Volume 237 — United States Reports

The facts are stated in the opinion. The District Court was without jurisdiction of the action. The claim of the petitioners was presented to the Commissioner of Internal Revenue and by him rejected. The remedy of petitioners was therefore an action against the Collector of Internal Revenue and not against the United States. Edison Electric Co. v. United States, 38 Ct. Cl. 208; Nichols v. United States, 7 Wall. 122, 129; Sybrandt v. United States, 19 Ct.

The facts, which involve the construction of § 9, Article I, of the Federal Constitution, prohibiting any tax or duty on exports and the validity of stamp taxes under the War Revenue Act of 1898 on policies of marine insurance on exports, are stated in the opinion. The claim of the petitioner was presented to the Commissioner of Internal Revenue and by him rejected.

The facts, which involve the jurisdiction of the District Court sitting as a Court of Claims and also of the validity of a tax imposed under the Corporation Tax Law of 1909, are stated in the opinion. The District Court was without jurisdiction of the suit. The remedy, if any, is an action against the collector, expressly provided by statute. Nichols v. United States, 7 Wall. 122.

The.facts, which involve a claim for profits on a contract for sand with the United States for the Washington City Filtration Plant which the United States refused to receive, are stated in the opinion.

The facts, which involve the rights of allottee Indians and the power of the Government to purchase improvements and make new allotments where the land allotted is needed for reclamation purposes, are stated in the opinion.

The facts, which involve the constitutionality under the commerce clause of the Federal Constitution of a statute of Florida prohibiting the sale or shipment of citrus fruits which are immature or otherwise unfit for consumption, are stated in the opinion.

<p>The Quapaw Indians are still under National .tutelage; the guardianship of the United States continues notwithstanding the citizenship conferred upon allottees.</p> <p>Where Congress has imposed restrictions upon alienation of an allotment, the United States has capacity to sue for the purpose of setting aside conveyances or contracts transferring such restrictions.</p> <p>Restrictions under the act of March 2,1895, being for a specified period, were absolute and bound the land for that period whether in the hands of the allottee or his heirs except as to leasing it for the specified terms permitted by the act of June 10, 1896, or by the supplemental act of June 7, 1897; neither of those acts gave the allottee or his heirs any power to dispose of his'or their interest in the lands subject to the lease or any part of it,</p> <p>Assignments of interest in rents and royalties which pertained to the reversion of the land of 1896 and 1897 are invalid.</p> <p>Rents and royalties already accrued from lands are personal property, but those to accrue are a part of the estate, remaining in the lessor. “Overlapping leases” of Indian allotments are abnormal and the practice of making them facilitates abuses in dealing with ignorant and inexperienced Indians.</p> <p>The rule that a general pow^f to lease for not exceeding a specified period, without saying either in possession or on reversion, only authorizes a lease in possession and not in futuro, applies to' the power given allottee Indians by the acts of 1896 and 1897 and leases made for the full period subject to an existing and partly expired lease for the same number of years are unauthorized and void.</p>

The facts, which involve the construction of the Federal Employers’ Liability Act and its application to employés of others than the carrier, are stated in the opinion.

' The facts, which involve the construction of the Act to Regulate Commerce and the right of the carrier to recover from a passenger the' amount of an undercharge on sale of railroad tickets, are stated in the opinion.

Held: that the later lessees were entitled to be credited with the cost of improvements and operation, incurred prior to, but not after, the date on which they were actually notified of the rights of the earlier lessee. The continued taking thereafter was a wilful taking and appropriation of the property of another. 202 Fed. Rep. 106 , reversed. The facts are stated in the opinion. Mr. Jos.

<p>CERTIORARI to the circuit court of appeals for the SEVENTH CIRCUIT.</p> <p>The facts are stated in the opinion.</p>

<p>Section 8 .of the Act to Regulate Commerce gives the shipper a right of action against the carrier for damages occasioned by his doing an act prohibited by the statute, and § 9 gives the shipper the option to proceed either before the'Interstate Commerce Commission or in the Federal courts.</p> <p>Construing §§ 8 and 22, however, in connection with the statute as a whole, the Act to Regulate Commerce is both declaratory and creative, and while shippers are given new rights, existing causes of action are preserved and the jurisdiction of state courts is not superseded, in cases in which the decision does not involve the determination of matters calling for the exercise of administrative power and discretion of the Commission or relate to subjects over which exclusive-jurisdiction is given to the Federal courts.</p> <p>While the Federal courts may have exclusive jurisdiction of a suit ■ brought to declare that a rule of practice promulgated by the carrier is unfair, a suit for damages occasioned by the violation or discriminatory enforcement of the carrier’s, rule, fair on its face and not attacked as unfair, does not involve administrative questions but only those» of fact; and even though for damages arising in interstate commerce, such a suit is not within the exclusive jurisdiction of the Federal courts, but may be prosecuted either in those courts or in the state courts.</p> <p>The state courts have jurisdiction of an action of the shipper against the carrier to furnish a reasonable number of cars, whether the action be treated as one for breach of the common law duty to furnish the cars or for unjust discrimination in allotting cars to another shipper in violation of the carrier’s own rule to furnish all the shippers on an equal pro rata basis. The jurisdiction of the state court is not defeated because the breach of common law duty is also an unjust discrimination.</p> <p>Motive for breach of common law duty-of the carrier to furnish a reasonable number of cars is immaterial, and what was a proper supply under the circumstances is a matter of fact.</p> <p>While, ordinarily, a shipper on reasonable demand is entitled to all the cars it can promptly load, that right is not absolute, and a carrier is not liable for failure to supply cars as the result of sudden and great demands which it had no reason to apprehend, but in a case of car shortage it is bound to treat shippers fairly if not identically.</p> <p>Where there is a shortage and the shipper complains that the carrier’s rule of distribution is unfair, the question is for the Commission, Morrisdale Coal Co. v. Penna. B. R., 230 U. S. 312, but where the shipper does not attack the rule itself but complains that the carrier refused to furnish the number of cars it was entitled to under the rule, while other shippers were furnished more cars than they were entitled to under the same rule, a preliminary finding of the Commission is unnecessary; and even if the' shipments were interstate the state and Federal courts have jurisdiction.</p> <p>An exception is properly disallowed by the state | appellate court, and will be disregarded by this court, if no relevant testimony was offered to support it and no point thereon raised in the trial court.</p>

The facts, which involve the constitutionality under the due process of law provision of the Fourteenth Amendment of certain provisions under the tax law of the State of California, in regard to amount of property and its sale for taxes, are stated in the opinion.

The facts are stated in the opinion. Federal questions which the highest state court is by its settled practice justified in disregarding, either because not assigned or not noticed or relied upon in the brief or argument of counsel will not serve as a basis of a writ of error from the Federal Supreme Court.

<p>CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.</p> <p>These two test cases raise the question of the power of the Collector of Customs to make a reliquidation more than a year after the duty on foreign merchandise has been paid and the imported goods have been removed for consumption. The cases are here on a certificate which shows that in 1909 Sherman & Sons Company imported certain laces from Syria and Egypt. The merchandise was entered at the Port of New York and the duty thereon was assessed by the Collector. The amount of duty thus liquidated was paid by the importer and the goods were removed in 1909.</p> <p>More than four years thereafter the Collector made a new assessment, or reliquidation, by which he increased the amount of duties to be paid on the laces. Notice of-the reliquidation was given by the Collector to Sherman & Sons Company. They filed no protest within the 15 day period mentioned in the Tariff Act of 1909, 36 Stat. 100, § 14, and thereafter two suits were brought by the Government, in the United States District Court for the Southern District of New York, for the recovery of the difference between the duty assessed and paid in 1909 and that fixed by the reliquidation in 1913.</p> <p>The only substantial difference between the two cases is. that in' No. 1 the suit was on a Liquidation Order which contained no charge that the importer had been guilty of fraud; while in No. 2 the action is based on a Reliquidation Order which contained a statement that the “ entries were reliquidated by the said collector, as aforesaid, pursuant to,his findings and decisions that they, as well as the consular invoices presented with them, upon, the basis of which the said entries were originally liquidated, as aforesaid, were false and fraudulent, and that the original liquidations and the delivery of the said goods, wares, and merchandise, aforesaid, had been effected by and through the fraud of the defendant.”</p> <p>In both suits the District Court sustained the demurrer and the United States electing not to plead over, both actions were dismissed. The cases were then taken to the Circuit Court of Appeals, which certified the following questions:</p> <p>“ (1) • Can an importer of dutiable merchandise, when sued by the United States for a balance of duties found to be due upon a reliquidation of the entry, attack the validity of the reliquidation, where it appears upon the face of the complaint that the reliquidation was made more than a year after the entry, and where the complaint contains no allegation of the presence of a protest or of fraud, or is the remedy provided by the Customs Administrative Act (act of June 10, 1890, and act of August 5, 1909, 26 Stat. 136 and 36 Stat. 100), viz,, of protest, payment of the full amount of duties ascertained to be due upon the reliquidation and appeal to the board of general appraisers, and thence to the courts, the only way in which he may attack the validity of the reliquidation?</p> <p>“ (2) Does the complaint in action No. 1 herein, all of the allegations in which, with the exception of the formal allegations of sovereignty and incorporation, are herein-above set forth, state a good cause of action?</p> <p>“ (3) If the foregoing question is answered in the negative, then is it sufficient for the United States in order to state a good cause of action to allege the finding or decision of the collector that there was fraud, as in action No. 2 herein, without alleging in what connection the collector had made his finding or decision of fraud, i. e., whether he had found fraud in the dutiable value, or in the classification, or in the quantity of the merchandise, and without alleging the presence of fraud as a fact or the facts constituting the fraud?”</p> <p>The special method and special tribunals provided by Congress for the correction of errors of tax officials are exclusive, and if, under the tariff act of 1909, the importer fails to protest and appeal to the Board of General Appraisers and the United States Court of Customs Appeals he cannot contest the validity of the liquidation or re-liquidation of duties when sued by the Government in the District Court.</p> <p>The action or decision of the collector of customs upon the facts when acting in a discretionary or judicial capacity is conclusive and cannot be reviewed by the courts except when and in the manner permitted by statute.</p> <p>The act of June 22, 1874, § 21, is a statute of limitation. It can be taken advantage of by importer only by means, of a plea or answer as a matter of defense.</p> <p>The objection that the rule contended for by the Government casts upon the importer the burden of proving a negative, i. e., the absence of fraud in the original entry or liquidation, is not a sound one.. Such a burden is often cast upon one of the parties to a legal controversy.</p>

The facts, which involve the jurisdiction of the District Court of the United States under § 24 Judicial Code, are stated in the opinion.

The facts, which involve the rights of a homestead after entry and before patent as against trespassers, are stated in the opinion.

Plaintiffs in error filed their bill of complaint in the Pulaski County Chancery Court, a state court of general chancery jurisdiction, praying an injunction against the City of Little Rock, its mayor and other officers, to restrain them from enforcing an ordinance passed by the city council to regulate livery stables.' The ordinance recites that “The conducting of a livery stable business within certain parts of the City of Little Rock, Arkansas, is detrimental to the…

Malloy v. South Carolina, 237 U.S. 180 (1915), was a case in which the Supreme Court of the United States held that retroactively changing the execution method does not violate the Ex post facto clause.

The facts, which involve the rights of creditors of a bankrupt as against those of the holder of an unrecorded chattel mortgage under the laws of the State of Michigan, are stated in the opinion.

' The facts, which involve the validity under the due process clause of the Fourteenth Amendment of a judgment against a foreign corporation not doing business within the State, are stated in the opinion.

The facts, which involve the jurisdiction of this court to review judgments of the Court of Appeals of the District of Columbia under § 250 of the Judicial Code, are stated in the opinion.

The facts, which involve questions relating to the amount which the United States can be charged for transportation over a land grant railway, are stated in the opinion.

<p>A corporation created by an act of Congress is inherently entitled to invoke the jurisdiction of this court to review a judgment of the Circuit Court of Appeals, even thougn such judgment would be final as against another defendant not so incorporated.</p> <p>Nothing in the record indicates that the trial court erred in'not taking the case from the jury.</p> <p>Where the defendant after removing the case into the Federal court, obtains a continuance in order to prepare its defense on the merits, and does plead to the merits, such action amounts to a waiver of objections to the jurisdiction of the state'court in which the action was originally commenced.</p> <p>The exclusion of jurors and the granting or refusal of postponements are matters within the discretion of the trial court and this Gourt will not .interfere, unless it appears that the, limits of. sound discretion were transcended. , ■</p> <p>Objections to the charge of the trial court to the jury in this case held unfounded.</p> <p>Whether the trial court erred in refusing a remittitur because of the excessive amount of the verdict is not open in this court. Southern Ry: v. Bennett, 233 U. S.. 80.</p>

<p>ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.</p> <p>The facts, which involve the validity of a judgment for damages for personal injuries, are stated in the opinion.</p> <p>When a passenger train blocks a public way and the vestibule openings between the coaches have, for many years,. been left open as a passageway for the public, starting the train without closing the doors thereof or giving signal raises the issue of negligence. Chicago & Ohio Ry. v. Steele, 29 C. C. A. 81; 2 Thompson on Negligence, §§ 1568-1571, 1726.</p> <p>Where the public has long used the openings between coaches as a passway, the railway company, in starting the train, owes the same duty to give signals as it would before starting the train across a public way. Adams v. Southern Ry., 28 C. C. A. 495; S. C., 84 Fed. Rep. 596; Balt. & Pot. Ry. v. Cumberland, 176 U. S. 232; Del. Improvement Co. v. Steed, 75 U. S. 161; Ellsworth v. Metheny, 44 C. C. A. 484; Grand Trunk Ry. v. Ives, 144 U. S. 408; Tex. & Pac. Ry. v. Cody, 166 U. S. 606.</p> <p>Where the openings between coaches have been used with the acquiescence of the railway company for a number of years as a passway, starting the train with a jerk without giving signals raises the issue of negligence, though the engineer did not know that any person was passing through the opening, for he would be charged with notice of the probability of persons being in a position to be injured. 2 Thompson on Negligence, §§ 1472-1552-1562-1568-1571.</p> <p>The mere fact that the train started with a jerk when it backed out of -a station, would not be negligence unless the jerk was unusual. Boston Elevated Ry. v. Smith, 168 Fed. Rep. 629; Hogan v. Railroad, 59 Wisconsin, 150; Tex. & Pac. Ry. v. Breadow, 90 Texas, 27; Tex. & Pac. Ry. v. Staggs, 90 Texas, 485.</p> <p>After a passenger train has remained at a station the usual length of time, the .conductor does not have to examine to see if persons not passengers, and not intending to become such, are climbing on or off the train. Bennett v. Railroad, 102 U. S. 584; Griswold v. Chicago Railroad, 23 Am. & Eng. R. R. Cas. 464; Gardner v. Railroad, 56 Connecticut, 143; Gillis v. Railroad, 59 Pa. St. 129; Keller v. Railroad, 27 Minnesota, 178; Lucas v. New Bedford R. R., 6 Gray, 64; Lucas v. New Bedford R. R., 66 Am. Dec. 406; Lawton v. Little Rock R. R., 18 S. W. Rep. 459; McKone v. Railroad, 51 Michigan, 601; Mitchell v. Railroad, 51 Michigan, 238; Railway v. Letcher, 69 Alabama, 106; Railway v. Miller, 27 S. W. Rep. 905; Sherman & Redf. on Neg. 36; Sutton v. Railway, 66 N. Y. 248; Tex. & Pac. Ry. v. McGilvray, 29 S. W. Rep. 68.</p> <p>Where a train headed east opened the vestibules on the north side to allow passengers to leave the car on that side and go to another train waiting on that side, then it is not negligence to allow the vestibules to remain open until the incoming train starts to back out. Davis v. Railroad, 58 Wisconsin, 657; Davis v. Railroad, 15 Am. & Eng. R. R. Cas. 424; Gardner v. Railroad, 51 Connecticut, 143; Mitchell v. Railroad, 51 Michigan, 238.</p>

Held: interstate passenger trains and clearly excludes accommodation freight trains; and, so viewing it,- the Supreme Court pronounced it a proper exercise of the power of the State. In reviewing the decision we may start with certain principles as established: (1) It is competent for-a State to require adequate local facilities, even to the stoppage of interstate trains or the re-arrangement of their schedules.

. The facts, which involve the rights of a contractor for compensation for work done under a contract with the United States for the construction of locks and dams bn the Warrior River, are stated in the opinion.

Held: and those conferred in the exercise and in aid of the purpose of the dominant trust under which the submerged soil is held for the benefit of the public.” The case does not support the distinction. A marine railway was constructed under state authority and had been in existence for eighteen years but projected beyond a harbor line subsequently established by Congress.

<p>An exemption from taxation of a person constructing and operating a railroad in respect to his or their interest therein under said contract and in respect to the rolling stock and other equipment of the railroad does not extend to a tax or the privilege to operate as a corporation in case the parties decide to operate the road in a corporate form.</p> <p>The Court of Appeals of New York having held that the right to be a corporation was not an interest under the New York subway contract involved in this case, and that the exemption from taxation contained in that contract did not extend to such privilege, this court accepts that construction although it is not conclusive upon it.</p>

The facts, which involve the respective interests of various parties in a claim against the United States which had been adjudicated after a long litigation in the courts in which appellants had at divers times represented the claimants, are stated in the opinion.

The facts, which involve the jurisdiction of this court to review judgments of the Circuit Court of Appeals and the finality of such judgments under § 128, Judicial Code, are stated in the opinion.

The facts, which involve the construction and validity of the laws of.the State of Kentucky, relating to liens on vessels for repairs and the jurisdiction of the state court to enforce such liens, are stated in the opinion.

Held: on evidence presumably justifying such a finding but not produced in the habeas corpus proceeding, that the allegations as to mob violence and influence were not sustained and that the objection as to absence on rendering the verdict had' been waived by failure to raise it in due season when fully informed as to the facts.

IDAHO. The facts, which involve the construction of Rev. Stat., § 2322, and the right of the locator of a mining claim to follow the vein downward, are stated in the opinion.

' The facts, which involve the construction of Rev. Stat., § 2296, and the jurisdiction of the state probate court over the homestead entry of a deceased homesteader dying after full payment and before patent has issued, are stated in the opinion. The probate court had no jurisdiction over the land. The land involved in this case was not the homesteader’s property; the homesteader had no title in fact and none passed by the so-called deed of the administrator.

The facts, which involve the validity of a judgment of the state court for damages for personal injuries, are stated in the opinion.

The facts, which involve the construction and effect of the Supplemental Creek Agreement of June 30, 1902, and the ascertainment of heirs of an infant of the Creek Nation enrolled after death, are stated in the opinion.

<p>McDougal v. McKay, ante, p. 372, followed to the effect that an allotment made to a full blooded Creek Indian is, for purposes of descent and distribution, to be considered, not as a new acquisition, but as an ancestral estate and passes as such under chapter 49 of Mansfield’s Digest of the Laws of Arkansas.</p> <p>The same ruling also applies to an allotment of a full blooded Chickasaw Indian.</p>

APPEAL PROM THE SUPREME COURT OP THE PHILIPPINE ISLANDS.' The facts, which involve the jurisdiction of this court of appeals from the Supreme Court of the Philippine Islands, are stated in the opinion.

The facts, which involve the constitutionality under the due process and equal protection provisions of the Fourteenth Amendment of the coal mine wash-house law of Indiana, are stated in the opinion.

<p>This court will not express an opinion on the question of whether or not the trial court should have found that the injured employé was engaged in interstate commerce, where the error, if any, did the appellant no harm.</p> <p>Where the claim of defendant railroad company against whom the verdict was rendered is that the plaintiff was engaged in interstate commerce and the case should have been tried under the Federal instead of the state statute, and the finding of the jury was warranted by the evidence, this court will not reverse if it does not appear that the defendant’s position was worse because the state, instead of the Federal, law governed the case.</p> <p>Under the Wisconsin law assumption of risk is merely a case of contributory negligence, and a finding of the jury that the plaintiff was not guilty of contributory negligence excludes the possibility that he assumed the risk.</p>

<p>error to the united states circuit court of appeals FOR THE THIRD CIRCUIT.</p> <p>The facts, which involve the construction and application of the Safety Appliance Acts, are stated in the opinion.</p>

<p>CERTIORARI TO THE CIRCUIT COURT OP APPEALS POR THE EIGHTH CIRCUIT.</p> <p>The facts, which involve the construction and application of the Safety Appliance Acts, are stated in the opinion.</p>

The facts, which involve the constitutionality of § 2677, General Statutes of Florida of 1906, as amended by the act of 1909, c. 5892, relating to the liability of stockholders for judgment debts of the' corporation to the extent of their subscriptions remaining unpaid, are stated in the opinion.

<p>Writ of error to review the judgment of a state court, in an action for personal injuries based on the Safety Appliance Law of the State substantially identical with the Federal law, and affirmed by the intermediate appellate and the highest court of the State without opinion, dismissed for want of jurisdiction under § 237, Judicial Code.</p> <p>Even if the highest court of the State, after affirmance, certified as part of the record the fact that it had been necessary to consider the Federal Safety Appliance Act and to determine whether the Ohio Safety Appliance Act, as construed by the trial court, is not repuguant to the Fourteenth Amendment, the Federal questions suggested as the basis for the writ of error in this ease are so frivolous as not to afford jurisdiction under' § 237, Judicial Code.</p>

The facts, which involve the jurisdiction of this court to review judgments of the state court under § 237, Judicial Code, are stated in the opinion.

The facts, which involve the construction and application of § 12 of the act to regulate commerce and the power of the court to compel witnesses to answer questions propounded, and to produce documents demanded, by the Interstate Commerce Commission, are stated in the opinion. Armour Car Lines is not a common carrier, nor is it engaged in transportation, within the meaning of the act to regulate commerce.

The facts, which involve the construction and application, of certain provisions of the Bankruptcy Act in regard to appeals of mutual claims of the bankrupt and the creditors, are stated in the opinion.

The facts, which involve the application of the full faith and credit clause of the Federal .Constitution and the jurisdiction of this court under § 237, Judicial Code, are stated in the opinion.

The facts, which involve questions of nuisance arising from fumes from smelting ore and the power of the court to enjoin the same at the instance of a State, are stated-in the opinion.

The facts, which involve the jurisdiction of the District Court in a case involving infringement of patent, are stated in the opinion.

The facts, which involve the validity of. patents to land alleged by the United States to have issued as the result of fraud in the entries, are stated in the opinion. There is nothing in the Timber and Stone Act to prevent the entrymen from borrowing the money to pay the expenses of making the entries and to pay the government price for the land. United States v. Detroit Timber Co., 124 Fed. Rep., 393; Lewis v. Shaw, 70 Fed. Rep. 289, 294; Hoover v. Sailing, 110 Fed.

The facts, which involve the right of enforcement in one State of a liability created under the statute of another State and the extent to which a judgment recovered by an administratrix may affect a claim by an heir of the intestate, are. stated in the opinion.

Held: that, where the causal negligence is attributable partly to the carrier and partly to the injured employé, he shall not recover full damages, but only a diminished sum bearing the same relation to the full damages that the negligence attributable to the carrier bears to the negligence attributable to both; the purpose being to exclude from the recovery a proportional part of the damages corresponding to the…

The facts, which involve questions raised under the 'Eighth and Fourteenth Amendments, and under an extradition treaty, as to the validity of the conviction and sentence of' appellant in a criminal court of California, aré stated in the opinion.

<p>ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR PORTO RICO.</p> <p>The facts, which involve the construction and application of the laws of Porto Rico relating to the accountability for fruits and profits of real estate of one evicted therefrom, are stated in the opinion.</p>

The facts, which involve the effect and application of the full faith and credit clause of the Federal Constitution and other matters, are stated in the opinion.

<p>APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.</p> <p>The facts, which involve the construction of certain provisions of the laws of the United States relating to the' public lands, are stated in the opinion.</p> <p>No vested right is acquired by the mere offer to file a forest lieu selection which is rejected. Cosmos Co. v. Gray Eagle Co., 190 U. S. 301; Pacific Land Co. v. Elwood Co., 190 U. S. 314; Roughton v. Knight, 219 U. S. 536; United States v. McClure, 174 Fed. Rep. 510; Clearwater Timber Co. v. Shoshone Co., 155 Fed. Rep. 612; Osborn v. Forsyth, 216 U. S. 570; Pacific Stock Co. v. Isaacs, 96 Pac. Rep. (Ore.) 464; Robinson v. Lundrigan, 178 Fed. Rep. 230; S. C., 227 U. S. 173; Miller v. Thomas, 36 L. D. 492; Ehlainen v. Santa Fe Pac. R. R., 42 L. D. 578; Re Walker, 36 L. D. 495; Sherar v. Frazer, 40 L. D. 549; La Fayette Lewis, 33 L. D. 43; William E. Moses, 33 L. D. 333; Smith v. State, 40 L. D. 554; Instructions, 24 L. D. 589, 592; Instructions, 30 L. D. 28; Kern Oil Co. v. Clarke, 30 L. D. 550, 569; S. C., 31 L. D. 288; Gray Eagle Co. v. Clarke, 30 L. D. 570; Re Cobb, 31 L. D. 220; Santa Fe Pac. R. R. v. State, 34 L. D. 12; Re Walker, 36 L. D. 495; Sherar v. Veazie, 40 L. D. 549.</p> <p>The administration of the Forest Reserve Lieu Land Act of June 4, 1897, as amended by subsequent acts of Congress, is vested in the Land Department of the United States. Cases supra and Wisconsin Cent. R. R. Co. v. Price Co., 133 U. S. 460; Regulations of Int. Dep’t under act June 4, 1897, 24 L. D. 589; Nasqually v. Gibbon, 158 U. S. 155; Knight v. Land Association, 142 U. S. 161, 177; In re Clarke, 32 L. D. 233, 235; Miller v. Thompson, 36 L. D. 492.</p> <p>. The decisions of the Land Department upon questions of fact are conclusive. De Cambra v. Rogers, 189 U. S. 119; Gertgens v. O’Connor, 191 U. S. 237; Johnson v. Drew, 171 U. S. 93; Love v. Flahive, 205 U. S. 105; Johnson v. Towsley, 13 Wall. 72; Marquez v. Frisbie, 101 U. S. 473; Quimby v. Conlan, 104 U. S. 420; Burfenning v. Chicago, 163 U. S. 321; Whitcomb v. White, 214 U. S. 15.</p> <p>Likewise its decisions upon mixed questions of law and fact. Quimby v. Conlan, 104 U. S. 420; Whitcomb v. White, 214 U. S. 15; Ross v. Day, 232 U. S. 114; Moore v. Robbins, 96 U. S. 530; Gonzales v. French, 164 U. S. 338.,</p> <p>The acts of the Executive Departments of the Government, when acquiesced in, and especially their interpretation of statutes which they are nailed upon almost daily to construe, if acquiesced in for a long time, are almost conclusive upon the courts. Roughton v. Knight, 219 U. S. 536; Osborn v. Forsyth, 216 U. S. 570; Orchard v. Alexander, 157 U. S. 373; Knight v. Land Association, 142 U. S. 161; Parsons v. Venzke, 164 U. S. 89; Williams v. United States, 138 U. S. 514, 524; Kern Oil Co. v. Clarke, 31 L. D. 288, 300; Pacific Stock Co. v. Isaacs, 96 Pac. Rep. (Ore.) 464.</p> <p>The Secretary of the Interior is vested with large discretionary powers in the administration of the public lahd system. Williams v. United States, 138 U. S. 514, 524; Knight v. Land Ass’n, 142 U. S. 161, 177; Fowler v. Dennis, 41 L. D. 173.</p> <p>The act of June 4, 1897, contemplates a common-law exchange of equal estates, which requires the assent of both parties thereto before the exchange is consummated. See Co. Litt., 50a et seq.; Butler & Hargrave’s Notes;. Shep. Touch. 294; 3 Words & Phrases, 2547; United States v. McClure, 174 Fed. Rep. 510; Clearwater Timber Co. v. Shoshone Co., 155 Fed. Rep. 612; Lessieur v. Price, 12 How. 59, 74; Roughton v. Knight, 156 California, 123; S. C., 219 U. S. 536; Re Lewis, 33 L. D. 43; Re Moses, 33 L. D. 333; Re Hyde, 28 L. D. 286, 290; Opinions Asst. Aity. Gen. Van Devanter, 28 L. D. 312, 472; 30 L. D. 105; Kern Oil Co. v. Clarke, 30 L. D. 550; S. C., 31 L. D. 288, 294; Gray Eagle Co. v. Clarke, 30 L. D. 570; Instructions, 31 L. D. 225; Re C. W. Clarke, 32 L. D. 233, 235; Miller v. Thompson, 36 L. D. 492; Smith v. Idaho, 40 L. D. 554.</p> <p>In case of rejection of lieu land applications the base lands are not lost. Cases supra and Re Austin, 33 L. D. 589; Re Krebs, 37 L. D. 143.</p> <p>The selector of land under the exchange provisions of the act of June 4, 1897, is the owner of the base land and must pay taxes thereon until the selection is approved by the Commissioner of the General Land Office and the exchange consummated. Weyerhauser v. Hoyt, 219 U. S. 380, distinguished. Under the act of June 4, 1897, if the selection fails, the selector still retains the land he attempted to relinquish to the United States, and loses nothing. Cases supra and Sjorli v. Dreschel, 199 U. S. 564; Grant v. Railway Co., 54 Iowa, 673; Musser v. McRae, 38 Minnesota, 409; Page v. Price Co., 25 Washington, 6.</p> <p>If dissatisfied, plaintiff should have brought mandamus against the Secretary of the Interior when the selections were finally rejected. Osborn v. Forsyth, 216 U. S. 570.</p> <p>The decisions of the Interior Department construing the laws specially intrusted to it for execution, and the rules and regulations promulgated by it in the discharge of its duties, should not be disturbed or reversed except for the most cogent reasons. Rev. Stat., §§ 441, 453, 2478; Knight v. Land Assn., 142 U. S. 161, 167; Orchard v. Alexander, 157 U. S. 372, 375; Bishop of Nasqually v. Gibbon, 158 U. S. 155, 166; Parsons v. Venzke, 164 U. S. 89, 91; Gray Eagle Co. v. Clarke, 31 L. D. 303, 306; McMichael v. Murphy, 197 U. S. 304; Williamson v. United States, 207 U. S. 425, 462; Logan v. Davis, 233 U. S. 613; Small v. Rakestraw, 196 U. S. 401.</p> <p>Lands suspended from entry, or reserved by competent authority, and lands occupied or covered by an entry, selection or filing, and mineral lands, are not subject to selection under the exchange provisions of the act of June 4, 1897. Leaming v. McKenna, 31 L. D. 318; Kern Oil Co. v. Clarke, 31 L. D. 288; Wilcox v. Jackson, 13 Pet. 498, 513; Walcott v. Des Moines Co., 5 Wall. 681, 688; Grisar v. McDowell, 6 Wall. 363, 381; Re Cal. Land Co., 33 L. D. 595; Sanie Fe Pac. R. R. v. California, 34 L. D. 12; Re Santa Fe Pac. R. R., 34 L. D. 119.</p> <p>The decision of the Secretary of. the Interior in the cases at bar followed a long line of decisions rendered by his predecessors. Kern Oil Co. v. Clarke, 30 L. D. 550; Instructions, 24 L. D. 589, 592; Gray Eagle Oil Co. v. Clarke, 30 L. D. 570; Re Pavey, 31 L. D. 186; Re Cobb, 31 L. D. 220; Porter v. Landrum, 31 L. D. 352.</p> <p>The regulations promulgated by the Secretary of the Interior in pursuance of statute, have all the force and effect of law. Cosmos Co. v. Gray Eagle Co., 190 U. S. 301; Knight v. Land Assn., 142 U. S. 161, 177; and see 2 L. D. 709; 5 L. D. 169; 6 L. D. 111; 9 L. D. 86, 189, 284, 353.</p> <p>The law deals tenderly with the settler upon public lands. Ard v. Brandon, 156 U. S. 537, 543; Shepley v. Cowan, 91 U. S. 330, 338.</p> <p>The courts of the United States take judicial notice of the regulations of the Land Department. Caha v. United States, 152 U. S. 211; Leonard v. Lennox, 181 Fed. Rep. 764; Jones v. United States, 137 U. S. 202, 216; Jenkins v. Collord, 145 U. S. 546, 560.</p> <p>The final decision of the Interior Department of February 17, 1910, shows that the selections were never accepted by the Land Department, notwithstanding allegations in other parts of the amended bills of complaint to the contrary.'</p> <p>That plaintiff was awarded a decision by the Interior Department, prior to the final decision of February 17, 1910, in favor of defendants, gives him no standing, since the final decision alone determines the rights of the 'parties. Potter v. Hall, 189 U. S. 292; Greenameyer v. Coate, 212 U. S. 434.</p>

<p>Decided on the authority of Daniels v. Wagner, ante, p. 547.</p>

<p>APPEALS FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.</p> <p>The facts are stated in the opinion.</p>

<p>Decided on authority of Daniels v. Wagner, ante, p. 547.</p> <p>One who has complied with all necessary steps to obtain lieu lands under, the Forest Reserve Act of .June 4, 1897, is not confined to the ' remedy of mandamus against the Secretary of the Interior: He may proceed by action against the party to whom the patent was issued. Osborn v. Froyseth, 216 U. S. 571, distinguished.</p>

<p>APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.</p> <p>The facts are stated in the opinion.</p>

The facts, which involve the jurisdiction of this court of appeals from judgments of the Circuit Courts of Appeal, are stated in the opinion.

<p>This court cannot entertain jurisdiction of a direct writ of error to review a judgment of the District Court under § 238, Judicial Code, on frivolous grounds.</p> <p>The contention that rights were denied under a treaty that did not go into effect until two years after title had vested in defendants in error or in their grantors under the state law, is too frivolous to sustain .jurisdiction of this court under § 238, Judicial Code.</p> <p>Even though the widow had some use of the intestate’s property after his death which continued until after the treaty became Operative, if the title was not suspended, the treaty could have had no effect thereon.</p> <p>The contention that a state statute forbidding the ownership of real estate by non-resident aliens is repugnant to the Fourteenth Amendment simply because it does forbid such ownership is also frivolous.</p>

Conrad Braker, Jr., of New York who there died July 21, 1891, by his will created several trusts in favor of his son, Conrad Morris Braker. The beneficiary of these trusts, the son, assigned a portion of'his interest in them to one Rabe and nearly the whole of the remainder to the New York Finance Company.

The facts, which involve the constitutionality under the due process and equal protection provisions of the Fourteenth Amendment of a statute of the State of Mississippi prohibiting Greek Letter fraternities and other societies in the educational institutions of the State, are stated in the opinion, The second section of said act and said order of the Board of Trustees is unreasonable and ultra vires. 22 Am. & Eng.

The facts, which involve the constitutionality under the commerce clause of the Federal Constitution of certain provisions of the South Carolina Civil Code of 1912 imposing penalties on carriers for failure to pay claims within a specified period, are stated in the opinion.

<p>CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.</p> <p>The facts, which involve the construction of a policy of insurance and the right to vary the terms thereof by parol Evidence,' are stated in the opinion.</p> <p>The policy in force when the fire occurred being a renewal of a previous policy, is but a continuation of the original contract of insurance. Mallette v. Assur. Co., 91 Maryland, 471; Hay v. Star Fire Ins. Co., 77 N. Y. 235; Martin v. Jersey City Ins. Co., 44 N. J. L. 273; 1 Cooley’s Briefs on Ins., p. 849; Ky. Vermillion Co. v. Norwich Co., 146 Fed. Rep. 695, distinguished.</p> <p>The renewal premium was accepted by the insurer with full and complete knowledge of every fact now set up as invalidating the contract.</p> <p>No waiver of a condition or provision of the policy could result from any fact known to the insurer’s agent issuing the policy at the time the policy was issued— the agent being without express authority from the insurer to make the waiver and the written contract providing in substance against this result. Northern Assur. Co. v. Bldg. & Loan Asso., 183 U. S. 308; Penman v. St. P. F. & M. Ins. Co., 216 U. S. 311; Ætna Ins. Co. v. Moore, 231 U. S. 543; Gish v. Ins. Co. of Nor. Am. (1905), 16 Oklahoma, 59; Ind. Mut. Indemnity Co. v. Thompson, 10 L. R. A. (N. S.) 1064; Sharman v. Con. Ins. Co., 167 California, 117.</p> <p>The written contract whereby the assured agreed that a continuous clear space of 100 feet shall at all times be maintained between the property insured and any woodworking or manufacturing establishment cannot be varied by parol evidence that the assured was not to maintain such continuous clear space. See authorities supra and Franklin Fire Ins. Co. v. Martin, 40 N. J. L. 568; Kupferschmidt v. Agri. Ins. Co., 80 N. J. L. 441; Ellison v. Gray, 55 N. J. Eq. 581; Keller v. L. & G. Ins. Co., 27 Tex. Civ. App. 102; England v. Ins. Co., 81 Wisconsin, 583; Shingle Co. v. Ins. Co., 91 Michigan, 443; Ky. Vermillion &c. Co. v. Norwich &c. Co., 146 Fed. Rep. 695, but the effect of assured’s failure to make this warranty good was to give the insurer the right to abrogate.</p> <p>The insurer elected not to avoid the policy, but treated it as in full force and received new benefits therefrom, and became, as a matter of law, charged with its burdens. Ins. Co. v. Wilkinson, 13 Wall. 232; Globe Mut. Ins. Co. v. Wolff, 95 U. S. 326; Insurance Co. v. Norton, 96 U. S. 234; Phœnix Ins. Co. v. Raddin, 120 U. S. 183; Iowa Ins. Co. v. Lewis, 187 U. S. 335; State Ins. Co. v. Murray, 159 Fed. Rep. 408; Murray v. State Ins. Co., 151 Fed. Rep. 539; Ætna Ins. Co. v. Frierson, 114 Fed. Rep. 56.</p> <p>The waiver relied on was a waiver resulting from the mere knowledge of the agent. Mill. Mut. Co. v. Mec. &c. Asso., 43 N. J. L. 652; Martin v. Jersey City Ins. Co., 44 N. J. L. 273; Redstrake v. Cum. Ins. Co., 44 N. J. L. 294; Agri. Ins. Co. v. Potts, 55 N. J. L. 158; Ætna Ins. Co. v. Holcomb, 89 Texas, 404; Wagner v. Westchester Co., 92 Texas, 549; Conn. Ins. Co. v. Cummings, 98 Texas, 115; Security &c. Co. v. Calvert, 101 Texas, 128; Eq. L. Assur. So. v. Ellis, 105 Texas, 526; Knoebel v. North American Co., 135 Wisconsin, 424; Ramsey v. Travelers Ass’n, 147 Wisconsin, 405; O’Neill v. Northern Ins. Co., 155 Michigan, 564; Laxton v. Patron Co., 168 Michigan, 448; Hause v. Standard Ins. Co., 172 Michigan, 59; Dahrooge v. Fire Assur. Co., 175 Michigan, 248.</p> <p>The proposition advanced is tliat parol evidence, while not admissible to vary the terms of a written contract, is permissible and is usually the only evidence to be adduced to establish facts which show that the contract as originally written was subsequently altered, expressly or by necessary implication. L. & L. Ins. Co. v. Fischer, 92 Fed. Rep. 500; Rochester German Ins. Co. v. Schmidt, 151 Fed. Rep. 681; State Life Ins. Co. v. Murray, 159 Fed. Rep. 408; Farmers’ Feed Co. v. Ins. Co., 166 Fed. Rep. 111; Met. Life Ins. Co. v. Williamson, 147 Fed. Rep. 116; Bennett v. Ins. Co., 70 Iowa, 600; Hagan v. Ins. Co., 81 Iowa, 321; Hamilton v. Insurance Co., 94 Missouri, 353; Insurance Co. v. Covey, 41 Nebraska, 724; Insurance Co. v. Hammang, 44 Nebraska, 566; Allen v. Insurance Co., 123 N. Y. 6; Morrison v. Insurance Co., 69 Texas, 353; Kahn v. Insurance Co. (Wyo.), 34 Pac. Rep. 1059; Ala. Ins. Co. v. Long Clothing Co., 123 Alabama, 667; Phœnix Ins. Co. v. Johnston, 143 Illinois, 106; Leisen v. St. P. F. & M. Ins. Co. (N. D.), 127 N. W. Rep. 837; Home Ins. Co. v. Marple, 1 Ind. App. 411; Glen Falls Ins. Co. v. Michael, 167 Indiana, 659; Gray v. Natl. Ben. Asso., 111 Indiana, 531; Traders’ Ins. Co. v. Letcher, 143 Alabama, 400; Phœnix Ins. Co. v. Hart, 149 Illinois, 513; N. Y. Life Ins. Co. v. Evans (Ky.), 124 S. W. Rep. 376; Glasscock v. Des Moines Ins. Co., 125 Iowa, 170; Polk v. Western. Assur. Co., 114 Mo. App. 514; Horton v. Home Ins. Co., 122 N. Car. 498; Mut. Life Ins. Co. v. French, 30 Oh. St. 240; German-American Ins. Co. v. Harper, 75 Arkansas, 98; Clay v. Phœnix Ins. Co., 97 Georgia, 44; Union Nat. Bank v. Manhattan Ins. Co., 52 La. Ann. 36; Schmurr v. State Ins. Co., 30 Oregon, 29; Arnold v. Am. Ins. Co., 148 California, 660; Insurance Co. v. Pankey, 91 Virginia, 259.</p>

<p>A State may in its statute of descent exclude children adopted by proceedings in other States, as Alabama has done, without violating any Federal right.</p> <p>The construction of a contract of adoption as complying with the law of the State where made, but as not giving any rights in the State where the property is situated because the law of descent of the latter State excludes children adopted in any other State, does not deny the adoption full faith and credit.</p> <p>An adoption, although good in the State where made, cannot acquire a greater scope in other States than their laws give to it by reason of the adopters’ expectation that it will be effective in other States'.</p>

The facts, which involve the right of a trustee in bankruptcy to recover funds formerly belonging to the bankrupt, are stated in the opinion.

G. & C. Merriam Co. v. Syndicate Publishing Co., 237 U.S. 618 (1915), was a United States Supreme Court case in which the Court held that, under the Trademark Act of 1881, after a copyrighted work expires, the word used to designate that work falls into the public domain and cannot be trademarked.

Held: that, when in the same course of conduct, and upon the same occasion, certain rude and boisterous language was used, and an officer insulted, two offenses were committed, separate in their character, and this, notwithstanding the transaction' was one and the same.

The facts, which involve the construction of §§ 190 and 192, Penal Code, and questions of separate offenses and punishment for breaking into a post office and committing larceny of property of the Post Office Department under the double jeopardy provision of the Fifth Amendment, are stated in the opinion. Sections 190 and 192 define and punish two offenses. The same evidence test should be applied. For the declared law, see 1 Bishop, New Crim. Law, § 1062 and p. 630.

The facts, which involve the. construction of the Carey Act of August 18, 1894, and the right of the State to tax property taken up thereunder by an entryman after he had become entitled to the patent, but before the patent was issued, are stated in the opinion.

The facts, which involve the construction and application of the Employers’ Liability Act of 1908 and the Amendment of 1910 and the right of the administrator of an employé killed by negligence of the employer to recover not only for the death of, but also for the pain and suffering endured by, decedent, are stated in the opinion.

<p>ERROR TO THE DISTRICT COURT IN AND POR TEE COUNTY OF RAMSEY, STATE OF MINNESOTA.</p> <p>The facts, which involve the question of whether the state courts of Minnesota gave full faith and credit to a judgment of the State of Connecticut establishing the rights of an insurance company and holders of mortuary assessable certificates, are stated in the opinion.</p>

Held: applied to the Local Land Officer at Vancouver, Washington, to enter 1120 acres of unappropriated public lands under the Act of June 4, 1897, in lieu of lands in California owned by F. A. Hyde & Co., which had been included in the Pine Mountain and Zaca Lake Forest Reserve.

<p>Decree entered pursuant to opinion delivered May 1915, ante, p. 475, and appointing inspector to observe operations of plant of defendant, Duektown Sulphur, Copper & Iron Company, Limited, and requiring said defendant to prevent escape of fumes carrying more than a specified amount of sulphur.</p>