of determining with certainty what is kosher | them, since they expressly require that any according to the rabbinical law and the cus- representation that a product is kosher must toms, traditions, and precedents of the ortho- not only be false but made with intent to dedox Hebrew religious requirements; but ap- fraud. The Appellate Division of the Supellants allege that whenever they could pos- preme Court of New York, upholding the sibly determine in advance whether any meat validity of a statute substantially the same commodity in their honest belief might be as those now under review, in People v. Atlas, called kosher, they have sold the same as 183 App. Div. 595, 596, 597, 170 N. Y. S. kosher, but not otherwise. The bills aver 834, 835, thus characterized it: that irreparable injury to appellarts' business, property, good will, and reputation will result. It does not appear that any of the appellants has ever been prosecuted for a violation of the statutes or has ever been specifically threatened with prosecution, the threats alleged being, in substance, simply that all violators of the statutes will be prosecuted. The District Court, in each case, after a hearing upon an order to show cause why a preliminary injunction should not issue, upheld the statutes, denied the injunction and

dismissed the bill.

[1] The general rule is that equity will not interfere to prevent the enforcement of a criminal statute even though unconstitutional. Packard v. Banton, 264 U. S. 140, 143, 44 S. Ct. 257, 68 L. Ed. 596; In re Sawyer, 124 U. S. 200, 209-211, 8 S. Ct. 482, 31 L. Ed. 402; Davis & Farnum Manufacturing Co. v. Los Angeles, 189 U. S. 207, 217, 23 S. Ct. 498, 47 L. Ed. 778. But appellants seek to bring themselves within an exception to this general rule, namely, that a court of equity will interfere to prevent criminal prosecutions under an unconstitutional statute when that is necessary to effectually protect property rights. Packard v. Banton, supra; Terrace v. Thompson, 263 U. S. 197, 214, 44 S. Ct. 15, 68 L. Ed. 255. That these bills disclose such a case of threatened actual and imminent injury as to come within the exception is not beyond doubt. But upon a liberal view of the decisions above cited and other decisions of this court (see Kennington v. Palmer, 255 U. S. 100, 41 S. Ct. 303, 65 L. Ed. 528, and cases referred to in footnote), we accept the conclusion of the lower court, based on the decisions of this court, that if the statutes under review are unconstitutional appellants are entitled to equitable relief; and pass to a consideration of the constitutional questions.

*501

[2] *1. The specific complaint is that the word "kosher" and the phrase "orthodox Hebrew religious requirements" are so indefinite and uncertain as to cause the statutes to be unconstitutional for want of any ascertainable standard of guilt. It is in support of this assumption that appellants allege they are unable to determine with any degree of certainty whether a particular meat product is kosher, and, when called upon, at their peril, to make a determination and label the product accordingly, they have decided and will continue to decide that all of the products sold by them are nonkosher. But obviously the statutes put no such burden upon

"The purpose of the statute, manifestly, is tc prevent and punish fraud in the sale of meets or meat preparation, and it only operates on those who knowingly violate its provisions, for it is expressly provided that there must be both an intent to defraud and a false represen

tation."

It thus appears that, whatever difficulty there may be in reaching a correct determination as to whether a given product is kosher, appellants are unduly apprehensive of the effect upon them and their business, of a wrong conclusion in that respect, since they are not required to act at their peril but only to exercise their judgment in good faith, in order to avoid coming into conflict with the statutes. Indeed, putting the statutes aside, such judgment they would be bound to exercise upon ordinary principles of fair dealing. By engaging in the business of selling kosher products they in effect assert an honest purpose to distinguish to the best of their judg

*502

ment between *what is and what is not kosher. The statutes require no more. Furthermore, the evidence, while conflicting, warrants the conclusion that the term "kosher" has a meaning well enough defined to enable one engaged in the trade to correctly apply it, at least as a general thing. If exceptional cases may sometimes arise where opinions might differ, that is no more than is likely to occur, and does occur, in respect of many criminal statutes either upheld against attack or never assailed as indefinite. In Nash v. United States, 229 U. S. 373, 376, 377, 33 S. Ct. 780, 781 (57 L. Ed. 1232), this court had before it a similar contention in respect of the AntiTrust Act and disposed of it as follows:

"And thereupon it is said that the crime thus defined by the statute contains in its definition an element of degree as to which estimates may differ, with the result that a man might find himself in prison because his honest judgment did not anticipate that of a jury of less competent men. * *

"But apart from the common law as to restraint of trade thus taken up by the statute the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only

may he incur a fine or a short imprisonment, as here; he may incur the penalty of death."

See, also, Waters-Pierce Oil Co. v. Texas (No. 1) 212 U. S. 86, 109, 29 S. Ct. 220, 53 L. Ed. 417; Miller v. Strahl, 239 U. S. 426, 434, 36 S. Ct. 147, 60 L. Ed. 364; Sligh v. Kirkwood, 237 U. S. 52, 35 S. Ct. 501, 59 L

(45 S. Ct.)

In Error to the Supreme Court of the State of Minnesota.

On Writ of Certiorari to the Supreme Court of the State of Minnesota.

Ed. 835; Coomer v. United States, 213 F. 1, 5, 129 C. C. A. 617. Many illustrations will readily occur to the mind, as for example statutes prohibiting the sale of intoxicating liquors and statutes prohibiting the transmisAction by the Fullerton-Krueger Lumber sion through the mail of obscene literature, Company against the Northern Pacific Railneither of which have been found to be fatal-way Company and another. On writs of erly indefinite because in some instances opin-ror and certiorari to review the judgment of ions differ in respect of what falls within the Supreme Court of the State of Minnesota their terms. Moreover, as already suggested, (156 Minn. 20, 194 N. W. 9) reversing judgsince the statutes require a specific intent to ment for plaintiff. Writ of error dismissed, and judgment affirmed.

#503

de*fraud in order to encounter their prohibitions, the hazard of prosecution which appellants fear loses whatever substantial foundation it might have in the absence of such a requirement. Omaechevarria v. Idaho, 246 U. S. 343, 348, 38 S. Ct. 323, 62 L. Ed. 763.

*436

*Messrs. P. L. Solether and John Junell, both of Minneapolis, Minn., for plaintiff in error and petitioner.

Mr. Charles W. Bunn, of St. Paul, Minn., for defendants in error and respondents.

Mr. Justice McREYNOLDS delivered the opinion of the Court.

After suing out the writ of error, No. 152, the Lumber Company obtained a certiorari, No. 179, to review the same judgment. The record plainly discloses that a right under an act of Congress was claimed below and The cause is properly here by cerdenied. tiorari, and upon it the issue can be decided. That adequate ground for the writ of error was specially set up below is not clear. It will be dismissed.

[3] 2. Lewis & Fox Company is a Massachusetts corporation conducting a general provision supply business including the shipment and sale of original packages into and within the state of New York. It is this situation which forms the basis of the contention that the commerce clause is violated. It is enough to say that the statutes now assailed are not aimed at interstate commerce, do not impose a direct burden upon such commerce, make no discrimination against it, are fairly within the range of the police power of the state, bear a reasonable relation to the legitimate purpose of the enactments, and do not conflict with any congressional legislation. Un- On January 24, 1921, the original action der these circumstances they are not invalid was brought in the district court, Hennepin because they may incidentally effect inter-county, to recover excess freight charges destate commerce. Slight v. Kirkwood, 237 U. manded by respondent between November S. 52, 60, 61, 35 S. Ct. 501, 59 L. Ed. 835; 25, 1912, and September 16, 1913, in violation Savage v. Jones, 225 U. S. 501, 524-526, 32 of section 4347, Minnesota General Statutes. S. Ct. 715, 56 L. Ed. 1182. Admitting original liability, the railway comAffirmed. pany relied upon the local statute of limitation, fixing six years as the time within

Mr. Justice BRANDEIS took no part in which such actions must be begun. To this

the consideration of this case.

(266 U. S. 435)

#437

the *reply was that the prescribed period of limitation had been extended by paragraph (f), § 206, Federal Transportation Act 1920, 41 Stat. 456, 462 (Comp. St. Ann. Supp. 1923,

FULLERTON-KRUEGER LUMBER CO. v. § 100714 cc), which provides:

NORTHERN PAC. RY. CO. et al.

(two cases).

"The period of federal control shall not be computed as a part of the periods of limitation

(Argued Dec. 12, 1924. Decided Jan. 5, 1925.) in actions against carriers or in claims for rep

Nos. 152 and 179.

1. Limitation of actions 6(1) Federal Transportation Act held not to revive actions theretofore barred by limitations.

Transportation Act U. S. Feb. 28, 1920, § 206 (f), being Comp. St. Ann. Supp. 1923, § 100714cc, excluding period of federal control from limitation periods in actions against carriers, did not revive causes of action which had theretofore become barred by state statute of limitations.

2. Statutes

263-Presumptively a statute is

not retroactive.

All statutes will be considered prospective, unless language expressly or by necessary implication requires other construction.

aration to the Commission for causes of action arising prior to federal control."

And upon the sole point of law thus raised the cause is before us.

The petitioner maintains that Congress intended to revive actions against carriers when the period designated by the state statute for bringing them had expired during federal control, and asserts that the mischief to be remedied indicates such purpose and the ordinary meaning of the words employed discloses it. The respondent insists that a statute should never be given retroactive effect where another construction is fairly permissible, as here; that if in the circumstances the act of Congress be so construed

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

it would create new causes of action and thus Appeal from the District Court of the Unitpermit the taking of property without due ed States for the Northern District of Texas. process of law.

[1, 2] The Supreme Court of Minnesota held, rightly, we think, that the Transportation Act was not intended to revive or restore rights of action barred before it be

came effective.

"It is a rule of construction, that all statutes are to be considered prospective, unless the language is express to the contrary, or there is a necessary implication to that effect." Harvey v. Tyler, 2 Wall. 328, 347 (17 L. Ed. 871); Sohn v. Waterson, 17 Wall. 596, 599, 21 L. Ed. 737; Twenty Per Cent. Cases, 20 Wall. 179, 187, 22 L. Ed. 339; Chew Heong v. United States, 112 U. S. 536, 559, 5 S. Ct. 255, 28 L. Ed. 770; Shwab v. Doyle, 258 U. S. 529, 534, 42 S. Ct. 391, 66 L. Ed. 747, 26 A. L. R. 1454. And see Hopkins v. Lincoln Trust Co., 233 N. Y. 213, 135 N. E. 267.

Applying this rule, we find no circumstances existing when the statute in question was enacted, nor any language therein, which shows that it should be applied to causes barred by limitation before its passage.

The judgment below is
Affirmed.

In the matter of the Walker Grain Company, bankrupt; W. W. Wilkinson, trustee. Contempt proceeding for refusal of the Farmers' & Mechanics' National Bank to comply with the mandate of the Supreme Court. 264 U. S. 588, 44 S. Ct. 402, 68 L. Ed. 864. From an order adjudicating the bank in contempt, it appeals. On motion to dismiss. Appeal dismissed.

*504

*Mr. Mark McMahon, of Fort Worth, Tex., for appellee.

Mr. Charles A. Boynton, of Waco, Tex., for appellant.

Mr. Justice SUTHERLAND delivered the opinion of the Court.

The Walker Grain Company, on July 27, 1918, borrowed from the American National Bank of Fort Worth, Tex., $10,000, for which

*505

it executed its demand note *payable to the bank. August 16th following, a petition in bankruptcy was filed against the grain company, upon which it was adjudicated a bankrupt. After the petition was filed the bankrupt paid the amount of the note and thereafter appellant succeeded to all the assets and rights and assumed all the liabilities of the American National. Upon these facts the trustee in bankruptcy filed a motion (Submitted on Motion to Dismiss Oct. 6, 1924. with the referee to summarily require apDecided Jan. 5, 1925.)

(266 U. S. 503)

FARMERS' & MECHANICS' NAT. BANK v.

WILKINSON.

No. 487.

pellant to restore the amount of such payment. Appellant, by proper pleading, denied the jurisdiction of the referee, insisted 1. Courts 385(1)—After denial of certiorari that the trustee should proceed by a plenary to review decision of Circuit Court of Ap-suit, and alleged that the note was secured peals, affirming judgment of District Court, by property of the bankrupt and that the Supreme Court without power to review on direct appeal or error.

payee bank was entitled to priority of payment. The referee found that the note was not so secured, that appellant had no color of right to the payment made after the com

District Court was bound to give effect to decision of Court of Appeals, which became final by denial of certiorari, and its decree is not reviewable by Supreme Court on direct ap-mencement of the bankruptcy proceedings, peal or error.

2. Courts 385(12)-Contempt order not reviewable on direct appeal or writ of error. An order in contempt proceeding in bankruptcy, being in part punitive, is not ordinarily open to review by Supreme Court on direct appeal or writ of error.

3. Courts 385(4)-Direct appeal or error on constitutional grounds held not available to review contempt order of trial court.

and ordered appellant to pay over to the The findings trustee the amount received. and conclusions of the referee were approved by an order of the District Court, and its order was affirmed upon petition to revise by the Court of Appeals for the Fifth Circuit (295 F. 120), and this court denied a petition for certiorari (264 U. S. 588, 44 S. Ct. 402, 68 L. Ed. 864). After the mandate had gone down to the District Court, the referee The District Court in bankruptcy having ordered appellant to comply therewith, but plenary power to punish for contempt, respond | appellant refused to do so, which refusal was ent, required to restore preferential payment certified to the District Court for its action. and fined for contumacious behavior, cannot, At the same time the trustee moved the after order has become final by affirmance in Circuit Court of Appeals and denial of certiorari, by direct appeal or writ of error, procure review in Supreme Court on constitutional grounds, resting on false premise as to power of District Court.

court for an order to compel compliance with
the mandate. After a hearing the District
Court found appellant guilty of contempt,
and, in addition to commanding payment of
the amount ordered by the referee, imposed

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
Opinion amended 267 U. S. —-, 45 S. Ct. 351, 69 L. Ed. —-.

*506

(45 S.Ct.)

criminal contempts; but that is unimportant under chapter 448, § 4, 39 Stat. 726, 727 (Comp. St. § 1649a), requiring disregard of such mistakes.

a fine of $2,500, as punishment for appel- of error, the appropriate mode of review in lant's contumacious behavior, one-half payable to the United States and one-half to the trustee in bankruptcy. From this order appellant has not only taken this appeal but also a petition to revise to the Circuit Court [3] Appellant insists, however, that the of Appeals for the Fifth Circuit. jurisdiction of this court attaches upon the grounds that the District Court was without *Appellee has submitted a motion to dis-jurisdiction to make the order, and that miss the appeal or affirm the decree of the there was a denial of constitutional rights. District Court upon the grounds, among oth- See Grant v. United States, 227 U. S. 74, 78– ers, that this court is without authority to 79, 33 S. Ct. 190, 57 L. Ed. 423. Jurisdiction entertain the appeal, and that there is no of the District Court here over the person substance in the questions sought to be pre-and over the subject-matter of contempts is sented. The motion to dismiss must be beyond question; and the challenge to the jugranted. risdiction, as well as the assumed denial of constitutional rights, apparently, are made to rest only upon the assertion that it was not within the power of the referee or the District Court, as a court of bankruptcy, to require the bank, by a summary order, to restore to the trustee the amount of the payment in question; the contention being that the only remedy was by plenary action with the right of trial by jury. But, since the decision of the Circuit Court of Appeals, as already stated, is conclusively against appellant upon that issue, and prevented any further consideration of it by the District Court, the asserted basis for a direct resort to this court is without any substance. Appeal dismissed.

[1] Upon the appeal here appellant seeks a review of the order adjudging appellant in contempt and also of the jurisdictional issues disposed of by the original decree approving the action of the referee which the Circuit Court of Appeals refused to disturb. All questions concerning the validity and merits of that decree were finally disposed of by the decree of the Circuit Court of Appeals and the denial of the application for a certiorari by this court. The District Court was bound to give effect to the deci sion of the Circuit Court of Appeals, so that what, in effect, we are asked to do is to review and reverse the decree of the latter. The power here to review that decree has been exhausted, but, in any event, it could not be exercised upon direct appeal or error. Brown v. Alton Water Co., 222 U. S. 325, 331-334, 32 S. Ct. 156, 56 L. Ed. 221; Carter v. Roberts, 177 U. S. 496, 500, 20 S. Ct. 713, 44 L. Ed. 861; Union Trust Co. v. Westhus, 228 U. S. 519, 522, 524, 33 S. Ct. 593, 57 L. Ed. 947; Metropolitan Co. v. Kaw Valley District, 223 U. S. 519, 522-524, 32 S. Ct. 246, 56 L. Ed. 533; Shapiro v. United States, 235 U. S. 412, 415 417, 35 S. Ct. 122, 59 L.

Ed. 291.

[2] It follows that the only questions open for consideration are those arising from the contempt order. But that order, being in part punitive, takes character from its criminal feature and, ordinarily, such an order is not open to review by this court upon direct appeal or error. O'Neal V. United States, 190 U. S. 36, 38, 23 S. Ct. 776, 47 L. Ed. 945; Hayes v. Fischer, 102 U. S. 121, 122, 26 L. Ed. 95; In re Chetwood, Petitioner, 165 U. S. 443, 462, 17 S. Ct. 385, 41 L. Ed. 782. And see Union Tool Co. v. Wilson, 259 U. S. 107, 110-111, 42 S. Ct. 427, 66 L. Ed. 848; Bessette v. W. B. Conkey Co., 194 U. S. 324, 336, 338, 24 S. Ct. 665, 48 L. Ed. 997; Matter of Christensen Engineering Co., 194 U. S. 458, 461, 24 S. Ct. 729, 48 L. Ed. 1072; In re Merchants' Stock & Grain Co., Peti$507 tioner, 223 U. S. 639, *641, 642, 32 S. Ct. 339, 56 L. Ed. 584. It may be said in passing that the case is here upon appeal not upon writ

(266 U. S. 511)

NORTON et al. v. LARNEY et al. (Submitted Dec. 8, 1924. Decided Jan. 5, 1925.)

No. 146.

1. Courts 285-Suit to quiet title involving question as to conclusiveness of recital in decision of Commissioner, under United States laws, held within jurisdiction of District Court; "arising under law of the United States."

Suit to quiet title to land alleged to have been allotted to Indian, involving question as to conclusiveness of recital as to parentage of Indian, in decision of Commissioner approving enrollment of and making allotment to Indian, under Act March 3, 1905, held within jurisdicarising under a law of the United States," tion of federal District Court, being a case within Judicial Code, § 24, subd. 1 (Comp. St. § 991).

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, AriseArising.]

2. Courts 279-Jurisdiction of federal court must affirmatively and distinctly appear.

Jurisdiction of federal court must affirma

tively and distinctly appear by allegations of bill or complaint, and cannot be helped by presumptions or by argumentative inferences drawn from pleadings.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 45 S.CT.-10

Bill of complaint may be amended, under leave of trial court, at any stage of proceedings, while record remains under court's control, so as to show that federal court has juris-tributive share of the lands of the Creek Nadiction.

Suit by Cheparney Larney, a minor, and Bennie Green, his legal guardian, against L. B. Norton and others. Decree for complain-ents refused to give any information, and ant was affirmed by the Circuit Court of Appeals (289 F. 395), and defendants appeal. Affirmed.

that the child was thereupon called by the name of Cheparney Larney, "Cheparney" being a Creek word signifying "little boy." The important words of the decision are:

"The evidence and the records of this office

show that said Cheparney Larney is the child of Jacob Larney and Bettie Larney, whose names appear as 'Big Jack' and 'Bettie' on a schedule

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