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pay the last mentioned obligations and they Ct. 263, 63 L. Ed. 587; Manson v. Williams, receiver agreed to turn over the pledged se 213 U. S. 453, 29 Sup. Ct. 519, 53 L Ed. S03. curities to him, he undertaking in case it The claim of the present defendants in should be adjudged that he was a general their action in South Carolina is based as we partner to hold the equities in the same as have said upon allegations of fraud, and it trustee for the estate-all conditioned upon is further alleged in their complaint that the Court making an order approving the con- they believed the representations said to be tract. The order was made on January 6,

•577 1915. On January 25, 1915, the composition fraudulent *until long after the decree set was declared to be for the best interests of up here as a bar. If those allegations are his estate and the creditors thereof, it and proved the composition would not discharge the arrangement with Thompson were con- the claim, and of course they were not passed firmed, and it was decreed that on his complying with its terms he should be "relieved upon in the bankruptcy court. A decree that, of any further liability to the said receiver as we have tried to show, cannot be taken or the estate by reason of the order hereto- to deal with the defendants' rights does not fore' entered by this Court dated January 6, give ancillary jurisdiction to the District 1915 or otherwise.” It was further decreed Court to enforce it against them. The conthat the petitions to have Thompson de cession by the demurrer that Thompson was clared liable as a general partner be dismiss- a special partner does not affect the scope of ed. The defendants had been notified of the the decree, and the jurisdiction depends upon bankruptcy and the appointment of receivers, that alone. It is true that if he was only liahad paid one claim made against them for ble as a special partner the South Carolina the estate and had disputed another which suit cannot be maintained, but the allegations

*576 is now the subject *of a suit in New York, but of fraud open the whole matter and moreover they did not appear in the bankruptcy pro- the question here is not whether that suit ceedings, assent to the composition, or at can be maintained but whether an injunction tempt to prove á claim.

against it should be issued by the District We believe that we have stated the essen- Court, tial facts relied upon to support the bill. The appeal is dismissed and upon the writ They seem to us not sufficient for that pur- of certiorari the decree dismissing the bill is pose. It is said that in pursuance of con- , affirmed. tract sanctioned by the Court there was a Appeal dismissed. settlement with Thompson discharging him Decree affirmed. from all liability to the firm and anyone claiming under it. We do not perceive that the decree just recited even purports to deal

(250 U. S. 596) with the defendants' claim, and reading it in NEW YORK CENT. R. CO. V. BIANC. connection with the proposal as to Thompson AMERICAN KNIFE CO. et al. v. SWEETin the offer of composition we find it at least ING. CLARK KNITTING CO., Inc., et al. difficult to understand it to have been direct

V. VAUGHN. ed against other creditors than those who as

Decided Nov. sented to the latter. It is argued, to be sure, (Argued Oct. 22 and 23, 1919.

10, 1919.) that the petitioners seeking to charge Thompson as a general partner were dismissed out Nos. 374, 375 and 376.–October Term, 1919. and out and that that portion of the decree at least must be taken to operate in rem and 1. CONSTITUTIONAL LAW O 301 MASTER decide against all the world that he was not

AND SERVANT 347-PERMITTING AWARD But it would be going far to say that FOR FACIAL DISFIGUREMENT NOT A TAKING the dismissal was not to be read with the rest of the decree in determining its scope, Workmen's Compensation Law of the State especially when it is remembered that the of New York, amended and re-enacted by Laws composition bound the parties who brought 1914, c. 41 (Consol. Laws, c. 67), and section the petitions thus dismissed. It is altogether | 15, amended by Laws 1916, c. 622, § 3, to auprobable that the dismissal was by consent.

thorize the Industrial Commission in its disHowever this may be, the decree only deter- cretion, in case of an injury resulting in semined as against everybody that Thompson's rious facial or head disfigurement, to make property should not be administered in the such award as it may deem proper and equibankruptcy proceedings; it did not conclu- table, not to exceed $3,500, held not to deprive

employers ordered to pay such an award of sively establish as against the present de- their property without due process of law, in fendants the finding of facts upon which contravention of Const. U. S. Amend. 14; the it is supposed to have been based, if there is provision not being unreasonable, arbitrary, or any reason to suppose that the facts as to his contrary to fundamental right, while the al relation to the firm were found. Gratiot lowance prescribed does not exceed the con. State Bank v. Johnson, 219 U. S. 246, 39 Sup. I stitutional limitations on state power.

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one.

WITHOUT DUE PROCESS.

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

+601

(40 Sup.Ct.) 2. CONSTITUTIONAL LAW E301 MASTER, not to exceed three thousand five hundred dol.

AND SERVANT 347-DETERMINATION BY | lars."
STATE OF DETAILS AS TO COMPENSATION FOR
FACIAL OR HEAD DISFIGUREMENT.

The present writs of error bring up for Whether an award to an injured employé review three judgments of the Court of Apfor permanent facial or head disfigurement peals of that state, affirming orders of the should be made in combination with, or inde Supreme Court, Appellate Division, Third pendent of, the compensation allowed for mere Judicial Department, in which awards based inability to work, is a matter of detail for determination by the state, as is also the ques- upon this amendment were sustained. The tion whether the compensation should be paid opinion of the Court of Appeals, applicable in a single sum or in installments; decision to all of the cases, is reported under the title one way or the other not rendering the portion of Matter of Sweeting v. American Knife of a state Workmen's Compensation Act un- Co., 226 N. Y. 199, 123 N. E. 82. constitutional as a taking without due process In each case the commission found acciin violation of the Fourteenth Amendment. dental injuries sustained by an employé in a Mr. Justice McReynolds dissenting.

hazardous occupation, arising out of and in

the course of the employment, and, as a rë In Error to the Supreme Court, Appellate sult of the injury, some serious facial or head Division, Third Judicial Department, of the disfigurement, or both. In each case an State of New York,

award was made on account of such disfig

urement irrespective of the allowance of comIn the matter of the claims of George pensation according to the schedule based Sweeting and others, employés, for compen- upon the average wage of the injured emsation under the Workmen's Compensation ployé and the character and duration of the Law, against the American Knife Company

disability. and others, the employers, and the Ætna

[1] The sole contention here is that the Life Insurance Company the insurance car- amendment of 1916, as thus carried into efrier. From orders of the Appellate Division of the Supreme Court (186 App. Div. 925, 172 fect, deprives the respective plaintiffs *in erN. Y. Supp. 880; 186 App. Div. 926, 172 N. ror of property without due process of law, Y. Supp. 921; 186 App. Div. 925, 172 N. Y. in contravention of the Fourteenth AmendSupp. 924), affirming awards of the State ment. Industrial Commission, the employers and The argument is that an award for disinsurance carrier appealed to the Court of figurement, made wholly independent of Appeals of New York, which affirmed (226 N. claimant's inability to work, is not based upY. 199, 123 N. E. 82; 123 N. E. 856, 893), and on impairment of earning power; that only the employers and insurance carrier bring such impairment can justify imposing upon error. Judgments affirmed.

an employer without fault compulsory payIn No. 374: Mr. Robert E. Whalen, of Al ment by way of compensation to an injured bany, N. Y., for plaintiff in error.

workman; and hence that the “disfigureIn Nos. 375, 376: Mr. William H. Foster, ment clause" is not a reasonable exercise of Syracuse, N. Y., for plaintiffs in error. of the police power, but is arbitrary and op

Mr. E. C. Aiken, of Albany, N. Y., for In- pressive. dustrial Commission of New York,

In view of our recent decisions sustaining

state laws imposing upon employers in the •600

hazardous industries responsibility in one *Mr. Justice PITNEY delivered the opinion form or another for the consequences of inof the Court.

juries received by employés in the course of The Workmen's Compensation Law of the the employment in the absence of fault on state of New York (chapter 816, Laws 1913, the employer's part (New York Central R. R. as amended and re-enacted by chapter 41, Co. v. White, 243 U. S. 188, 37 Sup. Ct. 247, Laws 1914 (Consol. Laws, C. 67]), which was 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. sustained by this court against attacks bas- 1917D, 629; Mountain Timber Co. v. Washed upon the Fourteenth Amendment in New ington, 243 U. S. 219, 37 Sup. Ct. 260, 61 L. York Central R. R. Co. v. White, 243 U. S. Ed. 685, Ann. Cas. 1917D, 642; Arizona Em188, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. ployers' Liability Cases, 250 U. S. 400, 39 1917D, 1, Ann. Cas. 1917D, 629, was amended Sup. Ct. 553, 63 L. Ed. 1058), little need now by Laws 1916, c. 622, among other things by be said. inserting in the fifteenth section, which con- Even were impairment of earning power tains the schedule of compensation for cases the sole justification for imposing compulof disability, a clause reading as follows: sory payment of workmen's compensation

“In case of an injury resulting in serious fa- upon the employer in such cases, it would cial or head disfigurement the commission may

be sufficient answer to the present contenin its discretion, make such award or compen- tion to say that a serious disfigurement of sation as it may deem proper and equitable, in the face or head reasonably may be regarded view of the nature of the disfigurement, but, as having a direct relation to the injured

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

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person's earning power, irrespective of its | provision debar a state from adopting other effect upon his mere capacity for work.

Under ordinary conditions of life, a serious and unnatural disfigurement of the face or head very probably may have a harmful effect upon the ability of the injured person to obtain or retain employment. Laying aside exceptional cases, which we must as sume will be fairly dealt with in the proper and equitable administration of the act, such a disfigurement may render one repulsive or offensive to the sight, displeasing, or at least less pleasing, to employer, to fellow em*602 ployés, and to patrons or customers. See Ball v. Wm. Hunt & Sons, Ltd., [1912] App. Cas. 496.

methods, or a composite of different methods,
provided the result be not inconsistent with
fundamental rights. As was stated in the
Arizona case, 250 U. S. 429, 39 Sup. Ct. 559,
63 L. Ed. 1058:

"If a state recognizes or establishes a right of action for compensation to injured workmen upon grounds not arbitrary or fundamentally unjust, the question whether the award shall be measured as compensatory damages are measured at common law, or according to some prescribed scale reasonably adapted to produce a fair result, is for the state itself to determine."

And we see no constitutional reason why
603

But we cannot concede that impairment of earning power is the sole ground upon which a state may not, *in ascertaining the amount compulsory compensation to injured work- of such compensation in particular cases, men legitimately may be based. Unques- take into consideration any substantial phystionably it is a rational basis, and it is adopt-ical impairment attributable to the injury, ed for the generality of cases by the New whether it immediately affects earning caYork law. But the Court of Appeals has pacity or not. construed the 1916 amendment as permitting For the reasons thus outlined, it was not an allowance for facial or head disfigure- unreasonable, arbitrary, or contrary to funment although it does not impair the claim-damental right to embody in the New York ant's earning capacity. Matter. of Erickson Workmen's Compensation Law a provision v. Preuss, 223 N. Y. 365, 368, 119 N. E. 555; for a special allowance of compensation for and see opinion of Judge Cardozo in the pres- a serious disfigurement of the face or head. ent case, 226 N. Y. 199, 200, 123 N. E. 82. Nor is there any ground for declaring that In view of this, and there being no specific the allowance prescribed by the 1916 amendfinding of such impairment in these cases, ment exceeds the constitutional limitations it is proper to say that in our opinion the upon state power. "due process of law" clause of the Fourteenth Amendment does not require the states to base compulsory compensation solely upon loss of earning power.

The New York law as at first enacted, the Washington, and the Arizona laws presented for our consideration three different methods adopted for the purpose of imposing upon the industry the burden of making some compensation for the human wastage attributable to the hazards of the work. We were unable to find that any of these ran counter to the "due process" clause. Nor does that!

[2] Whether an award for such disfigurement should be made in combination with or independent of the compensation allowed for the mere inability to work is a matter of detail for the state to determine. The same is true of the question whether the compensation should be paid in a single sum, or in installments. Arizona Employers' Liability Cases, 250 U. S. 400, 429, 39 Sup. Ct. 553, 63 L. Ed. 1058.

Judgments affirmed.

Mr. Justice McREYNOLDS dissents.

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(40 Sup.Ct.)

(251 U. S. 1)

District Court found that the charge was UNITED STATES v. SOUTHERN PAC. CO. true and entered a decree of cancellation, et al.

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Evidence in suit by the government to cancel for fraud a patent to a railroad company for indemnity lands held to entitle it to the relief, as showing that, when the patent was sought and obtained on affidavit that the lands were nonmineral, they were known by the company's officers to be valuable for oil; that is, that the then known conditions were such as to reasonably engender the belief that the lands contained oil of such quality and in such quantity as would render its extraction profitable and justify expenditures to that end.

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and this was reversed by the Circuit Court of Appeals, one judge dissenting. Southern Pac. Co. v. United States, 249 Fed. 785, 162 C. C. A. 19.

*8

covering the same lands on Septem*ber 6, 1904. Both lists were presented by the company's land agent, Mr. Eberlein, and were accompanied by affidavits made by him stating that the lands selected "are not interdicted mineral," but "are of the character contemplated by the grant," and that "he has caused" them "to be carefully examined by the agents and employés of said company as to their mineral or agricultural character, and that to the best of his knowledge and belief none of the lands returned in said list are mineral lands."

In acting on the substituted list the officers of the

Land Department relied upon and gave effect to the statements in the supporting affidavits, and the selections were accordingly approved and passed to patent.

In truth Mr. Eberlein had not examined the lands or caused them to be examined by others. Nor had any examination of them

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

company *fraudulently obtained the patent by falsely representing to the land department that the lands were not mineral but agricultural, when it was known that they were mineral. From the evidence presented the

[1] "All mineral lands" other than those containing coal or iron were excluded from the grant, and this exclusion embraced oil lands. Burke v. Southern Pacific R. R. Co., 234 U. S. 669, 676-679, 34 Sup. Ct. 907, 58 L. Ed. 1527. As will be seen presently, there can be no doubt that the patent was procured by representing that the lands were not mineral. Whether this representation was false turns upon the character of the lands as known when the patent was sought and obtained. If they then were known to be valuable for oil, as the government asserts they were, they were mineral in the sense of the granting act.

To compensate for losses to the grant within its primary limits the railroad company was entitled to select other lands of like area within the indemnity limits, approval by the Secretary of the Interior being essential to passing the selections to patent. The established mode of making the selections was by presenting at the local land office selection lists designating the lands lost and those selected, with supporting affidavits showing, among other things, that the lands selected were of the character

contemplated, that is to say, were not mineral but agricultural. These lists and affida

vits would then be examined in that office

and in the General Land Office, and ultimately the selections would be passed to the Secretary of the Interior for his action. That course was followed here.

The original list was presented November 14, 1903, but it encountered obstacles which

led to the presentation of a substituted list

person's earning power, irrespective of its provision debar a state from adopting other effect upon his mere capacity for work.

methods, or a composite of different methods, provided the result be not inconsistent with fundamental rights. As was stated in the Arizona case, 250 U. S. 429, 39 Sup. Ct. 559, 63 L. Ed. 1058:

Under ordinary conditions of life, a serious and unnatural disfigurement of the face or head very probably may have a harmful effect upon the ability of the injured person to obtain or retain employment. Laying aside exceptional cases, which we must assume will be fairly dealt with in the proper and equitable administration of the act, such a disfigurement may render one repulsive or offensive to the sight, displeasing, or at least less pleasing, to employer, to fellow em*602 ployés, and to patrons or custom*ers. See Ball v. Wm. Hunt & Sons, Ltd., [1912] App. Cas. 496.

"If a state recognizes or establishes a right of action for compensation to injured workmen upon grounds not arbitrary or fundamentally unjust, the question whether the award shall be measured as compensatory damages are measured at common law, or according to some prescribed scale reasonably adapted to produce a fair result, is for the state itself to determine."

And we see no constitutional reason why *603

But we cannot concede that impairment of earning power is the sole ground upon which a state may not, *in ascertaining the amount compulsory compensation to injured work- of such compensation in particular cases, men legitimately may be based. Unques- take into consideration any substantial phystionably it is a rational basis, and it is adopt-ical impairment attributable to the injury, ed for the generality of cases by the New whether it immediately affects earning caYork law. But the Court of Appeals has pacity or not. construed the 1916 amendment as permitting For the reasons thus outlined, it was not an allowance for facial or head disfigure- unreasonable, arbitrary, or contrary to funment although it does not impair the claim-damental right to embody in the New York ant's earning capacity. Matter. of Erickson Workmen's Compensation Law a provision v. Preuss, 223 N. Y. 365, 368, 119 N. E. 555; for a special allowance of compensation for and see opinion of Judge Cardozo in the pres- a serious disfigurement of the face or head. ent case, 226 N. Y. 199, 200, 123 N. E. 82. Nor is there any ground for declaring that In view of this, and there being no specific the allowance prescribed by the 1916 amendfinding of such impairment in these cases, ment exceeds the constitutional limitations it is proper to say that in our opinion the upon state power. "due process of law" clause of the Fourteenth Amendment does not require the states to base compulsory compensation solely upon loss of earning power.

The New York law as at first enacted, the Washington, and the Arizona laws presented for our consideration three different methods adopted for the purpose of imposing upon the industry the burden of making some compensation for the human wastage attributa-553, 63 L. Ed. 1058. ble to the hazards of the work. We were unable to find that any of these ran counter to the "due process" clause. Nor does that

Judgments affirmed.

[2] Whether an award for such disfigurement should be made in combination with or independent of the compensation allowed for the mere inability to work is a matter of detail for the state to determine. The same is true of the question whether the compensation should be paid in a single sum, or in installments. Arizona Employers' Liability Cases, 250 U. S. 400, 429, 39 Sup. Ct.

Mr. Justice MCREYNOLDS dissents.

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