the carrier's receipt for the baggage. The conditions attached to the carrier's liability are stated in the fare schedules and on passage tickets of contract form. In National Baggage Committee v. A., T. & S. F. Ry. Co., 32 I. C. C. 152, the commission considered the carriers' rules relative to charges and liabilities in the transportation of baggage and prescribed certain reasonable regulations, including reasonable insurance charges upon baggage declared to be of greater value than the maximum limit provided in the schedules and contract for carriage. All ordinary personal or sample baggage is hidden from view by boxing, wrapping, or other means, and the amended law seems clearly to recognize the carrier's right to fix conditions and terms applicable to the transportation of baggage dependent upon the value as declared by the person offering the baggage for transportation. The necessity for revision of the bills of lading, live stock contracts, and other similar contracts of carriage, as well as of certain parts of the carriers' classifications and rate schedules, is manifest. Bills of lading and shipping contracts can and ought to be at once amended by eliminating obviously unlawful and invalid provisions. Such action will obviate for the immediate future numerous controversies that otherwise would properly arise. Proper analysis should be made of the classifications and tariffs to bring them into harmony with the amended law. Such changes in classifications and rate schedules cannot be made upon statutory notice and become effective contemporaneously with the new law. Permission is therefore hereby given to carriers to make effective on June 2, 1915, upon not less than three days' notice to the public and to the commission, given in the manner prescribed in the act and in the commission's regulations, amendments to the classifications and rate schedules which elimi nate provisions or rules that are in conflict with he terms of the new law, provided no such amendent has the effect of increasing any rate or harge for services. If, in a proper manner and a proper proceeding, it shall be made to appear that, with regard to any commodity or commodities, the existing rates do not afford the carriers proper compensation for the services they perform and the risk which is inposed upon them, it could hardly be denied that the rates on such commodities might properly be increased in a sufficient amount to properly compensate the carriers for their added risk and liability. Where rates are lawfully based upon declared values, the difference in rates should be no more than fairly and reasonably represents the added insurance. It does not appear that this amendment to the act affords justification for any increase in rates on commodities in general. As has been said, the carrier may not lawfully impose unreasonable rates upon one commodity in order to compensate it for risk or liabilities incurred in connection with the transportation of another commodity, and it is not to be forgotten that the liabilities here considered are only those for loss, damage, or injury to the property caused by a carrier or its agents or employés; in other words, the loss, damage, or injury resulting from the neglects or omissions of a carrier or its agents. The commission has been conducting an investigation with regard to bills of lading, entitled In the Matter of Bills of Lading, Docket No. 4844. Further hearings in that proceeding may be necessary in the light of the Cummins Amendment. In that connection matters that have been inform and the course to be pursued for the immediate future in the light thereof. All of the questions herein discussed are, of course, subject to judicial interpretation, and the views indicated herein might be somewhat changed in the light of more complete information supported by competent evidence. The classification, tariffs, receipt and other forms used by the express companies have been prescribed by order of the commission. The new law, of course, applies to them as well as to other carriers. They have presented suggested changes in their rules and forms which will be disposed of by a supplemental order in the Express Case. In Error to the Court of Appeals of the District of Columbia. Petition for mandamus by John W. Le Crone, as Receiver of the Orinoco Company, Limited, against William G. McAdoo, Secretary of the Treasury. A judgment of the Supreme Court of the District of Columbia dismissing the petition was affirmed by the Court of Appeals (48 App. D. C. 181), and petitioner brings error. Writ of error dismissed. Mr. George N. Baxter, of Cincinnati, Ohio, for plaintiff in error. Mr. Solicitor General King, for defendant Mr. Justice HOLMES delivered the opinion of the Court. ally presented and urged in this informal proceed-in error. ing may be presented in a formal way, supported by testimony, and a determination can there be reached on questions as to which the commission now has no information upon which it could base a lawful order. What is attempted here is simply [1, 2] This is a petition to the Supreme to indicate the impressions gained from the expe- Court of the District of Columbia for mandarience had in the past and from the suggestions mus to direct the Secretary of the Treasury informally presented by those who are vitally interested in the effect of the Cummins Amendment to pay the amount of two certificates issued For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (40 Sup.Ct.) to the petitioner by the Secretary of State. | of Secretary of the Treasury, his successor The petitioner is receiver of the Orinoco Com- was not substituted within twelve months; pany, Limited. That Company had claims which is the limit for such substitution fixed for damages against the United States of by the Act of February 8, 1899, c. 121, 30 Venezuela, which, with others, by agreement | Stat. 822 (Comp. St. § 1594). It is said that *218 *between the two governments, the United States of America released upon receiving from the United States of Venezuela a certain sum in trust for the parties having the claims. By the Act of February 27, 1896, c. 34, 29 Stat. 32 (Comp. St. § 6668), moneys so received are to be paid into the Treasury and the Secretary of State is to "determine the amounts due claimants, respectively, and certify the same to the Secretary of the Treasury, who shall, upon the the Code of the District of Columbia, § 1278, allows the petitioner to recover damages in the same proceeding and that the petition should be retained to charge Mr. McAdoo personally. But apart from other questions the damages are only incident to the allowance of the writ of mandamus, and as that cannot be allowed the whole proceeding is at an end. See Pullman Co. v. Knott, 243 U. S. 447, 451, 37 Sup. Ct. 428, 61 L. Ed. 841; Pullman Co. v. Croom, 231 U. S. 571, 577, 34 Sup. Ct. 182, 58 L. Ed. 375. Writ of error dismissed. presentation of the certificates of the Secretary of State, pay the amounts so found to be due." Each of such trust funds is declared to be "appropriated for the payment to the ascertained beneficiaries thereof of the certificates" provided for. The answer alleged that there were pending in the same Supreme Court two bills in equity, one by a (Argued April 22, 1920. Decided June 1, 1920.) private person and one by the Orinoco Company, Limited, asserting claims to the fund, (253 U. S. 219) CITY OF NEW YORK v. CONSOLIDATED GAS CO. OF NEW YORK et al. No. 566. DENYING PETITION TO INTERVENE IS NOT AP- that the respondent and petitioner both are 1. APPEAL AND ERROR 78(2), 87(3)—Order parties to those proceedings, the petitioner having submitted to the jurisdiction, and that the petitioner should be limited to those proceedings and await the result of the decrees. The petitioner demurred. The demurrer was overruled and the petition was dismissed by the Supreme Court and its judgment was affirmed by the Court of Ap-basis for appeal. peals. The theory of the answer seems to be that the purpose of the Act of Congress was to appropriate a fund to the claim and to transfer the claim to that fund, leaving the question of title open to litigation in the ordinary courts, as has been held in more or less similar cases. Butler v. Goreley, 146 U. S. 308, 309, 310, 13 Sup. Ct. 84, 36 L. Ed. 981; Id., 147 Mass. 8, 12, 16 N. E. 734; United States v. Dalcour, 203 U. S. 408, 422, 27 Sup. Ct. 58, 51 L. Ed. 248; Robertson v. Gordon, 226 U. S. 311, 317, 33 Sup. Ct. 105, 57 L. Ed. 236. See, also, Bayard v. White, 127 U. S. 246, 8 Sup. Ct. 1223, 32 L. Ed. 116. It is thought that Congress hardly can have sought to confer judicial powers upon the Secretary of State. United States v. Borcherling, 185 U. S. 223, 234, 22 Sup. Ct. 607, 46 L. Ed. 884. And as the certificates are not gifts but are in recognition of outstanding claims, Williams v. *219 Heard, *140 U. S. 529, 11 Sup. Ct. 885, 35 L. Ed. 550, reversing s. c., 146 Mass. 545, 16 N. E. 437, judicial action is supposed to be necessary for the final determination of the right. But we cannot consider that question or the other arguments upon the merits of the case, because, Mr. McAdoo having resigned the office An application by a city for leave to intervene in the suit by a gas company to restrain the enforcement of a gas rate is addressed to the discretion of the court, and an order deny. ing it is not a final order, which furnishes the 2. COURTS 382(5)-FINAL ORDER IN CIRCUIT COURT OF APPEALS IN CASE NOT WITHIN ITS JURISDICTION CAN BE REVERSED. Where the Circuit Court of Appeals affirmed an order which was not appealable in a suit in which the jurisdiction of the District Court depended solely on a claimed violation of the rights of plaintiff under the United States Constitution, so that the Supreme Court alone had appellate jurisdiction thereof, the Supreme Court has jurisdiction to review the judgment of the Circuit Court of Appeals, under Judicial Code, & 241 (Comp. St. § 1218) and will reverse that judgment and remand the case to that court, with directions to dismiss the appeal. Appeal from the United States Circuit Court of Appeals for the Second Circuit. Suit by the Consolidated Gas Company of New York against Charles D. Newton, Attorney General, and others, to enjoin the enforcement of the 80-cent gas law. The order of the District Court, denying application of the City of New York to intervene (256 F. 238), was affirmed by the Circuit Court of Appeals (260 F. 1022), and the City of New York appeals. Reversed and remanded to Circuit Court of Appeals, with directions to dismiss the appeal. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes See, also, 250 U. S. 671, 40 Sup. Ct. 15, 63 L. Ed. 1199. *220 *Mr. Vincent Victory, of New York City, for appellant. Mr. John A. Garver, of New York City, for appellees. Memorandum opinion by direction of the Court by Mr. Justice DAY. occurred. CONTAINED INTERSTATE FREIGHT. Under Employers' Liability Act (Comp. St. §§ 8657-8665), a railway trainman was employed in "interstate commerce," if any of the cars in his train contained interstate freight. A judgment affirming an award under the Pennsylvania Workmen's Compensation Act, The Consolidated Gas Company of New for the death of a railroad trainman must be York brought suit to enjoin the enforcement reversed, if decedent was employed in comof the New York 80-cent gas law. The juris-merce between the states when the accident diction was invoked solely upon the ground that the rate was confiscatory and hence vio- 2. COMMERCE 27(6)-TRAINMAN EMPLOYED lated constitutional rights of the company. IN "INTERSTATE COMMERCE," IF ANY CAB The city of New York applied for leave to intervene as a party defendant in the action. The District Judge denied the petition for intervention, stating that the Public Service Commission, the Attorney General, and the district attorney properly represented private consumers; that the city had no interest in the litigation as a consumer, was not the governmental body which had fixed the rate, and was not charged with the duty of enforcing it. From the order (Consolidated Gas Co. of New York v. Newton, 256 Fed. 238) denying the application to intervene, the city of New York prosecuted an appeal to the Circuit *221 Court of Appeals, and the latter court (260 [1, 2] The application was addressed to the discretion of the District Court, and the order appealed from was not of that final character which furnished the basis for appeal. Ex parte Cutting, 94 U. S. 14, 22, 24 L. Ed. 49; Credits Commutation Co. v. United States, 177 U. S. 311, 315, 20 Sup. Ct. 636, 44 L. Ed. 782; Ex parte in the Matter of Leaf Tobacco Board of Trade, 222 U. S. 578, 581, 32 Sup. Ct. 833, 56 L. Ed. 323. As the jurisdiction of the District Court was based upon constitutional grounds only, the case was not appealable to the Circuit Court of Appeals. But, an appeal having been taken and a final order made in the Circuit Court of Appeals, we have jurisdiction to review the question of jurisdiction of that court. Judicial Code, § 241 (Comp. St. § 1218); Union & Planters' Bank v. Memphis, 189 U. S. 71, 73, 23 Sup. Ct. 604, 47 L. Ed. 712. The proper course is to reverse the judg [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.] 3. CомMERCE 27(6)-RAILWAY TRAINMAN ENGAGED IN INTERSTATE COMMERCE, THOUGH CARS NOT BILLED WHEN HANDLED BY HIM. A railway trainman, belonging to a crew operating a train of loaded cars from a colliery to yards 2 miles away, was engaged in interstate commerce, where the ultimate destina tion of some of the cars was outside the state, oranda delivered to the conductor by the shipas appeared from the instruction cards or memping clerk at the mine, and freight charges were paid for the entire distance, beginning at the mine, though the cars were not weighed and billed to the consignee until another crew moved them from such yard to scales same 10 miles away, where they were inspected, weighed, and billed. Mr. Justice Clarke dissenting. On Writ of Error and Writ of Certiorari to the Supreme Court of the State of Pennsylvania. Proceedings under the Workmen's Compensation Act of Pennsylvania by Margaret of her husband, opposed by the Philadelphia L. Hancock for compensation for the death & Reading Railway Company, employer. Compensation was awarded, and the award vania (264 Pa. 220, 107 Atl. 735), and the affirmed by the Supreme Court of Pennsylof petition dismissed, judgment reversed, employer brings error and certiorari. Writ and cause remanded. See, also, 250 U. S. 658, 40 S. Ct. 54, 63 L. Ed. 1193. ment of the Circuit Court of Appeals, and remand the case to that court, with directions to dismiss the appeal. Four Hundred and Forty-Three Cans of Egg Product v. United States, 226 U. S. 172, 184, 33 Sup. Ct. 50, 57 Messrs. George Gowen Parry and Charles L. Ed. 174; Carolina Glass Co. v. South Car-Heebner, both of Philadelphia, Pa., for olina, 240 U. S. 305, 318, 36 Sup. Ct. 293, 60 plaintiff in error. L. Ed. 658. So ordered. Mr. Hannis Taylor, of Washington, D. C., for defendant in error. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (40 Sup.Ct.) #285 *Mr. Justice McREYNOLDS delivered the opinion of the Court. Respondent maintains that the coal in cars ticketed for transportation as above described did not become part of interstate commerce until such cars reached Shamokin The judgment below affirmed an award for respondent under the Workmen's Com-scales and were there weighed and billed. pensation Act of Pennsylvania (Act June 2, 1915 [P. L. 736]), granted because of the death of her husband from an accident while in the petitioner's employ as a trainman. But we think former opinions of this court require the contrary conclusion. The coal was in the course of transportation to another state when the cars left the mine. After a writ of error had been sued out There was no interruption of the movement; we allowed a writ of certiorari. 250 U. S. it always continued towards points as orig658, 40 Sup. Ct. 54, 63 L. Ed. 1193. The for-inally intended. The determining circummer must be dismissed; the case is properly here upon the latter. [1, 2] If, when the accident occurred, the husband was employed in commerce between states, the challenged judgment must be reversed, and he was so employed if any of the cars in his train contained interstate freight. Employers' Liability Act April 22, 1908, c. 149, 35 Stat. 65 (Comp. St. 88 8657-8665); St. L., S. F. & Tex. Ry. v. Seale, 229 U. S. 156, 161, 33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156; New York Central & Hudson River R. R. Co. v. Carr, 238 U. S. 260, 35 Sup. Ct. 780, 59 L. Ed. 1298; New York Central R. R. Co. v. Winfield, 244 U. S. 147, 37 Sup. Ct. 546, 61 L. Ed. 1045, L. R. A. 1918C, 439, Ann. Cas. 1917D, 1139; New York Central R. R. Co. v. Porter, 249 U. S. 168, 39 Sup. Ct. 188, 63 L. Ed. 536; Southern Pacific Co. v. Industrial Accident Commission (January 5, 1920) 251 U. S. 259, 40 Sup. Ct. 130, 64 L. Ed. [3] The essential facts are not in controversy; the nature of the employment, therefore, is a question of law. stance is that the shipment was but a step in the transportation of the coal to real and ultimate destinations in another state. Coe v. Errol, 116 U. S. 517, 6 Sup. Ct. 475, 29 L. Ed. 715; Railroad Commission of Ohio v. Worthington, 225 U. S. 101, 108, 32 Sup. Ct. 653, 56 L. Ed. 1004; Texas & New Orleans R. R. Co. v. Sabine Tram Co., 227 U. S. 111, 124, 126, 33 Sup. Ct. 229, 57 L. Ed. 442; Railroad Commission of Louisiana v. Texas & Pacific R. R. Co., 229 U. S. 336, 341, 33 Sup. Ct. 837, 57 L. Ed. 1215; Baer Brothers Mercantile Co. v. Denver & Rio Grande R. R. Co., 233 U. S. 479, 34 Sup. Ct. 641, 58 L. Ed. 1055. The judgment of the court below is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Mr. Justice CLARKE dissents. (253 U. S. 209) UNITED STATES ex rel. JOHNSON et al. v. AUTHORIZED TO REVERSE DECISION GRANTING The duties of the deceased never took him out of Pennsylvania; they related solely to transporting coal from the mines. When injured he belonged to a crew operating a train of loaded cars from Locust Gap colliery to Locust Summit yard, two miles away. 1. INDIANS 13-SECRETARY OF INTERIOR The ultimate destination of some of these cars was outside of Pennsylvania. This appeared from instruction cards or memoranda delivered to the conductor by the shipping clerk at the mine. Each of these referred to a particular car by number and contained certain code letters indicating that such car with its load would move beyond the state. Pursuing the ordinary course these cars #286 Under Act April 26, 1906, 2, the Secretary of the Interior had power, after informing the Commissioner to the Five Civilized Tribes that his decision granting enrollment as members of the Creek Nation to certain applicants was affirmed, to reverse his decision and deny enrollment, where the names had never been placed on the rolls. 2. MANDAMUS 73(1) WILL NOT LIE TO COMPEL PLACING OF NAMES ON BOLLS OF INDIAN TRIBE. were hauled to Locust Summit yard and placed upon appropriate tracks; there the duties of the first crew in respect of them terminated. Later, having gathered them Under Act April 26, 1906, § 2, the Secre into a train, another crew moved them some tary of the Interior was the final judge whether 10 miles to Shamokin scales, where they names should be placed on the rolls of memwere inspected, weighed, and billed to spe-bers of the Creek Nation, and where he denied cifically designated consignees in another enrollment the names cannot be ordered put on state. In due time they passed to their final the rolls, in a mandamus proceeding, upon a suggestion that he made a mistake, or that destinations over proper lines. Freight he came very near to granting enrollment. charges at through rates were assessed and paid for the entire distance beginning at In Error to the Court of Appeals of the the mine. District of Columbia. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Mandamus proceeding by the United not lose his power to do the conclusive act, States, on relation of Jennie Johnson and ordering and approving an enrollment, Garothers, against John Barton Payne, Secretary field v. Goldsby, 211 U. S. 249, 29 Sup. Ct. 62, of the Interior. A judgment dismissing the 53 L. Ed. 168, until the act was done. New petition was affirmed by the Court of Appeals Orleans v. Paine, 147 U. S. 261, 266, 13 Sup. of the District of Columbia (48 App. D. C. Ct. 303, 37 L. Ed. 162; Kirk v. Olson, 245 U. 169), and the relators bring error. Affirmed. S. 225, 228, 38 Sup. Ct. 114, 62 L. Ed. 256. The petitioners' names never were on the The Secretary was the final judge whether they should be, and they cannot be ordered to be put on now, upon a suggestion that the Secretary made a mistake or that he came very near to giving the petitioners the rights they claim. Judgment affirmed. *210 *Mr. Charles H. Merillat, of Washington, rolls. D. C., for plaintiffs in error. Messrs. Assistant Attorney General Nebeker, Charles D. Mahaffie, and C. Edward Wright, all of Washington, D. C., for defendant in error. Mr. Justice HOLMES delivered the opinion of the Court. (253 U. S. 212) FIDELITY TITLE & TRUST CO. v. DU- This is a petition for a writ of mandamus to require the Secretary of the Interior to place the names of the petitioners upon the rolls of the members of the Creek Nation. The petition was dismissed by the Supreme Court of the District of Columbia and the judgment was affirmed by the Court of Appeals. We are not called upon to consider the antecedent facts of the petitioners' case 1. JURY 37 (Argued March 25 and 26, 1920. Decided June 1, 1920.) No. 300. ON REVERSAL OF JUDGMENT FOR PLAINTIFF NEW TRIAL SHOULD ВЕ GRANTED. On reversing a judgment for plaintiff in dict, the Circuit Court of Appeals should have an action for personal injury entered on a ver 2. MUNICIPAL CORPORATIONS ~ 809 (1) PARTY SUSPENDING BANNER ABOVE STREET as all that is material can be stated in a few *211 former letter to *him, and reversing his decision. It was ordered that if the petitioners' names were on the rolls they should be stricken off. The Secretary gave no reasons for his action but it is suggested that he acted under mistakes of law and fact, and it is argued that when the first letter was written the petitioners' rights were fixed. [1, 2] The last is the only point in the case and with regard to that it is argued that this reversal of the first decision without a hearing was a denial of due process of law. It is not denied that the Secretary might have declined to affirm the decision below in the first instance, and that having been his power, the only question is when it came to an end. While the case was before him he was free to change his mind, and he might do so none the less that he had stated an opinion in favor of one side or the other. He did a A party suspending a political banner over street by means of a wire cable fastened to chimney, which was pulled down by the cable during a storm, was not relieved of liability to a traveler on the street injured by a falling brick because of the absence of any contract with him. ~809 (1) 3. MUNICIPAL CORPORATIONS A party suspending a political banner over a street by means of a wire cable attached to a chimney, which was pulled down by the cable during a storm, under a contract with another party, could not escape liability for injury from falling brick by stepping out of control a few days before the accident; the danger having been called fully into existence by it. 4. MUNICIPAL CORPORATIONS 821 (18) PARTY SUSPENDING A BANNER OVER STREET HELD NOT TO HAVE SURRENDERED CONTROL AS MATTER OF LAW. Where defendant suspended a banner above a street by means of a wire cable attached to a chimney on a hotel building, and handled the banner whenever it wanted to, and no one else touched it, and the party employing defendant to suspend the banner testified that he asked defendant to put it up and take it down and said he did not want to have anything to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |