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No. 628. Richard L. DAVEY, petitioner, v. DELAWARE, LACKAWANNA & WESTERN RAILROAD COMPANY and Lehigh Valley Railroad Company. Feb. 25, 1929. For opinion below, see 143 A. 313. Messrs. Dougal Herr, Julius Lichtenstein, and John H. Kelley, all of Hoboken, N. J., for petitioner. Messrs. G. Noyes Slayton, of New York City, and Reynier J. Wortendyke, Jr., of Jersey City, N. J., for respondents. Petition for writ of certiorari to the Court of Errors and Appeals of the State of New Jersey denied.

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No. 636. KAR-LAC COMPANY and Julius H. KARLSON, petitioners, v. The GILCHRIST COMPANY and Hamilton-Beach Manufacturing Company. Feb. 25, 1929. For opinion below, see 29 F. (2d) 153. Mr. Hervey S. Knight, of Chicago, Ill. (Mr. George L. Wilkinson, of Chicago, Ill., of counsel), for petitioners. Mr. Fred Gerlach, of Chicago, Ill., for respondents. Petition for writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit denied.

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No. 637. Joseph Frank MURPHY, petitioner, v. INDIA TIRE & RUBBER CO. Feb. 25, 1929. For opinion below, see 29 F. (2d) 228. Messrs. Wm. M. Pardue, of San Antonio, Tex. (Douglas, Carter & Black, of San Antonio, Tex., of counsel), for petitioner. Mr. John Davis, of Dallas, Tex. (Messrs. Davis & Hatchell, of Dallas, Tex., of counsel), for respondent. Petition for writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied.

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No. 639. FOREMAN TRUST & SAVINGS BANK, Administrator of the ESTATE OF Kazimir PROSCIEVICH, deceased, petitioner, v. GRAND TRUNK WESTERN RAILWAY COMPANY. Feb. 25, 1929. For opinion below, see 242 Ill. App. 428. Mr. H. H. Patterson, of Chicago, Ill., for petitioner. Messrs. Alfred E. McCordic, Charles Y. Freeman, and Louis L. Dent, all of Chicago, Ill., for respondent. Petition for writ of certiorari to the Appellate Court of the State of Illinois, First District, and/or Supreme Court of the State of Illinois

denied.

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(279 U. S. 839) No. 640. Walter S. DICKEY, petitioner, v. William VOLKER, J. C. Nichols, et al. Feb. 25, 1929. For opinion below, see 11 S.W.(2d) 278. Messrs. Maurice H. Winger, of Kansas City, Mo., J. T. Blair, of St. Louis, Mo., and Leland Hazard, of Kansas City, Mo. (Messrs. Winger, Reeder, Barker, Gumbiner & Hazard,

(49 S.Ct.)

of Kansas City, Mo., and Foristel, Mudd, Blair & Habenicht, of St. Louis, Mo., of counsel), for petitioner. Messrs. Henry L. McCune, John E. Wilson, Blatchford Downing, and Henry A. Bundschu, all of Kansas City, Mo., for respondents University Trustees. Messrs. Cyrus Crane, I. N. Watson, Samuel W. Sawyer, Henry N. Ess, and George O. Pratt, all of Kansas City, Mo., for respondent Kansas City Star Co. and individual respondents. Messrs. Mat. J. Holland, of St. Louis, Mo., and Stratton Shartel, Atty. Gen., in opposition to petition for certiorari. Petition for writ of certiorari to the Supreme Court of the State of Missouri denied.

(279 U. S. 839)

No. 641. John Arthur BOYD, Fred Nourse, et al., petitioners, v. The UNITED STATES of America. Feb. 25, 1929. For opinion below, see Newman v. U. S., 28 F. (2d) 681. Messrs. John F. Dore and Paul Carrigan, both of Seattle, Wash., for petitioners. Mr. William D. Mitchell, Sol. Gen., of Washington, D. C., Mrs. Mabel Walker Willebrandt, Asst. Atty. Gen., and Mr. Barham R. Gary, Sp. Asst. to Atty. Gen., for the United States. Petition for writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit denied.

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No. 643. S. C. FULLERTON and W. W. Dobson, petitioners, v. The EAGLE-PICHER LEAD COMPANY. Feb. 25, 1929. For opinion below, see 28 F. (2d) 472. Messrs. Ray McNaughton, of Miami, Okl., and Geo. S. Ramsey, of Tulsa, Okl., for petitioners. Messrs. A. E. Spencer, of Joplin, Mo., and A. C. Wallace, of Miami, Okl., for respondent. Petition for writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied.

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No. 644. George D. BROWN, sole surviving Administrator of the Estate of I. N. Brown, deceased, et al., petitioners, v. Joseph A. GAMBLE, Receiver of the First National Bank of Sutton, West Virginia; and

No. 680. P. S. PERKINS, I. C. Bishop, and O. O. Sutton, petitioners, v. Joseph A. GAMBLE, Receiver of the First National Bank of Sutton, West Virginia. Feb. 25, 1929. For opinion below, see 29 F. (2d) 366. Mr. W. E. Haymond, of Sutton, W. Va., for petitioners. Messrs. D. C. T. Davis, Jr., of Charleston, W. Va., Connor Hall, of Huntington, W. Va., for respondent. Petitions for writs of certiorari to the United States Circuit Court of Appeals for the Fourth Circuit denied.

(279 U. S. 834)

No. 645. George WILCOX, petitioner, v. The UNITED STATES of America. Feb. 25, 1929. For opinion below, see 29 F. (2d) 444. Mr. Cornelius H. Doherty, of Washington, D. C., for petitioner. On petition for writ of certiorari to the Court of Appeals of the District of Columbia.

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No. 646. COLONNA SHIPYARD, Inc., petitioner, v. J. F. DUNN. Feb. 25, 1929, For opinion below, see 145 S. E. 342. Mr. S. L. Sinnott, of Richmond, Va. (Messrs. Harvey D. Jacob and Robert F. Cogswell, both of Washington, D. C., and Thomas N. Bartlett, of Baltimore, Md., of counsel), for petitioner. Messrs. B. A. Banks, D. Arthur Kelsey, and R. Arthur Jett, all of Norfolk, Va., for respondent. Petition for writ of certiorari to the Special Court of Appeals of the State of West Virginia and/or the Supreme Court of Appeals of the State of Virginia denied.

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No. 651. FEDERAL SURETY COMPANY, petitioner, v. CITY OF STAUNTON, ILLINOIS, suing For the Use and Benefit of McWANE CAST IRON PIPE COMPANY. Feb.

Ala.

25, 1929. For opinion below, see 29 F. (2d) 9. Messrs. John London, George W. Yancey, and Walter Brower, all of Birmingham, (Messrs. London, Yancey & Brower and J. Kirkman Jackson, all of Birmingham, Ala., of counsel), for petitioner. Mr. E. H. Cabaniss, of Birmingham, Ala. (Messrs. Cabaniss, Johnston, Cocke & Cabaniss and Jelks H. Cabaniss, all of Birmingham, Ala., of counsel), for respondent. Petition for writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied.

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2nd, and Walter Biddle Saul, both of Philadelphia, Pa. (Mr. Joseph G. Denny, Jr., of Philadelphia, Pa., of counsel), for petitioner. Petition for writs of certiorari to the United States Circuit Court of Appeals for the Third Circuit denied.

(279 U. S. 840)

No. 657. Harry H. DELOSS, petitioner, v. COMMISSIONER OF INTERNAL REVENUE. Feb. 25, 1929. For opinion below, see 28 F. (2d) 803. Messrs. Chester I. Long, of Wichita, Kan., Jonathan Grout, of Bridgeport, Conn., and Peter Q. Nyce, Charles P. Swindler, and Samuel W. McIntosh, all of Washington, D. C., for petitioner. Mr. William D. Mitchell, Sol. Gen., of Washington, D. C., Mrs. Mabel Walker Willebrandt, Asst. Atty. Gen., Mr. Barham R. Gary, Sp. Asst. to Atty. Gen., and Messrs. C. M. Charest, Gen. Counsel of Bureau of Internal Revenue, and Allin H. Pierce, Sp. Atty., both of Washington, D. C., for the Commissioner of Internal Revenue. Petition for writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied.

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No. 660. Lewis G. NORTON, petitioner, v. The UNITED STATES of America. Feb. 25, 1929. See, also, 14 F. (2d) 184, 19 F. (2d) 836. Mr. Charles R. Pierce, of Miami, Fla., for petitioner. Messrs. William D. Mitchell, Sol. Gen., of Washington, D. C., B. M. Parmenter, Asst. Atty. Gen., and E. O. Patterson, Sol., Department of Interior, and E. T. Burke, both of Washington, D. C., for the United States. Petition for writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied.

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No. 671. Charles F. FIMAN, as Receiver of the National Bank of Commerce of Pierre, South Dakota, petitioner, v. The STATE OF SOUTH DAKOTA. Feb. 25, 1929. For opinions below, see 29 F. (2d) 776, which modified judgment in 29 F. (2d) 770. Messrs. Howard G. Fuller and Will G. Robinson, both of Pierre, S. D., for petitioner. Messrs. M. Q. Sharpe, Atty. Gen., and Ray F. Drewry, of Bison, S. D., and Benj. D. Mintener and E. D. Roberts, both of Pierre, S. D., for the State of South Dakota. Petition for writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied.

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No. 696. Elizabeth M. THOMAS, as Administratrix of the Estate of Oscar R. Thomas, deceased, petitioner, v. MAINE CENTRAL RAILROAD COMPANY. Feb. 25, 1929. For opinion below, see 144 A. 212. On petition for writ of certiorari to the Supreme Judicial Court of the State of Maine.

PER CURIAM. The motion for leave to proceed further herein in forma pauperis is denied for the reason that the Court, upon examination of the unprinted record herein submitted, finds that there is no basis for certiorari, application for which is therefore also denied.

The costs already incurred herein by direction of the Court, shall be paid by the Clerk from the Special Fund in his custody as provided in the order of October 29, 1926.

(279 U. S. 59)

FLINK v. PALADINI et al.

(49 S.Ct.)

gress, and the limitation was established by the Circuit Court of Appeals for the Ninth Circuit under R. S. § 4283 (Code, title 46, §

Submitted Feb. 21, 1929. Decided March 5, 183 [46 USCA § 183]), and the Act of June 26,

1. Shipping

1929.

No. 299.

205-Stockholders of corporation owning vessel held entitled to benefit of statute relating to limitation of individual liability of shipowners (46 USCA §§ 183, 189). Under 46 USCA §§ 183, 189, relative to limitation of individual liability of shipowners, such limitation may be had by persons owning stock in corporation which had title to vessel, as well as those owning shares in vessel directly.

2. Shipping 203-Words of statute relating to limitation of individual liability of shipowners must be taken in broad and popular sense (46 USCA §§ 183, 189).

Words of 46 USCA §§ 183, 189, relative to limitation of individual liability of shipowners, must be taken in broad and popular sense, in order not to defeat manifest intent of statute, which was to encourage investment by exempting investors from loss in excess of fund risked in enterprise.

On Writ of Certiorari to the United States Circuit Court of Appeals for the Ninth Circuit.

Petition by Attilio Paladini and others against Andrew Flink, for limitation of lia

bility as stockholders of a corporation owning a tugboat. An order vacating a stay order restraining further prosecution of the law actions against petitioners for injuries was reversed, with directions [26 F.(2d) 21], and Flink brings certiorari. Affirmed.

Messrs. H. W. Hutton and R. T. Lynch, both of San Francisco, Cal., for petitioner. *61

*Mr. Ira S. Lillick, of San Francisco, Cal., for respondents.

1884, c. 121, § 18, 23 Stat. 57 (Code, title 46, § 189 [46 USCA § 189]) 26 F.(2d) 21. These statutes, it will be remembered, provide for the limitation of the liability of shipowners to the value of the vessel and pending freight, and of part owners to their proportional share. The argument of the present petitioner is that the stockholders of A. Paladini, Inc., were not the owners of the Henrietta and that their liability under the law of California was an independent one voluntarily assumed by contract, with which the Acts of Congress do not interfere.

[1, 2] The Circuit Court of Appeals disposed of the case after a thorough discussion. It is unnecessary to do more than to make a short statement of the points. The purpose of the act of Congress was "to encourage investment by exempting the investor from loss in excess of the fund he is willing to risk in the enterprise." (C. C. A.) 26 F.(2d) 24; Richardson v. Harmon, 222 U. S. 96, 103, 32 S. Ct. 27, 56 L. Ed. 110; Hartford Accident & Indemnity Co. v. Southern Pacific Co., 273 U. S. 207, 214, 47 S. Ct. 357, 71 L. Ed. 612. For this purpose no rational distinction can be taken between several persons owning shares in a vessel directly and

making the same division by putting the title

in a corporation and distributing the corpo

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Mr. Justice HOLMES delivered the opin- members, a distinction that cannot be overion of the Court.

The petitioner suffered a severe injury on the high seas while employed as an engineer

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on the tugboat Henrietta, *belonging to A. Paladini, Incorporated, a corporation of the State of California. He sued the corporation and also the respondents, the stockholders of the same, seeking to hold the latter liable under the Constitution of the State, article 12, § 3, and the Civil Code, § 322, which provide that each stockholder shall be individually and personally liable for such proportion of all its debts and liabilities contracted during the time he was a stockholder, as the amount of stock owned by him bears to the whole of the subscribed capital stock. The respondents took proceedings in the District Court of the United States to limit their liability under the Acts of Con

looked even in extreme cases, Behn, Meyer & Co. v. Miller, 266 U. S. 457, 472, 45 S. Ct. 165, 69 L. Ed. 374, but to interpret an untechnical word in the liberal way in which we believe it to have been used-as has been done in other cases. International Stevedoring Co. v. Haverty, 272 U. S. 50, 47 S. Ct. 19, 71 L. Ed. 157.

The other branch of the petitioner's argument seems to us a perversion of the California law. The effect of that law so far as it goes is to destroy the operation of a charter as a nonconductor between the persons injured by a breach of corporate duty and the members of the corporation, who but for the charter would be liable. As suggested in Flash v. Conn, 109 U. S. 371, 3 S. Ct. 263, 27 L. Ed. 966, it leaves the members to a certain extent in the position of copartners. But that is the liability that the Acts of Congress mean

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

to limit. Having no doubt of the comprehensive purpose of Congress we should not be ingenious to construe the California statute in such a way as to raise questions whether it could be allowed to interfere with the uniformity which has been declared a dominant requirement for admiralty law. Decree affirmed.

(279 U. S. 813)

*814

a prior *statute (Act 140 of 1922) imposing a severance tax on the production of oil as a natural product of the soil. The prior act fixed the tax at three per cent. of the market value of the oil at the time and place of severance, and the amendatory act makes it a graduated tax ranging from 4 to 11 cents per barrel according to the gravity of the oil. As applied to the plaintiff's operations the tax fixed by the amendatory act is about $12,000 more in each period of three months than the tax under the prior act would be for the like

OHIO OIL CO. v. CONWAY, Supervisor of period. While admitting the validity of the Public Accounts, et al.

Argued Feb. 26, 1929. Decided March 5, 1929.

No. 514.

1. Injunction 136(3)-Interlocutory injunction is usually granted, if injury to moving party will be irreparable if application be denied.

Where questions presented by application for interlocutory injunction are grave, and injury to moving party will be certain and irreparable, if application be denied and final decree be in his favor, while, if injunction be granted injury to opposing party, even if final decree be in his favor, will be inconsiderable, or may be adequately indemnified by bond, injunction usually will be granted. 2. Injunction

136 (3)—Interlocutory injunction would be granted to restrain enforcement of state tax statute, where taxes paid during pendency of suit could not be recovered, if statute was adjudged invalid (Act La. No. 5, of 1928, amending Act La. No. 140 of 1922).

In suit to prevent enforcement against plaintiff of Act La. No. 5 of 1928, amending prior statute (Act La. No. 140 of 1922), imposing severance tax on production of oil, where, if tax be paid during pendency of suit and statute be adjudged invalid by final decree, plaintiff will be remediless because laws of Louisiana afford no remedy whereby restitution of money so paid may be enforced, held, that plaintiff should be granted an interlocutory injunction on terms requiring plaintiff to punctually and regularly pay tax fixed by prior act, give adequate bond, and prosecute suit with reasonable expedition to final decree.

Appeal from the United States District Court for the Eastern District of Louisiana.

Suit by the Ohio Oil Company against E. A. Conway, Supervisor of Public Accounts, and others. Plaintiff's application for an interlocutory injunction was denied [28 F.(2d) 441], and plaintiff appeals. Order denying application vacated, with directions.

prior act and declaring a willingness and readiness to pay the tax imposed thereby, the plaintiff alleges that the changed and enlarged tax imposed by the amendatory act is invalid in that that act as applied to the plaintiff's operations contravenes the equal protection clause of the Fourteenth Amend

ment to the Constitution of the United States, state requiring that severance taxes be prediand also a provision of the Constitution of the cated upon "either the quantity or value" of the product at the time and place of its sev

erance.

The parties are citizens of different states and the matter in controversy exceeds in value the jurisdictional requirement. On bringing the suit, the plaintiff applied for an interlocutory injunction restraining the enforcement against it of the amendatory act pending the decree on final hearing; but the District Court, composed of three judges conformably to section 380 of title 28 of the United States Code (28 USCA § 380), denied the application. An appeal from that order brings it under review.

The application for an interlocutory injunction was submitted on ex parte affidavits, which are harmonious in some particulars and contradictory in others. The affidavits, especially those for the defendant, are open to the criticism that on some points mere conclusions are given, instead of primary facts. But enough appears to make it plain that there is a real dispute over material

*815

questions of fact, which cannot be satisfactorily resolved upon the present affidavits, and yet must be resolved before the constitutional validity of the amendatory statute can be determined.

The statute provides for the enforced payment of the tax quarterly in each year. If the tax be paid during the pendency of the suit, and the statute be adjudged invalid by

the final decree, the plaintiff will be remediless. The laws of the state afford no remedy

Mr. S. L. Herold, of Shreveport, La., for ap whereby restitution of the money so paid may pellant.

be enforced, even where the payment is un

Mr. Wood H. Thompson, of New Orleans, der both protest and compulsion. La., for appellees.

PER CURIAM. This is a suit to prevent the enforcement against the plaintiff of a statute of Louisiana (Act 5 of 1928) amending

[1] Where the questions presented by an application for an interlocutory injunction are grave, and the injury to the moving party will be certain and irreparable, if the application be denied and the final decree be in his

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

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