gence is sufficient to answer the question. A prisoner is entitled to know under what sentence he is imprisoned. The vague words in question furnish no means of knowing. They must be regarded as without effect, and as insufficient to alter the legal rule that each sentence is to commence at once, unless otherwise specially ordered.

"If this were a mere error, it could not be considered on habeas corpus. The judgments of the district and circuit courts in criminal cases are final, and cannot be reviewed by writ of error, and a mere error of law, if in fact committed, is irremediable; as much so as are the decisions of the supreme court. But if a judgment or any part thereof is void, either because the court that renders it is not competent to do so for want of jurisdiction, or because it is rendered under a law clearly unconstitutional, or because it is senseless, and without meaning, and cannot be corrected, or for any other cause, then a party imprisoned by virtue of such void judgment may be discharged on habeas corpus.

"I do not say that the judgment in this case is void. It is a good judgment for the term of five years' imprisonment on each indictment. Perhaps these terms might have been lawfully made to take effect successively, if the order of their succession had been specified, although there is no United States statute authorizing it to be done. But this was not done. No distinction was made between them in this respect, and, as neither of them was made to take effect after the one or the others, they all took effect alike; that is, from the time of the rendering of judgment. The additional words as to non-concurrence are void, because they are incapable of application. It is as if a man should be sentenced to successive terms of imprisonment on each of several indictments, and to hard labor, or to be kept on bread and water, during one of the terms, without specifying which. The latter part of such a sentence would clearly be void, for it could not be allowed to the jailer to exercise his discretion as to the application of the aggravated penalties.

"If there were any way in which the district court could amend its judgment, the case might perhaps be different. But I see no way in which it could do so without passing a new sentence, and that it could not do now, after the term has passed, and after one term of imprisonment has been suffered. What right would the court have now to determine that the expired term was

due to any particular indictment more than to either of the others?”

We conclude that the contention is without merit, that plaintiff in error was not sentenced to imprisonment for fifteen years but for a term of five years. There was no error in the proceedings. Affirmed.

JACOBS v. UNITED STATES. (Circuit Court of Appeals, Eighth Circuit. November 15, 1924.)

No. 6731.

Criminal law 814(3), 1186(4)-Refusal of instruction based on excluded evidence held not error, and, if error, harmless.

In a prosecution for violation of White Slave Traffic Act, in which defendant contended that woman transported came to Colorado to teach school, refusal to instruct that high school diploma was unnecessary in order to teach under Colorado laws held not error, though district attorney by questions, to which objection was sustained, sought to prove absense of such diploma; and, in any event. in view of caution to jury, it was too technical for

reversal, under Judicial Code, § 269, as amend

ed by Act Feb. 26, 1919 (Comp. St. Ann. Supp.

1919, § 1246).

was indicted under six counts for violation

of the White Slave Traffic Act (Comp. St. §§ 8812-8819). The first and second counts

were drawn under the second and third

sections, relating to the transportation in interstate commerce of women over the age of 18 years. The third, fourth, fifth, and sixth counts were drawn under section four of the act, relating to such transportation of any woman or girl under the age of 18 years.

The third count charges the inducing of one Florence Storer, a girl under 18 years of age, to go in interstate commerce by common carrier from Columbus, Ohio, to Conejos county, Colo., for immoral purposes. The fourth count charges the defendant

GRANGER et al. v. DAVIS.

(Circuit Court of Appeals, Sixth Circuit. December 8, 1924.)

No. 4040.

1. Carriers 100(1)-Yard held private yard of Hay and Grain Exchange, and not general railroad facility, within rules relating to demurrage.

Yard in which congestion causing delay occurred held private yard of Hay and Grain Exchange. of which consignees were members, and not general railroad facility, within rules nublished in demurrage tariff, relating to demurrage where car has been consigned to "other than a public delivery track."

2. Carriers

100(1)-Yard leased by Hay and Grain Exchange for benefit of members was "other than public delivery track" within demurrage tariff.

Railroad yard leased by Hay and Grain Exchange for benefit of its members, even though not strictly private, was "other than a public delivery track," within demurrage tariff.

3. Carriers 100(1)-Cars which yard of Hay and Grain Exchange could not hold held subject to demurrage, though not intended to be unloaded in plugging yard.

Cars consigned to members of Hay and Grain Exchange, whose yards could not hold them, necessitating storage by railroad elsewhere, though not intended to be unloaded in plugging yard of consignee, held subject to demurrage, under demurrage tariff, as "cars held for or by consignors or consignees for loading, unloading, forwarding directions, or for any other purposes."

4 .Carriers 100(1)-Demurrage rule held inapplicable to cars held out of plugging yard because of congestion.

Rule published in demurrage tariff held applicable merely to cars actually placed in plugging yard and bulletined there, not those held out because of congestion at plugging yard. 5. Carriers 100(1)—Director General's action for demurrage accrued on cars moved in intrastate commerce held within jurisdiction of district court.

Where demurrage accrued during federal control under tariff established by Director General, the District Court had jurisdiction, under Judicial Code, § 24 (Comp. St. § 991), in

Director General's action to recover demurrage, though on cars moved in intrastate traffic. 6. Carriers 100(1)-Yards held "private yard" of Hay and Grain Exchange, and not general "railroad facility."

Railroad yards leased by Hay and Grain Exchange for exclusive benefit of its members held "private yard" of such exchange and not general "railroad facility," though switching railroad collected inspection charge for privilege of partially unloading and examining, at such yard, cars consigned to them, and though members had agreed to accept notice of arrivals by bulletin.

by reason of delay which could have been avoided by placing cars of different consignees in strict order of arrival, in view of rule published in demurrage tariff, providing for recovery of demurrage on basis of amount that would have accrued but for railroad's errors. 9. Carriers 100(1)-Constructive placement permissible only after physical tender of car or circumstances excusing it.

Constructive placement held permissible only after physical tender of car or circumstances which excuse it, as inability to accept for causes attributed to consignee.

10. Carriers

100(1)-Rule as to recovery of demurrage where goods were reshipped to consignee's purchaser in same car after removal of portion for inspection, stated.

Where cars were not loaded or unloaded. but enough contents were removed to reveal character, and carload was then sold on sample, its contents replaced, and car reshipped to. purchaser, the free time for which consignee was not liable for demurrage held governed by rule published in demurrage tariff providing for free time where cars "are held" for consignment or reshipment in same car; the words "are held" meaning held either by consignors or consignees..

In Error to the District Court of the United States for the Western Division of the Southern District of Ohio; John W. Peck, Judge.

Action by James C. Davis, Director General of Railroads, as Agent operating the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company, against Dan B. Granger and another. Judgment for plaintiff, and defendants bring error. Affirmed.

John C. Hermann, of Cincinnati, Ohio (Herbert Ritchie, of Cincinnati, Ohio, on the brief), for plaintiffs in error.

Gregor B. Moorman, of Cincinnati, Ohio (Maxwell & Ramsey, of Cincinnati, Ohio, on the brief), for defendant in error.

Before DENISON, MACK, and DONAHUE, Circuit Judges.

MACK, Circuit Judge. This action was brought by James C. Davis, Director General, as Agent operating the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company, hereinafter designated as plaintiff, for certain demurrage charges accruing in January, February, April, and May, 1919, on cars of hay consigned to plaintiffs in error, hereinafter designated as defendants, under the uniform demurrage tariff, I. C. C. P. 1172. This tariff, duly filed, was applicable to both interstate and intrastate traffic. Judge PECK, to whom the case was submitted with waiver of jury, sustained the demurrage charges and rendered judgment therefor in the amount of $441.87, which the parties had stipulated was the amount due under Judge PECK'S rulings as to the law.

The 40 cars upon which the demurrage accrued were all consigned to defendants at the Hay and Grain Exchange tracks, known as their "plugging yard," at Front and Water streets, Cincinnati. These tracks, which had been used for general switching, were, by leases of 1917 and 1918, leased by the exchange from the Louisville, & Nashville Railroad, which owned them. Members of the Exchange were alone permitted to use the tracks. Shortly after the execution of the first lease, defendants sent a notice to the Agent of the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad, requesting that arrangements be made for bulletining at this plugging yard the arrival of "all cars of hay consigned to us and placed in this yard." The notice was pursuant to a rule which made consignee's agreement to accept such bulletining a condition thereto.

The large number of cars consigned to the members of the Cincinnati Hay and Grain Exchange resulted in an accumulation at one time of 532 cars, which the Hay and Grain Exchange refused to accept, except on the plugging tracks, although the capacity of these tracks was but 66 cars and the railroad offered to permit inspection on other tracks. When cars arrived, plaintiff issued constructive placement notices on such of them as the Hay and Grain Exchange members, including defendants, could not receive at their plugging yards and refused to accept elsewhere. On the cars for which there was room on the plugging tracks and which were delivered there, bulletins were posted in compliance with the request of the defendants and the other Hay Exchange members.

Of the entire number of cars that could not be placed on the Exchange plugging tracks, some had been brought to Cincinnati over the Baltimore & Ohio as the carrier line, others over the Big Four, as the carrier line, and still others by the plaintiff

itself.

As to the cars brought to Cincinnati by the Baltimore & Ohio and Big Four, plaintiff was the switching line over whose tracks the cars had to be transferred for delivery to this plugging yard.

After the cars arrived on the Big Four and the Baltimore & Ohio, they notified the plaintiff, as the switching line, of such arrival. Since the plaintiff could not receive the cars from the Baltimore & Ohio and Big Four, because of the inability of defendants to accept the cars at their plug; ging yard, plaintiff, as the switching line, was compelled to pay $1 per day per car to the carrier line holding the car.

The demurrage was computed, according to the testimony, from the first 7 a. m. after bulletining as to those placed in the plugging yard. As to the cars held out, and these alone are involved in this case, demurrage was computed from the first 7 a. m. after giving the constructive placement order, pursuant to rule 5, section A, rule 3, section D, and rule 2, section B-2, but not rule 2, section B-4, or rule 2, section A, as published in the Demurrage Tariff, 1. C. C. P. 1172, all of which rules are quoted in the footnote.1

We concur entirely in the reasoning and conclusions of Judge PECK as formulated in his original and supplementary opinions appended hereto, and add thereto only a few additional reasons in support thereof.

[1] 1. There is evidence of some preliminary arrangement between plaintiff and the

1 "Rule 5, Section A. When delivery of a car consigned or ordered to an industrial interchange track, or to other than a public delivery track, cannot be made on account of the inability of the consignee to receive it, or because of any other condition attributable to the consignee, such car will be held at destination, there, at the nearest available hold point, and or if it cannot be reasonably accommodated

written notice that the car is held and that this

railroad is unable to deliver, will be sent or given to the consignee. This will be considered constructive placement.

"Under this rule any railroad delay in making delivery shall not be computed against the consignee."

Instructions and Explanations.

consignees located on switching line are unable "Section A. This will apply to such cars as

to receive and which, for that reason, the switching line is unable to receive from carrier line. The carrier line will advise the switching line of point of shipment, car initals and number, contents and consignee, and if transferred in transit the initials and number of the original car; the switching line will notify consignee and put such cars under constructive place

ment.'

tracks. "Rule 2, Section B. Twenty-four hours' (one day) free time will be allowed. reshipment in same car received."

2. When cars are held for reconsignment or

"4. When cars are held in transit and placed for inspection or grading at stations where grain and hay must be inspected or graded, the consignee agreeing with the carrier in writing for file at the station to accept the bulletining of the cars as due and adequate notice of arriv al, the bulletins must be posted by 9:00 a. m. of each day, showing the previous twenty-four (24) hours' receipts and the free time (24 hours) is to be calculated from the first 7:00 a. m. thereafter. Where there is no agreement for bulletining of cars the free time must be day on which notice of arrival is sent or given calculated from the first 7:00 a. m. after the

to the consignee."

"Rule 2, Section A. Forty-eight hours' (two days) free time will be allowed for loading or unloading on all commodities."

Exchange before the leases were made. No claim is made that this arrangement contemplated a lease of the yard to the plaintiff for station purposes, for in that event the Exchange could not legally have retained exclusive rights therein. Furthermore, an agreement that as to members of the Exchange only, but not as to the public generally, the Exchange's own yards would be deemed a public station, would have involved an unlawful discrimination. But the evidence in respect thereto is contradictory; the trial judge was therefore in any event justified in disregarding defendants' version of the arrangement.

Finally, in our judgment, the leases to the Exchange and the absence of any lease from the Exchange to plaintiff conclusively establish that the yard was not a part of plaintiff's property for any purpose, but the private yard of the Exchange for the use of its members.

[2] 2. Even if the yard was not strictly private, it is clearly "other than a public delivery track" within the meaning of rule 5, section A, because by virtue of the leases only members of the Exchange had the legal right to use it, and they alone in fact did use it.

Whether or not all Cincinnati hay and grain dealers were or were not eligible to membership in the Exchange is immaterial; membership therein was not a legal condition to engaging in the business in Cincinnati.

[3] 3. Clearly, too, these cars, though not intended to be unloaded in the plugging yard, were cars subject to demurrage under rule 1 as "cars held for or by consignors or consignees for loading, unloading, forwarding directions or for any other purpose."

[4] 4. Not only are the provisions of rule 2, section B-4, inapplicable to cars not placed for inspection, but the testimony of the arrangement between the parties prior to the lease, if it could be considered, justified the conclusion that the parties intended what the rule itself fairly interpreted means -that only cars actually placed in the plugging yard and bulletined there, and not those held out because of congestion at the plugging yard, were to be governed by rule 2, section B-4, as to demurrage. Judgment affirmed.

of the railroad or a private facility of the Grain and Hay Exchange? (3) Is plaintiff entitled to demurrage on cars constructively placed by it while they were still in the yards of its connections and before they got upon its rails? (4) Is the claim subject to the defense that cars consigned to other members of the Exchange were "run around" the cars in question while upon constructive placement?

[5] 1. The demurrage accrued during federal control, under tariffs established by the Director General. Therefore, the case arises under a law of the United States relating to interstate commerce within paragraph 8, § 24, of the Judicial Code (Comp. St. § 991), and the court has jurisdiction. Northern Pacific Railway Co. v. North Dakota, 250 U. S. 135, 39 S. Ct. 502, 63 L. Ed. 897; L. & N. R. R. Co. v. Rice, 247 U. S. 201, 38 S. Ct. 429, 62 L. Ed. 1071; Adams Express Co. v. Croninger, 226 U. S. 491, 33 S. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; St. Louis, etc., Ry. v. Starbird, Administrator, 243 U. S. 592, 37 S. Ct. 462, 61 L. Ed. 917; N. Y. C. R. R. Co. v. Mutual Orange Distributors, 251 F. 230, 163 C. C. A. 386; Wells Fargo & Co. v. Cuneo (D. C.) 241 F. 726; Id. (D. C.) 241 F. 727.

[6] 2. The plaintiff does not own this yard. It is leased, at annual rental of $5,000, by the Grain and Hay Exchange from the Louisville & Nashville Railroad. The latter owns the land and also owns tracks, but does not operate them because of its failure to obtain right of way leading thereto.

The plaintiff serves the yard with its switch engine, hauling cars to and from its own yards and points of connection with the other railroads in and about Cincinnati. Therefore, for present purposes the Grain and Hay Exchange may be considered as the owner of the yard with its trackage. The plaintiff is entitled to use the yard only for the service of the members of the Exchange. Their business is the receiving of these carloads of hay, the partial unloading, inspection, and grading of the same, the sale thereof, and the reconsignment of the cars to the purchasers. The yard is 1 sually the destination of the original haul. It is clearly a private yard, and not a general railroad facility. The public has no right to any service whatever in it. That it fa

Filed February 6, 1923.

This case involves the following questions: (1) Has this court jurisdiction of so much of the claim as is for demurrage on cars moved in intrastate commerce? (2) Is the "plugging yard" an instrumentality

general yards, and is advantageous to the railroad, is beside the mark. The same is true in a greater or less degree of every private industrial switch.

With no small degree of force defendant points to the fact that the plaintiff collects