tober 1st of each year, or exceed 40 tons in one day during any other season. curacy the volume or true character of the fumer which are being given off daily from the works of either company. Averages may The cause will be retained for further not be relied on with confidence, since im- action and either party may apply hereafter proper operation for a single week or day | for appropriate relief. night destroy vegetation over a large area, while the emission of great quantities of fumes during a short period would affect but slightly the average for a month or year. It appears that in 1913 the total ores smelted by the Ducktown Company amount, ed to 152,249 tons, or 304,498,000 pounds,20 per cent sulphur; total matte shipped was 12,537,000 pounds,-about 4 per cent of the ore; the total sulphur in the smelted ores not accounted for, and which escaped into the air in the form of sulphur dioxid, was 13,102 tons, or 26,204,000 pounds,-over 2 pounds of sulphur for each pound of matte, and an average of more than 35 tons per day. During July, 1913, the total matte shipped (approximately the production) | was 846,000 pounds -more was shipped in June and less in August. The July produc tion was thus approximately 7 per cent of the year's total. The sulphur in the fumes generated in connection with the production for this month, not redeemed by the acid plant and emitted into the air, may be fairly estimated as not less than 7 per cent of 13,102, or 917 tons, -substantially 30 tons per day. This amount produced harmful results and must be diminished. Within ten days either side may present a decree in conformity herewith, together with such suggestions as seem desirable. Mr. Justice Hughes, dissenting: I do not think that the evidence justifies the decree limiting production as stated. The Chief Justice and Mr. Justice Holmes join in this dissent. (237 U. S. 469) M. V. B. PARKER, Piff. in Err., v. JULIA A. MCLAIN, Executrix of the Estate of Carey McLain, Deceased. OURTS (8 391) ERROR TO STATE COURT 1. Whether, by consenting to the revivor of an action in the name of plaintiff's executrix, and thus recognizing the latter as the real party in interest, the defendant was estopped from subsequently challenging purely a question of local law or practice, her capacity to maintain the action, was the decision of which by a state court may not be reviewed by the Federal Supreme Court. [Ed. Note.--For other cases, see Courts, Cent. 2. The objection that a decree of a court of another state was not proved, conformably to U. S. Rev. Stat. § 105, Cemp. Stat, 1913, § 1519, because the authenticated record produced in evidence did not contain all the pleadings and proceedings in the suit, but only the decree, with its recitals and findings, is so clearly lacking in merit as to afford no basis for the exercise by the Federal Supreme Court of its appellate jurisdiction over a state court,especially where the recitals and findings were so full and explicit and the terms of the decree so direct that nothing more was required to disclose its full purpose, or what was determined by it. It is impossible from the record to ascertain with certainty the reduction in the sulphur content of emitted gases necessary to render the territory of Georgia immune from injury therefrom; but adequate relief, we are disposed to think, will follow a decree restraining the Ducktown Company from continuing to operate its plant other wise than upon the terms and conditions following: (1) It shall keep daily records showing fully and in detail the course and result of the operations. (2) A competent inspector, to be appointed by this court, shall have access to all the books and records of the company, shall make frequent careful observations of the conditions-at least once each fortnight-during the next six months, and at the end of that time shall make full report with appropriate recommendations. An adequate sum to cover the necessary cost and expenses must be de- 3. A Federal question which rests upon posited with the clerk by the company. an obviously false assumption is so plain(3) It shall not permit the escape into they devoid of merit as to afford no basis for the exercise by the Federal Supreme Court air of fumes carrying more than 45 per cent of its appellate jurisdiction over a state of the sulphur contained in the green ore court. subjected to smelting. (4) It shall not permit escape into the air of ga-es the total sulphur content of which shall exceed 20 tons during one day from April 10th to Oc [Ed. Note. For other cases, see Courts, Cent. ig. § 1049-1077; Dec. Dig. § 394.1 COURTS (§ 394) ERROR TO STATE COURTFRIVOLOUS FEDERAL QUESTION. ¡Ed. Note.--For other cases, see Courts, Cent. 188 1049-1077; Dec. Dig. § 394.] [No. 220.] •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Submitted April 14, 1915. Decided May 10, ing the right to sue for damages without 1915. rescinding the contract, has taken the precaution in this, as in other counts, to make N ERROR to the Supreme Court of the a tender of such instruments as would IN ERROR to the Supreme a judgment plate the defendant in statu quo. which reversed, with a direction to enter judgment for the plaintiff, a judgment of the District Court of Johnson County, in that state, in favor of defendant in an action upon a foreign judgment. Dismissed for want of jurisdiction. See same case below, 88 Kan. 717, 129 Pac. 1140; on rehearing, 88 Kan. 873, 131 Pac. 153. The facts are stated in the opinion. Messrs. Edward P. Garnett and Isaac O. Pickering for plaintiff in error. The gist of these several counts is fraud and deceit, and money paid out to defendant in consequence thereof, and the prayer of the petition is to recover the money so obtained, with interest thereon. The judgment responds to the petition, its prayer, and the proof." After securing that decree, McLain brought an action thercon in the district court of Johnson county, Kansas, and during the pendency of the action died, leaving a will. The will was duly probated in Kansas, Mr. W. R. Thurmond for defendant in the state of his residence, and letters testa error. mentary were issued in that state whereby his widow became his executrix. An an Mr. Justice Van Devanter delivered the cillary administrator was also appointed opinion of the court: by the probate court of Jackson county, Missouri. Thereafter the action in Kansas was revived in the name of the executrix, with the defendant's express consent, and in regular course a trial was had at which all questions of fact and law were resolved in the plaintiff's favor, save that it was held that the real party in interest was not the executrix, but the Missouri administrator, and that the action ought not to have been revived in the name of the executrix. Judgment was rendered for the defendant, and upon appeal to the supreme court of Kansas was reversed, with a direction to enter judgment for the plaintiff. 88 Kan. 717, 129 Pac. 1140, SS Kan. 873, 131 Pac. 153. The present writ of error was then sued out by the defendant. In a suit in the circuit court of Jackson county, Missouri, wherein the court had jurisdiction of the parties and the subjectmatter, Carey McLain secured a decree against M. V. B. Parker for a considerable sum of money. The suit was brought and the decree rendered upon the theory that Parker had fraudulently induced McLain to join him in the purchase of certain property; that by falsely overstating the value of the property, the price at which it was being purchased, and the amount he was contributing to the price, Parker had secured from McLain several sums as the latter's share of the purchase money when in truth these sums greatly exceeded his share, and that in consequence McLain was entitled to surrender his interest in the property to Parker, and call upon him to refund what was paid to him. Before beginning the suit McLain executed and tendered to Parker appropriate deeds for the property, and when the suit was begun the deeds were brought into court and lodged with the clerk, to be disposed of by the decree when rendered. Following a recital of these matters and a finding that McLain had been damaged to the extent of his payments to Parker, the decree ordered that the former have and recover from the latter the amounts paid,-each being definitely stated,-with interest at 6 per cent per annum from the date of the decree, and directed that upon the satisfaction of the decree the deeds lodged with the clerk be delivered by him to Parker. The latter carried the case to the supreme court of Missouri, which affirmed the decree, and in doing so pointed out the nature of the suit in these words (229 Mo. 58, 87, 93, 129 S. W. 500): "Plaintiff, whilst charging The contentions advanced by the defendfraud and deceit in the petition, and hav-ant in the supreme court of Kansas upon Our jurisdiction to review the judgment of the highest court of a state turns upon whether a Federal right was specially set up or claimed in that court and denied by its decision. Judicial Code, § 237 [36 Stat. at L. 1156, chap. 231, Comp. Stat. 1913, § 1214]. And to be effective for this purpose, the assertion of a Federal right must not be frivolous or wholly without foundation. It must at least have fair color of support, for otherwise an utterly baseless Federal right might be set up or claimed in almost any case, and the jurisdiction of this court invoked merely for purposes of delay. Hamblin v. Western Land Co. 147 U. S. 531, 37 L. ed. 267, 13 Sup. Ct. Rep. 353; Wilson v. North Carolina, 169 U. S. 586, 595, 42 L. ed. 865, 871, 18 Sup. Ct. Rep. 435; New Orleans Waterworks Co. v. Louisiana, 185 U. S. 336, 344, 46 L. ed. 936, 941, 22 Sup. Ct. Rep. 691; Sawyer v. Piper, 189 U. S. 154, 156, 47 L. ed. 757, 758, 23 Sup. Ct. Rep. 633. direct, that nothing more was required to disclose its full purpose or what was determined by it. The remaining contention was equally without color, because it rested upon an obviously false assumption. The decree did not purport to lay any reciprocal duty or obligation upon McLain, but, on the con which the jurisdiction of this court is sought to be rested are (a) that under the law of Missouri, where the decree sued on was rendered, the administrator appointed in that state was the real party in interest, and therefore the executrix was without legal capacity to maintain the action; (b) that the decree was not proved conformably to the law of Congress (Rev. Stat. §trary, proceeded upon the theory that he 905, Comp. Stat. 1913, § 1519), because, as was objected when the proof was offered, the authenticated record produced in evidence did not contain all the pleadings and proceedings in the suit, but only the decree, with its recitals and findings; and (c) that by the terms of the decree the payment of the money by the defendant, and the execution and delivery of the deeds by McLain, were intended to be reciprocal, interdependent, and concurrent acts, and that to make the decree the basis of a judgment in Kansas against the defendant for the payment of the money without requiring performance of the reciprocal obligation imposed upon McLain would contravene the full faith and credit clause of the Federal Constitution (art. 4, § 1) and the law enacted thereunder by Congress (Rev. Stat. § 905), and would deprive the defendant of the due process of law and the equal protection of the laws secure! by the 14th Anndment. The first contention was overruled because, as was said in the opinion, "the defendant explicitly consented to the revivor in the name of the executrix, .nd in view of that fact cannot be he..rd to question her capacity to maintain the action." Whether by consenting to the revivor, and thus recognizing the executrix as the real party in interest (see Gen. Stat. [Kan.] § 6023), the defendant was estopped from subsequently challenging her capacity to maintain the action, was purely a question of local law or practice, and its decision by the supreme court of the state is controlling. had done all that could be required of him. This was recognized by the supreme court of Kansas, which said in its opinion (pp. 720, 721): "He was given an absolute and unconditional judgment for the recovery of a specific sum of money. . . . Its enforcement was not made to depend upon any act to be subsequently performed. When it was paid or satisfied the defendant was entitled to receive the deeds from he clerk.” And again, p. 874. "If collection is made here it must be presumed that the defendant, upon showing that fact to the Missouri court, can obtain his deeds, just as he might do if the judgment had been satisfied in any other manner, and just as he might procure a discharge of any judgment against him, the amount of which had been collected by suit thereon in another state." What has been said sufficiently discloses that the Federal questions raised in the case were so plainly devoid of merit as to afford no basis for a review in this court. Writ of error dismissed. BURLINGTON, & QUINCY RAILROADS (8 229*)-RAILWAY OPERATION The term "trains," as used in the The next contention was wholly without March 2, 1893 (27 Stat. at L. 531, chap. provisions of the safety appliance act of any support, and was so held by the su- 196, Comp. Stat. 1913, § 8605), and its preme court of the state. There is nothing amendments, forbidding the operation of in the full faith and credit clause of the trains in which less than the requisite numConstitution or in the statute enacted there-ber of cars are controlled by air brakes, under which requires that the authenticated includes transfer trains of freight cars carryproof of a decree shall include all the pleading no caboose or markers, which are opeings and proceedings in the suit, or which rated by yard or switching crews between ings and proceedings in the suit, or which two freight yards of an interstate railway attempts to specify what parts of the proceedings in a state court shall be included in making up the record in an adjudicated cause. While there may be instances in which a decree or judgment could not well be understood, or would not clearly show what was determined, unless read in connection with the pleadings or other proceedings, this was not such an instance. The recitals and findings were so full and Argued January 7 and 8, 1915. Decided explicit, and the terms of the decree so company on opposite sides of the Missouri river over a considerable stretch of main line track which intersects at grade the tracks of other railway companies. [Ed. Note. For other cases, sec Railroads, ent. Dig. 743; Dec. Dig. § 229. For other definitions, see Words and Phrases, First and Second Series, Train.] [No. 630.] May 10, 1915. •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes ONS N WRIT of Certiorari to the United, by which the passenger trains and some of States Circuit Court of Appeals for the freight trains of the Rock Island and the Eighth Circuit to review a judgment Wabash railroads enter and leave the city. which reversed a judgment of the District Court for the Western District of Missouri in favor of the United States in an action to recover penalties under the safety appliance acts. Judgment of Judgment of the Circuit Court of Appeals reversed, and that of the District Court affirmed. To Both yards are used for receiving and breaking up incoming trains, assembling and starting outgoing trains, and assorting, storing, and distributing cars. reach their ultimate destinations, whether on the defendant's road or on those of other carriers, a large proportion of the cars See same case below, 127 C. C. A. 438, have to be moved from one yard to the 211 Fed. 12. The facts are stated in the opinion. Assistant Attorney General Underwood for petitioner. Messrs. H. M. Langworthy, W. D. McLeod, O. H. Dean, William Warner, and O. M. Spencer for respondent. other, and this is accomplished by transfer trains which are run over the main-line track connecting the yards. These trains usually consist of an engine and about thirty-five cars, are operated by what are termed yard or switching crews, and carry no caboose or markers. They have no fixed schedules and are not controlled by a train Mr. Justice Van Devanter delivered the despatcher, but by block signals, as opinion of the court: This was an action for penalties under the law of Congress relating to safety appliances. Four violations were charged. One consisted in using a car with a defective coupler and the others in running certain transfer trains without having the requisite percentage of air brakes so connected that they could be operated by the engineer. The first is no longer in controversy. As to the others, the controverted question at the trial was not whether the air-brake requirement, if applicable, was violated, but whether it applied to such trains. The district court, deeming the requirement applicable, directed a verdict and entered a judgment for the government, and the circuit court of appeals, being of a different opinion, reversed the judgment, one judge dissenting. 127 C. C. A. 438, 211 Fed. 12. A writ of certiorari granted under § 262 of the Judicial Code [36 Stat. at L. 1162, chap. 231, Comp. Stat. 1913, § 1239] brings the case here. all other trains moving over the same track. Each train is moved as a unit from one yard to the other, and not infrequently is both preceded and followed by other trains, passenger and freight. The three trains, the running of which is charged to have been violative of the statute, were transfer trains of the class just described. They were run from one yard to the other on August 9, 1910, and were composed respectively of 42, 36, and 39 cars, of which only 9 in one train and 10 in each of the others had their air brakes connected for use by the engineer. At that time air brakes were required to be used on 75 per cent of the cars in a train. Re Power or Train Brakes, 11 Inters. Com. Rep. 429, 437. Giving effect to the views quite recently expressed in United States v. Erie R. Co. 237 U. S. 402, 59 L. ed., 35 Sup. Ct. Rep. 621, we think these trains came within the air-brake requirement, which the amendatory act of 1903 [32 Stat. at L. 943, chap. The facts disclosed by the evidence are 976, Comp. Stat. 1913, § 8613] declares these: The defendant operates a railroad "shall be held to apply to all trains which passes through Kansas City, Mis- on any railroad engaged in interstate comsouri, and is used largely in interstate com- merce." According to the fair acceptation merce. Among its terminal facilities at of the term they were trains in the sense. that point are two freight yards known as of the statute. The work in which they the Twelfth street yard and the Murray were engaged was not shifting cars about yard. These yards are on opposite sides of in a yard or on isolated tracks devoted to the Missouri river, the distance between switching operations, but moving traffic their nearest points being about 2 miles. over a considerable stretch of main-line The track connecting them is one by which track,-one that was a busy thoroughfare passenger and freight trains enter and for interstate passenger and freight traffic. leave the city; in other words, a main-line Every condition suggested by the letter and track. For a distance of 3,000 feet it is upon spirit of the air-brake provision was presa single-track bridge spanning the river, and ent. And not only were these trains exoff the bridge it intersects at grade twelve posed to the hazards which that provision or fifteen tracks of other companies and was intended to avoid or minimize, but unpasses through the Union Depot tracks. less their engineers were able readily and Besides its use by the defendant's trains, a quickly to check or control their moveconsiderable portion of it is also the line' ments they were a serious menace to the safet of other trains which the statute was equally designed to protect. That they carried no caboose or markers is not material. If it were, all freight trains could easily be put beyond the reach of the statute and its remedial purpose defeated. Neither is it material that the men in charge were designated as yard or switch ing crews, for the controlling test of the statute's application lies in the essential nature of the work done rather than in the names applied to tho-e engaged in it. The judgment of the Circuit Court of Appeals must therefore be reversed and that of the District Court affirmed. It is so ordered. Mr. Justice McReynolds took no part in the consideration and decision of this cause. (237 U S. 447) v. CHARLES DE WITT, Trading as Charles COUBIN § 39445 ERROR TO STATE COURT- credits when its action was invoked for that purpose. Cent. g. 514; Dec. Dig. § 326.®] [Ed. Note.--For other cases, see Bankruptcy, BANKRUPTCY (§ 387*)-JUDGMENT - RES JUDICATA-COMPOSITION-SET-OFF. 4. No adjudication setting off, under the bankrupt act of July 1, 1898 (30 Stat. at L. 544, chap. 541, Comp. Stat. 1913, $$ 9586, 9652), § 68a, against the proved claim of a creditor, a claim against it which ed assets, was involved in bankruptcy prowas listed among the bankrupt's unliquidatceedings terminating in a decree in composition, were so creditor, though objecting to the composition, made no attempt to have the set-off adjudicated in the bankruptcy court, made no opposition to the confirmation of the composition, and took and holds its composition dividend on the full other creditors. amount of its claim in the same manner as [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 603-605, 607-616; Dec. Dig. § 387.*] [No. 191.] Argued March 10, 1915. Decided May 10, I 1915. N ERROR to the Court of Appeals of the State of Maryland to review a judg ment which affirmed a judgment of the 1. A plea of res judicata, based upon Superior Court of Baltimore City, in that a judgment of a Federal court adjudicat-state, in favor of plaintiff. in an action in ing a right of Federal origin, asserts a which defendant interposed a plea of res right which, if denied by a state court. judicata, based upon certain proceedings in makes the case reviewable in the Federal Supreme Court under the provisions of the Judicial Code, § 237 (36 Stat. at L. 1156, chap. 231, Comp. Stat. 1913, § 1214), gov. erning writs of error to state court -. [Ed Note.- For other cases, see Courts, Cent. Tag. 11 1049 1077; Dec. Dig § 394.] BANKRUPTCY (§ 357) EFFECT OF COMPOSITION. a court of bankruptcy. Affirmed. See same case below, 120 Md. 381, 87 Atl. 927, Ann. Cas, 1915A, 702. The facts are stated in the opinion. 2. The effect of the composition pro-G. Hayes for defendant in error. ceeding authorized by the bankrupt act of July 1, 1898 (30 Stat, at I.. 544, chap. 541. Comp. Stat. 1913, § 9585), § 12, as amended by the act of June 25, 1910 (36 Stat. at L. $38, chap. 412, Comp. Stat. 1913, 88 9580. 9596), is to substitute composition for bank Mr. Justice Day delivered the opinion of the court: ruptcy proceedings in a certain sense, and in a measure to supersede the bankruptcy pro ceeding, and to reinvest the bankrupt with all his property, free from the claims of his creditors. [Ed. Note For other cases, see Bankruptcy } § ent. Dig. I GC-605, 67-616; Dec. Dig. 357.) BANKRUPTCY (§ 320°)—SET-OFF. Defendant in error, Charles De Witt, trading as Charles De Witt & Company, plaintiff in the court below, and, hereinafter spoken of as the plaintiff, brought his action in the superior court of Baltimore city, Maryland, to recover of the Cumberland Glass Manufacturing Company, hereinafter called the Glass Company, upon the ground that DeWitt, having entered into a written 3. The object of the provision of the contract with the Mallard Distilling Combankrupt act of July 1, 1898 (30 Stat, at, pany of New York to supply them with cerI.. 544, chap. 541, Comp. Stat. 1913, §§ 9585, 9652), § 68a, that "in all cases of mutual debts or mutual credits between the estate of a bankrupt and a creditor the account shall be stated and one debt shall be set off against the other, and the balance only shall be allowed or paid," was to give the bankruptcy court the right to apply the established principles of set-off to mutual tain lettered flasks, the Glass Company, with knowledge of that contract, by and through the medium of their agents, did visit the Mallard Distilling Company, and maliciously and without just cause, with the intent to injure the plaintiff and to derive a benefit for itself, did cause, induce, and procure the said Mallard Distilling •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |