"Sec. 9. That any vessel purchased, chartered, or leased from the board may be registered or enrolled and licensed, or both registered and enrolled and licensed, as a vessel of the United States and entitled to the benefits and privileges appertaining thereto: Provided, that foreignbuilt vessels admitted to American registry or enrollment and license under this act, and vessels owned, chartered, or leased by any corporation in which the United States is a stockholder, and vessels sold, leased, or chartered to any person a citizen of the United States, as provided in this act, may engage in the coastwise trade of the United States. Every vessel purchased, chartered, or leased from the board shall, unless otherwise authorized by the board, be operated only under such registry or enrollment and license. Such vessels while employed solely as merchant vessels shall be subject to all laws, regulations, and liabilities governing merchant vessels, whether the United States be interested therein as owner, in whole or in part, or hold any mortgage, lien, or other interest therein." There followed prohibitions not necessary now to be particularly considered. Section 11 (Comp. St. § 8146f) authorized the Shipping Board to form one or more corporations under the laws of the District of Columbia for the purchase, construction, equipment, lease, charter, maintenance, and operation of merchant vessels in the com in the Urgent Deficiencies Appropriation Act Another clause declared: "The President may exercise the power and * through authority hereby vested in him* such agency or agencies as he shall determine from time to time: Provided, that all money turned over to the United States Shipping Board Emergency Fleet Corporation may be expended as other moneys of said corporation are now expended. All ships constructed, purchased, or requisitioned under authority herein, or heretofore or hereafter acquired by the United States, shall be managed, operated, and disposed of as the President may direct." Comp. St. 1918, § 31151/16d. Under this authority the President made an executive order July 11, 1917, directing that the Fleet Corporation should have and exercise all power and authority vested in over of title or possession, by purchase or ters therein, and the operation, management, requisition, of constructed vessels or charand disposition of such vessels, and of all others theretofore or there*after acquired by the United States, declaring: "The powers herein delegated to the United States Shipping Board may, in the discretion of said Board, be exercised directly by the said Board or by it through the United States Shipping Board Emergency Fleet Corporation, or through any other corporation organized by it for such purpose." merce of the United States, the total capital him by said provision, so far as applicable stock not to exceed $50,000,000, and the Board to acquire for and on behalf of the to the construction of vessels, the purchase or United States not less than a majority of requisitioning of vessels in process of conthe capital stock. The act contained numer- struction, and the completion thereof, and that the Shipping Board should exercise all ous provisions imposing duties upon common carriers by water, and conferring pow-provision, so far as applicable to the taking power and authority vested in him by said ers of regulation upon the Shipping Board. The members of this Board were appointed by the President in December, 1916, and, having been confirmed by the Senate, were formally organized in the following month. By the time the United States declared war, April 6, 1917, the world's merchant shipping had reached the stage of demoralization. The President, by a proclamation dated February 5, 1917, had declared an emergency, and brought into play the prohibition of one of the clauses of section 9 of the above act against the sale, lease, or charter to a person not a citizen of the United States or the transfer to a foreign registry or flag of any vessel registered or enrolled and licensed under the laws of the United States. Soon after the declaration of war the Shipping Board, under authority of section 11 of the above act, caused to be organized (April 16, 1917) under the laws of the District of Columbia a corporation known as the United States Shipping Board Emergency Fleet Corporation, with $50,000,000 of capital stock, all owned by the United States. It was of ficered by the commissioners of the Shipping Board and their nominees, and was but an operating agency of that Board. It was under the authority thus conferred that the Lake Monroe was requisitioned while in process of construction and carried to completion by the Fleet Corporation, and thereafter operated by the Shipping Board through that corporation. She was documented in the name of the United States, and assigned to Randall & Co. as operating and managing agents, and at the time of the collision was operating under a charter executed by them as agents of the Shipping Board to a private concern for carrying coal in coastwise commerce. Reference should be made to two acts ap In this state of affairs, Congress embodied proved respectively July 15 and July 18, 1918, *253 #254 (39 Sup.Ct.) the former an amendment to the Shipping Act of 1916, the latter "An act to confer on the President power to prescribe charter rates and freight rates and to requisition vessels, and for other purposes." Chapters 152 and 157, 40 Stat. 900, 913. They were introduced as companion measures, the former as H. R. 12,100, the latter as H. R. 12,099, and proceeded pari passu through Congress. The Act of July 15th amended section 9 of the Shipping Act of 1916 with respect to some of its prohibitions, but re-enacted almost verbatim the part we have quoted from that section. The Act of July 18 begins with some definitions, and among them: "The term 'charter' means any agreement, contract, lease, or commitment by which the possession or services of a vessel are secured for a period of time, or for one or more voyages, whether or not a demise of the vessel." In view of this legislation we regard the contention of the government that the Shipping Act of 1916 has no application to the Lake Monroe as untenable. The argument adduced in support of it would cause the restrictive provisions of the Act of 1916 to operate only with respect to vessels constructed or acquired under that particular act and would render the powers conferred upon the Shipping Board and the Fleet Corporation by the executive order of July 11, 1917, absolute powers, subject to no regulation except such as the President might from time to time prescribe. But at the time of the emergency provision of June 15, 1917, the Shipping Board had been established as a public commission, with broad administrative powers and subject to definite restrictions, and the Fleet Corpora tion had been created as its agency, financed with public funds. The emergency shipping legislation evidently was enacted in the expectation that the President would employ the Shipping Board and the Fleet Corporation as his agencies to exercise the new powers, for the Fleet Corporation was mentioned in the act, and it was known to be but an arm of the Board. It is not necessary to hold that Congress, while entertaining this expectation, went to the extent of restricting the President to those agencies; but it is not to be believed that they intended he should exercise the powers arbitrarily. And when in fact he designated the Fleet Corporation to exercise those powers so far as they pertained to the construction of vessels and the requisitioning of vessels in process of construction, and the Shipping Board so far as they applied to the operation, management, and disposition of vessels, it is to be presumed that he did so because of the general powers that already had been conferred upon them by law, and because they were subject to the regulatory provisions that Congress had enacted. September 7, 1916, that vessels purchased, chartered, or leased from the Shipping Board, while employed solely as merchant vessels, should be subject to all laws, regulations, and_liabili*ties governing merchant vessels, whether the United States were interested therein as owner or otherwise, was a most material restriction, deemed by Congress to be essential to subject them to the same duties and liabilities as privately owned merchant vessels with which they competed. That Congress considered this provision and the other provisions of the Act of 1916 as having living force and general application after the executive order of July 11, 1917, is manifest from the amendatory act approved July 15, 1918, while the war was at its height, and treated by Congress as an emergency war measure. See House Rep. 568 and Senate Rep. 536, 65th Cong., 2d Sess.; also House Rep. 569 and Senate Rep. 535, same Session, relating to the companion measure. These reports and the accompanying bills show that the Shipping Board was understood to be executing all its powers under the regulations prescribed by the Act of 1916. [2] The government contends further that section 9 of that act has no application to the present case, because liability is imposed thereby only with respect to vessels "purchased, chartered or leased from" the Shipping Board, and only when "employed solely as merchant vessels"; it being insisted that the Lake Monroe does not come within either of these descriptions. The return, however, makes it clear that at the time of the collision she was operating under a charter executed by the agents of the Board to a certain coal company; and even were it merely an agreement whereby the shippers paid a stipulated rate per ton for the cargo carried, we think that this would be a charter within the meaning of the Act of 1916. The words "purchased, chartered or leased" indicate an intent to include a contract for the temporary use of a vessel or its services, not amounting to a demise of the ship; in short, the term "charter" was here employed in a sense as broad as the definition afterwards embodied in the Act of July 18, 1918. [3] We cannot accede to the suggestion that the Lake Monroe was not employed "solely as a merchant vessel" because she was assigned to the New England coal trade, and because at that time the government, through the Fuel Administration, was rationing the coal supply of the country. The language of section 9 "such vessels, while employed solely as merchant vessels," must be read in connection with the phrase "whether the United States be interested therein as owner, in whole or in part, or hold any mortgage, lien, or other interest therein." Her The provision of section 9 of the Act of service at the time was purely commercial, *256 *255 and she was subject by the terms of the act [are appeals by the United States from judgto the ordinary liability of a merchant ves- ments entered in the Court of Claims. In sel, notwithstanding the indirect interest of each an officer in the army recovered comthe government in the outcome of her voyage.pensation under the Act of March 3, 1885, c. [4] We deem it clear, also, that among the 335, 23 Stat. 350 (Comp. St. § 6403), for the liabilities designated by the section is the loss, while in the service, without fault or liability of a merchant vessel to be subjected negligence on his part, of privately owned to judicial process in admiralty for the con-personal property. In each case the claim sequences of a collision. had been duly presented within two years of Order to show cause discharged, and pe- the occurrence of the loss, and the Secretary tition dismissed. (250 U. S. 328) UNITED STATES v. BABCOCK. SAME v. HAYDEN. of War had decided that the articles in question were "reasonable, useful, necessary, and proper for" such officer "while in quarters, engaged in the public service, in the line of duty." In the Babcock Case the horse of a captain stationed at the Presidio died in 1910 of strangulation because the government fur (Argued April 15, 1919. Decided June 2, 1919.) nished as the forage ration barley with the The United States, when creating rights in individuals against it, need not provide a remedy through the courts. 2. COURTS 458-CLAIMS AGAINST UNITED STATES JURISDICTION - PRIVATE PROPERTY LOST IN MILITARY SERVICE. awns on it. In the Hayden Case, a lieutenant stationed at Texas City, Tex., lost in 1915 his personal effects during a hurricane and inundation, while he was endeavoring to save the property of the government and of others as well as his own. The claim for the horse had been disallowed by the Auditor of the War Department on the ground that "the death of officer's horse was not caused by any exigency of the service, nor from a cause incident to or produced by the military serv ice." He had disallowed the claim for the personal effects because "the *property was not lost or destroyed by being shipped on an unseaworthy vessel, nor by reason of the claimant giving his attention to saving prop Under Act March 3, 1885 (Comp. St. 6403), providing for ascertainment and determination by Treasury officers of value of private property of officers and enlisted men in the military service, lost or destroyed in such service under stated circumstances, and payment of amount ascertained, and that any claim present-erty belonging to the United States," and the ed and acted on under authority of the act shall be held as finally determined and shall never thereafter be reopened or considered, the Treasury Department has jurisdiction of such a claim, to the exclusion of the Court of Claims. 3. UNITED STATES PRESENTMENT SERVICE. 99-CLAIMS AGAINSTHORSES LOST IN MILITARY Under Act Jan. 9, 1883, and Act Aug. 13, 1888, right to present claims against the United States, under Rev. St. § 3482 (Comp. St. 6390), as amended by Act June 22, 1874 (Comp. St. §§ 6391, 6392), for horses lost in military service, finally expired in 1891. Appeals from the Court of Claims. Two actions, one by Conrad S. Babcock and the other by Herbert B. Hayden, against the United States. From judgments for plaintiffs (53 Ct. Cl. 629), the United States appeals. Reversed. Auditor's decision was affirmed on appeal by the Comptroller of the Treasury. The Auditor made no finding as to the value of the property lost. This was fixed by the Court of Claims at $200 for the horse and $333 for the personal effects; and for these amounts it entered judgments on the authority of Newcomber v. United States, 51 Ct. Cl. 408, and Andrews v. United States, 52 Ct. Cl. 373. The loss in each case occurred prior to April 5, 1917, so that the rights of the parties are not affected by the provisions of the Act of March 28, 1918, c. 28, 40 Stat. 459, 479, 480, or chapter VI of the Act of July 9, 1918, c. 143, 40 Stat. 845, 880, 881. The questions whether the Act of March 3, 1885 authorizes recovery for horses under any circumstances and under what circumstances it authorizes recovery for other personal property have long been the subject of Mr. Assistant Attorney General Frierson, controversy in the Auditing Department and for the United States. in that of the Comptroller of the Treasury. Mr. George A. King, of Washington, D. C., See 20 Decisions of the Comptroller, 238. for appellees. But here we are confronted with the preliminary inquiry: Has Congress conferred upMr. Justice BRANDEIS delivered the opin- on the Court of Claims jurisdiction to deion of the Court. termine in any case whether recovery may These cases, which were argued together, be had under that statute for an article lost For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *329 (39 Sup.Ct.) or destroyed? The right asserted is based | United States, 85 Fed. 550, 557, 29 C. C. A. upon the provision which declares: "That the proper accounting officers of the Treasury be, and they are hereby, authorized and directed to examine into, ascertain, and determine the value of the private property belonging to officers and enlisted men in the military service of the United States which has been, or may hereafter be, lost or destroyed in the military service, under the following circumstances: " and that "the amount of such loss so ascertained and determined shall be paid out of any money in the Treasury not otherwise appropriated, and shall be in full for all such loss or damage." [1, 2] These general rules are well settled: (1) That the United States, when it creates rights in individuals against itself, is under no obligation to provide a remedy through the courts. United States ex rel. Dunlap v. Black, 128 U. S. 40, 9 Sup. Ct. 12, 32 L. Ed. 354; Ex parte Atocha, 17 Wall. 439, 21 L. Ed. 696; Gordon v. United States, 7 Wall. 188, 195, 19 L. Ed. 35; De Groot v. United States, 5 Wall. 419, 431, 433, 18 L. Ed. 700; Comegys v. Vasse, 1 Pet. 193, 212, 7 L. Ed. 108. (2) That where a statute creates a right and provides a special remedy, that remedy is exclusive. Wilder Manufacturing Co. v. Corn Products Co., 236 U. S. 165, 174, 175, 35 Sup. Ct. 398, 59 L. Ed. 520, Ann. Cas. 1916A, 118; Arnson v. Murphy, 109 U. S. 238, 3 Sup. Ct. 184, 27 L. Ed. 920; Barnet v. National Bank, 98 U. S. 555, 558, 25 L. Ed. 212; Farmers' & Mechanics' National Bank v. Dearing, 91 U. S. 29, 35, 23 L. Ed. 196. Still the fact that the right and the remedy are thus intertwined might not, if the provision stood alone, require us to hold that the remedy expressly given excludes a right of review by the Court of Claims, where the decision of the special tribunal involved no disputed question of fact and the denial of compensation was rested wholly upon the construction of the act. See Medbury v. United States, 173 U. S. 492, 498, 19 Sup. Ct. 503, 43 L. Ed. 779; Parish v. MacVeagh, 214 U. S. 124, 29 Sup. Ct. 556, 53 L. Ed. 936; McLean v. United States. 226 U. S. 374, 33 Sup. Ct. 122, 57 L. Ed. 260; United States v. Laughlin (No. 200), 249 U. S. 440, 39 Sup. Ct. 340, 63 L. Ed. 696, decided April 14, 1919. But here Congress has provided: "That any claim which shall be presented and acted on under authority of this act shall be held as finally determined, and shall never thereafter be reopened or considered." These words express clearly the intention to confer upon the Treasury Department exclusive jurisdiction and to make its decision final. The case of United States v. Harmon, 147 U. S. 268, 13 Sup. Ct. 327, 37 L. Ed. 164, strongly relied upon by claimants, has no application. Compare D. M. Ferry & Co. v. 345. [3] In the Babcock Case claimant insists also that section 3482 of the Revised Statutes (Comp. St. § 6390), as amended by Act of June 22, *1874, c. 395, 18 Stat. 193 (Comp. St. §§ 6391, 6392) affords a basis for the recovery. That section provided for reimbursement for horses lost in the military service, among other things "in consequence of the United States failing to supply sufficient forage." The 1874 amendment provided for reimbursement in any case "where the loss resulted from any exigency or necessity of the military service, unless it was caused by the fault or negligence of such officers or enlisted men." Even if these statutes were applicable to facts like those presented here, there could be no recovery; because under Act Jan. 9, 1883, c. 15, 22 Stat. 401, and Act Aug. 13, 1888, c. 868, 25 Stat. 437, the right to present claims under section 3482 of the Revised Statutes as amended finally expired in 1891. See Griffis v. United States, 52 Ct. Cl. 1, 170. The Court of Claims was without jurisdiction in either case, and the judgments are Reversed. On writ of error under Act March 2, 1907 (Comp. St. § 1704), to review an order of the District Court sustaining a demurrer to and quashing an indictment alleging a violation of the Sherman Anti-Trust Act, held, that the indictment charged no offense, for the District Court, whose interpretation is binding, construed the indictment as merely alleging that the defendant manufacturer fixed resale prices not averred to be unreasonable, and declined to sell to customers who did not agree to maintain the same. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 39 SUP.CT.-30 3. MONOPOLIES 17(2) RESTRAINT OF TRADE TRUST ACT. COMBINATION IN The Sherman Anti-Trust Act is intended to prohibit monopolies and combinations, which probably would interfere with the free exercise of their rights by those engaged, or who wish to engage in trade; but in the absence of any purpose to create or maintain a monopoly a manufacturer engaged in private business may exercise his discretion as to parties with whom he will deal, and may refuse to sell to those who will not maintain specified resale prices. In error to the United States District Court for the Eastern District of Virginia. Colgate & Co. was indicted for an alleged violation of the act entitled "An act to protect trade and commerce against unlawful restraints and monopolies," approved July 2, 1890, commonly known as the Sherman AntiTrust Act, and, a demurrer having been sustained and the indictment quashed (253 Fed. 522), the United States brings error. firmed. Af the United States, that is to say, as to the substance of the indictment and the conduct and act charged therein," the trial court sustained a demurrer to the one before us. Its reasoning and conclusions are set out in a written opinion. 253 Fed. 522. pretation of an indictment itself couched in We are confronted by an uncertain interrather vague and general language. Counsel differ radically concerning the meaning of the opinion below and there is much room for the controversy between them. The indictment runs only against Colgate & Co., a corporation engaged in manufacturing soap and toilet articles and selling them throughout the Union. It makes no reference to monopoly, and proceeds solely upon the theory of an unlawful combination. After setting out defendant's organization, place and character of business, and general methods of selling and distributing products through wholesale and retail merchants, it alleges: "During the aforesaid period of time, within the said Eastern district of Virginia and Mr. G. Carroll Todd, Asst. Atty. Gen., for throughout the United States, the defendant the United States. Mr. Charles E. Hughes, of New York City, for defendant in error. knowingly and unlawfully created and engaged in a combination with said wholesale and retail dealers, in the Eastern district of Virginia and throughout the United States, for the purpose and with the effect of procuring adher Mr. Justice McREYNOLDS delivered the ence on the part of such dealers (in reselling, opinion of the Court. [1] Writs of error from Districts Courts directly here may be taken by the United States "from a decision or judgment quashing, setting aside, or sustaining a demurrer to, any indictment, or any count thereof, where such decision or judgment is based upon the invalidity, or construction of the statute upon which the indictment is founded." Act March 2, 1907, c. 2564, 34 Stat. 1246 (Comp. St. § 1704). Upon such a writ "we have no authority to revise the mere interpretation of an indictment and are confined to ascertaining whether the court in a case under review erroneously construed the stat ute." "We must accept that court's interpretation of the indictments and confine our review to the question of the construction of the statute involved in its decision." United States v. Carter, 231 U. S. 492, 493, 34 Sup. Ct. 173, 174 (58 L. Ed. 330); United States v. Miller, 223 U. S. 599, 602, 32 Sup. Ct. 323, 324 (56 L. Ed. 568). Being of opinion that "the indictment should set forth such a state of facts as to make it clear that a manufacturer, engaged in what was believed to be the lawful conduct of its business, has violated some known law before it can be haled into court to answer the charge of a commission of a crime," and holding that it "fails to charge any offense under the Sherman Act [Act July 2, 1890, c. 647, 26 Stat. 209) or any other law of such products sold to them aforesaid) to resale prices fixed by the defendant, and of pre*venting such dealers from reselling such products at lower prices, thus suppressing competition amongst such wholesale dealers, and amongst such retail dealers, in restraint of the aforesaid trade and commerce among the several States, in violation of the act entitled 'An act to protect trade and commerce against unlawful restraints and monopolies,' approved July 2, 1890." Following this is a summary of things done to carry out the purposes of the combination: Distribution among dealers of letters, telegrams, circulars and lists showing uniform prices to be charged; urging them to adhere to such prices and notices, stating that no sales would be made to those who did not; requests, often complied with, for information concerning dealers who had departed from specified prices; investigation and discovery of those not adhering thereto and placing their names upon "suspended lists;" requests to offending dealers for assurances and promises of future adherence to prices, which were often given; uniform refusals to sell to any who failed to give the same; sales to those who did; similar assurances and promises required of, and given by, other dealers followed by sales to them; unre stricted sales to dealers with established accounts who had observed specified prices, etc. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *303 |