Scope of review.

Public Utility Comrs. 254 U. S. 394, 41 Presumption as to determination below, Sup. Ct. Rep. 169, 65: 322 see infra, 53.

See also infra, 62.

27. Questions of local law are not open to review in the Federal Supreme Court on writ of error to a state court. Hartford L. Ins. Co. v. Blincoe, 255 U. S. 129, 41 Sup. Ct. Rep. 276, 65: 549 28. There being no pretense that the highest state court adopted its view of a non-Federal question in order to evade an issue under the Federal Constitution, and the case having been decided upon grounds that have no relation to any Federal question, the Federal Supreme Court accepts the decision of the state court, whether right or wrong. Nickel v. Cole, 256 U. S. 222, 41 Sup. Ct. Rep. 467, 65: 900

29. The objection, in an action by a shipper against a carrier for overcharges, brought under a state long-and-short-haul statute, that the shipper did not pay freight charges, and therefore was not damaged, raises no substantial Federal question, but a question of state law, which the Federal Supreme Court has no jurisdiction to review on writ of error to a state court. Missouri P. R. Co. v. McGrew Coal Co. 256 U. S. 134, 41 Sup. Ct. Rep. 404, 65: 864

30. The Federal Supreme Court must accept on writ of error the decision of the highest court of a state as to the meaning of state legislation and the state Constitution, as though such meaning was expressed in both legislation and Constitution. Thornton v. Duffy, 254 U. S. 361, 41 Sup. Ct. Rep. 137, 65: 304 31. The construction of a state statute by the highest court of that state must be accepted by the Federal Supreme Court when testing the validity of the statute under the Federal Constitution, on writ of error to the state court. Quong Ham Wah Co. v. Industrial Acci. Commission, 255 U. S. 445, 41 Sup. Ct. Rep. 373, 65: 723

35. Whether, in a proceeding against the Director General, operating the railroads under the Federal Control Act of March 21, 1918, the liability imposed by state statutes for violations of those stat utes shall be deemed compensation or penalty, presents a question not of state but of Federal law, open to review in the Federal Supreme Court on writ of error to a state court. Missouri P. R. Co. v. Ault, 256 U. S. 554, 41 Sup. Ct. Rep. 593, 65: 1087 Norfolk-Southern R. Co. v. Owens, 256 U. S. 565, 41 Sup. Ct. Rep. 597,

65: 1093

36. The omission of the state courts below to pass upon certain evidence or make findings of fact thereon, doubtless because, under their respective views of the applicable law, the facts referred to were immaterial, does not relieve the Federal Supreme Court, on writ of error, of the duty of examining the evidence for the purpose of determining what facts reasonably might be and presumably would be found therefrom by the state court if plaintiff in error's contention upon the question of Federal law should be sustained, and the facts thereby shown to be material. Merchants' Nat. Bank v. Richmond, 256 U. S. 635, 41 Sup. Ct. Rep. 619, 65: 1135

III. Transfer of cause; further proceedings below.

37. After the allowance of a writ of error from the Federal Supreme Court to the court of appeals of the District of Columbia the cause passed beyond the jurisdiction of the latter court. Heitmuller v. Stokes, 256 U. S. 359, 41 Sup. Ct. Rep. 522, 65: 990

IV. The record.

Errors not assigned.

See also infra, 56, 57.

38. A purely technical objection not set up among the errors assigned in the circuit court of appeals and in the Federal Supreme Court is not available in the latter court. Pierce v. United States, 255 U. S. 398, 41 Sup. Ct. Rep. 365,

65: 697

39. The improper allowance of interest on a judgment in a creditors' suit should have been considered in the Federal circuit court of appeals though not assigned as error, where the rules of that court provide that it may notice a plain error not assigned or specified. Pierce v. United States, 255 U. S. 398, 41 Sup. Ct. Rep. 365, 65: 697

32. The proper construction of a state statute providing for the recovery of damages and attorneys' fees for vexatious refusal to pay a loss under a policy of insurance is for the state courts to determine; and their conclusion is not open to review in the Federal Supreme Court, although the latter court may consider the application of the statute to the circumstances of the case to be rather hard. Hartford L. Ins. Co. v. Blincoe, 255 U. S. 129, 41 Sup. Ct. Rep. 276, 65: 549 33. A state having power to impose an inheritance tax, the question whether or not a certain interest under the circumstances was correctly subjected to the tax is a purely state question, not reviewable by the Federal Supreme Court on writ of error to a 40. The rule that errors in rulings of state court. Nickel v. Cole, 256 U. S. 222, law occurring in the course of the trial 41 Sup. Ct. Rep. 467, 65: 900 cannot be considered on writ of error un34. The Federal Supreme Court has no less incorporated into the record by bill concern, on writ of error to a state court, of exceptions has no application when the with the question how far legislative or errors assigned are wholly those alleged to quasi legislative powers may be delegated to have been committed by an intermediate a commission or board. Erie R. Co. v. appellate court, even though such court

V. Objections and exceptions.

findings, but does not contain all the evi-
dence, since, under these circumstances, to
return the cause for oral argument in reg-
ular course would result in harmful delay,
and serve no useful purpose. Bodkin v.
Edwards, 255 U. S. 221, 41 Sup. Ct. Rep.
268,
65: 595

47. The want of merit in the contention that the provision of the Reed Amendment of March 3, 1917, § 5, prohibiting the transportation in interstate commerce of intoxicating liquor into any state whose laws forbid the manufacture or sale therein of such liquor for beverage purposes is repugnant to U. S. Const. art. 1, § 9, cl. 6, prohibiting any regulation of commerce which gives a preference to the ports of one state over those of another, is so plainly established by the decisions of the Federal Supreme Court and the authorities which have followed those decisions as to require the affirmance on motion of a con

has, like the supreme court of Porto Rico,, same way, and the record not only fails power to review the evidence, to make new clearly to disclose error in such concurrent findings of fact thereon, and to enter such judgment as to it may seem proper. Ana Maria Sugar Co. v. Quinones, 254 U. S. 245, 41 Sup. Ct. Rep. 110, 65: 246 41. In the absence of special findings of fact by the court below, its general finding has, under U. S. Rev. Stat. § 649, the effect of a verdict of a jury, and is conclusive upon all matters of fact, and there being no exceptions to rulings of law in the progress of the trial, the review in the Federal Supreme Court is, under § 700, limited to the question of the sufficiency of the complaint. Vicksburg, S. & P. R. Co. v. Anderson-Tully Co. 256 U. S. 408, 41 Sup. Ct. Rep. 524, 65: 1020 42. The facts found by the Interstate Commerce Commission in a reparation proceeding were not so adopted by the district court in a suit upon the reparation order as to become special findings of fact by the court, which may be reviewed by the Federal Supreme Court without exception tak-viction for a violation of such statute, en, merely because the court found that the report and order of the Commission constituted prima facie evidence of the facts therein stated, and entered judgment in favor of plaintiff for the amount of the order, with interest and attorneys' fees. 48. The Federal Supreme Court will not Vicksburg, S. & P. R. Co. v. Anderson-Tully pass upon the merits of a writ of error sued Co. 256 U. S. 408, 41 Sup. Ct. Rep. 524. out to review a judgment in an action to 65: 1020 recover the possession of real estate, where, 43. An objection to the introduction in pending review, the defendant in error evidence in a criminal case of a paper sur-(plaintiff below), has parted with the title reptitiously taken from the office of the to the premises, so that no controversy accused by a representative of the Federal remains, except as to costs. Heitmuller v. government is in time, though not made Stokes, 256 U. S. 359, 41 Sup. Ct. Rep. before trial, where such objection was made 522, 65: 990 promptly upon the first notice the accused had that the government was in possession of the paper. Gouled v. United States, 255 U. S. 298, 41 Sup. Ct. Rep. 261, 65: 647

brought up directly from a Federal district
court for review, on the theory that the
law was unconstitutional for that reason.
Williams v. United States, 255 U. S. 336,
41 Sup. Ct. Rep. 364,
65: 664

49. An appeal in admiralty by the claimants alone from a decree sustaining one of the two claims for which the libel was brought, and denying the other, gives the libellants a right of review in the appellate court of which they cannot be deprived by the act of that court in granting a motion to withdraw the appeal. T. M. Duche & Sons v. The John Twohy, 255 U. S. 77, 41 Sup. Ct. Rep. 251, (Annotated) 65: 511 VII. Hearing and determination.

Who may complain.

See also supra, 49.

50. Without an appeal a party will not heard in an appellate court to question the correctness of the decree of the trial court. Bothwell v. United States, 254 U. S. 231, 41 Sup. Ct. Rep. 74, 65: 238

44. A writ of error from the Federal Supreme Court to a state court must be dismissed where the Federal question involved had, when the writ was sued out, become too unsubstantial to support the Federal jurisdiction of the Federal Supreme Court. Miller & Lux v. Sacramento be & S. J. Drainage Dist. 256 U. S. 129, 41 Sup. Ct. Rep. 404, 65: 859 45. The Federal Supreme Court will dismiss a writ of error to a state court where 51. Libellants are justified in regarding the proposition upon which alone juris- an appeal taken by claimants from a decree diction to entertain the writ can be based in admiralty sustaining one only of the is so wanting in foundation as to be frivolous. Quong Ham Wah Co. v. Industrial Acci. Commission, 255 U. S. 445, 41 Sup. Ct. Rep. 373, 65: 723 46. A decree of a Federal circuit court of appeals will be affirmed on motion where the case turns essentially on questions of fact, and both courts below, on a review of the evidence, have found the facts in the

two claims for which the libel was brought as securing to the former the right to be heard in the appellate court upon the adverse action of the court below without the necessity of perfecting a cross appeal in order to preserve that right. T. M. Duche & Sons v. The John Twohy, 255 U. S. 77, 41 Sup. Ct. Rep. 251, (Annotated)

65: 511

Trial de novo.

52. An appeal by either party in an admiralty case operates to remove the case to the appellate court for a trial de novo. T. M. Duche & Sons v. The John Twohy, 255 U. S. 77, 41 Sup. Ct. Rep. 251, (Annotated) 65: 511

Presumptions.

53. The Federal Supreme Court, on writ of error to a state court to review a judgment which affirmed a decree below, sustaining a demurrer to the answer in a suit by a shipper against a railway company to compel it to observe freight rates established by the state railroad commission, must assume that the highest state court considered all that was pertinent to the grounds of suit and the railway company's resistance, including the contention, urged for the first time in the Federal Supreme Court, that the answer failed to state a defense because the railway company had not pursued the remedy which the state had prescribed for relief against an order of the commission. Vandalia R. Co. v. Schnull, 255 U. S. 113, 41 Sup. Ct. Rep. 324, 65: 539

What reviewable generally.

On writ of error sued out by government in criminal case, see supra,

I. c.

On writ of error to state court, see supra, 27-36.

Scope of review on certiorari, see Certiorari, 7.

54. The distinction between writs of error and appeals, so far as the scope of review in either proceeding is concerned, was not abolished by the provision of the Act of September 6, 1916, § 4, that the reviewing court shall not dismiss a writ of error because an appeal should have been taken, nor dismiss an appeal because a writ of error should have been sued out, but shall disregard such mistakes and take the action appropriate if the proper appellate procedure had been followed. This section merely provides that the party seeking review shall have it in the appropriate way, notwithstanding a mistake in choosing the mode of review. Ana Maria Sugar Co. v. Quinones, 254 U. S. 245, 41 Sup. Ct. Rep. 110, 65: 246 Extending review beyond Federal ques

tion.

the Federal Supreme Court as grounds for
reversal. Ana Maria Sugar Co. v. Quinones,
254 U. S. 245, 41 Sup. Ct. Rep. 110,
65: 246

57. The denial of relief by habeas corpus
to a person imprisoned under sentence of
a court-martial will not be disturbed on
appeal on suggestions based upon the sup-
posed duty, on the trial before the court-
martial, to negative every possible condition
the existence of which might have prevented
that court from trying the case, including
the possibility that the officer under trial
might have belonged to a command which
did not come within the power to call a
court-martial conferred upon the convening
officer, particularly where the suggestion
made in this regard seems to have been an
afterthought, and not to have been called
to the attention of the court below. Givens
v. Zerbst, 255 U. S. 11, 41 Sup. Ct. Rep.
227,
65:475
Review of facts.

On writ of error to state court, see supra, 36.

See also supra, 41, 42.

58. The Federal Supreme Court on an appeal from a circuit court of appeals accepts the concurrent findings of facts of both courts below unless clear error is shown. Bodkin v. Edwards, 255 U. S. 221, 41 Sup. Ct. Rep. 268, 65: 595

59. In suits in equity a concurrent find ing by the two lower courts on a question of fact will be accepted by the Federal Supreme Court unless it be clear that their conclusion is erroneous. Geddes v. Anaconda Copper Min. Co. 254 U. S. 590, 41 Sup. Ct. Rep. 209. 65:425

60. Concurrent findings of fact by the two lower courts in an admiralty cause will not be disturbed by the Federal Supreme Court unless clearly erroneous. Piedmont & G. C. Coal Co. v. Seaboard Fisheries Co. 254 U. S. 1, 41 Sup. Ct. Rep. 1, 65:97

61. Findings of fact in an action at law tried without a jury cannot be reviewed by a circuit court of appeals in the exercise of its jurisdiction, under the Act of January 28, 1915, to review judgments and decrees of the Porto Rico courts. Ana Maria Sugar Co. v. Quinones, 254 U. S. 245, 41 Sup. Ct. Rep. 110, 65:246 What errors warrant reversal. See also supra, 57.

55. Jurisdiction of a direct writ of error 62. A decision of the highest court of from the Federal Supreme Court to a dis- New York that the exemption from taxatrict court once having attached, because tion above a specified sum, granted to the of the presence of a constitutional question, Troy Union Railroad Company by N. Y. continues for the purpose of disposing of Laws 1853, chap. 462, could be repealed other questions raised in the record, al- without impairing contract obligations, canthough the constitutional question has since not be said to be wrong, in view of the been decided in another case to be without general attitude of the courts toward claims merit. Jin Fuey Moy v. United States, 254 of exemption, adverted to by the state U. S. 189, 41 Sup. Ct. Rep. 98, 65: 214 court, and of the fact that a subsequent Question not raised below. agreement shows that the parties concerned did not suppose that they had an irrevocable grant, and especially the fact that the state Constitution in force in 1853 provided in art. 8, § 1, that all general laws and special acts passed pursuant to that section might be altered or repealed. New York ex

Errors not assigned, see supra, 38, 39. 56. Rulings of the supreme court of Porto Rico on the measure of damages, which were not assigned as errors in the circuit court of appeals, and were not considered by it, cannot be insisted upon in

rel. Troy Union R. Co. v. Mealy, 254 U. S. | any wrong, it was of such a purely formal 47, 41 Sup. Ct. Rep. 17, 65: 123 character as not to afford, since the Act of February 26, 1919, a basis for reversing the judgment of the lower court. Horning v. District of Columbia, 254 U. S. 135, 41 Sup. Ct. Rep. 53, 65: 185

67. It is error for the court of claims to refuse appropriate requests for additional findings directed to the crucial point in the case as to which the facts, as found, are inconclusive. Winton v. Amos, 255 U. S. 373, 41 Sup. Ct. Rep. 342, 65: 684

68. If the reasons given by the court of claims for rejecting on the merits certain requests for additional findings which, in its discretion, the court might have rejected, because filed more than the prescribed time after judgment, show that the court to some extent misapprehended the nature of the main issue and the bearing of the requested findings thereon, it cannot be said that, had it not done so, it would have rejected the requests because not filed in due season. Winton v. Amos, 255 U. S. 373, 41 Sup. Ct. Rep. 342, 65: 684 VIII. Judgment.

pra, VI.

63. Error in permitting the British Ambassador to intervene as amicus curiæ in a suit in admiralty for damages for a shipowner's failure to furnish a vessel, as agreed in the charter party, and present a certificate that the requisition of such ship by the British government for war use was a governmental act, could not prejudice the libellant where the intervention and certificate ultimately were not considered, and the decree was rested on the evidence otherwise presented. Texas Co. v. Hogarth Shipping Corp. 256 U. S. 619, 41 Sup. Ct. Rep. 612, 65: 1123 64. It is reversible error to charge the jury in a threefold damage suit founded on an alleged contract, combination, or conspiracy to maintain resale prices, contrary to the Sherman Anti-trust Act of July 2, 1890, that, if they find that defendant manufacturer indicated a sales plan to wholesalers and jobbers, which plan fixed the price below which the wholesalers and jobbers were not to sell to retailers, and find that defendant called this particular feature of this plan to their attention on Dismissal or affirmance on motion, see sumany different occasions, and find a great majority of them not only expressing no dissent from such plan, but actually cooperating in carrying it out by themselves selling at the prices named, they may reasonably find from such fact that there was an agreement or combination forbidden by the statute. Frey & Son v. Cudahy Packing Co. 256 U. S. 208, 41 Sup. Ct. Rep. 451, 65: 892 65. A judgment of the highest court of a state, which affirmed a judgment of the trial court in favor of plaintiff in an action under the Federal Employers' Liability Act of April 22, 1908, in which the trial court refused to instruct the jury that the effect of the assumption of risk by such employee, incident to the use of a defective claw bar, and the circumstances under which it was used, was to relieve defendants from liability for the resulting injury, amending such instruction by adding that such fact is to be considered by the jury in determining the amount of plaintiff's recovery, if any, under all of the instructions, must be reversed by the Federal Supreme Court where such refusal and modification were assigned as error in the highest state court, and that court considered and decided that the fact was of no determining importance, and, if it existed, constituted only contributory negligence, and could operate only in reduction of the amount of recovery, not to defeat recovery. Pryor v. Williams, 254 U. S. 43, 41 Sup. Ct. Rep. 36, 65: 120

66. A Federal judge did not commit reversible error, in a criminal case in which the undisputed facts, as testified to by both the witnesses for the government and the defendant, show the latter's guilt, in telling the jury in effect to find the defendant guilty, so long as the jury was allowed the technical right to decide against the law and the facts. If the defendant suffered

69. A final judgment for defendant which the circuit court of appeals, having reversed the judgment below in favor of plaintiff, entered after the plaintiff reserved its right of review in the Supreme Court, waived a new trial, and consented to the entry of final judgment for defendant, must be affirmed by the Federal Supreme Court if any of the errors assigned and relied upon in the circuit court of appeals was well taken. Frey & Son v. Cudahy Packing Co. 256 U. S. 208, 41 Sup. Ct. Rep. 451,

65: 892

70. A judgment denying relief by habeas corpus to a person imprisoned under sentence of a court-martial will not be disturbed on appeal on the theory that the accused was not shown to have had a military status, where the documentary evidence admitted by the court below to establish such status either is not in the record, because of the form of the præcipe of the appellant, thus depriving the appellate court of the means of examining the conclusion of the court below in that respect, or, if in the record, though not referred to in the præcipe, abundantly sustains the conclusions which the court below based upon it, and therefore makes clear the existence at the time of the trial of a military status in the accused adequate to sustain the jurisdiction of the court-martial. Givens v. Zerbst, 255 U. S. 11, 41 Sup. Ct. Rep. 227. 65: 475

71. The Federal Supreme Court, though unable to consider the merits of a case, owing to the moot character of the issues involved, is at liberty to make such order as is consonant to justice, in view of the conditions and circumstances of the case. Heitmuller v. Stokes, 256 U. S. 359, 41 Sup. Ct. Rep. 522,

65:990

Remanding; directions to lower court. sary to pay death losses up to the time,

IX. Liability on appeal bond. See also supra, 80. 65:314 81. Jurisdiction to grant restitution by a gas company to consumers for rates collected from them in excess of the limit fixed by an ordinance, pending its suspension by injunction in a suit attacking them as confiscatory, under a bond to secure repayment if the ordinance is upheld, can