without a jury, and it is its duty to cause a written opinion to be filed in the case, setting forth the specific findings of the court on the facts, and its conclusions upon the questions of law involved, and to render judgment thereon.14 The court must proceed according to the nature of the cause of action asserted, whether at common law, in equity, or admiralty.

SAME THE APPEAL

76. On the decision of the case, either the plaintiff or the United States may have the right of appeal or writ of error, according to the nature of the case.

Section 9 of the original act gave a right of appeal to either side, and conformed the procedure and the question whether to go up by appeal or writ of error to the general laws on the subject. This section is repealed by the Judicial Code, evidently because it is superfluous.

In Chase v. United States 15 the question was presented whether the course of review in such case should be by appeal, or whether it could also be by writ of error. It was decided that the method of review depended upon the nature of the case. If it was in its nature a common-law case, the review should be by writ of error. If it was an equity or admiralty case, the review should be by appeal. This test, while clear enough on principle, may frequently be difficult to apply in practice. The only pleadings are petition and answer, and there are so many instances where courts of common law, courts of equity, and courts of ad

14 This finding may be in the form of a decree and an opinion separate from the decree. U. S. v. Hyams, 146 Fed. 15, 76 C. C. A. 523. See "United States," Dec. Dig. (Key-No.) § 143.

15 155 U. S. 489, 15 Sup. Ct. 174, 39 L. Ed. 284. See, also, U. S. v. Harsha, 172 U. S. 567, 19 Sup. Ct. 294, 43 L. Ed. 556. See, also, U. S. v. Swift, 139 Fed. 225, 226, 71 C. C. A. 351; Price v. U. S., 169 Fed. 791, 95 C. C. A. 257. See "Courts," Dec. Dig. (Key-No.) § 356; "United States," Dec. Dig. (Key-No.) § 146.

miralty have concurrent jurisdiction, that it may often be difficult to decide in a given case whether the case is in its nature a common-law, an equity, or an admiralty suit. For instance, suppose the case of towing in a disabled lightship at the request of the crew aboard; if the vessel were not a government vessel, the party rendering the service could sue on a simple contract of employment at common law, or could sue in personam or in rem in an admiralty court for salvage. So, too, if the government should charter some vessel and the owner should sue for the charter money, that would be a suit of which either a commonlaw or an admiralty court might have jurisdiction. In such cases either method of review would probably be safe.

SAME THE PROPER APPELLATE COURT

77. The proper appellate court in such cases, where no special question is involved, is the circuit court of appeals.

The court to which appeals from decisions of the district court should now be taken, where no special question is involved, is the circuit court of appeals. Prior to the act of March 3, 1891,10 establishing that court, the Supreme Court had held that an appeal went from the district court to the Supreme Court, regardless of the amount involved, basing it upon the rule applicable to the court of claims.17 Chase v. United States,18 though not decided until 1894, was an appeal from a judgment rendered in November, 1890. But the fourth section of the act of March 3, 1891 (left in force by the Judicial Code), establishing the circuit

16 U. S. Comp. St. 1901, p. 547.

17 U. S. v. Davis, 131 U. S. 36, 9 Sup. Ct. 657, 33 L. Ed. 93. "Courts," Dec. Dig. (Key-No.) § 405.

See

18 155 U. S. 489, 15 Sup. Ct. 174, 39 L. Ed. 284. See "Courts," Dec. Dig. (Key-No.) § 405.

courts of appeals, provides that judgments of the district courts are subject to review only in the Supreme Court of the United States, or in the circuit courts of appeals as therein provided. The fifth section, as modified by section 238 of the Judicial Code, gives the Supreme Court jurisdiction only in special cases, involving mainly jurisdictional or constitutional questions. The sixth section, as modified by section 128 of the Judicial Code, provides that the circuit court of appeals shall review the final decisions of the district court in all cases other than those that can be taken direct to the Supreme Court, unless otherwise provided by law. Under these different provisions appeals should go to the circuit court of appeals, unless there was some special ground of jurisdiction in the Supreme Court like those mentioned in the fifth section.19

Bigby v. United States 20 went to the Supreme Court because there was a certificate that the jurisdiction of the court was in issue.

The case goes up for review simply on the findings of the court as to the facts and law, which is much like a special verdict.21 These decisions probably mean nothing more than that the plaintiff cannot take his whole case up on the evidence. They can hardly be presumed to mean that the lower court, by its opinion and findings, could shut out the review of rulings on legal questions. For instance, if the lower court should exclude evidence which it ought to have admitted, surely the plaintiff could take a bill of exceptions to such exclusion if the case were a commonlaw case, or make a formal tender of what he expected to prove in the depositions, and get the ruling of the court.

19 U. S. v. Harsha, 172 U. S. 567, 19 Sup. Ct. 294, 43 L. Ed. 556. See "Courts," Dec. Dig. (Key-No.) § 405.

20 188 U. S. 400, 23 Sup. Ct. 468, 47 L. Ed. 519. See "Courts," Dec. Dig. (Key-No.) §§ 281, 405.

21 U. S. v. Kelly, 89 Fed. 946, 32 C. C. A. 441; Stone v. U. S., 164 U. S. 380, 17 Sup. Ct. 71, 41 L. Ed. 477. See "Courts," Dec. Dig. (Key-No.) § 356; "United States," Dec. Dig. (Key-No.) § 146.

thereon, if the case were in equity or admiralty, and have the appellate court review the action of the lower court for such error of law.

SUITS TO ABATE UNLAWFUL INCLOSURES OF
PUBLIC LANDS

78. The district court is given certain statutory jurisdiction in suits to abate unlawful inclosures of public lands.

Under the act of February 25, 1885,22 inclosures of public lands by parties not having any color of title thereto are forbidden, and it is made the duty of the district attorney to institute a civil suit in the proper district or circuit court in the name of the United States against the offender. Paragraph 21, § 24, of the Judicial Code, confers this jurisdiction on the district court. It provides that process may be served on any agent or employé who has charge or control of the inclosure. Under this act equity has jurisdiction to remove an illegal inclosure by mandatory injunction, or to prohibit the erection of any other by ordinary injunction.23 The proceeding is a special statutory proceeding giving relief in a form unknown to the commonlaw courts. It is not available against any one who claims under a bona fide claim or color of title, nor can the legal validity of the defendant's title be settled in such a suit. As far as title is concerned, the only question which the court can consider is whether the defendant has a bona fide claim or color of title.24

22 23 Stat. 321, c. 149 (U. S. Comp. St. 1901, p. 1524).

23 U. S. v. Brighton Ranch Co. (C. C.) 25 Fed. 465; Id. (C. C.) 26 Fed. 218. See "Public Lands," Dec. Dig. (Key-No.) § 19; Cent. Dig. $$ 25, 26.

24 U. S. v. Osborn (C. C.) 44 Fed. 29; Cameron v. U. S., 148 U. S. 301, 13 Sup. Ct. 595, 37 L. Ed. 459. See "Public Lands," Dec. Dig. (Key-No.) § 19; Cent. Dig. §§ 25, 26.

The act forbids any inclosure of government lands, though the inclosure is brought about by fences erected on the claimant's own lands. For instance, where the claimant owned alternate sections and the other sections were owned by the government, it was held a violation of the act to build fences, on the claimant's own lands, a few inches off from the boundary, the result of which was to inclose the government's sections also; and this though the claimant supplied gates giving easy access to the government's sections, and though the claimant's object was a public One, 25

SUITS UNDER IMMIGRATION LAWS

79. The twenty-second paragraph of section 24 of the Judicial Code confers on the district court jurisdiction of all suits and proceedings regulating the immigration of aliens, or under the contract labor laws.

The growing sentiment against indiscriminate immigration has resulted in gradually making the laws on the subject more stringent. The act of February 20, 1907,26 regulates the subject in detail. The act of April 29, 1902,27 as amended April 27, 1904,28 applies only to Chinese immigration and residence. The third section of the act of February 20, 1907, punishing the keeping of an alien woman for purposes of prostitution within three years after her entry into the United States, is unconstitutional.29 But the ninth

25 Camfield v. U. S., 167 U. S. 518, 17 Sup. Ct. 864, 42 L. Ed. 260; Homer v. U. S., 185 Fed. 741, 108 C. C. A. 79. See "Public Lands," Dec. Dig. (Key-No.) § 19; Cent. Dig. §§ 25, 26.

26 34 Stat. 898, c. 1134 (U. S. Comp. St. Supp. 1911, p. 499), amended March 4, 1909 (35 Stat. 969-982, c. 299), also March 26, 1910 (36 Stat. 263, c. 128 [U. S. Comp. St. Supp. 1911, p. 500]).

27 32 Stat. 176, c. 641 (U. S. Comp. St. Supp. 1911, p. 524).

28 33 Stat. 428, c. 1630.

29 Keller v. U. S., 213 U. S. 138, 29 Sup. Ct. 470, 53 L. Ed. 737, 16

HUGHES FED.PR.(2D ED.)-13