the terms of the policy; and a discretion rests with the officers of
the society as to what amount of surplus shall be retained and
distributed, and when the distribution shall be made. Ib.
See ACCOUNTS AND ACCOUNTING;
JURISDICTION, E 2;
RECEIVERS, 1, 2;
1. Hepburn Act; commodities clause construed; limitation of application.
In construing the commodities clause of the Hepburn Act the sugges-
tion of the Government to limit its application to commodities
while in the hands of a carrier or its first vendee, and, as thus con-
strued, extend the indirect interest prohibition to commodities be-
longing to corporations the stock whereof is owned in whole or in
part by the carrier, or those which had been mined, manufactured
or produced by the carrier prior to the transportation, cannot be
accepted. United States v. Delaware & Hudson Co., 366.
2. Hepburn Act; commodities clause; railway not prohibited from moving
commodities manufactured, etc., by it.
The provision contained in the Hepburn Act approved June 29, 1906,
c. 3591, 34 Stat. 584, commonly called the commodities clause,
does not prohibit a railway company from moving commodities
in interstate commerce because the company has manufactured,
mined or produced them, or owned them in whole or in part or has
had an interest direct or indirect in them, wholly irrespective of
the relation or connection of the carrier with the commodities at
the time of transportation. Ib.
3. Hepburn Act; commodities clause; what embraced within provision re-
lating to interest of carrier.
The provision of the commodities clause relating to interest, direct or
indirect, does not embrace an interest which a carrier may have in
a producing corporation as the result of the ownership by the
carrier of stock in such corporation provided the corporation has
been organized in good faith. Ib.
4. Hepburn Act; commodities clause; object of clause; transportation pro-
hibited.
Rejecting the construction placed by the Government upon the com-
modities clause, it is decided that that clause, when all its pro-
visions are harmoniously construed, has solely for its object to
prevent carriers engaged in interstate commerce from being associ-
ated in interest at the time of transportation with the commodities
transported, and it therefore only prohibits railroad companies
engaged in interstate commerce from transporting in such com-
merce commodities under the following circumstances and condi-
tions: (a) When the commodity has been manufactured, mined or
produced by a railway company or under its authority and at the
time of transportation the railway company has not in good faith
before the act of transportation parted with its interest in such
commodity; (b) When the railway company owns the commodity
to be transported in whole or in part; (c) When the railway com-
pany at the time of transportation has an interest direct or indirect
in a legal sense in the commodity, which last prohibition does not
apply to commodities manufactured, mined, produced, owned, etc.,
by a corporation because a railway company is a stockholder in
such corporation. Such ownership of stock in a producing com-
pany by a railway company does not cause it as owner of the stock
to have a legal interest in the commodity manufactured, etc., by
the producing corporation. Ib.
5. Hepburn Act; commodities clause; power of Congress to enact; effect to
violate due process provision of the Fifth Amendment.
As thus construed the commodities clause is a regulation of commerce
inherently within the power of Congress to enact. New Haven Rail-
road v. Interstate Commerce Commission, 200 U. S. 361. The con-
tention that the clause if applied to preëxisting rights will operate
to take property of railroad companies and therefore violate the
due process provision of the Fifth Amendment, having been based
upon the assumption that the clause prohibited and restricted in
accordance with the construction which the Government gave that
clause is not tenable as to the act as now construed which merely
enforces a regulation of commerce by which carriers are compelled
to dissociate themselves from the products which they carry and
does not prohibit where the carrier is not associated with the
commodity carried. Ib.
6. Hepburn Act; commodities clause; power of Congress to except timber;
effect of exception on constitutionality of act.
The constitutional power of Congress to make regulations for interstate
commerce is not limited by any requirement that the regulations
should apply to all commodities alike, nor does an exception of one
commodity from a general regulation of interstate commerce nec-
essarily render a statute unconstitutional as discriminating between
carriers; and the exception of timber in the commodities clause of
the Hepburn Act does not render the act unconstitutional, nor can
the question of the expediency of such an exception affect the ques-
tion of power. Ib.
7. Hepburn Act; commodities clause; character of Delaware & Hudson
Company as railroad within purview of clause.
Although the Delaware and Hudson Company may originally have
been chartered principally for mining purposes, as it is now en-
gaged as a common carrier by rail in the transportation of coal in
the channels of interstate commerce, it is a railroad company
within the purview of the commodities clause and is subject to the
provisions of that clause as they are now construed. Ib.
See JURISDICTION, A 3;
STATES, 2;
STATUTES, A 4.
INTOXICATING LIQUORS.
See LOCAL LAw (S. Car.).
See CONSTITUTIONAL LAW, 2, 6.
Where the case goes more than once to the highest court of the State
only the last judgment is the final one. Chesapeake & Ohio Ry, Co.
v. McCabe, 207.
2. Finality of judgment of Circuit Court of Appeals in criminal case.
The judgment of the Circuit Court of Appeals in a criminal case is final,
and is no less so because the appellate jurisdiction of this court
might have been invoked directly under §5 of the act of 1891.
Macfadden v. United States, 288.
See APPEAL AND ERROR, 1;
JURISDICTION, C 6, 7, 8;
PRACTICE AND PROCEDURE, 13, 14;
JUDICIAL DISCRETION.
See EVIDENCE, 2;
MANDAMUS, 4.
JUDICIAL LEGISLATION.
See INTERSTATE COMMERCE, 1.
JUDICIAL POWERS.
See CONSTITUTIONAL LAW, 3;
PRACTICE AND PROCEDURE, 12.
JUDICIAL SALES.
See SALES.
1. Under § 709, Rev. Stat. Sufficiency of involution of Federal question.
To give this court jurisdiction under § 709, Rev. Stat., not only must a
right under the Constitution of the United States be specially set
up, but it must appear that the right was denied in fact or that the
judgment could not have been rendered without denying it. West-
ern Union Telegraph Co. v. Wilson, 52.
2. Under 709, Rev. Stat. Sufficiency of involution of Federal question.
Where the constitutional right was not set up in the original plea, and
the record does not disclose the reasons of the state court for re-
fusing to allow a new plea setting up the constitutional right, and
the record shows that the refusal might have been sufficiently
based on non-Federal grounds, this court cannot review the judg-
ment under § 709, Rev. Stat. Ib.
3. Under 709, Rev. Stat. Sufficiency of involution of Federal question.
Where it does not appear in the record that a telegraph message be-
tween two points in the same State had to be transmitted partly
through another State, except by a plea which the state court re-
fused, on non-Federal grounds, to allow to be filed, no Federal ques-
tion is involved and this court cannot review the judgment under
709, Rev. Stat. Ib.
4. Under § 709, Rev. Stat. What amounts to denial of Federal right.
Where the opinion of the state court shows that it considered and de-
nied the validity of a statute of another State, and its binding
force to control the right of action asserted, a Federal right specially
set up is denied, and this court has jurisdiction to review the judg- ·
ment under § 709, Rev. Stat. Atchison, Topeka & Santa Fe Ry.
Co. v. Sowers, 55.
5. Under 709, Rev. Stat. What constitutes denial of Federal right.
Where the state court has found on the facts based on the evidence that
the vein of plaintiff in error did not extend under the claim of de-
fendant in error, an expression of opinion that there is a difference
between a lode sufficient to validate a location under § 2322, Rev.
Stat., and an apex giving extralateral rights (not decided by this
court, Lawson v. United States Mining Co., 207 U. S. 1) is not nec-
essary to the result, and does not deny a Federal right and this
court has not jurisdiction to review the judgment under § 709,
Rev. Stat. Mammoth Mining Co. v. Grand Central Mining Co., 72.
6. Under § 709, Rev. Stat. Involution of Federal question.
Where the accused during the trial specifically claims that the action
of the state court in denying his plea of once in jeopardy operated
to deprive him of his liberty without due process of law contrary to
the Fourteenth Amendment, this court has jurisdiction under § 709,
Rev. Stat., to review the judgment. Keerl v. Montana, 135.
7. To review judgment of state court-Effect of unnecessary decision of
Federal question.
Unless a decision upon the Federal question is necessary to the judg-
ment, or was in fact made the ground of the judgment, this court
has no jurisdiction to review the judgment of the state court.
Bonner v. Gorman, 86.
8. Criminal appeals by Government; scope of review.
On an appeal taken in a criminal case by the United States under the
act of March 2, 1907, c. 2564, 34 Stat. 1246, from the ruling of the
Circuit Court sustaining a special plea in bar, this court is limited
in its review to that ruling and cannot consider other grounds of
demurrer to the indictment. (United States v. Keitel, 211 U. S.
370, 398.) United States v. Mason, 115.
9. Of appeals from Circuit Court of Appeals in bankruptcy proceedings.
Coder v. Arts, post, p. 223, followed as to the jurisdiction of this court
of appeals from the Circuit Court of Appeals in bankruptcy pro-
ceedings, where the amount in controversy exceeds $2,000 and the
question involved is one which might have been taken on writ of
error from the highest court of a State to this court. Hurley v.
Atchison, Topeka & Santa Fe Ry. Co., 126.
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