deposits. No doubt plausible explanations of his conduct came from Coleman and the (251 U. S. 516) DUNBAR v. CITY OF NEW YORK. No. 160. 1. CONSTITUTIONAL LAW 300-DUE PROCESS notice as to speculations may have been (Argued Jan. 21, 1920. Decided March 1, 1920.) slight, but taking the whole story of the relations of the parties, we are not ready to say that the two courts below erred in finding that Dresser had been put upon his guard. However little the warnings may have pointed to the specific facts, had they been accepted they would have led to an examination of the depositors' ledger, a discovery of past and a prevention of future thefts. A provision of a charter making water charges a lien on the property to which the water is furnished, though the meters were installed at the request of a tenant, does not deprive the property owner of property without due process of law in violation of Const. U. S. Amend. 14, § 1. 2. COURTS 90(6)—RIGHTS CANNOT BC BAS ED ON ERRONEOUS DECISIONS. No constitutional rights can be based on the error of prior decisions. In Error to the Supreme Court of the State of New York. [3, 4] We do not perceive any ground for applying to this case the limitations of liability ex contractu adverted to in Globe Refining Co. v. Landa Cotton Oil Co., 190 U. S. 540, 23 Sup. Ct. 754, 47 L. Ed. 1171. In accepting the presidency Dresser must be taken to have contemplated responsibility for losses to the bank, whatever they were, if chargeable to his fault. Those that happened were chargeable to his fault, after he had warnings that should have led to Action by Cornelia A. Dunbar against the steps that would have made fraud impossible, | City of New York. A judgment for defendant even though the precise form that the fraud would take hardly could have been foreseen. We accept with hesitation the date of De cember 1, 1908, as the beginning of Dresser's liability, but think it reasonable that interest should be charged against his estate upon the sum found by the Circuit Court of Appeals to be due. It is a question of discretion, not of right, Lincoln v. Claflin, 7 Wall. 132, 19 L. Ed. 106; Drumm-Flato Commission Co. v. Edmisson, 208 U. S. 534, 539, 28 Sup. Ct. 367, 52 L. Ed. 606; but to the extent that the decree of the District Court was affirmed, Kneeland v. American Loan & Trust Co., 138 U. S. 509, 11 Sup. Ct. 426, 34 L. Ed. #532 1052; De La Rama *v. De La Rama, 241 U. S. 154, 159, 36 Sup. Ct. 518, 60 L. Ed. 932, Ann. Cas. 1917C, 411, it seems to us just upon all the circumstances that it should run until the receiver interposed a delay by his appeal to this Court. The Scotland, 118 U. S. 507, 520, 6 Sup. Ct. 1174, 30 L. Ed. 153. Upon this as upon the other points our decision is confined to the specific facts. Decree modified by charging the estate of Dresser with interest from February 1, 1916, to June 1, 1918, upon the sum found to be due, and affirmed. Mr. Justice MCKENNA and Mr. Justice PITNEY dissent, upon the ground that not only the administrator of the president of the bank but the other directors ought to be held liable to the extent to which they were held by the District Court. 229 Fed. 772. Mr. Justice VAN DEVANTER and Mr. Justice BRANDEIS took no part in the decision. was affirmed by the New York Appellate Division (177 App. Div. 647, 164 N. Y. Supp. 519) and Court of Appeals (223 N. Y. 597, 119 N. E. 1039), and defendant brings error. Affirmed. Messrs. Harold G. Aron and Henry M. Wise, both of New York City, for plaintiff in error. Mr. William Herbert King, of New York City, for defendant in error. Mr. Justice MCKENNA delivered the opinion of the Court. Plaintiff in error, to whom we shall refer as plaintiff, is the owner of certain real prop517 erty and a building thereon *in the city of New York which she leased to William Hills and William Hills, Jr., copartners doing business under the style of William Hills, Jr. The lessee covenanted to pay the charges for water which should be assessed against or imposed upon the building during the lease, and if not so paid it should be added to the rent then due or to become due. The copartnership was subsequently ad judged bankrupt and at the time of the petition was indebted to the city in the sum of $379.89 for water supplied as measured by two meters which had been installed in the property. The city proved no claim in bankruptcy and a motion by plaintiff for an order directing the trustee to pay the water charges as a tax entitled to preference under the Bankruptcy Act (Comp. St. §§ 9585-9656) was denied on the ground that they were not a tax. The plaintiff then brought this action to cancel the charge as a lien upon the property For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (40 Sup.Ct.) and prayed an injunction against its enforce ment. [1] The contention against the charge of the city and the lien it asserts is that they are in violation of section 1 of the Fourteenth Amendment of the Constitution of the United States and because they deprive plaintiff of property without due process of law. which the lien is claimed, that the statute meant what the earlier case had suggested, the lien became unconstitutional,” and plaintiff cannot be charged with an "implication of assent" to it. Without attempting an es 519 timate of the *contention it is enough to say that the decision in this case and other cases are opposed to the contention, and that be sides no constitutional rights can be based on the error of prior decisions. Plaintiff's argument is somewhat difficult to state briefly. It commences by declaring that the question presented was left open in Provident Institution v. Jersey City, 113 U. S. 506, 5 Sup. Ct. 612, 28 L. Ed. 1102, which sustained the postponement of mortgages to the lien of water rents because it was said in that case that the complainant in the case knew what the law was when the mortgages were taken, and therefore "its own voluntary (Argued Jan. 22 and 23, 1920. Decided March act, its own consent," was "an element in the transaction." (252 U. S. 85) UNITED STATES v. A. SCHRADER'S SON, Inc. 1, 1920.) Counsel assumes that the case presented an instance of an express consent. In that MONOPOLIES ——17(1)—MANUFACTURER, BINDcounsel is mistaken. The consent was im518 plied from the fact that the law imposing *the water rents preceded the mortgages. And so in the water charge in controversy it was imposed and made a lien on plaintiff's property by the charter of the city, and therefore the Supreme Court at the first instance and afterwards in Appellate Division, and we may assume by the Court of Appeals, decided that The consent of plaintiff could be implied, and any other conclusion would have been impossible. A city without water would be a desolate place and if plaintiff's property was in such situation it would partake of the desolation. And as a supply of water is necessary it is only an ordinary and legal exertion of government to provide means for its compulsory compensation. It is of no consequence, therefore, at whose request the meters were installed in the prop erty. The meters, as observed by the Appellate Division, were "not the instrumentalities for furnishing the water"; they only registered its consumption. And, besides, the lease made by plaintiff contemplated the use of water by the lessees and provided, as far as the lessor (plaintiff) could, for the payment of the charges for it. That her tenants defaulted in their obligation by reason of their bankruptcy was her misfortune, but it did not relieve the property, which we may say, would be unfit for human habitance if it could not get water. ING CUSTOMERS TO OBSERVE RESALE PRICES While a manufacturer may indicate his wishes concerning resale prices, and decline further dealings with those who fail to observe them, he may not, under Act July 2, 1890, § 1,1 enter into agreements, whether express of implied from a course of dealing or other circumstances, with all customers in different states, binding them to observe fixed resale prices, thereby taking away dealers' control of their own affairs and destroying competition. Mr. Justice Holmes and Mr. Justice Brandeis dissenting. In Error to the District Court of the United States for the Northern District of Ohio. Criminal prosecution by the United States against A. Schrader's Son, Incorporated. A demurrer to the indictment was sustained (264 Fed. 175), and the government brings error. Reversed and remanded. Messrs. Henry S. Mitchell, of Washing. ton, D. C., and Solicitor General Alex. C. King, of Atlanta, Ga., for the United States. Mr. Frank M. Avery, of New York City, for defendant in error. *94 *Mr. Justice McREYNOLDS delivered the opinion of the Court. Defendant in error, a New York corporation, manufactured at Brooklyn, under letters patent, valves, gauges and other acces [2] Counsel appear to rely on prior deci-sories for use in connection with automobile sions of the court for relief of plaintiff; one in the Supreme Court, in which, it is said, a doubt was intimated whether a statute making a lessor liable for the personal debt of a lessee for water would be constitutional; and one in the Court of Appeals, which, to quote counsel, "having decided in 1910, three years prior to the inception of the charges for tires, and regularly sold and shipped large For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ing resales thereof they will sell only at certain fixed prices. It will be further observed that the retailers, to whom the jobbers in orrather than to the consuming public, and who dinary course of trade would naturally sell in turn sell and distribute these articles to and among the ultimate consumers, are not included within the alleged combination or conspir tract, combination in the form of trust or oth- |ther understanding or agreement that in makerwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations." After interpreting the indictment as indicated by quotations from its opinion which follow, the District Court sustained a demurrer thereto, basing the judgment upon construction of that act (264 Fed. 175): acy. "The so-called license agreements, exhibited "The substantive allegations of this indictment are that defendant is engaged in manufac- with the indictment, are in my opinion, both in turing valves, valve parts, pneumatic pressure substance and effect, only selling agreements. gauges, and various other accessories; that it The title to the valves, valve parts, pneumatic sells and ships large quantites of such articles pressure gauges, and other automobile accesto tire manufacturers and jobbers in the North-sories passed to the so-called licensees and liern district of Ohio and throughout the United censed jobbers." States; that these tire manufacturers and jobbers resell and reship large quantities of these products to (a) jobbers and vehicle manufacturers, (b) retail dealers, and (c) to the public, *95 The Court further said: consistency between the reasoning, if not be"Defendant urges that there is a manifest inMiles Medical Co. v. Park & Sons Co., 220 U. tween the holdings, of these two cases [Dr. S. 373, 31 Sup. Ct. 376, 55 L. Ed. 502, and United States v. Colgate Co., 250 U. S. 300, 39 The be taken in the ordinary sense imported by the *97 both within and without the respective states into which the products are shipped; that these acts have been committed within three years next preceding the presentation of this indictment and within this district; that the defend- Sup. Ct. 465, 63 L. Ed. 992]; that if the basic ant executed, and *caused all the said tire manu-principles announced in the latter case are to facturers and jobbers to whom it sold its said products to execute with it, uniform contracts concerning resales of such products; that every manufacturer and jobber was informed by the defendant and well knew when executing such contracts that identical contracts were being executed and adhered to by the other manufacturers and jobbers; that these contracts thus executed purported to contain a grant of a license from the defendant to resell its said products at prices fixed by it to (a) jobbers and vehicle manufacturers similarly licensed, (b) retail dealers, and (c) the consuming public; that all these contracts provided (that the) [concerning] products thus sold to tire manufacturers and jobbers (provided) that they should not resell such products at prices other than those fixed by the defendant. Copies of these contracts are identified by exhibit numbers and attached to the indictment. It is further charged that the defendant furnished to the tire manufacturers and jobbers who entered into such contracts lists of uniform prices, such as are shown in said exhibits, which the defendant fixed for the resale of its said products to (a) jobbers and vehicle manufacturers, (b) retail dealers, and (c) the consuming public, respectively; and that the defendant uniformly refused to sell and ship its products to tire manufacturers and jobbers who did not enter into such contracts and adhere to the uniform resale prices fixed and listed by the defendant. Further, that tire manufacturers and jobbers in the Northern district of Ohio and throughout the United States uniformly resold defendant's products at uniform prices fixed by the defendant and uniformly refused to resell such products at lower prices, whereby competition was suppressed and the prices of such products to retail dealers and the consuming public were maintained and enhanced. if the jobbers were competitors in the same ter- * "Granting the fundamental proposition stated in the Colgate Case, that the manufacturer has an undoubted right to specify resale prices and refuse to deal with any one who fails to maintain the same, or, as further stated, the act does not restrict the long-recognized right of a trader or manufacturer engaged in an entirely private business freely to exercise his own independent discretion as to the parties with whom he will deal, and that he, of course, may announce in advance the circumstances under which he will refuse to sell, it seems to me that it is a distinction without a difference to say the wholesalers. to create or maintain a monopoly, the act does not restrict the long-recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal And, of course, he may announce in advance the circumstances under which he will refuse to sell." The court below misapprehended the mean ing and effect of the opinion and judgment in that cause. We had no intention to overrule or modify the doctrine of Dr. Miles Medical Co. v. Park & Sons Co., where the "The point, however, which I wish to emphasize is that the allegations of this indictment, not alleging any purpose, or facts from which such a purpose can be inferred, to monop-effort was to destroy the dealers' independolize interstate trade, within the prohibition and meaning of section 2 of the Sherman AntiTrust Act and the last clause of section 2 of the Clayton Act, does not charge a crime under section 1 of the Sherman Anti-Trust Act as that act should be construed." Our opinion in United States v. Colgate Co. declared quite plainly: That upon a writ of error under the Criminal Appeals Act (34 Stat. 1246, c. 2564 [Comp. St. 1704]) "we have no authority to revise the mere interpretation of an indictment and are confined to ascertaining whether the court in a case under review erroneously construed the statute." "We must accept that court's interpretation of the indictments and confine our review to the question of the construction of the statute involved in its decision." That we were confronted by an uncertain interpretation of an indictment itself couched in rather vague and general language, the meaning of the opinion below being the subject of serious controversy. The "defendant maintains that, looking at the whole opinion, it plainly construes the indictment as alleging only recognition of the manufacturer's undoubted right to specify resale prices and refuse to deal with any one who failed to maintain the same.' "The position of the defendant is more nearly in accord with the whole opinion and must be accepted; and as counsel for the government were careful to state on the argument that this conclusion would require affirmation of the judgment below, an extended discussion of the principles involved is unnecessary." And further: ent discretion through restrictive agreements. Under the interpretation adopted by the trial court and necessarily accepted by us, the indictment failed to charge that Colgate Company made agreements, either express or implied, which undertook to obligate vendees to observe specified resale prices, and it was treated "as alleging only recognition if the manufacturer's undoubted right to specify resale prices and refuse to deal with any one who fails to maintain the same." It seems unnecessary to dwell upon the obvious difference between the situation presented when a manufacturer merely indicates his wishes concerning prices and declines further dealings with all who fail to observe them, and one where he enters into agreements-whether express or implied from a course of dealing or other circumstanceswith all customers throughout the different states which undertake to bind them to observe fixed resale prices. In the first, the manufacturer but exercises his independent discretion concerning his customers and there is no contract or combination which imposes any limitation on the purchaser. *100 In the second, the parties are combined through agreements designed to take away dealers' control of their own affairs and thereby destroy competition and restrain the free and natural flow of trade amongst the states. The principles approved in Dr. Miles Medical Co. v. Park & Sons Co., should have been applied. The judgment below must be reversed and the cause remanded for further proceedings in conformity with this opinion. Reversed and remanded. Mr. Justice CLARKE concurs in the result. Mr. Justice HOLMES and Mr. Justice BRANDEIS dissent. (252 U. S. 109) state court of Georgia jointly against a railLEE v. CENTRAL OF GEORGIA RY. CO. road and its engineer, and sought in a single et al. count, which alleged concurring negligence, (Argued Jan. 16, 1920. Decided March 1, to recover damages from the company under FEDERAL LAW. the federal Employers' Liability Act (Comp. St. §§ 8657-8665), and from the individual defendant under the common law. Each defendant filed a special demurrer on the ground of misjoinder of causes of action and misjoinder of parties defendant. The de *110 murrers were overruled by the trial court. The Court of Appeals-an intermediate appellate court to which the case went on exceptions-certified to the Supreme Court of the state the question whether such joinder was permissible. It answered in the negative. 147 Ga. 428, 94 S. E. 558. Thereupon the Whether two causes of action may be joined in a single count, or whether two persons may be sued in a single count, are matters of pleading and practice, relating solely to the form of the remedy, and when they arise in state courts the final determination of such matters ordinarily rests with the state tribunals, even if the rights there being enforced are created by fed-Court of Appeals reversed the judgment of eral law. 2. COURTS 394(25)—MATTERS NOMINALLY OF PROCEDURE IN STATE COURT REVIEWABLE ONLY WHEN IN FACT MATTERS OF SUBSTANCE. It is only when matters nominally of procedure are actually matters of substance, which affect a federal right, that the decision of the state court becomes subject to review by the federal Supreme Court. 3. MASTER AND SERVANT 311-FEDERAL EMPLOYERS' LIABILITY ACT DOES NOT MODI. FY RIGHTS OF EMPLOYÉS AGAINST EACH OTHER. The federal Employers' Liability Act (Comp. St. $8657-8665) does not modify in any respect rights of employés against one another existing at common law. 4. COURTS 394(25)-REFUSING TO PERMIT JOINDER OF RAILROAD COMPANY AND EMPLOYÉ IN A SINGLE COUNT DENIED NO RIGHT UNDER FEDERAL LAW. The holding of a state court, that in an action under the federal Employers' Liability Act (Comp. St. §§ 8657-8665) plaintiff could not sue the railroad company and its engineer jointly in a single count, abridged no substantive right under the federal law, especially where the state court had adopted the same rule in an action under the state Employers' Liability Act. the trial court (21 Ga. App. 558, 94 S. E. 888), and certiorari to the Supreme Court of the state was refused. The plaintiff then applied to this court for a writ of certiorari on the ground that he had been denied rights conferred by federal law, and the writ was granted. [1,2] Whether two causes of action may be joined in a single count or whether two persons may be sued in a single count are matters of pleading and practice relating solely to the form of the remedy. When they arise in state courts the final determination of such matters ordinarily rests with the state tribunals, even if the rights there being enforced are created by federal law. John v. Paullin, 231 U. S. 583, 34 Sup. Ct. 178, 58 L. Ed. 381; Nevada-California-Oregon Railway v. Burrus, 244 U. S. 103, 37 Sup. Ct. 576, 61 L. Ed. 1019. This has been specifically held in cases arising under the federal Employers' Liability Act. Minneapolis & St. Louis Railroad Co. v. Bombolis, 241 U. S. 211, 36 Sup. Ct. 595, 60 L. Ed. 961, L. R. A. 1917A, 86, Ann. Cas. 1916E, 505; Atlantic Coast Line Railroad Co. v. Mims, 242 U. S. 532, 37 Sup. Ct. 188, 61 L. Ed. 476; Louisville & Nashville Railroad Co. v. Holloway, 246 U. S. 525, 38 Sup. Ct. 379, 62 L. Ed. 867. It is only when On Writ of Certiorari to the Court of Ap matters nominally of procedure are actually peals of the State of Georgia. Action by B. C. Lee against the Central of Georgia Railway Company and another. A judgment overruling demurrers to the petition was reversed by the Georgia Court of Appeals (21 Ga. App. 558, 94 S. E. 888), and plaintiff brings certiorari. Affirmed. Messrs. Alexander A. Lawrence and Wil liam W. Osborne, both of Savannah, Ga., for petitioner. matters of substance which affect a federal right, that the decision of the state court therein becomes subject to review by this court. Central Vermont Railway Co. V. White, 238 U. S. 507, 35 Sup. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252; New Orleans & North Eastern Railroad Co. v. Harris, 247 U. S. 367, 38 Sup. Ct. 535, 62 L. Ed. 1167. [3, 4] The federal Employers' Liability Act does not modify in any respect rights of employés against one another existing at comMessrs. H. W. Johnson and T. M. Cunning- mon law. To deny to a plaintiff the right to ham, Jr., both of Savannah, Ga., for re-join in one count a cause against another emspondents. Mr. Justice BRANDEIS delivered the opinion of the Court. ployé with a cause of action against the employer in no way abridges any substantive *111 right of the plaintiff against the *employer. An injured employé brought an action in a The argument that plaintiff has been discrim For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |