(46 S. Ct.) The Act to Regulate Commerce of February 4, 1887, c. 104, 24 Stat. 379, provided, by what is now paragraph 3 of section 3 (Comp. St. Ann. Supp. 1923, § 8565), that carriers shall "afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines"; but it did not confer upon the Commission authority to permit and to require the construction of the physical connection needed to effectuate such interchange. Paragraph 9 of section 1, introduced by Act of June 18, 1910, c. 309, § 7, 36 Stat. 539, 547, required a carrier engaged in interstate commerce to construct a switch connection "upon application of any lateral, branch line" and empowered the Commission to enforce the duty; but that provision was held applicable only to a line already constituting a lateral branch road. United States v. Baltimore & Ohio Southwestern R. Co., 226 U. S. 14, 33 S. Ct. 5, 57 L. Ed. 104. The Act of August 24, 1912, c. *249 390, § 11, 37 *Stat. 560, 568, amending section of such terminal." The only limitation set by Transportation Act of 1920, upon the broad powers conferred upon the Commission over the construction, extension and abandonment of the lines of carriers in interstate commerce, is that introduced as paragraph 22 of section 1, which excludes from its jurisdiction "spur, industrial, team, switching or side tracks, located wholly within one state, or of street, suburban, or interurban electric railways, which are not operated as a part or parts of a general steam railroad system of transportation." It is clear that the connection here in question is not a track of this character. Compare Texas & Pacific Ry. Co. v. Gulf, Colorado & Santa Fé Ry. Co. (No. 417, decided March 1, 1926) 270 U. S. 266, 46 S. Ct. 263, 70| L. Ed. 578. The proposed junction is between the main lines of the two railroads. The point of junction is on the main line of the Alabama & Vicksburg, near its entrance into the city of Jackson. In support of the objection that a junction there would be dangerous, it was shown that the connection would *250 be located between two tres*tles, near a high- [2] It is true that in this case the state court found that the place selected for the junction was a proper one. But the power to make the determination whether state action will obstruct interstate commerce inheres in the United States as an incident of its power to regulate such commerce. Compare Colorado v. United States (No. 195, decided May 3, 1926) 271 U. S. 153, 46 S. Ct. 452, 70 L. Ed. 878. In matters relating to the construction, equipment, adaptation and use of interstate railroad lines, with the exceptions specifically set forth in paragraph 22, Congress has vested in the Commission the authority to find the facts and thereon to exercise the necessary judgment. The Commission's power under paragraph 3 of section between the main lines of carriers was as3 to require the establishment of connections serted by it in Pittsburg & West Virginia Ry. 81 Interst. Com. Com'n R. 333, a case deCo. v. Lake Erie, Alliance & Wheeling R. R., cided after the withdrawal by the Jackson & Eastern of its application to the Commission for leave to make the junction at Curran's Crossing, and in Breckenridge Chamber of Commerce v. Wichita Falls, Ranger & Fort Worth R. R. Co., 109 Interst. Com. Com'n R. 81. That its jurisdiction is exclusive was held in People v. Public Service *251 Commission, 233 N. Y. 113, 119, 121, 135 N. Writ of certiorari denied. (271 U. S. 272) (Argued April 14, 1926. Decided May 24, 1926.) Nos. 231-234. 1. War 10(1). Private rights and duties are affected by war only so far as they are incompatible with rights of war. 2. Partnership 268-Advent of state of war with Germany put an end to partnership consisting of members in both countries, and postponed all remedies relating to dissolution, but did not petrify rights and duties resulting therefrom. Advent of a state of war with Germany put an end to partnership consisting of members of United States and Germany, and postponed all remedies relating to dissolution, but did not petrify rights and duties resulting therefrom; its only effect being to suspend enforcement of the obligation of each of partners in respect of assets and past transactions. 4. Partnership 297-On dissolution of partnership as result of war, settlement, in absence of legislation to the contrary, is legally impossible until close of war, because of rule forbidding intercourse across enemy's frontier. 6. Partnership 305-German partners of partnership having both German and American members, continuing business after dissolution of partnership by war held chargeable with amount of American members' share of German assets at exchange rate on date communication with German aliens was restored; that being first time settlement became lawful. Where, as result of declaration of war, partnership having both American and German members was dissolved, and German partners, instead of liquidating, continued to use assets in going business, but great loss finally resulting was entirely due to depreciation of German mark, and not to any lack of good faith on part of partners, held that German partners should be charged with American partners' share of German assets at exchange value of German mark on date communication was restored between citizens of this country and Germany, as being the first time settlement became lawful. 7. Partnership 305-American member having interest in German assets of partnership having both German and American members, and dissolved as result of war, held entitled to award calculated on basis of interest in lieu of unascertainable profits. Where a firm having both German and American partners was dissolved by declaration of war, American member having interest in German assets held entitled to award calculated on basis of interest in lieu of unascertainable profits. Where firm having both German and American partners was dissolved on declaration of war, payments made out of German assets to relatives of American member, based on directions given before war, cannot be charged against interest of American member, since outbreak of hostilities produced such In case of dissolution of partnership as a fundamental alteration in relation of parties result of war, a settlement, in the absence of that continuance of authority to make paylegislation to the contrary, is legally impossi- ments will not be assumed, in absence of evible until the close of war, because of rule for-dence of assent of American member thereto. bidding intercourse across enemy's frontier and denying access by enemy citizens to our courts. 5. Partnership 305-Relation created by dissolution of partnership as to assets is fiduciary relation, whether dissolved by agreement or as result of war, and adjustments of rights and liabilities of partners inter se are to be made in accordance with rules governing such relationship. Relation created by dissolution of partnership in respect of assets is fiduciary relation, whether dissolution was caused by war or by agreement, and adjustments of rights and liabilities of partners inter se are to be made in accordance with rules governing such relationship. Appeals from the United States Circuit Court of Appeals for the First Circuit. Suit by Thomas W. Miller, Alien Property Custodian, against Richard Mayer, Edwin Reis, and others. Decree was modified and affirmed (1 F.[2d] 419), and Howard Sutherland, as Alien Property Custodian, Richard Mayer, Edwin Reis, and others separately appeal. Reversed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 281 (46 S. Ct.) *Mr. John Caldwell Myers, of New York City (Mr. John W. Davis, of New York City, of counsel), for Reis and others. *284 *Mr. Justice SUTHERLAND delivered the opinion of the Court. the partnership the amount of his capital investment together with 20 per cent. of the net profits earned by the partnership, and was liable for 20 per cent. of all losses. There was, however, no evidence of the actual. value of the American property or of the German or English property, nor of the liabilities of the firm; and this suit for an accounting followed. It is not disputed that the custodian is entitled to the American assets after deducting therefrom the amount These are several appeals from a decree of the court below affirming in part and reversing in part a decree of the federal District Court for the District of Massachusetts. The suit was brought by the Alien Property Cus-of Mayer's share in all the assets. todian against Richard Mayer, a naturalized citizen of the United States, two corporations, organized under Massachusetts law, Karl B. Strauss, a naturalized subject of Great Britain, and Edwin Reis and Anny Reis, in her own right as widow and as trustee for two minor children of Ludwig Reis, deceased, citizens and inhabitants of Germany, for an accounting in respect of the interest of Mayer and the German citizens in certain assets in the United States in Mayer's possession and assets in Germany in the possession of the Germans, alleged to belong to a partnership consisting of Mayer, Edwin Reis, Karl B. Strauss and Ludwig Reis. *285 *286 The German partners entered an appearance in the present suit, and produced at the hearing all the account books. The property in Manchester had been seized by the English government and sold, leaving debts on account of the English branch, amounting to £35,000, which were either paid or assumed by the German partners. The District Court found that a few days prior to the declaration of war the value of the German mark in the *currency of the United States, according to the rate of exchange then quoted, was about 18 cents. Thereafter no rate of exchange was quoted until July 17, 1919. at which time the exchange value of the German mark was 7% cents. Thereafter, its value steadily declined, until at the time of the act of Congress (42 Stat. 105) declaring the state of war at an end on July 2, 1921, it was 1.35 cents, and when the hearing was begun in the present case its value was .0048 of a dollar. The District Court determined that the German partners should account for Mayer's share of the German assets at their value on April 6, 1917, the American assets to be measured in terms of the American gold dollar, and the German assets correspondingly in terms of the German gold mark, which is the equivalent of 23.82 cents of the money of the United States; and upon this basis the decree was entered. The Circuit Court of Appeals, in affirming the decree, adopted the same view. Sub nom. Miller v. Mayer (C. C. A.) 1 F. (2d) 419. And this presents the principal question in the case and the only one requiring extended consideration. The partnership was formed some time prior to the declaration of war against Germany on April 6, 1917, and was existing at that time. Mayer contributed to the partnership his American business, worth slightly over 206,000 marks-less than $50,000. The German partners contributed about 2,655,000 marks. By the partnership agreement, after payment of 42 per cent. on the capital contributed and stipulated salaries, Mayer was to receive 20 per cent. of the profits, to be credited to his capital account. The partnership agreement was made in Germany, and the principal seat of the partnership was at Friedrichsfeld, Germany, with branches at Manchester, England, and in Boston. At the time of the declaration *of war, the partnership assets in Mayer's possession had grown to a little over $910,000, and his share in the European assets amounted to 2,414,056.12 marks. Of the amount in Mayer's possession, between $500,000 and $600,000 consisted of a balance remaining out of Appellants in Nos. 232 and 234 unite in $2,500,000 sent to him by the German part- the contention that the declaration of war ners for the purpose of buying cotton waste. did not affect the title to the partnership After the declaration of war, the American property; that, although the partnership was assets were seized by the Alien Property thereby dissolved, the partners must suffer Custodian; but in a suit brought against ratably from any depreciation in the value of that officer they were ordered redelivered to the German assets after the dissolution and Mayer upon the ground that he had a lien before the accounting; and that the accountupon them for his share of the partnershiping must be made upon the basis of the value capital and profits. Mayer v. Garvan (D. C.) | of such assets at the time of the accounting, 270 F. 229, affirmed (C. C. A.) 278 F. 27. The the value of the mark being taken at its then value of the assets returned to Mayer was rate of exchange. $828,072.72; losses having occurred which are not material to the present consideration. In that case the court held that under the partnership agreement Mayer was entitled upon distribution to have out of the assets of [1] That the declaration of a state of war immediately effected a dissolution of the partnership is well settled and is not in dispute. It is likewise settled that during the war all intercourse, correspondence and traf fic between citizens of this country and of Germany which would or might be to the advantage of the enemy, were absolutely forbidden. Conrad v. Waples, 96 U. S. 279, 287, *287 24 L. Ed. 721; Briggs *v. United States, 143 U. S. 346, 353, 12 S. Ct. 391, 36 L. Ed. 180. The effect of War Trade Regulations No. 802, July 14, 1919, and No. 814, July 20, 1919, we shall consider further along. The reasons for, and the limitations upon, the rule have been frequently stated. War between nations is war between their individual citizens. All intercourse inconsistent with a 'condition of hostility is interdicted (The Rapid, 8 Cranch, 155, 162, 163, 3 L. Ed. 520), for fear that it may give aid or comfort to, or add to the resources of, the enemy. Moreover, as said by this court in United States v. Lane, 8 Wall. 185, 195, 19 L. Ed. 445: "If commercial intercourse were allowable, it would oftentimes be used as a color for intercourse of an entirely different character; and in such a case the mischievous consequences that would ensue can be readily foreseen." But war is abnormal and exceptional; and, while the supreme necessities which it imposes require that, in many respects, the rules which govern the relations of the respective citizens of the belligerent powers in time of peace must be modified or entirely put aside, there is no tendency in our day at least to extend them to results clearly beyond the need and the duration of the need. The purpose of the restriction is not arbitrarily and unnecessarily to tie the hands of the individuals concerned, but to preclude the possibility of aid or comfort, direct or indirect, to the opposing forces. It is that purpose which gives birth to the rule and indicates its limits. The rule is simply "a belligerent's weapon of self-protection." Daimler Co. v. Continental Tyre, etc., Co., [1916] 2 A. C. 307, 344. And it applies even where the trading is with a loyal citizen, if he be resident in the enemy's country, since the result of his action may be to furnish resources to the enemy. Id., 319; Janson v. Driefontein Consolidated Mines, [1902] A. C. 484, 505. The whole tendency of modern law and practice is to soften the "ancient severities of war," and to recognize, increas *288 353 (12 S. Ct. 391); Williams v. Paine, 169 U. S. 55, 72, 18 S. Ct. 279, 42 L. Ed. 658; Birge-Forbes Co. v. Heye, 251 U. S. 317, 323, 40 S. Ct. 160, 64 L. Ed. 286. Thus, where a contract has been performed before the advent of war and nothing remains but the payment of money, the right to collect is not destroyed, but only the remedy suspended until the termination of the war. Hanger v. Abbott, 6 Wall. 532, 537, 18 L. Ed. 939; Brown v. United States, 8 Cranch, 110, 123, 3 L. Ed. 504; New York Life Ins. Co. v. Statham, 93 U. S. 24, 31, 23 L. Ed. 789; Crutcher v. Hord and wife, 67 Ky. 360, 366; Mutual Benefit Life Ins. Co. v. Hillyard, 37 N. J. Law, 444, 465, 18 Am. Rep. 741. Agencies, created before the war, and not requiring intercourse across the enemy's frontier, such as for the collection of debts, preservation of property, and so forth, are not terminated by war. See, generally, Ward v. Smith, 7 Wall. 447, 452, 453, 19 L. Ed. 207; Quigley's Case, 13 Ct. Cl. 367, 371; Anderson v. Bank,. 1 Fed. Cases 838, No. 354; Lamar v. Micou, 112 U. S. 452, 464, 5 S. Ct. 221, 28 L. Ed. 751. And in the case of contracts made before the war for the delivery of goods, it is entirely lawful to make delivery during the war within the United States. The thing forbidden is placing property or money within the power of the enemy"not in delivering it to an alien enemy, or his agent, residing here, under the control of our own government. In such a case, the interests of commerce are perfectly compatible with the rights of war; and public policy does hot forbid the transfer." Buchanan v. Curry, 19 Johns. (N. Y.) 137, 141 (10 Am. Dec. 200). ** ** * *289 [2] And so here we have to deal, not with a contract made during the war or requiring commercial or other inter*course across military lines, but with an adjustment of rights, after the restoration of peace, under lawful articles of partnership entered into before, and existing at the outbreak of, the war. The advent of a state of war put an end to the partnership and postponed all remedies relating to the dissolution; but it did not petrify rights and duties resulting therefrom. Its effect only was to suspend the enforcement of the obligation of each of the partners in respect of the assets and past transactions of the partnership; and the essential inquiry now is: What was the obligation which resulted from the dissolution? [3, 4] Upon the dissolution of a partnership, the general rule is that the liquidating partner or partners must settle up the partnership affairs within a reasonable time, and, ingly, that the normal interrelations of the citizens of the respective belligerents are not to be interfered with when such interference is unnecessary to the successful prosecution of the war. Private rights and duties are affected by war only so far as they are in-after payment of the partnership debts and compatible with the rights of war. See, generally, Kershaw v. Kelsey, 100 Mass. 561. 568-574, 97 Am. Dec. 124, 1 Am. Rep. 142, where the question is elaborately reviewed in an opinion by Mr. Justice Gray which has several times received the approval of this court; Briggs v. United States, supra, page liabilities, divide the proceeds among the partners according to their interests, Clay v. Field, 138 U. S. 464, 473, 11 S. Ct. 419, 34 L. Ed. 1044. The rule is not different because the dissolution is the result of war. Stevenson & Sons V. Aktiengesellschaft, etc., [1918] A. C. 239, 246. But in the case (46 S.Ct.) *291 of such a dissolution, in the absence of leg-ion, however, that they fall short of estabislation to the contrary, a settlement is le- lishing a situation for applying the theory gally impossible until the close of the war, of a purchase of the German assets by the because of the rule forbidding intercourse German partners. across the enemy's frontier and denying access by enemy citizens to our courts; although it is entirely compatible with the rule to recognize the right and duty of the enemy partners to care for and preserve the assets of the copartnership in the possession of each for their mutual benefit when the war has ended. To say otherwise, because an enemy may realize a benefit after the war has come to an end, is utterly to misapply the principle upon which the nonintercourse rule is based and to confound the suspension of the remedy with the loss of the right. Daimler Co. v. Continental Tyre, etc., Co., supra, page 347; Stevenson & Sons v. Aktiengesellschaft, etc., supra, pages 249, 253, 254. [5] In the present case, the adjustment of the account as among the partners is a matter in which the government-the war and the exigencies of the war having passed-is no longer concerned, save as its rights and duties are represented by the Alien Property Custodian. Except for the latter consideration, we are dealing with a simple suit for an accounting among partners, to be determined by the application of equitable principles. Stevenson & Sons v. Aktiengesellschaft, etc., supra, page 248. The effect upon these principles of the dissolution of the partnership by war is certainly no greater than if it had been dissolved by death or agreement. Buchanan v. Curry, supra, pages 142, 143. In either event the relation created by the dissolution in respect of the assets is a fiduciary relation, and adjustments of rights and liabilities of the partners inter se are to be made in accordance with the rules governing such relationships; and in a court of equity the American partner, ipso facto, has no such exceptional privilege as will permit him to secure more favorable consideration than that to be accorded to his alien partners. *Undoubtedly, the German partners, instead of liquidating, continued to use the assets after the dissolution in a going business, commingling old assets with new; also they took in a new partner. The Court of Appeals said, and evidence is quoted from the Garvan record to the effect, that the assets were taken over by the German partners and thereThe evidence after treated as their own. before us in the present record is to the effect that the business in Germany was carried on during the war as it had been before; that Mayer's share of the profits was credited to him annually in the private ledger at Friedrichsfeld; and that a sum sufficient to pay out Mayer's capital interest, as shown by the books, was continuously carried on deposit in banks. Precisely what are the facts in respect of this matter we need not stop to determine, because, in view of the conclusion we have reached, it is not material whether the German partners treated the business as their own or as that of the old partnership. The partnership was at an end; and their duty was to liquidate. They could not carry on the business in any form so as to bind Mayer. But Mayer must elect either to accept what was actually done with the burdens and benefits or to enforce against his German parthave done. The decision below and Mayer's ners a liability based upon what they should attitude apparently proceed upon the latter alternative, and in that view, in an ordinary case, he could justly be given no more than what he would have obtained if the liquidation had in fact been made within a reasonable time and the amount of his share promptly paid over to him. Precisely at this point the contention in Mayer's behalf breaks down, for it ignores the circumstance, which that, even if the assets had been promptly liquidated, nothing could have been paid to Mayer until after the removal or expiration of the nonintercourse bar. Until that time, differentiates this from the ordinary case, *292 the amount *coming to Mayer necessarily would have been held by the German partners in the form of German currency, or of securities or a bank account payable in such currency, and the loss, so far as Mayer is concerned, would have resulted none the less. In this connection the fact may not be disregarded that the German partners dealt with a situation under the abnormal restraints and perplexities of war; and it is fair to interpret what they did in the light of that situation. So viewed, we are unable to conclude that their acts were hostile to May The argument for Mayer is that the German partners should be treated as having purchased the German assets on April 6, 1917, and compelled to account for Mayer's interest therein upon that basis and as of that date. In support of that contention we are referred to the record in the original case of Mayer v. Garvan, supra, of which the District Court in the present case took judicial notice. That record has not been before us; but we accept the statements contained in Mayer's brief in respect of its dis-er's ultimate rights or inconsistent with an closures, since they do not seem to be challenged by the other parties. We are of opin honest effort to do the best possible thing with the property until the close of the war, |