We hold therefore that the Secretary exceeded his authority in imposing a restriction as to how the money should be invested or deposited after it was paid to the guardian.

such manner as appeared to him advisable. without enlarging or narrowing any clause A bill to that effect was introduced but not by construction. passed. Instead, section 4 as set forth above was enacted. It evidently is designed to be comprehensive of payments to members of every class; to distinguish between such adults as have certificates of competency and such as are without them, and also between adults and minors; to cover all payments to legal guardians, whether on behalf of incompetent adults or minors, and all payments to parents on behalf of minor children; to limit the amounts to be paid where a limit is deemed advisable; and to authorize and require the investment of the excess in designated securities or time deposits. Unlike the provision that was proposed and rejected, the section is intended in itself to limit the amounts to be paid, in so far as they are to be limited, and to prescribe the manner of investing the excess. Thus it directly determines the questions which the rejected provision was intended to commit to the judgment of the Secretary.

The obviously mistaken use of the words "to pay" and "to invest" in some of the clauses instead of "shall cause to be paid" and "shall invest," or their equivalents, does not introduce any uncertainty into the section or affect its meaning. The sense is made plain by the context.

[1] In our opinion the section must be taken as making it the plain duty of the Secretary to cause the several payments of income to be made in the amounts and at the times specified, and to invest the excess, where there is such, in prescribed securities, or to deposit it in prescribed banks, for the benefit of those to whom it is owing. The investment clause obviously refers to the mon169

eys which *are withheld, not to those which are paid. Where the payment is to a guardian, the county court alone is empowered to direct and control the investment of what is paid. This is apparent when the section is read, as it should be, with section 3 of the act of 1912, before quoted. Under the latter the Secretary may invoke action by the county court in respect of any matter affecting the Indian ward's estate, and, where he does he is entitled as of right to a full consideration of the matter presented; but he can exercise no direct control over the use or investment of the money after it is paid to the guardian.

The defendant relies on the clause requiring all payments to guardians and adults without certificates of competency to be made "under the supervision" of the superintendent of the Osage Agency; but we think this clause is not intended to cut down or narrow the others and that it refers to a supervision designed to effectuate the payments specifically directed by other clauses, and gives no warrant for imposing conditions at variance with such directions. There is ample room for supervision, and also need of it,

For the purposes of these payments the section assigns the members of three major classes. The first comprises all adults having certificates of competency, the second all adults who are without such certificates, and the third all minors. The directions for payment take up the classes in that order. As to the first the direction is that the member be paid his full share of the income. Whatever is due is to be paid. As to the other classes the directions begin with the qualifying words "so long as the income is sufficient" and then proceed to require *that speamount is $500 for each member, whether cific amounts be paid. As to the third class the the payment is to his parents or to his guard

*170

ian. As to the second class the direction, apart from the qualifying words just noticed, is "to pay to the adult members of said tribe not having a certificate of competency $1,000 quarterly, except where adult members have legal guardians, in which case the income of such incompetents shall be paid to their legal guardians."

[2] In his answer the defendant took the position that this provision, while limiting each payment to $1,000 out of the member's share where he is without a guardian, requires that the full share be paid where he has a guardian. Afterwards the defendant changed his position and came to insist that the limit of $1,000 applies where the member has a guardian as well as where he is without one. The courts below acceded to the first position. But we are of opinion that the later insistence is right. The directions as a whole show that the personal capacity of the member is made the test of whether his full share of the income shall be paid, or only a limited amount deemed sufficient for his current needs. If he is an adult and has a certificate of competency showing he is fully capable of managing his own affairs the full share is to be paid; otherwise only a limited sum-$1,000 where he is an adult and $500 where he is a minor. The clause saying. "except where incompetent adult members have legal guardians, in which case the income of such incompetents shall be paid to their legal guardians," is not an independent direction, but merely an excepting clause showing that the income which under the principal provision would be payable to the ward is to go to the guardian. In this respect it puts guardians of members who are in the second class on the same plane that the next provision puts guardians of members who are in the third class. In both cases the

171

guardian is to receive what would *go to the ward if he were not under guardianship, and

(45 S.Ct.) This is what naturally would be expected, and we think it is what the statute intends.

(Argued Oct. 13 and 14, 1924. Decided Nov. dustry sidings-most of the plants with only

Interstate Commerce Act, § 3, as originally the plant the car must move for a short disenacted (Comp. St. § 8565), providing that pro-tance over the line of another carrier-all hibition of discrimination between connecting carriers in respect to facilities for interchange of traffic, rates, and charges should not be construed as requiring carrier to give use of its tracks or terminal facilities to another carrier, was intended to make clear that mere grant to one carrier of use of such facilities and their refusal to another does not make preference illegal.

ment between these companies, each is permitted to, and does, pass over the road of the other with its own locomotives and attached cars in order to make deliveries to and accept shipments from plants located on spurs directly connected only with the road of the other carrier. Industries within the zone thus get the same advantage over those without it which would flow from an agreement for reciprocal free-switching or for absorption of the *switching charges

*

*197

which was limited to their traffic. The Com-
mission found that, "from the standpoint of
carriage, the situation of industries inside
and outside the zone is substantially simi-
lar," and that the described practice "sub-
jects shippers
without the zone to
undue prejudice and disadvantage."2 The
only substantial questions for decision is
whether the advantage enjoyed by these 17
plants, although found, as a fact, to result
in undue prejudice, must be held, as a mat-
ter of law, to be a lawful preference, because
of the means by which the advantage is ef-
fected.

The argument most strongly urged is this: In the absence of an appropriate order carriers are not obliged to extend or curtail their facilities; or to submit to enlarged use of their terminals. The arrangement by which the Pennsylvania and the Western Maryland extend, each to the other, the use of their tracks to effect terminal receipt and delivery of carload freight within the zone is a trackage agreement and is, in law, either a limited extension of the line of each carrier or an agreement for the limited common use by each carrier of terminal facilities of #198

der the powers conferred by section 1, par. 21, p. 478 (Comp. St. Ann. Supp. 1923, § 8563), or it might have ordered an enlargement of the common use of terminals under section 3, par. 4, p. 479 (Comp. St. Ann. Supp. 1923, § 8565); or it might have equalized rates and charges for plants within and without the zone by exercise of the power, conferred by section 15, pars. 3 and 4, pp. 485, 486 (Comp. St. Ann. Supp. 1923, § 8583), to establish through routes and joint rates. The grant of these specific powers indicates a purpose on the part of Congress to so restrict the Commission's general power to prevent unjust discrimination, prohibited by section 3, that a preference granted certain shippers served by a carrier by virtue of the ownership of tracks or trackage rights over other shippers not reached by the carrier,

because it does not own tracks or trackage rights which would enable it to reach them, cannot warrant a finding of undue discrimination; and that similarly the withholding or possession of trackage rights between carriers cannot, in law, constitute undue preference. In support of this argument, attention is called to the fact that, as originally enacted, section 3, after prohibiting discrimination as between connecting carriers in respect to facilities for interchange of traffic, rates nad charges, provides: "But this shall not be construed as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business." 24 Stat. 380 (Comp. St. § 8565).

*199

[1] *The argument is, in our opinion, unsound. There is nothing in the Act to Regthe other. To accord to plants without the ulate Commerce, as originally enacted, or in zone the same service which, under the ar- Transportation Act 1920, or in any earlier rangement, is enjoyed by those within the amendment, which indicates a purpose on the zone would involve either a further exten- part of Congress either to allow a carrier to sion of the tracks of each carrier or an en- create undue prejudice by the use of facililargement of the common use of their termi-ties possessed, or to narrow the Commission's nal facilities. Under the Interstate Com- powers to prevent unjust discrimination. merce Act, as amended by Transportation The clause quoted was doubtless inserted in Act, c. 91, 41 Stat. 456, the Commission section 3 to make clear that the mere grant might, upon proper findings and conditions, to one carrier of the use of tracks or termihave ordered such extension of tracks, un-nal facilities for the purpose of interchanging traffic and the refusal of such facilities The order declared that the "Commission having found in said report that the practice of the Penn- to another, does not make the preference sylvania Railroad Company and the Western Mary- given illegal. The clause had no other effect. land Railway Company of extending the use of their In this respect, it resembles the provision tracks to each other for the purpose of terminal re- contained in section 22 (Comp. St. § 8595), ceipt and delivery of freight at industries in York within a zone described in the report, while refusing concerning free service or reduced rates to to extend the use of their tracks for the purpose of the federal, state and municipal governdelivering or receiving freight at other industries ments. similarly located but without the zone, under sub

stantially similar circumstances and conditions, is subjecting various shippers and industries to undue prejudice: It is ordered that said defendants be required to cease and desist * from

practicing the undue prejudice.

There is a faint contention that the order is invalid, also, because it is not in terms limited to interstate commerce. That it should be construed as not applying to intrastate commerce is clear. Compare Texas v. Eastern Texas R. R. Co., 258 U. S. 204, 42 S. Ct. 281, 66 L. Ed. 566.

Nashville, Chattanooga & St. Louis Ry. v. Tennessee, 262 U. S. 318, 43 S. Ct. 583, 67 L. Ed. 999.

[2, 3] The Commission has found, not merely that the facilities in question were granted to some and refused to other, but that the grant and refusal have, by reason

The clause was stricken out by the amendment of the section made in Transportation Act 1920, 41 Stat. 479.

(45 S.Ct.)

*109

of the use made and intended to be made of Libel in admiralty by James Shewan & the facilities, resulted in undue prejudice. Sons, Inc., against the United States. DeIt is true that an extension of trackage cree for the United States, and plaintiff aprights, an enlarged common use of terminals, peals. Reversed. or the establishment of through routes and joint rates, or the withdrawal of any of them, could not be ordered except upon the findings and conditions prescribed in the act. But the order complained of does not require any such thing. It requires only that the carriers shall desist from a practice which involves such use as has resulted and

will result in the undue prejudice found.
The order leaves them free to remove the
discrimination by any appropriate action.
American Express Co. v. Caldwell, 244 U. S.
617, 624, 37 S. Ct. 656, 61 L. Ed. 1352; Unit-
ed States v. Illinois Central R. R. Co., 263
U. S. 515, 521, 44 S. Ct. 189, 68 L. Ed. 417.

To accomplish this, it is not necessary that
the Pennsylvania should grant to the other
carriers the extensive use of the terminal
*200
facilities and tracks *which was sought, and
which the Commission found was not shown
to be in the public interest. Compare Penn-
sylvania Co. v. United States. 236 U. S. 351,
368. 35 S. Ct. 370, 59 L. Ed. 616; Louisville
& Nashville R. R. Co. v. United States, 238
U. S. 1, 20, 35 S. Ct. 696, 59 L. Ed. 1177. The
situation in this case is unlike that which
was presented in Louisville & Nashville R.
R. Co. v. United States, 242 U. S. 60, 37 S.
Ct. 61, 61 L. Ed. 152.
Reversed.

(266 U. S. 108)

JAMES SHEWAN & SONS, Inc., v. UNITED
STATES.

*Messrs. George V. A. McCloskey, of New York City, and C. C. Calhoun, of Washington, | D. C., for appellant.

Mr. J. Frank Staley, of Washington, D. C., for the United States.

Mr. Chief Justice TAFT delivered the opinion of the Court.

James Shewan & Sons, a corporation of New York, on the 12th day of May, 1922, filed a libel in admiralty against the United

States in the District Court for the South-
ern District of New York, to recover the
value of repairs made during the month of
The
May, 1920, on the steamship Biran.
libel averred that the Biran was owned by
the United States and at all the times men-
tioned was engaged in the mercantile trade,
that the lien upon the vessel was one which
ordinarily could be enforced in admiralty
by proceeding in rem against the vessel.

The jurisdiction to sue the United States was questioned by exceptive allegations. It was agreed at the hearing that on the 11th day of June, 1921, the steamship Biran, which had theretofore been in the merchant service of the United States, was laid up in the care and custody of caretakers employed by the United States. Shipping Board, in the out of use and laid-up fleet of that Board anchored in the Hudson river within the District, and so remained at and after the time when the libel was filed herein, and that since June 11, 1921, it had carried neither crew nor cargo, nor been the subject of any

*110

(Argued Oct. 6, 1924. Decided Nov. 17, 1924.) operating *agreement for use in the merchant

or other service, nor had it been transferred by the Shipping Board to any other department or agency of the government. The libelant relied for its right to sue the United States upon the Suits in Admiralty Act (Act March 9, 1920, c. 95, 41 Stat. 525 [Comp. St. Ann. Supp. 1923, '§§ 12514 to 12517]). That act provides in its first section, with an exception not important here, that no vessel owned by the United States or by any cor

Under Suits in Admiralty Act (Act March 9, 1920 [Comp. St. Ann. Supp. 1923, $$ 12511⁄4-125141]) in view of Act 1916, § 9 (Comp. St. Ann. Supp. 1919, § 8146e), libel in personam will lie for repairs to vessel of Unit-poration in which the United States owns the ed States engaged in merchant service, though shortly after repairs vessel was laid up in custody of caretakers employed by Shipping Board in out of use and laid-up fleet.

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

The proceeding before the Commission, which was instituted by the Manufacturers' Association of York, sought an order requiring the three railroads (a) to interchange at York all traffic originating in or des

tined to that city; (b) to permit common use by all

the carriers of all terminal facilities at York, including the main line tracks for a reasonable distance outside the terminals; and (c) to establish reciprocal switching throughout the city.

capital stock, or in the possession of the United States or of such corporation, or operated by or for the United States or such corporation, shall hereafter, in view of the provision made elsewhere in the act for a libel in personam, be subject to arrest or seizure by judicial process in the United States.

The second section is in part:

"That in cases where if such vessel were privately owned or operated, or if such cargo were privately owned and possessed, a proceeding in admiralty could be maintained at the time of the commencement of the action herein provided for, a libel in personam may be

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

brought against the United States or against | brought and the vessel was to be seized, but such corporation, as the case may be, provided upon her character as one solely engaged in that such vessel is employed as a merchant merchant service when the transaction ocvessel or is a tug boat operated by such corcurred out of which the liability grew. poration." *112

The section further provides that such suit shall be brought in the district where the party suing resides or has its principal place of business, or in which the vessel or cargo charged with liability is found.

The District Court, following Mack Engineering & Supply Co. v. United States (D. C.) 291 F. 713, dismissed the case solely for lack of jurisdiction, because the vessel whose repairs are the subject of this suit was laid up, and was not, when the action commenced, employed as a merchant vessel, and the judge has so certified in this proceeding in error under section 238 of the Judicial Code (Comp. St. § 1215).

We think this view is based on too narrow a construction of the section. It leads

*111

*In view of the purpose of Congress in the act of 1920 merely to substitute an action in rem for an action in personam, the natural construction would be one which, ceteris paribus, would measure the extent of the right to sue the United States in personam by that which had been granted in the act of 1916 to sue in rem its offending or responsible vessel. The date of natural importance in fixing the liability in rem would seem to be that of the event out of which the liability grew. The date of the suit would be important only in the application of a statute of limitation or a change in character of the vessel from that of a merchant vessel to public vessel, or possibly some kind of a change in ownership or the happening of some other circumstance after the event which would exempt the offending vessel if privately owned from seizure under the rules of admiralty law. It is in respect of such changes in the situation before suit that the phrase "in cases where if such vessel were privately owned * a proceeding in admiralty could be maintained at the time of the commencement of the action herein provided," is used, and it does not qualify or in any way add to the force of the subsequent and final proviso "that such vessel is employed as a merchant vessel or is a tug boat operated by such corporation."

What, then, does the proviso mean? Are the words to be construed as if they read "is being actively employed as a merchant vessel"? Such a construction is a narrow one, and not in accord with the equitable purpose of Congress. The important line

to the result that one who repairs a merchant vessel owned by the United States is excluded from the benefit of the act if, immediately after the repairs are made, the United States shall lay her up, although still a merchant vessel in character and without change of her to any other service. If a vessel engaged in the service as a merchant vessel negligently collides with and injures another vessel, and then at once is laid up before suit is brought under this act, the owner of the vessel injured under such construction will have no cause of action against the United States for the injury. This act was enacted chiefly for the purpose of relieving the United States from obstruction to its commercial traffic by the seizure of merchant vessels owned by it or under its control, and was intended to substitute an equiv-between immunity from judicial seizure of alent remedy against the United States in personam for the right in rem against the vessel, which the act of 1916 (Comp St. Ann. Supp. 1919, § 8146E) had permitted. Blamberg Bros. v. United States, 260 U. S. 452 458, 459, 43 S. Ct. 179, 67 L. Ed. 346. We do not find anything in the act of 1916 which would prevent its liberal construction to enable one who had repaired a vessel engaged solely as a merchant vessel for the United States from proceeding against that vessel in rem under the act of 1916, even though after the repairs had been made upon her as a commercial vessel, she was subsequently laid up, if she had not then acquired character as a public vessel. So we do not think that the decision in The Lake Monroe Case, 250 U. S. 246, 39 S. Ct. 460, 63 L. Ed. 962. would have been different had she thus been laid up after she had injured the libelant's vessel in that case. Obviously under the act of 1916, liability to suit of a vessel owned or controlled by the United States as a merchant vessel depended primarily not upon the time when the suit was to be

government vessels under the act of 1916 was between public vessels and those engaged in merchant service. The mere laying up of a vessel engaged in the latter service would not change its character, unless the government did something affirmative to make it a public vessel. It would have been

*113

an unjust result *to hold that under that act a mere suspension of the vessel's activity in merchant trade destroyed its quasi personal responsibility for its wrongs done or its liabilities incurred in that trade. In view of the relation of the act of 1920 to the act of 1916, unless the words of the proviso of section 2 of the act of 1920 make any other construction unreasonable, the mere laying up of the vessel before suit brought under the act should not prevent a libel in personam against the United States for a claim which under the act of 1916 might be enforced against the vessel itself. The words of the proviso may reasonably and more liberally be interpreted as a limitation that the vessel is a merchant vessel and shall