upon the difference between rates charged on rough material transported from forest to milling points, and the rates provided in the commission tariff on such movements. That tariff contained maximum rates on such lumber, applicable generally, and, in addition, provided for a "milling-in-transit privilege," by fixing certain "rough-material rates" lower than the others, conditioned upon a specified percentage of a manufactured product [254] being shipped out on the same line that brought in the rough material. The railway company excepted to the claim on two grounds: (a) that the rough-material rates were discriminatory, and (b) that they were not applicable to the shipments of Hasty & Sons because these constituted interstate commerce, and hence were not subject to the commission's rates. The district court sustained both exceptions. The resulting decree, so far as adverse to Hasty & Sons, was reversed by this court (249 U. S. 134, 147-152), and the cause remanded for further proceedings in conformity with our opinion. Upon the going down of this mandate there were further hearings before the referee and the district court upon the claim of Hasty & Sons and claims of the same type, presented by three other intervening shippers; and from the resulting decree in their favor the present appeal is taken. Although the only question immediately involved is the proper construction of the Standard Distance Tariff, we have jurisdiction, as we had in the Arkadelphia Mill. Co. Case, supra, because the decree is but supplementary to the main cause, bringing to effective conclusion, if not vitiated by error, the controversy that arose out of the railway company's attack upon the rates on constitutional grounds, and hence must be regarded as involving the construction and application of the Constitution of the United States, within the meaning of § 238, Judicial Code. See 249 U. S. 140-142. The disputed claims are based, in the main, upon alleged overcharges on rough material shipped over appellant's road to the respective mills of appellees, and there manufactured into heading for barrels. The question is whether item 79 of Distance Tariff No. 3 provided a rough-material rate for heading. It reads as follows: "Item 79. Rough-material rates. "(a) Rough-material rates applicable on rough lumber, staves, flitches, bolts, and logs, carloads, [255] between all [Here follows a table of percentages applicable to various products; among them:] "Finished staves, 40 per cent of weight of rough staves. "Staves and heading, 30 per cent of weight of bolts." At the hearing before the master it was admitted that the claimants shipped out over the line of road that brought in the rough material the requisite percentages of manufactured product in the usual course of business; nevertheless, appellant objected to the allowance of the claims, on the ground that item 79 provided no rate on inbound rough heading, but the same was covered by item 41, and since the general rates provided therein were higher than those actually charged, there was no basis for a refund. The objection was renewed in an exception to the master's report, and urged at the hearing before the court on the report and exceptions. The master found that rough heading was covered as rough material in item 79, and the district court sustained that conclusion. Appellant's contention is based upon, a literal reading of the opening sentence of item 79: "Rough-material rates applicable on rough lumber, staves, flitches, bolts, and logs," etc.; and since "rough heading" is not mentioned here, while the associated material "staves" is specified, it is contended that rough heading is not provided for. [256] From the testimony taken before the master it would appear that the raw material from which barrel heads are made is variously described as rough heading, sawed heading, split heading, and bolts or heading bolts; but it also appears that, whatever may be the distinctions, the terms are used loosely and indiscriminately in the trade and in billing shipments, material of either description being considered rough material, and all having been handled by the railway company under the rough-material rate on its own schedules, without regard to particular terms. and unless the interest sought to be taxed. 3. The existence of a power of appointment does not, in itself, vest any estate in the donee. Sup. Ct. 1908.] [For other cases, see Powers, I. a, in Digest appointed property as assets of donee's estate. Powers 4. 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 executor at all, it does so, not by virtue of absence of statute, if it passes to the his office, but as a matter of convenience, and because he represents the rights of creditors. We regard appellant's reading of item 79 as altogether too narrow. The scope and effect of the rough-material rates should be determined not by regarding the opening sentence alone, but by looking also to the list of finished products to be manufactured from the material, and considering the general purpose of item 79. In the table of percentages, there are specified "finished staves, 40 per cent of weight of rough staves," and "staves and heading, 30 per cent of weight of bolts." The purpose is manifest to give the benefit of the milling in-transit rate to rough material out of which heading is manufactured, and no reason appears for limiting it to material of a particular description. The word [For other cases, see Powers, I. a, in Digest "bolts," used in connection with staves Sup. Ct. 1908.] Powers rights of creditors of donee. and heading, should be taken not as con5. Creditors of the donee of a power fining the ivilege to rough material of of appointment can lay claim to the apa particular form, but in the generic pointed estate, where the power is executed, sense in which it is employed in wood-only to the extent that the donee's own working, as meaning: "A mass of wood estate is insufficient to satisfy their defrom which anything may be cut or mands. formed" (Century Dict.); "A block of wood from which something is to be made; as a shingle bolt, a stave bolt" (Standard Dict.); "A block of timber to be sawed or cut into shingles, staves, etc." (Webster's Dict.). The matter is so free from doubt that there is no occasion to apply to the commission for a construction, as insisted by appellant, under Texas & P. R. Co. v. American Tie & Timber Co. 234 U. S. 138, 146, 58 L. ed. 1255, 1258, 34 Sup. Ct. Rep. 885. Sup. Ct. 1908.] [For other cases, see Powers, I. a, in Digest Powers rights of creditors of donee. 6. 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. [For other cases, see Powers, I. a, in Digest Sup. Ct. 1908.] Powers distribution of property as part of donee's estate. 7. 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. Note. As to inheritance or succession tax on property covered by power of appointment-see notes to Minot v. Stevens, 33 L.R.A. (N.S.) 236; and Hill v. Treasurer, L.R.A.1918D, 339. On property covered by power of appointment as assets of donee's estate-see note to Vinton v. Pratt, L.R.A.1918D, 346. As to succession tax on property covered by deed under power of appointment -see note to Re Wendel, 5 A.L.R. 183. As to taxes on succession and collateral inheritances-see notes to Re Howe, 2 L.R.A. 825; Wallace v. Myers, 4 L.R.A. 171; Com. v. Ferguson, 10 L.R.A. 240; Re Romaine, 12 L.R.A. 401; Rodman v. Com. 33 L.R.A. (N.S.) 592; State ex rel. Ise v. Cline, 50 L.R.A.(N.S.) 991; and Magoun v. Illinois Trust & Sav. Bank, 2. The conditions expressed conjunctively in the Revenue Act of September 8, 1916, tit. II. § 202 (a), levying an estate tax, cannot be read as if prescribed disjunctively; | 42 L. ed. U. S. 1037. If there be an appointment to volunteers, payment of debts of a deceased apthen, subject to whatever charge creditors pointor. 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. [For other cases, see Powers, I. a, in Digest Sup. Ct. 1908.] 8. Property passing under a testamentary execution of a general power of appointment was not subject to the estate tax imposed by the Revenue Act of September 8, 1916, title II., by the provisions of § 202, that the value of the taxable estate of a decedent shall include the interest of the decedent at the time of his death, which, after his death, is subject to the payment of the charges against his estate and the expenses of its administration, and is subject to distribution as part of his estate, and any interest of which the decedent has at any time made a transfer, or with respect to which he has created a trust in contemplation of, or intended to take effect in possession or enjoyment at or after his death, except in case of a bona fide sale for a fair consideration. [For other cases, see Internal Revenue, III. h, in Digest Sup. Ct. 1908.] [No. 442.] Brandies v. Cochrane, 112 U. S. 344-352, 2 Sugden, Powers, chap. 8, ¶ 7, p. 29; 28 L. ed. 760-763, 5 Sup. Ct. Rep. 194; Knowles v. Dodge, 1 Mackey, 66; Duncanson v. Manson, 3 App. D. C. 260; Clapp v. Ingraham, 126 Mass. 200; Johnson v. Cushing, 15 N. H. 298, 41 Am. Dec. 694; Tallmadge v. Sill, 21 Barb. 34; Rogers v. Hinton, 62 N. C. (Phill. Eq.) 101; 4 Kent, Com. §§ 339, 340; 22 Am. & Eng. Enc. Law, 2d ed. 1147. A general power of appointment is one which the donee of the power can exercise in favor of such person or persons as he pleases. Farwell, Powers, 2d ed. 7. For purposes of taxation, appointment of property under the power is a distribution of such property as part of the appointor's estate. Chanler v. Kesley, 205 U. S. 466, 51 L. ed. 882, 27 Sup. Ct. Rep. 556, 10 Ann. Cas. 689; 26 Am. & Eng. Enc. Law, 605; Minot v. Treasurer (Minot v. Stevens) 207 Mass. 588, 33 L.R.A. (N.S.) 236, 93 N. E. 973; Brandies v. Cochrane, 112 U. S. 344, 352, 28 L. ed. 760, 763, 5 Sup. Ct. Rep. 194; McFall v. Kirkpatrick, 236 Argued December 9, 1920. Decided February Ill. 281, 86 N. E. 139; 4 Kent. Com. 339; 28, 1921. See same case below, 55 Ct. Cl. 430. The facts are stated in the opinion. Assistant Attorney General Davis and Solicitor General Frierson argued the cause, and, with Special Assistant to the Attorney General Schmuck, filed a brief for appellant: Contemporaneous construction of the law by the executive department called upon to carry it into effect is, of itself, entitled to great respect. United States v. Pugh, 99 U. S. 265, 269, 25 L. ed. 322, 323; United States v. Johnston, 124 U. S. 236, 253, 31 L. ed. 389, 396, 8 Sup. Ct. Rep. 446. The testamentary execution by a donee of a general power of appointment effects a transfer of the appointed estate within the meaning of § 202, ¶ (b), of the act. Chanler v. Kelsey, 205 U. S. 466, 51 L. ed. 882, 27 Sup. Ct. Rep. 550; Luques's Appeal, 114 Me. 235, 95 Atl. 1021; MeFall v. Kirkpatrick, 236 Ill. 281, 86 N. E. 139. An appointed estate is subject to the Tallmadge v. Sill, 21 Barb. 34; Duncanson v. Manson, 3 App. D. C: 260; Olney v. Balch, 154 Mass. 318, 28 N. E. 258; Scrafton v. Quincey, 2 Ves. Sr. 413, 28 Eng. Reprint, 264; 2 Sugden, Powers, 3d ed. § 19; Johnson v. Cushing, 15 N. H. 298, 41 Am. Dec. 694; Atty. Gen. v. Upton, L. R. 1 Exch. 224, 4 Hurlst. & C. 336, 35 L. J. Exch. N. S. 138, 12 Jur. N. S. 489, 14 L. T. N. S. 334, 14 Week. Rep. 732. Mr. John P. Wilson argued the cause, and, with Messrs. William B. Hale and Walter Bruce Howe, filed a brief for appellee: Unless the tax collected in this case is imposed by clear and express words in the statute, it cannot be sustained. Gould v. Gould, 245 U. S. 151, 62 L. ed. 211, 38 Sup. Ct. Rep. 53; Treat v. White, 181 U. S. 264, 45 L. ed. 853, 21 Sup. Ct. Rep. 611; Eidman v. Martinez, 184 U. S. 578, 46 L. ed. 697, 22 Sup. Ct. Rep. 515; Hartranft v. Wiegmann, 121 U. S. 609, 30 L. ed. 1012, 7 Sup. Ct. Rep. 1240; Thompson v. United States, 246 U. S. 547-551, 62 L. ed. 876-879, 38 Sup. Ct. Rep. 349; Caminetti v. United States, 242 U. S. 470, 490, 61 L. ed. 442, 455, L.R.A.1917F, 502, 37 Sup. Ct. Rep. 192, Ann. Cas. 1917B, 1168; Re Harbeck, 161 N. Y. 211, 55 N. E. 850; United States v. 1920. UNITED STATES v. FIELD. Bashaw, 1 C. C. A. 653, 4 U. S. App. and in such shares as she should appoint 360, 50 Fed. 749. The Revenue Act of 1916, as construed by the government, does not tax appointed property in all of the states, and therefore cannot be held to tax such property in any of the states, as excise taxes are required by art. 1, § 8, of the Constitution to be uniform throughout the United States. C. C. A., 266 The Revenue Act of 1916 does not contain clear and express words imposing an estate tax upon an interest in property never owned by appellee, but over which she had only a power of appointment. McFall v. Kirkpatrick, 236 Ill. 281, 86 N. E. 139; Keays v. Blinn, 234 Ill. 121, 84 N. E. 628, 14 Ann. Cas. 37; Walker v. Treasurer, 221 Mass. 600, 109 N. E. 647; Shattuck v. Burrage, 229 Mass. 448, 118 N. E. 889; Sifford v. Cutler, 244 Ill. 234, 135 Am. St. Rep. 326, 91 N. E. 428, 18 Ann. Cas. 36; Hallbeck v. Stewart, 69 Ill. App. 225; Hill v. Treasurer, 229 Mass. 474, L.R.A.1918D, 337, 118 N. E. 891; O'Grady v. Wilmot [1916] 2 A. C. 231, 85 L. J. Ch. N. S. 386, 114 L. T. N. S. 1097, 32 Times L. R. 456, 60 Sol. Jo. 456. Mr. Justice Pitney delivered the opinion of the court: This is an appeal from a judgment of the court of claims, sustaining a claim for refund of an estate tax exacted under title II. of the Revenue Act of September 8, 1916, as amended by Act of March 3, 1917 (chap. 463, 39 Stat. at L. 756, 777, chap. 159, 39 Stat. at L. 1000, 1002, Comp. Stat. § 6336 b, Fed. Stat. Anno. Supp. 1918, p. 305). It presents the question whether the act taxed a certain interest that passed under tesfamentary execution of a general power of appointment created prior, but executed subsequent, to its passage. The facts are as follows: Joseph N. by last will and testament. The trust The Revenue Act of 1916, in § 201 "Sec. 202. That the value of the gross "(a) To the extent of the interest therein of the decedent at the time of his death which after his death is subject to the payment of the charges against his estate and the expenses of its administration and is subject to distribution as part of his estate. "(b) To the extent of any interest therein of which the decedent has at any time made a transfer, or with respect to which he has created a trust, in contem 619 1 plation of or intended to take effect in possession or enjoyment at or after his death, except in case of a bona fide sale for a fair consideration in money or money's worth. Any transfer of a material part of his property in the nature of a final disposition or distribution thereof, made by the decedent within two years prior to his death without such a consideration, shall, unless shown to the contrary, be deemed to have been made in contemplation of death within the meaning of this title; The amendment of March 3, 1917 (39 Stat. at L. 1002, chap. 159, Comp. Stat. § 6336 b, Fed. Stat. Anno. Supp. 1918, p. 305), pertains merely to the rates, and need not be further considered.1 The provision quoted from § 202 was construed by the Treasury Department, in U. S. Internal Revenue Regulations No. 37, relating to estate taxes, revised May, 1917, art. XI., as follows: "Property passing under a general power of appointment is to be included as a portion of the gross estate of a decedent appointor." No question being suggested as to the power of Congress [262] to impose a tax upon the passing of property under testamentary execution of a power of appointment created before, but executed after, the passage of the taxing act (see Chanler v. Kelsey, 205 U. S. 466, 473, 478, 479, 51 L. ed. 882, 886, 888, 889, 27 Sup. Ct. Rep. 550; Knowlton v. Moore, 178 U. S. 41, 56–61, 44 L. ed. 969, 975-977, 20 Sup. Ct. Rep. 747), the case involves merely a question of the construction of the act. Applying the accepted canon that the provisions of such acts are not to be extended by implication (Gould v. Gould, 245 U. S. 151, 153, 62 L. ed. 211, 213, 38 Sup. Ct. Rep. 53), we are constrained to the view-notwithstanding the administrative construction adopted by the Treasury Department-that the Revenue Act of 1916 did not impose an estate tax upon property passing under a testamentary execution of a general power of appointment. The government seeks to sustain the tax under both clauses above quoted from § 202. The conditions expressed in clause (a) are to the effect that the taxable estate must be (1) an interest of the decedent at the time of his death, (2) 1 The act was further amended October 3, 1917 (chap. 63. 40 Stat. at L. 300, 324, Comp. Stat. § 6336aa, Fed. Stat. Anno. Supp. 1918, p. 336); superseded and repealed by Act of February 24, 1919 (chap. 18, 40 Stat. at L. 1057, 1096, 1149). which, after his death, is subject to the payment of the charges against his estate and the expenses of its administration, and (3) is subject to distribution as part of his estate. These conditions are expressed conjunctively; and it would be inadmissible, in construing a taxing act, to read them as if prescribed disjunctively. Hence, unless the appointed interest fulfilled all three conditions, it was not taxable under this clause.. The chief reliance of the government is upon the rule, well established in England and followed generally, but not universally, in this country, that where one has a general power of appointment, either by deed or by will, and executes the power, equity will regard the property appointed as part of his assets for the payment of his creditors, in preference to the claims of his voluntary appointees. See Brandies v. Cochrane, 112 U. S. 344, 352, 28 L. ed. 760, 763, 5 Sup. Ct. Rep. 194. [263] The English cases are fully reviewed by the House of Lords in O'Grady v. Wilmot [1916] 2 A. C. 231, 246, et seq., 85 L. J. Ch. N. S. 386, 114 L. T. N. S. 1097, 32 Times L. R. 456, 60 Sol. Jo. 456. Illustrative cases in the American courts are Johnson v. Cushing, 15 N. H. 298, 307, 41 Am. Dec. 694; Rogers v. Hinton, 62 N. C. (Phill. Eq.) 101, 105; Clapp v. Ingraham, 126 Mass. 200, 202; Knowles v. Dodge, 1 Mackey, 66, 72; Freeman v. Butters, 94 Va. 406, 411, 26 S. E. 845; Tallmadge v. Sill, 21 Barb. 34, 51, et seq.; contra, per Gibson, Ch. J., in Com. v. Duffield, 12 Pa. 277, 279-281; Pearce v. Lederer, 262 Fed. 993, affirmed in Lederer v. Pearce, C. C. A., 266 Fed. 497. It is tacitly admitted that the rule obtains in Illinois, and we shall so assume. But the existence of the power does not of itself vest any estate in the donee. Collins v. Wickwire, 162 Mass. 143, 144, 38 N. E. 365; Keays v. Blinn, 234 Ill. 121, 124, 84 N. E. 628, 14 Ann. Cas. 37; Walker v. Treasurer, 221 Mass. 600, 602, 603, 109 N. E. 647; Shattuck v. Burrage, 229 Mass. 448, 451, 118 N. E. 889. See Carver v. Jackson, 4 Pet. 1, 93, 7 L. ed. 761, 793. Where the donee dies indebted, having executed the power in favor of volunteers, the appointed property is treated as equitable, not legal, assets of his estate (Clapp v. Ingraham, 126 Mass. 200, 203; Patterson v. Lawrence, 83 Ga. 703, 707, 7 L.R.A. 143, 10 S. E. 355); and (in the absence of statute), if it passes to the executor at all, it does so not by |