2. By the avulsion which occurred about 1848, and which resulted in the formation of a new main channel of navigation, the boundary line between said States was unaffect ed, and remained in the middle of the former main channel of navigation as above defined.

3. The boundary line between the said States should now be located along that portion of said river, or the bed of said river, which ceased to be the main channel of navigation as the result of said avulsion, according to the middle of the main navigable channel as it existed immediately prior to the time of said avulsion.

4. A commission consisting of Samuel S. Gannett, Washington, D. C., Charles H. Miller, Little Rock, Arkansas, and Stevenson Archer, Jr., Greenville, Mississippi, competent persons, is here and now appointed by the Court, to run, locate and designate the boundary line between said States along that portion of said river which ceased to be a

part of the main navigable channel of said river as the result of said avulsion, in accordance with the above principles: Commencing at a point in said Mississippi River about one mile southwest from Friars Point, Coahoma County, Mississippi, where the main navigable channel of said river, prior to said avulsion, turned and flowed in a southerly direction, and thence following

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along the middle of the former main *channel of navigation by its several courses and windings to the end of said portion of said Mississippi River which ceased to be a part of the main channel of navigation of said river as the result of said avulsion of 1848.

5. In the event the said Commission cannot now locate with reasonable certainty the line of the river as it ran immediately before the avulsion of 1848, it shall report the nature and extent of the erosions, accretions and changes that occurred in the old channel of navigation as the result of said avulsion, and in said report, if necessary to be made in obedience to this paragraph of the decree, said Commission shall give its findings of fact and the evidence on which same are based.

6. Before entering upon the discharge of their duties, each of said Commissioners shall be duly sworn to perform faithfully, impartially and without prejudice or bias the duties hereinafter imposed; said oaths to be taken before the Clerk of this Court, or before the clerk of any District Court of the United States, or before an officer authorized by law to administer an oath in the State of Arkansas or Mississippi, and returned with

and empowered to make examination of the territory in question, and to adopt all ordinary and legitimate methods in the ascertainment of the true location of the said boundary line; to examine and consider care fully the printed record in this cause and the opinion of this Court delivered on May 19, 1919, and to take such additional evidence under oath as may be necessary and authorized to enable said Commission to determine said boundary line, but such evidence shall be taken only upon notice to the parties with permission to attend by counsel and cross-examine the witnesses; to compel the attendance of witnesses and require them to testify; and all evidence taken and all exceptions thereto and rulings thereon shall be preserved, certified and returned with the

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report of said Commissioners; and said

Commission shall do all other matters necessary to enable it to discharge its duties and to obtain the end to be accomplished conformably to this decree.

7. It is further ordered that should any vacancy or vacancies occur in said Board to act, or inability to perform the duties reof Commissioners by reason of death, refusal quired by this decree, the Chief Justice of this Court is hereby authorized and empow missioners to supply such vacancy or vacanered to appoint another commissioner or comformation in the premises as may be satiscies, the Chief Justice acting upon such infactory to him.

8. It is further ordered that said Commissioners do proceed with all convenient dispatch to discharge their duties conformably to this decree, and they are authorized, if they deem it necessary, to request the cooperation and assistance of the State authorities of Arkansas and Mississippi, or either of those States, in the performance of the duties hereby imposed.

9. It is further ordered that the Clerk of this Court shall forward at once to the Governor of each of said States of Arkansas and Mississippi and to each of the Commissioners hereby appointed a copy of this decree and of the opinion of this Court delivered herein May 19, 1919, duly authenticated.

10. Said Commissioners shall make a report of their proceedings under this decree as soon as practicable on or before the first day of October, 1920, and shall return with their report an itemized statement of services performed and expenses incurred by them in the performance of their duties.

11. All other matters are reserved until the coming in of said report, or until such time as matters pertaining to this cause shall be properly presented to this Court for its consideration.

Per Mr. Chief Justice WHITE.

(252 U. S. 317)

MANNERS v. MOROSCO.

Peg O' My Heart to restrain the defendant, Morosco, from representing the play in mo

1920.)

No. 370.

1. COPYRIGHTS 48-LICENSE FOR USE OF COPYRIGHTED PLAY NOT LIMITED TO FIVE

YEARS.

An exclusive license to produce a copyrighted play, requiring the licensee to produce it for at least 75 performances during a given for 5 years, and providing for forfeiture if it was not produced for the specified number of performances, was not limited, as to duration, to 5 years, especially where it provided for the release of the play for stock companies in case it failed in New York and on the road.

season and for each theatrical season thereafter

2. COPYRIGHTS 48-LICENSE FOR USE OF COPYRIGHTED PLAY HELD NOT TO GRANT

MOVING PICTURE RIGHTS.

Where an exclusive license for the production of a copyrighted play required 75 performances each theatrical season, provided for royalties, consisting of specified percentages of the gross weekly receipts, required the play to be presented in first-class theaters with a competent company, and with the author's wife in the title rôle and provided that no alterations, eliminations, or additions should be made without the author's approval, and that rehearsals and the production of the play should be under his direction, it did not grant the right to produce the play in moving pictures. 3. COPYRIGHTS

48-LICENSOR IMPLIEDLY COVENANTS NOT TO PRODUCE PLAY IN MOV

ING PICTURES.

Though an exclusive license to produce a copyrighted play did not grant the licensee the right to produce it in moving pictures, it was an implied covenant that the licensor would not destroy the value of the right granted by so producing it.

copyright; and also, although this is a subsidiary question, from producing the play at all. The defendant justifies under an agreement of January 19, 1912, and a supplemental agreement of July 20, 1914, both set forth in the bill. The ground upon which the right to produce the play in any way was denied was that the agreement gave rights only for five years. This construction was rejected by the District Court and the Circuit Court of Appeals. Both Courts held also that the agreement conveyed the right to represent the play in moving pictures and on that ground dismissed the bill. 254 Fed. 737; 258 Fed. 557.

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By the first agreement the plaintiff, party of the first part "does grant" to Morosco, the party of the second part, "the sole and exclusive license and liberty to produce, perform and represent the said play in the United States of America and the Dominion of Canada," subject to the terms and conditions of the contract. Morosco agrees "to produce the play not later than January first, 1913, and to continue the said play for at least seventy-five performances during the season of 1913-1914 and for each theatrical season thereafter for a period of five years." He agrees further to pay specified percentages on the gross weekly receipts as royalties, and that "if during any one theatrical year • * * said play has not been produced or presented for seventy-five performances, then all rights of the said party of the second part shall cease and determine and shall immediately revert to the said party of the first part." Morosco further agrees to present the play in first-class

Miss Laurette Taylor (the stage name of the author's wife) in the title rôle; the play to have a production in New York and to be continued on the road for at least one season or longer if considered advisable by both parties. No alterations, eliminations or additions are to be made without the

approval of the author and the rehearsals and production of the play are to be under his direction. The author to have the right to print and publish the play but not within six months after the production of the play in New York City without consent. Morosco is not to let or transfer his rights without the author's consent. "Should the play fail in New York City and on the road it shall be released for stock;" i. e., let to stock companies, with an equal division of royalties between plaintiff and defendant. By an addendum, after Miss Tay

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saw fit, *without engaging Laurette Taylor and without consulting the plaintiff as to the cast, rehearsals or production of the play. Morosco also was authorized to let or sell any of his rights under the contracts, but he was not to be released from his personal liability to pay the royalties as specified in the contracts. The play might be released for stock whenever the net profits realized from all the companies producing the play should be less than $2,000, and then the royalties received from the stock theatres were to be divided equally. For four years from date neither party without consent of the other was to produce or give leave to produce the play by moving pictures and after that the rights of the parties were to be determined by and under the original agreement as if the supplemental agreement

had not been made.

[1] As to the duration of the defendant's rights we agree with the Courts below. We perceive no ground for converting the defendant's undertaking to continue the play for seventy-five performances during the season of 1913-1914, and for each season thereafter for five years, into a limit of the plaintiff's grant of rights. As was said in the District Court, it is a statement of the least the defendant was to do, not of the most that he was to have. The plaintiff was secured sufficiently by the forfeiture in case the play should not have been produced for seventy-five performances. The provisions in both contracts as to the release for stock are somewhat of an additional indication that it was expected that the arrangement was to last as long as the public liked the play well enough to make it pay, provided the defendant kept his half of the bargain performed.

[2] On the question principally argued we are of opinion that the majority below was wrong. The thing granted was "the sole and exclusive license and liberty to produce, perform and represent" the play within the territorial limits stated, subject to the other

*326

terms of the contract. *It may be assumed that those words might carry the right to represent the play in moving pictures if the other terms pointed that way, but to our mind they are inconsistent with any such intent. We need not discuss the abstract question whether, in view of the fact that such a mode of representation was familiar, it was to be expected that it should be mentioned if it was to be granted or should be excluded if it was to be denied. Every detail

alone is provided for. The play is to be continued for seventy-five performances for the theatrical seasons named. This applies only to the regular stage. The royalties are adapted only to that mode of presentation. Harper Bros. v. Klaw (D. C.) 232 Fed. 609, 612. The play is to be presented in firstclass theatres with a competent company and with Miss Laurette Taylor in the title rôle, which, of course, does not mean in moving pictures. The stipulations against alterations, eliminations or additions, and that the rehearsals and production of the play shall be under the direction of the author, denote the same thing, and clearly indicate that no other form of production is contemplated. The residuary clause, so to speak, by which the play is to drop to stock companies shows the lowest point to which the author was willing to let it go.

[3] The Courts below based their reasoning upon the impossibility of supposing that the author reserved the right to destroy the value of the right granted, however that right may be characterized, by retaining power to set up the same play in motion pictures a few doors off with a much smaller admission fee. We agree with the premise but not with the conclusion. The implied assumption of the contract seems to us to be that the play was to be produced only as a spoken drama, with respect for the author's natural susceptibility concerning a strict adhesion to the text. We need not amplify the argument presented below against the reser

*327

vation of the right in *question. As was said by Judge Hough in a similar case:

censees' estate.

"There is implied a negative covenant on the part of the [grantor] not to use the ungranted portion of the copyright estate to the detriment, if not the destruction, of the li(or Klaw and Erlanger, for the matter of that) Admittedly, if Harper Bros. permitted photo-plays of Ben Hur to infest the country, the market for the spoken play would be greatly impaired, if not destroyed." Harper Bros. v. Klaw (D. C.) 232 Fed. 609, 613.

The result is that the plaintiff is entitled to an injunction against the representation of the play in moving pictures, but upon the terms that the plaintiff also shall abstain from presenting or authorizing the presentation of the play in that form in Canada or the United States.

Decree reversed. Injunction to issue upon

the condition that the plaintiff shall neither

the play Peg O' My Heart in moving pictures while the contract with the defendant re

represent nor authorize the representation of

mains in force.

Mr. Justice CLARKE dissenting.

The decision of this case involves the construction of the written contract of January 19, 1912, as modified by that of July 20, 1914, and, centering its attention upon the claim of the defendant to moving picture rights

the court dismisses in a single paragraph provisions in these contracts which seem to me to so clearly limit the rights of the defendant to a term expiring possibly in May, 1918, but certainly not later than May, 1919, that I cannot concur in the conclusion arrived at by my Associates.

The court says:

"As to the duration of the defendant's rights we agree with the Courts below. We see no ground for converting the defendant's undertaking to continue the play for seventy-five per

#328 formances during the season of 1913-1914, *and for each season thereafter for five years, into a limit of the plaintiff's grant of rights. As was said in the District Court, it is a statement of the least that defendant was to do, not of the most that he was to have."

This expression, that the third paragraph of the contract of January 19, 1912, "is a statement of the least that defendant was to do, not of the most that he was to have," is repeated in the opinion of each of the three courts as the sufficient reason for con

cluding, as the District Court said, that the contract gave to the defendant "all the rights mentioned for all time." It is not the first time that a catchy phrase has diverted attention from less picturesque realities.

My reasons for concluding that the rights of the defendant were limited, as the court says his obligations were limited, to a term expiring not later than the close of the theatrical season of 1918-1919, may be briefly stated.

The grant which it is concluded gave the defendant the exclusive license and liberty to "produce, perform and represent" the play involved "for all time" is in these

words:

This third paragraph expresses the agreement of the parties as to what the defendant was to do in consideration of the grant by the plaintiff in the first paragraph, and reading it and the fifth paragraph together, as one, we have the extreme extent and time limit of the defendant's obligation and the penalty forfeiture, is provided for the failure to perform at any time within that limit. The court says that the third paragraph expresses "the least (all) that the defendant was to do," so that his obligation under the contract ended with the five-year period, which obviously would be not later than the close of the theatrical season of 1918-1919. This being true, when did the reciprocal obligation of the plaintiff expire?

That the obligation of the plaintiff continued "for all time" is apparently derived wholly from the inference, as stated by the District Court, that the parties, if they had intended otherwise, "could readily have fixed a time limit in the first paragraph by the addition of words such as 'for years from' or 'until' a stated date."

It is very true that the parties could have written their contract in a different form, and certainly with much more precision of statement, than that in which they did write it, but it is also true that in making it in their own way and terms they granted a general license in the first paragraph, but made it subject to the "terms, conditions and limitations" thereinafter to be expressed, and that they then went forward and expressed in the third paragraph the five-year limitation as we have seen it. The court holds that this five-year limitation applies to the defendant's obligation to perform but that it does not apply to the plaintiff's license to produce. I think it applies to both. Plainly the parties were undertaking to set down in their contract the mutual obligations which each intended to assume those of the one in consideration

*330

of those of the other. The author granted the privilege of producing the play and the defendant agreed to produce it for at least 75 performances during each of five years. After that, the court concludes, the defendant was no longer bound by the contract to

#329

The fifth paragraph provides that if the defendant shall fail to produce the play seventy-five times in any one theatrical

year

"then all rights of the said party of the second part [the defendant] shall cease and determine and shall immediately revert to the said party of the first part."

40 SUP.CT.-22

plaintiff and therefore, clearly, the plaintiff should not continue thereafter under obligation to the defendant, unless the intention to be so bound is unmistakably expressed in his contract. The "natural and normal" inference is that when the obligation of one party to such a contract as we have here is ended it was the intention that the obligation of the other party should end also.

The inference that the license to produce continued after the obligation to produce expired, in my judginent, can be sustained only by neglecting the specific provision of the

A penalty of forfeiture being provided for failure of the defendant to perform at any time, I cannot see any substantial reason for inserting the five-year limitation except to fix a limit for the expiration of all rights of both parties and this, it seems to me, was its only function.

The provision in the first contract that if the play should fail "in New York and on

*331

the road," and in the second that if the net profits for "one theatrical season" should be less than $2,000, the play should be "released for stock" and the royalties divided equally between the parties, would have ample scope for the application within the five-year period and therefore cannot properly be made the basis for the implied continuance of the license beyond that term.

For the reasons thus briefly stated, I think that the parties expressed with sufficient clearness their intention that their mutual relations should all terminate with the ex

piration of the five-year period, and therefore I dissent from the opinion of the court.

Mr. Justice PITNEY concurs in this opinion.

(252 U. S. 331)

3. CONSTITUTIONAL

LAW

303-ENFORCE

MENT OF ORDERS OF CORPORATION COMMISSION BY PENALTIES WITHOUT OPPORTUNITY FOR REVIEW IS UNCONSTITUTIONAL.

the state court as authorizing no review of the Rev. Laws Okl. 1910, § 8235, construed by orders of the commission fixing rates, except by an appeal in contempt proceedings for violation of the order, which violation may be punished by a penalty of $500 per day, is unconstitutional, so far as it provides for the enforcement of the prescribed rates by penalties, because of the absence of an opportunity for a judicial review satisfying the constitutional requirements.

4. PUBLIC SERVICE COMMISSIONS 24-Ju

RISDICTION WILL BE RETAINED TO GIVE COMPLETE RELIEF IN SUIT TO ENJOIN ENFORCEMENT OF ORDER FIXING RATES.

Where it was necessary to resort to a federal court of equity to restrain a Corporation Commission from enforcing an order fixing rates, because of the absence of any provision for a judicial review, the court will retain jurisdiction to determine whether the rates fixed are confiscatory, though pending the suit the Legislature has provided for a judicial review of such

orders.

21-COM

5. PUBLIC SERVICE COMMISSIONS MISSION WILL NOT BE RESTRAINED FROM INVESTIGATING RATES AND PRACTICES.

In a suit in a federal court to restrain a state Corporation Commission from enforcing an

et al.

1920.) No. 129.

1. CONSTITUTIONAL LAW 298 (1)-LAUNDRY COMPANY ENTITLED TO REVIEW IN COURTS OF

RATES PRESCRIBED BY CORPORATION COMMISSION.

An order of a state Corporation Commission prohibiting a laundry company from charging, without its permission, rates higher than those prevailing in 1913, in effect prescribed maximum rates and was a legislative order, and under the Fourteenth Amendment plaintiff was entitled to an opportunity for a review in the courts of its contention that the rates were not compensatory.

2. MANDAMUS 73(1)-PROHIBITION ~6(2) -IT MUST BE ASSUMED THAT NEITHER REMEDY WILL LIE TO REVIEW ORDERS OF CORPORATION COMMISSION FIXING RATES.

As Const. Okl. art. 9, § 20, has been construed by the state Supreme Court as not permitting a direct appeal from orders of the Corporation Commission fixing rates, it must be assumed, in the absence of a decision of the

claimed to be confiscatory, the commission will not be restrained from proceeding with an inlong as its findings and conclusions are subjected to the review of the federal District Court.

Appeal from the District Court of the United States for the Western District of Oklahoma.

Suit by the Oklahoma Operating Company against J. E. Love and others, composing the Corporation Commission of the State of Oklahoma. From an order denying a motion for a preliminary injunction, plaintiff appeals. Reversed and remanded. See, also, 39 Sup. Ct. 387.

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*Mr. C. B. Ames, of Oklahoma City, Okl., for appellant.

Mr. S. P, Freeling, of Oklahoma City, Okl for appellees.

Mr. Justice BRANDEIS delivered the opinion of the Court.

This suit was brought in the District Court of the United States for the Western Dis