the evidence in order to answer them or to prevent an evasion of real issues, the evidence will be examined. Kansas City Southern Railway Co. v. Albers Commission Co., decided February 26, 1912, ante, p. 573. For instance in this case the finding of the court that it was not prepared to say that a ninety cent rate was confiscatory may perhaps be taken to have been made subject to the admission that the rate was too low to permit a discount for prompt payment, and if so opens the question whether it was not confiscatory on that account, as matter of law. The plaintiff presents a number of such objections to the decision of the court below, although confused with arguments on pure matter of fact.

It would require a very clear case to warrant the reversal of the decree of a state court which though final in form merely postpones a decision upon the merits for further experience. The present one is far from being such a case. To refer in the first instance to the point just mentioned, we cannot say as matter of law that at ninety cents a thousand feet the company will be unable to collect payment without losses that will amount to a taking of its property. Then again, although it is argued that the court excluded going value, the court expressly took into account the fact that the plant was in successful operation. What it excluded was the good will or advantage incident to the possession of a monopoly, so far as that might be supposed to give the plaintiff the power to charge more than a reasonable price. Willcox v. Consolidated Gas Co., 212 U. S. 19, 52. An adjustment of this sort under a power to regulate rates has to steer between Scylla and Charybdis. On the one side if the franchise is taken to mean that the most profitable return that could be got, free from competition, is protected by the Fourteenth Amendment, then the power to regulate is null. On the other hand if the power to regulate withdraws the protection of the Amendment altogether, then the prop

erty is nought. This is not a matter of economic theory, but of fair interpretation of a bargain. Neither extreme can have been meant. A midway between them must be hit.

In this case the court fixed a value on the plant that considerably exceeded its cost and estimated that under the ordinance the return would be over 6 per cent. Its attitude was fair and we do not feel called upon to follow the plaintiff into a nice discussion of details. We perhaps should have adopted a rule as to depreciation somewhat more favorable to the plaintiff, or, it may be, might have allowed this or that item that the state court struck out, but there is nothing of which we can take notice in the case that could warrant us in changing the result or in saying that the plaintiff did not get as much as it could expect when leave was reserved for it to try again.

Decree affirmed.

WINGERT v. FIRST NATIONAL BANK OF

HAGERSTOWN.

APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT.

No. 176. Argued February 29, 1912.-Decided March 11, 1912.

After filing of a bill for injunction, defendants proceed at their peril, and even if no preliminary injunction is issued, if they inflict actionable wrong upon the plaintiff, the bill can be retained for assessment of damages; but if the only ground left for further prosecution is costs, the appeal will be dismissed.

Where pending trial below and hearing of appeal the object unsuccessfully sought to be enjoined has been accomplished-in this case the erection of a building by a bank-the only ground left for further prosecution is costs, and the appeal will be dismissed.

An action by a stockholder for injunction against a national bank and its directors to restrain them from materially altering the bank building will not be transmuted into an action for damages against the directors for so doing; such an action will not lie. Appeal from 175 Fed. Rep. 739; 99 C. C. A. 315, dismissed.

THE facts, which involve the power of directors of a national bank to alter its building against the protest of a minority of its shareholders, are stated in the opinion.

Mr. Henry F. Wingert, with whom Mr. Miller Wingert was on the brief, for appellant.

Mr. Charles A. Little and Mr. George R. Gaither for appellees.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is a bill to restrain the defendants, a national bank, its directors and a contractor employed by them, from pulling down the bank building and erecting a six story building in its place the first floor to be used for banking purposes, the other floors to be let for offices. The plaintiff is a holder of stock in the bank and alleges that the intended construction is ultra vires, and commercially unwise. The Circuit Court dismissed the bill on the ground that in the absence of bad faith it would not revise the judgment of the majority of the directors on the question of policy and that a national bank lawfully might' turn its building to the best account by adding upper stories for offices to let. The Circuit Court of Appeals affirmed the decree on the opinion below. 175 Fed. Rep. 739. 99 C. C. A. 315. Pending the litigation the new structure has been built.

Objections are interposed on both sides-on the part of the defendant, to the right of a stockholder to prevent by injunction acts beyond the power of the corporation, on

that of the plaintiff, to the reception of the bank's answer, because it was adopted at a meeting of which the plaintiff's brother, a protesting director, was not notified. Without giving the slightest countenance to either it is enough to say that the whole case is disposed of by the erection of the new bank. No doubt after the filing of a bill for an injunction defendants proceed at their peril even though no injunction is issued, and, if they go on to inflict an actionable wrong upon the plaintiff, will not be allowed to defeat the jurisdiction of the court by their own act. In such a case the bill will be retained for the assessment of damages. Milkman v. Ordway, 106 Massachusetts, 232, 253. Lewis v. North Kingstown, 16 R. I. 15. But in the present matter the only ground for further prosecution of the case is costs. There are no damages for which the plaintiff could make any claim against the corporation for doing as it saw fit with its own, lawfully or unlawfully. Furthermore a recovery would be futile. It would cost the plaintiff as much as it brought in. To transmute the cause of action into a demand for damages against the directors alone would be an essential change, and probably would do the plaintiff no good, as it has been held in well considered cases that that action also would not lie. Smith v. Hurd, 12 Met. 371. Allen y. Curtis, 26 Connecticut, 456. As the appeal really is prosecuted only for costs it must be dismissed. Union Paper-Bag Machine Co. v. Nixon, 105 U. S. 766. See Richardson v. McChesney, 218 U. S. 487. But we are far from intimating that the plaintiff loses anything by this disposition of the case. Brown v. Schleier, 118 Fed. Rep. 981.

Appeal dismissed.

223 U.S.

Counsel for Parties.

TANG TUN v. EDSELL, CHINESE INSPECTOR.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

No. 45. Argued November 7, 1911.-Decided March 11, 1912.

Under the acts of August 18, 1894, c. 301, 28 Stat. 372, 390, and of February 14, 1903, c. 552, 32 Stat. 825, the decision of the question of citizenship of a Chinese person seeking to enter the United States is final unless reversed on appeal by the Secretary of Commerce and Labor; and unless it affirmatively appears that the executive officers acted unlawfully or improperly, or abused their discretion, their finding is conclusive and not subject to review by the courts. In this case it appears that the requirements of the law were satisfied and there is no ground for judicial intervention.

The decision of an appeal is none the less that of the Secretary of Commerce and Labor because communicated by the Assistant Secretary, Hannibal Bridge Co. v. United States, 221 U. S. 194, by telegram, and later verified by letter.

The fact that a case is quickly decided, in this case two days after its submission, is not a basis for attack on ground of abuse of discretion or denial of due process.

Where the District Court takes jurisdiction and proceeds to determine the merits in a habeas corpus proceeding, the respondent can carry the case to the Circuit Court of Appeals.

168 Fed. Rep. 488; 93 C. C. A. 644, affirmed.

THE facts, which involve the right of a Chinese person to enter the United States, and whether the inquiry to determine whether such person should enter was properly conducted, are stated in the opinion.

Mr. James A. Kerr, for petitioners, submitted.

Mr. Assistant Attorney General Harr for the United States.

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