by it, the Navy Department offered the law's remedial consideration furnishes for yacht Wadena for sale. It was the duty the redress of [204] injustice. And of the Department to the government of that a mistake was made cannot be which it was an instrument to accept the denied, and to which no act or neglihighest bid, and it owed a duty as well to gence of Johnson was accessory. He him who should be the highest bidder. responded to the solicitation of the Johnson responded to the offer of sale Navy Department, executing the law, and his bid was the highest. By mistake, and he was entitled to the preference however, the bid was assigned to a boat of that the law commanded. It was given similar name. In consequence of the to another by mistake. The law will mistake, Levinson was considered the not permit him to retain it, and this highest bidder, and a bill of sale was is- is a necessary deduction, I confidently besued to him. Before the delivery of the lieve, and therefore confidently express, yacht, however, [203] the mistake was though it is opposed by the judgment of discovered, and the yacht was retained my brethren. I repeat: that there was a by the Department. This being the mistake cannot be disputed, and I cannot situation, the Department, not in its think that its consummation protects it own interest, not in partiality to either from correction, and that a remedy should claimant, caused this suit to be brought be denied, because it is needed, all of its that the rights of the claimants could conditions existing. be adjudicated. The suit is a disclaimer of interest or favor; it is in the nature of a bill of interpleader, and the contest is remitted to the interpleaded, Levinson and Johnson, and the law of their rights. And that law is dependent upon what they did, not upon what the Navy Department did,-by the priorities between them, not by a chance advantage. These are the elements that should determine judgment, whether we assign to accident or mistake the action of the Department in declaring Levinson to be the purchaser of the yacht. I need not dwell upon the sufficiency of either as a ground of relief.

Accident is said to be one of the oldest heads of equity jurisdiction, and a learned authority says its first and principal requisite is, that, by an event not expected nor foreseen, one party has, without fault and undesignedly, undergone some legal loss, while another party has acquired a legal right, which it is contrary to good conscience for him to retain and enforce. 2 Pomeroy, Eq. Jur. § 824.

It was the view of the circuit court of appeals in a well-reasoned opinion that the Secretary of the Navy had "no authority to deliver the bill of sale to Levinson," but was "bound to deliver it to Johnson." There is much to sustain the decision; I, however, base my dissent upon the views that I have expressed, and think that the judgment of the circuit court of appeals should be affirmed.

STATE OF TEXAS, Appt.,

V.

EASTERN TEXAS RAILROAD COMPANY et al. (No. 298.)

constitutionality.

favoring

The requisites and consequences are in constructions, by one of which grave and 1. Where a statute is susceptible of two this case, and exhibit the relative situa- doubtful questions arise, and by the other tions and rights of Levinson and Johnson. Levinson has acquired a right to Note.-On construction of statutes, which Johnson was entitled, and which generally-see notes to Riggs v. Palmer, Johnson lost by an accident to which he 5 L.R.A. 340; Maillard v. Lawrence, 14 was not a contributor. The law, in its L. ed. U. S. 925; United States v. sufficiency and prudence, meets such con- Saunders, 22 L. ed. U. S. 736; and Blake tingent happening, and gives a remedy to v. National City Bank, 23 L. ed. U. S. prevent or redress its injury. That Lev-119.

inson was given a bill of sale is not a On jurisdiction and powers of the serious deterrent. As the bill of sale Interstate Commerce Commission-see could have been refused, it can be disre- note to United States v. Tozer, 2 L.R.A. garded as an element of decision. 446.

Mistake as well as accident (mistake On right of carrier to discontinue its may be considered a corollary of acci- entire service-see note to Lyon & Hoag dent) is a ground of relief which the v. Railroad Commission, 11 A.L.R. 252.

3. The authority of the Interstate Commerce Commission, under the Transportation Act of February 28, 1920, § 402, amending § 1 of the Interstate Commerce Act, to deal with the abandonment of railway lines, does not include the power to sanction the discontinuance of the purely intrastate business of a railroad, which lies entirely within a single state, is used and operated by a corporation in that state, and is not part of any other line.

[For other cases, see Interstate Commerce Commisson, I. in Digest Sup. Ct. 1918 Supp.]

[Nos. 298 and 563.]

Argued November 15 and 16, 1921. Decided
March 13, 1922.

APPEAL from the District Court of

San Antonio Traction Co. v. Altgelt, 200 U. S. 304, 50 L. ed. 492, 26 Sup. Ct. Public Service Commission, 255 U. S. Rep. 261; San Antonio v. San Antonio 547, 65 L. ed. 777, 41 Sup. Ct. Rep. 428. The state can control physical properties of its corporations.

Baltimore & O. R. Co. v. Maryland, 21 Wall. 456, 473, 22 L. ed. 678, 684; Northern Securities Co. v. United States, 193 U. S. 347, 48 L. ed. 704, 24 Sup. Ct. Rep. 436; Louisville & N. R. Co. v. Kentucky, 161 U. S. 677, 702, 40 L. ed. 849, 859, 16 Sup. Ct. Rep. 714; Missouri P. R. Co. v. Kansas, 216 U. S. 262, 54 L. ed. 472, 30 Sup. Ct. Rep. 330; Atlantic Coast Line Co. v. North Carolina Corp. Commission, 206 U. S. 1, 51 L. ed. 933, 27 Sup. Ct. Rep. 585, 11 Ann. Cas. 398.

Though the Eastern Texas retains its corporate name, it has lost its corporate identity; though its obligations to the state of Texas have not been fulfilled, it has nevertheless become a part of the system of the St. Louis Southwestern Railway Company, and is subject to all of the laws of the state and of the United States governing it as a part of the system of the St. Louis Southwestern Railway Company.

Chicago, M. & St. P. R. Co. v. Minne

apolis Civic & Commerce Asso. 247 U. S.

The Interstate Commerce Commission

the United States for the Western | 490, 62 L. ed. 1229, 38 Sup. Ct. Rep. 553. District of Texas to review a decree which dismissed the bill in a suit by the state of Texas to enjoin a railway company from ceasing to operate the railway in intrastate commerce. Reversed.

Also an

has no authority under the statute to grant to a railroad company a certificate of public convenience and necessity, authorizing it to abandon a part of its main-line track, in the absence of a showing that the entire system was

APPEAL from the District Court of losing money.

United States for the Eastern District of Texas to review a decree which dismissed the bill in a suit to set aside an order of the Interstate Commerce Commission, sanctioning the discontinuance of the intrastate operation of the railway. Reversed.

Puget Sound Traction Light & P. Co. V. Reynolds, 244 U. S. 574, 61 L. ed. 1325, 5 A.L.R. 1, P.U.R.1917F, 57, 37 Sup. Ct. Rep. 705.

Mr. Tom L. Beauchamp argued the cause, and, with Mr. C. M. Cureton, Attorney General of Texas, and Mr. Walace Hawkins, filed a brief for appellants in No. 563.

Mr. E. B. Perkins argued the cause, and, with Messrs. Daniel Upthegrove and E. J. Mantooth, filed a brief for the Railroad Companies:

The facts are stated in the opinion. Mr. Tom L. Beauchamp argued the cause, and, with Mr. C. M. Cureton, Attorney General of Texas, and Messrs. Bruce W. Bryant and Walace Hawkins, filed a brief for appellant in No. 298: The Transportation Act, as inter- The power conferred upon Congress preted, confers judicial authority upon the Interstate Commerce Commission.

Prentis v. Atlantic Coast Line Co. 211 U. S. 210, 53 L. ed. 150, 29 Sup. Ct. Rep. 67.

A charter contract, or franchise, is a binding obligation upon the carrier, unless for reason found defective.

by the Constitution over commerce. among the states and with foreign nations is complete in itself, extends incidentally to every instrument and agent by which such commerce is carried on, may be exerted to its utmost extent over every part of such commerce, and is subject to no limitations save such as

Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 46, 56 L. ed. 327, 344, 38 L.R.A. (N.S.) 44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875; M'Culloch v. Mary-venience and necessity permitted the land, 4 Wheat. 316, 4 L. ed. 579; Houston, E. & W. T. R. Co. v. United States, 234 U. S. 342, 58 L. ed. 1341, 34 Sup. Ct. Rep. 833.

Intermountain Rate Cases (United States v. Atchison, T. & S. F. R. Co.) When Congress, in the exercise of the 234 U. S. 476, 58 L. ed. 1408, 34 Sup. Ct. power conferred upon it, proceeded to Rep. 986; Tap Line Cases (United States legislate upon the subject of the aban-. Louisiana & P. R. Co.) 234 U. S. 1, donment of railroads, and enacted the paragraphs referred to in the Transportation Act, then such paragraphs superseded the provisions of the Constitution and laws of the state.

The state of Texas may not seriously L. ed. 226, 33 Sup. Ct. Rep. 83; Interclaim that the Eastern Texas Railroad state Commerce Commission v. Goodrich should continue operations at a loss.

Bullock v. Florida, 254 U. S. 513, 520, 521, 65 L. ed. 380, 382, 383, P.U.R.1921B, 507, 41 Sup. Ct. Rep. 193; Brooks-Scanlon Co. v. Railroad Commission, 251 U. S. 396, 399, 64 L. ed. 323, 326, P.U.R. 1920C, 579, 40 Sup. Ct. Rep. 183; Northern P. R. Co. v. North Dakota, 236 U. S. 585, 595, 599, 600, 604, 59 L. ed. 735, 741, 743, 745, L.R.A.1917F, 1148, P.U.R.1915C, 277, 35 Sup. Ct. Rep. 429, Ann. Cas. 1916A, 1; Norfolk & W. R. Co. v. Conley, 236 U. S. 605, 609, 614, 59 L. ed. 745, 747, 749, P.U.R.1915C, 293, 35 Sup. Ct. Rep. 437.

If Congress may directly, or through appropriate agencies, condemn defective or inadequate equipment and facilities of interstate carriers, irrespective of the nature of the traffic, whether interstate or intrastate, a fortiori it may authorize a railroad engaged in interstate transportation to cease operations.

Cooley v. Port Wardens, 12 How, 299, 13 L. ed. 996; Ex parte McNiel, 13 Wall. 236, 20 L. ed. 624; Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96, 32 L. ed. 352, 2 Inters. Com. Rep. 238, 9 Sup. Ct. Rep. 28; Baltimore & O. R. Co. v. Interstate Commerce Commission, 221 | U. S. 612, 55 L. ed. 878, 31 Sup. Ct. Rep. | 621; Johnson v. Southern P. Co. 196 U. S. 1, 49 L. ed. 363, 25 Sup. Ct. Rep. 158, 17 Am. Neg. Rep. 412; Patterson v. The Eudora, 190 U. S. 169, 47 L. ed. 1002, 23 Sup. Ct. Rep. 821; Northern Securities Co. v. United States, 193 U. S. 197, 48 L. ed. 679, 24 Sup. Ct. Rep. 436; Loewe v. Lawler, 208 U. S. 274, 52 L. ed. 488, 28 Sup. Ct. Rep. 301, 13 Ann. Cas. 815; Chicago, R. I. & P. R. Co. v. Arkansas, 219 U. S. 453, 55 L. ed. 290, 31 Sup. Ct. Rep. 275; St. Louis, I. M. & S. R. Co. v. Arkansas, 240 U. S. 518, 60 L. ed. 776, 36 Sup. Ct. Rep. 443; Interstate Commerce Commission v. Illinois C. R. Co. 215 U. S. 452, 54 L. ed. 280, 30 Sup. Ct. Rep. 155; Interstate Commerce Commission v. Chicago & A. R. Co. 215 U. S. 479, 54 L. ed. 291, 30 Sup. Ct. Rep. 163; Atchison, T. & S. F. R. Co. v. United States, 232 U. S. 199, 221, 58 L. ed. 568, 577, 34 Sup. Ct. Rep. 291; Pennsylvania Co. v. United States, 236 U. S. 351, 373, 59 L. ed. 616, 627, P.U.R.1915B, 261, 35 Sup. Ct. Rep. 370; Louisville & N. R. Co. v. United States, 238 U. S. 1, 59 L. ed. 1177, 35 Sup. St. Rep. 696; Pipe Line Cases (United States v. Ohio Oil Co.) 234 U. S. 548, 58 L. ed. 1459, 34 Sup. Ct. Rep. 956; United States v. Union Stock Yard & Transit Co. 226 U. S. 286, 57

Transit Co. 234 U. S. 194, 56 L. ed. 729, 32 Sup. Ct. Rep. 436; United States v. Alaska S. S. Co. 253 Ú. S. 113, 64 L. ed. 808, 40 Sup. Ct. Rep. 448; Atlantic Coast Line R. Co. v. Georgia, 234 U. S. 280, 58 L. ed. 1312, 34 Sup. Ct. Rep. 829; Missouri P. R. Co. v. Kansas, 216 U. S. 262, 269, 54 L. ed. 472, 475, 30 Sup. Ct. Rep. 330; Loomis v. Lehigh Valley R. Co. 240 U. S. 43, 60 L. ed. 517, 36 Sup. Ct. Rep. 228; Robertson v. Baldwin, 165 U. S. 275, 41 L. ed. 715, 17 Sup. Ct. Rep. 326; McLean v. Arkansas, 211 U. S. 539, 53 L. ed. 315, 29 Sup. Ct. Rep. 206; Erie R. Co. v. Williams, 233 U. S. 685, 58 L. ed. 1155, 51 L.R.A. (N.S.) 1097, 34 Sup. Ct. Rep. 761; United States v. Baltimore & O. S. W. R. Co. 222 U. S. 8, 56 L. ed. 68, 32 Sup. Ct. Rep. 6; Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 56 L. ed. 327, 38 L.R.A. (N.S.) 44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875; Commutation Rate Case, 27 Inters. Com. Rep. 549.

commerce

Interstate and intrastate are, for many purposes, so interwoven that their division is impracticable.

Baltimore & O. R. Co. v. Interstate Commerce Commission, 221 U. S. 612, 618, 55 L. ed. 878, 882, 31 Sup. Ct. Rep. 621; Minnesota Rate Cases (Simpson v. Shepard) 230 U. S. 352, 432, 433, 57 L. ed. 1511, 1555, 48 L.R.A(N.S.) 1151, 33 Sup. Ct. Rep. 729, Ann. Cas. 1916A, 18.

If, during the period of rehabilitation, the Congress provides that a railroad should not increase its obligations by extending its lines, or, on the other hand, should not lessen the value of the security by abandoning its road, or should not increase the guaranty of the government by running the road at a loss, why is not such an exercise of power the exercise of the war power, and, as such, an appropriate means to discharge the important duty of rehabilitating the railroads, which suffered such grievous injury during the period of governmental control? Conceding the power, the means of its execution are in the exclusive discretion of Congress.

M'Culloch v. Maryland, 4 Wheat. 316, 420, 4 L. ed. 579, 605.

Alleged contract rights, whether charter obligations or otherwise, are of no avail.

Legal Tender Cases, 12 Wall. 457, 550, 551, 20 L. ed. 287, 311, 312; Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549, 567, 55 L. ed. 328, 338, 31 Sup. Ct. Rep. 259; Baltimore & O. R. Co. v.

Interstate Commerce Commission, 221 | 420, 4 L. ed. 579, 605; Southern R. Co. U. S. 612, 619, 55 L. ed. 878, 883, v. United States, 222 U. S. 20, 56 L. ed. 31 Sup. Ct. Rep. 621; Louisville & 72, 32 Sup. Ct. Rep. 2, 3 N. C. C. A. N. R. Co. v. Mottley, 219 U. S. 467, 822; Northern P. R. Co. v. Washington, 482, 55 L. ed. 297, 303, 34 L.R.A. 222 U. S. 370, 56 L. ed. 237, 32 Sup. Ct. (N.S.) 671, 31 Sup. Ct. Rep. 265; Armour Rep. 160; Southern R. Co. v. Reid, 222 Packing Co. v. United States, 209 U. S. U. S. 444, 56 L. ed. 263, 32 Sup. Ct. Rep. 56, 52 L. ed. 681, 28 Sup. Ct. Rep. 428; 145; Atlantic Coast Line R. Co. v. Second Employers' Liability Cases Georgia, 234 U. S. 280, 292, 58 L. ed. (Mondou v. New York, N. H. & H. R. 1312, 1318, 34 Sup. Ct. Rep. 829; HousCo.) 223 U. S. 1, 52, 56 L. ed. 327, 347, ton, E. & W. T. R. Co. v. United States, 38 L.R.A.(N.S.) 44, 32 Sup. Ct. Rep. 234 U. S. 342, 350, 58 L. ed. 1341, 1347, 169, 1 N. C. C. A. 875; Northern Securi- 34 Sup. Ct. Rep. 833; Louisville & N. R. ties Co. v. United States, 193 U. S. 197, Co. v. Mottley, 219 U. S. 467, 482, 55 350, 48 L. ed. 679, 705, 24 Sup. Ct. Rep. L. ed. 297, 303, 34 L.R.A.(N.S.) 671, 31 436; Atlantic Coast Line R. Co. v. River- Sup. Ct. Rep. 265; Wilson v. New, 243 U. side Mills, 219 U. S. 186, 202, 55 L. ed. S. 332, 349, 61 L. ed. 755, 774, L.R.A. 167, 180, 31 L.R.A. (N.S.) 7, 31 Sup. Ct. 1917E, 938, 37 Sup. Ct. Rep. 298, Ann. Rep. 164. Cas. 1918A, 1024; Gibbons v. Ogden, 9 Wheat. 1, 188, 6 L. ed. 23, 68.

Mr. Walter McFarland argued the cause, and, with Mr. P. J. Farrell, filed a brief for the Interstate Commerce

Commission:

The certificate of convenience and necessity, made by the Commission on December 2, 1920, is not an order within the meaning of the statutes conferring upon the district courts jurisdiction of cases brought to enjoin, set aside, annul, or suspend, in whole or in part, any order of the Interstate Commerce Commission.

Procter & G. Co. v. United States, 225 U. S. 282, 56 L. ed. 1091, 32 Sup. Ct. Rep. 761; Lehigh Valley R. Co. v. United States, 243 U. S. 412, 61 L. ed. 819, 37 Sup. Ct. Rep. 434; United States v. Illinois C. R. Co. 244 U. S. 82, 61 L. ed. 1007, 37 Sup. Ct. Rep. 584.

The Commission acted in conformity with the authority conferred upon it by the statute under which it operated.

Mr. Justice Van Devanter delivered

the opinion of the court:

By § 402 of the Transportation Act of February 28, 1920, chap. 91, 41 Stat. at L. added to § 1 of the Act to Regulate Com456, 477, several new paragraphs were merce, as theretofore amended. Paragraphs 18, 19, and 20 are copied in the undertaken to regulate the construcmargin. By [213] them Congress has

1"(18) After ninety days after this paragraph takes effect no carrier by railroad subject to this act shall undertake the extension of its line of railroad, or the construction of a new line of railroad, or shall acquire or operate any line of railroad, or extension thereof, or shall engage in transportation under this act over or by means of such additional or extended line of railroad, unless and until there shall first have been obtained from the Commis sion a certificate that the present or future Procter & G. Co. v. United States, 225 public convenience and necessity require or U. S. 282, 297, 56 L. ed. 1091, 1096, 32 will require the construction, or operation, or construction and operation, of such addiSup. Ct. Rep. 761; Interstate Commerce tional or extended line of railroad, and no Commission v. Illinois C. R. Co. 215 U. carrier by railroad subject to this act shall S. 452, 470, 478, 54 L. ed. 280, 287, 291, abandon all or any portion of a line of 30 Sup. Ct. Rep. 155; Spiller v. Atchi- railroad, or the operation thereof, unless son, T. & S. F. R. Co. 253 U. S. 117, and until there shall first have been ob125, 64 L. ed. 810, 817, 40 Sup. Ct. Rep. tained from the Commission a certificate 466; O'Keefe v. United States, 240 U. S. that the present or future public conven294, 302, 60 L. ed. 651, 657, 36 Sup. Ct.ience and necessity permit of such abanRep. 313; Louisville & N. R. Co. v. United States, 245 U. S. 463, 466, 62 L. ed. 400, 405, 38 Sup. Ct. Rep. 141; Re Increased Rates, 58 Inters. Com. Rep. 220; Brooks-Scanlon Co. v. Railroad Commission, 251 U. S. 396, 64 L. ed. 323, P.U.R.1920C, 579, 40 Sup. Ct. Rep. 183.

Congress had the power to enact (18) to (22), inclusive, of § 1 of the Interstate Commerce Act.

M'Culloch v. Maryland, 4 Wheat. 316,

donment.

"(19) The application for and issuance of any such certificate shall be under such rules and regulations as to hearings and other matters as the Commission may from time to time prescribe, and the provisions of this act shall apply to all such proceedings. Upon receipt of any application for

such certificate the Commission shall cause notice thereof to be given to and a copy filed with the governor of each state in which such additional or extended line of railroad is proposed to be constructed or