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al., Defendants, and M. J. Gray, Mrs. A. F. Sipperley, Mrs. E. J. Walling, H. A. Lee, and the Union Bank of Greeley, Colorado, Interveners." The record did not contain the prayer for and allowance of appeal to the supreme court of Utah, but showed as at the June term, 1893, of that court, the following order: "John O. Smith et al. v. A. F. Sipperley et al., Defts., and M. J. Gray et al., Interveners & Appellants. This cause, coming on regularly to be heard, was argued by Hon. John W. Judd in behalf of appellants, by Charles C. Dey, Esq., in reply, was submitted, and taken under advisement." The judgment of the district court was thereafter affirmed. 34 Pac. 54. The opinion of the supreme court is given, and is entitled “John O. Smith et al., Respondents, v. A. F. Sipperley et al., Appellants." Subsequently this order was entered: "John O. Smith et al. v. A. F. Sipperley, Defts., and M. J. Gray et al., Interveners & Appellants. In this cause counsel for appellants prays the allowance of an appeal from the judgment of this court rendered therein to the supreme court of the United States, and asks that the amount of a bond to be given thereon be now fixed; and it was ordered that such appeal as prayed for be, and is hereby, allowed, and the amount of a bond to be given thereon is fixed in the sum of five thousand dollars, and the amount of a bond for costs is fixed in the sum of five hundred (500) dollars."

The record disclosed a bond dated December 22, 1893, entitled "John O. Smith et al., Respondents, v. A. F. Sipperley et al., Defendants, and M. J. Gray et al., Interveners, Appellants," signed by Mrs. Sipperley, Mrs. Walling, H. A. Lee, and the Union Bank of Greeley, Colo., as principals, running to John O. Smith, George Whiting, Charles P. Connor, and George S. Smith, composing the firm of Smith, Whiting, Connor & Co., in the penal sum of $5,500, and reciting that"whereas the above-named Mistress A. F. Sipperley, Mistress E. J. Walling, H. A. Lee, and the Union Bank of Greeley, Colorado, have prosecuted an appeal to the supreme court of the United States," etc. This bond was approved by the chief justice of Utah, and filed on the day of its date. Citation was issued, dated January 4, 1894, and directed to John O. Smith, George Whiting, Charles P. Connor, George S. Smith, and their attorneys, reciting that Mrs. Sipperley, Mrs. Walling, H. A. Lee, and the Union Bank of Greeley, Colorado, had appealed, etc., service of which citation was admitted January 12, 1894. An assignment of errors in this court was also filed in that court January 12th, entitled "John O. Smith et al. v. A. F. Sipperley et al., and Mrs. A. F. Sipperley, Mrs. E. J. Walling, H. A. Lee, and the Union Bank of Greeley, Colorado, Interveners & Appellants." No application for summons and severance as to M. J. Gray, or any equivalent therefor, appeared in the record, nor any order permitting severance; nor was any application made in this court for

the issue of citation to A. F. Sipperley and H. S. Lee, or leave to perfect the appeal as to them; nor did they or Gray appear herein. Appellees moved to dismiss or affirm.

Chas. H. Armes, for the motion. John W. Judd, opposed.

Mr. Chief Justice FULLER. The motion to dismiss is sustained, upon the authority of Masterson v. Herndon, 10 Wall. 416; Hardee v. Wilson, 146 U. S. 179, 13 Sup. Ct. 39; Inglehart v. Stansbury, 151 U. S. 68, 14 Sup. Ct. 237; and Davis v. Trust Co., 152 U. S. 590, 14 Sup. Ct. 693.

Appeal dismissed.

(155 U. S. 76)

UNITED STATES v. COE.
(October 29, 1894.)
No. 591.

COURT OF PRIVATE LAND CLAIMS-ESTABLISHMENT
-APPEAL TO SUPREME COURT.

1. Even if the provisions of Act March 3, 1891 (26 Stat. 854, c. 539, § 9), that on appeal from the court of private land claims to the supreme court the latter may allow further proof and amendment of the record, are in whole or in part in excess of the legislative power of congress, the right of appeal is not thereby taken away; nor can the question of such invalidity arise on motion to dismiss appeal, but only when action under the provisions is asked.

2. Const. art. 3, 81, providing that the judicial power of the United States shall be vested in a supreme court and such inferior courts as congress may establish, the judges of which shall hold office during good behavior, does not prevent the establishment of a court to determine claims against the United States to lands in the territories, with judges of limited terms, or the giving of appeal therefrom to the supreme court.

3. Congress having authority to establish a court, unaffected by the definitions of Const. art. 3, § 1, to determine claims against the United States to lands in the territories, the fact that the act establishing the court gives it jurisdiction of such claims to lands in the states as well as the territories cannot affect its jurisdiction as to the lands in the territories, even if congress cannot give such a court jurisdiction as to the lands in the states.

Appeal from the Court of Private Land Claims.

On March 3, 1891, an act of congress was approved, entitled "An act to establish a court of private land claims, and to provide for the settlement of private land claims in certain states and territories." 26 Stat. 854, c. 539.

By the first section it was provided: "That there shall be, and hereby is, established a court to be called the court of private land claims, to consist of a chief justice and four associate justices, who shall be, when appointed, citizens and residents of some of the states of the United States, to be appointed▾ by the president, by and with the advice and consent of the senate, to hold their offices for the term expiring on the thirty-first day of December, Anno Domini eighteen hundred and ninety-five; any three of whom

shall constitute a quorum. Said court shall have and exercise jurisdiction in the hearing and decision of private land claims according to the provisions of this act."

Under section 6 it was made lawful "for any person or persons or corporation, or their legal representatives, claiming lands within the limits of the territory derived by the United States from the republic of Mexico and now embraced within the territories of New Mexico, Arizona, or Utah, or within the states of Nevada, Colorado, or Wyoming by virtue of any such Spanish or Mexican grant, concession, warrant, or survey as the United States are bound to recognize and confirm by virtue of the treaties of cession of said country by Mexico to the United States which at the date of the passage of this act have not been confirmed by act of congress, or otherwise finally decided upon by lawful authority, and which are not already complete and perfect, in every such case to present a petition, in writing, to the said court in the state or territory where said land is situated and where the said court holds its sessions, but cases arising in the states and territories in which the court does not hold regular sessions may be instituted at such place as may be designated by the rules of the court."

Section 7 provided: "That all proceedings subsequent to the filing of said petition shall be conducted as near as may be according to the practice of the courts of equity of the United States, except that the answer of the attorney of the United States shall not be required to be verified by his oath, and except that, as far as practicable, testimony shall be taken in court or before one of the justices thereof. The said court shall have full power and authority to hear and determine all questions arising in cases before it relative to the title to the land the subject of such case, the extent, location, and boundaries thereof, and other matters connected therewith fit and proper to be heard and determined, and by a final decree to settle and determine the question of the validity of the title and the boundaries of the grant or claim presented for adjudication, according to the law of nations, the stipulations of the treaty concluded between the United States and the republic of Mexico at the city of Guadalupe-Hidalgo, on the second day of February, in the year of our Lord, eighteen hundred and forty-eight, or the treaty concluded between the same powers at the city of Mexico, on the thirtieth day of December, in the year of our Lord, eighteen hundred and fifty-three, and the laws and ordinances of the government from which it is alleged to have been derived, and all other questions properly arising between the claimants or other parties in the case and the United States, which decree shall in all cases refer to the treaty, law, or ordinance under which such claim is confirmed or rejected; and in confirming any such claim, v.15s.c.-2

in whole or in part, the court shall in its decree specify plainly the location, boundaries, and area of the land the claim to which is so confirmed."

Under the eighth section, "any person or corporation claiming lands in any of the states or territories mentioned in this act under a title derived from the Spanish or Mexican government that was complete and perfect at the date when the United States acquired sovereignty therein" was given the right to apply to the court in the manner in the act provided for other cases, for a confirmation of such title.

Section 9 was as follows: "That the party against whom the court shall in any case decide the United States, in case of the confirmation of a claim in whole or in part, and the claimant, in case of the rejection of a claim, in whole or in part-shall have the right of appeal to the supreme court of the United States, such appeal to be taken within six months from date of such decision, and in all respects to be taken in the same manner and upon the same conditions, except in respect of the amount in controversy, as is now provided by law for the taking of appeals from decisions of the circuit courts of the United States. On any such appeal the supreme court shall retry the cause, as well the issues of fact as of law, and may cause testimony to be taken in addition to that given in the court below, and may amend the record of the proceedings below as truth and justice may require; and on such retrial and hearing every question shall be open, and the decision of the supreme court thereon shall be final and conclusive. Should no appeal be taken as aforesaid the decree of the court below shall be final and conclusive."

By paragraph 5 of section 13 it was provided: "No proceeding, decree, or act under this act shall conclude or affect the private rights of persons as between each other, all of which rights shall be reserved and saved to the same effect as if this act had not been passed; but the proceedings, decrees, and acts herein provided for shall be conclusive of all rights as between the United States and all persons claiming any interest or right in such lands."

Section 19 read thus: "That the powers and functions of the court established by this act shall cease and determine on the thirty-first day of December, eighteen hundred and ninety-five, and all papers, files, and records in the possession of said court belonging to any other public office of the United States shall be returned to such office, and all other papers, files, and records in the possession of or appertaining to said court shall be returned to and filed in the department of the interior."

The court of private land claims was accordingly duly organized, and upon the pleadings and evidence in this case proceeded to a decree confirming a Mexican grant

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in favor of the appellee to land in the territory of Arizona. An appeal having been duly prayed and allowed, and the record having been filed in this court, a motion to dismiss the appeal for want of jurisdiction was submitted.

Sol. Gen. Maxwell, for the United States. E. M. Sanford, for appellee.

*Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

The motion to dismiss rests upon two grounds: (1) That the congress had no power to confer upon this court jurisdiction to entertain an appeal from the decree of the court of private land claims, because the latter is not vested with judicial power in virtue of any provision of the constitution; (2) that if this be not so, nevertheless the act creating that court, in prescribing the course of procedure upon appeal, imposed upon this court the exercise of original jurisdiction contrary to the provisions of the constitution, and that, therefore, no appeal would lie.

The second of these grounds does not appear to us to afford any support to appellee's contention. This is not one of the cases within the original jurisdiction of this court, and if it be one of those in respect of which the court has appellate jurisdiction, that jurisdiction exists "both as to law and fact, with such exceptions, and under such regulations, as the congress shall make."

*If the paragraph in the ninth section of the act, providing that this court shall retry causes coming up on appeal, "as well the issues of fact as of law, and may cause testimony to be taken in addition to that given in the court below, and may amend the record of the proceedings below as truth and justice may require; and on such retrial and hearing every question shall be open," were obnoxious to the objection that in whole or in part it was not such a regulation as the congress had power to enact, then the section would, to that extent, be invalid; but this would not take away the right of appeal itself, nor could the question of such invalidity arise except when particular action was asked under the clause.

We understand the suggestion as made to relate to the authority to allow further proofs or the record to be amended. Causes in the court of private land claims are in effect equity causes, and brought to this court by appeal, and, as observed by Chief Justice Ellsworth, in Wiscart v. Dauchy, 3 Dall. 321: "An appeal is a process of civillaw origin and removes a cause entirely, subjecting the fact, as well as the law, to a review and retrial; but a writ of error is a process of common law, and it removes nothing for examination but the law."

The remedy by appeal in its original sense was confined to causes in equity, ecclesiastical, and admiralty jurisdiction. Undoubtedly appellate courts proceeding ac

cording to the course of the civil law may allow parties to introduce new allegations and further proofs, and such has been the settled practice of the ecclesiastical courts in England and of the admiralty courts in this country. Nevertheless orders allowing this to be done are not granted as matter of course, but made with extreme caution, and only on satisfactory grounds. As to appeals to this court from the decrees of circuit courts in equity causes, it was provided by the second section of the act of congress of March 3, 1803 (2 Stat. 244, c. 40, carried forward into section 698 of the Revised Statutes), which was the first enactment giving the remedy by appeal, "that no new evidence shall be received in the said court, on the hearing of such appeal, except in admiralty and prize causes." Holmes v. Trout, 7 Pet. 171; Mitchel v. U. S., 9 Pet.*711; Boone v. Chiles, 10 Pet. 177; Blease v. Garlington, 92 U. S. 1. And in respect, of the allowance of amendments, when the ends of justice require it, the course has been to remand the cause with directions. Wiggins Ferry Co. v. Ohio & M. Ry. Co., 142 U. S. 396, 12 Sup. Ct. 188, and cases cited.

Under what circumstances and to what extent the power to amend the record of the proceedings below under this act, or to cause additional testimony to be taken, was intended to be exercised, we are not now called on to consider. The statute is not mandatory, but empowers the court to direct further proofs, and to amend the record, if, in its judgment, the case demands its interposition to that effect; and, as the question is one of power merely, and not properly arising for determination on this motion, we need not prolong these observations.

The principal ground relied on by appellee is that the court of private land claims is not a tribunal vested with judicial power in virtue of any provision of the constitution, and therefore the congress had no power to confer upon this court jurisdiction to entertain appeals from its decisions.

By article 8 of the treaty of GuadalupeHidalgo, and article 5 of the Gadsden treaty, the property of Mexicans within the territory ceded by Mexico to the United States was to be "inviolably respected," and they and their heirs and grantees were to enjoy with respect to it "guaranties equally ample as if the same belonged to citizens of the United States." 9 Stat. 929, 930; 10 Stat. 1035. While claimants under grants made by Mexico or the Spanish authorities prior to the cession had no right to a judicial determination of their claims, congress nevertheless might provide therefor if it chose to do so. Astiazaran v. Mining Co., 148 U. S. 80, 13 Sup. Ct. 457. And it was for this purpose that the act of March 3, 1891, was passed, establishing the court of private land claims for the settlement of claims against the United States to lands "derived by the United States from the republic of Mexico, and now embraced with

*84

in the territories of New Mexico, Arizona, or Utah or within the States of Nevada, Colorado, or Wyoming."

The argument is that the court thus created, composed of judges holding office for a time limited, is not one of the courts mentioned in article 3 of the constitution, whereby the judicial power of the United States is vested in one supreme court and in such inferior courts as congress may from time to time establish, the judges of which hold their offices during good behavior, receiving at stated times for their services a compensation that cannot be diminished during their continuance in office, and are removable only by impeachment; and that the appellate power of this court cannot be extended to the revision of the judgments and decrees of such a court. Granting that the court of private land claims does not come within the third article, the conclusion assumes either that the power of congress to create courts can only be exercised in virtue of that article, or that Jucial tribunals otherwise established cannot be placed under the supervisory power of this court.

It must be regarded as settled that section 1 of article 3 does not exhaust the power of congress to establish courts. The leading case upon the subject is American Insurance Co. v. 356 Bales of Cotton, 1 Pet. 511, 546, in which it was held in respect of territorial courts (Chief Justice Marshall delivering the opinion) that while those courts are not courts in which the judicial power conferred by article 3 can be deposited, yet that they are legislative courts, created in virtue of the general right of sovereignty which exists in the government over the territories, or of the clause which enables congress to make all needful rules and regulations respecting the territory belonging to the United States. The authorities are referred to and commented on by Mr. Justice Harlan in McAllister v. U. S., 141 U. S. 174, 11 Sup. Ct. 949.

The case before us relates to the determination of a claim against the United States to lands situated in the territory of Arizona, and, as it was clearly within the authority of congress to establish a court for such determination, unaffected by the definitions of article 3, the question is not presented whether it was within the power of congress to create a judicial tribunal of this character for the determination of title to property situated in the states, where the courts of the United States proper are parts of the federal system, "invested with the judicial power of the United States expressly conferred by the constitution, and to be exercised in correlation with the presence and jurisdiction of the several state courts and governments." Hornbuckle v. Toombs, 18 Wall. 648, 655.

And as wherever the United States exercise the power of government, whether under specífic grant or through the dominion and sovereignty of plenary authority, as over the territories (Shively v. Bowlby, 152 U. S. 1,

48, 14 Sup. Ct. 548), that power includes the ultimate executive, legislative, and judicial power, it follows that the judicial action of all inferior courts established by congress may, in accordance with the constitution, be subjected to the appellate jurisdiction of the supreme judicial tribunal of the government. There has never been any question in regard to this as applied to territorial courts, and no reason can be perceived for applying a different rule to the adjudications of the court of private land claims over property in the territories.

The motion to dismiss is denied.

(155 U. S. 3)

INTERSTATE COMMERCE COMMISSION v. BRIMSON et al. (May 26, 1894.) No. 883.

CONSTITUTIONAL LAW JUDICIAL POWERS-COMPELLING ATTENDANCE OF WITNESS BEFORE INTERSTATE COMMERCE COMMISSION.

1. The provision of section 12 of the interstate commerce act authorizing circuit courts, on refusal of any person to obey a subpoena issued by the interstate commerce commission, to order such person to appear before the commission and give evidence, failure to obey such order to be punishable by the court as a contempt thereof, is unconstitutional, because by it the courts are made mere agents to assist an administrative body in the prosecution of its inquiries, and their inherent power to punish for contempt is exercised, not to preserve their authority, nor in aid of proceedings carried on in them, but to aid a merely administrative body, and to compel obedience to its requirements. Per Mr. Justice Brewer, and Mr. Chief Justice Fuller and Mr. Justice Jackson, dissenting.

2. Such a proceeding is not substantially similar to that which would arise under an act imposing penalties on parties refusing to testify before the commission, because, in a criminal prosecution, or in an action at law if the penalty exceeded $20, defendants would have the constitutional guaranty of a trial by jury; and a statute making such refusal criminal must define the questions, or at least the scope of the questions, to be asked. Per Mr. Justice Brewer, and Mr. Chief Justice Fuller and Mr. Justice Jackson, dissenting.

3. The duty of persons engaged in interstate commerce to answer the questions of the commission, if it exists at all, is a political and not a judicial duty, and cannot be enforced by the courts through proceedings as for contempt. Per Mr. Justice Brewer, and Mr. Chief Justice Fuller and Mr. Justice Jackson, dissenting.

4. That there is a dispute between parties on the one side and on the other does not make such a proceeding a case that calls for judicial action. Per Mr. Justice Brewer, and Mr. Chief Justice Fuller and Mr. Justice Jackson, dissenting.

Appeal from the Circuit Court of the United States for the Northern District of Illinois. For the opinion of the court, reversing the Judgment of the circuit court, and remanding the cause for further proceedings, see 14 Sup. Ct. 1125.

Atty. Gen. Olney, Sol. Gen. Maxwell, and Geo. F. Edmunds, for appellant. E. Parmalee Prentice, J. C. Hutchins, and Chas. S. Holt, for appellees.

Mr. Justice BREWER (dissenting). I dissent from the opinion and judgment of the court in this case. I notice, as a preliminary matter, a practice which I think is not to be commended, and ought not to be pursued. The application to punish the three appellees was denied by the circuit court. The reason given for the decision was the unconstitutionality of that portion of the interstate commerce act which requires a court to treat and punish as a contempt of its authority the refusal of a witness before the commission to answer questions. In the opinion this court considers that reason, holds it unsound, and remands the case for further proceedings. On such further proceedings the circuit court may, without disobedience of the mandate, again deny the application, for the further reason that the questions propounded by the commission to the witnesses are deemed irrevelant or incompetent, and on a second appeal it may be that this court will also be of the same opinion, and then this curious result will appear: Of two successive judgments in the same case, each denying the same applica- | tion, this court sustains one and reverses the other. I had supposed the rule was settled that the inquiry in this court was simply whether that which was adjudged by the trial court was erroneous, and not whether the reasons given therefor were good or bad, and that a correct judgment was always sustained, even if the reasons given therefor were erroneous. But this is a minor matter, and I only notice it to express my dissent from the practice.

I pass, therefore, to the important question considered by the court in its opinion. With the bulk of that opinion I have no disposition to quarrel. I agree as to the power of the United States over interstate commerce, but that throws no more light on the real question involved herein than an inquiry into the power of congress to enact laws would upon the question determined in Kilbourn v. Thompson, 103 U. S. 168, of the right of the house of representatives to punish as for contempt one who refused to disclose the business of a real-estate partnership of which he was a member. The power of congress to use all reasonable and proper means for exercising its control over interstate commerce carries with it no right to break down the barriers between judicial and administrative duties, or to make courts the mere agents to assist an administrative body in the prosecution of its inquiries; fer, if the power exists, as is affirmed by this decision, it carries with it the power to make courts the mere assistants of every administrative board or executive officer in the pursuit of any information desired, or in the execution of any duties imposed. It informs congress that the only mistake it made in the Kilbourn Case was in itself attempting to punish for contempt, and that hereafter the same result can be accomplished by an

act requiring the courts to punish for contempt those who refuse to answer questions put by either house, or any committee thereof.

It must be borne in mind that this is purely and solely a proceeding for contempt. No action is pending in the court to enforce a right or redress a wrong, public or private. No inquiry is being carried on in it with a? view to the punishment of crime; nothing sought to be done for the perpetuation of testimony, or in aid of any judicial proceeding. The delinquent is punished for a contempt of court in refusing to testify before a commission in aid of an investigation carried on by such commission. What is this power vested in courts, of punishment for contempt, and for what purpose is it vested? It is a power of summary punishment, and existing to enable the courts to discharge their judicial duties. "Contempt of court is a specific criminal offense." New Orleans v. New York Mail S. S. Co., 20 Wall. 392. In Anderson v. Dunn, 6 Wheat. 204, 227, it was said that "courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum in their presence, and submission to their lawful mandates." So in Ex parte Robinson, 19 Wall. 505, 510: "The power to punish for contempts is inherent in all courts. Its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moments the courts of the United States were called into existence, and invested with jurisdiction over any subject, they became possessed of this power." in Cooper's Case, 32 Vt. 253, 257: "The power to punish for contempt is inherent in the nature and constitution of a court. It is a power not derived from any statute, but arising from necessity; implied because it is necessary to the exercise of all other powers."

And

A contempt presupposes some act derogatory to the power and authority of the court. But before this proceeding was initiated the only authority disregarded was that of the commission. The court treats such act derogatory to the powers of the commission as derogatory to its own, and punishes, as for a contempt of its own authority, one who disobeys the order of the commission. It is no sound answer to say that the court orders the witness to testify, and punishes for disobedience of that order. The real wrong is in not testifying before the commission, and that is the ground of the punishment, otherwise, any disregard of any duty can be treated as a contempt of court, and punished as such. It will be sufficient to cite the delinquent, and order his punishment as for a contempt of court unless he discharges that duty. His failure to obey the order of the court is only the nominal, while the failure to discharge the prior duty is the real,

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