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to carry into effect a decree of the Federal APPEAL from the District Court of

Supreme Court in the main cause, which supplemental decree brings to effective conclusion, if not vitiated by error, a controversy that arose out of a railway company's attack on constitutional grounds upon freight rates prescribed by state authority, must be treated as involving a Federal question, so as to justify, under the Judicial Code, § 238, a direct appeal to the Federal Supreme Court, although the only question immediately involved is the proper construction of the tariff prescribed by the state.

[For other cases, see Appeal and Error, 787

789, 938-989, in Digest Sup. Ct. 1908.] Carriers milling-in-transit rates rough heading for barrels.

2. Rough heading for barrels must be regarded as covered as rough material by an item in a tariff of freight rates prescribed by state authority which fixes rough-material rates applicable on rough lumber, staves, flitches, bolts, and logs, conditioned upon a specified percentage of the manufactured product being shipped out on the same line that brought in the rough material, and which specifies in the table of such percentages, "finished staves 40 per cent of weight of rough staves," "staves and heading, 30 per cent of weight of bolts," the purpose being manifest to give the benefit of the milling-in-transit rate to rough material out of which heading is manufactured, and no reason appear ing for limiting it to material of a particular description. [For other cases, see Carriers, III. in Digest

Sup. Ct. 1908.] Carriers charges state commission.

recovery back of excessive previous application to

3. An application to a state railroad commission for a construction of its freight rate tariff need not precede resort by a shipper to the courts to recover back the difference between the rates charged and those fixed by the commission, where the construction of such tariff in the particulars involved is free from doubt. [For other cases, see Carriers, III. in Digest Sup. Ct. 1908.]

[No. 178.]

the United States for the Eastern District of Arkansas to review a decree awarding damages to parties injured by injunction decrees subsequently reversed on appeal. Affirmed.

The facts are stated in the opinion.

John M. Moore submitted the cause for Messrs. George A. McConnell and appellants.

Messrs. W. E. Hemingway, George B. Rose, D. H. Cantrell, and J. F. Loughborough submitted the cause for appellees.

Mr.

Justice Pitney delivered the opinion of the court:

Submitted January 21, 1921. Decided Feb for further proceedings in conformity

ruary 28, 1921.

Note. On direct review in Federal Supreme Court of judgments of distriet or circuit courts-see notes to Gwin v. United States, 46 L. ed. U. S. 741; B. Altman & Co. v. United States, 56 L. ed. U. S. 894; and Berkman v. United States, 63 L. ed. U. S. 877.

As to nature and validity of transit privileges-see note to Mollohan v. Atchison, T. & S. F. R. Co. L.R.A.1918A, 178. As to recovery back of excessive payments to public service corporation-see note to Illinois Glass Co. v. Chicago Teleph. Co. 18 L.R.A. (N.S.) 124.

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This case is a sequel of Allen v. St. Louis, I. M. & S. R. Co. 230 U. S. 553, 57 L. ed. 1625, 33 Sup. Ct. Rep. 1030, and Arkadelphia Mill. Co. v. [253] St. Louis S. W. R. Co. 249 U. S. 134, 63 L. ed. 517, P.U.R.1919C, 710, 39 Sup. Ct. Rep. 237. See also St. Louis, I. M. & S. R. Co. V. McKnight, 244 U. S. 368, 61 L. ed. 1200, 37 Sup. Ct. Rep. 611. The Arkansas Railroad Commission having, in June, 1908, adopted Standard Distance Tariff No. 3, establishing maximum intrastate freight rates, the present appellant railway company attacked its validity in a suit brought against the commission in the

United States circuit court for the eastern district of Arkansas, contending that the rates were noncompensatory, and therefore violative of the "due process of law" clause of the 14th Amendment. A temporary injunction was issued and continued in force until May 11, 1911, when the circuit court entered a final decree making the injunction permanent, and discharging the surety from further liability on the injunction bond. On appeal to this court the decree was reversed June 16, 1913, with directions to dismiss the bill without prejudice, and

with the opinion and decree of this court. 230 U. S. 553. Upon the going down of the mandate, the United States district court (successor of the circuit court) entered a decree in obedience thereto, at the same time making a reference to a special master for the purpose of ascertaining the claims of intervening shippers for refund of the difference paid by them in freight rates between those prescribed by the commission and the higher ones maintained by the railway company during the pendency of the injunction. Under this reference the present appellees J. F. Hasty & Sons presented a claim based

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the difference between rates, points in Arkansas, minimum weight. charged on rough material transported from forest to milling points, and the

¡Here follows a table of rates gradrates provided in the commission tariff uated according to distance.] on such movements. That tariff con- “(b) The above-named rates are contained maximum rates on such lumber, ditional upon the manufactured product applicable generally, and, in addition, being reshipped over the same line provided for a “milling-in-transit priv- bringing in the rough material, and may ilege,” by fixing certain “rough-material be only used subject to the following rates” lower than the others, conditioned conditions: The proportion of the tonupon a specified percentage of a man- nage of outbound manufactured product ufactured product [254] being shipped to the tonnage of inbound rough mateout on the same line that brought in the rial shall not be less than the following: rough material. The railway company excepted to the claim on two grounds: (a) [Here follows a table of percentages that the rough-material rates were dis- applicable to various products; among criminatory, and (b) that they were not them:] applicable to the shipments of Hasty & "Finished staves, 40 per cent of weight Sons because these constituted interstate of rough staves. commerce, and hence were not subject to “Staves and heading, 30 per cent of the commission's rates. The district weight of bolts.” court sustained both exceptions. The At the hearing before the master it resulting decree, so far as adverse to was admitted that the claimants shipped Hasty & Sons, was reversed by this out over the line of road that brought in court (249 U. S. 134, 147-152), and the the rough material the requisite percentcause remanded for further proceedings ages of manufactured product in the in conformity with our opinion. Upon usual course of business; nevertheless, the going down of this mandate there appellant objected to the allowance of were further hearings before the referee the claims, on the ground that item 79 and the district court upon the claim of provided no rate on inbound rough Hasty & Sons and claims of the same heading, but the same was covered by type, presented by three other interven- item 41, and since the general rates proing shippers; and from the resulting de- vided therein were higher than those cree in their favor the present appeal is actually charged, there was no basis for taken. Although the only question im- a refund. The objection was renewed in mediately involved is the proper con- an exception to the master's report, and struction of the Standard Distance Tar- urged at the hearing before the court on iff, we have jurisdiction, as we had in the report and exceptions. The master the Arkadelphia Mill. Co. Case, supra, found that rough heading was covered as because the decree is but supplementary | rough material in item 79, and the disto the main cause,-bringing to effective trict court sustained that conclusion. conclusion, if not vitiated by error, the Appellant's contention is based upon, controversy that arose out of the rail- a literal reading of the opening sentence way company's attack upon the rates on of item 79: “Rough-material rates apconstitutional grounds,—and hence must plicable on rough lumber, staves, flitches, be regarded as involving the construc- bolts, and logs," etc.; and since “rough tion and application of the Constitution heading" is not mentioned here, while of the United States, within the meaning the associated material "staves” is specof g 238, Judicial Code. See 249 U. S. ified, it is contended that rough heading 140-142.

is not provided for. The disputed claims are based, in the [256] From the testimony taken bemain, upon alleged overcharges on rough fore the master it would appear that the material shipped over appellant's road to raw material from which barrel heads are the respective mills of appellees, and made is variously described as rough there manufactured into heading for heading, sawed heading, split heading, barrels. The question is whether item and bolts or heading bolts; but it also 79 of Distance Tariff No. 3 provided a appears that, whatever may be the disrough-material rate for heading. It tinctions, the terms are used loosely and reads as follows:

indiscriminately in the trade and in bill"Item 79. Rough-material rates. ing shipments, material of either descrip

“(a) Rough-material rates applicable tion being considered rough material, on rough lumber, staves, flitches, bolts, and all having been handled by the railand logs, carloads, [255] between all / way company under the rough-material

rate on its own schedules, without regard to particular terms.

We regard appellant's reading of item 79 as altogether too narrow. The scope and effect of the rough-material rates ould be determined not by regarding opening sentence alone, but by lookalso to the list of finished products 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 "bolts," used in connection with staves and heading, should be taken not as confining the ivilege to rough material of a particular form, but in the generic sense in which it is employed in woodworking, as meaning: "A mass of wood from which anything may be cut or 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.

Decree affirmed.

[257] UNITED STATES, Appt.,

V.

STANLEY FIELD, as Executor of Estate of Kate Field, Deceased.

(See S. C. Reporter's ed. 257–265.)

Statutes tax.

construction

the

levying of

1. The provisions of statutes levying taxes are not to be extended by implication.

[For other cases, see Statutes, II. a, in Digest Sup. Ct. Rep. 1908.] Internal revenue

estate tax- condi

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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.

tions.

[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, Brandies v. Cochrane, 112 U. S. 344-352,

2 Sugden, Powers, chap. 8, 1 7, p. 29; but to his appointees under the power. [For other cases, see Powers, 1. a, in Digest 28 L. ed. 760–763, 5 Sup. Ct. Rep. 194; Sup. Ct. 1908.)

Knowles v. Dodge, 1 Mackey, 66; DunInternal revenue — estate tax power canson v. Manson, 3 App. D. C. 260;

of appointment testamentary execu- Clapp V. Ingraham, 126 Mass. 200; tion.

Johnson v. Cushing, 15 N. H. 298, 41 Am. 8. Property passing under a testamentary execution of a general power of

Dec. 694; Tallmadge v. Sill, 21 Barb. 34; appointment was not subject to the estate Rogers v. Hinton, 62 N. C. (Phill. Eq.) tax imposed by the Revenue Act of Sep. 101; 4 Kent, Com. $$ 339, 340; 22 Am. tember 8, 1916, title II., by the provisions & Eng. Enc. Law, 2d ed. 1147. of $ 202, that the value of the taxable A general power of appointment is one estate of a decedent shall include the inter- which the donee of the power can exerest of the decedent at the time of his death, cise in favor of such person or persons which, after his death, is subject to the

as he pleases. payment of the charges against his estate and the expenses of its administration, and

Farwell, Powers, 2d ed. 7. is subject to distribution as part of his

For purposes of taxation, appointment estate, and any interest of which the de- of property under the power is a distribucedent has at any time made a transfer, or tion of such property as part of the apwith respect to which he has created a pointor's estate. trust in contemplation of, or intended to Chanler v. Kesley, 205 U. S. 466, 51 take effect in possession or enjoyment at or L. ed. 882, 27 Sup. Ct. Rep. 556, 10 Ann. after his death, except in case of a bona Cas. 689; 26 Am. & Eng. Enc. Law, 605; fide sale for a fair consideration. [For other cases, see Internal Revenue, III. Minot v. Treasurer (Minot v. Stevens) h, in Digest Sup. Ct. 1908.]

207 Mass. 588, 33 L.R.A.(N.S.) 236, 93

N. E. 973; Brandies v. Cochrane, 112 U. (No. 442.]

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.

Tallmadge v. Sill, 21 Barb. 34; Duncan

son v. Manson, 3 App. D. C: 260; Olney APPEAL Balch,

review a judgment sustaining a Scrafton v. Quincey, 2 Ves. Sr. 413, 28 claim for a refund of an estate tax. Eng. Reprint, 264; 2 Sugden, Powers, 3d Affirmed.

ed. § 19; Johnson v. Cushing, 15 N. H. See same case below, 55 Ct. Cl. 430.

298, 41 Am. Dec. 694; Atty. Gen. v. UpThe facts are stated in the opinion. ton, L. R. 1 Exch. 224,4 Hurlst. & C. 336,

Assistant Attorney General Davis and 35 L. J. Exch. N. S. 138, 12 Jur. V. S. Solicitor General Frierson argued the 489, 14 L. T. N. S. 334, 14 Week. Rep.

732. cause, and, with Special Assistant to the Attorney General Schmuck, filed a Mr. John P. Wilson argued the cause, brief for appellant:

and, with Messrs. William B. Hale and Contemporaneous construction of the Walter Bruce Howe, filed a brief for aplaw by the executive department called pellee: upon to carry it into effect is, of itself, Unless the tax collected in this case is entitled to great respect.

imposed by clear and express words in United States v. Pugh, 99 U. S. 265, the statute, it cannot be sustained. 269, 25 L. ed. 322, 323; United States Gould v. Gould, 245 U. S. 151, 62 L. v. Johnston, 124 U. S. 236, 253, 31 L. ed. ed. 211, 38 Sup. Ct. Rep. 53; Treat v. 389, 396, 8 Sup. Ct. Rep. 446.

White, 181 U. S. 264, 45 L. ed. 853, 21 The testamentary execution by a donee Sup. Ct. Rep. 611; Eidman v. Martinez, of a general power of appointment ef- 181 U. S. 578, 46 L. ed. 697, 22 Sup. Ct. fects a transfer of the appointed estate Rep. 515; Hartranft v. Wiegmann, 121 within the meaning of § 202, I (b), of U. S. 609, 30 L. ed. 1012, 7 Sup. Ct. Rep. the act.

1240; Thompson v. United States, 246 U. Chanler v. Kelsey, 205 U. S. 466, 51 L. S. 547–551, 62 L. ed. 876–879, 38 Sup. ed. 882, 27 Sup. Ct. Rep. 550; Luques's Ct. Rep. 319; Caminetti v. United States, Appeal, 114 Me. 235, 95 Atl. 1021; Me- 242 U. S. 470, 490, 61 L. ed. 442, 455, Fall v. Kirkpatrick, 236 Ill. 281, 86 N. E. L.R.A.1917F, 502, 37 Sup. Ct. Rep. 192, 139.

Ann. Cas. 1917B, 1168; Re Harbeck, 161 An appointed estate is subject to the N. Y. 211, 55 N. E. 850; United States v.

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UNITED STATES v. FIELD.

1920.

Bashaw, 1 C. C. A. 653, 4 U. S. App., and in such shares as she should appoint 360, 50 Fed. 749.

by last will and testament. The trust The Revenue Act of 1916, as construed was to continue until the death of the by the government, does not tax ap- last surviving grandchild of the tespointed property in all of the states, and tator, who was living at the time of his therefore cannot be held to tax such prop-death, and, at its termination, the undiserty in any of the states, as excise taxes tributed estate was to be divided among are required by art. 1, § 8, of the Con- named beneficiaries or their issue, per stitution to be uniform throughout the stirpes, in proportions specified. Kate United States.

Field died April 29, 1917, a resident of Lederer v. Pearce, C. C. A. —, 266 Illinois, leaving a will which was duly Fed. 497; Knowlton v. Moore, 178 U. S. probated in that state, by which she ex41, 86, 44 L. ed. 969, 987, 20 Sup. Ct. ecuted the power of appointment, directRep. 747.

ing that the income to which the power The Revenue Act of 1916 does not con- related should be paid in equal shares tain clear and express words imposing an to her children surviving at the date of estate tax upon an interest in property the respective payments, the issue of any never owned by appellee, but over which deceased child to stand in the place of she had only a power of appointment.

such deceased child. The collector of inMcFall v. Kirkpatrick, 236 Ill. 281, 86 ternal revenue, assuming to act under N. E. 139; Keays v. Blinn, 234 Ill. 121, the Revenue Act of 1916, as amended, 84 N. E. 628, 14 Ann. Cas. 37; Walker v. and regulations issued by the CommisTreasurer, 221 Mass. 600, 109 N. E. 647; sioner of Internal Revenue, included as Shattuck v. Burrage, 229 Mass. 448, 118 a part of the gross estate of Kate Field N. E. 889; Sifford v. Cutler, 244 II. 234, the appointed estate passing under her 135 Am. St. Rep. 326, 91 N. E. 428, 18 execution of the power; and proceeded Ann. Cas. 36; Hallbeck v. Stewart, 69 to assess and collect an estate tax based Ill. App. 225; Hill v. Treasurer, 229 upon the net value thereof, and amountMass. 474, L.R.A.1918D, 337, 118 N. E. ing to $121,059.60. Her executor, having 891; O'Grady v. Wilmot (1916] 2 A. C. paid the tax under protest, and having 231, 85 L. J. Ch. N. S. 386, 114 L. T. N. made a claim for refund which was conS. 1097, 32 Times L. R. 456, 60 Sol. Jo. sidered and rejected by the Commission456.

er of Internal Revenue, brought this suit

and recovered judgment, from which the Mr. Justice Pitney delivered the opin- United States appeals. ion of the court:

The Revenue Act of 1916, in 201 This is an appeal from a judgment of (39 Stat. at L. 777, chap. 463), imposes the court of claims, sustaining a claim a tax equal to specified percentages of for refund of an estate tax exacted un- | the value of the net estate “upon the der title II. of the Revenue Act of Sep-| transfer of the net estate of every detember 8, 1916, as amended by Act of cedent dying after the passage of this March 3, 1917 (chap. 463, 39 Stat. at L. act.” By § 203 (p. 778) the value of 756, 777, chap. 159, 39 Stat. at L. 1000, the net estate is to be determined by 1002, Comp. Stat. § 63362 b, Fed. Stat. subtracting from the value of the gross Anno. Supp. 1918, p. 305). It presents estate certain [261] specified deductions. the question whether the act taxed a The gross estate is to be valued as folcertain interest that passed under tes | lows: tamentary execution of a general power

“Sec. 202. That the value of the gross of appointment created prior, but ex- estate of the decedent shall be deterecuted subsequent, to its passage. mined by including the value at the time

The facts are as follows: Joseph N. of his death of all property, real or perField, a citizen and resident of Illinois, sonal, tangible or intangible, wherever died April 29, 1914, leaving a will which situated : was duly admitted to probate in that “(a) To the extent of the interest state, and by which he gave the residue therein of the decedent at the time of of his estate, after payment of certain his death which after his death is sub[260] legacies, to trustees, with provi-ject to the payment of the charges sion that one third of it should be set against his estate and the expenses of apart and held as a separate trust fund its administration and is subject to disfor the benefit of his wife, Kate Field, the tribution as part of his estate. net income to be paid to her during life, “(b) To the extent of any

interest and from and after her death the net herein of which the decedent has at any income of one half of said share of the time made a transfer, or with respect to trust estate to be paid to such persons which he has created a trust, in contem

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