Federal estate tax, see Internal Reve-, nels. nue. Deduction from Federal estate tax, see 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 43, TELEGRAPHS. Municipal license tax on telegraph com- 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 2. The provision in the proclamation of the President of July 22, 1918, taking over the telegraphs, that "until and except so far as said Postmaster General shall from time to time by general or special orders otherwise provide, the owners, managers, 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 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 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. 5. Since the amendment of June 18, 1910, to the Interstate Commerce Act, bringing telegraph and cable companies within the operation of that act, and providing that telegraph and cable messages 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 messages, the sender of an unrepeated cablegram 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 mistake in transmission of unrepeated cablegrams to the amount of the company's share of the tolls collected, where such tariff offers alternative rates for repeated and unrepeated cable messages, since any deviation from the lawful rate would violate the statutory requirement of equality and uniformity 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 in the same state over a route passing through another state would not be a liability for an intrastate transaction that never took place, but for the unwarranted conduct of the company and the resulting loss. Western U. Teleg. Co. v. Speight, 254 U. S. 17, 41 Sup. Ct. Rep: 11, 65: 104 TERMINAL RAILWAYS. See Master and Servant, 10. TERRITORIES. As to license tax, see License, 2-5. TIDE LANDS. Riparian rights in, see Waters, 5-11. TORTS. Injunction against tortious acts, Injury to employees, see Master see and 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 see registrant to give notice to the public by attaching certain specified words or abbreInjunction against infringement, see In-viations to the trademark, or to the recepjunction, 14, 15. TRADEMARK. Final decree in trademark cases, 1. A secondary meaning of a trademark, indicating the owner's product alone, may be acquired by long use, so as to entitle it to protection in equity against infringement, whatever may have been the original weakness of such trademark. CocaCola Co. v. Koke Co. 254 U. S. 143, 41 Sup. Ct. Rep. 113, 65: 189 the tacle 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 2. The right of plaintiff to equitable relief against infringement of his trademark, where that is contested on ground of his own fraudulent misrepreU. 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 S. 50, 41 Sup. Ct. Rep. 221, TRADE UNIONS. Injunction against, see Injunction, 9. TRADING WITH ENEMY. TRANSFER. Of cause, see Removal of Causes. See Master and Servant, 10. TREATIES. Effect on aliens, see Aliens. 1. Treaties are to be interpreted upon 2. While the question of the construction of treaties is judicial in its nature, Error in instructions, see Appeal and Error in directing verdict, see Appeal Right to trial by jury, see Jury. Question for jury. 1. A railway company sued for damages for personal injuries received in the Republic of Panama does not get less than it is entitled to when the court, in view of contradictory testimony from lawyers on the two sides, leaves to the jury the questions whether, under the law of Panama, the exercise by the railway company of due care in the selection of its employees relieves it from liability in damages for in juries resulting from the negligence of such employees, and whether, under such law, damages for physical pain are recoverable. Panama R. Co. v. Pigott, 254 U. S. 552, 41 Sup. Ct. Rep. 199, 65: 400 2. It is for the jury to decide whether proper care required a railway company to have a flagman or gate at a much frequented street crossing, the view of which was partially obstructed by a hedge, and to have a lookout when an engine is backing a car over the crossing, and to give warning by bell or whistle. Panama R. Co. v. Pigott, 254 U. S. 552, 41 Sup. Ct. Rep. 199, 65: 400 3. Extreme youth of a child who was run over when attempting to cross a railroad at a street crossing may justify the court in permitting the jury to attribute his misfortune to the railway company's conduct alone, whatever difficulties there might be in the case of an older person. Panama R. Co. v. Pigott, 254 U. S. 552, 41 Sup. Ct. Rep. 199, 65: 400 Creation; termination. 1. An agreement between railway companies entering a city for the purchase, construction, and maintenence of terminal facilities at the joint expense of the railway companies, to be held and used in com mon, followed by the incorporation of a terminal company which was to exercise all its powers in accordance with the terms and spirit of such agreement, the conveyance to it of all the terminal properties by deeds absolute in form, and the issuance of stocks and bonds in payment, establish a trust under which the terminal company was vested, as trustee, with complete legal title, but without beneficial ownership, subject to the duty to maintain and operate the property and exercise all its corporate powers for the common use and benefit of the proprietary railway companies. cago, M. & St. P. R. Co. v. Des Moines Union R. Co. 254 U. S. 196, 41 Sup. Ct. Rep. 81, Chi 65: 219 2. No particular form of words is es sential to create a trust, provided there be reasonable certainty as to the property, the objects, and the beneficiaries. Chicago, M. & St. P. R. Co. v. Des Moines Union R. Co. 254 U. S. 196, 41 Sup. Ct. Rep. 81, 65: 219 3. If the subject of a trust be a legal interest in property, and capable of legal transmutation, the trust is not perfectly created unless the legal interest be actually vested in the trustee. Chicago, M. & St. P. R. Co. v. Des Moines Union R. Co. 254 U. S. 196, 41 Sup. Ct. Rep. 81, 65: 219 4. It is not necessary that the trust be expressed in the same instrument that transfers the title to the trustee. Various instruments may be read together in order to ascertain the intention to establish the trust. Chicago, M. & St. P. R. Co. v. Des Moines Union R. Co. 254 U. S. 196, 41 Sup. Ct. Rep. 81, 65: 219 4. The fact that plaintiff, in a suit upon an assigned claim in which the defense is 5. A working agreement between a ter champerty and maintenance, moved, as did minal company and the proprietary railway the defendant, for a directed verdict, did companies which had created it to carry not preclude him from also asking to go out a trust to maintain and operate the to the jury if the court held a contrary view terminal property, and exercise all its corconcerning the evidence, and such request porate powers for the common use of the should have been granted where some sub-railway companies, at their joint expense, stantial evidence strongly tended to show that the assignment was taken in extinguishment of an existing indebtedness, and not for mere speculation upon the outcome of intended litigation. Sampliner v. Motion Picture Patents Co. 254 U. S. 233, 41 Sup. Ct. Rep. 79, TRIAL DE NOVO. See Appeal and Error, 52. 65: 240 which agreement fixed the terms upon which 6. It would require a clear case to warrant a court of equity in declaring that the trustees of an express trust, in the very course of their administration of the trust, had acquired a dominant interest in the trust property, and in effect a discharge of the trust, through mere inattention or even negligence, not raising an estoppel or amounting to laches, on the part of the parties beneficially interested, or their executive officers. Chicago, M. & St. P. R. Co. v. Des Moines Union R. Co. 254 U. S. 196, 41 Sup. Ct. Rep. 81, 65: 219 Dealing with trust estate. 7. Officers and directors of a terminal company which was created by certain railway companies entering a city to carry out a trust to maintain and operate the corporate property, and exercise all its corporate powers for the common use and benefit of the proprietary railway companies to whom was apportioned all the terminal company's capital stock, could only purchase such stock subject to all qualifications arising out of such trust that pertain to the property and franchises of the terminal company. Chicago, M. & St. P. R. Co. v. Des Moines Union R. Co. 254 U. S. 196, 41 Sup. Ct. Rep. 81, Rights of beneficiaries. 65: 219 Liability to interest, see Interest, 1. Right to trial by jury in suit against Party to suit against Indians, see Par- Private land claims, see Private Land Public Lands of, see Public Lands. Bribery of rederal officers or person exercising official function, see Brib ery. Jurisdiction of suit founded on tort of Federal officer, see Claims, 1, 2. Trading with Indians, see Indians, 2, 3. Enjoining action of Land Department, see Injunction, 13. Return of marshal, see Writ and Proc ess. 1. The United States Shipping Board 8. Rents, switching, and other terminal Emergency Fleet Corporation, controlled charges which a terminal company created and managed as it was by its own officers, by certain railway companies to carry out and appointing its own servants and agents, a trust to maintain and operate a terminal who became directly responsible to it, must property and exercise all its corporate be regarded as an entity separate from the powers for the common use and benefit of United States, notwithstanding the ownerthe proprietary railway companies received ship by the government of all its capital from outside railway companies and others stock, and a person employed by such Fleet should be credited to the proprietary rail- Corporation as an inspector is not an agent way companies upon a wheelage basis, the trust agreement providing that, in making up the net cost of maintenance and operation chargeable to the proprietary lines on a wheelage basis, there shall be deducted the amount, if any, which other railway companies may be under obligation to pay by virtue of contracts for the use of said property or parts thereof. Chicago, M. & St. P. R. Co. v. Des Moines Union R. Co. 254 U. S. 196, 41 Sup. Ct. Rep. 81, 65: 219 Liability of trust estate. 9. For proper professional services rendered and expenses incurred in promoting legislation that has for its object and effect the rescue of substantial property interests for a class of beneficiaries under a trust of a public nature it is equitable to impose a charge for reimbursements and compensation upon the interests of those beneficiaries who receive the benefit the same as if a like result had been reached through successful litigation in the courts. Winton v. Amos, 255 U. S. 373, 41 Sup. Ct. Rep. 342, 65: 684 UNFAIR COMPETITION. of the United States, within the meaning officer, or agent, or in which he has a 65:368 Right to maintain creditors' bill, see 2. The United States, though without pecuniary interest in the relief sought, may maintain a suit to enforce statutory and administrative restrictions on the disposal and leasing of allotments to Indians who have not been fully emancipated, but are still wards of the United States. La Motte v. United States, 254 U. S. 570, 41 Sup. Ct. Rep. 204, Immunity from suit. 65: 410 3. A suit by a railway company to enjoin the Secretary of the Interior and the Commissioner of the General Land Office from canceling a selection of indemnity Injunction against, see Injunction, 14, lands under a railroad land grant, which 15. See also Trademark. UNIFORMITY. In tax measures, see Taxes, 2, 3. the Land Department had ordered canceled solely on the ground that the land selected had, before approval by the Secretary of the Interior, been included in a subsequent temporary executive withdrawal for a ury appropriated for the specific purpose, and of §§ 3732 and 5503, and of the Act of June 30, 1906, that no act shall be construed to authorize the execution of a contract involving the payment of money in excess of appropriations made by law unless such act shall, in specific terms, declare an appropriation to be made, or that a contract may be executed. Sutton v. United States, 256 U. S. 575, 41 Sup. Ct. Rep. 563, 65: 1099 water-power site, is not one against the United States, not maintainable without its consent, but is one to restrain such officers from canceling a valid indemnity selection through a mistaken conception of their authority, and thereby casting a cloud on the plaintiff's title. Payne v. Central P. R. Co. 255 U. S. 228, 41 Sup. Ct. Rep. 314, 65: 598 4. The objection of government control of the railroads cannot defeat jurisdiction of a suit upon a reparation order of the Interstate Commerce Commission where the 7. An unauthorized payment to a govshipments for which reparation was al- ernment contractor may be deducted from lowed moved prior to the taking over of the payments thereafter made to the same conrailroads by the government, since, under tractor for work under a wholly different the provision of § 10 of the Federal Rail- contract. Sutton v. United States, 256 U. road Control Act, "Actions at law or suits S. 575, 41 Sup. Ct. Rep. 563, in equity may be brought by and against-implied contracts. such carriers, and judgments rendered as 8. The United States does not impliednow provided by law; and in any action at ly promise to compensate persons engaged aw or suit in equity against the carrier, in stock raising for the destruction of their no defense shall be made thereto upon the business, or the loss sustained through the ground that the carrier is an instrumental-enforced sale of their cattle, the result of ity or agency of the Federal government." the inundation of their lands by the conVicksburg, S. & P. R. Co. v. Anderson-Tully struction of a dam which arrests flood Co. 256 Ü. S. 408, 41 Sup. Ct. Rep. 524, waters. Bothwell v. United States, 254 U. S. 231, 41 Sup. Ct. Rep. 74, 65: 238 Priority as creditor. 65: 1099 65: 1020 9. No contractual obligation on the part Appellate jurisdiction in suit under of the United States to pay for anti-hogLever Act, see Appeal and Error, 9. cholera serum, anti-cholera virus, and serum 5. The United States, having been giv- blood, seized without agreement to puren by U. S. Rev. Stat. § 3466, priority over chase by agents of the Bureau of Animal other creditors of an insolvent debtor, is Industry, and thereafter destroyed, can be entitled to such priority, as against a sure-implied from the provisions of the Act of ty on the debtor's bond to the government, March 4, 1915, that, in case of an emerfor the amount of its claim remaining un-gency arising out of the existence of certain paid after the surety has paid the full contagious or infectious diseases of aniamount of the liability on the bond, al- mals, which, in the opinion of the Secretary though by § 3468, when a surety pays to the of Agriculture, threatens the live-stock inUnited States the money due upon a bond, dustry, he may expend a specified sum, such surety is given like priority for the which sum is thereby appropriated, or so recovery of the money as is secured to the much thereof as he deems to be necessary, United States. While the priority given the in the arrest and eradication of any such surety by such statute attaches as soon as disease, including the payment of claims the obligation upon the bond is discharged, growing out of past and future purchases it cannot ripen into enjoyment unless or un- and destruction, in co-operation with the til the whole debt que the United States states,. of animals affected by, or exposed s satisfied. United States v. National Sure-to, or of materials contaminated by or excy Co. 254 U. S. 73, 41 Sup. Ct. Rep. 29, posed to, any such disease. Great Western 65: 143 Serum Co. v. United States, 254 U. S. 240, 41 Sup. Ct. Rep. 65, 65: 243 Appropriations for work already done, see Appropriations. Contracts generally. 10. No government official can, by his acts or omissions, render the United States liable as upon an implied contract for work done by a government contractor after the appropriation therefor was exhausted, where no such official could have rendered the United States liable for such work by express contract. Sutton v. United States, 256 U. S. 575, 41 Sup. Ct. Rep. 563, 65: 1099 6. The making of a contract binding the government to pay more than the amount appropriated was not within the power of the Secretary of War, under the River and Harbor Act of July 25, 1912, making an appropriation for completing a specified improvement, and providing in § 8 that whenever the appropriations made or authorized to be made for the completion 11. The subsequent use by the governof any river and harbor work shall prove ment of excavation work in a navigable insufficient therefor, the Secretary of War channel, done by a government contractor may, in his discretion, on recommendation after the appropriation therefor was exof the Chief of Engineers, apply the funds hausted, does not imply a promise to pay so appropriated or authorized to the prose for such excess work if, at any time therecution of the work,-especially in view of after, Congress should appropriate money the provisions of U. S. Rev. Stat. § 3733. to be applied in completing the improvethat no contract for any public improvement. ment shall bind the government to pay a 575, 41 larger sum than the amount in the Treas- | Sutton v. United States, 256 U. S Sup. Ct. Rep. 563, 65: 1099 12. Approriations by Congress for the |
