that published in compliance with the statute." shows that it did not uphold or give effect to the statutory rate as such, but rested its decision on other independent grounds which appeared to it to preclude a recovery by the carrier. These grounds are broad enough to sustain See 2. The injunction, in obedience to which the schedule was put into effect and maintained during the period covered by the shipments, was awarded without taking any bond or imposing the judgment, and, if not well taken, are any terms or conditions for the security not without substantial support. of the carrier; and in these circum- Enterprise Irrig. Dist. v. Farmers Mut. stances the damage arising from the in- Canal Co. 243 U. S. 157, 163-165, 61 junction was damnum absque injuria, L. ed. 644, 648, 649, 37 Sup. Ct. Rep. for which no recovery could be had,- 318. Some may possibly involve Fedthe court citing on this point Russell v. eral questions, but, under the jurisdicFarley, 105 U. S. 433, 437, 438, 26 L. ed. tional statute, as amended in 1916, they 1060-1062,1 and saying: "In reality are not such as entitle the carrier to a the plaintiff's [carrier's] whole case review of the judgment on a writ of seems properly hinged upon the real error. meaning and effect of the first decree of Writ of error dismissed. the United States Supreme Court. The matter that was settled in that suit [meaning by that decree] was the right of the state to an injunction, and it was found that the state was entitled to the relief sought. Neither the state court nor the United States Supreme Court saw fit to impose any terms or conditions. The error in the plaintiff's [carrier's] contention inheres in the failure to recognize the injunction as being the continuing expression of the court until such time as it [375] may be modified or dissolved by a new judgment or decree. During such time it is impossible that there could have been any other measure of the rights and obligations of the parties than that provided in the decree itself. When that court finally dissolved the injunction, it did not reverse its prior judgment, nor, it seems to us, did it profess to give to the carriers any rights with respect to past shipments that did not exist at the time they were made. These rights were governed by the former decree." [376] MINNEAPOLIS, ST. PAUL, & SAULT STE. MARIE RAILWAY COMPANY, Plff. in Err., V. C. L. MERRICK COMPANY. (See S. C. Reporter's ed. 376–378.) - Error to state court Federal question settled by prior decision. A writ of error will not lie from the Federal Supreme Court to a state court in the state court was called upon to decide, a case in which the only question which and did decide, is one which was no longer Note. On the general subject of writs of error from the United States Supreme Court to state courts-see notes to Martin v. Hunter, 4 L. ed. U. S. 97; Hamblin v. Western Land Co. 37 L. ed. U. S. 267; Re Buchanan, 39 L. ed. U. S. 884; and Kipley v. Illinois, 42 L. ed. U. S. 998. 3. The principle that one who has On what adjudications of state courts been unjustly enriched at the expense of can be brought up for review in the another may be made to respond to the Supreme Court of the United States latter was without application, for here by writ of error to those courts-see the shipper was responsible in no great-note to Apex Transp. Co. v. Garbade, er degree for what occurred than was the carrier. The opinion rendered by that court 1 See also Meyers v. Block, 120 U. S. 206, 211, 30 L. ed. 642, 643, 7 Sup. Ct. Rep. 525; Lawton v. Green, 64 N. Y. 326, 330; Palmer v. Foley, 71 N. Y. 106, 108; St. Louis v. St. Louis Gas Light Co. 82 Mo. 319, 355; Hayden v. Keith, 32 Minn. 277, 278, 20 N W. 195; Scheck v. Kelly, 95 Fed. 941; Arkadelphia Mill. Co. v. St. Louis South western R. Co. 249 U. S. 134, 145, 63 L. ed. 517, 524, P.U.R.1919C, 710, 39 Sup. Ct. Rep. 237. 62 L.R.A. 513. On how and when questions must be raised and decided in a state court in order to make a case for a writ of error from the Supreme Court of the United States-see note to Mutual L. Ins. Co. v. McGrew, 62 L.R.A. 33. On what the record must show respecting the presentation and decision of a Federal question in order to confer jurisdiction on the Supreme Court of the United States of a writ of error to a state court-see note to Hooker v. Los Angeles, 63 L.R.A. 471. an open one in the Federal Supreme Court, the ruling of the latter court being the basis of the state court's decision. [For other cases, see Appeal and Error, 11101137, in Digest Sup. Ct. 1908.] [No. 15.] Argued January 29, 1920. Decided December 20, 1920. N ERROR to the District Court of the Sixth Judicial District of the the amount claimed. 35 N. D. 331, 160 N. W. 140. The carrier prosecutes this writ of error. The pleadings, the opinion of the supreme court, and the briefs in this court, show that the only controversy in that court was over the meaning and effect of the first judgment in the injunction suit as affirmed by this court "without prejudice," etc. On the part of the shipper it was insisted that that judgment finally and conclusively determined the validity of the statutory rate in respect and on the part of the carrier it was of the period preceding its rendition; insisted that the judgment was interlocutory merely, and was entirely superseded and held for naught by the subsequent judgment of this court in the later proceeding. amount a State of North Dakota to review diction. See same case below in supreme court, 35 N. D. 331, 160 N. W. 140. The facts are stated in the opinion. Mr. John L. Erdall argued the cause, and, with Messrs. A. H. Bright and H. B. Dike, filed a brief for plaintiff in error. Messrs. Andrew Miller and Alfred Zuger argued the cause, and, with Mr. B. F. Tillotson, filed a brief for defendant in error. The court sustained the shipper's contention, and rejected that of the carrier, saying: "The fallacy in respondent's [carrier's] contention, as we view it, lies in the unwarranted assumption that the latter judgment relates back and supersedes the first. When respondent [carrier] applied for and was granted leave to make a new showing as to the confiscatory character of the statutory rates, it amounted in legal effect to the commencement of a new action to determine a new issue; to wit, whether, as applied to and in the light of facts subsequently arising, such statutory rates are confiscatory. The case was not reopened for the purpose of relitigating the issues for in any way affected. This is made clear by the recent decision of the Supreme Court in Missouri v. Chicago, B. & Q. R. Co. 241 U. S. 533, 60 L. ed. 1148, 36 Sup. Ct. Rep. 715." In support of that view the court quoted portions of the opinion in the case cited, including the following: Mr. Justice Van Devanter delivered the opinion of the court: This is a companion case to Minneap-merly decided, nor was the former decree olis, St. P. & S. Ste. M. R. Co. v. Washburn Lignite Coal Co. just decided [254 U. S. 370, ante, 310, 41 Sup. Ct. Rep.140], and was brought by a shipper to recover charges exacted in excess of the stat. utory rate. The shipments were made prior to the first judgment in the injunction suit, when the carrier was refusing to give effect to the schedule; and the excess was paid under protest [377] and because the carrier would not deliver the coal on payment of the statutory rate. In the trial court there was a judgment against the shipper, and this was reversed by the supreme court, with a direction to award the shipper On necessity of color of merit in Federal question to sustain writ of error to state court-see note to Offield v. New York, N. H. & H. R. Co. 51 L. ed. U. S. 231. As to error to state courts in cases presenting merely abstract or moot questions-see note to Campbell v. California, 50 L. ed. U. S. 382. "In a rate case, where an assertion of confiscation was [378] not upheld because of the weakness of the facts supporting it, the practice came to be that the decree rejecting the claim and giving effect to the statute was, where it was deemed the situation justified it, qualified as 'without prejudice,' not to leave open the controversy as to the period with which the decree dealt, and which it concluded, but in order not to prejudice rights of property in the future, if, from future operation and changed conditions arising in such future, it resulted that there was confiscation. And the same limitation arising from a solicitude not to unduly restrain in the future the operation of shown by the petition, there is nothing to bank the law came to be applied where the 2. An involuntary bankrupt does not, 35 Sup. Ct. Rep. 429, Ann. Cas. 1916A. 1] from that which had been previously reached." When we have in mind the question which the supreme court was called on to decide, and did decide, and the fact that the question was no longer an open one in this court, as is shown by our opinion in the Missouri Case, it is apparent that this writ of error is without any adequate basis. Writ of error dismissed. [379] JULES W. ARNDSTEIN, Appt., V. THOMAS D. McCARTHY, United States (See S. C. Reporter's ed. 379, 380.) Appeal judgment ceedings below. subsequent pro1. The reversal of a judgment by which a petition for habeas corpus was held insufficient at a hearing as upon demurrer, and the remanding of the cause for further proceedings in accordance with the opinion, only requires the trial court to accept the Supreme Court's decision upon the point of law decided, to issue the writ, and then to proceed as usual. If the petition does not correctly set forth the facts, or if proper reasons exist for holding the prisoner, not Note. On sufficiency of statutory immunity to satisfy constitutional guaranty against self-incrimination-see note to Arndstein v. McCarthy, ante, 138. As to who is within protection of provision of Bankrupt Act as to use in criminal proceeding of testimony given by bankrupt-see note to People v. Lay, L.R.A.1917B, 614. Sup. Ct. 1908.] [No. 575.] cided December 20, 1920. De APPEAL from the District Court of the United States for the Southern District of New York to review the denial of an application for a writ of habeas corpus. On petition of trustee in bankruptcy for leave to intervene, for certification of the entire record, and for reargument. Denied. See ante, p. 138. The facts are stated in the opinion. Mr. Charles Henry Butler for the motion, in behalf of counsel, Messrs. Saul S. Myers, Francis M. Scott, and Walter H. Pollak. No brief was filed contra. Memorandum for the court by Mr. Justice McReynolds: The trustee in bankruptcy has filed an earnest petition asking that we (a) allow him to intervene, (b) permit reargument of the appeal, (c) direct that the entire record be certified to this court, (d) recall the mandate, (e) stay all proceedings in respect thereto, and (f) grant further and proper relief. The court below heard the cause as upon demurrer, and held the petition for habeas corpus insufficient. Disagreeing with the result, we concluded that the bankrupt did not waive his constitutional privilege merely by filing sworn schedules, that the petition was adequate, and that the writ should have issued. The mandate only requires the trial court to accept our decision upon the point of law, to issue the writ, and then to proceed as usual. If the petition does not correctly set forth the facts, or if proper reasons exist for holding the prisoner, not shown by the petition, neither our opinion nor mandate prevents them from being set up in the return and duly considered. [380] Alleged defects in the record appear to be based upon a misconcep- | property of the debtor within the borders tion. Our conclusion concerning the constitutional question presented, we think, is so plainly correct that a reargument would be unprofitable. The petition is denied. priority as creditor receivership. - Federal 2. The common-law priority of the state of New York over unsecured creditors in payment of all the debts due the state out of the assets of the debtor extends to all Note. As to state decisions and laws as rules of decision in Federal courtssee notes to Clark v. Graham, 5 L. ed. U. S. 334; Elmendorf v. Taylor, 6 L. ed. U. S. 290; Jackson ex dem. St. John v. Chew, 6 L. ed. U. S. 583; Mitchell v. Burlington, 18 L. ed. U. S. 351; United States ex rel. Butz v. Muscatine, 19 L. ed. U. S. 490; Forepaugh v. Delaware, L. & W. R. Co. 5 L.R.A. 508; and Snare & T. Co. v. Friedman, 40 L.R.A. As to common-law priority of state or United States in payment from assets of debtor-see notes to State v. First State Bank, L.R.A.1918A, 398; Re Carnegie Trust Co. 46 L.R.A. (N.S.) 260; State v. Williams, 1 L.R.A. (N.S.) 255; and State v. Foster, 29 L.R.A. 226. On priority of claims in hands of receiver over recorded lien-see notes to First Nat. Bank v. Cook, 2 L.R.A. (N.S.) 1013, and Citizens' Trust Co. v. National Equipment & Supply Co. 41 L.R.A.(N.S.) 695. of the state, whether the debtor be a resi- [For other cases, see Receivers, III. in Digest Sup. Ct. 1908.] remedy. State priority as creditor 4. Where the common-law prerogative right of the state of New York to priority over unsecured creditors in payment of all the debts due the state out of the assets of the debtor could not be enforced by levy and seizure because of the appointment of a receiver by a Federal court within the state, an application to that court for payment of the debt due was the appropriate remedy. State · priority as creditor receivership. Federal 5. The common-law prerogative right of the state of New York to priority over other unsecured creditors in payment of debts due the state out of the general assets of the debtor in the custody of a receiver appointed by a Federal court within the state extends to a claim for license taxes imposed upon a foreign corporation for the privilege of doing business within the state, although the state may not have acquired lien on such assets at the time they passed into the receiver's hands. a Federal courts-enforcing common-law right. 6. The fact that the prerogative right of the state of New York to priority over unsecured creditors in payment of all the debts due the state out of the assets of the debtor rests upon the common law, independently of any statute, does not affect the right of enforcement in the Federal courts. see Courts, VII. c, 1, in Di[For other cases gest Sup. Ct. 1908.] Messrs. A. S. Gilbert, Francis Gilbert, | a preference in payment of the claim and William J. Hughes submitted the for taxes by reason of its sovereign cause for petitioner: prerogative. The state did not acquire any lien in respect of the license fees before the assets passed into the hands of the receivers. 2 Cooley, Taxn. p. 865; Meriwether v. Garrett, 102 U. S. 472, 26 L. ed. 197. The question is one in which the Federal court was free to exercise its independent judgment. Burgess v. Seligman, 107 U. S. 20, 27 L. ed. 359, 2 Sup. Ct. Rep. 10; Kuhn v. Fairmont Coal Co. 215 U. S. 349, 54 L. ed. 228, 30 Sup. Ct. Rep. 140. As the district court and the court below were bound to exercise and give effect to their own judgment, it became the duty of the court below to follow the decision of this court in Richmond v. Bird, 249 U. S. 174, 54 L. ed. 228, 30 Sup. Ct. Rep. 140; Alabama v. Martin, 167 C. C. A. 661, 256 Fed. 313. The sovereign prerogative of the state did not extend to the assets in the hands of the receiver. Re Carnegie Trust Co. 206 N. Y. 390, 46 L.R.A. (N.S.) 260, 99 N. E. 1096; Fulton Light, Heat & P. Co. v. State, 200 N. Y. 412, 37 L.R.A.(N.S.) 307, 94 N. E. 199; People ex rel. New York Loan & Improv. Co. v. Roberts, 157 N. Y. 70, 51 N. E. 437. The rights of the state of New York, arising under the law which created the tax in question, are not to be enlarged by construction. Gould v. Gould, 245 U. S. 151, 153, 62 L. ed. 211, 213, 38 Sup. Ct. Rep. 53; People ex rel. Mutual Trust Co. v. Miller, 177 N. Y. 51, 69 N. E. 124. Messrs. Cortland A. Johnson and Robert P. Beyer submitted the cause for respondents: The license fees with respect to which a preference was allowed were tax obligations. Heerwagen v. Crosstown Street R. Co. 90 App. Div. 275, 86 N. Y. Supp. 218; Maine v. Grand Trunk R. Co. 142 U. S. 217, 35 L. ed. 994, 3 Inters. Com. Rep. 807, 12 Sup. Ct. Rep. 121, 163; People ex rel. Elliott-Fisher Co. v. Sohmer, 148 App. Div. 514, 132 N. Y. Supp. 789, affirmed in 206 N. Y. 634, 99 N. E. 1115; People ex rel. United States Aluminium Printing Plate Co. v. Knight, 174 N. Y. 475, 63 L.R.A. 87, 67 N. E. 65; Home Ins. Co. v. New York, 134 U. S. 594, 33 L. ed. 1025, 10 Sup. Ct. Rep. 593. The state of New York is entitled to Re Carnegie Trust Co. 151 App. Div. 606, 136 N. Y. Supp. 466, 206 N. Y. 390, 46 L.R.A. (N.S.) 260, 99 N. E. 1096; Re Niederstein, 154 App. Div. 238, 138 N. Y. Supp. 952; Re Wesley, 156 App. Div. 403, 141 N. Y. Supp. 1031; People v. Metropolitan Surety Co. 158 App. Div. 647, 144 N. Y. Supp. 201; Mixter v. Mohawk Clothing Co. 155 N. Y. Supp. 647. The right of preference of the state of New York is in the nature of a lien attaching to property within its territorial jurisdiction. Giles v. Grover, 9 Bing. 128, 131 Eng. Reprint, 563, 2 Moore & S. 197, 1 Clark & F. 72, 6 Eng. Reprint, 843, 6 Bligh, N. R. 277, 5 Eng. Reprint, 598, 11 Eng. Rul. Cas. 550; State use of Phillips v. Rowse, 49 Mo. 592; Com. v. McMillen, 1 Ky. L. Rep. 270; Seay v. Bank of Rome, 66 Ga. 609; Robinson v. Bank of Darien, 18 Ga. 65; Booth v. State, 134 Ga. 163, 67 S. E. 803; Orem v. Wrightson, 51 Md. 34, 34 Am. Rep. 286; State v. Bank of Maryland, 6 Gill & J. 205, 26 Am. Dec. 561; State v. Bell, 64 Minn. 400, 67 N. W. 212; State v. Northern Trust Co. 70 Minn. 393, 73 N. W. 151; Greeley v. Provident Sav. Bank, 98 Mo. 459, 11 S. W. 980; Insurance Comr. v. Commercial Mut. Ins. Co. 20 R. I. 7, 36 Atl. 930; State v. Shelton, 47 Conn. 400; United States Fidelity & G. Co. v. Rainey, 120 Tenn. 357, 113 S. W. 397; State v. Bruce, 17 Idaho, 1, L.R.A. 1916C, 1, 134 Am. St. Rep. 245, 102 Pac. 831; Bent v. Hubbardston, 138 Mass. 99; State v. Thum, 6 Idaho, 323, 55 Pac. 858; State v. Midland State Bank, 52 Neb. 1, 66 Am. St. Rep. 484, 71 N. W. 1011; State v. Foster, 5 Wyo. 199, 29 L.R.A. 226, 63 Am. St. Rep. 47, 38 Pac. 926; Myers v. Board of Education, 51 Kan. 87, 37 Am. St. Rep. 263; Independent Dist. v. King, 80 Iowa, 497, 45 N. W. 908; Davenport Plow Co. v. Lamp, 80 Iowa, 722, 20 Am. St. Rep. 442, 45 N. W. 1049; Re Atlas Iron Constr. Co. 19 App. Div. 415, 46 N. Y. Supp. 467. The Federal courts will recognize and enforce the state right of preference in respect to property formerly within the territorial limits of the state asserting said right. United States v. Herron, 20 Wall. 251, 22 L. ed. 275; Re Baker, 96 Fed. 954; Re Abramson, 127 C. C. A. 462, 210 Fed. 878; Re Moore, 111 Fed. 145; American Bonding Co. v. Reynolds, 203 |