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sonal matter are subject to impairment It is objected finally that chapter 951, by a state law, and we submit, as we above stated, in so far as it required argued in the Hirsh Case, that if the active services to be rendered to the state have such powèr-if its power is tenants, is void on the rather singular superior to article 1, § 10, and the 14th ground that it infringes the 13th Amend- Amendment-it is superior to every othment. It is true that the traditions er limitation upon every power expressed of our law are opposed to compelling a in the Constitution of the United States, man to perform strictly personal serv- commits rights of property to a state's ices against his will, even when he has unrestrained conceptions of its interests, contracted to render them. But the and any question of them-remedy services in question, although involving against them-is left in such obscurity some activities, are so far from personal as to be a denial of both. There is a that they constitute the universal and concession of limitation, but no defininecessary incidents of modern apart- tion of it, and the reasoning of the opinment houses. They are analogous to the ion, as we understand it, and its imservices that, in the old law, might is-plications and its incident, establish sue out of or be attached to land. We practically unlimited power. perceive no additional difficulties in this statute, if applicable as assumed. The whole case was well discussed below, and we are of opinion that the decree should be affirmed.

Decree affirmed.

Mr. Justice McKenna, The CHIEF JUSTICE, Mr. Justice Van Devanter, and Mr. Justice McReynolds dissent:

This case was submitted with Block v. Hirsh, No. 640 [256 U. S. 135, ante, 865, 16 A.L.R. 165, 41 Sup. Ct. Rep. 458].

Like that case, it involves the right of a lessee of property-in this case an apartment in an apartment house in New York city to retain possession of it under a law of New York, after the expiration of the lease. This case is an emphasis of the other, and the argument in that applies to this. It may be more directly applicable, [200] for in this case the police power of the state is the especial invocation, and the court's judgment is a concession to it. And, as we understand the opinion, in broader and less hesitating declaration of the extent and potency of that power. "More emphasis," it is said, "is laid upon the impairment of the obligation of the contract" than in the Hirsh Case. In measurement of this as a reliance, it is said: "But contracts are made subject to this exercise of the power of the state when otherwise justified, as we have held this to be." The italics are ours, and we estimate them by the cases that are cited in their explanation and support. We are not disposed to a review of the cases. We leave them in reference, as the opinion does, with the comment that our deduction from them is not that of the opinion. There is not a line in any of them that declares that the explicit and definite covenants of private indi

We are not disposed to further enlarge upon the case, or attempt to reconcile the explicit declaration of the Constitution against the power of the state to impair the obligations of a contract, or, under any pretense, to disregard the declaration. It is safer, saner, and more consonant with constitutional pre-eminence and its purposes, [201] to regard the declaration of the Constitution as paramount, and not to weaken it by refined dialectics, or bend it to some impulse or emergency "because of some accident of immediate overwhelming interest which appeals to the feelings, and distorts judgment." Northern Securities Co. v. United States, 193 U. S. 197, 400, 48 L. ed. 679, 726, 24 Sup. Ct. Rep. 436.

We therefore dissent.

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The United States, suing in its own interest to cancel conveyances made by

Note.-On conclusiveness of judgments, generally-see notes to Sharon V. Terry, 1 L.R.A. 572; Bollong v. Schuyler Nat. Bank, 3 L.R.A. 142; Wiese v. San Francisco Musical Fund Soc. 7 L.R.A. 577; Morrill v. Morrill, 11 L.R.A. 155; Shores v. Hooper, 11 L.R.A. 308; Bank of United States v. Beverly, 11 L. ed. U. S. 76; Johnson Steel Street R. Co. v. Wharton, 38 L. ed. U. S. 429; and Southern P. R. Co. v. United States, 42 L. ed. U. S. 355.

heirs of a Creek Indian, of land allotted to, blood shall die leaving issue surviving, him as a homestead out of the Creek tribal born since March fourth, nineteen hunlands, is in no wise concluded by any mat- dred and six, the homestead of such deter, whether of fact or law, at may have ceased allottee shall remain inalienable, been adjudged in a former suit (to which it was not a party) between the heirs and unless restrictions against alienation one claiming under such conveyances. are removed therefrom by the Secre[For other cases, see Judgment, III. k, in tary of the Interior in the manner proDigest Sup. Ct. 1908.] vided in section one hereof, for the use and support of such issue, during their life or lives, until [203] April twentysixth, nineteen hundred and thirty-one; but if no such issue survive, then such

[No. 236.]

Argued March 18, 1921. Decided April 18,

1921.

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Mr. Justice Van Devanter delivered the opinion of the court:

The United States brought this suit to cancel conveyances made by the heirs of a Creek Indian of land allotted to him as a homestead out of the Creek tribal lands. After answer and hearing the district court granted the relief sought, and the circuit court of appeals affirmed the decree. 261 Fed. 351.

The allottee was an Indian of the half blood, and died intestate in 1911, leaving as his heirs a widow, an adult daughter, and a minor son, all of whom were Creek Indians. Thereafter deeds purporting to convey the land to one Privett were executed by the heirs, the deed of the minor son being made by his guardian. These are the convey ances sought to be canceled, and the ground on which they are assailed is that the minor son was born after March 4, 1906, and therefore that the land passed to the heirs subject to the qualification and restriction imposed by a proviso in § 9 of the Act of May 27, 1908, chap. 199, 35 Stat. at L. 312, 3 Fed. Stat. Anno. 2d ed. p. 890, which declares:

"That if any member of the Five Civilized Tribes of one half or more Indian

allottee, if an adult, may dispose of his

homestead by will free from all restrictions; if this be not done, or in the event the issue hereinbefore provided for die before April twenty-sixth, nineteen hundred and thirty-one the land shall then descend to the heirs," etc.

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The minor son is still living, and, if he was born after March 4, 1906, it is conceded that the heirs took the land subject to the qualification and restriction imposed by the proviso (see Parker V. Riley, 250 U. S. 66, 63 L. ed. 847, 39 removal of the restriction by the SecSup. Ct. Rep. 405), that there was retary of the Interior, and that the conveyances made by the heirs are void. But it is urged, first, that the evidence produced at the hearing shows that the minor son was born before, and not after, March 4, 1906, and, secondly, that, in any event, it was settled conclusively in a prior suit that he was born February 23, 1906.

The district court found that the date of the son's birth was April 23, 1906, and the circuit court of appeals acquiesced in that finding without particularly discussing the point in its opinion. The evidence has been examined, and, in our opinion, it amply supports the finding.

The reliance on the decision in the prior suit is ill-founded. That suit was between the heirs and one who was claiming under these conveyances, the United States not being a party, and the decree therein pronounced the conveyances valid. This suit is brought by the United States in virtue of its interest in maintaining the restriction and safeguarding the Indians in the possession and enjoyment of the lands allotted out of the tribal domain. As yet the Indians have not been fully discharged from the guardianship of the United States. "During the continuance of this guardianship, the right and duty of the nation to enforce by all appropriate means the restrictions designed for the security of the Indians cannot [204] be gainsaid. While relat

ing to the welfare of the Indians, the, within the meaning of a contract calling maintenance of the limitations which for the through transportation of Army Congress has prescribed as a part of its officers and enlisted men for the United plan of distribution is distinctly an in- States at a specified rate unless that rate terest of the United States." Heckman should be found to be in excess of the "regular tariff rate," less land-grant deducv. United States, 224 U. S. 413, 437, 56 tions, in which event the "lower rate" was L. ed. 820, 829, 32 Sup. Ct. Rep. 424. to govern. See also La Motte v. United States, 254 U. S. 570, ante, 410, 41 Sup. Ct. Rep. 204. "And it is no longer open to question that the United States has capacity to sue for the purpose of setting aside Submitted March 22, 1921. Decided April conveyances of lands allotted to Indians under its care, where restrictions upon alienation have been transgressed.

authority to enforce restrictions

of this character is the necessary complement of the power to impose them. It necessarily follows that, as a transfer of the allotted lands contrary to the inhibition of Congress would be a violation of the governmental rights of the United States, arising from its obligation to a dependent people, no stipulations, contracts, or judgments rendered in suits to which the government is a stranger can affect its interest." Bowling v. United States, 233 U. S. 528, 534, 535, 58 L. ed. 1080, 1083, 34 Sup. Ct. Rep. 659. As the United States is here suing in its own interest, it is in no wise concluded by any matter, whether of fact or law, that may have been adjudged in the prior suit to which it was not a party.

Decree affirmed.

[205] ATCHISON, TOPEKA, & SANTA FE RAILWAY COMPANY, Appt.,

V.

UNITED STATES.

(See S. C. Reporter's ed. 205-208.)

[For other cases, see Railroads, IV.; Carriers, II. a, 8, in Digest Sup. Ct. 1908.]

[No. 256.]

18, 1921.

APPEAL from the Court of Claims to

the claim of a railroad company for adreview a judgment which disallowed ditional compensation for the transportation of Army officers and enlisted men for the United States. Reversed.

See same case below, 53 Ct. Cl. 628. The facts are stated in the opinion. Messrs. Alexander Britton and Gardiner Lathrop submitted the cause for appellant.

Assistant

Attorney General Davis submitted the cause for appellee.

Mr. Justice Van Devanter delivered

the opinion of the court:

On several occasions in 1914 and 1915

the railway company, at the request of the United States, furnished [206] transportation from one state to another for officers and enlisted men in the United States Army. In each instance a through individual rate from the initial point to the destination was in force, and also individual rates to and from intermediate points. In no instance was there a through party rate; but in all there was a party rate for a part only of the distance. This situation was shown in schedules regularly filed and posted under the Interstate 1. The collectable rate for through Commerce Act. In two instances the railway transportation of Army officers transportation was furnished under a and enlisted men for the United States, contract calling for a special reduced without prior contract or special arrange- rate for the full trip, and in the others ment, should be determined not by com- it was furnished without any prior conbining the party rate, which covered a part only of the distance, and the individ- the transportation-computed in the tract or special arrangement. Bills for ual rate for the remainder, then making any necessary land-grant deductions, but two instances at the contract rate, and by taking the through individual rate, less in the others at the through individual any deductions arising from land grants. rate, with appropriate land-grant de[For other cases, see Railroads, IV.; Carriers, II. a, 8, in Digest Sup. Ct. 1908.]

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2. The through individual rate, not the party rate covering a part only of the distance plus the individual rate for the remainder, is the "regular tariff rate,"

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ductions-were presented to the
counting officers, who allowed a part of
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claims to recover the part disallowed,
and the court, without opinion, sus-

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Great Atlantic & Pacific Tea Co. v. Cream of Wheat Co. 224 Fed. 573.

Mr. Justice McReynolds delivered the opinion of the court:

Alleging the existence of an unlawful contract, combination, or conspiracy between the Packing Company, manufacturers of "Old Dutch Cleanser," and various jobbers for the maintenance of resale prices, and relying upon the Sherman Act (July 2, 1890, chap. 647, 26 Stat. at L. 209, Comp. Stat. § 8820, 9 Fed. Stat. Anno. 2d ed. p. 644), as interpreted in Dr. Miles Medical Co. v. John D. Park & Sons Co. 220 U. S. 373, 55 L. ed. 502, 31 Sup. Ct. Rep. 376, Frey & Son, Inc., instituted this action in the district court of the United States for Maryland to recover threefold damages. Under an elaborate charge the issues were submitted to the jury for determination. Judgment for $2,139, [210] entered (June 22, 1917) upon a verdict for plaintiff, was reversed by the circuit court of appeals July 16, 1919 (171 C. C. A. 661, 261 Fed. 65), after decision of United States v. Colgate & Co. (June 2, 1919) 250 U. S. 300, 63 L. ed. 992, 7 A.L.R. 443, 39 Sup. Ct. Rep. 465, and before United States v. A. Schrader's Son, 252 U. S. 85, 64 L. ed. 471, 40 Sup. Ct. Rep. 251. Plaintiff in error reserved its right of review here, waived a new trial, and consented to entry of final judgment for the Packing Company. Thomsen v. Cayser, 243 U. S. 66, 61 L. ed. 597, 37 Sup. Ct. Rep. 353, Ann. Cas. 1917D, 322.

Bobbs-Merrill Co. v. Stres, 210 U. S. The circuit court of appeals correct339, 351, 52 L. ed. 1086, 1093, 28 Sup. ly held that there was no evidence tendCt. Rep. 722; Dr. Miles Medical Co. v. ing to prove any discrimination in violaJohn D. Park & Sons Co. 220 U. S. 373, tion of the Clayton Act. 55 L. ed. 502, 31 Sup. Ct. Rep. 376; Boston Store v. American Graphophone Co. 246 U. S. 8, 21, 62 L. ed. 551, 557, 38 Sup. Ct. Rep. 357, Ann. Cas. 1918C, 447; Bauer v. O'Donnell, 229 U. S. 1, 11, 57 L. ed. 1041, 1044, 50 L.R.A.(N.S.) 1185, 33 Sup. Ct. Rep. 616, Ann. Cas. 1915A, 150; Straus v. Victor Talking Mach. Co. 243 U. S. 490, 500, 501, 61 L. ed. 866, 870, 871, L.R.A.1917E, 1196, 37 Sup. Ct. Rep. 412, Ann. Cas. 1918A, 955; Motion Picture Patents Co. v. Universal Film Mfg. Co. 243 U. S. 502, 61 L. ed. 871, L.R.A.1917E, 1187, 37 Sup. Ct. Rep. 416, Ann. Cas. 1918A, 959; United States v. Colegate & Co. 250 U. S. 300, 63 L. ed. 992, 7 A.L.R. 443, 39 Sup. Ct. Rep. 465; United States v. A. Schrader's Son, 252 U. S. 85, 99, 64 L. ed. 471, 475, 40 Sup. Ct. Rep. 251; Great Atlantic & Pacific Tea Co. v. Cream of Wheat Co. 224 Fed. 566, affirmed in 141 C. C. A. 594, 227 Fed. 46; United States v. Quaker Oats Co. 232 Fed. 499; Baran v. Goodyear Tire & Rubber Co. 256 Fed. 570; United States v. Trans-Missouri Freight Asso. 166 U. S. 290, 320, 41 L. ed. 1007, 1020, 17 Sup. Ct. Rep. 540; Northern Securities Co. v. United States, 193 U. S. 197, 361, 48 L. ed. 679, 710, 24 Sup. Ct. Rep. 436; Adair v. United States, 208 U. S. 161, 172, 173, 52 L. ed. 436, 441, 442, 28 Sup. Ct. Rep. 277, 13 Ann. Cas. 764; Grenada Lumber Co. v. Mississippi, 217 U. S. 433, 54 L. ed. 826, 30 Sup. Ct. Rep. 535; Standard Oil Co. v. United States, 221 U. S. 1, 56, 55 L. ed. 619, 643, 34 L.R.A. (N.S.) 834, 31 Sup. Ct. Rep. 502, Ann. Cas. 1912D, 734; United States v. American Tobacco Co. 221 U. S. 106, 180, 55 L. ed. 663, 694, 31 Sup. Ct. Rep. 632; Eastern States Retail Lumber Dealer's Asso. v. United States, 234 U. S. 600, 614, 58 L. ed. 1490, 1500, L.R.A.1915A, 788, 34 Sup. Ct. Rep. 951; Dueber Watch-Case Mfg. Co. v. E. Howard Watch & Clock Co. 14 C. C. A. 14, 35 U. S. App. 16, 66 Fed. 645; Re Grice, 79 Fed. 642; Whitwell V. Continental Tobacco Co. 64 L.R.A. 689, 60 C. C. A. 290, 125 Fed. 460; Jayne v. Loder, 7 L.R.A. (N.S.) 984, 78 C. C. A. 653, 149 Fed. 27, 9 Ann. Cas. 294; Union Pacific Coal Co. v. United States, 97 C. C. A. 578, 173 Fed. 739; Greater New York Film Rental Co. v. Biograph Co. 121 C. C. A. 375, 203 Fed. 39; Locker V. American tinetly Tobacco Co. 134 C. C. A. 247, 218 Fed. ment be i

447.

894

The court below concluded: "There was no formal written or oral agreement with jobbers for the maintenance of prices," and that, considering the doctrine approved in United States v. Colgate & Co., the district court should have directed a verdict for the defendant. Other errors by the trial court. were assigned and relied upon. If any of them was well taken we must affirm the final judgment entered after waiver of new trial and upon consent, as above shown.

It is unnecessary to repeat what we said in United States v. Colgate & Co. and United States v. A. Schrader's Son. Apparently the former case was misapprehended. The latter opinion disthat the essential agree", or conspiracy might course of dealing or

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other circumstances. Having regard to, the course of dealing and all the pertinent facts disclosed by the present record, we think whether there existed an unlawful combination or agreement between the manufacturer and jobbers was a question for the jury to decide, and that the circuit court of appeals erred when it held otherwise.

Among other things the trial court charged:

"I can only say to you that if you shall find that the defendant indicated a sales plan to the wholesalers and jobbers, which plan fixed the price below which the wholesalers and jobbers were not to sell to retailers, and you find defendant called this particular feature of this plan [211] to their attention on very many different occasions, and you find the great majority of them not only expressing no dissent from such plan, but actually co-operating in carrying it out by themselves selling at the prices named, you may reasonably find from such fact that there was an agreement or combination forbidden by the Sherman Anti-trust Act."

The recited facts, standing alone (there were other pregnant ones), did not suffice to establish an agreement or combination forbidden by the Sherman Act. This we pointed out in United States v. Colgate & Co. As given, the instruction was erroneous and material. The judgment below must be affirmed.

Mr. Justice Pitney, with whom concurred Mr. Justice Day and Mr. Justice Clarke, dissenting:

favor of plaintiff was reversed by the circuit court of appeals (171 C. C. A. 661, 261 Fed. 65), upon the ground that the acts of defendant and its associates amounted to no more than an announcement in advance that customers were expected [212] to charge prices fixed by defendant upon penalty of refusal to sell to an offending customer, observance of the request by customers generally, and actual enforcement of the penalty by refusing to sell to such customers as failed to maintain the price; and hence that, under the decision of this court in United States v. Colgate & Co. 250 U. S. 300, 63 L. ed. 992, 7 A.L.R. 443, 39 Sup. Ct. Rep. 465, there was no ground of recovery under the Anti-trust Act.

I agree with the court that the circuit court of appeals misapprehended the effect of our decision in the case cited, and that, under rules laid down in Dr. Miles Medical Co. v. John D. Park & Sons Co. 220 U. S. 373, 399, 400, 498, 55 L. ed. 502, 515, 516, 518, 31 Sup. Ct. Rep. 376, and United States v. A. Schrader's Son, 252 U. S. 85, 99, 64 L. ed. 471, 475, 40 Sup. Ct. Rep. 251, the trial judge was right in submitting the case to the jury.

Notwithstanding its conclusion that the court of appeals erred in holding that a verdict ought to have been directed in favor of defendant, the majority holds that the judgment under review here ought to be affirmed, because of supposed error in an instruction given to the jury (a new trial having been waived by plaintiff on consenting to entry of final judgment for the Packing Company by the circuit court of appeals under the practice followed in Thomsen v. Cayser, 243 U. S. 66, 83, 61 L. ed. 597, 605, 37 Sup. Ct. Rep. 353, Ann. Cas. 1917D, 322).

I am constrained to dissent from the opinion and judgment of the court. The action was brought by plaintiff in error, in part to recover threefold damages under § 7 of the Sherman Anti-trust Act of July 2, 1890 (chap. 647, 26 Stat. The instruction to which error is atat L. 209, 210, Comp. Stat. §§ 8820, 8829, tributed related to the question whether 9 Fed. Stat. Anno. 2d ed. pp. 644, 713), a combination between defendant and because of injuries sustained in its busi- the wholesalers and jobbers for the purness by reason of an alleged combina- pose of maintaining resale prices had in tion or agreement for the maintenance fact been shown. After referring to of prices made between the Packing the method pursued by defendant in Company and various wholesalers and marketing "Old Dutch Cleanser," and jobbers in its product known as "Old stating that, under the law, defendant Dutch Cleanser." The declaration con- could not be held liable under the first tained a second count, based upon al- count unless it was a party to a conleged discrimination in violation of the tract or combination or conspiracy to Clayton Act of October 15, 1914 (chap. fix and maintain prices; that defendant 323, §§ 2, 4, 38 Stat. at L. 730, 731, denied it was a party to any such comComp. Stat. §§ 8835b, 8835d, 9 Fed. Stat. bination, contract, or conspiracy, and Anno. 2d ed. pp. 731, 736); but this calls insisted it had merely notified the jobfor no special notice. A judgment ren-bing trade what prices it thought were dered by the United States district the lowest at which jobbers would resell court upon the verdict of a jury in its product at sufficient return [213] **

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