*64

Courts-jurisdiction of circuit court of *Mr. Justice Holmes delivered the opin appeals - mandamus to enforce man-ion of the court: date of Supreme Court.

2. A circuit court of appeals to which is addressed the mandate of the Supreme Court directing the remanding of the cause to the district court for further proceedings in conformity with the opinion upon which the mandate was based has no jurisdiction to compel the district court, by mandamus, to modify the decree entered in supposed compliance with such mandate, to conform to the view of the Supreme Court's opinion entertained by the circuit court of appeals. Appeal-compliance with mandate.

3. A decree of a Federal district court

These cases arise out of the proceedings subsequent to the decision of this court in First Nat. Bank v. Chicago Title & T. Co. 198 U. S. 280, 49 L. ed. 1051, 25 Sup. Ct. Rep. 693. In that case the trust company, as receiver, subsequently trustee in bankruptcy, filed a petition in the district court, alleging pos session of certain property and asking for directions in respect of a sale. The district court found that a storage company had the possession and right of possession, but nevertheless retained jurisdiction, and, a sale having been had by consent, made a sum

for the transfer to certain adverse claimants of a part of the proceeds of a sale of prop-mary order for transfer to the petitioner of erty not in possession of the trustee in bankruptcy, without prejudice to the rights of such trustee, "if this court shall so authorize," to litigate in any proper court the question of his right to recover such funds as a part of the bankrupt's general estate, is a sufficient compliance with the mandate of the Federal Supreme Court, which had directed the remanding of the case for further proceedings in conformity with its opinion, in which it was stated that the district court's original decree should have been "without prejudice to the right of respondents to litigate in a proper court."

part of the proceeds of the sale. An appeal was taken to the circuit court of appeals, and that court sustained the jurisdiction of the district court. On certiorari this court held that the circuit court of appeals had no jurisdiction of the appeal, and that the district court, having found that the receiver and trustee was not in possession of the fund, had no jurisdiction to proceed further. It thereupon rendered a judgment and issued a mandate reversing the decree of the circuit court of appeals, and directing that court to dismiss the appeal and to remand the case to the district court for further proceedings in conformity with the opinion upon which the mandate was based.

The

The circuit court of appeals thereupon dismissed the appeal and remanded the cause The for further proceedings as directed. opinion to which the proceedings of the district court were to conform concluded with these words: "In our*view the district court should have declined upon its findings to retain jurisdiction, and in that event the decrees for the return of the money should have been without prejudice to the right of respondents to litigate in a proper court, which modification we direct to be made." district court made a decree "without prejudice to the rights of the Chicago Title & Trust Company, the trustee herein, if this court shall so authorize, to litigate in any proper court the question of the right of said trustee to recover said funds as a part of the bankrupt's general estate." The trus tee complained of the form of this decree, especially because of the insertion of the words "if this court shall so authorize," and moved in this court for leave to file a peti

See same case below in No. 38, 77 C. C. A. tion for mandamus requiring the district 408, 146 Fed. 742.

The facts are stated in the opinion. Messrs. Henry S. Robbins, Wallace Heckman, and James G. Elsdon for petitioners and plaintiffs in error.

Messrs. Newton Wyeth and Joseph E. Paden for respondents and defendants in

error.

judge to modify it, but leave was denied. 200 U. S. 613, 50 L. ed. 620, 26 Sup. Ct. Rep. 753.

The trustee next made a similar applica tion to the circuit court of appeals, whereupon that court granted it and issued a peremptory writ requiring modifications to be made. 77 C. C. A. 408, 146 Fed. 742. The

court of appeals. The suggestion of the need of speedy relief seems to have counted for something in the making of the order appealed from, and the denial of a mandamus by this court was treated as an intimation that the final direction to the district court was to be regarded as proceeding from the circuit court of appeals. Such was not the import of the action of this court. The cir

petitioners and plaintiffs in error, claiming | authority of this court, not of the circuit an interest in the fund, then applied for leave to intervene for the purpose of prosecuting a writ of error; their application was allowed, and leave was granted them to sue out the writ, the order reciting that the district judge was present by counsel, but declined to sue out or join in the same. On the same day the circuit court of appeals refused to make the writ act as a supersedeas, and on the next day the district judge en-cuit court of appeals had no jurisdiction in tered a decree conforming to the mandate of the circuit court of appeals. The present proceedings are brought for the purpose of reversing the action of the circuit court of appeals and of reinstating the former decree of the district court.

the matter, and the denial of a mandamus by this court did not confer or declare jurisdiction to grant what this court denied. It follows that the judgment of the circuit court of appeals must be reversed.

As the judgment reversed has been acted There is a motion to dismiss the writ of upon by the district court it becomes neceserror on the grounds that the judge, who sary to consider whether the former or the was the only party to the mandate alleged present decree of the district court was the to be erroneous, did not sue out the writ, proper one to enter. The present one might but that, on the contrary, he has obeyed the be right not withstanding the want of jurisorder, and that the plaintiffs in error are diction on the part of the higher court to not privy to the judgment. We deem it a order it to be made. We need not determine sufficient answer to this motion to say that whether the language quoted from our for-* it appears on the record that the judge de- mer opinion was improvidently used. It is clined to join (Masterson v. Herndon [Mas- enough to say that the opinion did not purterson v. Howard] 10 Wall. 416, 19 L. ed. port to fix the words of the new decree. It 953; Hardee v. Wilson, 146 U. S. 179, 36 L. merely gave a general direction which was ed. 933, 13 Sup. Ct. Rep. 39), that he has no to be carried out in a form to be settled by personal interest in the judgment (Davis v. the district court. It declared, perhaps unMercantile Trust Co. 152 U. S. 590, 593, 38 necessarily, that the decree was to be withL. ed. 563, 564, 14 Sup. Ct. Rep. 693), out prejudice to whatever right the respondand that the plaintiffs have such an interest, ents might have to litigate in a proper court, and were made parties for the purpose of not that they were entitled to litigate, or protecting their rights. The fact that the that the authority given by the bankruptcy judge obeyed the order in force against him law, §§ 2 (7), 11 c, 47 (2),* to the district cannot prejudice the position of the plain-court to control such litigation, was supertiffs. They have the same interest in hav-seded. We are of opinion that the decree ing the former decree of the district court first entered by the district court complied reinstated that they had in having it stand. with the language of the opinion, and that We are of opinion that the order of the the subsequent decree, having been entered circuit court of appeals was wrong. The only in obedience to an unwarranted judgmandate of this court was addressed to it ment, should be set aside. Re Potts, 166 alone, it is true, in point of form. It is cus-U. S. 263, 41 L. ed. 994, 17 Sup. Ct. Rep. tomary to issue but a single mandate. But 520; Ex parte Dubuque & P. R. Co. (Duthe directions as to the further proceedings buque & P. R. Co. v. Litchfield) 1 Wall. 69, of the district court were not an order to the 17 L. ed. 514. circuit court of appeals to issue an order to the district court. They were directions which the circuit court of appeals was simply to communicate to the district court, and which the district court was to follow on the

Judgment of the Circuit Court of Appeals reversed.

Mandamus to go to the District Court to set aside its decree entered in pursuance of said judgment.

Act July 1, 1898, c. 541, 30 Stat. 546, 549, 557 [U. S. Comp. St. 1901, pp. 3421, 3426, 3438].

INTERSTATE CONSOLIDATED STREET | pressly exempted by the law transported RAILWAY COMPANY, Plff. in Err.,

Argued October 15, 16, 1907. Decided No- the fact that the statute in question was in

force when the plaintiff in error took its charter, and confines itself to that ground.

N ERROR to the Superior Court of the The section of the Revised Laws (chap. 112,

IN to the Court of the section of the Revised Laws 1996;

viction of a street railway company, on appeal from the First District Court of Bristol County, in that state, for refusing to transport school children at a reduced rate, exceptions having been heard by the Su-1901. Stat. 1901, chap. 159. By the latter preme Judicial Court and overruled. Af- act the plaintiff in error was "subject to all firmed. the duties, liabilities, and restrictions set

See same case below, 187 Mass. 436, 73 forth in all general laws now or hereafter N. E. 530.

8 Mr. Justice Holmes delivered the opin- tion, whether such requirements could be

*Ed. Note. For cases in point, see vol. 9, Cent. Dig. Carriers, § 7.

98

to fall into the Charybdis of impairing the obligation of a contract with the elevated road, although that objection might, perhaps, be held not to be open to the plaintiff in error here (New York ex rel. Hatch v. Reardon, 204 U. S. 152, 160, 51 L. ed. 415, 422, 27 Sup. Ct. Rep. 188).

be, as the force given to it by reference and| E. 916), it might be thought by this court incorporation would be derived wholly from the charter. The document, therefore, might as well be an unconstitutional as a constitutional law. See Com. v. Melville, 160 Mass. 307, 308, 35 N. E. 863. But the contents of a document may be incorporated or adopted as well by generic as by specific reference, if only the purport of the adopting statute is clear. Corry v. Baltimore, 196 U. S. 466, 477, 49 L. ed. 556, 562, 25 Sup. Ct. Rep. 297. See Purdy v. Erie R. Co. 162 N. Y. 42, 48 L.R.A. 669, 56 N. E. 508.

Speaking for myself alone, I think that there are considerations on the other side from the foregoing argument that make it unsafe not to discuss the validity of the regulation apart from the supposition that the plaintiff in error has accepted it. See W. W. Cargill Co. v. Minnesota, 180 U. S. 452, 468, 45 L. ed. 619, 626, 21 Sup. Ct. Rep. 423. Therefore I proceed to state my grounds for thinking the statute constitutional irrespective of any disabilities to object to its terms.

The objection that seems to me, as it seemed to the court below, most serious, is that the statute unjustifiably appropriates the property of the plaintiff in error. It is hard to say that street railway companies are not subjected to a loss. The conventional fare of 5 cents presumably is not more than a reasonable fare, and it is at least questionable whether street railway companies would be permitted to increase it on the ground of this burden. It is assumed by the statute in question that the ordinary fare may be charged for these children or some of them when not going to or from school. Whatever the fare, the statute, fairly construed, means that children going to or from school must be carried for half the sum that would be reasonable com

only to the business aspect of the question. Moreover, while it may be true that in some cases rates or fares may be reduced to an unprofitable point in view of the business as a whole or upon special considerations (Minneapolis & St. L. R. Co. v. Minnesota, 186 U. S. 257, 267, 46 L. ed. 1151, 1157, 22 Sup. Ct. Rep. 900), it is not enough to justify a general law like this, that the companies concerned still may be able to make a profit from other sources, for all that appears (Atlantic Coast Line R. Co. v. North Carolina Corp. Commission, 206 U. S. 1, 24, 25, 51 L. ed. 933, 944, 945, 27 Sup. Ct. Rep. 585).

The discrimination alleged is the express exception from the act of 1900 of the Bos-pensation for their carriage if we looked ton Elevated Railway Company and the railways then owned, leased, or operated by it. But, in the first place, this was a legislative adjudication concerning a specific road, as in Wight v. Davidson, 181 U. S. 371, 45 L. ed. 900, 21 Sup. Ct. Rep. 616, not a general prospective classification as in Martin v. District of Columbia, 205 U. S. 135, 138, 51 L. ed. 743, 744, 27 Sup. Ct. Rep. 440. A general law must be judged by public facts, but a specific adjudication may depend upon many things not judicially known. Therefore the law must be sustained on this point unless the facts of fered in evidence clearly show that the exception cannot be upheld. But the local facts are not before us, and it follows that we cannot say that the legislature could not have been justified in thus limiting its action. Covington & L. Turnp. Road Co. v. Sandford, 164 U. S. 578, 597, 598, 41 L. ed. 560, 566, 567, 17 Sup. Ct. Rep. 198. In the next place, if the only ground were that the charter of the elevated railway contained a contract against the imposition of such a requirement, it would be attributing to the 14th Amendment an excessively nice operation to say that the immunity of a single corporation prevented the passage of an otherwise desirable and wholesome law. It is unnecessary to consider what would be the effect on the statute by construction in Massachusetts if the exception could not be upheld. For, if in order to avoid the Scylla of unjustifiable class legislation, the law were read as universal (see Dunbar v. Boston & P. R. Corp. 181 Mass. 383, 386, 63 N.

Notwithstanding the foregoing considerations I hesitatingly agree with the state court that the requirement may be justified under what commonly is called the police power. The obverse way of stating this power in the sense in which I am using the phrase would be that constitutional rights, like others,*are matters of degree, and that the great constitutional provisions for the protection of property are not to be pushed to a logical extreme, but must be taken to permit the infliction of some fractional and relatively small losses without compensation, for some, at least, of the purposes of wholesome legislation. Martin v. District of Columbia, 205 U. S. 135, 139, 51 L. ed. 743, 744, 27 Sup. Ct. Rep. 440; Camfield v. United States, 167 U. S. 518, 524, 42 L. ed. 260, 262, 17 Sup. Ct. Rep. 864.

If the 14th Amendment is not to be a greater hamper upon the established practices of the states in common with other gov.

ernments than I think was intended, they must be allowed a certain latitude in the minor adjustments of life, even though by their action the burdens of a part. of the community are somewhat increased. The traditions and habits of centuries were not intended to be overthrown when that Amendment was passed.

Education is one of the purposes for which what is called the police power may be exercised. Barbier v. Connolly, 113 U. S. 27, 31, 28 L. ed. 923, 924, 5 Sup. Ct. Rep. 357. Massachusetts always has recognized it as one of the first objects of public care. It does not follow that it would be equally in accord with the conceptions at the base of our constitutional law to confer equal favors upon doctors, or working men, or people who could afford to buy 1000-mile tickets.

Structural habits count for as much as

Mr. Justice Harlan is of opinion that the constitutionality of the act of 1900 is necessarily involved in the determination of this case. He thinks the act is not liable to the objection that it denies to the railway company the equal protection of the laws. Nor does he think that it can be held, upon any showing made by this record, to be unconstitutional as depriving the plaintiff in error of its property without due process of law. Upon these grounds alone, and independent of any other question discussed, he joins in a judgment of affirmance. Judgment affirmed.

Mr. Justice Moody, having been of counsel, did not sit in this case.

in Err.,

v.

(207 T. S. 73)

A. L. SEEGERS and W. B. Seegers, Doing
Business as Seegers Bros.

Constitutional law-equal protection
of the laws-regulation of common
carrier.

logic in drawing the line. And, to return SEABOARD AIR LINE RAILWAY, Piff. to taking of property, the aspect in which I am considering the case, general taxation to maintain public schools is an appropriation of property to a use in which the taxpayer may have no private interest, and, it may be, against his will. It has been condemned by some theorists on that ground. Yet no one denies its constitutionality. People are accustomed to it and accept it without doubt. The present requirement is not different in fundamental principle, although the tax is paid in kind and falls only on the class capable of paying that kind of tax, -a class of quasi public corporations specially subject to legislative control.

Common carriers are not denied the equal protection guaranteed by U. S. Const., 14th Amend., by the provisions of S. C. act Februjust and pay every claim for loss or damage ary 23, 1903, p. 81, § 2. requiring them to adto an intrastate shipment within forty days after the filing of a claim, under penalty of $50 for each failure or refusal, where there can be no award of a penalty under the statute unless there is a recovery of the full amount claimed.*

Thus the question narrows itself to the magnitude of the burden imposed,-to whether the tax is so great as to exceed the limits of the police power. Looking at the law without regard to its special operation Argued October 16, 1907. Decided Novem

I should hesitate to assume that its total effect, direct and indirect, upon the roads

[No. 15.]

ber 4, 1907.

N ERROR to the Supreme Court of the

outside of Boston, amounted to a more seri- I State of South Carolina to review a

ous burden than a change in the law of nuisance, for example, might be. See further, Williams v. Parker, 188 U. S. 491, 47 L. ed. 559, 23 Sup. Ct. Rep. 440. Turning to the specific effect, the offer of proof was cautious. It was simply that a "consider able percentage" of the passengers carried

by the company consisted of pupils of the public schools. This might be true without the burden becoming serious. I am not prepared to overrule the decision of the legislature and of the highest court of Massachusetts, that the requirement is reasonable under the conditions existing there, upon evidence that goes no higher than this. It is not enough that a statute goes to the verge of constitutional power. We must be able to see clearly that it goes beyond that power. In case of real doubt a law must be sustained.

*Mr. Justice Brewer delivered the opinion of the court:

The question in this case is the consti

*Ed. Note.-For eases in point, see vol. 10. Cent. Dig. Constitutional Law. 3 702. 703.