The shipments as to which additional compensation is sought in the present against this carrier was in force; that is case were made while the injunction to say, after the schedule was sustained by the first judgments, and before it was adjudged unremunerative as a result of the attack made after it had been in effect for a year or more. of the shipments the carrier demanded and the shipper paid the maximum rate At the time named in the schedule, it being the duly filed and published rate. did not then protest that it was entitled to more; nor did the shipper engage to The carrier pay more.

schedule of maximum rates for carrying, schedule after subjecting it to a fair [372] coal in carload lots between trial. When this right was exercised, points within the state (chap. 51, Laws the carriers did not ask a suspension 1907); and this and other carriers re of the injunctions pending a hearing fused to put the schedule into effect. and decision, and the injunctions reSuits for injunctions against further mained in force until the cases disobedience were brought by the state dismissed. Neither at the time of the in its supreme court, and the car- dismissal nor at any prior stage of riers defended on the ground that the the proceedings was there any order schedule was confiscatory, and there- saving or securing to the carriers a fore in conflict with the due process right to demand or collect additional of law clause of the 14th Amendment. compensation in respect of shipments On the hearing, that court sustained whereon the schedule rate was demanded the schedule and directed that the in- and paid while the injunctions were ef junctions issue. 19 N. D. 45, 25 L.R.A. fective. (N.S.) 1001, 120 N. W. 869, and 19 N. D. 57, 120 N. W. 874. riers brought the cases to this court on The carwrits of error, and it affirmed the judgments, but did so without prejudice to the right of the carriers to reopen the cases if an adequate trial of the schedule in the future enabled them to prove that it was confiscatory. 216 U. S. 579 and 581, 54 L. ed. 624, 625, 30 Sup. Ct. Rep. 423. Mandates to that effect issued and the state court modified its judgments accordingly. In obedience to the injunctions the carriers then put the schedule into effect in accordance with local laws (Rev. Codes 1905, §§ 4339-4342); that is to say, they printed and filed coal tariffs based on the maximum rates named in the schedule, and gave public notice of their purpose to apply those tariffs. After trying the schedule for a year or more, the carriers presented in the state court petitions wherein they told of the trial made, asserted their ability and readiness to prove that the schedule was confiscatory, and prayed permission to do so. The petitions were entertained, proofs were taken, and on a hearing the schedule was sustained and the existing injunctions continued. N. D. 438, 145 N. W. 135. On writs of error prosecuted by the carriers those judgments were reversed by this court, because the proofs satisfied it that the schedule was not adequately remunerative, and the cases were remanded for further proceedings not inconsistent with the opinion. 236 U. S. 585, 59 L. ed. 735, L.R.A.1917F, 1148, P.U.R.1915C, 277, 35 Sup. Ct. Rep. 429, Ann. Cas. 1916A, 1. On receiving the mandates, the state court set aside its judgments and dismissed the cases.

the carrier took the position that the In suing for further compensation, schedule was confiscatory, and therefore invalid under the 14th Amendment; that the coal was carried at the schedule rate because the injunction in the prior litigation compelled it; that the schedule ultimately was adjudged unremunerative and

solved; and that, in these circumstances, invalid, and the injunction disthere arose an obligation on the part of the shipper to pay an additional sum, such as, with that already paid, would 26 amount to a reasonable compensation.

The injunctions in those cases were awarded without [373] taking any bond, and without imposing any terms or conditions other than reserving to the carriers, as before shown, a right to reopen the cases and again attack the

65 L. ed.

judgment against the carrier on the fol-
The supreme court of the state put its
lowing grounds:

press or implied, on the part of the
[374] 1. There was no contract, ex-
shipper, to pay any rate other than
that shown in the tariff filed and
published according to law, the court
saying on
if shippers cannot rely upon the rates
this point: "Manifestly,
quirement of publication becomes a
so published and filed, the re-
judgment, it is wholly improper, in the
mere trap for the unwary.
absence of clear allegations of the ren-
dition of services under a distinct pro-
test, for a court to find that a shipper
had, in effect, undertaken conditionally
to pay according to a rate different from

In our

that published in compliance with the



Enterprise Irrig. Dist. v. Farmers Mut. Canal Co. 243 U. S. 157, 163-165, 61 L. ed. 644, 648, 649, 37 Sup. Ct. Rep. 318. Some may possibly involve Federal questions, but, under the jurisdictional statute, as amended in 1916, they are not such as entitle the carrier to a review of the judgment on a writ of error.

Writ of error dismissed.

shows that it did not uphold or give effect to the statutory rate as such, but 2. The injunction, in obedience to rested its decision on other independent which the schedule was put into effect grounds which appeared to it to preand maintained during the period cov- clude a recovery by the carrier. These ered by the shipments, was awarded grounds are broad enough to sustain without taking any bond or imposing the judgment, and, if not well taken, are any terms or conditions for the security not without substantial support. of the carrier; and in these circumstances the damage arising from the injunction was damnum absque injuria, for which no recovery could be had,the court citing on this point Russell v. Farley, 105 U. S. 433, 437, 438, 26 L. ed. 1060-1062,1 and saying: "In reality the plaintiff's [carrier's] whole case seems properly hinged upon the real meaning and effect of the first decree of the United States Supreme Court. The matter that was settled in that suit [meaning by that decree] was the right of the state to an injunction, and it was found that the state was entitled to the relief sought. Neither the state court nor the United States Supreme Court saw fit to impose any terms or conditions. The error in the plaintiff's [carrier's] contention inheres in the failure to recognize the injunction as being the continuing expression of the court until such time as it [375] may be modified or dissolved by a judgment or decree. During such time it is impossible that there could have been any other measure of the rights and obligations of the parties than that provided in the decree itself.


When that court finally dissolved the injunction, it did not reverse its prior judgment, nor, it seems to us, did it profess to give to the carriers any rights with respect to past shipments that did not exist at the time they were made. These rights were governed by the former decree."

3. The principle that one who has been unjustly enriched at the expense of another may be made to respond to the latter was without application, for here the shipper was responsible in no greater degree for what occurred than was the carrier.

The opinion rendered by that court 1 See also Meyers v. Block, 120 U. S. 206, 211, 30 L. ed. 642, 643, 7 Sup. Ct. Rep. 525; Lawton v. Green, 64 N. Y. 326, 330; Palmer v. Foley, 71 N. Y. 106, 108; St. Louis v. St. Louis Gas Light Co. 82 Mo. 349, 355; Hayden v. Keith, 32 Minn. 277, 278, 20 N W. 195; Scheck v. Kelly, 95 Fed. 941; Arkadelphia Mill. Co. v. St. Louis South western R. Co. 249 U. S. 134, 145, 63 L. ed. 517, 524, P.U.R.1919C, 710, 39 Sup. Ct. Rep. 237.






(See S. C. Reporter's ed. 376-378.) Error to state court — · Federal question settled by prior decision.

A writ of error will not lie from the

Federal Supreme Court to a state court in the state court was called upon to decide, a case in which the only question which and did decide, is one which was no longer

Note. On the general subject of writs of error from the United States Supreme Court to state courts-see notes to Martin v. Hunter, 4 L. ed. U. S. 97; Hamblin v. Western Land Co. 37 L. ed. U. S. 267; Re Buchanan, 39 L. ed. U. S. 884; and Kipley v. Illinois, 42 L. ed. U. S. 998.

On what adjudications of state courts can be brought up for review in the Supreme Court of the United States by writ of error to those courts-see note to Apex Transp. Co. v. Garbade, 62 L.R.A. 513.

On how and when questions must be order to make a case for a writ of error raised and decided in a state court in from the Supreme Court of the United States-see note to Mutual L. Ins. Co. v. McGrew, 62 L.R.A. 33.

On what the record must show respecting the presentation and decision of a Federal question in order to confer jurisdiction on the Supreme Court of the United States of a writ of error to a state court-see note to Hooker v. Los Angeles, 63 L.R.A. 471.

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See same case below in supreme court, 35 N. D. 331, 160 N. W. 140. The facts are stated in the opinion. Mr. John L. Erdall argued the cause, and, with Messrs. A. H. Bright and H. B. Dike, filed a brief for plaintiff in


Messrs. Andrew Miller and Alfred
Zuger argued the cause, and, with Mr.
B. F. Tillotson, filed a brief for de-
fendant in error.

the amount claimed. 35 N. D. 331, 160 N. W. 140. The carrier prosecutes this writ of error.

The pleadings, the opinion of the supreme court, and the briefs in this court, show that the only controversy in that court was over the meaning and effect of the first judgment in the injunction suit as affirmed by this court "without prejudice," etc. On the part of the shipper it was insisted that that judgment finally and conclusively determined the validity of the statutory rate in respect and on the part of the carrier it was of the period preceding its rendition; insisted that the judgment was interseded and held for naught by the subselocutory merely, and was entirely superquent judgment of this court in the later The court sustained the proceeding.

shipper's contention, and rejected that of the carrier, saying:

"The fallacy in respondent's [carrier's] contention, as we view it, lies in the unwarranted assumption that the latter judgment relates back and supersedes the first. When respondent [carrier] applied for and was granted leave to make a new showing as to the confiscatory character of the statutory rates, it amounted in legal effect to the commencement of a new action to determine a new issue; to wit, whether, as applied to and in the light of facts subsequently arising, such statutory rates are confiscaMr. Justice Van Devanter delivered tory. The case was not reopened for the the opinion of the court: purpose of relitigating the issues forThis is a companion case to Minneap-merly decided, nor was the former decree olis, St. P. & S. Ste. M. R. Co. v. Wash-in any way affected. This is made clear burn Lignite Coal Co. just decided [254 by the recent decision of the Supreme U. S. 370, ante, 310, 41 Sup. Ct. Rep.140], Court in Missouri v. Chicago, B. & Q. R. and was brought by a shipper to recover Co. 241 U. S. 533, 60 L. ed. 1148, 36 charges exacted in excess of the stat. Sup. Ct. Rep. 715." utory rate. The shipments were made prior to the first judgment in the injunetion suit, when the carrier was refusing to give effect to the schedule; and the excess was paid under protest [377] and because the carrier would not deliver the coal on payment of the statutory rate. In the trial court there was a judgment against the shipper, and this was reversed by the supreme court, with a direction to award the shipper

On necessity of color of merit in
Federal question to sustain writ of er-
ror to state court-see note to Offield v.
New York, N. H. & H. R. Co. 51 L. ed.
U. S. 231.

As to error to state courts in cases
presenting merely abstract or moot
questions-see note to Campbell v. Cali-
fornia, 50 L. ed. U. S. 382.

In support of that view the court quoted portions of the opinion in the case cited, including the following:

"In a rate case, where an assertion of confiscation was [378] not upheld because of the weakness of the facts supporting it, the practice came to be that the decree rejecting the claim and giving effect to the statute was,

where it was deemed the situation justified it, qualified as 'without prejudice,' not to leave open the controversy as to the period with which the decree dealt, and which it concluded, but in order not to prejudice rights of property in the future, if, from future operation and changed conditions arising in such future, it resulted that there was confiscation. And the same limitation arising from a solicitude not to unduly restrain in the future the operation of

shown by the petition, there is nothing to
prevent them from being set up in the re-
turn and duly considered.

[For other cases, see Appeal and Error, IX. 1,
in Digest Sup. Ct. 1908.]
Witnesses self-crimination




2. An involuntary bankrupt does not, by filing schedules of assets and liabilities without objection, waive his constitutional privilege to refuse to answer questions respecting them that might tend to incriminate and degrade him. [For other cases, see Witnesses, V. c, in Digest Sup. Ct. 1908.]

the law came to be applied where the asserted confiscation was held to be established. In other words, the decree enjoining the enforcement of the statute in that case was also qualified as without prejudice to the enforcement of the statute in the future if a change in conditions arose. A complete illustration of the operation of the qualification is afforded by the North Dakota Case, just cited [216 U. S. 579, 54 L. ed. 624, 30 Sup. Ct. Rep. 423], since in that case, as a result of the qualification 'without prejudice,' the case was subsequently reopened, and, upon a consideration of new conditions arising in Motion submitted November 22, 1920. Desuch future period, a different result followed [236 U. S. 585, 59 L. ed. 735, L.R.A.1917F, 1148, P.U.R.1915C, 277,

35 Sup. Ct. Rep. 429, Ann. Cas. 1916A, 1] from that which had been previously reached."

When we have in mind the question which the supreme court was called on to decide, and did decide, and the fact that the question was no longer an open one in this court, as is shown by our opinion in the Missouri Case, it is apparent that this writ of error is without any adequate basis.

Writ of error dismissed.

[379] JULES W. ARNDSTEIN, Appt.,


THOMAS D. McCARTHY, United States
Marshal for the Southern District of New

(See S. C. Reporter's ed. 379, 380.)

Appeal ceedings below.


subsequent pro1. The reversal of a judgment by which a petition for habeas corpus was held insufficient at a hearing as upon demurrer, and the remanding of the cause for further proceedings in accordance with the opinion, only requires the trial court to accept the Supreme Court's decision upon the point of law decided, to issue the writ, and then to proceed as usual. If the petition does not correctly set forth the facts, or if proper reasons exist for holding the prisoner, not

Note. On sufficiency of statutory immunity to satisfy constitutional guaranty against self-incrimination-see note to Arndstein v. McCarthy, ante, 138.

As to who is within protection of provision of Bankrupt Act as to use in criminal proceeding of testimony given by bankrupt-see note to People v. Lay, L.R.A.1917B, 614.

[No. 575.]

cided December 20, 1920.

APPEAL from the District Court of the United States for the Southern District of New York to review the denial of an application for a writ of habeas corpus. On petition of trustee in bankruptcy for leave to intervene, for certification of the entire record, and for reargument. Denied.

See ante, p. 138.

The facts are stated in the opinion. Mr. Charles Henry Butler for the motion, in behalf of counsel, Messrs. Saul S. Myers, Francis M. Scott, and Walter H. Pollak.

No brief was filed contra.

Memorandum for the court by Mr. Justice McReynolds:

The trustee in bankruptcy has filed an earnest petition asking that we (a) allow him to intervene, (b) permit reargument of the appeal, (c) direct that the entire record be certified to this court, (d) recall the mandate, (e) stay all proceedings in respect thereto, and (f) grant further and proper relief.

The court below heard the cause as upon demurrer, and held the petition for habeas corpus insufficient. Disagreeing with the result, we concluded that the bankrupt did not waive his constitutional privilege merely by filing sworn schedules, that the petition was adequate, and that the writ should have issued. The mandate only requires the trial court to accept our decision upon the point of law, to issue the writ, and then to proceed as usual. If the petition does not correctly set forth the facts, or if proper reasons exist for holding the prisoner, not shown by the petition, neither our opinion nor mandate prevents them from being set up in the return and duly considered.

[380] Alleged defects in the record

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(See S. C. Reporter's ed. 380-386.)

Federal courts rules of decision
following decisions of state courts -
local law.

1. Whether the priority of a state over
other unsecured creditors in payment of
debts due the state out of the assets of the
debtor is a prerogative right or merely a
rule of administration is a matter of local
law, and the decision of the highest court
of the state as to the existence of the right
and its incidents will be accepted by the
Federal Supreme Court as conclusive.
[For other cases, see Courts, VII. c, in Digest

Sup. Ct. 1908.]
State - priority as creditor - Federal

2. The common-law priority of the state
of New York over unsecured creditors in
payment of all the debts due the state out
of the assets of the debtor extends to all

Note. As to state decisions and laws
as rules of decision in Federal courts-
see notes to Clark v. Graham, 5 L. ed.
U. S. 334; Elmendorf v. Taylor, 6 L. ed.
U. S. 290; Jackson ex dem. St. John
v. Chew, 6 L. ed. U. S. 583; Mitchell v.
Burlington, 18 L. ed. U. S. 351; United
States ex rel. Butz v. Muscatine, 19
L. ed. U. S. 490; Forepaugh v. Dela-
ware, L. & W. R. Co. 5 L.R.A. 508; and
Snare & T. Co. v. Friedman, 40 L.R.A.
(N.S.) 380.

As to common-law priority of state
or United States in payment from as
sets of debtor-see notes to State v.
First State Bank, L.R.A.1918A, 398;
Re Carnegie Trust Co. 46 L.R.A. (N.S.)
260; State v. Williams, 1 L.R.A. (N.S.)
255; and State v. Foster, 29 L.R.A. 226.
On priority of claims in hands of re-
ceiver over recorded lien-see notes to
First Nat. Bank v. Cook, 2 L.R.A.
(N.S.) 1013, and Citizens' Trust Co. v.
National Equipment & Supply Co. 41
L.R.A.(N.S.) 695.

65 L. ed.


property of the debtor within the borders of the state, whether the debtor be a resident or property be in his possession or in custodia a nonresident, and whether the forceable against the property in the hands legis, and such priority is therefore enof a receiver appointed by a Federal court within the state. Federal receivers court takes property subject to all liens, claims 3. A receiver appointed by a Federal priority. priorities, or privileges existing or accruing under the laws of the state.

[For other cases, see Receivers, 1II. in Digest Sup. Ct. 1908.]

State priority as creditor 4. Where the common-law prerogative remedy. the debts due the state out of the assets right of the state of New York to priority over unsecured creditors in payment of all of the debtor could not be enforced by levy and seizure because of the appointment of a receiver by a Federal court within the state, an application to that court for payment of the debt due was the appropriate remedy. State

priority as creditor receivership.


other unsecured creditors in payment of 5. The common-law prerogative right debts due the state out of the general assets of the state of New York to priority over of the debtor in the custody of a receiver appointed by a Federal court within the

imposed upon a foreign corporation for the privilege of doing business within the state, although the state may not have acquired a lien on such assets at the time they passed Federal courts — enforcing common-law into the receiver's hands. right.

state extends to a claim for license taxes

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