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(267 U. S. 228)

(45 S. Ct.)

appeal was taken directly to this Court on

KAPLAN v. TOD, Commissioner of Immigra- the alleged infringement of the appellant's

tion.

(Argued Jan. 26, 1924. Decided March 2,

1925.) No. 241.

1. Citizens 9-Feeble-minded alien child did not become citizen on naturalization of father with whom she was living pending deportation; "dwelling in United States."

Feeble-minded alien child who was excluded under Act March 26, 1910, but handed over to Immigrant Aid Society pending deportation, on suspension of deportation due to World War, and permitted by society to live with father, did not become a citizen on naturalization of father during her minority, under Rev. St. § 2172 (Comp. St. § 4367), since she was not "dwelling in the United States," not having lawfully landed.

[Ed. Note. For other definitions, see Words and Phrases, Second Series, Dwelling in the United States.]

2. Aliens 54-Feeble-minded alien child who had lived with father more than five years pending deportation could be deported; "found in United States"; "entered United States."

Feeble-minded alien child excluded under Act March 26, 1910, but handed over to Immigrant Aid Society pending deportation, on suspension of deportation due to World War, and permitted by society to live with father, could be deported on warrant issued more than five years after she was brought to the United States, since she had not begun to reside permanently in the United States within Act March 2, 1907, § 5 (Comp. St. § 3962), had not "entered," and was not "found" in the United States, within Act Feb. 5, 1917, § 19 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 42891⁄4jj).

Appeal from the District Court of the United States for the Southern District of New York.

Habeas corpus proceedings by Esther Kap lan against Robert E. Tod, Commissioner of Immigration, Ellis Island, Port of New York. From order dismissing petition, petitioner appeals. Affirmed.

Messrs. James Marshall and Elijah N. Zoline, both of New York City, for appellant. Mr. Asst. Atty. Gen. Donovan, for appellee.

229

constitutional rights. Chin Yow v. United States, 208 U. S. 8, 13, 28 S. Ct. 201, 52 L. Ed. 369; Ng Fung Ho v. White, 259 U. S. 276, 284, 42 S. Ct. 492, 66 L. Ed. 938.

On

The appellant was born in Russia. July 20, 1914, being then about thirteen years old, she was brought to this country, where her father already was, by her mother. Upon examination she was certified to be feeble minded, and was ordered to be excluded, but before the order could be carried into effect the European war had begun. Deportation necessarily was suspended, and she was kept at Ellis Island until June, 1915. In the latter half of that month she was handed over to the Hebrew Sheltering and Immigrant Aid Society upon its undertaking to accept cus

tody of the child until she could be deported safely, to return her when required, and meanwhile to prevent her becoming a public charge. The Society allowed her to live with her father, which she has done ever since. On December 14, 1920, her father was naturalized, she being then about nineteen. The warrant of deportation was issued on January 19, 1923; the writ of habeas corpus was allowed on April 24, and was dismissed on the following October 9.

*230

[1, 2] It is not questioned that the appellant rightly was denied admission in July, 1914, or that she is feeble minded *still. Act of March 26, 1910, c. 128; 36 Stat. 263. But it is said that she became a citizen by the naturalization of her father while she was a minor and in this country, Rev. St. § 2172 (Comp. St. § 4367) and that she cannot be deported upon a warrant issued more than five years after her entry into the United States. Act of February 5, 1917, c. 29, § 19; 39 Stat. 874, 889 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 42894jj); Act of February 20, 1907, c. 1134, § 20; 34 Stat. 898, 904. The answers to both arguments are much the same. Naturalization of parents affects minor children only "if dwelling in the United States." Rev. St. § 2172. The appellant could not lawfully have landed in the United States in view of the express prohibition of the Act of 1910 just referred to, and until she legally landed "could not have dwelt within the United States." Zartarian v.

*Mr. Justice HOLMES delivered the opin- Billings, 204 U. S. 170, 175, 27 S. Ct. 182, 184 ion of the Court.

This is an appeal from an order dismissing a petition of the appellant for a writ of habeas corpus. The petition alleges that the petitioner is a citizen of the United States, and that she is unlawfully detained by the respondent under a warrant of deportation issued by the Assistant Secretary of Labor, without jurisdiction and without due process of law contrary to the Fifth Amendment of the Constitution of the United States. An

(51 L. Ed. 428). Moreover while she was at Ellis Island she was to be regarded as stopped at the boundary line and kept there unless and until her right to enter should be declared. United States v. Ju Toy, 198 U. S. 253, 263, 25 S. Ct. 644, 49 L. Ed. 1040. When her prison bounds were enlarged by committing her to the custody of the Hebrew Society, the nature of her stay within the territory was not changed. She was still in theory of law at the boundary line and had

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 45 S.CT.-17

plaintiff had not received compensation therefor, held within jurisdiction of District Court of district in which the coal was seized; the complaint setting out a substantial claim, under Lever Act, § 10 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115% ii), and Const. Amend. 5.

gained no foothold in the United States. | railroads, that such use was a public use conNishimura Ekiu v. United States, 142 U. S. nected with the common defense, and that 651, 661, 12 S. Ct. 336, 35 L. Ed. 1146. She never has been dwelling in the United States within the meaning of the Act. Still more clearly she never has begun to reside permanently in the United States within the later Act of March 2, 1907, c. 2534, § 5; 34 Stat. 1229 (Comp. St. § 3962). United States ex rel. Patton v. Tod (C. C. A.) 297 F. 385, affirming (D. C.) 292 F. 243; United States ex rel. De Rienzo v. Rodgers, 185 F. 334, 107 C. C. A. 452.

The later of the limitation acts, the Act of February 5, 1917, c. 29, § 19, 39 Stat. 874, 889, applies to "any alien who at the time of entry was a member of one or more of the classes excluded by law" and to "any alien who shall have entered or who shall be found in the United States in violation of this Act." For the reasons already stated the appellant never has entered the United States within the meaning of the law, and is not properly described in the warrant as "found in the

*231

United States in violation of the immigrant authorities." Theoretically she is in custody at the limit of the jurisdiction awaiting the

order of the authorities. It would be manifestly absurd to hold that the five years run in favor of one held at Ellis Island for deportation, and as we have said the position of the appellant is the same.

Order affirmed.

(267 U. S. 302)

In Error to the District Court of the United States for the Eastern District of Penn sylvania.

Action by the Archibald McNeil & Sons Company, Inc., against the United States. Judgment for plaintiff and the United States brings error. Affirmed.

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It alleged:

That jurisdiction of the action arises unUNITED STATES v. ARCHIBALD MCNEIL der the Fifth Amendment and the tenth sec

& SONS CO., Inc.

tion of the Lever Act. 40 Stat. 276, 279, c. 53

(Argued Jan. 9, 1925. Decided March 2, 1925.) (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115ii).

No. 444.

1. Appeal and error 544 (3) Supreme Court's review of District Court's judgment on direct writ of error held limited to questions of law apparent on face of pleadings directly relating to court's jurisdiction. Where the parties agreed, on direct writ of error, under Judicial Code, § 238 (Comp. St. § 1215), to review District Court's judgment, rendered after trial without jury, under Rev. St. §§ 649, 700 (Comp. St. §§ 1587, 1668) that the only question was whether District Court

had jurisdiction to render the judgment, and where the record contained no bill of exceptions, the Supreme Court can review only questions of law apparent on the face of the pleadings, so far as they directly relate to the court's jurisdiction.

2. Courts 282(1), 284—Action against Unit

ed States for coal commandeered by Fuel Administrator held within jurisdiction of District Court.

That the coal in question had been shipped from the mines under valid contracts during the first part of October, 1919, was owned by the claimant, and prior to October 30, 1919, was at Port Richmond piers, Philadelphia, or at Port Reading piers, New Jersey.

That "by virtue of the authority conferred by the aforesaid act of Congress, the President of the United States, acting by and through the Fuel Administrator at Port Richmond piers, Philadelphia, or at Port Reading piers, New Jersey, commandeered and requisitioned" this coal during November and "The said coal was comDecember, 1919. mandeered and requisitioned from or through the Commissioner of the Tidewater Coal Exchange, the superintendent of transportation of the Philadelphia & Reading Railroad

Company, the shipping and freight agent of the United States Railroad Administration at Port Reading terminal piers, New Jersey, Action against the United States, in which the Bituminous Coal Distribution Committee, the complaint alleged that the President, the Regional Coal Committee, the Philadelthrough the Fuel Administrator, commandeered phia & Reading Railroad Company, the Port and requisitioned coal owned by plaintiff for Reading Railroad Company, the federal use by the United States in the operation of treasurer at Port Reading terminal piers of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(45 S.Ct.) the United States Railroad Administration, surance Company v. Folsom, 18 Wall. 237, and the Jamison Coal & Coke Company, the 21 L. Ed. 827; Law v. United States (Janvendors of the said coal to the plaintiff. All uary 5, 1925) 266 U. S. 494, 45 S. Ct. 175, of the aforesaid coal was received, accepted, 69 L. Ed. -; Judicial Code, § 238 (Comp. retained and used by the United States of St. § 1215). America, and used in the operation of various railroads, to wit: Boston & Maine Railroad, Maine Central Railroad-which said use was a public use connected with the common defense."

That the fair and reasonable value of the coal was $4.536 per ton f. o. b. the mines;

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that nothing has been paid to claimant on account of said coal so commandeered and requisitioned, and it should have judgment for the value thereof with interest.

A motion by the United States, to dismiss the action upon the ground that the claimant was a citizen of Connecticut and there

[2] Jurisdiction was invoked under the Lever Act. The claim is for something alleged to have been commandeered or requisitioned by the President, as provided by section 10, and this section confers jurisdiction without qualification upon District Courts to hear and determine controversies directly resulting from such action. Houston Coal Co. v. United States, 262 U. S. 361, 365, 43 S. Ct. 612, 67 L. Ed. 1028. Proceedings in the district where the seizure actually occurred are not forbidden, and seem entirely appropriate.

The allegations of the complaint were sufficient to set out a substantial claim under a federal statute. Accordingly, there was jurisdiction in the court to pass upon the questions so presented. Binderup v. Pathé Exchange, 263 U. S. 291, 305, 44 S. Ct. 96, 68 L. Ed. 308. Affirmed.

OHIO UTILITIES CO. v.
TIES COMMISSION

(Argued Jan. 20-21, 1925.

1925.) No. 210.

(267 U. S. 359) PUBLIC UTILIOF OHIO.

Decided March 2,

7-Rule as to

fore the court lacked jurisdiction, was overruled. Thereupon the United States interposed a demurrer, and set up that the court had no jurisdiction of the cause; that the statement of claim showed no cause of action; that under the Lever Act District Courts of the United States have jurisdiction of actions only after determination by the President of the value of the property taken, expression of dissatisfaction by the owner, and payment of 75 per centum of the determined amount; that the complaint sets forth a diversion of coal under section 25 of the Lever Act (Comp. St. 1918, Comp. St. Am. Supp. 1919, § 3115% q), not a requisition under section 10, and that the remedy, if any, was to sue the Agent designated by the President under section 206 (a) of the Transpor-poses, is not a matter of outlay, but of estitation Act 1920, c. 91, 41 Stat. 456, 461 (Comp. St. Ann. Supp. 1923, § 100714 cc). This was overruled and the United States answered. It was stipulated by counsel that "a jury trial being waived, the issues of fact in this case may be tried and determined by the court without the intervention of a jury, in accordance with sections 649 and 700 of the United States Revised Statutes (Comp. St. § 1587, 1668)." The cause was heard by the court upon the pleadings and evidence. What purports to be a transcript of the latter is printed; but it was not made part of the record by bill of exceptions. The trial judge filed an opinion and entered judgment for the claimant. No special findings were asked or made.

The cause is here by direct writ of error. The parties agree that only the question of jurisdiction is open. For the United States it is said "the court below was without jurisdiction to render the judgment, and that is the sole question presented."

*307

[1] *As the record contains no bill of exceptions, upon this direct writ of error we can review only questions of law apparent on the face of the pleadings in so far as they directly relate to the court's jurisdiction. In

1. Public service commissions
determination of reproduction value stated.
Reproduction value, for rate-making pur-
mate, should include a reasonable allowance for
organization and other overhead charges that
necessarily would be incurred in reproducing
the utilities, and in estimating what reasonably
would be required for such purposes proof of
actual expenditures originally made, though
helpful, is not indispensable.

2. Public service commissions

19(1)—Com

mission's order, rejecting one item and reducing others, of valuation fixed by commission's engineers, held arbitrary.

Where engineers of Public Utilities Commission made itemized inventory and valuation of utility's property, based on reproduction value, less depreciation, for rate-making purposes, and there was no evidence in the proceedings before the commission to contradict the inventory and valuation, commission's order, rejecting one item and reducing others, held arbitrary.

3. Constitutional law 242, 298 (7)—Rate allowing electric company less than 5 per cent. on valuation of property held confiscatory, in violation of Fourteenth Amendment.

Rate allowing electric company less than 5 per cent. on valuation of its property held confiscatory, in violation of Const. Amend. 14.

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

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

Proceeding by the Ohio Utilities Company The order of the commission is assailed as before the Public Utilities Commission of confiscatory, and therefore in contraventiou Ohio. Order of Commission fixing valua- of the Fourteenth Amendment. The specific tion and rates was affirmed by the Supreme grounds of complaint in respect of the order, Court of the state of Ohio (108 Ohio St. 143, so far as necessary to be stated and consid140 N. E. 497), and the petitioner brings er- ered, are as follows: (1) The value of the ror. Reversed and remanded. property should have been fixed at $154,655.93; (2) under the evidence, the allowance for operating expenses, including taxes, should have been at least $38,744.85; (3) the return to the company should have been on the basis of 8 per cent. upon the value stated in (1), or $12,372 annually.

*369

*Messrs. Timothy S. Hogan and J. C. Martin, both of Columbus, Ohio, for plaintiff in

error.

Messrs. J. W. Bricker, of Columbus, Ohio, and B. D. Huggins, of Hillsboro, Ohio, for defendant in error.

Property Valuation. An examination of the record shows that the engineers of the

Mr. Justice SUTHERLAND delivered the commission made an itemized inventory and opinion of the Court.

The Ohio Utilities Company is engaged in supplying gas and electricity for light, heat, and power to various communities in Ohio. In 1920 it filed with the Utilities Commission rate schedules for gas and electrical service in the village of Hillsboro. The rates were protested and the commission ordered a hearing. Pending a decision, the company was allowed to collect the rates in accordance with its schedule upon condition that it would return to its customers any excess over the rates finally fixed, for the due performance of which it furnished a bond. After a hearing and rehearing, the commission reduced the electrical service rates set forth in the company's schedule, and fixed the same for residence and commercial lighting at 12 cents per kilowatt hour for the first 200 hours per month and 10 cents per kilowatt hour for all over 200 hours, and for private garage automobile charging a minimum of $1 As a basis for these rates, the commission found that the fair value of the physical property of the company, used and useful in the furnishing of electrical service to consumers in Hillsboro, was $138,521, to

per month net.

which allowances were added as follows: Taxes during construction, $1,081; interest during construction, $1,500; to maintain an adequate stock of materials and supplies,

$1,071; working capital for carrying on the

electrical service in Hillsboro, $2,882-bringing the value of the property, as of August 30, 1920, for rate-making purposes, to the

*361

valuation of the company's property, based on reproduction value less depreciation, from which it appears that the aggregate fair value of the property for rate-making purpos es was $154,655.93. This valuation was confirmed by the oral testimony of the engineers; it was acquiesced in by the company. and we find no substantial evidence in the record to the contrary. The commission accepted the valuation of its engineers in all respects except that it rejected or reduced the amount of the following items: Preliminary organization expenses, $5,000, rejected outright; interest for one year's construction period, reduced from $4,507.98, as estimated

*362

and *recommended, to $1,500, a reduction of $3.007.98; working capital, being one-twelfth of the annual operating expenses and cost of coal for one month, reduced from $4,198.42 to $2,882, a reduction of $1,316.42. It also appears that the engineers' valuation of the buildings and plant equipment, $122,276.15, was carried into the commission's computation at the round sum of $122,000. The aggregate, therefore, of the rejections and reductions is $9,600.55.

[1,2] The item of $5,000 seems to have been rejected upon the ground that there was no proof of actual expenditure. Reproduction value, however, is not a matter of outlay,

but of estimate, and should include a reasonable allowance for organization and other overhead charges that necessarily would be incurred in reproducing the utility. In estimating what reasonably would be required for such purposes, proof of actual expenditures originally made, while it would be helpful, is not indispensable. The commission's chief engineer, explaining the appearance of the item in his report, called attention to the account system prescribed by the commission, which, among other things, provided that un

total sum of *$145,055. The commission further found that the reasonable operating expenses (including an allowance of $3,000 for taxes) in furnishing such electrical service for a period of one year should be $37,608, and a reasonable annual allowance for depreciation should be $7,252 (being 5 per centum of the value), making a total of $44,860. The commission then found that a rea-der the head of “organization" was included sonable return to the company for the period of one year would be $8,703, and estimated that the rates fixed would produce the aggregate of these two sums, namely, $53,563. Upon error to the state Supreme Court the order of the commission was affirmed. 108 Ohio St. 143, 140 N. E. 497.

incorporation fees paid to the government and other fees and expenses incident to organizing the utility and placing it in readiness to do business, attorney's fees, cost of preparing and issuing certificates of stock, etc., and testified that the item was an estimate made as the result of an investigation

(45 S.Ct.)

by the commission's engineer on the spot. | return to the company of $7,566.15, or less There was no testimony to the contrary; and than 5 per cent. upon the value of the propthe company, in view of the concession, evi- erty. That this is so plainly inadequate as dently deemed it unnecessary to produce to result in depriving the company of its evidence upon the point. That such expenditures in a substantial amount would necessarily be made in reproducing the utility is clear; it is not suggested that the estimate of the engineers is excessive or unfairly made and the rejection of the entire amount cannot be regarded as otherwise than arbitrary.

*363

*The reduction of the item for interest seems to be of like character. The engineers' estimate was based upon their conclusion that it would require one year for the construction of the plant, and interest at 6 per cent. was allowed on the estimated cost for half of that period. There is no justification in the record, so far as we can see, for a reduction of the item to an amount which is less than one-third of the engineers' estimate.

The item for working capital was carefully worked out by the commission's own engineers, there was no evidence to the contrary, and the reduction seems to have been equally capricious.

The curtailment of the estimated value of the buildings and plant equipment by the sum of $276.15 finds no explanation in the record, and probably was a sacrifice to the easy convenience of round numbers.

Operating Expenses. The commission's engineers reported and testified that the actual operating expenses for the year ending Feb ruary 28, 1921, were $38,744.85, to which should be added the amount of a reasonable depreciation allowance, fixed by the commission itself at $7,252. We are unable to find any evidence in the record which impeaches the accuracy of the sum of these expenses, or which casts doubt upon their fairness as a measure of the necessary annual operating expenses. Yet the commission reduced the amount to $37,608, a difference of $1,136.85. The commission found, it is true, that the plant had been inefficiently operated. But we find no evidence to this effect in the record and none has been called to our attention. To the contrary, the commission's engineer who examined the property and accounts of the company testified that he considered the expenditures of the company were reasonable and that the plant was efficiently and economically managed.

[3] Return. As bearing upon the amount of return to which the company is entitled,

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a summary of the fore*going may now be considered: Value of property for rate-making purposes, $154,655.93; annual amount of income based upon rates fixed by commission, $53,563; operating expenses, together with amount of annual depreciation allowed by commission, $45,996.85-leaving a balance as

property without due process of law may not be doubted. See Bluefield Co. v. Pub. Serv. Comm., 262 U. S. 679, 692-695, 43 S. Ct. 675, 67 L. Ed. 1176, and cases cited; S. W. Tel. Co. v. Pub. Serv. Comm., 262 U. S. 276, 288, 43 S. Ct. 544, 67 L. Ed. 981, 31 A. L. R. 807.

From the foregoing, it is evident that the state Supreme Court did not accord to the plaintiff in error that sort of judicial inquiry to which under the decisions of this court it was entitled. Bluefield Co. v. Pub. Serv. Comm., supra, page 689 (43 S. Ct. 675); Ohio Valley Co. v. Ben Avon Borough, 253 U. S. 287, 289, 40 S. Ct. 527, 64 L. Ed. 908.

Judgment reversed, and cause remanded for further action not inconsistent with this opinion.

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1. Courts 264 (3)-Federal court had no jurisdiction in receivership proceedings of intervention petition of defendants' customer against defendant and bank in possession of funds claimed.

The federal court, in receivership proceedings against stockbrokers, did not have jurisdiction to entertain intervention petition filed by customer who had given brokers check for purchase of stock, deposited by brokers in bank without purchase of stock and applied by bank on brokers' prior indebtedness to bank, to require bank to pay receivers amount of check for payment by receivers to intervener, since such petition was not dependent or ancillary, but for intervener's sole interest.

2. Courts 264(1)-General rule as to federal court's right to entertain dependent or ancillary controversies by intervention stated.

Generally a District Court, which has properly acquired jurisdiction over a cause, may entertain, by intervention, dependent or ancillary controversies; but a controversy, to be dependent or ancillary within such rule, must have direct relation to property or assets actually or constructively drawn into the court's possession or control by the principal suit.

3. Courts 314-National bank deemed citizen of state in which located for jurisdictional purposes.

Under Judicial Code, § 24, subd. 16 (Comp. St. § 991), national bank, for jurisdictional purposes, is deemed resident of state in which it is located.

On Writ of Certiorari to the United States Circuit Court of Appeals for the Fifth Circuit.

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

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