*99 ment for anything un*less the suspension was accepted. Thereupon a complete settlement was made, and the amount agreed upon paid. There was a reservation in the settlement, which by no reasonable construction could include the claim here made. The claim was for profit for what might have been made in the 30 days. The Court of Claims held that the claim must fail by reason of the executed settlement and we affirm that judgment. Valuable time was taken in hearing these cases. After arguments on behalf of the claimants, we declined to hear the other side because the correctness of the judgments of the Court of Claims was clear. It is fortunate for all that, under the Act of February 13, 1925 (Comp. St. Supp. 1925, § 1172a), judgments of the Court of Claims entered after May 13, 1925, can only be reviewed here after a showing of merits. (271 U. S. 104) BOYD v. UNITED STATES. Mr. Sam E. Whitaker, of Chattanooga, Tenn., for petitioner. Mr. Assistant Attorney General Donovan, for the United States. Mr. Justice VAN DEVANTER delivered the opinion of the Court. This was a prosecution under Harrison Anti-Narcotic Act, c. 1, 38 Stat. 785, as amended by chapter 18, 40 Stat. 1130 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 6287g et seq.). The indictment contained thirteen counts. The defendant was acquitted on seven and convicted on six, and the conviction was affirmed by the Circuit Court of Appeals. 4 F.(2d) 1014. The case is here on writ of certiorari. *105 *In each of the six counts the defendant was described as a physician, registered as such under the act, and credited with paying the special tax required of physicians, and was charged with unlawfully dispensingthrough his written prescription—a stated quantity of morphine sulphate to a particular (Argued Dec. 1, 1925. Decided April 19, 1926.) person, in the absence of a written order No. 365. from the recipient on an authorized form, and not in the course of professional practice only, but to enable the recipient to obtain, as actually was done, possession of that quanti 1. Criminal law 822 (6), 1038 (1) Appar- In prosecution of physician for violation of Harrison Anti-Narcotic Act, as amended by Act Feb. 24, 1919 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 6287g et seq.), where court instructed that question determinative of defendant's guilt was whether prescriptions which he gave addicts in amounts in excess of what could be taken in single dose were given in good faith, the further statement that it was not admissible to issue prescriptions to a known addict "for amounts of morphine for a great number of doses, more than was sufficient for the necessity of any particular administration of it," though apparently ambiguous, held not ground for reversal, in view of remainder of charge and absence of objection at trial. 2. Criminal law 822 (1). Portion of charge must be taken in connection with what precedes and follows it. 3. Criminal law 1038 (1). A defendant permitting instruction to pass at trial as satisfactory is not in position to object to it in appellate court. On Writ of Certiorari to the United States Circuit Court of Appeals for the Sixth Circuit. A. W. Boyd was convicted of violating the Harrison Anti-Narcotic Act, and to review a judgment of the Circuit Court of Appeals (4) F.[2d] 1014), affirming his conviction, he brings certiorari. Judgment affirmed. of the drug contrary to law. The prescriptions as set forth were: To Annie Davis, an addict to the use of the drug for 21 years, 48 grains on August 2, 48 grains on August 9, and 40 grains on August 13, all in 1923; and to Frank O'Hara, an addict for 18 years, 30 grains on August 18, 30 grains on August 24, and 30 grains on August 30, all in 1923. On the trial the government proved and the defendant admitted that he was a physician, was registered under the act, and had paid the special tax required of a physician; that he issued the prescriptions without written orders from the recipients on an authorized form; that he intended the recipients should obtain the drug in the quantities specified from a local dealer; that they did so obtain it under the prescriptions; that they had been coming to the defendant for long periods, and he knew they were confirmed addicts, whose wills had come to be subservient to their acquired craving for the drug; that they were in a position after the prescriptions were filled where they could administer the drug to themselves according to their own inclinations, or dispose of it to others; and that each prescription was for a quantity greatly in excess of what would be appropriate for immediate administration. The disputed question was whether the defendant issued the prescriptions in good faith, in the course of his professional practice. On this point the evidence was con 106 *flicting. That for the government tended strongly to show that the prescriptions were For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (46 S. Ct.) for quantities many times in excess of what, | according to any fair medical standard, reasonably could be put into the possession of confirmed addicts, even when treating them for the addiction, or endeavoring to relieve them from suffering incident to it, and that the prescriptions could only have been issued to enable the recipients to indulge their acquired longing for the drug and its effects. Much of that for the defendant tended to show that he issued the prescriptions in good faith, in the course of professionally treating the recipients for their addiction, and endeavoring to relieve them from its incidents. But some of the evidence in his behalf was pronouncedly corroborative of that for the government. Thus the testimony of other physicians whom he called as witnesses, while tending to approve his asserted method of treatment, also tended to show that the prescriptions in question were grossly excessive and unreasonable, according to any fair medical standard; and his personal testimo ny contained contradictions and admissions tending materially to detract from his claim of good faith. Among other things, his testimony showed that he was both distributing and prescribing most unusual quantities of the drug; that he purchased and distributed over 15,000 grains from May 1 to September 30, 1923; and that he issued prescriptions on much the same scale during that period. There was much testimony that his professional and private character were good and widely respected. In its charge to the jury the court said that the determinative question was whether the defendant issued the prescriptions in good faith "as a physician to his patients in the course of his professional practice only"; that, if they were issued in good faith, "for the purpose of curing disease or relieving suffering," he should be acquitted; and that if, on the evidence, that question was left in *107 rea*sonable doubt, he should be given the benefit of the doubt and acquitted. There was more along this line, in the course of which the court said that it was admissible for the defendant in his professional practice to prescribe the drug either for "the curing of morphinism," or for "the relief of suffering from morphinism," if he did so in good faith, and that in determining the question of his good faith the jury should consider the quantity prescribed-whether it conformed to medical standards, and, if it was in excess of such standards, whether there was reason or occasion for the excess. Thus far the charge was in accord with what this court said in Linder v. United States, 45 S. Ct. 446, 268 U. S. 5, 69 L. Ed. 819, 39 A. L. R. 229, where prior decisions were reviewed and explained. [1, 2] Further on in the charge the court indicated that it was not admissible for the defendant to issue prescriptions to a known addict "for amounts of morphine for a great number of doses, more than was sufficient for the necessity of any one particular administration of it." Complaint is now made of this. It appears ambiguous, and, if not taken with the rest of the charge, might be regarded as meaning that it never is admissible for a physician, in treating an addict, to give him a prescription for a greater quantity than is reasonably appropriate for a single dose or administration. So understood, the statement would be plainly in conflict with what this court said in the Linder Case. But we think it could not well have been so understood in this instance. It did not stand alone, but was to be taken in connection with what preceded it, and also with what followed. At the conclusion of the charge counsel for the defendant made no objection and took no exception to it, but simply asked the court to add the following, which was done: in determining whether or not the defendant in "I am requested to say to you, gentlemen, that prescribing morphine to his patients was hon *108 [3] With that addition the charge elicited no criticism or objection from the defendant, although there was full opportunity therefor. It evidently was regarded as consistent and satisfactory. Besides, in view of what was said in other parts of the charge, we are justified in assuming that, had the court's attention been particularly drawn at the time to the part complained of now, it would have been put in better form. Certainly, after permitting it to pass as satisfactory then, the defendant is not now in a position to object to it. McDermott v. Severe, 26 S. Ct. 709, 202 U. S. 600, 610, 50 L. Ed. 1162; United States v. U. S. Fidelity Co., 35 S. Ct. 298, 236 U. S. 512, 529, 59 L. Ed. 696; Norfolk & Western Ry. Co. v. Earnest, 33 S. Ct. 654, 229 U. S. 114, 119, 120, 57 L. Ed. 1096, Ann. Cas. 1914C, 172. This disposes of the only contention made by the defendant in this court. Judgment affirmed. (271 U. S. 127) VENNER v. MICHIGAN CENT. R. CO. (Argued Jan. 28, 1926. 1. Courts 1926.) No. 190. 489(16)-Stockholders' suit to *129 was a necessary defendant and had not consented to be sued in a state court; and that the removal did not give the federal court jurisdiction, when the state court had none. A short description of the suit as displayed in the plaintiff's amended bill will suffice to show its nature. The plaintiff is a minority enjoin railroad from carrying out agreement stockholder of a railway company which for purchase of equipment, approved by In-owns and operates an interstate railroad, terstate Commerce Commission, held within and that company is the sole defendant. exclusive jurisdiction of federal court, the The purpose with which the suit is brought United States being a necessary party (In- is to enjoin the defendant company from terstate Commerce Act, § 20a, as added by carrying out an agreement with two othAct Feb. 28, 1920, § 439 [Comp. St. Ann. er railroad companies under which the Supp. 1923, § 8592a]; Judicial Code, §§ 208, 211 [Comp. St. §§ 997, 1004]; Act Oct. 22, three, collectively styled "New York Cen1913 [Comp. St. § 994]). tral Lines," are to acquire a large numStockholders' suit against railroad to en-ber of locomotives for use on their rejoin it from carrying out agreement with other lines for joint purchase of locomotives to be used under lease agreement, rentals being applied to payment of certificates issued to obtain purchase money, which purchase had been approved by Interstate Commerce Commission, under Interstate Commerce Act, § 20a, as add; ed by Act Feb. 28, 1920, § 439 (Comp. St. Ann. Supp. 1923, § 8592a), held essentially suit to annul and set aside order of Commission, to which the United States is necessary party, within exclusive jurisdiction of federal court, under Judicial Code, §§ 208, 211 (Comp. St. §§ 997, 1004), and Act Oct. 22, 1913 (Comp. St. § 994). Mr. Justice VAN DEVANTER delivered the opinion of the Court. spective roads in both interstate and intrastate commerce; are to obtain money to pay for this equipment by issuing certificates, payable at intervals during a period of 15. years, with semiannual dividend warrants representing interest; and are to covenant jointly and severally to pay rentals for the equipment sufficient to pay the certificates and dividend warrants as they mature. On application by the three companies pursuant to section 20a, the Interstate Commerce Commission, after notice and investigation, made an order approving the agreement and authorizing the acts contemplated therein. The order was made the day before the suit was begun. The plaintiff alleges in his amended bill that to issue the certificates and provide for their payment in the manner proposed will be in violation of the laws of the state wherein the defendant company was incorporated and of the other states into which its road extends, unless the approval of designated agencies of those states be secured; that such approval has not been and is not intended to be secured; and that the defendant company is relying on the order of the Interstate Commerce Commission, and is proceeding to carry out the agreement as approved by that order. He also alleges that the order, and the provisions of section 20a, under which it was made, transcend the limits of federal power, and encroach on the power of the states before named. The prayer is that the defendant company be enjoined from carrying out the agreement, notwithstanding its approval by the Interstate Commerce Commission under that section. The defendant challenged the court's jurisdiction by a motion to dismiss on the grounds before stated, and it was on consideration of that motion that the decree of dismissal was entered. The decree was entered and the This is an appeal from a decree of a federal District Court dismissing a suit for want of jurisdiction. The suit was begun in a state court, and then removed into the federal court, on the defendant's petition, by reason of the diverse citizenship of the parties. Want of jurisdiction was adjudged, because the court was of opinion that the suit was essentially one to annul or set aside an order of the Interstate Commerce Com- *present appeal was allowed prior to the mission made under section 20a of the Inter-change made in our appellate jurisdiction by state Commerce Act, as added by Act Feb. 28, the Act of February 13, 1925 (43 Stat. 936). 1920, c. 91, 41 Stat. 494, § 439 (Comp. St. Ann. By section 20a the Commission is empowSupp. 1923, § 8592a); that the United States ered to entertain an application by any car *130 (46 S.Ct.) rier by railroad engaged in interstate com- a single opinion with two distinct proceed. merce for authority to issue bonds or other ings. One was a suit to set aside an order evidences of indebtedness, or to asume obli- of the Commission, and was brought against gations or liabilities as a lessor or lessee, or the United States and a railroad company in as a guarantor or surety of another carrier, the proper federal District Court. The other and is further empowered, after notice to was a prior and related suit brought in a "the Governor of each state in which the ap- state court against the railroad company and plicant carrier operates," and on due investi- removed into another federal District Court gation, to grant or refuse such authority in before the order was made by the Commiswhole or in part, and thereafter, for good sion. Afterwards, when the order was made, cause shown, to make such supplemental or- its interpretation and operation were drawn ders in the premises as it may deem neces- in question in that suit. The question of jusary or appropriate. The section also pro- risdiction, with which we are concerned here, vides: was not raised there, and there is doubt that it could have been. "(7) The jurisdiction conferred upon the Commission by this section shall be exclusive and plenary, and a carrier may issue securities and assume obligations or liabilities in accordance with the provisions of this section without securing approval other than as specified herein." [1, 2] We agree with the court below that the suit is essentially one to annul or set aside the order of the Commission. While the amended bill does not expressly pray that the order be annulled or set aside, it does assail the validity of the order and pray that the defendant company be enjoined from doing what the order specifically authorizes, which is equivalent to asking that the order be adjudged invalid and set aside. Lambert Run Coal Co. v. Baltimore & Ohio R. R. Co., 42 S. Ct. 349, 258 U. S. 377, 380, 382, 66 L. Ed. 671. Such a suit must be brought against the United States as the representative of the public and may be brought only in a federal district court. Judicial Code, §§ 208, 211 (Comp. St. §§ 997, 1004); Act Oct. 22, 1913, c. 32, 38 Stat. 219 (Comp. St. § 994); Illinois Central R. R. Co. v. State Public Utilities Commission, 38 S. Ct. 170, 245 U. S. 493, 504-505, 62 L. Ed. 425; North Dakota v. Chicago & Northwestern Ry. Co., 42 S. Ct. 170, 257 U. S. 485, 487, 66 L. Ed. 329; Texas *131 v. Interstate Com*merce Commission, 42 S. Ct. 261, 258 U. S. 158, 164, 66 L. Ed. 531; Lambert Run Coal Co. v. Baltimore & Ohio R. R. Appeal from the District Court of the United States for the Middle District of Alabama. Suit by the Mobile Gas Company against Andrew G. Patterson and others. From a decree for plaintiff (293 F. 208), defendants appeal. Decree modified, and, as modified, affirmed. Messrs. Hugh White and Harwell G. Da Co., supra. That the order is not mandatory, vis, both of Montgomery, Ala., for appellants. but permissive, makes no difference in this regard. Chicago Junction Case, 44 S. Ct. 317, 264 U. S. 258, 263, 68 L. Ed. 667. And, as the state court was without jurisdiction, the federal court acquired none by the removal. Lambert Run Coal Co. v. Baltimore & Ohio R. R. Co., supra. The plaintiff cites Louisville & Nashville R. R. Co. v. Cook Brewing Co., 32 S. Ct. 189, 223 U. S. 70, 56 L. Ed. 355, and Texas v. Eastern Texas R. R. Co., 42 S. Ct. 281, 258 U. S 204, 66 L. Ed. 566, as showing jurisdiction below; but neither case is open to such an interpretation. In the first no order of the Commission was involved either directly or indirectly. In the second this court dealt in Mr. Harry T. Smith, of Mobile, Ala., for appellee. rious miscarriage of *justice, we have exam For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ined the pleadings, the master's report, the by its order of July 24, 1922, is confiscatory opinions and the decrees. In the circum- and void, and further that the Mobile Gas stances we think the proper course is to modi- Company is entitled to earn a net profit of fy and then to affirm the decree of the court 8 per cent. per annum upon $2,007,520.68, below. consisting of $1,969,565, which was established as the permanent basic valuation of the plaintiff's property as of December 31, 1921, and $37,955.68, which covers additions to property from December 31, 1921, to December 31, 1922, and that in ascertaining said net profit the plaintiff must be allowed a depreciation reserve of 2%1⁄2 per cent. upon the value of the property, and a further credit of $25,000, amortized over a period of five years, on account of the expenses incurred in resisting the enforcement of said confiscatory tariff of rates, and also to a further credit of $27,025.77, amortized over a period of five years, being losses imposed upon the plaintiff between August 12, 1920, and November 1, 1920, by reason of the refusal of the Alabama Public Service Commission to permit the operation of a schedule of rates filed by the plaintiff on August 12, 1920. By an original bill of August 14, 1922, the gas company asked that members of the Alabama Public Service Commission be restrained from attempting to enforce a rate schedule which it alleged was confiscatory. A supplemental bill, filed April 18, 1923, after referring to the original bill and proceedings thereunder, among other things, alleged That, as provided by the Act of the Alabama Legislature approved October 1, 1920 (Gen. Acts 1920 [Sp. Sess.] p. 38) the commission ascertained and declared the value of the company's property for rate-making purposes as of December 31, 1921, at the latter's request and expense. That this valuation was made under a valid contract with the state and she was obligated to accept it for rate-making purposes. That by an unconstitutional act approved February 13, 1923 (Gen. Acts 1923, p. 62), the Legislature undertook to authorize, and the commission intended to make, another valuation. That so to do would violate the contract which the state deliberately entered into and greatly injure the company. In addition to the relief originally asked the prayer was for a decree declaring the commission's valuation final for all rate-making purposes and the challenged act invalid. Also for an injunction restraining the commission from attempting to establish any new valuation for rate-making purposes. Upon application for an injunction under the supplemental bill the District Courtcomposed of two Circuit Judges and one District Judge-held (June 4, 1923) that no continuing contract between the state and the company resulted from the commission's action in respect of the first valuation and refused to enjoin the proposed revaluation. District Judge Clayton expressed another view. *134 *Later-October 31, 1923-the District Court, Judge Clayton only presiding, entered the following final decree: (1) That the value of the properties of the Mobile Gas Company as of December 31, 1921, has been definitely fixed for the future rate-making purpose by contract entered into by the state of Alabama, acting by and through the Alabama Public Service Commission, on the one part, and the Mobile Gas Company, on the other part, and that the defendants in this case and their successors in office are hereby forever enjoined from attempting to impair the obligations of this contract by failing or refusing to accept the said valuation as a permanent basic valuation as of December 31, 1921, for all future rate-making purposes. (2) Also that the tariff of rates established by the Alabama Public Service Commission, *135 *(3) That defendants Andrew G. Patterson, Fitzhugh Lee, and Frank P. Morgan, and their successors in office, as members of the Alabama Public Service Commission, be and and they are hereby forever enjoined from enforcing or attempting to enforce the said tariff of rates promulgated by the order of the Alabama Public Service Commission on July 24, 1922, or from establishing or attempting to enforce any other tariff of rates which is insufficient to produce a return of 8 per cent. per annum upon the then value of the plaintiff's properties used and useful in the public service, assuming as a basic valuation of said company's property on the 31st day of December, 1922, the sum of $2,007,520.68. The court reserves the power to modify said injunction at any time, when by reason of changed conditions any tariff of rates, the establishment and enforcement of which is hereby forbidden, may become com pensatory. (4) Also that the defendants, and their successors in office, are hereby forever enjoined from compelling or attempting to compel the plaintiff to submit its properties, books, documents, accounts, and vouchers to examination by the Alabama Public Service Commission, or its representatives, for the purpose of repudiating or in any wise impairing the valuation of the plaintiff's properties as of the 31st day of December, 1921, as a basic valuation for future rate-making purposes. (5) Also that a writ of permanent injunction issue from this court in accordance with this decree. (6) The exceptions to the report of the special master are hereby overruled, and the said report is hereby approved and confirmed. To that portion of this decree which adjudged the rate schedule, prescribed by the commission's order of July 24, 1922, confiscatory, and enjoined any attempt to enforce |