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made in their classifications and other tariff publications the lower rates, which are conditioned upon the use of the bills of lading now in use, will be automatically canceled and the higher rates, based upon the carrier's liability, will be the only lawful rates from and after the date upon which the law in question becomes effective. Some of the shippers insist that if no changes are made in the classifications or tariff publications, the provisions for limitation of carrier's liability will, when the new law becomes effective, be unlawful and void, and the carriers will thereupon have two sets of rates, both applicable under like conditions, and that of the two shippers will be entitled to the lower.
The official classification roads have announced the purpose of making certain changes in the terms of their bill of lading, other contracts of carriage, and classification and rate schedules, in the light of the provisions of the new law. They say that whether or not they will continue to maintain rates based upon the value of the property is a matter for further consideration by their traffic officers. They express the opinion that certain of these changes will impose upon them liabilities not heretofore borne and consequent loss of revenue, and reserve the right to assert at the proper time a claim for some increase in rates on account thereof.
of 100 per cent., or fraction thereof, in the declared value.
By a still later letter the Southern classification roads advise that, in view of the numerous and irreconcilable complications which have developed, and in order to remove all doubt as to the continuance of existing rates after the amendment to the law becomes effective, they have decided to supersede their present classification rule by one which will recite that the rates governed by the classification will apply only on property shipped subject to the conditions of the carrier's bill of lading in use on and after the effective date of the amended law, and, except as otherwise provided in the classification, all interstate rates in effect on June 2, 1915, will continue in force, disregarding provisions in tariffs, classifications, and exception sheets which limit the liability of carriers, and to continue a provision that property carried not subject to the terms and conditions of the carriers' bill of lading will be at carriers' liability, limited only by the common law and the laws of the United States and of the several states, in so far as they may apply, and property so carried will be subject to rates 10 per cent. higher than those shown in the tariffs.
With regard to rates on shipments of live stock, the Southern carriers announced at the hearing their purpose to provide that the present rates would apply on shipments declared to be of value not exceeding that now stated as limitation of the carrier's liability, and to increase the rates 20 per cent. for each 100 per cent. increase in the declared value of the live stock, By letter submitted since the hearing they announce the purpose to provide for an increase of 5 per cent. in the rate for each increase
The Western classification roads, in the main, take a position substantially like that taken by the official classification roads. Their representatives expressed to the committees of Congress the view that the enactment of the amendment in question would, by striking from the uniform bill of lading vital provisions, automatically throw the roads back upon their common-law liability and the increased rates. They admit that a 10 per cent. increase in rates cannot be justified. They think that the increased liability will justify some increase in rates, but emphatically disclaim any disposition to take advantage of a technical opportunity to mulct the shipping public. They are of opinion that they still have the right to provide rates upon live stock dependent upon the declared value of the stock, and that a shipper who misstates the true value of his shipment is guilty of violation of section 10 of the act, just as he would be if he misstated the commodity shipped. They suggest that their present rule, which provides in general for an increase of 10 per cent. in the rate for each 100 per cent. of increase in the declared valuation, is probably too high; that an increase of 5 per cent. in the rate for each 100 per cent. increase in the value, or of 3 per cent. in the rate for each increase of 50 per cent. in the value, would be a more equitable rule, and that this question is involved in a case soon to be submitted to the commission. They, like the Eastern roads, have numerous commodity rates based upon valuation, and they think they may lawfully continue that practice. They have, however, not had
The Southern lines announced their purpose of making certain changes in their contracts, classification, and rate schedules which would exempt certain heavy commodities moving in large quantities and said to constitute about 70 per cent. of their traffic from any immediate increases in rates on account of the amended law, and to incorporate in the classification a provision that as to the remainder of the traffic the rates contained in schedules governed by the classification would be increased 5 per cent, upon the date when the new law becomes effective. That method of changing rates would be in direct opposition to the commission's regulations governing the construction of tariffs, which are by the act given full force of law. The Southern lines urge that the new law will produce conditions which furnish substantial reasons for allowing them additional revenue, and that it is physically impossible, except by the method which they propose, to issue any tariff publications prior to June 2 which will secure that additional revenue. They say that the tariff regulations are prescribed by the commission, and that it is within its power to modify them at any time, and therefore the question of whether or not the carriers should be permitted to make effective the proposed plan is wholly within the commission's discretion to determine. They argue that if nothing is done the 10 per cent. higher rates will automatically become effective, which they do not desire, and that the course proposed by them is the only alternative to the injus-opportunity since this bill was enacted to formulate tice of their being compelled to sustain the burdens in detail the changes which they think necessary imposed by the new legislation without means for and proper. recouping the losses which they will suffer.
The commission has made no investigation upon which a judgment as to the cost of and proper compensation for additional risk could be based. The commission has no right to assume that it would be 5 per cent. of the rates upon 30 per cent. of the carriers' traffic, or that it would be any given per cent. upon all of the traffic. Obviously there can be no propriety in attaching to one commodity unreasonable rates for the purpose of compensating a carrier for a risk attaching to it in the transportation of another commodity, and it is admitted that the carriers cannot make any accurate statement in advance as to the added cost, if any, of the increased liability.
From the best information that can be gathered from testimony that has been submitted in various cases, it appears that prior to 1913 the limited liability provisions contained in the shipping contracts, classifications, and rate schedules were very generally disregarded in the settlement of loss and damage claims, especially in the Western classification territory. It seems, therefore, that to a very large extent at least, despite the limitations of liability stated in the contracts and schedules, full value was quite generally recognized in the settlement of claims. After the Supreme Court decided the Croninger Case, supra, in 1913, the provisions of the contracts and rate schedules in this and other particulars were recognized as lawfully binding upon carriers and shippers alike, and the policy followed was correspondingly changed. It is pointed out that prior to 1906 many of these limitations of liability were not contained in the shipping contracts and rate schedules; that in 1906 they were incorporated therein, but were largely ignored until 1913; that in 1913 the policy was generally adopted of endeavoring to enforce the limited liability provisions; and that neither in 1906 nor in 1913 was any change in the rates undertaken because of the limited lia
bility. It is argued that, inasmuch as no reduction [ certain bills of lading are accepted higher rates in rates was made when the limited liability pro- will apply. The terms of the bill of lading could visions were established, or when they were sus- be modified or changed to any extent without autotained as lawful by the Supreme Court of the Unit-matically changing any rate. Prior to 1913 many ed States, there is no justification for an increase of the limitations contained in bills of lading or in rates now that the liability conditions are re- other shipping contracts were treated as if they stored to substantially what they were prior to did not exist, and it was never suggested that the 1906. Limitations of liability have been incorporated validity or invalidity of any such provision affectin live stock shipment contracts for many years, ed the rate. but, as has been said, it appears that at least in the territory where there is the greatest movement of live stock those limitations were generally disregarded in settlement of claims.
The so-called uniform bill of lading, which has been in use in official and Western classification territories, contains, and has contained, a provision that claims for loss or damage must be presented to the carrier within four months, but until the Croninger Case, supra, was decided by the Supreme Court, no effort was made by the carriers generally to enforce or to observe that provision. After the Croninger Case was decided the carriers adopted an entirely different course, and took the position that this provision was in the bill of lading, the terms of the bill of lading were in the rate schedules, and therefore it was unlawful to depart from that requirement. This created a general controversy, and the sudden change from ignoring a rule to literally enforcing it necessarily created multitudes of unjust discriminations. The question was presented to and considered by the commission, and as the fair and only means of composing the situation and avoiding endless controversy and litigation the commission issued its report. In the Matter of Bills of Lading, 29 I. C. C. 417.
The Cummins Amendment makes it unlawful for the carrier to fix a period for giving notice of claims shorter than 90 days, for the filing of claims shorter than 4 months, and for the institution of suits shorter than 2 years. The law does not indicate the time or date from which these several periods of time shall be computed; that is, whether from the date of delivery by the carrier of the damaged property, or, in case of loss, after a reasonable time for delivery has elapsed, from the date shown on the bill of lading, or from the occurrence of the loss or of the damage. It seems clear that these provisions are, in common with the other matters governed by the amendment, confined to instances of loss, damage, or injury caused by the carriers. It will be necessary for the carriers to determine what periods of time they will fix for giving notice of claims, the filing of claims, and the institution of suits. The dates or times from which such periods shall run should also be fixed in the rules. In the interest of thorough understandings and to avoid controversies, it is very desirable that these rules be uniform for all the carriers of the country. It is to be remembered that the Cummins Amendment is not a separate statute, but is an amendment to the act. It must therefore be construed as a part of, and in connection with other portions of, the act, and in such a way as to give effect to the whole statute. There does not seem to be any indication of legislative intent to change any provision of the act other than that part known as the Carmack Amendment. The new amendment should, if possible, be so construed as to give full force to its clear purpose, without impairing the effect of any other provision of the act.
It is contrary to all canons of construction to hold that an act of Congress produces a result not intended by Congress unless the express language of the act compels such a construction. There is nothing in the expressed terms of this act, or in the history of this legislation, that shows any intent or purpose on the part of Congress to affect in any degree the existing rates charged by carriers for transporting property. The legislation is aimed at specified contracts and declares them to be unlawful. The lawful rates on file at this time, therefore, are the rates providing for the limited liability. The Cummins Amendment, by making contracts limiting liability for loss caused by the carriers unlawful, does not destroy these rates, but they remain in effect and are lawfully applicable, for the 10 per cent. increased rates are merely additional and cannot stand in and of themselves.
As we have seen, the Carmack Amendment, adopted in 1906, provided that no contract, receipt, rule, or regulation should exempt the carrier from the liability thereby imposed. As has been said, no effort was made to change rates because of that amendment to the act. The classifications or rate schedules provide that unless the terms of
Applying correct rules of interpretation, the Cummins Amendment does not automatically bring into effect the increased rates named in the classifications and tariff publications as applicable to shipments which are not made subject to the terms of the uniform or carrier's bill of lading.
2. May the carriers lawfully provide in their tariffs and rate schedules that their liability shall be for the full value of the property at the time and place of shipment?
It is argued that such a provision would be neither a limitation of the amount of recovery nor a representation or agreement as to value within the meaning of the new law. It is urged that this rule would relieve the question of the amount of liability from uncertainty, would afford a reasonable and uniform method of determining the measure of recovery, save endless litigation, with its attendant labor and expense, and avoid unjust discriminations.
The Cummins Amendment clearly places upon the carriers liability for the full actual loss, damage, or injury to the property transported which is caused by them, and it makes unlawful any limitation of that liability, or of the amount of recovery thereunder, in any receipt, bill of lading, contract, rule, regulation, or tariff filed with this commission, without respect to the manner or form in which such limitation is sought to be made. The loss or damage must, apparently, be either as of the time and place of shipment, time and place of loss or damage, or time and place of destination. Where rates are lawfully dependent upon declared values, the property and the rates are classified according to the character of the property, of which the value of the property may constitute an element, and such classification is necessarily as of the time and place of shipment. It is therefore believed that the liability of the carrier may be limited to the full value of the property so classified and established as of the time and place of shipment.
3. Does the amendment to the act apply to export and import shipments to and from foreign countries not adjacent to the United States? This must be answered in the negative, in view
The more important points, which seem to be surrounded with the most doubt and upon which opinions so far expressed most sharply conflict, are: 1. If no changes are made in the existing shipping contracts and rate schedules, will the higher of the fact that, while specifically stating that its rates provided therein automatically become lawful- terms shall apply to property received for transly applicable upon the date upon which the amend-portation from certain points to certain other ment takes effect? points, it makes no reference to shipments from point in the United States to a point in a nonadjacent foreign country, or from a nonadjacent foreign country to a point in the United States.
4. In the proviso, "that if the goods are hidden from view by wrapping, boxing, or other means, and the carrier is not notified as to the character of the goods," what is the proper interpretation to
be placed upon the words "and the carrier notified as to the character of the goods"?
Some argue that the word "character" nothing more than a statement of the ordinary name by which the commodity is known. On the other hand, it is urged that knowledge as to what the commodity is is necessary in order to apply to it any transportation rate, and that therefore the word "character" properly means more than the mere name of the commodity. It has been suggested that the real and proper meaning would be indicated by recasting the language as follows:
"Provided, however, that if a commodity in the course of transportation is hidden from view by wrapping, boxing, or other means, so that the carrier cannot know its character, that is to say, its grade, quality, and condition, it may, with the approval of the commission, publish and maintain rates based on value and require the shipper to state in writing the value of any shipment made, and beyond the value so stated the carrier shall not be liable."
is not [ of the shipment is known to the carrier, and the proviso does not apply. The Congress did not afmeans firmatively recognize any rates based upon declared value other than those authorized by this proviso. This, of course, does not mean that commodities may not be reasonably classified according to value and be subject to different rates applicable to different grades of the same commodity, which is a different matter from limiting the liability to the declared value.
It has also been suggested that, in view of the fact that the articles dealt with in this proviso are to be distinguished on the basis of value, the value becomes a peculiar quality of the property, and the word "character" should be construed as including value, and that when the shipper notifies the carrier of the character of the goods the notice is incomplete, unless the value is stated as a necessary element in pointing out the character of the goods. Another suggestion is that when common experience or knowledge does not clearly establish the nature of the goods, or the view is hidden by boxing, wrapping, or other means, and the carrier is not notified as to the true character of the goods, it may exercise the right to require the shipper to state in writing the value of the property.
The right of the carrier to initiate its rates and to consider value of the property tendered for transportation as an element in determining the classification thereof or the rate applicable thereto has not been denied by the act or withdrawn by this amendment. The right in certain instances to make varying rates upon a given article or commodity dependent upon its true value being recognized, and it being impossible for the carrier's agent to know the true value of the shipment unless it is declared by the shipper, and in view of the fact that the ordinary name of the commodity is essential to the application of any transportation rate whatsoever, it seems that the word "character" as used in this proviso must include the true and actual value as stated by the shipper.
The word "character" as here used clearly relates primarily to value, or to those qualities affecting value, and when the entire proviso is considered the meaning seems to be that if the qualities affecting value of the goods are hidden from the carrier's view, or are not known to the carrier, the proviso applies. It is a well-settled rule of statutory construction that the word "and" may be read as "or" in deference to the meaning of the context.
If the word "and" in the proviso is read as "or," the meaning is reasonably clear; whereas, if the letter of the statute is adhered to, the meaning is doubtful and difficult to determine. In those instances in which the carrier desires to limit its liability to the value of the property as specifically stated in writing by the shipper, the rate must be based upon the declared value and be so published; but the commission apparently must determine in advance of such publication that the commodity is one the value of which cannot be known to the carrier from ordinary sources or reasonable inspection, and to which rates based on declared value may be applied in connection with which the carrier's liability is limited to the value so declared. In determining that question the inquiry is whether or not the commodity is one the value of which is peculiarly within the knowledge of the shipper. If it has a definite market value, or its value depends upon facts of which the carrier has equal knowledge with the shipper, the "character"
When the goods are not hidden from view, and the carrier is advised as to their character, all contracts or agreements purporting to limit the liability of the carrier for loss or damage caused by it are made void. A carrier, after the Cummins Amendment goes into effect, may not contract to limit its liability for loss or damage caused by it to the property. There is, however, no inhibition as to the limitation of the liability of a carrier for losses not caused by it or a succeeding carrier to which the property may be delivered. The amendment has expressly reapplied the limitation of the prior act with respect to loss or damage caused by the carriers chargeable therewith. It follows, therefore, that the interpretation applied to the act before it was amended is equally applicable to the amendment in so far as the latter affects the right of a carrier to establish rates conditional upon the shipper's assumption of the entire risk of loss attributable to causes beyond the carrier's control. From this it follows that under the amendment a contract or a tariff may lawfully limit to a reasonable maximum the liability of a carrier for losses which it does not cause. It follows further that the rates provided by such tariff may be proportionate to the risk assumed.
This provision of the statute as to goods concealed from view and of the character of which the carrier is not advised clearly prescribes the right of carriers under the direction or approval of the commission to provide for a graduation of rates in accordance with the declared value of the property transported. The liability provided by the rates so established by the commission is applicable no less to instances of loss or damage chargeable to the negligence of the carrier than to those occasioned by causes beyond the carrier's control. But the carriers may not contract to limit their liability for loss, damage, or injury caused by them to property the character of which is manifested by the shipment itself or otherwise disclosed.
In this connection it has been suggested that the carrier might provide that in the event the shipper refused to declare the value the higher rates would apply. This suggestion cannot be approved. If the rate is lawfully conditioned upon the value as declared by the shipper, it is as much the shipper's duty to declare the true value of the shipment as it is his duty to declare the name of a commodity tendered for shipment as to which there are no different rates.
It is important to keep in mind that the carriers are not prohibited from making different rates dependent upon the value of different grades of a given commodity; that, except as covered by the Cummins Amendment, including approval of the rates by the commission, the carrier is subject to all of the liabilities imposed by that amendment; and that if, in any instance, the shipper declares the value to be less than the true value in order to get a lower rate than that to which he would otherwise be entitled, he violates, and is subject to the penalty prescribed in, section 10 of the act. The carrier would also be subject to the same penalty in such a case if, having knowledge that the value represented is not the true value, it nevertheless accepts the shipper's representation as to value for the purpose of applying the rate.
5. Do the terms of the Cummins Amendment apply to the transportation of baggage?
This must apparently be answered in the affirmative. Transportation of baggage is a part of the contract for transportation of the passenger. The carriers have always limited their liability for loss of or damage to baggage. The baggage check is
the carrier's receipt for the baggage. The condi- and the course to be pursued for the immediate tions attached to the carrier's liability are stated future in the light thereof. All of the questions in the fare schedules and on passage tickets of herein discussed are, of course, subject to judicial contract form. In National Baggage Committee v. | interpretation, and the views indicated herein A., T. & S. F. Ry. Co., 32 I. C. C. 152, the commis- might be somewhat changed in the light of more sion considered the carriers' rules relative to complete information supported by competent evicharges and liabilities in the transportation of bag- dence. gage and prescribed certain reasonable regulations, The classification, tariffs, receipt and other forms including reasonable insurance charges upon bag- used by the express companies have been pregage declared to be of greater value than the maxi- scribed by order of the commission. The new law, mum limit provided in the schedules and contract of course, applies to them as well as to other carfor carriage. All ordinary personal or sample bag-riers. They have presented suggested changes in gage is hidden from view by boxing, wrapping, or their rules and forms which will be disposed of by other means, and the amended law seems clearly a supplemental order in the Express Case. to recognize the carrier's right to fix conditions and terms applicable to the transportation of baggage dependent upon the value as declared by the person offering the baggage for transportation.
The necessity for revision of the bills of lading, live stock contracts, and other similar contracts of carriage, as well as of certain parts of the carriers' classifications and rate schedules, is manifest. Bills of lading and shipping contracts can and ought to be at once amended by eliminating obvi- (Submitted April 26, 1920. Decided June 1, ously unlawful and invalid provisions. Such action will obviate for the immediate future numerous controversies that otherwise would properly arise. Proper analysis should be made of the classifications and tariffs to bring them into harmony with the amended law.
1920.) No. 304.
ERROR 781(5)-WRIT OF
1. APPEAL AND
Such changes in classifications and rate schedules cannot be made upon statutory notice and become effective contemporaneously with the new law. Permission is therefore hereby given to carriers to make effective on June 2, 1915, upon not less than three days' notice to the public and to the commission, given in the manner prescribed in the act and in the commission's regulations, amendments to
the classifications and rate schedules which elimi
nate provisions or rules that are in conflict with the terms of the new law, provided no such amendment has the effect of increasing any rate charge for services.
(253 U. S. 217) LE CRONE v. McADOO, Secretary of the Treasury.
A writ of error to a judgment denying petition for mandamus against the Secretary of the Treasury must be dismissed where the original respondent had resigned his office and his successor was not substituted within 12 months, as required by Act Feb. 8, 1899 (Comp. St. § 1594).
2. MANDAMUS Cm 177 JURISDICTION TO AWARD DAMAGES LOST WHEN RIGHT TO WRIT IS LOST.
If, in a proper manner and a proper proceeding, it shall be made to appear that, with regard to any commodity or commodities, the existing rates do not afford the carriers proper compensation for the services they perform and the risk which is in
The right to recover damages in mandamus proceedings under Code of Law D. C. 1901, § posed upon them, it could hardly be denied that 1278, is incident to the allowance of the writ the rates on such commodities might properly be of mandamus; and, where that cannot be alincreased in a sufficient amount to properly com- lowed because of failure to substitute the sucpensate the carriers for their added risk and lia-cessor in office of the original respondent, the bility. Where rates are lawfully based upon de- whole proceeding is at an end. clared values, the difference in rates should be no more than fairly and reasonably represents the added insurance. It does not appear that this amendment to the act affords justification for any increase in rates on commodities in general. As has been said, the carrier may not lawfully impose unreasonable rates upon one commodity in order to compensate it for risk or liabilities incurred in
In Error to the Court of Appeals of the District of Columbia.
Petition for mandamus by John W. Le Crone, as Receiver of the Orinoco Company, Limited, against William G. McAdoo, Secre
connection with the transportation of another commodity, and it is not to be forgotten that the lia-tary of the Treasury. A judgment of the bilities here considered are only those for loss, Supreme Court of the District of Columbia damage, or injury to the property caused by a car- dismissing the petition was affirmed by the rier or its agents or employés; in other words, the loss, damage, or injury resulting from the neglects Court of Appeals (48 App. D. C. 181), and petitioner brings error. Writ of error "dismissed.
or omissions of a carrier or its agents.
The commission has been conducting an investigation with regard to bills of lading, entitled In the Matter of Bills of Lading, Docket No. 4844. Further hearings in that proceeding may be necessary in the light of the Cummins Amendment. In that connection matters that have been inform
Mr. Justice HOLMES delivered the opinion of the Court.
ally presented and urged in this informal proceed-in error. ing may be presented in a formal way, supported by testimony, and a determination can there be reached on questions as to which the commission now has no information upon which it could base a lawful order. What is attempted here is simply [1, 2] This is a petition to the Supreme to indicate the impressions gained from the expe- Court of the District of Columbia for mandarience had in the past and from the suggestions informally presented by those who are vitally in-mus to direct the Secretary of the Treasury terested in the effect of the Cummins Amendment to pay the amount of two certificates issued
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
Mr. George N. Baxter, of Cincinnati, Ohio, for plaintiff in error.
Mr. Solicitor General King, for defendant
to the petitioner by the Secretary of State. | of Secretary of the Treasury, his successor The petitioner is receiver of the Orinoco Com- was not substituted within twelve months; pany, Limited. That Company had claims which is the limit for such substitution fixed for damages against the United States of by the Act of February 8, 1899, c. 121, 30 Venezuela, which, with others, by agreement | Stat. 822 (Comp. St. § 1594). It is said that
the Code of the District of Columbia, § 1278, allows the petitioner to recover damages in the same proceeding and that the petition should be retained to charge Mr. McAdoo personally. But apart from other questions the damages are only incident to the allowance of the writ of mandamus, and as that cannot be allowed the whole proceeding is at an end. See Pullman Co. v. Knott, 243 U. S. 447, 451, 37 Sup. Ct. 428, 61 L. Ed. 841; Pullman Co. v. Croom, 231 U. S. 571, 577, 34 Sup. Ct. 182, 58 L. Ed. 375.
*between the two governments, the United States of America released upon receiving from the United States of Venezuela a certain sum in trust for the parties having the claims. By the Act of February 27, 1896, c. 34, 29 Stat. 32 (Comp. St. § 6668), moneys so received are to be paid into the Treasury and the Secretary of State is to "determine the amounts due claimants, respectively, * * and certify the same to the Secretary of the Treasury, who shall, upon the presentation of the certificates of the Secretary of State, pay the amounts so found to be due." Each of such trust funds is declared to be "appropriated for the payment to the ascertained beneficiaries thereof of the certificates" provided for. The answer alleged that there were pending in the same Supreme Court two bills in equity, one by a (Argued April 22, 1920. Decided June 1, 1920.) private person and one by the Orinoco Company, Limited, asserting claims to the fund,
Writ of error dismissed.
(253 U. S. 219) CITY OF NEW YORK v. CONSOLIDATED GAS CO. OF NEW YORK et al.
DENYING PETITION TO INTERVENE IS NOT AP-
that the respondent and petitioner both are 1. APPEAL AND ERROR 78(2), 87(3)—Order parties to those proceedings, the petitioner having submitted to the jurisdiction, and that the petitioner should be limited to those proceedings and await the result of the decrees. The petitioner demurred. The demurrer was overruled and the petition was dismissed by the Supreme Court and its judgment was affirmed by the Court of Appeals.
The theory of the answer seems to be that the purpose of the Act of Congress was to appropriate a fund to the claim and to transfer the claim to that fund, leaving the question of title open to litigation in the ordinary courts, as has been held in more or less similar cases. Butler v. Goreley, 146 U. S. 308, 309, 310, 13 Sup. Ct. 84, 36 L. Ed. 981; Id., 147 Mass. 8, 12, 16 N. E. 734; United States V. Dalcour, 203 U. S. 408, 422, 27 Sup. Ct. 58, 51 L. Ed. 248; Robertson v. Gordon, 226 U. S. 311, 317, 33 Sup. Ct. 105, 57 L. Ed. 236. See, also, Bayard v. White, 127 U. S. 246, 8 Sup. Ct. 1223, 32 L. Ed. 116. It is thought that Congress hardly can have sought to confer judicial powers upon the Secretary of State. United States v. Borcherling, 185 U. S. 223, 234, 22 Sup. Ct. 607, 46 L. Ed. 884. And as the certificates are not gifts but are in recognition of outstanding claims, Williams v.
Heard, *140 U. S. 529, 11 Sup. Ct. 885, 35 L. Ed. 550, reversing s. c., 146 Mass. 545, 16 N. E. 437, judicial action is supposed to be necessary for the final determination of the right. But we cannot consider that question or the other arguments upon the merits of the case, because, Mr. McAdoo having resigned the office
An application by a city for leave to intervene in the suit by a gas company to restrain the enforcement of a gas rate is addressed to the discretion of the court, and an order denying it is not a final order, which furnishes the basis for appeal.
2. COURTS 382(5)-FINAL ORDER IN CIRCUIT COURT OF APPEALS IN CASE NOT WITHIN ITS JURISDICTION CAN BE REVERSED.
Where the Circuit Court of Appeals affirmed an order which was not appealable in a suit in which the jurisdiction of the District Court depended solely on a claimed violation of the rights of plaintiff under the United States Constitution, so that the Supreme Court alone had appellate jurisdiction thereof, the Supreme Court has jurisdiction to review the judgment of the Circuit Court of Appeals, under Judicial Code, § 241 (Comp. St. § 1218) and will reverse that judgment and remand the case to that court, with directions to dismiss the appeal.
Appeal from the United States Circuit Court of Appeals for the Second Circuit.
Suit by the Consolidated Gas Company of New York against Charles D. Newton, Attorney General, and others, to enjoin the enforcement of the 80-cent gas law. The order of the District Court, denying application of the City of New York to intervene (256 F. 238), was affirmed by the Circuit Court of Appeals (260 F. 1022), and the City of New York appeals. Reversed and remanded to Circuit Court of Appeals, with directions to dismiss the appeal.
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