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ta are so much in excess of cost of inspection as, ed for by the act, or which will ignite at a to constitute law a revenue measure, invalid as temperature below 120° Fahrenheit. A burden on interstate commerce, Supreme Court of United States takes judicial notice that in- method is prescribed for making this "fire spection fee on oil and gasoline in tank cars was test" and for determining the gravity of such twice reduced by the Legislature. oils, and the results must be stenciled on each container of oil.

4. CONSTITUTIONAL LAW 48-OIL INSPECTION FEE-VALIDITY OF LAW-JUDICIAL INQUIRY.

In view of rapid increase in use of gasoline, and action of Legislature of Minnesota in reducing fee for inspection of oils and gasoline in tank cars, the federal Supreme Court will not impute a purpose other than to conform to requirements of federal Constitution in enactment of Gen. St. Minn. 1913, §§ 3619-3632, exacting fees for inspection of oils and gasoline, claimed to be invalid as revenue measure and burden on interstate commerce.

5. COURTS 399(2)-ERROR TO STATE COURT -FINDING OF FACT-CONCLUSIVENESS.

In suit attacking constitutionality of state statute whereunder fees for inspection of oils and gasoline were exacted, claim being that act was revenue measure, and burden on interstate commerce, finding of fact by trial court of state, approved by its Supreme Court, is accepted as conclusive by Supreme Court of United States. In Error to the Supreme Court of the

State of Minnesota.

Suit by the State of Minnesota against the Pure Oil Company. From judgment for the State, defendant appealed to the Supreme Court of the State, which affirmed (134) Minn. 101, 158 N. W. 723), and defendant brings error. Affirmed.

Messrs. Nathan H. Chase and William A. Lancaster, both of Minneapolis, Minn., and Clifford Thorne, of Chicago, Ill., for plaintiff

in error.

Egbert S. Oakley and Lyndon A. Smith, both of St. Paul, Minn., for the State of Minnesota.

*Mr. Justice CLARKE delivered the opinion of the Court.

In this case the state of Minnesota sued the plaintiff in error, an extensive dealer in oils, to recover fees, which were charged for the inspection of oils and gasoline, between February 1, 1913, and April 25, 1915. The judgment of the state Supreme Court (134 Minn. 101, 158 N. W. 723) affirming that of the trial court in favor of the state, is before us for review on writ of error.

*The inspection involved was provided for by chapter 502 of the General Laws of the State of Minnesota for the year 1909, the title of which is:

"An act relating to the inspection of petroleum products, the appointment of chief inspector of oils and deputy inspectors, manner of inspection, establishing fees for inspection and salaries of inspectors, prohibiting the sale of adulterated oils, and providing penalties for violation thereof"

-and the title of the chapter in which the original act is embodied in the General Statutes of the State is "Inspection of Oils" (General Statutes of Minnesota 1913, c. 20). Section 3622 provides that no person shall sell or offer for sale in the state illuminating oil which has not been inspected as provid

Section 3625 deals with gasoline, and requires that it shall be subject to the same inspection and control as is prescribed for illuminating oils, "except that the inspectors are not required to test it other than to ascertain its gravity."

All containers of gasoline must be labeled conspicuously with the word "Gasoline," the gravity must be stenciled thereon, and it is made unlawful to sell or offer it for sale until inspected and approved. Provision is also made (section 3626) for the inspection of gasoline "receptacles" to keep them "free from water and all other foreign substances" and the sale of "adulterated" gasoline is prohibited (section 3627). viously this is, in form, a not unusual type of inspection law.

Ob

The findings of fact by the trial court inIclude the following:

During the period under discussion the state inspected 9,914 barrels of oil and 81,998 barrels of gasoline owned by the plaintiff in error, all of which were brought info Minnesota from other states by common carriers in tank cars, which were held at the place of business of the plaintiff in error until inspected, and all were unloaded from the cars in which they arrived and were held for general sale and distribution. And this in terms:

*

*

"That the testing of gasoline in the manner provided by the statute indicates to the public the degree of safety of such gasoline, and has a fair relation to the quality and value thereof. That such inspection protects the community, as applied to sales of gasoline in Minnesota, from frauds and impositions, and advises, informs, and warns the public of the volatile character of said gasoline and the relative degree of care to be exercised in handling, storing, and using the same."

On the case thus stated it is claimed that the Supreme Court of Minnesota erred in refusing to hold:

First, that the inspection fees imposed were so excessive in amount as to render the act a revenue rather than an inspection measure and that as such it offends against section 8, article 1, of the federal Constitution, as an attempt by the state to regulate interstate commerce; and

Second, that to the extent that the act applies to gasoline it is not a valid exercise of the police powers of the state, because it does not serve to protect or safeguard the health, morals or convenience of the public, and therefore offends against the Fourteenth Amendment to the federal Constitution, by depriving the plaintiff in error of its property without due process of law to the extent of the fees which it in terms exacts.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The principles of law applicable to the de- rendered." Foote v. Maryland, 232 U. S. cision of the case thus before us are few, 494, 505, 34 Sup. Ct. 377, 379 (58 L. Ed. 698); and they are perfectly settled by the deci- Western Union Telegraph Co. v. New Hope, sions of this court. 187 U. S. 419, 23 Sup. Ct. 204, 47 L. Ed. 240.

The findings of fact give the following statement of receipts and expenses under the law assailed, from and including the year 1909, in which it was passed, to April 30, 1915, which includes the last day covered by the claim in suit, viz.:

[1] In the exercise of its police power a state may enact inspection laws, which are valid if they tend in a direct and substantial manner to promote the public safety and welfare or to protect the public from frauds and imposition when dealing in articles of general use, as to which Congress has not made any conflicting regulation, and a fee reasonably sufficient to pay the cost of such inspection may constitutionally be charged, even though the property may be moving in interstate commerce when inspected. Patapsco Guano Co. v. North Carolina Board of 1909 Agriculture, 171 U. S. 345, 357, 358, 361, 18 1910 Sup. Ct. 862, 43 L. Ed. 191; New Mexico V. Denver & Rio Grande R. R. Co., 203 U. S. 38, 27 Sup. Ct. 1, 51 L. Ed. 78; Asbell v. State of Kansas, 209 U. S. 251, 28 Sup. Ct. 485, 52 L. Ed. 778, 14 Ann. Cas. 1101; Patterson v. Kentucky, 97 U. S. 501, 504, 24 L. Ed. 1115; Savage v. Jones, 225 U. S. 501, 525, 32 Sup. Ct. 715, 56 L. Ed. 1182.

Specifically, state laws providing for the inspection of oils and gasoline have several times been recognized as valid by this court. Patterson v. Kentucky, 97 U. S. 501, 24 L. Ed. 1115; Red "C" Oil Mfg. Co. v. Board of Agriculture of North Carolina, 222 U. S. 380, 32 Sup. Ct. 152, 56 L. Ed. 240; Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159, 29 Sup. Ct. 270, 53 L. Ed. 453.

1911

1912

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July 31, 1914 to

Apr. 30, 1915

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1913

1914

[3, 4] This statement of expenses, however, does not include any charge for offices for the Oil Department, which were in the state capitol, for the services of the state auditor and treasurer in keeping accounts and making collections, for legal counsel, and for services of chemists, or for the Public Examiner's Department, these not being susceptible of exact determination. The reduced percentage of expenses to receipts in several of the years was obviously due to the rapid expansion in the use of gasoline without a corresponding increase in the expenses of administration. This percentage, however, was rising in 1915 and doubtless has increased greatly since, under war conditions. We take judicial notice also of the fact that in 1915 the inspection *fee on oil and gasoline in tank cars was reduced by the Legislature from 10 to 7 cents and in 1917 from 7 to 5 cents. It was obviously impossible for the state Legislature to determine accurately in advance either what the receipts from or the cost of inspection would [2] Plainly the application of the princi- be, and having regard to the period of rapid ples thus stated leaves open for considera- increase in the use of gasoline, through tion only the question as to whether the in- which the country was passing in the years spection charge is so excessive as to render under consideration and to the action of the the act a revenue measure, as the plaintiff Legislature in reducing the fee, we cannot in error claims that it is, and not an inspec- consent to impute to that body a purpose tion law enacted in good faith to promote other than to conform to the requirements the public safety and prevent fraud and of the Constitution when enacting this legisimposition upon the users of oil and gaso-lation.

But, if such inspection charge should be obviously and largely in excess of the cost of inspection, the act will be declared void, because constituting, in its operation, an obstruction to and burden upon that commerce among the states the exclusive regulation of which is committed to Congress by the Constitution. Postal Telegraph-Cable Co. v. Taylor, 192 U. S. 64, 24 Sup. Ct. 208, 48 L. Ed. 342; Foote v. Stanley, Comptroller of Maryland, 232 U. S. 494, 504, 508, 34 Sup. Ct. 377, 58 L. Ed. 698.

line. In the consideration of this question The conclusion thus arrived at sustains the discretion of the Legislature in determin- the validity of the state law as an inspecing the amount of the inspection fee will not lightly be disturbed. Its determination is prima facie reasonable, and the courts will not "enter into any nice *calculation as to the difference between cost and collection; nor will they declare the fees to be excessive unless it is made clearly to appear that they are obviously and largely beyond what is needed to pay for the inspection services

tion measure and renders it unnecessary to consider the much argued question as to whether or not the oil and gasoline in question were in interstate transit when inspected. As an inspection law, under the decisions cited, the act is validly applicable, alike whether the property was in intra or in inter state commerce when inspected.

[5] Neither is it necessary to consider

whether the evidence sustains the contention | 7. MONOPOLIES 28
that the inspection of gasoline provided for
by the act was of a character such that it
did not serve to promote the public safety or
to protect the community against fraud and
imposition. The finding of fact by the trial
court, approved by the Supreme Court of the
state, is accepted as conclusive by this court.
Northern Pacific Railway Co. v. State of
North Dakota, 236 U. S. 585, 593, 35 Sup.
Ct. 429, 59 L. Ed. 735, L. R. A. 1917F, 1148,
Ann. Cas. 1916A, 1.

It results that the judgment of the Supreme Court of Minnesota must be affirmed.

(248 U. S. 55)

BUCKEYE POWDER CO. v. E. I. DUPONT
DE NEMOURS POWDER CO. et al.
(Argued April 30 and May 1, 1917. Ordered
for Reargument June 10, 1918. Reargued
Nov. 13, 1918. Decided Dec. 9, 1918.)

No. 7.

1. APPEAL AND ERROR 1039(9)—HARMLESS ERROR-ELECTION BETWEEN CAUSES OF AC

TION.

Plaintiff, in an action for damages under Sherman Anti-Trust Act, § 7 (Comp. St. 1916, § 8829), cannot complain of the granting of motion at the end of the trial that it elect whether to rely on section 1 or section 2 of the act (Comp. St. 1916, 88 8820, 8821); it, in then going through the form of electing to rely on acts done contrary to section 2, simply adhering to the interpretation of its declaration it had accepted, when a motion to strike it out as duplicitous was made and overruled and had endeavored to maintain throughout the trial.

2. APPEAL AND ERROR 1033(5)—HARMLESS ERROR-FAVORABLE INSTRUCTION.

Plaintiff may not complain of instruction allowing it to recover for injury from unsuccessful as well as successful attempt to monopolize. 3. APPEAL AND ERROR 1061(4)-HARMLESS ERROR-DIRECTING VERDICT.

Directing verdict for certain defendants was harmless; no acts aimed at plaintiff having been done by them, and the jury having exonerated the other defendant with whom they were alleg

ed to have conspired.

4. MONOPOLIES 28-ACTION FOR DAMAGES -EVIDENCE.

Decrees in a proceeding by the government finding a company guilty under the Sherman Anti-Trust Act were not, prior to Clayton Act Oct. 15, 1914, § 5 (Comp. St. 1916, § 8835e), admissible in an action by an individual against the company for damages from attempt to monopolize.

5. MONOPOLIES 10-ACTION FOR DAMAG-
ES- LIMITATIONS STATUTES RETROAC-
TIVE EFFECT.
Clayton Act Oct. 15, 1914, § 5 (Comp. St.
1916, § 8835e), suspending the running of the
statute of limitations against a private right of
action pending proceedings by the government
for violation of the anti-trust laws, has no appli-
cation to prior proceedings and a cause of action
already barred.
6. MONOPOLIES 28- VIOLATION OF ANTI-
TRUST ACT-PRIVATE RIGHT OF ACTION.

Mere existence of defendant's power as it was when plaintiff was created does not avail plaintiff under Sherman Anti-Trust Act, § 7 (Comp. St. 1916, § 8829), giving a private action to persons injured by breach of the statute.

-

VIOLATION OF ANTITRUST ACT PRIVATE ACTION · MOTIVE OF PLAINTIFF'S ORGANIZATION - INSTRUCTIONS. Instruction, in action under Sherman AntiTrust Act, § 7 (Comp. St. 1916, § 8829), for private injury for breach of the statute, construed as stating correctly that, on the question whethpression or to plaintiff's incapacity, the jury in er plaintiff's failure was due to defendant's opestimating the evidence and finding what the facts were might consider the motive of plaintiff's organizer if they should find it to have been, what defendant alleged, to organize it merely to sell it out to defendant without any real intent to compete.

8. EVIDENCE 269(1) STATEMENTS OF THIRD PERSONS FACTS RECITED AS FURNISHING MOTIVE.

Statements of third persons of their reasons for refusing or ceasing to do business with plaintiff are inadmissible as evidence of the facts recited as furnishing the motives, as distinguished from evidence of their motives.

In Error to the United States Circuit Court of Appeals for the Third Circuit.

Action by the Buckeye Powder Company against the E. I. Dupont de Nemours Powder Company and others. Judgment for defendants was affirmed by the Court of Civil Appeals (223 Fed. 881, 139 C. C. A. 319), and plaintiff brings error. Affirmed.

Mr. Twyman O. Abbott, of New York City, for plaintiff in error.

Messrs. Frank S. Katzenbach, Jr., of Trenton, N. J., and William H. Button, of New York City, for defendants in error.

*Mr. Justice HOLMES delivered the opinion of the court.

This is an action brought by the plaintiff \ in error to recover triple damages under the Sherman Act, July 2, 1890, c. 647, § 7, 26 Stat. 209, 210 (Comp. St. 1916. § 8829): which the facts were shown at great length, There was a trial that lasted five months, in and after a very full and fair charge by the presiding judge the jury found a verdict in favor of the principal defendant, the E. I. Dupont de Nemours Powder Company, on the merits and for the other two by direction of the Court. Elaborate exceptions were taken but they were overruled by the Circuit Court of Appeals. 223 Fed. 881, 139 C. C. A. 319.

[1, 2] The first one that we shall deal with complains of the Court's sustaining a motion at the end of the trial that the plaintiff should elect whether it would rely upon the *first or the second section of the Sherman

Act (Comp. St. 1916, §§ 8820, 8821). If the case were different the question presented might be grave. In the one before the Court the only error was in the use of the word election and the implied admission that the trial possibly could be taken not to have proceeded upon the second section of the Act, coupled of course with section 7, giving a private action to persons injured by breach of the statute. The first section deals with contracts in restraint of trade, the second

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

with monopolizing and attempting to monopo- | came responsible for the acts of the Dupont lize it. The declaration, after stating the or- Company as their own. As the jury exonganization of the plaintiff in January, 1903, erated the latter company this ground fails. for the purpose of manufacturing and sell- So that even if the ruling was wrong it did ing powder, particularly black blasting pow- no harm unless something more can be found der, alleges a long previous conspiracy on in the case. Portland Gold Mining Co. v. the part of various companies to monopolize Stratton's Independence, 158 Fed. 63, 85 C. C. the trade in explosives, which ended in the A. 393, 16 L. R. A. (N. S.) 677. The ruling organization of the E. I. Dupont de Ne- did not import that there was no evidence mours Powder Company in May, 1903, in or- against the Dupont Company, the case der more completely to carry out that end. against which was put fairly to the jury, It is alleged that the defendants and others but that there was no evidence that the othhave carried out that end, and that in pur- er defendants conspired with it, so far at suance of it they did acts, detailed at great least as the plaintiff was concerned. These length, for the purpose of compelling the companies did not make black blasting powplaintiff to join them or else go out of busi- der and had no interest immediately adverse ness. That, with an allegation that they to the plaintiff. The basis of the charge of succeeded and forced the plaintiff to sell out conspiracy affecting the black blasting powat a loss, is the whole scope of the declara- der business was that the Dupont Company tion. There was a motion to strike it out for directly or through another company was induplicity, but the motion was overruled on terested in their stock. No other is suggestthe ground that the declaration was as we ed in the declaration and it would be hard to have stated. (D. C.) 196 Fed. 514. The extract any act from the evidence. Certaintrial proceeded on that footing without com- ly none could be found that was more than plaint. So far as contracts bore upon the an infinitesimal fraction of those done by supposed attempt to subject plaintiff to the the Dupont Company. Here again the Court monopoly the jury was allowed to consider was of opinion that the exceptions to be them. The case was fully tried upon the considered should have the whole record beground taken by the plaintiff at the outset hind it, but on the record as it stands we and the only one on which it could hope to think it sufficiently appears that the plainsucceed. The plaintiff did not ask to amend. tiff suffered no real harm. It is unnecessary to advert to the statement of the judge that in his opinion the exception to be considered should have the whole grecord behind it, or whether, as has been suggested, the *second section is not the only one addressed to transactions such as were alleged. Northern Securities Co. v. United States, 193 U. S. 197, 404, 24 Sup. Ct. 436, 48 L. Ed. 679. When the plaintiff, after the ruling of the judge, went through the form of electing to rely upon acts done contrary to section 2 of the statute, it simply adhered to the interpretation of its declaration that it had accepted at the beginning and had endeavored to sustain throughout. Portions of the charge are criticised in this connec- judgments "hereafter rendered," in some way tion for pointing out to the jury that section 2 embraced not only monopoly but attempts to monopolize. But this was wholly to the plaintiff's advantage, as it explained that if the plaintiff was driven out of business by the defendant's acts it was entitled to re. eover if those acts were done in the course of an attempt to monopolize, whether or not they were crowned with success. It allowed the jury to consider everything that indicated such an attempt.

[4, 5] The next matter requires but a few words. The plaintiff offered in evidence decrees in a proceeding by the Government' finding the Dupont Company guilty under the Sherman Act of an attempt to monopolize. United States v. E. I. Dupont de Nemours & Co. (C. C.) 188 Fed. 127. These of course were held inadmissible. The Court also ruled that the statute of limitations barred recovery for any damage suffered before September 18, 1905, six years before the beginning of the present suit. The plaintiff now contends that the Clayton Act of October 15, 1914, c. 323, § 5, 38 Stat. 731 (Comp. St. 1916, § 8835e) making admissible such criminal

should affect our decision upon a ruling made years before, and that by virtue of the same section the running of the statute of limitations was suspended retrospectively as to claims already barred, pending the Government suit. These matters do not need more than a statement of what was argued and what was done.

[6] Another exception seems to us over critical. Mr. Waddell, the organizer of the plaintiff corporation and chief witness on its behalf, started it directly after leaving the Dupont Company, with which he had been for many years. He knew all the elements of the situation before he embarked on the venture, and did not do so until the Dupont Company had reached the height of its pow

[3] Next in importance is an exception to the Court's directing a verdict in favor of the Eastern Dynamite Company and the International Smokeless Powder and Chemical Company. There were no acts done by either of these companies that were aimed at the plaintiff. The only substantial grounder. for charging them was that if they were parties to a conspiracy as alleged they be

The judge remarked in his charge that the plaintiff did not stand like a competitor that had been in existence while the de

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fendant's influence was being developed and | 522, 536, 35 Sup. Ct. 170, 59 L. Ed. 341; that had been injured in its business dur- | Elmer v. Fessenden, 151 Mass. 359, 362, 24 ing the course of such development-that the N. E. 208, 5 L. R. A. 724. In view of the mere existence of the defendant's power as finding of the jury the rulings as to damages it was when the plaintiff was born was not are immaterial and need no discussion here. in itself a cause of action to the plaintiff, The defendant put in evidence tending to but that the plaintiff must show that the show that its conduct was not the cause of defendant uses its power oppressively, if not the plaintiff's failure and its evidence, or against the plaintiff, at least in the course of the weakness of the plaintiff's prevailed. defendant's business. This was innocuous Our conclusion upon the whole case is that truth. The plaintiff could not be called in- the plaintiff has had a fair trial and that to being in order to maintain a suit for con- the judgment should not be disturbed. duct that made it not pay to be born. Claims Judgment affirmed. for such antenatal detriments are not much favored by the law. See National Council, United American Mechanics v. State Council of Virginia, 203 U. S. 151, 161, 27 Sup. Ct. 46, 51 L. Ed. 132.

(248 U. S. 78) ALASKA PACIFIC FISHERIES v. UNITED STATES.

1. INDIANS

No. 212.

12-ESTABLISHMENT OF "RESERVATION" IN ALASKA - POWER OF CON

GRESS.

§ 15 (Comp. St. 1916, § 5096a), to make reserva-
Congress had power, by Act March 3, 1891,
tion of Annette Islands in Alaska, for Met-
lakahtla Indians, inclusive of adjacent waters
and submerged land; the "reservation" not be-
ing in nature of private grant, but simply a
setting apart, until otherwise provided, designat-
ed public property for recognized public pur-
pose to advance dependent Indian people.
and Phrases, First and Second Series, Reserva-
[Ed. Note.-For other definitions, see Words

[7] Another statement in the charge con- (Argued Nov. 4, 1918. Decided Dec. 9, 1918.) cerning Mr. Waddell's knowledge of the defendant's power and policy is complained of, but the complaint seems to us based upon a perversion of its meaning. The defendant had put in evidence tending to show that Mr. Waddell organized the plaintiff merely to sell it out to the defendant, without any real intent to compete. The Court said that of course Mr. Waddell had a right to go into business and that his motive was of little moment so far as that was concerned, but that it might have a bearing on the question whether the plaintiff was sufficiently capitalized to meet normal conditions, adding that it did not matter whether it was or not as against a competition forced upon it by unlawful means. This is treated as if it had made the motive an answer to the claim. What it really did was to state correctly that, on the question whether the plaintiff's failure was due to the defendant's oppression or to the plaintiff's incapacity, the jury in estimating the evidence and finding what the facts were might consider Mr. Waddell's motive if they should find it to have been what the defendants alleged.

tion.]

2. FISH 3-INDIANS 12-RESERVATION AS INCLUDING ADJACENT WATERS.

In view of purpose of Indians in going to islands, character of islands, and purpose of creating reservation, reservation of Annette Islands in Alaska for Metlakahtla Indians, created by Act Cong. March 3, 1891, § 15 (Comp, St. 1916, § 5096a), includes adjacent waters and submerged land, to protect fish supply of Indians, principal source of their sustenance and 3. INDIANS 6-CONSTRUCTION OF STATUTES.

industry.

Statutes passed for benefit of dependent Indian tribes or communities are to be liberally construed, and doubtful expressions resolved in favor of the Indians.

Appeal from the United States Circuit Court of Appeals for the Ninth Circuit.

Suit by the United States against the Alaska Pacific Fisheries. From a decree granting the relief sought, defendant appealed to the Circuit Court of Appeals, which affirmed (240 Fed. 274, 153 C. C. A. 200), and defendant appeals. Affirmed.

Mr. C. H. Hanford, of Seattle, Wash., for appellant.

[8] We agree with the Circuit Court of Appeals that it is not necessary to deal specifically with all the details brought up by the dragnet of the plaintiff's exceptions and assignments of error, sixty-nine in number and occupying more than sixty pages of the record. Central Vermont Ry. Co. v. White, 238 U. S. 507, 508, 509, 35 Sup. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252. Several exceptions were taken to the exclusion of statements by third persons of their reasons for refusing or ceasing to do business with the plaintiff. We should be slow to overthrow a judgment on the ground of either the exclusion or admission of such statements except in a very strong case. But the exclusion in this instance was prop- This is a suit by the United States to ener. The statement was wanted not as evi-join the Alaska Pacific Fisheries, a California dence of the motives of the speakers but as corporation, from maintaining, and to comevidence of the facts recited as furnishing pel it to remove, an extensive fish trap erectthe motives. Lawlor v. Loewe, 235 U. S. ed by it in navigable waters at the Annette

Mr. Assistant Attorney General Brown, for the United States.

*Mr. Justice VAN DEVANTER delivered the opinion of the Court.

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