The foreclosure decree of December 24, 1917, provided for a first offer of the road to be used as a common carrier, but if less than $200,000 was bid, there was to be a second offer with the privilege of dismantling. If, however, the bid on the second offer did not exceed by $100,000 the bid under the first offer, if there was one, the bid under the first offer was to be accepted. The trustee for bondholders was authorized to use the indebtedness of the company in bidding and to apply his bid, if accepted, to the same. There was no bid on the first offer and the Assets Realization Company bought the property under the second. The prohibition is against confirming the sale and against so much of the foreclosure decree as authorized the second offer or dismantling the road. The ground of decision was that in the absence of statute a railroad company has no right to divert its property to other uses without the consent of the State and that the lower Court had no jurisdiction to make the prohibited portion of the decree in a proceeding to which the State was not a party until after the decree had been made.

It is not questioned that the lower Court had jurisdiction of the foreclosure and it is not suggested that any statute forbids the decree that was made. The decision of the Court proceeds upon a doctrine as to the duty of the railroad company, again a duty not based upon statute, and although stated in terms of jurisdiction, depends entirely upon a determination of what the rights of the company are. If the company had the right to stop its operations and dismantle its road we do not understand that it is doubted that the decree might embody that right in its order of sale. If we are correct, the word jurisdiction must not prevent a further consideration of the case. Kenney v. Supreme Lodge of the World, Loyal Order of Moose, 252 U. S. 411, 414, 415.

Apart from statute or express contract people who have put their money into a railroad are not bound to go on

with it at a loss if there is no reasonable prospect of profitable operation in the future. Brooks-Scanlon Co. v. Railroad Commission of Louisiana, 251 U. S. 396. No implied contract that they will do so can be elicited from the mere fact that they have accepted a charter from the State and have been allowed to exercise the power of eminent domain. Suppose that a railroad company should find that its road was a failure, it could not make the State a party to a proceeding for leave to stop, and whether the State would proceed would be for the State to decide. The only remedy of the company would be to stop, and that it would have a right to do without the consent of the State if the facts were as supposed. Purchasers of the road by foreclosure would have the same right.

But the foreclosure was not a proceeding in rem and could confer no rights except those existing in the mortgagor. A purchaser at the sale would acquire all such right as the mortgagor had to stop operations, whatever words were used in the decree, and, whatever the words, would get no more. The prohibition excluding from the decree the words purporting to authorize dismantling the road did not cut down the future purchaser's rights, any more than did the presence of those words enlarge them. Therefore the action of the Supreme Court is not open to objection under the Constitution of the United States, although it may be that it hardly would have been taken if the authority to dismantle had not sounded more absolute than it could be in fact, considering the nature of the proceeding. Without previous statute or contract to compel the company to keep on at a loss would be an unconstitutional taking of its property. But the prohibition does not compel the company to keep on, it simply excludes a form of authority from the decree that gives the illusion of a power to turn the property to other uses that cannot be settled in that case.

As the State voluntarily made itself a party to the foreclosure suit before the decree went into effect, as indeed the decree never has, it might seem that the State ought to be bound in a way that otherwise it would not be. But if in a revisory proceeding the higher State Court says that the State should not be bound and that the decree was wrong in this particular, that is a local question with which we have nothing to do. The result is that although the State Court may have acted on questionable or erroneous postulates there is nothing in its action that calls for a reversal of its judgment.

Writ of Error dismissed.
Writ of Certiorari granted.
Judgment affirmed.

EX PARTE IN THE MATTER OF MUIR, MASTER OF THE GLENEDEN.

PETITION FOR A WRIT OF PROHIBITION AND/OR FOR A WRIT

OF MANDAMUS.

No. 18, Original. Argued January 7, 1919.—Decided January 17, 1921.

1. Over a privately-owned ship, arrested in the District, and a libel for damages due to a collision alleged to have resulted from negligence of the owner's agents, the District Court has prima facie jurisdiction; and a mere allegation that the ship is an admiralty transport in the service of a foreign government is not enough to establish her immunity. P. 532.

2. A foreign government is entitled to appear in the District Court and propound its claim to a vessel in a libel suit upon the ground that the status of the vessel is public and places it beyond the jurisdiction; or its accredited representative may appear in its behalf; or, its claim, if recognized by our executive department, may be presented to the court by a suggestion made by or under authority of the

522.

Argument for Petitioner.

Attorney General; but the public status of the ship, when in doubt, can not be determined upon a mere suggestion of private counsel appearing as amici curia in behalf of the embassy of the foreign government. P. 532.

3. This court, in its discretion, may decline to issue the writs of prohibition and mandamus to prevent exercise of jurisdiction by the District Court in an admiralty proceeding, where the jurisdiction is merely in doubt and the state of the case is such that the question may well be reconsidered by the District Court and on appeal. P. 534.

Rule discharged and petition dismissed.

THE case is stated in the opinion.

Mr. John M. Woolsey, with whom Mr. J. Parker Kirlin and Mr. D. M. Tibbetts were on the brief, for petitioner: The Gleneden as a British Admiralty transport in the service of the British Government was and is immune from arrest under process of the courts of the United States and should have been released by the United States District Court for the Eastern District of New York on the suggestion filed by counsel for the British Embassy as amici curiæ.

The method of proving the status of the Gleneden as a British public ship by a suggestion filed in behalf of the British Embassy by counsel appearing as amici curiæ was in accordance with the well established practice. The Roseric, 254 Fed. Rep. 154; The Athanasios, 228 Fed. Rep. 558; The Maipo, 252 Fed. Rep. 627; The Adriatic, 253 Fed. Rep. 489.

On the facts shown by the suggestion the ship was immune and the District Court should have released her forthwith on that representation. The Exchange, 7

Cranch, 116; The Roseric, supra; The Broadmayne [1916], Prob. 64; The Messicano, 32 T. L. R. 519; The Erissos (Lloyd's List, Oct. 24, 1917); The Crimdon, 35 T. L. R.

It follows that the District Court exercised an unwar

Argument of amici curiæ for the British Embassy. 254 U.S.

ranted assumption of power in retaining the Gleneden under process of arrest in order to force the giving of security. For, as the vessel was immune from process, there was no way in which the court could legally force an appearance by the owner of the vessel.

In our jurisprudence jurisdiction can only be obtained by personal service of process or by attachment or arrest of property. Ex parte Indiana Transportation Co., 244 U. S. 456. A ship must be either a public ship or a private ship. Tucker v. Alexandroff, 183 U. S. 424, 446. If she was a public ship, which is conclusively proved by the suggestion, she was and is immune from process.

It has been held both here and in England that the question of the immunity of a vessel from arrest can be properly raised on an agreement such as that made here to give a bond in the event that the vessel is held not to be immune. The Florence H, 248 Fed. Rep. 1012, 1014; The Roseric, supra; The Crimdon, supra.

The jurisdiction of this court to grant the relief asked is undoubted. There is not any other remedy. An appeal would not have been possible either to this court or to the Circuit Court of Appeals because the order requiring the giving of a bond was not a final order as against any party to the case.

Considerations of public policy and comity between the Government of the United States and the Government of Great Britain and the necessity for a speedy determination of the important questions here involved require the granting the relief prayed.

Mr. Homer L. Loomis, with whom Mr. Joseph A. Barrett and Mr. J. Alvis Grace were on the brief, for respondent.

Mr. Frederic R. Coudert and Mr. Howard Thayer Kingsbury, as amici curia, in behalf of the British Embassy: