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(46 S.Ct.)

paired."

This language was cited with approval in Illinois Central Railroad v. Illinois, supra, 445 (13 S. Ct. 110).

$420

ton v. Strong, 1 Black, 23, 31, 17 L. Ed. 29; be arbitrarily or capriciously destroyed or imRailroad Co. v. Schurmeier, 7 Wall. 272, 289, 19 L. Ed. 74; Yates v. Milwaukee, 10 Wall. 497, 504, 19 L. Ed. 984; Transportation Co. v. Parkersburg, 107 U. S. 691, 699, 2 S. Ct. 732, 27 L. Ed. 584; St. Louis v. Rutz, 138 U. S. 226, 246, 11 S. Ct. 337, 34 L. Ed. 941; Illinois Central Railroad v. Illinois, 146 U. S. 387, 445, 13 S. Ct. 110, 36 L. Ed. 1018; Weems Steamboat Co. v. Peoples' Co., 214 U. S. 345, 355, 29 S. Ct. 661, 53 L. Ed. 1024, 16 Ann. Cas. 1222; United States v. ChandlerDunbar Co., 229 U. S. 53, 70, 33 S. Ct. 667, 57 L. Ed. 1063. There is no limitation upon this right of a riparian owner in the laws of Michigan. On the contrary it was recognized in Lorman v. Benson, 8 Mich. 18, 25, 77 Am. Dec. 435, that the rights of riparian owners must be determined by the common law so far as applicable to the local situation; and in Ryan v. Brown, 18 Mich. 196, 210, 100 Am. Dec. 154, it was said that:

*Considering the charge of the court in the light of these general principles, we find that it was permeated by the fundamental error, emphasized by the refusal of the requests, that the jury were left to determine the amount of the benefits to be deducted on the theory that a riparian owner on the improved river would have merely such uncertain and contingent "privileges" of access to the navigable stream and of constructing docks fronting on the harbor line, as the Government, in the exercise of an absolute control over the navigation of the river, might see fit to allow him, instead of being instructed that he would have a right to such access and the construction and maintenance of such docks until taken away by the Govnot allowed upon our large *streams, the ship-control over navigation. And this error was ernment in the due exercise of its power of ping business would become practically worthless. It can never be unlawful for a land owner the more serious since the plan of the imto make such wharves and landings as will ac-provement contemplated that the improved commodate all vessels ordinarily using the stream, unless there are some exceptional circumstances, as narrows, bends, or the like, which may in particular cases render his structures improper."

"If wharves and similar conveniences were

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[7] This right of a riparian owner, it is true, is subordinate to the public right of navigation, and subject to the general rules and regulations imposed for the protection of such public right. And it is of no avail against the exercise of the absolute power of Congress over the improvement of navigable rivers, but must suffer the consequences of the improvement of navigation, if Congress determines that its continuance is detrimental to the public interest in the navigation of the river. United States v. Chandler-Dunbar Co., supra, 62, 70 (33 S. Ct. 667).

river should become a slip for docks and industries and recognized the right of a riparian owner to construct docks upon the harbor line; and there was nothing in the evidence indicating any probability that the Government would at any time abrogate or curtail this right in any respect.

The Circuit Court of Appeals, while stating that the trial court had over-emphasized the elements of uncertainty in the rights of riparian owners and the contingent character of these rights, was of opinion that, under all the circumstances, such over-emphasis was not sufficiently prejudicial to call for a reversal of the judgment. With this we cannot agree. The charge was not merely an over-emphasis of the contingent character of the rights of the riparian owners, but in [8] The right of the United States in the substance an instruction that they had no navigable waters within the several States rights in this respect, and could only obtain is, however, "limited to the control thereof uncertain privileges, as a matter of grace. for purposes of navigation." Port of Seattle There is an essential difference between a v. Oregon Railroad, 255 U. S. 56, 63, 41 S. substantial property right which may be enCt. 237, 239 (65 L. Ed. 500). And while Con-joyed until taken away in the appropriate gress, in the exercise of this power, may exercise of a paramount authority, and an adopt, in its judgment, any means having some positive relation to the control of navigation and not otherwise inconsistent with the Constitution, United States v. ChandlerDunbar Co., supra, 62 (33 S. Ct. 667), it may not arbitrarily destroy or impair the rights of riparian owners by legislation which has no real or substantial relation to the control of navigation or appropriateness to that end. In Yates v. Milwaukee, supra, 504, it was said in reference to the right of a riparian owner on a navigable stream:

"This riparian right is property, and is valuable, and, though it must be enjoyed in due subjection to the rights of the public, it cannot

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uncertain and *contingent privilege which may not be allowed at all. The failure to observe this distinction went to the root of the charge in reference to the deduction of benefits. And its natural, if not inevitable, effect, was to lead the jury to a lower estimate of the benefits than would have been made under a proper charge.

[9] The present case is not controlled by the provision of section 269 of the Judicial Code, as amended by the Act of February 26, 1919,5 that in an appellate proceeding judg

540 Stat. 1181, c. 48 (Comp. St. Ann. Supp. 1919, 1246).

7-Community income in California taxable wholly against husband, regardless of wife's interest therein.

ment shall be given after an examination of her husband, had a mere expectancy, and not a the entire record, "without regard to techni- genuine interest, in community property. cal errors, defects, or exceptions which do 3. Internal revenue not affect the substantial rights of the parties" We need not enter upon a discussion of the divergent views which have been cxpressed in various Circuit Courts of Appeals as to the effect of the Act of 1919. It suffices to say that since the passage of this Act, as well as before, an error which relates, not to merely formal or technical matters, but to the substantial rights of the parties-especially when embodied in the charge to a jury is to he held a ground for reversal, unless it appears from the whole record that it was harmless and did not prejudice the rights of the complaining party. See Yazoo Railroad v. Mullins, 249 U. S. 531, 533, 39

Under Revenue Act Feb. 24, 1919, §§ 210, 211 (Comp. St. Ann. Supp. 1919, §§ 6336%e, 6336% ee), income of community property may be taxed wholly against husband, regardless of whether wife has a genuine interest or a mere expectancy therein, in view of Civ. Code Cal. Ann. Supp. 1919, § 6336ii), and Regulations § 167, Revenue Act 1919, § 219 (Comp. St. 65 Relating to Income Tax under Revenue Act of 1924, arts. 31 and 341.

Mr. Justice Sutherland dissenting.

In Error to the District Court of the Unit

S. Ct. 368, 63 L. Ed. 754; Fillippon v. Albion ed States for the Northern District of Cali

Slate Co., 250 U. S. 76, 82, 39 S. Ct. 435, 63 L. Ed. 853. In the present case the error in the charge could not but mislead the jury in reference to a material element necessary for its consideration in determining the amounts of the awards; and it cannot be said from the whole record that the substantial rights of the United States were not prejudiced thereby. The judgments of the District Court should therefore have been reversed, and new trials granted.

3. It is unnecessary to set forth various errors assigned as to other rulings of the trial court. These matters were fully and carefully considered by the Circuit Court of *422

*Appeals, and we are entirely satisfied with the conclusions which it reached in reference to them.

The judgments of the District Court and Circuit Court of Appeals are reversed, and the cause is remanded to the District Court for further proceedings in accordance with this opinion.

Judgments reversed.

(269 U. S. 315)

fornia.

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This is a suit to recover $6,788.03 income tax for the year 1918, paid by R. D. Robbins, late of California. Mr. *Robbins was married and the income taxed came from community property in California, acquired before 1917, when some changes were made in the law, and from the earnings of Mr. Robbins. He was required by the Treasury Department to return and pay the tax upon the whole income, against the effort of Mr. and Mrs. Robbins to file returns each of one-half. The result was that he had to pay the amount sued

UNITED STATES v. ROBBINS et al. (Argued Dec. 7, 8, 1925. Decided Jan. 4, 1926.) for, above what would have had to be paid if

No. 493.

1. Courts 394 (1)-Supreme Court should follow view of courts of state in determining whether wife has genuine interest in income of community property.

In action involving question whether wife has a genuine interest or a mere expectancy in income of community property, it is duty of Supreme Court to follow view adopted by courts of state involved.

2. Husband and wife 265-In California, wife has mere expectancy, and not genuine interest, in community property.

In California, at least before adoption of later statutes in 1917, wife, while living with

his contention had been allowed. The District Court found the facts as agreed by the parties and upon them ruled that the plaintiffs, the executors of Robbins, were entitled to recover as matter of law. Robbins v. United States, 5 F.(2d) 690. A writ of error was taken by the United States, before the Act of February 13, 1925, c. 229, 43 Stat. 936, went into effect. Greenport Basin & Construction Co. v. United States, 260 U. S. 512, 514, 43 S. Ct. 183, 67 L. Ed. 370.

Elaborate argument was devoted to the question whether the interest of a wife in community property has the relatively substantial character in California that it has in some other States. That she has vested

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

(46 S.Ct.)

rights has been determined by this Court source and exists whether there is community with reference to some jurisdictions, War- property or not. That he may be taxed for burton v. White, 176 U. S. 484, 20 S. Ct. 404, such a fund seems to us to need no argu44 L. Ed. 555; Arnett v. Reade, 220 U. S. ment. The same and further considerations 311, 31 S. Ct. 425, 55 L. Ed. 477, 36 L. R. A. lead to the conclusion that it was intended (N. S.) 1040; and the Treasury Department to tax him for the whole. For not only has carried those rights to the point of allow-should he who has all the power bear the buring a division in the return of community income in other States where the community system prevails. Regulations 65 relating to the Income Tax under the Revenue Act of 1924, art. 31. Its adoption of a different rule for California was based, we presume, upon

the notion that in that State a wife had a

mere expectancy while the husband was alive. [1, 2] If on the whole this notion seems to us to be adopted by the California courts it is our duty to follow it, so far as material, even if contrary expressions should be found here or there in the books; and it is no concern of ours whether the prevailing decision is a legitimate descendant from its parent the Spanish law or otherwise. We can see no sufficient reason to doubt that the settled *327

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den, and not only is the *husband the most
obvious target for the shaft, but the fund
taxed, while liable to be taken for his debts,
is not liable to be taken for the wife's, Civil
Code, § 167, so that the remedy for her failure
to pay might be hard to find. The reasons
for holding him are at least as strong as
those for holding trustees in the cases where
they are liable under the law. Section 219
(Comp. St. Ann. Supp. 1919, § 6336ii). See
Regulations 65, art. 341.
Judgment reversed.

Mr. Justice SUTHERLAND dissents. Mr. Justice STONE took no part in the case.

(269 U. S. 354)

LIVE OAK WATER USERS' ASS'N et al. v.
RAILROAD COMMISSION OF STATE
OF CALIFORNIA et al.

opinion of the Supreme Court of California, at least with reference to the time before the later statutes, is that the wife had a mere expectancy while living with her husband. The latest decision that we have seen dealing directly with the matter explicitly takes that view, says that it is a rule of property that has been settled for more than 60 years, and (Argued Oct. 22, 1925. Decided Jan. 4, 1926.) shows that Arnett v. Reade, 220 U. S. 311, 31 S. Ct. 425, 55 L. Ed. 477, 36 L. R. A. (N. S.) 1040, would not be followed in that State. Roberts v. Wehmeyer, 191 Cal. 601, 611, 614, 218 P. 22. In so doing it accords with the intimations of earlier cases, and does no more

No. 73.

1. Courts 394 (1)-Essentials to jurisdiction
of Supreme Court to review judgment of
state court on writ of error stated.

Act Sept. 6, 1916 (Comp. St. § 1214), Supreme
Under Judicial Code, § 237, as amended by
Court has no jurisdiction to review by writ of
error judgment of state court, unless there be

than embody the commonly prevailing understanding with regard to California law as shown by commentators and the action of the Treasury Department, as well as by the dec-drawn in question the validity of a statute of, larations of the Court. McKay, Community or any authority exercised under, the state, beProperty, section xi, p. 44; 35 Harvard Law cause of repugnance to Constitution, treaties, Review, 47, 48; Treasury Regulations 65 Re- or laws of the United States. lating to the Income Tax under the Revenue

Act of 1924, art. 31; Rice v. McCarthy (Cal. 2. Courts 394 (3)-Order of Railroad ComApp.) 239 P. 56.

mission, fixing rates, treated as act of Legislature, on review by Supreme Court.

Court to review on writ of error judgment of In determining jurisdiction of Supreme state court sustaining order of Railroad Commission of that state fixing water rates, order of Commission must be treated as an act of the Legislature.

3. Courts 394 (1)-Essentials to jurisdiction of Supreme Court to review judgment of state court sustaining order of Railroad Commission stated.

[3] But the question before us is with regard to the power and intent of the Revenue Act of February 24, 1919, c. 18, title II, part II, §§ 210, 211, 40 Stat. 1057, 1062 (Comp. St. Ann. Supp. 1919, §§ 6336e, 6336% ee). Even if we are wrong as to the law of California and assume that the wife had an interest in the community income that Congress could tax if so minded, it does not follow that Congress could not tax the husband for the whole. Although restricted in the matter of gifts, etc., he alone has the disposition of the fund. He To give Supreme Court jurisdiction to remay spend it substantially as he chooses, and view, on writ of error, judgment of state court affirming order of Railroad Commission of that if he wastes it in debauchery the wife has no state fixing rates chargeable by water company, redress. See Garrozi v. Dastas, 204 U. S. 64, there must be something more than a claim of 27 S. Ct. 224, 51 L. Ed. 369. His liability for federal right; attack must be on validity of orhis wife's support comes from a different | der, and not merely on court's judgment. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

4. Courts
ciently show jurisdiction of Supreme Court to
review, by writ of error, judgment of state
court sustaining order of Railroad Commis-

398(1)-Record held to insuffi- | all contract customers yearly sums, reckoned
according to entire acreage.

sion.

April 26, 1922, the Commission granted another increase of rates, again giving lower ones to contract customers. Plaintiffs in er

In proceedings to review, by writ of error, judgment of state court affirming order of Rail-ror obtained from the court below a review road Commission fixing water rates, record held to insufficiently show that federal question was raised before Commission and state court, to give Supreme Court jurisdiction under Judicial Code, 237, as amended by Act Sept. 6, 1916 (Comp. St. § 1214).

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Mr. Justice McREYNOLDS delivered the opinion of the Court.

The Sutter-Butte Canal Company, a public service corporation of California, has long supplied water for irrigation in the Sacramento Valley. Before 1913 petitioners or their predecessors severally contracted with it for water to be used during long terms, on definitely described parcels of land, at prices based upon their total areas, at specified rates per acre, whether actually consumed or not. Payment of the stipulated sums was secured by liens on the entire tracts; rights so acquired were appurtenant to the land, and constituted a servitude upon the water. Other stipulations concerned lateral ditches,

*356

of this order. Their petition therefor asked: "That upon such review such order and decision of said Railroad Commission be annulled and set aside, in so far as the same makes provision for the collection of rates upon any acreage other than that upon which water may be desired by these petitioners."

That court first held the challenged order

produced unlawful inequalities between con

tract and noncontract customers, contrary to

the law of the state, and therefore should be set aside. 65 Cal. Dec. 69. Having granted a rehearing, it declared the inequalities were not unreasonable, and affirmed the order. 192 Cal. 132, 219 P. 65.

[1, 2] The cause is here upon writ of error. Considering the circumstances disclosed by the record, we have no jurisdiction, unless it affirmatively appears that in the court below there was duly drawn in question the validity of a statute of or an authority exercised under the state, because of repugnance to the Constitution, treaties, or laws of the United States. Judicial Code, § 237, as amended September 6, 1916 (Comp. St. § 1214). Under repeated rulings here, for jurisdictional purposes the order of the Commission must be treated as though an act of the Legislature. Lake Erie & West. R. R. Co. v. State Public Utilities Commission ex rel. Cameron, 249 U. S. 422, 424, 39 S. Ct. 345, 63 L. Ed. 684, and cases there cited.

*357

[3, 4] *The brief for plaintiffs in error declares:

"The plaintiffs in error maintain that by the judgment of the Supreme Court of California the obligations of their contracts have been impaired, that their property has been taken without due process of law, that they have been denied the equal protection of the laws, and that the California court has denied and re

nounced its power to protect the plaintiffs in error in their claims of rights, privileges, and immunities secured by the Constitution of the United States."

This statement shows no jurisdiction here under the writ of error, although it specifies a federal question justiciable by certiorari. Something more than a claim of federal right *Those who held these agreements are is necessary; the attack must be upon the referred to as contract customers. Other validity of the order, not merely upon the parties-noncontract customers were sup-court's judgment. plied and charged according to number of The brief further states that by the appli

etc.

acres actually irrigated from year to year.

cation to the Railroad Commission for reIn 1918 the Railroad Commission permitted hearing, and in the petition to the Supreme a general increase of rates, but gave contract Court of California for review, plaintiffs in customers somewhat lower ones than those error set up their federal claims. No citaprescribed for others. Thereafter the com- tions to the record accompany this statement, pany continued to demand and receive from as our rules require. Rule 25, 2 (c). A claim For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(46 S.Ct.)

merely presented to the Commission upon ap- "The contention that there was a federal plication for rehearing would not suffice to question raised below finds its only support in give us jurisdiction. It must have been def- the fact that there has been printed in the recinitely brought to the court's attention. Al- ord, as filed in this court, what purports to be though a copy of the request for rehearing presented to the Supreme Court of the state, in an extract from the closing brief of counsel addressed to the Commission is annexed to which such a federal question is discussed, and the petition to the Supreme Court, this peti- it is asserted orally at bar that in the oral artion made no claim under the federal Con- gument made in the Supreme Court of Calistitution with sufficient definiteness for us to fornia a claim under the federal Constitution say that the court's attention was challenged was presented. But manifestly the matters thereto. Neither opinion of the court shows referred to form no part of the record, and are that it considered or necessarily passed upon not adequate to create a federal question, when any such question. After the second opinion no such question was necessarily decided bea petition for rehearing dwelt much on fed-low, and the record does not disclose that such eral rights, but this was denied, without more, and is now without consequence. Rooker v. Fidelity Trust Co., 261 U. S. 114, 117, 43 S. Ct. 288, 67 L. Ed. 556.

Under the heading, "Authorities on Jurisdiction Relied on by Petitioners on Rehearing

358

(Addressed to the Chief Justice and Associate Justices of the Supreme Court of California)," there are printed in the record before us extracts from the written argument of counsel for the Water Users' Association and others, wherein this appears:

*359

issues were set up or claimed in any proper manner in the courts of the state."

the court below ruled only that the order of As we interpret its opinion and judgment, the Commission fixed rates to be charged, leaving all other questions subject to determination by the courts. Counsel for the Commission affirmed this interpretation, and at the bar agreed that judgment here might rest thereon. In printed argument he said:

"Except as to rates, the Commission did not attempt (in fact, expressly disclaimed any attempt) to change any of the provisions of these contracts, and the effect of this rate order, as a matter of law, on those other provisions was left by the Commission for determination by the courts as the occasion might arise."

Three rights of the petitioners under the Constitution of the United States are violated, unless the order be annulled: (1) The obligations of their contracts are impaired by a law passed after the contracts were made; (2) the impairment of their contracts makes their lands subject to a lien to which they never agreed, and requires of them payment for the use of water not served, hence their property is taken without due process of law; and (3) by reason of the impairment of their contracts they are classified as consumers upon no real distinction of the character of the service, and know as citizens of the United States they are denied the equal pro-firmed, and tection of the laws.

The decision below upon this point of local law is enough to support the judgment, and leaves no federal question open for our determination.

[5] In cases where the state court has decided a local question adequate to support its judgment, this court has sometimes afsometimes has dismissed, the writ of error. Murdock v. Memphis, 20 Wall. 590, 634-636, 22 L. Ed. 429; Eustis v. Bolles, 150 U. S. 361, 370, 14 S. Ct. 131, 37 L. Ed. 1111; Southern Pacific Co. v. Schuyler, 227 U. S. 601, 610, 33 S. Ct. 277, 57 L. Ed. 662, 43 L. R. A. (N. S.) 901; Howat v. Kansas, 258 U. S. 181, 42 S. Ct. 277, 66 L. Ed. 550;

In his brief here counsel for plaintiffs in error has not relied upon the foregoing as sufficient to show that the points there suggested were duly raised and presented to the court below, and we are not aware of any rule of practice in that court which permits such questions to be thus raised in a proceed-Browne v. Union Pacific, 267 U. S. 255, 45 ing upon certiorari.

In Zadig v. Baldwin, 166 U. S. 485, 488, 17 S. Ct. 639, 640 (41 L. Ed. 1087), here upon error to the Supreme Court of California, this court said:

S. Ct. 315, 69 L. Ed. 601. We have again considered the matter, and have concluded that, generally, at least, it is better practice to dismiss.

The writ of error must be dismissed.

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