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ARGUED AND DETERMINED
UNITED STATES SUPREME COURT
OCTOBER TERM, 1918
(248 U. S. 9)
WATTS, WATTS & CO., Limited, v. UNIONE
119-REVIEW-DISPOSITION OF CAUSE-CHANGED CONDITIONS.
The Supreme Court, in the exercise of its appellate jurisdiction, cannot only correct er ror in the judgment below, but make such disposition of the case as justice may now require, considering changes in fact and in law occurring since the judgment, especially in an admiralty case triable de novo on appeal. 2. ADMIRALTY 119-REVIEW-DISPOSITION OF CAUSE-CHANGED CONDITIONS.
Where after dismissal in the discretion of the court of a suit, because between alien belligerents in a court of a neutral nation because of entry of the United States in the war, it becomes a suit between one belligerent in a court of a cobelligerent against a common enemy, decree will be reversed, as inconsistent with demands of justice under changed circum
3. WAR 10(2)-SUIT AGAINST ALIEN EN-
Respondent, though an alien enemy, is entitled to defend before judgment be entered. 5. WAR 10(2)—PROTECTING RIGHTS OF ALIEN ENEMY.
Action other than to preserve the status quo should not be taken in a suit against an alien enemy till, by reason of restoration of peace or otherwise, defense may be adequately presented; intercourse between residents of the enemy country and the United States being prohibited by Trading with the Enemy Act, § 3 (c), as well as physically impossible.
Messrs. John M. Woolsey, J. Parker Kirlin, and Mark W. McClay, Jr., all of New York City, for petitioner.
On Writ of Certiorari to the United States Circuit Court of Appeals for the Second Circuit.
Mr. Charles S. Haight, of New York City, for respondent.
*Mr. Justice BRANDEIS delivered the opinion of the Court.
On August 4, 1914, Great Britain declared war against Germany and on August 12, 1914, against Austria-Hungary. Prior to August 4, Watts, Watts & Co., Limited, a British corporation, had supplied to Unione Austriaca di Navigazione, an Austro-Hungarlan corporation, bunker coal at Algiers, a dependency of the French Republic. Drafts on London given therefor having been protested for nonpayment, the seller brought, on August 24, 1914, a libel in personam against the purchaser in the District Court of the United States for the Eastern District of New York. Jurisdiction was obtained by attaching one of the steamers to which the
coal had been furnished. The attachment was discharged by giving a bond which is now in force. The respondent appeared and filed an answer which admitted that the of the court; and it was submitted for decicase was within the admiralty jurisdiction sion upon a stipulation as to facts and proof of foreign law.
The respondent contended that the District Court, as a court of a neutral nation, should not exercise its juris*dictional power between allen belligerents to require the transfer, by process of judgment and execution, of funds by one alien belligerent to another; an act which it alleged was prohibited alike by the municipal law of both belligerents. The libelant replied that perform
Libel by Watts, Watts & Co., Limited, against the Unione Austriaca di Naviga-ance of the contract by respondent—that is, zione, etc. Decree dismissing the libel was the payment of a debt due-was legal by the affirmed by the Circuit Court of Appeals (229 law of the place of performance, whether Fed. 136, 143 C. C. A. 412), and libelant that place be taken to be Algiers or Lonbrings certiorari. Reversed. don; that it was immaterial whether it was
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 39 SUP.CT.-1
legal by the Austro-Hungarian law, since | L. Ed. 111; Mills v. Green, 159 U. S. 651, 16 Austria-Hungary was not the place of per- Sup. Ct. 132, 40 L. Ed. 293; The Schooner formance; and that the enforcement of le- Rachel v. United States, 6 Cranch, 329, 3 L. gal rights here would not infringe the atti- Ed. 239; United States v. Schooner Peggy, 1 tude of impartiality which underlies neu- Cranch, 103, 109, 110, 2 L. Ed. 49. In the case trality. The District Court held that it had at bar the rule is the more insistent, because jurisdiction of the controversy, and that it in admiralty cases are tried de novo on appeal. was within its discretion to determine Yeaton v. United States, 5 Cranch, 281, 3 L. whether it should exercise the jurisdiction; Ed. 101; Irvine v. The Hesper, 122 U. S. since both parties were aliens and the cause 256, 266, 7 Sup. Ct. 1177, 30 L. Ed. 1175; of action arose and was to be performed Reid v. American Express Co., 241 U. S. 544, abroad. It then dismissed the libel without 36 Sup. Ct. 712, 60 L. Ed. 1156. prejudice, saying:
"From the standpoint of this neutral jurisdiction the controlling consideration is that the law of both belligerent countries [Great Britain and Austria-Hungary] forbids a payment by one belligerent subject to his enemy during the continuance of war. This court, in the exercise of jurisdiction founded on comity, may not ignore that state of war and disregard the consequences resulting from it." 224 Fed. 188, 194.
The dismissal by the District Court was entered on May 27, 1915. On December 14, 1915, the decree was aturmed by the Circuit Court of Appeals, on the ground that it was within the discretion of the trial court to determine whether to take or to decline jurisdiction (The Belgenland, 114 U. S. 355, 5 Sup. Ct. 860, 29 L. Ed. 152), and that the
exercise of this discretion should not be interfered with, since no abuse was shown
(229 Fed. 136, 143 C. C. A. 412). On June 12, 1916, an application for leave to file a petition for writ of mandamus to compel the Court of Appeals to review the *exercise of discretion by the District Court was denied (Ex parte Watts, Watts & Co., 241 U. S. 655, 36 Sup. Ct. 726, 60 L. Ed. 1224), and a writ of certiorari was granted by this court (241 U. S. 677, 36 Sup. Ct. 726, 60 L. Ed. 1232). The certiorari and return were filed July 21, 1916. On December 7, 1917, the President issued a proclamation declaring that a state of war exists between the United States and Austria-Hungary. The case was argued here on April 17, 1918.
 This court, in the exercise of its appellate jurisdiction, has power not only to correct error in the judgment entered below, but to make such disposition of the case as justice may at this time require. Butler v. Eaton, 141 U. S. 240, 11 Sup. Ct. 985, 35 L. Ed. 713; Gulf, Colorado & Santa Fé Ry. Co. v. Dennis, 224 U. S. 503, 506, 32 Sup. Ct. 542, 56 L. Ed. 860. And in determining what justice now requires the court must consider the changes in fact and in law which have supervened since the decree was entered below. United States v. Hamburg-Amerikanische Packetfahrt-Actien Gesellschaft, 239 U. S. 466, 475, 478, 36 Sup. Ct. 212, 60 L. Ed. 387; Berry v. Davis, 242 U. S. 468, 37 Sup. Ct. 208, 61 L. Ed. 441; Crozier v. Krupp, 224 U. S. 290, 302, 32 Sup. Ct. 488, 56 L. Ed. 771; Jones v. Montague, 194 U. S. 147, 24 Sup. Ct. 611, 48 L. Ed. 913; Dinsmore v. Southern Express Co., 183 U. S. 115, 120, 22 Sup. Ct. 45, 46
[2, 3] Since the certiorari was granted, the relation of the parties to the court has changed radically. Then, as earlier, the proceeding was one between alien belligerents in a court of a neutral nation. Now, it is a suit by one belligerent in a court of a cobelligerent against a common enemy. A suit may be brought in our courts against an alien enemy. McVeigh v. United States, 11 Wall. 259, 267, 20 L. Ed. 80. See also Dorsey v. Kyle, 30 Md. 512, 96 Am. Dec. 617. If the libel had been filed under existing cir-g cumstances, security for the claim being obcourt would, in the exercise of discretion, tained by attachment, probably no American dismiss it and thus deprive the libelant not only of its security, but perhaps of all possibility of ever obtaining satisfaction. Under existing circumstances dismissal of the
libel is not consistent with the demands of
[4, 5] The respondent, although an alien enemy, is, of course, entitled to defend before a judgment should be entered. McWindsor v. McVeigh, 93 U. S. 274, 280, 23 See also Veigh v. United States, supra. L. Ed. 914; Hovey v. Elliott, 167 U. S. 409, 17 Sup. Ct. 841, 42 L. Ed. 215. It is now represented by counsel. But intercourse is prohibited by law between subjects of Austria
ungary outside the United States and perEnemy Act of October 6, 1917, c. 106, § 3 (c), sons in the United States. Trading with the 40 Stat. 412, Public-No. 91-65th Congress. And we take notice of the fact that free in
tercourse between residents of the two countries has been also physically impossible. It is true that, more than three years ago, a stipulation as to the facts and the proof of foreign law was entered into by the then Counsel for respondent, who has died since. But reasons may conceivably exist why that stipulation ought to be discharged or modified, or why it should be supplemented by evidence. We cannot say that, for the proper conduct of the defense, consultation between client and counsel and intercourse between their respective countries may not be essential even at this stage. The war precludes this. ·
Under these circumstances, we are of opinion that the decree dismissing the libel should be set aside and the case remanded to the District Court for further proceedings, but that no action should be taken there (ex
cept such, if any, as may be required to pre- | manded to the District Court, with direcserve the security and the rights of the par- tions to dismiss the bill. 232 Fed. 694, 146 ties in statu quo) until, by reason of the C. C. A. 620. restoration of peace between the United States and Austria-Hungary, or otherwise, it may become possible for the respondent to present its defense adequately. Compare The Kaiser Wilhelm II (C. C. A.) 246 Fed. 786, L. R. A. 1918C, 795; Robinson & Co. v. Continental Insurance Company of Mannheim,  1 K. B. 155, 161–162. Reversed.
The case arises under the Meat Inspection Acts. Act June 30, 1906, c. 3913, 34 Stat. 674, and Act March 4, 1907, c. 2907, 34 Stat. 1260, 1265. The act provides an elaborate system of inspection of animals before slaughter, and of carcasses after slaughter and of meat-food products, with a view to prevent the shipment of impure, unwholesome, and *unfit meat and meat-food products* in interstate and foreign commerce. The act in part provides:
(248 U. S. 1)
PITTSBURGH MELTING CO. v. TOTTEN,
1. FOOD 3 INSPECTION
Appeal from the United States Circuit Court of Appeals for the Third Circuit.
Suit by the Pittsburgh Melting Company against G. E. Totten, Inspector of the Bureau of Animal Industry of the Department of Agriculture. Decree for complainant was reversed by the Circuit Court of Appeals (232 Fed. 694, 146 C. C. A. 620), and complainant appeals. Affirmed.
And the act further provides:
"That on and after October first, nineteen hundred and six, no person, firm, or corporation shall transport or offer for transportation, and no carrier of interstate or foreign commerce shall transport or receive for transportaof Columbia, to any state or territory or the tion from one state or territory or the District District of Columbia, or to any place under the jurisdiction of the United States, or to any
* Mr. Justice DAY delivered the opinion of foreign country, any carcasses or parts thereof, meat, or meat-food products thereof, which have not been inspected, examined, and marked as 'Inspected and Passed,' in accordance with the terms of this act and with the rules and regulations prescribed by the Secretary of Agricul
Messrs. Samuel McClay and David A. Reed, both of Pittsburgh, Pa., for appellant. Mr. Assistant Attorney General, for appellee.
"That for the purposes hereinbefore set forth the Secretary of Agriculture shall cause to be made by inspectors appointed for that purpose an examination and inspection of all meat-food, products prepared for interstate or foreign commerce in any slaughtering, meat-canning, salting, packing, rendering, or similar establishment, and for the purposes of any examination and inspection said inspectors shall have access at all times, by day or night, whether the establishment be operated or not, to every part of said establishment; and said inspectors shall mark, stamp, tag, or label as 'Inspected and Passed' all such products found to be sound, healthful, and wholesome, and which contain no dyes, chemicals, preservatives, or ingredients which render such meat or meat-food products unsound, unhealthful, unwholesome, or unfit for human food; and said inspectors shall label, mark, stamp, or tag as 'Inspected and Condemned' all such products found unsound, unhealthful, and unwholesome, or which contain dyes, chemicals, preservatives, or ingredients which render such meat or meat-food products unsound, unhealthful, unwholesome, or unfit for human food, and all such condemned meat-food products shall be destroyed for food purposes, as hereinbefore provided, and the Secretary of Agriculture may remove inspectors from any establishment which fails to so destroy such condemned meat-food products. * * "
The Pittsburgh Melting Company filed a bill in the District Court of the United States for the Western District of Pennsylvania against the Baltimore & Ohio Railroad Company and G. E. Totten, Inspector of the Bureau of Animal Industry of the Department of Agriculture, seeking a mandatory injunction requiring the Railroad Company to receive and carry in interstate and foreign commerce shipments of oil, the manufacture of the Melting Company, and to restrain the government inspector from interfering with the shipments.
The facts appearing of record so far as we deem them necessary to the decision of the case are:
The Melting Company has long been engaged in rendering or converting animal fats into various products, including the oil which is the subject-matter of this controversy. At one time the company made oleomargarine, but owing to adverse legislation of the state A decree in favor of the complainant was of Pennsylvania desisted from doing so. Govrendered in the District Court. 229 Fed. ernment inspectors were in the works of the 214. Upon appeal this decree was reversed Melting Company and inspected and marked by the Court of Appeals, and the cause re the products until 1909 when a controversy
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
arose between the company and the govern- | It is used in cooking for shortening purposes. ment officers as to the purchase of the fats Made as it is by the Melting Company it has used by the company. Upon refusal to com- no quality which prevents its use for such ply with the orders of such officers, inspection food purposes. It is not a tallow oil, distastewas withdrawn. Whether this action was ful and unfit to use in the making of food right or not we do not stop to enquire, since products. Without elaborating the discusthe claim for relief is based upon the allega- sion, we reach the conclusion that this prodtion that complainant's oil is not a meat-food uct was clearly a "meat-food product," within product within the meaning of the statute. the meaning of the statute. It is true that the Melting Company does not sell it as such, and now marks it as "inedible." But that does not change the fact that a main use of such oil is in making edible products. The company has no control over the use of the oil after it is shipped, and the record *does not disclose what use is made of a large percentage of its product which was. shipped abroad at the time this action was begun.
After inspection was withdrawn the company continued to ship its oil, but did so under the then regulations of the Department of Agriculture concerning the shipment of fat for industrial use, as "inedible," and so marking the receptacle containing the same and making the certificate then required by the Department of Agriculture that it was inedible and not intended for food purposes. On November 1, 1914, the Department adopted a new regulation requiring a certificate to accompany the shipment of such fats claimed not to be food products, stating that the same "is not capable of being used as food by man, is suitable only for industrial purposes, is not for food purposes, and is of such character or * for *such a use that denaturing is impracticable." The regulation permits the shipment of oil for industrial uses after it is "denatured"; that is, treated with a substance which renders it unfit for food, while still fit for use in industrial purposes. The Melting Company refused to make this certificate, which resulted in the notice to the Railroad Company to refuse to carry the oil, and brought about this suit to compel the carrier to receive and transport it.
 The enactment of the statute was within the power of Congress in order to prevent interstate and foreign shipment of impure or adulterated meat-food products. The statute does not specifically define a meat-food product. In our view the product of the Melting Company is a meat-food product in the sense of the use of those terms in the statute and as such subject to the regulations of the Secretary of Agriculture. It being such meatfood product the Melting Company could not truthfully claim that it was not capable of being used as food by man, and hence could not make the certificate required.
The District Court found that the oil manufactured and shipped by the Melting Company was not within the terms of the act, as it was not a meat-food product, which is prohibited from shipment without inspection. The reasons for reaching that conclusion are set forth in the opinion of the District Judge. 229 Fed. 214, supra. The Circuit Court of Appeals reached the opposite conclusion upon the testimony adduced. 232 Fed. 694, 146 C. C. A. 620, supra.
 An examination of the record satisfies us that the Circuit Court of Appeals reached the right conclusion. The oil here in controversy, the testimony shows, is generally known as "oleo" oil, and is not "tallow" oil as that term is generally understood by the trade. Both oils are made from the fat of slaughtered beeves. Oleo oil by itself is seldom used as a food. It is, however, largely used in the manufacture of oleomargarine. In fact it constitutes a large percentage of that product.
The theory of the bill is that the product in question was not within the terms of the act; the District Court reached the conclusion that this theory was the correct one, and so rendered a decree which required the Railroad Company to receive the oil for transportation in interstate and foreign commerce, without inspection, when labelled "inedible," and accompanied by the certificate of the Melting Company that such oil is inedible and not intended for food purposes and is of such a character that denaturing is impossible or will render the oil unavailable for the desired industrial use. This decree is consistent only with the finding of the District Court that the product was not a meat-food product within the meaning of the statute.
As we have said, we think the record shows, as found by the Circuit Court of Appeals, that the oil made and offered for shipment by the Melting Company was a meat-food product, and hence subject to the regulation of the statute requiring inspection before shipment. The decree requiring such oil to be shipped without inspection was properly reversed. Affirmed.
DISPOSED OF AT October Term, 1918.
(248 U. S. 587)
No. 236. The UNITED STATES of America, plaintiff in error, v. The FEDERAL PUBLISHING COMPANY; and
No. 237. The UNITED STATES of America, plaintiff in error, v. The BUTTERICK COMPANY. Oct. 8, 1918. In error to the District Court of the United States for the Southern District of New York. For opinion below, see 240 Fed. 539. Mr. Attorney General Todd and Mr. Assistant Attorney General, for the United States. Dismissed, on motion of Mr. Assistant to the Attorney General Todd for the plaintiff in error.
(248 U. S. 587)
No. 693. The BRUNSWICK-BALKE-COL LENDER COMPANY, appellant, v. Walter H. EVANS et al. Oct. 8, 1918. Appeal from the District Court of the United States for the District of Oregon. For opinion below, see 228 Fed. 991. Mr. Frederick S. Tyler, of Washington, D. C., for appellees. Docketed and dismissed with costs, on motion of Mr. Frederick S. Tyler, for the appellees.
(248 U. S. 532)
No. original. Ex parte In the matter of Charles W. COON, petitioner. Oct. 21, 1918. Motion for leave to file petition for writ of habeas corpus denied.
No., original. Ex parte In the matter of WHITNEY STEAMBOAT CORPORATION, petitioner. Oct. 21, 1918. Motion for leave to file petition for writ of prohibition granted, and rule to show cause awarded returnable Monday, December 9, 1918.
(248 U. S. 587)
No. 5. INTERNATIONAL HARVESTER COMPANY OF NEW JERSEY et al., appellants, v. The UNITED STATES. Oct. 21, 1918. Appeal from the District Court of the United States for the District of Minnesota. For opinion below, see 214 Fed. 987. Messrs. John P. Wilson and Edgar A. Bancroft, both of Chicago, Ill., and Wm. D. McHugh, of Omaha, Neb., for appellants. The Attorney General, for the United States. Dismissed and mandate granted, on motion of counsel for the appellants.
No. 39. Joseph HOLT et al., appellants, v. SUPREME LODGE, KNIGHTS OF PYTHIAS. Oct. 21, 1918. Appeal from the United States Circuit Court of Appeals for the Seventh Circuit. For opinion below, see 235 Fed. 885, 149 C. C. A. 197. Messrs. Elmer H. Adams, of Chicago, Ill., and Henry L. Lazarus and David Sessler, both of New Orleans, La., for appellants. Mr. Sol. H. Esarey, of Indianapolis, Ind., for appellee. Dismissed with costs, on motion of counsel for the appellants.
(248 U. S. 588)
No. 103. The ANN ARBOR RAILROAD COMPANY, appellant, v. Cassius L. GLASGOW et al. Oct. 21, 1918. Appeal from the District Court of the United States for the
Eastern District of Michigan. For opinion below, see 236 Fed. 387. Messrs. Alexander L. Smith, of Toledo, Ohio, Joseph B. Cotton, of New York City, and Chauncey C. Colton, of Duluth, Minn., for appellant. Mr. Grant Fellows, of Hudson, Mich., for appellees. Dismissed without costs to either party per stipulation.
(248 U. S. 588) No. 110. NORFOLK SOUTHERN RAIL ROAD COMPANY, plaintiff in error, v. William L. WHITEHURST. Oct. 21, 1918. In error to the Supreme Court of Appeals of the State of Virginia. For opinion below, see 117 Va. 542, 85 S. E. 458. Mr. James G. Martin, of Norfolk, Va., for plaintiff in error. Mr. Sigmund M. Brandt, of Norfolk, Va., for defendant in error. Dismissed each party to pay their own costs per stipulation.
(248 U. S. 589)
No. 133. H. S. MCGOWAN et al., plaintiffs in error, v. EAGLE CLIFF FISHING COMPANY. Oct. 21, 1918. In error to the Supreme Court of the State of Oregon. For opinion below, see 70 Or. 1, 137 Pac. 766. Messrs. Franklin T. Griffith and Bert W. Henry, both of Portland, Or., for plaintiffs in error. Mr. C. W. Fulton, of Portland, Or., for defendant in error. Dismissed without costs to either party per stipulation.
(248 U. S. 531) No. 135. RED JACKET, JR., COAL COMPANY, et al., appellants, v. UNITED THACKER COAL COMPANY. Oct. 21, 1918. Appeal from the District Court of the United States for the Southern District of West Virginia. See, also, 232 Fed. 49, 146 C. C. A. 241. Messrs. John H. Holt, of Huntington, W. Va., and E. Spencer Miller, of Philadelphia, Pa., for appellants. Messrs. C. W. Campbell, of Huntington, W. Va., Malcolm Jackson, of Charleston, W. Va., and Arthur S. Dayton, of Philippi, W. Va., for appellee.
PER CURIAM. Dismissed for want of ju risdiction upon the authority of (1) Equitable Life Assurance Soc. v. Brown, 187 U. S. 308, 314, 23 Sup. Ct. 123, 47 L. Ed. 190; Consolidated Turnpike Co. v. Norfolk, etc.. Ry. Co., 228 U. S. 596, 600, 33 Sup. Ct. 605, 57 L. Ed. 982; Brolan v. United States, 236 U. S. 216, 218, 35 Sup. Ct. 285, 59 L. Ed. 544; (2) Louisville & Nashville R. R. Co. v. Western Union Telegraph Co., 234 U. S. 369, 34 Sup. Ct. 810, 58 L. Ed. 1356; Male v. Atchison, etc., Ry. Co., 240 U. S. 97, 36 Sup. Ct. 351, 60 L. Ed. 544; (3) Shapiro v. United States, 235 U. S. 412, 35 Sup. Ct. 122, 59 L. Ed. 291. See Omaha Baum Iron Stove Co. v. Moline Plow Co., 244 U. S. 650, 37 Sup. Ct. 743, 61 L. Ed. 1371.
(248 U. S. 588) No. 140. Arthur A. BONVILLAIN, petitioner, v. H. B. HOWELL, trustee, etc. Oct. 21, 1918. On writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit. For decisions below, see 232 Fed. 370; 237 Fed. 1015, 150 C. C. A. 660. Mr. H. Generes Dufour, of New Orleans, La., for pe