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POWERS OF CONGRESS.
See Public Lands, 3.
1. Acceptance by this court of state court's construction of state statute.
Where the highest court of a State hus held that the acts of a person con-
victed of violating a state statute defining and prohibiting trusts were
clearly within both the statute and the police power of the State, and
that the statute can be sustained as a prohibition of those acts irre-
spective of the question whether its language was broad enough to
include acts beyond legislative control, this court will accept such
construction although the stute court may have ascertained the mean-
ing, scope and validity of the statute by pursuing a rule of construction
different from that recognized by this court. Smiley v. Kansas, 447.
2. Following state court's construction of statute.
Where the highest court of the State holds that a statute fixing the liability
of common carriers applies to shipments made to points without the
State, this court must accept that construction of statute. Central
of Georgia Ry. Co. v. Murphey, 194.
3. As to decision of constitutional questions.
It is not the habit of this court to decide questions of a constitutional nature
unless absolutely necessary to a decision of the case. Burton v. United
4. Facts taken as found by jury.
This court will not inquire whether the finding of the jury in the state
court is against the evidence; it will take the facts as found and con-
sider only whether the state statute involved is violative of the Fed-
eral Constitution. Smiley v. kansas, +47.
See CONSTITUTIONAL LAW, 7; PARTIES;
JURISDICTION, A 1, 3, 5;
REMOVAL OF Causes, 1;
STATUTES, A 1.
See BANKRUPTCY, 4, 5.
See BANKRUPTCY, 7; PUBLIC LANDS,.1;
EXTRADITION, 1; TAXATION, 4;
JURISDICTION, B 2; WILLS, 3.
What service necessary-Service on officer of corporation while passing through
A court cannot acquire jurisdiction over the person of a defendant except
by actual service of notice upon him within the jurisdiction or upon
some one authorized to accept service in his behalf, or by his waiver,
by general appearance or otherwise, of the want of due service. Sery-
ice of a summons in an action in a territorial court of New Mexico on
the president of a railway corporation, while passing through New
Mexico as a passenger on a railroad train, held insufficient as a per-
sonal service of a corporation organized under an act of Congress,
having offices in New York, Kansas and Illinois, and none in New
Mexico; the mere ownership of lands, the bringing of suits to protect
such lands, in New Mexico does not locate the corporation in New
Mexico for the purposes of a personal action against it based on such
& service of the summons. Nor was such service authorized by the
Compiled Laws of New Mexico, 1897. Although the state of the
statuto law in respect of suits like this may operate injuriously at times
the situation cannot be changed by the courtsthat can only be done
by legislation. Caledonian Coal Co. v. Baker, 432.
See MUNICIPAL CORPORATIONS, 2.
1. Appropriation; effect of subsequent grant on.
Unless an intent to the contrary is clearly manifest by its terms, a statute
providing generally for the disposal of public lands is inapplicable to
lands taken possession of and occupied by the Government for a special
purpose. A prior appropriation is always presumed to except land
from the scope of a subsequent grant although no reference may be
made in the latter to the former. Scott v. Careu: 100.
2. Appropriation-Establishment of military post.
The establishment of a military post under proper orders on public lands
amounts to an appropriation of the land for military purposes and
withdraws the property occupied from the effect of general laws sub-
sequently passed for the disposal of public lands, and no right of an
individual settler attaches to or hangs over the land to interfere with
the action of the Government in regard thereto. *Ib.
3. Delegation of powers by Congress to local legislatures.
While the disposal of the public lands is made through the exercise of leg-
islative power entrusted to Congress by the Constitution, yet Congress
prescribing the main and substantial conditions thereof may right-
fully entrust to local legislatures the determination of those minor
matters as to such disposal which amount to mere regulations. Regu-
lations made by the local legislatures in regard to the location of
mining claims which are not in conflict with the Constitution and
laws of the United States are not invalid as an exercise of a power
which cannot be delegated by Congress and such regulations must be
complied with in order to perfect title and ownership under the mining
laws of the United States. Even if doubts exist were the matter
wholly res integra, and although consequences may not determine a
decision this court will pause before declaring invalid legislation long
since enacted, and the validity whereof has been upheld by state courts
and recognized by this court, and on the faith of which property rights
have been built up and countless titles rest which would be unsettled
by an adverse decision. The regulations contained in $ 3612 of the
Montana Code are not invalid as being too stringent and therefore in
conflict with the liberal purpose manifested by Congress in its legisla-
tion respecting mining claims. Butte City Water Co. v. Baker, 119.
4. Entries for town sites in Oklahoma.
There was no permit for entry of lands in Oklahoma for town sites under
the act of 1889 or until the town site act was passed May 14, 1890,
and an agreement among a portion of the people who on April 22, 1889,
chose lots upon a projected town site did not and could not vest an
absolute title in persons selecting lots or make a plat or map of town
final or conclusive; but the selectors took their lots subject to changes
and conditions that might obtain-in this case as to location of streets
—when the township patent was issued to, and a map finally approved
by, the township trustees under the act of May 14, 1890. Oklahoma
City v. McMaster, 529.
5. Homestead claim; effect of voting in another precinct_Controlling effect
of findings of fact by Secretary of Interior.
A homestead claimant in a contest in the Land Department admitted he
voted in a precinct in Montana other than that in which the land was
situated, and that he returned there only often enough to keep up a
good showing. The Secretary of the Interior, after reviewing some
of the facts, "without passing upon any other question” laid down
that a residence for voting purposes elsewhere precluded claiming
residence at the same time on the land and decided against the claim-
ant. Held that the Secretary found as a fact, by implication, that the
plaintiff not only voted elsewhere, but resided elsewhere for voting,
that as the case presented no exceptional circumstances, this court was
not warranted in going behind these findings of fact and that the words
"without passing on any other question” could not be taken abso
lutely to limit the ground of decision to the proposition of law but
merely emphasized one aspect of the facts dominant in the Secretary's
mind. Small v. Rakestraw, 403.
6. Northern Pacific Railroad grant, act of July 2, 1864 — Reservation to
Government as to survey, etc.-Right of recovery for timber removed.
While the grant to the Northern Pacific Railroad Company under the act
of July 2, 1864, was in præsenti, and took effect upon the sections
granted when the road was definitely located, by relation as to the
date of the grant, the survey of the land and the identification of the
sections—whether odd or even-is reserved to the Government, and
the equitable title of the railroad company and its assigns becomes a
legal title only upon the identification of the granted sections. Until
the identification of the sections by a government survey the United
States retains a special interest in the timber growing in the township
sufficient to recover the value of timber cut and removed therefrom.
In a suit brought by the United States for that purpose private surveys
made by the railroad company cannot be introduced as evidence to
show that the land from which the timber was cut were odd sections
within the grant and included in a conveyance from the railroad com-
pany to the defendants. United States v. Montana Lumber Mig. Co.,
7. Railroad grants—Purchase from railroad-Construction of act of March 3,
In a remedial statute such as $ 5, act of March 3, 1887, 24 Stat. 557, enabling
bona fide purchasers from railroad companies to perfect their titles by
purchase from the Government in case the land purchased was not
included in the grant the term “citizens,” in the absence of anything
to indicate the contrary, includes state corporations. Whether a
bona fide purchaser from a railroad company acts with reasonable
promptness in availing of the provisions of the act of March 3, 1887,
is a question primarily for the Land Department and one attempting
to enter the land is charged with knowledge of the act, the railroad's
title and, if the deeds have been properly recorded, of the claims of the
railroad's grantee and subsequent assigns; and, under the circum-
stances of this case, this court will not set aside the decision of the
Land Department allowing a bona fide purchaser to avail of the privilege
of the act within ten months after the lands had been stricken from
the company's list as the result of a decision affecting that and other
lands rendered ten years after the purchase from the railroad company,
and during which period all parties had considered the full equitable
title to be in the railroad company and its grantees. Ramsey v. Ta-
coma Land Co., 360.
8. Rights acquired by wrongful settlement.
One who wrongfully settled on public land and was dispossessed by proper
authority so that the land might be used for a military post acquired
by such settlement no priority of right in the matter of purchase or
homestead entry when the post was abandoned and the land opened
to private purchase. Scott v. Carew, 100.
See MINING CLAIMS;
STATUTES, A 4.
• PUBLIC OFFICERS.
See CRIMINAL LAW, 1.
CONSTITUTIONAL LAW, 2;
COMBINATIONS IN RESTRAINT LOCAL LAW (S. C.);
PUBLIC LANDS, 6, 7.
RAILROAD LAND GRANTS.
See PUBLIC LANDS, 6, 7.
See COMBINATIONS IN RESTRAINT OF TRADE.
REMOVAL OF CAUSES.
1. Case removed when—Restraint of further proceedings in state court-Power
of state court where record does not show case removable.
In regard to the removal of cases the following principles have been settled:
If the case be a removable one, that is, if the suit, in its nature, be one
of which the Circuit Court could rightfully take jurisdiction, then upon
the filing of a petition for removal, in due time, with a sufficient bond,
the case is, in law, removed, and the state court in which it is pending
will lose jurisdiction to proceed further, and all subsequent proceed-
ings in that court will be void. After the presentation of a sufficient
petition and bond to the state court in a removable case, it is compe
tent for the Circuit Court, by a proceeding ancillary in its nature
without violating $720, Rev. Stat., forbidding a court of the United
States from enjoining proceedings in a state court—to restrain the
party against whom a cause has been legally removed from taking
further steps in the state court. If upon the face of the record, in-
cluding the petition for removal, a suit does not appear to be a re
movable one, then the state court is not bound to surrender its juris
diction, and may proceed as if no application for removal had been
made. Under the judiciary act of 1887, 1888, a suit cannot be re
moved from a state court unless it could originally have been brought
in the Circuit Court of the United States. Traction Company v. Min-
ing Company, 239.
2. Power of Circuit Court to pass on all questions arising.
When a case has been removed into the Circuit Court of the United States
on the ground of diversity of citizenship, that court is entitled to pass
on all questions arising, including the question of jurisdiction over the
subject matter in the state courts or the sufficiency of mesne process
to authorize the recovery of personal judgment. Courtney v. Pradt, 89.
3. Right of removal for diversity of citizenship; not abrogable by state statute.
The right to remove for diversity of citizenship, as given by a constitu-
tional act of Congress, cannot be taken away or abridged by state
statutes and the case being removed the Circuit Court has power to