trators, or assigns. He died in 1917, formed, or that its obligation does not and his administratrix collected the extend to future acquisitions. Industry, stipulated sums, amounting to $4,433.33. talents, and integrity constitute a fund The succession was insolvent, and the which is as confidently trusted as properbanks sought to subject the insurance ty itself. Future acquisitions are, theremoney to their claims, maintaining that, fore, liable for contracts; and to release if construed and applied so as to exempt them from this liability impairs their such funds, the Act of 1914 would im- obligation." And, in Planters' Bank v. pair the obligations of their contracts Sharp, 6 How. 327, 12 L. ed. 458, opinion and violate § 10, article 1, Federal Con- by Mr. Justice Woodbury: "One of the stitution. The supreme court of the tests that a contract has been impaired state held that acceptance of the renew- is, that its value has by legislation been al notes did not operate as novations, diminished. It is not, by the Constitubut that the statute protected the insur- tion, to be impaired at all. This is not ance money without violating the Fed- a question of degree or manner or cause, eral Constitution, since the exemption but of encroaching in any respect on its "impaired the obligation of the pre-ex- obligation,-dispensing with any part of isting contract very slightly and re- its force." Ogden v. Saunders, 12 Wheat. motely." 146 La. 385, 83 So. 664. 213, 257, 6 L. ed. 606, 621; [129] Mc

Sec. 10, article 1 of the Constitution, Cracken v. Hayward, 2 How. 608, 612, -"No state shall pass any 11 L. ed. 397, 399; Edwards v. Kearzey, law impairing the obligation of 96 U. S. 595, 600, 24 L. ed. 793, 796. contracts," has been much considered by this court, and often applied to preserve the integrity of contractual obligations.

So far as the Statute of 1914 undertook to exempt the policies and their proceeds from antecedent debts, it came into conflict with the Federal Constitution. See Lessley v. Phipps, 49 Miss. 790; Johnson v. Fletcher, 54 Miss. 628, 28 Am. Rep. 388; Rice v. Smith, 72 Miss. 42, 16 So. 417; Re Heilbron, 14 Wash. 536, 35 L.R.A. 602, 45 Pac. 153; Skinner v. Holt, 9 S. D. 427; Homestead Cases, 22 Gratt. 266, 12 Am. Rep. 507.

The judgment of the court below must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed.

[128] When the deceased took out the policies of insurance upon his life, they became his property, subject to claims of his creditors. Mutual L. Ins. Co. v. Armstrong, 117 U. S. 591, 597, 29 L. ed. 997, 999, 6 Sup. Ct. Rep. 877; Central Nat. Bank v. Hume, 128 U. S. 195, 204, 32 L. ed. 370, 375, 9 Sup. Ct. Rep. 41; Burlingham v. Crouse, 228 U. S. 459, 471, 472, 57 L. ed. 920, 926, 46 L.R.A. (N.S.) 148, 33 Sup. Ct. Rep. 564; Re Coleman, 69 C. C. A. 496, 136 Fed. 818; Re Bonvillain, 232 Fed. 372; Blinn v. Dane, 207 Mass. 159, 93 N. E. 601, 20 Ann. Cas. 1184; Re Heilbron, 14 Wash. 536, 52 L.R.A. 602, 45 Pac. 153; Rice v. Smith, 72 Miss. 42, 16 So. 417; Skinner v. Holt, 9 S. D. 427, 62 Am. St. Rep. MILLER & LUX, Incorporated, Plff. in 878, 69 N. W. 595; Joyce, Ins. § 2341.

Mr. Justice Clarke dissents.

Err.,

V.

AGE DISTRICT.

(See S. C. Reporter's ed. 129-131.)

Error to state court
dismissal
unsubstantial Federal question.
1. A writ of error from the Federal

In Sturges v. Crowninshield, 4 Wheat. 197, 198, 4 L. ed. 549, opinion by Mr. SACRAMENTO & SAN JOAQUIN DRAINChief Justice Marshall, it was said: "What is the obligation of a contract, and what will impair it? It would seem difficult to substitute words which are more intelligible, or less liable to misconstruction, than those which are to be explained. A contract is an agreement in which a party undertakes to do, or Note. On the general subject of not to do, a particular thing. The law writs of error from the United States binds him to perform his undertaking, Supreme Court to state courts-see notes and this is, of course, the obligation of to Martin v. Hunter, 4 L. ed. U. S. 97; his contract. Any law which Hamblin v. Western Land Co. 37 L. ed. releases a part of this obligation must, U. S. 267; Re Buchanan, 39 L. ed. U. S. in the literal sense of the word, impair 884; and Kipley v. Illinois, 42 L. ed. U. it. . . But it is not true that the S. 998. parties have in view only the property in possession when the contract is

On what adjudications of state courts can be brought up for review in the Su

Supreme Court to a state court must be fix the tax or assessment, but delegates dismissed where the Federal question in- to some subordinate body the duty of volved had, when the writ was sued out, determining whether and in what amount become too unsubstantial to support the and upon what land the tax shall be Federal jurisdiction of the Federal Sulevied, due process of law requires that, preme Court. at some stage of the proceedings, before the tax or assessment becomes irrevocably fixed, the taxpayer must have an opportunity to be heard. In this case the act did not determine what land should be assessed, but left that to executive officers.

[For other cases, see Appeal and Error, VII. 1, 2, in Digest Sup. Ct. 1908.] Constitutional law

- due process of law drainage districts assessments benefits.

2. In the absence of flagrant abuse or purely arbitrary action, a state may establish drainage districts and tax lands therein for local improvements, and none of such lands may escape liability solely because they will not receive direct benefits. [For other cases, see Constitutional Law, 561-581, in Digest Sup. Ct. 1908.]

[No. 347.]

Georgia R. & Bkg. Co. v. Wright, 207 U. S. 127, 52 L. ed. 134, 28 Sup. Ct. Rep. 47, 12 Ann. Cas. 463; Londoner v. Denver, 210 U. S. 273, 385, 52 L. ed. 1103, 1112, 28 Sup. Ct. Rep. 708; Turner v. Wade, 254 U. S. 64, ante, 134, 41 Sup. Ct. Rep. 27; Fallbrook Irrig. Dist. v. Brad

Argued March 9 and 10, 1921. Decided ley, 164 U. S. 112, 41 L. ed. 369, 17 Sud.

IN

April 11, 1921.

N ERROR, and ON PETITION for Certiorari, to the Supreme Court of the State of California to review a judgment which affirmed a judgment of the Superior Court for Merced County, in that state, upholding a drainage assessment. Writ of error dismissed. Petition for certiorari denied.

See same case below, 182 Cal. 252, 187 Pac. 1041.

The facts are stated in the opinion. Mr. Edward F. Treadwell argued the cause and filed a brief for plaintiff in

As to what constitutes due process of law, generally-see notes to People v. O'Brien, 2 L.R.A. 255; Kuntz v. Sumption, 2 L.R.A. 655; Re Gannon, 5 L.R.A. 359; Ulman v. Baltimore, 11 L.R.A. 224; Gilman v. Tucker, 13 L.R.A. 304; Pearson v. Yewdall, 24 L. ed. U. S. 436; and Wilson v. North Carolina, 42 L. ed. U. S. 865.

As to property liable for assessment for construction of drains or sewers-see notes to Heffner v. Cass & Morgan Counties, 58 L.R.A. 353, and Billings Sugar Co. v. Fish, 26 L.R.A. (N.S.) 973.

On validity of rule of assessment for drainage improvement-see note to Harmon v. Bolley, 2 A.L.R. 625.

Ct. Rep. 56; Hancock v. Muskogee, 250
U. S. 454, 63 L. ed. 1081, 39 Sup. Ct.
Rep. 528.

The rule that the action of the legislature raises a conclusive and indisputable presumption of benefit does not obtain where the legislature leaves the determination of what lands shall be assessed to subordinate officers.

Fallbrook Irrig. Dist. v. Bradley, 164 U. S. 112, 174, 41 L. ed. 369, 394, 17 Sup. Ct. Rep. 56.

The legislature could not constitutionally assess the plaintiff's property for improvements which in no way benefited that property, and could not constitutionally deprive plaintiff of the opportunity of showing that its property was thereby taken without due process of law. The conclusive presumption of benefit does not obtain when the act or assessment is attacked on constitutional grounds.

Myles Salt Co. v. Iberia & St. M. Drainage Dist. 239 U. S. 478, 60 L. ed. 392, L.R.A.1918E, 190, 36 Sup. Ct. Rep. 204; Goldsmith v. George G. Prendergast Constr. Co. 252 U. S. 12, 64 L. ed. 427, 40 Sup. Ct. Rep. 273; Phillip Wagner v. Leser, 239 U. S. 207, 60 L. ed. 230, 36 Sup. Ct. Rep. 66; Hancock v. Muskogee, 250 U. S. 454, 63 L. ed. 1081, 39 Sup. Ct. Rep. 528.

A special assessment on a local distriet for public improvements must be apportioned in accordance with the benefits which will accrue to the lands assessed.

25 Am. & Eng. Enc. Law, 1194; Spring Street Co. v. Los Angeles, 170 Cal. 24. L.R.A.1918E, 197, 148 Pac. 217; Myles Salt Co. v. Iberia & St. M. Drainage Dist. supra; Norwood v. Baker, 172 U. S. 269, 43 L. ed. 443, 19 Sup. Ct. Rep. 187; Martin v. District of Columbia, 205 U. S. 135,

Mr. Charles S. Peery argued the cause, and Mr. Jeremiah F. Sullivan filed a brief for defendant in error: The legislative determination can be assailed under the 14th Amendment only where the legislative action is arbitrary, wholly unwarranted, a flagrant abuse, and, by reason of its arbitrary character, a confiscation of particular property.

51 L. ed. 743, 27 Sup. Ct. Rep. 440; 5 Mor. Min. Rep. 438; Lorenz v. Jacob, Loeb v. Columbia Twp. 91 Fed. 37; Han- 63 Cal. 73; Amador Queen Min. Co. v. cock v. Muskogee, supra; Reclamation Dewitt, 73 Cal. 482, 15 Pac. 74; WoodDist. v. West, 129 Cal. 622, 62 Pac. 272; ruff v. North Bloomfield Gravel Min. Co. People ex rel. Chapman v. Sacramento 18 Fed. 753; 2 Willoughby, Const. § 524. Drainage Dist. 155 Cal. 386, 103 Pac. 207; People v. Parks, 58 Cal. 656; Lower Kings River Reclamation Dist. v. Phillips, 108 Cal. 306, 39 Pac. 630, 41 Pac. 335; Reclamation Dist. v. Runyon, 117 Cal. 164, 49 Pac. 131; Reclamation Dist. v. Burger, 122 Cal. 442, 55 Pac. 156; Swamp Land Dist. v. Gwynn, 70 Cal. 566, 12 Pac. 462; Reclamation Dist. v. Evans, 61 Cal. 104; Swamp Land Reclamation Dist. v. Blumenberg, 156 Cal. 532, 106 Pac. 389; Payne v. Ward, 23 Cal. App. 492, 138 Pac. 967; Reclamation Dist. v. Bonbini, 158 Cal. 197, 110 Pac. 577; Reclamation Dist. v. Sherman, 11 Cal. App. 399, 105 Pac. 277; Ryan v. Altschul, 103 Cal. 174, 37 Pac. 339; San Jose Improv. Co. v. Auzerais, 106 Cal. 498, 39 Pac. 859; California Improv. Co. v. Moran, 128 Cal. 373, 60 Pac. 969.

An assessment made on an acreage basis, or on a front-foot basis, or some other basis specified by the legislature, may be presumptively valid; but if it appears that an assessment made on such a basis is not really in accordance with benefits, it is invalid.

Spring Street Co. v. Los Angeles, 170 Cal. 24, L.R.A.1918E, 197, 148 Pac. 217; Norwood v. Baker, 172 U. S. 269, 43 L. ed. 443, 19 Sup. Ct. Rep. 187; Bennett v. Emmetsburg, 138 Iowa, 82, 115 N. W. 582; McKee v. Pendleton, 154 Ind. 652, 57 N. E. 532; Kersten v. Milwaukee, 106 Wis. 200, 48 L.R.A. 851, 81 N. W. 948, 1103; Friedrich v. Milwaukee, 118 Wis. 254, 95 N. W. 126; Haubner v. Milwaukee, 124 Wis. 158, 101 N. W. 930, 102 N. W. 578; State, New York & G. L. R. Co., Prosecutor, v. Kearney Twp. 55 N. J. L. 463, 26 Atl. 800; State, Kohler, Prosecutor, v. Guttenberg, 38 N. J. L. 419; Re Walnut Street, 10 Pa. Co. Ct. 173; State, Hampson, Prosecutor, v. Paterson, 36 N.

J. L. 159.

The act under which the assessment is levied is unconstitutional because it provides for assessing the agricultural lands of the plaintiff and others for taking care of mining débris, and making it possible to carry on hydraulic mining, which is not a public use, but a private enterprise, and is not an improvement local to the lands assessed, but one that would be for the direct benefit of the mining industry.

Gillan v. Hutchinson, 16 Cal. 153, 2 Mor. Min. Rep. 317; Consolidated Channel Co. v. Central P. R. Co. 51 Cal. 269,

Branson v. Bush, 251 U. S. 182, 64 L. ed. 215, 40 Sup. Ct. Rep. 113; Goldsmith v. George G. Prendergast Constr. Co. 252 U. S. 12, 64 L. ed. 427, 40 Sup. Ct. Rep. 273; Houck v. Little River Drainage Dist. 239 U. S. 264, 60 L. ed. 274, 36 Sup. Ct. Rep. 58.

Whenever, by the laws of the state, or by state authority, a tax, assessment, servitude, or other burden is imposed upon property for the public use, whether it be of the whole state or some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed in the ordinary courts of justice, with such notice to the person, or such proceedings in regard to the property, as is appropriate to the nature of the case, the judgment in such proceedings cannot be said to deprive the owner of his property without due process of law, however obnoxious it may be to other objections.

Davidson v. New Orleans, 96 U. S. 97, 104, 24 L. ed. 616, 619; Fallbrook Irrig. Dist. v. Bradley, 164 U. S. 112, 179, 41 L. ed. 369, 395, 17 Sup. Ct. Rep. 56.

The lands of plaintiff in error having been included by the legislature within the area covered by the Sacremento & San Joaquin Drainage District, the law indisputably presumes that such lands will be benefited by the work contemplated by the statute.

People ex rel. Chapman v. Sacramento Drainage Dist. 155 Cal. 373, 103 Pac. 207; Los Angeles County Flood Control Dist. v. Hamilton, 177 Cal. 119, 169 Pac. 1028; Reclamation Dist. v. Birks, 159 Cal. 233, 113 Pac. 170; Re Madera Irrig. Dist. Bonds, 92 Cal. 296, 14 L.R.A. 755, 27 Am. St. Rep. 106, 28 Pac. 272, 675; Emery v. San Francisco Gas Co. 28 Cal. 345; Burnett v. Sacramento, 12 Cal. 76, 73 Am. Dec. 518.

Has the decision of this court in Myles Salt Co. v. Iberia & St. M. Drainage Dist. 239 U. S. 478, 60 L. ed. 392, L.R.A. 1918E, 190, 36 Sup. Ct. Rep. 204, over

thrown the doctrine established in a long, 921; People ex rel. Chapman v. Sacraline of cases illustrated by Re Madera mento Drainage Dist. 155 Cal. 386, 103 Irrig. Dist. Bonds, 92 Cal. 296, 14 A.L.R. Pac. 207; San Christina Invest. Co. v. 755, 27 Am. St. Rep. 106, 28 Pac. 272, San Francisco, 167 Cal. 762, 52 L.R.A. 675, and Los Angeles County Flood Con- (N.S.) 676, 141 Pac. 384; Los Angeles trol Dist. v. Hamilton, 177 Cal. 119, 169 County Flood Control Dist. v. Hamilton, Pac. 1028; Houck v. Little River Drain- 177 Cal. 119, 169 Pac. 1028. age Dist. 239 U. S. 264, 60 L. ed. 274, 36 Sup. Ct. Rep. 58; Mt. St. Mary's Cemetery Asso. v. Mullins, 248 U. S. 501, 63 L. ed. 383, 39 Sup. Ct. Rep. 173; Phillip Wagner v. Leser, 239 U. S. 207, 60 L. ed. 230, 36 Sup. Ct. Rep. 66.

People ex rel. Chapman v. Sacramento Drainage Dist. 155 Cal. 373, 103 Pac. 207. The plaintiff in error was accorded a full hearing upon the question as to whether its lands should be assessed, as well as respecting the amount of such assessment (a) before the assessors who levied the assessment, and (b) before 26 L. ed. 658; Pittsburgh, C. C. & St. the reclamation board, which hearings themselves satisfied the constitutional provision under which plaintiff in error invokes the jurisdiction of this court.

v. Sherman, 11 Cal. App. 402, 105 Pac. 277; Riverdale Reclamation Dist. v. Shimmin, 24 Cal. App. 596, 141 Pac. 1070; Inglin v. Hoppin, 156 Cal. 483, 105 Pac. 582.

The assessment was not constitutionally defective because the plan contemplated, among other things, débris control.

People ex rel. Chapman v. Sacramento Drainage Dist. 155 Cal. 373, 103 Pac. 207. The mere fact that the comprehensive plan, when completed, may not be effectual, presents no reason for avoiding the assessment.

tablish drainage districts and tax lands therein for local improvements, and that none of such lands may escape liability solely because they will not receive direct benefits. The allegations of the original [131] complaint are wholly insufficient to raise the issue in respect of arbitrary legislative action presented bv Myles Salt Co. v. Iberia & S. M. Drainage Dist. 239 U. S. 478, 60 L. ed. 392, L.R.A.1918E, 190, 36 Sup. Ct. Rep. 204.

The petition for certiorari is denied and the writ of error is dismissed.

Reclamation Dist. v. Birks, 159 Cal. 241, 113 Pac. 170; Houck v. Little River RE NATIONAL PARK BANK of New Drainage Dist. 239 U. S. 254, 60 L. ed. 266, 36 Sup. Ct. Rep. 58.

[130] Mr. Justice McReynolds delivered the opinion of the court:

York, Petitioner.

(See S. C. Reporter's ed. 131-133.)

The failure of a Federal circuit court

of appeals in its decree to dispose of one of the claims in suit will not be corrected by mandamus, where the relator failed adequately to call the court's attention to such omission during the term, or to seek relief in the Federal Supreme Court by petition for a writ of certiorari.

[For other cases, see Mandamus, II. b, in Digest Sup. Ct. 1908.]

ON

[No. 28, Original.]

1921.

N PETITION for a Writ of ManCircuit Court of Appeals for the Fifth damus to require the United States Circuit to enter a final judgment disposing of one of the claims in suit. Rule discharged. Petition dismissed.

The facts are stated in the opinion.

This cause is here upon writ of error to the supreme court of the state of California, 182 Cal. 252, 187 Pac. 1041. There is also an application for certiorari, but, under the settled practice, no adequate grounds therefor are shown. By the Act of August 10, 1913 (Stat. 1913, p. 252), the legislature of California undertook to create the Sacramento & San Joaquin Drainage District, including 1,725,553 acres along the general course of the Sacramento and San Argued March 15, 1921. Decided April 11, Joaquin rivers, and particularly an extensive area south of Stockton. The reclamation board, appointed as directed by the statute, levied a tax of $250,000 for general preliminary expenses incidental to the project, and appointed assessors to apportion the same. Certain of plaintiff in error's lands lying south of Stockton were assessed at 5 cents per acre, and to annul this assessment it began the present proceeding. In support of the writ of error, reliance is placed upon the contention that, as construed by the state courts, the Act of 1913 denies plaintiff in error opportunity to show that its lands will receive no special or direct benefits from the proposed works, and therefore conflicts with the 14th Amendment. But we think that when the writ was sued out (May, 1920), this claim had already become too unsubstantial to support our jurisdiction as defined by the Act of September 6, 1916 (39 Stat. at L. 726, chap. 448, Comp. Stat. § 1207). Since Houck v. Little River Drainage Dist. (1915) 239 U. S. 254, 60 L. ed. 266, 36 Sup. Ct. Rep. 58, the doctrine has been definitely settled that, in the absence of flagrant abuse or purely arbitrary action, a state may es

Mr. Edwin V. Guinan argued the cause, and, with Messrs. Louis F. Doyle, I. H. Burney, R. W. Flournoy, and Warren Bigelow, filed a brief for petitioner. No brief was filed for respondent.

Mr. Justice Brandeis delivered the

opinion of the court:

The National Park Band of New York filed in this court a petition for a writ

Note. As to when mandamus is the proper remedy, generally-see notes to United States ex rel. International Contracting Co. v. Lamont, 39 L. ed. U. S. 160; McCluny v. Silliman, 4 L. ed. U. S. 263; Fleming v. Gathrie, 3 L.R.A. 54; Burnsville Turnp. Co. v. State, 3 L.R.A. 265; State ex rel. Charleston, C. & C. R. Co. v. Whitesides, 3 L.R.A. 777; and Ex parte Hun, 13 L.R.A. 120.