CASES ADJUDGED

IN THE

SUPREME COURT OF THE UNITED STATES

AT

OCTOBER TERM, 1939

MILLER v. HATFIELD, TRUSTEE IN FARMER DEBTOR BANKRUPTCY, ET AL.

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

No. 237. Argued January 5, 1940.-Decided January 15, 1940.

Upon finding that a necessary party to an appeal is absent, the Circuit Court of Appeals should sustain a motion of the appellant for a citation to bring him in, not dismiss the appeal.

101 F.2d 748, reversed.

Mr. Elmer McClain for petitioner.

Mr. Kent W. Hughes, with whom Mr. H. E. Garling was on the brief, for respondents.

PER CURIAM.

This proceeding was instituted by a farmer-debtor pursuant to § 75 of the Bankruptcy Act. Under an order of the District Court, approving an order of the conciliation commissioner, petitioner's farm was sold to one of the cotrustees of a mortgage upon the property and the sale was confirmed by the District Court.

A petition for rehearing was denied. Upon appeal to the Circuit Court of Appeals, that court found that the purchaser at the sale was not a party to the appeal and

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1

dismissed it. Petitioner sought a rehearing upon the ground that the purchaser had actual notice of the appeal and had appeared in the Court of Appeals joining in an objection to an enlargement of time for filing the record and also seeking appointment of a receiver or an additional supersedeas bond. Petitioner also asked that if it be considered that the purchaser was not already before the court, a citation should be issued to bring him in. The Court of Appeals denied both applications. Certiorari was granted, 308 U. S. 534.

We are of the opinion that the action of the Court of Appeals was erroneous. If the court deemed the purchaser to be a necessary party and not before the court, the motion to issue a citation to him should have been granted. R. S. 954, 28 U. S. C. 777. Dodge v. Knowles, 114 U. S. 430, 438; Knickerbocker Life Insurance Co. v. Pendleton, 115 U. S. 339; In re Knox-Powell-Stockton Co., 97 F. 2d 61.

The decree is reversed and the cause is remanded to the Circuit Court of Appeals for further proceedings in conformity with this opinion.

Reversed.

MCGOLDRICK, COMPTROLLER OF THE CITY OF NEW YORK, v. GULF OIL CORP.*

CERTIORARI TO THE SUPREME COURT OF NEW YORK.

No. 473. Argued January 2, 3, 1940.-Decided January 15, 1940.

Jurisdiction to review the judgment of a state court can not be entertained if it does not affirmatively appear that the decision did not rest upon an adequate non-federal ground.

CERTIORARI, 308 U. S. 545, to review 281 N. Y. 647; 22 N. E. 2d 480, dismissed.

* Rehearing granted, Feb. 5, 1940, see post, p. 692.

2

Opinion of the Court.

Mr. Paxton Blair, with whom Messrs. William C. Chanler and Sol Charles Levine were on the brief, for petitioner.

Mr. Matthew S. Gibson for respondent.

By leave of Court, Messrs. George deForest Lord and Woodson D. Scott filed a brief on behalf of the Cunard White Star, Ltd., as amici curiae, challenging the validity of the tax.

PER CURIAM.

The City of New York, through its Comptroller, assessed a tax against respondent with respect to sales of oil manufactured in that city in a bonded manufacturing warehouse, Class 6, established pursuant to the customs laws of the United States, the crude oil having been imported from Venezuela and the sales of the manufactured oil having been made to supply fuel to vessels engaged exclusively in foreign commerce. The Appellate Division, First Department, annulled the determination of the Comptroller considering the tax to be a burden upon foreign commerce. 256 App. Div. 207. The Court of Appeals affirmed the order of the Appellate Division, without opinion. 281 N. Y. 647. Certiorari was granted, 308 U. S. 545.

In the absence of an explicit statement by the Court of Appeals that it annulled the assessment of the tax solely because of violation of the federal Constitution, we are unable to find that the decision of the highest court of the State did not rest upon an adequate non-federal ground. Jud. Code, § 237 (b), 28 U. S. C. 344 (b). Lynch v. New York, 293 U. S. 52; Honeyman v. Hanan, 300 U. S. 14; New York City v. Central Savings Bank, 306 U. S. 661.

The writ of certiorari is dismissed for the want of jurisdiction.

Dismissed.

OKLAHOMA PACKING CO. ET AL. v. OKLAHOMA GAS & ELECTRIC CO. ET AL.*

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

No. 19. Argued October 17, 1939. Decided December 4, 1939. Opinion on Petition for Rehearing delivered January 15, 1940.

1. A Delaware corporation, pursuant to the laws of Oklahoma, designated an agent for service of process "in any action in the State of Oklahoma." Held amenable to suit in the federal District Court in Oklahoma upon a cause of action arising in that State. Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U. S. 165. P. 6. 2. A determination of the Supreme Court of Oklahoma that its judgments, on appeal from rate orders of the Corporation Commission, were formerly legislative in character and that they can not be given the effect of res judicata by the retroactive influence of a later doctrine of that court characterizing such judgments as judicial,-held binding on this Court. P. 7.

3. Where an action upon supersedeas bonds given by a gas company for the security of one of its consumers in connection with its appeal from a rate order, was pending in a state court and defended by the company's answer upon the ground that the order violated the Federal Constitution, held that a subsequent suit by the company, on the same ground, to enjoin the consumer from prosecuting the action could not be entertained by a federal court. Jud. Code, § 265. P. 8.

100 F. 2d 770, reversed.

CERTIORARI, 306 U. S. 629, to review the affirmance of a decree enjoining the prosecution of an action in the state court.

Mr. Paul Ware, with whom Mr. W. R. Brown was on the brief, for petitioners.

*The original opinion of the Court delivered December 4, 1939, which, on petition for rehearing, was withdrawn and replaced (308 U. S. 530) by the one here reported, appears in the Appendix, post, p. 703. For separate opinion of the CHIEF JUSTICE and MCREYNOLDS and ROBERTS, JJ., delivered December 4, 1939, see post, p. 9.