routes on a given railway, is a readjustment denied by the Act of August 24, 1912, § 4, which provides that "when, after a weighing of the mails for the purpose of readjusting the compensation for their transportation on a railroad route, mails are diverted therefrom or thereto, the Postmaster General may, in his discretion, ascertain the effect of such diversion by a weighing of such mails for such number of successive working days as he may determine, and have the weights stated and verified to him as in other cases, and readjust the compensation on the routes affected accordingly: Provided, That no readjustment shall be made unless the diverted mails equal at least 10 per centum of the average daily weight on any of the routes affected." Missouri, K. & T.. R. Co. v. United States, 256 U. S. 610, 41 Sup. Ct. Rep. 617,


65: 1118

Estate tax on testamentary execution of power of appointment, see Internal Revenue, 20.

1. The existence of a power of appointment does not, in itself, vest any estate in the donee. United States v. Field, 255 U. S. 257, 41 Sup. Ct. Rep. 256, 65: 617

2. Where the donee of a power of ap pointment dies indebted, having executed the power in favor of volunteers, the appointed property is treated as equitable, not legal, assets of his estate, and, in the absence of statute, if it passes to the executor at all, it does so, not by virtue of his office, but as a matter of convenience, and because he represents the rights of creditors. United States v. Field, 255 U. S. 257, 41 Sup. Ct. Rep. 256, 65: 617

3. Creditors of the donee of a power of appointment can lay claim to the appointed estate, where the power is executed, only to the extent that the donee's own estate is insufficient to satisfy their demands. United States v. Field, 255 U. S. 257, 41 Sup. Ct. Rep. 256, 65: 617 4. In the absence of statute, creditors of the donee of a power of appointment have no redress in case of a failure to execute the power. United States v. Field, 255 U. S. 257, 41 Sup. Ct. Rep. 256, 65: 617 5. Whether a power of appointment be or be not exercised, the property that was subject to appointment is not subject to distribution as part of the estate of the donee. If there be no appointment, it goes according to the disposition of the donor. If there be an appointment to volunteers, then, subject to whatever charge creditors may have against it, it goes not to the next of kin or the legatees of the donee, but to his appointees under the power. United States v. Field, 255 U. S. 257, 41 Sup. Ct. Rep. 256, 65: 617 PREJUDICE.

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1. The United States, as successor in interest to the Mexican government, acquired no right to use, without compensation, for national defense or security, the land embraced in a Mexican grant giving the grantee the right to inclose the land "without prejudice to the crossings, roads, and servitudes," merely because the grant was under a Mexican law of August 18, 1824, by the 5th section of which "if, for the defense or security of the nation, the Federal government should find it expedient to make use of any portion of these lands for the purpose of constructing warehouses, arsenals, or other public edifices, it may do so, with the approbation of the general Congress, or during its recess with that of the government council," since it is hardly credible that this section should have been intended to reserve the right to displace private owners, and wholly incredible that it reserves the right to do so without compensation,-especially in view of the fact that, by a law of April 6, 1830, the value of lands taken for fortification, etc., is to be credited to the states. United States v. Coronado Beach Co. 255 U. S. 472, 41 Sup. Ct. Rep. 378, 65: 736

2. Jurisdiction of a Federal district court to confirm a Mexican grant with boundaries including tidelands was not lost merely because California, in which the lands are situated, became a state before the decree was rendered, since the title of the state to submerged lands was subject to prior Mexican grants, and whether there was such a prior grant, and what were its boundaries, were questions to be decided in

the proceedings for confirmation, and there, was jurisdiction to decide them as well if the decision was wrong as if it was right. The title of California was in abeyance until those issues were determined, as the decree related back to the date of the orig inal grant. United States v. Coronado Beach Co. 255 U. S. 472, 41 Sup. Ct. Rep. 378, 65: 736 3. A decree of a Federal district court confirming a Mexican grant with boundaries including tidelands, followed by the issuance of a patent covering such lands, is conclusive against the United States on the question whether the grant included such lands, and neither the decree nor the patent may be collaterally attacked. Unit

ed States v. Coronado Beach Co. 255 U. S. 472, 41 Sup. Ct. Rep. 378, 65: 736

PRIVILEGES AND IMMUNITIES. Abridgment of, see Constitutional Law, III.


See Writ and Process.


Appellate jurisdiction in suit under
Lever Act, see Appeal and Error, 9.
Validity of Lever Act, see Criminal
Law, 2, 3.

1. The price at which a commodity is sold is comprehended by the provision of the Lever Act of August 10, 1917, § 4, as re-enacted by the Act of October 22, 1919, § 2, making it unlawful for any person wilfully to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries, or to conspire to exact excessive prices for any necessaries. United States v. L. Cohen Grocery Co. 255 U. S. 81, 41 Sup. Ct. Rep. 298, 65: 516 Tedrow v. A. T. Lewis & Son Dry Goods Co. 255 U. S. 98, 41 Sup. Ct. Rep. 303,


65: 524 Kinnane v. Detroit Creamery Co. 255 U. S. 102, 41 Sup. Ct. Rep. 304, 65: 531 C. A. Weed & Co. v. Lockwood, 255 U. 104, 41 Sup. Ct. Rep. 305, 65: 532 G. S. Willard Co. v. Palmer, 255 U. S. 106, 41 Sup. Ct. Rep. 305, 65: 534 Oglesby Grocery Co. v. United States, 255 U. S. 108, 41 Sup. Ct. Rep. 306, 65: 535 2. The exaction of excessive prices upon the sale of necessaries, contrary to the provisions of the Lever Act of August 10, 1917, § 4, as re-enacted in the Act of October 22, 1919, § 2, was, where such sale was subsequent to the latter act, penalized by the provision of the re-enacted section, making violations of any of the provisions of such section punishable by fine or imprisonment, although the section, before its re-enactment, contained no penalty. United States v. L. Cohen Grocery Co. 255 U. S. 81, 41 Sup. Ct. Rep. 298, 65: 516 Tedrow v. A. T. Lewis & Son Dry Goods Co. 255 U. S. 98, 41 Sup. Ct. Rep. 303,

65: 524

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1. Power to issue writs of prohibition to the district courts when proceeding as courts of admiralty and maritime jurisdiction is, by the Judicial Code, § 234, specifically conferred on the Federal Supreme Court. Ex parte New York, 256 U. S. 490, 41 Sup. Ct. Rep. 588,

65: 1057

2. Neither prohibition nor mandamus will issue to prevent a Federal district court from exercising further jurisdiction, and to compel it to undo what has been done in a suit in admiralty in which the question of the jurisdiction of that court is an open one and of uncertain solution. Re Hussein Lufti Bey, 256 U. S. 616, 41 Sup. Ct. Rep. 609, 65: 1122

3. Prohibition or mandamus will not Issue to prevent a Federal district court to compel it to undo what has been done, in from exercising further jurisdiction, and

a suit in admiralty against a British steamship privately owned, in which a mere suggestion, unsupported by proof, was presented on behalf of the British Embassy by private counsel appearing as amici curiæ, that the vessel libeled was in the public service and under the control of the British government as an admiralty transport, where the suit is still in the interlocutory stage, and the status of the vessel is at best doubtful and uncertain, both as matter of fact and in point of law. Re Muir, 254 U. S. 522, 41 Sup. Ct. Rep. 185, 65: 383

4. A writ of prohibition to prevent a lower court from wrongfully assuming jurisdiction of a party, of a cause, or of some collateral matter arising therein, will ordinarily be granted to one who at the outset objected to the jurisdiction, has preserved his rights by appropriate procedure, and has no other remedy, but if the jurisdiction of the lower court is doubtful, or depends upon a finding of fact made upon evidence which is not in the record, or if the complaining party has an adequate remedy by appeal or otherwise, the writ will ordinarily be denied. Re Chicago, R. I. & P. R. Co. 255 U. S. 273, 41 Sup. Ct. Rep. 288,

65: 631

5. Neither prohibition nor mandamus will be granted by the Federal Supreme Court to prevent a district court from assuming jurisdiction of the person of a nonresident corporation against which a personal liability is asserted in a cross bill filed in a suit for the appointment of a receiver of another corporation in default on its bonds, after the nonresident corporation appeared before a special master for the purpose of protecting its interest in such bonds, where the most that can be said

against the district court's jurisdiction is that it is in doubt, the return reciting that the order which declared that such nonresident corporation became a party rests upon evidence which has not been embodied in the record, and the district court obviously having jurisdiction to determine in the first instance whether such corporation had en tered a general appearance, and to determine whether the relief sought in the cross bill was in its nature germane to the proceedings theretofore instituted in the suit, so that the rights asserted in the cross bill could be properly litigated in that suit, and to determine whether the fact that such carlier proceeding had been instituted on behalf of such corporation, and that it had actively participated in the conduct thereof, and to that end had entered a general appearance, made it subject to further proceedings thereon by way of cross bill as fully as if the earlier action had been taken in its name as well as on its behalf. Re Chicago, R. I. & P. R. Co. 255 U. S. 273, 41 Sup. Ct. Rep. 288, 65: 631

6. The fact that the objection to the jurisdiction of the court below might be raised by appeal from the final decree is not, in all cases, a valid objection to the issuance of a writ of prohibition by the Federal Supreme Court at the outset, where a court of admiralty assumes to take cog nizance of matters over which it has no lawful jurisdiction. Ex parte New York, 256 U. S. 490, 41 Sup. Ct. Rep. 588,


grounds are subject, in Oklahoma, to special assessment for betterments from street improvement, notwithstanding a possible right of reverter in the Creek Nation. Choctaw, O. & G. R. Co. v. Mackey, 256 U. S. 531, 41 Sup. Ct. Rep. 582, 65: 1076 3. Mere insufficiency of description or other irregularity in a proceeding for a special assessment for a street improvement would not, in Oklahoma, entitle abutting owners to have the assessment declared void, but their rights, under Okla. Laws 1907-8, § 728, would be limited to having a reassessment made, conforming to the statutory regulations. Choctaw, O. & G. R. Co. v. Mackey, 256 U. S. 531, 41 Sup. Ct. Rep. 582, 65: 1076


Taking by condemnation proceedings, see Eminent Domain, 2.

Indian allotments, see Indians, 5-21. Limitation of suit to cancel patents, see Limitation of Actions.

Mandamus to Land Department, see Mandamus, 5-7.

Mines on, see Mines.

Private land claims, see Private Land Claims.

done all that is required under the law to 1. A claimant to public land who has perfect his claim acquires rights against the government, and his right to a legal title is to be determined as of that time, on the theory that, by virtue of his compliance with the requirements, he has an equitable title to the land and that the government Guaranty of right to, see Constitution- Mexico, 255 U. S. 367, 41 Sup. Ct. Rep. 333. holds it in trust for him. Payne v. New al Law, IV.



65: 1057

65: 680 2. The long-continued, practical construction by the Land Department of the

Of defect in safety appliance, see provision of the Act of May 14, 1880, that Master and Servant, 7.


Enjoining performance of municipal
contract, see Injunction, 3.
See also Public Improvements; United
States, 6-17.


Discrimination in, see Constitutional
Law, 14, 15.

Due process of law in, see Constitu-
tional Law, 51, 52.

1. The right of way and station grounds of a railroad in Oklahoma, which were granted by Congress, and which, through leasing, have become an integral part of through lines of a great railroad system, are not exempt from special assessment for a local improvement on the theory that, because among the public served by the railroad are some mines on land leased from the Choctaw Nation, such railroad is an instrumentality of the Federal government. Choctaw, O. & G. R. Co. v. Mackey, 256 U. S. 531, 41 Sup. Ct. Rep. 582,

65: 1076 2. A railway right of way and station

"in all cases where any person has contested, paid the land office fees, and procured the cancelation of any pre-emption, homestead, or timber-culture entry, he shall be

the district in which such land is situated notified by the register of the land office of of such cancelation, and shall be allowed thirty days from date of such notice to enter said lands," as giving a successful contestant, when, at the date of the notice, the land, by reason of an existing withdrawal, is not open to entry, thirty days after the land is restored to entry within, which to exercise his preferred right of entry,—will not be disturbed by the courts. McLaren v. Fleischer, 256 U. S. 477, 41 Sup. Ct. Rep. 577, 65: 1052 Culpepper v. Ocheltree, 256 U. S. 483, 41 Sup. Ct. Rep. 579, 65: 1054 Railroad land grants.

Rates of land-grant railroads, see Carriers, 19-22.

Enjoining action of Land Department,

see Injunction, 13.

3. The only exception to the general rule that the time as of which the character of public land-whether mineral or nonmineral-is to be determined is that when

selection was made is confined to railroad, Secretary of the Interior, and having comland grants. Wyoming v. United States. plied with the terms of such proposal, ac255 U. S. 489, 41 Sup. Ct. Rep. 393, 65: 742 quired a vested right in the selected lieu 4. The designation by section number, land which the officers of the Land Departtownship, and range, of a section of unsur-ment could not lawfully cancel or disregard veyed public land selected by a railway merely because the base tract-the one to company under the Act of March 2, 1899, which the right was waived-had, subsein lieu of land to be relinquished to the quent to such selection, been eliminated United States, describes the land with rea- from the reservation by a change in its sonable certainty, although it is 7 miles boundaries. Payne v. New Mexico, 255 U. from any known survey, if it may readily S. 367, 41 Sup. Ct. Rep. 333, 65: 680 be located from such survey. Edward Rutledge Timber Co. v. Farrell, 255 U. S. 268, 41 Sup. Ct. Rep. 328. 65: 623 5. The mere filing by the state of Idaho, under the Act of August 18, 1894, of an application for a survey, did not so far withdraw the lands from the public domain as to make ineffective a selection by a railway company under the Act of March 2, 1899, in lieu of lands relinquished to the United States,-especially where, if valid for any purpose, the application merely gave an option to select which was never exerted. Edward Rutledge Timber Co. v. Farrell, 255 U. S. 268, 41 Sup. Ct. Rep. 328, 65: 623

6. Indemnity selections under a rail road land grant, made in full compliance with the directions promulgated by the Secretary of the Interior, of lands subject to such selection, and based on actual loss within place limits adequate to sustain them, the railroad having been constructed and equipped as required by the granting act, and nothing remaining to be done by the grantee or its successor to fulfil the conditions of the grant and perfect the right to a patent, could not be defeated by a subsequent temporary withdrawal for a water-power site under the Act of June 25, 1910, made while such selections were as yet unapproved by the Secretary of the Interior. Payne v. Central P. R. Co. 255 U. S. 228, 41 Sup. Ct. Rep. 314, 65: 598

7. The temporary Executive withdrawal before survey, for possible addition to an existing forest reserve, of lands within the indemnity limits of the land grant to the Northern Pacific Railroad Company, made by the Act of July 2, 1864, as modified and supplemented by the Joint Resolution of May 31, 1870, could not cut off the railroad company's right, earned by the construction of the road, to select such lands as indemnity, where the losses in the place limits at the time of such withdrawal exceeded the available lands in the indemnity limits, and the company's purpose to claim the latter was asserted at the earliest opportunity. United States v. Northern P. R. Co. 256 U. S. 51, 41 Sup. Ct. Rep. 439, 65: 825 School grant.

9. A state, having accepted the proposal of Congress that, if any designated sections of public land passing under the school-land grant to the state should be included within a public reservation, it might waive its right to them, and select instead other vacant, unappropriated, nonmineral public land of equal acreage, under the direction of the Secretary of the Interior, and having complied with the terms of proposal, became invested with the equitable title to the selected land, and the Secretary of the Interior and the Commissioner of the General Land Office could not disapprove and reject such selection on the ground that the selected land was, two years later, included in a temporary executive withdrawal as possible oil land, under the Act of June 25, 1910, and still later was discovered to be mineral land, that is, to be valuable for oil. The validity of the selection must be determined according to the conditions as of the time when the waiver and selection were made. Wyoming v. United States, 255 U. S. 489, 41 Sup. Ct. Rep. 393, 65: 742

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PUBLIC UTILITIES COMMISSION. Exhausting remedy before, as condition precedent to suit, see Carriers, 17: Discrimination in rate-making order, see Constitutional Law, 27.

S. A state having accepted the proposal by Congress that, if any designated sections of public land passing under the schoolland grant to the state should be included A formal complaint and hearing before within a public reservation, the state might the commission are not conditions precedent waive its right to them and select instead to a suit in equity, brought under the Act other land of equal acreage, under the direc- of March 4, 1913, § 8, 64, by a person tion and subject to the approval of the interested and dissatisfied with rate-making

orders of the Public Utilities Commission preference to anyone else. Jackson V. of the District of Columbia, to have such Smith, 254 U. S. 586, 41 Sup. Ct. Rep. 200, orders declared void. Hollis v. Kutz, 255 65: 418

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As carriers, see Carriers.
Services for government, see Carriers,

Enjoining removal of railroad from
streets, see Injunction, 1.
Injury to employees, see Master and

Foreclosure of railroad mortgage, see

Compensation for carrying mail, see
Postoffice, 5-9.
Assessment of railroad property for
public improvement, see Public
Improvements, 1, 2.
Land grants to, see Public Lands, 3-7.
State taxation of railroad under Fed-
eral control, see Taxes, 5.
Trust in railroad property, see Trusts.


Of carrier, see Carriers, 17-23. Due process of law in rate regulation, see Constitutional Law, 58-62. Municipal power to contract respecting, see Public Utilities.

Attack on rate order of Public Utilities Commission, see Public Utilities Commission.

Street railway rates, see Street Railways, 4-7.


Of constitutional amendment, see Constitutional Law, I.


Mortgage on, see Mortgage.
Powers as to, see Powers.
As to public lands, see Public Lands.
Trust in, see Trusts.


Priority of state as creditor, see
States, 2-4.

1. An agreement by the receiver of a building association with his attorney and a third person to join in the purchase of property at a public sale by the trustee under a deed of trust securing a debt to the association, in case such third person should become the successful bidder, is such a violation of his obligations as a fiduciary as renders him and his associates jointly and severally liable to the trust estate for all the profits resulting from the purchase, although the estate may not have been injured thereby, the sale having been fairly conducted, with competitive bidding, and without improper influence to prevent competition or to close competitive bidding, or to bring about a sale to the purchaser in

2. A receiver appointed by a Federal court takes property subject to all liens, priorities, or privileges existing or accruing under the laws of the state. Marshall v. New York, 254 U. S. 380, 41 Sup. Ct. Rep. 143, 65: 315

RECORD AND RECORDING LAWS. Record on appeal, see Appeal and Error, IV.


Of trademark, see Trademark, 5. REHEARING.

Raising Federal question on, see Appeal and Error, 25.


A claim against a member of a bankrupt firm of stockbrokers for money advanced by the claimant to such partner to enable the latter to buy a seat in the New York Stock Exchange (which remained the individual property of such partner), and to pay his initiation fee, is barred by a release executed in good faith, as required by the rules of the Exchange, of all claims on account of such advance, and it is immaterial that interest was paid on the sum advanced until the bankruptcy. Atwater v. Guernsey, 254 U. S. 423, 41 Sup. Ct. Rep. 150,


65: 339

Election of, see Election of Remedies. REMOVAL OF CAUSES. Mandamus to vacate order remanding cause to state court, see Mandamus, 4.

1. The interest which the state of Washington has in the result of a suit by the Port of Seattle-a municipal corporation to quiet the title of the state to tidelands as against a foreign corporation claiming, as grantee from the state, the right to wharf out to the navigable channel, does not prevent the removal of the cause to a Federal district court for diverse citizenship, since the Port had both the power and the duty to bring suit to protect the interests involved, and had an independent direct financial interest in the result, a statute providing for the payment by abutting owners, in the nature of a rental, for a permit to use parts of the waterway in the erection of wharves, docks, or other structures, and requiring that a specified portion of such rental be paid to the county for the use of the Port. Seattle v. Oregon & W. R. Co. 255 U. S. 56, 41 Sup. Ct. Rep. 237, 65: 500

2. A suit in which the principal defendant was incorporated under the laws of the United States is removable from a state to а Federal district court. American Bank & T. Co. v. Federal Reserve Bank, 256 U. S. 350, 41 Sup. Ct. Rep. 499,

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