withstanding intervening decision of Supreme Court announcing contrary rule in another case; Pons v. Yazoo etc. R. Co., 131 La. 342, 59 South, 730, hearing new point urged for first time on rehearing and holding bank which was creditor of partnership could not by payment of debt of one partner become subrogated to claim of creditor; Lewis v. Baker, 128 La. 97, 54 South. 484, holding in action for rescission, for lesion beyond moiety, of sale of undivided interest in real estate that questions decided in appellate court are not reviewable on second appeal in same case; Marth v. Kingfisher Commercial Club, 44 Okl. 517, 144 Pac. 1049, 8 N. C. C. A. 788, refusal of instruction, in action for personal injury, embracing law as declared in former appeal, is reversible error; Harding v. Gillett, 25 Okl. 206, 107 Pac. 669, conclusions of Supreme Court of territory upon question arising on appeal, where appeal to Federal Supreme Court was dismissed on ground that territorial court did not dispose of merits, are binding upon trial court in subsequent proceeding.

Distinguished in Great Northern Ry. Co. v. Western Union Tel. Co., 174 Fed. 323, 98 C. C. A. 193, holding mandate of appellate court did not cover entire case in suit by railroad to determine ownership of telegraph line on its right of way and decree on second appeal affirms right of telegraph company to compensation for services in excess of free services provided for by contract.

Whatever was before the court and disposed of is law of the case and finally settled.

Approved in United States v. Camon, 184 U. S. 574, 46 L. Ed. 695, 22 Sup. Ct. 506, holding question of validity of Spanish grant or invalidity for indefinite location is determined on first appeal, second appeal bringing up only proceedings after mandate; Arrington v. Arrington, 131 N. C. 146, 92 Am. St. Rep. 771, 42 S. E. 554, holding decision on prior appeal that foreign judgment for alimony was final judgment becomes law of case binding upon second appeal; Jones v. Wilmington etc. R. R. Co., 131 N. C. 135, 42 S. E. 560, holding decision on first hearing that waiver of preliminary hearing is prima facie evidence of probable cause becomes law of the case.

Right of access of riparian owner as including right to construct wharf or pier. Note, 11 Ann. Cas. 14.

184 U. S. 99-111, 46 L. Ed. 442, 22 Sup. Ct. 458, BRAINARD v. BUCK, Amendment to bill in equity stating reasons for relief more fully does not state new cause of action.

Approved in Western Wheeled Scraper Co. v. Gahagan, 152 Fed. 650, in action against nonresident corporation and another for joint infringement of patent within district appearance by corporation was limited to cause of action stated in bill and court could not permit amendment dismissing as to other defendant and alleging infringement generally.

987

CLEVELAND TRUST CO. v. LANDER. 184 U. S. 111-115 Concurrent decisions of two courts will be followed unless clearly erro

neous.

Approved in United States v. Carter, 217 U. S. 301, 19 Ann. Cas. 594, 54 L. Ed. 774, 30 Sup. Ct. 515, where both courts find army officer accountable for illicit gains received in execution of government contracts, burden is on him to show such conclusion is erroneous; Dun v. Lumbermen's Credit Association, 209 U. S. 24, 14 Ann. Cas. 501, 52 L. Ed. 666, 28 Sup. Ct. 335, where both lower courts find proportion of copyrighted matter issued in later publication is insignificant, injunction should be refused, and owner of copyright remitted to law court to recover for damages; Hy-Yu-Tse-Mil-Kin v. Smith, 194 U. S. 412, 48 L. Ed. 1045, 24 Sup. Ct. 676, finding as to membership in Indian tribe adopted by commissioner and two lower courts not disturbed by Federal Supreme Court; Busch v. Jones, 184 U. S. 604, 46 L. Ed. 711, 22 Sup. Ct. 513, sustaining Jones patent No. 204,741, for removing type indentations from printed sheets where lower courts found in favor of novelty.

Suit to establish resulting trust is not barred by laches where it was brought within year of ejectment suit against complainant which suit was first notice that legal title was not in his predecessors in interest.

Approved in Seefeld v. Duffer, 179 Fed. 222, 103 C. C. A. 32, holding laches cannot be imputed to holder of equitable title for delay in resorting to equity for protection of legal title, and enjoining action of trespass to try title brought by heirs more than fifty years after order of court was made upon which equitable title is based; Myers v. Mayhew, 32 App. D. C. 212, person having title by adverse possession may sue to remove cloud from title, though title was acquired by ancestors fifty years before, where land was not considered of sufficient value to be assessed for taxation and owners of legal title took no steps to interfere with his pos

session.

184 U. S. 111-115, 46 L. Ed. 456, 22 Sup. Ct. 394, CLEVELAND TRUST CO. V. LANDER.

Tax on shares of stock is not tax on property of corporation. Approved in Hager v. American Nat. Bank, 159 Fed. 401, 86 C. C. A. 334, that value of shares of national bank includes value due to nontaxable government bonds owned by bank is no objection to assessment upon such shares without excluding such value; Ex parte State (State v. Lovejoy), 188 Ala. 404, 66 South. 2, under statute of 1907 assessing shares of stock to owner at actual value, tax is to be levied upon shareholder, not upon corporation, and shareholder cannot claim exemptions to which corporation is entitled; Tarrant v. Bessemer Nat. Bank, 7 Ala. App. 297, 61 South. 50, upholding statute of 1907 assessing shares of stock to owner at actual value and not permitting deduction from value of capital stock of amount invested by bank in exempt State bonds; Judy v. Beckwith, 137 Iowa, 35, 15 Ann. Cas. 890, 15 L. R. A. (N. S.) 142, 114 N. W. 569, upholding provision of code taxing shares of

foreign corporations held within State; German American Sav. Bank v. Council of City of Burlington, 118 Iowa, 86, 91 N. W. 830, holding bank cannot deduct amount of nontaxable bonds held as part of capital stock from tax assessment op shares of stock; Marion Nat. Bank v. Burton, 121 Ky. 882, 10 L. R. A. (N. S.) 947, 90 S. W. 946, shares of stock in national banks taxed under Kentucky statute of 1903 are entitled to have value of nontaxable government bonds held by bank deducted, where State banks are allowed to make such deduction; Matter of Jones, 172 N. Y. 583, 65 N. E. 572, holding shares of joint stock association are personal property and taxable as such; First National Bank v. Douglas Co., 124 Wis. 21, 102 N. W. 317, real estate acquired with and constituting national bank capital not taxable under Banking Act of 1866, c. 102, § 1, p. 129, dissenting opinion in Pullen v. Corporation Commission, 152 N. C. 566, 568, 68 S. E. 163, 164, majority holding that part of surplus of bank, invested in nontaxable State bonds, must be deducted from surplus in assessing stock for taxation.

Distinguished in Home Saving Bank v. Des Moines, 205 U. S. 518, 51 L. Ed. 910, 27 Sup. Ct. 571, effect of Iowa code providing for taxation of shares of State banks and trust companies to bank and not to stockholders as construed by State court is tax upon property of bank, and assessment including government bonds owned by bank in fixing valuation of shares is illegal.

Deductions in taxation of shares in hands of shareholders. Note,
L. R. A. 1915C, 389.

State taxation of Federal bonds and obligations. Note, 4 Ann. Cas.
937.

184 U. S. 115-123, 46 L. Ed. 459, 22 Sup. Ct. 337, VOIGT V. DETROIT. Owner of property assessed for benefits is entitled to hearing, but not to notice of every step in condemnation proceedings.

Approved in St. Louis etc. Land Co. v. Kansas City, 241 U. S. 427, 60 L. Ed. 1079, 36 Sup. Ct. 647, owner of property assessed for benefits to pay award for property condemned is not entitled to be made party to condemnation proceedings; Londoner v. Denver, 210 U. S. 378, 52 L. Ed. 1109, 28 Sup. Ct. 708, and Londoner v. Denver, 52 Colo. 25, 119 Pac. 159, both upholding provision of charter authorizing park commissions by condemnation proceedings to acquire land for parks to be paid for by special assessments, and making finding of city council that required notice was given and petition of remonstrance was or was not filed conclusive; Brookes v. Oakland, 160 Cal. 429, 430, 117 Pac. 435, act of 1911 conferring on city council power to create sewer district for special taxation to pay cost of sewers without giving owner hearing on question of whether his property should be included as land benefited, and only hearing is as to valuation of land, denies due process; Durkee v. Barre, 81 Vt. 537, 71 Atl. 821, law of 1906 authorizing city council upon deciding that prior paving of city street was for public good to order assessment on notice

989

UNITED STATES v. BARLOW. 184 U. S. 123-140

to taxpayers is not denial of due process for failure to give taxpayers opportunity to be heard on question of public good.

Michigan Compiled Laws of 1897 do not violate due process clause by failure to require that assessment upon district shall not exceed benefits. Approved in Schaefer v. Werling, 188 U. S. 518, 47 L. Ed. 572, 23 Sup. Ct. 450, upholding Indiana statute of 1899, "Barrett Law," for assessment of cost of improvement against abutting property according to frontage; Goodrich v. Detroit, 184 U. S. 439, 46 L. Ed. 631, 22 Sup. Ct. 399, holding notice to owners of land which may be assessed for improvement is not required where such land is not taken and notice of assessment is given; Ross v. Board of Supervisors of Wright County, 128 Iowa, 430, 437, 104 N. W. 507, 509, upholding Iowa Code, tit. 10, c. 2, as amended 30th Gen. Assem., c. 67, p. 59, appointing commission to fix drainage district restricting on appeal owner's right to show lack of benefit to his land; Oliver v. Monona Co., 117 Iowa, 55, 90 N. W. 514, holding sufficient notice in proceedings to locate drainage ditch, that commissioner had reported in favor of location and that all objections must be filed before certain time; O'Brien v. Schneider, 88 Neb. 483, 129 N. W. 1003, statute authorizing creation of drainage district and levying of special assessments is not void for failure to limit expressly aggregate of assessments to benefits that will accrue to lands within district; Erickson v. Cass Co., 11 N. D. 499, 92 N. W. 844, upholding N. D. drainage law of 1899, providing for hearing for land owners upon notice before assessments for benefit become final; Richmond v. Williams, 102 Va. 739, 47 S. E. 846, creditors secured by deed of trust not entitled to notice and hearing before assessment of property under act of February 19, 1892; Adams v. Roanoke, 102 Va. 64, 45 S. E. 885, upholding acts of 1896 and 1900, adopting frontage rule.

Validity of special assessment levied by front foot instead of according to benefit. Note, Ann. Cas. 1913A, 656.

184 U. S. 123-140, 46 L. Ed. 463, 22 Sup. Ct. 468, UNITED STATES v. BARLOW.

Secretary of Navy had power to direct change in contract for construction of dry dock.

Approved in William Cramp & Sons Ship etc. Bldg. Co. v. United States, 216 U. S. 503, 54 L. Ed. 590, 30 Sup. Ct. 392, where provision in government contract for construction of vessel was treated as impracticable and waived, Secretary of Navy could consent to change in terms of release.

Under contract providing that stone must be of quality approved by engineer, held the engineer in charge was appointee of both parties and his judgment on stone final.

Approved in United States v. Walsh, 115 Fed. 701, 52 C. C. A. 419, holding under contract in question for building of drydock judgment of

engineer in charge was final as to all details left to his decision by specifications; General Fireproofing Co. v. L. Wallace & Son, 175 Fed. 662, 99 C. C. A. 204, under building contract authorizing architect to condemn materials or work and cause same to be removed and requiring final certificate of architect, where final certificate was not given, contractor was not relieved from liability for defective work or improper materials for failure to condemn them as work progressed.

Building contracts-Stipulation that alterations or extras must be ordered in writing. Note, 48 L. R. A. (N. S.) 568, 580, 596.

184 U. S. 140-151, 46 L. Ed. 471, 22 Sup. Ct. 480, UNITED STATES v. EWING.

Not cited.

184 U. S. 151-155, 46 L. Ed. 475, 22 Sup. Ct. 457, FIRST NAT. BANK OF LAKE BENTON V. WATT.

Measure of recovery against national bank for collection of usurious interest is twice entire amount of interest paid.

Approved in Hemple v. Raymond, 144 Fed. 799, 75 C. C. A. 526, under Carter's Alaska Code, pt. 5, c. 27, § 257, twice amount of interest paid out, twice the excess over legal rate, is penalty; First Nat. Bank of Blakely v. Davis, 135 Ga. 691, 36 L. R. A. (N. S.) 134, 70 S. E. 248, allowing recovery of penalty for collection of usurious interest where interest was paid in property and not in money; Ervin v. First Nat. Bank of Lenoir, 161 N. C. 48, 76 S. E. 531, bank requiring debtor to renew indebtedness and to pay eight per cent on some payments and more than seven per cent on others is guilty of usury and debt bears no interest; McCarthy v. First Nat. Bank of Rapid City, 23 S. D. 279, 21 Ann. Cas. 437, 23 L. R. A. (N. S.) 335, 121 N. W. 857, cause of action for penalty arises at time of application of payment on usurious note to payment of usurious interest with knowledge and consent of maker, and action is barred by two year statute of limitations; Meredith v. American Nat. Bank of Sparta, 127 Tenn. 92, 153 S. W. 479, allowing recovery of twice amount of entire interest paid as penalty for collecting usurious interest. Amount of penalty under usury statutes authorizing recovery of double amount of interest paid. Note, 3 Ann. Cas. 849. Effect of national bank's taking or reserving illegal interest. Note, 56 L. R. A. 707.

184 U S. 156-162, 46 L. Ed. 478, 22 Sup. Ct. 475, LEAGUE v. TEXAS. State may adopt new remedies for collection of taxes and apply those remedies to taxes already delinquent.

Approved in Arbuckle v. Kelley, 144 Fed. 278, and Towson v. Denson, 74 Ark. 307, 86 S. W. 662, both upholding act of Arkansas, March 18, 1899, providing taxpayer on unimproved land deemed in possession when has paid taxes seven years, three of which subsequent to act; State v.