since the creating of the joint estates in | SLOAN SHIPYARDS CORPORATION et July and August of 1912.

al., Appts.,

V.

UNITED STATES SHIPPING

BOARD

EMERGENCY FLEET CORPORATION and the United States of America. (No. 308.)

A tax of $5,354.14, based upon the return, was paid by the plaintiffs in error. On May 9, 1919, the Commissioner of Internal Revenue added to the estate the one half interest of the value of the estate, and assessed as a tax, in addition to that which was paid, the sum of $13,- ASTORIA MARINE IRON WORKS, Plff. 668.60. The additional tax was paid under protest, and to recover it is the purpose of the action.

in Err.,

V.

UNITED STATES SHIPPING BOARD

EMERGENCY FLEET CORPORATION. (No. 376.)

The circuit court of appeals, stating the contention of the executors, said, that "they claimed that the assessment was void as to the half of the joint property which vested in Cornelia [Mrs. Kissam] IN THE MATTER OF THE EASTERN before the passage of the Act of September 8, 1916, as amended, and also that the act itself was unconstitutional as a direct tax upon property without apportionment among the several states, as required by article 1, § 9, subd. 4, of the Constitution."

But this contention was the alternative of the contention which plaintiffs in error

SHORE SHIPBUILDING CORPORA-
TION, Bankrupt.

UNITED

STATES SHIPPING BOARD

EMERGENCY FLEET CORPORATION, Representing the United States of America, Petitioner,

V.

(No. 526.)

(See S. C. Reporter's ed. 549–574.)

United States immunity from suit against representative Emergency Fleet Corporation.

1. The United States Shipping Board Emergency Fleet Corporation, incorporated pursuant to congressional legislation under the general laws of the District of Columbia, was not so far put in place of the United States (which owned all the capital stock) as to share the immunity of the United States from suit otherwise than as the sovereign allows.

also made, that the Act of September 8, ROGER B. WOOD, Trustee in Bankruptcy. 1916, as amended, was not intended to have retrospective operation. And this was the decision of the district court, the court saying: "It is true § 201 provides that the tax is imposed upon the transfer of the net estate of 'every decedent dying after the passage of this act;' but the assumption must be that this relates to estates thereafter created, and not to then-existing property." And the court added: "At the time the statute was passed, Cornelia Kissam's interest belonged to her." The court further observed: "From the structure of the act, to say that the measure of the tax is the extent of the interest of both joint tenants is, in effect, to say that a tax will be laid on the interest of Cornelia in respect of which Jonas had, in his lifetime, no longer either title or [549] control." The court rejected that conclusion and denied to the acts of Congress retroactive operation. To this the circuit court of appeals was opposed, and reversed the judgment based upon it.

It will be observed, therefore, that this case involves the same question as that decided in Shwab v. Doyle [258 U. S. 529, ante, 747, A.L.R., 42 Sup. Ct. Rep. 391], and on the authority of that case the judgment of the Circuit Court of Appeals is reversed, and the cause remanded for further proceedings in accordance with this opinion.

So ordered.

[For other cases, see United States, IV. b, in

Digest Sup. Ct. 1908.]

Note.-On immunity of United States from suit-see note to Beers v. Arkansas, 15 L. ed. U. S. 991.

On suit against Federal officers or agents as suit against the United States -see notes to Louisiana v. Garfield, 53 L. ed. U. S. 92, and Wells v. Roper, 62 L. ed. U. S. 756.

On priority of United States in cases of insolvency-see notes to Prince v. Bartlett, 3 L. ed. U. S. 614, and Field v. United States, 9 L. ed. U. S. 94.

On common-law priority of state or United States in payment from assets of debtor-see notes to State v. Foster, 29 L.R.A. 926; Re Carnegie Trust Co. 46 L.R.A. (N.S.) 260; and State v. First State Bank, L.R.A.1918A, 398.

N ERROR to the District Court of the United States for the District of Oregon, to review a judgment which sus1 Mandates stayed and leave granted June tained a demurrer to the complaint in a 5. 1922, to present petition for rehearing suit against the United States Shipping within sixty days, on motion of Assistant Board Emergency Fleet Corporation. to the Attorney General Goff in that be

Fed. 842, which is cited by this court in the Strang Case (254 U. S. 491, 65 L. ed. 368, 41 Sup. Ct. Rep. 165), as stating the better rule.

The Fleet Corporation was formed under subchapter 4, of § 670, of the Code of the District of Columbia, which creates it a body politic and corporate, with power to sue and be sued in any court of law or equity in the District. This is a statement of a power which is incidental to every corporation.

4 Fletcher, Cyc. Corp. §§ 2925, 2926; 3 Thomp. Corp. 2d ed. §§ 2104, 3145; 14 C. J. 785; 7 R. C. L. p. 689, § 690.

The instrument in this case is under seal, and no evidence can be received outside of the instrument to show who is bound. The instrument, on its face, shows that the Fleet Corporation is contracting, and it alone is bound. The contract does not create an agency on its part for the United States, or as the delegate of the President, and if the United States is interested, it is not the kind of an interest which prevents the maintenance of an action against the Fleet Corporation. 2 C. J. p. 676, § 330; 4 Elliott, Contr. § 2847; 1 Williston, Contr. § 296; Whitney v. Wyman, 101 U. S. 392, 25 L. ed. 1050; Sun Printing & Pub. Asso. v. Moore, 183 U. S. 642, 647, 46 L. ed. 366, 371, 22 Sup. Ct. Rep. 240; Gibson v. Victor Talking Mach. Co. 232 Fed. 228; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 380, 12 L. ed. 465, 481; Story, Agency, § 160.

Assistant to the Attorney General Goff and Mr. William Marshall Bullitt argued the cause, and, with Solicitor General Beck, and Messrs. Elmer Schlesinger and Henry M. Ward, filed a brief for the United States Shipping Board Emergency Fleet Corporation:

The Fleet Corporation is a valid incorporated instrumentality and agent of the United States Government; and all of its contracts and acts here involved were, respectively, made and performed, not in its own corporate interest, but exelusively for the United States, in the execution of the war powers of Congress.

M'Culloch v. Maryland, 4 Wheat. 316, 407, 4 L. ed. 579, 601; Osborn v. Bank of United States, 9 Wheat. 738, 860, 863, 6 L. ed. 204, 233, 234; Luxton v. North River Bridge Co. 153 U. S. 525, 529, 530, 38 L. ed. 808, 810, 14 Sup. Ct. Rep. 891; California v. Central P. R. Co. 127 U. S. 1, 39, 32 L. ed. 150, 157, 2 Inters. Com. Rep. 153, 8 Sup. Ct. Rep. 1073; First Nat. Bank v. Union Trust Co. 244 U. S. 416, 425, 61 L. ed. 1233, 1239, L.R.A.

1918C, 283, 37 Sup. Ct. Rep. 734, Ann.
Cas. 1918D, 1169; Smith v. Kansas City
Title & T. Co. 255 U. S. 180, 208, 211,
65 L. ed. 577, 588, 590, 41 Sup. Ct. Rep.
243; Farmers' & M. Nat. Bank v. Dear-
ing, 91 U. S. 29, 33, 34, 23 L. ed. 196,
198, 199; Easton v. Iowa, 188 U. S. 220,
230, 237, 47 L. ed. 452, 456, 459, 23 Sup.
Ct. Rep. 288, 12 Am. Crim. Rep. 522;
Farmers' & M. Sav. Bank v. Minnesota,
232 U. S. 516, 524, 525, 58 L. ed. 706,
710, 711, 34 Sup. Ct. Rep. 354; Choctaw,
O. & G. R. Co. v. Harrison, 235 U. S. 292,
298, 59 L. ed. 234, 237, 35 Sup. Ct. Rep.
27; Indian Territory Illuminating Oil Co.
v. Oklahoma, 240 U. S. 522, 530, 60 L.
ed. 779, 783, 36 Sup. Ct. Rep. 453; Bank
of California v. Richardson, 248 U. S.
476, 483, 63 L. ed. 372, 375, 39 Sup. Ct.
Rep. 165; Smith v. Kansas City Title &
T. Co. 255 U. S. 180, 210, 211, 65 L. ed.
577, 589, 590, 41 Sup. Ct. Rep. 243;
Farmers' & M. Nat. Bank v. Dearing, 91
U. S. 29, 23 L. ed. 196; Hodgson v. Dex-
ter, 1 Cranch, 345, 2 L. ed. 130; Sheets
v. Selden, 2 Wall. 177, 187, 17 L. ed. 822,
825; District of Columbia v. Camden Iron
Works, 181 U. S. 453, 460, 45 L. ed. 948,
952, 21 Sup. Ct. Rep. 680; Belknap v.
Schild, 161 U. S. 10, 17, 40 L. ed. 599,
602, 16 Sup. Ct. Rep. 443; Parks v. Ross,
11 How. 362, 374, 13 L. ed. 730, 735;
Jones v. Le Tombe, 3 Dall. 384, 1 L. ed.
647; Garland v. Davis, 4 How. 131, 148,
11 L. ed. 907, 915.

The Fleet Corporation has no personal interest in these controversies; and it is not suable, because the suits are, in effect, suits against the United States, which is the real party in interest; the United States has never consented to be sued; its property rights would be directly affected if the relief sought were granted; and, in the Sloan Shipyards case, it is an indispensable party.

11 Enc. U. S. Sup. Ct. Rep. 796; Louisiana v. McAdoo, 234 U. S. 627-629, 58 L. ed. 1506-1508, 34 Sup. Ct. Rep. 938; Louisiana v. Garfield, 211 U. S. 70, 78, 53 L. ed. 92, 97, 29 Sup. Ct. Rep. 31; Kawananakoa v. Polyblank, 205 U. S. 349, 353, 51 L. ed. 834, 836, 27 Sup. Ct. Rep. 526; United States v. Lee, 106 U. S. 196, 207, 27 L. ed. 171, 177, 1 Sup. Ct. Rep. 240; Porto Rico v. Rosaly y Castillo, 227 U. S. 270, 274, 57 L. ed. 507, 509, 33 Sup. Ct. Rep. 352; Kansas v. United States, 204 U. S. 331, 341, 51 L. ed. 510, 513, 27 Sup. Ct. Rep. 388; Oregon v. Hitchcock, 202 U. S. 60, 68, 50 L. ed. 935, 938, 26 Sup. Ct. Rep. 568; Minnesota v. Hitchcock, 185 U. S. 373, 384, 386, 46 L. ed. 954, 961, 962, 22 Sup. Ct. Rep. 650; Tindal v. Wesley, 167 U. S. 204, 213, 42 L. ed. 137, 140, 17 Sup.

765

p. 808, and of July 18, 1918, chap. 157, § 13, 40 Stat. at L. 913, 916, Comp. Stat. § 3115j, give compensation for a plant taken by the President under the powers conferred by the Aet of June 15, 1917, chap. 29, 40 Stat. at L. 182, Comp. Stat. § 3115ee, and otherwise, with a resort for claims exceeding $10,000 to the court of claims; in the later act, by a suit against the United States. But the taking possession of the plaintiff's plants, on De

Stat. at L. 845, 888; November 4, 1918, chap. 201, 40 Stat. at L. 1020, 1026. Executive Order of December 3, 1918, delegating all powers as to ship or plant construction and ratifying previous acts. Perhaps it is enough to add a reference to the Act of June 5, 1920, chap. 250, 41 Stat. at L. 988, 993, continuing the existence of the Fleet Corporation and its authority to operate vessels until all vessels are sold as directed by the act, § 11, but transferring the title to the Ship-cember 1, 1917, is alleged to have been ping Board. § 4.

unlawful; and it cannot be assumed at this stage that the act of the Fleet Corporation was in pursuance of any powers then delegated to it, or was within the ratification of December 3, 1918. The plaintiffs are not suing the United States but the Fleet Corporation; and if its act [568] was unlawful, even if they might have sued the United States, they are not cut off from a remedy against the agent that did the wrongful act. In general the United States cannot be sued for a tort, but its immunity does not extend to those that acted in its name. It is not impossible that the Fleet Corporation purported to aet under the contract giving it the right to take possession in certain events, but that the plaintiff's can show that the events had not occurred. The district judge gave weight to the phrase in the general incorporation law of the District that corporations formed under it shall be capable of suing and being sued in any court in the District. D. C. Code, § 607. But we do not read those words as putting District corporations upon a different footing from those formed under the laws of the states.

These provisions sufficiently indicate the enormous powers ultimately given to the Fleet Corporation. They have suggested the argument that it was so far put in place of the sovereign as to share the immunity of the sovereign from suit otherwise than as the sovereign allows. But such a notion is a very dangerous departure from one of the first principles of our system of law. The sovereign, properly so called, is superior to suit for reasons that often have been explained. But the general rule is that any [567] person within the jurisdiction always is amenable to the law. If he is sued for conduct harmful to the plaintiff his only shield is a constitutional rule of law that exonerates him. Supposing the powers of the Fleet Corporation to have been given to a single man, we doubt if any one would contend that the acts of Congress and the delegations of authority from the President left him any less liable than other grantees of the power of eminent domain to be called upon to defend himself in court. An instrumentality of government he might be, and for the greatest ends; but the agent, be- We attach no importance to the fact cause he is agent, does not cease to be that the second contract, alleged to have answerable for his acts. Osborn v. been illegally extorted, was made with Bank of United States, 9 Wheat. 738, the Fleet Corporation, "representing the 842, 843, 6 L. ed. 204, 229; United States United States of America." The Fleet v. Lee, 106 U. S. 196, 213, 221, 27 L. ed. Corporation was the contractor, even if 171, 179, 182, 1 Sup. Ct. Rep. 240. The the added words had any secondary efopposite notion left some traces in the fect. But the bill alleges that it was law (1 Rolle, Abr. 95, Action sur Case, brought about by the wrongful act of the T.), but, for the most part, long has dis- Fleet Corporation. The conclusion that appeared. we reach is that the district court erred in dismissing the bill, and we regard it as led up to and almost required by the decisions heretofore reached in The Lake Monroe (Re United States) 250 U. S. 246, 63 L. ed. 962, 39 Sup. Ct. Rep. 460, and United States v. Strang, 254 U. S. 491. 65 L. ed. 368, 41 Sup. Ct. Rep. 165. See further, Dakota Cent. Teleph. Co. v. South Dakota, 250 U. S. 163, 177, 178, 63 L. ed. 910, 4 A.L.R. 1623, P.U.R.1919D, 717, 39 Sup. Ct. Rep. 507; Northern P. R. Co. v. North Dakota, 250 U. S. 135, 152, 63 L. ed. 897, 905, P.U.R.1919D.

If what we have said is correct, it cannot matter that the agent is a corporation rather than a single man. The meaning of incorporation is that you have a person, and as a person one that presumably is subject to the general rules of law. The only serious question is whether special remedies have been provided by statute that displace those that otherwise would be at the plaintiff's command. The Acts of April 22, 1918, chap. 62, § 3, 40 Stat. at L. 535, Comp. Stat. § 3115dd, Fed. Stat. Anno. Supp. 1918,