March 4, 1909, c. 321, § 332, 35 Stat. 1152 (Comp. St. § 10506). See Reynolds v. United States (C. C. A.) 282 F. 256. There was sufficient evidence from which the jury could find that the defendant Steir knew of the unlawful use which was being made of the premises which he had let to Pillar and that he acquiesced in it. As applied to all the facts disclosed by the evidence in this case, there was no error in denying the requests to rule which are assigned as error. While it is true that the evidence shows that Steir was not the owner of the premises, yet, it also appeared that, as agent for his wife, he let the premises to Pillar, who had occupied them for four or five months before the raid by the officers, and there was evidence from which the jury could have found that, as such agent, he had control of the premises and could have prevented any unlawful use of the same, which he did not do, but knowingly acquiesced in such use. Before WALKER, BRYAN, and KING, Circuit Judges. KING, Circuit Judge. This case comes to this court on an agreed statement of facts from a decision of the District Court of the Southern District of Georgia in a suit brought by the United States against D. R. Cook Clayton, formerly clerk of said court, and his bondsmen, to recover a sum received by him and his deputies as fees for paying out sums of money in composition cases in bankruptcy in the several divisions of said district; said fees having been allowed them by orders of said District Court. The claim is that said fees are not a part of the fees and emoluments of his office, and that he is not accountable to the United States therefor. Revised Statutes, § 833 (U. S. Comp. St. § 1394), provides that "every district attorney, clerk of a District Court, (clerk of a Circuit Court,) and marshal, shall, on the first days of January and July, in each year, or within thirty days thereafter, make to the Attorney General a written Under the facts disclosed, the jury were warranted in reaching the conclusion that Steir had knowledge concerning the unlawful use to which the tenement let by him return for the half year ending on said was put, and consented to the same. days, respectively, of all the fees and emolThe judgment of the District Court is uments of his office, of every name and affirmed. character," etc. UNITED STATES v. CLAYTON et al. (Circuit Court of Appeals, Fifth Circuit. October 13, 1924.) No. 4190. Clerks of courts 61-Should account for moneys received for paying out money in composition cases in bankruptcy. Under Rev. St. § 833 (Comp. St. § 1394), as amended by Comp. St. § 1398, fees received by clerk of District Court or deputies for paying out sums of money in composition cases in bankruptcy are for services such that government is entitled to an accounting of the same. In Error to the District Court of the United States for the Southern District of Georgia; Wm. H. Barrett, Judge. Action by the United States against D. R. Cook Clayton and others. Judgment for defendants, and plaintiff brings error. Reversed. F. G. Boatright, U. S. Atty., of Cordele, Ga., and B. S. Deaver, Asst. U. S. Atty., of Macon, Ga. Geo. S. Jones, Orville A. Park, and Jones, Park & Johnston, all of Macon, Ga., for defendants in error. In 1886 this section 833, Revised Statutes, was construed by the Supreme Court of the United States in the case of United States v. Hill, 120 U. S. 169, 7 S. Ct. 510, 30 L. Ed. 627. The court there held that, in view of the long construction of the statute as not embracing fees received by the clerk in naturalization suits, they would not disturb the same; such construction being of a doubtful statute. Thereupon said act was amended in 1902 by providing: "And the word 'emoluments' shall be understood as including all amounts received in connection with the admission of attorneys to practice in the court, (all amounts received for services in naturalization proceedings, whether rendered as clerk, as commissioner, or in any other capacity,) and all other amounts received for services in any way connected with the clerk's office." 32 Stat. at p. 475, U. S. Comp. Sts. § 1398. While in this case the orders allowing these commissions are in many cases to the designated individuals, they are only for such persons as are deputy clerks of said court, and in some instances the orders are to no designated persons, but to the clerk or his deputies. A proceeding by composi tion in bankruptcy is provided for by the 2 F.(2d) 151 Bankruptcy Act. It is a proceeding conIt is a proceeding conducted under orders of the court, it does not take effect until approved by order of the court, and if disallowed by him the composition fails. The payment of money for the composition is under the order of the court. The proceeding for confirmation of such composition must be filed in the clerk's office in the bankruptcy proceedings. We therefore think that the allowances made in these cases, for services in paying out this money, were certainly for services in some way connected with the clerk's office, and fell within the provisions of Compiled Statutes, § 1398, and that the government is entitled to an account of the same from the clerk. the plaintiff in error, was engaged in ascending to an upper berth, which he had purchased for a journey from the city of Birmingham, Ala., to New Orleans. The allegation of negligence is in the manner in which the defendant's agent placed the ladder, causing it to collapse when the plaintiff put his weight on it and endeavored to sit in said berth. The defendant, the Pullman Company, demurred to the petition as not setting forth a cause of action against it, which demurrer was overruled. The judgment is therefore reversed. PULLMAN CO. v. CUTTLE. (Circuit Court of Appeals, Fifth Circuit. October 28, 1924.) No. 4321. 1. Carriers 416 Declaration in action against Pullman Company for negligent placing of ladder against upper berth held to state prima facie case. Declaration alleging negligence of Pullman Company's servant in placing ladder for plaintiff's use in ascending to upper berth held to state prima facie case. 2. Carriers 416-Evidence held sufficient to go to jury on question of negligence of Pullman Company's servant. Evidence held sufficient to go to jury on question of negligence of Pullman Company's servant in manner of placing ladder for plaintiff's use in ascending to upper berth. In Error to the District Court of the United States for the Northern District of Georgia; Samuel H. Sibley, Judge. Action by M. C. Cuttle against the Pullman Company. Judgment for defendant, and plaintiff brings error. Affirmed. Albert Howell, Jr., and Mark Bolding, both of Atlanta, Ga. (Dorsey, Brewster, Howell & Heyman, of Atlanta, Ga., on the brief), for plaintiff in error. Geo. Westmoreland, of Atlanta, Ga. (J. Caleb Clarke and John L. Westmoreland, both of Atlanta, Ga., on the brief), for defendant in error. Before WALKER, BRYAN, and KING, Circuit Judges. KING, Circuit Judge. This is a suit for personal injuries alleged to have been sustained by a fall from a ladder upon which the defendant in error, at the solicitation of When the evidence was closed, the defendant, the Pullman Company, moved the court to grant a compulsory nonsuit and dismiss the case, on the ground that there was no evidence to authorize a verdict, and that the evidence showed that the plaintiff was guilty of contributory negligence in bringing about the injuries complained of, which motion was overruled, and a verdict for the plaintiff for $1,000 rendered. [1] The evidence showed that the plaintiff called upon the porter of the car to place a ladder for him to ascend the berth. Thereupon the porter directed another employee of the company to place said ladder, which was of the usual make and kind used by said company. The plaintiff ascended said ladder, and while in the act of getting into his berth the ladder collapsed and fell, causing the plaintiff to fall and hurt his back and legs. There was no proof to show that the ladder was of an unusual kind or different structure from usual. There was proof to the effect that it would not have fallen if properly extended for placing. and the demurrer to it was properly overThe declaration made a prima facie case, ruled. [2] There was sufficient evidence offered to take the case to the jury, and the court properly overruled the motion to nonsuit the case and dismiss the same. We therefore conclude that the judgment below should be affirmed. Affirmed. PACIFIC TELEPHONE & TELEGRAPH CO. v. STAR PUB. CO. (District Court, W. D. Washington, N. D. October 20, 1924.) No. 427. 1. Courts 508 (1) — Jurisdictional requisites of citizenship and amount not necessary to warrant injunction in federal court against proceedings by state court in ancillary action. If proceeding in state court is ancillary to case in federal court, latter may issue restraining order against prosecution without violating 2. Courts 493 (1)-Avoidance of conflict between courts inspired statute vesting court first acquiring jurisdiction with power to adjudicate. Avoidance of unseemly conflict between courts whose jurisdiction may embrace same property or persons inspired Rev. St. § 720 (Comp. St. § 1242), and possession of res vests court which first acquired jurisdiction with power to adjudicate controversy, whether court takes possession of specific property or not. 3. Courts 508(2)-Action in federal court regarding telephone rates held proceeding in rem, warranting restraining order against suit by telephone user in state court. Action by telephone company against director of public works, supervisor of public utilities, and others, asserting rates were confiscatory, was proceeding in rem, and not in personam, and subsequent action by telephone user against telephone company was ancillary, and could be restrained by federal court. 4. Judgment 702-Department of Public Works in Washington representative of telephone users, who are bound by decree in rate case. Department of Public Works in Washing; ton is representative of telephone users, and they are bound by decree entered in rate case against such department. 5. Courts 99(1)-Decision on entry of restraining order in rate case is law of case until final hearing. Rev. St. 720 (Comp. St. § 1242), regardless of the clerk of this court, and served upon of lack of jurisdictional requisites of diversity the defendant notice of such removal; that of citizenship and amount involved. no application has been made by the defendant to remand the cause to the state court, and that counsel for the defendant in open federal court stated that no motion to remand would be made; that the said suit is a suit of a civil nature in equity, and a controversy between citizens of different states, and exceeds in value the sum of $3,000, exclusive of interest and costs; that the notice of the petition and the petition, and the bond on removal, were timely served and timely filed; that, notwithstanding such removal, the defendant asserts the jurisdiction of the state court, and threatens to, and will unless restrained, cause proceedings to be taken in said suit in said state court subjecting the plaintiff to double and expensive litigation; that on April 24, 1923, plaintiff commenced an action in this district, Southern division, against E. V. Kuykendall et al., and the Attorney General of the state, affecting the telephone rates involved in the state court suit aforesaid, asserting that the rates were confiscatory, and that jurisdiction in this court fully vested on such date; that thereafter, on July 23, 1924, an injunction order was entered enjoining the director of public works, supervisor of public utilities, and supervisor of transportation, and the Attorney General, from attempting to compel the plaintiff to maintain and keep in force the rates and charges prescribed by the Department of Public Works of the state of Washington, and from attempting to interfere with the plaintiff in immediately putting into effect any rates "not in excess of those set forth in said Schedule Exhibit F," and that bond was thereafter filed as by the order provided; that the rates charged for phone service for the month of August, which are asserted to be illegal, were charged pursuant to order of this court, and that the injunctive order has not been appealed from or modified; that the plaintiff has complied with the terms of the order; that the institution and prosecution of said cause in the said state court is "wrongful interference with the possession of this court and its exclusive jurisdiction over the property owned by the plaintiff and devoted to the public service of the city of Seattle, Washington, including the right to charge, receive, and retain the rates authorized by said injunctive or Decision on entry of restraining order in rate case is law of case until final hearing, unless reversed or modified by appellate court. In Equity. Suit by the Pacific Telephone & Telegraph Company against the Star Publishing Company. On motion for temporary injunction. Motion granted. The plaintiff alleges that it is a corporation under the laws of the state of California, and the defendant a corporation under the laws of the state of Washington, with its principal place of business in the city of Seattle; that on August 6, 1924, defendant commenced an action in the state court by petition and affidavit praying a writ of mandate directing the plaintiff to furnish telephone service at rates not in excess of those prescribed by the ordinance and order set out, and that thereafter plaintiff served on the defendant and filed notice of and a proper and sufficient petition for removal of said suit to this court, and therewith filed in the superior court a proper and sufficient bond on removal; that the sufficiency of the bond was approved by one of the judges of the state court, and that an order was entered by the judge of the said court denying the petition for removal; that on the 13th of August this plaintiff filed a certified copy of the record of said cause in the office der." Otto B. Rupp, of Seattle, Wash., Post, Russell & Higgins, of Spokane, Wash., and 2 F.(2d) 151 Pillsbury, Madison & Sutro, of San Fran- 214, 38 S. Ct. 460, 62 L. Ed. 1084. That cisco, Cal., for plaintiff. the rate case, supra, is not a proceeding in Herr, Bayley & Croson, of Seattle, Wash., personam, but essentially in rem, is stated for defendant. 2 NETERER, District Judge (after stating the facts as above). [1, 2] The issue here, telephone rates, has been before the court in several relations. P. T. & T. Co. v. Dept. of Pub. Wks., F. (2d) -;2 Id., 265 U. S. 196, 44 S. Ct. 553, 68 L. Ed. 975; and State ex rel. Seattle v. Dept. of Pub. Wks. et al., - F. (2d), decision filed Sept. 25, 1924. It is contended that the restraining order should not issue because violative of section 720, R. S. (Comp. St. § 1242). If this proceeding is ancillary to the case, supra, now pending in this court, the defendant may be enjoined. Traction Co. v. Mining Co., 196 U. S. 239, 25 S. Ct. 251, 49 L. Ed. 462; C. & O. Ry. Co. v. McCabe, 213 U. S. 207, 29 S. Ct. 430, 53 L. Ed. 765; C. & O. Ry. Co. v. McDonald, 214 U. S. 191, 29 S. Ct. 546, 53 L. Ed. 963; C. & 0. Ry. Co. v. Cockrell, 232 U. S. 146, 34 S. Ct. 278, 58 L. Ed. 544. And in an an eillary action, jurisdictional requisite, diver sity of citizenship, and amount involved, are not necessary. M., K. & T. Ry. Co. v. Chappell (D. C.) 206 F. 688; McCabe v. Guaranty Trust Co., 243 F. 845, 156 C. C. A. 357. See also cases in margin.1 The avoidance of unseemly conflict between courts whose jurisdiction may embrace the same property or persons inspired section 720, supra, and the possession of the res vests the court which first acquired jurisdiction with power to adjudicate the controversy. F. L. & T. Co. v. Lake Street E. R. Co., 177 U. S. 51, 20 S. Ct. 564, 44 L. Ed. 667. And this applies whether the court takes possession of specific property or not. Looney v. E. T. Ry. Co., 247 U. S. 1 Johnson v. Christian, 125 U. S. 642, 646, 8 S. Ct. 989, 1135, 31 L. Ed. 820; New Orleans v. Fisher, 180 U. S. 185, 196, 21 S. Ct. 347, 45 L. Ed. 485; First Nat. Bank v. Salem Capital Flour Mills Co. (C. C.) 31 F. 580, 583; Lamb v. Ewing, 54 F. 269, 273, 4 C. C. A. 320; Broadis v. Broadis (C. C.) 86 F. 951, 954; Widaman v. Hubbard (C. C.) 88 F. 806. 812; Everett v. School Dist. (C. C.) 102 F. 529, 530; Brooks v. Laurent, 98 F. 647, 652, 39 C. C. A. 201; Pac. R. R. of Mo. v. Mo. Pac. Ry. Co.. 111 U. S. 505, 522, 4 S. Ct. 583, 28 L. Ed. 498; Minn. Co. v. St. Paul Co., 2 Wall. 609, 633, 17 L. Ed. 886; Central Trust Co. v. Bridges, 57 F. 753, 762, 6 C. C. A. 539; Preston v. Calloway, 183 F. 19, 20, 105 C. C. A. 311; Brun v. Mann, 151 F. 145, 150, 80 C. C. A. 513, 12 L. R. A. (N. S.) 154; Julian v. Central Trust Co., 193 U. S. 93. 113, 24 S. Ct. 399, 48 L. Ed. 629; Carey v. Houston & Texas Ry. Co.. 161 U. S. 115, 16 S. Ct. 537, 40 L. Ed. 638; Rochester, etc., Ins. Co. v. Schmidt (C. C.) 126 F. 998, 1003. 'Opinions not available, but see Table of Cases in subsequent volumes. in People's Gaslight & Coke Co. v. City of Chicago (C. C.) 192 F. 398, and the same thought is expressed by the Supreme Court in Missouri v. Chicago, B. & Q. R. R. Co., 241 U. S. 533, 36 S. Ct. 715, 60 L. Ed. 1148, where it sustained the complaint of a railroad as to the confiscatory character of rates fixed by state law and the right to test the rates as a unit, claiming injunctive relief against the state law in its entirety and the officers having to do with its enforcement, citing Reagan v. F. L. & T. Co., 154 U. S. 362, 14 S. Ct. 1047, 38 L. Ed. 1014; Smyth v. Ames, 169 U. S. 466, 18 S. Ct. 418, 42 L. Ed. 819; Ex parte Young, 209 U. S. 123, 28 S. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764; Willcox v. Consolidated Gas Co., 212 U. S. 19, 29 S. Ct. 192, 53 L. Ed. 382, 48 L. R. A. (N. S.) 1134, 15 Ann. Cas. 1034; Missouri Rate Case, 230 U. S. 474, 33 S. Ct. 975, 57 L. Ed. 1571; Norfolk & Western Ry. v. Con ley, 236 U. S. 605, 35 S. Ct. 437, 59 L. Ed. 745. In the Missouri Rate Case, 230 U. S. 474, 33 S. Ct. 975, 57 L. Ed. 1571, a restraining order was obtained against the enforcement of the Freight and Passenger Act of 1905 of Missouri. While the issue was pending before the master, to whom it was referred his findings and conclusions was filed, the to take testimony, and before a report of acts fixing certain minimum and maximum Missouri Legislature, in 1907, passed certain rates (intrastate) for named commodities. filed in the state court against the railway On the day these acts took effect bills were company by the state, requiring them to give effect to the new prescribed rates. The companies filed a supplemental bill in the action pending in the federal court, praying that the enforcement of the 1907 act be enjoined. The state contended that it had brought suit and the state court's jurisdiction was then exclusively vested. The federal court-(C. C.) 168 F. 317-denied this contention. The Supreme Court said, at page 496 (33 S. Ct. 978): "Neither can it be said that the state court had prior jurisdiction. That the state filed in one of its courts bills for the enforcement of the act of 1907, before the actual filing of the supplemental bills, may be true; but the application for leave to file the supplemental bills was pending in the Circuit Court of the United States, and action was suspended, merely to give opportunity for hearing, the court meanwhile restraining the enforcement of the new rates. In view of the pending bills assailing the act of 1905, the substantial identity of the question arising under the acts of 1907, and the pendency of the motion for leave to file supplemental bills, we are clearly of opin ion that priority of jurisdiction belonged to the United States and the state court could not properly oust that jurisdiction." In Re Engelhard, 231 U. S. 646, 651, 34 S. Ct. 258, 259 (58 L. Ed. 416) the court said: "It is the universal practice, sustained by authority, that the only mode of judicial relief against unreasonable rates is by suit against the governmental authority which established them, or is charged with the duty of enforcing them. As was said by Mr. Justice Miller in Chicago, Mil. & St. P. Railway Co. v. Minnesota, 134 U. S. 418, 460, it was not competent for each individual having dealings with the regulated company 'to raise a contest in the courts over the questions which ought to be settled in this general and conclusive way.'" To the same effect is Ex parte Young, 209 U. S. 123, 161, 165, 28 S. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764. [3] This case is clearly ancillary to the rate case, supra. The right of the parties there in issue cannot be determined in an other court without conflicting with the jurisdiction here, and until this jurisdiction is exhausted no other court's jurisdiction may be invoked. See Starr v. Chicago, R. I. & P. Ry. Co. (C. C.) 110 F. 3, 6, 8, 9, and cases cited. Among other things, at page 6, the Circuit Court said: "The foregoing principle is so indispensable to the harmonious working of our systems of federal and state jurisprudence that neither the Eleventh Amendment to the Constitution, nor section 720 of the Revised Statutes, which prohibits the issue by a court of the United States of a writ of injunction to stay proceedings in any court of a state, can be permitted to interfere with its maintenance. The court which first obtains jurisdiction of the subject-matter and of the necessary parties to a suit may, and if it discharges its duty it must, if necessary, issue its injunction to prevent any interference by any one with its effectual determination of the issues, and its administration of the rights and remedies involved in the litigation" (citing cases). A case on all fours with the case in issue is Looney v. Eastern Texas Ry. Co., supra. Justice Clarke, at page 221 (38 S. Ct. 462), said: "The use of the writ of injunction, by federal courts first acquiring jurisdiction over the parties or the subject-matter of a suit, for the purpose of protecting and preserving that jurisdiction until the object of the suit is accomplished and complete justice done between the parties, is familiar and long-established practice. ⚫ [citing cases]. So important is it that unseemly conflict of authority between state and federal courts should be avoided, by maintaining the jurisdiction of each free from the encroachments of the other, that section 720 has repeatedly been held not applicable to such an injunction" (citing cases). See, also, cases cited below.2 [4] The Department of Public Works is the representative of the telephone users, and the subscribers are bound by decree entered in the rate case, supra. The Missouri Rate Cases, 230 U. S. 474, 33 S. Ct. 975, 57 L. Ed. 1571; In re Engelhard, supra; Ex parte Young, supra; Mo. v. C., B. & Q. R. R. Co., supra; City of N. Y. V. Consolidated Gas Co., 253 U. S. 219, 40 S. Ct. 511, 64 L. Ed. 870. The court, in the case of New York v. New York Tel. Co., 261 U. S. 312, at page 315, 43 S. Ct. 372, 373 (67 L. Ed. 673) said: enjoin the orders lowering rates was the "The necessary defendant in the suit to Public Service Commission, whose orders they were." S. Ct. 259), the court said: "It is the universal practice, sustained by authority, that the only mode of judicial re 2 Prout v. Starr, 188 U. S. 537, 544, 23 S. Ct. 398, 47 L. Ed. 584; Iron Mountain R. Co. v. City of Memphis, 96 F. 113, 131, 132, 37 C. C. A. 410; Brun v. Mann, 151 F. 145, 149, 150, 80 C. C. A. 513, 12 L. R. A. (N. S.) 154; Dietzsch v. Huidekoper, 103 U. S. 494, 497, 26 L. Ed. 497; Swift v. Black Panther Oil & Gas Co., 244 F. 20, 22, 156 C. C. A. 448; St. Louis-San Francisco Ry. Co. v. McElvain (D. C.) 253 F. 123; Lang v. Choctaw, Okla. & Gulf R. Co., 160 F. 355, 87 C. C. A. 307; Libbey Glass Co. v. McKee Glass Co. (D. C.) 216 F. 172, 178, affirmed 220 F. 672, 136 C. C. A. 314; Jackson v. Parkersburg & O. V. Elec. Ry. Co. (D. C.) 233 F. 784, 787; Fid. Ins.. etc., Co. v. Norfolk & W. R. Co. (C. C.) 88 F. 815, 820; Fisk v. R. R. Co., 10 Blatchf. 520, Fed. Cas. No. 4,830; Mercantile Trust & Dep. Co. v. Roanoke & S. Ry. Co. (C. C.) 109 F. 3, 6; Phipps v. Chicago, R. I. & P. Co. (C. C. A.) 284 F. 945, 955, 28 A. L. R. 1184; Gunter v. Atl. Coast Line Co., 200 U. S. 273, 291, 26 S. Ct. 252, 50 L. Fd. 477; Wadley v. Blount (C. C.) 65 F. 667, 675. |