Circuit Judges. Before GILBERT, ROSS, and HUNT, for nothing. Clearly in view of this testimony the trial court would not have been justified in instructing the jury to find for the defendants. GILBERT, Circuit Judge. The defendant in error as plaintiff brought actions against the two insurance companies involved herein to recover from each the sum of $3,500 on a policy of insurance on fishing gear of the agreed value of $7,000 on the gas boat "Fairplay," from Seattle, Wash., to Ketchikan, Alaska, alleging in the complaints that the "Fairplay" was accidentally "destroyed by fire, and all the fishing gear thereon was badly burned and destroyed by fire, or so damaged that it sank and was totally lost." The jury found for the plaintiff for the full amounts sued for, and judgments were rendered accordingly. [1, 2] Error is assigned in each case to the denial of the defendants' motions for instructed verdicts, and it is now contended that there was no proof that all of the alleged insured cargo was placed on board the vessel or that the cargo on deck was not of greater value than limited by the policy, or that there was any loss of underdeck cargo, or an actual total loss. In discussing these assignments the defendants apparently overlook the rule that this appellate court is not authorized to weigh the evidence which was submitted to the jury, but is required only to ascertain from the record whether substantial evidence was submitted to the jury 'sufficient to sustain their verdict. In this case there was testimony of disinterested witnesses, as well as the testimony of the plaintiff, that the fishing gear was placed on board the vessel, and that its value was at least $7,000, and that five-sevenths of it was shipped under deck as required by the terms of the policy. As to the proof of loss of underdeck cargo and proof of actual total loss there was testimony that about 2 o'clock in the morning, while the vessel was anchored in Smallpox Bay, San Juan Island, fire broke out on the vessel, and, being unable to extinguish it, the master and crew took to a boat; that they stood watching and tried to save some nets from the vessel, but failed; that after burning 20 minutes the gasoline tank exploded, the vessel filled with water, and sank in about one hour; that nothing was saved from the fire except the fire extinguishers, a handsaw, and the skiff; that everything else was lost. One witness testified that all the fishing gear put on board the boat "was destroyed by fire," and that, if any of the nets were still there when the vessel sank, they would be good The judgments are affirmed. aff'd (2d) 911. NEW YORK & PENNSYLVANIA CO. et al. No. 2487. Carriers 195-Freight in shipment from foreign country payable at schedule rate in American money. The freight charges on a through shipment from a foreign country into the United States are payable at the rate fixed by the_tariff schedules published and filed with the Interstate Commerce Commission in money of the United States, regardless of its exchange value in money of the foreign country. Pennsylvania Company and others against A. B. Hayes, of Washington, D. C., and T. D. McGlathery, of Philadelphia, Pa., for plaintiffs. John Hampton Barnes, of Philadelphia, Pa., for defendants. DICKINSON, District Judge. This motion is urged on nine different grounds. The approach by which one not familiar with the business of international freight shipments nor with its nomenclature must reach the questions of law which arise is doubtless painfully academic to those who know the subject. Notwithstanding this, there is no other mode of approach for the uninformed mind. The first act of Congress (Act April 2, 1792, § 20, 1 Stat. 250 [Comp. St. § 6535]) by which our monetary system was established provided that our "money of account" should be "expressed" in words which by custom have been reduced to "dollars" and "cents." Our laws have further given substance to the things for which these words stand by defining what is their nominal value. The Canadian law has similar provisions, and it happens that their "money of account" is "expressed" in the same words as our own. This controversy has grown out of the fact that there is not merely a difference but 2 F.(2d) 858 a daily varying difference between the commercial or exchangeable value of a Canadian dollar and a dollar of the United States. As our law has undertaken to regulate freight payments by prescribing that the charges must be fair and reasonable, all are agreed that the Commission alone can determine what the proper charge is, and it is prescribed by a published tariff. When transportation is made partly over Canadian and partly over our territory, the charge is established, as we understand it, if the shipment goes under a through rate, by the "through rates being set out and contained in tariffs issued by the carriers operating in the Dominion of Canada, which said tariffs have been and are duly published and filed with the Board of Railway Commissioners for Canada and with the Interstate Commerce Commission of the United States." This means, as we interpret it, that if a shipment originates in Canada and is transported by a Canadian carrier to the international boundary line and is then taken over by a United States carrier (or by two or more of them in succession) and transported to its destination in Pennsylvania, the consignee paying the freight would be informed what the lawful charge was. He would, however, be informed by the use of the words "dollars and cents," or equivalent symbols and figures. It is clear enough that before he had a real knowledge of what he was doing he must learn whether the "dollars" in which he was to pay were Canadian dollars or our dollars. The laws of the respective countries would inform him of the difference, if there was any, in the nominal values of these dollars; but the commercial or exchangeable value of each could be learned only through the exchanges, and these values vary from day to day. Moreover, the shipper or consignee paying the freight is concerned only with the sum he pays, but the carriers are concerned not only with this sum but with its apportionment among the carriers. The practical fact stares us in the face that, under conditions in which Canadian money is of less exchangeable value than our own, if the shipper pays the freight in Canadian money he pays less than the consignee pays if he pays in our money. It is equally clear there would be a like gain or loss in the settlements between or among the carriers. As an administrative question, what should be done is affected by other considerations, among which is the effect upon shipments and the danger of the disruption of the relations of carriers with shippers and with each other now dealt with by a system which is the fruit of years of labor. The balancing of these interests calls for great nicety of adjustment. The Canadian Board has dealt with the problem, but our Commission has not. The former has met the complaints, which were felt to be well founded, by as fairly as possible but arbitrarily fixing what the rate of exchange is and when the freight is prepaid in Canadian money to permit a surcharge of an arbitrary percentage of the exchange thus determined. This additional charge, however, cannot be made if the freight is paid by the consignee in our money. We are thus, after this lengthy preamble, brought to the consideration of the bill and the ninth ground of dismissal. The defendants read the bill, as we read it, to aver as the sole cause of action (in the sense that the plaintiffs have no cause without this) that the defendants (one during one period and the other afterwards) unlawfully exacted payment of the tariff rates in money of the United States. It follows that if it was lawful for the defendants to have so done, the bill presents no cause of action. To make this entirely clear, there is no averment of the collection of a surcharge which could not lawfully be made when the tariff charges were paid in our money. The challenge of the bill is made in these words: "The contract, tariff and regulations under which the shipments transported must of necessity payment for can dollars." were call in Ameri We see no way of escape from this conclusion. The laws of the United States make it lawful for the shipper or consignee to pay a prescribed sum of money and unlawful for the collecting carrier to exact more or to accept less. The sum to be thus paid and accepted is the sum set forth in published tariffs. This sum is expressed in words, directly or through conventional symbols. The words thus used are "dollars" and "cents." The sole question thus becomes what do these words mean. What is the thing called a "dollar" which is to be paid. The word is defined by law. The act of 1792, already referred to, in effect declares that our "money of account" shall "be expressed in dollars or units, dimes or tenths, cents or hundredths and mills or thousandths," etc. Usage has shortened this by the disuse of all except "dollars" and "cents." This provision of the original act has never been changed. It is, of course, perfectly obvious that these words are mere words or mere verbiage or a mode of ex pression, but the words are words of the language of the United States, and we must use these words whenever we express values in monetary terms when the money is the money of the United States. We say we must use these words because there are no others. Congress, by other provisions of the laws, took the word "dollar" out of the domain of verbiage and gave it substance and made of it the name of a substantial thing. What the thing is, of which a "dollar" is the name, has varied from time to time, and we now have dollars which differ in their form embodiment; but under our present laws, whatever the form, each one of these dollars is a thing which has the same commercial or exchangeable value which a minted coin of 25.8 grains of gold 900 fine has (or would have if there was one) in the marts of trade. When a freight tariff calls for the payment of $100, we see no other thing which the carrier is to receive than what a creditor would receive in payment of a hundred dollar debt. All this, of course, has the flavor of the hornbooks, but it goes to the vitals of the cause of action set up in the bill. In reaching the conclusion stated, we are not unmindful of an at least seeming dilemma. If the delivering and collecting carrier receives the published rates in money of the United States, it is, when it comes to settle with the other carriers, confronted with a difficulty. If it transmits the Canadian charges in Canadian money, retaining the balance, it receives more than it would receive if the two kinds of money were on a parity and more than the tariff charges. If it transmits money of the United States, then the Canadian carrier receives more than it would receive if there was no difference in exchange, and likewise more than the Canadian tariff. We also do not lose sight of the thought of the injustice which is always wrought when there is a shift in the exchangeable value of money. The limits of an opinion forbid us to follow the very interesting discussion in which counsel for the plaintiffs has indulged. The remedy for the evil, if there be one, is however in the legislative and not the judicial hands. The fact is that the value of money is always in a state of flux and will be until some means has been devised to give it what is called "stability." There is not only the variations recorded in the foreign exchanges, but differences in exchangeable value at different times within the country issuing the money, evidenced by the figures which show the relation between its ex changeable value and the value of other things or the general price level as contrasted with its debt-paying value. In this sense $40 may discharge a hundred dollar debt at one time and $100 be required to pay a $40 loan at another. It may be due to what is commonly called a "depreciated currency" or the inability of a country to maintain the nominal value of its money. It may be due to natural causes which have affected the exchangeable value of that to which the value of the money has been referred. It may be due to changes in the law which establishes the nominal value of the money. Nothing is more common than the suspicion, however ill founded, that individuals possess and wield the power to work such changes at will and no one thing has called forth more bitter invectives. It is no fresh complaint. The prophet Amos, of old, called down maledictions upon the heads of those who made "the ephah small and the shekel great." The rate of foreign exchange may, on the other hand, be controlled wholly by the state of the trade between the two countries. In such case the difference would theoretically at least be measured by the cost of transporting gold in payment of trade balances. To whatever the difference may be due, and whatever its extent, we do not see that the fact that the difference works advantage to one or disadvantage to another changes the necessity of paying charges prescribed by law in the money of the country. Counsel has likewise brought into the discussion by way of analogue the line of cases dealing with promises to pay in the money of one country when the promise is redeemed or is reduced to judgment in another. The attempt in all these cases is to make what is paid or the judgment which represents payment the equivalent of what was promised. A law-writer has collected all these cases and discussed them in a recent pamphlet. There is no uniformity in the rulings made, except in the one feature that whatever is paid or the judgment which is rendered must be paid or the judgment expressed in the money language of the country of payment or suit. Of course, they all hold that the payment or judgment must be based upon the exchange values of the two moneys. This, however, is because foreign money is a commodity, and a promise to pay it is a promise to deliver a commodity. It necessarily follows that in assessing damages for a default, the exchangeable value of what was not delivered must be found and translated into the money of account 2 F.(2d) 861 of the country in which the judgment is rendered. The question before us is the different question of what shall be paid when our law commands the payment to be made in our dollars. As this disposes of the case, there is no need to discuss the other grounds of de 3. Navigable waters 34-State and county drainage districts not required to obtain approval of War Department. Under Barnes' Fed. Code 1919, §§ 9376, 9377, 9385 (Comp. St. §§ 9910, 9910a, 9918), relating to navigable waters, drainage district is not required to present its drainage plans to War Department for approval, nor can United States enjoin operation as nuisance because of failure to make such submission, though navigable waterway is somewhat obstructed by erosion and deposits caused by faulty construction. In Equity. Suit by the United States against the Brazoria County Drainage District No. 3 to abate public nuisance in navigable waters. Injunction denied. Harry Susman, Sp. Asst. Atty. Gen., for constructed by the district, the outlet of which into Chocolate Bayou was negligently and improperly constructed. On the facts there is practically no dispute. Chocolate Bayou is a navigable waterway. The drainage ditch was constructed without having first submitted plans to the War Department for approval. The operation of the ditch does cause a deposit and some filling in the stream, and to the extent of the fill some obstruction to navigation, and while some deposit of silt as attendant upon all drainage is inevitable, this ditch was so constructed as that a greater amount of washing and deposit occurred than was necessary. The government concedes that there is no common law of the United States which prohibits obstructions and nuisances in navigable rivers, or which would sustain a bill in equity for abatement; that such obstructions and nuisances are offenses against the laws of states within which the navigable waters lie, but they are not offenses against United States laws, unless such laws are found on its statute books. Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1, 8 S. Ct. 811, 31 L. Ed. 629; United States v. Rio Grande Irrigation Co., 174 U. S. 690, 19 S. Ct. 770, 43 L. Ed. 1136. It insists, however, that by appropriate statutes (Barnes' Federal Code 1919, §§ 9376, 9377, and 9385 (Comp. St. §§ 9910, 9910a, 9918) Congress has made express prohibition against such conditions and provided for an injunction against their continuance. The defendant asserts that, since the title to and all rights in and over streams within the confines of the state belong to that state, subject only to the right of the central government to make reasonable provision for the protection of commerce and navigation (McCready v. Commonwealth of Va., 94 U. S. 391, 24 L. Ed. 248; Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1, 8 S. Ct. 811, 31 L. Ed. 629; United States v. Rio Grande Irrigation Co., 174 U. S. 690, 19 S. Ct. 770, 43 L. Ed. 1136), it is not sufficient for the United States to point to statutes. couched in general terms; but it must, when seeking to restrain a state or subdivision, put its finger on a definitive statute of precise application, and show that its prohibitions have been transgressed. [1] It must be conceded that, where conflicting claims of sovereignty between the state and the United States are involved, as here, the effort of the court must be to reconcile the claims of both, if possible, without striking either down. district to present its drainage plans to the War Department before they put them into operation, and that, such duty being absent, the government cannot enjoin the operation of the district for failure to make such submission. The injunction prayed for will therefore be denied, at the cost of the United States. affed (ad) 1122. F ternal Revenue Collector. [2] Conceding the paramount right of the United States by appropriate legislation to prevent even states from interfering with commerce and navigation, it must also be equally conceded that the primary right in streams belongs to the state in which they lie, and that of the rights of the state in such streams none is more paramount than that of drainage. The power and obligation of drainage resides in and may be exercised by the state, or any of its legally created subdivisions, and the fact that a stream is navigable does not in any manner impair or defeat this right, and no intention will be imputed to the United States to invade (District Court, D. Maryland. this province of the state, except where the language of the statute relied upon prevents any other construction; for, while it must be conceded that, if the operation of drainage ditches unreasonably destroys or impairs navigation, the United States may make provision for the cooperative use of the streams, which, while not impairing the right of the state, will preserve the right to navigation, it by no means follows that the right to use navigable streams for drainage can be prevented because such use necessarily brings about some fill. Considering the statutes invoked in the light of these views, I think it plain that the contention of the government must be rejected. haven, [3] Section 9376 provides: "It shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, [or] condition of any port, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers, and authorized by the Secretary of War prior to beginning the same." Section 9377 provides that the removal of any structure or parts of structures erected in violation of the provisions of said sections may be enforced by the injunction of any Circuit Court exercising jurisdiction in which such structures may exist. That these statutes prohibit the erection of structures in navigable streams, unless the plans therefor have been approved by the War Department, and authorize the removal of such structures placed without such approval, is plain. That they do not apply to washing or erosion caused by drainage, and that the prohibitory features of the statutes cannot be distorted so as to cover the operations of drainage districts, is equally plain. If this is the correct construction of the statutes, it follows that there was no duty upon the Brazoria county drainage 1924.) No. 1736. December 22, 1. Statutes 219-Departmental regulations not themselves clear not controlling in construction of ambiguous statute. The rule that, where statute is ambiguous, departmental construction is entitled to great weight, and ought not to be overruled without cogent reasons, is not controlling, where departmental regulations themselves are not clear. 2. Internal revenue 11-Tax on corporate certificates of no par value computed without reference to number of shares. Under Revenue Act Nov. 23, 1921, tit. 11, § 1100, and § 1107, schedule A-2 (Comp. St. Ann. Supp. 1923, §§ 6318i, 6318p), providing tax on certificates of stock, held that certificates of no par value are taxable on value of each certificate without regard to number of shares included therein. 3. Statutes 181 (2)-Construction causing injustice or inconvenience avoided, if possible. A construction that would occasion great inconvenience or produce inequality and injustice is to be avoided, if another more reasonable interpretation is possible. At Law. Action by the Commercial Credit Company against Galen L. Tait, Collector of Internal Revenue. On demurrer to complaint. Demurrer overruled. Sylvan Hayes Lauchheimer and Malcolm H. Lauchheimer, both of Baltimore, Md., for plaintiff. Amos W. W. Woodcock, U. S. Atty., of Baltimore, Md., and Nelson T. Hartson, Sol. of Internal Revenue, and Chester A. Gwinn, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., for defendant. SOPER, District Judge. The Commercial Credit Company, a Delaware corporation, on January 21, 1924, issued 48,000 additional shares of common stock, without par value, each share thereof having an actual value of $22.50. One hundred and thirtytwo certificates of stock were issued in varying amounts. The company paid as an issue tax, pursuant to title 11, § 1107, sched |