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amounts due to other and connecting lines of road for material and repairs, and for unpaid ticket and freight balances, in view of the interests both of the property and of the public, and that the property may be preserved and disposed of as a going concern, and the company's public duties discharged; and that such indebtedness may be given priority, notwithstanding there may have been no diversion of income, or that the order for payment was not made at the time, and as a condition, of the receiver's appointment, the necessity and propriety of making it depending upon the facts and circumstances of the particular case, and the character of the claims.1 Of course, the discretion to enter such orders should be exercised with great care, but as late as Thomas v. Car Co.,' the Supreme Court quoted the remarks upon the doctrine and its proper application in Miltenberger v. Railroad Co., with approval, although, as observed by this court in Bound v. Ry., the tendency of that case was to narrow the limits within which an equity court should confine itself in making such allowances.'

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We do not believe that the cases cited in this opinion sustain its holding. As we have previously shown, when analyzed, they all justify the allowance of these claims upon the theory of a diversion, or on account of the laches of the bondholders. We have quoted, in another connection, the language used by Chief Justice Fuller himself in Morgan's Co. v. Texas Ry., where he adopted the doctrine of Fosdick v. Schall, that "If there has been no diversion there can be no restoration." The Chief Justice, in fact then, although he makes no allusion to that opinion, indorses the view of Judge Caldwell who was the first to maintain that these claims should be preferred regardless of any proof of diversion. This opinion of Chief Justice Fuller, given in a court of last resort, must be taken

1 Miltenberger v. Railroad Co., 106 U. S. 286, 311; 1 Sup. Ct. Rep. 140; Trust Co. v. Souther, 107 U. S. 591, 594; 2 Sup. Ct. Rep. 295; Union Trust Co. v. Illinois M. Ry. Co., 117 U. S. 434; 6 Sup. Ct. Rep. 809; Morgan's Co. v. Texas Ry. Co., 137 U. S. 171; 11 Sup. Ct. Rep. 61; Kneeland v. Foun

dry Works, 140 U. S. 592; 11 Sup. Ct. Rep. 857.

2 149 U. S. 95, 110; 13 Sup. Ct. Rep. 824.

• Supra.

4 58 Fed. 473; 7 C. C. A. 322.
5 In 53 Fed. 182, supra.

as an authoritative exposition of the law, unless reversed by a subsequent decision of the Supreme Court. The decision is sweeping and clears away much of the confusion with which the decisions of the Supreme Court have enveloped the doctrine. Kept within its proper limits, the application of the doctrine, as defined in this opinion, is eminently just, and it is only to be regretted that the courts did not have the courage to adopt it long ago instead of straining, in each instance, to recognize the equity of these claims and, at the same time, keep within the limits of Fosdick v. Schall.

Other decisions of the Circuit Court of Appeals are: Bound v. Ry. Co.,1 Cutting v. Ry. Co.,2 Clark v. Ry.,3 Riley v. Trust Co.1 Of course, the doctrine only applies to railroads.5

There is no reason why it should not be applied to street railways as well as others, and it has been.6

It would seem an injustice that the doctrine should not apply in cases where the bondholders have foreclosed without asking for a receiver, and Judge Caldwell so remarks, though by way of dicta, in 53 Fed."

Some of the earlier decisions of the State courts have denied the existence of this equity, but the latter decisions recognize the doctrine, though differing somewhat as to the extent to which it should be carried. In many States the subject is now regulated by statute.8

II. WHAT CLAIMS ARE PREFERRED.

The usual order made in appointing a receiver is, that he pay all amounts due other and connecting lines of road for ticket

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75 Va. 701; Fidelity Co. v. Ry. Co., 9 S. E. R. (Va.) 759; Farmers Co. v. Pine Bluff Ry., 21 S. E. R. (Ark.) 653; McIllheney v. Binz, 13 S. W. R. 656 (Texas); Litzenberg v. Jarvis Co., 28 Pac. Rep. (Utah) 871; Douglass v. Cline, 12 Bush (Ky.), 608; Manchester Wks. v. Truesdell, 46 N. W. R. (Minn.) 301; Metropolitan Co. v. Ry., 103 N. Y. 245; Coe v. Ry. Co., 31 N. J. Eq. 105, 130; Central Trust Co. v. Thurman, 20 S. E. R. (Ga.) 142.

and freight balances, and all claims for labor and supplies necessary for the operation of the road, which have accrued within a limited period previous to the receivership. The equity does not exist in favor of those aiding in the original construction of the road, but only in favor of those whose labor and supplies have been essential to its operation after construction.1

It has been held that the rental of leased lines will not be made a preferred claim.2

Neither will rental for cars be given priority over the mortgage debt.3

In Nat. Bank v. Carolina Ry., the claim of the president of the road for salary was denied preference. Legal services rendered the company before the receivership will not be given priority.5

In Farmers L. & T. Co. v. Nor. Pac. Ry., one who had become surety on the appeal bond of the defendant was refused indemnity out of the funds in the hands of the receivers. But see same case by Judge Jenkins,' where this very claim was allowed by Judge Hanford.

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In Nor. Pac. Ry. v. Lamont, the intervenor had contracted to furnish the road with a depot at one of its stations. The court held this a necessary operating expense. A claim for damages for personal injury is not entitled to preference.9

III. FOR WHAT PERIOD PRIOR TO THE RECEIVERSHIP WILL THESE CLAIMS BE ALLOWED.

The practice has grown up in several circuit courts of limiting the allowance of these claims to such as accrued within six

1 Ry. Co. v. Cowdray, supra; Wood v. Guaranty Co., supra; Toledo Ry. v. Hamilton, 10 Sup. Ct. Rep. 546; 144 U. S. 296; Porter v. Steel Co., 7 Sup. Ct. Rep. 742; 120 U. S. 671; Farmers L. & T. Co. v. Ry., 21 S. E. R. (Ark.) 653.

2 St. Joseph Ry. v. Humphreys, 12 Sup. Ct. Rep. 787; 145 U. S. 102, approving Central Trust Co. v. Wabash R. R., 34 Fed. 259; Central Trust Co.

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months prior to the receivership. This usage seems to have given rise to the notion that in no case will claims be allowed beyond six months. In the recent case of the Nat. Bank v. Carolina Ry.,' Judge Simonton remarks by way of dicta: "This period is never beyond six months." We do not believe there is any arbitrary rule applicable to all cases. In Farmers L. & T. Co. v. R. R., Judge Caldwell says: "There is no sixmonths rule," and reviews the authorities on the point.3 In Nor. Pac. Ry. v. Lamont, the intervener's claim was allowed, part of which had accrued some four years before the appointment of a receiver.

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We think that a court may, in its order appointing a receiver, properly fix some definite period, such as ninety days, or six months, but it should be open to any intervenor to make such a showing as would warrant the allowance of his claim, even if it accrued before that time. The application of a rule fixing an unvarying period of time would result in unnecessary injustice. CHARLES A. DICKSON.

SIOUX CITY, Iowa.

1 63 Fed. 75.

2 53 Fed., supra.

3 See also valuable note to this opinion. Also, note to Blair v. Ry.,

22 Fed. 471, also Wood v. New York Ry., 70 Fed. 746.

469 Fed. 23 (C. C. A.).

CITIZENSHIP OF THE UNITED STATES UNDER THE FOURTEENTH AMENDMENT.

A decision was rendered, on January 3d, 1896, in the United States District Court, Northern District of California, in the habeas corpus proceeding of Wong Kim Ark,1 in which the interesting and important question of citizenship of the United States arose. Wong Kim Ark had arrived at San Francisco, on board the steamship "Coptic" from China, and sought to land, claiming that he was a citizen of the United States, and that therefore the Chinese Exclusion Acts were inapplicable to him. Landing was refused him by the Collector of the Port, on the ground that he was not a citizen, his parents being, at the time of his birth, subjects of the Emperor of China, and that, by the rule of international law, the political status of the child followed that of the parents. Application was then made by the detained to the United States District Court for a writ of habeas corpus, which was granted. The United States District Attorney, according to the usual procedure in Chinese habeas corpus cases, intervened and contested the right of the detained to land. The stipulated facts showed that Wong Kim Ark was born in this country; that at the time of birth, his parents were, and still are, subjects of the Emperor of China, and were domiciled residents of the United States, engaged in business, and remained such until 1890, when they departed for China; that, ever since his birth, Wong Kim Ark has had but one residence in this country, and that he has never changed or lost said residence, or gained or acquired another, and has resided here claiming to be a citizen of the United States; that he has been to China on two different occasions, but only for temporary visits; that he has never renounced, either by himself or by his parents acting for him, his allegiance to the United States. It was held by the

1 71 Fed. R. 382.

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