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(271 U. S. 691)

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(46 S. Ct.)

C., William J. Donovan, Asst. Atty. Gen., H. No. 1171. MARKET STREET RAILWAY B. Teegarden, Sp. Asst. Atty. Gen., and J. D. COMPANY, appellant, v. PACIFIC GAS & E. Meyer, U. S. Atty., of Charleston, S. C., ELECTRIC COMPANY and The Railroad Com- for the United States. mission of California et al. May 3, 1926. Appeal from the District Court of the United States for the Northern District of California. For opinion below, see 6 F. (2d) 633. Docketed and dismissed without costs on motion of Mr. Alexander T. Vogelsang in behalf of counsel.

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No. 66. John C. ROSS, plaintiff in error, v. The STATE OF SOUTH DAKOTA. May 10, 1926. In error to the Supreme Court of the State of South Dakota. For opinion below, see 197 N. W. 234. Messrs. U. S. G. Cherry and Holton Davenport, both of Sioux Falls, S. D., for plaintiff in error. Messrs. Buell F. Jones, Atty. Gen., E. D. Roberts, Asst. Atty. Gen., and Byron S. Payne, of Pierre, S. D., for the State of South Dakota.

PER CURIAM. Dismissed for want of jurisdiction upon the authority of section 237 of the Judicial Code as amended by the act of September 6, 1916, c. 448, § 2, 39 Stat. 726 (Comp. St. § 1214); Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5-6, 40 S. Ct. 255, 64 L. Ed. 421; (2) Farrell v. O'Brien, 199 U. S. 89, 100, 25 S. Ct. 727, 50 L. Ed. 101; Toop v. Ulysses Land Co., 237 U. S. 580, 583, 35 S. Ct. 739, 59 L. Ed. 1127; Piedmont Power & Light Co. v. Town of Graham, 253 U. S. 193. 195, 40 S. Ct. 453, 64 L. Ed. 855; Seaboard Air Line v. Padgett, 236 U. S. 668, 671, 35 S. Ct. 481, 59 L. Ed. 777; (3) Missouri v. Lewis, 101 U. S. 22, 31, 25 L. Ed. 989.

(271 U. S. 647)

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No. 302. C. A. P. TURNER COMPANY, appellant, v. The UNITED STATES. May 10, 1926. Appeal from the Court of Claims. For opinion below, see 59 Ct. Cl. 633. Mr. Benton Baker, of Bismarck, N. D., for appellant. Messrs. William D. Mitchell, Sol. Gen., of Washington, D. C., and Amasa C. Paul, Sp. Asst. Atty. Gen., for the United States.

PER CURIAM. Affirmed upon the authority of United States v. Smith, 94 U. S. 214, 218, 24 L. Ed. 115; Talbert v. United States, 155 U. S. 45, 15 S. Ct. 4, 39 L. Ed. 64; Stone v. United States, 164 U. S. 380, 382, 17 S. Ct. 71, 41 L. Ed. 477; United States v. Milliken Printing Co., 202 U. S. 173, 174, 26 S. Ct. 572, 50 L. Ed. 980; Keokuk & Hamilton Bridge Co. v. United States, 260 U. S. 125, 126, 43 S. Ct. 37, 67 L. Ed. 165.

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No. 304. William H. MAXWELL and Globe Indemnity Company, plaintiffs in error, v. The UNITED STATES of America. May 10, 1926. In error to the United States Circuit Court of Appeals for the Fourth Circuit. For opinion below, see 3 F. (2d) 906. Messrs. George A. King, of Washington, D. C., Christie Benet, of Columbia, S. C., and F. A. W. Ireland, of New York City, for plaintiffs in error. Messrs. William D. Mitchell, Sol. Gen., of Washington, D.

PER CURIAM. Affirmed upon the authority of The Harriman, 9 Wall. 161, 172, 19 L. Ed. 629; Jones v. United States, 96 U. S. 24, 29, 24 L. Ed. 644; Jacksonville, M. P. Ry. & Nav. Co. v. Hooper, 160 U. S. 514, 527, 16 S. Ct. 379, 40 L. Ed. 515; Globe Refining Co. v. Landa Cotton Oil Co., 190 U. S. 540, 543-544, 23 S. Ct. 754, 47 L. Ed. 1171; Carnegie Steel Co. v. United States, 240 U. S. 156, 164, 36 S. Ct. 342, 60 L. Ed. 576; Day v. United States, 245 U. S. 159, 161, 38 S. Ct. 57, 62 L. Ed. 219.

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(271 U. S. 647) No. 338. HAEUSSLER INVESTMENT COMPANY, plaintiff in error, v. Charles W. BATES: and

No. 481. FRUIN BAMBRICK CONSTRUCTION COMPANY, Third Street Realty & Investment Company. Compton Hill Improvement Company et al., plaintiffs in error, v. Charles W. BATES. May 10, 1926. In error to the Supreme Court of the State of Missouri. For opinion below, see 306 Mo. 392, 267 S. W. 632. Messrs. Charles R. Skinner, Lambert E. Walther, Joseph W. Lewis, and Charles M. Rice, all of St. Louis, Mo. (Messrs. John S. Leahy and Walter H. Saunders, both of St. Louis, Mo., of counsel), for plaintiff in error. Messrs. Bates, Williams & Baron, of St. Louis, Mo. (Mr. Charles W. Bates, of St. Louis, Mo., of counsel), for defendant in error.

PER CURIAM. Affirmed upon the authority of Withnell v. Ruecking Construction Co., 249 U. S. 63, 69, 39 S. Ct. 200, 63 L. Ed. 479; Hancock v. City of Muskogee, 250 U. S. 454, 456, 39 S. Ct. 528. 63 L. Ed. 1081; Goldsmith v. Prendergast Construction Co., 252 U. S. 12, 40 Co. v. Westchester County, 261 U. S. 155, 43 S. Ct. 273, 64 L. Ed. 427; (2) Valley Farms S. Ct. 261, 67 L. Ed. 585.

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No. 455. James SCOTT, plaintiff in error, v. MORRIS NATIONAL BANK OF MORRIS. May 10, 1926. In error to the Supreme Court of the State of Oklahoma. For opinion below see 109 Okl. 276, 235 P. 912. Mr. Lewis C. Lawson, of Holdenville, Okl., for plaintiff in error. Messrs. Edward J. McVann, of Washington, D. C., and Charles A. Dickson, of Okmulgee, Okl., for defendant in error.

PER CURIAM. Dismissed for want of jurisdiction upon the authority of section 237 of the Judicial Code as amended by the act of September 6, 1916, c. 448, § 2, 39 Stat. 726 (Comp. St. § 1214); Jett Bros. Distilling Company v. Carrollton, 252 U. S. 1, 5-6, 40 S. Ct. 255, 64 L. Ed. 421; (2) Missouri v. Andriano, 138 U. S. 496, 11 S. Ct. 385, 34 L. Ed. 1012; Rae v. Homestead Loan & Guaranty Company, 176 U. S. 121, 20 S. Ct. 341, 44 L. Ed. 398; Baker v. Baldwin, 187 U. S. 61, 23 S. Ct. 19, 47 L. Ed. 75.

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pany, Inc., and West Virginia Pulp and Paper | 1926. For opinion below, see 11 F. (2d) 591. Company, petitioners, v. James C. DAVIS, Director General of Railroads and Agent of the United States, et al. May 10, 1926. For opinion below, see 9 F. (2d) 911. Messrs. Arthur B. Hayes, of Washington, D. C., and Thomas D. McGlathery, of Philadelphia, Pa., for petitioners. Messrs. Sharswood Brinton, and John Hampton Barnes, both of Philadelphia, Pa., for respondents. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Third Circuit denied.

Mr. A. M. Belcher, of Charleston, W. Va., for petitioner. Mr. William D. Mitchell, Sol. Gen., of Washington, D. C., Mrs. Mabel Walker Willebrandt, Asst. Atty. Gen., and Mrs. Katharine Lloyd Campbell, of Washington, D. C., for the United States. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fourth Circuit denied.

(271 U. S. 674)

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(271 U. S. 675)

No. 1119. Ed ELMAN, F. Kecknie, A. Knutsen, and J. Tornberg, petitioners, v. O. A. MOLLER, Master of THE Steamship ROXEN,

May 10, 1926. For opinion below, see 11 F. (2d) 55. Mr. Jacob Louis Morewitz, of Newport News, Va. (Fayette B. Dow, of Washington, D. C., and Silas Blake Axtell, of New York City, of counsel), for petitioners. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fourth Circuit denied.

No. 1098. MOUNTAIN LUMBER COM-O. A. Moller, Rederiaktieb Transatlantic et al. PANY, The D'Auteuil Lumber Company, Ltd., and New York & Pennsylvania Company, petitioners, v. James C. DAVIS, Director General of Railroads and agent of the United States, and The Delaware and Hudson Company. May 10, 1926. For opinion below, see 11 F. (2d) 219. Messrs. Arthur B. Hayes, of Washington, D. C., and George E. Nelson, of New York City, for petitioners. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied.

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No. 1100. Frank OREB, petitioner, v. The UNITED STATES of America. May 10, 1926. For opinion below, see Smith v. United States, 9 F. (2d) 386. Messrs. Frank Oreb and Max Schleimer, both of Los Angeles, Cal., for petitioner. Mr. William D. Mitchell, Sol. Gen., of Washington, D. C., Mrs. Mabel Walker Willebrandt, Asst. Atty. Gen., and Mr. John B. Byrne, of Brooklyn, N. Y., for the United States. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit denied.

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No. 1114. The NIAGARA LAUNDRY LINEN SUPPLY COMPANY et al., petitioners, v. I. T. KAHN et al. May 10, 1926. For opinion below, see 10 F. (2d) 15. Messrs. Geo. B. Marty and Theo. C. Robinson, both of Cleveland, Ohio (Messrs. Chamberlin, Marty & Fuller and Holding, Duncan & Leckie, all of Cleveland, Ohio, of counsel), for petitioners. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied.

(271 U. S. 674)

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(271 U. S. 675)

No. 1120. KUSHNER & GILMAN, Inc., petitioner, V. MAYFLOWER WORSTED COMPANY. May 10, 1926. For opinion below, see 11 F.(2d) 462. Mr. Joseph G. M. Browne, of Brooklyn, N. Y., for petitioner. Messrs. William S. Hodges, of Washington, D. C., and Morton Collingwood, of Boston, Mass., for respondent. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia denied.

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No. 1122. Joe JOHNSON and Henry Pius. alias Hindlegs, petitioners, v. The UNITED STATES of America. May 10, 1926. For opinion below, see 11 F. (2d) 606. Mr. John S. Beard, of Pensacola, Fla., for petitioners. Mr. William D. Mitchell, Sol. Gen., of Washington, D. C., Mrs. Mabel Walker Willebrandt, Asst. Atty. Gen., and Mr. Bryon M. Coon, of Washington, D. C., for the United States. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied.

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No. 1123. NEW YORK DOCK COMPANY, petitioner, v. THE Lighter M. L. C. NO. 10, her tackle, etc., Marine Equipment Corporation, and Marine Lighterage Corporation et al. May 10, 1926, For opinion below, see 10 F. (2d) 699. Messrs. Joseph S. Auerbach and Harper A. Holt, both of New York City (Joseph S. Auerbach, Alexander J. Feild, and Harper A. Holt, all of New York City, of counsel), for petitioners. Mr. John L. Lotsch, of New York City, for respondents. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied.

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No. 1124. NEW YORK DOCK COMPANY, petitioner, v. THE Lighter LEVIATHAN, her No. 1118. Charley SIMPSON, petitioner, v. tackle, etc., The Atlantic Lighterage CorporaThe UNITED STATES of America. May 10,❘tion, et al. May 10, 1926. For opinion below,

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No. 1126. BUSH TERMINAL COMPANY, petitioner, v. The Lighter ALLAN, her tackle, etc., and Henry Gillen Sons Lighterage Company, Inc. May 10, 1926. For opinion below, see The M. L. C. No. 10, 10 F. (2d) 699. Messrs. Joseph S. Auerbach and Harper A. Holt, both of New York City (Alexander J. Feild, of New York City, of counsel), for petitioners. Mr. John L. Lotsch, of New York City, for respondent. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied.

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No. 1129. NG LUNG ex rel. LEW HUNG GET, petitioner, v. John P. JOHNSON, United States Commissioner of Immigration. May 10, 1926. For opinion below, see 8 F. (2d) 1020. Mr. Benjamin Dellheim, of Boston, Mass., for petitioner. Messrs. William D. Mitchell, Sol. Gen., of Washington, D. C., Oscar R. Luhring, Asst. Atty. Gen., and Harry S. Ridgely, of Washington, D. C., for respondent. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the First Circuit denied.

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No. original. Ex parte Edward F. BROWN. May 10, 1926. Motion for leave to file petition for mandamus to the District Court of the United States for the district of Massachusetts.

PER CURIAM. Application for leave to file petition for a writ of mandamus to compel Judge Peters of the District Court of the United States for the District of Massachusetts to allow a direct appeal to this court on a question of jurisdiction, the appeal having been applied for before the effective date of the act of February 13, 1925, 43 Stat. 936, denied upon the authority of Smith v. McKay, 161 U. S. 355, 358, 16 S. Ct. 490, 40 L. Ed. 731.

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(271 U. S. 315)

CULVER v. UNITED STATES.

his present assignment and duties" and that, on August 15. 1921, he report to the commandant, General Staff War College, for duty

(Submitted, per Twenty-Third Rule, April 12, as a student officer. Plaintiff complied, and 1926. Decided May 24, 1926.)

No. 816.

Army and navy 13(8)—Officer of air service, while detailed to General Staff War College, held not required to participate regularly and frequently in aerial flights, and not entitled to additional pay prior to presidential regulation (Army Reorganization Act June 4, 1920, § 13a, being Comp. St. Ann. Supp. 1923, § 1860a[1]).

Officer in air service, while detailed by Secretary of War to General Staff War College for duty as student officer, and not under command of Chief of Air Service (Army Regulations, par. 1575), held not required to participate regularly and frequently in aerial flights, and not entitled to additional pay provided for by Army Reorganization Act June 4, 1920, § 13a (Comp. St. Ann. Supp. 1923, § 1860a[1]) prior to the President's regulation of December 31, 1920 (Army Regulations, par. 12692).

remained on duty as a student officer from that date to June 30, 1922. While there he performed a number of flights in each month, 131 in all.

Paragraph 1575 of the Army Regulations charges the Chief of Air Service, under direction of the Secretary of War, with command of the Air Service, both staff and line, and with its management, including the regulation of the duties of officers and others who may be employed under his direction, excepting such persons as may be specifically detached by the order of the Secretary of War. December 2, 1920, a circular letter was issued by the Chief of Air Service to the commanding officers of all air stations. It was there stated that he considered that any officer holding a flying rating was on duty which required his participation in regular and frequent flights, no matter what the nature of that duty might be. December 31, 1921, after the controversy culminating in this suit

On Writ of Certiorari to the Court of arose, the President issued a regulation Claims.

Action by Clarence C. Culver against the United States. To review a judgment of the Court of Claims (60 Ct. Cl. 825), dismissing his petition, plaintiff brings certiorari. Judgment reversed.

Messrs. George A. King, Wm. Bruce King, and George R. Shields, all of Washington, D. C., for petitioner.

Mr. William D. Mitchell, Sol. Gen., of Washington, D. C., for the United States.

Mr. Justice BUTLER delivered the opinion of the Court.

Plaintiff brought this action to recover increase of pay from August 15, 1921, to June 30, 1922, under the Army Reorganization Act of June 4, 1920, § 13a, c. 227, 41 Stat. 759, 768 (Comp. St. Ann. Supp. 1923, § 1860a[1]). The Court of Claims made findings of fact, held him not entitled to recover and dismissed the

petition.

That section provided that officers and enlisted men of the army should receive an increase of 50 per centum of their pay while on duty requiring them to participate regularly and frequently in aerial flights. Plaintiff was a lieutenant colonel in the Air Service, and was rated as an airplane pilot. For

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some time prior to August 15, *1921, he was assigned to duty which required him to participate regularly and frequently in aerial flights, and up to that date he received the increase of pay allowed for that service. August 9, 1921, the Secretary of War issued a special order that plaintiff be relieved "from

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(paragraph 12692, Army Regulations) requiring all officers of the Air Service who are rated as pilots of airplanes or airships and on a duty status to participate regularly in aerial flights as pilots whenever flying facilities are

available.

The United States concedes that, after the taking effect of that regulation, plaintiff was on a duty status requiring him to participate regularly and frequently in flights, and that he was entitled to have the increase of pay given by the Act of June 4, 1920.

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*It remains to be considered whether he was entitled to the increase of pay from August 15 to December 31, 1921. The findings sufficiently show that he actually took frequent and regular flights during that period; but there is no finding that he was required to do so. Paragraph 1575 of the Army Regulations expressly excepts from the command of the Chief of the Air Service such persons as may be specifically detached by order of the Secretary of War. The plaintiff was so detached by the order of August 9, 1921. It follows that the circular letter of December 2, 1920, did not apply to him while on duty as a stu

dent officer at the General Staff War College. During that time he was not subject to the orders or regulations of the Chief of the Air Service; and undoubtedly that was the reason the President made the regulation of December 31, 1921.

The facts found are not sufficient to show that plaintiff was on duty requiring him to participate in the flights which he actually took prior to that regulation. It does not appear that he would have been subject to mili

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

(46 S. Ct.)

tary discipline if he had not taken the flights. In the absence of such finding he is not entitled to recover increase of pay for that period. But the regulation of December 31, 1921, did require him to take such flights, and -as conceded by the United States-he is entitled to recover such increase for the period between that date and June 30, 1922. Judgment reversed.

(271 U. S. 208)

BOOTH FISHERIES CO. et al. v. INDUS-
TRIAL COMMISSION OF WISCON-

SIN et al.

Messrs. Herman L. Ekern, of Madison, Wis., and Winfield W. Gilman, of Milwaukee, Wis., for defendant in error Industrial Commission of Wisconsin.

Mr. Lynn D. Jaseph, of Green Bay, Wis., for defendant in error McLaughlin.

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

This was a suit begun in the circuit court of Dane county, Wis., to review and set aside findings and award under the Wisconsin Workmen's Compensation Act of a death benefit in favor of Mary McLaughlin, as widow of William McLaughlin, against his employer, the Booth Fisheries Company, and

(Argued May 5, 1926. Decided May 24, 1926.) that company's surety, the Zurich General

No. 313.

Accident & Liability Company.

The petition avers that the Industrial Com1. Constitutional law 318-Master and serv-mission, in making the award, acted without ant 347-Wisconsin Workmen's Compensation Act, denying judicial review of question whether Industrial Commission's findings are against preponderance of testimony, does not violate Constitution (St. Wis. 1921, §§ 2394-3 to 2394-5, 2394-19; Const. U. S. Amend. 14).

Wisconsin Workmen's Compensation Act, being St. Wis. 1921, §§ 2394-1 et seq., 2394-19, denying to employer judicial review of question whether findings of Industrial Commission are against the preponderance of testimony, if there is any evidence to support them, is not violative of Const. U. S. Amend. 14, in view of sections 2394-3, 23944, and 2394-5, permitting employer to elect whether or not he will accept provisions of the act.

and in excess of its powers in finding that the personal injuries and death of William McLaughlin were proximately caused by accident, and not intentionally self-inflicted, and that this finding was contrary to the evidence and contrary to the law. The circuit court and the Supreme Court of the state held that the findings of fact by the commission were supported by evidence, and so were

conclusive.

[1] The only question raised on the appeal to the Supreme Court of Wisconsin was the constitutionality under the Fourteenth Amendment of the Workmen's Compensation Act of Wisconsin in its limitation of the judicial review of the findings of fact of the 2. Constitutional law 43(2) Employer, Industrial Commission to cases in which "the having elected to accept provisions of Wisconsin Workmen's Compensation Act and its findings of fact by the commission do not supbenefits, is estopped, and has waived right to port the order or award." Wisconsin Statassert unconstitutionality of particular sec-utes 1921, § 2394-19. This limitation has tion affecting his right to judicial review of been held by the state Supreme Court to Industrial Commission's findings (St. Wis. 1921, § 2394-19; Const. U. S. Amend. 14). Employer, having elected to accept provisions of Wisconsin Workmen's Compensation Act, being St. Wis. 1921, § 2394-1 et seq., with such benefits and immunities as it gives, is estopped to assert, and has waived right to assert, that section 2394-19, in so far as it denies him the right to a judicial review of question whether Industrial Commission's findings are against preponderance of testimony, is violative of Const. U. S. Amend. 14.

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mean that the findings of fact *made by the
are conclusive, if
Industrial Commission
there is any evidence to support them. North-
western Iron Co. v. Industrial Commission,
154 Wis. 97, 142 N. W. 271, L. R. A. 1916A,
366, Ann. Cas. 1915B, 877; Milwaukee v. In-
dustrial Commission, 160 Wis. 238, 151 N. W.
247;

Milwaukee C. & G. Co. v. Industrial
Commission, 160 Wis. 247, 151 N. W. 245;
William Rahr Sons Co. v. Industrial Com-
mission, 166 Wis. 28, 163 N. W. 169; Booth

In Error to the Supreme Court of the State Fisheries Co. v. Industrial Commission, 185

of Wisconsin.

Wis. 127, 200 N. W. 775. It follows that the court may not in its review weigh the eviSuit by the Booth Fisheries Company and dence or set aside the finding on the ground another against the Industrial Commission that it is against the preponderance of the of the State of Wisconsin and another. Judg-testimony. ment for defendants was affirmed by the It is argued that the employer in a suit Supreme Court of the State of Wisconsin for compensation under the act is entitled (185 Wis. 127, 200 N. W. 775), and plaintiffs under the Fourteenth Amendment to his bring error. Affirmed. day in court, and that he does not secure it unless he may submit to a court the ques

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*Mr. George A. Schneider, of Chicago, Ill., tion of the preponderance of the evidence on for plaintiffs in error. the issues raised.

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

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