, 1909, § 2, authorizing the Secretary of the Treasury to "increase" and "fix" compensation of inspectors of customs, as he may think advisable, not to exceed a certain amount, gives no power to decrease compensation; "fix" being controlled by "increase."
[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Fix; Increase.]
Appeal from the Court of Claims.
Claim by James H. Cochnower against the United States. Petition was dismissed by the Court of Claims (51 Ct. Cl. 461), and plaintiff appeals. Reversed and remanded.
Messrs. William E. Russell, of New York City, and L. T. Michener, of Washington, D. C., for appellant.
Messrs. Assistant Attorney General Thompson and Harvey D. Jacob, of Washington, D. C., for the United States.
from 1879 to June 13, 1908, when he was appointed day inspector at $5 per diem, at which rate he served until July 1, 1910, when he was reduced to $4 per diem, at which rate he is now serving.
The case is one simply of statutory construction and depends primarily on the words "increase and fix" which we have italicized in our quotation of section 2. In opposition to the Court of Claims' view of them, counsel for Cochnower have indulged in a wide range and have been elaborate in citation and review of prior legislation and the decisions of the courts upon it. Counsel for the *government have confined themselves to narrower limits and even urge that the argument based on "long continued and contemporaneous construction *** is irrelevant for the reason that section 8 of the said Act of 1909 repealed all laws and parts of laws inconsistent" with it, and that its obvious purpose was to relieve the Secretary from whatever construction might have been put upon his acts or those of his predecessors under previous legislation. In other words, as we understand the government, the Act of 1909 is to stand by itself and was intended to be and must be taken as the measure of the Secretary's power after its enactment; that it could not be limited or opposed by prior legislation, for that had been repealed; nor by prior practices, for they had been superseded, and a new rule of authority and practice pro
*Mr. Justice MCKENNA delivered the opin- nounced. We may accept this as the gage of ion of the Court.
Appeal from the Court of Claims involving the construction of an act of Congress passed March 4, 1909, c. 314, 35 Stat. 1065, entitled "An act fixing the compensation of certain officials in the custom service, and for other purposes." This case is concerned particularly with section 2, which provides as follows: "That the Secretary of the Treasury be, and he is hereby, authorized to increase and fix [italics ours] the compensation of inspectors of customs, as he may think advisable, not to exceed in any case the rate of six dollars per diem, and in all cases where the maximum compensation is paid no allowance shall be made for meals or other expenses incurred by inspectors when required to work at unusual hours."
The Court of Claims construed the provision as authorizing the Secretary to decrease the salary of inspectors and dismissed Cochnower's petition that presented a claim for the difference between the salary at which he
the government and consider how far the act is a grant of authority to the Secretary.
[1-3] Primarily we may say that the creation of offices and the assignment of their compensation is a legislative function. Glavey v. United States, 182 U. S. 595, 21 Sup. Ct. 891, 45 L. Ed. 1247; United States v. Andrews, 240 U. S. 90, 36 Sup. Ct. 349, 60 L. Ed. 541. And we think the delegation of such function and the extent of its delegation must have clear expression or implication. The Act of 1909 does give a power to the Secretary, but the power is not absolute; it is expressed with qualification. The government's contention makes it absolute, having no limit but the discretion of the Secretary. The contention gives the qualification no purpose, makes it simply a confusion or clumsiness of words. But why are they to be so regarded? Congress did not have to disguise its purpose or furtively accomplish it. And if Congress accidentally fell into the equivocal, the resulting uncertainty
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
laria Cordova. Judgment for plaintiff, and defendant brings error. Writ dismissed.
Mr. F. G. Morris, of El Paso, Tex., for plaintiff in error.
Messrs. Walter B. Grant, of Boston, Mass., and T. J. Beall, of El Paso, Tex., for de fendant in error.
*Mr. Justice HOLMES delivered the opinion of the Court.
must be resolved by the application of the simple rule of considering all the words of a statute in their proper dependence. Reverting then to the statute, we discover that it was at pains to *express clearly the power to "increase." If it had been intended to give the power to "decrease"-an accurately opposite power-it would have been at equal pains to have explicitly declared it; and thus the unlimited discretion in the Secretary contended for by the government would have been This is an action of trespass to try title simply and directly conferred and not left to to land in Texas lying between the present be guessed from a circumlocution of words or and former bed of the Rio Grande. The. to be picked out of a questionable ambiguity. plaintif (the present defendant in error) alWe say questionable ambiguity because its ex-leged that his testator and those under whom istence can be readily disputed. If it exists at the latter claimed had held the land under all it exists in the word "fix" in the collocation color of title from the State of Texas for "fix the compensation." But the instant sig- the several statutory periods of limitation, nification of the word is the opposite of and that the defendant unlawfully entered change it declares stability and confirmation when the plaintiff had the legal title in pos-and, giving it this sense, it is the natural session as devisee. The jurisdiction of the complement of the power to increase, estab-District Court was based upon diversity of lishes the increase (fixes it) thereafter as the legal compensation. And this, we think, is the proper construction, direct, intelligible and adequate.
It is, however, urged that the act implies minimum and maximum salaries, especially of inspectors, and also the power of classification of inspectors. We are not called upon to dispute it. The fact or the power does not enlarge the authority to increase salaries into an authority to decrease them. The power given can otherwise be accommodated. We think, therefore, that the Court of Claims erred in dismissing the petition and its judgment is reversed and the case remanded for further proceedings in conformity with
citizenship. The defendant pleaded that the plaintiff's title depended upon whether the land was within the United States, and that that depended upon whether the Rio Grande, established as the boundary in 1852, had changed its channel in such a way as to continue to be the boundary or not-the land in question having been upon the Mexican side of the river in 1852 and now being on the side of the United States. The defendant went on to allege that while the United States now exercises a de facto jurisdiction over the territory where the land lies, it does so with the admission by treaty and diplomatic correspondence that the boundary is unsettled, and that "the treaties and acts of the respective governments placing said boundary disputes within the jurisdiction of certain special authorities, of which this court must take judicial notice, must necessarily have deprived the courts of each of said republics of jurisdiction," etc. On this ground it was prayed that the Court either Decided Jan. 13, dismiss the case or stay the trial until the boundary should be established. Subject to this the defendant pleaded not guilty and the ten years statute of limitation of Texas. The plaintiff demurred to the plea to the jurisdiction as showing on its face that the United States and Texas were exercising de facto jurisdiction over the land; set up that it was agreed between the United States and Mexico that Mr. Wilbur Keblinger should decide what lands in the disputed territory were proper subjects of litigation in the courts of the United States and of Texas, that he had decided this land to be such, and that his finding had been acquiesced in by In Error to the District Court of the Unit- the Government of the United States always both governments. He further alleged that
(248 U. S. 413)
CORDOVA v. GRANT. (Submitted Dec. 18, 1918.
COURTS 385(6)-SUPREME COURT-ERROR
ed States for the Western District of Texas.
Action by Walter B. Grant, sole executor of Frank B. Cotton, deceased, against Cande
had claimed and now claims the land as belonging to the United States, and he denied all the defendant's allegations of fact.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
It was agreed that the patents from the, boundary commission with exclusive jurisState of Texas under which the plaintiff diction and so had prohibited the Courts claimed bounded the grants on the Rio from dealing with the question, neither the Grande, and that if the additions now in con- validity nor the construction of any treaty troversy had been made by accretion, they was drawn in question; or if an attenuated belonged to the plaintiff. It also was ad- question can be discovered it is no more mitted, and agreed that the Court in decid- than formal. A commission sat under the ing upon the demurrer might notice, that the last of the treaties and its action was reUnited States, the State of Texas and the jected by the Government as abortive. As County and City of El Paso were then and the Government had withdrawn its suggesfor many years before exercising govern- tion of comity so far as the present case ment control and political jurisdiction over is concerned, there was no reason why the the property in question and that the United Court should not proceed to trial, and there is States and *State had enforced their laws no reason why the present writ should not over the whole of the same. It was agreed be dismissed as it was in Warder v. Loomis, further that the Court might take notice of 197 U. S. 619, 25 Sup. Ct. 799, 49 L. Ed. 909, the correspondence between the Secretary of and in Warder v. Cotton, 207 U. S. 582, 28 State, the Mexican Ambassador and Keb- Sup. Ct. 259, 52 L. Ed. 350. It follows that linger, the opinion of the Boundary Commis- some other questions argued cannot be dission, and the action of the United States cussed. thereon. It appeared from the documents that the United States, while admitting that the boundary line was in question between the two countries, never had admitted any derogation of its de facto jurisdiction over the tract; that it had suggested to the Federal Courts that as a matter of comity they should not put into execution writs of ejectment, etc., against persons alleging Mexican titles, but that it found it necessary to limit this comity so as to exclude from it persons who had no prima facie Mexican titles in order to stop occupation by squatters who were taking advantage of the Government's forbearance. Keblinger was appointed to determine what persons showed a prima facie title. He decided against the defendant and with the sanction of the Government informed the plaintiff that the Government would not object if he should proceed.
The District Court sustained the demurrer to the plea to the jurisdiction and the only color of right to bring the case to this Court by direct appeal consists in a suggestion that the construction of a treaty is involved.
The decision of a court that it has jurisdiction on the ground taken by the demurrer simply means that the Court finds the Government in fact asserting its authority over the territory and will follow its lead. does not matter to such a decision that the Government recognizes that a foreign power is disputing its right and that it is making efforts to settle the dispute. The reference to Keblinger and his finding are important only as showing that there is no present requirement of comity to refrain from exercising the jurisdiction which in any event the Courts possess. Jurisdiction is power and matter of fact. *The United States has that power and the Courts may exercise their portion of it unless prohibited in some constitutional way.
If the passage quoted from the answer is sufficient to open the contention that treaties had contracted for the establishment of a
Writ of error dismissed.
(248 U. S. 446)
SOUTHERN PAC. CO. v. STEWART. Decided Jan. 13, (Submitted Dec. 20, 1918.
1919.) No. 89.
1. CARRIERS 218(3)—LIMITING LIABILITY— NOTICE OF CLAIM.
Stipulation in contract of interstate shipment of cattle, conditioning carrier's liability for injuries on written notice of claim in 10 days after unloading, is valid.
218(11)-NOTICE OF CLAIM—
Circumstances as to knowledge of injuries by carrier or its agent, held not to show waiver of written notice of claim within 10 days after unloading, stipulated in contract of interstate shipment of cattle as condition of carrier's liability for injuries.
Mr. Justice McKenna and Mr. Justice Clarke dissenting.
In Error to the United States Circuit Court of Appeals for the Ninth Circuit.
Action by Frank R. Stewart against the Southern Pacific Company. Judgment for plaintiff was affirmed by the Circuit Court of Appeals (147 C. C. A. 630, 233 Fed. 956), and defendant brings error. Reversed and remanded.
See, also, 245 U. S 359, 562, 38 Sup. Ct. 130, 203, 62 L. Ed. 345, 472.
*Messrs. Henley C. Booth, of San Francisco, Cal., William R. Harr, Charles H. Bates, and C. F. R. Ogilby, all of Washington, D. C., and William F. Herrin, of San Francisco, Cal., for plaintiff in error.
Messrs. P. H. Hayes and Thomas Armstrong, Jr., both of Phoenix, Ariz., for defendant in error.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
Mr. Justice McREYNOLDS delivered the | died many days after their arrival at Phoopinion of the Court. nix.
Stewart sued for damages sustained in He further alleged that about October 21, transit by dairy cows delivered July 1, 1913, 1913, after repeated efforts to determine the to plaintiff in error for shipment over its damages, shipper made *demand in writing railroad from California to Phoenix, Arizona, for $1,570 and on December 15th, as soon as under a "live stock shipping order contract he was able to ascertain nature and extent of and bill of lading" signed both by himself the injuries, made written demand for $2,695; and it, which, among other things, provided: that the carrier had repeatedly waived re"Second party [the shipper] hereby further quirement for demand within ten days by agrees that in case any loss or damage shall recognizing the shipper's right to recover have been sustained for which first party is something and attempting to settle and comliable, demand or claim for such loss or damage promise; and that subsequent to October will be made by second party on the freight 21st carrier through its claim agents had claim agent of first party in writing, within ten twice attempted to adjust with the shipper Ndays after unloading of the live stock; and that the loss and damage sustained.
in event of failure so to do all claims for loss or damage in the premises are hereby expressly waived, released and made void, and it is also expressly agreed by second party that the amount to be by him claimed for each animal as described herein, so lost or damaged, shall be adjusted on basis of value at time and place of shipment, not exceeding the declared value as hereinbefore set forth, and on which declared value the rate or rates of transportation hereinbefore named by first party are based, and in no event is there to be any recovery from first party or its lessors for any loss of or damage to said live stock, from whatsoever cause arising in excess of the declared value herein
before set forth."
As one ground of defense the company relied upon non-compliance with the abovequoted provision. In reply the shipper alleged and at the trial introduced evidence tending to establish facts and circumstances as follows:
He admitted that the cattle were unloaded and received by him July 5, 1913, at Phoenix and that he made no written claim for loss or damage upon any agent of the carrier within ten days thereafter. But he denied that he could have given notice of his claim within such time or that he had waived or released it.
He alleged that on July 4, 1913, and subsequently the carrier had full knowledge of injuries sustained by the cattle; that they were unloaded into its stock-pens at Yuma July 4, 1913, and prior to reloading five died; that they remained in the stock-pens there without shelter or protection nine hours, under care of carrier's agents; that upon reloading it provided an additional car for sick and crippled cows; that at various points en route the train officials received inquiries from other railroad officials as to conditions and after arrival at Phoenix one of the crippled animals remained several days in a car; that immediately after unloading at Phoenix and daily until October 21, shipper and the railroad agents were in communication relative to damages sustained; that the nature and extent of injuries to cows which arrived at destination alive made it impossible to determine within ten days the extent of damage sustained; and that a number of cattle
The trial court refused to direct a verdict
in defendant's favor. Among other things, it said to the jury:
"I charge you as a matter of law that if you believe the defendant or its agents or employés did know that five or more of the cattle died while in transit, and also believe that the defendant was negotiating with the plaintiff for a settlement of his claim, and that the defendant knew that the cattle had been injured as alleged in the plaintiff's complaint, then the plaintiff was relieved and released from the giving of such notice of loss or injury within ten days as required by the said provisions of said con
The Circuit Court of Appeals affirmed a judgment entered upon verdict for the shipper July 3, 1916 (233 Fed. 956, 147 C. C. A. 630), and, in the course of its opinion, said:
"There was proof tending to sustain all the facts so alleged in the [plaintiff's] reply. We think, therefore, that the court below committed no error in instructing the jury that in view of the evidence, if they found it to be true, the plaintiff was relieved and released from giving notice within the ten days."
We have jurisdiction and the motion to dismiss based upon another view is denied. See Southern Pacific Co. v. Stewart, 245 U. S. 359, 38 Sup. Ct. 130, 62 L. Ed. 345, and 245 U. S. 562, 38 Sup. Ct. 203, 62 L. Ed. 472.
[1, 2] Considering the principles and conclusions approved by our opinions in St. Louis, I. Mt. & So. Ry. Co. v. Starbird, 243 U. S. 592, 37 Sup. Ct. 462, 61 L. Ed. 917, and Erie R. R. Co. v. Stone, 244 U. S. 332, 37 Sup. Ct. 633, 61 L. Ed. 1173 (announced since the judgment below), and the cases therein cited, no extended discussion is necessary to show that upon the facts here disclosed the stipulation between the parties as to notice in writing within ten days of any claim for damages was valid. And we also think those opinions make it clear that the circumstances relied upon by the shipper are inadequate to show a waiver by the carrier of written notice as required by the contract.
The trial court erred in giving to the jury the instruction quoted above; and it should