Opinion of the Court.

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template that where books are kept on the accrual basis, the income shall be accounted for as it is earned. He suggests, therefore, as an alternative method of ascertaining the income, that the commissions on each year's writing be prorated over the life of the policies.

Under this alternative proposal, the practice of making deductions prevailing prior to 1923 would remain unchanged; but the method of ascertaining the gross income of the taxable year would be subjected to a far-reaching change. The proposal is that all policies be deemed to have been written on July 1; that of the overriding commission on one-year policies, one-half should be returned as income of the year in which the policy was written, the other half as income of the next year; that of the commissions on three-year policies, one-sixth should be returned as income of the year in which the policy was written, one-third as the income of each of the next two years and one-sixth as income of the fourth year; and that the commission on five-year policies, one-tenth should be returned as income of the first year, one-fifth as income of each of the next four years, and one-tenth as income of the sixth year.

This proposed alternative method of computing the income from overriding commissions was not employed by Edward Brown & Sons either before or after 1923. Moreover, the Board concluded that there "is no proof that the overriding commissions contain any element of compensation for services to be rendered in future years." The whole of the overriding commissions has at all times been treated as income of the year in which the policy was written. The Commissioner was of opinion that the method of accounting consistently applied prior to 1923 accurately reflected the income. He was vested with a wide discretion in deciding whether to permit or to forbid a change. Compare Bent v. Commissioner, 56 F. (2d) 99. It is not the province of the court to weigh and determine

the relative merits of systems of accounting. Lucas v. American Code Co., 280 U.S. 445, 449.

The deductions here claimed, not being authorized specifically either by the Revenue Acts, or by any regulation applying them, were properly disallowed. So far as the decision in Virginia-Lincoln Furniture Corp. v. Commissioner, 56 F. (2d) 1028, may be inconsistent with this opinion, it is disapproved.

Affirmed.

MOORE v. CHESAPEAKE & OHIO RAILWAY CO.

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

No. 173. Argued January 10, 11, 1934.-Decided February 5, 1934.

1. The jurisdiction of the District Court is to be determined by the allegations of the complaint. P. 210.

2. The Federal Employers' Liability Act, in providing that the employee shall not be held guilty of contributory negligence, nor to have assumed the risk, in any case under it where violation by the carrier of "any statute enacted for the safety of employees contributed to the injury or death, embraces the Federal Safety Appliance Acts. P. 210.

3. The Federal Employers' Liability Act and Safety Appliance Acts are in pari materia; and an action under the former in connection with the latter may be brought in the federal court of a district in which the carrier is doing business. P. 211. 4. A state statute prescribing the liability of common carriers for negligence causing injuries to employees while engaged in intrastate commerce provided that no employee should be held guilty of contributory negligence, or to have assumed the risk, in any case where violation by the carrier "of any statute, state or federal, enacted for the safety of employees" contributed to the injury. Held:

(1) That the provisions of the Federal Safety Appliance Acts for the safety of employees are in effect read into the state law. P. 212.

Argument for Respondent.

291 U.S.

(2) An action under the state statute against an interstate railroad for personal injuries suffered by an employee while engaged in intrastate commerce and caused by a violation of the Federal Safety Appliance Acts, is not an action arising under the laws of the United States, and, diversity of citizenship being present, may be brought in the federal court in the district of the plaintiff's residence. Jud. Code, § 51; 28 U.S.C., § 112. P. 211. 5. The Federal Safety Appliance Acts embrace all locomotives, cars and similar vehicles used on any railroad which is a highway of interstate commerce, and the duty to protect employees by the appliances prescribed exists even where the vehicle and employee are engaged, at the time of his injury, in intrastate commerce. P. 213.

6. Questions relating to the scope or construction of the Federal Safety Appliance Acts arising in actions in state courts for injuries sustained by employees in intrastate commerce, are federal questions reviewable by this Court. P. 214.

7. Where the Circuit Court of Appeals has erroneously reversed a judgment upon the ground that jurisdiction was wanting, the case will be remanded to it for consideration of the other questions presented. P. 217.

64 F. (2d) 472, reversed.

CERTIORARI, 290 U.S. 613, to review the reversal of a judgment for damages in an action for personal injuries.

Mr. Edward Davidson, with whom Mr. John P. Bramhall was on the brief, for petitioner.

Mr. Albert H. Cole for respondent.

The Safety Appliance Acts give to an employee, injured as a result of their violation, a right of action for the injuries sustained. San Antonio R. Co. v. Wagner, 241 U.S. 475, 484; Texas & Pac. Ry. Co. v. Rigsby, 241 U.S. 33, 39; Central Vermont Ry. Co. v. Perry, 10 F. (2d) 132, 133; Director General v. Ronald, 265 Fed. 128, 147.

The right of action necessarily arises out of those Acts, and jurisdiction to hear and determine it is conferred upon the federal district courts by 28 U.S.C., § 41 (Jud. Code, § 24), which provides that they shall have original

jurisdiction of suits arising under the laws of the United States.

The second paragraph of complaint, by expressly alleging that the action was brought under the Act of Congress commonly known as the Safety Appliance Acts and by seeking a recovery on no grounds other than an alleged violation of those Acts, clearly invoked the jurisdiction of the federal court on the ground that the action was a suit of a civil nature arising under a law of the United States.

Where an action is within the general jurisdiction of the federal courts, both upon the ground of diversity of citizenship and because founded on a law of the United States, it can be brought only in the district of which the defendant is an inhabitant.

The allegation that the action is under the Employers' Liability Act of Kentucky, as well as under the Federal Safety Appliance Acts, does not bear upon the jurisdictional question. In order that federal jurisdiction may attach to a suit arising under a law of the United States it is in nowise essential that it shall be based solely on federal law unaffected by the common or the statutory law of the State. Union Pacific R. Co. v. Myers, 115 U.S. 1; Osborn v. United States Bank, 9 Wheat. 738; Nashville v. Cooper, 6 Wall. 247. See also New Orleans, N. & T. R. Co. v. Mississippi, 102 U.S. 135; Cohens v. Virginia, 6 Wheat. 264; Tennessee v. Davis, 100 U.S. 257.

MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.

Petitioner brought this action in the District Court of the United States for the Northern District of Indiana, Fort Wayne Division, to recover for injuries which he sustained on November 29, 1930, in the course of his employment by respondent, an interstate carrier, in its yard

Opinion of the Court.

291 U.S.

at Russell, Kentucky. In his complaint he set forth two paragraphs" or counts, both being for the same injuries. In the first paragraph, petitioner alleged that at the time of the injuries he was employed in interstate commerce and that he brought the action under the Acts of Congress known as the Federal Employers' Liability Act1 and the Safety Appliance Acts, and the rules and orders which the Interstate Commerce Commission had promulgated under the latter. In the second paragraph, he alleged that at the time of the injuries he was employed in intrastate commerce and he invoked the Safety Appliance Acts enacted by the Congress, and the rules and orders of the Interstate Commerce Commission thereunder, and the Employers' Liability Act of Kentucky. The provisions of the laws of Kentucky which were alleged to govern the rights of the parties at the time and place in question were set forth. In each count petitioner stated that the injuries were received while he was engaged as a switchman in attempting to uncouple certain freight cars and were due to a defective uncoupling lever.

Objections to the jurisdiction of the District Court as to each count were raised by plea in abatement. They were overruled and petitioner had a general verdict. The judgment, entered accordingly, was reversed by the Circuit Court of Appeals upon the ground that the District Court was without jurisdiction to entertain the case upon

1

Act of April 22, 1908, c. 149, 35 Stat. 65, 45 U.S.C. §§ 51 et seq.; Act of April 5, 1910, c. 143, 36 Stat. 291, 45 U.S.C. § 56.

'Acts of March 2, 1893, c. 196, 27 Stat. 531, 45 U.S.C. §§ 1 et seq.; April 1, 1896, c. 87, 29 Stat. 85, 45 U.S.C. § 6; March 2, 1903, c. 976, 32 Stat. 943, 45 U.S.C. §§ 8, 9, 10; April 14, 1910, c. 160, 36 Stat. 298, 45 U.S.C. §§ 11 et seq.

3

Order of March 13, 1911; Roberts' Federal Liabilities of Carriers, Vol. 2, pp. 2010, 2016.

Ky. Acts, 1918, c. 52, §§ 1-3, p. 153; Carroll's Ky. Statutes, §§ 820 b-1, 820 b-2, 820 b-3,