(273 F.) LEDERER, Collector of Internal Revenue, v. REAL ESTATE TITLE INS. & TRUST CO. OF PHILADELPHIA. (Circuit Court of Appeals, Third Circuit. June 16, 1921.) No. 2648. 1. Appeal and error 1097 (1)-Questions once decided become law of case. Matters once considered and decided by an appellate court constitute the law of the case and on review of a second judgment the only question to be considered is whether the previous opinion and mandate were followed. 2. Appeal and error 232 (2)-Ruling admitting evidence reviewable only on ground of objection stated. Objection to the admission of evidence must be specific, and in a proceeding in error the party objecting is confined to the ground of objection stated at the trial. In Error to the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge. Action by the Real Estate Title Insurance & Trust Company of Philadelphia against Ephraim Lederer, Collector of Internal Revenue. Judgment for plaintiff, and defendant brings error. Affirmed. See, also (C. C. A.) 263 Fed. 667. Gordon Auchincloss, of New York City, for plaintiff in error. Maurice Bower Saul, of Philadelphia, Pa., for defendant in error. Before WOOLLEY and DAVIS, Circuit Judges, and MORRIS, District Judge. MORRIS, District Judge. This is the same case that was before us at the October term, 1919. Real Estate Title Insurance & Trust Co. v. Lederer, 263 Fed. 667. Judgment against the Trust Company, the plaintiff below, following a compulsory nonsuit, was then reversed. A new trial has been had resulting in a verdict and judgment in favor of the Trust Company. The defendant, Lederer, is plaintiff in this writ. [1] The questions decided upon the first writ of error are no longer open, for it is well settled that matters once considered and decided by an appellate court constitute the law of the case and will not be re-examined upon a subsequent writ of error. Consequently we have now to consider only whether the present judgment was had in due pursuance of the previous opinion and mandate of this court. United States v. Camou, 184 U. S. 572, 22 Sup. Ct. 515, 46 L. Ed. 694; Supervisors v. Kennicott, 94 U. S. 498, 24 L. Ed. 260; Roberts v. Cooper, 20 How. 467, 481, 15 L. Ed. 969. Minerals Separation v. Miami Copper Co. (C. C. A.) 269 Fed. 265, 269. The evidence produced at the second trial was substantially the same as that offered at the first. An examination of the record discloses that the trial judge carefully followed the course pointed out in our former opinion, both in his rulings during the trial and in the charge to the jury. Numerous errors in the court's charge and in the admission of evidence are alleged, but, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes save one, the assignments supported by proper exceptions merely present anew matters heretofore decided by us. [2] The assignment presenting the question not heretofore examined is based upon the admission, over the objection of the defendant, of the testimony given at the first trial by a witness absent from the second by reason of paralysis. The evidence so received was objected to at the trial upon the sole ground "that there is better evidence available." That objection is not here pressed, but, in its stead, the defendant now urges that the testimony was incompetent by reason of section 861 of the Revised Statutes of the United States (Comp. St. § 1468). This objection comes too late here, and will not be considered, for it is an established rule of law that when a party objects to the admission of testimony the objection must be specific, and not general, and in a proceeding in error the party objecting is confined to the objection stated at the trial. The rule that the objection must be specific and not general obtains, in order that the attention of the trial judge may be directed to the precise point of law intended to be raised by the objection, for it cannot be expected that a particular objection in the mind of counsel, thoroughly conversant with the case through previous study, will occur to the judge in the intricacy of the trial, although, if stated, he would readily perceive its force. The party objecting is, upon proceedings in error, confined to the objection stated at the trial, for the reason that the question of law raised by the specific objection made is the only one ruled upon by the trial court, and it cannot be said that the court erred in respect to a matter not brought to its attention, and upon which it neither ruled nor was asked to rule. It is not within the province of this court to retry common-law cases de novo. Burton v. Driggs, 20 Wall. 125, 22 L. Ed. 299; Stebbins v. Duncan, 108 U. S. 32, 2 Sup. Ct. 313, 27 L. Ed. 641; Wood v. Weimar, 104 U. S. 786, 795, 26 L. Ed. 779; Noonan v. Caledonia Mining Co., 121 U. S. 393, 400, 7 Sup. Ct. 911, 30 L. Ed. 1061; Robinson & Co. v. Belt, 187 U. S. 41, 50, 23 Sup. Ct. 16, 47 L. Ed. 65; Rem. Mach. Co. v. Wil. Candy Co., 6 Pennewill (Del.) 288, 306, 66 Atl. 465. The judgment below must be affirmed. UNITED STATES v. ONE COLE AERO EIGHT AUTOMOBILE et al. Internal revenue 2-Provisions of internal revenue laws not repealed by National Prohibition Act. Rev. St. § 3450 (Comp. St. § 6352), providing for the forfeiture of vehicles used for removing or concealing articles subject to internal revenue tax with intent to defraud the United States of such tax is not inconsistent with the provisions of National Prohibition Act, tit. 2, § 26, for forfeiture of vehicles seized when in use for the illegal transportation of liquor, and under title 2, § 35, of the act, is not repealed thereby. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (273 F.) Libel by the United States against one Cole Aero Eight Automobile and others. On demurrer to libel. Overruled. John L. Slattery, U. S. Atty., of Helena, Mont. Fletcher Maddox and I. W. Church, both of Great Falls, Mont., for libelees. BOURQUIN, District Judge. Defendants' demurrer to this libel. to forfeit the auto, for that it was used to remove whisky with intent to defraud plaintiff of the tax thereon, involves one aspect of the controversy that divides the courts in respect to the extent that the old revenue laws are repealed by the Eighteenth Amendment and the Volstead Act. 41 Stat. 305. That the repeal extends to all of the old laws that apply solely to liquors for beverage purposes, save to the extent taxing features are preserved by title 2, § 35, of the act, seems clear from the nature of things. That it also extends to all that are inconsistent, in the usual acceptance of the term, with amendment and act, is clear from the express declaration of said section 35. The conflict arises from differences of opinion in respect to what of the old revenue laws are inconsistent with the act. Section 35 expressly declares: "All provisions of law that are inconsistent with this act are repealed only to the extent of such inconsistency, and the regulations herein provided * * * shall be construed as in addition to existing laws, * * shall this act relieve any person from any liability, civil or criminal, heretofore or hereafter incurred under existing laws." nor This express declaration is so far of the nature of express repeals that in the face of it the rules of implied repeal-new revision, complete system, change in policy, only rule, etc.-have no application. See Suth. Stats. § 147; 36 Cyc. 1081, and cases cited. Congress plainly says that only inconsistent features of the old laws are repealed, and that all other features are unimpaired; that the only rule of implied repeal that shall apply is that of inconsistency. Despite it, some courts incline to go beyond the legislative declaration, and appeal to all rules of implied repeal, including a new definition of inconsistency in purpose. And they overlook the rules that negative implied repeal—legislative language, variance in subject and object, consistency between the old laws and the new, inconclusiveness of partial repugnancy in spirit, different elements in offenses, cumulation, special or particular and general laws. As always, legislative intent is to be found in legislative language, and rules are resorted to only when the language otherwise fails to disclose the intent. In respect to R. S. § 3450 (Comp. St. § 6352), by virtue of which this libel is prosecuted, U. S. v. One Haynes Auto.(D. C.) 268 Fed. 1003, holds it is repealed by the act, and U. S. v. One Essex Auto (D. C.) 266 Fed. 138, holds it is not. The learned judge in the latter case, whose views and reasoning commend themselves to the writer, leaves little to be added to demonstrate that in the usual acceptation there is no inconsistency between section 3450 and the act. The latter is general, and creates the offense of unlawful transportation, composed of various elements and committed by various acts, the purpose of which is to conserve public health and morals, and to that end to keep watch and ward over all movement of liquors from start to finish. Sections 6, 10, 15, tit. 2. The former is particular, and creates the offense of defrauding the United States of taxes by not only removal, but also by deposit or concealment of liquors with intent to so defraud, of elements and acts different from those of the act, the purpose of which is to conserve revenue, with some supervision to that end. Section 26 applies only to conveyances taken in the act of unlawful transportation; section 3450, to those used not only to remove, but also to those used to deposit or conceal, whether by transportation or otherwise, whether or not taken in the act. With these distinctions in mind, and that the offenses created by the act do not include the offense of section 3450, that either is capable of commission while the law in respect to the other is strictly pursued, that transportation of the act is not synonymous with removal, deposit, or concealment of section 3450, that there is no inconsistency between them, and keeping in view the language and intent of section 35, it is believed section 26 applies only to the offense of unlawful transportation by the act created. Hence section 26 does not repeal section 3450, no more than did a previous general statute (R. S. § 3296 [Comp. St. § 6038]), which was also enacted subsequent to section 3450 and is also broad enough to include the latter's elements, and the conclusion is that section 3450 is "existing law" within the language and intent of section 35 of the act. It is at least interesting to note that section 26 applies to conveyances taken in the act of transportation only. If this includes removal, prescribed by section 3450, it leaves removal not taken in the act, and deposit and concealment in or by an auto, in violation of section 3450, either to the application of the latter section or nothing. For clearly enough section 26 has no application to these latter offenses or contingencies. Yuginovich's Case, 255 U. S., 41 Sup. Ct. 551, 65 L. Ed., is not like this at bar. It proceeds upon a peculiar construction of an indictment, and determines that, for the offense charged of manufacture of liquor for beverage purposes, the tax features of the old revenue laws in part apply, but the penalties of only the act. It further determines, however, that, whatever the purpose of the liquor, plaintiff is entitled to taxes, and so is capable of being defrauded of them by removal in violation of section 3450. The demurrer is overruled. (273 F.) PACIFIC GAS & ELECTRIC CO. v. CITY AND COUNTY OF SAN FRANCISCO et al. 1. Gas (District Court, N. D. California, S. D. June 3, 1921.) Nos. 27, 97, 190. 14 (1)—Cutting and replacing paving over mains not part of cost of reproduction of plant. In valuing the property of a gas company for rate purposes, the cost of cutting and replacing pavement over mains held properly excluded in estimating the cost of reproduction. 2. Gas 14 (1)-Franchise not included in property valued for rate purposes. The franchise of a gas company to use the streets of a city, which was not exclusive, and for which nothing was paid, and where the company was subject to municipal regulation of its rates, held properly excluded in the valuation of its property in a rate suit. 3. Gas 14 (1)-Going concern value allowed in valuation of property of gas company. In the valuation of the property of a gas company for rate purposes, the addition of 12 per cent. to the value of the physical property for going concern value approved. 4. Gas 14 (1)—Value of patent rights not allowable in valuation of property of company. Patent rights owned by a gas company, by the use of which cost of manufacture is lessened, not included in property valued for rate purposes. 5. Gas 14 (1)-Reserve allowed company to cover insurance risk held reasonable. In determining reasonableness of rates of a gas company, which carried no insurance, an allowance of a reserve to cover fire risk of a sum largely in excess of its losses through a series of years held reasonable. 6. Gas 14 (1)-Company not entitled to allowance for efficient management in fixing reasonable rates. In determining reasonable rates which a gas company is entitled to earn, it is not entitled to an annual allowance for efficient management. 7. Gas 14 (1)-Rates not invalid because nonremunerative in case of small consumers. That gas rates fixed by municipal ordinance require a company to supply small consumers at a loss does not render them invalid, if as a whole they produce a fair return. 8. Gas 14 (2)-Rates fixed by municipality set aside by courts only when clearly confiscatory. In determining what are fair and reasonable rates to be charged by a gas company, a city council exercises a discretionary power, and since there are necessarily many elements of uncertainty in the valuation of property and in respect to other items to be taken into consideration, a court is authorized to substitute its judgment and declare such rates invalid only when they are clearly confiscatory, taking into consideration the fact that what is a fair rate of return on the investment differs with time and locality. Suit in Equity by the Pacific Gas & Electric Company against the City and County of San Francisco and others. On exceptions by complainant to report of master. Exceptions overruled, and decree for defendants. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |
