and not of constitutional power. Here the construction of the taxing act is not open to question. Its meaning and application have been determined by the Supreme Court of California and by its determination we are bound. We hold that in enacting it the legislature did not exceed its constitutional power.

Affirmed.

STANDARD OIL COMPANY OF NEW JERSEY v. SOUTHERN PACIFIC COMPANY AND JAMES C. DAVIS, DIRECTOR GENERAL OF RAILROADS.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

No. 197. Argued January 19, 1925.-Decided April 20, 1925. 1. The Federal Control Act did not authorize an action in tort by the owner of a vessel against the Director General of Railroads for her loss through collision while operated by the Director General P. 154.

2. Where the Director General, under his contract with the owner for the use and upkeep of transportation properties taken over under the Federal Control Act, made a settlement including an allowance for a vessel lost by collision during operation by the Director General, held that the common law rule that one who accepts satisfaction from one of two joint tort-feasors can not recover from the other was inapplicable to extinguish the claim of the owner against the owner of the other vessel in pending limitation of liability proceedings to which both owners and the Director General were parties. Id.

3. Upon an appeal in admiralty there is a trial de novo opening the whole case, so that a party is not bound by the decree below through failure to join in the appeal. P. 155.

4. In the absence of a market value, such as is established by contemporaneous sales of like property in the ordinary way of business, the damages to which the injured party is entitled in admiralty for the loss of a vessel is that amount which, considering all the circumstances, probably could have been obtained for her on the date of the collision-the sum that in all probability would have resulted from fair negotiations between an owner willing to sell and a purchaser desiring to buy. P. 155.

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Argument for Petitioner.

5. Cost of reproduction as of the date of valuation is evidence to be considered but neither that, nor that less depreciation, is the measure or the sole guide; value is the thing to be found, and there should be a reasonable judgment of this based on a proper consideration of all relevant facts. P. 156.

6. In view of changed prices, held that original cost of a vessel was not a useful guide to her value when lost. P. 157.

292 Fed. 560, affirmed.

CERTIORARI to a decree of the Circuit Court of Appeals modifying a decree of the District Court (266 Fed. 570; 285 id. 617) in proceedings for limitation of liability, in admiralty. The District Court found that both the petitioner's vessel and that of the Southern Pacific Company were at fault, and fixed the damages of the latter. The Circuit Court of Appeals found petitioner's vessel alone at fault and increased the damages. For preliminary proceedings in this Court, see 263 U. S. 681, 696; 265 U. S. 569.

Messrs. John M. Woolsey and William H. McGrann for petitioner.

The settlement made between the Director General of Railroads and the Southern Pacific Company, by payment to the latter of the value of the Proteus in exchange for a release, constituted a satisfaction of the claim of the Southern Pacific Company in respect of the loss of the Proteus. Any allowance that can now be made herein for the loss of the Proteus can only be for a payment to the Director General of such an amount, not exceeding the amount thus paid by him in settlement, as will represent the value of the Proteus.

When two tort-feasors by their concurrent negligence have caused an injury to a third person, they are jointly and severally liable to him under the salutary doctrine laid down in the overwhelming majority of the courts of this country. The Atlas, 93 U. S. 302, at page 318; Boyer v. Sturgis, 24 How. 122; Colegrove v. N. Y. N. H.

Argument for Petitioner.

268 U.S.

& H. R. R. Co., 20 N. Y. 492; Carlton v. Boudar, 118 Va. 521; Walton, Witten & Graham v. Miller, 109 Va. 210; Feneff v. Boston & Me. Ry., 196 Mass. 575; Cuddy v. Horn, 46 Mich. 596; Drown v. New Eng. T. & T. Co., 80 Vt. 1; Slater v. Mersereau, 64 N. Y. 138; Corey v. Havener, 182 Mass. 250; McClellan v. St. Paul M. & M. Ry., 58 Minn. 104; Reynolds v. Kansas City, 180 Mo. App. 138; City of Louisville v. Heitkemper's Adm'x, 169 Ky. 167; The Ira M. Hedges, 218 U. S. 264.

There is not any doubt that, under the law as laid down by this Court, the Southern Pacific Company, as the innocent owner, could have sued either the Standard Oil Company or the Director General for the negligent sinking of the Proteus and recovered full damages from either tort-feasor, or it could have sued them jointly and recovered a moiety of its damages from each in the first instance, with a right over against the other tort-feasor for any deficiency not paid by the respondent against whom execution first issued. But once it had received from one of the tort-feasors full satisfaction for its loss, as it has done here, it could not pursue the other tort-feasor for further damages for the excellent reason that it would not have any cause of action left. The Beaconsfield, 158 U. S. 303, 307; The Atlas, supra; Lovejoy v. Murray, 3 Wall. 1; Jennings v. Dolan, 29 Fed. 861; Albright v. McTighe, 49 Fed. 817; United States v. Murphy, 15 Fed. 589; 1 Williston Contracts, § 334, 338a; 26 Harv. L. R., 658; 34 Harv. L. R., 442; 12 Harv. L. R., 66; Seither v. Philadelphia Transaction Co., 125 Pa. St. 397.

That leaves the equities of contribution to be worked out between the Director General and the Standard Oil Company. The right of contribution in such a case "belongs to the substantive law of the admiralty." The Ira M. Hedges, supra; Erie R. R. Co. v. Erie & Western Trans Co., 204 U. S. 220.

It is settled law that there is a new trial in admiralty on appeal to the Circuit Court of Appeals or on certiorari to

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Argument for Petitioner.

this Court. Reid v. Fargo, 241 U. S. 544; Watts v. Unione Austriaca, 248 U. S. 9; The John Twohy, 255 U. S. 77. We must look, therefore, at the facts, as now developed on the new evidence taken in this Court. Now that the Southern Pacific Company has been cut out of the case by the satisfaction of its claim, the only question left is what allowance the Director General should have in the collision adjustment in respect of the Proteus. The Director General did not appeal and, therefore, we submit, cannot be allowed more than the District Court allowed as the value of the Proteus. Cf. The Beaconsfield, 158 U. S. 303, 310. Certainly there is not any question but that the largest claim which he can now possibly make is for reimbursement to the extent of the amount which he had paid to his bailor in settlement of his contract obligation to make the bailor whole. Cf. Vermilye v. Adams Express Co. 21 Wall. 138.

The rule of damage applied by the Circuit Court of Appeals is erroneous in that it is based on an arbitrary formula, the two factors of which are a speculative reproduction cost, and an uncertain depreciation rate; which operates to exclude other material factors in arriving at fair valuation. The proper rule is that adopted by the District Court, and by the Commissioner, whereby, in the absence of a provable market value, all other relevant facts are considered in determining the measure of the loss. There was not any market value for the Proteus at the time of her loss. Gulf Refining Co. v. United States, 58 Ct. Cls. 559. The burden of proof to establish the loss rested on the Proteus interests (Southern Pacific Company and Director General of Railroads). The Conqueror, 166 U. S. 110; Sedgwick on Damages, 9th ed. Vol. 1, p. 181. The Circuit Court of Appeals based its valuation squarely and exclusively on the reproduction and depreciation theory. The factor of "cost of reproduction" which was taken to be $1,750,000, is highly speculative and excessive. The second factor, that of "depreciation," which the

Argument for Petitioner.

268 U.S.

Circuit Court of Appeals assumed to be two and a half per cent. per year, was also unreasonable and unduly advantageous to the respondents, and its acceptance greatly enhanced the result obtained by the formula, and to the disadvantage of the petitioner. A rate of five per cent. of the book value (for each year) as depreciation, was held to be a reasonable allowance for deduction from value, in the case of San Francisco & Portland SS. Co. v. Scott, Collector, 253 Fed. 854; United States v. Standard Oil Co. 258 Fed. 696; The Anhauac, 295 Fed. 346; The Harmonides, 1903 Prob. Div. 1.

The application of the reproduction and depreciation method so exclusively is not supported by the weight of authorities. The cases show a wide latitude in considering all elements which bear on the question of the measure of the loss under the circumstances here: The Colorado, Brown Adm. 411, Fed. Cas. No. 3029; affirmed, The Colorado, 91 U. S. 692; Leonard v. Whitwill, 19 Fed. 549; City of Alexandria, 40 Fed. 697; The H. F. Dimock, 77 Fed. 226; The Mobile, 147 Fed. 882; The Lucille, 169 Fed. 719; Alaska S. S. Co. v. Inland Nav. Co. 211 Fed. 840; The Iron Master, 1 Swabey Adm. Rep. 441; The Clyde, Id. 23 (1856); Shipping Controller v. Lloyds Royal Belge Ltd., 1 L. R. 231, 389; K. B. D. Com. Court Nov. 10, 1919; Harries v. Shipping Controller (May 14, 1918), 14 Asp. Mar. Cas. 320; The Harmonides, supra; The Winkfield (1902) P. B. 42; 9 Asp. 259 (July 23, 1903); Roscoe on Damages in Marine Collisions, 2nd ed., p. 166; Marden's Collision at Sea, 7th ed., p. 119. All the circumstances bearing on the value of the Proteus to the respondents (particularly in its aspect as a loss) must be considered as relevant in arriving at an amount which would fulfill the requirements of the doctrine of "restitutio in integrum." The Iron Master, Swb. 443; The Harmonides, supra; The Minnesota Rate Cases, 230 U. S. 433; The Utopia, 16 Fed. 507. Indeed, the "reproduction and depreciation" method as applied by the Circuit