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Page:United States Statutes at Large Volume 45 Part 1.djvu/1595

 1544 SEVENTIETH CONGRESS. Srss. II. Ca. 682. 1929 . 120/1 shall dedicate to the District of Columbia for street purposes all of the parcel known and designated as Parcel F, containing forty-three thousand one hundred and sixty-one square feet, as shown on map filed in the office of the surveyor of the District of owner s to dedicate described land to the Columbia and numbered as map 1429, and shall further, in considera- Commi ssio ners of the tion of the incr ease in area of the prop erty of said own er o r ow ners District. of said parcel 120/1 by reason of the transfers as provided herein, dedicate to the District of Columbia about thirty-six thousand square feet of land, the location of which shall be mutually agreed upon by the Commissioners of the District of Columbia and the owner or Transfer of parcel as part of soldiers' uome owners of parcel 120/1, and that said owner or owners of said parcel grounds . 120/1 shall transfer to the United States as part of the grounds of the United States Military Asylum, known as the United States Soldiers' Home, all of the parcel known and designated as Parcel G, containing one thousand five hundred and forty-three square feet, as shown on said map numbered 1429 in the office of the sur- roriso. veyor of the District of Columbia : Provided, however, That the Transfer to the own- ers, desi g nated land by board of commissioners of the United States Soldiers' Home, or the Soldiers' Home com- missioners. proper authorities having title, control, or jurisdiction, shall transfer to the owner o r owners of t he parcel desi gnated on the assessment and taxa tion rec ords of the Dist rict of Colu mbia as parc el 1 20/1 all the land comprised within the parcel known and designated as Parcel C containing four thousand five hundred and seventeen square feet, as shown on map filed in the office of the surveyor of the District of Columbia and numbered as map 1429. P lat showing trans- SEC. 4 . That the surveyor of the Distric t of Columbia is hereby fers to be prepared and certified b y the Dis- authorized to prepare the necessary plat or plats showing all parcels trict surveyor . of land to be transferred in accordance with the provisions of this Act, with a certificate affixed thereon to be signed by the parties in interest making the necessary transfers ; which plat and certificate, after being si gned by the v arious interes ted parties a nd approved Recorded in office of surveyor . by the Commissioners of the District of Columbia, shall be recorded Legal tr ansfer of titl es upo n order of sa id commission ers in the off ice of the su rveyor of when so recorded. the District of Columbia ; and said plat or plats, when duly recorded in said office of the surveyor of the District of Columbia, shall con- stitute a legal transfer of title of the various parcels to the parties in interest according to the provisions contained in this Act. requ ired by Was hing SEC. 5. That the Washington Railway and Electric Company shall ton Railway and Elec- t ric be authorized an d required, u pon the straig htening and s hortening Company. b of the line of Michigan Avenue as provided herein, to remove the tra cks of said c ompany from t heir present l ocation along Michigan Avenue, from Franklin Street as laid down on the plan of the permanent system of highways of the District of Columbia to L incoln Road, and t o rel ocate said t racks along the c enter of Michigan Avenue according to the new location of said avenue between said points, as straightened and shortened in accordance with the provisions of this Act, and to bring said relocated tracks to approved grade of said avenue as determined by the Commis- sioners of the District of Columbia, and to do all necessary work in by the cos ts Company. expenses connection therewith, the costs and expenses of the removal and relaying of tracks and replacing the trolley poles, and all necessary work incident ther eto, to be bor ne by said Wa shington Rail way and Supervi sion of work. Electric Company ; all such work to be performed under the super- vision and to the satisfaction and approval of the Commissioners of the District of Columbia. Amount aut hor iz ed for pavi ng Michiga n SEC. 6. That the appropriation contained in the District of Avvenhue, capitbitwang Columbia Appropriation Act for the fiscal year ending June 30, Monroe Streets, ma de 19 30, fo r the paving of M ichiga n Aven ue be tween North Capito l available. e. 1272. and Monroe Streets, northeast, is hereby also made available to pay

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McMicken's Executors v. Perin

THIS was an appeal from the Circuit Court of the United States for the eastern district of Louisiana.

The case was twice before this court, and is reported in 18 Howard, 507, and 20 Howard, 133.

The facts of the present case are stated in the opinion of the court.

It was submitted on printed briefs by Mr. Benjamin for the appellants, and by Mr. Day and Mr. Perin for the appellee.

Mr. Benjamin said:

The appellant has died since taking his appeal, and the executors who represent him in this cause have not deemed themselves authorized to abandon the appeal, but have instructed the undersigned to submit it for the decision of the court.

The undersigned counsel therefore respectfully submits the cause for decision, but, on examination of the record, does not deem it his duty to attempt by argument to show the existence of any error in the decree appealed from, confident that if such exist, it will be corrected by the decision of this court.

The arguments on behalf of the appellee need not be reported.

Mr. Justice NELSON delivered the opinion of the court.

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title: McMicken's Executors v. Perin


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1596

 SEVENTIETH CONGRESS. SESS. II. CHs. 682, 683 . 1929 . 1545 any and all expenses for grading of roadways and for removing and replacing water mains and for any and all work incident thereto, including the reconstruction of the boundary fence in good condition of the United States Soldiers' Home on the boundary line of its grounds as relocated on said plat, the removal of the street pave- ments and sidewalks from the area transferred to said home and for bringing the surface of said area to grade with loose earth suitable for growing vege tation ; any trees requir ed to be cut i n making the proposed change to remain the property of the United States Soldiers' Home and to be cut into cord lengths, split, and stacked by the District of Columbia. SEC. 7. That the Commissioners of the District of Columbia are hereby authorized, upon the straightening and shortening of Michigan Avenue as provided by this Act, to do any and all acts which may be necessary to give the Washington Railway and Electric Company such e asement or ri ght of way ov er said Michig an Avenue as is necessary for the proper operation of the railway lines and cars of said company over said avenue as straightened and shortened by the provisions of this Act. SEC. 8 . That the charter or act of incorporation of the Washington Railway and Electric Company is hereby amended so as to provide for the lawful relocation of the tracks of said company as provided herein, said charter or act of incorporation to conform in all respects to the provisions of this Act, and any and all provisions in said charter or act of incorporation in conflict with the provisions of this Act are hereby repealed. Approved, March 4, 1929. Easement given Rail- way Company over Michig an Avenue when straightened, etc. Cha rter of Railw ay Company amended to pro vide for the reloc a- tion of tracks as pro- vided herein. CHAP. 683 .-An Act Relating to declarations of intention in naturalization Marc h 4,14 0.] g [H . ch16440 proceedings. [Public, No. 1011 .] Be it enacted by the Senate and Hawse of Repr esen tati ves of t he United States of America in Congress assembled, That the first sub- Naturalization of division of section 4 of the Act entitled "An Act to establish a 'Declaration of inten- Bureau of Immigration and Naturalization and provide for a uniform ti o0] .34,p.596,amend- rule for the naturalization of aliens throughout the United States," ed. approved June 29, 1906, as amended, is amended to read as follows : U. s. Code, p. 158. approved He shall declare on oath before the clerk of any court Declara tion on oath. authorized by this Act to naturalize aliens, or his authorized deputy, in the district in which such alien resides, two years at least prior Qualifications, etc. to his admission, and after he has reached the age of eighteen years, that it is bona fide his intention to become a citizen of the United States and to reside permanently therein, and that he will, before To reside perma- being admitted to citizenship, renounce forever all allegiance and nently . fidelity to any foreign prince, potentate, State, or sovereignty, and particularly, by name, to the prince, potentate, State, or sovereignty of which the alien may be at the time of admission a citizen or subject. Such declaration shall set forth the name, age, occupation, personal Pe rsona l de scrip tion , description, place of birth, last foreign residence, the date of arrival, etc' the name of the vessel, if any, in which he came to the United States, and the present place of residence in the United States of said alien. No declaration of intention or petition for naturalization shall be to be made outside Decla rations, outbtc. .no of- made outside of the office of the clerk of court ." flee of court. SEC . 2. Section 1 of this Act shall take effect sixty days after its Effective in 60 da ys. en actmen t . A decla ration of inte ntion made be fore the expi ration Provision for erron- eous statement of alle- of such sixty-day period, whether before or after the enactment of ghsnce. this Act, in which appears an erroneous statement of allegiance, shall not be held invalid for such cause if the error was due to a

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text: Talk:McMicken's Executors v. Perin

title: Talk:McMicken's Executors v. Perin


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1597

 1546 SEVENTIETH CONGRESS. SESS. II. CHs. 683-686 . 1929 . change of pol itical bound aries, o r the cre ation of new count ries, or New pet ition to be the transfer of territory from one country to another. Nothing in made . this section shall permit the reinstatement of a petition for naturali- zation di smissed f or such c ause, but in such a case th e benefit s of this section may be obtained by filing a new petition before the expiration Alien veterans. of the period of validity of the declaration of intention. . If residents, entitled, SEC. 3. An alien veteran, as defined in sec. 1 of the Act of May 26, within on years, upon . to 1926 (c . 398, 44 Stat. 654, title 8, sec . 241, U. S . Code Sup . 1), shall, terms, etc ., as if peti- if residing in the United States, be entitled, at any time within two tinned before the ar- mistice. years after the enactment of this Act, to naturalization upon the same terms, conditions, and exemptions which would have been accorded to such alien if he had petitioned before the armistice of the World War, except that such alien shall be required to appear u. S. Code, snpp . i, and file his petition in person and to take the prescribed oath of p. 28. allegiance in open court. Approved, March 4, 1929. Vol.44,p. 654. March 4, 1929 . [H.R. 17122.] [Public, No. 1012 .] Columbia River. Time extended for bridging, at En tia t, Wash. Vol.44,p. 682. Amend ment. Ante, p. 379. Amendme nt. March 4, 1929 . [H. R 17262 .] [Public, No. 1014 .] Canadian River. H. L. Cloud may bri dge , at Francis, Okla. CHAP. 684 .-An Act To extend the times for commencing and completing the construction of a bridge across the Columbia Ri ver at Entiat, W ashington. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the times for commencing and completing the construction of the bridge authorized by the Act of Congress approved June 2, 1926, to be built by Fred H. Furey, his heirs, legal representatives, and assigns, acro ss the Columbia Rive r at Entiat, Washing ton, are hereby extended one and three years, respectively, from the date of approval hereof. SEc. 2. The right to alter, amend, or repeal this Act is hereby expressly reserved. Approved, March 4, 1929. [)H. R .. 17 237 .] CHAP. 685eAn Act To extend the times for commencing and completing [P ubli c, No . 1013 .1 the co nstruction of a bridge across th e Calumet River at or near One h undred and thirtieth Street, Chicago, Cook County, Illinois . Ca lu met River. Be it enacted by the Senate and House of Representatives of the Ti me extended for United States of America in Congress assembled, That the times for bridging, at one hun- dr ed commencing and completing the construction of a bridge across the and thirtieth t, Street, Chicago . 111 . Calumet River at or near One hundred and thirtieth Street, Chicago, Cook County, Illinois, authorized to be built by the city of Chicago by an Act of Congress approved March 21, 1924, as revived and reenacted by an Act of Congress approved March 29, 1928, are hereby ext ended one an d thre e year s, res pectiv ely, fr om Mar ch 29, 1929 . SEc . 2 . The right to alter, amend, or repeal this Act is hereby exp ressly reser ved. Approved, March 4, 1929. CHAP. 686 .-An Act Authorizing H. L. Cloud, his heirs, legal representatives, and assigns, to construct, maintain, and operate a bridge across the Canadian River, at or near Francis, Oklahoma. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in order to prom ote in tersta te com merce, impro ve the postal servi ce, an d prov ide for military and other purposes, H. L. Cloud, his successors and as- signs or legal representatives, be, and is hereby, authorized to con-

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McMicken's Executors v. Perin/Opinion of the Court

This is an appeal from a decree of the Circuit Court of the United States for the eastern district of Louisiana.

The bill filed by McMicken in the court below is in the nature of a bill of review, praying relief from a decree obtained against him by Perin in a previous suit by means of fraud and imposition.

The suit by Perin charged McMicken with holding, in trust for his use, a valuable sugar plantation, situate in the parish of East Baton Rouge, on the Mississippi river, in the State of Louisiana; and sought a discharge of the trust and a conveyance of the title to the complainant.

The bill of review sets forth as the ground of fraud in the decree, that after the commencement of the former suit and service of the subpoena on McMicken, in an interview with Perin on the subject of the suit, he agreed to discontinue it, and prosecute the same no futher; upon which understanding the defendant acted, and discharged the solicitor retained to defend it, and omitted altogether any defence; and that in violation of the agreement and in fraud of the rights of the defendant, he, Perin, proceeded with the suit in the absence and without the knowledge of the defendant, obtaining the decree in question by default, declaring the trust, and directing a conveyance of the plantation.

The bill of review further sets forth that the advances made by the complainant in the purchase of the property, and the liabilities incurred by way of raising encumbrances on the same in securing the title, far exceeded the sum stated by Perin in his bill, and which he proposed to reimburse and satisfy, and of all which he had full knowledge, but which he fraudulently suppressed and excluded from the decree, which the complainant is justly entitled to have allowed upon setting aside the purchase and declaring the trust for the benefit of Perin.

The defendant, in his answer to the bill of review, denies specifically the fraud charged therein against him; denies that he agreed to give up the suit, and not further prosecute the same, or that he gave any assurances to McMicken to that effect, or which were calculated to mislead or induce him to withdraw from the defence, or that any such understanding existed between the parties; but, on the contrary, since the filing of his bill he has, at all times, insisted upon his rights as set forth therein, and upon the prosecution of his claim to the property.

The defendant also denies that the omission to set forth in his bill any other sums than those allowed in the report of the master, and which entered into the decree, were with a view to an ex parte proceeding in the suit as charged by McMicken, and denies all fraud or concealment in respect to these accounts.

The answer of the defendant is directly responsive to the charges in the bill, and relates to facts within his knowledge, and, upon well-settled principles of pleading, must be taken as presenting the true state of the case, unless overcome by the proofs. The complainant, in view of this rule, has examined witnesses in support of the allegations, but they have wholly failed to sustain them.

The bill of Perin against McMicken to enforce the trust was filed in February, 1851. The subpoena was served personally in November, 1852. McMicken resided in the State of Ohio, and the service in the suit could be made only in the State of Louisiana. The decree pro confesso was entered in April, 1853, and the final decree in June, 1854. The suit seems not to have been hurried with any unusual speed to its final determination.

In February, 1855, a petition was presented to the court containing, substantially, the facts set forth afterwards in the bill of review, on behalf of McMicken, to set aside the decree, and to permit him to come in and defend, which, after hearing, was denied. Whereupon an appeal was taken to this court from the decree in the suit, and also from the order refusing to set aside the decree, and which were affirmed in December term, 1855, (18 How., 507; 20 ib., 133.)

The present bill was filed for a review of the decree and order thus affirmed by this court in January, 1857. The case was heard on pleadings and proofs, and a decree entered dismissing the bill in November of the same year, and is now before us on appeal.

The bill was dismissed upon the ground that the excuse set up by the complainant, to wit, the fraud and imposition of Perin, for not appearing and defending the former suit, was fully and completely denied in the answer, and wholly unsupported by the proofs. The failure, therefore, of the defendant to appear and defend, and his rights in that suit, for aught that was shown, was attributable to his own neglect and inattention.

The allegations upon which relief in the bill rested, and upon which alone a rehearing could be granted in the case, consistent with the established practice of a court of chancery, were unsustained.

This is familiar doctrine, and is decisive of the case.

The decree of the court below affirmed.


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1598

 SEVENTIETH C ONGRESS. SESS. II. CH. 686. 1929 . 1547 struct, maintain, and operate a bridge and approaches thereto across the Canadian River, at a point suitable to the interests of navigation, at or near Franc is, Pontotoc County, Oklaho ma, in accord ance with the provisions of the Act entitled "An Act to regulate the construc- tion of bridges over navigable waters," approved March 23, 1906, and subject to the conditions and limitations contained in this Act. SEC. 2 . After the completion of such bridge, as determined by the Secretary of War, either the State of Oklahoma, any political sub- division thereof within or adjoining which any part of such bridge is located, or any two or more of them jointly, may at any time acquire and take ove r al l ri ght, tit le, and inte rest in such bri dge and its approaches, and any interest in real property necessary therefor, by purchase or by condemnation or expropriation, in accordance with the laws of such State governing the acquisition of private property for public purposes by condemnation or expropriation. If any time after the expiration of five years after the completion of such bridge the same is acqu ired by conde mnation or exp ropriation, t he amount of damages or compensation to be allowed shall not include good will, going value, or prospective revenues or profits, but shall be limited to the sum of (1) the actual cost of constructing such bridge and its approaches, less a reasonable deduction for actual depreciation in value ; (2) the actual cost of acquiring such interests in real prop- erty ; (3) actual financing and promotion cost, not to exceed 10 per centum of the sum of the cost of constructing the bridge and its ap- proaches and acquiring such interests in real property ; and (4) actual expenditures for necessary improvements. Snc. 3 . If such bridge shall at any time be taken over or acquired by the State of Oklahoma, or by any municipality or other political subdivision or public agency thereof, under the provisions of section 2 of this Act, and if the tolls are thereafter charged for the use thereof, the rates of toll shall be so adjusted as to provide a fund su fficie nt to p ay for the re asonabl e cost of mai ntainin g, repa iring, and operating the bridge and its approaches under economical manage- ment and to provide a sinking fund sufficient to amortize the amount paid therefor, including reasonable interest and financing cost, as soon as possible under reasonable charges but within a period of twenty years from the date of acquiring the same. After a sinking fund su fficien t for s uch am ortizat ion sha ll hav e been so prov ided, such bridge shall thereafter be maintained and operated free of tolls, or the rates of toll shall thereafter be so adjusted as to provide a fund of not to exceed the amount n ecessary for t he proper mai ntenance, repair, and operation of the bridge and its approaches under eco- nomical management. An accurate record of the amount paid for acquiring the bridge and its approaches, the actual expenditures for maintaining, repairing, and operating the same, and of the daily tolls collected, shall be kept and shall be available for the informa- tion of all persons interested. SEc. 4. That H. L. Cloud, or his heirs, legal representatives, and assigns, shall , withi n nine ty days after the co mpletio n of su ch bri dge, file with the Secretary of War and with the highway department of the State of Oklahoma a sworn itemized statement showing the actual original cost of constructing the bridge and its approaches, the actual cost of acquiring any interest in real property necessary therefor, and the actual financing and promotion costs. The Secretary of War may, and at the request of the highway department of the State of Oklahoma shall, at any time within three years after the comple- tion of such bridge investigate such costs alleged in the statement of costs so filed, and shall make a finding of the actual and reasonable costs of constructing, financing, and promoting the bridge ; for the 54835 °-29-pT 1-101 Construction. Vol.34, p.84. Acquisition author- i zed, afte r com pleti on, by Oklahoma, etc. Condemnation pro- ceedings. Compensation if ac- qui red by cond em- nat ion. Limit atio ns. Tolls under State, etc., operation . Rates applied to op- era tio n, sinking fund, etc. Maintenance as free bridge, etc ., after amor- tizing costs. Record of expendi- tures and rece ipts. Sworn statement of construction costs, etc ., to be filed, after com- pletion. Examination by Seo- retary of War .

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text: Talk:McMicken's Executors v. Perin/Opinion of the Court


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1599

 1548 Findings of Secretary conclusive. Right to sell, etc ., conferred. Constru ction c on- tracts to be let to low- est bidder. Adve rtis ing, etc. Contract vo id for violations. Amendment. March 4, 1929. [S. 5730 .] [Public, No. 1015 .] Public lands . Desert land entries . Entryman, if no pros- pect of s ecur ing w ater, on paying 50 cents an acre, and $1 .50 in one year, may have patent issued to him. Vol . 38, p. 1161, amended. Vol. 40, p. 458. Proviso. Entry canceled if final payment not made. SEVENTIETH CONGRESS. SEss. II. CHs. 686, 687 . 1929 . purpose of such investigation the said H. L. Cloud, his heirs, legal rep resent atives, and as signs, shall make av ailabl e all o f its r ecords in conne ction with th e construction, financing, and promotion of the bridge, which shall be conclusive for the purposes mentioned in sec- tion 2 of this Act, subject only to review in a court of equity for fraud or gross mistake. SEC. 5. The right to sell, assign, transfer, and mortgage all the rights, powers, and privileges conferred by this Act is hereby granted to Ii. L. Cloud, his heirs, legal representatives, and assigns ; and any corporation to which or any person to whom such rights, powers, and privileges may be sold, assigned, or transferred, or who shall acquire the same by mortgage foreclosure or otherwise, is hereby authorized and empowered to exercise the same as fully as though conferred herein directly upon such corporation or person. SEC. 6 . All contracts made in connection with the construction of the bridge authorized by this Act and which involve the expenditure of more than $5,000 shall be let by competitive bidding. Such con- tracts shall be advertised for a reasonable time in some newspaper of gene ral circulati on published i n the State i n which the br idge is located and in the vicinity thereof ; sealed bids shall be required and the contracts shall be awarded to the lowest responsible bidder. Verified copies or abstracts of all bids received and of the bid or bids accepte d shall be pr omptly furnish ed to the hig hway departmen t of the State in which such bridge is located. A failure to comply in good faith with the provisions of this section shall render null and void an y contract ma de in violatio n thereof, an d the Secretar y of War may, after hearings, order the suspension of all work upon such bridge until the provisions of this section shall have been fully com- plied with. SEC. 7. The right to alter, amend, or repeal this Act is hereby expressly reserved. Approv ed, Ma rch 4, 1929. CHAP. 687 .-An Act To supplement the last three paragraphs of section 5 of the Act of March 4, 1915 (Thirty-eighth Statutes, page 1161), as amended by the Act of March 21, 1918 (Fortieth Statutes, page 458). Be it enacted by the Senate and Home o f Representatives o f the United States of America in Congress assembled, That where it shall be made to appear to the satisfaction of the Secretary of the Interior with refe rence to any l awful pending desert-land entry made pri or to July 1, 1922, under which the entryman or his duly qualified assignee under an assignment made prior to the date of this Act has effect reclamation of the land, that there is no reasonable prospect that he would be able to secure water sufficient to effect reclama- tion of the irrigable land in his entry or any legal subdivision thereof, the Secretary of the Interior may, in his discretion, allow such entryman or assignee ninety days from notice within which to pay to the register of the United States Land Office 50 cents an acre for the land embraced in the entry -and to file an election to perfect title to the entry under the provisions of this Act, and thereafter within one year f rom the date of the filing of suc h elect ion to pay to the re gister the additional amount of $1 .50 an acre, which shall entitle him to a patent for the land : Provided, That in case the final payment be not made within the time prescribed the entry shall be canceled and all money theretofore paid shall be forfeited, Approv ed, Ma rch 4, 1929.
 * in good faith expended the sum of $3 per acre in the attempt to

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1600

 Be it enacted by the Senate and House o f Representatives o f the United States of America in Congress assembled, That the Com- District o f Columbia. Sites for two bigh- missioners of the District of Columbia be, and they are hereby, temper ature comb us- authorized to acquire, by purchase at such price or prices as in tible refuse incinerators > to be acquired. their judgment, they may deem reasonable and fair, or, in the dis- cretion of the commissioners, by condemnation, in accordance with the provisions of Chapter XV of the Code of Law for the District of Columbia, under a proceeding or proceedings in rem instituted in the Supreme Court of the District of Columbia, two suitable and properly located sites in the District of Columbia, one in the south- Location. eastern section not exceeding one hundred thousand square feet in area, and one in Georgetown, not exceeding forty-nine thousand square feet in area : Provided, ro That the location of said sites shall Appro a. val of sites. be appro ved by th e Nat iona l Cap ital Park and Plann ing C ommi ssion before purchase or the institution of proceedings for condemna- tion thereof : Provided That if the said sites or any part thereof Immedi ate pesses - sion if site condemned . be condemned the said commissioners shall be entitled to enter immediately into possession of any property for which an award shall have been made by paying the amount of such award into the registry of the Supreme Court of the District of Columbia : Use of public bigh- Pro vided fur ther, That authority is hereby granted to occupy in ways and alleys. addition to the site to be acquired in the southeastern section, such public highways and alleys or parts of public highways and alleys as abut or fall w ithin sai d site, b ut the o wners of abutting property shall not be denied the use of such highways or parts of highways for ingress and egress. SEc. 2 . That the said commissioners are authorized to erect upon r n efu se inn igh - temperature each of said sites a modern, high-temperature refuse incinerator and etc ., to be erected on the necessary equipment for its efficient operation, the combined each site, capa city o f such incin erator s to b e suffi cient to con sume t he ent ire prod uction of co mbusti ble re fuse, includi ng str eet sw eeping s, in the Grading sites, storage District of Columbia ; and the said commissioners are further buildings, etc ., author- authorized to do such grading and fencing of the sites as may be ic ed. necessary, and to construct buildings for the storage of equipment. Pub lic notic e of date SEc. 3 . That the said commissioners shall give reasonable public requiring delivery of all notice thereof and shall fix a date after which all combustible refuse refuse to incinerators, collected by public or private agencies in the District of Columbia shall be de livere d at t he inc inerat ors her ein pr ovided for, for di s- posal, except that hotels, apartment houses, business houses, or resi- Exception' dences may dispose of their own refuse in their own incinerators Provided, That such incinerators are inspected and approved for np ios. etc ., of use by the proper agency of the District of Columbia ; and after private incinerators. such date it shall be unlawful for any person, firm, company, or cor- lawful r disposal un- such to dispose of any combustible refuse in any other manner or at any other place than that prescribed by the said commissioners Provided, however, That nothing in this Act shall prohibit or material f salvageable prevent the sale of salvageable material by the owners thereof or by the Commissioners of the District of Columbia. The said com- Enforcement regula- missioners are hereby empowered and authorized to make and enforce tion s au thori zed' such regulations as they may deem necessary and proper to carry out the purposes of this Act. SEc. 4. That from and after the date when the incinerators herein oth er Disposal than than her refuse ein pre- authorized to be constructed shall be in operation it shall be unlaw- scribed, unlawful. ful for any person, firm, company, or corporation to burn or in any way dispose of combustible refuse in any manner or at any place other than that prescribed by the said commissioners, except as SEVENTIETH CONGRESS. SEss. II. CH. 688. 1929. 1549 CHAP. 688.-An Act Authorizing the acquisition of land in the District of March 4,1920. Columbia and the construc tion thereon of two modern, hig h-temperature in cin- [S .55 98 .] erators for the destruction of combustibl e refuse, and for other purposes. [Public, No. 1016 .1

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United States v. Executors of Hartnell

THIS was an appeal from the District Court of the United States for the northern district of California.

The facts are stated in the opinion of the court.

It was argued by Mr. Stanton for the United States, and by Mr. Benham for the appellees.

Mr. Benham made the following points:

I. The court will not go behind the grant for the Cosumnes to entertain the question how much land Hartnell had received, because the recitals of the grant show that the law was satisfied. The grant is a judgment upon all questions of law and fact involved in the transaction which it consummated. The Mexicans always considered the granting of lands an adjudication; they spoke of them, when granted, habitually as terrenos adjudicados.

II. But if the court do entertain the question, we say:

1. The maximum restriction found in the twelfth section of the colonization law of 1824 has only the effect of forbidding the granting of more than eleven leagues in one grant. Any other construction is discountenanced by the policy and objects of that law; it could make no difference how many grants or how much land one man had, if he occupied and cultivated them.

2. The maximum restriction did not curtail Micheltorena's power. That power was extraordinary, and extended beyond what the law of 1824 gave; it applied expressly to colonization, and was coextensive with that of Santa Anna, which was de facto if not de jure dictatorial.

If Santa Anna's power was not dictatorial, he at least thought so, and Micheltorena thought so, and Micheltorena thought himself clothed with it, and exercised it to dispense with the maximum restriction. Hartnell thought so too, and gave the consideration of the grant, occupation and improvement. When the official held out that he possessed the power to grant, this court has confirmed, though he had no such power.

3. The estate was only voidable at the worst. It cannot be avoided in this proceeding. Every right or title unimpaired at date of cession, is protected.

Act 3d March, 1851, secs. 8, 11.

4. The estate is not voidable now in any proceeding. The law by which it could have been avoided is abrogated. It was political in its nature, and was abrogated upon the cession

5. The grant must be confirmed for all the land. It is a patent. It can only be contradicted by matter of record. There is no matter of record which has that effect. The non-approval by the Departmental Assembly, as has been shown, though it may be regarded as matter of records, is not effectual to contradict it, because that act is not competent to divest the estate.

The other patent, (for Todos Santos y San Antonio,) which disclosed the fact that Hartnell had already received a large quantity of land, cannot be entertained as evidence for that purpose. It is dehors the patent for the Cosumnes land. If our patent for Cosumnes granted more than eleven leagues, then the illegality might be considered; but being legal on its face, it cannot be invalidated but by judgment in denouncement or office found. Our allegation that we have had more land has no effect, for the question is not involved in the case.

4 Bibb, p. 330.

7 B. Monroe, p. 81.

6. The grant must be confirmed, because the court cannot know whether the grant for Todos Santos y San Antonio will be confirmed or not. The decree of the District Court dismissed so much of the appeal as affected Todos Santos y San Antonio, as has been stated; and if prosecuted, if had to be done in the southern district of California. Whether any appeal has been taken from the land commission's decree relative to that grant does not appear, nor can appear, as no new evidence can be taken here.

7. The maximum restriction did not affect the validity of the grant. On the contrary, the grant was good in every part. No invalidity could attach to the grant as affecting any particular portion of the land, until some proceeding, diminishing the quantity, and segregating the portion withdrawn from the residue, was had.

8. The maximum restriction did not apply to Mexican citizens.

Mr. Justice CATRON delivered the opinion of the court.

title: United States v. Executors of Hartnell


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1601

 1550 SEVENTIETH C ONGRESS. SEss. II. Cns. 688.689. 1929. Penalty for violation. Truck s, e quip ment , etc., to be purchased, etc. Sum for s ites, bui ld- ings, etc ., authorized. Plant now in use to be abandoned. hereinbefore designated. A violation of the provisions of this Act shall be a misdemeanor ; and, upon conviction thereof, the person, fir m, company, or corporation so ch arg ed shall be fin ed not mor e than $100 for each and every offense, or confined in the District of Colu mbia jail for a perio d not excee ding sixty days, or both, in the discretion of the courts. SEC. 5. That, in order to di spose of c ombust ible refuse in the manner provided by t his A ct, the commissioners are authorized to purchase motor trucks and trailers and other means of transporta- tion, t o instal l additi onal equ ipment, building s, and m achinery, and to employ personal services and labor. SEC. 6. That a sum not exceed ing $ 850,0 00 is hereb y aut horize d to be appropriated, in like manner as other appropriations, for the expenses of the District of Columbia, for sites, buildings, equip- ment, and other construction work authorized by this Act, of which amount $25,000 or so much thereof as may be necessary may be exp en ded for the employment of one or mo re ex per ts for engineer- ing for preparation of plans and specifications ; and, upon completion of the incinerators herein provided for, the said commissioners shall aba nd on the use of the leased pla nt at Montello Avenue and Mount Olivet Road northeast. Approved, March 4, 1929. March 4,1929. [s. 5127 .]	CHAP. 689. - An Act To carry into effect the twelfth article of the treaty [Public,No. 1017.] between the Unit ed States and th e Loyal Shawnee I ndians proclaime d Oct o- ber 14, 1868. Be it enacted by the Senate and House o f Representatives o f the Loyal Shawnee In- United States of America in Congress assembled, That there is hereby dians. Payment directed of authorized t o be appropriated, out of any mon ey in the Treasu ry not award for war losses of, under treaty of 1868. otherwise appropriated, the sum of $109,746 .25, and the Secretary of the Tr easur y be, and he is hereb y, aut horiz ed an d dire cted to pay said sum to the In dia ns of the Loyal Shawnee Tribe, their heirs, or legal representatives, in accordance with the official findings, arbitr ation awar d, and repo rt of the Secretary of the Inter ior t o Vol. 15, 0 .516. Congress made in pursuance of the twelfth article of the treaty bet we en the United States and the Loyal Shawnee Indians, pr o- claimed October 14, 1868 (Fifteenth Statutes at Large, page 513) which claims are similar to but not included with thos e of the Ante, p. 13. Shawnee Indians for whom an appropriation was made by Act of December 22, 1 927 (Public, Numbered 2, Seventieth Congress, first Provisos . Allowance to attorsession) : Provided, That there shall be paid to the duly authorized neys. attorneys of said respe ctive Loyal Shawnee Indian s, their duly proven and established heirs, or their attorneys in fact, 5 per centum of the amount due on the respective claims of said Indians against the Government, when said I ndians' right to receive pa yment is Receipt required. established : And provided further, That befo re payment of the amount due said Loyal Shawnee Indian or his heirs or assigns or to their duly authorized attorneys, receipt shall be executed by or on behalf of said Indian claimants, or their legal representative, acknowledging payment of their claim against the United States, whi ch receipt shall be approved by the Commissioner of Indian Affa irs. Co mmittee of tribe A committee of f ive male adult mem be rs of the Loyal Shawnee to execute releases for benefi ciaries without Tribe, to be sel ected under dire ction of the Com missioner of Ind ian legal representatives . Affairs, with its headquarters at Vinita, Oklahoma, shall execute a release on behalf of all beneficiaries having no legal representatives. Approved, Marc h 4, 1929.

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 SEVENTIETH CONGRESS. SESS. II. CH. 690. 1929. 1551 CHAP. 690. - An Act Making it a felony with penalty for certain aliens to enter the United States of America under certain conditions in violation of law.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) if any alien has been arrested and deported in pursuance of law, he shall be excluded from admission to the United States whether such deportation to ok place before or after the enactment of this Act, and if he enters or attempts to enter the United States after the expiration of sixty days after the enactment of this Act, he shall be guilty of a felony and upon conviction thereof shall, unless a different penalty is otherwise expressly provided by law, be punished by imprisonment for not more than two years or by a fine of not more than $1,000, or by both such fine and imprisonment.

(b) For the purposes of this section any alien ordered deported (whether before or after the enactment of this Act) who has left the United States shall be considered to have been deported in pursuance of law, irrespective of the source from which the expenses of his transportation were defrayed or of the place to which he departed.

(c) An alien subject to exclusion from admission to the United States under this section who is employed upon a vessel arriving in the United States shall not be entitled to any of the landing privileges allowed by law to seamen.

(d) So much of section 3 of the Immigration Act of 1917 [U.S.C. Title 8, §136(j)] as reads as follows: "persons who have been deported under any of the provisions of this Act, and who may again seek admission within one year from the date of such deportation unless prior to their reembarkation at a foreign port or their attempt to be admitted from foreign contiguous territory the Secretary of Labor shall have consented to their reapplying for admission" is amended to read as follows: "persons who have been excluded from admission and deported in pursuance of law, and who may again seek admission within one year from the date of such deportation, unless prior to their reembarkation at a place outside the United States or their attempt to be admitted from foreign contiguous territory the Secretary of Labor has consented to their reapplying for admission".

(e) So much of section 18 of the Immigration Act of 1917 [U.S.C. Title 8, §154] as reads as follows: "or knowingly to bring to the United States at any time within one year from the date of deportation any alien rejected or arrested and deported under any provision of this Act, unless prior to reembarkation the Secretary of Labor has consented that such alien shall reapply for admission, as required by section 3 hereof" is amended to read as follows: "or knowingly to bring to the United States any alien excluded or arrested and deported under any provision of law until such time as such alien may be lawfully entitled to reapply for admission to the United States". The amendment made by this subsection shall take effect on the expiration of sixty days after the enactment of this Act, but the provision amended shall remain in force for the collection of any fine incurred before the effective date of such amendment. SEC. 2. Any alien who hereafter enters the United States at any legal entry time or place other than as designated by immigration officials or eludes examination or inspection by immigration officials, or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall be guilty of a misdemeanor and, upon conviction, shall be punished by imprisonment for not more than one year or by a fine of not more than $1,000, or by both such fine and imprisonment.


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United States v. Executors of Hartnell/Opinion of the Court

Hartnell got a grant from Governor Alvarado, dated June 28, 1841, for a body of land lying in Lower California. The quantity is not specified in the grant, the out-boundaries only being designated.

In November, 1844, he obtained another grant for eleven square leagues, lying in Upper California. Both claims were duly set forth in a petition seeking confirmation, before the board of land commissioners, and they were confirmed, with modifications the lower grant to the extent of five leagues, and the upper for six leagues.

From this decree the parties appealed, and brought their cause to the District Court, held at San Francisco. That court, sitting in the upper district, had no jurisdiction to reexamine the judgment of the board, as respected the five leagues confirmed in the district of Lower California; and as to that tract, the appeal was dismissed, and therefore that title stands confirmed.

There being cross appeals, the question arises here, whether the upper grant should be confirmed for six leagues or for eleven-the grant of the Governor calling for the latter quantity.

The District Court adjudged six leagues as the proper quantity; and on this single point the cause comes before us-both parties being satisfied with the decree below in all other respects.

The narrow question is, had the Governor of California power, in 1844, to grant gratuitously, for the purposes of tillage, inhabitancy, and pasturage, more than eleven leagues of land to any one person? Section 12 of the law of 1824 provides, that it shall not be permitted to unite in one hand, as property, more than one league of irrigable land, four leagues of farming land, not irrigable, and six for stock raising.

Both titles of Hartnell were brought before the Departmental Assembly. That body held the law to be, that the Governor could not 'unite in the same hand' more than eleven leagues, although it might be in different tracts; and so reported to him.

The public domain was the property of the Mexican nation, and those who were enabled to displace that title, separate portions of it from the public lands, and vest such portions into individual proprietors by perfected titles, could only do so in the exercise of sovereign power, because the public title was a sovereign right; and agents who assumed to exercise this authority must show that they represented the nation. The Governors of California do not show that they did represent the nation, so as to conclusively bind it; to have this effect, the Governor's grant must have the concurrence of the Departmental deputation. It follows, that the Assembly was the controlling power, and could reform or nullify the Governor's grant; and having reformed it to the extent of five leagues in the case before us, the claimant came in under the treaty of peace with Mexico, having no interest in these five leagues. 8 How., 303, 304.

We have no doubt that the Departmental Assembly, the board of commissioners, and the District Court, construed the law of 1824 (section 12) correctly, and order the decree below to be affirmed in all its parts.


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1603

 1552 SEVENTIETH CONGRESS. SEss. II. Cfis. 690-692 . 1929 . Ali en under sen tence SEC. 3. An alien sentenced to imprisonment shall not be deported deported, after termi- nat ion of imprison- under any provision of law until after the termination of the ment. imprisonment. For the purposes of this section the imprisonment shall be considered as terminated upon the release of the alien from confinement, whether or not he is subject to rearrest or further con- finement in respect of the same offense. con victions to be no ti f SEC. 4. Upon the final conviction of any alien of any offense under fled to secretary of this Act in any court of record it shall be the duty of the clerk of the Lab or' court to notify the Secretary of Labor, giving the name of the alien convicted, the nature of the offense of which convicted, the sentence imposed, and, if imprisoned, the place of imprisonment, and, if known, the place of birth of such alien, his nationality, and the time when and place where he ent ered the Unite d States. Terms in Im mig ra- SEC. 5. Terms defined in the Immigration Act of 1924 shall, when tion Act applicable to this Act. used in this A ct, have the meaning assign ed to such te rms in that Act. Approved, March 4, 1929. March 4, 1929 . CHAP. 691 .-An Act To extend the times for commencing and completing [s .4721 .] the construct ion of a bri dge across t he Potomac Ri ver at or ne ar the Great Falls, [Publ ic, No. 10 19 .] and to authorize the use of certain Government land. Be it enacted by the Senate and House o f Representatives o f the Time extended for P Time tontac River. United States of America in Congress assembled, That the time for bridging, at the Great commencing and the time for completing the construction of a bridge Falls. Ante, p . 442 . authorized by the Act of Congress approved April 21, 1928, to be built across t he Potomac Ri ver by the Gre at Falls Brid ge Company, entitled "An Act authorizing the Great Falls Bridge Company, its successors and assigns, to construct, maintain, and operate a bridge across the Potomac River at or near the Great Falls," are hereby extended one and three years, respectively, from the date of the approval hereof. Use of Govern ment land for SEC. 2. The Great Falls Bridge Company, its successors and sit e, author- ized « assigns, is hereby authorized, by and with the approval of the Secre- tary of War, to use and occupy such Government-owned land located at or near Great Falls as is necessary to construct, maintain, and operate said bridge and its approaches, and as may be approved by the National Capital Park and Planning Commission, upon such terms and conditions as the Secretary of War may deem equitable Amendment. and fair to the public. SEC. 3. That the right to alter, amend, or repeal this Act is hereby expressly reserved. Approved, March 4, 1929. March 4, 1929. [S. 4566 .]	CHAP. 692.-An Act Authorizing the New York Development Association, [Public, No. 1020 .] Inc., its successors and assigns, to construct, maintain, and operate a bridge across the Saint Lawrence River near Alexandria Bay, New York. Be it e nacted by the Senate and Ho use of Repres entatives of t he saint Law re nce Ri ver United States of America in Congress assembled, That in order to. New Yor k Develop- facilitate international commerce, improve the postal service, and ment Association, Inc ., may bridge, near Ales- provide for military and other purposes, the New York Develop- andria Bay, N. Y. ment Association, Inc ., a corporation organized under and by virtue of the membership corporation law of the State of New York, having its office and principal place of business at Watertown, New York, its successors and assigns, be, and is hereby, authorized to Location of bridges construct, maintain, and operate a bridge and approaches thereto, in New York. across the easterly channel of the Saint Lawrence River at a point

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 SEVENTIETH CONGRESS. SESs. II. Cxs. 692, 693. 1929 . 1553 suitable to the interests of navigation at or near Collins Landing, in the town of Orl eans, Jeffer son Co unty, N ew Yor k, to some s uitabl e and co nvenie nt poi nt on Welles ley or Wells Island, and also a bridg e and approaches thereto from the westerly side of Wellesley or Wells Isla nd to Hill Isla nd, somet imes know n as LaRue Isl and, and a lso a bridge from said Hill Island across or over the westerly or Canadian channel of the Saint Lawrence River to some suitable or To Province of On- convenient point between Brockville and Gananoque, in the Province tarlo, Canada. of Ontario, Dominion of Canada, so far as the United States has jurisdiction over the waters of said Saint Lawrence River, in accord- ance with the provisions of the Act entitled "An Act to regulate the construction of bridges over navigable waters," approved March 23, Approval of Canada 1906, and subject to the approval of the proper authorities in the required. Dominion of Canada. SEC. 2 . That the New York Development Association, Inc., its successors and assigns, shall commence the construction of said bridge within two years and shall complete the construction thereof within five years after the passage and approval of this Act. SEC. 3. That there is hereby conferred upon the New York Develop- Right to acquire real estate, etc ., in New ment Association, Inc ., its successors and assigns, all such rights York, for location, ap- and powers to enter upon lands and to acquire, condemn, occupy, proaches, etc. possess, and use real estate and other property in the State of New York needed for the location, construction, operation, and mainte- nance o f such bridg e and its ap proach es as a re pos sessed by ra ilroad corporations for railroad purposes, or by bridge corporations for bridge purposes in the State of New York, upon making just com- Condemnation pro. pensation therefor to be ascertained and pa id according to the ceedings. laws of such State, and the proceedings therefor shall be the same as in the condemnation and expropriation of property in such State. SEC. 4 . That the said New York Development Association, Inc ., its successors and assigns, is hereby authorized to fix and charge tolls for transit over such bridge, and in accordance with any laws of New York applicable thereto, and the rates of tolls so fixed shall b e the legal rates until change d by th e Secr etary of War under the authority contained in the Act of March 23, 1906. SEC. 5 . That the right to sell, assign, transfer, and mortgage all con erred to sell, etc ., the rights, powers, and privileges conferred by this Act, is hereby granted to the New York Development Association, Inc ., its suc- cessors and assigns, and any corporation to which or any person to whom such rights, powers, and privileges may be sold, assigned, or transferred, or who shall acquire the same by mortgage foreclosure, or otherwise, is hereby authorized and empowered to exercise the same as fully as though conferred herein directly upon such corpora- tion or person. SEC. 6 . That the right to alter, amend, or repeal this Act is hereby exp ressly reser ved. Approved, March 4, 1929. CHAP. 693 .-An Act To establish the Teton National Park in the State of So uth D akota, and for other purp oses. Be it enacted by the Senate and House of Representatives of t1e United States o f America in Congress assembled, That when a quantum, satisfactory to the Secretary of the Interior, of the pri- vat ely ow ned la nds ly ing wi thin t he are a herei nafter descr ibed s hall have been acquired and transferred to the United States for monu- ment purposes, without expense to the Federal Treasury, such areas shall be, and are hereby, dedicated and set apart as a national monu- ment for the benefit and enjoyment of the people, under the name Construction. Vol.34,p.84. Time of construction. Tolls authorized. Vol.34, p.85. Am endment. March 4,1929. [S. 4385.) [Public, No . 1021.1 Badlands Nat io nal Monument, S. Dak. When privately owned lands within desc ribed area have been acquired, the land to be set apart as

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 1554 SEVENTIETH CONGRESS. SESS. II. Cu. 693. 1929 . Proviso . Highways to be con- structed by South Da- kota. Areas described. of the Badlands National Monument ProvMed, That the State of South Dakota shall have first constructed the highways hereinafter described. SEC. 2 . That the areas to be included in said Badland s National Mon ument are sit uated in the State of South Dakota and l ie within the boundaries particularly described as follows : Beginning at the northeast corner section 13, township 3 south, range 18 east, Black Hills meridian ; thence west one-fourth mile ; thence south one mile ; thence west one-fourth mile ; thence south one-fourth mile ; thence west one mile ; thence south one-fourth mile ; thence west one-fourth mile ; thence north one mile ; thence west one and one-fourth miles ; thence north one-half mile ; thence west three miles, to the northwest corner section 18, township 3 south, range 18 east, Black Hills meridian. Thence north one-fourth mile ; thence west one-half mile ; thence north one-fourth mile ; thence west three-fourths mile ; thence south one-fourth mile ; thence west one-fourth mile ; thence north one-fourth m il e ; thence west one-fourt h mile ; thence nor th one-fourth mile ; thence west three-fourths mile ; thence south one-fourth mile ; thence west one-half mile ; thence south one-half mile ; thence west one mile ; thence north one-fourth mile ; thence west one-fourth mile ; thence north one-fourth mile ; thence west one and one-fourth miles ; thence north one-fourth mile ; thence west one-fourth mile ; thence north three-fourths mile ; thence west one and one-fourth miles ; thence nor th one-half m ile, to the n ortheast corne r section 2, township 3 south, range 16 east, Black Hills meridian. Thence west one-half mile ; thence north one mile ; thence west one-fourth mile ; thence north one-half mile ; thence west three- fourths mile ; thence north one-half mile ; thence west one-half mile ; thence north two miles ; thence west eight miles ; thence south one-half mile ; thence west one mile ; thence north one-half mile, to the northeast corner section 13, township 2 south, range 14 east, Black Hills meridian. Thence west one mile ; thence south one mile ; thence east one-half mile ; thence south one-half mile ; thence west one-half mile ; thence south two and one-half miles ; thence east one and one-fourth miles ; thence south one mile ; thence east three-fourths mile, to the north- east corner section 7, township 3 south, range 15 east, Black Hills meridian. Thence south one-fourth mile ; thence east one-fourth mile ; thence south one-half mile ; thence west one-fourth mile ; thence south one- fourth mile ; thence west one mile, thence south one and three-fourths miles ; thence east one mile ; thence north three-fourths mile ; thence east two miles ; thence north one-half mile ; thence east three-fourths mile ; thence north one-fourth mile ; thence east one-half mile ; thence north three-fourths mile ; thence west one-fourth mile ; thence north three-fourths mile ; thence west one-fourth mile ; thence north one- fourth mile ; thence west one-fourth mile ; thence north one-fourth mile ; thence east one-fourth mile ; thence north one-half mile ; thence east one mile ; thence south one-fourth mile ; thence east one and three-fourths miles ; thence north one-half mile ; thence west one-half mile ; thence north one-half mile, to the northwest corner section 31, township 2 south, range 16 east, Black Hills meridian. Thence east one-half mile ; thence south one-fourth mile ; thence east one mile ; thence south one-fourth mile ; thence east one and three-fourths miles ; thence south three-fourths mile ; thence east three-fourths mile ; thence south three-fourths mile ; thence east one-half mile ; thence south one-fourth mile ; thence east one-fourth mile ; thence south one-fourth mile ; thence east one-fourth mile ; thence south one-fourth mile ; thence east one-fourth mile ; th ence

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text:
Executors of De Yturbide v. United States

THIS was an appeal from the District Court of the United States for the northern district of California.

The facts of the case are stated in the opinion of the court.

It was argued by Mr. Blair for the appellants, and by Mr. Stanton for the United States.

Mr. Blair thus noticed the point upon which the case turned:

1. The District Court dismissed the appeal, on the ground that its own order, allowing the notice of appeal to be filed nunc pro tunc, was void.

I contend that this order was not invalid. The language of the statute, that 'the appeal shall be considered as dismissed' in case the notice is not filed as required, is directory merely. It prescribes a rule as to the time of filing a paper in the progress of a cause; and such rules are directory merely, and are never construed to prohibit the filing of the papers after the time limited, and before the adverse party has taken advantage of the omission.

O'Hara v. Nieury, 1 Sand. Sup. Ct., 655.

Cook v. Forrest, 18 Ill., 581.

Wood v. Fobes, 5 Cal., 62.

1 Barb., 478.

3 Rich., 60.

9 Alabama, 399.

1 Brevard, 203.

The suit was instituted, and notice given of its pendency to the United States, by filing the transcript from the record of the board of commissioners.

United States v. Ritchie, 17 Howard, 334.

And in this case the United States was in default on this very point, it not appearing that the Attorney General has filed the notice in time.

The court, being thus possessed of a cause which it was required to dispose of on the principles of equity, was authorized to permit a proceeding required in the subsequent progress of the cause to be taken nunc pro tunc for good cause, and in aid of the ends of justice. That proceeding was altogether formal, and occasioned no surprise or injury to the adverse party; and it would be against the whole spirit of the act, which required the courts to deal with the rights of the claimants according to the principles of equity, as well as against the ordinary rules of practice, to hold that the order in relation to it was void.

Mr. Stanton contended that the act of Congress was peremptory, and admitted of no discretion in the court below.

Mr. Justice McLEAN delivered the opinion of the court.


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 SEVENTIETH CONGRESS. SEss. II. Cx. 693. 1929 . 1555 south one-fourth mile ; thence east one-fourth mile ; thence south one-fourth mile ; thence east one-half mile ; thence south one and one-fourth miles ; thence east three-fourths mile ; thence north one- half mile ; thence east one-fourth mile, to the northeast corner section 19, township 3 south, range 17 east, Black Hills meridian. Thence north one-half mile ; thence east three-fourths mile ; thence south two miles ; thence east one and one-half miles ; thence north one and one-half miles ; thence east two miles ; thence south on e- fourth mile ; thence east one-fourth mile ; thence south one-fourth mile ; thence east one-half mile ; thence south one-fourth mile ; thence east one-half mile ; thence south one-fourth mile ; thence east one-half mile, to the northeast corner section 30, township 3 south, range 18 east, Black Hills meridian. Thence south three-fourths mile ; thence east one-fourth mile ; thence south one-fourth mile ; thence east one-half mile ; thence north one-fourth mile ; thence east one and one-fourth miles ; thence south one-fourth mile ; thence east three miles, to the northeast corner of section 36, township 3 south, range 18 east, Black Hills meridian. Thence north one mile ; thence east one mile ; thence north one-half mile ; thence west one-fourth mile ; thence north one-fourth mile ; thence west one-fourth mile ; thence north one and one-fourth miles ; thence west one-half mile to the point of beginning. SEC. 3. That the establishment of said monument is conditioned Highway to be co n- upon the State of South Dakota first constructing the following k to acted by South Da- upon in a manner satisfactory to the Secretary of the Interior : A highway commencing at the corporation limits of the town of Location. Interior, thence going in a northwesterly direction to and over Big Foot Pass, and through the region known as The Pinnacles ; thence in a westerly direction to Sage Creek, being a total distance of about thirty miles. SEC. 4. That the administration, protection, and promotion of said Adm ini st rat ion by Natio nal Park Serv ice. Badlands National Monument shll be exercied under the direction of the Secretary of the Interior by the National Park Service, subject to the provisions of the Act of August' 25, 1916, entitled "An Act to Vol. 41, p. 732. establ ish a Nation al Pa rk Ser vice, and fo r oth er pur poses," as amended by the Act of June 2, 1920 (Forty-first United States Stat- Pro vis o . utes at Large, page 732) : Provided, That in advance of the fulfill- Franchise for hotels, ment of the conditions herein the Secretary of the Interior may grant etc., may be granted. franchises for hotel and for lodge accommodations under the pro- visions of this section. SEC. 5 . That the Secretary of the Interior be and he is hereby Examinations, exca- y I vations, etc ., may be authorized to permit examin ations, excav ations, and gathering of permitted. objects of int erest within said monument by any person or persons whom he may de em properly q ualified to c onduct such ex aminations, excavations, or gatherings, subject to such rules and regulations as Proviso. he may prescribe : Provided, That the examinations, excavations, Limited for benefit and are undertaken only for the benefit of some reputable of e ducat iona l ins titu- gatherings y tions, etc. museum, university, college, or other recognized scientific or educa- tional institution, with a view to increasing the knowledge of such objects and aiding the general advancement of geological and zoological science. Effective when for- SEC. 6 . That this Act shall become effective if and when all of the mally dedicated by above conditions shall have been fully complied with to the satisfac- Pre sid ntio n of the tion of the President of the United States, who shall then issue a proclamation declaring that the conditions precedent herein required have been complied with, and said proclamation shall formally dedi- cate and set aside the areas herein described in accordance with the provisions of section 1 hereof. Approved, March 4, 1929.

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1607

 1556 March 4, 1929. [S. 2594.] [Public, No. 1022.1 Sh ip Island Light- hou se Reservation, Miss. Portion transferred to Shi p Is land Mili tary Res erva tion. Military reservation to be appraised and sold. Vol. 44, p. 205. e March 4, 1929. [S. 150 .]	[Public, No. 1023 .1 Naval Reserve Fares and Ma rine Corps R e- serve. Mil eage to be paid for mer offic ers of, f or travel to their homes, when released from ac- tive duty, etc ., at other places. .P rov iso . Applicable on ly to releases prior to July 1, 1922 . March 4, 1929. [S. 5512 .]	CHAP. 696 .-An Act To provide recognition for meritorious service by mem- [Public, No. 1024 .] bers of the police and fire departments of the District of Columbia. Be it enacted by the Senate and House o f Representatives o f the Unit ed St ates of Amer ica in Cong ress ass embl ed, That for the official recognition of outstanding acts in the line of duty by the me mbers of the pol ice and fire dep artments of the District of Colu m- bia there shall be awarded annually one gold medal and one silver medal, appropriately inscribed, to those two members of each department who have by outstanding or conspicuous services ea rned suc h aw ards. Comm ittee to ma ke SEC. 2. The awards shall be ma de annually by a committee of awards, five persons, consisting of the head of each department and three civilians appointed by the commissioners of said District Preference to hold- serve wi tho ut compensation on such committee of award. ers thereof in making SEC. 3. When promotions are being made in the departments the promotions. holders of such medals shall be preferred to other members of said departments, other things being equal. District of Columbia. Medals to be awarde d annually, to two mem- bers each of police and fi re departments for conspicuously meritori- ous services. SEVENTIETH CONGRESS. SESS. II. CHs . 694-696 . 1929 . CHAP. 694.-An Act Transferring a portion of the lighthouse reservation, Ship Island, Mississippi, to the jurisdiction and control of the War Department. Be it enacted by the Senate and House of Representatives of the U nited State s of Americ a in Congr ess as sembl ed, That so much of the lighthouse reservation, Ship Island, Mississippi, as the Secretary of Commerce deems unnecessary for lighthouse purposes is trans- ferred to and made a part of Ship Island Military Reservation under th e juri sdict ion a nd con trol of th e Secr etary of War. Su ch Sh ip Island Military Reservation, wi th the portion of the Ship Island lighthouse reservation hereby made a part of it, shall be reappraised and disposed of subject to all the provisions of the Act entitled "An Act authorizing the use for permanent construction at military posts of the proceeds from the sale of surplus War Department real pro perty, a nd autho rizing t he sale of certa in milit ary rese rvations, and for other purposes," approved March 12, 1926. Approved, March 4, 1929 . C H A P. 695 .-An Act For the relief of former officers of the United States Naval Reserve Force and the United States Marine Corps Reserve who were released from active duty and disenrolled at places other than their homes or pla ces of enroll ment. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the General Ac counti ng Of fice is hereby authorized to pay mile age at the rate of 8 cents per mile, computed by the shortest usually traveled route, fo r trav el ac tuall y perf ormed with in one year from date and p lace of release from active duty or disenrollment to their homes or places of enrollment, to such former officers of the United States Naval Re serve Force or U nited States Marine Corps Reserve who have been released from active service or disenrolled under honorable conditions and not at his own request at places other than their homes or places of enrollment, upon the presentation by such former officers of satis- factory evidence showing that they actually performed such travel to their homes or places of enrollment : Provided, That the provisions of this Act shall be applicable only to former officers of the United States Naval Reserve For ce or United States Marine Cor ps Re se rve who we re actually released fr om active du ty or disenrolled un der honorable conditions prior to July 1, 1922. Approved, March 4, 1929.
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Executors of De Yturbide v. United States/Opinion of the Court

This is an appeal from the District Court of the United States for the northern district of California. A grant of twenty leagues square of land, equal to four hundred square leagues, was made by the supreme Government of Mexico to President Yturbide, to be located in Texas, on 25th February, 1822, 'in recompense for his high merit, in having achieved the independence of his country.'

In 1835, the Congress of Mexico authorized his heirs to locate the land in New Mexico, or in Upper or Lower California. On the 20th of February, 1841, it was decreed by the President that the land should be located in Upper California; and on the 5th of June, orders were given by the President to the Governor of California to assign the land selected by Salvador de Yturbide, one of the heirs, in fulfilment of the grant, and the order was duly received by Pio Pico; but when Salvador was near Mazatlan, en route for California, to locate and take possession of the land, he found that port in rebellion, and was obliged to return to Mexico.

The claimants took no further proceedings till after the close of the war with the United States, and Congress had passed laws to carry into effect the treaty stipulations. They proceeded then to locate the claim on the tract described on the map, and presented their petition to the board of commissioners, asking for the confirmation of the grant. The board rejected the claim, on the ground that it had not been located prior to the change of Government.

An appeal was taken to the District Court, under the act of 1852; but the counsel of appellants, being detained from home by sickness, did not file the notice, directed by the act to be given within six months. Before any motion was made to dismiss the cause, they moved the court for leave to file the notice, nunc pro tunc, and proved, to the satisfaction of the court, that the omission to file the notice was wholly accidental; and the court thereupon allowed the motion, and ordered the notice to be filed nunc pro tunc. But, on the hearing of the cause, the court decided that, under the statute of 1852, a failure to file the notice within six months precluded any further prosecution of an appeal, under any circumstances whatever, and therefore dismissed the appeal.

The District Court, it is said, dismissed the appeal, on the ground that its own order, allowing the notice of appeal to be filed nunc pro tunc, was void.

As the above statement is clear and concise, it was copied from the plaintiff's brief.

The counsel insists, that the allowance of the appeal, after the time limited, was not void; that the language of the statute, that 'the appeal shall be considered as dismissed, in case the notice shall not be filed as required,' is directory merely.

It must be admitted, that, as to the matter of filing papers and the entry of rules under the practice of the court, such modifications may be made as may facilitate the progress of the court and the convenience of parties; and, indeed, the court may, under peculiar circumstances, avoid an act of injustice by the suspension of its rules; but this can only be done where the discretion of the court may fairly be exercised.

Where an entry is required by statute, on a condition expressed, the court is bound by the statute. The language of the act, that 'the appeal shall be considered as dismissed' where the notice is not filed as required, would seem to admit of no doubt. 'If the appeal shall be considered as dismissed,' for want of notice, how can the court say it shall not be seconsidered?

If there be no saving in a statute, the court cannot add one on equitable grounds. The 12th section of the act of 31st August, 1852, provides that, in every case in which the board of commissioners shall render a final decision, it shall be their duty to have two certified transcripts of their proceedings and decisions, and of the papers and evidence on which the same were founded, made out, one of which transcripts shall be filed with the clerk, shall ipso facto operate as an appeal for the party against whom the decision shall be rendered; and if such decision shall be against the private claimant, it shall be his duty to file a notice with the clerk of the court, within six months thereafter, of his intention to prosecute the appeal; and if the decision shall be against the United States, it shall be the duty of the Attorney General of the United States, within six months after receiving the said transcript, to cause to be filed with the clerk aforesaid a notice that the appeal will be prosecuted by the United States; and on the failure of either party to file such notice with the clerk, the appeal shall be regarded as dismissed.

This seems to be mandatory on the court, and authorizes the exercise of no discretion.


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1608

 SEVENTIETH CONGRESS. SESS. II. Cxs. 696-698 . 1929 . 1557 SEC. 4. To provi de for the cost of such medals there is hereby ated forto be appropri- authorized to be appropriated annually such sum as the Commis- sioners of the District of Columbia may deem necessary for the purpose. Approved, March 4, 1929 . CHAP. 697.-An Act To extend the time for completing A the construction of [ IH .R . 17311 31 a bridge across the Mississippi River at or near Cairo, Illinois. [Public, No. 1025 .] Be it enacted by the Senate and House o f Representatives o f the United States of America in Congress assembled, That the time for bfississippi River . Time e xtended for comple ting the constru ction of a bridg e across the Mis sissippi River bridging , at Cairo, ni. at or near Cairo, Illinois, authorized to be built by the Cairo Bridge and Terminal Company, its legal representatives, successors, or Voi.4i,p . 231 . assigns, by the Act of Congress approved April 2, 1926, is hereby extended to April 2, 1930. SEC. 2. The right to alter, amend, or repeal this Act is hereb y Amendme nt. expressly reserved. Approved, March 4, 1929 . CHAP. 696 .-An Act To amend the Act approved June 22, 1926 entitled	H March . R .1i32z 1 "An Act to amend that part of the Act approved August 29, 1916, relative to the [Pu blic, No . 1026 .1 retirement of captains, commanders, and lieutenant commanders in the line of the Navy ." Be it en act ed by the Senate and House of Representatives of the United States o f America in Congress assembled, That the Act Nav ement of line appro ved J une 22, 192 6 (Fo rty-fo urth Statu tes at Large, page 781, officers . chapter 649 ; United States Code Appendix, title 34, section 311a), ea oL44,p .7sl,amena- entitled "An Act to ame nd that part of the Act ap proved August 29, 1916, relati ve to the retire ment of ca ptains, com mande rs, an d lieutenant commanders in the line of the Navy," is hereby amended by stri king out the fig ures "1929" app earing i n the fi rst sent ence of said Act, and in lieu thereof inserting the figures " 1931 ", so that as amended said Act shall read as follows " That until March 5, 1 931, the pr ovisi ons c ontain ed in the Act Time ext ended for modification of age and approved August 29, 1916 (Thirty-ninth Statutes at Large, page serv ice requi reme nts for retirement and pro- 579), which provide for the retirement of captains, commanders, motion of fine cap- and lieutenant commande rs of the line of the Navy who are more tai`ns, etc. p. 579. than fifty-six, fifty, and forty-five years of age, respectively, and who h ave become ineligible for promotion on account of suc h age, be, and the same are hereby, modified to the extent that captains, commanders, and lieutenant commanders shall not become ineligible for promotion and shall not be retired until they have completed thirty-five, twenty-eight, and twenty-one years, respectively, of com- missioned service in the Navy, and upon the compl etion of such ser vi ce, if not recommended for promotion, th ey sh all be retired without regard to age under the conditions specified in said Act- .Proviso. Provi ded, That the commissio ned service of Naval Academ y grad- commicsd m rad- ice of Ac adey grad- uates, for the purpose of th is Act only, shall be computed from uates, computed from June 30 of end of aca- June 30 of the calendar year in which the class with which they demic cours e. graduated completed its academic course, or, if its academic course was more or less than four years, from June 30 of the calendar year in which it would have completed an academic course of four years." Approved, March 4, 1929.

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1609

 1558 SEVENTIETH CONGRESS. SESS. II. Cns. 699, 700 . 1929 . March 4, 1929 . [II. R. 12106.] [Public, No. 1027 .] CHAP. 699.-An Act To erect a national monument at Cowpens battle gro un d. Be it enacted by the Senate and House o f Representatives o f the S . Battle of Cowpens, United States o f America in Congress assembled, That in order to Acquiring la nd an- preserve that part of the Cowpens battle grounds near Ezell, tborized, for erecting monument to corn- Cher okee C ounty, Sout h Caro lina, where Gener al Dan iel Mo rgan, mem°r at°' comm anding, part icipa ted in the B attle of Co wpens on the 17th day of January, 1781, ° the Secretary of War be, and he is hereby, authorized and directed to acquire, by gift, not more than one acre of land on w hich he shall erect or cau se to be erect ed a suitable monume nt to commem orate said battle. Sum authorized for SEC. 2. To enable the Secretary of War to carry out the provisions of this Act, to accept a deed for the necessary lands, to make necessary surveys, maps, markers, pointers, or signs marking boundaries, for opening, constructing, or repairing necessary roads and streets and construct ing markers a nd a suitable monument, for salaries for labor and services, for traveling expenses, supplies, and materials, the sum of $25,000, or so much thereof as may be necessary, is hereby authorized to be appropriated, out of any money in the Treasury not otherwise appropriated, to remain available until .expended, and the disbursements under this Act shall be reported by the Secretary of War to Congress. Approved, March 4, 1929. expenses. Available until pended . ex- March 4, 1929. CHAP. 700 .-An Act To amend the second paragraph of section 4 of the [II. R. 13936.1 [Public, Farm Loan Act, as amended. , No.1028 Be it enacted by the Senate and House of Representatives of the Unite d Sta tes o f Am erica in C ongre ss as sembl ed, That the second paragraph of section 4 of the Federal Farm Loan Act (U . S . C ., title 12, sec . 672), as amended, is amended to read as follows : "The Federal Farm Loan Board shall establish in each Federal land bank dist rict a Federa l land bank, with its princ ipal office located in such city within the district as said board shall designate . Each Federal l and bank shal l include in its title the name of the city in which it is located . Subject to the approval of the Federal Farm L oan Bo ard, a ny Fe deral land b ank ma y est ablish branc hes within the land bank district . Subject to the approval of the Federal Farm Loan Board and under such conditions as it may prescribe, the provisions of this Act are extended to the island of Porto Rico and the Territory of Alaska ; and the Federal Farm Loan Board shall designate a Federal land bank which is hereby authorized to estab- lish a branch bank in Porto Rico and a F ederal land ba nk which is hereby authorized to establish a branch bank in the Territory of Alaska. Loans made by each such branch bank shall not exceed the sum of $25,000 to any one borrower and shall be subject to the restrictions and provisions of this Act (U . S. C., title 12, ch . 7), except that each such branch bank may loan direct to borrowers, and, subject to such regulations as the Federal Farm Loan Board may prescribe, the rate charged borrowers may be 11 /2 per centum in excess of the rate borne by the last preceding issue of farm-loan bonds of the Federal land bank with which such branch bank is con- nect ed : Provi ded, That no loan shall be made in Porto Rico or Alaska by such branch bank for a longer term than twenty years." Approved, March 4, 1929 . Federal land banks. Vol . 42, p. 1474, amended . U.S.Code, p.300. Establishment of, in each land bank district . Bra nches author ized . Extension of branch- es to Porto Rico and Ala ska . Lo ans allowed by such branch banks not exceeding $25,000 . U.S . Code, p. 302. Interest rate . Proviso . Term limit of loans in Po rto Rico,or A laska.

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 SEVENTIETH CONGRESS. SEss. II. CHs . 701, 702. 1929 . 1559 CHAP. 701 .-An Act Continuing the powers and authority of the Federal March 4, 1929. Radio Commission under the Radio Act of 1927, and for other purposes. [H. R . 15430.] [Public, No. 10291 . Be it enacted by the Senate and House of Representatives of the Federal Radio Com- United States o f America in Congress assembled, That al l the powers mission. and authority vested in the Federal Radio Commission by the Radio nP wer, o mberinu d Act of 192 7, app roved Februa ry 23, 1927, shall contin ue to be ves ted 19 29 . 31, in and exercised by the commission until December 31, 1929 ; and ad A111,, p. 373, amend- wherever any reference is made in such Act to the period of one year Vol.44,p. 1162. after the firs t meeting of the c ommissio n, such r eference shall be held to mean the period until December 31, 1929. SEC. 2 . The period during which the members of the commission ter ra a` of salary ea- shall receive compensation at the rate of $10,000 per annum is hereby extended until March 16, 1930. SEC. 3 . Prior to January 1 5 1931, the licens ing au thorit y shal l Limitation o n licenses prior to Sanu- grant no license or renewal of license under the Radio Act of 1927 ary 1, 1931 . for a broadcasting stafion for a period to exceed three months and no license or renewal of license for any other class of station for a peri od to exceed one y ear. SEC. 4. The term of office of each member of the commission shall Term of present com - mission. expire on February 23, 1930, and thereafter commissioners shall be Commissionersthere- appointed for terms of two, three, four, five, and six years, respec- after. tively, as provided in the Radio Act of 1927. SEC. 5 . The c ommiss ion is autho rized to app oint a genera l coun sel Appointment of gen- eral co sel, three as- and pay him a salary of $10,000 per annum and not to exceed three sista nts, etc ., aut hor - assistants to such general counsel, at salaries of S7,500 each per ized. annum. It may appoint such other legal assistants as it may from time to time find necessary for the proper performance of its duties and as from time to time may be appropriated for by Congress. Approved, March 4, 1929. March 4, 1029. CHAP. 702 .-An Act Authorizing Eugene Rheinfrank, his heirs, legal rep- 	[H. R. 15715 .) resentatives, and assigns, to construct, maintain, and operate a bridge across the [Public, No. 1030 .] Maumee River at or near its mouth . Be it enacted by the Senate and House o f Representatives o f the Ma umee River . United States o f America in Congress assembled, That in order to Eu gene Rheinfr ank, pro mote i nterst ate co mmerce, impr ove th e posta l serv ice, a nd pro vide cay bri ge, in Lucas for milit ary an d othe r purp oses, Eugene Rheinf rank, his he irs, l egal representatives, and assigns, be, and is hereby, authorized to construct, maintain, and operate a bridge and approaches thereto across the Maumee River, within the county of Lucas, State of Ohio, at a point suitable to the interests of navigation, at a point at or near its mouth, or entrance into Maumee Bay, in accordance with the provisions of con struction . the Act entitled "An Act to regulate the construction of bridges over Vol. 34, p. 84. .na vigabl e wate rs," a pprove d Marc h 23, 1906, a nd sub ject t o the con- ditions and limitations contained in this Act . SEC . 2. After the completion of such bridge, as determined by the Aegnisitio o anthor- ized, after co Secretary of War, either the State of Ohio, any political subdivision by Ohio, etc thereof within or adjoining which any part of such bridge is located, or any two or more of them jointly, may at any time acquire and take over all right, title, and interest in such bridge and its approaches, and any interest in real property necessary therefor, by purchase ce aon dsmna tion pro - or by condemnation or expropriation in accordance with the laws of such State governing the acquisition of private property for public purposes by condemnation or expropriation . If at any time after Compensation if ac- quir ed by conde mna- the expir ation of fiv e year s afte r the complet ion of such bridge the t ion. same is acquired by condemnation or expropriation, the amount of damages or compensation to be allowed shall not include good will, going value, or prospective revenues or profits, but shall be limited Li mita tions.

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United States v. Heirs of De Haro

THIS was an appeal from the District Court of the United States for the northern district of California.

The facts of the case and state of the title are fully set forth in the opinion of the court.

It was argued by Mr. Stanton for the United States, and by Mr. Phillips for the appellees.

The principal question in the case was respecting the identity of the houses or the land granted with those claimed in the petition. Mr. Phillips contended that there could be no stronger proof of this, than that possession had been constinuous during the whole time since the date of the grant.

Mr. Justice McLEAN delivered the opinion of the court.

title: United States v. Heirs of De Haro


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1611

 1560 SEVENTIETH CONGRESS. SEss. II. Ca. 702. 1929. Tol ls unde r State, ate ., op eration. Rates applied to op- eration, sinking fund, etc. Maintenance as free bridge, etc ., after amor tizing costs, etc. Recor d of exp endi- t ures and recei pts . Sworn statement of construction costs to be fil ed after comp letion. Ex amination by Sec. retary of War. Findings of Secre- tary conclusive. Right to sell, etc ., conferred. Const ruction con - tracts to be let to lowest bidder. to the sum of (1) the actual cost of constructing such bridge and its approaches, less a reasonable deduction for actual depreciation in value ; (2) the actual cost of acquiring such interests in real property (3) actual financing and promotion cost, not to exceed 10 per centum of the sum of the cost of constructing the bridge and its approaches and acquiring such interests in real property ; and (4) actual ex- penditure s for necessar y improvement s. SEC. 3. If such bridge shall at any time be taken over or acquired by the State of Ohio, or by any municipality or other political sub- division or public agency thereof, under the provisions of section 2 of this Act, and if tolls are thereafter charged for the use thereof, the rates of toll shall be so adjusted as to provide a fund sufficient to pay for the reasonable cost of maintaining, repairing, and operating the bridge and its approaches under economical management, and to pro- vide a sinking fund sufficient to amortize the amount paid therefor including reasonable interest and financing -cost as soon as possible under reasonable charges, but within a period of not to exceed twenty years from the date of acquiring the same. After a sinking fund sufficient for such amortization shall have been so provided, such bridge shall thereafter be maintained and operated free of tolls, or the rates of toll shall thereafter be so adjusted as to provide a fund of not to exceed the am ount necessar y for the pro per maintenanc e, repair, and operation of the bridge an d its approach es under eco- nomical management. An accurate record of the amount paid for acquiring the bridge and its approaches, the actual expenditures for maintaining, repairing, and operating the same, and of the daily tolls collected shall be kept and shall be available for the information of all pe rsons i nteres ted. SEC. 4 . Eugene Rheinfrank, his heirs, legal representatives, and assigns, shall within ninety days after the completion of such bridge file with the Secretary of War, and with the highway department of the State of Ohio, a sworn itemized statement showing the actual original cost of constructing the bridge and its approaches, the actual cost of acquiring any interest in real property necessary therefor, and the actual f inancing and promotion cos ts. The Secretary of War may and, at the request of the highway department of the State of Ohio, shall at any time within three years after the completion of such bridge, investigate such costs and determine the accuracy and the reasonableness of the costs alleged in the statement of costs so filed, and shall make a finding of the actual and reasonable costs of constructing, financing, and promoting such bridge. For the purpose of such investi gation the sai d Eugene Rhei nfrank, his heirs, legal representatives, and assigns, shall make available all records in connection with the construction, financing, and pro- motion thereof. The findings of the Secretary of War as to the reasonable costs of the construction, financing, and promotion of the bridge shall be conclusive for the purposes mentioned in section 2 of this Act, subject only to review in a court of equity for fraud or gross mistake. SEC. 5 . The right to sell, assign, transfer, and mortgage all the rights, powers, and privileges, conferred by this Act is hereby granted to Eugene Rheinfrank, his heirs, legal representatives, and assigns, and any corporation to which or any person to whom such rights, powers,-and privileges may be sold, assigned, or transferred, or who shall acquire the same by mortgage foreclosure or otherwise, is hereby authorized and empowered to exercise the same as fully as though conferred herein directly upon such corporation or person. SEC. 6 . All contracts ma de in connecti on with the c onstruction of the bridge authorized by this Act and which shall involve the expenditure of more than $5,000 shall be let by competitive bid-

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1612

 SEVENTIETH CONGRESS. SEss. II. Cns. 702, 703. 1929. 1561 ding. Such contracts shall be advertised for a reasonable time in Avertising, etc « some newspaper of general circulation published in the State in which the bridge is located and in the vicinity thereof shall be required and the contracts shall be awarded to the lowest responsible bidder. Verified copies or abstracts of all bids received and of the bid or bids accepted shall be promptly furnished to the Contract void for highway department of the State in which such bridge is located. A violations. failure to comply in good faith with the provisions of this section shall render null and void any contract made in violation thereof, and the Secretary of War may, after hearings, order the suspension of all work upon such bridge until the provisions of this section shall have been fully complied with. SEC. 7. The right to alter, amend or repeal this Act is hereby Amendmen t. expressly reserved. Approved, March 4, 1929. March 4, 1929. CHAP. 703 .-An Act To amend the World War Adjusted Compensation [H . R. 16395.1 Act, as a mended, by r educing the rates of inte rest on loan s made by th e Veterans' [Public, No. 1031 .] Bureau upon the security of adjusted service certificates, and for other purposes. Be it enacted by the Senate and House of Representativ es of th e United St ates o America in Congress assembled, That subdivision world war Adjusted f Compensation Act. (i) of section 502 of the World War Adjusted Compensation Act, Vol. 44, p. 1359, as amended, is amended to read as follows : amended. "(i) The Director of the United States Veterans' Bureau is author- Loan privileges . Use of life insurance ized, through such officers and at such regional offices, suboffices, and fund allowed for loans hospitals of the United States Veterans' Bureau as he may designate, on service certificates . and out of the United States Government life insurance fund estab- lished by section 17 of the World War Veterans' Act, 1924, as Vol. 43, p. 612. amended, to make loans to veterans upon their adjusted service cer- tificates in the same amounts and upon the same terms and condi- tions as are applicable in the case of loans made under this section by a bank, and the provisions of this section shall be applicable to such loans ; except that the rate of interest shall be 2 per centum per Rate of interest . annum more than the rate charged at the date of the loan for the discount of ninety-day commercial paper under section 13 of the vol.42, p.1479. Federal Reserve Act by the Federal reserve bank for the Federal reser ve dist rict i n which is loc ated t he regi onal of fice, suboffi ce, or hospital of the United States Veterans' Bureau at which the loan centot to exceed 6 per is made, but in no event shall the rate of interest exceed 0 per centum per annum ." SEC . 2 . Sec tion 705 of t he World War A djusted Compe nsation Act, e Vo1 .44,p .830,amena- as amended, is amended to read as follows " SEC. 705 . Whenever it appears to the director, by evidence clear cecficatest° ., ser vice and satisfactory to him, that any adjusted service certificate has, Provisions for issuing without bad faith upon the part of the person entitled to payment duplicates, etc' thereon, been lost or destroyed, and such adjusted service certificate is identified by number and description, he shall, under such regula- tions and with such restrictions as to time and retention for security or otherwise as he may prescribe, issue a duplicate thereof of like value in all respects to the original certificate and so marked as to show the original number of the certificate lost or destroyed and the Bond from law ful date thereof. The lawful holder of such certificate who makes appli- holder. cati on for a dupl icate s hall fi le in the Uni ted Sta tes Ve terans' Bureau a bond in a penal su m of the face value of such lost or destr oyed certificate, with two good and sufficient sureties, residents of the United States, to be approved by the director, with condition to indemni fy and save h armless the Un ited States f rom any claim upon
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