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The Supreme Court would not be justified in taking up the patents set forth in the findings, and, in the absence of the explanatory and construing testimony of the expert witnesses with respect to the pertinent fact situations, in attempting to pass upon the various questions, whether of a scientific nature or otherwise, that are involved and upon such a necessarily limited consideration in overruling the conclusions of fact reached by the Court of Claims upon the entire record (Bischoff v. Wethered, 9 Wall 812, and kindred cases cited).

BENJAMIN B. FOSTER AND ROBERT R. TODD, EXECUTORS OF THE ESTATE OF ANNA FOSTER FORD, DECEASED, PETITIONERS, v. THE UNITED STATES

[No. 42642. Decided December 7, 1936. Motion for new trial overruled, with opinion, April 5, 1937. 84 C. Cls. 193]

Certiorari to review a judgment of the Court of Claims dismissing the petition of plaintiff for refund of income

tax.

The judgment of the Court was affirmed, January 31, 1938 (303 U. S., 118) the Supreme Court stating:

Held:

Petitioners' right (as executors) to an income tax refund depends upon whether a dividend paid by the Foster Lumber Company in 1930 is tax exempt as representing corporate earnings accumulated before March 1, 1913. This dividend is taxable under the Revenue Act of 1928 (45 Stat. 791) if paid from earnings accumulated after 1913.

Petitioners contend that the 1930 dividend was traceable to the Com

pany's pre-1913 accumulations because its post-1913 earnings had been exhausted by a distribution in 1929.

1. That the transaction under which the Foster Company in 1929 paid $1,025,000 cash for its own stock of $50,000 par value does not fall within Subsections (a) and (b) of Section 115 of the Act of 1928; its character and effect are determined by Subsections (c) and (h), which relate to distributions in complete or partial liquidation.

2. Earnings of a corporation accumulated prior to 1913, under decisions of the court prior to even the 1924 Revenue Act, are to be considered capital; (So. Pac. Co. v. Lowe, 247 U. S. 335, et al.) and in the light of these decisions Con

gress in the Revenue Act of 1928, as well as 1924, obviously intended that corporate funds distributed under the circumstances shown in this case should be "chargeable to capital account" and that stock purchases of the type here involved should not be considered "for the purpose of determining the taxability of subsequent distributions by the corporation."

3. Acceptance of petitioners' contention would permit corporate profits accumulated since March, 1913, to escape taxation contrary to the provisions and purpose of the 1928 revenue act. The bookkeeping mingling of corporate earnings and profits made before and after March 1, 1913, does not alter the act nor can such action render taxable profits non-taxable. The distribution of $1,025,000 was "properly chargeable to capital account" and was not paid out of profits earned since March 1, 1913.

Mr. Justice Black delivered the opinion of the court.

THE UNITED STATES, APPELLANT, v. THE KLAMATH AND MOADOC TRIBES AND YAHOOSKIN BAND OF SNAKE INDIANS.

[No. E-346. Decided June 7, 1937. 85 C. Cls. 451]

Certiorari to review a judgment of the Court of Claims allowing certain claims of the Klamath and Moadoc Tribes and Yahooskin Band of Snake Indians against the United States for the value of reservation lands taken by the Government, with offset; judgment for $5,313,347.32 with interest (85 C. Cls. 451).

The judgment of the Court was affirmed, April 25, 1938, the Supreme Court holding:

1. The tract of timber taken by the Government was a part of the reservation retained by plaintiffs out of the country held by them in immemorial possession; the worth attributable to the timber was a part of the value of the land upon which it was standing, and the value of the timber was properly included as a part of the compensation for the lands taken (U. S. v. Shoshone Tribe, decided same day.

2. The established rule is that the taking of property by the United States in the exertion of its power of eminent domain implies a promise to pay just compensation, i. e., value at the time of the taking plus an amount sufficient to produce the

full equivalent of that value paid contemporaneously with the taking. (Jacobs v. U. S., 290 U. S. 13, 16-17, and cases cited); and interest was properly included in the findings.

3. The tract involved (87,000 acres) was not "lost by mistake" as contended by the Government; Congress had power to direct the exchange which was made and for that purpose to authorize the expropriation of plaintiffs' lands; it was a valid exertion of sovereign power and implied a promise to pay just compensation.

4. The 87,000 acres were taken pursuant to the Act of 1906 (34 Stat. 325); the taking was ratified by appropriation and payment under the Act of 1908 (35 Stat. 70); it implied a promise to pay just compensation; and the lands in question were not "wrongfully appropriated" in the contemplation of the Act of 1920 (41 Stat. 623).

5. Congress, by the Act of May 15, 1936 (49 Stat. 1276), specifically directed the Court of Claims to determine the claims of plaintiffs on the merits and to enter judgment thereon "upon the present pleadings, evidence and findings of fact"; and unquestionably the findings of fact are sufficient to sustain the judgment.

Mr. Justice Butler delivered the opinion of the court.

THE UNITED STATES, PETITIONER, v. SHOSHONE TRIBE OF INDIANS OF THE WIND RIVER RESERVATION IN WYOMING

[No. H-219. Decided June 1, 1937. 85 C. Cls. 331]

Certiorari to review a judgment of the Court of Claims, upon mandate of the Supreme Court, allowing certain claims of the Shoshone Tribe of Indians of the Wind River Reservation in Wyoming against the United States for the value of tribal lands taken by the Government, with offset; judgment for $4,408,444.23, with interest (85 C. Cls. 331).

The judgment of the Court of Claims was affirmed, April 25, 1938, the Supreme Court holding:

1. The sole question for decision is whether the Court of Claims erred in holding that the right of the tribe to the lands in question included the timber and mineral resources within the reservation, a part of which was taken by the United States by putting upon it, without the tribe's consent, a band of Arapahoe Indians.

2. In this case the Supreme Court had previously held (299 U. S. 476, 484) that the tribe had the right of occupancy with all its beneficial incidents; this right being the primary one and as sacred as the fee, and division by the United States of the Shoshones' right with the Arapahoes was an appropriation of the land pro tanto; that although the United States had legal title to the land and power to control and manage the affairs of the Indians, it did not have power to give to others or to appropriate to its own use any part of the land without rendering, or assuming the obligation to pay, just compensation to the tribe, for that would not be the exercise of guardianship or management but confiscation.

3. Under the treaty with the Shoshones, the United States granted and assured to the tribe peaceable and unqualified possession of the land in perpetuity. Minerals and standing timber are constituent elements of the land itself.

4. The treaty, made with knowledge that there were mineral deposits and standing timber in the reservation, contains no reservation of any beneficial interest in them. Doubts, if any, as to ownership of lands, minerals or timber would be resolved in favor of the tribe, as transactions between a guardian and his wards are to be construed favorably to the ward.

5. Although the United States retained the fee, and the tribe's right of occupancy was incapable of alienation or of being held otherwise than in common, that right is as sacred and as securely safeguarded as is fee simple absolute title.

6. United States v. Cook (19 Wall. 591) gives no support to the contention that in ascertaining just compensation for the Indian right taken, the value of mineral and timber resources in the reservation should be excluded; that question was not therein adjudicated.

Mr. Justice Butler delivered the opinion of the court; Mr. Justice Reed dissenting.

MEURER STEEL BARREL COMPANY, INC. v. THE UNITED STATES

[No. C-1278]

[85 C. Cls. 554; 302 U. S. 754]

Petition for writ of certiorari denied by the Supreme Court, December 6, 1937.

LOUIS H. PINK, SUPERINTENDENT OF INSURANCE OF THE STATE OF NEW YORK, AS LIQUIDATOR FOR THE SOUTHERN SURETY COMPANY OF NEW YORK, A CORPORATION, v. THE UNITED STATES

[No. 43351]

[85 C. Cls. 121; 303 U. S. 642]

Petition for writ of certiorari denied by the Supreme Court February 28, 1938.

DON C. BOTHWELL AND GEORGE N. DAVIS, AS RECEIVERS OF THE MAGNA OIL & REFINING CO., A CORPORATION DISSOLVED, v. THE UNITED STATES

[No. 42812]

[85 C. Cls. 150; 303 U. S. 645]

Petition for writ of certiorari denied by the Supreme Court February 28, 1938.

MIDDLE STATES PETROLEUM CORPORATION v. THE UNITED STATES

[No. 42714]

[85 C. Cls. 232; 303 U. S. 645]

Petition for writ of certiorari denied by the Supreme Court February 28, 1938.

THEODORE S. WILKINSON v. THE UNITED

STATES

[No. 43352]

[85 C. Cls. 329; 303 U. S. 643]

Petition for writ of certiorari denied by the Supreme Court February 28, 1938.

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