other objections not necessary to be men-, entire business of the corporation—and on tioned here. The defendant denies the plain- that ground made its decree. tiff's allegations and in reconvention prays for an injunction against the tearing up or abandoning of the road and for a mandate upholding the order. In the Court of first instance a preliminary injunction was issued in favor of the Commission, but was dissolved upon bond. Subsequently a judgment was entered denying a motion of the Commission to set aside the order dissolving the injunction, and after a trial on the merits judgment was entered for the plaintiff, declaring the order void. The defendant appealed from both judgments to the Supreme Court of the State. That Court reversed the decision below and reinstated the injunction granted on the defendant's prayer. *398 [1, 2] We are of opinion that the test applied was wrong under the decisions of this Court. A carrier cannot be compelled to carry on even a branch of business at a loss, much less the whole business of carriage. On this point it is enough to refer to Northern Pacific Ry. Co. v. North Dakota, 236 U. S. 585, 595, 599, 600, 604, 35 Sup. Ct. 429, 59 L. Ed. 735, L. R. A. 1917F, 1148, Ann. Cas. 1916A, 1, and Norfolk & Western Ry. Co. v. West Virginia, 236 U. S. 605, 609, 614, 35 Sup. Ct. 437, 59 L. Ed. 745. It is true that if a railroad continues to exercise the power conferred upon it by a charter from a State, the State may require it to fulfill an obligation imposed by the charter even though fulfilment in that particular may cause a loss. Missouri Pacific Ry. Co. v. Kansas, 216 U. S. 262, 276, 278, 30 Sup. Ct. 330, 54 L. Ed. 472. But that special rule is far from throwing any doubt upon a general principle too well established to need further argument here. The plaintiff may be making money from its sawmill and lumber business but it no more can be compelled to spend that than it can be compelled to spend any other money to maintain a railroad for the benefit of others who do not care to pay for it. If the plaintiff be taken to have granted to the public an interest in the use of the railroad it may withdraw its grant by discontinuing the use when that use can be kept up only at a loss. Munn v. Illinois, 94 U. S. 113, 126, 24 L. Ed. 77. The principle is illustrated by the many cases in which the constitutionality of a rate is shown to depend upon whether it yields to the parties concerned a fair return. *It seems that the Banner Lumber Company, a Louisiana corporation, formerly owned timber lands, sawmills and this narrow gauge railroad. The road was primarily a logging road but it may be assumed to have done business for third persons as a common carrier. The Banner Lumber Company sold the whole property to the Brooks-Scanlon Lumber Company on November 1, 1905, the stockholders of which obtained a charter for the railroad as the Kentwood and Eastern Railway Company on December 5 of the same year. In the interim it was managed by them with separate accounts. An oral lease of the road was made to the new company and soon afterwards the Brooks-Scanlon Lumber Company transferred its property to the Brooks-Scanlon Company, the plaintiff in error. On the first of July, 1906, the Brooks-Scanlon Company made a written lease of the road to the Railway Company and sold to it all the rolling stock and personal property used in connection with the road. Thereafter the road was run as before, doing a small business as a common carrier but depending upon the carrying of logs and lumber to make it a profitable rather than a losing concern. In course of time the to it than *the former schedule cost, and at a timber of the Brooks-Scanlon Company was cut and it terminated the lease to the Rail- profit for plaintiff." This is merely the lanway Company, which discontinued business guage of hope. We cannot take it to be a on April 22, 1918, with the assent of the finding of fact, for we perceive nothing in Railroad Commission, and sold its rolling the evidence that would warrant such a findstock. At that time the Commission being advised that it had no power did nothing more. But later, subsequent to a decision by the Supreme Court in May, it issued notice to the Brooks-Scanlon Company and the Railway to show cause why the road should not be operated, gave a hearing, and issued the order complained of here. The Supreme Court, after saying that the two corporations were one under different names stated that the only question left for determination was whether the plaintiff could be compelled by *399 the Commission to operate *its railroad, and concluded that although the railroad showed a loss, the test of the plaintiff's rights was the net result of the whole enterprise-the [3] While the decision below goes upon the ground that we have stated, it is thrown in at the end as a makeweight that the order of the Commission calls upon the plaintiff "to submit a new schedule for transportation which may be operated at much less expense *400 ing. The assumption upon which the Court made its ruling was that the plaintiff's other business was successful enough to stand a loss on the road. [4] Finally a suggestion is made in argument that the decision rested also upon another ground that cannot be reconsidered here. At the end of the opinion it is stated that the plaintiff has not petitioned the Railroad Commission for leave to discontinue this business and that until it has done so the courts are without jurisdiction of the matter. It is not impossible that this is an oversight since it seems unlikely that after the Commission has called the plaintiff before it on the question and against its strenuous objection has required it to go on, such an empty (40 Sup.Ct.) form can be required. But in any case it | 1898, c. 448, §§ 29, 30, 30 Stat. 448, 464, 465, cannot be meant that the previous discussion repealed by the Act of April 12, 1902, c. 500, which occupies the whole body of the opinion § 7, 32 Stat. 96, 97, the repeal to take effect is superfluous and irrelevant to the result on July 1, 1902. By the Act of June 27, 1902, reached; nor can the words be taken literal- c. 1160, § 3, 32 Stat. 406, the Secretary of the ly, since the court proceeded to take jurisdic- Treasury was directed to refund taxes upon tion and reinstated an injunction in favor of legacies collected upon contingent beneficial the defendant. Whatever may be the forms interests that should not have become vested required by the local law it cannot give the before July 1, 1902, and this claim is made Court or Commission power to do what the under the last mentioned act. The claim Constitution of the United States forbids, which is what the order and injunction attempt. Pennsylvania R. R. Co. v. Public Service Commission of Pennsylvania (November 10, 1919), 250 U. S. 566, 40 Sup. Ct. 36, 63 L. Ed. 1142. Decree reversed. (251 U. S. 393) HENRY v. UNITED STATES. (Argued Jan. 21, 1920. Decided Feb. 2, 1920.) No. 162. INTERNAL REVENUE 36-INTERESTS OF LEG- TRANSFERRED TO TRUSTEE BEFORE JULY 1, 1902. Within Act June 27, 1902, § 3, providing for refunding of legacy tax under Spanish War Revenue Act, collected on contingent beneficial interests not vesting before July 1, 1902, the amount of a legacy in trust for life of beneficiary having been transferred by the executor to his separate account as trustee, and moneys having been paid over by the executor to the residuary legatees, all before said July 1st, the interests of the beneficiary and legatees in such funds became then vested in possession, and the funds taxable, though the time for proving claims against the estate did not expire till after such date, with the consequent possibility of such payments having to be refunded to pay debts of the estate, and though the life tenant received no income before such date. Appeal from the Court of Claims. Messrs. Simon Lyon and R. B. H. Lyon, both of Washington, D. C., for appellant. *394 was held by the Court of *Claims to be barred by the Statute of Limitations.. In view of the decision in Sage v. United States, 256 U. S. 33, 39 Sup. Ct. 415, 63 L. Ed. 828, it is admitted by the Government that the judgment cannot be sustained on that ground, and therefore that matter need not be discussed, but it is contended that the judgment was right because the legacies taxed had become vested before July 1, 1902. Whether they had become vested within the meaning of the refunding act is the only question in the case. The facts are these: Arthur Hendricks died domiciled in New York on March 5, 1902, and his will was proved on March 17, 1902. The claimant was executor and trustee under the will. By that instrument the sum of $50,000 was left to the claimant in trust for Florence Lester for life, the remainder to go to the residue. The residue was left to the testator's five sisters. On July 1, 1902, the time for proving claims against the estate had not expired, but before that date the executor, having correctly estimated that a large sum would be left after all debts, paid over $135,780 to the five sisters in equal shares and 'established the trust fund' for Florence Lester, that is, as we understand the finding, transferred the sum of $50,000 to his separate account as trustee. The taxes in question were levied on these two amounts. There is no doubt that if the claimant had retained the funds in his hands, as he had a legal right to do, the interest of the legatees would not have been vested in possession within the meaning of the statute, whatever the probabilities and however solvent the estate. United States v. Jones, 236 U. S. 106, 35 Sup. Ct. 261, 59 L. Ed. 488, Ann. Cas. 1916A, 316; McCoach v. Pratt, 236 U. S. 562, 35 Sup. Ct. 421, 59 L. Ed. 720. He contends that the same is true if he saw fit to pay over legacies before the time came when they could be demanded as of right. We will assume that, if the estate had proved insufficient, the executor not only would have been Mr. Solicitor General Alex. C. King, of responsible but could have recovered such porAtlanta, Ga., for the United States. tion of his payments as was needed to pay *395 debts. Still the consequence asserted does Mr. Justice HOLMES delivered the opinion not follow. There can be no question that of the Court. the interest of the sisters was held in posThis is a suit to recover taxes paid under session, and so was that of the trustee, althe Spanish War Revenue Act of June 13,though he happened to be the same person For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes as the executor. The interest was vested, Co., 222 U. S. 158, 160, 32 Sup. Ct. 59, 56 L also in each case. The law uses familiar Ed. 137. In that case it was contended that legal expressions in their familiar legal sense, the life estate was contingent so far as not and the distinction between a contingent in-actually enjoyed. terest and a vested interest subject to be divested is familiar to the law. Gray, Rule Against Perpetuities, § 108. The remote possibility that the funds in the hands of the legatees might have to be returned no more prevented their being vested in possession and taxable than the possibility that a life estate might end at any moment prevented one that began before July 1, 1902, being taxed at its full value as fixed by the mortuary tables. United States v. Fidelity Trust It is argued with regard to the trust for Florence Lester that the case stands differently because the life tenant received no income from it before July 1, 1902. But for the purposes of this act the interest in a fund transferred from an estate to a trustee for ascertained persons is vested in possession no less than when it is conveyed directly to them. See United States v. Fidelity Trust Co., supra. Judgment affirmed. (252 U. S. 178) (40 Sup.Ct.) UNITED STATES ex rel. KANSAS CITY COMMERCE COMMISSION. ing the steps to be taken in the performance of the general duties thus imposed, the same section commanded as follows: (Argued Dec. 10, 1919. Decided March 8, 1920.) sion shall ascertain and report in detail as to "First. In such investigation said Commiseach piece of property owned or used by said carrier for its purposes as a common carrier, * the cost of reproduction new, the cost of reproduction less depreciation, and an analysis of the methods by which these several costs are obtained, and the reason for their differences, if any. * * "Second. Such investigation and report shall state in detail and separately from improvements the original cost of all lands, rights of way, and terminals owned or used for the pur As Congress had authority to require the Interstate Commerce Commission, in ascertaining the value of the property of common carriers, under Act March 1, 1913, c. 92, § 19a, amending Act Feb. 4, 1887, c. 104 (Comp. St. § 8591) to ascertain the present cost of condemna-poses of a common carrier, and ascertained as tion and damages, or of purchase in excess of the original cost or present value, it is its duty to do so, even assuming that the Supreme Court decided in a railroad rate case that such matters were beyond the possibility of rational determination. of the time of dedication to public use, and the 2. COMMERCE 87-DIFFICULTY OF INTER- tentative valuation of the property of any comSTATE COMMERCE COMMISSION OBEYING STATUTE IN VALUING RAILROAD PROPERTY DOES NOT EXCUSE FAILURE OR REFUSAL. That the ascertainment by the Interstate Commerce Commission of the present cost of condemnation and damages, or of purchase of the property of common carriers, in excess of the original cost or present value, as required by Act March 1, 1913, c. 92, § 19a, amending Act Feb. 4, 1887, c. 104 (Comp. St. § 8591), will necessarily open a wide range of proof, and call for the exercise of close scrutiny and scrupulous analysis in its consideration and application, affords no basis for the refusal of the commission to hear evidence and ascertain such present cost. mon carrier, as herein directed, and before such valuation shall become final, the Commission shall give notice by registered letter to the said carrier, * stating the valuation placed *183 upon the several classes of property of said carrier, and shall allow thirty days in which to file a protest of the same with the Commis sion. * shall fix a time for hearing the same, and shall In Error to the Court of Appeals of the to Regulate Commerce as of the date of the District of Columbia. fixing thereof, and in all judicial proceedings for the enforcement of the act approved February 4, 1887, commonly known as 'the Act to Regulate Commerce,' and the various acts amendatory thereof, and in all judicial proceedings brought to enjoin, set aside, annul or suspend, in whole or in part, any order of the Interstate Commerce Commission." Pursuant to these requirements the Commission proceeded to investigate and report the value of the property of the Kansas City Southern Railway Company. Upon completing a tentative valuation, the Commission gave the notice required by the statute to the railway company, which thereupon filed a protest against such valuation on the ground that in making it the Commission had *Mr. Chief Justice WHITE delivered the failed to consider and include the "present opinion of the Court. cost of condemnation and damages or of purThe Act of Congress of March 1, 1913 (37 chase in excess of such original cost or presStat. 701), amending the "Act to Regulate ent value." Upon the subject of the protest, Commerce," imposed the duty upon the In- the railway company took a large amount of terstate Commerce Commission (section 19a testimony and much was also taken by the [Comp. St. § 8591]) to "investigate, ascertain, Commission, both parties having incurred and report the value of all the property own- considerable expense in the matter. ed or used by every common carrier sub- Pending this situation, in order that the ject to the provisions of this act." Specify-excessive expense of taking each individual For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes parcel and showing what it would cost to acquire it or a right of way over it by purchase or condemnation might be avoided, an *184 agreement *was entered into between the Director of the Bureau of Valuation of the Commission, C. A. Prouty, and the railway company, that in the event the Commission should decide that evidence upon the cost of acquiring land by purchase or condemnation would be received by it, the Bureau of Valuation would recommend to the Commission the percentage or multiplier of the naked value of the land, to be used for the purpose of reaching the railway cost of acquiring the same. Supreme Court in the opinion quoted, our duty to abstain from reporting as an ascertained fact that which is incapable of rational ascertainment, is clear. "Because of the impossibility of making the self-contradictory assumptions which the theory requires when applied to the carrier's lands, we are unable to report the reproduction cost of of acquisition and damages, or of purchase in such lands or its equivalent, the present cost excess of present value. The present value of lands as found by us appears in the final valuation, appended hereto." Applying the ruling thus made to the protest which was pending in this case, the Commission gave notice to the railway that the agreement made with the Director of the Bureau of Valuation concerning the method of proof would be treated as not further operative; and thereafter when an offer was *186 made by the railway before an exam*iner of the Commission of further testimony con because in conflict with the ruling announced in the Midland Case. The Commission sustained this action of the examiner on the ground that that officer had rightly held that the ruling in the Midland Case was controlling; and the Commission therefore decided that no further testimony on the particular subject would be heard in this case, and that it would make no report concerning that subject. At that time there was also pending a protest concerning a tentative valuation made by the Commission as to the property of the Texas Midland Railroad Company, raising the same question as to error committed in failing to carry out the provisions of the statute concerning the present cost of condemnation, etc., in which case the Commis-cerning the subject in hand, it was excluded sion overruled the protest, holding that the provision of the statute in question was not susceptible of being enforced or acted upon for reasons stated by the Commission in part as follows (I. C. C. Val. Rep. 1, p. 54 et seq.): "However, the direction in paragraph 'Second' for the ascertainment of the present cost of condemnation and damages or of purchase in effect calls for a finding as to the cost of reproduction of these lands. Must this be done, and can this be done? It seems elementary that the cost of reproduction can be estimated only by assuming that the thing in question is to be produced again, and that if it is to be produced again, it is to be taken as not existent. It seems sophistry to contend that the lands of the railroad can be produced again at a cost to the railroad without first making the assumption that they are no longer lands of the railroad; and this necessary assumption carries with it the mental obliteration of the railroad itself. "Considerable testimony was produced to the effect that in the acquisition of a railroad right of way it is necessary for the carrier to pay *185 This suit was then brought to obtain a mandamus to compel the Commission to hear the proof and act upon it under the statute. The amended petition, after reciting the facts as we have outlined them and making the appropriate formal averments to justify resort to mandamus, alleged: "That the refusal of respondent to investigate and find such present cost of condemnation and damages or of purchase in excess of original cost or present value of relator's lands will result in great wrong and injury to relator; by way of illustration, such refusal will result in a finding by respondent of a value of but $60,000 sums in excess of the value of the land if with respect to parcels of land acquired by remeasured by the present or market value of sim-lator by judicial award in condemnation proilar contiguous lands, and this because of the ceedings during four years immediately precedelements which have been enumerated and em- ing such valuation at an actual cost to relator braced in the protest, such as cost of acquisition, of $180,000, and in the aggregate will result damages to the severed property, cost of build-in a finding with respect to said lands at least ings and other improvements, accrued taxes and $5,000,000 less than the value so directed by various incidental rights. the act of Congress above mentioned to be found." * "We are unable to distinguish between what is suggested by the carrier in this record and nominally required by the act and what was condemned by the court (in the Minnesota Rate Cases [230 U. S. 352, 33 Sup. Ct. 729, 57 L. Ed. 1511, 48 L. R. A. (N. S.) 1151, Ann. Cas. 1916A, 18]) as beyond the possibility of rational determination; nor is there any essential difference in the actual methods there employed and those now urged upon us. Before we can report figures as ascertained, we must have a reasonable foundation for our estimate, and when, as here, if the estimate can be made only upon inadmissible assumptions, and upon impossible hypotheses, such as those pointed out by the It was further averred, with considerable elaboration, that the petitioner stood ready to produce proof to meet the requirements of the statute which was neither speculative nor impossible to be acted upon, since it would conform to the character of proof usually received in judicial proceedings involving the exercise of eminent domain. The Commission in its answer, either stat *187 ing or con*ceding the history of the case as we have recited it, and summarily reiterat |