the composition, the title to these moneys and accounts under the Bankruptcy Act at once revested in the bankrupt; and such moneys and accounts might have been forthwith handed over to the bankrupt by the bankers without asking the permission of the trustee, or the bankrupt without the consent of the trustee could have maintained an action against the bankers to recover the same. We cannot import into the act what Congress left out of it. The language of the act is that upon confirmation of a composition the title of the bankrupt to his property shall "thereupon revest in him."

The funds which have been attached, and which the trustee is seeking to reach, have never been in the actual custody of the trustee, and formed no part of the sum deposited in the composition proceeding, and the trustee has no right now to reduce them into his possession. The confirmation of the composition operated to supersede the proceedings in bankruptcy, and the Bankruptcy Act operated automatically to revest the bankrupt with the title to his property. Judgment affirmed.

(223 Fed. 421)

UNITED COPPER SECURITIES CO. et al. v. AMALGAMATED

COPPER CO. et al.

(Circuit Court of Appeals, Second Circuit.

No. 219.

April 13, 1915.)

CORPORATIONS 204-STOCKHOLDERS-RIGHT TO SUE IN NAME OF CORPORATION.

A stockholder cannot maintain an action at law in the name of the corporation to recover money damages or specific property, on the refusal of the corporation to bring the action.

[Ed. Note.

Dec. Dig.

For other cases, see Corporations, Cent. Dig. §§ 783-790; 204.]

In Error to the District Court of the United States for the Southern District of New York.

F. E. M. Bullowa, of New York City, for plaintiffs in error. Louis Marshall and Shearman & Sterling, all of New York City (John A. Garver, of New York City, of counsel), for defendants in

error.

Before COXE, WARD, and ROGERS, Circuit Judges.

WARD, Circuit Judge. This is an action at law by two stockholders of the United Copper Company, on behalf of themselves and all other stockholders of that company, averring that they had asked the defendant the United Copper Company to bring the suit and it had refused to do so, to recover treble damages under section 7 of the Sherman Act of July 2, 1890 (26 Stat. 210, c. 647), from certain of the individual and corporate defendants on the ground of conspiracy to create a monopoly in the interstate commerce and trade in copper produced in the state of Montana. The complaint alleges that certain of the defendants obtained the control of a large number of copper

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

mines in that state, theretofore competing with each other, and operated them as a trust by means of the defendant the Amalgamated Copper Company; that there were at the same time a number of other copper companies in Montana controlled by one F. A. Heinze and his brothers, which in the year 1902 were put under the control of the defendant the United Copper Company, from and after which date the defendant the Amalgamated Copper Company and others of the defendants combined to destroy its business and so get absolute control of the interstate commerce and trade in the copper industry of Montana. By a series of illegal acts, not necessary to specify, it was further alleged that the conspirators did procure the sale to them of all but one of the copper mines controlled by the defendant the United Copper Company at a price less than one-third of their value, leaving only a few insignificant independent companies mining and dealing in copper in Montana, and have destroyed the credit and standing of the United Copper Company and greatly reduced the profits of its business.

Demurrers were filed by the defendants on the ground that the complaint did not state facts sufficient to constitute a cause of action, and that the plaintiffs' remedy, if any, was in equity. Judge Lacombe, upon motion to dismiss the complaint on the pleadings under section 547 of the Code of Civil Procedure of the state of New York, sustained the demurrers and dismissed the complaint, whereupon the plaintiffs sued out this writ of error.

It is quite clear, and, indeed, the plaintiffs concede it to be so, that the cause of action set up belongs to the United Copper Company, defendant. The cause of action is one conferred by section 7 of the Sherman Act in tort for treble damages. We have held that it cannot be maintained at all in equity. Fleitman v. United Gas Co., 211 Fed. 103, 128 C. C. A. 31. The sole question therefore is: Can a stockholder maintain it in right of the corporation at law? The case of Metcalf v. American School Furniture Co. (C. C.) 108 Fed. 909, affirmed 113 Fed. 1020, 51 C. C. A. 599, greatly relied upon by the plaintiffs, does not apply because in it the complainant sought to recover treble damages for herself, individually, together with equitable relief for the corporation. The bill for that reason was dismissed as multifarious. It must be admitted that in Sheridan v. Electric Light Co., 38 Hun (N. Y.) 396, a stockholder sued at law upon a cause of action belonging to the corporation which had refused to do so. Curiously enough, Daniels, J., sustained the action on the ground that a stockholder had such a right in equity:

"For where the officers of a corporation charged with that duty refuse to prosecute an action in a proper case, or the corporation itself is under the control of the officers whose misconduct is to be made the subject of the action, the stockholders 'have a standing in a court of equity to sue in their own names, making the corporation a party defendant.' Brinckerhoff v. Bostwick, 88 N. Y. 52, 56; Young v. Drake, 8 Hun, 61; Hawes v. Oakland, 104 U. S. 450 [26 L. Ed. 827].”

We are not persuaded by Morrill v. Little Falls Co., 46 Minn. 260, 48 N. W. 1124, which does sustain the plaintiffs' contention. We think that a stockholder's right to assert a cause of action belonging

to the corporation depends upon allegations that the corporation is acting fraudulently, in breach of trust, or ultra vires. For this reason he must go into equity. On the other hand, there appears to us to be no ground for holding that stockholders may bring actions at law in the name of the corporation to recover money damages or specific property whenever the corporation refuses to do so. Ames v. American Telegraph & Telephone Co. (C. C.) 166 Fed. 820. Such a practice would be likely to create great confusion and tend unnecessarily to take away from the corporation the management of its own affairs. The judgment is affirmed.

(223 Fed. 423)

WILLIAMS v. POTTER et al.

(Circuit Court of Appeals, Second Circuit. April 13, 1915.)

No. 180.

1. PILOTS 5 LICENSES-REVIEW OF ACTION OF INSPECTORS.

The courts are without jurisdiction, on appeal or writ of error, to review the findings of the steamboat inspectors on an application for a pilot license, and the most they can do is to see that the inspectors act within their jurisdiction, and that the constitutional and statutory rights of citizens are not impaired.

[Ed. Note. For other cases, see Pilots, Cent. Dig. §§ 5, 6; Dec. Dig. ~5.]

2. PILOTS 5-RULES OF BOARD OF SUPERVISING INSPECTORS—VALIDITY.

Rule 7, § 46, of the Rules of the Board of Supervising Inspectors, providing that an applicant for pilot license whose application has been refused shall not be re-examined within a year after the first examination, is not in violation of any statutory provision, and is reasonable and valid.

[Ed. Note. For other cases, see Pilots, Cent. Dig. §§ 5, 6; Dec. Dig. ~~5.]

Appeal from the District Court of the United States for the Northern District of New York.

For opinion below, see 210 Fed. 318.

F. R. Williams, of Syracuse, N. Y., pro se.

John H. Gleason, of Albany, N. Y., and H. V. Borst, Asst. U. S. Atty., of Amsterdam, N. Y., for appellees.

Before LACOMBE, WARD, and ROGERS, Circuit Judges.

WARD, Circuit Judge. This is the last step in a long contest between the complainant and the United States inspectors of steam vessels. He originally applied to the inspectors of the district of Oswego, New York, for a pilot's license, who refused to examine him. on the ground that he had not had three years' experience on deck, as required by rule 5, § 46, of the Rules of the Board of Supervising Inspectors. This decision was, on appeal, affirmed by the supervising inspector at Cleveland, and subsequently by the supervising inspector general at Washington. Thereupon the complainant

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 139 C.C.A.-2

applied to the District Court of the United States for the Northern District of New York for an order compelling the inspectors to give him the examination which was denied. On appeal we affirmed this order, on the ground that the District Court had no jurisdiction in the premises. Williams v. Molther, 180 Fed. 709, 103 C. C. A. 491. Thereupon he filed a bill in the United States Circuit Court for the Northern District of New York, praying that the rule in question be declared invalid, the inspectors enjoined from enforcing it and from refusing to give him an examination, which dismissed the bill. 189 Fed. 700. We reversed the decree on the ground that the provision of the rule in question was in contradiction of section 4442, U. S. Rev. Stat. (Comp. St. 1913, § 8204), and therefore was not authorized under section 4405 (Comp. St. 1913, § 8159). Williams v. Molther, 198 Fed. 460, 117 C. C. A. 220. In accordance with this decree the local inspectors of the Oswego district did give the complainant an examination, and rejected his application which, on appeal to the supervising inspector at Cleveland, was affirmed. The latter, however, because the complainant said that he was excited when examined by the local inspectors, gave him an independent examination, with the same result. Thereupon the complainant applied to the inspectors for the Oswego district for a re-examination, who re fused it on the ground that a year had not elapsed from his last examination, as required by rule 7, § 46, adopted by the board of supervising inspectors. Thereupon the complainant filed this bill, charging that the defendants had maliciously conspired to refuse him a license, notwithstanding his competency, and asking that he be declared qualified and a license be issued to him, that the whole body of rules adopted by the board of supervising inspectors be declared invalid, especially rule 5, § 46, and that treble damages be awarded to him.

[1, 2] The courts have no authority to review the findings of the steamboat inspectors by appeal or writ of error. The most they can do is to see that the inspectors act within their jurisdiction, and that the constitutional and statutory rights of citizens are not impaired. Judge Ray very properly held that the courts cannot substitute their judgment for that of the inspectors; that there was no evidence whatever of any conspiracy against the complainant; that rule 7 was entirely consistent with the provisions of title 52, U. S. Rev. Stat., and therefore within the powers of the board of supervising inspectors to adopt under section 4405.

The decree is affirmed.

(223 Fed. 425)

HARMON v. UNITED STATES.

(Circuit Court of Appeals, First Circuit. May 26, 1915.)

No. 1122.

ALIENS 69-CERTIFICATE-ISSUANCE.

Following the decision of the Circuit Court of Appeals in the Second Circuit, according to our usual practice, the decision of the Second Circuit in Yunghauss v. United States, 218 Fed. 168, 134 C. C. A. 67, is followed, and the decree of the District Court in this case of March 8, 1915, is affirmed.

[Ed. Note.-For other cases, see Aliens, Cent. Dig. §§ 147-153; Dec. Dig. 69.

Decisions of courts as authority in other co-ordinate courts, see note to F. B. Vandegrift & Co. v. United States, 97 C. C. A. 472.]

Appeal from the District Court of the United States for the District of Massachusetts; Jas. M. Morton, Jr., Judge.

Application by Whitney Earle Harmon for naturalization. From a decree dismissing the petition, petitioner appeals. Affirmed.

John L. Warren, of Boston, Mass., for appellant.

Leo A. Rogers, of Boston, Mass. (George W. Anderson, U. S. Atty., of Boston, Mass., on the brief), for the United States.

Before PUTNAM, DODGE, and BINGHAM, Circuit Judges.

PUTNAM, Circuit Judge. This is an appeal from the decree of the District Court, and refers to the application of Harmon for a final certificate of naturalization. The decree of the District Court was as follows:

"March 8, 1915. Upon consideration of the petition of Whitney Earle Harmon, in open court, this 8th day of March, 1915, it appearing that the petition had not been filed until more than seven years had elapsed from September 27, 1906, the date of the taking effect of the Naturalization Act of June 29, 1906, the said petition is hereby dismissed."

The case involves the construction, with reference to the points stated in the rescript of the learned judge of the District Court, of section 4 of the Naturalization Act of June 29, 1906 (34 Stat. 596, c. 3592 [Comp. St. 1913, § 4352]). As fully explained in Re Yunghauss (D. C.) 210 Fed. 545, and in the same case in the Court of Appeals, Yunghauss v. United States, 218 Fed. 168, 134 C. C. A. 67, the latter decision being on October 8, 1914, the Second Circuit in these cases decided adversely to the position of the appellant here; and its decision, announced by Circuit Judges Coxe and Rogers, is said to have been. concurred in by the District Court, and by three District Judges for the Southern District of New York, namely, Judges Mayer, Hough, and Learned Hand. It is further said in the opinion there that the result was reached in two earlier cases, while an opposing view was expressed also in two earlier cases. It is plain, therefore, that there is at least sufficient doubt to require us to follow the practice which we have heretofore established, by adopting the decisions of the Circuit For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes