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al., Defendants, and M. J. Gray, Mrs. A. F. the issue of citation to A. F. Sipperley and Sipperley, Mrs. E. J. Walling, H. A. Lee, and H. S. Lee, or leave to perfect the appeal as to the Union Bank of Greeley, Colorado, In them; nor did they or Gray appear herein. terveners." The record did not contain the Appellees moved to dismiss or affirm. prayer for and allowance of appeal to the

Chas. H. Armes, for the motion. John W. supreme court of Utah, but showed as at the

Judd, opposed. June term, 1893, of that court, the following order: "John O. Smith et al. v. A. F. Sip

Mr. Chief Justice FULLER. The motion perley et al., Defts., and M. J. Gray et al.,

to dismiss is sustained, upon the authority Interveners & Appellants. This cause, coin

of Masterson v. Herndon, 10 Wall. 416; Haring on regularly to be heard, was argued by

dee v. Wilson, 146 U. S. 179, 13 Sup. Ct. 39; Hon. John W. Judd in behalf of appellants,

Inglehart v. Stansbury, 151 U. S. 68, 14 Sup. by Charles C. Dey, Esq., in reply, was sub

Ct. 237; and Davis v. Trust Co., 152 U. S. mitted, and taken under advisement." The

590, 14 Sup. Ct. 693. judgment of the district court was thereafter

Appeal dismissed. affirmed. 34 Pac. 54. The opinion of the supreme court is given, and is entitled “John 0. Smith et al., Respondents, v. A. F. Sipperley

(155 U. S. 76) et al., Appellants." Subsequently this order

UNITED STATES V. COE. was entered: “John 0. Smith et al. v. A. F. Sipperley, Defts., and M. J. Gray et al., In

(October 29, 1894.) terveners & Appellants. In this cause coun

No. 591. sel for appellants prays the allowance of an

COURT OF PRIVATE LAND CLAIMS-ESTABLISHMENT appeal from the judgment of this court ren

-APPEAL TO SUPREME COURT. dered therein to the supreme court of the

1. Even if the provisions of Act March 3,

1891 (26 Stat. 851, c. 539, $ 9), that on appeal United States, and asks that the amount of from the court of private land claims to the a bond to be given thereon be now fixed; supreme court the latter may allow further and it was ordered that such appeal as

proof and amendment of the record, are in

whole or in part in excess of the legislative prayed for be, and is hereby, allowed, and

power of congress, the right of appeal is not the amount of a bond to be given thereon is thereby taken away; nor can the question of fixed in the sum of five thousand dollars, and

such invalidity arise on motion to dismiss apthe amount of a bond for costs is fixed in the

peal, but only when action under the provisions

is asked. sum of five hundred (500) dollars."

2. Const. art. 3, § 1, providing that the The record disclosed a bond dated Decem judicial power of the United States shall be ber 22, 1893, entitled "John O. Smith et al.,

vested in a supreme court and such inferior

courts as congress may establish, the judges of Respondents, v. A. F. Sipperley et al., De which shall hold office during good behavior, fendants, and M. J. Gray et al., Interveners, does not prevent the establishment of a court Appellants," signed by Mrs. Sipperley, Mrs.

to determine claims against the United States

to lands in the territories, with judges of limWalling, H. A. Lee, and the Union Bank of

ited terms, or the giving of appeal therefrom Greeley, Colo., as principals, running to John to the supreme court. O. Smith, George Whiting, Charles P. Con 3. Congress having authority to establish

& court, unaffected by the definitions of Const. nor, and George S. Smith, composing the

art. 3, § 1, to determine claims against the firm of Smith, Whiting, Connor & Co., in the United States to lands in the territories, the penal sum of $5,500, and reciting that“where fact that the act establishing the court gives it as the above-named Mistress A. F. Sipperley,

jurisdiction of such claims to lands in the

states as well as the territories cannot affect its Mistress E. J. Walling, H. A. Lee, and the jurisdiction as to the lands in the territories, L'nion Bank of Greeley, Colorado, have pros even if congress cannot give such a court jur. ecuted an appeal to the supreme court of the

isdiction as to the lands in the states. L'nited States," etc. This bond was approved Appeal from the Court of Private Land by the chief justice of Utah, and filed on the Claims. day of its date. Citation was issued, dated On March 3, 1891, an act of congress was January 4, 1894, and directed to John O. approved, entitled "An act to establish a Smith, George Whiting, Charles P. Connor, court of private land claims, and to provide George S. Smith, and their attorneys, reciting for the settlement of private land claims that Mrs. Sipperley, Mrs. Walling, H. A. Lee, in certain states and territories." 26 Stat and the Union Bank of Greeley, Colorado, had 854, c. 539. appealed, etc., service of which citation was By the first section it was provided: “That admitted January 12, 1894. An assignment there shall be, and hereby is, established a of errors in this court was also filed in that court to be called the court of private land court January 12th, entitled “John 0. Smith claims, to consist of a chief justice and four et al. v. A. F. Sipperley et al., and Mrs. A. F. associate justices, who shall be, when ap Sipperley, Mrs. E. J. Walling, H. A. Lee, and pointed, citizens and residents of some of the the Union Bank of Greeley, Colorado, Inter states of the United States, to be*appointed veners & Appellants." No application for by the president, by and with the advice summons and severance as to M. J. Gray, or and consent of the senate, to hold their offices any equivalent therefor, appeared in the rec for the term expiring on the thirty-first day ord, por any order permitting severance; nor of December, Anno Domini eighteen hunwas any application made in this court for dred and ninety-five; any thrce of whom


shall constitute a quorum. Said court shall in whole or in part, the court shall in its have and exercise jurisdiction in the hear decree specify plainly the location, boundaing and decision of private land claims ac ries, and area of the land the claim to which cording to the provisions of this act."

is so confirmed." Under section 6 it was made lawful "for Under the eighth section, "any person or any person or persons or corporation, or their corporation claiming lands in any of the legal representatives, claiming lands within states or territories mentioned in this act the limits of the territory derived by the under a title derived from the Spanish or United States from the republic of Mexico Mexican government that was complete and and now embraced within the territories of perfect at the date when the United States New Mexico, Arizona, or Utah, or within the acquired sovereignty therein" was given the states of Nevada, Colorado, or Wyoming by right to apply to the court in the manner in virtue of any such Spanish or Mexican grant, the act provided for other cases, for a conconcession, warrant, or survey as the United firmation of such title. States are bound to recognize and confirm Section 9 was as follows: "That the party by virtue of the treaties of cession of said against whom the court shall in any case decountry by Mexico to the United States cide-the United States, in case of the conwhich at the date of the passage of this act firmation of a claim in whole or in part, have not been confirmed by act of congress, and the claimant, in case of the rejection of or otherwise finally decided upon by lawful a claim, in whole or in part-shall have the authority, and which are not already com right of appeal to the supreme court of the plete and perfect, in every such case to pre United States, such appeal to be taken withsent a petition, in writing, to the said court in six months from date of such decision, and in the state or territory where said land is in all respects to be taken in the same man. situated and where the said court holds its ner and upon the same conditions, except in sessions, but cases arising in the states and respect of the amount in controversy, as is territories in which the court does not hold now provided by law for the taking of apregular sessions may be instituted at such peals from decisions of the circuit courts of place as may be designated by the rules of the United States. On any such appeal the the court."

supreme court shall retry the cause, as well Section 7 provided: “That all proceedings the issues of fact as of law, and may cause subsequent to the filing of said petition shall testimony to be taken in addition to that be conducted as near as may be according given in the court below, and may amend to the practice of the courts of equity of the record of the proceedings below as truth the United States, except that the answer and justice may require; and on such retrial of the attorney of the United States shall and hearing every question shall be open, not be required to be verified by his oath, and the decision of the supreme court thereand except that, as far as practicable, tes on shall be final and conclusive. Should no timony shall be taken in court or before one appeal be taken as aforesaid the decree of of the justices thereof. The said court shall the court below shall be final and concluhave full power and authority to hear and sive." determine all questions arising in cases be By paragraph 5 of section 13 it was profore it relative to the title to the land the vided: "No proceeding, decree, or act under subject of such case, the extent, location, this act shall conclude or affect the private and boundaries thereof, and other matters rights of persons as between each other, all connected therewith fit and proper to be of which rights shall be reserved and saved heard and determined, and by a final decree to the same effect as if this act had not been to settle and determine the question of the passed; but the proceedings, decrees, and validity of the title and the boundaries of acts herein provided for shall be conclusive the grant or claim presented for adjudica of all rights as between the United States tion, according to the law of nations, the and all persons claiming any interest or right stipulations of the treaty concluded between in such lands." the United States and the republic of Mex Section 19 read thus: “That the powers ico at the city of Guadalupe-Hidalgo, on the and functions of the court established by second day of February, in the year of our this act shall cease and determine on the Lord, cighteen hundred and forty-eight, or thirty-first day of December, eighteen hunthe treaty concluded between the same pow dred and ninety-five, and all papers, files, ers at the city of Mexico, on the thirtieth and records in the possession of said court day of December, in the year of our Lord, belonging to any other public office of the eighteen hundred and fifty-three, and the United States shall be returned to such of. laws and ordinances of the government from fice, and all other papers, files, and records which it is alleged to have been derived, and in the possession of or appertaining to said all other questions properly arising between court shall be returned to and filed in the the claimants or other parties in the case department of the interior." and the United States, which decree shall in The court of private land claims was acall cases refer to the treaty, law, or ordinance cordingly duly organized, and upon the under which such claim is confirmed or re pleadings and evidence in this case proceedjected; and in confirming any such claim, ed to a decree confirming a Mexican grant


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in favor of the appellee to land in the ter cording to the course of the civil law may alritory of Arizona. An appeal having been low parties to introduce new allegations and duly prayed and allowed, and the record further proofs, and such has been the settled having been filed in this court, a motion to practice of the ecclesiastical courts in Eng. dismiss the appeal for want of jurisdiction land and of the admiralty courts in this was submitted.

country. Nevertheless orders allowing this Sol. Gen. Maxwell, for the United States.

to be done are not granted as matter of E. M. Sanford, for appellee.

course, but made with extreme caution, and

only on satisfactory grounds. As to appeals * Mr. Chief Justice FULLER, after stating the

to this court from the decrees of circuit facts in the foregoing language, delivered courts in equity causes, it was provided by the opinion of the court.

the second section of the act of congress of The motion to dismiss rests upon two March 3, 1803 (2 Stat. 244, c. 40, carried forgrounds: (1) That the congress had no pow. ward into section 698 of the Revised Stater to confer upon this court jurisdiction to utes), which was the first enactment giving entertain an appeal from the decree of the the remedy by appeal, “that no new evidence court of private land claims, because the lat shall be received in the said court, on the ter is not vested with judicial power in virtue hearing of such appeal, except in admiralty of any provision of the constitution; (2) that and prize causes." Holmes v. Trout, 7 Pet. if this be not so, nevertheless the act creat 171; Mitchel v. U. S., 9 Pet. *711; Boone v. ing that court, in prescribing the course of Chiles, 10 Pet. 177; Blease v. Garlington, 92 procedure upon appeal, imposed upon this

U. S. 1. And in respect, of the allowance court the exercise of original jurisdiction con. of amendments, when the ends of justice retrary to the provisions of the constitution, quire it, the course has been to remand the and that, therefore, no appeal would lie. cause with directions. Wiggins Ferry Co.

The second of these grounds does not ap v. Obio & M. Ry. Co., 142 U. S. 396, 12 Sup. pear to us to afford any support to appellee's Ct. 188, and cases cited. contention. This is not one of the cases Under what circumstances and to what within the original jurisdiction of this court, extent the power to amend the record of the and if it be one of those in respect of which proceedings below under this act, or to cause the court has appellate jurisdiction, that additional testimony to be taken, was intendjurisdiction exists “both as to law and fact, ed to be exercised, we are not now called on with such exceptions, and under such regula to consider. The statute is not mandatory, tions, as the congress shall make."

but empowers the court to direct further *If the paragraph in the ninth section of proofs, and to amend the record, if, in its the act, providing that this court shall retry judgment, the case demands its interposition causes coming up on appeal, “as well the is to that effect; and, as the question is one of sues of fact as of law, and may cause testi power merely, and not properly arising for mony to be taken in addition to that given determination on this motion, we need not in the court below, and may amend the rec- prolong these observations. ord of the proceedings below as truth and The principal ground relied on by appellee justice may require; and on such retrial and is that the court of private land claims is not hearing every question shall be open," were a tribunal vested with judicial power in virtue obnoxious to the objection that in whole or of any provision of the constitution, and in part it was not such a regulation as the therefore the congress had no power to concongress had power to enact, then the section fer upon this court jurisdiction to entertain would, to that extent, be invalid; but this appeals from its decisions. would not take away the right of appeal it By article 8 of the treaty of Guadalupeself, nor could the question of such invalidi Hidalgo, and article 5 of the Gadsden treaty, ty arise except when particular action was the property of Mexicans within the territory asked under the clause.

ceded by Mexico to the United States was to We understand the suggestion as made to be “inviolably respected," and they and their relate to the authority to allow further heirs and grantees were to enjoy with respect proofs or the record to be amended. Causes to it “guaranties equally ample as if the same in the court of private land claims are in belonged to citizens of the United States." effect equity causes, and brought to this 9 Stat. 929, 930; 10 Stat. 1035. While claimcourt by appeal, and, as observed by Chief ant's under grants made by Mexico or the Justice Ellsworth, in Wiscart v. Dauchy, 3 Spanish authorities prior to the cession had Dall. 321: “An appeal is a process of civil no right to a judicial determination of their law origin and removes a cause entirely, sub claims, congress nevertheless wight provide jecting the fact, as well as the law, to a re therefor if it chose to do so. Astiazaran y. view and retrial; but a writ of error is a Mining Co., 148 U. S. SO, 13 Sup. Ct. 457. process of common law, and it removes noth And it was for this purpose that the act of ing for examination but the law."

March 3, 1891, was passed, establishing the The remedy by appeal in its original sense court of private land claims for the settlewas confined to causes in equity, ecclesi ment of claims against the United States to astical, and admiralty jurisdiction. Un lands "derived by the United States from the doubtedly appellate courts proceeding ac republic of Mexico, and now embraced with.

in the territories of New Mexico, Arizona, or 48, 14 Sup. Ct. 548), that power includes the

L'tah or within the States of Nevada, Colo ultimate executive, legislative, and Judicial rado, or Wyoming."

power, it follows that the judicial action of The argument is that the court thus cre all inferior courts established by congress ated, composed of judges holding office for a may, in accordance with the constitution, be time limited, is not one of the courts men. subjected to the appellate jurisdiction of the tioned in article 3 of the constitution, where supreme judicial tribunal of the government. by the judicial power of the United States There has never been any question in regard is vested in one supreme court and in such to this as applied to territorial courts, and no inferior courts as congress may from time to reason can be perceived for applying a diftime establish, the judges of which hold their ferent rule to the adjudications of the court otiices during good behavior, receiving at of private land claims over property in the stated times for their services a compensation territories. that cannot be diminished during their con The motion to dismiss is denied. tinuance in office, and are removable only by impeachment; and that the appellate power of this court cannot be extended to the revi.

(155 U. S. 3) sion of the judgments and decrees of such a INTERSTATE COMMERCE COMMISSION court. Granting that the court of private

V. BRIMSON et al. land claims does not come within the third

(May 26, 1894.) arucle, the conclusion assumes either that

No. 883. the power of congress to create courts can

CONSTITUTIONAL LAW - JUDICIAL Powers-COMonly be exercised in virtue of that article, or

PELLING ATTENDANCE OF WITNESS BEFORE INthat juurcial tribunals otherwise established TERSTATE COMMERCE COMMISSION. cannot be placed under the supervisory pow 1. The provision of section 12 of the interer of this court.

state commerce act authorizing circuit courts,

on refusal of any person to obey a subpoena is. It must be regarded as settled that section

sued by the interstate commerce commission, 1 of article 3 does not exhaust the power of to order such person to appear before the comcongress to establish courts. The leading

mission and give evidence, failure to obey such

order to be punishable by the court as a concase upon the subject is American Insurance

tempt thereof, is unconstitutional, because by Co. v. 356 Bales of Cotton, 1 Pet. 511, 546, it the courts are made mere agents to assist an in which it was held in respect of territorial administrative body in the prosecution of its courts (Chief Justice Marshall delivering the inquiries, and their inherent power to punish

for contempt is exercised, not to preserve their opinion) that while those courts are not authority, nor in aid of proceedings carried on courts in which the judicial power conferred in them, but to aid a merely administrative by article 3 can be deposited, yet that they body, and to compel obedience to its require are legislative courts, created in virtue of the

ments. Per Mr. Justice Brewer, and Mr. Chief

Justice Fuller and Mr. Justice Jackson, dissentgeneral right of sovereignty which exists in ing. the government over the territories, or of the 2. Such a proceeding is not substantially clause which enables congress to make all

similar to that which would arise under an

act imposing penalties on parties refusing to tesneedful rules and regulations respecting the

tify before the commission, because, in a crim. territory belonging to the United States. inal prosecution, or in an action at law if the The authorities are referred to and com penalty exceeded $20, defendants would have mented on by Mr. Justice Harlan in McAl.

the constitutional guaranty of a trial by fury;

and a statute making such refusal criminal lister v. U. S., 141 U. S. 174, 11 Sup. Ct. 949. must define the questions, or at least the scope

The case before us relates to the determina of the questions, to be asked. Per Mr. Justice tion of a claim against the United States to

Brewer, and Mr. Chief Justice Fuller and Mr.

Justice Jackson, dissenting. lands situated in the territory of Arizona,

3. The duty of persons engaged in interand, as it was clearly within the authority of state commerce to answer the questions of the congress to establish a court for such deter, commission, if it exists at all, is a political and mination, unaffected by the definitions of

not a judicial duty, and cannot be enforced by

the courts through proceedings as for contempt. article 3, the question is not presented wheth. Per Mr. Justice Brewer, and Mr. Chief Justice er it was within the power of congress to Fuller and Mr. Justice Jackson, dissenting. create a judicial tribunal of this character

4. That there is a dispute between parties

on the one side and on the other does not make for the determination of title to property situ.

such a proceeding a case that calls for judicial ated in the states, where the courts of the action. Per Mr. Justice Brewer, and Mr. Chief United States proper are parts of the federal

Justice Fuller and Mr. Justice Jackson, dissent

ing. system, "invested with the judicial power of the United States expressly conferred by the

Appeal from the Circuit Court of the Unitconstitution, and to be exercised in correla

ed States for the Northern District of Illinois. tion with the presence and jurisdiction of the For the opinion of the court, reversing the several state courts and governments." judgment of the circuit court, and remandHornbuckle v. Toombs, 18 Wall. 648, 655.

ing the cause for further proceedings, see 14 And as wherever the United States exer

Sup. Ot. 1125. cise the power of government, whether under Atty. Gen. Olney, Sol. Gen. Maxwell, and specific grant or through the dominion and Geo. F. Edmunds, for appellant. E. Parmasovereignty of plenary authority, as over the lee Prentice, J. C. Hutchins, and Chas. S. territories (Shively v. Bowlby, 152 U. S. 1, Holt, for appellees.

Mr. Justice BREWER (dissenting). I dis act requiring the courts to punish for consent from the opinion and judgment of the tempt those who refuse to answer questions court in this case. I notice, as a preliminary put by either house, or any committee there matter, a practice which I think is not to be of. commended, and ought not to be pursued. It must be borne in mind that this is purely The application to punish the three uppel and solely a proceeding for contempt. No lees was denied by the circuit court. The action is pending in the court to enforce a reason given for the decision was the un right or redress a wrong, public or private. constitutionality of that portion of the inter- | Noinquiry is being carried on in it with a state commerce act which requires a court view to the punishment of crime; nothing to treat and punish as a contempt of its au sought to be done for the perpetuation of thority the refusal of a witness before the testimony, or in aid of any judicial proceedcommission to answer questions. In the ing. The delinquent is punished for a conopinion this court considers that reason, tempt of court in refusing to testify before a holds it unsound, and remands the case for commission in aid of an investigation carfurther proceedings. On such further pro

ried on by such commission. What is this ceedings the circuit court may, without dis power vested in courts, of punishment for sbedience of the mandate, again deny the contempt, and for what purpose is it vested? application, for the further reason that the It is a power of summary punishment, and questions propounded by the commission to existing to enable the courts to discharge the witnesses are deemed irrevelant or in their judicial duties. “Contempt of court is competent, and on a second appeal it may a specific criminal offense." New Orleans y. be that this court will also be of the same New York Mail S. S. Co., 20 Wall. 392. In opinion, and then this curious result will ap Anderson v. Dunn, 6 Wheat. 204, 227, it was pear: Of two successive judgments in the said that "courts of justice are universally same case, each denying the same applica- acknowledged to be vested, by their very tion, this court sustains one and reverses tbe creation, with power to impose silence, re other. I bad supposed the rule was settled spect, and decorum in their presence, and that the inquiry in this court was simply submission to their lawful mandates."

So whether that which was adjudged by the in Ex parte Robinson, 19 Wall. 505, 510: trial court was erroneous, and not whether “The power to punish for contempts is inthe reasons given therefor were good or bad, herent in all courts. Its existence is essenand that a correct judgment was always sus tial to the preservation of order in judicial tained, even if the reasons given therefor proceedings, and to the enforcement of the were erroneous. But this is a minor matter, judgments, orders, and writs of the courts, and I only notice it to express my dissent and consequently to the due administration from the practice.

of justice. The moments the courts of the I pass, therefore, to the important ques. United States were called into existence, and tion considered by the court in its opinion. invested with jurisdiction over any subject, With the bulk of that opinion I have no dis they became possessed of this power." And position to quarrel. I agree as to the power in Cooper's Case, 32 Vt. 253, 257: “The powof the United States over interstate com er to punish for contempt is inherent in the merce, but that throws no more light on the nature and constitution of a court. It is a real question involved herein than an in power not derived from any statute, but arisquiry into the power of congress to enact ing from necessity; implied because it is neclaws would upon tbe question determined in essary to the exercise of all other powers." Kilbourn v. Thompson, 103 U. S. 163, of the A contempt presupposes some act derogaright of the house of representatives to pun tory to the power and authority of the court. ish as for contempt one who refused to dis But before this proceeding was initiated the close the business of a real-estate partner-only authority disregarded was that of the ship of which he was a member. The power commission. The court treats such act deof congress to use all reasonable and proper rogatory to the powers of the commission as means for exercising its control over inter derogatory to its own, and punishes, as for state commerce carries with it no right to a contempt of its own authority, one who break down the barriers between judicial disobeys the order of the commission. It is and administrative duties, or to make courts no sound answer to say that the court orders the mere agents to assist an administrative the witness to testify, and punishes for disbody in the prosecution of its inquiries; for, obedience of that order. The real wrong is if the power exists, as is affirmed by this de in not testifying before the commission, and. cision, it carries with it the power to make that is the ground of the punishment, other. courts the mere assistants of every adminis wise, any disregard of any duty can be treattrative board or executive officer in the pur ed as a contempt of court, and punished as suit of any information desired, or in the such. It will be sufficient to cite the delin. execution of any duties imposed. It informs quent, and order bis punishment as for a congress that the only mistake it made in

contempt of court unless he discharges that the Kilbourn Case was in itself attempting duty. His failure to obey the order of the to punish for contempt, and that hereafter court is only the nominal, while the failure the same result can be accomplished by an to discharge the prior duty is the real,

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