⚫266 (39 Sup.Ct.) gas in said city, be and the same is hereby dismissed, and the restraining order heretofore granted against the enforcement of said ordinance is hereby dissolved." questions of working capital, going concern value, the propriety of various items of operating expense, the rate of return that reasonably ought to be allowed upon capital invested in a plant and business of this character in Nebraska, and the other questions usual in such cases. The special master conducted a patient and elaborate in Upon this record, it is very clear that so much of the decree of the Circuit Court entered April 6, 1909, as held the occupation tax ordinance void and restrained its en-vestigation. An enormous mass of evidence forcement was untouched by the former appeal and unaffected by the subsequent proceedings. The decree now under review does not modify the effect of the former decree upon this subject; hence the adjudication of the invalidity of the occupation tax ordinance and the award of an injunction to restrain its enforcement are to be taken as a part of the final decree in the cause. We deem it entirely clear also that the issue of the validity of that ordinance upon grounds of state law was fairly within the pleadings, and that this part of the decree is impregnable against collateral attack, in this court or elsewhere. This being so, the assignment that the District Court erred in its decree of September 23, 1915, in not decreeing that the occupation tax ordinance was in violation of the Fourteenth Amendment because amounting to a denial of the equal protection of the laws is groundless; there was no occasion for the court to make any decree to that effect, since the matter had been conclusively determined against the validity of this ordinance by the final decree of April 6, 1909, which remained in this respect unappealed from. In order to render the matter free from doubt the decree of September 23, 1915, will now be modified by embodying in it a reiteration of that part of the decree of April 6, 1909, which held the occupation tax ordi- [4, 5] The attack upon the rate ordinance brings under consideration questions of the valuation of the plant, the proper method of estimating and applying depreciation charges, was produced before him, and analyzed in his report. In abridged form, it occupies nearly 2,000 pages of printed transcript in this court, besides numerous tabular exhibits. It would be impossible, within reasonable limits, to recite the substance of the evidence or review the master's findings. We do not feel called upon to do this. Knoxville v. Water Co., 212 U. S. 1, 17, 29 Sup. Ct. 148, 53 L. Ed. 371. The findings are subjected to numerous and minute criticisms, and some of these seem to possess *force. We cannot approve the finding that no rate yielding as much as 6 per cent. upon the invested capital could be regarded as confiscatory, in view of the undisputed evidence, accepted by the master, that 8 per cent. was the lowest rate sought and generally obtained as a return upon capital invested in banking, merchandising, and other businesses in the vicinity; 7 per cent. being the "legal rate" of interest in Nebraska. Complainant had not such a monopoly nor were its profits "virtually guaranteed" in such a sense as to permit the public authorities to restrict it to a return of 6 per cent. upon its invested capital. It is not entirely clear, however, that the rate ordinance did so restrict it. Again, we question the propriety of the master's treatment of "going value," which he seems to have estimated at less than otherwise he would have placed it upon the theory that the company's business had been developed, at the expense of the public, in the expenditure of past earnings exceeding a fair return upon the capital invested, and this without any finding, or any clear evidence to which our attention has been called, that past earnings were excessive. On the other hand, the master erred in favor of complainant by allowing as operating expenses occupation taxes for the years 1907 to 1909, inclusive, these taxes not having been paid, and the taxing ordinance applicable to that period having been held invalid by the decree of the Circuit Court entered April 6, 1909, and so held since his report by the state Supreme Court. And it is possible he erred in allowing occupation taxes for the year 1910 and subsequent years, since these were not in fact paid. As we have seen, the occupation tax erroneously allowed for the crucial year 1907 amounted to more than 1 per cent. upon the invested capital at the master's valuation. He also appears to have been unduly liberal to the company in the allowance for *267 $269 *268 working capital, and in some other items of valuation, as well as in respect of some *expenditures allowed as operating expense. Without going into details, we content ourselves with announcing our general conclusion that, having regard to the entire period under investigation, we are unable to say that the master erred in holding that the ordinance was not shown to have been confiscatory in its effect. It is probable that in the years 1907 and 1912 the net return was close to the line, if not below it, but that in the other years examined it was at least 7 per cent.; and there are too many doubtful items for us to adjudge the ordinance void, in the absence of an actual and timely test. [6] The decree dismissed the bill, however, so far as it related to the rate ordinance, without reservation or qualification. Perhaps it would go without saying, but in our opinion the decree ought to be modified so as to permit complainant to make another application to the courts for relief against the operation of the ordinance hereafter, if it can show, as a result of its practical test of the dollar rate since May 1, 1915, or upon evidence respecting values, costs of operation, and the current rates of return upon capital as they stand at the time of bringing suit and are likely to continue thereafter, that the rate ordinance is confiscatory in its effect under the new conditions. It is a matter of common knowledge that, owing principally to the world war, the costs of labor and supplies of every kind have greatly advanced since the ordinance was adopted, and largely since this cause was last heard in the court below. And it is equally well known that annual returns upon capital and enterprise the world over have materially increased, so that what would have been a proper rate of return for capital invested in gas plants and similar public utilities a few years ago furnishes no safe criterion for the present or for the future. The final decree of September 23, 1915, will be modified by embodying in it a reiteration of that part of the *final decree of April 6, 1909, which held that the ordinance of the city of Lincoln approved December 10, 1906, levying an occupation tax against complainant, was illegal and void because violative of the Constitution of the state of Nebraska, and that the enforcement of the same as to complainant should be perpetually enjoined. The decree of September 23, 1915, will be further modified so that the dismissal of the bill of complaint, in so far as it relates to the ordinance of the city of Lincoln approved November 19, 1906, establishing a rate of charges for gas in said city, shall be without prejudice to the commencement of a new action to restrain the enforcement of said ordinance hereafter, and decree, as thus modified, affirmed, with costs. Assignment to a certain amount by the obligee in a bond of the principal's obligation thereon carries with it the obligation of the surety given to secure the faithful performance of the duty required of the principal. 3. COURTS ~312(6) — FEDERAL JURISDICTION -ACTION BY ASSIGNEE "ASSIGNEE WITHOUT FORMAL ASSIGNMENT." Plaintiff, in action against executor of the principal in a bond and the surety thereon, by the assignee, from an obligee, of the principal's obligation thereon, to a certain amount, is aswithin Judicial Code, § 24 (Comp. St. § 991), signee, without formal assignment, of the bond, declaring that no district court shall have cognizance of a suit to recover on a chose in action in favor of an assignee unless such suit might have been prosecuted there had there been no assignment. In Error to the District Court of the United States for the Southern District of New York. Action by the Brainerd, Shaler & Hall Quarry Company against Wilson B. Brice, executor of Henry Van Schaick, deceased, and another. Judgment of dismissal, and plaintiff brings error. Affirmed. Mr. E. D. Worcester, of New York City, for plaintiff in error. Mr. Bronson Winthrop, of New York City, for defendants in error. Mr. Justice DAY delivered the opinion of the Court. The Quarry Company brought an action at law in the District Court of the United States for the Southern District of New York to recover $20,000 and interest from Wilson B. Brice as executor of Henry Van Schaick, deceased, and the American Surety Company. Answers were filed and the case was at issue, and came on for trial, when, upon motion of the defendants, the action was dismissed for want of jurisdiction. The only question here concerns the correctness For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *230 +231 (39 Sup.Ct.) of this ruling of the District Court. The ground of the dismissal is thus stated in the record: dren, one of whom was Eugene *Van Schaick, The complaint then recites certain conveyances, and the prosecution of a partition "In this cause I hereby certify that this writ suit, the decree in which was, by order of error is allowed solely, and that the order of the court, considered upon the motion to herein dismissing the complaint was based sole dismiss. In that suit it was adjudged that ly, on the ground that no jurisdiction of the Henry Van Schaick had an estate as tenant District Court existed; that this question has for life in one-half of the said real estate; been determined by me on the following grounds: that among others Sarah Van Schaick, wife "This action is brought on a surety bond made of Eugene Van Schaick, had an estate in reby one Henry Van Schaick (since deceased) as mainder in the land to commence in possesprincipal, and the defendant the American Surety Company of New York, as surety, for the sion upon the death of Henry Van Schaick. purpose of securing the due payment, at Henry It being found that the land could not be Van Schaick's death, of the remainder interests divided, it was ordered sold. The sale for in a certain fund of money held by Henry Van $134,369.74 is recited. One-half of the proSchaick as life tenant; that one Eugene Van ceeds, $67,184.87, was found to belong to Schaick (since deceased) was at the time of the Henry Van Schaick for life, at his death to assignment below mentioned the owner of one vest in the descendants of Henry Van Schaick of the remainder interests secured by said bond; as should be then living, or in such persons as that Eugene Van Schaick, during the continuance of the life estate, assigned to the plaintiff should then be the legal owners of said a portion of his said remainder interest, and shares. The decree provided that the fund thereafter survived the said *Henry Van Schaick, might be paid to Henry Van Schaick upon and this action is based on such assignment; his giving security to the remaindermen, and that Eugene Van Schaick was in his lifetime a provision was made for giving the bond now citizen and resident of the state of New York, sued upon. Henry Van Schaick as principal and both of the defendants are citizens and resi- and the American Surety Company then exedents of the state of New York; that this suit cuted the bond in the sum of $75,000. The could not have been prosecuted in this court upon said remainder interest and said bond if obligees of the bond were the descendants of no such assignment had been made." Henry Van Schaick living at the time of his death, the amount to be paid to them, their executors, administrators, or assigns. The condition of the bond was that Henry Van Schaick during his lifetime should safely keep and preserve said principal sum, and the same should be paid over to his descendants as provided in the decree. Eugene Van Schaick acquired the interest which had been assigned to his wife. On May 9, 1901, Eu Section 24 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1091 [Comp. St. § 991]), among other things, provides: "No district court shall have cognizance of any suit (except upon foreign bills of exchange) to recover upon any promissory note or other chose in action in favor of any assignee, or of any subsequent holder if such instrument be payable to bearer and be not made by any corporation, unless such suit might have been prose-gene Van Schaick assigned to the Quarry cuted in such court to recover upon said note or other chose in action if no assignment had been made." To determine the character of the action for the purposes of jurisdiction recourse must be had to the allegations of the complaint. They are quite voluminous, but for our purposes may be summed up as stating: The plaintiff is a corporation of the state of Connecticut. The defendant the American Surety Company is a corporation of the state of New York. The defendant Wilson B. Brice is a resident and citizen of the state of New York. (It was conceded for the purposes of the motion that Eugene Van Schaick was a citizen of New York.) Jane C. Van Schaick died May 20, 1893, seized of certain real estate in the state of New York. By her last will and testament she gave onehalf of her real estate to Henry Van Schaick, of New York, during his life, with remainder to his descendants who should be living at the time of his decease and living also at the time of the testatrix's decease, if she should survive him. The will was duly probated on June 28, 1893. Henry Van Schaick survived the testatrix, and had living chil Company the sum of $20,000, to be paid out him. #232 Eugene Van Schaick died on January 27, 1916. Henry Van Schaick did not keep and preserve the principal of said $67,148.67, the same was not paid as provided in the decree, but was lost by said Henry *Van Schaick. The complaint avers* demand of the $20,000 and interest, and prays judgment against the defendants. [1, 2] The action thus appears to have been brought upon the assignment of Eugene Van Schaick, a citizen of New York, to the plaintiff, a corporation of Connecticut, against defendants, who were residents and citizens of New York. Eugene Van company against the claim in the hands of in the federal court, being himself a citizen and resident of New York. This suit was an action at law upon the bond. It was against both the executor and the surety company. The surety company was liable at law only upon the bond. The complaint, fairly considered, shows that such was the real nature of the suit. It contained but & (250 U. S. 246) THE LAKE MONROE. single cause of action, and prayed for joint judgment against the executor of Henry Van Schaick and the surety company. Henry Van Schaick was liable to Eugene Van Schaick upon the bond. Eugene Van Schaick | (Argued April 21 and 22, 1919. Decided June assigned that obligation to the plaintiff to the extent of $20,000. That assignment carried with it the obligation of the surety company given to secure the faithful performance of the duty required of Henry Van Schaick. George v. Tate, 102 U. S. 564, 571, 26 L. Ed. 232. [3] The defenses, if any, of the surety company against the claim in the hands of Eugene Van Schaick could have been urged against the plaintiff. We think the plaintiff was an assignee within the meaning of section 24, without formal assignment of the bond. Shoecraft v. Bloxham, 124 U. S. 730, 8 Sup. Ct. 686, 31 L. Ed. 574; Plant Investment Co. v. Jacksonville, etc., Ry. Co., 152 U. S. 71, 14 Sup. Ct. 483, 38 L. Ed. 358. Brown v. Fletcher, 235 U. S. 589, 35 Sup. Ct. 154, 59 L. Ed. 374, is an entirely different suit from the one now under consideration. In that action there was an assignment of an interest in a trust estate by the beneficiary, who was a resident and citizen of New York, to the complainants, who were residents and citizens of Pennsylvania and suit was brought in the District Court of the United States for the Southern District of 2, 1919.) 1. ADMIRALTY 6-LIABILITY TO MERCHANT Shipping Board Act Sept. 7, 1916, § 9 (Comp. St. § 8146e), declaring that vessels purchased, chartered, or leased from the Shipping Board, established by the act, while employed solely as merchant vessels, shall be subject to all laws, regulations, and liabilities governing merchant vessels, held, in view of Act July 15, 1918, amending Shipping Board Act, and Act July 18, 1918, conferring power on the president as to charter rates, etc., to apply to vessels requisitioned by the President under authority of the emergency shipping fund clause of the Emergencies Appropriation Act of June 15, 1917 (Comp. St. 1918, § 31151/16d) through the Emergency Fleet Corporation, organized by the Shipping Board under authority of section 11 of the act of 1916 (Comp. St. § 8146f), and constituting only an operating agency of that Board. President power as to charter rates. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Charter.] 3. ADMIRALTY 6 “EMPLOYED SOLELY AS MERCHANT VESSELS" FUEL ADMINISTRATION. Shipping Board Act Sept. 7, 1916, § 9 *New York, the defendants being residents and (Comp. St. § 8146e), declaring that vessels "purchased, chartered or leased" from the Shipping citizens of New York. It was held that Board shall be subject to all laws, regulations, the suit to recover this interest in a trust and liabilities governing merchan+ vessels, indiestate was not a suit by an assignee within cates intent to include a contract for temporary the meaning of section 24 of the Judicial use of vessel or its services, not amounting to Code. That suit, this court held, was not a a demise of it, as an agreement whereby the suit upon a chose in action, but was one to shippers pay a stipulated rate per ton for cargo carried; "chartered" being employed in a sense recover upon the conveyance of an alienable as broad as the definition of "charter" afterinterest acquired from the owner in a trustwards embodied in Act July 18, 1918, giving the estate. Such interests might be sued for in the federal courts when the requisite amount and diversity of citizenship exist. 235 U. S. 598, 599, 35 Sup. Ct. 154, 59 L. Ed. 374. But here the case is different; the suit was upon the bond, the right to recover arising from the assignment of the interest of EuThough a vessel was assigned to the New gene Van Schaick in the fund in the hands England coal trade, and at the time the governof Henry Van Schaick. It was not a suit toment, through the Fuel Administration, was rarecover the interest of Eugene Van Schaick in the estate because of the wrongful conversion thereof by Henry Van Schaick. To such a suit the surety company would not be a proper party. It was, as we have stated, an action upon a single cause of action against the executor of the principal and the surety upon the contract evidenced by the bond. The right to such action was derived by assignment from Eugene Van Schaick, a citizen and resident of New York, and as be could not have sued in the federal court, his assignee, the plaintiff, could not, by reason of section 24 of the Judicial Code. Affirmed. tioning the coal supply of the country, she could therein." 4. ADMIRALTY LIABILITIES GOVERNING MERCHANT VESSELS ADMIRALTY PROCESS FOR COLLISION. Liability of a merchant vessel to be subjected to judicial process in admiralty for collision For other cases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes 249 *248 247 (39 Sup.Ct.) is among "all laws, regulations and liabilities | the moneys received by them to, the Emergoverning merchant vessels" to which Shipping gency Fleet Corporation as the agent of the Board Act Sept. 7, 1916, § 9 (Comp. St. § 8146e), United States Shipping Board. At the time declares vessels chartered from the Shipping of the collision the Lake Monroe was loaded Board shall, under certain circumstances, bewith coal, and operating under a charter subject. executed by Randall & Co., as agents of the Shipping Board, to the New England Fuel & Transportation Company, a private concern in Boston; the cargo having been purchased from a private owner for private use, and the freight for its carriage paid by the Transportation Company to Randall & Co. The District Court, conceding that the Lake Monroe, being a government-owned ves *Mr. Edward E. Blodgett, of Boston, Mass., sel, would be exempt from arrest except for for respondent. the provisions of section 9 of the Shipping Board Act of September 7, 1916, c. 451, 39 Mr. Justice PITNEY delivered the opin- Stat. 728, 730 (Comp. St. § 8146e), held that, ion of the Court. because at the time of the collision she was employed solely as a merchant vessel, by the terms of that section she was subject to arrest on process in rem to answer for the collision. [1] It is the principal contention of the government that the Shipping Board Act has no application to the Lake Monroe because she was requisitioned by the President through the Emergency Fleet Corporation under the authority of other legislation, was Upon petition of the United States this court granted an order to show cause why a writ of prohibition or mandamus should not be issued in order to prevent the United States District Court for the District of Massachusetts, sitting in admiralty, from directing the seizure, attachment, or arrest of a steam vessel known as the Lake Monroe, owned and operated by the government of the United States, to satisfy a claim of the master and part owner of the American aux-documented in the name of the United iliary fishing schooner Helena for damages arising out of a collision between the two vessels which occurred on October 8, 1918, off the coast of Cape Cod. A libel having been filed in the District Court in behalf of the Helena against the Lake Monroe to recover damages, and praying that process issue for the seizure and attachment of the steamship, the United States appearing specially, filed suggestions to the effect that, as the steamer was the property of the United States and in its possession and control, the court was without jurisdiction to enforce claims against her by process. States, and then employed by the President through the Shipping Board and the Fleet Corporation. This contention renders it necessary to review the several acts of legisla tion and the executive action that has been had pursuant thereto. The Act of September 7, 1916, passed before the United States entered the great war, but when our commerce already was feeling the ill effects of the world-wide shortage in shipping occasioned by that war, is entitled: Board for the purpose of encouraging, developing, and creating a naval auxiliary and naval "An act to establish a United States Shipping reserve and a merchant marine to meet the requirements of the commerce of the United States with its territories and possessions and with foreign countries; to regulate carriers by water engaged in the foreign and interstate commerce of the United States; and for other purposes." The essential facts are as follows: The Lake Monroe, while in process of construction on the Great Lakes, was requisitioned and completed by the United States Shipping Board Emergency Fleet Corporation, and on completion was delivered to the United States Shipping Board for operation, and thereafter It created a board of five commissioners, assigned by that board, through the Emer- and authorized them (section 5 [Comp. St. gency Fleet Corporation, to the firm of Wil-§ 8146c]), with the approval of the President, liam H. Randall & Co., of Boston, as operating and managing agents, that firm being a copartnership having experience in the operation of privately owned vessels for commercial purposes. They selected the master and other officers of the vessel, put them in charge of her, and furnished her crew; and thereafter they manned, equipped, and repaired her, collected freight moneys from the consignees, and paid the expenses of manning, equipping, and supplying her, and other running expenses, and for these services they were to be paid by, and were to account for to cause to be constructed and equipped, in American shipyards or elsewhere, or to purchase, lease, or charter, "vessels suitable, as far as the commercial requirements of the marine trade of the United States may permit for use as naval auxiliaries or army transports or for other naval or military purposes" and also (section 7 [Comp. St. 8146d]) to charter, lease, or sell to any citizen of the United States any vessel so purchased or constructed. The important section 9 in its original form, provided as follows. *250 |