scope, not less than that granted by the Cov- | after this grant to individuals, but never one ington charter, declared: "Under the general power of a municipal government to control and regulate the use of the streets of a city, it cannot grant to any person or corporation the right to lay down a railway in a street. * The right of the general council to contract with a railway company grows out of the special acts of the Legislature heretofore quoted." Whether this statement was necessary to the decision of the case then under consideration or not, in the following year it was paraphrased and adopted in a Covington Street Ry. Co. Case, 9 Bush (Ky.) 127, and, almost twenty years after that it was again approved in a Covington Case, 90 Ky. 390, 14 S. W. 361. Thus, during the entire period covered by the grants here involved, it was the law of the state, as its highest court understood and announced it, that the city of Covington did not have, under its charter, power to make a street railway grant, "without special authority so to do from the Legislature." That this was also the opinion of the Legislature of the state and of that part of the bar of the state concerned with the grants here involved is conclusively shown by the fact that in the charter of every one of the three street railway companies concerned herein there is a special grant of power to the city of Covington to make the contemplated contract for the use of its streets for street railway purposes. This obscurely worded grant, thus made to Abbott without special legislative authority, is not helped out by subsequent recognition by the city, for we find the parties, almost from the beginning of its term, dealing with each other constantly at arm's length, the city claiming that the grant was, at most, limited to twenty-five years, and the railway company claiming it to be perpetual. For instance, as early as 1887, when the right to use electric power was granted, a typical provision was inserted in the ordinance, accepted in writing by the company: "That nothing in this ordinance shall be construed to nor shall it give to said railway any further or longer time than it now has to operate its lines." Again, in 1892, for a reduction of fare and other considerations the city agrees "for the period of twenty years after the acceptance of this ordinance" not to offer for sale any of the rights or franchises of the defendant in error in the said streets; and it was not until after the expiration of this period that the proposition to grant a new franchise was made, which the decision of the court permanently enjoins. This is sufficient of detail to indicate why I am of opinion that the meager and equivocal grant of 1869 should not be regarded as helped out by the subsequent dealings of the assignees of it with the city. Under the circumstances thus presented, with limited franchises granted before and unlimited in terms with the city contending always that this franchise was for twentyfive years only, and with the courts, Legislature, and bar of the state united in thinking that there was no power in the municipality to make even a limited street railroad grant without special legislative warrant, I cannot bring myself to consent to construe, as the court does, an obscurely worded clause of a single sentence, found in a grant to individuals, of the right to construct an insignificant horse railroad, which the son of the grantee in an affidavit alleges required an expenditure of only $48,000, so as to impose upon the municipality "the unspeakable burden" of a perpetual franchise to operate street railroads in its streets. Fully realizing the futility, for the present, of dissenting from what seems to me to be an unfortunate extension of the doctrine of the Owensboro Case, 230 U. S. 58, 33 Sup. Ct. 988, 57 L. Ed. 1389, I deem it my duty to record my dissent, with the hope for a return to the sound, but now seemingly neglected, doctrine of Blair v. Chicago, 201 U. S. 400, 463, 26 Sup. Ct. 427, 50 L. Ed. 801, declaring that a corporation which would successfully assert a private right in a public street must come prepared to show that it has been conferred "in plain terms," "in express terms," and that any ambiguity in the terms of the grant must be resolved in favor of the public and against the corporation "which can claim nothing which is not clearly given." The reason given by the court for this rule is that "grants of this character are usually prepared by those interested in them," and that "it serves to defeat any purpose, concealed by the skillful use of terms, to accomplish something not apparent on the face of the act." This is declared to be "sound doctrine which should be vigilantly observed and enforced." Believing that the application of this wise rule to the decree before us must result in its reversal, I dissent from the opinion of the court. Mr. Justice BRANDEIS concurs in this dissent. (246 U. S. 525) LOUISVILLE & N. R. CO. v. HOLLOWAY. Decided April 15, (Submitted March 15. 1918. 1918.) No. 209. In an action under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1916, §§ 8657-8665]), an instruction that plaintiff's measure of recovery was such an amount in damages as would fairly compensate the widow of the deceased employé for the loss of pecuniary benefits she might reasonably have received if deceased had not been killed, while general, was correct, and was not objectionable as implying that the verdict should be for the aggregate of the several benefits payable at different times, without making any al For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes lowance for the fact that the whole amount of was affirmed with ten per cent. damage by the verdict would be presently paid. the Court of Appeals (168 Ky. 262, 181 S. W. 2. TRIAL 256(13)-INSTRUCTIONS-GENER- 1126. The case comes here under section. AL INSTRUCTIONS. In an action for death, where the court gave a correct general instruction as to the measure of recovery, defendant was entitled to have instruction supplemented by other more particular VIEW OF LOCAL PRACTICE. Where an action under the federal Employers' Liability Act is tried in a state court, questions purely of local practice are not reviewable by the Supreme Court of the United States on writ of error to the highest state court. 5. COURTS 394(24)-SUPREME COURT-EXCESSIVE DAMAGES-REVIEW OF VERDICT. The errors assigned in this court and now insisted upon are these: 237 of the Judicial Code. The first assignment: That the Court of Appeals erred in approving the giving of an instruction and the refusal of another by which the trial judge had denied to the company the benefit of the rule declared in Chesapeake & Ohio Ry. v. Kelly, 241 U. S. 485, 491, 36 Sup. Ct. 630, 60 L. Ed. 1117, L. R. A. 1917F, 367, that in computing damages re coverable for the deprivation of future financial benefits, the verdict should be based on their present value. The third assignment: That the Court of Appeals erred in refusing to reverse the judgment of the trial court on the ground that the damages were excessive, and in holding as part of the loss of benefits the widow might In an action under the federal Employers' have received and which the jury was entitled Liability Act, tried in the state court where a to consider "not only her support and maintejudgment for plaintiff was affirmed by the high-nance of $50.00 a month, but in addition thereest state tribunal, the question of the excessive- to, one-half of the savings, which decedent ness of damages cannot be reviewed in the federal Supreme Court on writ of error. 6. DEATH 104(4)-DAMAGES. might have accumulated if he had lived out his allotted span" of life. [1-4] First. The instruction given, though general, was correct. It declared that the plaintiff was entitled to recover "such an amount in damages as will fairly and reasonably compensate" the widow "for the loss of pecuniary benefits she might reasonably have received" but for her husband's death. This ruling did not imply that the verdict should be for the aggregate of the several benefits payable at different times, without making. any allowance for the fact that the whole amount of the verdict would be presently paid at one time. The instruction bore rather an implication to the contrary; for the sum was expressly stated to be that which would "compensate." The language used was simi 1 The instruction given was: "The measure of recovery if you find for the plaintiff, being such an Mr. B. D. Warfield, of Louisville, Ky., for amount in damages as will fairly and reasonably plaintiff in error. compensate the widow of the said John G. Holloway, deceased, for the loss of pecuniary benefits Messrs. Clay & Clay, of Henderson, Ky., for she might reasonably have received if the deceased defendant in error. *Mr. Justice BRANDEIS delivered the opinion of the court. Holloway, a locomotive engineer, was killed on the Louisville & Nashville Railroad while engaged in the performance of his duties. His administrator brought, for the benefit of his widow, an action under the federal Employers' Liability Act in a state court of Kentucky and recovered a verdict of $32,900. The judgment entered thereon was reversed by the Court of Appeals (163 Ky. 125, 173 S. W. 343); and, at the second trial, a verdict was rendered for $25,000. Judgment was entered on this verdict, and had not been killed, not exceeding the amount claimed; to wit: $50,000.00." The instruction refused was: "The court instructs the jury that if they shall find for the plaintiff. their verdict cannot, in any event, exceed a sum which will yield, at interest at 6 per cent., a sum which will represent the proven pecuniary benefits which Mrs. Holloway received from her husband in his lifetime, and had reasonable expectation of receiving from him if he had not been killed. And the court further instructs the jury that the amount so awarded by them should be diminished by such amount as that, by using the interest and a part of the principal sum each year, the principal sum will have been exhausted at the expiration of decedent's expectancy of 28.62 years." No other instruction on the measure of damages was given; and none was requested except an in struction, not now insisted upon, limiting the recov ery specifically to $13,737.60. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes $50.00 a month, but in addition thereto, one- (246 U. S. 533) UNITED STATES v. WEITZEL. 1. BANKS AND BANKING 256(3)—OFFENSES lar to that in which this court has since ex- ["not only her support and maintenance of pressed, in Chesapeake & Ohio Ry. v. Kelly, supra, 241 U. S. 489, 36 Sup. Ct. 630, 60 L. Ed. 1117, L. R. A. 1917F, 367, the measure of damages which should be applied2. The company had, of course, the right to require that this general instruction be supplemented by another calling attention to the fact that, in estimating what amount would compensate the widow, future benefits must be considered at their present value. But it did not ask for any such instruction. Instead it erroneously sought to subject the jury's estimate to two rigid mathematical limitations: (1) That money would be worth to the widow six per cent., the legal rate of interest; (2) that the period during which the future benefits would have continued was 28.62 years-the life expectancy of the husband according to one of several well known actuarial tables. The company was not entitled to have the jury instructed as matter of law either that money was worth that rate, or that the deceased would not in any event have outlived his probable expectancy. See Chesapeake & Ohio Ry. v. Kelly, supra, 241 U. S. 490-492, 36 Sup. Ct. 630, 60 L. Ed. 1117, L. R. A. 1917F, 367. Nor need we determine whether the local rule of practice, that if instructions are offered upon any issue respecting which the jury should be instructed and they are incorrect in form or substance it is the duty of the trial court to prepare or direct the preparation of a proper instruction upon the point in place of the defective one (see Chesapeake & Ohio Ry. v. De Atley, 241 U. S. 310, 316, 36 Sup. Ct. 564, 60 L. Ed. 1016), was applicable in the case at bar. That is a question of state law, with which we have no concern. In the De Atley Case, the Kentucky Court of Appeals assumed for the purposes of its decision that the local rule applied, and was thereby led to decide a question of federal law. Consequently we had and exercised jurisdiction to review its decision upon that question. the Comptroller of the Currency under Rev. St. A receiver of a national bank appointed by § 5234 (Comp. St. 1916, § 9821), being an officer of the United States instead of the bank, is not an agent of the bank within section 5209 (Comp. bezzlement and making false entries by every St. 1916, § 9772), denouncing the offense of empresident, director, cashier, teller, clerk, or agent of a national bank; the conclusion being strengthened by the principle of noscitur a sociis, in view of the position of the word "agent" in the section. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Agent.] 2. BANKS AND BANKING_256(3)—STATUTES 241(1)-OFFENSES-CONSTRUCTION. Statutes creating and defining crimes are not extended by intendment because the court thinks the Legislature should have made them denouncing the offense of embezzlement or mak more comprehensive. Therefore Rev. St. § 5209, ing false entries by a president, director, cashier, teller, clerk, or agent of a national bank, cannot by implication be extended so as to embrace receivers appointed by the Comptroller of the Currency, on the ground that otherwise there would be no statute applying to embez zlement by such receivers. In Error to the District Court of the United States for the Eastern District of Kentucky. Fred W. Weitzel was indicted under Rev. St. § 5209, for embezzlement, and, a demurrer having been sustained on the ground that he did not fall within the terms of the act, the United States brings error. Affirmed. [5, 6] Second. The third assignment, in so far as it relates to the refusal of the Court of Appeals to reverse the judgment "on the ground that the damages are excessive," is not reviewable here. Southern Railway Co. v. Bennett, 233 U. S. 80, 86, 34 Sup. Ct. 566, | 58 L. Ed. 860. It does not appear in the case at bar, as it did in Chesapeake & Ohio Ry. v. Gainey, 241 U. S. 494, 496, 36 Sup. Ct. 633, 60 L. Ed. 1124, that the action of the Court of Appeals in sustaining the verdict was necessarily based upon an erroneous theory of federal law. As to the alleged error of the Court of Appeals in holding as part of the benefit the widow might have received Mr. Justice BRANDEIS opinion of the Court. "The damages should be equivalent to compenThe Comptroller of the Currency is chargsation for the deprivation of the reasonable expectation of pecuniary benefits that would have re-ed with the duty of supervising national sulted from the continued life of the deceased." banks. When he deems it necessary to take Mr. Assistant Attorney General Warren, for the United States. Mr. A. E. Stricklett, of Covington, Ky., for defendant in error. delivered the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 10 possession of the assets of a bank and as- be discharged by returning the bank to the sume control of its operations, he appoints a control of its stockholders or by the appointreceiver under Revised Statutes, § 5234 (Comp. ment of a liquidating agent under Act of St. 1916, § 9821). Weitzel, so appointed re- June 30, 1876, c. 156, 19 Stat. 63. Whether, ceiver, was indicted in the District Court of as the government assumes, such statutory the United States for the Eastern District agent who is elected by the stockholders is of Kentucky under Revised Statutes, § 5209 included under term "agent" as used in sec(Comp. St. 1916, § 9772), for embezzlement and tion 5209, we have no occasion to determine. making false entries. That section does not The question was expressly left undecided in mention receivers, but provides that "every Jewett v. United States, 100 Fed. 832, 840, president, director, cashier, teller, clerk, 41 C. C. A. 88, 53 L. R. A. 568. But the asor agent" of a national bank who commits sumption, if correct, would not greatly aid these offences shall be punished by imprison- its contention. The law can conceive of an ment for not less than five nor more than agent appointed by a superior authority; but ten years. The government contended that the term "agent" is ordinarily used as imthe receiver was an "agent" within the mean-plying appointment by a principal on whose ing of the act. A demurrer to the indict- behalf he acts. The fact that in this secment was sustained on the ground that he tion the words "clerk or agent" follow is not. The court discharged the prisoner "president, director, cashier, teller" tends, and the case comes here under the Criminal under the rule of noscitur a sociis, to confirm Appeals Act of March 2, 1907, c. 2564, 34 Stat. the inference. United States v. Salen, 235 1246 (Comp. St. 1916, § 1704). U. S. 237, 249, 35 Sup. Ct. 51, 59 L. Ed. 210. Furthermore, the term "agent of a bank" would ill describe the office of receiver. [1] The receiver, unlike a president, director, cashier, or teller, is an officer, not of the corporation, but of the United States. In re Chetwood, 165 U. S. 443, 458, 17 Sup. Ct. 385, 41 L. Ed. 782. As such he gives to the United States a bond for the faithful discharge of his duties; pays to the Treasurer of the United States moneys collected; and makes to the Comptroller reports of his acts and proceedings. Revised Statutes, § 5234. Being an officer of the United States he is represented in court by the United States attorney for the district, subject to the supervision of the Solicitor of the Treas ury. Section 380 (Comp. St. 1916, § 556); Gibson v. Peters, 150 U. S. 342, 14 Sup. Ct. 134, 37 L. Ed. 1104. And because he is such officer, a receiver has been permitted to sue in the federal court regardless of citizenship or of the amount in controversy. Price v. Abbott (C. C.) 17 Fed. 506. In a sense he acts on behalf of the bank. The appointment of a receiver does not dissolve the corporation. Chemical National Bank v. Hartford Deposit Co., 161 U. S. 1, 7, 16 Sup. Ct. 439, 40 L. Ed. 595; the assets remain its property, Rosenblatt v. Johnston, 104 U. S. 462, 26 L. Ed. 832; the receiver deals with the assets and protects them for whom it may concern, including the stockholders; and his own compensation and expenses are a charge upon them. § 9825). But a receiver is appointed only when the condition of the bank or its practices makes intervention by the government necessary for the protection of noteholders or other creditors. While the receivership continues the corporation is precluded from dealing by its officers or agents in any way with its assets. And when all creditors are satisfied or amply protected the receiver may [2] Section 5209 is substantially a reenactment of section 52 of the Act of February 25, 1863, c. 58, 12 Stat. 665, 680, the first National Bank Act. It is urged by the government, that the punishment of defalcation by a receiver is clearly within the reason of the statute and that, unless the term "agent" be construed as including receivers, there was no federal statute under which an embezzling receiver of a national bank could have been prosecuted, at least until the Act of February 3, 1879, c. 42, 20 Stat. 280, (Comp. St. 1916, § 10265), made officers of the United States so liable therefor; and, indeed, cannot now be, because he should not be held to be an officer. The argument is not persuasive. Congress may possibly have believed that a different rule should be applied to an officer of the United States who is selected by the Comptroller for a purpose largely different from that performed by officers of the bank, and who gives bond for the faithful discharge of his duties. Fur-2 thermore a casus omissus is not unusual, particularly in legislation introducing a new system.2 The fact that in 1879 Con For example: 1. Extortion by Government "ofcers": Act of March 3, 1825, c. 65, § 12, 4 Stat. 118 (R. S. § 5481 [Comp. St. 1916, § 10253]); United States Section 5238 (Comp. St. 1916, v. Germaine, 99 U. S. 508, 25 L. Ed. 482; amended by Act of June 28, 1906, c. 3574, 34 Stat. 546 (Comp. St. 1916, § 10253), to include "clerk, agent, or employé," and every person assuming to be such officer, etc. 2. Mailing obscene writings: Act of July 12, 1876, c. 186, 19 Stat. 90 (R. S. § 3893 [Comp. St. 255, 10 Sup. Ct. 756, 34 L. Ed. 117; amended by Act 1916, § 10381]); United States v. Chase, 135 U. S. of Sept. 26, 1888, c. 1039, 25 Stat. 496, to include "letters," Andrews v. United States, 162 U. S. 420, 16 Sup. Ct. 798, 40 L. Ed. 1023; 3. Intimidating witness: Act of April 20, 1871, c. 22, § 2, 17 Stat. 13 (R. S. § 5406 [Comp. St. 1916, § 10306]); Todd v. United States, 158 U. S. 278, 15 Sup. Ct. 889, 39 L. Ed. 982; amended by Criminal Code (March 4, 1 See Revised Statutes, §§ 5234, 5141, 5151, 5191, 5201,1909, c. 321, 35 Stat. 1113 [Comp. St. 1916, § 10306]) 5205, 5208 (Comp. St. 1916, §§ 9821, 9678, 9746, 9762, § 136, to include witnesses before a "United States $767, 9770). commissioner or officer acting as such," as well as *542 gress should have found it necessary to en- lish without determining the question of the diact a general law for the punishment of of- vision of the same, so as to prevent undue disficers of the United States who embezzle crimination in favor of the shipper owning the stock of the terminal company. property entrusted to them, but not owned 3. COMMERCE 87-INTERSTATE COMMERCE by the United States, shows both how easily COMMISSION-CONTROVERSIES. a casus omissus may arise and how long a time may elapse before the defect is discov-require trunk line railways to absorb charges ered or is remedied. Statutes creating and defining crimes are not to be extended by intendment because the court thinks the legislature should have made them more comprehensive. Todd v. United States, 158 U. S. 278, 282, 15 Sup. Ct. 889, 39 L. Ed. 982; United States v. Harris, 177 U. S. 305, 20 Sup. Ct. 609, 44 L. Ed. 780. The judgment of the District Court is (246 U. S. 457) MANUFACTURERS' RY. CO. et al. v. UNIT- INTERSTATE COMMERCE 1. COMMERCE 87 2. COMMERCE 87 - INTERSTATE COMMERCE In a proceeding before the Commission to of a terminal railway company, on the ground of discrimination as trunk lines continued to absorb charges of a terminal association, the stock of which they owned, such terminal railway and shippers served by it having sought no special relief because of the Anti-Trust Act (Act July 2, 1890, c. 647, 26 Stat. 209 [Comp. St. 1916, § 8820 et seq.]) are only entitled to have the Commission consider as a circumstance bearing on the question of discrimination that the terminal association had been adjudicated a combination in restraint of interstate commerce. 4. COMMERCE 85 INTERSTATE COMMERCE ACT-DISCRIMINATION-QUESTION FOR COM MISSION. - The Interstate Commerce Act, § 3 (Comp. St. 1916, § 8565), and section 15, as amended in 1910, do not denounce every discrimination, preference, and prejudice, but only those that are undue or unreasonable, and the question whether a discrimination, preference, or preju dice is unreasonable is for the Commission. 5. COMMERCE 95- INTERSTATE COMMERCE COMMISSION-ORDERS OF. Under Interstate Commerce Act, §§ 15, 16, as amended by Act June 29, 1906, c. 3591, §§ 4, 5, 34 Stat. 589, 590, and Act June 18, 1910, c. 309, §§ 12. 13, 36 Stat. 551, 554 Commission as to whether a preference, advan(Comp. St. 1916, §§ 8583, 8584), decisions of the tage, or discrimination is undue or unreasonable, made the basis of administrative orders operating in futuro, will not be disturbed by the courts except upon a showing that they are unsupported by the evidence, were made without hearing, exceed constitutional limits, or for some other reason amount to an abuse of power. 6. COMMERCE 95- INTERSTATE COMMERCE COMMISSION-ORDERS OF. That the evidence would have warranted a different finding by the Commission, and its first order was contrary to the last, does not warrant disturbance of a finding that the refusal of trunk line railways to absorb the charges of a terminal railway was not unjust, unreasonable, or discriminatory. 7. CARRIERS 32(2)-INTERSTATE COMMERCE -DISCRIMINATIONS. Though a large shipper controlled the stock of a terminal railway company, whose charges trunk lines refused to further absorb, the Commission, in a proceeding by the terminal company to compel further absorptions, may, under Interstate Commerce Act, § 15, as amended in 1910, fix a maximum for the joint rates which the terminal and trunk line companies might estab-nal witnesses before "courts." 4. Introducing liquor into Indian country: Act of March 15, 1864, c, 33, 13 Stat. 29 (R. S. § 2139 [Comp. St. 1916, § 4136a]); Sarlls v. United States, 152 U. S. 570, 14 Sup. Ct. 720, 38 L. Ed. 556; amended by Act of July 23, 1892, c. 234, 27 Stat. 260 (Comp. St. 1916, § 4136a), to prohibit the introduction of "ale, beer, wine, or intoxicating liquor or liquors of whatever kind," as well as "ardent spirits." 5. Perjury: Act of March 3, 1869, c. 130, 15 Stat. 326; Act March 3, 1825, c. 65, § 13, 4 Stat. 118 (R. S. § 5211 [Comp. St. 1916, 9774]; see also R. S. § 5392 [Comp. St. 1916, § 10295]); United States v. Curtis, 107 U. S. 671, 2 Sup. Ct. 501, 27 L. Ed. 534; amended by Act of Feb. 26, 1881, c. 82, 21 Stat. 352 (Comp. St. 1916, § 9775), to inIclude false swearing before a "notary public" or "any state officer" properly authorized by the state to administer oaths. That the trunk line railways entering a common point absorbed the terminal charges of a terminal association, the stock of which they owned, does not as a matter of law entitle the terminal railway company, though a common carrier, which had no trunk line, and did termiswitching only, to precisely the same treat ment. 8. COMMERCE 89-FEDERAL COURTS-DisTRICT COURTS-JURISDICTION. Act Oct. 22, 1913, c. 32, 38 Stat. 219 (Comp. St. 1916, § 992), vested in the federal District Courts only the same jurisdiction that was formerly vested in the Commerce Court by Act June 18, 1910; hence where the Commission while recognizing a terminal railway as a common carrier and fixing maximum joint rates failed to fix the allowances and divisions of rates which might be accorded by the trunk lines, the District Court is without jurisdiction in the first instance to exercise such administrative authority. 9. COMMERCE 85-INTERSTATE COMMERCE COMMISSION-SUSPENSIONS. Where, pending proceedings on complaint of a terminal railway and its controlling stock For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |