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with it the power to create indebtedness and ing for itself what lands shall be included taxation for its payment." in a district or what lands will be benefited

The court further held that the act constituted due process, and that the passage and publication of an ordinance establishing a sewer district constituted sufficient notice and conferred jurisdiction upon the city authorities to perform the work and provide payment therefor. This was followed in City of Muskogee v. Rambo, 40 Okl. 672, 680, 138 Pac. 567, and also in the present case.

by the construction of a sewer, submits the question to some board or other inferior tribunal with administrative or quasi judicial authority, the inquiry becomes in its nature judicial in such a sense that property owners are entitled to a hearing or an opportunity to be heard before their lands are included. Fallbrook Irrigation District v. Bradley, 161 U. S. 112, 166, 167, 174, 175, 17 Sup. Ct. 56, 41 L. Ed. 369; Parsons v. District of Columbia, 170 U. S. 45, 52, 18 Sup. Ct. 521, 42 L. Ed. 943; Embree v. Kansas City Road District, 240 U. S. 242, 247, 36 Sup. Ct. 317, 60 L. Ed. 624. But they have no application to a case where, as in the case before us, full legislative power over the subject-matter has been conferred by the state upon a municipal corporation. Where that has been done, a legislative determination by the local legis

So far, therefore, as the present ordinance determined that a district sewer should be constructed, and established the bounds of the district for the purpose of determining what property should be subjected to the special cost of constructing it, there was an authorized exercise of the legislative power of the state, which, according to repeated decisions of this court, was not wanting in due process of law because of the mere fact that there was no previous notice to the property | lative body is of the same effect as though owners or opportunity to be heard. The made by the general Legislature. Withnell question of distributing or apportioning the v. Ruecking Construction Co., 249 U. S. 63, burden of the cost among the particular prop- 70, 39 Sup. Ct. 200, 63 L. Ed. 479. erty owners is another matter. Spencer v. Merchant, 125 U. S. 345, 355, 357, 8 Sup. Ct. 921, 31 L. Ed. 763; Paulsen v. Portland, 149 U. S. 30, 40, 13 Sup. Ct. 750, 37 L. Ed. 637; French v. Barber Asphalt Paving Co., 181 U. S. 324, 343, 21 Sup. Ct. 625, 45 L. Ed. 879; Shumate v. Heman, 181 U. S. 402, 21 Sup. Ct. 645, 45 L. Ed. 916, 922, affirming Heman v. Allen, 156 Mo. 534, 57 S. W. 559; Wagner v. Baltimore, 239 U. S. 207, 218, 36 £up. Ct. 66, 60 L. Ed. 230; Withnell v. Ruecking Construction Co., 249 U. S. 63, 39 Sup. Ct. 200, 63 L. Ed. 479..

We do not mean to say that if in fact it were made to appear that there was an arbitrary and unwarranted exercise of the leg islative power, or some denial of the equal protection of the laws in the method of exercising it, judicial relief would not be accorded to parties aggrieved. The facts of this case raise no such question. See Wagner v. Baltimore, 239 U. S. 207, 220, 36 Sup. Ct. 66, 60 L. Ed. 230; Houck v. Little River District, 239 U. S. 254, 265, 36 Sup. Ct. 58, 60 L. Ed. 266; Myles Salt Co. v. Iberia Drainage District, 239 U. S. 478, 485, 36 Sup. Ct. 204, 60 L. Ed. 392, L. R. A. 1918E, 190; Gast Realty Co. v. Schneider Granite Co., 240 U. S. 55, 59, 36 Sup. Ct. 254, 60 L. Ed.

523.

The chief reliance of plaintiff in error is upon those decisions which have held that where the Legislature, instead of determin

[3, 4] It is suggested further that the statutes and ordinances in question were wanting in due process, in that they afforded the property owner no opportunity to be heard as to the distribution of the cost of the sewer among the different properties in the district or the ascertainment of the amount of the assessment to be imposed upon the lands of plaintiffs in error. Respecting thi- it is sufficient to say that as the Legislature itself has prescribed that the entire cost of a district sewer shall be apportioned against the lots in the district in proportion to area (excluding the highways), there is no occasion for a hearing with respect to the mode in which the assessment shall be apportioned, since this is resolved into a mere mathematical calculation. And it is settled by the cases above cited that whether the entire amount or a part only of the cost of a local improvement shall be imposed as a special tax upon the property benefited, and whether the tax shall be distributed upon a consideration of the particular benefit to particular lots or apportioned according to their frontage upon the streets, their values, or their area, is a matter of legislative discretion, subject, of course, to judicial relief in cases of actual abuse of power or of substantial error in executing it, neither of which is here asserted.

Judgment affirmed.

#370

*369

(250 U. S. 368)

(39 Sup.Ct.)

PENNSYLVANIA R. CO. v. MINDS.

SAME v. MINDS et al.

to October 1, 1904; in No. 294 from October 1, 1904 to June 30, 1907. Verdicts and judgments were recovered in both cases against the company. The judgments were affirmed

(Argued April 23, 1919. Decided June 9, 1919.) in the Circuit Court of Appeals. 244 Fed.

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Allowing in actions, tried together, on reparation awards by the Interstate Commerce Commission, one in favor of a partnership, the other in favor of its successor, but both against the same carrier, an amendment to correct mistake in the declarations, transposing the awards, held in court's discretion. 2. COMMERCE 97 DISCRIMINATION BY CARRIER AWARD BY COMMISSION - INTEREST.

Shippers being, under Act to Regulate Commerce, 8 (Comp. St. § 8572), entitled to full compensation for damages from discrimination by carrier in car distribution, neither allowance of interest as part of award by Interstate Commerce Commission nor instruction, in action on the award, that the jury might do so, is error, though recovery was less than amount of claim before Commission; the carrier never having offered any payment.

3. APPEAL AND ERROR 216(6)-REVIEWFAILURE TO CHARGE-CALLING COURT'S AT

TENTION.

Failure to charge one of numerous requested points was waived, and cannot be reviewed; counsel, on statement of judge that he thought he had covered all the points submitted, and invitation to call attention to any point, not mentioning the point, but making another request, and excepting generally to refusal to charge requested points.

53, 156 C. C. A. 481.

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During the first period James H. Minds and William J. Matz, trading as Bulah Coal Company, operated the mine alleged to have been subjected to unlawful discrimination. During the second period a partnership, composed of Minds and the widow of Matz, trading under the same name, operated the mine. Two proceedings for reparation were brought before the Interstate Commerce Commission. In the first an order of reparation in the sum of $18,591.48 was awarded, with interest thereon at the rate of 6 per cent, per annum from June 28, 1907. For

the second period an award was made in the sum of $31,715.57, with 6 per cent. interest from the same date. The verdicts of the jury were, for the first period, $16,092.92; for the second period $33,618.37.

[1] 1. The plaintiff in error complains of the allowance of an amendment correcting a mistake in the declarations transposing the awards.

The mistake was first noticed by the court near the close of the trial. This amendment was so obviously just and within the court's discretion that we need only say that we think no error was committed in allowing it.

[2] 2. It is insisted that the court erred in allowing the jury to add interest not exceeding 6 per cent. on the damages found; this upon the theory that the recoveries were below the amounts claimed before the Commission which were so large as to be wholly un

In Error to the United States Circuit Court fair. But the defendants in error were enof Appeals for the Third Circuit.

Two actions, one by James H. Minds, viving partner, etc., and the other by James H. Minds and another, partners, both against the Pennsylvania Railroad Company. Judgments for plaintiffs were affirmed by the Circuit Court of Appeals (244 Fed. 53, 156 C. C. A. 481), and defendant brings error. Affirmed.

titled to full compensation for the damages *sustained as the result of the wrongful dissur-crimination against them. Section 8 of the Act to Regulate Commerce (Act Feb. 4, 1887, c. 104, 24 Stat. 382 [Comp. St. § 8572]). The Commission allowed interest as part of its award, and the District Court charged the jury that it might do so in making up its verdicts. We see no error in this. For years these claims have been contested, the company never offered any payment of the awards, and unless interest is to be allowed there seems to be no means of making the Mr. James A. Gleason, of Du Bois, Pa., for claimants whole for the wrongs sustained by defendants in error. violations of the statute.

*Messrs. Francis I. Gowen, of Philadelphia, Pa., and Frederic D. McKenney, of Washington, D. C., for plaintiff in error.

3. It is contended that the court erred in

Mr. Justice DAY delivered the opinion of fixing counsel fees, as only those are allowthe Court.

These cases were tried together in the courts below and may be considered and disposed of in like manner here. They were brought upon reparation orders made by the Interstate Commerce Commission based upon alleged discrimination against the plaintiffs in car distribution. Two periods were in controversy: In No. 293 from July 1, 1902,

able which compensate for court services. Meeker v. Railroad, 236 U. S. 412, 35 Sup. Ct. 328, 59 L. Ed. 644, Ann. Cas. 1916B, 691. But we are not prepared to say that the court abused its discretion in fixing the fees. There is nothing to warrant our interference with the judgments in this respect.

4. Error is alleged in the charge as to the cost of producing the coal which entered into

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

#371

$372

the computation of damages. Upon this any specific point which they would like to have point there was a conflict in the testimony, specifically answered."

and an examination of the charge satisfies us that the question was fully and fairly left to the jury.

[3] 5. We come to the final and most serious complaint of error in the proceedings. As to the first period there was no contest over the amount of tonnage which the plaintiffs could have shipped, had the cars been fairly distributed during that period. As to the second period, the contention is that there was testimony tending to show that the Commission awarded reparation under a rule which violated its own final determination of the correct rule, in the same manner as was shown in Penna. R. R. Co. v. Jacoby, 242 U. S. 89, 37 Sup. Ct. 49, 61 L. Ed. 165, resulting in the reversal of the judgment in that case. There is no showing that the court gave a wrong rule in this respect in its charge to the jury. But here, as in the Jacoby Case, the company called an expert witness who testified that the *tables in a blueprint, put in evidence by the complainants before the Commission, were made upon a basis of car distribution, which, if applied to complainants, would result, as pointed out in the Jacoby Case, in giving to them the wrongful preference which had been awarded to favored

companies. The witness testified that a computation showed that the Commission, in making its award, had followed this erroneous table and had used its percentages as the basis of its award. The record discloses that the company asked 18 special points to be given in charge to the jury, in 2 of which it requested charges which were based on this witness' testimony as to the inaccuracy of the tables, asking the court in substance to say to the jury that, if the Commission used such tables in making its computation, the awards were on a wrong basis and should be disregarded.

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"Now, gentlemen, I want to make that clear. In the first period, there is no question of the The defendant concedes the tonnage raised. amount of the tonnage, and the difference is all selves there with any other question than the over the cost. So you need not trouble yourcost question. In the second period, the claim is questioned in two respects; the cost, just as it is in the first period, and the tonnage is also questioned. So, of course, you cannot determine the amount of damage until you have settled both of those questions.

"I understand that the parties have agreed tions may be sent out in order to save the jury that their respective statements of their posithe labor of making calculations. Is that correct?"

Counsel for the plaintiff and for the company each answered:

"Yes, sir."

"The Court: So, gentlemen, you will have the benefit of the figuring of the parties on each side, which will present their respective views. You will take the case and dispose of it. **

"Counsel for the defendant excepted to the refusal of the trial judge to charge as requested by them in such points as were not affirmed. (Exception noted for defendant by direction of the

court.)"

The Circuit Court of Appeals answered this contention by distinguishing the Jacoby Case -in that the recovery in that case was based We have, then, this situation: After a wholly upon the award of the Commission charge dealing with the general questions in and in precisely the same amount, whereas, the case, with numerous special requests to in this case there was other testimony as charge "points" as they are called, the preto the damages, and the jury awarded a re- siding judge expressed the view that he. covery in a sum much less than the amount thought he had gone over the subjects emfixed by the Commission. If these were all braced in the requests submitted. That he the grounds of distinction between this and had omitted some is not surprising, for the the Jacoby Case we should be constrained court was dealing with an exceedingly diffito hold that the failure to give the company's cult and complicated situation of car disspecial requests, based on the expert's tes-tribution, concerning which the Interstate timony, was substantial error, requiring a Commerce Commission, the body primarily reversal; but at the close of his charge the intrusted with the determination of such judge said: matters, had long deliberated before announcing the rule upon which it finally acted and

"I think I have gone over the subject-matter

So

of all the different points submitted to me.
far as they are affirmed in the general charge
they are affirmed, and so far as not affirmed in
the general charge they are disaffirmed, and
counsel, if they choose, may call my attention to

made its award in the series of cases of which those now before us are a part. Upon the invitation of the trial judge the company's counsel made the request which we have quoted, and the judge at once complied

+373

#375

(39 Sup.Ct.)

Affirmed.

with it, and charged, as counsel desired, up-ferred, and as to them, we are of the opinion on that particular subject, adding that he that such failure was waived by the course understood that the parties had agreed that of proceeding to which attention has been the respective statements of their positions directed. might go to the jury to save it the labor of making calculations. In this way the parties got before the jury the calculations showing their respective claims. This may have been and probably was the reason for

(250 U. S. 483)

SOUTHERN PAC. CO. v. BOGERT et al.

the failure of counsel to call attention to (Argued April 17 and 21, 1919. Decided June

the omission to answer the particular points requested concerning the effect to be given to the testimony of the defendant's witness, if credited by the jury. Apparently counsel were satisfied when the jury had before it the table showing the basis of their claims in the case. But, whatever the reason, the court, after a careful and painstaking charge, thinking he had answered the "points" of both sides, called upon counsel to suggest omissions as to particular points; then followed the proceedings already recited. We think counsel should have directed attention to the omission which it is evident was inadvertent. The case, in this aspect, is entirely unlike the Jacoby Case, where a spe⚫cific request was made and refused, and a recovery had upon an award of the Commission which the testimony tended to show was made upon a wrong basis.

*This court has repeatedly held that objections to the charge of a trial judge must be specifically made in order that he may be given an opportunity to correct errors and omissions himself before the same are made the basis of error proceedings; this is the only course fair to the court and the parties. McDermott v. Severe, 202 U. S. 600, 610, 26 Sup. Ct. 709, 50 L. Ed. 1162; Norfolk & Western Ry. Co. v. Earnest, 229 U. S. 114, 120, 33 Sup. Ct. 654, 57 L. Ed. 1096, Ann. Cas. 1914C, 172; United States v. Fidelity Co., 236 U. S. 512, 529, 35 Sup. Ct. 298, 59 L. Ed. 696; Jacobs v. Southern Ry., 241 U. S. 229, 236, 36 Sup. Ct. 588, 60 L. Ed. 970; Guerini Stone Co. v. Carlin Co., 248 U. S. 334, 338, 39 Sup. Ct. 102, 63 L. Ed. 275. Parties may not rest content with the procedure of a trial, saving general exceptions to be made the basis of error proceedings, when they might have had all they were entitled to by the action of the trial court had its attention been seasonably called to the matter.

The trial court and the Court of Appeals have refused to disturb the amounts awarded by the jury as compensation for the clear violation of the Interstate Commerce Act, which these records disclose, and which was very much less than the sums awarded by the Commission when the allowance of interest is considered which under the court's instructions entered into the verdicts. think the only serious ground upon which reversal may be asked is found in the failure to give the points, to which we have re

We

9, 1919.)

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The right of a complainant to maintain an effective suit is not barred by laches because of lapse of time alone, where there has been no prejudice from delay, and where complainant did not acquiesce in the situation, but maintained other suits, though mistaking his remedy; for the essence of "laches" is not mere lapse of time, but is acquiescence or lack of diligence in seeking a remedy.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Laches.] 4. EQUITY ~82—LACHES-PENDENCY OF LEGAL PROCEEDINGS BY OTHERS - INTERVENTION.

that a suit to enforce it would be brought on behalf, not only of the plaintiff but of all similarly situated, it is not necessary that each of such persons should intervene in order that he may be deemed thereafter free from the laches which bars those who sleep on their rights.

Where a cause of action is of such a nature

5. JUDGMENT 570(9, 14)-CONCLUSIVENESS -PRIOR LITIGATION-DISMISSAL-WANT OF JURISDICTION-FORM OF REMEDY.

Where other suits begun by complainants or persons in like situation were dismissed for want of jurisdiction, or were decided adversely on appeal on the ground that the remedy which complainants finally invoked was widely at variance from the theory on which the cases were commenced and tried, such judgments are not conclusive adjudications barring complainants' right to recover in a suit where the appropriate remedy was seasonably invoked.

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

A fruitless attempt to recover by an unavailing remedy does not constitute an election which will deprive one of his rights properly recoverable by a different and appropriate remedy.

6. ELECTION OF REMEDIES 12-ACTS CON- in carrying out a reorganization scheme, deSTITUTING ELECTION INCONSISTENCY OF prived the minority shareholders of any particREMEDIES. ipation in the shares of the reorganized company, and before they had asserted any claim to the stock in specie deposited such shares as collateral for a bond issue, held that, where financial conditions had greatly changed because of the World War, after entry of decree directing defendant to deliver to the minority shareholders certain shares, defendant should upon remand of the cause on other grounds be given an opportunity to show whether such decree would work an undue hardship.

7. CORPORATIONS

573(3)-REORGANIZATION

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-CONSTRUCTION OF AGREEMENT UNDER-
WRITER OR BANKER.

Defendant, which through a subsidiary corporation controlled a third corporation in which complainants were minority shareholders, held not to have acted as underwriter or banker in reorganization scheme which, as carried out, deprived complainants of any participation in the proceeds of the sale; the entire stock of the reorganized corporation being obtained by

defendant.

13. CORPORATIONS 575-REORGANIZATIONRIGHT TO STOCK-INDEBTEDNESS.

Where in a suit by minority stockholders to compel the delivery in specie of the proportionate number of the shares of a reorganized

corporation which they should have received, had not defendant secured the whole issue by

8. CORPORATIONS 190-LIABILITY FOR ACTS virtue of its control of a majority of the shares OF CONTROLLED CORPORATION.

A corporation which through its control of another which held a majority of the stock of a third corporation caused the third to take action detrimental to the interests of its minority stockholders is liable therefor to the same extent as though it had been itself the holder of the controlling stock.

9. CORPORATIONS 575-REORGANIZATION— MAJORITY SHAREHOLDERS LIABILITY TO MINORITY SHAREHOLDers.

of the original corporation, held, that the contention that the minority stockholders should be compelled to bear their proportionate share of the floating indebtedness which was either paid by defendants, or was due to corporations subsidiary to it, was raised in time, and should be disposed of.

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Where defendant, which controlled a majorWhere defendant, which controlled the ma-ity of the stock of a railroad corporation, acjority of the stock of a corporation, by means quired all of the stock upon reorganization and of a reorganization scheme prevented minority discharged floating indebtedness, some of which shareholders from participating in the distribuwas due its subsidiary, held, that the minority tion of the stock of the reorganized corpora- stockholders, as a condition to compelling detion, and obtained the whole for itself, relief fendant to issue them in specie their proporcannot be denied on the ground that defendant tionate number of shares, should be required was not guilty of fraud or mismanagement; the to bear their proportionate expense of the relief being based on breach of a fiduciary re-floating indebtedness. lation.

10. CORPORATIONS 190 SUITS BETWEEN SHAREHOLDERS-PARTIES.

To a suit by minority stockholders against the majority stockholder, based on the alleged misuse of its power as such, for its own benefit, and to the detriment of the minority stockholders, and in which no corporate right is asserted, the corporation is neither an indispensable nor necessary party.

11. CORPORATIONS 575 - REORGANIZATION RIGHTS OF MINORITY STOCKHOLDERS PROVISION FOR FLOATING INDEBTEDNESS.

Where, pursuant to a reorganization scheme, the holder of the majority of the shares of a railroad corporation obtained all of the stock of the reorganized corporation, depriving the minority shareholders of participation in such stock, the fact that no provision was made for the floating indebtedness of the original corporation held no bar to relief in favor of the minority sought on the ground of breach of a fiduciary relation.

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16. CERTIORARI 37-PARTIES - INTERVENTION.

Where on certiorari to the Supreme Court a decree in favor of minority stockholders against defendant, which, by virtue of its control of the majority of the stock of a corporation, acquired the whole of the stock on reorganization, was modified, and the cause remanded, held, that petitions for leave to intervene and to share in the benefits of the decree, filed in the Supreme Court by other minority stockholders, should be dismissed without prejudice to the right of such petitioners to apply to the lower court for leave to inter

vene.

Mr. Justice McReynolds, dissenting.

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

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