Mr. William J. Conlen argued the cause and filed a brief for petitioner.

No brief was filed for respondents.

Mr. Chief Justice White delivered the opinion of the court:

Consequent on the allowance of a writ of certiorari, the case is here to review the action of the court below in grant

Holding that the recital in the bill of

ing, in an admiralty case there pending, lading of the intake weights was but a motion for leave to withdraw an ap- prima facie evidence, and that the proof peal made by the respondents, who were there appellants. 167 C. C. A. 440, 256 showed the delivery of all cargo received Fed. 224. The situation thus arose: on board, the court dismissed the libel The schooner John Twohy was char- as to the first claim. As to the second, tered to carry a cargo of bones from however, it found that the damage from Buenos Aires to Philadelphia. The leakage had resulted from unseaworvoyage was made, and, following the dis- thiness and sustained that claim. charge of the cargo, the charterers, who are the petitioners, [78] libeled the vesappeals may be reduced, although the adverse party does not appeal, it decides nothing more, and it is not to be supposed that the court would overrule its previous decisions without saying so, or without referring to them."

And in The Ciampa Emilia, 1 C. C. A. 508, 1 U. S. App. 143, 50 Fed. 239, it was held that the court will not take any notice of the contention of a libellant who has not appealed, that certain items of loss were improperly disallowed by the court below. And see The Roarer, 1 Blatchf. 1, Fed. Cas. No. 11,876.

But while it has been held that one who has not appealed can be heard only in support of the decree, and therefore can get in the appellate court no more or other relief than it gives, there are many cases which take the contrary view.

Thus, the award of the district court in favor of the appellant may be decreased on appeal although the appellee did not appeal. Irvine v. The Hesper, supra. The court stated that when the libellants appealed, they did so in view of the rule, and took the risk of the result of a trial of the case de novo. The whole case was opened by the appeal as much as it would have been if both parties had appealed, or if the appeal had been taken only by the claim

ant.

So, too, in The San Rafael, 72 C. C. A. 388, 141 Fed. 270, an award made to certain libellants by the district court was increased although such libellants did not appeal, the court holding that the fact that no appeal by them was taken was unimportant, since by their appeal the adverse parties took the risk of the result of a trial of the case de novo.

The claimants alone appealed, and, after having twice obtained a continAnd in Munson S. S. Line v. Miramer S. S. Co. 93 C. C. A. 360, 167 Fed. 960, a more favorable decree was entered in favor of the party who did not appeal.

So, too, an appeal to a Federal circuit court of appeals from a final decree of a district court in a suit in admiralty brings the case before it for a trial de novo, so that the court may review an interlocutory decree therein which was not appealed from, and allow a recovery against a party who was dismissed by that decree, and may review both interlocutory and final decrees so far as essential to grant relief to a party who has not appealed from either decree. Reid v. Fargo, 241 U. S. 544, 60 L. ed. 1156, 36 Sup. Ct. Rep. 712.

In The Charles Morgan, 115 U. S. 69, 29 L. ed. 316, 5 Sup. Ct. Rep. 1172, it was held that, under the admiralty rules, the circuit court may, in its discretion, permit an amendment of a libel so as to include a claim for damages growing out of the original cause of action and litigated in the court below, but rejected because not specified in the pleading. The court distinguished Houseman v. The North Carolina, 15 Pet. 50, 10 L. ed. 657, which held that a libel could not be amended after an appeal so as to bring in a new claim for damages, as being a decision before the adoption of the admiralty rules.

In The Morning Star, 14 Fed. 866, an amendment to the pleadings was permitted which presented the case to the appellate court in a different aspect from that in which it was presented to the lower court, but on the condition that the costs of the district court be paid by the appellant.

1920.

DUCHE & SONS v. SCHOONER JOHN TWOHY.

uance, moved for leave to withdraw the
appeal. Opposing this motion, the libel-
lants asserted that, under the practice
in admiralty in that circuit, an appeal
opened up the whole case for recon-
sideration in the appellate court; that,
relying upon that practice, they had re-
frained from themselves taking an ap-
peal from the ruling of the trial court.
denying their claim for nondelivery of
cargo; that, owing to the continuances
allowed the appellants, the time within
which the libellants might have taken
an appeal had expired, and if the ap-
pellants prevailed in their motion, the
libellants would be without means of ob-
taining a review of the adverse action
of the trial court.

Coming to consider these contentions,
the court held them to be without merit;
first, because the libellants, by them-
selves taking an appeal, could have re-
quired the appellate court to proceed
and decide the same; second, because,
having failed to adopt that course they
could not complain if the court, in the
exercise of its discretion, declined to
grant them as a legal right that which
they might have made such had they
availed themselves of [79] the appro-
priate procedure; and third, because the
court conceived that the allowance of the
withdrawal of the appeal would be in
furtherance of the due administration
of the admiralty, in that it would tend
to put an end to litigation, would afford
appellants time within which to exer-
cise a cooler judgment, would forewarn
all persons to themselves appeal if they
desired to insure a review of unfavor-
1
able decisions, and would prevent the
hardship which would result from a
contrary ruling, as many would be de-
terred from appealing from unjust de-
cisions if, having once embarked on that
course, they were powerless to with-
draw. Upon compliance with certain
conditions prescribed by the court, ap-
pellants' motion was therefore granted.
We are unable to give our approval
to this result or the reasons by which
As recognized by the
it was sustained.
court, the case of The Canadia, 154 C.
C. A. 153, 241 Fed. 233, had settled in
that circuit that, in admiralty, an appeal
by either party operated to remove the
case to the appellate court for a trial
de novo. The decision was based sole-
ly upon the previous rulings of this
court in Irvine v. The Hesper, 122 U. S.
256, 30 L. ed. 1175, 7 Sup. Ct. Rep. 1177,
and Reid v. Fargo, 241 U. S. 544, 60 L.
ed. 1156, 36 Sup. Ct. Rep. 712. In Ir-

vine v. The Hesper, Mr. Justice Blatch-
ford, speaking for the court, said:

"It is well settled, however, that an
appeal in admiralty from the district
court to the circuit court vacates alto-
gether the decree of the district court,
Yeaton v. United States,
and that the case is tried de novo in the
circuit court.
5 Cranch, 281, 3 L. ed. 101; Anonymous,
1 Gall. 22, Fed. Cas. No. 444; The Roar-
er, 1 Blatchf. 1, Fed. Cas. No. 11,876;
The Saratoga v. 438 Bales of Cotton, 1
Woods, 75, Fed. Cas. No. 12,356; The
Lucille, 19 Wall. 73, 22 L. ed. 64; The
Charles Morgan, 115 U. S. 69, 75, 29
L. ed. 316, 318, 5 Sup. Ct. Rep. 1172.
We do not think that the fact that the
claimants did not appeal from the decree
of the district court alters the rule.
When the libellants appealed, they did
so in view of the rule, and took the risk
of the result of a trial of the case de
novo. The whole [80] case was opened
by their appeal as much as it would have
been if both parties had appealed, or if
the appeal had been taken only by the
claimants."

And in the Reid Case this court, although pressed to repudiate the practice, as opposed to the weight of adjudged cases, declined to do so, and reaffirmed the ruling made in Irvine v. The Hesper.

In view, therefore, of the settled law as to the effect of appeals in admiralty, we are of opinion that the libellants were justified in regarding the appeal taken by the claimants as securing to libellants the right to be heard in the appellate court without the necessity of perfecting a cross appeal in order to preserve that right. To hold, then, that the appellate court could, nevertheless, without affording the libellants an opportunity to be heard, enter a decree the plain effect of which was to deny one of the two claims for which the libel was brought, and which, in view of the settled effect of the appeal, the libellants could not be presumed to have abandoned, would be to subject them to a wrong without a remedy, even if it did not amount to a denial of due process of law.

And this renders it unnecessary to consider the supposed advantages which would arise from the adopting of a new rule, since, if the wisdom of so doing be arguendo conceded, that concession would not justify the misapplication of the existing rule, and the destruction of rights vested in reliance not only upon its existence, but upon the discharge of the duty to enforce and apply it.

515

It follows that the decree of the court, in the Lever Act of August 10, 1917, § 4, below must be reversed and the cause remanded for further proceedings in conformity with this opinion.

[81] UNITED STATES OF AMERICA, and juries, and secure to accused persons

1920.

UNITED STATES v. COHEN GROCERY CO.

The Act of October, 1919, is not subject to the objection that it is too vague and uncertain.

United States v. Brewer, 139 U. S. 278, 288, 35 L. ed. 190, 193, 11 Sup. Ct. Rep. 538; Miller v. Strahl, 239 U. S. 426, 434, 60 L. ed. 364, 368, 36 Sup. Ct. Rep. 147; Tozer v. United States, 4 Inters. Com. Rep. 245, 52 Fed. 917; Nash v. United States, 229 U. S. 373, 57 L. ed. 1232, 33 Sup. Ct. Rep. 780; Cases Arizona Employers' Liability (Arizona Copper Co. v. Hammer) 250 U. S. 400, 432, 63 L. ed. 1058, 1071, 6 A.L.R. 1537, 39 Sup. Ct. Rep. 553; United States v. Rosenblum, 264 Fed. 582; United States v. Oglesby Grocery Co. 264 Fed. 691; Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 53 L. ed. 417, 29 Sup. Ct. Rep. 220; Omaechevarria v. Idaho, 246 U. S. 343, 62 L. ed. 763, 38 Sup. Ct. Rep. 323.

Messrs. Louis B. Sher and Chester H. Krum argued the cause and filed a brief for defendant in error:

peace.

The Constitution is a law for rules and the people equally in war and in It protects all classes of men, at all times, and under all circumstances. Ex parte Milligan, 4 Wall. 121, 18 L. ed. 295.

The framers of the Constitution did not intend to restrain the states in the regulation of civil institutions adopted for internal government.

Dartmouth College v. Woodward, 4 Wheat. 518, 629, 4 L. ed. 629, 657; Hammer v. Dagenhart, 247 U. S. 251, 62 L. ed. 1101, 1107, 3 A.L.R. 649, 38 Sup. Ct. Rep. 529, Ann. Cas. 1918E, 724.

It is true that private contracts must yield to public welfare when appropriately declared and defined.

Union Dry Goods Co. v. Georgia Public Service Corp. 248 U. S. 372, 63 L. ed. 309, 9 A.L.R. 1420, 39 Sup. Ct. Rep. 117, P.U.R.1919C, 60.

And there is no absolute freedom to do as one wills, or to contract as one chooses. Liberty is not mere license.

Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 567, 55 L. ed. 338, 31 Sup. Ct. Rep. 259.

And it is settled that all contracts and property rights are held subject to the fair exercise of the power of the state to prescribe regulations for the general welfare.

Atlantic Coast Line R. Co. v. Goldsboro, 232 U. S. 548, 558, 58 L. ed. 721, 726, 34 Sup. Ct. Rep. 364.

But the right of the United States to penalize merely local contracts in which

the government has no concern must de-
ing from the proximity of a peril, or
pend upon a degree of necessity result-
Stotenburgh v. Frazier, 16 App. D. C.
danger to the general government itself.
229, 48 L.R.A. 220; Lawton v. Steele,
152 U. S. 133-139, 38 L. ed. 385-389, 14
Due process of law is the law of the
Sup. Ct. Rep. 499.
land.

Davidson v. New Orleans, 96 U. S.
97, 24 L. ed. 616; Missouri P. R. Co. v.
Humes, 115 U. S. 512, 519, 29 L. ed. 463,
465, 6 Sup. Ct. Rep. 110; Scott v. To-
ledo, 1 L.R.A. 688, 36 Fed. 385.

The phrase imports in general a pub-
lic law, equally binding upon all persons
and classes.

Giozza v. Tiernan, 148 U. S. 657, 37
L. ed. 599, 13 Sup. Ct. Rep. 721.

Laws which create crime ought to be
so explicit that all men subject to their
penalties may know what act it is their
duty to avoid.

United States v. Brewer, 139 U. S.
278, 35 L. ed. 190, 11 Sup. Ct. Rep. 538;
Rep. 245, 52 Fed. 917.
Tozer v. United States, 4 Inters. Com.

The statute is unjust or unreasonable.
There is no standard of determination in
the statute of unjustness or unreason-
ableness.

Standard Oil Co. v. United States, 221 U. S. 106, 55 L. ed. 663, 34 L.R.A. (N.S.) 834, 31 Sup. Ct. Rep. 502, Ann. Cas. 1912D, 734; Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 53 L. ed. 417, 29 Sup. Ct. Rep. 220.

Messrs. William D. Guthrie, Benjamin F. Spellman, and Bernard Hershkopf filed a brief as amici curiæ:

The Lever Law violates the 5th and 6th Amendments to the Constitution.

United States v. Sharp, Pet. C. C. 122, Fed. Cas. No. 16,264; United States v. 565; United States v. Brewer, 139 U. S. Reese, 92 U. S. 214, 220, 23 L. ed. 563, 278, 288, 35 L. ed. 190, 193, 11 Sup. Ct. Indian ston on Crim. Jurisprudence, Chase's ed. Rep. 538; 1 Works of Edward Living1873, pp. 12,170; Macaulay, United States v. Myatt, 264 Fed. 450; Penal Code, 4 Misc. Works at p. 170; Detroit Creamery Co. v. Kinnane, 264 Fed. 845; International Harvester Co. v. Kentucky, 234 U. S. 216, 58 L. ed. 1284, tucky, 234 U. S. 634, 58 L. ed. 1510, 34 34 Sup. Ct. Rep. 853; Collins v. KenSup. Ct. Rep. 924; Bishop, Statutory United R. Co. v. Dey, 1 L.R.A. 744, 2 Inters. Crimes, 3d ed. § 41; Chicago & N. W. Com. Rep. 325, 35 Fed. 866; States v. L. Cohen Grocery Co. 264 Fed.

517