Volume 199 — United States Reports

<p>ERROR TO THE SUPREME COURT OF THE STATE OF FLORIDA.</p> <p>In 1845 fractional township 53 -south, range 42 west, in .Dade County, Florida, was surveyed and a plat thereof was approved and filed in the office of the surveyor general in Florida, and also in the office of the Land Department of Washington. By this survey fractional section 19 was divided into two lots, numbered 1 and 2, containing 164.84 acres. In 1875 a resurvey was made of the township, plats of which were also duly approved and filed in the office of the surveyor general in Florida and with the Land Department at Washington. By this new survey said section 19 was divided into 7 lots, containing, in the aggregate 337.76 acres. The difference between the two surveys of section 19 is shown in the follo'wing plats:</p> <p> </p> <p>On June 24,1878, a patent was issued to William H. Gleason, on a homestead application, for a tract described as lots 1 and 2 of section 19, containing 164.84 acres, according to the official plat of the survey of 1845. Plaintiff in error, who was plaintiff below, claims by deed from the patentee. On May 4, 1885, lot 5 of section 19, according to the survey in 1875, was patented by the United States to Florida as swamp land, and thereafter deeded by the State to the defendant. In 1898 this action to recover a part of lot 5 was commenced in the Circuit Court of the Seventh Judicial Circuit of Florida, in and for Dade County. The case was tried by the court without a jury; a judgment rendered for the defendant was affirmed by the Supreme Court of the State, and thereafter brought to this court on writ of error. Included in the action was lot 1 of section 19, as shown by the plat of 1875, but as judgment was' rendered for the plaintiff in respect to that tract, it is unnecessary to further refer to it. There was a stipulation as to certain facts, with a provision that testimony of further facts might be received, and that the court might view the premises. The findings of the court recite that it viewed the premises, and upon the stipulated facts, and further testimony incorporated in a bill of exceptions, found generally for the defendant as to lot 5.</p> <p>The jurisdiction of this court is invoked because plaintiff-in error asserted, in the state courts, his right to land in lot 5, under a patent issued by the United States and the statutes governing the survey -and contents of divisions of the public lands, and this right was -denied-.; and because the rights of the parties also involved a consideration of the swamp land grant of September 28, .1850. St. Paul & Pa. R. R. Co. v. Schurmeier, 7 Wall. 272; Johnson v. Towsley, 13 Wall. 72; Live Stock Co. v. Springer, 185 U. S. 47; Kean v. Calumet Canal & Imp. Co., 190 U. S. 452.</p> <p>The United States having once, gran ted this land under a patent it did not pass by the swamp land patent to the State. Stone v. United States, 2 Wall. 525; Hooper v. Scheimer, 23 How. 235; Gibson v. Chouteau, 13 Wall 92.</p> <p>The plat by which Gleason made his entry and received his patent showed that’ he had'ia water boundary to the entire fractional section on the east. The state court gives him a boundary on land (lot 5) for the south half of the north half of his entry. The rule is that where a section is made fractional by. the interference of water an entryman of land shown by the plat to be bounded by the water, takes to the water. This is not a case where the claimant would have to go into another section to reach the water, nor where there is a bayou which may be supposed to be the water meandered, instead of the shore of the bay; but it is a case coming clearly within the rule stated.</p> <p>Meanders are run to define the general course of the shore and it is not customary to run ordinates from the meander lines to get the exact shore line, in making the government surveys. From this it results that shore lots sometimes contain a considerable excess and sometimes a considerable deficiency of land, as compared with the acreage returned by the surveyors. In the present case the patent was issued after the resurvey had developed the existence of the excess, and the fact that all the land in the fractional section was granted is evidence that the Government intended to relinquish any claim it might have to the excess land. Had it been the intention to set aside the survey of 1845 as a fraud on the Gov-, ernment, the patent to Gleason would not have been issued in 1878, after the survey of 1874 had exposed the liberality of the first survey in thé matter of acreage returned. Harden v. Jordan, 140 U. S. 371; Mitchell v. Smale, 140 U. S. 406; Kean v. Calumet Canal & Imp. Co., 190 U. S. 452.</p> <p>The court erred in holding that the patent to William H. Gleason of all of fractional section 19, said township and range above, was not a decision of the Land Department that the greater part of each lot into which said section was divided by the plat under which the Gleason patent issued, was not swamp and overflowed land, so that no land in said section passed to the State under the swamp land act.</p> <p>The court erred in holding that land which appeared to be covered by waters of Biscayne Bay by the official plat in effect September 28, 1850, the date of the swamp land grant, could have been granted by that act, and in holding that title to the land in controversy in lot 5, as shown by the survey of 1874, passed to the State by the act of 1850 and was state land at the time of the patent to Gleason, and that the subsequent patent to the State was but a recognition of a title existing in the State since 1850.</p> <p>The foregoing assignments may be discussed together.</p> <p>It was argued in the state courts by the defendant that when the Government patented lot 5, as per plat of 1875, to the State, this was an adjudication of its. swamp character) and as the act of September 28, 1850 (known as the swamp land act) 'made a grant of swamp lands in prcesenti, the title to the lot had really been in the State since September 28, 1850, and the attempt to patent it to Gleason in . 1878 was abortive.</p> <p>The fallacy is obvious. There was no lot 5 on ¡September 28, 1850. At that time fractional section 19 was divided into but two lots, numbered 1 and 2. It was decided by the Land Department that neither of these two lots 'belonged to the State under the swamp land act, when the patent was issued to Gleason in 1878. The action of the Government in patenting the entire fractional section to Gleason was conclusive as to its non-swamp character. The Department had lost jurisdiction over the matter in 1885 when it attempted to grant lot 5 to the State.</p> <p>Titles to lands patented by the Government to private parties, which might by any possibility be classified as swamp, would be very insecure were this position of the defendant tenable. Brown v. Hitchcock, 173 U. S. 473; Rogers Locomotive Machine Works v. American Emigrant Co., 164 U. S. 559; Mich. Land & Lumber Co. v. Rust, 168 U. S. 589.</p> <p>The court erred in holding invalid^ the • claim of the plaintiff under the statutes of the United States governing the surveys of the public lands, and the statutes relating to homestead entries and patents issued thereon to the land in. controversy in this suit situated in lot 5 as shown on the plat of 1874. Act of February 11, 1805, 2 Stat. 313; §§2396, 2397, Rev. Stat.; act of April 5, 1832, 4 Stat. 503.</p> <p>Upon the facts the legal proposition is whether the patents to Gleason conveyed the entire north half of this fractional section as shown on the plat of the survey of 1874-1875; or whether it only embraced the area contained in lot 1 of the survey of 1845, *£ bounded by the lines drawn on the map and the lengths and boundaries of these lines as thereon marked, for which no field notes are shown.</p> <p>The line of commencing at the southeast corner of this section on the plat of 1845 and running thence N. 2° .W., 80.60 chains is not a meander line, according to any authority defining such a line. Lots 1 and 2 of survey of 1845 are bounded on all sides by straight lines. Turner v. Parker, 14 Oregon, 340; Railroad Co. v. Schurmier, 7 Wall. 272.</p> <p>As to the manner of taking distances from one point to' another on navigable waters the measurement is by its meanders, and not in a direct line. See Rayburn v. Winant, 16 Oregon, 318; Johnson v. Pannel, 2 Wheat. 206.</p> <p>In all of the cases cited by counsel for plaintiff in error, p which the questions of water boundaries are decided, the field notes are given, showing that the lines were run to the water boundary at some point, as required by statute. No case is cited in which the field notes were not used to show the point at which the line reached the water. Counsel for plaintiff in error admits that the distance given from the northwest corner to the Bay is too short. It is too short because it was never run by any survey made in 1845, of which any, field notes are given, but was simply plotted by the draughtsman to show the area of the lot. The rule “That the call for distance must give way to the natural boundary,” applies, only to eases where the field notes show that the line was actually run to such boundary.</p> <p>There is strong corroborative evidence that no interior sub-divisional survey was made of this township in 1845, and therefore there was no original survey to be obliterated, which accounts for the absence, of any; field notes of a subdivisional survey of this township in 1845. .</p>

The proceedings which culminated in the arrest and remanding of the appellant originated in an indictment found in the Supreme Court of the District of Columbia against the appellant and John A. Benson, Henry P. Dimond, and Joost H. Schneider, charging them with a conspiracy, under Rev. Stat. sec. 5440, "to defraud the United States out of the possession and use of and the title to, divers large tracts of the public lands of the United States.” All of the defendants except…

The facts are stated in the opinion of the court. When a vessel has been abandoned at sea by the master and crew without any intention of returning to her, the owner of cargo has the right, before the carrier or Ms agents have regained possession of the cargo, to treat the contract of affreightment as abandoned and at an end, and to receive Ms cargo without becoming liable for any freight; and this although the abandoned ship and cargo are carried by salvors to the origmal…

<p>CERTIORARI TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.</p> <p>The facts are stated in the opinion.</p>

The defendant in error was the owner of nearly one-fifth of the capital stock of the Commercial National Bank of Ogden, Utah. As such shareholder he applied for leave to inspect the books, accounts and loans of the bank, which was refused him. He alleges the reasons for seeking such inspection to be that he might ascertain the value of his stock in the bank and whether the business affairs of the; same had been conducted according to law.

On a bill filed by the Mason City and Fort Dodge Railroad Company, (hereinafter called the Mason City Company,) the Circuit Court of the United States for the District of Nebraska entered a decree, August 19, .1903, 124 Fed. Rep. 409, requiring the Únion Pacific Railroad' Company (hereinafter called the Union Pacific Company) to let the plaintiff into the joint use of the railroad-bridge between Omaha and Council Bluffs, and the approaches thereto.

Held: did not comply with the statute, because it was not-given in-its words, and the language actually used was held by the majority of the court to bé so far from complying with tiie statute in a material manner as to render it of no use.

<p>ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA.</p> <p>This was a petitory action commenced by the Corkran Oil and Development Company in the Eighteenth Judicial District Court for the parish of Acadia, Louisiana, on the sixth day of December, a. d.' 1901, against Laurent Arnaudet and others, to recover possession of certain real property. _ Plaintiff alleged that the land was claimed by Anthony Corkran during his lifetime, and by his heirs and legal representatives after his death, and. that said claim, known as the “Corkran grant,” was finally confirmed to Corkran’s heirs and legal representatives by an áct of Congress of February 10, 1897, and a patent was issued to them in accordance with the act. That Corkran died in about the year 1819,' and his succession was duly opened in St. Landry parish, where he resided, and where the property was situated, and that petitioner acquired title to said property from Corkran’s heirs and descendants by acts of sale on various dates specified, said dates being subsequent to November 10, 1901. That neither Corkran and wife, nor any of his heirs, legal representatives or descendants,' ever sold or disposed of their rights, title or-interests in the land before the sales to petitioner, and petitioner was now the jüst, true and legal owner-of the property. Notwithstanding which, defendants, without legal right or title and against petitioner’s rights, had entered upon and now .possessed and held said property and refused to deliver the same to petitioner as of right.</p> <p>The act of Congress referred to is as follows (29 Stat. 517, c. 213):</p> <p>"Chap. 213. An act to quiet title and possession with respect to certain unconfirmed and located private land claims in the State of Louisiana.</p> <p>“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all the right, title, and interest of the United States in and to the lands situate in the State of Louisiana, known as the located but unconfirmed private land claims therein, aggregating about eighty thousand acres, and specifically described in the list or tabular statement accompanying the report, dated February nineteenth, eighteen hundred and eighty, made by the surveyor general of Louisiana to the Commissioner of the General Land Office, under a resolution of the United States Senate of December second, eighteen hundred and seventy-nine, and which report and list were communicated to the Senate by the Secretary of the Interior on March eighth, eighteen hundred and eighty, as Senate Executive Document numbered one hundred and eleven, Forty-sixth Congress, second session, shall be, and the same are hereby, directed to be granted, released, and relinquished by the United States, in' fee simple, to the respective owners of the equitable titles thereto, and to their respective heirs and assigns forever, as fully and completely, in every respect whatever,' as could be done by patents issued therefor according to law.</p> <p>“Sec. 2. That nothing 'contained in this act shall in any manner abridge, divest, impair, injure, or prejudice any valid right, title, or interest of any person or persons in or to any portion or part of the lands mentioned in said .first section, the true intent of this act being to relinquish and abandon, grant, give, and concede any and all right, interest, and estate, in law or equity, which the United States is or is supposed to be entitled to in said lands, in favor of all persons, estates, firms, or corporations who would be the true and lawful owners of the same under the laws of Louisiana, including the laws of prescription, in the absence of the said interest and estate'of the United States. ■</p> <p>“Sec. 3. That the Department of the Interior shall cause patents to issue for such lands, and such patents shall issue in the name of the original claimant 'as appears in the fist or schedule aforesaid, and when issued shall be held to be for the use and benefit of the true and lawful owners as provided in sections one and two of this act.”</p> <p>The patent is as follows:</p> <p>“The United States of America to all to whom these presents shall come,</p> <p>“ Greeting:</p> <p>“Whereas, by ’the act of Congress approved February 10th, a. d. one thousand1 eight’ Huhdred and ninety-seven, entitled ‘An act to quiet title and possession with respect to certain Unconfirmed, and located private land claims in the State of Louisiana/ it is provided—</p> <p>[Here follows the act of February 10, 1897, in full.]</p> <p>“And whereas, the private land claim of Anthony Cork-ran, appears in the list of claims embracéd in the aforesaid Senate Executive Document numbered one hundred and eleven. and, therefore, stands confirmed and entitled to (a patent under the terms of the) act of Congress hereinbefore recited.</p> <p>“And whereas, the aforesaid claim has been regularly surveyed as section forty-seven in township nine, south of range two west in the southwestern district of Louisiana, containing five hundred and eighty acres and ninety hundredths of an acre as appears by the plat and descriptive notes thereof on file in the General Land Office of the United States duly approved by Chas. F. Dickinson, U. S.'surveyor general for the State of Louisiana, on the thirtieth day of October, one thousand eight hundred and ninety-seven, which said plat and descriptive note are herein inserted and made a part of these presents, and are in the words and figures following, to wit:</p> <p>[Plat and descriptive note.]</p> <p>“Now know ye, that the United States of America, in consideration of the premises herein set forth, and in conformity with the provisions contained in sections two and three of the aforesaid act of the tenth day of February, one thousand and eight hundred and ninety-seven, has given and granted and by these presents does give and grant unto the said Anthony Corkran and to his heirs and assigns the tract of land embraced and described in the foregoing survey.</p> <p>“To have and to hold the said tract of land with the appurtenances unto the said Anthony Corkran his heirs, assigns and successors in interest forever.”</p> <p>Dated November 22, 1897.</p> <p>The defendants filed exceptions, and also answered, admitting that Anthony Corkran, or Cochran, claimed the land in question, and that it was patented to Corkran and his heirs under and according to the act of February 10, 1897, which was fully set forth in the preamble to the patent; and they asserted that the true intent of said act of Congress fully appeared from the second séction of the act, and that “under and by virtue of the laws of Louisiana, all the right, title and interest of Anthony Corkran and his heirs in and to the land claimed by plaintiff, and patented as aforesaid to Anthony Corkran and. his heirs, had been divested long prior to the issuance of the aforesaid patent, and was held in full and complete ownership long prior to the date of said patent by the authors of defendants, and by defendants, under valid and perfect titles, by and under the laws of Louisiana, including the laws of prescription.”</p> <p>That the authors of defendants and defendants themselves had acquired by true and valid title all the right, title, interest and estate at law or in equity in the lands patented to Anthony Corkran and his heirs prior to the issue of the patent, by virtue of the laws of Louisiana providing for the sale of all lands situated within its borders for non-payment of taxes, by mesne conveyances of said lands from the purchaser at a tax sale December 2, 1882, for unpaid taxes assessed on said realty for the year 1881; and that since said tax sale the real estate in question has always been in the possession of the purchaser at that sale and the authors of defendants and the defendants themselves, and been occupied by them as owners in undisturbed and quiet possession. Defendants further pleaded in bar of the action and in support of their title “ the prescription of three, five and ten years, and that the prescription of three years established by article 233 of the Louisiana ■ constitution of 1898 is a complete bar to this action.” Defendants also asserted that they had paid taxes on said property during the time of their possession and had placed thereon valuable improvements, amounting in the aggregate to upwards of twenty' thousand dollars. The trial court decided the case on the merits, and found that defendants claimed title to the land in controversy through Henry Gellert, who purchased the land at a tax sale in 1882, for taxes assessed against said land in the name of Anthony Corkran or his heirs, and set forth the •facts on which the court held that the land in controversy was subject to such assessment and sale. The trial court held that the defendants were protected by the prescription of three years, provided in article 233 of the constitution of 1898, as well as the prescription of three and five years pleaded, and entered judgment for defendants. On appeal, the judgment was affirmed by the Supreme Court of Louisiana, the case being reported 111 Louisiana, 563.</p> <p>That court found as facts that under the act of February 10, 1897, a patent issued on November 22, 1897, to Anthony Corkran and his heirs and assigns for the lands in controversy in this suit; that there was not in the record any previous application for the land or entry thereof by Anthony Corkran, but that the records of the Land Department showed that in 1816 the land was surveyed by Deputy United States Surveyor Aborn, by virtue of “an order from the principle deputy surveyor of the western district, State of Louisiana, and in conformity with a certificate, B No. 1151, from the board of commissioners of the said western district” for Anthony Corkran; that this map and procés verbal were approved May 21, 1817, 'by Gideon Fritz, principal deputy surveyor; that the land was again surveyed in 1875 by P. A. Thibodaux, deputy surveyor, and across his map is written “Claimed by Anthony Corkran — no confirmation found;” that the officers of the United States Land Office refused to dispose of the land under the general land laws of the United States, and finally Congress passed the act of 1897; that on December 27, 1882, the tax collector of the ■ parish of St. Landry executed a deed in favor of Henry Gellert,- which was recorded on the same day in the conveyance book of that parish, reciting that on the second day of December, 1882, he had adjudicated to said Gellert at public sale the land in controversy, “being the property of Anthony Corkran or his heirs, as per assessment roll of the State of Louisiana of the year 1881, to satisfy a debt due the said State for the unpaid taxes” for said year; and that “the present defendants are admittedly in possession of the land patented to Anthony Corkran or his heirs.” And the court held “that the land in controversy was subject to taxation and sale for non-payment of taxes,” and that the objection that it was not so subject was untenable.</p> <p>As to .the objection that the tax deed was invalid because of indefiniteness of description the court held that the presumption, after the great lapse of time, was that the assess-1, mént roll to which the deed referred was sufficiently precise and definite and was correct and regular, and that defendants were justified in relying on the presumption of regularity in the absence of actual attack upon the tax proceedings.</p> <p>The court held further that the argument of plaintiff that Corkran and his heirs were without right of any kind in the land in controversy would leave the Government, so far as they Were concerned, free to make such disposition of said land as it might think proper, for the result of such argument would be to throw them out of court for want of intérest in the subject-matter, their rights resting exclusively "upon the Government’s acts. The court said:</p> <p>“If Corkran or his heirs had no claim of character such as could be enforced or legally entitled to have been recognized, the Government could impose such conditions to the voluntary recognition of the same as it thought proper, and the parties claiming under the act of recognition would be forced to accept them or nothing.</p> <p>“There is no one before the court claiming rights under the Government adverse to the rights acquired by the parties under the Government, and whatever rights the Government itself might have had, or grounds for objection, it had expressly renounced and waived, not only in favor and behalf- of Anthony Corkran or his heirs, but of any other person who would have had legal rights had the Government itself had none when those rights attached. This renunciation or waiver could as legally and properly have been made by the Government in behalf and in favor of this class of persons as it could have been made in favor of the Corkran heirs, and that this renunciation and waiver was' intended to cover and protect the rights of the latter class appears on the face of the act of Congress. ...” .</p> <p>“Grant that the act of Congress was- an original grant to the Corkran heirs as of date of its passage; it was none the less a grant coupled with conditions and charges in favor of third parties, and the Corkran heirs were forced to accept the grant with the conditions attached. They could not accept it as . far as it might be favorable to them, and repudiate its effect as to other parties. . . . There are no persons claiming adverse rights, and, the Government having expressly renounced and waived her own, plaintiff cannot, through her,, urge them.”</p> <p>The court pointed out that counsel, notwithstanding the provisions of article 233 of the constitution of 1898 as to the prescription of three years barring an action seeking to annul a tax title, had brought a direct petitory action against defendants in actual • possession of the property which they claimed. The' court continued:</p> <p>" On the trial of the case defendants established that they and their authors had been in possession as they had alleged; ...”</p> <p>"Defendants evidently relied in their pleadings and proof upon article 233 of the constitution, upon the strength of the defensive position which they would hold, when they should have shown an actual corporeal possession of the property claimed by themselves and their authors for nineteen or twenty years as owners, and have traced their rights back to a tax sale.</p> <p>“. . . Defendants do not plead prescription against the petitory, but upon , an incidentally raised action of nullity. The sale referred to was strictly a sale for taxes. The property was proceeded against as property belonging to Anthony Corkran or his heirs, and, as matters have now shaped themselves, it must be taken to have belonged to them at the time of the sale. The defendants and their authors not only had ■corporeal possession prior to 1898, but it extended before the institution of this suit for three years after the adoption of the constitution of 1898 so that this possession was itself protected permanently from attack by plaintiff by article 233, independently of the merits of the tax title . . . even had the property at the time of the tax sale not been segregated from the public domain, and even though their title to the property had been void. . . . This permanent protection to possession is equivalent to legal ownership. Pillow v. Roberts, 13 How. 472. . . . Plaintiff had certainly the right even on its own theory to attack defendants’ tax title after February, 1897; having failed to institute its proceeding within the three years from the date of the adoption of the constitution, their right of action was forever barred.' In re Lockhart, 109 Louisiana, 740.</p> <p>“We think the defendants have sustained their defense under both of the prescriptions invoked — that of ten years acquirendi causa, and that of three years, under article 233 of the constitution.”</p> <p>As to the jurisdiction of this court.</p> <p>Both ■ parties claim title under a Federal statute, under which the validity of the titles set up is made to depend upon a correct interpretation of the laws of Louisiana, ergo that interpretation is a Federal question. This necessarily follows from the very language of § 709, Rev. Stat. The right granted to this court, under that section, to reexamine and reverse or affirm a final judgmént of the highest court of a State, where any title, right, privilege or immunity is set up under a statute of the United States, and the. decision is against such title, right, privilege or immunity, is not confined to a review of the state court’s interpretation of the statute under-which it was claimed, but extends also to a review of the state court’s decision on the validity of the title set up. Smith v. Maryland, 6 Cranch, 286; Martin v. Hunter, 1 Wheat. 359.</p> <p>As to the jurisdiction.</p> <p>Before it can be said that any right or title under a statute, of the Unitéd States has' been denied, it is necessary to overcome the judgment' of the state court upon a question of local or state law. To do this, the Supreme Court of the United States has no jurisdiction under §25 of the judiciary act. Poppe v. Langford, 104 U. S. 770; Johnson v. Risk, 137 U. S. 309; Lyttle v. Arkansas, 22 How. 193; Telluride Power Co. v. R. G. Western R. R., 175 U. S. 639; S. C., 187 U. S. 569; Dibble v. Land Co., 163 U. S. 63.</p> <p>The question here is not one of the correctness of the state decision brought up by the writ, but of jurisdiction in this court to review the case in the absence of a Federal question. The cases cited by plaintiff in error are not applicable.</p> <p>The Federal question must be considered as not decided when a question of state law intervenes, and is decisive of ■ the case. To give jurisdiction, the Federal question must be necessary to the judgment or decree complained of Detroit R. R. v. Guithard, 114 U. S. 133; Choteau v. Gibson, 111 U. S. 200; State v. Board of Liquidation, 98 U. S. 140; McManus v. O’Sullivan, 91 U. S. 578; Murdock v. Memphis, 20 Wall. 590; Adams v. Burlington R. R., 112 U. S. 127; Chapman v. Goodwin, 123 U. S. 548; Brooks v. Missouri, 124 U. S. 400; Water Works v. Sugar Co., 125 U. S. 29; DeSausure v. Gaillard, 127 U. S. 234; Israel v. Arthur, 152 U. S. 262; Wailes v. Smith, 157 U. S. 276; Hale v. Akers, 132 U. S. 565; San Francisco v. Strell, 133 U. S. 567.</p> <p>Whether the. conclusion reached' was correct depends entirely upon the proper construction and application of the provisions of the state constitution to the facts found. It does not in anywise depend upon the Constitution or laws or authority of the United States. A writ of error to. review such a judgment will not lie. Chapman v. Crane, 123 U. S. 540; Wells v. Goodnow, 150 U. S. 84.</p> <p>Where the decision of the state Supreme Court rests on an independent ground of law, not involving any Federal question, this court has no jurisdiction. Water Works Co. v. Sugar Co., 125 U. S. 18.</p> <p>The ground of the decision in the state courts was independent of any claim of right under the statute of 1897, and its adjudication involved no Federal question and the writ of error must be dismissed. Eustis v. Bolles, 150 U. S. 361; Carothers v. Mayer, 164 U. S. 325; Moran v. Horsky, 178 U. S. 205.</p> <p>If the accident that either one or both of' the parties to the controversy claimed title under the United States was to be considered as sufficient to bring it within the jurisdiction of this court, then every controversy involving the title to such lands, whether it involved merely the inheritance, partition, devise, or sale- of it, would with equal propriety be subject to examination by this court. Moreland v. Page, 20 How. 522; Carpenter v. Williams, 9 Wall. 785; Martin v. Marks, 97 U. S. 345.</p> <p>The mere averment of the existence of a Federal question is not sufficient to give this court jurisdiction; a real and not a fictitious Federal question is essential to give this court jurisdiction oyer the judgment of state courts, and when it appears that the alleged Federal question upon which jurisdiction is invoked is wholly without foundation the writ of error will be dismissed. Sawyer v. Piper, 189 U. S. 154, 156, 157.</p> <p>The attempt to assert a Federal question for the first time in a petition ior rehearing is too late unless it appears that the court entertained the petition and- disposed of the question! Fullerton v. Texas, 196 U. S. 192.</p>

Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194 (1905), was a United States Supreme Court case in which the court held that taxing a corporation's tangible property that is permanently located in other states and is used for the benefit of the corporation in those other states is unconstitutional.

<p>ERROR TO THE SUPREME COURT OP THE STATE OP OHIO.</p> <p>The plaintiff in error in these cases seeks to review the judgments of the Supreme Court of Ohio, affirming judgments Recovered against him by the defendant in error in one of the Circuit Courts of Ohio. The two eases involve the same question, which relates to the validity of the sections of the statute of the State of Ohio in regard to gambling, known as sections 4270, 4273 and 4275 of the Revised Statutes of that State. The sections are set forth in the margin.1</p> <p>The defendant in error commenced these actions in the Court of Common Pleas of Hancock County, under section 4275, for the purpose of making certain judgments, recovered by her against other parties, a lien on the property of the plaintiff in error to the extent of those judgments. The defendant demurred to the petition in each case. One of the grounds of demurrer was that the petition showed a former judgment in favor of defendant for the same cause of action. The demurrers were sustained, and judgments to that effect were affirmed on error by the Circuit Court, but the Supreme Court reversed them and remanded the cases for further proceedings. 62 Ohio St. 132. The defendant then answered, and the cases went to trial in the Common Pleas, where plaintiff recovered judgments in her favor. On appeal in each case, to the Circuit Court of Hancock County, a trial was had de nemo, which; resulted in judgments in favor of plaintiff, 24 Ohio Circuit Court Rep. 333, which were affirmed, without any opinion, by the Supreme Court of Ohio. 70 Ohio St. 437. The defendant below has brought the cases here by writs of error.</p> <p>The following are-the facts upon which the questions arise: At the. March Term, 1895,. of the Court of Common Pibas for Hancock County, the defendant"'in error brought her action under the above section 4273, to recover from the defendants in thát suit, who were named Clifford, Gassman and Marvin (the last named being this plaintiff in error), moneys alleged to have been lost by the plaintiff’s husband in gambling (and won by them), between the twentieth day of March, 1893, and the nineteenth day of March, 1894. She subsequently brought another action at the September Term, 1896, in the same Court of Common Pleas, against the same parties, to recover moneys alleged to have been so lost and won between March 19 and June 19, 1894. In the first action she recovered $3,473 and costs against all three defendants, and in the second she recovered $1,300 and costs against the same defendants. Those judgments were subsequently reversed on. error/ by the Circuit Court, as to Marvin, and affirmed as to the other defendants.</p> <p>The plaintiff below then commenced these actions in the Court of Common Pleas of Hancock .County against the defendant Marvin as the owner of the premises in which the gambling was carried on, to make the judgments theretofore obtained by her against Clifford and Gassman a lien upon the building of which Marvin, the defendant, was the owner, on the ground that he knowingly permitted the same to be used by them for gambling purposes. The petition in each case stated in substance the ownership by defendant Marvin of the property where the gambling was carried on; that Clifford and Gassman carried on gambling there in violation of law; that the defendant knowingly permitted his building to be so used. The petition then alleged the recovery of a .judgment by plaintiff against the defendants Clifford, Gassman and Marvin, for the amount stated in.the judgment; that the action was brought pursuant to section 4273 of the Revised Statutes of Ohio, to recover from the defendants money staked and betted by plaintiff’s husband, and the judgment recovered, was for the amouht found by the court to have been staked and betted by plaintiff’s husband and won by the defendants; that the judgment was, on error, reversed as to Marvin, but affirmed as to. the other defendants, and that the judgment remained in full force as to them and was wholly unpaid; that the said games of chance, “ on which said money was staked and betted and lost” by plaintiff’s husband, to the- defendants Clifford and Gassman, were played at the rooms in defendant Marvin’s building, and while, defendant knowingly permitted the same to be used by them for such purpose. The prayer was to have the judgment declared a lien on the. building, and that it be sold, .etc.</p> <p>. The defendant in his answer in. each case admitted the ownership die premises at the times alleged in the petition, and also the recovery of the judgment as stated in the petition, and that such judgment as to the defendant Marvin was' reversed, and the defendant denied the other allegations in the-, petition. He subsequently filed an amended answer setting-up the Ohio statute of limitations. ' The cases were tried sub-/ stantially as one case in the Common Pleas and resulted in judgments in favor of the plaintiff. Upon appeal' to the Circuit Court a retrial of the case was had. 24 Ohio Circuit Court Rep., supra. On that trial it was admitted that at the times mentioned in the petition the premises described therein were used for gambling purposes by Clifford and Gassman, “that they are.the same premises in which the money described in judgment or represented by the judgments' set up in the petition, are claimed to have been lost,' but not admitting that- plain? tiff’s husband, in fact, gambled with Clifford and. Gassman between March 19, 1893, .and June 20, 1894, it is admitted for the purposes of this action, that if he did, such gambling was done in the building and upon the premises of the defendant described in the .petition.” It-was also conceded that the judgments were rendered against Clifford and Gassman, and that they occupied -no other premises, and conducted no gambling during the periods specified in the petition except upon the premises described in the petition.</p> <p>In the course of the trial the judgments against Clifford and Gassman were offered and received in evidence, under a general objection on the part of the defendant Marvin.</p> <p>The plaintiff also proved, outside the record of the Clifford and Gassman judgments, by a witness called by her, the fact of the gambling and.the amount lost and the place where it was lost. The witness having stated that he had lost the money to the full amount represented by the judgments, in gambling, was asked to state whether he had lost it at Clifford and Gassman’s. This question was objected to at the very moment that the witness answered that he had, the objection being as follows: “Counsel on behalf of defendant Marvin objected to the above answer and moved the court to strike out so much of the answer as relates to the fact and the extent of the loss, on the ground that it is not alleged in the petition and is not an issue of fact in the case. Which motion the court overruled, to which ruling of the court the defendant then and there excepted.” .</p> <p>The witness then again stated, under this objection, that the moneys were lost at gaming in this building and were represented by these judgments, and that the moneys were lost as stated in the petition arid at Clifford and Gassman’s.</p> <p>There was also evidence given on the trial tending to prove that the premises were not only used by Clifford and Gassman for gambling purposes during the times mentioned in the petition, but that such user was with the knowledge of the defendant Marvin, and that he knowingly permitted the same.</p> <p>Upon the trial the defendant gave no evidence.</p> <p>The Circuit Court, in giving judgment for the plaintiff, found these facts, and stated, 24 Ohio Circuit Court Rep., supra, 'that in an action under section 4275, to subject the premises where the gaming was carried on and the money lost, to the payment of a judgment recovered against the winner, such judgment, •when not impeached for fraud or collusion, was conclusive that the moneys lost and winnings secured, which caused the plaintiff’s injury, were lost in gaming, and were won by the defendant in the judgment; that the same were won and lost in violation of law, and that the plaintiff in consequence thereof sustained damages to the amount of the judgment; that such judgments as to these facts are not open to dispute by the owner of the premises, in an action against him under that section. .</p> <p>The defendant Marvin then brought the cases by writs of error to the Supreme Court of the State for review, where they 'were affirmed, without any opinion, but some weeks after the mandate to the court below had been issued from the Supreme Court, that court, on motion of the plaintiff in error, ordered what is termed a “journal entry” to be made, as follows:</p> <p>“Journal Entry.</p> <p>“Whereupon, on motion of said plaintiff in error, William Marvin, the court order it to be certified and made part of the record of this case and of the judgment of affirmance heretofore entered herein, that this action is founded upon sections forty-two hundred and seventy-three (4273) and forty-two hundred and séventy-five (4275) of the Revised Statutes of Ohio on the subject of gaming.</p> <p>“It is further certified that said plaintiff in error set up in his petition in error, asking the reversal of the judgment of the Circuit Court of Hancock County, Ohio, that said sections of said statutes and the proceedings of said Circuit Court had thereunder were repugnant to section one, article fourteen, of the amendments to the Constitution of the United States, and repugnant to article one, section nine, and article one, section ten, and section three of article three of said United States Constitution. Also that said sections of said statutes and the proceedings had thereunder were claimed and set up by plaintiff in error to be an invasion of his private right of property in- violation of said Constitution and amendments. That said judgment of affirmance was in favor of the validity of said statutes and of said proceedings had thereunder, and that they were not repugnant to any of the provisions of said Qonstitution or of the amendments thereto.” *.</p> <p>We coneede that the decisions of the Supreme Court .-of Ohio both under the gaming laws above cited, and under the liquor laws so far as they have touched the points at issue hete, are against -us on the question of the validity of the proceedings and. of the statutes. The question whether the Fourteenth Amendment is violated has seldom been before the Supreme Court of Ohio, and we claim it has not been carefully considered in any gaming or liquor casé. Binder v. Finkbone, 25 Ohio St. 103; Mullen v. Peck, 49 Ohio St. 447; Goodall v. Brewing Co., 56 Ohio St. 257; Goodman v. Hailes, 59 Ohio St. 342; Hoss v. Layton, 3 Ohio St. 353; Cooper v. Rowley, 29 Ohio St. 547; Bellinger v. Griffith, 23 Ohio St. 619.</p> <p>To declare a judgment against one man'a lien-on another’s real estate seems to us, at least, a very dangerous innovation in the law.</p> <p>'The right of trial by. jury is secured to the citizens by the constitution and statutes of Ohio.- Ohio Gonst. 1851, Art. 1, § 5.; Rev. Stát. of Ohio, § 3130. .</p> <p>The police power vested in the' State of Ohio as a sovereign State to safeguard the morals of. the peoplé, and to discourage the vice of gambling must be exercised within the limitations of the Constitution, Federal and state. And that to so shape proceedings as to work a forfeiture or virtual confiscation of a man’s real estate for the private benefit of a third person, or any third person who suffered no personal loss from the gambling complained of is not a valid exercise of such police power. .It violates the personal right of property of the individual, and invades his constitutional right of property, and is tantamount to the taking of it away from him without due process of law. Every exercise of the police power of the State, to be valid, must be reasonable. Railroad Company v. Keith, 67 Ohio St. 279, 292, and cases cited on p. 283; State v. Marble, 72 Ohio St. 21, 33; Booth v. Illinois, 184 U. S. 425; Allgeyer v. Louisiana, 165 U. S. 578, 591; Minnesota v. Barber, 136 U. S. 319; Lawton v. Steele, 152 U. S. 133; Plessy v. Ferguson, 163 U. S. 537, 550; Wisconsin, M. & P. R. R. Co. v. Jacobson. 179 U. S. 287, 301; Holden v. Hardy, 169 U. S. 366, 398; Yick Wo v. Hopkins, 118 U. S. 356; Connelly v. Union Sewer Pipe Co., 184 U. S. 540, 558; Dobbins v. Los Angeles, 195 U. S. 223; Freund on Police Powers, § 63.</p> <p>Defendant in error is the wife of the gambler who lost the money at the gambling, but the right of action by said statute is not given to her as wife of the loser, for she would have had the same statutory right to recover if she had been the- wife of any other gambler. Section 4273 gives the right to sue after six months to “any person.”</p> <p>A volunteer, a third party to the gambling, and who lost nothing by it cannot lawfully recover from the winning gambler a judgment for the alleged' losses of the losing gambler who refuses to prosecute. It would amount to taking private property of one person and giving it to another and this cannot be done. Railroad Company v. Keith, 67 Ohio St. 279, 292; Bowman v. Middleton, 1 Bay, 250; Cooley Const. Lim., 6th ed., 198; Taylor v. Commissioners, 23 Ohio St. 22, 84.</p> <p>A judgment in favor of such third party and against' such gambler' cannot lawfully operate as a statutory hen to' bind the property of the owner of the real estate upon which the gambling was done, such owner being neither a party to the gambling'nor to the judgment. Binder v. Finkbone, 25 Ohio St. is clearly wrong and should not be followed.</p> <p>A judgment in favor of such third party cannot lawfully be held to conclude the owner of the real estate, who is not a party thereto.</p> <p>■ One rule of evidence should not be meted out to the winning gambler who actually pocketed the winnings, if any, and a more strenuous and illiberal rule applied to take the property of the owner from him because of his alleged knowledge and consent to have the gambling done in his rooms;</p> <p>The petitions against plaintiff in error set forth no causes of action, and the demurrers thereto sustained by the lower courts ought also to have been sustained by the Supreme Court of Ohio.</p> <p>The making of this judgment conclusive violated plaintiff in error’s right of property under the constitutions. 2 Tiedeman, State and Federal Control, § 178, p. 871 and authorities cited.</p> <p>Taking of the property from the owner as a punishment for allowing an illegal business, to be conducted in some of'the rooms, and giving it as a gratuity to another person, can find no justification within the protection to the owner, of his private property, guaranteed to him by the Fourteenth Amendment. Cooley Const. Lim., 6th ed., pp. 208, 707; United States v. Reese, 92 U. S. 214; United States v. Cruikshank, 92 U. S. 214; Lawton v. Steele, 152 U. S. 133; Edson v. Crangle, 62 Ohio St. 49.</p> <p>No authority justifies a. law., and the proceedings thereunder, that virtually confiscates a man’s estate and gives the proceeds to a third person, under the circumstances of these cases. 2 Tiedeman, State and Federal Control, § 152, p. 763; Welch v. Stowell, 2 Dougl. (Mich.) 332; State v. Saunders, 66 N. H. 39.</p> <p>As to jurisdiction.</p> <p>This court would not assume jurisdiction because of the complaint that, the holding of the state courts deprive plaintiff in error of any rights guaranteed to him by the Fifth, Sixth, Seventh, Eighth or Ninth Amendments referred to, for these' were not intended to limit the powers of the States in respect •to their own people but to operate on the national government only. Spies v. Illinois, 123 U. S. 131, 132, 166, and cases there cited.</p> <p>Second. The claim here sought to be made is that the statutes of Ohio referred to are repugnant to the Constitution of the United States, but as we have seen no such claim was set up or made in the trial courts of Ohio, it follows that this court would have no jurisdiction to entertain these cases for that reason. Spies v. Illinois, 123 U. S. 131,181; Brooks v. Missouri, 124 U. S. 394; French v. Hopkins, 124 U. S. 524; Powell v. Brunswick County, 150 U. S. 433, 439; Morrison v. Watson, 154 U. S. 111; Miller v. Texas, 153 U. S. 535; Sayward v. Denny, 158 U. S. 180; Giles v. Teasley, 193 U. S. 146, 160.</p> <p>As to ex post facto law: this law has practically been in force since 1824. Q. & C. Stat. 664; 3 Curwen, 2483; 63 O. L. 163; 73 O. L. 250. For distinction between ex post facto and retroactive law, see Sturgis v. Carter, 114 U. S. 511, 519; Society v. Wheeler, 2 Gall. 139; Rairden v. Holden, 15 Ohio St. 207.</p> <p>The statute is in the nature of a police regulation and it is within the power of the State to make and enforce such a regulation. Binder v. Finkbone, 25 Ohio St. 103; Code of Iowa Liquor Sales, § 2422; Polk County v. Hierb, 37 Iowa, 361; Lafrance v. Krayer, 42 Iowa, 147; Berthoff v. O’Riley, 74 N. Y. 509; Hurd’s Rev. Stat., Illinois, §§ 127, 132; Illinois Dram Shop Act, 1 St. and Cur. 973; Bell v. Cassem, 158 Illinois, 45; Booth v. Illinois, 186 Illinois, 43; S. C. 184 U. S. 425.</p> <p>The liability to seizure attaches to the thing. If a man uses his property for the purposes of the violation of the laws, he loses his right to have it at all. Dobbins v. Distillery, 96 U. S. 395, 400; The Palmyra, 12 Wheat. 1; United States v. Brig Malek Adhel, 2 How. 40;Munn v. Illinois, 94 U.S. 114; Schooner Ann, 9 Cranch, 289; The Little Charles, Brockenbrough’s Rep.; United States v. Distillery, 2 Abbott, 192; Rev. Stat., U. S., §§ 2802, 2867.</p> <p>Under § 1 of the Fourteenth Amendment, the privileges and immunities not to be infringed are those of citizens of the United States, for nothing is said there of those .belonging to citizens of the States. This is a remarkable omission if it was intended thereby to protect him against:the legislation of his own State. Slaughter House Case, 16 Wall. 36, 37.</p> <p>The right to a jury trial did not exist in this case; but if it did the right has been waived. No demand-was made for such trial; no objection was made to the trial court proceeding to try it, and it is too late on error in the Supreme Court of the State for the first time to complain that there should have been a jury trial. Elithorpe v. Buck, 17 Ohio St. 72; Adler v. Whitbeck, 44 Ohio St. 568; Cockran’s Heirs v. Loring, 17 Ohio 409, 425; Coal & Oil Co. v. Verner, 22 Ohio St. 372; Culver v. Rodgers, 33 Ohio St. 637; Bonewitz v. Bonewitz, 50 Ohio St. 373.</p> <p>This is not a case for a jury. No judgment for money is sought. It is hot an action to recover money but to. enforce a statutory lien. Binder v. Finkbone, supra; Trout v. Marvin, 62 Ohio St. 132.</p>

<p>A national bank is an instrumentality of the United States, the administration whereof is vested in the Comptroller of the Currency, who, in case of insolvency, appoints the receiver and directs his acts. The liability for assessment on the stock dates from, the order of the Comptroller who decides when it is necessary to institute proceedings therefor, and his determination is conclusive. This power is derived from a statute of the United States and cannot be controlled or limited by state statutes.</p> <p>Where the state court has held ths , a suit to collect assessment by the receiver of a national bank under directions of the Comptroller of the Cur- . rency is barred by a state statute of limitations, a Federal question is in- • volved and the writ of error will not be dismissed.</p>

<p>ERROR TO the SUPREME COURT OP THE STATE OP FLORIDA.</p> <p>The facts are stated in the opinion'.</p>

Held: on a discussion of the evidence that the deeds sufficiently identified the land and that the plaintiff was 'entitled to go to the jury on the question of possession.

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF WEST VIRGINIA.</p> <p>This was an action of assumpsit brought in ■ the Circuit Court of the United States for the Northern District of West Virginia by, as described in the summons, “Francis B. Sweeney, a resident in and citizen of the State of New York, and Halbert J. Porterfield, a resident in and citizen of the State of Pennsylvania, partners doing business under the firm name and style of Sweeney & Porterfield,” against “Carter Oil Company, a corporation created, organized and existing under and by virtue of the laws of West Virginia, and as such a citizen thereof,” to recover damages in the sum of $20,000.</p> <p>The declaration, filed May 4, 1903, followed the summons as to the citizenship of the parties, and contained ten special counts, most of them laying the damages at $20,000, and the common counts. An account stated was annexed giving items, running from 1900 to 1901, aggregating $20,912.42.</p> <p>The record discloses that on February 3, 1904, the court entered an order overruling a motion “to dismiss this action for the want of jurisdiction apparent upon the face of the proceedings in this, that the plaintiffs are residents of different States seeking to sue a defendant of another State.” On February 15, 1904, the court set aside that order, sustained the motion to dismiss, and entered judgment for defendant. May 10, 1904, the judge holding the Circuit Court filed a certificate “that the judgment of dismissal made in this cause on February 15, 1904, at the present term of this court, is based solely on the ground that the record does not show that the controversy is one, in my opinion, betweén citizens of different States, but that it appears from the record that one-of the plaintiffs, to wit, Francis B. Sweeney, is á resident in and citizen of the State of New York, and that Halbert J. Pprterfield is a resident in and citizen of the State of Pennsylvania, while the defendant is a corporation created arid existing under and by virtue of the laws of the State of West Virginia, and domiciled in the Northern District of West Virginia, and no other ground of jurisdiction appears from the record; and the case is dismissed only for the reason above stated, that 'is, that the controversy is not between citizens of different States, as is required by the Federal statutes to confer jurisdiction on this court, but one of the plaintiffs being a citizen of one State, to wit, thé State of New York, and the other plaintiff being a citizen of the State of Pennsylvania, cánnot, in my judgment, be joined as plaintiffs and sue in this court, a défendant residing in the Northern District of. West Virginia, and consequently the proper citizenship of different States does not exist, and that the Circuit Court of the United States for the Northern District of West Viriginia has no ■jurisdiction.” This writ of error was granted the same day.</p> <p>Smith v. Lyon, 133 U. S. 315; Strawbridge v. Curtiss, 3 Cranch, 267; Removal Cases, 100 U. S. 457; Young v. Parker, 132 U. S. 26; Ballin v. Lehr, 24 Fed. Rep. 193; Pitkin County Mining Co. v. Markell, 33 Fed. Rep. 386, quoting debate in Cong. Rec., March 3, 1887, vol. 18, p. 2724; Roberts v. Railway Co., 104 Fed. Rep. 577; 18 Ency. Pl. & Pr. 193, 195; 1 Foster’s Fed. Prac., 3d ed., 76; Hooe v. Jamieson, 166 U. S. 395; Davis v. County Court, 88 Fed. Rep. 705; Jellinik v. Copper Co., 177 U. S. 1; Iron Co. v. Stone, 121 U. S. 631; Cotton Press Co. v. Insurance Co., 151 U. S. 368; Carter on Jurisdiction of Federal Courts, 120; McCormick v. Walthers, 133 U. S. 41; Coal Company v. Blatchford, 11 Wall. 172.</p> <p>Act of March 3, 1887, ch. 373, § 1; act of August 13, 1888, ch. 866, § 1; act of March 3, 1891, ch. 517, §§ 4, 5, 6; Harvey v. Richmond Railway Co., 54 Fed. Rep. 19; Miller v. Penna. R. R. Co., 91 Fed. Rep. 289; Laskey v. Mining Co., 50 Fed. Rep. 634; Grace v. Am. Cent. Ins. Co., 109 U. S. 278; Peper v. Fordyce, 119 U. S. 467; Minnesota v. Northern Securities Co., 194 U. S. 48; Thomas v. Trustees, 195 U. S. 207; Black’s Law Dict., 1032; Strawbridge v. Curtiss, 3 Cranch, 267; Hepburn v. Elzy, 2 Cranch, 445; New Orleans v. Winter, 1 Wheat. 91; Iron Company v. Stone, 121 U. S. 632; Barney v. Baltimore, 6 Wall. 280; Smith v. Lyon, 133 U. S. 315; Merchants v. Insurance Company, 151 U. S. 368; Hooe v. Jamieson, 166 U. S. 395.</p>

Held: That as the jurisdiction of the Circuit Court as exercised was dependent entirely on diversity of citizenship, the judgment of the Circuit Court of Appeals was final and the writ of error could not be maintained. 2.

This was a suit to quiet title to certain real estate, brought in the Superior Court of .King County, Washington, by Sarah Woodward and Sarah Woodward as executrix of Henry S. Woodward, against H. C. Taylor and others. Sarah Woodward resigned her letters as executrix and John H. McCraw wras appointed administrator with the will annexed, and thereupon was made a co-plaintiff.

This suit involves some questions as to the relative rights of the parties in the use of a railroad passenger station and depot grounds, and in the use of the public sidewalk and street adjacent to such station and grounds.

<p>The Board of Supervisors of the- city and county of San Francisco have full authority under the constitution and laws of the State of California tó make and enforce within that city and county all such reasonable sanitary and other regulations as are not in conflict with any general statute or with the constitution, and which have for their object the preservation of the public health by whatever cause endangered.</p> <p>Where the power of the authorities to grant privileges to' be exercised for public benefit is not limited by law in that respect the duration of the period, for which the privilege is granted is' a matter in their discretion to be determined on grounds of public policy, and, even if such privileges ought not be granted for long periods, the courts cannot declare ' a-grant void merely on that ground.</p> <p>Where a regulation enacted by competent public authority for the protection of the public health has a real, substantial relation to that object the courts will not strike it down on grounds of public policy or expediency.</p> <p>Where the basis of the claim is that an ordinance is unconstitutional as taking private property for public use without compensation, the claim must be made by one whose property is taken, and it cannot be raised on his behalf by others whose property is not taken.</p> <p>An ordinance of competent municipal authorities based upon reasonable grounds for the cremation of garbage and refuse at a designated place as a means for the protection of the public health is not a taking of private property for public use without compensation within1 the meaning of the Federal Constitution even though such garbage and refuse may have some elements of value for certain purposes.</p> <p>The exclusive privilege granted to one company by the Board of Supervisors of San Francisco to dispose of the garbage in the city and county of San Francisco held not to be void as taking the property of householders for public use without compensation.</p>

Held: in this case, it appearing that every person within the county affected was accorded equal protection of the law prevailing there. The facts are stated in the opinion. Mr. Fred A. Baker for plaintiff in error. Mr. T. E. Tarsney and Mr. John B. Corliss for defendant in error.

Held: that: When the patent issues to a homesteader the full legal title passes to the patentee and he may do with the land that which he sees fit.

By the admissions in the pleadings in this case, on December 1,1890, the defendants in error, together with one Edmund F. Gross, as parties of the first part, entered into a contract with the plaintiff in error, which stipulated: “That for and in consideration of the covenants hereinafter mentioned, the parties of the first part agree to pay one-fourth of all expenses accruing to the party of the second part in making final proof to S.W. i of the N.W. the N. I of the S.W. i,…

Held: that: Where the decree appointing a special master gave him express authority to sue to collect all assets of the bankrupt, the fact that he was merely designated as special master did not deprive him of the special powers to sue conferred on him by the decree.

Held: as not to warrant the citation of many authorities, that the first ten amendments to the *380 Federal Constitution operate on the National Government only, and were not intended to, and did not, limit the powers of the States in respect to their own people. Spies v. Illinois, 123 U. S. 131 ; Brown v. New Jersey, 175 U. S. 172 , 174.

The facts are stated in the opinion. If this court has jurisdiction of this case, then it must determine all cases where the United States was the grantor, and a controversy arises as to beneficial interests. It has not been the policy of this court to determine questions involving the beneficial or equitable title to real estate, although the title had been acquired from the United States. Blackburn v. Portland Gold Mining Co., 175 U. S. 571.

The facts are stated in the opinion. In a -case like this the courts will look into the record of proceedings in the Land Department, not for the purpose of ascertaining whether -that Department came to a correct conclusion of fact from conflicting evidence, but to determine whether or not the judgment of the Department was right and just as between the parties and not the result of: 1. Error of law committed by the Department officials; 2.

Held: that the two phrases meant the same thing and interpreted the word “interior,” and that the contemporaneous construction of the Commissary General 'ip refusing to take supplies for a post about eight miles from Havana- and' the camping ground.ior that city, that the contract applied only to posts remóte from the seacoast, was correct; Also helfj, that the written contract could ■ not be extended to places not…

<p>Section 1754 of the Iowa Code of 1897, prohibiting combinations of insurance companies as to rates, commissions, and manner of transacting business, is not unconstitutional as depriving the companies of their property-or of their liberty of contract within the meaning of the Four- .. teenth Amendment and the auditor of the State will not be enjoined from enforcing the provisions of the statute.</p> <p>A company lawfully doing business in a State is no more bound by a general unconstitutional enactment than á citizen of that State.</p>

' This is an appeal, and cross-appeal from a judgment of the Court of Claims upon a demand for extra compensation in the performance of a contract made on December 21, 1892, between the United States, represented by the Postmaster General, and the Utah, Nevada and California Stage Company, for the rendition of cértain covered regulation wagon, mail messenger, transfer and station service on mail route •number 207,003, in the city of New York, for a term from July 1, 1893, to…

’ FOR THE DISTRICT OF VERMONT. The appellant, Mary Mabel Rogers, having been convicted and sentenced in the county court of Bennington in the State of Vermont of the crime of murder in the first degree, filed her petition on June 19, 1905, for a writ of habeas corpus against the sheriff and superintendent of the stake- prison, in the District Court of the United States for the District of Vermont. The petition, having been heard, was. denied on June 22, 1905.

of the opinion delivered by the Chief Justice of that court, are as follows: I. The buying and selling of alcoholic liquors for a profit stamps upon the South Carolina dispensary system a commercial character in addition to that of a police regulation. II.

This was a bill in equity filed March 4, 1903, by Manigault to enjoin the damming or otherwise obstructing Kinloch Creek, in the county of Georgetown, South Carolina. A demurrer to the bill was sustained, and the bill subsequently dismissed. See 123 Fed. Rep. 708. It seems that, in 1898, the plaintiff and the two defendants, Springs and Lachicotte, together with one Ford, were adjoining riparian owners on the Santee River, at the mouth of Kinloch Creek.

Plaintiffs in error, suing as aliens and residents of Ant-' werp, Belgium, commenced this action in the Circuit Court of the United States for the Northern Division of the Northern District of Illinois, to recover damages for an alleged libel'. Two Illinois corporations and a number of persons were made, defendants.

Held: that the State had no jurisdiction, because, although the property was temporarily within the State, it was not there permanently.

Held: that: There is. a vital difference between an attempt of-the Government to review a verdict of acquittal in the court of first instance, and the action of the accused in himself appealing, from a judgment, which convicts him of one offense while acquitting him from the higher one charged in the indictment. Keener v. United States, 195 U. S. 100 , distinguished.

<p>APPEALS FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.</p> <p>The facts are stated in the opinion.</p>

APPEAL PROM THE CIRCUIT COURT'OP THE UNITED STATES POR THE NORTHERN DISTRICT OP ALÁBAMA.

<p>1. The Northern Pacific Railroad Company could not acquire a vested interest in particular lands, within or without place limits, merely by filing a map of general route and having the same approved by the Secretary of the Interior, although upon the definite location of its line of road and the filing and acceptance of a map thereof in the office of the Commissioner of the General Land Office, the lands within primary or place limits, not theretofore reserved, sold, granted or otherwise disposed of and free from preemption or other claims or rights, become segregated from the public domain, and no rights in such place lands will attach in favor of any settler or occupant, after definite location.</p> <p>2. No rights to lands within indemnity limits will attach in favor of the railroad company until after selections made by it with the approval of the Secretary of the Interior.</p> <p>3. Up to the time such approval is given, lands within indemnity limits, although embraced by the company’s list of selections, are subject to be disposed of by the United States or to be settled upon and occupied' under the preemption and homestead laws of the United States.</p> <p>4. The Secretary of the Interior has no authority to withdraw from sale - or settlement lands within the indemnity limits which have not been previously selected, with his approval, to supply deficiencies within the place limits of the company’s rOad.</p>

<p>APPEAL PROM THE COURT OP CLAIMS.</p> <p>This is an appeal from a judgment of' the Court of Claims, rejecting a claim of the Russian-American Packing Company for the value of certain improvements erected by it on the island of Afognak, off the coast of Alaska. The Packing Company was incorporated in 1889, under the laws of California, for the purpose of carrying on the business of packing salmon on the island of Afognak; and for that purpose purchased and. shipped materials for a cannery and buildings to be used in canning salmon, and also, without authority or license from, the United States,, took possession of a tract of about 159.52 acres of land, and erected thereon buildings, machinery, etc., at a cost of about $45,000. Prior to this time no one had been in possession of this tract. Claimants remained in possession for four years, and until December 24, 1892, and carried on a canning business at a profit of about $100,000, about $35,000 of which .was subsequent to the passage of the act of March 3, 1891.</p> <p>On April 1, 1892, claimant applied to the' Surveyor General for a survey of the-tract, under the act.of 1891, and deposited in the subtreasury at San Francisco $433.80, as the estimated cost' of such survey. The survey was made, was approved March 15, 1893, and. forwarded to the Commissioner of the General Land Office. Prior to December 24, 1892, the tract so occupied had. not been reserved by the United States for fish culture, or any other purpose; nor had the same been purchased or applied for by any other person. On that day the President issued a, proclamation declaring the whole, island reserved for the purpose of establishing thereon a United States fish culture station, and warned all persons to depart therefrom. In July, 1893, claimant’was informed of this proclamation by agents of the Government, and ordered to leave the island, which it did, and has not returned thereto. On January 15,1895, the Commissioner of the General Land Office, in passing upon the survey transmitted to him; addressed a letter to the Surveyor General, calling attention to the President’s proclamátion, and rejected the survey on that ground, as well as upon the ground that the survey was not in square form, as required by statute. No appeal was taken from his decision.</p> <p>The court-found as a conclusion of law that claimant was not entitled to recompense for the value of the improvements, nor for the loss of profits arising from its removal from the island; but was entitled to recover the amount deposited for the expense of the survey.</p> <p>The United States is liable, to the claimant for the loss of its improvements placed upon the public lands in Alaska under a claim of occupancy, and the loss of its business carried on upon such lands caused by the act of the executive branch of the Government in withdrawing same from disposition and reserving them for public purposes. The Government is so.liable, both upon general principles of law and also by virtue of the act of Congress approved May 17,1884, 23 Stat. 24.</p> <p>The Packing Company entered upon Afognak Island in the year 1889 and erected many and valuable improvements thereon, relying upon its right of possession and its belief that Congress would by future legislation provide a means whereby it and other claimants to public lands in Alaska could obtain title thereto. Congress did enact such legislation by the act of March 3, 1891, 26 Stat. 1095.</p> <p>The Yosemite Valley Case, 15 Wall. 77, does not apply. See Lytle v. Arkansas, 9 How. 333.</p> <p>The declaration in § 8 of the act of May 17, 1884, was a solemn assurance by Congress that the persons in possession of the public lands of Alaska should be permitted to acquire title thereto without being disturbed in their possession. It was in the nature of a statutory contract whereby the United States obligated itself to protect the settlers of Alaska and confer upon- them title to the lands occupied by them without the danger of any interference or molestations by others, even the United States itself. Young v. Goldsteen, 97 Fed. Rep. 303; United States v. Tichenor, 8 Sawyer, 142, 152.</p> <p>This contractual obligation of the Government under the act of 1884 was similar to its obligations under an Indian treaty. United States v. Carpenter, 111 U. S. 347.</p> <p>All acts of Congress providing means of disposing of its vacant public lands are in the nature of contracts, obligating the United. States to grant the individual a patent whenever he has complied with the provisions of law in that particular case. Whenever the individual, in good faith, initiates a claim by settlement, occupation and improvements, he thereby acquires an inchoate right,- which must ripen into a perfect title,- whenever he has completed his period of residence, amount of cultivation, or other specific requirement of the law. Stark v. Stars, 6 Wall. 415; Garland v. Wynne, 20 How. 6; Lindsay v. Hawks, 2 Black, 554; Landes v. Brandt, 10 How. 348, 372; Gibson v. Choteau, 13 Wall. 92, 100; Land Company v. Rush, 168 U. S. 589; In re Hastings & Dakota Ry., 18 L. D. 511, 518; Hagen v. Nor. Pac. Ry., 26 S. Dak. 312; Wilcox v. Jackson, 13 Pet. 498, 513; L. L. & G. Ry. v. United States, 92 U. S. 733; Newhall v. Sanger, 92 U. S. 761; Cornelius v. Kessel, 128 U. S. 456; Brown v. Hitchcock, 173 U. S. 478.</p> <p>It is contrary to the most elementary principles of public land law to say that patent alone can divest the United States of 'the power of disposing of land, and it is equally erroneous to say that no reciprocal obligation exists unless the United States" can force the individual claimant to complete his claim by actual payment for the land. Every act of Congress authorizing settlement upon or entry of its vacant public lands holds out the obligation of the Government to grant the patent. .The actual settlement, the occupation and improvement of the land, are the material factors, and rights are thereby acquired which' the United States' cannot and will not repudiate. Osborn v. United States, 33 C. Cl. 304; and see General Circular, Land Department, June 3, 1891, promulgating regulations under the act ’ of March 3, 1891.</p> <p>The deposit which was made was in excess of the purchase price of the land, and thus was a complete compliance by the claimant with each and every requirement of the law, and brings it well within the decisions cited supra.</p> <p>The. mere fact of the entry by appellant upon these lands five years after, the passage of the act of 1884, created no contractual obligation, uiider said act oh the part of the United States to convey title to the same or to respond in damages for failure so to do.</p> <p>Young v. Goldsteen, 97 Fed. Rep. 303, does not sustain appellant’s contention. When the appellant occupied these tends in 1889 and erected its improvements thereon it did so not only without authority or license under the act of 1884, but in the face of an express warning by Congress that nothing in the act should be construed as a promise.pr agreement to put in force in' that district the general land laws of the United States. *</p> <p>Appellant cannot recover under any provision in the act of 1891. Under that act the President had authority tP withdraw Afognak Island and appellant settled. thereon with knowledge of that fact. The contention of appellant that acts of Congress as to disposal of public lands are contracts does not avail as the act itself reserved this right to withdraw the island from sale, and appellant’s acts were done with knowledge of that power after the act, and it was a mere trespasser before that time. Yosemite Valley Case, 15 Wall. 77, 87; Frisbie v. Whitney, 9 Wall. 187, 194; United States v. Braddock, 50 Fed. Rep. 669; 8 Ops. Atty. Genl. 72; 10 Ops. Atty. Genl. 57; 11 Ops. Atty. Genl. 462. Lytle v. Arkansas, 9 How. 333 distinguished. Appellants acquired no vested interest that could not be impaired by a subsequent withdrawal of the land for sale. Rector v. Ashley, 6 Wall. 151; Campbell v. Wade, 132 U. S. 37.</p> <p>Appellant’s contention that the deposit was in excess of the total price of thelands, and so constituted payment of the purchase price, is wholly without merit. The deposit was made, not as payment for the land', but solely'to pay, first, the estimated cost of making the survey, and,,second,'the estimated cost of the clerical work necessary to be done in the office of the ex officio, surveyor-general. This was the only, object of the deposit, and it was required before the ex officio surveyor-general'was émpowered to even authorize the survey to be made.' Where the amount thus deposited is greater .than the cbst of the land, the triplicate certificate may thereafter at the final.stage of the proceedings be surrendered in payment of the land, but it becomes available for .'this purpose only after all the other requirements had been fully complied'with under the act.' Rev. Stat. §2403.</p> <p>' The United States derived no benefit whatever from the erection'of these , buildings. The appellant company has not attempted to sell or otherwise, dispose: of or to remove the buildings from this land:.</p>

This is an appeal taken from a judgment rendered by the Supreme Court of the Territory of New Mexico quashing a writ of prohibition issued by >|hat court to the defendant Crollott, a Justice of the Peace of the County of Bernalillo, which commanded him to desist and refrain from any further proceedings in five several actions of forcible entry and detainer, instituted by one Cleland before said Justice and against Alexander and four other parties.

<p>A bicycle manufacturing company made a contract with an inventor to us-', obtain patents for, and exploit the sale of, improved coaster brakes, A>r which applications for patents were then pending, the company to )e relieved from payment of royalties in case of adverse action of the patent office. Subsequently the company having acquired and used other inventions the inventor brought suit alleging neglect,to use diligence in obtaining the patents for, or pushing the sales of, his brakes and demanding royalties on all coaster brakes used and sold by the company. Held that: Although the company might not be able to obtain the patents as expected it could not rescind the contract without returning what it bad received under it and it must pay royalties on any devices used by it embodying the invention, unless and until final adverse action by the patent office.</p> <p>That as the contract was not made on the footing that no such brakes had ever been invented the inventor could not claim the entire field and was not entitled to royalties on other brakes used by the company radically different from his both in construction and operation and which could not have been an infringement of any patent contemplated by the contract.</p>

- The facts are stated in the opinion. ' The statute as construed by the Supreme Court of the State, denies to plaintiff in error the equal protection of the laws. The sole circumstance relied upon to bring the defendant, a private mining company, under the operation of the statute, is that it used steam power trains in moving earth from cut to-fill.

<p>Appeal from the District Court of the United States for the Southern District of .Georgia.</p>

<p>In error to the Supreme Court of the State of Iowa.</p>

<p>In error to the Supreme Court of the State of Illinois.</p>

<p>In error to the Supreme Court of the State of Illinois.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of California.</p>

<p>Appeals from the District Court of the United States for the Northern District of New York.</p>

<p>In error to the Supreme Court of Errors of the State of Connecticut.</p>

<p>Appeal from the Court of Appeals of the District of Columbia.</p>

<p>In error to the Supreme Court of the State of Missouri.</p>

<p>In error to the Supreme Court of the Philippine Islands.</p>

<p>In error to the Court of Appeals of the State of Kentucky..</p>

<p>In error to the United States Circuit Court of Appeals for the Eighth Circuit.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of California.</p>

<p>Appeal from the United States Circuit Court of Appeals for the Fifth Circuit.</p>

<p>In error to the Kansas City Court of Appeals for the State of Missouri.</p>