bia v. R. P. Andrews Paper Co. 256 U. S
582, 41 Sup. Ct. Rep. 545,
65: 1103
Invalid in part.

10. A single excise tax imposed upon the sale and use of gasolene according to the number of gallons sold and used, while in valid so far as the gasolene is sold in the tank cars or other original packages in which the gasolene was brought into the state, is enforceable to the extent that it imposes the tax upon gasolene sold at retail in quantities to suit customers, not in the original packages. Bowman v. Continental Oil Co. 256 U. S. 642, 41 Sup. Ct. Rep. 606, 65: 1139

11. The invalidity as respects interstate
commerce of the annual license tax imposed
by N. M. Laws 1919, chap. 93, upon gaso-
lene distributing stations or places of busi-
ness, with a prohibition against further
conduct of the business without making the
required payment, renders the tax unen-
forceable also as to the domestic commerce
of a dealer who conducts his interstate and
domestic business indiscriminately at the
same stations and by the same agencies.
Bowman v. Continental Oil Co. 256 U. S.
642, 41 Sup. Ct. Rep. 606,
65: 1139

Implied repeal of venue provision of
Interstate Commerce Act, see

Courts, 18.

Implied repeal of Indian Allotment Acts,
see Indians, 10.
Implied repeal of revenue laws by Na-
tional Prohibition Act, see Internal
Revenue, 26.

12. Existing penal statutes are repealed
by later ones covering practically the same
acts, but fixing lesser penalties. United
States v. Yuginovich, 256 U. S. 450, 41 Sup.
Ct. Rep. 551.
65: 1043

13. Where provisions of a statute had, previous to their re-enactment, a settled significance, that meaning will attach to them in the absence of plain implication to the contrary. Heald v. District of Columbia, 254 U. S. 20, 41 Sup. Ct. Rep. 42,


(Annotated) 65: 106

1. A stipulation executed by the Passaic Valley Sewerage Commissioners under sanction of a special act of the New Jersey legislature, and entered of record by the state's special counsel in a suit in the Federal Supreme Court, must be regarded as a valid obligation of the state as certainly as of the commisioners. New York v. New Jersey, 256 U. S. 296, 41 Sup. Ct. Rep. 492, 65: 937

2. The Federal government having properly intervened in a suit begun by the state of New York in the Federal Supreme Court, to enjoin the state of New Jersey and its sewerage commissioners from discharging a large volume of sewage into the waters of upper New York bay, which, it is alleged, will cause such pollution of the waters of New York bay as to amount to a public nuisance which will result in grave injury

to the health, property, and commercial
welfare of the people of the state and city
of New York, it was within the authority of
the Attorney General to agree that the
United States should retire from the case
upon terms stated in a stipulation on behalf
of the state of New Jersey, which were
plainly approved by the Secretary of War,
who afterward embodied them in a construc-
tion permit issued to the sewerage commis-
sioners. New York v. New Jersey, 256 U.
S. 296, 41 Sup. Ct. Rep. 492,
65: 937

See Corporations.


Municipal election authorizing acquisition of street railway and issue of bonds, see Bonds.

Taxation of franchise as affecting inter

state commerce, see Commerce, 16. Requiring removal of street railway

tracks from city streets as afford

ing due process of law, see Constitutional Law, 39-41.

Due process of law in rate regulation, see Constitutional Law, 58-61. Federal jurisdiction of suit to enjoin municipal rate regulation, see Courts, 19.

Estoppel to deny extension of street railway franchise, see Estoppel, 4.


1. Street railway construction and operation under day-to-day arrangements with the municipality by which continued operation was permitted, notwithstanding the expiration of franchise rights, could give the street railway company no extended franchise in the streets, where it was expressly provided that the permits granted might be revoked, and that action under the day-to-day agreement should not waive the rights of either party. Detroit United R. Co. v. Detroit, 255 Ŭ. S. 171, 41 Sup. Ct. Rep. 285, 65: 570

2. An ordinance looking to the continued operation, for a limited period, of a street railway system after the franchises had expired, which, by its express terms, provided for amendment or repeal, and that, unless amended or repealed, such ordinance should remain in force for the period of one year, could not, after that period, give any rights to the street railway company in the streets where the franchises have expired. Detroit United R. Co. v. Detroit, 255 U. S. 171, 41 Sup. Ct. Rep. 285,

65: 570

3. A decree intended only to provide a temporary arrangement by which cars might be operated by a street railway company on streets where its franchises have expired, could give no extended franchises in such streets, where it is expressly stated in such decree that it did not affect any fundamental rights of the parties in and to the city streets as they had at that time existed, the intention being to provide for the rate of fare at which cars should be


Allotment of justices, see ante, p. 4.

operated, and the decree being considered SUPREME COURT OF THE UNITED only a temporary solution of the problem before the court. Detroit United R. Co. v. Detroit, 255 U. S. 171, 41 Sup. Ct. Rep. 285, 65: 570 Rates.

4. A municipal corporation in Texas could not, after the adoption of Tex. Const. 1876, § 17, which provides that no irrevocable or uncontrollable grant of special privileges or immunities shall be made, but that all privileges and franchises granted by the legislature, or created under its authority, shall be subject to the control thereof, contract with a public service corporation as to street railway fares, so as to permit their enforcement if they are so low as to be confiscatory. San Antonio v. San Antonio Public Service Co. 255 U. S. 547, 41 Sup. Ct. Rep. 428, 65: 777

5. A franchise ordinance fixing street railway fares which could not, under the existing state Constitution, be a contract, did not become such upon subsequent amendment of the state Constitution, broadening the municipality's powers. San Antonio v. San Antonio Public Service Co. 255 U. S. 547, 41 Sup. Ct. Rep. 428, 65: 777

6. No unilateral contract or condition could result from the granting of a street railway franchise which would bind the street railway company to the franchise rates, though confiscatory, where the municipality was without power to contract away its authority to regulate rates. San Antonio v. San Antonio Public Service Co. 255 U. S. 547, 41 Sup. Ct. Rep. 428,

Appellate jurisdiction of, see Appea! and Error, II. b.

Rules of, see Rules of Courts.


Injunction in suits between states, see
Injunction, 4, 5.

Mandamus from, see Mandamus, 4.
Prohibition over, see Prohibition.
Right of state to maintain suit, see
States, 5.

a suit

1. The Federal Supreme Court has original jurisdiction over a suit in equity brought by the United States against one of the states to determine the boundary between such state and a territory of the United States. Oklahoma v. Texas, 256 U. S. 70, 41 Sup. Ct. Rep. 420, 65: 831 2. That the Federal Supreme Court has jurisdiction over the parties to brought by the United States against one of the states to determine the boundary between such state and a territory of the United States is obvious where the suit was brought in behalf of the United States in pursuance of an act of Congress, a bill of complaint and an amended bill were filed, to each of which the state demurred and also answered, the United States filed a replication, and both parties introduced evidence and participated in the hearing. Oklahoma v. Texas, 256 U. S. 70, 41 Sup. Ct. Rep. 420, 65: 831


3. Original suit restored to docket to afford an opportunity for the taking of supplemental proof deemed necessary to an adequate consideration and disposition of the cause. North Dakota v. Minnesota, 256 U. S. 220, 41 Sup. Ct. Rep. 533, 65: 899

65: 777 7. Limitations by contract upon the power of a municipality to regulate street railway rates are not to be implied, so as to permit the continued enforcement of rates fixed by franchise ordinance which are so low as to be confiscatory. San SYMPATHETIC STRIKE. Antonio v. San Antonio Public Service Co. 255 U. S. 547, 41 Sup. Ct. Rep. 428,


Injunction against, see Injunction, 10.

65: 777 TAXES.

As governmental function, see Municipal Corporations, 2.


Injunction against sympathetic strike, see Injunction, 10.


See United States, 5.


See Taxes, 12.


Right of, see Elections.

As affecting interstate commerce, see Commerce.

Discrimination in taxation, see Constitutional Law, 12-17.

Notice and hearing as essential to due process of law, see Constitutional Law, 66.

Injunction against illegal tax, see Injunction, 2.

Federal taxation, see Internal Revenue. As to license generally, see License. Who may attack validity of taxing statute, see Statutes, 3, 4. Construction of taxing statute, see Statutes, 5.

1. The name by which a tax is described in the statute imposing it is immaterial. Its character must be determined by its incidents. Dawson v. Kentucky Distilleries & As defense to action on life insurance Wareh. Co. 255 U. S. 288, 41 Sup. Ct. Rep.


policy, see Insurance.


Duty on, see Duties.

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In license tax, see License, 3.
Who may attack validity of statute, see
Statutes, 4.

2. The so-called annual license tax of 50 cents a gallon upon all whisky either withdrawn from bond or transferred in bond from the state to a point outside such state, which is imposed by Kentucky Act of March 12, 1920, upon every person engaged in the business of manufacturing whisky, or in the business of owning and storing the same in bonded warehouses within the state, is a property tax,-not an occupation or license tax, and as such is invalid under Ky. Const. § 171, not being uniform upon all property of the same class subject to taxation. Dawson v. Kentucky Distilleries & Warehouse Co. 255 U. S. 288, 41 Sup. Ct. Rep. 272, 65: 638

3. The selection by the state of such a commodity as gasolene, as distinguished from other commodities, in order to impose an excise upon its sale and use, is not forbidden by the provisions of N. M. Const. art. 8, § 1, that "taxes levied upon tangible property shall be in proportion to the value thereof, and taxes shall be equal and uniform upon subjects of taxation of the same class," where the tax in question operates impartially upon all, and with territorial uniformity throughout the state. Bowman v. Continental Oil Co. 256 U. S. 642, 41 Sup. Ct. Rep. 606, 65: 1139

erty in Oklahoma to general taxation. Choctaw, O. & G. R. Co. v. Mackey, 256 U. S. 531, 41 Sup. Ct. Rep. 582, 65: 1076 On domestic corporation.

8. The franchise tax imposed upon domestic corporations by Mo. Laws 1917, pages 237-242, must, in case of a corporation employing only a part of its capital within the state, be deemed to be intended to be measured by the proportion of capital stock and surplus within the state, although the statute says that "such corporation shall pay an annual franchise tax equal to 340 of 1 per cent of its capital stock employed in this state," since these words follow words laying the normal tax measured by stock and surplus, and the ́ sentence quoted continues: "And for the purposes of this act, such corporation shall be deemed to have employed in this state that proportion of its entire outstanding capital stock and surplus that its property and assets in this state bear to all its property and assets, wherever located." Louis-San Francisco R. Co. v. Middlekamp, 256 U. S. 226, 41 Sup. Ct. Rep. 489, 65: 905 Exemptions.


9. Federal land banks and joint stock land banks, having been created by Congress in the exercise of its legitimate authority by the Federal Farm Loan Act of July 17, 1916, as amended by the Act of January 18, 1918, the power to make the farm loan bonds issued by them under the authority of those acts on the security of farm mortIm-gages and notes exempt as to principal and interest from Federal, state, municipal, and local taxation necessarily follows. Smith v. Kansas City Title & T. Co. 255 U. S. 180, 41 Sup. Ct. Rep. 243, 65: 577 Assessment.

Federal agency or instrumentality. Liability of Federal instrumentality to local assessment, see Public provements, 1.

4. The mere fact that property is used, among others, by the United States as an instrument for effecting its purpose, does not relieve such property from state taxation. Choctaw, O. & G. R. Co. v. Mackey, 256 U. S. 531, 41 Sup. Ct. Rep. 582, 65: 1076

5. The fact that a domestic railway company was under Federal control during the tax year does not exonerate it from a state franchise tax. St. Louis-San Francisco R. Co. v. Middlekamp, 256 U. S. 226, 41 Sup. Ct. Rep. 489, 65: 905 National bank shares.

6. A state tax upon bank stock, state and national, at a higher rate than is imposed upon intangible personal property in general, including bonds, notes, and other evidences of indebtedness, violates the provisions of U. S. Rev. Stat. § 5219, that state taxation of shares in national banks "shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state," where moneyed capital in the hands of individuals, invested in bonds, notes, and other evidences of indebtedness, comes into competition, relatively material in amount, in the loan market, with the moneyed capital of national banks. Merchants' Nat. Bank v. Richmond, 256 U. S. 635, 41 Sup. Ct. Rep. 619, 65: 1135

Indian lands.

7. The mere fact that there is a possible right of reverter in the Creek Nation does not preclude subjecting railway prop

10. The board of assessors when increasing the valuation of property returned for taxation is not required, by Ga. Laws 1913, p. 123, §§ 6 and 7, to give any notice to the tax payer, nor is opportunity given him to be heard as of right before the assessment is finally made against him, but provision is made for notice of the assessment to the tax payer after it is made, and in the event of his dissatisfaction an arbitration is to afford a hearing, this hearing being all that the statute contemplates that the tax payer shall have. Turner v. Wade, 254 U. S. 64, 41 Sup. Ct. Rep. 27, 65: 134 Double taxation.

11. The supposed prohibition against double taxation in the Missouri Constitution was not violated by the provision of Mo. Laws, 1917, pp. 237-242, imposing a franchise tax upon domestic corporations equal to a specified per cent of its capital stock employed in the state. St. Louis San Francisco R. Co. v. Middlekamp, 256 U. S. 226. 41 Sup. Ct. Rep. 489, 65: 905 Inheritance tax.

Following decision below as to inherit-
ance tax, see Appeal and Error, 33.
Discrimination in, see Constitutional
Law, 16.

Due process of law in, see Constitu-
tional Law, 48.


Deduction from Federal estate tax, see
Internal Revenue, 22.

Federal estate tax, see Internal Reve-, nels. . . All officers, operators, and employees will continue in the performance of their present duties, reporting to the same officers as heretofore and on the same terms of employment," does not leave the telegraph company open to suit for damages resulting from negligent delay in the transmission of a message while under government control. Western U. Teleg. Co. v. Poston, 256 U. S. 662, 41 Sup. Ct. Rep. 598, 65: 1157

12. A property tax cannot be said to be imposed by a state statute exacting an additional transfer tax upon certain bonds and other obligations held by a resident decedent at his death, upon which neither the general property tax nor an optional stamp tax has been paid for a fixed period, merely because the existence of the statute may induce the owners of such property to present it for taxation, nor can the law be deemed to impose a penalty merely because the decedent's estate may, under it, be required to pay more for taxes than the deceased would have paid if he had presented his property for taxation. Watson v. State Comptroller, 254 U. S. 122, 41 Sup. Ct. Rep. 65: 170



Municipal license tax on telegraph com-
pany as affecting interstate com-
merce, see Commerce, 19.
Imposing special burden on telegraph
company as affording due process
of law, see Constitutional Law, 34.

Government operation.

1. A telegraph company is not liable for damages resulting from negligent delay in delivering a message while its telegraph system was, pursuant to the joint resolution of Congress of July 16, 1918, and the proclamation of the President of July 22, 1918, in the exclusive possession and control of the Federal government, and was being operated by the Postmaster General. Western U. Teleg. Co. v. Poston, 256 U. S. 662, 41 Sup. Ct. Rep. 598, 65: 1157

4. The provision in the contract of October 9, 1918, between the Postmaster General and the Western Union Telegraph Company, that "the Postmaster General shall pay, or save the owner harmless from, all expenses incident to or growing out of the possession, operation and use of the property taken over during the period of Federal control. He shall also pay or save the owner harmless from all judgments or decrees that may be recovered or issued against, and all fines and penalties that may be imposed upon it by reason of any cause of action arising out of Federal control or anything done or omitted in the possession, operation, use or control of its property during the period of Federal control, except judgments or decrees founded on obligations of the owner to the Postmaster General of the United States," merely provides indemnity, and does not make the company liable for damages re sulting from negligent delay in delivering a message while under government control. Western U. Teleg. Co. v. Poston, 256 C. S. 662, 41 Sup. Ct. Rep. 598, 65: 1157 Messages.

Mental anguish as damages, see Damages, 2.

Burden of proof as to motive of transmitting message outside state, see Evidence, S.


2. The provision in the proclamation of the President of July 22, 1918, taking Since the amendment of June 18, over the telegraphs, that "until and except 1910, to the Interstate Commerce Act, so far as said Postmaster General shall bringing telegraph and cable companies from time to time by general or special within the operation of that act, and proorders otherwise provide, the owners, man-viding that telegraph and cable messages agers, board of directors, receivers, officers, and employees of the various telegraph and telephone systems shall continue the operation thereof in the usual and ordinary course of the business of said systems, in the names of their respective companies, associations, organizations, owners, or manager, as the case may be," does not leave the telegraph companies open to suit for damages resulting from negligent delay in the transmission of a message while under government control. This provision is in no way inconsistent with holding that the President took possession of and operated the telegraph systems, as distinguished from taking over the companies and operating them. Western U. Teleg. Co. v. Poston, 256 U. S. 662, 41 Sup. Ct. Rep. 598. 65: 1157

3. The Postmaster General's order of August 1, 1918, that "until further notice, the telegraph and telephone companies shall continue operation in the ordinary course of business through regular chan

may be classified into day, night, repeated.
unrepeated, letter, commercial, press, gov
ernment, and such other classes as are just
and reasonable, and different rates be
charged for the different classes of mes-
sages, the sender of an unrepeated cable-
gram from a foreign country is, without
assent in fact, bound as a matter of law
by the provision in the company's lawfully
established tariff, limiting liability for mis-
take in transmission of unrepeated cable-
grams to the amount of the company's
share of the tolls collected, where such tar-
iff offers alternative rates for repeated and
unrepeated cable messages, since any devia-
tion from the lawful rate would violate the
statutory requirement of equality and uni-
formity of rates. Western U. Teleg. Co. v.
Esteve Bros. & Co. 256 U. S. 566, 41 Sup.
Ct. Rep. 584,
65: 1094

6. Any, liabilty to the addressee of a telegram which might arise because of the motive with which the telegraph company transmitted the message between two points

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2. The right of plaintiff to equitable relief against infringement of his trademark, where that is contested on


ground of his own fraudulent misrepre sentations to the public, must be judged by the facts as they were when the suit was begun, not by the facts of a different condition and an earlier time. Coca-Cola Co. v. Koke Co. 254 U. S. 143, 41 Sup. Ct. Rep. 113, 65: 189

3. The right to relief against palpable fraud by imitation of a trademark for a beverage will not be denied on the ground that the beverage itself had formerly been sold under the false representation that it contained cocaine after that element had been eliminated, where all such deception had ceased before the suit was brought, and the public had been warned by advertising that it must not expect to find that drug in it, merely because of the possibility that, here and there, an ignorant person might call for the drink with the hope of incipient cocaine intoxication. Coca-Cola Co. v. Koke Co. 254 U. S. 143, 41 Sup. Ct. Rep. 113, 65: 189 4. The continued use of the trademark Coca-Cola and a label containing a picture of coca leaves and cola nuts, in connection with a beverage which originally contained cocaine, but in which coca leaves are now used only after they have been subjected to a drastic process that removes from them every characteristic substance except a little

tannin and still less chlorophyl, and whatever of cola nut is employed furnishes but a small part of the caffein that is now the only element having appreciable effect, is not such misrepresentation as debars the owner of the trademark, which has acquired a secondary significance, indicating his product alone, from equitable relief against infringers, where, whatever may have been true of earlier advertising, the public is now told that it must not expect and will not find cocaine, and everything tending to suggest cocaine effects except the name and the picture of the leaves and nuts has been eliminated. Coca-Cola Co. v. Koke Co. 254 U. S. 143, 41 Sup. Ct. Rep. 113, 65: 189

5. Both the account of profits and the damages in a suit for the infringement of a registered trademark, brought in a Federal district court without diversity of citizenship, are limited to the date when notice was given of the registered mark, by the Trademark Act of February 20, 1905, § 28, which makes it the duty of the registrant to give notice to the public by attaching certain specified words or abbreviations to the trademark, or to the receptacle wherein the article is inclosed, and

provides that "in any suit for infringement by a party failing so to give notice of registration no damages shall be recovered except on proof that the defendant was duly notified of infringement and continued the same after such notice," notwithstanding an earlier notice calling on the defendant "to discontinue the unfair competition and infringement on our rights," and the wilful character of defendants' wrongdoing. Stark

Bros. Nurseries & Orchards Co. v. Stark, 255 65: 496

U. S. 50, 41 Sup. Ct. Rep. 221,


Injunction against, see Injunction, 9.
See also Monopoly.



Of cause, see Removal of Causes. TRANSFER TRAINS.

See Master and Servant, 10.


Effect on aliens, see Aliens.
Effect on right to seize enemy property,
see War, 12.

1. Treaties are to be interpreted upon the principles which govern the interpretation of contracts in writing between individuals, and are to be executed in the utmost good faith, with a view to making effective the purposes of the contracting parties, and all parts of the treaty are to receive a reasonable construction, with a view to giving a fair operation to the whole. Sullivan v. Kidd, 254 U. S. 433, 41 Sup. Ct. Rep. 158, 65: 344

2. While the question of the construction of treaties is judicial in its nature,

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