"The question for our present consideration is not whether the plaintiff enjoyed remunerative returns in prior years, which were perfectly legal, but whether at the present time it is receiving and is likely to receive in the future a fair return upon its invested capital. We think no one would contend for the converse proposition, viz. that if in prior years the plaintiff had received very inadequate returns it ought to have for that reason in the present and future more than a fair return upon its capi tal invested." I 4. The allowances for unaccounted-for gas cannot be accurately ascertained. agree with the master in the per cent. he arrives at for the subsidiaries in the outlying sections. It may be that the unaccounted-for gas will decrease if, among other things, the condition caused by extracting toluol for munition purposes of the federal government can be remedied. The master's figures under this head are accepted. 5. Uncollectible Bills. There is apparently no way of accurately ascertaining uncollectible bills for a particular year, but in a matter of this kind an average can be allowed. I should say one-quarter to one-half of 1 per cent. of the gross sales was reasonable, but, if the item were stricken out, it would make no difference in this case. 6. As the services rendered by Mr. Carter were apparently in connection with the rate case, the $7,500 will be disallowed. As Mr. Beattie's service was not in connection with ordinary operation, the amount of $17,260.81 will be disallowed. These disallowances do not affect the result. 7. Working Capital. The allowance of $4,000,000 in a business of this magnitude is sustained. Prudent business men must look ahead, and be prepared by having an amount of working capital reasonably nẹcessary for their requirements. 8. The charges of collusion and the like in respect of the oil contract and dealings are not supported by a scintilla of proof. 9. The theory on which the master dealt with relations between the plaintiff and its subsidiaries is sound, and he has correctly found the facts. His opinion in respect thereof is adopted. 10. Rate Base. It is inconceivable on any theory how a rate base of less than (in round numbers) $28,000,000 for 1918, excluding working capital, and $27,000,000 for 1919, could be found. In the 10 months of 1920, there was a net loss of $2.89 per 1,000 cubic feet sold; hence the rate base for that period is immaterial. [3] The master has so fully discussed the question of a rate base that amplification is unnecessary. He has been conservative, and on the basis of the 1919 figures I should have been inclined to increase the rate base; but, as there is no exception by plaintiff, I will leave it where the master placed it. With a net return of only 31⁄2 per cent. on a base for 1918 which exclud ed working capital, of less than 1 per cent. in 1919, and an actual loss in the 10 months of 1920, the rate of return is an academic question. 11. On all the evidence, plaintiff has shown that the statutory rate of 80 cents is confiscatory. As has been frequently stated, this court will not fix a rate. Its duty ends when it determines whether or not the statute is constitutional, so far as concerns the plaintiff. The power to fix a just and proper rate now rests with the commission created by chapter 134 of Laws of 1921 of the state of New York. In all respects, not specifically referred to in this memorandum, the report will be confirmed. 2 F.(2d) 121 THE KAIAN MARU. (District Court, D. Oregon. July 9, 1924.) No. 8935. Admiralty 21-Without jurisdiction of action for death which occurred on land. An action under Or. L. § 380, which is construed by the Supreme Court of the state to give a right of action for death, and not on a surviving cause of action for injury, is not within the jurisdiction of a court of admiralty, where the death occurred on land, though the injury causing it was received on the water. on land an admiralty court has no jurisdic- I reach this conclusion with less reluctance than I might in some other cases, from the fact that it appears from the record that Jones has already paid the executor in this case $2,000 for this injury, and in an affida vit filed by the executor it is stated that Hallengren was 49 years old at the time of his death, and he did not leave an estate sufficient to pay his burial expenses. The executor was permitted to maintain this suit after filing a pauper's oath. The measure of damages in this class of cases would be the loss to the estate of the deceased by reason of McCamant & Thompson, of Portland, Or., his death, and if this man had lived 49 years, In Admiralty. Suit by E. Munson, executor of the will of Oscar Hallengren, deceased, against the steamship Kaian Maru (the Katsuda Steamship Company, claimant) and C. R. Jones. Cause dismissed for want of jurisdiction. Wm. P. Lord, of Portland, Or., for libelant. for defendant. BEAN, District Judge. The case of Munson, executor of the estate of Hallengren, deceased, against the Kaian Maru and C. R. Jones, doing business under the firm name and style of Jones & Co., was submitted a few months ago and has been awaiting brief of the libelant. The brief has not been filed and I feel the court would not be justified in holding the case up any longer. It appears from the record that, while Hallengren was employed as a stevedore by Jones, and while stowing cargo in the hold of the ship, he received an injury from which he subsequently died. After the injury he was removed to a hospital, and lived three or four days. His executor brings a libel against the ship and against Jones & Co. to recover damages for his death. The action is brought under section 380 of the Oregon statute, which has been construed by the Supreme Court of this state to be a death and not a survival statute. In other words, the original injury does not survive to the executor. The action authorized by the statute is for a death, to recover the damages resulting to an estate, and therefore, as the cause of action upon which this suit is based arose on land, and not on water, the authorities seem to be that an admiralty court has no jurisdiction. In cases where the cause of action by statute survives, an admiralty court would, under those circumstances, have jurisdiction, because, if an injury occurs on water and is aggravated by subsequent acts on land, it does not deprive the admiralty court of jurisdiction over the case; but where the cause of action arises and had not accumulated enough property to 598708. LAKEWOOD ENGINEERING CO. v. NEW Nos. 12743, 12744. Constitutional law 308-Limitation of ac- Transportation Act Feb. 28, 1920, § 206, Two actions by the Lakewood Engineering Company against the New York Central Railroad Company. On demurrers to petitions. Demurrers overruled. Mark A. Copeland, of Cleveland, Ohio, West, Lamb & Westenhaver and S. H. WESTENHAVER, District Judge. The question of law raised by demurrer is the same in both cases. the year 1917 and prior to federal control exacted from plaintiff an excessive freight rate on certain shipments. Plaintiff's complaint and application for a reparation order was not filed with the Interstate Commerce Commission until March 8, 1921. Thus it appears that more than two years had elapsed after plaintiff's several causes of action accrued before the filing of said complaint and also before the enactment of the Transportation Act of 1920. It is defendant's contention that section 16, Interstate Commerce Act (Comp. St. § 8584), requiring reparation claims to be filed with the Interstate Commerce Commission within two years from the time the cause of action accrues, and not after, bars not merely the remedy, but extinguishes the right, and hence that section 206, clause (f), Transportation Act of 1920 (Comp. St. Ann. Supp. 1923, § 1007114cc), may not revive the extinguished right by providing that the peri The defendant during od of limitation in reparation claims than the two-year clause of section 16. Hence defendant's contention involves a determination that it was beyond the constitutional power of Congress to apply a retroactive statute of limitations to a reparation claim. To sustain this contention requires a holding that section 206, clause (f), deprives defendant of its property without due process of law, in violation of the Fifth Amendment. This is a strong proposition. Defendant here has wrongfully exacted an unreasonable and excessive charge for the transportation of freight. It has collected from plaintiff and put in its pocket sums of money which, in equity and good conscience, belong to plaintiff. It would seem that this is in substance a debt which is as much owing now as it was when wrongfully exacted. It is difficult to perceive how defendant is deprived of its property without due process of law by being deprived of its right to rely on a statutory bar, whether one which bars a remedy or extinguishes a right, when the result is merely to make defendant refund money rightfully belonging to plaintiff. The limitations upon legislative power to deprive one of property under the guise of a retroactive statute of limitations as set forth in Campbell v. Holt, 115 U. S. 620, 6 S. Ct. 209, 29 L. Ed. 483, have been carefully considered, and, in my opinion, have no application to the present situ od of federal control should be excluded in computing periods of limitation in claims for reparation. Supporting the contention that said section 16 not merely bars the remedy, but extinguishes the right are cited Phillips v. Grand Trunk, etc., Ry. Co., 236 U. S. 662, 35 S. Ct. 444, 59 L. Ed. 774; United States ex rel. Cement Co. v. I. C. C., 246 U. S. 638, 38 S. Ct. 408, 62 L. Ed. 914, and a dictum of Judge Rudkin in Wenatchee Produce Co. v. Great Northern Ry. Co. (D. C.) 271 F. 784, 785. It is not seriously urged that section 206, clause (f), does not or was not intended by Congress to apply to the present situation. Its language is plain, and neither admits nor requires interpretation. It provides in plain and express language that the period of federal control shall not be computed as a part of the periods of limitations in actions against carriers or in claims for reparation to the Commission for causes of action arising prior to federal control. Congress could have had in mind no other peri ation. This conclusion is in accord with San Diego & A. Ry. Co. v. Atchison, T. & S. F. Ry. Co. (D. C.) 293 F. 139; Arcadia Mills v. Carolina, C. & O. Ry. (D. C.) 293 F. 639, 644, 645. I am in full accord with the reasoning as well as the conclusions of these See, also, Standley v. U. S. Railroad Administration (D. C.) 271 F. 794; Wenatchee Produce Co. v. Great Northern Ry. Co. (D. C.) 271 F. 784. cases. The demurrers will be overruled in both cases. Exceptions will be noted. 2 F.(2d) 123 BAILEY et al. v. ALLAN E. WALKER, Inc., et al. (Court of Appeals of District of Columbia. Submitted October 6, 1924. Decided November 3, 1924.) No. 965. 1. Courts 169(1)—Municipal court may render judgment on tenant's undertaking, in landlord and tenant action, In an amount exceed Ing $1,000. Municipal court, having rendered judgment for landlord in landlord and tenant action, could render money judgment on tenant's undertaking executed to secure stay of execution on review of judgment by writ of error, for more than $1,000, under Act March 3, 1921, § 12, notwithstanding section 1, limiting jurisdiction to cases in which claimed value of personal property, or the debt or damages claimed, does not exceed $1,000. 2. Statutes 194-Specific provisions relating to given subject prevail over general provisions relating to class of which subject is part. Specific provisions relating to a given subject prevail over more general ones relating to a class of which the particular subject is but a part, unless the context or some other proper basis of construction clearly shows a different legislative purpose. 3. Landlord and tenant 315(4)-Validity of judgment on tenant's undertakings in landlord and tenant action not affected by erroneous Inclusion in original claim of items subsequently withdrawn and not Included in judg ment. trict, and to other parties, to prohibit them from proceeding with or enforcing the collection of a certain judgment for money, which has been entered against the petitioners in the municipal court, but has not yet been issued upon; the claim of the petitioners being that the court was without jurisdiction to enter the judgment in question, and consequently that it is void. without dispute. On December 20, 1921, The controlling facts in the case appear the Allan E. Walker Company, Inc., commenced in the municipal court of the District of Columbia a landlord and tenant action against Joseph W. Bailey to recover possession of certain real estate situate within the city of Washington. Afterwards, to wit, on March 23, 1922, the court entered judgment in the action in favor of the plaintiff for the possession of the described premises. Thereupon the defendant obtained a writ of error for a review of the judgment by this court, and secured a stay of execution by filing an undertaking in the municipal court in the sum of $1,200, with the Commercial Casualty & Security Company as surety. The undertaking was duly conditioned for the payment of all intervening damages to the property in question and compensation for its use and occupation from the date of the judgment to the date of the satisfaction thereof, if the judgment should not be reversed. conditions follow the language of the statute, and are peculiar to such cases as this. Afterwards an additional undertaking in the sum of $5,000, similarly conditioned, was filed in the case with the same surety. The proceeding in error was heard on June 4, 1923, when the judgment below was affirmed. Afterwards, to wit, on March 11, 1924, a jury was impaneled in the original These case in the municipal court to determine the amount of the plaintiff's recovery upon the two undertakings according to the terms thereof, and the amount was fixed by their verdict in the sum of $3,418.18. A judgment in that sum was thereupon entered by the court against the petitioners, who were respectively the principal and surety in the undertakings. The petitioners objected and excepted to the judgment, claiming that the jurisdiction of the municipal court was expressly limited by statute to claims not exceeding $1,000 in amount, and that no judgment in excess of that amount could lawfully be entered in the case. It appears incidentally, from certain records which are referred to in the present 124 case, that the petitioners shortly after the rendition of the judgment applied to this court for a writ of error to obtain a review of the same, but by reason of a miscalculation in time the application was not presented to the court within rule, and consequently no writ of error was allowed. The validity of the present judgment upon the undertakings, therefore, has never been reviewed by this court. The petitioners are now threatened with execution of the judgment, and file their present petition in this court for a writ of prohibition to prohibit the municipal court and its officers, and also the judgment creditor, from proceeding with the collection or enforcement of the judgment, claiming as aforesaid that it is void. [1] In answer to the contention of the petitioners we may say that in our opinion the municipal court acted within its jurisdiction when it entered the judgment in question, and that the same is not void. It is true that Congress has in general terms limited the jurisdiction of that court to cases in which the claimed value of personal property, or the debt or damages claimed, exclusive of interest or costs, does not exceed $1,000. 41 Stat. 1310, § 1. But the present issue is governed by the provisions of section 12 of the same act, which refer specifically to proceedings for the review of judgments entered in the municipal court, and provide the method of staying execution thereon during the pendency of such review. The provisions governing the latter subject read in part as follows: an "Execution of such judgment shall be stayed if the party seeking the review shall within twenty days after the entry of the judgment file in the clerk's office of the undertaking with municipal court surety and penal amount approved by a judge of the court, to abide by and pay the judgment and the costs of the review if such judgment shall not be reversed; and, when the defendant in an action to recover possession of real estate seeks such review, the undertaking shall also provide for the payment of all intervening damages to the property sought to be recovered and compensation for its use and occupation from the date of the judgment to the date of the satisfaction thereof if the judgment is not reversed; and in all such undertakings the principal and surety shall submit to the jurisdiction of the municipal court and consent to the entry of judgment against them in that court in respect of These provisions relate specifically to undertakings for the stay of execution in the municipal court, and provide the method of recovering judgment upon them in case of default. They specify no limitation as to the penal amount of the undertaking in any case, but simply require that it shall be approved by a judge of the court. They furthermore require that the principal and surety shall submit to the jurisdiction of the municipal court and consent to the entry of judgment against them in that court in respect of their undertaking. This provision likewise contains no limitation as to the penal amount of the undertakings upon which the municipal court may enter judgment, but to the contrary it applies to all such undertakings as may be given under section 12, regardless of the penal amount thereof. [2] It is elementary in the interpretation of statutes that specific provisions relating to a given subject shall prevail over more general ones relating to a class of which the particular subject is but a part, unless the context or some other proper basis of construction clearly shows a different legislative purpose. In the present case, however, not only does the specific language of the statute apply to all such undertakings, without limitation as to their penal amount, but the legislative purpose manifested in the act clearly favors that interpretation. The act invests the municipal court with jurisdiction over landlord and tenant cases, regardless of the rental value of the real estate of which possession may be sought. The premises thus involved in given cases may have a very large rental value. It is plain that supersedeas undertakings in such cases must often exceed $1,000 in penal amount, or fall short of protecting the landlord in event his judgment be affirmed by the appellate court. Congress evidently inthe appellate court. tended that the principal and sureties in all such undertakings, regardless of amount, should be and remain subject to the jurisdiction of the court, for otherwise they might remove from this jurisdiction, and thereby compel the landlord to bring original actions upon the undertaking, perhaps in distant and widely separated jurisdictions, thus imposing great delay and expense upon him. It was to prevent this hardship that Congress required that the municipal court should retain jurisdiction over the obligors, and it is needless to say |