*162

*Mr. Justice BRANDEIS delivered the weigher does not operate to promote him opinion of the Court. automatically to the statutory office of weigher. And the fact that his appointment as clerk in 1909 was made as a part of a reorganization of the service, whereby four of the five positions of United States weigher were abolished, is immaterial; except as showing even more clearly that it was the intention not to appoint him weigher. No contention is, or could successfully be, made that the weighing should be paid for as an extra service, even if it was not a duty attaching to his position as clerk. See United States v. Garlinger, 169 U. S. 316, 18 Sup. Ct. 364, 42 L. Ed. 762.

[1] When an office with a fixed salary has been created by statute, and a person duly appointed to it has qualified and entered upon the discharge of his duties, he is entitled during his incumbency to be paid the salary prescribed by statute; and effect will not be given to any attempt to deprive him of the right thereto, whether it be by unauthorized agreement, by condition, or otherwise. United States v. Andrews, 240 U. S. 90, 36 Sup. Ct. 349, 60 L. Ed. 541; Glavey v. United States, 182 U. S. 595, 21 Sup. Ct. 891, 45 L. Ed. 1247.

We have, therefore, no occasion to consider whether effect should be given to the agreement by the intestate not to make claim to compensation as acting weigher, or *to his acceptance of the lower compensation without protest during the entire term of his service; nor need we consider the effect of section 2 of the act of July 31, 1894, c. 174 (28 Stat. 162, 205 [Comp. St. 1916, § 3231]), which provides that

Section 3 of the Act of July 26, 1866, c. 269 (14 Stat. 289), provides, that weighers at the port of New York shall receive an annual salary of $2,500. Section 2621 of the Revised Statutes (Comp. St. 1916, § 5359) authorizes collectors to employ, with the approval of the Secretary of the Treasury, weighers at the several ports; and it does not prescribe their number. Section 2634 authorizes the Secretary of the Treasury to fix the number and compensation of clerks to be employed by any collector. The statutes appear to have made no specific provision for the appointment of assistant or acting United States weighers. On May 12, 1909, plaintiff's intestate (who had been appointed on August 1, 1896, "assistant weigher of customs" at a salary, "when employed," of $3 per diem, and had later received a like appointment at $4 per diem) was appointed by the collector "clerk, class 3, new office, to act PAYNE et al. v. STATE of KANSAS ex rel. BREWSTER, Atty. Gen. as acting U. S. weigher" with compensation

"No person who holds an office the salary or to the sum of two thousand five hundred dollars annual compensation attached to which amounts shall be appointed to or hold any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law."

The judgment of the Court of Claims is affirmed.

No. 49.

(248 U. S. 112)

1. CONSTITUTIONAL LAW 206(4)—LICENSES
7(1)-CLASS LEGISLATON-REGULATION
OF COMMISSION DEALERS IN FARM PRODUCE.
Laws Kan. 1915, c. 371, forbidding sale of
farm produce on commission without annual li-
cense from state board of agriculture, on proper
showing of character, responsibility, etc., is not
a violation of Const. U. S. Amend. 14, as
abridging rights and privileges of dealers as citi-
zens of United States.
2. CONSTITUTIONAL LAW ~240(1)—LICENSES
7(1)—EQUAL PROTECTION OF LAWS-REG-
ULATION OF COMMISSION DEALERS.

at the rate of $1,600 per annum. On August | (Argued Nov. 15, 1918. Decided Dec. 9, 1918.) 18, 1911, he received a like appointment as clerk, class 4, at the rate of $1,800 per annum. He continued to perform the duties assigned and was paid the salary named until his death, October 8, 1913. In February, 1915, his administratrix filed with the Auditor of the Treasury a claim for salary of her intestate as "United States weigher of customs" at the rate of $2,500 per annum, from May 12, 1909, to and including October 7, 1913. Upon disallowance of the claim she brought this suit in the Court of Claims for the amount, namely, $11,013.89. The court found for the defendant and entered judgment dismissing the petition. 51 Ct. Cl. 356. The case comes here on appeal.

Laws Kan. 1915, c. 371, forbidding sale of license from state board of agriculture, on propfarm produce on commission without annual er showing of character, responsibility, etc., is not violative of Const. U. S. Amend. 14, as depriving dealers of equal protection of laws. LICENSES CONSTITUTIONAL LAW 287 7(1) DUE PROCESS REGULATION OF COMMISSION DEALERS.

3.

[2] There is a fundamental objection to the allowance of the claim or any part there of. MacMath was never appointed weigher and never held office as such. His only ap- Laws Kan. 1915, c. 371, forbidding sale of pointment was that of clerk; his oath of farm produce on commission without annual office being "as clerk and acting U. S. weigh-license from state board of agriculture, on

er, class 3." The Secretary of the Treasury learly had the right to create and the collector to make appointment to the position of clerk and to designate duties of the appointee. The fact that the incumbent performed also some or all the duties of a

proper showing of character, responsibility, etc., is not violative of Const. U. S. Amend. 14, as depriving such dealers of their property without due process of law.

In Error to the Supreme Court of the State of Kansas.

Original proceeding in mandamus by the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

State of Kansas, on the relation of S. M. | statutes are there subject to probate proceedBrewster, Attorney General, against J. C. ings and inheritance taxes. Mohler, as Secretary of the State Board of Agriculture, W. S. Payne, L. H. Powell, and others. To review judgment of the Supreme Court of Kansas allowing the writ (98 Kan. 465, 158 Pac. 408), respondents W. S. Payne, L. H. Powell, and others bring error. firmed.

Mr. Ray Campbell, of Wichita, Kan., for for defendants. plaintiffs in error.

Messrs. J. L. Hunt and James P. Coleman, both of Topeka, Kan., and T. F. Railsback, of Kansas City, Kan., for defendant in error.

Memorandum opinion by Mr. Justice Iowa alleges it is entitled to have assessed MCREYNOLDS.

Original. and procured the appointment of Bechhoefer COURTS 514-SUPREME COURT OF UNITED as special administrator, and by falsely STATES-ORIGINAL SUIT BY STATE-LEAVE. claiming that decedent was domiciled there, Leave will be denied a state to file an original bill in the Supreme Court of the United secured ex parte a finding to that effect, the States against another state and others; it not probate of the will, and the appointment of being entitled to the only effective relief sought, themselves as executors. From this decree, to enjoin further administration by the courts the defendant Lipman, claiming to be an of defendant state of the estate of a decedent resident of plaintiff, who died leaving personal heir, appealed; and this appeal, which is property in defendant state, which under its now pending, has the effect of suspending the

For other cases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes 39 SUP.CT.-3

decree and leaving the property in the hands the state Legislature for such an action in of the special administrator. The state of the federal courts. The individual defendIowa has not become a party to these pro-ants objected on the grounds that the Iowa ceedings. administrator was the proper party plaintiff; that he was in any event a necessary party and joining him would oust the court of jurisdiction; that the relief sought would deny to the action of the Minnesota court full faith and credit; and that plaintiff had an adequate remedy at law. The original juris diction of the court to entertain a bill of this character was also questioned. Only one of these objections need be considered, for it presents a conclusive reason why leave to file the bill of complaint should be denied.

(4) Under the laws of Iowa, omissions to list and assess property may be corrected and the taxes collected within five years from the date of such omission. But the amount properly payable for taxes by Slim'mer's estate cannot be *collected without assessment and levy thereof against his personal representatives, and such assessment and levy must be made within the state of

Iowa.

(5) On January 7, 1918, the district court of Dubuque county, Iowa (in a proceeding begun apparently on or about that day), decreed, at the instance of the treasurer of that state, that Slimmer, Sr., was domiciled therein and granted to one Mullany letters of administration of his estate. About the same date the state, learning that Slimmer, Jr., and Bechhoefer were about to come into it for the purpose of taking testimony in the Minnesota probate proceedings, obtained from said district court an injunction re straining the witness from testifying and the designated officers from taking their depositions. Slimmer, Jr., and Bechhoefer have not been served in the Iowa suit and have declared their purpose to avoid service

within that state.

The bill prays that it be adjudged and decreed: (a) That Slimmer, Sr., had for more than five years prior to his death been domiciled in Iowa; (b) that his estate consisted of evidences of indebtedness to him and that no part of his estate was, at his death, in Minnesota; (c) that Iowa has and Minnesota has not jurisdiction to administer upon his estate; and prays also (d) that such order be entered as will insure the dismissal of the Minnesota probate proceedings and the administration of the estate in Iowa; and (e) that, pending this suit, an injunction issue restraining the prosecution of the Minnesota probate proceedings.

G.

Substantially the whole of decedent's estate consisted of notes and bonds. Under an arrangement which had been in force for five years or more, these securities were, at the time of his death, in Minnesota in the custody and possession of an agent resident there. Minnesota imposes inheritance taxes; and its statutes provide (G. S. Minn. 1913, § 2281) that no transfer of the property of a nonresident decedent shall be made until the taxes due thereon shall have been paid. Regardless of the domicile of the decedent, these notes and bonds were subject to probate proceedings in that state and likewise subject, at least, to inheritance taxes. S. Minn. 1913, §§ 7205, 2271; Bristol v. Washington County, 177 U. S. 133, 20 Sup. Ct. 585, 44 L. Ed. 701; Wheeler v. New York, 233 U. S. 434, 34 Sup. Ct. 607, 58 L. Ed. 1030. Furthermore, so far as concerns the property of the decedent, located at his death in Min-3 nesota, the probate courts of *that state had jurisdiction to determine the domicile. Overby v. Gordon, 177 U. S. 214, 20 Sup. Ct. 603, 44 L. Ed. 741. But even if decedent was not domiciled in Minnesota, its court had the power either to distribute property located there according to the terms of the will applicable thereto, or to direct that it be transmitted to the personal representative of the decedent at the place of his domicile to be disposed of by him. G. S. Minn. 1913, § 7278; Harvey v. Richards, 1 Mason, 381, Fed. Cas. No. 6,184. See Wilkins v. Ellett, 108 U. S. 256, 258, 2 Sup. Ct. 641, 27 L. Ed. 718.

The motion for leave to file the bill was submitted ex parte. In view of doubt entertained as to the propriety of granting it, consideration of the application was postponed (as in Minnesota v. Northern Securities Co., 184 U. S. 199, 22 Sup. Ct. 308, 46 L. Ed. 499, and Washington v. Northern Securities Co., 185 U. S. 254, 22 Sup. Ct. 623, 46 L. Ed. 897), so that the parties might be heard; and the motion was fully argued orally and upon briefs. Both the state of Minnesota and the individual defendants, other than Lipman, objected to the granting of leave to file the bill. The state objected on the grounds that the only effective relief sought was an injunction against a proceeding in a state court; that the Minnesota probate court had exclusive jurisdiction to administer assets of a decedent within its borders, regardless of his domicile; and also that there was no authority granted by complaint is, therefore, denied.

On or about August 21, 1917, Slimmer's executors filed their petition in the probate court for Ramsey county, Minn.; and the court, in the exercise of its jurisdiction, appointed the defendant Bechhoefer special administrator.

As such, he took and now holds, pending an appeal to the state district court, possession of the whole of decedent's estate, consisting of the notes and Liberty Bonds as well as the personal effects. The only effective relief sought here is to enjoin the further administration of the estate of the deceased by the courts of Minnesota. It is clear that the state of Iowa is not entitled. to such relief.

The motion for leave to file the bill of

alone, the change being effected by entries upon the respective companies' books. The earnings thus transferred had been accumu

(Argued Nov. 4, 1918. Decided Dec. 9, 1918.) lated and had been used as capital before the

taxing year. Lynch v. Turrish, 247 U. S. 221, 228, 38 Sup. Ct. 537, 62 L. Ed. 1087.

We are of opinion that the decision of the District Court was right. It is true that the petitioner and its subsidiaries were distinct beings in contemplation of law, but the facts that they were related as parts of one enterprise, all owned by the petitioner, that the debts were all enterprise debts due to members, and that the dividends represented earnings that had been made in former years and that practically had been converted into capital, unite to convince us that the transaction should be regarded as bookkeeping rather than as "dividends declared and paid in the ordinary course by a corporation." Lynch v. Hornby, 247 U. S. 339, 346, 38 Sup. Ct. 543, 62 L. Ed. 1149. The petitioner did not itself do the business of its subsidiaries and have *possession of their property as in Southern Pacific Co. v. Lowe, 247 U. S. 330, 38 Sup. Ct. 540, 62 L. Ed. 1142, but the prin

ciple of that case must be taken to cover this. By section II, G, (c), 38 Stat. 174, and S, 38 Stat. 202, the tax from January 1 to February 28, 1913, is levied as a special excise tax, but in view of our decision that the dividends here concerned were not income it is unneces

Mr. Justice HOLMES delivered the opin- sary to discuss the further question that has ion of the Court.

This is a suit to recover a tax levied upon certain dividends as income, under the Act of October 3, 1913, c. 16, section II, 38 Stat. 114, 166. The District Court gave judgment for the plaintiff, 242 Fed. 709, but this judgment was reversed by the Circuit Court of Appeals. 245 Fed. 1, 158 C. C. A. 1.

been raised under the latter clause as to the effect of the fact that excise taxes upon the subsidiary corporations had been paid. Judgment reversed.

(248 U. S. 158)

PURE OIL CO. v. STATE OF MINNESOTA. (Argued Nov. 21 and 22, 1918. Decided Dec. 9, 1918.)

No. 74.

1. COMMERCE 51-INTERSTATE COMMERCEINSPECTION LAWS-OILS.

A state, under its police power, may enact laws for inspection of oils and gasoline, tending to promote public safety, or to protect public from frauds, and may charge a fee reasonably sufficient to pay cost of inspection, though property may be moving in interstate commerce; but, if charge is obviously and largely in excess of cost of inspection, act will be declared void as burden on interstate commerce. 2. CONSTITUTIONAL LAW 48-INSPECTION FEE- DISCRETION OF LEGISLATURE - JUDICIAL INQUIRY.

The facts may be abridged from the findings below as follows: The petitioner was a holding company owning *all the stock in the other corporations concerned except the qualifying shares held by directors. These companies with others constituted a single enterprise, carried on by the petitioner, of producing, buying, transporting, refining and selling oil. The subsidiary companies had retained their earnings, although making some loans inter se, and all their funds were invested in properties or actually required to carry on the business, so that the debtor companies had no money available to pay their debts. In January, 1913, the petitioner decided to take over the previously accumulated earnings and surplus and did so in that year by votes of the companies that it controlled. But, disregarding the forms gone through, the result was merely that the petitioner became the holder of the debts previously due from one of its companies to another. It was no richer than before, but its property now was represented by stock in 3. EVIDENCE 28-JUDICIAL NOTICE-STATE and debts due frora its subsidiaries, whereas In determining whether fees for inspection formerly it was represented by the stock of oils and gasoline exacted by state of Minneso

Discretion of state Legislature in determining amount of fee for inspection of oils and gasoline, prima facie reasonable, will not be lightly disturbed by federal courts in determining whether exaction for inspection of such products, moving in interstate commerce, constitutes burden thereon, on account of excessive character of charge, rendering state act a revenue, instead of an inspection, measure.

STATUTES INSPECTION FEES.

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

159

ta are so much in excess of cost of inspection as, to constitute law a revenue measure, invalid as burden on interstate commerce, Supreme Court of United States takes judicial notice that inspection fee on oil and gasoline in tank cars was twice reduced by the Legislature.

4. CONSTITUTIONAL LAW 48-OIL INSPECTION FEE-VALIDITY OF LAW-JUDICIAL INQUIRY.

In view of rapid increase in use of gasoline, and action of Legislature of Minnesota in reducing fee for inspection of oils and gasoline in tank cars, the federal Supreme Court will not impute a purpose other than to conform to requirements of federal Constitution in enactment of Gen. St. Minn. 1913, §§ 3619-3632, exacting fees for inspection of oils and gasoline, claimed to be invalid as revenue measure and burden on interstate commerce.

5. COURTS 399(2)—ERROR TO STATE COURT -FINDING OF FACT-CONCLUSIVENESS.

In suit attacking constitutionality of state statute whereunder fees for inspection of oils and gasoline were exacted, claim being that act was revenue measure, and burden on interstate commerce, finding of fact by trial court of state, approved by its Supreme Court, is accepted as conclusive by Supreme Court of United States.

In Error to the Supreme Court of the

State of Minnesota.

Suit by the State of Minnesota against the Pure Oil Company. From judgment for the State, defendant appealed to the Supreme Court of the State, which affirmed (134 Minn. 101, 158 N. W. 723), and defendant brings error. Affirmed.

Messrs. Nathan H. Chase and William A. Lancaster, both of Minneapolis, Minn., and Clifford Thorne, of Chicago, Ill., for plaintiff

in error.

Egbert S. Oakley and Lyndon A. Smith, both of St. Paul, Minn., for the State of Minnesota.

*Mr. Justice CLARKE delivered the opinion of the Court.

In this case the state of Minnesota sued the plaintiff in error, an extensive dealer in oils, to recover fees, which were charged for the inspection of oils and gasoline, between February 1, 1913, and April 25, 1915. The judgment of the state Supreme Court (134 Minn. 101, 158 N. W. 723) affirming that of the trial court in favor of the state, is before us for review on writ of error.

*The inspection involved was provided for by chapter 502 of the General Laws of the State of Minnesota for the year 1909, the title of which is:

"An act relating to the inspection of petroleum products, the appointment of chief inspector of oils and deputy inspectors, manner of inspection, establishing fees for inspection and salaries of inspectors, prohibiting the sale of adulterated oils, and providing penalties for violation thereof"

-and the title of the chapter in which the original act is embodied in the General Statutes of the State is "Inspection of Oils" (General Statutes of Minnesota 1913, c. 20). Section 3622 provides that no person shall sell or offer for sale in the state illuminating oil which has not been inspected as provid

ed for by the act, or which will ignite at a
Fahrenheit. A
temperature below 120°
method is prescribed for making this "fire
test" and for determining the gravity of such
oils, and the results must be stenciled on
each container of oil.

Section 3625 deals with gasoline, and requires that it shall be subject to the same inspection and control as is prescribed for illuminating oils, "except that the inspectors are not required to test it other than to ascertain its gravity."

All containers of gasoline must be labeled conspicuously with the word "Gasoline," the gravity must be stenciled thereon, and it is made unlawful to sell or offer it for sale until inspected and approved. Provision is also made (section 3626) for the inspection of gasoline "receptacles" to keep them "free from water and all other foreign substances" and the sale of "adulterated" gasoline is prohibited (section 3627). viously this is, in form, a not unusual type of inspection law.

Ob

The findings of fact by the trial court include the following:

During the period under discussion the state inspected 9.914 barrels of oil and 81,998 barrels of gasoline owned by the plaintiff in error, all of which were brought info Minnesota from other states by common carriers in tank cars, which were held at the place of business of the plaintiff in error until inspected, and all were unloaded from the cars in which they arrived and were And held for general sale and distribution. this in terms:

* *

"That the testing of gasoline in the manner provided by the statute indicates to the public the degree of safety of such gasoline, and has a fair relation to the quality and value thereof. That such inspection protects the community, as applied to sales of gasoline in Minnesota, from frauds and impositions, and advises, informs, and warns the public of the volatile character of said gasoline and the relative degree of care to be exercised in handling, storing, and using the same."

On the case thus stated it is claimed that the Supreme Court of Minnesota erred in refusing to hold:

First, that the inspection fees imposed were so excessive in amount as to render the act a revenue rather than an inspection measure and that as such it offends against section 8, article 1, of the federal Constitution, as an attempt by the state to regulate interstate commerce; and

Second, that to the extent that the act applies to gasoline it is not a valid exercise of the police powers of the state. because it does not serve to protect or safeguard the health, morals or convenience of the public, and therefore offends against the Fourteenth Amendment to the federal Constitution, by depriving the plaintiff in error of its property without due process of law to the extent of the fees which it in terms exacts.

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