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Crawford road improvement district by a spe- The state court held that the provision in cial act. Pursuant to its provisions the com- section 25 for payment of preliminary exmissioners named therein took the *proceed-termination that the cost of the preliminary penses necessarily implied a legislative deings incident to organizing the district. They expenses would not exceed the anticipated determined what work would be required, es- benefits of the construction of the improvetimated the cost thereof, and had the prelim- ment; that this legislative determination is inary assessment made of the benefits and conclusive unless shown to be arbitrary and burdens. In so doing the commissioners nec-unreasonable; that nothing was shown to essarily incurred expenses for publication of overcome the legislative determination exnotices, for the services of engineers, law-cept the unapproved assessment lists filed by yers, and assessors, and for other matters. the board of assessors; that the assessment After the required data had been obtained, it was concluded that the cost of the proposed improvement would probably exceed the benefits, and the project was duly abandoned. The aggregate preliminary expense was $20,611.80. vided:

was incomplete because it was never approved by the board of commissioners; and that, since the abandonment of the project relieved them from the duty of considering its correctness, the court cannot know what the The special act had pro-assessment against the railroad would have been, had the assessment of benefits been proceeded with. The lower court held, therefore, that the tax laid was not obnoxious either to the state Constitution or to that of

"Sec. 25. In case, for any reason, the improvement contemplated by this district is not made, the preliminary expense shall be a first lien upon all of the land in the district, and shall be paid by a levy of a tax thereon upon the assessed value for county and state taxation, which levy shall be made by the chancery court of Crawford county and shall be collected by a receiver to be appointed by the court."

the United States.

*190

[1, 2] *So far as concerns the federal Constitution, the validity of the tax may be rested, also, on other grounds. A state may defray the cost of constructing a highway, in whole or in part, by means of a special assessment upon property specially benefited thereby.

But it is not obliged to do so. Road building is a public purpose which may The cost be effected by general taxation. may be defrayed out of state funds, or a tax district may be created to meet the authorized outlay. The preliminary inquiry whether it is desirable to construct the road, is one in which all landowners within the district are interested. The Fourteenth Amendment does not require that taxes laid for this

For the purpose of paying the preliminary expense the commissioners applied to the appropriate court for a tax levy. A decree was entered for a levy of 1.65 per cent. on the assessed value of the land in the district subject to taxation. Thereupon the Missouri Pacific Railroad Company brought, in the same court, this suit to restrain enforcement of the decree. The aggregate assessed value of property within the district was $1,453,938. The assessed value of the Missouri Pacific property was $145,250. The tax assessed against its property to defray the prelim-purpose shall be according to the benefits to inary expense was $2,396.62. The board of

*189

assessors appointed under the special act estimated the amount of the anticipated benefit at $1,960. The sole objection of the railroad was that the tax to defray the preliminary expense was distributed in proportion to the assessed value of the property, instead of in proportion to the amount of the benefit thereto which it was estimated would accrue if the improvement was made. It argued that the smaller sum would, under both the state and the federal Constitution, have been the limit of its assessment for the improvement if carried out; that it could not be taxed more for the preliminary expense of a projected improvement which had been abandoned; and that, therefore, section 25 violated the due process clause of the Fourteenth Amendment. The Supreme Court of Arkansas sustained the decree for a levy as originally entered. 157 Ark. 304, 248 S. W. 563. That judgment is here on writ of error.

1 The St. Louis-San Francisco Railway Company joined as coplaintiff. Its situation, being in all

respects like that of the Missouri Pacific, does not require discussion.

be received by the person or thing taxed. Compare Kelly v. Pittsburg, 104 U. S. 78, 26 L. Ed. 658. The cost of making the investigation may be met by a fixed charge per acre, as in Houck v. Little River Drainage District, 239 U. S. 254, 36 S. Ct. 58, 60 L. Ed. 266, and Miller & Lux v. Sacramento & San Joaquin Drainage District, 256 U. S. 129, 41 S. Ct. 404, 65 L. Ed. 859, or by distributing the cost over all the land in the district in proportion to its value as assessed for county and state taxation, or otherwise. The fact that the money to be raised by this tax will be applied toward defraying the expenses of an abandoned road project, and not to the cost of a road wholly or partly completed, is obviously immaterial. Houck v. Little River District, supra, p. 265.

[3] There is here no suggestion of that flagrant abuse or purely arbitrary exercise of the taxing power against which the federal Constitution affords protection. Valley Farms Co. v. Westchester, 261 U. S. 155, 163, 43 S. Ct. 261, 67 L. Ed. 585; Thomas v. Kansas City Southern Ry. Co.. 261 U. S. 481, 483, 43 S. Ct. 440, 67 L. Ed. 758.

Affirmed.

(266 U. S. 147)

(45 S.Ct.)

DAVIS, Agent, v. KENNEDY. (Argued Oct. 17, 1924. Decided Nov. 17, 1924.)

No. 85.

Master and servant 228 (1) -No recovery for death of engineer in control of train for failure of other members of crew to look out for colliding train.

Where train crew's instructions were never to pass certain station unless they knew that train going in other direction had passed that point, where double tracks stopped and single track began, and engineer had been asked by conductor to look out for such train, but nevertheless passed such point, resulting in collision and his death, no recovery could be had for his death, because other members of crew were bound also to look out for approaching train, and their negligence contributed as proximate cause, under Employers' Liability Act April 22, 1908, § 1 (Comp. St. § 8657).

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

of the State on the ground that the other members of the crew as well as the engineer were bound to look out for the approaching train and that their negligence contributed as a proximate cause to the en. gineer's death. We are of opinion that this was error. It was the personal duty of the engineer positively to ascertain whether the other train had passed. His duty was primary as he had physical control of No. 4, and was managing its course. It seems to us a perversion of the statute to allow his representative to recover for an in*jury directly due to his failure to act as required on the ground that possibly it might have been prevented if those in secondary relation to the movement had done more. Frese v. Chicago, Burlington & Quincy R. R. Co., 263 U. S. 1, 3, 44 S. Ct. 1, 68 L. Ed. 131. Judgment reversed.

*149

(266 U. S. 185) ERIE R. CO. v. KIRKENDALL.

No. 51.

Action by Mary Kennedy, administratrix (Argued Oct. 8, 1924. Decided Nov. 17, 1924.) of the estate of David Kennedy, deceased, against James C. Davis, Agent. Judgment for plaintiff, and defendant brings certiora

ri. Reversed.

See, also, 263 U. S. 692, 44 S. Ct. 6, 68 L. Ed.

*148

Courts

3972, New, vol. 9A Key-No. Series -Where inducing petition in Supreme Court for certiorari failed to give adequate information concerning record and essential facts, writ must be dismissed.

Where inducing petition for certiorari in

*Mr. Fitzgerald Hall, of Nashville, Tenn., Supreme Court, directed to state Supreme for petitioner.

Messrs. W. E. Norvell, Jr., and F. M. Bass, both of Nashville, Tenn., for respondent.

Mr. Justice HOLMES delivered the opinion of the Court.

This is an action under the Employers' Liability Act of April 22, 1908, c. 149, § 1, 35 Stat. 65 (Comp. St. § 8657), brought by the administratrix of David Kennedy to recover damages for his death upon a railroad while under federal control. The death was caused by a collision between two trains called No. 1 and No. 4, west of a point known as Shops which was two and a half miles west of Nashville, Tennessee. The tracks were double from Nashville to Shops but after that the track was single. No. 1, bound for Nashville, had the right of way, and the crew of No. 4, bound westward, had instructions never to pass Shops unless they knew as a fact that No. 1 had passed it. Kennedy was the engineer of No. 4. The conductor had told him that the train was crowded and had asked him to look out for No. 1, which Kennedy agreed to do. He ran his train on beyond Shops however and the collision occurred.

The trial was in a Court of the State of Tennessee, and the plaintiff got a judgment which was sustained by the Supreme Court

Court, failed to give adequate information concerning record and essential facts, and tendered case radically different from one presented on argument, writ must be dismissed.

On Writ of Certiorari to the Court of ApState of Ohio. peals for the Eighth Judicial District of the

Action by Martin Kirkendall against the Erie Railroad Company. Judgment for plaintiff, and defendant brings certiorari. dismissed

Writ

Messrs. Benjamin D. Holt and Edward A. Foote, both of Cleveland, Ohio, for petitioner.

Messrs. D. K. Henderson and E. P. Chamberlin, both of Cleveland, Ohio, for respondent.

Mr. Justice McREYNOLDS delivered the opinion of the Court.

Respondent sued for the value of a lost package described by the bill of lading as "one box bedding," weighing 280 pounds, which actually contained "miscellaneous household articles, together with two quilts and two pair woolen blankets." In defense the railroad insisted that he misrepresented the true character of the contents and thereby prevented it from obtaining a released valuation which, according to the rate paid

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 45 S.CT.-3

and provisions of the published tariffs, would | 2. Appeal and error —909(1)—On writ of ernot have exceeded $28.

The writ must be dismissed. The inducing petition failed to give adequate information *186

concerning the record *and essential facts. Furness, Withy & Co. v. Yang-Tsze Insurance Asso., 242 U. S. 430, 37 S. Ct. 141, 61 L. Ed. 409; Layne & Bowler Corp. v. Western Well Works, 261 U. S. 387, 43 S. Ct. 422, 67 L. Ed. 712; Southern Power Co. v. North Carolina Public Service Co., 263 U. S. 508, 44 S. Ct. 164, 68 L. Ed. 413. The confused state of the record renders it difficult to ascertain the facts; maybe impossible. The petition for certiorari seemed to represent that at time of shipment the consignor accepted a bill of lading misdescribing the contents of the package and accepted a rate based upon limited liability, as he must have known.

It appears, however, that the shipper correctly reported the contents to the railroad. that he was not asked concerning value and made no representations relative thereto, that no rate was quoted, and that the undisclosed charges were to be collected at destination. The bill of lading contained no statement of value or rate and no provision restricting the carrier's liability to less than the actual worth. Section 8 provides:

"The owner or consignee shall pay the freight and all other lawful charges accruing on said property, and, if required, shall pay the same before delivery. If upon inspection it is ascertained that the articles shipped are not those described in this bill of lading, the freight charges must be paid upon the articles actually shipped."

See New York Central R. Co. v. Goldberg, 250 U. S. 85, 87, 39 S. Ct. 402, 63 L. Ed. 857. The case tendered by the petition is radically different from the one presented upon the argument.

(266 U. S. 127)

AVENT v. UNITED STATES.

ror to review conviction under Transportation Act, Supreme Court will presume existence of emergency.

On writ of error from Supreme Court to review conviction for violation of Interstate Commerce Commission's order prescribing preferences for shipments of coal under TransPortation Act 1920, tit. 4, § 402 (15), being Comp. St. Ann. Supp. 1923, § 8563 (15), the Supreme Court must assume that an emergency contemplated by the statute existed as found by the Commission and alleged in the indictment.

3. Constitutional law 62, 297—United States 5-Transportation Act and order for preference in coal shipments held valid.

Transportation Act 1920, tit. 4, § 402 (15), being Comp. St. Ann. Supp. 1923, § 8563 (15), authorizing the Interstate Commerce Commission in case of emergency to make reasonable rules as to car service, and an order of the Interstate Commerce Commission thereunder prescribing a preference in the order of purposes for which coal should be carried, are not invalid under the Fifth Amendment, and the statute does not trench on powers reserved to the state, and are not invalid as a delegation of legislative power. 4. Commerce

85-Interstate Commerce Commission's priority orders during emergencies must be reasonable.

Under Transportation Act 1920, tit. 4, § 402 (15), being Comp. St. Ann. Supp. 1923, § 8563 (15), authorizing the Interstate Commerce Commission in times of emergency to give preference or priority in transportation or movement of traffic, the power of the Commission is restricted to emergencies, and the only requirement is that the rules shall be reasonable and in the interest of the public and of commerce. 5. Commerce

5-Congress may make viola

tion of Interstate Commerce Commission's orders a crime.

The provision of Transportation Act 1920, tit. 4, § 402 (15), being Comp. St. Ann. Supp. 1923, § 8563 (15), making the violation of the Interstate Commerce Commission's emergency priority orders punishable as a crime, held valid.

(Argued Oct. 9, 1924. Decided Nov. 17, 1924.) 6. Constitutional law 42-One violating In

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Jurisdiction of Supreme Court to review judgment of District Court depends on presence of some substantial constitutional question, and a conviction for violation of priority order of Interstate Commerce Commission under Transportation Act 1920, tit. 4, § 402 (15), being Comp. St. Ann. Supp. 1923, § 8563 (15), cannot be taken to the Supreme Court on writ of error, all constitutional questions having been resolved in favor of the validity of the statute by previous decisions.

terstate Commerce Commission's priority order cannot urge its invalidity as preferring ports of one state to those of another.

One convicted of violation of Interstate

Commerce Commission's order under Transportation Act (Comp. St. Ann. Supp. 1923, § 100714 et seq.) for preference in movement of traffic cannot urge that order was invalid as granting preference to ports of one state over those of another, such matter being of no concern to him.

In Error to the District Court of the United States for the Southern District of Ohio.

Edward P. Avent, Jr., was convicted of fraudulently inducing interstate carriers to transport coal, in violation of Interstate

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

(45 S. Ct.)

Commerce Commission's order under Trans-, the presence of some substantial constituportation Act 1920, title 4, § 402 (15), and he tional question. But so far as such quesprosecutes error. Case transferred to Cir- tions are raised we are of opinion that they cuit Court of Appeals. are not substantial in view of previous de

Mr. Frank E. Wood, of Cincinnati, Ohio, cisions. We must take it that an emergency for plaintiff in error.

*129

contemplated by the statute existed, as found by the Commission and alleged in the indict

*Mr. Blackburn Esterline, of Washington, ment. That in such circumstances Congress D. C., for the United States.

Mr. Justice HOLMES delivered the opin

ion of the Court.

Transportation Act 1920 (Act Feb. 28, 1920, c. 91) title 4, § 402 (15), 41 Stat. 456, 474, 476 (Comp. St. Ann. Supp. 1923, § 8563 [15]), authorizes the Interstate Commerce Commission, whenever it is of opinion that shortage of equipment, congestion of traffic or other emergency requiring immediate action exists in any section of the country, to suspend its rules as to car service and to make such reasonable rules with regard to it as in the Commission's opinion will best promote the service in the interest of the public and the commerce of the people; and also, among other things, to give direction for preference or priority in transportation

or movement of traffic.

On July 25, 1922, the Interstate Commerce Commission, reciting that in the opinion of the Commission an emergency which required immediate action existed upon the railroad lines east of the Mississippi River, ordered that coal cars should be furnished to the mines according to a certain order of purposes numbered in classes 1, 2, 3, 4 and 5, and that no coal embraced in classes 1, 2, 3 or 4 should be subject to reconsignment or diversion except for some purpose in the same or a superior class. The making of gas falls in Class 2; the making of Portland Cement into Class 5.

*130

was indicted for

The plaintiff in error fraudulently inducing interstate carriers to transport coal seemingly intended to be used to make gas but actually intended to be used to make Portland Cement in violation of the Commission's order. A demurrer to this indictment was overruled and the plaintiff in error pleaded guilty and *was sentenced to a fine. Subsequently he moved in arrest of judgment upon the grounds that the order and the statute if it authorized the order were unconstitutional, as depriving him of due process of law, and as exercising a power reserved to the States; and also that the order granted a preference to the ports of one State over those of another. The motion was overruled and a writ of error was taken direct to this Court.

[1-6] The right to come here depends upon

could require a preference in the order of purposes for which coal should be carried, consistently with the Fifth Amendment is clear, and is assumed in Peoria & Pekin Union Ry. Co. v. United States, 263 U. S. 528, 532, 44 S. Ct. 194, 68 L. Ed. 427. See also Wilson v. New, 243 U. S. 332, 37 S. Ct. 298, 61 L. Ed. 755, L. R. A. 1917E, 938, Ann. Cas. 1918A, 1024; Fort Smith & Western R. R. Co. v. Mills, 253 U. S. 206, 207, 40 S. Ct. 526, 64 L. Ed. 862; Pennsylvania R. R. Co. v. Puritan Coal Mining Co., 237 U. S. 121, 133, 35 S. Ct. 484, 59 L. Ed. 867. That it can do so without trenching upon the powers reserved to the States seems to us not to need argument. That it can give the powers here given to the Commission, if that question is open here, no longer admits of dispute.

Interstate Commerce Commission v. Illinois Central R. R. Co., 215 U. S. 452, 30 S. Ct. 155, 54 L. Ed. 280; United States V. Grimaud, 220 U. S. 506, 31 S. Ct. 480, 55 L. Ed. 563; Pennsylvania R. R. Co. v. Puritan Coal Mining Co., 237 U. S. 121, 133, 35 S. Ct. 484, 59 L. Ed. 867. The statute confines the power of the Commission to emergencies and the requirement that the rules shall be reasonable and in the interest of the public and of commerce fixes the only standard that is practicable or needed. Union Bridge Co. v. United States, 204 U. S. 364, 27 S. Ct. 367, 51 L. Ed. 523; Nash v. United States, 229 U. S. 373, 376, 377, 33 S.

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Ct. 780, 57 L. Ed. 1232; Intermountain *Rate Cases, 234 U. S. 476, 486, 34 S. Ct. 986, 58 L. Ed. 1408; Mutual Film Co. v. Industrial Commission of Ohio, 236 U. S. 230, 246, 35 S. Ct. 387, 59 L. Ed. 552, Ann. Cas. 1916C, 296. Congress may make violation of the Commission's rules a crime. United States v. Grimaud, 220 U. S. 506, 31 S. Ct. 480, 55 L. Ed. 563. The alleged preference of ports if there is anything in the objection does not concern the plaintiff in error. As there is no substance in the grounds for the appeal to this Court and as other matters are urged the case must be transferred to the Circuit Court of Appeals. United Surety Co. v. American Fruit Product Co., 238 U. S. 140, 35 S. Ct. 828, 59 L. Ed. 1238; Act of September 14, 1922, c. 305; 42 Stat. 837 (Comp. St. Ann. Supp. 1923, § 1215a).

Transferred to Circuit Court of Appeals.

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Courts 3972, New, vol. 9A Key-No. Series
-Record must disclose that federal question
was raised in state court to give United States
Supreme Court jurisdiction of writ of certio-ed
rari.

On writ of certiorari in United States Supreme Court directed to state Supreme Court, record must disclose that federal question was raised in state court.

Appeal from Court of Claims.

Action by the Ferries Company against the United States. Judgment for the UnitStates (57 Ct. Cl. 616), and plaintiff appeals. Affirmed.

*261

*Messrs. W. R. L. Taylor and Hugh W. Davis, both of Norfolk, Va., for appellant. Mr. Alfred A. Wheat, of New York City,

On Writ of Certiorari to the Supreme for the United States. Court of the State of Arkansas.

Action by R. L. Hanna against the Missouri Pacific Railroad Company. Judgment for plaintiff (157 Ark. 32, 247 S. W. 1044), and defendant brings certiorari. Writ dismissed.

Messrs. Thomas B. Pryor, of Ft. Smith, Ark., and Edward J. White, of St. Louis, Mo., for petitioner.

Mr. Justice BUTLER delivered the opinion of the Court.

The city of Portsmouth and the county of Norfolk, Va., made a lease of the Norfolk Ferries, operating between Portsmouth, Norfolk, and Berkeley, for a term of ten years, beginning April 1, 1999, to plaintiff's assignor. The properties consisted of boats, their equipment, wharves, and other property used for All the propthe operation of the ferries. erty turned over to the lessee, except land, was taken by the lessee upon the inventory Mr. Justice McREYNOLDS delivered the and valuation thereof made by a board of opinion of the Court.

Mr. Arthur L. Adams, of Jonesboro, Ark., for respondent.

When this writ was granted, we, of course, supposed petitioner had properly raised and relied upon the indicated federal question in the courts below by claiming that its responsibility for injuries sustained by respondent while traveling on an interstate drover's pass depended upon acts of Congress and applicable principles of common law as interpreted and applied by the federal courts. Southern Express Co. v. Byers, 240 U. S. 612, 614, 36 S. Ct. 410, 60 L. Ed. 825, L. R. A. 1917A, 197.

The record fails to disclose that it definitely raised the point in either trial or Supreme Court. On the contrary, it was there insisted that liability should be determined under the laws of Illinois, the state wherein the accident occurred.

The writ is accordingly dismissed.

appraisers selected under a prior lease then about to expire. It was agreed that at the termination of the lease the property so accepted, including any boats which might be purchased or built by the lessee for the oper

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Under date of October 8, 1918, the lessors, the plaintiff and the United States (acting by the Bureau of Industrial Housing and Transportation of the Department of Labor) made an agreement by which the United States took over the operation of the ferries. It was provided that the lease should terminate at the time of the turning over of the properties to the Bureau and that "the appraisal provided for in said lease (Argued Oct. 8, 1924. Decided Nov. 17, 1924.) shall take place as of the time that the fer

(266 U. S. 260)

FERRIES CO. v. UNITED STATES.

No. 46.

Ferries 15-Under agreement of lessor of ferries to pay difference between value of equipment at time of execution of lease and termination, lessee held entitled only to difference according to pre-war prices.

* *

ries shall be taken over by the Bureau, instead of at the regular termination of the said lease, as therein provided, and said appraisal shall be made in the same manner as if the said lease had regularly terminated at the date that the said ferries are taken over by the Bureau. years, and lessor agreed to pay lessee differ- agreed that if, as a result of the appraisal, ence between value of equipment at beginning plaintiff was found to be entitled to any and at termination of lease, if value was great- money from the lessors, it should be paid by at termination, and in 1918 government the Bureau and charged to lessors, and that,

er

Where ferries were leased in 1909 for 10

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

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