will, for the purpose of determining whether the error found may have been prejudicial, examine the whole record; state questions being left to the decision of the state court in cases coming here from those courts. the decision having been in favor of the validity of the statute, the case is properly brought to the national Supreme Court on a writ of error; and petition for certiorari is denied. In Error to the Supreme Court of the State of Mississippi. Messrs. J. Blanc Monroe, of New Orleans, La., Albert S. Bozeman, of Meridian, Miss., Monte M. Lemann, of New Orleans, La., and H. O'B. Cooper, of Washington, D. C., for plaintiff in error. [3] But we cannot say here that the rights of the railroad were not prejudiced by the error of the Supreme Court of Mississippi. It may be, as contended by the ad- Action by Joe Scarlet against the New Orministratrix, that there was sufficient evi-leans & Northeastern Railroad Company and dence of negligence to go to the jury, and another. Judgment for plaintiff was affirmed that the general instructions concerning by the Supreme Court of Mississippi (115 negligence were proper. But the trial court Miss. 285, 76 South. 265), and defendants also instructed the jury that "it was the bring error. Reversed, and writ of certiorari absolute duty of the defendant to furnish denied. the deceased with a safe place to perform the duties incident to his employment." It is clear that, under the circumstances of this case, the duty was not an absolute one; there was merely a duty to use reasonable care. Chicago & Northwestern Railway Co. v. Bower, 241 U. S. 470, 36 Sup. Ct. 624, 60 L. Ed. 1107; Seaboard Air Line Railway v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Choctaw, Oklahoma & Gulf Railroad Co. v. Tennessee, 191 U. S. 326, 331, 24 Sup. Scarlet was a fireman on the New Orleans Ct. 99, 48 L. Ed. 201. As examination of | & Northeastern Railroad. While engaged in this record does not convince us that the the performance of his duties he was injured admitted error was harmless, the judgment of the Supreme Court of Mississippi is reversed. The questions presented being properly here on writ of error, the petition for a writ of certiorari is denied. Reversed. (249 U. S. 528) Mr. Thomas G. Fewell, of Meridian, Miss., for defendant in error. Mr. Justice BRANDEIS delivered the opinion of the Court. by being thrown down between the engine and the tender. The accident was caused by the uncoupling of engine and tender; and this was apparently due to the breaking of the king pin, which fastened the drawbar to the tender, and the breaking of the coupling chains between engine and tender. He brought suit in a state court of Mississippi under the federal Employers' Liability Act of April 22, 1908, c. 149, 35 Stat. 65 (Comp. St. NEW ORLEANS & N. E. R. CO. et al. v. §§ 8657-8665), and the Boiler Inspection Act SCARLET. (Argued and Submitted March 18, 1919. cided April 21, 1919.) No. 242. 1. APPEAL AND ERROR ERROR-INSTRUCTIONS. De of February 17, 1911, c. 103, 36 Stat. 913 (Comp. St. §§ 8630-8639), as amended by the Act of March 4, 1915, c. 169, 38 Stat. 1192 (Comp. St. §§ 8639a-8639d), and recovered judgment which was affirmed by the Supreme Court of the state (115 Miss. 285, 76 1064(1)-HARMLESS South. 265). The case comes here by writ of It cannot be said that a railroad, sued under the federal Employers' Liability Act of April 22, 1908 (Comp. St. §§ 8657-8665), and the Boiler Inspection Act of February 17, 1911, amended by Act March 4, 1915 (Comp. St. §§ 8630-8639d), for injury to locomotive fireman by uncoupling of engine and tender, apparently due to breaking of king pin and coupling chains, was not prejudiced by erroneous instruction that Mississippi Prima Facie Act applied; the evidence not establishing as matter of law that the pin or the chains were defective, but at most presenting a question for the jury. 2. COURTS 391(1)-SUPREME COURT-ERROR TO STATE COURT-CONFLICT OF STATE AND FEDERAL STATUTES-CERTIORARI. The conflict of a state statute with a valid law of the United States being involved, and error under section 237 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1156), as amended by the Act of September 6, 1916, c. 448, § 2, 39 Stat. 726 (Comp. St. § 1214). [1] The railroad contends that the Supreme Court of Mississippi erred in sustaining the action of the trial court, which charged the jury that the so-called "Prima Facie Act" of Mississippi (section 1985 of the Code of 1906, as amended by chapter 215, Laws 1912, p. 290) applied, and that it relieved the plaintiff of the burden of proof to establish negligence. Scarlet concedes now that the statute cannot constitutionally be applied to suits under the federal Employers' Liability Act, since this court has so decided in New Orleans & Northeastern Railroad Co. v. Harris, 247 *U. S. 367, 38 Sup. Ct. 535, 62 L. Ed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 39 SUP.CT.-24 #529 not be determined (compare Yazoo & Mississippi Valley Railroad Co. v. Mullins, No. 273, 249 U. S. 531, 39 Sup. Ct. 368, 63 L. Ed. 754, decided this day); for it is clear that the evidence did not establish as a matter of law that the king pin or the chains were defective. At most it presented a question for the jury. Compare Minneapolis & St. Louis Railroad Co. v. Gotschall, 244 U. S. 66, 37 Sup. Ct. 598, 61 L. Ed. 995. We cannot say, therefore, that the railroad was not prejudiced by the error of the trial court in in. structing the jury that the "Prima Facie Act" was applicable. 1167, and that the judgment must be reversed | court. But whether Scarlet is now in a posiif the rights of the railroad were prejudiced tion to avail himself of the contention need by this error. But he contends that the railroad was not prejudiced, because negligence on its part is not essential to recovery. He insists that the Boiler Inspection Act, as amended, imposes upon the railroad the absolute duty (compare St. Louis & Iron Mountain Railway Co. v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061) to have the "locomotive and tender and all parts and appurtenances thereof" in "proper condition and safe to operate"; that the mere breaking of the king pin and coupling chains shows conclusively that they were defective; that the evidence shows conclusively that this was the proximate cause of the injury; and that the plaintiff was therefore entitled, under the federal act, to have the jury peremptorily instructed to render a verdict in his favor. It does not appear that this contention was made before the Supreme Court of the state, and it was apparently not considered by that [2] The conflict of a state statute with a valid law of the United States being involved and the decision having been in favor of the validity of the statute, the case is properly here on a writ of error; and the petition for a writ of certiorari is denied. Reversed. (249 U. S. 540) DARLING v. CITY OF NEWPORT NEWS. (Argued April 15, 1919. Decided April 28, 1919.) No. 600. way as to pollute and ruin the plaintiff's oysters upon his beds under the tidal waters of Hampton Roads. A demurrer was sustained by the Court of first instance and on appeal by the Supreme Court of Appeals, and the bill was dismissed. 96 S. E. 307. The ma 1. COURTS 394(9, 10)—JURISDICTION-FED-terial facts are few. The plaintiff holds leasERAL QUESTION. Allegations that statutory permission given a city to discharge its sewage in water over oyster beds previously granted complainant by the state violates the contract clause and the Fourteenth Amendment to the federal Constitution, held to confer appellate jurisdiction upon the Supreme Court. 2. NAVIGABLE WATERS 35 - POLLUTION MUNICIPAL DRAINAGE. es of the beds from the State. The original ones were made in 1884 and 1885 for twenty years. In 1903, 1905 and 1912 they were what is called reassigned to the plaintiff by what we understand to have been new leases, by statute to be deemed continuations of the original leases. In 1896 the City of Newport News was incorporated with the grant of the right to build sewers, which the City built in the manner complained of. The grant, coupled with Acts of 1908, c. 349, pp. 623, 624, authorizes the present discharge through Salter's Creek into the tide waters of Hamp Unless precluded by some act of its own or some right of a neighboring state or the federal government, a state may authorize a municipality to empty its drains into the sea, at least so long as a nuisance interfering with pri-ton Roads, with the effect alleged. By section 2137 of the Code of Virginia it is providvare constitutional rights is not created. ed that so long as a lessee of oyster beds con 3. NAVIGABLE WATERS 36(2)-LANDS UN-tinues to pay the rent reserved "he shall have DER WATER - POLLUTION OF WATERS DRAINAGE. Mere ownership of land under salt water does not empower the owner to prevent the foul ing of the water. 4. CONSTITUTIONAL LAW 121(1)-FISH The right given the city of Newport News by its charter, and Acts 1908, c. 349, to discharge its sewage into the ocean does not violate the contract rights of an oyster bed lessee holding under Code Va. 1904, §§ 2137, 2137a, granting the absolute right of occupancy for fixed periods, since these provisions relate to the possession of the land, and not to the quality of the water over it. 5. COURTS 366(11)-RULES OF DECISIONDECISION FOLLOWING STATE COURT. The state court's construction of Const. Va. 1902, § 58, requiring compensation for property taken or damaged for public use, will be followed by the federal Supreme Court. In Error to the Supreme Court of Appeals of the State of Virginia. the exclusive right to occupy said land for a period of twenty years, subject to such rights, if any, as any other person or persons may previously have acquired." By section 2137a, originally Act of March 5, 1894, c. 743, § 2, Acts 1893-94, pp. 840, 847, while he pays rent as required "the State will guarantee the absolute right to the renter to continue to use and occupy the same for the period of twenty years the renter acquired." The bill alleges that if the statutes purport to authorize the destruction of the plaintiff's oysters they are contrary to the Constitution of the United States and specifically to the Fourteenth Amendment. In the assignment of errors to the Supreme Court of Appeals the statutes are said also to violate the contract clause. Article 1, § 10. The jurisdiction of this Court is clear. [2, 3] The fundamental question as to the rights of holders of land under tide waters does not present the conflict of two vitally important interests that exists with regard to fresh water streams. There the needs of water supply and of drainage compete. Missouri v. Illinois, 200 U. S. 496, 521, 522, 26 Sup. Ct. 268, 50 L. Ed. 572. The ocean hitherto has been treated as open to the discharge Messrs. Maryus Jones and J. Winston Whatever science may accomplish in the of sewage from the cities upon its shores. Read, both of Newport News, Va., for plain-future *we are not aware that it yet has distiff in error. Bill by Frank W. Darling against the City of Newport News was dismissed by the Supreme Court of Appeals of Virginia (96 S. E. 307), and plaintiff brings error. Affirmed. covered any generally accepted way of avoidMr. J. A. Massie, of Newport News, Va., ing the practical necessity of so using the for defendant in error. great natural purifying basin. Unless precluded by some right of a neighboring State, *Mr. Justice HOLMES delivered the opinion such as is not in question here, or by some of the Court. [1] The plaintiff in error brought this bill in equity to prevent the City of Newport News from discharging its sewage in such a act of its own, or of the United States, clearly a State may authorize a city to empty its drains into the sea. Such at least would be its power unless it should create a nuisance For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (249 U. S. 545) COLLETT v. ADAMS. that so seriously interfered with private | v. Chicago, 99 U. S. 635, 642, 25 L. Ed. 336. property as to infringe Constitutional rights. But upon that point we follow the Supreme And we apprehend that the mere ownership of Court of the State. a tract of land under the salt water would Decree affirmed. not be enough of itself to give a right to prevent the fouling of the water as supposed. The ownership of such land, as distinguished from the shore, would be subject to the natural uses of the water. So much may be accepted from the decisions in Virginia anú | (Submitted March 21, 1919. Decided April 28, elsewhere as established law. Hampton v. Watson, 119 Va. 95, 89 S. E. 81, L. R. A. 1916F, 189; Haskell v. New Bedford, 108 Mass. 208, 214; Marcus Sayre Co. v. Newark, 60 N. J. Eq. 361, 45 Atl. 985; Illinois Central R. R. Co. v. Illinois, 146 U. S. 387, 459, 13 Sup. Ct. 110, 36 L. Ed. 1018. [4] The question before us then narrows itself to whether the State has done any act that precludes it from exercising what otherwise would be its powers. On that issue we shall not inquire more curiously than did the Supreme Court of Appeals into the statutory warrant for the leases, or go into relative dates, but shall assume, for the purposes of decision, that the plaintiff is a lessee and is entitled to the benefit of the clauses that we have quoted from the Code. But we agree with the Court below that when land is let under the water of Hampton Roads, even though let for oyster beds, the lessee must be held to take the risk of the pollution of the water. It cannot be supposed that for a dollar an acre, the rent mentioned in the Code, or whatever other sum the plaintiff paid, he acquired a property superior to that risk, or that by the mere making of the lease, the State contracted, if it *could, against using its legislative power to sanction one of the very most important public uses of water already partly polluted, and in the vicinity of half a dozen cities and towns to which that water obviously furnished the natural place of discharge. See Illinois Central R. R. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed. 1018; Trimble v. Seattle, 231 U. S. 683, 34 Sup. Ct. 218, 58 L. Ed. 435. The case is not changed by the guaranty in section 2137a. That is directed to the possession of the land, not to the quality of the water. It is unnecessary to cite the cases that have affirmed so frequently that the construction of public grants must be very strict. 1. BANKRUPTCY 1919.) No. 274. 297-JURISDICTION-RE COVERING PREFERENCE. Bankruptcy Act, §§ 1(8), 2, 23b, 60b (Comp. St. §§ 9585, 9586, 9607, 9644), authorize suits by a bankrupt's trustee to recover preferences under sections 67b, 67e, and 70e (sections 9651, 9654) to be brought in the federal District Court of the district where the real and personal property is located, although the bankant resides, in another district in the same state. ruptcy proceedings were instituted, and defend2. COURTS 269-UNITED STATES COURTSJURISDICTION-"LOCAL ACTION." Suit by a bankrupt's trustee to recover as a preference real and personal property conveyed by the bankrupt is a local action, within Judicial Code, § 54 (Comp. St. § 1036), and is excepted by section 51 (section 1033) from the general provision that defendants must be sued in the district of which they are inhabitants. and Phrases, First and Second Series, Local [Ed. Note.-For other definitions, see Words Action.] 3. COURTS 296 - FEDERAL COURT-PENDING SUIT. Suit by a bankrupt's trustee in a federal court to avoid a conveyance of real and personal property by the bankrupt as a preference is not precluded because a suit by defendant against the bankrupt, which did not tend to avoid the transfer and to which the trustee was not a party, was pending in the state court. 4. BANKRUPTCY AL QUESTION. 302(1)—PETITION-FEDER Bill by bankrupt's trustee to avoid a conveyance of real and personal property by the bankrupt as a preference held sufficiently substantial to confer jurisdiction on a federal District Court. Appeal from the District Court of the United States for the Southern District of Texas. Suit by J. D. Collett, trustee in bankruptcy of the estate of Ford C. Cotten, bankrupt, against James R. Adams. From a decree dismissing the bill, complainant appeals. Reversed. [5] The Constitution of Virginia, like some others, requires compensation for property taken or damaged for public use. Const. 1902, § 58. But this seems to be construed by the dissenting Judge as well as by the Court below as not including damage like this, which would not have been a wrong even without the act of the legislature. It is a question that has been subject to much debate. See for example, Caledonian Railway v. Walker's Trustees, 7 App. Cas. 259, 293, Messrs. Wilmer S. Hunt, of Houston, Tex., et seq.; Taft v. Commonwealth, 158 Mass. and H. B. Seay, of Dallas, Tex., for appel526, 548, 33 N. E. 1016; Transportation Co. | lant. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Mr. Justice VAN DEVANTER delivered [ personalty has been disposed of by Adams. the opinion of the Court. This suit is equity was brought in the District Court for the Southern District of Texas by a trustee in bankruptcy. A motion to dismiss the bill for want of jurisdiction was sustained, and the propriety of that ruling is the sole question presented on this direct appeal. See Judicial Code (Act Jan. 28, 1915, c. 22) § 238, 38 Stat. 804 (Comp. St. § 1215). The real property is in the Southern District of Texas, where this suit was brought. Cotten and the trustee reside in the Northern district, where the bankruptcy proceeding is pending, and Adams resides in the Eastern district. The suit in the state court has not been dismissed, but is still pending in substantially the same condition as when the transfer was made. (1) that the bill could not be brought in that court without the defendant's consent, which was not given; (2) that the bill was not brought in the district where the bankruptcy proceeding was pending or in that of the residence of the defendant; and (3) that the subject-matter of the bill already was involved in the pending suit in the state court in Collin county, a court of competent jurisdiction, and adequate relief could be had in that suit. The bill contains a prayer for the recovery The allegations of the bill are to this effect: of the real property or its value, for an acMarch 17, 1917, a petition in bankruptcy counting as to the proceeds of the personagainst Ford C. Cotten was filed in the Dis-alty, and for other relief the detail and protrict Court for the Northern District of Tex-priety of which require no attention here. as, on which in due course he was adjudged The motion which the court below sustaina bankrupt. The plaintiff became the trus-ed challenged its jurisdiction on the grounds tee. On December 22, 1916, and for some time theretofore, Cotten was the owner and in possession of certain real and personal property in Wharton county, Tex., and on that day transferred the same to James R. Adams, the defendant. Adams was then asserting that Cotten was indebted to him in the sum of $45,311 for property obtained from him through deceit and fraud, and a suit to enforce that claim was pending in a state court in Collin county, Tex. In August, 1916, a writ of attachment in that suit had [1] On its face the bill shows very plainbeen levied on the property here in question, ly that it is brought to avoid a transfer by but under the laws of Texas the attachment the bankrupt, which the trustee regards as lien was void and of no effect. The trans-a voidable preference within the meaning of fer from Cotten to Adams was made with section 60b of the Bankruptcy Act (Act July the purpose of effecting a settlement of that 1, 1898, c. 541, 30 Stat. 562 [Comp. St. § suit and the claim involved therein, and at 9644]), and to recover the property transthe time of the transfer the parties entered ferred or its value. There are also present into a written agreement wherein it was some indications of a purpose to claim relief stipulated that if Cotten was not adjudged under sections 67e and 70e (Comp. St. §§ 9651, a bankrupt on a petition presented within 9654), but this does not call for special comfour months after the transfer was filed for ment, for in point of jurisdiction there is no record, Adams should dismiss the suit and distinction between a suit under these secpay the unpaid costs, and, if on a petition so tions and one under section 60b. filed Cotten was adjudged a bankrupt, Adams It well may be that under the original terms should have the right to prosecute the suit of the Bankruptcy Act, c. 541, 30 Stat. 544, the to judgment and to enforce all liens acquir- bill could not have been brought in the court ed through the attachment. The deed trans- below without the defendant's consent, ferring the real property was filed for rec- (Bardes v. Hawarden Bank, 178 U. S. 524, 20 ord shortly after it was executed, but the Sup. Ct. 1000, 44 L. Ed. 1175), but the act agreement never was so filed and constituted was amended materially in 1903 and again in a secret understanding between the parties. | 1910 (Act Feb. 5, 1903, c. 487, 32 Stat. 797; Following the transfer Adams took posses- Act Jan. 25, 1910, c. 412, 36 Stat. 838), and sion of the property, real and personal; was still in possession, claiming title and exercising the rights of an owner, when this bill was brought, and had refused, on demand made, to surrender the property to the trusSection 23b: "Suits by the trustee shall only tee. At the time of the transfer Cotten was be brought or prosecuted in the courts where insolvent and intended thereby to effect a the bankrupt, whose estate is being administerpreference in favor of Adams, all of which ed by such trustee, might have brought or the latter knew or had reasonable cause to prosecuted them if proceedings in bankruptcy believe; and in fact the transfer resulted in had not been instituted, unless by consent of the such a preference, for the assets were not proposed defendant, except suits for the recov sufficient to pay all creditors. The property; section sixty-seven, subdivision e; and sec ery of property under section sixty, subdivision transferred was not exempt, but was such as creditors lawfully could subject to the payment of their claims. Some or all of the it was after those amendments became effective that the bill was brought. The pertinent provisions, with the amendments affecting jurisdiction in italics, are as follows: tion seventy, subdivision e." (Comp. St. § 9607.) Section 60b: "If a bankrupt shall have procured or suffered a judgment to be entered |