Fed. 802. Mr. C. J. St. John, of Bristol, Tenn., | for a writ of certiorari to the United States Cirfor appellants. cuit Court of Appeals for the Second Circuit denied.

(251 U. S. 559)

No. 664. JEONG QUEY HOW, petitioner, v. Edward WHITE, as Commissioner of Immigration at the port of San Francisco. Jan. 19.

PER CURIAM. Dismissed for want of jurisdiction upon the authority of Courtney v. Pradt, 196 U. S. 89, 91, 25 Sup. Ct. 208. 49 L Ed. 398; Farrugia v. Philadelphia & Reading Ry. Co., 233 U. S. 352, 353, 34 Sup. Ct. 591, 58 L. Ed. 996; Louisville & Nashville Ry. Co v. Western Union Tel. Co., 234 U. S. 369, 371-1920. For opinion below, see 258 Fed. 618, 170 372, 34 Sup. Ct. 810, 58 L. Ed. 1356; Male v. Atchison, Topeka & Santa Fé Ry. Co., 240 U. S. 97, 99, 36 Sup. Ct. 351, 60 L. Ed. 544.

No. 660. The AMERICAN GUARANTY

C. C. A. 72. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit denied.

(251 U. S. 543)

No. Harmon P. McKNIGHT v. The UNITED STATES. Jan. 20, 1920. Application for leave to proceed in forma pauperis for the purposes of a petition for certiorari to and an appeal from the District Court of the United States for the District of Massachusetts.

PER CURIAM. The prayer to be allowed to proceed in forma pauperis for the purpose of an application for certiorari to review the judgment below, as well as for the purpose of an appeal asked to review a refusal to release on habeas corpus, made to the Chief Justice and by him submitted to the court for its action is hereby denied.

(251 U. S. 566)

No. 174. SEABOARD AIR LINE RAIL

COMPANY, petitioner, v. AMERICAN FI-WAY COMPANY, petitioner, v. Mrs. Lessie DELITY COMPANY. Jan. 19, 1920. For opinion below, see 260 Fed. 897. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied.

(251 U. S. 559)

No. 663. MORRIS & CUMINGS DREDGING COMPANY, petitioner, v. CORNELL STEAMBOAT COMPANY. Jan. 19, 1920. For opinion below, see 261 Fed. 897. Petition

HORTON, administratrix, etc. Jan. 21, 1920. On writ of certiorari to the Supreme Court of the State of North Carolina. For opinion below, see 175 N. C. 472, 95 S. E. 883. See, also, 248 U. S. 553, 39 Sup. Ct. 8, 63 L. Ed. 418; 39 Sup. Ct. 21, 64 L. Ed. Mr. Thaddeus A. Adams, of Charlotte, N. C., for petitioner. Mr. Robert W. Winston, of Raleigh, N. C., for respondent. Dismissed with costs, on motion of counsel for the petitioner.

(40 Sup. Ct.)

(Argued Jan. 13, 1920. Decided Jan. 26, 1920.) in amity with and subject to the jurisdiction

*Mr. Harry Peyton, of Washington, D. C., was reinstated and passed to judgment, his for appellant.

claim having been dismissed at an earlier Mr. Assistant Attorney General Davis, for date because he was not a citizen at the time. appellees. But we are of opinion that the judgment of the Court of Claims was plainly right. The

Mr. Justice HOLMES delivered the opin- emphasis and primary intent, at least, of the ion of the Court.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(251 U. S. 385)

tioned, they both were arrested at their SILVERTHORNE LUMBER CO., Inc., et al. homes early in the morning of February 25,

v. UNITED STATES.

and were detained in custody a number of hours. While they were thus detained rep

(Argued Dec. 12, 1919. Decided Jan. 26, 1920.) resentatives of the Department of Justice

No. 358.

1. SEARCHES AND SEIZURES 7-KNOWLEDGE GAINED BY GOVERNMENT'S WRONG MAY NOT

BE USED.

Knowledge gained by government's wrongful search and seizure may not, on return by order of the court, of the original articles, be used to call on the owners by subpoenas to produce them; so that they may not be punished for disobeying an order to comply with the

subpœnas.

and the United States marshal without a shadow of authority went to the office of their company and made a clean sweep of all the books, papers and documents found there. All the employés were taken or directed to go to the office of the District Attorney of the United States to which also the books, &c., were taken at once. An application was made as soon as might be to the District Court for a return of what thus had been taken unlawfully. It was opposed

*391

2. SEARCHES AND SEIZURES 7-CORPORA- by the District Attorney so far as he had

TION TO BE PROTECTED.

The rights of a corporation against unlawful search and seizure are to be protected, even if the same result might be achieved by the government in a lawful way.

found evidence against the plaintiffs in error, and it was stated that the evidence so obtained was before the grand jury. Color had been given by the District Attorney to the approach of those concerned in the act

The Chief Justice and Mr. Justice Pitney, by an invalid subpoena for certain documents dissenting.

relating to the charge in the indictment then on file. Thus the case is not that of knowl

In Error to the District Court of the Unit-edge acquired through the wrongful act of a ed States for the Western District of New stranger, but it must be assumed that the York.

Government planned or at all events ratified the whole performance. Photographs and copies of material papers were made and a new indictment was framed based upon the knowledge thus obtained. The District Court ordered a return of the originals but impounded the photographs and copies. Subpœnas to produce the originals then were

Judgment for contempt was rendered against the Silverthorne Lumber Company, Incorporated, and another for disobedience of an order to comply with subpoenas to produce papers in a prosecution by the United States, and they bring error. Reversed. Messrs. Frederic D. McKenney and Myer Cohen, both of Washington, D. C., and William D. Guthrie, of New York City, for plain-plied with, although it had found that all

tiffs in error.

Mr. Assistant Attorney General Stewart, for the United States.

⚫390

served and on the refusal of the plaintiff's in error to produce them the Court made an order that the subpoenas should be com

the papers had been seized in violation of the parties' constitutional rights. The refusal to obey this order is the contempt alleged. The Government now, while in form repudiating and condemning the illegal sei

*Mr. Justice HOLMES delivered the opin- zure, seeks to maintain its right to avail ion of the Court.

This is a writ of error brought to reverse a judgment of the District Court fining the Silverthorne Lumber Company two hundred and fifty dollars for contempt of court and ordering Frederick W. Silverthorne to be imprisoned until he should purge himself of a similar contempt. The contempt in question was a refusal to obey subpoenas and an order of Court to produce books and documents of the company before the grand jury to be used in regard to alleged violation of the statutes of the United States by the said Silverthorne and his father. One ground of the refusal was that the order of the Court infringed the rights of the parties under the Fourth Amendment of the Con

itself of the knowledge obtained by that means which otherwise it would not have had.

[1, 2] The proposition could not be presented more nakedly. It is that although of course its seizure was an outrage which the Government now regrets, it may study the papers before it returns them, copy them, and then may use the knowledge that it has gained to call upon the owners in a moreregular form to produce them; that the protection of the Constitution covers the physical possession but not any advantages that the Government can gain over the object of its pursuit by doing the forbidden act. Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, to be sure, had The facts are simple. An indictment up-established that laying the papers directly on a single specific charge having been brought against the two Silverthornes men- before the grand jury was *unwarranted, but

stitution of the United States.

*392

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(40 Sup.Ct.)

it is taken to mean only that two steps are required instead of one. In our opinion such is not the law. It reduces the Fourth Amendment to a form of words. 232 U. S.

393, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A.

1915B, 834, Ann. Cas. 1915C, 1177. The es

sence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible.

public an interest in the use of the railroad, it may withdraw its grant by discontinuing the use when that use can be kept up only at a loss.

3. COURTS 107-RECITAL OF OPINION NOT

A FINDING OF FACT.

4. CONSTITUTIONAL LAW 297-State Can

NOT AUTHORIZE CONSTITUTIONALLY RAILROAD

OPERATION AT LOSS.

Whatever may be the forms required by local law of a company desiring to discontinue its railroad business, it cannot authorize the Railroad Commission or the court to do what the federal Constitution forbids, which is the effect of an order of the one and an injunction of the other compelling it to operate, though at a loss.

Railroad Commission requiring plaintiff to opRecital of opinion after sustaining order of erate its railroad, on the ground that plaintiff's other business of lumbering was successful enough to stand a loss on the road, that the commission's order calls on plaintiff "to submit a new schedule for transportation which may be * If knowledge of them is operated * at a profit for plaintiff," cangained from an independent source they may not be considered as a finding that such a schedbe proved like any others, but the knowledge ule can be submitted; there being no evidence gained by the Government's own wrong can- warranting such a finding. not be used by it in the way proposed. The numerous decisions, like Adams v. New York, 192 U. S. 585, 24 Sup. Ct. 372, 48 L. Ed. 575, holding that a collateral inquiry into the mode in which evidence has been got will not be allowed when the question is raised for the first time at the trial, are no authority in the present proceeding, as is explained in Weeks v. United States, 232 U. S. 383, 394, 395, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177. Whether some of those decisions have gone too far or have given wrong reasons it is unnecessary to inquire; the principle applicable to the present case seems to us plain. It is stated satisfactorily in Flagg v. United States, 233 Fed. 481, 483, 147 C. C. A. 367. In Linn v. United States, 251 Fed. 476, 480, 163 C. C. A. 470, it was thought that a different rule applied to a corporation, on the ground that it was not privileged from producing its books and papers. But the rights of a corporation against unlawful search and seizure are to be protected even if the same result might have been achieved in a lawful way. Judgment reversed.

The CHIEF JUSTICE and Mr. Justice PITNEY dissent.

(251 U. S. 396)

BROOKS-SCANLON CO. v. RAILROAD
COMMISSION OF LOUISIANA.

On Writ of Certiorari to the Supreme Court of the State of Louisiana.

ana.

Suit by the Brooks-Scanlon Company against the Railroad Commission of LouisiJudgments adverse to defendant were reversed by the Supreme Court of Louisiana (144 La. 1086, 81 South. 727), and plaintiff brings certiorari. Reversed.

Messrs. J. Blanc Monroe, of New Orleans, La., Robert R. Reid, of Hammond, La., and Monte M. Lemann, of New Orleans, La., for petitioner.

Mr. Wylie M. Barrow, of Baton Rouge, La., for respondent.

397

*Mr. Justice HOLMES delivered the opinion of the Court.

This is a suit by the Brooks-Scanlon Company, a Minnesota corporation organized to manufacture and deal in lumber and to carry on other incidental business, against the Railroad Commission of Louisiana. It seeks

(Argued Jan. 6, 1920. Decided Feb. 2, 1920.) to set aside an order (Number 2228) of the

No. 386.

Commission requiring the plaintiff either directly or through arrangements made with

1. RAILROADS 57 OPERATION AT LOSS the Kentwood and Eastern Railway Com

CANNOT BE REQUIRED.

A company cannot be compelled to operate its railroad where it cannot do so without loss therefrom, though its other business of lumbering be sufficiently remunerative to absorb the loss and make returns on its entire business.

pany, to operate its narrow gauge railroad between Kentwood and Hackley in Louisiana upon schedules and days to be approved by the Commission. The plaintiff alleges that the order cannot be complied with except at a loss of more than $1,500 a month, and that

2. RAILROADS 57-MAY DISCONTINUE OP-to compel compliance would deprive the plain

ERATION AT LOSS.

If a company operating a lumber business and a railroad be taken to have granted to the

tiff of its property without due process of law, contrary to the Fourteenth Amendment of the Constitution of the United States, with

For other cases see same topic and KEY-NUMEER in all Key-Numbered Digests and Indexes

other objections not necessary to be men-, entire business of the corporation—and on tioned here. The defendant denies the plain- that ground made its decree. tiff's allegations and in reconvention prays for an injunction against the tearing up or abandoning of the road and for a mandate upholding the order. In the Court of first instance a preliminary injunction was issued in favor of the Commission, but was dissolved upon bond. Subsequently a judgment was entered denying a motion of the Commission to set aside the order dissolving the injunction, and after a trial on the merits judgment was entered for the plaintiff, declaring the order void. The defendant appealed from both judgments to the Supreme Court of the State. That Court reversed the decision below and reinstated the injunction granted on the defendant's prayer.

year.

*398

[1, 2] We are of opinion that the test applied was wrong under the decisions of this Court. A carrier cannot be compelled to carry on even a branch of business at a loss, much less the whole business of carriage. On this point it is enough to refer to Northern Pacific Ry. Co. v. North Dakota, 236 U. S. 585, 595, 599, 600, 604, 35 Sup. Ct. 429, 59 L. Ed. 735, L. R. A. 1917F, 1148, Ann. Cas. 1916A, 1, and Norfolk & Western Ry. Co. v. West Virginia, 236 U. S. 605, 609, 614, 35 Sup. Ct. 437, 59 L. Ed. 745. It is true that if a railroad continues to exercise the power conferred upon it by a charter from a State, the State may require it to fulfill an obligation imposed by the charter even though fulfil*It seems that the Banner Lumber Com- Missouri Pacific Ry. Co. v. Kansas, 216 U. S. ment in that particular may cause a loss. pany, a Louisiana corporation, formerly 262, 276, 278, 30 Sup. Ct. 330, 54 L. Ed. 472. owned timber lands, sawmills and this nar- But that special rule is far from throwing row gauge railroad. The road was primarily any doubt upon a general principle too well a logging road but it may be assumed to have established to need further argument here. done business for third persons as a common The plaintiff may be making money from its carrier. The Banner Lumber Company sold sawmill and lumber business but it no more the whole property to the Brooks-Scanlon Lumber Company on November 1, 1905, the be compelled to spend any other money to can be compelled to spend that than it can stockholders of which obtained a charter for maintain a railroad for the benefit of others the railroad as the Kentwood and Eastern who do not care to pay for it. If the plaintiff Railway Company on December 5 of the same be taken to have granted to the public an In the interim it was managed by interest in the use of the railroad it may them with separate accounts. An oral lease withdraw its grant by discontinuing the use of the road was made to the new company when that use can be kept up only at a loss. and soon afterwards the Brooks-Scanlon Munn v. Illinois, 94 U. S. 113, 126, 24 L. Ed. Lumber Company transferred its property 77. The principle is illustrated by the many to the Brooks-Scanlon Company, the plaintiff in error. On the first of July, 1906, the Brooks-Scanlon Company made a written lease of the road to the Railway Company and sold to it all the rolling stock and personal property used in connection with the road. Thereafter the road was run as before, doing a small business as a common carrier but depending upon the carrying of logs and lumber to make it a profitable rather than a losing concern. In course of time the timber of the Brooks-Scanlon Company was to it than the former schedule cost, and at a cut and it terminated the lease to the Rail- profit for plaintiff." This is merely the lanway Company, which discontinued business guage of hope. We cannot take it to be a on April 22, 1918, with the assent of the finding of fact, for we perceive nothing in Railroad Commission, and sold its rolling the evidence that would warrant such a findstock. At that time the Commission being advised that it had no power did nothing more. But later, subsequent to a decision by the Supreme Court in May, it issued notice to the Brooks-Scanlon Company and the Railway to show cause why the road should not be operated, gave a hearing, and issued the order complained of here. The Supreme Court, after saying that the two corporations were one under different names stated that the only question left for determination was whether the plaintiff could be compelled by

cases in which the constitutionality of a rate is shown to depend upon whether it yields to the parties concerned a fair return.

ground that we have stated, it is thrown in [3] While the decision below goes upon the at the end as a makeweight that the order of the Commission calls upon the plaintiff "to submit a new schedule for transportation which may be operated at much less expense

⚫400

ing. The assumption upon which the Court made its ruling was that the plaintiff's other business was successful enough to stand a

loss on the road.

[4] Finally a suggestion is made in argument that the decision rested also upon another ground that cannot be reconsidered here. At the end of the opinion it is stated that the plaintiff has not petitioned the Railroad Commission for leave to discontinue this business and that until it has done so the courts are without jurisdiction of the matter. It is not impossible that this is an oversight the Commission to operate *its railroad, and since it seems unlikely that after the Comconcluded that although the railroad showed mission has called the plaintiff before it on. a loss, the test of the plaintiff's rights was the question and against its strenuous objec the net result of the whole enterprise the tion has required it to go on, such an empty.

*399